Mesa v. City of San Antonio

ABEL MESA, Plaintiff, v. THE CITY OF SAN ANTONIO, ACTING BYAND THROUGH ITS AGENT, CITY PUBLIC SERVICEBOARD D/B/A CPS ENERGY, Defendant.

Civil Action No. SA-17-CV-654-XR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

August 16, 2018

ORDER

On this date, the Court considered Defendant CPS Energy's Motion for Summary Judgment (docket no. 41) and the corresponding Response¹ (docket no. 43) and Reply. After careful consideration, Defendant's motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

The live Complaint is Plaintiff's Second Amended Complaint. Docket no. 29. Therein, Plaintiff Abel Mesa sues his former employer, CPS Energy, alleging a number of employment discrimination and retaliation claims. Defendant moves for summary judgment on all claims. As discussed below, Plaintiff concedes several of his claims, but continues to maintain claims for disability discrimination under the "regarded as" prong of the Americans with Disabilities Act ("ADA"), disability discrimination under the ADA based on association with his disabled wife,retaliation under the Family and Medical Leave Act ("FMLA"), and age discrimination under the Age Discrimination in Employment Act ("ADEA").

Mesa was hired by CPS Energy in 1990 and remained employed by CPS Energy until his alleged involuntary retirement in 2016. In February 2013, Mesa's wife was diagnosed with pancreatic cancer, and Mesa utilized intermittent leave under the FMLA through September 2016 to care for her. Mesa testified that no one ever said anything to him "that they were concerned or bothered by her treatment expenses" or his use of FMLA leave, and he never felt he was being treated differently because his wife had cancer before the events in 2016 leading to this lawsuit. Mesa depo. at 47, 63, 70-71, 77-78.

In 2016, Mesa worked as a control room operator at the Milton B. Lee West power plant, also known as the Leon Creek power plant. A control room operator operates the power plant. Urrutia depo. at 31. Mesa's direct supervisor was Vernon King; his Level 2 manager was Kevin Drennan, an operations manager stationed at the Braunig power plant; and his ultimate manager was Rick Urrutia, CPS Energy's Interim Senior Director over four power plants, including Leon Creek.

Drennan testified that Mesa talked several times about retiring at the end of 2016, "once he made his years of service." Drennan depo. at 6. Mesa testified that in 2016 he sought information about his retirement benefits. Mesa depo. at 89. On August 30, 2016, Mesa and his wife visited with CPS Energy's Employee Benefits department to obtain an estimate of his potential pension benefits upon retirement. Docket no. 41-2 ¶ 5; Mesa depo. at 97. Mesa filled out a Pension Estimate Request with estimated retirement dates of December 1, 2016, February 1, 2017, and August 1, 2017. Docket no. 41-5. December 1, 2016 was the date on which he would have sufficient years of service to retire with full benefits. Docket no. 41-2 (ZinsmeyerDecl.) ¶¶ 5-6. Mesa testified that the HR employee he met with was unable to answer all of his questions about taxes and insurance and different payment options. Mesa depo. at 93.

On September 9, 2016, Plaintiff emailed Drennan of his intent to retire. His email states, "I plan on retiring. Need to talk to my Broker about Best Option for Me. Analyst could not answer all my questions." Docket no. 41-7. Mesa testified that he sent this email because Drennan "was pushing the issue for me to retire" and "this was my way of kind of like slowing down the process so I wouldn't have to - That's the way I felt at the time to answer." Mesa depo. at 101. However, Mesa then stated that Drennan was not pushing, that he only had one conversation with Drennan about whether he was planning to retire, and that he sent this email on his own. Id. at 101-02.²

Mesa's Response to the Motion for Summary Judgment states that this email was sent to Drennan "as requested," but Mesa's deposition testimony is clear that no one "requested" that he send this email. Mesa and Drennan agree that they discussed how Mesa could see his retirement numbers, but the specifics of the conversation differ. Mesa testified that Drennan told him to send the intent to retire and told him what to say in order to see his numbers. Mesa depo. at 48. Mesa said that Drennan told him, "Put this the way it is and send it to that Mr. Robinson and he'll show you the numbers and he can pull your -- your papers. This don't mean that you're going to retire. This is just to see your numbers." Mesa depo. at 48. Mesa testified that Drennan told him he could later tell them, after getting his estimates, that he did not want to retire and that they would "pull his papers," and that this was a normal procedure. Mesa depo. at 138. Drennan testified that Mesa had said he wanted more information about what his numbers would look like, so he shared with him that he had used the online tool to get calculations, and neversuggested that he should send him an intent to retire to find out more information. Drennan depo. at 7. Mesa testified that he was aware of and had used the online tool, but it did not provide enough information about insurance and "take home" pay. Mesa depo. at 80, 90, 97. Thus, the evidence does not show that Drennan requested the email, but the evidence raises a fact issue as to whether Drennan suggested that Mesa send the email (and how to word it) in order to see his retirement numbers.

