# Trevino

> District Court, W.D. Louisiana · January 23, 2026

URL: https://www.frixlaw.com/law-library/cases/11245837

## Case

- **Full name:** Kevin Michael Trevino v. Waste Management of Louisiana, LLC
- **Court:** District Court, W.D. Louisiana
- **Decided:** January 23, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYATTE DIVISION

KEVIN MICHAEL TREVINO CIVIL DOCKET NO. 6:24-CV-01246

VERSUS JUDGE DAVID C. JOSEPH

WASTE MANAGEMENT OF MAGISTRATE JUDGE DAVID J. AYO
LOUISIANA, LLC

MEMORANDUM RULING
Before the Court is a MOTION FOR SUMMARY JUDGMENT (the “Motion”) filed by
Defendant Waste Management of Louisiana, LLC (hereinafter, “Defendant”).
[Doc. 17]. Plaintiff Kevin Trevino (hereinafter, “Plaintiff”) filed an Opposition on
December 11, 2025, to which Defendant filed a Reply on December 22, 2025.
[Docs. 22, 27]. For the following reasons, the Motion is GRANTED IN PART and
DENIED IN PART.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This lawsuit arises from Defendant terminating the employment of Plaintiff
Kevin Trevino on August 5, 2022. [Doc. 1]. Plaintiff worked at the Defendant’s
Harvey, Louisiana, facility from March 2017 until his termination, where he was a
union employee covered by a collective bargaining agreement. [Doc. 22-2]; [Doc. 22- 3].
At all relevant times, Plaintiff held the position of Container Technician – a job in
which he routinely performed at least some welding. [Doc. 17-2, p. 4].
In April 2022, Plaintiff received a conditional job offer from another company,
contingent upon passing a physical examination. [Id., pp. 47–49, 165–67]. This
examination revealed a heart murmur, leading to a medical hold. [Id., pp. 167– 68].
Plaintiff subsequently requested and was granted medical leave by Defendant to have
a pacemaker installed, with the condition that Plaintiff provide a doctor’s note stating
when he could return to work. [Id., pp. 13–14]. Plaintiff underwent the pacemaker
procedure on May 26, 2022, after which he notified his supervisor that, because of the
pacemaker, he could no longer weld or work on trucks. [Id., pp. 16, 22]. Plaintiff then

inquired about an alternative role as a diesel technician. [Id., p. 22].
On July 6, 2022, Plaintiff emailed Austin Horne (hereinafter, “Horne”), an HR
representative of Defendant, stating that he was ready to return to work. [Id., p. 74].
In that communication, Plaintiff provided a note from his cardiologist clearing him
for work and attached a document, “Your Guide to Understanding Pacemakers,”
underlining a section warning against exposure to high-voltage machinery, arc

welders, and large running gasoline motors. [Id., pp. 75–76]. Two days later, in
response to Plaintiff’s discussion about returning, Horne requested additional
information on Plaintiff’s specific medical restrictions. [Id., p. 108]. Plaintiff then
supplied further documentation cautioning against proximity to welding, running
gasoline engines, jumper cables, and power tools. [Id., pp. 156–60].
Defendant contends it attempted to accommodate Plaintiff by searching for a
technician or technician assistant position restricted to diesel engines but found no

vacant positions for which Plaintiff was qualified. [Doc. 17-3, pp. 40–41]. Defendant
asserts that, as a result, it was compelled to terminate Plaintiff’s employment on
August 5, 2022. [Doc. 22-7].
Plaintiff filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) on November 4, 2022, and alleged that Defendant terminated him in
violation of the Americans with Disabilities Act (“ADA”). [Doc. 17-2, p. 170]. Plaintiff
asserts that he received a Notice of Right to Sue letter from the EEOC on June 14,
2024.1 [Doc. 1, ¶ 4]. Plaintiff then filed suit in this Court on September 10, 2024,
and alleged: (i) disability discrimination in violation of the Louisiana Employment
Discrimination Law (“LEDL”) and the ADA; (ii) retaliation in violation of the ADA;

