Alborz Datar v. National Oilwell Varco, L.P. ( 2015 )

ACCEPTED
01-15-00541-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/31/2015 1:36:09 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00541-cv
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT HOUSTON, TEXAS
HOUSTON, TEXAS 8/31/2015 1:36:09 PM
CHRISTOPHER A. PRINE
Clerk
ALBORZ DATAR
Appellant
vs.
NATIONAL OILWELL VARCO, L.P.
Appellee
APPELLANT’S BRIEF
Nitin Sud
Sud Law P.C.
State Bar No. 24051399
6750 West Loop South
Suite 920
Bellaire, Texas 77401
Phone: 832-623-6420
Fax: 832-304-2552
Email: nsud@sudemploymentlaw.com
Attorney for Appellant, Alborz Datar
ORAL ARGUMENT REQUESTED
i
IDENTITY OF PARTIES AND COUNSEL
Alborz Datar (“Datar”) – Plaintiff/Appellant
Nitin Sud
Sud Law P.C.
6750 West Loop South
Suite 920
Bellaire, TX 77401
Attorney for Plaintiff/Appellant Datar
National Oilwell Varco, L.P. (“NOV”) – Defendant/Appellee
Christopher E. Moore
Christine M. White
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
701 Poydras Street
Suite 3500
New Orleans, LA 70139
Attorneys for Defendant/Appellee NOV
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ……………………………… ii
TABLE OF AUTHORITIES ………………………………………….…… v
STATEMENT OF THE CASE ……………………………………….…… vii
STATEMENT REGARDING ORAL ARGUMENT ……………….……... ix
ISSUES PRESENTED …………………………………………………….. ix
SUMMARY OF ARGUMENT ……………………………………….…… 1
STATEMENT OF FACTS ………………………………………………… 2
I. NOV’s Progressive Discipline Policy ………………………… 2
II. Datar’s Employment ………………………………………….. 2
III. Datar’s Complaint of Sexual Harassment …………………….. 3
IV. Datar’s Injury, Disabilities, and Physical Limitations ………… 5
V. NOV Fires Datar …………………………………………….… 7
VI. Mike Henley’s Knowledge Regarding Datar’s Injury
and Progressive Discipline Policy ……………………………. 8
VII. NOV’s Progressive Discipline Practice Was Not Followed ….. 9
ARGUMENTS ……………………………………………………………... 9
I. Summary Judgment Standard ………………………………… 9
II. Disability Discrimination – Failure to Accommodate ………… 10
A. Datar has a disability ……………………………………… 10
B. NOV had notice of Datar’s disability ……………………… 12
C. There is a fact question as to whether NOV refused
to make accommodations for Datar or failed to
engage in an interactive process ………………………….. 13
III. TCHRA Retaliation …………………………………………... 16
A. Datar engaged in a protected activity …………………….. 16
B. NOV has not asserted a legitimate non-discriminatory
reason for terminating Datar ……………………………… 18
iii
C. NOV’s reason for terminating Datar is pretext for
unlawful retaliation ……………………………………….. 18
IV. Workers’ Compensation Retaliation ………………………….. 21
PRAYER …………………………………………………………………..... 23
CERTIFICATE OF WORD COMPLIANCE ………………………………. 24
CERTIFICATE OF SERVICE ……………………………………………… 24
APPENDIX INDEX ………………………………………………………… 25
iv
TABLE OF AUTHORITIES
Cases
Bell v. Conopco, Inc.,
186 F.3d 1099 (8th Cir. 1999) ………………………………………. 19
Benners v. Blanks Color Imaging, Inc.,
133 S.W.3d 364 (Tex. App. – Dallas 2004, no pet.) ………………… 21
Butler v. La. Dep’t of Pub. Safety & Corr.,
2013 U.S. Dist. LEXIS 76467 (M.D. La. May 29, 2013) …………… 15
Chhim v. University of Houston,
76 S.W.3d 210 (Tex. App. – Texarkana 2002, pet. denied) …………. 21
City of Waco v. Lopez,
259 S.W.3d 147 (Tex. 2008) ………………………………………… 16
Cont’l Coffee Prods. Co. v. Cazarez,
937 S.W.2d 444 (Tex. 1996) ………………………………………… 22
Cox & Smith Inc. 974 S.W.2d 217
(Tex. App. – San Antonio 1998, pet. denied) ……………………….. 16, 17
Duhon v. Bone & Joint Physical Therapy Clinics,
947 S.W.2d 316 (Tex. App.-Beaumont 1997, no writ) ……………… 21
Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C.,
778 F.3d 473 (5th Cir. 2015) ………………………………………… 13
Evans v. City of Houston,
246 F.3d 344 (5th Cir. 2001) ………………………………………… 20
Feist v. Louisiana, Dep’t of Justice, Office of the Atty. Gen.,
730 F.3d 450 (5th Cir. 2013) ………………………………………… 19
Fort Brown Villas III Condo. Assoc., Inc. v. Gillenwater,
285 S.W.3d 879 (Tex. 2009) ………………………………………… 9
v
Garrett v. Constar Inc.,
1999 U.S. Dist. LEXIS 9361, (N.D. Tex. May 25, 1999) …………… 20
