United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Defendant Huntington Ingalls, Incorporated's Motion for Summary Judgment . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the motion should be granted in part and denied in part.
This action involves alleged employment discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff George Byrd was employed by Huntington Ingalls, Incorporated ("Huntington"), and its predecessors in interest, as a sheet metal mechanic in its shipyard in Pascagoula, Mississippi for approximately thirty-three (33) years. Byrd's employment with Huntington was terminated on April 24, 2012. Huntington's position is that Byrd was discharged as a result of an incident occurring on March 21, 2012, in which Byrd left his workstation without permission, absconded with a company-owned Kawasaki Mule vehicle that resembles a golf cart (the "Mule"), and wrecked the Mule on his way out of the shipyard. According to the Complaint, Byrd claims that he was terminated because of his age and because Huntington regarded him as disabled. Byrd was fifty-four (54) years old at the time of his termination and has Type 2 diabetes. Further, Byrd was placed under certain work restrictions relating to a shoulder injury in January of 2012. Byrd also alleges that he was subjected to a hostile work environment in violation of the ADA and ADEA in March of 2012.
Byrd began working at the shipyard in 1975. ( See Huntington 30(b)(6) Dep. [35-3] 10:9-18.) Byrd left this employment in 2005 due to Hurricane Katrina. ( See Byrd Decl. [35-1] at ¶ 2.) Byrd rejoined the shipyard in April of 2009 in a supervisory position, and stayed in that role until February of 2010, when he voluntarily went back "to the hands-on, non-supervisory work" that he enjoyed the most and presented less stress. ( See Byrd Decl. [35-1] at ¶ 2.)
Byrd injured his right shoulder at work in 2010, and then reinjured it in January of 2012 in connection with falling out of a forklift. ( See Byrd Dep. [35-2] 6:25-7:16.) On January 24, 2012, Dr. Donnis Harrison, an orthopedic surgeon, released Byrd to return "to light duty work" under the following restrictions: "No overhead work. No lifting over 15 pounds." (Orthopedic Records attached to Byrd Decl. [35-1 at ECF p. 8].) These restrictions remained in place through March 21, 2012, the last day Byrd actually worked at the shipyard. ( See Byrd Dep. [35-2] 11:4-6.)
Byrd was initially assigned light duty work upon his return to the shipyard in late January of 2012. ( See Byrd Dep. [35-2] 11:7-10.) Byrd worked with Robert Hardy at that time. Generally, Byrd operated a forklift or crane and Hardy performed the manual tasks. ( See Byrd Dep. [35-2] 11:11-20.) Byrd did not exceed his restrictions while working with Hardy. ( See Byrd Dep. [35-2] 12:4-7.)
Byrd contends that his problems at work relating to this litigation started in March of 2012, when he began to work for foreman Ryan Rawls. On or about March 12, Rawls and Byrd had a discussion regarding Byrd's restrictions and Rawls told Byrd he "ought to go have it [shoulder surgery] done, you know, get it done faster." (Byrd Dep. [35-2] 16:12-22.) Also on or about this date, Rawls gave Byrd an assignment, the details of which Byrd could not recall at his deposition, that exceeded Byrd's restrictions. ( See Byrd Dep. [35-2] 12:23-13:5.) Byrd completed the assignment without advising Rawls that it violated his restrictions. ( See Byrd Dep. [35-2] 13:14-22.) On or about March 19, Rawls assigned Byrd "a big ventilation job" that involved 11-gauge galvanized steel. ( See Byrd Dep. [35-2] 12:23-25, 13:23-14:8.) Byrd told Rawls that the job was too big and outside of his restrictions. ( See Byrd Dep. [35-2] 14:6-8.) Rawls then "went and found... [Byrd] another little job" that he was capable of performing. (Byrd Dep. [35-2] 14:18-23.) On March 20, Rawls told Byrd to roll some sheets of aluminum. ( See Byrd Dep. [35-2] 17:17-18:6.) Byrd believed that the weight of the sheets exceeded his restrictions, but he did not advise Rawls of this circumstance. ( See Byrd Dep. [35-2] 20:24-21:10.) While Byrd was waiting for another employee to finish using a mechanical roller, Rawls told Byrd to go ahead and use a manual roller, which was larger and more difficult to operate. ( See Byrd Dep. [35-2] 19:21-20:12.) Byrd started hurting after rolling one sheet of aluminum; he thus stopped and went and told Rawls that he was in pain and that the roller was too heavy for him. ( See Byrd Dep. [35-2] 21:12-19.) Rawls stated, "[W]ell, we don't want you to hurt yourself but we need to get that one out." (Byrd Dep. [35-2] 21:20-24.) It is not clear if Byrd rolled any more sheets of aluminum based on the following deposition testimony:
