IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CARNEY ELDRIDGE, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-2073-D

VS. §

 §

AMERICAN RESIDENTIAL SERVICES §

L.L.C. f/k/a RESCUE ROOTER, §

L.L.C., §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

This is an action by plaintiff Carney Eldridge (“Eldridge”)

against defendant American Residential Services L.L.C. f/k/a Rescue

Rooter, L.L.C. (“ARS”) for disability discrimination under the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101

et seq., and for retaliation for filing a claim for workers’

compensation benefits, in violation of the Texas Workers’

Compensation Act (“TWCA”), Tex. Lab. Code Ann. § 451.001 (Vernon

1996). ARS’s motion for summary judgment presents the dispositive

questions whether Eldridge is disabled within the meaning of the

ADA and whether he has adduced evidence that would permit a

reasonable trier of fact to find retaliation. Concluding that a

reasonable trier of fact could not find that Eldridge is disabled

or that ARS retaliated against him, the court grants ARS’s motion.

Because the court has raised sua sponte one ground on which it

relies to dismiss Eldridge’s TWCA-based retaliation claim, it

permits Eldridge to file a response in opposition to granting

 

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1The court recounts the evidence in a light favorable to

Eldridge, as the summary judgment nonmovant, and draws all

reasonable inferences in his favor. See, e.g., U.S. Bank Nat’l

Ass’n v. Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex.

2006) (Fitzwater, J.) (citing Clift v. Clift, 210 F.3d 268, 270

(5th Cir. 2000)).

2

ARS purchased Rescue Rooter in 1999.

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summary judgment as to that claim. 

I

A

Eldridge——a former ARS Service Technician——sues ARS for

disability discrimination under the ADA and for retaliating against

him, in violation of the TWCA, for filing a claim for workers’

compensation benefits. He started his employment in February 1991,

working as a Responsible Master Plumber at the Dallas-Fort Worth

Rescue Rooter office.1

 From 1991 to 2001 Eldridge was responsible

at various times for the Dallas, Fort Worth, and/or Houston Rescue

Rooter2 locations.

In October 2002 Eldridge developed fluid on his right knee.

An Employer’s First Report of Injury or Illness dated October 21,

2002 reflected that Eldridge claimed the injury was work related,

and the report commenced the workers’ compensation claim process.

Following a doctor appointment on October 22, 2002, the physician

recommended that Eldridge not kneel, squat, or climb stairs or

ladders. At an October 29, 2002 appointment, the doctor prescribed

sedentary duty and restricted him from standing, kneeling,

 

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squatting, bending, stooping, or climbing stairs or a ladder, and

limited him to minimal walking. Eldridge was referred to an

orthopaedic surgeon, who drained his knee and prescribed an antiinflammatory medicine.

In December 2002 Eldridge, accompanied by his case worker, saw

Richard F. Haenke, D.O. (“Dr. Haenke”), an orthopaedic surgeon.

Dr. Haenke diagnosed bursitis and traumatic chondromalacia of his

right knee. He recommended arthroscopy for bursectomy and possible

chondroplasty and synovectomy, continued light duty status,

medication, and an MRI for his right knee. Dr. Haenke placed

Eldridge on restrictions of two hours of standing per day, no

kneeling or squatting, no bending or stooping, two hours of

walking, no climbing stairs or ladders, and no lifting or carrying

objects weighing more than 20 pounds. He also prescribed 50%

sedentary work. Eldridge underwent an MRI later in December. Dr.

Haenke saw Eldridge again on December 30, 2002 and advised him that

he might require surgery to remove the bursa and arthroscopic

surgery to repair the damage to his right knee.

Eldridge had applied on December 12, 2002 for a workers’

compensation leave of absence. John Polk (“Polk”), ARS’s Safety

Supervisor and Assistant Manager, informed Eldridge that ARS no

longer had any sedentary or light duty jobs available that could

accommodate the restrictions that Eldridge’s doctor had imposed.

In a December 18, 2002 letter, ARS approved workers’ compensation

 

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leave beginning December 16, 2002 and ending when Eldridge was

released by his treating physician.

In January 2003 Dr. Haenke removed the bursa and performed

arthroscopic surgery on Eldridge’s right knee. Eldridge began

physical therapy for eight to ten weeks as part of a work hardening

program. On May 21, 2003 Dr. Haenke released Eldridge to return to

work with permanent restrictions. These included limiting his time

on his knees and not being required to lift over 50 pounds on a

regular basis. Dr. Haenke also completed a Texas Workers’

Compensation Commission Work Status Report that included a

Functional Capacity Equivalent. He opined that Eldridge was

qualified to perform light duty work, including occasional lifting

of 13 pounds, frequent lifting of seven pounds, and no constant

lifting. In a May 21, 2003 letter, Dr. Haenke stated that Eldridge

was ready for Maximum Medical Improvement and that he was ready to

return to light duty only per his Functional Capacity Evaluation,

but that his job was heavy duty so that he would have to be

retrained for some other type of work. Dr. Haenke informed

Eldridge that he could continue his line of work if he had a helper

with him.