(iii) failure to accommodate in violation of the LEDL; and (iv) interference and
retaliation under the Family Medical and Leave Act (“FMLA”). [Doc. 1, ¶¶ 28–63].
Defendant filed the instant Motion on November 5, 2025, arguing that: (i)
Plaintiff’s LEDL claims are prescribed; (ii) Plaintiff cannot prove his ADA claims; and
(iii) Plaintiff’s FMLA claims are time-barred. [Doc. 17]. In his Opposition, Plaintiff
chose to withdraw his LEDL claims and his FMLA interference claim, but not his

FMLA retaliation claim.2 [Doc. 22]. As to his ADA claims, Plaintiff argued that
genuine disputes of material fact exist such that a reasonable jury could return a
verdict in favor of the Plaintiff. [Id.]. All issues having been briefed by the parties,
the Motion is ripe for ruling.
SUMMARY JUDGMENT STANDARD
A court should grant a motion for summary judgment when the pleadings,
including the opposing party’s affidavits, “show[] that there is no dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). A genuine

1 Although Plaintiff has not provided this Court with a copy of the Notice of Right to
Sue letter, Defendant does not challenge this letter’s existence. See [Doc., 17-1, p. 13].

2 Because Plaintiff withdrew his LEDL and FMLA interference claims, this Court will
not address them.
dispute of material fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Hefren v. McDermott, Inc., 820 F.3d 767,
771 (5th Cir. 2016), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is “material” if proof of its existence or nonexistence would affect the outcome
of the lawsuit under applicable law in the case. Anderson, 477 U.S. 242.

The movant bears the burden of demonstrating the absence of a genuine
dispute of material fact but need not negate every element of the nonmovant’s claim.
Hongo v. Goodwin, 781 F. App’x 357, 359 (5th Cir. 2019), citing Duffie v. United
States, 600 F.3d 362, 371 (5th Cir. 2010). If the movant meets this burden, the burden
then shifts to the nonmovant who is required to “identify specific evidence in the
record and articulate the manner in which that evidence supports that party’s claim.”

Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301
(5th Cir. 2004). However, summary judgment cannot be defeated through
“[c]onclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation.” Acker v. Gen. Motors,
L.L.C., 853 F.3d 784, 788 (5th Cir. 2017), quoting Oliver v. Scott, 276 F.3d 736, 744
(5th Cir. 2002).
In applying this standard, the Court should construe “all facts and inferences

in favor of the nonmoving party.” Deshotel v. Wal-Mart Louisiana, L.L.C., 850 F.3d
742, 745 (5th Cir. 2017); see also Anderson, 477 U.S. at 255 (“The evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in his favor.”).
The motion for summary judgment should be granted if the non-moving party cannot
produce sufficient competent evidence to support an essential element of its claim.
Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005). However, when
the relevant facts are undisputed, the court “need only decide whether those
undisputed facts ... entitle the movant to judgment as a matter of law.” Flowers v.
Deutsche Bank Nat’l Tr. Co., 614 F. App’x 214, 215 (5th Cir. 2015).
LAW AND ANALYSIS
I. ADA Discrimination

First, Plaintiff alleges that he was discriminated against based upon his
alleged disability – his heart condition – in violation of the ADA.3 In its Motion,
Defendant argues that Plaintiff is not disabled within the meaning of the ADA
because he has not pled or otherwise identified any major life activity that is
substantially limited by his purported disability. [Doc. 17-1, pp. 16–17]. In addition,
Defendant argues that Plaintiff is not disabled because he can still work a broad class

of jobs. [Id., pp. 17–18]. Plaintiff responds that his heart condition does constitute
an actual disability under the ADA and that Defendant is relying on case law decided
prior to the Americans with Disabilities Act Amendments Act (“ADAAA”) when
interpreting the “broad class of jobs” issue. [Doc. 22, pp. 6–9].
Alternatively, Defendant contends that Plaintiff was unqualified for the
Container Technician role due to his welding restrictions, while Plaintiff argues that
the issue of whether welding was an essential function of the job presents a genuine

dispute of material fact and is a question for the jury. [Doc.17-1, pp. 18–21]; [Doc. 22,

