Lawson v. Excel Contractors LLC

WILLIAM B LAWSON v. EXCEL CONTRACTORS L L C

CASE NO. 2:19-CV-00834

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION

June 28, 2021

JUDGE JAMES D. CAIN, JR.

MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the Court is "Excel Contractors, LLC's Motion for Summary Judgment" (Doc. 23) wherein Defendant moves to dismiss Plaintiff, William B. Lawson's complaint pursuant to Federal Rule of Civil Procedure 56. Plaintiff, William B. Lawson asserts four causes of action against Excel: (1) age discrimination, (2) retaliation under the Family Medical Leave Act ("FMLA"); (3) FMLA interference; and (4) and unspecified action under the Americans with Disabilities Act.

FACTUAL STATEMENT

Mr. Lawson, who was born on January 2, 1954, has made claims against his former employer, Excel Contractors, LLC ("Excel") under the anti-discrimination and/or anti-retaliation provisions of the Age Discrimination in Employment Act of 1967 ("ADEA"), the Americans with Disabilities Act of 1990 ("ADA"), and the Family and Medical Leave Act of 1993 ("FMLA"). Mr. Lawson complains that Excel unlawfully interfered with his right to take protected medical leave, and that Excel terminated him because of his age, along with the accompanying medical conditions and the necessary medical leave he had to take.

Mr. Lawson is a Certified Welding Inspector ("CWI"). He began his most recent employment with Ron Williams Construction as a CWI/Field Inspector in May 2014.¹ Excel purchased Ron Williams Construction in April 2016 resulting in Mr. Lawson being employed by Excel as a Quality Assurance/Quality Control ("QA/QC") Inspector in April 2016.² Mr. Lawson was 62 years old when Excel hired him in April 2016 and 64 years old when he was terminated.

On or about August 21, 2017, Mr. Lawson began experiencing chest pains and dizziness while on the job site. Due to his condition, Mr. Lawson left work to go home and to the doctor. Mr. Lawson received two (2) return-to-work slips, the first from his physician on September 5, 2017, and the second from Excel's company physician on September 9, 2017. Both slips allowed Mr. Dawson to return to work without restrictions. On or about September 9, 2017, Mr. Lawson returned to work, specifically on the Firestone project and the Westlake Petrochem project which he left on August 21, 2017. Mr. Lawson completed the Firestone project which included close-out packages necessary for Excel to invoice to the project owner, a necessary obligation of his job position. Shortly after his return, the Westlake Petrochem project was shut down due to engineering issues.

Two (2) days after Mr. Lawson took medical leave for his illness (August 23, 2017), Excel hired Davis Currie (DOB 1971, or 47 years old) as a QA/QC Inspector. Gene Anderson, was also a QA/QC Inspector for Excel as a consequence of Excel's acquisition of Ron Williams Construction, LLC.³ Mr. Currie resigned on March 7, 2018 and Mr.Anderson resigned on February 28, 2018.⁴ In January 2018, Excel submitted Mr. Lawson's resume in connection with the bid of the Juniper construction project, but Excel was not awarded the project.⁵ Due to a Reduction of Force ("ROF"), Mr. Lawson along with a vast number of other employees, were laid off on January 25, 2018.⁶

Excel maintains that Mr. Lawson's lay off was a legitimate company-wide ROF and for a non-discriminatory reason, whereas, Mr. Lawson maintains that Excel's lay off was due to his age, and/or retaliation for taking medical leave five (5) months prior.

SUMMARY JUDGMENT STANDARD

A court should grant a motion for summary judgment when the movant shows "that 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. The party moving for summary judgment is initially responsible for identifying portions of pleadings and discovery that show the lack of a genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny the motion for summary judgment if the movant fails to meet this burden. Id.

If the movant makes this showing, however, the burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted). This requires more than mere allegations or denials of the adverse party's pleadings. Instead, thenonmovant must submit "significant probative evidence" in support of his claim. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249 (citations omitted).

