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United States District Court, N.D. Texas, Dallas Division.

OLENYNIS VEGA, Plaintiff,

v.

TYSON FOODS, INC., Defendant.

Civil Action No. 3:19-CV-1647-L

|

03/14/2021

Sam A. Lindsay, United States District Judge

MEMORANDUM OPINION AND ORDER

Before the court is Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc.

16), filed July 16, 2020. After considering the motion, briefs, admissible summary judgment evidence, and applicable law, the court grants Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc. 16), and dismisses with prejudice this action.

I. Factual and Procedural Background

Oleynis Vega (“Plaintiff” or “Ms. Vega”) originally brought this personal injury action against Tyson Foods, Inc. (“Defendant” or “Tyson”) in the 160th Judicial District Court, Dallas County, Texas, on May 14, 2019. On July 10, 2019, the action was removed to federal court based on diversity jurisdiction. In Plaintiff’s Original Petition, Ms. Vega asserts causes of action for negligence and premises liability, and she seeks damages in the form of past and future: medical expenses, pain and suffering, mental anguish, physical impairment, and lost wages, in addition to prejudgment and postjudgment interest, and costs of court. Her claims arise from an on-the-job injury she sustained to her left hand on May 16, 2017, while working for Tyson as an assembly line meat packaging operator.

On July 16, 2020, Tyson moved for summary judgment on its affirmative defense of waiver. Tyson contends that it is entitled to judgment on Plaintiff’s claims based on her election to participate in Tyson’s Workplace Injury Settlement Program (“WISP”), pursuant to which “an employee automatically receives Basic Benefits and may elect to become a Participant in the program by signing the WISP Acceptance and Waiver (“Waiver”) in order to receive Comprehensive Benefits if the employee sustains an injury in the course and scope of [his or her] employment.” Def.’s Mot. 1-2; Def.’s App. 2-3. Tyson asserts that, by signing the Waiver on June 14, 2017, Ms. Vega elected to become a Participant in WISP with respect to the on-the-job injuries she sustained on May 16, 2017 (“the Incident”) and is bound by its terms. Tyson argues that it has presented sufficient evidence to establish that the Waiver signed by Ms. Vega is enforceable under the Texas Labor Code, such that Ms. Vega settled and released all personal injury claims against Tyson arising out of the Incident and “waived any cause of action at common law or under any statute to recover damages for personal injuries, occupational disease, or death sustained in the course and scope of employment, including but not limited to claims based on negligent and grossly negligent acts or omissions.” Def.’s Mot. 2.

Plaintiff does not address Tyson’s contentions regarding the applicability of the Texas Labor Code to the Waiver in this case or whether its evidence is sufficient to establish the validity of the Waiver under the Texas Labor Code. Plaintiff, instead, focuses on whether the Waiver is unenforceable on two other grounds. In this regard, Plaintiff asserts that the Waiver she signed following the Incident does not preclude her from bringing the claims asserted in this case because it: (1) was procured by fraud; and (2) is not supported by valid consideration.

Tyson argues that Ms. Vega’s defenses to its waiver argument based on fraudulent inducement and lack of consideration are not supported by Texas law or competent evidence. Tyson, therefore, contends that these defenses are insufficient to raise a genuine dispute of material fact regarding the enforceability of the Waiver. Tyson also objects to and moves to strike Plaintiff’s affidavit on the ground that it is a “sham affidavit” that conflicts with her prior deposition testimony.

II. Motion for Summary Judgment Standard

Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’ ” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. Discussion

A. Waiver

Waiver is an affirmative defense. Fed. R. Civ. P. 8(c)(1). As the party alleging waiver, Tyson has the burden of proof. JM Walker LLC v. Acadia Ins. Co., 356 F. App’x 744, 748 (5th Cir.2009) (citing In re State Farm Lloyds, Inc., 170 S.W.3d 629, 634 (Tex. App.—El Paso 2005, no pet.)). While Tyson bears the ultimate burden of proof on this issue, the burden of production shifts to Ms. Vega if Tyson makes a prima facie showing that there is no genuine dispute as to the facts on which the defense is based. See Hernandez v. Lasko Prods., 3:11-CV-1967-M, 2012 WL 4757898, at *2 (N.D. Tex. Oct. 5, 2012) (explaining the shifting summary judgment burdens for the affirmative defense of waiver).

To be valid under the Texas Labor Code, an employee’s waiver of a cause of action against a non-subscribing employer like Tyson1 for job-related injuries must comply with Texas Labor Code §§ 406.033(f) and (g). Subsection (f) states that a cause of action by an employee after the employee’s injury may not be waived unless:

(1) the employee voluntarily enters into the waiver with knowledge of the waiver’s effect;

(2) the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury;

(3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and

(4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document.

Tex. Lab. Code Ann. § 406.033(f)(1)-(4). Subsection (g) further provides that “[t]he waiver provisions under Subsection (f) must be conspicuous and appear on the face of the agreement.” Id. § 406.033(g). Waiver provisions are “conspicuous” within the meaning of the statute if they “appear in type larger than the type contained in the body of the agreement or in contrasting colors.” Id.

Here, it is undisputed that Ms. Vega signed the Waiver; that the Waiver was entered into not less than the tenth business day after her injury was reported; that the Waiver was entered into after she received a medical evaluation from a nonemergency care provider;2 that the Waiver provision is conspicuous within the meaning of the statute, and that her negligence and premises liability claims fall within the subject matter of the released claims. Tyson also submitted evidence to establish that Ms. Vega voluntarily executed the Waiver with knowledge of its effect,3 which is sufficient to meet its initial burden of establishing a prima facie showing that there is no genuine dispute as to the material facts underpinning its waiver defense.

As noted, Ms. Vega does not dispute whether the Waiver in this case satisfies the Texas Labor Code. She, instead, argues that the Waiver is not enforceable because it was procured by fraud and is not supported by valid consideration. The court’s remaining analysis, therefore, focuses on these arguments to determine whether Ms. Vega has established a genuine dispute of material fact regarding the enforceability of the Waiver based on her contention that it was procured by fraud and is not supported by valid consideration.

B. Lack of Consideration

Plaintiff contends that the Waiver lacks the requisite consideration needed to make it enforceable because “it purports to release Tyson from further liability from suit without offering anything to [her] in exchange.” In this regard, Plaintiff asserts:

Under Tyson’s WISP program, an employee automatically receives basic benefits and may elect to become a plan participa[nt] in order to receive [C]omprehensive [B]enefits in the event of a workplace injury. Tyson also provides [its] employees an opportunity to receive health insurance benefits through [its] employment with the company. In order to receive health insurance, a portion of an employee’s paycheck is deducted to cover the health insurance. Vega opted to pay into health insurance coverage provided by Tyson and had health care coverage through Blue Cross Blue Shield (“BCBS”).

...

In this particular case, there is no valid consideration, as Vega would have been able to procure treatment for her injuries through her BCBS coverage and did not receive an additional benefit by signing the Waiver. Without any additional benefit to Vega or detriment to Tyson, there is no valid consideration. Without valid consideration, the Waiver is legally insufficient.

Pl.’s Resp. 10-11 (footnotes omitted) (emphasis added). In other words, Plaintiff argues that, although she received Comprehensive Benefits under Tyson’s WISP program after signing the Waiver, the program offered her no additional benefit in exchange for her waiver of liability because she already had personal health insurance coverage through Blue Cross Blue Shield (“BCBS”). To support the statements in the first of these two paragraphs, Plaintiff relies on her executed Waiver4 and her affidavit5 that she submitted in response to Defendant’s motion.

“[C]onsideration sufficient to support a release must consist of either a benefit to the releaser or a detriment to the person released.” Flatt v. Hill, 379 S.W.2d 926 (Tex. Civ. App.— Dallas 1964, writ ref’d n.r.e). Ms. Vega does not dispute that she received Comprehensive Benefits under the WISP program or that the treatment she received for her injury as a result of the Waiver was paid in full by Tyson. Instead, as correctly noted by Tyson, the argument that Ms. Vega received no additional benefit in exchange for her signing the Waiver is necessarily predicated on her assertion that the Comprehensive Benefits and treatment she received under the WISP program did not constitute an additional benefit because she “would have been able to procure treatment for her [workplace] injuries through her BCBS coverage.” Pl.’s Resp. 11.

At most, Plaintiff’s evidence shows that she had health insurance through BCBC. Plaintiff has offered no evidence that her personal health insurance through BCBS would have covered a work-related injury, or that BCBS would have provided her with the same or substantially similar coverage for such an injury at no additional cost to her. Thus, her unsupported and conclusory argument to the contrary that the Comprehensive Benefits she received under Tyson’s WISP program after signing the Waiver did not constitute as an additional benefit because she already had personal health insurance coverage through Blue Cross Blue Shield (“BCBS”). Accordingly, Plaintiff’s evidence is not sufficient to raise a genuine dispute of material fact in response to Defendant’s waiver defense based on lack of consideration.

C. Fraudulent Inducement

In support of her argument that the Waiver is unenforceable because she was fraudulently induced by Tyson to sign it, Ms. Vega contends, “In exchange for signing the Waiver, Tyson represented to [her] that she would be receiving proper and adequate medical treatment for her injury.” Pl.’s Resp. 12 (citing Ex. A [Pl.’s Aff.] & Ex. B [Pl.’s Nov. 13, 2019 Dep. Tr.] ) (emphasis added).6 Relying on her affidavit, Plaintiff further contends that:

Tyson also represented to [her] that the only way to receive any medical treatment for her injury was to sign the Waiver; however, this statement is a false representation, as [she] had health insurance through her employment with Tyson and could have obtained treatment using her BCBS coverage. When [she] was told by Tyson representatives that she would not receive any treatment for her hand if she did not sign the Waiver, she believed that statement to mean she would also be precluded from using her BCBS health insurance for treatment, as her BCBS was also a benefit that she received through her employment with Tyson. Because [she] already had health insurance through BCBS, she did not understand that the [C]omprehensive WISP [B]enefits were a different type of benefit. She believed them to be the same coverage, and when she was told that she would lose all medical care for her injury if she did not sign the Waiver, she believed that she would not have access to any medical care. This in fact was not true. Had [she] not been pressured into signing the Waiver, she still could have sought treatment for her injuries through the BCBS health insurance that she paid into through her employment with Tyson. By representing to [her] that she would lose all medical treatment by refusing to sign the Waiver, Tyson representatives made a material misrepresentation of fact to [her][.]

While Tyson’s representatives may have been unaware that [she] had health insurance coverage [through BCBS] and may not have explicitly known that their material misrepresentation was false, the claim that [she] would not receive any treatment for her injury was certainly made recklessly without knowledge of its truth. In the alternative, had Tyson’s representatives known that [she] did in fact have health insurance [through BCBS], then they would have known the falsity of their statement at the time it was relayed to [her]. While Plaintiff believes that by making the false assertion that she needed to sign the Waiver in order to receive treatment for her injury, Tyson’s intent was to procure [her] signature on the Waiver, the question of intent has been found to be “uniquely within the realm” of a jury as it “so depends on the credibility of the witnesses and the weight to be given to their testimony.” Jones v. Ray Ins. Agency, 59 S.W.3d 739, 753-54 (Tex. App.— Corpus Christi 2001, pet. [d]enied) (citing Benoit v. Wilson, 150 Tex. 273, 281 (1951)); therefore, this is certainly a genuine issue of material fact to be heard by a jury.

Id. at 12-13 (footnotes omitted). In addition, Mr. Vega contends that the Waiver was procured by fraud because “Tyson falsely represented to [her] that she would receive proper and adequate medical treatment for her injury if she signed the Waiver.” Id. at 5 (emphasis added). Plaintiff asserts that, “[w]hile she did receive treatment [through the WISP program], she did not receive proper and adequate medical treatment for her injury.” Id.

Plaintiff further asserts that she signed the Waiver in reliance on Tyson’s false statement, and, as a result of her reliance on the false statement and decision to sign the Waiver, she has been damaged as follows:

[She] has suffered in that she has not received the proper medical treatment promised to her by Tyson. To this day, she still continues to suffer from the injuries sustained in the Incident and has had to significantly alter her lifestyle to accommodate to the injuries. [She] has further suffered injury from signing the Waiver, as Tyson is now claiming that she has given up her right to seek legal redress for her injuries.

Id. at 13 (emphasis added).

Tyson responds that Ms. Vega’s fraudulent inducement argument, which was raised for the first time in response to its summary judgment motion, is without merit because there is no competent evidence to support it. Tyson argues that the competent summary judgment evidence, instead, establishes that: (1) she admitted to reading the entire Waiver before signing it; (2) she admitted to signing the Waiver; (3) she accepted and received the Comprehensive Benefits paid solely by Tyson under the WISP program in exchange for her signing the Waiver in the form of treatment for her job-related injuries; and (4) her reading and signing the Waiver occurred on June 14, 2017, approximately one month after the Incident. Tyson contends, as before, that Plaintiff has no evidence to support her assertion that her private health insurance through BCBS would have covered treatment for the job-related injuries she sustained to her hand. Tyson, therefore, argues that Plaintiff has not shown that any false statements in this regard were made to her. In addition, Tyson argues that Plaintiff cannot rely on her “sham affidavit” to show that it falsely informed her that her injuries would not be covered under the personal BCBS health insurance that she had before the Incident, as this directly conflicts with her deposition testimony that no one told her this. Def.’s Reply 6-8.

Regarding Plaintiff’s argument that she has not received the proper medical treatment promised to her by Tyson and has incurred damages because “she continues to suffer from the injuries sustained” to her hand despite the treatment she received, Tyson responds that its motion and evidence demonstrate that she received “[C]omprehensive [B]enefits under the WISP program” and that she, therefore, has “already been compensated for her injury.” Id. at 5.

A claim for common law fraud under Texas law requires: “a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.” Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (citation and internal quotation marks omitted). “Fraudulent inducement is a distinct category of common-law fraud that shares the same elements but involves a promise of future performance made with no intention of performing at the time it was made.” Id. “[A]bsent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he [or she] signed, regardless of whether he [or she] read it or thought it had different terms.” In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005).

The court agrees with Tyson that Plaintiff’s fraudulent inducement defense to the enforcement of the Waiver is flawed and fails for the same reason her lack of consideration defense fails. As with her lack of consideration argument, Ms. Vega premises her fraudulent inducement defense on the same unsubstantiated belief and assertion that she still could have sought and received treatment for her injuries through her BCBS health insurance if she had not signed the Waiver. Without evidence, however, that Ms. Vega’s BCBS health insurance would have covered and provided, at no additional cost, similar coverage for the work-related injuries she sustained as a result of the Incident, her contention that Tyson representatives told her something different is insufficient to show that Tyson or its representatives made a “material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth. Zorrilla, 469 S.W.3d at 153.

Further, Plaintiff’s evidence does not support her contention that the Waiver was procured by fraud or that she suffered damage as a result of promises regarding the level of treatment she would receive. As noted, Plaintiff contends in her response that “Tyson falsely represented to [her] that she would receive proper and adequate medical treatment for her injury if she signed the Waiver,” and “[w]hile she did receive treatment, she did not receive proper and adequate medical treatment for her injury.” Id. at 5 (emphasis added). Plaintiff, however, does not state in her affidavit that Tyson or its representatives represented to her that she would receive “proper and adequate” treatment for her injury. Instead, she merely states that it was “her understanding in signing the Waiver that Tyson [ ] would get me the proper treatment to ensure that my hand returned to normal.” Pl.’s App. 4 (Pl.’s Aff. ¶ 15) (emphasis added).

Plaintiff also states in her affidavit that, in signing the Waiver, she relied on unspecified “statements Tyson [ ] made to her about providing the medical treatment [she] needed; however, I do not feel that they carried out their end of the bargain, as my hand is still suffering ongoing injuries as a result of the [I]ncident.” Id. at 4 (Pl.’s Aff. ¶ 16). Again, though, there is no evidence that: Tyson ever promised to provide a particular level of treatment other than the Comprehensive Benefits provided under the WISP Program; that the treatment Plaintiff received was something other than the Comprehensive Benefits provided under the WISP Program; or that Tyson ever promised that Plaintiff’s hand would “return[ ] to normal” as a result of the treatment she would receive under the WISP program. Plaintiff also fails to point to any portion of the WISP program documentation or the Waiver she signed to show that she was promised a level of treatment or specific outcome as a result of the treatment. As a result, the foregoing statements in Plaintiff’s affidavit that are based on her unsubstantiated belief and vague, conclusory statements that she believed she would receive “proper treatment” and was told that she would be “provid[ed] the medical treatment [she] needed” are insufficient to defeat Defendants’ summary judgment motion. See Eason, 73 F.3d at 1325; Forsyth, 19 F.3d at 1533. Plaintiff’s contention that she was fraudulently induced to sign the Waiver is, therefore, insufficient to raise a genuine dispute of material fact regarding the validity or enforceability of the Waiver.

Having determined that Plaintiff’s fraudulent inducement defense fails for the reasons stated, the court need not address in detail Tyson’s alternate argument and contention regarding Plaintiff’s “sham affidavit.” The court agrees that the statement in Plaintiff’s affidavit, that Tyson or Tyson’s representative falsely informed her that her injuries would not be covered under her personal BCBS health insurance, directly conflicts with her deposition testimony that no one made such statement to her. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (“It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony.”) (footnote and citations omitted). “When an affidavit merely supplements rather than contradicts prior deposition testimony, the court may consider the affidavit when evaluating genuine issues in a motion for summary judgment.” Id. at 486 (citation omitted). An affidavit, however, may be not used to contradict sworn deposition testimony. Id. Accordingly, the court declines to consider the contradictory statement made by Ms. Vega in her affidavit.

D. Voluntariness of Waiver

Ms. Vega acknowledges that she read the Waiver before signing it. She, nevertheless, contends that she was confused, did not fully understand some of the technical terms, and felt pressured by an unnamed nurse. Regarding these matters, Ms. Vega states in her affidavit that: (1) she did not fully understand some technical terms in the Waiver; (2) she was confused because she thought that the comprehensive benefits offered under the WISP program were the same as those that she already had under her personal BCBS health insurance; (3) she was in a lot of pain and felt pressured by a “male nurse” who told her “they” would discontinue treating her job-related injury if she did not sign the Waiver—she thought the nurse meant that she would no longer be able to get help for her injury through her BCBS health insurance; and (4) she “felt a little bit of pressure” because she was afraid of losing her job and was afraid she would not be able to afford medical care for her injury if she did not sign the Waiver. Pl.’s Resp. 12-13; Pl.’s App. 3-4 (Pl.’s Dep ¶¶ 8-14).

Tyson responds that, while Plaintiff has couched these assertions as “fraudulent inducement,” similar arguments regarding the enforceability of a waiver based on duress were rejected by the court in Walkup v. Tyson Foods, Inc., 7:13-CV-0150-O, 2014 WL 4798443 (N.D. Tex. Sept. 26, 2014). Tyson asserts that the plaintiff in Walkup similarly argued that: (1) he was told he would be denied medical care if he failed to sign the waiver; and (2) he was implicitly threatened with firing if he did not sign. Tyson contends that, like the plaintiff in Walkup, Ms. Vega “has presented no evidence that she signed the wavier under duress or any false pretense.” Def.’s Reply 6.

Ms. Vega does not expressly argue that the Waiver is not enforceable because she did not voluntarily sign the Waiver; nor does she argue that she signed the Waiver under duress. Instead, as noted by Defendant, all of the foregoing assertions in her response brief and the statements in her affidavit were made in support of her fraudulent inducement argument, which the court has already determined fails for the reasons explained. Because Ms. Vega did not brief what law would apply to a claim of duress or explain why the requirements for any such claim are satisfied here, the court determines that this issue is waived, and it need not address whether the evidence she relies on is sufficient to establish duress and raise a genuine dispute of material fact regarding the enforceability of the Waiver she signed. See Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007) (explaining that inadequately briefed issues are considered waived).

Likewise, she does not explain why her evidence that she was confused or did not understand certain technical terms in the Waiver is sufficient to raise a genuine dispute of material fact regarding the voluntariness of her waiver under § 406.033(f)(1). Any such argument is also waived. Id. Even assuming that she did not waive a voluntariness argument by not specifically responding to Defendant’s contention and evidence regarding the voluntariness of her signing the Waiver under the Texas Labor Code, the court determines that Ms. Vega’s evidence regarding her confusion and lack of understanding is insufficient to raise a genuine dispute of material fact regarding the voluntariness of her Waiver.

Section 406.033(f)(1) of the Texas Labor Code addresses the voluntariness of a waiver and, as noted, provides that a cause of action by an employee after the employee’s injury may not be waived unless “the employee voluntarily enters into the waiver with knowledge of the waiver’s effect.” “An employee who signs a waiver has presumptive knowledge of its contents and effect under Texas Labor Code § 406.033(f)(1).” Hernandez, 2012 WL 4757898, at *3 (citing Lopez v. The Garbage Man, Inc., No. 12-08-00384-CV, 2011 WL 1259523 at *8, 15, 18 (Tex. App.—Tyler Mar. 31, 2011, no pet.) (concluding that a person who signs a contract “is presumed as a matter of law to have read and understood the contract unless he [or she] was prevented from doing so by trick or artifice.”); see also In re McKinney, 167 S.W.3d at 835 (explaining that, absent fraud or deceit, a party is bound by the terms of the contract he or she signed, regardless of whether he or she “read it or thought it had different terms”).

Like this case, Lopez involved an employee waiver of liability. The Lopez court concluded that the presumption that an employee read and understood the waiver he or she signed applied in determining whether, under § 406.033(f)(1), an employee voluntarily entered into a waiver with knowledge of its effect. Id. at *18; see also Hernandez, 2012 WL 4757898, at *3 (same). The Lopez court also concluded that, as a result of this presumption, Lopez had actual knowledge of the release, and that this negated the common law fair notice requirements of conspicuousness and the express negligence rule.” Id. at *15.

Here, the undisputed evidence is that Ms. Vega was presented with and signed the Waiver on June 14, 2017; that the Waiver was explained to her and she was provided an opportunity to ask questions before she signed it; that, before signing the Waiver, she did not ask questions regarding the matters she now says caused her confusion or did not understand; that she executed the Waiver in Spanish, her native language; that the Waiver signed by her was also witnessed and signed by Tyson’s Human Resources Director; and that she continued to receive Comprehensive Benefits under the WISP program paid by Tyson as a result of the Waiver, including physical therapy and surgery, through at least January 2018, after she filed this lawsuit. Def.’s App. 3; Def.’s Reply App. Ex. H (Pl.’s Dep. 45-47, 66).

Further, the Waiver signed by Mr. Vega states:

WAVIER AND RELEASE: In exchange for eligibility for any Comprehensive Benefits under the [WISP] Program, I HEREBY VOLUNTARILY RELEASE, WAIVE, AND FOREVER GIVE UP ALL MY RIGHTS, CLAIMS AND CAUSES OF ACTION, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, THAT I MAY HAVE AGAINST THE COMPANY, TYSON FOODS, INC. AND THEIR PARENT, SUBSIDIARY AND AFFILIATED COMPANIES AND ALL OF THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES AND AGENTS THAT ARISE OUT OF OR ARE IN ANY WAY RELATED TO THE INJURIES (INCLUDING A SUBSEQUENT OR RESULTING DEATH) SUSTAINED IN THE COURSE AND SCOPE OF MY EMPLOYMENT WITH THE COMPANY. I EXPRESSLY UNDERSTAND THAT INCLUDED IN THE CLAIMS THAT I AM RELEASING, WAIVING AND GIVING UP

ARE CLAIMS BASED ON NEGLIGENT OR GROSSLY NEGLIGENT ACTS OR OMISSIONS.

Def.’s App. 9-10 (Spanish version), 38-39 (English version). The Waiver also states that “I understand” that: Comprehensive Benefits provided under the Waiver are through Tyson’s WISP program, referred to in the Waiver as the “Program”; that to be entitled to Comprehensive Benefits under the WISP program, Plaintiff must waive her right to sue Tyson for “damages of any nature related to [her] on-the-job injury”; that she was electing to participate in the WISP program, knowing that her injuries and damages could be more severe than she was aware at that time she signed the Waiver; that Tyson is a non-subscriber to the Texas Workers’ Compensation Act; and that signing the Waiver “is NOT a condition of my employment with [Tyson].” Id.

Based on this evidence, the court concludes that Plaintiff’s evidence that she was pressured or confused regarding the difference between the WISP program and her personal health insurance through BCBS is insufficient to overcome the presumption in Lopez or establish that the Waiver she signed was procured by fraud or deceit. The conclusory statement in her affidavit that she did not understand certain unspecified technical terms is similarly insufficient to overcome the presumption in Lopez and In re McKinney that she read and understood the terms of the Waiver for purposes of defeating Defendants’ summary judgment motion based on its waiver defense. See Eason, 73 F.3d at 1325. As a result, Plaintiff has failed to raise a genuine dispute of material fact regarding the voluntariness of her Waiver.