On May 21 Eldridge attempted to return to work and met with

Joe Dan Parson (“Parson”), ARS’s General Manager, Polk, and Tammy

Johnson (“Johnson”), ARS’s Regional People Services Manager.

Eldridge informed them that he wanted to continue working at ARS,

 

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3According to Eldridge, the helper would assist him in lifting

and moving heavy objects and in performing work that would require

extended time on his knees.

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but he was informed that there were no available positions at the

office or any alternative work. He also advised them that Dr.

Haenke had told him he could continue to work in the field as a

plumber, provided he had a helper. When Eldridge requested that

ARS accommodate his disability, he was informed that there were no

available positions. As a last alternative, he requested to return

to the field with the assistance of a full-time helper.3

At the end of May, Parson advised Eldridge that he would

furnish a helper if Eldridge would agree to go on commission. The

helper’s pay would be taken from the commission before Eldridge was

paid. Eldridge agreed to this arrangement effective June 1, 2003.

On Monday, June 2 through Wednesday, June 4, Eldridge prepared and

stocked his truck and worked one day without a helper. On

Thursday, June 5, Parson called Eldridge to his office and informed

him that he could not continue to work until ARS’s corporate office

knew more about his disability and that he needed to return the

truck to the shop.

Johnson advised Eldridge in July that ARS was not willing to

accommodate his disability because it felt doing so imposed a

hardship. She said ARS was willing to help with the transition and

was looking for a dollar amount to resolve Eldridge’s situation.

Johnson left on sick leave, and Eldridge communicated with Nancy

 

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Price (“Price”), ARS’s Human Resources Manager located at corporate

headquarters in Memphis. Price told Eldridge that $5,000 was the

most ARS would do, and he could accept or forget the offer. ARS

advised him that he was on extended medical leave and could remain

on leave until November 2003, when he would be terminated because

he had reached the maximum length of medical leave. Eldridge

asserts that ARS discharged or constructively discharged him by

indicating that it would no longer employ him and would pay him

only a minimal sum to resolve his situation with ARS. After

concluding his employment with ARS, Eldridge went to work in

September 2003 at the City of Fort Worth as a Residential Building

Inspector.

On April 1, 2004 Eldridge filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”) based on

the condition of and limitations imposed by his right knee. On

April 11, 2004 Eldridge applied for disability benefits with ARS’s

long-term disability carrier, Unum Provident (“Unum”). He became

eligible for these benefits six months after his workers’

compensation filing. Unum approved his request by June 3, 2003

letter. Eldridge has received long-term disability benefits from

April 20, 2003 through at least the date he filed his summary

judgment brief. He was approved for 24 months of benefits based on

the determination that he was “limited from performing the material

and substantial duties of [his] regular occupation due to sickness

 

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or injury.” P. Br. 7.

B

Eldridge alleges that ARS violated the ADA by failing to

reasonably accommodate his disability and by constructively

discharging him in September 2003 because it refused to accommodate

his disability. He avers that ARS violated the TWCA by retaliating

against him, i.e., failing to accommodate his disability, for

filing a workers’ compensation claim.

ARS moves for summary judgment. It contends that Eldridge

cannot recover under the ADA because he cannot establish that he is

disabled, he did not qualify——with or without reasonable

accommodation——for the Service Technician position, he did not

suffer an adverse employment action, and ARS had a legitimate,

nondiscriminatory reason for its actions. Concerning Eldridge’s

§ 451.001 retaliation claim, ARS contends he cannot meet the

required element of his prima facie case that obligates him to

prove a causal link between his termination and the filing of his

workers’ compensation claim.

II

A

The ADA mandates that “[n]o covered entity shall discriminate

against a qualified individual with a disability because of the

disability of such individual.” 42 U.S.C. § 12112(a). To prevail

on a discrimination claim under this provision, Eldridge “must

 

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prove that 1) he has a ‘disability’; 2) he is ‘qualified’ for the

job; and 3) an adverse employment decision was made solely because

of his disability.” Turco v. Hoechst Celanese Corp., 101 F.3d

1090, 1092 (5th Cir. 1996) (per curiam) (citing Rizzo v. Children’s

World Learning Ctrs., Inc., 84 F.3d 758, 763 (5th Cir. 1996)). The

sine qua non of a claim under the ADA is that the plaintiff is a

qualified individual with a disability. See id. “‘Disability’ as

used in the ADA means: ‘(A) a physical or mental impairment that

substantially limits one or more of the major life activities of

such individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment.’” Dupre v. Charter

Behavioral Health Sys. of Lafayette Inc., 242 F.3d 610, 613 (5th

Cir. 2001) (quoting 42 U.S.C. § 12102(2)). “[T]he duty to make a

reasonable accommodation arises only when the individual is

disabled . . . .” Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp.

465, 475 (N.D. Tex. 1997) (Solis, J.).

