ABEL MESA, Plaintiff, v. THE CITY OF SAN ANTONIO, ACTING BY AND THROUGH ITS AGENT, CITY PUBLIC SERVICE BOARD D/B/A CPS ENERGY, Defendant.
Civil Action No. SA-17-CV-654-XR
United States District Court for the Western District of Texas San Antonio Division
On this date, the Court considered Defendant CPS Energy‘s Motion for Summary Judgment (docket no. 41) and the corresponding Response1 (docket no. 43) and Reply. After careful consideration, Defendant‘s motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
The live Complaint is Plaintiff‘s Second Amended Complaint. Docket no. 29. Therein, Plaintiff Abel Mesa sues his former employer, CPS Energy, alleging a number of employment discrimination and retaliation claims. Defendant moves for summary judgment on all claims. As discussed below, Plaintiff concedes several of his claims, but continues to maintain claims for disability discrimination under the “regarded as” prong of the
Mesa was hired by CPS Energy in 1990 and remained employed by CPS Energy until his alleged involuntary retirement in 2016. In February 2013, Mesa‘s wife was diagnosed with pancreatic cancer, and Mesa utilized intermittent leave under the
In 2016, Mesa worked as a control room operator at the Milton B. Lee West power plant, also known as the Leon Creek power plant. A control room operator operates the power plant. Urrutia depo. at 31. Mesa‘s direct supervisor was Vernon King; his Level 2 manager was Kevin Drennan, an operations manager stationed at the Braunig power plant; and his ultimate manager was Rick Urrutia, CPS Energy‘s Interim Senior Director over four power plants, including Leon Creek.
Drennan testified that Mesa talked several times about retiring at the end of 2016, “once he made his years of service.” Drennan depo. at 6. Mesa testified that in 2016 he sought information about his retirement benefits. Mesa depo. at 89. On August 30, 2016, Mesa and his wife visited with CPS Energy‘s Employee Benefits department to obtain an estimate of his potential pension benefits upon retirement. Docket no. 41-2 ¶ 5; Mesa depo. at 97. Mesa filled out a Pension Estimate Request with estimated retirement dates of December 1, 2016, February 1, 2017, and August 1, 2017. Docket no. 41-5. December 1, 2016 was the date on which he would have sufficient years of service to retire with full benefits. Docket no. 41-2 (Zinsmeyer
On September 9, 2016, Plaintiff emailed Drennan of his intent to retire. His email states, “I plan on retiring. Need to talk to my Broker about Best Option for Me. Analyst could not answer all my questions.” Docket no. 41-7. Mesa testified that he sent this email because Drennan “was pushing the issue for me to retire” and “this was my way of kind of like slowing down the process so I wouldn‘t have to – That‘s the way I felt at the time to answer.” Mesa depo. at 101. However, Mesa then stated that Drennan was not pushing, that he only had one conversation with Drennan about whether he was planning to retire, and that he sent this email on his own. Id. at 101-02.2
Mesa‘s Response to the Motion for Summary Judgment states that this email was sent to Drennan “as requested,” but Mesa‘s deposition testimony is clear that no one “requested” that he send this email. Mesa and Drennan agree that they discussed how Mesa could see his retirement numbers, but the specifics of the conversation differ. Mesa testified that Drennan told him to send the intent to retire and told him what to say in order to see his numbers. Mesa depo. at 48. Mesa said that Drennan told him, “Put this the way it is and send it to that Mr. Robinson and he‘ll show you the numbers and he can pull your -- your papers. This don‘t mean that you‘re going to retire. This is just to see your numbers.” Mesa depo. at 48. Mesa testified that Drennan told him he could later tell them, after getting his estimates, that he did not want to retire and that they would “pull his papers,” and that this was a normal procedure. Mesa depo. at 138. Drennan testified that Mesa had said he wanted more information about what his numbers would look like, so he shared with him that he had used the online tool to get calculations, and never
After Mesa emailed Drennan his intent to retire, Drennan responded back thanking him for the notice and asking him to update with the intended retirement date as soon as possible. Docket no. 41-7. Mesa and Drennan had no further conversations about Mesa retiring, and Mesa did not talk to anyone else in management about retiring. Mesa depo. at 103. Mesa testified that he did not ask for any more numbers to be run by the pension department because he “wasn‘t interested in retiring” and the numbers would be good for another year. Id. Mesa testified that he did not meet with his broker. Id. at 104.
On Monday, September 12, 2016, Plaintiff was on a ladder at work and had his left arm raised when he felt extreme pain in his left shoulder. He was afraid to get down and asked a co-worker to call EMS; he was taken to the emergency room by ambulance. Mesa depo. at 104-06. The emergency room physician took x-rays and gave him pain medication, diagnosed him with a shoulder sprain, and released him the same day with instructions to follow up with a private physician in one to two days for “Further diagnostic work-up, Recheck today‘s complaints, Continuance of care.” Mesa depo. at 106-07; docket no. 41-9; docket no. 43-1 at 65 (Ex. 7).
A worker‘s compensation claim was opened with Broadspire, CPS Energy‘s third-party workers’ compensation administrator. Docket no. 43-1 (Ex. 8). The next day, Tuesday September 13, Mesa was evaluated at Texas MedClinic on Bandera Road. This appointment was
Texas MedClinic provided a Texas Workers’ Compensation Work Status Report, which released Mesa to return to work with certain restrictions expected to last through September 16, including: no climbing stairs or ladders, no reaching, no overhead reaching, no lifting or carrying, and automatic transmission driving only. Docket no. 41-10. A follow-up evaluation was scheduled for 10:30 a.m. on Friday, September 16. Id. Castaneda stated that receipt of this information started the ADA process, that the next step was to identify whether the business area could accommodate Mesa based on the restrictions outlined by the treating physician, and that this was handled by human resources. Castaneda depo. at 12.
Lisa Jarzombek in CPS‘s Absence Management Department received the Texas MedClinic evaluation in the afternoon of September 13 and emailed Drennan, Vernon King, and Toni Harris-Rowland in Human Resources stating that Mesa needed light duty accommodation “effective 9/13/16 through 9/16/16” with a follow-up appointment scheduled for September 16. Docket no. 41-11. The email asked “HR/Mgmt” to “please make the necessary accommodations and forward the signed BFOE [bona fide offer letter for a light duty assignment] to the Leave [Department] in box once completed.” Id.