Q. Okay. After Rawls said, we don't want you to hurt yourself, did you roll anything else or do you remember?
A. I don't think I rolled anymore. I think I rolled one or two, then stopped because I was hurting.
(Byrd Dep. [35-2] 22:2-6.)
Matters came to a head for Byrd during his shift on March 21. At the beginning of the shift, Byrd learned that the only work available was a task involving galvanized steel that exceeded his restrictions. ( See Byrd Dep. [35-2] 27:20-28:14.) Byrd and general foreman Tommy Bennett, who was over both Byrd and Rawls, then had a heated discussion regarding Byrd's restrictions and available job assignments. At some point, Bennett stated that Rawls had told him Byrd "wanted to go sit over there and wait for Reggie to get through" with the mechanical roller the previous night. (Byrd Dep. [35-2] 28:19-23.) Byrd took offense to this statement and replied that he "didn't go over there to sit down and wait on him all night." (Byrd Dep. [35-2] 28:19-23.) Byrd subsequently told Bennett that he had to find work within his restrictions or Bennett could send him home. ( See Byrd Dep. [35-2] 29:11-13.) Bennett advised Byrd that he would not be paid if he went home. ( See Byrd Dep. [35-2] 29:13-15.) Byrd also told Bennett that he had been at the shipyard for thirty (30) years and did not feel like he was being treated right. ( See Byrd Dep. [35-2] 37:4-5.) Bennett then made a remark to the effect that "everybody that's been here 30 years is gone...." (Byrd Dep. [35-2] 37:6-8.) Purportedly, Bennett was grinning and smiling, which got under Byrd's skin. ( See Byrd Dep. [35-2] 31:17-21.) Byrd eventually said something he "shouldn't have, " when he asked Bennett "if he was F'ing deaf because" the two were "just going back and forth saying the same thing" regarding work available for Byrd within his restrictions. (Byrd Dep. [35-2] 29:21-24.) Bennett then told Byrd to go back to his work table and that he would find something for Byrd to do. ( See Byrd Dep. [35-2] 34:4-7.) Bennett threw a small job, something that would take one or two hours to complete, on Byrd's table approximately twenty to thirty minutes later. ( See Byrd Dep. [35-2] 29:25-30:3, 34:13-24.) This job was within Byrd's restrictions. ( See Byrd Dep. [35-2] 34:25-35:1.) Bennett also asked work leaderman Criss Tanner to prepare some additional small tasks for Byrd. ( See Tanner Decl. [28-4] at ¶ 3; Byrd Dep. [35-2] 91:12-22; Bennett Decl. [37-2] at ¶ 5.)
Byrd worked on the job given to him by Bennett for a few minutes until he saw shot superintendent Darrel Brewer, who was Bennett's boss, walk through the area. ( See Byrd Dep. [35-2] 35:9-36:11.) Byrd went and spoke to Brewer because he was worried that after he finished the small job he would have to work on the other job that exceeded his restrictions. ( See Byrd Dep. [35-2] 35:12-17.) After Byrd told Brewer about his interactions with Bennett, Brewer said, "[W]e don't want you to work past your restriction.... I'll talk to Tommy [Bennett] tomorrow, we'll take care of this." (Byrd Dep. [35-2] 37:14-22.) Brewer also told Byrd not to do anything that exceeded his restrictions. ( See Byrd Dep. [35-2] 79:25-80:8.) Byrd then went back to his work area. ( See Byrd Dep. [35-2] 38:18-20.) Byrd did not complete the small job given to him by Bennett. ( See Byrd Dep. [35-2] 39:4-5.) Byrd spoke to co-worker Alex McMillan for a minute; then his nose started to bleed and his glasses fogged up. ( See Byrd Dep. [35-2] 39:6-13.) Everything then went "blank" and the next thing Byrd remembered was calling his wife while driving home from the shipyard. ( See Byrd Dep. [35-2] 40:8-19.)