ARS contends it is entitled to summary judgment dismissing

Eldridge’s ADA claim because he is not disabled in that he is not

substantially limited in the major life activity of working. ARS

reasons that, although the ability to lift more than 50 pounds is

an essential function of the Service Technician position, the

inability to perform that one position does not render Eldridge

substantially limited in the major life activity of working. It

argues that, in the Fifth Circuit, because a restriction of 25

 

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pounds on lifting is not a substantial limitation on the major life

activity of working, it follows that a 50-pound limit is not. ARS

also posits that Eldridge resigned his employment while on leave

from ARS to go to work for another employer and thus remains able

to work.

Because ARS will not have the burden of proof at trial on

Eldridge’s ADA claim, it can obtain summary judgment by pointing

the court to the absence of evidence to support an essential

element of the claim. See Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986). Because it has done so, Eldridge must go beyond his

pleadings and designate specific facts showing there is a genuine

issue for trial. See id. at 324; Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary

judgment is mandatory where the nonmoving party fails to meet this

burden. Little, 37 F.3d at 1076. An issue is genuine 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). “The summary judgment nonmovant’s failure to

adduce proof as to any essential element of his cause of action

renders all other facts immaterial.” Edgar v. Gen. Elec. Co., 2002

WL 318331, at *4 (N.D. Tex. Feb. 27, 2002) (Fitzwater, J.) (citing

Celotex Corp., 477 U.S. at 323). 

In his response, Eldridge appears to advance two opposition

arguments. First, he maintains that he qualifies as disabled

 

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4Eldridge sometimes uses the term “range” rather than “class,”

e.g., P. Br. 14, but it is otherwise clear from his briefing that

he relies on an alleged inability to perform a class of jobs to

establish that he is disabled. See infra § II(C) (citing P. June

8, 2006 Resp. 1).

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because ARS regarded him as disabled. Second, he contends he is

disabled because his disability disqualifies him from performing a

broad range of jobs in the job classification of pipelayers,

plumbers, pipefitters, and steamfitters.

B

The court will turn initially to Eldridge’s second argument:

that he qualifies as disabled because he cannot perform a broad

range of jobs in the job classification of pipelayers, plumbers,

pipefitters, and steamfitters. Eldridge argues that his disability

consists of far more than a restriction on lifting, because he is

also limited in squatting, bending, stooping, or working for an

extended period of time on his knees. He maintains that the cases

on which ARS relies are distinguishable because they involve only

a restriction on lifting.

 Eldridge also cites testimony from his declaration that he

contends permits the reasonable finding that he is disqualified

from performing a broad class4 of jobs due to restrictions on

lifting, kneeling, stooping, bending, or working on his knees for

an extended period of time. Based on his work experience in

plumbing or other construction trades, he opines that the

restrictions on lifting and working on his knees for an extended

 

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5ARS objects to this evidence on the ground that the documents

have not been properly authenticated. The court will assume

arguendo that the evidence is admissible.

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period of time prohibit him from working in construction jobs or in

the construction occupation of pipelayers, plumbers, pipefitters,

and steamfitters. Eldridge avers that he reviewed the U.S.

Department of Labor Bureau of Labor Statistics Bulletin 2601, the

2006-07 Career Guide to Industries for construction, and the

Occupational Outlook Handbook, 2006-2007 Edition——Pipelayers,

Pipefitters and Steamfitters and compared his physical limitations

against the physical requirements for construction in general and

the pipefitter’s/plumbing classification in particular.5

 Based on

30 years’ experience in the plumber/pipefitter job classification,

he opines that his physical limitations, including kneeling, not

spending much time on his knees, and lifting restrictions prohibit

him from performing the essential functions of the

plumber/pipefitter classification without the help of an apprentice

or helper, which is a common procedure in the plumber/pipefitter

occupation.

C

“To be substantially limited in the major life activity of

working, one must be ‘significantly restricted in the ability to

perform either a class of jobs or a broad range of jobs in various

classes as compared to the average person having comparable

training, skills and abilities.’” Blanks v. Sw. Bell Commc’ns,

 

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6“A similar inquiry, but for jobs not utilizing similar

training and skills, is contemplated for determining whether a

person is restricted from a ‘broad range of jobs in various

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Inc., 310 F.3d 398, 401 (5th Cir. 2002) (quoting 29 C.F.R.

§ 1630.2(j)(3)). “While an individual need not be completely

unable to work, one is not substantially limited in working if he

or she is unable to perform a single job or a narrow range of

jobs.” Id. In his response to ARS’s notice of supplemental

authority, Eldridge acknowledges that he is not relying on an

inability to perform a broad range of jobs but is instead asserting

an inability to perform a class of jobs. P. June 8, 2006 Resp. 1

(“The instant case deals with a plaintiff who is excluded from a

‘class of jobs’.”) 

“If jobs utilizing an individual’s skills (but perhaps not his

or her unique talents) are available, one is not precluded from a

substantial class of jobs.” Dupre, 242 F.3d at 614 (quoting Sutton

v. United Air Lines, Inc., 527 U.S. 471, 472 (1999)). 

In determining whether someone is restricted

from performing a “class of jobs,” the

regulations contemplate considering the

“number and types of jobs utilizing similar

training, knowledge, skills or abilities” to

the person’s former job, in a reasonably

accessible geographical area, which are also

foreclosed to the person because of his

impairment. 

