Kitchen vs. BASF

RESPONSE in Opposition to 24 REQUEST for pre-motion conference

S.D. Tex.April 16, 2018

Veronica L. Davis Attorney at Law 226 N. Mattson West Columbia, Texas 77486 (979) 345-2953 (979) 345-5461 facsimile transmission The Honorable George C. Hanks, Jr. United States District Judge 601 Rosenberg, 6th Floor Galveston, Texas 77550 April 12/16, 2018 Re: Cause No. 3:17-cv-00040; Jeff Kitchen vs BASF.; In the United States District Court for the Southern District of Texas, Galveston Division Dear Judge Hanks, Plaintiff files this opposition to Defendant’s prehearing conference. Defendant tendered a notice that it was seeking a prehearing conference pursuant to Rule 12(b)(6), 12( c ) and 12(h)(2). Plaintiff noticed its objection stating that same was violative or Rule 12 in whole or in part. (See Exhibit A, attached and incorporated by reference, the same as if fully copied and set forth herein). Rule 12(b) requires that dismissal thereon must be sought before any responsive pleadings are filed by the Defendant. Therefore, seeking same is wholly violative of Rule 12(b), as Defendant has filed an Answer in this cause. A motion made asserting any of these defenses must be made before pleading if a responsive pleading is allowed See also Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Circuit 2004). Alcoholism is not a per se disability under the ADA in the Fifth Circuit. However, the Fifth Circuit has found it to be an individual inquiry in each case. Case 3:17-cv-00040 Document 29 Filed in TXSD on 04/16/18 Page 1 of 3 The Court in Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, 758 (S.D.Tex. 2001) states that: The threshold requirement in any case brought under the ADA is a showing that the plaintiff suffers from a disability protected under the Act. See Hamilton, 136 F.3d at 1050; Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998); Rogers, 87 F.3d at 758. "[W]hether a person has a disability under the ADA is an individualized inquiry." Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The ADA defines a disability as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or © being regarded as having such an impairment. 42 U.S.C. § 12102(2); see Ivy, 192 F.3d at 516; Talk, 165 F.3d at 1021; Deas, 152 F.3d at 475; Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998); Hamilton, 136 F.3d at 1050; Sherrod, 132 F.3d at 1119; Still, 120 F.3d at 52; Robinson, 101 F.3d at 36. In a discriminatory-termination action under the ADA, the employee may either present direct evidence that she was discriminated against because of her disability or alternatively proceed under the burdenshifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a Title VII case. In E.E.O.C. v. Texas Bus Lines, 923 F.Supp. 965, 969 (S.D.Tex.1996),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. Daigle v. Liberty Life Ins., 70 F.3d 394, 396 (5th Cir.1995). 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). Pleadings are not evidence. Therefore, Plaintiff contends that the basis for a premotion conference and judgment on the pleadings is without merit, making resolution necessary by summary judgment or trial on the merits. Defendant cites Mora v. University of Southwestern Medical Center, 469 Fed.Appx. 295, 297 (5th Cir Mar 2012) as support for its position that it may move for -2- Case 3:17-cv-00040 Document 29 Filed in TXSD on 04/16/18 Page 2 of 3 judgment on the pleadings. However, the cases and factual details differ markedly as set out below: 1. Mora was allowed to replead her petition/complaint; 2. Mora complained about ADA violations under Title II and V which is relevant to state supported programs; 3. Mora complained that due to her disability she was denied services (Employee Assistance Program services ) for her alcoholism . Therefore, the case is quite dissimilar from the instant case in the foregoing respects. Therefore, same can not be the basis for a judgment on the pleadings. Plaintiff contends that Defendant had the opportunity to complain of pleading defects at the outset of the case, including either a Motion for More Definite Statement or A Motion to Dismiss for Failure to State a Cause of Action. Defendant did neither, but waited until Plaintiff filed for Summary Judgment, submitting evidence clearly showed the termination was in all things wrongful and that Plaintiff was lied to regarding the reason for his termination, as his breath test was not positive, as alleged. Federal Rules of Civil Procedure 1 provide that the purpose of the rules is to “secure the JUST, speedy, and inexpensive determination of every action”, rather than to secure a dismissal by artfully waiting to the eve of trial and complaining of matters which should have been addressed early on in the case. Moreover, Rule 12 ( c) requires that the Motion shall be made “After the pleadings are closed- but early enough not to delay trial”. This action would cause such a delay. Consequently, because the repleading to include the ADA standards does not constitute surprise and seems to be required by statute and/or case law, Plaintiff prays that this court allow such an amendment.. Moreover, discovery shows that the complaint should be repled because the Defendant told Plaintiff that he failed the breath tests. Discovery finally revealed that Plaintiff’s supposition for the reason for his termination was patently false. Therefore,a number of matters previously pled are inconsistent with the evidence obtained. Plaintiff requests the opportunity to amend its Petition. Respectfully submitted, /s/ V.L.Davis Veronica L. Davis -3- Case 3:17-cv-00040 Document 29 Filed in TXSD on 04/16/18 Page 3 of 3