The summary judgment record evidences the following particulars during Byrd's blackout. Byrd walked out of the shop and drove away in the company-owned Mule, which he was not authorized to operate. ( See Tanner Decl. [28-4] at ¶ 3; Craft Decl. [28-5] at ¶ 3; Byrd Dep. [35-2] 54:14-16.) Byrd ran the Mule into a port-a-john with such force that he was thrown from the vehicle. ( See Craft Decl. [28-5] at ¶ 3.) He then got back into the Mule and proceeded to drive toward the company gate. ( See Craft Decl. [28-5] at ¶ 3.) Byrd drove past Steve Craft and asked, "What the f_ _ _ are you looking at?" (Craft Decl. [28-5] at ¶ 3.) Craft followed on foot and noticed that Byrd had also driven the Mule into a garbage can near the shipyard gate. ( See Craft Decl. [28-5] at ¶ 3.) Craft reported the incident to the security department. ( See Craft Decl. [28-5] at ¶ 3.) A Security Report [28-6] from the shipyard indicates that Byrd was charged with reckless driving, two counts of hit and run, and stealing a company vehicle.
Byrd was shaky and confused when he arrived home from the shipyard. ( See Melissa Byrd Decl. [35-4] at ¶ 7.) Byrd's wife, Melissa Byrd, prepared him a banana and soft drink, while his adult son, John Byrd, asked him what happened. Byrd was unable to provide intelligible answers. ( See Melissa Byrd Decl. [35-4] at ¶ 7; John Byrd Decl. [35-5] at ¶ 4.) Byrd's wife and son then took him to the emergency room at Singing River Hospital. ( See Melissa Byrd Decl. [35-4] at ¶ 9; John Byrd Decl. [35-5] at ¶ 5.) The medical record from this visit indicates, inter alia, that Byrd was alert and oriented; that there was a scrape on Byrd's right wrist, but it was not fractured; and, that Byrd's blood sugar was within normal limits. ( See Hospital Records [28-8]; Byrd Dep. [35-2] 67:2-15.) Byrd was discharged in stable condition. Byrd and his wife contend that the emergency room physician said the incident was likely caused by a blood sugar imbalance, although there is nothing in the medical record to that effect. ( See Byrd Decl. [35-1] at ¶ 8; Melissa Byrd Decl. [35-4] at ¶ 9.) Also, Byrd's family physician purportedly told him at some point that his blood "sugar fell out" that night. (Byrd Dep. [35-2] 81:15-19, 112:17-23.)
Byrd never returned to work for Huntington at the shipyard. ( See Byrd Dep. [35-2] 77:13-15.) A psychologist employed by Huntington told Byrd's wife either that he should stay home until he could be seen by his treating physician or that he should take off the rest of the week. ( See Byrd Dep. [35-2] 76:23-77:8; Melissa Byrd Decl. [35-4] at ¶ 10.) On March 27, Byrd's orthopedist, Dr. Harrison, excused Byrd from work pending his shoulder surgery, which was scheduled for April 3. ( See Orthopedic Records attached to Byrd Decl. [35-1 at ECF p. 9]; Byrd Dep. [35-2] 78:12-14.) Byrd underwent shoulder surgery on April 3. ( See Byrd Decl. [35-1] at ¶ 10.)
At Huntington's request, Byrd reported to the shipyard on April 24 for a meeting with Brewer, Jerry Shelly (a union steward), and James Moss (a labor relations representative). ( See Moss Decl. [28-1] at ¶¶ 2, 4; Byrd Dep. [35-2] 52:21-53:5.) Moss had previously conducted an investigation regarding the March 21 incident and made the decision, in coordination with his supervisor Ray Doty, that Byrd should be discharged for misconduct. ( See Moss Decl. [28-1] at ¶¶ 3-4.) At the meeting, Byrd was notified that he was being terminated for misconduct. ( See Moss Decl. [28-1] at ¶ 4; Byrd Dep. [35-2] 51:20-22.) Byrd understood that the misconduct encompassed him leaving his workstation, taking the Mule without authority, wrecking the Mule, and walking out of the gate. ( See Byrd Dep. [35-2] 51:23-52:2.) Moss asked Byrd about his blood sugar on the date of the incident and Byrd stated that it was normal according to the hospital records. ( See Moss Decl. [28-1] at ¶ 4; Byrd Dep. [35-2] 67:16-68:1.) Moss also asked Byrd what happened and Byrd stated, "They knew I was hurt and I couldn't pull my load and they wouldn't - they just kept pushing me." (Byrd Dep. [35-2] 68:24-69:2.) Byrd also told Moss, "I don't remember nothing. I don't remember none of that." (Byrd Dep. [35-2] 71:13-14.) Byrd did not tell Moss about his glasses fogging up or his nose bleeding at the time of the incident. ( See Byrd Dep. [35-2 ] 69:24-70:5.)