Tullos v. City of Nassau Bay, 137 Fed. Appx. 638, 648 (5th Cir.

2005) (per curiam) (unpublished opinion) (citing 29 C.F.R.

§ 1630.2(j)(3)(ii)(B)).6

 

 

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classes.’” Tullos, 137 Fed. Appx. at 648 (citing 29 C.F.R.

§ 1630.2(j)(3)(ii)(C)).

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A “class of jobs” is defined by the EEOC

regulations as “[t]he job from which the

individual has been disqualified because of an

impairment, and the number and types of jobs

utilizing similar training, knowledge, skills

or abilities, within that geographical area,

from which the individual is also disqualified

because of the impairment.” 

Crocker v. City of Kenner, 2002 WL 31115255, at *8 (E.D. La. Sept.

23, 2002) (alteration in original) (quoting 29 C.F.R.

§ 1630.2(j)(3)(ii)(B)).

In this case, Eldridge contends he is disabled because medical

restrictions on lifting, kneeling, stooping, bending, or working on

his knees for an extended period of time prohibit him from

performing a broad range of jobs in the job classification of

pipelayers, plumbers, pipefitters, and steamfitters and from

working in construction jobs or in the construction occupation of

pipelayers, plumbers, pipefitters, and steamfitters. Even if the

court accepts this evidence as true, it would not permit a

reasonable trier of fact to find that Eldridge is significantly

restricted in the ability to perform a class of jobs. As noted, a

class of jobs includes not only the job from which Eldridge has

been disqualified but other jobs that utilize similar training,

knowledge, skills, or abilities that are found within the

reasonably accessible geographical area. Eldridge’s evidence does

not purport to address the availability of such other jobs. He

 

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7

Eldridge was actually still on long-term disability leave

from ARS at the time he began working at the City of Fort Worth.

Because the court views the disputed facts favorably to Eldridge,

it assumes that he had completed his employment at ARS when he

began working as a Residential Building Inspector.

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focuses only on the single job classification of pipelayers,

plumbers, pipefitters, and steamfitters, which is insufficient.

See, e.g., Lucas v. Miami County Bd. of Commm’rs, 2000 WL 968806,

at *8 (D. Kan. July 7, 2000) (“Plaintiff provides no evidence

regarding the geographical area to which he has access, or the

number and type of jobs demanding similar training from which

defendant believed he was also disqualified.”). This deficiency in

his summary judgment evidence is material because Sutton teaches

that if jobs that utilize his skills are available, he is not

precluded from a substantial class of jobs. See Sutton, 527 U.S.

at 492. 

Moreover, the fact that after concluding his tenure at ARS7

Eldridge promptly found employment as a City of Fort Worth

Residential Building Inspector would preclude a reasonable trier of

fact from finding that his physical limitations precluded him from

employment using similar training, knowledge, skills, or abilities.

ARS points out in its reply brief that Eldridge’s job experience,

training, and qualifications prepared him for the job of

Residential Building Inspector. It urges that it is nonsensical

for Eldridge to argue that he is precluded from working in a broad

class of jobs when he is performing a job for which he was

 

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8

Eldridge also contends that the fact he had experience as a

Regional Safety Coordinator Operations Manager and Interim General

Manager does not alter the fact that he was disqualified from

working in the major job category or pipelayers, plumbers,

pipefitters, and steamfitters. But because the test for disability

focuses not only on the job from which Eldridge has been

disqualified but also on other jobs that utilize similar training,

knowledge, skills, or abilities that are found within the

reasonably accessible geographical area, evidence concerning

Eldridge’s past employment history is probative of other jobs that

his training, knowledge, skills, or abilities would enable him to

perform.

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qualified based on his past work and training. In his surreply,

Eldridge attempts to counter this contention on the basis that the

Occupational Outlook Handbook treats Construction and Building

Inspector as a separate job category that is not part of the

category for pipelayers, plumbers, pipefitters, and steamfitters.8

But this overlooks that the job of Building Inspector need only be

one that utilizes similar training, knowledge, skills, or abilities

to be sufficient to preclude a reasonable trier of fact from

finding that Eldridge is substantially limited from performing a

class of jobs. In fact, the Occupational Outlook Handbook that

Eldridge cites states that some pipelayers, plumbers, pipefitters,

or steamfitters “move into closely related areas such as . . .

building inspection.” P. App. 100011 (emphasis added). 

In Dupre a plaintiff who suffered from a back condition was

employed as a Mobile Assessment Coordinator. In this position she

responded to requests from outside medical providers for

psychological assessments of patients and provided referrals for

 

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psychological hospitalization. Dupre, 242 F.3d at 611. She

alleged, inter alia, that she was disabled in the major life

activity of working. Id. at 614. The panel rejected this claim.

In pertinent part, it noted that the fact that she had obtained a

job as a Social Services Director at a nursing home after her

discharge suggested “both that she ‘retain[ed] the ability to

compete successfully with similarly skilled individuals’ and that

she was not therefore restricted from performing a broad range or

class of jobs.” Id. at 615 (emphasis added) (alteration in

original) (quoting Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047,

1051 (5th Cir. 1998)). The panel also held that “no reasonable

juror could have concluded that she was substantially limited in

the major life activity of working.” Id.; see also, e.g., Santiago

Clemente v. Executive Airlines, Inc., 213 F.3d 25, 32 (1st Cir.

