Lumar v. Monsanto Co., CIVIL ACTION NO. 17-13373
| Decision Date | 13 June 2019 |
| Docket Number | CIVIL ACTION NO. 17-13373 |
| Parties | Dwayne LUMAR v. MONSANTO COMPANY |
| Court | U.S. District Court — Eastern District of Louisiana |
DaShawn Paul Hayes, Hayes Law Firm, PLC, New Orleans, LA, for Dwayne Lumar.
Tracy E. Kern, Minia E. Bremenstul, Jones Walker, New Orleans, LA, for Monsanto Company.
ORDER AND REASONS
Before the Court on consent of the parties under the authority of 28 U.S.C. § 636(c) is a Motion for Summary Judgment (Rec. Doc. No. 41) filed by the defendant, Monsanto Company ("defendant" or "Monsanto") seeking judgment as a matter of law to dismiss the plaintiff's claims of race discrimination or harassment in violation of Title VII of the Civil Rights Act of 1964 as codified in 42 U.S.C. § 2000e et seq. ("Title VII"), disability discrimination or harassment in violation of the amended Americans with Disabilities Act ("ADA") codified at 42 U.S.C. § 12101, et seq. , and hostile work environment related to these violations. The plaintiff filed an opposition and supplemental opposition to the motion. Rec. Doc. Nos. 47, 54. Monsanto replied to plaintiff's opposition. Rec. Doc. No. 57. The motion was submitted on the briefs.
The plaintiff, Dwayne Lumar ("plaintiff" or "Lumar"), an African American male who works for the defendant, Monsanto as a Senior Production Technician struggled with his weight all of his life.1 In March 2013, he was offered employment by Monsanto to work as a Production Technician after being interviewed and completing a physical assessment.2 Shloe Jeffery (an African-American and head of Human Resources at the plant), Dana Parker (a Caucasian and Human Resource Generalist), and Frank Piascik (a Caucasian who became plaintiff's supervisor), each played a role in plaintiff's interview process and/or hiring.3
After accepting the offer, Lumar underwent a physical examination in Monsanto's medical department during which his weight was measured which was not communicated to Human Resources.4 After the physical examination, Lumar began working in the position for a 120-day period in which his performance was being evaluated which included both physical and written tasks.5 As a Production Technician in GI Dry Unloading, Lumar is required to wear personal protective equipment ("PPE"), climb portable ladders, and use a safety harness to perform certain job duties.6 At the time, plaintiff weighed approximately 465 pounds.7
Shloe Jeffery, the Human Resources Lead that oversees the Human Resources Operations at the Luling location of Monsanto indicated that the employees involved in making the decision were not aware of Lumar's weight. Jeffery later disclosed Lumar's weight after safety concerns were raised during the 120-day qualification process regarding the weight ratings for the equipment that Lumar was required to use to complete the process.8 In late June-early July 2013, Piascik inquired about the allowable rung loading that the existing structural ladder could handle. He consulted with Frederick Osterloh, a contractor who advised that the rungs can handle the suggested loading of 400lbs.9
In August 2013, at the end of the qualification period, Lumar was advised that he did not meet 20 percent of the job's requirements due to his weight of 474 lbs, which exceeded the safety weight ratings for the tank ladders.10 Lumar was thereafter told that in order to qualify for the job he would have to lose weight. There was no suggestion of how he should lose the weight, but he wanted to know how much weight he had to lose in order to qualify for the job.11 Lumar testified that he was given options on how to lose weight, which included diet and weight loss surgery.12 Lumar did not feel pressured or required to undergo the surgical procedure recommended by Monsanto.13 He thought that it was just a list of possible options.14
Lumar understood that he could have been fired for not meeting the qualifications.15 However, instead of terminating him, Monsanto gave Lumar an additional two months to lose weight.16 Monsanto also continued to pay his salary during the entire extended period.17 During this "extended qualification period," Lumar was in contact with the on-site nurse, Nancy Miller, who provided dietary tips and other suggestions for weight loss including advising him that he could join Weight Watchers.18 After the meetings with Ms. Miller he loss some weight and worked with Weight Watchers. However as of October 30, 2013 he was still well over 400 lbs in excess of the load limit of the ladders.19
Lumar met with Parker and Piascik in September 2013 to discuss his weight loss progress.20 At the end of the extended qualifying period in October 2013, plaintiff still weighed over 400 pounds.21 Again, rather than terminate Lumar, Monsanto gave him an additional six months for continued weight loss.22
