# Garcia v. City of Amarillo, Texas

> District Court, N.D. Texas · July 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10448779

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** July 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10448779

## How later opinions describe it (automated extraction)

- stating that the court “must review the facts drawing all inferences most favorable to the party opposing the motion” (internal marks omitted)

## Opinion text

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT|COURT___ FILED
FOR THE NORTHERN DISTRICT TEXAS
AMARILLO DIVISION JUL 22 200
PETE GARCIA, § aRK, U.S. DISTRICT COURT
§ By_4
Plaintiff, § (A _/ Deputy
§
v. § 2:18-CV-95-Z-BR
§
CITY OF AMARILLO, TEXAS, §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before this Court is “Defendant’s Motion for Summary Judgment” (“Motion for Summary
Judgment”) filed by Defendant City of Amarillo, Texas (“Defendant”), on November 11, 2019. In
the motion, Defendant moves for summary judgment on all claims against it made by Plaintiff Pete
Garcia (“Plaintiff’).! For the reasons stated below, the Court GRANTS Defendant’s Motion for
Summary Judgment in its entirety.
I. BACKGROUND
The facts of this case are lengthy and have been comprehensively recited at multiple points
in multiple filings. See ECF Nos. 65 at 6-11, 69 at 6-11. The Court therefore declines to repeat
them in their entirety and instead will simply cite to the record when appropriate. Nevertheless,
these facts can be briefly summarized as follows.
Plaintiff was employed by Defendant as a firefighter and suffered an ear injury in an
on-the-job accident involving an air horn. Defendant placed Plaintiff on leave with full pay for 24
weeks while he recovered from his injury. During this period, Plaintiff submitted grievances to

! Plaintiff has filed multiple complaints in this case. See ECF Nos. 1, 26, 60. Defendant moves for summary judgment
on all claims appearing in Plaintiff's most recent amended complaint (ECF No. 60).

Defendant against co-employees that he believed were responsible for the injury and acquired an
attorney. Plaintiff then returned to light-work duty about six months after his injury and was
required to sign a document indicating the receipt of new work-related policies issued during his
leave of absence. Plaintiff expressed discomfort in signing the document without first consulting
his attorney and did not sign it. Consequently, he was placed back on leave with pay and given the
document and an accompanying packet containing the policies to review and sign. He also was
instructed not to train at any of the fire stations at his work. Plaintiff returned to one of the stations
to access his email on its computer system, and an argument between him and the district chief at
the station ensued. Plaintiff eventually left the station and later met with a different district chief
to discuss what had happened at the station. Two days later, Plaintiff failed to appear at the city
hall as directed to discuss his purportedly insubordinate behavior. He was indefinitely suspended
the next day, which is tantamount to termination.
On April 25, 2018, Plaintiff filed a complaint against Defendant in the District Court of
Potter County, Texas, 320th Judicial District (ECF No. 1-6) for unlawful discrimination under
Texas Labor Code Section 21.051 and failure to comply with the Family and Medical Leave Act.
On May 15, Defendant removed the case to this Court (ECF No. 1) and filed an answer to
Plaintiff's complaint (ECF No. 2).
On the same date, Defendant filed a motion to dismiss (ECF No. 3). On June 14, Plaintiff
filed a response to Defendant’s motion to dismiss (ECF No. 11), to which Defendant replied on
June 28 (ECF No. 14). On October 29, the United States Magistrate Judge entered findings and
conclusion regarding Defendant’s motion to dismiss and recommended that it be denied without
prejudice (ECF No. 27). On November 30, the Court adopted the Magistrate Judge’s findings,
conclusions, and recommendation (ECF No. 29).

On October 4 of the same year, Plaintiff filed an amended complaint against Defendant
(ECF No. 26). On October 3, 2019 — almost a year later — Plaintiff filed a second amended
complaint against Defendant (ECF No. 60) for the same causes of action as in his initial complaint
as well as for retaliation under Title VII of the Civil Rights Act of 1964 and injuries under the
Americans with Disabilities Act. On October 5, Defendant filed an answer to Plaintiff's second
amended complaint (“Second Amended Complaint”) (ECF No. 64).
On November 8, Defendant filed the Motion for Summary Judgment now before this Court
(ECF No. 65). On December 6, Plaintiff filed a response to Defendant’s Motion for Summary
Judgment (ECF No. 69). Finally, on December 23, Defendant filed a reply to Plaintiff's response
(ECF No. 72).
II. LEGAL STANDARD
In a civil case, “[a] party may move for summary judgment, identifying each claim or
defense — or the part of each claim or defense — on which summary judgment is sought.” FED. _
R. Civ. P. 56(b). When a summary judgment movant does not have the burden of proof on a claim,
it may obtain summary judgment by pointing the court to the absence of evidence on any essential
element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once
it does so, the nonmovant must go beyond its pleadings and designate specific facts demonstrating
that there is a genuine issue of material fact for trial. See id. at 324—25 (citations omitted); see also
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (citations omitted) (stating that “if
the movant does, however, meet this burden [of demonstrating the absence of a genuine issue of
material fact], the nonmovant must go beyond the pleadings and designate specific facts showing
that there is a genuine issue for trial”).

A genuine issue of material fact exists if the evidence is such that a reasonable trier of fact
could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). To meet its burden of showing that there is a genuine issue of material fact for trial, the
nonmovant must show more than “some metaphysical doubt as to the material facts,” or by
“conclusory allegations,” “unsubstantiated assertions,” or “only a scintilla of evidence.” Little, 37
F.3d at 1075 (internal marks omitted). Summary judgment is mandatory where the nonmovant
fails to meet this burden. Jd. at 1076. Additionally, summary judgment evidence must be viewed
in the light most favorable to the nonmovant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); see also Rosado v. Deters, 5 F.3d 119, 123 (Sth Cir. 1994) (stating
that the court “must review the facts drawing all inferences most favorable to the party opposing
the motion” (internal marks omitted)).
Ill. ANALYSIS
In the Second Amended Complaint, Plaintiff alleges several causes of action listed below
as follows: .
e Disparate treatment and retaliation under Chapter 21 of the Texas Labor Code
(also known as the Texas Commission on Human Rights Act, or the “TCHRA”);
e Retaliation under 42 U.S.C. § 2000¢-3(a) (“Title VII’);
e Violations under the Family Medical Leave Act (the “FMLA”); and
e Disparate treatment and retaliation under the Americans with Disabilities Act
(the “ADA”).
In response to these claims, Defendant first argues that they all should be dismissed “because
Plaintiff failed to meet mandatory requirements contained in all the statutes that contain deadlines

that must be met in order for a case to move forward.” ECF No. 65 at 12-13. Defendant then argues
on a variety of grounds that Plaintiff has failed to meet essential elements of each of his claims.
The Court will first analyze the preliminary issue of administrative exhaustion. Then, when
examining Plaintiff's claims and Defendant’s arguments against them, the Court will address them
in an order different from that listed by Plaintiff in his Second Amended Complaint. As explained
below, Plaintiff's claims under state law are largely governed by the same legal standards as their
counterparts under federal law. Consequently, the Court determines that claims of the same kind
are best discussed together. Specifically, the Court will address Plaintiffs disparate treatment
claim under Texas law with his disparate treatment claim under the ADA and his retaliation claim
under Texas law with his retaliation claim under Title VII and the ADA.
A. Administrative Exhaustion
The Court begins by examining the issue of administrative exhaustion under Plaintiff's
claims under both federal and state law.
1. Administrative Exhaustion under Title VII and the ADA
“Employment discrimination plaintiffs must exhaust administrative remedies before
pursuing claims in federal court. Exhaustion occurs when the plaintiff files a timely charge with
the [Equal Employment Opportunity Commission (“EEOC”)] and receives a statutory notice of
right to sue.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (Sth Cir. 2002). Administrative
exhaustion under the ADA regarding employment follows the same procedures as that under Title
VU. See 42 U.S.C. § 12117 (“The powers, remedies, and procedures set forth in sections
2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of [Title VII] shall be [those provided] . . . to
any person alleging discrimination on the basis of disability in violation of any provision of [the
ADA]... concerning employment.”).

