Wilson v. James Industrial Constructors

MOTION for Summary Judgment

E.D. La.December 19, 2016

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA * MICHAEL B. WILSON, * CIVIL ACTION * NO. 2:16-CV-01263 Plaintiff, * * v. * JUDGE KURT D. ENGELHARDT * JAMES INDUSTRIAL * CONSTRUCTORS, * * MAGISTRATE JANIS VANMEERVELD Defendant. * * * * * * * * * * * * * * * * * * * * * * * * * * * DEFENDANT JAMES INDUSTRIAL'S MOTION FOR SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes Defendant, James Industrial, a Division of Primoris Energy Services Corporation ("James Industrial"), incorrectly identified as James Industrial Constructors, and, pursuant to Rule 56 of the Federal Rules of Civil Procedure, files this Motion for Summary Judgment with regard to all claims alleged by Plaintiff. Based on the undisputed facts set forth in James Industrial's Statement of Materials Facts, and as more fully set forth in the contemporaneously filed Memorandum in Support, James Industrial respectfully moves this Honorable Court for summary judgment in favor of James Industrial as to all of Plaintiff's claims. Case 2:16-cv-01263-KDE-JVM Document 28 Filed 12/19/16 Page 1 of 2 BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC BY: s/Phyllis G. Cancienne PHYLLIS CANCIENNE T.A. (La. #19605) ELIZABETH A. LINER (La. #34429) 450 Laurel Street, North Tower, 20 th Floor Baton Rouge, Louisiana 70801 Telephone: (225) 381-7000 Facsimile: (225) 343-3612 E-mail: pcancienne@bakerdonelson.com E-mail: bliner@bakerdonelson.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on December 19, 2016, a copy of the foregoing was served on Plaintiff by filing same with the Court's CM/ECF electronic filing system or by mailing same via United States mail. s/ Phyllis G. Cancienne Case 2:16-cv-01263-KDE-JVM Document 28 Filed 12/19/16 Page 2 of 2 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA * MICHAEL B. WILSON, * CIVIL ACTION * NO. 2:16-CV-01263 Plaintiff, * * v. * JUDGE KURT D. ENGELHARDT * JAMES INDUSTRIAL * CONSTRUCTORS, * * MAGISTRATE JANIS VANMEERVELD Defendant. * * * * * * * * * * * * * * * * * * * * * * * * * * * DEFENDANT JAMES INDUSTRIAL'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes Defendant, James Industrial, a Division of Primoris Energy Services Corporation ("James Industrial"), incorrectly identified as James Industrial Constructors, and, pursuant to Rule 56 of the Federal Rules of Civil Procedure, submits this Memorandum in Support of its Motion for Summary Judgment as to all claims asserted in this lawsuit by Plaintiff, Michael Wilson. For the reasons set forth below, there is no genuine issue of material fact, and all of Plaintiff's claims fail as a matter of law. Accordingly, the Court should dismiss this lawsuit with prejudice at Plaintiff's cost. I. PRELIMINARY STATEMENT OF JAMES INDUSTRIAL Plaintiff has failed to establish a prima facie case as to any of his alleged claims. Plaintiff, a former employee of James Industrial, sets forth in his Complaint a litany of statutes allegedly violated by Defendant, including Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981; the Americans With Disabilities Act, 42 U.S.C. §12101 et. seq. (the “ADA”); the Genetic Information Non-Discrimination Act of 2008, 42 U.S.C. § 2000ff et seq. ("GINA"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"); the Equal Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 1 of 11 2 Pay Act of 1963, 29 U.S.C. § 206 et seq. ("EPA"); 1 as well as unspecified whistleblower laws. At the outset, Defendant submits that there is absolutely no evidence that Plaintiff was discriminated against based on his race, age, gender, disability or any other protected class. Regardless, however, Plaintiff failed to exhaust his administrative remedies as to any claim under Title VII and the ADEA since he did not file a Charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination under those statutes. Although he did file an EEOC Charge alleging violations of the ADA and GINA, that Charge was not timely filed and thus those claims are time-barred. Plaintiff's litany of other claims fail as he did not properly plead 2 such claims nor are they supported on substantive grounds. Plaintiff failed to timely respond to James Industrial's Requests for Admissions, such that those requests are deemed admitted. 