Kitchen vs. BASF

RESPONSE in Opposition to 77 MOTION for Summary Judgment

S.D. Tex.July 26, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION JEFF KITCHEN § § VS. § NO. 3:17-cv-00040 § BASF § ____________________________________________________ PLAINTIFF’S OPPOSITION/ RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ____________________________________________________ Respectfully submitted, /s/ V.L. Davis Veronica L. Davis Fed No. 29717 SBT # 05557300 226 N. Mattson West Columbia, Texas 77486 (979) 345-2953 vld57atal@yahoo.com Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 1 of 29 TABLE OF CONTENTS 1. Summary Judgment Standard..................................................... 1 2. Disputed Issues of Material Fact................................................... 2 3. Reasons Case Not Proper for Summary Judgment Review................ 4 4. Opposition to Defendant’s Bases for Summary Judgment...................................................................................... 5,8 5. Summary of Defendant’s Bases for Seeking Summary Judgment.... 5 6. Opposition to Defendant’s Statement of Undisputed Facts........... 8 7. Plaintiff has established that he is a person with a disability pursuant to the Americans with Disabilities Act.......................................... 14 8. Prima Facie Evidence of Disability/Burden Shifting Analysis........... 16 9. Defendant errs in its contention that its proffered reason for terminating Plaintiff is not discriminatory even if wrongful, therefore Defendant can not be found liable for discriminatory conduct.................................................................... 17 10. Pretext/ Proffered Reason False.................................................... 18 11. Plaintiff can Establish a Prima Facie Case for Age Discrimination... 21 12. Error Regarding 42 U.S.C. § 1981............................................. 22 12. Conclusion and Prayer..................................................................... 23 13. Certificate of Service........................................................................... 24 -i- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 2 of 29 TABLE OF AUTHORITIES Alexander v. Choate, 469 U.S. 287, 295-97 & n.12 (1985) ................................ 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1985)........................... 1 Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir.1993).................. 16,18 Calderone vs. United States, 799 F.2d 254, 259 (7th Cir 1986).............................. 4 Clark v. Boyd Tunica, Inc. 665 Fed. Apx. 367 (5th Cir 2016) ............................... 20 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).............................................. 2 Daigle v. Liberty Life Ins., 70 F.3d 394, 396 (5th Cir.1995)............................... 16 Deas v. River West, 152 F.3d 471, 475 (5th Cir 1998)............................................. 14 E.E.O.C. v. Texas Bus Lines, 923 F.Supp. 965, 969 (S.D.Tex.1996)................. 16 EEOC v. Brown & Root, Inc., 688 F.2d 338, 340-41 (5th Cir. 1982)................... 16 Equal Employment Opportunity Commission vs. LHC Group, 5th Cir. 13-60703 p.8-9 (2013) ..................................................................... 4 Fontenot v. Upjohn Co, 780 F.2d 1190, 1994 (5th Cir 1986).................................. 4 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)................................ 11 Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) ...................................... 22 Khan v. College of The Mainland, Civil Action G-13-436,] (Texas Southern District- Galveston Div. 2014)....................................... 19 Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) ....................................... 19 Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, (S.D.Tex. 2001) ................... 15 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, -ii- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 3 of 29 36 L.Ed.2d 668 (1973).................................................................................... 7,22 Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 254 (5th Cir.1990)..... 16 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)............................. 17 Pratt vs. City of Houston, Tex 247 F.3d 601,606-607 (5th Cir 2001).................. 5 Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir.2003)............... 2 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–48, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ..................................................4,19,21 Rodriguez v. Eli Lily and Company, 820 F.3d 759, 764-765 (5th 2016) ........... 7 Shaikh vs. Texas A & M University College of Medicine, 16-20793 (5th Cir June 2018).................................................................................... 7 Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998)........... 15 Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)............................................................................... 15 Texas Department of Community Affairs vs. Burdine, 450 U.S.,248, 256, 101 S.Ct. at 1095......................................................................................... 18 Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001...................... 19 Federal Rules of Civil Procedure 45 ................................................................ 