In its recent opinion in Fort Bend Cty., Texas v. Davis, the Supreme Court has summarized
the procedures for administrative exhaustion for Title VII claims:
Title VII directs that a charge shall be filed with the EEOC by or on behalf of a
person claiming to be aggrieved within 180 days after the alleged unlawful
employment practice occurs. For complaints concerning a practice occurring in a
State or political subdivision that has a fair employment agency of its own
empowered to grant or seek relief, Title VII instructs the complainant to file her
charge first with the state or local agency. The complainant then has 300 days
following the challenged practice, or 30 days after receiving notice that state or
local proceedings have ended, whichever is earlier, to file a charge with the EEOC.
If the state or local agency has a “worksharing” agreement with the EEOC, a
complainant ordinarily need not file separately with federal and state agencies. She
may file her charge with one agency, and that agency will then relay the charge to
the other.
139 S: Ct. 1843, 1846 (2019) (internal marks omitted). Significantly, the Civil Rights Division of
the Texas Workforce Commission (the “TWC” or, in reference to the Civil Rights Division
specifically, the “TWCCRD”) has a worksharing agreement with the EEOC. See Tex. Admin.
Code § 819.76. It therefore follows that a plaintiff filing a complaint regarding an employment
practice occurring in Texas has 300 days to file a charge with the EEOC under Title VII and the
ADA. See also Collier v. Dallas Cty. Hosp. Dist., No. 3:17-CV-3362-D, 2019 WL 2394225, at *5
(N.D. Tex. June 6, 2019), aff'd, 805 F. App’x 306 (Sth Cir. 2020) (Fitzwater, S.J.) (“In states such
as Texas, which provide a state administrative mechanism to address claims of employment
discrimination, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300
days after learning of the conduct alleged.” (citations omitted)). In Davis, the Supreme Court also
held that:
Title VII’s charge-filing requirement is not of jurisdictional cast. Federal courts
exercise jurisdiction over Title VII actions pursuant to 28 U.S.C. § 1331’s grant of
general federal-question jurisdiction, and Title VII’s own jurisdictional provision,
42 U.S.C. § 2000e—-5(f)(3) (giving federal courts “jurisdiction [over] actions
brought under this subchapter’’). Separate provisions of Title VII, § 2000e—5(e)(1)
and (f)({1), contain the Act’s charge-filing requirement. Those provisions do not

speak to a court’s authority or refer in any way to the jurisdiction of the district
courts. Instead, Title VII’s charge-filing provisions speak to a party’s procedural
obligations.
139 S. Ct. at 1850-5 1 (emphasis added) (select internal marks omitted).
Here, Plaintiff filed a Charge of Discrimination (the “Charge”) (ECF No. 70-1 at 141) with
the EEOC on June 29, 2018. Because Plaintiff was terminated on or around December 1, 2017,
Plaintiff's Charge is well within 300 days of Defendant’s alleged discriminatory practice against
him. Therefore, Plaintiff's Charge is timely.”
Defendant objects to this conclusion on the ground that the Charge is “over 13 % [sic]
months after the accidental horn honk that occurred on May 15, 2017.” ECF No. 65 at 14.
“Therefore, the Court should conclude Plaintiff's EEOC Charge was late by more than a year and
his claims of unlawful discrimination and retaliation pertaining to the horn honk incident in May
2017 should be dismissed.” /d.
However, this objection misunderstands the 300-day deadline. Under the relevant law
discussed above, a plaintiff filing a complaint about an unlawful employment practice in Texas has
300 days to file a charge with the EEOC from the date of the alleged practice. In the instant case,
the unlawful employment practice alleged by Plaintiff is not the horn-related injury that occurred on
May 15, 2017, but rather his termination of employment on or around December 1, 2017.
Consequently, Plaintiff filed his Charge in a timely fashion. Because he has exhausted all
administrative remedies under Title VII and the ADA and received a statutory notice of a right to
sue, ECF No. 70-1 at 160, Plaintiff is permitted to pursue his Title VII and ADA claims in this Court.

2 For this reason, the Court does not need to examine here whether the “Intake Questionnaire” filed by Plaintiff with
the EEOC on or around December 15, 2017, qualifies as a charge for the purposes of his Title VII and ADA claims.

2. Administrative Exhaustion under the TCHRA
The TCHRA also addresses employment discrimination and the administrative exhaustion
procedures for claims arising under it. Sw. Convenience Stores, LLC v. Mora, 560 S.W.3d 392,
399-400 (Tex. App. 2018). Specifically:
Chapter 21 of the Texas Labor Code [(the “Act”)] . . . makes it unlawful for an employer
to discriminate against an employee with respect to compensation or the terms, conditions,
or privileges of employment because of race, color, disability, religion, sex, or national
origin. The Act is modeled on federal law and executes the purposes of Title VII of the
Civil Rights Act of 1964. Accordingly, we may consider federal law that interprets
analogous Title VII provisions. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 507
(Tex. 2012) (“[W]e consider the plain terms of the [Labor Code] and our precedent, and
look to federal law for guidance only when the relevant provisions of Title VII are
analogous.”’).
A person claiming a violation of the Act must first exhaust her administrative remedies
prior to bringing a civil action. Exhausting administrative remedies is a “mandatory
prerequisite” in Texas. ... To bring a lawsuit for unlawful employment practices, a plaintiff
must first have filed an administrative charge with the EEOC or the TWC. A plaintiff must
file her charge within /80 days of the alleged discriminatory practice and any late-filed
charge will be dismissed as untimely. Tex. Lab. Code Ann. §§ 21.201, 21.202. This process
affords the opportunity for informal investigation of the allegation while reducing costly
litigation. In short, unless and until an employee timely submits her complaint against her
employer to the EEOC or TWC in the form of a charge of discrimination, Texas courts are
barred from adjudicating that complaint.
Mora, 560 S.W.3d at 399-400 (emphasis added) (select internal marks omitted).
Notably, the deadline for a charge filed under the TCHRA is 180 days from the date of the
alleged unlawful employment practice — not 300 days, as is the case for charges filed under Title
VII or the ADA. See also Collier, WL 2394225, at *5 (“A complaint under the TCHRA must be
filed not later than the 180th day after the date the alleged unlawful employment practice
occurred.” (internal marks omitted)). Finally, as noted earlier, the Civil Rights Division of the
TWC has a worksharing agreement with the EEOC, meaning that a charge filed with the EEOC
counts for purposes of the TCHRA.

Here, Plaintiff's Charge filed with the EEOC counts as a charge filed with the Civil Rights
Division of the TWC for the purposes of the TCHRA. However, Plaintiffs Charge was filed with
the EEOC on June 29, 2018 — 210 days after he was terminated by Defendant on December 1,
2017. Because the date of filing exceeds the 180-day deadline under the TCHRA, Plaintiff's
Charge was untimely under this statute.
However, Plaintiff argues that the Intake Questionnaire with the EEOC that he signed on
December 13, 2017 (the “Intake Questionnaire”) (ECF No. 70-1 at 101-09) qualifies a charge for
EEOC purposes — and thus for purposes of the TCHRA. Because December 13, 2017, is well
within 180 days of the date of Plaintiff's termination, Plaintiff's Intake Questionnaire would
qualify as a timely charge for the purposes of the TCHRA. Accordingly, the Court must examine
whether the Intake Questionnaire does in fact qualify as a charge.
Regarding what filings count as a charge,
the Supreme Court has held that a questionnaire may qualify as a charge if it
satisfies the EEOC’s charge-filing requirements, and if it can be reasonably
construed as a request for the agency to take remedial action to protect the
employee’s rights or otherwise settle a dispute between the employer and the
employee. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). .. . [E]very
circuit (including this one) to have considered whether Holowecki’s holding
extends to Title VII and the ADA has determined that it does. Thus, an intake
questionnaire asserting claims under the ADA can qualify as a charge if it complies
with Holowecki’s minimum standards.
EEOC v. Vantage Energy Servs., Inc., 954 F.3d 749, 753-54 (Sth Cir. 2020).
Both the Supreme Court and the Fifth Circuit have held that a plaintiffs intake
questionnaire to the EEOC can qualify as a charge under the Holowecki test. See Holowecki, 552
U.S. at 404 (finding that the “[rJespondent’s completed intake form” constituted a charge in part
because it “contained all of the information outlined in 29 CFR § 1626.8... .”); Vantage Energy
Servs., Inc., 954 F.3d at 754 (“The next question is whether [former employee] Poston’s intake

questionnaire qualified as a charge under the Holowecki test. The EEOC contends that it did, and
we agree.”). The Fifth Circuit also has held that checking “Box 2” on an intake questionnaire
suffices to request agency action:
The intake questionnaire also satisfies Holowecki’s additional request-to-act
condition. Poston checked “Box 2” on the questionnaire, which states “I want to
file a charge of discrimination, and I authorize the EEOC to look into the
discrimination I described above.” This constitutes a clear manifestation of
Poston’s intent for the EEOC take remedial action.
Vantage Energy Servs., Inc., 954 F.3d at 755.
Here, Plaintiff's Intake Questionnaire does not qualify a timely charge. Although Plaintiff
checked “Box 2” at the end of his Intake Questionnaire, ECF No. 70-1 at 104, his Intake
Questionnaire fails to include “[a] clear and concise statement of the facts, including pertinent
dates, constituting the alleged unlawful employment practices” as required by 29 C.F.R. § 1626.8.
Specifically, although Plaintiff describes two other instances of discriminatory conduct occurring
on October 29, 2016, ECF No. 70-1 at 102,? Plaintiff fails to describe the unlawful employment
practice that he allegedly suffered on December 1, 2017. At most, Plaintiff describes the horn-
related accident on May 15, 2017, in attachments to his Intake Questionnaire. See ECF No. 70-1
at 105-06, 108-09. But this is irrelevant to Plaintiff's claims. The accident is not the relevant
unlawful employment practice — Plaintiffs termination on December 1, 2017, is.
Consequently, Plaintiff's Intake Questionnaire cannot qualify as a charge with the EEOC
and thus does not constitute a timely charge under the TCHRA. Because Plaintiff has failed to
exhaust his administrative remedies under the TCHRA, this Court cannot adjudicate Plaintiff's
TCHRA claim of disparate treatment and retaliation. This fact alone is sufficient reason for this

3 Because Plaintiff appears to have omitted these allegations in his Second Amended Complaint, the Court declines to
address them or any claims predicated upon them.

