Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—S.D. Tex.: Disability discrimination and retaliation claims against construction materials company rejected, (Apr 25, 2025)

By George Basharis, J.D.

A Texas federal court grants summary judgment to Vulcan Materials Company, finding the plaintiff’s claims time-barred and lacking sufficient evidence.

The U.S. District Court for the Southern District of Texas has granted summary judgment in favor of Vulcan Materials Company in a disability discrimination and retaliation lawsuit, dismissing the case in its entirety. The court found that many of the former equipment operator’s claims were filed outside the statute of limitations, and that for the timely claims, he failed to establish he was disabled when the alleged discriminatory actions occurred and could not prove a causal connection between protected activities and adverse employment actions (Scott v. Vulcan Materials Company, No. 4:23-cv-01380 (S.D. Tex. Apr. 22, 2025)).

Vulcan Materials. The employment dispute stemmed from the plaintiff’s alleged constructive discharge from Vulcan Materials Company, a major producer of aggregates-based construction materials. The plaintiff began working for Vulcan as an equipment operator in August 2019 at the company’s Huntsville, Texas location. In this role, he was responsible for loading trucks with material and performing general maintenance duties.

Scales clerk. In June 2020, the plaintiff transitioned to a scales clerk position and was transferred to Vulcan’s Montgomery, Texas plant. As a scales clerk, his responsibilities included taking phone calls from customers, coordinating between dispatch and road crews, accepting payments, and preparing paperwork not required of equipment operators.

Scheduled shoulder surgery. The case timeline reveals a sequence of events beginning on May 18, 2021, when the plaintiff notified Vulcan’s human resources department that he was scheduled for shoulder surgery and requested leave under the FMLA. Vulcan approved his FMLA request starting June 23, 2021, the day of his surgery.

Medical leave and position change. Although the plaintiff initially requested three to four weeks of leave for recovery, he returned to the plant just two weeks later with his right arm in a sling. The following day, his supervisor and a human resources representative informed him that his scales clerk position at the Montgomery plant had been eliminated due to the implementation of a remote ticketing system.

Rather than terminating his employment, Vulcan reassigned him to his previous equipment operator position. During the same meeting, his supervisor informed him that he would need to return to FMLA leave until he was no longer in the sling, because he could not perform his job duties as an equipment operator while still using the sling.

Return to work and EEOC charge. The plaintiff returned to the Montgomery plant on September 20, 2021, after his doctor released him to return to work without restriction. On April 26, 2022, he filed a Charge of Discrimination with the EEOC, citing race and disability discrimination as well as retaliation.

Lawsuit. The lawsuit, filed in April 2023, claimed disability discrimination and retaliation under Chapter 21 of the Texas Labor Code (TCHRA). The plaintiff asserted that the alleged retaliation and discriminatory work environment forced his constructive discharge on July 12, 2023.

Vulcan moved for summary judgment on multiple grounds: that the plaintiff’s claims were time-barred, that he failed to establish a prima facie case for either claim, that the company had legitimate reasons for reassigning him, and that the plaintiff could not prove Vulcan’s reasons were pretextual.

Statute of limitations. The court first addressed the timing of the plaintiff’s claims. Under the TCHRA, complainants must file a charge with the Texas Workforce Commission or EEOC within 180 days of an alleged unlawful employment practice. The plaintiff filed his charge on April 26, 2022, meaning any allegations predating October 28, 2021, would fall outside the statute of limitations.

The plaintiff argued that his claims qualified for the continuing violation exception, which allows courts to consider actions outside the 180-day window when plaintiffs can show an “organized scheme leading to and including a present violation.” However, the court noted that the U.S. Supreme Court in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), established that “the continuing violation doctrine does not apply to discrimination and/or retaliation claims,” only to hostile work environment claims. Because the plaintiff did not allege a hostile work environment claim, the court ruled that the continuing violation exception did not apply, and claims predating October 28, 2021, were time-barred.

Disability discrimination claim. For the remaining timely claims, the court examined whether the plaintiff could establish a prima facie case of disability discrimination, requiring evidence that: (1) he had a disability or was regarded as disabled, (2) he was qualified for the job, and (3) he was subject to an adverse employment decision because of his disability.

Regarding the first element, the TCHRA defines “disability” as “a mental or physical impairment that substantially limits at least one major life activity,” which includes lifting. The plaintiff testified he was unable to lift more than 10 pounds directly after his shoulder surgery but received “full medical release” from his doctor when he returned to work in September 2021.

The court found the plaintiff's situation “strikingly similar” to a Fifth Circuit case where summary judgment was granted because the plaintiff was not disabled at the time of the adverse employment action. Because the plaintiff had been medically cleared without restrictions when the alleged discriminatory actions occurred after October 28, 2021, the court concluded he failed to establish that he was disabled at the relevant time.

Retaliation. The plaintiff's retaliation claim required showing: (1) he engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal link existed between the protected activity and the adverse action.

For the first element, the plaintiff claimed taking FMLA leave in June 2021 constituted protected activity. However, the court determined that “taking of FMLA leave is not a protected activity within the meaning of the TCHRA,” as Section 21.055 specifically protects activities such as opposing discriminatory practices, filing charges or complaints, or participating in investigations or hearings.

While the court acknowledged the plaintiff may have engaged in protected activity by filing his discrimination charge or lawsuit, it noted that these actions occurred after the alleged adverse employment action (his “demotion” to equipment operator). Because the protected activities came after the adverse action, the plaintiff could not establish the necessary causal connection for a retaliation claim. Based on these findings, the court granted Vulcan’s motion for summary judgment in its entirety. The case was dismissed with prejudice.

The case is No. 4:23-cv-01380.

Judge: Hanen, A.

Attorneys: Alfonso Kennard, Jr. (Law Offices of Alfonso Kennard, Jr.) for Matthew Scott. Amber Michelle Rogers (Hunton Andrews Kurth) for Vulcan Materials Co.

Companies: Vulcan Materials Co.

Cases: DisabilityDiscrimination Discrimination Retaliation Procedure TexasNews