Opinion
NO. 1:11-CV-248
07-17-2012
MELVIN C. KEEL, JR., v. WAL-MART STORES, INC.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is assigned to the Hon. Ron Clark, United States district judge, and was referred for pretrial matters to the Hon. Earl S. Hines, United States magistrate judge, pursuant to a Referral Order entered on May 17, 2011. On August 9, 2011, the case was reassigned to the undersigned United States magistrate judge. Pending is Defendant Wal-Mart Stores, Inc.'s (Wal-Mart) "Motion for Summary Judgment" (Docket No. 39). Wal-Mart argues that dismissal of pro se Plaintiff Melvin C. Keel, Jr.'s (Keel) employment discrimination claims is warranted because the claims are barred by the statute of limitations and because there is no genuine dispute as to any material fact. For the reasons stated below, there is a genuine dispute regarding the limitations issue but there are no genuine disputes regarding Keel's claims. Accordingly, Wal-Mart's motion should be granted.
According to Wal-Mart, its correct legal name is Wal-Mart Stores Texas, LLC, which is the operating entity for Store No. 214 in Jasper, Texas, where the Plaintiff was employed. (Mot. Summ. J., at 1, Docket No. 39.)
I. Background
This factual background is based on the parties' pleadings and the summary judgment evidence.
A. Employment with Wal-Mart
The Plaintiff, Melvin C. Keel, Jr., is a white male who suffers from dyslexia and illiteracy allegedly due to complications that occurred at birth. On February 9, 2007, Wal-Mart hired Keel as a part-time deli sales associate. Shortly thereafter, Keel gave a customer the wrong cut of meat. Wal-Mart investigated the incident and learned that Keel was unable to read or write. Wal-Mart offered Keel a position as a part-time dry grocery sales associate, which he accepted. In April 2007, Wal-Mart approached Keel with an opportunity to move to a full-time position on the overnight maintenance crew. The position's responsibilities included: sweeping the store floors, operating the scrubber machine, mopping the floors, and operating the buffer machine. Wal-Mart expected the overnight crew to finish these duties by 7:00 a.m. the following morning. Keel accepted Wal-Mart's offer on April 26, 2007.
There is very little evidence in the record describing the extent or cause of Keel's disability. In a previous document, Keel represented that his "disability is clearly noted" in his Equal Employment Opportunity Commission file, but neither the file nor his medical records have actually been provided to the Court. (See Docket No. 25, at 1.) Nonetheless, it appears to be undisputed that Keel is disabled within the meaning of the Americans with Disabilities Act. (See Mot. Summ. J., at 12-13, Docket No. 39.) Based on the available evidence, the undersigned's independent review also confirms that Keel is likely disabled under the act. See 42 U.S.C. § 12102(2)(A) (including "learning" and "reading" in a non-exhaustive list of major life activities).
Wal-Mart has a "Coaching for Improvement" policy that serves as a guide when an employee is not meeting the requirements and expectations of his position. The policy sets forth four levels of potential disciplinary actions: verbal coaching, written coaching, decision-making day coaching, and termination. If an employee has been given a decision-making day coaching, any failure to perform up to Wal-Mart's expectations within the following twelve months may result in immediate termination.
On June 27, 2007, Keel received verbal coaching from managers Roger Michel and Brian Kiefer. Keel received the coaching because he was performing his duties too slowly. In their report, Keel's managers noted that he was only cleaning half of the sales floor during his shift. Two weeks later, on July 8, 2007, Keel received written coaching from managers Betty Shepherd and James Holloway after they noticed that Keel was still failing to complete his duties in a timely manner.
On July 11, 2007, Keel's brother-in-law, Frank Matin, wrote a letter on Keel's behalf to two of Keel's managers. The letter complained of the conduct of Keel's supervisor, Lupe Martinez, who was allegedly verbally abusive to Keel. The letter states: "She regularly swears at me calling me 'a fat lazy [m]otherf*****'. . . . On my last shift (last night), she shouted that I was 'f***ing lazy WHITE TRASH." (Mot. Summ. J., Ex. 18, Docket No. 39) (emphasis in original.) Finally, the letter alleges that Martinez's conduct is "significantly affecting my work relations" and that "I cannot stand this abuse anymore." (Id.) Wal-Mart investigated the allegations in this letter by interviewing Keel's co-workers. Allegedly, Wal-Mart did not find any corroborating evidence.
On August 14, 2007, Keel received a verbal coaching from managers Brian Kiefer and James Holloway. The basis for this coaching was that Keel and other members of the floor crew left the store without finishing the floors. Keel's managers placed him on decision-making day coaching.
The following day, Keel's brother-in-law attempted to send a second letter to Keel's manager. This letter references the first letter and states that Keel "[has] been left to work in the same degrading and hostile work environment." (Id., Ex. 27.) The letter further provides that Keel is "feeling the backlash of placing the complaint, with regular verbal abuse by the same person, which is leading to lots of false complaints to make me look like the delinquent party . . . . By me informing you of my position, all I have received is punishment as a 'Whistleblower.'" (Id.) Wal-Mart never signed for the letter, and it was returned to Keel.
On August 22, 2007, one of Keel's managers, Brian Kiefer notified co-manager Walter Lashley that Keel failed to complete his assigned tasks by the end of his shift. Brian Keifer also recommended that Keel's employment should be terminated. In accordance with this recommendation, Walter Lashley terminated Keel's employment.
