Collier v. Bernhard M C C Mechanical L L C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

EDWARD COLLIER CASE NO. 2:19-CV-00848

VERSUS JUDGE TERRY A. DOUGHTY

BERNHARD MCC LLC MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the Court is Defendant, Bernhard MCC LLC’s (“BMCC”), Motion for Summary

Judgment. Rec. Doc. 24. This Motion is opposed by Plaintiff, Edward Collier. Rec. Doc. 35.

For the following reasons, the Motion for Summary Judgment is GRANTED.

I. Factual and Procedural Background

This lawsuit stems from alleged discrimination, harassment, and retaliation against Mr.

Collier by his former employer BMCC based on Mr. Collier’s disability. When hired, it is

undisputed that Mr. Collier suffered from several mental health conditions, including ADHD,

bipolar disorder, narcolepsy, and schizoaffective disorder. Rec. Doc. 35-22, p. 10. Mr. Collier

applied to work for BMCC in October of 2017 after hearing about the job through his brother.

Id., p. 5. BMCC argues that they were never informed of these conditions. Rec. Doc. 24-8,

¶¶28-33. Mr. Collier, however, claims that he informed the company in both conversations with

several different individuals and in his initial hiring paperwork which he maintains must have

been altered by BMCC sometime after he had been hired. Rec. Doc. 35-22, p. 11-14.

During his time with BMCC, Mr. Collier had several absences from work due to various

medical conditions. Id., p. 18-19. BMCC claims that there was a company policy requiring a

doctor’s note for any work absences to be excused. Rec. Doc. 24-8, ¶51. While Mr. Collier does

not dispute that such a policy existed in theory, he does claim that the policy was never enforced

except against himself. Rec. Doc. 35-22, p. 18-20. After several absences in November of 2017,

Mr. Collier was confronted by his supervisor, Brian Anderson, who asked for a doctor’s note

which led to a heated conversation following which Mr. Collier left work to get the doctor’s

note. Rec. Doc. 24-2, p. 165-66. On December 5, 2017, Mr. Collier returned to work with a

doctor’s note, at which time Mr. Anderson and another supervisor, Larry Jones, asked Mr.

Collier to sign a write-up reprimanding him for leaving work without notifying his supervisor.

Id., p. 179-80; Rec. Doc. 35-2, p. 59-67. Mr. Collier refused to sign the write-up in this case and

instead left the premises after which his employment was terminated by BMCC. Notably, in

these exchanges there are disputed facts as to who caused any escalation, with Mr. Collier

primarily blaming Mr. Anderson and BMCC claiming that it was primarily Mr. Collier who was

hostile.

Two additional sets of facts are also critical to this matter. First, Collier alleges in the

time that Mr. Collier worked with Mr. Anderson, Mr. Anderson allegedly harassed Mr. Collier

several times. Rec. Doc. 24-8, ¶¶66-71. While BMCC does not dispute the actual underlying

events, there is no evidence to prove Mr. Anderson’s behavior was tied to Mr. Collier’s

disability. Secondly, it is undisputed that Mr. Collier’s health insurance was not going to

activate until after a 90-day probationary period, although Mr. Collier maintains that he should

have been automatically eligible. Rec. Doc. 35-22, p. 8-10.

After being terminated, Mr. Collier brought this suit against BMCC alleging unlawful

discrimination in violation of the Americans with Disabilities Act (ADA) for the temporary

delay in his health insurance coverage, the write-up, and his termination. Rec. Doc. 1. His suit

also includes claims for harassment creating a hostile work environment based on Mr.

Anderson’s behavior towards Mr. Collier as well as for retaliation, arguing that he was punished

for reporting Mr. Anderson’s unlawful harassment. Id. Finally, there was also an unpaid wage

claim alleging that Mr. Collier was not paid for the hours he worked on December 5, 2017. Id.

After discovery, BMCC filed the Motion for Summary Judgment seeking a complete dismissal

of the case. Rec. Doc. 24.

II. Law and Analysis

a. Standard of Review

Summary judgment is appropriate if one party can show “that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A genuine dispute exists where the evidence on record “is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986). “Only disputes over facts that might affect the outcome of the suit under the governing

law” are considered material. Id.

The party seeking summary judgment bears the burden of proving that there are no

genuine issues of material fact to be resolved at trial. Bustos v. Martini Club Inc., 599 F.3d 458,

468. If the moving party meets this initial threshold, then “the burden shifts to the nonmoving

party to produce evidence that a genuine issue of material fact exists for trial.” Id. Notably, the

non-moving party must show “significant probative” evidence of this genuine issue to survive

summary judgment. Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994) (citing In re

Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982)). .

