Earnest Hammond, Jr. v. Jacobs Field Services , 499 F. App'x 377 ( 2012 )


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  •      Case: 12-30222       Document: 00512073755         Page: 1     Date Filed: 12/05/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 5, 2012
    No. 12-30222                        Lyle W. Cayce
    Clerk
    EARNEST HAMMOND, JR.,
    Plaintiff - Appellant
    v.
    JACOBS FIELD SERVICES,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Middle District of Louisiana
    USDC No. 3:10-CV-56
    Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
    PER CURIAM:*
    In this case, we are asked to decide whether Defendant-Appellee Jacobs
    Field Services North America was entitled to summary judgment on Plaintiff-
    Appellant Earnest Hammond, Jr.’s claims for discrimination based on his race
    and disability in violation of the Americans with Disabilities Act and Title VII
    of the Civil Rights Act of 1964, and for retaliation. The district court granted
    summary judgment for Jacobs Field Services. We affirm with respect to the
    discrimination claims, but reverse and remand as to the retaliation claim.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 12-30222     Document: 00512073755      Page: 2    Date Filed: 12/05/2012
    No. 12-30222
    I. FACTS AND PROCEDURAL HISTORY
    Jacobs Field Services North America (“Jacobs”) performs general
    construction and construction-related services, industrial maintenance, and
    plant operations for chemical and refining companies throughout the Gulf Coast
    region. Earnest Hammond, Jr. (“Hammond”) was first employed by Jacobs in
    1996. After a gap in employment, he returned to work for Jacobs in 1998 at the
    Exxon Lube facility in Port Allen. The Exxon Lube facility packages motor oil,
    and employees in this facility work in shifts and rotate among the various types
    of automated lines which package the oil. As an operator, Hammond worked on
    the high-speed gallon line most often. His job duties involved climbing,
    balancing, stooping, kneeling, pulling, pushing, lifting, grasping, and using tools.
    For security purposes, the Exxon facility where Hammond worked
    required employees to use a gate pass assigned to each employee which is
    scanned to gain entry into the plant. This procedure is a safety measure which
    ensures that only authorized personnel have access to the facility and also allows
    Exxon to know how many people are in the facility in the event of an emergency.
    If an employee’s badge is not used for an extended period of time, it is
    deactivated. It is against the rules of both Exxon and Jacobs for an employee to
    enter the facility on someone else’s pass. This rule was discussed at a safety
    meeting which Hammond attended during his employment.
    In the year leading up to his termination in March 2008, Hammond had
    experienced health problems, including carpal tunnel syndrome, neck pain, back
    pain and weakness in the legs. In February 2008, after an extended sick leave,
    Hammond attempted to return to work with a limited duty release. Jacobs
    Superintendent Brent Watts informed Hammond that no limited or light duty
    work was available at that time and he could not return to work until he
    obtained a full medical release. On February 29, 2008, Hammond returned and
    attempted to enter the plant but his deactivated badge would not allow him
    2
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    No. 12-30222
    entry. Rather than use the intercom to communicate with security, Hammond
    followed another vehicle into the plant. Hammond knew that this practice was
    against company policy.1
    On March 3, 2008, Hammond discussed this incident with Brent Watts
    and Jacobs employees Wayne Tyson and Darryl Fuentes. During this meeting,
    Hammond admitted that he entered the plant on someone else’s badge and
    acknowledged that he knew this was against both Exxon’s and Jacobs’s rules.
    His only excuse for violating the rules was that he wanted to discuss his
    returning to work with someone. Based on this security breach, Jacobs Project
    Manager Wayne Tyson terminated Hammond. This decision was later affirmed
    by McClelland, who told Tyson that even if Jacobs had not terminated
    Hammond, Exxon would have refused to allow Hammond entrance to the
    facility.
    At the time of his termination, Jacobs contends that Hammond could not
    perform any of his job duties, let alone the essential ones. The record reflects
    that Hammond has worked for other employers only for a few months since he
    was terminated. Since his termination, Hammond has received disability
    benefits, and Hammond began to receive Social Security disability benefits in
    February 2010.
    On May 22, 2008, Hammond filed a charge of discrimination with the
    EEOC, which issued a Notice of Right-to-Sue in October 2009. In January 2010,
    Hammond sued Jacobs in the Middle District of Louisiana for discrimination
    1
    There is some dispute as to the events that followed on February 29, 2008. Jacobs
    insists that, after entering the plant, Hammond went to see Watts and was told to leave the
    plant because his presence was unauthorized. Jacobs further claims that Hammond ignored
    this directive and attempted to see the Exxon plant manager Mark McClelland. Finally,
    Jacobs asserts that when Hammond could not enter the secure door to McClelland’s office, he
    allegedly pounded on the door, resulting in McClelland’s office contacting the police. Hammond
    alleges that these events occurred on his subsequent visit, on March 3, 2008, and also denies
    that he pounded on the door.
    3
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    No. 12-30222
    based on his disability and race in violation of the Americans with Disabilities
    Act (“ADA”) and of Title VII of the Civil Rights Act of 1964 (“Title VII”),
    respectively, and for retaliation in violation of the ADA.2 Jacobs moved for
    summary judgment on all of the claims and in response, Hammond filed a
    motion in opposition. The district court granted Jacobs’s motion for summary
    judgment, and dismissed Hammond’s federal claims with prejudice.3
    II. STANDARD OF REVIEW
