Kitchen v. BASF

343 F.Supp.3d 681

Jeff KITCHEN, Plaintiff.

v.BASF, Defendant.

CIVIL ACTION NO. 3:17-CV-00040

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

Signed October 16, 2018

Veronica L. Davis, Attorney at Law, West Columbia, TX, for Plaintiff.

Carolyn A. Russell, Samantha Danielle Seaton, Ogletree Deakins, et al., Houston, TX, for Defendant.

MEMORANDUM AND RECOMMENDATION

ANDREW M. EDISON, UNITED STATES MAGISTRATE JUDGE

Plaintiff Jeff Kitchen ("Kitchen") brings this employment discrimination case alleging that BASF Corporation ("BASF") discriminated against him based on a disability in violation of the American with Disabilities Act ("ADA"), discriminated against him based on his age in violation of the Age Discrimination in Employment ("ADEA"), and violated 42 U.S.C. § 1981 (" Section 1981"). BASF has filed a Motion for Judgment on the Pleadings (Dkt. 31) and a Motion for Summary Judgment (Dkt. 77). Kitchen has also moved for summary judgment. Dkt. 71.

All dispositive pretrial motions in this case have been referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Dkt. 112. Having considered the parties' briefing, the applicable legal authorities, oral argument, and the summary judgment record, the Court RECOMMENDS that BASF Defendant's Motion for Summary Judgment (Dkt. 77) be GRANTED; Plaintiff's Second Motion for Summary Judgment (Dkt. 71) be DENIED; and BASF's Motion for Judgment on the Pleadings (Dkt. 31) be DENIED AS MOOT. The Court's reasoning is explained in detail below.

BACKGROUND

Kitchen began working for BASF, a producer and marketer of chemicals and related products, in 2006 at a chemical plant in Seaford, Delaware. In the fall of 2010, Kitchen was involved in a drunk driving accident in which he injured two people while driving with an alcohol level of approximately 0.13. Instead of immediately terminating Kitchen's employment, BASF permitted him to take a 30-day leave of absence to undergo inpatient alcohol abuse treatment. Kitchen rejoined BASF after completing the treatment.

When BASF closed the Seaford, Delaware plant in 2013, BASF offered Kitchen the opportunity to transfer to its Freeport, Texas facility. Around October 2013, before Kitchen relocated to Texas, BASF allowed Kitchen to take another leave of absence for alcohol abuse treatment. After participating in this two-month treatment program, Kitchen moved halfway across the country and, in February 2014, started his new position at BASF's Freeport, Texas location.

In April 2014, a co-worker reported to management that Kitchen's breath smelled like alcohol. Kitchen admitted that it was certainly plausible since he probably had four drinks that day after he arrived at the plant for work. Instead of terminating him this time around, BASF told Kitchen they wanted to get him help, and arranged for him to take approximately five months off work to seek outpatient treatment.

Unfortunately, the alcohol treatment did not resolve Kitchen's problems with alcohol. In May 2014, police pulled Kitchen over for driving erratically, and charged him with driving under the influence after a breathalyzer test indicated that he was driving with an alcohol level of 0.15. Kitchen pled guilty and spent 19 days in jail. While incarcerated, Kitchen wrote BASF a letter requesting that he be allowed to keep his job: "Whatever your decision is just know I appr[e]ciate the opportunity you gave me, the kindness and support you have shown and making me feel at home with BASF." Dkt. 77-3 at 32. Somewhat incredibly, BASF did not terminate Kitchen. Instead, the company again accommodated him, requiring him to complete an Employee Assistance Program at an outpatient facility. Kitchen returned to work at BASF in October 2014. As a condition of his return to work, Kitchen agreed:

• He would remain sober at work;

• He would continue treatment for alcohol abuse;

• He would undergo follow-up testing at work; and

• He would conduct himself professionally and appropriately.

Before Kitchen rejoined BASF, the company issued a Final Warning and Return to Work, notifying Kitchen that any subsequent violations of the above conditions would result in immediate termination.

On September 28, 2015, Kitchen was scheduled for an alcohol test. He arrived for work at 7:30 a.m. that day, two hours late. The test was not administered until 10:40 a.m., and the results showed an alcohol level of 0.014. A second test was administered approximately 15 minutes later, showing an alcohol level of 0.010.

