Daniels v. Allied Elec. Contractors Inc.

• Decision Date: 11 March 1994
• Docket Number: No. 93-CV-283.,93-CV-283.
• Citation: 847 F. Supp. 514
• Parties: Jerry D. DANIELS, Plaintiff, v. ALLIED ELECTRICAL CONTRACTORS INC., Mobil Oil Corporation, and Southeast Texas Safety Association, Defendants.
• Court: U.S. District Court — Eastern District of Texas

847 F. Supp. 514

Jerry D. DANIELS, Plaintiff, v. ALLIED ELECTRICAL CONTRACTORS INC., Mobil Oil Corporation, and Southeast Texas Safety Association, Defendants.

No. 93-CV-283.

United States District Court, E.D. Texas, Beaumont Division.

March 11, 1994.

James A. Morris, Jr., Provost & Umphrey, Beaumont, TX, for Jerry D. Daniels.

Daniel Douglas Clayton, Beaumont, TX, for Allied Elec. Contractors, Inc.

James W. Hambright, Orgain Bell & Tucker, Beaumont, TX, for Mobil Oil Corp.

Roger Kelly Donaldson, Andrews Myers & Donaldson, Beaumont, TX, for Southeast Texas Safety Ass'n.

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

SCHELL, District Judge.

Before this court are the Motions for Summary Judgment of the several Defendants, Plaintiff's collective reply thereto, and several other submissions by the defendants in rebuttal. Upon consideration of the parties pleadings, memoranda of law, and supporting documents, this court is of the opinion that the motions should be GRANTED IN PART and DENIED IN PART as further explained herein.

FACTS AND BACKGROUND

During the summer of 1992, Plaintiff was employed by Defendant Allied Electrical Contractors, Inc. ("Allied") and was performing contract work at the Beaumont refinery of Defendant Mobil Oil Corporation ("Mobil"). In June of 1992, Mobil instituted a requirement that all contract employees at the Beaumont refinery be able to pass a written safety test. The test was administered by Defendant Southeast Texas Safety Association ("SETSA"), a local non-profit organization.

Plaintiff alleges that he suffers from a developmental reading and writing disorder as a result of a childhood illness, but nonetheless has accrued over 35 years' competent work experience including two-and-a-half years at the Mobil plant from which he was eventually barred in early July, 1992. On June 15, 1992, Plaintiff failed the SETSA test, purportedly as a result of this disorder. Plaintiff further contends that his request to take an oral examination was denied.¹ Plaintiff alleges that the above-described scenario was repeated on July 17, 1992, after which time he was discharged from his employment.

Plaintiff asserts claims under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Texas Commission on Human Rights Act ("TCHRA"), Tex.Civ. Stat.Ann.Art. 5221k, § 1.01 et seq.,² and perhaps, although this is less clear, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991. A number of cross-claims have also emerged during the pendency of this action.³ Presently, all three defendants have filed motions for summary judgment, which should be granted when there exists no genuine issue of material fact and the movant is therefore entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence of the nonmovant is to be believed, and all reasonable inferences are to be drawn in the nonmovant's favor. Id. at 255, 106 S.Ct. at 2514.

AMERICANS WITH DISABILITIES ACT CLAIM

Although Defendants make a number of attacks upon Plaintiff's ADA claims, this court has no reason to look further than the first one presented. It is undisputed that Plaintiff did not re-take the examination at issue after he failed it for a second time on July 17, 1992, and that the ADA did not become effective until July 26, 1992. See Pub.L.No. 101-336, Title I, § 108 (1990). Further, Plaintiff was barred from working at the Mobil refinery prior to July 26, 1992. Plaintiff's reply, supported by affidavit, contends only that the test's post-July 26, 1992 administration to others created a "continuing violation of The Act that continues to have a discriminatory impact on the Plaintiff." Plaintiff's Opp. at 2.

This court does not agree. Cf. Waller v. Wal-Mart Stores, Inc., Case Number 1:93-CV-588, January 18, 1994 (Schell, J.). Both the "continuing violation" argument and the alternate contention that the ADA should be applied retroactively have been widely rejected. See, e.g., Malek v. Martin Marietta Corp., 1993 WL 463451, No. 93-4018-SAC (D.Kan. Oct. 15, 1993) ("continuing violation" theory); O'Bryant v. City of Midland, 9 F.3d 421, 422 (5th Cir.1993) (ADA not to be applied retroactively). As Plaintiff does not allege any specific post-July 26, 1992 acts in violation of the ADA, summary judgment is granted in all Defendants' favor as regards this claim.

