Case 4:06-cv-02738 Document 1-1 Filed 08/24/2006 Page 1 of 7

UNff~:D ~A~E$ COURTS

SOUTHERN NSTRICT OF TE~iS

IN THE UNITED STATES DISTRICT COURT

FILED

_

FOR THE SOUTHERN DISTRICT OF TEXAS AUfi ~ 4 20Off

HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

§

COMMISSION,

§

Plaintiff,

§

v.

§

CIVIL ACTION NO.

LYONDELL-CITGO REFINING, L.P. Defendant.

§ § JURY TRIAL DEMANDED

COMPLAINT This is an action under Title I of the Americans with Disabilities Act of 1990 ("ADA"), and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of disability, and to provide appropriate relief to Steve Aleman, who was adversely affected by Defendant Lyondell-Citgo Refining, L.P.’s unlawful hiring practices. As alleged with greater particularity below, Lyondell-Citgo Refining, L.P. ("LCR"), unlawfully refused to hire Mr. Aleman because it regarded him as disabled and because of his record of disability.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C.§451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.§2000e-5(f)(1) and (3), and pursuant to§ 102 of the Civil Rights of Act of 1991, 42 U.S.C.§ 1981a. 2. The employment practices alleged to be unlawful were committed within the

Case 4:06-cv-02738 Document 1-1 Filed 08/24/2006 Page 2 of 7
jurisdiction of the United States District Court for the Southern District of Texas, Houston Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission" or "EEOC"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(0(1) and (3) of Title VII, 42 U.S.C.§2000e-5(f)(1) and (3). 4. Defendant LCR is a Delaware limited partnership. At all relevant times, LCR has been doing business in the State of Texas and the City of Houston, and has continuously had at least 15 employees. LCR may be served by serving its registered agent for service of process, CT Corporation System, 1021 Main Street, Suite 1150, Houston, Texas 77002. 5. At all relevant times, Defendant LCR has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C§ 12111(5), and Section 101(7) of the ADA, 42 U.S.C.§ 12111(7), which incorporates by reference Sections 701 (g) and (h) of Title VII, 42 U.S.C. §2000e(g) and (h). 6. At all relevant times, Defendant LCR has been a covered entity under Section 101(2) of the ADA, 42 U.S.C.§ 12111(2).
STATEMENT OF CLAIMS o More than thirty days prior to the institution of this lawsuit, Aleman filed a charge with the Commission alleging violations of Title I of the ADA by Defendant LAClRl . conditions precedent to the institution of this lawsuit have been fulfilled.
2

Case 4:06-cv-02738 Document 1-1 Filed 08/24/2006 Page 3 of 7
8. Since at least December 2004, Defendant LCR has engaged in unlawful employment practices directed from LCR’s Houston, Texas location, in violation of Sections 101 et. se~ of Title I of the ADA, 42 U.S.C.§ 12101 et seq.
9. On or about October 13, 2004, Aleman applied for an LCR Operator Trainee position to work at LCR’s Houston, Texas worksite located at 12000 Lawndale.
10. LCR contracted with Certified Personnel Resources ("CPR") to identify candidates for the Operator Trainee position. Aleman was identified as a candidate for the position by CPR.
11. On or about December 16, 2004, LCR sent Aleman to Work Ready Rehabilitation Center ("WRRC") for a physical strength test and functional capacity evaluation.
12. The WRRC evaluator noted on one of Aleman’s evaluation forms "brain surgery" which "affect[s] right side of body.., reports right leg fatigue causes limp."
13. While at Work Ready, Aleman successfully demonstrated his ability to perform all essential functions for the "Operator" position, including successfully passing all flexibility and strength tests.
14. On or about December 16, 2004, Aleman successfully demonstrated his ability to climb a designated tower at the LCR worksite within a prescribed amount of time.
15. On or about December 23, 2004, Aleman received a written offer of employment from LCR. The letter stated that employment was to begin January 10, 2005.
16. On or about December 29, 2004, LCR sent Aleman to its third-party medical provider, Memorial Hermann Hospital ("Memorial Hermann"), which operated a clinic onsite at LCR through a Memorial Hermann occupational health service program called WorkLink. At
3

Case 4:06-cv-02738 Document 1-1 Filed 08/24/2006 Page 4 of 7
the WorkLink clinic Aleman completed several written questionnaires and underwent a medical examination by Dr. Martha Armstrong. Aleman revealed his right side weakness, previous head injury and history of seizures.
17. Aleman successfully passed each exam administered by Dr. Martha Armstrong. 18. On or about January 7, 2005, physician’s assistant Dan Hennington phoned Aleman and inquired about Aleman’s right side weakness, previous head injury and history of seizures. 19. On or about January 7, 2005, Aleman was informed by CPR that the date he was to start employment with LCR was moved from January 10 to January 24, 2005. 20. On or about January 10, 2005, Dr. George Hancock, Medical Director, WorkLink, determined that in his opinion Aleman could not safely perform the essential functions of the Operator Trainee position. 21. Based on Dr. Hancock’s recommendation that Aleman was unable to perfoim the job, LCR withdrew the offer of employment on or about January 10, 2005. 22. On or about on or about January 10, 2005, Aleman phoned Dan Hennington and Mr. Hennington told Aleman there were concerns Aleman "would not be 100% because of [his] medical history." 23. LCR discriminated against Aleman by refusing to hire him purportedly based on the third-party medical provider’s recommendation that Aleman was unable to perform the job in violation of Section 102 of Title I of the ADA, 42 U.S.C.§ 12112(a). 24. The effect of the unlawful employment practices complained of above has been to deprive Aleman of equal employment opportunities and otherwise adversely affected his status
4

Case 4:06-cv-02738 Document 1-1 Filed 08/24/2006 Page 5 of 7
as an applicant for employment because he was regarded as disabled and had a record of disability.
25. The unlawful employment practices complained of in the paragraphs above were intentional.
26. The unlawful employment practices complained of in the paragraphs above were done with malice or with reckless indifference to the federally protected rights of Aleman.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant LCR, its officers, successors, assigns, and all persons in active concert or participation with it, from refusing to hire qualified individuals with disabilities or from engaging in any other employment practice which discriminates on the basis of disability. B. Order Defendant LCR to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices C. Order Defendant LCR to make Aleman whole, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to instatement of Aleman or order an award of front pay in an amount to be proved at trial if instatement is impractical. D. Order Defendant LCR to make whole Aleman by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in
5

Case 4:06-cv-02738 Document 1-1 Filed 08/24/2006 Page 6 of 7

the paragraphs above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, humiliation, and job search expenses in amounts to be determined at trial.
E. Order Defendant LCR to pay Aleman punitive damages for its malicious and reckless conduct, as described above, in an amount to be determined at trial.

