Pisani v. Conrad Industries Inc

REPLY to Response to Motion re MOTION for Summary Judgment

W.D. La.December 26, 2017

1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION ******************************************* * THAYER A. PISANI, * Plaintiff * CIVIL ACTION NO. 6:17-00393 * versus * JUDGE ROBERT G. JAMES * CONRAD INDUSTRIES, INC. * MAGISTRATE JUDGE * PATRICK J. HANNA * Defendant * * ******************************************* REPLY TO PLAINTIFF’S OPPOSITION TO CONRAD’S MOTION FOR SUMMARY JUDGMENT Defendant Conrad Industries, Inc. (“Conrad”), through counsel, respectfully submits this Reply to Plaintiff’s Opposition to its Motion for Summary Judgment on all Plaintiff’s claims. I. INTRODUCTION. Employers make their own employment decisions, not doctors. “Reasonable doctors of course can disagree—as they disagree here—as to whether a particular employee can safely perform the functions of his job. That is why the law requires only that the employer rely on an ‘objectively reasonable’ opinion, rather than an opinion that is correct.” Michael v. City of Troy Police Dep’t., 808 F.3d 304, 309 (6th Cir. 2015). Plaintiff’s Opposition to Conrad’s Motion for Summary Judgment posits an employment landscape where liability for disability discrimination rests on the employer’s ability to perform an in-depth evaluation of a series of medical opinions and choose the correct one, in the hopes that the Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 1 of 11 PageID #: 814 2 factfinder will agree. The ADA, however, does not require managers to become neurologists nor does it assume that medical opinions should be second-guessed by panels of jurors. To the contrary, the standard set out by Conrad in its opening brief – whether Conrad had an “objectively reasonable” concern that Pisani posed a direct threat to its workforce1 – is the correct standard in this case. Employers are responsible for determining how to operate a business while also insuring the safety of employees. Conrad’s Director of Human Resources, Shane Alfred, relied on an opinion from Dr. Bourgeois that any layperson can understand without reading the medical treatises cited by Plaintiff, imagining outlandish scenarios, or delving into the world of neurology. Based on a review of an MRI report, Dr. Bourgeois told Alfred that Plaintiff had not received the same corrective surgery for his degenerative disc disease that he required in 2006 to return to work. On that basis, Alfred decided that it was not safe to return Plaintiff to work as a crane operator when his symptoms could return at any time. In his opposition, Plaintiff presents no evidence that suggests further medical review would have helped inform that decision, exposed some irregularity in Dr. Bourgeois’ straightforward observation, or changed the outcome. Instead, Plaintiff speculates that if Conrad had bet on Dr. Haight’s return to work recommendation, Plaintiff would have been safe. As a matter of law, however, Conrad is not required to take chances; it is only required to make a reasonable decision based on objective medical evidence.2 1 See Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (citing Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (“In evaluating an employer’s direct-threat contention, the fact-finder does not independently assess whether it believes that the employee posed a direct threat . . .the fact-finder’s role is to determine whether the employer's decision was objectively reasonable.”) 2 Jarvis, 500 F.3d at 1124 (holding that the law does not require an employer to wait for serious injury before eliminating a threat). Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 2 of 11 PageID #: 815 3 I. PLAINTIFF’S RESPONSE TO CONRAD’S STATEMENT OF FACTS CONTAINS UNSOURCED SPECULATIONS AND DAMAGING ADMISSIONS. As a gateway concern, in his “Response to Defendant’s Proposed Findings of Fact,”3 Plaintiff designated paragraph numbers 5, 14, 22, 23,4 24, 25, 28, 33, 40, 43, and 44 of Conrad’s Statement of Undisputed Material Facts as “DENIED” without any credible basis for doing so. This vague, unsupported Response indicates Plaintiff’s willingness to tell a story about Plaintiff’s neck injury which is not supported by the record.5 For example, in Paragraph 5, citing to Dr. Bourgeois’s deposition, Conrad states: “Most significantly, Pisani’s job as a crane operator required him to extend his neck for long periods of time, looking upwards at loads suspended over people.”6 Pisani responds: “DENIED. Most of the time loads are not suspended over people and a crane operator need not raise (not extend) his neck for long periods of time but only for a few hours a day during the work days.”7 While it is not even clear how this statement functions as a denial, it is clear, from the lack of citation, that this allegation is not supported in the record, and thus, cannot help the Court determine the existence of a disputed fact. Likewise, as another example, Conrad referred directly to Dr. Damon Patterson’s deposition for Paragraph 44 of its Undisputed Facts: “After Pisani’s employment was terminated, he got a second opinion from another neurologist, Dr. Damon Patterson, who also had no background in 3 Rec. Doc. 37-2. 