10

Court to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff's TCHRA
claim. However, as subsequent sections of this Memorandum Opinion and Order will show,
Plaintiff's TCHRA claim fails to survive summary judgment even on its merits. Accordingly, the
Court will analyze Plaintiff's TCHRA claim in the sections below for the sake of completeness.
B. Disparate Treatment under the Texas Labor Code and the ADA
Disparate treatment is “the most easily understood type of discrimination.” Jnt’l Broth. of
Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). “In a discriminatory-termination action
under the ADA, the [plaintiff] may either present direct evidence that [he] was discriminated
against because of [his] disability or alternatively proceed under the burden-shifting analysis first
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” EEOC v. LHC Grp., Inc.,
773 F.3d 688, 694 (Sth Cir. 2014) (citing Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245 (Sth
Cir. 2013)). Because Plaintiff has presented no direct evidence of discrimination, the Court’s
analysis will be limited to the McDonnell Douglas method.
To establish a prima facie case, “a plaintiff must prove: (1) that he has a disability; (2) that
he was qualified for the job; and (3) that he was subject to an adverse employment decision on
account of his disability.” Jd. at 695 (quoting Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847,
853 (Sth Cir. 1999)). “Under the ADA, ‘discrimination need not be the sole reason for the adverse
employment decision, [but] must actually 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. U.S. Dep’t of Treasury, 304 F.3d 500, 503-04 (Sth Cir. 2002)).
If a plaintiff establishes a prima facie case of discrimination, then the “burden shifts to the
employer to articulate legitimate, nondiscriminatory reason for its employment action.” Raytheon
Co. v. Hernandez, 540 U.S. 44, 50 (2003) (citing McDonnell Douglas, 411 U.S. at 802).

11

If the employer meets this burden, the presumption of intentional discrimination disappears. Jd. at
49 n.3. But a plaintiff must “offer sufficient evidence to create a genuine issue of material fact
either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext
alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct,
and another motivating factor is the plaintiff's protected characteristic (mixed-motive[s]
alternative).” LHC Grp., 773 F.3d at 702 (citing Rachid v. Jack In The Box, Inc., 376 F.3d 305,
312 (Sth Cir. 2004)).
In response to a motion for summary judgment, an employee must present “substantial
evidence” that the employer’s legitimate, nondiscriminatory reason for termination is
pretextual. Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015) (quoting
Laxton v. Gap Inc., 333 F.3d 572, 578 (Sth Cir. 2003)). Pretext is established “either through
evidence of disparate treatment or by showing that the employer’s proffered explanation is false

or ‘unworthy of credence.’” Delavel v. PTech Drilling Tubulars, 824 F.3d 476, 480 (Sth Cir. 2016)
(quoting Laxton, 333 F.3d at 578).
1. “Disabled” within the Meaning of the ADA and Texas Labor Code
Defendant first argues that Plaintiff's claims for disparate treatment fail because he has not
established that he is disabled or is regarded as disabled under the ADA and the Texas Labor Code.

ECF No. 65 at 15. Specifically, Defendant alleges that Plaintiff has made no showing that the horn-
related accident affected his major life activity of working. Jd. This is in reference to the ADA’s
definition of “disability,” which with respect to an individual means “a physical or mental
impairment that substantially limits one or more major life activities of such individual” under 42
U.S.C. § 12102(1)(A).

492

The EEOC has issued detailed regulations regarding the definition of “disability” under
the ADA:
Physical or mental impairment means—
(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more body systems, such as neurological, musculoskeletal,
special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic,
skin, and endocrine.
29 C.F.R. § 1630.2(h) (emphasis added).
The term ‘substantially limits’ shall be construed broadly in favor of expansive
coverage, to the maximum extent permitted by the terms of the ADA. ‘Substantially
limits’ is not meant to be a demanding standard. . .. An impairment is a disability
within the meaning of this section if it substantially limits the ability of an
individual to perform a major life activity as compared to most people in the general
population. An impairment need not prevent, or significantly or severely restrict,
the individual from performing a major life activity in order to be considered
substantially limiting.”
29 C.F.R. § 1630.2(j) (emphasis added). Major life activities include, but are not limited to:
Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, interacting with others, and
working ....
29 C.F.R. § 1630.2(i) (emphasis added).
Here, Plaintiff claims in his Second Amended Complaint that “he was and continues to be
treated for a ruptured ear drum, permanent hearing loss, requiring a hearing aid for life, dizziness
and a variety of other neurological injuries.” ECF No. 60 at 5. In response, Defendant argues that
Plaintiff's loss of hearing has not affected his major life activity of working. ECF No. 65 at
20-21. However, working is only one of the enumerated activities that may constitute a major life
activity. Thus, whether Plaintiff's accident has substantially limited his ability to work or has
resulted in the need for accommodations at work is not dispositive.

13

Next, Defendant cites a string of cases, including Carothers v. County of Cook, 808 F.3d
1140, 1147 (7th Cir. 2015), to show that Plaintiff still must demonstrate his impairment limits his
ability to perform a class of jobs or broad range of jobs. ECF No. 72 at 8. However, this rule is not
relevant here. This is because Plaintiff has not alleged that his substantially limited major life
activity is specifically his ability to work. This stands in stark contrast to the plaintiff in Carothers.
See Carothers, 808 F.3d at 1147 (“if ‘working’ is the only major life activity [plaintiff] claims is
impaired, then she has to show that her [impairment] ‘significantly restricted [her] ability to
perform either a class of jobs or a broad range of jobs’”) (quoting Povey v. City of Jeffersonville,
Ind., 697 F.3d 619, 623 (7th Cir. 2012)). Viewed in a light most favorable to Plaintiff, the record
reflects that the major life activity that has been substantially limited by the accident is in fact his
hearing, which is one of the enumerated activities listed in 29 C.F.R. § 1630.2(1).
Because Plaintiff claims he has suffered a loss of hearing, the relevant inquiry is whether
Plaintiff's hearing is substantially limited pursuant to the language in 42 U.S.C. § 12102(1)(A).
Defendant argues that “Plaintiff has provided no evidence that his hearing impairment
substantially limits his hearing compared to most people in the general population, nor did Plaintiff
present evidence about the ameliorative effects of any hearing aids available or used by him to
correct his hearing.” ECF No. 72 at 9.
However, the Court is not persuaded for two reasons. First, “[t]he determination of whether
an impairment substantially limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures.” 29 C.F.R. § 1630.2(j)(vi). Hearing aids, like what
Plaintiff uses, are listed as a mitigating measure under the regulations. 29 C.F.R. § 1630.2(j)(5)@).
Second, this Court sees no reason why permanent hearing loss requiring a hearing aid for life is not
at least some evidence of his hearing being substantially limited compared to most people in the

14

general population. As further evidence, Plaintiff states in his response to Defendant’s Motion for
Summary Judgment that he has suffered a thirty-three percent loss of hearing. ECF No. 69 at 25.
Because the substantial limitation inquiry is not meant to be demanding, the Court FINDS
that Plaintiff has alleged sufficient facts to show that his hearing is substantially limited, and
therefore FINDS that Plaintiff has made a sufficient showing that he is disabled under the ADA.
The Court next addresses Defendant’s argument that Plaintiff has not established that he is
disabled under the Texas Labor Code, which adopts the same definition as the ADA:
’Disability’ means, with respect to an individual, a mental or physical impairment
that substantially limits at least one major life activity of that individual, a record
of such an impairment, or being regarded as having such an impairment.
Tex. Lab. Code Ann. § 21.002(6); see also 40 Tex. Admin. Code § 819.11(5) (“Disability
--A mental or physical impairment that substantially limits at least one major life activity of an
individual, a record of such mental or physical impairment, or being regarded as having such an
impairment as set forth in §3(2) of the Americans with Disabilities Act of 1990, as amended,
and Texas Labor Code §21.002(6).”). “Because TCHRA ‘parallels the language of the [ADA]’,
Texas courts follow ADA law in evaluating TCHRA discrimination claims.” Williams v. Tarrant
Cty. Coll. Dist., 717 Fed. Appx. 440, 444—45 (Sth Cir. 2018) (quoting Pegram v. Honeywell, Inc.,
361 F.3d 272, 285-87 (Sth Cir. 2004)).
The Court has found that Plaintiff has made a sufficient showing that he is disabled under
the ADA. Therefore, the Court also FINDS that Plaintiff has made a sufficient showing that he is
disabled under the Texas Labor Code.
2. Whether Plaintiff Was Qualified for the Job
Having shown that he is disabled, Plaintiff must also show that he was qualified for the job
as a firefighter. “The plaintiff bears the burden of proving that an available position exists that he

15

was qualified for and could, with reasonable accommodations, perform.” Jenkins v. Cleco Power,
LLC, 487 F.3d 309, 315-16 (5th Cir. 2007) (citing Forman v. Babcock & Wilcox Co., 117 F.3d 800,
810 n.14 (5th Cir. 1997)); see also 42 U.S.C. § 12111(8) (“The term ‘qualified individual’ means
an individual who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires”). “A plaintiff can establish that
he is qualified by showing that either (1) he could perform the essential functions of the job in spite
of his disability, or (2) that a reasonable accommodation of his disability would have enabled him
to perform the essential functions of the job.” Moss v. Harris Cty. Constable Precinct One, 851
F.3d 413, 417 (Sth Cir. 2020) (cleaned up) (quoting LHC Grp., 773 F.3d at 697).
“Essential functions” are “fundamental” as opposed to “marginal” job duties. 29 C.F.R. §
1630.2(n)(1). A job function may be considered essential for several reasons, such as “the position
exist[ing] to perform that function”; because of “a limited number of employees available” to
perform the function, or the function being “so highly specialized that the incumbent in the position
is hired for his or her expertise or ability to perform the particular function.” 29 C.F.R. §
1630.2(n)(2). “Fact-finders must determine whether a function is ‘essential’ on a case-by-case
basis.” Credeur v. Louisiana Through Off. of the Att’y Gen., 860 F.3d 785 (Sth Cir. 2017) (quoting
LHC Grp., 773 F.3d at 698). The EEOC has listed seven non-exhaustive factors to guide the
essential-function inquiry:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing
applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.

