SHAWN ASHLEY, Plаintiff, vs. CITY OF SAN ANTONIO AND FIRE CHIEF CHARLES N. HOOD, IN HIS OFFICIAL CAPACITY AS FIRE CHIEF SAN ANTONIO FIRE DEPARTMENT, Defendants.
CIVIL NO. SA-17-CV-00076-OLG
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
August 22, 2018
ELIZABETH S. (“BETSY“) CHESTNEY, UNITED STATES MAGISTRATE JUDGE
To the Honorable Chief United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns Defendant the City of San Antonio and Charles Hood‘s Motion for Summary Judgment Pursuant to
All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#7]. The undersigned
In making this recommendation, the undersigned will also GRANT Plaintiff‘s Motion for Leave to File Surreply to Defendant Reply [#63]. Finally, the undersigned will DISMISS AS MOOT Defendants’ Miscellaneous Objections [#62], because the undersigned has not relied on any of the challenged evidence in issuing this report and recommendation.
I. Procedural Background
This is an employment casе brought by Plaintiff Shawn Ashley, proceeding pro se, arising under the Americans with Disabilities Act (“ADA“),
Ashley alleges that he returned to work the following year on March 21, 2013. (Second Am. Compl. [#19] at 4.) Over a year and a half later, in January 2015, Ashley claims that Chief Hall disclosed his medical diagnosis to Assistant Chief Jimenez, Ashley‘s shift commander. (Id. at 5.) According to Ashley, Jimenez thereafter disclosed Ashley‘s medical information to numerous firefighters who attended meetings aimed to address the increase of cancer within the Fire Department in recent years. (Id.) In support of this allegation, Ashley provides the Court with a number of affidavits from other Fire Department employees who state they were present at the meetings and witnessed the disclosure. (Dalley Aff. [#59] at 30; Gomez Aff. [#59] at 35; Newman Aff. [#59] at 38; Mikel Aff. [#59] at 41.) Ashley claims that he developed severe emotional stress—in fact, that he developed Post-Traumatic Stress Disorder (PTSD)—from the
Ashley filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC“) on September 7, 2015, alleging that he was the victim of disability discrimination and retaliation in part due to complaints he made regarding the improper disclosure of his confidential medical information.2 (EEOC Charge [#50-5] at 2.) He filed this lawsuit on February 2, 2017. Defendants now seek summary judgment on Ashley‘s remaining cause of action, arguing that he cannot establish essential elements of his prima facie case for wrongful disclosure of his confidential medical information.
II. Legal Standard
Summary judgment is appropriate under
The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at
“After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted.” Westphal, 230 F.3d at 174. However, if the party moving for summary judgment fails to satisfy its initial burden of demonstrating the absence of a genuine issue of material fact, the motion must be denied, regardless of the non-movant‘s response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). This Court is required to construe pleadings, filings, and briefs of pro se litigants more liberally than documents filed by parties represented by counsel. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
III. Analysis
The Court should deny Defendants’ motion for summary judgment, which concerns Ashley‘s only remаining claim, his claim that Defendants violated Section 102(d) of the ADA by wrongfully disclosing Ashley‘s medical information. The ADA prohibits employers from discriminating against an employee on the basis of disability.
Thus, these provisions give rise to a cause of action for violating Section 102(d) of the ADA when (1) an employer engages in a permissible examination or medical inquiry; (2) the employer obtains confidential medical informаtion from the employee in the course of doing so; (3) the employer discloses that confidential information to others without the employee‘s permission; and (4) the employee suffers a tangible injury as a result of the disclosure. See Franklin v. City of Slidell, 936 F. Supp. 2d 691, 711 (E.D. La. 2013) (listing elements of Section 102(d) claim). “On its face, [Section] 102(d) does not apply to or protect information that is voluntarily disclosed by an employee unless it is eliсited during an authorized employment related medical examination or inquiry.” E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1047 (10th Cir. 2011).
Defendants argue they are entitled to summary judgment on Ashley‘s Section 102(d) claim for two reasons: first, because Ashley cannot establish his medical information was confidential; and second, because Ashley cannot establish that the information was disclosed
A. A fact issue remains as to whether Ashley‘s medical information was confidential.
Although Defendants contend Ashley‘s medical information was not confidential, the evidence in thе record Defendants cite in support of this argument—specifically, Ashley‘s deposition testimony—merely establishes that Ashley or his wife voluntarily disclosed the cancer diagnosis to six members of Ashley‘s family, two of whom happened to work for the San Antonio Fire Department like Ashley. (Ashley Dep. [#50-2] at 27:1–32:9.) This testimony does not establish as a matter of law that Ashley‘s cancer diagnosis was generally known within the Fire Depаrtment or among his supervisors such that the information could not be perceived to be confidential in his workplace.