3 As Defendant notes, Plaintiff did not plead a failure-to-accommodate claim under the
ADA. See generally [Doc. 1, ¶¶ 36–45]; [Doc. 17-1, p. 20]. Although Plaintiff did plead a
failure-to-accommodate claim under the LEDL, Plaintiff withdrew his LEDL claims.
[Doc. 22, p. 16]. Thus, the Court will constrain its analysis to Plaintiff’s claim of disability
discrimination.
pp. 9–12]. Plaintiff further argues that if welding was not an essential duty, then
omitting it would have been a reasonable accommodation. [Doc. 22, pp. 9–12].
Thus, according to Plaintiff, the legitimacy of Defendant’s non-discriminatory
reason – that there was no vacant position for which Plaintiff was qualified – turns
on whether welding was essential to Plaintiff’s role and if Plaintiff remained qualified

despite his medical restrictions. [Id., pp. 13–14]. If a jury concludes welding was not
essential, then Plaintiff could be viewed as qualified, and the ADA may prohibit
Plaintiff’s termination on that basis. [Id.].
A. Prima Facie Case
The ADA prohibits covered employers from “discriminat[ing] against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). ADA

discrimination claims without direct evidence are governed under the McDonnell
Douglas burden-shifting framework.4 McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d
276, 279–80 (5th Cir. 2000).
Under this framework, a plaintiff makes a prima facie showing of
discrimination by establishing that he: (i) is disabled or regarded as disabled; (ii) is
qualified for the job; and (iii) was subject to an adverse employment action on account
of his disability. Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th

Cir. 2016). Once this prima facie showing is made, “the burden then shifts to the
defendant-employer to articulate a legitimate, non-discriminatory reason for the
adverse employment action.” McInnis, 207 F.3d at 280. And “[o]nce the employer

4 “Direct evidence is evidence which, if believed, proves the fact of intentional
discrimination without inference or presumption.” Brown v. E. Miss. Elec. Power Ass’n, 989
F.2d 858, 861 (5th Cir. 1993).
articulates such a reason, the burden then shifts back upon the plaintiff to establish
by a preponderance of the evidence that the articulated reason was merely a pretext
for unlawful discrimination.” Id., citing Daigle v. Liberty Life Ins. Co., 70 F.3d 394,
396 (5th Cir. 1995).
The parties do not dispute the third element of a prima facie case of

discrimination because Plaintiff was terminated from his position. See generally
[Doc. 17-1]; [Doc. 22]; [Doc. 27]. Thus, this Court will only consider the first two prima
facie elements, whether Plaintiff was disabled for ADA purposes and whether he was
qualified for the Container Technician position.
1. Disability5
“A plaintiff satisfies the actual disability standard [of the ADA] by showing

[]he has ‘a physical or mental impairment that substantially limits one or more major
life activities.’” Williams v. Tarrant Cnty. Coll. Dist., 717 F. App’x 440, 446 (5th Cir.
2018), citing 42 U.S.C. § 12102(1)(A). “Major life activities include, but are not limited
to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
[and] walking.” Id., citing 42 U.S.C. § 12102(2)(A).
And the EEOC in its implementing regulations defines one or more major life
activities as including the normal operation of major bodily functions, such as the

cardiovascular system. 29 C.F.R. § 1630.2(g)(1)(i), (h)(1), (i)(1)(ii). The EEOC
regulations further state that the “substantially limits” standard is not to be