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). The court is also required to view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material fact exists if a reasonable trier of fact could render a verdict for the nonmoving party. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

LAW AND ANALYSIS

The ADEA, FMLA, and ADA make it unlawful to discharge or otherwise discriminate against an individual with respect to age, disability, or need to take medical leave for a qualifying health condition. 29 U.S.C. § 623(a)(a); 42 U.S.C. § 12112(a); 29 U.S.C. § 2615(a)(1)-(2). The FMLA requires a covered employer to allow an eligible employee up to 12 weeks of unpaid leave for a qualifying health condition and to restore the employee to the same position or equivalent position with the equivalent employment benefits, pay, and other terms and conditions upon his or her return to the workplace. 29 U.S.C. § 2614(a).

ADEA

Under the ADEA, an employer cannot "discharge any individual... because of such individual's age." 29 U.S.C. § 623(A)(1). To establish an ADEA claim, the plaintiff must show that his age was the "but for" cause of his termination—proving that age was a "motivating factor" for the decision is not enough. Gross v. FBL Fin. Servs., Inc. 557 U.S. 167, 180, 129 S.Ct. 2343 (2009) (holding that a "plaintiff must prove by a preponderance of the evidence ... that age was the 'but-for' cause of the challenged employer decision"); see also Moss v. BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010) ("[T]he Supreme court rejected the application of Title VII's 'motivating factor' standard to ADEA cases." (citing Gross, 557 U.S. at 173-178, 129 S.Ct. 2343)). A plaintiff may prove that age was a but-for cause of his firing with direct or indirect evidence. Kilgore v. Brookeland Indep. Sch. Dist., 538 F.App'x 473, 475-76 (5th Cir. 2013) (per curiam) (unpublished).

If the plaintiff cannot prove his case with direct evidence of discriminatory motive, he can still rely on indirect evidence. When confronting indirect evidence, courts use the burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, (1973). Under this framework, a plaintiff must first "put forth a prima facie case." Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007). After making out a prima facie case, "the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the employment decision." Id. If the employer articulates such a reason, the plaintiff must rebut the employer's purported explanation by showing that the reasons given is merely pretextual. Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010).

To show pretext, a plaintiff must present enough evidence for a reasonable jury to believe that [the employer's] "reasons are pretext for unlawful discrimination." Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1504 (5th Cir. 1988). A plaintiff can do so by showing that; (1) "a discriminatory reason more likely motivated" the employer, Id.; (2) the employer's "reasons is unworthy of credence," Id.; or (3) he "is 'clearly better qualified' than the person selected for the position," Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007).

Under the McDonnell Douglas framework, Plaintiff's prima facie case with respect to the ADEA requires him to show discrimination because of his age, whereas under the ADA, he must show discrimination based on a disability. Mr. Lawson must show that: (1) he was subject to an adverse employment action; (2) he was qualified for the position; (3) he was within the protected class at the time of the discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age. Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010).

Mr. Lawson complains that Excel failed to promote him in favor of Gene Anderson and terminated him in favor of David Currie and Gene Anderson. Excel posits that based on his deposition testimony, Mr. Lawson cannot prove that a discriminatory reason more likely motivated Excel, or that Excel's reason is unworthy of credence. Excel also contends that Mr. Lawson is not "clearly better qualified" than Mr. Currie or Mr. Anderson.

An employer's failure to promote is a discrete act that is actionable under the ADEA and ADA. 29 U.S.C. § 621 et seq.; 42 U.S.C. § 12112(a). To prove a failure to promoteclaim, Mr. Lawson must establish that (1) he was a member of a protected class; (2) he sought and was qualified for a position; (3) he was not promoted to the position sought; and (4) (a) the position was filled by someone younger (or non-disabled) or (b) the failure to promote was because of his age (disability). Palasota v. Haggar Clothing Co., 342 F.3d 569, 575-76 (5th Cir. 2003).

Mr. Lawson complains that Mr. Anderson was...