Broussard v. Oryx Energy Co., CIV.A. 1:00-CV-28.

Citation110 F.Supp.2d 532
Decision Date29 August 2000
Docket NumberNo. CIV.A. 1:00-CV-28.,CIV.A. 1:00-CV-28.
PartiesMark E. BROUSSARD, Jr., Plaintiff, v. ORYX ENERGY COMPANY, Defendant.
CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas

Elwood Clement Stevens, Jr., Morgan City, LA Joseph Warren Walker, Houston, TX, for plaintiff.

William John Bux, Locke, Liddell & Sapp, David M. Gregory, Locke, Liddell & Sapp, Houston, TX, for defendant.


HEARTFIELD, District Judge.

Before the Court is the Defendant's Motion for Summary Judgment and the Plaintiffs "Motion for Leave of Court to File Plaintiffs First Supplemental and Amending Complaint."

The Court hereby DENIES the Plaintiff's request to amend or supplement his Complaint and hereby GRANTS the Defendant's Motion for Summary Judgment in full.

I. Background

Plaintiff, Mark E. Broussard, Jr., brings this suit alleging Oryx Energy Company ("Oryx") discriminated against him in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and under Sections 321-325 of the Louisiana discrimination statutes.1 Specifically, Plaintiff claims in his Original Complaint that, in October 1994, Oryx failed to assign him to another position or otherwise accommodate his alleged disability. Defendant asserts that Plaintiffs allegation is barred by limitations.

Oryx Energy Company (which ceased to exist as a corporate entity in February 1999 due to a merger with Kerr-McGee Corp.) was engaged in the business of exploration and production of oil and gas. Broussard, was employed by Oryx at its Sabine Pass, Texas facility. He was hired on January 25, 1978 and worked for the majority of his time as a platform operator on offshore rigs. Plaintiff was ultimately terminated on March 31, 1998 because Oryx claimed he was unable to perform the essential function of his job as a platform operator and there were no other available jobs at Oryx for which he was qualified.

Plaintiff actively worked as a platform operator for Oryx until July 12, 1994. His active employment ended due to a knee problem, and Plaintiff went on sick leave on July 19, 1994. Dr. G. Gregory Gidman performed surgery on Plaintiffs knee and wrote a diagnosis on August 15, 1994 which stated in part, "I do not feel that it is medically advisable for him to continue the type of work he is doing ... he really would be advised to try finding employment that requires mostly sitting and relieving as much stress as he can to the right knee. This recommendation would be on a permanent basis."

Plaintiff never returned to work after his surgery, but remained on medical leave until March 31, 1998. Oryx provided Broussard full sick pay benefits for six months, from July 19, 1994 to January 23, 1995. While receiving full-pay benefits, Plaintiff applied for long term disability benefits under Oryx's Long Term Disability Plan from CIGNA Group Insurance ("CIGNA") and began receiving these benefits on January 24, 1995, when his sick pay was exhausted.

From 1996 to 1998, Plaintiff attended a technical school and received a degree in network technologies where his studies involved the installation and repair of computer networks. Meanwhile, CIGNA continued to administer and pay Plaintiff's long term disability benefits and to pay Plaintiffs benefits until March 31, 1998. At that time, CIGNA notified Plaintiff that he was no longer eligible for long term disability benefits because CIGNA determined he was not disabled as required under the long term disability benefit plan due to his doctor's evaluation and Plaintiff's newly acquired computer skills.

Mr. Steve Church, Oryx's former Manager of Human Resources, looked for job openings for Plaintiff in Oryx's organization in April 1998, but there were no openings for which Plaintiff was qualified. Specifically, there were no openings in the Sabine Pass facility where Plaintiff had previously worked. Further, there were no computer jobs elsewhere at any other Oryx facility to utilize Plaintiffs newly acquired computer skills. As Mr. Church's undisputed deposition testimony shows, Oryx was eliminating its computer positions in 1997 and 1998 by outsourcing the work to vendors and laying off other Oryx employees who performed computer services. Thus, there was no computer work available at Oryx for Plaintiff to perform. Oryx notified Plaintiff of his termination, including termination of his long term disability pay, effective March 31, 1998.

Plaintiff ultimately, on November 24, 1998, filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff's Charge of Discrimination alleged that Oryx discriminated against him because he was not offered a purchasing agent/procurement operator position at Sabine Pass, Texas facility in 1994. He claimed that he should have been assigned to this position sometime between midAugust through mid-October 1994. It is undisputed, however, that in 1994 the procurement operator position was classified as a temporary position and was being performed by Mr. Phillip Cox and had been for some time.

Approximately three and one-half years later on January 18, 1998, the procurement operator position at the Sabine Pass, Texas facility became a permanent position. In his Charge of Discrimination, Plaintiff asserts that he should have been offered the procurement operator position at this time also. However, Mr. Cox was assigned the job on a permanent basis due to his approximately four years experience. Plaintiff admits that he had not discussed nor sought any other position from Oryx. Nor did he contact Oryx in any way since January 1995, the date he went on long-term disability. Based on these facts, the EEOC entered a finding of no cause and issued Plaintiff a Right to Sue Letter.

Plaintiff later asserted, for the first time at his deposition on April 19, 2000, that he should have been given a safety coordinator/operator position at the Sabine Pass facility. He makes this allegation over three years from the time this position was filled in January 1997. Moreover, Plaintiff failed to make an allegation about the safety operator position in his EEOC charge and Original Complaint.

II. Analysis
A. Standard of Review for Motion for Summary Judgment

A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). When ruling on motions for summary judgment, courts are required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Ragas, 136 F.3d at 458.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine issue of fact. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support plaintiffs opposition to defendant's motion. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994); Skotak v. Tenneco Resins Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.1992).

B. Plaintiffs Response to Defendant's Motion for Summary Judgment

In Texas Instruments, Inc. v. Hyundai Electronics Industries Co., this Court recognized that "[t]he nonmoving party does not overcome the absence of a genuine issue of material fact by simply `creating some metaphysical doubt as to the material facts,' by making `conclusory allegations,' by presenting `unsubstantiated assertions,' or by proffering only a `scintilla' of evidence." 42 F.Supp.2d 660, 669 (E.D.Tex.1999) (citations omitted). This Court also quoted various provisions of Local Rule CV-56 as follows:

Local Rule CV-56(b) reads, in part: "Any party opposing the motion should serve and file a response that includes in the text of the response or as an appendix thereto, a `Statement of Genuine Issues.'"

Local Rule CV-56(c) reads in part: "In resolving the motion for summary judgment, the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the `Statement of Genuine Issues' filed in opposition to the motion, as supported by proper summary judgment evidence."

Id. at 670 (quoting Local Rule CV-56(b) & (c)) (emphasis added).

Plaintiffs Response to the Motion for Summary Judgment does not include a "Statement of Genuine Issues" in the text or as an appendix. His Response also makes multiple, new allegations based on new facts, which are not supported by his pleadings. Plaintiff's attempt to create fact issues by conclusory allegations and unsubstantiated assertions highlights the necessity for Local Rule CV-56. Because Plaintiff failed to include a "Statement of Genuine Issues" in the text of his Response or in an appendix (and in turn completely ignored Local Rule CV-56(b)), the Court is to assume that the facts presented by Oryx's Motion for Summary Judgment and supported by admissible evidence are admitted to exist without controversy. Texas Instruments, 42 F.Supp.2d at 670; Local Rule CV-56(c). Accordingly, Plaintiff produced no genuine issue of material fact to prevent the granting of Oryx's Motion, and therefore, the Court could grant Oryx's Motion for Summary...

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