Equal Employment Opportunity Commission v. Accentcare Inc

MOTION for Summary Judgment

N.D. Tex.September 13, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION EQUAL EMPLOYMENT OPPORTUNITY § COMMISSION, § § PLAINTIFF, § § CIVIL ACTION NO. 3:15-CV-03157-D VS. § § ACCENTCARE, INC., § § DEFENDANT. § DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Fed. R. Civ. P. 56, Defendant respectfully moves for summary judgment. The motion is based on the following grounds. A. REGARDING PLAINTIFF’S ADA FAILURE-TO-ACCOMMODATE CLAIM: First, adequate time for discovery has passed and the EEOC has no admis- sible summary judgment evidence to establish that an accommodation was necessary in order to permit Alisia Beasley to perform the essential functions of her job. Second, adequate time for discovery has passed and the EEOC has no ad- missible summary judgment evidence to support the first element of its prima facie case, i.e., that Alisia Beasley was a qualified individual with a disability. Third, as a matter of law, the EEOC’s Complaint conclusively negates the first element of its prima facie case, i.e., that Alisia Beasley was a qualified individual with a disability. Fourth, adequate time for discovery has passed and the EEOC has no ad- missible summary judgment evidence to support the second element of its 1 Case 3:15-cv-03157-D Document 23 Filed 09/13/16 Page 1 of 4 PageID 111 prima facie case, i.e., that as a result of her bipolar and ADHD conditions Alisia Beasley suffered from any actual consequential limitations of which AccentCare was aware. Fifth, adequate time for discovery has passed and the EEOC has no admis- sible summary judgment evidence to support the third element of its prima facie case, i.e., that AccentCare failed to provide a reasonable accommodation to the known limitations of any disability suffered by Alisia Beasley. Sixth, as a matter of law, indefinite leave is not a reasonable accommoda- tion. Seventh, adequate time for discovery has passed and the EEOC has no admissible summary judgment evidence to show that AccentCare’s failure to grant Alisia Beasley additional leave through July12, 2013, caused Beasley any harm. B. REGARDING PLAINTIFF’S DISCRIMINATORY DISCHARGE CLAIM: First, adequate time for discovery has passed and the EEOC has no admis- sible summary judgment evidence to support the second element of its prima facie case, i.e., that Alisia Beasley was a qualified individual with a disability. Second, adequate time for discovery has passed and the EEOC has no ad- missible summary judgment evidence to support the fourth element of its prima facie case, i.e., that Alisia Beasley was disparately treated regarding her request for leave or her discharge. Third, as a matter of law, the EEOC’s Complaint conclusively negates the second element of its prima facie case, i.e., that Alisia Beasley was a qualified individual with a disability. 2 Case 3:15-cv-03157-D Document 23 Filed 09/13/16 Page 2 of 4 PageID 112 Fourth, adequate time for discovery has passed and the EEOC has no ad- missible summary judgment evidence to support the fourth element of its prima facie case, i.e., that Alisia Beasley was discharged because of disability. Fifth, as a matter of law, the EEOC’s admission in discovery that Alisia Beasley was not disparately treated negates the fourth element of the EEOC’s prima facie case. Sixth, even assuming, arguendo, that the EEOC can establish a prima facie