RUDY D. MUNGIA v. JUDSON I.S.D.
SA-09-CV-395-XR
Unitеd States District Court for the Western District of Texas
April 29, 2010
Case 5:09-cv-00395-XR Document 36 Filed 04/29/10 Page 1 of 17
On this day came on to be considered Plaintiff’s Motion for Partial Summary Judgment (docket no. 25), Defendant’s Motion for Summary Judgment (docket no. 26), Defendant’s Motion to Strike Witness List (docket no. 27), Plaintiff’s Motion to Strike (docket no. 32), and Plaintiff’s Motion for Leave to File Amended Complaint (docket no. 33).
Background
Rudy D. Mungia has worked as a mechanic since 1971. He is certified by the National Institute for Automotive Service Excellence in numerous automotive disciplines. He is an employee of Judson I.S.D (“Judson”). He was hired by Judson in 1990 as a mechanic.1 Plaintiff alleges that when he was hired, the school district was aware that he was legally blind in his right eye. In 1992, he was promoted to the position of Master Mechanic.2 Notwithstanding
Sometime around the year 2000, the school district required some of its Transportation Department employees to obtain a Texas School Bus Driver Certification and occasionally serve as a substitute bus driver transporting students. Plaintiff was not required at that time to obtain a Texas School Bus Driver Certification.
In May 2007, John Livingston was hired as the Judson I.S.D. Transportation Department Coordinator. He then began to supervise Plaintiff. In August 2007, Plaintiff alleges that Livingston had a meeting with Plaintiff and six other Transportation Department employees. Plaintiff alleges that during this meeting, Livingston threatened to fire any employee who filed any type of grievance against him.4
On January 18, 2008, Plaintiff interviewed for a shop foreman position.5 There is no mention in the interview form that he was not qualified for the position.6 He was notified on February 8 that he was not selected.7 On January
On August 6, 2008, Livingston began to investigate Plaintiff for allegedly damaging a bus.11 Livingston allegedly became aware at that time that Plaintiff lacked certain medical records.12
On August 12, 2008, Livingston allegedly13 informed Plaintiff that he was required to take a physical exam14 (including an eye exam) and obtain a Texas School Bus Driver Certification. On August 14, 2008, Plaintiff was given a written memorandum stating that he failed to present himself for a physical examination, and that as a result, he was not allowed to drive any Judson I.S.D. vehicle or report to work until such time as he completed a physical examination.15 Plaintiff alleges that Livingston imposed this requirement in retaliation for the February 2008 grievance Plaintiff filed. Plaintiff argues that his monocular vision renders him ineligible for the School Bus Driver Certification. Alternatively, he asserts that since he is blind on the right side, where children load and unload, he is uncomfortable transporting children.
Effective August 13, 2008, Plaintiff was suspended for four days with pay16 for refusing to take the eye exam. Plaintiff submitted to an examination on August 20, 2008. The medical examiner’s certificate indicates Plaintiff complied with
On September 12, 2008, Plaintiff was given a written counseling form for refusing to drive a bus with students on board.19 Apparently, Livingston was requiring Plaintiff to drive, but offered to provide a “monitor” to assist with “student management.” Plaintiff refused the instruction to drive the bus.
At some point Plaintiff secured an attorney, and Plaintiff alleges that on September 24, 2008, Sharon Furey, Executive Director for Human Resources, verbally agreed that Plaintiff would not be required to obtain a Texas School Bus Driver Certification and that all past adverse employment acts would cease. The next day Plaintiff’s counsel reduced the verbal agreement to writing and provided a space for the Judson I.S.D. Superintendent, Willis Mackey, Ph.D., to sign indicating agreement.20 In the September 25 letter, Plaintiff’s counsel specifically states that Plaintiff suffers from a disability (blind in the right eye), he is unable to drive students and it is unsafe for him to do so, and that the school district has agreed that it will not require him to do so.21
Despite the above verbal agreement, Plaintiff complains that on October 5, 2008, Judson I.S.D. restricted him from operating any Judson I.S.D. vehicle. On October 23, 2008, Plaintiff filed a charge of discrimination (charge no. 451-2008-02088) with the EEOC. In that charge he alleged that he was being discriminated against because of his disability.22
On January 7, 2009, Plaintiff acknowledged receipt of a job description for his position - master mechanic. The requirements for the position included possession of a commercial driver’s license and Texas School Bus Driver Certification.23 It is uncertain whether previous versions of this job description contained such a requirement.
