Opinion
3:23-CV-2457-B-BW
11-12-2024
MIKEL YOUNG, Plaintiff, v. UNITED PARCEL SERVICE, INC. (OHIO), Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BRIAN McKAY UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order No. 3-354, this case is referred to the undersigned United States magistrate judge for pretrial management, which includes making findings and a recommended disposition when appropriate. (See Dkt. No. 24.) Before the Court is Defendant United Parcel Service, Inc.'s Motion for Summary Judgment and supporting brief (Dkt. No. 25); Plaintiff Mikel Young's Motion to Object to Defendant's Reply/Response (Dkt. No. 29); Young's Motion to Remand to State Court (Dkt. No. 31); and Young's Motion to Appoint Counsel (Dkt. No. 32).
For the following reasons, the Court DENIES Young's Motion to Object to Defendant's Reply (Dkt. No. 29); DENIES Young's Motion to Appoint Counsel (Dkt. No. 32); and the undersigned recommends that Young's Motion to Remand to State Court (Dkt. No. 31) be DENIED; and recommends that UPS's Motion for Summary Judgment (Dkt. No. 25) be GRANTED.
I. BACKGROUND
A. Procedural Background.
On October 2, 2024, pro se Plaintiff Mikel Young filed an original petition in Texas state court, asserting claims of employment discrimination against UPS. (See Dkt. No. 1-5 at 2-6 (“Compl.”).) Young's handwritten bare-bones complaint alleges “wrongful termination” and “failure to comply with A.D.A.” (See id. at 2.) He also alleges he was “terminated for filing a worker's comp claim . . . and being retaliated against.” (See id. at 2-3.) On November 3, 2023, UPS removed the lawsuit to this Court on the basis of federal question jurisdiction, pursuant to 28 U.S.C. § 1331. (See Dkt. No. 1.)
On August 5, 2024, approximately seven months after the amendment deadline (see Dkt. No. 10), Young filed a pleading entitled “Complaint for Employment Discrimination,” which the Court construed as an amended complaint. (See Dkt. No. 22.) Young merely completed a new complaint form, using the same case number as the present case, adding two new claims alleging race and age discrimination, and naming two United Parcel Service employees as additional defendants. (See id.) On August 8, 3023, UPS filed a motion to strike the amended complaint. (Dkt. No. 23.)
On September 4, 2024, UPS filed the present Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(a). (See Dkt. No. 25.) The motion is accompanied by an appendix consisting of exhibits, lettered A through D, with applied Bates Stamp numbers MSJ APPX 002-186. (See Dkt. Nos. 25-1 to 25-4.) On September 13, 2024, Young filed an “Objection” to UPS's motion but presented no specific legal arguments in opposition to the motion. (See Dkt. No. 26.) UPS filed a reply on September 27, 2024. (Dkt. No. 28.) On September 19, 2024, the Court granted UPS's motion to strike, and Plaintiff's purported amended complaint was stricken from the record. (See Dkt. No. 27.) Accordingly, Young's state court original petition is the live pleading in this case. (See Compl.)
Recognizing that Young is a pro se litigant, the Court entered an order on October 8, 2024, directing Young to file a response to the motion for summary judgment by October 29, 2024, and setting forth the legal standard for responding to a motion for summary judgment. (Dkt. No. 30.) On October 17, 2024, Young filed a Motion to Remand to State Court (Dkt. No. 31), to which UPS filed a response (Dkt. No. 33), and on October 28, 2024, he filed a Motion to Appoint Counsel, (Dkt. No. 31). The October 29, 2024 deadline for Young to file a response to UPS's motion for summary judgment (Dkt. No. 25) has passed, and Young has not submitted a response setting forth any facts, evidence, or legal arguments in opposition to UPS's motion, despite being granted an extended deadline to do so. (See Dkt. No. 30.) Accordingly, the Motion for Summary Judgment (Dkt. 25) (hereinafter (“Mot.”)) is ripe for consideration.
The summary judgment evidence submitted by UPS will be cited in these Findings, Conclusions, and Recommendation as follows:
Exhibit A: Young Deposition Excerpts & Exhibits (Dkt. No. 25-1, MSJ APPX 02-099) (“Young Dep.”). Testimony will be cited to the corresponding transcript page number(s) and line number(s). Exhibits will be cited to the corresponding Bates Stamp page number.
Exhibit B: Declaration of Jeannette Mayorga & Attached Exhibits (Dkt. No. 25-2, MSJ APPX 100-169) (“Mayorga Decl.”). The declaration and exhibits will be cited to the corresponding Bates Stamp page number.
Exhibit C: Declaration of Engleburg Toney (Dkt. No. 25-3, MSJ APPX 171174) (“Toney Decl.”). The declaration will be cited to the corresponding Bates Stamp page number.
Exhibit D: Declaration of John Ferguson and Attached Exhibits (Dkt. No. 254, MSJ APPX 175-186 (“Ferguson Decl.”). The declaration and its exhibits will be cited to the appropriate Bates Stamp page number.
The facts recounted are based on declarations and other evidence adduced by UPS. Despite being advised by the Court of the procedural rules of a summary judgment motion, including the right to submit opposing evidence (see Dkt. No. 30), Young has not submitted a response in accordance with the Court's local rules and has not disputed any of the facts adduced by UPS.