4 In Paragraphs 22 and 23, Plaintiff contends that although Plaintiff had exhausted his FMLA leave, he was entitled to “ADA protected medical leave.” This is legal contention, not a fact. Moreover, although an employee can request extended leave as a reasonable accommodation, it is undisputed that Plaintiff did not do that in this case. See Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481–82 (5th Cir. 2016) (citing Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 759–60 (5th Cir. 1996)) (Under the ADA, “an employer is not required to provide a disabled employee with indefinite leave.”). 5 Everest Nat’l Ins. Co. v. Tri-State Bancshares, Inc., No. CV 15-1491, 2016 WL 5062155, at *6 (W.D. La. Aug. 2, 2016) (citing W.D. Local Rule 56.2) (All material facts set forth in the statement required to be served by the moving party “will be deemed admitted, for purposes of the motion, unless controverted as required by this rule.”) 6 Deposition of Dr. Robert Bourgeois, pp. 27:19-23, 29:6-21, Rec. Doc. 29-4. 7 Rec. Doc. 37-2. Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 3 of 11 PageID #: 816 4 occupational medicine and did not have any knowledge of the job duties or ergonomic requirements of the crane operator position at Conrad.”8 Once again, without any citation to the record, Plaintiff responds: “Patterson would have known that a crane operator sits mostly during a workday. Dr. Patterson realized that for Pisani to return to a job that Pisani had already shown he was qualified, Patterson needed only to determine if Pisani had returned to the condition he had been prior to his injury. Patterson did that assessment.”9 In addition to being unhelpful to the Court as the basis for disputing a material fact – and whether Plaintiff’s doctors considered Plaintiff’s job duties is material indeed – this is also a very damaging admission. Plaintiff is arguing that Dr. Patterson assumed that Plaintiff’s degenerative disc disease did not jeopardize his ability to do his job, because he mistakenly assumed the job was sedentary, and only evaluated him to determine if his symptoms had resolved. Conrad heartily agrees with this admission. Dr. Patterson’s opinion is completely irrelevant because he did not examine Plaintiff to determine whether performing his job as crane operator would cause his symptoms to return and put the lives of Conrad’s employees at risk. Moreover, Dr. Patterson admitted he did not have knowledge of the condition of Plaintiff’s neck when he was first injured or the length of time required to treat it, so Dr. Patterson could not have performed the assessment that Plaintiff contends he did.10 Incredibly, Plaintiff makes the same unsourced admission about Dr. Edward Haight: “Since Pisani had worked prior to his injury successfully as a crane operator, Dr. Haight did not need to do an assessment like that needed for a new hire. He needed to determine if Pisani had returned to his 8 Deposition of Dr. Damon Patterson, pp. 38:14-18, 42:2-23, Rec. Doc. 29-7. 9 Rec. Doc. 37-2. 10 When asked whether the length of time that Plaintiff was absent from work indicated the severity of his injuries, Dr. Patterson testified, “[s]o. I can’t really speak to that length of time and why that decision was made. It may have been different if I had evaluated him at that time.” Dr. Patterson Deposition, p. 70:17-21. Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 4 of 11 PageID #: 817 5 condition prior to the injury. Haight found that Pisani had returned to normal.”11 “Normal,” for Plaintiff, was working with a damaged spine that twice caused him to miss months of work because his neck was paralyzed and his arms were numb. Plaintiff is arguing that Dr. Haight and Dr. Patterson did not consider this problem and only opined on whether Pisani’s damaged spine temporarily become asymptomatic. Conrad’s decision not to rely on the opinions of Dr. Haight and Dr. Patterson was objectively reasonable because those doctors did not offer evidence that was relevant to the issue of whether Pisani posed a direct threat. II. PLAINTIFF FAILS TO ARTICULATE THE CORRECT STANDARD FOR DETERMINING WHETHER AN EMPLOYEE POSED A DIRECT THREAT UNDER THE ADA. Plaintiff complains that Conrad uses a Sixth Circuit standard for its “direct threat” analysis but cites to no contrary authority in the Fifth Circuit or any other sister Circuit.12 Then, Plaintiff offhandedly rejects the “objectively reasonable” standard and deploys his own baffling analysis. Plaintiff states, “Actually, no 6th Circuit court cited in Conrad’s memorandum relied solely on an objectively reasonable expert’s determination for the employer to prevail.”13 That is correct because the standard is not whether the Court can rely solely on the expert’s reasonableness, it is whether employer’s reliance on the expert was objectively reasonable.14 That is a considerable difference. Even if the Court were to find, for example, that Dr. Haight was better qualified to read a cervical MRI or opine on “fominal stenosis,” that does not change the reality that Dr. Bourgeois, who was familiar with the job duties of a crane operator, told Conrad that an employee who needed back surgery to correct his degenerative disc disease in 2006 needed it again for the same type of 11 Rec. Doc. 37-2. 