McKey v. Occidental Chemical Corp.

• Decision Date: 28 February 1997
• Docket Number: Civil Action No. G-96-170.
• Parties: Jimmy Dan McKEY, Plaintiff, v. OCCIDENTAL CHEMICAL CORPORATION and OxyChem, Defendant.
• Court: U.S. District Court — Southern District of Texas

956 F.Supp. 1313

Jimmy Dan McKEY, Plaintiff, v. OCCIDENTAL CHEMICAL CORPORATION and OxyChem, Defendant.

Civil Action No. G-96-170.

United States District Court, S.D. Texas, Galveston Division.

February 28, 1997.

COPYRIGHT MATERIAL OMITTED

Sean Patrick Tracey, Apffel & Tracey, Alvin, TX, for Jimmy Dan McKey.

Holly Harvel Williamson, Littler Mendelson Fastiff & Tichy, Houston, TX, for Occidental Chemical Corp. and OxyChem.

ORDER GRANTING SUMMARY JUDGMENT

KENT, District Judge.

This is a wrongful termination case brought pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (the ADA). Plaintiff alleges that the Defendants discriminated against him on the basis of his alcoholism. Plaintiff also alleges state law claims of intentional infliction of emotional distress. Now before the Court is Defendants' Motion for Summary Judgment, dated December 20, 1996. For the reasons set forth below, the Motion is GRANTED.

I. FACTUAL BACKGROUND

Plaintiff Jimmy Dan McKey is a former Occidental Chemical Corporation (Oxy) employee who was terminated in June of 1995. Prior to his termination, McKey worked as an operator at the Vinyl Chloride Monimoner (VCM) Unit of Oxy's Deer Park Plant (the Plant). Because the VCM Unit is a safety sensitive unit, it is important for the operators and employees of that unit to observe carefully all safety and environmental procedures. The Defendants describe several incidents involving McKey led them to conclude that McKey might pose a risk to the safety and welfare of the Plant's employees and of the surrounding community.

Oxy requires that all employees go through extensive training on safety issues both prior to and during their job assignment. The Plant's drug and alcohol policy is one of the many safety issues discussed during these training sessions. Due to the safety sensitive nature of the plant environment, Oxy emphasizes the importance of enforcing its drug and alcohol policy. If the company develops a reasonable suspicion that an employee may have a drug or alcohol abuse problem, it refers that employee to the company's Plan 21 Employee Assistance Program (EAP) for diagnosis and treatment. If an employee is required to take leave for treatment for a drug or alcohol problem, Oxy requires the employee to execute a Return to Work Agreement as a condition of returning to and continuing employment. Oxy utilizes these Return to Work Agreements to make an effort to continue to employ the individual while at the same time taking precautions to ensure the safety of other employees and the surrounding community.

The conditions of the Return to Work Agreement include: the employee's agreement to primary treatment and aftercare as designated by the employee's therapist; the employee's agreement to attend support groups or therapy as designated by the employee's therapist or counselor; the employee's agreement that he will meet with his counselor or group as designated by the EAP counselor; the employee's agreement that work requirements are the only excuse for missing a meeting; the employee's agreement to remain abstinent from mood altering chemicals, including alcohol, except on prescription of the employee's physician; and the employee's understanding that failure to comply with any of these conditions is cause for immediate termination. Defendants' Ex. A-1. Oxy strictly enforces all of the terms of its Return to Work Agreements. If an employee violates any terms of the agreement, he is terminated.

In August of 1993, Oxy received a report that McKey had extorted alcohol from the employees of Furmanite, an Oxy contractor. An investigation revealed that Furmanite employees provided the bottles of liquor to McKey in response to McKey's demands for the liquor. Moreover, McKey had implied that Furmanite's future relationship with the Plant depended on its compliance with his demands for liquor and his demands that Furmanite call him for overtime duty. Although the carrying of alcohol on Oxy property and the extortion were both grounds for termination, Oxy chose not to terminate McKey. Instead, McKey was suspended for three days without pay and placed on indefinite probation. However, in November 1993, McKey attempted to take paint from the Plant. Again having grounds for discharge, Oxy instead gave McKey another chance. McKey was suspended for four days without pay, demoted, and continued on indefinite probation.