IV. Conclusion

For the reasons explained, Tyson is entitled to judgment on its affirmative defense of waiver. Accordingly, the court grants Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc. 16) and dismisses with prejudice this action and all claims asserted by Mr. Vega. In accordance with Rule 58 of the Federal Rules of Civil Procedure, judgment will issue by separate document.

It is so ordered this 14th day of March, 2021.

Sam A. Lindsay

United States District Judge

Footnotes

1

It is undisputed that Tyson is a non-subscriber to the Texas Workers’ Compensation Act.

2

Plaintiff acknowledges that she received medical treatment but contends that she has not received the “proper and adequate medical treatment for her injury” that was promised to her by Tyson if she signed the Waiver. See Pl.’s Resp. 5, 12, 13. Plaintiff does not dispute that, before signing the Waiver, she received a medical evaluation from a nonemergency care doctor. She also has not asserted a breach of contract claim against Tyson for failure to perform as promised in exchange for the Waiver. Plaintiff, instead, makes the contention regarding the adequacy of the medical treatment she received after signing the Waiver in support of her fraudulent inducement argument. The court, therefore, only considers this argument by Plaintiff in addressing her assertion that the Waiver is unenforceable because it was procured by fraud.

3

See infra pp. 13-16.

4

Plaintiff cites to Exhibit C of the appendix to her response.

5

Plaintiff cites to Exhibit A and A-1 of her appendix. Exhibit A is Plaintiff’s affidavit in which she similarly references Exhibit A-1 in stating that a copy of her insurance card with BCBS is attached as Exhibit A-1. Plaintiff’s appendix, however, does not include an Exhibit A-1. On the other hand, the court sees from the table of contents to Plaintiff’s appendix that this insurance card is included in Exhibit D. Confusion regarding the evidence relied on by Plaintiff and time spent by the court attempting to sort out such confusion could have been avoided if she had simply cited to the appropriate appendix page numbers as required by this district’s Local Civil Rules, rather than citing generally to exhibits, some of which are 90 pages in length. Regardless, it is undisputed that Plaintiff had health insurance coverage through BCBS.

6

Plaintiff’s Exhibit B is approximately 90 pages long. Plaintiff does not indicate in her response which portion of her deposition testimony or this exhibit that she is relying on to support this assertion, and it is not incumbent on the court to sift through the record to find evidence supporting Plaintiff’s opposition to Defendant’s summary judgment motion. Ragas, 136 F.3d at 458; Skotak, 953 F.2d at 915-16 & n.7.

DONALD WATKINS, Plaintiff,

v.

SALEM CARRIERS INCORPORATED, CHRISTI I. WHITAKER, SALEM SAFETY DEPARTMENT, CRUM & FORSTER INSURANCE BROKERS, TAMMIE ROSSITER MANAGER, and TONI WHITLOW, CRUM & FORSTER ADJUSTER, Defendants.

Civil Action No. 3:19-CV-2252-X-BH

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Filed 11/24/2020

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

*1 Referred to U.S. Magistrate Judge1

Before the Court is Plaintiff’s Motion to ... Remand, filed July 6, 2020 (doc. 24). Based on the relevant filings and applicable law, the motion should be GRANTED.

I. BACKGROUND

On August 16, 2019, Donald Watkins (Plaintiff) sued Salem Carriers Incorporated, Cristi I. Whitaker, and Salem Safety Department (collectively Salem Defendants), and Crum & Forster, Tammie Rossiter, and Toni Whitlow (collectively Crum Defendants), in County Court at Law No. 4 in Dallas County, Texas, for discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), and the Texas Workers’ Compensation Act, V.T.C.A., Labor Code § 401.001 et seq. (TWCA). (doc. 1-6 at 1-7.)2 His state court petition alleges that the defendants “discriminated and retaliated against [him] for suffering a disability and exercising his Texas right to file for Worker’s Compensation claim by denying employment accommodation and terminating [his] employment in direct violation of the ADA and [TWCA].” (Id. at 6.) Plaintiff seeks “lost past light duty wages in the amount of $30,000,” “lost future wages for five years in the ammount [sic] of $179,400,” and “punitive damages in the amount of $100,000 from each Defendant.” (Id. at 6-7.)

On September 19, 2019, Crum Defendants removed the action, asserting federal question jurisdiction based on Plaintiff’s ADA claims and supplemental jurisdiction over his remaining claims. (See doc. 1 at 3.)3 Plaintiff moved to remand this action on October 11, 2019, asserting a lack subject matter jurisdiction because his ADA claim was under investigation by the EEOC and he had not exhausted his administrative remedies when the case was removed. (doc. 7 at 1-2.) He also alleged that he was never served the notice of removal. (Id. at 1.) On May 12, 2020, it was recommended that the motion to remand be denied because the requirements for removal had been satisfied and federal question jurisdiction existed at the time of removal, and the recommendation was accepted on June 22, 2020. (See docs. 20, 23.)

On July 6, 2020, Plaintiff moved for leave to amend his complaint to drop his ADA claim, and for remand of his remaining state law TWCA claim. (See doc. 24.) Defendants opposed the motion on grounds that he was only seeking to defeat federal jurisdiction. (See docs. 27, 28.) On September 28, 2020, Plaintiff and Crum Defendants filed a joint stipulation of dismissal of all of Plaintiffs claims against Crum Defendants with prejudice. (See doc. 31.) After a hearing on October 29, 2020, his motion for leave to amend the complaint to drop his ADA claim was granted, and the amended complaint was ordered filed. His motion for remand remains pending.

II. REMOVAL

*2 Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over that action. 28 U.S.C. § 1441(a). A district court’s original jurisdiction is of two types: federal question jurisdiction and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Federal question jurisdiction exists in all civil actions arising under the Constitution, laws, or treaties of the United States. Id. § 1331. Diversity jurisdiction exists in all civil actions where the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and there is diversity of citizenship. Id. § 1332(a).

To determine whether removal jurisdiction exists, the court must “consider the claims in the state court petition as they existed at the time of removal.” Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). Additionally, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Id. If there is “any doubt about the propriety of removal, [it] must be resolved in favor of remand.” Gasch v. Hartford Acc. & Indem. Co., In this case, Defendant asserted federal question jurisdiction as a basis for removal. Federal question jurisdiction exists only when a federal question is presented on the face of the plaintiff’s well-pleaded complaint. Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal question is presented when “a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Singh v. Duane Morris LLP, 538 F.3d 334, 337-38 (5th Cir. 2008). To determine whether resolution of a substantial question of federal law is necessary, courts must determine whether “(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial [*4] responsibilities.” Id. at 338.

Here, Plaintiff’s state petition contained a federal statutory claim, i.e., the ADA claim, at the time of removal. He previously moved to remand the case on grounds that his ADA claim was still pending before the EEOC, so he had not yet exhausted his administrative remedies, and that he had not been served with the notice of removal. (See docs. 6, 7.) The Court found that federal question jurisdiction existed over his ADA claim, so removal of the case to federal district court was proper. (See docs. 20, 23.)

III. REMAND

Plaintiff has now amended his complaint to drop the ADA claim and he seeks remand of the remaining TWCA claim. (See docs. 24, 47, 49.) Salem Defendants object on grounds that voluntary amendment of the complaint to eliminate the federal claim upon which removal was based does not defeat federal jurisdiction. (See doc. 28 at 6-7.) They argue that the Court should exercise supplemental jurisdiction over the remaining claim.

A plaintiff cannot “replead to divest the federal court of jurisdiction and therefore require remand to state court.” 16 Front St., L.L.C. v. Mississippi Silicon, L.L.C., 886 F.3d 549, 559 (5th Cir. 2018); see also Rockwell Int’l Corp. v. United States, 549 U.S. 457, 474 (2007) (“[W]hen a defendant removes a case to federal court based on the presence of a federal claim, an amendment eliminating the original basis for federal jurisdiction generally does not defeat jurisdiction.”) (citations omitted). A federal district court has discretion to remand a properly removed case to state court when all federal-law claims have been eliminated and only pendent state-law claims remain. Jones v. Roadway Express, Inc., 936 F.2d 789, 792 (5th Cir. 1991).

*3 Under § 1367(a), federal courts have “supplemental jurisdiction over all other claims that are so related to claims in the action within [its] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” In essence, § 1367(a) grants the courts the “power to hear a state law claim under pendent or supplemental jurisdiction if (1) the federal issues are substantial, even if subsequently decided adverse to the party claiming it; and (2) the state and federal claims derive from a common nucleus of operative fact.” McKee v. Texas Star Salon, LLC, No. 3:15-CV-1162-D, 2007 WL 2381246, at *4 (N.D. Tex. Aug. 21, 2007) (citations omitted); see also United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1996). Here, Plaintiff’s state and federal claims derived from one nucleus of operative fact as required for supplemental jurisdiction – they all stemmed from Plaintiff’s work injury.

Under § 1367(c), a court may also decline to exercise supplemental jurisdiction over a state claim if:

(1) the claim raises a novel or complex issue of law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1376(c). When all federal claims are dismissed prior to trial, the general rule in this circuit is to decline exercising jurisdiction over the remaining state law claims. LaPorte Constr. Co. v. Bayshore Nat’l Bank, 805 F.2d 1254, 1257 (5th Cir. 1986); see also 28 U.S.C. § 1367(c)(3). This rule is “neither mandatory nor absolute,” however. Smith v. Amedisys Inc., 298 F.3d 434, 447 (5th Cir. 2002) (citation omitted). Rather, district courts are given wide discretion in deciding whether to exercise jurisdiction under such circumstances. See Heaton v. Monogram Credit Card Bank, 231 F.3d 994, 997 (5th Cir. 2000); Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993); see also United Mine Workers, 383 U.S. at 726 (“[P]endent jurisdiction is a doctrine of discretion, not of [a] plaintiffs right.”). In exercising this discretion, courts should consider issues of judicial economy, convenience, and fairness to the litigants. LaPorte Constr. Co., 805 F.2d at 1257. “[N]o single factor is dispositive.” Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008).

Despite the otherwise broad grant of supplemental jurisdiction to federal district courts, it is limited in cases arising under state worker’s compensation laws by 28 U.S.C. § 1445. It provides that “[a] civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.” 28 U.S.C. § 1445. Plaintiff’s “claim of retaliatory termination under § 451.001 [of the Texas Labor Code] is a claim arising under Texas worker’s compensation laws” for purposes of § 1445(c). 132 F.3d 1112, 1118 (5th Cir. 1998) (citing Jones v. Roadway Express, Inc., 931 F. 2d 1086, 1092 (5th Cir. 1991)). In Sherrod, the Fifth Circuit Court of Appeals “broadly interpret[ed] § 1445(c) in order to further Congressional intent toward maintaining state court jurisdiction over worker’s compensation cases filed in state court.” Id. (citing Jones, 931 F.2d at 1092). It therefore held that “§ 1445(c) prohibits removal of state worker’s compensation claims regardless of whether jurisdiction is based on diversity or federal question.” Id. at 1118-19. Accordingly, it found that the district court had erred by failing to sever and remand the plaintiff’s worker’s compensation retaliation claim under § 451.001, which had been removed because it was coupled with a federal age discrimination claim. See id.

*4 Likewise, in this case, despite the fact that Plaintiff’s remaining state law TWCA claim under § 451.001 was coupled with a federal employment discrimination claim, § 1445(c) requires remand. See id.; see also Perkins v. Child Care Associates, No. 4:16-CV-694-A, 2016 WL 5079922, at *2 (N.D. Tex. Sept. 16, 2016) (“courts have routinely found that § 1445(c) requires remand of claims for retaliatory discharge as arising under Tex. Labor Code § 451.001” )(citing Jones, 931 F.2d at 1091 (collecting cases in which a claim of employment discrimination stemming from the employee’s filing a workers’ compensation claim)).

III. RECOMMENDATION

Plaintiff’s motion to remand should be GRANTED, and the case should be REMANDED to County Court at Law No. 4 in Dallas County, Texas for further proceedings.

SO RECOMMENDED on this 24th day of November, 2020.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

Footnotes

1

By Special Order No. 3-251, this pro se case was automatically referred for full case management.

2

Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers at the bottom of each filing.

3

The joint notice of removal stated that Salem Defendants consented to removal. (docs. 1 at 5; 1-19.)

United States District Court, N.D. Texas, Amarillo Division.

Pete GARCIA, Plaintiff,

v.

CITY OF AMARILLO, TEXAS, Defendant.

2:18-CV-95-Z-BR

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Signed 07/22/2020

Attorneys & Firms

Shawn D. Twing, Elizabeth Ann Chermel, Mullin Hoard & Brown LLP, Amarillo, TX, for Plaintiff.

Bettye Lynn, Lynn Law PLLC, Fort Worth, TX, Bryan Scott McWilliams, City of Amarillo, Amarillo, TX, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE

*1 Before this Court is “Defendant’s Motion for Summary Judgment” (“Motion for Summary Judgment”) filed by Defendant City of Amarillo, Texas (“Defendant”), on November 11, 2019. In the motion, Defendant moves for summary judgment on all claims against it made by Plaintiff Pete Garcia (“Plaintiff”).1 For the reasons stated below, the Court GRANTS Defendant’s Motion for Summary Judgment in its entirety.

I. BACKGROUND

The facts of this case are lengthy and have been comprehensively recited at multiple points in multiple filings. See ECF Nos. 65 at 6–11, 69 at 6–11. The Court therefore declines to repeat them in their entirety and instead will simply cite to the record when appropriate. Nevertheless, these facts can be briefly summarized as follows.

Plaintiff was employed by Defendant as a firefighter and suffered an ear injury in an on-the-job accident involving an air horn. Defendant placed Plaintiff on leave with full pay for 24 weeks while he recovered from his injury. During this period, Plaintiff submitted grievances to Defendant against co-employees that he believed were responsible for the injury and acquired an attorney. Plaintiff then returned to light-work duty about six months after his injury and was required to sign a document indicating the receipt of new work-related policies issued during his leave of absence. Plaintiff expressed discomfort in signing the document without first consulting his attorney and did not sign it. Consequently, he was placed back on leave with pay and given the document and an accompanying packet containing the policies to review and sign. He also was instructed not to train at any of the fire stations at his work. Plaintiff returned to one of the stations to access his email on its computer system, and an argument between him and the district chief at the station ensued. Plaintiff eventually left the station and later met with a different district chief to discuss what had happened at the station. Two days later, Plaintiff failed to appear at the city hall as directed to discuss his purportedly insubordinate behavior. He was indefinitely suspended the next day, which is tantamount to termination.

On April 25, 2018, Plaintiff filed a complaint against Defendant in the District Court of Potter County, Texas, 320th Judicial District (ECF No. 1-6) for unlawful discrimination under Texas Labor Code Section 21.051 and failure to comply with the Family and Medical Leave Act. On May 15, Defendant removed the case to this Court (ECF No. 1) and filed an answer to Plaintiff’s complaint (ECF No. 2).

On the same date, Defendant filed a motion to dismiss (ECF No. 3). On June 14, Plaintiff filed a response to Defendant’s motion to dismiss (ECF No. 11), to which Defendant replied on June 28 (ECF No. 14). On October 29, the United States Magistrate Judge entered findings and conclusion regarding Defendant’s motion to dismiss and recommended that it be denied without prejudice (ECF No. 27). On November 30, the Court adopted the Magistrate Judge’s findings, conclusions, and recommendation (ECF No. 29).

*2 On October 4 of the same year, Plaintiff filed an amended complaint against Defendant (ECF No. 26). On October 3, 2019 — almost a year later — Plaintiff filed a second amended complaint against Defendant (ECF No. 60) for the same causes of action as in his initial complaint as well as for retaliation under Title VII of the Civil Rights Act of 1964 and injuries under the Americans with Disabilities Act. On October 5, Defendant filed an answer to Plaintiff’s second amended complaint (“Second Amended Complaint”) (ECF No. 64).

On November 8, Defendant filed the Motion for Summary Judgment now before this Court (ECF No. 65). On December 6, Plaintiff filed a response to Defendant’s Motion for Summary Judgment (ECF No. 69). Finally, on December 23, Defendant filed a reply to Plaintiff’s response (ECF No. 72).

II. LEGAL STANDARD

In a civil case, “[a] party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought.” FED. R. CIV. P. 56(b). When a summary judgment movant does not have the burden of proof on a claim, it may obtain summary judgment by pointing the court to the absence of evidence on any essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once it does so, the nonmovant must go beyond its pleadings and designate specific facts demonstrating that there is a genuine issue of material fact for trial. See id. at 324-25 (citations omitted); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted) (stating that “if the movant does, however, meet this burden [of demonstrating the absence of a genuine issue of material fact], the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial”).

A genuine issue of material fact exists if the evidence is such that a reasonable trier of fact could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To meet its burden of showing that there is a genuine issue of material fact for trial, the nonmovant must show more than “some metaphysical doubt as to the material facts,” or by “conclusory allegations,” “unsubstantiated assertions,” or “only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal marks omitted). Summary judgment is mandatory where the nonmovant fails to meet this burden. Id. at 1076. Additionally, summary judgment evidence must be viewed in the light most favorable to the nonmovant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1994) (stating that the court “must review the facts drawing all inferences most favorable to the party opposing the motion” (internal marks omitted)).

III. ANALYSIS

In the Second Amended Complaint, Plaintiff alleges several causes of action listed below as follows:

• Disparate treatment and retaliation under Chapter 21 of the Texas Labor Code (also known as the Texas Commission on Human Rights Act, or the “TCHRA”);

• Retaliation under 42 U.S.C. § 2000e-3(a) (“Title VII”);

• Violations under the Family Medical Leave Act (the “FMLA”); and

• Disparate treatment and retaliation under the Americans with Disabilities Act (the “ADA”).

In response to these claims, Defendant first argues that they all should be dismissed “because Plaintiff failed to meet mandatory requirements contained in all the statutes that contain deadlines that must be met in order for a case to move forward.” ECF No. 65 at 12–13. Defendant then argues on a variety of grounds that Plaintiff has failed to meet essential elements of each of his claims.

*3 The Court will first analyze the preliminary issue of administrative exhaustion. Then, when examining Plaintiff’s claims and Defendant’s arguments against them, the Court will address them in an order different from that listed by Plaintiff in his Second Amended Complaint. As explained below, Plaintiff’s claims under state law are largely governed by the same legal standards as their counterparts under federal law. Consequently, the Court determines that claims of the same kind are best discussed together. Specifically, the Court will address Plaintiff’s disparate treatment claim under Texas law with his disparate treatment claim under the ADA and his retaliation claim under Texas law with his retaliation claim under Title VII and the ADA.

A. Administrative Exhaustion

The Court begins by examining the issue of administrative exhaustion under Plaintiff’s claims under both federal and state law.

1. Administrative Exhaustion under Title VII and the ADA

“Employment discrimination plaintiffs must exhaust administrative remedies before pursuing claims in federal court. Exhaustion occurs when the plaintiff files a timely charge with the [Equal Employment Opportunity Commission (“EEOC”) ] and receives a statutory notice of right to sue.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002). Administrative exhaustion under the ADA regarding employment follows the same procedures as that under Title VII. See 42 U.S.C. § 12117 (“The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of [Title VII] shall be [those provided] ... to any person alleging discrimination on the basis of disability in violation of any provision of [the ADA] ... concerning employment.”).

In its recent opinion in Fort Bend Cty., Texas v. Davis, the Supreme Court has summarized the procedures for administrative exhaustion for Title VII claims:

Title VII directs that a charge shall be filed with the EEOC by or on behalf of a person claiming to be aggrieved within 180 days after the alleged unlawful employment practice occurs. For complaints concerning a practice occurring in a State or political subdivision that has a fair employment agency of its own empowered to grant or seek relief, Title VII instructs the complainant to file her charge first with the state or local agency. The complainant then has 300 days following the challenged practice, or 30 days after receiving notice that state or local proceedings have ended, whichever is earlier, to file a charge with the EEOC. If the state or local agency has a “worksharing” agreement with the EEOC, a complainant ordinarily need not file separately with federal and state agencies. She may file her charge with one agency, and that agency will then relay the charge to the other.

139 S. Ct. 1843, 1846 (2019) (internal marks omitted). Significantly, the Civil Rights Division of the Texas Workforce Commission (the “TWC” or, in reference to the Civil Rights Division specifically, the “TWCCRD”) has a worksharing agreement with the EEOC. See Tex. Admin. Code § 819.76. It therefore follows that a plaintiff filing a complaint regarding an employment practice occurring in Texas has 300 days to file a charge with the EEOC under Title VII and the ADA. See also Collier v. Dallas Cty. Hosp. Dist., No. 3:17-CV-3362-D, 2019 WL 2394225, at *5 (N.D. Tex. June 6, 2019), aff’d, 805 F. App’x 306 (5th Cir. 2020) (Fitzwater, S.J.) (“In states such as Texas, which provide a state administrative mechanism to address claims of employment discrimination, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged.” (citations omitted)). In Davis, the Supreme Court also held that:

*4 Title VII’s charge-filing requirement is not of jurisdictional cast. Federal courts exercise jurisdiction over Title VII actions pursuant to 28 U.S.C. § 1331’s grant of general federal-question jurisdiction, and Title VII’s own jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3) (giving federal courts “jurisdiction [over] actions brought under this subchapter”). Separate provisions of Title VII, § 2000e-5(e)(1) and (f)(1), contain the Act’s charge-filing requirement. Those provisions do not speak to a court’s authority or refer in any way to the jurisdiction of the district courts. Instead, Title VII’s charge-filing provisions speak to a party’s procedural obligations.

139 S. Ct. at 1850–51 (emphasis added) (select internal marks omitted).

Here, Plaintiff filed a Charge of Discrimination (the “Charge”) (ECF No. 70-1 at 141) with the EEOC on June 29, 2018. Because Plaintiff was terminated on or around December 1, 2017, Plaintiff’s Charge is well within 300 days of Defendant’s alleged discriminatory practice against him. Therefore, Plaintiff’s Charge is timely.2

Defendant objects to this conclusion on the ground that the Charge is “over 13 ½ [sic] months after the accidental horn honk that occurred on May 15, 2017.” ECF No. 65 at 14. “Therefore, the Court should conclude Plaintiff’s EEOC Charge was late by more than a year and his claims of unlawful discrimination and retaliation pertaining to the horn honk incident in May 2017 should be dismissed.” Id.

However, this objection misunderstands the 300-day deadline. Under the relevant law discussed above, a plaintiff filing a complaint about an unlawful employment practice in Texas has 300 days to file a charge with the EEOC from the date of the alleged practice. In the instant case, the unlawful employment practice alleged by Plaintiff is not the horn-related injury that occurred on May 15, 2017, but rather his termination of employment on or around December 1, 2017. Consequently, Plaintiff filed his Charge in a timely fashion. Because he has exhausted all administrative remedies under Title VII and the ADA and received a statutory notice of a right to sue, ECF No. 70-1 at 160, Plaintiff is permitted to pursue his Title VII and ADA claims in this Court.

2. Administrative Exhaustion under the TCHRA

The TCHRA also addresses employment discrimination and the administrative exhaustion procedures for claims arising under it. Sw. Convenience Stores, LLC v. Mora, 560 S.W.3d 392, 399–400 (Tex. App. 2018). Specifically:

Chapter 21 of the Texas Labor Code [ (the “Act”) ] ... makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. The Act is modeled on federal law and executes the purposes of Title VII of the Civil Rights Act of 1964. Accordingly, we may consider federal law that interprets analogous Title VII provisions. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012) (“[W]e consider the plain terms of the [Labor Code] and our precedent, and look to federal law for guidance only when the relevant provisions of Title VII are analogous.”).

A person claiming a violation of the Act must first exhaust her administrative remedies prior to bringing a civil action. Exhausting administrative remedies is a “mandatory prerequisite” in Texas To bring a lawsuit for unlawful employment practices, a plaintiff must first have filed an administrative charge with the EEOC or the TWC. A plaintiff must file her charge within 180 days of the alleged discriminatory practice and any late-filed charge will be dismissed as untimely. Tex. Lab. Code Ann. §§ 21.201, 21.202. This process affords the opportunity for informal investigation of the allegation while reducing costly litigation. In short, unless and until an employee timely submits her complaint against her employer to the EEOC or TWC in the form of a charge of discrimination, Texas courts are barred from adjudicating that complaint.

*5 Mora, 560 S.W.3d at 399–400 (emphasis added) (select internal marks omitted).

Notably, the deadline for a charge filed under the TCHRA is 180 days from the date of the alleged unlawful employment practice — not 300 days, as is the case for charges filed under Title VII or the ADA. See also Collier, WL 2394225, at *5 (“A complaint under the TCHRA must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.” (internal marks omitted)). Finally, as noted earlier, the Civil Rights Division of the TWC has a worksharing agreement with the EEOC, meaning that a charge filed with the EEOC counts for purposes of the TCHRA.

