Wilkerson v. Boomerang Tube, LLC

Decision Date15 October 2014
Docket NumberCIVIL ACTION NO. 1:12-CV-198
CourtU.S. District Court — Eastern District of Texas
PartiesJOE R. WILKERSON, Plaintiff, v. BOOMERANG TUBE, LLC, Defendant.

Pending before the court is Defendant Boomerang Tube, LLC's ("Boomerang") Motion for Summary Judgment (#20), in which it seeks summary judgment on Plaintiff Joe R. Wilkerson's ("Wilkerson") claims for employment discrimination under the Americans with Disabilities Act ("ADA") and workers' compensation retaliation under Texas Labor Code § 451.001. Having considered the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that Boomerang's motion for summary judgment should be GRANTED in part and DENIED in part.

I. Background
A. Injury

This case involves claims of employment discrimination and retaliation that Wilkerson allegedly experienced after being injured while working at Boomerang. Wilkerson began his employment with Boomerang on October 27, 2010, as a general laborer/material handler andbegan training to become a mill operator in November 2010. Wilkerson was officially promoted to mill operator in February 2011.1

On December 13, 2010, Wilkerson sustained a laceration on his left hand while operating the mill. The laceration became infected, and Wilkerson went to the emergency room for treatment on December 15, 2010. The next day, Wilkerson had an appointment with Dr. Paul Redman ("Redman"), a general physician. Wilkerson returned to work on December 17, 2010, on restricted duty with instructions from Redman not to use his left hand, and Wilkerson's supervisor, Richard Barroso ("Barroso"), put Wilkerson back to work at the mill on light duty. That day, Barroso assisted Wilkerson with anything Wilkerson ordinarily would have done with his left hand or with both hands.

While working the evening shift on December 17, 2010, hanging scarf2 fell on Wilkerson's right hand, requiring another trip to the emergency room for stitches and antibiotics. This injury was reported as a workers' compensation claim.3 The parties disagree as to whether Wilkerson was released by his physician on December 20, 2010, to return to work on full duty or light duty.Wilkerson alleges he returned to light duty for two weeks, while Boomerang claims Redman released Wilkerson to return to full duty on December 20, 2010.4 In any event, Wilkerson remained employed by Boomerang and resumed full duty work as a mill operator until sometime in April 2011,5 when he popped a ligament in his right hand and, as a result, was placed on light duty in anticipation of a scheduled surgery.

B. Termination

The condition of Wilkerson's right hand deteriorated, requiring him to have surgery on April 27, 2011. Prior to his surgery, on April 21, 2011, Wilkerson reported to work on light duty, with directions not to use his right hand. There is no dispute that Barroso and other Boomerang employees knew of Wilkerson's restrictions. The parties, however, offer conflicting stories of what happened on April 21, 2011—the day of Wilkerson's termination.

Wilkerson contends that when he arrived at work, Barroso asked him to "start mopping and sweeping offices and moving furniture and stuff around." After trying for about twenty minutes, Wilkerson decided he would be better able to wipe down some equipment with soap and water, and he headed toward the storeroom. Barroso intercepted him, however, and told him he needed to pick up the mop bucket, fill it, and begin mopping. Wilkerson requested a hose instead, to avoid lifting the bucket with one hand, but Barroso denied his request. Wilkerson tried to fillthe bucket for about fifteen to twenty minutes until he stopped and went to talk to Barroso. According to Wilkerson, he told Barroso: "Look, I'm not refusing to do this. I'm saying I don't feel safe doing it. I don't feel comfortable with one hand doing it. I'm afraid I'm going to hurt my other hand." Wilkerson then suggested that he wipe down the equipment instead, and Barroso again refused. At some point,6 Wilkerson asked Barroso if he could work in the storeroom, to which Barroso replied, "No, I feel like I gave you something safe to do that you could do with one hand." After another ten minutes of trying to mop and sweep, Wilkerson went back to Barroso, again telling him he was not refusing orders, but stating that he did not feel safe or comfortable mopping and sweeping. Barroso then asked Wilkerson to wait outside his office, and ten minutes later, Barroso terminated Wilkerson.