    We review a grant of summary judgment de novo, applying the same
    standard as the district court. Holt v. State Farm Fire & Cas. Co., 
    627 F.3d 188
    ,
    191 (5th Cir. 2010). Summary judgment is appropriate if there is no genuine
    dispute as to any material fact and the moving party is entitled to judgment as
    a matter of law. Fed. R. Civ. P. 56(a). The facts and evidence in the record must
    be viewed in the light most favorable to the nonmovant. Holt, 
    627 F.3d at 191
    .“If
    the record, taken as a whole, could not lead a rational trier of fact to find for the
    non-moving party, then there is no genuine issue for trial.” Steadman v. Texas
    Rangers, 
    179 F.3d 360
    , 366 (5th Cir. 1999) (citing Matsushita Elec. Indus. Co. v.
    Zenith Radio Corp., 
    475 U.S. 574
    , 597 (1986)).
    III. DISCUSSION
    A.     Hammond’s Discrimination Claims
    1.     ADA
    To decide whether summary judgment was appropriate on Hammond’s
    ADA discrimination claim, we begin with the burden-shifting framework of
    2
    In his complaint, Hammond alleged that Jacobs retaliated against him for requesting
    accommodation for his disability (an ADA retaliation claim), as well as for his complaints
    about racial discrimination by Jacobs against its employees (a Title VII retaliation claim).
    However, Hammond appears to have abandoned his Title VII retaliation claim in his
    Opposition to Jacobs’s motion for summary judgment, and does not clearly indicate that he is
    pursuing this claim on appeal. Therefore, we review only Hammond’s ADA retaliation claim.
    3
    The district court dismissed Hammond’s state law claims without prejudice, as it
    exercised its discretion under 
    28 U.S.C. § 1367
     not to assert federal jurisdiction over them.
    4
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    No. 12-30222
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
     (1973). See Raytheon Co. v.
    Hernandez, 
    540 U.S. 44
     (2003); E.E.O.C. v. Chevron Phillips Chem. Co., LP, 
    570 F.3d 606
    , 615 (5th Cir. 2009). Under this framework, the plaintiff must first
    establish a prima facie case of discrimination. 
    411 U.S. at 802
    . If the plaintiff
    succeeds, then the employer must articulate a legitimate, nondiscriminatory
    reason for the adverse employment action. 
    Id.
     If the employer meets its burden,
    then the burden of production shifts back to the plaintiff to show that the
    defendant’s proffered reason was a pretext for unlawful discrimination. 
    Id. at 804
    . A prima facie case coupled with a showing that the proffered reason was
    pretextual will usually be sufficient to survive summary judgment. See Reeves
    v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 146-48 (2000) (ADEA case);
    see also E.E.O.C. v. Chevron, 
    570 F.3d at
    615 (citing Reeves for the proposition
    that McDonnell Douglas applies in ADA discrimination cases).
    The ADA provides that “[n]o covered entity shall discriminate against a
    qualified individual with a disability because of the disability of such individual
    in regard to . . . discharge of employees . . . and other terms, conditions, and
    privileges of employment.” 
    42 U.S.C. § 12112
    (a) (2006). To prevail on an ADA
    claim, a plaintiff must prove that he has a disability, that he is qualified for the
    job, and that he suffered an adverse employment decision because of his
    disability. Turco v. Hoechst Celanese Corp., 
    101 F.3d 1090
    , 1092-93 (5th Cir.
    1996); see also Pinkerton v. Spellings, 
    529 F.3d 513
    , 517-19 (5th Cir. 2008)
    (clarifying the ADA’s causation standard).4 The district court found that
    Hammond was not disabled,5 that he was not qualified for his position as line
    4
    The district court incorrectly cited Turco for the proposition that the ADA requires
    sole causation. This court, in Pinkerton, concluded that the ADA causation standard does not
    require a showing of sole cause. 
    529 F.3d at 519
    .
    5
    The district court was correct to cite language from the version of the ADA in effect
    at the time of the alleged discrimination. The ADA was amended in 2008 and the amendments
    took effect on January 1, 2009. See ADA Amendments Act of 2008, Pub. L. No. 11-325, 122
    5
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    operator, and that he did not offer any evidence that the nondiscriminatory
    reason Jacobs gave for the adverse employment decisions it made as to
    Hammond was pretextual.
    We assume arguendo that Hammond was disabled.6 As discussed below,
    we think there is a fact question as to whether Jacobs’s proffered
    nondiscriminatory reason was legitimate. But we ultimately agree with the
    district court that summary judgment on Hammond’s ADA discrimination claim
    was correct because Hammond was not qualified for his position.
    “The term ‘qualified individual with a disability’ means an individual who,
    with or without reasonable accommodation, can perform the essential functions
    of the employment position that such individual holds or desires.” 
    42 U.S.C. § 12111
    (8); see also 
    29 C.F.R. § 1630.2
    (m) (“Qualified individual with a disability
    means an individual with a disability who satisfies the requisite skill,
    experience, education and other job-related requirements of the employment
    position such individual holds or desires, and who, with or without reasonable
    accommodation, can perform the essential functions of such position.”).
    As the record reflects, a line operator is required to perform moderately
    heavy manual tasks that Hammond was unable to do at the time of his
    termination. Some of these duties are not physically intensive (e.g., cutting
    excess wrapping material off of pallets, and adding glue to the glue pot), and
    sometimes operators are tasked, along with their other responsibilities, with the
    duty of training other employees. There is evidence—and on appeal Hammond
    Stat. 3553 (2008). We have previously held that these amendments are not retroactive. See
    EEOC v. Agro Distrib., LLC, 
    555 F.3d 462
    , 469 n.8 (5th Cir. 2009).
    6
    The district court relied on Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc.,
    