case of discriminatory discharge because of disability, as a matter of law (a) AccentCare has articulated legitimate non-discriminatory reasons for Beasley’s discharge; and (b) adequate time for discovery has passed and the EEOC has no admissible summary judgment evidence sufficient to raise a genuine issue of material fact on the issue of pretext. CONCLUSIONS AND REQUESTED RELIEF For all of the foregoing reasons, Defendant’s Motion for Summary Judgment should be, in all things, GRANTED. Respectfully Submitted, /s/ John L. Ross JOHN L. ROSS Texas State Bar No. 17303020 CHANTEL L. LEE Texas State Bar No. 24081001 THOMPSON, COE, COUSINS & IRONS, L.L.P. 700 North Pearl Street, Suite 2500 Dallas, Texas 75201 Telephone: (214) 871-8206 (Ross) Telephone: (214) 871-8242 (Lee) Fax: (214) 871-8209 Email: jross@thompsoncoe.com Email: clee@thompsoncoe.com ATTORNEYS FOR DEFENDANT 3 Case 3:15-cv-03157-D Document 23 Filed 09/13/16 Page 3 of 4 PageID 113 CERTIFICATE OF SERVICE Pursuant to Fed. R. Civ. P. 5(b)(2)(E) and (b)(3), I certify a true and correct copy of the foregoing document was filed electronically on the 13th day of September 2016. Thereby, through the electronic filing system, a copy of the foregoing document was served on Plaintiff’s counsel of record. /s/ John L. Ross JOHN L. ROSS 4 Case 3:15-cv-03157-D Document 23 Filed 09/13/16 Page 4 of 4 PageID 114 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION EQUAL EMPLOYMENT OPPORTUNITY § COMMISSION, § § PLAINTIFF, § § CIVIL ACTION NO. 3:15-CV-03157-D VS. § § ACCENTCARE, INC., § § DEFENDANT. § APPENDIX IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ JOHN L. ROSS1 Texas State Bar No. 17303020 CHANTEL L. LEE Texas State Bar No. 24081001 THOMPSON, COE, COUSINS & IRONS, L.L.P. 700 North Pearl Street, Suite 2500 Dallas, Texas 75201 Telephone: (214) 871-8206 (Ross) Telephone: (214) 871-8242 (Lee) Fax: (214) 871-8209 Email: jross@thompsoncoe.com Email: clee@thompsoncoe.com ATTORNEYS FOR DEFENDANT 1 Board Certified in Labor & Employment Law and Civil Trial Law by the Texas Board of Legal Specialization. Case 3:15-cv-03157-D Document 23-1 Filed 09/13/16 Page 1 of 8 PageID 115 Respectfully Submitted, /s/ John L. Ross JOHN L. ROSS2 Texas State Bar No. 17303020 CHANTEL L. LEE Texas State Bar No. 24081001 THOMPSON, COE, COUSINS & IRONS, L.L.P. 700 North Pearl Street, Suite 2500 Dallas, Texas 75201 Telephone: (214) 871-8206 (Ross) Telephone: (214) 871-8242 (Lee) Fax: (214) 871-8209 Email: jross@thompsoncoe.com Email: clee@thompsoncoe.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE Pursuant to Fed. R. Civ. P. 5(b)(2)(E) and (b)(3), I certify a true and correct copy of the foregoing document was filed electronically on the 13th day of Sep- tember 2016. Thereby, through the electronic filing system, a copy of the fore- going document was served on Plaintiff’s counsel of record. /s/ John L. Ross JOHN L. ROSS 2 Board Certified in Labor & Employment Law and Civil Trial Law by the Texas Board of Legal Specialization. 