On August 31, 2007, Keel delivered two letters to Wal-Mart's district office in Lumberton, Texas. One letter was the August 15, 2007 letter that was returned to him. The other letter was dated August 28, 2007. This latter letter complains that Keel "was fired for Whistleblowing and nothing else." (Mot. Summ. J., Ex. 30, Docket No. 39.) The letter also alleges that Wal-Mart should have accommodated his disability by assigning someone to read for him when he worked in the deli department. Wal-Mart conducted an investigation into Keel's allegations but was allegedly unable to substantiate them.
B. Charge of Discrimination with the EEOC
On October 30, 2007, Keel filed his "Charge of Discrimination" with the Equal Employment Opportunity Commission (EEOC), complaining that "I have been discharged because of my disability and race." (Id., Ex. 44.) The charge also states that Wal-Mart retaliated against him for complaining of the discrimination and that it failed to reasonably accommodate his disability. Finally, the charge provides that Wal-Mart forced Keel to work in "a racially hostile work environment." (Id.)
C. The Instant Lawsuit
Keel filed the instant lawsuit on May 17, 2011. Keel's pro se "Complaint" (Docket No. 1) alleges discrimination on the basis of his disability. In the pleading, the lines next to "race" and "color" are unchecked, but a handwritten line labeled "disability" is checked. Additionally, the line next to "terminated plaintiff's employment" is checked, and Keel wrote "retaliation" on the blank line next to "other." Finally, Keel alleges that Wal-Mart issued him substandard equipment during his employment. Attached to the complaint is the charge of discrimination.
A court should liberally construe a pro se plaintiff's complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993); Moore v. Sawyer, No. 1:10-cv-310, 2010 WL 6004375, at *1 (E.D. Tex. July 26, 2010) (Hines, J.). Given this interpretative rule, the undersigned construes the following claims from Keel's charge of discrimination and complaint: (1) discrimination (disparate treatment) under Title VII and the Americans with Disabilities Act (ADA); (2) retaliation under Title VII and the ADA; (3) failure to accommodate under the ADA; and (4) hostile work environment under Title VII and the ADA. Although Wal-Mart disputes whether Keel actually alleges all of these claims, Wal-Mart addresses each potential claim in its summary judgment motion.
Pending is Wal-Mart's summary judgment motion. Wal-Mart argues that this lawsuit should be dismissed for two reasons: (1) Keel's claims are barred by the statute of limitations; and (2) there are no genuine disputes regarding the claims on which Keel would be entitled to relief. Keel filed a "Response" (Docket No. 43) comprised almost entirely of non-legal objections to Wal-Mart's summary judgment evidence. Subsequently, Keel filed a motion (Docket No. 44) requesting that the Court order Wal-Mart to produce outstanding discovery. The undersigned entered an order (Docket No. 46) directing the parties to meet and confer in an attempt to resolve the discovery issues. When the parties informed the Court that the issues had been resolved, the undersigned entered an additional order (Docket No. 50) granting Keel leave to file a sur-reply supported by the recently produced discovery. Keel did not file a sur-reply and has not produced any summary judgment evidence supporting his claims.
As discussed below, there is a genuine dispute regarding Wal-Mart's limitations defense but there are no genuine disputes regarding Keel's claims. Therefore, this lawsuit should be dismissed with prejudice.
II. Jurisdiction/Venue
This court has subject matter jurisdiction predicated upon federal question jurisdiction. See 42 U.S.C. § 2000e-5(f)(3). Venue is proper because events giving rise to the above claims occurred within the confines of this district. See id.
III. Summary Judgment Standard
Summary judgment shall be rendered when 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); accord United States ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 326 (5th Cir. 2011). A dispute is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it is relevant or necessary to the ultimate conclusion of the case. Id.
The movant has the burden to identify "each claim or defense - or the part of each claim or defense - on which summary judgment is sought." Fed. R. Civ. P. 56(a). "If the dispositive issue is one on which the non-moving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim." Norwegian Bulk Transp. A/S v. Int'l Marine Terminals P'Ship, 520 F.3d 409, 412 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The movant must support its assertion by "citing to particular parts or materials in the record, . . . showing that the materials cited do not establish the . . . presence of a genuine dispute, or [showing] that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The citations to the summary judgment evidence should be specific. See Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004). Summary judgment must be denied when the movant fails to meet its initial burden, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant satisfies its burden, the burden then shifts to the nonmoving party to show that specific facts exist over which there is a genuine dispute. Id. (citing Celotex, 477 U.S. at 325). Like the movant, the nonmovant must satisfy its burden through specific citations to the summary judgment evidence. See Fed. R. Civ. P. 56(c)(1); Smith, 391 F.3d at 625. "If somewhere in the record there is evidence that might show a dispute of material fact, the district court needs to be pointed to that evidence as opposed to having to engage in an extensive search." Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). "Conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden . . . ." Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quoting Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996)) (internal quotations omitted). "[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000).
As previously discussed, Keel did not provide any summary judgment evidence purportedly supporting his claims. Instead, he disagrees with Wal-Mart's characterizations of its summary judgment evidence and reasserts conclusory allegations concerning his claims. In light of Keel's pro se status, the undersigned has searched through the entire record to determine whether there are specific facts over which there are genuine disputes. For the reasons stated below, there is a genuine dispute regarding Wal-Mart's limitations defense but there are no genuine disputes regarding Keel's claims.
IV. Statute of Limitations
Wal-Mart argues that Keel's claims are barred by the statute of limitations because he filed suit more than ninety days after he is presumed to have received his Notice of Right to Sue letter. Keel contends that he did not actually receive the letter until February 18, 2011, and therefore, he timely filed suit. For the reasons stated below, there is a genuine dispute regarding this issue.