Here, Plaintiff’s Charge filed with the EEOC counts as a charge filed with the Civil Rights Division of the TWC for the purposes of the TCHRA. However, Plaintiff’s Charge was filed with the EEOC on June 29, 2018 — 210 days after he was terminated by Defendant on December 1, 2017. Because the date of filing exceeds the 180-day deadline under the TCHRA, Plaintiffs Charge was untimely under this statute.

However, Plaintiff argues that the Intake Questionnaire with the EEOC that he signed on December 13, 2017 (the “Intake Questionnaire”) (ECF No. 70-1 at 101-09) qualifies a charge for EEOC purposes — and thus for purposes of the TCHRA. Because December 13, 2017, is well within 180 days of the date of Plaintiff’s termination, Plaintiff’s Intake Questionnaire would qualify as a timely charge for the purposes of the TCHRA. Accordingly, the Court must examine whether the Intake Questionnaire does in fact qualify as a charge.

Regarding what filings count as a charge,

the Supreme Court has held that a questionnaire may qualify as a charge if it satisfies the EEOC’s charge-filing requirements, and if it can be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008).... [E]very circuit (including this one) to have considered whether Holowecki’s holding extends to Title VII and the ADA has determined that it does. Thus, an intake questionnaire asserting claims under the ADA can qualify as a charge if it complies with Holowecki’s minimum standards.

EEOC v. Vantage Energy Servs., Inc., 954 F.3d 749, 753–54 (5th Cir. 2020).

Both the Supreme Court and the Fifth Circuit have held that a plaintiffs intake questionnaire to the EEOC can qualify as a charge under the Holowecki test. See Holowecki, 552 U.S. at 404 (finding that the “[r]espondent’s completed intake form” constituted a charge in part because it “contained all of the information outlined in 29 CFR § 1626.8 ....”); Vantage Energy Servs., Inc., 954 F.3d at 754 (“The next question is whether [former employee] Poston’s intake questionnaire qualified as a charge under the Holowecki test. The EEOC contends that it did, and we agree.”). The Fifth Circuit also has held that checking “Box 2” on an intake questionnaire suffices to request agency action:

*6 The intake questionnaire also satisfies Holowecki’s additional request-to-act condition. Poston checked “Box 2” on the questionnaire, which states “I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above.” This constitutes a clear manifestation of Poston’s intent for the EEOC take remedial action.

Vantage Energy Servs., Inc., 954 F.3d at 755.

Here, Plaintiff’s Intake Questionnaire does not qualify a timely charge. Although Plaintiff checked “Box 2” at the end of his Intake Questionnaire, ECF No. 70-1 at 104, his Intake Questionnaire fails to include “[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices” as required by 29 C.F.R. § 1626.8. Specifically, although Plaintiff describes two other instances of discriminatory conduct occurring on October 29, 2016, ECF No. 70-1 at 102,3 Plaintiff fails to describe the unlawful employment practice that he allegedly suffered on December 1, 2017. At most, Plaintiff describes the horn-related accident on May 15, 2017, in attachments to his Intake Questionnaire. See ECF No. 70-1 at 105–06, 108–09. But this is irrelevant to Plaintiff’s claims. The accident is not the relevant unlawful employment practice — Plaintiff’s termination on December 1, 2017, is.

Consequently, Plaintiff’s Intake Questionnaire cannot qualify as a charge with the EEOC and thus does not constitute a timely charge under the TCHRA. Because Plaintiff has failed to exhaust his administrative remedies under the TCHRA, this Court cannot adjudicate Plaintiff’s TCHRA claim of disparate treatment and retaliation. This fact alone is sufficient reason for this Court to grant Defendant’s Motion for Summary Judgment with respect to Plaintiffs TCHRA claim. However, as subsequent sections of this Memorandum Opinion and Order will show, Plaintiff’s TCHRA claim fails to survive summary judgment even on its merits. Accordingly, the Court will analyze Plaintiff’s TCHRA claim in the sections below for the sake of completeness.

B. Disparate Treatment under the Texas Labor Code and the ADA

Disparate treatment is “the most easily understood type of discrimination.” Int’l Broth. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). “In a discriminatory-termination action under the ADA, the [plaintiff] may either present direct evidence that [he] was discriminated against because of [his] disability or alternatively proceed under the burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014) (citing Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245 (5th Cir. 2013)). Because Plaintiff has presented no direct evidence of discrimination, the Court’s analysis will be limited to the McDonnell Douglas method.

To establish a prima facie case, “a plaintiff must prove: (1) that he has a disability; (2) that he was qualified for the job; and (3) that he was subject to an adverse employment decision on account of his disability.” Id. at 695 (quoting Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)). “Under the ADA, ‘discrimination need not be the sole reason for the adverse employment decision, [but] must actually play a role in the employer’s decision making process and have a determinative influence on the outcome.’ ” Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (quoting Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 503–04 (5th Cir. 2002)).

*7 If a plaintiff establishes a prima facie case of discrimination, then the “burden shifts to the employer to articulate legitimate, nondiscriminatory reason for its employment action.” Raytheon Co. v. Hernandez, 540 U.S. 44, 50 (2003) (citing McDonnell Douglas, 411 U.S. at 802). If the employer meets this burden, the presumption of intentional discrimination disappears. Id. at 49 n.3. But a plaintiff must “offer sufficient evidence to create a genuine issue of material fact either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another motivating factor is the plaintiff’s protected characteristic (mixed-motive[s] alternative).” LHC Grp., 773 F.3d at 702 (citing Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).

In response to a motion for summary judgment, an employee must present “substantial evidence” that the employer’s legitimate, nondiscriminatory reason for termination is pretextual. 798 F.3d 222, 233 (5th Cir. 2015) (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). Pretext is established “either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or ‘unworthy of credence.’ ” Delavel v. PTech Drilling Tubulars, 824 F.3d 476, 480 (5th Cir. 2016) (quoting Laxton, 333 F.3d at 578).

1. “Disabled” within the Meaning of the ADA and Texas Labor Code

Defendant first argues that Plaintiff’s claims for disparate treatment fail because he has not established that he is disabled or is regarded as disabled under the ADA and the Texas Labor Code. ECF No. 65 at 15. Specifically, Defendant alleges that Plaintiff has made no showing that the horn-related accident affected his major life activity of working. Id. This is in reference to the ADA’s definition of “disability,” which with respect to an individual means “a physical or mental impairment that substantially limits one or more major life activities of such individual” under 42 U.S.C. § 12102(1)(A).

The EEOC has issued detailed regulations regarding the definition of “disability” under the ADA:

Physical or mental impairment means—

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.

29 C.F.R. § 1630.2(h) (emphasis added).

The term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ‘ Substantially limits’ is not meant to be a demanding standard. ... An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

29 C.F.R. § 1630.2(j) (emphasis added). Major life activities include, but are not limited to:

Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working....

29 C.F.R. § 1630.2(i) (emphasis added).

Here, Plaintiff claims in his Second Amended Complaint that “he was and continues to be treated for a ruptured ear drum, permanent hearing loss, requiring a hearing aid for life, dizziness and a variety of other neurological injuries.” ECF No. 60 at 5. In response, Defendant argues that Plaintiff’s loss of hearing has not affected his major life activity of working. ECF No. 65 at 20–21. However, working is only one of the enumerated activities that may constitute a major life activity. Thus, whether Plaintiff’s accident has substantially limited his ability to work or has resulted in the need for accommodations at work is not dispositive.

*8 Next, Defendant cites a string of cases, including Carothers v. County of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015), to show that Plaintiff still must demonstrate his impairment limits his ability to perform a class of jobs or broad range of jobs. ECF No. 72 at 8. However, this rule is not relevant here. This is because Plaintiff has not alleged that his substantially limited major life activity is specifically his ability to work. This stands in stark contrast to the plaintiff in Carothers. See Carothers, 808 F.3d at 1147 (“if ‘working’ is the only major life activity [plaintiff] claims is impaired, then she has to show that her [impairment] ‘significantly restricted [her] ability to perform either a class of jobs or a broad range of jobs’ ”) (quoting Povey v. City of Jeffersonville, Ind., 697 F.3d 619, 623 (7th Cir. 2012)). Viewed in a light most favorable to Plaintiff, the record reflects that the major life activity that has been substantially limited by the accident is in fact his hearing, which is one of the enumerated activities listed in 29 C.F.R. § 1630.2(i).

Because Plaintiff claims he has suffered a loss of hearing, the relevant inquiry is whether Plaintiff’s hearing is substantially limited pursuant to the language in 42 U.S.C. § 12102(1)(A). Defendant argues that “Plaintiff has provided no evidence that his hearing impairment substantially limits his hearing compared to most people in the general population, nor did Plaintiff present evidence about the ameliorative effects of any hearing aids available or used by him to correct his hearing.” ECF No. 72 at 9.

However, the Court is not persuaded for two reasons. First, “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” 29 C.F.R. § 1630.2(j)(vi). Hearing aids, like what Plaintiff uses, are listed as a mitigating measure under the regulations. 29 C.F.R. § 1630.2(j)(5)(i). Second, this Court sees no reason why permanent hearing loss requiring a hearing aid for life is not at least some evidence of his hearing being substantially limited compared to most people in the general population. As further evidence, Plaintiff states in his response to Defendant’s Motion for Summary Judgment that he has suffered a thirty-three percent loss of hearing. ECF No. 69 at 25.

Because the substantial limitation inquiry is not meant to be demanding, the Court FINDS that Plaintiff has alleged sufficient facts to show that his hearing is substantially limited, and therefore FINDS that Plaintiff has made a sufficient showing that he is disabled under the ADA.

The Court next addresses Defendant’s argument that Plaintiff has not established that he is disabled under the Texas Labor Code, which adopts the same definition as the ADA:

‘Disability’ means, with respect to an individual, a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such an impairment, or being regarded as having such an impairment.

Tex. Lab. Code Ann. § 21.002(6); see also 40 Tex. Admin. Code § 819.11(5) (“Disability --A mental or physical impairment that substantially limits at least one major life activity of an individual, a record of such mental or physical impairment, or being regarded as having such an impairment as set forth in § 3(2) of the Americans with Disabilities Act of 1990, as amended, and Texas Labor Code § 21.002(6).”). “Because TCHRA ‘parallels the language of the [ADA]’, Texas courts follow ADA law in evaluating TCHRA discrimination claims.” Williams v. Tarrant Cty. Coll. Dist., 717 Fed. Appx. 440, 444–45 (5th Cir. 2018) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 285–87 (5th Cir. 2004)).

The Court has found that Plaintiff has made a sufficient showing that he is disabled under the ADA. Therefore, the Court also FINDS that Plaintiff has made a sufficient showing that he is disabled under the Texas Labor Code.

2. Whether Plaintiff Was Qualified for the Job

*9 Having shown that he is disabled, Plaintiff must also show that he was qualified for the job as a firefighter. “The plaintiff bears the burden of proving that an available position exists that he was qualified for and could, with reasonable accommodations, perform.” Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315–16 (5th Cir. 2007) (citing Forman v. Babcock & Wilcox Co., 117 F.3d 800, 810 n.14 (5th Cir. 1997)); see also 42 U.S.C. § 12111(8) (“The term ‘qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”). “A plaintiff can establish that he is qualified by showing that either (1) he could perform the essential functions of the job in spite of his disability, or (2) that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job.” Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2020) (cleaned up) (quoting LHC Grp., 773 F.3d at 697).

“Essential functions” are “fundamental” as opposed to “marginal” job duties. 29 C.F.R. § 1630.2(n)(l). A job function may be considered essential for several reasons, such as “the position exist[ing] to perform that function”; because of “a limited number of employees available” to perform the function, or the function being “so highly specialized that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.” 29 C.F.R. § 1630.2(n)(2). “Fact-finders must determine whether a function is ‘essential’ on a case-by-case basis.” Credeur v. Louisiana Through Off. of the Att’y Gen., 860 F.3d 785 (5th Cir. 2017) (quoting LHC Grp., 773 F.3d at 698). The EEOC has listed seven non-exhaustive factors to guide the essential-function inquiry:

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3). The Fifth Circuit also has addressed whether an individual is qualified under 42 U.S.C. § 12111(8) in many cases. See, e.g., Clarkv. Champion Nat’l Sec., Inc., 952 F.3d 570, 582 (5th Cir. 2020) (finding that a diabetic who suffered a diabetic-induced loss of consciousness at work was unable to perform essential functions of the job); Gonzalez v. United Parcel Serv., 777 Fed. Appx. 735, 738 (5th Cir. 2019) (finding that a plaintiff was unqualified for a desk job because he could not work more than four hours a day and had difficulty making repetitive arm, hand, and wrist movements); Credeur, 860 F.3d at 795 (5th Cir. 2017) (finding that a litigation attorney was unqualified because she could not maintain regular work-site attendance); Spencer v. KS Mgmt. Serv., L.L.C., 680 Fed. Appx. 311, 314 (5th Cir. 2017) (finding that a medical assistant was unqualified because she could not pass a test covering medications and vaccinations).

Here, nothing in the record suggests that Plaintiff requested or required any kind of accommodation. Furthermore, there is no evidence that he was unable to perform any of the physical demands that the job requires or that the use of a hearing aid would impair his ability to perform the essential functions of the job. Moreover, Plaintiff was given a full release back to work on November 27, 2017, under the expectation that he would perform those essential functions. ECF No. 69 at 21.

Defendant argues that Plaintiff “failed to demonstrate that he could perform the functions of the job as a preliminary matter” when he refused to sign an acknowledgment of receipt of the packet of employment policies. ECF No. 72 at 13. It is true that among the factors listed in 29 C.F.R. § 1630.2(n)(3), courts should give the greatest weight to an employer’s judgment on essential functions of a job. Credeur, 860 F.3d at 792. However, “courts should not give blind deference to an employer’s judgment, but should instead evaluate the employer’s words alongside its policies and practices.” Id. at 794 (citing Ford Motor Co., 782 F.3d 753, 765–66 (6th Cir. 2015)). Accordingly, this Court can simply not accept that “signing a packet” is an essential function of a firefighter and that Plaintiff rendered himself unqualified for the job by declining to sign it until he could review it with his lawyer.

3. Defendant’s Reason for Taking an Adverse Employment Action

*10 There is no dispute among the parties that termination is an adverse employment action. See LHC Grp., 773 F.3d at 700 (“[Plaintiff] suffered an adverse employment action-namely, termination”) (citing 42 U.S.C. § 12112(a)). Plaintiff alleges that the adverse employment action taken against him was his termination occurring two days after his release to full duty. ECF No. 69 at 25. In response, Defendant argues that Plaintiff has presented no evidence that any alleged disability was a motivating factor for his termination to prove his prima facie case. ECF No 72. At 11. Defendant also argues that even assuming otherwise, it has articulated a legitimate, nondiscriminatory reason for terminating Plaintiff’s employment by alleging three instances of Plaintiff’s insubordinate and disruptive behavior. ECF No. 65 at 18.

Plaintiff offers no evidence showing that his termination was influenced by a loss of hearing to begin with. He has presented no direct evidence of discrimination and no evidence that his hearing disability was even a motivating factor. While he has alleged that he suffered harassment and bullying in the past, these incidents occurred before he became disabled. ECF No. 60 at 2–3. After he became disabled, he spent most of that time on leave and the rest on light duty. Id. at 6–7. Plaintiff argues that the Court should infer discrimination from Defendant’s conduct. However, this conduct could have occurred either for the reasons given by Defendant or even for reasons that might support Plaintiff’s claims under Title VII.

Because Plaintiff has not shown that his disability played a role in Defendant’s decision to terminate his employment, the Court FINDS that Plaintiff has failed to make a prima facie showing of disparate treatment under the ADA. Accordingly, Defendant’s Motion for Summary Judgment is GRANTED with respect to Plaintiff’s ADA claim.

C. Retaliation under the Texas Labor Code, Title VII, and the ADA

Title VII and the Texas Labor Code both prohibit employers from retaliation against employees engaged in protected activities. See 42 U.S.C § 2000e-3(a) (2005); Tex. Lab. Code Ann. § 21.055. “In a retaliation case, the plaintiff must first make a prima facie showing: (1) that he is engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that a causal link existed between the protected activity and the adverse action.” Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004) (citing Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)); see also Univ. of Tex., Sw. Med. Ctr. v. Nascar, 570 U.S. 333, 360 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened [motivating factor] causation test stated in § 2000e–2(m).”) A plaintiff has engaged in protected activity if he has “opposed any practice made an unlawful employment practice” or “made a charge, testified, or participated in an investigation proceeding or hearing.” 42 U.S.C § 2000e-3(a). Retaliation claims under both federal and state law utilize the same Title VII framework. See Wallace v. Seton Fam. of Hosps., 777 Fed. Appx. 83, 90 (5th Cir. 2019).

Plaintiff’s claims of retaliation under the ADA mirror his claims under the Texas Labor Code and Title VII. Specifically, Plaintiff claims that he engaged in protected conduct when he opposed Defendant’s unlawful employment practices and when he filed a complaint with the EEOC and the TWCCRD. ECF No. 60 at 12. The legal analysis is also the same. See Feist v. Louisiana, Dept. of Justice, Off. of the Att’y. Gen., 730 F.3d 450 (5th Cir. 2013) (“To establish a prima facie case of retaliation under the ADA or Title VII, a plaintiff must show that (1) she participated in an activity protected under the statute; (2) her employer took an adverse employment action against her; and (3) a causal connection exists between the protected activity and the adverse action.”).

*11 The ADA also provides the same definition of “protected activity” as that under Title VII. See 42 § U.S.C. 12203(a) (“No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter”). Unlike the requirements for establishing a case of disparate treatment under the ADA, a plaintiff does not need to show that he suffers from an actual disability; rather, he only needs “a reasonable, good faith belief that the statute has been violated.” Tabatchnik v. Cont’l Airlines, 262 Fed. Appx. 674, 676 (5th Cir. 2008) (quoting Selenke v. Med. Imaging of Colorado, 248 F.3d 1249, 1264 (10th Cir. 2001)). Plaintiff easily satisfies this requirement, as this Court has already determined that he has a disability under the ADA. Supra at 15.

1. Protected Activity

“To satisfy the ‘opposition clause,’ [a plaintiff] need not prove that [the defendant’s] practices were actually unlawful, but only that he had ‘a reasonable belief that the employer was engaged in unlawful employment practices.’ ” Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000) (quoting Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981)). Plaintiff claims that he engaged in protected activity when he opposed Defendant’s alleged unlawful employment practices and when he prepared and filed an administrative complaint with the EEOC and the TWCCRD. ECF No. 60 at 10.

Regarding the first claim, Plaintiff complained to his supervisors and followed up with a formal grievance including allegations of willful negligence and intentional act to cause harm. See ECF Nos. 69 at 22, 60 at 5. However, the Fifth Circuit has held that “[a]n employee’s complaint to her employer that is vague, without any reference to an unlawful employment practice under Title VII, does not constitute protected activity.” Jenkins v. Louisiana Workforce Comm’n, 713 F. Appx. 242, 246 (5th Cir. 2017) (quoting Paske v. Fitzgerald, 785 F.3d 977, 986 (5th Cir. 2015)). For example, in Jenkins, the Fifth Circuit reasoned that while the plaintiff was African American and the other parties are white, her complaint made no allegation that her grievance was opposing or protesting racial or sexual discrimination. Id. In the instant case, while Plaintiff alleges that he informally complained about harassment and prohibited gambling in 2016, Plaintiff’s Second Amended Complaint only specifies that his May 15, 2017 grievance pertained to “willful negligence and intentional act to cause harm to another firefighter” related to the horn-related accident. ECF No. 60 at 5. Because this grievance did not reference unlawful employment practices under Title VII, Plaintiff’s grievance does not constitute protected activity within the meaning of Title VII. Similarly, Plaintiff’s grievance does not constitute protected activity within the meaning of § 21.055 of the Texas Labor Code or 42 § U.S.C. 12203(a).

Plaintiff also argues that his filing of the EEOC and TWCCRD claims constitutes protected action. ECF No. 60 at 10. But the Fifth Circuit has held that post-termination filings are not protected actions. See Castlino v. Thomas, 141 Fed. App’x 255, 257 (5th Cir. 2005) (“[Plaintiff] also alleges that he was terminated in retaliation for filing an EEOC discrimination charge. This claim is without merit since the EEOC charge was filed after [plaintiff] had been terminated by the [defendant]”). However, this case is arguably distinguishable from Castlino. This is because while Plaintiff did not actually file the complaint until December 15, 2017 — two weeks after he was fired — he provided notice to Defendant in mid-September of 2017 of the charge of discrimination that he was prepared to file, notice of his retention of counsel, and an invitation to engage in pre-filing discussions. ECF No. 60 at 6, 7.

*12 Some jurisdictions have held or suggested that notice of intent to file a charge also constitutes protected activity. See, e.g., Moore v. Castro, 192 F. Supp. 3d 18, 44 (D.D.C. June 17, 2016); Elwakin v. Target Media Partners Operating Co. LLC, 901 F. Supp. 2d 730, 759 (E.D. La. Oct. 9, 2012) (where the district court reasoned that the defendant could not have retaliated because there was no indication that the plaintiff had threatened to file a charge during the course of her employment); Smith v. R.R. Donnelley and Sons Co., No. 10–1417, 2011 WL 4346340 (E.D. Pa. Sept. 16, 2011); EEOC v. Eagle Mgmt. Grp., No. 1:05–CV–1215–WBH/AJB, 2006 WL 8435746, at *8 (N.D. Ga. Sept. 18, 2006); Williams v. Dictaphone Corp., 112 F. Supp. 2d 267, 277–78 (W.D.N.Y. Sept. 16, 2000). While Smith addressed the issue of a notice of intent to file a workers’ compensation claim, this Court finds its underlying reasoning persuasive and applicable to the instant case:

[I]t is the reporting of the work-related injury in conjunction with the employee’s expression of intent to file a workers compensation claim that is enough to trigger the protection afforded by the Act. This stands to reason because, without question, the internal reporting of a workplace injury to the employer is the first step in pursuing a workers’ compensation remedy. A contrary conclusion limiting the definition of protected activity to only the filing of a claim would frustrate the Act by giving employers a window to escape liability by beating an injured employee to the punch. That is, an employer who had been notified that an employee has been injured on the job and knows of the injured employee’s intent to file a workers compensation claim, if the employer is the first to act, may terminate the injured employee before that employee reasonably has the opportunity to actually the claim documents.

2011 WL 4346340, at *6. Similarly, a rule which would permit employers to retaliate against employees after giving a notice of intent to file a charge would frustrate the purposes of Title VII and its progeny by allowing employers to terminate the employees and beat them to the punch before they actually file.

The limited Fifth Circuit case law on the issue also indicates that a notice of intent to file is protected activity. In Jefferies v. Harris Cty. Cmty. Action Ass’n, the plaintiff argued that she was fired in retaliation for filing an EEOC charge. 615 F.2d 1025, 1035 (5th Cir. 1980). The district court found that the defendant could not have received notice of the filing of the charge until well after the decision was made to terminate her employment. Id. The Fifth Circuit could not consider this to be harmless error because the record indicated that the plaintiff had alerted the defendant of her intent to file the charge. Id. After remand, the Fifth Circuit affirmed the district court’s decision that while the defendant had knowledge that the plaintiff had filed an EEOC complaint prior to her discharge, “the evidence showed that she was in fact discharged for ... a legitimate and non-pretextual reason.” Jefferies v. Harris Cty. Cmty. Action Ass’n, 693 F.2d 589, 591 (5th Cir. 1982). Notably, on facts similar to this case, the plaintiff’s notice of intent was sufficient for the burden to then shift to the defendant under the McDonnell Douglas test.

Here, while Defendant claims it never received notice from the EEOC or the TWCCRD that Plaintiff filed a charge until after his termination, it does not deny that Plaintiff had provided notice of his intent to file. ECF No. 65 at 29. Given the above reasoning, this Court holds that Plaintiff engaged in protected activity when he gave Defendant notice of his intent to file charges under the EEOC and the TWCCRD.

2. Causal Connection

*13 Even if the activity Plaintiff engaged in was protected, Plaintiff must provide sufficient evidence to show a causal nexus between his protected activity and his termination. “To establish a causal connection, a plaintiff must first show that the decision maker was aware of the protected activity.” McLaurin v. City of Jackson Fire Dept., 217 Fed. Appx. 287, 288 (5th Cir. 2006) (citing Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003)). This element is satisfied because Defendant had notice of Plaintiff’s intent to file charges.