1 Case 3:15-cv-03157-D Document 23-1 Filed 09/13/16 Page 2 of 8 PageID 116 TABLE OF CONTENTS AUTHENTICATION LEGEND: The following Exhibits are authenticated as business records by Exhibit 54, the Declaration of M’Liss Kane: 5-18, 21-26, 30-32, and 43 The following Exhibits have also been authenticated by the deposition tes- timony of Alisia Beasley (see Exhibit 53, transcript pages cited in the following parentheticals): Exhibits 2 and 4 (pp. 82-83); Exhibit 8 (p. 32); Exhibit 10 (p. 33); Exhibit 16 (p. 35); Exhibit 17 (p. 33); Exhibit 19 (pp. 46, 77); Exhibit 22 (pp. 24-25, 51, 89); Exhibit 24 (p. 25); Exhibit 25 (p. 25); Exhibit 26 (p. 57); Exhibit 33 (pp. 86-90); Exhibit 34 (p. 91); and Exhibit 120 (p. 59). The following exhibits were produced by the EEOC in discovery: Exhibits 19, 22, 25, 26, 27, 33, 34, 36, 40, 41, 47, 49, 51 and 52. See Exhibit 55, the Declaration of John L. Ross. EXHIBIT DATE DESCRIPTION PAGES 1. 04/08/13 SEALED EXHIBIT Deposition Exhibit 29: Clinical Notes of Dr. Shahzad Allawala APP 1-3 2. 04/08/13 SEALED EXHIBIT Deposition Exhibit 30: Dr. Shah- zad Allawala Rx for 10 day medical leave of absence APP 4 3. 04/15/13 SEALED EXHIBIT Deposition Exhibit 32: Clinical Notes of Dr. Shahzad Allawala APP 5-6 4. 04/15/13 SEALED EXHIBIT Deposition Exhibit 33: Dr. Shah- zad Allawala Rx for medical leave of absence for two more weeks APP 7 5. 04/22/13 Deposition Exhibit 55: Employ- APP 8-10 2 Case 3:15-cv-03157-D Document 23-1 Filed 09/13/16 Page 3 of 8 PageID 117 EXHIBIT DATE DESCRIPTION PAGES ment offer 6. 04/14/13 Deposition Exhibit 60: Beasley’s signed acknowledgement for Em- ployee Handbook APP 11 7. Leave and attendance excerpts from AccentCare Employee Hand- book APP 12-36 8. 06/07/13 Deposition Exhibit 85: Beasley email taking the day off APP 37 9. 06/10/13 Deposition Exhibit 87: Beasley weekly time sheet APP 38 10. 06/20/13 Deposition Exhibit 90: Beasley email, leaving work early APP 39 11. 06/25/13 Deposition Exhibit 92: Beasley weekly time sheet APP 40 12. 06/24/13 Deposition Exhibit 93: 5:43 a.m. Beasley email, taking the day off APP 41 13. 06/24/13 7:43 a.m. Beasley email to Besh, regarding having taken the day off APP 42 14. 06/24/13 3:44 p.m. Beasley email to Besh, regarding having taken the day off APP 43 15. 06/25/13 10:00 a.m. Besh/Beasley meeting appointment APP 44 16. 06/25/13 Deposition Exhibit 98: 4:37 p.m. Beasley apology email APP 45 17. 07/01/13 Deposition Exhibit 100: Besh MFR regarding 06/24/13 counseling of Beasley APP 46-47 18. 07/08/13 Deposition Exhibit 105: 07:33 a.m. Beasley email-won’t be in for work APP 48 3 Case 3:15-cv-03157-D Document 23-1 Filed 09/13/16 Page 4 of 8 PageID 118 EXHIBIT DATE DESCRIPTION PAGES 19. 07/08/13 Deposition Exhibit 109: 2:40 p.m., Clinical Notes of Dr. Shahzad Al- lawala, as redacted by Beasley and as produced by the EEOC APP 49 20. 07/08/13 SEALED EXHIBIT 2:40 p.m., Original, i.e., unredact- ed, Clinical Notes of Dr. Shahzad Allawala APP 50-51 21. 07/08/13 Deposition Exhibit 111: 05:30 p.m. Beasley email-“[My doctor] has me off tomorrow so I can have some tests done. As long as every- thing comes back normal I will be back on Wednesday.” APP 52 22. 07/09/13 Deposition Exhibit 114: 10:04 a.m. Beasley email to Nelson, “I will be out of office for extended amount of time. As of now, my doctor has not provided me with a return to work date.” APP 53 23. 07/09/13 10:36 a.m. Besh email regarding Beasley’s absences APP 54-55 24. 07/09/13 Deposition Exhibit 118: 12:09 p.m. Beasley email to Besh: “My doctor has taken me off work for an extended amount of time, he has not provided me with a return to work date.” APP 56 25. 07/09/13 Deposition Exhibit 117: 12:10 p.m. Beasley email to Nelson APP 57 26. 07/09/13 Deposition Exhibit 119: 1:40 p.m. Nelson email to Beasley, “Are you available to speak with me by phone right now.” APP 58 27. 