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Lumar v. Monsanto Co.

United States District Court, E.D. Louisiana

June 13, 2019

DWAYNE LUMAR
v.
MONSANTO COMPANY

          ORDER AND REASONS

          KAREN WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before the Court on consent of the parties under the authority of 28 U.S.C. § 636(c) is a Motion for Summary Judgment (Rec. Doc. No. 41) filed by the defendant, Monsanto Company (“defendant” or “Monsanto”) seeking judgment as a matter of law to dismiss the plaintiff's claims of race discrimination or harassment in violation of Title VII of the Civil Rights Act of 1964 as codified in 42 U.S.C. § 2000e et seq. (“Title VII”), disability discrimination or harassment in violation of the amended Americans with Disabilities Act (“ADA”) codified at 42 U.S.C. § 12101, et seq., and hostile work environment related to these violations. The plaintiff filed an opposition and supplemental opposition to the motion. Rec. Doc. Nos. 47, 54. Monsanto replied to plaintiff's opposition. Rec. Doc. No. 57. The motion was submitted on the briefs.

         I. Factual and Procedural Background

          The plaintiff, Dwayne Lumar (“plaintiff” or “Lumar”), an African American male who works for the defendant, Monsanto as a Senior Production Technician struggled with his weight all of his life.[1] In March 2013, he was offered employment by Monsanto to work as a Production Technician after being interviewed and completing a physical assessment.[2] Shloe Jeffery (an African-American and head of Human Resources at the plant), Dana Parker (a Caucasian and Human Resource Generalist), and Frank Piascik (a Caucasian who became plaintiff's supervisor), each played a role in plaintiff's interview process and/or hiring.[3]

         After accepting the offer, Lumar underwent a physical examination in Monsanto's medical department during which his weight was measured which was not communicated to Human Resources.[4] After the physical examination, Lumar began working in the position for a 120-day period in which his performance was being evaluated which included both physical and written tasks.[5] As a Production Technician in GI Dry Unloading, Lumar is required to wear personal protective equipment (“PPE”), climb portable ladders, and use a safety harness to perform certain job duties.[6] At the time, plaintiff weighed approximately 465 pounds.[7]

         Shloe Jeffery, the Human Resources Lead that oversees the Human Resources Operations at the Luling location of Monsanto indicated that the employees involved in making the decision were not aware of Lumar's weight. Jeffery later disclosed Lumar's weight after safety concerns were raised during the 120-day qualification process regarding the weight ratings for the equipment that Lumar was required to use to complete the process.[8] In late June- early July 2013, Piascik inquired about the allowable rung loading that the existing structural ladder could handle. He consulted with Frederick Osterloh, a contractor who advised that the rungs can handle the suggested loading of 400lbs.[9]

         In August 2013, at the end of the qualification period, Lumar was advised that he did not meet 20 percent of the job's requirements due to his weight of 474 lbs, which exceeded the safety weight ratings for the tank ladders.[10] Lumar was thereafter told that in order to qualify for the job he would have to lose weight. There was no suggestion of how he should lose the weight, but he wanted to know how much weight he had to lose in order to qualify for the job.[11] Lumar testified that he was given options on how to lose weight, which included diet and weight loss surgery.[12]Lumar did not feel pressured or required to undergo the surgical procedure recommended by Monsanto.[13] He thought that it was just a list of possible options.[14]

         Lumar understood that he could have been fired for not meeting the qualifications.[15]However, instead of terminating him, Monsanto gave Lumar an additional two months to lose weight.[16] Monsanto also continued to pay his salary during the entire extended period.[17] During this “extended qualification period, ” Lumar was in contact with the on-site nurse, Nancy Miller, who provided dietary tips and other suggestions for weight loss including advising him that he could join Weight Watchers.[18] After the meetings with Ms. Miller he loss some weight and worked with Weight Watchers. However as of October 30, 2013 he was still well over 400 lbs in excess of the load limit of the ladders.[19]

         Lumar met with Parker and Piascik in September 2013 to discuss his weight loss progress.[20]At the end of the extended qualifying period in October 2013, plaintiff still weighed over 400 pounds.[21] Again, rather than terminate Lumar, Monsanto gave him an additional six months for continued weight loss.[22]

         Monsanto assisted Lumar with applying for short-term disability, which was approved by its third-party benefits administrator at the end of October 2013.[23] Lumar was given six months off of work to dedicate time to lose weight and get healthy and was paid his full salary.[24]