UPS hired Young in or about 1996 as a part-time Hub Sorter at UPS's Dallas Hub facility, and at all times during his employment with UPS, he was covered by UPS's collective bargaining agreements with the Teamsters Union, including the National Master Agreement and the Teamsters Southern Region Supplemental Agreement to the National Master Agreement. (See Young Dep. at 92:21-23; 96:1821; Ex. 2, MSJ APPX 036-039; Ex. 3, MSJ APPX 040-049; see also Mayorga Decl. at ¶ 4, Ex. A, MSJ APPX 105-113; Ex. C, MSJ APPX 117-136; Toney Decl. at ¶ 4.)
Young was assigned to different job positions at the Dallas Hub facility during the course of his employment with UPS, and beginning in approximately 2017, he was classified as a full-time employee under “Article 22 Combo Ins/Ins” of the collective bargaining agreement (the “CBA”) between UPS and the Teamsters Union, which meant that Young worked a “combo” of two shifts in the Dallas Hub facility at night. (See Toney Decl. at ¶¶ 5, 7; Young Dep. at 119: 9-24; 122:2-6.)
On July 29, 2019, Young was issued a written warning based on his “unacceptable” attendance record. Young admitted that he did not have an excuse to be off work. (Young Dep. at 129:21-25; 130:2-4, 13-15; Ex. 7, MSJ APPX 052; Mayorga Decl. Ex. D, MSJ APPX 136-146.) On October 17, 2019, Young was issued a notice of intent to suspend for three days, due to his continued unacceptable attendance record, pursuant to Article 52 of UPS's Southern Region Supplemental collective bargaining agreement. Young admitted that he did not have any excuse to be off work. (Young Dep. at 131:25; 132:1-3; Ex. 8, MSJ APPX 053; Mayorga Decl. ¶ ¶ 7-8; Ex. D, MSJ APPX 136-146.) In late 2019, Young's job assignment was rebid, and he got “bumped” to a different job assignment due to his seniority under the CBA. He still remained classified as an Art. 22 Combo Ins/Ins employee. (Toney Decl. at ¶ 8.)
During the early part of 2020, Young was absent frequently. He had different excuses for not showing up, but his excuses were deemed not valid. (Toney Decl. at ¶ 10). On March 11, 2020, Young was issued a warning notice for his continued unacceptable attendance record. (Young Dep. at 150:8-14; 151:7-9; Ex. 9, MSJ APPX 054; Toney Decl. at ¶ 11; Mayorga Decl. Ex. D, MSJ APPX 136-146.) Young admitted that he did not have an excuse to be off work. (Young Dep. at 153:2-7.) On May 1, 2020, Young was issued a notice advising him that he had been absent without notice and stating that if he did not report to work by his scheduled start time on May 8, 2020, UPS would consider him as abandoning his job. (Toney Decl. at ¶ 12; Mayorga Decl. Ex. D, MSJ APPX 136-146.) Young did not report to work on May 8, 2020, and was therefore considered to be a voluntary quit. (Toney Decl. at ¶ 12; Young Dep. at 154: 16-19; Ex. 10, MSJ APPX 055.)
On January 26, 2021, UPS Labor Manager Jeannette Mayorga, met with Young and his Union representatives to resolve grievances that Young had filed over his 2020 disciplinary warnings and discharge. During this meeting, it was determined that Young's time off from work would be reduced to a suspension for his attendance, and he would be reinstated. A notice was issued to him that day confirming this agreement and advising Young that any future disregard when it comes to attendance would result in further disciplinary action up to and including termination. At this meeting, Young committed to Mayorga that he would be back at work on January 27, 2021, and he would be at work every day. (Mayorga Decl. at ¶ 13; Ex. D, MSJ APPX 136-146; Young Dep. at 170:24-25; Ex. 11, MSJ APPX 056.)
Young did not report back to work until February 1, 2021, and immediately began missing days of work. He did not have any FMLA leave available because he had not worked enough time. (Toney Decl. at ¶ 14; Young Dep. at 170:15-20; 180:9-11.) On February 26, 2021, Young was issued a notice advising that he had been absent without notice and that if he did not report to work by March 5, 2021, UPS would consider him to have abandoned his job and voluntarily quit. (Mayorga Decl. at ¶ ¶ 14-15; Ex. D, MSJ APPX 136-146; Young Dep. Ex. 12, MSJ 057.) On March 5, 2021, Young was issued another warning notice due to his continued unacceptable attendance record and was advised that future infractions would result in further discipline up to and including discharge. (Mayorga Decl. at ¶ 16; Ex. D, MSJ APPX 136-146; Young Dep. Ex. 13, MSJ APPX 058.)
On April 9, 2021, Young was issued another notice advising that he had been absent without notice and that if he did not report to work by April 9, 2021, UPS would consider him to have abandoned his job. (Mayorga Decl. at ¶ 17; Ex. D, MSJ APPX 136-146; Young Dep. Ex. 15, MSJ APPX 059.)
The last day Young performed any work at UPS was on April 27, 2021. (Young Dep. at 187:2-4.) When Young left work that night, he informed his Supervisor, Engleburg Toney, that he had an undisclosed medical condition due to an issue or incident that had occurred off the job. Toney informed Young that, because his medical issue was due to an incident occurring off the job, he would need to provide a “return to work” release to be able to return to work, which Young did not ever provide. Young also did not request an accommodation through UPS's Human Resources Processing Center (“HRSC”) for his alleged disability, and because he had not reported any on-the-job injury, Temporary Alternate Work (light duty) was not available to him under the CBA. (Toney Decl. at ¶ 21.)