On February 19, 2009, Plaintiff applied for the position of Transportation Department Shop Foreman.24 The shop foreman oversees the maintenance and repair of District vehicles, distributes vehicle parts, maintains an adequate inventory of shop рarts and supplies, and purchases vehicle parts by using competitive bidding processes.25 Plaintiff alleges that on March 6, 2009, he was informed that he was not qualified for the foreman position and would not be interviewed because of his disability. Plaintiff alleges that on previous occasions he has applied for the foreman position, the position in the past did not require a School Bus Driver Certification, and that he was never disqualified for further consideration because of his еye condition.
On March 31, 2009, the September 12, 2008, counseling form administered to the Plaintiff was removed from his personnel file by the Transportation Supervisor, Paul Spencer.26 It is uncertain what prompted this action, but it is consistent with the verbal agreement that Plaintiff would not be required to drive a school bus with students aboard.
On April 1, 2009, Plaintiff amended charge number 451-2008-02088. In this amended charge, he complained of being denied the shop foreman position in February/March 2009. He also alleged that he was being disсriminated against because of his age (56 years old) and that he was being retaliated against.27
On September 22, 2009, Plaintiff was demoted28 to the position of bus monitor.29 Plaintiff alleges that he was retaliated against when he was given this disciplinary counseling and “demoted” to bus monitor for disposing of seatbelts that are routinely removed from new school buses. Plaintiff alleges that it has been the policy of the District since 1999 to remove the seatbelts installed on new buses because students have sometimes used them as weapons.
On November 2, 2009, Plaintiff filed a new chаrge of discrimination (charge no. 451-2010-00169) with the EEOC complaining that in May 2009 he was suspended and later demoted to bus monitor and these acts constituted disability discrimination and retaliation. Age discrimination was not alleged in this charge.30
Plaintiff brings the following causes of action: (1) disability discrimination under the Americans with Disabilities Act (ADA); (2) retaliation under the ADA; and (3) age discrimination under the Age Discrimination in Employment Act (ADEA).
Plaintiff seeks a partial summary judgment arguing that, as a matter of law, Judson I.S.D. failed to provide a reasonable accommodation. Specifically, Plaintiff argues that he applied for the shop foreman position and that Defendant was obligated to accommodate him by not requiring that he possess a School Bus Driver Certification.
Defendant seeks summary judgment on Plaintiff’s age discrimination claim arguing that Plaintiff essentially conceded that claim in his deposition testimony. Defendant also asserts that it had a legitimate, non-discriminatory reason for its actions and that as a mattеr of law Plaintiff’s claims of disability discrimination and retaliation should be dismissed.
Analysis
I. Plaintiff’s motion for leave to file an amended complaint
Plaintiff seeks leave to file an amended complaint. In summary, Plaintiff argues that the EEOC did not issue its notice of right to sue on charge number 451-2010-00169 until March 15, 2010. Accordingly, he argues that he has good cause for the amendment even though the amendment of pleadings deadline has passed. Plaintiff argues that the school district would not be prejudiced by any amendment because the allegations have already been raised in the discovery conducted by both parties. In addition, Plaintiff argues that if an amendment is not allowed at this time, he would be required to file a separate lawsuit against the school district and this would be a waste of resources for all concerned. Plaintiff presents good cause for the amendment of his complaint. The motion to amend is granted.
II. Defendant’s motion to strike portions of Plaintiff’s amended witness list
Defendant complаins that on March 4, 2010, Plaintiff has included a new witness, Margaret Spinks, who is an employee of the Texas Department of Public Safety, License Issuance Bureau. Defendant argues that this individual has been named after the discovery deadline has passed and accordingly this person should be stricken. As explained in part V of this Order, Ms. Spinks wrote a letter on behalf of the Texas Department of Public Safety explaining Plaintiff’s commercial driver’s license status. She is an integral and necessary witness in this case. Defendant’s motion is denied.