         While on leave, Lumar ultimately opted to undergo a gastric surgery to lose weight.[25] To have the surgery, among other requirements, Lumar met with his surgeon, Dr. Redman, to discuss the procedure and matters of consent and with a psychologist, Dr. Wolfson, to prepare for the surgery.[26] Plaintiff told Dr. Wolfson he would be satisfied to get to 300 pounds.[27] Lumar's wife supported him having the procedure to lose weight and get healthier, and she herself had the same surgery by the same doctor a few months later.[28]

         Lumar had the surgery in March 2014 and lost significant weight, ultimately getting down to 350 pounds.[29] Because he achieved a weight under 400 pounds, he was released to return to work after eight months on April 29, 2014 and went through the qualification process again under Piascik's supervision.[30] Lumar eventually qualified for the Production Technician position and received a pay raise for successfully completing the qualification process in or around September 2014.[31] Monsanto also ordered new coveralls for Lumar to fit due to his size change after the weight loss.[32]

         Since qualifying for his position, Lumar has been promoted from Trainee to Qualified Technician to Technician I to Technician II and to Senior Technician, which is the highest level and maximum pay for a Production Technician.[33] He has received “Strong” or “Very Strong” on all performance reviews since 2014, including two by Piascik.[34] Piascik also was his supervisor when he first qualified and when he was promoted each time through the Technician II level.[35]Lumar also has had no issues with his other supervisors after Piascik, who were Kenneth Waldrop and Jeffery Billings.[36]

         In July 2014, Monsanto re-emphasized the importance of safety in the plant and instructed all leaders to provide all employees with important safety education to increase awareness regarding the safe use of equipment, including being fully aware that personnel exceeding the equipment weight ratings may not be able to safely perform aspects of their job.[37] All employees received notice of the 300 pound weight rating for some equipment, including ladders and fall protection devices. Monsanto further instructed anyone over that weight to immediately notify managers, medical personal, human resources or safety officers to review for reasonable accommodations.[38]Weight notifications were added to the annual physical exams and new candidates for employment were notified of weight limits for the equipment.[39]

         Since he reached his qualifying position, Lumar has regained the weight and now weighs over 400 pounds again.[40] Lumar's weight has not affected any major life activities or his ability to work.[41] At work, he is only restricted from performing tasks that require him to use equipment not rated for his weight, which he acknowledges would be dangerous and a threat to his safety.[42]

         Lumar is still employed at Monsanto in the job of Senior Production Technician in the GI dry unloading department, and he has had no adverse employment actions taken against him.[43]Lumar has never requested to change positions or “bid out” to, i.e. apply for, another open position in any department at the Monsanto plant.[44]

         According to Lumar he was treated less favorably than all “[e]mployees, period, ” without distinction of race, and “[a]ny employee” whether black or white who was over 400 pounds and not required to go on medical leave to lose weight.[45] Lumar contends that three other overweight employees (one of whom is African American) were not required to lose weight, or go on short term disability to do so. As a result, he contends that he was treated differently.

         II. The Motion

         Monsanto asserts that it is entitled to summary judgment based on the uncontested facts deemed admitted by the plaintiff and seeks to strike plaintiff's improperly filed and inadmissible evidence.[46] Monsanto contends that: (1) plaintiff has not alleged or established any underlying psychological disorder as a cause for his obesity as required by the ADA and therefore cannot establish any discrimination or harassment under the ADA; and (2) that he has not made a prima facie case of race or disability discrimination.

         Monsanto also argues that Lumar cannot now claim that it regarded him as disabled because he did not submit the claim for administrative review with the EEOC.[47] Monsanto further contends that Lumar has failed to identify any employee, white or black, that was treated more favorably; namely no Production Technicians with the same supervisors, training, or job duties and Lumar has failed to present proof of their weights during qualifying or currently.

         Lumar opposes the motion. He contends that: (1) morbid obesity is considered a disability under the ADA and that no proof of a related psychological condition is required; and (2) Monsanto regarded him as obese, therefore should be liable.

         Lumar, supporting his regarded as disabled argument contends that: (1) climbing stationary ladders at the plant are not an essential daily function of his job; (2) they posed no difficulty for him; and (3) were only used about ten times a year. In fact, Lumar contends that he could climb ladders without need for accommodations by Monsanto and yet, he was required to lose weight or be fired, which created a hostile work environment.

         III. Standard of Review for Motion for Summary Judgment

          Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if resolving that fact in favor of one party could affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Poole v. City of Shreveport, 691 F.3d 624, 626-27 (5th Cir. 2012).