5 The Court notes that Plaintiff’s argument does not rest on a contention that the
Defendant regarded him as disabled, but rather that his heart condition and subsequent
pacemaker installation render him actually disabled for ADA purposes. See generally
[Doc. 22].
construed as a demanding standard – requiring only comparisons to the general
population rather than scientific analysis. See Williams, 717 F. App’x at 446, citing
29 C.F.R. § 1630.2(j)(1)(v); see also 29 C.F.R. § 1630.2(j)(1)(i).
In this case, Defendant concedes that Plaintiff has an impairment –
hypertrophic cardiomyopathy – but instead argues that Plaintiff has not

demonstrated a major life activity substantially limited by the condition and cannot
support his position beyond his own affidavit. [Doc. 27, pp. 1–2]. The record,
however, contains: (i) email exchanges between Plaintiff and Horne referencing
Plaintiff’s heart impairment; (ii) restrictions provided by Plaintiff’s medical provider
cautioning against proximity to welding equipment or gasoline engines; and (iii) a
cardiologist’s letter outlining the implanted pacemaker and associated

restrictions. [Doc. 17-2, pp. 103–113, 156–160]. Together, and construing all facts in
Plaintiff’s favor, this provides sufficient evidence of Plaintiff’s impairment in
performing manual tasks or in the normal operation of his cardiovascular system for
a reasonable jury to conclude that Plaintiff is disabled under the ADA.6
2. Qualifications
The Defendant next argues that Plaintiff was not qualified for the Container
Technician position due to his inability to weld, which Defendant claims is an

essential job function. [Doc. 17-1, pp. 18–21]. Plaintiff contests that welding was

6 In fact, Defendant’s termination letter itself refers to “permanent restrictions
preventing [Plaintiff] from working near welding equipment,” providing further support for
Plaintiff’s argument that his heart condition renders him actually disabled under the ADA.
[Doc. 22-7].
required for the job and contends it is a factual issue that should be decided by the
jury. [Doc. 22, pp. 9–12].
“To be a qualified employee, [a plaintiff] must be able to show that he could
either (1) ‘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 his job.’” Cannon, 813 F.3d at 592, citing EEOC v.
LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014). “A function is ‘essential’ if it bears
‘more than a marginal relationship’ to the employee’s job.” Id., citing Chandler v.
City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993).
In short, the law requires consideration of, among other things, the employer’s
judgment, written job descriptions, and terms of a collective bargaining agreement to

determine essential functions.7 Credeur v. La. Off. of the Attorney Gen., 860 F.3d 785,
792 (5th Cir. 2017; 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n)(3)). Defendant points
to its own perspective and deposition testimony, while Plaintiff relies on job

7 Defendant relies upon Credeur v. La. Off. of the Attorney Gen., 860 F.3d 785, 792 (5th
Cir. 2017), for the proposition that the greatest weight is given to the employer’s judgment
in considering an essential job function. [Doc. 17-1, p. 20]. Although this is true, the Credeur
Court also discussed other evidence that must be considered under statute, such as a written
job description. Credeur, 860 F.3d at 792.

Specifically, the Fifth Circuit in Credeur looked to 42 U.S.C. § 12111(8), which provides that:
“… consideration shall be given to the employer’s judgment as to what functions of a job are
essential, and if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered evidence of the
essential functions of the job.” Id.; 42 U.S.C. § 12111(8) (emphasis added). Furthermore, both
Plaintiff and the Credeur Court look to an EEOC regulation that states that a written job
description prepared before advertising or interviewing applicants for the job, the amount of
time spent on the job performing the function, and the terms of a collective bargaining
agreement are all non-exhaustive factors that may guide the essential function inquiry.
Credeur, 860 F.3d at 792; 29 C.F.R. § 1630.2(n)(3); [Doc. 22, p. 11].
descriptions and the collective bargaining agreement. [Doc. 17-1, p. 20]; [Doc. 22-5,
pp. 49–57].
Specifically, the written job description for the Container Technician position
does not explicitly list welding as an essential function. [Doc. 17-2, pp. 151–52]. In
contrast, other roles within the company, such as the “Welder – Container” job

