Dortch v. Memorial Herman Healthcare System-Sw

525 F.Supp.2d 849

Kenneth DORTCH, Plaintiff, v. MEMORIAL HERMAN HEALTHCARE SYSTEM SOUTHWEST, Defendant.

Civil Action No. H-06-2962.

United States District Court, S.D. Texas, Houston Division.

November 28, 2007.

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Ike N.A. Waobikeze, Waobikeze & Associates, P.C., Houston, TX, for Plaintiff.

Shauna Johnson Clark, Jaclyn Adele Schmitt Hermes, Kristina C. Frankel, Fulbright & Jaworski LLP, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

Pending before the Court in this employment discrimination case is a Motion for Summary Judgment ("Motion") [Doc. # 271 filed by Defendant Memorial Hermann Hospital System ("Memorial Hermann").¹ Plaintiff Kenneth Dortch has responded [Doc. # 31]² and Memorial Hermann has replied [Doc. # 32]. The Court has considered these documents, all pertinent matters of record, and applicable legal authorities. The Court concludes that Defendant's Motion should be granted.

I. FACTUAL BACKGROUND

Plaintiff Kenneth Dortch, a forty-six year old African-American male, was hired by Defendant Memorial Hermann as a security officer in 2001. Dortch suffers from a condition called ankylosing spondylitis, which is a form, of arthritis that causes stiffness along the spine, and from an undefined problem with his eyesight.³ According to Dortch, the ankylosing spondylitis requires that he maintain flexibility. Thus, he cannot sit or stand for more than two hours at a time without stretching, and cannot run for more than a few minutes at a time. In short, Dortch claims that he can "do a part of everything" in life so long as he flexes to avoid getting too stiff.⁴

In his role as a security officer, Dortch was expected to conduct patrols of Memorial Hermann's hospital complex, respond to disturbances, and escort patients and employees around the complex. Dortch claims that his medical conditions did not limit his ability to perform his job.⁵

As a Memorial Hermann employee, Dortch received a copy of the company's human resources manual, which, inter alia, outlined Memorial Hermann's "no-call/no-show" policy, The policy defines a "no-call/no-show" as the ""[f]ailure to notify one's manager prior to any unscheduled absences" and states that a failure to abide by the policy is grounds for termination.⁶

By all accounts, Dortch's tenure with Memorial Hermann was rocky. Dortch was disciplined for a variety of infractions during his approximately five years with the company and Dortch himself has detailed a history of conflict with his supervisors.⁷ In November 2003, Dortch was counseled for excessive absenteeism; in April 2004, Dortch received a verbal warning after having a confrontation with another Memorial Hermann employee; in August 2004, Dortch was counseled for working unauthorized overtime in contravention of his supervisor's directions; in March 2005, Dortch was again counseled for poor attendance and punctuality.⁸

Late in the afternoon of January 12, 2006, Dortch was working a scheduled shift at Memorial Hermann. Dortch's supervisor, Edmond Stevenson, saw Dortch patrolling the hospital complex in a golf cart after Dortch had escorted a woman to her car. Stevenson stopped to speak with Dortch about the amount of time it took Dortch to complete the escort. Dortch became argumentative and expressed his resentment at Stevenson for questioning Dortch's abilities.

Approximately an hour and a half later, Stevenson instructed Dortch to use the golf cart to patrol a certain area of the hospital complex. Dortch continually refused, claiming that the cart lacked headlights and thus, created a safety hazard if driven at night. After informing Dortch that the cart was equipped with a flashing light on its roof, which should have made it highly visible, Dortch continued to refuse his supervisor's instructions to patrol with the cart and stated that he wanted to "walk around and stretch."⁹ The exchange became increasingly heated, and Dortch was subsequently ordered to clock out and go home. He was also instructed by Stevenson to contact the security department manager the next day to discuss the situation.¹⁰ Dortch failed to contact the manager as instructed, and also failed to report to work, or follow the company's call-in policy, for his next scheduled shift on January 18, 2006.¹¹

On January 18th Stevenson saw Dortch working out at Memorial Hermann's gym. After discovering that Dortch was scheduled to work and that he had failed to call in as required, Stevenson contacted Dortch by phone and instructed him to report to work the next day. On the 19th, Dortch met with Mike Robins, Memorial Hermann's Security Manager, who put Dortch on suspension, pending termination, for violating the company's "no-call/no-show" policy. Dortch was subsequently terminated on January 24, 2006.

Dortch thereafter filed a complaint with OSHA, alleging that Memorial Hermann retaliated against him for complaining about the company's alleged violations of health and safety standards. Dortch also claims to have sought redress from the Equal Employment Opportunity Commission ("EEOC"), alleging that Memorial Hermann discriminated against him based on sex, age, and disability. The Department of Labor rejected his claims,¹² as did the EEOC.¹³

Dortch also sought unemployment benefits and had a hearing before the Texas Workforce Commission ("TWC") regarding his eligibility. The TWC ultimately determined that Memorial Hermann did not comply with the terms of its disciplinary procedures in terminating Dortch and that Dortch's discharge was not for workrelated misconduct.¹⁴

Thereafter, Dortch filed suit, claiming: He had been discriminated against because of his gender, which is in violation of Title VII of the Civil Rights Act of 1964.... He also believe [sic] that he was discriminated against because of a disabulity [sic], within the definition of the American [sic] with Disabilities Act of 1990[.] Plaintiff was also discriminated against because of his age and was also discriminated against because of his involvement in protected safety health [sic] activity.¹⁵ (See attached exhibits[.])¹⁶

Memorial Hermann has denied all allegations in Dortch's complaint.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case for which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); see also Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). In deciding a motion for summary judgment, the Court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Hart v. Hairston, 343 F.3d 762, 764 (5th Cir.2003).

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an "absence of a genuine issue of material fact," Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). The moving party, however, need not negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving party may meet its burden by pointing out "the absence of evidence supporting the non-moving party's case.'" Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak, 953 F.2d at 913). However, if the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the non-movant's response. ExxonMobil Corp., 289 F.3d at 375.

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001). "An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). However, factual controversies are resolved in favor of the non-movant "only when there is an actual controversy — that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City. of Houston, 185 F.3d 521, 525 (5th Cir.1999). The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir.2002) (noting that unsworn pleadings do not constitute proper summary judgment evidence). Likewise, "unsubstantiated or conclusory assertions that a fact issue exists" do not meet this burden. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). Instead, the non-moving party must present specific facts which show "the existence of a `genuine' issue concerning every essential component of its case." Id. In the absence of any proof, the court will not assume that the non-movant could or would prove the...