Dugger v. Stephen F. Austin State Univ.

Decision Date06 February 2017
Docket NumberCase No. 2:15–CV–1509–WCB
Citation232 F.Supp.3d 938
Parties Timothy DUGGER, Plaintiff, v. STEPHEN F. AUSTIN STATE UNIVERSITY, Defendant.
CourtU.S. District Court — Eastern District of Texas

John Edward Wall, Jr., Attorney at Law, Dallas, TX, for Plaintiff.

Frank A. King, Office of the Attorney General—Administrative Law Division, Austin, TX, for Defendant.



Before the Court is defendant Stephen F. Austin State University's consolidated motion to dismiss the complaint and motion for summary judgment. Dkt. No. 34. The motion to dismiss is GRANTED IN PART and DENIED IN PART. The motion for summary judgment is DENIED.


The facts, viewed most favorably to the plaintiff, as they must be on the defendant's motions to dismiss and for summary judgment, are as follows:

Plaintiff Timothy Dugger was employed as a police officer for the defendant Stephen F. Austin State University ("SFA"), an agency of the State of Texas. In August 2014, he was assigned to the University Police Department's Parking and Traffic Office. On August 23, 2014, a Saturday, Mr. Dugger fell while at work and injured his back. He reported his injury to his supervisor Clayton Harrington, who told Dugger that he needed to be seen by SFA's Environmental Health, Safety, and Risk Management Department ("the Health and Safety Office") to report his injury and "fill out the necessary paperwork." Dkt. No. 38–1, Plaintiff's Exh. 1, at 2. Because it was a Saturday, the Health and Safety Office was closed, so Dugger waited until the office opened on Monday, August 25, to report his injury.

On August 25, Mr. Dugger went to the Health and Safety Office where he filled out a report of the incident. The medical staff at the Health and Safety Office evaluated Mr. Dugger at that time and referred him to a local physician for further evaluation and treatment. Dkt. No. 38–1, at 4, Plaintiff's Exh. 1, at 2. After Mr. Dugger had completed the paperwork regarding the incident, the Health and Safety Office forwarded his report of injury to the State Office of Risk Management ("SORM"), the State's workers' compensation insurance carrier, which initiated the process of filing for workers' compensation benefits for Mr. Dugger's injury. See Dkt. No. 34–2, Defendant's Exh. B.

Mr. Dugger sought medical treatment from Dr. David Duane Smyers, the physician to whom he had been referred. Dr. Smyers examined Mr. Dugger and cleared him to return to work with restrictions. Dr. Smyers's restrictions directed that Mr. Dugger was not to engage in prolonged standing, kneeling/squatting, bending/stooping, pushing/pulling, twisting or climbing, and further directed that he was to be limited to a maximum of two hours of walking per day. Dkt. No. 34–3, Defendant's Exh. C. Dr. Smyers determined that he could not diagnose the extent of Mr. Dugger's injuries without an MRI examination, but in the meantime he recommended a course of physical therapy.

The Assistant Chief of Police for the University Police Department reviewed Dr. Smyers's restrictions and arranged for a light-duty assignment for Mr. Dugger consistent with those restrictions. Dkt. No. 34–4, Defendant's Exh. D. The light-duty assignment was memorialized in an "Offer of Employment" dated August 29, 2014, and signed by SFA's police chief, Marc Cossich. The "Offer of Employment" noted that SFA's Workers' Compensation Division was "in receipt of medical information from your treating physician ... outlining the restrictions under which you are able to return to work." It added that "[t]he University Police Department will abide by the physical limitations as outlined by your physician." The Offer further provided, as to the expected duration of the light-duty assignment, that it was "contingent on the need for additional help working the front counter during the peak time of the beginning of the Semester. Once the need has passed, then the Light Duty Assignment will end." Dkt. No. 34–5, Defendant's Exh. E.

Mr. Dugger accepted the light-duty assignment on September 2, 2014. However, the assignment ended on September 4 because, according to Mr. Dugger's supervisor, the peak workload period for the Parking and Traffic Office at the outset of the semester had ended. At that point, the University Police Department advised Mr. Dugger that it could no longer accommodate his restrictions by providing him with light-duty work and that he would not be allowed to return to work until his physicians gave him a full-duty release.

Dr. Smyers submitted supplemental reports to SFA on September 4, September 18, and September 29 in which he continued to advise that Mr. Dugger could return to work, but subject to the restrictions previously imposed. See Dkt. No. 34–8, at 2–4, Defendant's Exh. H.