“[T]he mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough” to prove a connection between the protected activity and the adverse employment action. Roberson v. Alltell Information Servs., 373 F.3d 647, 655 (5th Cir. 2004) (quoting Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 n.3 (5th Cir. 1997)). However, “[c]lose timing between an employee’s protected activity and an adverse action against him may provide the ‘causal connection’ required to make out a prima facie case of retaliation.” Swanson, 110 F.3d at 1180 (quoting Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)).

Moreover, “a time lapse of up to four months has been found sufficient to satisfy the causal connection for summary judgment purposes.” Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (quoting Weeks v. NationsBank, N.A., No. CIV.A.3:98–CV–1352M, 2000 WL 341257, at *3 (N.D. Tex. Mar. 30, 2000)). However, close temporal proximity, without more, is insufficient to show causation. See McDowell v. Home Depot USA, Inc., 126 Fed. Appx. 168, 170 (5th Cir. 2005) (citing Swanson, 110 F.3d at 1188). Such evidence could include “an employment record that does not support dismissal, or an employer’s departure from typical policies and procedures.” Feist, 730 F.3d at 450 (citing Schroeder v. Greater New Orleans Fed. Credit Union, 664 F.3d 1016, 1024 (5th Cir. 2011)).

Here, Defendant argues that the causal connection between Plaintiff’s complaints and grievance and his termination is cast into doubt by the fact that his first complaint was in 2016 and he did not file a formal grievance until mid-May of 2017. ECF No. 65 at 25. However persuasive that may be, the same cannot be said about the timing between Defendant being put on notice of Plaintiffs intent to file with the EEOC and the TWCCRD and Plaintiff’s termination. Plaintiff gave his notice in mid-September of 2017 and was terminated on November 30, 2017. See Nos. 60 at 6–7, 65 at 5. Because these events occurred within three months of each other, they are close enough in proximity under Fifth Circuit precedent to help establish a causal connection for summary judgment purposes.

As noted, this by itself is not sufficient to satisfy the causal requirement without other evidence of retaliation. In his Second Amended Complaint, Plaintiff stated that he had been an employee of the Fire Department since 1994, served “with distinction and without reprimand,” and obtained numerous specializations during that time. ECF No. 60 at 2. A service record of 23 years with distinction and without reprimand which includes many specializations is “an employment record that does not support dismissal” by any standard. However, Defendant disputes this record, alleging three instances of insubordination in November of 2017. But viewed in a light most favorable to Plaintiff, the Court FINDS that Plaintiff’s employment record for the 23 years prior to his final month of employment and the close temporal proximity between his notice of intent to file an EEOC claim and his termination satisfies the causal requirement to survive summary judgment.

3. Defendant’s Reason for Terminating Plaintiff

*14 The McDonnell Douglas burden shift applies to retaliation claims under both the ADA and Title VII. See Tabatchnik, 262 Fed. Appx. at 676 (“If the plaintiff establishes a prima facie case [under the ADA], the defendant must come forward with a legitimate, non-discriminatory reason for the adverse employment action. If such a reason is provided, the plaintiff must submit sufficient evidence that the proffered reason is a pretext for retaliation. The employee must show that but for the protected activity, the adverse employment action would not have occurred.” (citations omitted)); Dickerson v. Metro. Dade County, 659 F.2d 574, 580 (5th Cir. 1981) (“The complainant in a Title VII action bears the initial burden of establishing a prima facie case of retaliatory conduct. The burden of production then shifts to the employer to articulate some legitimate nondiscriminatory reason for terminating the employee.” (citations omitted)). In Aldrup v. Caldera, the Fifth Circuit held that the “failure of a subordinate to follow a direct order of a supervisor is a legitimate nondiscriminatory reason for taking adverse employment action.” 274 F.3d 282, 288 (5th Cir. 2001) (citing Chaney v. New Orleans Pub. Facility Mgmt., 179 F.3d 164, 167 (5th Cir. 1999)).

“If the employer articulates a legitimate nondiscriminatory reason for termination, the burden shifts back to the plaintiff to show that that articulated reason was pretextual. Dickerson, 659 F.2d at 580. A plaintiff cannot establish pretext “even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.” Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274 (6th Cir. 2012) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998)). The relevant question for the purposes of a pretext analysis is whether a defendant’s actions were based on an honest belief. See Leibforth v. Belvidere Nat’l Bank, 337 F.3d 931, 934 (7th Cir. 2003); Moody v. M. W. Kellogg Co., No. 98-20757, 1999 WL 153032, at *6 n.16 (5th Cir. 1999).

Here, Defendant claims that it had a legitimate nondiscriminatory reason in taking an adverse employment action. Specifically, it alleges Plaintiff was insubordinate in his refusal to sign documents, his refusal to leave the station following his being placed on leave, and his refusal to meet with the Fire Chief to discuss the prior two allegations of insubordination. See ECF Nos. 72 at 10, 65 at 18–19. Because Defendant has articulated a legitimate nondiscriminatory reason for terminating Plaintiff’s employment, the burden then shifts back to the Plaintiff to show that Defendant’s given reasons are mere pretext.

Much of the parties’ arguments relate to the “packet incident” which occurred roughly three days after Plaintiff’s return for light-duty. ECF No. 60 at 6. Plaintiff argues that he did not refuse to sign the documents but rather only requested the opportunity to read and review them with his attorney, and that Defendant’s assertion is contradicted by others who were present. Id.; see also ECF No. 69 at 21. Plaintiff further states that he was not being insubordinate by entering the station a couple of days later because he received permission to enter the station to check his e-mail account. Id. at 7.

However, although Plaintiff argues that he was not being insubordinate, the relevant question is whether Defendant honestly believed he was. Plaintiff has shown no evidence that that was not the case. Similarly, Plaintiff has presented no evidence that Defendant’s “slow walking” of his complaint and its fraud complaint filed against him were done in bad faith. ECF No. 69 at 25-26. Furthermore, Plaintiff’s assertion that his conduct “should be seen through the facts which would frustrate any reasonable person” is evidence that Defendant honestly believed he was being insubordinate. ECF No. 69 at 23. Thus, it appears that there is no genuine issue of material fact regarding these instances of Plaintiff’s conduct. Rather, there is only a difference in how the parties interpreted these events.

*15 Plaintiff also argues that Defendant’s assertion that the packet incident rendered him unqualified to return to his job after 23 years of service supported by exemplary evaluations “strains credulity” and amounts to pretext. ECF No. 69 at 21. Perhaps most importantly, Plaintiff implies that that his termination had nothing to do with the prior two instances of alleged insubordination because he was given a full release back to work on November 27, 2017. Id. Yet, Defendant terminated his employment a few days later. Id.

Taking these claims as true, this Court finds these arguments more persuasive. However, Plaintiff does not deny Defendant’s allegation that he failed to appear for a meeting at City Hall on November 29, 2017,4 with the Fire Chief to discuss Plaintiff’s conduct, thus resulting in a third and final allegation of insubordination which supports the adverse employment action.5 Because Plaintiff’s termination after three acts of insubordination is consistent with the facts and ruling in Aldrup, Defendant had a sufficient nondiscriminatory reason for his removal. 274 F.3d at 288 (“Given the wide discretion granted to administrative agencies in disciplining their employees, removal after three instances of insubordination [is] not arbitrary and capricious”). Moreover, the reasoning in Aldrup implies that even one act of insubordination is sufficient for termination. This is because insubordination is a sufficient reason for taking an adverse employment action, and termination is an adverse employment action. See Sosa v. Coastal Corp., No. 02-40639, 2002 WL 31933068, at *3 (5th Cir. 2002) (where the defendant had a legitimate nondiscriminatory reason for terminating the plaintiff after only one act of insubordination). Like the plaintiff in Sosa, Plaintiff has offered no evidence that Defendant’s “explanation was false, let alone pretextual.” Id.

Plaintiff therefore has failed to show that Defendant’s articulated reasons for his termination were pretextual. Consequently, Defendant’s Motion for Summary Judgment is GRANTED with respect to Plaintiff’s retaliation claims under Title VII.

D. Violations under the FMLA

The FMLA makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of” an employee’s FMLA rights. Downey v. Strain, 510 F.3d 534, 537 (5th Cir. 2007) (quoting 29 U.S.C. § 2615(a)(1)). 29 U.S.C. § 2617(a)(1) provides consequential damages and appropriate equitable relief against employers who violate § 2615. Appropriate equitable relief for FMLA claims may include injunctive relief. See, e.g., Crugher v. Prelesnik, 761 F.3d 610, 615 (6th Cir. 2014).

“For an employee to establish a prima facie FMLA interference claim, the employee must show: (1) he was an eligible employee; (2) his employer was subject to FMLA requirements; (3) he was entitled to leave; (4) he gave proper notice of his intention to take FMLA leave; and (5) his employer denied him the benefits to which he was entitled under the FMLA.” Devoss v. Sw. Airlines Co., 903 F.3d 487, 490 (5th Cir. 2018) (internal quotation marks omitted) (quoting Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017)). “To recover under the FMLA for failure to provide individualized notice, a plaintiff must show that the employer failed to comply with the notice requirement and that this noncompliance impaired the plaintiff’s ability to exercise her rights under the FMLA, causing prejudice.” Bernard v. Bishop Noland Episcopal Day Sch., 630 Fed. Appx. 239 (5th Cir. 2015) (citing Downey, 510 F.3d at 541). Courts evaluating an FMLA claim must conduct a “retrospective, case-by-case examination” that addresses “whether the employee would have exercised his or her FMLA rights in the absence of the employer’s actions. Downey, 510 F.3d at 540 (quoting Ragsdale v. World Wide, Inc., 535 U.S. 81, 90 (2002)).

*16 Here, Plaintiff alleges that Defendant unlawfully and discriminatorily interfered with his rights under the FMLA. ECF No. 60 at 11. Specifically, Plaintiff alleges that Defendant failed to comply with the FMLA’s notice requirements and by doing so interfered with his potential exercise of those rights. ECF No. 69 at 27. Plaintiff also alleges that Defendant failed to reinstate his employment and violated the FMLA by terminating his employment. ECF No. 60 at 11. In response, Defendant first argues that this Court should reject Plaintiff’s claims on the basis that Plaintiff’s alleged FMLA rights were preempted by two Texas statutes. ECF No. 65 at 15. Therefore, this Court must first address this argument before it reaches Plaintiff’s specific allegations.

1. FMLA Preemption

Defendant claims that since the Texas Workers Compensation Act (the “TWCA”) and the Texas Civil Service Act (the “CSA”) provide the Plaintiff greater leave rights than the FMLA and that Plaintiff is only pursuing his claim that Defendant interfered with his rights under the FMLA, Defendant could not have interfered with Plaintiff’s FMLA rights because those rights were preempted by state law. Id. Defendant cites 29 U.S.C. § 2651(b), which states that “[n]othing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act.” ECF No. 65 at 15. Defendant also cites a 2005 advisory opinion from the Department of Labor concluding from the FMLA’s legislative history that Congress intended to protect more generous state laws from preemption by the FMLA. Id. at 12.

However, even granting that the relevant state law is more generous than the FMLA, it does not follow that the state law necessarily preempts the FMLA. In logical terms, it is a fallacy to infer the inverse from a conditional statement. For example, it does not necessarily follow from the statement “if Socrates is a man, then Socrates is not immortal” that “if Socrates is not a man, then Socrates is immortal.” Similarly, it does not necessarily follow from the statement “if the federal law preempts state law, then the state law does not preempt the federal law” that “if the federal law does not preempt the state law, then the state law preempts the federal law.” Nothing in the cited statute implies that more generous state laws preempt the FMLA, and the Defendant fails to cite any existing case law that says otherwise.

Moreover, the definition of “preemption” suggests that state laws cannot preempt federal laws. For our purposes, “preemption” is defined as the “principle (derived from the Supremacy Clause) that a federal law can supersede or supplant any inconsistent state law or regulation.” PREEMPTION, BLACK’S LAW DICTIONARY (11th ed. 2019); see also Bedoya v. Am. Eagle Express Inc., 914 F.3d 812, 817 (3d. Cir. 2019) (“The preemption doctrine stems from the Supremacy Clause, which provides that ‘the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Thus, ‘Congress ... has the power to preempt state law.’ There are three categories of preemption: field preemption, conflict preemption, and express preemption” (citations omitted)).

To illustrate how the state and federal laws interact with each other, 29 C.F.R. § 825.701(a)(1) gives the following example:

If State law provides 16 weeks of leave entitlement over two years, an employee needing leave due to his or her own serious health condition would be entitled to take 16 weeks one year under State law and 12 weeks the next year under FMLA. Health benefits maintenance under FMLA would be applicable only to the first 12 weeks of leave entitlement each year. If the employee took 12 weeks the first year, the employee would be entitled to a maximum of 12 weeks the second year under FMLA (not 16 weeks). An employee would not be entitled to 28 weeks in one year.

*17 In this example, the hypothetical state law is less generous than the FMLA in the sense that it would allow only 16 weeks of leave over two years rather than the FMLA’s 12 weeks per year. However, it is more generous in the sense that it would allow the employee to take those 16 weeks of leave in one year while still retaining the FMLA’s 12-week entitlement for the following year. This would result in 28 weeks of leave over two years instead of 24. In the first year where the employee takes 16 weeks of leave, the FMLA health benefits maintenance would still be applicable during the first 12 weeks and not be preempted by the state law. This example makes it clear that more generous state laws do not preempt the FMLA but rather only affect how those rights interact with each other. See also HRS-CB § 47:40 (“If an employer is subject to both the FMLA and another leave law, it must comply with the provisions that provide the greatest level of protection to employees”).

Furthermore, even if state law could preempt federal law, family or medical leave is distinguishable from workers’ compensation. For example, the FMLA entitles eligible employees to a total of 12 weeks of leave for reasons such as “the birth of a son or daughter,” “the placement of a son or daughter with the employee for adoption or foster care,” to care for “the spouse, or son, daughter, or parent of the employee if such spouse, son, daughter, or parent has a serious health condition,” or because of “a serious health condition that makes the employee unable to perform.” 29 U.S.C. § 2612(a)(1).

The CSA leave that Defendant cites applies only to police officers and firefighters — and only to those who are injured in the line of duty. Tex. Loc. Gov’t Code Ann. § 143.073(c) (emphasis added). Defendant tries to cast this as more as more like the FMLA by referring to those protected under § 143.073(c) as “civil service employees.” ECF. No. 60 at 11. Yet, it is clear the relevant state and federal laws were enacted for different groups and for different reasons. The FMLA regulations also anticipate that FMLA leave, which is generally unpaid, may in some circumstances be used to supplement workers’ compensation leave. See 29 C.F.R. § 207(e) (noting how FMLA leave may be substituted for accrued paid leave and used to supplement workers’ compensation benefits, such as in cases where the workers’ compensation only provides an employee two-thirds of their salary).

Defendant has also not shown that the CSA is more generous than the FMLA in its notice requirements or in its remedies. Compare 29 U.S.C. § 2617 (entitling an eligible employee to lost wages with interest, lost employment benefits, and appropriate equitable relief such as promotion), with Tex. Lab. Code Ann. § 451.002 (entitling an eligible employee only to reinstatement and “reasonable damages”). It is true that the relevant section of the CSA provides up to a year of fully paid leave of absence rather than 12 weeks. However, it is unclear from Defendant’s motion why the length of leave and whether it is paid or unpaid should be dispositive as to whether the CSA is more generous than the FMLA. Plaintiff’s argument that Defendant violated the FMLA is specifically that Defendant allegedly failed to provide the required notice of his rights for the purpose of interfering with those rights. ECF No. 60 at 11. Hence, Defendant’s cited provisions of the state law being more generous by granting longer, fully paid leave are not especially relevant. It is equally unclear as to whether portions of the CSA and the TWCA can be amalgamated together to become greater than or more generous than the FMLA to support Defendant’s preemption argument.

In sum, the CSA and the TWCA are more generous than the FMLA in some respects but not in others. However, they are not more generous in any relevant manner. And even if the state law is more generous than the FMLA, the appropriate or applicable provisions of the FMLA are still not preempted by state law. Instead, the state law only affects how the state and federal laws interact with each other to allow for the greatest level of entitlements permitted by the regulations. The state law does not preempt the FMLA altogether to prevent Plaintiff from pursuing FMLA claims.

2. FMLA Notice

*18 To establish a prima facie FMLA interference claim, Plaintiff must show that “he gave proper notice of his intention to take FMLA leave.” Devoss, 903 F.3d at 490. “When an employee requests FMLA leave, or when an employer acquires knowledge that an employee’s leave may be for an FMLA–qualifying reason, the employer must notify the employee of his eligibility.” 29 C.F.R. § 825.300(b)(1) (emphasis added). The employer is “responsible in all circumstances for designating leave as FMLA–qualifying, and for giving notice of the designation to the employee as provided in this section.” 29 C.F.R. § 825.300(d)(1).

The Fifth Circuit has held that these individualized notice regulations “are not arbitrary, capricious, or manifestly contrary to the FMLA and are valid.” Downey, 510 F.3d at 542; see also Ragsdale, 535 U.S. at 88 (“According to the Secretary [of Labor], the more comprehensive and individualized notice required by the regulations is necessary to ensure that employees are aware of their rights when they take leave.”). “When an employee seeks leave for the first time for a FMLA–qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA.” 29 C.F.R. § 825.302(c). “Employees are not required to designate whether the leave they are taking is FMLA leave or leave under State law, and an employer must comply with the appropriate (applicable) provisions of both.” 29 C.F.R. § 825.701(a).

Here, Defendant argues that it protected Plaintiff’s rights by not running his FMLA concurrently with the medical leave provided by CSA. ECF No. 65 at 17. Next, Defendant argues that Plaintiff failed to give the required notice. ECF No. 65 at 18. In other words, Defendant argues that even if Plaintiff were entitled to FMLA leave, Defendant did not interfere with his FMLA rights by not providing him with individualized notice of his FMLA rights. This is because he never gave notice that he intended to exercise those rights. ECF No. 65 at 17.

Defendant cites Acker v. GM, L.L.C., 853 F.3d 784, 788–89 (5th Cir. 2017) to support its argument that an employee must give notice. ECF No. 65 at 18. Defendant directly quotes Acker as saying an “employee must give employer notice of his intention to take [FMLA leave] in order to be entitled to it, even when the need for leave is unforeseeable.” Id. This is a misquotation. The latter half of the sentence above comes from a different paragraph that states, “[e]ven when an employee’s need for leave is unforeseeable, the regulations make clear the employee’s duty to comply with the employer’s policy.” Acker, 853 F.3d at 789 (citing 29 C.F.R. § 825.303(c)). The cited regulation provides instances where an employee’s notice might be delayed, or advance notice may not be required:

When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require employees to call a designated number or a specific individual to request leave. However, if an employee requires emergency medical treatment, he or she would not be required to follow the call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. Similarly, in the case of an emergency requiring leave because of a FMLA–qualifying reason, written advance notice pursuant to an employer’s internal rules and procedures may not be required when FMLA leave is involved.

Here, Defendant’s confused citation to the FMLA “foreseeability” standards is largely irrelevant for two reasons. First, the record suggests that Plaintiff did request leave in some manner. In his Second Amended Complaint, Plaintiff alleges that he requested medical care, instituted a worker’s compensation claim on May 15, 2017, and took medical leave for various treatments. ECF No. 60 at 5. Defendant acknowledges that Plaintiff complained of hearing loss and other medical problems and was immediately placed on leave on the same date. ECF No. 65 at 6. Plaintiff did not need to mention the FMLA at the time. Thus, because Plaintiff requested leave and Defendant had knowledge that it was for a FMLA-qualifying reason, Defendant was on constructive notice. Second, Defendant has not shown that Plaintiff failed to comply with Defendant’s own customary notice and procedural requirements for requesting leave. See, e.g., Acker, 853 F.3d at 789 (where the plaintiff failed to comply with his employer’s procedure when he failed to call in 30 minutes before his shift began prior to his absence).

*19 Finally, Defendant argues that Plaintiff was given notice of his FMLA rights by being given an employee handbook that all employees were responsible for reading. ECF No. 72 at 17. This argument fails because it fails to distinguish the proper notice requirements as set forth in 29 C.F.R. § 825.304(a) with the individualized eligibility notice required by § 825.300(b)(1) and held by the Fifth Circuit as valid and enforceable. Furthermore, Defendant appears to concede that it had knowledge that Plaintiff’s leave was for a FMLA-qualifying reason. This is because Defendant argues that it could have placed Plaintiff on FMLA leave and protected Plaintiff’s FMLA leave by not running it concurrently with his CSA leave. ECF No. 65 at 18.

Because Defendant had knowledge that Plaintiff’s leave was for a FMLA-qualifying reason, Defendant was required to give individualized notice of his eligibility. Thus, Plaintiff’s lack of notice of his intention to take FMLA leave does not defeat his FMLA claim.

3. Whether Plaintiff Was Qualified for FMLA Leave

Eligible employees under the FMLA are entitled to take leave “because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The FMLA defines the term “serious health condition” as an “illness, injury, impairment, or physical or mental condition” that involves “inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). A serious health condition involving continuing treatment by a health care provider involves both “incapacity” of “more than three consecutive, full calendar days,” and “any subsequent treatment or period of incapacity relating to the same condition.” 29 C.F.R. § 825.115(a). “Incapacity” is defined as an “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” 29 C.F.R. § 113(b). Subsequent treatment must involve:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 C.F.R. § 825.115(a). Here, Defendant argues that Plaintiff failed to present evidence that he was qualified to seek FMLA leave by failing to show he had a serious health condition which prevented him from going to work. ECF No. 72 at 18. The Court is unpersuaded by this argument for two reasons. First, the Court notes that this is inconsistent with Defendant’s earlier argument when it reasoned that it protected Plaintiff’s FMLA rights by not running them concurrently with his CSA leave. Supra at 33. This is because Defendant could not have run Plaintiff’s FMLA leave concurrent with his CSA leave if he were not qualified to seek FMLA leave.

Second, Plaintiff’s injury qualifies as a serious health condition, of which the Defendant had knowledge. Plaintiff reported to his supervisors that he was having trouble hearing and could not sleep. ECF No. 60 at 5. He was driven to a hospital by one of his supervisors for treatment. Id. Plaintiff was and continues to be treated for his injuries. Id. Defendant acknowledges that Plaintiff complained of hearing loss and other medical problems and that it his physician did not release him to return to light-duty work until six months later. ECF No. 65 at 6.

*20 Defendant cites to Mauder v. Metro. Transit Auth. of Harris Cty., Tex., 446 F.3d 574, 582 (5th Cir. 2006) in support of its argument that an employer is not accountable unless an employee provides his employer with information needed to process potentially qualifying leave. ECF No. 72 at 19. On this issue, this case only affirms what is stated in 29 U.S.C. § 2613 — that an employer may require that an employee’s leave request be supported by a certification from the employee’s health care provider. The statute does not say that an employee’s leave request must be supported by a certification of his health care provider absent of an employer having this requirement. Defendant has also not shown that it did require more information from Plaintiff or that Plaintiff refused to comply with these requirements.

The Court therefore FINDS that Plaintiff has made a prima facie showing of being qualified for FMLA leave. Subsequently, Defendant’s lack of providing Plaintiff notice of his FMLA rights constitutes interference with his FMLA rights.

4. No Relief unless Prejudiced by the Violation

Finally, even if Plaintiff can prove interference, restraint, or denial of the exercise of FMLA rights, there can be no relief unless the employee has been prejudiced by the violation. See Ragsdale, 535 U.S. at 89 (“[29 U.S.C.] § 2617 provides no relief unless the employee has been prejudiced by the violation: The employer is liable only for compensation and benefits lost by reason of the violation, for other monetary losses sustained as a direct result of the violation, and for appropriate equitable relief, including employment, reinstatement, and promotion.” (cleaned up)). “FMLA’s remedial scheme requires an employee to prove prejudice as a result of the employer’s lapse; the employee may not expand the statute’s coverage as a penalty for an employer’s technical compliance shortcoming.” Lubke v. City of Arlington, 455 F.3d 489, 497 (5th Cir. 2006).

The Fifth Circuit has examined this issue several times, and in each case its ruling turned on whether the FMLA interference somehow caused an employee’s termination. In Lubke, the plaintiff’s jury verdict was affirmed because the lack of notice led to a lack of medical certification and the loss of a job. Id. at 498. In Downey, the plaintiff “proved that she was actually prejudiced by her employer’s noncompliance with the regulations: had she received individualized notice, she would have been able to postpone her surgery ... and her position ... would not have been jeopardized.” 510 F.3d at 541.