On or about September 14, Mesa was contacted by doctors in Houston who were treating his wife‘s cancer, and they instructed him that his wife needed an infusion in Houston on Friday,
On Thursday, September 15 at 9:44 a.m., Toni Harris-Rowland from HR emailed Lisa Jarzombek in the Leave Department asking for Mesa‘s contact number, which Jarzombek then provided. Docket no. 41-11. At 9:56 a.m., Harris-Rowland emailed Drennan, Jarzombek, and Urrutia stating, “I spoke with Abel [Mesa] he will report to Ron at Braunig [power plant] tomorrow at 6:30 am. I will send a meeting invite with the bona fide offer letter and accommodation checklist for us to review with the employee and obtain signatures.” Id. Harris-Rowland testified that she had the phone conversation with Mesa “[s]ometime prior to sending the e-mail usually right after I speak to the employee.” Docket no. 43-1 at 144. Jarzombek responded at 10:30 a.m. and asked if Mesa had mentioned anything about why he rescheduled
At some time on the 15th, Mesa requested
Mesa testified that at some unspecified time, which he appears to believe was on the 15th, Harris-Rowland called him and made a comment to him that he “moved [his] appointment to go to Houston to have fun.” Mesa depo. at 73.4 Mesa testified that he explained to her that he was going to Houston for his wife‘s appointment. Mesa also testified that Harris-Rowland was upset because she wanted him to go to the Braunig plant on light duty work, and he had “over writ” what she wanted him to do. Id. at 74. He testified that Harris-Rowland told him he was “bona fiding [her] offer,” meaning that he “was not going to take” what she was offering, but that he had not been aware of the offer. Id. at 73-74, 77. Mesa also testified, “And that‘s where I had already had it with
At 7:35 a.m. on Friday the 16th, Harris-Rowland sent an email stating that Mesa did not report to work and did not return calls from his supervisor and asked “what is his status?” Docket no. 43-1 at 92 (Ex. 15). Harris-Rowland sent an email at 8:51 a.m. stating, “Abel called me at 8:20 a.m. to tell me he called his manager this morning and Reed yesterday and his manager this morning [sic] to let them know he would not be reporting to work today. Abel advised me yesterday that he was not going to report because he did not feel well and he was going to the doctor‘s to get a new FFD.”5 Id. At 9:19 a.m., Drennan emailed Harris-Rowland, Jarzombek, Veronica Wycoff, Interim Human Resources Manager, and others to say that he called Mesa that morning because he did not report to Braunig for light duty work as expected and that Mesa told him that he had contacted Reed Group for
At 9:39 a.m., Wycoff responded that “[w]hen employees are reporting absences (since he was expected to return today), the expectation is that they contact their supervisor to report and follow the reporting expectations, per the Attendance Guidelines,” and “[i]f they are requesting FML, their second call would be to Reed Group.” Id. Wycoff asked the leave team to keep her posted if they were aware of an
On September 19, Jarzombek emailed Harris-Rowland, Drennan, and others stating that she just “received a call from the workers’ compensation adjuster on Abel Mesa” and that “he told her he will be reporting to work tomorrow, 9/20/2016” and would be contacting HR or his supervisor about what time to report. Docket no. 41-12; docket no. 43-1 at 89. Drennan asked if Mesa was released for full duty or still needed the light duty accommodation, and Jarzombek responded, “The assumption is for the light duty accommodation. He was told his work status has expired and he will be going to a different clinic that he will be making an appointment with this week.” Id. Drennan responded at 1:30 p.m., “I‘m not sure about the work status expiring, however if he is on light duty he will report to [Braunig], if released for full duty he will report to [Leon Green].” Id. A short while later, Harris-Rowland responded to Jarzombek‘s email (which included Wycoff, the Leave Department, Drennan, Kipling Giles, and Ronaldo Gutierrez) stating, “What is he [sic] time code for today since he refused to report on Friday for the Bona Fide Offer.” Docket no. 43-1 at 89.
Mesa testified that Broadspire, CPS Energy‘s third party worker‘s compensation administrator, set up a follow-up appointment at 8 a.m. on September 20 at Nova Clinic. Mesa depo. at 150. Nova Clinic gave Plaintiff a full duty work release that same day, which noted that it was the last scheduled visit for the problem and that no further medical care was anticipated. Docket no. 41-15. Broadspire‘s documentation dated September 20 states, “there is no medical management exposure as employee was released to full duty and from doctor‘s care on
Mesa returned to work on September 20 and gave his full duty work release form to King. Castaneda testified that he received notice of the release and found it had been approved. Castaneda depo. at 15. In response to an inquiry from Jarzombek, Drennan stated that Mesa “has a full release to give his SS at MBLW [Leon Green] today.” Docket no. 41-16. Jarzombek asked to be a given a copy once it was received, and at 4:39 that afternoon sent an email to Drennan, King, Harris-Rowland, and the Occupational Health and Leave departments, stating it had been received and that “[h]e has a full duty release for 9/20/16 and no further medical is anticipated.” Docket no. 41-16.
Also in the afternoon on September 20, Mesa emailed Drennan (copying Kelly Robinson, a Benefits Analyst in CPS Energy‘s Employee Benefits Department) with the subject “Retirement,” stating, “My Intent to retire is December 1, 2016.” Docket no. 41-8; docket no. 41-2 ¶ 8. Drennan responded, “Message received,” and copied Urrutia as well as Patricia Villa, the interim manager over the Leon Creek and Braunig Power Plants. Mesa testified that he sent this in order to receive all of his benefits information and that Drennan had told him what to say. Mesa depo. at 48. Defendant has submitted evidence that employees are not required to submit an intent to retire to obtain pension estimates. Docket no. 41-2 ¶¶ 4, 7.
In the afternoon on September 21, Drennan forwarded Jarzombek‘s email about the full duty release (and a copy of the release) to Urrutia, stating “This is what we received yesterday.” Docket no. 41-16. At some point, there was a meeting or discussion involving the chief safety and security officer, Fred Bonewell, and “leadership from Power Generation” (Castaneda believed it was Urrutia, and Urrutia recalled a conversation) to discuss concerns “about
Castaneda noted that the Texas MedClinic report stated that Mesa sustained injuries that required restrictions that were very specific, in addition to prescription medications, and then the Nova Clinic report said that he was clear to return to work full duty with no restrictions, and there were concerns about what Mesa‘s abilities were, to make sure he could do the job. Castaneda depo. at 17. Castaneda testified that “there was concern about his well-being, considering he had significant restrictions in the previous appointment, and now he had no restrictions.” Id. at 25. There were discussions about Mesa undergoing an MRI7 and there were discussions about him undergoing additional testing through a human performance evaluation (a fitness for duty exam). Id. at 23-35. Castaneda stated that it was a consensus and it was his recommendation that Mesa have the human performance evaluation. Id. at 17-18.
On the 21st, Mesa worked a partial shift, but was then escorted off the job by King and had his badge taken away. Mesa depo. at 158. Mesa was told “something was wrong with the paperwork” and that he would be on paid administrative leave until he heard from Drennan.
