Equal Emp't Opportunity Comm'n v. Steel Painters LLC

• Citation: 433 F.Supp.3d 989
• Decision Date: 14 January 2020
• Docket Number: CIVIL ACTION NO. 1:18-CV-303
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STEEL PAINTERS LLC formerly known as Steel Painters, Inc., Defendant.
• Court: United States District Courts. 5th Circuit. United States District Court of Eastern District Texas

433 F.Supp.3d 989

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.STEEL PAINTERS LLC formerly known as Steel Painters, Inc., Defendant.

CIVIL ACTION NO. 1:18-CV-303

United States District Court, E.D. Texas.

Signed January 14, 2020

Claudia M. Molina-Antanaitis, U.S. Equal Employment Opportunity Commission, Houston, TX, for Plaintiff.

Robert J. Hambright, John Seth Bullard, Orgain, Bell & Tucker LLP, Beaumont, TX, for Defendant.

MEMORANDUM AND ORDER

MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE

Pending before the court is Defendant Steel Painters, LLC formerly known as Steel Painters, Inc.'s ("Steel Painters") Motion for Summary Judgment (#21) and Plaintiff Equal Employment Opportunity Commission's ("EEOC") Motion for Leave to File Response to Summary Judgment and Exhibits Late (#27). Having considered the pending motions, the submissions of the parties, and the applicable law, the court is of the opinion that the EEOC's motion for leave should be granted as unopposed and Steel Painters's Motion for Summary Judgment should be denied.

I. Background

This case arises from Steel Painters's termination of Matthew Kimball ("Kimball"). Kimball has been a certified industrial painter since 2005. In 2012, Kimball suffered an on-the-job injury and, as a result of his treatment for that injury, developed an addiction to opioid pain medication. In late 2013, Kimball enrolled in a medically supervised drug rehabilitation program. Since 2013, Kimball has been prescribed and taken methadone

to treat his addiction. Despite his ongoing treatment for opioid addiction, Kimball has successfully worked as an industrial painter and, prior to his experience with Steel Painters, had never been disciplined or discharged from any workplace because of a methadone or opioid-related accident.

In March 2016, Kimball was conditionally hired by Steel Painters. After accepting the offer, Kimball completed a "Medical History Summary" form and disclosed to Steel Painters that he took prescription methadone

. Steel Painters never followed up with Kimball regarding the job offer. In September 2016, Doyle Menard ("Menard"), an operations manager at Steel Painters, recruited Kimball to work at a customer's facility in Silsbee, Texas.¹ On September 19, 2016, Kimball completed a "Medical History Summary" and, once again, disclosed that he used prescription methadone. That same day, Kimball underwent a drug screening and attended Steel Painters's safety orientation. Despite its constructive knowledge of Kimball's methadone use and not having received the results of his drug screening, Steel Painters put Kimball to work on September 20, 2016.

On September 26, 2016, the drug screening facility notified Steel Painters that Kimball had tested positive for methadone

on his drug screening, and Kimball was removed from the jobsite. Later that day, Kimball provided the drug screening facility verification that he was taking prescription methadone. On September 27, 2016, the drug screening facility sent Steel Painters a final report indicating that Kimball's drug test results were "negative." That same morning, Steve Wycoff ("Wycoff"), Steel Painters's Safety Director, called Kimball and told him to report to work and meet him at the front gate because Kimball needed to complete some paperwork. Kimball met Wycoff who instructed him that he need to compete a two-page form titled "Safety Sensitive Employee Medication Approval Form for Prescription Medication" ("Verification Form").

Steel Painters contends that its OTC/Rx Safety Sensitive Verification Policy ("SOP-57") requires that any employee performing a safety sensitive job while taking over-the-counter or prescription medication must have the Verification Form signed by his treating physician. Essentially, the Verification Form requires the physician to attest that the employee can safely perform safety sensitive duties while taking the prescription medication. Steel Painters issued SOP-57 and allegedly began implementing it in January 2016. According to Wycoff, however, the first time he asked any employee to complete the Verification Form was September 27, 2016, the date he requested Kimball to complete it. Steel Painters does not dispute that the first time it enforced SOP-57 was with regard to Kimball's termination.

According to Kimball, he met Wycoff at the jobsite and was given a copy of the Verification Form. Kimball informed Wycoff that he may have trouble getting his physician to sign the form. Kimball explained that he had previously experienced problems getting his doctor to sign off on a similar form provided by a former employer. Wycoff called Carla Weighmann ("Weighmann"), Steel Painters's administrative manager, who told Wycoff and Kimball that the form needed to be signed by a doctor but agreed that Kimball could wait and get it signed on September 29, 2016, at his next scheduled visit to the clinic. Kimball was then permitted to return to work. He worked from 9:00 a.m. to 5:00 p.m. that day. Upon returning home, Kimball completed the "Employee Section" of the Verification Form. On the Verification Form, Kimball indicated that his job required performing abrasive blasting and/or coating services at a customer's worksite. According to Steel Painters, performing abrasive blasting and coating services at a customer's worksite is a safety sensitive work assignment and is covered by SOP-57.