    242 F.3d 610
     (5th Cir. 2001), in holding that Hammond is not disabled. But Hammond’s
    physical limitations are more severe than the plaintiff’s in Dupre. The plaintiff in Dupre was
    capable of “bending at the knees, walking a half mile, lifting up to thirty pounds, and driving
    a car for an hour.” 
    Id. at 615
    . By comparison, the record shows that Hammond was unable to
    bend, stoop, or climb, and could not walk more than one block or lift more than five pounds.
    6
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    argues—that Jacobs could have retained Hammond by reassigning him
    exclusively to training responsibilities or light duty tasks, which at the time
    were distributed among all of the line operators in the plant. But this is not a
    “reasonable accommodation.” It is well established that the ADA does not
    require an employer to reassign an employee where doing so would result in
    other employees having to work harder or longer. See Turco, 101 F.3d at 1094;
    see also Burch v. City of Nacogdoches, 
    174 F.3d 615
    , 621 (5th Cir. 1999) (“The
    ADA does not require an employer to relieve an employee of any essential
    functions of his or her job, modify those duties, reassign existing employees to
    perform those jobs, or hire new employees to do so.”). Because Hammond was not
    qualified for his position, and because the accommodations he sought were not
    reasonable under the ADA, summary judgment was appropriate on Hammond’s
    ADA discrimination claim.
    2.    Title VII
    The district court appears to have applied the McDonnell Douglas
    framework in ruling on Hammond’s Title VII racial discrimination claim.
    However, “we apply the modified McDonnell Douglas framework in racial
    discrimination cases under Title VII.” Vaughn v. Woodforest Bank, 
    665 F.3d 632
    ,
    636 (5th Cir. 2011) (citing Rachid v. Jack in the Box, Inc., 
    376 F.3d 305
    , 308 (5th
    Cir. 2004). This modified framework differs from the traditional McDonnell
    Douglas framework only in the third stage of the analysis, after the plaintiff
    establishes a prima facie case of discrimination, and the defendant offers a
    legitimate, nondiscriminatory reason for its adverse employment action. 
    Id.
    Under the traditional framework, a plaintiff, having the burden of production
    shifted back to him, must show that the defendant’s reason was a pretext for
    unlawful discrimination. McDonnell Douglas, 
    411 U.S. at 802
    . But under the
    modified framework, the plaintiff in this situation is required to show either
    that the defendant’s reason was pretextual, or that the reason, while true, was
    7
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    only one of the reasons for its adverse action, and that another “motivating
    factor” for the action was the plaintiff’s protected characteristic, Vaughn, 665
    F.3d at 636 (citing Rachid, 
    376 F.3d at 312
    ).
    We need not venture far into our modified McDonnell Douglas analysis
    because Hammond cannot establish a prima facie case of racial discrimination.
    To establish a prima facie case, Hammond must show that he was qualified for
    his position. McDonnell Douglas, 
    411 U.S. at 802
    ; Rutherford v. Harris Cnty.,
    Tex., 
    197 F.3d 173
    , 184 (5th Cir. 1999). As discussed above, Hammond was not
    qualified for his position. Thus, summary judgment for Jacobs was proper on
    Hammond’s Title VII claim. See, e.g., Johnson v. Louisiana, 
    351 F.3d 616
    , 622
    (5th Cir. 2003) (“Employers may succeed on summary judgment by establishing
    that the plaintiff is not qualified for the coveted position.”).
    B.    Hammond’s Retaliation Claim
    We evaluate Hammond’s ADA retaliation claim under the McDonnell
    Douglas framework. See Jenkins v. Cieco Power, LLC, 
    487 F.3d 309
    , 316-17 (5th
    Cir. 2007) (citing Sherrod v. Am. Airlines, Inc., 
    132 F.3d 1112
    , 1121-22 (5th Cir.
    1998)). To establish a prima facie case of unlawful retaliation, Hammond must
    show that he was engaged in an activity protected by statute, that he was
    subject to an adverse employment action, and that there was a causal link
    between the protected act and the adverse action. See 
    id.
     at 317 n.3; Davis v.
    Dallas Area Rapid Transit, 
    383 F.3d 309
    , 319 (5th Cir. 2004); Seaman v. CSPH,
    Inc., 
    179 F.3d 297
    , 301 (5th Cir. 1999); Sherrod, 
    132 F.3d at
    1122 n.8. An
    adverse employment action is any action that might have dissuaded a reasonable
    worker from making or supporting a charge of discrimination. Burlington N. &
    Santa Fe Ry. Co. v. White, 
    548 U.S. 53
    , 57 (2006); McCoy v. City of Shreveport,
    