16

29 C.F.R. § 1630.2(n)(3). The Fifth Circuit also has addressed whether an individual is qualified
under 42 U.S.C. § 12111(8) in many cases. See, e.g., Clark v. Champion Nat'l Sec., Inc., 952 F.3d
570, 582 (5th Cir. 2020) (finding that a diabetic who suffered a diabetic-induced loss of
consciousness at work was unable to perform essential functions of the job); Gonzalez v. United
Parcel Serv., 777 Fed. Appx. 735, 738 (Sth Cir. 2019) (finding that a plaintiff was unqualified for
a desk job because he could not work more than four hours a day and had difficulty making
repetitive arm, hand, and wrist movements); Credeur, 860 F.3d at 795 (Sth Cir. 2017) (finding that
a litigation attorney was unqualified because she could not maintain regular work-site attendance);
Spencer v. KS Mgmt. Serv., L.L.C., 680 Fed. Appx. 311, 314 (Sth Cir. 2017) (finding that a medical
assistant was unqualified because she could not pass a test covering medications and vaccinations).
Here, nothing in the record suggests that Plaintiff requested or required any kind of
accommodation. Furthermore, there is no evidence that he was unable to perform any of the physical
demands that the job requires or that the use of a hearing aid would impair his ability to perform the
essential functions of the job. Moreover, Plaintiff was given a full release back to work on November
27, 2017, under the expectation that he would perform those essential functions. ECF No. 69 at 21.
Defendant argues that Plaintiff “failed to demonstrate that he could perform the functions
of the job as a preliminary matter” when he refused to sign an acknowledgment of receipt of the
packet of employment policies. ECF No. 72 at 13. It is true that among the factors listed in 29
C.F.R. § 1630.2(n)(3), courts should give the greatest weight to an employer’s judgment on
essential functions of a job. Credeur, 860 F.3d at 792. However, “courts should not give blind
deference to an employer’s judgment, but should instead evaluate the employer’s words alongside
its policies and practices.” Id. at 794 (citing Ford Motor Co., 782 F.3d 753, 765-66 (6th Cir.
2015)). Accordingly, this Court can simply not accept that “signing a packet” is an essential

17

function of a firefighter and that Plaintiff rendered himself unqualified for the job by declining to
sign it until he could review it with his lawyer.
3. Defendant’s Reason for Taking an Adverse Employment Action
There is no dispute among the parties that termination is an adverse employment action.
See LHC Grp., 773 F.3d at 700 (“[Plaintiff] suffered an adverse employment action-namely,
termination”) (citing 42 U.S.C. § 12112(a)). Plaintiff alleges that the adverse employment action
taken against him was his termination occurring two days after his release to full duty. ECF No.
69 at 25. In response, Defendant argues that Plaintiff has presented no evidence that any alleged
disability was a motivating factor for his termination to prove his prima facie case: ECF No 72. At
11. Defendant also argues that even assuming otherwise, it has articulated a legitimate,
nondiscriminatory reason for terminating Plaintiff's employment by alleging three instances of
Plaintiff's insubordinate and disruptive behavior. ECF No. 65 at 18.
Plaintiff offers no evidence showing that his termination was influenced by a loss of
hearing to begin with. He has presented no direct evidence of discrimination and no evidence that
his hearing disability was even a motivating factor. While he has alleged that he suffered
harassment and bullying in the past, these incidents occurred before he became disabled. ECF No.
60 at 2~3. After he became disabled, he spent most of that time on leave and the rest on light duty.
Id. at 6-7. Plaintiff argues that the Court should infer discrimination from Defendant’s conduct.
However, this conduct could have occurred either for the reasons given by Defendant or even for
reasons that might support Plaintiffs claims under Title VII.
Because Plaintiff has not shown that his disability played a role in Defendant’s decision to
terminate his employment, the Court FINDS that Plaintiff has failed to make a prima facie showing

1Q :

of disparate treatment under the ADA. Accordingly, Defendant’s Motion for Summary Judgment
is GRANTED with respect to Plaintiff's ADA claim.
C. Retaliation under the Texas Labor Code, Title VII, and the ADA
Title VII and the Texas Labor Code both prohibit employers from retaliation against
employees engaged in protected activities. See 42 U.S.C § 2000e-3(a) (2005); Tex. Lab. Code
Ann. § 21.055. “In a retaliation case, the plaintiff must first make a prima facie showing: (1) that
he is engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that
a causal link existed between the protected activity and the adverse action.” Pineda v. United
Parcel Serv., Inc., 360 F.3d 483, 487 (Sth Cir. 2004) (citing Gee v. Principi, 289 F.3d 342, 345
(5th Cir. 2002)); see also Univ. of Tex., Sw. Med. Ctr. v. Nascar, 570 U.S. 333, 360 (2013) (“Title
VII retaliation claims must be proved according to traditional principles of but-for causation, not
the lessened [motivating factor] causation test stated in § 2000e—2(m).”) A plaintiff has engaged
in protected activity if he has “opposed any practice made an unlawful employment practice” or
“made a charge, testified, or participated in an investigation proceeding or hearing.” 42 U.S.C §
2000e-3(a). Retaliation claims under both federal and state law utilize the same Title VII
framework. See Wallace v. Seton Fam. of Hosps., 777 Fed. Appx. 83, 90 (Sth Cir. 2019).
Plaintiffs claims of retaliation under the ADA mirror his claims under the Texas Labor
Code and Title VII. Specifically, Plaintiff claims that he engaged in protected conduct when he
opposed Defendant’s unlawful employment practices and when he filed a complaint with the
EEOC and the TWCCRD. ECF No. 60 at 12. The legal analysis is also the same. See Feist v.
Louisiana, Dept. of Justice, Off. of the Att’y. Gen., 730 F.3d 450 (Sth Cir. 2013) (“To establish a
prima facie case of retaliation under the ADA or Title VI, a plaintiff must show that (1) she
participated in an activity protected under the statute; (2) her employer took an adverse

19

employment action against her; and (3) a causal connection exists between the protected activity
and the adverse action.”).
The ADA also provides the same definition of “protected activity” as that under Title VII.
See 42 § U.S.C. 12203(a) (“No person shall discriminate 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”). Unlike the requirements for establishing a case of disparate treatment
under the ADA, a plaintiff does not need to show that he suffers from an actual disability; rather,
he only needs “a reasonable, good faith belief that the statute has been violated.” Tabatchnik v.
Cont’l Airlines, 262 Fed. Appx. 674, 676 (Sth Cir. 2008) (quoting Selenke v. Med. Imaging of
Colorado, 248 F.3d 1249, 1264 (10th Cir. 2001)). Plaintiff easily satisfies this requirement, as this
Court has already determined that he has a disability under the ADA. Supra at 15.
1. Protected Activity
“To satisfy the ‘opposition clause,’ [a plaintiff] need not prove that [the defendant’s]
practices were actually unlawful, but only that he had ‘a reasonable belief that the employer was
engaged in unlawful employment practices.’” Byers v. Dallas Morning News, Inc., 209 F.3d 419,
428 (5th Cir. 2000) (quoting Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130,
1140 (Sth Cir. 1981)). Plaintiff claims that he engaged in protected activity when he opposed
Defendant’s alleged unlawful employment practices and when he prepared and filed an
administrative complaint with the EEOC and the TWCCRD. ECF No. 60 at 10.
Regarding the first claim, Plaintiff complained to his supervisors and followed up with a
formal grievance including allegations of willful negligence and intentional act to cause harm. See
ECF Nos. 69 at 22, 60 at 5. However, the Fifth Circuit has held that “[a]n employee’s complaint

90

to her employer that is vague, without any reference to an unlawful employment practice under
Title VII, does not constitute protected activity.” Jenkins v. Louisiana Workforce Comm’n, 713 F.
Appx. 242, 246 (Sth Cir. 2017) (quoting Paske v. Fitzgerald, 785 F.3d 977, 986 (Sth Cir. 2015)).
For example, in Jenkins, the Fifth Circuit reasoned that while the plaintiff was African American
and the other parties are white, her complaint made no allegation that her grievance was opposing
or protesting racial or sexual discrimination. /d. In the instant case, while Plaintiff alleges that he
informally complained about harassment and prohibited gambling in 2016, Plaintiff's Second
Amended Complaint only specifies that his May 15, 2017 grievance pertained to “willful
negligence and intentional act to cause harm to another firefighter” related to the horn-related
accident. ECF No. 60 at 5. Because this grievance did not reference unlawful employment
practices under Title VII, Plaintiff's grievance does not constitute protected activity within the
meaning of Title VII. Similarly, Plaintiff's grievance does not constitute protected activity within
the meaning of § 21.055 of the Texas Labor Code or 42 § U.S.C. 12203(a).
Plaintiff also argues that his filing of the EEOC and TWCCRD claims constitutes protected
action. ECF No. 60 at 10. But the Fifth Circuit has held that post-termination filings are not
protected actions. See Castlino v. Thomas, 141 Fed. App’x 255, 257 (Sth Cir. 2005) (“[Plaintiff]
also alleges that he was terminated in retaliation for filing an EEOC discrimination charge. This
claim is without merit since the EEOC charge was filed after [plaintiff] had been terminated by
the [defendant]”). However, this case is arguably distinguishable from Castlino. This is because
while Plaintiff did not actually file the complaint until December 15, 2017 — two weeks after he
was fired — he provided notice to Defendant in mid-September of 2017 of the charge of
discrimination that he was prepared to file, notice of his retention of counsel, and an invitation to
engage in pre-filing discussions. ECF No. 60 at 6, 7.