Fo

Grant such further relief as the Court deems necessary and proper in the public

interest.

G. Award the Commission its costs of this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its complaint.

Respectfully submitted,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
RONALD S. COOPER General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel 1801 L. Street, N.W. Washington, D.C. 20507

Case 4:06-cv-02738 Document 1-1 Filed 08/24/2006 Page 7 of 7
Aimee L. McFerren Trial Attorney Attorney-in-Charge Kentucky Bar No.: 89912 Southern District No.: 36953 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1919 Smith Street, 7th Floor Houston, Texas 77002-8049 (713)209-3390 Fax: (713) 209-3402
OF COUNSEL: Jim Sacher Regional Attomey Rose Adewale-Mendes Supervisory Trial Attorney Equal Employment Opportunity Commission 1919 Smith Street, 7th Floor Houston, Texas 77002
7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

LYONDELL-CITGO REFINING, L.P., §

§

Defendant.

§

CIVIL ACTION NO. H-06-2738

MEMORANDUM AND ORDER
Pending are Defendant Lyondell-Citgo Refining, L.P.’s Motion for Summary Judgment (Document No. 17), and Plaintiff Equal Employment Opportunity Commission’s Motion for Partial Summary Judgment as to Liability and Defendant’s Affirmative Defenses (Document No. 28). After carefully considering the motions, responses, replies, sur-reply,1 and the applicable law, the Court concludes as follows.
I. Background
The Equal Employment Opportunity Commission (“EEOC”) brings this employment discrimination action on behalf of Charging Party Steve Aleman (“Aleman”), against Defendant Lyondell-Citgo Refining,

1 Plaintiff EEOC’s request for leave to file a sur-reply (Document No. 34) is GRANTED, and Defendant’s objection to and request to strike the EEOC’s motion for leave (Document No. 36) is DENIED.

L.P. (“LCR”), contending that LCR violated Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12117(a), when it withdrew a conditional offer of employment to Aleman. In October, 2004, Aleman, along with 918 others, applied for one of 25 positions as an Operator Trainee at LCR’s Houston-area refinery. Document No. 29 exs. C-2, E at 17:2-10, 18:3-11. LCR’s selection process involved several steps: (1) an aptitude test administered by Certified Personnel Resources; (2) interviews with LCR personnel; (3) physical ability testing conducted by Work Ready, a third-party vendor; and (4) conditional offers contingent on the results of a pre-employment physical, reference check, and drug test. Id. exs. C-3, E at 20:13-21:19, 22:4-7, 62:10-16, 68:17-20. Aleman was one of approximately 30 persons who advanced to the third phase of the screening process.
On December 19, 2004, Aleman took and passed a physical ability test administered by Work Ready, which required him to demonstrate, among other things, an ability to climb ladders and stairs of 120 feet and to ascend and descend an 80-foot high tower in less than 5 minutes. Id. exs. C-8, C-9. At that time, Aleman disclosed, and the e valuator noted, that he had undergone brain surgery at some unspecified time which affected the right side of his body, causing him to experience right leg fatigue and to limp. Id. ex. C-8. LCR by letter dated December 23, 2004, extended to Aleman a conditional offer of employment. Id. ex. C-6.
2

LCR had contracted with Memorial Hermann Hospital, through an occupational health service program called Work Link, to conduct pre-placement physicals at an on-site clinic at LCR’s facility. Dr. George Hancock (“Dr. Hancock”) served as medical director of the clinic. Id. ex. H at 23:12-20. Dan Hennington (“Hennington”), a physician’s assistant, usually conducted the examinations and communicated the results to Dr. Hancock, who undisputedly had the final say regarding whether a given candidate for a position at LCR was medically qualified to perform a particular job. Id.exs. F at 55:5-11, H at 18:24-19:1, 21:5-14, 23:12-15. LCR had provided to Dr. Hancock and his staff a list of physical requirements for the position of Operator which included the ability to climb for one to three hours a day. Id. exs. C-7, F at 56:1-6.
On December 29, 2004, Aleman reported to LCR’s on-site clinic for the pre-placement physical. Aleman was examined by Dr. Martha Armstrong (“Dr. Armstrong”), a physician temporarily filling in for Hennington while he was on vacation. Id. ex. I at 30:24-31:4, 44:9-20. As part of the examination, Aleman had completed a medical history form, in which he disclosed that he had sustained a closed head injury in April, 1986 that required hospitalization, and he had also experienced seizures. He also filled in a “Respirator Questionnaire,” in which he responded “yes” to a question that asked whether he had any weakness in his arms, hands, legs, or feet. Id. exs. C-11, G at 40:19-43:19. Although Dr.
3