However, in Bernard, the Fifth Circuit reasoned that “the lack of individualized notice had nothing to do with [the plaintiff] not taking leave or losing her job.” 630 Fed. Appx. at 243. The Fifth Circuit observed that the plaintiff was aware of her employer’s more generous leave program and had participated in it and that she returned to work before exhausting her leave under the program despite knowing she could have taken more partially paid time off. Id. The Fifth Circuit concluded that nothing suggested that the plaintiff would have taken additional leave if she had known that she had a right to medical leave under the FMLA and that she therefore was not prejudiced by her employer’s lack of notice. Id. And in Hart v. Comcast of Houston, LLC, 347 Fed. Appx. 978, 980 (5th Cir. 2009), the Fifth Circuit held that the plaintiff was not harmed by any lack of notice. This is because the evidence showed that the employee was allowed his requested leave and to return to the same position with the same pay and was fired for failing to return to work.

Here, Plaintiff alleged in his Second Amended Complaint that Defendant’s conduct justified an award for back pay, front pay, interest, special damages, and all other remedies available at law and equity. ECF No. 60 at 11. However, he stated in his response to Defendant’s Motion for Summary Judgment that he is “merely seeking injunctive relief against the Defendant to ensure that Defendant complies with these requirements in the future.” ECF No. 69 at 29. In either case, Plaintiff must show that he was prejudiced by Defendant’s lack of individualized notice of his FMLA rights. Defendant argues in response that Plaintiff has not pled or demonstrated any prejudice, nor shown that he was harmed by not being placed on FMLA leave running concurrently with his leave under state law. ECF No. 65 at 20.

*21 Plaintiff does briefly address this question in noting that FMLA regulations include the right to decline light-duty assignments and remain on unpaid FMLA leave when used to supplement workers’ compensation. ECF No. 69 at 28 (citing 29 C.F.R. § 825.207(e)). In other words, had Plaintiff been given notice of his FMLA rights, he might have used them to decline his return to light-duty. However, Plaintiff makes no showing that he would have declined his light-duty assignment and chosen to remain on unpaid leave. And even if he would have, the record suggests that his return to light-duty had nothing to do with his termination. Plaintiff returned to light-duty on November 13, 2017, and was not terminated until over two weeks later — after being placed on leave a second time and being given a full release back to work. See ECF Nos. 60 at 6, 69 at 21. Nothing in the record suggests that he had returned to light-duty with a lower position or a lower pay. It is true that two of the alleged incidents of insubordination which Defendant cites as the ultimate reason for his termination occurred while he was still on light-duty. However, there is no indication that the “packet incident” would not have inevitably occurred on a later date. The documents were “a random collection of various policies and procedures which had nothing to do with light duty.” ECF No. 60 at 15.

Because Plaintiff has failed to show that he was prejudiced by Defendant’s lack of notice, the Court therefore FINDS that his claim of FMLA interference fails. Accordingly, Defendant’s Motion for Summary Judgement is GRANTED with respect to Plaintiff’s claims under the FMLA.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Defendant is entitled to summary judgment on all of Plaintiff’s claims in his Second Amended Complaint. It is therefore ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 65) is GRANTED in its entirety and with respect to all of the aforementioned claims.

SO ORDERED.

Footnotes

1

Plaintiff has filed multiple complaints in this case. See ECF Nos. 1, 26, 60. Defendant moves for summary judgment on all claims appearing in Plaintiff’s most recent amended complaint (ECF No. 60).

2

For this reason, the Court does not need to examine here whether the “Intake Questionnaire” filed by Plaintiff with the EEOC on or around December 15, 2017, qualifies as a charge for the purposes of his Title VII and ADA claims.

3

Because Plaintiff appears to have omitted these allegations in his Second Amended Complaint, the Court declines to address them or any claims predicated upon them.

4

Defendant’s HR timeline states that Plaintiff “failed to appear at City Hall as directed by Chief” on November 30, 2017, to discuss his insubordinate behavior. See ECF No. 65 at 5, 7.

5

Insubordination also violates Defendant’s own policy, which cites Section 143.051 of the Texas Local Government Code. See ECF No. 65-2 at 40. The statute provides that a firefighter may be removed for “discourtesy to the public or to a fellow employee while the fire fighter or police officer is in the line of duty” and for “conduct prejudicial to good order.” Tex. Loc. Gov’t Code Ann. § 143.051(5),(8).

United States District Court, N.D. Texas, Dallas Division.

Donald WATKINS, Plaintiff,

v.

SALEM CARRIERS INCORPORATED, Christi I. Whitaker, Salem Safety Department, Crum & Forster Insurance Brokers, Tammie Rossiter Manager, and Toni Whitlow, Crum & Forster Adjuster, Defendants.

Civil Action No. 3:19-CV-2252-X-BH

|

Signed 05/12/2020

Attorneys & Firms

Donald Watkins, Carrollton, TX, pro se.

Kimberly S. Moore, Toluwalope O. Babade, Clark Hill Strasburger, Frisco, TX, for Defendants Salem Carriers Incorporated, Christi I. Whitaker, Salem Safety Department.

Brian S. Martin, Cyrus Wayne Haralson, Thompson Coe Cousins & Irons LLP, Houston, TX, for Defendants Crum & Forster Insurance Brokers, Tammie Rossiter, Toni Whitlow.

Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE

*1 Before the Court are Plaintiff’s Motion for Remand, filed October 11, 2019 (doc. 6), and the plaintiff’s Motion to Stay Discovery, filed March 10, 2020 (doc. 14). Based on the relevant filings and applicable law, the motion for remand should be DENIED, and the motion to stay discovery is DENIED as moot.

I. BACKGROUND

On August 16, 2019, Donald Watkins (Plaintiff) sued Salem Carriers Incorporated, Cristi I. Whitaker, and Salem Safety Department (collectively Salem Defendants), and Crum & Forster, Tammie Rossiter, and Toni Whitlow (collectively Crum Defendants), in County Court at Law No. 4 in Dallas County, Texas, for discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), and the Texas Workers’ Compensation Act, V.T.C.A., Labor Code § 401.001 et seq. (TWCA). (doc. 1-6 at 1-7.)2 His state court petition alleges that the defendants “discriminated and retaliated against [him] for suffering a disability and exercising his Texas right to file for Worker’s Compensation claim by denying employment accommodation and terminating [his] employment in direct violation of the ADA and [TWCA].” (Id. at 6.) Plaintiff seeks “lost past light duty wages in the amount of $30,000,” “lost future wages for five years in the ammount[sic] of $179,400,” and “punitive damages in the amount of $100,000 from each Defendant.” (Id. at 6-7.)

On September 19, 2019, Crum Defendants removed the action, asserting federal question jurisdiction based on Plaintiff’s ADA claims. (See doc. 1 at 3.)3 They contend that the Court has supplemental jurisdiction over his remaining claims. (Id.)

On October 11, 2019, Plaintiff moved to remand this action, arguing the Court lacks subject matter jurisdiction because his “Title I ADA complaint is currently under investigation with the EEOC and the administrative remedies have not been exhausted when this case was removed to federal court.” (doc. 7 at 1-2.) He also alleges that he was never served the notice of removal. (Id. at 1.) The defendants filed separate responses to the motion on November 1, 2019, but he did not reply. (docs. 12, 13.) On March 10, 2020, Plaintiff moved to stay discovery pending resolution of the motion to remand. (doc. 14.) The defendants jointly responded to the motion on March 19, 2020 (doc. 17), and he replied on March 30, 2020 (doc. 19).

II. MOTION TO REMAND

Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over that action. 28 U.S.C. § 1441(a). A district court’s original jurisdiction is of two types: federal question jurisdiction and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Federal question jurisdiction exists in all civil actions arising under the Constitution, laws, or treaties of the United States. Id. § 1331. Diversity jurisdiction exists in all civil actions where the amount in controversy exceeds $75,000.00, exclusive of interests and costs, and there is diversity of citizenship between the parties. Id. § 1332(a). When a civil action is removed solely under 1441(a), “all defendants who have been properly joined and served must join in or consent to the removal of the action.” Id. at § 1446 (b)(2).

*2 “Section 1447(c) provides two grounds for remand: (1) a defect in removal procedure and (2) lack of subject matter jurisdiction.” Burks v. Amerada Hess Corp., 8 F.3d 301, 303 (5th Cir. 1993). To determine whether it has federal jurisdiction over the removed case, the court must “consider the claims in the state court petition as they existed at the time of removal.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). “The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Id. “This burden extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute.” Fraire v. Budget Rent-A-Car of El Paso, Inc., No. EP-10-CV-338-PRM, 2011 WL 3678584, at *2 (W.D. Tex. Mar. 31, 2011) (citing Burks, 8 F.3d at 303). If there is “any doubt about the propriety of removal, [it] must be resolved in favor of remand.” Gasch v. Hartford Acc. & Indem. Co., Procedural Defect

Plaintiff contends that removal was not proper because he was never served the notice of removal. (doc. 7 at 1.)

Removal is a three-step process that “requires a removing party to (1) file the notice of removal in the federal court; (2) give written notice to all adverse parties; and (3) file a copy of the notice with the clerk of the state court.” Hampton v. Union Pacific R. Co., 81 F. Supp. 2d 703, 707 (E.D. Tex. 1999) (citing 28 U.S.C. § 1446(d)); see Frank A. Smith Sales, Inc. v. Great Northern Ins. Co., No. 7:14-CV-804, 2015 WL 12804538, at *2 (S.D. Tex. Feb 23, 2015) (same). “[R]emoval is not effected until all three requirements are met.” Frank A. Smith Sales, Inc., 2015 WL 12804538, at *2; Hampton, 81 F. Supp. 2d at 707.

Here, the Crum Defendants have shown that they filed their notice of removal in federal court and a separate notice of removal in state court on September 19, 2019. (See docs. 1; 12-1 at 5-6.) The state court records reflect that the notice of removal filed in state court was served electronically on Plaintiff at the email address he had on file in the state action.4 (See doc. 12-1 at 91-93.) Crum Defendants also sent him a copy of the notice of removal via certified mail. (Id. at 2); see Russell v. Bac Home Loans Servicing, L.P., No. SA-14-CA-480-FB, 2015 WL 11545023, at *4 (W.D. Tex. Mar. 11, 2015) (citation omitted) (“The mailing of the notice of removal was sufficient to promptly give plaintiff written notice of the removal, which is all the statute requires.”). Plaintiff does not dispute this evidence, nor their allegations that they sent him a copy of the notice of removal. Because the § 1446(d) requirements have been satisfied, remand for failure to serve notice of removal is not warranted.

B. Jurisdictional Defect

*3 Plaintiff argues that this case should be remanded because his “Title I ADA complaint is currently under investigation with the EEOC and the administrative remedies have not been exhausted when this case was removed to federal court.” (doc. 7 at 1-2.) He contends that there is no federal question jurisdiction because his ADA claim “has not satisfied the exhaustion requirement.” (Id. at 2.) The defendants respond that Plaintiff’s ADA claim is within the Court’s subject matter jurisdiction because it involves a federal statute, and that the exhaustion requirement for Title I ADA claims does not preclude removal. (docs. 12 at 3-4; 13 at 5.)

Generally, a defendant may not remove a state case to federal court unless the face of the plaintiff’s well-pleaded complaint “establishes that the cause of action arises under federal law.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997) (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10-11, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The Fifth Circuit has held that federal courts have federal question jurisdiction over ADA claims. See Zamora v. GC Servs., L.P., 647 F. App’x 330, 331 (5th Cir. 2016) (“The district court had jurisdiction over [the plaintiff’s] federal ADA claims under 28 U.S.C. § 1331.”); see also Clewis v. Medco Health Solutions, Inc., 578 F. App’x 469, 471 (5th Cir. 2014) (concluding that the district court had subject matter jurisdiction because plaintiff’s petition at the time of removal contained a federal claim for violation of the ADA).

Here, Plaintiff alleges that the defendants failed to provide him reasonable accommodations and retaliated against him in violation of the ADA and the TWCA. (See doc. 1-6 at 6.) He acknowledges that when he originally filed this suit in state court, he had asserted an ADA claim but that his complaint with the EEOC remained pending. (doc. 7 at 2.) The Supreme Court recently held that the mandatory exhaustion requirement of Title VII is “not a jurisdictional prescription delineating the adjudicatory authority of courts.” Fort Bend Cty., Tex. v. Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1851, 204 L.Ed.2d 116 (2019). The ADA incorporates by reference Title VII’s administrative procedures. See Patton v. Jacobs Eng’g Group, Inc., 874 F.3d 437, 443 (5th Cir. 2017) (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (per curiam)). Because Plaintiff asserts an ADA claim and administrative exhaustion is not a jurisdictional requirement to file suit in federal court, federal question jurisdiction existed at the time of removal. See Clewis, 578 F. App’x at 471; Zamora, 647 F. App’x at 331; see also Cormier v. Wal-Mart Stores, Inc., 145 F. Supp. 3d 666, 670 (W.D. La. 2015) (citing Harris v. Amoco Prod. Co., 768 F.2d 669, 680 (5th Cir. 1985) (“[T]he Fifth Circuit has ruled that waiting for receipt of the right-to-sue notice before suing is not jurisdictional.”) (citations omitted)). Plaintiff’s motion for remand on this basis should also be denied. See, e.g., Leaumont v. City of Alexandria, No. 1:13-CV-02397, 2013 WL 5426013, at *3 (W.D. La. Sept. 26, 2013), aff’d by 582 F. App’x 407 (5th Cir. 2014) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (denying motion to remand unexhausted ADA claim because “[p]laintiff’s failure to exhaust his administrative remedies does not defeat federal question jurisdiction”)).5

III. MOTION TO STAY DISCOVERY

Plaintiff also moves to stay discovery pending resolution of the motion for remand. (See doc. 14.) Because the motion for remand should be denied, his motion to stay discovery is DENIED as moot.

IV. RECOMMENDATION

*4 Plaintiff’s motion for remand should be DENIED, and his motion to stay discovery is DENIED as moot.6

SO RECOMMENDED on this 12th day of May, 2020.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

Footnotes

1

By Special Order No. 3-251, this pro se case was automatically referred for full case management.

2

Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers at the bottom of each filing.

3

The joint notice of removal states that the Salem Defendants “consent to this removal.” (docs. 1 at 5; 1-19.)

4

Under Texas law, an electronic filed document “must be served electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager.” See Tex. R. Civ. P. 21a(a)(1).

5

Because Plaintiff’s motion for remand is subject to denial, it is unnecessary to address the defendants’ remaining arguments for denying remand.

6

In the conclusion to their response to the motion to stay discovery, the defendants request “an Order compelling Plaintiff to provide discovery responses and responsive documents without objection, within ten (10) days of the date of the Order, or face discovery sanctions.” (See doc. 17 at 8-9.) Any intended motion to compel is DENIED without prejudice to filing a motion that complies with the applicable rules of civil procedure and the local civil rules.

United States District Court, N.D. Texas, Dallas Division.

Chase POTTER, Individually and on Behalf of the Estate of Christopher Potter, Plaintiff,

v.

Michael CABELLO and FedEx Freight, Inc., Defendants.

CIVIL ACTION NO. 3:19-CV-1330-G

|

Signed 11/19/2019

Attorneys & Firms

Levi G. McCathern, II, James Eamonn Sherry, Marcus L. Fifer, McCathern PLLC, Dallas, TX, Ashlea McCathern, Ben Abbott, Ben Abbott & Associates PLLC, Garland, TX, for Plaintiff.

Les D. Pickett, Andrew S. Krone, Galloway Johnson Tompkins Burr & Smith, Houston, TX, Jeffrey Scott Valliere, Tollefson Bradley Mitchell & Melendi LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior United States District Judge

*1 Before the court is the motion of the plaintiff, Chase Potter (“Chase” or “the plaintiff”), to remand this case to the state court from which it was removed. Plaintiff’s Motion to Remand (docket entry 11). For the reasons set forth below, the plaintiff’s motion is granted.

I. BACKGROUND

This action arises from the death of the plaintiff’s father, Christopher Potter (“Christopher” or “the decedent”), during the course of Christopher’s employment with the defendant FedEx Freight, Inc. (“FedEx”). Christopher was hit and fatally injured by a trailer that was driven by the defendant Michael Cabello (“Cabello”), while in the course and scope of Christopher’s and Cabello’s employment at FedEx. Notice of Removal (“Notice”) (docket entry 1), Exhibit A (“Petition”) at 1. The incident occurred on or around the evening of November 16, 2018 while Christopher and Cabello were working at the FedEx premises located at 3100 South Belt Line Rd., Irving, Texas. Id. Cabello reversed a yard mule1 and connected trailer up to a loading dock in the FedEx loading facility while Christopher was standing behind the yard mule and trailer. Id. at 2-3. Christopher was crushed between the loading dock and the trailer and sustained fatal injuries as a result; he was taken to a hospital where he was pronounced dead. Id. at 3.

The plaintiff initially filed suit against FedEx in a Texas state court on February 25, 2019, asserting a claim of gross negligence for FedEx’s role in the death of his father. Notice at 1-2. Cabello was not a party to this case. FedEx removed that case to the United States District Court for the Northern District of Texas on April 1, 2019. Id. at 2. On April 3, 2019, the plaintiff filed a notice of voluntary dismissal. Id.

The plaintiff then filed his original petition in the present case on May 8, 2019, in the 101st Judicial District Court of Dallas County, Texas. Id. In his petition, the plaintiff asserts several claims in his individual capacity and on behalf of the estate of Christopher Potter, including a claim for gross negligence against FedEx, and a claim for negligence and gross negligence against Cabello. Petition at 3-6. FedEx removed the case to this court on June 3, 2019. See Notice. Cabello did not join in the removal, and FedEx contends that Cabello was not required to do so because he was improperly joined. Id. at 2. FedEx asserts that the plaintiff only joined Cabello as a defendant to destroy complete diversity between the parties, and that the court should therefore disregard Cabello’s citizenship and exercise diversity jurisdiction over the case under 28 U.S.C. § 1332. Id. at 2-4. The plaintiff and Cabello are residents of Texas.2 Id. at 3. FedEx is a corporation existing under the laws of the State of Arkansas with its principal place of business in Arkansas. Id.

*2 The plaintiff filed the instant motion to remand on July 9, 2019, asserting that this court lacks subject matter jurisdiction over the case because the plaintiff and Cabello are both citizens of Texas. See Plaintiff’s Brief in Support of Motion to Remand (“Motion”) (docket entry 12). On July 22, 2019, FedEx filed a response, reiterating its argument that Cabello’s citizenship should be disregarded because he was improperly joined. Defendant FedEx Freight’s Brief in Support of its Response to Plaintiff’s Motion to Remand (“Response”) (docket entry 14). The plaintiff filed a reply on August 5, 2019. Plaintiff’s Brief in Support of His Reply to Defendants Response to Plaintiff’s Motion to Remand (docket entry 15-1). The plaintiff’s motion is therefore fully briefed and ripe for decision.

II. ANALYSIS

A. Removal Jurisdiction

28 U.S.C. § 1441(a) permits the removal of “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). The statute allows a defendant to “remove a state court action to federal court only if the action could have originally been filed in federal court.” 2 F.3d 590, 593 (5th Cir. 1993). However, the removal statute must be strictly construed because “removal jurisdiction raises significant federalism concerns.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (citation omitted). Accordingly, “any doubt as to the propriety of removal should be resolved in favor of remand.” Id. (citation and internal quotations omitted). The party seeking removal bears the burden of establishing federal jurisdiction. Willy v. Coastal Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988).

There are two principal bases upon which a district court may exercise removal jurisdiction: the existence of a federal question, see 28 U.S.C. § 1331, and complete diversity of citizenship among the parties, see 28 U.S.C. § 1332. Here, federal question jurisdiction is not at issue. Rather, FedEx asserts that the court may properly exercise diversity jurisdiction over this case. See Notice at 2-3. A federal court can properly exercise jurisdiction on the basis of diversity of citizenship only if three requirements are met: (1) the parties are of completely diverse citizenship, see 28 U.S.C. § 1332(a); (2) none of the properly joined defendants is a citizen of the state in which the case was brought, see 28 U.S.C. § 1441(b); and (3) the case involves an amount in controversy of more than $75,000, see 28 U.S.C. § 1332(a). In this case, there does not appear to be complete diversity between the parties because the plaintiff and Cabello appear to be citizens of Texas. See Notice at 3. FedEx, however, contends that removal is proper because the plaintiff improperly joined Cabello. Id. Thus, before determining whether the exercise of removal jurisdiction based on diversity of citizenship would be proper in this case, the court must first determine whether Cabello was properly joined as a party. See Myers v. Allstate Texas Lloyd’s, No. 1:10-CV-172, 2011 WL 846083, at *5 (E.D. Tex. Mar. 8, 2011) (citation omitted)(“Citizenship of an improperly joined party is totally disregarded in determining the court’s subject matter jurisdiction.”).

B. Joinder of Parties

Even if a defendant has the same citizenship as the plaintiff, a federal court can still exercise removal jurisdiction over an action if the court finds that the plaintiff improperly joined the nondiverse defendant. See McDonal v. Abbot Laboratories, 408 F.3d 177, 183 (5th Cir. 2005). “The party seeking removal bears [the] heavy burden of proving that the joinder of the in-state party was improper.” Smallwood v. Illinois Central Railroad Company, 385 F.3d 568, 574 (5th Cir. 2004) (en banc), cert. denied, 544 U.S. 992 (2005). This burden requires the trial court to “resolve any contested issues of material fact, and any ambiguity or uncertainty in the controlling state law, in the [plaintiff’s] favor.” Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999).

*3 To establish improper joinder, a defendant must demonstrate either “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). This latter method, the only one at issue in the present case, requires the defendants to establish that “there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” Id. “Most often, the improper joinder determination must focus on whether the [p]laintiff[’s] alleged facts raise an inference that a recovery is possible[.]” McGinnis v. Interoceanica Agency, Inc., No. CA G-11-214, 2011 WL 13340805, at *1 (S.D. Tex. Aug. 8, 2011). In this case, however, there exists a legitimate dispute between the parties as to whether the plaintiff’s claim against Cabello is recognized by Texas law. Accordingly, the court must make a threshold inquiry as to “whether the [p]laintiff[’s] alleged cause of action ... is even cognizable under Texas law.” See id.

C. Whether the Plaintiff’s Claim against Cabello is Cognizable under Texas Law

FedEx argues that the plaintiff’s claim against Cabello is deficient as a matter of law under the Texas Workers’ Compensation Act (“TWCA”, or “the Act”), which, in FedEx’s view, prevents the survivor of a deceased employee from bringing a claim against the decedent’s co-employee whose gross negligence caused the decedent’s death. See Response at 7-8. The plaintiff maintains that his claim is not barred by the TWCA, and cites several cases from the Texas court of appeals in support of his argument. See Motion at 4. Thus, the issue before the court is whether Chase’s claim against Cabello, the decedent’s co-employee, is barred by the TWCA.

In applying Texas law, [federal courts] look first to the decisions of the Texas Supreme Court. If the Texas Supreme Court has not ruled on an issue, [the federal court] make[s] an Erie guess, predicting what the Texas Supreme Court would do if faced with the same facts. In doing so, [federal courts] typically treat state intermediate courts’ decisions as the strongest indicator of what a state supreme court would do, absent a compelling reason to believe that the state supreme court would reject the lower courts’ reasoning.

Ironshore Europe DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 764 (5th Cir. 2019) (internal citations, quotations, and brackets omitted). The parties do not cite, and the court is not aware of, any case in which the Texas Supreme Court has addressed the specific issue presented here. Accordingly, the court must make an Erie guess to determine whether it is likely that the Texas Supreme Court would find the plaintiff’s claim cognizable under Texas law.

Under section 408.001(a) of the TWCA, “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” Tex. Lab. Code § 408.001(a). The plaintiff does not dispute that Christopher Potter was covered by workers’ compensation insurance while employed at FedEx. Rather, the plaintiff relies on the statutory exception to section 408.001(a)’s “exclusive remedy” provision. Section 408.001(b) states: “This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.” Tex. Lab. Code § 408.001(b).

FedEx, relying solely on the text of the TWCA, asserts that section 408.001(b) applies only to employers, not to a decedent’s co-employees, and thus, the plaintiff’s claim against Cabello does not fall within section 408.001(b)’s exception to the exclusive remedy provision. Response at 7-8. However, consideration of several decisions by the Texas court of appeals persuades this court to conclude that the plaintiff’s gross negligence claim against Cabello is likely cognizable under Texas law. See Ironshore, 912 F.3d at 764 (quoting Kelly v. Nichamoff, 868 F.3d 371, 375 (5th Cir. 2017)) (“ ‘[W]e typically treat state intermediate courts’ decisions as the strongest indicator of what a state supreme court would do, absent a compelling reason to believe that the state supreme court would reject the lower courts’ reasoning.’ ”).

*4 This court is aware of only one Texas court of appeals case in which the court considered the precise issue presented in the present case: whether the “spouse or heirs of the body” of a deceased employee who was covered by workers’ compensation insurance may assert a claim for gross negligence against the decedent’s co-employee whose alleged gross negligence caused the decedent’s death. See Aguirre v. Vasquez, 225 S.W.3d 744 (Tex. App.-Houston [14th Dist.] 2007, no writ). There, the court found such a claim cognizable under Texas law.

