Jeff Kitchen v. BASF

Case: 18-41119 Document: 00515326143 Page: 1 Date Filed: 02/28/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-41119 FILED
February 28, 2020
Lyle W. Cayce
JEFF KITCHEN, Clerk
Plaintiff - Appellant
v.
BASF,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
A discharged employee sued his former employer alleging discrimination
under the Americans with Disabilities Act and the Age Discrimination in
Employment Act. The district court granted the former employer’s motion for
summary judgment. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Jeff Kitchen began his employment with BASF in 2006. BASF is a
chemical company based in Germany whose corporate name is the acronym
formed from its earlier German-language name. It describes itself as a
producer and marketer of chemicals and related products. While a BASF
Case: 18-41119 Document: 00515326143 Page: 2 Date Filed: 02/28/2020
No. 18-41119
employee, Kitchen was twice convicted of driving while intoxicated (“DWI”).
He also consumed alcohol during working hours, even though he knew it was
a violation of company policy. On multiple occasions, BASF permitted him to
take substantial leave to undergo inpatient and outpatient alcohol-abuse
treatment.
In May 2014, while Kitchen was on leave, he was arrested for and
convicted of DWI with a Blood Alcohol Content (“BAC”) of 0.15 and convicted.
Even though BASF was aware of Kitchen’s alcohol abuse, BASF allowed him
to return to work in October 2014 under special conditions. During his
deposition testimony, Kitchen stated the conditions included not getting
another DWI and staying sober at work. On October 6, Kitchen signed a
Return to Work Agreement which required him, among other things, to submit
to future breath alcohol testing. The agreement provided that failure to meet
the stated requirements could result in termination. A separate Testing
Agreement signed at the same time specifically provided that testing positive
for alcohol could result in termination.
On October 24, 2014, Kitchen signed a Final Written Warning that any
further violations of company policy, testing positive for alcohol at work, or a
felony conviction of DWI could result in termination. At that time, BASF’s
operative policy regarding alcohol and substance abuse stated that post-
rehabilitation testing would be conducted by the Site Human Resources
Representative, and the Representative was to keep the BASF Employee
Assistance Program case manager informed of the test results. Significantly,
the policy did not define a minimum level of BAC for test results to be
considered “positive.” This policy superseded a policy from December 2012.
On September 28, 2015, Kitchen arrived at work at 7:30 a.m. At
10:40 a.m., Kitchen underwent a breath alcohol test that showed a BAC of
0.014. At 10:55 a.m., he underwent a second breath alcohol test that showed
2
Case: 18-41119 Document: 00515326143 Page: 3 Date Filed: 02/28/2020
No. 18-41119
a BAC of 0.010. The nurse who was acting as the breath alcohol technician
and who administered the test was certified to administer breath alcohol tests
using an Intoxylyzer 5000. The record does not clearly indicate what kind of
breath alcohol testing machine was used for Kitchen’s breath test. Based on
these test results, Kitchen’s supervisor, Mark Damron, believed Kitchen had
arrived to work under the influence of alcohol. Damron believed these test
results showed Kitchen was in violation of BASF’s alcohol policy, the Return
to Work Agreement, and the Final Written Warning. BASF discharged
Kitchen effective October 2, 2015.
Kitchen filed his complaint against BASF on February 3, 2017, asserting
claims under the Americans with Disabilities Act (“ADA”) and the Age
Discrimination in Employment Act (“ADEA”). The parties filed cross motions
for summary judgment. Kitchen filed his response to BASF’s motion for
summary judgment on its due date with no attached exhibits or record
evidence. BASF filed its reply in support of its motion for summary judgment
the following day. After BASF filed its reply, and after Kitchen’s deadline to
file his response had passed, Kitchen filed a “corrected” response to BASF’s
motion for summary judgment with exhibits. The district court ordered the
clerk to strike Kitchen’s “corrected” response because it was untimely filed.
Ultimately, the district court granted summary judgment in favor of
BASF, simultaneously denying Kitchen’s motion for summary judgment.
Kitchen appeals the district court’s judgment dismissing his case.