Young continued to be absent from work after April 27, 2021, and he had no FMLA leave available, as he had not worked the requisite number of hours. (Toney Decl. at ¶ 22). On May 4, 2021, Young was issued another notice advising that he had been absent without notice and that if he did not report to work by May 11, 2021, UPS would consider him to have abandoned his job. (Mayorga Decl. at ¶ 19, Ex. D, MSJ APPX 136-146; Young Dep. at 191:22-25; 192:1-5; Ex. 16, MSJ APPX 060.) Young did not report to work on May 11, 2021, and on May 13, 2021, he was issued an official discharge notice advising him that his employment with UPS had been terminated. (Young Dep. at 194:3-9; 195:4-7l; Ex. 17, MSJ APPX 061; Mayorga Decl. at ¶ 20; Ex. D, MSJ APPX 136-146.) Accordingly, Young was terminated effective May 13, 2021 (Young Dep. at 204:16-20), and his employment relationship with UPS ended as of that date (Mayorga Decl. at ¶ 20; Ex. D, MSJ APPX 136-146).
Following his May 13, 2021 termination, Young filed grievances under the CBA's grievance procedure complaining of his termination. (Mayorga Decl. at ¶ 21; Young Dep. at 210:25; 211:1-25: Ex. 18, MSJ APPX 064-065.)
On June 7, 2021, Toney received an e-mail from Liberty Mutual, advising that Young had filed a workers' compensation claim alleging that he was injured on the job on April 27, 2021. This was the first time that Toney, or to Toney's knowledge, anyone else at UPS, was aware that Young was claiming he had been hurt on the job. (Toney Decl. at ¶ 25.) At his deposition, Young testified that, in “early June 2021” or “around June 4, 2021,” he reported to Liberty Mutual that he had been injured on the job on April 27, 2021. (Young Dep. at 76:1-5; 78:13-22; Ex. 20, MSJ APPX 066.)
On October 7, 2021, Young filed an EEOC charge against UPS, alleging disability discrimination under the Americans with Disabilities Act, age discrimination under the Age Discrimination in Employment Act of 1967, and retaliation under both statutes. (Young Dep. at 212:20, Ex. 22, MSJ APPX 067068).
On March 22, 2022, Young's discharge grievances were heard before the Southern Region Area Parcel Grievance Committee (“SRAPGC”). Young was present for this hearing. After considering UPS's and the Teamsters Union's evidence, as well as Young's testimony, the Committee voted to deny Young's grievances. (Mayorga Decl. at ¶ 24; Ex. G, MSJ APPX 169.) Pursuant to the CBA, the decision by the SRAPGC was final and binding. (Mayorga Decl. Ex. A, MSJ APPX 105-113; Young Dep. Ex. 3, MSJ APPX 040-049.)
On May 2, 2023, the EEOC issued Young a Notice of Right to Sue letter. (Young Dep. Ex. 29, MSJ APPX 069.) Young admitted that he received a copy of the Notice of Right to Sue letter by e-mail from the EEOC sometime between May 2 and May 5, 2023. (Young Dep. at 214: 13-19; 215: 2-21; 216: 17-21.)
II. LEGAL STANDARD
Summary judgment is proper when “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)(2). A factual “issue is material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). “A factual dispute is ‘genuine,' if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).
A party seeking summary judgment bears the initial burden of showing the absence of a genuine issue for trial. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995) (citation omitted). The movant's burden can be satisfied by demonstrating that there is an absence of evidence to support the nonmoving party's case, which the nonmovant bears the burden of proving at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its initial burden, the nonmovant must show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992) (citation omitted). The parties may satisfy their respective burdens “by tendering depositions, affidavits, and other competent evidence.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (citing Fed.R.Civ.P. 56(e); Int'l Shortstop, Inc. v. Rally's, 939 F.2d 1257, 1263 (5th Cir. 1991)).
The party opposing the summary judgment motion must identify specific evidence in the record and state the precise manner in which that evidence supports the party's claim. Esquivel v. McCarthy, No. 3:15-CV-1326-L, 2016 WL 6093327, at *2 (N.D. Tex. Oct. 18, 2016) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1988)). “Rule 56 does not impose a duty on the court to ‘sift through the record in search of evidence' to support the nonmovant's opposition to the motion for summary judgment.” Id. (citing Ragas, 136 F.3d at 458; Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)). All evidence must be viewed in the light most favorable to the party opposing the summary-judgment motion. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993) (citing Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986)).
When a nonmoving party does not file any response to a motion for summary judgment, the “failure to respond does not permit the court to enter a ‘default' summary judgment.” Boyd v. Fam. Dollar Stores of Texas, LLC, No. 3:22-CV-1368-D, 2023 WL 4141052, at *1 (N.D. Tex. June 22, 2023). But the Court is permitted to accept the moving party's evidence as undisputed. See Tutton v. Garland Indep. Sch. Dist., 733 F.Supp. 1113, 1117 (N.D. Tex. 1990). “A summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence.” Bookman v. Shubzda, 945 F.Supp. 999, 1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)).