During this analysis, courts must “view the facts in the light most favorable to…the

nonmoving party. City and Cty. of San Francisco v. Sheehan, 575 U.S. 600, 603 (2015).

Further, courts “may not make credibility determinations or weigh the evidence” and “must

resolve all ambiguities and draw all permissible inferences in favor of the non-moving party.”

Total E&P USA Inc. v. Kerr-McGee Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013)

(citations omitted). Summary judgment remains appropriate, however, if the non-moving party

presents only “colorable” evidence which is “not significantly probative.” Cutting Underwater

Tech. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson,

477 U.S. at 428).

b. ADA Disability Discrimination Claim

The Americans with Disability Act (ADA) bars any discrimination “against a qualified

individual on the basis of disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. §12112(a). A plaintiff can establish their

claim either with direct evidence, or under the McDonnell burden-shifting analysis. Caldwell v.

KHOU-TV, 850 F.3d 237, 241 (5th Cir. 2017). Under the McDonnell analysis, the plaintiff must

show that “(1) he has a disability, or was regarded as disabled; (2) he was qualified for the job;

and (3) he was subject to an adverse employment decision on account of his disability.” Id.

(citation omitted). Alternatively, a plaintiff can establish their prima facie case regarding a

work-rule violation by showing that they “either…did not violate the rule” or that if the rule was

violated, non-disabled “employees who engaged in similar acts were not published similarly.”

Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980) (citation omitted). If the

plaintiff can establish their prima facie case, then “a presumption of discrimination arises, and

the employer must ‘articulate a legitimate non-discriminatory reason for the adverse employment

action.’” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016) (quoting

EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009)). If the defendant can

then show a legitimate reason for the employment action, the burden shifts back to the plaintiff

to provide evidence that this reason is pretextual. Caldwell, 850 F.3d at 242.

In the present case, the parties do not dispute that Mr. Collier has a disability or that he

was qualified for the job. Rather, the only element in dispute is whether the alleged actions were

adverse employment actions taken against Mr. Collier because of his disability. Mr. Collier

claims that there are three adverse actions that BMCC took against him: 1) the 90-day delay in

implementing Mr. Collier’s health insurance, 2) the write-up for leaving the job without

permission, and 3) Mr. Collier’s alleged termination. The Court will review each in turn.

Before doing so, however, the Court first notes that there is a disputed issue of fact as to

whether BMCC had been notified of Mr. Collier’s mental health conditions. On one hand,

BMCC officials repeatedly deny that they were ever told of Mr. Collier’s condition. See Rec.

Doc. 24-3, p. 48-49; Rec. Doc. 42-4, p. 39; Rec. Doc. 24-6, p. 48-49. On the other hand, Mr.

Collier alleges that he informed multiple people and that he wrote this information on the

application, but that his application papers were subsequently altered by BMCC. Rec. Doc. 24-

2, p. 55-92, 120-124. Resolution of this dispute would require credibility determinations, which

the Court cannot do in the summary judgment stage. However, while knowledge is crucial to

proving unlawful discrimination, the plaintiff must still prove some nexus between the adverse

employment action and the disability. E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 700 (5th Cir.

2014). Thus, while it is disputed as to whether BMCC knew of Mr. Collier’s disability, this

disputed fact regarding knowledge, absent some further factual basis creating a nexus, will not

by itself create causation as to his prima facie case of discrimination. The Court will now review

the discrimination claims regarding the three alleged adverse employment actions.

i. Health Insurance

In this claim, Mr. Collier alleges that BMCC denied him health care coverage for the first

90 days of his employment because of his disability. The factual record does show that BMCC

could have chosen to provide benefits sooner. See Rec. Doc. 24-2, Ex. 8, p. D00264-D00265

(“Benefits subject to change at the discretion of Bernhard MCC”). Further, there is a factual

dispute as to whether Mr. Collier was told that his health insurance may start at the time he was

hired. Id., p. 116-118.

Despite these factual disputes regarding the timing of Mr. Collier’s health insurance, the

Court has found no factual evidence, nor has plaintiff asserted any evidence, that creates a nexus

between BMCC’s implementation of the 90-day policy regarding health insurance and Mr.

