Clark v. Champion Nat'l Sec., Inc.

• Citation: 952 F.3d 570
• Decision Date: 10 March 2020
• Docket Number: No. 18-11613,18-11613
• Parties: George Charles CLARK, Plaintiff–Appellant, v. CHAMPION NATIONAL SECURITY, INCORPORATED, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

952 F.3d 570

George Charles CLARK, Plaintiff–Appellant,

v.CHAMPION NATIONAL SECURITY, INCORPORATED, Defendant–Appellee.

No. 18-11613

United States Court of Appeals, Fifth Circuit.

FILED January 14, 2020

March 10, 2020

Christopher E. Stoy, James Robert Hudson, Susan E. Hutchison, Hutchison & Stoy, P.L.L.C., Fort Worth, TX, for Plaintiff - Appellant.

Harold Dean Jones, Esq., Greg McAllister, Littler Mendelson, P.C., Dallas, TX, Courtney Blair Wilson, Esq., Littler Mendelson, P.C., Miami, FL, for Defendant - Appellee.

Brian D. East, Senior Attorney, Disability Rights Texas, Central Texas Regional Office, Austin, TX, for Amici Curiae.

Before ELROD, WILLETT, and OLDHAM, Circuit Judges.

ON PETITION FOR REHEARING AND REHEARING EN BANC

DON R. WILLETT, Circuit Judge:

The petition for rehearing is DENIED and no member of this panel nor judge in active service having requested that the court be polled on rehearing en banc, the petition for rehearing en banc is also DENIED. The following is substituted in place of our opinion.

In this workplace-discrimination appeal, Charles Clark says he was fired because of a diabetes-related condition. His employer, Champion National Security, Inc., offers a simpler explanation: Clark was sleeping at his desk during work hours, an immediately terminable offense. The district court granted Champion's motion for summary judgment. We affirm.

I. BACKGROUND

Champion provides uniformed security services to other companies. In October 2015, Champion hired Clark as a Personnel Manager.¹ In this position, Clark was responsible for human resources and employee-related issues at his branch.² His duties included interviewing, hiring, training, disciplining, and terminating security guards. For example, Clark "trained security guards and gave guidance about Champion's policies, including the alertness policy." He also "participated in the process of terminating Champion employees that [sic] appeared to be asleep at work."³ As such, Champion maintains that it was particularly important "for Clark to set a good example [for] guards and staff by being alert at work." Generally, it's important to Champion that "managers who are enforcing policy are also compliant with those same policies."

According to Clark, he suffered from multiple physical and mental ailments prior to and during his employment at Champion.⁴ Most relevant to this case, Clark has been an insulin-dependent Type II diabetic for over a decade. Clark requested two accommodations for his diabetes, which Champion granted: First, he requested a refrigerator in his office in which to store insulin. Second, Clark requested flexibility to leave work to attend doctor appointments. Champion provided these accommodations throughout Clark's tenure at the company. And Clark didn't request any other accommodations related to his diabetes.

But Clark did request exceptions to Champion policies. Due to the nature of its customer-facing and public-facing business, Champion requires officers and staff to adhere to specific dress and grooming requirements. Notably, Champion requires employees to be clean-shaven and wear dress shirts tucked into their pants.⁵ But Clark wanted to "grow [a] small beard." He believed Champion should have granted this request because he interacted with fellow employees, not clients. Champion denied Clark's request.

About three months later, Clark renewed his request. This time, Clark framed his request as one based upon his diabetes.⁶ He submitted a note from his general practitioner. But the note merely stated, "[p]lease excuse [Clark] from the shaving requirement as he has eczema

and dry skin." Clark does not assert that eczema or dry skin is a disability. Champion assented to Clark's request based on this doctor's note. But Bill McCoy, Champion's then-Senior Vice President, offered Clark an extra fifty cents per hour for complying with the shaving policy. Clark rejected the offer.

Around the same time, Clark also requested an exception to Champion's dress code. Clark had recently undergone shoulder surgery. So he requested an accommodation permitting him to leave his shirt untucked during his recovery. In support of this request, Clark submitted a note from his doctor. The note prohibited "manipulation of the left arm until released by the surgeon." Because the note did not state that he was unable to tuck in his shirt, Champion initially denied Clark's request, thinking that he could tuck in his shirt without using his left arm. Clark submitted additional documentation from his doctor, but it still didn't explicitly say that he was unable to tuck in his shirt.⁷ McCoy told Clark that Champion did not believe his request to leave his shirt untucked was reasonable.