In Aguirre, the wife and children of a deceased employee (“Jose”) asserted a claim of gross negligence against the estate of the decedent’s co-employee (“Ernesto”) and Jose and Ernesto’s mutual employer, Systems Painters, Inc. 225 S.W.3d at 754. Ernesto was the driver of a truck in which Jose and several other Systems Painters employees had been riding in the course and scope of their employment when Ernesto stopped the truck on the left lane of a highway where it was hit by a semi-trailer, resulting in Jose’s death. Id. at 749-50, 55. “Ernesto’s estate filed a motion for summary judgment, contending the exclusive remedy provision of the Workers’ Compensation Act” barred the claims of Jose’s family members. Id. at 750. The trial court granted Ernesto’s estate’s motion for summary judgment on Jose’s family’s claim for gross negligence, id., and Jose’s family members appealed. The only appellee in the case was Ernesto’s estate. See id. at 745.

Upon consideration of the exclusive remedy provision of the TWCA, the Aguirre court found Jose’s family’s gross negligence claim cognizable under Texas law. The court’s consideration of section 408.001(b)’s impact on Jose’s family’s claim against Ernesto’s estate comprises two sentences:

The [TWCA] does not prohibit recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence. Tex. Labor Code § 408.001(b).... Therefore, the gross negligence claim for exemplary damages filed by Jose’s family members survives the exclusivity provision of the Act.

Aguirre, 225 S.W.3d at 753-54. Given the factual similarity between the present case and Aguirre, the court finds the Aguirre court’s interpretation of section 408.001(b) a strong indicator of “what the Texas Supreme Court would do if faced with the same facts.” See Ironshore, 912 F.3d at 764. The plaintiff is indisputably an “heir of the body” of his father, the decedent. Just as the Aguirre court found Jose’s wife and children’s claim for gross negligence against Ernesto’s estate cognizable, Texas courts would likely find the plaintiff’s claim cognizable here.

The court is further persuaded that the plaintiff’s claim is likely cognizable by a line of Texas court of appeals cases in which the court treated a co-employee’s immunity under the TWCA as derivative of the employer’s immunity. In Boult v. Smith, the court held that “under the ‘exclusive remedy’ rule, an employer’s immunity from liability for negligence or gross negligence extends to co-employees; thus, co-employees are exempt from negligence actions.” No. 03-02-00303-CV, 2004 WL 2357881, at *4 (Tex. App.-Austin Oct. 21, 2004) (citing Tex. Lab. Code § 408.001) (emphasis added). Similarly, in Berkel & Company Contractors, Inc. v. Lee, the court found that “[u]nder the plain text of [section 408.001(a)], the employer’s immunity extends to his servants[.]” 543 S.W.3d 288, 295 (Tex. App.-Houston [14th Dist.] 2018), reh’g granted in part (Jan. 23, 2018), review denied (Aug. 30, 2019); see also Burkett v. Welborn, 42 S.W.3d 282, 287 (Tex. App.-Texarkana 2001) (finding that under section 408.001, “[t]he immunity of the employer extends to co-employees.”). These cases evince an interpretation of the “exclusive remedy” rule under which a co-employees’s immunity under the TWCA is an extension of and dependent upon the employer’s immunity. It therefore stands to reason that in a case where the employer is stripped of the immunity provided by section 408.001(a) due to the employer’s gross negligence, the decedent’s grossly negligent co-employee is stripped of immunity as well.

*5 Though FedEx’s textual argument is not without merit, the court does not write on a blank slate and is not at liberty to disregard the Texas court of appeals’s interpretation of section 408.001. When a federal court renders an Erie guess regarding a state statute that intermediate state courts have construed in a particular way, considerations of comity with the state judiciary instruct federal courts to defer to the sound judgment of intermediate state courts “absent a compelling reason to believe that the state supreme court would reject the lower courts’ reasoning.” See Ironshore, 912 F.3d at 764; see also International Corrugated & Packing Supplies, Inc. v. Lear Corp., 771 F. App’x 545, 547 (5th Cir. 2019) (quoting Rhynes v. Branick Manufacturing Corp., 629 F.2d 409, 410 (5th Cir. Unit A 1980)) (cautioning that federal courts “should perhaps—being out of the mainstream of Texas jurisprudential development—be more chary of” making extrapolations and predictions regarding questions of state law “than should an inferior state tribunal.”). Here, the court finds no compelling reason to depart from the holding in Aguirre and the interpretation of co-employee immunity under the TWCA espoused in Boult, Berkel, and Burkett. Furthermore, the Fifth Circuit has instructed that “any doubt as to the propriety of removal should be resolved in favor of remand.” Gutierrez, 543 F.3d at 251(citation and internal quotations omitted). Accordingly, the court concludes that the plaintiff’s claim for gross negligence against Cabello is likely cognizable under Texas law.

D. Whether the Plaintiff has Sufficiently Pled His Claim against Cabello

Having concluded that the plaintiff’s claim for gross negligence against Cabello is likely cognizable under Texas law, the court next considers whether the plaintiff has sufficiently pled his claim.

As set forth above, a defendant may establish improper joinder by showing the plaintiff’s “inability ... to establish a cause of action against the non-diverse party in state court.” Smallwood, 385 F.3d at 573. To do so, the defendant must demonstrate that “there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” Id. To determine if the defendant has made this showing, a court generally conducts “a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.” Id. In conducting this “Rule 12(b)(6)-type analysis,” the court applies the federal pleading standard. International Energy Ventures Management., L.L.C. v. United Energy Group, Ltd., 818 F.3d 193, 207-08 (5th Cir. 2016).

“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)), cert denied, 552 U.S. 1182 (2008). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [the] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations, quotation marks, and brackets omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” In re Katrina Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id. (quoting Martin K. Eby Construction Company, Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)) (internal quotation marks omitted).

The Supreme Court has prescribed a “two-pronged approach” to determine whether a complaint fails to state a claim under Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The court must “begin by identifying the pleadings that, because they are no more than legal conclusions, are not entitled to the presumption of truth.” Id. at 679. The court should then assume the veracity of any well-pleaded allegations and “determine whether they plausibly give rise to an entitlement to relief.” Id. The plausibility principle does not convert the Rule 8(a)(2) notice pleading standard to a “probability requirement,” but “a sheer possibility that a defendant has acted unlawfully” will not defeat a motion to dismiss. Id. at 678. The plaintiffs must therefore “plead [ ] factual content that allows the court to draw the reasonable inference that the defendant[ ] [is] liable for the misconduct alleged.” Id. (bracket omitted). “[W]here the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but has not ‘show[n]’—‘that the pleader[s] [are] entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original). The court, drawing on its judicial experience and common sense, must undertake the “context-specific task” of determining whether the plaintiff’s allegations “nudge” his claims against the defendant “across the line from conceivable to plausible.” See id. at 679, 683.

*6 “To state a claim for gross negligence, [a] [p]laintiff must show (1) the breach of a duty involving an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) that the actor was actually aware of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others.” Cooper v. Bank of New York Mellon, No. 3:13-CV-1985-N-BK, 2014 WL 349577, at *5 (N.D. Tex. Jan. 31, 2014) (Godbey, J.) (citing General Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex. 1999)).

Here, the plaintiff alleges that Cabello breached the duty of care that he owed to the decedent by, inter alia, “[f]ailing to ensure that no person, including [the] [d]ecedent, was between the yard mule and/or the trailer and the loading dock as [Cabello] was reversing the yard mule and trailer”, and “[f]ailing to ensure that the back-up/reverse alarm on the yard mule and/or trailer was in good repair and properly functioning[.]” Petition at 5. The plaintiff also alleges that Cabello “had actual, subjective awareness of” the “extreme degree of risk” that his actions posed to others, “but nevertheless proceeded with conscious indifference to the rights, safety, and welfare of [Christopher] Potter and all others who were in the area at the time of the incident.” Id. at 6. Taking these allegations as true, as the court must when conducting a 12(b)(6) analysis, the court concludes that the plaintiff has stated a claim “on which relief may be granted.” See International Energy Ventures, 818 F.3d at 202. The allegation that Cabello failed to ensure that there was no one behind him before reversing a trailer up to a loading dock gives rise to a plausible inference that Cabello was actually aware of the extreme risk that his actions posed to his co-employees who were in the area on the night of Christopher’s death, but nevertheless proceeded with conscious indifference to his co-employees’ safety. See Fugett v. DCP Midstream, L.P., No. 2:14-CV-00111-J, 2015 WL 510965, at *5 (N.D. Tex. Feb. 6, 2015) (Robinson, J.) (finding the plaintiffs stated a claim for gross negligence based on similar allegations). Accordingly, the court concludes that the plaintiff has stated a claim against Cabello upon which relief may be granted.

In summary, the court concludes that the plaintiff’s claim against Cabello is likely cognizable under Texas law, that the plaintiff has stated a claim against Cabello on which relief may be granted, and therefore, that Cabello was properly joined in this action. Because Cabello was properly joined as a defendant, the court concludes that complete diversity does not exist between the parties, as it is undisputed that the plaintiff and Cabello are both citizens of Texas. Thus, the court is without subject matter jurisdiction and must therefore remand the case to the state court from which it was removed.3

III. CONCLUSION

In accordance with the foregoing, the plaintiff’s motion to remand this action to the state court from which it was removed is GRANTED. This action is hereby REMANDED to the 101st Judicial District Court of Dallas County, Texas. The clerk shall mail a certified copy of this memorandum opinion and order to the district clerk of Dallas County, Texas. 28 U.S.C. § 1447(c).

*7 SO ORDERED.

Footnotes

1

A yard mule, also known as a terminal tractor, “is a semi-tractor intended to move semi trailers within a cargo yard.” https://en.wikipedia.org/wiki/Terminal_tractor (last visited November 19, 2019).

2

The court notes that FedEx’s notice of removal refers to the plaintiff’s and Cabello’s “residency” statuses rather than their respective citizenship statuses. Notice at 3. The two concepts are distinct. As the Fifth Circuit has clarified, “[i]t is important to distinguish between citizenship and residency, because a ‘citizen of one state may reside for a term of years in another state, of which he is not a citizen; for, citizenship is clearly not co-extensive with inhabitancy.’ ” Simon v. Taylor, 455 F. App’x 444, 446 n.2 (5th Cir. 2011) (quoting Bingham v. Cabot, 3 U.S. (3 Dall.) 382, 383 (1798)). Though the lack of briefing regarding the citizenship of the parties gives the court pause, the court will presume that Chase and Cabello are properly viewed as citizens of Texas, in light of the parties’ apparent agreement on the matter.

3

The court also lacks subject matter jurisdiction over this case due to the fact that Cabello is a citizen of Texas and this suit was originally filed in Texas state court. See 28 U.S.C. § 1441(b)(2) (“A civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which the action is brought.”).

United States District Court, N.D. Texas, Dallas Division.

Kathleen HUNTER, Plaintiff,

v.

BAYLOR HEALTH CARE SYSTEM, Defendant.

Civil Action No. 3:18-CV-0881-N

|

Signed 07/09/2019

Attorneys & Firms

I. Scott Lidji, Mary Jo Betzen, The Lidji Firm, Tanja K. Martini, The Martini Law Firm PC, Dallas, TX, for Plaintiff.

Jerry Fazio, Jason E. Kipness, Owen & Fazio PC, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

David C. Godbey, United States District Judge

*1 This Order addresses Defendant Baylor Health Care System’s (“Baylor”) motion to compel arbitration [21] and motion to bifurcate [24]. For the reasons stated below, the Court grants both motions.

I. ORIGINS OF THE DISPUTE

Plaintiff, Kathleen Hunter, was an employee of Baylor when she was injured while assisting a patient to the restroom. Hunter alleges that when she saw a light fixture falling from the bathroom ceiling, she threw her body over the patient. Hunter alleges that the light fixture then struck her, causing injuries to her head, neck, and left shoulder. After Baylor denied benefits, Hunter filed a breach of contract and denial of ERISA benefits suit, alleging that Baylor should have paid for her shoulder surgery. Hunter also brings state law negligence, gross negligence, and fraud claims.

Baylor now moves to bifurcate Hunter’s state law claims from her denial of ERISA benefits and breach-of-contract claims. Baylor also moves to compel arbitration of the state law claims under the Federal Arbitration Act (“FAA”).

II. THE COURT GRANTS BAYLOR’S MOTIONS TO BIFURCATE AND COMPEL ARBITRATION

Baylor alleges that Hunter agreed to arbitrate her state law claims against Baylor. As for Hunter’s ERISA and breach-of-contract claims, Baylor states that these claims are specifically carved out from the arbitration agreement and are thus not subject to arbitration. Baylor also notes that before this action was removed to federal court, the state court judge stayed the case and granted an agreed motion to arbitrate. However, after almost a year in arbitration, the state court judge lifted the stay and remanded the case back to state court. Baylor, however, does not explain why the case was remanded. To fill in the gaps in Baylor’s description of the procedural history, the Court reviewed the removal documents, including the attached state court documents.

While this action was still pending in state court, the parties agreed to arbitrate the dispute after Baylor represented by affidavit that Hunter had signed an arbitration agreement that applied to all of her claims. But the state court judge lifted the stay and remanded the case once Hunter discovered that Baylor’s representation was false. Baylor now admits that Hunter never actually signed any arbitration agreement. Instead, Baylor argues that the underlying arbitration agreement is enforceable, regardless whether Hunter signed it. While the Court does not approve of Baylor’s conduct, the Court agrees that the underlying arbitration agreement is valid and enforceable.

A. Legal Standard

Section 2 of the FAA1 provides that written agreements to arbitrate controversies arising out of an existing contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

*2 When considering a motion to compel arbitration, the Court must determine “whether the parties agreed to arbitrate the dispute.” Webb v. Investacorp, Inc., 89 F.3d 252, 257–58 (5th Cir. 1996) (per curiam). “This determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement.” Id. at 258. In deciding whether the parties agreed to arbitrate the dispute, “courts apply the contract law of the particular state that governs the agreement.” Wash. Mut. Fin. Grp., LLC v. Bailey, 364 F.3d 260, 264 (5th Cir. 2004) (citation omitted). If there is a valid agreement to arbitrate, and there are no legal constraints that foreclose arbitration, the court must order the parties to arbitrate their dispute.

“The party seeking to compel arbitration need only prove the existence of an agreement to arbitrate by a preponderance of the evidence.” Grant v. Houser, 469 Fed. App’x 310, 315 (5th Cir. 2012) (per curiam). “[T]here is a ‘strong federal policy in favor of enforcing arbitration agreements.’ ” Texaco Exploration & Prod. Co. v. AmClyde Engineered Prods. Co., 243 F.3d 906, 909 (5th Cir. 2001) (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985)). And because of this strong presumption, “a party seeking to invalidate an arbitration agreement bears the burden of establishing its invalidity.” Carter v. Countrywide Credit Indus., 362 F.3d 294, 297 (5th Cir. 2004).

B. Hunter Agreed to Arbitrate

Baylor alleges that Hunter agreed to arbitrate her state law claims against Baylor through an arbitration provision in the Baylor Health Care System Occupational Injury Benefit Plan. Def.’s App. B-1 [21-5]. As stated above, Baylor admits that Hunter never actually signed the arbitration agreement. The FAA, however, does not require that an arbitration agreement be signed; it only requires that it be in writing. Valero Refining, Inc. v. M/T Lauberhorn, 813 F.3d 60, 64 (5th Cir. 1987); 9 U.S.C. § 2. Moreover, Texas courts have held that the question of whether a written contract, including an arbitration agreement, must be signed to be binding is a question of the parties’ intent. See, e.g., In re Bunzl USA, Inc., 155 S.W.3d 202, 209 (Tex. App.—El Paso 2004, no pet.); Valero Ref., Inc. v. M/T Lauberhorn, 813 F.2d 60, 64 (5th Cir. 1987). But in the absence of signatures, other evidence must be presented that is sufficient to show the parties’ assent to arbitrate. Id. at 210.

Baylor argues that there is a valid agreement to arbitrate because Hunter was provided notice of the arbitration agreement and accepted it by continuing her employment with Baylor. Under Texas law, “when an employer notifies an employee of changes to the at-will employment contract and the employee ‘continues working with knowledge of the changes, he has accepted the changes as a matter of law.” In re Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002) (quoting Hathaway v. General Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986)); see In re Dillard Dept. Stores, Inc., 198 S.W.3d 778, 780 (Tex. 2006). An employer asserting an arbitration agreement must prove both notice of the agreement and acceptance by the employee. See id.; Halliburton, 80 S.W.3d at 568 (citing Hathaway, 711 S.W.2d at 229). “But acceptance need not be anything more complicated than continuing to show up for the job and accept wages in return for work. ‘[W]hen the employer notifies an employee of changes in employment terms, the employee must accept the new terms or quit. If the employee continues working with knowledge of the changes, he has accepted the changes as a matter of law.’ ” Kubala v. Supreme Prod. Services, Inc., 830 F.3d 199, 203 (5th Cir. 2016) (quoting Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986)).

*3 Baylor provides sufficient evidence showing that Hunter had notice of the agreement and assented to it terms. It is undisputed that Hunter is an at-will employee. As stated above, the arbitration provision is found in the Baylor Health Care System Occupational Injury Benefit Plan. Baylor shows that Hunter became an employee of Baylor in 2005 and was assigned a unique identification number. Def.’s App. B. [21-4]. Also in 2005, Baylor became a non-subscriber to the Texas Workers Compensation Act and created the Baylor Health Care System Safe Choice Plan. Each employee went through a training process about the plan and received an electronic copy of the Baylor Health Care System Occupational Injury Benefit Plan effective July 1, 2005. Baylor also made printed copies available at the rollout training sessions. Hunter completed the training program on June 27, 2005, using her unique identification number. Def.’s App. B, B-5.

Then in 2012, all Baylor employees, including Hunter, went through another annual training on the Baylor Health Care System Safe Choice Plan and again received an electronic copy of the Baylor Health Care System Occupational Injury Benefit Plan effective July 1, 2009. Hunter completed the training program on January 30, 2012 using her unique identification number. App. B, B-1, B-2, B-5. Hunter therefore had notice of the arbitration provision in the Baylor Health System Occupational Injury Benefit Plan through the training programs.

In addition to these training programs, Baylor employees also received training through Baylor Learning Network (“BLN”). In both 2006 and 2009, Hunter received notifications to take lessons identified as Baylor Health Care System Safety 2006: Safe Choice and Baylor Health Care System Safety 2009: Safe Choice. Def.’s App. B, B-3. Hunter completed these lessons on February 5, 2006 and June 14, 2009, scoring a 100% on the lesson test each time. Def.’s App. B, B-3. Baylor alleges that the purpose of these lessons was to educate Hunter and notify her of the Baylor Health Care System Occupational Injury Benefit Plan. Within the BLN network, the plan would have been available to Hunter to review and read. Baylor argues that Hunter, as an employee, was covered by the plan during the years 2005 to 2016 and accepted the plan, including the arbitration provision, by continuing her employment with Baylor. The Court holds that Baylor provides sufficient evidence that Hunter agreed to the arbitration provision.

C. The Delegation Clause Requires an Arbitrator to Determine Whether Hunter’s Claims Fall Within the Scope of the Arbitration Agreement

The Court ordinarily determines whether an arbitration agreement covers the claims at issue. However, when an arbitration agreement contains a delegation clause giving the arbitrator the primary power to rule on the arbitrability of a specific claim, the analysis changes. Kubala., 830 F.3d at 201. When there is a possible delegation clause, the Court first performs the usual analysis of whether there is a valid agreement to arbitrate, as the Court did above. Then, the only remaining question is whether the purported delegation clause evinces an intent to have the arbitrator decide threshold issues of arbitrability. Id. The Supreme Court in Rent-A-Ctr., W., Inc. v. Jackson held the following was a valid delegation clause: “The Arbitrator ... shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, [or] enforceability ... of this Agreement.” 561 U.S. 63, 76 (2010). Here, the arbitration clause states that the following is covered by binding arbitration: “every claim or dispute relating to enforcement or interpretation of any written terms of the requirement for binding arbitration,” and “the determination of whether a claim is covered by these provision will be subject to arbitration under this arbitration requirement.” Def.’s App. B-1, Bates Label 000956, 000957. While the language used is a bit more clunky than that used in Rent-A-Center, the Court holds that this language conveys an intent to have the arbitrator decide whether a given claim falls within the scope of the arbitration agreement. The Court additionally finds no external legal constraints that would nonetheless preclude arbitration. Accordingly, the Court grants Baylor’s motion to compel arbitration of Hunter’s state law negligence, gross negligence, and fraud claims.

D. The Court Stays All Clams Compelled to Arbitration

*4 Because the Court grants Baylor’s motion to compel Hunter’s state law claims, the Court also grants Baylor’s motion to bifurcate Hunter’s state law tort claims from her ERISA denial of benefits and breach-of-contract claims. The Court additionally stays the case with respect with respect to Hunter’s state law claims.

CONCLUSION

The Court grants Baylor’s motions to compel arbitration of Hunter’s state law negligence, gross negligence, and fraud claims.2 The Court additionally grants Baylor’s motion to bifurcate and stays Hunter’s state law claims pending arbitration. Hunter’s ERISA and breach-of-contract claims are not stayed and remain pending.

Footnotes

1

Hunter did not respond to Baylor’s motion to compel arbitration, so there is no dispute regarding whether the arbitration agreement is governed by the FAA, nor that the arbitration agreement affects interstate commerce. There is similarly no dispute that Texas contract law governs whether there is a valid agreement to arbitrate.

2

The Court defers ruling on Baylor’s request for attorneys’ fees until after an arbitration award is issued.

United States District Court, N.D. Texas, Fort Worth Division.

Lelia VARELA, Plaintiff,

v.

HOME DEPOT U.S.A., INC., d/b/a the Home Depot, et al., Defendants.

NO. 4:18-CV-952-A

|

Signed 03/04/2019

Attorneys & Firms

James M. Stanley, Alfred A. Pandolfi, Law Office of James M. Stanley, Fort Worth, TX, for Plaintiff.

Chad L. Farrar, C. Brett Stecklein, Flannery Hoard Nardone, Katherine Phillips Harrison, Mullin Hoard & Brown LLP, Dallas, TX, for Defendant Home Depot USA Inc.

Chad L. Farrar, C. Brett Stecklein, Katherine Phillips Harrison, Mullin Hoard & Brown LLP, Dallas, TX, for Defendant Isaac Kask, Ernest Eugene Lefebre.

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, United States District Judge

*1 Came on for consideration the motion of plaintiff, Lelia Varela, to remand. The court, having considered the motion, the response of defendant Home Depot U.S.A., Inc. d/b/a/ The Home Depot (“The Home Depot”), the reply, the record, and applicable authorities, finds that the motion should be denied.

I.

Background

Plaintiff filed on October 24, 2018, her original petition in the 48th Judicial District Court, Tarrant County, Texas. Doc.1 7 at 1, Exhibit A-2. In her original petition, plaintiff alleged that while she was working in the course and scope of her employment for defendant2 at a Home Depot store, a coworker used a forklift to move a pallet close to plaintiff, and the pallet struck and injured her. Id. at Exhibit A-2, p. 2 ¶¶ 5.1-5.2. She named as defendants The Home Depot and Isaac Kask (“Kask”), whom she alleged was the store manager on duty at the time she reported her injury. Id. at Exhibit A-2, p. 2 ¶ 2.3. Plaintiff made identical allegations of negligence against each of them, and her allegations can be summarized as a claim that they failed to provide her with a safe workplace. See id. at Exhibit A-2, pp. 3-4 ¶¶ 6.1, 7.1.

The Home Depot removed this action to this court by notice of removal filed November 29, 2018. Doc. 1. In its notice of removal, The Home Depot argued that Kask was improperly joined to defeat diversity jurisdiction and that his citizenship should be disregarded. Doc. 7 at 3 ¶ 11, 18. The Home Depot contended that this court has subject matter jurisdiction over this action because, once Kask’s citizenship is disregarded, there is complete diversity of citizenship and the amount in controversy exceeds $75,000, exclusive of interests and costs. Id. at 2 ¶ 8; doc. 32 at 1.

Plaintiff filed on December 11, 2018, an amended complaint naming as a defendant Ernest Lefebre, the coworker she mentioned in her original petition. Doc. 8. On January 4, 2019, she filed a motion to remand and alleged that she, Kask, and Lefebre are Texas citizens, eliminating complete diversity.3 Doc. 16 at 3-4 ¶¶ 7-9.

II.

Grounds of the Motion

Plaintiff contends that The Home Depot has failed to show that Kask and Lefebre were improperly joined, and that the action should be remanded to the state court from which it was removed.

III.