21

Some jurisdictions have held or suggested that notice of intent to file a charge also
constitutes protected activity. See, e.g., Moore v. Castro, 192 F. Supp. 3d 18, 44 (D.D.C. June 17,
2016); Elwakin v. Target Media Partners Operating Co. LLC, 901 F. Supp. 2d 730, 759 (E.D. La.
Oct. 9, 2012) (where the district court reasoned that the defendant could not have retaliated because
there was no indication that the plaintiff had threatened to file a charge during the course of her
employment); Smith v. R.R. Donnelley and Sons Co., No. 10-1417, 2011 WL 4346340 (E.D. Pa.
Sept. 16, 2011); EEOC v. Eagle Mgmt. Grp., No. 1:05-CV—-1215—WBH/AJB, 2006 WL 8435746,
at *8 (N.D. Ga. Sept. 18, 2006); Williams v. Dictaphone Corp., 112 F. Supp. 2d 267, 277-78
(W.D.N.Y. Sept. 16, 2000). While Smith addressed the issue of a notice of intent to file a workers’
compensation claim, this Court finds its underlying reasoning persuasive and applicable to the
instant case:
{I]t is the reporting of the work-related injury in conjunction with the employee’s
expression of intent to file a workers compensation claim that is enough to trigger
the protection afforded by the Act. This stands to reason because, without question, □
the internal reporting of a workplace injury to the employer is the first step in
pursuing a workers’ compensation remedy. A contrary conclusion limiting the
definition of protected activity to only the filing of a claim would frustrate the Act
by giving employers a window to escape liability by beating an injured employee
to the punch. That is, an employer who had been notified that an employee has been
injured on the job and knows of the injured employee’s intent to file a workers
compensation claim, if the employer is the first to act, may terminate the injured
employee before that employee reasonably has the opportunity to actually the claim
documents.
2011 WL 4346340, at *6. Similarly, a rule which would permit employers to retaliate against
employees after giving a notice of intent to file a charge would frustrate the purposes of Title VII
and its progeny by allowing employers to terminate the employees and beat them to the punch
before they actually file. □

99

The limited Fifth Circuit case law on the issue also indicates that a notice of intent to file
is protected activity. In Jefferies v. Harris Cty. Cmty. Action Ass’n, the plaintiff argued that she
was fired in retaliation for filing an EEOC charge. 615 F.2d 1025, 1035 (Sth Cir. 1980). The district
court found that the defendant could not have received notice of the filing of the charge until well
after the decision was made to terminate her employment. Jd. The Fifth Circuit could not consider
this to be harmless error because the record indicated that the plaintiff had alerted the defendant of
her intent to file the charge. Jd. After remand, the Fifth Circuit affirmed the district court’s decision
that while the defendant had knowledge that the plaintiff had filed an EEOC complaint prior to her
discharge, “the evidence showed that she was in fact discharged for . . . a legitimate and non-
pretextual reason.” Jefferies v. Harris Cty. Cmty. Action Ass’n, 693 F.2d 589, 591 (Sth Cir. 1982).
Notably, on facts similar to this case, the plaintiff's notice of intent was sufficient for the burden
to then shift to the defendant under the McDonnell Douglas test.
Here, while Defendant claims it never received notice from the EEOC or the TWCCRD
that Plaintiff filed a charge until after his termination, it does not deny that Plaintiff had provided
notice of his intent to file. ECF No. 65 at 29. Given the above reasoning, this Court holds that
Plaintiff engaged in protected activity when he gave Defendant notice of his intent to file charges
under the EEOC and the TWCCRD.
2. Causal Connection
Even if the activity Plaintiff engaged in was protected, Plaintiff must provide sufficient
evidence to show a causal nexus between his protected activity and his termination. “To establish
a causal connection, a plaintiff must first show that the decision maker was aware of
the protected activity.” McLaurin v. City of Jackson Fire Dept., 217 Fed. Appx. 287, 288

93 □

(Sth Cir. 2006) (citing Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (Sth Cir. 2003)). This
element is satisfied because Defendant had notice of Plaintiffs intent to file charges.
“(T]he mere fact that some adverse action is taken after an employee engages in some
protected activity will not always be enough” to prove a connection between the protected activity
and the adverse employment action. Roberson v. Alltell Information Servs., 373 F.3d 647, 655 (Sth
Cir. 2004) (quoting Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 n.3 (Sth Cir. 1997)).
However, “[c]lose timing between an employee’s protected activity and an adverse action against
him may provide the ‘causal connection’ required to make out a prima facie case of retaliation.”
Swanson, 110 F.3d at 1180 (quoting Armstrong v. City of Dallas, 997 F.2d 62, 67 (Sth Cir. 1993)).
Moreover, “a time lapse of up to four months has been found sufficient to satisfy the causal
connection for summary judgment purposes.” Evans v. City of Houston, 246 F.3d 344, 354 (Sth
Cir. 2001) (quoting Weeks v. NationsBank, N_A., No. CIV.A.3:98-CV-—1352M, 2000 WL 341257,
at *3 (N.D. Tex. Mar. 30, 2000)). However, close temporal proximity, without more, is insufficient
to show causation. See McDowell v. Home Depot USA, Inc., 126 Fed. Appx. 168, 170 (Sth Cir.
2005) (citing Swanson, 110 F.3d at 1188). Such evidence could include “an employment record
that does not support dismissal, or an employer's departure from typical policies and procedures.”
Feist, 730 F.3d at 450 (citing Schroeder v. Greater New Orleans Fed. Credit Union, 664 F.3d
1016, 1024 (Sth Cir. 2011)).
Here, Defendant argues that the causal connection between Plaintiff's complaints and □
grievance and his termination is cast into doubt by the fact that his first complaint was in 2016 and
he did not file a formal grievance until mid-May of 2017. ECF No. 65 at 25. However persuasive
that may be, the same cannot be said about the timing between Defendant being put on notice of
Plaintiff's intent to file with the EEOC and the TWCCRD and Plaintiffs termination.

IA

Plaintiff gave his notice in mid-September of 2017 and was terminated on November 30, 2017.
See Nos. 60 at 6-7, 65 at 5. Because these events occurred within three months of each other, they
are close enough in proximity under Fifth Circuit precedent to help establish a causal connection
for summary judgment purposes.
As noted, this by itself is not sufficient to satisfy the causal requirement without other
evidence of retaliation. In his Second Amended Complaint, Plaintiff stated that he had been an
employee of the Fire Department since 1994, served “with distinction and without reprimand,”
and obtained numerous specializations during that time. ECF No. 60 at 2. A service record of 23
years with distinction and without reprimand which includes many specializations is “an
employment record that does not support dismissal” by any standard. However, Defendant
disputes this record, alleging three instances of insubordination in November of 2017. But viewed
in a light most favorable to Plaintiff, the Court FINDS that Plaintiff's employment record for the
23 years prior to his final month of employment and the close temporal proximity between his
notice of intent to file an EEOC claim and his termination satisfies the causal requirement to
survive summary judgment.
3. Defendant’s Reason for Terminating Plaintiff
The McDonnell Douglas burden shift applies to retaliation claims under both the ADA and
Title VII. See Tabatchnik, 262 Fed. Appx. at 676 (“If the plaintiff establishes a prima facie case
[under the ADA], the defendant must come forward with a legitimate, non-discriminatory reason
for the adverse employment action. If such a reason is provided, the plaintiff must submit sufficient
evidence that the proffered reason is a pretext for retaliation. The employee must show that but for
the protected activity, the adverse employment action would not have occurred.” (citations
omitted)); Dickerson v. Metro. Dade County, 659 F.2d 574, 580 (Sth Cir. 1981) (“The complainant

