Garner v. Chevron Phillips Chem. Co.

• Citation: 44 NDLR P 87,834 F.Supp.2d 528
• Decision Date: 29 November 2011
• Docket Number: Civil Action No. H–10–138.
• Parties: Jennifer GARNER, Plaintiff, v. CHEVRON PHILLIPS CHEMICAL COMPANY, L.P., and Chevron Phillips Chemical Holdings II, L.L.C., General Partners, Defendants.
• Court: U.S. District Court — Southern District of Texas

834 F.Supp.2d 528

44 NDLR P 87

Jennifer GARNER, Plaintiff,

v.CHEVRON PHILLIPS CHEMICAL COMPANY, L.P., and Chevron Phillips Chemical Holdings II, L.L.C., General Partners, Defendants.

Civil Action No. H–10–138.

United States District Court,

S.D. Texas,

Houston Division.

Nov. 29, 2011.

Mark Siurek, Warren Siurek L.L.P., Houston, TX, for Plaintiff.

Scott Robert McLaughlin, D. Elaine Conway, Jackson Walker L.L.P., Houston, TX, for Defendants.

OPINION AND ORDER OF PARTIAL SUMMARY JUDGMENT

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, alleging violations of Plaintiff Jennifer Garner's (“Garner's”) rights under the Family and Medical Leave Act of 1992 (“FMLA”), 29 U.S.C. §§ 2601–54, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–13, as amended by the ADA Amendments Act of 2008 (“ADAAA”), Pub.L. No. 110–325, 122 Stat. 3553, and the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq., is Chevron Phillips Chemical Company, L.L.P. and Chevron Phillips Chemical holdings II, LLC, General Partners' (collectively, “Chevron's”) motion for summary judgment (instrument # 17).

Also pending is Garner's opposed motion for leave to file surreply (# 32). Chevron contends the Court should deny the motion because it simply rehashes previous points, fails to offer new evidence or information, and merely seeks to have the last word while delaying resolution of the motion for summary judgment. If the Court permits Garner to file the surreply, Chevron asks leave to file a final reply as it is customary and appropriate for a movant to have the final word.

The Court finds this argument meritless. The surreply in no way prejudices Chevron and does not affect the Court's determinations regarding the motion for summary judgment. It does provide documentary evidence in support of, but not a new argument about, Garner's claim of reduction of the percentage of Garner's merit pay increase in 2007 from earlier years. The Court accordingly grants the motion to file surreply, in the interests of time denies Chevron's request to file yet another reply, and accordingly addresses the motion for summary judgment.

Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, 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.” A dispute of material fact is “genuine” if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact; the movant may, but is not required to, negate elements of the nonmovant's case to prevail on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.1998).

If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir.1994). “[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause of action(s). Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713;Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996).

“ ‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ....’ ” State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.1990),quotingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Nor is the ‘mere scintilla of evidence’ sufficient; ‘there must be evidence on which the jury could reasonably find for the plaintiff.’ ” Id., quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The Fifth Circuit requires the nonmovant to submit “ ‘significant probative evidence.’ ” Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir.1982), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-op., 799 F.2d 194, 197 (5th Cir.1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir.1999), citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548, and Liberty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505.

The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712–13.

Relevant Law

A. ADA and ADAAA

The ADAAA, P.L. 110–325, which amends the ADA, became effective on January 1, 2009 and expands the coverage of the ADA, but is not retroactive. Kemp v. Holder, 610 F.3d 231, 236 (5th Cir.2010), citing Carmona v. Southwest Airlines, 604 F.3d 848, 857 (5th Cir.2010), citing EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n. 8 (5th Cir.2009). Thus the ADAAA applies to Garner's claims in 2009, but only the ADA applies to her 2007 claims.

1. The ADA

Title I of the ADA prohibits discrimination against an employee on the basis of physical or mental disability, requires an employer to make reasonable accommodations necessary to allow an employee with a disability to perform the essential functions of her job unless the accommodation would impose an undue hardship on the employer. Section 12112(a) of the ADA provides that no covered entity shall “discriminate” against a qualified individual with a disability because of the disability of such an individual in regard to, inter alia, “the hiring, advancement, or discharge of employees ... and other terms, conditions, and privileges of employment.” In addition, Section 12112(b)(5) states that the term, “discriminate,” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operations of the business of such covered entity.” A “qualified individual with a disability” is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. § 12111(8). A disability is “(A) a physical or mental impairment that substantially limits one or more of the major activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” ¹See Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) and Toyota Motor Manufacturing v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), both of which were overturned by the ADAAA. Sutton, holding that an employee is not disabled if his impairment is corrected by a mitigating measure to the point where it does not substantially limit a major life activity (e.g., by insulin given to a diabetic), required a court to take into account the ameliorative effects of mitigating measures in determining whether there was a disability,² while Toyota narrowly construed and strictly interpreted the term “disability.” ³

To state a claim under subsection A, a plaintiff must allege that she has a physical or mental impairment. § 12102(2)(A); 29 C.F.R. § 1630.2(g). A “physical impairment” is “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic, skin; and endocrine.” 29 C.F.R. § 1630.2(h)(1).

Simply having an impairment is insufficient to make one disabled under the statute; a plaintiff must also show that the impairment substantially limits a major life activity. Chevron Phillips, 570 F.3d at 614,citing Toyota Motor, 534 U.S. 184, 195, 122 S.Ct. 681 (2002). The implementing regulations in § 1630.2(i) provides a non-exhaustive list of major life activities, which include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and walking.” 29 C.F.R. § 1630.2(i); id. Moreover, “to be substantially limited means to be unable to perform a major life activity that the average person in the general population can perform or to be significantly restricted in the ability to perform it.” Id., citing29 C.F.R. § 1630.2(j). In deciding whether a person...