description, specifically identifies welding as an essential duty. [Doc. 17-2, pp. 154–
55]. Likewise, the Defendant’s collective bargaining agreement and pay rates
differentiate the roles. [Doc. 22-3, p. 9]; [Doc. 22-8]. Additionally, the Defendant’s
own termination letter states Plaintiff was terminated as a Container Technician,
not a Welder. [Doc. 22-7]. The record also contains deposition testimony
acknowledging that the Container Technician job description does not contain a

welding requirement. [Doc. 22-5, pp. 49–57]. Based on this evidence, there are
genuine factual disputes as to whether welding is essential to the Container
Technician role.
B. Defendant’s Nonretaliatory Justification
Defendant claims its legitimate, non-discriminatory reason for terminating
Plaintiff is that no vacant positions for which Plaintiff was qualified were available
that also would have accommodated Plaintiff’s pacemaker-related restrictions.

[Doc. 17-1, pp. 24–26]. Plaintiff responds that Defendant’s justification depends on
welding being an essential job function; if it is not, then Plaintiff could have remained
in his role without welding. [Doc. 22, pp. 13–14]. Plaintiff relies heavily on Cannon,
813 F.3d 586, to support his argument. [Id.].
In Cannon, the plaintiff-employee’s job offer was revoked because the
defendant-employer believed that the plaintiff’s shoulder injury prevented him from
climbing ladders or driving company vehicles, which the defendant argued was an
essential function of the position. 813 F.3d at 588–89. The Cannon Court found that
genuine disputes of material fact existed as to whether the plaintiff was qualified for

the position because there was conflicting summary judgment evidence regarding
whether plaintiff could perform the position’s essential functions. Id. at 592–93.
Similarly here, if a jury finds that Plaintiff cannot perform the essential
functions of a Container Technician because of his heart condition, then Defendant
“has offered a lawful reason for its decision.”8 See id. But if the jury instead finds
that Plaintiff is disabled but still qualified to work as a Container Technician because

welding is not an essential function, then Defendant’s termination of Plaintiff
because of his physical impairment “constitute[s] the discrimination that the ADA
forbids.” See id. At bottom, because there is evidence and testimony that creates a
factual question as to whether welding is an essential component of Plaintiff’s job,
summary judgment is not appropriate on Plaintiff’s ADA discrimination claim.

8 The Fifth Circuit held in Cannon that the defendant’s reasoning for rescinding
Plaintiff’s job offer created a genuine dispute of material fact because:

If [the defendant] convinces a jury that [the plaintiff] cannot perform essential
functions of the job because of the injury, then it has offered a lawful reason
for its decision. But if the jury credits the evidence we have cited favoring [the
plaintiff] and concludes he was disabled, yet still qualified to be a field
engineer, then revoking [plaintiff’s] job offer based on his physical impairment
would have constituted the discrimination that the ADA forbids.

Id.
II. ADA Retaliation
Defendant next argues that Plaintiff’s ADA retaliation claim should be
dismissed because Plaintiff: (i) failed to exhaust his administrative remedies as to his
retaliation claim; and (ii) cannot establish the third element of his prima facie case,
i.e., that there was a causal connection between the protected activity and the adverse

employment action.9 [Id.].
A. Exhaustion of Administrative Remedies
Before initiating suit for a violation of the ADA, plaintiffs must exhaust their
administrative remedies by filing a charge with the EEOC.10 Williams, 717 F. App’x
at 445. “ADA … claims are properly raised in federal court only when they are within
the scope of the … investigation which can reasonably be expected to grow out of the

[administrative] charge of discrimination,” and “[f]ailure to exhaust is grounds for
dismissal.” Id. (internal quotation marks omitted).
But although the Fifth Circuit “strictly construes the exhaustion requirement,
it views administrative charges in the ‘broadest reasonable sense.’” Id., citing
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 467 (5th Cir. 1970). This is
“[b]ecause administrative charges are rarely drawn by attorney[s].” Id. So, a plaintiff
is not required to “check a certain box or recite a specific incantation to exhaust” his

administrative remedies. Id. Simply put, “the scope of an EEOC charge should be

9 The Court notes that Plaintiff failed to address any of Defendant’s arguments in his
Opposition with respect to Plaintiff’s ADA retaliation claim. See generally [Doc 22]. In spite
of this, the Court will nevertheless address the merits of Defendant’s contentions.