94

in a Title VI action bears the initial burden of establishing a prima facie case of retaliatory conduct.
The burden of production then shifts to the employer to articulate some legitimate
nondiscriminatory reason for terminating the employee.” (citations omitted)). In Aldrup v.
Caldera, the Fifth Circuit held that the “failure of a subordinate to follow a direct order of a
supervisor is a legitimate nondiscriminatory reason for taking adverse employment action.” 274
F.3d 282, 288 (Sth Cir. 2001) (citing Chaney v. New Orleans Pub. Facility Mgmt., 179 F.3d 164,
167 (5th Cir. 1999)).
“If the employer articulates a legitimate nondiscriminatory reason for termination, the
burden shifts back to the plaintiff to show that that articulated reason was pretextual. Dickerson,
659 F.2d at 580. A plaintiff cannot establish pretext “even if the employer’s reason is ultimately
found to be mistaken, foolish, trivial, or baseless.” Seeger v. Cincinnati Bell Telephone Co., LLC,
681 F.3d 274 (6th Cir. 2012) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998)).
The relevant question for the purposes of a pretext analysis is whether a defendant’s actions were
based on an honest belief. See Leibforth v. Belvidere Nat’l Bank, 337 F.3d 931, 934 (7th Cir. 2003);
Moody v. M.W. Kellogg Co., No. 98-20757, 1999 WL 153032, at *6 n.16 (Sth Cir. 1999).
Here, Defendant claims that it had a legitimate nondiscriminatory reason in taking an
adverse employment action. Specifically, it alleges Plaintiff was insubordinate in his refusal to
sign documents, his refusal to leave the station following his being placed on leave, and his refusal
to meet with the Fire Chief to discuss the prior two allegations of insubordination. See ECF Nos.
72 at 10, 65 at 18-19. Because Defendant has articulated a legitimate nondiscriminatory reason
for terminating Plaintiff's employment, the burden then shifts back to the Plaintiff to show that
Defendant’s given reasons are mere pretext.

YB

Much of the parties’ arguments relate to the “packet incident” which occurred roughly three
days after Plaintiffs return for light-duty. ECF No. 60 at 6. Plaintiff argues that he did not refuse
to sign the documents but rather only requested the opportunity to read and review them with his
attorney, and that Defendant’s assertion is contradicted by others who were present. /d.; see also
ECF No. 69 at 21. Plaintiff further states that he was not being insubordinate by entering the station
a couple of days later because he received permission to enter the station to check his e-mail
account. Jd. at 7.
However, although Plaintiff argues that he was not being insubordinate, the relevant
question is whether Defendant honestly believed he was. Plaintiff has shown no evidence that that
was not the case. Similarly, Plaintiff has presented no evidence that Defendant’s “slow walking”
of his complaint and its fraud complaint filed against him were done in bad faith. ECF No. 69 at
25-26. Furthermore, Plaintiff's assertion that his conduct “should be seen through the facts which
would frustrate any reasonable person” is evidence that Defendant honestly believed he was being
insubordinate. ECF No. 69 at 23. Thus, it appears that there is no genuine issue of material fact
regarding these instances of Plaintiffs conduct. Rather, there is only a difference in how the parties
interpreted these events.
Plaintiff also argues that Defendant’s assertion that the packet incident rendered him
unqualified to return to his job after 23 years of service supported by exemplary evaluations
“strains credulity” and amounts to pretext. ECF No. 69 at 21. Perhaps most importantly, Plaintiff
implies that that his termination had nothing to do with the prior two instances of alleged
insubordination because he was given a full release back to work on November 27, 2017. Jd. Yet,
Defendant terminated his employment a few days later. Jd.

97

Taking these claims as true, this Court finds these arguments more persuasive. However,
Plaintiff does not deny Defendant’s allegation that he failed to appear for a meeting at City Hall
on November 29, 2017,‘ with the Fire Chief to discuss Plaintiffs conduct, thus resulting in a third
and final allegation of insubordination which supports the adverse employment action.* Because
Plaintiff's termination after three acts of insubordination is consistent with the facts and ruling in
Aldrup, Defendant had a sufficient nondiscriminatory reason for his removal. 274 F.3d at 288
(“Given the wide discretion granted to administrative agencies in disciplining their employees,
removal after three instances of insubordination [is] not arbitrary and capricious”). Moreover, the
reasoning in A/drup implies that even one act of insubordination is sufficient for termination. This
is because insubordination is a sufficient reason for taking an adverse employment action, and
termination is an adverse employment action. See Sosa v. Coastal Corp., No. 02-40639, 2002 WL
31933068, at *3 (5th Cir. 2002) (where the defendant had a legitimate nondiscriminatory reason
for terminating the plaintiff after only one act of insubordination). Like the plaintiff in Sosa,
Plaintiff has offered no evidence that Defendant’s “explanation was false, let alone pretextual.” Id.
Plaintiff therefore has failed to show that Defendant’s articulated reasons for his
termination were pretextual. Consequently, Defendant’s Motion for Summary Judgment is
GRANTED with respect to Plaintiff's retaliation claims under Title VII.

* Defendant’s HR timeline states that Plaintiff “failed to appear at City Hall as directed by Chief’ on November 30,
2017, to discuss his insubordinate behavior. See ECF No. 65 at 5, 7.
5 Insubordination also violates Defendant’s own policy, which cites Section 143.051 of the Texas Local Government
Code. See ECF No. 65-2 at 40. The statute provides that a firefighter may be removed for “discourtesy to the public
or to a fellow employee while the fire fighter or police officer is in the line of duty” and for “conduct prejudicial to
good order.” Tex. Loc. Gov’t Code Ann. § 143.051(5),(8).

28

D. Violations under the FMLA
The FMLA makes it unlawful for an employer to “interfere with, restrain, or deny the
exercise of” an employee’s FMLA rights. Downey v. Strain, 510 F.3d 534, 537 (Sth Cir. 2007)
(quoting 29 U.S.C. § 2615(a)(1)). 29 U.S.C. § 2617(a)(1) provides consequential damages and
appropriate equitable relief against employers who violate § 2615. Appropriate equitable relief for
FMLA claims may include injunctive relief. See, e.g., Crugher v. Prelesnik, 761 F.3d 610, 615
(6th Cir. 2014).
“For an employee to establish a prima facie FMLA interference claim, the employee must
show: (1) he was an eligible employee; (2) his employer was subject to FMLA requirements; (3)
he was entitled to leave; (4) he gave proper notice of his intention to take FMLA leave; and (5) his
employer denied him the benefits to which he was entitled under the FMLA.” Devoss v. Sw.
Airlines Co., 903 F.3d 487, 490 (Sth Cir. 2018) (internal quotation marks omitted) (quoting
Caldwell v. KHOU-TV, 850 F.3d 237, 245 (Sth Cir. 2017)). “To recover under the FMLA for
failure to provide individualized notice, a plaintiff must show that the employer failed to comply
with the notice requirement and that this noncompliance impaired the plaintiff's ability to exercise
her rights under the FMLA, causing prejudice.” Bernard v. Bishop Noland Episcopal Day Sch.,
630 Fed. Appx. 239 (5th Cir. 2015) (citing Downey, 510 F.3d at 541). Courts evaluating an FMLA
claim must conduct a “retrospective, case-by-case examination” that addresses “whether the
employee would have exercised his or her FMLA rights in the absence of the employer’s actions.
Downey, 510 F.3d at 540 (quoting Ragsdale v. World Wide, Inc., 535 U.S. 81, 90 (2002)).
Here, Plaintiff alleges that Defendant unlawfully and discriminatorily interfered with his
rights under the FMLA. ECF No. 60 at 11. Specifically, Plaintiff alleges that Defendant failed to
comply with the FMLA’s notice requirements and by doing so interfered with his potential exercise

9490

of those rights. ECF No. 69 at 27. Plaintiff also alleges that Defendant failed to reinstate his
employment and violated the FMLA by terminating his employment. ECF No. 60 at 11. In response,
Defendant first argues that this Court should reject Plaintiff's claims on the basis that Plaintiff's
alleged FMLA rights were preempted by two Texas statutes. ECF No. 65 at 15. Therefore, this
Court must first address this argument before it reaches Plaintiff's specific allegations.
1. FMLA Preemption
Defendant claims that since the Texas Workers Compensation Act (the “TWCA”) and the
Texas Civil Service Act (the “CSA”) provide the Plaintiff greater leave rights than the FMLA and
that Plaintiff is only pursuing his claim that Defendant interfered with his rights under the FMLA,
Defendant could not have interfered with Plaintiffs FMLA rights because those rights were
preempted by state law. Jd. Defendant cites 29 U.S.C. § 2651(b), which states that “[nJothing in this
Act or any amendment made by this Act shall be construed to supersede any provision of any State
or local law that provides greater family or medical leave rights than the rights established under this
Act or any amendment made by this Act.” ECF No. 65 at 15. Defendant also cites a 2005 advisory
opinion from the Department of Labor concluding from the FMLA’s legislative history that
Congress intended to protect more generous state laws from preemption by the FMLA. Id. at 12.
However, even granting that the relevant state law is more generous than the FMLA, it
does not follow that the state law necessarily preempts the FMLA. In logical terms, it is a fallacy
to infer the inverse from a conditional statement. For example, it does not necessarily follow from
the statement “if Socrates is a man, then Socrates is not immortal” that “if Socrates is not a man,
then Socrates is immortal.” Similarly, it does not necessarily follow from the statement “if the
federal law preempts state law, then the state law does not preempt the federal law” that “if the
federal law does not preempt the state law, then the state law preempts the federal law.” Nothing

