Barnard v. L-3 Communications Integrated Systems L.P.

Brief/Memorandum in Support

N.D. Tex.April 14, 2017

PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 1 of 50 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION WENDY BARNARD, Plaintiff, VS. L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., Defendant. § § § § § § § § § CIVIL ACTION NO. 3:16-cv-00282 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Dan A. Atkerson Texas Bar No. 01400090 1025 Arches Park Drive Allen, Texas 75013 Ph. (214) 383-3606 Fax (214) 383-3513 E-mail: atklaw84@aol.com ATTORNEY FOR PLAINTIFF WENDY BARNARD Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 1 of 50 PageID 288 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 2 of 50 TABLE OF CONTENTS I. INTRODUCTION……………………………………………………………………7 II. RESPONSE TO DEFENDANT’S ALLEGED STATEMENT OF UNDISPUTED MATERIAL FACTS, AND PLAINTIFF’S STATEMENT OF MATERIAL FACTS PRECLUDING SUMMARY JUDGMENT………………………………………………………………………….7 III. ARGUMENT AND AUTHORITIES SUPPORTING DENIAL OF SUMMARY JUDGMENT………………………………………...….19 A. Summary Judgment Standard of Review……………………………….……….20 B. L-3’s Substance Abuse Policies Requiring All Employees to Disclose All Prescription Drugs Are Unlawful Under the ADA and Texas Labor Code and Prove Disability Discrimination Against Plaintiff Who Was Not a “Direct Threat” Under ADA …………………………………………...….....22 C. L-3 Discriminated Against Plaintiff on Basis of Disability………………………………………………………………..………33 D. Plaintiff Has Established a Prima Facie Case of Disability Discrimination…………………………………………………….…35 E. L-3’s Articulated Reasons for Plaintiff’s Termination Are Pretextual and Unworthy of Credence or Belief………………….……….36 F. Summary Judgment Should Be Denied on Plaintiff’s Failure to Accommodate Claims Under the ADA and TCHRA (Texas Labor Code) Because Plaintiff’s Disability Limitations Were Known to Defendant……………………………………………….…....40 G. Summary Judgment should be Denied with Regard to a Failure to Accommodate Plaintiff’s Attention Deficit Hyperactivity Disorder (“ADHD”) because Plaintiff did Request Accommodations for her ADHD………………………………………………………….…..…..42 H. Summary Judgment should be Denied with regard to Plaintiff’s chronic back issues and pain because Plaintiff requested an accommodation to take legally prescribed pain medication for her back….…..45 I. Summary Judgment should be denied on Plaintiff’s age discrimination claims under the Age Discrimination in Employment Act (“ADEA”) and the TCHRA because Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 2 of 50 PageID 289 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 3 of 50 there is evidence that L-3 discriminated against Plaintiff on the basis of her age, Plaintiff has established a prima facie case for age discrimination, and L-3’s articulated reasons for Plaintiff’s termination are pretextual………………..….45 J. Summary judgment should be denied on all claims because Plaintiff can demonstrate competent evidence of recoverable damages…………………………………………………….…...47 K. Summary judgment should be denied as to Plaintiff’s punitive damages and mental anguish and physical ailment damages under the ADA because there is evidence that L-3 did act with reckless disregard or malice and there is evidence of physical or mental impairment caused by L-3 to Plaintiff……………………………………………………….………48 L. Summary judgment should be denied as to Plaintiff’s claims for liquidated damages under the ADEA because there is evidence that L-3 willfully violated the ADEA…………………………...…49 M. Summary judgment should be denied as to Plaintiff’s punitive damages under the TCHRA because there is evidence that L-3 acted with malice or reckless disregard……………………………......49 N. Summary judgment should be denied regarding Plaintiff’s compensatory damages for pain and suffering, mental anguish, loss of enjoyment of life, and physical injury because there is competent evidence to support injury on each of these alleged damages…..…..49 Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 3 of 50 PageID 290 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 4 of 50 TABLE OF AUTHORITIES Cases Page Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)………..…………………….….....20 Arban v. West Publishing Corp., 345 F.3d 390 (6th Cir. 2003)…………………………....……37 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), vacated on other grounds, 535 U.S. 391, 122 S. Ct. 1516 (2002)…………………………………………………..…….44 Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000)……….…………………….….20 Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988)………….……………...46 Bocalbos v. Nat’l Western Life Ins. Co., 162 F.3d 379, 384 (5th Cir. 1998)…...………………36 Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993)……………..…….……46 Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984)……………………………….....….…20 Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996)………..…..….44 Burton v. Freecsale Semiconductor, Inc., 798 F.3d 222, 232, 236 (5th Cir. 2015)………….…38 Casey Enterprises, Inc. v. American Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981)…………………………………………………………….21 Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002)……………………………..…..……..27 Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011 (8th Cir. 2000)………44 Dennis v. Columbia Colleton Medical Center, 290 F.3d 639, 647 (4th Cir. 2002)…….........….38 Desert Palace, Inc. v. Costa, 539 U.S. 190, 123 S. Ct. 2148 (2003)……………….……...…...21 Doe v. An Oregon Resort, 98-6200-HO (D.C. Oregon 2001)…………………………........…..27 Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000)………...…………..38 EEOC v. Bell Leasing, Inc., Civil Action No. 2:16-cv-02848 (D. Arizona)…………...……….32 EEOC v. Dura Automotive Systems, Inc., Civil Action No. 1:09-cv-00059 (M.D. Tenn.)………………………………………………………………………………..…31 EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)……………………...……….…..38 Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 4 of 50 PageID 291 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 5 of 50 EEOC v. LHC Group, Inc., No. 13-60703 (5th Cir. 12/11/2014)…………….……….…….…..35 Fields v. J.C. Penney Company, Inc., 968 F.2d 533, 536 (5th Cir. 1992)…………..………..…46 Fierros v. Texas Dep’t of Health, 274 F.3d 187, 190-191 (5th Cir. 2001)………….…….…….20 Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir. 1999)……………..….………44 Fredenburg v. Contra Costa County Department of Health Services, 172 F.3d 1176, 9 AD Cas. 385 (9th Cir.1999)……………….…………………….…………24 Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 477 (5th Cir. 2015)……..……………….38 Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 237 (5th Cir. 2016)…….……….…......21, 38 Hunt v. Rapides Healthcare Sys., 277 F.3d 757, 768 (5th Cir. 2001)…………….……………36 Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 603 (7th Cir. 1999)……………………….27 Krocka v. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997)…………………………….………..25 Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999)………………………………43 Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)…………………….38, 40, 46 Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006) (cert. denied)………....….36 Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004)……………………………………….……45 Perfetti v. First Nat’l Bank, 950 F.2d 449, 456 (7th Cir. 1991)……...………………….………38 Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008)………………........…………..…….39 Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S. Ct. 486 (1962)………..…20 Rehling v. City of Chicago, 207 F.3d 1009 (7th Cir. 2000)……………………………….……..44 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000)…..……37 Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 7 AD Cas. (BNA) 779 (10th Cir.1997)…………………………………..…..25 Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)...……………...…….37 Sanstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)…………………………45 Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 5 of 50 PageID 292 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 6 of 50 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999)…………………………………44 St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993)………………………………….37 Talanda v. KFC Nat. Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998)…………...……20 Taylor v. Phoenixville School District, 184 F.3d 296 (3rd Cir. 1999)………………..…………44 Thornbrough v. Columbus & Greenville R. Co., 760 F.2d 633, 640 (5th Cir. 1985)……….….20 Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1167 (6th Cir. 1996)………………..………..38 Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam)……………………………………22 Transource Intern., Inc. v. Trinity Industries, Inc., 725 F.2d 274, 279 (5th Cir. 1984)…..…...20 Warshaw v. Concentra Health Services, 719 F. Supp. 2d 484 (E.D. Pa. 2010)…...……..…….33 Zenor v. El Paso Healthcare Sys. Ltd., 176 F.3d 847, 853 (5th Cir. 1999)………….………….35 Statutes Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq…………….…7, 45 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq........................8, 24, 40, 43 Texas Commission on Human Rights Act ("TCHRA")…………………………………………19 Texas Labor Code § 21.051…………………………………………………………………….…7 29 U.S.C. § 623(a)……………………………………………………………….………………45 42 U.S.C. §§ 12101-12117, 12201-12213…………………………………………………….…24 42 U.S.C. §12111(3)…………………………………………………………………….….……27 42 U.S.C. §12112(d)(4)(A)(1994)………………………………………………………….……24 42 U.S.C. § 12112(b)(5)(A)………………………………………………………………….24, 40 Other Authorities EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act at www. www.eeoc.gov/policy/docs/guidance-inquiries....................... 23, 26 EEOC Enforcement Guidance on Reasonable Accommodations and Undue Hardship Under the Americans with Disabilities Act at www.eeoc.gov/policy/docs/accommodation..............................................................................43 Fifth Circuit Pattern Jury Charges 11.1, 11.5 (2014)…………………………………….......…..21 S. Rep. No. 101-116, at 39 (1989); H.R. Rep. No. 101-485, pt. 2, at 75 (1990)………………...24 Texas Pattern Jury Charge 107.6, 107.9 (2014)……………………………………………….…21 29 C.F.R. §1630.2(r)(1998)……………………………………………………………….....26, 27 29 C.F.R. §1630.14 (c) (1998)……………………………………………………………...…....24 Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 6 of 50 PageID 293 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 7 of 50 TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Plaintiff, WENDY BARNARD, respectfully presents this her Brief in Support of Response in Opposition to Defendant’s Motion for Summary Judgment, and would show the Court as follows: I. INTRODUCTION This is an action for disability discrimination in employment and failure to accommodate Plaintiff’s disabilities and use of prescribed medication in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the ADA Amendments of 2008 and § 21.051 of the Texas Labor Code as well as age discrimination in employment in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. and § 21.051 of the Texas Labor Code. As referenced herein below “Ptf. App.” refers to the page numbers of Plaintiff’s Appendix filed concurrently herewith in support of Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment. As referenced herein below “Def. App.” refers to the page numbers of Defendant’s Appendix previously filed in support of Defendant’s Motion for Summary Judgment. II. RESPONSE TO DEFENDANT’S ALLEGED STATEMENT OF UNDISPUTED MATERIAL FACTS, AND PLAINTIFF’S STATEMENT OF MATERIAL FACTS PRECLUDING SUMMARY JUDGMENT 1. Plaintiff Wendy Barnard is former 16-year employee of Defendant L-3 Communications Integrated Systems L.P. (“L-3”) in Greenville, Texas having commenced her employment with L-3 in 1999. Ptf. App. 130. Plaintiff was 49 years old at the time of her employment termination from L-3 on May 5, 2015. Ptf. App. 130. 2. In 2015 and at the time of her termination Plaintiff was working as a Material Requirements Planner (“MRP”) in the Material Master Group in the Procurement Department Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 7 of 50 PageID 294 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 8 of 50 and one of the older and more tenured employees in her department under her supervisors Christopher J. (“Jaret”) Lytle (approx. age 31) and Regina Chandler. Ptf. App. 130. 