10 Defendant does not contend that Plaintiff failed to exhaust his administrative
remedies as to his ADA discrimination claim. See generally [Doc. 17-1].
liberally construed for litigation purposes…” Parker v. State of La. Dep’t of Educ.
Special Sch. Dist., 323 F. App’x 321, 329 (5th Cir. 2009).
Here, Defendant asks this Court to narrowly and strictly construe Plaintiff’s
EEOC charge. See [Doc. 17-1, pp. 26–27]. Specifically, Defendant argues that
Plaintiff’s EEOC “charge states his discrimination claim is only based on ‘Disability’

and his particulars only complain about disability discrimination. There is no whiff
of a retaliation claim.” [Id., p. 27].
In his EEOC charge, Plaintiff stated that he “believe[d] [he] was discriminated
against based on his disability,” and that he “discussed the possibility of
accommodating [him] to work as a diesel mechanic.”11 [Doc. 17-2, p. 170]. Read
liberally, Plaintiff’s EEOC charge encompasses the contention that his termination

flowed from his medical restrictions and discussion of possible accommodations. [Id.].

11 The entirety of the factual allegations contained in Plaintiff’s EEOC charge are as
follows:

I began working with Waste Management on March 7, 2017 as a
welder/technician. I believe I was discriminated against based on my
disability. On April 25, 2022 I had an ICD Implant placed to deal with some
cardiac health related problems. Two weeks later, during a meeting with
Regional Manager and Supervisor we discussed the possibility of
accommodating me to work as a diesel mechanic. Due to the fact that I would
no longer be able to work as a welder due to the ICD Implant. On July 7th I
was cleared by my cardiologist to go back to work. Waste Management
requested more detailed medical documentation. The documentation was
provided on July 21, 2022. I was awaiting the results from the company doctor
when I was terminated on August 4, 2022. Termination letter stated there
wasn[’]t a position near your location available, however, I did tell the company
that I was willing to relocate. The company employs over 500 employees. I
believe I was discriminated against in violation of the Americans with
Disabilities Act of 1990, as amended.

[Doc. 17-2, p. 170].
Because this Court refuses to “cut off [a party’s rights] merely because he fails to
articulate correctly the legal conclusion emanating from his factual allegations,” this
Court finds that Plaintiff successfully exhausted his administrative remedies as to
his ADA retaliation claim. Sanchez, 431 F.2d at 462.
B. Prima Facie Case

Defendant also seeks summary judgment on Plaintiff’s ADA retaliation claim
on the merits. Here, the parties only contest the third prima facie element of a
retaliation claim – whether there was a causal connection between Plaintiff’s
protected activity and the adverse employment action.12
Without direct evidence of retaliation, a plaintiff’s retaliation claim is governed
by the McDonnell Douglas burden-shifting framework. Feist v. La. Dept. of Justice,

Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013). Under McDonnell Douglas,
a plaintiff makes a prima facie case of retaliation by establishing that: (i) the plaintiff
engaged in an activity protected by statute; (ii) his employer took an adverse
employment action against him; and (iii) a causal connection exists between the
protected activity and the adverse action. McKinney v. Sheriffs Off. Rapides Par.,
2021 WL 1083979, at *10 (W.D. La. Mar. 19, 2021), citing Feist, 730 F.3d at 454.
Relevant here, a prima facie retaliation claim requires that “a causal

connection exists between the protected activity and the adverse [employment]
action.” Aguillard v. Louisiana Coll., 824 F. App’x 248, 251 (5th Cir. 2020). Close