Gonzalez v. Tex. HHS Comm’n,
U.S. Dist. LEXIS 161706 (W.D. Tex. Nov. 19, 2014) ………………. 12
Hovorka v. Cmty. Health Sys. Inc.,
262 S.W.3d 503 (Tex. App. – El Paso 2008, no pet.) …………….….. 10
Johnson v. City of Houston,
203 S.W.3d 7 (Tex. App. – Houston [14th Dist.] 2006, pet. denied) … 22
Limestone v. Prods. Distrib., Inc. v. McNamara,
71 S.W.3d 308 (Tex. 2002) …………………………………………. 9
Machinchick v. PB Power, Inc.,
398 F.3d 345 (5th Cir. 2005) ………………………………………… 19
Miles-Hickman v. David Powers Homes, Inc.,
613 F. Supp. 2d 872 (S.D. Tex. 2009) ………………………………. 20
Modjeska v. UPS,
2014 U.S. Dist. LEXIS 148363 (E.D. Wisc. Oct. 16, 2014) ………… 11
Molina v. DSI Renal, Inc.,
840 F. Supp. 2d 984 (W.D. Tex. 2011) ……………………………… 11
Nelson v. Regions Mortg., Inc.,
170 S.W.3d 858 (Tex. App. – Dallas 2005, no pet.) …………….…. 10
Parker v. Valerus Compression Servs., LP,
365 S.W.3d 61 (Tex. App. – Houston [1st Dist.] 2011, pet. denied) … 22
Rhines v. Salinas Constr. Techs., Ltd.,
2012 U.S. Dist. LEXIS 110457 (S.D. Tex. Aug. 7, 2012) ………….. 20
St. Mary’s Honor Center v. Hicks,
209 U.S. 502 (1993) ……………………………………………….. 19
Summers v. Altarum Inst., Corp.,
vi
740 F.3d 325 (4th Cir. 2014) …………………………………….… 11
Taylor v. Principal Fin. Group,
93 F.3d 155 (5th Cir. 1996) ………………………………………….. 14
Terry v. S. Floral Co.,
927 S.W.2d 254 (Tex. App. – Houston [1st Dist.] 1996, no writ) …… 21
Tex. Dep’t of Family & Protective Servs. v. Howard,
429 S.W.3d 782 (Tex. App. – Dallas 2014, pet. denied) …………….. 10
Tex. Div.-Tranter v. Carrozza,
876 S.W.2d, 312 (Tex. 1994) ……………………………………….. 10
Turner v. Health Care Serv. Corp.,
2009 U.S. Dist. LEXIS 37331 (N.D. Ill. May 4, 2009) ……………… 13
Young v. McCarthy-Bush Corp.,
2014 U.S. Dist. LEXIS 38084 (N.D. Ga. Mar. 24, 2014) ……………. 11
Statutes
TEX. LAB. CODE ANN. § 451.001 …………………………………………... 21
TEX. LAB. CODE § 21.002(6) ……………………………………………….. 11
TEX. LAB. CODE § 21.002(11-a) …………………………………………..… 11
TEX. R. CIV. P. 166a(c) ……………………………………………………... 9
TEX. R. CIV. P. 199.2(b)(1) …………………………………………………. 2, 7
vii
STATEMENT OF THE CASE
On February 3, 2014, Datar brought this suit against NOV alleging disability
discrimination (failure to accommodate) under the Texas Commission on Human
Rights Act (“TCHRA”), retaliation for requesting a disability accommodation
under TCHRA, retaliation for making a complaint of sexual harassment under
TCHRA, and workers’ compensation retaliation under the Texas Workers’
Compensation Act. CR6-12. Datar voluntarily dismissed the disability retaliation
claim on February 11, 2015. CR30-32. Datar moved for a partial summary
judgment seeking a ruling that he has a disability and that NOV was aware of his
disability. CR33-38. On March 9, 2015, NOV moved for traditional summary
judgment on the three remaining claims as well as no-evidence summary judgment
for the workers’ compensation retaliation claim. CR146-172. Datar responded on
March 30, 2015. CR364-380. The district court granted NOV’s summary
judgment motions on April 29, 2015. CR566. This is an appeal from that
decision.
viii
STATEMENT REGARDING ORAL ARGUMENT
Datar respectfully requests that the Court grant oral argument so that the
parties may accordingly apprise the Court of the legal and factual issues particular
to this case, and answer any questions the Court may have.
ISSUES PRESENTED
1) Did the trial court err by granting summary judgment for NOV on
Datar’s claim for disability discrimination – failure to accommodate,
under the Texas Commission on Human Rights Act?
2) Did the trial court err by granting summary judgment for NOV on
Datar’s claim for retaliation under the Texas Commission on Human
Rights Act?
3) Did the trial court err by granting summary judgment for NOV on
Datar’s claim for workers’ compensation retaliation under the Texas
Workers’ Compensation Act?
ix
SUMMARY OF ARGUMENT
This is a failure to accommodate and wrongful termination case under
Chapter 21 of the Texas Labor Code and the Texas Workers’ Compensation Act.