And “a court may grant an unopposed summary judgment motion if the undisputed facts show that the movant is entitled to judgment as a matter of law.” Bryan v. Cano, No. 22-50035, 2022 WL 16756388, at *4 (5th Cir. Nov. 8, 2022) (cleaned up); accord Bustos v. Martini Club Inc., 599 F.3d 458, 468-69 (5th Cir. 2010) (although “a district court may not grant a motion for summary judgment merely because it is unopposed,” “[t]he defendants submitted competent summary judgment evidence showing that there were no genuine issues of fact for trial,” and the plaintiff “did not respond to the motion for summary judgment in the district court and therefore failed to carry his burden of showing that material factual issues existed” and so “cannot now assert that the district court's reliance on defendants' uncontested evidence was improper” (cleaned up)); Williams v. Sake Hibachi Sushi & Bar, Inc., No. 3:18-CV-517-D, 2020 WL 3317096, at *6 (N.D. Tex. June 18, 2020).
III. ANALYSIS
A. Young has not demonstrated that he is entitled to court-appointed counsel.
The Court first addresses Young's motion for the court to appoint counsel to represent him in the lawsuit that he filed. (See Dkt. No. 32.) Young asserts that he “tried to retain counsel and was unsuccessful” and attaches emails from two attorneys who declined to represent him in this matter. (See id. at 4-5.) One of the emails is from Jack Courtney, in the Law Offices of Winfree M. Courtney. (See id. at 4.) The record reflects that Mr. Courtney previously represented Young in this matter. (See Compl. at 7-9.) In an email to Young dated August 2, 2023, Mr. Courtney advised Young of a settlement offer from UPS and recommended that Young accept it. (See id. at 9.) Then, in a subsequent email to Young dated August 4, 2023, Mr. Courtney advised Young that he had notified UPS that Young had rejected the settlement offer and that Mr. Courtney no longer represented Young. (See id. at 7; see also Young Dep. at 217-19.)
A plaintiff in a civil action is not entitled to court-appointed counsel as a matter of right. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). “It should be allowed in civil actions only in exceptional cases.” Id. And the decision whether to appoint counsel for an indigent litigant rests within the sound discretion of the trial court. See 28 U.S.C. § 1915(e)(1). In determining whether exceptional circumstances exist and whether the court in its discretion should appoint counsel in such a case, the following factors are relevant: (1) the type and complexity of the case; (2) whether the plaintiff is capable of adequately representing himself; (3) the plaintiff's ability to adequately investigate and present his case; (4) the presence of evidence that consists largely of conflicting testimony so as to require skill in the presentation of evidence and in cross-examination; and (5) the likelihood that appointment will benefit the plaintiff, the court, and the defendants by shortening the trial and assisting in a just determination. Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
Young's claims are not particularly complex. Further, Young pleads his case understandably and adequately, and has sufficient command of the English language. He has successfully filed two lawsuits both in this Court and in state court, and the motions he has filed demonstrate a sufficient understanding of Court procedures. Thus, Young seems capable of representing himself in this litigation. Moreover, because the deadline to complete discovery, as well as the deadline to submit dispositive motions, have passed, it does not appear likely that appointment of counsel will shorten the litigation process, nor will it assist in a just resolution of the complaint.
In addition, it bears noting that Young has had that ability to secure representation, as he was previously represented in this matter. But the attorney terminated the representation after Young rejected a settlement offer that the attorney advised he should accept. (See Compl. at 7; Young Dep. at 217-19.) Although Young has a difficult burden to meet, all pro se plaintiffs who bring civil actions face a similar challenge. Young has not shown why this case is exceptional or how counsel is necessary to present meritorious issues to the Court. See 28 U.S.C. § 1915(e)(1). Accordingly, Young's motion to appoint counsel (Dkt. No. 32) is DENIED.
B. Young's Motion to Remand should be denied.
Turning next to Young's Motion to Remand, the undersigned finds no valid basis to remand this case to state court. UPS removed Young's lawsuit to this Court on the basis of federal question jurisdiction, pursuant to 28 U.S.C. § 1331. (See Dkt. No. 1.) A defendant may remove an action filed in state court to federal court if the action is one that could have originally been filed in federal court. See 28 U.S.C. § 1441(a). A federal district court has original jurisdiction of a civil action arising under federal law. 28 U.S.C. § 1331. A federal district court can also exercise supplemental jurisdiction of state claims that are transactionally related to the federal claim. 28 U.S.C. § 1367(a). “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under [28 U.S.C. §] 1446(a).” 28 U.S.C. § 1447(c).
“To determine whether the claim arises under federal law,” a district court must “examine the ‘well pleaded' allegations of the complaint.” Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003). To support removal under Section 1331, the party asserting federal jurisdiction “must locate [its] basis . . . in those allegations necessary to support the plaintiff's claim.” Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995). And those allegations must be present in a pleading at the time of removal. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (“To determine whether jurisdiction is present for removal, we consider the claims in the state court petition as they existed at the time of removal.” (citation omitted)); see also Turner v. GoAuto Ins. Co., 33 F.4th 214, 215 (5th Cir. 2022) (“When a case is removed from state court to federal court and the plaintiff seeks to have the case remanded, we evaluate the complaint at the time of removal.” (citation omitted)).
