Eаrnest HAMMOND, Jr., Plaintiff-Appellant v. JACOBS FIELD SERVICES, Defendant-Appellee.
No. 12-30222.
United States Court of Appeals, Fifth Circuit.
Dec. 5, 2012.
497 F. App‘x 377
Nottingham, however, must still show that he was discriminated against based on that disability. He argues on appeal that because he was allegedly left on the floor of the transit van from Randall County to TDCJ and not given the opportunity to use the restroom, he was discriminated against and not given safe transit as a disabled person. That claim, however, does not establish discrimination based on disability: The ADA is not violated by “a prison‘s simply failing to attend to the medical needs of its disabled prisoners.”7 There is no evidence that the allegedly improper action of leaving Nottingham on the floor of the transit van had any connection to his alleged disability. There is no indication that he was treated differently because of his disability. He thus has not established a claim under the ADA.
We finally address Nottingham‘s contention that the district court should have appointed counsel. The denial of counsel is reviewed for abuse of discretion. United States v. Nichols, 30 F.3d 35, 36 (5th Cir.1994). Nottingham moved for counsel under
The judgment is in all respects AFFIRMED.
Dan Michael Scheuermann, Esq., Law Offices of Dan M. Scheuermann, Baton Rouge, LA, for Plaintiff-Appellant.
Vicki M. Crochet, Esq., Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Defendant-Appellee.
PER CURIAM:*
In this case, we are asked to dеcide whether Defendant-Appellee Jacobs Field Services North America was entitled to summary judgment on Plaintiff-Appellant Earnest Hammond, Jr.‘s claims for discrimination based on his race and disability in violation of the Americans with Disabilities Act (“ADA“) and Title VII of the Civil Rights Act of 1964, and for retaliation. The district court granted summary judgment for Jacobs Field Services. We affirm with respect to the discrimination claims, but reverse and remand as to the retaliation claim.
I. FACTS AND PROCEDURAL HISTORY
Jacobs Field Services North America (“Jacobs“) performs general construction
For security purposes, the Exxon facility where Hammond worked required employees to use a gate pass assigned to each employee which is scanned to gain entry into the plant. This procedure is a safety measure which ensures that only authorized personnel have access to the facility and also allows Exxon to know how many people are in the facility in the event of an emergency. If an employee‘s badge is not used for an extended period of time, it is deactivated. It is against the rules of both Exxon and Jacobs for an employee to enter the facility on someone else‘s pass. This rule was discussed at a safety meeting which Hammond attended during his employment.
In the year leading up to his termination in March 2008, Hammond had experienced health problems, including carpal tunnel syndrome, neck pain, back pain and weakness in the legs. In February 2008, after an extended sick leave, Hammond attempted to return to work with a limited duty release. Jacobs Superintendent Brent Watts informed Hammond that no limited or light duty work was available at that time and he could not return to work until he obtained a full medical release. On February 29, 2008, Hammond returned and attempted to enter the plant but his deactivated badge would not allow him entry. Rather than use the intercom to communicate with security, Hammond followed another vehicle into the plant. Hammond knew that this practice was against company policy.1
On March 3, 2008, Hammond discussed this incident with Brent Watts and Jacobs employees Wayne Tyson and Darryl Fuentes. During this meeting, Hammond admitted that he entered the plant on someone else‘s badge and acknowledged that he knew this was against both Exxon‘s and Jacobs‘s rules. His only excuse for violating the rules was that he wanted to discuss his returning to work with someone. Based on this security breach, Jacobs Project Manager Wayne Tyson terminated Hammond. This decision was later affirmed by McClelland, who told Tyson that even if Jacobs had not terminated Hammond, Exxon would have refused to allow Hammond entrance to the facility.
At the time of his termination, Jacobs contends that Hammond could not рerform any of his job duties, let alone the essential ones. The record reflects that Hammond has worked for other employers only for a few months since he was terminated.
On May 22, 2008, Hammond filed a charge of discrimination with the EEOC, which issued a Notice of Right-to-Sue in October 2009. In January 2010, Hammond sued Jacobs in the Middle District of Louisiana for discrimination based on his disability and race in violation of the Americans with Disabilities Act (“ADA“) and of Title VII of the Civil Rights Act of 1964 (“Title VII“), respectively, and for retaliation in violation of the ADA.2 Jacobs moved for summary judgmеnt on all of the claims and in response, Hammond filed a motion in opposition. The district court granted Jacobs‘s motion for summary judgment, and dismissed Hammond‘s federal claims with prejudice.3
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same standard as the district court. Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir.2010). Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
III. DISCUSSION
A. Hammond‘s Discrimination Claims
1. ADA
To decide whether summary judgment was appropriate on Hammond‘s ADA discrimination claim, we begin with the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003); E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.2009). Under this framework, the plaintiff must first establish a prima facie case of discrimination. 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff succeeds, then the employer must articulate a legitimate, nondiscriminatory reason for the adverse emplоyment action. Id. If the employer meets its burden, then the burden of production shifts back to the plaintiff to show that the defendant‘s proffered reason was a pretext for unlawful discrimination. Id. at 804, 93 S.Ct. 1817. A prima facie case coupled with a showing that the proffered reason was pretextual will usually be sufficient to survive summary judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (ADEA case); see also E.E.O.C. v. Chevron, 570 F.3d at 615 (citing Reeves for the proposition that McDonnell Douglas applies in ADA discrimination cases).