A. Legal Standard
A plaintiff may bring a Title VII claim in federal court only after he has exhausted his administrative remedies before the EEOC. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). A plaintiff must also comply with the ADA's administrative prerequisites before filing a claim in federal court against his former employer for violation of the ADA. Wesley v. Dallas Indep. School Dist., No. 3-08-CV-2025, 2009 WL 193786, at *2 (N.D. Tex. Jan. 27, 2009) (citing Day v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996)). Under both Title VII and the ADA, a plaintiff has ninety days to bring suit in federal court after receipt of a statutory notice of right to sue from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (2011) (setting forth the ninety-day period for Title VII); 42 U.S.C. § 12117(a) (2011) (incorporating by reference the procedures applicable to Title VII for actions under the ADA); Taylor, 296 F.3d at 379 (applying the ninety-day period to a claim under Title VII); Dade v. Sw. Bell. Tel. Co., 942 F.Supp. 312, 317 (S.D. Tex. 1996) (applying the ninety-day period to a claim under the ADA). The ninety-day period is treated as a statute of limitations. Hunter-Reed v. City of Houston, 244 F.Supp.2d 733, 740 (S.D. Tex. 2003) (citing Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985)).
Generally, the ninety-day period commences when the notice of right to sue is received at the address supplied to the EEOC by the claimant. Taylor, 296 F.3d at 379; Espinoza, 754 F.2d at 1249. When the parties dispute the date upon which a right-to-sue letter is received, the Fifth Circuit has presumed that the letter was received on or prior to the seventh day after the letter was mailed. Taylor, 296 F.3d at 380. "A threshold question for the application of the mailbox rule is whether there is sufficient evidence that the letter was actually mailed." Duron v. Albertson's LLC, 560 F.3d 288, 290 (5th Cir. 2009) (quoting Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir. 2007)) (internal quotations omitted). This evidence may consist of a sworn statement that the letter was actually mailed or circumstantial evidence, such as the customary mailing practices used in the sender's business. Id. at 290-91.
However, the Fifth Circuit has not explicitly adopted a seven-day presumption of receipt for every case in which the receipt date is disputed. See Taylor, 296 F.3d at 380. Accordingly, it is still unresolved in the Fifth Circuit whether a three, five, or seven-day presumption is controlling. See id.
If such evidence is presented, a plaintiff can rebut the presumption of receipt by offering some evidence to demonstrate that he did not receive the letter within the allotted time. See Morgan v. Potter, 489 F.3d 195, 197 n.1 (5th Cir. 2007) (holding that the plaintiff failed to rebut an explicit five-day presumption in a final-decision letter). Neither the Fifth Circuit nor district courts within the circuit have elaborated upon the amount or type of evidence required to rebut the presumption of receipt. See id.; see, e.g., Mikel v. Conn's Appliances, No. 1:07-cv-598, 2007 WL 4333340, at *1 n.1 (E.D. Tex. Dec. 7, 2007). However, the Fifth Circuit's sister circuits have explained that the presumption of receipt may be rebutted by an affidavit stating personal knowledge of the receipt date. See Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1126 (9th Cir. 2007); Lozano v. Ashcroft, 258 F.3d 1160, 1166 (10th Cir. 2001); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996).
B. Analysis
In the present case, the parties dispute the date on which Keel received his Notice of Right to Sue letter. According to Wal-Mart, the EEOC mailed a copy of its Notice of Right to Sue letter to Keel on July 29, 2009, and in August 2010. (Mot. Summ. J., at 9, Docket No. 39.) Wal-Mart asserts that a presumption of receipt should apply from either of those dates. (Id.) For his part, Keel contends that he did not receive a copy of his Notice of Right to Sue letter until February 18, 2011. (Resp., at 4, Docket No. 10.) Keel filed the instant lawsuit on May 17, 2011 - eighty-eight days after he received that letter.
To determine whether a presumption of receipt should apply to either of the first two letters purportedly mailed by the EEOC, the Court must analyze whether there is sufficient evidence showing that the letters were actually mailed. Duron, 560 F.3d at 290. In the present case, there is no such evidence. In an e-mail to Keel's brother, the deputy director of the Houston office of the EEOC, Martin Ebel, wrote that neither of the letters were sent via certified mail, return receipt requested, because the office's standard practice was to send the letters by regular first class mail in order to minimize expenses. (Mot. Summ. J., Ex. 52.) Moreover, during his deposition, Mr. Ebel testified that "[t]here is typically no proof of a mailing other than the copy of what was mailed and the date that's on it." (Id., Ex. 4, at 21:20-22.) Likewise, with respect to the July 29, 2009 letter, Mr. Ebel could not testify that the office actually followed its typical practice of mailing the letter on the stamped date. (Id, at 43:19-24.) In this way, the only evidence before the Court is Mr. Ebel's generalized testimony that the Houston office typically mails a letter on the stamped date. These weak assertions do not entitle Wal-Mart to a presumption of receipt in the summary judgment context. See Custer, 503 F.3d 420-22.
Furthermore, assuming arguendo that there is sufficient evidence showing that the Notice of Right to Sue letters were actually mailed in 2009 and 2010, Keel has rebutted the presumption of receipt through his sworn statement that he did not receive the letter until February 18, 2011, and his deposition testimony that he called the EEOC daily until he received the letter. (Resp., at 4, Docket No. 10; Mot. Summ. J., Ex. 1, 136:6-137:18.) See Morgan, 489 F.3d at 197 n.1; accord Payan, 495 F.3d at 1126; Lozano, 258 F.3d at 1166; Sherlock, 84 F.3d at 526.