Analysis

A. Joinder of Kask

1. Applicable Legal Principles

*2 A defendant may remove to federal court any state court action of which the federal district court would have original jurisdiction.4 28 U.S.C. § 1441(a). A federal district court has original jurisdiction of all civil actions where the amount in controversy exceeds $75,000, exclusive of interests and costs, and is between citizens of different states. Id. at § 1332(a). In determining whether diversity of citizenship exists, courts disregard the citizenship of parties who were improperly joined. Smallwood v. I11. Cent. R.R., 385 F.3d 568, 577-78 (5th Cir. 2004).

To determine whether a party has been improperly joined, “the court must analyze whether (1) there is actual fraud in pleading jurisdictional facts or (2) the plaintiff is unable to establish a cause of action against the nondiverse defendant.”5 Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007). Because The Home Depot did not allege actual fraud,6 the test for improper joinder is:

whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.

Smallwood, 385 F.3d at 573. The court may answer this question by conducting a “Rule 12(b)(6)-type analysis.” Id. at 573-74.

Federal courts use the federal-court pleading standard when conducting that analysis. Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016). Rule 8(a) (2) of the Federal Rules of Civil Procedure provides, in a general way, the applicable standard of pleading. It requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), “in order to give the defendant fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and ellipsis omitted). Although a complaint need not contain detailed factual allegations, the “showing” contemplated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action. Id. at 555 & n.3. Thus, while a court must accept all of the factual allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported by any factual underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”).

*3 Moreover, to survive a motion to dismiss for failure to state a claim, the facts pleaded must allow the court to infer that the plaintiff’s right to relief is plausible. Id. To allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely consistent with unlawful conduct are insufficient. Twombly, 550 U.S. at 566-69. “Determining whether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Igbal, 556 U.S. at 679.

2. No Plausible Claim Against Kask Was Alleged

To state a plausible negligence claim against a corporate officer or agent, in his individual capacity, the plaintiff must allege that: (1) the officer or agent owed her an independent duty of reasonable care apart from the employer’s duty, or (2) the employer was the officer or agent’s alter ego. See Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). Corporate officers do not owe their employees an independent duty, apart from that of the corporation, to provide them with a safe workplace. Id. at 118. This duty is a nondelegable duty imposed solely on the corporation. Id.

The only duty plaintiff alleged that Kask violated is, in essence, the duty to provide her with a safe workplace. That duty belonged to The Home Depot and could not be delegated to Kask. Therefore, plaintiff never alleged that Kask owed her an independent duty of reasonable care, apart from the one that The Home Depot owed her. As a result, she did not state a claim for relief against him that is plausible on its face. For this reason, Kask was improperly joined, and his citizenship should be disregarded in determining whether this court has diversity jurisdiction. And, for the same reason, plaintiff’s claims against Kask should be dismissed.

B. Joinder of Lefebre

1. Applicable Legal Principles

“If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). It is within the court’s discretion to permit or deny joinder.7 Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). In making this decision, courts consider “the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether plaintiff has been dilatory in asking for amendment, whether plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities.” Id.

2. Joinder of Lefebre Should Be Denied

It appears that plaintiff only joined Lefebre to defeat diversity jurisdiction. She knew the factual basis of her claims against him when she filed suit, but she waited until after removal to make those claims. Plaintiff contends that she did not join him in her original petition because she did not know his last name. Doc. 27 at 8 ¶¶ 22-23. But, she could have sued him as an unknown defendant. See Razo v. Home Depot USA, Inc., No. 4:14-CV-428-A, 2014 WL 3869382, at *3 (N.D. Tex. Aug. 6, 2014). And, she attached to her reply an affidavit that seem, to suggest that her lawyer only sought to research Lefebre’s last name after removal. Doc. 28 at 35. Her timing is also suspicious: she sought to join Lefebre only two weeks after removal. See Mayes v. Rapoport, 198 F.3d 457, 463 (4th Cir. 1999); Alba v. S. Farm Bureau Cas. Ins. Co., No. 3:08-CV-0842-D, 2008 WL 4287786, at *2 (N.D. Tex. Sept. 19, 2008).

*4 Moreover, plaintiff’s conduct suggests that she has been dilatory in amending her complaint. As stated, she apparently delayed her amendment to destroy diversity jurisdiction, and she gave no other credible reason for waiting until after removal to join him. See Bramlett v. Med. Protective Co. of Fort Wayne, Ind., No. 3:09-CV-1596-D, 2010 WL 1491422, at *6 (N.D. Tex. Apr. 13, 2010).

Further, there, is nothing in the record to suggest that denial of joinder might injure her. The court has no reason to believe that she cannot sue him in state court. See id.

For these reasons, the court finds that plaintiff’s joinder of Lefebre should be denied, and that plaintiff’s claims against him should be dismissed.

IV.

Order

The court ORDERS that plaintiff’s motion to remand be, and is hereby, denied.

The court further ORDERS that plaintiff’s claims against Kask and Lefebre be, and are hereby, dismissed without prejudice.

The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of plaintiff’s claims against Kask and Lefebre.

Footnotes

1

The “Doc. ___” references are to the numbers assigned to the referenced items on the docket in this Case No. 4:18-CV-952-A.

2

Plaintiff clarified in her motion to remand that she suffered this injury while she was “in the course and scope of employment with Home Depot.” Doc. 16 at 2 ¶ 2. The court infers that The Home Depot was the defendant to whom she was referring in her original petition.

3

Plaintiff also contends that her claims arise under Texas workers’ compensation laws, making this action non-removable under 28 U.S.C. § 1445(c). Doc. 16 at 8-9 ¶¶ 19-20. But, the only cause of action she alleged is negligence, which arises under Texas common law, not workers’ compensation laws. Rodgers v. R & L Carriers, Inc., No. 3:16-CV-998-B, 2016 WL 3632807, at *2 (N.D. Tex. July 7, 2016) (collecting cases).

4

The removal statute provides, in pertinent part, that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a) (emphasis added).

5

In analyzing these factors, courts consider the allegations made in the plaintiff’s state court petition. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

6

The Home Depot made a threadbare claim, unsupported by any factual allegation or legal argument, that “[t]here is outright fraud in Plaintiff’s pleading of jurisdictional facts to include Kask as a defendant.” Doc. 7 at 3 ¶ 13. The basis of its claim of diversity jurisdiction is that plaintiff failed to state a claim against Kask. Therefore, the court does not consider it that The Home Depot actually intended to allege actual fraud. In any event, it did not allege anything that supports such a claim.

7

The court maintains its discretion to deny joinder under Section 1447(e) even when a plaintiff amends her complaint as of right pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. Mayes v. Rapoport, 198 F.3d 457, 462 n.11 (4th Cir. 1999) (citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987) ); Boyce v. CitiMortgage, Inc., 992 F. Supp. 2d 709, 715-16 (W.D. Tex. 2014) (collecting cases).

United States District Court, N.D. Texas, Dallas Division.

Sergio AGUILAR, Plaintiff,

v.

SERVICE LLOYDS INSURANCE, Defendant.

Civil Case No. 3:18-cv-2415-S-BK

|

Signed 01/28/2019

Attorneys & Firms

Sergio Aguilar, Grand Prairie, TX, pro se.

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

RENEE HARRIS TOLIVER, UNITED STATES MAGISTRATE JUDGE

*1 Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was automatically referred to the United States Magistrate Judge for pretrial management. The Court granted Plaintiff Sergio Aguilar’s motion to proceed in forma pauperis but did not issue process pending judicial screening. Upon review of the relevant pleadings and applicable law, this case should be summarily DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.

I. BACKGROUND

Aguilar claims he injured his left knee and leg while working for a landscaping company in October 2013. Doc. 3 at 2-3. He eventually appealed the workers compensation decision, and the state court granted summary judgment for Defendant Service Lloyds Insurance. See Aguilar v. Service Lloyds Ins. Co., No. DC-16-01742 (192nd Jud. Dist. Ct., Dallas Cty, June 19, 2017), appeal dismissed, No. 05-17-01355-CV, 2018 WL 1008034 (Tex. App.—Dallas Feb. 22, 2018, pet. denied) (mem. op.).1 Aguilar subsequently filed this action alleging fraud and identity theft by Service Lloyds and claiming that he is 80% disabled and needs three more surgeries in his legs. Doc. 3 at 1-3. He also argues that the medical reports and workers compensation payments (compensating him for only a 1% restriction) were fraudulent because they referenced a false social security and claim number. Doc. 3 at 1-3. Aguilar argues that by presenting false documents in the state court review proceedings, Service Lloyds made a mockery of the judicial system. Doc. 3 at 1. He requests that Service Lloyds be ordered to pay him all of his benefits under the correct social security number. Id.

In his Answers to Magistrate Judge’s Questionnaire, Aguilar avers that Service Lloyds “violate[d] Federal and State laws, because they altered medical records ... [and] made use of a false social security number, which is “a punishable offense.” Doc. 14 at 2. He also challenges the state court’s ruling stemming from his Texas workers’ compensation case because false information was presented, his medical records were altered, and false social security and claim numbers were utilized. Doc. 14 at 9. Aguilar states that he is suing Defendant for “$4,500,000 for fraud and identify theft, damages [and] lost time” and for Defendant’s failure “to follow up on my lessions [sic] the past 5 years.” Doc. 14 at 3.

II. ANALYSIS

Before screening an in forma pauperis complaint under 28 U.S.C. § 1915(e), the Court should always examine, sua sponte, if necessary, the threshold question of whether it has subject matter jurisdiction. System Pipe & Supply, Inc. v. M/V Viktor Kurnatovsky, 242 F.3d 322, 324 (5th Cir. 2001); FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Unless otherwise provided by statute, a federal district court has subject matter jurisdiction over (1) a federal question arising under the Constitution, a federal law, or a treaty, see 28 U.S.C. § 1331, or (2) a case where there is complete diversity of citizenship between parties and the matter in controversy exceeds $75,000, see 28 U.S.C. § 1332. “Under the well-pleaded complaint rule, ‘a federal court has original or removal jurisdiction only if a federal question appears on the face of the plaintiff’s well-pleaded complaint; generally, there is no federal jurisdiction if the plaintiff properly pleads only a state law cause of action.’ ” Gutierrez v. Flores, 543 F.3d 248, 251-52 (5th Cir. 2008).

*2 The Court liberally construes Aguilar’s pleadings with all possible deference due a pro se litigant. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting pro se pleadings are “to be liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers”); Cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). Even under this most liberal construction, however, Aguilar has not alleged facts that could be construed to establish federal question or diversity jurisdiction.

The Complaint, as supplemented by the Answers to Magistrate Judge’s Questionnaire, plainly fails to present a federal cause of action, alleging only state law fraud and identity theft claims. Doc. 3 at 1-3; Doc. 14 at 2, 5. Moreover, no matter his dissatisfaction with the state court’s decision related to his workers compensation benefits, Aguilar may not seek recourse in federal court. Doc. 14 at 9. The Rooker-Feldman doctrine2 divests this Court of subject matter jurisdiction to review the denial of workers compensation benefits. See Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000) (holding that by virtue of the Rooker-Feldman doctrine, “ ‘federal district courts, as courts of original jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders of state courts’ ”) (quoting Liedtke v. State Bar, 18 F.3d 315, 317 (5th Cir. 1994) ); Clavo v. Townsend, 544 F. App’x 549, 550-51 (5th Cir. 2013) (per curiam) (affirming dismissal of pro se plaintiff’s federal lawsuit based upon denial of workers compensation benefits).

Moreover, to the extent Plaintiff seeks to allege criminal law violations stemming from the purported identity theft, his request lacks any legal basis and, thus, cannot support a federal cause of action. Criminal statutes do not create a private right of action. For a private right of action to exist under a criminal statute, there must be “a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone.” Cort v. Ash, 422 U.S. 66, 79 (1975), overruled in part by Touche Ross & Co. v. Redington, 442 U.S. 560 (1979); see Suter v. Artist M., 503 U.S. 347, 363 (1992) (the party seeking to imply a private right of action bears the burden to show that Congress intended to create one). Here, Aguilar has pled nothing that even comes close to meeting that burden. Moreover, “decisions whether to prosecute or file criminal charges are generally within the prosecutor’s discretion, and, as a private citizen, [Aguilar] has no standing to institute a federal criminal prosecution and no power to enforce a criminal statute.” Gill v. Texas, 153 F. App’x 261, 262-63 (5th Cir. 2005).

Additionally, as a Texas resident, Aguilar shares the same state of citizenship as the Defendant, Service Lloyds Insurance; thus, there is no diversity jurisdiction. Doc. 14 at 5 (confirming Service Lloyds’ principal business is in Texas). See Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003) (district court cannot exercise diversity jurisdiction if the plaintiff shares the same state of citizenship as any one of the defendants) (citation omitted).

Since the complaint does not present a sufficient basis for federal question or diversity jurisdiction, the Court cannot exercise supplemental jurisdiction over Aguilar’s state law claims. See 28 U.S.C. § 1367(a) (“in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”).

III. LEAVE TO AMEND

*3 Ordinarily, a pro se plaintiff should be granted leave to amend his complaint prior to dismissal, but leave is not required when she has already pled his “best case.” Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009). Here, the facts as alleged by Aguilar clearly demonstrate a lack of subject matter jurisdiction in this Court. In addition, the Court has already given Aguilar the opportunity to supplement the complaint by his Answers to Magistrate Judge’s Questionnaire. Thus, granting leave to amend would be futile and cause needless delay.

IV. CONCLUSION

For the foregoing reasons, this action should be summarily DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(h)(3).

SO RECOMMENDED, on January 28, 2019.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific, an objection must identify the finding or recommendation to which objection is made, state the basis for the objection, and indicate the place in the magistrate judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).

Footnotes

1

The Dallas County docket sheet for Case No. DC-16-01742 is available at https://courtsportal.dallascounty.org/DALLASPROD/Home/WorkspaceMode?p=0 (Last accessed on Jan. 25, 2019).

2

This doctrine takes its name from two Supreme Court decisions: District of Columbia, Court of Appeals v. Feldman, 460 U.S. 462 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

United States District Court, N.D. Texas, Dallas Division.

Paul O. MOORE, Plaintiff,

v.

AVIS BUDGET CAR RENTAL, LLC, Defendant.

Civil Action No. 3:17-CV-1449-N-BH

|

Signed 11/05/2018

Attorneys & Firms

Paul O. Moore, Lancaster, TX, pro se.

Aaron M. Pool, Andrew J. Pratka, Donato Minx Brown & Pool PC, Houston, TX, for Defendant.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE

*1 By Special Order No. 3-251, this case was referred for full case management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions. Before the Court for recommendation is Defendant’s Motion for Final Summary Judgment, filed May 31, 2018 (doc. 14). Based on the relevant filings and applicable law, the motion should be GRANTED.

I. BACKGROUND

Paul O. Moore (Plaintiff) sues his former employer, Avis Budget Car Rental, LLC (Defendant), to recover monetary damages for physical injuries he sustained on the job. (doc. 1-2.)

On April 29, 2015, Plaintiff’s manager instructed him to retrieve one of Defendant’s rental vehicles, a Kia Soul (Kia), that was stranded at an offsite location. (Id. at 2.)1 Plaintiff asked if he could call roadside assistance to have the Kia towed, but his manager denied the request and told him to drive the vehicle back to the rental location. (Id.) While Plaintiff was driving the Kia, the driver’s side airbag deployed, and he sustained multiple injuries to his face and body, for which he sought medical treatment. (Id.) After the accident, Plaintiff subscribed to Texas workers’ compensation insurance and received workers’ compensation benefits for his medical claim. (docs. 15-3 at 5-10; 15-4 at 3, 19, 21).

On April 28, 2017, Plaintiff filed suit in the 116th District Court of Dallas County, Texas (Cause No. DC-17-04956). (doc. 1-2.) Defendant filed its answer to the complaint on May 25, 2017, and asserted various affirmative defenses, including statutory preclusion under § 408.001(a) of the Texas Labor Code. (doc. 1-4 at 2.) On June 1, 2017, Defendant removed Plaintiff’s action to this court on the basis of diversity jurisdiction. (doc. 1.)

On May 31, 2018, Defendant moved for summary judgment. (doc. 14.) Plaintiff filed his response on June 11, 2018 (doc. 17), and Defendant filed its reply on July 5, 2018. (doc. 26.) This motion is now ripe for consideration.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. The movant makes a showing that there is no genuine issue of material fact by informing the court of the basis of its motion and by identifying the portions of the record that reveal there are no genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In a case in which “the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). This is a “heavy” burden for movant. Copeland v. D&J Constr. LLC, No. 3:13-CV-4432-N-BH, 2016 WL 1212128, at *2 (N.D. Tex. Feb. 16, 2016), adopted by, 2016 WL 1182620 (N.D. Tex. Mar. 28, 2016). Once the movant makes this showing, the non-movant must then direct the court’s attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex Corp., 477 U.S. at 324. To carry this burden, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-movant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.

*2 “The parties may satisfy their respective burdens by ‘citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions, interrogatory answers, or other materials.’ ” Rooters v. State Farm Lloyds, 428 F. App’x 441, 445 (5th Cir. 2011) (citing FED. R. CIV. P. 56(c)(1) ). While all of the evidence must be viewed in a light most favorable to the motion’s opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970) ), neither conclusory allegations nor unsubstantiated assertions satisfy the non-movant’s summary judgment burden, Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion’s opponent fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

Generally, the courts liberally construe the pleadings of a pro se plaintiff. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981). But the courts have no obligation under Rule 56 “to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Adams v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006) (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) ). Instead, a party opposing summary judgment must “identify specific evidence in the record” that supports the challenged claims and “articulate the precise manner in which that evidence supports [a challenged] claim.” Ragas, 136 F.3d at 458 (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) ).2

III. ANALYSIS

Defendant moves for summary judgment on the ground that Plaintiff’s claim is precluded by the exclusive remedy provision of the Texas Workers’ Compensation Act (TWCA). (doc. 15 at 3.)

A. Exclusive Remedy Defense

The TWCA “provides the exclusive remedy for injuries sustained by an employee in the course of his employment as a result of his employer’s negligence.” 102 F.3d 199, 203 (5th Cir. 1997); TEX. LAB. CODE § 408.001(a) (West 2015) (“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.”). To avail itself of this protection, the employer must be a subscriber under the TWCA, meaning it “either obtained an approved insurance policy or secured the payment of compensation through self-insurance as provided under the [TWCA].” Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 137 (Tex. 2003) (citing TEX. LAB. CODE § 401.011(44) ); Thawar v. 7-Eleven, Inc., 165 F. Supp. 3d 524, 531 (N.D. Tex. 2016). The injury sustained by the employee must also have occurred during the course and scope of his employment, including when “the employee is directed in the employee’s employment to proceed from one place to another place.” TEX. LAB. CODE § 401.011(12)(A)(iii).

Defendant submits the declaration of Peter Miller, the Central Area Safety Manager of Avis Budget Group, Inc., which states “[a]s of April 29, 2015, [Defendant] was a subscribing employer to a workers’ compensation policy of insurance valid under the [TWCA].” (doc. 15-4 at 3.) A copy of the workers’ compensation policy by American Casualty Company of Reading, PA (CNA) shows the policy applied to workers in Texas. (Id. at 3, 6-7.) The declaration avers that Plaintiff was employed by Defendant at the time of the accident, after which Plaintiff submitted a workers’ compensation claim to CNA and received medical treatment and income benefits for his work-related injuries. (Id. at 3, 9-10, 12-17.) Defendant also included a copy of CNA’s Acknowledgment of Initial Report of Loss. (Id. at 21.)

*3 Defendant has presented competent summary judgment evidence showing that it was subscribed to Texas workers’ compensation insurance on the date of Plaintiff’s injury; his injury was sustained in the course and scope of employment; and he received medical and income benefits through Defendant’s workers’ compensation insurer. (See doc. 15-4.) Because it has presented competent summary judgment evidence on each of the necessary elements for its exclusive remedy defense under the TWCA, Defendant has met its summary judgment burden. Fontenot, 780 F.2d at 1194; Cf. Bank Of Louisiana v. Aetna U.S. Healthcare Inc., 468 F.3d 237, 242 (5th Cir. 2006) (explaining that when a summary judgment motion is based on the affirmative defense of statutory preemption, the moving party has the burden of proving all the elements of that defense). Accordingly, the burden shifts to Plaintiff to identify evidence in the record that raises a genuine issue of material fact. Celotex, 477 U.S. at 322-24; Little, 37 F.3d at 1075.

Plaintiff does not dispute any of the facts or evidence presented by Defendant for its exclusive remedy defense under the TWCA. Instead, he argues for the first time that the circumstances surrounding his injury were “intentional” because Defendant and his manager knew that the Kia “had problems.” (doc. 17 at 2.)3

B. Intentional Torts Exception

The TWCA does not bar claims against an employer for intentional torts. Bradley v. Phillips Petroleum Co., 527 F. Supp. 2d 625, 641 (S.D. Tex. 2007), aff’d sub nom., 337 F. App’x 397 (5th Cir. 2009). Moreover, “only truly intentional torts fall outside the exclusive remedies regime of the TWCA.” Id. (citing Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985) ) (“[T]he common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.”) “The fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury is the specific intent to inflict injury.” Reed Tool Co., 689 S.W.2d at 406. In certain cases, “the intent to injure can be inferred from the acts alleged, e.g., ... a physical beating.” Bradley, 527 F. Supp. 2d at 643-44 (quoting Durbin v. City of Winnsboro, 135 S.W.3d 317, 324 (Tex.App.-Texarkana 2004, pet. denied) (holding that allegations that the defendant failed to fix mechanical defects and operated a plant with disregard to human safety may show that it “behaved immorally, unethically, grossly negligently, or recklessly, but do not suggest that [the defendant] intentionally blew up its own plant with the intent to injure [the plaintiffs] specifically”) ).

*4 Plaintiff may avoid summary judgment only if he brings forward evidence demonstrating that a genuine issue of material fact exists as to his intentional tort claim. Davidson v. FMC Technologies, Inc., 2016 WL 3944765, at *8 (S.D. Tex., Jul. 7, 2016) (citing id.). He provides no supporting evidence or facts beyond bald, unsubstantiated and unsworn allegations of intentional conduct, however.4 See Forsyth, 19 F.3d at 1533 (holding that “unsubstantiated assertions are not competent summary judgment evidence”). He claims that his manager and Defendant knew that the Kia “had problems,” but he does not allege, much less present evidence showing, that they wanted him to be injured from driving the Kia, or that they were substantially certain that he would be injured as a result of that work assignment. Curlee v. United Parcel Serv., Inc. (Ohio), No. 3:13-CV-00344-P, 2014 WL 11516540, at *4 (N.D. Tex. Aug. 29, 2014) (quoting Reed Tool, 689 S.W.2d at 406) (“To show that an action is excluded from the TWCA, [the plaintiff] must show that ‘the actor desire[d] to cause consequences of his act, or that he believe[d] that the consequences are substantially certain to result from it.’ ”). Even if liberally construed as an amendment to his complaint, Plaintiff’s conclusory allegations of intent are not sufficient to demonstrate a genuine issue of material fact regarding whether the intentional tort exception to the TWCA’s exclusive remedy defense is applicable.5 Because Plaintiff presents no evidence to suggest that the injury he suffered was the result of any intentional conduct, he has failed to meet his summary judgment burden. See, e.g., IV. RECOMMENDATION

Defendant’s motion for summary judgment should be GRANTED, and Plaintiff’s claims against Defendant should be DISMISSED with prejudice.

SO RECOMMENDED on this 5th day of November, 2018.

Attachment

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

______________________________

IRMA CARRILLO RAMIREZ

UNITED STATES MAGISTRATE JUDGE

Footnotes

1

Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers at the bottom of each filing.

2

Plaintiff’s sworn complaint may serve as competent summary judgment evidence “to the extent that it comports with the requirements of Fed. R. Civ. P. 56(e).” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994); accord Barnes v. Johnson, 204 F. App’x 377, 378 (5th Cir. 2006).

3

Because Plaintiff is proceeding pro se, his pleadings are to be provided “a liberal construction.” Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012). As a general rule, “[a] claim which is not raised in the complaint, but, rather is raised only in response to a motion for summary judgment is not properly before the court.” Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005); see also Hoffman v. L & M Arts, 838 F.3d 568, 576 (5th Cir. 2016) (“[A] district court considering a defendant’s motion for summary judgment does not err by disregarding a theory of liability asserted in the plaintiff’s response that was not pleaded as required by the applicable pleading standard.”). Nevertheless, the Fifth Circuit has held that courts should construe new theories in a summary judgment response as a motion to amend. Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008); Debowale v. U.S. Inc., 62 F.3d 395 (5th Cir. 1995) (per curiam) (holding that “[t]he district court should have construed [the plaintiff’s] Bivens claim, raised for the first time in his response to the summary judgment motion, as a motion to amend the complaint under [Rule] 15(a) and granted it”); Cash v. Jefferson Assocs., Inc., 978 F.2d 217, 218 (5th Cir. 1992) (deciding that a response to a motion to dismiss in which plaintiff first alleged that she had been willfully discriminated against should be treated as a motion to amend). “This is particularly true where ... the litigant is pro se and has not yet made any amendments to her complaint.” Riley v. Sch. Bd. Union Par., 379 F. App’x 335, 341 (5th Cir. 2010).

