622 Fed.Appx. 426 (5th Cir. 2015), 15-50060, Gordon v. Acosta Sales & Mktg., Inc.

Docket Nº:15-50060
Citation:622 Fed.Appx. 426
Opinion Judge:PER CURIAM:
Party Name:JEFFREY R. GORDON, Plaintiff-Appellant, v. ACOSTA SALES AND MARKETING, INC., Defendant-Appellee
Attorney:For EFFERY R. GORDON, Plaintiff - Appellant: Robert Chris Pittard, Forte & Pittard, P.L.L.C., San Antonio, TX. For ACOSTA SALES AND MARKETING, INCORPORATED, Defendant - Appellee: Kevin E. Hyde, Foley & Lardner, L.L.P., Jacksonville, FL; Henry B. Gonzalez, III, Gonzalez, Chiscano, Angulo & Kasson,...
Judge Panel:Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
Case Date:August 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 426

622 Fed.Appx. 426 (5th Cir. 2015)

JEFFREY R. GORDON, Plaintiff-Appellant,

v.

ACOSTA SALES AND MARKETING, INC., Defendant-Appellee

No. 15-50060

United States Court of Appeals, Fifth Circuit

August 14, 2015

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1

Appeal from the United States District Court for the Western District of Texas. USDC No. 5:13-CV-662.

For EFFERY R. GORDON, Plaintiff - Appellant: Robert Chris Pittard, Forte & Pittard, P.L.L.C., San Antonio, TX.

For ACOSTA SALES AND MARKETING, INCORPORATED, Defendant - Appellee: Kevin E. Hyde, Foley & Lardner, L.L.P., Jacksonville, FL; Henry B. Gonzalez, III, Gonzalez, Chiscano, Angulo & Kasson, P.C., San Antonio, TX.

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

OPINION

Page 427

PER CURIAM:[*]

Plaintiff-Appellant Jeffrey R. Gordon (" Gordon" ) brought this suit against Defendant-Appellee Acosta Sales and Marketing, Inc. (" Acosta" ) claiming that Acosta discriminated against him in violation of the Americans with Disabilities Act (" ADA" ). Upon reviewing Acosta's motion for summary judgment, the district court granted the motion and entered final judgment in favor of Acosta. We AFFIRM.

Page 428

I.

Acosta is a sales and marketing company that helps various food and consumer product companies with their stock management, sales, and promotions at large retailers like grocery and drug stores. Acosta hired Gordon as a part-time retail coverage merchandiser (an " RCM" ) in September 2012. Gordon's responsibilities as an RCM included tracking product sales, informing store managers about their inventory, and helping promote ongoing or upcoming deals for his assigned products. Gordon set up his own schedule, usually travelling between two to three stores per day. The average travel time between stores was fifteen to twenty minutes.

Gordon has a medical condition called edema, which causes swelling of the extremities. As treatment for this condition, Gordon takes a diuretic medication, which causes frequent urination for the six to eight hours after he ingests it. In October or November 2012, Gordon informed his supervisor, Rudy Ramirez, that he had edema and that he would be seeking alternate employment within Acosta. Ramirez supported his decision. In November 2012, Gordon applied for two open administrative positions but was turned down for both of them.

In late 2012, Kraft Foods (an Acosta client) requested that Acosta provide RCMs who would work to promote Kraft products exclusively as part of a new staffing model. To accommodate this request, Acosta hired a new RCM who took on the Kraft responsibilities, which Gordon and two other RCMs previously held. Acosta notified the whole team of the change in an email on January 7, 2013. Gordon objected to the impact this decision had on his responsibilities. In order to maintain Gordon's hours, Ramirez suggested expanding the number of stores assigned to Gordon. Gordon opposed this option because of the wear and tear additional travel would have on his vehicle. On January 8, 2013, Gordon emailed Ramirez and requested that Acosta reduce his hours to 24-per week (from 30 hours) to enable his search for alternative employment. The email did not mention Gordon's disability or that Gordon was having any difficulty performing his duties. On January 9, 2013, in response to the e-mail, Ramirez confronted Gordon while Gordon was working on-site at a grocery store and yelled at Gordon, using an expletive. Ramirez never mentioned Gordon's disability during their argument.

Gordon complained about Ramirez's conduct in an email to Ramirez's supervisor, David Osgood, and a human resources (" HR" ) representative, Judy Conord. Gordon mentioned filing an Equal Employment Opportunity Commission (" EEOC" ) charge for verbal assault and harassment but did not discuss any protected characteristic such as Gordon's disability. In a follow-up email, Gordon requested a " reasonable accommodation" of removing Gordon from the supervision of Ramirez, preferably to an...

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