07/09/13 Deposition Exhibit 120: Transcript APP 59-62 4 Case 3:15-cv-03157-D Document 23-1 Filed 09/13/16 Page 5 of 8 PageID 119 EXHIBIT DATE DESCRIPTION PAGES of secret recording by Beasley of telephone conversation with Nel- son (transcribed by the EEOC)3 28. 07/09/13 Transcript of secret recording by Beasley of telephone conversation with Nelson (transcribed by the AccentCare from recording pro- duced by the EEOC) APP 63-65 29. 07/09/13 Transcript of second secretly rec- orded telephone conversation by Beasley of telephone conversation with Nelson (transcribed by the AccentCare from recording pro- duced by the EEOC) APP 66-67 30. 07/09/13 Deposition Exhibit 123: 5:04 p.m. Nelson email APP 68 31. 07/09/13 Beasley time sheet APP 69 32. 07/10/13 Final Pay APP 70 33. 10/25/13 Deposition Exhibit 145: Unsigned EEOC Intake Questionnaire APP 71-73 34. 11/14/13 Clinical Notes of Dr. Shahzad Al- lawala, as redacted by Beasley and as produced by the EEOC APP 74 35. 11/14/13 SEALED EXHIBIT Deposition Exhibit 147: Original, i.e., unredacted, Clinical Notes of Dr. Shahzad Allawala APP 75-76 36. 12/11/13 Deposition Exhibit 439: EEOC APP 78 3 As Beasley testified, the date listed on the transcription by the EEOC, Ju- ly 8, 2913, is incorrect. As Beasley testified, the date of the conversation re- flected in the transcription was July 9th. See pp. 58-60 of the transcript of Beasley’s deposition. 5 Case 3:15-cv-03157-D Document 23-1 Filed 09/13/16 Page 6 of 8 PageID 120 EXHIBIT DATE DESCRIPTION PAGES Case Log 37. 12/30/13 Deposition Exhibit 148: EEOC Acknowledgement Letter APP 79 38. 06/04/14 Deposition Exhibit 163: EEOC let- ter APP 80 39. 06/12/14 Deposition Exhibit 164: EEOC let- ter with draft Charge of Discrimi- nation APP 81-84 40. 07/10/14 Deposition Exhibit 442: Charge of Discrimination APP 85 41. 07/14/14 Deposition Exhibit 165: Charge of Discrimination APP 86 42. 07/15/14 EEOC Notice of Charge to Accent- Care APP 87-89 43. 08/07/14 AccentCare Position Statement (exhibits omitted) submitted to the EEOC APP 90-91 44. 08/03/15 Deposition Exhibit 359: EEOC “Cause” Determination APP 92-93 45. 08/03/15 EEOC’s Proposed Conciliation Agreement APP 94-99 46. 03/14/16 Email from EEOC attorney Su- zanne Anderson APP 100-102 47. 03/28/16 Excerpts from EEOC interrogatory responses APP 103-108 48. 03/30/16 Email from EEOC attorney Su- zanne Anderson APP 109-118 49. 03/31/16 SEALED EXHIBIT (PP 121-133) EEOC’s Supplemental Production of Dr. Allawalah’s original, unre- dacted record, first obtained by APP 119-133 6 Case 3:15-cv-03157-D Document 23-1 Filed 09/13/16 Page 7 of 8 PageID 121 EXHIBIT DATE DESCRIPTION PAGES the EEOC on 03/29/16 50. 04/07/16 SEALED EXHIBIT Allawala’s medical records regard- ing Beasley, obtained through subpoena and deposition on writ- ten questions. APP 134-159 51. 08/28/16 EEOC’s responses to second inter- rogatories APP 160-170 52. 08/28/16 Excerpts from EEOC’s responses to requests for admissions APP 171-177 53. 07/19/16 Excerpts from Alisia Beasley’s deposition APP 178-198 54. 09/06/16 Declaration of M’Liss Kane APP 199-202 55. 09/06/16 Declaration of John L. Ross APP 203-204 56. 04/24/13 Deposition Exhibit 55: Discrimina- tion and Harassment Policy & Pro- cedure Acknowledgement Form, signed by Beasley APP 205 57. EEO excerpts from AccentCare Employee Handbook APP 206-214 58. Deposition Exhibit 136: Agent Login Logout Activity Report APP 215-219 7 Case 3:15-cv-03157-D Document 23-1 Filed 09/13/16 Page 8 of 8 PageID 122