Finally, Wal-Mart argues that it is entitled to a presumption of receipt because the presumption is founded upon the "fault doctrine, which requires that a discrimination claimant take all reasonable steps to ensure that he will receive his letter in the mail." (Mot. Summ. J., at 10, Docket No. 39) (citing St. Louis v. Alverno College, 744 F.2d 1314, 1316-17) (7th Cir. 1984.) Wal-Mart asserts that Keel failed to exercise diligence in ensuring that the EEOC would mail his Notice of Right to Sue letter to his correct address, which changed after he filed his charge of discrimination. (Id. at 9-10.)
When the Fifth Circuit adopted the presumption-of-receipt doctrine, it did not explicitly adopt the fault doctrine as well. See Taylor, 296 F.3d at 379-80. Therefore, the jurisprudence is unclear as to whether the fault doctrine is applicable in this circuit. See id. Nonetheless, in the event that the doctrine applies, there is a genuine dispute in the present case as to whether Keel exercised due diligence in informing the EEOC of his changed address. During his deposition, Keel testified that he made daily phone calls to the EEOC from July 29, 2009, through February 2011. (Mot. Summ. J., Ex. 1, at 135:19-137:18, Docket No. 39.) Wal-Mart proffers the testimony of EEOC employees who claim that they never spoke with Keel, but Keel's sworn deposition testimony is sufficient to create a genuine dispute as to this issue. See C.R. Pittman Constr. Co., Inc. v. National Fire Ins. Co. of Hartford, 453 F.App'x 439, 443 (5th Cir. 2011) (holding that a non-conclusory, self-serving affidavit was sufficient to create a fact issue). For these reasons, Wal-Mart is not entitled to summary judgment on its limitations defense.
V. Summary Judgment Burdens in Employment Discrimination or Retaliation Context
A distinct subset of analytical principles applies when a motion for summary judgment is filed in an employment discrimination or retaliation case. A plaintiff-employee may prove discrimination or retaliation either by direct or circumstantial evidence. See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). "Direct evidence is evidence that, if believed, proves the fact of discriminatory [or retaliatory] animus without inference or presumption." West v. Nabors Drilling, USA, Inc., 330 F.3d 379, 384 n.3 (5th Cir. 2003) (internal quotations omitted).
When, as here, a plaintiff-employee relies on circumstantial evidence, courts within the Fifth Circuit apply a modified McDonnell-Douglas framework that involves shifting burdens of production to determine whether an action warrants a plenary trial. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005) (describing the Fifth Circuit's modified McDonnell-Douglas approach to employment discrimination cases where a mixed-motive analysis might apply). Under the McDonnell-Douglas framework, the plaintiff-employee has the initial burden to make a prima facie showing of discrimination or retaliation. McInnis v. Alamo Cmty. College Dist., 207 F.3d 276, 279-80 (5th Cir. 2000). To satisfy this burden, the plaintiff need only make a very minimal showing. Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)) (internal quotations omitted).
In the analysis below, the undersigned describes the different prima facie burdens for Keel's discrimination and retaliation claims under Title VII and the ADA.
Once the plaintiff-employee makes this showing, the burden shifts to the defendant-employer to articulate a legitimate, non-discriminatory or non-retaliatory reason for the adverse employment action. McInnis, 207 F.3d at 280. "The defendant may meet this burden by presenting evidence that if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Nichols, 81 F.3d at 41 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993)) (internal quotations omitted). This burden does not involve a credibility assessment. Reeves, 530 U.S. at 142.
If the defendant-employer articulates a legitimate non-discriminatory or non-retaliatory reason for the adverse employment action, the burden shifts back to the plaintiff-employee to offer sufficient evidence to create a genuine dispute that the defendant-employer's reason was either: (1) a mere pretext for unlawful discrimination or retaliation (pretext alternative); or (2) true, but only one of the reasons for its conduct, and another motivating factor is the plaintiff-employee's protected characteristic (mixed-motive[s] alternative). Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). The plaintiff satisfies this burden if a rational fact finder could find in his favor. See Hernandez,670 F.3d at 660 (citing Patel v. Midland Mem'l Hosp. & Med. Ctr., 298 F.3d 333, 342-43 (5th Cir. 2002)).
Under the pretext alternative approach, the plaintiff must show evidence of disparate treatment or evidence demonstrating that the employer's explanation is false or unworthy of credence. See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). "Evidence demonstrating that the employer's explanation is false or unworthy of credence, taken together with the plaintiff's prima facie case, is likely to support an inference of discrimination without further evidence of [the] defendant's true motive." Id. "The 'rare' instances in which a showing of pretext is insufficient to establish discrimination are (1) when the record conclusively reveals some other, nondiscriminatory reason for the employer's decision, or (2) when the plaintiff creates only a weak issue of fact as to whether the employer's reason was untrue, and there was abundant and uncontroverted evidence that no discrimination occurred." Id. (citing Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000)).
Under the mixed-motive approach, the plaintiff must show that his protected characteristic was a motivating factor in the employment decision. Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (citing Rachid, 736 F.3d at 312). If the plaintiff makes such a showing, then the defendant must "prove that the same adverse employment decision would have been made regardless of discriminatory animus." Id, (quoting Rachid, 736 F.3d at 312) (internal quotations omitted). The plaintiff prevails if the employer fails to carry this burden. Id,
In the analysis below, the undersigned applies this burden-shifting framework to Keel's discrimination and retaliation claims under Title VII and the ADA.