3 The conclusively established evidence from his admissions demonstrates that there is no genuine issue of material fact and that Plaintiff cannot establish a prima facie case as to any of his alleged claims. Accordingly, James Industrial is entitled to summary judgment as a matter of law. II. SUMMARY OF MATERIAL FACTS James Industrial is a division of Primoris Energy Services Corporation. (SOF, ¶ 1). On January 9, 2013, Plaintiff signed an acknowledgment of receipt of James Industrial's Employee 1 Plaintiff's claim under the EPA does not warrant further discussion herein as Plaintiff cannot establish that he experienced any pay disparity based on his gender and in fact has not even alleged the same, such that this claim should be dismissed. 29 U.S.C. § 206(d)(1). 2 Courts, including this Court, have routinely dismissed claims for failure to plead essential facts in support of those claims. Valenza v. Santos, 2016 WL 7210347 (E.D. La. 2016); Roque, Jr. v. McDonald's Corp., 2016 WL 3144440 (E.D. La. 2016)(Engelhardt, J.); see also Bright v. Dep’t of Health & Hosps., 234 F.3d 705 (5th Cir. 2000); see Fed. R. Civ. Proc. 8(a)(2). Plaintiff has done nothing more than name numerous statutes and failed to plead any facts essential to his claims, and as such those claims should be dismissed. Fed. R. Civ. Proc. 8(a)(2). 3 Federal Rule of Civil Procedure ("FRCP") 36(a)(3) provides that "[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Further, a "matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." FRCP 36(b). See Murrell v. Casterline, 307 Fed.Appx. 778, 780 (5th Cir. 2008) (citing Hill v. Breazeale, 197 Fed.Appx. 331, 336 (5th Cir.2006) and Duke v. South Carolina Ins. Co., 770 F.2d 545, 549 (5th Cir. 1985)). Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 2 of 11 3 Handbook. (SOF, 4 ¶ 2). Beginning on September 8, 2013, Plaintiff was absent and did not appear for work for fourteen consecutive days. (SOF, ¶¶ 7-20). On September 30, 2013, Plaintiff worked only 3 hours then left without completing the workday. (SOF, ¶ 21). On October 2, 2013, Plaintiff worked only 2 hours then left without completing the workday. (SOF, ¶ 22). Plaintiff provided no doctor's note or statement to James Industrial verifying these absences. (SOF, ¶ 25). James Industrial required that Plaintiff provide a doctor's note or statement verifying the need for sick leave if he was absent for more than three consecutive days. (SOF, ¶ 23). Due to Plaintiff's excessive and unverified absences, he was in violation of James Industrial's Employee Handbook work rules, including but not limited to the following: "failure to perform work assigned," "excessive absenteeism or any absence without notice," and "unauthorized absence from work station during the workday." (SOF, ¶¶ 4-6). Ultimately, on October 3, 2013, Plaintiff voluntarily quit his job with James Industrial. (SOF, ¶ 3). III. ARGUMENT & AUTHORITIES A. Summary Judgment Standard. Summary judgment procedure is designed to “secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrell, 477 U.S. 317 (1986). A party is entitled to summary judgment on all or any part of a claim where “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c). Further, Rule 56(a) of the Federal Rules of Civil Procedure “mandates the entry of summary judgment, after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s 4 “SOF” refers to the Statement of Material Facts, contemporaneously filed herewith in accordance with Local Rule 56.1, which are based upon Plaintiff's deemed admissions. Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 3 of 11 4 case, and on which that party will bear the burden of proof at trial.” Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (citing, Celotex, 477 U.S. at 322). Thus, the movant may discharge its initial burden by merely pointing out the absence of evidence to support one or more essential elements to the nonmovant’s claim(s). Celotex, 477 U.S. at 323-325. Further, if "requests for admission concern an essential issue, the failure to respond to requests for admissions can lead to a grant of summary judgment against the non-responding party." Hill v. Breazeale, 197 Fed.Appx. 331, 336 (5th Cir.2006) (citing, Duke v. South Carolina Ins. Co., 770 F.2d 545, 548- 549 (5th Cir. 1985)). If the movant demonstrates the absence of a genuine dispute of material fact “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine [dispute] for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004). To meet this rebuttal burden, a plaintiff must “identify specific evidence in the record and articulate the ‘precise manner’ in which the evidence support[s] his claim[s].” 5 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). This Fifth Circuit has cautioned that “conclusory allegations, speculation and unsubstantiated assertions are inadequate to satisfy” a nonmovant’s burden in a motion for summary judgment. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002). A genuine dispute of material fact exists only if “a reasonable jury could return a verdict in favor of the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, then summary judgment should be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (a party opposing summary judgment may not rest on mere allegations or denials, but must present “affirmative evidence” setting forth specific facts and showing genuine dispute). Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 4 of 11 5 B. James Industrial is Entitled to Summary Judgment as Plaintiff's claims are Procedurally Barred. 1. Plaintiff's Claims under Title VII and the Age Discrimination in Employment Act are Barred for Failure to Exhaust Administrative Remedies. It is well-established that "before a plaintiff can bring an action in federal court under Title VII, he/she must first exhaust available administrative remedies." Ellzey v. Catholic Charities Archdiocese of New Orleans, 833 F. Supp. 2d 595, 599 (E.D. La. 2011)(Engelhardt, J.) (citing, 42 U.S.C. § 2000e-5(f)(1); Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.2002); Reed v. Northrop Grumman Ship Sys. Inc., No. Civ.A. 04-1214, 2004 WL 2115596, at *1 (E.D.La. Sept. 17, 2004)). Title VII's exhaustion requirement is satisfied only if a plaintiff files a timely charge with the EEOC and receives a statutory right-to-sue notice. Ellzey, 833 F.Supp. 2d at 600 (citing Taylor, 296 F.3d at 378-79 (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir.1996))). Thus, “[T]he filing of a charge of discrimination with the EEOC is a condition precedent to the bringing of a civil action under Title VII.” Teffera v. N. Texas Tollway Auth., 121 F. App'x 18, 21 (5th Cir. 2004) (citing, Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir.1970)). Plaintiff submitted a Charge to the EEOC, which Charge indicated the Plaintiff believed he had been discriminated against based on disability and genetic information. (R. Doc. No. 1-1). Nowhere in his Charge did Plaintiff allege that he was discriminated against based on a class protected under Title VII or the ADEA, specifically age, race, gender, national origin, or color. Id. While Plaintiff generally references Title VII in his Charge, the nature of discrimination described therein is limited to "genetic testing" and "disability" which are not subject to Title VII or the ADEA. Id. As Plaintiff failed to raise such claims in his Charge to the EEOC, he has failed Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 5 of 11 6 to exhaust his administrative remedies under Title VII and the ADEA and those claims must be dismissed as a matter of law. 2. Plaintiff's Claims Under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act are Barred as Plaintiff Filed an Untimely EEOC Charge. Generally, a charge of discrimination