Datar worked for NOV for five years, most of that time as a welder. Datar did not
have any poor performance evaluations, warnings, or write-ups. In fact he was
praised and given a raise in February 2013. Only a few months later, in May 2013,
Datar was injured at work, accordingly obtained workers’ compensation benefits,
and sought disability-related accommodations. Also, that same month, he made a
complaint of sexual harassment, which was acknowledged and investigated by
NOV. NOV refused any accommodations and fired him on June 3, 2013, one
business day after it completed its investigation into his harassment complaint and
literally minutes after he returned from getting an MRI related to his workplace
injury. During the termination meeting Datar indicated his ongoing willingness to
work, and his immediate supervisor later admitted that he could have continued
working rather than be terminated. Furthermore, NOV did not follow its company-
wide progressive discipline policy, as it has with other similarly situated
employees. As a result, the district court erred in granting summary judgment, as
there are fact issues that a jury should resolve.
1
STATEMENT OF FACTS
I. NOV’s Progressive Discipline Policy
NOV has an unwritten progressive discipline policy/practice that provides
for a verbal, written, and final warning prior to termination. CR451, 535. As
acknowledged by NOV’s corporate representative who provided Rule 199.2(b)(1)
testimony relating to NOV’s progressive discipline practices and policies (CR447),
the progressive discipline practice is applied uniformly throughout NOV.
CR452. See TEX. R. CIV. P. 199.2(b)(1). It applies to employees who are
insubordinate. CR453.1 NOV has in fact applied this progressive discipline
practice to other employees for various reasons, including “insubordination.”
CR481-488. As explained further below, this policy was not applied to Datar who
was ultimately accused of insubordination.
II. Datar’s Employment
Datar was employed as a welder for NOV for several years. Datar’s job
duties consisted of actual welding and preparing to weld, including rigging, cutting
and grinding metal, and using a forklift to move parts. CR400, ¶2. Datar reported
to Jesus Rangel and received direction from him. CR394, 405, 407-408, 422-423.
On February 8, 2013, Datar received a 13% pay raise and specific written praise
that he
1
In extreme situations, the progressive discipline may not be applied, such as with respect to physical threats and
stealing. CR453. However, Datar never engaged in such extreme actions. CR453-454.
2
has proven to be a valuable asset to NOV over the past 4.66
years with NOV through his dedication to the company and his
willingness to increase his welding qualifications. This
employee has continually demonstrated to be well aligned with
NOV’s values in the areas of quality, production, safety, and
integrity. Additionally, in reviewing quality of work for Al
Datar over the past 12 months there were no Non Conformance
Reports found.
CR461-462. Datar had never received any verbal or written warnings, and he had
never been disciplined prior to his termination. CR493-496.
Relevant employees were as follows: a) Jose Fuentes was a welder and then
“lead man” assigned to the day shift, b) Jesus Rangel was Datar’s supervisor and
weld shop supervisor, c) Jerred Sullivan was the facility manager and HSE
manager (CR417-418; 428), d) Mistie Moore was the human resources supervisor
(CR432); d) Mike Henley was the Senior Repair Manager/Offshore of the Bammel
facility (CR442); and Lon Allchin was the Senior Human Resources Manager
(CR450).
III. Datar’s Complaint of Sexual Harassment
NOV’s sexual harassment policy that was provided to Datar specifically
describes sexual harassment as including “[u]nnecessary touching of an
individual.” CR541.
In May 2013, Datar made a complaint to human resources against Fuentes
for, in part, trying to pull down his pants. Datar considered that to be a form of
sexual harassment. CR 389-390. Prior to making the complaint to human
3
resources, Datar mentioned it to Rangel, who directly stated to Datar that he didn’t
want anybody to “lose their job” over Datar’s complaint. CR395-396.
Moore was the human resources representative who handled Datar’s
complaint of harassment. Throughout her employment with NOV, Moore has only
conducted one harassment-related investigation (specifically the one related to
Datar). CR433, 435. Moore has never been aware of any other complaint of
harassment within NOV. CR434. However, on July 16, 2013, Moore testified
under oath to the TWC that she had “conducted several investigations” since
investigating Datar’s complaint. CR522. That turned out to be a false statement.
Moore concedes that Datar’s complaint was that “he felt like he was being
sexually harassed….” CR436. Moore indicated on a written “Internal Investigation
Worksheet” that Datar’s complaint involved “sexual harassment.” CR438, 464.
Moore agreed that Datar’s complaint was made in good faith. CR439.
During her investigation, Moore discussed Datar’s complaint with Henley.
CR437. Furthermore, also during the investigation, Mike Shaffer (another
manager) specifically discussed the investigation with Moore, expressing concerns
as to whether there was potential “for a case” and hoping there was no “validity to
the concerns” expressed by Datar. CR479.
On Friday May 31, 2013 Datar had a meeting with Moore and Henley in
which Moore told Datar he would have to work under Fuentes. CR388. Datar
4
stated that he did not want to work under Fuentes partly because he felt
uncomfortable working under somebody that harassed him. CR389.
Furthermore, because Datar reported to and received direction directly from
Rangel, it was strange to require Datar to report to Fuentes. Datar performed his
job as a welder before and after Fuentes became a lead man. CR397-398. There
was no need for Datar to take direction from a lead man. CR398. The weld shop
supervisor, Rangel, oversaw the entire weld shop without a lead man for at least
two consecutive years and would still oversee it even when he wasn’t present in
the weld shop. CR404, 406. There is no lead man job description. CR501.