2000) (affirming summary judgment and holding, inter alia, that

flight attendant who had hearing impairment was not substantially

limited in major life activity of working where record indicated

she was qualified for various ground positions, including

receptionist, payroll clerk, and operational manager).

Viewed favorably to Eldridge, the evidence shows that, due to

medical restrictions on his ability to lift, kneel, stoop, bend, or

work on his knees for an extended period of time, he cannot work at

any job classified as a pipelayer, plumber, pipefitter, or

steamfitter and in construction jobs or in the construction

 

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occupations of pipelayer, plumber, pipefitter, or steamfitter. But

Eldridge has adduced no evidence that would permit a reasonable

trier of fact to find that he is unable to perform other jobs that

utilize similar training, knowledge, skills, or abilities that are

found within the reasonably accessible geographical area. And the

undisputed fact that he promptly found employment as a City of Fort

Worth Residential Building Inspector would preclude a reasonable

trier of fact from finding that his physical limitations prevent

him from employment using similar training, knowledge, skills, or

abilities, i.e., from performing a class of jobs. 

 Eldridge has therefore failed to meet his summary judgment

burden of adducing evidence that would enable a reasonable trier of

fact to find that he is substantially limited in the major life

activity of working and thus disabled under the ADA on that basis.

He cannot recover for ADA discrimination, including failure to

provide a reasonable accommodation.

III

The court now addresses Eldridge’s first contention: that he

is disabled under the ADA because ARS regarded him as disabled. 

A

A person is regarded as disabled if he

(1) has an impairment which is not

substantially limiting but which the employer

perceives as constituting a substantially

limiting impairment; (2) has an impairment

which is substantially limiting only because

of the attitudes of others toward such an

 

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impairment; or (3) has no impairment at all

but is regarded by the employer as having a

substantially limiting impairment.

Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996)

(citing Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727-28 n.19

(5th Cir. 1995)). “[T]he covered entity must entertain some

misperception regarding the individual——either that he has a

substantially limiting impairment that he does not have or the

impairment is not so limiting as believed.” Aldrup v. Caldera, 274

F.3d 282, 287 (5th Cir. 2001). The plaintiff “must establish that

the impairment, if it existed as perceived, would be substantially

limiting.” Dupre, 242 F.3d at 616 (citing McInnis v. Alamo Cmty.

Coll. Dist., 207 F.3d 276, 281 (5th Cir. 2000)). “An individual

must be regarded as precluded from more than a particular job in

order to establish that he was treated a[s] having an impairment

that substantially limits one’s ability to work.” McClure v. Gen.

Motors Corp., 75 Fed. Appx. 983, 2003 WL 21766539, at *2 (5th Cir.

2003) (per curiam) (unpublished opinion) (citing Murphy v. United

Parcel Serv., Inc., 527 U.S. 516, 523 (1999)).

B

ARS has pointed to the absence of evidence that it regarded

Eldridge as substantially limited in the major life activity of

working. It contends, inter alia, that he cannot show that ARS

regarded his disability as precluding him from employment in an

 

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9

ARS argues that, by making the claim that ARS regarded him as

disabled, Eldridge has effectively conceded that he is not

disabled, since it is required that the employer harbor the

mistaken belief that the employee is disabled. The court will

assume that Eldridge is bringing these claims in the alternative.

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entire class of jobs.9 Because ARS will not have the burden of

proof at trial on Eldridge’s ADA claim, it can obtain summary

judgment by pointing the court to the absence of evidence to

support an essential element of the claim. See Celotex Corp., 477

U.S. at 325. Eldridge must go beyond his pleadings and designate

specific facts showing there is a genuine issue for trial. See id.

at 324; Little, 37 F.3d at 1075. Summary judgment is mandatory

where the nonmoving party fails to meet this burden. Little, 37

F.3d at 1076. An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.

Anderson, 477 U.S. at 248. Eldridge’s failure to produce proof as

to any essential element renders all other facts immaterial.

Edgar, 2002 WL 318331, at *4 (citing Celotex Corp., 477 U.S. at

323).

Eldridge maintains that ARS regarded him as disabled because

it withdrew its reasonable accommodation offer. He contends that,

in the May 21, 2003 meeting with Parson, Polk, and Johnson, after

ARS informed him there were no other positions available or any

alternative work, Eldridge told them that Dr. Haenke had said he

could continue to work as a plumber, provided he had the assistance

of a helper. Parson later advised Eldridge that ARS would furnish

 

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10Eldridge relies on Rodriguez v. ConAgra Grocery Products Co.,

436 F.3d 468 (5th Cir. 2006), contending that the present case and

Rodriguez are similar. This suggests that he is relying on the

first prong.