12 Rec. Doc. 37, pp. 17-21. 13 Rec. Doc. 37, p. 18 14 Michael, 808 F.3d at 307. See also E.E.O.C. v. Beverage Distributors Co., LLC, 780 F.3d 1018, 1021 (10th Cir. 2015) (employer had reasonable belief that job would entail adirect threat); Wurzel v. Whirlpool Corp., 482 F. App'x 1, 18 (6th Cir. 2012) (holding that employer’s direct threat determination was objectively reasonable; Jarvis, 500 F.3d at 1122 (employer’s direct threat determination was objectively reasonable). Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 5 of 11 PageID #: 818 6 spinal damage if he was going to safely return to work as a crane operator.15 Any employer would find this opinion to be objectively reasonable, and that is the standard that applies. This standard, described in detail in Michael v. City of Troy Police Dep’t., focuses on the employer’s point of view and specifically cautions against the error of trying to determine whether the doctors were right or wrong.16 It is Plaintiff’s misapprehension of this standard that causes him to spend the bulk of his opposition extolling the findings of Dr. Haight and criticizing Dr. Bourgeois without considering the basis of the employment decision that Conrad made. Further, Plaintiff invents his own standard: “When the court sided with the company expert . . . the employee in the past had acted in a way to prove he could be that direct threat.”17 It is impossible to understand why Plaintiff would feel that his past incidents would not satisfy this particular standard. While employed at Conrad, Plaintiff twice missed months of work because his degenerative disc disease paralyzed his neck and caused numbness in his arms. This is every bit as prescient for an employment decision based on safety as the “two seizures” or “five hypoglycemic episodes” that Plaintiff claims are distinguishable.18 As discussed below, element by element, in Section III, Plaintiff’s avoidance of the “objectively reasonable” standard leads him into one dead end after another. 15 Bourgeois Deposition, pp. 26:1-13 (Rec. Doc. 29-4), 35:6-12. 16 Michael v. City of Troy Police Dep't, 808 F.3d 304, 309 (6th Cir. 2015) (“Indeed, in many cases, the question whether one doctor is right that an employee can safely perform his job functions, or another doctor is right that the employee cannot, will be unknowable—unless the employer runs the very risk that the law seeks to prevent. Here, the City was not required to invite a section 1983 claim later in order to avoid an ADA claim now. Right or wrong, the opinions upon which the City relied were objectively reasonable; and that means the City is not liable.”) 17 Rec. Doc. 37, p. 18. 18 Rec. Doc. 37, pp. 18-19 Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 6 of 11 PageID #: 819 7 III. CONRAD’S RELIANCE ON DR. BOURGEOIS’S OPINION WAS OBJECTIVELY REASONABLE. A. Individualized Assessment. Plaintiff argues that Conrad did not perform an “individual assessment” because Dr. Bourgeois did not examine Plaintiff in person in January of 2016. Plaintiff’s gloss is too literal. An individual assessment means a determination based on the employee’s unique situation “rather than upon any predetermined or unfounded general stereotype.”19 The ADA does not require an employer to conduct “an independent medical examination when the available objective evidence is clear.”20 At a minimum, Conrad considered Plaintiff’s individual medical history, so this prong is easily satisfied. B. Nature and Severity of Harm. Plaintiff quibbles that his injuries could not cause harm because he imagines all kinds of evasive action he would take if his arms became numb again. For example, Plaintiff imagines if his left hand became numb he could “move his right hand to his left hand and take control of the lever.”21 However, Plaintiff offers no evidence to suggest that operating a crane is a one-handed task. He also imagines that any other back-related symptoms would cause Plaintiff to “quit work and seek help.” Plaintiff misunderstands “that the magnitude of potential harm must be balanced against the probability of occurrence.”22 Explaining to the widow of a shipyard employee that Conrad had put Plaintiff back in crane under the assumption that he could probably switch arms when one his arms went numb, again, is unthinkable. No employer can base its safety decisions on an assumption that the individual employee will probably self-diagnose and take evasive action at 19 Jarvis, 500 F.3d at 1123 (citing Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir.1997)). 20 Id. 21 Rec. 37, p. 13. 22 E.E.O.C. v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000). Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 7 of 11 PageID #: 820 8 the right moment. Employers must make decisions in anticipation of the worst case scenario when it is a life or death matter. C. Duration of Risk. Plaintiff contends that Conrad’s duration of risk analysis is inadequate because Dr. Haight testified that he did not recommend surgery for Pisani. However, Dr. Haight would have needed to request a job description to evaluate whether crane operation would affect Pisani’s neck.23 Thus, his thoughts on surgery are not relevant. In any event, Conrad was on notice that the same degenerative disc condition had required surgery in 2006 and was justified in relying on Dr. Bourgeois’s contention that it was necessary again in 2016. D. Imminence of Potential Harm. Plaintiff’s only argument addressing the imminence of potential harm is that “[t]he neurologists did not envision any imminent and sudden loss of the use of Pisani’s arm.”24 Dr. Bourgeois’s fear of imminent harm, however, is more compelling because, as Plaintiff asserts, Dr. Haight [and Dr. Patterson] only needed “to determine if Pisani had returned to his condition prior to the injury. Haight found that Pisani had returned to normal.” 25 The neurologists did not consider the effect that Plaintiff’s job could have on his neck because they did not know what he did with his neck. E. Likelihood of Potential Harm. Plaintiff’s analysis of the likelihood of potential harm focuses on which doctors did a better job of interpreting Plaintiff’s MRI report. As discussed above, determining which doctor is more likely to be right or wrong about a diagnosis is not the direct threat analysis. The standard is whether the employer relied on an opinion that was objectively reasonable. 23 Dr. Haight Deposition, p. 70:1-11, Rec. Doc. 29-5. 24 Rec. Doc. 37, p. 17-18. 25 Rec. Doc. 37-2. Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 8 of 11 PageID #: 821 9 Also, Plaintiff quibbles about the term, “herniated.” The MRI report describes “a protrusion, characterized as a 4 millimeter ‘hyperintense’ foci, that was consistent with myelomalacia, or softening of the spinal cord.”26 Dr. Patterson admitted multiple times in his deposition that although he would not call this a “herniation” in the “strictest definition,” an occupational doctor might very well call this a herniation.27 Even if Plaintiff’s quibble were relevant, it does not address a genuinely disputed issue of material fact. Because Plaintiff cannot point to evidence refuting any the elements above, the Court can find that Plaintiff posed a “direct threat” to the safety of himself and other individuals in the workplace. IV. PLAINTIFF CANNOT STATE A PRIMA FACIE CASE OF DISABILITY DISCRIMINATION. Conrad concurs with Plaintiff that he must show “he was qualified for the job” to state a prima facie case; however, Plaintiff fails to note that “direct threat” is a qualification standard, not an affirmative defense for which Conrad would bear the burden of proof.28 Plaintiff cites one opinion from the Fifth Circuit, Atkins v. Salazar, for the proposition that “direct threat” is an affirmative defense.29 Atkins deals with a different section of the ADA, defining when a generalized qualification standard that could screen out an individual with a disability is a job- related “business necessity,” and does not address “direct threat” at all.30 Conrad’s authority, Turco v. Hoechst Celanese Corp., that an employee who poses a direct threat is not “qualified” 26 SOF, ¶ 19. 27 Dr. Patterson Deposition, pp. 9, 60:21-25, 61:1 28 29 C.F.R. § 1630.15(b)(2) (“Direct threat is a qualification standard”). 29 Rec. Doc. 37, p. 6. 30 Atkins v. Salazar, 677 F.3d 667, 681 (5th Cir. 2011) (citing 42 U.S.C. § 12113(a)). Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 9 of 11 PageID #: 822 10 under the ADA is not overruled by Atkins because Turco refers specifically to § 12113(b), the definition of direct threat.31 Thus, it is Plaintiff’s burden to show that he was not a direct threat. Plaintiff’s preferred experts, by Plaintiff’s own admission, did not address the issue of whether Plaintiff posed a substantial risk of imminent harm to Conrad’s workforce, so he cannot carry his burden. V. CONCLUSION. Based on the foregoing, Conrad respectfully asks the Court to grant its Motion for Summary Judgment and dismiss Plaintiff’s Complaint. Respectfully submitted: Gregory Guidry, T.A. La. Bar No. 06489 603 Silverstone Road, Suite 102A Lafayette, Louisiana 70508 Tel. (337) 769-6583 Fax (337) 989-0441 greg.guidry@ogletreedeakins.com /s/ William H. Payne, IV Jennifer L. Englander, La. Bar No. 29572 William H. Payne, IV, La. Bar No. 36617 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Jennifer.Englander@ogletreedeakins.com Bill.Payne@ogletreedeakins.com Attorneys for Defendant, Conrad Industries 31 Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996) (citing 42 U.S.C. § 12113(b)). Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 10 of 11 PageID #: 823 11 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been filed via the Court’s Electronic Case Filing System, which provides for service on all counsel of record. This 26th day of December, 2017. /s/ William H. Payne, IV WILLIAM H. PAYNE, IV 32390033.1 Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 11 of 11 PageID #: 824