13 Federal Rules of Civil Procedure 50 ................................................................ 4 Federal Rules of Civil Procedure 56 ................................................................ 1, 2 Federal Rule of Evidence 410.............................................................................. 7 Federal Rule of Evidence 701............................................................................ 6,11 Federal Rule of Evidence 801............................................................................ 13 -iii- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 4 of 29 Federal Rule of Evidence 802 ........................................................................... 6 Federal Rule of Evidence 803(1) Federal Rule of Evidence 803(4)........................................................................... 13 Federal Rule of Evidence 803(7)......................................................................... 13 Federal Rule of Evidence 804 Americans with Disabilities Act ..................................................................4,7,10, 14, 23 Rehabilitation Act of 1973 .................................................................................. 7 42 U.S.C. § 1981 et seq..................................................................................... 22 42 U.S.C. § 12101 et seq................................................................................. 4 ,6,7, 8 42 U.S.C. § 12112(b) et seq...................................................................................... 4, 29 U.S.C. §§ 621 et seq.............................................................................................. 13 29 C.F.R. 1630.2(g) ................................................................................................ 8 49 C.F.R. Part 40. .................................................................................................... 9 Texas Penal Code §49.01(1)(B ............................................................5, 6, 14 -iv- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 5 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION JEFF KITCHEN § § VS. § NO. 3:17-cv-00040 § BASF § PLAINTIFF’S OPPOSITION AND RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, JEFF KITCHEN, PLAINTIFF, in the above entitled and numbered cause and files this Response/Opposition to Defendant’s Motion for Summary and in support thereof would show as follows: STANDARD FOR SUMMARY JUDGMENT Under Federal Rule of Civil Procedure 56, summary judgment is appropriate 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 substantive law identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On summary judgment, " [t]he moving party has the burden of proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, -1- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 6 of 29 246 (5th Cir.2003); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, " the non-moving party must show that summary judgment is inappropriate by setting forth specific facts showing the existence of a genuine issue concerning every essential component of its case." Rivera, 349 F.3d at 247. THERE ARE DISPUTED ISSUES OF FACT WHICH PRECLUDES SUMMARY JUDGMENT FOR DEFENDANT It is clear and unequivocal that Defendant fired Plaintiff for allegedly failing a breath alcohol test. It is undisputed that he had to take said tests monthly as part of his continued employment with BASF. Defendant refers to this requirement as an accommodation. It is also undisputed that mandatory breath alcohol testing resulted from Plaintiff having gone through the Employee Assistance Program due to his alcoholism. As a result of this mandatory testing, on September 28, 2015, Plaintiff blew a 0.014 on his first test and 0.010 on his second test, 15 minutes later. Neither result is significant. (Exhibit A) Plaintiff , however, was told that he failed the test and that he blew a 0.14 and a 0.10, respectively, both of which are above the legal limit in Texas. See Texas Penal Code 49.01 which defines the legal limit as 0.08. Consequently, BASF knew that Plaintiff had not failed to breath test as it alleged. Testimony reveals that there was some problem regarding the start up of the test. Therefore, there is a disputed issue of fact -2- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 7 of 29 regarding the validity of the test. There is a disputed issue of fact regarding whether Plaintiff reported to work impaired, as alleged by Defendant. There is also a disputed issue of fact regarding whether the reasons proffered by Defendant are true or whether they are pretextual. Obviously, the reason are pretextual since BASF lied to the Plaintiff about his actual results. Moreover, there is a material issue of fact as to whether Plaintiff was terminated for any other reason than his disability. There is no disputed issue of material fact regarding the breath test analyst. BASF knew that the person who gave Plaintiff the test lacked the qualifications, credentials, certifications, and/or accreditations to do so. Therefore, the test is in all things invalid. Therefore, Defendant has failed to provide a legitimate, nondiscriminatory reason for terminating Plaintiff. There exists a disputed issue of fact regarding whether Defendant had a good faith belief that Plaintiff violated BASF policy. Plaintiff clearly believes