Armstrong noted Aleman’s previous brain injury and resultant seizures, she concluded based on her examination that Aleman did not have any neurological, motor strength, or reflex deficits and cleared Aleman for respirator use. Id.exs. C-12 at 17, G at 24:719, 43:12-19, 59:8-24.
Upon Hennington’s return in January, 2005, one of the nurses at the clinic drew his attention to Aleman’s file--in particular, to the unspecified muscle weakness Aleman had disclosed in the Respirator Questionnaire. Id. ex. I at 50:10-52:15. Hennington contacted Dr. Hancock, bringing to his attention Aleman’s disclosure on the Respirator Questionnaire and the notation on Aleman’s physical ability evaluation that he suffered from right leg fatigue and a limp as a result of brain surgery. Id. at 70:211. Dr. Hancock directed Hennington to call Aleman and obtain more information about these disclosures. Id. exs. D at 108:19-109:24, H at 118:10-15, I at 70:2-11, 16-24.
Hennington called Aleman and, according to Hennington, Aleman explained that he had sustained blunt force trauma to the head when he was 18 years old as a result of a violent crime. The incident required surgery, caused him to suffer seizures for three years, and left him with “residual right-sided weakness [that] affected [his] upper and lower extremities.” Id. ex. D at 109:12-110:1; ex. I at 72:4-11. In describing his condition, Aleman purportedly explained, “‘Sometimes I have to remind myself to pick up my right
4

foot or it drags.’” Id. at 11-13. Hennington reported this information to Dr. Hancock. Id. ex. H at 52:22-25, 53:1-19.
Based on the details provided by Hennington, a review of Aleman’s disclosures in the medical history and other forms, Hancock determined that Aleman could not safely climb ladders due to his right-side weakness. Id. ex. H at 45:22-47:9, 51:10-52:17, 53:22-24, 57:1-6, 98:16-18, 104:17-24, 105:12-15, 118:10-119:9, 120:17-23. Specifically, Hancock believed that such “unilateral” weakness in the right side of Aleman’s body increased the likelihood that he might slip and fall while climbing, thereby posing a danger to himself and others. Id. at 57:17-24, 59:4-9, 102:1-12, 104:25-105:19. Dr. Hancock sent to LCR’s Human Resources Department a form indicating that Aleman was not medically qualified for the Operator position. Document No. 29 ex. C-13. Based solely on this recommendation, LCR withdrew its conditional offer of employment to Aleman. Id. exs. A at 3-4 ¶ 5, 4 at ¶ 8, F at 64:25-67:8.
Aleman timely filed a charge with the EEOC, who subsequently brought this suit, alleging that LCR violated the ADA, 42 U.S.C. § 12112(a), by “refusing to hire him purportedly based on the third-party medical provider’s recommendation that Aleman was unable to perform the job [of Operator].” Document No. 1 ¶ 23. The parties now cross-move for summary judgment disputing, inter
5

alia, whether LCR regarded Aleman as disabled, and whether Aleman had a record of disability. Document No. 17; Document No. 28.
II. Standard of Review
Rule 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving party must “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986).
Once the movant carries this burden, the burden shifts to the nonmovant to show that summary judgment should not be granted. Morris v. Covan World Wide Moving, Inc. , 144 F.3d 377, 380 (5th Cir. 1998). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. Id. “[T]he nonmoving party must set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case.” Id.
In considering a motion for summary judgment, the district court must view the evidence “through the prism of the substantive evidentiary burden.” Anderson v. Liberty Lobby, Inc., 106 S. Ct.
6

2505, 2513 (1986). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). “If the record, viewed in this light, could not lead a rational trier of fact to find” for the nonmovant, then summary judgment is proper. Kelley v. PriceMacemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993) (citing Matsushita, 106 S. Ct. at 1351). On the other hand, if “the factfinder could reasonably find in [the nonmovant's] favor, then summary judgment is improper.” Id.
III. Discussion
A. Standards under the ADA
The ADA “prohibits an employer from discriminating against ‘an individual with a disability’ who with ‘reasonable accommodation’ can perform a job's essential functions . . . .” U.S. Airways, Inc. v. Barnett, 122 S. Ct. 1516, 1517 (2002) (quoting 42 U.S.C. § 12112(a)). Claims under the ADA are analyzed under the McDonnell Douglas burden-shifting framework. See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999) (analyzing an ADA claim under McDonnell-Douglas). To establish a prima facie case of discrimination under the ADA, a plaintiff must show that: (1) he was “disabled”; (2) he was qualified for the job; and (3) the defendant subjected him to an adverse employment decision because of his
7

disability. See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999) (citing 42 U.S.C. § 12112(a)); see also Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 474 (5th Cir. 2006). If this burden is met, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its decision. See Raytheon Co. v. Hernandez, 124 S. Ct. 513, 517 n.3 (2003); McInnis v. Alamo Comty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir. 2000). Once the employer proffers such a reason, the burden shifts back to the plaintiff to prove that the reason was merely a pretext for discrimination. McInnis, 207 F.3d at 280.
Central to this case is whether the EEOC has met the first prong of its prima facie case of disability discrimination, namely, whether it has demonstrated that Aleman was “disabled” within the meaning of the ADA. The ADA defines “disabled” as: “(A) a physical impairment that substantially limits one or more of the major life activities of [an] . . . individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2); see also 29 C.F.R. § 1360.2(g). The EEOC does not contend that Aleman actually suffered a substantially limiting impairment to a major life activity. Rather, it asserts that LCR “regarded” him as disabled, or, alternatively, that he has a “record” of disability, both of which are addressed below. See Document No. 31 at 9 (limiting its theories of liability to “regarded as” disabled and “record of” disability claims).
8

B. Regarded as Disabled

The parties dispute whether LCR regarded Aleman as disabled

when it withdrew its conditional offer of employment to Aleman

based on the recommendation of Dr. Hancock, the third-party

provider who reviewed Aleman’s written disclosures, considered the

information Aleman provided to Hennington during their phone

conversation, and deemed Aleman to be medically unqualified to

serve as Operator. “In order to be ‘regarded as’ disabled a

plaintiff must: . . . have a physical or mental impairment that

does not substantially limit major life activities, but be treated

as such by an employer.” McInnis , 207 F.3d at 281; see also

ConAgra Grocery Prods. Co. , 436 F.3d at 475;

29 C.F.R.

§ 1630.2(l)(1). Or, the plaintiff must prove that the supposed impairment, if it in fact existed as perceived, would be

substantially limiting. See Dupre v. Charter Behavioral Health Sys. of Lafayette Inc., 242 F.3d 610, 616 (5th Cir. 2001).
The EEOC asserts that Dr. Hancock, and, hence, LCR, erroneously believed that Aleman suffered from a substantially limiting impairment to a major life activity. Document No. 28 at 9. “Major life activities” are those “of central importance to daily life,” Toyota Motor Mfg., Ky., Inc. v. Williams, 122 S. Ct. 681, 691 (2002), such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working,” 29 C.F.R. § 1630.2(i). While not also referenced in the