20

in the cited statute implies that more generous state laws preempt the FMLA, and the Defendant
fails to cite any existing case law that says otherwise.
Moreover, the definition of “preemption” suggests that state laws cannot preempt federal
laws. For our purposes, “preemption” is defined as the “principle (derived from the Supremacy
Clause) that a federal law can supersede or supplant any inconsistent state law or regulation.”
PREEMPTION, BLACK’S LAW DICTIONARY (11th ed. 2019); see also Bedoya v. Am. Eagle
Express Inc., 914 F.3d 812, 817 (3d. Cir. 2019) (‘The preemption doctrine stems from the
Supremacy Clause, which provides that ‘the Laws of the United States . . “shall be the supreme
Law of the Land .. . any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.’ Thus, ‘Congress . . . has the power to preempt state law.’ There are three
categories of preemption: field preemption, conflict preemption, and express preemption”
(citations omitted)).
To illustrate how the state and federal laws interact with each other, 29 C.F.R. §
825.701(a)(1) gives the following example:
If State law provides 16 weeks of leave entitlement over two years, an employee
needing leave due to his or her own serious health condition would be entitled to
take 16 weeks one year under State law and 12 weeks the next year under FMLA.
Health benefits maintenance under FMLA would be applicable only to the first 12
weeks of leave entitlement each year. If the employee took 12 weeks the first year,
the employee would be entitled to a maximum of 12 weeks the second year under
FMLA (not 16 weeks). An employee would not be entitled to 28 weeks in one year.
In this example, the hypothetical state law is less generous than the FMLA in the sense that it
would allow only 16 weeks of leave over two years rather than the FMLA’s 12 weeks per year.
However, it is more generous in the sense that it would allow the employee to take those 16 weeks
of leave in one year while still retaining the FMLA’s 12-week entitlement for the following year.
This would result in 28 weeks of leave over two years instead of 24. In the first year where the

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employee takes 16 weeks of leave, the FMLA health benefits maintenance would still be applicable
during the first 12 weeks and not be preempted by the state law. This example makes it clear that
more generous state laws do not preempt the FMLA but rather only affect how those rights interact
with each other. See also HRS-CB § 47:40 (‘If an employer is subject to both the FMLA and
another leave law, it must comply with the provisions that provide the greatest level of protection
to employees”).
Furthermore, even if state law could preempt federal law, family or medical leave is
distinguishable from workers’ compensation. For example, the FMLA entitles eligible employees
to a total of 12 weeks of leave for reasons such as “the birth of a son or daughter,” “the placement
of a son or daughter with the employee for adoption or foster care,” to care for “the spouse, or son,
daughter, or parent of the employee if such spouse, son, daughter, or parent has a serious health
condition,” or because of “a serious health condition that makes the employee unable to perform.”
29 U.S.C. § 2612(a)(1).
The CSA leave that Defendant cites applies only to police officers and firefighters — and
only to those who are injured in the line of duty. Tex. Loc. Gov’t Code Ann. § 143.073(c)
(emphasis added). Defendant tries to cast this as more as more like the FMLA by referring to those
protected under § 143.073(c) as “civil service employees.” ECF. No. 60 at 11. Yet, it is clear the
relevant state and federal laws were enacted for different groups and for different reasons. The
FMLA regulations also anticipate that FMLA leave, which is generally unpaid, may in some
circumstances be used to supplement workers’ compensation leave. See 29 C.F.R. § 207(e) (noting
how FMLA leave may be substituted for accrued paid leave and used to supplement workers’
compensation benefits, such as in cases where the workers’ compensation only provides an
employee two-thirds of their salary).

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Defendant has also not shown that the CSA is more generous than the FMLA in its notice
requirements or in its remedies. Compare 29 U.S.C. § 2617 (entitling an eligible employee to lost
wages with interest, lost employment benefits, and appropriate equitable relief such as promotion),
with Tex. Lab. Code Ann. § 451.002 (entitling an eligible employee only to reinstatement and
“reasonable damages”). It is true that the relevant section of the CSA provides up to a year of fully
paid leave of absence rather than 12 weeks. However, it is unclear from Defendant’s motion why
the length of leave and whether it is paid or unpaid should be dispositive as to whether the CSA is
more generous than the FMLA. Plaintiff's argument that Defendant violated the FMLA is
specifically that Defendant allegedly failed to provide the required notice of his rights for the

purpose of interfering with those rights. ECF No. 60 at 11. Hence, Defendant’s cited provisions of
the state law being more generous by granting longer, fully paid leave are not especially relevant.
It is equally unclear as to whether portions of the CSA and the TWCA can be amalgamated
together to become greater than or more generous than the FMLA to support Defendant’s
preemption argument.

In sum, the CSA and the TWCA are more generous than the FMLA in some respects but
not in others. However, they are not more generous in any relevant manner. And even if the state
law is more generous than the FMLA, the appropriate or applicable provisions of the FMLA are
still not preempted by state law. Instead, the state law only affects how the state and federal laws
interact with each other to allow for the greatest level of entitlements permitted by the regulations.
The state law does not preempt the FMLA altogether to prevent Plaintiff from pursuing FMLA
claims.

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2. FMLA Notice
To establish a prima facie FMLA interference claim, Plaintiff must show that “he gave
proper notice of his intention to take FMLA leave.” Devoss, 903 F.3d at 490. “When an employee
requests FMLA leave, or when an employer acquires knowledge that an employee’s leave may be
for an FMLA-qualifying reason, the employer must notify the employee of his eligibility.” 29
C.F.R. § 825.300(b)(1) (emphasis added). The employer is “responsible in all circumstances for
designating leave as FMLA—qualifying, and for giving notice of the designation to the employee
as provided in this section.” 29 C.F.R. § 825.300(d)(1).
The Fifth Circuit has held that these individualized notice regulations “are not arbitrary,
capricious, or manifestly contrary to the FMLA and are valid.” Downey, 510 F.3d at 542; see also
Ragsdale, 535 U.S. at 88 (“According to the Secretary [of Labor], the more comprehensive and
individualized notice required by the regulations is necessary to ensure that employees are aware
of their rights when they take leave.”). “When an employee seeks leave for the first time for a
FMLA—qualifying reason, the employee need not expressly assert rights under the FMLA or even
mention the FMLA.” 29 C.F.R. § 825.302(c). “Employees are not required to designate whether
the leave they are taking is FMLA leave or leave under State law, and an employer must comply
with the appropriate (applicable) provisions of both.” 29 C.F.R. § 825.701 (a).
Here, Defendant argues that it protected Plaintiff's rights by not running his FMLA
concurrently with the medical leave provided by CSA. ECF No. 65 at 17. Next, Defendant argues
that Plaintiff failed to give the required notice. ECF No. 65 at 18. In other words, Defendant argues
that even if Plaintiff were entitled to FMLA leave, Defendant did not interfere with his FMLA
rights by not providing him with individualized notice of his FMLA rights. This is because he
never gave notice that he intended to exercise those rights. ECF No. 65 at 17.

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Defendant cites Acker v. GM, L.L.C., 853 F.3d 784, 788-89 (5th Cir. 2017) to support its
argument that an employee must give notice. ECF No. 65 at 18. Defendant directly quotes Acker
as saying an “employee must give employer notice of his intention to take [FMLA leave] in order
to be entitled to it, even when the need for leave is unforeseeable.” Jd. This is a misquotation. The
latter half of the sentence above comes from a different paragraph that states, “[e]ven when an
employee’s need for leave is unforeseeable, the regulations make clear the employee’s duty to
comply with the employer’s policy.” Acker, 853 F.3d at 789 (citing 29 C.F.R. § 825.303(c)). The
cited regulation provides instances where an employee’s notice might be delayed, or advance
notice may not be required:
When the need for leave is not foreseeable, an employee must comply with the
employer’s usual and customary notice and procedural requirements for requesting
leave, absent unusual circumstances. For example, an employer may require
employees to call a designated number or a specific individual to request leave.
However, if an employee requires emergency medical treatment, he or she would
not be required to follow the call-in procedure until his or her condition is stabilized
and he or she has access to, and is able to use, a phone. Similarly, in the case of an
emergency requiring leave because of a FMLA—qualifying reason, written advance
notice pursuant to an employer's internal rules and procedures may not be required
when FMLA leave is involved.
Here, Defendant’s confused citation to the FMLA “‘foreseeability” standards is largely
irrelevant for two reasons. First, the record suggests that Plaintiff did request leave in some manner.
In his Second Amended Complaint, Plaintiff alleges that he requested medical care, instituted a
worker’s compensation claim on May 15, 2017, and took medical leave for various treatments.
ECF No. 60 at 5. Defendant acknowledges that Plaintiff complained of hearing loss and other
medical problems and was immediately placed on leave on the same date. ECF No. 65 at 6.
Plaintiff did not need to mention the FMLA at the time. Thus, because Plaintiff requested leave
and Defendant had knowledge that it was for a FMLA-qualifying reason, Defendant was on