Notably, Rangel admitted that Datar could have actually worked in his regular day
shift welder job without reporting to Fuentes and “received instructions directly
from” Rangel. CR412-414.
IV. Datar’s Injury, Disabilities, and Physical Limitations
Datar has two medical conditions that substantially limit major life activities.
He has a lower back pain that makes it difficult for him to sit down, pick things up,
and walk. CR383-384. Datar also has hypertension (or high blood pressure), for
which he takes medication. CR385-386. This condition affects his ability to do
his job by limiting the number of hours he can work. CR386. It also causes him to
get dizzy, tired, light-headed, and feel weak. CR400, ¶3.
5
Throughout his employment with NOV, Datar would repeatedly ask Rangel
for time off due to his hypertension so that he could rest. CR387. Rangel admitted
that he was aware that Datar had high blood pressure. CR408. Rangel was also
aware that Datar injured his back in May 2013 and asked for accommodations.
CR409-411. Rangel completed an incident report referencing Datar’s back injury.
CR466-469. Sullivan was also aware of Datar’s back injury. CR421.
NOV provided no training to Sullivan relating to the ADA. CR419.
However, part of Sullivan’s job duties is to comply with all NOV procedures and
policies. CR420, 428. Sullivan incorrectly believes that taking time off from work
cannot be an accommodation for a workplace injury. CR425. He also admitted
that “the Bammel facility does not offer accommodating modified duty for non-
work related injuries,” essentially acknowledging that NOV does not comply with
the ADA. CR424, 426. Furthermore, former NOV employee, Fabian Martinez
Salinas, acknowledges that there were often situations where he witnessed Sullivan
immediately denying employees’ requests for accommodations without NOV
engaging in an interactive process. CR459, ¶5.
On Monday, May 20, 2013, Datar asked for time off the following Sunday
and Monday (Memorial Day weekend) as an accommodation to rest. CR400, ¶6.
Rangel refused to grant him the time off. Id. Sullivan also admits that Rangel
6
specifically stated to Datar “I don’t have to accommodate you.” CR68-69, 426.
NOV did not offer any alternatives to Datar’s request for time off. CR400, ¶6.
Therefore, Datar was scheduled to work during the Sunday and Monday of
Memorial Day weekend in May 2013 (May 26th and 27th). Id. However, he
actually called-in sick the morning of Sunday May 26, 2013 because he went to the
emergency room. CR506-509, 543, ¶4. Therefore, had Datar not gone to the
emergency room, he would have been forced to work.
NOV’s corporate representative admitted that he has no facts to support
Datar not having a disability. CR455. He also had no facts to support NOV’s
position that Datar did not seek a reasonable accommodation. CR456-457. This is
notable because NOV asserted these issues as affirmative defenses (CR360, ¶¶ 3,
5) and the corporate representative was to testify regarding all facts supporting
NOV’s affirmative defenses under Rule 199.2(b)(1) of the Texas Rules of Civil
Procedure. CR447.
V. NOV Fires Datar
On Monday morning June 3, 2013, Datar first went to get an MRI done
related to his back injury. CR543, ¶2. He then returned to NOV and continued his
meeting with Moore and Henley; however, this time, Rangel and Allchin were also
attending the meeting for unknown reasons. CR391-392. Moore again requested
that Datar agree to take Fuentes as his lead man, which Datar refused. CR393.
7
Moore then informed Datar he was being terminated for refusing to do his job;
however, Datar specifically stated to Moore that he has no problem doing his
job. Id. Nevertheless, he was still fired.
Furthermore, Rangel admits that had Datar not been terminated, Datar
could have actually worked in his regular day shift welder job without
reporting to Fuentes and “received instructions directly from” Rangel.
CR412-414. Datar acknowledges he could work in his position as a day shift
welder reporting solely to Rangel, rather than having to take any direction from
Fuentes. CR543, ¶3. Furthermore, Datar could have also been placed on the night
shift and completely avoided Fuentes. CR413. Despite these options and Datar’s
willingness to perform his job duties, NOV still fired him.
VI. Mike Henley’s Knowledge Regarding Datar’s Injury and Progressive
Discipline Policy
Henley was aware that Datar had a doctor’s appointment the morning of
June 3, 2013, before the meeting in which he was terminated. CR443. Henley was
specifically informed, in writing on two occasions (on May 13, 2013 and again on
May 20, 2013), that Datar had been injured. CR470-474. Datar did receive
workers’ compensation benefits. CR476-477.
Henley acknowledges that NOV has a progressive discipline practice.
CR444. He admits that there are situations where an employee may be
8
insubordinate and not be terminated. CR445. Henley has given written warnings
to other employees, but not Datar. CR497.
VII. NOV’s progressive discipline practice was not followed
To emphasize, Datar was never given a write-up or warning, yet was
immediately terminated for “insubordination” one business day following the
conclusion of the investigation into his harassment complaint and right after he
returned from a doctor visit. There is no dispute that NOV did not follow its own
progressive discipline practice, yet treated other employees differently, as
described above. CR451, 447, 452, 453, 481-488, 535.