9

EEOC regulations, the Fifth Circuit has recognized “lifting,
reaching, sitting, or standing” as potential major life activities.
See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007)
(citing Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 n.7 (5th
Cir. 1995)). As the EEOC acknowledges, Dr. Hancock’s deposition
testimony reflects that the “only factor he considered in
disqualifying Aleman from the job of Operator was . . . [Aleman’s] alleged inability to safely climb . . . .”2 Document No. 34 at 5.
Indeed, Dr. Hancock unequivocally and consistently testified
throughout his deposition that the sole basis for his determination
that Aleman was unqualified to serve as an Operator for LCR was his
belief that Aleman’s self-proclaimed right-side weakness rendered
him unable safely to climb ladders. Document No. 31 ex. H at
53:22-54:5, 57:1-6, 14-24, 59:4-7, 12-20, 98:13-18, 99:10-17,
104:18-105:7, 105:12-19. Furthermore, the EEOC concedes that the
Fifth Circuit has held that “climbing” is not a major life activity
for purposes of the ADA. See Document No. 31 at 15 n.7; Rogers v.
Int’l Marine Terminals, Inc., 87 F.3d 755, 758 n.2 (5th Cir. 1996)
2 The EEOC attempts to characterize Dr. Hancock’s explanation for his decision as “controverted” based on “the fact that there is no physical evidence contemporaneous with the decision to show that this was, in fact [Dr.] Hancock’s focus . . . .” Document No. 35 at 3, 5. However, the absence of any evidence bolstering Dr. Hancock’s testimony does not render his explanations “controverted.” To controvert Dr. Hancock’s testimony, the EEOC must submit evidence suggesting that his determination was based on considerations other than those stated in his deposition. Having failed to do so, Dr. Hancock’s testimony as to the reasons for his medical disqualification of Aleman is therefore uncontroverted.
10

(“Climbing is not such a basic, necessary function and this court

does not consider it to qualify as a major life activity under the

ADA.”); see also Robinson v. Global Marine Drilling Co., 101 F.3d

35, 37 (5th Cir. 1996) (quoting Rogers). That Dr. Hancock regarded

Aleman as unable safely to climb is insufficient to establish that

LCR regarded Aleman as substantially limited in a major life

activity.

Nonetheless, the EEOC cites portions of Dr. Hancock’s

deposition in which he noted the impact of Aleman’s self-described

right-side weakness on his ability to grip, walk, and balance--

concerns that the EEOC alleges “were in Hancock’s mind at the time

he made the decision”--as “circums tantial evidence” that LCR

regarded Aleman as substantially impaired in the major life

activities of reaching/lifting, walking, standing, and balancing.

Document No. 34 at 3, 5;

see also Document No. 28 at 9.

“[S]ubstantially” in the phrase ‘substantially limits’ suggests

‘considerable’ or ‘to a large degree.’” Toyota Motor Mfg., Ky.,

Inc., 122 S. Ct. at 691. To satisfy its prima facie burden of

proving that Aleman was “regarded as” disabled, the EEOC must prove

that the impairments as perceived by Dr. Hancock would render

Aleman unable to perform a major life activity that an average

person can perform, or would significantly restrict the condition,

manner, or duration that Aleman could engage in such an activity,

compared to the average person. 29 C.F.R. § 1620.2(j)(i)(i), (ii);

11

see also Deas v. River West, L.P. , 152 F.3d 471, 480 (5th Cir. 1998). Stated differently, an em ployer may freely “decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job” without violating the ADA. Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2150 (1999).
In the portions of his deposition cited by the EEOC, Dr. Hancock observed that Aleman limped, Document No. 35 ex. H-1 at 97:9, needed to “remind himself to move his leg,” Document No. 29 ex. H at 53:4-6, might have an “issue” with “walking on certain structures,” id. at 54:3-4, could experience “some difficulty with running,” Document No. 29 ex. H. at 97:14-17 (emphasis added), might have had problems grasping items and gripping the bars of a ladder with his right hand, Document No. 35 ex. H-1 at 95:6-24, and lacked full coordination and balance on the right side of his body, Document No. 29 ex. H at 57:17-58:3, 98:13-99:6. Viewed in a light most favorable to the EEOC, Dr. Hancock’s statements reflect a belief that Aleman’s self-professed unilateral weakness could impact activities other than climbing. Awareness of an impairment, however, cannot alone prove that the employer regarded the employee as disabled. See Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996) (“[W]e hold that the mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that
12

perception caused the adverse employment action.” (citing Chandler
v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993),cert. denied,
114 S. Ct. 1386 (1994))).
Even assuming that the impairments noted by Dr. Hancock relate
to Aleman’s abilities to engage in one or more of the major life
activities enumerated by the EEOC, Dr. Hancock’s testimony reflects
that he neither believed Aleman to be completely unable to engage
in any particular activity, nor that Aleman’s capacity to perform
any activity differed more than slightly from that of non-impaired
individuals. Such insignificant impairments, if they existed as
perceived, are insufficient to constitutesubstantial limitations.3
3 Indeed, courts have held impairments such as walking with a limp, mild difficulty with grasping objects, and slight balance problems to be insufficiently severe to constitute “disabilities” within the meaning of the ADA. See, e.g., Philip v. Ford Motor Co., 328 F.3d 1020, 1025 (8th Cir. 2003) (inability to operate vibrating or air tools, or glue gun on a repeated basis did not establish that plaintiff was substantially impaired in his ability to grip); McCoy v. USF Dugan, Inc., 42 F. App’x 295, 297 (10th Cir. 2002) (unpublished opinion) (holding multiple sclerosis attacks that affected plaintiff’s equilibrium and moderately restricted her walking ability was not a substantial impairment to the major life activity of walking); Fultz v. City of Salem, 51 F. App’x 624, 625 (9th Cir. 2002) (unpublished opinion) (assuming gripping to be a major life activity, but holding mere “difficulty” in gripping not to constitute a significant restriction); Talk , 165 F.3d at 1025 (concluding that walking more slowly with a limp did not constitute a substantial limitation); Mower v. Century I Chevrolet, Inc. , Civil Action No. 02-cv-01632-MSK-MEH, 2006 WL 2729265, at *15 (D. Colo. June 16, 2006) (plaintiff’s occasional loss of balance and falls down stairs did not substantially limit his walking ability); Dlugos v. Eastman Kodak Co. , Civil Action No. 95-1525, 1996 WL 679411, at **5-6 (W.D. Pa. Sept. 5, 1996) (concluding plaintiff suffering from tinnitus, dizziness, and fullness of the ears failed to demonstrate that these impairments significantly restricted his ability to balance, work, or concentrate).
13