In addition to challenging the judgment against him, Kitchen also
challenges the district court’s order striking his “corrected” response to BASF’s
motion for summary judgment and certain evidentiary rulings made by the
district court.
3
Case: 18-41119 Document: 00515326143 Page: 4 Date Filed: 02/28/2020
No. 18-41119
DISCUSSION
We review a district court’s grant of summary judgment de novo. Ibarra
v. UPS, 695 F.3d 354, 355 (5th Cir. 2012). Summary judgment is appropriate
where the movant demonstrates “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). A genuine dispute of material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When cross motions
for summary judgment have been filed, “we review each party’s motion
independently, viewing the evidence and inferences in the light most favorable
to the nonmoving party.” Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 329
(5th Cir. 2014).
I. ADA claim
The ADA prohibits employers from discriminating “on the basis of
disability in regard to . . . discharge of employees.” 42 U.S.C. § 12112(a). The
ADA expressly provides that an employer can hold alcoholic employees to the
same standards as other employees, even if the behavior in question is related
to alcoholism. See § 12114(c)(4). “In a discriminatory-termination action
under the ADA, the employee may either present direct evidence that she was
discriminated against because of her disability or alternatively proceed under
the burden-shifting analysis first articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th
Cir. 2014).
Kitchen argues he has produced direct evidence of discrimination and
therefore does not need to rely on the burden-shifting framework of McDonnell
Douglas. To support this argument, he states BASF admits it discharged him
because he failed a breath alcohol test, and this constitutes direct evidence he
4
Case: 18-41119 Document: 00515326143 Page: 5 Date Filed: 02/28/2020
No. 18-41119
was discharged because of a disability — alcoholism — in violation of the ADA.
Alternatively, he argues BASF did not adhere to its policy in discharging him
and he was not technically “impaired” or “intoxicated.”
We have held in an ADA-termination case that evidence is direct when,
if believed, it proves the fact of “discriminatory animus without inference or
presumption.” Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016)
(quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)).
Kitchen’s evidence at most would show that BASF discharged him based on
the results of his alcohol test, which undeniably were above zero, or that BASF
misapplied its policy or was mistaken in Kitchen’s level of intoxication while
he was at work. Firing Kitchen for arriving to work under the influence of
alcohol is not equivalent to firing Kitchen because of a prejudice against
alcoholics. An inferential leap is required to arrive at the conclusion BASF
discharged Kitchen out of discriminatory animus against him as an alcoholic.
Thus, Kitchen has not produced direct evidence to support his case.
Kitchen also makes a burden-shifting argument. The first step requires
Kitchen to establish “(1) he had a disability, (2) he was qualified for the job,
and (3) there was a causal connection between an adverse employment action
and his disability.” Rodriguez, 820 F.3d at 765. If Kitchen is successful in
establishing all three requirements, a presumption of discrimination arises,
and the burden shifts to BASF to articulate a legitimate, non-discriminatory
reason for the termination. See Caldwell v. KHOU-TV, 850 F.3d 237, 241–42
(5th Cir. 2017). If BASF does so, the burden then shifts back to Kitchen to
show BASF’s reason was pretextual; Kitchen could do that through evidence
of disparate treatment or by showing BASF’s explanation was false or
unbelievable. Id. at 242.
We need not discuss each step in the shifting evidentiary presentation
because Kitchen offered no evidence of a causal connection between his
5
Case: 18-41119 Document: 00515326143 Page: 6 Date Filed: 02/28/2020
No. 18-41119
discharge and his alcoholism. Kitchen was discharged for failing a breath
alcohol test. He argues that means he effectively was discharged because of
his alcoholism. He presented no evidence, though, that his discharge was
based on any discriminatory animus against him as an alcoholic. The evidence
shows BASF had a post-rehabilitation alcohol testing policy and Kitchen had
signed a Final Written Warning informing him that testing positive for alcohol
while at work could result in his termination. Kitchen’s supervisor, Damron,
believed Kitchen had arrived to work under the influence of alcohol, meaning
Kitchen violated company policy and the Final Written Warning. The ADA
states that covered entities “may require that employees shall not be under the
influence of alcohol . . . at the workplace” and that they “may hold an employee
. . . who is an alcoholic to the same qualification standards for employment or
job performance and behavior that such entity holds other employees, even if
any unsatisfactory performance or behavior is related to the . . . alcoholism of
such employee.” 42 U.S.C. § 12114(c)(2), (4). Kitchen has not offered evidence
to support a causal connection between alcoholism and his discharge. He thus
fails to establish a prima facie case of discrimination under the ADA.