CIVIL RIGHTS ACT OF 1991 CLAIM

Plaintiff states in his First Amended Complaint that his claims are based in part on the Civil Rights Act of 1991. However, he makes no further allegations regarding the type of discrimination covered by Title VII as amended. Nevertheless, by its terms, Title VII forbids employment practices which improperly discriminate among individuals only on account of their "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Reference to such discrimination is absent in Plaintiff's Complaint, his Charge of Discrimination with the Texas Commission on Human Rights,⁴ and the materials submitted in response to the instant motion. Moreover, while the defendants have not submitted evidence which affirmatively demonstrates that the plaintiff is not a member of one of the classes of persons protected by § 2000e-2(a), their burden may be discharged merely by pointing out that there is an absence of evidence on an element of the nonmovant's case which is both essential and in regards to which the nonmovant bears the burden of persuasion. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary Judgment for all Defendants is therefore appropriate on this claim as well.

TCHRA CLAIM

a. Overview

Although the Texas Commission on Human Rights Act, former Tex.Civ.Stat.Ann. Art. 5221k, has been repealed and recodified under the Texas Labor Code, the repealing act has no effect on complaints filed with the Texas Commission on Human Rights before September 1, 1993. See Act of May 24, 1993, ch. 276, § 9 (73d Leg.). As Plaintiff's Charge of Discrimination was filed on November 16, 1992, Article 5221k, as amended to 1992, applies to the instant claim. Id. Texas courts have embraced the use of more firmly-established federal civil rights precedent (i.e., Title VII) to aid in the interpretation of the short-lived pre-1993 version of the TCHRA. See City of Austin v. Gifford, 824 S.W.2d 735, 739 (Tex.App. — Austin 1992) ("When reviewing a case brought pursuant to the TCHRA, a court may look not only to the relevant provisions of the state statute, but when necessary, also to the analogous federal provisions contained in Title VII."); cf. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991) (TCHRA's general purposes "include correlation of state law with federal law in the area of discrimination in employment").

It should be noted, however, that Title VII and TCHRA cannot be read in pari materia. Although Title VII precedent is used to interpret TCHRA, TCHRA coverage by it terms prohibits "handicap" discrimination — addressed in the federal realm not by Title VII, but by the Americans With Disabilities Act — in addition to the types of discrimination (i.e., on the basis of race or gender) forbidden by Title VII. Therefore, Plaintiff's disability discrimination claim may be brought under TCHRA, which, unlike the ADA, was in effect prior to July 26, 1992.

b. Who is Plaintiff's "Employer"?

The interrelationship of Defendants Allied (Plaintiff's nominal employer), Mobil (the premises owner which contracted with Allied), and SETSA (the testing agency) has brought about some maneuvering by the defendants on the issue of who might ultimately be responsible for the alleged discrimination in the event that it is proven. Allied requests judgment as a matter of law because, it claims, Mobil is Plaintiff's "employer" for the purposes of this action; Mobil takes a diametrically-opposed position. SETSA, apparently uninterested in playing favorites in the Allied-Mobil dispute, is content merely to assert that whoever the "employer" is, it's not SETSA. Common sense suggests that this court cannot accept all three arguments.

1. Allied

A comprehensive resolution of this "employer" issue will not be required, however, as regards Defendant Allied. Separately from the above contention, Allied has produced competent evidence showing that the "Allied" which was Plaintiff's putative "employer" in the relevant legal sense was "Allied Electrical Contractors of Beaumont, Inc.," a corporation formed independently of the named Defendant.⁵ This evidence is adduced both in the affidavit of the named Defendant's Vice President, Kelly Kelley, and copies of various paychecks issued to Plaintiff for the period of June 4, 1992 to January 28, 1993.⁶ Plaintiff, though placed on notice, has not produced any evidence to rebut the contention that he has not sued a proper party. Summary judgment will therefore be granted as to Defendant Allied.

2. SETSA

The Fifth Circuit has recently summarized its now well-settled method of determining standing when a putative "employer" resists that title:

In determining whether an employment relationship exists within the meaning of Title VII and the ADEA, we apply a "hybrid economic realities/common law control test." The right to control an employee's conduct is the most important component of this test. When examining the control component, we have focused on whether the alleged employer has the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee's work schedule.

The economic realities component of our test has focused on whether the alleged employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and conditions of employment.

Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117, 119 (5th Cir.1993) (citations omitted).

This court...