See Albertson’s, Inc. v. Kirkingburg, 119 S. Ct. 2162, 2168 (1999)

(holding a mere “difference” in a person’s ability to perform major

life activities as compared to ordinary persons does not qualify as

a “substantial limitation” unless the limitation is significant).

Moreover, the EEOC cannot satisfy its summary judgment burden by

asserting in conclusory fashion that Dr. Hancock’s perception of

Aleman as unable safely to climb “necessarily” means that he

regarded Aleman as also “substantially limited in one or more major

life activities,” Document No. 28 at 9.

See, e.g., Pegram v.

Honeywell, Inc., 361 F.3d 272, 286 (5th Cir. 2004) (rejecting a

plaintiff’s “conclusory allegations” that she was substantially

limited in a major life activity); Deas, 152 F.3d at 479 (rejecting

plaintiff’s “bald assertion” that because defendant’s medical

provider believed the plaintiff suffered from seizures, he must

also have “perceived her as being substantially limited in the

major life activities of seeing, hearing, and speaking”). “Where,

as in the case sub judice, the claim is that [an individual] was

‘regarded as’ having a substantially limiting impairment, the

requirement that the perceived impairment be substantially limiting

remains, and the plaintiff bears the burden of making aprima facie

showing that the impairment, as the defendant perceived it, was

substantially limiting.” Deas , 152 F.3d at 480. The EEOC has

wholly failed to make this requisite showing, and, accordingly, LCR

14

is entitled to summary judgment on the EEOC’s “regarded as”
disabled claim.4
C. Record of Disability
In the alternative, the EEOC contends, and LCR disagrees, that
Aleman is disabled because of an alleged record of disability.
Document No. 32 at 11-13; Document No. 28 at 12-13 A plaintiff has
a record of disability if he “has a history of, or has been
misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.” 29 C.F.R.
§ 1630.2(k). “Although an individual may show that he or she has
a record of impairment, if he or she fails to show that the
impairment is substantially limiting, the individual may not
qualify as disabled under this prong.” Blanks v. Sw. Bell
Commc’ns, Inc., 310 F.3d 398, 402 (5th Cir. 2002);see also Tice v.
4 The EEOC throughout its briefing criticizes LCR for basing its employment decision on the allegedly inadequate evaluation of Aleman’s physical condition performed by Dr. Hancock. See, e.g., Document No. 28 at 11; Document No. 31 at 12-13. Because the EEOC failed to meet its prima facie burden of proving that LCR regarded Aleman as disabled, the Court finds it unnecessary to address whether Dr. Hancock conducted a sufficiently particularized inquiry to legitimize LCR’s reliance on his determination. See ConAgra, 436 F.3d at 481-82 (holding, in pertinent part, that a defendant employer’s burden under McDonnell-Douglas of articulating a legitimate, non-discriminatory reason for its employment decision cannot be satisfied by relying on a “blanket determination” by its third-party medical provider that a candidate for employment is unqualified to work in any capacity for the defendant, when that provider failed to consid er any “particularized evidence” or conduct an “individualized review”).
15

Ctr. Area Transp. Auth. , 247 F.3d 506, 513 (3d Cir. 2001) (“A

plaintiff attempting to prove the existence of a ‘ record’ of

disability still must demonstrate that the recorded impairment is

a ‘disability’ within the meaning of the ADA.”).

Although the EEOC contends that Aleman’s “history of both

seizures and right[-]side weakness . . . can be substantially

limiting to a number of major life activities, including walking,

standing and balance[,]” Document No. 28 at 12 (emphasis added),

see also Document No. 31 at 18, it presents no evidence suggesting

that these impairments actually posed substantial limitations to

Aleman’s ability to walk, stand, balance, or, indeed, to engage in

any recognized major life activity. See, e.g., Dupre, 242 F.3d at

615 (holding record of back surgery vaguely referenced in medical

screening form did not indicate whether or how plaintiff’s

condition substantially limited a major life activity); Sherrod v.

Am. Airlines, Inc., 132 F.3d 1112, 1121 (5th Cir. 1998) (rejecting

a “record of disability” claim based on plaintiff’s prior back

surgery and disability leave, where “the evidence fails to show

that the impairment substantially limits a major life activity”);

Lomastro v. Caddo Parish Sheriff, No. CIVA 05-320, 2006 WL 1805875,

at **3-4 (W.D. La. June 29, 2006) (holding plaintiff’s history of

seizures does not constitute a history of disability).