under Title VII, the ADEA, GINA 6 and under the ADA 7 must be filed within 180 days of the alleged discriminatory act. 42 U.S.C. § 2000e- 5(e)(1); 29 U.S.C. § 626(d)(1)(A); 29 C.F.R. § 1601.13(a)(3). However, because Louisiana is a deferral state, a plaintiff’s charge of discrimination must be filed within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d)(1)(B); 29 C.F.R. § 1601.13(a)(3). From the face of Plaintiff’s Charge, the following inescapable facts are established: (1) Plaintiff identified the dates that discrimination took place as October 3, 2013, for both the earliest and latest; and (2) Plaintiff signed the Charge on September 22, 2014. (R. Doc. No. 1-1). The 300-day filing delay lapsed on July 30, 2014. As such Plaintiff's Charge filed on September 22, 2014, was late, and Plaintiff's claims under Title VII, the ADEA, GINA and the ADA should be dismissed. C. James Industrial Is Entitled to Summary Judgment as Plaintiff Cannot Succeed on the Merits Under the McDonnell Douglas Burden Shifting Framework. Absent direct evidence of discriminatory motive, Plaintiff must establish a prima facie case of discrimination under the well-known burden-shifting framework articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Nasti v. CIBA Specialty Chemicals Corp., 492 F.3d 589, 593 (5th Cir. 2007); Crawford v. U.S. Department of Homeland Security, 245 Fed.Appx. 369, 380 (5th Cir. 2007). Though Plaintiff’s 6 GINA incorporates the remedies and procedures set forth in Title VII. 42 U.S.C. § 2000ff-6. 7 The ADA incorporates the remedies and procedures set forth in Title VII. 42 U.S.C. § 12117. Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 6 of 11 7 ADA and GINA claims are barred as untimely, which is more fully addressed above, they also fail under this framework based on substantive grounds. Only if and when a plaintiff successfully establishes a prima facie case does a defendant become obligated to produce evidence of a legitimate, non-discriminatory reason for the employment action. Cargo v. Kansas City Southern Ry. Co., 2011 WL 3879523 (W.D. La. 2011) (citing E.E.O.C. v. Chevron Phillps Chemical Co., LP, 570 F.3d 606, 615 (5th Cir.2009)). Once the employer provides a legitimate, non-discriminatory reason, the inference of discrimination or retaliation dissipates and the burden shifts back to the employee to demonstrate that the employer’s explanation is pretextual. Id. 1. James Industrial Is Entitled to Summary Judgment as Plaintiff Cannot Establish a Prima Facie Case of Disability Discrimination or Failure to Accommodate. To establish a prima facie case of discrimination under the ADA, a plaintiff must show that: (1) he has a disability; (2) he was otherwise qualified for the job; and (3) an adverse employment decision was made because of his disability. See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999); see also Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 474 (5th Cir. 2006). To establish a prima facie case for a failure to accommodate under the ADA, an individual must show that “(1) he had a disability; (2) he was qualified for the job; (3) [his employer] knew of the disability; (4) he requested an accommodation; (5) a reasonable accommodation existed that would have allowed him to perform the essential functions of the job; and (6) the [employer] failed to provide a reasonable accommodation.” Green v. Medco Health Solutions of Texas, LLC, 2013 WL 2317054, * 9 (N.D. TX 2013) (citing, Tribble v. Ouachita Parish Police Jury, 2013 WL 1411810, *5 (W.D. La. 2013); Mzyk v. N.E. Indep. Sch. Dist., 397 Fed.Appx. 13, 16 n. 3 (5th Cir. 2010)). Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 7 of 11 8 The undisputed facts demonstrate that Plaintiff cannot establish a prima facie case of discrimination or failure to accommodate under the ADA. Plaintiff has presented no evidence to demonstrate that he suffered a disability, was qualified for the job or even that he suffered an adverse employment decision. In fact, the evidence demonstrates that Plaintiff admitted that he voluntarily resigned from his position with James Industrial, and no adverse action was taken by James Industrial. (SOF, ¶ 3). Moreover, Plaintiff has failed to provide evidence to support any claim that James Industrial failed to accommodate him. As noted above, Plaintiff has not presented evidence that he suffered any disability. Regardless, Plaintiff's own admissions that he failed to call in or provide a doctor's note for his absences demonstrate that Plaintiff did not communicate any illness to James Industrial much less communicate information regarding a disability or need for accommodation. (SOF, ¶ 25). Plaintiff has failed to allege anything more than mere conclusory allegations that "this is any employment discrimination under…the Americans with Disabilities Act," and "failure to accommodate or recognize Employee's disability and illness," which is insufficient as a matter of law. Plaintiff has not produced any facts to support a claim of discrimination or failure to accommodate under the ADA. Accordingly, Plaintiff's ADA claims should be dismissed. 2. James Industrial Is Entitled to Summary Judgment as Plaintiff Cannot Establish a Prima Facie Case of Discrimination under the Genetic Nondiscrimination Act. GINA prohibits an employer from discriminating or taking adverse actions against an employee “because of genetic information with respect to the employee.” Ortiz v. City of San Antonio Fire Dept., 806 F.3d 822, 826 (5th Cir. 2015) (quoting, 42 U.S.C. § 2000ff-1(a)(1), (2)). The Court in Ortiz dismissed the plaintiff's claim as he presented no evidence that the defendant Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 8 of 11 9 had "requested, required, or purchased his genetic information, or discriminated against him on the basis of genetic information." Id. Similarly, Plaintiff cannot show that his genetic information was received by James Industrial at any point, nor that his genetic information was the basis for his separation from employment with James Industrial. As such, Plaintiff has failed to produce evidence to support this claim, requiring its dismissal. Further, Plaintiff’s claims under GINA failed based on the timeliness requirements under 42 U.S.C. § 2000ff-6 and 29 C.F.R. § 1601.13(a)(3), which is more fully addressed supra. Accordingly, James Industrial is entitled the summary dismissal of Plaintiff's GINA claims. 3. James Industrial Is Entitled to Summary Judgment as It Has Presented a Legitimate, Non-Discriminatory Reason for Plaintiff’s Separation of Employment. Even assuming Plaintiff could demonstrate a prima facie case under any of the gambit of statutes he lists in his Complaint, James Industrial is further entitled to summary judgment as to all of Plaintiff's claims as it has a legitimate nondiscriminatory reason for Plaintiff's separation from employment. While Plaintiff has admitted that he voluntarily resigned from his employment with James Industrial, even assuming he had not, there is sufficient basis for his separation from employment. (SOF, ¶ 3). Plaintiff has admitted numerous violations of James Industrial's Employee Handbook and work rules, which require that he "perform work assigned" not have "excessive absenteeism" or "unauthorized absences from work station during the day." (SOF, ¶¶ 4-6). Plaintiff admitted that he was absent and did not appear for work for 14 consecutive days and left early on two other occasions, without providing a doctor's note or verification of any need for leave. (SOF, ¶¶ 7-22, 25). Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 9 of 11 10 Plaintiff's admitted violations are sufficient to form the basis for discipline up to and including dismissal under James Industrial's policies, but most significantly Plaintiff's voluntary resignation was not an adverse action by James Industrial. Even assuming Plaintiff could demonstrate a prima facie case, James Industrial had a legitimate nondiscriminatory basis for Plaintiff's separation from employment due to his excessive absenteeism in violation of company policy. IV. CONCLUSION Plaintiff cannot demonstrate that he was discriminated against under any of the statutes that he listed in his Complaint as he has failed to present sufficient evidence of a prima facie case under any of the same. Further, James Industrial has presented a legitimate nondiscriminatory reason for Plaintiff's separation from employment with James Industrial. Moreover, Plaintiff's claims are barred as he failed to exhaust his administrative remedies and his Charge filed with the EEOC was untimely. For all of the foregoing reasons, there are no genuine issues of material fact and James Industrial is entitled to judgment as a matter of law. Respectfully, summary judgment should be granted and Plaintiff's lawsuit dismissed with prejudice and at his cost. BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC BY: s/Phyllis G. Cancienne PHYLLIS CANCIENNE T.A. (La. #19605) ELIZABETH A. LINER (La. #34429) 450 Laurel Street, North Tower, 20 th Floor Baton Rouge, Louisiana 70801 Telephone: (225) 381-7000 Facsimile: (225) 343-3612 E-mail: pcancienne@bakerdonelson.com E-mail: bliner@bakerdonelson.com ATTORNEYS FOR DEFENDANT Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify that on December 19, 2016, a copy of the foregoing was served on Plaintiff by placing the same in the United States mail, in a properly addressed envelope, with first-class postage prepaid. s/ Phyllis G. Cancienne Case 2:16-cv-01263-KDE-JVM Document 28-1 Filed 12/19/16 Page 11 of 11 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA * MICHAEL B. WILSON, * CIVIL ACTION * NO. 2:16-CV-01263 Plaintiff, * * v. * JUDGE KURT D. ENGELHARDT * JAMES INDUSTRIAL * CONSTRUCTORS, * * MAGISTRATE JANIS VANMEERVELD Defendant. * * * * * * * * * * * * * * * * * * * * * * * * * * * DEFENDANT JAMES INDUSTRIAL'S RULE 56.1 STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes Defendant, James Industrial, a Division of Primoris Energy Services Corporation ("James Industrial"), incorrectly identified as James Industrial Constructors, and, submits this Statement of Material Fact in support of its Cross-Motion for Summary Judgment. James Industrial provides the following uncontested material facts: 1. James Industrial is a division of Primoris Energy Services Corporation. (R. Doc. No. 8). 2. On January 9, 2013, Plaintiff signed an acknowledgment of receipt of James Industrial's Employee Handbook. (R. Doc. No. 15-4, attached hereto as Exhibit A, RFA 1 No. 1). 3. Plaintiff voluntarily quit his job with James Industrial on or about October 3, 2013. (Ex. A, RFA No. 24). 1 "RFA" refers to Requests for Admissions propounded to Plaintiff, which are deemed admitted. Federal Rule of Civil Procedure ("FRCP") 36(a)(3) provides that "[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Further, a "matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." FRCP 36(b). Case 2:16-cv-01263-KDE-JVM Document 28-2 Filed 12/19/16 Page 1 of 4 4. Plaintiff violated work rules set forth in James Industrial's Employee Handbook, including work rule "failure to perform work assigned." (Ex. A, RFA No. 21). 5. Plaintiff violated work rules set forth in James Industrial's Employee Handbook, including work rule "excessive absenteeism or any absence without notice." (Ex. A, RFA No. 22). 6. Plaintiff violated work rules set forth in James Industrial's Employee Handbook, including work rule "unauthorized absence from work station during the workday." (Ex. A, RFA No. 23). 7. Plaintiff did not appear for work on September 8, 2013. (Ex. A, RFA Nos. 2). 8. Plaintiff did not appear for work on September 9, 2013. (Ex. A, RFA Nos. 3). 9. Plaintiff did not appear for work on September 10, 2013. (Ex. A, RFA Nos. 4). 10. Plaintiff did not appear for work on September 11, 2013. (Ex. A, RFA Nos. 5). 11. Plaintiff did not appear for work on September 12, 2013. (Ex. A, RFA Nos. 6). 12. Plaintiff did not appear for work on September 13, 2013. (Ex. A, RFA Nos. 7). 13. Plaintiff did not appear for work on September 14, 2013. (Ex. A, RFA Nos. 8). 