The undersigned finds that UPS has identified a basis for jurisdiction under Section 1331 at the time of removal because Young's complaint alleges federal statutory claims under the Americans with Disabilities Act (the “ADA”) and specifically asserts that this is a “civil suit against U.P.S. for wrongful termination and failure to comply with A.D.A.” (Compl. at 2.) Young also asserts that he “was terminated for filing a worker's comp claim . . . and being retaliated against.” (Compl. at 3.) Although Young does not expressly cite a specific cause of action under state law, to the extent his claim can be construed to assert a claim of workers' compensation retaliation under state law, this Court can exercise supplemental jurisdiction over any such state claims, as they are transactionally related to the federal claim. 28 U.S.C. § 1367(a).
Young's motion, on the other hand, offers no valid basis for determining that removal of this case was improper. (See Dkt. No. 31.) He merely states that he “would like to remand [his] case back to State Court where it originated” and asserts that UPS's counsel “ask me if I mind [if] he remove[d] my case from state court to federal. I feel he manipulated me[.]” (See id.) None of these reasons provide a valid basis to overcome the Court's jurisdiction based on a question of federal law. Nor was UPS required to gain Young's consent to remove the case because Young brought a federal question claim under the ADA.
Furthermore, even if Young's attempt to remand was based on a procedural defect because UPS's removal allegedly violated a statutory requirement, see 28 U.S.C. §§ 1441, 1446, he waived that right by not moving to remand within 30 days of November 3, 2023, see 28 U.S.C. § 1447(c); Schexnayder v. Entergy La., Inc., 394 F.3d 280, 284 (5th Cir. 2004) (“[A] motion for remand based on procedural defects” filed “more than 30 days after the removal of the action” is “outside of the district court's power to grant.” (citation omitted)). Young's motion to remand was not filed until October 17, 2024, well after the close of discovery on August 5, 2024, and almost a year after the Notice of Removal was filed. Accordingly, the undersigned recommends that Young's motion to remand be DENIED.
C. UPS is entitled to summary judgment on all of Young's claims.
UPS contends that Young's ADA claims are barred as a matter of law because he failed to file his lawsuit until more than 90 says after he received a Notice of Right to Sue letter from the EEOC. (See Mot. at 10-12.) UPS also contends that Young's failure to respond to UPS's Requests for Admissions (“RFA”) is an additional ground for dismissing Young's ADA claims as untimely. (See id. at 11-12.) UPS further contends that Young's ADA claims are barred because he has failed to establish a prima facie case of discrimination or retaliation. (See id. at 13-16.) Finally, with respect to any workers' compensation retaliation claim under state law, UPS argues that that such a claim is not only time barred but also preempted by federal law. (See id. at 16-24.)
As noted above, Young has not filed a response to UPS's summary judgment motion. Instead, on September 13, 2024, Young filed an “Objection” to the motion (Dkt. No. 26), which merely states: “We still have issues that [have] not been resolved.” (Id.) To the extent, that Young's “Objection” was intended to serve as his response to the motion, his response fails to dispute any of the factual allegations or legal arguments presented by UPS. (See id.) UPS filed a reply on September 27, 2024. (Dkt. No. 28.) Then, on October 7, 2023, Young filed a “Motion to Object to Defendant[']s Reply/Response” (Dkt. No. 29), wherein he states (among other things) that he has “medical issues documented as far back as [t]en [y]ears ago,” and he “object[s] to “Defendants saying there's no paperwork saying [he] has medical issues.” (See id.) Young provides no evidence and does not address any of the arguments in the UPS's motion or cite to any legal authorities. See N.D. Tex. L.R. 7.1(d). Thus, both Young's “objection” and his “motion to object” fail to present any factual allegations or legal arguments-or any evidence-in opposition to UPS's motion.
Furthermore, Young was advised by the Court of the procedural rules of a summary judgment motion, including his obligation as the nonmoving party to “set forth-and submit evidence of-specific facts showing a genuine issue for trial and not rest upon the allegations or denials contained in [his] pleadings.” (See Dkt. No. 30 (citations omitted).) Despite his submissions to the Court, Young has failed to meet this burden and has failed to dispute any of the factual allegations or legal arguments presented by UPS. Accordingly, the “Motion to Object to Defendant[']s Reply/Response” (Dkt. No. 29) is DENIED.
1. Young's deemed admissions can be used as evidence to satisfy UPS's summary judgment burden.
Pursuant to Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure, “admissions are proper summary judgment evidence that can be used to show that there is an absence of a genuine issue of material fact.” See Dingler v. Equifax Info. Servs., L.L.C., No. 3:12-CV-455-M-BF, 2014 WL 1317511, at *3 (N.D. Tex. Feb. 28, 2014), rec. adopted, 2014 WL 1325574 (N.D. Tex. Mar. 31, 2014) (citing Fed.R.Civ.P. 56(c)(1)(A)); Estate of Newton v. Grandstaff, No. 3:10-CV-809-L, 2013 WL 230252, at *3 (N.D. Tex. Jan. 18, 2013). “[D]eemed admissions under Rule 36 can disprove allegations in a plaintiff's complaint.” Dingler, 2014 WL 1317511, at *3 (citing Franklin v. BAC Home Loans Servicing, L.P., No. 3:10-CV-1174-M, 2012 WL 2679496, at *5 (N.D. Tex. June 6, 2012)); Cushingberry v. Airtran Airways, Inc., No. 3:04-CV-2301-M, 2005 WL 1875429, at *1-2 (N.D. Tex. Aug. 9, 2005). “The movant can satisfy its initial summary judgment burden by offering deemed admissions that rebut the plaintiff's claims.” Dingler, 2014 WL 1317511, at *3 (citing Franklin, 2012 WL 2679496, at *5). “A plaintiff cannot present the court with evidence that contradicts his deemed admissions to create a genuine issue of material fact at the summary judgment stage.” Dingler, 2014 WL 1317511, at *3 (citing In re Carney, 258 F.3d 415, 420 (5th Cir. 2001)).