    492 F.3d 551
    , 559 (5th Cir.2007). A “causal link” is shown when the evidence
    demonstrates that “the employer’s decision to terminate was based in part on
    knowledge of the employee’s protected activity.” Sherrod, 
    132 F.3d at 1122
    .
    8
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    Upon his termination, Hammond suffered an adverse employment action.
    The record evidence indicates that Hammond also has satisfied the first and
    third requirements for showing a prima facie case of retaliation. Hammond
    appears to have engaged in protected activity under the ADA when he requested
    accommodation for his disability shortly before he was fired. In addition,
    Hammond has presented sufficient evidence to establish a causal link between
    his firing and his requests for accommodation.
    Given that Hammond has presented sufficient evidence to establish a
    prima facie case for retaliation under the ADA, Jacobs is required to articulate
    a legitimate, nondiscriminatory reason for its decision to terminate Hammond.
    McDonnell Douglas, 
    411 U.S. at 802
    . Jacobs alleged that it fired Hammond for
    entering the plant by following another employee’s vehicle through the security
    gate. Although it is true that Hammond’s action violated Jacobs policy, there is
    evidence in the record indicating that this policy was seldom if ever enforced.
    Rather, the record shows that entering the plant by following another vehicle
    through the gate was routine and even encouraged for new employees who have
    yet to be issued access cards. A reasonable factfinder could conclude that
    Jacobs’s articulated reason for the alleged retaliatory termination was
    pretextual. Because the evidence pertaining to Jacobs’s security policy creates
    a genuine issue for trial, summary judgment was inappropriate as to
    Hammond’s retaliation claim.
    CONCLUSION
    For the foregoing reasons, we AFFIRM the grant of summary judgment
    with respect to Hammond’s ADA and Title VII discrimination claims, but
    REVERSE the grant of summary judgment with respect to Hammond’s ADA
    retaliation claim and REMAND for proceedings consistent with this opinion.
    9
    

