Orr v. City of Tyler, Texas

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No. 6:24-cv-00344
Ronald Orr,
Plaintiff,
v.
City of Tyler, Texas,
Defendant.
O R D E R
Plaintiff sued defendant for alleged violations of the Ameri-
cans with Disabilities Act (ADA), the Family and Medical Leave
Act (FMLA), and the Texas Labor Code. Doc. 1 at 5–7. The case
was referred to a magistrate judge. Doc. 17. Defendant moved for
summary judgment. Doc. 20. The magistrate judge issued a re-
port recommending that the court grant that motion. Doc. 32 at
32. Plaintiff timely filed written objections.1 Doc. 36.
The court reviews the objected-to portions of a magistrate
judge’s report and recommendation de novo. 28 U.S.C.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). However, “objections
must specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by the
district court.” Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th
Cir. Unit B 1982) (en banc), overruled on other grounds by Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
Furthermore, a party’s entitlement to de novo review does not en-
title it to raise arguments that were not presented to the magis-
trate judge without a compelling reason. See Cupit v. Whitley, 28
F.3d 532, 535 & n.5 (5th Cir. 1994). When there have been no
timely objections to a report, or the objections are improper, “the
1 Plaintiff initially filed 13 pages of objections on February 17, 2026, the
objection deadline. Doc. 34. That same day, the magistrate judge struck plain-
tiff ’s objections as noncompliant with the eight-page limit in Local Rule CV-
72(c) and instructed plaintiff to re-file compliant objections within five days.
Doc. 35. Plaintiff refiled his objections on February 19, 2026. Doc. 36.
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court need only satisfy itself that there is no clear error on the face
of the record.” Fed. R. Civ. P. 72(b), advisory committee’s notes
to 1983 amendment.
I. Objection No. 1
Plaintiff first objects to the report’s finding that plaintiff was
not a “qualified individual.” Doc. 36 at 1. Specifically, he argues
that the report failed to apply the proper legal standard for identi-
fying a job’s essential functions. Id. Plaintiff also argues that the
record contains evidence that he could perform his job with ac-
commodations. Id. at 3–4.
A. Essential functions
The ADA defines a qualified individual as someone “who,
with or without reasonable accommodation, can perform the es-
sential functions of” a job. 42 U.S.C. § 12111(8). “[C]onsidera-
tion shall be given to the employer’s judgment as to what func-
tions of a job are essential, and if an employer has prepared a writ-
ten description before advertising or interviewing applicants for
the job, this description shall be considered evidence of the essen-
tial functions of the job.” Id. “Essential functions” means a posi-
tion’s “fundamental job duties” but “does not include the mar-
ginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). “Evi-
dence of whether a particular function is essential includes, but is
not limited to,” the “time spent on the job performing the func-
tion” and the “consequences of not requiring the incumbent to
perform the function.” Id. § 1630.2(n)(3)(iii)–(iv). “The text of
the ADA and its regulations require [courts] to give greatest
weight to the employer’s judgment factor, though [courts] must
evaluate the employer’s words alongside its policies and prac-
tices.” Weber v. BNSF Ry. Co., 989 F.3d 320, 325 (5th Cir. 2021)
(cleaned up).
Applying this standard, the report explained that defendant’s
description of plaintiff’s position “lists the essential functions of
the position to include mowing and other groundskeeping; emer-
gency response; lifting, carrying, pushing, and pulling up to 50
pounds for up to 2 hours daily; and other duties as assigned.” Doc.
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32 at 13. The report further explained that plaintiff “acknowl-
edges” that the description states his “main responsibilities” but
concluded that plaintiff established a genuine issue of material
fact “as to whether groundskeeping and operating a zero-turn
mower and jackhammer” are essential functions. Id. at 13–14.
Nonetheless, the report concluded that the position included
functions that plaintiff agreed were essential. Id. at 14.
Plaintiff objects that what he actually did was different from
the job description. Doc. 36 at 3. He further contends that he per-
formed his assigned work without incident. Id. Those arguments
do not show that the report incorrectly articulated the standard
for determining which job functions were essential. Nor do they
show that the report erred in relying upon plaintiff’s own admis-
sions about what functions were his main responsibilities or es-
sential to his job. Indeed, in his opposition brief, plaintiff con-
cedes that “his main responsibilities were to maintain the airport
equipment along with the other duties listed in his job descrip-
tion.” Doc. 21 at 3. Of the functions the City deems essential,
plaintiff produced contrary evidence regarding only two:
groundskeeping and using a jackhammer. See id. at 3, 12, 19. More-
over, although plaintiff claims that he performed his assigned work
without incident, he concedes that defendant attempted to only
assign him work within his restrictions. Id. at 4–6. He also con-
cedes that the record contains evidence that such attempts caused
problems for other employees and triggered complaints. Id. at 7.