Mesa was then off his regular days the next two days and scheduled to work the 24th through the 27th, but he testified that he did not hear from anyone on those days. Mesa depo. at 160. He called Drennan on September 28, and Drennan said someone would notify him. Id. Urrutia testified that there was such a long gap because they were “trying to understand the status of the employee‘s return to work status” because they did not get follow-up information from the MedClinic follow-up appointment and they were trying to understand why Mesa did not go to the scheduled appointment on the 16th, why he did not go back to the original doctor, the reports were inconsistent, and it “took us time to determine what – what do we need to do to understand the employee‘s fitness for duty to ensure that he‘s safe and nothing happens to him and it took eight days to do that.” Urrutia depo. at 37. Urrutia stated that the concern was not where Mesa was on the 16th, but the inconsistent reports from different evaluators. Urrutia depo. at 42-43.
On September 28, Castaneda called Mesa about scheduling a human performance (fitness for duty) evaluation. Castaneda depo. at 18. Castaneda testified that Mesa informed him that he would be going the next morning. He testified that he did not give Mesa options on when to go, that “[i]t was specific to the next morning,” and that Mesa “said he was going to be available to go.” Id. at 18-19. Castaneda stated that there was no set appointment time and that it was a walk-in appointment, but Mesa “was given specific instructions to go on this specific date because of the authorization to treat.” Castaneda depo. at 21. Castaneda‘s affidavit states that, when he completes an authorization for an employee to attend a fitness for duty exam, the authorization is only for the specific date listed. Docket no. 41-29. Castaneda emailed Harris-Rowland and Urrutia on the morning of the 28th and said, “I was able to get a hold of Mr. Mesa and he will be going tomorrow morning to undergo his fitness for duty physical.” Docket no. 41-19.
However, Mesa testified that Castaneda told him he could go on Thursday the 29th or Friday the 30th, and that he chose to go Friday. Mesa depo. at 166, 171. He did not recall Castaneda saying he would see him at Concentra on the 29th. Id. at 166. On September 29, Castaneda went to Concentra and waited for a couple of hours to see if Castaneda had any questions or concerns, but Castaneda did not appear. Castaneda depo. at 19. Castaneda texted Mesa on his personal cell phone that afternoon to see if he had gone to Concentra, but Mesa testified that he did not see the text until the next day because he “[doesn‘t] ever carry a cell phone.” Mesa depo. at 170.
Castaneda testified, “We did discuss what next steps would be taken as far as getting him to his retirement dates.” Castaneda depo. at 20. He further testified, “At that point, he was on administrative leave. And I think they were trying to get him to the end of the month. Because that‘s the way the retirement process works, you go to the end of the month. And then day one of the following month is the retirement day.” Id. Castaneda said the decision was to have Castaneda remain on leave, but he did not recall who made the decision. Castaneda depo. at 22.
Urrutia testified that the decision was based on “the fact that Mr. Mesa did not show up to his assigned fitness for duty assigned by occupational health, the fact that we‘re concerned about the safety of the employee, you know, he did submit his retirement, intent to retire on the 20th, so instead of corrective action process we decided to put him on unpaid leave and not interrupt his end – employment until his retirement date that he – he requested.” Urrutia depo. at 59. The
Urrutia also testified, “Mesa because he submitted his retirement, circumstances we already discussed about, you know, the inconsistencies [between the two medical releases], we decided that, you know, instead of going through the Corrective Action Policy we – we – we take an unpaid leave approach and let the employee retire without any interruption of his employment. That‘s why we did that.” Docket no. 43-1 at 124-25. Urrutia also stated that the unpaid leave was imposed because Mesa “failed to report as requested by the company to get his fitness for duty.” Urrutia depo. at 60. Urrutia could not recall what Castaneda had told him about why Mesa did not report. Urrutia depo. at 60. The length of the unpaid leave was based on Mesa‘s intent to retire date of December 1, 2016. Docket no. 43-1 at 127 (Urrutia depo.).
Harris-Rowland testified that Mesa was placed on unpaid personal leave (not suspended) because “[t]here was concern about his safety and so he was not returned to his business area,” though she was unable to provide any specifics, and she later testified that she did know of any reason that Mesa was being placed on unpaid leave other than his failure to report for the human performance evaluation. Docket no. 43-1 at 132, 140. She testified that failure to report for the evaluation could be considered a safety issue or a failure to follow instructions. Id. at 140.
Castaneda could not recall who made the decision. Castaneda depo. at 22. Urrutia testified that “power generation (myself), our safety, HR, legal team, and my business unit leader” were involved in the decision to put Mesa on unpaid leave and “this was the decision that was made by that joint team.” Urrutia depo. at 57-58. Harris-Rowland testified that Urrutia was not the sole decisionmaker, but she could not give specifics on who else was involved. Docket
It is undisputed that the Corrective Action Policy was not applied. The Corrective Action Policy states that its process “will be administered when a problem is not serious enough to warrant immediate termination” and includes formal corrective actions of Reminder 1 (for minor violations or deficiencies), Reminder 2 (for serious violations and deficiencies), Reminder 3 (for major violations and deficiencies that constitute some degree of threat to the operation of the organization or to the safety of employees and includes a one-day unpaid suspension), and Final Warning (appropriate for an additional infraction occurring during the active period of a Reminder 3 and includes a three-day unpaid suspension). Docket no. 43-1 (Ex. 31).10
Harris-Rowland prepared a critical issues activity report on September 30, which stated, “Determination to separate employee after he did not report for HPE. A. Mesa sent home on paid
When Plaintiff arrived at Concentra Clinic on Friday September 30 for the human performance evaluation, he was informed that he would not be attended to because he was supposed to be there Thursday. Mesa depo. at 172. Mesa was directed to call Harris-Rowland and given a phone number. Id. at 172-73. Mesa called her immediately and she got “in contact with Rick [Urrutia] and Trish [Villa], and they decided for [Mesa] to meet them on [October 3, 2016.]” Mesa depo. at 173-74. Harris-Rowland also informed Plaintiff that he was supposed to be at Concentra on Thursday, September 29, and Mesa responded that he had been told to go Thursday or Friday and had chosen Friday. Id. at 174-75.
Mesa testified that he told them what they were doing was not right. Mesa depo. at 181. He testified that he also said, “This is all y‘all have to say? . . . None of y‘all is going to say nothing?” and “After being there 26 years, missing – missing birthday parties with my kids, missing Thanksgiving with my kids, Christmases with my kids, this is how y‘all pay me back for coming to work every day? This is – This is how y‘all thank me? That‘s how the – This is it?” Mesa depo. at 181. He did not tell them he did not want to retire. Id. at 191-92. Mesa states that he was not paid and his insurance was dropped during the leave, and that he felt he was fired. Mesa depo. at 190. He also testified that he was forced to retire. Id. at 191. He never tried to get his job back because he felt it would be futile. Mesa never filed a grievance under CPS Energy‘s grievance procedures.