3. Plaintiff’s sedentary desk computer job duties involved sitting at an office desk working at a computer daily. Ptf. App. 130. Plaintiff did not work on or operate heavy equipment, trucks, forklifts or scooters or work in the shops or on the flight line or on aircraft as part of her job. Ptf. App. 130. Due to the nature of her sedentary desk computer work Plaintiff was not a direct or physical threat to harm herself or others by virtue of the type of sedentary desk computer job duties that she performed at L-3. Ptf. App. 5-6, 19 (Ptf. Depo., p. 20, ll. 10- 25; p. 21, ll. 1-11; p. 93, ll. 15-25); Ptf. App. 130-131. 4. During Plaintiff’s employment with L-3 she suffered from the disclosed disabilities of Attention Deficit Hyperactivity Disorder (“ADHD”) and chronic back pain from a degenerative back condition with bulging discs at L4-5, L5-S1, and she took legally prescribed medication including Adderall for ADHD and Hydrocodone for back pain. Ptf. App. 12-13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. Plaintiff disclosed her ADHD and back pain to L-3’s nurses and medical personnel as well as to her much younger supervisor Jaret Lytle (approx. age 31) and supervisor Regina Chandler during her employment and prior to her termination. Ptf. App. 12-13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. 5. During Plaintiff’s employment with L-3 her ADHD substantially limited her in the major life activities of thinking, learning and concentrating. Ptf. App. p. 131; Def. App. 126-130. Plaintiff disclosed her ADHD impairments with needs for accommodation to her supervisor Jaret Lytle and requested and received accommodations from L-3 to be allowed to Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 8 of 50 PageID 295 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 9 of 50 print screens and take handwritten notes to facilitate her learning while in training on her job. Ptf. App. 17 (Ptf. Depo., p. 87, 23-25; p. 88, ll. 1-16); Ptf. App. 131. 6. During her employment with L-3 Plaintiff also suffered from chronic back pain from a degenerative back condition with bulging discs at L4-5, L5-S1 substantially limiting her in walking, standing, bending and stooping. Ptf. App. 14 (Ptf. Depo., p. 76, ll. 10-22); Ptf. App. 131. Plaintiff informed her supervisors Jaret Lytle and Regina Chandler of her degenerative back condition with needs for accommodation, and a special ergonomic desk chair was ordered for her by L-3 at her request given her back condition and disclosed physical therapy appointments for her back but Plaintiff was told her physical therapy appointments were too repetitive and she would be charged PTO and not be allowed to make up her time. Ptf. App. 12- 13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. 7. Plaintiff has a history and record of her disabilities on file with L-3 as her medication records with L-3 show the prescribed medications she was taking for said disabilities. In 2015 Plaintiff never took any illegal drugs while employed by L-3. Ptf. App. 131-132. In 2015 (the year Plaintiff was suspended and terminated by L-3) Plaintiff never took any illegal drugs while employed by L-3. In 2015 Plaintiff only took prescribed medications as prescribed by her health care providers. Ptf. App. p. (Ptf. Depo., p.); Ptf. App. 131-132. 8. In 2009 Plaintiff was prescribed the amphetamine Adderrall by her doctor for her medically diagnosed ADHD with learning disability. Ptf. App. 17 (Ptf. Depo., p. 85, ll. 10-18); Ptf. App. 132, 144; Def. App. 126-130. In July 2009 Plaintiff was given a random drug screening by L-3 at which time Plaintiff disclosed that she was taking prescribed Adderall for her ADHD, and Plaintiff considered that to be a request that she be allowed to take Adderall as prescribed to treat her chronic ADHD. Ptf. App. 132. When Plaintiff was asked if anything Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 9 of 50 PageID 296 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 10 of 50 would show up on the drug test she responded that Adderall would as Plaintiff took that for her diagnosed ADHD. Ptf. App. 132. 9. Plaintiff took the drug test, and it was in fact positive for amphetamines, an ingredient in the Adderall Plaintiff was legally prescribed by her doctor. When asked by L-3’s nurse why Plaintiff took Adderall Plaintiff responded that it was prescribed by her doctor because of her ADHD as Plaintiff had a learning disability. Ptf. App. 132. Plaintiff was requested by L-3’s nurse to go to her pharmacy to get a recent record of her prescriptions for Adderall, and she did. Ptf. App. 132. 10. Plaintiff was not disciplined or terminated by L-3 in 2009, and she was allowed to return to work. Plaintiff was not told or instructed that she could not take the Adderall prior to coming to work or at any other time so apparently L-3 was not overly concerned about her taking the prescribed Adderall. Ptf. App. 132. 11. In 2015 Plaintiff had very good attendance at work, and she was performing her job duties with no counselings or warnings from L-3 regarding her performance or job attendance in 2015. Ptf. App. 132. Other than some attendance issues Plaintiff had in prior years her work record at L-3 over her 16 years of employment there was very good (Plaintiff’s last three most recent annual performance reviews were all Fully Meets Standards). Ptf. App. 106-121 (copies of last three performance reviews produced by L-3); Ptf. App. 132. 12. In August 2014 Plaintiff was prescribed Hydrocodone by her doctor to address her back pain from her degenerative back condition with bulging discs at L4-5, L5-S1. Ptf. App. 133. On March 20, 2015 Plaintiff volunteered and told her supervisor Jaret Lytle that she was taking prescription medication Hydrocodone for her back pain, and he sent her to L-3’s medical department for an assessment only after Plaintiff disclosed same. Ptf. App. 133. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 10 of 50 PageID 297 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 11 of 50 13. Plaintiff disclosed to the attending nurse (now believed to be Rachel Lancaster from information produced by L-3 in discovery) that Plaintiff was taking Hydrocodone as prescribed for her back pain due to a degenerative back condition. Ptf. App. 133. Initially, the L-3 nurse Rachel Lancaster told Plaintiff not to take the prescribed medication 4-6 hours prior to coming to work in the mornings before changing her position after Plaintiff explained to her the nature of her sedentary desk computer job duties. Ptf. App. 4, 18-19 (Ptf. Depo., p. 20, ll. 12-25, p. 21, ll. 1-11, p. 90, ll. 23-25, p. 91, ll. 1-23, p. 93, ll. 4-6, 15-25, p. 94, ll. 1-19); Ptf. App. 133. 14. Plaintiff explained to L-3’s nurse Rachel Lancaster on March 20, 2015 that Plaintiff worked on a computer exclusively at a sedentary desk job and that Plaintiff did not work in the shops or work on or operate heavy equipment or work on aircraft or the flight line so there was no way she could hurt herself or others. Ptf. App. p. 4-5 (Ptf. Depo. p. 20, ll. 20- 25, p. 21, ll. 1-11); Ptf. App. 133. The L-3 nurse Rachel Lancaster asked Plaintiff if the medication made Plaintiff dizzy or drowsy, and Plaintiff responded that it did not. Ptf. App. 133. 15. The L-3 nurse Rachel Lancaster then told Plaintiff that she did not see why Plaintiff could not take the medication as prescribed as long as she did not climb stairs (which she did not at work). Ptf. App. 133. The L-3 nurse Rachel Lancaster told Plaintiff that Plaintiff looked and seemed fine, and it would be ok for Plaintiff to take the Hydrocodone and medication as prescribed and that she would let Plaintiff’s supervisor Jaret Lytle know it was all ok, and Plaintiff assumed that Rachel Lancaster did so as she represented to Plaintiff. Ptf. App. 18, 19 (Ptf. Depo., p. 91, ll. 13-23, p. 93, ll. 10-25, p. 94, ll. 1-19); Ptf. App. 133. 16. Plaintiff was not even drug tested on March 20, 2015 so the L-3 nurse was obviously not concerned enough about Plaintiff’s state to do any drug test on any suspicion of Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 11 of 50 PageID 298 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 12 of 50 impairment. Ptf. App. 19 (Ptf. Depo., p. 93, ll. 4-6); Ptf. App. 133-134. It is also telling that L- 3 has not provided any declaration or affidavit from its own nurse employee Rachel Lancaster in this case. Ptf. App. 5-6, 18-19 (Ptf. Depo, p. 20, ll. 12-25; p. 21, ll. 1-11; p. 91, ll. 3-23; p. 93, ll. 7-25, p. 94, ll. 1-9); Ptf. App. 134. 17. Shortly thereafter in April 2015 Plaintiff was told by Regina Chandler, her second level supervisor, in a staff meeting that the Procurement Department would be downsizing but the Material Master Group, which was the group Plaintiff was in, would be unaffected. However, Plaintiff had been assigned duties as a trainer for a much younger inter-department transfer. This was only a week or so before Plaintiff was selected for a drug test. Ptf. App. 6, 8-9, 10 (Ptf. Depo., p. 21, ll. 22-25; p. 22, ll.1-18, p. 24, ll. 4-25, p. 25, ll. 1-12, p. 32, ll. 5-25, p. 33, ll. 1-25, p. 19-25, p. 40, ll. 1-16); Ptf. App. 134. 18. On April 22, 2015, Plaintiff attended a company staff meeting but was not lethargic or out of it on that date as now contended by Plaintiff’s former supervisors Jaret Lytle and Regina Chandler. Plaintiff did pay attention at the meeting as she always did, and Plaintiff was not sent for a medical assessment then or even addressed or counseled at all about any such contention by her supervisors. Ptf. App. 134. 19. On or about April 22, 2015 Plaintiff had a cosmetic procedure done on her lips to make them more full as she had thin lips. However, the procedure produced swollen lips with three unsightly ugly fever blisters. Ptf. App. 11 (Ptf. Depo., p. 46, ll. 3-19, p. 47, ll. 1-25, p. 48, ll. 1-7); Ptf. App. 134. On April 24, 2015 Plaintiff had taken her medically prescribed Hydrocodone prior to coming to work for her chronic back pain as the L-3 nurse Rachel Lancaster had told Plaintiff it was fine to do so given the nature of her sedentary desk computer Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 12 of 50 PageID 299 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 13 of 50 job duties. Ptf. App. 134. Plaintiff drove to work without any problem and arrived to work timely as usual. Ptf. App. 134. 20. On that morning of April 24, 2015, Plaintiff saw coworker Susan Payne in the restroom at work, and Plaintiff was friendly to her. Ptf. App. 134. Plaintiff was looking at her swollen lips and fever blisters in the restroom mirror as she had put ointment on them for the stinging. Ms. Payne saw Plaintiff’s swollen lips and unsightly fever blisters and appeared offended by what she saw as she took three steps back. Ptf. App. 134. Apparently Ms. Payne immediately went straight to Plaintiff’s supervisor Jared Lytle and complained about Plaintiff’s appearance as shortly thereafter Jaret Lytle contacted Plaintiff saying someone told him that Plaintiff did not seem herself, and he escorted Plaintiff to the medical department, and Plaintiff was given a drug screening. Ptf. App. 20-21 (Ptf. Depo., p. 99, ll. 20-25, p. 100, ll. 1-25, p. 101, ll. 1-25 ); Ptf. App. 134-135. 21. Plaintiff did not have slurred speech on April 24, 2015 although the painful three ugly fever blisters on her swollen lips stung and made it more difficult to talk. Plaintiff was not dizzy or drowsy that morning, and Plaintiff had no problems doing her work at all. Ptf. App. 21- 22, 26 (Ptf. Depo., p. 101, ll. 22-25, p. 102, ll. 1-16, p. 103, ll. 23-25, p. 104, ll. 1-25, 105, ll. 6- 25, p. 106, ll. 1-8, p. 127, ll. 5-25, p. 128, ll. 1-23); Ptf. App. 135. The drug test showed positive for amphetamines which are present in Adderall, the ADHD medication. Ptf. App. 134-135. However, Plaintiff had told the nurse on duty Alita Hammett before she took the drug test on April 24, 2015 that it would test positive for Adderrall amphetamines so it was disclosed prior to the test. Plaintiff had also disclosed use of Adderall before in 2009 for my ADHD so Plaintiff did not think she had to disclose it again on L-3’s medication sheet. Ptf. App. 135. Plaintiff was not fired before for use of Adderall or even told she could not take it. Ptf. App. 135. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 13 of 50 PageID 300 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 14 of 50 22. On April 24, 2015, L-3 suspended Plaintiff, and Plaintiff was subsequently terminated by L-3 effective May 5, 2015 following the drug screening on April 24, 2015. Prior to Plaintiff’s termination Plaintiff had disclosed her Adderall and Hydrocodone prescriptions at issue to L-3. In 2009 Plaintiff’s previous drug screening showed the presence of Adderall amphetamines but Plaintiff was not terminated or disciplined at that time. Ptf. App. 135. 