United States District Court, S.D. Mississippi, Southern Division
ROBERT P. HAYES PLAINTIFF
BRINK'S INCORPORATED, and JOHN DOES 1-5 DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is the  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. 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
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.
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.
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
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.
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).
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.”).
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.
The Legal Standard
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.
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