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees ... and other terms, conditions, and privileges of employment.”
We assume arguendo that Hammond was disabled.6 As discussed below, we think there is a fact question as to whether Jacobs‘s proffered nondiscriminatory reason was legitimate. But we ultimately agree with the district court that summary judgment on Hammond‘s ADA discrimination claim was correct because Hammond was not qualified for his position.
“The term ‘qualified individual with a disability’ means an individual who, with or without reasonablе accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
As the record reflects, a line operator is required to perform moderately heavy manual tasks that Hammond was unable to do at the time of his termination. Some of these duties are not physically intensive (e.g., cutting excess wrapping material off of pallets, and adding glue to the glue pot), and sometimes operators are tasked, along with their other responsibilities, with the duty of training other employees. There
2. Title VII
The district court appears to have applied the McDonnell Douglas framework in ruling on Hammond‘s Title VII racial discrimination claim. However, “we apply the modified McDonnell Douglas framework in racial discrimination cases under Title VII.” Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir.2011) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir.2004)). This modified framework differs from the traditional McDonnell Douglas framework only in the third stage of the analysis, after the plaintiff establishes a prima facie case of discrimination, and the defendant offers a legitimate, nondiscriminatory reason for its adverse employment action. Id. Under the traditional framework, a plaintiff, having the burden of production shifted back to him, must show that the defendant‘s reason was a pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. But under the modified framework, the plaintiff in this situation is required to show eithеr that the defendant‘s reason was pretextual, or that the reason, while true, was only one of the reasons for its adverse action, and that another “motivating factor” for the action was the plaintiff‘s protected characteristic, Vaughn, 665 F.3d at 636 (citing Rachid, 376 F.3d at 312).
We need not venture far into our modified McDonnell Douglas analysis because Hammond cannot establish a prima facie casе of racial discrimination. To establish a prima facie case, Hammond must show that he was qualified for his position. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Rutherford v. Harris Cnty., Tex., 197 F.3d 173, 184 (5th Cir.1999). As discussed above, Hammond was not qualified for his position. Thus, summary judgment for Jacobs was proper on Hammond‘s Title VII claim. See, e.g., Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir.2003) (“Employers may succeed on summary judgment by establishing that the plaintiff is not qualified for the coveted position.“).
B. Hammond‘s Retaliation Claim
We evaluate Hammond‘s ADA retaliation claim under the McDonnell Douglas framework. See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316-17 (5th Cir.2007) (citing Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir.1998)). To establish a prima facie case of unlawful retaliation, Hammond must show that he was engaged in an activity protected by statute, that he was subject to an adverse employment action, and that there was a causal link between the protected act and the adverse action. See id. at 317 n. 3;
Upon his termination, Hammond suffered an adverse employment action. The record evidence indicates that Hammond also has satisfied the first and third requirements for showing a prima facie case of retaliation. Hammond appears to have engaged in protected activity under the ADA when he requеsted accommodation for his disability shortly before he was fired. In addition, Hammond has presented sufficient evidence to establish a causal link between his firing and his requests for accommodation.
Given that Hammond has presented sufficient evidence to establish a prima facie case for retaliation under the ADA, Jacobs is required to articulate a legitimate, nondiscriminatory reason for its decision to terminate Hammond. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Jacobs alleged that it fired Hammond for entering the plant by following another employee‘s vehicle through the security gate. Although it is true that Hammond‘s action violated Jacobs policy, there is evidence in the record indicating that this policy was seldom if ever enforced. Rather, the record shows that entering the plant by following another vehicle through the gate was routine and even encouraged for new employees who have yet to be issued access cards. A reasonable factfinder could conclude that Jacobs‘s articulated reason for the alleged retaliatory termination was pretextual. Because the evidence pertaining to Jacobs‘s security policy creates a genuine issue for trial, summary judgment was inappropriate as to Hammond‘s retaliation claim.
CONCLUSION
For the foregoing reasons, we AFFIRM the grant оf summary judgment with respect to Hammond‘s ADA and Title VII discrimination claims, but REVERSE the grant of summary judgment with respect to Hammond‘s ADA retaliation claim and REMAND for proceedings consistent with this opinion.