Collier’s mental health conditions. This is true even operating under the inference that BMCC

knew of Mr. Collier’s mental health conditions. BMCC was going to provide health insurance

coverage after 90 days and there is simply no evidence, direct or circumstantial, that this

temporary probationary period was some form of discrimination stemming from Mr. Collier’s

disability. Because the Court finds that the third element regarding causation cannot be

established as to the 90-day probationary delay of health insurance cannot be established, no

discussion of whether a temporary delay in health insurance would be considered an adverse

action is required. Consequently, any discrimination claims relating to the health insurance

probation period are DISMISSED.

ii. Write Up

As to Mr. Collier’s claim regarding the write up, the Court finds that Mr. Collier has

failed to state a prima facie case of discrimination as he cannot establish that it was an adverse

employment action. A written reprimand which has “no practical effect on…job duties, pay or

benefits” is not an adverse employment action. Baig v. McDonald, 749 F.App’x 238, 241 (5th

Cir. 2018). In his opposition to summary judgment, Mr. Collier argues that there was a three-day

unpaid suspension included with the write-up but has not provided any competent summary

judgment evidence to support that contention.1 Notably, Mr. Collier did not mention a

suspension in his deposition testimony regarding the write up, nor did any of the BMCC

employees indicate any such suspension. Thus, the record essentially shows that BMCC was

giving Mr. Collier a reprimand without further consequences. As such, the Court finds that the

write up would not constitute an adverse employment action and any discrimination claims

relating to the write-up are DISMISSED.

iii. Termination

At the outset of the discussion regarding Mr. Collier’s claim that he was terminated

because of his disability, the Court finds that there is a genuine issue of material fact as to

whether Mr. Collier was terminated or resigned. See Rec. Docs. 35-7, 35-8 (showing Mr. Collier

terminated for leaving without informing supervisor). Because a factual dispute on this issue

exists, the Court will not analyze at this stage whether this event was a termination, constructive

discharge, or resignation. Further, because a factual dispute exists as to both whether BMCC had

knowledge of Mr. Collier’s condition and as to whether Mr. Collier was terminated, the Court

finds here that it is a close call as to whether Mr. Collier has established his prima facie case of

discrimination at the summary judgment stage. As such, the Court will move to the next stage of

the McDonnell analysis regarding the employer’s reasons for termination and whether there is

evidence that such is pretext.

1 The Court notes that the only evidence provided for this is the affidavit of Mr. Granger (Rec. Doc. 35-17, ¶21).

However, the information contained therein would be inadmissible hearsay from Mr. Collier. For a further analysis

of this, see the Court’s Memorandum Ruling on Defendant’s Motion to Strike.

In response to this claim, BMCC has provided a legitimate explanation for Mr. Collier’s

firing, namely his noncompliance with company policies regarding excused absences and for

essentially walking out of the job on December 5, 2017. Rec. Docs. 35-7, 35-8; Rec. Doc. 24-3,

p. 40-41; Rec. Doc. 24-6, p. 39-43. Because BMCC has demonstrated a legitimate reason for

terminating Mr. Collier, to survive summary judgment Mr. Collier must “produce substantial

evidence of pretext.” Auguster v. Vermilion Parish School Bd., 249 F.3d 400, 403 (5th Cir.

2001). Discrimination must not be the sole reason for the adverse action, but must, at minimum

“play a role in the employer’s decision making process and have a determinative influence on the

outcome.” Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (quoting Soledad v. United

States Dept. of Treasury, 304 F.3d 500, 503-04 (5th Cir. 2002)).

Here the Court finds that Mr. Collier has failed to produce substantial evidence that

BMCC’s decision was even partially based on discrimination given BMCC’s legitimate reason

for termination. To rebut the nondiscriminatory reason the plaintiff must “establish pretext either

through evidence of disparate treatment or by showing that the employer’s proffered explanation

is false or ‘unworthy of credence.’” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)

(quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)).

Regarding his termination, Mr. Collier has not established that he was treated differently

than any other employee. To show disparate treatment, the plaintiff must show that the

employees to which they compare themselves are “similarly situated” which requires a showing

of similar job duties or responsibilities, the same supervisors, and “essentially comparable

violation histories.” Lee v. Kansas City Southern Railway Co., 574 F.3d 523, 259-60 (5th Cir.

2009). The closest that Mr. Collier has come to establishing disparate treatment is to vaguely

show that the policy on excused absences and doctor’s notes was unevenly enforced. Rec. Doc.

35-2, p. 46. Mr. Collier, however, has only pointed to general references of other employees

who were not required to bring in notes without demonstrating whether other employees were

similarly situated. Rather, the record seems to demonstrate a lack of comparable violation

histories, as it appears that the attendance issues with other employees were resolved after

speaking with Mr. Anderson spoke or being issued a write up. Rec. Doc. 35-2, p. 32-34. Mr.