that the reason Proffered by Defendant is pretextual and that it knew that Plaintiff did not violate its policy. It can produce no policy that Plaintiff violated. Defendant contends on page 4, ¶2 of its Motion for Summary Judgment, that “the law does not require correct personnel decision-only nondiscriminatory ones.” Plaintiff would show that any employment decision based upon a prohibition contained in the -3- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 8 of 29 Americans with Disabilities Act is per se discriminatory. CASE NOT PROPER FOR SUMMARY JUDGMENT REVIEW Defendant has already admitted that Plaintiff has a disability by stating that it provided an accommodation for the disability. Therefore, Plaintiff need not prove a prima facie case of discrimination. Defendant’s Motion for Summary Judgment is replete with references to the accommodations provided Plaintiff by the Defendant. The Defendant bears the burden of proof at trial that its reasons for termination of Plaintiff was not pretexual and not discriminatory. The Defendant’s showing” must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone vs. United States, 799 F.2d 254, 259 (7th Cir 1986); See also Fontenot v. Upjohn Co, 780 F.2d 1190, 1994 (5th Cir 1986). EEOC vs. LHC, Inc. d/b/a Gulf Coast Homecare, 773 F.3d 688 (5th Cir 2014) stated “In the Rule 56 context, a prima facie case of discrimination plus a showing that the proffered reason is pretextual is typically enough to survive summary judgment. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–48, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (reaching a similar conclusion in the Rule 50 context, which “mirrors” the standard for summary judgment).” The Fifth Circuit has also stated that summary judgment is improper “if the evidence taken as a whole 1) creates a factual issue as to whether each of the employer’s stated reasons was what actually motivated the employer; 2) creates a reasonable -4- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 9 of 29 inference that the prohibited conduct was a determinative factor in the discrimination of which Plaintiff complains. Pratt vs. City of Houston, Tex 247 F.3d 601,606-607 (5th Cir 2001). Therefore, Defendant’s Motion is not proper for review by summary judgment. Summary of Defendant’s Bases for Seeking Summary Judgment Defendant posits that it is entitled to summary judgment as a matter of law because 1) Plaintiff must have been under the influence of alcohol at the time he arrived at work; 2) Plaintiff can not establish a prima facie discrimination claim; 3) Defendant’s previous accommodation of Plaintiff’s condition warrants a denial of a continuing accommodation; and 4) that Plaintiff can not show discriminatory animus and is therefore precluded from making a claim of discrimination. Whether Plaintiff was under the influence of alcohol at the time he arrived at work, though filled with supposition and conjecture, is clearly a fact issue which would preclude a grant of summary judgment with respect Plaintiff’s claims that he was terminated on the basis of his disability- alcoholism. The other bases are opposed herein infra. Therefore, the issue of whether Defendant believed Plaintiff was disabled is moot. OPPOSITION TO SUMMARY OF DEFENDANT’S ARGUMENT The evidence is clear and unequivocal that Defendant’s proffered reason: that Plaintiff “failed a breathalyzer test, was false. Defendant then artfully claimed that Plaintiff violated the Return to Work agreement by reporting to work while impaired. -5- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 10 of 29 Defendant’s contention is premised on a non-zero reading. It should be noted that Defendant has failed to produce the test strip showing that the initial readout on the machine was 0 when Plaintiff began his test. Defendant admits that it has no such test strip to show the beginning reading. (See Request for Admissions Exhibit C) Defendant concluded that Plaintiff must have been impaired upon arrival at work due to the “rate alcohol is metabolized in the body over time.” Said statement was provided by Mark Damron during his deposition. ( ) , Damron, Plaintiff’s supervisor is not a physician nor an expert in such matters. ( ). He allegedly obtained said information from the company doctor, who was not on site at the time of the test, who refused to give Plaintiff a blood test, as requested, and who was not deposed. Any alleged information provided to Damron by the doctor, would in all things be hearsay and inadmissible, pursuant to Federal Rule of Evidence 802 . Moreover, same is inadmissible pursuant to Federal Rule of Evidence 701 which provides in pertinent part that: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are........... ( c ) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Therefore Defendant’s arguments regarding its supposition that Plaintiff must have been impaired at the time of his arrival to work1 must in all things be stricken,. Said 1 See Defendant’s MSJ pg. 3, 11-13 -6- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 11 of 29 supposition is hearsay. Moreover, it is based on inadmissible evidence. Additionally, Defendant’s discussion of Plaintiff’s alleged pleas regarding former criminal proceedings pertaining to a DUI (driving under the influence) are not only irrelevant but inadmissible pursuant to Federal Rules of Evidence 410. Same should also