Monsanto assisted Lumar with applying for short-term disability, which was approved by its third-party benefits administrator at the end of October 2013.23 Lumar was given six months off of work to dedicate time to lose weight and get healthy and was paid his full salary.24
While on leave, Lumar ultimately opted to undergo a gastric surgery to lose weight.25 To have the surgery, among other requirements, Lumar met with his surgeon, Dr. Redman, to discuss the procedure and matters of consent and with a psychologist, Dr. Wolfson, to prepare for the surgery.26 Plaintiff told Dr. Wolfson he would be satisfied to get to 300 pounds.27 Lumar's wife supported him having the procedure to lose weight and get healthier, and she herself had the same surgery by the same doctor a few months later.28
Lumar had the surgery in March 2014 and lost significant weight, ultimately getting down to 350 pounds.29 Because he achieved a weight under 400 pounds, he was released to return to work after eight months on April 29, 2014 and went through the qualification process again under Piascik's supervision.30 Lumar eventually qualified for the Production Technician position and received a pay raise for successfully completing the qualification process in or around September 2014.31 Monsanto also ordered new coveralls for Lumar to fit due to his size change after the weight loss.32
Since qualifying for his position, Lumar has been promoted from Trainee to Qualified Technician to Technician I to Technician II and to Senior Technician, which is the highest level and maximum pay for a Production Technician.33 He has received "Strong" or "Very Strong" on all performance reviews since 2014, including two by Piascik.34 Piascik also was his supervisor when he first qualified and when he was promoted each time through the Technician II level.35 Lumar also has had no issues with his other supervisors after Piascik, who were Kenneth Waldrop and Jeffery Billings.36
In July 2014, Monsanto re-emphasized the importance of safety in the plant and instructed all leaders to provide all employees with important safety education to increase awareness regarding the safe use of equipment, including being fully aware that personnel exceeding the equipment weight ratings may not be able to safely perform aspects of their job.37 All employees received notice of the 300 pound weight rating for some equipment, including ladders and fall protection devices. Monsanto further instructed anyone over that weight to immediately notify managers, medical personal, human resources or safety officers to review for reasonable accommodations.38 Weight notifications were added to the annual physical exams and new candidates for employment were notified of weight limits for the equipment.39
Since he reached his qualifying position, Lumar has regained the weight and now weighs over 400 pounds again.40 Lumar's weight has not affected any major life activities or his ability to work.41 At work, he is only restricted from performing tasks that require him to use equipment not rated for his weight, which he acknowledges would be dangerous and a threat to his safety.42
Lumar is still employed at Monsanto in the job of Senior Production Technician in the GI dry unloading department, and he has had no adverse employment actions taken against him.43 Lumar has never requested to change positions or "bid out" to, i.e. apply for, another open position in any department at the Monsanto plant.44
According to Lumar he was treated less favorably than all "[e]mployees, period," without distinction of race, and "[a]ny employee" whether black or white who was over 400 pounds and not required to go on medical leave to lose weight.45 Lumar contends that three other overweight employees (one of whom is African American) were not required to lose weight, or go on short term disability to do so. As a result, he contends that he was treated differently.
Monsanto asserts that it is entitled to summary judgment based on the uncontested facts deemed admitted by the plaintiff and seeks to strike plaintiff's improperly filed and inadmissible evidence.46 Monsanto contends that: (1) plaintiff has not alleged or established any underlying psychological disorder as a cause for his obesity
as required by the ADA and therefore cannot establish any discrimination or harassment under the ADA; and (2) that he has not made a prima facie case of race or disability discrimination.
Monsanto also argues that Lumar cannot now claim that it regarded him as disabled because he did not submit the claim for administrative review with the EEOC.47 Monsanto further contends that Lumar has failed to identify any employee, white or black, that was treated more favorably; namely no Production Technicians with the same supervisors, training, or job duties and Lumar has failed to present proof of their weights during qualifying or currently.
Lumar opposes the motion. He contends that: (1) morbid obesity
is considered a disability under the ADA and that no proof of a related psychological condition is...
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