Richards v. Seariver Maritime Financial Holdings

• Decision Date: 12 November 1998
• Docket Number: No. CIV. A. H-96-3909.,CIV. A. H-96-3909.
• Citation: 59 F.Supp.2d 616
• Parties: Christopher RICHARDS, Plaintiff, v. SEARIVER MARITIME FINANCIAL HOLDINGS, INC., formerly known as Exxon Shipping Co., and Seariver Maritime, Inc., Defendant.
• Court: U.S. District Court — Southern District of Texas

Page 616

59 F.Supp.2d 616

Christopher RICHARDS, Plaintiff, v. SEARIVER MARITIME FINANCIAL HOLDINGS, INC., formerly known as Exxon Shipping Co., and Seariver Maritime, Inc., Defendant.

No. CIV. A. H-96-3909.

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

November 12, 1998.

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ORDER

GILMORE, District Judge.

Pending before the Court is Defendant's Motion for Summary Judgment (Instrument No. 24). Having reviewed the submissions of the parties and the applicable law, the Court finds that the Defendant's motion should be GRANTED.

I.

Plaintiff Christopher Richards ("Richards"), bring this action against Defendants Seariver Maritime Financial Holdings, Inc., and Seariver Maritime, Inc. ("Seariver" or "Defendant"). Richards alleges violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12102(a) and (b), 12112(a) and (b), Title VII of the Civil Rights Act of 1964, the Texas Commission on Human Rights Act ("TCHRA"), TEXAS LABOR CODE ANN. § 21.051 (West 1998), and intentional infliction of emotional distress. Richards seeks actual and exemplary damages, and attorneys' fees and costs. The matter is before the Court on the Defendant's motion for summary judgment.

Richards was employed by Seariver as a temporary maintenance seaman ("MS") on April 2, 1991. Richards was promoted to able-bodied seaman ("AB") on March 1, 1993. Sometime between July and September 1992, Richards injured his elbow while working on a Seariver ship. He was examined by Dr. David A. Smith ("Smith") of Industrial Medical Services ("IMS") in San Francisco. Richards was diagnosed with lateral epicondylitis (tennis elbow) by Dr. Smith, who then administered a cortisone injection to Richards two days later. On April 12, 1993, Richards re-injured his elbow and aggravated his prior injury while "pulling a line during docking operations." (Defendant's Memorandum in Support of Motion for Summary Judgment, Instrument No. 25, at 3) ("Defendant's Memo"). Richards began receiving short-term disability benefits on April 13, 1993. On August 10, 1993, Richards underwent surgery for his right elbow and began physical therapy sessions. During physical therapy to rehabilitate his elbow, Richards suffered a shoulder injury, a torn rotator cuff. Dr. Gary Gartsman surgically repaired Richards' shoulder on August 17, 1994.

Subsequently, Richards initiated a suit against Exxon Shipping Company, the predecessor to Seariver, in the Southern District of Texas under the Jones Act, 46 U.S.C.App. § 688, to recover worker's compensation disability benefits. In the meantime, Richards' short-term disability benefits expired on April 12, 1994, whereupon Seariver placed Richards on a leave of absence until the litigation was resolved. Richards then applied for and received long-term disability benefits from April 13, 1994, to May 31, 1995.

The court resolved Richards' Jones Act claim for workers compensation when it issued findings of fact and conclusions of law on February 6, 1995. The court found that Dr. Smith had administered an excessive dose of cortisone, thereby exacerbating Richards' elbow injury. The court also determined that Richards was permanently disabled in his right arm, and that he was permanently restricted from lifting more than 25 pounds. Both Seariver and Richards stipulated that Richards was permanently restricted from lifting more than 25 pounds with his right arm and that he could never work as an AB again. During the liability phase of the hearing, on May 4, 1995, the court found that Seariver was liable to Richards for exacerbation of his elbow injury, but not the shoulder injury, and assessed damages. However, pursuant to a previously executed "high-low" settlement agreement, Seariver paid Richards $300,000.

Following the trial, Richards attempted to return to work at Seariver. In March 1995, he asked to be assigned to positions of chief mate, second mate, third mate, captain in the foreign flag fleet of Seariver, or MS position. In the alternative, he asked to be assigned to any job that could be accommodated in light of his arm impairment, such as food handler, wiper, maintenance position on a ship, or an onshore position.

