Callais v. United Rentals North America, Inc.

REPLY MEMORANDUM in Support of 40 MOTION for Summary Judgment

M.D. La.March 18, 2019

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA PHILIP A. “BERT” CALLAIS versus UNITED RENTALS NORTH AMERICA, INC. ) ) ) ) ) ) ) Civil Action No. 3:17-cv-312-BAJ-RLB DEFENDANT UNITED RENTALS NORTH AMERICA, INC.’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Defendant United Rentals North America, Inc. (“Defendant” or “United Rentals”) submits this Reply in Support of its Motion for Summary Judgment and in response to Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment (“Opposition”) (R. Doc. 47), stating as follows: I. Introduction Plaintiff’s Opposition almost solely consists of quotations from and references to cases cited in Defendant’s Motion for Summary Judgment, without tying them to any substantive arguments. Instead of responding to United Rentals’ assertions and explaining why summary judgment should not be granted, Plaintiff attempts to confuse the issues by submitting a self- serving affidavit and a 100+ page Statement of Contested Material Facts that does not comply with Local Rule 56(b).1 As a result, Plaintiff’s Opposition is almost incomprehensible and ultimately presents no competent evidence to overcome summary judgment. For the reasons set 1 Local Rule 56(b) requires a “short and concise statement of the material facts” as to which Plaintiff contends there exists a genuine issue to be tried. Here, Plaintiff submitted a 100+ page statement composed entirely of factual misrepresentations, unsubstantiated assertions and conclusory legal arguments rather than a proper statement of facts as contemplated by Local Rule 56(b). This massive statement has not controverted any of the uncontested material facts set forth by United Rentals and, accordingly, it should be stricken from the record. See Vaughn v. Wal-Mart Stores, Inc., 2011 WL 612807, at n.2 (M.D. La. Feb. 11, 2011) (ordering that the defendant’s uncontested facts should be deemed admitted due to the plaintiff’s failure to file a statement of material facts in accordance with the Local Rules). Case 3:17-cv-00312-BAJ-RLB Document 61 03/18/19 Page 1 of 6 2 forth herein and based on the uncontroverted arguments in United Rentals’ summary judgment motion, Plaintiff’s claims should be dismissed with prejudice and in their entirety. II. Plaintiff Failed to Meet His Prima Facie Burden to Show a Claim of Disability Discrimination. Plaintiff’s Opposition fails to even address, much less refute, United Rentals’ arguments regarding his claim of disability discrimination. Specifically, Plaintiff does not identify any substantial limitation of a major life activity sufficient to constitute a disability or a documented record of a disability as required under the ADA.2 Indeed, Plaintiff’s Medical Questionnaire documentation, on which Plaintiff’s Opposition remains curiously silent, certifies that he did not have any physical or mental impairments.3 The Opposition also fails to establish another essential element of his prima facie claim – namely, that he was replaced by a non-disabled employee or that a similarly-situated coworker was “treated differently under circumstances ‘nearly identical’ to [his]” (i.e., a non-disabled coworker who committed the same safety violations was not terminated).4 Plaintiff’s Opposition does neither and is entirely silent on these factors. As a result, there is no genuine issue of material fact regarding Plaintiff’s disability discrimination claim and this Court should grant summary judgment in Defendant’s favor. III. Plaintiff Has Not Shown “Substantial Evidence” of Pretext. Plaintiff’s employment was terminated because of his repeated violations of the Company’s safety policies, culminating with his (documented) severe safety violation on July 6, 2016.5 In response to a motion for summary judgment, an employee must present “substantial evidence” that the employer’s legitimate, non-discriminatory reason for termination is 2 See Mayo v. Trinity Marine Indus., Inc., No. CIV. A. 97-3993, 1999 WL 104421, at *2 (E.D. La. Feb. 23, 1999) (finding that “major life activities” including “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”) 3 Exhibit A, Deposition of Plaintiff Philip A. “Bert” Callais taken on March 16, 2018 and April 16, 2018, pp. 247- 48 (Plaintiff’s Medical Questionnaire is filed under seal at R. Doc. 40, Ex. A, and Ex. 10 thereto). 4 See Mayberry v. Vought Aircraft Co., 55 F. 3d 1086, 1090 (5th Cir. 1995). 5 Ex. A, Ex. 11 thereto. Case 3:17-cv-00312-BAJ-RLB Document 61 03/18/19 Page 2 of 6 3 pretextual.6 Pretext is established “either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or ‘unworthy of credence.’”7 Plaintiff’s Opposition summarily argues that “inconsistent testimony” by Jude Durand (the termination decision maker) and Barry Comeaux “may directly or indirectly suggest that UR’s legitimate nondiscriminatory reasons are unworthy of credence.”8 Plaintiff does not specify which testimony is allegedly inconsistent nor does he provide any additional details supporting this conclusory assertion. It is nonetheless worth noting that Mr. Comeaux was not a decision-maker in Plaintiff’s termination decision and Mr. Durand’s stated reasons for terminating Plaintiff are fully supported by the documentation in evidence.9 Plaintiff’s remaining last-ditch argument is that “[d]efendants are rarely courteous enough to admit in some documented form that an asserted rationale behind a discharge is really a pretext for an illicit motive.”10 This argument is untethered to the facts of this case and is insufficient to create a genuine issue of material fact on this case. Further belying his argument regarding pretext, Plaintiff signed a T3 Assessment accepting fault for the July 6, 2016 accident and admitting that his actions could have resulted in fatalities.11 In light of this evidence, Plaintiff cannot proceed to trial based solely on mere conjecture or disagreement with United Rentals’ termination decision.12 Plaintiff therefore has no evidence to establish that his safety violation was not the real reason for his termination or that his employment was terminated because of his disability, much less the substantial evidence required to avoid summary judgment on his claims. 