ARGUMENTS
I. Summary Judgment Standard
Summary judgment is proper when there is “no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.”
TEX. R. CIV. P. 166a(c). NOV must show the absence of any genuine issue of
material fact, with all doubts resolved in favor of Datar. See Limestone v. Prods.
Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). Evidence presented
in a summary judgment proceeding must be of the same quality and admissibility
as would be admissible in a conventional trial. Fort Brown Villas III Condo.
Assoc., Inc. v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009). Therefore,
conclusory statements, speculation, and subjective beliefs are not proper summary
9
judgment evidence. Tex. Div.-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex.
1994); Hovorka v. Cmty. Health Sys. Inc., 262 S.W.3d 503, 511 (Tex. App. – El
Paso 2008, no pet.); Nelson v. Regions Mortg., Inc., 170 S.W.3d 858, 865 (Tex.
App. – Dallas 2005, no pet.).
II. Disability Discrimination – Failure to Accommodate
To prove a failure to accommodate claim, a plaintiff must show the
following: 1) he has a “disability,” 2) the employer had notice of the disability, 3)
the plaintiff could perform the “essential functions” of the position with
“reasonable accommodations,” and 4) the employer refused to make such
accommodations. Tex. Dep’t of Family & Protective Servs. v. Howard, 429
S.W.3d 782, 789 (Tex. App. – Dallas 2014, pet. denied) (citing Davis v. City of
Grapevine, 188 S.W.3d 748, 758 (Tex. App. – Fort Worth 2006, pet. denied)).
NOV moved for summary judgment with respect to the first, second, and fourth
elements. It did not argue that Datar could not perform the essential functions of
his job as a welder.
A. Datar has a disability
TCHRA defines “disability” as a mental or physical impairment that
substantially limits at least one major life activity of that individual, a record of
such an impairment, or being regarded as having such an impairment. TEX. LAB.
10
CODE § 21.002(6). Major life activities include performing manual tasks, sleeping,
walking, standing, lifting, bending, and working. TEX. LAB. CODE § 21.002(11-a).
TCHRA “was amended effective September 1, 2009, to reflect amendments
to the [Americans with Disabilities Act] pursuant to the ADA Amendments Act of
2008 (ADAAA).” Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984, 993 (W.D. Tex.
2011). “Congress amended the ADA to broaden its coverage by expanding the
definition of what qualified as a ‘disability.’” Id. It “expressed its intent that ‘the
primary object of attention in cases brought under the ADA should be whether
entities covered under the ADA have complied with their obligations,’ and ‘the
question of whether an individual’s impairment is a disability under the ADA
should not demand extensive analysis.’” Id. (citing 42 U.S.C. § 12102(4)(A)).
Therefore, the definition of a disability “shall be construed in favor of broad
coverage of individuals under this Act, to the maximum extent permitted by the
terms of this Act.’” Id.
Employees who suffer from temporary impairments and injuries are
sufficient may be considered “disabled” as defined by the Act. Summers v.
Altarum Inst., Corp., 740 F.3d 325, 332 – 33 (4th Cir. 2014); Modjeska v. UPS,
2014 U.S. Dist. LEXIS 148363, *34 – 35 (E.D. Wisc. Oct. 16, 2014) (CR98-99);
Young v. McCarthy-Bush Corp., 2014 U.S. Dist. LEXIS 38084, *15 (N.D. Ga.
Mar. 24, 2014) (stating that the ADAAA “has dispensed with the requirement that
11
courts consider the duration of an impairment when weighing whether it
substantially limits a major life activity”) (CR81). Courts may rely on a “plaintiff's
own statements that his or her condition is substantially limiting.” Gonzalez v.
Tex. HHS Comm’n, No. 5:13-cv-183-DAE, 2014 U.S. Dist. LEXIS 161706, *19
(W.D. Tex. Nov. 19, 2014) (CR107).
As indicated above, there is no dispute that Datar suffered from high blood
pressure (or hypertension) and a back injury during the relevant time period. There
is also no dispute that these conditions substantially limited major life activities,
such as sitting down, picking things up, walking, and limiting the number of hours
he can work. Furthermore, NOV’s corporate representative admitted that he had
no facts to support Datar not having a disability. CR455. Therefore, it should be
held, as a matter of law, that Datar was considered disabled as defined under
TCHRA.
B. NOV had notice of Datar’s disability
As explained above, Rangel and Sullivan, both managers within NOV, were
aware of Datar’s back problems, and Rangel was also aware of Datar’s high blood
pressure. CR56, 57, 59-60, 65. Sullivan even admitted that Rangel specifically
stated to Datar that he would not accommodate Datar. CR68-69.
NOV contends that Datar’s requests for time off to rest does not put the
company on notice that he needs an accommodation. CR160. However, it is
12
established that a request for time off may be a reasonable accommodation.
Turner v. Health Care Serv. Corp., 2009 U.S. Dist. LEXIS 37331, *35 (N.D. Ill.
May 4, 2009) (CR553). Notably, Datar’s condition prevented him from working
long hours, and he needed to rest.
