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Hayes v. Brink's, Inc.

United States District Court, S.D. Mississippi, Southern Division

December 15, 2017

ROBERT P. HAYES PLAINTIFF
v.
BRINK'S INCORPORATED, and JOHN DOES 1-5 DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is the [37] Motion for Summary Judgment filed by Defendant Brink's Incorporated. The plaintiff, who was initially represented by counsel but is now proceeding pro se, did not respond.[1] After due consideration of Brinks' submissions and the relevant law, it is the Court's opinion that there is no question of material fact for the jury regarding any of Hayes' employment-related claims. Accordingly, Brinks' Motion will be granted and this case dismissed.

         Background

         Hayes was first employed by Brink's in April 2005 as an armored car driver in St. Louis, Missouri. As a driver, Hayes was required by law to maintain a valid commercial driver's license issued by the U.S. Department of Transportation (“DOT”). (Def. Mot. Ex. A, ECF No. 37-1). In order to obtain such a license, Hayes was required to undergo a DOT physical examination conducted by a licensed medical examiner listed on the Federal Motor Carrier Safety Administration (“FMCSA”) National Registry. (Id.). Additionally, Hayes was periodically required to undergo additional physical examinations in order to maintain his commercial license. Id.

         An essential function of Hayes' position was that he be able to carry a Brink's-issued firearm at all times during his employment. (Def. Mot. Ex. A, ECF No. 37-1). Pursuant to Brink's policy, to be able to carry a Brink's-issued firearm, Hayes was required to pass Brink's written Firearms Test and Brink's Range Qualification by hitting a minimum of forty-eight out of sixty attempted target shots. (Id.). Hayes testified that he was required to pass the Range Qualification every six (6) months during his employment with Brink's. (Def. Mot. Ex. D 63, ECF No. 37-4).

         In October 2014, Hayes moved to the Mississippi Gulf Coast and was permitted to transfer to Brink's location in Biloxi, Mississippi. Approximately three months after he transferred to Mississippi, on December 20, 2014, Hayes failed to qualify with a firearm when he missed twenty (20) out of sixty (60) attempted shots at the FBI Q Target which Brink's uses as a qualifying target range. (Id. at 68-72; Def. Mot. Ex. A, ECF No. 37-1). On his second attempt that day, Hayes missed twenty-seven out of sixty attempted shots. (Id.). Hayes was instructed to practice his marksmanship skills and was permitted to attempt to qualify again approximately one month later on January 24, 2015. (Def. Mot. Ex. D 72, ECF No. 37-4). However, Hayes admits he did not follow his supervisor's instructions to practice, and he again failed to qualify after three attempts that day. (Id. at 72, 75-76, 103). Brink's permitted Hayes to attempt to qualify on a third occasion on January 31, 2015, but Hayes again failed to qualify. Having given Hayes three opportunities to qualify to carry a firearm, Brink's placed Hayes on a thirty day suspension effective February 9, 2015. (Def. Mot. Ex. A-5, ECF No. 37-1). Hayes was informed that if he was still unable to qualify with a firearm after thirty days, his employment could be subject to termination. Id. Brink's policies provide that, “It is the responsibility of the employee to acquire and maintain all licenses and permits required for [the employee] to perform your security, protection and safety duties.” (Def. Mot. Ex. A-1, at 10, ECF No. 37-1) (ECF pagination). While Brink's agrees to “pay for required gun and guard licenses and related required training within its discretion, ” Brink's policies inform employees that if they are “not granted a required permit or license, or if the permit or license is withdrawn or expires, [the employee] may be immediately suspended or discharged.” Id.

         On or about February 10, 2015, Hayes went to the emergency room and was diagnosed with kidney failure. (Def. Mot. Ex. D 79-82, ECF No. 37-4). Hayes requested and was granted FMLA leave, which expired May 5, 2015. (Def. Mot. Ex. A-6; A-7, ECF No. 37-1). After May 5, 2015, Hayes was unable to return to work and was granted short term disability benefits by Cigna for a total period of more than six months. (Def. Mot. Ex. A-9, ECF No. 37-1). Throughout Hayes' leave of absence, Cigna communicated the status of his leave and informed him on multiple occasions regarding the requirement that he provide information regarding his ability to return to work. (Id.).

         While out on medical leave, Hayes' commercial driver's license expired. Hayes testified that he attempted to renew his license but the Brink's-approved DOT physician refused to renew his license. (Def. Mot. Ex. D 144-45, ECF No. 37-4) Hayes' medical records state that as of March 18, 2015, “he does not qualify for a DOT card and this was explained to him.” (Def. Mot. Ex. E, ECF No. 37-4). Hayes admits he was never able to obtain a commercial drivers' license during his employment after his diagnosis. (Def. Mot. Ex. D 204, ECF No. 37-4). Hayes also admits he was never able to requalify with a firearm. (Id., at 87-92). According to Hayes, his physician would not clear him to shoot a firearm because he was not able to lift more than ten (10) pounds and “shooting a gun would have been a jerking in [his] stomach.” (Id. at 87). Hayes never provided Brink's with any information indicating he had been released by his physician to attempt to requalify with a firearm. (Def. Mot. Ex. A 5, ECF No. 37-1).

         Brink's notified Hayes via letter dated August 21, 2015 that, because his leave of absence had exceeded six months and he had not provided Brink's with information indicating his ability to return to work, his employment would be terminated on August 28, 2015 unless Hayes provided Brink's with information prior to that date regarding his ability to return. (Id.). Having heard nothing as to Hayes' ability to return, Brink's administratively terminated Hayes' employment effective August 28, 2015. (Id.). Hayes was notified in writing of his termination and also provided notification of his rights for continuation of benefits under the Consolidated Omnibus Budget Reconciliation Act (“COBRA.”). (Id.).

         Contemporaneous to the termination of his employment from Brink's or shortly thereafter, Hayes applied for and was granted Social Security disability benefits, which he still currently receives. (Def. Mot. Ex. F, ECF No. 37-6). According to the Social Security Administration, Hayes' qualifying disability began February 25, 2015 - several weeks after he was suspended for failing to qualify with a firearm and six months prior to the termination of his employment. Id.

         Discussion

         A. The Legal Standard

         Summary judgment is mandated against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party has the burden of proof at trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual controversies are resolved in favor of the nonmoving party, but only when there is an actual controversy; that is, when both parties have submitted evidence of contradictory facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Hayes has not submitted any argument or evidence in opposition to Brinks' Motion. Nevertheless, Brink's has the burden of establishing the absence of a genuine issue of material fact and, unless it has done so, the Court may not grant the Motion, regardless of whether any response was filed. Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).

         B. Americans with ...


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