Eldridge’s reliance on Rodriguez, however, is misplaced

because it is factually distinguishable. In Rodriguez a plaintiff

who suffered from Type II diabetes was rejected for employment as

not medically qualified after he failed a medical test that the

employer interpreted as showing his diabetes was uncontrolled. Id.

at 472. In response to an interrogatory, the employer stated that

the plaintiff was not qualified for any other positions at the

plant, including positions for which he would have been qualified

with a reasonable accommodation. Id. at 477. In the instant case,

Eldridge’s evidence, viewed favorably to him, would support the

finding that ARS regarded him as incapable of performing the job of

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a full-time helper, provided he was paid by commission and the

helper’s pay was taken from the commissions. Eldridge agreed to

this arrangement. Within a few days, however, Parson told Eldridge

that he could not continue to work until ARS corporate knew more

about his disability, and he needed to return his truck to the

shop. In July 2003 Johnson informed Eldridge that ARS was not

going to accommodate his disability because it felt it was a

hardship. ARS eventually offered Eldridge $5,000 to help him with

the transition.

Eldridge has failed to adduce evidence that would permit a

reasonable trier of fact to find that ARS regarded him as disabled.

Although Eldridge does not explicitly identify the specific prong

of the “regarded as” test on which he relies, it appears that he is

asserting that he has an impairment that is not substantially

limiting but that ARS perceived as constituting a substantially

limiting impairment.10 He does not allege that he has an impairment

 

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Service Technician or of plumber and that it was unwilling to

accommodate his disability because it felt that doing so imposed a

hardship. But the evidence would not support the finding that ARS

perceived him to be unqualified based on his medical condition for

any ARS jobs, even those that he could perform with a reasonable

accommodation.

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that is substantially limiting only because of the attitudes of

others toward such an impairment. And he does not contend that he

has no impairment at all. See Pegram v. Honeywell, Inc., 361 F.3d

272, 287 (5th Cir. 2004) (noting that plaintiff did not claim that

he had no impairment at all but was regarded by employer as having

substantially limiting impairment because it was undisputed that

his back injury was an impairment).

To establish that ARS regarded him as disabled under the first

prong of the test——i.e., that he has an impairment that is not

substantially limiting but that ARS perceived as constituting a

substantially limiting impairment——Eldridge must show that ARS

regarded him “as substantially limited in his ability to work by

finding that [his] impairment foreclose[d] his ability to perform

a class of jobs or a broad range of jobs.” Id. (“[T]o survive

summary judgment, an employee must show that an employer regarded

the employee as substantially limited in his ability to work by

finding that the employee’s impairment forecloses his ability to

perform a class of jobs or a broad range of jobs.”); see also,

e.g., Collins v. Saia Motor Freight Lines, Inc., 144 Fed. Appx.

368, 371 (5th Cir. 2005) (unpublished opinion) (“Where, as here,

 

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11Polk’s statement to Eldridge in December 2002 that ARS had

no available sedentary or light duty jobs that could accommodate

the restrictions that Eldridge’s doctor had imposed is not to the

contrary or sufficient to raise a genuine issue of material fact.

That statement was made based on restrictions imposed before

Eldridge underwent surgery and physical therapy and his doctor

cleared him to return to work.

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the plaintiff alleges that working is the life activity in which he

is limited, he must demonstrate that the perception of disability

would limit him from a broad class of jobs, defined as ‘jobs

utilizing similar training, knowledge, skills or abilities, within

that geographical area . . . .’” (omission in original) (quoting

Bridges, 92 F.3d at 334)). Eldridge has not carried this burden.

At most the record would permit the reasonable finding that

ARS believed that Eldridge was under medical restrictions on

lifting, kneeling, stooping, bending, or working on his knees for

an extended period of time that prevented him from performing the

job of Service Technician or of plumber. But “an employer’s

‘belie[fs] that [an employee] is incapable of performing a

particular job,’ without more, is insufficient to establish an

impairment that substantially limits the employee’s ability to

work.” Pegram, 361 F.3d at 287 (alterations in original) (quoting

Foreman v. Babcock & Wilcox, 117 F.3d 800, 806 (5th Cir. 1997)).

Eldridge has not presented evidence that would permit a reasonable

finding that ARS’s statement that there were no other positions

available or any alternative work was based on a perception that he

was incapable of performing those positions or work.11 And even if

 

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the court assumes that ARS regarded him as incapable of performing

the job classification of pipelayer, plumber, pipefitter, or

steamfitter, for the reasons the court has already explained, this

is not a “class of jobs” within the meaning of the ADA.

Because Eldridge has failed to introduce evidence that would

permit a reasonable trier of fact to find that ARS regarded his

disability as precluding him from employment in an entire class of

jobs, he cannot establish that he is disabled under the “regarded

as” prong of the ADA. Being disabled is the sine qua non of an ADA

claim. Lacking that required element, he cannot recover for ADA

discrimination, including failure to provide a reasonable

accommodation.

ARS is entitled to summary judgment dismissing Eldridge’s ADA

claim because a reasonable trier of fact could not find that he is

a qualified individual with a disability, either on the basis that

he is disabled or that ARS regarded him as disabled.

IV

ARS next moves for summary judgment dismissing Eldridge’s

retaliation claim, contending he cannot meet the requirements of a

prima facie case because he voluntarily resigned from employment at

ARS and he cannot establish that but for the filing of his claim

for workers’ compensation benefits, his employment would not have

been terminated.