After Mr. Dugger completed a course of physical therapy with no resulting improvement in his condition, SORM approved an MRI examination, and in October 2014 Mr. Dugger underwent an MRI. The results of the examination showed "left L4–5 foraminal stenosis secondary to a posterior lateral disc herniation and annular tear and facet degenerative changes and facet degenerative changes also noted at L3–4 and L5–S1." Dkt. No. 38–1, at 11, Plaintiff's Exh. 2. Mr. Dugger had another medical assessment on October 13, 2014, which resulted in a diagnosis of herniated lumbar nucleus pulposus. The report of that examination continued to state that Mr. Dugger could return to work, but subject to the previously imposed restrictions. Dkt. No. 34–8, at 7, Defendant's Exh. H.

Another physician, Dr. James Michaels, examined Mr. Dugger on December 2, 2014. Dr. Michaels noted that Mr. Dugger was complaining of numbness in his leg and pain radiating down his left leg. Dr. Michaels concluded that the MRI showed a "left paracentral bulge with the exiting L4 nerve being abutted by the disc." His assessment was the possibility of right sacroilitis with myofascial pain. Dr. Michaels did not think surgical intervention was necessary at that time, however. Dkt. No. 38–1, at 9, Plaintiff's Exh. 2.

Mr. Dugger was then evaluated by Dr. Michael Grandison on December 15, 2014. Dkt. No. 34–8, at 8, Defendant's Exh. H; Dkt. No. 38–1, at 11, Plaintiff's Exh. 2. Like the previous physicians who had treated Mr. Dugger, Dr. Grandison released Mr. Dugger to work, but subject to activity restrictions, including not walking more than two hours per day. Dkt. No. 34–8, at 8, Defendant's Exh. H; Dkt. No. 38–1, at 11, Plaintiff's Exh. 2.

In December 2014, Mr. Dugger arranged to be examined by Dr. Kenneth Fults, a specialist in interventional pain management. On December 22, 2014, Dr. Fults directed that Mr. Dugger was to remain off work until his next appointment, on January 7, 2015. Dkt. No. 34–7, Defendant's Exh. G. Following that appointment, Dr. Fults assessed Mr. Dugger with "lumbar disc protrusion with radiculitis

," and "thoracic and lumbar strain /sprain." Dkt. No. 34–8, at 9, Defendant's Exh. H. On Dr. Fults's recommendation, SORM approved an epidural steroid injection, which was administered on January 27, 2015, to the L4–L5 region of Mr. Dugger's spine. Dkt. No. 38–1, at 12, Plaintiff's Exh. 2. The injection produced no change in Mr. Dugger's symptoms. Id .

On March 10, 2015, Mr. Dugger filed a charge of discrimination with the Texas Workers' Compensation Commission. He claimed that he had been discriminated against in violation of chapter 21 of the Texas Labor Code and the Americans with Disabilities Act ("ADA") by being denied a reasonable accommodation due to his disability. Dkt. No. 34–12, Defendant's Exh. L.

Over the next several months, Mr. Dugger continued to see Dr. Fults, who continued to report to SFA that Mr. Dugger's injury prevented him from returning to work, even with restrictions. Dkt. No. 34–8, at 10, Defendant's Exh. H. During that period, Mr. Dugger reported to Dr. Fults that his pain levels were worsening.

In May 2015, Mr. Dugger saw another physician, Dr. Renato Bosita of the Texas Back Institute. Dr. Bosita asked that SORM approve a new MRI examination, which was ultimately done. Based on the results of that MRI, Dr. Bosita diagnosed Mr. Dugger as having "mild disc desiccation at several levels in the lumbar spine without significant loss of disc height, multilevel degenerative facet hypertrophy

, annular tear along the left posterior lateral L4–5 disc margin with 2–3 mm broad-based disc protrusion. The disc may contact the left nerve root lateral to the foramen at that level." Dkt. No. 38–1, at 12, Plaintiff's Exh. 2. Dr. Bosita recommended that Mr. Dugger have surgery. SORM, however, ultimately declined to approve the request for surgery.

On September 10, 2015, Mr. Dugger filed this action, alleging that he had a disability and had been discriminated against in violation of various statutes. Dkt. No. 1. Two months later, he filed an amended complaint in which he narrowed his federal claims to asserting that he had been discriminated against because of his disability, in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. He identified the alleged discriminatory acts as including, but not limited to: (1) refusing to allow him to return to employment on September 4, 2014; (2) discriminating against him in the terms, conditions, and privileges of employment; (3) retaliating against him; and (4) refusing to accommodate his disability. Mr. Dugger also alleged that SFA had violated section 451.001 of the Texas Labor Code by discriminating against him for filing a workers' compensation claim for his injury. Mr. Dugger invoked this Court's federal question jurisdiction, 28 U.S.C. § 1331, for his Rehabilitation Act claim, and the Court's supplemental jurisdiction, 28 U.S.C. § 1367, for his Texas Labor Code claim. Dkt. No. 4.

On April 15, 2016, after Mr. Dugger had exhausted all of his accumulated leave and had been on leave without pay for a period of time, SFA terminated his...

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