After Mesa emailed Drennan his intent to retire, Drennan responded back thanking him for the notice and asking him to update with the intended retirement date as soon as possible. Docket no. 41-7. Mesa and Drennan had no further conversations about Mesa retiring, and Mesa did not talk to anyone else in management about retiring. Mesa depo. at 103. Mesa testified that he did not ask for any more numbers to be run by the pension department because he "wasn't interested in retiring" and the numbers would be good for another year. Id. Mesa testified that he did not meet with his broker. Id. at 104.

On Monday, September 12, 2016, Plaintiff was on a ladder at work and had his left arm raised when he felt extreme pain in his left shoulder. He was afraid to get down and asked a co-worker to call EMS; he was taken to the emergency room by ambulance. Mesa depo. at 104-06. The emergency room physician took x-rays and gave him pain medication, diagnosed him with a shoulder sprain, and released him the same day with instructions to follow up with a private physician in one to two days for "Further diagnostic work-up, Recheck today's complaints, Continuance of care." Mesa depo. at 106-07; docket no. 41-9; docket no. 43-1 at 65 (Ex. 7).

A worker's compensation claim was opened with Broadspire, CPS Energy's third-party workers' compensation administrator. Docket no. 43-1 (Ex. 8). The next day, Tuesday September 13, Mesa was evaluated at Texas MedClinic on Bandera Road. This appointment wasfacilitated by Jose Castaneda, the Safety and Health Program Manager at CPS, to ensure further care in accordance with workers' compensation regulations. Castaneda depo. at 11-12. The MedClinic records indicate that Mesa was diagnosed with a left shoulder strain and prescribed ice, range-of-motion exercises, and "ibuprofen during the day, tramadol as needed at bedtime with two Tylenol." They also state, "May need physical therapy if not progressing." Docket no. 43-1 at 72.

Texas MedClinic provided a Texas Workers' Compensation Work Status Report, which released Mesa to return to work with certain restrictions expected to last through September 16, including: no climbing stairs or ladders, no reaching, no overhead reaching, no lifting or carrying, and automatic transmission driving only. Docket no. 41-10. A follow-up evaluation was scheduled for 10:30 a.m. on Friday, September 16. Id. Castaneda stated that receipt of this information started the ADA process, that the next step was to identify whether the business area could accommodate Mesa based on the restrictions outlined by the treating physician, and that this was handled by human resources. Castaneda depo. at 12.

Lisa Jarzombek in CPS's Absence Management Department received the Texas MedClinic evaluation in the afternoon of September 13 and emailed Drennan, Vernon King, and Toni Harris-Rowland in Human Resources stating that Mesa needed light duty accommodation "effective 9/13/16 through 9/16/16" with a follow-up appointment scheduled for September 16. Docket no. 41-11. The email asked "HR/Mgmt" to "please make the necessary accommodations and forward the signed BFOE [bona fide offer letter for a light duty assignment] to the Leave [Department] in box once completed." Id.

On or about September 14, Mesa was contacted by doctors in Houston who were treating his wife's cancer, and they instructed him that his wife needed an infusion in Houston on Friday,September 16. Mesa depo. at 117. Mesa contacted the Texas MedClinic on September 14 to reschedule his September 16 follow-up appointment. Docket no. 43 at 77 (Ex. 11). Documents indicate that on the 15th at 11:05 a.m., Broadspire (the third-party workers' compensation administrator) received a notice stating that Mesa called on September 14 to reschedule the appointment "due to him going out of town" and that the rescheduled appointment was set for September 23 at noon. Docket no. 43-1 at 77 (Ex. 11). Plaintiff's brief asserts that this was sent by fax to Jarzombek, but the information at the bottom of the page states "BroadSpire Receive date - 9/15/2016." The notice includes information about Mesa's employer and contact information (phone and fax) for Jarzombek, but does not indicate that it was faxed to her. It appears that Jarzombek was aware that Mesa had rescheduled the appointment, but not why, by the morning of the 15th. Docket no. 43-1 at 81.³

On Thursday, September 15 at 9:44 a.m., Toni Harris-Rowland from HR emailed Lisa Jarzombek...