On September 21, 2012, Byrd filed his Charge of Discrimination [28-2] with the Equal Employment Opportunity Commission ("EEOC"). On July 31, 2013, the EEOC terminated its proceeding and issued its Notice of Right to Sue [28-11]. On October 17, 2013, Byrd filed suit against Huntington in the Circuit Court of Jackson County, Mississippi. ( See Compl. [1-2 at ECF p. 6].) In addition to alleging violations of the ADA and ADEA, the Complaint asserts a state law claim for intentional infliction of emotional distress. On March 12, 2014, Huntington removed the proceeding to this Court on the basis of federal question subject matter jurisdiction under Title 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367. ( See Notice of Removal .) On March 19, 2014, Huntington filed its Answer , denying any and all liability. Huntington also asserts a counterclaim on the basis that "Byrd's actions, whether negligent or intentional, damaged the... [Mule] beyond repair." (Answer  at p. 7.)
On February 13, 2015, Huntington filed its Motion for Summary Judgment . Huntington contends that it is entitled to judgment as a matter of law on Byrd's claims and its counterclaim. The motion has been fully briefed and the Court is ready to rule.
A. Standard of Review
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if 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(a). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case.'" Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (quoting Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004)). However, "if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). If the movant meets his burden, the nonmovant must go beyond the pleadings and point out specific facts showing the existence of a genuine issue for trial. Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citation omitted). "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citing Sec. & Exch. Comm'n v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
1. Hostile Work Environment Under the ADA and ADEA
As an initial matter, Huntington asserts that Byrd's hostile work environment claims under the ADA and ADEA are time-barred. "A Title VII claimant must file charges with the EEOC within 180 days after the alleged illegal conduct." Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999) (citing 42 U.S.C. § 2000e-5(e)(1)). A plaintiff alleging discrimination under the ADEA must also file an EEOC charge "within 180 days after the alleged unlawful practice occurred." Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 455 (5th Cir. 2011) (quoting 29 U.S.C. § 626(d)(1)(A)). The ADA incorporates by reference Title VII's administrative prerequisites for filing suit in federal court. See 42 U.S.C. § 12117(a); Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). The 180-day period acts as a statute of limitations. See Hood, 168 F.3d at 232 (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). Discrete employment actions, "such as termination, failure to promote, denial of transfer, or refusal to hire, " occurring more than 180 days before an EEOC charge is filed are not actionable. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Under a continuing violation theory of recovery such as a hostile work environment claim, "a plaintiff is relieved of establishing that all of the alleged discriminatory conduct occurred within the actionable period, if the plaintiff can show a series of related acts, one or more of which falls within the limitations period." Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004) (citing Felton v. Polles, 315 F.3d 470, 487 (5th Cir. 2002)). This is because a hostile work environment claim is comprised of multiple "acts that collectively constitute one unlawful employment practice.'" Morgan, 536 U.S. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)).
Huntington asserts that Byrd never worked at the shipyard subsequent to March 21, 2012, and could not have been subjected to a hostile environment based on age or disability after that date. Further, Byrd's hostile environment claims are time-barred because Byrd submitted his EEOC charge on September 21, 2012, 184 days subsequent to March 21. Byrd invokes the continuing violation doctrine in opposition to dismissal. Huntington bears the burden of proof with respect to establishing its statute of limitations affirmative defense. See Citigroup, Inc. v. Fed. Ins. Co., 649 F.3d 367, 371 (5th Cir. 2011) (citing Fontenot, 780 F.2d at 1194). Yet, the burden of demonstrating the applicability of the continuing violation doctrine lies with Byrd. See Tillman v. S. Wood Preserving of Hattiesburg, Inc., 377 Fed.Appx. 346, 349-50 (5th Cir. 2010) ("This court has repeatedly held that the continuing violation doctrine does not automatically attach in hostile work environment cases, and the burden remains on the ...