Collier has not established a factual basis that other employees were similarly situated regarding

termination, i.e., that any other employee was not terminated despite similar issues with BMCC’s

attendance policy. As such, he cannot establish pretext via evidence of disparate treatment.

The Court also finds that Mr. Collier has failed to establish pretext through substantial

evidence that BMCC’s stated reasons are false. There was clearly some confusion regarding the

details of Mr. Collier’s termination, as it appears that Mr. Lanney Jones may not have been

aware that Mr. Collier worked on December 5, 2017, the day he was terminated. See Rec. Doc.

35-4, p. 40-44 (showing Lanney Jones thought Mr. Collier had been absent from work for

several days before being terminated). Despite this confusion, however, there is still no evidence

that Mr. Collier’s termination was related to his disability. He admitted he was never treated as

though he were disabled by anyone at work. Rec. Doc. 24-2, p. 209. He was also considered

eligible for rehire and was contacted by BMCC to work for them again after his initial

termination. Id., p. 211. Ultimately, the Court finds that while there is a dispute as to whether

BMCC knew of Mr. Collier’s disability, which arguably provides enough circumstantial

evidence to create a prima facie case, Mr. Collier has not provided any additional evidence that

creates a causal nexus between Mr. Collier’s termination and his disability. Given that BMCC

has provided a legitimate reason for terminating Mr. Collier, and given the lack of evidence tying

Mr. Collier’s termination to his disability, the Court finds that the plaintiff has not met his shifted

burden of showing that BMCC’s decision was even partially caused by his disability. Thus, all

discrimination claims relating to Mr. Collier’s termination are DISMISSED.

c. “Regarded As” Disability Discrimination Claim

As to any “regarded as” disability claims, the Court finds that these should be dismissed.

BMCC does not dispute that Mr. Collier suffered from a disability at the time that he was

employed with them. Rather, BMCC disputes that they had any knowledge of that disability.

Further, the evidence illustrates that Mr. Collier was never treated as disabled. Rec. Doc. 24-2,

p. 209. Additionally, Mr. Collier stated that BMCC offered to rehire him. Id., p. 211. Because

there is no factual basis that would allow a reasonable jury to find that BMCC regarded Mr.

Collier as disabled absent actual knowledge of his disability, any “Regarded As” disability

claims are hereby DISMISSED.

d. Hostile Work Environment Claim

The Court finds that Mr. Collier’s hostile work environment claim fails because Mr.

Collier has not established any factual basis for the Court to determine that the alleged

harassment was based on his disability. To prove a disability-based harassment claim, the

plaintiff must prove the following:

(1) that [he] belongs to a protected group; (2) that [he] was subjected to unwelcome

harassment; (3) that the harassment complained of was based on her disability or

disabilities; (4) that the harassment complained of affected a term, condition, or

privilege of employment; and (5) that the employer knew or should have known of

the harassment and failed to take prompt, remedial action.

Soledad v. U.S. Dep’t. of Treasury, 304 F.3d 500, 506 (5th Cir. 2002) (quoting Flowers v.

Southern Regional Physician Services, Inc., 247 F.3d 229, 235-236 (5th Cir. 2001)). To survive

summary judgment, the plaintiff must show some evidence that the alleged harassment was

connected to their disability. See Byrnes v. City of Hattiesburg, 662 F.App’x 288, 290-91 (5th

Cir. 2016) (holding that the plaintiff “must come forward with more than speculation of unlawful

harassment to survive summary judgment”). In Byrnes, a man who was both a racial minority in

his workplace and had a disability was repeatedly threatened and harassed by a coworker. Id. at

290. The 5th Circuit held that summary judgment was still appropriate as the plaintiff had not

tied the harassment to his race or disability beyond the mere facts that he was a racial minority

within his workplace with a visible disability. Id. at 290-91. In essence, there must be some

evidence that the harassment was tied to the plaintiff’s disability.