In the Court's Initial Scheduling Order, issued on December 18, 2023, Young was instructed regarding his obligations as a pro se litigant, specifically including his obligation to read and follow the Court's local rules and the Federal Rules of Civil Procedure. (See Dkt. No. 10 at ¶1.)
Young admitted at his deposition that he received UPS's written discovery requests, which included UPS's RFA, sent to him by UPS's counsel via e-mail on March 25, 2024. (Young Dep. at 223: 22-25; 224: 1-10; Ex. 32, MSJ APPX 094096.) He also admitted that he received follow up e-mail correspondence from UPS's counsel on April 24, 2024, confirming UPS's agreement to extend the deadline for Young to respond to UPS's written discovery requests, including UPS's RFA, but only until May 6, 2024. (Young Dep. at 22: 14-23; Ex. 33, MSJ APPX 098-099.) Young, however, never responded to UPS's RFA and never served a written answer or objection to any of UPS's RFA. (Ferguson Decl. at ¶ 7).
RFA No. 4 stated: “Admit that your claims for disability discrimination and/or retaliation under the Americans [w]ith Disabilities Act as alleged in your Petition are time barred.” (Young Dep. at 223: 22-25; 224: 1-10; Ex. 32, MSJ APPX 095.) RFA No. 5 stated: Admit that your claims for wrongful termination for filing a worker's compensation claim as alleged in your Petition are time barred.” (Young Dep. at 223: 22-25; 224: 1-10, Ex. 32, MSJ APPX 095.)
In view of the foregoing, Young's deemed admissions that his ADA claims and his state law workers' compensation retaliation claims are barred as untimely are grounds for dismissal. But, as discussed below, the undersigned finds there are additional reasons supporting UPS's entitlement to summary judgment dismissal of Young's claims.
2. Young failed to file his lawsuit until more than 90 days after he received the EEOC's Notice of Right to Sue.
In deferral states such as Texas, an aggrieved party must file a charge of discrimination with the EEOC within 300 days after the alleged unlawful practice occurred. See 29 U.S.C. § 626(d)(1) (B); see also Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir.1988). “[I]f the EEOC determines that there is no reasonable cause to believe that an unlawful employment practice has occurred, the EEOC issues a letter informing the aggrieved party that it has the right to sue in federal district court . . . within 90 days of the receipt of the letter.” Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409 at 411 (5th Cir. 2003) (citing 29 C.F.R. § 1601.19(a)). “A plaintiff alleging employment discrimination must file a civil action no more than ninety days after [he] receives statutory notice of [his] right to sue from the EEOC. The ninety-day window is strictly construed and is a precondition to filing suit in district court.” Smith v. Alcorn State Univ., 451 Fed. App'x 464, 465 (5th Cir.2011) (quoting Duron v. Albertson's LLC, 560 F.3d 288, 290 (5th Cir.2009) (internal quotation marks omitted)).
“A deferral state is one in which (1) a state law prohibiting . . . discrimination in employment is in effect, and (2) a state authority has been set up to grant or seek relief from such discriminatory practice.” Barr v. Stripes L.L.C., No. 21-20278, 2022 WL 1044695, at *4 n.8 (5th Cir. Apr. 7, 2022) (citations and internal quotations omitted).
As noted above, Young has admitted that he received the EEOC's Notice of Right to Sue letter by e-mail from the EEOC sometime between May 2 and May 5, 2023. (Young Dep. at 214: 13-19; 215: 2-21; 216: 17-21.) Yet, Young did not file this lawsuit until October 2, 2023, almost five months after May 5, 2023. Because “[t]he ninety[-]day window is strictly construed and is a precondition to filing suit in district court,” Smith, 451 Fed. App'x at 465 (quoting Duron,560 F.3d at 290) (internal quotation marks omitted), Young's ADA claims are barred as a matter of law and should be dismissed. See Sharp v. Texas Dep't of Fam. & Protective Servs., No. 3:13-CV-4092-D, 2014 WL 5802860, at *1 (N.D. Tex. Nov. 7, 2014).
3. Young has failed to establish a prima facie case of disability discrimination or retaliation.
The ADA prohibits employment discrimination against a qualified individual based on the individual's disability. 42 U.S.C. § 12112(a); EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014). The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). The term “disability” is construed broadly to ensure coverage in accordance with the statute. 42 U.S.C. § 12102(4)(A).
To “be substantially limited means to be unable to perform a major life activity that the average person in the general population can perform, or to be significantly restricted in the ability to perform it.” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 614 (5th Cir. 2009) (citing 29 C.F.R. § 1630.2(j)). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
To make a prima facie showing of disability discrimination, a plaintiff must allege that: “(1) [he] has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability.” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016) (citing LHC Grp., Inc., 773 F.3d at 697). Adverse employment decisions are ‘ultimate employment decisions such as hiring, granting leave, discharging, promoting, . . . compensating,' or demoting.” Thompson v. Microsoft Corp., 2 F.4th 460, 470 (5th Cir. 2021).