be stricken. Finally, Defendant contends Plaintiff can not substantiate a claim for discriminatory animus because he did not provide “examples of any time Mr. Damron ever expressed animus towards him”, but rather cited his subjective belief that Damron was against alcohol (Def. MSJ pg. 3, ¶ 1). Plaintiff did not offer statements of Damron as his basis for discriminatory animus, but rather the actions taken by BASF. Therefore Defendant’s contention is contrary to the holding in Rodriguez v. Eli Lily and Company, 820 F.3d 759, 764-765 (5th 2016) which sets forth the standard for untoward remarks supporting direct evidence of discrimination. Rodriguez argued that when no such comments are applicable, the analysis switches to the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S, 792, 93 S.Ct. 1871 (1973). In Shaikh vs. Texas A & M University College of Medicine, 16-20793 (5th Cir June 2018), the Fifth Circuit determined that the standard under 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act were the same with respect to discriminatory animus. The Fifth Circuit held that: -7- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 12 of 29 The dissent argues that Shaikh must demonstrate a "direct causal nexus" between his disability and his dismissal in order to satisfy the "solely by reason of" requirement, but it is not clear what sort of discriminatory action—if any—would satisfy that test. According to the dissent, a "direct causal nexus" would exist here only if Shaikh's "disability itself was the sole reason for his dismissal." That formulation is even more problematic, however, because it is premised upon a false distinction between the "disability itself" and the disability's effects; as explained above, Section 504 and the ADA define "disability" in terms of real-life limitations, not abstract diagnoses. It seems that the dissent's test would encompass, at most, actions resulting solely from discriminatory animus against an individual's disabled status. But Section 504's prohibitions are not confined to animus-based discrimination, as the Supreme Court has held. Alexander v. Choate, 469 U.S. 287, 295-97 & n.12 (1985) (observing that "[d]iscrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference —of benign neglect," and that "much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a discriminatory intent).[Emph added] Therefore, Plaintiff need not prove discriminatory animus by Damron’s direct statement. He need only show a causal nexus between his disability and his termination. Likewise, Plaintiff satisfies that prong when it comes to his disability. “But for” Plaintiff’s disability, Plaintiff would not have been subject to post-rehabilitation testing for alcohol nor would BASF have held him to a higher standard of inebriation regarding termination. Consequently, Defendant would not have been able to use its false basis for termination. RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS2 Most of the information contained in Defendant’s Statement of Uncontroverted 2 The letters in this section correspond to and are answers to the corresponding letters in Defendant’s Motion for Summary Judgment beginning at page 6 -8- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 13 of 29 Facts, are in fact conclusions, rather than facts. Moreover, said conclusions are not true for the most part. Defendant attempts to mislead the Court by stating that Section 4.2.7 is a revised policy which does not set out what constitutes a “positive test” and what constitutes “impaired” Section 4.2.7 is one section of Policy No. BC008.001. The policy which defines what constitutes an Impaired Indivdual is contained in a different policy BC008. (See Exhibit B. Said deliberate attempt at confusion is a falsity designed to make the court believe that BASF has no definition for impairment. 3 Because BASF argued same in an earlier pleading, Plaintiff asked for the BASF - RFP 1-9 regarding alcoholism, by number. The Defendant declined to produce same. Therefore, the Court should disregard any policy information regarding same. (See Exhibit D). Additionally, BASF’s own policy disclaimer states it’s Breath Alcohol analysis will be performed in accordance with the United States Department of Transportation’s regulatory guidance. (BASF 0223). Pursuant to United States Department of Transportation Guidelines, a test is not considered positive until a result of .020 is had. 49 C.F.R. Part 40. 3 It should be noted that BASF has a number of policies which apply to contractors, visitors, employees, etc, pertaining to alcohol. There are also differences in policies based upon whether testing is random, mandatory, based upon suspicion of the presence of a substance or post rehabilitation. -9- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 14 of 29 Pursuant to Defendant’s own policy, Plaintiff’s breath alcohol test was not positive (BASF 0223- Exh B) . “A positive test results shall be deemed to be confirmed when a second breath alcohol measurement of 0.04% or higher is obtained.