In the meantime, Seariver filed suit against IMS and Dr. Smith for his negligence in administering an excessive dose of cortisone to Richards and worsening his elbow injury. During the course of that suit, on March 1, 1996, Richards was deposed by Marco Quazzo, attorney for Seariver. On March 3, 1996, the Seariver Human Resources department committee concluded that Richards did not qualify for any Seariver positions, with or without accommodation, given his medical restrictions and experience. On March 31, 1996, Seariver terminated Richards' employment.

Richards filed a discrimination charge with the EEOC and the Texas Human Rights Commission on June 2, 1995, and an amended charge on May 8, 1996. Richards obtained a "right to sue" letter from the EEOC on August 23, 1996. Richards filed a complaint in this court on November 14, 1996. (Complaint, Instrument No. 1). Plaintiff alleges that Seariver refused to make any reasonable accommodations for his disability under the ADA, and refused to allow him to return to work. (Complaint, Instrument No. 1, at 5). Richards also charges that Seariver discriminated against him on the basis of his race, color, and national origin,¹ alleging that Seariver created a new position for a similarly injured Caucasian worker, but refused to accommodate Richards. (Complaint, Instrument No. 1, at 5). Richards also contends that his termination was in retaliation for filing the Jones Act suit and the EEOC claim. (Complaint, Instrument No. 1, at 6). Finally, Richards alleges that Seariver intentionally inflicted emotional distress upon him through its employees' failure to obtain a new position for Richards at Seariver. (Complaint, Instrument No. 1, at 6).

On March 2, 1998, Defendant moved for summary judgment, arguing that Richards does not qualify for protection under the ADA because he does not have a "disability" as defined by the ADA, that he was not qualified for the jobs he sought, that he cannot prove that he was denied reasonable accommodations or that his disability was a motivating factor in the decision to terminate him. (Defendant's Memo, Instrument No. 25, at 12-17). Seariver argues that Richards' Title VII claims fail because he was not similarly situated in "nearly identical circumstances" as the disabled Caucasian co-worker who was reemployed by Seariver, and that there is no evidence of pretext or intentional discrimination by Seariver (Defendant's Memo, Instrument No. 25, at 2). Regarding the retaliation claim, Seariver contends that there is no proof that Seariver retaliated by discharging Richards because he filed the Jones Act lawsuit and the EEOC claim. Finally, Seariver argues that Richards cannot prevail on his claim of intentional infliction of emotional distress, because his distress does not rise to the requisite level of severity. (Defendant's Memo, Instrument No. 25, at 24-25).

In response, Plaintiff argues that he qualifies as "disabled" under the ADA, the court in his Jones Act suit found that he was permanently disabled in his right arm, and that Seariver stipulated to the same. (Plaintiff's Objection to Defendant's Motion for Summary Judgment, Instrument No. 27, at 7) ("Plaintiff's Objection"). Plaintiff also claims that he was qualified for the alternate positions he sought, and that Seariver refused to accommodate him by adapting a position for him. As to his Title VII claim, Richards contends that as a black West Indian man, he is a member of a protected class, that he was qualified for alternate positions, and that Seariver replaced him with a Caucasian employee with more severe disabilities. (Plaintiff's Objection, Instrument No. 27, at 10). Finally, Richards argues that he was terminated in retaliation for filing his Jones Act suit and the EEOC claim, and for testifying in an unsatisfactory way against Seariver at the deposition. (Plaintiff's Objection, Instrument No. 27, at 11).

II.

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56. A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson, 106 S.Ct. at 2510. If the evidence rebutting the motion for summary judgment is only colorable or not significantly probative, summary judgment should be granted. Anderson, 106 S.Ct. at 2511; see Lewis v. Glendel Drilling Co., 898 F.2d 1083, 1088 (5th Cir.1990), cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991). The summary judgment procedure, therefore, "enables a party `who believes there is no genuine issue as to a specific fact essential to the other side's case to demand at least one sworn averment of that [specific] fact before the lengthy process of litigation continues.'" Microsoft Corp. v. CMOS Technologies, Inc., 872 F.Supp. 1329, 1334 (D.N.J.1994) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

Under Rule 56(c), the moving party bears the initial burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and for identifying those portions of the record that demonstrate such absence. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987).

Where the moving party has met its Rule 56(c...