Concerned about McKey's behavior, Oxy's Human Resources Manager referred McKey to the EAP for counseling and evaluation. McKey was informed that all employees who are referred to the EAP for suspected drug or alcohol problems were required to sign a Return to Work Agreement as a condition of returning to work. McKey signed the standard Return to Work Agreement, including all of the conditions listed above, on January 10, 1994.

On March 1, 1995, while on his day off, McKey was seriously injured in a single car accident.¹ Because of the injuries he sustained in that accident, McKey was unable to return to work for nine weeks. McKey signed a release allowing Oxy to obtain his hospital records, which revealed that on the date of the accident, McKey's blood alcohol level registered 0.314, more than three times standard level of intoxication in Texas. See TEXAS PENAL CODE § 49.01(1)(B) (Vernon 1994). In short, McKey was drunk at the time of his accident, a direct violation of his Return to Work Agreement.

Because McKey violated his Return to Work Agreement by consuming alcohol, Oxy terminated his employment. McKey now claims that he is an alcoholic, and that alcoholism is a qualified disability under the ADA. McKey further contends that Oxy discriminated against him and intentionally inflicted emotional distress upon him by terminating his employment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56. Rule 56(e) requires that when a motion for summary judgment is made, the nonmoving party must set forth set forth specific facts showing that there is a genuine issue for trial. Id.; See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

III. ADA CLAIMS

The Fifth Circuit applies the burden shifting analytic framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to analyze claims under the ADA.² Daigle v. Liberty Life Ins., 70 F.3d 394, 396 (5th Cir.1995).

Under the familiar McDonnell Douglas/Burdine framework, the Court employs a three-part test designed to determine the motivation of the defendant in taking the challenged action. McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207. First, the plaintiff is required to establish a prima facie case wherein he must establish the elements of the discrimination claim. If the plaintiff proves his prima facie case, a presumption of discrimination arises. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th Cir.1993).

The burden of production then shifts to the defendant to rebut this presumption by articulating a legitimate, nondiscriminatory reason for the alleged discriminatory action. Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471 (5th Cir.1992), cert. denied, 507 U.S. 909, 113 S.Ct. 1253, 122 L.Ed.2d 652 (1993). A defendant meets this burden by proffering admissible evidence of an explanation that would be legally sufficient to justify a judgment for the defendant. Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1267, 117 L.Ed.2d 495 (1992). The defendant need not persuade the trier of fact that there was no intentional discrimination; it need only produce evidence on that point. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747.

Third, once the defendant satisfies this burden, the presumption of discrimination established by the plaintiff's prima facie case dissolves. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10. The plaintiff's burden of persuasion then arises, and the plaintiff must produce evidence that the defendant's proffered reasons are mere pretexts, the real reason for the action having been based on an impermissible animus. Id. at 256, 101 S.Ct. at 1095; Bodenheimer, 5 F.3d at 959. He may succeed in this either by persuading the Court that a discriminatory reason more likely motivated the defendant or by showing that the defendant's reason is unworthy of credence. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The ultimate burden of proof of intentional racial discrimination rests at all times on the plaintiff. Hicks, 509 U.S. at 507, 113 S.Ct. at 2749.

Summary judgment is particularly appropriate when the Court is evaluating the evidence at the "pretext" stage of the McDonnell Douglas analysis.

[I]t is relatively easy both for a plaintiff to establish a prima facie case and for a defendant to articulate a legitimate, nondiscriminatory reason for his decision.... In the context of summary judgment ..., the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext.

Britt v. The Grocers Supply Co. Inc., 978 F.2d 1441, 1450 (5th Cir.1992), cert. denied, 508 U.S....