Urrutia testified that Mesa was not separated, but was placed on unpaid leave on October 3 and “employment was completed at his retirement date.” Urrutia depo. at 50. He also stated that Mesa was employed by the company but on unpaid leave, and “this was the decision that was made by [the] joint team.” Urrutia depo. at 58. Harris-Rowland also testified that Mesa was
Mesa applied for unemployment benefits with the Texas Workforce Commission, stating that he had been fired. Notice was mailed to CPS on October 5, 2016. On October 17, Harris-Rowland told the TWC that Mesa was still employed but was placed on unpaid personal leave until November 29, 2016 and that he would be separated on his December 1 retirement date. Docket no. 43-1 at 160. On October 6, in response to an email discussion about coding Mesa‘s time, Harris-Rowland wrote, “This is not a suspension.” Docket no. 43-1 at 190. She also wrote, “Please make sure that A. Mesa is coded Personal Non-paid as of yesterday, Oct. 3, 2016.” Docket no. 43-1 at 191. On October 12, Harris-Rowland sent an email stating, “Abel Mesa was placed on personal unpaid leave on Oct. 3, 2016 through November 29, 2016. It appears the Leave team entered 12 hours of leave for Oct. 10, 2016 because it was a pending FML request for time off (see attached Reed notice). Please make sure that Mr. Mesa does not get paid for any leave for Oct. 10, 2016.” Docket no. 43-1 at 192.12
On November 4, 2016, Mesa and his spouse met with Robinson to review different retirement options and select the options they wanted. Docket no. 41-2 ¶ 8. During this meeting, Mesa never told Robinson that he did not want to retire or that he wanted to rescind his stated intent to retire. Mesa depo. at 195-197. Mesa and his wife signed all documents necessary to finalize his retirement effective December 1, 2016. Docket no. 41-2 ¶ 8. At no time did Mesa inform the Employee Benefits Department that he did not intend to retire when he sent the September 20 email. Docket no. 41-2 ¶ 8. Mesa testified that he did not communicate that he did
In April and May 2017, Plaintiff filed complaints with the Equal Employment Opportunity Commission and the Texas Workforce Commission Civil Rights Division. Plaintiff filed his Complaint with this Court on July 19, 2017, and his Second Amended Complaint on January 9, 2018. Docket no. 1, Docket no. 29. Mesa began working full time for Aldez Containers in October 2017 making $11.50 per hour, when he had been making over $40 per hour at CPS Energy. Mesa depo. at 19.
In his Second Amended Complaint, Plaintiff brings claims for disability discrimination under the
The following claims still remain: (1) disability discrimination in violation of the
I. Summary Judgment Standard
Summary judgment is proper when the evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.”
The Court must draw reasonable inferences and construe evidence in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Although the evidence is viewed in the light most favorable to the nonmoving party, a nonmovant may not rely on “conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence” to create a genuine issue of material fact sufficient to survive summary judgment. Freeman v. Tex. Dep‘t of Criminal Justice, 369 F.3d 853, 860 (5th Cir. 2004). The court “may not make credibility determinations or weigh evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 (2000); Anderson, 477 U.S. at 254-55.
II. Disability Discrimination under the ADA
Plaintiff asserts two claims under the ADA: (1) that he was discriminated against because Defendant regarded him as disabled and (2) he was discriminated against for associating with his
A. Plaintiff‘s “Regarded as” Disabled Claim
In order to make out a prima facie showing under the McDonnell Douglas framework for the claim that he was discriminated against because Defendant regarded him as disabled, Mesa must show that: (1) he was regarded as disabled (as described in
(1) transitory and minor defense
CPS Energy first moves for summary judgment on the basis that Mesa was not regarded as disabled as defined in
However, paragraph (3) further states, “Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.”
Thus, it is clear that, under the “regarded as” prong, a plaintiff is not required to show that he is substantially limited in a major life activity or that the employer perceived him as being substantially limited in a major life activity. Cannon, 813 F.3d at 591-92 (noting that the ADAAA overrules prior authority requiring a plaintiff to show that the employer regarded him or her as being substantially limited in a major life activity);
As this Court has previously noted, whether the plaintiff must prove that the impairment was not transitory and minor, or whether the transitory and minor nature of the impairment is a defense, is not entirely clear from the statutory language. Dube v. Tex. Health & Human Servs, No. SA-11-CV-354-XR, 2011 WL 4017959, at *2 (W.D. Tex. Sept. 8, 2011) (“[T]he ADA is somewhat ambiguous regarding the burden of proof on the issue of whether an impairment is transitory and minor.“). However, the regulations place the burden of proof on the employer and explain its application:
It may be a defense to a charge of discrimination by an individual claiming coverage under the ‘regarded as’ prong of the definition of disability that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) ‘transitory and minor.’ To establish this defense, a covered entity must demonstrate that the impairment is both ‘transitory’ and ‘minor.’ Whether the impairment at issue is or would be ‘transitory and minor’ is to be determined objectively. A covered entity may not defeat ‘regarded as’ coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor. For purposes of this section, ‘transitory’ is defined as lasting or expected to last six months or less.
Based on the regulations, this Court has previously concluded that the employer must prove as a defense that the impairment was transitory and minor. Dube, 2011 WL 4017959, at *2. The Fifth Circuit has cited this Court‘s later opinion in Dube with approval, and has clearly stated that the plaintiff “need only show that her employer perceived her as having an
Citing Willis v. Noble Environmental Power, LLC, 143 F. Supp. 3d 475, 484 (N.D. Tex. 2015), CPS Energy argues that the fact that Mesa testified that he fully recovered from his shoulder injury within eight days, with no limitations in his mind,14 means that the short-term nature of his injury defeats his “regarded as” claim as a matter of law. In Willis, the plaintiff suffered a medical episode of dehydration and possible heat stroke and had difficulty walking, seeing, and communicating. Afterward, his employer discussed the episode and concerns about plaintiff working on wind turbines, which required the plaintiff to climb in excess of 300 feet and work in extreme temperatures in the summer. The district court granted summary judgment on the plaintiff‘s actual disability claim because he failed to show that his impairment substantially limited a major life activity. It also granted summary judgment on his “regarded as” claim on the basis that an objective review of the record revealed that the plaintiff‘s dehydration episode was transitory and minor because the episode lasted only a few hours, and he then received a clean bill of health with no work restrictions.
The “regarded as” prong requires the individual to establish that he “has been subjected to an action prohibited under this chapter because of an actual or perceived” impairment.
This is illustrated in the EEOC‘s interpretive guidance as follows:
[A]n employer that terminated an employee with an objectively “transitory and minor” hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have “regarded” the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not “transitory and minor.”