Kitchen's supervisor, Mark Damron ("Damron"), reviewed these results and conferred with BASF's in-house physician regarding the rate alcohol is metabolized in the body over time. Based on the company doctor's calculations, Damron's understanding was that, assuming Kitchen had not been drinking at work and that alcohol levels in his body had decreased normally over time, Kitchen must have been under the influence of alcohol when he arrived at work at 7:30 a.m. Because Damron believed Kitchen had turned up at work under the influence of alcohol in violation of company policy and his Return to Work Agreement and Final Warning, Kitchen's employment was terminated effective October 2, 2015. At the time of his termination, Kitchen was over the age of 55.

Kitchen contends that the alcohol testing process conducted by BASF was replete with problems in the administration of the test and interpretation of the test results. These alleged problems included a lack of proper certification by the individual who administered the alcohol test, the use of a defective machine, false test results, and a failure to properly calibrate the testing machine.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine dispute of material fact does not exist unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Burell v. Prudential Ins. Co. of Am. , 820 F.3d 132, 136 (5th Cir. 2016) (citation omitted). "The moving party ... bears the initial responsibility of informing the district court of the basis for its motion." Brandon v. Sage Corp. , 808 F.3d 266, 269–70 (5th Cir. 2015) (citation omitted). If the burden of production at trial "ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Lyles v. Medtronic Sofamor Danek, USA, Inc. , 871 F.3d 305, 310–11 (5th Cir. 2017). Once a party "meets the initial burden of demonstrating that there exists no genuine issue of material fact for trial, the burden shifts to the non-movant to produce evidence of the existence of such an issue for trial." Brandon , 808 F.3d at 270. The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts. [It] must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial to avoid summary judgment." Id. (citations and quotation marks omitted). "In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party." Rayborn v. Bossier Par. Sch. Bd. , 881 F.3d 409, 414 (5th Cir. 2018) (quotation marks and citation omitted).

DISCUSSION

In his Second Motion for Summary Judgment,¹ Kitchen contends that he is entitled to summary judgment on his ADA claim. In a nutshell, Kitchen asserts that he can establish a prima facie case of ADA discrimination, and BASF cannot rebut the presumption because the company's proffered reason for terminating his employment is a mere pretext, with the real reason for his termination having been based on impermissible animus. Meanwhile, BASF has filed its own Motion for Summary Judgment, arguing that Kitchen cannot establish a prima facie case of disability discrimination under the ADA and cannot show that BASF's legitimate reason for his termination is a mere pretext for a discriminatory animus against disabled persons. BASF also argues that Kitchen's age discrimination claim under the ADEA and his Section 1981 claim fail as matter of law.

Plaintiff's Opposition/Response to Defendant's Motion for Summary Judgment ("Summary Judgment Response") contains 24-pages of argument but has no summary judgment evidence attached.² This is a problem for Kitchen because it is well-established in the Fifth Circuit that unsworn pleadings do not constitute summary judgment evidence. See Johnson v. City of Houston , 14 F.3d 1056, 1060 (5th Cir. 1994) ("Unsworn pleadings, memoranda or the like are not, of course, competent summary judgment evidence.") (citation omitted). Although Kitchen failed to introduce competent summary judgment evidence in response to BASF's Motion for Summary Judgment, this Court is not permitted to automatically enter a summary judgment against him. As the movant, BASF must still show there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. See Hetzel v. Bethlehem Steel Corp. , 50 F.3d 360, 362 n.3 (5th Cir. 1995). If BASF fails to meet its initial burden, the Court must deny the motion for summary judgment even if the nonmovant fails present any evidence or file a response. See Eversley v. Mbank Dallas , 843 F.2d 172, 174 (5th Cir. 1988).

For convenience sake, the Court will address both parties' summary judgment motions at the same time. To be clear, although Kitchen failed to timely submit summary judgment evidence in conjunction with his response to BASF's Motion for Summary Judgment, he did submit evidence in conjunction with his own Second Motion for Summary Judgment. The Court considers this evidence for the purpose of assessing both pending motions for summary judgment.

A. The ADA Claim

1. Elements of an ADA Disability Discrimination Claim

The ADA is a "broad mandate of comprehensive...