Rodriguez v. Alcoa Inc.

805 F.Supp.2d 310

Gino RODRIGUEZ, Plaintiff,

v.ALCOA INC. & Alcoa World Alumina, LLC, Defendants.

Civil Action No. V–09–74.

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

April 4, 2011.

Linda D. King, Mark D. Goranson, Goranson King PLLC, Houston, TX, for Plaintiff.

Holly Harvel Williamson, Hunton & Williams LLP, Houston, TX, for Defendants.

MEMORANDUM OPINION & ORDER

JOHN D. RAINEY, Senior District Judge.

Plaintiff Gino Rodriguez (“Rodriguez”) has sued Alcoa Inc. and Alcoa World Alumina, LLC (“Alcoa”) alleging violations of the Americans with Disabilities Act (ADA). Pending before the Court is Alcoa's Motion for Summary Judgment (Dkt. No. 13), which was filed December 22, 2010. Rodriguez has not filed a response.¹ After careful consideration of the motion, record, and applicable law, the Court is of the opinion that Alcoa's Motion for Summary Judgment should be GRANTED.

I. Background

Due to a birth defect, Rodriguez is completely deaf in his left ear. (Complaint, Dkt. No. 1 ¶ 6; Rodriguez Dep., Dkt. No. 13, Ex. 1 at 7:24–8:1.) Rodriguez also has significant hearing loss in his right ear, although he claims his hearing in his right ear is “good for [him].” (Compl. ¶ 6; Rodriguez Dep. at 10:3–4.) As a child, Rodriguez obtained a hearing aid for his left ear, but he stopped using it because it did not improve his hearing. (Rodriguez Dep. at 8:14–9:23.) Despite his hearing impairment, Rodriguez says he “live[s] a normal life.” ( Id. at 227:7–12), and the only occasion his hearing impairment has ever prevented him from engaging in a chosen activity was in 1977, when he attempted to join the military but failed the physical examination. ( Id. at 58:22–59:10.)

In October 2007, Rodriguez applied for a position at Alcoa's Point Comfort, Texas facility. (Compl.¶ 7.) Alcoa invited Rodriguez to interview for a Plant Utility Operator (“Operator”) position, during which Rodriguez met with three Alcoa employees, including Bret Martinets, the Senior Industrial Relations Supervisor. (Rodriguez Dep. at 71:8–12; Martinets Aff., Dkt. No. 13, Ex. 2 ¶ 4.) Mr. Martinets sent Rodriguez a letter on approximately December 27, 2007, extending him a conditional job offer. (Rodriguez Dep. at 220:16–221:16; Martinets Aff. ¶ 4.) The letter listed a start date of January 14, 2008, but clearly stated, “This offer is contingent upon your passing of our pre-employment physical exam.” (Letter, Dkt. No. 13, Ex. 2, Tab 2.)

Fully aware of the conditional nature of the employment offer, Rodriguez underwent the pre-employment physical examination. (Rodriguez Dep. at 232:11–23.) As part of the examination process, Rodriguez completed a Medical and Occupational Health History form (MOHH) for Alcoa. ( Id. at 204:18–23.) The “Past Medical History” section of the MOHH provides boxes for applicants to identify preexisting medical conditions. (MOHH Form, Dkt. No. 13, Ex. 6, Tab 5 at 1.) Despite his known hearing impairment, Rodriguez left the box on his MOHH for “Deafness/Hearing Loss/Ear Problems” blank and checked the box labeled “None of the Above.” ( Id. at 1; Rodriguez Dep. at 205:12–206:17.) Likewise, the “Review of Symptoms” section asks applicants to check boxes for any symptoms they may have experienced in the previous year. (MOHH Form at 2.) Although the form includes a box for “Difficulty with Ears or noted: Loss of Hearing/Broken Ear Drum/Hearing Aid,” Rodriguez failed to check a single box in that section. ( Id.; Rodriguez Dep. at 206:24–207:21.) After completing the MOHH form, Rodriguez reported to the Point Comfort medical facility (“Alcoa Medical”) to complete his physical exam, which included a hearing test. ² (Rodriguez Dep. at 113:12–16; Williams Aff., Dkt. No. 13, Ex. 8 ¶ 3.) At no time prior to this test did Rodriguez inform anyone at Alcoa of his hearing impairment. (Rodriguez Dep. at 116:7–19, 125:19–25.)