(See Summary Judgment evidence Exhibit B). Neither of Plaintiff’s tests were of 0.04 or higher. Therefore, pursuant to its own policy, Plaintiff did not test positive for the presence of alcohol. According to BASF policy (2.8 BC 008-pg. 20) a person is “impaired” as follows: “In the case of Alcohol, this means a blood alcohol level at or above .04%. Therefore, Plaintiff was not impaired, was not intoxicated, and did not violate the policy of BASF. Defendant attempts to confuse this court by using different policy numbers to substantiate its claim that there is no policy which specifies an impairment level or intoxication level, which would make its termination of Plaintiff wrongful and violative of the Americans with Disabilities Act. B,D-F Defendant outlines an alleged history of Plaintiff’s alcoholism and periods of rehabilitation, treatment- whether inpatient or outpatient and periods of being jailed. None of this information is relevant to this case, except to show that Defendant was aware that Plaintiff was an alcoholic. (See pg 6-10). Defendant admittedly provided accomodations for his alcoholism. Therefore, by Defendant’s admission, Defendant shows that Plaintiff was an alcoholic, had a record of being an alcoholic and was “regarded as” an alcoholic by Defendant. G. Plaintiff does not admit that he was scheduled for an alcohol test on -10- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 15 of 29 September 28, 2015 as the tests were allegedly random. Plaintiff also does not admit that his tests results were .014 and 0.010 respectively, but rather that the print out provided by Defendant indicates same. H. Plaintiff objects to the information contained in G regarding the allegation that “Plaintiff likely had arrived to work under the influence of alcohol.” In addition to being a disputed issue of material fact, the information proffered by Defendant is inadmissible hearsay presented in contravention of the hearsay rules and Federal Rule of Civil Procedure 701. (See Defendant’s MSJ pg. 11-13) 1. There is no evidence that Plaintiff likely arrived at work under the influences of alcohol. As heretofore stated, Defendant can not premise its argument on the alleged extrapolation analysis regarding the “rate alcohol is metabolized in the body over time.” Said statement was allegedly provided to Mark Damron, Plaintiff’s supervisor.4 Damron is not a physician nor an expert in such matters. He produced no direct evidence during his deposition of this information and the doctor was not deposed. Any alleged information provided to Damron by the doctor, would in all things be hearsay and inadmissible. Moreover, same is inadmissible pursuant to Federal Rule of Evidence 701 which provides in pertinent part that: If the witness is not testifying as an expert, the witness’ testimony in the form of 4 Damron allegedly obtained this information from the BASF doctor. -11- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 16 of 29 opinions or inferences is limited to those opinions or inferences which are........... ( c ) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 2. Defendant’s argument belies what actually occurred. Plaintiff was sent home immediately after his test by the Human Resources Director, Shawntee Jones. According to the breath alcohol technician, the physician was not even on the BASF campus at the time Plaintiff was sent home. Therefore, the decision to immediately suspend Plaintiff was not premised on what Damron thought or information he obtained from the physician, as he had no such information at the time Plaintiff was sent home. I. The third party medical records submitted by Plaintiff are not admissible for the reasons set out below. Contrary to the assertions of Defendant, Defendant has not produced said records to Plaintiff that it obtained during the discovery process that Plaintiff is aware of. The records contained at Exhibit F of Plaintiff’s Motion for Summary Judgment were subpoenaed. However, Defendant failed to provide notice to Plaintiff pursuant to Federal Rule of Civil Procedure 45(b)(1). Plaintiff was given the breath test which resulted in his termination on September 28, 2015. The medical record submitted as Exhibit F ( and discussed at pages 13-15 ) to Defendant’s Motion for Summary Judgment is dated September 29, 2015- the day after Plaintiff was told that he failed the breath test and was sent home. Therefore same is irrelevant as Plaintiff’s alleged admission to the doctor occurred the day after the test. -12- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 17 of 29 Moreover, there is no admission in the records that Plaintiff had been drinking on the date of his termination. Additionally, said records are inadmissible for a variety of reasons: a. There is no document attached showing that these are the records of Jeff Kitchen, as no document in said Exhibit contains his signature. Same is customary for records from St. Luke CHI in Lake Jackson, Texas. (See Affidavit of counsel). b. The document itself allows for multiple interpretations. An episode which occurred 10 days prior negates the last sentence of the document, which indicates that “the patient had been sober for a number of years until about 10 days ago when he reports that he had a death in the family and with other stressors.” c. If this is indeed the record of Plaintiff, Kitchen, he testified that his fiancee’s Dad died on September 8, 2015. (See Depo ) That was not ten days prior to said hospital admission, but rather 20. Plaintiff also testified that he drank on the day he knew he lost his job. Same is not mentioned in the alleged interview. d. Therefore, said interview is questionable at best and has not been verified. The alleged medical records violate Federal Rules of