Further, Kitchen has failed to show BASF’s legitimate, non-
discriminatory reason for discharging him, the apparent positive results of his
alcohol test and violation of company policy, was pretextual. See Raytheon Co.
v. Hernandez, 540 U.S. 44, 53–54 (2003). The focus of the pretext inquiry is
not whether the alcohol test was accurate but whether BASF reasonably
believed its non-discriminatory reason for discharging Kitchen and then acted
on that basis. See Waggoner v. City of Garland, 987 F.2d 1160, 1165–66 (5th
Cir. 1993). In Waggoner, we stated, “the inquiry is limited to whether the
employer believed the allegation in good faith and whether the decision to
discharge the employee was based on that belief.” Id. Kitchen, who does not
dispute his BAC test results were above zero, focuses his arguments on the
6
Case: 18-41119 Document: 00515326143 Page: 7 Date Filed: 02/28/2020
No. 18-41119
accuracy of the test, the credentials of the technician who administered the
test, and whether he in fact did violate BASF company policy. The argument
fails because Kitchen provided no evidence BASF did not reasonably believe
its non-discriminatory reason for discharging him.
Kitchen also argues that BASF violated the ADA by failing to make
reasonable accommodations. Kitchen did not make this allegation in his
complaint, in his motion for summary judgment, or in his response to BASF’s
motion for summary judgment. Because Kitchen did not present this
argument to the district court, and he makes no attempt to demonstrate
extraordinary circumstances for why we should consider it, this argument is
waived. See Law Funder, L.L.C. v. Munoz, 924 F.3d 753, 759 (5th Cir. 2019).
Even if we considered Kitchen’s failure-to-accommodate argument, it
would fail. The ADA prohibits covered entities like BASF from discrimination
by failing to make “reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability.” 42
U.S.C. § 12112(b)(5)(A). Nevertheless, the ADA does not provide a right to an
employee’s preferred accommodation but only to a reasonable accommodation.
See EEOC v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009).
Kitchen argues he had requested a blood alcohol test to be conducted
after the breath tests showed a BAC of 0.014 and 0.010, which are levels that
would not show legal intoxication. He claims by refusing to provide him with
this additional test, BASF violated the ADA by failing to accommodate him.
BASF had done more than necessary to accommodate him in a reasonable
manner by allowing him several leaves for treatment, even after he had been
convicted of DWIs and violated company policy by consuming alcohol while at
7
Case: 18-41119 Document: 00515326143 Page: 8 Date Filed: 02/28/2020
No. 18-41119
work. Not conducting an additional alcohol test is not evidence that BASF
failed to reasonably accommodate him.
For these reasons, his ADA claim was properly dismissed.
II. ADEA claim
Kitchen concedes he “could not substantiate [his] claims for
discrimination on the basis of age.” His argument consists of asserting he was
unable to produce any evidence in support of his ADEA claim because BASF
objected to his discovery request for all documents related to all employees and
terminations at BASF’s Freeport location reaching back to 2010 and the
district court “did not mandate that [BASF] produce such information.”
“We review the discovery decisions of a District Court for abuse of
discretion, including a decision, as here, to forego additional discovery and rule
on a summary judgment motion.” United States ex rel. Taylor-Vick v. Smith,
513 F.3d 228, 232 (5th Cir. 2008). Kitchen produces no evidence to support his
ADEA claim, and there was no abuse of discretion in the district court’s
decision to not mandate the requested production.