Boomerang provides a different account of the events of April 21, 2011. In an e-mail to his supervisors the next day, Barroso states that before Wilkerson's shift, "it was determined that [Barroso] would have [Wilkerson] cleaning the offices, breakrooms, etc." Barroso's e-mail explains that when Wilkerson arrived, the two "discussed the tasks that he was to perform," and Wilkerson left to get supplies and begin work. Fifteen minutes later, Barroso saw that Wilkerson had not begun working and, after approaching him, Wilkerson inquired, "Can't I just go help out in the storeroom like they said I was going to be doing?" Barroso then writes:

I brought him into the office and explained to him that he did not get to pick out what light duty work he performed and that when we decided the tasks for him, we considered the fact that he had limited use of his hand, and that there was no reason he could not perform what I asked him to do safely. He mentioned that he could not use a mop or broom with one hand, so I told him to go to the storeroom and get some Simple Green and a box of rags and start wiping down all of the restroom andbreakrooms' fixtures and walls. He asked again why he could not just go to the storeroom and work. I told him that he had the option of doing the tasks that I set forth or if he refused to do so, he was being insubordinate, and would give me no choice but to proceed with disciplinary measures and send him home.

After this discussion, Wilkerson left, only to return in ten minutes, saying to Barroso, "I'm just gonna go home because I'm not going to do this stuff with one hand." Barroso emphasized that "going home" meant Wilkerson would face disciplinary action and asked him to wait outside. After consulting with his supervisors on the telephone, Barroso called Wilkerson back into his office and informed Wilkerson that Boomerang was terminating him, effective immediately. At deposition, when asked about the e-mail, Barroso stated: "I did explain to him I fired him for insubordination because I was asking him to do a job that he refused to do." Furthermore, Kenneth Long ("Long"), the General Manager at Boomerang, supported Barroso's testimony:

I recall that [Barroso] asked me, "Should we let him go work in the storeroom?"
And my response was, "We do not allow employees to pick their tasks that need to be done. We pick them for them. As long as it meets his restrictions, then he needs to take care of the tasks that we assign."

And he said that he was refusing to do that and wanted to go home. And [Barroso] asked me could he terminate him, and I said, "Yes, you can proceed with termination for refusal to do the work."

Following these events, Wilkerson filed suit against Boomerang on April 24, 2012. Wilkerson claims that Boomerang violated the ADA by intentionally discriminating against him because of his disability—his injured right hand. Additionally, Wilkerson claims that Boomerang terminated him in retaliation for his filing a workers' compensation claim in good faith in violation of the ADA and Texas Labor Code § 451.001.

Boomerang responds that Wilkerson's disability and his workers' compensation claim played no role in his termination. Rather, it claims the decision was based on Wilkerson's insubordination for refusing to do the tasks Barroso asked him to perform. Also, contrary to Wilkerson's assertions, Boomerang alleges that Wilkerson is not a "qualified individual" under the ADA and therefore is not entitled to the Act's protections.

Boomerang filed the instant motion on April 11, 2014, contending that there is no issue of material fact to preclude summary judgment on Wilkerson's claims. Specifically, Boomerang alleges that Wilkerson has not produced evidence establishing that he is a qualified individual under the ADA or that his workers' compensation claim played any part in Boomerang's decision to terminate him. Wilkerson responds that fact issues make summary judgment inappropriate.

II. Analysis
A. Summary Judgment Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 407 (5th Cir. 2012); QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th Cir. 2009).

"A fact is material only if its resolution would affect the outcome of the action . . . ." Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009); accord Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012); Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005). "'Factual disputes that are irrelevant or unnecessary will not be counted.'" Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "An issue is 'genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham."...

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