Nor does Jimenez‘s testimony that he had heard about Ashley‘s cancer diagnosis from other people in Ashley‘s district establish that the information was voluntarily disclosed by Ashley such that it was not protected by Section 102(d). (Jimenez Statement [#50-4] at 2.) Ashley‘s affidavit states that he kept his medical conditiоn confidential and, aside from his family, only disclosed his diagnosis to his supervisor so he could apply for and receive worker‘s compensation benefits. (Ashley Aff. [#59] at 23.) Ashley contends that if Jimenez indeed heard
Finally, the fact that Ashley may have discussed his diagnosis with Chief Hall and his other supervisors for purposes related to his FRI, such as addressing how he could use his leave to attend treatments in a Houston hospital,3 does not alter the undersigned‘s conclusion. The regulations implementing Section 102(d) specifically provide that informing supervisors and managers regarding necessary accommodations does not render medical information non confidential. Sеe
B. Defendants have not established as a matter of law that disclosure in the context of a First Report of Injury falls outside of Section 102(d)‘s protections.
As to the context in which Ashley‘s medical information was disclosed, the record does not establish as a matter of law that Ashley‘s disclosure was not covered by Sеction 102(d), i.e., that it was not made pursuant to an ADA-authorized medical examination or inquiry. Ashley maintains that he first disclosed his cancer diagnosis to Chief Hall during a meeting regarding the completion of his February 28, 2012 FRI. (Second Am. Compl. [#19] at 3.) In his sworn affidavit, Ashley states that during that meeting Chief Hall asked Ashley about his medical condition as necessary information for completing the FRI. (Ashley Aff. [#59] at 15.)
Section 102(d) covers medical examinations and inquiries.
According to the Texas Department of Insurance‘s website, an employer is required to file an FRI on behalf of a requesting employee to initiate a worker‘s compensation claim. See DWC FORM-001, available at http://www.tdi.texas.gov/forms/dwc/dwc001rpt.pdf (last visited
The reasoning underlying the decisions in Doe and Fisher applies with equal force in the context of completing an FRI form. Although the FRI form itself does not expressly require an employer to analyze an employee‘s ability to perform his or her job-related functions, in order to provide the information the form requires, an employer completing the form would be required to inquire about the employee‘s ability to perform his or her job. In other words, like the FMLA certification form in Doe, the FRI form itself is not the covered inquiry; instead, the employer inquiries that would occur in order to complete the FRI form are themselves the covered inquires.
If the Court were to decline Section 102(d)‘s protections in the context of an employee providing information to an employer to enable the employer to complete the paperwork necessary for an employeе to apply for worker‘s compensation benefits, employees would be forced between foregoing their entitlement to such compensation in order to avoid being publicly identified as having a disability. As the Doe court recognized in the context of an employee applying for leave benefits, that would “return[] employees to the very bind Congress sought to avoid by enacting the confidentiality rеquirement.” See Doe, 317 F.3d at 442.
Moreover, the conclusory statements contained in Chief Horan‘s affidavit that an FRI is “not a medical inquiry” are insufficient evidence to entitle Defendants to summary judgment. (Horan Aff. [#50-1] at 2.) See Lechuga v. So. Pac. Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992) (conclusory statements in affidavits are not competent summary judgment evidence). Nor is this Court bound by Horan‘s conclusions of law. See Clark v. Am.‘s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (legal conclusions contained in affidavit are not competent summary judgment evidence).
In summary, Defendants have not established that they are entitled to summary judgment as а matter of law as to Ashley‘s Section 102(d) claim, and the Court should deny their motion.
Having considered Defendants’ motion, the response and replies thereto, as well as the evidentiary record submitted to the Court, the undersigned recommends that Defendant the City of San Antonio and Charles Hood‘s Motion for Summary Judgment Pursuant to
IT IS HEREBY ORDERED that Plaintiff‘s Motion for Leave to File Surreply to Defendant Reply [#63] is GRANTED.
IT IS FURTHER ORDERED that Defendant the City of San Antonio and Charles Hood‘s Objections to Plaintiff‘s Motion for Summary Judgment Response Evidence [#62] are DISMISSED AS MOOT.
V. Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a сopy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court.
SIGNED this 22nd day of August, 2018.
ELIZABETH S. (“BETSY“) CHESTNEY
UNITED STATES MAGISTRATE JUDGE