III. Striking response
Kitchen challenges the district court’s order striking his late-filed
“corrected” response to BASF’s motion for summary judgment. The Federal
Rules allow district courts, for good cause, to extend time with or without
motion if the court acts before the original time or its extension expires, or on
motion made after time has expired if there was excusable neglect. FED. R.
CIV. P. 6(b)(1). Kitchen made no request to extend the time to file his response
before the deadline, and he did not file a motion for an extension arguing
excusable neglect. Even if Kitchen had filed such a motion, it was no abuse of
the district court’s discretion to strike his late-filed motion. We have held a
8
Case: 18-41119 Document: 00515326143 Page: 9 Date Filed: 02/28/2020
No. 18-41119
district court has discretion to refuse to accept a party’s dilatory response to a
motion for summary judgment, even if the court acknowledges reading the
response, and has discretion to deny extending the deadline when no excusable
neglect is shown. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161
(5th Cir. 2006).
IV. Evidentiary rulings
We review evidentiary decisions for abuse of discretion, subject to
harmless error review. United States v. McCann, 613 F.3d 486, 500 (5th Cir.
2010). Kitchen argues the district court abused its discretion in relying on
Damron’s testimony that Kitchen had arrived to work under the influence of
alcohol. Kitchen argues because Damron consulted with a doctor regarding
the alcohol test results, and because Damron’s testimony is not based on
Damron’s personal knowledge as an expert, his testimony is hearsay and
should not be considered at summary judgment. It is true BASF’s motion for
summary judgment cited to BASF’s in-house physician’s calculations, in which
the physician concluded Kitchen had likely been under the influence of alcohol
at work based on Kitchen’s positive alcohol test, and the physician
communicated this conclusion to Damron. The district court, though, did not
rely directly on the physician’s testimony or calculations when granting
summary judgment to BASF. Instead, it relied on Damron’s own testimony
that he personally believed Kitchen had violated BASF policy and Kitchen had
been under the influence of alcohol while at work, which is not an ADA-
prohibited reason for discharging an employee. Damron’s testimony
incorporating the physician’s opinion was not hearsay because it was not
offered for the truth of whether Kitchen was intoxicated, but rather for the
effect the physician’s opinion had on Damron, namely the formation of his
honest belief Kitchen had been intoxicated while at work. See Chevron Oronite
9
Case: 18-41119 Document: 00515326143 Page: 10 Date Filed: 02/28/2020
No. 18-41119
Co., L.L.C. v. Jacobs Field Servs. N. Am., Inc., --- F.3d ----, No. 19-30088, 2020
WL 773287, at *6 (5th Cir. Feb. 18, 2020). Because Damron’s testimony was
not hearsay, and because Kitchen has offered no evidence to suggest Damron’s
testimony was not trustworthy, the district court did not abuse its discretion
in relying on it.
Kitchen also argues medical records included as exhibits in BASF’s
motion for summary judgment should not have been admitted. These medical
records show on September 29, 2015, the day after Kitchen’s at-work BAC test
results of 0.014 and 0.010, Kitchen reported to a physician that Kitchen had
been having a recent alcohol binge and drinking heavily for the previous ten
days. Though it is not entirely clear, it appears Kitchen argues these
documents are inadmissible as hearsay and the hearsay exceptions found in
Federal Rules of Evidence 803(4) and 803(7) do not apply. Contrary to
Kitchen’s argument, it was not an abuse of discretion to admit these medical
records. Under Rule 803(4), statements made for medical diagnosis or
treatment that describe medical history, past or present symptoms or
sensations, their inception, or their general cause are not excluded as hearsay.
FED. R. EVID. 803(4). The medical records in question fall squarely into this
exception. Rule 803(7) involves the admissibility of the absence of a record of
a regularly conducted activity. Though it is not clear how Rule 803(7) applies,
to the extent Kitchen argues the records should have been excluded because
they indicate a lack of trustworthiness under Rule 803(6)(E), it was not an
abuse of discretion to admit what appear to be routine medical records. Even
if there had been an abuse, the error was harmless because the district court
did not rely on these records in dismissing Kitchen’s claims.
AFFIRMED.
10