12 Plaintiff’s protected activity here was requesting that the Defendant no longer require
him to weld to accommodate his heart condition. [Doc. 17-2, p. 20]. Requesting a reasonable
accommodation for a disability can constitute protected activity. Jenkins v. Cleco Power,
LLC, 487 F.3d 309, 317 (5th Cir. 2007). And the parties do not dispute that Plaintiff’s
termination constitutes an adverse employment action. [Doc. 22-7].
timing between an employee’s protected activity and an adverse employment action
can be sufficient evidence of causality so long as the temporal proximity is “very
close.” Id.; see also Feist, 730 F.3d at 454 (“While a four-month gap may be sufficient
evidence of causation, a five-month gap is too long absent other evidence.”). In fact,
the Fifth Circuit has “repeatedly held [that] periods of a few months [are] sufficient

to satisfy causation in a prima facie case.” January v. City of Huntsville, 74 F.4th
646, 653 (5th Cir. 2023).
Here, Plaintiff can establish a prima facie case of causation based on temporal
proximity alone. Defendant admits that Plaintiff requested an accommodation on
July 6, 2022, which is the date the interactive process to accommodate Plaintiff
allegedly began. [Doc. 17-1, p. 10]. Plaintiff was then terminated on August 4, 2022.

[Doc. 22-7]. This timing creates a 29-day gap between Plaintiff’s request for an
accommodation and termination, which is well within the timeframe that the Fifth
Circuit considers sufficient to establish causation. See January, 74 F.4th at 653.
Accordingly, Plaintiff is able to establish a prima facie case of ADA retaliation.
C. Defendant’s Nonretaliatory Justification
Once the plaintiff carries his prima facie burden, the employer is presumed to
have retaliated against the plaintiff. McInnis, 207 F.3d at 279–80. To rebut this

presumption, the employer must simply “articulate a legitimate … nonretaliatory
reason for its employment action.” McCoy v. City of Shreveport, 492 F.3d 551,
557 (5th Cir. 2007).
The plaintiff must then show that the employer’s articulated reason was
pretextual by establishing that their protected activity was a “but-for” cause of the
employer’s adverse employment action. Saketkoo v. Administrators of Tulane Educ.
Fund, 31 F.4th 990, 1001–02 (5th Cir. 2022) (“An employee can establish pretext in
the context of retaliation ‘by showing that a discriminatory motive more likely
motivated her employer’s decision.’”). Notably, the standard for establishing a factual
dispute as to pretext after an employer has articulated a non-retaliatory reason is

higher than that for prima facie causation; temporal proximity alone is insufficient.
January, 74 F.4th at 654.
Defendant again argues that its reason for terminating Plaintiff was because
there were no vacant positions available for which Plaintiff was qualified and that fit
Plaintiff’s restrictions due to his pacemaker. [Doc. 17-1, pp. 24–26]. Once more,
Defendant’s stated reason for terminating Plaintiff is premised upon the conclusion

that welding is an essential function of the Container Technician position. In short,
Defendant’s alleged legitimate and non-discriminatory justification for terminating
Plaintiff is inextricably linked to the nature of Plaintiff’s physical impairment and
the Container Technician position’s essential job duties. So, if a jury were to find that
Plaintiff is disabled, but that welding is not an essential function of his position, then
Defendant’s reasoning would “constitute the discrimination that the ADA forbids.”
See Cannon, 813 F.3d at 594. Consequently, Defendant’s stated reason presents a

genuine dispute of material fact for the same reasons discussed supra and as set forth
in Cannon. Accordingly, summary judgment is not warranted for Plaintiff’s ADA
retaliation claim.
III. FMLA Retaliation
Finally, Plaintiff brings an FMLA retaliation claim premised on his
employment termination, which Plaintiff alleges was due to his attempt to take
FMLA-protected leave. [Doc. 1, ¶¶ 60–61]. In its Motion, Defendant contends that
Plaintiff’s FMLA claim is time-barred, or alternatively, that Plaintiff cannot establish