Document Info

Docket Number: 12-30222

Citation Numbers: 499 F. App'x 377

Judges: King, Owen, Per Curiam, Stewart

Filed Date: 12/5/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023

Authorities (20)

Pinkerton v. Spellings , 529 F.3d 513 ( 2008 )

Rutherford v. Harris County Texas , 197 F.3d 173 ( 1999 )

Rachid v. Jack In The Box Inc , 376 F.3d 305 ( 2004 )

McCoy v. City of Shreveport , 492 F.3d 551 ( 2007 )

Equal Employment Opportunity Commission v. Agro ... , 555 F.3d 462 ( 2009 )

Seaman v. C S P H Inc , 179 F.3d 297 ( 1999 )

Sherrod v. American Airlines, Inc. , 132 F.3d 1112 ( 1998 )

Johnson v. State of Louisiana , 351 F.3d 616 ( 2003 )

Gene A. Burch v. City of Nacogdoches , 174 F.3d 615 ( 1999 )

Davis v. Dallas Area Rapid Transit , 383 F.3d 309 ( 2004 )

Jenkins v. Cleco Power, LLC , 487 F.3d 309 ( 2007 )

Dupre v. Charter Behavioral Health Systems of Lafayette Inc. , 242 F.3d 610 ( 2001 )

Cheryl Steadman, Lisa Sheppard v. The Texas Rangers, ... , 179 F.3d 360 ( 1999 )

Equal Employment Opportunity Commission v. Chevron Phillips ... , 570 F.3d 606 ( 2009 )

Holt v. State Farm Fire & Casualty Co. , 627 F.3d 188 ( 2010 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Burlington Northern & Santa Fe Railway Co. v. White , 126 S. Ct. 2405 ( 2006 )

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio ... , 106 S. Ct. 1348 ( 1986 )

Reeves v. Sanderson Plumbing Products, Inc. , 120 S. Ct. 2097 ( 2000 )

Raytheon Co. v. Hernandez , 124 S. Ct. 513 ( 2003 )

View All Authorities »