Thus, even though Mesa had an actual impairment that CPS Energy argues was transitory and minor, the proper standard for his “regarded as” claim in this case is one for a perceived impairment, and the proper inquiry is whether CPS Energy has demonstrated that the perceived impairment (shoulder injury) would be both transitory and minor. Although whether the employer perceived an impairment (and what it was) is necessarily subjective because it looks to the employer‘s perceptions, the regulations state that whether the perceived impairment would be transitory and minor is evaluated objectively. This means that the relevant inquiry is whether the shoulder injury perceived by CPS Energy to exist would be objectively transitory and minor, not by determining whether CPS Energy subjectively perceived or believed that Mesa‘s shoulder
CPS Energy primarily argues that Mesa‘s actual injury was transitory and minor and that Mesa has presented “no evidence from which [to] conclude that anyone associated with CPS Energy regarded Mesa‘s shoulder injury as anything other than transitory and minor” or “made a determination he was or would be impaired longer than six months” Docket no. 44 at 2-3. But, as discussed above, neither is the correct focus. In its Reply, CPS Energy addresses Mesa‘s argument that because decisionmakers viewed him as a potential safety hazard and wanted a fitness-for-duty exam, they regarded him as impaired under the ADA, arguing that its legitimate concerns about Mesa‘s ability to work and its desire to determine whether he had any work restrictions are insufficient to infer that it regarded him as having an impairment for purposes of the “regarded as” prong. Docket no. 44 at 3. Instead, CPS Energy argues, it “had legitimate reasons to verify Mesa‘s ability to work safely and to determine whether he had any work restrictions at all.” Id.
But Mesa does not argue that the fact that CPS Energy wanted him to have a fitness for duty exam alone means that it regarded him as disabled. Mesa points to the fact that decisionmakers wanted him to have an MRI and that they had concerns about his ability to do the job, and to do it safely. The EEOC‘s Interpretive Guidance states: “[A]n employer who terminates an employee with angina from a manufacturing job that requires the employee to work around machinery, believing that the employee will pose a safety risk to himself or others if he were suddenly to lose consciousness, has regarded the individual as disabled.” 29 C.F.R. pt.
The ADA is clear that an individual meets the requirement of being regarded as having an impairment if he establishes that he has been subject to a prohibited action because of a perceived physical impairment, whether or not the impairment limits or is perceived to limit a major life activity.
The regulations reflect this structure. Section 1630.2(l) states that “[e]xcept as provided in § 1630.15(f) [the transitory and minor defense], an individual is ‘regarded as having such an impairment’ if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity” and “[e]xcept as provided in § 1630.15(f), an individual is ‘regarded as having such an impairment’ any time a covered entity takes a
Thus, whether CPS Energy rightly had concerns about Mesa‘s ability to work or whether it rightly required him to get a human performance evaluation are not the proper inquiries for purposes of CPS Energy‘s motion for summary judgment on Mesa‘s prima facie case, which is based solely on the transitory and minor defense. The proper inquiry is whether, at the time of the adverse action, CPS Energy perceived Mesa to have a physical impairment (a shoulder injury) that, viewed objectively, would be transitory and minor.16
As Castaneda testified, “[t]he employee sustained injuries that required restrictions that were very specific, in addition to prescription medications.” Castaneda depo. at 17. To accommodate these restrictions, Harris-Rowland prepared a light duty position offer. Docket no. 41-11. On September 20, Nova Clinic sent a report listing the diagnosis as “Sprain of ligaments of cervical spine” and “Contracture of muscle, LEFT shoulder.” This report had no restrictions and stated it was “the last scheduled visit for this problem” and that “no further medical care is
However, Castaneda testified that, even after they received the second report, there were still concerns about what Mesa‘s abilities were, to make sure he could do the job. Castaneda depo. at 17, 23. There was discussion about whether Mesa should get an MRI and Castaneda testified that they wanted him to get one. CPS Energy decided that he needed a fitness-for-duty examination “to ensure he was able to do the minimum requirements of the job.” Castaneda depo. at 18. Urrutia also testified that they wanted to make sure that Mesa was fit to return to work and did not pose a safety threat. Urrutia depo. at 42. This is some evidence that CPS Energy still viewed Mesa as having a physical impairment after September 20, despite the fact that Mesa was no longer impaired.
In addition, after Mesa did not obtain the fitness for duty evaluation, the conference call participants still “had concerns about his well-being.” Castaneda depo. at 20. Although CPS Energy contends that the sole reason for placing Mesa on unpaid leave was his failure to attend the human performance evaluation, Urrutia stated that the decision to put him on unpaid leave was based in part on “the fact that we‘re concerned about the safety of the employee.” Urrutia depo. at 59. Harris-Rowland testified that the failure to attend the evaluation could be viewed as a disciplinary issue (failure to follow instructions) or as a safety issue. Docket no. 43-1 at 140. This is some evidence that CPS Energy continued to view Mesa as impaired, and that it viewed him as impaired at the time it placed him on unpaid leave on or about September 29 or 30, and that its decision was based at least in part on that perception. Thus, a material issue of fact exists as to whether CPS Energy perceived Mesa as having a physical impairment at the time of the adverse employment action.
Some impairments can be categorized as a whole (i.e., categorically) as objectively transitory and minor or not. For example, bipolar disorder, HIV, and alcoholism are, categorically, objectively not transitory and minor, while cuts and short-term illnesses such as a cold or the flu are, categorically, transitory and minor. See FED. DISCRIM. LAWS, Disability Discrimination in the Workplace, § 4.12; Saley v. Caney Fork, LLC, 886 F. Supp. 2d 837, 851 (M.D. Tenn. 2012); Lewis v. Fl. Default Law Group, No. 8:10-cv-1182-T-27EAJ, 2011 WL 4527465, at *6 (M.D. Fl. Sept. 16, 2011) (citing House Judiciary Committee Report that the transitory and minor exception was to exclude individuals who are regarded as having common ailments like the cold or flu to conclude that the flu is objectively transitory and minor); Valdez v. Minnesota Quarries, Inc., No. 12-CV-0801 (PJS/TNL), 2012 WL 6112846, at *3 (D. Minn. Dec. 10, 2012) (“the legislative history cites seasonal flu as the paradigmatic example of a transitory and minor ailment“).
Impairments such as physical injuries are difficult to classify categorically because the nature of such injuries varies. The regulations indicate that a physical injury such as a back injury may be minor, but certainly not all back injuries (or other physical injuries) are minor such that they may be treated categorically as minor or not. Some shoulder injuries may be not only more than “transitory and minor,” but actually disabling. In Cannon v. Jacobs Field Servs., N.A., Inc., 813 F.3d 586, 590-91 (5th Cir. 2016), the Fifth Circuit held that a plaintiff with rotator cuff injury that prevented him from lifting his right arm above the shoulder qualified as actually disabled because he was substantially limited in the major life activities of lifting and reaching.