Travis Williams, Senior Medical Coordinator at Alcoa Medical, conducted Rodriguez's hearing exam on January 7, 2008. (Williams Aff., Dkt. No. 13, Ex. 8 ¶¶ 3, 4.) After the initial hearing exam revealed that Rodriguez registered no hearing in his left ear and very little in the right, Ms. Williams called in physician Ricky McShane to ensure she was administering the exam correctly and to ensure the testing equipment was functioning properly. ( Id. ¶¶ 4–6; Rodriguez Dep. at 118:1–119:5; McShane Aff., Dkt. No. 13, Ex. 6 ¶¶ 8–9.) Rodriguez watched in silence as Dr. McShane tested the equipment on himself. (Rodriguez Dep. at 123:17–21; McShane Aff. ¶ 8.) Once Dr. McShane and Ms. Williams realized the equipment was operating properly, Dr. McShane asked Rodriguez if he might be deaf in his left ear, to which Rodriguez finally revealed that he was. (Rodriguez Dep. at 122:20–22; McShane Aff. ¶ 9; Williams Aff. ¶ 6.)

Based on the test results, Dr. McShane explained to Rodriguez that his hearing did not meet Alcoa's minimum standards for the Operator position. (McShane Aff. ¶ 10.) In accordance with Alcoa's Mobile Equipment Operator Evaluation policy, Rodriguez could have taken his hearing exam with the use of a corrective hearing aid, but Rodriguez did not have a hearing aid at the time his hearing test was conducted. ( Id. ¶ 11.) Accordingly, Dr. McShane instructed Rodriguez to have his hearing corrected and return to Alcoa Medical to take the test again. ( Id. ¶ 10.)

At Dr. McShane's direction, Ms. Williams contacted Mr. Martinets to explain that there were some issues with Rodriguez's pre-employment physical exam that Rodriguez needed to resolve before Dr. McShane could complete the exam. (Martinets Aff. ¶ 7; Williams Aff. ¶ 8.) After hearing nothing from Rodriguez for several days, Ms. Williams again contacted Mr. Martinets on January 11, 2008, to inform him that Dr. McShane could not clear Rodriguez to operate mobile equipment or participate in firefighting/hazardous material response. (McShane Aff. ¶ 15; Martinets Aff. ¶ 8; Williams Aff. ¶ 9.) Mr. Martinets called Rodriguez that same day to ask whether he intended to comply with Dr. McShane's instructions, and Rodriguez then informed Mr. Martinets for the first time that he was deaf in his left ear. (Martinets Aff. ¶ 8.) Mr. Martinets told Rodriguez that if he did not obtain a corrective device for his hearing and return to Alcoa Medical for retesting by his January 14, 2008 start date, Alcoa would rescind his employment offer. ( Id. ¶ 10.) After receiving no response from Rodriguez, on January 16, 2008, Mr. Martinets sent Rodriguez a letter rescinding the employment offer because he did not meet the minimum hearing requirements for the Operator position. ( Id. ¶ 11; Letter, Dkt. No. 13, Ex. 2, Tab 4.)

On advice from a cousin, Rodriguez contacted the Equal Employment Opportunity Commission (EEOC) to complete an Intake Questionnaire and file a charge alleging claims for disability discrimination (“EEOC Charge”). (EEOC Intake Questionnaire, Dkt. No. 13, Ex. 11.) The EEOC issued Rodriguez a Notice of Right to Sue on September 11, 2009. (Notice of Rights, Id., Ex. 12.) Rodriguez filed the instant action on December 10, 2009, alleging that Alcoa discriminated against him in violation of the ADA. Specifically, Rodriguez contends that Alcoa rescinded the conditional offer of employment in January 2008 because of his hearing impairment, which he claims is both a “disability” and a “perceived disability.” Rodriguez further claims that Alcoa failed to accommodate his disability in violation of the ADA. Alcoa now moves for summary judgment on all of Rodriguez' claims.

II. Standard of Review

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Christopher Village, LP v. Retsinas, 190 F.3d 310, 314 (5th Cir.1999). “For any matter on which the nonmovant would bear the burden of proof at trial ..., the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718–19 (5th Cir.1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To prevent summary judgment, the non-movant must “respond by setting forth specific facts” that indicate a genuine issue of material fact. Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999).

When considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in favor of the non-movant. See Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir.1998); Texas v. Thompson, 70 F.3d 390, 392 (5th Cir.1995). “The court may not undertake to evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive at a verdict in that party's favor, the court must deny the motion.” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir.1991). However, the non-movant cannot avoid summary judgment by presenting only “conclusory allegations” or “unsubstantiated assertions,” such as the bare allegations of a complaint, but must present sufficient evidence, such as sworn testimony in a deposition or affidavit, to create a genuine issue of material fact as to the claim asserted. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). “Even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that ‘the better course would be to proceed to a full trial.’ ” Freeman v. U.S., 2005 WL 3132185, *2 (S.D.Tex. Nov. 22, 2005) (quoting Anderson v. Liberty Lobby, Inc., 477...