Munoz v. H & M WHOLESALE, INC., Civil Action No. H-94-CV-4205.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation926 F. Supp. 596
Docket NumberCivil Action No. H-94-CV-4205.
PartiesJoe MUNOZ and Denise Munoz, Plaintiffs, v. H & M WHOLESALE, INC., Defendant.
Decision Date10 May 1996






Donald R. Taylor and Robert L. Brown, III, Taylor & Dunham, L.L.P., Austin, Texas, for Plaintiffs.

Shadow Sloan and Thomas H. Wilson, Vinson & Elkins, Houston, Texas, for Defendant.


CRONE, United States Magistrate Judge.

Pending before the court is Defendant H & M Wholesale, Inc.'s ("H & M") Motion for Summary Judgment (# 19). H & M seeks summary judgment on Plaintiff Joe Munoz's ("Munoz") claims of violations of the Americans with Disabilities Act ("ADA") and Texas Labor Code § 451.001. H & M also seeks summary judgment on Munoz and his wife, Denise Munoz's ("Denise"), claim of intentional infliction of emotional distress.

Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that the defendant's motion for summary judgment should be granted in part and denied in part.

I. Background

H & M, located in Bryan, Texas, is a seller and distributor of petroleum products. Mary Walker ("Walker"), who is the president of H & M, took over the company's operations in 1991 after her husband's death. James Boedeker ("Boedeker"), Walker's son, is vice president of H & M. Boedeker is also president of Max Food Mart, Incorporated ("Max Food Mart"), a chain of convenience stores located in Bryan. H & M is responsible for the structural and gasoline pump maintenance at the Max Food Mart stores. Walker originally hired Munoz to do yard work at her home. In July 1989, H & M hired Munoz as one of its two oil delivery drivers. H & M never employed more than two full-time drivers at any time. Munoz's job duties included loading fifty-five gallon drums of oil and cases of petroleum products onto a truck. When delivering products to the customers' facilities, Munoz had no assistance unloading the products about half of the time. Overtime work was required on occasion.

On February 9, 1994, Munoz injured his back while he and two other H & M employees were was jackhammering concrete out of a driveway and throwing the broken concrete onto a truck. On February 10, Boedeker sent Munoz to a chiropractor, Dr. J.R. Parker ("Parker"), when Munoz complained of back pain. Parker suggested that Munoz take off from work for the rest of the day. Munoz reported to work on February 11 and told Linda Bird ("Bird"), H & M's secretary, that he did not feel well and was taking the rest of the day off. Munoz had not yet seen a physician for his sore back. On February 12, Munoz went to the emergency room at a local hospital where X-rays were taken of his back. The emergency room doctor prescribed physical therapy and gave him an excuse from work.

Munoz saw an orthopedist, Dr. David Bailey ("Bailey"), on February 16, 1994. In papers Munoz filled out at Bailey's office, Munoz described his duties at work—such as heavy lifting—and provided a worker's compensation history. When asked on the form, "Do you work with others who can assist you to perform heavy work?"; Munoz checked "No." In response to the question, "Are there light duty tasks available for you to request during your recovery?"; Munoz also answered "No." Bailey recommended that Munoz be off work for one week, until February 23, 1994. Bailey extended Munoz's time off on two more occasions.

Bird filled out the Employer's First Report of Injury on February 18, 1994. H & M did not contest Munoz's claim for workers' compensation benefits. On March 2, 1994, H & M made the decision to terminate Munoz' employment. Boedeker drove to Munoz's home to give him the news. According to Munoz, Boedeker asked him how he was doing financially and whether he needed anything. Munoz told him he was doing okay. Boedeker then informed Munoz that H & M would have to let him go and that they did not want him back as an oil delivery driver because they were afraid Munoz would reinjure himself. Boedeker, however, according to Munoz, told Munoz that he would give him other types of work.

On March 10, after H & M had terminated Munoz, Munoz's doctor released him to return to work on light duty, which prohibited Munoz from lifting more than twenty-two pounds. H & M hired a person from outside the company to fill Munoz's position. According to Munoz, in the Spring or Summer after Munoz was fired, an employee named Ed Sikorski ("Sikorski") retired. H & M transferred Noe Rodriguez ("Rodriguez") to fill the position, leaving Rodriguez's unfilled. An oil delivery position became open in late June 1994. Munoz received a full release to return to work on June 27, 1994. Munoz, however, never attempted to contact Boedeker or Walker regarding the availability of other work after he was terminated.

On September 5, 1994, Munoz filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging violations of the ADA. On December 13, 1994, the Munozes brought suit against H & M. Munoz alleges violations of the ADA and workers' compensation retaliation in violation of Texas Labor Code § 451.001. Both Munoz and Denise claim violations under the Employee Retirement Income Security Act of 1974 ("ERISA"), due to H & M's failure to provide them with notice of their right to continue health insurance coverage as mandated by the Comprehensive Budget Reconciliation Act ("COBRA"). Munoz and Denise also claim intentional infliction of emotional distress. On December 4, 1995, H & M filed its motion for summary judgment on all of the Munozes' claims.

On January 11, 1996, in its reply to the plaintiffs' response to the motion for summary judgment, H & M advised the court that it was withdrawing its request for summary judgment on the Munozes' claim under ERISA, conceding that H & M failed to provide Munoz with formal notice of his right to continue his health benefits as required by COBRA. H & M states that Munoz is not entitled to a jury trial on his ERISA claim, but rather it is for the court to determine the amount of the penalty, if any, to be assessed against H & M. The parties are in dispute as to whether Denise was a covered beneficiary under Munoz's medical insurance policy; H & M contends that Denise's ERISA claim should be dismissed. The status of Denise's coverage, however, need not be addressed at this time.

II. Analysis
A. The Applicable Standard

Rule 56(c) provides that "summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

B. Americans with Disabilities Act
1. Prima Facie Case of Handicap Discrimination

The ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To recover under this statute, Munoz must prove that he was discriminated against on the basis of his disability. R.G.H. v. Abbott Labs., No. 93 C 4361, 1995 WL 68830, at *9 (N.D.Ill. Feb. 16, 1995). He may present either direct or circumstantial evidence of disability discrimination or may employ the indirect method of proof utilized by the courts in other types of discrimination cases. Id.

Although the case law is scant regarding the ADA, especially within the Fifth Circuit, the few courts that have addressed claims brought under the Act have looked to Title VII and the Rehabilitation Act to provide guidance as to the elements that constitute a prima facie case of disability discrimination. Aucutt v. Six Flags Over Mid-America, Inc., 869 F.Supp. 736, 743 (E.D.Mo. 1994); see R.G.H., 1995 WL 68830 at *9; Grinstead v. Pool Co., No. 93-2320, 1994 WL 25515, at *2 (E.D.La. Jan. 20, 1994), aff'd, 26 F.3d 1118 (5th Cir.1994). The language adopted in the ADA tracks that of the Rehabilitation Act of 1973, which provides in part that "`no otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, ... be subjected to discrimination under any program or activity receiving federal financial assistance.'" White v. York Int'l Corp., 45 F.3d 357, 360 n. 5 (10th Cir.1995) (quoting 29 U.S.C. 794(a)). "Because the...

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