23. Upon being suspended on April 24, 2015 Plaintiff provided L-3 with evidence of her most recent prescriptions for Adderall and Hydrocodone prior to her termination. On May 5, 2015 Plaintiff was fired without justification after 16 years of dedicated employment at L-3 after a drug test revealed substances in Plaintiff’s prescribed medications and testing positive for amphetamine (Adderall). Ptf. App. 135. Plaintiff has a history of such disclosed ADHD disability at L-3 as Plaintiff was allowed to return to work for Defendant in 2009 after testing positive for the same drug Adderall during a random drug test on July 23, 2009. Ptf. App. 135- 136. 24. When Plaintiff was fired she was well qualified for her position as her most recent three annual performance reviews produced by L-3 will show (all of them were Fully Meets Standards). Ptf. App. 106-121 (copies of last three performance reviews produced by L-3), 132- 133, 136. Plaintiff was one of the older more tenured employees in her department for L-3, and Plaintiff had just finished training a much younger employee Heather Dixon (then ~38 years old) who had no apparent disabilities. Ptf. App. 6-7, 8 (Ptf. Depo. p. 21, ll. 22-25, p. 22, ll. 1-18, p. 24, ll. 4-25, p. 25, ll. 1-16, p. 29, ll. 7-17, p. 31, ll. 17-25); Ptf. App. 136. 25. Plaintiff was not offered any warning in lieu of termination or offered any counseling or corrective action or other alternatives, and Plaintiff was not given full opportunity to explain or rectify the test results per section 3.3D of L-3’s Substance Abuse Policy and Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 14 of 50 PageID 301 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 15 of 50 Control Program (Corporate Policy No. 305) (see Ptf. App. 127). Plaintiff had always been able to perform the essential functions of her job for L-3 with the assistance and use of her prescribed medications. Ptf. App. p. (Ptf. Depo., p. ); Ptf. App. 136. 26. After Plaintiff’s termination Carrie Ingram (then ~38 years old and about 10 years younger than Plaintiff), a transfer from the Purchasing Department, assumed Plaintiff’s former job duties and responsibilities according to information provided by L-3 in interrogatory answers in discovery. Ptf. App. p. 95 (Defendant’s Answer to Plaintiff’s Interrogatory No. 6); Ptf. App. 12 (Ptf. Depo., p. 66, ll. 4-7). Ms. Ingram is now about 40 years old and nearly 10 years younger than Plaintiff. Ptf. App. p. 95 (Defendant’s Answer to Plaintiff’s Interrogatory No. 6); Ptf. App. 136. 27. Plaintiff was not given the same projects and opportunities to train in her work group like her much younger colleague Heather Dixon. Ptf. App. 7 (Ptf. Depo., p. 28, ll. 10-23); Ptf. App. 136. In fact, Plaintiff helped train Ms. Dixon to succeed to her position and trained Plaintiff Ms. Dixon at the request of her second level Regina Chandler who said in April 2015 there would be a layoff or reduction coming in her department of approximately 40 employees headed by Marc Scott. Ptf. App. 8 (Ptf. Depo., p. 24 , ll. 4-19, p. 32, ll. 5-25); Ptf. App. 136. 28. L-3 has now stated three reasons for Plaintiff’s termination, and all reasons are flawed and inaccurate. First, L-3 contends that Plaintiff was fired for reporting to work on April 24, 2015 with slurred speech and being incoherent and impaired in the working area. That is false and disputed as Plaintiff did not have slurred speech, and Plaintiff was coherent and not impaired in the working area. Ptf. App. 21-22, 26 (Ptf. Depo., p. 101, ll. 22-25, p. 102, ll. 1-16, p. 103, ll. 23-25, p. 104, ll. 1-25, 105, ll. 6-25, p. 106, ll. 1-8, p. 127, ll. 5-25, p. 128, ll. 1-23); Ptf. App. 137. Plaintiff did have three ugly fever blisters on her swollen lips but she could talk Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 15 of 50 PageID 302 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 16 of 50 fine and was coherent and doing her job without impairment, dizziness or drowsiness. Ptf. App. 137. 29. Second, L-3 claims that Plaintiff violated L-3 policy and disregarded specific instructions not to take narcotic pain medication before coming to work. That is false and disputed as the L-3 nurse told Plaintiff on March 20, 2015 that it was ok to take her prescribed Hydrocodone medication prior to coming to work given the nature of her sedentary desk job duties. Ptf. App. p. 5-6 (Ptf. Depo. p. 20, ll. 20-25, p. 21, ll. 1-11); Ptf. App. 18, 19 (Ptf. Depo., p. 91, ll. 13-23, p. 93, ll. 10-25, p. 94, ll. 1-19); Ptf. App. 133, 137. L-3’s own business records show that per the handwritten qualifying conditional entry of the nurse (Rachel Lancaster) on March 20, 2015 (see Ptf. App. 104, Def. App. 148) who wrote that Plaintiff had a sedentary desk job and that she should not take Hydrocodone 6 hours before work only if Plaintiff had dizziness or drowsiness (which she did not then). Ptf. App. 137. 30. Third, L-3 claims that Plaintiff failed to disclose that she was taking Amphetamines (Adderall) on a required Medical Information form in violation of company policy. However, Plaintiff did indeed disclose to the L-3 nurse on duty Alita Hammett on April 24, 2015 prior to the drug test that Plaintiff was taking Adderall amphetamine and it would test positive so it was in fact disclosed even though Plaintiff had not written it down on the medication sheet a month earlier when no drug test was even given then. Ptf. App. 137. Defendant’s own form shows the prescribed Adderrall was disclosed and written down on April 24, 2015. Ptf. App. 104; Def. App. 148. 31. Plaintiff had already disclosed in 2009 that she took Adderall for ADHD so L-3 was well aware of that, and Plaintiff did not realize that she needed to list it yet again when Plaintiff had already disclosed her ADHD and use of Adderall to treat it. Ptf. App. 137. In any Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 16 of 50 PageID 303 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 17 of 50 event, Plaintiff explained that upon the results of the drug screen on April 24, 2015, and L-3 should have considered that as Plaintiff’s supervisor Jaret Lytle was well aware that she had ADHD and took medication for it. Ptf. App. 137-138. 32. Plaintiff was not given full opportunity to explain the test results per company policy. Ptf. App. 137. Prior to the drug test on April 24, 2015 Plaintiff was not aware of any alleged company policy applicable to all the employees that specifically stated that all employees were not allowed to take any narcotic pain medicine, muscle relaxers, sedatives, tranquilizers or anti-anxiety medication less than six hours prior to coming to work. Ptf. App. 137-138. 33. In fact, the L-3 medication information sheet form (Ptf. App. 146) was not revised to reflect any policy change or warning until August 2015, well after Plaintiff was terminated in May 2015. Ptf. App. 146. All of L-3’s written policies produced contain no such warnings. 34. In any event, Plaintiff explained that to Alita Hammett upon the results of the drug screen on April 24, 2015, and L-3 should have considered that as Plaintiff’s supervisor Jaret Lytle was also well aware that Plaintiff had ADHD and took medication for it. Ptf. App. 138. Ms. Hammett said that Plaintiff should consult with her physician about obtaining a non-narcotic pain medicine to take at work but instead Plaintiff was suspended and fired without any accommodation or opportunity to do so. Ptf. App. 138. 35. Plaintiff was not given the opportunity to do so or explain test results per company policy or any opportunity to rectify the situation with L-3 through her physician or even through a referral by L-3 to the employee assistance program as an accommodation per company policy in lieu of termination. Ptf. App. 138. 36. Plaintiff was emotionally and financially devastated by her firing from L-3 as Plaintiff loved her job and was a good performer even helping to train others. Ptf. App. 25 (Ptf. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 17 of 50 PageID 304 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 18 of 50 Depo. p. 124, ll. 13-25); Ptf. App. 138. Plaintiff has suffered many sleepless nights, panic attacks, anxiousness, depression, sweating and emotional distress from losing her 16-year job with L-3. Plaintiff lost her health insurance and could no longer afford the same level of medical care and prescriptions for her disabilities. Ptf. App. 14, 17 (Ptf. Depo., p. 75, ll. 3-5, p. 85, ll. 19- 25); Ptf. App. 138. 37. Plaintiff did not receive any severance pay after 16 years of dedicated productive service with L-3. Plaintiff’s Nissan Frontier automobile was repossessed because she was no longer able to pay her monthly car note installments due to the loss of her L-3 job. Ptf. App. 28 (Ptf. Depo. p. 153, ll. 4-7); Ptf. App. 138. 38. As a result of the loss of her L-3 job and compensation with L-3 Plaintiff had to file for Chapter 13 bankruptcy in June 2015 because she could no longer afford to pay her bills. Ptf. App. 4 (Ptf. Depo. p. 14, ll. 1-14); Ptf. App. 138. Plaintiff has disclosed her claims and this lawsuit against L-3 to the bankruptcy court and trustee through her bankruptcy attorney and is authorized to pursue same with the attendant costs. Ptf. App. 138. 39. Despite L-3’s opposition to Plaintiff’s unemployment benefit claim necessitating her appeal the Texas Workforce Commission found after review of the evidence that there was no misconduct on Plaintiff’s part as alleged to disqualify her from receiving unemployment benefits. Ptf. App. 138-139. Despite diligent continuous efforts to find another job it took Plaintiff nearly a year to find another job and at a lesser rate of pay than L-3. Ptf. App. 14 (Ptf. Depo., p. 74, ll. 3-12, p. 76, ll. 4-9); Ptf. App. 139. 40. Defendant L-3 has a Substance Abuse Policy and Control Program (Policy No. 305) (Ptf. App. 123-128) as well as a Substance Abuse Policy (Ptf. App. 34-59) (revised Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 18 of 50 PageID 305 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 19 of 50 effective April 1, 2015) which apply equally to all employees of its Greenville, Texas location regardless of their job function. Ptf. App. 45, 102, 123; Def. App. 22. 41. Section 2.06 (Ptf. App. 124) of L-3’s Substance Abuse Policy and Control Program (Corporate Policy No. 305) (Ptf. App. 123-128) states in pertinent part with regard to a drug screen: “If the results of this screen show that the employee has misused a prescription medication for which the employee has a prescription, then the employee will be advised to contact his or her physician to rectify the situation.” 42. Section 3.3D of said policy also provides that the employee tested be given full opportunity to explain the test results (see Ptf. App. 127), and Plaintiff was not afforded said opportunity to explain the test results per company policy and the fact that she was told by the L- 3 nurse Rachel Lancaster that it was ok to take Hydrocodone for her back pain prior to coming to work given the nature of her sedentary desk job duties. Ptf. App. 133, 137. 43. Plaintiff was not accommodated by Defendant L-3 to allow her physician to rectify any alleged problem with her taking prescription medications before returning to work as a followup to the April 24, 2015 drug screen pursuant to the aforesaid L-3 policy. Ptf. App. 138. 44. Plaintiff was not offered any referral to the company employee assistance program in accordance with company policy stating that an employee whose drug screen is confirmed positive will be offered the option of participating in the employee assistance program. Ptf. App. 127, 137. 45. Instead Plaintiff was fired on May 5, 2015 without any discussion of any reasonable accommodation for Plaintiff or any engagement by L-3 in the ADA interactive process by L-3. Ptf. App. 135, 138. III. ARGUMENT AND AUTHORITIES SUPPORTING DENIAL OF SUMMARY JUDGMENT Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 19 of 50 PageID 306 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 20 of 50 A. Summary Judgment Standard of Review The Fifth Circuit has noted that summary judgment is "drastic relief" and must be approached cautiously. Transource Intern., Inc. v. Trinity Industries, Inc., 725 F.2d 274, 279 (5th Cir. 1984). Because of the drastic nature of the summary judgment remedy precluding trial by jury, it should not be granted unless the moving party has established the right to a judgment with such clarity that there is no room for controversy. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The United States Supreme Court has recognized that summary judgment is rarely appropriate in cases such as the instant case where intent and motive play critical roles and all the evidence is in the hands of the other side (e.g., the employer/moving party). See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S. Ct. 486 (1962). Summary judgment is rarely appropriate in employment discrimination cases. Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000). Numerous courts have recognized that because employment cases involve questions of motive, intent and credibility, summary judgment is rarely appropriate. See, e.g., Fierros v. Texas Dep’t of Health, 274 F.3d 187, 190- 191 (5th Cir. 2001) (“The Supreme Court recently emphasized the paramount role that juries play in Title VII cases, stressing that in evaluating summary judgment evidence, courts must refrain from the making of credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, which are jury functions, not those of a judge.”); Thornbrough v. Columbus & Greenville R. Co., 760 F.2d 633, 640 (5th Cir. 1985). Credibility and intent are crucial issues in employment discrimination cases, and thus the summary judgment record should be reviewed carefully. Talanda v. KFC Nat. Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 20 of 50 PageID 307 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 21 of 50 Lobby, Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enterprises, Inc. v. American Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981). In Desert Palace, Inc. v. Costa, 539 U.S. 190, 123 S. Ct. 2148 (2003), the Supreme Court held that a plaintiff does not have to present direct evidence of discrimination in order to obtain a mixed-motive instruction in an employment discrimination case. Hence, under the mixed- motive framework, a plaintiff need only demonstrate, by either direct or circumstantial evidence, that the employer was “motivated” to take the adverse employment action for a forbidden reason-the fact that permissible reasons also motivated the employer’s decision does not prevent a finding of liability. The Texas and Fifth Circuit employment pattern jury charges for employment discrimination and retaliation specifically explain to jurors there can be more than one reason for an employment decision and the plaintiff does not have to prove that illegal discrimination or retaliation was the only reason for the employer’s adverse actions. Fifth Circuit Pattern Jury Charges 11.1, 11.5 (2014); Texas Pattern Jury Charge 107.6, 107.9 (2014). In Heinsohn v. Carabin & Shaw, P.C., No. 15-50300 (5th Cir. August 9, 2016) the Fifth Circuit recently reversed summary judgment in a pregnancy discrimination case, decided under the Texas Commission on Human Rights Act ("TCHRA") codified in the Texas Labor Code. The Fifth Circuit found that even an employee’s “self-serving” testimony created a material fact question precluding summary judgment. The Fifth Circuit held that the plaintiff presented a genuine dispute of material fact about each of two reasons that the employer, a law firm, gave for her termination. The opinion reminds employers that simply keeping records of an employee's supposed violations is not enough to avoid a trial, and that the plaintiff's own testimony about the records deserves equal dignity. The panel concludes that the lower court "erred in rejecting Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 21 of 50 PageID 308 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 22 of 50 Heinsohn's statements as self-serving and accepting Shaw's, Escobedo's, Caravajal's, and Rendon's," noting "that Heinsohn's statements are no more and no less self-serving than those of the others." Indeed, the panel states, "[i]f we toss Heinsohn's deposition, we must also toss the depositions, affidavits, and declarations of the others for the same reason. To hold otherwise would signal that an employee's account could never prevail over an employer's. This would render an employee's protections against discrimination meaningless." Id. See also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam) (court may not improperly weigh evidence and resolve disputed issues or testimony in favor of summary judgment movant). B. L-3’s Substance Abuse Policies Requiring All Employees to Disclose All Prescription Drugs Are Unlawful Under the ADA and Texas Labor Code and Proves Disability Discrimination Against Plaintiff Who Was Not a Direct Threat Under ADA Defendant L-3 has a Substance Abuse Policy and Control Program (Policy No. 305) (Ptf. App. 123-128) as well as a Substance Abuse Policy (Ptf. App. 34-59) which apply equally to all employees of its Greenville, Texas location regardless of the nature of their job functions. Ptf. App. 45, 123. Defendant L-3 also has a Substance Abuse Policy (revised effective April 1, 2015) (Ptf. App. 34-59). Defendant’s substance abuse policies should be declared unlawful as they do not comply with the ADA as written, and they do not comply with the ADA as applied to Plaintiff in this case. Section 2.6 (Ptf. App. 124) of L-3’s Substance Abuse Policy and Control Program (Corporate Policy No. 305) (Ptf. App. 123-128) states in pertinent part with regard to a drug screen: “If the results of this screen show that the employee has misused a prescription medication for which the employee has a prescription, then the employee will be advised to contact his or her physician to rectify the situation.” Defendant fired Plaintiff on May 5, 2015 without engaging in any discussion with Plaintiff about same. Section 3.3D of said policy also provides that the employee tested be given full opportunity to explain the test results (see Ptf. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 22 of 50 PageID 309 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 23 of 50 App. 127), and Plaintiff was not afforded said full opportunity to explain the test results per company policy and acceptance of the fact that she was told by the L-3 nurse Rachel Lancaster that it was ok to take Hydrocodone for her back pain prior to coming to work given the nature of her sedentary job duties. Ptf. App. 133, 137. Plaintiff was not accommodated by Defendant L-3 to allow her physician to rectify any alleged problem with her taking prescription medications before returning to work as a followup to the April 24, 2015 drug screen pursuant to the aforesaid L-3 policy. Plaintiff was not offered any referral to the company employee assistance program in accordance with company policy stating that an employee whose drug screen is confirmed positive will be offered the option of participating in the employee assistance program. Ptf. App. 127, 138. Instead Plaintiff was fired on May 5, 2015 without any discussion of any reasonable accommodation or engagement in the ADA interactive process by L-3. Historically, many employers have asked applicants and employees to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities -- particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and mental illness -- despite their ability to perform the job. EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act at www.eeoc.gov/policy/docs/guidance-inquiries. Ptf. App. 62. The ADA's provisions concerning disability-related inquiries and medical examinations reflect Congress's intent to protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to ensure that individuals in the workplace can efficiently perform the essential functions of their jobs. In the ADA legislative history, Congress stated that an employee's Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 23 of 50 PageID 310 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 24 of 50 "actual performance on the job is, of course, the best measure of ability to do the job." S. Rep. No. 101-116, at 39 (1989); H.R. Rep. No. 101-485, pt. 2, at 75 (1990). Title I of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101- 12117, 12201-12213 (1994) (codified as amended) limits an employer's ability to make disability-related inquiries or require medical examinations during employment. Ptf. App. 62. After employment begins an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. 42 U.S.C. §12112(d)(4)(A)(1994); 29 C.F.R. §1630.14 (c) (1998). The ADA’s requirements regarding disability-related inquiries and medical examinations apply to all of the employees of a covered employer, whether or not they have disabilities. Unlike suits based solely on a failure to provide a reasonable accommodation, this provision is not limited to qualified individuals with disabilities. Cf. 42 U.S.C. § 12112(b)(5)(A); Fredenburg v. Contra Costa County Department of Health Services, 172 F.3d 1176, 9 AD Cas. 385 (9th Cir. 1999) (requiring plaintiffs to prove that they are persons with disabilities to challenge a medical examination would render §12112(d)(4)(A) of the ADA "nugatory"; thus, plaintiffs need not prove that they are qualified individuals with a disability to bring claims challenging the scope of medical examinations under the ADA). Unlike drug tests for illegal drugs, the U.S. Equal Employment Opportunity Commission (“EEOC”) considers tests for prescription medications to be medical examinations under the ADA, and therefore, such tests must be “job-related and consistent with business necessity.” Regulated disability-related inquiries may include asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee's taking of such drugs or medications. See Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 24 of 50 PageID 311 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 25 of 50 Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 7 AD Cas. (BNA) 779 (10th Cir. 1997) (employer like L-3 in the instant case had an unlawful policy of requiring all employees to report every drug, including legal prescription drugs, in violation of the ADA); Krocka v. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997) (police department implemented a policy of monitoring employees taking psychotropic medication). Generally, an employer may not ask all employees what prescription medications they are taking. Ptf. App. 70, 90. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. See Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221, 1229, 7 AD Cas. (BNA) 779, 784 (10th Cir. 1997) (employer, who implemented a drug and alcohol policy that included many permissible inquiries but also asked employees to inform the employer of every drug they were taking, including legal prescription drugs, violated the ADA by failing to demonstrate that this inquiry was job-related and consistent with business necessity). In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee's inability or impaired ability to perform essential functions will result in a “direct threat.” For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. However, a fire department, however, could not require fire department employees who perform only administrative Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 25 of 50 PageID 312 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 26 of 50 duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions. EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act at www.eeoc.gov/policy/docs/guidance-inquiries. Ptf. App. 70, 90. Likewise, Plaintiff in the instant case only performed sedentary desk job duties for L-3 and was not a direct threat to herself or others. Any discipline that the employer decides to impose should focus on the employee’s performance problems. Id. Mrs. Barnard received no prior discipline for performance issues other than some attendance issues prior to 2015. If an employer decides to terminate or take other adverse action against an employee with a disability based on the results of a medical examination, it must demonstrate that the employee is unable to perform his/her essential job functions or, in fact, poses a “direct threat” that cannot be eliminated or reduced by reasonable accommodation. “Direct threat” means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. §1630.2(r)(1998). Ptf. App. 82. Direct threat determinations must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or best available objective evidence. Id. To determine whether an employee poses a direct threat, the following factors should be considered: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and, (4) the imminence of the potential harm. Id. Thus, in order to actually remove a person from the job for posing a “direct threat,” the EEOC Guidance requires proof of the following: Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 26 of 50 PageID 313 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 27 of 50 1. Significant risk (high probability) of substantial harm; 2. Identify the specific risk; 3. Show it is a current risk (not speculative, remote or “could develop into . . .”); 4. Objective medical and/or other factual evidence regarding the individual; and 5. Cannot be eliminated by reasonable accommodation. The ADA specifically provides that a person not pose a “direct threat.” 