Evidence 803(4)- (contained statements not made for purposes of diagnosis and treatment), 801 (contains hearsay), 803(7)-an absence of entry in the records (signatures of Plaintiff indicating that said records are Plaintiff’s) e. The document (purported medical record of Plaintiff was secured by subpoena in contravention of Rule 45(b)(1) of the Federal Rules of Civil Procedure, in -13- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 18 of 29 that notice was not provided to the plaintiff, nor the subpoena filed prior to execution. f. Finally, Defendant contends, in its Motion for Summary Judgment that said medical record raises a credibility determination. Defendant questions whether Plaintiff provided “inaccurate information to BASF” during his deposition or to the hospital during his alleged intake. Same constitutes a question of material fact, precluding summary judgment. Moreover, “Summary judgment is singularly inappropriate where credibility is at issue. Only after an evidentiary hearing or a full trial can these credibility issues be appropriately resolved." SEC v. M & A West, Inc. 538 F.3d 1043, 1054-1055 (9th Cir 2006); See also Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir 2009). J. Defendant contends that there is lack of evidence is conclusive that age was not a motivating factor in Plaintiff’s termination. For discussion of same, see Issue III infra pg. 22 I. Plaintiff has established that he is a person with a disability pursuant to the Americans with Disabilities Act. Disability Pursuant to the ADA, "disability" means (I) "a physical or mental impairment that substantially limits one or more major life activities"; (ii) "a record of such impairment"; or (iii) "being regarded as having such an impairment." See 42 U.S.C. §. 12101; See also Deas v. River West, 152 F.3d 471, 475 (5th Cir 1998); 42 U.S.C. § 12102(2); see also 29 C.F.R. 1630.2(g). -14- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 19 of 29 Records contained in the BASF file show that at all times relevant herein, BASF had documents regarding Plaintiff’s treatment, a record of impairment. BASF worked in conjunction with the Employee Assistance Program providers regarding Plaintiff’s treatment plan, determining the requirements to be put in place, after care, and the schedule of breath and urine testing for the Plaintiff. Defendant acknowledges that it provided accommodations in connection therewith. Furthermore, BASF put rules and stipulations in place regarding further infractions regarding Plaintiff’s alcohol use. The medical evidence, along with the Defendant’s acknowledgment that Plaintiff is an alcoholic, coupled with the required Return to Work shows that Plaintiff is disabled pursuant to the ADA and/or was regarded as disabled by his employer, Defendant, BASF. Evidence further indicates that he was qualified for the position which he held.5 Moreover, Plaintiff was tendered an offer of employment and transfer to the Freeport, Texas site after the Seaford, Delaware plant closed. Same occurred after inpatient treatment for alcoholism (BASF 0125 & 0137) The Court in Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, (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, 5 Plaintiff had Positive performance evaluations (BASF 0140-0145) -15- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 20 of 29 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Plaintiff clearly has a disability, alcoholism, and has been regarded by his employer as having a disability. In consideration thereof, Defendant admittedly provided him with accommodations and spent much time discussing the accommodations that it provided. (See Def. MSJ pg. 18 Now, while in litigation, Defendant disingenuously denounces that Plaintiff is disabled. II. Plaintiff has established a prima facie case of disability In E.E.O.C. v. Texas Bus Lines, 923 F.Supp. 965, 969 (S.D.Tex.1996), citing Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 254 (5th Cir.1990); EEOC v. Brown & Root, Inc., 688 F.2d 338, 340-41 (5th Cir. 1982), 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). Under the familiar McDonnell Douglas/Burdine framework, the Court employs a three-part test designed to determine the motivation of the defendant in taking the challenged action. First, the plaintiff is required to establish a prima facie case wherein he must establish the elements of the discrimination claim. If the plaintiff proves his prima facie case, a presumption of discrimination arises. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th Cir.1993). -16- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 21 of 29 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). BASF is unable to meet this burden. III. Defendant errs in its contention that its proffered reason for terminating Plaintiff is not discriminatory even if wrongful, therefore Defendant can not be found liable for discriminatory conduct. As a result of the Return to Work Agreement, Defendant subjected Plaintiff to random testing to assure his compliance with not drinking on the job. In Defendant’s EEOC response to Plaintiff’s Statement of Position, the Defendant states: B. BASF admits that Complainant was terminated after failing a breathalyzer test. Complainant was called in for his regularly scheduled test and for [sic] the test results reflected the presence of alcohol in his system... (BASF 0050) The standard