There is no Fifth Circuit guidance defining “minor” impairment. Non-minor cannot require substantially limiting a major life activity, because that requirement was eliminated from “regarded as” coverage. Willis states that “[a]n impairment that subsides within a few hours, requires minimal recuperation time and no continuing treatments or restrictions is clearly both transitory and minor.” Willis, 143 F. Supp. 3d at 484. Another court has stated that “broken bones, generally, are characterized as being ‘transitory and minor’ for purposes of ADA disability definitions.” Clark v. Boyd Tunica, Inc., No. 3:14-cv-00204-MPM-JMV, 2016 WL 853529, at *6 (N.D. Miss. Mar. 1, 2016).
Some district courts have treated injuries similar to Mesa‘s (or even more substantial) as transitory and minor. In Quick v. City of Fort Wayne, No. 1:15-CV-056 JD, 2016 WL 5394457 (N.D. Ind. Sept. 27, 2016), the plaintiff suffered a back injury and argued that the City regarded him as disabled when it terminated him. The district court evaluated whether the impairment was transitory and minor, citing cases holding that when the plaintiff suffers an acute injury and then makes a swift and complete recovery, it is a minor injury. Although the plaintiff alleged that the back injury was extremely painful, the Court noted that he recovered within a month and held that no reasonable juror could conclude that his back injury was other than transitory and minor, precluding recovery under the “regarded as” prong.
In Weems v. Dallas Independent School District, 260 F. Supp. 3d 719 (N.D. Tex. 2017), the plaintiff suffered a significant knee injury requiring surgery, the use of a scooter, and eventually the use of a cane. The district court concluded that the plaintiff was not actually
Even assuming that Mesa‘s perceived shoulder injury was transitory, CPS Energy has not conclusively shown that it was minor. It is undisputed that the injury resulted in Mesa being transported to the emergency room by ambulance. As Castaneda himself testified, the injury resulted in specific restrictions (no climbing, no reaching, no lifting) and prescription pain medications. There is some evidence that decisionmakers viewed these restrictions and medication requirements as continuing, since they wanted him to get an MRI, and were concerned about whether he could perform the physical demands of his job and whether he posed a safety risk. Thus, there is some evidence that the impairment CPS Energy perceived had restrictions on climbing, reaching, and lifting. In Cannon, the Fifth Circuit held that an employer‘s belief that an applicant‘s shoulder injury resulted in substantial impairment limiting the ability to lift and reach (which are major life activities) in his right arm (and that was actually disabling), was sufficient for “regarded as” coverage. Cannon, 813 F.3d at 586.
Mesa has provided sufficient evidence to raise a fact issue that CPS Energy continued to view him as having a physical impairment that precluded his ability to climb, reach, and/or lift. If such an impairment is sufficient to qualify one as actually disabled, it logically follows that such an impairment is non-minor. At the very least, Mesa has produced some evidence that a
(2) legitimate non-discriminatory reason and pretext
CPS Energy also moves for summary judgment on the basis that it has provided a legitimate, non-discriminatory reason for its actions – Mesa‘s failure to attend a required fitness for duty exam -- and that Mesa has failed to demonstrate pretext. If the plaintiff successfully establishes a prima facie case, the burden shifts to the employer to produce evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. Cannon, 813 F.3d at 590. If the employer meets this burden, then the burden shifts to the plaintiff to establish that the reason provided by the employer is a pretext for discrimination. Id. In the summary-judgment context, the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext. Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017).17
CPS Energy argues that, even if Mesa raised a fact issue about whether Castaneda told Mesa he could appear for the exam on either Thursday or Friday, Mesa does not dispute that the decisionmakers believed in good faith that Mesa failed to appear for the examination on the
Although Mesa‘s deposition testimony asserts that he felt he was “fired” on October 3, his briefing more accurately reflects that he was subjected to two adverse employment actions – being placed on unpaid leave from October 3 to November 29, 2016, and being terminated (or involuntarily retired). Mesa has presented sufficient evidence to raise a fact issue as to whether he was placed on unpaid leave because he was perceived as impaired. As discussed above, there is some evidence that decisionmakers viewed Mesa‘s shoulder injury and its resulting restrictions as continuing at the time they reached their decision, since they were concerned about whether he could perform the physical demands of his job and whether he posed a safety risk.
There is also some evidence that he was placed on unpaid leave for this very reason. Lewis‘s affidavit states that “he was placed on unpaid leave solely because he failed to attend an examination that was required due to conflicting medical releases received.” Docket no. 41-23. But Castaneda testified that the participants “had concerns about [Mesa‘s] well-being.” Castaneda depo. at 20. Urrutia testified that the decision was based on “the fact that Mr. Mesa did not show up to his assigned fitness for duty assigned by occupational health, the fact that we‘re concerned about the safety of the employee, you know, he did submit his retirement, intent to retire on the 20th, so instead of corrective action process we decided to put him on unpaid leave and not interrupt his end – employment until his retirement date that he – he requested.”
The evidence further demonstrates that the decision of what action to take in regard to those continuing concerns was heavily, if not completely, influenced by Mesa‘s stated intent to retire on December 1. Lewis stated that “[b]ecause this was a unique circumstance, particularly with Mr. Mesa‘s upcoming retirement on December 1, 2016, CPS Energy‘s corrective action policy did not apply.” Urrutia also testified, “Mesa because he submitted his retirement, circumstances we already discussed about, you know, the inconsistencies [between the two medical releases], we decided that, you know, instead of going through the Corrective Action Policy we – we – we take an unpaid leave approach and let the employee retire without any interruption of his employment. That‘s why we did that.” Docket no. 43-1 at 124-25. Castaneda also stated that they were trying to get him to his retirement date. Castaneda depo. at 20. The evidence therefore shows that the decision to not apply the Corrective Action Policy but instead place him on unpaid leave until December 1 was based on the fact that Mesa had stated his intent to retire that date. Thus, although the form of the action taken and its duration was influenced by the fact that Mesa had stated an intent to retire, the evidence raises a fact issue as to whether that
However, Mesa fails to raise a material issue of fact on whether he was “involuntarily retired” by CPS Energy because he was regarded as disabled. The evidence is clear that all of the CPS Energy decisionmakers believed that Mesa intended to and wanted to retire on December 1, 2016. The only person who Mesa contends may have known that he did not intend to retire was Drennan, and Mesa has failed to show that Drennan influenced or was involved in the decision to place him on unpaid leave and retire him.
Mesa contends that his September 9 email stating that he intended to retire but needed to talk to his broker to find the best option supports his claim that he did not intend to retire but did want information about available benefits. But Mesa sent an unequivocal email to his direct supervisor, copying employee benefits, on September 20 stating “My Intent to retire is December 1, 2016.” This is the procedure for initiating the retirement process on the CPS Energy website. Docket no. 41-31. Thus, as far as the decisionmakers were concerned, Mesa intended to and wanted to retire on December 1. Mesa fails to provide any evidence to cast doubt on the fact that decisionmakers retired him because of his stated intent to retire, even if they were mistaken because Mesa subjectively never intended to retire. Mesa also points to the fact that he sought new full-time work as proof that he did not intend to retire, but even if Mesa never wanted to or intended to retire, there is simply no basis for a reasonable jury to conclude that CPS Energy retired him for any reason other than because he had informed them of his intent to retire.