The EEOC’s assumption that Aleman’s seizures and unilateral

weakness constitute disabilities

per se contravenes the

16

individualized, case-by-case proof of disability required to
prevail on an ADA claim. See Deas, 152 F.3d at 477-78 (declining
to “depart from [the] general practice of determining disability
status on a case-by-case basis,” and refusing to recognize seizures
as a disability per se). At most, Aleman’s medical disclosures
reflect a record of impairment, which is insufficient to raise a
genuine issue of material fact as to whether those impairments
substantially limited his ability to engage in any particular major
life activity. See Blanks, 310 F.3d at 402; Robinson , 101 F.3d
at 37 (holding diagnosis and documentation of asbestosis in
plaintiff’s personnel file reflected an impairment, but failure to
present evidence that plaintiff was substantially impaired in a
major life function warranted summary judgment for the employer).
Accordingly, LCR’s motion for summary judgment on the EEOC’s
“record of” disability claim is granted.5
5 The EEOC’s further contention that LCR cannot prevail on summary judgment because it “did not move for summary judgment on Plaintiff’s ‘record of’ [disability] claim” must also be rejected. Document No. 34 at 4. Whether Aleman had a “record of” disability is merely one of several means by which the EEOC may prove that Aleman was “disabled.” See 42 U.S.C. § 12102(2) (defining “disability” to include, inter alia, “a record of” an impairment substantially limiting one or more major life activities). It is neither a separate claim, nor was it pled as such. See Document No. 1 at 4 ¶ 23. LCR in its summary judgment motion asserts that Aleman was not “disabled” within the meaning of the ADA, and specifically argues in its reply that Aleman has no record of disability. See Document No. 17 at 9; Document No. 33 at 6-7. Therefore, LCR has in fact moved for summary judgment on this alternative theory of liability under the ADA.
17

IV. Order Accordingly, it is ORDERED that Defendant Lyondell-Citgo Refining, L.P.’s Motion for Summary Judgment (Document No. 17) is GRANTED, and Plaintiff Equal Employment Opportunity Commission’s claims are therefore DISMISSED on the merits. It is further ORDERED that the EEOC’s Motion for Partial Summary Judgment is DENIED (Document No. 28). The Clerk will enter this Order, providing a correct copy to all counsel of record. SIGNED in Houston, Texas, on this 9th day of April, 2008.
____________________________________ EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
18

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

LYONDELL-CITGO REFINING, L.P., §

§

Defendant.

§

CIVIL ACTION NO. H-06-2738

FINAL JUDGMENT

For the reasons set forth in the separate Memorandum and Order signed this day, it is
ORDERED that Defendant Lyondell-Citgo Refining, L.P.’s Motion for Summary Judgment (Document No. 17) is GRANTED, and Plaintiff Equal Employment Opportunity Commission’s claims are therefore DISMISSED on the merits.
This is a FINAL JUDGMENT. The Clerk will enter this Order, providing a correct copy to all counsel of record. SIGNED in Houston, Texas, on this 9th day of April, 2008.

____________________________________ EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE

 
 DC CM/ECF LIVE- US District Court-Texas Southern - Docket Report

https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?102328414249708-L_3...

CLOSED, MEDIATION, MOTREF
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:06-cv-02738

Equal Employment Opportunity Commission v. Lyondell-Citgo Refining, LP Assigned to: Judge Ewing Werlein, Jr Cause: 42:12188 American Disabilities Act of 1990

Date Filed: 08/24/2006 Date Terminated: 04/09/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant

Plaintiff
Equal Employment Opportunity Commission

represented by Aimee Lynn McFerren EEOC 1919 Smith St 7th Floor Houston, TX 77002 713-209-3390 Fax: 713-209-3402 Email: aimee.mcferren@eeoc.gov TERMINATED: 07/11/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Connie Kay Wilhite EEOC 1919 Smith St 6th Fl Houston, TX 77002 713-209-3390 Fax: 713-209-3402 Email: connie.wilhite@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Lyondell-Citgo Refining, LP

represented by Ethel J Johnson Ogletree Dekins et al 500 Dallas St Ste 3000 Houston, TX 77002 713-655-5751 Fax: 713-655-0020 Email: ethel.johnson@odnss.com

1 of 6

4/22/2008 4:19 PM

DC CM/ECF LIVE- US District Court-Texas Southern - Docket Report

https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?102328414249708-L_3...

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Lynn Miscovich Ogletree Deakins et al One Allen Center 500 Dallas St Ste 3000 Houston, TX 77002 713-655-0855 Fax: 713-655-0020 Email: jennifer.miscovich@odnss.com ATTORNEY TO BE NOTICED
Robert L Ivey Ogletree Deakins et al 500 Dallas St Ste 3000 Houston, TX 77002 713-655-5755 Fax: 713-655-0020 Email: bob.ivey@ogletreedeakins.com ATTORNEY TO BE NOTICED

Date Filed 08/24/2006
08/24/2006 08/24/2006
08/28/2006 09/06/2006 09/19/2006 09/29/2006 12/19/2006

#

Docket Text

1 COMPLAINT against Lyondell-Citgo Refining, LP (Filing fee $ 350) filed by Equal Employment Opportunity Commission.(smurdock, ) Additional attachment(s) added on 8/24/2006 (hlerma, ). (Entered: 08/24/2006)
Summons Issued as to Lyondell-Citgo Refining, LP , filed.(smurdock, ) (Entered: 08/24/2006)
2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 12/29/2006 at 03:00 PM in Room 11521 before Judge Ewing Werlein, Jr. ( Signed by Judge Ewing Werlein, Jr ) Parties notified. (smurdock, ) (Entered: 08/24/2006)
Fee waived re: 1 Complaint , filed. (agould, ) (Entered: 08/28/2006)
3 CERTIFICATE OF INTERESTED PARTIES by Equal Employment Opportunity Commission, filed.(McFerren, Aimee) (Entered: 09/06/2006)
4 ANSWER to Complaint by Lyondell-Citgo Refining, LP, filed.(ledwards, ) (Entered: 09/20/2006)
5 SUMMONS Returned Executed. Lyondell-Citgo Refining, LP served on 8/31/2006, answer due 9/20/2006, filed.(sbyrum, ) (Entered: 10/02/2006)
6 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Lyondell-Citgo Refining, LP, filed.(Miscovich, Jennifer) (Entered: 12/19/2006)

2 of 6

4/22/2008 4:19 PM

DC CM/ECF LIVE- US District Court-Texas Southern - Docket Report

https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?102328414249708-L_3...