for termination was not the presence of alcohol. The amount of .010 and .014 is negligible and could be the result of many factors from mouthwash to the chemicals with which Defendant worked. Defendant failed to ascertain such. (RFA 9- -17- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 22 of 29 Exh C) “FAILING” a breathalyzer test, would require the Plaintiff to have exceeded the .08 level of intoxication set forth in the Texas Penal Code § 49.01 at the maximum and to be impaired pursuant to BASF policy at a minimum. BASF Policy 4.3.1 (BASF 0223) defines a positive Alcohol Test result shall be deemed confirmed when a second breath test alcohol measurement of 0.04% or higher is confirmed. In the instant case, Plaintiff’s second alcohol test, conducted 15 minutes later, showed a lower result (.010) than the first. In terminating the Plaintiff, BASF violated its own polices and procedure regarding termination for alcohol use and the agreement of the parties (Back to Work ). The Return to Work Agreement (Exhibit I) specifically specifies that the Plaintiff must not report to work impaired. Impaired has been defined as 0.040 by BASF policy. Moreover, BASF violated the testing protocol which indicated a 0.02 limit. Therefore, BASF’s own policy does not support termination for the mere presence of alcohol, but for impairment and/or use on the job. (See Exhibits B, E) Pretext- Proffered Reason False Defendant has failed to meet its burden by failing to proffer admissible evidence of an explanation that would be legally sufficient to justify a judgment for the defendant. Defendant has failed to proffer a reason that is nonpretextual, thereby eliminating the Plaintiff’s burden to produce evidence of discrimination. Defendant’s failing to do so shows that the real reason for the action was impermissible animus. Burdine at 256, 101 -18- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 23 of 29 S.Ct. at 1095; Bodenheimer, 5 F.3d at 957. However, Plaintiff may succeed in this either by persuading the Court that a discriminatory reason more likely motivated the defendant or by showing that the defendant's reason is unworthy of credence. Burdine, at 256, 101 S.Ct. at 1095. Plaintiff has done so by showing that the Defendant’s reason is unworthy of credence because Plaintiff was neither intoxicated nor impaired. Additionally, BASF first lied about the results, then produced the forms, only after order of the Court. Moreover, Plaintiff did not violate the Return to Work Agreement. Plaintiff need not hypothesize whether its subjective belief is the basis for pretext, as set forth by this Court in Khan v. College of The Mainland, Civil Action G-13-436, (Texas Southern District- Galveston Div. 2014) because the Defendant clearly states that the reason for the termination of the Plaintiff was his alcoholism. The Defendant’s position that Plaintiff allegedly had a positive alcohol sample is merely a pretext for discrimination because by definition, there was no positive test result. A pretext for discrimination may be established "either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or 'unworthy of credence.'" Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001). No additional evidence of discriminatory intent is required, if plaintiff’s prima facie case raises a genuine dispute as to a material fact regarding the truth of the proffered -19- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 24 of 29 reasons. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 149; S.Ct. at 2109. The falsity of the employer’s explanation creates an inference of intentional discrimination. “In appropriate circumstances, the trier of fact can infer from the falsity of the explanation that the employer is dissembling to cover up discriminatory motive. Reeves at 147. Defendant citing Clark v. Boyd Tunica, Inc. 665 Fed. Apx. 367 (5th Cir 2016) contends that "[A] fired employee's actual innocence of his employer's proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.") BASF, in this instance, did not act in good faith. It denied Plaintiff another opportunity for testing and it failed to grant his request for a blood test, stating that it had no duty to do so. (See EEOC response- Exhibit G). Additionally, in Boyd, the Defendant used an independent laboratory and went through a “reasoned process” regarding what could have provided a positive urine test result of .12% which was above the legal limit in Mississippi. That was not the case here. The margin of error for the test in the instant case was .010. There was no initial test strip provided, showing that the machine was at 0.00 at the start of the test. (See RFA Exh C No. 6) The breath alcohol technician, hereinafter referred to as BAT, and the Plaintiff indicated that there was a problem with the machine at the start of the test. Additionally, it was discovered that the BAT was not certified on the machine used for Plaintiff’s test. -20- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 25 of 29 Additionally, in the instant case, Defendant’s proffered reason was false because Defendant lied about Plaintiff’s test results. Therefore, Defendant, BASF nor Damron can rely on the premise that it had a reasonable belief that Plaintiff had consumed alcohol, thereby excusing its termination of Plaintiff. If Defendant had a reasonable belief that Plaintiff was impaired, it would not have lied to