VI. Race and Disability Discrimination (Disparate Treatment)
A. Race Discrimination
To establish a prima facie case of race discrimination under Title VII, the plaintiff must show that: (1) he belongs to a protected group; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees outside the protected group. See McDonnell Douglas Corp,, 411 U.S. at 802; McCoy, 492 F.3d at 556; Rachid, 376 F.3d at 309. There is no evidence in the record indicating that Keel was subject to adverse employment action because of his race. In fact, the only place in the record with such an allegation is Keel's charge of discrimination, which states: "I have been discharged because of my . . . race." (See Compl., at 5, Docket No.1) The undersigned merely addresses this claim in the interest of caution because of the above statement. Accordingly, if Keel alleges a claim for disparate treatment under Title VII, the claim should be dismissed because there is no evidence supporting it.
B. Disability Discrimination
To establish a prima facie case of discrimination under the ADA, the plaintiff-employee must prove that: (1) he was disabled; (2) he was qualified for the job; (3) he was subjected to an adverse employment action because of his disability; and (4) he was treated less favorably than non-disabled employees. McInnis, 207 F.3d at 280. For discrimination claims under Title VII and the ADA, only "ultimate employment decisions," such as hiring, granting leave, discharging, promoting, or compensating, constitute adverse employment action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); McKay v. Johanns, 265 F.App'x 267, 268-69 (5th Cir. 2008); McCoy, 492 F.3d at 560.
Keel believes that Wal-Mart engaged in disability discrimination by transferring him from the deli to the grocery, transferring him from the grocery to the overnight maintenance crew, and terminating his employment. (Mot. Summ. J., Ex. 1, at 149:24-152:15, Docket No. 39.) All three arguments are without merit.
First, Keel has not satisfied his burden to show that he was qualified for the deli sales position. See Burch v. City of Nacogdoches, 174 F.3d 615, 619-20 (5th Cir. 1999); Chandler v. City of Dallas, 2 F.3d 1385, 1394 (5th Cir. 1993). The Fifth Circuit applies a two-part test to determine whether an individual is qualified for the job in question: (1) whether the individual could perform the essential functions of the job - those that bear more than a marginal relationship to the job at issue; and (2) if (but only if) the individual is not able to perform the essential functions of the job, whether any reasonable accommodation would enable him to perform those functions. Chandler, 2 F.3d at 1393-94.
The ADA provides that: "The term 'Reasonable Accommodation' may include— (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9). The federal regulations define the term "reasonable accommodation," in part, as "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(ii).
Here, the undisputed evidence reveals that the duties of the deli sales position require the employee to read, write, and understand printed materials. (Mot. Summ. J., Ex. 7, Docket No. 39.) The undisputed evidence further demonstrates that Keel admitted he could not read or write after he gave a customer the wrong cut of meat. (Id., Ex. 1, at 35:5-19, 36:5-11; Ex. 8.) After he was terminated, Keel asserted that Wal-Mart should have assigned someone to read for him while he worked in the deli. (Id., Ex. 30.) Such an accommodation would have been unreasonable because "[t]he ADA does not require an employer to relieve an employee of essential functions of his or her job, modify those duties, reassign existing employees to perform those jobs, or hire new employees to do so." Burch, 174 F.3d at 621; accord Jefferson v. MillerCoors, L.L.C., 440 F.App'x 326, 329-30 (5th Cir. 2011); Newman v. Chevron U.S.A., 979 F. Supp. 1085, 1091 (S.D. Tex. 1997) ("As this Court has stated in the past: 'It is not reasonable to require an employer to have two people doing one person's job in the name of an accommodation.'"). Furthermore, there is no evidence demonstrating that Keel actually requested an accommodation during his employment. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 n.4 (5th Cir. 1999); accord Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011) (quoting E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621 (5th Cir. 2009)). Accordingly, Wal-Mart's decision to transfer Keel to the grocery sales position is non-actionable.
Second, the transfer of Keel from the dry grocery sales position to the overnight maintenance crew does not constitute adverse employment action because Keel has not shown how the transfer was adverse. "An employment transfer may qualify as an adverse employment action if the change makes the job objectively worse." Cooper v. United Parcel Servs., 368 F.App'x 469, 474 (5th Cir. 2010) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004) (quoting Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003))) (internal quotations omitted). Here, the undisputed evidence reveals that the transfer made Keel a full-time employee and increased his rate of pay. (Mot. Summ. J., Ex. 1, at 44:24-45:4, Docket No. 39; Ex. 13.) Additionally, during his deposition, Keel was unable to advance a single reason why the transfer was discriminatory. (Id, at 151:8-20.) Thus, Wal-Mart's decision to transfer Keel to the overnight maintenance crew is also non-actionable.
Finally, Keel testified during his deposition that he does not believe his employment was terminated because of his disability. (Id. at 152:13-15.) Assuming arguendo that there is evidence of a causal connection between the alleged disability discrimination and the termination of his employment, there is no evidence showing that Keel was treated less favorably than similarly-situated non-disabled employees under nearly identical circumstances. In fact, the record does not even contain an allegation by Keel that Wal-Mart did not terminate a non-disabled employee for similar misconduct. For these reasons, Keel's disparate treatment claim under the ADA should be dismissed.
The August 15, 2007 letter sent to Keel's managers on his behalf states: "I am sure if I had been an African American worker who had placed such a complaint, or a woman placing a complaint about sexual discrimination, this matter would have been looked at in a much more serious nature and they would not have been forced to stay in the same environment." (Mot. Summ. J., Ex. 27, Docket No. 39.) This allegation does not concern an adverse employment action within the context of Keel's disparate treatment claims. See White, 548 U.S. at 67. Instead, the allegation focuses on Wal-Mart's alleged failure to transfer him to a different department within the context of his hostile work environment claims. Furthermore, even if the allegation in the letter was relevant to Keel's disparate treatment claims, there is no summary judgment evidence supporting the proffered hypothetical.