Although Plaintiff attempts to demonstrate pretext by arguing that CPS Energy has been inconsistent in stating why it acted, who made the decision, what Mesa‘s status was while on unpaid leave, and whether he was retired, separated, or terminated, his evidence fails to establish
To demonstrate that Mesa was fired rather than retired, Plaintiff points to Harris-Rowland‘s September 30 Critical Issues Report statement that a decision was made to separate Mesa, but Mesa was separated on December 1 pursuant to his intent to retire. Plaintiff states that “Defendant told the Texas Workforce Commission that Mr. Mesa had been fired.” Docket no. 43 at 19. But the exhibit page he cites is Mesa‘s answers to questions about why he was fired and who told him he was fired, and contains no statements by Harris-Rowland that Mesa was fired. Docket no. 43-1 at 197 (Ex. 34 at bates no. D-597).18 Plaintiff notes another page of that exhibit that contains a statement from Harris-Rowland that states, “ON 100316 WE PUT HIM ON UNPAID LEAVE AND LATER TERMINATED HIM FOR NON COMPLIANCE.” Docket no. 43-1 at 201 (Ex. 34 at bates no. D-601). Plaintiff notes that Harris-Rowland also provided a document to TWC stating that Mesa was “still employed” while on unpaid leave.
However, Defendants consistently asserted that Mesa remained employed while on unpaid leave and that his employment ended upon his selected retirement date. To the extent that one TWC document may contain a statement by Harris-Rowland after the fact that CPS Energy “terminated” Mesa instead of “separated” or “retired” him, any inconsistency in Defendant‘s statements concerning the nature of the separation is simply too slim a reed upon which to resist summary judgment, given the overwhelming evidence that CPS Energy decisionmakers retired Mesa on December 1 consistent with his stated intent to retire, which they had no reason to
Thus, the Court finds that Plaintiff has raised a fact issue as to pretext and may proceed on his claim that he was placed on unpaid leave from October 3 to November 29, 2016 because he was regarded as disabled, but he has failed to show pretext and may not proceed on his claim that he was involuntarily retired or fired. Summary judgment on his “regarded as” disabled claim is granted in part and denied in part.
B. Associational Disability – ADA
The ADA defines the term “discriminate against a qualified individual on the basis of disability” as including “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”
The Court finds that Plaintiff fails to establish that his wife‘s cancer was a determining factor in the decision to place him on unpaid leave and retire him. Mesa‘s wife was diagnosed in 2013, and Mesa testified that he had no complaints about any events before 2016 and that no one ever mentioned or complained of any associated costs. Plaintiff does not show that any person at CPS made any negative comments or expressed any hostility toward Plaintiff‘s wife‘s cancer or his association with his wife. Nor did Defendant deny Plaintiff leave to take care of his wife. Plaintiff relies on Harris-Rowland‘s comments about Plaintiff‘s “refusal” to attend work and going to Houston to “have fun” and argues that this and the suspicion over his missed appointment demonstrates a negative attitude toward his use of time off. But Mesa agreed that Harris-Rowland did not know about his wife‘s condition when she made the comment about going to Houston to “have fun,” and he had experienced no prior alleged negative effects despite his absences to care for his wife over a period of three-and-half years.
III. Retaliation under the Family Medical Leave Act
Mesa brings a claim for retaliation under the FMLA, alleging that CPS Energy retaliated against him for using FMLA benefits to care for his wife. Docket no. 43 at 23-25. The FMLA prohibits retaliation for the exercise of FMLA rights, including exercising the right to reasonable leave for medical reasons. Ray v. United Parcel Serv., 587 F. App‘x 182, 186-87 (5th Cir. 2014). The McDonnell-Douglas burden-shifting framework applies to FMLA retaliation claims when the claim is based on circumstantial evidence.
To establish a prima facie case of retaliation under the FMLA, a plaintiff must show that (1) he engaged in protected activity; (2) the employer took a materially adverse action against him; and (3) a causal link exists between his protected activity and the adverse action. Wheat v. Florida Parish Juvenile Justice Comm‘n, 811 F.3d 702, 705 (5th Cir. 2016); Mauder v. Metro. Transit Auth. of Harris Cty., 446 F.3d 574, 583 (5th Cir. 2006). If the plaintiff satisfies the initial burden, the burden shifts to the defendant to articulate a legitimate nondiscriminatory or nonretaliatory reason for the employment action. If the employer articulates such a reason, then the burden shifts to the plaintiff to prove by a preponderance of the evidence that the employer‘s reason is pretextual.19
Defendant argues that Plaintiff cannot establish a prima facie case of FMLA retaliation because he cannot show that he was treated less favorably than an employee who had not requested leave under the FMLA or that Defendant took the adverse action because he took FMLA leave. Docket no. 41 at 16. Plaintiff has not attempted to show that he was treated less favorably than an employee who did not request leave under the FMLA. Thus, the issue is whether he has established a prima facie case that he was placed on unpaid leave or retired because he took FMLA leave.
“When evaluating whether the adverse employment action was causally related to the FMLA protection, the court shall consider the ‘temporal proximity’ between the FMLA leave and the termination.” Mauder v. Met. Transit Auth. of Harris Cty., Tex., 446 F.3d 547, 551 (5th Cir. 2006). Close proximity in time between FMLA leave and the adverse action may establish a minimal causal connection sufficient to carry Plaintiff‘s burden. Clark v. Southwest Airlines Co., No. 1:16-CV-910-RP, 2017 WL 4853794, *5 (W.D. Tex. Oct. 26 2017); Garcia v. Penske Logistics, LLC, 165 F. Supp. 3d 542, 559 (S.D. Tex. 2014). CPS Energy placed Mesa on unpaid leave shortly after Plaintiff had requested and obtained FMLA leave to care for his wife.
In addition, Mesa argues that Harris-Rowland was hostile to his use of FMLA leave and presents evidence that, despite knowing he took FMLA leave on September 16 to take his wife to the doctor in Houston, she sent an email and wrote that he “refused” to report to work that day to accept the bona fide offer. Harris-Rowland was involved in the meeting that led to the decision to place Mesa on unpaid leave. The evidence is sufficient to show that Mesa‘s use of FMLA leave and the adverse employment action were not completely unrelated. Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 766 (5th Cir. 2016) (citing Mauder v. Metro. Transit Auth. of Harris Cty., 446 F.3d 574, 583 (5th Cir. 2006)).
CPS Energy‘s motion for summary judgment on Plaintiff‘s prima facie case of FMLA retaliation based on Mesa‘s placement on unpaid leave is denied. However, for the same reasons discussed with regard to the ADA claim, summary judgment is granted on Mesa‘s claims related to his alleged involuntary retirement because there is no reasonable basis from which to conclude that Mesa‘s taking FMLA leave played any role in CPS Energy retiring him on December 1, 2016.