Second, NOV contends Datar’s allegations about NOV refusing to
accommodate him are insufficient because he could not provide specific details
regarding the timing and number of his requests. CR161. However, NOV cannot
rely on Datar’s inability to pinpoint specific dates/instances for purposes of a
summary judgment motion. See Etienne v. Spanish Lake Truck & Casino Plaza,
L.L.C., 778 F.3d 473, 476-77 (5th Cir. 2015) (relying on an affidavit referencing
inappropriate comments made “on several occasion”). Therefore, Datar’s
allegations were not conclusory or otherwise insufficient. Finally, NOV’s Rule
199.2(b)(1) corporate representative admitted that he had no facts to support its
position that Datar did not seek a reasonable accommodation. CR456-457.
Therefore, it should be held, as a matter of law, that NOV had notice of
Datar’s disability.
C. There is a fact question as to whether NOV refused to make
accommodations for Datar or failed to engage in an interactive
process
NOV argues that Datar was not refused a reasonable accommodation.
CR161-162. The basis of Datar’s failure to accommodate claim stems from his
13
May 20, 2013 request to take off work May 26 and 27, 2013. CR543, ¶4. Datar
has testified that he was scheduled to work those two days and Rangel refused to
grant him that time off or otherwise offer alternatives. “[I]t is the employee’s
initial request for an accommodation which triggers the employer’s obligation to
participate in the interactive process of determining one.” Taylor v. Principal Fin.
Group, 93 F.3d 155, 165 (5th Cir. 1996). Therefore, on May 20, 2013, NOV
violated the TCHRA by refusing to accommodate Datar’s request or otherwise
engage in an interactive process to determine whether alternative accommodations
could be provided.
It is true that Datar ultimately did not work on May 26 and 27; however, the
reason is because he was rushed to the emergency room – not because NOV
willingly granted him an accommodation. CR506-509. Datar actually called in
sick on Sunday, May 26th because of his medical condition. CR543, ¶4. NOV
contends that because Datar ultimately did not work on the two days that he
requested to be off, it complied with its disability obligations. CR161-162. That
cannot be a method of complying with the ADA or TCHRA. Disability
accommodation laws are not designed to unjustly reward an employer if the
employee inadvertently stumbles upon the requested accommodation because he
was so ill he had to go to the emergency room. As a federal court recently
explained:
14
In a disparate treatment claim, “the ultimate issue is the
employer’s reasoning at the moment the questioned
employment decision is made, [thus] a justification that could
not have motivated the employer’s decision is not evidence that
tends to illuminate the ultimate issue and is therefore simply
irrelevant.” Patrick v. Ridge, 394 F.3d 311, 319 (5th Cir. 2004)
(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 109 S.
Ct. 1775, 104 L. Ed. 2d 268 (1989) (courts should conduct a
snapshot inquiry into the employer’s motive at the exact instant
the decision was made)); see also Perez v. Tx. Dep’t of
Criminal Justice, Inst. Div., 395 F.3d 206, 210 (5th Cir. 2004)
(“The evidence relevant to determining whether [defendant
discriminated against plaintiff] is evidence that goes to what
[defendant] knew at the time [defendant]… recommended
[plaintiff’s] termination.”).
Butler v. La. Dep’t of Pub. Safety & Corr., C.A. No. 3:12-cv-00420-BAJ-RLB,
2013 U.S. Dist. LEXIS 76467, *15 (M.D. La. May 29, 2013). Accordingly, the
question here is: Did NOV comply with its obligations to accommodate Datar
and/or engage in an interactive process on May 20, 2013? The answer to that
question at the summary judgment stage is “no,” not only based on Datar’s
statements, but also on Sullivan’s misconception that taking time off from work
cannot be an accommodation for a workplace injury (CR425), Sullivan’s
admission that “the Bammel facility does not offer accommodating modified duty
for non-work related injuries” (CR424, 426), and/or Salinas’ supporting statements
that there were often situations where he witnessed Sullivan immediately denying
employees’ requests for accommodations without NOV engaging in an interactive
process. CR459, ¶5. Therefore, there is a fact question as to whether NOV refused
15
to make accommodations for Datar, and the district court erred when granting
summary judgment in favor of NOV.
III. TCHRA Retaliation
Datar claims he was fired in retaliation for making a complaint of sexual
harassment. NOV makes two primary arguments regarding Datar’s TCHRA
retaliation claim. Specifically, it contends that Datar did not engage in a protected
activity (CR163-165) and that it had a legitimate, non-retaliatory reason to
terminate him for which Datar cannot show pretext.2 CR166-168.
A. Datar engaged in a protected activity
Opposition to a discriminatory practice is a protected activity irrespective of
the merits of the underlying discrimination claim. City of Waco v. Lopez, 259
S.W.3d 147, 151 (Tex. 2008).
NOV argues that Datar did not engage in a protected activity because his
internal complaint of sexual harassment was not made based on a good-faith
reasonable belief that the conduct was unlawful. CR163-165. NOV relies on one
case, Cox & Smith Inc. 974 S.W.2d 217 (Tex. App. – San Antonio 1998, pet.
denied), to assert that Datar’s complaint that Fuentes’ attempt to pull down his
pants could not amount to a good faith, reasonable belief of sexual harassment.