 

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A

Texas law follows a type of burden-shifting method for

determining whether Eldridge is entitled to prevail on a workers’

compensation retaliation claim. See Anderson v. Corrugated Servs.,

Inc., 2001 WL 585760, at *2 (N.D. Tex. May 24, 2001) (Fitzwater,

J.) (citing Terry v. S. Floral Co., 927 S.W.2d 254, 257 (Tex. App.

1996, no writ)). Initially, Eldridge has the burden of

establishing a causal link between his participation in the

protected activity, e.g., filing a workers’ compensation claim, and

ARS’s alleged retaliatory action, i.e., terminating his employment.

See Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222, 227 (Tex.

App. 2004, no pet.) (citations omitted). “This causal connection

is an element of the employee’s prima facie case, and may be

established by direct or circumstantial evidence.” Terry, 927

S.W.2d at 257. Eldridge need not show that he was discharged

solely because he filed a workers’ compensation claim, but he must

demonstrate that filing the claim was at least a determining factor

in his discharge. The causal link that Eldridge “must establish at

the prima facie stage consists merely of establishing the

historical facts that the employer was aware of the protected

activity and that the employee was subsequently terminated.”

Anderson, 2001 WL 585760, at *3.

Once Eldridge establishes this link, ARS has the burden of

rebutting the alleged discrimination by showing it had a legitimate

 

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reason for terminating his employment. See id. at *2. If ARS

meets this obligation, then to survive summary judgment, Eldridge

must produce controverting evidence of ARS’s retaliatory motive.

Specifically, he must show that he would not have been discharged

but for his assertion of a workers’ compensation claim. At the

summary judgment stage, Eldridge need only present evidence that

raises a genuine issue of material fact. Id.

B

In this case, ARS disputes at a threshold level Eldridge’s

assertion that his employment was terminated. This issue is hotly

contested in the briefing. The court will assume arguendo that

Eldridge has adduced sufficient evidence for a reasonable trier of

fact to find that he was constructively discharged and that he has

established the historical facts that ARS was aware of his workers’

compensation claim and later terminated his employment.

The court will also raise sua sponte that ARS has produced

evidence of a legitimate reason for terminating his employment.

“In Texas, an employer is permitted to terminate an employee who

sustains a job-related injury if it ultimately appears that, due to

the nature of the injury, the employee can no longer perform the

essential functions of his position.” Burfield v. Brown, Moore &

Flint, Inc., 51 F.3d 583, 590 (5th Cir. 1995) (per curiam)

(addressing § 451.001 claim). Although ARS does not unmistakably

rely on the following evidence in response to Eldridge’s workers’

 

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12ARS contends in the introduction to its opening brief that

it “had legitimate, nondiscriminatory, and nonpretextual reasons

for all of its actions that were unrelated to Plaintiff’s claim for

workers’ compensation benefits.” D. Br. 3. It did not, however,

in the relevant part of its brief make clear that it was relying on

this evidence to establish with respect to his retaliation claim

that it had a legitimate reason for its decision. See id. at 15-

17. The evidence concerning ARS’s legitimate, nondiscriminatory

reason for its actions is cited only in support of summary judgment

concerning Eldridge’s ADA claim. See id. at 14-15. Moreover, in

ARS’s reply brief, it does not argue that it has adduced a

legitimate reason in the context of Eldridge’s retaliation claim.

See D. Reply. Br. 16. Although in its final reply brief (the court

permitted Eldridge to file a surreply and ARS to file a final

reply) ARS reiterated that it had legitimate, nondiscriminatory,

and non-pretextual reasons for its actions that were unrelated to

his claim for workers’ compensation benefits, see D. Final Reply

Br. 1, this assertion is not sufficient of itself to cure the

briefing defect. Accordingly, the court will treat this argument

as one that it has raised sua sponte and will afford Eldridge an

opportunity to oppose this basis for granting summary judgment.

- 26 -

compensation retaliation claim——because it maintains that it did

not discharge him——it contends in opposition to his ADA claim that

it had a legitimate reason for its decisions: he was not qualified

to perform the essential functions of the Service Technician

position.12 ARS points to evidence that an essential function of

the Service Technician position is the ability to lift up to 100

pounds. Eldridge had a 50-pound lifting limitation, however, and

he could not perform the position without a helper to lift for him.

On May 21, 2003 Dr. Haenke released Eldridge to return to work with

permanent restrictions. These included limiting his time on his

knees and not being required to lift over 50 pounds on a regular

basis. Dr. Haenke also completed a Texas Workers’ Compensation

Commission Work Status Report that included a Functional Capacity

 

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- 27 -

Equivalent. He opined that Eldridge was qualified to perform light

duty work, including occasional lifting of 13 pounds, frequent

lifting of seven pounds, and no constant lifting. These

restrictions precluded Eldridge from performing an essential

function of the Service Technician position. 

This court can grant summary judgment sua sponte, provided it

gives Eldridge adequate notice. See, e.g., Arkwright-Boston Mfrs.