the Plaintiff nor changed the reported results. IV. Plaintiff can establish a prima facie case for age discrimination Defendant contends that Plaintiff can not establish an age discrimination case because he can provide no comparators and because his immediate supervisor is in his 50's as well. The age of his supervisor, Mark Damron is irrelevant to establishing whether discrimination is based upon age. Additionally, Defendant can not rely on lack of comparators because it failed to provide comparator information in discovery. Work force information can only be obtained from BASF. Failure to provide said information and then use same as a basis to state that Plaintiff can not make out a prima facie case is disingenuous an violative of the discovery rules set forth in the Federal Rules of Civil Procedure. The Court in Rachid v. Jack in the Box, 376 F.3d 305, 309 (5th Cir 2004), the Fifth Circuit examined age discrimination under the ADEA pre-Desert Palace. Under the ADEA, "[i]t shall be unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to his -21- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 26 of 29 compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). "When a plaintiff alleges disparate treatment, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). To demonstrate age discrimination a "plaintiff must show that '(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either I) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.'" A plaintiff can demonstrate age discrimination in two ways, either through direct evidence or by an indirect or inferential method of proof. Discrimination can be shown indirectly by following the "pretext" method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).... If, however, plaintiff produces direct evidence of discrimination, the McDonnell Douglas test is "inapplicable." The Price Waterhouse [v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)], mixed-motives theory of discrimination comes into play where direct evidence of discrimination is presented, but the employer asserts that the same adverse employment decision would have been made regardless of discrimination....... Unlike McDonnell Douglas, which simply involves a shifting of the burden of production, Price Waterhouse involves a shift of the burden of persuasion to the defendant. In other words, under Price Waterhouse, once a plaintiff presents direct evidence of discrimination, the burden of proof shifts to the employer to show that the same adverse employment decision would have been made regardless of discriminatory animus. If the employer fails to carry this burden, plaintiff prevails...... V. Plaintiff’s has no claim pursuant to 42 U.S.C. § 1981 Plaintiff has no claim pursuant to 42 U.S.C. § 1981. In an earlier writing/ pleading/ or answer, Plaintiff’s counsel so advised that same was a typographical error -22- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 27 of 29 and that no claim was made in connection therewith. The complaint should have read 42 U.S.C. § 1986, as same was a claim for attorney’s fees. CONCLUSION Defendant terminated Plaintiff for allegedly failing a breath alcohol test. The breath alcohol test was a requirement for continued employment with BASF due to the Plaintiff’s past history with alcoholism. Therefore, Plaintiff had a known disability, had a record of such disability and was regarded as an alcoholic. Therefore, he is a qualified individual under the Americans with Disabilities Act. Defendant admits that it fired the Plaintiff due to failing a breath alcohol test. The evidence shows that he did not fail the test, as alleged. Alcoholism is a disability under the Americans with Disabilities Act. To the extent that Defendant contends it is not, it provided Plaintiff with an accommodation.“But for” Plaintiff’s disability, Plaintiff would not have been subject to post-rehabilitation testing for alcohol nor would BASF have held him to a higher standard of inebriation regarding termination. Consequently, Defendant would not have been able to use its false basis for termination. It is undisputed that Defendant wrongfully terminated Plaintiff and same was on the basis of his disability and his age. However, the following disputed issues of material fact preclude summary judgment for the Defendant: 1) whether Plaintiff reported to work impaired; 2) whether the breath alcohol test was valid due to machine error and/or lack of requisite qualifications of the BAT; 3) whether Plaintiff was terminated for any reason -23- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 28 of 29 other than discrimination; and 4) whether Defendant’s reason for terminating Plaintiff was pretextual. On summary judgment, a district court must determine whether genuine issues of material fact exist, and must resolve any uncertainty in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, Defendant’s Motion for Summary Judgment must in all things be denied and uncertainty resolved in favor of the Plaintiff, Jeff Kitchen. Respectfully submitted, Veronica L. Davis /s/ V.L. Davis Fed. No. 29717 226 N. Mattson West Columbia, Texas 77486 (979) 345-2953 vld57atal@yahoo.com CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been sent to Carolyn Russell of Ogletree, Deakins on this the 26th day of July, 2018 by efiling. /s/ V.L. Davis -24- Case 3:17-cv-00040 Document 78 Filed in TXSD on 07/26/18 Page 29 of 29