42 U.S.C. §12111(3). Direct threat is defined as “a significant risk to the health and safety of others that cannot be eliminated or reduced by reasonable accommodation.” Id. The EEOC Guidance says risk “to others or to self,” 29 C.F.R. §1630.2(r) and Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 603 (7th Cir. 1999). In Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002), the U.S. Supreme Court verified the EEOC’s interpretation. The Direct Threat Must be “Real.” In Doe v. An Oregon Resort, 98-6200-HO (D.C. Oregon, 2001), the Court ruled that though it was “possible” to transmit, HIV did not pose a “significant risk” of transfer from an infected ski patrol/first aid employee. The direct threat concept cannot be used to have a “play it safe by eliminating all risks” approach. There must be a “real and measurable” risk. The summary judgment evidence here shows that Plaintiff was not a “direct threat” to herself or others, and Defendant’s summary judgment evidence does not show otherwise or that Defendant made any attempt to reduce any alleged “direct threat” of Plaintiff by reasonably accommodating Plaintiff or complying with its policies or engaging in the ADA interactive process. Plaintiff’s sedentary desk computer job duties involved sitting at an office desk working at a computer daily. Plaintiff did not work on or operate heavy equipment, trucks, forklifts or scooters or work in the shops or on the flight line or on aircraft as part of her job. Ptf. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 27 of 50 PageID 314 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 28 of 50 App. 130-131. Due to the nature of her sedentary desk computer work Plaintiff was not a direct or physical threat to harm herself or others by virtue of the type of sedentary desk computer job duties that she performed at L-3. Ptf. App. 5-6, 19 (Ptf. Depo., p. 20, ll. 10-25; p. 21, ll. 1-11; p. 93, ll. 15-25); Ptf. App. 130-131. In August 2014 Plaintiff was prescribed Hydrocodone by her doctor to address her back pain from her degenerative back condition. On March 20, 2015 Plaintiff volunteered and told her supervisor Jaret Lytle that she was taking prescription medication Hydrocodone for her back pain, and he sent her to L-3’s medical department for an assessment only after Plaintiff disclosed same. Ptf. App. 133. Plaintiff disclosed to the attending nurse (now believed to be Rachel Lancaster from information produced by L-3 in discovery) that Plaintiff was taking Hydrocodone as prescribed for her back pain due to a degenerative back condition. Initially, the L-3 nurse Rachel Lancaster told Plaintiff not to take the prescribed medication 4-6 hours prior to coming to work in the mornings before changing her position after Plaintiff explained to her the nature of her sedentary desk computer job duties. Ptf. App. 5-6, 18-19 (Ptf. Depo., p. 20, ll. 12-25, p. 21, ll. 1-11, p. 90, ll. 23-25, p. 91, ll. 1-23, p. 93, ll. 4-6, 15-25, p. 94, ll. 1-19); Ptf. App. 133-134. Plaintiff explained to L-3’s nurse Rachel Lancaster on March 20, 2015 that Plaintiff worked on a computer exclusively at a sedentary desk job and that Plaintiff did not work in the shops or work on or operate heavy equipment or work on aircraft or the flight line so there was no way she could hurt herself or others. Ptf. App. 5-6 (Ptf. Depo. p. 20, ll. 20-25, p. 21, ll. 1-11); Ptf. App. 133. The L-3 nurse Rachel Lancaster asked Plaintiff if the medication made Plaintiff dizzy or drowsy, and Plaintiff responded that it did not. The L-3 nurse Rachel Lancaster then told Plaintiff that she did not see why Plaintiff could not take the medication as prescribed as long as she did not climb stairs (which she did not at work). Ptf. App. 133. The L-3 nurse Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 28 of 50 PageID 315 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 29 of 50 Rachel Lancaster told Plaintiff that Plaintiff looked and seemed fine, and it would be ok for Plaintiff to take the Hydrocodone and medication as prescribed and that she would let Plaintiff’s supervisor Jaret Lytle know it was all ok, and Plaintiff assumed that Rachel Lancaster did so as she represented to Plaintiff. Plaintiff was not even drug tested on March 20, 2015. It is telling that L-3 has not provided any declaration or affidavit from its own nurse employee Rachel Lancaster in this case. Ptf. App. 5-6, 18-19 (Ptf. Depo, p. 20, ll. 12-25; p. 21, ll. 1-11; p. 91, ll. 3-23; p. 93, ll. 7-25, p. 94, ll. 1-9); Ptf. App. 133-134. Plaintiff did not have slurred speech on April 24, 2015 although the painful three ugly fever blisters on her swollen lips stung and made it more difficult to talk. Plaintiff was not dizzy or drowsy that morning, and Plaintiff had no problems doing her work at all. The drug test showed positive for amphetamines which are present in Adderall, the ADHD medication. Ptf. App. 135. However, Plaintiff had told the nurse on duty Alita Hammett before she took the drug test on April 24, 2015 that it would test positive for Adderrall amphetamines so it was disclosed prior to the test. Plaintiff had also disclosed use of Adderall before in 2009 for my ADHD so Plaintiff did not think she had to disclose it again on L-3’s medication sheet. Ptf. App. 135. Plaintiff was not fired before for use of Adderall or even told she could not take it. On April 24, 2015, L-3 suspended Plaintiff, and Plaintiff was subsequently terminated by L-3 effective May 5, 2015 following the drug screening on April 24, 2015. Prior to Plaintiff’s termination Plaintiff had disclosed her Adderall and Hydrocodone prescriptions at issue to L-3. In 2009 Plaintiff’s previous drug screening showed the presence of Adderall amphetamines but Plaintiff was not terminated or disciplined at that time. Ptf. App. 135. Upon being suspended on April 24, 2015 Plaintiff provided L-3 with evidence of her most recent prescriptions for Adderall and Hydrocodone prior to her termination. On May 5, Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 29 of 50 PageID 316 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 30 of 50 2015 Plaintiff was fired without justification after 16 years of dedicated employment at L-3 after a drug test revealed substances in Plaintiff’s prescribed medications and testing positive for amphetamine (Adderall). Ptf. App. 135. Plaintiff has a history of such disclosed ADHD disability at L-3 as Plaintiff was allowed to return to work for Defendant in 2009 after testing positive for the same drug Adderall during a random drug test on July 23, 2009. Ptf. App. 135- 136. In September 2012, the EEOC reached a consent decree with auto parts manufacturer Dura Automotive Systems requiring the employer to pay $750,000 to former and current employers for violations of the ADA relating to allegations that the employer impermissibly required drug testing for all employees, including testing for prescription drug use and made improper employment decisions based on the results. The consent decree also required that the employer cease making medical inquiries and conducting medical examination that are prohibited by the ADA, stop drug-testing employees when those tests are not job-related or are not required as a business necessity, desist from disclosing confidential information obtained through medical inquiries; and implement a compliant lawful drug-testing policy. For those employees who tested positive for prescription drugs for which they had a lawful prescription, Dura Automotive Systems had required that those employees disclose the underlying medical conditions relating to the prescription drugs. In addition, the employer required employees to stop taking the medication, irrespective of proof that the prescription medication affected job performance. Employees were suspended until they stopped taking the medication or were fired if they were unable to work without taking the medication. Lastly, the EEOC found that the employer disclosed confidential medical information through the testing process by disclosing to the workforce the identity of the employees who tested positive. Boiling Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 30 of 50 PageID 317 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 31 of 50 this settlement and consent decree down to its basics, the EEOC found that the employer did not attempt to tailor its drug testing policy to the actual job requirements nor, when it suspended or fired employees who tested positive for certain prescription drugs, attempt to determine if those medications actually affected the individual’s job performance. This overbroad application of a drug testing policy violates the ADA as did the disclosure of confidential medical information to fellow employees. According to EEOC v. Dura Automotive Systems, Inc., Civil Action No. 1:09-cv-00059 (M.D. Tenn.), filed in the U.S. District Court for the Middle District of Tennessee, Dura Automotive Systems, Inc. tested all of its Lawrenceburg, Tenn., plant employees in May 2007 for 12 substances, including certain legally prescribed drugs, in violation of the ADA. Five of the drugs tested for were illegal controlled substances, the EEOC said, but the other seven were legal medications that were lawfully prescribed for the individuals taking them. The EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications, and made it a condition of employment that the employees cease taking their prescription medications, without any evidence that the medications were affecting the employees' job performances. According to the EEOC, Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications. Moreover, Dura conducted the drug tests in such a manner as to disclose to its entire workforce the identities of those who tested positive. All this alleged conduct violates various provisions of the ADA, the EEOC charged. The EEOC filed suit after first attempting to reach a voluntary settlement through its conciliation Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 31 of 50 PageID 318 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 32 of 50 process. Besides the monetary settlement of $750,000, the four-year consent decree settling the lawsuit includes terms that: • enjoin Dura from making medical inquiries and conducting medical examinations that are prohibited by the ADA; • prohibit Dura from conducting employee drug screens that are not job-related or consistent with business necessity; • enjoin Dura from illegally disclosing confidential information obtained through medical inquires of employees; • require that Dura create a written drug-testing policy that complies with federal law; • mandate that Dura provide training for its human resources managers on the ADA; and • require Dura's CEO to issue a statement confirming the company's expectation that all employees will comply with the ADA and that Dura will not retaliate against any employee making a complaint under the ADA or about Dura's testing policy. "This agency will continue to enforce the ADA's prohibitions against illegal medical inquiries and examinations of employees where they are not job-related and consistent with business necessity," said Faye A. Williams, the EEOC's regional attorney for the Memphis District. "The EEOC's Guidance on Disability-Related Inquiries and Medical Examination of Employees provides that asking an employee whether he or she is currently taking any prescription medications may be considered a medical inquiry." The U.S. Equal Employment Opportunity Commission (EEOC) also recently filed suit against a car dealership alleging that its drug testing policy did not contain exceptions for qualified persons with disabilities. The lawsuit, EEOC v. Bell Leasing, Inc., Civil Action No. 2:16-cv-02848, was filed on August 25, 2016 in the U.S. District Court for the District of Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 32 of 50 PageID 319 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 33 of 50 Arizona. The EEOC alleged that the employer made a job offer to an applicant contingent upon a successful drug test. When the applicant tested positive for a prohibited substance, the employer rescinded the offer. The EEOC alleges that the positive test was the result of the applicant’s use of a prescription drug in accordance with her doctor’s orders, but the employer refused to consider her medical evidence. The EEOC’s complaint seeks monetary and punitive damages, injunctive relief, and Americans with Disabilities Act (ADA) training. In the EEOC’s press release it emphasized that even when employers are legally permitted to conduct drug tests, they must accommodate qualified persons with disabilities. If the failed test resulted from the legal use of a prescription drug and the drug will not prevent the employee from performing the essential functions of the job, the employer will likely need to accommodate the employee’s drug use but L-3 failed to do so or discuss in this case. C. L-3 Discriminated Against Plaintiff on Basis of Disability The ADA was amended, effective January 1, 2009, to broaden the definitions of disability to make it easier for individuals to be covered under the ADA / ADA Amendments Act of 2008 (ADAAA). A disability is still defined as (1) a physical or mental impairment that substantially limits one or more major life activities (actual disability); (2) a record of a substantially limiting impairment; or (3) being regarded as having a disability. The limitations from the impairment no longer have to be severe or significant for the impairment to be considered substantially limiting. An impairment that is “episodic” is a disability if it would be substantially limiting when active. Further, an individual can also meet the definition of disability if an employment action was taken because of an actual or perceived impairment. “Regarded as” coverage under the ADAAA no longer requires that an impairment be substantially limiting, or that the employer perceives the impairment to be substantially limiting. In Warshaw v. Concentra Health Services, 719 F. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 33 of 50 PageID 320 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 34 of 50 Supp. 2d 484 (E.D. Pa. 2010), Plaintiff, an individual who has attention deficit hyperactivity disorder (ADHD), was subjected to a pre-employment drug test. The test resulted in a false positive for methamphetamine, due to Plaintiff’s legal use of the prescription drug Desoxyn. Plaintiff worked for three days and then was terminated for disputed reasons. The court found there was a triable issue of fact as to whether employer regarded Plaintiff as a person with a disability because of his ADHD diagnosis or due to the erroneous perception that he engaged in illegal drug use. Plaintiff had qualifying disabilities under the ADA, and in any event L-3 regarded Plaintiff as disabled due to their alleged perception that she was impaired and unable to perform her job even though she had being doing it for 16 years with little issue. During Plaintiff’s employment with L-3 she suffered from the disclosed disabilities of Attention Deficit Hyperactivity Disorder (“ADHD”) and chronic back pain from a degenerative back condition with bulging discs at L4-5, L5-S1, and she took legally prescribed medication including Adderall for ADHD and Hydrocodone for back pain. Ptf. App. 12-13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. Plaintiff disclosed her ADHD and back pain to L-3’s nurses and medical personnel as well as to her much younger supervisor Jaret Lytle (approx. age 31) and supervisor Regina Chandler during her employment and prior to her termination. Ptf. App. 12-13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. During Plaintiff’s employment with L-3 her ADHD substantially limited her in the major life activities of thinking, learning and concentrating. Ptf. App. p. 131; Def. App. 126-130. Plaintiff disclosed her ADHD impairments with needs for accommodation to her supervisor Jaret Lytle and requested and received accommodations from L-3 to be allowed to print screens and Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 34 of 50 PageID 321 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 35 of 50 take handwritten notes to facilitate her learning while in training on her job. Ptf. App. 17 (Ptf. Depo., p. 87, 23-25; p. 88, ll. 1-16); Ptf. App. 131. During her employment with L-3 Plaintiff also suffered from chronic back pain from a degenerative back condition with bulging discs at L4-5, L5-S1 substantially limiting her in walking, standing, bending and stooping. Ptf. App. 14 (Ptf. Depo., p. 76, ll. 10-22); Ptf. App. 131. Plaintiff informed her supervisors Jaret Lytle and Regina Chandler of her degenerative back condition with needs for accommodation, and a special ergonomic desk chair was ordered for her by L-3 at her request given her back condition and disclosed physical therapy appointments for her back but Plaintiff was told her physical therapy appointments were too repetitive and she would be charged PTO and not be allowed to make up her time. Ptf. App. 12- 13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. Plaintiff has a history and record of her disabilities on file with L-3 as her medication records with L-3 show the prescribed medications she was taking for said disabilities. In 2015 Plaintiff never took any illegal drugs while employed by L-3. Ptf. App. 131-132. In 2015 (the year Plaintiff was suspended and terminated by L-3) Plaintiff never took any illegal drugs while employed by L-3. In 2015 Plaintiff only took prescribed medications as prescribed by her health care providers. Ptf. App. 131-132. D. Plaintiff Has Established a Prima Facie Case of Disability Discrimination In order to establish a prima facie case of disability discrimination, the Plaintiff must show: (1) she has a disability or is regarded as having same; (2) she was qualified for the position; and (3) she was subjected to an adverse employment action on account of her disability. EEOC v. LHC Group, Inc., No. 13-60703 (5th Cir. 12/11/2014); Zenor v. El Paso Healthcare Sys. Ltd., 176 F.3d 847, 853 (5th Cir. 1999). Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 35 of 50 PageID 322 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 36 of 50 Plaintiff suffers from the disabilities of ADHD and chronic back pain but despite said disabilities was qualified for her position as her three most recent annual Fully Meets performance reviews show. In 2015 Plaintiff had very good attendance at work, and she was performing her job duties with no counselings or warnings from L-3 regarding her performance or job attendance in 2015. Ptf. App. 132. Other than some attendance issues Plaintiff had in prior years her work record at L-3 over her 16 years of employment there was very good (Plaintiff’s last three most recent annual performance reviews were all Fully Meets Standards). Ptf. App. 106-121 (copies of last three performance reviews produced by L-3); Ptf. App. 132. Plaintiff was fired by L-3 on May 5, 2015 based on her real or perceived disabilities with disclosed prescribed medications for same and replaced by in her job duties by Carrie Ingram, an employee about ten years younger with no apparent disabilities. Ptf. App. p. 95 (Defendant’s Answer to Plaintiff’s Interrogatory No. 6); Ptf. App. 12 (Ptf. Depo., p. 66, ll. 4-7). E. L-3’s Articulated Reasons for Plaintiff’s Termination Are Pretextual and Unworthy of Credence or Belief Plaintiff’s evidence shows that Defendant L-3 had no legitimate nondiscriminatory reason to terminate Plaintiff. If the complaining party establishes a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate nondiscriminatory or nonretaliatory reason for the termination. Bocalbos v. Nat’l Western Life Ins. Co., 162 F.3d 379, 384 (5th Cir. 1998). If the employer articulates such a reason, the burden shifts back to the plaintiff, who must show by a preponderance of the evidence that the employer’s reason presented by the defendant is a pretext for discrimination or retaliation. Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006) (cert. denied) (citing Hunt v. Rapides Healthcare Sys., 277 F.3d 757, 768 (5th Cir. 2001)). As shown above, Plaintiff has made a prima facie showing of discrimination, thus the Defendant must respond by producing a legitimate, non-discriminatory rationale for the Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 36 of 50 PageID 323 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 37 of 50 adverse employment action regarding the plaintiff. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). See also Arban v. West Publishing Corp., 345 F.3d 390 (6th Cir. 2003) (employee had numerous performance deficiencies; on the day he commenced FMLA leave those deficiencies were summarized in a memo to management, with termination being a possible option, but not a decided one; employee was terminated and not reinstated; the Sixth Circuit found that there was sufficient evidence for the jury to conclude that employee Arban was terminated for taking FMLA leave). Defendant has failed to establish a legitimate nondiscriminatory reason for firing Plaintiff as she reported timely for work and was doing her job when she was drug tested on April 24, 2015, she had been given prior instructions from the L-3 nurse that it was ok to take Hydrocodone for her back pain prior to coming to work given the sedentary desk job duties Plaintiff performed, and Plaintiff had disclosed her prescribed medications prior to termination with no reasonable accommodation offered by Defendant to reduce any alleged “direct threat” presented by Plaintiff. A plaintiff can show that the defendant’s purportedly legitimate nondiscriminatory reason for the adverse employment action is really a pretext for discrimination by showing that the reason is false. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993). In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000), the Supreme Court rejected the Fifth Circuit’s conclusion that Mr. Reeves had not produced sufficient evidence that his age motivated Sanderson Plumbing’s employment decision because the Fifth Circuit essentially ignored the fact that Mr. Reeves had presented a prima facie case of discrimination and shown that the defendant’s explanation was false. It is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation. 530 U.S. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 37 of 50 PageID 324 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 38 of 50 at 146-49, 120 S.Ct. at 2107-2109. When an employer offers false or inconsistent post-hoc explanations for its employment decisions, it is probative of pretext masking the true discriminatory intent. Dennis v. Columbia Colleton Medical Center, 290 F.3d 639, 647 (4th Cir. 2002). Thus, when a company, at different times, gives different and inconsistent explanations, a jury may infer that the articulated reasons are pretextual. See, e.g., Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 237 (5th Cir. 2016); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000); Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1167 (6th Cir. 1996); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994); Perfetti v. First Nat’l Bank, 950 F.2d 449, 456 (7th Cir. 1991). Employees may also show that an employment decision was motivated by an illegal reason when the employer attempts to justify the decision with documentation and reasons “after the fact.” For example, an employer cannot justify its employment action based on reasons uncovered after the decision was made or on conduct that took place after the decision was made. Burton v. Freecsale Semiconductor, Inc., 798 F.3d 222, 232 (5th Cir. 2015). Moreover, evidence of an employer’s attempt to create a paper trail after a decision has already been made may support an inference of pretext. Id. at 236; Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 477 (5th Cir. 2015). An employer’s failure to follow its own policies or normal practices may be evidence of pretext. For example, when an employer has a disciplinary system that involves warnings, failure to follow that system may give rise to inferences of pretext. Goudeau, 793 F.3d at 477. Even if a progressive discipline policy is not mandatory an inference of pretext may still be raised by the failure to follow a policy that specifically stated it should be followed in most circumstances. Machinchick v. PB Power, Inc., 398 F.3d 345, 354 n. 29 (5th Cir. 2005). Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 38 of 50 PageID 325 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 39 of 50 There is ample evidence of pretext in this case as Defendant has given inconsistent and incredible reasons in this case for Plaintiff’s termination as shown by the fact that in its motion Defendant’s counsel argues three reasons for termination of employment when none of Defendant’s supporting affidavits state more than two reasons for termination and there was no affidavit was given by the ultimate decisionmaker on Plaintiff’s termination with the lone unverified HR note only stating one reason for termination. For example, Jaret Chandler and Regina Chandler, Plaintiff’s supervisors, both state that Human Resources made the decision to terminate Plaintiff’s employment but also states it was due to Plaintiff allegedly being impaired due to taking narcotic pain medication instructed not to take. Def. App. 20, 142. However, no one from L-3 Human Resources has given an affidavit on the reasons for Plaintiff’s termination so Defendant has not set forth any competent summary judgment evidence via affidavit or declaration from the decisionmaker on the decision to terminate Plaintiff’s employment and the reasons therefor. The only unverified note offered by Defendant was a memorandum of record (Def. App. 153) by Dwight Wilkins, L-3 Human Resources who states that the only reason for Plaintiff’s termination was being at work under the influence of a controlled substance (albeit prescribed medication) and being incapacitated and incapable of performing her job duties on April 24, 2015. However, Mr. Wilkins did not give any affidavit or declaration in support of Defendant’s motion and neither did Rachel Lancaster, the nurse whose alleged instructions (belied by her own handwritten notes) Defendant relies upon in this case. Under the ADA, “discrimination need not be the sole reason for the adverse employment decision . . . [so long as it] actually play[s] a role in the employer’s decision making process and ha[s] a determinative influence on the outcome.” See Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008). For this reason, an employee who fails to demonstrate pretext can still survive Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 39 of 50 PageID 326 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 40 of 50 summary judgment by showing that an employment decision was “based on a mixture of legitimate and illegitimate motives . . . [and that] the illegitimate motive was a motivating factor in the decision.” Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005). F. Summary Judgment Should Be Denied on Plaintiff’s Failure to Accommodate Claims Under the ADA and TCHRA (Texas Labor Code) Because Plaintiff’s Disability Limitations Were Known to Defendant Plaintiff’s disability limitations were well known to Defendant for several years. Mrs. Barnard suffers from ADHD, a serious health condition qualifying, regarded or documented as a disability under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the ADA Amendments of 2008 and § 21.051 of the Texas Labor Code. Under the ADA, an employer must attempt to reasonably accommodate a known disability. 42 U.S.C. § 12112(b)(5)(A). During Plaintiff’s employment with L-3 she suffered from the disclosed disabilities of Attention Deficit Hyperactivity Disorder (“ADHD”) and chronic back pain from a degenerative back condition with bulging discs at L4-5, L5-S1, and she took legally prescribed medication including Adderall for ADHD and Hydrocodone for back pain. Ptf. App. 12-13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. Plaintiff disclosed her ADHD and back pain to L-3’s nurses and medical personnel as well as to her much younger supervisor Jaret Lytle (approx. age 31) and supervisor Regina Chandler during her employment and prior to her termination. Ptf. App. 12-13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. During Plaintiff’s employment with L-3 her ADHD substantially limited her in the major life activities of thinking, learning and concentrating. Ptf. App. p. 131; Def. App. 126-130. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 40 of 50 PageID 327 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 41 of 50 130. Plaintiff disclosed her ADHD impairments with needs for accommodation to her supervisor Jaret Lytle and requested and received accommodations from L-3 to be allowed to print screens and take handwritten notes to facilitate her learning while in training on her job. Ptf. App. 17 (Ptf. Depo., p. 87, 23-25; p. 88, ll. 1-16); Ptf. App. 131. During her employment with L-3 Plaintiff also suffered from chronic back pain from a degenerative back condition with bulging discs at L4-5, L5-S1 substantially limiting her in walking, standing, bending and stooping. Ptf. App. 14 (Ptf. Depo., p. 76, ll. 10-22); Ptf. App. 131. Plaintiff informed her supervisors Jaret Lytle and Regina Chandler of her degenerative back condition with needs for accommodation, and a special ergonomic desk chair was ordered for her by L-3 at her request given her back condition and disclosed physical therapy appointments for her back but Plaintiff was told her physical therapy appointments were too repetitive and she would be charged PTO and not be allowed to make up her time. Ptf. App. 12- 13 (Ptf. Depo., p. 66, ll. 12-25, p. 67, ll. 1-25, p. 68, ll. 1-25, p. 69, ll. 1-2); Ptf. App. 131. Plaintiff has a history and record of her disabilities on file with L-3 as her medication records with L-3 show the prescribed medications she was taking for said disabilities. In 2015 Plaintiff never took any illegal drugs while employed by L-3. Ptf. App. 131-132. In 2015 (the year Plaintiff was suspended and terminated by L-3) Plaintiff never took any illegal drugs while employed by L-3. In 2015 Plaintiff only took prescribed medications as prescribed by her health care providers. Ptf. App. p. (Ptf. Depo., p.); Ptf. App. 131-132. In 2009 Plaintiff was prescribed the amphetamine Adderrall by her doctor for her medically diagnosed ADHD with learning disability. Ptf. App. 17 (Ptf. Depo., p. 85, ll. 10-18); Ptf. App. 132, 144; Def. App. 126-130. In July 2009 Plaintiff was given a random drug Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 41 of 50 PageID 328 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 42 of 50 screening by L-3 at which time Plaintiff disclosed that she was taking prescribed Adderall for her ADHD, and Plaintiff considered that to be a request that she be allowed to take Adderall as prescribed to treat her chronic ADHD. Ptf. App. 132. When Plaintiff was asked if anything would show up on the drug test she responded that Adderall would as Plaintiff took that for her diagnosed ADHD. Ptf. App. 132. Plaintiff took the drug test, and it was in fact positive for amphetamines, an ingredient in the Adderall Plaintiff was legally prescribed by her doctor. When asked by L-3’s nurse why Plaintiff took Adderall Plaintiff responded that it was prescribed by her doctor because of her ADHD as Plaintiff had a learning disability. Ptf. App. 132. Plaintiff was requested by L-3’s nurse to go to her pharmacy to get a recent record of her prescriptions for Adderall, and she did. Ptf. App. 132. G. Summary Judgment should be Denied with Regard to a Failure to Accommodate Plaintiff’s Attention Deficit Hyperactivity Disorder (“ADHD”) because Plaintiff did Request Accommodations for her ADHD Plaintiff requested a reasonable accommodation to take prescribed medication, e.g., Adderall for her diagnosed and disclosed ADHD. Section 2.06 (Ptf. App. 124) of L-3’s Substance Abuse Policy and Control Program (Corporate Policy No. 305) (Ptf. App. 123-128) states in pertinent part with regard to a drug screen: “If the results of this screen show that the employee has misused a prescription medication for which the employee has a prescription, then the employee will be advised to contact his or her physician to rectify the situation.” Ptf. App. 124. Section 3.3D of said policy provides that the employee tested be given full opportunity to explain the test results (see Ptf. App. 127). Plaintiff was not reasonably accommodated and afforded the opportunity to explain the test results or have her physician rectify the situation Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 42 of 50 PageID 329 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 43 of 50 prior to her May 5, 2015 termination and after the April 24, 2015 drug screen as provided by L-3 policy. Ptf. App. 124. Defendant’s supervisors and nurse personnel that were well aware of Plaintiff’s disabilities and use of prescribed medication to treat same yet Defendant proceeded to terminate Plaintiff’s employment without followup or engagement in the ADA interactive process to see if she could be reasonably accommodated to perform her job given the disclosure of Plaintiff’s ADHD and chronic back pain disabilities and prescription medications needed to treat same. Defendant could have reasonably accommodated Plaintiff and easily offered Plaintiff a leave of absence, referral to the company employee assistance program or even up to 12 weeks of job protected FMLA leave or other short-term leave given her long tenure to receive time off for any suggested assessment, treatment and recovery to exhaust all avenues short of termination. Plaintiff had not been written up for performance other than attendance issues in prior years, and in fact her most recent annual reviews were all “Fully Meets Standards.” Title I of the Americans with Disabilities Act (the “ADA”) requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal opportunities.” 42 U.S.C. §12101, et seq., and EEOC Enforcement Guidance on Reasonable Accommodations and Undue Hardship Under the Americans with Disabilities Act at at www.eeoc.gov/policy/docs/accommodation. “[W]hen an employer’s unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA.” Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999). Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 43 of 50 PageID 330 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 44 of 50 In Taylor v. Phoenixville School District, 184 F.3d 296 (3rd Cir. 1999), the court found that the employer did not properly engage in the interactive process. The court stated that “where there is a genuine dispute about whether the employer acted in good faith” in the process, “summary judgment will typically be precluded.” Likewise, in Rehling v. City of Chicago, 207 F.3d 1009 (7th Cir. 2000), the court stated that “[a]lthough the interactive process is not an end itself,” summary judgment may be precluded “where there was an issue as to whether the employer engaged in an appropriate interactive process or caused such a process to breakdown.” In Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), vacated on other grounds, 535 U.S. 391, 122 S. Ct. 1516 (2002), the court also expressly noted that “summary judgment is available only where there is no genuine dispute that the employer has engaged in the interactive process in good faith.” Similarly, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), the court stated that “summary judgment would be premature if there is a genuine dispute” as to whether the employer “participated in good faith” in the interactive process. Likewise, in Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir. 1999), the court stated that summary judgment is typically precluded where the employer did not engage in the interactive process. In Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996), the employer failed to engage in the interactive process after a janitor notified it that he needed to work at a "less stressful" school because of his illness (a mental disability). The court denied the employer's motion for summary judgment specifically because the employer had not engaged