12/19/2006 12/29/2006
01/02/2007
03/28/2007 04/04/2007 04/04/2007 06/05/2007
06/12/2007 06/15/2007
06/19/2007 06/19/2007 07/11/2007 07/12/2007 01/11/2008

7 CERTIFICATE OF INTERESTED PARTIES by Lyondell-Citgo Refining, LP, filed.(Miscovich, Jennifer) (Entered: 12/19/2006)
8 DOCKET CONTROL ORDER: Deft Expert Witness List due by 7/16/2007; Discovery due by 11/30/2007; Dispositive Motion Filing due by 1/11/2008; Joinder of Parties due by 5/18/2007; Joint Pretrial Order due by 4/15/2008; Non-Dispositive Motion Filing due by 1/11/2008; Pltf Expert Witness List due by 5/31/2007; Docket Call set for 5/2/2008 at 04:00 PM in Fifth Circuit Courtroom 11-D before Judge Ewing Werlein, Jr.( Signed by Judge Ewing Werlein, Jr ) Parties notified.(jhancock) (Entered: 01/02/2007)
9 MINUTE ENTRY ORDER: Initial Pretrial Conference held. Appearances: Aimee Lynn McFerren, Jennifer Lynn Miscovich. Docket control order entered. The parties will complete all discovery required for purposes of ADR, including mediation, within 90 days and no later than 3/29/07 will advise the Court of a mediator they jointly agree that this case can be referred for mediation.( Signed by Judge Ewing Werlein, Jr ) Parties notified.(jhancock) (Entered: 01/02/2007)
10 STATUS REPORT by Lyondell-Citgo Refining, LP, filed.(Miscovich, Jennifer) (Entered: 03/28/2007)
***Party Nancy L Huston added. (jhancock) (Entered: 04/04/2007)
11 MEDIATION ORDER.( Signed by Judge Ewing Werlein, Jr ) Parties notified.(jhancock) (Entered: 04/04/2007)
12 Alternative Dispute Resolution STATUS REPORT by Equal Employment Opportunity Commission. Have parties agreed to mediate? yes. Mediation will occur July 2007. Name of mediator: Nancy Huston, filed. (Attachments: # 1 Exhibit A# 2 Exhibit B)(McFerren, Aimee) (Entered: 06/05/2007)
13 ORDER Status Conference set for 6/20/2007 at 09:00 AM in Courtroom 704 before Magistrate Judge Frances H Stacy.( Signed by Judge Frances H Stacy ) Parties notified.(bwhite, ) (Entered: 06/12/2007)
14 Alternative Dispute Resolution STATUS REPORT by Equal Employment Opportunity Commission. Have parties agreed to mediate? yes. Mediation will occur July 9, 2007. Name of mediator: Nancy Huston, filed.(McFerren, Aimee) (Entered: 06/15/2007)
15 CLERKS NOTICE, to cancel Status Conference set for 6/20/07 @ 9:00 am. Parties notified., filed. (bwhite, ) (Entered: 06/19/2007)
***Deadlines terminated. (bwhite, ) (Entered: 06/19/2007)
26 NOTICE of attorney substitution by Equal Employment Opportunity Commission. Attorney Aimee Lynn McFerren terminated, filed. (esmith, ) (Entered: 01/28/2008)
16 STATUS REPORT by Lyondell-Citgo Refining, LP, filed.(Miscovich, Jennifer) (Entered: 07/12/2007)
17 MOTION for Summary Judgment by Lyondell-Citgo Refining, LP, filed. Motion Docket Date 1/31/2008. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Proposed Order)(Johnson, Ethel) (Entered:

3 of 6

4/22/2008 4:19 PM

DC CM/ECF LIVE- US District Court-Texas Southern - Docket Report

https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?102328414249708-L_3...

01/12/2008 01/12/2008
01/12/2008 01/15/2008 01/15/2008 01/15/2008
01/24/2008 01/25/2008

01/11/2008)
18 (STRICKEN PER DOC. 21) MOTION for Partial Summary Judgment by Equal Employment Opportunity Commission, filed. Motion Docket Date 2/1/2008. (Wilhite, Connie) Modified on 1/15/2008 (jhancock). (Entered: 01/12/2008)
19 (STRICKEN PER DOC. 21) Exhibits to MOTION for Partial Summary Judgment by Equal Employment Opportunity Commission, filed. Motion Docket Date 2/1/2008. (Attachments: # 1 Exhibit A: Defendant's Answers to Interrogatories# 2 Exhibit B: Defendant's Responses to Requests for Production# 3 Exhibit C: Documents C-1 to C-6# 4 Exhibit C: Documents C-7 to C-15# 5 Exhibit D: Steve Aleman Deposition Excerpts# 6 Exhibit E: Laurie Repnak Deposition Excerpts# 7 Exhibit F: Nancy McConville Deposition Excerpts# 8 Exhibit G: Martha Armstrong Deposition Excerpts# 9 Exhibit H: George Hancock Deposition Excerpts# 10 Exhibit I: Dan Hennington Deposition Excerpts)(Wilhite, Connie) Modified on 1/15/2008 (jhancock). (Entered: 01/12/2008)
20 PROPOSED ORDER re: 19 MOTION for Partial Summary Judgment, 18 MOTION for Partial Summary Judgment, filed.(Wilhite, Connie) (Entered: 01/12/2008)
21 ORDER Striking Document re: 18 MOTION for Partial Summary Judgment, 19 Exhibits to Motion for Partial Summary Judgment.( Signed by Judge Ewing Werlein, Jr ) Parties notified.(jhancock) (Entered: 01/15/2008)
22 MOTION for Extension of Time To File Motion for Summary Judgment by Equal Employment Opportunity Commission, filed. Motion Docket Date 2/4/2008. (Attachments: # 1 Exhibit A: Email Confirmation of MSJ Filing# 2 Exhibit B: Email Confirmation of MSJ Exhibits Filing# 3 Exhibit C: Email Confirmation of MSJ Order Filing# 4 Exhibit D: Affidavit of Connie K. Wilhite)(Wilhite, Connie) (Entered: 01/15/2008)
23 EXHIBITS re: 22 MOTION for Extension of Time To File Motion for Summary Judgment by Equal Employment Opportunity Commission, filed. (Attachments: # 1 Exhibit A: Defendant's Answers to Interrogatories# 2 Exhibit Defendant's Responses to RFP's# 3 Exhibit C: Documents C-1 to C-6# 4 Exhibit D: Documents C-7 to C-15# 5 Exhibit Excerpts from Steve Aleman Deposition# 6 Exhibit E: Excerpts from Laurie Repnak Deposition# 7 Exhibit F: Excerpts from Nancy McConville Deposition# 8 Exhibit G: Excerpts from Martha Armstrong Deposition# 9 Exhibit H: Excerpts from George Hancock Deposition# 10 Exhibit I: Excerpts from Dan Hennington Deposition# 11 Proposed Order Granting MSJ)(Wilhite, Connie) (Entered: 01/15/2008)
24 RESPONSE to 22 MOTION for Extension of Time To File Motion for Summary Judgment Out of Time, filed by Lyondell-Citgo Refining, LP. (Johnson, Ethel) (Entered: 01/24/2008)
25 REPLY in Support of 22 MOTION for Extension of Time To File Motion for Summary Judgment, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit A: Declaration of Connie Wilhite)(Wilhite, Connie) (Entered: 01/25/2008)