At his deposition, Kimball testified that rather than waiting for his scheduled appointment, he decided to take the next day—September 28, 2016—off work and visit the treatment center and ask his doctor to sign the form. Kimball maintains that his doctor refused to do so because of the clinic's policy against medical personnel disclosing patient information to third parties. The clinic, however, provided Kimball with a letter verifying that it prescribed him methadone

and listing a phone number that Steel Painters could call if it needed additional information. The following day, September 29, 2016, Kimball contacted Steel Painters and informed Weighmann that his doctor would not sign the form. Kimball requested that Weighmann send him to Steel Painters's company doctor for drug verification and clearance. According to Kimball, Weighmann refused the request and told him that Steel Painters's doctors would not clear him because Steel Painters does not normally hire people on methadone. The discussion between Kimball and Weighmann became heated and ended when Weighmann allegedly terminated Kimball's employment.

After his termination, Kimball filed a charge with the EEOC. On August 16, 2017, the EEOC issued Steel Painters a Letter of Determination finding reasonable cause to believe that it had violated the Americans with Disabilities Act ("ADA"). The EEOC and Steel Painters were unable to resolve the matter. On June 28, 2018, the EEOC filed the instant lawsuit. On August 16, 2019, Steel Painters filed its Motion for Summary Judgment. On September 7, 2019, the EEOC filed its Motion for Leave to File Response to Summary Judgment Late. Steel Painters has not filed a response to the EEOC's motion. Therefore, the court will treat the motion as unopposed. See Local Rule CV-7(d).

II. Analysis

A. Summary Judgment Standard

A party may move for summary judgment without regard to whether the movant is a claimant or a defending party. See Parrish v. Premier Directional Drilling, L.P. , 917 F.3d 369, 380 (5th Cir. 2019) ; Apache Corp. v. W&T Offshore, Inc. , 626 F.3d 789, 793 (5th Cir. 2010) ; CQ, Inc. v. TXU Mining Co., L.P. , 565 F.3d 268, 272 (5th Cir. 2009). Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "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." FED. R. CIV. P. 56(a) ; Parrish , 917 F.3d at 378 ; Hefren v. McDermott, Inc. , 820 F.3d 767, 771 (5th Cir. 2016). 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, and admissions on file, together with the 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, 91 L.Ed.2d 265 (1986) ; Jones v. United States , 936 F.3d 318, 321 (5th Cir. 2019) ; Mabry v. Lee Cty. , 849 F.3d 232, 234 (5th Cir. 2017) ; Davis v. Fort Bend Cty. , 765 F.3d 480, 484 (5th Cir. 2014), cert. denied , ––– U.S. ––––, 135 S. Ct. 2804, 192 L.Ed.2d 847 (2015). To warrant judgment in its favor, the movant "must establish beyond peradventure all of the essential elements of the claim or defense." Dewan v. M-I, L.L.C. , 858 F.3d 331, 334 (5th Cir. 2017) (quoting Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) ); accord Access Mediquip L.L.C. v. UnitedHealthcare Ins. Co. , 662 F.3d 376, 378 (5th Cir. 2011), cert. denied , 568 U.S. 1194, 133 S.Ct. 1467, 185 L.Ed.2d 364 (2013).

"A fact issue is material if its resolution could affect the outcome of the action." Hemphill v. State Farm Mut. Auto. Ins. Co. , 805 F.3d 535, 538 (5th Cir. 2015), cert. denied , ––– U.S. ––––, 136 S. Ct. 1715, 194 L.Ed.2d 811 (2016) ; see Parrish , 917 F.3d at 378 ; Tiblier v. Dlabal , 743 F.3d 1004, 1007 (5th Cir. 2014). "Factual disputes that are irrelevant or unnecessary will not be counted." Tiblier , 743 F.3d at 1007 (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "An issue is ‘genuine ’ if it is real and substantial, as opposed to merely formal, pretended, or a sham." Hudspeth v. City of Shreveport , 270 F. App'x 332, 334 (5th Cir. 2008) (quoting Bazan ex rel. Bazan v. Hidalgo Cty. , 246 F.3d 481, 489 (5th Cir. 2001) ); see Nall v. BNSF Ry. Co. , 917 F.3d 335, 340 (5th Cir. 2019). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could...