The ADA also prohibits “an employer from ‘discriminat[ing] against any individual because such individual has opposed any act or practice made unlawful by [the Acts] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].'” January v. City of Huntsville, 74 F.4th 646 (5th Cir. 2023) (quoting 42 U.S.C. § 12203). The prima facie elements of a retaliation claim under the ADA, are: “(1) engagement in protected activity, (2) an adverse employment action, and (3) a causal connection between the two.” Id. (citing Nall v. BNSF Ry. Co., 917 F.3d 335, 348-49 (5th Cir. 2019)).
Regarding Young's alleged disability-the first prima facie element of a claim under the ADA-Young testified only generally at his deposition that “I was having problems with my back, and then I have high cholesterol. I have nerve issues in my foot.” (Young Dep. at 89: 21-24.) And while Young alleges that he has “medical issues documented as far back as [t]en [y]ears ago” and takes issue with UPS's assertion that there was no documentation of his medical issues (see Dkt. No. 29), he has presented no evidence to support his disability allegations.
Notably, when Young left work on April 27, 2021, he informed Toney that he had an undisclosed medical condition due to an issue or incident that had occurred off the job. (Toney Decl. at ¶ 21.) Toney advised Young that since his medical issue occurred off the job, he would need to provide a return-to-work release from a health care provider in order to return to work, but Young never provided such a release. (See id.) Toney also noted that, because Young had not claimed that he was injured on the job, Temporary Alternate Work (light duty) was not available to him under the CBA. (Id.)
Furthermore, UPS has provided ample evidence showing that Young was terminated only after he repeatedly failed to show up for work without notice and without an excuse, and he received extensive progressive disciplinary action over a period of several months in early 2021. (See Young Dep. Ex.'s 11-17, MSJ APPX 056-061; Mayorga Decl. Ex. D. MSJ APPX 136-146.) Young was ultimately terminated effective May 13, 2021, after UPS issued Young a written warning of its intent to discharge, in accordance with the requirements of the CBA. (See id.)
To the extent Young contends that UPS failed to accommodate an alleged disability because it did not provide him an accommodation after he reported on April 27, 2021 that he had medical condition that had occurred off the job, the summary judgment evidence contradicts his contention. As noted previously, the evidence establishes that Young repeatedly failed to provide any medical documentation, such as a medical excuse form or a return-to-work release from a medical provider. Therefore, Young has proved neither that he had a disability under the ADA, nor that he requested an accommodation from UPS for any alleged disability at any time prior to his termination.
Furthermore, Young testified at his deposition that he understood that if he wished to make a request for a job-related accommodation under the ADA, he should contact UPS's HRSC, as set forth in the “UPS and the ADA” Policy (Young Dep., Ex. 6, MSJ APPX 050-051; Mayorga Decl., Ex. B, MSJ APPX 114-116). (See Young Dep. at 110: 8-17.) Young further testified that there was nothing that would have prevented him from e-mailing HR to request an accommodation. (See id. at 110:18-19.) Young also testified that he never submitted a request for an accommodation to HR because “the HR Department was closed” and had been removed out of the building, and he had no way to contact them via e-mail at that time. (See Young Dep. at 69: 18-21; 94: 9-18.) Young admitted, however, that while he was employed at UPS, he had access to, and could log in to, UPS's intranet, UPSers.com, (see id. at 100: 201-21), which contains UPS's ADA policies. Young further admitted that he had the HR e-mail address, because he had communicated with HR via e-mail in connection with various Helpline complaints he submitted during and after his employment with UPS. (See id. at 103:23-25: 104:1-22.) Therefore, the evidence establishes that Young could have requested an accommodation via e-mail to UPS's HRSC but did not do so.
Accordingly, Young has also failed to provide any evidence of any causal connection between any protected activity and his termination, sufficient to support a claim of retaliation under the ADA. In fact, Young testified that he believed that his UPS manager, Jeremy Pugh, who issued and signed each of his warning letters in 2021, as well as his May 13, 2021 termination letter, treated him fairly. Young also testified that he did not feel that he was treated unfairly for any reason during the time that he worked for Mr. Pugh. (Young Dep. at 221:12-20.)
Because UPS has provided evidence that Young was terminated solely for legitimate, non-discriminatory, non-retaliatory reasons-namely, job abandonment and his overall poor attendance record-and Young has provided no evidence to the contrary, Young has failed to establish a prima facie case of disability discrimination or of retaliation. UPS is therefore entitled to summary judgment on Young's ADA claims for this additional reason.
4. Young's state law claim that he was terminated in retaliation for filing a workers' compensation claim also fails.
As noted above, in his state court original petition, Young has alleged that he “was terminated for filing a workers' comp claim in 2021.” (Compl. at 2.) Young does not cite a particular statute, but Chapter 451 of the Texas Labor Code appears to be the applicable Texas state law upon which his claim relies. Under Chapter 451 of the Texas Labor Code, “[a] person may not discharge or in any other manner discriminate against an employee because the employee has . . . filed a worker's compensation claim in good faith[.]” Tex. Lab. Code § 451.001(1). Young's state law claim fails for similar reasons as his ADA claims.
First, a Chapter 451 retaliation claim must be filed within two years after the cause of action accrues. See Tex. Civ. Prac. & Rem. Code § 16.003. In 1987, the Texas Court of Appeals held that causes of action brought under article 8307c (now Chapter 451 of the Texas Labor Code) are governed by a two-year statute of limitations, concluding that a plaintiff's cause of action accrues when facts authorizing the plaintiff to seek judicial relief are available. Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 132 (5th Cir. 1992) (citing Luna v. Frito-Lay, Inc., 726 S.W.2d 624 (Tex. App. 1987)).