After Clark exchanged a series of emails about his dress and grooming requests with McCoy, Clark asserted that McCoy was harassing him on the basis of disability. So McCoy referred Clark to Jeff Mays, Champion's Corporate Human Resources Director.⁸ Clark submitted a formal complaint to Mays in April 2016.⁹ And Mays investigated the allegations. Mays concluded that McCoy did not harass Clark on the basis of disability. Mays shared these findings with both McCoy and Clark—though Clark rejected the legitimacy of the investigation.¹⁰

Let's fast forward to August 2016. A Champion employee told Paul Bents, Clark's manager, that "Clark was closing his office door for long periods of time" and she "could often hear him snoring."¹¹ The following month, Bents received a picture anonymously by text message. This picture appeared to show Clark asleep at his desk at work. "Lack of alertness" at work—which includes "sleeping or giving the appearance of sleeping"—is an immediately terminable offense at Champion.¹² But Champion did not terminate Clark at this time. Champion explained that using an anonymous picture as sole proof would have deviated from its usual process of terminating a non-alert employee, which includes collecting two witness statements. Plus, the supposed violation of the alertness policy was not properly documented. So Champion took no action against Clark.

But December 7, 2017 was a different story. On that morning, another employee told Bents that it appeared Clark was sleeping at his desk during work hours. So Bents went to Clark's office and took a picture of him around 8:30am. Both Bents and the reporting employee stated that they heard Clark breathing. Bents immediately sent to corporate management the picture of Clark sleeping and employee statements corroborating the event.¹³ A few minutes later, Clark awoke on his own. Champion asserts that Clark did not appear to be in physical distress. And Clark does not provide evidence otherwise. Bents explained to Clark that at least two people saw him sleeping. Clark told Bents that he didn't remember getting up that morning or driving to work, but woke up at his desk. Clark also told Bents that he might have been experiencing a diabetic emergency, and that he was going to the hospital. Then Clark left the office.

While at the emergency room, he received a call from Mays. Mays terminated Clark for violating the alertness policy. Clark insisted that he wasn't sleeping; he said he passed out from low blood sugar. But Mays simply wished him well in future endeavors.

Clark contends that Champion fired him because of a condition resulting from his disability.¹⁴ So Clark sued Champion, alleging violations of the Americans with Disabilities Act¹⁵ and the Texas Labor Code.¹⁶ Specifically, Clark alleges discrimination and harassment on the basis of disability, retaliation, failure to accommodate a disability, and failure to engage in the interactive process under both the ADA and TCHRA. Accordingly, he claims entitlement to myriad damages and fees pursuant to state and federal law.

Both parties filed motions for summary judgment. The district court granted Champion's motion, dismissing all of Clark's claims. Clark timely appealed.

II. STANDARD OF REVIEW

"We review a district court's summary judgment de novo, applying the same standard as the district court."¹⁷ Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹⁸ "A fact is material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute is genuine if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ "¹⁹ "When considering a motion for summary judgment, the court views all facts and evidence in the light most favorable to the non-moving party."²⁰ "Mere conclusory allegations are insufficient to defeat summary judgment."²¹

III. DISCUSSION

A. Direct Evidence of Disability Discrimination

Title II of the ADA prohibits an employer from discriminating against an employee who is a qualified individual with a disability on the basis of that disability.²² "In a discriminatory-termination action under the ADA, the employee 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. "²³

Clark argues that he presented direct evidence of discrimination based on disability. But the district court disagreed. The district court determined that Clark would be unable to establish a claim for disability discrimination through direct evidence, and that "the evidence proffered fails to establish that [Champion] relied upon any forbidden factor in making the ultimate decision to fire [Clark]." Clark believes this finding was in error. The district court did not explain its conclusion. But we agree with it.

"[D]irect evidence is rare."²⁴ And this is not one of those rare cases. We have defined "direct evidence" as "evidence which, if believed, proves the fact without inference or presumption."²⁵ "A statement or document which shows ‘on its face that an improper criterion served as a...