14. Plaintiff did not appear for work on September 15, 2013. (Ex. A, RFA Nos. 9). 15. Plaintiff did not appear for work on September 16, 2013. (Ex. A, RFA Nos. 10). 16. Plaintiff did not appear for work on September 17, 2013. (Ex. A, RFA Nos. 11). 17. Plaintiff did not appear for work on September 18, 2013. (Ex. A, RFA Nos. 12). 18. Plaintiff did not appear for work on September 19, 2013. (Ex. A, RFA Nos. 13). 19. Plaintiff did not appear for work on September 20, 2013. (Ex. A, RFA Nos. 14). 20. Plaintiff did not appear for work on September 21, 2013. (Ex. A, RFA Nos. 15). Case 2:16-cv-01263-KDE-JVM Document 28-2 Filed 12/19/16 Page 2 of 4 21. Plaintiff worked only 3 hours and left without completing the work day on September 30, 2013. (Ex. A, RFA No. 16). 22. Plaintiff worked only 2 hours and left without completing the work day on October 2, 2013. (Ex. A, RFA No. 17). 23. James Industrial policy required Plaintiff to provide a health care provider's statement or note verifying the need for sick leave if he was absent for more than three consecutive days. (Ex. A, RFA No. 20). 24. James Industrial policy required Plaintiff to advise his supervisor as soon as possible of the need to take sick leave. (Ex. A, RFA No. 19). 25. Plaintiff did not provide a doctor's statement or note to James Industrial verifying any need for sick leave in September or October of 2013. (Ex. A, RFA No. 18). BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC BY: s/Phyllis G. Cancienne PHYLLIS CANCIENNE T.A. (La. #19605) ELIZABETH A. LINER (La. #34429) 450 Laurel Street, North Tower, 20 th Floor Baton Rouge, Louisiana 70801 Telephone: (225) 381-7000 Facsimile: (225) 343-3612 E-mail: pcancienne@bakerdonelson.com E-mail: bliner@bakerdonelson.com ATTORNEYS FOR DEFENDANT Case 2:16-cv-01263-KDE-JVM Document 28-2 Filed 12/19/16 Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that on December 19, 2016, a copy of the foregoing was served on Plaintiff by placing the same in the United States mail, in a properly addressed envelope, with first-class postage prepaid. s/ Phyllis G. Cancienne Case 2:16-cv-01263-KDE-JVM Document 28-2 Filed 12/19/16 Page 4 of 4 Case 2:16-cv-01263-KDE-JVM Document 28-3 Filed 12/19/16 Page 1 of 6 Case 2:16-cv-01263-KDE-JVM Document 28-3 Filed 12/19/16 Page 2 of 6 Case 2:16-cv-01263-KDE-JVM Document 28-3 Filed 12/19/16 Page 3 of 6 Case 2:16-cv-01263-KDE-JVM Document 28-3 Filed 12/19/16 Page 4 of 6 Case 2:16-cv-01263-KDE-JVM Document 28-3 Filed 12/19/16 Page 5 of 6 Case 2:16-cv-01263-KDE-JVM Document 28-3 Filed 12/19/16 Page 6 of 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA * MICHAEL B. WILSON, * CIVIL ACTION * NO. 2:16-CV-01263 Plaintiff, * * v. * JUDGE KURT D. ENGELHARDT * JAMES INDUSTRIAL * CONSTRUCTORS, * * MAGISTRATE JANIS VAN MEERVELD Defendant. * * * * * * * * * * * * * * * * * * * * * * * * * * NOTICE OF SUBMISSION PLEASE TAKE NOTICE, that Defendant, James Industrial a Division of Primoris Energy Services Corporation ("James Industrial"), submits its Motion for Summary before the Honorable Kurt D. Engelhardt, District Court Judge for the Eastern District of Louisiana, 500 Poydras Street, Courtroom C351, New Orleans, Louisiana 70130, on Wednesday, January 4, 2016 at 9:30 a.m. Respectfully submitted, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC BY: s/Phyllis G. Cancienne PHYLLIS CANCIENNE T.A. (La. #19605) ELIZABETH A. LINER (La. #34429) 450 Laurel Street, North Tower, 20 th Floor Baton Rouge, Louisiana 70801 Telephone: (225) 381-7000 Facsimile: (225) 343-3612 E-mail: pcancienne@bakerdonelson.com E-mail: bliner@bakerdonelson.com ATTORNEYS FOR DEFENDANT Case 2:16-cv-01263-KDE-JVM Document 28-4 Filed 12/19/16 Page 1 of 2 CERTIFICATE OF SERVICE I hereby certify that on December 19, 2016, a copy of the foregoing was served on Plaintiff by filing same with the Court's CM/ECF electronic filing system or by mailing same via United States mail. s/ Phyllis G. Cancienne Case 2:16-cv-01263-KDE-JVM Document 28-4 Filed 12/19/16 Page 2 of 2