VII. Retaliation
Keel argues that he was retaliated against for complaining about Lupe Martinez's allegedly abusive behavior towards him. For the reasons stated below, there are no genuine disputes concerning Keel's retaliation claims under Title VII and the ADA.
A. Legal Standard
To establish a prima facie case of retaliation under Title VII or the ADA, the plaintiff must demonstrate that: (1) he engaged in protected activity; (2) he was subject to adverse employment action; and (3) there is a causal link between the protected activity and the adverse employment action. Hernandez, 670 F.3d at 657; Seamen v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999); Kebiro v. Wal-Mart Stores, Inc., 568 F.Supp.2d 747, 753 (E.D. Tex. 2005) (citing Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996)).
An employee has engaged in a protected activity if: (1) he has opposed a practice prohibited by Title VII or the ADA; or (2) has participated in any manner in a proceeding under the statutes. See Haynes v. Penzoil Co., 207 F.3d 296, 299 (5th Cir. 2000); Seaman, 179 F.3d at 301. Protected activity may consist of an internal complaint to management regarding prohibited conduct. See, e.g., Wiltz v. Christus Hosp. St. Mary, No. 1:09-cv-925, 2011 WL 1576932, at *11 (E.D. Tex. Mar. 10, 2011).
For a retaliation claim under Title VII and the ADA, an adverse employment action is that which a reasonable employee would find materially adverse, meaning that the action might have "dissuaded a reasonable worker from making or supporting a charge of discrimination." White, 548 U.S. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)); accord Hernandez, 670 F.3d at 657 (citing Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008)). This materiality requirement separates "significant from trivial harms." White, 548 U.S. at 68. "[P]etty slights, minor annoyances, and simple lack of good manners" are non-actionable. Aryain, 534 F.3d at 484. The court's focus is on the final decisionmaker. Hernandez, 670 F.3d at 657. "Nevertheless, when the person conducting the final review serves as the 'cat's paw' of those who were acting from retaliatory motives, the causal link between the protected activity and adverse employment action remains intact." Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002). In the Fifth Circuit, the "causal link" element of a plaintiff's prima facie case is not held to a "stringent" standard. Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996); accord Nunley v. City of Waco, 440 F.App'x 275, 281 (5th Cir. 2011) (unpublished).
Once the plaintiff satisfies his prima facie burden and the employer presents evidence showing that it acted properly, "the fact-finder must decide whether retaliation was the but-for cause for the employer's action." Hernandez, 670 F.3d at 657 (citing Long, 88 F.3d at 305 n.4).
[The] plaintiff must demonstrate a conflict in substantial evidence on the ultimate issue of but for causation. Evidence is substantial if it is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions. Temporal proximity, standing alone, is not enough.Id. at 658 (quotations and citations omitted).
B. Analysis
Keel believes that he was coached and ultimately terminated in retaliation for complaining of Lupe Martinez's allegedly abusive behavior. (See Mot. Summ. J., Ex. 1, at 77:4-6; Exs. 27, 30, Docket No. 39.) During his deposition, Keel testified that he started complaining about Lupe Martinez's conduct soon after he was transferred to the overnight maintenance crew in April 2007. (Id. at 82:6-15.) However, the provided deposition excerpts do not indicate whether the complained-of conduct implicated Keel's race or disability or whether the complaints were merely generalized grievances about Lupe Martinez. (See id.) Accordingly, Keel's alleged "daily" complaints do not constitute protected activity because there is no evidence demonstrating that Keel made them in opposition to a practice prohibited by Title VII or the ADA. See Haynes, 207 F.3d at 299.
The only actionable protected activity in this case is the July 11, 2007 letter sent to Keel's managers on his behalf. The letter states that "[Lupe] regularly swears at me calling me a 'fat lazy Motherf*****. . . . On my last shift (last night), [Lupe] shouted that I was 'f***** lazy WHITE TRASH.'" (Id., Ex. 18) (emphasis in original.) Wal-Mart received the letter and investigated the allegations contained in it, but Wal-Mart was allegedly unable to substantiate any of Keel's allegations. (Id., Exs. 19-25.) Subsequently, Keel received coaching on August 14, 2007, and was terminated on August 22, 2007, for failing to timely complete his duties. (Id., Exs. 2, 26, 29.)
There is no causal connection between the letters dated August 15, 2007, and August 28, 2007, and the termination of Keel's employment because Wal-Mart did not receive these letters until after it had terminated Keel's employment. (See Mot. Summ. J., Ex. 1, at 100:4-102:6, 107:18-108:10; Exs. 2, 29.) Therefore, these letters do not support Keel's retaliation claim.
The July 11, 2007 letter does not constitute protected activity under the ADA because it does not oppose any practice prohibited by the statute. See Haynes, 207 F.3d at 299. There is no evidence showing that Keel interpreted the "fat lazy Motherf*****" comment to implicate his disability. See Sams v. Northcoast Behavioral Health Care Cntr., No. 5:06CV3040, 2007 WL 4300118, at * 16 (N.D. Ohio Dec. 5, 2007) (questioning whether "fat" and "lazy" comments had anything to do with the plaintiff's race in the hostile work environment context); Garnica v. Zale Lipshy Univ. Hosp., No. 3:03-cv-0637, 2004 WL 330675, at *6 (N.D. Tex. Feb. 10, 2004) (considering the comment "fat bitch" as a racial slur when there was additional evidence explaining why the plaintiff interpreted the comment as a slur). Nonetheless, the July 11, 2007 letter does constitute protected activity under Title VII because it explicitly complains of a racially disparaging comment. Cf., Wiltz, 2011 WL 1576932, at *11 (holding that an internal complaint to management did not constitute protected activity when it did not complain of race discrimination).