35

constructive notice. Second, Defendant has not shown that Plaintiff failed to comply with
Defendant’s own customary notice and procedural requirements for requesting leave. See, e.g.,
Acker, 853 F.3d at 789 (where the plaintiff failed to comply with his employer’s procedure when
he failed to call in 30 minutes before his shift began prior to his absence).
Finally, Defendant argues that Plaintiff was given notice of his FMLA rights by being given
an employee handbook that all employees were responsible for reading. ECF No. 72 at 17. This
argument fails because it fails to distinguish the proper notice requirements as set forth in 29 C.F.R.
§ 825.304(a) with the individualized eligibility notice required by § 825.300(b)(1) and held by the
Fifth Circuit as valid and enforceable. Furthermore, Defendant appears to concede that it had
knowledge that Plaintiff's leave was for a FMLA-qualifying reason. This is because Defendant
argues that it could have placed Plaintiff on FMLA leave and protected Plaintiff's FMLA leave by
not running it concurrently with his CSA leave. ECF No. 65 at 18.
Because Defendant had knowledge that Plaintiff's leave was for a FMLA-qualifying
reason, Defendant was required to give individualized notice of his eligibility. Thus, Plaintiffs
lack of notice of his intention to take FMLA leave does not defeat his FMLA claim.
3. Whether Plaintiff Was Qualified for FMLA Leave
Eligible employees under the FMLA are entitled to take leave “because of a serious health
condition that makes the employee unable to perform the functions of the position of such
employee.” 29 U.S.C. § 2612(a)(1)(D). The FMLA defines the term “serious health condition” as
an “illness, injury, impairment, or physical or mental condition” that involves “inpatient care in a
hospital, hospice, or residential medical care facility” or “continuing treatment by a health care
provider.” 29 U.S.C. § 2611(11). A serious health condition involving continuing treatment by a
health care provider involves both “incapacity” of “more than three consecutive, full calendar

3 CO”

days,” and “any subsequent treatment or period of incapacity relating to the same condition.” 29
C.F.R. § 825.115(a). “Incapacity” is defined as an “inability to work, attend school or perform
other regular daily activities due to the serious health condition, treatment therefore, or recovery
therefrom.” 29 C.F.R. § 113(b). Subsequent treatment must involve:
(1) Treatment two or more times, within 30 days of the first day of incapacity,
unless extenuating circumstances exist, by a health care provider, by a nurse under
direct supervision of a health care provider, or by a provider of health care services
(e.g., physical therapist) under orders of, or on referral by, a health care provider;
or
(2) Treatment by a health care provider on at least one occasion, which results in a
regimen of continuing treatment under the supervision of the health care provider.
29 C.F.R. § 825.115(a). Here, Defendant argues that Plaintiff failed to present evidence that he
was qualified to seek FMLA leave by failing to show he had a serious health condition which
prevented him from going to work. ECF No. 72 at 18. The Court is unpersuaded by this argument
for two reasons. First, the Court notes that this is inconsistent with Defendant’s earlier argument
when it reasoned that it protected Plaintiff's FMLA rights by not running them concurrently with
his CSA leave. Supra at 33. This is because Defendant could not have run Plaintiff's FMLA leave
concurrent with his CSA leave if he were not qualified to seek FMLA leave.
Second, Plaintiff's injury qualifies as a serious health condition, of which the Defendant
had knowledge. Plaintiff reported to his supervisors that he was having trouble hearing and could
not sleep. ECF No. 60 at 5. He was driven to a hospital by one of his supervisors for treatment. Jd.
Plaintiff was and continues to be treated for his injuries. Jd. Defendant acknowledges that Plaintiff
complained of hearing loss and other medical problems and that it his physician did not release
him to return to light-duty work until six months later. ECF No. 65 at 6.

37

Defendant cites to Mauder v. Metro. Transit Auth. of Harris Cty., Tex., 446 F.3d 574, 582
(5th Cir. 2006) in support of its argument that an employer is not accountable unless an employee
provides his employer with information needed to process potentially qualifying leave. ECF No.
72 at 19. On this issue, this case only affirms what is stated in 29 U.S.C. § 2613 — that an employer
may require that an employee’s leave request be supported by a certification from the employee’s
health care provider. The statute does not say that an employee’s leave request must be supported
by a certification of his health care provider absent of an employer having this requirement.
Defendant has also not shown that it did require more information from Plaintiff or that Plaintiff
refused to comply with these requirements.
The Court therefore FINDS that Plaintiff has made a prima facie showing of being
qualified for FMLA leave. Subsequently, Defendant’s lack of providing Plaintiff notice of his
FMLA rights constitutes interference with his FMLA rights.
4. No Relief unless Prejudiced by the Violation
Finally, even if Plaintiff can prove interference, restraint, or denial of the exercise of FMLA
rights, there can be no relief unless the employee has been prejudiced by the violation. See
Ragsdale, 535 U.S. at 89 (“[29 U.S.C.] § 2617 provides no relief unless the employee has been
prejudiced by the violation: The employer is liable only for compensation and benefits lost by
reason of the violation, for other monetary losses sustained as a direct result of the violation, and
for appropriate equitable relief, including employment, reinstatement, and promotion.” (cleaned
up)). “FMLA’s remedial scheme requires an employee to prove prejudice as a result of the
employer’s lapse; the employee may not expand the statute’s coverage as a penalty for an
employer’s technical compliance shortcoming.” Lubke v. City of Arlington, 455 F.3d 489, 497 (Sth
Cir. 2006).

. ag

The Fifth Circuit has examined this issue several times, and in each case its ruling turned
on whether the FMLA interference somehow caused an employee’s termination. In Lubke, the
plaintiffs jury verdict was affirmed because the lack of notice led to a lack of medical certification
and the loss of a job. Id. at 498. In Downey, the plaintiff “proved that she was actually prejudiced
by her employer’s noncompliance with the regulations: had she received individualized notice, she
would have been able to postpone her surgery . . . and her position . . . would not have been
jeopardized.” 510 F.3d at 541.
However, in Bernard, the Fifth Circuit reasoned that “the lack of individualized notice had
nothing to do with [the plaintiff] not taking leave or losing her job.” 630 Fed. Appx. at 243. The
Fifth Circuit observed that the plaintiff was aware of her employer’s more generous leave program
and had participated in it and that she returned to work before exhausting her leave under the
program despite knowing she could have taken more partially paid time off. Jd. The Fifth Circuit
concluded that nothing suggested that the plaintiff would have taken additional leave if she had
known that she had a right to medical leave under the FMLA and that she therefore was not
prejudiced by her employer’s lack of notice. Jd. And in Hart v. Comcast of Houston, LLC, 347
Fed. Appx. 978, 980 (Sth Cir. 2009), the Fifth Circuit held that the plaintiff was not harmed by any
lack of notice. This is because the evidence showed that the employee was allowed his requested
leave and to return to the same position with the same pay and was fired for failing to return to
work.
Here, Plaintiff alleged in his Second Amended Complaint that Defendant’s conduct
justified an award for back pay, front pay, interest, special damages, and all other remedies
available at law and equity. ECF No. 60 at 11. However, he stated in his response to Defendant’s
Motion for Summary Judgment that he is “merely seeking injunctive relief against the Defendant

39

to ensure that Defendant complies with these requirements in the future.” ECF No. 69 at 29. In
either case, Plaintiff must show that he was prejudiced by Defendant’s lack of individualized notice
of his FMLA rights. Defendant argues in response that Plaintiff has not pled or demonstrated any
prejudice, nor shown that he was harmed by not being placed on FMLA leave running concurrently
with his leave under state law. ECF No. 65 at 20.
Plaintiff does briefly address this question in noting that FMLA regulations include the
right to decline light-duty assignments and remain on unpaid FMLA leave when used to
supplement workers’ compensation. ECF No. 69 at 28 (citing 29 C.F.R. § 825.207(e)). In other
words, had Plaintiff been given notice of his FMLA rights, he might have used them to decline his
return to light-duty. However, Plaintiff makes no showing that he would have declined his light-
duty assignment and chosen to remain on unpaid leave. And even if he would have, the record
suggests that his return to light-duty had nothing to do with his termination. Plaintiff returned to
light-duty on November 13, 2017, and was not terminated until over two weeks later — after being
placed on leave a second time and being given a full release back to work. See ECF Nos. 60 at 6,
69 at 21. Nothing in the record suggests that he had returned to light-duty with a lower position or
a lower pay. It is true that two of the alleged incidents of insubordination which Defendant cites
as the ultimate reason for his termination occurred while he was still on light-duty. However, there
is no indication that the “packet incident” would not have inevitably occurred on a later date. The
documents were “a random collection of various policies and procedures which had nothing to do
with light duty.” ECF No. 60 at 15.
Because Plaintiff has failed to show that he was prejudiced by Defendant’s lack of notice,
the Court therefore FINDS that his claim of FMLA interference fails. Accordingly, Defendant’s
Motion for Summary Judgement is GRANTED with respect to Plaintiff's claims under the FMLA.

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IV. CONCLUSION
For the foregoing reasons, the Court concludes that Defendant is entitled to summary
judgment on all of Plaintiff's claims in his Second Amended Complaint. It is therefore ORDERED
that Defendant’s Motion for Summary Judgment (ECF No. 65) is GRANTED in its entirety and
with respect to all of the aforementioned claims.
SO ORDERED.
July 7020. YH ie Y

MAYTHEW J. KACSMARYK
UMTED STATES DISTRICT JUDGE

4)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10448779. Public record. Not legal advice.