2
NOV included an argument that it did not take an adverse action directly based on Datar’s
complaint. CR166-167. This is a circumstantial evidence case, not a direct evidence case, thus
requiring the McDonnell Douglas standard to apply. Therefore, it does not appear this argument
needs to be addressed as there is no dispute that Datar was terminated.
16
CR163-165. In that case, there were five alleged incidents that could not be
considered a reasonable belief of sexual harassment.3 Furthermore, the court’s
analysis in that case actually indicated that it is possible that two of the comments
could have been considered sexual harassment, but did not amount to such a level
“because the remarks were made in social settings during non-work hours.” Cox &
Smith Inc., 974 S.W.2d at 227.
Datar’s situation is different. His complaint of sexual harassment involved
Fuentes attempting to pull his pants down in the work place and during work
hours. Datar notified his supervisor, Rangel, about the incident and then escalated
it to human resources. Given his actions and testimony, Datar reasonably believed
that this amounted to sexual harassment.
Furthermore, at all times during NOV’s investigation into Datar’s complaint
of sexual harassment, NOV admitted that it believed Datar’s complaint was
considered sexual harassment and that it believed (and still believes) Datar made
his complaint in good faith. CR436, 438, 439, 464.
Therefore, Datar engaged in a protected activity. In the alternative, there is a
fact question on this issue.
3
The incidents alleged by the plaintiff in Cox & Smith Inc. were: 1) use of the word “bitchy” in a
newsletter; 2) an employee telling her to work for the Clinton campaign; 3) an employee stating
that she is similar to Hillary Clinton; 4) a joke told by a co-worker at a wedding (away from the
workplace) in front of other people referencing Hillary Clinton; and 5) an isolated comment
made by an employee at a social setting (also away from the workplace) referencing the
plaintiff’s breasts. Cox & Smith Inc., 974 S.W.2d at 226-27.
17
B. NOV has not asserted a legitimate non-discriminatory reason for
terminating Datar
NOV contends it terminated Datar because of insubordination for refusing to
do his job. CR167. First of all, there is no dispute that Datar was willing to work
as a welder and that NOV believed there were no problems with his performance at
least through May 2013. CR393, 461-462, 493-496. Also, Datar could have
actually continued working in his exact same position and reported directly to
Rangel. CR412-414. This is further supported by the fact that Rangel normally
operated without a lead man. CR404, 406. Furthermore, NOV has not produced
any welder or lead man job description (nor any other written document)
specifically indicating that welders must report to a lead man. CR501. Most
importantly, Datar stated to Moore and Henley that he had no problem doing his
job, which directly contradicts NOV’s position that Datar was refusing to perform
his job. CR393. Therefore, NOV has not asserted a legitimate, non-discriminatory
reason for Datar’s termination.
C. NOV’s reason for terminating Datar is pretext for unlawful
retaliation
Even if it is determined that NOV has articulated a legitimate non-
discriminatory reason for terminating Datar, such an explanation is actually pretext
for unlawful discrimination. At this stage, the burden is on Datar to show that the
18
proffered reason was not the true reason for the adverse employment action. See
St. Mary’s Honor Center v. Hicks, 209 U.S. 502, 507-08 (1993).
Therefore, assuming Datar was “insubordinate” by refusing to report to a
lead man, he should have been provided with a verbal or written warning, as
required by NOV’s progressive discipline practice that has been applied to
numerous other employees for insubordination and that is supposedly applied
uniformly throughout NOV. CR447, 451, 452, 453, 481-488, 535. Other
employees who were insubordinate were not immediately terminated, and Henley
had applied the progressive discipline policy to such employees. CR444, 445, 497.
Instead, NOV chose to skip this step and immediately terminate him.
Therefore, NOV treated Dater differently than other similarly situated employees.
This is strong evidence of pretext. See Feist v. Louisiana, Dep’t of Justice, Office
of the Atty. Gen., 730 F.3d 450, 454-55 (5th Cir. 2013) (noting that an “employer’s
departure from typical policies and procedures” may establish a causal connection
between the protected activity and adverse action); Machinchick v. PB Power,
Inc., 398 F.3d 345, 354 (5th Cir. 2005) (employer’s failure to follow its
progressive discipline policy in dealing with plaintiff may be evidence of pretext);
Bell v. Conopco, Inc., 186 F.3d 1099, 1102 (8th Cir. 1999) (genuine issue of
material fact existed in racial discrimination and retaliation actions based on
evidence that plaintiff's supervisor did not comply with progressive discipline
19
policy); Miles-Hickman v. David Powers Homes, Inc., 613 F. Supp. 2d 872, 884
(S.D. Tex. 2009) (stating that the employer’s “failure to abide by its usual
progressive discipline policy constitutes circumstantial evidence in support of [the
plaintiff’s] retaliation claim”).
