Spindle v. CKJ Trucking, LP

• Decision Date: 18 March 2020
• Docket Number: CIVIL ACTION NO. 4:18-CV-818
• Parties: DAVID W. SPINDLE v. CKJ TRUCKING, LP, ET AL.
• Court: U.S. District Court — Eastern District of Texas

DAVID W. SPINDLE v. CKJ TRUCKING, LP, ET AL.

CIVIL ACTION NO. 4:18-CV-818

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

March 18, 2020

MEMORANDUM OPINION & ORDER ADOPTING MAGISTRATE COURT'S REPORTS IN PART AND AS MODIFIED, GRANTING SUMMARY JUDGMENT, AND DENYING SANCTIONS

Plaintiff David Spindle alleges that he is disabled and that his former employer, CKJ Trucking, LP and its successor, CKJ Transportation of North Texas, LLC (collectively, "CKJ") failed to provide reasonable accommodation for and discriminated on the basis of his disability, both in violation of the Americans with Disabilities Act ("ADA"). Spindle further alleges that CKJ interfered with his rights under the Family and Medical Leave Act ("FMLA") and retaliated against him for exercising those rights, both in violation of the FMLA.

Three motions are pending before the Court. The first is Defendant CKJ Trucking, LP's Motion for Summary Judgment, (Dkt. #36), and the second is the CKJ Defendants' Joint Motion for Summary Judgment, (Dkt. #40).¹ The third is Defendants' Motion for Sanctions. (Dkt. #46). The Magistrate Court issued two reports on these motions. The first report addressed the two motions for summaryjudgment, recommending that they both be granted. (Dkt. #84). Defendants timely filed an objection, (Dkt. #87), to which Spindle responded, (Dkt. #88). The second report addressed the motion for sanctions, recommending that it be denied. (Dkt. #85). Neither party filed objections to this report.

The Court, having reviewed the record and the applicable law, adopts both reports in part and as modified, consistent with the reasoning set forth herein.

I. MOTIONS FOR SUMMARY JUDGMENT

A. ADA Reasonable-Accommodation Claim

1. The Magistrate Court's Report

The Magistrate Court recommends granting summary judgment on Spindle's ADA reasonable-accommodation claim. In its report, the Magistrate Court concluded that Spindle exhausted administrative remedies in the EEOC but that CKJ showed that there is no genuine dispute as to any material fact and that CKJ is entitled to judgment as a matter of law.

2. The Court's Modifications

The Court adopts the Magistrate Court's recommendation to grant summary judgment as to Spindle's ADA reasonable-accommodation claim. The Court writes separately, however, to provide the following modifications. First, the Court concludes that Spindle did not exhaust administrative remedies in the EEOC. Second, the Court elaborates on the report's discussion of Spindle's status as a "qualified individual with a disability."

Spindle's ADA reasonable-accommodation claim must be dismissed because Spindle failed to exhaust his administrative remedies as required by law. To proceed with ADA claims in federal court, a plaintiff must first exhaust administrative remedies. Patton v. Jacobs Eng'g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017). Exhaustion may include filing a charge with the EEOC that provides the basis for an investigation into acts underlying the allegedly unlawful conduct. Id. A court will determine whether an EEOC charge exhausts administrative remedies "not solely by the scope of the administrative charge itself, but by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. (internal quotation marks omitted).

Here, Spindle's EEOC charge is insufficient to exhaust administrative remedies regarding his ADA reasonable-accommodation claim. Spindle checked only the "disability" box and alleged facts supporting only disability discrimination, briefly stating, "I believe I have been discriminated against based on my disability or perceived disability." (Dkt. #36-13). The charge makes no mention of Spindle requesting reasonable accommodation. See Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 791 (5th Cir. 2017) ("Employees who require accommodation due to a disability are responsible for requesting a reasonable accommodation."). An EEOC charge alleging only facts supporting a claim of discriminatory discharge does not exhaust a claim of failure to reasonably accommodate. See, e.g., Windhauser v. Bd. of Supervisors for La. State Univ. & Agr. & Mech. Coll., 360 F. App'x 562, 565 (5th Cir. 2010) (per curiam) (unpublished) ("A failure-to-accommodate claim under the ADA isdistinct from a claim of disparate treatment."); Hamar v. Ashland, Inc., 211 F. App'x 309, 309 (5th Cir. 2006) (per curiam) (unpublished) (affirming a district court's dismissal of an ADA reasonable-accommodation claim because the underlying EEOC charge asserted only employment discrimination, and collecting cases); Green v. Nat'l Steel Corp., Midwest Div., 197 F.3d 894, 898 (7th Cir. 1999) ("Therefore, [failure to reasonably accommodate and disability discrimination] are not like or reasonably related to one another, and one cannot expect a failure to accommodate claim to develop from an investigation into a claim that an employee was terminated because of a disability." (citing Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997))). Because the charge did not include allegations sufficient to prompt EEOC investigation into failure to provide reasonable accommodation, and to thereby exhaust administrative remedies, CKJ is entitled to summary judgment on Spindle's ADA reasonable-accommodation claim.²