Here, the record does not show any such connection. Essentially, Mr. Collier argues that

Mr. Anderson knew of his condition, along with his symptoms and sensitivities, and the resulting

harassment must be tied to that condition. However, there is simply no factual basis supporting

this assertion. First, Mr. Collier admits that at best he told Mr. Anderson the name of his

condition and his medications, not his symptoms. Rec. Doc. 24-2, p. 130-131. This undermines

Mr. Collier’s assertions that Mr. Anderson would have known what would set Mr. Collier off

given his disabilities as Mr. Anderson at best knew only the name of the condition and the

medications Mr. Collier was on. Further, Mr. Collier admitted that Mr. Anderson never

mentioned his disability and that Mr. Anderson “was on a power trip.” Id., p. 198. Thus, while

it is true that Mr. Collier believes that Mr. Anderson’s actions were tied to his disability, beyond

Mr. Anderson’s potential superficial knowledge of Mr. Collier’s condition, there is no evidence

tying the alleged harassment to Mr. Collier’s disability. Consequently, Mr. Collier’s harassment

claims fail and are hereby DISMISSED.

e. Retaliation Claim

The ADA prohibits any discrimination “against any individual because such individual

has opposed any act or practice made unlawful by this chapter or because such individual made a

charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing under this chapter.” 42 U.S.C. §12203(a). To establish a prima facie case of retaliation,

a plaintiff must show: “(1) [they] engaged in an activity protected by the ADA, (2) [they]

suffered an adverse employment action, and (3) there is a causal connection between the

protected activity and the adverse action.” Lyons v. Katy Ind. School District, 964 F.3d 298, 304

(5th Cir. 2020).

A complaint to an employer about harassment which is unconnected to the plaintiff’s

disability is not a protected activity. Gordon v. Acosta Sales and Marketing, Inc., 622 F.App’x

426, 431 (5th Cir. 2015); see also Davis v. Dallas Ind. School Dist., 448 F.App’x 485, 493 (5th

Cir. 2011) (“We have consistently held that a vague complaint, without any reference to an

unlawful employment practice under Title VII, does not constitute protected activity”). While

“[m]agic words are not required,” the activity “must at least alert an employer to the employee’s

reasonable belief that unlawful discrimination is at issue.” Brown v. United Parcel Service, Inc.,

406 F.App’x 837, 840 (5th Cir. 2010).

In the present matter, as with the other claims, there is simply no factual evidence tying

Mr. Collier’s complaints to various HR directors to his disability. For example, Mr. Collier

discusses calling Ms. Kendra Brown regarding Mr. Anderson’s behavior including asking Mr.

Collier, and only Mr. Collier, for doctor’s notes and yelling at Mr. Collier. Rec. Doc. 24-2, p.

140-143. However, at no point does he indicate that he alerted BMCC regarding any form of

unlawful discrimination. From the Court’s perspective, Mr. Collier essentially argues that

because BMCC allegedly knew of his disability, any complaint against Mr. Anderson should

have put the company on alert. However, with no factual basis connecting these, the Court finds

that his complaints to HR are not protected activities.

The Court further finds that Mr. Collier’s rejection of Mr. Anderson’s hug on one

occasion is not a protected activity. First, the Court notes that the cases cited by Mr. Collier

regarding rejecting Mr. Anderson’s hug are inapposite as they describe instances where an

employee rejected a supervisor’s advances after long periods of alleged harassment. See Ogden

v.Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000) (worker subjected to unwelcome advances over

the course of over one year); E.E.O.C. v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015)

(worker subjected to repeated sexually suggestive comments “several times a day, ‘every day’”).

In the present matter, Mr. Collier tries to assert that denying Mr. Anderson from hugging him on

one occasion constitutes a protected activity. This type of singular rejection would not be a

protected activity. See Frank v. Harris County, 118 F.App’x 799, 804 (5th Cir. 2004)

(“[Plaintiff] provides no authority for the proposition that a single ‘express

rejection”…constitutes as a matter of law a protected activity for purposes of retaliation”). Thus,

the Court finds that Mr. Collier’s claims for retaliation fail because he has failed to allege a

protected activity. Ultimately, there is no factual basis to hold that his complaints to HR were

sufficient to alert them to concerns about unlawful harassment and the single rejection of the hug

would not constitute a protected activity. As such, Mr. Collier’s retaliation claims are hereby

DISMISSED.

f. Wage Payment Claim

Mr. Collier has admitted that he was paid for his work on December 5, 2017, and does

not oppose dismissal of the wage payment claim. Rec. Doc. 35, p. 68. As such, this claim is

hereby DISMISSED.

TH. Conclusion

As a result of the foregoing discussion, Mr. Collier’s claims are hereby DISMISSED.

Ultimately, the key issue in this case is that while Mr. Collier has established that there is a

genuine issue of material fact as to whether BMCC knew of his disability, he has failed to show

how any of BMCC’s decisions were tied to that disability, which is fatal to Mr. Collier’s claims.

THUS DONE AND SIGNED in Monroe, Louisiana on this 15th day of March, 2022.

TERR cA L ~

UNITED STATES DISTRIC FUDGE