In addition, the extremely short time frame between Datar’s complaint of
sexual harassment and his termination (less than a month), including the fact that
he was fired literally one business day after the conclusion of NOV’s harassment
investigation, supports a causal connection finding on its own. Evans v. City of
Houston, 246 F.3d 344, 354 (5th Cir. 2001) (finding that a lapse of five days is
sufficient to establish a causal connection); Rhines v. Salinas Constr. Techs., Ltd.,
2012 U.S. Dist. LEXIS 110457, *20 (S.D. Tex. Aug. 7, 2012) (“[W]hen an
adverse employment action is taken in very close temporal proximity to a protected
activity, this may be sufficient evidence of causation, at least for a prima facie case
of retaliation.”) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001));
Garrett v. Constar Inc., 1999 U.S. Dist. LEXIS 9361, *16-17 (N.D. Tex. May 25,
1999) (finding a time lapse of four months to be sufficient to satisfy the causal
connection for summary judgment purposes).
Therefore, even disregarding Datar’s affirmative statement during his
termination meeting that he was willing to do his job, the temporal proximity
between his protected activity and his termination combined with NOV’s failure to
20
follow its own disciplinary practice shows that there is a fact question as to
whether NOV unlawfully retaliated against Datar. As a result, the district court
erred when it granted summary judgment on Datar’s TCHRA retaliation claim.
IV. Workers’ Compensation Retaliation
An employer may not discharge an employee because that employee has
filed a workers’ compensation claim in good faith. See TEX. LAB. CODE ANN. §
451.001; Terry v. S. Floral Co., 927 S.W.2d 254, 256-57 (Tex. App. – Houston
[1st Dist.] 1996, no writ). To state a prima facie case of workers’ compensation
retaliation, Datar must show: 1) that he instituted a workers’ compensation claim;
2) that an adverse employment action occurred; and 3) that a causal connection
exists between the filing of the workers’ compensation claim and the adverse
employment action. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369-
70 (Tex. App. – Dallas 2004, no pet.). With respect to the first element, Datar only
needs to show that he was injured on the job and reported the injury to his
employer, not that he actually filed a workers’ compensation claim. Chhim v.
University of Houston, 76 S.W.3d 210, 217-18 (Tex. App. – Texarkana 2002, pet.
denied); Duhon v. Bone & Joint Physical Therapy Clinics, 947 S.W.2d 316, 317-
18 (Tex. App.-Beaumont 1997, no writ) (holding employee invoked protection of
statute when she sustained an on-the-job injury and reported it to her employer the
next day).
21
There is no dispute that Datar meets the first two elements. NOV only
focuses on the third element regarding causal connection. CR169-171.4 Datar may
prove a causal link between his termination and his workers’ compensation claim
by circumstantial evidence, which includes:
(1) knowledge of the compensation claim by those making the
decision on termination; (2) expression of a negative attitude
towards the employee’s injured condition; (3) failure to adhere
to established company policies; (4) discriminatory treatment in
comparison to similarly situated employees; and (5) evidence
that the stated reason for the discharge was false.
Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Parker v.
Valerus Compression Servs., LP, 365 S.W.3d 61, 67 (Tex. App. – Houston [1st
Dist.] 2011, pet. denied). Furthermore, “[l]ittle or no lapse in time between the
plaintiff’s compensation claim and the employer’s adverse employment action is
also circumstantial evidence of a retaliatory motive.” Id.; Johnson v. City of
Houston, 203 S.W.3d 7, 11 (Tex. App. – Houston [14th Dist.] 2006, pet. denied).
Datar reported his injury on or about May 11, 2013 and he was terminated
only three weeks later, June 3, 2013. A workers’ compensation report was
completed on May 16, 2013. CR476-477. Henley, the manager who made the
decision to terminate Datar, was informed in writing on May 13, 2013 and again
on May 20, 2013 that Datar had been injured. CR170-174. Henley also
4
NOV also moved for a no-evidence summary judgment on this claim. CR155-156. Datar’s facts asserted above
and arguments in this section accordingly address that argument. Notably, Henley was aware of Datar’s injury and
need for medical care.
22
acknowledges that he was aware, on June 3, 2013 (the date NOV fired Datar), that
Datar was coming into work immediately following a doctor’s appointment.
CR443. These admissions alone contradict NOV’s argument that Henley was not
aware of Datar’s injury and/or a workers’ compensation claim.
Given Henley’s knowledge, the nominal lapse in time between Datar’s
injury and his termination, and the fact that NOV has a progressive discipline
policy that it did not follow when terminating Datar (discussed in more detail
above), the district court erred when it granted summary judgment on Datar’s
workers’ compensation retaliation claim.
PRAYER
Datar respectfully requests that this Court reverse the judgment entered by
the district court, and accordingly hold as follows:
1) Datar has a disability, as defined under the TCHRA;
2) NOV had notice of Datar’s disability; and
3) The district court erred in granting summary judgment in
favor of NOV because there are fact questions on Datar’s
three claims.
23
CERTIFICATE OF WORD COMPLIANCE
Under Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the
undersigned counsel – in reliance upon the word count of the computer program
used to prepare this document – certifies that this brief contains 5,520 words,
excluding most of the words that need not be counted under Rule 9.4(i)(1).
CERTIFICATE OF SERVICE
I hereby certify that a true, full, and correct copy of the foregoing was served
on the following counsel of record via email on August 31, 2015.
Christopher E. Moore
Christine M. White
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
701 Poydras Street
Suite 3500
New Orleans, LA 70139
/s/ Nitin Sud_______
Nitin Sud
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APPENDIX INDEX
Court’s Order Granting Summary Judgment …………………………….. 1
25