Applying this test, the Fifth Circuit determined that “the date on which [the employee] received unequivocal notice of his termination or when a reasonable person would have known that he was terminated” is the accrual date. Thurman, 952 F.2d at 134. Furthermore, there must be “a present employer-employee relationship” to pursue an action under Article 8307c (now Chapter 451), and the employer's failure to recall the employee after he had been discharged was not actionable under Article 8307c. Thurman, 952 F.2d ar 137-38 (citing Stoker v. Furr's, 813 S.W.2d 719, 724 (Tex.App.-El Paso 1991, writ requested)); Smith v. Coffee's Shop for Boys and Men, Inc., 536 S.W.2d 83, 84-85 (Tex. App.-Amarillo 1976, no writ) (“Thus, clearly, the acts statutorily condemned are those occurring during the employment, and not afterwards.”). Thus, the limitations period begins running when an employee is notified that he or she has been discharged, not when the employer failed to re-employ the former employee. See Smith, 536 S.W.2d at 85.
Here, Young did not file his complaint until October 2, 2023, over two years and four months after his May 13, 2021 termination. (See Young Dep. at 204:16-20). Accordingly, Young's workers' compensation retaliation claim is time barred. Thurman, 952 F.2d at 134. Young has also admitted that he did not file his workers' compensation claim, or otherwise report an on-the-job injury until several weeks after he was terminated (see id. at 76:1-5; 78:13-22), which makes his claim not actionable under Chapter 451. Thurman, 952 F.2d ar 137-38. Accordingly, Young's state claim is barred as a matter of law for this additional reason and should be dismissed.
Young has also failed to establish a prima facie case that he was terminated in retaliation for filing a workers' compensation claim. To recover for retaliatory discharge under Chapter 451 of the Texas Labor Code, the plaintiff bears the overall burden of showing that his discharge would not have occurred absent his protected conduct. Tawil v. Cook Children's Healthcare Sys., 582 S.W.3d 669, 681 (Tex. App.- Fort Worth 2019, no pet.) (citing Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015)). This burden may be met with either direct or circumstantial evidence. Melendez, 477 S.W.3d at 312.
Circumstantial evidence of a causal link between an adverse employment action and the reporting of illegal conduct includes: “(1) knowledge of the report of illegal conduct, (2) expression of a negative attitude toward the employee's report of the conduct, (3) failure to adhere to established company policies regarding employment decisions, (4) discriminatory treatment in comparison to similarly situated employees, and (5) evidence that the stated reason for the adverse employment action was false.” Steen v. Crowley Indep. Sch. Dist., No. 4:15-CV-00982-O, 2017 WL 5642618, at *3 (N.D. Tex. Jan. 27, 2017) (citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996)). To survive dismissal, the plaintiff need not produce evidence as to each of these factors “but must produce evidence to sustain the majority of them.” Tawil, 582 S.W.3d at 685; see Texas Dep't of Motor Vehicles v. Bustillos, 630 S.W.3d 316, 331 (Tex. App. - El Paso 2021, no pet.).
In this case, Young cannot produce evidence of any of the above factors, since it is undisputed that he did not report that he had been injured on the job until well after he was terminated. UPS thus had no knowledge of any workers compensation claim ever being filed by Young as of the time UPS made the decision to terminate Young for job abandonment, and therefore could not have retaliated against him for filing a workers' compensation claim. Accordingly, Young's state law workers' compensation retaliation claim is barred as a matter of law on this additional ground and should be dismissed.
Finally, Young asserts-for the first time during his deposition testimony- that that he believed he was retaliated against because he had filed grievances related to his seniority and his job position. (Young Dep. at 61:2-16.) Young also stated his belief that since he filed these grievances related to the union contract, UPS Labor Manager Mayorga, “ha[d] been out to get [him.” (id.) UPS responds that any state law claim of retaliatory discharge associated with filing a grievance under a union contract is preempted by federal law. (See Mot. at 22-24.) Having already determined that summary judgment is warranted on all of Young's claims for multiple reasons, the undersigned finds it unnecessary to address this issue. Furthermore, no allegations related to any violation of the CBA were pleaded in Young's complaint; thus, this issue is not currently before the Court. (See Compl.)
For all the foregoing reasons, the undersigned concludes that UPS has met its burden of showing the absence of a genuine issue for trial and that it is entitled to judgment as a matter of law. Accordingly, summary judgment should be granted.
IV. RECOMMENDATION
For the reasons stated, the Court DENIES Young's Motion to Appoint Counsel (Dkt. No. 32) and DENIES Young's Motion to Object to Defendant's Reply (Dkt. No. 29).
Furthermore, the undersigned recommends that Young's Motion to Remand to State Court (Dkt. No. 31) should be DENIED, and UPS's Motion for Summary Judgment (Dkt. No. 25) should be GRANTED, and Young's claims should all be DISMISSED WITH PREJUDICE.
SO RECOMMENDED.
NOTICE OF RIGHT TO OBJECT
A copy of these findings, conclusions, and recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). To be specific, an objection must identify the finding or recommendation to which objection is made, state the basis for the objection, and indicate the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).