Assuming arguendo that Keel has satisfied his initial burden of establishing a prima facie case of retaliation under Title VII, Wal-Mart has proffered a legitimate, non-discriminatory reason for coaching him and terminating his employment. Wal-Mart explains that Keel was coached and terminated because of his repeated subpar performance. This explanation is supported by Keel's deposition testimony, the memoranda of Keel's verbal and written coachings, the affidavit of manager Walter Lashley, the memorandum of Keel's exit interview, the internal statement of assistant manager James Holloway, and the internal statement of assistant manager Brian Kiefer. (Mot. Summ. J., Ex. 1, at 54:10-57:4, 80:19-24, 154:1-15; Exs. 2, 15, 16, 17, 27, 29, 40, 41, Docket No. 39.) "Even an incorrect belief that an employee's performance is inadequate constitutes a legitimate, non-discriminatory reason." Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). Therefore, the burden shifts back to Keel to demonstrate a conflict in substantial evidence on the ultimate issue of but-for causation. See Hernandez, 670 F.3d at 658 (citing Long, 88 F.3d at 308).
Keel has not established a conflict in substantial evidence that "but for" the July 11, 2007 letter he would not have been coached on August 14, 2007, nor terminated on August 22, 2007. In other words, Keel has offered no evidence to rebut Wal-Mart's explanation that he was coached and terminated for failing to complete his duties in a timely manner. See id. Keel attempts to show pretext by arguing that he is not at fault for repeatedly failing to finish cleaning the floors by his morning deadline. (See Mot. Summ. J., Ex. 1, 61:4-62:5, Ex. 27, Docket No. 39.) He testified during his deposition that he was given a faulty scrubber machine that prevented him from timely completing his duties. (Id.) He further testified that he complained about the machine, but it was never fixed or replaced. (Id.)
Assuming arguendo that Keel was given a faulty scrubber machine, there is no evidence connecting the machine to his failure to timely complete his duties in August 2007. Instead, the undisputed summary judgment evidence shows that Keel failed to complete his duties in a timely manner regardless of the task assigned. For example, the memorandum of Keel's August 14, 2007 coaching states: "Melvin and the floor crew were leaving the store with the floors [] unfinished. They are leaving water and dirty floors . . . ." (Id., Ex. 26.) The memorandum of Keel's exit interview states that "Melvin has been coached and talked to number of times he just don't have the ini[t]iative of wanting to do better." (Id., Ex. 29.) Co-manager Walter Lashley's affidavit provides that "[n]o matter what duty was assigned to Mr. Keel, it was reported to me that he demonstrated a lack of interest in his job and getting his tasks done on time." (Id., Ex. 2.) Likewise, assistant manager James Holloway's statement provides:
If Melvin had a problem of any kind, he never informed me of it and never complained that anything was wrong or that he could not complete his job duties . . . . I even put Melvin on each piece of the equipment that the floor uses including but not limited to; the mop, scrubber, and the buffer and he could still not keep up with the rest of the floor crew.(Id., Ex. 40.) Assistant manager Brian Kiefer's statement provides that "Melvin had been talked to and coached about his productivity. He wasn't showing any sign of wanting to improve and his attitude showed he didn't want to be part of a team and he thought he could get away with everything." (Id., Ex. 41.) Finally, during Keel's deposition, when he was questioned as to whether he had any reason to believe that he was not actually fired for repeatedly failing to finish his duties, he answered twice in the negative. (Id., Ex. 1, at 154:1-15.) For these reasons, there is no genuine dispute that Keel would have been coached on August 14, 2007, and terminated on August 22, 2007, regardless of whether he sent the July 11, 2007 letter complaining of Lupe Martinez's racially derogatory comment. See Hernandez, 670 F.3d at 658. Accordingly, Keel's retaliation claims should be dismissed.
VIII. Failure to Accommodate
Prohibited discrimination under the ADA includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . . ." 42 U.S.C. § 12112(b)(5)(A). To prevail on a failure to accommodate claim, the plaintiff must establish: (1) the employer is covered by the statute; (2) he is a qualified individual with a disability; (3) he can perform the essential functions of the job with or without reasonable accommodation; and (4) the employer had notice of the disability and failed to provide accommodation. Mzyk v. Ne. Indep. School Dist., 397 F.App'x 13, 16 n.3 (5th Cir. 2010) (citing Bridges v. Dep't of Soc. Serv., No. 00-30804, 2001 WL 502797, at *1 (5th Cir. Apr. 27, 2001)). The McDonnell-Douglas framework is "unnecessary and inappropriate" for a failure to accommodate claim. Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997).
The employee has the burden to request a reasonable accommodation. Griffin, 661 F.3d at 224; Loulseged, 178 F.3d at 735 n.4. The employer is obligated to engage in an interactive process - a meaningful dialogue with the employee to find the best means of accommodating the disability - once the employee has satisfied this initial burden. Griffin, 661 F.3d at 224; Chevron Phillips Chem. Co., LP, 570 F.3d at 622. The employer is required to engage in the interactive process in good faith. Chevron Phillips Chem. Co., LP, 570 F.3d at 622; Loulseged, 178 F.3d at 736. The employer is not required to provide the employee's preferred accommodation or the best accommodation possible. E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 471 (5th Cir. 2009) (citations omitted).