4 of 6

4/22/2008 4:19 PM

DC CM/ECF LIVE- US District Court-Texas Southern - Docket Report

https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?102328414249708-L_3...

01/28/2008 01/28/2008 01/28/2008
01/28/2008 01/31/2008
02/19/2008 02/20/2008 02/28/2008
02/29/2008 03/18/2008

27 ORDER granting 22 Motion for Extension of Time.( Signed by Judge Frances H Stacy ) Parties notified.(kosborne, ) (Entered: 01/29/2008)
28 MOTION for Partial Summary Judgment as to Liability and Defendant's Affirmative Defenses by Equal Employment Opportunity Commission, filed. Motion Docket Date 2/19/2008. This is a duplicate of 18 and was re-filed as of this date per Order #27.(ltien, ) (Entered: 01/29/2008)
29 EXHIBITS re: 28 MOTION for Partial Summary Judgment as to Liability and Defendant's Affirmative Defenses by Equal Employment Opportunity Commission, filed. (Attachments: # 1 Exhibit A: Defendant's Answer to Interrogatories# 2 Exhibit B: Defendant's Responses to Requests for Production# 3 Exhibit C: Documents C-1 to C-6# 4 Exhibit C: Documents C-7 to C-15# 5 Exhibit D: Steve Aleman Deposition Excerpts# 6 Exhibit E: Laurie Repnak Deposition Excerpts# 7 Exhibit F: Nancy McConville Deposition Excerpts# 8 Exhibit G: Martha Armstrong Deposition Excerpts# 9 Exhibit H: George Hancock Deposition Excerpts# 10 Exhibit I: Dan Hennington Deposition Excerpts) This is a duplicate of 19 and was re-filed as of this date per Order #27.(ltien, ) (Entered: 01/29/2008)
30 PROPOSED ORDER re: 28 MOTION for Partial Summary Judgment as to Liability and Defendant's Affirmative Defenses, 29 Exhibits,, filed. This is a duplicate of 20 and was re-filed as of this date per Order #27.(ltien, ) (Entered: 01/29/2008)
31 RESPONSE in Opposition to 17 MOTION for Summary Judgment, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit C: Documents# 2 Exhibit C, Pt. 2# 3 Exhibit D: Aleman Deposition# 4 Exhibit E: Repnak Deposition# 5 Exhibit F: McConville Deposition# 6 Exhibit G: Armstrong Deposition# 7 Exhibit H: Hancock Deposition# 8 Exhibit I: Hennington Deposition# 9 Exhibit J: M. Aleman Deposition# 10 Proposed Order)(Wilhite, Connie) (Entered: 01/31/2008)
32 RESPONSE in Opposition to 28 MOTION for Partial Summary Judgment as to Liability and Defendant's Affirmative Defenses, filed by Lyondell-Citgo Refining, LP. (Ivey, Robert) (Entered: 02/19/2008)
33 REPLY to Response to 17 MOTION for Summary Judgment, filed by Lyondell-Citgo Refining, LP. (Ivey, Robert) Linked to #17 on 2/28/2008 (ltien, ). (Entered: 02/20/2008)
34 REPLY to Response to 28 MOTION for Partial Summary Judgment and SUR-REPLY to Reply to Response to 17 MOTION for Summary Judgment, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Supplement Tables of Contents & Authorities# 2 Exhibit K: Email# 3 Proposed Order Granting Leave)(Wilhite, Connie) Modified on 3/11/2008 (ltien, ). (Entered: 02/28/2008)
35 EXHIBITS re: 34 Reply in Support of Motion, by Equal Employment Opportunity Commission, filed.(Wilhite, Connie) (Entered: 02/29/2008)
36 OBJECTIONS to 34 SUR-REPLY to Reply to Response to 17 MOTION for Summary Judgment, filed by Lyondell-Citgo Refining, LP. (Ivey, Robert) Linked

5 of 6

4/22/2008 4:19 PM

DC CM/ECF LIVE- US District Court-Texas Southern - Docket Report

https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?102328414249708-L_3...

03/27/2008 04/09/2008 04/09/2008

to #17 on 3/20/2008 (ltien, ). (Entered: 03/18/2008)
37 RESPONSE to 36 Objections to 34 Sur-Reply to Reply to Reponse to 17 MOTION for Summary Judgment, filed by Equal Employment Opportunity Commission. (Wilhite, Connie) Linked to #17 on 4/1/2008 (ltien, ). (Entered: 03/27/2008)
38 MEMORANDUM AND ORDER granting 17 Motion for Summary Judgment; denying 28 Motion for Partial Summary Judgment.( Signed by Judge Ewing Werlein, Jr ) Parties notified.(jhancock) (Entered: 04/09/2008)
39 FINAL JUDGMENT. Case terminated on 04/09/2008.( Signed by Judge Ewing Werlein, Jr ) Parties notified.(jhancock) (Entered: 04/09/2008)

PACER Service Center

Transaction Receipt

04/22/2008 16:19:04

PACER Login: wu0079

Client Code: eeoc

Description: Docket Report Search Criteria: 4:06-cv-02738

Billable Pages: 4

Cost:

0.32

6 of 6

4/22/2008 4:19 PM