6 Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 480 (5th Cir. 2016) (citing Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015)). 7 Id. (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). 8 R. Doc. 47, p. 3. 9 Ex. A, pp. 247-48. 10 R. Doc. 47, pp. 9-10. Burns v. Texas City Refining, 890 F.2d 747, 751 (5th Cir. 1989). 11 Ex. A, pp. 236-37, Ex. 13. 12 Perez v. Region 20 Educ. Service Center, 307 F.3d 318, 325 (5th Cir. 2002). Case 3:17-cv-00312-BAJ-RLB Document 61 03/18/19 Page 3 of 6 4 IV. Plaintiff Failed to Meet His Prima Facie Burden to Show a Failure to Accommodate. Plaintiff’s Opposition wholly fails to refute United Rentals’ argument that he was never denied a reasonable accommodation. Instead of addressing this argument, the Opposition merely states that “UR made no offer for reasonable accommodation for Callais to refuse.” This statement, however, falls flat because (1) the legal burden is on an employee to request a reasonable accommodation and (2) Plaintiff’s Opposition does not identify any requested accommodation that was denied by United Rentals.13 Notably, Plaintiff admitted at deposition that he never informed Human Resources regarding his need for an accommodation, as required in the Employee Handbook.14 Most importantly, Plaintiff’s Opposition does not respond to the undisputed evidence that Plaintiff was granted 15-minute breaks and allowed to go to his doctors’ appointments, which, according to his testimony, were the accommodations he needed to perform his job duties.15 Plaintiff’s wholesale failure to point to any record evidence regarding a specific accommodation that he requested and was denied by United Rentals is fatal to his failure to accommodate claim. V. Plaintiff’s Deposition Testimony Refutes his Veterans’ Discrimination Claim. Finally, Plaintiff’s veterans’ discrimination claim fails because he has not shown that he was disciplined or terminated “for taking time away from work to attend medical appointments necessary to meet the requirements to receive his veterans’ benefits.” The plain language of La. R.S. 23:331 makes clear that an employee must demonstrate actual disciplinary action or a discharge resulting from attending medical appointments. As cited in United Rentals’ summary 13 See Burch v. Coca–Cola Co., 119 F.3d 305, 320 (5th Cir. 1997); Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164-65 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996). 14 Ex. A, pp. 193-194, 233 (Excerpts from the Employee Handbook are filed under seal at R. Doc. 40, Ex. A, Ex. 12) thereto). 15 Ex. A, pp. 252-53. Case 3:17-cv-00312-BAJ-RLB Document 61 03/18/19 Page 4 of 6 5 judgment, Plaintiff’s sworn deposition testimony clearly establishes that he was never disciplined or discharged for leaving work to attend medical appointments at the Veterans’ Administration. In response to this devastating testimony, the Opposition merely argues Plaintiff’s corkers allegedly told him that “[you’re] military, [you] can take it.” This alleged statement, without any accompanying evidence of discharging or disciplinary action taken against Plaintiff, is wholly insufficient to defeat summary judgment. Despite Plaintiff’s assertions to the contrary, his own testimony forecloses a veterans’ discrimination claim and his Opposition fails to adequately explain away his own admission. VI. Plaintiff’s “Sham” Affidavit Is Not Competent Summary Judgment Evidence. A nonmoving party may not submit a self-serving affidavit to manufacture an issue of fact and/or defeat a motion for summary judgment by “impeach[ing] without explanation, sworn testimony.”16 Here, Plaintiff’s affidavit essentially replicates his Complaint and offers no evidentiary value to his arguments. In fact, Plaintiff’s affidavit contains numerous deficiencies including irrelevant conclusory statements,17 unsupported legal conclusions,18 and inadmissible hearsay.19 Moreover, none of the remaining paragraphs in the affidavit, even if true, establish any evidence sufficient to overcome summary judgment. Plaintiff’s sham affidavit is not competent summary judgment evidence, and likewise should be disregarded and stricken from the record.20 Respectfully submitted, /s/ Ellen C. Rains Monique Gougisha Doucette, LA Bar No. 28057 Ellen C. Rains, LA Bar No. 36927 16 S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). 17 R. Doc. 47, Ex. 48, ¶¶ 5-6. 18 Id., ¶ 12. 19 Id., ¶¶ 9,11. 20 See Amie v. El Paso Ind. Sch. Dist., 253 Fed. Appx. 447, 451 (5th Cir. 2007). Case 3:17-cv-00312-BAJ-RLB Document 61 03/18/19 Page 5 of 6 6 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras St., Suite 3500 New Orleans, LA 70139 Telephone: (504) 648-3840 Facsimile: (504) 648-3859 Electronic mail: monique.gougisha@ogletreedeakins.com ellen.rains@ogletreedeakins.com Attorneys for Defendant United Rentals North America, Inc. CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all counsel of record via the Court’s Electronic Notification/Filing System. This 8th day of March, 2019. /s/ Ellen C. Rains ELLEN C. RAINS Case 3:17-cv-00312-BAJ-RLB Document 61 03/18/19 Page 6 of 6