In Keel's charge of discrimination, he asserts that Wal-Mart failed to provide a reasonable accommodation for his disability. (Compl., at 5, Docket No. 1.) In the August 28, 2007 letter sent on Keel's behalf to his managers after he was terminated, Keel complains of Wal-Mart's failure to assign someone to read for him when he worked as a deli sales associate. (Mot. Summ. J., Ex. 30, Docket No. 39.) However, during his deposition, he explained that his claim is actually premised on Wal-Mart's failure to provide him with a scrubber in working condition. (Id., Ex. 1, at 53:2-13.) Keel further testified that he never requested an accommodation for his dyslexia or illiteracy. (Id. at 53:17-21.)
Keel cannot prevail on his claim because there is no evidence showing that he ever requested an accommodation for his disability during his employment. See Griffin, 661 F.3d at 224; Loulseged, 178 F.3d at 735 n.4. Moreover, as previously discussed, it would have been unreasonable for Wal-Mart to hire another employee to read for Keel while he worked in the deli. See Jefferson, 440 F.App'x at 329-30; Burch, 174 F.3d at 621; Newman, 979 F. Supp. at 1091. Finally, assuming arguendo that Keel did request an accommodation, on two separate occasions, Wal-Mart offered to transfer Keel to different positions that did not require him to read or write. Keel accepted both of these transfers, one of which increased his salary and made him a full-time employee. (See Mot. Summ. J., Ex. 1, at 35:5-36:18, 44:24-45:4, Docket No. 39.) Accordingly, the Court should dismiss Keel's failure to accommodate claim.
IX. Hostile Work Environment
A. Legal Standard
To prevail on a hostile work environment claim under Title VII or the ADA, the plaintiff must prove: (1) he belongs to a protected class; (2) he was subject to unwelcome harassment; (3) the harassment was based on his protected trait; (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See Harvill v. Westward Comms., L.L.C., 433 F.3d 428, 434 (5th Cir. 2005); Soledad v. U.S. Dept. of Treasury, 304 F.3d 500, 506 & n.8 (5th Cir. 2002); Flowers v. S. Regional Physician Servs., 247 F.3d 229, 235 (5th Cir. 2001).
"For harassment to affect a term, condition, or privilege of employment, it must be objectively and subjectively abusive." Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004). "Workplace conduct is not measured in isolation." Hernandez, 670 F.3d at 651 (quoting Ramsey, 286 F.3d at 268) (internal quotations omitted). A court considers the following factors to determine whether a work environment is sufficiently hostile: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating, or merely an offensive utterance; (4) whether the conduct interferes with work performance; and (5) whether the complained-of conduct undermines the plaintiff's workplace competence. Hockman, 407 F.3d at 325-26. The alleged harassment must be so severe and pervasive that it destroys the employee's opportunity to succeed in the workplace, and it must be more than rude or offensive comments, teasing, or isolated incidents. Id. (citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999)); see also Hernandez, 670 F.3d at 652 (holding that isolated incidents do not establish an abusive work environment).
B. Analysis
Keel's hostile work environment claim is premised on Lupe Martinez's allegedly abusive behavior towards him. The summary judgment evidence provides only three examples of derogatory comments allegedly made by Lupe Martinez to Keel. First, the July 11, 2007 letter written on Keel's behalf to his managers states: "She regularly swears at me calling me a 'fat lazy Motherf*****.'" (Mot. Summ. J., Ex. 18, Docket No. 39.) As discussed above, there is no evidence indicating that Keel interpreted this comment to implicate his disability. See Sams, 2007 WL 4300118, at * 16; Garnica, 2004 WL 330675, at *6. In fact, Keel's charge of discrimination complains only of "a racially hostile work environment." (Complaint, at 5, Docket No.1) (emphasis added.) Therefore, this example does not support Keel's claim.
Second, Keel testified during his deposition that "one or two times [Lupe] stated that 'at least I can read or write.'" (Mot. Summ. J., Ex. 1, at 151:21-152:7, Docket No. 39.) Third, the July 11, 2007 letter states: "On my last shift (last night), [Lupe] shouted that I was 'f***** lazy WHITE TRASH.'" (Id., Ex. 18) (emphasis in original.) Such isolated incidents do not support a hostile work environment claim. See Hockman, 407 F.3d at 325-26. Beyond these three examples, the summary judgment evidence contains only conclusory assertions that do not satisfy Keel's summary judgment burden. See Ramsey, 286 F.3d at 269.
Furthermore, to the extent Keel argues that his claim is supported by Wal-Mart's failure to provide him with a working scrubber machine, Keel fails to show how this non-disability and race-based harassment was part of a pattern of disability or race-based harassment. See Hernandez, 670 F.3d at 654 (discussing E.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393 (5th Cir. 2007)); accord Wiltz, 2011 WL 1576932, at *8 ("Harassment is based on color when the complained-of conduct has a color-related character or purpose.") (emphasis in original). Accordingly, Keel's hostile work environment claim should be dismissed.
X. Recommendation
Wal-Mart's "Motion for Summary Judgment" (Docket No. 39) should be granted and this lawsuit should be dismissed with prejudice because there are no genuine disputes concerning Keel's employment discrimination claims.
XI. Objections
Objections must be: (1) specific, (2) in writing, and (3) served and filed within fourteen (14) days after being served with a copy of this report. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 1(a), 6(b), 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, see Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error of unobjected-to factual findings and legal conclusions accepted by the district court, see Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).
SIGNED this 17th day of July, 2012.
/s/_________
Zack Hawthorn
United States Magistrate Judge