Plaintiff therefore identifies no error in the report’s articula-
tion or application of the proper legal standard for determining a
job’s essential functions. In addition, despite Dr. Blue’s report
and plaintiff’s limitations, plaintiff does not explain how either
factors into the essential-function analysis. See Doc. 36 at 3. Thus,
the report’s essential-function analysis supports the conclusion
that “emergency response and lifting, carrying, pushing, and pull-
ing up to 50 pounds for up to 2 hours daily are essential functions
of” plaintiff’s former position. Doc. 32 at 14.
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B. Evidence of performance with accommodations
Plaintiff also objects that he could perform his job with accom-
modations. Doc. 36 at 3–4. He argues that the report erroneously
accepted that accommodations would omit essential functions
and that the report impermissibly construes evidence against him.
Id. at 4. In support of this argument, he points to post-termination
work history and his physician’s report. Id.
Reasonable accommodations include “[m]odifications or ad-
justments to the work environment, or to the manner or circum-
stances under which the position held . . . is customarily per-
formed, that enable an individual with a disability who is qualified
to perform the essential functions of that position.” 29 C.F.R.
§ 1630.2(o)(ii). However, reassigning essential functions to an-
other employee or requiring another employee “to substitute for
the portions of the job that the disabled individual cannot per-
form” are not reasonable accommodations. Heffern v. Willis-
Knighton Med. Ctr., 129 F.3d 607, 1997 WL 680830, at *4 (5th Cir.
1997) (per curiam) (unpublished table decision); Burch v. City of
Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999). Put another way,
“[t]he ADA does not require an employer ‘to reallocate essential
functions’ to accommodate an employee with a disability.”
Credeur v. La. ex rel. Off. of Att’y Gen., 860 F.3d 785, 795 (5th Cir.
2017) (quoting 29 C.F.R. § 1630, app. at 399). At the summary-
judgment stage, factual controversies are resolved in favor of the
nonmovant “only when there is an actual controversy, that is,
when both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(per curiam).
As an initial matter, plaintiff’s post-termination employment
history is irrelevant to whether plaintiff was a qualified individual.
See Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 418
(5th Cir. 2017) (“[T]he question is whether he was qualified at the
time of his termination.” (emphasis added)); Gonzalez v. United
Parcel Serv., Inc., No. 5:15-cv-00986, 2018 WL 4699274, at *10
(W.D. Tex. Sep. 28, 2018) (“The question here is not whether
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Gonzalez was ever qualified for his position . . .”), aff’d 777 F.
App’x 735, 736, 738 (5th Cir. 2019) (per curiam) (unpublished)
(disregarding post-termination medical treatment as “not al-
ter[ing] whether [the plaintiff ] was qualified for the job at the time
of his termination” (cleaned up)). Thus, the report properly dis-
regarded that evidence.
The report also did not err in its treatment of other evidence
regarding plaintiff’s requested accommodations. Plaintiff re-
quested his physician’s recommended accommodations, which
would limit plaintiff “to activities that did not require heavy lift-
ing, carrying, pushing, or pulling with his right arm or strenuous
or continuous use of the right arm.” Doc. 32 at 15. Plaintiff further
proposed that he could seek help from another employee if he en-
countered a job he could not do alone. Id. Plaintiff does not show
that any of those findings are incorrect. Moreover, as noted above,
the essential functions of plaintiff’s job included “emergency re-
sponse and lifting, carrying, pushing, and pulling up to 50 pounds
for up to 2 hours daily.” Id. at 14. Based on those findings, the
report concluded that plaintiff’s proposed accommodations were
not reasonable accommodations as a matter of law. Id. at 15–17.
In addition, the fact that defendant gave plaintiff accommoda-
tions that the ADA does not require does not mean that defendant
must continue to give those accommodations. See, e.g., Harmon v.
Collier, 158 F.4th 595, 612 (5th Cir. 2025) (discussing cases involv-
ing individualized accommodations); Wilburn v. Lucent Techs.,
Inc., No. 3:98-cv-002581, 2000 WL 1772670, at *5 (N.D. Tex.