in the interactive process. The court noted that the employer should have communicated with the employee in order to determine an appropriate accommodation. The court stated that, at a minimum, the employer should have "simply . . inquire[d] of Bultemeyer or his psychiatrist about what he needed to be able to work." Importantly, in Cravens v. Blue Cross and Blue Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 44 of 50 PageID 331 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 45 of 50 Shield of Kansas City, 214 F.3d 1011 (8th Cir. 2000), the court noted that “although there is no per se liability under the ADA if an employer fails to engage in an interactive process,” for summary judgment purposes, “the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith.” H. Summary Judgment should be Denied with regard to Plaintiff’s chronic back issues and pain because Plaintiff requested an accommodation to take legally prescribed pain medication for her back Plaintiff requested a reasonable accommodation to take prescribed medication, e.g., Hydrocodone for her diagnosed and disclosed chronic back pain from a degenerative back condition with bulging discs at L4-5, L5-S1. See also contents of sections F. and G. above and incorporated by reference herein. I. Summary Judgment should be denied on Plaintiff’s age discrimination claims under the Age Discrimination in Employment Act (“ADEA”) and the TCHRA because there is evidence that L-3 discriminated against Plaintiff on the basis of her age, Plaintiff has established a prima facie case for age discrimination, and L-3’s articulated reasons for Plaintiff’s termination are pretextual. The Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. prohibits an employer from discharging any individual or otherwise discriminating against an individual with respect to her compensation, terms, conditions, or privileges of employment because of such individual’s age if age 40 or older. 29 U.S.C. § 623(a). The Fifth Circuit employs a similar McDonnell Douglas burden shifting framework when analyzing ADEA discrimination claims as they employ for analyzing Title VII sex discrimination claims. Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004); Sanstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). To establish a prima facie case of age discrimination, a plaintiff must show: (1) the plaintiff was discharged or subject to an adverse employment action; (2) she was qualified for Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 45 of 50 PageID 332 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 46 of 50 her position; (3) she was within the protected class at the time of her discharge; and (4) she was either (i) replaced by an individual outside of the plaintiff’s protected class, (ii) replaced by someone younger (not necessarily under 40) or (iii) otherwise discharged because of her age. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993); Fields v. J.C. Penney Company, Inc., 968 F.2d 533, 536 (5th Cir. 1992); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). Plaintiff has set forth sufficient facts supporting her age discrimination claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. and Texas Labor Code. Plaintiff has set forth facts showing that at the time of her termination of employment she was 49 years of age and thus a member of a protected class as she was age 40 or older, she was qualified for her position with a long history of Fully Meets expectations annual performance reviews but was subject to adverse actions of suspension and termination, and she was replaced in her job duties by a much younger person approximately 10 years younger than her. See also Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988) (setting forth prima facie elements of age discrimination). When Plaintiff was fired she was well qualified for her position as her most recent three annual performance reviews produced by L-3 will show (all of them were Fully Meets Standards). Ptf. App. 106-121 (copies of last three performance reviews produced by L-3), 132- 133, 135. In April 2015 Plaintiff was told by Regina Chandler, her second level supervisor, in a staff meeting that the Procurement Department would be downsizing but the Material Master Group, which was the group Plaintiff was in, would be unaffected. However, Plaintiff had been assigned duties as a trainer for a much younger inter-department transfer. This was only a week or so before Plaintiff was selected for a drug test. Ptf. App. 133-134. Plaintiff was one of the Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 46 of 50 PageID 333 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 47 of 50 older more tenured employees in her department for L-3, and Plaintiff had just finished training a much younger employee Heather Dixon (then ~38 years old) who had no apparent disabilities. Ptf. App. 6-7 (Ptf. Depo. p. 21, ll. 22-25, p. 22, ll. 1-18, p. 24, ll. 4-25, p. 25, ll. 1-16); Ptf. App. 136. Plaintiff was not offered any warning in lieu of termination or offered any counseling or corrective action or other alternatives, and Plaintiff was not advised by anyone at L-3 to contact her physician to rectify the situation per section 2.6 (see Ptf. App. 123, Def. App. 222) of the L-3 Substance Abuse Policy and Control Program produced by L-3 in discovery. Plaintiff had always been able to perform the essential functions of her job for L-3 with the assistance and use of her prescribed medications. Ptf. App. 136. After Plaintiff’s termination Carrie Ingram (then ~38 years old and about 10 years younger than me), a transfer from the Purchasing Department, assumed Plaintiff’s former job duties and responsibilities according to information provided by L-3 in interrogatory answers in discovery. Ptf. App. p. 95 (Defendant’s Answer to Plaintiff’s Interrogatory No. 6). Ms. Ingram is now about 40 years old and nearly 10 years younger than Plaintiff. Id.; Ptf. App. 136. Plaintiff was not given the same projects and opportunities to train in her work group like her much younger colleague Heather Dixon. Ptf. App. 7 (Ptf. Depo., p. 28, ll. 10-23); Ptf. App. 136. In fact, Plaintiff helped train Ms. Dixon to succeed to her position and trained Plaintiff Ms. Dixon at the request of her second level Regina Chandler who said in April 2015 there would be a layoff or reduction coming in her department of approximately 40 employees headed by Marc Scott. Ptf. App. 6 (Ptf. Depo., p. 24 , ll. 4-19); Ptf. App. 136. J. Summary judgment should be denied on all claims because Plaintiff can demonstrate competent evidence of recoverable damages Plaintiff has many elements recoverable damages from L-3’s termination of her employment and failure to accommodate her disabilities including lost wages, backpay, Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 47 of 50 PageID 334 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 48 of 50 compensatory damages for pain and suffering, mental anguish and loss of credit reputation. Plaintiff was emotionally and financially devastated by her firing from L-3 as Plaintiff loved her job and was a good performer even helping to train others. Ptf. App. 138. Plaintiff has suffered many sleepless nights, panic attacks, anxiousness, depression, sweating and emotional distress from losing her 16-year job with L-3. Plaintiff lost her health insurance and could no longer afford the same level of medical care and prescriptions for her disabilities. Ptf. App. 138. Plaintiff did not receive any severance pay after 16 years of dedicated productive service with L- 3. Plaintiff’s Nissan Frontier automobile was repossessed because she was no longer able to pay my monthly car note installments due to the loss of her L-3 job. As a result of the loss of her L-3 job and compensation with L-3 Plaintiff had to file for Chapter 13 bankruptcy in June 2015 because she could no longer afford to pay her bills. Ptf. App. 4 (Ptf. Depo. p. 14, ll. 1-14); Ptf. App. 138. Plaintiff has disclosed her claims and this lawsuit against L-3 to the bankruptcy court and trustee through her bankruptcy attorney. Ptf. App. 138. Despite L-3’s opposition to Plaintiff’s unemployment benefit claim necessitating her appeal the Texas Workforce Commission found after review of the evidence that there was no misconduct on Plaintiff’s part as alleged to disqualify her from receiving unemployment benefits. Despite diligent continuous efforts to find another job it took Plaintiff nearly a year to find another job and at a lesser rate of pay than L-3. Ptf. App. 139. K. Summary judgment should be denied as to Plaintiff’s punitive damages and mental anguish and physical ailment damages under the ADA because there is evidence that L-3 did act with reckless disregard or malice and there is evidence of physical or mental impairment caused by L-3 to Plaintiff. As discussed above Defendant’s violation of its own policies as well as the overbroad application of said policies beyond what the ADA permits along with Defendant’s pretextual reasons for termination and failure to engage in the ADA interactive process to reasonably Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 48 of 50 PageID 335 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 49 of 50 accommodate Plaintiff’s disabilities and use of prescribed medications for same will support a finding of malice or reckless disregard to support an award of punitive damages. As referenced in section J above there is ample evidence that Plaintiff suffered compensatory damages for pain and suffering, mental anguish, loss of enjoyment of life and physical injury. L. Summary judgment should be denied as to Plaintiff’s claims for liquidated damages under the ADEA because there is evidence that L-3 willfully violated the ADEA. The issue of “willfulness” is necessarily one of intent for determination by the factfinder after hearing the testimony of witnesses and assessing their credibility and motive. Defendant terminated Plaintiff’s employment and replaced her in her job duties with an employee about ten years younger. Plaintiff was terminated with input of her supervisor Jaret Lytle who is about 20 years younger than Plaintiff. M. Summary judgment should be denied as to Plaintiff’s punitive damages under the TCHRA because there is evidence that L-3 acted with malice or reckless disregard. As referenced in Sections II and III. A. above Defendant’s violation of its own policies as well as the overbroad application of said policies beyond what the ADA permits along with Defendant’s pretextual reasons for termination and failure to engage in the ADA interactive process to reasonably accommodate Plaintiff’s disabilities and use of prescribed medications for same will support a finding of malice or reckless disregard to support an award of punitive damages. As referenced in section J above there is ample evidence that Plaintiff suffered compensatory damages for pain and suffering, mental anguish, loss of enjoyment of life and physical injury. N. Summary judgment should be denied regarding Plaintiff’s compensatory damages for pain and suffering, mental anguish, loss of enjoyment of life, and physical injury because there is competent evidence to support injury on each of these alleged damages. Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 49 of 50 PageID 336 PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Page 50 of 50 As referenced in sections II. and III. J above and incorporated by reference herein there is ample evidence that Plaintiff suffered compensatory damages for pain and suffering, mental anguish, loss of enjoyment of life and physical injury. PRAYER WHEREFORE, Plaintiff respectfully prays that Defendant’s Motion for Summary Judgment be denied in all respects, and for such other and further relief to which she may show herself to be justly entitled. Respectfully submitted, /s/ Dan A. Atkerson Dan A. Atkerson Texas Bar No. 01400090 1025 Arches Park Drive Allen, Texas 75013 Ph. (214) 383-3606 Fax (214) 383-3513 E-mail: atklaw84@aol.com ATTORNEY FOR PLAINTIFF WENDY BARNARD CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Plaintiff’s Brief in Support of Response in Opposition to Defendant’s Motion for Summary Judgment is being forwarded to all counsel of record via the ECF system and in accordance with Fed. R. Civ. P. 5 on April 14, 2017. /s/ Dan A. Atkerson Dan A. Atkerson Case 3:16-cv-00282-D Document 32 Filed 04/14/17 Page 50 of 50 PageID 337