CPS Energy further contends that summary judgment is appropriate because it has proffered a legitimate, nondiscriminatory reason for placing Mesa on unpaid leave and Mesa has failed to demonstrate pretext. Defendant‘s asserted reason for placing Mesa on unpaid leave was his failure to attend the human performance evaluation. However, Mesa has produced evidence that he had no prior disciplinary infractions and that, if viewed as a disciplinary violation, lesser sanctions under the Corrective Action Policy, including a short suspension, might have been applicable, but the Corrective Action Policy was not applied. Instead, decisionmakers placed him
The temporal link between Mesa‘s use of leave, Harris-Rowland‘s hostility to his leave and her participation in the decision, and the failure to apply a disciplinary system is sufficient to survive summary judgment on Mesa‘s FMLA retaliation claim related to the unpaid leave. At summary judgment, evidence demonstrating that the employer‘s explanation is false or unworthy of credence, taken together with the plaintiff‘s prima facie case, is likely to support an inference of discrimination even without further evidence of defendant‘s true motive. Goudeau, 793 F.3d at 476; Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016). Summary judgment is granted on the FMLA retaliation claim based on the alleged termination, and denied as to placement on unpaid leave.
IV. Age Discrimination under the ADEA
Under the ADEA, it is unlawful to “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s age.”
All of the objective evidence indicates that CPS Energy decisionmakers believed that Mesa intended to and wanted to retire on December 1, 2016. Mesa admitted that he never told anyone at any time that he did not want to retire or attempt to rescind his intent to retire. It may very well be true that Mesa never intended to retire and felt he had been fired on October 3 and thus felt it was pointless to attempt to argue that he did not want to retire. But that subjective belief is not enough to establish that CPS Energy discriminated against him because of his age when it retired him, as he had informed them he wished to do. There is simply no basis to reasonably conclude that CPS Energy discriminated against him on the basis of age when it retired him on December 1.
Mesa attempts to establish a prima facie case of age discrimination based on his placement on unpaid leave on October 3. Mesa argues that “the adverse actions taken against [him], including not applying the disciplinary policy, were done because he was retirement eligible,” pointing to Urrutia‘s testimony that Mesa‘s retirement status was considered in the decision to place him on unpaid leave, and it was the reason they did not use the normal disciplinary corrective action policy. Plaintiff argues that Defendant discriminated against him because of his age “because age and retirement are inexorably linked.” Docket no. 43 at 22.
However, as CPS Energy notes, Mesa improperly argues that he was discriminated against because he was “retirement eligible.” Although retirement eligibility alone is generally insufficient to prove age discrimination, Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995), age discrimination may occur when pension status serves as a proxy for age, as in the case cited by Mesa, Hilde v. City of Eveleth, 777 F.3d 998, 1006 (8th Cir. 2015). However, the evidence here is that Mesa had expressed his intent to retire, not that he was simply eligible to retire. The fact that he could retire in part due to his age does not mean that CPS Energy‘s decision based on Mesa‘s stated intent to retire was because of his age. The Fifth Circuit has
In addition, the Supreme Court has noted that, “as a matter of pure logic, age and pension status remain ‘analytically distinct’ concepts.” Ky. Retirement Sys. v. E.E.O.C., 554 U.S. 135, 143 (2008). The Court explained that “one can easily conceive of decisions that are actually made ‘because of’ pension status and not age, even where pension status is itself based on age.” Id. When the employer‘s decision is wholly motivated by a factor other than age, age discrimination has not occurred, even if the motivating factor is correlated with age, as pension status typically is. Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). The undisputed evidence shows that Mesa was treated differently because he had stated an intent to retire in the near future, not because he was retirement-eligible or because of his age. Thus, Mesa fails to establish a claim for age discrimination and summary judgment is granted on this claim.
CONCLUSION
For the foregoing reasons, Defendant‘s Motion for Summary Judgment (Docket no. 41) is GRANTED IN PART. Plaintiff‘s claims under the Rehabilitation Act are DISMISSED WITH PREJUDICE. Plaintiff‘s claims under the ADEA are DISMISSED WITH PREJUDICE. Plaintiff‘s claims under the ADA based on his own disability and based on association with his disabled wife are DISMISSED WITH PREJUDICE. Plaintiff‘s FMLA retaliation claim based on use of leave for his own medical condition is DISMISSED WITH PREJUDICE.
The Court DENIES summary judgment as to Plaintiff‘s claim for “regarded as” disability discrimination and FMLA retaliation for use of leave to care for his wife as to the unpaid leave adverse employment action, but GRANTS summary judgment on these claims as to the alleged discharge adverse employment action. Thus, the only remaining claims are Plaintiff‘s ADA
It is so ORDERED.
SIGNED this 16th day of August, 2018.
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
Notes
For its “post-amendment” holdings from other courts, CPS Energy cites to Pena v. City of Flushing, 651 F. App‘x 415 (6th Cir. 2016), but as CPS Energy itself acknowledges, this case holds only that an employer‘s knowledge of an impairment and requiring a fitness-for-duty examination requirement is not a per se “regarded as” violation. The court reasoned that, because the ADA permits employers to request fitness-for-duty examinations as long as they are job-related and consistent with business necessity, requesting such an examination does not impose per se liability when the employee refuses to take the exam, as the employee in Pena did. The Pena court further noted that, by refusing to submit to an exam, the employee is precluded from being able to establish a genuine issue of material fact as to whether the exams were related to his job, or too broad in scope. Id. Here, Mesa argues that he did not refuse to submit to the exam, that he was willing to submit to the exam, that he was told he could take the exam on Friday, and that he showed up for the exam. In addition, as will be discussed, it appears undisputed that CPS Energy did regard Mesa as impaired at least initially, since it prepared a light duty accommodation for him based on the MedClinic restrictions, and the real question is whether CPS continued to view him as having an impairment when it placed him on unpaid leave (and whether that impairment was transitory and minor within the meaning of the ADA). Accordingly, because there is evidence that CPS viewed Mesa as impaired and because it is disputed whether Mesa was insubordinate in failing to appear for the fitness-for-duty exam, Pena is not on point. Similarly, in Johnson v. Univ. Hospitals Physician Services, 617 F. App‘x 487, 491 (6th Cir. 2015), the employee‘s “sole evidence that defendant perceived her as disabled is that it referred her to a fitness-for-duty exam.” In Koszuta v. Office Depot, Inc., No. 16-C-2679, 2018 WL 1769368 (N.D. Ill. Apr. 12, 2018), the employee also refused to undergo a fitness-for-duty exam. This Court further notes that, despite being recently decided, Johnson and Koszuta both mistakenly cite the pre-ADAAA definition of “regarded as.” Thus, these cases do not help CPS Energy.