Nov. 30, 2000). That is especially true when the accommodations
reallocate or relieve an employee of essential functions. Burch, 174
F.3d at 621; Credeur, 860 F.3d at 795. Thus, considering the re-
port’s finding that plaintiff’s proposed accommodations were un-
reasonable, the report did not err in supporting the above propo-
sition by citing Magnant v. Panelmatic Texas, Inc., No. 4:05-cv-
00135, 2006 WL 2434475 (S.D. Tex. Aug. 22, 2006). Contra Doc.
36 at 4.
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Plaintiff also contends that the report effectively created a re-
quirement for a disabled individual to be “100% healed.” Doc. 36
at 4. Considering the foregoing, the court is unpersuaded that the
report created such a requirement. Therefore, the court is also
unpersuaded that the report wrongly concluded that plaintiff
failed to identify a reasonable accommodation. See Doc. 32 at 17.
Thus, plaintiff’s first objection is overruled.
II. Objection No. 2
Plaintiff’s second objection is that the report improperly re-
solved the credibility and weight of plaintiff’s physician’s opinion
by accepting defendant’s direct-threat defense. Doc. 36 at 5. This
objection, however, ignores the report’s findings as to that de-
fense. In his response brief, plaintiff made no arguments about his
physician’s credibility or the weight of the physician’s opinion
when responding to defendant’s direct-threat defense. See Doc.
21 at 27–28 (arguing only that the record shows that any direct
threat “could be eliminated through accommodation”). The re-
port concluded that the only issue in dispute regarding the de-
fense was whether the physician’s suggested accommodations
were reasonable. Doc. 36 at 19–20. As explained above, they were
not. Thus, plaintiff’s second objection is overruled.
III. Objection No. 3
Plaintiff’s third objection is that the record contains no evi-
dence that his requested accommodations would have created an
undue hardship. Doc. 36 at 6. He also objects that “Steen re-
quested Jentes draft the ‘undue hardship’ email without providing
ADA regulatory standards” and that no evidence exists “that
Jentes had any experience regarding the ADA.” Id. Although de-
fendant and the report relied on the Jentes email, the report ex-
plained that the record as a whole showed that “Orr’s preferred
accommodations required other employees to take on the essen-
tial functions of his job.” Doc. 32 at 22. That is “an undue hard-
ship in and of itself.” Id. (quoting Pegues v. Miss. State Veterans
Home, 736 F. App’x 473, 477 (5th Cir. 2018) (per curiam)
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(unpublished)). Plaintiff does not show that the report erred in
those findings. His third objection is overruled.
IV. Objection No. 4
Plaintiff’s fourth objection is that the evidence in the record
as a whole shows a triable issue of fact as to whether his termina-
tion was pretextual. Doc. 36 at 6–7. The report, however, explains
that plaintiff’s response brief argues a failure-to-promote claim,
which he did not raise in his complaint and cannot raise for the
first time in response to a motion for summary judgment. Doc. 32
at 23–24. Moreover, the report noted that plaintiff failed to even
address his ADA retaliation claim in his response brief. Id. at 24.
Thus, whether because plaintiff abandoned that claim or because
he failed to point to summary judgment evidence in support of
that claim, the report concluded that defendant is entitled to sum-
mary judgment on plaintiff’s ADA retaliation claim. Id. Plaintiff’s
objection does not address this analysis and is therefore overruled.
V. Objection No. 5
Plaintiff’s fifth objection is that the report improperly dis-
missed damages. Doc. 36 at 7–8. His objection ignores that the
report did not address whether he is entitled to damages because
defendant established that it is entitled to summary judgment on
all of plaintiff’s claims and defendant’s defenses. Doc. 32 at 31–
32. And insofar as plaintiff suggests that the termination is “inde-
pendently actionable” because it deprived plaintiff of an income,
plaintiff cites no statutes or caselaw supporting such a proposi-
tion. See Doc. 36 at 7–8. He also did not bring such a claim in his
complaint. Doc. 1 at 5–8. Plaintiff’s fifth objection is therefore
overruled.
VI. Conclusion
Having reviewed the objected-to portions of the report de
novo and being satisfied that there is no error, the court overrules
plaintiff’s objections and accepts the report’s findings and recom-
mendations. Defendant’s motion for summary judgment (Doc.
20) is granted except as to defendant’s request for summary judg-
ment on damages. See Wilson v. Birnberg, 667 F.3d 591, 596 (5th
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Cir. 2012) (explaining that when “claims fail on the merits, there
can be no damages.”). This action is dismissed with prejudice.
Any pending motions are denied as moot.
So ordered by the court on March 4, 2026.
J. CAM PB EL L BA RK ER
United States District Judge
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