         Where the moving party bears the burden of proof at trial, that party must support its motion with “credible evidence . . . that would entitle it to directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). In such a case the moving party must “establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original); see also Access Mediquip, LLC v. United Healthcare Ins. Co., 662 F.3d 376, 378 (5th Cir. 2011). Credible evidence may include depositions, documents, affidavits, stipulations, admissions, interrogatory answers, or other materials. Fed.R.Civ.P. 56(c). Moreover, in evaluating a motion for summary judgment by the party with the underlying burden of proof, the Court considers the substantive evidentiary burden of proof that would apply at the trial on the merits. Anderson, 477 U.S. at 252.

         Once the moving party has made its showing, the burden shifts to the non-moving party to produce competent evidence that demonstrates the existence of a genuine issue of fact. Engstrom v. First Nat. Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24). All justifiable inferences are to be drawn in the non-moving party's favor. Anderson, 477 U.S. at 255. However, “[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (quoting TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002)); Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for Summary Judgment.”); see also Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (stating that “mere conclusory allegations” are insufficient to defeat a motion for summary judgment).

         A plaintiff's mere subjective beliefs fail to establish that a material fact issue is in dispute. Chambers v. Sears Roebuck & Co., 428 Fed.Appx. 400, 419 n.54 (5th Cir. 2011); Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 (5th Cir. 2009); Strong v. Univ. Health Care Sys., LLC, 482 F.3d 802, 807 (5th Cir. 2007); Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004). Though the Court may not evaluate evidence on a motion for summary judgment, the Court may determine the “caliber or quantity” of evidence as part of its determination whether sufficient evidence exists for the fact-finder to find for the non-moving party. Anderson, 477 U.S. at 254.

         Moreover, the summary judgment standard in an employment discrimination matter under Title VII and the ADA is premised upon a burden-shifting analysis from McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. Thereunder, the Court must first determine if the plaintiff has established a prima facie case of discrimination, sufficient to raise an inference of discrimination. McDonnell-Douglas, 411 U.S. at 802; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002) (finding that in Title VII actions, a prima facie standard is used for evidentiary purposes on summary judgment); EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.2009) (McDonnell-Douglas burden-shifting framework applies to ADA claims on summary judgment); Powell v. Rockwell Int'l Corp., 788 F.2d 279, 285 (5th Cir. 1986) (“The McDonnell-Douglas formula . . . is applicable . . . in a . . . summary judgment situation.”).

         “Establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Tex. Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 254 (1981); see Turner v. Kansas City Southern Railway Co., 675 F.3d 887, 893 (5th Cir. 2012) (citing Burdine, 450 U.S. at 248). “The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to different factual situations.” McDonnell-Douglas, 411 U.S. at 802 n.13.

         “There is no doubt that vague or conclusory allegations of discrimination or harassment are not enough to survive summary judgment.” Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998). “Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation omitted) (emphasis in original); accord Duron v. Albertson's LLC, 560 F.3d 288, 291 (5th Cir. 2009).

         IV. Challenge to Evidence

         Before considering the substance of the motion, the Court will consider Monsanto's contention that exhibits 1 and 7 should be disregarded, Exhibit 1 is the 365-page investigative file of the Employment Equal Opportunity Commission Investigative (EEOC). Monsanto contends that the EEOC investigative file contains hearsay statements regarding the attempt to conciliate the claim; it is inadmissible summary judgment evidence. Monsanto also contends that Exhibit 7, the EEOC determination letter, while it can be admissible that the Court is not bound by the determination. Rec. doc. 57.

         Additionally, Monsanto contends that Exhibits 3, 6, 9 and 10, and the majority of Exhibits 13-15, the deposition transcripts of Piascik, Jeffery and Parker should be disregarded by the Court because the plaintiffs brief fails to cite to them. Monsanto suggests that because Lumar filed the deposition transcripts of Piascik, Jeffery and Parker indiscriminately, that the Court should disregard any part of the testimony not specifically cited too.

         Finally, Monsanto contends that the Court should disregard two unsigned declarations of Lumars coworkers; Cardell Sandoph and Craig Duronselt because they lack foundation, are speculative, hearsay and not based upon personal knowledge. While Lumar filed a supplemental memo in response to Monsanto's motion, he did not address the adequacy of the evidence submitted in response to the motion.

         To be entitled to consideration on summary judgment, the evidence supporting the facts set forth by the parties must be such as would be admissible in evidence at trial. See FED. R. CIV. P. 56(c); see also Sakaria v. Trans World Airlines, 8 F.3d 164, 171 (4th Cir. 1993) (finding that the district court properly did not consider inadmissible hearsay in an affidavit filed with motion for summary judgment); Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993) ("The summary judgment inquiry thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof in the form of admissible evidence that could carry the burden of proof in his claim at trial.")