the prima facie elements of FMLA retaliation. [Doc. 17-1, pp. 30–32]. Plaintiff fails
to address Defendant’s statute of limitations argument. [Doc. 22].
The FMLA entitles eligible employees to twelve work weeks of leave during
any twelve-month period because of a serious health condition. 29 U.S.C.
§ 2612(a)(1). The FMLA provides that a covered employer may not “interfere with,
restrain, or deny the exercise of or the attempt to exercise, any [FMLA leave] right.”

29 U.S.C. § 2615(a). The FMLA also “protects employees from retaliation or
discrimination for exercising their rights under the FMLA.” Mauder v. Metro. Transit
Auth. of Harris Cnty., 446 F.3d 574, 580 (5th Cir. 2006).
Here, the parties do not dispute that Defendant was subject to the FMLA or
that Plaintiff was an FMLA covered employee. See generally [Docs. 17, 22, 27]. The
threshold question is whether Plaintiff’s FMLA retaliation claim is time-barred; if it
is, any alleged factual disputes are irrelevant.

The statute of limitations for an FMLA claim is two years, or three years if the
alleged violation was willful. 29 U.S.C. § 2617(c); Mozingo v. Oil States Energy, Inc.,
661 F. App’x 828, 830 (5th Cir. 2016), citing 29 U.S.C. § 2617(c); Coleman v.
Carrington Mortg. Servs., LLC, 2020 WL 4723174, at *7 (E.D. Tex. July 27, 2020)
(finding that plaintiff’s FMLA claim, which was filed more than two years after the
alleged violation occurred, was time-barred).
The latest allegedly retaliatory conduct that occurred was the termination of
Plaintiff’s employment on August 5, 2022, when Plaintiff received the termination
letter. [Doc. 22-7]. As noted above, Plaintiff’s lawsuit was filed on September 10,

2024. [Doc. 1]. This is more than two years after the last instance of the allegedly
retaliatory conduct. Consequently, unless Plaintiff alleges that Defendant willfully
retaliated against Plaintiff, Plaintiff’s FMLA retaliation claim is time-barred.
In order “to establish a willful violation of the FMLA, a plaintiff must show
that his employer ‘either knew or showed reckless disregard for the matter of whether
its conduct was prohibited by statute.’” Mozingo v. Oil States Energy, Inc., 661

F. App’x 828, 830 (5th Cir. 2016), quoting Henson v. Bell Helicopter Textron, Inc., 128
F. App’x 387, 393 (5th Cir. 2005). However, “[a] negligent violation is not a willful
violation, and an unreasonable violation does not necessarily constitute a willful
violation.” Id., quoting Steele v. Leasing Enters., Ltd., 826 F.3d 237, 248 (5th Cir.
2016).
But here, Plaintiff does not allege in his Complaint or his Opposition that
Defendant willfully retaliated against him. See generally [Docs. 1, 22]. And the

record is devoid of any factual allegations from Plaintiff that Defendant acted
willfully. Accordingly, Plaintiff’s FMLA retaliation claim is time-barred and
summary judgment is warranted.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant’s MOTION FOR
SUMMARY JUDGMENT [Doc. 17] is GRANTED IN PART and DENIED IN PART.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s request for summary judgment
and dismissal of Plaintiffs claims for discrimination and retaliation under the ADA
is DENIED.
IT IS FURTHER ORDERED that Defendant’s request for summary judgment
and dismissal of Plaintiff's claim for retaliation under the FMLA is GRANTED.
THUS, DONE AND SIGNED in Chambers on this 23"¢ day of January 2026.

DAVID C. JOSEPH
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11245837. Public record. Not legal advice.