4

Plaintiff’s unverified response contains factual statements that were not included in his verified complaint. Attorneys and pro se litigants alike must strictly comply with the requirement of sworn statements, and courts should require correction of any deficiencies in supporting papers that they intend to rely on as evidence. See Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980) (per curiam). Because Plaintiff’s response is not verified or sworn, the court cannot consider or rely on the allegations in it as competent summary judgment evidence. Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1994) (“Unsworn pleadings, memoranda or the like are not, of course, competent summary judgment evidence.”) (citation omitted).

5

Also for the first time in his response, Plaintiff asserts a claim for punitive damages. (doc. 17 at 2). Under the TWCA, a statutory exception to the exclusive-remedy provision exists if an employee’s death is caused by an intentional act or omission or by gross negligence. TEX. LAB. CODE § 408.001(b); Port Elevator-Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). Because Plaintiff’s injury was not fatal, this exception does not apply, and any claim for punitive damages is also foreclosed under the TWCA.

United States District Court, N.D. Texas, Amarillo Division.

Eddie PIKULIN, Plaintiff,

v.

ASARCO, LLC, Defendant.

2:18-CV-4-D

|

Signed 11/05/2018

Attorneys & Firms

David M. Russell, Templeton Smithee Hayes Heinrich & Russell, Amarillo, TX, for Plaintiff.

Jennette E. DePonte, James Eamonn Sherry, Jennifer Laurel Murphy, McCathern PLLC, Dallas, TX, for Defendant.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO DENY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE

*1 Before the Court is Asarco’s Motion for Summary Judgment, filed on August 6, 2018. Asarco’s Motion raises two questions: (1) whether Asarco owed Pikulin a duty, and (2) whether Pikulin can offer the proximate cause testimony Texas law requires. Because the Court finds there is a genuine issue of material fact as to both, the Court recommends that the motion be DENIED.

I. FACTUAL BACKGROUND1

It is undisputed that Plaintiff Edward Pikulin was an employee of Defendant Asarco, LLC and was injured in the course and scope of his employment when he tripped and fell over a chain while working on an overhead crane. [ECF 23 at 7; 18 at 1]. According to Pikulin, his workspace is covered with a magnesium sulfate powder that turns everything gray and makes it difficult to differentiate between the floor and tools. [ECF 23 at 7]. Crews are required to replace tools and equipment before leaving their shift. [ECF 23 at 7]. Pikulin expected the previous crew had done so, but it had not. [ECF 23 at 7]. Pikulin began working on the crane that day with his ventilator and safety goggles on. [ECF 23 at 7]. This equipment restricted his vision. [ECF 23 at 7]. Pikulin was provided no assistance as he performed this task, which required him to look somewhere other than where he was walking. [ECF 23 at 9]. He did not have tools or equipment to protect him, other than the ventilator and goggles that obstructed his vision. [ECF 23 at 11]. As he began backing up, eyes ahead and upward on the crane, he tripped over a chain that was lying on the floor behind him and sustained injuries. [ECF 23 at 4, 7].

Pikulin filed suit against Asarco for negligence. Specifically, Pikulin alleges Asarco was negligent under the following theories:

(1) failure to ensure employees followed its safety policies;

(2) failure to adequately train employees;

(3) failure to enforce its safety policies;

(4) failure to adequately supervise employees;

(5) failure to provide adequate assistance to Pikulin; and

(6) failure to warn Pikulin of a dangerous condition.

[ECF 21 at 2].

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the pleadings, affidavits, and other summary judgment evidence show that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Asarco can meet its summary judgment burden by pointing the Court to the absence of admissible evidence to support the claim in question. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If Asarco meets this burden, Pikulin must do more than merely rely on his pleadings and must point the Court to specific facts that show a genuine issue for trial. Id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). A dispute of a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Pikulin’s failure to produce proof as to any essential element of his negligence claim renders all other facts immaterial and summary judgment mandatory. See TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.); Little, 37 F.3d at 1076.

III. ASARCO’S GROUNDS FOR SUMMARY JUDGMENT

*2 Asarco moves for summary judgment on two grounds. First, Asarco claims it is entitled to summary judgment because Pikulin has failed to raise a genuine issue of material fact as to duty. [ECF 18 at 1]. Second, Asarco claims that it is entitled to summary judgment because Texas law requires expert testimony on the issue of causation when the plaintiff has a preexisting condition. [ECF 18 at 1]. More specifically, Asarco argues summary judgment is appropriate because Pikulin suffers from “degenerative shoulder conditions” and has offered no expert testimony on causation. [ECF 18-1 at 8]. Within this same argument, Asarco broadly asserts that Pikulin has missed “the deadline” for designating an expert as to causation but does not specify which deadline. See [ECF 18-1 at 8].

Asarco’s first ground for summary judgment calls into question two different types of duties that Pikulin pleaded—premises-liability duties and safe workplace duties. Within its Motion, Asarco relies heavily on Pikulin’s alleged awareness of the dangerous condition. [ECF 18-1 at 7–8]. As will be discussed below, the Texas Workers’ Compensation Act (“TWCA”) and recent Texas case law make clear that Pikulin’s awareness of a dangerous condition is relevant to the existence of a duty, but only a premises-liability duty. For this reason, the Court will separately analyze the two types of duties Asarco challenges.

IV. THE ROLE OF THE TEXAS WORKERS’ COMPENSATION ACT IN THE COURT’S ANALYSIS

It is undisputed that Asarco did not have workers’ compensation insurance coverage at the time Pikulin was injured. [ECF 18 at 4; 23 at 5]. A brief note on the role of the TWCA is nonetheless required.

[The TWCA] was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment.... The act relieves employees of the burden of proving their employer’s negligence, and instead provides timely compensation for injuries sustained on-the-job.... In exchange for this prompt recovery, the act prohibits an employee from seeking common-law remedies from his employer, as well as his employer’s agents, servants, and employees, for personal injuries sustained in the course and scope of his employment.

Odom, No. 3:13–cv–579, 2014 WL 585329, at *2 (quoting Austin v. Kroger Tex. L.P., 406.002. This Court has previously explained the nature of an employer’s options under the TWCA:

When they opt-out, they are considered a ‘non-subscribing employer,’ and they forgo certain benefits provided by the TWCA. In particular, the TWCA vests employees of non-subscribing employers with the right to sue their employers for work-related injuries, and the TWCA deprives the non-subscribing employer of the traditional common law defenses of contributory negligence, assumption of risk, and the fellow-servant rule.

Odom, No. 3:13–cv–579, 2014 WL 585329, at *2.

Despite this “waiver” of defenses, a nonsubscribing employer generally owes no duty to warn employees of dangers that are commonly known, open and obvious, or already appreciated by the employee. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203, 210–11 (Tex. 2015). Pikulin asserts Asarco had a duty to warn him of a dangerous condition and failed to do so. [ECF 21 at 2]. Pikulin also argues that evidence of his negligent acts and violation of the safety rules is irrelevant because nonsubscribing employers like Asarco waive any contributory negligence defense. [ECF 23 at 5]. To be clear, a nonsubscribing employer can negate a duty to warn by offering evidence that the employee was aware of the condition, even though such evidence may touch on contributory negligence and assumption of the risk, defenses a nonsubscribing employer cannot raise. See Austin, 465 S.W.3d at 211 (noting that an employee’s awareness of an unreasonable danger and risk may be relevant to prohibited defenses, but nonetheless permit a nonsubscribing employer to avoid liability, because such an awareness also bears on the existence of a duty and the TWCA does not eliminate an employee’s burden to establish a duty). Pikulin’s awareness of the chain on the floor is relevant in determining whether Asarco owed Pikulin any premises-liability duty to warn of a dangerous condition, but such evidence cannot negate safe workplace duties.

V. DISTINGUISHING BETWEEN PREMISES-LIABILITY DUTIES AND SAFE WORKPLACE DUTIES

*3 This Court has previously described the three “species” of negligence claims that an employee injured at work may assert against an employer. See Odom, No. 3:13–cv–579, 2014 WL 585329, at *3. This case involves two of those three types of claims—the “premises liability” type claim and the “safe workplace” type claim. At the outset, it is beneficial to distinguish the two types of claims and the duties involved. A recent case, Advance Tire & Wheels, LLC v. Enshikar, explains the difference:

Just as landowners owe a premises-liability duty to invitees on their premises, employers have a duty to provide their employees with a reasonably safe workplace. E.g., Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 201–02 (Tex. 2015). But employers’ duties to their employees in this regard are broader than their premises-liability duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the employer is, or reasonably should be, aware but the employee is not. See id. at 203. The additional responsibilities of an employer to its employees include “a duty to provide necessary equipment, training, or supervision.” Id. at 215; see also Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008). Advance Tire argues that Enshikar’s expertise or knowledge about repairing tires negated its premises-liability duty to warn him about a danger of which he already was aware, but that argument does not foreclose an employer’s duty to provide necessary instrumentalities to safely perform the work.

Advance Tire & Wheels, LLC v. Enshikar, 527 S.W.3d 476, 480 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

Recalling Pikulin’s theories of negligence set out above, his arguments fall into these two categories. He first alleges several “safe workplace” theories of negligence—failure to ensure employees followed safety policies, failure to adequately train employees, failure to enforce safety policies, failure to adequately supervise employees, and failure to provide adequate assistance. His last alleged theory of negligence is of the premises-liability type—failure to warn of a dangerous condition. With the duties’ difference of scope in mind, the Court proceeds to its analysis.

VI. DUTY

Whether a duty exists in a negligence case is a question of law for the court to decide from the facts surrounding the occurrence in question. Austin v. Kroger Tex., L.P., A. Premises-Liability Duty

An employer has the same premises-liability duty to its employees as other landowners have to invitees on their premises. Austin, 465 S.W.3d at 201–02. An employer has a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the employer is, or reasonably should be, aware but the employee is not. See id. (internal citations omitted). Employers have no premises-liability duty to protect or warn an employee against unreasonably dangerous premises conditions that are open and obvious or otherwise known to the employee. Id. at 214.

Asarco does not point the Court to a lack of specific evidence that the chain on the floor was not an unreasonably dangerous condition. Instead, Asarco argues it is entitled to summary judgment because the evidence shows that Pikulin was injured by an open and obvious condition while performing routine work. [ECF 18 at 8]. Asarco relies on Kroger v. Elwood, to conclude that it had no duty to protect Pikulin from injury that resulted from the performance of routine duties, unless the work is unusually precarious. 197 S.W.3d 793, 795 (Tex. 2006). [ECF 18 at 7]. Its motion further states that no duty exists because Pikulin was armed with knowledge of safety policies, training, and work instructions that would have prevented his injuries. [ECF 18 at 8]. Asarco cites the Texas Supreme Court’s decision in Austin v. Kroger, which it states negates a finding of duty when a dangerous condition is obvious. 465 S.W.3d at 203. [ECF 18 at 8].

*4 Pikulin responds by stating the chain was not open and obvious, despite the task’s routine nature, because:

(1) his vision is impaired by the magnesium sulfate powder that covers his workspace and turns everything gray;

(2) the ventilator and safety goggles required to perform the task also impair his vision; and

(3) the task itself requires him to look at the crane thirty feet above him and exposes him to tripping hazards he cannot see.

[ECF 23 at 7–10].

Viewing the evidence in the light most favorable to Pikulin, there is a genuine issue of material fact as to whether Asarco owed him a duty to make the premises safe or warn him of the chain on the floor. Asarco’s argument it owed no duty to Pikulin because he was performing routine work does little, if anything, to negate a premises-liability duty. The routine nature of a job will tend to negate a duty to protect or warn an employee when the dangerous condition is also so routinely encountered that it is open and obvious, or the employee knows of the condition by virtue of the routine basis on which the employee encounters it. However, the routine nature of the task is not dispositive when determining whether a dangerous condition is open and obvious. The focus of the inquiry is the condition itself. A task can be routine without routinely presenting a dangerous condition.2

Pikulin has pointed the Court to specific facts that present a genuine issue for trial regarding whether Asarco had a duty to make safe or warn him of the chain on the floor. Based on Pikulin’s affidavit, a jury could reasonably conclude the chain was an unreasonably dangerous condition that was not open and obvious because of the condition of the workspace and the safety equipment he was wearing. [ECF 24-1 at 1–4]. Pikulin has also presented a genuine issue of material fact as to whether the “necessary use” exception applies. The “necessary use” exception applies when the facts demonstrate that: (1) it was necessary that the employee use the unreasonably dangerous premises, and (2) the employer should have anticipated that the employee was unable to avoid the unreasonable risks despite the employee’s awareness of them. Austin, 465 S.W.3d at 207. Based on Pikulin’s affidavit, a jury could reasonably conclude the task he was performing at the time he was injured required him to use an unreasonably dangerous premise because his workspace included heavy machinery and tripping hazards. [ECF 24-1 at 1–4]. A jury could further conclude from that Asarco should have anticipated Pikulin could not avoid the risks, even if he were aware of them, because Asarco assigned the task that prevented Pikulin from watching where he was walking. [ECF 24-1 at 2].

B. Safe Workplace Duties

*5 An employer has a nondelgable and continuing duty to provide its employees a safe workplace. Advance Tire & Wheels, 527 S.W.3d at 480–81; see Austin, 465 S.W.3d at 201 (noting the duty to provide a safe workplace always exists, despite the obviousness of a danger or an employee’s awareness of it). This Court has noted the specific duties born from the broad duty to provide a safe workplace. See Odom, No. 3:13–cv–579, 2014 WL 585329, at *4. Texas courts have stated an employer has the duty to hire competent co-employees, to provide safety regulations, to provide needed safety equipment or assistance, to warn employees of the hazards of their employment, to supervise them, and to furnish reasonably safe instrumentalities with which employees are to work. See General Electric Co. v. Moritz, 257 S.W.3d 211, 215 n. 15 (Tex. 2008) (collecting cases); Central Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 652 & n. 10 (Tex. 2007) (duty to provide safe workplace, duty to hire competent co-employees, and duty to provide safety regulations); Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam) (duty to warn employees of hazards of employment and duty to provide safety equipment or assistance); Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975) (duty to supervise employees’ activities, duty to furnish reasonably safe place in which to labor, and duty to furnish reasonably safe instrumentalities with which employees are to work), overruled on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512, 516–17 (Tex. 1978).

With respect to the safe workplace duties Pikulin asserts, Asarco’s Motion challenges the duty to adequately train and instruct employees.3 Pikulin asserts Asarco failed to train its “employees.” [ECF 21 at 2]. Asarco moves for summary judgment on the ground that Pikulin was provided “policies, training, and work instructions.” [ECF 18-1 at 8]. Based on the Supervisors Accident Investigation Report, a jury could reasonably conclude that Asarco’s employees, including Pikulin, were not adequately trained. [ECF 24-1 at 47–49]. Asarco’s own review of the incident states that “inadequate work standards” were a “basic/root cause” of the incident and that action plans need to be reviewed with the employees on a regular basis. [ECF 24-1 at 47–48]. The Court finds Asarco has not met its summary judgment burden as to Pikulin’s safe workplace duties. Thus, the undersigned recommends that Asarco’s motion for summary judgment on the element of duty be denied.

VII. EXPERT TESTIMONY REGARDING CAUSATION

A. Determining the Need for Expert Testimony

As its second ground for summary judgment, Asarco states it is entitled to summary judgment because Pikulin has no expert testimony as to whether “pre-existing degenerative shoulder conditions ... could have caused or contributed to his reported symptoms.” [ECF 18-1 at 8]. The Court looks to Texas law to determine whether a Plaintiff is required to present expert testimony on causation to avoid judgment as a matter of law. See Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th Cir. 2004). Under Texas law, lay testimony is adequate to prove causation when general experience and common sense enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition. Id. (citing Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) ). “Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.” Id. To determine whether lay testimony is sufficient to prove causation, Texas courts look at the nature of the lay testimony and the nature of the injury. Id.

*6 Texas courts have not required expert testimony to prove medical causation when the plaintiff has immediate subjective awareness of injury at or about the time of the causative event, such that the causal relationship is obvious or can be inferred. Qualls v. State Farm Lloyds, 226 F.R.D. 551, 556 (N.D. Tex. 2005); see Morgan, 675 S.W.2d at 733 (plaintiff experienced respiration problems and swelling immediately after exposure to fumes); Blankenship v. Mirick, 984 S.W.2d 771, 776 (Tex. App.—Waco 1999, pet. denied) (plaintiff experienced pain in knees after collision shoved knees into dashboard); Dawson v. Briggs, 107 S.W.3d 739, 754 (Tex. App.—Fort Worth 2003, no pet.) (plaintiff experienced pain in jaw following auto accident).

For example, in Fidelity & Guaranty Ins. Underwriters, Inc. v. La Rochelle, a case involving a pre-existing injury and a subsequent workplace injury, plaintiff claimed she injured her back while playing ping pong at work. 587 S.W.2d 493, 494 (Tex. App.—Dallas 1979, writ dism’d). Nine months prior to the injury at issue, plaintiff was diagnosed with a protruding disc. Id. The evidence showed that after the ping pong game, she experienced pain in her lower back and was again treated for a disc condition. Id. The court concluded that expert testimony was not required because “the jury should be entitled to decide causation with or without medical testimony in areas of common experience.” Id. at 496.

In cases where the facts surrounding causation tend to raise a “question of science” Texas courts have stated lay testimony is insufficient to prove causation. See State Office of Risk Mgt. v. Adkins, 347 S.W.3d 394, 401 (Tex. App.—Dallas 2011, no pet.) (citing Insurance Co. of N. Am. v. Myers, 411 S.W.2d 710 (Tex. 1966) and noting that “whether a preexisting tumor was activated and the effects of malignancy accelerated is a question of science” that requires medical expert testimony). This Court has previously noted the need for expert testimony as to causation in a case involving “the evolution of a disease process” as opposed to a case involving “subjective awareness of injury resulting from blunt force trauma in a car wreck” where the causal relationship is obvious and can be inferred. See Qualls, 226 F.R.D. at 559.

Asarco moves for summary judgment claiming Pikulin is required to offer expert testimony regarding causation because he suffers from a pre-existing condition, arthritis, but has offered none. [ECF 18-1 at 6–7]. Pikulin responds by stating that he has identified his treating physicians as nonretained expert witnesses who will be called at trial to testify regarding causation. [ECF 23 at 12]. In reply, Asarco seems to argue summary judgment is appropriate on all of Pikulin’s claims except those involving his shoulder because Pikulin offered no evidence on any other body part in his response. [ECF 28 at 2].

A brief, but closer, look at Asarco’s Motion for Summary Judgment and reply is required. Asarco moved for summary judgment based on a lack of expert testimony as to whether “pre-existing degenerative shoulder conditions ... could have caused or contributed to his reported symptoms.” [ECF 18-1 at 8]. It now contends that Pikulin has not offered evidence as to any other part of his body and “admits that his shoulder is the only part of the body that [he] may offer evidence about.” [ECF 28 at 2]. “[S]eeking summary judgment on a ground not raised in the motion but instead raised for the first time in a reply brief is impermissible.” Odom, No. 3:13–cv–579, 2014 WL 585329, at *11 (internal citations omitted). Asarco moved for summary judgment based on a lack of evidence as to the element of causation, and specifically, the absence of requisite expert testimony regarding whether Pikulin’s “degenerative shoulder conditions” could have caused the injuries in question. [ECF 28 at 2]. It did not move for summary judgment based on a lack of lay testimony as to any cause of an injury and did not make any claims that expert testimony is required on anything other than the issue of whether Pikulin’s “pre-existing degenerative shoulder conditions” could have caused his injuries. The Court will not consider Asarco’s new argument seeking summary judgment on every injury except a shoulder injury, which was raised in its reply.

*7 Assuming arguendo that Texas law requires Pikulin to offer expert testimony regarding causation of his claimed shoulder injury, he has done so. Based on Dr. Session’s affidavit, a jury could reasonably conclude that Pikulin’s pre-existing condition did not cause a partial rotator cuff tear in his right shoulder, but rather, catching himself with his right arm when he fell at work caused the injuries. [ECF 24-1 at 50–51].

B. Deadline for Designating Nonretained Experts

As another ground for summary judgment, Asarco appears to broadly assert that Pikulin has missed “the deadline” for designating an expert as to causation but does not specify which deadline. See [ECF 18-1 at 8]. The Court will briefly address Asarco’s contention that Pikulin failed to meet the deadline to designate an expert as to causation, to the extent it is raised in its Motion for Summary Judgment. See [ECF 18-1 at 8]. It is undisputed that Pikulin did not designate retained testifying experts on the issue of causation, but instead intends to call two previously identified treating physicians. See [ECF 23 at 11]. “The trend among district courts in [this] Circuit is toward applying Rule 26(a)(2)(C) to such ‘treating physician’ experts.” McCranie v. Home Depot U.S.A., Inc., No. 4:15-cv-423-ALM-CAN, 2016 WL 7626597, at *6 (E.D. Tex. Aug. 25, 2016).

Federal Rule of Civil Procedure 26(a)(2)(B)–(C) provides a mandatory framework for disclosure of experts in federal court. See id.; Fed. R. Civ. P. 26(a)(2)(A). Under Rule 26, nonretained experts need only provide a disclosure stating “(i) the subject matter on which the [expert] is expected to present evidence ... and (ii) a summary of the facts and opinions to which the [expert] is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). As to all experts, the parties “must make these disclosures at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).

The Court’s Original Rule 16 Scheduling Order filed on January 9, 2018, stated parties seeking affirmative relief must provide their Rule 26(a)(2) disclosures by May 7, 2018, and parties opposing affirmative relief must make their Rule 26(a)(2) disclosures by May 29, 2018. [ECF 6]. On April 9, 2018, Pikulin filed a document titled “Plaintiff’s Designation of Expert Witnesses.” [ECF 8]. Dr. Sessions and Dr. Smith are both listed as having knowledge of “injuries and damages.” [ECF 8 at 2]. On April 20, 2018, Asarco filed a document titled “Defendant’s Designation of Expert Witnesses” that includes a list of nonretained experts. [ECF 9 at 2]. Asarco also lists the same two doctors - Dr. Sessions and Dr. Smith - as nonretained experts “with knowledge of Plaintiff’s treatment and alleged injuries.” Asarco does not raise an issue as to the sufficiency of Pikulin’s disclosures in its motion or reply. To the extent Asarco seeks summary judgment on the ground Pikulin failed to meet the May 7, 2018 deadline to make the requisite disclosures, summary judgment should be denied.

VIII. RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that Defendant’s Motion for Summary Judgment [ECF 18-1] be DENIED.

IX. INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

* NOTICE OF RIGHT TO OBJECT *

*8 Any party may object to these proposed findings, conclusions and recommendation. In the event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is fourteen (14) days from the date of filing as indicated by the “entered” date directly above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also FED. R. CIV. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988).

Footnotes

1

In deciding this motion, the Court views the evidence in the light most favorable to Pikulin as the summary judgment nonmovant and draws all reasonable inferences in his favor. Odom v. Kroger Tex., L.P., No. 3:13–cv–579, 2014 WL 585329, at n.1 (N.D. Tex. Feb. 14, 2014) (Fitzwater, C.J.).

2

The Court notes that Asarco has attached its Safety & Health Rulebook as summary judgment evidence. [ECF 18-2 at 62–196]. Specifically, Asarco cites page 72 of the Rulebook, which states employees must report hazardous conditions to the employer immediately. [ECF 18-2 at 72]. Although the Court can consider facts that show Pikulin was aware of the chain, simply pointing the Court to a rule that shifts the burden of identifying dangerous conditions to its employees does not negate either type of duty. Further, the highlighted rules on page 72 seem to apply only if the employee notices a dangerous condition. Whether Pikulin saw the chain is the very fact at issue.

3

The Court notes that Pikulin did not specifically plead that Asarco failed to “instruct” him in the safe use and handling of equipment. However, Asarco’s brief mentions the duty to instruct. [ECF 18-1 at 5, 8]. Under Texas law, the duty to “instruct employees in the safe use and handling of products and equipment used in and around an employer’s premises” is an “offshoot” of the duty to provide a safe workplace. See Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex. App.—Dallas 2005, pet. denied). Substantively, Asarco makes the same argument regarding the duty to instruct and the duty to train and relies on the same evidence to negate both. [ECF 18-1 at 8]. The Court will analyze the two together.

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