Mut. Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 445 (5th Cir.

1991) (“[D]istrict courts can definitely grant summary judgment sua

sponte, upon proper notice to the adverse party.”). Accordingly,

the court raises on its own that ARS has met its burden of

rebutting the alleged retaliation by showing it had a legitimate

reason for terminating Eldridge’s employment: that he could not

perform the essential functions of the Service Technician position.

Subject to Eldridge’s right to challenge this conclusion, the court

holds that ARS has satisfied its burden by proffering evidence that

it had a legitimate reason for its decision. Eldridge may oppose

this basis for granting summary judgment by following the procedure

set forth infra at § V.

C

The final question under the burden-shifting paradigm is

whether Eldridge has adduced evidence that would permit a

reasonable trier of fact to find that ARS’s proffered reason——that

he could not perform the essential functions of the Service

 

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13See, e.g., D. Br. 3 (“[T]here is not causal connection

between Plaintiff’s voluntary resignation and his claim for

workers’ compensation benefits nearly a year earlier.”).

- 28 -

Technician position——is pretextual. Because ARS will not have the

burden at trial on this component of Eldridge’s claim, it can

obtain summary judgment by pointing the court to the absence of

evidence to support it. See Celotex Corp., 477 U.S. at 325.

Because it has done so here,13 Eldridge must go beyond his pleadings

and designate specific facts showing there is a genuine issue for

trial. See id. at 324; Little, 37 F.3d at 1075. Summary judgment

is mandatory where the nonmoving party fails to meet this burden.

Little, 37 F.3d at 1076. An issue is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party. Anderson, 477 U.S. at 248. 

Apart from discussing generally the legal standards that apply

to a retaliation claim and to adjudicating a summary judgment

motion, see P. Br. 19-21, Eldridge’s entire opposition argument is

contained in these two sentences:

In the instant case, the fact is that Eldridge

filed a workers’ compensation claim, and while

he was on workers’ compensation, ARS

arbitrarily terminated Eldridge without

explanation, withdrawing his reasonable

accommodation. This should be sufficient to

send this issue to trial.

Id. at 21. As ARS points out in its reply brief, the assertion in

is not supported by citation to any factual basis. See D. Reply

Br. 16. 

 

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- 29 -

N.D. Tex. Civ. R. 56.5(c) provides that “[a] party whose . . .

response is accompanied by an appendix must include in its brief

citations to each page of the appendix that supports each assertion

that the party makes concerning the summary judgment evidence.”

This court is not required to comb the record in search of a

genuine issue of material fact. See Doddy v. Oxy USA, Inc., 101

F.3d 448, 463 (5th Cir. 1996) (“Rule 56 does not impose a duty on

the district court to sift through the record in search of evidence

to support a party’s opposition to summary judgment.”). To satisfy

his burden under Celotex, Eldridge must designate specific facts

that show there is a genuine issue for trial, e.g., that would

enable a reasonable trier of fact to find that he could perform the

Service Technician position. Because Eldridge has not cited

summary judgment evidence and instead relies on the assertions of

his brief, he “is relegated to [his] unsworn pleadings, which do

not constitute summary judgment evidence.” Bookman v. Shubzda, 945

F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo

Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir.

1991)). “Unsworn pleadings, memoranda, or the like are not, of

course, competent summary judgment evidence.” Larry v. White, 929

F.2d 206, 211 n.12 (5th Cir. 1991). Conclusory assertions, made

without any citation to evidence, are insufficient to withstand

summary judgment. See, e.g., Ramsey v. Henderson, 286 F.3d 264,

269 (5th Cir. 2002).

 

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Moreover, the court’s review of the record corroborates that

a reasonable jury could not find that ARS retaliated against

Eldridge for filing a workers’ compensation claim. Viewing the

summary judgment evidence favorably to Eldridge and drawing all

reasonable inferences in his favor, a reasonable trier of fact

could find that Eldridge filed a workers’ compensation claim on

October 21, 2002 and began receiving medical care in response. In

a December 18, 2002 letter, ARS approved workers’ compensation

leave beginning December 16, 2002 and ending when Eldridge was

released by his treating physician. Eldridge underwent surgery, a

period of recuperation and physical therapy, and returned to work.

It was not until September 2003, almost eleven months after he

filed his claim, and after he had undergone surgery, post-operative

care, and rehabilitation that ARS discharged him (assuming arguendo

that it did). A reasonable jury could not find from this evidence

that ARS retaliated against Eldridge for filing the workers’

compensation claim. 

V

Accordingly, to prevent summary judgment on his retaliation

claim, within 20 days of the date this memorandum opinion and order

is filed, Eldridge must file a response that demonstrates that the

claim should not be dismissed. After considering the response, the

court will either dismiss the claim on the basis set forth in this

memorandum opinion and order or invite ARS to file a response. If

 

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- 31 -

Eldridge opts not to respond, the court will enter a final judgment

in accordance with this memorandum opinion and order.

* * *

ARS’s February 1, 2006 motion for summary judgment is granted.

Eldridge is granted 20 days to file the response addressed supra at

§ V.

SO ORDERED.

July 19, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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