III. Plaintiff’s motion to strike Judson’s brief filed on April 9, 2010.
Plaintiff complains that Judson’s brief was filed late, no leave to file late was requested, was two pages in excess of the local rules, and the affidavit of Livingston contained therein raises new arguments. Plaintiff’s motion to strike is denied. See Policies and Procedures of Judge Rodriguez.31
Alternatively, Plaintiff objects to various portions of Livingston’s affidavit wherein he opines what state law requires to maintain a commercial driver’s license. Plaintiff’s objection in this regard is sustained. The Court will not consider any portion of an affidavit or other document wherein legal conclusions are stated or expert testimony is asserted by an unqualified witness.
IV. Defendant’s motion for summary judgment
A. Summary Judgment Standard of Review
The Court reviews a motion for summary judgment in the light most favorable to the non-moving party and avoids credibility determinations and weighing of the evidence. Summary judgment is appropriate when the competent summary judgment evidence demonstrates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. Jackson v. Cal-Western Packaging Corp., --- F.3d ----, 2010 WL 1135735 (5th Cir. 2010).
B. Plaintiff’s Objections to Defendant’s summary judgment evidence
Plaintiff objects on hearsay grounds to various entries where other Judson employees repeat what they heard from Livingston. Plaintiff’s objections are overruled inasmuch as they are excepted from hearsay as personnel records relied upon by the employer in making its personnel decisions. Plaintiff also objects to various portions of records wherein various Judson employees opine what state law requires to maintain a commercial driver’s license. Plaintiff’s objection in this regard is sustained. The Court will not consider any portion of an affidavit or other document wherein legal conclusions are stated or expert testimony is asserted by an unqualified witness.
C. ADEA Claim
Plaintiff does not respond to Defendant’s argument that Plaintiff has abandoned his age discrimination claim. Plaintiff essentially testified in his deposition that he has no facts to support such a claim.32 Defendant’s motion for summary judgment is granted on this claim. See Warren v. City of Tupelo Mississippi, 332 Fed. Appx. 176 (5th Cir. 2009) (Plaintiff did not meet his ultimate burden that the city intentionally discriminated against him.).
D. ADA Claim33
The term “disability” under the ADA means: “(A) a physical impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”
The ADA prohibits an employer from discriminating “against a qualified individual with a disability because of the disability of such individual in regard to ... the hiring ... or discharge of employees.”
Defendant argues that Plaintiff was not a qualified individual for either the Master Mechanic position or the Shop Foreman position because he did not possess a Texas School Bus Driver Certification. The school district also appears to argue that Plaintiff was not a “qualified individual” for either the Master Mechanic position or the Shop Foreman position because he did not possess a Commercial Driver’s License (CDL). Defendant insists that in order to have a valid CDL, a driver must submit to annual physical examinations and Plaintiff had not been doing so. Defendant further argues that Plaintiff was required to secure a vision waiver/exemption, and that he has failed to produce such a document and that failure makes him an unqualified individual.
Plaintiff responds that he holds a valid CDL and that pursuant to
E. Retaliation Claim
Defendant argues that Plaintiff cannot establish a retaliation claim for any acts taken prior to August 13, 2008, the date Plaintiff was suspended for refusing to take the eye exam. Defendant argues that to establish a retaliation claim under the ADA, a plaintiff must show (1) that he engaged in an activity protected by the ADA, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. St. John v. Sirius Solutions, LLLP, 299 Fed. Appx. 308 (5th Cir. 2008). The Court agrees that prior to August 13, 2008, Plaintiff did not engage in any ADA protected activity. Defendant’s motion for summary judgment is granted on this issue.
Defendant, however, also appears to seek summary judgment for any retaliatory acts that may have occurred after August 13, 2008. Defendant claims that no adverse employment actions occurred. However, on March 6, 2009, he was denied a рromotion to the shop foreman position. In addition, on September 22, 2009, Plaintiff was demoted to the position of bus monitor. The denial of the shop foreman position is an adverse employment action. The demotion/reassignment to bus monitor may also constitute an adverse employment action. Defendant’s motion for summary judgment is denied on this issue.