         1. EEOC Investigative File

         The first form of evidence submitted by Lumar is the EEOC's investigative file. However, the Fifth Circuit has made clear that unsworn contents of an EEOC's investigation file do not meet the requirements of Rule 56(c). Cruz v. Aramark Servs., Inc., 213 Fed.Appx. 329, 332-33 (5th Cir. 2007) (“[W]hile the EEOC report may fall within the business records hearsay exception, the same cannot be said of the entire EEOC file. The business records hearsay exception applies to the EEOC's report and determination, but it does not apply to the underlying material collected during the EEOC investigation.”). In addition, documents in the EEOC file are not admissible absent an independent hearsay exception. Fed.R.Evid. 803(8)(A)(iii) (delineating a hearsay exception for the “factual findings from a legally authorized investigation”); McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 400 (5th Cir. 1985) (“EEOC determinations and findings of fact, although not binding on the trier of fact, are admissible as evidence in civil proceedings . . . However, neither under the [circuit] precedents nor under Rule [803(8)(A)(iii) ] is the entire EEOC file admissible”); see also Aramark Servs., Inc., 213 Fed.Appx. at 332 (requiring that inadmissible EEOC statements and documents satisfy a hearsay exception). Therefore while some aspects of the EEOC file may be admissible and subject to review, only sworn statements and the actual EEOC determination letter, Exhibit (7) are admissible. Therefore, Monsanto's request to strike Exhibit 1 in its entirety is denied. To the extent there are any sworn statements, they are admissible. Additionally, the EEOC letter is admissible, although not binding.

         2. Deposition Testimony Not Cited.

         Monsanto also seeks to strike the indiscriminately cited depositions of Piascik, Jeffery and Parker. Monsanto suggests that the Court should only consider the deposition excerpts cited in the plaintiff's supporting memorandum and points out that Monsanto only cited to three pages of Jeffery's deposition and one page of Parker's deposition.

         FRCP Rule 56 (c) (3) provides that “the court need consider only the cited materials.” It does not impose upon the district court a duty to sift through the record in search of evidence to to support a party's opposition to summary judgment. Jackson v. Cal-Western Pacaging Corp., 602 F.3d 374, 379-80 (5th Cir. 2010). The Court further held that when evidence exists in the summary judgment record, but the non-movant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. See Malacara v. Garber, 353 F.3d 393, 405 (5ht Cir. 2003)

         The evidence of record shows that Parker's deposition consists of 88 pages. Jeffery's deposition is 72 pages and Piascik's deposition is 136 pages. While the Court is under no duty to sift through the depositions of these witnesses, the supporting memoranda of the plaintiff makes specific reference to the page and line of the relevant testimony of Piascik and Jeffery. However, the degree to which Parker's deposition is attached but not referenced in the opposition, it will not be considered.

         3. Unsigned Declarations

         Next Monsanto challenges the declarations of Cardel Sandolph and Craig Duronselt. It contends that their declarations should be disregarded because they lack foundation, are speculative or otherwise not based upon personal knowledge. (Rec. doc. 57) Monsanto also points out that the declarations have typed names instead of handwritten signatures, which does not comply with 28 U.S.C. §1746. As a result, Monsanto contends that neither declaration is competent summary judgment evidence.

         FRCP Rule 56 (c)(4) provides that an affidavit or declaration used to oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters. There must be sufficient information within the affidavit or declaration to allow the court to conclude that the affiant's assertion is based upon personal knowledge. 5 Brumfield v. VGB, Inc. 2018 U.S. Dist. LEXIS 4405, at * (E.D. La. Jan. 10, 2018); Isquith v. Middle South Utitlities, inc., 847 F.2d 186, 194-95 (5th Cir. 1988)(summary judgment requires properly verified affidavits); Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc. 20 F.Supp.3d 519, 530 (e. D. Pa. 2014).

         In this case the affidavits clearly do not contain the proper signatures, and nor do they adequately explain how and why either Sandolph or Duronselet are competent to testify. Regarding the signatures, the affidavit only contains typed notations and not signatures. However, signatures are required to be handwritten and typed notations like the ones that are present on the declarations in this case are insufficient and therefore not competent summary judgment evidence. Brumfield at 2. There is also no evidence that qualifies them to make statements regarding the weight limits of the equipment, Lumar's job performance, retentions and work restrictions. Therefore, for these reasons, neither Sandolph's nor Duronselet's Declaration will be considered in this opinion.

         4. Un-Authenticated & Irrelevant ...


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