Failure to exhaust administrative remedies, alone, is sufficient to dismiss Spindle's ADA reasonable-accommodation claim. See, e.g., Miller v. Sw. Bell Tel. Co., 51 F. App'x 928, at *6 n.5 (5th Cir. 2002) (per curiam) (unpublished) ("It is well-established that summary judgment may be granted against a non-movant solely on the basis of failure to exhaust administrative remedies." (citing Inst. for Tech. Dev. v.Brown, 63 F.3d 445, 447 (5th Cir. 1995))). However, even if administrative remedies had been exhausted, the Court adopts the report's reasoning that Spindle's claim otherwise cannot survive summary judgment, and provides additional discussion on Spindle's status as a "qualified individual with a disability."

To succeed on an ADA reasonable-accommodation claim, a plaintiff must show that "(1) the plaintiff is a 'qualified individual with a disability;' (2) the disability and its consequential limitations were 'known' by the covered employer; and (3) the employer failed to make 'reasonable accommodations' for such known limitations." Feist v. La. Dept. of Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (quoting 42 U.S.C. § 12112(b)(5)). "Disability" has three definitions under the ADA: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1).

As discussed in the report,³ Spindle fails to produce a genuine issue of material fact as to any of these definitions and CKJ is entitled to judgment as a matter of law on the issue. As to the first definition, in his own affidavit Spindle identifies as his alleged impairment several diagnosed conditions arising from an aortocardiac bypass surgery. The Court, however, may not consider those diagnoses because they are inadmissible hearsay.

Summary-judgment evidence is subject to the same admissibility standard as trial evidence. United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008). Under the rules of evidence, an affidavit must be made on personal knowledge. FED. R. EVID. 602. Here, Spindle submits his own affidavit in which he asserts, without other evidentiary support, that he "was diagnosed with severe atherosclerosis, hypertension, hyperlipidemia, coronary artery disease, peripheral vascular disease, and a history of deep vein thrombosis." (Dkt. #45-2). CKJ objected to that assertion, (Dkt. #47 at 4), and the Magistrate Court correctly determined that those assertions are hearsay, see (Dkt. #84 at 11-12 & n.3); see also Ripple v. Marble Falls Indep. Sch. Dist., 99 F. Supp. 3d 662, 678 (W.D. Tex. 2015) ("Although Plaintiff's description of his medical symptoms is within his personal knowledge and is not hearsay, Plaintiff's own recounting of his medical diagnoses and his doctor's orders, offered for proof of those diagnoses and orders, constitutes inadmissible hearsay." (emphasis added)). A diagnosis comes from a doctor who then communicates that diagnosis to its patient, as the passive construction in Spindle's affidavit implies. The doctor's out-of-court statement of Spindle's diagnoses is not subject to an exception. See, e.g., Portis v. Grand Trunk W. R. Co., 28 F.3d 1214, at *5 (6th Cir. 1994) ("In this case, defendant was not trying to admit statements made by plaintiff for the purposes of treatment or diagnosis but rather was trying to admit the medical opinions and diagnoses of doctors who had examined plaintiff. Because these opinions were not statements made for the purposes of diagnosis or treatment, they do not fall withinthe hearsay exception of Rule 803(4).").⁴ Therefore, Spindle's unsupported statements alleging his own diagnoses are hearsay and may not serve as summary-judgment evidence.

Spindle's only remaining impairment, "shortness of breath," is insufficient. To be sure, breathing is a major life activity. 29 C.F.R. § 1630.2(i)(1)(i). But the conclusory allegation of shortness of breath, without more, is insufficient to establish a substantial limitation on a major life activity, see Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (holding that asbestosis, which reduced the plaintiff's lung capacity by half and caused occasional shortness of breath, was not substantially limiting), particularly where Spindle has failed to provide any examples of shortness of breath or any explanation of how it substantially limits his abilities, see Lopez-Baca v. Geren, 599 F. Supp. 2d 744, 754 (W.D. Tex. 2008) (finding no substantial limitation where the plaintiff "provide[d] no...