V. Plaintiff’s motion for partial summary judgment
Plaintiff argues that despite his disability, since 1990 he has been working as a mechanic at Judson. He further argues that from 1990 through most of 2008, Judson reasonably accommodated his disability by not requiring him to drive a bus with students on board. Plaintiff argues that Judson’s claim that driving a school bus with students aboard is an essential function of the Master Mechanic and Shop Foreman position is belied by the fact that, for many years, Plaintiff has not been required to do that function. Further, Plaintiff argues that there are other Judson Transportation Department employees who also do not possess a Texas School Bus Driver Certification and do not perform this functiоn. He also points out that when he applied for the Shop Foreman position in January 2008, he was not disqualified from the application process because he lacked a School Bus Driver Certification.
Plaintiff contends that as a matter of law, Judson failed to engage in the required interactive process when he applied for the Shop Foreman position in February 2009, wrongfully concluded that Plaintiff did not meet all the job requirements, and failed to reasonably aсcommodate his disability by waiving the School Bus Driver Certification requirement.
EEOC regulations promulgated to implement the ADA define “reasonable accommodation” as “modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.”
Defendant attempts to argue that Plaintiff has never requested a reasonable accommodation. Defendant characterizes Plaintiff’s counsel’s letter of September 25, 2008 as a “demand lеtter.” The Court rejects this construction by the Defendant. After receiving this letter, Judson was obligated by law to engage in an “interactive process.” That has been defined by the Fifth Circuit and other courts as “a meaningful dialogue with the employee to find the best means of accommodating that disability.” Id. at 621. When an employer does not engage in a good faith interactive process, that employer violates the ADA. Id.
A fact issue, nevertheless exists as to whether or not Judson failed to engage in a good faith interactive process. Although Plaintiff disagrees with Judson’s interpretations of the federal and state laws governing the driving of a commercial vehicle intrastate given Plaintiff’s disability, Judson was under the impression that in order for Plaintiff to be able to drive a bus, even without carrying students, Plaintiff was required to maintain a vision waiver.
On January 15, 2010, however, Plaintiff received a letter from the Texas Department of Public Safety which states: “A driver who operates a motor vehicle in intrastаte commerce only, and does not transport property requiring a hazardous material placard, and was regularly employed operating a commercial motor vehicle in Texas prior to August 28, 1989, is not required to meet the federal physical and vision standards. Therefore, you are not required to maintain a vision waiver while driving a commercial motor vehicle intrastate. However, you are still required to maintain an annual medical certification, which requirеs a vision examination performed by an ophthalmologist.”35
To confuse matters further, it appears that Judson is now willing to dispense with the requirement that Plaintiff secure a Texas School Bus Driver Certification. This concession was first made on January 22, 2009.36 However, Judson did inform the Plaintiff that he “must comply with the requirement to obtain the vision waiver/exemption in order to perform his duties and to obtain a valid bus driver’s license.”37 These concessions were made prior to Plaintiff receiving the DPS letter dаted January 15, 2010.38 It is uncertain when Plaintiff provided the District a copy of this DPS letter. Plaintiff’s counsel summarily states that a copy was given to the school district, but does not provide any competent summary judgment evidence as to when a copy was given.
Conclusion
Plaintiff’s motion for Partial Summary Judgment (docket no. 25) is denied.
Defendant’s motion for summary judgment (docket no. 26) is granted in part and denied in part. Plaintiff’s ADEA claim is dismissed. In addition, Plaintiff cannot establish a retaliation claim for any acts taken prior to August 13, 2008. Otherwise, Defendant’s motion is denied.
Defendant‘s motion to strike witness list (docket no. 27) is denied.
Plaintiff’s motion to strike (docket no. 32) is denied. However, Plaintiff’s objections to certain portions of Livingston’s affidavit are sustained.
Plaintiff’s motion for leave to file amended complaint (docket no. 33) is granted.
It is further ordered that a status conference will bе held in this case on May 13, 2010. Among the issues to be discussed is whether any of the parties require a trial continuance or further discovery, and whether this case should be submitted to non-binding mediation.
SIGNED this 29th day of April, 2010.
_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE