no. 05-11-00583-cv - 5th Court of Appeals

Transcription

ACCEPTED
225EFJ016610050
FIFTH COURT OF APPEALS
DALLAS, TEXAS
11 November 23 P6:22
Lisa Matz
CLERK
NO. 05-11-00583-CV
________________________________________________________________________
IN THE COURT OF APPEALS FOR THE
FIFTH DISTRICT OF TEXAS
AT DALLAS
________________________________________________________________________
SUNSHINE JESPERSEN,
Appellant,
v.
SWEETWATER RANCH APARTMENTS
and CNC INVESTMENTS, LTD, LLP,
Appellees.
_______________________________________________________________________
From the 14th Judicial District Court of Dallas County, Texas
The Honorable Eric Moyé, Presiding
Trial Court No. 09-02799-A
________________________________________________________________________
APPELLEES’ BRIEF
________________________________________________________________________
J. Richard Hammett
State Bar No. 24001054
jrichard.hammett@bakermckenzie.com
Scott M. Nelson
scott.nelson@bakermckenzie.com
Celina Ramirez Joachim
celina.joachim@bakermckenzie.com
BAKER & McKENZIE LLP
Pennzoil Place, South Tower
711 Louisiana, Suite 3400
Houston, TX 77002-2746
Telephone No. +1 713 427 5000
Facsimile No. +1 713 427 5099
ATTORNEYS FOR APPELLEES
No Oral Argument Is Requested
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE ....................................................................................... xvi
STATEMENT REGARDING ORAL ARGUMENT ....................................................xvii
ISSUES PRESENTED ...................................................................................................xvii
STATEMENT OF FACTS................................................................................................. 1
A.
The Parties and Key Players......................................................................... 1
B.
Appellees’ Non-Discrimination Policies...................................................... 2
C.
Leasing Consultant Job Duties..................................................................... 2
D.
Jespersen’s Lease ......................................................................................... 2
E.
Appellees Give Jespersen Two Days Off Per Week and Allow
Medical Leave .............................................................................................. 3
F.
Jespersen’s New Lease Terms...................................................................... 4
G.
No Reinstatement Because No Job Was Available and Jespersen
Could Not Perform the Essential Functions of Her Job............................... 4
H.
Jespersen Moves Out and Bounces Her Rent Check ................................... 5
I.
Jespersen Did Not Seek Employment for a Period of Time ........................ 7
J.
Administrative Proceedings ......................................................................... 8
K.
Course of Proceedings.................................................................................. 8
SUMMARY OF THE ARGUMENT............................................................................... 11
STANDARD OF REVIEW.............................................................................................. 14
ARGUMENT.................................................................................................................... 16
A.
Jespersen’s Discrimination Claims Fail as a Matter of Law...................... 16
1.
Jespersen Fails to Adduce Direct Evidence of
Discrimination or Discriminatory Animus .......................... 16
-i-
TABLE OF CONTENTS
(continued)
Page
2.
B.
C.
Jespersen Cannot Survive the McDonnell Douglas
Burden Shifting Framework................................................. 18
a.
Jespersen Fails to Establish a Prima Facie Case
on Her Discrimination Claims Because She
Was Not Qualified for Her Position.......................... 19
b.
Jespersen Offers No Evidence that Others Were
Treated More Favorably............................................ 22
c.
Jespersen Has No Evidence She Was Disabled
Under Texas Law ...................................................... 23
d.
Jespersen Fails to Rebut Appellees’ Legitimate,
Non-Discriminatory Reasons.................................... 25
The District Court Properly Entered Summary Judgment on
Jespersen’s Property Code Allegations Because She Abandoned Her
Apartment and Failed to Pay Rent ............................................................. 28
1.
Jespersen Abandoned Her Apartment Before Locks
Were Changed...................................................................... 28
2.
Jespersen Has No Evidence to Establish Her Property
Code Allegations.................................................................. 30
3.
Jespersen Is Not Entitled to Damages.................................. 31
Jespersen’s Breach of Contract Claim Fails as a Matter of Law ............... 31
1.
Jespersen Failed to Perform Her Contractual
Obligation to Pay Rent ......................................................... 32
2.
Appellees Did Not Breach the Lease ................................... 33
a.
Appellees Did Not Improperly Increase
Jespersen’s Rent........................................................ 33
b.
Appellees Did Not Overcharge for the
Apartment Cleaning .................................................. 33
-ii-
TABLE OF CONTENTS
(continued)
Page
3.
D.
E.
c.
Appellees Did Not Improperly Charge
Jespersen for Painting ............................................... 34
d.
Appellees Did Not Improperly Exclude
Jespersen From Her Apartment ................................ 35
e.
Jespersen Cannot Establish a Covenant of Quiet
Enjoyment Claim ...................................................... 35
Jespersen Has No Damages ................................................. 37
The District Court Properly Entered Summary Judgment on
Appellees’ Counter-Claim Holding that Jespersen Breached Her
Lease........................................................................................................... 38
1.
Jespersen Did Not Pay Rent Owed Under the Lease ........... 39
2.
Jespersen Kept a Pet Dog Without Written
Authorization........................................................................ 39
3.
Jespersen Failed to Provide Proper Notice of MoveOut........................................................................................ 40
4.
Jespersen Did Not Pay Sweetwater for Fees or Charges
Owed .................................................................................... 41
The District Court Properly Awarded Appellees Attorneys’ Fees............. 42
1.
Appellees Established Attorneys’ Fees Under the
Terms of the Lease ............................................................... 43
2.
Appellees Expressly Pled for Attorneys’ Fees..................... 44
3.
Appellees Adequately Responded to All Discovery............ 45
4.
Appellees’ Disclosures Included an Expert on
Attorneys’ Fees .................................................................... 46
5.
Appellees Do Not Seek Fees Under the Texas Civil
Practice and Remedies Code................................................ 46
-iii-
TABLE OF CONTENTS
(continued)
Page
6.
F.
Sweetwater Is a Party to the Lease and Is Entitled to
Recover Fees ........................................................................ 47
The District Court Properly Awarded Appellees Costs ............................. 47
PRAYER .......................................................................................................................... 48
-iv-
TABLE OF AUTHORITIES
Page(s)
CASES
Alvarado v. Texas Rangers,
492 F.3d 605 (5th Cir. 2007) ................................................................................. 18, 19
Amato v. St. Luke’s Episcopal Hosp.,
987 F. Supp. 523 (S.D. Tex. 1997) .............................................................................. 20
Anderson v. TU Elec.,
Tex. App. LEXIS 2878 (Tex. App.—Dallas May 3, 2000, no pet.)............................ 15
Appel v. Inspire Pharms., Inc., 712 F. Supp. 2d 538 (N.D. Tex. 2010)...................... 21, 24
Appel v. Inspire Pharms., Inc., 428 Fed. App’x 279 (5th Cir. 2011).................... 20, 21, 23
Aquaduct, L.L.C. v. McElhenie,
116 S.W.3d 438 (Tex. App.—Houston [14th Dist.] 2003, no pet.)............................. 42
Ball v. Smith,
150 S.W.3d 889 (Tex. App.—Dallas 2004, no pet.).................................................... 15
Bowen v. El Paso Elec. Co.,
49 S.W.3d 902 (Tex. App.—El Paso 2001, pet. denied) ............................................. 19
Brockie v. AmeriPath, Inc.,
273 Fed. App’x. 375 (5th Cir. 2008) ........................................................................... 17
Bryant v. Compass Group USA, Inc.,
413 F.3d 471 (5th Cir. 2005) ....................................................................................... 27
Cannizzaro v. Neiman Marcus, Inc.,
979 F. Supp. 465 (N.D. Tex. 1997) ............................................................................. 25
Carmona v. Southwest Airlines Co.,
604 F.3d 848 (5th Cir. 2010) ....................................................................................... 26
Carter v. Flowers,
2011 Tex. App. LEXIS 7829 (Tex. App.—Fort Worth Sept. 29, 2011, no pet.) ........ 45
Centeq Realty, Inc. v. Siegler,
899 S.W.2d 195 (Tex. 1995)........................................................................................ 15
v
Cunningham v. Parkdale Bank,
660 S.W.2d 810 (Tex. 1983)........................................................................................ 44
D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co.,
300 S.W.3d 740 (Tex. 2009)............................................................................ 14, 16, 38
Davis v. Florida Power & Light Co.,
205 F.3d 1301 (11th Cir. 2000) ................................................................................... 20
Decker v. Lindsay,
824 S.W.2d 247 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding)................ 48
Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415 (5th Cir. 1996) (en banc) ....................................................................... 26
El Paso County v. Navarrete,
194 S.W.3d 677 (Tex. App.—El Paso 2006, pet. denied) ........................................... 18
Fasken Land & Minerals, Ltd. v. Occidental Permian Ltd.,
225 S.W.3d 577 (Tex. App.—El Paso 2005, pet. denied) ........................................... 47
Ferry v. Sackett,
Forbes, Inc. v. Granada Biosciences, Inc.,
124 S.W.3d 167 (Tex. 2003).................................................................................. 15, 30
Gallagher & Co. v. Dieterich,
Garcia v. Woman’s Hosp. of Texas,
143 F.3d 227 (5th Cir. 1998) ....................................................................................... 22
Gorman v. Wells Mfg. Corp.,
209 F. Supp. 2d 970 (S.D. Iowa 2002), aff’d, 340 F.3d 543 (8th Cir. 2003) .............. 23
Gumpert v. ABF Freight Sys.,
312 S.W.3d 237 (Tex. App.—Dallas 2010)................................................................. 47
Haas v. ADVO Sys., Inc.,
168 F.3d 732 (5th Cir. 1999) ....................................................................................... 16
Hertzberg v. Austin Diagnostic Clinic Ass’n, P.A.,
2009 Tex. App. LEXIS 7149 (Tex. App.—Austin 2009, no pet. h.)........................... 47
vi
Hoffmann-LaRoche, Inc. v. Zeltwanger,
144 S.W.3d 438 (Tex. 2004)........................................................................................ 18
Hou-Tex, Inc. v. Landmark Graphics,
26 S.W.3d 103 (Tex. App.—Houston [14th Dist.] 2000, no pet.)............................... 16
Intercontinental Group P'ship v. KB Home Lone Star L.P.,
295 S.W.3d 650 (Tex. 2009)............................................................................ 43, 46, 48
Janssen Pharmaceutica, Inc. v. Martinez,
296 S.W.3d 634 (Tex. App.—El Paso 2009)............................................................... 26
Jarvis v. Rocanville Corp.,
298 S.W.3d 305 (Tex. App.—Dallas 2009, pet. denied)............................................. 42
LaCoparra v. Pergament Home Ctrs., Inc.,
982 F. Supp. 213 (S.D.N.Y. 1997)............................................................................... 23
Lucas v. Ericsson, Inc.,
1998 U.S. Dist. LEXIS 10760 (N.D. Tex. July 13, 1998) ........................................... 24
Madison v. Williamson,
241 S.W.3d 145 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)......................... 47
Marsaglia v. UTEP,
22 S.W.3d 1 (Tex. App.—El Paso 1999, pet. denied) ................................................. 15
Martin v. Bayland Inc.,
403 F. Supp. 2d 578 (S.D. Tex. 2005) ......................................................................... 17
Mayberry v. Vought Aircraft Co.,
55 F.3d 1086 (5th Cir. 1995) ....................................................................................... 26
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).............................................................................................. passim
McIntyre v. Ramirez,
109 S.W.3d 741 (Tex. 2003)........................................................................................ 29
Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997)........................................................................................ 15
Metroplex Glass Ctr., Inc. v. Vantage Props., Inc.,
646 S.W.2d 263 (Tex. App.—Dallas 1983, writ ref’d n.r.e.) ...................................... 36
vii
Mooney v. Aramco Servs. Co.,
54 F.3d 1207 (5th Cir. 1995) ................................................................................. 16, 17
Myan Mgmt. Group, L.L.C. v. Adam Sparks Family Revocable Trust,
Nawas v. R & S Vending,
920 S.W.2d 734 (Tex. App.—Houston [1st Dist.] 1996, no writ)............................... 45
Newberry v. East Texas State Univ.,
161 F.3d 276 (5th Cir. 1998) ....................................................................................... 25
O’Brien v. Walgreen Co.,
2010 U.S. Dist. LEXIS 90815 (N.D. Tex. Aug. 31, 2010).......................................... 25
Pegasus Energy Group v. Cheyenne Petroleum Co.,
3 S.W.3d 112 (Tex. App.—Corpus Christi 1999, pet. denied).................................... 43
Pinnacle Anesthesia Consultants, P.A. v. Fisher,
309 S.W.3d 93 (Tex. App.—Dallas 2009, pet. denied)............................................... 16
Powers v. USF Holland, Inc.,
2010 U.S. Dist. LEXIS 49109 (N.D. Ind. May 13, 2010) ........................................... 27
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000)..................................................................................................... 19
Ridge Oil Co. Inc. v. Guinn Invs., Inc.,
148 S.W.3d 143 (Tex. 2004)........................................................................................ 42
Roark v. Stallworth Oil & Gas, Inc.,
813 S.W.2d 492 (Tex. 1991)........................................................................................ 35
Ryland Group v. Hood,
924 S.W.2d 120 (Tex. 1996)........................................................................................ 15
Salazar v. Recreational Sports & Imps. Dallas, Inc.,
2005 U.S. Dist. LEXIS 17707 (N.D. Tex. Aug. 22, 2005).......................................... 20
San Saba Energy, L.P. v. Crawford,
171 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2005, no pet.)............................. 35
Sandstad v. CB Richard Ellis, Inc.,
309 F.3d 893 (5th Cir. 2002) ................................................................................ passim
viii
Septimus v. Univ. of Houston,
399 F.3d 601 (5th Cir. 2005) ....................................................................................... 26
Serednyj v. Beverly Healthcare, LLC,
656 F.3d 540 (7th Cir. 2011) ....................................................................................... 24
Shackelford v. Deloitte & Touche, LLP,
190 F.3d 398 (5th Cir. 1999) ....................................................................................... 27
Shook v. Walden,
304 S.W.3d 910 (Tex. App.—Austin 2010, no pet.) ................................................... 45
Smith v. Tilton,
3 S.W.3d 77 (Tex. App.—Dallas 1999, no pet.).......................................................... 44
Southwell v. Univ. of the Incarnate Word,
974 S.W.2d 351 (Tex. App.—San Antonio 1998, pet. denied) ............................. 32, 38
St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993)..................................................................................................... 19
Stout v. Baxter Healthcare Corp.,
282 F.3d 856 (5th Cir. 2002) ....................................................................................... 22
Texas Division-Tranter, Inc. v. Carrozza,
876 S.W.2d 312 (Tex. 1994)........................................................................................ 17
Tony Gullo Motors v. Chapa,
212 S.W.3d 299 (Tex. 2006)........................................................................................ 44
Trico Techs. Corp. v. Montiel,
949 S.W.2d 308 (Tex. 1997)........................................................................................ 27
Turco v. Hoechst Celanese Chem. Group,
101 F.3d 1090 (5th Cir. 1996) ..................................................................................... 24
Urbano v. Continental Airlines, Inc.,
138 F.3d 204 (5th Cir. 1998) ....................................................................................... 22
Valence Operating Co. v. Dorsett,
164 S.W.3d 656 (Tex. 2005)........................................................................................ 14
Villarreal v. J.E. Merit Constructors, Inc.,
895 F. Supp. 149 (S.D. Tex. 1995) ........................................................................ 23, 24
ix
Wayne v. A.V.A. Vending, Inc.,
52 S.W.3d 412 (Tex. App.—Corpus Christi 2001, pet. denied).................................. 46
Willis v. Donnelly,
199 S.W. 262 (Tex. 2006)............................................................................................ 38
STATUTES AND OTHER AUTHORITIES
ADA Amendments Act of 2008 ........................................................................................ 25
EEOC Disability Discrimination, http://www.eeoc.gov/laws/types/disability.cfm,
(last visited Nov. 23, 2010).......................................................................................... 23
EEOC Fact Sheet, http://www.eeoc.gov/policy/docs/fmlaada.html,
(last visited Nov. 23, 2010) ......................................................................................... 23
O’CONNOR’S TEXAS CAUSES OF ACTION 1348 (2011) ..................................................... 43
TEX. R. APP. P. 33.............................................................................................................. 16
TEX. R. APP. P. 38.1(e) ...................................................................................................... xii
TEX. CIV. PRAC. & REM. CODE § 38.001 .......................................................................... 46
Texas Commission on Human Rights Act, TEX. LAB. CODE § 21.001 ............................ 18
Texas Commission on Human Rights Act, TEX. LAB. CODE § 21.051 ............................. xi
TEX. PROP. CODE § 92.001 ................................................................................................ 29
TEX. PROP. CODE § 92.061 ................................................................................................ 36
TEX. PROP. CODE § 92.0081 ............................................................................. xi, 29, 30, 31
TEX. R. CIV. P. 166a.................................................................................................... 15, 16
TEX. R. CIV. P.194 ............................................................................................................ 45
x
STATEMENT OF THE CASE
Nature of the Case:
This appeal involves Plaintiff Sunshine Jespersen’s
(“Jespersen”) claims of pregnancy and disability discrimination
under the Texas Commission on Human Rights Act
(“TCHRA”) at the Texas Labor Code Section 21 et seq., claim
under the Section 92.0081 of the Texas Property Code, and
common law breach of contract claim filed against Appellees
Sweetwater Ranch Apartments (“Sweetwater”) and CNC
Investments, Ltd., LLP (“CNC”). (I C.R. at 20-26).1 This
appeal also involves Appellees’ common law breach of contract
counter-claim against Jespersen. (I C.R. at 39).
Course of Proceedings: After receiving briefing and hearing oral argument from both
parties, the trial court denied Jespersen’s Motion for Partial
Summary Judgment (“Partial MSJ”), denied Jespersen’s No
Evidence Motion for Summary Judgment on Affirmative
Defenses and Counter-Claim (“No Evidence Motion”), and
granted Appellees’ Motion for Summary Judgment. (V C.R. at
1329). The trial court thereafter received briefing and heard
oral argument on Appellees’ Opposed Request for Assessment
of Damages, Attorneys’ Fees, and Costs. (V C.R. at 1330-39,
1429-37; III R.R. at 1-24).
Disposition:
The trial court entered final judgment against Jespersen and in
favor of Appellees on all of Jespersen’s claims and on
Appellees’ breach of contract counter-claim. (V C.R. at 1329).
The trial court ordered that Jespersen pay Appellees: (A)
$3,421.38 as damages for her breaches of contract; (B)
$9,698.83 in attorneys’ fees and $248.20 in costs for the time
period before July 9, 2009; (C) $11,324.20 for attorneys’ fees
and $7,781.25 in costs for the time period after July 9, 2009;
(D) $565.23 in prejudgment interest; and (E) postjudgment
interest to be calculated at the time of payment. (V C.R. at
1438).
1
The record is cited herein with the volume number and clerk record or reporter record page numbers (for
example, I C.R. at 20-26).
xi
STATEMENT REGARDING ORAL ARGUMENT
Appellees do not believe oral argument is necessary and believe that the briefing
submitted to the Court sufficiently presents the issues in this case. Appellees believe that
the district court properly held that there are no genuine issues of material fact and that all
issues may be determined as a matter of law. Appellees also believe that the controlling
law is well established and adequately presented in the briefing. Further, other than her
own conclusory statement requesting oral argument in her Appellant’s Brief, Jespersen
makes no specific statement regarding how oral argument would aid the Court’s
decisional process as required in Texas Rule of Appellate Procedure 38.1(e). Appellees
therefore request that the Court deny oral argument in this matter. However, if the Court
determines that it would like to hear oral argument, Appellees do not waive their right to
such argument.
ISSUES PRESENTED
1.
Whether the District Court properly entered summary judgment in favor of
Appellees.
2.
Whether the District Court properly awarded costs and attorneys’ fees in
favor of Appellees.
xii
STATEMENT OF FACTS
Appellees submit their own statement as follows:
A.
The Parties and Key Players.
1.
Sweetwater is an apartment complex in Richardson, Texas with over three
hundred units contained in several three-story buildings. (I C.R. at 130; 267). CNC is a
property management company that provides on-site management and staff to
Sweetwater and other apartment communities. (I C.R. at 281).
2.
Jespersen worked as a Leasing Consultant for Sweetwater for less than 12
weeks, from February 29, 2008 to approximately May 20, 2008. (I C.R. at 127; 134; 138;
286; 295). She lived at Sweetwater from March through July 2008. (I C.R. at 134; 138).
3.
During Jespersen’s employment, Sweetwater was short-staffed. (I C.R. at
128-30; 195-96).
Appellees provided staffing assistance by temporarily assigning
employees from CNC or other CNC-managed properties to work at Sweetwater. (I C.R.
at 128-30; 195-96; 216; 217-18).
For instance, Sarah McMillan, a CNC corporate
Marketing Manager, filled in at Sweetwater to help with various property management
and leasing functions at Sweetwater during and after Jespersen’s employment. (I C.R. at
128-30; 216-18). Both Jespersen and McMillan were pregnant at that time. (I C.R. at
129, 132; 217).
4.
In May 2008, while the Property Manager position at Sweetwater was
vacant, Jespersen reported to Pam Lindsey, Regional Supervisor, and Darla Miles,
Regional Vice President. (I C.R. at 128-29). Lynda Goldstein was the Human Resources
Director for CNC during Jespersen’s employment with Sweetwater. (I C.R. at 294).
1
5.
Shortly after Jespersen stopped working in May 2008, Tobi Beck started
working as the Assistant Manager at Sweetwater. (I C.R. at 193-95). Pam White started
working as the Property Manager at Sweetwater on July 14, 2008. (I. C.R. at 267).
B.
Appellees’ Non-Discrimination Policies.
6.
CNC maintains a policy prohibiting discrimination, which it distributes to
property employees through its Employee Handbook (“Handbook”). (I C.R. at 295; 31617).
Jespersen received a copy of the Handbook around the day she started her
employment as a Leasing Consultant at Sweetwater. (I C.R. at 131; 149).
C.
Leasing Consultant Job Duties.
7.
As a Leasing Consultant, Jespersen’s primary job requirement was to lease
apartments, which required showing apartment units and Sweetwater amenities and
helping prospective residents with their lease paperwork. (I C.R. at 130; 203).
8.
The day she started her employment, Jespersen received a job description
that listed the job duties of a Leasing Consultant. (I C.R. at 131; 151-55; 159). The Job
Description lists required physical demands such as “constant” walking and often
climbing, and provides that Leasing Consultants “inspect units to ensure readiness,”
“shop other properties,” and “physically inspect the property.” (I C.R. at 151-55).
9.
As a Leasing Consultant, Jespersen and other employees were required to
and did work overtime. (I C.R. at 130; 269; 297).
D.
Jespersen’s Lease.
10.
On or about March 10, 2008, Jespersen entered into an Apartment Lease
Contract (the “Lease”) with Sweetwater for an apartment rental. (I C.R. at 134-35; 161-
2
83). Under the terms of the Lease, the market rental rate for the apartment was $956.00
per month. (I C.R. at 161, ¶ 6). Jespersen, however, received deductions of $157 per
month for a prorated concession and $159.80 per month for an employee discount. (I
C.R. at 161; 167). With these deductions, Jespersen’s rent was $639.20 per month, plus
$37 a month for utilities. (I C.R. at 161, ¶ 6, ¶ 10; 167).
E.
Appellees Give Jespersen Two Days Off Per Week and Allow Medical Leave.
11.
About six weeks into her employment, around April 14, 2008, Jespersen
provided Appellees a doctor’s note that indicated that she needed two days off per week.
(I C.R. at 132; 185). In response, Appellees allowed Jespersen two days off per week. (I
C.R. at 132; 297-98).
12.
Around mid-May 2008, Jespersen told the Regional Supervisor, Pam
Lindsey, that she was quitting her job because it was too stressful. (I C.R. at 228-29).
Lindsey initiated termination paperwork to that effect, but before the termination
paperwork was completed, Jespersen changed her mind about quitting and indicated that
she, instead, wanted time off. (I C.R. at 300; 309-10; 319). Jespersen stopped working
May 20, 2008. (I C.R. at 134).
13.
Jespersen had not been employed long enough to be eligible for paid sick
leave, vacation time, or Family Medical Leave Act leave. (I C.R. at 133-34; 295).
14.
Appellees repeatedly informed Jespersen that she could be eligible for
reinstatement if her position was still available and if she provided a doctor’s note
releasing her to perform her essential job duties. (I C.R. at 245; 298; 302). A release was
required of all persons returning to work from medical leave. (III C.R. at 763-64).
3
F.
Jespersen’s New Lease Terms.
15.
Jespersen’s last day worked was May 20, 2008 (I C.R. at 134). Then,
around May 29, 2008, Sweetwater Assistant Manager Tobi Beck wrote Jespersen and
informed her that “as of June 1, 2008, your market rent on apartment …will be $956.00
per month, due to the fact of employment separation.” (I C.R. at 197-98; 213). Beck’s
letter also informed Jespersen that she owed a balance of $225.00 for a security deposit.
(I C.R. at 213).
16.
Thereafter, because Jespersen was no longer working, pursuant to her lease
terms, Jespersen was not entitled to her employee rental discount of $159.80 per month.
(I C.R. at 136; 167; 224-25).
G.
No Reinstatement Because No Job Was Available and Jespersen Could Not
Perform the Essential Functions of Her Job.
17.
At the time Jespersen stopped working, Appellees were already in the
process of looking for Leasing Consultants as the property was short-staffed. (I C.R. at
229; 298, 304-05).
18.
Jespersen did not provide a doctor’s release until June 27, 2010. (I C.R. at
298; 321-22). By that time, job offers for the Leasing Consultant positions at Sweetwater
had already been made, and Jespersen’s position was no longer available. (I C.R. at 18790; 229; 298; 305). Goldstein checked to see if other nearby CNC-managed properties
had Leasing Consultant job openings, but none did. (I C.R. at 137-38; 187-90; 303).
19.
In addition, the doctor’s note stated that Jespersen could only do “some
walking” and could work “40 hours” per week. (I C.R. at 321-22). Based on her review
4
of the doctor’s note and of her review of the job requirements of a Leasing Consultant,
Goldstein did not believe Jespersen could perform the essential functions of a Leasing
Consultant. (I C.R. at 298; 302; 306-08).
20.
In late June 2008, Goldstein told Jespersen in a phone call (which Jespersen
recorded without Goldstein’s knowledge) that because she could not perform her
minimum job duties, they would treat Jespersen’s employment separation as a resignation
due to medical restrictions. (I C.R. at 137-38; 187-90; 298; 302; 306-08).
21.
Jespersen’s official employment separation was the week she last worked
(which was the week of May 23, 2008). (I C.R. at 134; 137-38; 285-86).
After
Jespersen’s employment separation, Sarah McMillan, who was also pregnant, continued
to fill in with leasing functions at Sweetwater. (I C.R. at 216-18).
H.
Jespersen Moves Out and Bounces Her Rent Check.
22.
About June 1, 2008, Jespersen submitted a check for $826 for June rent. (I
C.R. at 247-48). Because Jespersen owed a balance of $225 for her security deposit, this
left a balance on Jespersen’s account, so on or about June 17, Sweetwater informed
Jespersen that she owed $221.00. (I C.R. at 247; 250; 252).
23.
Around July 1, 2008, Jespersen submitted a check in the amount of $826 to
Sweetwater for her July rent and utilities. (I C.R. at 250; 297). At the time she submitted
the check, Jespersen informed Tobi Beck that there was a possibility that the check could
be returned for insufficient funds. (I C.R. at 254).
5
24.
On or about July 9, 2008, Jespersen sent an email to management stating
that “this email will serve as my thirty day notice to move out of Sweetwater Ranch.” (I
C.R. at 161; 256).
25.
Two days later, around July 11, 2008, Sweetwater employee Tobi Beck
witnessed Jespersen moving furniture and other items from Jespersen’s apartment. (I C.R.
at 275). Then on July 16, Sweetwater received notice that Jespersen’s check for July rent
was returned due to insufficient funds. (I C.R. at 275). This led Sweetwater to question
whether Jespersen had “skipped out” and abandoned her apartment. (I C.R. at 229; 268;
275-76).
26.
Therefore, Sweetwater inspected Jespersen’s apartment and confirmed that
Jespersen had removed all of her belongings from her apartment. (I C.R. at 201; 231;
268; 275). Thereafter, as required under the Lease, Sweetwater left notice for Jespersen
on the inside of her apartment’s door stating that Sweetwater would consider the
apartment abandoned unless Jespersen responded to Sweetwater within two days. (I C.R.
at 200; 229; 232; 275). Jespersen did not respond to Sweetwater’s notice within the two
days required to refute abandonment. (I C.R. at 231; 275).
27.
Then, Sweetwater inspected the apartment and learned that Jespersen had
kept a pet dog in her apartment without paying a pet deposit. (I C.R. at 135; 275-76).
Sweetwater also discovered patio damage, painting stains, and various other items that
required cleaning and repair, and assessed $300 in cleaning fees and $150 for damages
against Jespersen. (I C.R. at 140; 276; 278-79). These charges were within normal and
reasonable market rates. (I C.R. at 205-06; 276).
6
28.
On or about July 24, 2008, Jespersen came to the Sweetwater office and
asked Tobi Beck if she would hold a cable box for the cable company to pick up. (I C.R.
at 138; 254). At that time, Jespersen relinquished her apartment keys to Beck. (I C.R. at
138; 254).
Beck explained to Jespersen that the apartment had been considered
abandoned and that Jespersen was no longer entitled to access the apartment. (I C.R. at
254). Jespersen did not go to her apartment at any time on July 24 or anytime thereafter.
(I C.R. at 141).
29.
After July 24, Sweetwater changed the locks to Jespersen’s former
apartment as part of normal business procedures to prepare the unit for relet. (I C.R. at
270; 275-76).
30.
To date, Jespersen has not paid the balance of her June 2008 rent, July
through September 7, 2008 rent, amounts associated with her returned check, charges for
late rent payments, violation of the Lease’s animal/pet provisions, cleaning and damages
to the apartment, or the reletting charge for early move-out. (I C.R. at 126; 138; 206;
282). Sweetwater has not submitted Jespersen’s amounts owed to a collection agency. (I
C.R. at 126; 206).
I.
Jespersen Did Not Seek Employment for a Period of Time.
31.
Following her separation of employment at Sweetwater, Jespersen did not
seek employment while she was pregnant and wanted to stay home following the birth of
her twins on August 24, 2008.2 (I C.R. at 125; 141-42).
2
Appellees have thus presented evidence of their affirmative defense regarding Jespersen’s failure to
mitigate damages.
7
32.
Once Jespersen finally decided to apply for jobs, she received offers from
three companies. (I C.R. at 142). In April 2009, Jespersen accepted a position with
Rockwood Capital working at The Coventry, an apartment complex, until they let her go
on April 4, 2010. (I C.R. at 142). While working for Rockwood Capital, Jespersen made
more per hour and in commissions than she was eligible to receive while at Sweetwater.
(I C.R. at 142).
J.
Administrative Proceedings.
33.
On or about October 23, 2008, Jespersen filed a charge of discrimination
(“Charge”) with the Texas Workforce Commission (“TWC”), alleging sex (pregnancy)
and disability discrimination with respect to her employment at Sweetwater. (I C.R. at
258-59).
The TWC investigated the Charge and concluded that the information it
obtained did not establish a violation of the relevant statutes and dismissed the Charge on
or about July 6, 2009. (I C.R. at 261-62).
K.
Course of Proceedings.
34.
On March 10, 2009, Jespersen filed her Original Petition and Request for
Disclosures in this matter asserting only a breach of contract claim (regarding her Lease
with Sweetwater). (I C.R. at 12-17).
35.
During this time, Appellees prepared and filed their Original Answer,
responded to Jespersen’s numerous discovery requests (including her Request for
Disclosures, 72 Requests for Admission for each Defendant, 29 Requests for Production
for each Defendant, and 9 Interrogatories for each Defendant), and defended the first of
8
two depositions of Lynda Goldstein. (I C.R. at 18-19; 20-26; V C.R. at 1402; III R.R. at
8-9).
36.
From March 10, 2009 until July 9, 2009, Appellees incurred reasonable and
necessary attorneys’ fees in the amount of $29,096.50. (V C.R. at 1334; 1402). These
fees represent over 76 hours of attorney and paralegal time. (V C.R. at 1402). The time,
labor, and fees spent during this period were reasonable and necessary. (V C.R. at 1402).
During this time, Appellees also incurred $248.20 in reasonable and necessary costs,
which represents the court reporter fee for Appellees to obtain a copy of the deposition
transcript of Lynda Goldstein’s May 20, 2009 deposition. (V C.R. at 1402).
37.
On July 9, 2009, Jespersen filed her First Amended Petition and Request
for Disclosures in which she added her pregnancy discrimination claim. (I C.R. at 20-26).
On August 7, 2009, Jespersen filed her Second Amended Petition and Request for
Disclosures in which she added her Texas Property Code claim. (V C.R. at 1458).
38.
From July 9, 2009, when Jespersen amended her petition with new claims,
through the course of proceedings in the District Court, Appellees incurred reasonable
and necessary attorneys’ fees in the amount of $97,064.58. (III R.R. at 8; V C.R. at
1402). These fees represent over 238 hours of attorney and paralegal time to prepare
answers in response to the amended petitions, to prepare for and defend an additional
nine depositions which Jespersen had noticed, to respond to written discovery, take
Jespersen’s deposition, and respond to several motions associated with the Lease. (V C.R.
at 1402).
9
39.
On July 14, 2010, Jespersen filed her No Evidence Motion. (I C.R. at 63-
80). Appellees filed their Response to Plaintiff’s No Evidence Motion on August 18,
2010. (IV C.R. at 997-1026). In addition, on July 15, 2010, Jespersen filed her Partial
MSJ. (II C.R. at 332-69). Appellees filed their Response to Plaintiff’s Motion for Partial
Summary Judgment on August 18, 2010. (III C.R. at 725-761).
40.
On July 15, 2010, Appellees’ attorneys also filed their own Motion for
Summary Judgment to enforce Appellees’ rights under the Lease and establish
Appellees’ counterclaim. (V C.R. at 1402). In addition, Appellees’ attorneys had to
prepare for and argue at the cross-motions for summary judgment on August 25, 2010. (V
C.R. at 1402; II R.R. at 1-21). The time Appellees’ attorneys allocated to these matters
precluded them from working on other matters for other clients. (V C.R. at 1402-03).
Appellees’ legal services and fees during this time were reasonable and necessary for
both the breach of contract claim and the other claims. (V C.R. at 1403).
41.
Throughout this Action, Appellees’ attorneys charged reasonable rates for
the locality for similar services. (V C.R. at 1403). Appellees’ attorneys have experience
in these matters and carry a distinguished reputation for defending companies against
claims similar to those Jespersen alleged. (V C.R. at 1403). Appellees also have an
established relationship with Baker & McKenzie LLP and Appellees’ attorneys have
represented CNC for over eight years. (V C.R. at 1403). The reasonable and necessary
fees in this Action include paralegal time at the rate of $225 per hour and attorney time
ranging in rates of $350-$495 per hour. (V C.R. at 1403). The attorney rates correspond
to the respective attorney’s experience as well as to the fact that two of the attorneys are
10
Board Certified in Labor and Employment Law with the Texas Board of Legal
Specialization. (V C.R. at 1403).
42.
Of the $97,064.58 attorneys’ fees incurred by Appellees from July 9, 2009
through the District Court’s entry of final judgment, approximately 35% is allocated to
Appellees’ defense of Jespersen’s breach of the Lease claim and Appellees’ breach of
contract counterclaim. (III R.R. at 9; V C.R. at 1403). Approximately 50% is allocated to
Jespersen’s discrimination claims and 15% to her property code claim. (V C.R. at 1403).
43.
From July 9 through the District Court’s entry of final judgment, Appellees
also incurred $7,781.25 in costs associated with Jespersen’s breach of contract allegations
against Appellees and Appellees’ breach of contract counterclaim against Jespersen. (V
C.R. at 1403). These costs include costs with respect to 10 depositions and the mediation
in this Action. (V C.R. at 1403).
SUMMARY OF THE ARGUMENT
As detailed below, the undisputed evidence establishes that the district court
correctly entered summary judgment in favor of Appellees and dismissed all of
Jespersen’s claims as a matter of law. After less than three months of employment,
Jespersen “quit” her Leasing Consultant position and walked off the job. Although she
later recanted her “quit” and asked for medical leave, Jespersen had not been employed
long enough to be entitled to Family and Medical Leave Act leave or any other type of
leave.
Rather than sever all ties, and as an act of good faith, Appellees informed
Jespersen that when she was able to return to work, they would consider her for
reinstatement if her position was still available and if she provided a doctor’s release
11
allowing her to perform her essential job duties. This never occurred. Jespersen did not
provide a doctor’s release until over five weeks later, at which time Appellees had
already made offers to other persons to fill the position. What’s more, the doctor’s note
did not release Jespersen to perform the essential functions of her job, but instead
imposed limitations on both overtime and walking. As such, Human Resources Director
Lynda Goldstein did not believe that Jespersen could perform the essential functions of
her job. Appellees thus filled the position and legitimately did not reinstate Jespersen.
Jespersen’s pregnancy and disability discrimination claims fail for several
independent reasons.
Although Jespersen makes passing statements alleging direct
discrimination, she fails to present anything that could be considered direct evidence.
Indeed, Jespersen herself testified that no one ever made a negative comment about her
pregnancy, and noteworthy, Jespersen fails to cite to a single pregnancy discrimination
case in her Appellant’s Brief. Instead, Jespersen’s purported “evidence” amounts to
allegations of circumstantial evidence and must be analyzed under the burden shifting
framework of McDonnell Douglas. Jespersen, however, cannot establish a prima facie
case of discrimination under this framework, nor can she rebut Appellees’ legitimate nondiscriminatory reasons for not reinstating her.
Jespersen’s prima facie case of pregnancy and disability discrimination fails for
several reasons. First, Jespersen has no evidence that she was qualified for the position
because the uncontested doctor’s note she provided limited her from overtime and
walking job requirements. Thus, she could not perform the essential functions of her job.
Likewise, Jespersen has no evidence that Appellees treated any non-pregnant or non12
disabled employees more favorably. In fact, another pregnant woman worked alongside
Jespersen at Sweetwater and worked at Sweetwater after Jespersen left. This pregnant
employee was not discharged. Jespersen also has no evidence that she was “disabled,” or
that her physical limitations were “substantial.” Moreover, case law is clear that there is
no entitlement to accommodation for persons who are merely pregnant or who were
“regarded” as disabled.
Even if Jespersen could establish her prima facie case, she presents no evidence to
rebut Appellees’ legitimate non-discriminatory reasons for not reinstating her and thus
cannot establish pretext. Indeed, Jespersen does not even challenge nor does she present
any evidence to rebut the relevant issue – that Human Resources Director Lynda
Goldstein based her decision to not reinstate Jespersen on her belief from the job
description that Jespersen’s position required the ability to work overtime and to perform
constant walking and that Jespersen was not released to perform those job duties.
Instead, Jespersen merely argues her unsupported subjective belief that the ability to
work overtime and perform constant walking were not essential job requirements. This
cannot prove pretext. Telling, Jespersen does not even mention pretext in her Issues
Presented. Jespersen therefore fails to establish a genuine issue of material fact regarding
Appellees’ legitimate non-discriminatory employment actions, and her discrimination
claims fail as a matter of law.
Jespersen’s “lock-out” claim under the Texas Property Code also fails as a matter
of law. Under the terms of the Lease, Jespersen abandoned her apartment. It was not
until after Sweetwater re-took possession of the apartment that it changed her locks.
13
Jespersen does not dispute any facts that establish abandonment under the Lease.
Jespersen’s claim therefore has no legal basis because at the time of the alleged “lockout,” Jespersen was not even a tenant under the terms of the Texas Property Code.
The district court also properly dismissed Jespersen’s breach of contract claim and
granted summary judgment to Sweetwater on the breach of contract counterclaim.
Foremost, it is undisputed that Jespersen failed to pay rent to Sweetwater. Although
Jespersen argues that she maintained a credit on her account, her calculations are
incorrect as she includes double credits and discounts that are not authorized anywhere in
the Lease. Further, the evidence establishes that it was Jespersen, and not Appellees, who
breached the Lease.
In addition to Jespersen defaulting on her rent payments, she
committed several other lease violations and failed to pay other amounts owed. What’s
more, Jespersen alleges contract damages of costs assessed against her, but which she
never paid to Appellees. The summary judgment to Appellees on this claim should be
affirmed.
Last, the district court did not abuse its discretion in awarding Appellees
attorneys’ fees and costs. The Court should therefore affirm the district court’s entry of
summary judgment in favor of Appellees, hold that all of Jespersen’s claims fail as a
matter of law, and hold that Jespersen breached the Lease as a matter of law.
STANDARD OF REVIEW
A court of appeals reviews the district court’s “grant of summary judgment de
novo.” D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009)
(citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). In this
14
case, the district court granted Appellees’ Motion for Summary Judgment filed under
Texas Rule of Civil Procedure 166a(i) and 166a(b), as well as on Appellees’
counterclaim filed under Rule 166a(a).
Texas Rule of Civil Procedure 166a(i) requires the court to grant a no evidence
summary judgment against a plaintiff who, after adequate time for discovery, fails to
produce evidence sufficient to raise a genuine material issue of fact as to each element of
his claim. Anderson v. TU Elec., Tex. App. LEXIS 2878, at *2-3 (Tex. App.—Dallas
May 3, 2000, no pet.). The mere existence of a scintilla of evidence is insufficient to
avoid summary judgment; instead, the plaintiff must produce evidence sufficient to
support a reasonable finding in his favor on each essential element of his claim. Ball v.
Smith, 150 S.W.3d 889, 893 (Tex. App.—Dallas 2004, no pet.); Merrell Dow Pharms.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). The Texas Supreme Court has held
that less “than a scintilla of evidence exists when the evidence is so weak as to do no
more than create a mere surmise or suspicion” of a fact. Forbes, Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); Marsaglia v. UTEP, 22 S.W.3d 1, 4
(Tex. App.—El Paso 1999, pet. denied).
Alternatively, under Texas Rule of Civil Procedure 166a(b), a defendant may
obtain summary judgment at any time by producing evidence negating at least one
essential element of a plaintiff’s claim, or by establishing the elements of an affirmative
defense to the claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Further, conclusory statements of fact or of law, speculation, and conjecture are not
competent summary judgment evidence. Ryland Group v. Hood, 924 S.W.2d 120, 122
15
(Tex. 1996); Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—
Houston [14th Dist.] 2000, no pet.). Under Texas Rule of Civil Procedure 166a(a), the
court may grant summary judgment on a defendant’s counterclaim when the defendant
establishes that there is no genuine issue of material fact on each element of his claim.
Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 100 (Tex. App.—Dallas
2009, pet. denied). Summary judgment may be granted on the issue of liability alone
even with a genuine issue on the amount of damages. TEX. R. CIV. P. 166a(a).
“[I]ssues not expressly presented to the trial court by written motion, answer or
other response shall not be considered on appeal as grounds for reversal.” D.R. HortonTex., 300 S.W.3d at 743 (citing TEX. R. CIV. P. 166a(c); see also TEX. R. APP. P. 33(a)(1)
(requiring that the record show that a claim was raised in the district court in order to
present it for appellate review)).
ARGUMENT
A.
Jespersen’s Discrimination Claims Fail as a Matter of Law.
1.
Jespersen Fails to Adduce Direct Evidence of Discrimination or
Discriminatory Animus.
In stark contrast to her groundless assertions, Jespersen has failed to present any
direct evidence of discrimination. “Direct evidence is evidence that, if believed, proves
the fact of discriminatory animus without inference or presumption.” Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (citing Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1217 (5th Cir. 1995)); see also Haas v. ADVO Sys., Inc., 168 F.3d
732, 733-34 (5th Cir. 1999) (statements regarding concern about the plaintiff’s age were
16
not direct evidence of age discrimination where company instead decided to hire a person
with whom they had better chemistry); Brockie v. AmeriPath, Inc., 273 Fed. App’x 375,
377 (5th Cir. 2008) (statement that plaintiff was a “streetwalker” was not direct evidence
of sex discrimination). Therefore, Appellant bears the burden of proving discriminatory
“animus” by Appellees. Mooney, 54 F.3d at 1218. An example of direct evidence would
be a policy that forbade all women from working as soon as they became pregnant,
because it demonstrates animus toward all pregnant women. “Statements that courts
have found to be direct evidence of discrimination have tended to be insults or slurs
against the protected group.” Martin v. Bayland Inc., 403 F. Supp. 2d 578, 582 (S.D. Tex.
2005). No such direct evidence exists here.
Jespersen admits that no one ever made a negative comment about her pregnancy
during her employment with Sweetwater. (III C.R. at 909). Further, the other pregnant
employee who worked at Sweetwater, Sarah McMillan, also testified that no negative
comments were made about her pregnancy and, in fact, Appellees threw her a baby
shower and allowed her six or so weeks of maternity leave after which she returned to
work, even though she was not eligible for FMLA leave. (I C.R. at 219). This hardly
evidences discriminatory animus toward pregnant persons.
Jespersen incorrectly concludes through her own subjective belief and without a
scintilla of evidence that Appellees refused to let Jespersen work because of pregnancy.
(II C.R. at 354; Sunshine Jespersen’s Appellant’s Brief, hereafter App. Brief, at 13).
Jespersen’s subjective belief is not competent summary judgment evidence. Texas
Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (providing that
17
“subjective beliefs are no more than conclusions and are not competent summary
judgment evidence”). Rather than establishing discriminatory animus, the undisputed
evidence establishes that Appellees did not reinstate Jespersen because the Human
Resources Director believed Jespersen could not perform the essential functions of her
job, and because there was no open position available. (I C.R. at 187-90; 298; 302; 30608; 322; III C.R. at 763-64). “If an inference is required for the evidence to be probative
as to Appellees’ discriminatory animus in firing Appellant, the evidence is circumstantial,
not direct.” Sandstad, 309 F.3d at 897-98. Because Jespersen has failed to provide any
evidence to satisfy her burden of establishing discriminatory animus, this Court should
affirm the denial of Jespersen’s Partial MSJ and affirm summary judgment in favor of
Appellees. To do otherwise would eviscerate Jespersen’s well established burden and
allow all persons in protected categories (which is everyone) to claim discrimination
whenever they lose their job.
2.
Jespersen Cannot Survive the McDonnell Douglas Burden Shifting
Framework.
Because Jespersen has no direct evidence of discrimination, the McDonnell
Douglas burden shifting framework, as set forth by the Supreme Court and adopted by
Texas courts to analyze discrimination claims under federal statutes and the Texas
Commission on Human Rights Act (“TCRHA”), applies. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973); Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir.
2007); Sandstad, 309 F.3d at 896; Hoffmann-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d
438, 445 (Tex. 2004); El Paso County v. Navarrete, 194 S.W.3d 677, 683 (Tex. App.—
18
El Paso 2006, pet. denied). Under the McDonnell Douglas framework, Jespersen must
establish a prima facie case of discrimination by providing evidence that: (1) she is a
member of a protected class (i.e. pregnant or disabled); (2) she was qualified for the
position; (3) she suffered an adverse employment action; and (4) others similarly situated
but outside the protected class were treated more favorably or she was replaced by
someone outside the protected group. Alvarado, 492 F.3d at 611 (sex discrimination
under Title VII); Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 908 (Tex. App.—El Paso
2001, pet. denied) (discrimination under TCHRA).
After a plaintiff establishes her prima facie case, the burden then shifts to the
employer to produce evidence that it had a legitimate, nondiscriminatory reason for its
actions. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). This
burden of production involves no credibility assessment. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 509 (1993). If the defendant articulates a nondiscriminatory reason, any
presumption of discrimination created by the prima facie case is dissolved, and the
burden shifts back to the plaintiff to provide evidence to establish that the defendant’s
proffered reason is not true but is instead a pretext for discrimination. Reeves, 530 U.S. at
142-43.
a.
Jespersen Fails to Establish a Prima Facie Case on Her
Discrimination Claims Because She Was Not Qualified for Her
Position.
Jespersen has no evidence to establish that she was qualified for her position at the
time she sought reinstatement. This is because Jespersen could not perform all the
essential functions of her job due to her walking and overtime limitations. (I C.R. at 130;
19
151-57; 203; 297); see Appel v. Inspire Pharms., Inc. (Appel II), 428 Fed. App’x 279 (5th
Cir. 2011) (holding that employee could not make a prima facie case of discrimination
when, as a result of medical complications from pregnancy, she was unqualified for her
job); Amato v. St. Luke’s Episcopal Hosp., 987 F. Supp. 523 (S.D. Tex. 1997) (holding
that the employee failed to present a prima facie case that he was an otherwise qualified
individual with a disability because he could not perform an essential function of his job);
see also Salazar v. Recreational Sports & Imps. Dallas, Inc., 2005 U.S. Dist. LEXIS
17707 (N.D. Tex. Aug. 22, 2005) (granting summary judgment to employer on
pregnancy discrimination claim because there was no prima facie case where employee
could not perform her job functions of lifting, pushing, and pulling of items over 25
pounds).
It is uncontested that Jespersen’s medical release stated that she could only do
“some” walking and could not work overtime. (I C.R. at 322). It is also uncontested that
Jespersen’s job required her to walk and show the property and apartments and work
overtime. (I C.R. at 130; 151-57; 203; 297). Further, the job description that Jespersen
signed provided that “constant” walking was a requirement. (I C.R. at 154; 157). It is
also uncontested that Jespersen did not want to work overtime and wanted to work only
20 hours per week. (III C.R. at 925; I C.R. at 187-90). Jespersen ceased being qualified
for her job when she was unable (or unwilling) to perform all the essential functions of
her job. Davis v. Florida Power & Light Co., 205 F.3d 1301, 1302 (11th Cir. 2000)
(affirming summary judgment to employer in disability discrimination case because
plaintiff was not “qualified” as he could not perform the overtime the employer required).
20
Jespersen has no evidence that she could perform the essential function of overtime, and
she does not even attempt to argue so in her Appellant’s Brief.
Further, in a case virtually identical to the one at hand, the Fifth Circuit recently
held that an employee cannot establish a prima facie case of pregnancy discrimination
when, as a result of medical complications from pregnancy, she was unqualified for her
job. Appel II, 428 Fed. App’x at 283-84; see also Appel v. Inspire Pharms., Inc. (Appel I),
712 F. Supp. 2d 538, 546 (N.D. Tex. 2010). In Appel I, the plaintiff worked in an outside
sales position which required the ability to physically call on physicians in order to
promote Inspire’s pharmaceutical products. Appel I, 712 F. Supp. 2d at 545-46. When
Appel’s doctor confined her to her home for the duration of her pregnancy, Inspire
terminated her employment because she was unable to perform her job responsibilities.
Id. at 545. The district court held, and the Fifth Circuit confirmed, that as a result of
medical complications from her pregnancy, Appel was unqualified for her job, and
therefore cannot make a prima facie showing of pregnancy discrimination. Appel II, 428
Fed. App’x at 283-84 (affirming dismissal of both pregnancy and disability claims);
Appel I, 712 F. Supp. 2d at 546. While Jespersen, like Appel, “points to certain aspects
of her job that she could continue to do, she simply does not explain how she could
perform other parts of the job that Defendant deems essential” (the way Goldstein
deemed essential constant walking and overtime) and “fails to show how she could
comply with the physical components of her job description.” Appel I, 712 F. Supp. 2d at
546. Thus, Jespersen’s prima facie case fails. Accordingly the Court should affirm the
21
denial of Jespersen’s Partial MSJ and the district court’s granting of the summary
judgment to Appellees.
b.
Jespersen Offers No Evidence that Others Were Treated More
Favorably.
Jespersen’s prima facie case also fails because she presents no evidence that any
non-pregnant person was treated more favorably.3 See Garcia v. Woman’s Hosp. of
Texas, 143 F.3d 227, 231 (5th Cir. 1998).
There is no requirement that pregnant
employees be treated more favorably than non-pregnant employees. Stout v. Baxter
Healthcare Corp., 282 F.3d 856 (5th Cir. 2002) (affirming summary judgment to
employer where the employee’s claim was simply that she should have been granted
more generous medical leave than was granted to non-pregnant employees, which was
something the Pregnancy Discrimination Act did not require). Instead, an employer is
supposed to ignore a woman’s pregnancy and “treat the employee as well as it would
have if she were not pregnant.” Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206
(5th Cir. 1998) (internal quotations and citations omitted).
Any purported
accommodations Jespersen claims she was entitled to do not establish this element
because she has no evidence that non-pregnant employees were given such
accommodations. See Urbano, 138 F.3d at 206-08 (affirming summary judgment for
employer because no evidence of pregnancy discrimination where employer’s refusal to
place pregnant employee in light duty was not discrimination with policy of only
3
In addition, McMillan, who was also pregnant, filled in for Jespersen at Sweetwater, took approved
leave after having her child, and following her maternity leave returned to work for CNC. (I C.R. at 21719).
22
transferring employees who had suffered work injuries to light-duty positions). Jespersen
has no evidence that she was treated less favorably than similarly situated employees,
when all employees, regardless of pregnancy, had to provide releases on return from sick
leave. (III C.R. at 763).
Similarly, Jespersen has no evidence that any non-disabled person was treated
more favorably. Therefore, as a result of a complete lack of evidence, Jespersen cannot
establish her prima facie pregnancy or disability discrimination cases, and summary
judgment for Appellees must be confirmed.
c.
Jespersen Has No Evidence She Was Disabled Under Texas
Law.
Courts are clear that pregnancy alone and pregnancy-related conditions are not
disabilities under the discrimination laws. Appel I, 712 F. Supp. 2d at 547-48; Villarreal
v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995); Gorman v.
Wells Mfg. Corp., 209 F. Supp. 2d 970, 976 (S.D. Iowa 2002), aff’d, 340 F.3d 543 (8th
Cir. 2003) (holding that plaintiff’s pregnancy-related nausea, vomiting, headaches, and
fatigue did not qualify as disabilities under the ADA); LaCoparra v. Pergament Home
Ctrs., Inc., 982 F. Supp. 213, 228 (S.D.N.Y. 1997) (holding that “pregnancy-related
complications usually will not qualify a woman for ADA protection” and finding no
disability where plaintiff had a history of infertility, a prior miscarriage, and spotting and
cramping). Indeed, short-term or “transitory” conditions are not considered disabilities.
EEOC: Disability Discrimination, http://www.eeoc.gov/laws/types/disability.cfm; see
also EEOC Fact Sheet, http://www.eeoc.gov/policy/docs/fmlaada.html (providing that
23
FMLA serious health conditions like pregnancy, a routine broken leg, or a hernia do not
amount to ADA disabilities) (both last visited Nov. 23, 2011). Jespersen’s conclusory
statement that “walking is a major life activity” has no relevance here; Jespersen could
walk at that time and thus that major life activity was not “substantially limited.”
Further, the Seventh Circuit Court of Appeals has recently specifically held that
pregnancy-related complications, as a short term condition, do not qualify under the ADA
as a disability. Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540 (7th Cir. 2011).
Jespersen testified that her only “disability” was her pregnancy and that she
believed she was subjected to disability discrimination “[b]ecause they would not make
reasonable accommodation for me when I was pregnant to let me work twenty hours.” (I
C.R. at 145). However, Appellees have no obligation to make such accommodations.
Turco v. Hoechst Celanese Chem. Group, 101 F.3d 1090, 1094 (5th Cir. 1996) (finding
that “an accommodation that would result in other employees having to work harder or
longer is not required under the ADA”); Lucas v. Ericsson, Inc., 1998 U.S. Dist. LEXIS
10760, at *21-22 (N.D. Tex. July 13, 1998) (finding that “the ADA does not require that
an employer reallocate essential job functions”).
Jespersen submits no evidence of
disability, other than her pregnancy and subjective belief, which is insufficient to meet
her burden of establishing she is disabled under the TCHRA. Appel II, 428 Fed. App’x at
284; Villarreal, 895 F. Supp. at 152.
Jespersen now claims, without offering evidence, that Appellees “regarded” her as
disabled. To the contrary, the summary judgment evidence establishes that Appellees did
not regard Jespersen as disabled. (I C.R. at 301). Lynda Goldstein herself did not think of
24
Jespersen as disabled nor did she ever hear anyone refer to Jespersen as disabled. (I C.R.
at 301). In any event, courts regularly dismiss duty to accommodate claims in cases
where a plaintiff claims that an employer merely “regarded” him or her as disabled, as an
employer has no duty to accommodate an employee who does not fall under the ADA.
O’Brien v. Walgreen Co., 2010 U.S. Dist. LEXIS 90815, at *15-16 (N.D. Tex. Aug. 31,
2010) (citing Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp. 465, 476 (N.D. Tex.
1997) (“[T]he duty to make a reasonable accommodation arises only when the individual
is disabled; no such duty arises when the individual is merely regarded as being disabled
as defined under the ADA.”)); see also Newberry v. East Texas State Univ., 161 F.3d
276, 280 (5th Cir. 1998) (holding that “an employer need not provide reasonable
accommodation to an employee who does not suffer from a substantially limiting
impairment merely because the employer thinks the employee has such an impairment”).
Therefore, as Jespersen has no evidence, she cannot establish a prima facie case of
disability discrimination, and the Court should affirm the district court’s summary
judgment in favor of Appellees on this claim.4
d.
Jespersen Fails to Rebut
Discriminatory Reasons.
Appellees’
Legitimate,
Non-
In her Issues Presented, Jespersen fails to present any issue to this Court regarding
the pretext portion of the McDonnell Douglas inquiry. (App. Brief at viii-ix). Jespersen
merely states that because other employees (none of whom are Leasing Consultants) at
4
Jespersen’s statements that the ADA Amendments Act of 2008 (“ADAAA”) make it easier to prove
disability claims is irrelevant because the ADAAA became effective January 1, 2009, after Jespersen’s
25
times did not have to walk constantly that Appellees’ proffered legitimate, nondiscriminatory reason must be pretextual.
It is uncontested, however, that Lynda
Goldstein based her employment decision on her belief that on any given day, Jespersen
could be required to perform “constant walking” and that Jespersen was not released to
do so. (I C.R. at 302; 306-07). Here, even if Lynda Goldstein was incorrect in her
assessment, that does not satisfy Appellant’s burden of producing evidence to establish
pretext. Sandstad, 309 F.3d at 899 (“The issue at the pretext stage is whether [the
defendant’s] reason, even if incorrect, was the real reason for [the plaintiff’s]
termination.”); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995)
(“The question is not whether an employer made an erroneous decision; it is whether the
decision was made with discriminatory motive.”).
Beyond conjecture and subjective belief, Jespersen has no evidence that this
reason is pretextual. Janssen Pharmaceutica, Inc. v. Martinez, 296 S.W.3d 634, 640-41
(Tex. App.—El Paso 2009) (reversing jury verdict because no evidence that pregnancy
and national origin were motivating factors in decision to terminate plaintiff and no
evidence that the proffered reason for termination was false); Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc) (explaining that subjective
belief is not enough to overcome summary judgment); see also Septimus v. Univ. of
Houston, 399 F.3d 601 (5th Cir. 2005) (summary judgment was properly granted in the
employer’s favor on gender discrimination claim because the employee had not raised a
employment separation from Appellees, and does not apply here because it is not retroactive. Carmona v.
Southwest Airlines Co., 604 F.3d 848, 856-57 (5th Cir. 2010).
26
genuine issue of material fact that the employers’ proffered reasons for denying her a
promotion were pretexts for discrimination). Thus, merely disputing the amount of
walking that may or may not be required for Jespersen to adequately perform her job is
not evidence of pretext. Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th
Cir. 1999); Sandstad, 309 F.3d at 899.
Appellees were not, as Jespersen claims, using a “100% healed policy;” rather,
Goldstein performed an individual assessment based on Jespersen’s job position and
doctor’s note, and believed that Jespersen could not perform her essential duties.5 (App.
Brief at 23-24; I C.R. at 306-08). Whether another person could have to come a different
conclusion as to Jespersen’s abilities to perform her duties is completely irrelevant; all
that matters here is that the assessment was individualized and non-discriminatory, which
it was.6 Employment discrimination laws are not intended to be a vehicle for judicial
second-guessing of employment decisions, nor are they intended to transform the courts
into personnel managers. Bryant v. Compass Group USA, Inc., 413 F.3d 471, 478 (5th
Cir. 2005). Because Jespersen has no evidence of pretext, Appellees are entitled to an
5
In addition, the Powers v. USF Holland, Inc. case that Jespersen cites as authority for her 100% healed
argument, an unpublished Northern District of Indiana case, supports affirming summary judgment in
favor of Appellees. The Powers court reconsidered the opinion that Jespersen cites granted summary
judgment in favor of the employer, stating, “[t]o be protected by the ADA and to challenge Defendant's
failure to accommodate him as a result of the alleged 100% healed policy, Plaintiff must be a qualified
individual with disability under the Act” (which, like Jespersen, the Powers plaintiff was not). Powers v.
USF Holland, Inc., 2010 U.S. Dist. LEXIS 49109 (N.D. Ind. May 13, 2010).
6
Under the after-acquired evidence doctrine, there are other independent reasons for Jespersen’s
termination of employment. See Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex. 1997). At her
deposition, Jespersen admitted she did not list various criminal offenses, including one offense for
misappropriation of fiduciary funds involving $10,000 of a client’s money, on her job application. (III
C.R. at 899-901; 903; IV C.R. at 1034). Jespersen’s failure to disclose her offenses on her job application
and the seriousness of those offenses render her ineligible for reemployment. (I C.R. at 282).
27
affirmation of the summary judgment granted by the district court on Jespersen’s
pregnancy and disability discrimination claims.
B.
The District Court Properly Entered Summary Judgment on Jespersen’s
Property Code Allegations Because She Abandoned Her Apartment and
Failed to Pay Rent.
1.
Jespersen Abandoned Her Apartment Before Locks Were Changed.
Paragraph 42 of the Lease provides:
You have abandoned the apartment when all of the following
have occurred: (1) everybody appears to have moved out in
our reasonable judgment; (2) clothes, furniture, and personal
belongings have been substantially removed in our reasonable
judgment; (3) you’ve been in default for non-payment of rent
for 5 consecutive days . . .; (4) you’ve not responded for 2
days to our notice left on the inside of the main entry door,
stating that we consider the apartment abandoned…
Surrender, abandonment, or judicial eviction ends your right
of possession for all purposes and gives us the immediate
right to: clean up, make repairs in, and relet the apartment;
determine any security deposit deductions; and remove
property left in the apartment.
(I C.R. at 166).
On July 9, 2008, Jespersen gave notice of her intent to move out of Sweetwater. (I
C.R. at 256). Two days later, on or about July 11, Sweetwater employee Tobi Beck
witnessed Jespersen moving her personal belongings out of Jespersen’s apartment. (I
C.R. at 136; 198; 254). Then, on July 16, Jespersen’s check for July rent was returned for
insufficient funds. (I C.R. at 139; 264). With this, Sweetwater inspected Jespersen’s
apartment and confirmed that Jespersen had moved all of her belongings. (I C.R. at 201;
231; 268; 275). As per the Paragraph 42 of the Lease, Sweetwater thereafter left notice
for Jespersen inside her apartment’s door stating that Sweetwater considered the
28
apartment abandoned and that Jespersen had 2 days to refute the abandonment. (I C.R. at
200; 229-232; 275). Jespersen did not respond to Sweetwater’s notice. (I C.R. at 231;
275). Thus, under the express terms of the Lease, and the uncontested facts in this case,
Jespersen abandoned her apartment and “end[ed] [her] right of possession for all
purposes.” (I C.R. at 166; 230-31). Only after Jespersen abandoned her apartment, and
turned in her keys on July 24, did Sweetwater change the locks to the apartment. (I C.R.
at 254; 270).
Presumably because she cannot refute the express terms of the Lease, Jespersen
attempts to save her claim with her conclusory argument that “the evidence demonstrates
that Jespersen did not abandon the apartment.” (App. Brief at 30). Jespersen, however,
presents no evidence to this effect and her unsubstantiated assertion cannot save her
claim. See McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003) (holding that
conclusory statements cannot create a question of fact to defeat summary judgment).
Jespersen also claims that “a thorough review of [Texas Property Code § 92.0081]
reveals that it provides no defense to a claim for violations based on a supposed
abandonment by the tenant.” (App. Brief at 30). Jespersen, however, was no longer a
“tenant” at any time applicable to her Texas Property Code claim and therefore had no
rights under Texas Property Code § 92.0081. Under the Texas Property Code, the term
“tenant” “means a person who is authorized by a lease to occupy a dwelling to the
exclusion of others and, for the purposes of Subchapters D, E, and F, who is obligated
under the lease to pay rent.” TEX. PROP. CODE § 92.001 (emphasis added). Jespersen,
though, was not authorized under the terms of the Lease to occupy the apartment.
29
Instead, as outlined above, Jespersen abandoned the apartment and “end[ed] [her] right of
possession for all purposes.” (I C.R. at 166; 268). Thus, the Court should therefore
affirm the district court’s entry of summary judgment in favor of Appellees on
Jespersen’s Texas Property Code claim.
2.
Jespersen Has No Evidence to Establish Her Property Code
Allegations.
Even if Jespersen had not abandoned her apartment, she still cannot establish a
claim under Texas Property Code § 92.0081. To establish her Property Code claim,
Jespersen must provide evidence that Appellees failed to post a written notice on the front
door of her apartment as provided under Texas Property Code § 92.0081(c). Jespersen,
however, admits that she never even went to her apartment door on or after July 24, 2008.
(I C.R. at 141). Because Sweetwater did not change the locks until after this date,
Jespersen has no knowledge of whether CNC posted notice. Jespersen therefore has no
evidence and cannot establish her claim that Appellees failed to provide proper notice
under Texas Property Code § 92.0081.
No doubt to avoid this fatal evidentiary defect, Jespersen states in her affidavit that
“I never saw any notice in my apartment or on the door that said my locks were
changed.” (II C.R. at 376). Jespersen “never saw any notice,” though because she
admittedly never went to the apartment. (I C.R. at 141).
Contrary to Jespersen’s
conclusory allegations, this statement cannot save her from summary judgment as it does
“no more than create a mere surmise or suspicion” of a fact. Forbes, 124 S.W.3d at 172.
The only other purported evidence Jespersen offers in support of her argument is that
30
Tobi Beck testified that she did not remember if she posted a notice about where
Jespersen could get a new key after changing the locks. (II C.R. at 545). But, such a
notice is irrelevant where, as here, Beck posted a notice of abandonment and Jespersen
abandoned the apartment which “end[ed] [her] right of possession for all purposes.” (I
C.R. at 166). The Court should affirm the district court’s entry of summary judgment in
Appellees’ favor on Jespersen’s Texas Property Code claim.
3.
Jespersen Is Not Entitled to Damages.
In any event, Jespersen is not entitled to recover any damages because Section
92.0081(h) requires that the court offset any damages recovered by the tenant by “any
delinquent rent or other sums for which the tenant is liable to the landlord.” TEX. PROP.
CODE § 92.0081(h). At the district court, Jespersen alleged that she is entitled to two
months’ rent plus $1,000.00, totaling $2,598.00. (II C.R. at 366; I C.R. at 161; 167
(establishing Jespersen’s rent after May 2008 at $799 per month)). Despite Jespersen’s
unsupported allegations that she “had a credit balance … when she was locked out of her
apartment,” in actuality Jespersen owes and has not paid Appellees over $3,500.00 (See
Section D.4. below; App. Brief at 35) which offsets any purported recovery of $2,598.00.
Thus, the Court should therefore affirm the district court’s entry of summary judgment on
Jespersen’s Texas Property Code.
C.
Jespersen’s Breach of Contract Claim Fails as a Matter of Law.
In order to establish a breach of contract, Jespersen must prove that: (1) Jespersen
tendered performance; (2) Sweetwater breached the lease; and (3) Jespersen suffered
damages because of the alleged breach. Myan Mgmt. Group, L.L.C. v. Adam Sparks
31
Family Revocable Trust, 292 S.W.3d 750, 754-55 (Tex. App.—Dallas 2009, no pet.);
Southwell v. Univ. of the Incarnate Word, 974 S.W.2d 351, 354-55 (Tex. App.—San
Antonio 1998, pet. denied). Jespersen cannot provide evidence regarding any of these
required elements, and the Court should affirm the denial of her Partial MSJ on this
claim.
1.
Jespersen Failed to Perform Her Contractual Obligation to Pay Rent.
Jespersen’s most basic contractual obligation under the terms of the Lease
required her to pay Sweetwater rent for her apartment. Jespersen, however, did not pay
rent for July or August 2008 (or a balance of $221 for June 2008, or the $195.06 prorated
amount for September). (I C.R. at 138; 252; 264; 275; 282). Jespersen does not dispute
this and even admits that she bounced and never paid her July 2008 rent. (I C.R. at 138).
Jespersen now argues that she maintained a credit on her account through her
brazenly incorrect chart entitled “Summary of Rent, Charges, Payments and Credits.”
(App. Brief at 8). The only reasonable reading of the Lease, however, provides that
Jespersen’s rent is calculated as follows:
Base Rent:
Minus:
Equals:
Minus:
Equals:
Plus:
Equals:
$956.00
$157 for Prorated Concession
$799
$158.80 for Preferred Employee Concession (20% of $799)
$639.20
$37 for Utilities
$676.20
Indeed, there is no evidence in the Lease or elsewhere to support Jespersen’s “credit”
calculations. (I C.R. at 161; 167).
32
Jespersen also argues that “she performed all of her obligations under the lease
until Appellees refused to allow her to work and stopped paying her wages.” (App. Brief
at 37). Jespersen’s argument is irrelevant as her contractual obligation to pay rent is in no
way contingent on her employment, and she provides no legal or factual support.
Jespersen failed to perform and pay rent, and she therefore cannot establish this essential
element of her breach of contract claim.
2.
Appellees Did Not Breach the Lease.
a.
Appellees Did Not Improperly Increase Jespersen’s Rent.
Jespersen alleges that her “rent was improperly increased to $965.00 per month
‘due to the fact of employment separation.’” (App. Brief at 37). Under the terms of the
Lease, the market rate for Jespersen’s rent was $956. (I C.R. at 161). Jespersen, however,
received a prorated concession of $157 and an employee discount of $158.80. (I C.R. at
161; 167). The employee discount was contingent “provided employment continues.” (I
C.R. at 167). With this, when Jespersen’s employment ended in May 2008, she was no
longer entitled to her employee discount and her rent was raised to $799 ($956 minus
$157 concession) plus $37 in utilities. Jespersen’s own actions evidence that she ratified
this amount as she attempted to pay it in July when she submitted a check for $826
(although that check later bounced). (I C.R. at 247; 250; 264).
b.
Appellees Did Not Overcharge for the Apartment Cleaning.
Jespersen, without evidence, claims that Appellees “overcharged Sunny Jespersen
for the cleaning of the apartment by at least $252.00.” (App. Brief at 38).
After
inspecting Jespersen’s apartment, Sweetwater assessed that four hours of cleaning were
33
needed to prepare the apartment for relet. (I C.R. at 276; 278-79). Jespersen admits that
the apartment needed to be cleaned. (I C.R. at 138-39; 141). Under the terms agreed to
by Sweetwater and Jespersen, Sweetwater charged Jespersen $75 per hour of cleaning. (I
C.R. at 278-79). Jespersen does not present any evidence that the time required to clean
the apartment was any less than four hours. The only purported evidence Jespersen
presents is the testimony that Ms. Beck guessed that pay rate of the person that actually
cleaned the apartment was $12 an hour. (App. Brief at 38 n.139). Jespersen, however,
fails to establish how this amounts to a breach of the Lease as nothing in the Lease
requires fees to be assessed at cost. Instead, the Lease merely states that the resident will
be liable for “reasonable cleaning charges,” which were agreed to at the rate of $75 per
hour. (I C.R. at 166; 278-79). Jespersen’s claim thus fails as a matter of law.
c.
Appellees Did Not Improperly Charge Jespersen for Painting.
Jespersen alleges that Appellees “improperly charged $150.00 for painting.” (App.
Brief at 38). The $150 charge, however, was not assessed solely for painting and it also
includes charges for trash and damages. (I C.R. at 247-48; 278-79). The painting charges
accounted for only $50 of the $150 total. (I C.R. at 278-79). Further, Jespersen does not
dispute that she damaged her apartment and that it needed re-painting because she
“overspray[ed]” an area of the patio with “spray paint or primer.” (I C.R. at 140).
Despite this, Jespersen presents no evidence other than her legally insufficient conclusory
opinion that the painting charge is either incorrect or unreasonable. In light of the
cleaning needed and the damages made, Sweetwater properly assessed damages in line
with the normal market rate and Jespersen fails to establish with any evidence that
34
Appellees “improperly charged” her. (I C.R. at 205-06). Jespersen’s claim therefore
fails.
d.
Appellees Did Not Improperly Exclude Jespersen From Her
Apartment.
Jespersen alleges that Appellees “prevented Jespersen from cleaning her apartment
on July 24, 2008 by locking her out; and Appellees instructed [sic] Jespersen was
instructed to leave the property and not return.” (App. Brief at 38). Jespersen again fails
to argue how this amounts to a breach of contract. In any event, her allegations parrot her
Texas Property Code claims, and just like those claims, fail because Jespersen was never
“locked out” of her apartment. Sweetwater took possession of Jespersen’s apartment
after she abandoned it under the terms of the Lease. (See Argument Section B.1. above).
After abandonment, Sweetwater had the right to exclude Jespersen.
e.
Jespersen Cannot Establish a Covenant of Quiet Enjoyment
Claim.
Jespersen passingly alleges that “Tobi Beck’s unauthorized entrance into
Jespersen’s apartment and the subsequent lockout of Sunny Jespersen are also both
violations of the covenant of quiet enjoyment, which amount to breaches of the lease
agreement.” (App. Brief at 40). Jespersen did not include this claim in her Petition on or
before the district court’s February 26, 2010 pleadings deadline, and it therefore cannot
serve as a basis to create a fact issue and save Jespersen from summary judgment. See
San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 336-37 (Tex. App.—Houston [14th
Dist.] 2005, no pet.); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494-95 (Tex.
1991). Even if her claim was proper for consideration, which it is not, claims for breach
35
of the covenant of quiet enjoyment pertain to commercial leases whereas the Lease in
question is a residential lease. See Metroplex Glass Ctr., Inc. v. Vantage Props., Inc., 646
S.W.2d 263, 264-65 (Tex. App.—Dallas 1983, writ ref’d n.r.e.).
Moreover, Texas
Property Code Section 92.061 precludes these common law landlord-tenant claims. See
TEX. PROP. CODE § 92.061. Jespersen’s claim thus fails as a matter of law.
In any event, Jespersen is wrong in her allegations. Tobi Beck was authorized to
enter the apartment as Paragraph 28 of the Lease allows Sweetwater representatives to
enter residents’ apartments in order to leave notices as well as to estimate repairs and
costs. (I C.R. at 164).
The Lease also allows representatives to leave notices of
abandonment inside residents’ apartments. (I C.R. at 166). The only requirement is that
“written notice of the entry is left in a conspicuous place in the apartment immediately
after the entry.” (I C.R. at 164). Here, Tobi Beck entered Jespersen’s apartment in order
to confirm Jespersen had moved out and to leave notice of abandonment. (I C.R. at 201;
231; 268; 275).
Jespersen’s recycled “lock-out” claim does no better.
As explained above,
Jespersen was not “locked-out” of her apartment. (See Argument Section B.1. above).
Sweetwater only changed the locks after Jespersen failed to pay rent, moved out of the
apartment, and failed to respond to Sweetwater’s notice of abandonment. (I C.R. at 275).
Jespersen’s newly and improperly asserted claim therefore fails and the Court should
affirm the district court’s entry of summary judgment in Appellees’ favor.
36
3.
Jespersen Has No Damages.
Even if Jespersen could establish that she tendered performance and that
Appellees breached the Lease, Jespersen has no evidence that any alleged breach caused
her to suffer damages. Jespersen first argues that Appellees owe her for “the charges
assessed for excessive and unnecessary cleaning ($300.00) and ($150.00); [and] the
excessive insufficient notice penalty ($641.00) . . .” (App. Brief at 39).
Although
Appellees assessed these charges against her, Jespersen never paid the amounts to
Appellees. (I C.R. at 138). Moreover, Sweetwater never submitted any of Jespersen’s
amounts owed to a collections agency. (I C.R. at 126; 206). Jespersen thus has no
evidence of any damages under the Lease.
Jespersen seeks damages for “lost wages,” “lost vendor bonuses,” “lost rent
discounts,” and “additional rent over the rent at Sweetwater Ranch after Jespersen’s
eviction.” (App. Brief at 39-40). But, these purported “damages” could not have been
caused by any alleged breach of the Lease. The Lease is not an employment agreement
and it does not provide for “lost wages” and “lost vendor bonuses.” Further, the “lost
rent discounts” Jespersen seeks are the employee discounts that were contingent on her
continued employment. As explained above, Jespersen was not entitled to an employee
rent discount after she stopped working in May 2008. (I C.R. at 167). Moreover, the
Lease states that “[s]hould a default in timely rental payment occur in accordance with
the lease agreement, the Resident(s) shall be required to pay the rent at full market rate
for that payment period.” (I C.R. at 167). Jespersen failed to pay all rental amounts
beginning in June 2008. (I C.R. at 252).
37
Likewise, Jespersen is not entitled to “additional rent over the rent at Sweetwater.”
Contrary to her statement that she was “evicted,” Jespersen provided a notice of moveout on July 9, 2008 and voluntarily moved out and abandoned her apartment days later. (I
C.R. at 256; 275). Jespersen should not be able to escape her own obligation to pay rent
while simultaneously requesting damages for amounts over such rent. In any event,
Jespersen fails to establish how any of these alleged damages were caused by some
breach of the Lease. Because Jespersen fails to establish damages, her claim fails as a
matter of law, and the Court should affirm summary judgment in favor of Appellees.
D.
The District Court Properly Entered Summary Judgment on Appellees’
Counter-Claim Holding that Jespersen Breached Her Lease.
In order to establish Appellees’ breach of contract counterclaim, Appellees must
prove that:
(1) Jespersen breached the Lease; and (2) Plaintiff’s breach caused
Sweetwater some injury.7 Southwell, 974 S.W.2d at 354-55. Jespersen breached the
Lease contract when she: (1) failed to pay rent through the termination of the Lease;
(2) kept a pet dog in her apartment without written authorization and without paying the
required pet deposit; (3) failed to provide proper notice of move-out; and (4) failed to pay
cleaning and damage charges and late payment fees. Because of Jespersen’s breaches,
Sweetwater suffered damages.
7
Several of the elements for Appellees’ breach of contract counter-claim are not in contention. It is
undisputed that the Lease is a valid contract. (I C.R. at 13; 15). Further, Sweetwater is a party to the
contract and thus a proper party to sue for breach of contract. (I C.R. at 161); see also Willis v. Donnelly,
199 S.W. 262, 271 (Tex. 2006). Sweetwater also performed its contractual obligations under the Lease as
it provided an apartment for Jespersen to rent. (I C.R. at 13; 134). Further, Jespersen failed to argue that
Sweetwater failed to perform at the district court level and has therefore waived the argument. See D.R.
Horton-Tex., 300 S.W.3d at 743.
38
1.
Jespersen Did Not Pay Rent Owed Under the Lease.
Under the terms of the Lease, Jespersen was obligated to pay rent through the date
of the Lease’s termination. (I C.R. at 161; 165). The express terms of the Lease allow
Jespersen to terminate the Lease with 60 days notice. (I C.R. at 161; 165). Because
Jespersen provided notice (albeit improper notice as discussed further below) on July 9,
2008, she was obligated to pay rent through September 7, 2008. (I C.R. at 161-162; 165).
For July and August, Jespersen was required to pay $836.00 per month for rent and
utilities. (I C.R. at 161; 167). For September, Jespersen was required to pay $195.06
(seven days’ rent, prorated). (I C.R. at 161). It is undisputed that Jespersen never made
these payments. (I C.R. at 138; 206; 282).
Although Jespersen submitted a check for $826 for July’s rent (an amount $10 less
than the required amount), this check was later returned for insufficient funds. (I C.R. at
138; 264; 268). Indeed, Jespersen testified that she never made any payments for July
rent, or any rent thereafter, other than her bounced July check. (I C.R. at 138). It is
therefore, uncontested that Jespersen owes Sweetwater for unpaid rent.
2.
Jespersen Kept a Pet Dog Without Written Authorization.
Paragraph 27 of the Lease provides:
ANIMALS. No animals . . . are allowed, even temporarily,
anywhere in the apartment or apartment community unless
we’ve so authorized in writing. If we allow an animal, you
must sign a separate animal addendum and pay an animal
deposit. . . .
. . . .
If you or any guest or occupant violates animal restrictions
(with or without your knowledge), you’ll be subject to
39
charges, damages, eviction, and other remedies provided in
this Lease Contract. . . .
(I C.R. at 163-64).
In her deposition, Jespersen admitted to having a dog in her
apartment. (I C.R. at 135). Despite the Lease’s terms, Jespersen never obtained written
authorization to keep a dog in her apartment. (I C.R. at 135). Jespersen also never signed
a separate animal addendum or paid the required animal deposit. Jespersen therefore
breached the Lease.
3.
Jespersen Failed to Provide Proper Notice of Move-Out.
Under the terms of the Lease, Jespersen was required to give “at least 60 days
written notice of termination or intent to move-out as required by paragraph 37.” (I C.R.
at 161). In addition to other requirements, Paragraph 37 provides that “[t]he advance
notice must be at least the number of days of notice required in paragraph 3 or in the
special provisions – even if the Lease Contract has become a month-to-month lease.” (I
C.R. at 165). The “[n]otices may not be given by email.” (I C.R. at 165).
Jespersen does not contest the fact that she failed to give 60 days written notice.
Instead, Jespersen argues that she could satisfy the Lease’s requirements with 30 days
notice. (App. Brief at 37-38). Jespersen contends that this is because Paragraph 10 of the
Lease allegedly “overrules the sixty-day notice.” (I C.R. at 37-38). With this, Jespersen
relies on an email she sent to Sweetwater on July 9, 2008, stating that she was providing
Sweetwater with 30 day notice of move-out. (I C.R. at 256).
Jespersen is wrong.
Paragraph 10 does not include any provision regarding
Jespersen’s contractual duty to provide notice of move-out. Instead, it simply provides
40
that the “[l]ease will be on a month to month basis; if employee is terminated she will
[sic] 3-7 days to vacate apartment.” (I C.R. at 161). The fact that the Lease was on a
“month-to-month” basis does not alter the 60 day notice requirement. This is established
in Paragraph 37 which expressly states that the number of days in Paragraph 3 (60 days)
controls “even if the Lease Contract has become a month-to-month lease.” (I C.R. at 165)
(emphasis added). Likewise, the fact that Sweetwater had the ability to require Jespersen
to vacate the apartment within 3-7 days after her termination has nothing to do with
Jespersen’s duty to provide 60 days notice. (I C.R. at 161). In any event, Jespersen did
not vacate within 3-7 days after her termination and any argument that this provision
alters the 60 day requirement, let alone imposes a 30 day requirement, is nonsensical.
Jespersen was therefore required to provide 60 days written notice, in which email notice
was not allowed. Because she failed to do this, Jespersen breached the terms of the
Lease.
4.
Jespersen Did Not Pay Sweetwater for Fees or Charges Owed.
In addition to her other breaches, Jespersen failed to pay for numerous charges
owed under the Lease. These include, without limitation:
x
x
x
x
x
$50 for Returned Check – (I C.R. at 161; 264);
$210 for Late Payment for July Rent ($60 initial late charge plus
additional $10 per day not to exceed 15 days for any single month’s rent)
– (I C.R. at 138; 161; 206);
$210 for Late Payment for August Rent – (I C.R. at 161);
$210 for Late Payment of Prorated September Rent – (I C.R. at 161);
$100 for Animal Violation – (I C.R. at 161);
41
x
x
x
x
$10 for Animal Violation Daily Charge8 – (I C.R. at 161);
$300 for Cleaning Charges – (I C.R. at 166; 278-79);
$150 for Damages / Trash Charges – (I C.R. at 162; 278-79); and
$641 for Insufficient Notice Penalty – (I C.R. at 161-62).
In addition, Jespersen failed to pay her June rent and security deposit in full and owed a
balance of $221 going into July 2008. (I C.R. at 252).
In total, Jespersen owed
Sweetwater $2,102.00, or $3,969.06 including Jespersen’s unpaid rent ($836 for each of
July and August and $195.06 for the seven days prorated in September). Even after
Sweetwater’s $450 recovery from Jespersen’s security deposit, Jespersen still owes
Sweetwater over $3,500. To date, Jespersen has not paid Sweetwater any of these
charges. (I C.R. at 138; 282). Jespersen therefore breached the terms of the Lease and
has caused Sweetwater to suffer monetary damages. The Court should thus affirm the
district court’s entry of summary judgment on Sweetwater’s breach of contract
counterclaim.
E.
The District Court Properly Awarded Appellees Attorneys’ Fees.
The standard of review for an award of attorneys’ fees is abuse of discretion.
Ridge Oil Co. Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004); Jarvis v.
Rocanville Corp., 298 S.W.3d 305, 381 (Tex. App.—Dallas 2009, pet. denied). When
reviewing the district court’s determination of attorneys’ fees, the Court must “view the
evidence in the light most favorable to the trial court’s ruling and indulge every
presumption in its favor.” Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 444 (Tex.
8
Paragraph 6 of the Lease provides a $10 per day animal charge “from the date the animal was brought
into [the] apartment until it is finally removed.” (I C.R. at 161). Because it is unknown how long
Jespersen kept her pet dog in the apartment, Appellees seek a daily charge of only $10.
42
App.—Houston [14th Dist.] 2003, no pet.). Jespersen fails to establish that the district
court abused its discretion in its award of attorneys’ fees to Appellees, and the Court
should thus affirm the district court’s award of attorneys’ fees.
1.
Appellees Established Attorneys’ Fees Under the Terms of the Lease.
Appellees sought attorneys’ fees in this case under the express terms of the Lease
Contract. See Intercontinental Group P'ship v. KB Home Lone Star L.P., 295 S.W.3d
650, 653 (Tex. 2009) (“Parties are free to contract for a fee-recovery standard either
looser or stricter than Chapter 38’s…”). Paragraph 32 of the Lease provides that “the
prevailing party may recover from the non-prevailing party attorney’s fees and all other
litigation costs. [Sweetwater] may recover attorney’s fees in connection with enforcing
our rights under this Lease Contract.” (I C.R. 164). Appellees established the factors to
recover attorneys’ fees and proved that: (1) Appellees pleaded for attorneys’ fees; (2)
Appellees complied with the conditions precedent; (3) the Lease Contract provided for an
award of attorneys’ fees; (4) a legal proceeding related to the Lease Contract was
instituted; (5) Appellees were represented by an attorney; (6) Appellees are entitled to
attorneys’ fees; and (7) reasonable and necessary attorneys’ fees were incurred. (V C.R.
1330-1428; III R.R. 4-23); see also O’CONNOR’S TEXAS CAUSES OF ACTION at 1348
(2011); Pegasus Energy Group v. Cheyenne Petroleum Co., 3 S.W.3d 112, 128-29 (Tex.
App.—Corpus Christi 1999, pet. denied) (affirming attorneys’ fees under written
contract).
Of the seven factors, Jespersen challenges only one – whether Appellees
adequately pleaded for attorneys’ fees. (App. Brief at 44). Jespersen therefore waives
43
any argument regarding any other factor. See Smith v. Tilton, 3 S.W.3d 77, 84 (Tex.
App.—Dallas 1999, no pet.) (“Points of error asserted on appeal but not briefed are
waived.”). As discussed below, Appellees did plead for attorneys’ fees and Jespersen’s
argument regarding that factor fails.
2.
Appellees Expressly Pled for Attorneys’ Fees.
On appeal, Jespersen argues that Appellees did not plead attorneys’ fees as to
Jespersen’s claim of discrimination. (App. Brief at 44).
In making her argument,
Jespersen ignores that Appellees pled in their Second Amended Answer that they “are
entitled to recover reasonable and necessary attorneys [sic] fees under the provisions of
the Apartment Lease Contract.” (I C.R. at 39). Appellees further established to the
district court that their legal services defending against Jespersen’s claims of
discrimination were intertwined with the breach of contract claims and such services
were done to advance both claims. (I C.R. at 1337; III R.R. at 9); Tony Gullo Motors v.
Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006). Jespersen does not make any argument
regarding segregation of fees and therefore waives that argument on appeal. See
Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 705-06 (Tex. App.—Dallas 2008, no
pet.). Instead, Jespersen merely makes a conclusory assertion and cites Cunningham v.
Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983) for the general proposition that “an
award of judgment on a theory not pleaded is erroneous.”9 (App. Brief at 44). Jespersen
9
Cunningham is distinguishable from the present case as it involved a probate judgment in which the
relevant filing failed to set forth a plaintiff or defendant, stated no cause of action, and alleged no
statutory basis on which judgment could be based. Cunningham, 660 S.W.2d at 812-13. Here, Appellees
pleaded for attorneys’ fees in their Second Amended Answer. (I C.R. at 39).
44
provides no authority, though, that the district court here based its award on anything but
Appellees’ pleading. Further, the district court awarded only a fraction of Appellees’
attorneys’ fees. (V C.R. at 1438). With this, Jespersen fails to establish that the district
court did not already discount Appellees’ attorneys’ fees to account only for Appellees’
fees associated with the breach of contract claims.
3.
Appellees Adequately Responded to All Discovery.
Jespersen also argues that Appellees are not entitled to attorney’s fees [sic]
because they failed to disclose any calculations or evidence of the claimed attorney’s fees
in response to Sunny Jespersen’s discovery requests.” (App. Brief at 44-45). Jespersen,
however, does not cite any specific discovery request to which she alleges Appellees
failed to adequately respond. Moreover, the Court does not have to search the record for
evidence in support of Jespersen’s argument. See Nawas v. R & S Vending, 920 S.W.2d
734, 737 (Tex. App.—Houston [1st Dist.] 1996, no writ). Jespersen’s argument therefore
fails. Further, at the district court level, the only discovery request in which Jespersen
argued that Appellees failed to disclose their attorneys’ fees was a request for disclosures.
(V C.R. at 1431-32; III R.R. at 17). Jespersen’s argument fails, though, as Texas Rule of
Civil Procedure 194 requires disclosure of economic damages, not attorneys’ fees. Shook
v. Walden, 304 S.W.3d 910, 921 (Tex. App.—Austin 2010, no pet.); Carter v. Flowers,
2011 Tex. App. LEXIS 7829, at *16-17 (Tex. App.—Fort Worth Sept. 29, 2011, no pet.)
(holding that “[a]ttorney’s fees are not economic damages and are therefore not required
to be disclosed under rule 194.2(d)”).
45
4.
Appellees’ Disclosures Included an Expert on Attorneys’ Fees.
Jespersen next argues that “Appellees were not entitled to attorney’s fees because
they failed to disclose any expert opinions from a qualified witness to support the request
for attorney’s fees in response to Plaintiff’s discovery requests.” (App. Brief at 44).
Jespersen seemingly ignores that Appellees listed their lead counsel J. Richard Hammett
as a testifying expert as to the issue of attorneys’ fees in their Third Amended Responses
to Plaintiff’s Request for Disclosure. ( III R.R. at 18-19; V C.R. at 1330-1428).
5.
Appellees Do Not Seek Fees Under the Texas Civil Practice and
Remedies Code.
Jespersen further argues that “Appellees were not entitled to attorney’s fees
because they failed to satisfy the requirements of TEX. CIV. PRAC. & REM. CODE §
38.001, including the requirement that Appellees make a demand on Jespersen.” (App.
Brief at 44). In making this argument, Jespersen misrepresents Appellees’ position.
Appellees do not seek to recover attorneys’ fees under Texas Civil Practice and Remedies
Code § 38.001. Instead, Appellees sought fees under the express terms of the Lease
Contract. See Intercontinental Group, 295 S.W.3d at 653 (holding that contractual
provisions for attorneys’ fees will trump the statutory provisions of Texas Civil Practice
& Remedies Code); see also Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 417-18 (Tex.
App.—Corpus Christi 2001, pet. denied) (holding that when a party seeks to recover
attorneys’ fees under the terms of a contractual agreement, it is not required to make a
demand that would be required under Chapter 38 of the Texas Civil Practice and
46
Remedies Code). Appellees therefore did not have to satisfy the requirements of the
Texas Civil Practice and Remedies Code and Jespersen’s argument fails.
6.
Sweetwater Is a Party to the Lease and Is Entitled to Recover Fees.
Jespersen argues that CNC is not entitled to attorneys’ fees because CNC is not a
party to the Lease. (App. Brief at 46). Jespersen, however, sued CNC for breach of the
Lease and CNC had to defend against Jespersen’s claim. Jespersen does not cite any
legal authority to support her argument or that the district court’s award amounts to an
abuse of discretion. Jespersen therefore waives any error on this issue. See Hertzberg v.
Austin Diagnostic Clinic Ass’n, P.A., 2009 Tex. App. LEXIS 7149, at *17 (Tex. App.—
Austin 2009, no pet. h.). Moreover, and most glaring, Jespersen ignores that Sweetwater
is a party to the Lease and can thus recover attorneys’ fees. (I C.R. at 161). Jespersen
therefore fails to establish an abuse of discretion and the Court should affirm the district
court’s award of attorneys’ fees.
F.
The District Court Properly Awarded Appellees Costs.
“The allocation of costs is a matter for the trial court’s discretion and cannot be
overturned on appeal unless the trial court abused its discretion.” Madison v. Williamson,
241 S.W.3d 145, 157 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Several courts
have awarded costs for deposition expenses, including copies of transcripts. See Fasken
Land & Minerals, Ltd. v. Occidental Permian Ltd., 225 S.W.3d 577, 596-97 (Tex.
App.—El Paso 2005, pet. denied). Appellant cites to Gumpert v. ABF Freight Sys., 312
S.W.3d 237, 239 (Tex. App.—Dallas 2010) for the proposition that videotaped costs are
not recoverable costs under the Texas Civil Practices & Remedies Code. (App. Brief at
47
47). Here, however, Appellees are not limited to costs under Section 31; Appellees seek
costs under the express terms of paragraph 32 of the Lease, which allow the prevailing
party to “recover from the non-prevailing party attorneys fees and all other litigation
costs (emphasis added).” (See I C.R. at 164); see also Intercontinental Group, 295
S.W.3d at 653 (holding that contractual provisions for attorneys’ fees will trump the
statutory provisions of Texas Civil Practice & Remedies Code). Therefore, Jespersen
fails to carry her burden and does not establish that the district court abused its discretion
in awarding costs to Appellees.
However, even if the district court did commit error and improperly awarded costs
for videotaped depositions and for copies of depositions, Jespersen does not appeal that
the district court properly assessed costs for mediation ($950.00) and for the original
transcript of Jespersen’s deposition ($1,561.50). See Ferry v. Sackett, 204 S.W.3d 911,
913 (Tex. App.—Dallas 2006, no pet.) (holding that “the costs of taking and filing
depositions are recoverable”); Decker v. Lindsay, 824 S.W.2d 247, 249 (Tex. App.—
Houston [1st Dist.] 1992, orig. proceeding) (holding that mediation fees are taxable
costs). Jespersen therefore waives these arguments and is liable to Appellees for costs of
$2,511.50. The Court should therefore affirm the district court’s award of costs to
Appellees.
PRAYER
Appellees respectfully request that the Court:
(a) affirm the Order Granting
Appellees’ Motion for Summary Judgment and the dismissal of Plaintiff’s claims; (b)
affirm the denial of Plaintiff’s Partial MSJ and No Evidence Motion; (c) affirm the Order
48
Assessing Appellees’ Damages, Attorneys’ Fees, and Costs; and (d) grant Appellees all
other relief to which they may be entitled.
Respectfully submitted,
/s/ J. Richard Hammett
J. Richard Hammett
Scott M. Nelson
Telephone No. +1 713 427 5000
Facsimile No. +1 713 427 5099
Attorneys for Appellees Sweetwater
Ranch Apartments and CNC
Investments, Ltd, LLP
49
CERTIFICATE OF SERVICE
Based on the Texas Rules of Appellate Procedure, on November 23, 2011, I
served a copy of this document by electronic mail and U.S. mail to the following counsel:
William J. Dunleavy
Law Offices of William J. Dunleavy, P.C.
8140 Walnut Hill Lane
One Glen Lakes, Suite 950
Dallas, Texas 75231
bill@williamjdunleavy.com
/s/ J. Richard Hammett
J. Richard Hammett
HOUDMS/302044.6
50
NO. 05-11-00583-CV
________________________________________________________________________
IN THE COURT OF APPEALS FOR THE
FIFTH DISTRICT OF TEXAS
AT DALLAS
________________________________________________________________________
SUNSHINE JESPERSEN,
Appellant,
v.
SWEETWATER RANCH APARTMENTS
and CNC INVESTMENTS, LTD, LLP,
Appellees.
_______________________________________________________________________
From the 14th Judicial District Court of Dallas County, Texas
The Honorable Eric Moyé, Presiding
Trial Court No. 09-02799-A
________________________________________________________________________
APPELLEES’ APPENDIX
________________________________________________________________________
J. Richard Hammett
Scott M. Nelson
Telephone No. +1 713 427 5000
Facsimile No. +1 713 427 5099
ATTORNEYS FOR APPELLEES
No Oral Argument Is Requested
Page 1
LEXSEE 987 F.SUPP. 523
Caution
As of: Jul 19, 2010
JOHN AMATO, Plaintiff, versus ST. LUKE'S EPISCOPAL HOSPITAL, Defendant.
CIVIL ACTION H-96-1870
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
TEXAS
987 F. Supp. 523; 1997 U.S. Dist. LEXIS 22364
August 25, 1997, Decided
August 25, 1997, Entered
DISPOSITION:
[**1] St. Luke's Motion for Summary Judgment GRANTED.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant hospital filed a
motion for summary judgment in an action by plaintiff
employee alleging discrimination in violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C.S. §
12101 et seq.
OVERVIEW: The employee suffered from poor vision
due to retinitis pigmentosa. He also had a history of excessive, unauthorized absences from work, which violated the employer's express policies and about which he
was warned repeatedly before finally being terminated.
In granting summary judgment to the hospital the court
held that the employee failed to present a prima facie
case that he was an otherwise qualified individual with a
disability. One of the essential functions of his job was
being there to do it. Having admitted to the unauthorized
absences, the employee established that he could not
perform this essential function without reasonable accommodation. The employee's suggested accommodation -- leave flexibility and unpaid leave -- was not reasonable under 42 U.S.C.S. § 12111(9) because it would
require the hospital to overstaff this position. In any
event the employee never informed the hospital of any
limitations on his ability to work or requested an accommodation. The employee also did not adduce sufficient evidence that he was subject to any unlawful discrimination, or sufficient evidence that the unauthorized
absences were used as a pretext for discrimination.
OUTCOME: The court granted the hospital's summary
judgment motion.
LexisNexis(R) Headnotes
Civil Procedure > Summary Judgment > Standards >
Appropriateness
[HN1] See Fed. R. Civ. P. 56(c).
Civil Procedure > Summary Judgment > Burdens of
Production & Proof > Movants
[HN2] The party seeking summary judgment bears the
initial burden of informing the court of the basis for its
motion and identifying those portions of the pleadings,
depositions, answers to interrogatories, admissions on
file, and affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact. The mov-
App. Def. 1
Page 2
987 F. Supp. 523, *; 1997 U.S. Dist. LEXIS 22364, **
ing party, however, need not negate the elements of the
non-movant's case.
Appropriateness
Genuine Disputes
[HN3] Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts
showing the existence of a genuine issue for trial. The
controverted evidence must be viewed in the light most
favorable to the non-movant, and all reasonable doubts
must be resolved against the moving party. Nevertheless,
conclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy the non-movant's
burden. Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the
existence of an element essential to his case on which he
bears the burden of proof at trial. In such situation, there
can be no genuine issue as to any material fact since a
complete failure of proof concerning an essential element
of the non-moving party's case necessarily renders all
other facts immaterial.
Civil Rights Law > Protection of Disabled Persons >
Americans With Disabilities Act > Scope
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > General
Overview
[HN4] See 42 U.S.C.S. § 12112(a).
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Qualified Individuals With a Disability
[HN5] The Americans with Disabilities Act, 42 U.S.C.S.
§ 12101 et seq., defines a "qualified individual with a
disability" as an individual with a disability who, with or
without a reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires. 42 U.S.C.S. § 12111(8).
Americans With Disabilities Act > General Overview
Labor & Employment Law > Discrimination > Disability Discrimination > Proof > Burdens of Proof > Employee Burdens
[HN6] To recover under the Americans with Disabilities
Act (ADA), 42 U.S.C.S. § 12101 et seq., the plaintiff
must prove that he was discriminated against on the basis
of his disability. The plaintiff may present either direct
evidence of disability discrimination or may employ the
indirect method of proof utilized in other types of discrimination cases. In the absence of direct evidence of
discrimination, the plaintiff can establish a prima facie
case under the ADA by showing that: (1) he has a "disability"; (2) he is qualified for the job; (3) he was subject
to an adverse employment action; and (4) he was replaced by a non-disabled person or was treated less favorably than non-disabled employees.
[HN7] The elements of a plaintiff's prima facie case under the Americans with Disabilities Act, 42 U.S.C.S. §
12101 et seq., necessarily vary according to the facts of
the case and the nature of the claim. Thus, the fourth
element merely sets forth two nonexclusive ways in
which a plaintiff can demonstrate that an adverse employment decision was made "under circumstances
which give rise to an inference of unlawful discrimination.
Labor & Employment Law > Discrimination > Disability Discrimination > Proof > Burdens of Proof > Burden Shifting
[HN8] If the plaintiff succeeds in making this prima facie
showing under the Americans with Disabilities Act, 42
U.S.C.S. § 12101 et seq., a rebuttable presumption of
discrimination arises, and the burden of production shifts
to the employer to articulate a legitimate, nondiscriminatory reason for its actions. While the employer need not
prove that its actions were motivated by the legitimate
reason, it must produce some evidence in support of its
proffered reason. The defendant's burden is merely one
of production and not of persuasion. If the employer produces any evidence which, taken as true, would permit
the conclusion that there was a nondiscriminatory reason
for the adverse action, then the employer has satisfied its
burden of production.
App. Def. 2
Page 3
[HN9] If the employer meets its burden of production,
the presumption is dissolved, and the burden shifts back
to the plaintiff to demonstrate that the proffered reason is
a pretext for discrimination--the defendant's alleged nondiscriminatory reason is false and the real reason for the
adverse action is disability discrimination. As with discrimination cases generally, the plaintiff at all times
bears the ultimate burden of persuading the trier of fact
that he has been the victim of illegal discrimination
based on his disability. To prevail on a claim under the
Americans with Disabilities Act, 42 U.S.C.S. § 12101 et
seq., the plaintiff must prove that an adverse employment
decision was made solely because of his disability.
[HN10] Essential functions are those that bear more than
a marginal relationship to the job at issue. In determining
the essential functions of a position, consideration shall
be given to the employer's judgment as to what functions
of a job are essential, and if an employer has prepared a
written description before advertising or interviewing
applicants for the job, this description shall be considered
evidence of the essential functions of the job. 42 U.S.C.S.
§ 12111(8). Without regard to the essential nature of
certain functions, however, no disabled person is "qualified" if he needs accommodation precisely because he
failed to manage an otherwise controllable disorder.
[HN11] Attendance at work, the most basic element of
an employee's duties, is an essential element of almost all
jobs.
Americans With Disabilities Act > Accommodation
Labor & Employment Law > Discrimination > Disability Discrimination > Reasonable Accommodation >
General Overview
[HN12] Under the Americans with Disabilities Act, 42
U.S.C.S. § 12101 et seq., the term "Reasonable Accommodation," may include--(A) making existing facilities
used by employees readily accessible to and usable by
individuals with disabilities; and (B) job restructuring,
part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment
or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities. 42
U.S.C.S. § 12111(9).
Undue Hardship
[HN13] The plaintiff is required to demonstrate, as part
of his prima facie case under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., that an accommodation of his disability exists and that such accommodation is reasonable. This burden of production is
not a heavy one and merely entails demonstrating the
existence of a plausible accommodation "the costs of
which, facially, do not clearly exceed its benefits. Once
the plaintiff has done this, the defendant has the burden
of showing that the proposed accommodation is unreasonable, which merges, in effect, with its burden of
showing, as an affirmative defense, that the proposed
accommodation would cause it to suffer an undue hardship. In practice, the questions of whether an accommodation is reasonable and whether it creates an undue burden are almost identical.
General Overview
[HN14] While the definition of "reasonable accommodation" is nonexclusive, each example of a "reasonable
accommodation" listed has as its inherent prerequisite an
employee who reports for work. 42 U.S.C.S. § 12111.
Interactive Process
[HN15] An employee has the initial duty to inform the
employer of his disability before liability under the
App. Def. 3
Page 4
Americans with Disabilities Act (ADA), 42 U.S.C.S. §
12101 et seq., is triggered for the employer's failure to
provide accommodation. In making a request for accommodation, the ADA does not require the plaintiff to
speak any magic words before he is subject to its protections.
Interactive Process
[HN16] Once a request for an accommodation is made,
the responsibility for fashioning a reasonable accommodation is shared between the employer and employee.
Thus, to prove discrimination, an employee must show
that the employer knew of the employee's substantial
physical or mental limitation.
Interactive Process
[HN17] It is important to distinguish between an employer's knowledge of an employee's disability versus an
employer's knowledge of any limitations experienced by
the employee as a result of that disability, because the
12101 et seq., requires employers to accommodate limitations, not disabilities. Furthermore, the ADA does not
require an employer to assume that an employee with a
disability necessarily suffers from a limitation; a disabled
employee cannot remain silent and expect his employer
to bear the initial burden of identifying the need for, and
suggesting, an appropriate accommodation. It is the employee's initial request for an accommodation that triggers the employer's obligation to institute one: in general
it is the responsibility of the individual with the disability
to inform the employer that an accommodation is
needed. 29 C.F.R. § 1630.9, App. Accordingly, no liability arises under the ADA when an employee fails to request a reasonable accommodation.
Interactive Process
[HN18] When the plaintiff fails to request an accommodation, the defendant cannot be liable for failing to provide one.
Genuine Disputes
Labor & Employment Law > Discrimination > Disability Discrimination > Defenses & Exceptions > General
Overview
[HN19] Once the defendant articulates a legitimate, nondiscriminatory reason for the employment action at issue,
the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the defendant's articulated reason is false and that prohibited discrimination is
the real reason for the employer's action. In the context
of a motion for summary judgment, a jury issue will be
presented and a plaintiff can avoid summary judgment if
the evidence taken as a whole (1) creates a fact issue as
to whether each of the stated reasons was what actually
motivated the employer and (2) creates a reasonable inference that disability was the sole cause of the actions of
which the plaintiff complains. The question is not
whether the plaintiff proves pretext, but, rather, whether
the plaintiff raises a genuine issue of fact regarding pretext.
Appropriateness
[HN20] In attempting to establish pretext a plaintiff cannot solely rely on his subjective belief that discrimination
has occurred. Similarly, the evidence of pretext must be
more substantial than pure speculation. Self-serving and
speculative testimony is subject to an exacting scrutiny.
Moreover, the employment discrimination laws are not
intended to be a vehicle for judicial second guessing of
business decisions, nor to transform the courts into personnel managers. Federal courts do not sit as a superpersonnel department that reexamines an entity's business decisions. Thus, the employer is entitled to summary judgment if the competent evidence taken as a
whole would not allow a jury to infer that the actual reason for the adverse employment action was discriminatory.
COUNSEL: For JOHN AMATO, plaintiff: Robert S
DuBoise, DuBoise Hengst and Henderson, Houston, TX.
For ST LUKE'S EPISCOPAL HOSPITAL, defendant: T
J Wray, Fulbright and Jaworski, Houston, TX.
App. Def. 4
Page 5
JUDGES: Marcia A. Crone, United States Magistrate
Judge.
OPINION BY: Marcia A. Crone
OPINION
[*526] MEMORANDUM AND ORDER
Pending before the court is Defendant St. Luke's
Episcopal Hospital's ("St. Luke's") Motion for Summary
Judgment (# 20). St. Luke's seeks summary judgment on
Plaintiff John Amato's ("Amato") claims of violation of
the Americans with Disabilities Act ("ADA"), 42 U.S.C.
§ 12101 et seq., and intentional infliction of emotional
distress.
Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable
law, this Court is of the opinion that St. Luke's motion
should be granted.
I. Background
Amato was employed by St. Luke's as a nursing care
assistant from July 1990 until he was terminated in August 1994. Amato suffers from retinitis pigmentosa
("RP"), which has reduced his visual acuity to less than
20/200, and, therefore, he is classified as legally blind.
St. Luke's does not dispute that the plaintiff [**2] suffers
from RP or that he is classified as legally blind. It is also
undisputed that Amato disclosed his medical condition to
St. Luke's. While at St. Luke's, Amato wore corrective
eyeglasses.
As a nursing care assistant, Amato's duties included,
but were not limited to: cleaning operating rooms; responding to pages; and picking up deliveries, supplies,
equipment, specimens, and blood. Amato was also responsible for mopping, picking up trash, and providing
stretchers and recovery room beds for patients. In addition, Amato transported patients between their hospital
rooms and the operating rooms. Amato testified that he
had no problem moving patients to the proper location in
the hospital.
In 1991, Amato received a copy of St. Luke's new
employee handbook. Amato testified at deposition that,
as a St. Luke's employee, he was responsible for knowing the contents of the handbook. The handbook included
St. Luke's revised time and attendance policy, which
provided that each employee is expected to report as
scheduled and to keep absences to a minimum. The policy specifically provided that when an employee's attendance record fell below St. Luke's acceptable standards
for unscheduled absences, [**3] the following corrective action steps were to be taken:
. on the fourth (4th) unscheduled occasion of absence during the attendance [*527] year, the
employee will receive a
verbal conference;
. on the sixth (6th) unscheduled occasion of absence during the attendance year, the employee
will receive a written conference;
. on the seventh (7th)
unscheduled occasion of
absence during the attendance year, the employee
will receive an additional
written conference and be
placed on probation for excessive absenteeism for
ninety (90) days or the remainder of the attendance
year, whichever is greater;
. any further unscheduled occasions of absence
during the probationary period may result in the discharge of the employee for
excessive absenteeism;
2. any employee who is placed on probation for absenteeism in two consecutive
years may be discharged for excessive absenteeism.
Amato had a history of poor attendance throughout
his employment at St. Luke's. Consequently, he was repeatedly counseled and disciplined for excessive absenteeism. On June 24, 1991, Amato received a verbal employee conference report due to four unscheduled absences. On December 27, 1991, he [**4] received a
written employee conference report and was placed on
probation for ninety days as a result of his continued
poor attendance. Amato was then cautioned that immediate improvement in his attendance was required. By
April 28, 1992, Amato had four additional absences. In
accordance with St. Luke's attendance policy, he was
given another verbal conference. On June 26, 1992,
Amato received an additional written conference because
App. Def. 5
Page 6
he had accrued an additional six unscheduled absences.
On August 31, 1992, Amato was given a written conference report and placed on probation for ninety days because of his continued absenteeism. Amato drafted a
written statement in response to this written conference
record in which he attributed his unscheduled absences
to abdominal pain or gastritis.
On November 18, 1992, Amato called St. Luke's to
report that he was sick with a headache. Because he was
still on probation, this additional unscheduled absence
was grounds for termination. St. Luke's opted, however,
to extend Amato's probationary period for thirty more
days rather than terminating him. He was once again
warned that his attendance must improve immediately.
Amato signed the employee conference [**5] record but
did not include any comments. Despite these explicit
warnings, Amato's poor attendance continued. By June
16, 1993, he had four unscheduled absences within the
1993 attendance year. As a result, Amato was given another verbal conference report. By September 24, 1993,
he had accumulated a total of six unscheduled absences.
Once again, Amato was given a verbal conference report
and was informed that he must improve his attendance
immediately. By October 7, 1993, however, Amato had
seven unscheduled absences and, as a result, was placed
on probation for the second time.
By February 1994, Amato had accumulated two additional unscheduled absences. In light of the two consecutive probationary periods, St. Luke's management
met with Amato to advise him that pursuant to St. Luke's
attendance policy, he would be terminated if he accumulated an additional absence during the remainder of the
1994 attendance year. On August 4 and 5, Amato did not
report to work. On August 8, 1994, St. Luke's terminated
Amato for excessive absenteeism. Amato concedes that
his attendance was poor under the standards set forth in
St. Luke's attendance policy, but he contends that his
vision disability [**6] caused him at times to board the
wrong Metro bus, leading him to miss work altogether.
Amato further claims that he missed work on other occasions due to headaches caused by RP.
Amato timely filed a charge of discrimination with
the Equal Employment Opportunity Commission
("EEOC") and received a right to sue letter. On June 17,
1996, Amato filed this action alleging that St. Luke's had
discriminated against him in violation of the ADA and
had intentionally inflicted emotional distress upon him.
ings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law."
FED. R. CIV. P. 56(c). [HN2] The party seeking summary judgment bears the initial burden of informing the
court of the basis for its motion and identifying those
portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any,
which it believes demonstrate the absence of a genuine
[**7] issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct.
2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir. 1988). The
moving party, however, need not negate the elements of
the non-movant's case. See Wallace v. Texas Tech Univ.,
80 F.3d 1042, 1047 (5th Cir. 1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
[HN3] Once a proper motion has been made, the
non-moving party may not rest upon mere allegations or
denials in the pleadings, but must set forth specific facts
showing the existence of a genuine issue for trial. See
Celotex Corp., 477 U.S. at 322-23; Anderson, 477 U.S.
at 257; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1069,
1075. The controverted evidence must be viewed in the
light most favorable to the non-movant, and all reasonable doubts must be resolved against the moving party.
See Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n.5, 112
L. Ed. 2d 349, 111 S. Ct. 401 (1990); Anderson, 477 U.S.
at 255; Judwin Properties, Inc. v. United States Fire Ins.
Co., [**8] 973 F.2d 432, 435 (5th Cir. 1992). Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Douglass v. United Serv. Auto. Ass'n,
79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v.
Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513
U.S. 871 (1994)); see Wallace, 80 F.3d at 1047; Little,
37 F.3d at 1075. Summary judgment is mandated if the
non-movant fails to make a showing sufficient to establish the existence of an element essential to his case on
which he bears the burden of proof at trial. See Celotex
Corp., 477 U.S. at 322. "In such situation, there can be
'no genuine issue as to any material fact' since a complete
failure of proof concerning an essential element of the
non-moving party's case necessarily renders all other
facts immaterial." Id. at 323.
B. Americans with Disabilities Act
II. Analysis
A. Summary Judgment Standard
Rule 56(c) provides that [HN1] "[summary] judgment shall be rendered forthwith if the [*528] plead-
The ADA is a federal antidiscrimination statute designed to prevent otherwise qualified individuals from
being discriminated against in employment based on a
disability. See 29 C.F.R. § 1630, App.; Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 160-61 (5th Cir.),
App. Def. 6
Page 7
[**9] cert. denied, 519 U.S. 1029, 136 L. Ed. 2d 515,
117 S. Ct. 586 (1996). To achieve this goal, the ADA
provides that [HN4] "no covered entity shall discriminate
against a qualified individual with a disability because of
the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and
other terms, conditions, and privileges of employment."
42 U.S.C. § 12112(a); see also Taylor, 93 F.3d at 162;
Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th
Cir. 1995); Daugherty v. City of El Paso, 56 F.3d 695,
696 (5th Cir. 1995), cert. denied, 516 U.S. 1172, 116 S.
Ct. 1263, 134 L. Ed. 2d 211 (1996); Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995). [HN5]
The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
1. Prima Facie Case and Burden of Proof
[HN6] To recover under the ADA, the plaintiff must
prove that he was discriminated against on the basis of
his disability. [**10] See Daigle, 70 F.3d at 396;
Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 510-11
(1st Cir. 1996); Allison v. Department of Corrections, 94
F.3d 494, 497 (8th Cir. 1996). The plaintiff may present
either direct evidence of disability [*529] discrimination or may employ the indirect method of proof utilized
in other types of discrimination cases. See Taylor, 93
F.3d at 162; Rizzo v. Children's World Learning Ctrs.,
Inc., 84 F.3d 758, 762 (5th Cir. 1996); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L.
Ed. 2d 668, 93 S. Ct. 1817 (1973). In the absence of direct evidence of discrimination, the plaintiff can establish
a prima facie case under the ADA by showing that: (1)
he has a "disability"; (2) he is qualified for the job; (3) he
was subject to an adverse employment action; and (4) he
was replaced by a non-disabled person or was treated
less favorably than non-disabled employees. 1 See Burch
v. Coca-Cola Co., 119 F.3d 305, 1997 WL 425943, at
*13 (5th Cir. 1997) (citing Daigle, 70 F.3d at 396); see
also Turco v. Hoechst Celanese Corp., 101 F.3d 1090,
1092 (5th Cir. 1996) (citing Rizzo, 84 F.3d at 763).
[**11]
1 [HN7] "The elements of a plaintiff's prima facie case necessarily vary according to the facts of
the case and the nature of the claim." LaPierre v.
Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir.
1996). Thus, the fourth element merely sets forth
two nonexclusive ways in which a plaintiff can
demonstrate that an adverse employment decision
was made "under circumstances which give rise
to an inference of unlawful discrimination."
Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089
(1981); see also EEOC v. Huber Corp., 927 F.2d
1322, 1328, n.24 (5th Cir. 1991).
[HN8] If the plaintiff succeeds in making this prima
facie showing, a rebuttable presumption of discrimination arises, and the burden of production shifts to the
employer to articulate a legitimate, nondiscriminatory
reason for its actions. See Daigle, 70 F.3d at 396 (citing
Burdine, 450 U.S. at 254); Olitsky v. Spencer Gifts, Inc.,
964 F.2d 1471, 1478 n.19 (5th Cir. 1992); EEOC v.
[**12] Texas Bus Lines, 923 F. Supp. 965, 969-70 (S.D.
Tex 1996). While the employer need not prove that its
actions were motivated by the legitimate reason, it must
produce some evidence in support of its proffered reason.
See Daigle, 70 F.3d at 396 (citing St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 507-10, 125 L. Ed. 2d 407, 113 S.
Ct. 2742 (1993)); Texas Bus Lines, 923 F. Supp. at 970.
"The defendant's burden is merely one of production and
not of persuasion. See Burdine, 450 U.S. at 257-58. "If
the employer produces any evidence 'which, taken as
true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action,' then the
employer has satisfied its burden of production." Daigle,
70 F.3d at 396 (quoting St. Mary's Honor Ctr., 509 U.S.
at 507); see also Texas Bus Lines, 923 F. Supp. at 970.
[HN9] If the employer meets its burden of production, the presumption is dissolved, and the burden shifts
back to the plaintiff to demonstrate that the proffered
reason is a pretext for discrimination--the defendant's
alleged nondiscriminatory reason is false and the real
reason for the adverse action is disability discrimination.
See Armendariz [**13] v. Pinkerton Tobacco Co., 58
F.3d 144, 148 (5th Cir. 1995) (citing St. Mary's Honor
Ctr., 509 U.S. at 510-511)); Daigle, 70 F.3d at 396. As
with discrimination cases generally, the plaintiff at all
times bears the ultimate burden of persuading the trier of
fact that he has been the victim of illegal discrimination
based on his disability. See id. (citing St. Mary's Honor
Ctr., 509 U.S. at 511). To prevail on an ADA claim, the
plaintiff must prove that an adverse employment decision
was made solely because of his disability. See Turco, 101
F.3d at 1092; Rizzo, 84 F.3d at 763.
a. Otherwise Qualified Individual with a Disability
In this case, St. Luke's does not contest that Amato
suffers from a disability. St. Luke's contends, however,
that Amato was not otherwise qualified for his position,
as he was unable to maintain an acceptable attendance
record.
As discussed above, a "qualified individual with a
disability" under the ADA is "an individual with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment
App. Def. 7
Page 8
position that such individual holds . . . ." 42 U.S.C. §
12111(8). Therefore, in order for [**14] Amato to demonstrate that he was qualified for the nursing care assistant position, he must establish that: (1) he could perform
the [*530] essential functions of the job; or (2) if he was
not able to perform the essential functions of the job, that
a reasonable accommodation by St. Luke's would have
enabled him to perform those functions. See Chandler v.
City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993).
b. Essential Functions of the Job
[HN10] Essential functions are those that bear more
than a marginal relationship to the job at issue. See id. In
determining the essential functions of a position, "consideration shall be given to the employer's judgment as to
what functions of a job are essential, and if an employer
has prepared a written description before advertising or
interviewing applicants for the job, this description shall
be considered evidence of the essential functions of the
job." 42 U.S.C. § 12111(8). Without regard to the essential nature of certain functions, however, no disabled
person is "qualified" if he needs accommodation precisely because he failed to manage an otherwise controllable disorder. See Siefken v. Village of Arlington
Heights, 65 F.3d 664, [**15] 666-67 (7th Cir. 1995)
(diabetic who failed to monitor his controllable condition
did not state a cause of action under the ADA).
St. Luke's asserts that regular attendance is an essential function of all of its jobs, including that of a nursing
care assistant. Accordingly, the hospital distributed to all
of its employees a written statement of its time and attendance policies. It is apparent from this statement that
St. Luke's considers regular attendance to be an essential
function of the job held by Amato. Amato's description
of his job duties further confirms that his presence at the
hospital was essential for the performance of his job.
Indeed, numerous courts have held that [HN11] attendance at work, the most basic element of an employee's
duties, is an essential element of almost all jobs. See,
e.g., Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209,
213 (4th Cir. 1994) (an employee must be willing and
able to come to work on a regular basis); Carr v. Reno,
306 U.S. App. D.C. 217, 23 F.3d 525, 529 (D.C. Cir.
1994) ("essential function of government job is an ability
to appear for work"); Law v. United States Postal Serv.,
852 F.2d 1278, 1279-80 (Fed. Cir. 1988) ("an agency
[**16] is inherently entitled to require an employee to
be present during scheduled work times"); EEOC v. AIC
Sec. Investigation Ltd., 820 F. Supp. 1060, 1064 (N.D.
Ill. 1993) (for ADA purposes, attendance is necessary for
any job); Walders v. Garrett, 765 F. Supp. 303, 309
(E.D. Va. 1991) (generally employees cannot perform
their job without attendance); Santiago v. Temple Univ.,
739 F. Supp. 974, 979 (E.D. Pa. 1990) ("attendance is
necessarily the fundamental prerequisite to job qualifica-
tion"), aff'd, 928 F.2d 396 (3d Cir. 1991); Barfield v. Bell
South Telecomms., Inc., 886 F. Supp. 1321, 1326 (E.D.
Miss. 1995) ("regular attendance at work is an essential
function of virtually all jobs"). Accordingly, as with most
jobs, regular attendance is an essential function of
Amato's position with St. Luke's.
c. Capability of Essential Functions Without Accommodation
Amato maintains that he could perform the essential
functions of his job. In support of his position, Amato
points out that St. Luke's representative, Rena Sebesta,
admitted that Amato competently performed every other
essential function of his job, except regular attendance.
Nevertheless, Amato concedes that [**17] he had eight
unscheduled absences in 1991, eight unscheduled absences in 1992, seven unscheduled absences in 1993, and
four unscheduled absences in 1994. Furthermore, at
deposition, Amato admitted that his record of attendance
was "poor." Hence, it is manifest that, during four consecutive years, the plaintiff was unable to perform an
essential function of his job--regular attendance at work.
Thus, Amato cannot be said to be capable of performing
the essential functions of his job without reasonable accommodation.
d. Capability of Essential Functions with Reasonable
Accommodation
Amato also contends that he would be able to perform the essential aspects of his job if the hospital made
reasonable accommodation for his disability. Specifically, he suggests an accommodation of leave flexibility
and unpaid leave.
[*531] [HN12] Under the ADA, the
term "Reasonable Accommodation," may
include-(A) making existing facilities used by
employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or
modified work schedules, reassignment to
a vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications [**18] of
examinations, training materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9).
[HN13] The plaintiff is required to demonstrate, as
part of his prima facie case, that an accommodation of
App. Def. 8
Page 9
his disability exists and that such accommodation is reasonable. See Riel v. Electronic Data Sys. Corp., 99 F.3d
678, 683 (5th Cir. 1996); Stewart v. Happy Herman's
Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.
1997) (citing Willis v. Conopco, Inc., 108 F.3d 282, 285
(11th Cir. 1997)). This burden of production is not a
heavy one and merely entails demonstrating the existence of a plausible accommodation "the costs of which,
facially, do not clearly exceed its benefits." Borkowski v.
Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995).
Once the plaintiff has done this, the defendant has the
burden of showing that the proposed accommodation is
unreasonable, which "merges, in effect, with its burden
of showing, as an affirmative defense, that the proposed
accommodation would cause it to suffer an undue hardship." See id. In practice, the questions of whether [**19]
an accommodation is reasonable and whether it creates
an undue burden are almost identical. See, e.g., School
Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17,
94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987) ("Accommodation is not reasonable if it either imposes 'undue financial
and administrative burdens' on a grantee, or requires a
'fundamental alteration in the nature of [the] program'")
(citation omitted); Riel, 99 F.3d at 681 ("The terms "reasonable accommodation" and "undue hardship" often go
hand-in-hand."); Hall v. United States Postal Serv., 857
F.2d 1073, 1080 (6th Cir. 1988) (stating that an accommodation is not reasonable if it places an undue burden
on the employer).
An examination of Amato's suggested accommodations reveals that they differ in kind from the types of
accommodations set forth in the ADA definition. [HN14]
While this definition is nonexclusive, each example of a
"reasonable accommodation" listed has as its inherent
prerequisite an employee who reports for work. See 42
U.S.C. § 12111. Furthermore, Amato's suggested accommodations are unreasonable, in that "these accommodations do not address the heart of the problem: the
unpredictable nature of [**20] . . . [plaintiff's] absences." See Jackson v. Veterans Admin., 22 F.3d 277,
279 (11th Cir. 1994).
In Jackson, the plaintiff was terminated from a probationary housekeeping position after accruing six unforeseen absences in a period of about two and one-half
months, ostensibly due to his rheumatoid arthritis. See id.
at 278. The plaintiff requested that his employer accommodate his disability by allowing him to trade work days
with other employees, delaying the start time of his shift,
or by delaying some of his tasks to another day. See id.
The Eleventh Circuit held that such accommodations
were not reasonable, however, as they would place an
undue hardship on the employer. See id. The court reasoned that the plaintiff's suggested accommodations
would require the employer to make last-minute ar-
rangements for the plaintiff's work to be done by some
other employee every time the plaintiff was unexpectedly
absent. See id. at 279.
Similarly, in the instant case, Amato's suggested accommodations provide no remedy for the sporadic and
unpredictable nature of Amato's absences. His suggestions essentially require the hospital to retain and compensate a surplus of [**21] employees on Amato's
scheduled work days to be available in the event he fails
to report for work. This would require substantial modification of the hospital's basic employment practice of
requiring employees to follow a regular schedule of attendance. Altering an employer's general practice of requiring regular attendance would be unduly burdensome
to most employers, but is especially onerous for a hospital where the predictability of a certain level [*532] of
staff is essential for proper patient care. On its face, the
financial burden of such an accommodation outweighs
any conceivable benefit. Moreover, Amato's suggestions
do not address the manner in which St. Luke's could accommodate Amato's disability at his place of employment, but rather, are merely ways in which the hospital
could deal with Amato's absences from work. Thus, the
suggested accommodations place an undue burden on the
employer, and therefore are not required under the ADA.
See Daugherty, 56 F.3d at 700.
In short, Amato's disability affects his employment,
if at all, long before he arrives at his place of employment or before he fails to arrive. Therefore, any accommodation of this disability, aside from tolerating [**22]
numerous sporadic absences, is really outside the employer's realm. Furthermore, "while the ADA focuses on
eradicating barriers, the ADA does not relieve a disabled
employee or applicant from the obligation to perform the
essential functions of the job. To the contrary, the ADA
is intended to enable disabled persons to compete in the
work-place based on the same performance standards
and requirements that employers expect of persons who
are not disabled." Foreman v. Babcock & Wilcox Co.,
117 F.3d 800, 807 (5th Cir. 1997) (citation omitted).
Yet, Amato's suggested accommodations seek to exempt
him from the performance standards and attendance requirements demanded of other St. Luke's employees.
Hence, because Amato is unable to perform the essential
functions of his job due to his lack of regular attendance,
and his suggested accommodations are neither reasonable nor effective, he cannot be viewed as an otherwise
qualified individual with a disability under the ADA.
e. Failure to Inform of Limitation and Request Accommodation
In any event, if Amato were found to be a qualified
person as defined by the ADA, a review of the evidence
indicates that he failed to inform St. Luke's [**23] of
App. Def. 9
Page 10
any limitation resulting from his disability or to request
accommodation.
[HN15] An employee has the initial duty to inform
the employer of his disability before ADA liability is
triggered for the employer's failure to provide accommodation. See Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004, 1012 (7th Cir. 1997). This
is because the employee is in the best position to know
the extent of his limitations and the scope of the requisite
accommodations. See Taylor, 93 F.3d at 165. In making
a request for accommodation, the ADA "does not require
the plaintiff to speak any magic words before he is subject to its protections." Schmidt v. Safeway, Inc., 864 F.
Supp. 991, 997 (D. Or. 1994); see also Bultemeyer v.
Fort Wayne Community Schs., 100 F.3d 1281, 1285 (7th
Cir. 1996). [HN16] Once a request for an accommodation is made, the responsibility for fashioning a reasonable accommodation is shared between the employer and
employee. See id. Thus, to prove discrimination, an employee must show that the employer knew of the employee's substantial physical or mental limitation. See
Taylor, 93 F.3d at 163.
As the Fifth Circuit has noted,[HN17] it is important to distinguish [**24] between an employer's knowledge of an employee's disability versus an employer's
knowledge of any limitations experienced by the employee as a result of that disability, because the ADA
requires employers to accommodate limitations, not disabilities. See id. at 164-65. Furthermore, the ADA does
not require an employer to assume that an employee with
a disability necessarily suffers from a limitation; "a disabled employee cannot remain silent and expect his employer to bear the initial burden of identifying the need
for, and suggesting, an appropriate accommodation." Id.
at 165; Scheer v. City of Cedar Rapids, 956 F. Supp.
1496, 1500 (N.D. Iowa 1997). It is the employee's initial
request for an accommodation that triggers the employer's obligation to institute one: "in general . . . it is
the responsibility of the individual with the disability to
inform the employer that an accommodation is needed."
29 C.F.R. § 1630.9, App.; see also Morton v. GTE North,
Inc., 922 F. Supp. 1169, 1180 (N.D. Tex. 1996) ("the
employee cannot expect the employer to read [his] mind
and know [he] secretly wanted a particular accommodation and sue the employer for not providing [*533] it.").
[**25] Accordingly, no liability arises under the ADA
when an employee fails to request a reasonable accommodation. See Taylor, 93 F.3d at 165.
In this situation, Amato testified that he had no difficulty performing any of his job duties when at work and
that he neither requested nor could even think of an appropriate accommodation. He further testified that he did
not request a change in job shift or work hours because
the shift he had was "the best schedule," as he was able
to ride to work with his brother. At deposition, Amato
stated both that he did not need accommodation and was
unaware of any manner in which the hospital could have
accommodated him:
Q: You didn't need accommodation to
perform you duties, correct?
A: I didn't need accommodations.
Q: Okay. And -- but you couldn't
think of anything -- anyway that you
could have been -- that St. Luke's could
have accommodated you?
A: I was trying, and, no, I couldn't
think of anything.
[HN18] When the plaintiff fails to request an accommodation, the defendant cannot be liable for failing
to provide one. See Taylor, 93 F.3d at 165. In light of
Amato's failure to inform St. Luke's of any work limitations stemming from his [**26] RP or to request any
accommodation, the hospital cannot be held liable under
the ADA for disability discrimination.
f. Circumstances of Termination Indicative of
Unlawful Discrimination
In addition, Amato has failed to satisfy the fourth
element of a prima facie case. Amato has not demonstrated that the circumstances of his termination give rise
to an inference of unlawful discrimination by showing
that he was replaced by a non-disabled person, that he
was treated less favorably than non-disabled employees,
or through some other means. Although "the evidence
necessary to support an inference of discrimination will
vary from case to case," Amato has presented no evidence which would sustain such an inference. Rhodes v.
Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996).
Because Amato has produced no evidence with respect
to this element, he has likewise failed to establish a
prima facie case.
2. Nondiscriminatory Reason for Termination and Lack
of Pretext
Finally, even if Amato had established the necessary
elements of a prima facie case, St. Luke's has adequately
demonstrated a legitimate, nondiscriminatory reason for
terminating Amato--excessive absenteeism [**27] under
the attendance policy.
[HN19] Once the defendant articulates a legitimate,
nondiscriminatory reason for the employment action at
issue, the burden shifts back to the plaintiff to prove by a
preponderance of the evidence that the defendant's ar-
App. Def. 10
Page 11
ticulated reason is false and that prohibited discrimination is the real reason for the employer's action. See St.
Mary's Honor Ctr., 509 U.S. at 510-11; Grimes v. Texas
Dep't of Mental Health & Mental Retardation, 102 F.3d
137, 140 (5th Cir. 1996). In the context of a motion for
summary judgment, "[a] jury issue will be presented and
a plaintiff can avoid summary judgment . . . if the evidence taken as a whole (1) creates a fact issue as to
whether each of the stated reasons was what actually
motivated the employer and (2) creates a reasonable inference that [disability] was [the sole cause of] the actions of which the plaintiff complains." Rhodes, 75 F.3d
at 994; see Hall v. Gillman, Inc., 81 F.3d 35, 37 (5th Cir.
1996). The question is not whether the plaintiff proves
pretext, but, rather, whether the plaintiff raises a genuine
issue of fact regarding pretext. See id. (citing Thornbrough, 760 F.2d 633 at 646); Amburgey [**28] v.
Corhart Refractories Corp., 936 F.2d 805, 813 (5th Cir.
1991).
[HN20] In attempting to establish pretext, however,
a plaintiff cannot solely rely on his subjective belief that
discrimination has occurred. See Price v. Marathon
Cheese Corp., 119 F.3d 330, 1997 WL 429188, at *6 (5th
Cir. 1997); Nichols v. Loral Vought Sys. Corp., 81 F.3d
38, 42 (5th Cir. 1996); Douglass, 79 F.3d at 1430; Ray v.
Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir.
1995); Armendariz, 58 F.3d at 152-53. [*534] Similarly, the evidence of pretext must be more substantial
than pure speculation. See Nichols, 81 F.3d at 42; Ralston Purina Co. v. Hobson, 554 F.2d 725 (5th Cir.
1977). Self-serving and speculative testimony is subject
to an exacting scrutiny. See Molnar v. Ebasco Constr.
Inc., 986 F.2d 115, 119 (5th Cir. 1993); Elliott v. Group
Med. & Surgical Serv., 714 F.2d 556, 564 (5th Cir.
1983). Moreover, the employment discrimination laws
are "not intended to be a vehicle for judicial second
guessing of business decisions, nor . . . to transform the
courts into personnel managers." EEOC v. Louisiana
Office of Community Servs., 47 F.3d 1438, [**29] 1448
(5th Cir. 1995) (citing Bienkowski v. American Airlines,
Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988)); accord
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 (5th
Cir. 1993); see also Furnco Constr. Corp. v. Waters, 438
U.S. 567, 577-78, 57 L. Ed. 2d 957, 98 S. Ct. 2943
(1978); Waggoner v. City of Garland, 987 F.2d 1160,
1165 (5th Cir. 1993); Thornbrough, 760 F.2d at 647.
"Federal courts 'do not sit as a super-personnel department that reexamines an entity's business decisions . . .
.'" Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470
(11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck &
Co., 864 F.2d 1359, 1365 (7th Cir. 1988)). Thus, the
employer is entitled to summary judgment if the competent evidence taken as a whole would not allow a jury to
infer that the actual reason for the adverse employment
action was discriminatory. See Hall, 81 F.3d at 37; At-
kinson v. Denton Pub. Co., 84 F.3d 144, 148 (5th Cir.
1996).
In the instant case, Amato has made no showing that
St. Luke's proffered reason is a pretext for discrimination. Beyond speculation and conjecture, he has adduced
no evidence that the hospital's nondiscriminatory reason
is untrue [**30] or that the real reason for his termination is his disability. Hence, Amato has failed to demonstrate that the hospital's explanation is unworthy of credence. In fact, at deposition, he acknowledged that his
attendance was poor. Amato also has made no showing
that he was treated less favorably than non-disabled employees who had accrued a similar number of unscheduled absences. To the contrary, the evidence indicates
that St. Luke's actually treated Amato with leniency
when enforcing its new attendance policy. In November
1992, the hospital extended Amato's probationary period
by thirty days, rather than terminate him. Thus, instead
of treating Amato less favorably than employees who
were not disabled, St. Luke's was more accommodating
than required under its own policies. Such conduct is
hardly indicative of discriminatory animus. Accordingly,
there is no evidence that St. Luke's discriminated against
Amato for any reason, much less because of his disability. Under these circumstances, it is apparent that
Amato's disability was neither the sole cause nor even a
determining factor in his discharge. See Turco, 101 F.3d
at 1092; Rizzo, 84 F.3d at 763. Therefore, Amato has
failed [**31] to establish a claim cognizable under the
ADA, and summary judgment is proper.
C. Intentional Infliction of Emotional Distress Claim
In his original complaint, Amato alleged that St.
Luke's intentionally inflicted emotional distress on him.
He now admits, however, that St. Luke's conduct was not
extreme and outrageous, an essential element of an intentional infliction of emotional distress claim under Texas
law. See, e.g., Burden v. General Dynamics Corp., 60
F.3d 213, 218 (5th Cir. 1995); MacArthur v. University
of Tex. Health Ctr., 45 F.3d 890, 898 (5th Cir. 1995).
Thus, Amato concedes that St. Luke's is entitled to summary judgment with respect to this claim.
III. Conclusion
Accordingly, St. Luke's Motion for Summary Judgment is GRANTED. There are no outstanding issues of
material fact with regard to Amato's claims of disability
discrimination or intentional infliction of emotional distress, and St. Luke's is entitled to judgment as a matter of
law.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this 25th day of August, 1997.
App. Def. 11
Page 12
Marcia A. Crone
United States Magistrate Judge
App. Def. 12
Page 1
8 of 100 DOCUMENTS
DAWN ANDERSON, Appellant v. TU ELECTRIC, Appellee
No. 05-99-01255-CV
COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS
2000 Tex. App. LEXIS 2878
May 3, 2000, Opinion Filed
NOTICE:
[*1] PURSUANT TO THE TEXAS
RULES OF APPELLATE PROCEDURE, UNPUBLISHED OPINIONS SHALL NOT BE CITED AS AUTHORITY BY COUNSEL OR BY A COURT.
stroyed evidence which it had a duty to preserve, the
court could not conclude that trial court abused its discretion by rejecting plaintiff's request for a spoliation presumption.
PRIOR HISTORY: On Appeal from the 134th Judicial District Court. Dallas County, Texas. Trial Court
Cause No. 97-01562-G.
OUTCOME: Summary judgment affirmed; trial court
properly determined that plaintiff failed to produce any
evidence showing that defendant had actual or constructive knowledge of the defective utility lid.
DISPOSITION: AFFIRMED.
CASE SUMMARY:
PROCEDURAL POSTURE: In premises defect case,
plaintiff appealed summary judgment entered by the
134th Judicial District Court, Dallas County (Texas), in
favor of defendant.
OVERVIEW: Plaintiff was walking on a sidewalk when
she stepped onto a utility lid. The lid collapsed, and
plaintiff fell into an electric box used by defendant in the
operation of street lighting. Plaintiff sued defendant for
negligence, alleging defendant's failure to warn her of the
defective lid caused her injury. In affirming trial court's
grant of summary judgment for defendant, the court concluded there was nothing in plaintiff's summary judgment evidence to suggest that: (1) defendant created the
defect; (2) knew of the defect and negligently failed to
remove it; or (3) the defect existed for so long that it
should have been discovered in the exercise of ordinary
care. Thus, trial court properly determined that plaintiff
failed to produce any evidence showing that defendant
had actual or constructive knowledge of the defective
utility lid. Because plaintiff failed to provide any evidence that defendant negligently or intentionally de-
Civil Procedure > Summary Judgment > Evidence
Genuine Disputes
Criminal Law & Procedure > Trials > Burdens of
Proof > Prosecution
[HN1] Tex. R. Civ. P. 166a(i) provides that after adequate time for discovery, a party without presenting
summary judgment evidence may move for summary
judgment on the ground that there is no evidence of one
or more essential elements of a claim or defense on
which an adverse party would have the burden of proof
at trial. The motion must state the elements as to which
there is no evidence. The court must grant the motion
unless the respondent produces summary judgment evidence raising a genuine issue of material fact.
Production & Proof > General Overview
Criminal Law & Procedure > Appeals > Reviewability
> Waiver > Admission of Evidence
App. Def. 13
Page 2
2000 Tex. App. LEXIS 2878, *
[HN2] When a motion is presented under Tex. R. Civ. P.
166a(i) asserting there is no evidence of one or more
essential elements of the nonmovant's claims upon which
the nonmovant would have the burden of proof at trial,
the movant does not bear the burden of establishing each
element of its own claim or defense. Rather, the burden
shifts to the nonmovant to present enough evidence to be
entitled to a trial, i.e., evidence that raises a genuine fact
issue on the challenged elements. If the nonmovant is
unable to provide that evidence, the trial judge must
grant the motion.
Civil Procedure > Summary Judgment > Appellate Review > General Overview
Civil Procedure > Appeals > Standards of Review
[HN3] Because a no-evidence summary judgment is essentially a pretrial directed verdict, the reviewing court
applies the same legal sufficiency standard in reviewing
a no-evidence summary judgment as it applies in reviewing a directed verdict. Thus, the reviewing court must
determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. The reviewing court considers
all the evidence in the light most favorable to the party
against whom the no-evidence summary judgment was
rendered, disregarding all contrary evidence and inferences.
Production & Proof > Scintilla Rule
Civil Procedure > Appeals > Standards of Review
[HN4] A no-evidence summary judgment is improperly
granted if the nonmovant presents more than a scintilla
of probative evidence to raise a genuine issue of material
fact. More than a scintilla of evidence exists when the
evidence rises to a level that would enable reasonable
and fair-minded people to differ in their conclusions.
Torts > Premises Liability & Property > General Premises Liability > General Overview
[HN5] To recover for a premises defect, plaintiff must
show that: (1) defendant had actual or constructive
knowledge of some condition, (2) the condition posed an
unreasonable risk of harm, (3) defendant did not exercise
reasonable care to reduce or eliminate the risk, and (4)
defendant's failure to use such care proximately caused
plaintiff's injuries. The existence of actual or constructive
knowledge of a premises defect is a threshold requirement for such a claim.
Civil Procedure > Appeals > Standards of Review >
Abuse of Discretion
Evidence > Documentary Evidence > Best Evidence
Rule
Evidence > Relevance > Spoliation
[HN6] The reviewing court reviews the trial court's decision to reject a party's request for a spoliation presumption for an abuse of discretion.
Rule
[HN7] Spoliation is the improper destruction of evidence
relevant to a case.
Rule
[HN8] The intentional destruction, or spoliation, of evidence relevant to a case may, in the trial court's discretion, give rise to a presumption that the destroyed evidence would not have been favorable to its destroyer.
This presumption may be rebutted by a showing that the
evidence in question was not destroyed with fraudulent
intent or purpose.
Rule
[HN9] When a party believes that another party has improperly destroyed evidence, it may either move for
sanctions or request a spoliation presumption. The trial
court must then determine whether sanctions or a presumption are justified. This legal inquiry involves considering whether there was: (1) a duty to preserve evidence; (2) the negligent or intentional destruction of evidence; and (3) prejudice to the nonspoliator's ability to
present its case or defense.
JUDGES: Before Justices Ovard, Morris, and Roach.
Opinion By Justice Roach.
OPINION BY: JOHN R. ROACH
OPINION
Opinion By Justice Roach
In this premises defect case, Dawn Anderson appeals the summary judgment granted in favor of TU
Electric (TU). Anderson contends the trial court erred by
granting summary judgment because (1) she presented
App. Def. 14
Page 3
2000 Tex. App. LEXIS 2878, *
evidence that raised genuine issues of material fact, (2)
TU failed to respond to discovery requests, and (3) TU
"spoliated" evidence. We overrule Anderson's issues and
affirm the trial court's judgment.
Factual and Procedural Background
Anderson was walking on a sidewalk in downtown
Dallas and stepped onto a utility lid. The lid collapsed,
and she fell into an electric box used by TU in the operation of street lighting. Anderson sued TU for negligence,
alleging TU's failure to warn her of the defective lid
caused her injury. 1
1 Anderson also sued the City of Dallas. The
City filed a motion for summary judgment which
was granted by the trial court. On appeal, Anderson complains only of TU's summary judgment.
Thus, we do not consider the propriety of the
summary judgment for the City.
[*2] TU filed a motion for summary judgment. In
its motion, TU alleged that it was entitled to summary
judgment under rule 166a(i) because Anderson had "no
evidence that the alleged 'defective lid' was caused by
any negligent act or omission on the part of TU, nor evidence that TU knew or should have known that the lid
was damaged, or that TU breached any duty whatsoever
with regard to the lid."
Anderson responded, claiming that her summary
judgment evidence raised a material issue of fact on each
of the elements challenged by TU. On the same day,
Anderson filed a motion to compel, asserting TU abused
the discovery process by failing to answer certain discovery requests, in particular, by failing to provide
Anderson with TU's maintenance records for the utility
box and the utility box cover. Our record does not reflect
that the trial court conducted a hearing on the motion,
nor does it contain a ruling on the motion. About four
months later, the trial court granted TU's motion for
summary judgment. This appeal followed.
Discussion
[HN1] Rule 166a(i) provides as follows:
After adequate time for discovery, a party without
presenting summary judgment evidence may move for
summary [*3] judgment on the ground that there is no
evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of proof at trial. The motion must state the elements
as to which there is no evidence. The court must grant
the motion unless the respondent produces summary
judgment evidence raising a genuine issue of material
fact.
TEX. R. CIV. P. 166a(i). [HN2] When a motion is presented under rule 166a(i) asserting there is no evidence
of one or more essential elements of the nonmovant's
claims upon which the nonmovant would have the burden of proof at trial, the movant does not bear the burden
of establishing each element of its own claim or defense.
Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432-33
(Tex. App.-Houston [14th Dist.] 1999, no pet.). Rather,
the burden shifts to the nonmovant to present enough
evidence to be entitled to a trial, i.e., evidence that raises
a genuine fact issue on the challenged elements. See Tex.
R. Civ. P. 166a(i). If the nonmovant is unable to provide
that evidence, the trial judge must grant the motion. See
Lampasas, 988 S.W.2d at 433.
[HN3] Because a no-evidence summary [*4] judgment is essentially a pretrial directed verdict, we apply
the same legal sufficiency standard in reviewing a noevidence summary judgment as we apply in reviewing a
directed verdict. See Roth v. FFP Operating Partners,
L.P., 994 S.W.2d 190, 195 (Tex. App.-Amarillo 1999,
pet. denied); Moore v. K Mart Corp., 981 S.W.2d 266,
269 (Tex. App.-San Antonio 1998, pet. denied); Jackson
v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.Austin 1998, no pet.). Thus, we must determine whether
the nonmovant produced any evidence of probative force
to raise a fact issue on the material questions presented.
Roth, 994 S.W.2d at 195; Jackson, 979 S.W.2d at 70. We
consider all the evidence in the light most favorable to
the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence
and inferences. See Merrell Dow Pharm., Inc. v. Havner,
953 S.W.2d 706, 711 (Tex.1997). [HN4] A no- evidence
summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Jackson,
979 S.W.2d at 70-71. [*5] More than a scintilla of evidence exists when the evidence "rises to a level that
would enable reasonable and fair-minded people to differ
in their conclusions." Merrell Dow, 953 S.W.2d at 711.
In her first issue, Anderson contends the trial court
erred by granting TU's motion because she produced
more than a scintilla of summary judgment evidence on
each of the elements challenged by TU. TU alleged, in
part, that Anderson failed to produce evidence showing
that it had actual or constructive knowledge that the utility cover was defective before Anderson was injured.
After reviewing Anderson's summary judgment evidence, we agree.
[HN5] To recover for a premises defect, Anderson
must show that (1) TU had actual or constructive knowledge of some condition, (2) the condition posed an unreasonable risk of harm, (3) TU did not exercise reasonable care to reduce or eliminate the risk, and (4) TU's
failure to use such care proximately caused Anderson's
App. Def. 15
Page 4
2000 Tex. App. LEXIS 2878, *
injuries. See Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3
(Tex. 1996); Keetch v. Kroger, 845 S.W.2d 262, 264
(Tex. 1992). The existence of actual or constructive
knowledge of a premises defect [*6] is a threshold requirement for such a claim. Motel 6, 929 S.W.2d at 3.
In support of her response to TU's motion, Anderson
relied on excerpts from her deposition testimony, various
photographs taken soon after the accident, an affidavit
from Jim Easler, a supervisor in the City of Dallas Public
Works and Transportation Department, and an incident
report from the City of Dallas. Although we agree with
Anderson that her summary judgment evidence shows
that appellee owned and maintained the electric box, and
that TU was informed of the defective cover shortly after
Anderson's accident, we cannot agree that this evidence
creates a fact issue about whether TU knew of should
have known of the defect prior to Anderson's accident.
Anderson's argument, both in her response and on appeal, appears to be that TU's failure to produce information concerning the maintenance of the utility box and
cover or the identity of maintenance personal somehow
creates a fact issue regarding whether TU had actual or
constructive knowledge of the defect. We cannot agree.
Regardless of whether TU should have produced the
requested information, it did not. There is nothing in
Anderson's summary [*7] judgment evidence to suggest
that (1) TU created the defect; (2) knew of the defect and
negligently failed to remove it; or (3) the defect existed
for so long that it should have been discovered in the
exercise of ordinary care. See Keetch, 845 S.W.2d at 265.
Thus, we conclude that the trial court properly determined that Anderson failed to produce any evidence
showing that TU had actual or constructive knowledge of
the defective utility cover. We overrule Anderson's first
issue.
In her second issue, Anderson argues that because
"TU had a duty to exercise reasonable care with respect
to the inspection and maintenance of the utility box it
caused to be placed in the sidewalk," and "TU provided
no evidence that they did not breach that duty" summary
judgment was improper. We cannot agree. TU's motion
for summary judgment is pursuant to 166a(i). Thus, contrary to Anderson's suggestion, TU does not bear the
burden of producing evidence to show that it did not
breach its duty to Anderson. Rather, it was Anderson's
burden to present some evidence that TU breached its
duty to maintain and inspect the utility box. See Lampasas, 988 S.W.2d at 432- 33. Anderson [*8] failed to do
so.
We note that under this issue, Anderson again appears to argue that TU's alleged discovery abuses somehow provide a basis for reversing the summary judgment. However, Anderson does not bring an issue complaining that the trial court abused its discretion by fail-
ing to compel TU to respond to her discovery requests.
Even had she done so, on the basis of this record, we
would not agree. Although Anderson filed a motion to
compel the same day she filed her response to TU's motion for summary judgment, the motion to compel was
not filed until almost two years after she filed suit. Further, our record does not indicate that she ever obtained a
hearing or a ruling on her motion to compel. Under these
circumstances, we would not conclude that the trial court
erred in granting a properly filed, valid motion for summary judgment despite "outstanding discovery issues."
See Thompson v. Vinson & Elkins, 859 S.W.2d 617, 626
(Tex. App.-Houston [1st Dist.] 1993, writ denied). We
overrule Anderson's second issue.
In her third issue, Anderson contends that the trial
court erred by failing to address her complaint of spoilation prior to ruling on TU's motion for [*9] summary
judgment. Under this issue, Anderson argues that if the
trial court had done so, she would have been entitled to a
presumption that the evidence destroyed was favorable to
her, precluding summary judgment.
Because Anderson raised the issue of entitlement to
a presumption in her response to summary judgment, and
the trial court nonetheless granted summary judgment,
we presume the trial court considered and rejected
Anderson's claim because the presumption would have
precluded summary judgment. See Aguirre v. South Tex.
Blood & Tissue Ctr., 2 S.W.3d 454, 457 (Tex. App.-San
Antonio 1999, pet. denied). [HN6] We review the trial
court's decision to reject Anderson's request for a presumption for an abuse of discretion. Id.
[HN7] Spoliation is the improper destruction of evidence relevant to a case. Kang v. Hyundai Corp., 992
S.W.2d 499, 502 (Tex. App.-Dallas 1999, no pet.). [HN8]
The intentional destruction, or spoliation, of evidence
relevant to a case may, in the trial court's discretion, give
rise to a presumption that the destroyed evidence would
not have been favorable to its destroyer. Ordonez v.
M.W. McCurdy & Co., 984 S.W.2d 264, 273 [*10] (Tex.
App.-Houston [1st Dist.] 1998, no pet.). This presumption may be rebutted by a showing that the evidence in
question was not destroyed with fraudulent intent or purpose. Id. [HN9] When a party believes that another party
has improperly destroyed evidence, it may either move
for sanctions or request a spoliation presumption.
Trevino v. Ortega, 969 S.W.2d 950, 954 (Tex. 1998)
(Baker, J., concurring). The trial court must then determine whether sanctions or a presumption are justified.
This legal inquiry involves considering whether there
was: (1) a duty to preserve evidence; (2) the negligent or
intentional destruction of evidence; and (3) prejudice to
the nonspoliator's ability to present its case or defense.
Id.
App. Def. 16
Page 5
2000 Tex. App. LEXIS 2878, *
In support of her position that she is entitled to the
requested presumption, Anderson argues that TU was
notified of the accident and, therefore, should have anticipated a claim by Anderson. According to Anderson,
TU's failure to "preserve all maintenance records with
respect to the utility box into which Anderson fell, as
well as the lid to such box," entitles her to a presumption
that the evidence was unfavorable to TU. In her response
to summary [*11] judgment, however, Anderson failed
to provide any evidence that TU destroyed or "failed to
preserve" evidence relevant to the lawsuit. Nor does
Anderson direct this Court to any evidence that TU destroyed the maintenance records or the lid. TU's failure
to produce the maintenance reports or the lid in response
to a discovery request is not, in and of itself, evidence
that TU negligently or intentionally destroyed evidence. 2
Because Anderson failed to provide any evidence that
TU negligently or intentionally destroyed evidence
which it had a duty to preserve, we cannot conclude that
the trial court abused its discretion by rejecting Anderson's request for a spoliation presumption. See Aguirre, 2
S.W.3d at 458. We overrule Anderson's third issue.
pendix D to her brief. In the responses, TU stated
that were no maintenance records for the utility
box and that the whereabouts of the original
cover was unknown. Anderson did not, however,
include the responses in her summary judgment
evidence nor did she direct either the trial court or
this Court to the responses as proof that the maintenance records or the utility lid were destroyed
by TU. Thus, on appeal, we will not consider this
evidence in determining whether appellant provided evidence that TU negligently or intentionally destroyed evidence relevant to Anderson's
case. See Wilson v. Burford, 904 S.W.2d 628, 629
(Tex. 1995) (summary judgment evidence must
be attached to the summary judgment motion, response, or brief in support of the motion or response).
[*12]
judgment.
Accordingly, we affirm the trial court's
JOHN R. ROACH
JUSTICE
2 On appeal, Anderson included Responses to
Plaintiff's Second Request for Production in ap-
App. Def. 17
10610B
********** Print Completed **********
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18:08:57 EST
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Number of Lines: 261
Number of Pages:
Send To:
WRIGHT, LINDSAY
BAKER & MCKENZIE LLP
711 LOUISIANA ST STE 3400
HOUSTON, TX 77002-2746
App. Def. 18
Page 1
Analysis
As of: Oct 18, 2011
HEATHER APPEL, Plaintiff-Appellant, versus INSPIRE PHARMACEUTICALS,
INC., Defendant-Appellee.
No. 10-10960
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2011 U.S. App. LEXIS 11505; 112 Fair Empl. Prac. Cas. (BNA) 799; 24 Am. Disabilities Cas. (BNA) 1411
June 7, 2011, Filed
NOTICE:
PLEASE REFER TO FEDERAL RULES
OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [*1]
Appeal from the United States District Court for the
Northern District of Texas. USDC No. 3:09-CV-1281.
Appel v. Inspire Pharms., Inc., 712 F. Supp. 2d 538,
2010 U.S. Dist. LEXIS 42964 (N.D. Tex., 2010)
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant former employee sought judicial review of the decision by the
United States District Court for the Northern District of
Texas to grant summary judgment in favor of appellee
former employee, a drug company, in regards to her
claims of sex and pregnancy discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII)
and disability discrimination in violation of the Americans with Disabilities Act (ADA).
OVERVIEW: The district court held that the employee
was not qualified to perform the job of Territory Manager while under her medical condition, a requirement
under her title VII claim, and she was not a qualified
individual with a disability under the ADA. In regards to
her Title VII claim, the record did not support the employee's assertion that she could show direct discrimination. She misconstrued a supervisor's statement as evidence that she was terminated because of her pregnancy.
It was actually evidence that she was terminated because
she was incapable of performing her job functions because of medical complications specific to her pregnancy. She could not prove a prima facie case of discrimination using circumstantial evidence, because she
could not satisfy the second requirement of the McDonnell Douglas test. As to her ADA claim, she was not a
qualified individual with a disability. There were many
physical requirements essential to the Territory Manager
position that the employee was unable to perform, and
she had not put forth any competent summary judgment
evidence showing that she could perform those physical
requirements even with accommodation.
OUTCOME: The judgment of the district court was
affirmed.
CORE TERMS: territory, manager, disability, pregnancy, summary judgment, terminated, complications,
job description, pharmaceutical, pregnant, accommodation, sex, unqualified, medical condition, material fact,
disparate treatment, prima facie case, nondiscriminatory
reason, circumstantial, impairment, job duties, direct
evidence, unable to perform, qualification, supervisors,
surgery, doctor, rebut, genuine issue, nonmoving party
App. Def. 19
Page 2
2011 U.S. App. LEXIS 11505, *; 112 Fair Empl. Prac. Cas. (BNA) 799;
24 Am. Disabilities Cas. (BNA) 1411
Civil Procedure > Summary Judgment > Appellate Review > Standards of Review
General Overview
Civil Procedure > Appeals > Standards of Review > De
Novo Review
[HN1] An appellate court reviews a summary judgment
de novo, using the same standard as that employed by the
district court under Fed. R. Civ. P. 56.
Appropriateness
Genuine Disputes
Legal Entitlement
Materiality
[HN2] Summary judgment is warranted if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a).
Genuine Disputes
[HN3] In deciding a motion for summary judgment,
there is no genuine issue for trial if the record, taken as a
whole, could not lead a rational trier of fact to find for
the non-moving party.
Civil Procedure > Summary Judgment > Appellate Review > General Overview
Production & Proof > Nonmovants
Evidence > Procedural Considerations > Burdens of
Proof > Allocation
[HN4] In reviewing a grant of summary judgment, an
appellate court reviews the evidence in the light most
favorable to the nonmoving party, but conclusional allegations and unsubstantiated assertions may not be relied
on as evidence by the nonmoving party.
Labor & Employment Law > Discrimination > Gender
& Sex Discrimination > Coverage & Definitions >
Pregnancy & Parental Rights
Labor & Employment Law > Discrimination > Title VII
of the Civil Rights Act of 1964 > Coverage & Definitions > General Overview
[HN5] Title VII of the Civil Rights Act of 1964, 42
U.S.C.S. § 2000e et seq., prohibits intentional discrimination against any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin. 42 U.S.C.S. § 2000e-2(a). Discrimination
on the basis of sex includes discrimination on the basis
of pregnancy, childbirth, or related medical conditions.
42 U.S.C.S. § 2000e(k).
Proof > Allocation
Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof
Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Circumstantial & Direct Evidence
[HN6] Discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C.S. § 2000e et seq., can be established through direct or circumstantial evidence. Where a
plaintiff has not presented direct summary judgment evidence of discrimination, a court applies the burdenshifting framework in the McDonnell Douglas decision.
A plaintiff alleging disparate treatment must first prove a
prima facie case of discrimination by showing that: (1)
he is a member of a protected class, (2) he was qualified
for the position, (3) he suffered an adverse employment
action, and (4) others similarly situated were treated
more favorably.
Proof > Burden Shifting
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Discriminatory Conduct
Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burden Shifting
[HN7] In a case brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., once a
plaintiff has made a prima facie case, the employer must
provide some legitimate nondiscriminatory reason" for
the adverse action taken. If the employer provides a nondiscriminatory reason, the burden shifts to the plaintiff to
show a genuine issue of material fact that either (1) the
employer's proffered nondiscriminatory reason is a pretext for discrimination or (2) regardless of the nondis-
App. Def. 20
Page 3
criminatory reason, the discriminatory reason was a motivating factor in the employer's action.
§ 12101 et seq., prohibits discrimination against a qualified individual because of a disability in regard to job
application procedures, the hiring, advancement or discharge of employees, employee compensation, job training; and other terms, conditions, and privileges of employment. 42 U.S.C.S. § 12112(a).
Towns, Esq., Rodriguez, Davis, Ghorayeb, Gersch &
Towns, P.C., Dallas, TX.
For INSPIRE PHARMACEUTICALS, INCORPORATED, Defendant - Appellee: Barry Andrew Moscowitz, Senior Attorney, Thompson, Coe, Cousins &
Irons, L.L.P., Dallas, TX; Stephanie S. Rojo, Thompson,
Coe, Cousins & Irons, L.L.P. Austin, TX.
JUDGES: Before GARWOOD, SMITH, and STEWART, Circuit Judges.
OPINION BY: JERRY E. SMITH
OPINION
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Disabilities > Impairments > Major Life Activities
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Disabilities > Impairments > Substantial Limitation
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Disabilities > Record of Impairment
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Disabilities > Regarded With Impairment
[HN9] A person is disabled under the Americans with
Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., if
he (1) has a physical or mental impairment that substantially limits one or more of the major life activities, (2)
has a record of such impairment, or (3) is regarded as
having such an impairment. 42 U.S.C.S. § 12102(2). A
recognized disability is not sufficient for relief under the
ADA, however; a claimant must be a qualified individual
with a disability.
[HN10] See 42 U.S.C.S. § 12111(8).
[HN11] Under the Americans with Disabilities Act, 42
U.S.C.S. § 12101 et seq., an employee who cannot perform essential job requirements, even with accommodation, is not a qualified person with a disability.
COUNSEL: For HEATHER APPEL, Plaintiff - Appellant: Wilson C. Aurbach, Esq., Jeffrey S. Tolley, Cody L.
JERRY E. SMITH, Circuit Judge:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Heather Appel appeals a summary judgment in favor
of her employer, Inspire Pharmaceuticals, Inc. ("Inspire"), on her sex and pregnancy discrimination claim
and her disability discrimination claim. Finding no error,
we affirm.
I.
Appel was hired as a Territory Manager in April
2008 by Inspire, a pharmaceutical sales company. Territory Managers promote Inspire products to physicians,
managed care organizations, [*2] and other health care
providers.
In September 2008, Appel informed Inspire that she
was pregnant and that her pregnancy was considered
high-risk. Her physician provided Inspire with a document stating that Appel would be house-confined from
September 16, 2008, until the end of her pregnancy. On
September 11, 2008, Inspire terminated Appel and
posted her position for hire on September 23. Appel underwent a surgical procedure in September 2008, remained on short-term disability leave for three months,
and was formally terminated in December 2008. Her
position was filled in March 2009 by a non-pregnant
woman.
Appel sued, claiming (1) sex and pregnancy discrimination in violation of Title VII of the Civil Rights
Act of 1964 ("Title VII") and 42 U.S.C. § 2000e et seq.;
and (2) disability discrimination in violation of the
Americans with Disabilities Act ("ADA") and 42 U.S.C.
§ 12101 et seq. The district court granted summary
judgment to Inspire, holding that (1) Appel was not
qualified to perform the job of Territory Manager while
App. Def. 21
Page 4
under her medical condition, a requirement under her
title VII claim; and (2) she was not a qualified individual
with a disability under the ADA.
II.
[HN1] We review a [*3] summary judgment de
novo, "using the same standard as that employed by the
district court under Rule 56." Kerstetter v. Pac. Scientific
Co., 210 F.3d 431, 435 (5th Cir. 2000). [HN2] Summary
judgment is warranted "if the movant shows that there is
no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." FED.
R. CIV. P. 56(a). [HN3] There is no genuine issue for
trial "[i]f the record, taken as a whole, could not lead a
rational trier of fact to find for the non-moving party."
Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999).
[HN4] We review evidence in the light most favorable to
the nonmoving party, but conclusional allegations and
unsubstantiated assertions may not be relied on as evidence by the nonmoving party. See Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
A.
[HN5] Title VII prohibits intentional discrimination
"against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a). Discrimination on the
basis of sex includes discrimination "on the basis of
pregnancy, childbirth, or related [*4] medical conditions
. . . ." Id. § 2000e(k).
[HN6] Title VII discrimination can be established
through direct or circumstantial evidence. Laxton v. Gap
Inc., 333 F.3d 572, 578 (5th Cir. 2003). Where the plaintiff has not presented direct summary judgment evidence
of discrimination, we apply the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973): A plaintiff
alleging disparate treatment must first prove a prima
facie case of discrimination by showing that (1) he is a
member of a protected class; (2) he was qualified for the
position; (3) he suffered an adverse employment action;
and (4) others similarly situated were treated more favorably. Id. at 802.
[HN7] Once a plaintiff has made a prima facie case,
the employer must provide "some legitimate nondiscriminatory reason" for the adverse action taken. Id. at
802. If the employer provides a nondiscriminatory reason, the burden shifts to the plaintiff to show a genuine
issue of material fact that either (1) the employer's proffered nondiscriminatory reason is a pretext for discrimination or (2) regardless of the nondiscriminatory reason,
the discriminatory reason was a motivating factor in the
employer's action. See Alvarado v. Texas Rangers, 492
F.3d 605, 611 (5th Cir. 2007) [*5] (citation omitted).
The record does not support Appel's assertion that
she can show direct discrimination. She points to a
statement by one of her supervisors that she was fired
because he believed Apple could not perform all the duties in her job description as a territory manager because
of complications arising from her pregnancy. Appel misconstrues that statement as evidence that she was terminated because of her pregnancy: It is actually evidence
that she was terminated because she was incapable of
performing her job functions because of medical complications specific to her pregnancy. This is further evident
from the testimony of another of Appel's supervisors:
Q. Just so I understand correctly, if due
to the procedure, if she had miscarried, for
instance, and not been pregnant any
longer, and able to come back, you
wanted to have that opportunity for her; is
that right?
A. If she was able to perform her job
duties, then we would have been welcome
to have her back.
Q. I wasn't there at the time. When
you say complications, are you talking
about if she was no longer pregnant?
A. Well, if--my understanding, if she
was no longer--I mean, if this surgical
procedure did not work, if she [*6] was
no longer pregnant, then she would have
been able to--she would not need--she
would not have needed to be on bed rest
which would have prevented her from doing her job.
(Emphasis added).
There is nothing in the record that can be construed
as direct evidence that Appel was terminated because of
her pregnancy; rather, the record shows she was terminated because she could not perform her job duties owing to medical complications that were the result of her
pregnancy.1 Thus, Appel has no direct evidence of discrimination and must instead rely on circumstantial evidence.
1 Appel also points to statements showing that
Inspire waited until after her September surgery
to post a job listing because it would be willing to
rehire her if the surgery had gone poorly and she
were to miscarry her baby. Appel argues that
waiting for a miscarriage shows that Inspire
App. Def. 22
Page 5
plainly cared about her pregnancy status. Although waiting for a possible miscarriage might
appear unseemly, it is not direct evidence of discrimination. If the surgery had gone wrong and
Appel was no longer pregnant, she would not suffer from the medical complications that would
leave her unable to perform her job duties, so Inspire would [*7] have no reason to terminate her
employment--consistent with the other statements
made by Inspire.
Appel cannot prove a prima facie case of discrimination using circumstantial evidence, because she cannot
satisfy the second requirement of McDonnell Douglas:
that she was qualified for the position given the medical
restrictions placed by her physician during the high-risk
pregnancy. The job description for a Territory Manager
at Inspire includes the following:
Inspire's Territory Manager position is
considered an outside sales position which
requires the ability to physically call on
physicians in order to promote Inspire's
pharmaceutical products. A major component of the position includes detailing
the physicians regarding the products, answering questions and dropping off samples during these visits, which require a
signature in order to stay within compliance regulations, therefore requiring face
to face contact with the provider's officer.
The Territory Manager is also required to
call on pharmacies and other special customers.
The Territory Manager position requires the ability to receive sample shipments of three products along with all
promotional material which at the time
were [*8] being distributed to physician
offices. These boxes may weigh up to 40
lbs, each box needs to be opened and broken down into smaller allocations. All
materials/samples are then transferred into
the company vehicle for daily use.
Territory Managers are required to
have the ability to spend extended periods
of time behind the wheel of their company
vehicles. Drive time per Territory Manager will vary depending on the size and
demographics of the territory and scheduled rotating. Territory routing will usually consist of a 2-3 week call cycle requiring the face to face contact with each
office.
Many of these physical responsibilities would be
impossible for Appel, who had been ordered to remain at
home, in bed, for the duration of her pregnancy, rendering her unqualified for the position of Territory Manager.2 Inspire also presented evidence that these physical
aspects of the position were essential: Appel's supervisors testified that face-to-face promotion was necessary
in the pharmaceutical sales industry and that, without
having someone visit those of fices every day, sales
would decline in six to eight weeks.3
2 Appel claims that this job description should
not be accorded any credence, [*9] because "Inspire may have created this job description after
Appel was terminated or worse after Appel filed
her EEOC charge." She does not provide any
evidence beyond this allegation to substantiate
her conclusional claim that the document did not
accurately portray the job responsibilities of a
Territory Manager, nor does she rebut the evidence that shows these are the responsibilities she
performed in that job before she had her medical
complications. In her deposition, Appel admitted
that she had received this job description and that
she knew making face-to face visits was an essential function of her job.
3 Appel argues that Inspire's failure to fill her
vacant position until months after she had been
terminated cuts against Inspire's claim that faceto-face visits were necessary, buther argument is
unconvincing. Inspire's failure to find someone to
replace Appel has no bearing on the propriety of
terminating her employment--there could be
many reasons why it was unable to fill her position (Inspire claims that a hiring freeze was put
into place by the corporation before they could
find someone qualified for the position), none of
which would affect the determination that Appel
[*10] was unqualified for the job.
Appel argues that there were many aspects of her
job that she could accomplish even with her medical
limitations, but she cannot rebut the fact that she would
be unable to perform many of the physical responsibilities of a Territory Manager. Nor does she provide any
information to rebut Inspire's evidence that the physical
aspects of the position are essential to proper performance, be yond her own base declarations of such, none of
which rises to the level of creating a genuine dispute as
to a material fact.4 In sum, as a result of the medical
complications of her pregnancy, Appel was unqualified
for her position, so she cannot make a prima facie of
discrimination, and summary judgment on her Title VII
claim was proper.
App. Def. 23
Page 6
4 Appel does point to the situation of Jason Wisinki, another Inspire employee, who took a leave
of over ninety days without being terminated.
Appel does not, however, provide any evidence
to show that her situation was similar to that of
Wisinki's. To the contrary, there isevidence in the
record suggesting their situations were dissimilar.
As an initial matter, they held different formal
positions (Wisinski is described as a Sales Representative, [*11] but Appel was a Territory Manager). Additionally, Inspire suggests that Wisinski's leave was pursuant to a possible Family
Medical Leave Act requirement (we do not rely
on this to distinguish Wisinski's situation from
Appel's, because the record is bare on a possible
FMLA rationale, but we point to it as one possible difference Appel has not addressed because
she has in fact addressed no possible differences
or possible similarities between her situation and
Wisinski's).
B.
[HN8] The ADA prohibits discrimination against a
qualified individual because of a disability "in regard to
job application procedures, the hiring, advancement or
discharge of employees, employee compensation, job
training; and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). [HN9] A person is
disabled under the ADA if he (1) has a physical or mental impairment that substantially limits one or more of
the major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment.
Id. § 12102(2). A recognized disability is not sufficient
for relief under the ADA, however; a claimant must be a
"qualified individual with a disability." The relevant statute defines a qualified [*12] individual as
[HN10] an individual with a disability
who, with or without reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires. For the
purposes of this subchapter, consideration
shall be given to the employer's judgment
as to what functions of a job are essential,
and if an employer has prepared a written
description before advertising or interviewing applicants for the job, this description shall be considered evidence of
the essential functions of the job.
Id. § 12111(8). [HN11] An employee who cannot perform essential job requirements, even with accommodation, is not a qualified person with a disability.
Appel contends that her disability is an incompetent
cervix. Assuming without deciding that an incompetent
cervix is a disability within the meaning of the ADA,
Appel is still not a qualified individual with a disability.
As discussed above, the record shows that there are
many physical requirements essential to the Territory
Manager position that Appel was unable to perform, nor
has she put forth any competent summary judgment evidence showing that she could perform those physical
requirements even with accommodation.
C.
Appel [*13] argues that the district court granted
summary judgment on her Title VII claim sua sponte on
grounds not requested by the moving party. She contends
that Inspire's motion for summary judgment argued for
judgment on only two grounds--that there was no evidence of disparate treatment and no evidence of pretext-but the district court granted summary judgment primarily on the issue of Appel's lack of qualification for the
Territory Manager position--also the reason why we affirm the summary judgment.
Although it is true that the thrust of Inspire's motion
for summary judgment was on the issue of disparate
treatment, it raised the issue of Appel's qualifications.
For example, here is an excerpt from the introduction to
the motion:
An essential element of Plaintiff's job
function was to travel outside her home
and meet with various doctors in order to
provide doctors with information about
Inspire's pharmaceutical products. Plaintiff provided Inspire with medical documentation that specifically prohibited
Plaintiff from performing this essential
element of her employment as well as
several other elements of her position, and
it was only after this medical documentation was received that Inspire [*14] terminated Plaintiff's employment. Further,
at notimedid Plaintiff ever ask for a reasonable accommodation, nor could one
have been provided if requested given the
nature of Plaintiff's medical restriction as
mandated by her doctor. As such, Inspire's
decision to terminate Plaintiff's employment was based on non-discriminatory
and legitimate business needs and was not
discriminatory.
App. Def. 24
Page 7
Furthermore, the extensive briefing, along with the
motion for summary judgment and Appel's response to
the motion, included a discussion of whether Appel was
a "qualified individual with a disability" pursuant to the
ADA, an analysis that mirrors precisely the discussion of
whether Appel was qualified for the position under step
two of McDonnell Douglas.
Accordingly, the district court's decision regarding
Appel's qualifications was not made sua sponte. Rather,
the court, confronted with the same question in evaluating Appel's ADA claim, concluded that her medical condition rendered her unqualified to perform the job responsibilities of a Territory Manager--a factual conclusion that also warranted summary judgment on the Title
VII claim.
AFFIRMED.
App. Def. 25
Page 1
Positive
As of: Oct 18, 2011
HEATHER APPEL, Plaintiff, v. INSPIRE PHARMACEUTICALS, INC., Defendant.
Civil Action. No. 3:09-CV-1281-L
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS, DALLAS DIVISION
712 F. Supp. 2d 538; 2010 U.S. Dist. LEXIS 42964
April 30, 2010, Decided
April 30, 2010, Filed
SUBSEQUENT HISTORY: Motion for new trial denied by Appel v. Inspire Pharms., Inc., 2010 U.S. Dist.
LEXIS 85569 (N.D. Tex., Aug. 19, 2010)
Affirmed by Appel v. Inspire Pharms., Inc., 2011 U.S.
App. LEXIS 11505 (5th Cir. Tex., June 7, 2011)
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant employer filed
a motion for summary judgment in plaintiff former employee's action alleging pregnancy discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. §
2000e et seq., and disability discrimination under the
12101 et seq. Plaintiff filed a motion to strike portions of
a declaration and a motion for leave to file a sur-reply
brief.
OVERVIEW: Plaintiff, a territory manager, was terminated after her physician signed a certification stating
that plaintiff would be house-confined through the duration of her high risk pregnancy. Defendant maintained
that plaintiff was terminated because the medical limitations made it impossible for plaintiff to fulfill her job
duties, which included face-to-face sales calls, carrying a
bag, and being out in her territory. Plaintiff failed to establish a prima facie case of pregnancy discrimination.
There was no evidence of any disparate treatment of
plaintiff because she was pregnant. Moreover, plaintiff
presented no evidence that she could comply with the
physical components of her job description, and she presented no evidence to rebut defendant's evidence that the
physical components were essential functions of her job.
Although the court assumed that plaintiff's incompetent
cervix was a disability under the ADA, it held that plaintiff was not a qualified individual with a disability within
the meaning of 42 U.S.C.S. § 12111(8). Even if defendant had accommodated plaintiff by allowing her to
work from home, she still could not have fulfilled all the
essential requirements of her job.
OUTCOME: The court denied plaintiff's motion to
strike portions of a declaration. The court also denied
plaintiff's motion for leave to file a sur-reply brief in opposition to defendant's motion for summary judgment.
The court granted defendant's motion for summary
judgment.
CORE TERMS: disability, pregnancy, summary judgment, territory, job description, disabled, doctor's, prima
facie case, impairment, customer, matter of law, incompetent, pregnant, genuine, cervix, pain, sex, entitled to
judgment, pharmaceutical, pretext, declaration, legal
definition, nonmoving party, protected class, nondiscriminatory, circumstantial, accommodation, physiological, face-to-face, provider's
App. Def. 26
Page 2
712 F. Supp. 2d 538, *; 2010 U.S. Dist. LEXIS 42964, **
burden of proof at trial, summary judgment must be
granted.
Appropriateness
Genuine Disputes
[HN1] Summary judgment shall be rendered when 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 judgment as a
matter of law. Fed. R. Civ. P. 56(c). A dispute regarding
a material fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. When ruling on a motion for summary
judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving
party and resolve all disputed facts in favor of the nonmoving party. Further, a court may not make credibility
determinations or weigh the evidence in ruling on motion
for summary judgment.
Labor & Employment Law > Discrimination > Disparate Treatment > Coverage & Definitions
U.S.C.S. § 2000e et seq., prohibits discrimination on the
basis of race, color, religion, sex, or national origin. 42
U.S.C.S. § 2000e-2(a)(1). The terms "because of sex" or
"on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C.S. § 2000e(k).
Production & Proof > Absence of Essential Element of
Claim
[HN2] Once the moving party has made an initial showing that there is no evidence to support the nonmoving
party's case, the party opposing the motion must come
forward with competent summary judgment evidence of
the existence of a genuine fact issue. Mere conclusory
allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for
summary judgment. Unsubstantiated assertions, improbable inferences, and unsupported speculation are not
competent summary judgment evidence. The party opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner in which that evidence supports his claim. Fed. R.
Civ. P. 56 does not impose a duty on the court to sift
through the record in search of evidence to support the
nonmovant's opposition to the motion for summary
judgment. Only disputes over facts that might affect the
outcome of the suit under the governing laws will properly preclude the entry of summary judgment. Disputed
fact issues which are irrelevant and unnecessary will not
be considered by a court in ruling on a summary judgment motion. If the nonmoving party fails to make a
showing sufficient to establish the existence of an element essential to its case and on which it will bear the
[HN4] To survive a motion for summary judgment, a
plaintiff in a discrimination case under Title VII of the
Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq.,
must first establish a prima facie case of discrimination
by a preponderance of the evidence. Once this prima
facie case has been established, there is a presumption of
discrimination, and the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for
the challenged employment action. If such a showing is
made, the burden shifts back to the plaintiff to demonstrate that the articulated reason was merely a pretext for
intentional discrimination. The third step of the McDonnell Douglas test has been altered by the U.S. Supreme
Court's decision in Desert Palace, Inc. v. Costa. In light
of Desert Palace, the Fifth Circuit has modified the final
step of McDonnell Douglas. In order to survive summary
judgment under the modified McDonnell Douglas test, at
the final step, a plaintiff must offer sufficient evidence to
create a genuine issue of fact that either: (1) a defendant's
reason is not true, but is instead a pretext for discrimination, or (2) a defendant's reason, though true, is only one
of the reasons for its conduct and that another "motivating factor" is the plaintiff's protected characteristic.
& Sex Discrimination > Proof > Burdens of Proof >
Employee Burdens
App. Def. 27
Page 3
[HN5] After a sex discrimination case under Title VII of
the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq.,
reaches the pretext stage, the question to be decided for
the resolution of a motion for summary judgment is
whether a rational factfinder could find that the employer
intentionally discriminated against the plaintiff on the
basis of sex. A plaintiff can survive summary judgment
by producing evidence that creates a jury issue as to the
employer's discriminatory animus or the falsity of the
employer's legitimate nondiscriminatory explanation.
"Pretext-plus" is not required to support an inference of
retaliatory discrimination. A plaintiff's prima facie case,
combined with sufficient evidence to find that the employer's asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully
discriminated and may therefore be enough to prevent
summary judgment or judgment as a matter of law. This
showing, however, is not always enough to prevent
summary judgment if the record conclusively revealed
some other, nondiscriminatory reason for the employer's
decision, or if the plaintiff created only a weak issue of
fact as to whether the employer's reason was untrue and
there was abundant and uncontroverted independent evidence that no discrimination had occurred.
Appropriateness
Employee Burdens
[HN6] In the context of an unlawful sex discrimination
claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C.S. § 2000e et seq., summary judgment is inappropriate if the evidence taken as a whole (1) creates a fact
issue as to whether each of the employer's stated reasons
was what actually motivated the employer and (2) creates a reasonable inference that sex was a determinative
factor in the actions of which the plaintiff complains.
Employee Burdens
[HN7] To establish a prima facie case of sex discrimination under Title VII of the Civil Rights Act of 1964, 42
U.S.C.S. § 2000e et seq., a plaintiff must show: (1) she is
a member of a protected class; (2) she was qualified for
the position she sought; (3) she suffered an adverse employment action; and (4) others similarly situated but
outside the protected class were treated more favorably.
The plaintiff may also satisfy the fourth element by
showing that she was replaced by someone outside the
protected group.
[HN8] The Americans with Disabilities Act (ADA), 42
U.S.C.S. § 12101 et seq., is an antidiscrimination statute
designed to remove barriers that prevent qualified individuals with disabilities from enjoying employment opportunities available to persons without disabilities. The
ADA prohibits discrimination against a qualified individual because of a disability in regard to job application
procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training; and
other terms, conditions, and privileges of employment.
42 U.S.C.S. § 12112(a).
[HN9] A person may establish a claim of discrimination
under the Americans with Disabilities Act (ADA), 42
U.S.C.S. § 12101 et seq., either by presenting direct evidence or by using the indirect method of proof set forth
in McDonnell Douglas. To establish a prima facie case
of intentional discrimination under McDonnell Douglas,
a plaintiff must show that she: (1) suffers from a disability; (2) was qualified for the job; (3) was subject to an
adverse employment action; and (4) was replaced by a
non-disabled person or treated less favorably than nondisabled employees. The employer then must show a
legitimate, nondiscriminatory reason for its action. The
employee ultimately bears the burden of showing that the
employer's actions were motivated by considerations
prohibited by the ADA.
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Disabilities > General Overview
[HN10] A person is disabled under the Americans with
Disabilities Act, 42 U.S.C.S. § 12101 et seq., if she (1)
has a physical or mental impairment that substantially
limits one or more of the major life activities, (2) has a
record of such impairment, or (3) is regarded as having
such an impairment. 42 U.S.C.S. § 12102(2). The court
must interpret this definition strictly.
App. Def. 28
Page 4
U.S.C.S. § 12101 et seq., does not relieve a disabled employee or applicant from the obligation to perform the
essential functions of the job. To the contrary, the ADA
is intended to enable disabled persons to compete in the
workplace based on the same performance standards and
requirements that employers expect of persons who are
not disabled.
U.S.C.S. § 12101 et seq., defines a "qualified individual"
as an individual with a disability who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or desires. For the purposes of the ADA, consideration shall be given to the employer's judgment as to
what functions of a job are essential, and if an employer
has prepared a written description before advertising or
interviewing applicants for the job, this description shall
be considered evidence of the essential functions of the
job. 42 U.S.C.S. § 12111(8).
COUNSEL: [**1] For Heather Appel, Plaintiff: Cody L
Towns, LEAD ATTORNEY, Rodriguez Ghorayeb &
Gersch LLP, Dallas, TX; Wilson C Aurbach, Rodriguez
& Ghorayeb LLP, Dallas, TX.
For Inspire Pharmaceuticals Inc, Defendant: Barry A
Moscowitz, LEAD ATTORNEY, Rachael Chong Walters, Thompson Coe Cousins & Irons, Plaza of the
Americas, Dallas, TX.
JUDGES: Sam A. Lindsay, United States District Judge.
OPINION BY: Sam A. Lindsay
OPINION
[*541] MEMORANDUM OPINION AND ORDER
Before the court are: (1) Defendant's Motion for
Summary Judgment, filed March 5, 2010; (2) Plaintiff's
Motion to Strike Portions of the Declaration of Mark
Puwal, filed March 26, 2010; and (3) Plaintiff's Motion
for Leave to File Sur-Reply Brief in Opposition to Defendant's Motion for Summary Judgment, filed April 16,
2010. After carefully considering the motions, briefs,
record, and applicable law, the court grants Defendant's
Motion for Summary Judgment; denies Plaintiff's Motion to Strike Portions of the Declaration of Mark Puwal;
and denies Plaintiff's Motion for Leave to File Sur-Reply
Brief in Opposition to Defendant's Motion for Summary
Judgment.
I. Factual and Procedural History
Plaintiff Heather Appel ("Plaintiff" or "Appel") filed
her Original Complaint on July 6, 2009. [**2] Appel
asserts claims of gender and pregnancy discrimination, in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. ("Title VII"), and disability discrimination, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), against
Defendant Inspire Pharmaceuticals, Inc. ("Defendant" or
"Inspire").
The court sets forth those facts that are not in dispute. Inspire is a pharmaceutical company that sells
products for ophthalmic and pulmonary conditions.
Plaintiff was hired by Defendant in April 2008 as a Territory Manager. Appel began informing individuals at
Inspire that she was pregnant and that her pregnancy was
considered high risk in September 2008. Appel's physician, Dr. Ezell S. Autry, signed a Health Care Provider
Certification form dated September 8, 2008. That form
states that Plaintiff "will be house confined from 9/16/08
through the duration of [her] pregnancy." Def.'s App. 42.
On September 11, 2008, Defendant terminated Plaintiff's
employment. Appel underwent a surgical procedure on
September 16, 2008, which was successful. Defendant
posted Plaintiff's position for hire on September 23,
2008. Appel remained on short-term [**3] disability for
three months, and her official termination date was December 15, 2008. Appel's position was filled on March
16, 2009, by a nonpregnant woman.
II. Legal Standard
[HN1] Summary judgment shall be rendered when
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 judgment
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a
material fact is "genuine" if the evidence is such that a
nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
When ruling on a motion for summary judgment, the
court is required to view all facts and inferences in the
light most favorable to the nonmoving party and resolve
all disputed facts in favor of the nonmoving party.
Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540
(5th Cir. 2005). Further, a court "may not make credibility determinations or weigh the evidence" in ruling
App. Def. 29
Page 5
[**4] on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.
Ct. 2097, 147 L. Ed. 2d 105 (2000); [*542] Anderson,
477 U.S. at 254-55.
[HN2] Once the moving party has made an initial
showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must
come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Mere conclusory
summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325
(5th Cir. 1996). Unsubstantiated assertions, improbable
inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr,
19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S.
871, 115 S. Ct. 195, 130 L. Ed. 2d 127 (1994). The party
opposing summary judgment is required to identify specific evidence in the record and to articulate the precise
manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on
the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary [**5] judgment. Id.; see also Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th
Cir.), cert. denied, 506 U.S. 832, 113 S. Ct. 98, 121 L.
Ed. 2d 59 (1992). "Only disputes over facts that might
affect the outcome of the suit under the governing laws
will properly preclude the entry of summary judgment."
Anderson, 477 U.S. at 248. Disputed fact issues which
are "irrelevant and unnecessary" will not be considered
by a court in ruling on a summary judgment motion. Id.
If the nonmoving party fails to make a showing sufficient
to establish the existence of an element essential to its
case and on which it will bear the burden of proof at trial,
summary judgment must be granted. Celotex, 477 U.S. at
322-23.
III. Analysis
Defendant contends that it is entitled to judgment as
a matter of law on all of Plaintiff's claims. With respect
to her pregnancy discrimination claim, Inspire contends
that there is no evidence of disparate treatment or pretext. Inspire argues that Plaintiff's disability claim fails
because she is not disabled or a qualified individual with
a disability. It further argues that she never requested an
accommodation or that any requested accommodation
was not reasonable. Finally, Defendant contends that
[**6] Plaintiff's claimed damages are limited because she
failed to mitigate them by seeking other, comparable
employment.
Plaintiff contends that there is both direct and circumstantial evidence of pregnancy discrimination and
that the evidence supports a finding that Inspire's articulated reasons for termination are merely a pretext for
unlawful discrimination. She contends that she has a
legal disability and was a qualified individual with a disability. Finally, Appel argues that Inspire is not entitled
to summary judgment on its affirmative defense of her
failure to mitigate damages.
A. Pregnancy Discrimination
Plaintiff alleges that Defendant discriminated
against her because of her pregnancy. She contends that
Inspire fired her when it learned that she was pregnant
and that it further held her job open until her surgery
determined whether she would miscarry the pregnancy.
1. Legal Standard under Title VII
[HN3] Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
"The [*543] terms 'because of sex' or 'on the basis of
sex' include, but are not limited to, because of or on the
basis of pregnancy, [**7] childbirth, or related medical
conditions . . . ." 42 U.S.C. § 2000e(k).
[HN4] To survive a motion for summary judgment,
a plaintiff in a Title VII discrimination case must first
establish a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d
207 (1981). Once this prima facie case has been established, there is a presumption of discrimination, and the
burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 80204. If such a showing is made, the burden shifts back to
the plaintiff to demonstrate that the articulated reason
was merely a pretext for intentional discrimination. Id.
The third step of the McDonnell Douglas test has
been altered by the Supreme Court's decision in Desert
Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156
L. Ed. 2d 84 (2003) (holding that in Title VII cases, the
mixed-motives theory of discrimination is available in
cases with circumstantial evidence of discrimination). In
light of Desert Palace, the Fifth Circuit has modified the
final step of McDonnell Douglas. Keelan v. Majesco
Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005). [**8]
In order to survive summary judgment under the modified McDonnell Douglas test, at the final step, a plaintiff
must offer sufficient evidence to create a genuine issue
of fact that either: (1) a defendant's reason is not true, but
App. Def. 30
Page 6
is instead a pretext for discrimination, or (2) a defendant's reason, though true, is only one of the reasons for
its conduct and that another "motivating factor" is the
plaintiff's protected characteristic. Id.; see also Smith v.
Xerox Corp., 602 F.3d 320, 2010 U.S. App. LEXIS 6190,
2010 WL 1052837, *4-5 (5th Cir. Mar. 24, 2010).
[HN5] After a Title VII case reaches the pretext
stage, the question to be decided for the resolution of a
motion for summary judgment is whether a rational factfinder could find that the employer intentionally discriminated against the plaintiff on the basis of sex. St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.
Ct. 2742, 125 L. Ed. 2d 407 (1993). A "plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the employer's discriminatory animus or the falsity of the employer's legitimate nondiscriminatory explanation." Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 897 (5th Cir. 2002), cert. denied, 539
U.S. 926, 123 S. Ct. 2572, 156 L. Ed. 2d 602 (2003).
"Pretext-plus" is not required [**9] to support an inference of retaliatory discrimination. Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000). "[A]
plaintiff's prima facie case, combined with sufficient
evidence to find that the employer's asserted justification
is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated," and may therefore
be enough to prevent summary judgment or judgment as
a matter of law. See Reeves, 530 U.S. at 148; Sandstad,
309 F.3d at 897. This showing, however, is not always
enough to prevent summary judgment "if the record conclusively revealed some other, nondiscriminatory reason
for the employer's decision, or if the plaintiff created
only a weak issue of fact as to whether the employer's
reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had
occurred." Reeves, 530 U.S. at 148. On the other hand,
[HN6] in the context of an unlawful discrimination or
retaliation claim, summary judgment is [*544] inappropriate "if the evidence taken as a whole (1) creates a fact
issue as to whether each of the employer's stated reasons
was what actually motivated the employer and (2) creates a reasonable inference that [**10] [sex] was a determinative factor in the actions of which plaintiff complains." Vadie v. Mississippi State Univ., 218 F.3d 365,
373 n. 23 (5th Cir.), reh'g denied, 232 F.3d 212 (5th Cir.
2000), cert. denied, 531 U.S. 1113, 121 S. Ct. 859, 148 L.
Ed. 2d 772 (2001) (quoting Rhodes v. Guiberson Oil
Tools, 75 F.3d 989, 994 (5th Cir. 1996)) (en banc).
2. Analysis
[HN7] To establish a prima facie case of sex discrimination under Title VII, Plaintiff must show: "(1) she
is a member of a protected class; (2) she was qualified
for the position she sought; (3) she suffered an adverse
employment action; and (4) others similarly situated but
outside the protected class were treated more favorably."
Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir.
2007) (citations omitted). Plaintiff may also satisfy the
fourth element by showing that she was replaced by
someone outside the protected group. McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (footnote
omitted).
Defendant contends that Plaintiff cannot establish a
prima facie case of pregnancy discrimination because
there is no evidence of disparate treatment of employees
outside the protected class. Plaintiff responds that Defendant misstates the legal standard and that there
[**11] is direct and circumstantial evidence of pregnancy
discrimination.
As evidence of direct discrimination, Plaintiff points
to comments made by Defendant's Senior Vice-President
of Sales, Gerald W. St. Peter, and its National Sales Director for the Western Division, Mark Puwal. She also
argues that Defendant admits that it would have reconsidered her termination if she miscarried her pregnancy.
Plaintiff also points to another employee, Jason Wisinksi,
who she contends took more than ninety days absence
from the company to take care of his wife who had brain
cancer. She contends that although he took more than
ninety days off, Defendant did not fire him.
The parties blur the distinction between Plaintiff's
pregnancy and the limitations her high-risk pregnancy
placed upon her job. There is no direct evidence that
Defendant fired Plaintiff because she was pregnant. Defendant maintains that she was terminated because the
medical limitations required by her physician made it
impossible for her to fulfill her job duties. The testimony
regarding her surgical procedure and possible miscarriage is stronger; Defendant's employees did admit that
Plaintiff would not have been fired if she was not [**12]
pregnant. This testimony, however, is not direct evidence
of any animus or discrimination but rather reflects the
limitations on Plaintiff in fulfilling her job responsibilities during her home confinement for the duration of her
high-risk pregnancy. Defendant also responds that Plaintiff has failed to present evidence that her circumstances
were the same as Wisinski's because she cannot state
whether he was legally entitled to twelve weeks of pay
under the Family and Medical Leave Act.
With respect to a circumstantial case of pregnancy
discrimination, this is a closer call. Plaintiff has shown
that she was pregnant, her employment was terminated,
and she was replaced by a person outside the protected
class. The determinative issue is whether Plaintiff was
qualified for her job with the medical restrictions placed
upon her by her physician.
App. Def. 31
Page 7
Defendant contends that it had to terminate Plaintiff's employment when it received her doctor's note stating that she would be confined to her home throughout
[*545] her pregnancy. It argues that she could not perform her job responsibilities from home. Defendant
points to the Territory Manager job description, which
states:
Inspire's Territory Manager position
[**13] is considered an outside sales position which requires the ability to physically call on physicians in order to promote Inspire's pharmaceutical products. A
major component of the position includes
detailing the physicians regarding the
products, answering questions and dropping off samples during these visits,
which require a signature in order to stay
within compliance regulations, therefore
requiring face to face contact with the
provider's officer. The Territory Manager
is also required to call on pharmacies and
other special customers.
responsibilities in light of her physician's evaluation of
her condition. St. Peter also testified that face-to-face
promotion is necessary in the pharmaceutical industry
and that nonpersonal promotion does not work long term
in the business. He testified that the "number one powerful driver of sales" was "having somebody in the field
visiting those offices every day," and that without it,
sales would decline in six to eight weeks. Id. at 48.
Plaintiff responds that she could perform her job responsibilities even while restricted to her home. She contends that she had a company computer [**15] and a
home office, in which she could communicate with doctors and use her company e-mail. She argues that she had
a mobile "stat" device, which she could use to record
sales information about doctors in her territory. Plaintiff
also points to the first page of the job description of Territory Manager. Id. at 4. On that page, Inspire listed under the heading of "general responsibilities/decision
making authority" the following duties:
Sells products to physicians, managed
care organizations, and other healthcare
providers. Develops local business plan to
increase market share by outlining tactics,
activities and resources. Demonstrates
thorough knowledge of Inspire products,
competitor products and product objectives.
The Territory Manager position requires the ability to receive sample shipments of three products along with all
promotional material which at the time
were being distributed to physician offices. These boxes may weigh up to 40
lbs, each box needs to be opened and broken down into smaller allocations. All
materials/samples are then transferred into
the company vehicle for daily use.
Utilizes customer-focused selling
techniques, continually assessing the
knowledge of the customer and strategy to
maintain high customer intimacy and customer knowledge of Inspire products. Actively seeks and displays knowledge of
key customers in territory.
Territory Managers are required to
have the ability to spend extended periods
of time behind the wheel of their company
vehicles. Drive time per Territory Manager will vary depending on the size and
demographics of the territory and scheduled rotating. Territory routing [**14]
will usually consist of a 2 - 3 week call
cycle requiring the face to face contact
with each office.
Def.'s App. 5. Defendant contends that the decision to
terminate Plaintiff's employment was made by Puwal
because he determined that it was not feasible to have a
territory go without a Territory Manager for six to nine
months and that Plaintiff was not able to fulfill her job
responsibilities, which included face-to-face calls with
physicians, carrying a bag, and being out in her territory.
Defendant also points to the testimony of St. Peter, who
agreed with Puwal that Plaintiff could not fulfill her job
[*546] Develops and delivers informative sales presentations based on
customer needs. Develops creative sales
strategies to reach "hard-to-see" doctors/"hard-to-work" accounts. Works collectively with other representatives
[**16] in arranging speakers, displays and
special programs. Positively impacts sales
in territory. Calls on retail pharmacies and
other special customers. Some travel required.
Id.
Appel states that she could have directly communicated with physicians through e-mail and phone calls and
that she could have sent them sample request cards. She
contends that she could have done "e-detailing," which
App. Def. 32
Page 8
she describes as video recording herself talking about
new drugs and studies and then e-mailing the video to
doctors in her territory. She states that she could have
studied new drugs and disseminated sales materials
throughout the region to assist other sales representatives. She contends that because she was working with
doctors and medical professionals, they would have understood her medical limitations and could have continued to work with her while she was on bed rest.
Principal Financial Group, Inc., 93 F.3d 155, 161 (5th
Ed. 2d 515 (1996). The ADA prohibits discrimination
against a qualified individual because of a disability "in
regard to job application procedures, the hiring, advancement, [*547] or discharge of employees, employee compensation, job training; and other terms, conditions, and privileges of employment." 42 U.S.C. §
12112(a).
The court determines that Plaintiff has failed to
prove a prima facie case of pregnancy discrimination.
First, there is no evidence of any disparate treatment of
Appel because she was pregnant. Defendant points to the
job description of Territory Manager and the statement
from St. Peter that after a few weeks, nondirect contact
would [**17] lead to a decline in sales. There is no evidence that any nonpregnant person was allowed to take
an extensive leave of absence that would prevent them
from making sales calls. See Garcia v. Woman's Hosp. of
Texas, 143 F.3d 227, 231 (5th Cir. 1998). Moreover,
while Plaintiff points to certain aspects of her job that
she could continue to do, she simply does not explain
how she could perform other parts of the job that Defendant deems essential, including making face-to-face contact in provider's offices, lifting, opening, and sorting
through forty-pound boxes, and spending extensive
amounts of time behind the wheel of company vehicles.
While her argument focuses on the intellectual aspect of
her job, Appel simply fails to show how she could comply with the physical components of her job description.
Moreover, she presents no evidence to rebut Defendant's
evidence that the physical components are essential functions of her job. The court therefore finds that Appel was
not "qualified" to perform the job of Territory Manager
while under the medical restrictions placed upon her by
her doctor. Defendant is therefore entitled to judgment as
a matter of law on Plaintiff's Title VII pregnancy [**18]
discrimination claim.
[HN9] A person "may establish a claim of discrimination under the ADA either by presenting direct evidence [**19] or by using the indirect method of proof
set forth in McDonnell Douglas . . . ." Seaman v. CSPH,
Inc., 179 F.3d 297, 300 (5th Cir. 1999). To establish a
prima facie case of intentional discrimination under
McDonnell Douglas, a plaintiff must show that she "(1)
suffers from a disability; (2) was qualified for the job; (3)
was subject to an adverse employment action, and (4)
was replaced by a non-disabled person or treated less
favorably than non-disabled employees." Id. The employer then "must show a legitimate, nondiscriminatory
reason for its action." Id. "The employee ultimately bears
the burden of showing that the employer's actions were
motivated by considerations prohibited by the statute."
Id.
B. Disability Discrimination
Defendant argues that Appel does not have a legal
disability as defined by the ADA and that she is not a
qualified individual with a disability. It contends that it
therefore had no duty to accommodate her alleged disability.
Defendant also moves for summary judgment of
Plaintiff's disability discrimination claim brought pursuant to the ADA. Plaintiff contends that her disability is
an incompetent cervix that is approximately half of its
normal size and that creates high-risk pregnancies. Defendant argues that Plaintiff is neither disabled nor a
qualified individual with a disability and that it had no
duty to accommodate her.
1. Legal Standard under the ADA
[HN8] The ADA is an antidiscrimination statute designed to remove barriers that prevent qualified individuals with disabilities from enjoying employment opportunities available to persons without disabilities. Taylor v.
[HN10] A person is disabled under the ADA if she
(1) has a physical or mental impairment that substantially
limits one or more of the major life activities, (2) has a
record of such impairment, or (3) is regarded as having
such an impairment. 42 U.S.C. § 12102(2). The court
must interpret this definition strictly. Carmona v. Southwest Airlines Co., 604 F.3d 848, 2010 U.S. App. LEXIS
8408, 2010 WL 1614504, *6 (5th Cir. 2010) (citations
omitted). Appel contends that her disability is an incompetent cervix and that [**20] this qualifies as a disability
under the ADA.
2. Analysis
a. Disability
Defendant argues that pregnancy and related medical conditions are not considered disabilities under the
ADA. It contends that the regulations specifically exclude pregnancy as a physical impairment that qualifies
as a disability under the ADA. See Villarreal v. J.E.
Merit Constructors., Inc., 895 F. Supp. 149, 152 (S.D.
Tex. 1995) ("[C]onditions, such as pregnancy, that are
not the result of a physiological disorder are not impairments.") (quoting 29 C.F.R. 1630). It also cites several
App. Def. 33
Page 9
cases that hold that pregnancy and some complications
of pregnancy are not disabilities under the ADA. See
Gorman v. Wells Mfg. Corp., 209 F. Supp. 2d 970, 976
(S.D. Iowa 2002), aff'd, 340 F.3d 543 (8th Cir. 2003)
(holding that plaintiff's pregnancy-related nausea, vomiting, dizziness, severe headaches, and fatigue did not
qualify as disabilities under the ADEA); Johnson v. A.P.
Prods., Ltd., 934 F. Supp. 625, 627 (S.D.N.Y. 1996)
[**21] ("[P]regnancy and related medical conditions are
not disabilities under the ADA."); LaCoparra v. Pergament Home Ctrs., Inc., 982 F. Supp. 213, 228 (S.D.N.Y.
1997) (holding that "pregnancy-related complications
usually will not qualify a woman for ADA protection"
and finding no disability where plaintiff had a history of
infertility, a prior miscarriage, and spotting and cramping).
Plaintiff responds that she does not contend that her
pregnancy is a disability but that her incompetent cervix
meets the legal definition of "disability." She cites an
unpublished decision from another district court holding
than an incompetent cervix is a disability under the
ADA. Soodman v. Wildman, Harrold, Allen & Dixon,
1997 U.S. Dist. LEXIS 1495, 997 WL 106257, *6 (N.D.
Ill. Feb. 10, 1997). Plaintiff also cites several cases that
acknowledge that the condition of pregnancy is not a
disability but that physiological disorders relating to
pregnancy can be. See Hernandez v. City of Hartford,
959 F. Supp. 125, 130 [*548] (D. Conn. 1997) (noting
that a "pregnancy-related condition can constitute a disability within the meaning of the ADA" and holding that
there was a genuine issue of material fact concerning
whether plaintiff's premature [**22] labor qualified as a
physiological disorder rather than a condition) (quotation
and citation omitted); Gabriel v. City of Chicago, 9 F.
Supp. 2d 974, 980-82 (N.D. Ill. 1998) (noting that "pregnancy-induced ailments and complications may constitute physical impairments" and holding that back pain,
stomach pain, and swelling could constitute a physiological disorder of the reproductive system and denying
summary judgment); Patterson v. Xerox Corp., 901 F.
Supp. 274, 278 (N.D. Ill. 1995) (denying motion to dismiss and holding that severe back pain related to pregnancy could meet legal definition of disability); Darian
v. Univ. of Massachusetts Boston, 980 F. Supp. 77, 87
(D. Mass. 1997) (holding that plaintiff with severe pelvic
bone pain, uterine contractions and irritation of the
uterus, uterine pain, and back pain had a legal disability
under the ADA). Plaintiff further argues that reproduction has been recognized by the Supreme Court as a major life activity. Bragdon v. Abbott, 524 U.S. 624, 629,
118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998) ("[T]he Rehabilitation Act regulations support the inclusion of reproduction as a major life activity, since reproduction could
not be regarded as any less important than working or
[**23] learning.").
The court has carefully reviewed the parties' arguments. It agrees with Defendant that pregnancy alone is
not a disability under the ADA, but it finds that in this
case, where Plaintiff contends that she has a physical
impairment that significantly limits her reproductive
ability to carry a normal pregnancy, her incompetent
cervix could meet the legal definition of "disability" under the ADA. The court, therefore, assumes, without
deciding, that Plaintiff is disabled under the ADA.
b. Qualified Individual with a Disability
Defendant argues that even if Plaintiff's incompetent
cervix meets the legal definition of disability she still
was not a qualified individual under the law because she
could not meet the job requirements of Territory Manager. It argues that a disabled employee must still perform the essential obligations of her job:
[HN11] [T]he ADA does not relieve a
disabled employee or applicant from the
obligation to perform the essential functions of the job. To the contrary, the ADA
is intended to enable disabled persons to
compete in the workplace based on the
same performance standards and requirements that employers expect of persons
who are not disabled.
Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 808
(5th Cir. 1997), [**24] cert. denied, 522 U.S. 1115
(1998) (quoting 29 C.F.R. § 1630, App. Background
(1996)). It contends that an employee who cannot perform essential job requirements, even with accommodation, is not a qualified individual with a disability.
Plaintiff responds that she is a qualified individual
with a disability. She points to the Puwal affidavit, which
states that she was qualified for several positions with
other pharmaceutical companies. She also argues that she
was able to fulfill the essential requirements of her job,
and cites the various examples of activities she could
have continued even while confined to her home. Appel
also questions the job description included with Defendant's motion for summary judgment.
[HN12] The statute defines a "qualified individual"
as:
an individual with a disability who, with
or without reasonable accommodation,
can perform the essential functions of the
employment position that such individual
holds or desires. For the purposes [*549]
of this subchapter, consideration shall be
given to the employer's judgment as to
App. Def. 34
Page 10
what functions of a job are essential, and
if an employer has prepared a written description before advertising or interviewing applicants for the job, [**25] this description shall be considered evidence of
the essential functions of the job.
42 U.S.C. § 12111(8). The court has considered Inspire's
written job description for the Territory Manager as set
forth above. To the extent Plaintiff questions the job description, the court finds that Plaintiff admitted in her
deposition to receiving the job description and that she
knew that spending time behind the wheel and making
in-person visits were essential functions of her job.
The court has already determined that for the purposes of Title VII Plaintiff is not qualified because she
could not perform all of the essential requirements of
Territory Manager. Even if Defendant had accommodated Plaintiff fully as set forth in her brief by allowing
her to work from home, make telephone calls, and "edetail" the physicians in her territory, she still could not
have fulfilled all the essential requirements of Territory
Manager, which required driving, lifting, and having
face-to-face meetings at doctor's offices and pharmacies.
Accordingly, the court finds that there is not a genuine
issue of material fact whether Plaintiff was a qualified
individual with a disability pursuant to the ADA, and
Defendant [**26] is entitled to judgment as a matter of
law on Plaintiff's ADA claim.
IV. Other Motions
Also pending are two motions filed by Plaintiff, a
motion to strike portions of the Puwal declaration and a
motion seeking leave to file a surreply. The court denies
both. Plaintiff's objections to the Puwal declaration relate
to his statements about other available jobs. The court
did not rely on this evidence to find that Defendant is
entitled to judgment as a matter of law on Plaintiff's
claims. With respect to Plaintiff's motion for leave to file
a surreply, the court frowns on surreplies and finds that
Plaintiff has not shown that there are exceptional or extraordinary circumstances justifying such a pleading. See
Scheduling Order P 4 (Oct. 2, 2009).
V. Conclusion
For the foregoing reasons, the court grants Defendant's Motion for Summary Judgment; denies Plaintiff's
Motion to Strike Portions of the Declaration of Mark
Puwal; and denies Plaintiff's Motion for Leave to File
Sur-Reply Brief in Opposition to Defendant's Motion for
Summary Judgment.
It is so ordered this 30th day of April, 2010.
/s/ Sam A. Lindsay
Sam A. Lindsay
United States District Judge
App. Def. 35
Page 1
AQUADUCT, L.L.C., Appellant v. TRAVIS J. McELHENIE AND WIFE, LISA
CHRISTIAN McELHENIE, AND NORTH AMERICAN MORTGAGE COMPANY, Appellees
NO. 14-02-00708-CV
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
116 S.W.3d 438; 2003 Tex. App. LEXIS 7862; 52 U.C.C. Rep. Serv. 2d (Callaghan) 191
September 9, 2003, Rendered
September 9, 2003, Opinion Filed
PRIOR HISTORY: [**1] On Appeal from the 190th
District Court. Harris County, Texas. Trial Court Cause
No. 00-43229.
DISPOSITION: Affirmed.
COUNSEL: For Appellant: H. Miles Cohn, Houston,
TX.
For Appellees: Bradford W. Irelan, Houston, TX. E. John
Gorman, Houston, TX. G.P. Matherne, Houston, TX.
JUDGES: Panel consists of Justices Yates, Hudson, and
Seymore.
OPINION BY: Charles W. Seymore
OPINION
[*440] Appellant Aquaduct, L.L.C. challenges the
trial court's finding that it authorized its loan servicing
agent to receive full payment of a mortgage note and the
trial court's award of attorney's fees to appellee, North
American Mortgage Company. We affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
In November 1996, Travis McElhenie and Linda
Christian ("the McElhenies") 1 executed a promissory
note for $ 28,045.22 in favor of Millennium Interests,
Ltd. ("the McElhenie Note") to purchase a homestead.
The McElhenie Note required the McElhenies, as mortgagors, to repay Millennium Interests, as mortgagee,
"both principal and interest" at 10% annually in "360
monthly principal and interest installments of $ 216.12
per month," and a tax escrow fee of $ 15 per month. The
first installment was due on November 1, 1996, followed
by successive installments payable on the first of each
month "until the full amount of the consideration of principal and interest is paid." To secure this mortgage [**2]
debt, the McElhenies signed a deed of trust ("the Millennium Deed") that same month, granting Millennium Interests a vendor's lien and a deed-of-trust lien in the
property. Millennium recorded this deed. Neither the
McElhenie Note nor the Millennium Deed established
any penalty for early payment of the full amount owing
on the mortgage debt.
1 The record shows Travis McElhenie married
Linda Christian shortly after November 1996, and
she assumed his surname.
In April 1997, Millennium transferred the McElhenie Note to Aquaduct, L.L.C., together with the liens
securing the McElhenies' mortgage debt. 2 The transfer of
lien instrument instructed the Harris County clerk's office
to return the original transfer to Gibraltar Mortgage Corporation ("Gibraltar") after filing. Aquaduct appointed
Gibraltar as its loan servicing agent and authorized Gibraltar to collect monthly payments from the McElhenies
on the McElhenie Note. As the loan servicing agent, Gibraltar collected principal and interest payments from the
McElhenies, [**3] accounted for that money to
Aquaduct each month, and forwarded the payments to
Aquaduct each month.
2 Several other notes were transferred from Millennium to Aquaduct at this time, but those notes
are not the subject of this appeal.
App. Def. 36
Page 2
116 S.W.3d 438, *; 2003 Tex. App. LEXIS 7862, **;
52 U.C.C. Rep. Serv. 2d (Callaghan) 191
In September 1998, the McElhenies refinanced their
mortgage through National Mortgage Link, I Ltd. ("National Mortgage Link") by renewing and extending the
McElhenie Note. To do so, the McElhenies executed a
deed of trust naming National Mortgage Link as the
beneficiary and a renewal and extension rider accompanying the deed of trust ("Renewed McElhenie Note").
The deed of trust was recorded. In refinancing their
mortgage, the McElhenies agreed to pay National Mortgage $ 86,850, representing the amount they owed under
the Renewed McElhenie Note. To secure the Renewed
McElhenie Note, the McElhenies encumbered [*441]
their homestead with a lien in favor of National Mortgage Link.
(1) Is there evidence to support the trial court's finding that Aquaduct's loan-servicing agent, Gibraltar, had
authority to collect final payment on the McElhenie's
mortgage note?
Old Republic Title Company ("Old Republic") represented National Mortgage Link at the closing of this
transaction. [**4] At the closing, in a simultaneous
transaction, National Mortgage Link assigned the Renewed McElhenie Note and the accompanying deed of
trust lien to North American Mortgage Company ("North
American"). The deed was recorded. Old Republic requested and obtained from Gibraltar a statement of the
total remaining balance on the McElhenie Note. A title
insurance policy was also obtained and it revealed in part
the lien Millennium assigned to Aquaduct. To take a first
lien position on the McElhenies' homestead, National
Mortgage Link and North American payed to Gibraltar
the remaining balance on the McElhenie Note ($
28,126.61) in September 1998. Old Republic, acting on
behalf of National Mortgage Link and North American,
sent the check to Gibraltar and also asked Gibraltar to
execute and return to Old Republic for filing a release of
lien or transfer of lien. Gibraltar ignored this request, and
deposited the check in its Aquaduct account. However,
Gibraltar never paid these funds over to Aquaduct, and
Gibraltar apparently converted the funds to its own use.
[**6] III. ANALYSIS AND DISCUSSION
In August 2000, Aquaduct filed this suit asking the
trial court to declare its lien superior to North American's
lien on the McElhenie [**5] homestead. Aquaduct argued payment to Gibraltar of the full amount owing under the McElhenie Note was improper because Gibraltar
only had authority to accept monthly payments of principal and interest. North American counterclaimed for a
judgment declaring its lien superior to Aquaduct's lien.
Following a bench trial, the court found Aquaduct authorized its agent, Gibraltar, to accept payment in full of
outstanding balances on its notes, declared Aquaduct's
lien satisfied, and ordered Aquaduct to execute a release
of lien.
II. ISSUES PRESENTED
Aquaduct presents the following issues for review:
(2) Is circumstantial evidence sufficient to support
the trial court's finding that Gibraltar had authority to
collect final payment on the note?
(3) Was North American entitled to attorney's fees
under the Declaratory Judgments Act when its counterclaim was allegedly a suit to clear title?
(4) Was the trial court's award of attorney's fees under the Declaratory Judgments Act equitable and just?
A. Did Gibraltar have authority to collect the final payment on the McElhenie mortgage note?
In its first and second issues, Aquaduct challenges the
legal sufficiency of the evidence to support the trial
court's finding that Gibraltar had agency authority to
collect payment of the outstanding balance on the McElhenie Note. In conducting a no-evidence analysis, we
review the evidence in a light that tends to support the
disputed findings and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782, 45 Tex. Sup. Ct. J. 232 (Tex.
2001). If more than a scintilla of evidence exists, it is
legally sufficient. Id. More than a scintilla of evidence
exists if the evidence furnishes some reasonable basis for
differing conclusions [*442] by reasonable minds about
a vital fact's existence. Id. at 782-83.
Aquaduct maintains the trial court improperly relied
on circumstantial evidence to infer, from Gibraltar's authority to collect monthly payments of principal and interest, that Gibraltar had authority to collect payment in
full on behalf of Aquaduct. The question of agency is
usually [**7] one of fact, and circumstantial evidence
may be used to establish the agency relationship and to
determine the scope of the agent's authority. St. Paul
Surplus Lines Ins. Co., Inc. v. Dal-Worth Tank Co., Inc.,
917 S.W.2d 29, 48 (Tex. App.--Amarillo 1995, no writ);
Found. Reserve Ins. Co. v. Wesson, 447 S.W.2d 436, 438
(Tex. Civ. App.--Dallas 1969, writ ref'd). Absent actual
or apparent authority, an agent cannot bind a principal.
See Currey v. Lone Star Steel Co., 676 S.W.2d 205, 209
(Tex. App.--Fort Worth 1984, no writ). Both actual and
apparent authority are created through conduct of the
principal communicated either to the agent (actual authority) or to a third party (apparent authority). See id. at
210. Actual authority denotes that authority which the
principal intentionally confers upon the agent, or intentionally allows the agent to believe he has, or by want of
ordinary care allows the agent to believe himself to pos-
App. Def. 37
Page 3
116 S.W.3d 438, *; 2003 Tex. App. LEXIS 7862, **;
sess. Suarez v. Jordan, 35 S.W.3d 268, 272-73 (Tex.
App.--Houston [14th Dist.] 2000, no pet.); see also
Spring Garden 79U, Inc. v. Stewart Title Co., 874
S.W.2d 945, 948 [**8] (Tex. App.--Houston [1st Dist.]
1994, no writ).
The record shows that Gibraltar had implied actual
authority to collect full payment of outstanding balances
on behalf of Aquaduct. Aquaduct acquired several mortgage notes, including the McElhenie Note, from Millennium Interests, Ltd. Millennium had hired Gibraltar to
service its notes, but required debtors to send payments
directly to Millennium, rather than sending them to Gibraltar. After acquiring the notes, Aquaduct kept Gibraltar as the loan servicer without making a written agreement that defined the scope of Gibraltar's authority.
Vernon Young, the president of Aquaduct, testified that,
although not explicitly discussed, Gibraltar had authority
to perform numerous tasks, including authority: (1) to
conduct the day-to-day business of handling Aquaduct's
notes; (2) to collect and remit monthly payments of principal and interest; (3) to identify any delinquencies; (4)
to manage escrow payments; (5) to issue IRS Form 1098
mortgage interest statements to debtors on which Gibraltar was identified as the "lender/recipient" of payments;
and (6) to issue "payoff statements" upon request that
stated the remaining balance on a note. [**9] There was
no indication on the payoff statement that a full payment
should be made to Aquaduct.
As the servicing agent, Gibraltar sent the McElhenies, and Aquaduct's other newly-acquired debtors, a
coupon book and letter in May 1997. The letter stated
that servicing of the McElhenie Note had been transferred to Gibraltar and directed the McElhenies to send
their payments to Gibraltar and not to Millennium. The
letter did not indicate that a full payment should be
treated any differently from a regular monthly payment,
and the record suggests this is the only payment instruction Aquaduct ever gave its debtors. The letter did not
mention Aquaduct or state that Millennium no longer
held the mortgage note. Young testified that Aquaduct
authorized Gibraltar to send this letter and that Aquaduct
never had any communication with the McElhenies or its
other debtors.
Young also testified that he never gave Gilbraltar instructions on how to treat the events leading up to full
payment on a note and did not tell Gibraltar it could not
accept full payments until the summer [*443] 2000.
Gibraltar provided Aquaduct with monthly statements
that showed the amounts collected from each debtor.
Aquaduct knew [**10] Gibraltar accepted full payment
of the McElhenie Note because its own records for September 1998 show Gibraltar deposited $ 28,126.61 in the
account it maintained for receivables on the McElhenie
Note. A summary of accounts Gibraltar provided
Aquaduct shows no balance owing on the McElhenie
Note in November 1998. Aquaduct's records show that
Gibraltar collected four full payments, including the
McElhenie payment, over a span of two years before
Aquaduct told Gibraltar (in summer 2000) that Gibraltar
was not to accept full payments. From these facts, we
conclude the evidence is legally sufficient to prove Gibraltar had implied actual authority to accept full payment of the McElhenie Note on behalf of Aquaduct.
In the interest of justice, we address Aquaduct's further argument that, under article three of the Uniform
Commercial Code ("UCC"), Gibraltar could not have had
authority to collect the loan payoff because the McElhenie Note was a negotiable instrument and Gibraltar did
not have actual physical possession of the Note at the
time of the full payment. See TEX. BUS. & COM. CODE
ANN. §§ 3.301, 3.602 (Vernon 2002). Aquaduct reasons
because a negotiable [**11] instrument is paid only to
the extent payment is made to a person entitled to enforce the instrument, and a person entitled to enforce the
instrument is normally only a person in possession of the
instrument, that the UCC did not allow the McElhenies
to make their final payment to Gibraltar. See id. § 3.602
(providing a negotiable instrument is paid to the extent it
is paid to a person entitled to enforce the instrument); id.
§ 3.301 (providing a holder of the instrument or a nonholder in possession of an instrument are persons entitled
to enforce). Under Aquaduct's construction, the UCC
prohibits loan-servicing agreements, even for non-final
payments, unless the principal transfers possession of the
instrument to the servicing agent. See id. §§ 3.301, 3.602.
Aquaduct's proposed interpretation of the UCC is untenable.
Unless displaced by the provisions of the UCC,
agency law supplements the provisions of the UCC.
TEX. BUS. & COM. CODE ANN. § 1.103 (Vernon
1994). Common-law claims and principles complement
the UCC to the extent they do not conflict with UCC
provisions. See Bryan v. Citizens Nat'l Bank, 628 S.W.2d
761, 764, 25 Tex. Sup. Ct. J. 199 (Tex. 1982); [**12]
Bank One, Texas, N.A. v. Little, 978 S.W.2d 272, 277
(Tex. App.--Fort Worth 1998, pet. denied). We find nothing in sections 3.301 and 3.602 of the Texas Business
and Commerce Code that displaces the common-law
agency principles at issue in this case. Accordingly, the
McElhenies' final payment to Aquaduct's authorized
agent, Gibraltar, is deemed to be payment to Aquaduct, a
holder in possession of the negotiable instrument. See
Suarez, 35 S.W.3d at 274. Although the parties have not
cited a Texas case addressing this exact point, courts in
at least two other jurisdictions where the UCC has been
adopted have reached the same conclusion. See TEX.
BUS. & COM. CODE ANN. § 1.102(b)(3), recodified at
TEX. BUS. & COM. CODE ANN. § 1.103(a)(3) (effec-
App. Def. 38
Page 4
116 S.W.3d 438, *; 2003 Tex. App. LEXIS 7862, **;
tive Sept. 1, 2003) (providing the UCC must be applied
and construed to make uniform law among jurisdictions);
TEX. GOV'T CODE ANN. § 311.028 (Vernon 1998) ("A
uniform act included in a code shall be construed to effect its general purpose to make uniform the law of those
states that enact it"); Skott v. Bank of Am. Ill., 266 Ga.
532, 468 S.E.2d 359, 360-61 (Ga. 1996) [**13] (finding
authority to accept mortgage payoff when agent authorized to collect payments as servicing agent and no limitations placed on that [*444] authority); United Mo.
Bank v. Beard, 877 S.W.2d 237, 239-40 (Mo. Ct. App.
1994) (finding servicer had implied actual authority to
accept prepayment of mortgage balance and holding
principal who selected and authorized collecting agent
should bear loss caused by absconding agent); Tedesco
v. Bekker, 741 S.W.2d 896, 899 (Mo. Ct. App. 1987)
(finding express authority to collect full payment from
broad language appointing servicer exclusive agent to
manage loan and "collect all funds due"). Accordingly,
we overrule Aquaduct's first and second issues.
B. Did the trial court abuse its discretion by awarding
North American attorney's fees under the Declaratory Judgments Act?
In its third and fourth issues, Aquaduct argues the
trial court's award of attorney's fees to North American
was an abuse of discretion for two reasons: (1) because
the counterclaim on which North American prevailed
was a suit to clear title; and (2) because the award of
attorney's fees was not equitable and just.
The Texas Declaratory [**14] Judgments Act provides that in any proceeding under the Act, the trial court
may award costs as well as reasonable and necessary
attorney's fees that are equitable and just. See TEX. CIV.
PRAC. & REM. CODE ANN. § 37.009 (Vernon 1997);
Bocquet v. Herring, 972 S.W.2d 19, 20, 41 Tex. Sup. Ct.
J. 650 (Tex. 1998). The trial court has broad discretion to
determine whether to award costs and attorney's fees
under the Act, and we will not reverse that judgment on
appeal absent a clear showing of abuse. Bocquet, 972
S.W.2d at 20. We view the evidence in the light most
favorable to the trial court's ruling and indulge every
presumption in its favor. Goebel v. Brandley, 76 S.W.3d
652, 658 (Tex. App.--Houston [14th Dist.] 2002, no pet.).
Whether the fees awarded are equitable and just is a matter of law. Bocquet, 972 S.W.2d at 21. It is an abuse of
discretion for the trial court to rule arbitrarily, unreasonably, without regard to guiding legal principles, or
without supporting evidence. Id.
The trial court awarded North American $ 16,000 in
attorney's fees from Aquaduct because North American
prevailed on [**15] its request for declaratory judgment.
The trial court awarded an additional $ 5,000 in favor of
North American in the event of appeal to the court of
appeals and $ 5,000 for appeal to the Texas Supreme
Court, both only payable should North American prevail.
In its counterclaim for declaratory judgment, North
American asked the trial court to declare that its lien had
priority over Aquaduct's lien on the McIlhenies' property.
A person interested under a deed or contract may have
the trial court determine any question of validity or construction arising under the instrument and obtain a declaration of rights, status, or other legal relations thereunder.
See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a)
(Vernon 1997). The trial court construed and determined
the validity of the instruments in this case, and it declared the rights, status, and legal relations thereunder.
Aquaduct essentially argues that North American's counterclaim is a trespass to try title suit in the guise of a request for declaratory relief. Appellant relies primarily on
Southwest Guaranty Trust Co. v. Hardy Road 13.4 Joint
Venture, in making this argument. 981 S.W.2d 951, 956
[**16] (Tex. App.--Houston [1st Dist.] 1998, pet. denied). In Southwest Guaranty, the appellate court upheld
the trial court's denial of attorney's fees under the Declaratory Judgments Act because cross-appellant's suit
was for the purpose of clearing title. Appellant's reliance
on Southwest Guaranty is misplaced because the case at
bar [*445] does not present the same question presented
in Southwest Guaranty. Unlike the present case, in
Southwest Guaranty, a landowner brought suit to clear
title to its property, and the trial court rendered judgment
declaring title quieted and removing, annulling, and
holding for naught all clouds on title. Id. at 952-53, 957.
In holding that the suit was really a trespass to try title
suit, the court noted that the cross-appellant had not
sought to construe any terms of the relevant lien or deed
of trust in the trial court. Id. at 957. In the case at bar,
the trial court determined the validity of competing instruments to settle a dispute between two purported lien
holders, and its judgment did not declare title.
A trespass to try title action is a procedure by which
competing claims to title or the right to possession of
[**17] real property may be adjudicated. See TEX.
PROP. CODE ANN. § 22.001-22.045 (Vernon 2000);
Rogers v. Ricane Enter., Inc., 884 S.W.2d 763, 768 (Tex.
1994). To recover in a trespass to try title action, the
plaintiff must recover upon the strength of his own title.
Rogers, 884 S.W.2d at 768. The plaintiff may recover (1)
by proving a regular chain of conveyances from the sovereign; (2) by proving a superior title out of a common
source; (3) by proving title by limitations; or (4) by proving prior possession, and that the possession has not been
abandoned. Id. North American's requested relief, and
the relief afforded by the trial court, are not the subject
matter of a trespass to try title action. Because Aquaduct
has not cited, and we have not found, any authority suggesting that superiority of liens is an improper subject for
App. Def. 39
Page 5
116 S.W.3d 438, *; 2003 Tex. App. LEXIS 7862, **;
declaratory judgment, we overrule Aquaduct's third issue. See Goebel, 76 S.W.3d at 658.
In its fourth issue, Aquaduct maintains the award of
attorney's fees is inequitable and unjust because neither
North American nor Aquaduct engaged in culpable conduct. Aquaduct argues Gibraltar [**18] and North
American's closing agent and title company, Old Republic, are responsible for this litigation. In Aquaduct's view,
Gibraltar is culpable for having converted the funds, and
Old Republic is blameworthy for its failure to require the
original McElhenie Note or a release bearing the holder's
signature before closing. In light of the trial court's finding, supported by the record, that the disputed payment
was sent to an agent of Aquaduct--Gibraltar--we cannot
say the trial court's award of attorney's fees is inequitable
and unjust. Nothing in the lending documents Old Republic obtained named an entity other than Gibraltar as
payee. The Missouri of Court of Appeals addressed the
same equitable considerations and held that when payment is made to an authorized agent, the default of an
agent is the responsibility of the principal. United Mo.
Bank, 877 S.W.2d at 245. We agree. Aquaduct's conduct
in allowing Gibraltar to collect full payments on its notes
made the loss in this case possible, and Aquaduct may
not shift this burden to a party who dealt with its agent.
See id. Accordingly, we hold the trial court did not abuse
its discretion in awarding attorney's [**19] fees to North
American.
Having overruled all of Aquaduct's issues, we affirm
the trial court's judgment.
/s/ Charles W. Seymore
Justice
App. Def. 40
Page 1
LEXSEE 273 FED. APPX. 375
Analysis
As of: Aug 20, 2010
ELISABETH S. BROCKIE, Plaintiff-Appellant, v. AMERIPATH, INC., DefendantAppellee.
No. 07-10809 Summary Calendar
273 Fed. Appx. 375; 2008 U.S. App. LEXIS 7820; 103 Fair Empl. Prac. Cas. (BNA)
205
April 11, 2008, Filed
NOTICE: PLEASE REFER TO FEDERAL RULES
OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [**1]
Northern District of Texas. No. 3:06-CV-185.
Brockie v. Ameripath, Inc., 2007 U.S. Dist. LEXIS 29672
(N.D. Tex., Apr. 23, 2007)
CASE SUMMARY:
PROCEDURAL POSTURE: In a case alleging sex
discrimination in violation of Title VII of the Civil
Rights Act of 1964, appellant former employee sought
judicial review of the entry of summary judgment by the
United States District Court for the Northern District of
Texas in favor of appellee former employer.
OVERVIEW: The employee contended unsuccessfully
that her supervisor's comment satisfied the test for direct
evidence and was direct evidence of animus toward
women, such that her firing was intentional discrimination. Although the evidence presented in a deposition
satisfied the second and third prongs of the test, the supervisor's statement did not directly evidence animus
toward all women. If his statement evidenced any animus
at all, it was limited to streetwalkers and actual prosti-
tutes, not women in general. To believe otherwise would
require drawing the inference that the supervisor believed all women were streetwalkers, a plainly unreasonable inference not owed the employee, even at the summary judgment stage. Additionally, drawing that inference would mean that the supervisor's comment was not
direct, but circumstantial, evidence. The employee failed
to establish her prima facie case since she did not present
evidence that similarly situated men were treated more
favorably. She did not establish that any of her proffered
comparators were similarly situated. There was no evidence that any of the doctors offered as comparators received more favorable treatment.
OUTCOME: The judgment of the district court was
affirmed.
Genuine Disputes
Legal Entitlement
Materiality
[HN1] Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and
App. Def. 41
Page 2
273 Fed. Appx. 375, *; 2008 U.S. App. LEXIS 7820, **;
103 Fair Empl. Prac. Cas. (BNA) 205
any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). An issue is
material if a reasonable jury could return a verdict for the
non-moving party.
General Overview
Novo Review
[HN2] An appellate court reviews grants of summary
judgment de novo, applying the same standard as the
district court, and viewing the evidence in a light most
favorable to the non-movant.
General Overview
[HN3] Under Title VII of the Civil Rights Act of 1964
(Title VII), it is unlawful for an employer to fail or refuse
to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's sex. 42 U.S.C.S. §
2000e-2(a)(1). A court's inquiry under Title VII is
whether the defendant intentionally discriminated against
the plaintiff.
Proof > Allocation
of the Civil Rights Act of 1964 > General Overview
[HN4] Under Title VII of the Civil Rights Act of 1964, a
plaintiff can prove intentional discrimination through
direct or circumstantial evidence.
Evidence > Inferences & Presumptions > Inferences
Evidence > Inferences & Presumptions > Presumptions
[HN5] Direct evidence of discrimination is evidence that,
if believed, proves the fact in question without inference
or presumption. To qualify as direct evidence, a comment must be directly related to sex-based animus;
proximate in time to the termination; made by an individual with authority over the employment decision; and
related to the employment decision.
Burden Shifting
& Sex Discrimination > Proof > Circumstantial & Direct Evidence
[HN6] In the absence of direct evidence, a plaintiff may
use circumstantial evidence to demonstrate sex discrimination. Such cases are analyzed under the McDonnell
Douglas test, which establishes a burden-shifting scheme
whereby the plaintiff is first required to present a prima
facie case of discrimination. The burden of production,
not persuasion, then shifts and requires the employer to
articulate a legitimate, nondiscriminatory reason for its
actions. If the employer meets its burden, the prima facie
case dissolves, and the plaintiff must establish that the
employer's reason was either (1) a pretext for discrimination or (2) incomplete in that sex was still a factor in the
decision.
Proof > Allocation
[HN7] To establish a prima facie case, an employee must
present evidence that she (1) is within a protected class,
(2) was qualified for the position, (3) was subject to an
adverse employment action, and (4) was replaced by
someone outside the protected class, or that others, similarly situated yet outside her protected class, were treated
more favorably than she.
COUNSEL: For ELISABETH S BROCKIE, Plaintiff Appellant: Hal K Gillespie, Cheryl R Drazin, Gillespie,
Rozen, Watsky, Motley & Jones, Dallas, TX.
App. Def. 42
Page 3
For AMERIPATH INC, Defendant - Appellee: William
Louis Davis, Stephen Engler Hammel, Jackson Lewis,
Dallas, TX.
JUDGES:
Before
REAVLEY,
SMITH,
and
BARKSDALE, Circuit Judges. JERRY E. SMITH, Circuit Judge.
OPINION BY: SMITH
OPINION
[*376] JERRY E. SMITH, Circuit Judge: *
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Elisabeth Brockie sued her former employer,
AmeriPath, Inc. ("AmeriPath"), for alleged sex discrimination under title VII of the Civil Rights Act of 1964.
We affirm the summary judgment for AmeriPath.
I.
AmeriPath operates laboratories in various hospitals
and employed Brockie as a pathologist whose responsibilities included testing patients' tissue and blood samples and reporting her diagnoses to the treating physician. On one occasion, Brockie reported a diagnosis of
microscopic colitis to Dr. Steven Gadol after testing a
colon specimen [**2] from one of his patients. Gadol
took issue with the diagnosis, because he did not believe
that Brockie had provided sufficient explanation.
After Gadol had explained his concern to Brockie,
she decided to stand by her diagnosis. Gadol then spoke
to Brockie's supervisor, Steven Hebert, also a pathologist, about his concern; Hebert reviewed the sample and
agreed with Gadol that Brockie's diagnosis was not justified.
On another occasion, Gadol sent biopsies of a lesion
found on a patient's rectum to AmeriPath's lab. Brockie
reviewed the samples and rendered a diagnosis of rectal
cancer. Gadol was not surprised by the diagnosis but was
again disappointed with the lack of supporting detail in
Brockie's report and by her failure to telephone Gadol
and confirm his receipt of the report.
After complaining about the lack of detail, Gadol received an additional report [*377] containing more information and restating the diagnosis of rectal cancer.
Gadol explained the diagnosis to the patient, who then
consulted with an oncologist and ultimately had her rectum removed. Gadol later learned from the oncologist
that the lesion was only precancerous and that Brockie
had submitted to Gadol's office an amended [**3] report
that changed her diagnosis from rectal cancer to a precancerous rectal polyp. Though it is likely the patient
still would have required surgery, perhaps even removal
of her rectum, the recommended treatment would have
been different had the diagnosis initially been precancerous rather than cancerous.
Gadol related this experience to Hebert and again
expressed his disappointment at the lack of communication from Brockie, especially with regard to the change
in diagnosis but also regarding the previous case. Gadol
said he did not want Brockie to examine any more
specimens from his patients.
Brockie also reviewed biopsies of breast tissue for
Dr. Terre McGlothlin, who expressed concern to Hebert
about Brockie's lack of communication. In particular,
Brockie found no cancer in a specimen that had been
expected to be cancerous and failed to telephone
McGlothlin with the surprising results. Though Brockie's
diagnosis was correct, the failure to communicate with
McGlothin caused concern.
On a separate occasion, McGlothlin received a negative diagnosis from Brockie, but within forty-eight hours
it was changed to positive. Again, Brockie failed to
communicate with McGlothlin regarding [**4] the
changed diagnosis, and McGlothlin expressed her displeasure to Hebert.
During this time, Brockie and her husband were divorcing; the legal proceedings required Brockie's attention, often during working hours. She spent significant
time on the telephone and used the AmeriPath fax machine to address those personal issues.
It is uncontested that the above facts are true and
that Hebert based his decision to fire Brockie on these
facts. Hebert offers other reasons for firing Brockie, but
their truth is contested, so they do not support summary
judgment.
Although Brockie does not contest the above facts,
she asserts that her sex is Hebert's true motivation for
terminating her employment. She bases that assertion on
a statement Hebert made to Virginia Petty, an AmeriPath
human resources manager. During a private conversation
with Petty, Hebert reportedly said, in a joking manner,
that "Dr. Brockie had the reputation of being a 'streetwalker' and that the story at AmeriPath was that Brockie
had financed her education by being a 'streetwalker.'"
The district court concluded that Hebert's alleged
"streetwalker" comment was a stray remark and did not
qualify as direct evidence of discrimination. [**5]
Brockie also failed to offer circumstantial evidence of
App. Def. 43
Page 4
discrimination. Thus, the court granted AmeriPath's motion for summary judgment.
mean Hebert's comment was not direct, but circumstantial, evidence.
II.
[HN1] Summary judgment is appropriate if "the
pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to
judgment as a matter of law." FED. R. CIV. P. 56(c). An
issue is material if a reasonable jury could return a verdict for the non-moving party. Roberson v. Alltel Info.
Servs., 373 F.3d 647, 651 (5th Cir. 2004). [HN2] "This
Court reviews grants of summary judgment de novo,
applying the same standard as the district court, viewing
the evidence in a light most favorable [*378] to the
non-movant." Fruge ex rel. Fruge v. Parker Drilling Co.,
337 F.3d 558, 560 (5th Cir. 2003) (citations omitted).
[HN3] Under title VII, it is unlawful "for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). Our inquiry
under title VII is "'whether the defendant [**6] intentionally discriminated against the plaintiff.'" Alvarado v.
Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (quoting Roberson, 373 F.3d at 651). [HN4] A plaintiff can
prove intentional discrimination through direct or circumstantial evidence. Id.
A.
[HN5] Direct evidence is evidence that, if believed,
proves the fact in question without inference or presumption. Jones v. Robinson Prop. Group, 427 F.3d 987, 992
(5th Cir. 2005). To qualify as direct evidence, a comment must be directly related to sex-based animus;
proximate in time to the termination; made by an individual with authority over the employment decision; and
related to the employment decision. See Krystek v. Univ.
of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999) (internal
quotation omitted).
Brockie contends that Hebert's comment satisfies
this test and is direct evidence of animus toward women,
such that her firing was intentional discrimination. We
disagree. Although the evidence presented in Petty's
deposition 1 satisfies the second and third prongs of the
test, Hebert's statement does not directly evidence animus toward all women. If his statement evidences any
animus at all, it is limited to streetwalkers (actual prostitutes) not [**7] women in general. To believe otherwise
would require drawing the inference that Hebert believes
all women are streetwalkers, a plainly unreasonable inference not owed Brockie, even at the summary judgment stage. Additionally, drawing that inference would
1 We consider Petty's deposition, because we
agree with the district court that nothing in it
changes the outcome.
B.
[HN6] In the absence of direct evidence, a plaintiff
may use circumstantial evidence to demonstrate discrimination. Alvarado, 492 F.3d at 611. Per Alvarado,
id., we analyze such cases under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973), which establishes a burden-shifting
scheme whereby the plaintiff is first required to present a
prima facie case of discrimination. The burden of production, not persuasion, then shifts and requires "the employer to articulate a legitimate, nondiscriminatory reason for its actions." Alvarado, 492 F.3d at 611. If the
employer meets its burden, the prima facie case dissolves, and the plaintiff must establish that the employer's reason was either (1) a pretext for discrimination
or (2) incomplete in that sex was still [**8] a factor in
the decision. Id.
1.
[HN7] To establish a prima facie case, Brockie must
present evidence that she (1) is within a protected class,
(2) was qualified for the position, (3) was subject to an
adverse employment action, and (4) was replaced by
someone outside the protected class, or that others, similarly situated yet [*379] outside her protected class,
were treated more favorably than she. Bryan v. McKinsey
& Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). It is only
contested whether Brockie was qualified for the position
and whether men, similarly situated to her, were treated
more favorably.
We agree with the district court that Gadol's complaints to Hebert did not render Brockie unqualified. We
also agree that Brockie has failed to present evidence that
similarly situated men were treated more favorably. As
the court noted, Brockie has not established that any of
her proffered comparators were similarly situated. There
is no evidence that any of the other pathologists had
more than one misdiagnosis, and it is uncontroverted that
Brockie had at least two. There is also no evidence that
any of the other pathologists spent a significant amount
of their day addressing personal issues using [**9]
AmeriPath's resources.
Finally, Brockie argues that the other pathologists
received favorable treatment in that each had at least one
misdiagnosis, some resulting in litigation, yet they were
not terminated. The record contains no evidence of any
such litigation; whether they were meritorious or frivo-
App. Def. 44
Page 5
lous suits is unknown. It does not follow a fortiori that a
doctor who has been sued has committed malpractice,
nor does it follow that because Brockie's misdiagnosis
did not result in litigation, it was not malpractice.
in common than a single misdiagnosis are similarly situated, and we agree with the district court that there is no
evidence that any of the doctors offered as comparators
received more favorable treatment.
It is inappropriate for us to assess the relative severity of medical misdiagnoses and determine whether they
should have resulted in termination. Thus, we decline to
conclude that two pathologists who share nothing more
Brockie did not establish a prima facie case of discrimination under title VII. The summary judgment is
AFFIRMED.
App. Def. 45
Page 1
LEXSEE 413 F.3D 471
Caution
As of: Jul 19, 2010
BRANDON L BRYANT, Plaintiff-Appellee-Cross-Appellant, versus COMPASS
GROUP USA INC, individually, doing business as Chartwells, Defendant-AppellantCross-Appellee.
No. 04-40569
413 F.3d 471; 2005 U.S. App. LEXIS 11419; 95 Fair Empl. Prac. Cas. (BNA) 1804; 86
Empl. Prac. Dec. (CCH) P42,101
June 16, 2005, Filed
SUBSEQUENT HISTORY: US Supreme Court certiorari denied by Bryant v. Compass Group USA, Inc., 2006
U.S. LEXIS 50 (U.S., Jan. 9, 2006)
PRIOR HISTORY:
[**1] Appeal from the United
States District Court For the Eastern District of Texas.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant employer appealed a jury verdict in the U.S. District Court for the
Eastern District of Texas in favor of plaintiff employee
for unlawful termination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.S. § 2000e et seq.
OVERVIEW: The employer contended that the district
court erred in failing to grant its judgment as a matter of
law (JMOL) motion on the employee's unlawful termination claim because there was insufficient evidence for a
reasonable jury to find that his race or his Equal Employment Opportunity Commission (EEOC) claim was a
motivating factor it its decision to terminate his employment. Under a de novo review, the court had to determine whether the record contained sufficient evidence
for a reasonable jury to determine that the employer's
stated reason for terminating the employee was pretext or
that while true, it was only one of the reasons for its con-
duct, and another "motivating factor" was the plaintiff's
race or retaliation for his filing of an EEOC claim. The
employer asserted that it terminated his employment for
a legitimate, non-discriminatory reason, namely, that he
was suspected of committing theft or that he committed
theft. The court concluded that the record did not contain
evidence sufficient to support the jury's ultimate findings. Thus, the district court improperly denied the employer's motion for JMOL.
OUTCOME: The court reversed the district court judgment and rendered a take nothing judgment against the
employee.
Labor & Employment Law > Discrimination > Retaliation > Statutory Application > Title VII of the Civil
Rights Act of 1964 > Race & Color
U.S.C.S. § 2000e et seq., prohibits an employer from
discharging an individual, or otherwise discriminating
against any individual because of such individual's race.
42 U.S.C.S. § 2000e-2(a)(1). Title VII also prohibits re-
App. Def. 46
Page 2
413 F.3d 471, *; 2005 U.S. App. LEXIS 11419, **;
95 Fair Empl. Prac. Cas. (BNA) 1804; 86 Empl. Prac. Dec. (CCH) P42,101
taliation by employers against employees who have filed
a charge of discrimination. 42 U.S.C.S. § 2000e-3(a).
Civil Procedure > Trials > Judgment as Matter of Law
> General Overview
Novo Review
Criminal Law & Procedure > Appeals > Standards of
Review > De Novo Review > General Overview
[HN2] An appellate court reviews a district court's denial
of a motion for judgment as a matter of law de novo.
> General Overview
Evidence > Procedural Considerations > Weight & Sufficiency
[HN3] A motion for judgment as a matter of law should
be granted if there is no legally sufficient evidentiary
basis for a reasonable jury to find for a party. Fed. R.
Civ. P. 50(a). Thus, if reasonable persons could differ in
their interpretations of the evidence, then the motion
should be denied. A post-judgment motion for judgment
as a matter of law should only be granted when the facts
and inferences point so strongly in favor of the movant
that a rational jury could not reach a contrary verdict.
The jury's verdict is afforded great deference. Thus,
when evaluating the sufficiency of the evidence, a court
views all evidence and draws all reasonable inferences in
the light most favorable to the verdict.
Substantial Evidence > Sufficiency of Evidence
[HN4] When a case has been fully tried on its merits, a
court does not focus on the McDonnell Douglas burdenshifting scheme. Instead, it inquires whether the record
contains sufficient evidence to support the jury's ultimate
findings. A court need not parse the evidence into discrete segments corresponding to a prima facie case, an
articulation of a legitimate, nondiscriminatory reason for
the employer's decision, and a showing of pretext. When
a case has been fully tried on the merits, the adequacy of
a party's showing at any particular stage of the McDonnell Douglas ritual is unimportant.
[HN5] The factfinder's rejection of an employer's legitimate, nondiscriminatory reason for its action does not
compel judgment for the plaintiff although it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation.
Labor & Employment Law > Wrongful Termination >
Defenses > Employee Misconduct
[HN6] Management does not have to make proper decisions, only non-discriminatory ones. Employment discrimination laws are not intended to be a vehicle for judicial second-guessing of business decisions, nor to
transform the courts into personnel managers.
Labor & Employment Law > Discrimination > Disparate Treatment > Employment Practices > Adverse Employment Actions > Discipline
[HN7] Disparate treatment of similarly situated employees is one way to demonstrate unlawful discrimination
and retaliation. To raise an inference of discrimination, a
plaintiff may compare his treatment to that of nearly
identical, similarly situated individuals. To establish disparate treatment, a plaintiff must show that the employer
gave preferential treatment to another employee under
nearly identical circumstances.
COUNSEL: For BRANDON L BRYANT, PlaintiffAppellee-Cross-Appellant: John Gerard Werner, Reaud,
Morgan & Quinn, Beaumont, TX.
For COMPASS GROUP USA INC, individually dba
Chartwells, Defendant-Appellant-Cross-Appellee: Kerry
E. Notestine, Littler Mendelson, Houston, TX.
JUDGES: Before REAVLEY, JONES, and GARZA,
Circuit Judges.
OPINION BY: EMILIO M. GARZA
OPINION
Labor & Employment Law > Discrimination > Racial
Discrimination > Employment Practices > Discharges
Labor & Employment Law > Discrimination > Reverse
Discrimination
[*473] EMILIO M. GARZA, Circuit Judge:
Compass Group USA Inc., individually, doing business as Chartwells ("Chartwells"), appeals the jury verdict in favor of Brandon Bryant ("Bryant") for unlawful
termination under Title VII of the Civil Rights Act of
App. Def. 47
Page 3
413 F.3d 471, *; 2005 U.S. App. LEXIS 11419, **;
1964. 42 U.S.C. § 2000e, et seq. [*474] Chartwells
challenges the jury's finding that it terminated Bryant
either because of his race or because he had filed an
Equal Employment Opportunity Commission ("EEOC")
charge of discrimination.
I
Chartwells employed Bryant, a white male, as a
cook at their Lamar University food services operation.
Chartwells provides food and beverage services to educational facilities as an independent contractor.
Bryant sought promotion at Chartwells to an open
executive [**2] chef position, which was ultimately
filled by Ricardo Saldana, an Hispanic employee. One
month later, Chartwells transferred Francelia Madrigal,
Saldana's sister-in-law, to its Lamar operation. Bryant
filed a discrimination charge with the EEOC on March
26, 2002, alleging reverse race discrimination. Specifically, he claimed that Chartwells subjected him to disparate terms and conditions of employment--including by
Saldana and Madrigal--and that Chartwells' management
denied him a promotion to the executive chef position
because of his race.
Ten days later, on April 6, 2002, Bryant, Madrigal,
and Saldana worked at a bat mitzvah at a recreational
area on the Lamar Campus. After the event, Madrigal
informed Saldana that she had observed Bryant take an
envelope from the gift table and suspected that he had
disposed of the envelope in the trash behind the dining
hall. Madrigal claims she looked for the envelope, but it
was too dark to see anything, so she returned the following day and found three envelopes and three checks in
the trash. She informed Saldana about the checks and
provided a statement to Max Mitchell, the food services
director for Chartwells at Lamar. Maria Ortiz, another
[**3] Chartwells employee who worked at the bat mitzvah the night before, gave a statement to Lamar University police officer Daniel Bowden.
Bryant was asked to speak with Bowden the following day when he arrived at work. Bryant agreed to pay
back the $ 26 that he claimed represented the missing
cash from the envelopes but he included a note to the
girl's mother stating that he was paying the money under
duress and that he maintained his innocence. Bowden
informed Chartwells that Bryant confessed to taking the
money and agreed to make restitution. Chartwells terminated Bryant's employment, claiming the termination
was based on the police officer's statement that Bryant
confessed to the theft.
Bryant filed suit asserting that Chartwells racially
discriminated against him by subjecting him to adverse
terms and conditions of employment, denying him a
promotion to executive chef, and terminating his em-
ployment. Bryant further claimed that Chartwells unlawfully retaliated against him for filing a discrimination
charge with the EEOC by terminating his employment. 1
1 Bryant also claimed that Chartwells defamed
him to the president of Lamar University, but
abandoned this claim before the beginning of
trial.
[**4] The district court submitted Bryant's claims
of unlawful reduction in work hours, denial of promotion, and termination of employment claims to the jury. 2
The jury [*475] found: (1) for Bryant on the termination claim; (2) for Chartwells on the promotion claim;
and (3) for Bryant on the unlawful discrimination in the
reduction in hours claim, but that Chartwells would have
reduced Bryant's hours regardless of the unlawful motivation. The jury awarded Bryant: (1) $ 42,500 in actual
damages; (2) $ 160,000 in compensatory damages; and
(3) $ 350,000 in punitive damages. In addition, the court
awarded Bryant $ 36,500 in attorneys' fees and $
3,093.16 in costs. The district court granted Chartwells'
motion for judgment as a matter of law ("JMOL") on
punitive damages and granted a remittitur on the compensatory damage award to $ 150,000 and actual damages to $ 32,556.22. Bryant accepted the remittitur.
2
The court granted Chartwells' motion for
JMOL as to certain claims of discriminatory
terms and conditions of employment at the close
of Bryant's evidence and several other claims of
disparate terms and conditions of employment at
the close of Chartwells' evidence.
[**5] II
[HN1] Title VII prohibits an employer from "discharging an individual, or otherwise discriminating
against any individual . . . because of such individual's
race." 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits
retaliation by employers against employees who have
filed a charge of discrimination. 42 U.S.C. § 2000e-3(a).
The jury affirmatively answered a single question asking
them to determine whether Bryant's race or retaliation for
his filing of an EEOC charge of discrimination was a
substantial or motivating factor in his termination.
Chartwells appeals the judgment in favor of Bryant, arguing the district court's denial of its motion for JMOL
should be reversed.
[HN2] We review a district court's denial of a motion for JMOL de novo. Thomas v. Tex. Dep't of Criminal Justice, 220 F.3d 389, 392 (5th Cir. 2000). [HN3] A
motion for JMOL should be granted if "there is no legally sufficient evidentiary basis for a reasonable jury to
find for a party." FED. R. CIV. P. 50(a). Thus, "if reasonable persons could differ in their interpretations of the
App. Def. 48
Page 4
413 F.3d 471, *; 2005 U.S. App. LEXIS 11419, **;
evidence, then the motion should [**6] be denied."
Thomas, 220 F.3d at 392 (citing Baltazor v. Holmes, 162
F.3d 368, 373 (5th Cir. 1998)). "A post-judgment motion
for judgment as a matter of law should only be granted
when 'the facts and inferences point so strongly in favor
of the movant that a rational jury could not reach a contrary verdict.'" Id. (quoting Waymire v. Harris County,
Tex., 86 F.3d 424, 427 (5th Cir. 1996)). The jury's verdict is afforded great deference. Thus, when evaluating
the sufficiency of the evidence, we view all evidence and
draw all reasonable inferences in the light most favorable
to the verdict. Id.
Chartwells argues that the district court erred in failing to grant its JMOL motion on Bryant's unlawful termination claim because there was insufficient evidence
for a reasonable jury to find that Bryant's race or his
EEOC claim was a motivating factor it its decision to
terminate his employment. Chartwells raises three arguments: (1) Bryant failed to establish a prima facie case of
unlawful termination; (2) Bryant did not offer sufficient
evidence to establish that Chartwells' reason for termination was a pretext for discrimination [**7] or if true, was
only one of the reasons for its conduct, and another "motivating factor" was the plaintiff's race or retaliation for
his filing of an EEOC claim; and (3) Chartwells offered
sufficient evidence that it would have made the same
adverse employment decision regardless of any unlawful
animus.
[HN4] "When, as here, a case has been fully tried on
its merits, we do not focus on the McDonnell Douglas 3
burden- [*476] shifting scheme. Instead, we inquire
whether the record contains sufficient evidence to support the jury's ultimate findings." Smith v. Berry Co., 165
F.3d 390, 394 (5th Cir. 1999) (footnoted added). See
also Rutherford v. Harris County, 197 F.3d 173, 180-81
(5th Cir. 1999); Vaughn v. Sabine County, 104
Fed.Appx. 980, 982 (5th Cir. 2004). "We need not parse
the evidence into discrete segments corresponding to a
prima facie case, an articulation of a legitimate, nondiscriminatory reason for the employer's decision, and a
showing of pretext. 'When a case has been fully tried on
the merits, the adequacy of a party's showing at any particular stage of the McDonnell Douglas ritual is unimportant.'" Vaughn, 104 Fed.Appx. at 982 [**8] (quoting
Travis v. Bd. of Regents of Univ. of Tex. Sys., 122 F.3d
259, 263 (5th Cir. 1997)). Therefore, under a de novo
review, this court must determine whether the record
contains sufficient evidence for a reasonable jury to determine that Chartwells' stated reason for terminating
Bryant was pretext or that while true, it was only one of
the reasons for its conduct, and another "motivating factor" was the plaintiff's race or retaliation for his filing of
an EEOC claim.
3 The McDonnell-Douglas Corp. v. Green, 411
U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973),
framework requires a plaintiff to first create a
presumption of discrimination by making out a
prima facie case of discrimination. The burden of
production then shifts to the defendant to establish legitimate non-discriminatory reasons for its
actions. The plaintiff then bears the burden of
persuading the trier of fact by a preponderance of
the evidence that the employer intentionally discriminated against the plaintiff because of the
plaintiff's protected status. Laxton v. Gap Inc.,
333 F.3d 572, 578 (5th Cir. 2003).
[**9] Chartwells asserts that it terminated Bryant's
employment for a legitimate, non-discriminatory reason-namely that he was suspected of committing theft or that
he committed theft. Chartwells claims that it maintained
a policy, as stated in its General Rules and Provisions,
that provided for immediate termination for "theft, reasonable suspicion of theft or accessory to theft." Bryant
argues that Chartwells' reason is mere pretext for its actual motive for terminating his employment--namely that
he had filed an EEOC charge alleging reverse race discrimination only three weeks prior to the events that resulted in his termination. [HN5] "The factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff . . . [although] it is permissible for the trier of fact to
infer the ultimate fact of discrimination from the falsity
of the employer's explanation." Reeves v. Sanderson
Plumbing Products Inc., 530 U.S. 133, 146-47, 147 L.
Ed. 2d 105, 120 S. Ct. 2097 (2000) (emphasis in original).
Bryant relies heavily on the close proximity of time
between the events to demonstrate that Chartwells' reason for his termination [**10] was pretextual. In addition, Bryant claims that management's decision to have
Saldana memorialize Bryant's past transgressions also
demonstrates that its true reason for terminating him was
retaliation for his filing of the EEOC claim. There is no
evidence, however, that this memorandum or Bryant's
alleged past transgressions was the basis for his termination.
Bryant's remaining arguments focus on his innocence and that his confession came under duress. The
critical issue is not what Bryant told the officer 4 and
under [*477] what circumstances Bryant confessed, but
what the officer relayed to Chartwells' management and
what reasons Chartwells relied on in terminating Bryant.
Of primary importance on this issue is the uncontroverted testimony of a disinterested third party, officer
Bowden. The record indicates that he informed Chartwells management that Bryant confessed to the theft. 5
Bryant offers no evidence to demonstrate why Chart-
App. Def. 49
Page 5
413 F.3d 471, *; 2005 U.S. App. LEXIS 11419, **;
wells' explanation that it relied on this evidence for termination is pretext. Therefore, there is no legally sufficient evidentiary basis for a reasonable jury to find that
Chartwells unlawfully terminated Bryant in retaliation
for filing an EEOC charge [**11] of discrimination.
4 Bowden testified at trial that Bryant never directly admitted to him that he took the cards or
money:
Q: Lt. Bowden, I thought you
told me that Mr. Bryant didn't admit to taking the money?
A: The words "I did it," no,
you're right, he never said that.
5 Q: What did you tell Mr. Mitchell?
A: I told Mr. Mitchell that Brandon agreed to pay back the money.
Q: What else did you tell Mr.
Mitchell?
A: Well, I don't remember exactly what it was, but it did - - I'm
sure I told him that he admitted to
doing it and that he would pay the
money back.
Q: Right. And you did tell Mr.
Mitchell that he confessed to taking the money, didn't you?
A: Yes.
Bryant also asserted several theories to demonstrate
that Chartwells' true "motivating factor" behind its decision was Bryant's race. First, Bryant argues that there
was a conspiracy between the Hispanic employees-Saldana, Madrigal, and Ortiz--to get him fired and that
management knew, or should have known, about this
framing. [**12] Bryant concedes that none of these
individuals were official decisionmakers at Chartwells
and that none of them had authority to terminate his employment. However, "if an employee can demonstrate
that others had influence or leverage over the official
decisionmaker, and thus were not ordinary coworkers, it
is proper to impute their discriminatory attitudes to the
formal decisionmaker . . . . 'If the [formal decisionmakers] acted as the conduit of [the employee's] prejudice-his cat's paw--the innocence of the [decisionmakers]
would not spare the company from liability.'" Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir.
2000) (citing Shager v. Upjohn Co., 913 F.2d 398, 405
(7th Cir. 1990)). Bryant's "cat's paw" theory is that
Saldana, Madrigal, and Ortiz had unlawful racially motivated intent and that, because the decisionmakers relied
on tainted information from these employees, the termination decision itself was tainted.
Bryant offered little evidence at trial to demonstrate
a conspiracy. He claims that: (1) Saldana and Madrigal
showed up at the bat mitzvah despite not being scheduled
to work; (2) Bryant did not see Saldana [**13] although
she claimed to have seen him take the card from the gift
table; (3) Madrigal did not immediately report the theft;
(4) Ortiz's son reported seeing Bryant empty the cards
into the trash behind the dumpster but did not see him
take the cards from the table; and (5) Madrigal claims to
have found the cards in the trash, but proceeded to work
the rest of the day. Even if we assume that the three Hispanic co-workers were conspiring against Bryant, he
offers no evidence to demonstrate that the conspiracy
was racially motivated. Similarly, Bryant does not argue
that the three Hispanic employees were motivated by
retaliatory intent because none of them knew that he had
filed an EEOC claim. Again, he simply relies on the fact
that the other employees are Hispanic and he is white.
Furthermore, Bryant's conspiracy theory fails because he offered no evidence that the official decisionmakers were involved [*478] in the conspiracy, knew
about the conspiracy, or should have known about the
conspiracy. Testimony at trial indicated that Chartwells
relied on the police officer's report that Bryant admitted
to the theft, as discussed above, in making its decision. In
fact, it is Bryant who alleges [**14] that Chartwells'
management failed to properly investigate the events
surrounding the bat mitzvah that would have revealed
this potential conspiracy. While the prudent action may
have been to discuss the event with Bryant and obtain his
side of the story before terminating him, evidence that
the employer's investigation merely came to an incorrect
conclusion does not establish a racial motivation behind
an adverse employment decision. [HN6] Management
does not have to make proper decisions, only nondiscriminatory ones. See Little v. Republic Refining Co.,
924 F.2d 93, 97 (5th Cir. 1991) ("even an incorrect belief that an employee's performance is inadequate constitutes a legitimate, non-discriminatory reason" for termination). Employment discrimination laws are "not intended to be a vehicle for judicial second-guessing of
business decisions, nor . . . to transform the courts into
personnel managers." Bienkowski v. Am. Airlines, Inc.,
851 F.2d 1503, 1507-08 (5th Cir. 1988).
Bryant also argues that Chartwells' reason for terminating his employment was pretextual because similar
conduct on the part of an Hispanic employee, Ortiz, was
App. Def. 50
Page 6
413 F.3d 471, *; 2005 U.S. App. LEXIS 11419, **;
not disciplined in the [**15] same manner. [HN7] Disparate treatment of similarly situated employees is one
way to demonstrate unlawful discrimination and retaliation. See Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180
(5th Cir. 1990). To raise an inference of discrimination,
the plaintiff may compare his treatment to that of nearly
identical, similarly situated individuals. Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995).
To establish disparate treatment, Bryant must show that
Chartwells gave preferential treatment to another employee under "nearly identical" circumstances. Okoye v.
Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507,
514 (5th Cir. 2001).
The district court concluded, in denying Chartwells'
JMOL, that Bryant established disparate treatment since
he and Ortiz were similarly situated employees in the
minds of the jury, both being "among the low level
hourly employees." The district court stated that
There was evidence that Max Mitchell,
[Chartwells'] food director at Lamar at the
time, and one of the three individuals who
made the decision to fire Bryant, had been
aware that Ms. Ortiz, a Hispanic, had pilfered food, alcoholic [**16] beverages,
and/or table decorations. No action was
taken, and [Chartwells] presented no
credible evidence that Ms. Ortiz did not
do these things, that any disciplinary action was administered, or that there was
good reason for not administering disciplinary action. On the other hand, Bryant,
who in [Chartwells'] view, was a similar,
low level, hourly employee, but a Caucasian, was fired.
A reasonable jury could conclude that Bryant and Ortiz
were "similarly situated" low level hourly employees.
However, the alleged theft of alcohol, party decorations,
and table decorations is not the same as stealing money
from a client's gift table at a catered event. The allegations leveled against Ortiz involved an internal situation
compared to the allegations of theft from a client in Bryant's situation. A key distinction is that the latter can result in a significant loss of business and clients for
Chartwells due to the devastating effect such actions
would have on its reputation as well as exposing it to
civil legal liability. Moreover, since Ortiz never admitted
the theft to the police or anyone else, no reasonable
[*479] jury could conclude that the two events are
"nearly identical. [**17] "
Bryant also argues that he was subject to disparate
treatment because Chartwells did not terminate Ortiz's
employment after they learned she was not authorized to
work in the United States. However, when Chartwells
learned that Ortiz's Social Security information was invalid, they gave her forty-eight hours to provide the proper
information, as company policy dictated, and when she
was unable to do so, she was discharged. Again, this fails
to demonstrate disparate treatment.
The record does not contain evidence sufficient to
support the jury's ultimate findings. Therefore, the district court improperly denied Chartwells' motion for
JMOL and the judgment should be vacated.
III
Since Bryant failed to elicit evidence at trial so that a
reasonable jury could conclude that his race or retaliation
for his filing of an EEOC claim was a substantial or motivating factor in his termination, we REVERSE the district court judgment and RENDER take nothing judgment against Bryant. 6
6 Because we reverse the judgment for Bryant,
we need not consider his claim that the elimination of the jury awarded punitive damages based
on his acceptance of a remittitur of actual damages was improper. It is also unnecessary to consider Chartwells' appeal of the compensatory
damages, actual damages, and attorneys' fees and
costs awarded Bryant.
[**18]
App. Def. 51
Page 1
TAMI L. CANNIZZARO, Plaintiff, v. NEIMAN MARCUS, INC., Defendant.
CIVIL ACTION NO. 3:96-CV-0934-P
979 F. Supp. 465; 1997 U.S. Dist. LEXIS 21178
August 20, 1997, Filed; August 22, 1997, Entered on Docket
DISPOSITION:
[**1] Plaintiff's Motion for Continuance DENIED; Defendant's Motion for Summary
Judgment GRANTED; JUDGMENT entered in favor of
Defendant that Plaintiff take nothing in all actions
against Defendant, Defendant awarded its just and reasonable costs and Cause No. 3:96-CV-0934-P CLOSED.
Plaintiff's Motion for Reconsideration and Brief in Support, filed September 8, 1997 DENIED.
COUNSEL: For TAMI L CANNIZZARO, plaintiff:
Kay Lynn Van Wey, Julie Elizabeth Johnson, Attorneys
at Law, Van Wey & Johnson, Dallas, TX USA.
For NEIMAN MARCUS INC, defendant: Stephen Fred
Fink, Attorney at Law, Thompson & Knight, Dallas, TX
USA.
JUDGES: JORGE A. SOLIS, UNITED STATES DISTRICT JUDGE, NORTHERN DISTRICT OF TEXAS.
OPINION BY: JORGE A. SOLIS
OPINION
[*468] MEMORANDUM OPINION AND ORDER
Now before the Court are Defendant's Motion for
Summary Judgment, Plaintiff's Motion for Continuance
Under Rule 56(f) and Brief in Support of Opposition to
Motion for Summary Judgment, 1 and Reply Brief in
Support of Defendant's Motion for Summary Judgment
and Response to Plaintiff's Rule 56(f) Motion for Continuance. Based on the evidence before the Court and the
authorities presented, the Court hereby DENIES Plain-
tiff's Motion(s) [**2] for Continuance and GRANTS
Defendant's Motion for Summary Judgment.
1 Plaintiff filed on the same day a separate
document titled "Plaintiff's Motion for Continuance Under Rule 56(f) and Response to Defendant's Motion For Summary Judgment," which
contains substantially the same arguments raised
in the former motion, but is 14 pages shorter.
This memorandum opinion and order disposes of
both motions.
I. THE FACTS
Plaintiff ("Cannizzaro") was employed by Defendant
Neiman Marcus ("NM") for approximately 10 years
when she learned that she had a subdural hematoma.
Cannizzaro underwent brain surgery to have the mass
removed. During the week following her surgery, Cannizzaro suffered seizures and was placed on anti-seizure
medications, which she alleges she continues to take. 2
Immediately following her surgery, Cannizzaro's physician ("Dr. Morgan") directed her to refrain from lifting,
bending, driving and engaging in any physical activity
beyond normal walking. Cannizzaro's position at NM
required her [**3] to lift, bend and spend several hours
on her feet. About that time, Cannizzaro informed NM
that she would be unable to return to work for approximately three months. Under NM's short term disability
plan in effect at the time, Cannizzaro was entitled to receive full salary for 26 weeks. While Cannizzaro was on
short term disability, NM filled her position.
2 Cannizzaro has testified that she suffered no
further seizures once her medication became
regulated. Cannizzaro Depo. p. 17.
App. Def. 52
Page 2
When Cannizzaro was released to return to work,
Dr. Morgan placed certain restrictions on Cannizzaro's
release. She was not to bend more than 20 degrees; she
could not lift anything weighing more than 10 pounds;
[*469] she was prohibited from lifting anything (including a light briefcase) more than 2-3 times daily; she was
not to work more than 5 hours per day the first week she
returned, but she should be able to ease into the traditional 40 hour work week by the second week; and she
could not travel by airplane more than once per month.
[**4] Cannizzaro informed NM of these restrictions.
Cannizzaro continued to receive short-term disability benefits while she interviewed for vacant positions
with NM. Cannizzaro was not hired for any of the seven
positions for which she interviewed. 3 NM agreed to extend Cannizzaro's benefits by one month, and allowed
her to exhaust all of her accrued vacation and other paid
leave while Cannizzaro was interviewing. This allowed
Cannizzaro to continue to receive her pay and benefits
for approximately three more months. During this time
period, the evidence indicates that Cannizzaro met with
the neurosurgeon who had removed her subdural hematoma ("Dr. Finn"). Dr. Finn's notes state "[Cannizzaro] is
doing extremely well. She is absolutely asymptomatic.
She is back to normal." Cannizzaro Depo. Ex. 23.
3 Cannizzaro's Complaint alleges the existence
of a total of 15 positions for which she claims to
have been qualified. The evidence before the
Court, however, indicates the existence of and
Cannizzaro's application for seven positions only.
Cannizzaro alleges that she was not hired into
any of these positions because of her disability or,
in the alternative, because NM regarded her as
being disabled. In support of this contention,
Cannizzaro relies on the following allegations/statements:
1) an "overall lack of meaningful
assistance in identifying open positions";
2) refusal to give Cannizzaro
"access to NM's computerized database which listed job openings";
3) "patronizing suggestions . .
. that she refrain from seeking
lower-paying positions";
4) allegedly repeated questions from unspecified interviewers about her brain condition in interviews;
5) comments from unspecified speakers that she was "over-
qualified" for unspecified positions;
6) the fact that she was not offered a single job after her illness;
7) a comment allegedly made
to Cannizzaro that "Neiman's owes
you nothing!";
8) Cannizzaro's allegation that
she was refused the ability to have
her attorney accompany her to a
meeting; and
9) a comment attributed to
one of the seven hiring managers
who interviewed her ("Earnheart"), which appears in notes
drafted by NM's Human Resource
Manager ("McBride") in which
McBride states that Earnheart
"was not interested in going forward with [Cannizzaro] 'for her
sake' as he put it. He said he felt
the job would 'kill her.' He then
went on to describe in detail her
entire illness and treatment."
McBride Depo. Ex. 8.
NM has provided evidence of legitimate nondiscriminatory reasons for Cannizzaro's failure to be
hired into each of the positions. See Appendix A.
[**5] About one month prior to the expiration of
her benefits, NM's Vice President of Human Resources
("Johnson") and the head of Employee Benefits
("Danes") scheduled a meeting with Cannizzaro. At this
meeting, Danes told Cannizzaro that "we don't think your
career is here at Neiman's anymore." When Cannizzaro
asked why, Johnson stated "well, you're not getting any
of the positions you interview for." Johnson and Danes
then offered Cannizzaro the paid assistance of an outside
job placement firm to help her locate a position with a
company other than NM. Cannizzaro accepted the referral, alleging that she believed herself to be terminated at
this point.
Shortly thereafter, Cannizzaro filed a claim for unemployment benefits despite remaining on NM's payroll
and receiving vacation pay. Cannizzaro indicated in her
application that she could perform any job not involving
lifting or bending. About the time all of her paid leave
was exhausted, Cannizzaro obtained a position as a special events project manager with the Zales Corporation.
The day before she started her new job, Cannizzaro filed
a charge with the Equal Employment Opportunity Com-
App. Def. 53
Page 3
mission ("EEOC") against NM alleging sex and disability [**6] discrimination. Thereafter, Cannizzaro received her right to sue letter and filed this action, alleging causes of action under the Americans With Disabilities Act ("ADA"); negligent training, supervision and
retention; and intentional infliction of emotional distress.
NM has moved for summary judgment on all counts in
Cannizzaro's complaint, and Cannizzaro seeks a continuance to obtain [*470] further discovery to establish that
a genuine issue of material fact exists precluding summary judgment.
II. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered when the
and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. Proc. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S.
Ct. 2548 (1986); Thomas v. Harris County, 784 F.2d
648, 651 (5th Cir. 1986). Material facts are facts that
might affect the outcome of the suit under the governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All evidence
[**7] and the inferences to be draw therefrom must be
viewed in the light most favorable to the party opposing
the motion. Marshall v. Victoria Transp. Co., 603 F.2d
1122, 1123 (5th Cir. 1979). Such inferences must be
reasonable and may not rest upon speculation and conjecture only. Brady v. Houston Indep. School Dist., 113
F.3d 1419, 1422 (5th Cir. 1977).
The nonmovant must do more than simply show
there is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348
(1986). A "mere scintilla" of evidence is insufficient to
present a question for the jury. Foreman v. Babcock &
Wilcox Co., 117 F.3d 800, 804 (5th Cir. 1997). The party
defending against a motion for summary judgment cannot defeat the motion unless he provides specific facts
that show the case presents a genuine issue of material
fact, such that a jury might return a verdict in his favor
Anderson, 477 U.S. at 256-57. When the record taken as
a whole could not lead a rational trier of fact to find for
the nonmovant, there is no genuine issue for trial. Matsushita, 475 U.S. at 587.
The party opposing the [**8] motion must come
forward with competent summary judgment evidence.
Id. at 586. Conclusory statements unsupported by evidentiary facts will not defeat a motion for summary
judgment. Falls Riverway Realty, Inc. v. Niagara Falls,
754 F.2d 49 (2d Cir. 1985); Morton v. GTE North Inc.,
922 F. Supp. 1169, 1181 (N.D. Tex. 1996), aff'd, 114
F.3d 1182 (5th Cir. 1997). Mere assertions of a factual
dispute unsupported by probative evidence will not prevent summary judgment. Anderson, 477 U.S. at 248-50.
Nor may the nonmovant rest on mere allegations or denials in its pleadings. Id. Evidence not significantly probative or that is "merely colorable" will not defeat a properly supported motion for summary judgment. Id.
When the nonmoving party fails to make the requisite showing and the moving party has met his summary
judgment burden, the movant is entitled to summary
judgment. Fed. R. Civ. P. 56(c); Campbell v. Sonat Offshore Drilling, 979 F.2d 1115, 1119 (5th Cir. 1992).
Coghlan v. H.J. Heinz Co., 851 F. Supp. 808, 811 (N.D.
Tex. 1994). Moreover, if the nonmoving party fails to
make a showing sufficient to establish the existence of an
element essential [**9] to his case and on which he will
bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23. The court has
no duty to search the record for triable issues. Guarino
v. Brookfield Township Trustees, 980 F.2d 399, 402 (6th
Cir. 1992). The court need only rely on the portions of
submitted documents to which the nonmoving party directs. Id. at 403.
A. Continuance
Rule 56(f) provides:
When Affidavits are Unavailable.
Should it appear from the affidavits of a
party opposing the motion that the party
cannot for reasons stated present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions to be taken or discovery to be [*471] had or may make
such other order as is just.
Fed. R. Civ. Proc. 56(f).
In its affidavits, a party must present specific facts
explaining its inability to respond substantively and also
demonstrate how delaying a ruling will enable the party
to rebut the motion. Krim v. BancTexas Group, Inc., 989
F.2d 1435, 1442 (5th Cir. 1993); International Shortstop,
Inc. [**10] v. Rally's, Inc., 939 F.2d 1257, 1267-68
(5th Cir. 1991). The nonmovant may not rely on vague
assertions that discovery will produce needed, but unspecified facts. SEC v. Spence & Green Chem. Co., 612
F.2d 896, 901 (5th Cir. 1980), cert. denied, 449 U.S.
1082, 66 L. Ed. 2d 806, 101 S. Ct. 866 (1981). Moreover,
the court "need not aid [parties] who have occasioned
their own predicament through sloth." Wichita Falls Of-
App. Def. 54
Page 4
fice Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th
Cir. 1992), cert. denied, 508 U.S. 910, 124 L. Ed. 2d 251,
113 S. Ct. 2340 (1993). Finally, as Defendant points out,
the federal rules "shall be construed and administered to
secure the just, speedy and inexpensive determination of
every action." Fed. R. Civ. P. 1.
In her motion, Cannizzaro states:
Counsel for Neiman Marcus previously
allowed counsel for Cannizzaro an opportunity to informally interview several employees by telephone in lieu of both parties incurring the expense of numerous
depositions. Based upon such interviews,
Cannizzaro believes that these employees
will provide sworn affidavits or deposition testimony favorable to Cannizzaro,
particularly with respect to the knowledge
[**11] employees had regarding Cannizzaro's disability and the perceptions generally and specifically held by employees
regarding her substantial limitations and
ability to work in general. However, Cannizzaro must be afforded the opportunity
to procure such testimony under oath....
Pl. Mtn. for Cont. p. 1. Cannizzaro goes on further to
state: "While many [individuals] have signed affidavits
in support of Defendant's motion, only Manuel Zaby and
Robin McBride have been deposed. Cannizzaro would
like, and deserves, the opportunity to depose each of the
individuals with respect to their perceptions of her and
their knowledge of her medical condition and limitations
prior to and during interviews with her." Id. at p. 15. Additionally, Cannizzaro argues that "At a minimum, the
evidence adduced with respect to Bill Ernhardt [sic] and
his prejudicial stereotypes and myths regarding Cannizzaro's health raises a fact issue with respect to whether
Cannizzaro was regarded as having a substantially limiting impairment. Further limited discovery would allow
Cannizzaro the opportunity to determine how widespread
such attitudes were, as she believes that almost every
local employee and [**12] most managers were aware
of her sudden surgery." Id. at 16. Cannizzaro also states
that additional discovery "should be allowed to develop
the animus and stereotypes or ill-founded perceptions
which existed within the company regarding her medical
condition." Id. at 20. Finally, in her affidavit, Cannizzaro's counsel attests: "I have interviewed several employees of Defendant, whom I believe will provide testimony favorable to Plaintiff. I have not been able to
depose them or obtain affidavits from them. I believe it is
imperative that plaintiff be given and [sic] opportunity to
depose and cross-examine these individuals as some of
them have prepared affidavits used by defendant in support of its motion." Affid. of Julie Johnson, P 6.
The record indicates that on June 14, 1996, NM
identified the witnesses Cannizzaro now seeks to depose
in NM's initial disclosure and/or its interrogatory answers
served on February 12, 1997. By agreement, the parties
extended the original discovery deadline of February 12,
1997 to March 30, 1997 and finally to April 11, 1997.
Counsel for Cannizzaro deposed Robin McBride on
March 6, 1997. Affid. of Julie Johnson P 5. Exhibit 8
attached to the excerpt [**13] of that Deposition is
McBride's notes regarding Earnheart's alleged perception
that Cannizzaro was disabled (see footnote 3).
Cannizzaro has not indicated to the Court why she
has been unable to secure the desired witnesses' testimony under oath from, at the earliest, the time she informally interviewed the witnesses, and at the latest,
March 6, 1997, when she was alerted to evidence arguably attributable to Earnheart's [*472] alleged perception
of Cannizzaro as disabled. Moreover, as NM points out,
Cannizzaro does not indicate why she waited until her
response to NM's motion was due to seek her continuance.
Finally, her counsel's affidavit does not indicate specifically which witnesses will provide what facts. Instead
it appears to the Court, as NM argues, that Cannizzaro
has "a generalized hope that cross-examination will yield
evidence" needed to defeat summary judgment. Reply
Brief, p. 8. The law does not require a continuance to
conduct a fishing expedition. Krim, 989 F.2d at 1443.
"[While] the . . . court should be generous in its allowance of discovery requests aimed at uncovering evidence
of the moving party's state of mind, . . . [where] the
nonmoving party has not diligently [**14] pursued discovery of that evidence, the court need not accommodate
the nonmoving party's belated request." International
Short Stop, 939 F.2d at 1267. Cannizzaro's lack of specificity coupled with the complete absence of explanation
for her alleged inability to have obtained the needed testimony in what appears to be--and no party has contested
this--a sufficient window of opportunity, leads the Court
to the conclusion that the "just, speedy and inexpensive"
determination of this action requires the Court to deny
the continuance. See Krim, 989 F.2d at 1442.
III. THE ADA
The ADA prohibits employers like NM from discriminating against a qualified individual with a disability because of the disability of such individual in regard
to job application procedures, hiring, advancement, or
discharge of employees. 42 U.S.C. § 12112(a); Turco v.
Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir.
1996). "Qualified individual with a disability means an
App. Def. 55
Page 5
individual with a disability who satisfies the requisite
skill, experience, education and other job-related requirements of the employment position such individual
holds or desires, and who, with or without reasonable
accommodation, [**15] can perform the essential
functions of such position." 29 C.F.R. §
1630.2(m)(emphasis added). "The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or
desires. [It] does not include the marginal functions of
the position." 29 C.F.R. § 1630.2(n)(1). "Evidence of
whether a particular function is essential includes, but is
not limited to: (i) the employer's judgment as to which
functions are essential; (ii) written job descriptions prepared before advertising or interviewing applicants for
the job; (iii) the amount of time spent on the job performing the function; (iv) the consequences of not requiring
the incumbent to perform the function; . . . (vi) the work
experience of past incumbents in the job; and/or (vii) the
current work experience of incumbents in similar jobs."
29 C.F.R. § 1630.2(n)(3).
A. Otherwise Qualified Individual
"While the ADA focuses on eradicating barriers, the
ADA does not relieve a disabled employee or applicant
from the obligation to perform the essential functions of
the job." Foreman, 113 F.3d 1402 at 1409. An otherwise
qualified individual is "one who is able to meet [**16]
all of a program's requirements in spite of [rather than
"but for"] his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406, 60 L. Ed. 2d 980, 99 S.
Ct. 2361 (1979)(interpreting Rehab. Act)(emphasis
added); Chandler v. City of Dallas, 2 F.3d 1385, 1393
(5th Cir. 1993)(Rehab. Act). To determine whether an
individual is otherwise qualified for a given job, the
Court must conduct a two part inquiry. Chandler, 2 F.3d
at 1393-94. First, it must determine whether the individual could perform the essential function of the job, i.e.,
functions that bear more than a marginal relationship to
the job at issue. Id. Second, if (but only if) the Court
concludes that the individual is not able to perform the
essential functions of the job, it must determine whether
any reasonable accommodation by the employer would
enable the individual to perform those functions. Id. As
with establishing the existence of a handicap, the burden
lies with the plaintiff to show that he is otherwise qualified. Id.
An employee who states she can no longer do the
job disqualifies herself. See [*473] Howard v. North
Mississippi Medical Ctr., 939 F. Supp. 505, 509-10 (N.D.
[**17] Miss. 1996)("It would be more than a little difficult for the court to interpret her dismissal as an adverse
employment decision when Howard herself stated she
could no longer do the job.").
B. Disability
A "disability" includes "a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; a record of such
an impairment; or being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)-(C); Turco, 101 F.3d
at 1092. "Physical impairment" includes "any physiological disorder or condition, or anatomical loss affecting
one or more of the following body systems: neurological,
musculoskeletal, special sense organs, . . . cardiovascular, . . . and hemic . . . ." 29 C.F.R. § 1630.2(h)(1). "Is
regarded as having an impairment" means that the plaintiff: "(1) has a physical or mental impairment that does
not substantially limit major life activities but is treated
by a covered entity as constituting such limitation; (2)
has a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes
of others toward such impairment; or (3) has none of the
impairments defined [in [**18] the regulations] but is
treated by a covered entity as having a substantially limiting impairment." 29 C.F.R. § 1630.2(1)(1)-(3).
To establish a disability under the "regarded as"
component of the ADA, the plaintiff must show that the
employer "regarded him as being substantially limited in
performing either a class of jobs or a broad range of jobs
in various classes." MacDonald v. Delta Air Lines, Inc.,
94 F.3d 1437, 1445 (10th Cir. 1996). "An employer does
not necessarily regard an employee as having a substantially limiting impairment simply because it believes that
she is incapable of performing a particular job; the statutory reference to a substantial limitation indicates instead
than an employer regards an employee as substantially
limited in his or her ability to foreclose generally the
type of employment involved." Foreman, 113 F.3d at
1408; Ellison v. Software Spectrum, Inc., 85 F.3d 187,
192 (5th Cir. 1996); Forrisi v. Bowen, 794 F.2d 931,
934-35 (4th Cir. 1986)(applying Rehab. Act).
"An employer's belief that an employee is unable to
perform one task with an adequate safety margin does
not establish per se that the employer regards the employee as having [**19] a substantial limitation on his
ability to work in general." Chandler, 2 F.3d at 1393. In
Bridges v. City of Bossier, 92 F.3d 329 (5th Cir. 1996),
cert. denied, U.S. , 136 L. Ed. 2d 715, 117 S. Ct. 770
(1997), the Court noted that "the City rejected Bridges
because it feared his condition rendered him a danger to
himself and others as a firefighter." Id. at 331. The court
of appeals affirmed the district court's finding that the
City regarded Bridges as substantially limited in only a
narrow range of jobs and, therefore, Bridges was not
disabled under the ADA. Id. at 332-34.
App. Def. 56
Page 6
"A person is 'regarded as having' an impairment that
substantially limits the person's major life activities when
other people treat that person as having a substantially
limiting impairment. Wooten, 58 F.3d 382 at 385-86.
The focus is on the impairment's effect upon the attitude
of others. Id. This provision is intended to combat the
effects of 'archaic attitudes,' erroneous perceptions, and
myths that work to the disadvantage of persons with or
regarded as having disabilities. Id. The "regarded as"
component of disability "is designed to protect against
erroneous [**20] stereotypes some employers hold regarding certain physical or mental impairments that are
not substantially limiting in fact." Kocsis v. Multi-Care
Management, Inc., 97 F.3d 876, 885 (6th Cir. 1996).
Under that provision, a 'plaintiff must show that the perceived impairment is a substantial limitation on a
major life activity." Id. (emphasis added).
C. Substantial Limitation
"Substantially limits . . . means . . . unable to perform a major life activity that the average person in the
general population can perform; or significantly restricted as to the condition, manner or duration under
which an individual can perform a particular major life
activity as compared to the condition, [*474] manner,
or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. §§ 1630.2(j)(1)(i)-(ii); Robinson v. Global
Marine, 101 F.3d 35, 36 (5th Cir. 1996), cert. denied,
U.S. , 117 S. Ct. 1820, 137 L. Ed. 2d 1028, 1997 WL
82005 (1997). One whose impairment merely affects one
or more major life activities is not disabled. Barfield v.
Bell South Telecommunications, Inc., 886 F. Supp. 1321,
1324 (S.D. Miss. 1995). Factors to be considered [**21]
in determining whether an individual is substantially
limited in a major life activity include: "the nature and
severity of the impairment; (ii) the duration or expected
duration of the impairment; and (iii) the permanent or
long term impact, or the expected permanent or long
term impact of or resulting from the impairment." 29
C.F.R. § 1630.2(j)(2)(i)-(iii).
D. Major Life Activities
"Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i); Robinson, 101 F.3d at 36.
Other major life activities could include lifting, reaching,
sitting or standing. 29 C.F.R. § 1630, Appendix to Part
1630--Interpretive Guidance on Title I of the [ADA] §
1630.2(1); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723,
726 (5th Cir. 1995).
To determine whether a person is substantially limited in a major life activity other than working, courts
look to whether that person can perform the normal activities of daily living. Dutcher, 53 F.3d at 726. Dutcher
makes clear that inability to perform [a] discrete task
does not render a person substantially limited [**22] in
a major life activity. Id.; Ray v. Glidden Co., 85 F.3d
227, 229 (5th Cir. 1996).
"With respect to the major life activity of working . .
. the term substantially limits means 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. The inability to perform a single, particular job
does not constitute a substantial limitation in the major
life activity of working." 29 C.F.R. § 1630.2(j)(3)(i);
Ellison, 85 F.3d at 190; Maulding v. Sullivan, 961 F.2d
694, 698 (8th Cir. 1992), cert. denied, 507 U.S. 910
(1993). "Working" under the ADA "does not mean working at a particular job of that person's choice." Wooten v.
Farmland Foods, 58 F.3d 382, 385-86 (8th Cir. 1995).
Nor is an individual "substantially limited in working
just because he or she is unable to perform a particular
job for one employer . . . ." Foreman, 113 F.3d at 1407.
"The following factors may be considered in determining whether an individual is substantially limited in
the major life activity of 'working': (A) The geographical
area to which the individual [**23] has reasonable access; (B) The 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 (class of jobs); and/or (C) The job from
which the individual has been disqualified because of an
impairment, and the number and types of other jobs not
utilizing similar training, knowledge, skills or abilities,
within that geographical area, from which the individual
is also disqualified because of the impairment (broad
range of jobs in various classes)." 29 C.F.R. §
1630.2(j)(3)(ii)(A)-(C).
The EEOC's Interpretive Guidelines proclaim that an
individual's ability to perform the major life activity of
working should only be considered if the individual is
not substantially limited in any other major life activity.
29 C.F.R. Part 1630, Appendix § 1630.2(j); Barfield, 886
F. Supp. at 1324.
E. Discrimination
"The term 'discrimination' includes limiting, segregating or classifying a job applicant or employee in a
way that adversely affects the opportunities or status of
such [**24] applicant or employee because of the disability of such applicant or employee." 42 U.S.C. §
12112(b)(1)(emphasis added). Discrimination under the
App. Def. 57
Page 7
ADA includes also [*475] "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the
business of such covered entity." 42 U.S.C. §
12112(b)(5)(A)(emphasis added). "Reasonable accommodation means . . . modifications or adjustments to the
work environment, or to the manner or circumstances
under which the position held or desired is customarily
performed, that enable a qualified individual with a disability to perform the essential functions of that position..
. ." 29 C.F.R. § 1630.2(o)(1)(i)-(ii). "Reasonable accommodation may include but is not limited to . . . making
existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and job
restructuring; part-time or modified work schedules; reassignment to a vacant position; [and] acquisition or
modifications of [**25] equipment or devices . . . ." 29
C.F.R. § 1630.2(o)(2)(i)-(ii). The ADA does not require
an employer to promote a disabled employee, nor must
an employer reassign the employee to an occupied position, or to create a new position to accommodate the disabled worker. Chiari v. City of League City, 920 F.2d
311, 318 (5th Cir. 1991)(Rehabilitation Act case); Munoz
v. H & M Wholesale, Inc., 926 F. Supp. 596, 608 (S.D.
Tex. 1996). NM is not required to "bump" other employees to create a vacancy so as to reassign Cannizzaro. See
Weiler v. Household Fin. Corp., 101 F.3d 519, 526 (7th
Cir. 1996). Nor is it required to hire Cannizzaro over
more qualified applicants. Sharpe v. American Tel. &
Tel. Co., 66 F.3d 1045, 1051 (9th Cir. 1995). Nor is it
required to alter its job placement procedures. See
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.
1995), cert. denied, 516 U.S. 1172, 134 L. Ed. 2d 211,
116 S. Ct. 1263 (1996). "In short, the ADA does not require affirmative action in favor of individuals with disabilities. . . . [Instead] it prohibits discrimination against
qualified individuals with disabilities, no more and no
less." Id.
Moreover, [**26] the duty to make a reasonable
accommodation arises only when the individual is disabled; no such duty arises when the individual merely is
"regarded as" being disabled as defined under the ADA.
See Howard v. Widnall, EEOC Appeal No. 01931095,
1994 WL 747979 (E.E.O.C.), at 5 (1994); Equal Employment Opportunity Commission, ADA Case Study
Training: Trainers Manual, Case Study 1, at 6 (1996).
IV. APPLICATION TO FACTS
To survive NM's summary judgment motion, Cannizzaro must meet the threshold burden of establishing
that she is disabled under the statute. Roth v. Lutheran
General Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995);
Schluter v. Industrial Coils, Inc., 928 F. Supp. 1437,
1443 (W.D. Wis. 1996). To do so she must show she is
an otherwise qualified individual with a disability or that
NM regarded her as having an impairment that substantially limited one or more of her major life activities.
Foreman, 113 F.3d at 1407; Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).
A. Qualified Individual With a Disability
Cannizzaro contends she is disabled because she is
substantially limited in one or more major life activities,
[**27] including working. In the alternative, she contends that she is disabled because NM regarded her as
being substantially limited in one or more major life activities, including working. As purported evidence to
support her status, Cannizzaro relies in part on the fact
that "Cannizzaro's doctors have been and continue to be
uncertain of Cannizzaro's future risk of a continuing or
recurrent brain ailment"; "that she "has never been told
by any physician that she will ever be able to regain [the
abilities to bend, lift and fly]" and "there remains no way
to know whether Cannizzaro's condition will deteriorate
or recur." (emphasis added). The Court finds that these
statements do not constitute evidence of the inverse
meaning ascribed to them by Cannizzaro; i.e., they do
not establish that Cannizzaro will suffer a continuing or
recurrent brain ailment and/or that her condition will
deteriorate. Nor do the statements establish that Cannizzaro has been told she will not ever regain her abilities to
bend, lift and fly. [*476] Therefore, particularly in light
of Dr. Finn's diagnosis that Cannizzaro is asymptomatic
and "back to normal," the Court finds that these speculative [**28] statements do not raise a genuine issue of
material fact regarding any alleged long-term impact or
permanent duration of Cannizzaro's "brain ailment." 4
Notwithstanding the foregoing, the Court finds the
statements to be no evidence of disability because bending, and flying are not major life activities under the
ADA, and, as discussed below, Cannizzaro's lifting restrictions do not foreclose generally her ability to work in
a class of jobs or a broad range of jobs in various classes.
4 Nor is there any evidence before the Court to
support Cannizzaro's contention that "the limitations placed upon her in April of 1995 will be
lifelong as a result." Indeed, the very evidence offered by Cannizzaro to suggest the permanency
of her condition supports it temporariness.
Moreover, Cannizzaro has failed to provide evidence establishing she is qualified to perform the essential functions of the positions for which she interviewed.
To the extent that any of the positions required Cannizzaro to perform essential functions [**29] from which
App. Def. 58
Page 8
she was medically restricted, and those positions could
not be restructured to accommodate or eliminate the restrictions, Cannizzaro was not a qualified applicant. See
Foreman, 113 F.3d at 1410; Howard v. North Mississippi Medical Ctr., 939 F. Supp. 505, 509-10 (N.D. Tex.
1996); Wann v. American Airlines, 878 F. Supp. 82, 85
(S. D. Tex. 1994), aff'd, 58 F.3d 636 (5th Cir. 1995).
Cannizzaro has not established, position by position, that
she was qualified to perform each job's essential functions. See Appendix A. Instead, she offers conclusory
statements regarding her qualification. Moreover, she
admits that she was not qualified for the Internal Accounts Payable position due to lack of training in accounting, and for "a few positions" due to her physical
limitations. Cannizzaro Depo. pp. 114-15; Pl. Opp. to
Def. MSJ pp. 6, 17.
Substantial Limitation of a Major Life Activity Other
Than Working
To establish that she is disabled, Cannizzaro must
prove that her impairment has substantially limited a
major life activity. She alleges that, due to her impairment, Cannizzaro is substantially limited in her ability to
"lift, bend and fly". Flying is not listed [**30] as a major
life activity under the regulations. See 29 C.F.R. §
1630.2(i). Cannizzaro does not cite any case law recognizing it as such under the ADA. Regarding lifting and
bending, the case law indicates that such activity involves the performance of a discrete task insufficient,
without more, to establish a disability under the ADA.
See Glidden, 85 F.3d at 229; Dutcher, 53 F.3d at 726.
Instead, the Court is to determine whether Cannizzaro
"can perform the normal activities of daily living." Id.
NM argues, and the evidence supports, that Cannizzaro's
impairment has not substantially limited her lifestyle.
Cannizzaro has gone on a 10-day honeymoon and several weekend trips with her husband and she participates
in recreational and social activities. Cannizzaro Depo.
pp. 24-26. Moreover, the stringent restrictions placed on
Cannizzaro originally appear to have been temporary. As
a result, the restrictions which the Court reviews are
those placed upon her when she returned to work. The
Court finds these are not substantially limiting as contemplated by the ADA.
(2) Substantial Limitation of Major Life Activity of
Working
Cannizzaro contends that her restrictions [**31]
substantially limit her ability to work, particularly in the
retail industry. However, she provides no evidence indicating how she is, in fact, limited in her ability to work.
She has not shown that she is "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 abili-
ties." See 29 C.F.R. § 1630.2(j)(3)(i). Nor has she provided any evidence regarding the essential functions of
the various jobs available within the retail industry. As
has been already stated, "the inability to perform a single,
particular job does not constitute a substantial limitation
in the major life activity of working." Id.; Ellison, 85
F.3d at 190. Based on the foregoing, the Court finds
Cannizzaro is not [*477] a qualified individual with a
disability as contemplated by the ADA, and summary
judgment is granted in NM's favor on that count.
B. Regarded As Being Disabled
Cannizzaro contends that NM failed to hire her into
any of the positions for which she interviewed because it
regarded her as being disabled. She makes various statements allegedly in support of her contention. [**32] See
footnote 3 supra. The Court finds that the only statements which merit discussion as summary judgment evidence of NM's perception of Cannizzaro are the allegedly repeated questions from unspecified interviewers
about her brain condition during the interviews, and the
comment attributed to Earnheart that he allegedly was
not interested in hiring Cannizzaro for the Sales Coordinator position "for her sake" because he felt "the job
would kill her." 5
5 The Court finds the remaining statements to
be mere conclusions, which are not evidence, or
evidence not relevant to or which fails to raise a
genuine issue of material fact regarding NM's
purported perception of Cannizzaro as disabled.
1. Questions Regarding Restrictions
The ADA allows employers to inquire into an employee's ability to perform job-related functions. 42
U.S.C. § 12112(d)(4)(B); 29 C.F.R. § 1630.14(c). See
also Miranda v. Wisconsin Power & Light Co., 91 F.3d
1011, 1017 (7th Cir. 1996). As a result, the fact that
some of the interviewers [**33] may have discussed
Cannizzaro's impairment with her, particularly in light of
the restrictions placed upon her return to work, is not
evidence that NM unlawfully discriminated against Cannizzaro based on a perception that she was disabled. 6
When an employer terminates [or arguably doesn't hire]
an employee based upon physical restrictions imposed by
the employee's doctor, the decision alone does not indicate that the employer regards the employee as having a
substantially limiting impairment. See Wooten, 58 F.3d
at 385-86. In Wooten, the evidence bearing on Farmland
Foods' perception of Wooten's impairment indicated that
its perception was not based upon speculation, stereotype, or myth, but upon a doctor's written restriction of
Wooten's physical abilities. Id. Hence, "Farmland Foods'
decision to terminate Wooten based upon the physical
restrictions imposed by his doctor, when no jobs accom-
App. Def. 59
Page 9
modating those restrictions were currently available,
does not indicate that Farmland Foods regarded Wooten
as having a substantially limiting impairment." Id.
6 NM points out that on many occasions, it was
Cannizzaro who raised the issue of her medical
condition. See Cannizzaro Depo. p. 113; Lara
Decl.. P 4; Krug Decl.. P 4; Wetterau Decl.. P 4.
[**34] 2. Earnheart's Motive
Inasmuch as the evidence indicates that the interviewers were hiring managers for specific positions only,
any evidence regarding their alleged perception of Cannizzaro arguably would be limited to her ability or inability to perform the specific jobs for which they were interviewing. This includes Earnheart, whose alleged
statement appears to corroborate that limitation--it was
"the job" he felt would kill her. Without more, this
statement--constituting at best a mere scintilla of evidence that NM was motivated by archaic attitudes,
and/or erroneous perceptions, myths or stereotypes regarding Cannizzaro's condition--does not raise a genuine
issue that NM regarded Cannizzaro as being substantially
limited in performing either a class of jobs or a broad
range of jobs in various classes.
Taking the record as a whole, the Court finds that
Cannizzaro has failed to raise a genuine issue of material
fact for trial. She has provided no testimony that Earnheart asked her about her medical condition, or that he
commented to her about her illness in any way. The evidence shows that Cannizzaro told NM's managers about
her illness and condition. The evidence provides [**35]
no context for Earnheart's remark--which is related by a
third person--and it is not possible to tell from the remark
that he considered Cannizzaro disabled in general and
thus unable to work, rather than simply believing her
incapable of handling the specific job for which he was
interviewing candidates. Without more, a genuine issue
of material fact for the jury [*478] has not been presented. Defendant is entitled to judgment in its favor on
this count.
C. Discrimination
Cannizzaro complains of two types of discrimination
against her under the ADA. First, that NM failed to make
a reasonable accommodation for the "known and/or perceived disability" of Cannizzaro. Pl. Compl. p. 9. Second, by adversely affecting her employment opportunities with NM because of her disability in various ways,
set out specifically below. Pl. Compl. pp. 10-11.
1. Reasonable Accommodation
The Court has found that Cannizzaro is not disabled,
so no reasonable accommodation by NM would have
been required. Notwithstanding this finding, there is no
evidence that NM could make a reasonable accommodation without eliminating the essential functions of the
jobs requiring Cannizzaro to lift and bend, something
[**36] it is not required to do. Jasany v. United States
Postal Serv., 755 F.2d 1244, 1250 (6th Cir. 1985);
Wann, 878 F. Supp. at 85. There is no evidence before
the Court that vacant positions for which Cannizzaro was
qualified and whose essential functions did not conflict
with Cannizzaro's physical restrictions even existed. See
Wooten, 58 F.3d at 384. Cannizzaro argues also that NM
failed to accommodate her by failing to modify her
"work schedule" to accommodate her medical restrictions, and by failing to "conduct job restructuring so as to
allow Cannizzaro to return to work." Pl. Compl. p. 9. She
provides no evidence, however, that her requests were
reasonable or possible. 7 The burden is on Cannizzaro to
show that a reasonable accommodation is possible 8
Chandler, 2 F.3d at 1394. Moreover, according to the
law, NM did make a reasonable accommodation by interviewing her and considering her for vacant positions.
Weiler, 101 F.3d at 526; Sharpe, 66 F.3d at 1050-51;
Howard, 939 F. Supp. at 510.
7 The Court is hard-pressed to conceive how
modifying Cannizzaro's work schedule would accommodate her weight-lifting, bending and flying
restrictions.
[**37]
8 Cannizzaro attempts unsuccessfully to shift
her burden onto NM when she argues that "NM
has not been able to assert that other positions
[for which Cannizzaro allegedly was qualified]
did not exist or were not open." Pl. Opp. to Def.
MSJ p. 18.
2. Discriminatory Conduct
The ADA prohibits NM from "limiting, segregating
or classifying" Cannizzaro "in a way that adversely affects" her opportunities or status "because of the disability" of Cannizzaro. 42 U.S.C. § 12112(b)(5)(A). The
Court has found Cannizzaro not to be a qualified individual with a disability. Moreover, Cannizzaro has failed
to raise a genuine issue of material fact that NM regarded
her as having an impairment that substantially limits one
or more of her major life activities. As a result, NM is
entitled to judgment in its favor on this count.
V. STATE LAW CLAIMS
A. Negligence
NM argues that Cannizzaro's state law claims for
negligent training, negligent supervision and negligent
retention fail because they are preempted by the Texas
Commission on Human Rights Act; are barred by the
App. Def. 60
Page 10
exclusive remedy provision of [**38]
the Texas
Worker's Compensation Act; and/or are not recognized
as a matter of law in Texas where the alleged misconduct
involves discriminatory treatment. NM has cited the
court to an abundance of law in support of its contentions. 9 Cannizzaro has not responded [*479] in opposition thereto. The Court is persuaded by the arguments
presented and finds they are supported by the law cited.
Therefore, summary judgment is granted in favor of Defendant on Cannizzaro's negligence-based state law
causes of action.
9 See e.g., Cook v. Fidelity Investments, 908 F.
Supp. 438, 442 (N.D. Tex. 1995)(preempting negligent supervision claim); Bates V. Humana, Inc.,
1993 U.S. Dist. LEXIS 20764, 63 Fair Empl.
Prac. Cas. (BNA) 327, 336 (W.D. Tex.
1993)(negligence claim based on alleged discriminatory treatment preempted by TCHRA);
Vincent v. West Tex. State Univ., 895 S.W.2d 469,
473-74 (Tex. App.--Amarillo 1995, no
writ)(TCHRA preempts suits for discrimination
brought under other legal theories); Stinnett v.
Williamson County Sheriff's Dept., 858 S.W.2d
573, 577 (Tex. App.--Austin 1993, writ denied)(same). See also TEX. LAB. CODE §§
406.034(a) & 408.001(a); Ward v. Bechtel Corp.,
102 F.3d 199, 203-04 (5th Cir. 1977)(preempting
premises liability and negligent hiring, retention,
and supervision claims); Barber v. Nationwide
Communications, Inc., No. 3:95-CV-0656-H, slip
op. at 9-10 (N.D. Tex. 1995); Ajaz v. Continental
Airlines, 156 F.R.D. 145, 149 (S.D. Tex.
1994)(negligent hiring claim preempted by exclusive remedy provision); Arnold v. Texas Eastman
Co., No. 2:92-CV-0095, slip op. at 7 (E.D. Tex.
July 2, 1993); Rodriguez v. Naylor Indus., Inc.,
763 S.W.2d 411, 412 (Tex. 1989); Reed Tool Co.
v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985);
Horton v. Montgomery Ward & Co., 827 S.W.2d
361, 364-66, 370 (Tex. App.--San Antonio 1992,
writ denied); Zavala-Nava v. A.C. Employment,
Inc., 820 S.W.2d 14, 15 (Tex. App.--Eastland
1991, writ denied); Estate of Arrington v. Fields,
578 S.W.2d 173, 178 (Tex. Civ. App.--Tyler
1979, writ ref'd n.r.e.).
[**39] B. Emotional Distress
NM argues that Cannizzaro has failed to establish
her entitlement to recovery for intentional infliction of
emotional distress because such an action is preempted
by the Texas Commission on Human Rights Act; is
barred by the exclusive remedy provision of the Texas
Workers' Compensation Act; and/or are wholly unsupported by competent summary judgment evidence estab-
lishing that the alleged conduct was "extreme and outrageous" or that Cannizzaro suffered "severe" emotional
distress. Cannizzaro has not responded in opposition
thereto. As already noted, the Court finds the law cited
by NM supports its preemption and exclusive remedy
arguments. After reviewing the record, the Court agrees
that no competent summary judgment evidence has been
adduced to establish that NM's conduct was "extreme
and outrageous" or that Cannizzaro suffered "severe"
emotional distress as contemplated by applicable law. 10
Summary judgment is, therefore, granted in Defendant's
favor on that count.
10 See, e.g., Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33-34 (5th Cir.
1992)(per curiam); Wilson v. Monarch Paper
Co., 939 F.2d 1138, 1143 (5th Cir. 1991)(citing
Restatement (Second) of Torts § 46 comment d
(1965)); Johnson v. Hines Nurseries, 950 F.
Supp. 175 (N.D. Tex. 1996)(employer's alleged
failure to accommodate plaintiff's disability, callous remarks regarding plaintiff's condition, and
mocking comments about plaintiff's speech not
extreme and outrageous); Badgett v. Northwestern Resources Co., 818 F. Supp. 998, 1003 (W.D.
Tex. 1993); Rayburn v. Equitable Life Assurance
Society, 805 F. Supp. 1401, 1410 (S.D. Tex.
1992); Randall's Food Mkts., Inc. v. Johnson, 891
S.W.2d 640, 644 (Tex. 1995); Wornick Co. v.
Casas, 856 S.W.2d 732, 734 (Tex. 1993);
Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.
1993); Farrington v. Sysco Food Servs., Inc., 865
S.W.2d 247, 254 (Tex. App.--Houston [1st Dist.]
1993, writ denied)(termination itself insufficient
to state a claim for intentional infliction of emotional distress in Texas); Benavides v. Moore, 848
S.W.2d 190, 195 (Tex. App.--Corpus Christi
1992, writ denied); K.B. v. N.B., 811 S.W.2d 634,
640 (Tex. App.--San Antonio 1991, writ denied),
cert. denied, 504 U.S. 918 (1992).
[**40] VI. CONCLUSION
Based on the foregoing, the Court finds that Plaintiff
has failed to establish her entitlement to a continuance,
has failed to establish one or more elements of her causes
of action under 42 U.S.C. §§ 12102(2)(A),
12112(b)(5)(A), 12102(2)(C) and 12112(a)&(b)(1), and
has failed to establish any of her state law causes of action.
IT IS THEREFORE ORDERED, ADJUDGED
AND DECREED that Plaintiff's Motion for Continuance is DENIED; that Defendant's Motion for Summary
Judgment is GRANTED; that JUDGMENT be entered
in favor of Defendant that Plaintiff take nothing in all
App. Def. 61
Page 11
actions against Defendant, that Defendant be awarded its
just and reasonable costs pursuant to Federal Rule of
Civil Procedure 54(d)(1) and that Cause No. 3:96-CV0934-P is hereby CLOSED.
FINAL JUDGMENT - FILED AUG 25 1997; ENTERED ON DOCKET AUG 26 1997
Pursuant to the Court's Memorandum Opinion and
Order filed in this action on August 20, 1997 the Court
has determined that,
Signed this 20th day of August 1997.
Jorge A. Solis
it is ORDERED, ADJUDGED and DECREED
that:
ORDER - FILED NOV 20 1997
Now before the Court are Plaintiff's Motion for Reconsideration and Brief in Support, filed September 8,
1997; Defendant's Response thereto, filed September 29,
1997; and Plaintiff's Reply, filed October 14, 1997. Having considered the argument and authorities presented,
[**41] and noting that Plaintiff has failed to present an
intervening change in controlling law, the availability of
new evidence not previously considered, or the need to
correct a clear error of law or to prevent manifest injustice, the Court finds Plaintiff's motion to be without
merit. Atkins v. Marathon LeTourneau Co., 130 F.R.D.
625, 626 (S.D. Miss. 1990). Said motion is hereby DENIED.
Signed this 20th day of November, 1997.
1. Plaintiff Tami L. Cannizzaro, take nothing of her
claims against the defendant Neiman Marcus, Inc.
2. Accordingly, all costs incurred by the defendant,
shall be assessed against the plaintiff.
IT IS SO ORDERED.
Signed this 22nd day of August, 1997 at Dallas,
Texas.
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS
[*480] APPENDIX A
Jorge A. Solis
________________________________________________________________________________
Position
Interviewer
Stated Reasons
1) Internal Accounts Payable
Bruce Carrico
Cannizzaro ("C") and Carrico
Auditor
agreed C lacked necessary
qualifications; also C not
interested; salary was below
C's current pay.
No discussion of C's medical
condition.
2) Import Buyer
Rose Lara
Much travel to Far East
required and lifting boxes
weighing up to 40 lbs.; C
expressed concern because of
medical restrictions placed on
her and informed Lara of
same.
3) Workbench Analyst
Liz Beatty
Beatty considered C
overqualified; concerned C
would be unchallenged and
bored; found C inflexible for
position.
No discussion of medical
App. Def. 62
Page 12
Position
4) Manager of Executive
Recruitment
Interviewer
Mary Krug
Stated Reasons
condition during interview.
Required extensive travel and
carrying materials; C
informed Krug of her
restrictions re: lifting, but not
flying; Krug chose another
applicant because had
strongest track record; also
better personality for job
("driven").
Krug testified medical
condition didn't play role in
decision. Krug didn't believe
carrying materials would pose
problem.
5) Sales Coordinator
Bill Earnheart
Selected another applicant
who was an asst. buyer
because had recently been
faced with same problems
currently in department; other
applicant convinced Earnheart
she could immediately solve
organizational and follow-up
problems; other applicant
appeared extremely
enthusiastic and eager, unlike
C, who didn't appear overly
enthusiastic.
Earnheart claims not to recall
any discussion of C's medical
condition or health and claims
they did not play a role in his
decision.
6) Asst. Silver Buyer
Annette Kahn
Webster
Position did not become
vacant.
7) Clearance Division
Administrator
Krista
Wetterau
Overnight travel, lifting,
moving heavy trolleys and
merchandise weighing 25-30
lbs., pulling and pushing
required; C informed
Wetterau of restrictions and
said would have to check
with doctor; Wetterau chose
another applicant because had
worked with shoes, which
App. Def. 63
Page 13
Position
Interviewer
Stated Reasons
comprised 1/3 of all clearance
merchandise; also, other
applicant knew how to use
computer system.
Contends that C's need to
speak with doctor did not
factor into decision.
________________________________________________________________________________
[**42]
App. Def. 64
Page 1
FRANKIE P. CARTER AND TMC AUTO TRANSPORT, INC., APPELLANTS v.
MIKE FLOWERS, APPELLEE
NO. 02-10-00226-CV
COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH
September 29, 2011, Delivered
PRIOR HISTORY: [*1]
FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY.
COUNSEL: For APPELLANT(S): SCOTT W. SELF,
TIMOTHY R. GEORGE, P. WES BLACK, FEE SMITH
SHARP & VITULLO, LLP, DALLAS, TEXAS.
For APPELLEE(S): VIOLET NWOKOYE, THE
NWOKOYE LAW OFFICE, ARLINGTON, TEXAS.
JUDGES: PANEL: DAUPHINOT, WALKER, and
MCCOY, JJ. WALKER, J. concurs without opinion.
OPINION BY: LEE ANN DAUPHINOT
OPINION
MEMORANDUM OPINION1
1 See Tex. R. App. P. 47.4.
Appellee Mike Flowers purchased a 2000 Lincoln
Town Car at an auction for the purpose of reselling it at
his business, a used car lot in New Mexico. He hired
Appellant TMC Auto Transport, Inc., owned by Appellant Frankie P. Carter, to transport the vehicle from an
auction in Texas to New Mexico.
While TMC's trailer was stopped at a red light, a car
struck the rear of the trailer, moved up onto the trailer,
and hit Flowers's car. The driver of this vehicle was arrested for DWI.
Flowers's car was damaged in the accident. Upon instruction by an adjustor with TMC's insurance carrier,
TMC dropped off the vehicle in the parking lot of the
auto auction, where the carrier had it picked up by a
wrecker. The insurance carrier and Flowers engaged in
negotiations over compensation. Flowers rejected the
insurance carrier's offers, and at some point the insurance
company sold the car at a salvage auction for $1,575.
Flowers filed suit against TMC and Carter for
breach of contract and breach of warranty. Flowers later
[*2] amended his petition to add claims for breach of
mutual benefit bailment, conversion, negligence, and
breach of duty of good faith and fair dealing.
The trial court denied TMC and Carter's motion for
summary judgment, and the case was tried to the bench.
Flowers introduced evidence showing that the Bluebook
retail value of a 2000 Lincoln Town Car in excellent
condition several months after the accident was $13,150.
Flowers testified that he did not remember what he paid
for the car at the auction but gave a ballpark figure of "a
little over $10,000," which he stated was less than retail
but a little more than wholesale. Flowers also testified
that from the pictures he saw, "[he] knew [the car] was
totaled" in the accident, but because he never saw the car
after the accident, he could not give an estimate as to its
salvage value after the accident. TMC produced evidence
that the highest bidder at the salvage auction had bid
$1,575.
The trial court rendered judgment for Flowers on his
breach of bailment contract claim against TMC and
awarded him $10,000 in actual damages and $11,910 in
attorney's fees. The court rendered a take nothing judgment on Flowers's claim against Carter and a judgment
[*3] in favor of TMC on Flowers's remaining claims.
In its first issue, TMC argues that the trial court
erred by granting judgment for Flowers on his breach of
bailment contract claim in the face of a deemed admis-
App. Def. 65
Page 2
2011 Tex. App. LEXIS 7829, *
sion stating that "Defendants did not breach any contract
made the basis of this lawsuit." TMC expressly waived
this issue during oral argument before this court, and we
therefore do not consider it.
In its second issue, TMC argues that the trial court
erred by granting judgment for Flowers on his breach of
contract claim when TMC's only legal duty was to exercise an ordinary or reasonable degree of care in hauling
Flowers's vehicle, and there was no evidence of any negligence on the part of TMC when its trailer was hit from
behind by an intoxicated driver.
"The foundation of a bailment lies in contract."2 A
bailment contract may be express or implied.3 In either
case, for a bailment to arise, the bailor must deliver personal property to the bailee for a specific purpose, the
bailee must accept delivery of the property, and the parties must agree that the specific purpose will be realized
and that the property will be either returned to the bailor
or dealt with according to the bailor's [*4] direction.4
2 Sanroc Co. Int'l v. Roadrunner Transp., Inc.,
596 S.W.2d 320, 322 (Tex. Civ. App.--Houston
[1st Dist.] 1980, no writ).
3 State v. $281,420.00 in U.S. Currency, 312
S.W.3d 547, 551 (Tex. 2010) (stating that to create a bailment, there must be an express or implied contract between the parties); see also Int'l
Freight Forwarding, Inc. v. Am. Flange, 993
S.W.2d 262, 268 (Tex. App.--San Antonio 1999,
no pet.) (noting that a bailment contract may arise
by implication of law).
4 See $281,420.00 in U.S. Currency, 312 S.W.3d
at 551.
The bailment relationship is governed by principles
of negligence.5 That is, the bailment contract gives rise to
a duty on the part of the bailee, and, in the case of a
bailment for mutual benefit of the parties,6 that duty is to
take reasonable care in safekeeping the property that is
the subject matter of the bailment.7 The bailee has an
obligation to return the property to the bailor when the
purpose of the bailment has ended or to keep the property until the bailor reclaims it.8
5 Bank One, Tex., N.A. v. Stewart, 967 S.W.2d
419, 432 (Tex. App.--Houston [14th Dist.] 1998,
pet. denied).
6 Andrews v. Allen, 724 S.W.2d 893, 895-96
(Tex. App.--Austin 1987, no writ) [*5] (defining
a bailment for mutual benefit as one in which the
bailment was created as an incident of a business
in which the bailee makes a profit).
7 Trammell v. Whitlock, 150 Tex. 500, 504, 242
S.W.2d 157, 159 (1951); Ampco Auto Parks, Inc.
v. Williams, 517 S.W.2d 401, 403 (Tex. Civ. App.-Dallas 1974, writ ref'd n.r.e.).
8 English v. Dhane, 156 Tex. 231, 233, 294
S.W.2d 709, 711 (1956); Allright Auto Parks, Inc.
v. Moore, 560 S.W.2d 129, 130 (Tex. Civ. App.-San Antonio 1977, writ ref'd n.r.e.); see also D &
D Assocs., Inc. v. Sierra Plastics, Inc., 570
S.W.2d 205, 206 (Tex. Civ. App.--Waco 1978, no
writ) ("[E]very bailment contract contemplates
return of the property bailed, either in the same or
altered form, or its delivery to a third person with
the express or implied consent of the bailor.").
The law does not provide a single, specific cause of
action for a breach of a bailment contract,9 and a bailee
who breaches the duties arising from the bailment contract may be liable for breach of the contract or for negligence in the performance of his or her duty arising from
the contract.10 In an action based on a bailment for mutual benefit of the parties, once the bailor proves that the
property [*6] was not returned, a rebuttable presumption
arises of negligence by the bailee in the performance of
his duties, establishing a prima facie case of liability
against the bailee.11
9 W.E. Stephens Mfg. Co. v. Goldberg, 225
S.W.3d 77, 81 (Tex. App.--El Paso 2005, pet. denied) ("A bailment relationship does not create a
specific cause of action but instead allows the
bailor to choose specific relief for breach of the
bailment contract, e.g., an action for breach of
contract, or an action for conversion.").
10
Barker v. Eckman, 213 S.W.3d 306, 310
(Tex. 2006) (noting that claims for breaches of
bailment agreements generally can be brought as
contract or tort claims); see also Staley v. Colony
Union Gin Co., 163 S.W. 381, 382 (Tex. Civ.
App.--Amarillo 1914, no writ) (quoting Davis v.
Hurt, 114 Ala. 146, 152, 21 So. 468, 469 (1897)
for the proposition that an unexplained failure to
deliver the bailed property raises a presumption
of negligence on the part of the bailee and may
give rise to liability for breach of the bailment
contract or for negligence in the performing the
duty that arises from the contract).
11 Buchanan v. Byrd, 519 S.W.2d 841, 843
(Tex. 1975); Sanroc Co. Int'l, 596 S.W.2d at 322.
The [*7] bailee is generally not liable, however, if
the property subject to the bailment has been injured by
accident or by some other means that was entirely not the
bailee's fault.12 And when the property is delivered to a
third party at the bailor's direction, the bailee has no liability for any subsequent loss or nondelivery of the
bailed property.13
App. Def. 66
Page 3
2011 Tex. App. LEXIS 7829, *
12 Whitlock v. Trammell, 237 S.W.2d 451, 453
(Tex. Civ. App.--Fort Worth), aff'd, 150 Tex. 500,
242 S.W.2d 157 (1951).
13 Andrews, 724 S.W.2d at 899.
TMC is correct that it is not liable for breach of the
bailment contract based on the damage to the vehicle
caused by the drunk driver if TMC's negligence did not
allow the accident to occur because, in that case, the
damage to the vehicle was not caused by TMC's failure
to take reasonable care of the vehicle. And, as Flowers
admitted at trial, the accident was caused solely by the
drunk driver.
But TMC still had an obligation under the bailment
contract to return the property to Flowers, even in its
altered state.14 It failed to do so. TMC could have
avoided liability by proving that, through no fault of its
own, the vehicle had been damaged to such an extent that
it could not be returned.15 But TMC [*8] did not do so.
Nor did TMC establish that while in the insurance company's possession, the vehicle was destroyed or disappeared through no fault of TMC or the insurance company.16 And TMC does not argue that it delivered the
vehicle to the insurance company at Flowers's direction
or that Flowers's consent to having the property delivered
to the insurance company created a subsequent bailment,
and therefore TMC cannot escape liability on this basis.17
Although Carter testified that TMC did not have a
wrecker that could move the damaged vehicle, TMC did
not establish that it was impossible to move the vehicle-in fact, the evidence established that the vehicle was
moved. Carter acknowledged at trial that he did not
know what happened to Flowers's vehicle. TMC
breached its duty under the bailment contract, not when
the drunk driver struck the vehicle, but when it delivered
the vehicle to a third party and then lost track of it. We
overrule TMC's second issue.
14 See Sierra Plastics, Inc., 570 S.W.2d at 206.
15 See Whitlock, 237 S.W.2d at 453.
16 See Barnett-Miron Enters., Inc. v. Roneal
Martin, Inc., 742 S.W.2d 530, 532 (Tex. App.-Fort Worth 1987, no pet.) (holding that even if
the bailee erred [*9] by delivering property subject to a bailment to a third party, the bailee was
not liable for the property's loss because it had
been destroyed by a fire that was not caused by
the fault of the bailee or the third party).
17 See Andrews, 724 S.W.2d at 899.
In its third issue, TMC argues that the trial court
erred by granting judgment on Flowers's breach of contract claim when TMC conclusively established its affirmative defense of impossibility of performance. Impossibility is a defense to a breach of contract action,18
and bailment contracts are generally governed by the
same rules that govern other contracts.19 We agree with
TMC that, due to circumstances beyond its control, it
was impossible for TMC to deliver the car to Flowers in
the same condition as when TMC took the car into its
possession. But TMC did not establish that it was impossible for TMC to deliver the vehicle at all.
18 Centex Corp. v. Dalton, 840 S.W.2d 952, 954
(Tex. 1992) (recognizing impossibility of performance as a defense to a breach of contract action).
19 Sanroc Co., 596 S.W.2d at 322.
In its reply brief, TMC argues that the trial court
awarded Flowers the full value of the undamaged vehicle
even though it would have [*10] been impossible for
TMC to deliver to Flowers an undamaged vehicle. A
plaintiff usually has the burden of proving every element
of his claim, including damages.20 Flowers offered evidence of the value of the vehicle prior to the accident but
did not provide any evidence of the value of the vehicle
after it had been damaged in the accident. TMC produced some evidence of the vehicle's value after the accident, but only in the form of the bids at the salvage
auction. In a letter to the parties, the trial court stated that
TMC was not liable for the damage to the vehicle caused
by the accident but that TMC "to some extent, deprived
[Flowers] of the opportunity to evaluate the loss" by
turning the vehicle over to the insurance company "and
wash[ing] its hands." The court reiterated this conclusion
in what appears to be the trial court's findings of fact and
conclusions of law, in which the court again stated that
by relinquishing the vehicle to the insurance company
and then "wash[ing] its hands," TMC "deprived [Flowers] of the opportunity to properly evaluate the loss."21
20 See Lakewood Pipe of Tex., Inc. v. Conveying Techniques, Inc., 814 S.W.2d 553, 556 (Tex.
App.--Houston [1st Dist.] 1991, no writ).
21 The [*11] trial court did not file its own
findings of fact and conclusions of law, but the
bottom of Flowers's proposed findings of fact and
conclusions of law bears what appears to be the
signature of the trial court.
In a bailment claim, a trial court may in some circumstances award damages based on the value of the
property at the time of delivery to the bailee.22 We agree
with the trial court that TMC's actions prevented Flowers
from providing evidence of the value of the vehicle after
it was damaged, and thus, the trial court correctly
awarded damages based on the value of the vehicle at the
time of delivery to TMC, and Flowers did not have to
produce evidence of the vehicle's value after the damage
occurred. We therefore overrule TMC's third issue.
App. Def. 67
Page 4
2011 Tex. App. LEXIS 7829, *
22 See, e.g., Kirkland v. Mission Pipe & Supply
Co., 182 S.W.2d 854, 855-56 (Tex. Civ. App.-1944, writ ref'd w.o.m.) (holding that the correct
measure of damages to a pipe that was the subject
of a bailment was its value at the time it was delivered to the appellant and not at the time of its
conversion because appellant had agreed to return
the pipe if he did not purchase it, a large part of
the pipe had been lost by appellant's employees,
and [*12] awarding the value of the pipe at the
time of conversion would have allowed the appellee free use of the pipe without paying rental for
it and would not have compensated the appellant
for the wear and tear on the pipe).
TMC argues in its fourth and final issue that the trial
court erred by granting judgment for attorney's fees when
the evidence was legally and factually insufficient to
support a breach of contract claim, there was a deemed
admission negating the breach of contract claim, and
TMC conclusively established its affirmative defense of
impossibility of performance. We have already overruled
these same arguments with respect to TMC's first three
issues, and, accordingly, we also overrule them with respect to TMC's fourth issue.
In its reply brief, TMC argues that there was no basis for an award of attorney's fees where (1) Flowers
failed to present his demand to TMC as required by section 38.002 of the civil practice and remedies code, and
(2) Flowers failed to disclose in response to discovery
requests the amount or method of calculating such fees
as required by rule 194.2 of the Texas Rules of Civil
Procedure.
Under the statutory provision authorizing recovery
of attorney's [*13] fees for a breach of contract claim,
the claimant must have presented the claim to the opposing party or to a duly authorized agent of the opposing
party.23 The purpose of the presentment requirement is to
allow the person against whom the claim is asserted an
opportunity to pay the claim within thirty days without
incurring an obligation for attorney's fees.24 To recover
attorney's fees, the plaintiff bears the burden of both
pleading and proving presentment, but no particular form
of presentment is required.25
23 Tex. Civ. Prac. & Rem. Code Ann. § 38.002
(West 2008); Panizo v. Young Men's Christian
Ass'n of Greater Houston Area, 938 S.W.2d 163,
168 (Tex. App.--Houston [1st Dist.] 1996, no
writ).
24 Jones v. Kelley, 614 S.W.2d 95, 100 (Tex.
1981).
25 VingCard A.S. v. Merrimac Hospitality Sys.,
Inc., 59 S.W.3d 847, 867 (Tex. App.--Fort Worth
2001, pet. denied).
Flowers testified that he did not ask Carter to return
his vehicle but that at some point, he told his attorney to
have "them" bring him the vehicle "if they don't want to
settle with" him and that "[i]f they don't want to pay
[him] the value, bring [him] the car." When asked if that
demand had been related to Cater "or [*14] his representative," Flowers testified, "Not to my knowledge, but it
was related to him." Flowers testimony does not establish to whom any demand for the vehicle or a settlement
was made or whether it had been made thirty days prior
to trial or judgment26 and shows that Flowers had no personal knowledge of whether any demand had been made.
26 See Tex. Civ. Prac. & Rem. Code Ann. §
38.002 (allowing a party thirty days after presentment to tender payment on a claim before attorney's fees may be recovered); Bd. of County
Comm'rs of County of Beaver Okla. v. Amarillo
Hosp. Dist., 835 S.W.2d 115, 127 (Tex. App.-Amarillo 1992, no writ) (noting that some courts
of appeals have held that presentment is sufficient
if made thirty days prior to judgment, while others have held that presentment must be made
thirty days prior to trial); see also McDowell v.
Bier, No. 02-09-00231-CV, 2010 Tex. App.
LEXIS 2546, 2010 WL 1427244, at *6 (Tex. App.-Fort Worth Apr. 8, 2010) (mem. op.) (stating
that presentment must be made "at least thirty
days before judgment") (emphasis added); Marifarms Oil & Gas, Inc. v. Westhoff, 802 S.W.2d
123, 127 (Tex. App.--Fort Worth 1991, no writ)
(holding that evidence of presentment was sufficient where [*15] the evidence showed that demand had been made in a deposition taken more
than thirty days prior to trial).
Flowers's attorney, however, testified that she had
made a demand on TMC's insurance company, and she
asserted the same fact in a post-trial brief to the trial
court. Section 38.002 allows presentment of a claim to a
"duly authorized agent."27 TMC argues that TMC never
authorized an insurance agent to receive demands that
TMC pay a claim and that the agent was only concerned
with demands made to the insurance company for payment by the insurance company. The insurance contract
between TMC and its insurer is not in the record, nor is
any other evidence that the insurance policy covered the
bailment contract claim presented by Flowers. But the
insurance company acted as TMC's agent as far as compensating Flowers for damage caused by the drunk
driver,28 and no evidence shows that the agency relationship did not extend to covering TMC's damages that
arose from TMC's breach of the bailment contract. We
overrule this argument.
27 Tex. Civ. Prac. & Rem. Code Ann. § 38.002.
App. Def. 68
Page 5
2011 Tex. App. LEXIS 7829, *
28 See Mandola v. Mariotti, 557 S.W.2d 350,
352 (Tex. Civ. App.--Houston [1st Dist.] 1977,
writ ref'd n.r.e.) (stating [*16] that "[o]rdinarily
the insurer is not an agent of the insured merely
because it performs acts beneficial to the insured"
but that, as to an indemnity insurer, the insurer
"may, by retaining full control of actions against
the insured, become the agent of the insured in
taking action under such a reservation of authority"); cf. Pattison v. Highway Ins. Underwriters,
278 S.W.2d 207, 212 (Tex. Civ. App.--Galveston
1955, writ ref'd n.r.e.) (stating that the adjuster
was not the agent of the insured and that "[t]he
insured, not having any right to negotiate the settlement, cannot be held liable for the representation of the insurer's claims adjuster").
As for TMC's argument that the fees were not recoverable because Flowers did not disclose his attorney's
fees under civil procedure rule 194.2(d), that rule requires disclosure of "the amount and any method of calculating economic damages."29 Attorney's fees are not
economic damages and are therefore not required to be
disclosed under rule 194.2(d).30 TMC does not complain
about any failure by Flowers to disclose his attorney as a
testifying expert on attorney's fees under rule 194.2(f).31
Accordingly, we overrule TMC's fourth issue.
29 Tex. R. Civ. P. 194.2(d).
30 See [*17] Wilen v. Falkenstein, 191 S.W.3d
791, 805 (Tex. App.--Fort Worth 2006, pet. denied) (citing general rule that attorney's fees cannot be recovered as damages); Shook v. Walden,
304 S.W.3d 910, 921 (Tex. App.--Austin 2010, no
pet.) (holding that attorney's fees awarded under
chapter 38 are not "economic damages"); see also
Southland Lloyds Ins. Co. v. Cantu, No. 04-0900705-CV, 2011 Tex. App. LEXIS 2251, 2011 WL
1158244, at *13 n.7 (Tex. App.--San Antonio
Mar. 30, 2011, no pet.); Shafer v. Gulliver, No.
14-09-00646-CV, 2010 Tex. App. LEXIS 9021,
2010 WL 4545164, at *11 (Tex. App.--Houston
[14th Dist.] Nov. 12, 2010, no pet.); McCarthy v.
Padre Beach Homes, Inc., No. 13-01-00846-CV,
2003 Tex. App. LEXIS 7585, 2003 WL 22025858,
at *4 (Tex. App.--Corpus Christi Aug. 29, 2003,
no pet.) (mem. op.) ("[A]ttorney fees are not economic damages."); Sec. State Bank v. Spinnler,
55 S.W.2d 128, 129 (Tex. Civ. App.--Amarillo
1932, writ dism'd); Heidemann v. Martinez, 173
S.W. 1166, 1167 (Tex. Civ. App.--San Antonio
1915, no writ).
31 See Tex. R. Civ. P. 194.2(f).
Flowers argues in a crosspoint that although the trial
court awarded him attorney's fees, he has incurred more
attorney's fees for post-trial work and for work on this
appeal. He states that he requested an additional award
for [*18] these fees in an amended affidavit of cost filed
in the trial court and in his response to TMC's motion for
new trial, and he contends that the trial court should have
awarded him the fees. As TMC points out, Flowers did
not file a notice of appeal in this cause. Because Flowers
failed to file a notice of appeal, we decline to consider
his crosspoint.32
32 See Tex. R. App. P. 25.1(b),(c).
Having overruled all of TMC's issues and Flowers's
crosspoint, we affirm the trial court's judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY,
JJ.
WALKER, J. concurs without opinion.
DELIVERED: September 29, 2011
App. Def. 69
Page 1
FOCUS - 7 of 64 DOCUMENTS
Marvin DAVIS, Plaintiff-Appellant, v. FLORIDA POWER & LIGHT CO., a Florida Corporation, Defendant-Appellee.
Nos. 99-4076, 99-10524.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
205 F.3d 1301; 2000 U.S. App. LEXIS 3665; 10 Am. Disabilities Cas. (BNA) 492; 13
Fla. L. Weekly Fed. C 444
March 10, 2000, Decided
March 10, 2000, Filed
SUBSEQUENT HISTORY: [**1] Certiorari Denied
October 10, 2000, Reported at: 2000 U.S. LEXIS 6645.
PRIOR HISTORY: Appeals from the United States
District Court for the Southern District of Florida. (No.
97-08151-CV-DTKH). Daniel T.K. Hurley, Judge.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff terminated employee appealed trial court orders granting defendant
former employer's summary judgment motion and denying plaintiff's motion for relief from judgment, entered
by the United States District Court for the Southern District of Florida, in a case where he alleged defendant
violated the Americans with Disabilities Act of 1990.
OVERVIEW: Plaintiff terminated employee sued defendant former employer. Plaintiff alleged defendant
violated the Americans with Disabilities Act of 1990, 42
U.S.C.S. § 12101 et seq. (ADA), when it terminated him
after he sustained a back injury. Plaintiff wanted defendant to agree that plaintiff would not have to work overtime. However, plaintiff's job required mandatory overtime work. Alternatively, plaintiff asked he be allowed to
work selective overtime. However, that requested accommodation contravened his union's collective bargaining agreement. The trial court granted defendant's summary judgment motion and denied plaintiff's relief from
judgment motion. Plaintiff appealed. The court affirmed.
The court held plaintiff was not protected by the ADA
because he was not a qualified individual since he could
not perform an essential job function, working mandatory overtime. The court also held accommodations he
proposed were unreasonable as a matter of law since they
contravened the seniority provisions of his collective
bargaining agreement.
OUTCOME: Grant of defendant former employer's motion for summary judgment and denial of plaintiff former
employee's motion for relief from judgment affirmed
because plaintiff was not a qualified individual protected
by the Americans with Disabilities Act of 1990 and his
requested accommodations were unreasonable as a matter of law.
General Overview
Novo Review
[HN1] An appellate court reviews the district court's
grant of summary judgment de novo, applying the same
legal standards as the district court. Summary judgment
is appropriate where there is no genuine issue of material
fact. Fed. R. Civ. P. 56(c).
Civil Procedure > Judgments > Relief From Judgment
App. Def. 70
Page 2
205 F.3d 1301, *; 2000 U.S. App. LEXIS 3665, **;
10 Am. Disabilities Cas. (BNA) 492; 13 Fla. L. Weekly Fed. C 444
Abuse of Discretion
[HN2] A review of the denial of a Fed. R. Civ. P. 60(b)
motion is for an abuse of discretion.
Labor & Employment Law > Discrimination > Accommodation
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Covered
Entities
Undue Hardship
[HN3] The Americans with Disabilities Act of 1990, 42
U.S.C.S. § 12101 et seq. (ADA), provides that no covered
employer shall discriminate against a qualified individual
with a disability because of the disability of such individual in any of the terms, conditions, or privileges of
employment. 42 U.S.C.S. § 12112(a) (1994). The ADA
imposes upon employers the duty to provide reasonable
accommodations for known disabilities unless doing so
would result in undue hardship to the employer. The
ADA places the burden on the employee to establish a
prima facie case of disability discrimination. To establish
a prima facie case of disability discrimination, a plaintiff
must prove that (1) he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful
discrimination because of his disability.
[HN4] A "qualified individual with a disability" is an
individual with a disability who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or
desires. 42 U.S.C.S. § 12111(8).
Labor & Employment Law > Discrimination > Disability Discrimination > General Overview
[HN5] Whether a function is essential is evaluated on a
case-by-case basis by examining a number of factors.
The Americans with Disabilities Act, 42 U.S.C.S. §
12101 et seq. (ADA), provides that consideration shall be
given to the employer's judgment as to what functions of
a job are essential and the employer's written description
for that job. 42 U.S.C.S. § 12111(8). The ADA regula-
tions provide that other factors to consider are: (1) the
amount of time spent on the job performing the function,
(2) the consequences of not requiring the incumbent to
perform the function, (3) the terms of the collective bargaining agreement, (4) the work experience of past incumbents in the job, and (5) the current work experience
of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3)
(1999).
Admiralty Law > Maritime Contracts > General Overview
Labor & Employment Law > Discrimination > Disability Discrimination > Public Accommodations
[HN6] An accommodation that contravenes the seniority
rights of other employees under a collective bargaining
agreement is unreasonable as a matter of law.
Labor & Employment Law > Discrimination > Disability Discrimination > Public Accommodations
§ 12101 et seq. (ADA), does not require disabled individuals to be accommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees. Collectively bargained seniority rights have a
pre-existing special status in the law and the United
States Congress to date has shown no intent to alter this
status by the duties created under the ADA.
COUNSEL: For Davis, Marvin, Appellant (99-4076GG): Levine, Daniel R., Muchnick, Wasserman & Dolin,
Hollywood, FL.
For Florida Power & Light Company, Appellee (994076-GG): Johnson, Carmen S., Muller, Mintz, Kornreich, et al., Miami, FL. Hayes, Susan Maupin, Muller,
Mintz, Kornreich, Caldwell, P.A., Miami, FL.
For Equal Employment Opportunity Commission,
Amicus (99-4076-GG, 99-10524-GG): Goldstein, Jennifer, Office of Gen Cnsl, Washington, DC.
For Florida Power & Light Company, Appellee (9910524-GG): Bramnick, James S., Muller, Mintz, Kornreich, et al, Miami, FL.
JUDGES: Before BLACK and HULL, Circuit Judges,
and GOODWIN *, Senior Circuit Judge.
* Honorable Alfred T. Goodwin, Senior U.S.
Circuit Judge for the Ninth Circuit, sitting by designation.
App. Def. 71
Page 3
205 F.3d 1301, *; 2000 U.S. App. LEXIS 3665, **;
[**2]
OPINION BY: HULL
OPINION
[*1302] HULL, Circuit Judge:
Plaintiff Marvin Davis ("Davis") appeals the entry of
judgment for Defendant Florida Power & Light Company ("FPL") on his employment discrimination claims
under the Americans with Disabilities Act of 1990
("ADA"). After review, we affirm the district court's
determination that Davis failed to establish a prima facie
case of disability discrimination for two reasons. First,
FPL's mandatory overtime work was an essential function of Davis's job of reconnecting electrical power service for FPL's customers. Davis was not a qualified individual protected by the ADA because he could not work
the overtime FPL required. Second, Davis's requested
accommodations of no or selective overtime work contravened the seniority provisions of his union's collective
bargaining agreement [*1303] and were unreasonable
accommodations as a matter of law.
I. FACTUAL BACKGROUND
In 1985, Davis began work with FPL, a utility company providing electricity to businesses and residences
throughout Florida. Overtime was required at FPL due to
the nature of its electric utility business, including the
need to maintain a steady flow of power, to remedy
power outages, and to reconnect [**3] power quickly to
its customers. In completing his job application, Davis
indicated his agreement to work overtime as a condition
of employment. 1
1
Specifically, Davis answered "yes" to this
question: "FPL must provide 24-hour-a-day service to its customers. Therefore, many of our jobs
require employees to sometimes work overtime....
Are you agreeable, as a condition of employment,
to work whatever schedule is necessary to help us
meet ... our obligations to our customers?"
A collective bargaining agreement with the International Brotherhood of Electrical Workers ("IBEW") governed FPL's relationship with many employees, including
Davis. Because most FPL jobs required overtime, that
agreement dictated how FPL assigned overtime work.
The agreement provided that FPL must offer voluntary
overtime on a most-senior to least-senior basis. If more
overtime is needed, mandatory overtime must be imposed on the most junior employees first. The agreement
also allowed FPL to require employees to work "holdover overtime, [**4] " which was assigned to employees
already on a job and irrespective of seniority.
In 1990, Davis sustained a back injury on the job
while working as a lineman. Davis was placed on "light
duty" and later diagnosed as having a herniated disc.
After treatment, Davis returned to "full duty." When his
lineman duties aggravated his back condition, Davis's
doctor suggested that he transfer to a less strenuous position.
In 1991, Davis bid for and obtained a "Street Light
Maintenance" position at FPL. After a short time in this
position, Davis bid for and obtained another "lineman"
position. 2 When that job again aggravated Davis's back
condition, FPL placed Davis on "light duty." A disagreement arose between Davis and FPL leading to a
suspension for a year.
2 Davis made this bid due to what Davis alleges
were intolerable working conditions. According
to Davis, his various supervisors subjected him to
constant harassment and intimidation because of
his disability. Because Davis does not challenge
the district court's finding that pre-March 1996
conduct was time-barred, we omit the facts surrounding those allegations.
[**5] In late 1993, Davis returned to "light-duty"
work and in early 1994 bid for a Connect and Disconnect
("C&D") position. The C&D position involves connecting and disconnecting electric service to FPL's customers
by installing, removing, and reading electric meters. The
C&D position carries out FPL's connect and reconnect
policy, which requires that customer orders be processed
and executed the same day or within twenty-four hours.
Davis met the requirements listed on FPL's form entitled
"Essential Job Functions--Connect & Disconnect Man." 3
The form and FPL's written job description for the C&D
position do not address working hours or overtime work,
but the collective bargaining agreement does. That
agreement lists the work schedule of a C&D employee as
"five (5) days of eight (8) consecutive hours per day,"
and expressly grants FPL "the right to require employees
to work overtime." In 1996, the 84 C&D employees
worked 18,175 hours of overtime, averaging 216 overtime hours each. C&D employees work the third highest
average number of overtime hours of some forty different FPL jobs, although [*1304] almost all jobs require
some overtime. The relatively high C&D overtime figure
was in part due [**6] to FPL's aggressive same-day
connect and reconnect policy. The volume and time constraints of C&D work occasionally necessitated simultaneous overtime for all C&D employees.
3 The form listed nine different job requirements, including frequent walks on varied surfaces while wearing a 10-pound tool belt, performing duties in direct sunlight and after dark,
App. Def. 72
Page 4
205 F.3d 1301, *; 2000 U.S. App. LEXIS 3665, **;
and possessing sufficient stamina to work in inclement weather.
only Davis's disability discrimination claims under the
ADA.
In 1996, Davis's doctor suggested that he work no
more than eight hours a day because of his back condition. Shortly thereafter Davis was suspended. According
to Davis, he was suspended because he could not work
overtime. FPL contends that Davis was placed on
worker's compensation leave because his medication
caused drowsiness, interfering with his ability to drive
his FPL truck, and because there were no "light-duty"
positions available.
Over the next eight months a series of meetings, letters, and negotiations followed. Davis insisted that FPL
accommodate his disability by guaranteeing him [**7]
no overtime or allowing him to decide each day whether
to work overtime depending on his personal assessment
of his back condition at shift end. FPL refused this request, but offered Davis two options. First, Davis could
return to work in a full-duty C&D position with a guarantee of no overtime for sixty days. The IBEW agreed to
this sixty-day concession. Second, FPL offered to allow
Davis to transfer to another IBEW position or transfer to
a non-IBEW position. Pursuant to the collective bargaining agreement, FPL provided Davis with a list of jobs
and a seniority roster for him to determine what jobs
were open to someone with his seniority. After Davis's
contractual right to transfer expired, FPL extended the
time period for Davis to request a transfer and provided
him with information regarding average amounts of
overtime per position.
Davis rejected FPL's offers, and FPL refused Davis's
requested accommodations. Davis refused to return to
C&D work without one of his accommodations and was
terminated in March 1997.
II. PROCEDURAL HISTORY
Davis then filed this lawsuit alleging (a) disability
discrimination, in violation of the ADA and the Florida
Civil Rights Act of 1992, and (b) [**8] discriminatory
retaliation, in violation of the ADA, Florida's Workers
Compensation Law, and Florida's Whistle Blower Act. In
an order dated January 7, 1999, the district court granted
summary judgment to FPL on all federal and state
claims. Davis subsequently filed a motion for relief from
judgment under Rule 60(b), addressing only his requested accommodations under the ADA. Fed.R.Civ.P.
60(b). In an order dated March 24, 1999, the district
court denied this motion. Davis timely appealed both
orders. 4 On appeal, however, Davis addresses only his
ADA claims and not his state law claims. Furthermore,
the issues Davis raises on appeal about his retaliation
claims under the ADA lack merit. 5 Thus, we address
4 Davis's appeal of the denial of his Rule 60(b)
Motion in Appeal No. 99-10524 was consolidated
with Davis's appeal from the grant of summary
judgment in Appeal No. 99-4076. [HN1] We review the district court's grant of summary judgment de novo, applying the same legal standards
as the district court. See Hilburn v. Murata Elecs.
N. Am., Inc., 181 F.3d 1220, 1225 (11th
Cir.1999). Summary judgment is appropriate
where there is no genuine issue of material fact.
Fed.R.Civ.P. 56(c). [HN2] We review the denial
of Davis's Rule 60(b) Motion for abuse of discretion. See Cavaliere v. Allstate Ins. Co., 996 F.2d
1111, 1115 (11th Cir.1993).
[**9]
5 Davis primarily alleges that the district court
erred in finding that Davis failed to establish a
prima facie case of retaliation under the ADA.
Because we find no merit to this contention, we
affirm without further discussion. See 11th Cir.
R. 36-1.
III. DISCUSSION
[HN3] The ADA provides that no covered employer
shall discriminate against "a qualified individual with a
disability because of the disability of such individual" in
any of the "terms, conditions, [or] privileges of employment." 42 U.S.C. § 12112(a) (1994). [*1305] "Indeed,
the ADA imposes upon employers the duty to provide
reasonable accommodations for known disabilities unless
doing so would result in undue hardship to the employer." Morisky v. Broward County, 80 F.3d 445, 447
(11th Cir.1996) (citing 42 U.S.C. 12112(b)(5)(A)). The
ADA places the burden on the employee to establish a
prima facie case of disability discrimination. See Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th
Cir.1997). To establish a prima facie case of disability
discrimination, [**10] Davis must prove that (1) he has
a disability; (2) he is a qualified individual; and (3) he
was subjected to unlawful discrimination because of his
disability. See Morisky, 80 F.3d at 447. As outlined below, we find that the district court correctly held that
Davis failed to show that he was a qualified individual
with a disability. 6
6 FPL argues that Davis fails to establish a "disability" because his back condition does not substantially limit his major life activities. Since we
find that Davis is not a qualified individual, we
do not reach whether Davis has a disability
within the meaning of the ADA.
App. Def. 73
Page 5
205 F.3d 1301, *; 2000 U.S. App. LEXIS 3665, **;
A. Qualified Individual
[HN4] A "qualified individual with a disability" is
an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual
holds or desires." 42 U.S.C. § 12111(8). Davis must
show either that he can perform the essential functions of
his job without [**11] accommodation, or, failing that,
show that he can perform the essential functions of his
job with a reasonable accommodation. See Holbrook,
112 F.3d at 1526. Thus, if Davis is unable to perform an
essential function of his C&D job, even with an accommodation, he is, by definition, not a "qualified individual" and, therefore, not covered under the ADA. See
Cramer v. Florida, 117 F.3d 1258, 1264 (11th Cir.1997).
In other words, the ADA does not require FPL to eliminate an essential function of Davis's job. Therefore, the
first issue is whether mandatory overtime work is an
essential function of the C&D position.
[HN5] Whether a function is essential is evaluated
on a case-by-case basis by examining a number of factors. The ADA provides that consideration shall be given
to the employer's judgment as to what functions of a job
are essential and the employer's written description for
that job. See 42 U.S.C. § 12111(8). The ADA regulations
provide that other factors to consider are: (1) the amount
of time spent on the job performing the function, (2) the
consequences of not requiring the incumbent to perform
the function, (3) the [**12] terms of the collective bargaining agreement, (4) the work experience of past incumbents in the job, and (5) the current work experience
of incumbents in similar jobs. See 29 C.F.R. §
1630.2(n)(3) (1999).
After considering these factors, the district court correctly held that mandatory overtime work is an essential
function of Davis's C&D position. First, FPL deems
mandatory overtime to be an essential function of that
position due to the unique nature of the electric industry
and FPL's same-day reconnect policy. Second, FPL's
application indicated that working overtime was "a condition of employment." Davis also admitted that overtime was represented to him as a condition of employment. Third, FPL's aggressive connect and reconnect
policy creates fluctuating production requirements and
heightens FPL's reliance on its ability to require overtime
from C&D employees. Fourth, FPL's evidence demonstrated that each C&D position undisputedly required a
substantial amount of overtime work. For example, each
C&D employee worked an average of 216 overtime
hours in 1996. Fifth and significantly, FPL's bargainedfor-agreement with the IBEW grants FPL the right to
require involuntary overtime [**13] and outlines the
specific methods by which it may do so. All of these
factors demonstrate that mandatory overtime is an essential function of the C&D position.
[*1306] We recognize that FPL's job description
and form for the C&D position do not address working
hours or overtime. But we disagree with Davis's argument that this means that his working hours and overtime
cannot be deemed essential functions as a matter of law.
Davis's argument ignores the undisputed facts that the
collective bargaining agreement expressly sets forth both
the working hours and the overtime requirement and that
nothing in FPL's job description and form addresses
those matters, much less contradicts the collective bargaining agreement. Moreover, the job application also
makes clear that overtime is a condition of employment
in a C&D position.
We also reject the EEOC's argument that "working
overtime" can never be an "essential function" of a job. 7
The EEOC narrowly equates "function" with task and
argues that overtime is not a task to be performed. However, in FPL's electric utility business, mandatory overtime work is the means by which FPL implements its
same-day connect and reconnect policy. FPL's connect
[**14] and reconnect policy generates for a C&D employee certain meters that must be installed or reconnected that day. While certain equipment may be used to
install and reconnect the electric service, overtime is the
tool that gets that work done the same day and is thus an
integral part of the C&D position. In effect, overtime
work in a C&D position at this electric utility company is
akin to job presence, which has been held to be an essential function of a job. See Jovanovic v. In-Sink-Erator
Div. of Emerson Elec. Co., 201 F.3d 894, 900 (7th
Cir.2000) ("Our review of the entire record in this case
supports the district court's finding that regular attendance is an essential function of the tool and die maker
position...."); Tyndall v. National Educ. Ctrs. Inc., 31
F.3d 209, 213 (4th Cir.1994) ("An employee who cannot
meet the attendance requirements of [a university
teacher] cannot be considered a 'qualified' individual
protected by the ADA."); Jackson v. Veterans Admin., 22
F.3d 277 (11th Cir.) (holding under Rehabilitation Act
that a housekeeping aid had failed to prove that he was
"an otherwise qualified individual because he had [**15]
failed to satisfy the presence requirement of his job"),
cert. dismissed 513 U.S. 1052, 115 S. Ct. 657, 130 L. Ed.
2d 560 (1994); see also Hilburn v. Murata Elecs. N. Am.,
Inc., 181 F.3d 1220, 1231 (11th Cir.1999) (citing with
approval Tyndall 's discussion of job presence as an essential function under the ADA and concluding plaintiff
could not prove associational discrimination because she
was not a qualified individual). 8
App. Def. 74
Page 6
205 F.3d 1301, *; 2000 U.S. App. LEXIS 3665, **;
7 The Equal Employment Opportunity Commission ("EEOC") filed an amicus brief on Davis's
behalf.
8 In an analogous situation, the First Circuit
dismissed the plaintiff's ADA claim on other
grounds, but nonetheless addressed the "essential
function" notion within the context of the plaintiff's claim under the Family Medical Leave Act.
See Tardie v. Rehabilitation Hosp., 168 F.3d 538
(1st Cir.1999). The First Circuit wrote that "at
bottom, [plaintiff] offers no evidence that she or
anyone else could perform the job in only forty
hours per week," and thus "the district court did
not err in finding that working more than 40
hours per week was an essential function of the
position." Id. at 544. The court also noted: "At
oral argument, [plaintiff's] counsel argued that the
time spent at a job is not a 'function' of the job; it
is a capability. [Plaintiff] claims that only specific
duties can be 'functions' of a position.... [Plaintiff]
cites no authority for this distinction, and we believe it to be mere semantics." Id. at 543-44.
law and that Congress to date has shown no intent to
alter this status by the duties created under the ADA." Id.
at 1052. 10
9 For example, in Willis v. Pacific Maritime
Ass'n, the Ninth Circuit held that "an employee's
proposed accommodation under the ADA is unreasonable if it conflicts with a bona fide seniority system established under a [collective bargaining agreement]." Willis, 162 F.3d at 566; see
also Feliciano, 160 F.3d at 787 ("The failure to
automatically reassign [the employee] to that position--in violation of the rights of the person who
received the position under the selection process
outlined in the collective bargaining agreement
and departmental policies does not violate the
ADA."); Foreman, 117 F.3d at 810 ("The ADA
does not require an employer to take action inconsistent with the contractual rights of other
workers under a collective bargaining agreement."); Benson, 62 F.3d at 1114 ("The ADA
does not require that [the employer] take action
inconsistent with the contractual rights of other
workers under a collective bargaining agreement."). A panel of the D.C. Circuit reached a
contrary holding in Aka v. Washington Hosp.
Ctr., 325 U.S. App. D.C. 255, 116 F.3d 876
(D.C.Cir.1997), but that opinion was vacated
when the case was taken en banc. The en banc
court's opinion did not reach a holding on this issue, but its analysis is consistent with the rule that
we adopt in this case. Aka v. Washington Hosp.
Ctr., 332 U.S. App. D.C. 256, 156 F.3d 1284,
1301-03 & n. 25 (D.C.Cir.1998) (en banc).
[**16] For all of these reasons, we conclude that
the district court correctly held that mandatory overtime
was an essential function of Davis's C&D position.
B. Unreasonable Accommodation
We also conclude that the district court correctly
found that Davis's requested accommodations were unreasonable as a matter of law. The ADA does not require
accommodations, such as those Davis requested, that
contravene the seniority rights of other employees under
a collective bargaining agreement. In so concluding,
[*1307] we join eight other circuits which have held that
[HN6] an accommodation that contravenes the seniority
rights of other employees under a collective bargaining
agreement is unreasonable as a matter of law. See Willis
v. Pacific Maritime Ass'n, 162 F.3d 561, 566-68 (9th
Cir.1998); Feliciano v. Rhode Island, 160 F.3d 780, 78687 (1st Cir.1998); Aldrich v. Boeing Co., 146 F.3d 1265,
1271 n. 5 (10th Cir.1998); Cassidy v. Detroit Edison Co.,
138 F.3d 629, 634 (6th Cir.1998); Kralik v. Durbin, 130
F.3d 76, 83 (3d Cir.1997); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir.1997); [**17] Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th
Cir.1996), cert. denied, 520 U.S. 1146, 117 S. Ct. 1318,
137 L. Ed. 2d 480 (1997); Benson v. Northwest Airlines,
Inc., 62 F.3d 1108, 1114 (8th Cir.1995). 9 As the Seventh
Circuit held in Eckles, "the [HN7] ADA does not require
disabled individuals to be accommodated by sacrificing
the collectively bargained, bona fide seniority rights of
other employees." Eckles, 94 F.3d at 1051. We agree
with the Seventh Circuit that "collectively bargained
seniority rights have a pre-existing special status in the
[**18]
10 In his Rule 60(b) Motion, Davis emphasized
the EEOC's "Policy Guidance on Reasonable Accommodation Under the ADA" ("Policy Guidance"), which was issued after the district court
granted summary judgment. That Policy Guidance poses this question: "Can an employer claim
that a reasonable accommodation imposes an undue hardship simply because it violates a Collective Bargaining Agreement (CBA)?" 12 Empl.
Discrim. Rep. (BNA) 317 (Mar. 3, 1999). The
Policy Guidance answers the question "no" and
recommends analysis on a case-by-case basis, but
notes that circuit courts have rejected this interpretation of the ADA. Joining these circuits, we
find that this Policy Guidance is inconsistent with
the ADA statute as construed by the courts before
the EEOC issued its Policy Guidance.
Accordingly, FPL is not required to grant either of
Davis's requested accommodations because they conflict
with the seniority rights of other C&D employees under
App. Def. 75
Page 7
205 F.3d 1301, *; 2000 U.S. App. LEXIS 3665, **;
their union's collective bargaining agreement. That
agreement expressly distributes mandatory overtime by
seniority, so that those with the least seniority are [**19]
compelled to work overtime first. If Davis were given
the accommodation of no overtime or selective overtime
depending on Davis's personal assessment of his back
condition at the end of each shift, then more senior employees, who otherwise would not have to work overtime, would be required to do so, and that is not required
by the ADA. See Kralik, 130 F.3d at 80-83 (finding accommodation of no forced overtime violates collective
bargaining agreement and therefore is not required by the
ADA); Eckles, 94 F.3d at 1045, 1051-52 (holding accommodation of being protected from being "bumped"
from position conflicts with the collectively bargained
rights of others who otherwise would have seniority to
bump employee, so that accommodation is not required
by the ADA). Therefore, [*1308] the district court
properly held that Davis's requested overtime accommodations were unreasonable as a matter of law because
each conflicted with the applicable collective bargaining
agreement.
IV. CONCLUSION
In conclusion, we affirm the district court's grant of
summary judgment in favor of FPL on all of Davis's
claims and affirm the district court's denial of Davis's
Rule 60(b) motion [**20] for relief from that judgment.
AFFIRMED.
App. Def. 76
Page 1
LEXSEE 143 F.3D 227
Caution
As of: Aug 24, 2010
MONICA M. GARCIA, Plaintiff-Appellant, v. WOMAN'S HOSPITAL OF TEXAS,
Defendant-Appellee
NO. 97-20242
June 22, 1998, Decided
PRIOR HISTORY:
States District Court For the Southern District of Texas.
H-94-CV-1817. Kenneth M Hoyt, US District Judge.
additional testimony without a jury. The court further
held that the district court correctly entered judgment for
appellee because there was a lack of evidence of unequal
application of facially neutral policies and that the policies could have resulted in a disproportionately negative
effect on pregnant women.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant former employee made her second appeal of the judgment by the
United States District Court for the Southern District of
Texas, as a matter of law, Fed. R. Civ. P. 50(a), entered
in favor of appellee hospital in her discrimination suit.
OVERVIEW: Appellant former employee brought suit
against appellee hospital alleging discrimination in violation of 42 U.S.C.S. § 2000e(k). The district court, after a
trial and after accepting further evidence directed by the
court upon the first appeal, awarded judgment as a matter
of law to appellee. Appellant challenged the verdict, contending the district judge should have recused himself,
that the district court erred in taking further testimony
without a jury, and that it also erred in granting appellee's
Fed. R. Civ. P. 50 motion. The court affirmed, holding
that the district judge did not abuse his discretion by refusing to recuse himself where there was no showing of
bias or prejudice against appellant. The court held that
the district court did not abuse its discretion in taking
OUTCOME: The court affirmed the district court's
judgment, as a matter of law, holding that appellant former employee lacked sufficient evidence of discrimination and disparate impact.
Abuse of Discretion
[HN1] A district judge's decision not to recuse herself or
himself is reviewed for abuse of discretion.
Abuse of Discretion
[HN2] The procedural question of how to handle the
taking of additional testimony on remand is committed to
the sound discretion of the district court, and like all matters of docket management and trial procedure, it is reviewed for an abuse of that discretion.
App. Def. 77
Page 2
143 F.3d 227, *; 1998 U.S. App. LEXIS 13207, **;
> General Overview
Novo Review
[HN3] The district court decision to grant a party's motion for judgment as a matter of law is again reviewed de
novo.
Civil Procedure > Judicial Officers > Judges > Disqualifications & Recusals > Federal Judges
Civil Procedure > Judicial Officers > Judges > Disqualifications & Recusals > Grounds > Personal Bias
Governments > Courts > Judges
[HN4] 28 U.S.C.S. § 455(a) requires that a judge shall
recuse himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C.S. §
455(b)(1) provides that the judge shall also disqualify
himself where he has a personal bias or prejudice concerning a party. Disqualification under this section is
committed to the sound discretion of the district court.
[HN5] Intentional disparate treatment may be achieved
via a policy which on its face classifies pregnant employees differently from other non-pregnant employees.
A facially neutral policy may also be used to intentionally discriminate against employees if selectively applied
to them.
COUNSEL: For MONICA M GARCIA, Plaintiff - Appellant: Jerry L Spence, Houston, TX. Michael W Kerensky, Houston, TX.
For WOMAN'S HOSPITAL OF TEXAS, Defendant Appellee: Nancy Lynne Patterson, Littler Mendelson,
Houston, TX. Mark E Edwards, Houston, Tx.
JUDGES: Before KING, BARKSDALE and PARKER,
Circuit Judges.
OPINION
[*228] PER CURIAM:
I.
FACTS & PROCEDURAL HISTORY
The district court entered judgment as a matter of
law under Fed. R. Civ. P. 50 (a) against appellant for the
second time and she again appeals that decision. This
Court's first opinion in this case sets out the relevant fac-
tual basis for Garcia's claims in sufficient detail, and we
need not cover that ground again here. See Garcia v.
Woman's Hosp. of Texas, 97 F.3d 810, 811-12 (5th Cir.
1996). In short, Garcia became pregnant while working
as an LVN in the Family Care Center Unit (maternity
ward) at Woman's Hospital of Texas ("the hospital") and,
due to pregnancy related health problems, was forced to
convalesce at home for just over a [*229] month from
January 28 to March 1, 1993. Thereafter her obstetrician,
Dr. Debra Gunn, who also worked at the hospital, released her to return to work, believing that Garcia was fit
to perform the duties of an LVN in the maternity ward at
the hospital, as Dr. Gunn understood those duties. The
hospital administration, consistent with [**2] hospital
policy, required Dr. Gunn to certify on a prepared form
that Garcia could perform a variety of ostensibly required tasks. Dr. Gunn certified that Garcia could perform all of the listed tasks with the exception of pushing,
pulling or supporting 150 pounds. Consistent with hospital policy, Garcia was not allowed to return to work with
the above limitation, and after she was on leave for more
than six months the hospital terminated her, again consistent with hospital policy.
Garcia sued the hospital for violation of Title VII of
the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978. 42 U.S.C. §
2000e(k). The district court denied the hospital's motion
for summary judgment and the case went to trial. At the
close of plaintiff's case, the district court granted the
hospital's Rule 50 motion on the grounds that the hospital's policies were applied to all employees equally,
whether pregnant or not, and therefore, Garcia could not
make out a case of disparate treatment. Before the district court granted the Rule 50 motion, Garcia sought
permission to reopen her case to call Dr. Gunn to testify
that no pregnant woman could push, pull or support 150
[**3] pounds, thereby demonstrating that the policy had
a disparate impact on pregnant women. The motion to
reopen was denied and the Rule 50 motion was granted.
Garcia appealed and this Court reversed and remanded. This Court ordered the district court to allow
Dr. Gunn to testify and to reconsider the Rule 50 motion
in light of that testimony. On remand, Garcia asked the
district judge to recuse himself, which he declined to do.
Thereafter, Garcia called Dr. Gunn, and her testimony
was taken by the Court, without a jury. The district court
then reviewed all the evidence in the case, including Dr.
Gunn's testimony, and again granted the hospital's Rule
50 motion, whereupon Garcia filed the instant appeal.
Garcia's appeal essentially raises the following issues:
1. Whether the district judge should have recused
himself;
App. Def. 78
Page 3
143 F.3d 227, *; 1998 U.S. App. LEXIS 13207, **;
2. Whether the district court erred by taking Dr.
Gunn's testimony without a jury, rather than retrying the entire case to a jury, and then reconsidering
any Rule 50 motion urged by the hospital at the close
of Garcia's case;
3. Whether the district court erred by granting
the hospital's Rule 50 motion for judgment as a matter of law for the second time.
II.
LAW [**4] & ANALYSIS
merits of the plaintiff's case, otherwise he could not have
decided the motion for judgment as a matter of law, as
the decision of that motion required the district judge to
formulate an opinion about the sufficiency of the plaintiff's case under the applicable law. The district judge's
comments did not indicate that he would ignore the probative value, if any, of Dr. Gunn's testimony when reevaluating the hospital's Rule 50 motion. [**6] Ultimately, nothing about the district court's ruling evinced
any personal bias, prejudice or impartiality, therefore, we
find no abuse of discretion in the district judge's refusal
to disqualify himself in this case.
A.
STANDARDS OF REVIEW
[HN1] The district judge's decision not to recuse
himself is reviewed for abuse of discretion. In re Chevron U.S.A., Inc., 121 F.3d 163, 165 (5th Cir. 1997), citing In re City of Houston, 745 F.2d 925 (5th Cir. 1984).
[HN2] The procedural question of how to handle the
taking of Dr. Gunn's testimony on remand is committed
to the sound discretion of the district court, and like all
matters of docket management and trial procedure, it is
reviewed for an abuse of that discretion. Sims v. ANR
Freight System, Inc., 77 F.3d 846, 849 (5th Cir. 1996).
Finally, [HN3] the district court decision to grant the
hospital's motion for judgment as a matter of law is again
reviewed de novo. Garcia I, 97 F.3d at 812, citing Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th
Cir. 1993).
B.
Recusal
Title 28 U.S.C. § 455 governs recusal of federal district judges. "[HN4] Section 455(a) requires that a judge
'shall recuse himself in any proceeding in which his impartiality might reasonably be questioned.' Section
455(b)(1) provides that the judge 'shall also disqualify
himself ... where he has a personal bias or prejudice
concerning [**5] a party....'" [*230] In re Chevron, 121
F.3d at 165 n. 3 (emphasis added). The tenor of § 455's
language is mandatory, but this Court has recognized that
disqualification under this section "is committed to the
sound discretion of the district court." Id.
The district judge did not abuse his discretion by refusing to recuse himself. His comments on remand regarding the plaintiff's case reflected no personal animus
against Garcia or in favor of the hospital. His comments
regarding Garcia's ability to prove her case were perhaps
unflattering, but reflected only the district judge's considered opinion upon having viewed the evidence and
law in this case. It was no violation of judicial impartiality for the district judge to form an opinion regarding the
C.
Dr. Gunn's Proffer
There was considerable confusion below concerning
whether this Court's previous opinion required the district court to give Garcia a new trial, wherein she would
have the opportunity to call Dr. Gunn to testify, followed
by an appropriate ruling on any Rule 50 motion reurged
by the hospital. This Court's opinion carefully identifies
the sort of testimony Dr. Gunn might have given, which
would have affected the propriety of the hospital's Rule
50 motion. Garcia I, 97 F.3d at 814. The district court
determined that it would be more efficient to take Dr.
Gunn's testimony by proffer before selecting a jury, and
determine based thereon whether to allow Garcia a new
trial. We are unwilling to say that such approach was an
abuse of discretion. It would have been a waste of resources for the district court to grant a new trial, if Dr.
Gunn's testimony was not helpful to Garcia's case. If Dr.
Gunn's testimony failed to establish disparate [**7]
treatment (i.e., discriminatory application of the hospital's policies to pregnant women), then the jury would
have to be dismissed, because the disparate impact claim
standing alone cannot be tried to a jury. 1 Furthermore, if
Dr. Gunn's testimony failed to establish that the hospital's policies had a disparate impact on pregnant women,
then judgment as a matter of law would be appropriate.
Therefore, one can easily see the wisdom in taking Dr.
Gunn's testimony and assessing its probative value prior
to incurring the expense of a new trial, and we find no
abuse of discretion by the district court in doing so.
1 Prior to the Civil Rights Act of 1991, Title VII
claims could not be tried to a jury, and compensatory and punitive damages could not be awarded.
The Civil Rights Act of 1991 amended Title VII
to allow compensatory and punitive damages in
cases of intentional discrimination (i.e., not in
cases involving disparate impact only), and jury
trials were permitted only in cases where compensatory and punitive damages were proper, in
App. Def. 79
Page 4
143 F.3d 227, *; 1998 U.S. App. LEXIS 13207, **;
other words, in disparate treatment cases. See
Rev.Stat. §§ 1977A(a) & (c), 42 U.S.C. §§
1981a(a) & (c), as added by § 102 of the 1991
Act. Therefore, a jury may not determine the disparate impact claim, and, if that is the only claim
left, there is no need for a jury.
[**8] D.
Merits of Rule 50 Motion
The district court was correct on the law and facts in this
case that, as a matter of law, Garcia's evidence was insufficient to make out a prima facie disparate impact or disparate treatment claim under the Civil Rights Act of
1964, as amended by the Pregnancy Discrimination Act
of 1978. 2 To make out a prima facie violation of the
Civil Rights [*231] Act of 1964, as amended by the
Pregnancy Discrimination Act of 1978, Garcia had to
show: 1) that the hospital's policies or their application
intentionally treated her differently than non-pregnant
employees because of her pregnancy (i.e., disparate
treatment); or 2) that the hospital's policies had a disproportionately negative impact on pregnant employees like
herself as compared to non-pregnant employees (i.e.,
disparate impact). Garcia I, 97 F.3d at 813, citing
Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849,
28 L. Ed. 2d 158 (1971).
2 There was a debate in the district court on remand as to whether the district court was to reconsider both Garcia's disparate impact and disparate treatment claims in light of Dr. Gunn's testimony or just the disparate impact claim. Our
resolution of the merits of the district court's decision renders the question moot.
[**9] i.
Disparate Treatment
[HN5] Intentional disparate treatment may be achieved
via a policy which on its face classifies pregnant employees differently from other non-pregnant employees.
See, e.g., International Union, UAW v. Johnson Controls, 499 U.S. 187, 197-98, 111 S. Ct. 1196, 1202-1203,
113 L. Ed. 2d 158 (1991). On the other hand, a facially
neutral policy may also be used to intentionally discriminate against employees because of their pregnancy if
selectively applied to them. 3 Garcia failed to make out a
prima facie case for facial or pretextual disparate treatment, because she could not show that she was treated
differently than anyone else. The policies on their face
do not classify pregnant employees differently from all
other employees. Furthermore, the testimony proved that
the policies, were applied equally to all employees. Dr.
Gunn's testimony in fact reinforced the testimony of Ms.
Judith Ann Squyres, R.N., the hospital's Employee
Health Risk Management Coordinator in the relevant
time period. Ms. Squyres testified that no employees on
sick leave were allowed to return to work, unless their
doctor certified on a prepared form that they could
[**10] perform various listed tasks, which ostensibly
were requirements of their jobs. The state of this evidence will not support a finding that Garcia was intentionally treated differently from other non-pregnant employees, and judgment as a matter of law was appropriate
on her disparate treatment claim.
3 This is what the Court referred to as pretextual
disparate treatment in Garcia I, supra at 813 n. 2.
ii.
Disparate Impact
The principal reason for remand in this case was so that
Dr. Gunn's testimony might be taken and so that the district court might reevaluate the propriety of judgment as
a matter of law in light of her testimony. Garcia I, 97
F.3d at 814. We pointed out that, if Dr. Gunn testified
that no pregnant woman could meet the requirement of
pushing, pulling or supporting 150 pounds, then Garcia
could make out a prima facie case of disparate impact.
This is true because the 150-pound-restriction could be
expected to keep all pregnant women who take sick leave
like Garcia [**11] from being able to return to work
when their illness abates.
Dr. Gunn did not testify that no pregnant women
could lift 150 pounds. Rather, she testified that she could
not accept the potential legal liability associated with
saying that any woman could lift 150 pounds, whether
pregnant or not. That is not an expert opinion about the
likely effect of the 150-pound-restriction on all pregnant
women. The substance of Dr. Gunn's testimony is legally
insufficient to establish a prima facie case of disparate
impact; therefore, judgment as a matter of law was appropriate.
III.
CONCLUSION
The district judge did not abuse his discretion by refusing to recuse himself as there was no personal bias or
prejudice against the plaintiff and none of his comments
reflect any impartiality, i.e., inability to decide the merits
of the case based on the controlling law as applied to the
evidence. The district court did not abuse its discretion
by taking Dr. Gunn's testimony by proffer without a jury,
App. Def. 80
Page 5
143 F.3d 227, *; 1998 U.S. App. LEXIS 13207, **;
as that was the only sensible course under the circumstances. Finally, the district court correctly entered
judgment as a [*232] matter of law on Garcia's disparate treatment claim for lack [**12] of evidence of unequal application of the facially neutral policies, and the
district court correctly entered judgment as a matter of
law on Garcia's disparate impact claim for lack of evidence that the policies could result in a disproportionately negative effect on pregnant women. Therefore, we
affirm.
App. Def. 81
Page 1
LEXSEE 209 F.SUPP. 2D 970
Caution
As of: Jul 19, 2010
LEELYNN J. GORMAN, Plaintiff, vs. WELLS MANUFACTURING CORPORATION, Defendant.
Civil No. 4:00-cv-40233
IOWA, CENTRAL DIVISION
209 F. Supp. 2d 970; 2002 U.S. Dist. LEXIS 13043; 14 Am. Disabilities Cas. (BNA) 85
July 15, 2002, Decided
July 15, 2002, Filed
SUBSEQUENT HISTORY: Affirmed by Gorman v.
Wells Mfg. Corp., 2003 U.S. App. LEXIS 16709 (8th Cir.
Iowa, Aug. 15, 2003)
DISPOSITION: [**1] Defendant's Motion for Summary Judgment granted. Defendant's Motion to Strike
denied.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff, an employee
terminated following "pregnancy related illnesses," alleged disability discrimination under both the Americans
with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et
seq., and the Iowa Civil Rights Act (ICRA), Iowa Code §
216.6. and sex discrimination under both the ICRA and
2000e et seq. Defendant, her former employer, moved
for summary judgment on all of claims.
OVERVIEW: The employee was employed by the defendant in 1993 during her first pregnancy and did not
allege any discrimination by it in connection with her
first pregnancy and leave in 1993 and 1994. However,
her claims related to her second pregnancy, of which she
informed her former employer in March or April of
1998. She asserted claims of disability discrimination
under both the ADA and the ICRA, predicating these
claims on the asserted disability of pregnancy or pregnancy with complications. Nonetheless the court found
she could not establish that she was disabled within the
meaning of the ADA because her symptomatic period
was too finite, and her symptoms too commonly associated with normal pregnancy, to bring her within the protection of the ADA. Further, due to her excessive absenteeism, the employee was not qualified to perform the
essential functions of her job and had failed to establish
the "qualified" prong of her prima facie case under Title
VII. In addition, the employee failed to meet her burden
to produce any evidence that similarly situated nonprotected class employees were treated more favorably
than she, thus failing to raise an inference of discrimination.
OUTCOME: Defendant's motion for summary judgment was granted and defendant's motion to strike was
denied as moot.
Civil Procedure > Summary Judgment > Opposition >
General Overview
App. Def. 82
Page 2
209 F. Supp. 2d 970, *; 2002 U.S. Dist. LEXIS 13043, **;
Genuine Disputes
Materiality
[HN1] A moving party is entitled to summary judgment
if the pleadings, depositions, answers to interrogatories,
any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c). Although courts
view the facts in the light most favorable to the nonmoving party, in order to defeat a motion for summary
judgment, the non-moving party cannot simply create a
fact dispute; rather, there must be a genuine dispute over
those facts that could affect the outcome of the lawsuit.
A dispute is not "genuine" unless the evidence is such
that a reasonable trier of fact could return a verdict for
the nonmoving party.
Appropriateness
Labor & Employment Law > Discrimination > Actionable Discrimination
[HN2] Because discrimination cases often depend on
inferences rather than on direct evidence, the United
States Court of Appeals for the Eighth Circuit has cautioned that summary judgment should seldom be used in
employment discrimination cases. Although summary
judgment is to be used sparingly in employment discrimination cases, it is appropriate where one party has
failed to present evidence sufficient to create a jury question as to an essential element of its claim.
Proof > Initial Burden of Persuasion
General Overview
[HN3] With respect to both the sex and disability discrimination claims, the plaintiff has the initial burden to
establish a prima facie case of discrimination.
Overview
[HN4] To establish a prima facie case of disability discrimination under the Americans with Disabilities Act
(ADA), 42 U.S.C.S. § 12101 et seq., a plaintiff must establish: (1) that she is disabled under the ADA; (2) that
she is qualified to perform the essential functions of her
job with or without reasonable accommodation; and (3)
that she has suffered an adverse employment action under circumstances giving rise to an inference of unlawful
discrimination.
Overview
[HN5] Pursuant to disability discrimination claim under
the Americans with Disabilities Act, 42 U.S.C.S. § 12101
et seq., if a plaintiff is able to establish a prima facie case
of discrimination, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for taking the employment action. If the defendant is able to
meet this burden of production, the plaintiff must be afforded an opportunity to show that defendant's proffered
reason was a mere pretext.
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Disabilities > Impairments > Mental & Physical Impairments
[HN6] Under the Americans with Disabilities Act, "disability" means a physical or mental impairment that substantially limits one or more major life activity of such
individual. 42 U.S.C.S. § 12102(2)(A). "Physical impairment" means any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting
one or more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive,
digestive, genito-urinary, hemic and lymphatic, skin, and
endocrine. 29 C.F.R. § 1630.2(h)(1). The Equal Employment Opportunity Commission Technical Assistance
App. Def. 83
Page 3
Manual advises that other conditions, such as pregnancy,
that are not the result of a physiological disorder are also
not impairments. 29 C.F.R. § 1630.2(h). Moreover, temporary, non-chronic impairments of short duration, with
little or no long term or permanent impact, are usually
not disabilities. 29 C.F.R. app. § 1630.2(j).
Overview
[HN7] Pregnancy per se is not a disability under the
Americans with Disabilities Act, 42 U.S.C.S. § 12101 et
seq.
Overview
[HN8] Pregnancy-related complications can constitute a
disability under the Americans with Disabilities Act, 42
U.S.C.S. § 12101 et seq.
Overview
[HN9] Absent unusual circumstances, pregnancy-related
medical conditions do not constitute a disability under
et seq.
[HN10] A plaintiff under the Americans with Disabilities
Act, 42 U.S.C.S. § 12101 et seq., is required to show that
she was "qualified" in the sense that she was doing her
job well enough to rule out the possibility that she was
fired for inadequate job performance, absolute or relative. The focus of this inquiry is not a determination of
whether the plaintiff was in fact performing her job adequately, but rather whether there is sufficient evidence of
unsatisfactory performance to be a legitimate concern to
her employer.
Overview
Labor & Employment Law > Discrimination > Disability Discrimination > Proof > General Overview
[HN11] Pursuant to disability discrimination claims under the Americans with Disabilities Act, 42 U.S.C.S. §
12101 et seq., an inference of discrimination may be
raised by evidence that a plaintiff was replaced by or
treated less favorably than similarly situated employees
who are not in the plaintiff's protected class.
Appropriateness
Labor & Employment Law > Collective Bargaining &
Labor Relations > Discipline, Layoff & Termination
[HN12] Summary judgment is proper if the employee
fails to establish any element of her prima facie Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq.,
claim.
Overview
[HN13] Pursuant to claims under the Americans with
Disabilities Act, 42 U.S.C.S. § 12101 et seq., excessive
absenteeism is a valid reason for which to terminate a
pregnant employee as long as excessive absenteeism of
non-pregnant employees is not overlooked.
General Overview
[HN14] Title VII of the Civil Rights Act of 1964 makes
it an unlawful employment practice for an employer to
fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of an individual's race,
color, religion, sex, or national origin. 42 U.S.C.S. §
2000e-2(a). In 1978, Congress enacted the Pregnancy
Discrimination Act to clarify that the terms "because of
sex" and "on the basis of sex" included because of and on
the basis of pregnancy, childbirth, or related medical
conditions, and that women affected by pregnancy,
childbirth, or related medical conditions shall be treated
App. Def. 84
Page 4
the same for all employment-related purposes. 42
U.S.C.S. § 2000e(k).
General Overview
[HN15] See Iowa Code § 216.6(1)(a).
[HN19] Pursuant to sex discrimination claims under both
2000e et seq., and the Iowa Civil Rights Act, Iowa Code
§ 216.6, for a plaintiff to survive summary judgment, she
must adduce enough admissible evidence to raise genuine doubt as to the legitimacy of a defendant's motive,
even if that evidence does not directly contradict or disprove a defendant's articulated reasons for its actions.
[HN16] The Iowa Civil Rights Act (ICRA), Iowa Code §
216.6 is patterned after Title VII of the Civil Rights Act
of 1964, 42 U.S.C.S. § 2000e et seq., and Iowa courts
characterize federal case law on Title VII as "instructive"
when interpreting the ICRA.
Civil Procedure > Summary Judgment > Motions for
Summary Judgment > General Overview
Civil Procedure > Summary Judgment > Supporting
Materials > General Overview
[HN20] An employee's conclusory summary judgment
affidavit is insufficient to withstand a properly supported
motion for summary judgment.
& Sex Discrimination > Employment Practices > Discharges
[HN17] Under both Title VII of the Civil Rights Act of
1964, 42 U.S.C.S. § 2000e et seq., and the Iowa Civil
Rights Act, Iowa Code § 216.6, to establish a prima facie
case of sex discrimination, a plaintiff must establish that:
(1) she was a member of a protected class; (2) she was
qualified for her position; and (3) she was discharged
under circumstances giving rise to an inference of discrimination.
COUNSEL: For plaintiff(s): Jeffrey M. Lipman, Lipman
Law Firm, Des Moines, IA.
For plaintiff(s): John R. Silko, Bloomfield, IA.
For defendant(s): Helen C. Adams, Dickinson, Mackaman, Tyler & Hagen, Des Moines, IA.
JUDGES: JAMES E. GRITZNER, JUDGE, UNITED
STATES DISTRICT COURT.
OPINION BY: JAMES GRITZNER
OPINION
[*971] RULING ON DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
General Overview
[HN18] Pursuant to sex discrimination claims under both
2000e et seq., and the Iowa Civil Rights Act, Iowa Code
§ 216.6, attendance is a necessary job function and that
the plaintiff, who was unable to come to work on a regular basis, could not establish that he could perform the
essential functions of his job.
General Overview
This matter is before the Court on Defendant's Motion for Summary Judgment. Plaintiff, Leelynn J. Gorman ("Gorman") filed her complaint on May 5, 2000,
alleging disability discrimination under both the ADA
and the ICRA and sex discrimination under both Title
VII and the ICRA. On April 15, 2002, Defendant, Wells
Manufacturing Corporation ("Wells") moved for summary judgment on all of Plaintiff's claims.
The motion came on for hearing on June 26, 2002.
Defendant was represented by Attorney Helen Adams.
Plaintiff was represented by Attorneys Jeffrey Lipman
and John Silko. Following the hearing, Plaintiff sought
leave to file a supplemental brief, which the Court allowed and has considered. For the reasons [**2] discussed below, Defendant's Motion for Summary Judgment is granted.
I. BACKGROUND
App. Def. 85
Page 5
All of Gorman's claims stem from her termination
from Wells, which she alleges was motivated by absences which she incurred due to "pregnancy-related
illnesses". Gorman was employed at Wells' packaging
and distribution center in Centerville, Iowa, from January
20, 1992, until she was terminated on September 25,
1998. 1 Gorman was employed at Wells in 1993, during
her first pregnancy. Gorman does not allege any discrimination by Wells in connection with her first pregnancy and leave in 1993 and 1994. The discrimination
Gorman claims relates to her second pregnancy, of which
she informed Wells in March or April of 1998.
1 Gorman was terminated in February 1992 due
to lack of work, but was rehired in March 1992.
In 1998, the time period relevant to this litigation,
Wells had a "no fault" attendance policy in effect. Under
this policy, there were no "excused" or "unexcused" absences. Certain absences, such as absences under [**3]
the FMLA, were not counted under the attendance policy. Wells classified any absence that was arguably related to Gorman's pregnancy as an FMLA absence, as
long as Wells had reason to believe that Gorman was
unable to work during the period of the absence. Consequently, these absences were not counted under Wells'
attendance policy.
Under the attendance policy, as described in Wells'
employee handbook, when an employee incurred 42
hours of absence from work, he or she would be subject
to "Step 1" of Wells' disciplinary process: a verbal warning. When an employee incurred 52 hours of absence, he
or she would be subject to "Step 2" of the disciplinary
process: a written warning. At 62 hours of absence, the
employee would be subject to "Step 3": a three-day unpaid suspension. Any absences beyond Step 3 would be
grounds for termination. In addition, when an employee
was absent four or more consecutive days due to illness,
Wells required the employee to provide medical authorization in order to return to work.
[*972] Gorman had ongoing attendance problems
during her employment at Wells. In the first nine months
of 1998, she was absent over 530 hours (approximately
12.5 weeks). Of those 530 hours, [**4] 102 (approximately 2.5 weeks) were counted under the attendance
policy. Approximately 64 hours of Gorman's chargeable
absence resulted from her absence from work from September 14 through September 22, 1998. It is this latter
period in September that is at issue in this case.
Gorman alleges that on September 14, 1998, she
woke up feeling nauseated and had a headache, which
became "excruciating" when she attempted to sit up. She
alleges that she began vomiting and felt extremely fatigued, such that she could hardly get out of bed. She
alleges that she awoke in this same fashion each morning
until September 23, 1998. Gorman asserts that throughout her 1998 pregnancy, she had experienced periodic
nausea, vomiting, dizziness, severe headaches, and fatigue. She believes that the symptoms she experienced
from September 14 through 22 were all pregnancyrelated, but she admitted that at the same time, she was
also suffering from allergies and associated sinus problems, which contributed to her "overall malaise". Each
morning from September 14 to September 22, 1998,
Gorman called in sick, reporting her illness to Wells,
pursuant to company policy.
In relation to this period, Gorman saw her [**5]
physician, Dr. Stephen E. Sparks ("Sparks"), on September 22. Sparks later recalled that he thought Gorman was
presenting with a sinus headache. He prescribed amoxicillin "to clean out bacteria in the sinuses". Gorman also
asked Dr. Sparks to provide written medical authorization so that she could return to work. Sparks gave her a
pre-printed form "Disability Certificate". The form certified that Gorman "was under [Sparks'] professional care
from 9/14/98 to 9/22/98 inclusive, and was totally incapacitated during this time". The form further certified
that Gorman had recovered sufficiently to be able to return to regular work duties on September 23, 1998, with
no restrictions.
After Gorman left his office, Sparks initiated a telephone call to Barb Hunt ("Hunt") in the human resources
department at Wells to discuss what was "going on" with
Wells (i.e., to see if they could rearrange Gorman's work
schedule to part-time hours). With respect to Gorman's
absences from work, Sparks recalled that he told Hunt
that he guessed he thought Gorman could return to work
at that time, that there wasn't any major physical problem
such that she couldn't return to work.
Gorman reported to work [**6] at her scheduled
time on September 23, 1998, and placed the Disability
Certificate which Sparks had given her on Barb Hunt's
desk. Hunt stated that when she reviewed the form, she
believed there was a conflict between the information
Sparks had conveyed to her the prior day on the telephone and the Disability Certificate. Hunt had understood what Sparks said on the telephone to mean that
Gorman was not unable to work during the period from
September 14 through 22. Because she believed that the
absences from September 14 to September 22 did not
appear to qualify as FMLA absences, at 9:00 a.m. on
September 23, 1998, Hunt called Gorman into her office,
suspended Gorman from work, and had her escorted out
of the building.
To clarify what she believed to be conflicting information between the phone call and the Disability Certificate, Hunt faxed a letter to Sparks summarizing what she
App. Def. 86
Page 6
thought had been said and asking him to sign it and/or
make any corrections he felt [*973] necessary. In pertinent part, the letter stated:
You informed me that, upon examining
Leelynn on September 22, 1998, you did
not believe it medically necessary for her
to be off work on that day. You further informed [**7] me that you told her that
while you would provide a note authorizing her return to work only, you could not
determine that it was medically necessary
for her to be off work at all during the period . . . it is my understanding that you
were not treating Leelynn for the entire
period covered by the form, that you have
no information which would lead to the
belief that she was medically not able to
work during the period from September
14 through September 21, and that in your
medical opinion her condition was such
that she was not unable to work on September 22, 1998.
Sparks signed the letter, certifying that the information in the letter is correct, and also personally made the
following handwritten corrections: 2
(1) Leelynn has been under our care
during her pregnancy.
(2) I do not know of any disabling
conditions.
(3) We were first contacted by
Leelynn on 9/16 to report that she missed
work and needed an excuse to go back to
work (unable to follow-up due to phone #
change).
(4) She presented on 9/22 asking for
coverage from 9/14 through 22, she was
given a work excuse to return to work, I
affirm that I had not asked her to stay
home from work, she had [**8] been
warned about malingering on 9/8/98.
(5) We would like to see Leelynn
commit to equitable work schedule.
2 Sparks now maintains that he stands by his
original Disability Certificate, which had indi-
cated that Gorman was "totally incapacitated"
from September 14 through 22.
Hunt counted the September 14 through September
22 absences under the Wells attendance policy because
Wells then had reason to believe that Gorman was not
unable to work during that period. Deeming the absences
as not FMLA-qualifying, and reviewing Gorman's attendance and disciplinary records, 3 Wells terminated Gorman's employment, effective September 25, 1998.
3 Before she had informed Wells of her pregnancy, Gorman was given a three-day unpaid
suspension on January 7, 1998, as a result of an
incident where she clocked in and then left the
building to park her car, contrary to company policy. At that time, she was warned that any further
performance issues during the next twelve
months could result in termination.
[**9] Wells submits that seven other employees at
the Centerville plant, excluding Gorman, were pregnant
during 1998. All of these seven employees returned to
"active" duties following the end of their respective
leaves. Three of these employees chose to voluntarily
resign after returning to work, all for the stated reason of
desiring to remain home with the child. Wells also notes
that of the four employees of the Centerville plant, excluding Gorman, that were terminated in 1998, two were
female, two were male, and none of these four was pregnant to Wells' knowledge.
II. STANDARDS FOR SUMMARY JUDGMENT
[HN1] Defendant is entitled to summary judgment
"if the pleadings, depositions, answers to interrogatories,
any, show that there is no genuine issue as to any material fact and that [Defendant] is entitled to judgment as a
matter of law". Fed. R. Civ. P. 56(c). "Although we view
the [*974] facts in the light most favorable to the nonmoving party, in order to defeat a motion for summary
judgment, the non-moving party cannot simply create a
fact dispute; rather, there must be a genuine dispute over
those facts that could affect the outcome [**10] of the
lawsuit". Carter v. St. Louis University, 167 F.3d 398,
401 (8th Cir. 1999). "A dispute is not 'genuine' unless the
evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party." Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1028 (8th Cir. 2000)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)).
"[HN2] Because discrimination cases often depend
on inferences rather than on direct evidence", the Eighth
Circuit has cautioned that "summary judgment should
seldom be used in employment discrimination cases".
App. Def. 87
Page 7
Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994).
"Although summary judgment is to be used sparingly in
employment discrimination cases, it is appropriate where
one party has failed to present evidence sufficient to create a jury question as to an essential element of its
claim." Whitley v. Peer Review Systems, Inc., 221 F.3d
1053, 1055 (8th Cir. 2000) (citations omitted); see also
Kellogg v. Union Pac. R. Co., 233 F.3d 1083, 1086 (8th
Cir. 2000) (summary judgment is proper if the employee
[**11] fails to establish any element of her prima facie
ADA claim).
III. LEGAL ANALYSIS
A. Disability Discrimination
Gorman asserts claims of disability discrimination
under both the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq., and the Iowa Civil Rights Act
("ICRA"), Iowa Code § 216.6. Gorman predicates these
claims on the asserted disability of pregnancy or pregnancy with complications.
1. ADA Claim
[HN3] With respect to both the sex and disability
claims, Gorman has the initial burden to establish a
prima facie case of discrimination. St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 506-08, 125 L. Ed. 2d 407,
113 S. Ct. 2742 (1993). [HN4] To establish a prima facie
case of disability discrimination under the ADA, Gorman
must establish: (1) that she is disabled under the ADA;
(2) that she is qualified to perform the essential functions
of her job with or without reasonable accommodation;
and (3) that she has suffered an adverse employment
action under circumstances giving rise to an inference of
unlawful discrimination. E.g., Sprenger v. Fed. Home
Loan Bank, 253 F.3d 1106, 1113 (8th Cir. 2001). [**12]
[HN5] If Gorman is able to establish a prima facie
case of discrimination, the burden shifts to Wells to articulate a legitimate, nondiscriminatory reason for terminating Gorman's employment. E.g., Nelson v. Wittern
Group, Inc., 140 F. Supp. 2d 1001, 1005 (S.D. Iowa
2001); see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817
(1973) (establishing burden-shifting framework). If
Wells is able to meet this burden of production, Gorman
must be afforded an opportunity to show that Wells' proffered reason was a mere pretext. Nelson, 140 F. Supp.
2d at 1005; see also McDonnell Douglas, 411 U.S. at
802-03.
a. Was Gorman "disabled" within the meaning of
the ADA?
[HN6] Under the ADA, "disability" means "a physical or mental impairment that substantially limits one or
more major life activity of such individual". 42 U.S.C. §
12102(2)(A). "Physical impairment" means "any physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the [*975]
following body systems: neurological, musculoskeletal,
special sense organs, respiratory [**13] (including
speech organs), cardiovascular, reproductive, digestive,
genito-urinary, hemic and lymphatic, skin, and endocrine". 29 C.F.R. § 1630.2(h)(1). The EEOC Technical
Assistance Manual advises, "Other conditions, such as
pregnancy, that are not the result of a physiological disorder are also not impairments". 29 C.F.R. § 1630.2(h).
Moreover, "temporary, non-chronic impairments of short
duration, with little or no long term or permanent impact,
are usually not disabilities". 29 C.F.R. app. § 1630.2(j).
Gorman concedes that no court currently maintains
that [HN7] pregnancy per se is a disability under the
ADA. See Navarro-Pomares v. Pfizer Corp., 97 F. Supp.
2d 208, 212 (D.P.R. 2000) (noting that no court now
maintains that pregnancy per se is a disability under the
ADA), rev'd on other grounds, Navarro v. Pfizer Corp.,
261 F.3d 90 (1st Cir. 2001). However, Gorman argues
that [HN8] pregnancy-related complications can constitute a disability under the ADA. See Hernandez v. City
of Hartford, 959 F. Supp. 125 (D. Conn. 1997) (premature onset of labor that could only be controlled with
medication [**14] constituted a disability); Gabriel v.
City of Chicago, 9 F. Supp. 2d 974 (N.D. Ill. 1998) (back
pain, stomach pain, swelling, and premature birth constituted "physical impairments"); Soodman v. Wildman,
Harrold, Allen & Dixon, 1997 U.S. Dist. LEXIS 1495,
No. 95 C3834, 1997 WL 106257, at *6 (N.D. Ill. Feb.
10, 1997) (incompetent cervix causing danger of preterm labor constituted disability under ADA); Patterson
v. Xerox Corp., 901 F. Supp. 274 (N.D. Ill. 1995) (severe
pregnancy-related back pain constituted disability);
Darian v. Univ. of Mass. Boston, 980 F. Supp. 77 (D.
Mass. 1997) (severe pelvic bone pain, uterine contractions, irritation and pain of uterus, and back pain constituted disability); Cerrato v. Durham, 941 F. Supp. 388
(S.D.N.Y. 1996) (denying motion to dismiss ADA claim
when the plaintiff suffered from spotting, leaking,
cramping, dizziness, and nausea); see also Conley v.
United Parcel Service, 88 F. Supp. 2d 16, 20 (E.D.N.Y.
2000) (holding that it is the physiological impairment
that results from complications that renders the person
disabled and holding that miscarriage without resultant
complications [**15] did not constitute disability).
Wells counters that the majority of federal courts
hold that [HN9] absent unusual circumstances, pregnancy-related medical conditions do not constitute a disability. See Muska v. AT&T Corp., 1998 U.S. Dist.
LEXIS 13215, No. 96 C5952, 1998 WL 544407, at *9
(N.D. Ill. Aug. 25, 1998) (temporary fetal distress did not
App. Def. 88
Page 8
render pregnant employee disabled); Leahr v. Metro.
Pier & Exposition Auth., 1997 U.S. Dist. LEXIS 10601,
No. 96 C1388, 1997 WL 414104, at *2-3 (N.D. Ill. July
17, 1997) (holding that plaintiff's pregnancy-related
complications of high blood pressure and gall bladder
problems, which were only temporary, did not constitute
a disability under the ADA); Richards v. City of Topeka,
934 F. Supp. 378, 382 (D. Kan. 1996), aff'd, 173 F.3d
1247, 1250-51 (10th Cir. 1999) (granting summary
judgment on [*976] ADA claim because pregnancy is a
physiological condition, but not a disorder, and as such,
pregnancy cannot be called an impairment); Gudenkauf
v. Stauffer Communs., Inc., 922 F. Supp. 465, 474 (D.
Kan. 1996) (holding that typical complications of pregnancy, including morning sickness, do not constitute a
disability); Jessie v. Carter Health Care Ctr., Inc., 926 F.
Supp. 613 (E.D. Ky. 1996) [**16] (employee's pregnancy with no unusual circumstances was not a disability
under the ADA); Tsetseranos v. Tech Prototype, Inc.,
1995 U.S. Dist. LEXIS 11158 (D.N.H. 1995) (holding
employee whose pregnancy was complicated by ovarian
cysts not disabled); Kennebrew v. N.Y. City Hous. Auth.,
2002 U.S. Dist. LEXIS 3038, No. 01 CIV 1654 (JSR)
(AJP), 2002 WL 265120, at *18 n.32 (S.D.N.Y. Feb. 26,
2002) (granting summary judgment on ADA claim
predicated on gestational diabetes because it was a shortterm condition and was not substantial enough to constitute a disability for ADA purposes); Minnot v. Port Auth.
of N.Y. & N.J., 116 F. Supp. 2d 513, 525 (S.D.N.Y. 2000)
(noting that "only in extremely rare circumstances" will
complications arising from pregnancy constitute a disability under the ADA and holding that plaintiff who
suffered pregnancy-related complications and miscarried
was not disabled); LaCoparra v. Pergament Home Ctrs.,
Inc., 982 F. Supp. 213, 227 (S.D.N.Y. 1997) (holding that
in order to qualify as a disability, the complication, "as
distinguished from the condition of pregnancy itself,
must be "substantial enough to qualify as a 'disability',
[**17] regardless of the fact that the woman is pregnant"); Johnson v. A.P. Products, Ltd., 934 F. Supp. 625,
626-27 (S.D.N.Y. 1996) (neither employee's pregnancy
nor its resultant complications constituted disability under ADA); Villarreal v. J.E. Merit Constructors, Inc.,
895 F. Supp. 149, 152 (S.D. Tex. 1995) (holding that
pregnancy and related medical conditions do not, absent
unusual circumstances, constitute a physical impairment
under the ADA; pregnant employee who miscarried was
not disabled under the ADA).
Thus, the majority of federal courts hold that pregnancy-related complications do not constitute a disability
under the ADA. In the few cases that have held that
pregnancy-related complications constitute a disability,
the plaintiffs' symptoms were significantly more serious
than Gorman's. Gorman stated in her deposition that the
only complication she experienced with her 1998 preg-
nancy was nausea; however, in her affidavit, she stated
that she experienced periodic nausea, vomiting, dizziness, severe headaches, and fatigue. During the period
from September 14 through 22, Gorman allegedly experienced nausea, vomiting, and extreme fatigue. The
Court [**18] regards as common knowledge that all of
these symptoms, at some degree of severity, are part and
parcel of a normal pregnancy. Even assuming that these
additional symptoms constitute "complications" of her
pregnancy, they are too short-term to qualify as a disability under the ADA. See 29 C.F.R. app. § 1630.2(j)
("Temporary, non-chronic impairments of short duration,
with little or no long term or permanent impact, are usually not disabilities.").
Thus, even if the Court accepts Dr. Sparks' original
Disability Certificate, which certified that Gorman was
"totally incapacitated" from September 14 through 22
and disregards his handwritten notations on Barb Hunt's
September 22 letter in which he affirmed that he did not
know of any disabling conditions which would render
Gorman unable to work, Gorman cannot establish that
she was disabled within the meaning of the ADA. Further, even if the Court accepts that the symptoms from
which Gorman suffered from September 14 through 22
were attributable to a pregnancy-related complication,
rather than a normal pregnancy accompanied by the sinus infection, and the Court considers the periodic symptoms which Gorman allegedly experienced throughout
[**19] her pregnancy, Gorman still cannot establish that
she was disabled within the meaning of the ADA. The
symptomatic period is just too finite, and Gorman's
symptoms too commonly associated with normal pregnancy, to bring her within the protection of the ADA.
The Court does not find that Gorman's symptoms constitute the "extremely rare circumstances" wherein pregnancy with complications can predicate a disability claim
under the ADA. See Minnot v. Port Auth. of N.Y. & N.J.,
116 F. Supp. 2d 513, 525 (S.D.N.Y. 2000) (noting that
"only in extremely rare circumstances" will complications arising from pregnancy constitute a disability under
the ADA).
[*977] The foregoing discussion obviates any concern that Dr. Sparks' apparently changing posture generates a genuine issue of material fact. 4 Assuming the
medical facts in a light most favorable to the Plaintiff's
position, the necessary threshold is unmet.
4 This factual issue might also be resolved quite
apart from the letter drafted by Ms. Hunt on behalf of Wells. Dr. Sparks' own handwritten notes
applied to the prepared summary letter are inescapably inconsistent with either his form certificate or his more recently offered opinion that
App. Def. 89
Page 9
Plaintiff was "totally incapacitated" during the
period at issue.
[**20] b. Was Gorman qualified to perform the
essential functions of her job with or without reasonable accommodation?
[HN10] To satisfy this element of her prima facie
case, Gorman "would be required to show that she was
'qualified' in the sense that she was doing her job well
enough to rule out the possibility that she was fired for
inadequate job performance, absolute or relative". See
Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 290 (8th
Cir. 1982) (ADEA case), cert. denied, 459 U.S. 1205, 75
L. Ed. 2d 438, 103 S. Ct. 1194 (1983); see also Nesser v.
Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.
1998) (applying this standard to ADA cases). As the
Eighth Circuit explained in Halsell, "The focus of this
inquiry, at this point, is not a determination of whether
[Gorman] was in fact performing her job adequately, but
rather whether there is sufficient evidence of unsatisfactory performance to be a legitimate concern to her employer". Halsell, 683 F.2d at 290.
Thus, the inquiry becomes whether Gorman had unsatisfactorily performed her job such that it caused a legitimate concern to Wells. Wells submits [**21] that
Gorman's attendance problems are enough to cause a
legitimate concern. Wells notes that in the first nine
months of 1998, Gorman was absent from work for over
530 hours (12.5 weeks), and of those 530 hours, 102
hours (approximately 2.5 weeks) were for absences that
were counted under the attendance policy. Wells argues
that because it expects its employees to maintain acceptable attendance levels, and because Gorman's 102 hours
of chargeable absences were excessive and unacceptable,
she was not a "qualified employee" within the meaning
of the ADA and ICRA. See Halperin v. Abacus Tech.
Corp., 128 F.3d 191, 198 (4th Cir. 1997) (holding that
because employee was "unable to come to work on a
regular basis, he was unable to satisfy any of the functions of the job in question, much less the essential
ones"); Moore v. Payless Shoe Source, Inc., 139 F.3d
1210, 1213 (8th Cir. 1998) (adopting the holding in
Halperin); Nesser, 160 F.3d at 445 (holding that attendance is a necessary job function and that the plaintiff,
who was unable to come to work on a regular basis,
could not establish that he could perform the essential
functions [**22] of his job); Cole v. Staff Temps., 554
N.W.2d 699, 705 (Iowa 1996) (recognizing attendance as
a necessary job function under the ICRA); Falczynski v.
Amoco Oil Co., 533 N.W.2d 226, 231 (Iowa 1995) (same
as Cole).
The Court finds that Gorman's 102 hours of chargeable absences were grounds for Wells to have a "legitimate concern". This is especially true considering the
attendance policy, which implements "Step 1" of the
disciplinary process at 42 hours of absence, "Step 2" at
52 hours of absence, "Step 3" at 62 hours of absence, and
makes any absence after "Step 3" grounds for termination. Gorman's absences far exceed what would be
grounds for termination under Wells' attendance policy.
Additionally, Gorman [*978] had been warned in January 1998 that any further performance issues in the next
twelve months could result in termination. Thus, the
Court must find that due to her excessive absenteeism,
Gorman was not qualified to perform the essential functions of her job.
c. Has Gorman suffered an adverse employment
action under circumstances giving rise to an inference
of unlawful discrimination?
"[HN11] An inference of discrimination may be
raised [**23] by evidence that a plaintiff was replaced
by or treated less favorably than similarly situated employees who are not in the plaintiff's protected class."
Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.
1996); see also Mercer v. City of Cedar Rapids, 104 F.
Supp. 2d 1130, 1144 (N.D. Iowa 2000) (requiring employees identified for comparison to be "similarly situated in all relevant aspects"). Gorman has not offered any
"comparison" evidence in the way of similarly situated
non-protected class employees who were treated more
favorably than Gorman. Gorman claims that in this case,
there are no valid "comparators" who are "similarly situated in all relevant aspects" because she is unaware of
any employees who made use of their FMLA time as
extensively as Gorman. The Court does not find this
relevant. Gorman was not terminated for taking FMLA
leave; she was terminated for incurring excessive nonFMLA-qualifying absences. Thus, to raise an inference
of discrimination, Gorman would need to point to nonpregnant employees who had 102 hours of absences and
a prior suspension and were not terminated. She has produced no such evidence. 5
5 Although it is not its burden, Wells has proffered comparison evidence which supports the
contrary inference -- that Wells applies its disciplinary policy without regard to pregnancy or
sex. Wells notes that seven other employees at
the Centerville plant, excluding Gorman, were
pregnant during 1998. All of these seven employees returned to "active" duties following the end
of their respective leaves. Three of these employees chose to voluntarily resign after returning to
work, all for the stated reason of desiring to remain home with the child. Wells also notes that
of the four employees of the Centerville plant,
excluding Gorman, that were terminated in 1998,
two were female, two were male, and none of
App. Def. 90
Page 10
these four was pregnant to Well's knowledge. In
addition, Wells submits that Gorman's poor attendance record, resultant disciplinary actions,
and low performance review evaluations started
long before Gorman informed Wells of her 1998
pregnancy. Finally, Wells points to Gorman's
1993 pregnancy while employed at Wells, which
resulted in no adverse employment actions.
[**24] The Court finds that Gorman has failed to
meet her burden of producing evidence which raises an
inference of discrimination. Thus, Gorman has failed to
establish every element of her prima facie case, and as
such, Wells is entitled to summary judgment. See Kellogg v. Union Pac. R. Co., 233 F.3d 1083, 1086 (8th Cir.
2000) ([HN12] summary judgment is proper if the employee fails to establish any element of her prima facie
ADA claim).
Even assuming arguendo that Gorman was able to
establish her prima facie case, the Court could find Wells
has carried its burden in articulating a legitimate, nondiscriminatory reason for Gorman's termination -- excessive
absenteeism. Gorman has failed to show that this reason
is a pretext. See Dormeyer v. Comerica Bank-Illinois,
223 F.3d 579, 583 (7th Cir. 2000) (holding that [HN13]
excessive absenteeism is a valid reason for which to terminate a pregnant employee as long as excessive absenteeism of non-pregnant employees is not overlooked);
see also Kinkead v. Southwestern Bell Tel. Co., 49 F.3d
454, 456 (8th Cir. 1995) (affirming summary judgment
in ERISA retaliatory discharge case where the plaintiff
[**25] failed to show that [*979] the employer's proffered reason of excessive absenteeism was pretext).
2. ICRA Claim
The Iowa Supreme Court has determined that claims
of pregnancy discrimination under the ICRA are treated
as sex discrimination claims, not disability discrimination claims. Wallace v. Osceola Foods, Inc., 2000 U.S.
Dist. LEXIS 22249, No. 4-98-CV-80563 at 4 (S.D. Iowa
Feb. 22, 2000) (order granting summary judgment);
Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n, 268 N.W.2d 862, 864 (1976); see also Sahai v. Davies, 557 N.W.2d 898, 900 ("any classification based on
pregnancy is a distinction based on sex").
Even if the Court were to treat this claim as a disability claim, because of the similarity between the ADA
and the ICRA's prohibition of disability discrimination,
Gorman's claim would fail for the same reasons it would
fail under the ADA, i.e., (1) she was not "disabled" for
purposes of the ICRA; (2) she was not qualified to retain
the job; and (3) she has not established that she was discharged because of the "disability". See Falczynski v.
Amoco Oil Co., 567 N.W.2d 447, 449 (Iowa App. 1997)
(listing the elements of a prima facie [**26] case of disability discrimination under Iowa law).
B. Sex Discrimination
In addition to her disability claims, Gorman also asserts claims of sex discrimination based on pregnancy
under Title VII, as amended by the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k), and the Iowa
Civil Rights Act ("ICRA"), Iowa Code § 216.6.
[HN14] Title VII of the Civil Rights Act of 1964
makes it "an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of an individual's
race, color, religion, sex, or national origin". 42 U.S.C. §
2000e-2(a). In 1978, Congress enacted the Pregnancy
Discrimination Act ("PDA") to clarify that the terms
"because of sex" and "on the basis of sex" included "because of and on the basis of pregnancy, childbirth, or
related medical conditions", and that "women affected by
pregnancy, childbirth, or related medical conditions shall
be treated the same for all employment-related purposes.
...". 42 U.S.C. § 2000e (k) [**27] ; see also Lang v. Star
Herald, 107 F.3d 1308, 1311 (8th Cir. 1997) (explaining
the expansion of Title VII to cover pregnancy discrimination).
[HN15] Similarly, the ICRA states:
It shall be an an unfair or discriminatory
practice for any person to: refuse to hire,
accept, register, classify, or refer for employment, to discharge any employee, or
to otherwise discriminate in employment
against any applicant for employment or
employee because of the age, race, creed,
color, sex, national origin, religion, or
disability of such applicant or employee,
unless based upon the nature of the occupation.
Iowa Code § 216.6(1)(a). Because of the similarity between federal and state law, Gorman's sex discrimination
claims will be addressed together. See Engstrand, 946 F.
Supp. 1390, 1397 n.4 (S.D. Iowa 1996) (recognizing that
[HN16] the ICRA is "patterned after Title VII" and noting that "Iowa courts characterize federal case law on
Title VII as 'instructive'") (quoting Brine v. Univ. of
Iowa, 90 F.3d 271 (8th Cir. 1996)).
[HN17] Under both Title VII and the ICRA, to establish a prima facie case of sex discrimination, Gorman
[**28] must establish that: (1) she was a member of a
App. Def. 91
Page 11
protected class -- pregnant females; (2) she was qualified
for her position; and (3) she was discharged [*980] under circumstances giving rise to an inference of discrimination. E.g., Bergstrom-Ek v. Best Oil Co., 153 F.3d 851,
857 (8th Cir. 1998); Lang, 107 F.3d at 1311; Reiss v. ICI
Seeds, Inc., 548 N.W.2d 170, 174 (Iowa App. 1996).
The parties agree that as a pregnant female, Gorman
was a member of a protected class. However, Gorman
has failed to establish the "qualified" prong of her prima
facie case. As it did with respect to her ADA claim,
Gorman's excessive absenteeism precludes deeming her
qualified to perform the essential functions of her job.
See Nesser v. Trans World Airlines, Inc., 160 F.3d 442,
445 (8th Cir. 1998) (holding that [HN18] attendance is a
necessary job function and that the plaintiff, who was
unable to come to work on a regular basis, could not establish that he could perform the essential functions of
his job); Falczynski v. Amoco Oil Co., 533 N.W.2d 226,
231-32 (Iowa 1995) (holding that to establish that he was
a qualified employee, [**29] plaintiff had to establish
that he could perform the essential functions of his job
and that his excessive absenteeism under the employer's
attendance policy prevented him from performing the
essential functions of his job). In addition, because Gorman has failed to meet her burden to produce any evidence that similarly situated non-protected class employees were treated more favorably than she, Gorman has
failed to raise an inference of discrimination.
Moreover, even if Gorman had established a prima
facie case of sex discrimination, she has failed to adduce
sufficient evidence to create a fact question that Wells'
proffered reason of excessive absenteeism was pretextual. 6 See Buettner v. Arch Coal Sales Co., 216 F.3d
707, 717 (8th Cir. 2000) ("[HN19] For a plaintiff to survive summary judgment, she must adduce enough admissible evidence to raise genuine doubt as to the legitimacy of a defendant's motive, even if that evidence does
not directly contradict or disprove a defendant's articulated reasons for its actions.").
6 In her affidavit, Gorman makes the conclusory
allegation that Barb Hunt "tried to manipulate Dr.
Sparks into agreeing with her that [she] wasn't ill
during the week of September 14 through 22 just
as an excuse to fire [her] for taking so much
leave". This allegation has no evidentiary basis
and is insufficient to support an inference of discriminatory animus, considering the fact that
Sparks voluntarily hand wrote on Hunt's letter
that he did not know of any disabling conditions
and that he had not asked her to stay home from
work. See generally Helfter v. United Parcel Service, Inc., 115 F.3d 613 (8th Cir. 1997) (holding
[HN20] employee's conclusory summary judgment affidavit insufficient to withstand properly
supported motion for summary judgment).
[**30] IV. CONCLUSION
Defendant has shown that there is no genuine issue
of material fact and that it is entitled to judgment as a
matter of law on all of Plaintiff's claims. Accordingly,
the Motion for Summary Judgment is granted. Defendant has also moved to strike paragraphs 11 through 15
of Plaintiff's affidavit. The Court has reviewed the entire
record and has determined on its own which portions of
Plaintiff's affidavit should be considered. Therefore, Defendant's Motion to Strike is denied as being mooted by
the ruling on the motion for summary judgment. The
Clerk of Court shall enter judgment dismissing the complaint.
IT IS SO ORDERED.
Dated this 15th day of July, 2002
JAMES E. GRITZNER, JUDGE
UNITED STATES DISTRICT COURT
App. Def. 92
Page 1
Analysis
As of: Oct 26, 2011
Todd M. Hertzberg, Appellant v. The Austin Diagnostic Clinic Association, P.A.
d/b/a The Austin Diagnostic Clinic, Appellee
NO. 03-07-00072-CV
COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN
September 11, 2009, Filed
PRIOR HISTORY: [*1]
FROM COUNTY COURT AT LAW NO. 1 OF
TRAVIS COUNTY. NO. 01-CV-05-002021, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant, a former employee of appellee employer, sought review of a summary judgment from the County Court at Law No. 1 of
Travis County (Texas), which ruled that the employee's
suit for breach of the parties' employment agreement was
time-barred.
OVERVIEW: The contract provided for three months'
notice of termination and required the employer, if it
opted not to extend the agreement, to provide additional
insurance to the employee and to pay his moving expenses. Less than one month before the expiration of the
contract, the employer notified the employee that it was
not renewing his employment and that it expected him to
pay for his own insurance and moving expenses. The
complaint was filed more than four years later. The court
found the action untimely under Tex. Civ. Prac. & Rem.
Code Ann. § 16.051 (2008). The cause of action accrued
when the employee received the notice, which made
clear the lack of three months' notice and the refusal to
pay insurance and moving expenses. Several arguments
not raised in the trial court were not preserved for review
under Tex. R. App. P. 33.1(a)(1). The employee's failure
to cite authority regarding attorney fees and postjudgment interest waived those issues under Tex. R. App. P.
38.1(i). The appeal was not frivolous under Tex. R. App.
P. 45. The employer waived the issue of appellate attorney fees by failing to raise the issue below or to file a
notice of appeal under Tex. R. App. P. 25.1(c).
OUTCOME: The court affirmed the judgment of the
trial court.
CORE TERMS: attorney's fees, notice, summary judgment, moving expenses, employment agreement, postjudgment, tail, cause of action, tail-insurance, statute of
limitations, breached, action accrued, reimburse, insurance claims, prevailing party, frivolous, waived, termination, waive, discovery rule, cause of action accrues, judicial remedy, legal services, breach-of-contract, reimbursement, limitations period, legal-sufficiency, discovery-rule, conclusively, claims-made
App. Def. 93
Page 2
2009 Tex. App. LEXIS 7149, *
[HN1] An appellate court reviews a trial court's summary
judgment de novo.
General Overview
[HN2] Summary judgment is proper when there are no
disputed issues of material fact and the movant is entitled
to judgment as a matter of law. Tex. R. Civ. P. 166a(c).
Civil Procedure > Pleading & Practice > Defenses,
Demurrers & Objections > Affirmative Defenses >
Statutes of Limitations > General Overview
[HN3] A defendant moving for summary judgment on
the affirmative defense of limitations has the burden of
conclusively establishing that defense. If the movant
establishes that limitations bars the action, the nonmovant must then adduce summary-judgment proof raising a fact issue in avoidance of limitations.
[HN4] When reviewing a summary judgment, an appellate court takes as true all evidence favorable to the
nonmovant and indulges every reasonable inference and
resolves any doubts in the nonmovant's favor.
Contracts Law > Defenses > Statutes of Limitations
Governments > Legislation > Statutes of Limitations >
Time Limitations
[HN5] The statute of limitations for a breach-of-contract
action is four years from the date the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.051
(2008).
Time Limitations
[HN6] As a general rule, a cause of action accrues and
the statute of limitations begins to run when facts come
into existence that authorize a party to seek a judicial
remedy. In most cases, a cause of action accrues when a
wrongful act causes a legal injury, regardless of when the
plaintiff learns of that injury or if all resulting damages
have yet occurred.
Time Limitations
[HN7] In order to determine when a plaintiff's cause of
action accrued, a court must first look at the injury on
which he based his cause of action and then determine
when the facts underlying the cause of action came into
existence.
Time Limitations
[HN8] The discovery-rule exception should be applied
only where an injury is unlikely to be discovered within
the prescribed limitations period despite due diligence.
Civil Procedure > Remedies > Costs & Attorney Fees >
Attorney Expenses & Fees > General Overview
Abuse of Discretion
[HN9] An appellate court reviews a trial court's decision
to either grant or deny attorney's fees under an abuse of
discretion standard.
Attorney Expenses & Fees > Reasonable Fees
[HN10] An appellate court reviews the amount of attorney's fees awarded under a legal-sufficiency standard.
Abuse of Discretion
[HN11] A trial court abuses its discretion if it acts without reference to any guiding rules and principles. To determine whether a trial court abused its discretion, an
appellate court must determine whether the trial court's
action was arbitrary or unreasonable.
Attorney Expenses & Fees > Reasonable Fees
[HN12] Because an appellate court reviews the amount
of attorney's fees awarded under a legal-sufficiency review, the appellate court must view the evidence in a
light that tends to support the disputed finding and disregard evidence and inferences to the contrary. If more
than a scintilla of evidence supports the challenged finding, the legal-sufficiency challenge must fail.
App. Def. 94
Page 3
2009 Tex. App. LEXIS 7149, *
Civil Procedure > Appeals > Briefs
[HN13] Tex. R. App. P. 38.1(i) requires citation to authority.
Civil Procedure > Appeals > Frivolous Appeals
[HN14] Tex. R. App. P. 45 authorizes an appellate court
to award a prevailing party just damages upon a determination that an appeal is frivolous. In determining whether
an appeal is frivolous, the appellate court reviews the
record from the appellant's viewpoint and decides
whether the appellant had reasonable grounds to believe
the judgment could be reversed. Whether to grant sanctions for a frivolous appeal is a matter of discretion that
an appellate court exercises with prudence and caution
and only after careful deliberation in truly egregious circumstances.
Civil Procedure > Appeals > Reviewability > Notice of
Appeal
[HN15] See Tex. R. App. P. 25.1(c).
COUNSEL: For appellant: Mr. Hugh M. Barton, Austin,
TX.
For appellee: Mr. Scott Brutocao, Mr. Robert M. Chance,
Ogletree, Deakins, Nash, Smoak & Stewart, Austin, TX.
JUDGES: Before Justices Patterson, Puryear and
Pemberton.
OPINION BY: David Puryear
OPINION
parties could terminate the agreement at any time upon
three-months' prior notice. Specifically with regard to
ADC's termination of the agreement, the contract stated:
This Agreement [*2] may be terminated by [ADC], for any reason, upon
three (3) months notice in advance. During the notice period, Doctor's duties shall
continue and Doctor shall receive compensation as usual until the end of said
notice period, provided Doctor performs
all of Doctor's usual duties.
The contract further provided that "[i]n the event of termination of this agreement by either party, Doctor
hereby agrees to purchase a tail policy prior to such termination date." 1 In addition, the contract included a provision regarding Hertzberg's possible advancement to an
associate physician position, stating:
[ADC] will notify physician ninety (90)
days prior to end of employment agreement as to [ADC's] intent to advance or
not advance physician to Associate status.
Should [ADC] not advance physician to
Associate status and elect not to extend
physician employment agreement, [ADC]
agrees to bear the expense of tail policy
for professional liability to cover the period of employment physician [sic] while
working at [ADC], and [ADC] agrees to
waive physician's obligation to reimburse
[ADC] for the expense of moving originally incurred to relocate physician to
Austin at the commencement of this employment [*3] agreement.
MEMORANDUM OPINION
Appellant, Todd M. Hertzberg, appeals from a
summary judgment in favor of appellee, The Austin Diagnostic Clinic Association, P.A. d/b/a The Austin Diagnostic Clinic ("ADC"), in a breach-of-contract suit.
Hertzberg raises two issues on appeal, asserting that: (1)
the trial court erred in granting summary judgment based
on limitations where ADC failed to conclusively establish that the statute of limitations began running before
November 25, 2001; and (2) the trial court erred in granting ADC's requests for attorney's fees and post-judgment
interest. We affirm the trial court's judgment.
BACKGROUND
In February 1999, Hertzberg entered into an employment contract with ADC in which he agreed to work
for ADC as a physician radiologist from October 1, 1999
to September 30, 2001. The contract provided that both
1 A "tail policy" is an insurance policy covering
a professional once the professional's "claimsmade" insurance policy is discontinued. Tail insurance essentially extends the period of the
claims-made policy to allow additional time to
make claims for acts occurring during the time
the claims-made policy was in effect. See Woods
v. Mercer, Inc., 769 S.W.2d 515, 516 (Tex. 1988).
During his term of employment, Hertzberg did not
become board-certified in radiology. According to ADC
policy, physicians were prohibited from being promoted
to associate positions unless they first became boardcertified in their respective specialties. Thus, rather than
promoting Hertzberg, ADC offered in early September
2001 to extend his employment for one year and increase
App. Def. 95
Page 4
2009 Tex. App. LEXIS 7149, *
his salary. Hertzberg rejected the offer. In a memorandum dated September 11, 2001, ADC notified Hertzberg
that because ADC could not offer him an associate position and because he had rejected ADC's offer to extend
his contract, his last day of employment at ADC would
coincide with the last day of his contract term, which was
September 30, 2001. The memo also stated that ADC
expected Hertzberg to pay for his tail-insurance policy
[*4] and reimburse ADC for his moving expenses. On
September 14, 2001, Hertzberg's attorney responded in a
letter to ADC asserting that Hertzberg would not pay for
his tail-insurance coverage or reimburse ADC for his
moving expenses because ADC did not provide him with
the required ninety days' notice that he would not be
promoted to an associate position and that ADC would
not continue the employment relationship.
Hertzberg ultimately worked until September 17,
2001, and was paid through the month of September due
to leave he had accumulated during his employment. On
November 21, 2005, he filed suit for breach of contract,
alleging that ADC breached the employment agreement
by failing to: (1) provide him with ninety days' written
notice that he would not be advanced to an associate position and that ADC would not extend the employment
agreement; (2) provide him with a minimum of three
months' written notice of its intent to terminate the
agreement; and (3) pay for his tail-insurance policy and
waive reimbursement of his moving expenses.
On August 17, 2006, ADC filed a motion for summary judgment, contending that Hertzberg's suit was
barred by the four-year statute of limitations applicable
[*5] to breach-of-contract claims. The trial court set a
hearing for the motion on October 9, 2006. On September 29, 2006, Hertzberg filed a cross-motion for summary judgment, asserting that he filed his suit within the
limitations period and that he was entitled to judgment as
a matter of law on his claims. On October 5, 2006, ADC
filed an objection to Hertzberg's cross-motion, arguing
that the trial court should not consider the motion at the
hearing because Hertzberg did not timely file the motion.
The trial court did not rule on ADC's objection. At the
hearing, the trial court considered and granted ADC's
motion and reserved the issue of attorney's fees for another hearing. A month later, the trial court held a hearing in which it granted ADC's request for attorney's fees.
The trial court then granted a final judgment in favor of
ADC on November 7, 2006. ADC later filed a motion to
modify the judgment to include post-judgment interest,
and the trial court granted the motion and issued a modified final judgment including post-judgment interest on
November 21, 2006. This appeal followed.
STANDARD OF REVIEW
[HN1] We review the trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). [*6] [HN2] Summary
judgment is proper when there are no disputed issues of
material fact, and the movant is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.
2003). [HN3] A defendant moving for summary judgment on the affirmative defense of limitations has the
burden of conclusively establishing that defense. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846
(Tex. 2005). If the movant establishes that limitations
bars the action, the non-movant must then adduce summary-judgment proof raising a fact issue in avoidance of
limitations. Id. [HN4] When reviewing a summary
judgment, we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference
and resolve any doubts in the nonmovant's favor. Valence Operating Co., 164 S.W.3d at 661.
DISCUSSION
Hertzberg raises two issues on appeal, contending
that the trial court erred in: (1) granting summary judgment based on limitations where ADC failed to conclusively establish that the statute of limitations began to
run before November 25, 2001; and (2) granting ADC's
requests for attorney's fees and post-judgment interest.
We address each [*7] issue in turn.
Statute of Limitations
[HN5] The statute of limitations for a breach-ofcontract action is four years from the date the cause of
action accrues. See Tex. Civ. Prac. & Rem. Code Ann. §
16.051 (West 2008); Stine v. Stewart, 80 S.W.3d 586,
592 (Tex. 2002). [HN6] As a general rule, a cause of
action accrues and the statute of limitations begins to run
when facts come into existence that authorize a party to
seek a judicial remedy. Knott, 128 S.W.3d at 221. In
most cases, a cause of action accrues when a wrongful
act causes a legal injury, regardless of when the plaintiff
learns of that injury or if all resulting damages have yet
occurred. Id.
In its motion for summary judgment, ADC argued
that Hertzberg's suit was barred by limitations because
even assuming ADC breached the employment contract,
the latest date at which the cause of action could have
accrued was September 30, 2001, the day the contract
expired, and Hertzberg did not file suit until more than
four years later, on November 21, 2005. Although Hertzberg did not file a response to ADC's motion, he filed a
cross-motion in which he argued that his cause of action
did not accrue until November 25, 2001, the date on
which he paid [*8] his tail-insurance premium. He asserts the same argument on appeal.
App. Def. 96
Page 5
2009 Tex. App. LEXIS 7149, *
[HN7] In order to determine when Hertzberg's cause
of action accrued, we must first look at the injury on
which he based his cause of action and then determine
when the facts underlying the cause of action came into
existence. See id.
A. Alleged Injury
The grounds on which Hertzberg filed his suit include allegations that ADC did not: (1) provide him with
three months' notice before terminating his employment;
(2) provide him with ninety days' notice of its intent to
not advance him to associate status and not extend the
contract; and (3) pay for his tail-insurance policy or
waive reimbursement of his moving expenses. Regarding
the first alleged breach, Hertzberg asserted in his petition
that ADC's failure to give him three months' notice of
termination of the employment agreement breached the
provision in the contract stating that "[t]his Agreement
may be terminated by [ADC], for any reason, upon three
(3) months notice in advance." Regarding the second and
third alleged breaches--ADC's failure to give Hertzberg
ninety days' notice of its intent to not promote him to an
associate position and to not extend the contract, and
[*9] ADC's failure to pay for Hertzberg's tail-insurance
policy and waive the reimbursement of his moving expenses--Hertzberg asserted that those actions breached
the provision of the contract stating:
[ADC] will notify physician ninety (90)
days prior to end of employment agreement as to [ADC's] intent to advance or
not advance physician to Associate status.
Should [ADC] not advance physician to
Associate status and elect not to extend
physician employment agreement, [ADC]
agrees to bear the expense of tail policy
for professional liability to cover the period of employment physician [sic] while
working at [ADC], and [ADC] agrees to
waive physician's obligation to reimburse
[ADC] for the expense of moving originally incurred to relocate physician to
Austin at the commencement of this employment agreement.
B. When Facts of Alleged Injury Came Into Existence
Turning to the issue of when the facts underlying
Hertzberg's cause of action came into existence, we conclude that they did so on September 11, 2001, when
ADC notified Hertzberg in a memorandum that his final
day of employment would be September 30, 2001, and
that he was expected to pay for his tail-insurance policy
and reimburse ADC for [*10] his moving expenses. It
was at that point that the facts that allegedly caused him
injury came into existence and authorized him to seek a
judicial remedy. See id.
Specifically, the first alleged breach of the contract
was made clear in the September 11 memo when ADC
stated that it was "informing [Hertzberg] that [his] last
day with ADC [would] coincide with the expiration of
[his] current contract on 9/30/01." Assuming that allowing the contract to expire was the same as terminating the
contract, ADC breached the contract by providing only
nineteen days' notice of its termination rather than the
three months' notice required by the contract.
ADC's second alleged breach of the contract was
also evident in the September 11 memo when ADC
stated that "a physician must be board certified in his/her
specialty in order to become an associate physician at
ADC" and that "[a]s of [that] date, [Hertzberg had] been
unable to provide proof of [his] board certification in
Radiology, which preclude[d] any offer of an associate
contract." Because the contract required ADC to notify
Hertzberg ninety days prior to the end of the employment
agreement of ADC's intent not to advance him to associate status, [*11] ADC allegedly breached the contract
when it notified him on September 11, 2001, only nineteen days prior to the end of the agreement.
The third alleged breach was apparent in the September 11 memo when ADC stated that it expected
Hertzberg "to reimburse ADC for the cost of [his] tail
policy, as well as [his] moving expenses which were paid
by [ADC]." Because the contract provided that ADC
would pay for the tail insurance and moving expenses if
it did not advance Hertzberg to associate status and did
not extend the employment agreement, ADC allegedly
breached the contract when it did not promote him and
did not extend the agreement but still expected him to
pay for his tail insurance and moving expenses.
Because facts authorizing Hertzberg to seek a judicial remedy came into existence on September 11, 2001,
his claims accrued on that date. See id.; Ambulatory Infusion Therapy Specialist, Inc. v. North Am. Adm'rs, Inc.,
262 S.W.3d 107, 119 (Tex. App.--Houston [1st Dist.]
2008, no pet.) (cause of action accrued when plaintiff
received defendant's letter stating that defendant would
pay only $ 3,500 of plaintiff's $ 31,089.20 invoice, thus
denying reimbursement for remainder).
C. Other Arguments [*12] Regarding Accrual Date
Although Hertzberg raises other arguments that his
cause of action did not accrue until November 2001, he
has waived those arguments on appeal by not raising
them in the trial court. Specifically, Hertzberg contends
App. Def. 97
Page 6
2009 Tex. App. LEXIS 7149, *
that this case is similar to three different types of cases,
each of which allegedly supports a determination that his
cause of action did not accrue until November 2001. The
three different types of cases he relies upon include: (1)
those involving insurance claims in which there is no
"outright denial" of a claim and an insurance company
"strings an insured along without denying or paying a
claim;" (2) those involving installment contracts; and (3)
those applying the discovery rule, in which the cause of
action accrues when the plaintiff discovered or should
have discovered facts establishing a cause of action. See
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828
n.2 (Tex. 1990) (insurance claim); Ehrig v. Germania
Farm Mut. Ins. Ass'n, 84 S.W.3d 320, 325 (Tex. App.-Corpus Christi 2002, pet. denied) (insurance claim); F.D.
Stella Prods. Co. v. Scott, 875 S.W.2d 462, 465-66 (Tex.
App.--Austin 1994, no writ) ("installment contract" approach); [*13] Houston Livestock Show & Rodeo, Inc. v.
Hamrick, 125 S.W.3d 555, 569-70 (Tex. App.--Austin
2003, no pet.) (discovery rule). However, there is nothing in the record indicating that Hertzberg raised these
arguments in the trial court, and he has therefore waived
the arguments on appeal. See Tex. R. App. P. 33.1(a)(1);
Aldrich v. State, 104 S.W.3d 890, 895-96 (Tex. Crim.
App. 2003).
Even if he had not waived the arguments, the cases
he cites in support of his arguments are inapplicable to
this case. For example, this case does not involve an insurance claim, and the insurance-claim cases apply only
when an insurance company does not provide an "outright denial" of a claim and "strings along" an insured
without approving or denying the claim. See Murray,
800 S.W.2d at 828 n.2; Ehrig, 84 S.W.3d at 325. Here,
even assuming that ADC was acting in a role similar to
an insurer and that the issue of payment of the tail insurance and moving expenses was akin to an insurance
claim, ADC did not string Hertzberg along regarding its
position on the payment issue. Rather, ADC specifically
stated in its September 11, 2001 memo that it expected
Hertzberg to pay for his tail-insurance policy and moving
[*14] expenses. Regardless of any subsequent demands
for payment Hertzberg may have made, he had sufficient
facts with which to seek a judicial remedy as of the day
he received the memo. See Mid-South Telecomms. Co. v.
Best, 184 S.W.3d 386, 388, 391 (Tex. App.--Austin 2006,
no pet.) (cause of action accrued when defendant defaulted on note, regardless of whether plaintiff still demanded and expected payment after default).
Regarding the installment-contract cases, Hertzberg
cites to only one case, and the case is considerably different from the one before us. See Scott, 875 S.W.2d at
465-66. In Scott, the plaintiff sued the defendant for pastdue monthly lease payments, and the issue was whether a
new cause of action accrued--and thus a new statute of
limitations began running--for each missed payment. See
id. at 466. The case before us does not involve a lease,
nor does it involve multiple payments. Scott is therefore
inapplicable.
The cases involving the discovery-rule exception are
also inapplicable to this case. The Texas Supreme Court
has made it clear that [HN8] the discovery-rule exception
should be applied only where an injury is unlikely to be
discovered within the prescribed limitations [*15] period
despite due diligence. See Via Net v. TIG Ins. Co., 211
S.W.3d 310, 313, 315 (Tex. 2006). The supreme court
further stated that the discovery-rule exception should be
restricted "to exceptional cases" so as "to avoid defeating
the purposes behind the limitations statutes." Id. at 313.
Here, any breach of the contract by ADC was evident in
the September 11, 2001 memorandum. Hertzberg makes
no argument that he could not have discovered his injury
during the four-year limitations period. In fact, he argues
that he discovered the injury in November 2001, when he
claims that he had to pay his insurance premium by the
insurance company's deadline. Further, in the one case to
which Hertzberg cites, Houston Livestock, this court
pointed out that "[a] party seeking to avail itself of the
discovery rule must plead the rule, either in its original
petition or in an amended or supplemental petition in
response to defendant's assertion to the defense as a matter of avoidance." 125 S.W.3d at 570. The record shows
that Hertzberg never pleaded the discovery rule despite
ADC's assertion of the affirmative defense of limitations
in its answer.
Because the cases cited by Hertzberg are inapplicable [*16] to this case, we disregard them.
D. Conclusion Regarding Accrual Date
As previously indicated, any injury suffered by
Hertzberg was known to him on September 11, 2001,
when he received ADC's memo. Thus, his cause of action accrued on that date. Hertzberg did not file suit until
November 21, 2005. Because there is no genuine issue of
material fact that he filed suit more than four years after
his cause of action accrued, we affirm the trial court's
summary judgment.
Attorney's Fees and Post-Judgment Interest
In his second issue, Hertzberg contends that the trial
court erred in granting ADC's requests for attorney's fees
and post-judgment interest and that the amount of attorney's fees granted was unreasonable. [HN9] We review a
trial court's decision to either grant or deny attorney's
fees under an abuse-of-discretion standard, and [HN10]
we review the amount of attorney's fees awarded under a
legal-sufficiency standard. See Ridge Oil Co., Inc. v.
Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004);
Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212
App. Def. 98
Page 7
2009 Tex. App. LEXIS 7149, *
S.W.3d 665, 671 (Tex. App.--Austin 2006, no pet.).
[HN11] A trial court abuses its discretion if it acts without reference to any guiding rules and principles. [*17]
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985). To determine whether a trial court
abused its discretion, we must determine whether the
trial court's action was arbitrary or unreasonable. Id. at
242. [HN12] Because we review the amount of attorney's
fees awarded under a legal-sufficiency review, we must
view the evidence in a light that tends to support the disputed finding and disregard evidence and inferences to
the contrary. Wal-Mart Stores, Inc. v. Canchola, 121
S.W.3d 735, 739 (Tex. 2003). If more than a scintilla of
evidence supports the challenged finding, the legalsufficiency challenge must fail. Id.
Although Hertzberg challenges the trial court's
award of attorney's fees and post-judgment interest, he
does not cite to any legal authority to support reversal of
the trial court's determinations, thus waiving error on the
issue. See [HN13] Tex. R. App. P. 38.1(i) (requiring citation to authority). Even if he had not waived error, we
find nothing in the record to support his assertions. The
trial court's decision to award attorney's fees and postjudgment interest is supported by the contract, which
states:
If the services of an attorney are retained and/or if any action [*18] at law or
in equity is brought to enforce or interpret
the provisions of this Agreement or to collect any monies due hereunder, the prevailing party shall be entitled to reasonable attorney's fees together with interest
thereon at the highest rate provided by
law in addition to any other relief to
which he may be entitled at law or in equity.
A "prevailing party" is a party who successfully
prosecutes the action or successfully defends against it,
prevailing on the main issue, even if not to the extent of
its original contention. See Flagship Hotel, Ltd. v. City of
Galveston, 117 S.W.3d 552, 564 (Tex. App.--Texarkana
2003, pet. denied); Dear v. City of Irving, 902 S.W.2d
731, 739 (Tex. App.--Austin 1995, writ denied). Because
ADC successfully defended against Hertzberg's suit by
obtaining summary judgment on his claims, ADC is the
prevailing party. See Robbins v. Capozzi, 100 S.W.3d 18,
27 (Tex. App.--Tyler 2002, no pet.). Thus, ADC is entitled to "reasonable attorney's fees together with interest
thereon" as provided by the contract. Accordingly, the
trial court's decision to grant ADC's requests for attor-
ney's fees and post-judgment interest was not an abuse of
discretion.
Regarding [*19] the amount of attorney's fees the
trial court awarded, there are several factors a fact finder
should consider in determining the reasonableness of a
fee. 2 Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997). ADC's attorney, Scott
Brutocao, testified at the hearing on attorney's fees as to
several of the Arthur Andersen factors. First, he explained that the case was a standard breach-of-contract
suit that required him and two associates at his firm to
file an answer, perform research, conduct discovery, and
prepare a summary-judgment motion. He also pointed
out that additional research was required beyond that
associated with a standard case because Hertzberg "was
making a novel theory on the statute of limitations." Second, Brutocao testified that the case took him and two
associates at his firm 70.7 hours total, and he supported
his assertion with the billing records of his firm, which
were introduced as an exhibit at the hearing. Third,
Brutocao testified that he was familiar with customary
rates charged by attorneys for similar legal services in
Austin, and he explained that the hourly rate his firm
charged ADC was $ 235 and remained fixed regardless
of [*20] whether he or an associate worked on the case.
He also stated that the hourly rate his firm charged ADC
was less than his standard rate, which was $ 335 an hour.
Fourth, he testified extensively about his own experience
and abilities as well as the experience and abilities of the
two associates who worked on the case, and he offered
his own and the two associates' curriculum vitae as exhibits to support his assertions. Finally, he testified that
the total amount of attorney's fees for the case was $
16,614.50 and that the amount was reasonable and necessary.
2 The factors include:
(1) the time and labor required,
the novelty and difficulty of the
questions involved, and the skill
required to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily
charged in the locality for similar
legal services;
(4) the amount involved and
the results obtained;
App. Def. 99
Page 8
2009 Tex. App. LEXIS 7149, *
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of
the professional relationship with
the client;
(7) the experience, reputation,
and ability of the lawyer or lawyers performing the [*21] services; and
(8) whether the fee is fixed or
contingent on results obtained or
uncertainty of collection before
the legal services have been rendered.
Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex. 1997).
Because there is evidence of several of the eight Arthur Andersen factors supporting the reasonableness of
the award of attorney's fees, we conclude that there is
more than a scintilla of evidence to support the amount
of the award. Accordingly, the trial court did not abuse
its discretion in awarding $ 16,614.50 in attorney's fees
to ADC. See EMC Mortgage Corp. v. Davis, 167 S.W.3d
406, 418-19 (Tex. App.--Austin 2005, pet. denied).
Appellate Attorney's Fees
ADC requests that we award it appellate attorney's
fees as monetary sanctions against Hertzberg for bringing a frivolous appeal. See [HN14] Tex. R. App. P. 45
(authorizing appellate court to award prevailing party
"just damages" upon determination that appeal is frivolous). In determining whether an appeal is frivolous, we
review the record from the appellant's viewpoint and
decide whether the appellant had reasonable grounds to
believe the judgment could be reversed. Smith v. Brown,
51 S.W.3d 376, 381 (Tex. App.--Houston [1st Dist.]
2001, pet. denied). [*22] Whether to grant sanctions for
a frivolous appeal is a matter of discretion that an appellate court exercises with prudence and caution and only
after careful deliberation in truly egregious circumstances. Goss v. Houston Cmty. Newspapers, 252 S.W.3d
652, 657 (Tex. App.--Houston [14th Dist.] 2008, no pet.).
Although we have rejected Hertzberg's arguments on
appeal, we cannot characterize the appeal as objectively
frivolous. Accordingly, we overrule ADC's request.
In the alternative, ADC asks that we remand the case
to the trial court for the award of appellate attorney's
fees. As previously indicated, the contract provides that
the prevailing party in the suit is entitled to recover attorney's fees. However, ADC did not request appellate
attorney's fees in the trial court and has not filed a notice
of appeal on the issue. Accordingly, we must deny
ADC's request. See Tex. R. App. P. 25.1(c) [HN15] ("A
party who seeks to alter the trial court's judgment or
other appealable court order must file a notice of appeal."); In re Lesikar, 285 S.W.3d 577, 586 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (appellee waived
claim to appellate attorney's fees on remand because she
did not request appellate [*23] fees, present evidence to
support fees, or obtain finding or judgment on issue in
trial court) (citing Varner v. Cardenas, 218 S.W.3d 68,
69-70 (Tex. 2007)).
CONCLUSION
Because we find no error in the trial court's determinations, we affirm the trial court's summary judgment.
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: September 11, 2009
App. Def. 100
Page 1
Caution
As of: Oct 27, 2011
INTERCONTINENTAL GROUP PARTNERSHIP, PETITIONER, v. KB HOME
LONE STAR L.P., RESPONDENT
NO. 07-0815
SUPREME COURT OF TEXAS
295 S.W.3d 650; 2009 Tex. LEXIS 631; 52 Tex. Sup. J. 1204
March 12, 2009, Argued
August 28, 2009, Opinion Delivered
ON PETITION FOR REVIEW FROM THE COURT
OF APPEALS FOR THE THIRTEENTH DISTRICT OF
TEXAS.
Intercontinental Group P'ship v. KB Home Lone Star,
LP, 295 S.W.3d 668, 2007 Tex. App. LEXIS 6746 (Tex.
App. Corpus Christi, Aug. 23, 2007)
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant real estate
developer challenged a decision of the Court of Appeals
for the 13th District of Texas that affirmed a trial court
judgment awarded attorney fees to plaintiff builder.
OVERVIEW: The builder and developer entered into a
contract for the development of a subdivision. Among
the contract provisions was one that provided for an
award of attorney fees to the prevailing parties should
litigation ensue. When the developer began selling lots in
the subdivision to other buyers, the builder filed suit. The
jury found that the developer breached the contract but
awarded no damages to the builder but did award attorney fees. The trial court entered judgment in accordance
with the jury's verdict. On review of the appellate court
decision affirming the trial court judgment, the court held
that to prevail, a party must obtain actual and meaningful
relief, something that materially altered the parties' relationship. That is, to prevail, a plaintiff must prove compensable injury and secure an enforceable judgment in
the form of damages or equitable relief. Because the
builder secured neither, it was not entitled to an award of
attorney fees.
OUTCOME: The judgment of the court of appeals was
reversed, and a take-nothing judgment was entered.
CORE TERMS: attorney's fees, prevailing party, declare, prevail, money damages, prevailed, declaratory
judgment, main issue, counterclaim, breach-of-contract,
per curiam, contract claim, victory, zero, action to enforce, hereunder, breach of contract, specific performance, attorney's-fees, prevailing, equitable, post-trial,
nominal damages, take-nothing, declaratory, jury verdict,
legal relationship, written contract, breached, monetary
Civil Procedure > Judgments > Entry of Judgments >
Enforcement & Execution > General Overview
[HN1] To prevail, a claimant must obtain actual and
meaningful relief, something that materially alters the
parties' legal relationship. That is, a plaintiff must prove
compensable injury and secure an enforceable judgment
in the form of damages or equitable relief.
Attorney Expenses & Fees > American Rule
App. Def. 101
Page 2
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
[HN2] Under the American Rule, litigants' attorney fees
are recoverable only if authorized by statute or by a contract between the parties.
Civil Procedure > Judgments > Entry of Judgments >
Enforcement & Execution > General Overview
[HN3] To qualify as a prevailing party, a plaintiff must
obtain at least some relief on the merits of his claim. The
plaintiff must obtain an enforceable judgment against the
defendant from whom fees are sought, or comparable
relief through a consent decree or settlement. Whatever
relief the plaintiff secures must directly benefit him at the
time of the judgment or settlement. Otherwise the judgment or settlement cannot be said to affect the behavior
of the defendant toward the plaintiff. Only under these
circumstances can civil rights litigation effect the material alteration of the legal relationship of the parties and
thereby transform the plaintiff into a prevailing party. In
short, a plaintiff prevails when actual relief on the merits
of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior
in a way that directly benefits the plaintiff.
Civil Procedure > Remedies > Damages > Compensatory Damages
[HN4] A judgment for damages in any amount, whether
compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant
to pay an amount of money he otherwise would not pay.
COUNSEL: For Intercontinental Group Partnership,
PETITIONER: Edward C. Snyder III, Jesse R. Castillo,
Castillo Snyder, P.C., San Antonio, TX.
For KB Home Lone Star, RESPONDENT: Diann M.
Bartek, Renee Forinash McElhaney, Natalie L. Hall, Cox
Smith Matthews Incorporated, San Antonio, TX.
JUDGES: JUSTICE WILLETT delivered the opinion of
the Court, in which CHIEF JUSTICE JEFFERSON,
JUSTICE HECHT, JUSTICE GREEN, and JUSTICE
JOHNSON joined. JUSTICE BRISTER filed a dissenting opinion, in which JUSTICE O'NEILL, JUSTICE
WAINWRIGHT and JUSTICE MEDINA joined. Don R.
Willett, Justice.
OPINION BY: Don R. Willett
OPINION
[*651]
This breach-of-contract case poses a
straightforward question: What does "prevailing party"
mean? We have construed this phrase in a discretionary
fee-award [*652] statute 1 but not in a mandatory fee-
award contract. Specifically, when a contract mandates
attorney's fees to a "prevailing party," a term undefined
in the contract, has a party "prevailed" if the jury finds
the other side violated the contract [**2] but awards no
money damages? We agree with the United States Supreme Court, which holds that [HN1] to prevail, a claimant must obtain actual and meaningful relief, something
that materially alters the parties' legal relationship. 2 That
is, a plaintiff must prove compensable injury and secure
an enforceable judgment in the form of damages or equitable relief. The plaintiff here secured neither. We thus
reach the same conclusion as in another breach-ofcontract case decided today: "a client must gain something before attorney's fees can be awarded." 3 We reverse the court of appeals' judgment and render a takenothing judgment.
1 Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390
(Tex. 1997).
2 Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.
Ct. 566, 121 L. Ed. 2d 494 (1992).
3 MBM Fin. Corp. v. Woodlands Operating Co.,
292 S.W.3d 660, 666, 2009 Tex. LEXIS 634 (Tex.
2009) (construing the attorney's-fees provision in
section 38.001 of the Texas Civil Practice &
Remedies Code, which specifies that attorney's
fees must be "in addition to the amount of a valid
claim and costs").
I. Background
KB Home Lone Star L.P. (KB Home), a national
homebuilder, contracted with Intercontinental Group
Partnership (Intercontinental), [**3] a real estate developer, to develop lots in a McAllen subdivision known as
Santa Clara and sell them to KB Home. The contract
provided:
Attorney's fees. If either party named
herein brings an action to enforce the
terms of this Contract or to declare rights
hereunder, the prevailing party in any
such action, on trial or appeal, shall be entitled to his reasonable attorney's fees to
be paid by losing party as fixed by the
court.
"Prevailing party" was not defined.
Intercontinental began selling Santa Clara lots to
other buyers, and KB Home sued for breach of contract
(among other theories) and sought specific performance,
damages, injunctive relief, and attorney's fees. 4 KB
Home did not seek a declaratory judgment under the
contract. At trial, KB Home sought only one type of ac-
App. Def. 102
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295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
tual damages: lost profits due to Intercontinental's alleged breach. Intercontinental counterclaimed, asserting
that KB Home failed to honor an oral agreement to buy
Santa Clara at a below-market price in exchange for an
exclusive partner arrangement for future property acquisitions.
4 Intercontinental had sold a majority of the
Santa Clara lots to other developers, so KB Home
dropped its specific performance and [**4] injunctive relief claims before trial and sought only
lost profits.
The jury found that Intercontinental breached the
written contract but answered "0" on damages, though it
did award KB Home $ 66,000 in attorney's fees. 5 The
jury rejected Intercontinental's oral-agreement claim and
consequently did not answer the conditional question
about Intercontinental's attorney's fees related to that
claim. Both parties moved for judgment, claiming attorney's fees as the "prevailing party." The trial court sided
with KB Home and signed a judgment in [*653] its
favor for $ 66,000, concluding that KB Home "should
recover its damages against [Intercontinental] as found
by the jury . . . ." The court of appeals affirmed. 6
5 Specifically, the jury was asked: "Did Intercontinental Group Partnership fail to comply with
the Santa Clara Lot Contract?" and separately
"What sum of money, if any, if paid now in cash,
would fairly and reasonably compensate KB
Home Lone Star, L.P. for its damages, if any, that
resulted from such failure to comply with the
Santa Clara Lot Contract?"
6
S.W.3d , .
II. Is KB Home the Prevailing Party
[HN2] Under the American Rule, litigants' attorney's
fees are recoverable only if [**5] authorized by statute
or by a contract between the parties. 7
7 MBM Fin. Corp. v. Woodlands Operating Co.,
292 S.W.3d 660, 669, 2009 Tex. LEXIS 634
("Texas has long followed the 'American Rule'
prohibiting fee awards unless specifically provided by contract or statute." (citing Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11
(Tex. 2006) ("Absent a contract or statute, trial
courts do not have inherent authority to require a
losing party to pay the prevailing party's fees."))).
A. Applicability of Chapter 38 to KB Home's Breach
Claim
We first address the applicability of the discretionary attorney's-fees provision in Chapter 38 of the Civil
Practice and Remedies Code. 8 As seen here, the statutory and contract provisions are similar in general but
dissimilar in particular:
________________________________________________________________________________
The Contract
Chapter 38
If either party named herein brings
A person may recover reasonable
an action to enforce the terms
attorney's fees from an individual
of this Contract or to declare rights
or corporation, in addition to the
hereunder, the prevailing party . . .
amount of a valid claim and costs,
shall be entitled to his reasonable
if the claim is for . . . an oral or
attorney's fees to be paid by losing
written contract.
party as fixed by the court.
________________________________________________________________________________
8 TEX. CIV. PRAC. & REM. CODE § 38.001.
We [**6] held in Green International, Inc. v. Solis
that before a party is entitled to fees under section
38.001, that "party must (1) prevail on a cause of action
for which attorney's fees are recoverable, and (2) recover
damages." 9 If Green and Chapter 38 applied to this case,
KB Home could not recover attorney's fees since it did
not recover any damages. But Green, while instructive, is
not controlling, nor is Chapter 38.
Parties are free to contract for a fee-recovery standard either looser or stricter than Chapter 38's, and they
have done so here. As KB Home points out, Chapter 38
permits recovery of attorney's fees "in addition to the
amount of a valid claim," while nothing in the contract
expressly requires that a party receive any "amount" of
damages. The triggering event under the contract is that a
party prevail in an action "to enforce the terms of this
Contract or to declare rights hereunder . . . ." True
enough, but the question remains: what does "prevailing
party" mean under the contract?
9 951 S.W.2d 384, 390 (Tex. 1997).
App. Def. 103
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295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
B. Attorney's Fees Under the Contract
The contract leaves "prevailing party" undefined, so
we presume the parties intended the term's ordinary
meaning. 10 We have [**7] found the United States Supreme Court's analysis helpful in this area. 11 In Hewitt v.
Helms, the Court was faced with the question of whether
a plaintiff who obtained a favorable judicial pronouncement in the course of litigation, yet suffered a final
judgment against him, could be a prevailing party. 12
Helms had sued [*654] several prison officials alleging
a violation of his constitutional rights. 13 The district
court granted summary judgment against him on the
merits of his claim, but the court of appeals reversed,
holding that he had a valid constitutional claim. 14 On
remand, the district court still rendered summary judgment against him, finding that the defendants were
shielded by qualified immunity. 15 Helms then sought his
attorney's fees, claiming that the court of appeals' decision made him the prevailing party. 16 The Supreme
Court disagreed, saying "[r]espect for ordinary language
requires that a plaintiff receive at least some relief on the
merits of his claim before he can be said to prevail." 17
And since Helms did not obtain a damages award, injunctive or declaratory relief, or a consent decree or settlement in his favor, he was not a prevailing party. 18 Five
years later [**8] in Farrar v. Hobby, a federal civilrights case, the Court elaborated:
[T]o [HN3] qualify as a prevailing
party, a . . . plaintiff must obtain at least
some relief on the merits of his claim. The
plaintiff must obtain an enforceable
judgment against the defendant from
whom fees are sought, or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures
must directly benefit him at the time of
the judgment or settlement. Otherwise the
judgment or settlement cannot be said to
"affect the behavior of the defendant toward the plaintiff." Only under these circumstances can civil rights litigation effect "the material alteration of the legal relationship of the parties" and thereby
transform the plaintiff into a prevailing
party. In short, a plaintiff "prevails" when
actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly
benefits the plaintiff. 19
10 See Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 662 (Tex. 2005).
11 See, e.g., Dallas v. Wiland, 216 S.W.3d 344,
358 n.61 (Tex. 2007); Sw. Bell Mobile Sys., Inc.
v. Franco, 971 S.W.2d 52, 55-56 (Tex. 1998);
[**9] Grounds v. Tolar Indep. Sch. Dist., 856
S.W.2d 417, 423 (Tex. 1993).
12 482 U.S. 755, 757, 107 S. Ct. 2672, 96 L. Ed.
2d 654 (1987).
13 Id.
14 Id. at 757-58.
15 Id. at 758.
16 Id. at 759.
17 Id. at 760.
18 Id.
19 506 U.S. 103, 111-12, 113 S. Ct. 566, 121 L.
Ed. 2d 494 (1992) (reviewing attorney's fees
awarded pursuant to 42 U.S.C. § 1988) (citations
omitted).
The Court concluded that the plaintiff "prevailed" in
Farrar because he was awarded one dollar in damages:
[HN4] "A judgment for damages in any amount, whether
compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant
to pay an amount of money he otherwise would not pay."
20
Farrar did not speak to whether a plaintiff awarded
zero damages can claim prevailing-party status, but under the Farrar Court's analysis, a plaintiff who receives
no judgment for damages or other relief has not prevailed.
20 Id. at 113-14 (noting that "the prevailing
party inquiry does not turn on the magnitude of
the relief obtained").
The trial-court judgment in today's case recited the
jury's finding that "[t]he sum of zero dollars would fairly
and reasonably compensate KB" for its damages, if any,
resulting from Intercontinental's [**10] breach, and that
"[t]he sum of sixty-six thousand dollars and zero cents"
constituted a reasonable fee for the necessary services of
KB Home's attorneys. The judgment continued, however:
It appearing to the Court that, based
upon the verdict of the jury, KB Home
Lone Star should recover its damages
against the International Group Partnership [*655] as found by the jury, and the
Court so finds.
IT IS ACCORDINGLY ORDERED,
ADJUDGED AND DECREED that KB
Home Lone Star have and recover from
the International Group Partnership judg-
App. Def. 104
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295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
ment for the sum of sixty-six thousand
dollars and zero cents ($ 66,000.00). 21
21 (Emphasis added).
The court erred in making that award. The jury answered "0" on damages, and KB Home sought no other
type of relief, so the trial court should have rendered a
take-nothing judgment against KB Home on its contract
claim. 22
22 Cf. State Farm Life Ins. Co. v. Beaston, 907
S.W.2d 430, 437-38 (Tex. 1995) (rendering takenothing judgment against party who recovered no
damages on claim alleging violation of Insurance
Code article 21.21, even assuming arguendo the
party prevailed on the article 21.21 claim).
It seems beyond serious dispute that KB Home
achieved no genuine success on [**11] its contract
claim. Whether a party prevails turns on whether the
party prevails upon the court to award it something, either monetary or equitable. KB Home got nothing except
a jury finding that Intercontinental violated the contract.
It recovered no damages; it secured no declaratory or
injunctive relief; it obtained no consent decree or settlement in its favor; it received nothing of value of any
kind, certainly none of the relief sought in its petition. 23
No misconduct was punished or deterred, no lessons
taught. KB Home sought over $ 1 million in damages,
but instead left the courthouse empty-handed: "That is
not the stuff of which legal victories are made." 24 Nor do
we perceive any manner in which the outcome materially
altered the legal relationship between KB Home and Intercontinental. 25 Before the lawsuit, Intercontinental was
selling lots that were promised to KB Home. After the
lawsuit, Intercontinental had sold the promised lots and
was not required to pay a single dollar in damages or do
anything else it otherwise would not have done.
23 See Helms, 482 U.S. at 760.
24 Id.
25 See Farrar, 506 U.S. at 111-12.
As judgment should have been rendered in Intercontinental's favor, [**12] it is untenable to say that KB
Home prevailed and should recover attorney's fees. A
stand-alone finding on breach confers no benefit whatsoever. 26 A zero on damages [*656] necessarily zeroes
out "prevailing party" status for KB Home. 27
26 See id. at 111 (to be a prevailing party,
"[w]hatever relief the plaintiff secures must directly benefit him . . . ."). It is difficult to con-
clude a breach-of-contract plaintiff has prevailed
when the jury says the plaintiff was wholly uninjured and denies all requested relief. As the dissent recognizes, money damages are essential in
contract claims seeking money damages (though
not for contract claims seeking something else).
S.W.3d , . Every single court of appeals has
likewise held that one of the required elements in
a breach-of-contract suit seeking money damages
is that the plaintiff was in fact damaged by the
breach. Wright v. Christian & Smith, 950 S.W.2d
411, 412 (Tex. App.--Houston [1st Dist.] 1997,
no pet.); Fieldtech Avionics & Instruments, Inc. v.
Component Control.com, Inc., 262 S.W.3d 813,
825(Tex. App.--Fort Worth 2008, no pet.);
Roundville Partners, L.L.C. v. Jones, 118 S.W.3d
73, 82 (Tex. App.--Austin 2003, pet. denied);
Killeen v. Lighthouse Elec. Contractors, L.P.,
248 S.W.3d 343, 349 (Tex. App.--San Antonio
2007, pet. denied); [**13] Reynolds v. Nagely,
262 S.W.3d 521, 527 (Tex. App.--Dallas 2008,
pet. denied); West v. Brenntag Sw., Inc., 168
S.W.3d 327, 337 (Tex. App.--Texarkana 2005,
pet. denied); Domingo v. Mitchell, 257 S.W.3d
34, 39 (Tex. App.--Amarillo 2008, pet. denied);
Hovorka v. Cmty. Health Sys., Inc., 262 S.W.3d
503, 508-09 (Tex. App.--El Paso 2008, no pet.);
Sullivan v. Smith, 110 S.W.3d 545, 546 (Tex.
App.--Beaumont 2003, no pet.); Bank of Am.,
N.A. v. Hubler, 211 S.W.3d 859, 864 (Tex. App.-Waco 2006, pet. granted, judgm't vacated
w.r.m.); United Plaza-Midland, L.L.C. v. First
Serv. Air Conditioning Contractors, Inc., No. 1105-00382-CV, 2007 Tex. App. LEXIS 10027,
2007 WL 4536525, at *7 (Tex. App.--Eastland
Dec. 20, 2007, pet. denied) (mem. op.); Lake v.
Premier Transp., 246 S.W.3d 167, 173 (Tex.
App.--Tyler 2008, no pet.); Pegasus Energy
Group v. Cheyenne Petroleum, 3 S.W.3d 112, 127
(Tex. App.--Corpus Christi 1999, pet. denied);
West v. Triple B Servs., L.L.P., 264 S.W.3d 440,
446 (Tex. App.--Houston [14th Dist.] 2008, no
pet.).
27 We said in a 1998 decision discussing Farrar
that two plaintiffs who proved retaliatory discharge under Texas law "prevailed" even though
the jury awarded no money damages. [**14] Sw.
Bell Mobile Sys. v. Franco, 971 S.W.2d 52, 56
(Tex. 1998) (per curiam). Unlike today's case,
however, one of the plaintiffs in Franco received
equitable relief: reinstatement. As to that plaintiff, Franco correctly decided that he was a prevailing party. However, like KB Home in this
case, the other Franco plaintiff received no relief
whatsoever. As we noted in Franco, under the
App. Def. 105
Page 6
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
United States Supreme Court's reasoning in
Farrar, "'the only reasonable fee'" when a plaintiff fails to prove damages is usually "'no fee at
all.'" Id. at 55-56 (quoting Farrar, 506 U.S. at
115). Also, our 1998 Franco decision predated
the United States Supreme Court's 2001 decision
in Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health & Human Services, 532 U.S. 598, 603, 121 S. Ct. 1835, 149 L.
Ed. 2d 855 (2001), which refined its earlier
analysis and basically held: "no money judgment,
no fees." Accordingly, we disagree with Franco
that a plaintiff who recovers no money and receives no equitable relief can be a prevailing
party. Instead, a plaintiff must receive affirmative
judicial relief to be considered a prevailing party.
C. Declaration of Rights
KB Home argues that it should [**15] nonetheless
recover attorney's fees because it sued to "declare rights"
under the contract and prevailed by obtaining a jury verdict that Intercontinental breached the contract. We disagree. In Southwestern Bell Mobile Systems v. Franco
we noted that "[i]t is the judgment, not the verdict, that
we must consider in determining whether attorney's fees
are proper." 28 The United States Supreme Court has
likewise reasoned that the judgment is critical to the prevailing-party determination. 29 In this case, the trial court
should have rendered a take-nothing judgment on KB
Home's contract claim. Neither law nor logic favors a
rule that bestows "prevailing party" status upon a plaintiff who requests $ 1 million for actual injury but pockets
nothing except a jury finding of non-injurious breach; to
prevail in a suit that seeks only actual damages -- compensation for provable economic harm--there must be a
showing that the plaintiff was actually harmed, not
merely wronged.
28 971 S.W.2d at 56.
29 Buckhannon, 532 U.S. at 603-04.
If KB Home had brought its breach-of-contract case
and obtained favorable answers on the same "failure to
comply" questions, but the jury also found that an affirmative [**16] defense barred KB Home's claim, a
take-nothing judgment in favor of Intercontinental would
have been rendered. There would be no dispute that KB
Home had not prevailed, despite jury findings that Intercontinental breached. No rational distinction exists between that scenario and the one before us. In both, the
end result is a take-nothing judgment with no meaningful
judicial relief for KB Home. Its only "relief" in either
case is the gratification that comes with persuading a jury
that Intercontinental behaved badly. But vindication is
not always victory. However satisfying as a matter of
principle, "purely technical or de minimis" success af-
fords no actual relief on the merits that would materially
alter KB Home's [*657] relationship with Intercontinental. 30 Accordingly, KB Home, while perhaps a "nominal
winner" 31 in convincing the jury that it was "wronged," 32
cannot be deemed a "prevailing party" in any nonPyrrhic sense. 33
30 See Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S. Ct.
1486, 103 L. Ed. 2d 866 ("Where the plaintiff's
success on a legal claim can be characterized as
purely technical or de minimis, a district court
would be justified in concluding [**17] that" attorney's fees should be denied.).
31 ABRAHAM LINCOLN, NOTES FOR LAW
LECTURE (July 1, 1850), reprinted in 2 COLLECTED WORKS OF ABRAHAM LINCOLN
142 (John G. Nicolay & John Hay eds. 1894)
("Discourage litigation. Persuade your neighbors
to compromise whenever you can. Point out to
them how the nominal winner is often a real loser
-- in fees, expenses, and waste of time.").
32 But see Zapata Hermanos Sucesores, S.A. v.
Hearthside Baking Co., 313 F.3d 385, 389 (7th
Cir. 2002) (Posner, J.) ("[A] breach of contract is
not considered wrongful activity in the sense that
a tort or a crime is wrongful. When we delve for
reasons, we encounter Holmes's argument that
practically speaking the duty created by a contract is just to perform or pay damages . . . .")
(citing OLIVER WENDELL HOLMES, JR.,
THE COMMON LAW 300-02 (1881) and Oliver
W. Holmes, The Path of the Law, 10 Harv. L.
Rev. 457, 462 (1897)).
33 See Goland v. Cent. Intelligence Agency, 607
F.2d 339, 356, 197 U.S. App. D.C. 25 (D.C. Cir.
1978) (declining to define "substantially prevail"
in the Freedom of Information Act but doubting
"that plaintiffs could be said to have 'substantially
prevailed' if they, like Pyrrhus, have won a battle
[**18] but lost the war."). See also Farrar v.
Hobby, 506 U.S. 103, 117, 119, 113 S. Ct. 566,
121 L. Ed. 2d 494 (1992) (O'Connor, J., concurring) (noting that a plaintiff who achieves a
purely technical victory, something Justice
O'Connor labels "[c]himerical accomplishments,"
has in reality "failed to achieve victory at all, or
has obtained only a pyrrhic victory for which the
reasonable fee is zero.").
III. Is Intercontinental the Prevailing Party
If KB Home "lost" by receiving no damages does
that mean Intercontinental "won" by remitting no damages? We cannot reach this question if it is not properly
presented, and it is not. On the record before us, 34 it is
App. Def. 106
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295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
undisputed that Intercontinental neither preserved the
issue nor presented any evidence (either before, during,
or after trial) regarding its attorney's fees for defending
KB Home's breach-of-contract claim. 35 This failure,
along with others discussed below, waives any right to
recovery. 36
34 In this Court, both the clerk's and reporter's
records are partial.
35 As its briefing makes clear, the only evidence
Intercontinental introduced on attorney's fees, and
the only jury question it submitted on attorney's
fees, concerned "its separate [**19] counterclaim for breach of an oral agreement by Plaintiff" (emphasis in original), not its defense of KB
Home's breach-of-contract claim. Intercontinental
concedes that since it lost on that affirmative
claim, "the jury rightfully denied Defendant's request for attorneys fees on that claim, and Defendant does not complain about that finding."
36 See Bocquet v. Herring, 972 S.W.2d 19, 21
(Tex. 1998) (noting that reasonableness and necessity of fees are "question[s] of fact for the
jury's determination'") (quoting Trevino v. Am.
Nat'l Ins. Co., 140 Tex. 500, 168 S.W.2d 656, 660
(Tex. 1943)).
Intercontinental contends that the phrase "fixed by
the court" in the contract means the trial judge, not the
jury, decides the proper measure of attorney's fees after
trial ends, thus "there was no need for Defendant to have
submitted a question on attorneys fees." Reading "fixed
by the court" to mean "fixed by the judge" is a straightforward construction. 37 But a contract's [*658] overriding purpose is to capture the parties' intent, meaning we
must construe it in light of how the parties meant to construe it. In this case, the parties' trial conduct is itself
instructive.
37 Somewhat analogous to this contract [**20]
provision is the attorney's-fees provision in the
Texas Declaratory Judgment Act (DJA): "[T]he
court may award costs and reasonable and necessary attorney's fees as are equitable and just."
TEX. CIV. PRAC. & REM. CODE § 37.009. One
court of appeals has recently noted that, "[o]n the
face of this provision, it would appear that the
trial court, not the jury, determines the amount of
attorneys' fees . . . ." Ogu v. C.I.A. Servs. Inc., No.
01-07-00933-CV, 2009 Tex. App. LEXIS 78, 2009
WL 41462, at *3 (Tex. App.--Houston [1st Dist.]
Jan. 8, 2009, no pet.) (mem. op.). But, the court
continued, "the amount of the attorneys' fees is a
question of fact for the jury to decide." Id. (citing
City of Garland v. Dallas Morning News, 22
S.W.3d 351, 367 (Tex. 2000)). We express no
view on the matter.
In this case, KB Home submitted the attorney's-fees
issue, like other fact issues, to the jury, not to the court,
and the record contains no indication that Intercontinental objected. 38 Intercontinental's lone pleading requesting
attorney's fees is its original counterclaim, where it asserts Chapter 38, not the written contract, as a basis for
recovering fees related to its oral-contract counterclaim.
[**21] The one time that Intercontinental mentioned fees
spent defending KB Home's written-contract claim came
during a post-trial hearing for entry of judgment when
Intercontinental argued, "If they're not the prevailing
party, then we successfully defended. And . . . we're entitled to attorney's fees. And I'm prepared to present evidence today to that effect." The trial court did not respond, and Intercontinental neither pressed the issue nor
made any offer of proof. The record contains no mention
of a jury-charge conference or any pretrial conference,
much less one indicating that the manner of setting attorney's fees was in question. Intercontinental never argued
the contract was ambiguous. Moreover, there is no indication that Intercontinental asked the trial court to take
judicial notice of trial testimony concerning its attorney's
fees, 39 or that Intercontinental offered any fees-related
testimony in the post-trial hearing.
38 In Texas courts, the reasonableness of attorney's fees is normally "a fact issue for the jury."
Scott A. Brister, Proof of Attorney's Fees in
Texas, 24 ST. MARY'S L.J. 313, 349 (1993)
("Texas law treats attorney's fees as a fact issue
for the jury rather than [**22] as a collateral
matter usually determined by the court after the
trial has been concluded and the loser determined."). Obviously, parties can contract otherwise if they wish.
39 TEX. CIV. PRAC. & REM. CODE § 38.004
("The court may take judicial notice of the usual
and customary attorney's fees and of the contents
of the case file without receiving further evidence
in: (1) a proceeding before the court; or (2) a jury
case in which the amount of attorney's fees is
submitted to the court by agreement.").
Both KB Home as plaintiff on its written-contract
claim and Intercontinental as counter-plaintiff on its oralcontract claim submitted an attorney's fees question on
their affirmative claims, apparently because they understood that the jury would hear evidence and decide what
fee award, if any, was proper. Thus, the parties, given
how they and the trial court actually tried the case, interpreted "fixed by the court" to mean that fees in this case
would be determined by a court proceeding (for example,
a court judgment effectuating the jury's verdict). This
App. Def. 107
Page 8
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
reading is not unreasonable. The contract does not reserve fees specifically to the trial judge, but to the court,
and both parties submitted [**23] all fact questions to
the jury. In short, any reading of "fixed by the court"
must be informed by the record and by how the parties
chose to present fees to the jury on their respective
claims.
In any case, even assuming the written contract reserved attorney's fees exclusively [*659] to the judge
and not the jury, Intercontinental has certainly waived
that argument and its rights to recover fees under the
contract. Intercontinental did not plead for attorney's fees
under the contract, and never sought to amend its pleadings to do so. 40 Nor, apparently, did Intercontinental ever
object, either before the case went to the jury or posttrial, that KB Home's jury question on attorney's fees was
immaterial because the contract left that issue to the
judge. As noted above, Intercontinental first raised its
"fixed by the court" argument during a post-trial hearing
for entry of judgment, after the case (including Intercontinental's jury request for fees on the oral contract) had
been fully tried to the jury. Nothing indicates that Intercontinental made the trial court aware of its position before the jury charge was submitted or raised any issue
about the contract's meaning as to attorney's fees. [**24]
Nor did Intercontinental offer any evidence when it made
its oral, post-trial request that the trial court award it fees
under the contract.
40 TEX. R. CIV. P. 301 (providing that the
court's judgment shall conform to the pleadings).
Given that both parties tried questions of breach and
attorney's fees to the jury, Intercontinental cannot be
excused for failing to submit a jury question on attorney's
fees incurred in defending KB Home's lawsuit on the
written contract, or otherwise preserving the issue for
appellate review. 41 The issue of whether a breaching-butnonpaying defendant can be a "prevailing party" under
an attorney's-fees provision like this is interesting legally, but not before us procedurally. 42
41 TEX. R. CIV. P. 279 ("Upon appeal all independent grounds of recovery or of defense not
conclusively established under the evidence and
no element of which is submitted or requested are
waived."); cf. Wilz v. Flournoy, 228 S.W.3d 674,
676-77 (Tex. 2007) (per curiam); Hunt Constr.
Co. v. Cavazos, 689 S.W.2d 211, 212 (Tex. 1985)
(per curiam).
42 Some might argue that not every lawsuit
produces a winner (even cases that go to verdict);
the parties could battle to what amounts to
[**25] a draw, pay their own fees and expenses,
and go home. Here, a jury finds there was breach
but not injurious breach; the wronged plaintiff
gets nothing and the wrongdoing defendant gives
nothing. If "receiving no damages" means the
plaintiff did not prevail, does "remitting no damages" necessarily mean the breaching defendant
prevailed? When defining litigation success,
some might argue that while relief is required for
plaintiffs to prevail, a finding of "no breach" is
required for defendants -- that is, a desired finding on breach is insufficient for plaintiffs but indispensable for defendants.
IV. Response to the Dissent
The dissent accuses the Court of ignoring the contract's language in order to reach an easy-to-apply answer. Nothing could be further from the truth. Since the
contract leaves "prevailing party" undefined, we must do
our best to effectuate the parties' intent. We believe the
most sensible interpretation is that a plaintiff prevails by
receiving tangible relief on the merits.
Despite what the dissent contends, the Court is not
saying a plaintiff must recover a money judgment in
every breach-of-contract action. Quite the opposite. The
dissent cites a variety of situations [**26] where we
agree the plaintiff would "prevail": when the plaintiff
obtains rescission of the contract, specific performance,
an injunction, or a declaratory judgment. Today's decision is not grounded on the fact that KB Home received
no money damages, but rather on the fact that KB Home
received nothing at all. 43
43 Citing cases from 1917 and earlier, the dissent also argues that KB is the prevailing party
because it is entitled to nominal damages.
S.W.3d , . Nothing in the record shows that
KB Home requested nominal damages in the trial
court or that it appealed any non-award of nominal damages, so that scenario is simply not before
us today. More to the point, as the Court makes
clear in another case decided today, the modern
Texas rule is that "nominal damages are not
available when the harm is entirely economic and
subject to proof (as opposed to non-economic
harm to civil or property rights)." MBM Fin.
Corp. v. Woodlands Operating Co., 292 S.W.3d
660, 665, 2009 Tex. LEXIS 634 (Tex. 2009). KB
Home asked the jury to award damages to remedy an "entirely economic" harm that was "subject to proof": lost profits.
[*660] The reason we focus on money damages is
because KB Home focused [**27] on money damages.
Had KB Home pursued nominal damages, rescission,
specific performance, injunctive relief, or declaratory
relief, that would be another case. 44 But since KB
App. Def. 108
Page 9
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
Home's sole goal at trial was actual damages, it cannot
declare victory without recovering any, a point the dissent seems to concede: "Money damages may be indispensable in contract claims seeking money damages. . . ."
45
This is exactly such a claim.
44 To this end, the dissent is mistaken in saying
we are requiring parties to wait until they are
damaged in order to seek a declaration of their respective rights.
45
S.W.3d at .
The jury's verdict delivered KB Home a stand-alone
finding on breach, but a breach-of-contract plaintiff who
seeks nothing beyond economic damages cannot receive
a judgment based on breach alone. 46 In CU Lloyd's of
Texas v. Feldman, the court of appeals granted the plaintiff a partial summary judgment on liability and rendered
judgment for him. 47 We reversed, holding:
When the relief sought is a declaratory
judgment, an appellate court may properly
render judgment on liability alone. In this
case, however, Feldman sought no declaratory relief and no evidence of damages was submitted [**28] or considered.
. . . Thus, the court of appeals erred in
rendering judgment for Feldman. 48
Feldman was a summary-judgment case (where the
plaintiff submitted no evidence of damages), and today's
case arises in a jury-verdict context (where the plaintiff
submitted evidence of damages that the jury rejected),
but the common thread is plain: Absent tangible relief,
either monetary or equitable, a judgment on liability
alone is improper. Where a party seeks only damages, as
here, damages are a precondition to "prevailing."
46 See CU Lloyd's of Tex. v. Feldman, 977
S.W.2d 568, 568 (Tex. 1998) (per curiam).
47 Id. at 569.
48 Id. (internal citations omitted).
It is unconvincing to construe KB Home's suit as
one seeking declaratory relief. The DJA, like the contract, covers an action "to declare rights," 49 and as explained above, authorizes an award of attorney's fees. A
declaratory judgment, by its nature, is forward looking; it
is designed to resolve a controversy and prevent future
damages. 50 It affects a party's behavior or alters the parties' legal relationship on a going-forward basis. Here,
however, KB Home's suit was decidedly focused on the
past, seeking backward-looking money damages [**29]
for prior breaches of contract. The dissent is right that
"[a]n action to 'declare rights' is not an action [*661] for
money damages," 51 but this case was never the former
and always the latter. KB Home could have brought a
declaratory-judgment action and "prevailed" (and thus
recovered attorney's fees) had the trial court rendered
judgment on liability. 52 It chose not to, opting instead to
seek actual damages from the jury. The attorney's-fees
provision does not require a monetary recovery in every
case, but KB Home made it necessary in this case by
demanding only monetary, not declaratory, relief.
49 TEX. CIV. PRAC. & REM. CODE § 37.003.
50
See Bonham State Bank v. Beadle, 907
S.W.2d 465, 467 (Tex. 1995) ("A declaratory
judgment is appropriate only if a justiciable controversy exists as to the rights and status of the
parties and the controversy will be resolved by
the declaration sought.").
51
S.W.3d , .
52 CU Lloyd's of Tex. v. Feldman, 977 S.W.2d
568, 569 (Tex. 1998) ("When the relief sought is
a declaratory judgment, an appellate court may
properly render judgment on liability alone.").
The dissent contends the judgment declares the parties' rights, but the part of the judgment [**30] the dissent quotes from merely incorporates the jury verdict.
KB Home's petition sought jury findings on breach,
damages and attorney's fees. Taken at face value, the
lawsuit asks the jury to "enforce the terms of this Contract"; it does not ask the court to declare rights. Intercontinental's attorney noted as much at a post-trial hearing, stating that "an action to enforce a contractual provision" is "exactly what we're dealing with here." There are
cases where parties who disagree over a contract's meaning have asked the courts to declare their respective
rights, 53 but these cases are typically brought as declaratory-judgment actions. One exception is Feldman, which
strengthens our decision today as illustrated in Feldman's
opening paragraph:
In this insurance case, we consider
whether a court of appeals may properly
render judgment on a party's liability for
breach of contract without evidence of
damages and when no declaratory judgment has been sought. We conclude that it
cannot . . . . 54
53 See TEX. CIV. PRAC. & REM. CODE §
37.004; Allstate Ins. Co. v. Hallman, 159 S.W.3d
640, 641 (Tex. 2005); Brooks v. Northglen Ass'n,
141 S.W.3d 158, 161 (Tex. 2004); CU Lloyd's of
Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex.
App. Def. 109
Page 10
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
1998) [**31] (per curiam); Firemen's Ins. Co. of
Newark, N.J. v. Burch, 442 S.W.2d 331, 332 (Tex.
1968); Hoover v. Gen. Crude Oil Co., 147 Tex.
89, 90, 212 S.W.2d 140, 141 (1948).
54 977 S.W.2d at 568.
Finally, the dissent resurrects an old version of
Black's Law Dictionary to define "prevailing party" as
the one who prevails on the "main issue" of the case. The
dissent then states there was "no doubt the main issue
was defendant Intercontinental's counterclaim," and because the jury found for KB Home on that counterclaim,
KB Home must be the prevailing party. But this analysis
does precisely what the dissent accuses the Court of doing: It disregards the language of the contract.
The attorney's-fees provision makes clear that the
prevailing party is judged by "an action to enforce the
terms of this Contract or to declare rights hereunder." 55
The problem with the dissent's analysis is that Intercontinental's counterclaim was not rooted in the parties' written contract, but rather in an alleged separate oral agreement. Under the dissent's "main issue" test, the interpretation of "prevailing party" in "this Contract" is controlled by the fate of a claim brought under a separate
oral contract.
55 (Emphasis [**32] added).
Displacing the parties' agreed-to language with the
dissent's "main issue" analysis would yield an anomalous
result: Plaintiff sues for $ 1 million-plus, winds up
empty-handed, but nonetheless "prevails." That cannot
be right. Focusing on what [*662] KB Home walked
away with post-trial -- no relief whatsoever -- we cannot
say it emerged the prevailing party.
V. Conclusion
Whether seeking attorney's fees under Chapter 38
(which impliedly requires a claimant to first recover
damages) 56 or under this contract (where the jury denied
the claimant's sole basis for recovery), the bottom line is
the same: As there was no award to the client, there can
be no attorney's fee award either. 57 KB Home obtained
nothing of value from its breach-of-contract lawsuit -certainly no judgment acknowledging compensable injury -- and thus cannot recover its attorney's fees under
the contract: "to recover those fees, the [claimant] had to
recover damages for breach of contract." 58 On these uncommon facts, we adopt a "no harm, no fee" rule, meaning a stand-alone finding of breach unaccompanied by
any tangible recovery (either monetary or equitable relief) cannot bestow "prevailing party" status. As for
[**33] Intercontinental, it waived any claim for attorney's fees defending KB Home's breach-of-contract
claim by not submitting the issue to the factfinder. Ac-
cordingly, we reverse the court of appeals' judgment and
render judgment that KB Home take nothing.
56 MBM Fin. Corp. v. Woodlands Operating
Co., 292 S.W.3d 660, 2009 Tex. LEXIS 634 (Tex.
2009).
57 See id. at 663, 2009 Tex. LEXIS 634 at *1 ("a
client must gain something before attorney's fees
can be awarded.").
58 Id. at 671, 2009 Tex. LEXIS 634 at *25.
Don R. Willett
Justice
OPINION DELIVERED: August 28, 2009
DISSENT BY: Scott Brister
DISSENT
JUSTICE BRISTER, joined by JUSTICE O'NEILL,
JUSTICE WAINWRIGHT and JUSTICE MEDINA,
dissenting.
You would hardly know it from the Court's opinion,
but the only question in this case is what the parties intended in a contract providing attorney's fees for "the
prevailing party." In the rush to find a simple answer, the
Court grabs the nearest tool at hand: federal and state
laws using the same words. But legislative intent (which
forms the basis of the companion case decided today 1) is
not the same as the parties' intent, unless the parties intended to adopt the same meaning--and there is no evidence here that they did. To the [**34] contrary, we
must presume they did not, as the defendant filed only a
partial reporter's record with no statement of points. 2
1 See MBM Fin. Corp. v. Woodlands Operating
Co., L.P. 292 S.W.3d 660 (Tex. 2009).
2 See Feldman v. Marks, 960 S.W.2d 613, 614
(Tex. 1996) (per curiam) ("If an appellant fails to
present a complete statement of facts on appeal,
the appellate court must presume that the omitted
portions are relevant and support the trial court's
judgment."); TEX. R. APP. P.34.6(c)(1).
The judgment here granted the plaintiff KB Home
no damages, but, as the Court admits, "nothing in the
contract expressly requires that a party receive any
amount of damages" before recovering its fees. 3 The
contract provided fees to the prevailing party in an action
"to declare rights hereunder," and the judgment here declared that the defendant Intercontinental breached the
contract. This alone was enough to justify the fee award.
3 292 S.W.3d at 669 (quotation marks omitted).
App. Def. 110
Page 11
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
KB Home's victory in the trial court was not Pyrrhic--that is, a victory "won at [*663] excessive cost." 4
Until now, this suit cost KB Home nothing because the
jury assessed fees against its opponent. It hardly seems
fair to declare [**35] that KB Home gained nothing by
this suit after setting aside the part of the jury verdict and
judgment in which it gained something.
4
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1855 (2002).
I agree with the court of appeals that under this contract, "liability, not damages, is the appropriate indicator
of which party has prevailed in litigation." 5 Accordingly, I would affirm the judgment for the plaintiff; because the Court does otherwise, I respectfully dissent.
5
S.W.3d at
1. "To Declare Rights Hereunder"
Texas follows "the American Rule" prohibiting recovery of attorney's fees unless provided by contract or
statute. 6 As this fee award depends entirely on a contract, we must start with the contract's terms:
Attorney's Fees. If either party named
herein brings an action to enforce the
terms of this Contract or to declare rights
hereunder, the prevailing party in any
such action, on trial or appeal, shall be entitled to his reasonable attorney's fees to
be paid by [the] losing party as fixed by
the court.
6 Tony Gullo Motors 1, L.P. v. Chapa, 212
S.W.3d 299, 310-11 (Tex. 2006).
Even if "prevailing party" status usually requires an
award of money damages (which, as shown below,
[**36] it does not), this contract precludes such an interpretation for three reasons. First, the contract provides
fees for a prevailing defendant as well as a prevailing
plaintiff A defendant with no counterclaim could never
recover money damages, yet under this contract would
be entitled to recover its attorney's fees anyway.
Second, the contract provides for fees in actions "to
declare rights hereunder." An action to "declare rights" is
not an action for money damages; a declaratory judgment may be rendered on liability alone without any reference to damages. 7 The Court says KB Home did not
obtain a judgment declaring its rights, but that is not
what the judgment itself says. After detailing the jury's
verdict, the judgment explicitly states on page 4 that Intercontinental "failed to comply with the Santa Clara Lot
Contract" and its "failure to comply was not excused."
What more could a judgment say to declare the parties'
contractual rights?
7 CU Lloyd's of Tex. v. Feldman, 977 S.W.2d
568, 569 (Tex. 1998) (per curiam) ("When the relief sought is a declaratory judgment, an appellate
court may properly render judgment on liability
alone.").
Third, a party with no damages can still bring
[**37] an action "to enforce the terms" of a contract.
Since its earliest days, Texas law has provided that a
party who has suffered no damages may still obtain
nominal damages for breach of contract. 8 A party with
no damages may also seek rescission [*664] or specific
performance. 9 Money damages may be indispensable in
contract claims seeking money damages, but not for contract claims seeking something else.
8 See, e.g., Lubbock Mfg. Co. v. Sames, 598
S.W.2d 234, 237 (Tex. 1980); Malakoff Gin Co. v.
Riddlesperger, 108 Tex. 273, 192 S.W. 530, 532
(Tex. 1917); Porter v. Kruegel, 106 Tex. 29, 155
S.W. 174, 175 (Tex. 1913); Raymond v. Yarrington, 96 Tex. 443, 73 S.W. 800, 804 (Tex. 1903);
Davis v. Tex. & P. Ry., 91 Tex. 505, 44 S.W. 822,
823 (Tex. 1898); Seibert v. Bergman, 91 Tex. 411,
44 S.W. 63, 64 (Tex. 1898); East Line & Red
River R.R. v. Scott, 72 Tex. 70, 10 S.W. 99, 102
(Tex. 1888); Stuart v. W. Union Tel. Co., 66 Tex.
580, 18 S.W. 351, 352 (Tex. 1885); Moore v.
Anderson, 30 Tex. 224, 231 (1867); Hope v. Alley, 9 Tex. 394, 395 (1853); McGuire v. Osage
Oil Corp., 55 S.W.2d 535, 537 (Tex. Comm'n
App. 1932, holdings approved); see also Note,
Pleading--Necessity of Damage to Cause of Action, [**38] 9 TEX. L. REV. 111, 112 (1930)
(citing cases).
9 See, e.g., DiGiuseppe v. Lawler, 269 S.W.3d
588, 594 (Tex. 2008) (specific performance);
Country Cupboard, Inc. v. Texstar Corp., 570
S.W.2d 70, 73-74 (Tex. Civ. App.--Dallas 1978,
writ ref'd n.r.e.) (rescission).
The Court says "[a] stand-alone finding on breach
confers no benefit whatsoever." 10 But this judgment did
not rescind the contract or render it void, and there was
no evidence all the lots in Santa Clara had been sold.
While KB Home did not request specific performance,
that does not mean either party no longer has to perform.
Before suit was filed, Intercontinental acted as if it were
excused from the contract; this judgment says it is not.
That seems to me precisely the kind of "judicially sanc-
App. Def. 111
Page 12
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
tioned change in the legal relationship of the parties"
that makes KB Home at least partly the winner.
11
10
S.W.3d at
11 See Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep't of Health & Human Res., 532 U.S.
598, 605, 121 S. Ct. 1835, 149 L. Ed. 2d 855
(2001); id. at 615 (Scalia, J., concurring) (stating
that "prevailing party" has "traditionally" and
"invariably" meant "the party that wins the suit or
obtains a finding (or an [**39] admission) of liability").
The Court avoids the parties' contract by looking entirely to federal and state statutory law, but those laws
are drafted differently. In Texas, statutory attorney's fees
for breach of contract require a monetary recovery because the statute provides for fees only when recovered
"in addition to the amount of a valid claim." 12 The federal Declaratory Judgment Act does not authorize attorney's fees, 13 the Supreme Court cases said to be "helpful
in this area" all concern federal statutes attaching attorney's fees to a damages claim. 14 course, the Supreme
Court's views are not just "helpful" but binding when we
construe those federal statutes. But that is not the case
when we apply Texas law to construe a Texas contract
whose terms differ from any existing federal or state law.
As there is no evidence the parties contracted with reference to these statutes or cases, relying on them simply
replaces the parties' intent with someone else's.
12 TEX. CIV. PRAC. & REM. CODE § 38.001
(emphasis added); see MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 666 (Tex.
2009); Mustang Pipeline Co. v. Driver Pipeline
Co., 134 S.W.3d 195, 201 (Tex. 2004) (per curiam); [**40] Green Int'l, Inc. v. Solis, 951
S.W.2d 384, 390 (Tex. 1997); State Farm Life Ins.
Co. v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995).
13 See AG Acceptance Corp. v. Veigel, 564 F.3d
695, 701 (5th Cir. 2009) (noting the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202,
authorizes attorney's fees only if state substantive
law provides for them); see also Camacho v. Tex.
Workforce Comm'n, 445 F.3d 407, 409-12 (5th
Cir. 2006) (holding Texas Declaratory Judgment
Act does not represent "state substantive law").
14 See County of Dallas v. Wiland, 216 S.W.3d
344, 358 n.61 (Tex. 2007) (addressing attorney's
fees provided by 42 U.S.C. § 1988);Sw Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 55-56
(Tex. 1998) (per curiam) (addressing attorney's
fees provided by Texas Labor Code § 21.259, a
statute intended to effectuate Title VII of the federal Civil Rights Act, see id. 21.001); Grounds v.
Tolar Indep. Sch. Dist., 856 S.W.2d 417, 423
(Tex. 1993) (Gonzalez, J., concurring) (addressing attorney's fees provided by 42 U.S.C. § 1988).
I agree that if a statute of limitations or some other
affirmative defense barred KB Home's contract claim, it
could not be the prevailing party. But the judgment
[**41] in such a case would declare that KB Home had
no contractual rights due to that affirmative defense. By
contrast, the absence of damages does not preclude a
declaration [*665] that KB Home has a right to contract
performance. Reading this contract as a whole, the parties never intended zero damages to mean zero attorney's
fees.
II. "Prevailing Party"
There is a another reason KB Home is entitled to attorney's fees under this contract and this judgment: it was
the "prevailing party" as that term is understood in Texas
law. The contractual context here shows the parties did
not intend "prevailing party" to require damages, but the
term itself would require the same conclusion regardless
of context.
When looking for common and ordinary meanings
of legal terms, we routinely refer to Black's Law Dictionary, 15 which defines "prevailing party" as "[a] party
in whose favor a judgment is rendered, regardless of the
amount of damages awarded." 16 By ignoring the second
phrase and making the $ 0 damage award dispositive,
the Court departs from the ordinary meaning of "prevailing party."
15 See, e.g., Ingram v. Deere, 288 S.W.3d 886,
893 (Tex. 2009); Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 437-38, 441 (Tex.
2009); [**42] Guitar Holding Co. v. CL Mach.
Co., 263 S.W.3d 910, 916 n.6 (Tex. 2008); Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751
n.33 (Tex. 2006); Am. Mfrs. Mut. Ins. Co. v.
Schaefer, 124 S.W.3d 154, 158-59 (Tex. 2003).
16 BLACK'S LAW DICTIONARY 1154 (8th
ed. 2004) (emphasis added).
Earlier editions of Black's from the 1960s until the
1990s included an additional qualifier--that "prevailing
party" should focus on the "main issue" in the litigation:
Prevailing party. The party to a suit
who successfully prosecutes the action or
successfully defends against it, prevailing
on the main issue, even though not necessarily to the extent of his original contention. 17
App. Def. 112
Page 13
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
This "main issue" qualification has been adopted by 11
of the 14 courts of appeals in Texas. 18
17 BLACK'S LAW DICTIONARY 1188 (6th
ed. 1990) (emphasis added); see also BLACK'S
LAW DICTIONARY 1069 (5th ed. 1979);
BLACK'S LAW DICTIONARY 1352 (4th ed.
1968).
18 1st: Indian Beach Prop. Owners' Ass'n v.
Linden, 222 S.W.3d 682, 696-97 (Tex. App.-Houston [1st Dist.] 2007, no pet.); Weng Enters.,
Inc. v. Embassy World Travel, Inc., 837 S.W.2d
217, 222-23 (Tex. App.--Houston [1st Dist.]
1992, no writ).
2nd: Taylor Elec. Servs., Inc. v. Armstrong
Elec. Supply Co.,]167 S.W.3d 522, 532-33 (Tex.
App.--Fort Worth 2005, no pet.); [**43] Head v.
U.S. Inspect DFW, Inc., 159 S.W.3d 731, 749
(Tex. App.--Fort Worth 2005, no pet.).
3rd: Lay v. Whelan, No. 03-03-00115-CV,
2004 Tex. App. LEXIS 5777, 2004 WL 1469246,
at *6 (Tex. App.--Austin July 1, 2004, pet. denied); Cysco Enters., Inc. v. Hardeman Family
Joint Venture, Ltd., No. 03-02-00230-CV, 2002
Tex. App. LEXIS 8955, 2002 WL 31833724, at *6
(Tex. App.--Austin Dec. 19, 2002, no pet.).
4th: City of Laredo v. Almazan, 115 S.W.3d
74, 78 (Tex. App.--San Antonio 2003, no pet.).
5th: Blockbuster, Inc. v. C-Span Enter., Inc.,
276 S.W.3d 482, 491 (Tex. App.--Dallas 2008,
pet. granted); In re M.A.N.M., 231 S.W.3d 562,
566 (Tex. App.--Dallas 2007, no pet.); Probus
Props. v. Kirby, 200 S.W.3d 258, 265 (Tex. App.-Dallas 2006, pet. denied).
6th: Moore v. Jet Stream Invs., Ltd., 261
S.W.3d 412, 431 n.15 (Tex. App.--Texarkana
2008, pet. denied); In re Estate of Bean, 206
S.W.3d 749, 764 (Tex. App.--Texarkana 2006,
pet. denied).
7th: Brent v. Field, 275 S.W.3d 611, 622
(Tex. App.--Amarillo 2008, no pet.); Dean Foods
Co. v. Anderson, 178 S.W.3d 449, 454 (Tex. App.-Amarillo 2005, pet. denied).
8th: Guitar Holding Co. v. CL Mach. Co.,
209 S.W.3d 146, 168 (Tex. App.--El Paso 2006),
rev'd [**44] on other grounds, 263 S.W.3d 910
(Tex. 2008).
12th: Robbins v. Capozzi, 100 S.W.3d 18, 27
(Tex. App.--Tyler 2002, no pet.).
13th: Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co., 3 S.W.3d 112, 128 (Tex.
App.--Corpus Christi 1999, pet. denied); Norrell
v. Aransas County Navig. Dist. No. 1, 1 S.W.3d
296, 303 (Tex. App.--Corpus Christi 1999, pet.
dism'd).
14th: 4901 Main, Inc. v. TAS Auto., Inc., 187
S.W.3d 627, 634 (Tex. App.--Houston [14th Dist.]
2006, no pet.); Emery Air Freight Corp. v. Gen.
Transp. Sys., Inc., 933 S.W.2d 312, 316 (Tex.
App.--Houston [14th Dist.] 1996, no pet.).
[*666] In this litigation, there is no doubt the main
issue was the defendant Intercontinental's counterclaim.
The parties' contract reserved every lot in the Santa Clara
subdivision for KB Home, and Intercontinental conceded
it sold some of those lots to third parties. Thus, the main
issue was not whether Intercontinental had breached the
contract; it clearly had. Instead, the main issue was
whether that breach was excused by KB Home's refusal
to buy lots at high prices elsewhere in return for buying
at low prices in Santa Clara. The jury rejected that counterclaim, so KB Home was the prevailing party on the
[**45] main issue in this litigation. 19
19 See Cysco Enters., 2002 Tex. App. LEXIS
89552002 WL 31833724, at *6 (holding defendant was prevailing party on main issue even
though jury awarded it no damages on its counterclaim).
The Court rejects main-issue analysis (although
adopted by virtually every other Texas court) because
Intercontinental's counterclaim was not "an action to
enforce the terms of this Contract." 20 But to recover on
this contract, KB Home had to prove it had not been
orally amended by another. As we held in Varner v.
Cardenas, attorney's fees for enforcing a contract include
those incurred overcoming counterclaims raised in defense. 21
20
S.W.3d at
21 See 218 S.W.3d 68, 69 (Tex. 2007) (per curiam).
Oddly, the Court's opinion today means Intercontinental was the prevailing party, even though it was the
only party that breached. The Court avoids awarding
Intercontinental attorney's fees on the ground that it
failed to preserve error. But future contract breakers may
not make the same mistake. It is hard to see the justice in
reading this common contract provision to provide attorney's fees for the party that committed the breach.
The Court's rule also ignores the reality [**46] that
everybody incurs costs when a contract fails. Breach of
contract damages include lost profits (expectancy), outof-pocket expenses (reliance), and restitution; 22 most
litigants pursue only lost profits as that is normally the
App. Def. 113
Page 14
295 S.W.3d 650, *; 2009 Tex. LEXIS 631, **;
52 Tex. Sup. J. 1204
largest measure. But today's ruling requires parties to sue
for all of them, no matter how small, to make sure they
will "prevail" by receiving some kind of money judgment.
22
RESTATEMENT (SECOND) OF CONTRACTS § 344 (1981); see Quigley v. Bennett,
227 S.W.3d 51, 56 (Tex. 2007) (Brister, J., concurring in part and dissenting in part); Lon L.
Fuller & William R. Perdue, The Reliance Interest in Contract Damages, 46 YALE L.J. 52, 56
(1936)
The Court's no-damages/no-fees rule is certainly
easy to apply, but making life easy for judges is not a
rule of contract construction. 23 Whether a party prevailed
in litigation is a mixed question of law and fact. Perhaps
in some cases a $ 1 recovery represents a substantial
victory for the plaintiff, but in most cases it represents a
total loss; treating every plaintiff who wins $ 1 as a prevailing party is not what most people intend when they
sign a contract like this.
23 I do not know what the Court means when it
says [**47] the Supreme Court's opinion in
Buckhannon "basically held 'no money judgment,
no fees.'"
S.W.3d at
n.26. The question in
Buckhannon was not money judgments but collateral consequences--whether legislative action
apart from any judgment could make a litigant
the prevailing party.
The contract here called for attorney's fees to be
"fixed by the court," and the trial judge awarded them to
KB Home. [*667] With only a partial trial record, we
must presume that was right.
IV. Conclusion
I agree there is little reason to encourage suits by
those who have suffered no damages solely so an attorney can recover a large fee. But that is not the way litigation usually works, or what occurred here. Lost profits
from a venture that failed are always hard to assess, so
litigants often believe they have been damaged until a
jury tells them they have not. I would not punish such
litigants for failing to prove damages unless that is what
their contract requires.
Markets, especially in real estate, can rise or fall
substantially in a very short time. Under the Court's interpretation, the "prevailing party" entitled to attorney's
fees may depend precisely upon those swings, not upon
who was in the wrong. [**48] That may be a reasonable
way to draft a statute, but that is not what the parties contracted for here. Accordingly, I would affirm the judgment of the trial court and court of appeals.
Scott Brister
Justice
OPINION DELIVERED: August 28, 2009
App. Def. 114
Page 1
LEXSEE 296 S.W.3D 634
Cited
As of: Jul 19, 2010
JANSSEN PHARMACEUTICA, INC., Appellant, v. MELISSA M. MARTINEZ,
Appellee.
No. 08-06-00265-CV
COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO
296 S.W.3d 634; 2009 Tex. App. LEXIS 1141
February 19, 2009, Decided
SUBSEQUENT HISTORY:
November 23, 2009.
Released for Publication
Appeal from 168th District Court of El Paso County,
Texas. (TC # 2004-2737).
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant former employer challenged a decision from the 168th Court of El
Paso County, Texas, which entered judgment in favor of
appellee former employee in a discrimination case.
OVERVIEW: The employee was hired as a pharmaceutical sales representative, and she was supposed to make
contact with doctors on a daily basis. It was discovered
that her records were inaccurate. The employee was
fired, and she later alleged this was due to her pregnancy
and her ethnicity. The trial court entered judgment in
favor of the employee on her discrimination claims, but
the employer filed an appeal. In reversing, the appellate
court held that discrimination was prohibited in employment under Tex. Lab. Code Ann. § 21.051 (2006). Discrimination on the basis of sex included pregnancy under
Tex. Lab. Code Ann. § 21.106(a). The employee tried to
prove her case by showing disparate treatment; however,
she did not show that her conduct was similar to two
others who were not fired. Further, given the passage of
time and the pendency of this litigation, the employee's
circumstances were also not comparable to a third
worker who was not fired. Next, pretext was not shown.
The employee's evidence did not address how or why the
employer's stated reason for her termination was false;
she only contended that she had not admitted to dishonesty and would have explained herself if given the
chance.
OUTCOME: The decision was reversed, and judgment
was rendered for the employer.
Proof > Allocation
[HN1] A no evidence or legal insufficiency point is a
question of law which challenges the legal sufficiency of
the evidence to support a particular fact finding. When
the party with the burden of proof suffers an unfavorable
finding, the point of error should be that the fact or issue
was established as a matter of law. When the party without the burden of proof suffers an unfavorable finding,
the challenge on appeal is one of no evidence to support
the finding. A legal sufficiency or no evidence challenge
will be sustained on appeal if the record shows: (1) the
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complete absence of a vital fact, (2) the court is barred
by rules of law or evidence from giving weight to the
only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.
Evidence > Inferences & Presumptions > Inferences
[HN2] In reviewing a legal sufficiency challenge, an
appellate court views the evidence in the light most favorable to the judgment, crediting favorable evidence if a
reasonable juror could, and disregarding contrary evidence if a reasonable juror could not. It is to consider the
evidence in the light most favorable to the verdict, and
indulge every reasonable inference that would support it.
However, if the evidence allows of only one inference,
the trier of fact may not disregard it. When a no evidence
point of error rests on the competency of the evidence,
the appellate court may not disregard contrary evidence
showing it to be incompetent.
Governments > Courts > Judicial Precedents
[HN3] The Texas Commission on Human Rights Act
prohibits discrimination in employment based on race,
color, disability, religion, sex, national origin, or age.
Tex. Lab. Code Ann. § 21.051 (2006). Discrimination on
the basis of sex includes pregnancy. Tex. Lab. Code Ann.
§ 21.106(a). One express purpose of the Act is to provide
for the execution of the policies of Title VII of the Civil
Rights Act of 1964 and its subsequent amendments. Tex.
Lab. Code Ann. § 21.001(1). Consequently, when reviewing an issue brought under Tex. Lab. Code Ann. ch.
21, the appellate court may look not only to cases involving the state statute, but also to cases interpreting the
analogous federal provisions.
Evidence > Procedural Considerations > Circumstantial & Direct Evidence
[HN4] In discrimination cases based upon circumstantial
evidence, a plaintiff must first establish a prima facie
case that: (1) she is a member of a protected class; (2)
she suffered an adverse employment action; (3) she was
qualified for the job she held; and (4) she was replaced
by someone not within her protected class. The burden of
production then shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate,
nondiscriminatory reason. This burden is one of production only, not persuasion, involving no credibility assessment. Once the employer has articulated a legitimate
nondiscriminatory reason for the adverse employment
action, the plaintiff may prove discrimination by showing that the reasons offered by the employer were not its
true reasons, but were a pretext for discrimination. A
plaintiff's prima facie case, combined with sufficient
evidence to find that the employer's asserted justification
is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.
Labor & Employment Law > Discrimination > Disparate Treatment > Employment Practices > Adverse Employment Actions > Discipline
[HN5] To prevail on a claim of discrimination based on
disparate treatment, a party must prove that: (1) she was
a member of a class protected by the Act; (2) she was
qualified for her positions; (3) she was terminated; and
(4) she was treated less favorably than similarly situated
members of the opposing class. Employees are similarly
situated if their circumstances are comparable in all material respects, including similar standards, supervisors,
and conduct. To prove discrimination based on disparate
discipline, the disciplined and undisciplined employees'
misconduct must be of comparable seriousness. Although precise equivalence in culpability is not the ultimate question, a plaintiff must usually show that the
misconduct for which she was discharged was nearly
identical to the conduct engaged in by an employee
whom the company retained.
Evidence > Relevance > Relevant Evidence
Labor & Employment Law > Discrimination > Disparate Treatment > Employment Practices > General
Overview
[HN6] The last date of allegedly discriminatory conduct
is not a bright line beyond which the conduct of the employer is no longer relevant in a discrimination case.
Otherwise, clearly relevant evidence would be arbitrarily
excluded; for instance, a plaintiff in a race discrimination
case would then be precluded from producing evidence
that the week after he was fired, a white employee escaped discipline for the exact same conduct. The focus
must remain on whether the evidence is relevant to demonstrate that discrimination played a role in the decision,
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and that determination is not served by a bright-line temporal restriction. There is no bright-line rule as to how
much time can pass between the decisions before they
are no longer appropriate for comparison.
Civil Procedure > Trials > Jury Trials > Jury Instructions > General Overview
[HN7] When reviewing a sufficiency of the evidence
challenge, an appellate court is to rule on the question
and instruction actually submitted to the jury, rather than
the instruction that should have been submitted to the
jury, if the defect was never brought to the court's attention.
JUDGES: Before McClure, J., Barajas, C.J. (Ret.), and
Gomez, J. Barajas, C.J. (Ret.), sitting by assignment.
Gomez, J., sitting by assignment.
OPINION BY: ANN CRAWFORD McCLURE
OPINION
[*636] Janssen Pharmeceutica, Inc. appeals a jury
verdict in favor of Melissa M. Martinez on employment
discrimination claims. Because the evidence at trial was
not legally sufficient to support Martinez's claims, we
reverse and render judgment in favor of Janssen.
FACTUAL SUMMARY
Martinez was employed by Janssen as a pharmaceutical sales representative for certain medications aimed at
the central nervous system. She was hired in May 2002,
after interviewing with Jim Ball, Janssen's District Manager for the South Central Region, and Rob Kraner,
Janssen's Business Director for the South Central region.
Ball reported to Kraner.
Martinez was to call on physicians, to sell the products she was promoting, and to enter calls into Janssen's
computer system, known as Siebel. Janssen's policy required that sales representatives enter a summary of sales
calls to physicians into the Siebel system immediately
following the call. Calls are classified as reportable or
nonreportable. [**2] Reportable calls require face-toface interaction with the customer about the product.
Janssen expected that eight reportable sales calls would
be made each work day. Janssen's sales representatives
were provided with a company car and company fuel
card. Each time gas was purchased, a representative was
required to enter the odometer reading of the company
car. Mileage must also be entered in expense reports.
When Martinez began working for Janssen, Jim Ball
was her supervisor. Her territory included El Paso and
portions of West Texas. After a realignment of sales districts in December 2002, Martinez began reporting to
Shannon Groppenbacher, a District Manager based in
Phoenix, who in turn reported to Rob Kraner until December 2004. After the realignment, Martinez's territory
covered El Paso and southern New Mexico, including the
cities of Las Cruces, Alamogordo, Carlsbad, Hobbs, and
Roswell. Of all the employees whom Groppenbacher
supervised, Martinez was the only Hispanic.
In December 2002, Groppenbacher invited Martinez
to Arizona so they could become acquainted and so that
Martinez could meet the other sales representatives in the
new district. Groppenbacher also traveled to El Paso
[**3] in January 2003 to [*637] meet with Martinez and
to coach her on her sales performance. Groppenbacher
had positive comments about the job Martinez was doing. Martinez learned she was pregnant in January 2003
and she informed Groppenbacher in February. Due to
complications, Martinez took a two-week leave of absence and Groppenbacher helped her obtain leave. In
April, Groppenbacher received a complaint from Dr.
Fizbein, a physician in Las Cruces, that he was not receiving good service from Martinez and that it was difficult for him to obtain samples. Groppenbacher also received calls from other physicians in southern New Mexico who were seeking a representative. These complaints
prompted Groppenbacher to report the matter to Kraner.
Groppenbacher was instructed to investigate, either by
Kraner or Grayce Hubbard, an employee in Janssen's
human resources department. Groppenbacher and Kraner
obtained fuel log reports for Martinez, the log of her call
entries into the Siebel system, her expense reports, and
mileage information from MapQuest.com. Upon comparing the dates that Martinez made reportable calls, the
dates and locations that she refueled her car using the
company fuel card, and the mileage [**4] required to
travel from El Paso for the calls, Groppenbacher and
Kraner concluded that Martinez could not have made all
of the sales calls that she reported. Groppenbacher noticed that the call entries made on January 30, 2003 were
for visits in Alamogordo, Roswell, Carlsbad, and Las
Cruces. Groppenbacher determined that the drive from
El Paso to visit these cities was approximately 470 miles.
Martinez's fuel reports indicated that she had refueled in
New Mexico on the afternoon of January 30. Although
Groppenbacher conceded that it might have been possible to travel 470 miles on one tank of gas, she discovered
that Martinez had not used the fuel card again until February 24. But Martinez had entered calls into the system
for office visits in the El Paso and Las Cruces area on
January 31, February 4, February 5, and February 7.
Groppenbacher decided that it would have been impossible for Martinez to travel to all of the reported locations
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and only refuel the vehicle once. Groppenbacher also
noticed a January 30 call report to Dr. Pezzarossi in
Roswell, New Mexico. When she called the office,
Groppenbacher was told by the receptionist that Dr. Pezzarossi had moved to Albuquerque and [**5] had not
practiced in Roswell since the summer of 2002. Martinez
also entered a call for Pezzarossi in Roswell on March
24. Martinez reported a call to the office of Dr. Gervais
on the same date and later admitted to Groppenbacher
that she had not made the call. Martinez had refueled her
company vehicle on March 20, and reported calls on
March 21 in El Paso and Las Cruces. Martinez next reported calls for March 24 (including calls to Dr. Pezzarossi and Dr. Gervais) for locations in Alamogordo and
Roswell. Groppenbacher determined that the approximate round trip mileage was 460 miles. Martinez reported additional calls in El Paso and Las Cruces on
March 25. According to the fuel reports, Martinez did
not refuel her vehicle until March 25 at 9:10 p.m.
Groppenbacher also contacted physicians in the
area. She called the office of Dr. Danckzk about Martinez's reported visit on February 28. The nurse told Groppenbacher that she had worked in the office Monday
through Friday each day for the preceding seven months
and did not recall seeing a representative during that
time. Another nurse who had worked there for a longer
period of time, did not recall seeing a representative either.
Groppenbacher [**6] also found that the calls that
Martinez had reported for February 28 would have included Hobbs and Carlsbad. Groppenbacher calculated
that the [*638] round-trip mileage to these cities from
El Paso was approximately 460 miles. Martinez refueled
her vehicle on February 24, but did not refuel again until
March 4. She had reported calls for March 3 and 4 in El
Paso and Las Cruces. Again Groppenbacher concluded it
would not have been possible for Martinez to make all of
these visits on a single tank of gas.
Information concerning the date a call report was entered into the Siebel computer system was available from
Janssen's home office, but the data could not be viewed
by sales representatives. Groppenbacher obtained that
information and determined that Martinez had input certain call reports weeks after the date of the call. Groppenbacher and Kraner concluded that Martinez had
falsely entered calls for doctors that she had not seen.
Janssen had a four-step disciplinary procedure in
place. The first step was a verbal warning. The next step
consisted of a written statement describing the incident
and warning the employee that he or she needed improvement. The third step was a final written warning.
[**7] The last step, known as a Group I violation, was
termination. Groppenbacher communicated her findings
to Janssen's human resources department, which suggested that Martinez had committed Group I violations
by entering calls that she had not made.
Groppenbacher then asked Martinez to fly to Phoenix on April 30, 2003, for a meeting to discuss territory
management issues. She did not ask Martinez about her
call entries prior to the meeting. According to Groppenbacher, the purpose of the meeting was to get Martinez's
side of the story. She did not ask Martinez to bring any
paperwork or backup data. Groppenbacher denied that
termination had been decided upon prior to the meeting.
She and Kraner met with Martinez in Phoenix for some
two to three hours. They informed her that she had committed a Group I violation and that they would be back in
touch with her. According to Groppenbacher, Martinez
admitted to making a "mistake," but she did not admit
that she falsified documents. Kraner noted that Martinez
admitted she had not seen Dr. Gervais on March 24; that
she entered a call out of frustration of not having seen
another doctor on March 24; that she fabricated having
seen Dr. Pezzarossi [**8] in Roswell; that she did not
see Dr. Fizbein as reported on March 26; and that she did
not see a doctor in Hobbs on February 28 as reported.
According to Kraner, Martinez admitted that she entered
calls on physicians she did not see. Kraner acknowledged
that Martinez did not specifically admit to falsifying
documents, but only to inaccuracies. After the meeting,
Groppenbacher discussed the issue with Kraner and
Hubbard and decided to terminate Martinez. Kraner contacted Martinez and offered to allow her to resign in lieu
of termination. When Martinez refused, Kraner terminated her employment for violation of Janssen's Group I
work rules. Groppenbacher then hired Susan Blake, a
Caucasian female, to replace Martinez. Martinez sent a
letter to Janssen advising that she was aware of other
employees who were not terminated in similar circumstances, and that she believed that she had not received
equal treatment because of her pregnancy and her ethnicity.
Marc Hood, a Caucasian male, was a sales representative for Janssen in the same region as Martinez. He
received a formal warning on June 27, 2002 for failing to
enter his calls to physicians into Janssen's Siebel system.
Groppenbacher was [**9] not the decision maker but
she learned of Hood's discipline after Martinez filed suit.
Groppenbacher testified that Hood's violations were different.
[*639] After Martinez was terminated, Groppenbacher supervised a sales representative named Caren
Solberg. Solberg held the same position that Martinez
had held, but she was located in Phoenix. Solberg was a
Caucasian female, and was not pregnant when Groppenbacher hired her. Groppenbacher conducted an investigation of Solberg and disciplined her in May of 2005 for
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violation of a Group I work rule. Solberg reported seeing
certain doctors when, in fact, she had not. She received a
formal written warning for her conduct but was not terminated. According to Groppenbacher, Solberg's violation had been different, but she did not explain how,
other than to say that Janssen's human resources department determined that Solberg's actions had not been deceitful. Groppenbacher claimed that she had administered the discipline to Solberg but that Janssen's human
resources department had decided on the appropriate
discipline. Groppenbacher explained that she went to the
human resources department in Solberg's case because of
the litigation involving Martinez. [**10] Had she been
the decision maker, Groppenbacher would have fired
Solberg "to be fair and equal to everybody."
Kraner testified that he was not aware of any employees who had been disciplined for similar conduct. He
had been involved in the discipline of Marc Hood and
Doug Shannon for failing to report required daily activity
reports. Hood and Shannon were both sales representatives and both were Caucasian males. They received
warning letters for failing to enter their calls on a timely
basis, but neither was terminated. Kraner testified that
the investigations of Hood and Shannon did not reveal
they had falsified documents. Kraner was not involved in
the discipline of Caren Solberg because she was not in
his district. Kraner believed that Hood and Shannon's
conduct differed from Martinez's because they had seen
doctors but failed to timely report the visits. Hood's violations constituted a Group II work rule violation which
provides for corrective action. Martinez's actions constituted violations of Group I work rules pertaining to falsification of documents and dishonesty. Martinez testified
that Groppenbacher called her about the April 30 meeting in Phoenix to discuss territory issues. [**11] She
was not specifically told what would be discussed. (She
described the meeting as a "Spanish inquisition" in which
she was asked question after question without a break.)
Martinez she did not have any paperwork or any other
way to prove that she had not the things of which she
was accused. She felt that Kraner and Groppenbacher
were nit-picking for any faults in her work and that they
were looking for a reason to pin something on her. After
having time to think about the situation on the flight
home, she decided to write the letter to Groppenbacher
and take responsibility for any inaccuracies in her reports. Martinez believed that she only admitted to inaccuracies, and not to falsifying documents or intentionally
misreporting information. Martinez hoped that by writing
the letter, she would have an opportunity to present some
documentation to rebut the accusations.
As for some of the specific allegations against her,
Martinez claimed she had been confused when she entered the call reports for Dr. Gervais and Dr. Pezzarossi
because she visited the office in Roswell for the first
time in January of 2003 and believed that the two doctors
shared an office. Martinez had met so many people
[**12] that she "didn't quite know who everyone was."
She thought she had met Dr. Pezzarossi and, as a result,
entered his name in the system incorrectly. As for her
trip to Roswell on January 30, she did not take the company car, but took her personal car because she was staying with friends in [*640] Dell City, Texas, and felt it
would have been inappropriate to take the company car
on a personal trip.
Martinez was five months pregnant when she was
terminated. On May 5, 2003, she e-mailed Ed Hill, the
head of Janssen's human resources department, and
transmitted her letter to Groppenbacher. In the e-mail,
Martinez stated that she was aware of other employees in
similar circumstances who had not been fired, but were
given formal warnings. Martinez alleged that she was not
treated equally because of her pregnancy and her ethnicity.
The jury found that Martinez's pregnancy and her
national origin were motivating factors in Janssen's decision to terminate her. She was awarded damages of $
690,000 for back pay, front pay, and compensatory damages. The amount was reduced in the final judgment to $
74,999 in accordance with Martinez's stipulation and
pleadings.
LEGAL INSUFFICIENCY
Standard of Review
[HN1] A "no [**13] evidence" or legal insufficiency point is a question of law which challenges the
legal sufficiency of the evidence to support a particular
fact finding. Serrano v. Union Planters Bank, N.A., 162
S.W.3d 576, 579 (Tex.App.--El Paso 2004, pet. denied).
When the party with the burden of proof suffers an unfavorable finding, the point of error should be that the fact
or issue was established as "a matter of law." Id. When
the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "no evidence to support the finding." Id. A legal sufficiency or
"no evidence" challenge will be sustained on appeal if
the record shows: (1) the complete absence of a vital
fact, (2) the court is barred by rules of law or evidence
from giving weight to the only evidence offered to prove
a vital fact, (3) the evidence offered to prove a vital fact
is no more than a scintilla, or (4) the evidence establishes
conclusively the opposite of the vital fact. Carrasco v.
Stewart, 224 S.W.3d 363, 367 (Tex.App.--El Paso 2006,
no pet.), citing City of Keller v. Wilson, 168 S.W.3d 802,
810 (Tex. 2005).
App. Def. 119
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[HN2] In reviewing a legal sufficiency challenge,
we view the evidence in the light [**14] most favorable
to the judgment, crediting favorable evidence if a reasonable juror could, and disregarding contrary evidence if a
reasonable juror could not. City of Keller, 168 S.W.3d at
807. We are to consider the evidence in the light most
favorable to the verdict, and indulge every reasonable
inference that would support it. Id. at 822. However, if
the evidence allows of only one inference, the trier of
fact may not disregard it. Id. When a no evidence point
of error rests on the competency of the evidence, we may
not disregard contrary evidence showing it to be incompetent. Id. at 812.
The Statute
[HN3] The Texas Commission on Human Rights
Act (the "Act") prohibits discrimination in employment
based on "race, color, disability, religion, sex, national
origin, or age." Tex.Labor Code Ann. § 21.051 (Vernon
2006). Discrimination on the basis of sex includes pregnancy. Tex.Labor Code Ann. § 21.106(a). One express
purpose of the Act is to "provide for the execution of the
policies of Title VII of the Civil Rights Act of 1964 and
its subsequent amendments." Tex.Labor Code Ann. §
21.001(1); NME Hospitals, Inc. v. Rennels, 994 S.W.2d
142, 144 (Tex. 1999). "Consequently, when reviewing an
issue [**15] brought under Chapter 21, we may look not
only to cases involving the state statute, but also to cases
interpreting the analogous federal provisions." El Paso
County [*641] v. Navarrete, 194 S.W.3d 677, 683
(Tex.App.--El Paso 2006, pet. denied).
[HN4] In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima
facie case that: (1) she is a member of a protected class;
(2) she suffered an adverse employment action; (3) she
was qualified for the job she held; and (4) she was replaced by someone not within her protected class. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120
S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000); Bowen v. El
Paso Electric Co., 49 S.W.3d 902, 908 (Tex.App.--El
Paso 2001, pet. denied). The burden of production then
shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate, nondiscriminatory
reason. This burden is one of production only, not persuasion, involving no credibility assessment. Reeves, 120
S.Ct. at 2106; Bowen, 49 S.W.3d at 909. Once the employer has articulated a legitimate nondiscriminatory
reason for the adverse employment action, the plaintiff
may prove discrimination by showing [**16] that the
reasons offered by the employer were not its true reasons, but were a pretext for discrimination. Reeves, 120
S.Ct. at 2106; Bowen, 49 S.W.3d at 909. As the Supreme
Court explained in Reeves, "[A] plaintiff's prima facie
case, combined with sufficient evidence to find that the
employer's asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully
discriminated. Reeves, 120 S.Ct. at 2109.
[HN5] To prevail on a claim of discrimination based
on disparate treatment, a party must prove that: (1) she
was a member of a class protected by the Act; (2) she
was qualified for her positions; (3) she was terminated;
and (4) she was treated less favorably than similarly situated members of the opposing class. See Ysleta Ind.
School Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.
2005); see also Thompson v. Exxon Mobil Corp., 344
F.Supp.2d 971, 980 (E.D. Tex. 2004). As the Texas Supreme Court explained in Ysleta, "[e]mployees are similarly situated if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct. To prove discrimination based on disparate discipline, the disciplined and undisciplined employees' [**17] misconduct must be of 'comparable seriousness.'" Id. at 917 [citations omitted]. Although precise
equivalence in culpability is not the ultimate question, a
plaintiff must usually show that the misconduct for
which she was discharged was nearly identical to the
conduct engaged in by an employee whom the company
retained. Id. at 917-18.
Disparate Treatment
Janssen challenges the jury's verdict on the basis that
Martinez sought to prove her case by showing that she
was treated differently than other similarly situated employees, and that there was insufficient evidence to support discrimination on this basis. Janssen contends that
this was Martinez's sole theory; she did not attempt to
prove that Janssen's reason for discharge was false and
therefore could be inferred as a pretext for discrimination. Specifically, Janssen argues that Hood, Shannon,
and Solberg were not similarly situated employees. As to
Hood and Shannon, Janssen contends they were disciplined with warning letters for failing to report sales calls
they made, whereas Martinez was fired for entering reports for calls that she never made. Martinez responds
that the evidence permitted the jury to find that she did
not falsify [**18] records, but merely made errors in her
reporting.
At trial, Janssen employees testified that Hood and
Shannon failed to enter calls to physicians into the Siebel
computer system. Groppenbacher testified that [*642]
Hood's violations were different from Martinez's. Kraner
testified that he had been involved in the discipline of
two employees, Marc Hood and Doug Shannon, for failing to report required daily activity reports. Kraner testified that investigations of Hood and Shannon did not
show that they had falsified documents.
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There was no evidence offered at trial to show that
either Hood or Shannon entered inaccurate call reports.
Rather, Hood and Shannon were reprimanded for failing
to timely enter reports of their calls. As such, Martinez
did not show that her conduct was similar. As the Texas
Supreme Court explained in Ysleta, the misconduct at
issue must be of comparable seriousness, and a plaintiff
must usually show that the misconduct for which she was
discharged was nearly identical to the conduct engaged
in by an employee whom the company retained. Id. at
917-18.
Janssen next contends that there was no evidence
that Solberg was similarly situated. First, it argues that
Solberg's case [**19] involved different decision makers. At trial, the evidence showed that Groppenbacher
made the decision concerning Martinez, and that Kraner
and Hubbard approved it. Groppenbacher testified that
she was not the decision maker with regard to Solberg,
but only delivered the discipline. Groppenbacher was
asked by counsel for Martinez, apparently referring to a
Groppenbacher's deposition, if she remembered when he
asked her who disciplined Solberg. Groppenbacher responded, "I actually told you that I disciplined her."
Thereafter, counsel for Martinez attempted to impeach
Groppenbacher's testimony with her deposition testimony. The evidence is conflicting on this issue, and contrary to Janssen's arguments on appeal, we cannot say
that the evidence conclusively established that Groppenbacher was not the decision maker with respect to Solberg.
Janssen's second argument is that Martinez was not
similarly situated to Solberg because Solberg was disciplined two years after Martinez was terminated. It is undisputed that Martinez was terminated in early May 2003
and that Solberg was disciplined in May 2005. Janssen
relies on Haggar Clothing Co. v. Hernandez, 164 S.W.3d
386 (Tex. 2005). There, a [**20] former employee sued
her employer for retaliatory discharge for allegedly firing
her because she had filed a workers' compensation claim.
The plaintiff went on leave for injuries sustained in the
workplace and remained on leave for more than a year.
Id. at 386. She was terminated pursuant to the employer's
policy which provided for a maximum leave of one year.
Id. at 387. The plaintiff presented evidence that another
employee went on leave for three years and was not terminated, and argued that this demonstrated that the policy was not uniformly enforced. Id. at 388. The Texas
Supreme Court held that such evidence amounted to no
more than a scintilla, and noted that "[e]ven viewed in
the light most favorable to the jury's finding, the evidence shows, at most, that three years after Hernandez
was terminated, Haggar failed to officially discharge one
employee who had been on leave for over a year." Id. at
389.
Martinez responds that there is no requirement that
an employment decision be made within any particular
time frame in order to be relevant. She relies on Freeman
v. Madison Metropolitan School Dist., 231 F.3d 374 (7th
Cir. 2000). In Freeman, the Seventh Circuit reversed a
district [**21] court's directed verdict against an employee on his race discrimination claim. The plaintiff
was injured on the job in 1992 and did not return to work
until 1995. Id. at 376. The plaintiff alleged that the
school district's refusal to return him to work on a modified basis was based on race discrimination because the
district's policy was to provide such modifications
[*643] and the policy was followed for Anglo employees. After concluding that the directed verdict was improper, the court addressed the exclusion of evidence of
two injured Anglo employees because their injury occurred ten months after the last alleged discriminatory
act against the plaintiff. The Seventh Circuit explained:
It is the rare case indeed in which there is a nearly
exact temporal overlap between the allegedly discriminatory conduct and the conduct regarding similarly situated
individuals. [HN6] The last date of the allegedly discriminatory conduct is not a bright line beyond which the
conduct of the employer is no longer relevant in a discrimination case. Otherwise, clearly relevant evidence
would be arbitrarily excluded; for instance, a plaintiff in
a race discrimination case would then be precluded from
producing evidence [**22] that the week after he was
fired, a white employee escaped discipline for the exact
same conduct. The focus must remain on whether the
evidence is relevant to demonstrate that discrimination
played a role in the decision, and that determination is
not served by a bright-line temporal restriction. Here, the
proffered testimony involved conduct by the employer
approximately ten months after the last challenged act
regarding Freeman.
Id. at 382. We agree that there is no bright-line rule
as to how much time can pass between the decisions before they are no longer appropriate for comparison.
However, Solberg was disciplined two years after Martinez was terminated, and almost a year after Martinez
filed this lawsuit. To be considered similarly situated, the
employees' circumstances must be "comparable in all
material respects." Ysleta, 177 S.W.3d at 917. Given the
passage of time and the pendency of this litigation, Martinez's and Solberg's circumstances were not comparable.
As such, Solberg's discipline was not relevant to Martinez's termination.
Pretext
Janssen also argues that to the extent Martinez
sought to prove discrimination by showing that its proferred reason for termination was [**23] false and thus a
pretext for discrimination, Martinez failed to present any
App. Def. 121
Page 8
296 S.W.3d 634, *; 2009 Tex. App. LEXIS 1141, **
evidence in this regard. Martinez responds that, based on
the jury charge, the jury was permitted to determine that
Janssen's reason for Martinez's termination was false and
to infer that discrimination motivated the decision.
The jury was asked whether Martinez's pregnancy
was a motivating factor in Janssen's decision to terminate
her. The jury was also asked whether Martinez's national
origin was a motivating factor in Janssen's decision to
terminate her. Among other things, the jury was instructed, on both the question concerning pregnancy and
national origin, that:
A 'motivating factor' in an employment decision is a
reason for making the decision at the time it was made.
There may be more than one motivating factor for an
employment decision.
In order to show that an employer's decision was
motivated by her pregnancy, an employee need not show
that her pregnancy was the sole cause or even a substantial cause of the employer's action. The employee need
only show that her pregnancy was a motivating factor in
the employer's action, even if other reasons existed.
Evidence that an employer's stated reason for an
[**24] employment action is false is ordinarily sufficient
to permit you to find that the employer was actually motivated by discrimination. 1
1 With regard to the question of discrimination
based on national origin, the charge contained an
identical instruction, with the exception the term
"pregnancy" was used in place of the term "national origin."
[*644] Although Janssen objected to the instruction
at trial, Janssen does not challenge it on appeal. It concedes in its reply brief that it is not seeking a new trial
based on the falsity instruction. Nevertheless, Janssen
argues in its reply brief that it preserved error on the
charge, and argues that the charge is an incorrect statement of the law with regard to proving pretext. According to Janssen, because it preserved error on the issue,
this court must analyze Janssen's legal sufficiency challenge according to an appropriate statement of the law.
[HN7] When reviewing a sufficiency of the evidence
challenge, an appellate court is to rule on the question
and instruction actually submitted to the jury, rather than
the instruction that should have been submitted to the
jury, if the defect was never brought to the court's attention. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).
[**25] Although Janssen objected to the jury charge at
trial, it has chosen not to challenge the jury charge on
appeal. For this reason, we will review Janssen's legal
sufficiency challenge according to the charge provided to
the jury.
The evidence showed that Janssen's reason for Martinez's termination was that Martinez falsified her call
reports by reporting calls that she did not make. Martinez
testified that she admitted to inaccuracies in her reports,
but never admitted to falsifying documents or intentionally misreporting information to Janssen. Martinez testified that, at the April 30 meeting, she did not have any
paperwork or any way to justify that she had not done
any of the things that she was accused of doing. Martinez
testified that she asked for the opportunity to do so. She
testified that she had brought her paperwork to the meeting, she would have had sample receipt forms to show
that she was actually in the locations at the times she
specified. After having time to think about the situation
on the flight home, she decided to write the letter to
Groppenbacher and take responsibility for any inaccuracies in her reports. Martinez stated that she only admitted
in the letter to [**26] inaccuracies, and not to falsifying
documents or intentionally misreporting information.
Martinez noted in the letter that she was "glad that [she]
was able to settle some of the issues you had concerning
territory management, for instance: the posting of unsubmitted calls; verifying certain calls had been made
but not show up in your reports . . . ."
Notably missing from Martinez's testimony is any
direct assertion that she was never dishonest concerning
her call reports or that she did not falsify her reports.
Instead, the evidence proffered by Martinez to prove that
Janssen's stated reason for her termination was false was
that she never admitted to any dishonesty or misrepresentations, that she was not told in advance the reason for
the April 30 meeting, but had she known of its purpose,
she would have offered documents to show she had visited the offices. Martinez did not produce any of the evidence of the documents at trial that she said she would
have used at the meeting.
Regarding the reported calls to Dr. Pezzarossi, Martinez explained on direct examination that she believed
Drs. Pezzarossi and Gervais had an office together, and
that she reported that she dropped off samples [**27] to
both Drs. Pezzarossi and Gervais, because "[u]sually one
physician can sign for samples for the office." On crossexamination, she explained that she had met so many
people on her visit there that she "didn't quite know who
everyone was. I met quite a few people and I entered his
name incorrectly. His name was still in the Siebel system
that he was there." She admitted that she did not speak to
Pezzarossi, and that it was obvious that she only [*645]
spoke to Dr. Gervais. Finally, with regard to discrepancies in the fuel logs, Martinez testified that for one of her
trips to Roswell at the end of January, she did not take
the company car, but took her personal car because she
was going to stay with friends in Dell City. Martinez did
not offer any explanation as to the other trips that
App. Def. 122
Page 9
296 S.W.3d 634, *; 2009 Tex. App. LEXIS 1141, **
Janssen believed showed discrepancies. Nor did Martinez indicate whether she informed Groppenbacher or
Kraner of the foregoing at the April 30 meeting, or at any
other time. Other than her explanation concerning use of
her own vehicle on one of her trips to Roswell, Martinez's evidence simply does not address how or why
Janssen's stated reason for her termination was false,
only that she never admitted dishonesty [**28] and that
she would have explained herself if given the chance.
This evidence amounts to no more than a scintilla that
Janssen was motivated by discrimination in terminating
her employment. Accordingly, we sustain Janssen's issue. We reverse and render judgment in favor of Janssen.
February 19, 2009
ANN CRAWFORD McCLURE, Justice
App. Def. 123
Page 1
LEXSEE 982 F. SUPP. 213
Caution
As of: Jul 19, 2010
CAROLANN LACOPARRA, Plaintiff, - against - PERGAMENT HOME CENTERS, INC., Defendant.
95 Civ. 8568 (WCC)
NEW YORK
982 F. Supp. 213; 1997 U.S. Dist. LEXIS 15787; 138 Lab. Cas. (CCH) P33,884; 75
Empl. Prac. Dec. (CCH) P45,864; 4 Wage & Hour Cas. 2d (BNA) 1847
October 10, 1997, Decided
DISPOSITION:
[**1] Pergament's motion for summary judgment granted with respect to all claims, and
Lacoparra's cross-motion for summary judgment on the
ERISA § 502(c) claim denied. Amended complaint dismissed in its entirety.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff former employee
brought a wrongful termination action against defendant
employer alleging, inter alia, violations of the Family
and Medical Leave Act, 29 U.S.C.S. § 2601 et seq., and
seeking sanctions under the Employee Retirement Income Security Act of 1974, specifically 29 U.S.C.S. §
1132(c), and recovery under New York state law for intentional infliction of emotional distress.
OVERVIEW: A former employee brought a wrongful
termination action against her former employer alleging
violations of various federal statutes and New York state
law. The court held that the former employer was entitled to summary judgment with respect to all claims. The
court held: (1) the former employer did not deny the employee her benefits under the Family Medical Leave Act,
29 U.S.C.S. § 2601 et seq.; (2) the employee presented
no evidence that her former employer's explanation for
her termination was motivated by unlawful discrimina-
tion prohibited under the Pregnancy Discrimination Act,
42 U.S.C.S. § 2000e(k); (3) the employee similarly failed
to present evidence of her claim of gender and pregnancy
discrimination under the New York State Human Rights
Law, N.Y. Exec. Law § 296; (4) the employee failed to
demonstrate that she was disabled within the meaning of
et seq.; (5) the employee was not entitled to sanctions
under the Employee Retirement Income Security Act, 29
U.S.C. § 1132(c); and (6) the employee failed to satisfy
any of the elements of the tort of intentional infliction of
emotional distress.
OUTCOME: The court granted the former employer's
motion for summary judgment granted with respect to all
claims, and denied the former employee's cross-motion
for summary judgment on the ERISA claim. The court
dismissed the former employee's complaint in its entirety.
Appropriateness
Genuine Disputes
App. Def. 124
Page 2
982 F. Supp. 213, *; 1997 U.S. Dist. LEXIS 15787, **;
138 Lab. Cas. (CCH) P33,884; 75 Empl. Prac. Dec. (CCH) P45,864
Materiality
[HN1] Summary judgment is appropriate 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(d). A genuine issue for trial
exists if, based on the record as a whole, a reasonable
jury could find in favor of the non-moving party. On a
motion for summary judgment, all evidence must be
viewed and all inferences must be drawn in the light
most favorable to the non-moving party.
[HN2] The party seeking summary judgment bears the
initial burden of informing the district court of the basis
for its motion and identifying the matter it believes demonstrates the absence of a genuine issue of material fact.
Upon the movant's satisfying that burden, the onus then
shifts to the non-moving party to set forth specific facts
showing that there is a genuine issue for trial. At this
stage, the non-moving party must do more than simply
show that there is some metaphysical doubt as to the
material facts. Bald assertions or conjecture unsupported
by evidence are insufficient to overcome a motion for
summary judgment.
General Overview
[HN3] Summary judgment should be employed sparingly in employment discrimination cases where the employer's intent, motivation, or state of mind are at issue.
A plaintiff must nevertheless offer concrete evidence
from which a reasonable juror could return a verdict in
his or her favor, and is not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind. The salutary purposes of summary
judgment -- avoiding protracted, expensive, and harassing trials -- apply no less to discrimination cases than to
commercial or other areas of litigation. This is particularly true where full discovery has taken place.
Labor & Employment Law > Leaves of Absence >
Family & Medical Leave Act > Coverage & Definitions
> Adoption & Maternity
> Restoration of Job & Benefits
[HN4] The Family Medical Leave Act, 29 U.S.C.S. §
2601et seq., entitles eligible employees to take up to
twelve weeks of unpaid leave in a twelve-month period
because of, inter alia, the birth of a child or a serious
health condition that makes the employee unable to perform the functions of her job. 29 U.S.C.S. § 2612(a).
Following such a leave, the employee is entitled to reinstatement to her former position or an equivalent one. 29
U.S.C.S. § 2614(a). The FMLA prohibits employers
from interfering with, restraining, or denying the exercise
of any right provided by the statute. 29 U.S.C.S. §
2615(a)(1).
Labor & Employment Law > Employment Relationships > At-Will Employment > Employees
Family & Medical Leave Act
> Employees
[HN5] The Family Medical Leave Act (FMLA), 29
U.S.C.S. § 2601 et seq., defines an "eligible employee"
as one who has been employed (1) for at least twelve
months by the current employer, and (2) for at least 1250
hours of service with that employer during the previous
twelve-month period. 29 U.S.C.S. § 2611(2)(A). To determine "hours of service," the FMLA instructs that the
legal standards employed by the Fair Labor Standards
Act (FLSA), 29 U.S.C.S.§ 207, shall apply. 29 U.S.C.S. §
2611(2)(C). Under the FLSA, hours of service include
only those hours that an employee actually works; time
off for vacation, holiday, or illness is excluded. 29
U.S.C.S. § 207(e)(2).
Family & Medical Leave Act
> Denials & Requests
[HN6] An employer's failure to provide adequate notice
of Family Medical Leave Act, 29 U.S.C.S. § 2601 et seq.,
procedures may constitute interference with an employee's rights under the Act if it causes the employee to
forfeit the Act's protections.
> Denials & Requests
App. Def. 125
Page 3
Family & Medical Leave Act > Posting & Recordkeeping
[HN7] The Family Medical Leave Act (FMLA), 29
U.S.C.S. § 2601 et seq., requires that employers post
conspicuous notices of pertinent FMLA requirements. 29
U.S.C. § 2619(a); 29 C.F.R. § 825.300(a) (1994). In addition, FMLA regulations promulgated by the United
States Department of Labor provide that information
concerning FMLA entitlements and obligations must be
included in any written materials, such as an employee
handbook, advising employees of the employer's benefits
or leave policies. 29 C.F.R. § 825.301(a)(1). Whether or
not such written materials are distributed, when an employee provides notice of the need for FMLA leave, the
employer shall provide the employee with notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to
meet these obligations. 29 C.F.R. § 825.301(c).
[HN8] Title VII of the Civil Rights Act of 1964 provides,
inter alia, that it is unlawful for an employer to discharge
any individual, or otherwise to discriminate against any
individual with respect to her compensation, terms, conditions, or privileges of employment, because of such
individual's sex. 42 U.S.C.S. § 2000e-2(a)(1).
> Adoption & Maternity
[HN9] See 42 U.S.C.S. § 2000e(k).
Production & Proof > General Overview
Proof > Initial Burden of Persuasion
[HN10] In determining a motion for summary judgment
in a Title VII case, the district court's analysis must track
the burden-shifting scheme that guides the trial of such
cases. Under this scheme, the plaintiff bears the initial
burden of establishing a prima facie case of employment
discrimination by showing by a preponderance of the
evidence that: (1) she is a member of a protected class;
(2) she satisfactorily performed the duties required by the
position; (3) she was discharged; and (4) the discharge
occurred under circumstances giving rise to an inference
of unlawful discrimination.
Evidence > Inferences & Presumptions > General
Overview
Proof > Allocation
Proof > Ultimate Burden of Persuasion
[HN11] Establishment of a prima facie case creates an
initial presumption of unlawful discrimination. If the
plaintiff does demonstrate a prima facie case and a presumption of unlawful discrimination thereby arises, the
burden of production shifts to the employer to articulate
a legitimate, non-discriminatory reason for terminating
the plaintiff. Any such reason will suffice; the employer
need not persuade the court that it was actually motivated
by the proffered reasons' in order to nullify the presumption and obligate the plaintiff to satisfy the burden of
proof. If the employer satisfies this burden of production,
the presumption of discrimination simply drops out of
the picture. At this stage, a plaintiff may prevail only if
she shows by a preponderance of the evidence that the
employer's proffered explanation is a pretext for discrimination, either because the pretext finding itself
points to discrimination or because other evidence in the
record points in that direction -- or both.
& Sex Discrimination > Employment Practices > Discharges
[HN12] The New York State Human Rights Law provides, inter alia, that it shall be an unlawful discriminatory practice for an employer to discharge or otherwise
discriminate against any employee because of her gender
or disability. N.Y. Exec. Law § 296(1)(a).
General Overview
[HN13] Filing a timely charge with the EEOC, although
not a jurisdictional prerequisite, is a statutory condition
precedent to commencing a federal court action under
App. Def. 126
Page 4
the Americans with Disabilities Act, 42 U.S.C.S. 12101
et seq. 42 U.S.C.S. §§ 2000e-5(e), 42 U.S.C.S. §
122117(a). However, a federal court may entertain a
claim not alleged in an EEOC charge if it is "reasonably
related" to the allegations in the EEOC charge. A claim
is "reasonably related" where, inter alia, the conduct
complained of would fall within the 'scope of the EEOC
investigation which can reasonably be expected to grow
out of the charge of discrimination. The proper focus of
this inquiry lies in the factual allegations of the EEOC
charge.
that affects one or more body systems. 29 C.F.R. §
1630.2(h)(1) (1996). "Major life activities" includes, but
is not limited to, functions such as caring for oneself,
performing manual tasks, and working. 29 C.F.R. §
1630.2(i). An individual is "substantially limited" by an
impairment if she is significantly restricted as to the condition, manner, or duration under which she can perform
a particular major life activity as compared to the condition, manner, or duration under which the average person
in the general population can perform the same major life
activity. 29 C.F.R. § 1630.2(j)(1)(ii)
Overview
Labor & Employment Law > Discrimination > Disability Discrimination > Employment Practices > Discharges & Failures to Hire
U.S.C.S. § 12101 et seq., prohibits covered employers
from discriminating against a qualified individual with a
disability because of the disability of such individual in
regard to, inter alia, discharge from employment. 42
U.S.C.S. § 12112(a). In order to survive an employer's
motion for summary judgment, a plaintiff must establish
a prima facie case of discrimination under the ADA by
producing evidence sufficient to support a reasonable
inference of discrimination. In order to establish a prima
facie case under the ADA, a plaintiff must show that: (1)
she is "disabled" within the meaning of the ADA; (2) she
is otherwise qualified to perform the essential functions
of her job, with or without reasonable accommodation;
and (3) she was discharged because of her disability.
[HN17] Under the subjective, "perceived disability"
standard of the Americans with Disabilities Act, 42
U.S.C.S. § 12101 et seq., a plaintiff must show that her
employer perceived her as having an impairment substantially limiting a major life activity. 42 U.S.C.S. §
12102(2)(C). That an employer deems an employee incapable of performing a particular job is insufficient; the
employer must perceive the employee as generally unable to work.
Overview
[HN15] See 42 U.S.C.S. § 12102(2)(a-c).
[HN16] With respect to the first prong of the definition
of "disabled" under the Americans with Disabilities Act,
42 U.S.C.S. § 12101 et seq., courts consider (1) whether
the plaintiff's condition is a physical or mental impairment; (2) whether that impairment affects a major life
activity; and (3) whether the major life activity is substantially limited by the impairment. A "physical or mental impairment" is a physiological disorder or condition
Pensions & Benefits Law > Employee Retirement Income Security Act (ERISA) > Civil Claims & Remedies
> General Overview
Pensions & Benefits Law > Employee Retirement Income Security Act (ERISA) > Civil Penalties
Pensions & Benefits Law > Employee Retirement Income Security Act (ERISA) > Disclosure, Notice & Reporting > Summary Plan Description
[HN18] Section 104(b)(4) of the Employee Retirement
Income Security Act (ERISA) requires that an administrator of an employee benefits plan shall, upon written
request of any participant, furnish a copy of the latest
updated summary plan description. 29 U.S.C.S. §
1024(b)(4). Section 502(c) provides that an administrator
who fails or refuses to comply with such a request within
30 days may, in the court's discretion, be held personally
liable to the participant. 29 U.S.C.S. § 1132(c)(1). The
statute commits the assessment of penalties to the district
court's sound discretion. In determining whether a plaintiff is entitled to a statutory award, the two primary factors courts have considered are prejudice to the participant and bad faith on the part of the administrator. Other
App. Def. 127
Page 5
factors include the length of the delay and the number of
requests made by the plaintiff.
("ERISA"), 29 U.S.C. § 1132(c), and recovery under
state law for intentional infliction of emotional distress. 2
Torts > Intentional Torts > Intentional Infliction of
Emotional Distress > Elements
[HN19] A claim for intentional infliction of emotional
distress requires that the defendant's conduct be so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society. An intentional infliction of emotional distress
claim has four elements: (1) extreme and outrageous
conduct; (2) intent to cause, or disregard of a substantial
probability of causing, severe emotional distress; (3) a
causal connection between the outrageous conduct and
injury; and (4) severe emotional distress.
1 Lacoparra's original complaint, dated October
6, 1995, did not contain an ADA claim.
2 In her Amended Complaint, Lacoparra also
asserted a claim for negligent infliction of emotional distress (Eighth Cause of Action) and, after
seeking and receiving leave to amend her original
complaint, a claim under Section 510 of the Employee Retirement Income Security Act, 29
U.S.C. § 1140 (Fourth Cause of Action). She has
withdrawn these claims. (See Pl. Memorandum of
Law in Opposition to Def. Motion for Summary
Judgment and in Support of Pl. Cross-Motion for
Partial Summary Judgment ("Pl. Mem."), at 26,
31 n.10.)
COUNSEL: TODD J. KROUNER, ESQ., ELIZABETH
R. MICHEL, ESQ., Of Counsel, LAW OFFICES OF
TODD J. KROUNER, Chappaqua, New York, for Plaintiff.
PAUL J. SIEGEL, ESQ., Of Counsel, JACKSON,
LEWIS, SCHNITZLER & KRUPMAN, Woodbury,
New York, for Defendant.
MARC S. WENGER, ESQ., Of Counsel, PERGAMENT
HOME CENTERS, INC., Executive Offices/General
Counsel, Melville, New York, for Defendant.
JUDGES: William C. Conner, Senior United States District Judge.
OPINION BY: William C. Conner
OPINION
[*216] OPINION AND ORDER
Conner, Senior D.J.:
Plaintiff Carolann Lacoparra brings this action
against Pergament Home Centers, Inc. ("Pergament"),
her former employer, alleging that Pergament wrongfully
terminated her in violation of the Family and Medical
Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq.;
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq., as amended by the Pregnancy Discrimination [*217] Act ("PDA"), 42 U.S.C. § 2000e(k); the
Americans with Disabilities Act ("ADA"), [**2] 42
U.S.C. § 12101, et seq.; 1 and the New York State Human
Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. In addition, Lacoparra seeks sanctions under Section 502(c) of
the Employee Retirement Income Security Act of 1974
Pergament moves for summary judgment on all
claims; Lacoparra [**3] cross-moves for summary
judgment on her ERISA claim. Having considered both
motions, we grant summary judgment in favor of Pergament with respect to all claims and accordingly deny
Lacoparra's cross-motion.
Background
Carolann Lacoparra was hired in October 1992 as a
full-time hourly associate in Pergament's Peekskill store.
Lacoparra elected to participate in Pergament's health
and life insurance plans.
At the end of March 1993, Lacoparra commenced a
maternity leave. At the time, Pergament had an unwritten
policy permitting employees an unpaid twelve-week
leave of absence for medical reasons. Toward the end of
August 1993, after an absence of approximately five
months, Lacoparra returned to work at the Peekskill store
in substantially the same position.
On April 15, 1994, Lacoparra began another maternity leave. The leave was necessitated by complications
Lacoparra was having with her pregnancy. At the time of
this second leave, Pergament had adopted an unpaid
leave policy pursuant to the Family and Medical Leave
Act of 1993 ("FMLA"), which was enacted around the
time Lacoparra returned from her first maternity leave.
Pergament's FMLA policy was substantially the same as
[**4] its pre-FMLA policy: twelve weeks of unpaid
leave per year.
After she began the second maternity leave, six
months passed without any contact between Lacoparra
and Pergament. Lacoparra, despite shopping at the
Peekskill store several times during those six months,
made no attempt to notify Pergament about when or
whether she intended to return to work. At the same
time, even after the twelve-week period had expired and
App. Def. 128
Page 6
despite continuing to pay Lacoparra's portion of her
medical insurance premiums, Pergament never contacted
Lacoparra to inquire about her progress or intended return date.
On or about October 13, 1994, Pergament terminated Lacoparra. It did not notify her of her discharge.
Discussion
I. Summary Judgment Standard
[HN1] Summary judgment is appropriate if "the
and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(d). A genuine issue for
trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-moving party.
[**5] Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed
and all inferences must be drawn in the light most favorable to the non-moving party. City of Yonkers v. Otis
Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).
[HN2] The party seeking summary judgment bears
the initial burden of "informing the district court of the
basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of
material fact." Celotex Corp. v. Catrett, 477 U.S. 317,
323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Upon the
movant's satisfying [*218] that burden, the onus then
shifts to the non-moving party to "set forth specific facts
showing that there is a genuine issue for trial." Anderson,
477 U.S. at 250. At this stage, the non-moving party
"must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment.
[**6] Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.
1991); Western World Ins. Co. v. Stack Oil, Inc., 922
F.2d 118, 121 (2d Cir. 1990).
[HN3] Summary judgment should be employed
sparingly in employment discrimination cases where the
employer's intent, motivation, or state of mind are at issue. Gallo v. Prudential Residential Servs., 22 F.3d
1219, 1224 (2d Cir. 1994); Dister v. Continental Group,
Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (citing Meiri v.
Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). A plaintiff
"must nevertheless offer 'concrete evidence from which a
reasonable juror could return a verdict in [her] favor,'
Liberty Lobby, 477 U.S. at 256 . . ., and is not entitled to
a trial simply because the determinative issue focuses
upon the defendant's state of mind." Dister, 859 F.2d at
1114. Moreover, "the summary judgment rule would be
rendered sterile . . . if the mere incantation of intent or
state of mind would operate as a talisman to defeat an
otherwise valid motion. Indeed, the salutary purposes of
summary judgment -- avoiding protracted, expensive,
and harassing trials -- apply no less to discrimination
cases than to commercial or other areas of litigation."
[**7] Meiri, 759 F. Supp. at 998; cf. McLee v. Chrysler
Corp., 38 F.3d 67 (2d Cir. 1994) (issuing writ of mandamus where district judge, under the impression that the
Second Circuit had precluded grants of summary judgment in employment discrimination cases, declined to
consider whether summary judgment was appropriate).
This is particularly true where, as here, full discovery has
taken place. Dister, 859 F.2d at 1114.
II. Family and Medical Leave Act
In her First Cause of Action, Lacoparra claims that
her termination was in violation of the Family and Medical Leave Act of 1993 ("FMLA").
The FMLA was enacted to balance the demands of
the workplace with the needs of families by enabling
workers to take reasonable leave to care for children and
sick family members. See 29 U.S.C. § 2601(b). [HN4]
The FMLA entitles eligible employees to take up to
twelve weeks of unpaid leave in a twelve-month period
because of, inter alia, the birth of a child or a serious
health condition that makes the employee unable to perform the functions of her job. Id. § 2612(a). Following
such a leave, the employee is entitled to reinstatement to
her former position or an equivalent one. [**8] Id. §
2614(a). The FMLA prohibits employers from interfering with, restraining, or denying the exercise of any right
provided by the statute. Id. § 2615(a)(1).
The parties disagree as to whether Lacoparra was
ever eligible for FMLA benefits. [HN5] The FMLA defines an "eligible employee" as one who has been employed (1) for at least twelve months by the current employer, and (2) for at least 1250 hours of service with
that employer during the previous twelve-month period.
Id. § 2611(2)(A). To determine "hours of service," the
FMLA instructs that the legal standards employed by the
Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207,
shall apply. Id. § 2611(2)(C). Under the FLSA, hours of
service include only those hours that an employee actually works; time off for vacation, holiday, or illness is
excluded. Id. § 207(e)(2).
According to Pergament's records, Lacoparra
worked 1195.8 hours during the twelve-month period
preceding her 1994 leave -- 54.2 hours short of qualifying for FMLA benefits. (See Def. Statement of Uncon-
App. Def. 129
Page 7
tested Facts Pursuant to Local Rule 3(g) in Support of its
Motion for Summary Judgment ("Def. Rule 3(g) Statement") P 21, and Exh. D annexed [**9] thereto.) 3 Lacoparra challenges [*219] this total on four grounds. First,
she contends that Pergament's record cannot be corroborated. (Pl. Mem. at 12.) In response to this argument,
Pergament points out that Lacoparra is now seeking to
discredit the time records upon which she was paid and
to which she never previously objected. (Def. Memorandum of Law in Reply to Pl. Memorandum of Law in Opposition to Def. Motion for Summary Judgment and in
Opposition to Pl. Cross-Motion for Partial Summary
Judgment ("Def. Reply Mem."), at 5.) Regardless, Lacoparra's contention is of no moment unless she can put
forth evidence of her own. 4
3 This calculation was made from a record of
Lacoparra's hours generated by Pergament's payroll database. Pergament explains the procedure
as follows:
During the relevant time period,
employee hours were recorded by
the employees punching in their
employee code numbers on a digital key pad at the stores. This information
was
electronically
transmitted to a central computer
file each evening. At the end of
each week, the key punch data was
converted to payroll data. This information was kept in this form
for approximately 18 months, at
which point it was stored on magnetic tape. The document [from
which the calculation was made]
was generated from the magnetic
tape.
(Def. Response to Request No. 3 of Pl. Fourth
Request for Production of Documents, dated Dec.
2, 1996, attached to Reply Aff. of Deborah
Luckwaldt in Support of Def. Motion for Summary Judgment.)
The record includes the hours Lacoparra
worked from April 1993 to April 1994, and
breaks them down into four categories: regular
hours, overtime hours, eight sick leave hours, and
holiday hours. Over that time period, Lacoparra
logged 1225.2 regular hours, 18.6 overtime
hours, eight sick leave hours, and 40 holiday
hours. (See Def. Rule 3(g) Statement, Exh. D.)
For purposes of the FMLA, then, Pergament's re-
cord reflects that Lacoparra performed 1195.8
hours of service (1225.2 + 18.6 - 8 - 40).
[**10]
4 In her deposition, Lacoparra stated that she
has no copies of her pay stubs or any other records of her hours of employment. (Lacoparra
Dep. at 175-76.)
Second, Lacoparra asserts that Pergament's calculation ignores her "off the clock" hours of service. (Pl.
Mem. at 12.) However, she has provided no evidence of
any such hours.
Third, Lacoparra argues that because she received
Pergament's health and life insurance benefits at all relevant times, she must have worked at least 1250 hours.
(Id. at 11.) She points out that in order to qualify for the
company's benefits, an employee must be classified as a
"full-time" employee. (See Luckwaldt Dep. at 76.) Lacoparra received health and life insurance benefits at all
times during her employment with Pergament, and her
employee profile form classified her as "full time." (Id.
at 76-77.) Pergament's full-time employees are required
to work at least 40 hours per week. (Id. at 75.) From this
Lacoparra concludes that she must have worked at least
40 hours in each of the 36 weeks for which she received
pay between April 1993 and April 1994 [**11] -- a total
that would put her above the 1250 FMLA minimum.
(See Pl. Mem. at 11.)
For several reasons, Lacoparra's classification as a
full-time employee is not sufficiently probative of
whether she actually worked 40-hour weeks. We need
not explore these reasons, however, for Lacoparra has
herself admitted that since returning from her first maternity leave in August 1993, she rarely worked 40 hours
per week. (See Lacoparra Dep. at 107.) Her own testimony contradicts the inference that she urges and suggests that her argument is less than candid.
Finally, Lacoparra notes that in the FMLA log kept
by Deborah Luckwaldt, Pergament's Manager of Benefits
Administration, Luckwaldt wrote "OK" and signed her
initials in the "Eligibility Checked" box. (See FMLA
Log, Krouner Affirmation, Exh. D.) She argues that this
constitutes an admission on the part of Pergament that
she was eligible for FMLA benefits. (Pl. Mem. at 12.)
We are not inclined to agree. Luckwaldt's testimony suggests that she never actually checked the number of
hours Lacoparra had worked between April 1993 and
April 1994, but rather just assumed that Lacoparra was
eligible because she had been a Pergament employee
[**12] for over twelve months in accordance with the
FMLA and was listed as a full-time employee. (See
Luckwaldt Dep. at 66, 135.) However, without deciding
whether these competing contentions create a jury question, we note that even if we assume that Lacoparra did
App. Def. 130
Page 8
not work the requisite 1250 hours and thus does not fall
under the FMLA's definition of an "eligible employee,"
she may nevertheless be [*220] entitled to FMLA protection if Pergament wrongfully caused her ineligibility.
As noted above, the FMLA states that "it shall be
unlawful for any employer to interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right
provided under" the statute or its regulations. 29 U.S.C. §
2615(a)(1); 29 C.F.R. § 825.220(a), (b). 5 At least one
court has indicated that the failure of an employer to
provide an employee with the statutorily-required notice
of its FMLA policies may interfere with the employee's
exercise of her FMLA rights "by depriving [her] of the
opportunity to choose to remain within the protection of
the FMLA." Fry v. First Fidelity Bancorp., 1996 U.S.
Dist. LEXIS 875, No. 95-6019, 1996 WL 36910, at *4
(E.D. Pa. Jan. 30, 1996). We agree that [HN6] an employer's failure to provide [**13] adequate notice of
FMLA procedures may constitute interference with an
employee's FMLA rights if it causes the employee to
forfeit FMLA protections. See id. at *5. Therefore, even
if Lacoparra falls short of the 1250-hour eligibility
minimum, she can overcome this infirmity if (1) the
shortfall resulted from Pergament failing to provide adequate notice of her FMLA rights and obligations, and (2)
the lack of information actually caused her to forfeit an
FMLA entitlement.
5 The FMLA provides a private right of action
for such violations. See id. § 2617(a).
Lacoparra alleges that Pergament provided insufficient notice of her rights and responsibilities under the
FMLA. [HN7] The FMLA requires that employers post
conspicuous notices of pertinent FMLA requirements.
29 U.S.C. § 2619(a); see also 29 C.F.R. § 825.300(a)
(1994). In addition, FMLA regulations promulgated by
the United States Department of Labor provide that information concerning FMLA entitlements and obligations must be included in any written [**14] materials,
such as an employee handbook, advising employees of
the employer's benefits or leave policies. 29 C.F.R. §
825.301(a)(1). Whether or not such written materials are
distributed, "when an employee provides notice of the
need for FMLA leave, the employer shall provide the
employee with notice detailing the specific expectations
and obligations of the employee and explaining any consequences of a failure to meet these obligations." Id. §
825.301(c). 6
6 For purposes of this motion, the applicable
FMLA regulations are those that were in place in
1994, when the events leading to this action occurred. The interim regulations, which went into
effect on August 5, 1993, were replaced by final
regulations effective February 6, 1995. See 60
Fed. Reg. 2180, 2181 (Jan. 6, 1995). However,
FMLA regulations cannot be applied retroactively. See Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208, 102 L. Ed. 2d 493, 109 S. Ct.
468 (1988) (regulations, like statutes, will not be
construed to apply retroactively absent express
direction to do so); Johnson v. Primerica, 1996
U.S. Dist. LEXIS 869, No. 94-4869, 1996 WL
34148, at *7 n.9 (S.D.N.Y. Jan. 30, 1996)
(FMLA regulations not applied retroactively).
Therefore, the interim regulations govern the instant action.
[**15] Lacoparra claims that Pergament never notified her of the requirements of its FMLA policy and consequently deprived her of her "substantive right to reinstatement at the end of her pregnancy leave." (Pl. Mem.
at 13.) Moreover, Lacoparra asserts that Pergament never
notified her that she could be terminated if her maternity
leave exceeded twelve weeks. (Letter from Todd
Krouner to Donald Jacobson, dated Nov. 2, 1994, attached as Exh. C to Krouner Aff.) Pergament maintains
that it fully informed Lacoparra of the FMLA eligibility
requirements and procedures. Deborah Luckwaldt, Pergament's Manager of Benefits Administration, testified
that Pergament distributed to each store a poster communicating employees' FMLA rights, along with a memo
directing store managers to make their employees aware
of the information. (Luckwaldt Dep. at 19-20.) Scott
Sottile, the manager of the Pergament store at which Lacoparra worked, testified that the FMLA information was
posted by the employee time clock. (Sottile Dep. at 128.)
In addition, Luckwaldt testified that around the time Lacoparra began her 1994 maternity leave, they had a telephone conversation during which Luckwaldt advised
Lacoparra of the [**16] eligibility requirements (including the 1250-hour minimum), that during the conversation she told Lacoparra that she would mail relevant
FMLA documents to Lacoparra's home address, and
[*221] that soon after the conversation she did in fact
mail the FMLA papers to Lacoparra and recorded that
she had done so in the FMLA log. (See Luckwaldt Dep.
at 27, 44-50, 66.)
Lacoparra flatly denies receiving any notice from
Pergament -- via mail, poster, or otherwise -- of her
rights and obligations under the FMLA prior to her termination in October 1994. (Pl. Statement of Material
Facts Pursuant to Local Rule 3(g) in Opposition to Defendant's Motion for Summary Judgment ("Pl. Rule 3(g)
Statement") P 5; Pl. Mem. at 4.) She maintains that if she
had known about the 1250-hour requirement, she could
and would have worked the extra hours needed to qualify
for FMLA protection. (Pl. Mem. at 5.) Arguably, then,
Lacoparra's blanket denial is sufficient for summary
App. Def. 131
Page 9
judgment purposes to establish that her ineligibility was
caused by Pergament's insufficient notice of her FMLA
obligations.
Curiously, however, Lacoparra is unable to demonstrate that this matters. She claims that Pergament denied
her the two [**17] primary perquisites of FMLA protection: continuing insurance benefits and reinstatement.
(See Am. Compl. P 8; Pl. Mem. at 13.) Yet her own testimony is to the contrary.
To begin with, Lacoparra provides no evidence that
Pergament failed to fulfill its statutory obligation to
maintain her health benefits while she was on leave. See
29 U.S.C. § 2614(c)(1); 29 C.F.R. § 825.209. On the
contrary, Lacoparra does not deny that Pergament not
only maintained her health coverage while she was on
leave, but also paid her share of the premiums for those
six months. (See Def. Rule 3(g) Statement P 31.) Pergament was under no obligation to do this; indeed, FMLA
regulations require employees to pay their share of premium payments while on leave. 29 C.F.R. § 825.210;
see also id. § 825.212. It appears that Lacoparra made no
payments. (See Luckwaldt Dep. at 144.) 7 Moreover,
upon terminating Lacoparra, Pergament provided Lacoparra with the forms she needed to obtain continued
health care coverage under the Consolidated Omnibus
Budget Reconciliation Act ("COBRA"). 8 (See Lacoparra
Dep. at 160-62; Def. Rule 3(g) Statement P 39.) Lacoparra applied for and received COBRA [**18] coverage.
(See Lacoparra Dep. at 157.) As a result of the health
insurance Pergament maintained while she was on leave
and the COBRA coverage she received after her termination, all of Lacoparra's leave-related medical bills were
paid in full by Pergament's health insurance carrier. (Lacoparra Dep. at 32; Def. Rule 3(g) Statement P 40.) Consequently, Lacoparra has received all of the health care
benefits to which the FMLA entitled her, even without
paying her share of the premiums.
10; Pl Mem. at 14, 16-17.) This assertion is entirely disingenuous. Lacoparra -- or rather her attorney, Todd J.
Krouner -- bases this "statement of fact" on an October
20, 1994 letter sent by Krouner to Donald Jacobson, Pergament's general counsel. (See Letter, dated Oct. 20,
1994, attached as Exh. A to Wenger Aff.) In this letter,
written about one week after Lacoparra's termination,
Krouner demanded her reinstatement. Jacobson responded by stating that "when and if [Lacoparra] is able
to return to work, she may reapply for a position." (Letter, dated Oct. 26, 1994, attached as Exh. B to Wenger
Aff.) Krouner followed with a letter informing Jacobson,
inter alia, that Lacoparra would file a complaint with the
Equal Employment Opportunity Commission. (See Letter, dated Nov. 2, 1994, attached as Exh. C to Wenger
Aff.) Jacobson once again responded by indicating that
"when and if your client is able and desires to return to
work, you may contact me if she is [**20] unaware
[*222] of the procedure for possible reinstatement."
(Letter, dated Nov. 15, 1994, attached as Exh. D to
Wenger Aff.)
Subsequently, although Lacoparra knew about Pergament's offer, she never contacted Pergament about
reinstatement (either before or after she was physically
able to return to work in January 1995). (See Lacoparra
Dep. at 129-32.) Lacoparra cannot now complain that
Pergament never reinstated her when she ignored Pergament's suggestions that she apply for reinstatement.
Therefore, we find that even if Lacoparra qualified
for FMLA protection or, alternatively, even if Pergament
caused her ineligibility by failing to properly notify her
of FMLA requirements, Lacoparra's own evidence contradicts her assertion that Pergament denied her benefits
to which the FMLA would have entitled her. Accordingly, we grant Pergament's motion for summary judgment with respect to Lacoparra's FMLA claim.
III. Title VII and the Pregnancy Discrimination Act
7 Although Pergament seems to have provided
health coverage in excess of the FMLA requirements, this generosity appears not to have been
the product of benevolence, but of administrative
oversight. (See Luckwaldt Dep. at 144.)
8 The Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. § 1161, et seq., requires
sponsors of group health care plans to provide
continuation coverage for terminated employees
under certain circumstances. Local 217, Hotel &
Restaurant Employees Union v. MHM, Inc., 976
F.2d 805, 806-07 (2d Cir. 1992).
[**19] Nor did Pergament deny her the FMLA's
employment protection. In her motion papers, Lacoparra
states that shortly after her termination, she requested but
was denied reinstatement. (See Pl. Rule 3(g) Statement P
As a Second Cause of Action, Lacoparra claims that
Pergament terminated her in violation of Title VII and
the Pregnancy Discrimination Act.
[HN8] Title VII of the Civil Rights Act of 1964 provides, inter alia, that it is unlawful [**21] for "an employer to . . . discharge any individual, or otherwise to
discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." 42
U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination
Act of 1978 ("PDA"), codified at 42 U.S.C. § 200e(k), is
a definitional amendment to Title VII enacted to include
pregnancy-based discrimination in Title VII's prohibition
of gender-based employment discrimination. 9 McNill v.
App. Def. 132
Page 10
New York City Dep't of Correction, 950 F. Supp. 564,
569 (S.D.N.Y. 1996).
9 [HN9] The PDA provides, in relevant part:
The terms "because of sex" or
"on the basis of sex" include, but
are not limited to, because of or on
the basis of pregnancy, childbirth,
or related medical conditions; and
women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same
for all employment-related purposes, including receipt of benefits
under fringe benefit programs, as
other persons not so affected but
similar in their ability or inability
to work . . . ."
42 U.S.C. § 2000e(k).
[**22] [HN10]
In determining a motion for summary judgment in a
Title VII case, the district court's analysis must track the
burden-shifting scheme that guides the trial of such
cases. Under this scheme, the plaintiff bears the initial
burden of establishing a prima facie case of employment
discrimination by showing by a preponderance of the
evidence that: (1) she is a member of a protected class;
(2) she satisfactorily performed the duties required by the
position; (3) she was discharged; and (4) the discharge
occurred under circumstances giving rise to an inference
of unlawful discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed.
2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 & n.13, 36 L. Ed. 2d
668, 93 S. Ct. 1817 (1973); Quaratino v. Tiffany & Co.,
71 F.3d 58, 64 (2d Cir. 1995). 10 [HN11] Establishment
of a prima facie case creates an initial presumption of
unlawful discrimination. Burdine, 450 U.S. at 254.
10 The elements of the prima facie case may
vary according to the facts relevant to the specific
claim of discrimination. See McDonnell Douglas,
411 U.S. at 802 n.13; Montana v. First Fed. Sav.
& Loan Ass'n, 869 F.2d 100, 104 (1989).
Additionally, the burden-shifting framework
does not alter the fact that the plaintiff at all times
bears the ultimate burden of persuading the trier
of fact that the defendant unlawfully discriminated against her. See Quaratino, 71 F.3d at 64.
[**23] The burden of establishing a prima facie
case "is not onerous." Fisher v. Vassar College, 114 F.3d
1332, 1335 (2d Cir. 1997) (quoting Burdine, 450 U.S. at
253). However, the fact that a plaintiff has satisfied these
minimal prima facie elements "is no indication that, at
the end of the case, plaintiff will have enough evidence
of discrimination to support a verdict" in her favor. Id. at
1337. 11 Rather, the prima facie [*223] case "raises an
inference of discrimination only because we presume
these acts, if otherwise unexplained, are more likely than
not based on the consideration of impermissible factors."
Levin v. Analysis & Tech., Inc., 960 F.2d 314, 316 (2d
Cir. 1992) (quoting Burdine, 450 U.S. at 254). In essence, the presumption temporarily excuses the plaintiff
from having to show that discrimination actually existed
and caused the termination. Fisher, 114 F.3d at 1337.
11 See also id. at 1337 ("discrimination cases
differ from many areas of law in that under the
McDonnell Douglas burden-shifting framework a
plaintiff's satisfaction of the minimal requirements of the prima facie case does not necessarily
mean, even if the elements of the prima facie case
go unchallenged, that plaintiff will ultimately
have sufficient evidence to support a verdict on
each element that plaintiff ultimately must prove
to win the case").
[**24] If the plaintiff does demonstrate a prima facie case and a presumption of unlawful discrimination
thereby arises, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for terminating the plaintiff. Any such reason will
suffice; the employer "'need not persuade the court that it
was actually motivated by the proffered reasons' in order
to nullify the presumption and obligate the plaintiff to
satisfy the burden of proof." Id. at 1335-36 (quoting
Burdine, 450 U.S. at 254).
If the employer satisfies this burden of production,
the presumption of discrimination "simply drops out of
the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 510, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993) (citing Burdine, 450 U.S. at 254). At this stage, a plaintiff
may prevail only if she shows by a preponderance of the
evidence that the employer's proffered explanation is a
pretext for discrimination, "either because the pretext
finding itself points to discrimination or because other
evidence in the record points in that direction -- or both."
Fisher, 114 F.3d at 1339; see also Hicks, 509 U.S. at
515-16 (citing Burdine, 450 U.S. at 253). [**25] A
plaintiff does not win merely by proving the asserted
reason to be false; rather, an employer's proffered reason
must be false and its real reason must be unlawful discrimination. Hicks, 509 U.S. at 515-16; Fisher, 114 F.3d
at 1338-39; Quaratino, 71 F.3d at 64. In other words,
App. Def. 133
Page 11
with the presumption no longer operating, "the question
becomes the same question asked in any other civil case:
Has the plaintiff shown, by a preponderance of the evidence, that the defendant is liable for the alleged conduct?" Fisher, 114 F.3d at 1336.
Turning to the instant action, we will assume for
present purposes that Lacoparra can establish a prima
facie case of discrimination for summary judgment purposes. Cf. Owens v. Waldorf-Astoria Corp., 1997 U.S.
Dist. LEXIS 6646, No. 92-4561, 1997 WL 251556, at *3
(S.D.N.Y. May 13, 1997) (assuming arguendo that plaintiff could establish prima facie case); Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144, 155 (N.D.N.Y.
1997) (same). Nonetheless, the reason for the termination
proffered by Pergament suffices to rebut the prima facie
presumption. Pergament maintains that Lacoparra was
discharged because she had more than exhausted the
twelve weeks of [**26] maternity leave that Pergament,
pursuant to the FMLA, allowed to its employees. (Def.
Rule 3(g) Statement PP 33-36; Def. Mem. at 14.) This
explanation constitutes a legitimate, non-discriminatory
rationale for Lacoparra's termination.
Accordingly, the prima facie presumption of discrimination is dispelled and the burden shifts back to
Lacoparra to offer evidence sufficient to require a jury to
decide whether Pergament's proffered justification is in
fact a pretext for discrimination. Lacoparra must provide
proof not only that Pergament's explanation is false, but
also that unlawful discrimination was its true motivation
in terminating her. See Hicks, 509 U.S. at 515-16;
Fisher, 114 F.3d at 1338-39. Lacoparra can do neither.
In support of its motion for summary judgment, Pergament provides the following description of the circumstances surrounding Lacoparra's termination. Until the
spring of 1994, Pergament's payroll department was responsible for monitoring leaves of absence. The payroll
department would [*224] audit employee time cards
and would initiate the termination of any employee
found to have exceeded the twelve-week maximum. At
some point in the spring of 1994 -- around [**27] the
time Lacoparra began her maternity leave -- Pergament
transferred the responsibility of monitoring leave periods
and initiating terminations from the payroll department
to the store managers. (Luckwaldt Dep. at 10-11, 59, 64.)
However, this change seems not to have been communicated to the store managers. (See id. at 10-11, 64; Sottile
Dep. at 140.)
Apparently, then, during the six months that Lacoparra was on leave, neither the payroll department nor
Lacoparra's manager, Scott Sottile, was monitoring Pergament employees' disability leaves. (See Luckwaldt
Dep. at 11.) Lacoparra's six-month absence seems to
have escaped Pergament's notice until mid-October,
when (after Lacoparra had gone shopping at the Peekskill store) murmurs about Lacoparra's prolonged leave
and continuing benefits reached Sottile's ears. (See Sottile Dep. at 141-42.) After receiving this information
through the "grapevine," Sottile contacted Deborah
Luckwaldt, the Manager of Benefits Administration, and
asked her what the procedure was for employees out on
medical leave. (Id.; Luckwaldt Dep. at 12.) Luckwaldt
informed Sottile of the twelve-week maximum. When
Sottile told her that he was asking [**28] in reference to
Lacoparra, Luckwaldt retrieved Lacoparra's employee
file from the mainframe and discovered that she had been
out since April. Luckwaldt then informed Sottile that,
pursuant to the new monitoring procedure, it was his
responsibility to initiate Lacoparra's termination. (Luckwaldt Dep. at 12.) After a series of e-mails between Sottile and Luckwaldt confirming Lacoparra's extended absence and consequent termination, on October 13 Luckwaldt directed the payroll department to terminate Lacoparra. (See id. at 97-98; Sottile Dep. at 137-39.)
Lacoparra's evidence is wholly insufficient to support her contention that Pergament's explanation is false
and that her termination was motivated by unlawful discrimination. Her discrimination theory unfolds into three
parts. First, Lacoparra asserts that Pergament applied its
leave policy against her in a discriminatory fashion. 12 In
essence, she claims that because (1) in 1993 (when Pergament's unwritten, pre-FMLA policy was in force) she
was able to take a five-month maternity leave and return
to work, and (2) store manager Sottile testified that the
leave policy in effect in 1993 was no different than its
1994 policy, then [**29] (3) Pergament's decision in
October 1994 (when the FMLA policy had been implemented) to terminate her in the midst of a six-month (and
counting) maternity leave must have been motivated by
pregnancy discrimination. (See Pl. Mem. at 7-8, 17-19.)
12 Lacoparra concedes that on its face and as
applied to other employees, Pergament's leave
policy did not discriminate on the basis of gender
or pregnancy. (See Lacoparra Dep. at 217.)
Second, Lacoparra contends that the timing of her
termination indicates that she was discharged because of
her pregnancy. Because Pergament could have terminated her in July 1994 (twelve weeks after her leave began), its choice not to terminate her until October 1994
(when she was in her third trimester) demonstrates that
the "imminent birth of her child" was the "catalyst" for
her termination. (Pl. Mem. at 8.) Third, Lacoparra maintains that Pergament's failure to notify her of her termination is "equally troubling." (Id.) Apparently, Lacoparra
infers from Pergament's silence [**30] then that it is
lying now.
App. Def. 134
Page 12
With respect to these first three points, we find that
Lacoparra's inferential leaps prove neither that Pergament's explanation is pretextual nor that its real motivation was pregnancy discrimination. At best, the facts
present the story of an employer who devoted little attention to monitoring its employees' medical leaves; who
allowed an employee to return to work after a five-month
maternity leave with, apparently, no questions asked;
who, after permitting that same employee to take another
maternity leave the following year, seems to have forgotten about her until, by chance, it realized that she had
been gone for twice the allotted leave time; and who then
fired her. At the same time, we have an employee who
claims to have received no notice of the [*225] maximum twelve-week leave (despite her employer's insistence that it provided this information through a variety
of channels); who leaves work and remains incommunicado for an indefinite period; who fully expects her employer to maintain her benefits and position indefinitely;
and who is shocked to discover that, after six months off
the job without once speaking to her employer, she has
been deemed to have [**31] abandoned her job. Although inattention and errors of judgment appear to have
plagued both parties, we detect no subplot of discrimination.
Fourth, and finally, "at the heart of [Lacoparra's]
PDA claim" are four comments allegedly made by Sottile as evidence that her termination was motivated by
unlawful discrimination. (Pl. Mem. at 2.) After Lacoparra had returned from her 1993 maternity leave, Sottile
allegedly told her that she "worked better before [she]
left." (Lacoparra Dep. at 101.) Lacoparra also testified
that Sottile told her that she "cost [Pergament] money."
(Id. at 83.) In addition, upon learning that Lacoparra was
taking another leave for pregnancy complications, Sottile
allegedly said, "Here we go again." (Id. at 88.) Finally,
one day while Lacoparra was up on a ladder, Sottile allegedly commented, "this is a nice view." (Id. at 101.)
We find that Sottile's purportedly discriminatory remarks are far too ambiguous and insubstantial to support
the "heart" of a Title VII discrimination claim. Random
remarks in the workplace, without a demonstrated nexus
to an employee's termination, are insufficient to create a
material issue of fact to defeat an employer's [**32]
motion for summary judgment. See Bellom v. Neiman
Marcus Group, Inc., 975 F. Supp. 527, 1997 WL 535234,
at *4 (S.D.N.Y. 1997); Bern v. United Mercantile Agencies, 942 F. Supp. 217, 220 (S.D.N.Y. 1996) (citing
O'Connor v. Viacom, Inc., 1996 U.S. Dist. LEXIS 5289,
No. 93-2399, 1996 WL 194299, at *5 (S.D.N.Y.) (collecting cases), aff'd, 104 F.3d 356 (2d Cir. 1996)). The
comments attributed to Sottile are ambiguous and temporally removed from the termination, and shed no light on
whether the actual decision to discharge Lacoparra was
motivated by any kind of discriminatory intent.
In sum, Lacoparra has presented no evidence of
pregnancy discrimination that would transform her
speculation into a triable issue of fact. Accordingly, we
grant Pergament's motion for summary judgment with
respect to the Title VII and PDA claims.
IV. New York State Human Rights Law
Lacoparra brings a parallel state claim of gender and
pregnancy discrimination under the New York State
Human Rights Law ("NYSHRL") (her Sixth Cause of
Action). Although we are dismissing Lacoparra's federal
claims, we exercise our discretion under 28 U.S.C. §
1367(c) to retain supplemental jurisdiction over her
NYSHRL claim [**33] based on judicial economy and
the close relationship between her federal and state
claims. See Aquinas v. Federal Express Corp., 940 F.
Supp. 73, 79 (S.D.N.Y. 1996); Sweet v. Electronic Data
Sys., Inc., 1996 U.S. Dist. LEXIS 5544, No. 95-3987,
1996 WL 294471, at *3 (S.D.N.Y. Apr. 26, 1996).
[HN12] The NYSHRL provides, inter alia, that it
shall be an unlawful discriminatory practice for an employer to discharge or otherwise discriminate against any
employee because of her gender or disability. N.Y. Exec.
Law § 296(1)(a) (McKinney Supp. 1997). The elements
of an employment discrimination claim are virtually
identical under the NYSHRL and Title VII. Kremer v.
Chemical Constr. Corp., 456 U.S. 461, 479, 72 L. Ed. 2d
262, 102 S. Ct. 1883 (1982); Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996) (citing Miller Brewing Co. v. State Div. of Human Rights, 66
N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745 (1986)).
Therefore, because our Title VII analysis dictates
our determination of the pendent NYSHRL claim, we
grant Pergament's motion for summary judgment with
respect to the latter claim as well.
V. Americans with Disabilities Act
Lacoparra next claims that Pergament [**34] violated the Americans with Disabilities Act ("ADA") by
discharging her because she suffered from a disability
(her Third Cause of Action). As an initial matter, Pergament [*226] asserts that this Court does not have jurisdiction over the ADA claim because the complaint Lacoparra filed with the Equal Employment Opportunity
Commission ("EEOC") failed to allege disability discrimination. [HN13] Filing a timely charge with the
EEOC, although not a jurisdictional prerequisite, 13 is a
statutory condition precedent to commencing a federal
court action under the ADA. See 42 U.S.C. §§ 2000e5(e), 122117(a); Lillien v. M.A.B.S.T.O.A. (MTA), 1996
App. Def. 135
Page 13
711495, at *2 (S.D.N.Y. Dec. 11, 1996); Sank v. City
Univ. of New York, 1995 U.S. Dist. LEXIS 7021, No. 940253, 1995 WL 314696, at *3 (S.D.N.Y. May 24, 1995);
See also Butts v. City of New York Dep't of Housing
Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir.
1993) (Title VII).
13 Technically, the exhaustion requirement is
not jurisdictional, but rather has been treated like
a statute of limitations. See Zipes v. Trans World
Airlines, 455 U.S. 385, 392-98, 71 L. Ed. 2d 234,
102 S. Ct. 1127 (1982); Williams v. Borough of
Manhattan Community College, 1996 U.S. Dist.
LEXIS 11687, No. 94-4304, 1996 WL 457322, at
*3 (S.D.N.Y. Aug. 14, 1996); Walsh v. National
Westminster Bancorp., 921 F. Supp. 168, 171
(S.D.N.Y. 1995).
The purpose of this statutory prerequisite is
"to encourage settlement of discrimination disputes through conciliation and voluntary compliance." Butts v. City of New York Dep't of Housing
Preservation and Dev., 990 F.2d 1397, 1401-02
(2d Cir. 1993); See also Stewart v. United States
Immigration and Naturalization Serv., 762 F.2d
193, 198 (2d Cir. 1985) ("the purpose of the exhaustion requirement . . . is to give the administrative agency the opportunity to investigate, mediate, and take remedial action").
[**35] However, a federal court may entertain a
claim not alleged in an EEOC charge if it is "reasonably
related" to the allegations in the EEOC charge. Butts,
990 F.2d at 1402. A claim is "reasonably related" where,
inter alia, "the conduct complained of would fall within
the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Id. (quoting Smith v. American President Lines,
Ltd., 571 F.2d 102, 107 n.2 (2d Cir. 1978)). The proper
focus of this inquiry lies in the factual allegations of the
EEOC charge. Williams v. Borough of Manhattan
Community College, 1996 U.S. Dist. LEXIS 11687, No.
94-4304, 1996 WL 457322, at *8 (S.D.N.Y. Aug. 14,
1996), aff'd, 113 F.3d 1230 (2d Cir. 1997); Bridges v.
Eastman Kodak Co., 822 F. Supp. 1020, 1026 (S.D.N.Y.
1993).
In the instant action, Lacoparra filed a complaint
with the EEOC on July 18, 1995. (EEOC Complaint,
attached as Exh. D to Def. Rule 3(g) Statement.) On the
front of the EEOC complaint form, Lacoparra checked
the "cause of discrimination" boxes for "sex" and
"other"; next to the "other" box she typed in "pregnancy." In an attached factual statement, Lacoparra
charged that she "was terminated [**36] by Pergament .
. . while on disability leave for a problem pregnancy. . . .
Such termination by Pergament constitutes a discrimina-
tory act under Title VII [as amended by the Pregnancy
Discrimination Act]." Pergament maintains that a disability claim is not reasonably related to the pregnancy
and gender discrimination claims set forth in the EEOC
charge. Pergament points out that Lacoparra specifically
described her charge as a Title VII/PDA claim and typed
in "pregnancy," rather than "disability," next to the
"other" box. Pergament also notes that Lacoparra never
intended to pursue a disability discrimination claim because she raised it in neither her EEOC complaint nor the
original complaint in this action. Additionally, Pergament argues that the pregnancy/gender claims are not
reasonably related to the disability claim because they
are distinct legal theories. (See Def. Mem. at 20-21.)
Lacoparra responds merely by asserting that "it is hard to
imagine any two claims being more 'reasonably related'
than" the pregnancy and pregnancy-related disability
claims. (Pl. Mem. at 20.)
We find this issue to be a very close call. For present
purposes, however, we will assume arguendo [**37]
that the pregnancy and disability claims are reasonably
related and thus that Lacoparra's ADA claim is properly
before us.
We turn now to the substance of the ADA claim.
[HN14] The ADA prohibits covered employers from
"discriminating against a qualified individual with a disability because of the disability of such individual in
regard to," [*227] inter alia, discharge from employment. 14 42 U.S.C. § 12112(a). In order to survive an employer's motion for summary judgment, a plaintiff must
establish a prima facie case of discrimination under the
ADA by producing evidence sufficient to support a reasonable inference of discrimination. Johnson v. New
York Medical College, 1997 U.S. Dist. LEXIS 14150, No.
95-8413, 1997 WL 580708, at *4 (Sept. 18, 1997). 15 In
order to establish a prima facie case under the ADA, a
plaintiff must show that: (1) she is "disabled" within the
meaning of the ADA; (2) she is otherwise qualified to
perform the essential functions of her job, with or without reasonable accommodation; and (3) she was discharged because of her disability. Christopher v. Laidlaw
Transit Inc., 899 F. Supp. 1224, 1226-27 (S.D.N.Y.
1995); see also Wernick v. Federal Reserve Bank, 91
F.3d 379, 383 (2d Cir. [**38] 1996); Aquinas v. Federal Express Corp., 940 F. Supp. 73, 77 (S.D.N.Y. 1996).
14 The statute defines "qualified individual with
a disability" as "an individual with a disability
who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such individual holds or
desires." 42 U.S.C. § 12111(8).
15 The ADA follows the burden-shifting analysis of Title VII. Thus, if the plaintiff is able to es-
App. Def. 136
Page 14
tablish a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its decision to terminate
the plaintiff. If the employer is able to do so, the
burden shifts back to the plaintiff to show that the
employer's proffered reason is pretextual and that
unlawful discrimination was the actual reason for
the termination. Kolivas v. Credit Agricole, 1996
684167, at *3 (S.D.N.Y. Nov. 26, 1996) (citing
Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722
(2d Cir. 1994) (Rehabilitation Act)), aff'd, F.3d
, 1997 U.S. App. LEXIS 27163, 1997 WL 606742
(2d Cir. 1997).
[**39] Here, the record does not support the conclusion that Lacoparra was "disabled" within the meaning of the ADA. [HN15] The ADA defines "disability"
as either "a physical or mental impairment that substantially limits one or more of the major life activities"; "a
record of such an impairment"; or "being regarded as
having such an impairment." 42 U.S.C. § 12102(2)(a-c).
With respect to the first prong of the definition,
[HN16] courts consider (1) whether the plaintiff's condition is a physical or mental impairment; (2) whether that
impairment affects a major life activity; and (3) whether
the major life activity is substantially limited by the impairment. Cerrato v. Durham, 941 F. Supp. 388, 391-92
(S.D.N.Y. 1996). According to the regulations promulgated by the EEOC, a "physical or mental impairment" is
a physiological disorder or condition that affects one or
more body systems. 29 C.F.R. § 1630.2(h)(1) (1996).
The term "major life activities" includes, but is not limited to, "functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. § 1630.2(i). An individual is "substantially limited" by an impairment if [**40]
she is "significantly restricted as to the condition, manner, or duration under which [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the
general population can perform the same major life activity." Id. § 1630.2(j)(1)(ii); see also Aquinas, 940 F.
Supp. at 77 ("the ADA protects only a limited class of
persons -- individuals who suffer from impairments significantly more severe than those encountered by ordinary people in everyday life").
The regulations explicitly state that "conditions,
such as pregnancy, that are not the result of a physiological disorder are not impairments" and thus do not qualify
as "disabilities." Id. Pt. 1630, App. § 1630.2(h) at 33839. That is not to say, however, that physiological complications arising from pregnancy, as distinguished from
the condition of pregnancy itself, can never render a
woman "disabled" under the ADA. In such situations, the
question is whether the complication itself (i.e., the "impairment," or physiological disorder) is substantial
enough to qualify as a "disability," regardless of the fact
that the woman is pregnant. See [**41] EEOC Compliance Manual, Vol. 2, EEOC Order 915.002, § 902, Definition of the Term "Disability" (issued Mar. 14, 1995)
(attached as [*228] Exh. B to Pl Mem.). 16
16 Compare Cerrato, 941 F. Supp. at 392-93
(denying motion to dismiss where claimed disability was spotting, leaking, cramping, dizziness,
and nausea); Garrett v. Chicago Sch. Reform Bd.
of Trustees, 1996 U.S. Dist. LEXIS 10194, No.
95-7341, 1996 WL 411319, at *3 (N.D. Ill. July
19, 1996) (denying motion to dismiss where
claimed disability was pregnancy-related morning sickness); Patterson v. Xerox Corp., 901 F.
Supp. 274, 278 (N.D. Ill. 1995) (denying motion
to dismiss where claimed disability was back pain
resulting from combination of pregnancy and
prior injury) With Wenzlaff v. NationsBank, 940
F. Supp. 889, 891-92 (D. Md. 1996) (granting
motion to dismiss where claimed disability was
pregnancy itself); Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 465, 474 (D. Kan.
1996) (granting summary judgment where record
established that plaintiff's pregnancy "was not
unusual or abnormal" and related conditions
"were not outside the normal range"); Kindlesparker v. Metropolitan Life Ins. Co., 1995 U.S.
Dist. LEXIS 6164, No. 94-7542, 1995 WL
275576, at *1 (N.D. Ill. May 8, 1995) (denying
motion to dismiss where plaintiff "experienced
physical conditions related to pregnancy which
required medical attention"); Tsetseranos v. Tech
Prototype, Inc., 893 F. Supp. 109, 119 (D. N.H.
1995) (granting summary judgment where, "although plaintiff's pregnancy was clearly complicated by her ovarian cysts, and these complications required her to be out of work for a period
of time," the complications did not rise to level of
a "disability").
[**42] That said, pregnancy-related complications
usually will not qualify a woman for ADA protection.
Significantly, the interpretive guidance accompanying
the ADA regulations states that "temporary, non-chronic
impairments of short duration, with little or no long term
or permanent impact, are usually not disabilities." 29
C.F.R. Pt. 1630, App. § 1630.2(j) at 339. Based largely
on this guideline, courts have concluded that "pregnancy
and related medical conditions do not, absent unusual
circumstances, constitute a [disability] under the ADA."
17
Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp.
149, 152 (S.D. Tex. 1995); Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119 (D. N.H. 1995); see
App. Def. 137
Page 15
also Gudenkauf v. Stauffer Communications, Inc., 922 F.
Supp. 465, 474 (D. Kan. 1996) (in order to qualify for
ADA protection, pregnancy must be "unusual or abnormal" and complications must be "outside the normal
range"). The severity, duration, and impact of pregnancyrelated medical conditions are issues to be determined on
a case-by-case basis. See 29 C.F.R. Pt. 1630, App. §
1630.2(j) at 339.
17 That is not to say, however, that a woman is
without recourse where her employer discriminates against her based on pregnancy-related
complications that do not render the woman "disabled" within the meaning of the ADA. Where
pregnancy-related impairments do not rise to the
level of a "disability," discrimination targeted at
such conditions, while beyond the purview of the
ADA, may nevertheless violate Title VII and the
Pregnancy Discrimination Act. See Johnson v.
A.P. Products, Ltd., 934 F. Supp. 625, 627
(S.D.N.Y. 1996); Jessie v. Carter Health Care
Ctr., Inc., 926 F. Supp. 613, 616 (E.D. Kent.
1996); Villarreal, 895 F. Supp. at 152; Tsetseranos, 893 F. Supp. at 119; Byerly v. Herr Foods,
Inc., No. 92-7382, 1993 WL 101196, at *4 (E.D.
Pa. 1993).
[**43] In the instant case, Lacoparra has offered
insufficient evidence that she was "disabled" under the
ADA. The record supports Lacoparra's claim that she
suffered from a history of infertility, a prior miscarriage,
and spotting and cramping during the 1994 pregnancy.
There is no evidence, however, that any of these conditions were chronic or resulted in long-term or permanent
impact. Cf. 29 C.F.R. Pt. 1630, App. § 1630.2(j) at 339.
On the contrary, her evidence suggests that, if anything,
the existence and impact of the complications were temporary. Her deposition testimony and medical forms indicate that the spotting occurred in the first trimester
only, (see Letter from Laurie Grant, M.D., dated July 28,
1994 ("Grant Letter"), attached as Exh. I to Krouner
Aff.); that the bed rest prescribed by her doctor (as a result of cramping) was temporary, (see Lacoparra Dep. at
134, 181; Note of Peter McGovern, M.D., dated April
15, 1994, attached as Exh. H to Krouner Aff.); that her
activities were limited for only the duration of her 1994
pregnancy, (See Grant Letter); and that she physically
was able to return to work by January 1995, (see Lacoparra Dep. at 184-85; Continuing [**44] Disability
Claim Forms, attached as Exh. I to Krouner Aff.). We
find that this evidence is insufficient for purposes of
summary judgment to establish that Lacoparra actually
was "disabled" within the meaning of the ADA.
Nor can Lacoparra establish that she was "disabled"
under the third prong of [*229] the ADA definition.
[HN17] Under this subjective, "perceived disability"
standard, a plaintiff must show that her employer perceived her as having an impairment substantially limiting
a major life activity. See 42 U.S.C. § 12102(2)(C);
Sherman v. New York Life Ins. Co., 1997 U.S. Dist.
LEXIS 11411, No. 96-9665, 1997 WL 452024, at *4
(S.D.N.Y. Aug. 7, 1997); see also Daley v. Koch, 892
F.2d 212, 215-16 (2d Cir. 1989) (Rehabilitation Act).
That an employer deems an employee incapable of performing a particular job is insufficient; the employer
must perceive the employee as generally unable to work.
Sherman, 1997 WL 452024, at *4; see also Daly, 892
F.2d at 215-26. Here, Lacoparra has provided no evidence that Luckwaldt or Sottile, the Pergament managers
who terminated Lacoparra, perceived her as having an
impairment substantially limiting a major life activity.
There is no indication that they ever were aware [**45]
of the nature of Lacoparra's pregnancy-related complications or that they deemed her generally unfit to work.
Consequently, Lacoparra was not "disabled" under the
ADA by virtue of a "perceived" disability.
Moreover, even if Lacoparra could establish that she
fits under any of the three prongs of the ADA's definition
of disability, for the reasons discussed in section III of
this Opinion we find that Lacoparra is utterly unable to
demonstrate that she was discharged because of that disability and thus cannot establish a prima facie case of
discrimination under the ADA. Cf. Tsetseranos, 893 F.
Supp. at 119 ("even assuming that plaintiff's pregnancy
and ovarian cyst problem constitute a disability under the
ADA, . . . plaintiff has not produced sufficient evidence
to establish a causal nexus between her disability and
defendant's decision to terminate her").
VI. Sanctions under ERISA § 502(c)
In her Fifth Cause of Action, Lacoparra requests that
this Court impose statutory sanctions on Pergament for
its delay in producing documents regarding its welfare
benefits plan. Both Pergament and Lacoparra seek summary judgment on this claim.
[HN18] Section 104(b)(4) of the Employee Retirement [**46] Income Security Act requires that an administrator of an employee benefits plan shall, upon written request of any participant, furnish a copy of the latest
updated summary plan description.
29 U.S.C. §
1024(b)(4). ERISA § 502(c) provides that an administrator who fails or refuses to comply with such a request
within 30 days may, in the court's discretion, be held
personally liable to the participant. 29 U.S.C. §
1132(c)(1).
The statute commits the assessment of penalties to
the district court's sound discretion. Id.; Grohowski v.
U.E. Systems, Inc., 917 F. Supp. 258, 261 (S.D.N.Y.
App. Def. 138
Page 16
1996). In determining whether a plaintiff is entitled to a
statutory award, the two primary factors courts have considered are prejudice to the participant and bad faith on
the part of the administrator. See Grohowski, 917 F.
Supp. at 261-62; Kascewicz v. Citibank, 837 F. Supp.
1312, 1322-23 (S.D.N.Y. 1993). Other factors include the
length of the delay and the number of requests made by
the plaintiff. See Pagovich v. Moskowitz, 865 F. Supp.
130, 137 (S.D.N.Y. 1994).
In the instant action, Lacoparra contends that over
one year elapsed between her request for summary plan
documents and [**47] Pergament's compliance. In a
letter dated November 2, 1994, from Todd Krouner (Lacoparra's attorney) to Donald Jacobson (Pergament's
general counsel), Krouner requested a copy of summary
plan documents (and the documents themselves) pertaining to Pergament's welfare benefits plan. (See Wenger
Aff., Exh. C.) The bulk of the letter addresses Pergament's alleged failure to provide Lacoparra with adequate
notice of the requirements of the FMLA. Jacobson's November 15, 1994 response states that "our log indicates
that all legally required notices were forwarded to your
client in a timely manner." (Wenger Aff., Exh. D.) The
letter does not explicitly mention or respond to the request for summary plan documents. Not until December
6, 1995 -- two months after Lacoparra commenced the
instant action -- did Pergament provide the relevant
documents. The December 6 cover letter states: "Although the enclosed materials were provided to Ms. Lacoparra during her course of employment, we are providing [*230] duplicate copies to you." (Wenger Aff., Exh.
E.)
We find that sanctions are not warranted. To begin
with, there is no evidence that Lacoparra was in any way
prejudiced by Pergament's delay. Lacoparra [**48] does
not contend that she was denied any benefits under the
plan; she concedes that Pergament did not commit a substantive ERISA violation and has withdrawn this claim.
(See Pl. Mem. at 26.) Moreover, although some courts
have found that a plaintiff's need to initiate a lawsuit to
determine her rights under a plan may constitute prejudice, see Pagovich, 865 F. Supp. at 138; Kascewicz, 837
F. Supp. at 1323, Lacoparra's reliance on these holdings
is without merit. She commenced the instant action not
because any withholding of plan documents interfered
with her entitlements under the plan, but rather to seek
redress for Pergament's alleged discrimination.
In addition, we find no basis on which to conclude
that Pergament's failure to provide the plan documents
reflected bad faith "rather than possible confusion or
sloppiness." Algie v. RCA Global Communication, Inc.,
891 F. Supp. 839, 870 (S.D.N.Y. 1994), aff'd, 60 F.3d
956 (2d Cir. 1995). In most cases in which § 502(c)
sanctions have been awarded, the defendant failed to
respond to numerous requests from the plaintiff. See,
e.g., Scarso v. Briks, 909 F. Supp. 211, 215 (S.D.N.Y.
1996); Pagovich, 865 F. [**49] Supp at 138. Here, the
record suggests that Lacoparra's attorney requested
summary plan documents once, in his November 2, 1994
letter. This request came at the end of a letter that primarily addressed Pergament's alleged failure to provide
FMLA information. At no point does Lacoparra seem to
have followed up on this request. Indeed, Pergament
provided the documents only after learning that Lacoparra was seeking § 502(c) sanctions in her complaint.
Between the November 2 request and the filing of the
complaint, it appears that Lacoparra did not pursue her
request or give Pergament any indication that she still
needed and desired the information. Indeed, the absence
of a substantive ERISA claim in her original complaint
suggests that she did not in fact need or want the summary plan documents. In light of all these considerations,
we find nothing from which to infer bad faith.
Under the circumstances, any award to Lacoparra,
"where the absence of either bad faith or prejudice is so
palpable, would be an unjustifiable windfall." Grohowski, 917 F. Supp. at 262. Therefore, Pergament's motion for summary judgment on the ERISA § 502(c) claim
is granted. Accordingly, Lacoparra's cross-motion [**50]
for summary judgment on this claim is denied.
VII. Intentional Infliction of Emotional Distress
Finally, Lacoparra's Seventh Cause of Action asserts
a pendent state claim for intentional infliction of emotional distress ("IIED"). This claim is spurious.
First, there is no tort cause of action in New York
for abusive or wrongful discharge of an at-will employee. Murphy v. American Home Products Corp., 58
N.Y.2d 293, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90
(1983). Based on this principle, it is well-established that
a plaintiff may not subvert the rule "by recasting [her]
cause of action in terms of a tort of intentional infliction
of emotional distress." Id.; see also Stylianou v. St.
Luke's/Roosevelt Hosp. Ctr., 902 F. Supp. 54, 58
(S.D.N.Y. 1995); Tischmann v. ITT/Sheraton Corp., 882
F. Supp. 1358, 1367 (S.D.N.Y. 1995). Here, Lacoparra's
vaguely pleaded and sparsely briefed IIED claim involves no factual allegations independent of those relating to her termination. See Tischmann, 882 F. Supp. at
1368 (granting summary judgment on IIED claim where
claim "merely rehashed the same facts regarding [defendant's] decision to terminate [plaintiff]").
In [**51] any event, Lacoparra's allegations fall
woefully short of establishing a cause of action for New
York's extremely limited IIED tort. New York, which
has adopted the Restatement (2d) of Torts definition of
[HN19] IIED, requires that the defendant's conduct be
App. Def. 139
Page 17
"so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized society." [*231] Martin v. Citibank, 762 F.2d 212,
220 (2d Cir. 1985) (quoting Restatement (2d) Torts §
46(1) (1965), as adopted by Fischer v. Maloney, 43
N.Y.2d 553, 402 N.Y.S.2d 991, 992-93, 373 N.E.2d 1215,
1217 (1978)). An IIED claim has four elements: (1) extreme and outrageous conduct; (2) intent to cause, or
disregard of a substantial probability of causing, severe
emotional distress; (3) a causal connection between the
outrageous conduct and injury; and (4) severe emotional
distress. Howell v. New York Post Co., 81 N.Y.2d 115,
596 N.Y.S.2d 350, 353, 612 N.E.2d 699, 702 (1993).
Lacoparra is unable to satisfy, even remotely, any of
the tort's elements. Cf. Sigmon v. Parker Chapin Flattau
& Klimpl, 901 F. Supp. 667 (S.D.N.Y. 1995) (granting
motion [**52] for summary judgment on IIED claim in
Title VII case where plaintiff alleged, inter alia, that she
was terminated and otherwise discriminated against because of her pregnancy and gender). Accordingly, sum-
mary judgment is granted in favor of Pergament with
respect to the IIED claim.
Conclusion
For the foregoing reasons, Pergament's motion for
summary judgment is granted with respect to all claims,
and Lacoparra's cross-motion for summary judgment on
the ERISA § 502(c) claim accordingly is denied. The
Amended Complaint is dismissed in its entirety. Pergament shall submit a proposed Judgment Order within ten
days and Lacoparra shall have five days to file objections
as to form.
SO ORDERED.
Dated: October 10, 1997
White Plains, NY
William C. Conner
Senior United States District Judge
App. Def. 140
Page 1
LEXSEE 1998 U.S. DIST. LEXIS 10760
DONALD G. LUCAS, Plaintiff, v. ERICSSON, INC., Defendant.
CA3:97-CV-0847-BC
1998 U.S. Dist. LEXIS 10760
July 13, 1998, Decided
July 13, 1998, Filed
DISPOSITION:
[*1] Defendant's Motion for Summary Judgment filed May 1, 1998 GRANTED; Defendant's Motion to Dismiss filed April 13, 1998 DENIED
as moot and Defendant's Motion to Strike Expert filed
February 23, 1998 DENIED as moot.
by the employer; and (4) the employer was under no obligation to reallocate his essential job functions.
OUTCOME: The court granted the employer's motion
for summary judgment and denied its motion to dismiss
the employee's wrongful termination action as moot.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant employer
sought summary judgment against plaintiff employee on
the employee's wrongful termination claim brought under the Americans with Disabilities Act (ADA).
OVERVIEW: The employee was a data control clerk
for the employer. After the employee complained of too
many job duties, the employer assigned parts of his duties to others. The employee's job with the employer
ended, although the exact reason was in dispute. Thereafter, the employee began receiving disability benefits. He
then instituted this action claiming that the employer
fired him because of his disability. The employer argued
that the employee could not recover on his ADA claim as
he could not establish that he was a qualified individual
with a disability or that he informed the employer of any
limitations caused by his disability. The court granted
summary judgment and held that: (1) in his sworn application for disability benefits, the employee claimed that
he was disabled on the same day he claimed to be a
qualified individual with a disability under the ADA
claim; (2) the employee's treating physicians testified he
was disabled prior to, or no later than, his departure from
the employer; (3) the employee failed to show that he
requested and was denied reasonable accommodations
Appropriateness
Genuine Disputes
[HN1] Fed. R. Civ. P. 56(c) provides that summary
judgment is appropriate when the pleadings and record
evidence show that no genuine issue of material facts
exists and that, as a matter of law, the movant is entitled
to judgment. The substantive law will identify which
facts are material. Only disputes about those facts will
preclude the granting of summary judgment.
Civil Procedure > Parties > Self-Representation > General Overview
[HN2] In a motion for summary judgment, the burden is
on the movant to prove that no genuine issue of material
fact exists. If the non-movant bears the burden of proof
at trial, the movant for summary judgment need not sup-
App. Def. 141
Page 2
1998 U.S. Dist. LEXIS 10760, *
port the motion with evidence negating the opponent's
case; rather, the movant may satisfy its burden by showing that there is an absence of evidence to support the
non-movant's case. Once the movant makes this showing, the burden shifts to the non-movant to show that
summary judgment is not appropriate. This burden is not
satisfied with some metaphysical doubt as to the material
facts, by conclusory allegations, unsubstantiated assertions or only a scintilla of evidence. Rather, the nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial. Pro se litigants are not excused from this requirement. In determining whether a genuine issue for trial exists, the court
must view all of the evidence in the light most favorable
to the non-movant. However, the court is obligated to
liberally construe a pro se litigant's response to a summary judgment motion.
Overview
[HN3] To set forth a prima facie case for discrimination
under the Americans with Disabilities Act (ADA), plaintiff must show that: (1) he suffers from a disability; (2)
he is qualified for the job; (3) that he was subject to an
adverse employment action; and (4) he was replaced by a
non-disabled person or was treated less favorably than
non-disabled employees.
[HN4] Under the Americans with Disabilities Act
(ADA), specifically 42 U.S.C.S. § 12111(8), a qualified
individual with a disability is an individual with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment
position that such individual holds or desires. The determination of whether an individual is qualified is made at
the time of the employment decision and involves two
steps. 29 C.F.R. § 1630.2(m). First, the employee must
satisfy job prerequisites, including educational background, experience, skills and licenses. Second, he must
be able to perform the essential functions of the position
held or desired, with or without reasonable accommodation.
Contracts Law > Negotiable Instruments > Enforcement > Duties & Liabilities of Parties > Types of Parties > Accommodated & Accommodation Parties
Evidence > Inferences & Presumptions > Rebuttal of
Presumptions
Workers' Compensation & SSDI > Social Security Disability Insurance > Eligibility
[HN5] If an Americans with Disabilities Act plaintiff has
applied for or received social security disability benefits,
there is a rebuttable presumption that the claimant or
recipient of such benefits is judicially estopped from
asserting that he is a qualified individual with a disability. The plaintiff might be able to rebut this presumption
if he were able to present credible, admissible evidence
sufficient to show that, even though he may be disabled
for purposes of social security, he is otherwise qualified
to perform the essential functions of his job with a reasonable accommodation. A party may not assert a position in a legal proceeding that is inconsistent with a position taken in the same or an earlier proceeding.
Labor & Employment Law > Discrimination > Disability Discrimination > Defenses & Exceptions > General
Overview
Interactive Process
[HN6] Under the Americans with Disabilities Act
(ADA), it is the employee's responsibility to inform the
employer that an accommodation is needed. Once the
employee requests an accommodation, the appropriate
reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer and the qualified individual with a disability.
Thus, an employer's obligation to participate in the interactive process of fashioning a reasonable accommodation is triggered by the employee's request for an accommodation. If the employee fails to request an accommodation, the employer cannot be held liable for
failing to provide one.
App. Def. 142
Page 3
1998 U.S. Dist. LEXIS 10760, *
Overview
U.S.C.S. § 12111(9), provides that the term reasonable
accommodation may include: job restructuring, part-time
or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or
devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision
of qualified readers or interpreters and other similar accommodations for individuals with disabilities. The
Equal Employment Opportunity Commission's regulations provides that reasonable accommodations usually
take the form of adjustments to the way a job customarily is performed, or to the work environment itself. 29
C.F.R. § 1630 (1996). Restructuring a job permits employers to accommodate disabled individuals by reallocating nonessential job functions. 29 C.F.R. § 1630.2(o).
However, the ADA does not require that an employer
reallocate essential job functions.
COUNSEL: DONALD G LUCAS, plaintiff, Pro se,
Richardson, TX.
For ERICSSON INC, defendant: Audrey Elaine Mross,
Attorney at Law, Haynes & Boone, Dallas, TX USA.
MAXEL B 'BUD' SILVERBERG, ADR Provider, Pro
se, Dallas, TX USA.
JUDGES: JANE J. BOYLE, UNITED STATES MAGISTRATE JUDGE.
OPINION BY: JANE J. BOYLE
OPINION
MEMORANDUM OPINION AND ORDER
Before the court is the Defendant's Motion for
Summary Judgment, filed May 1, 1998. At issue is
whether the Defendant is entitled to summary judgment
because the Plaintiff has failed to set forth a prima facie
case for discrimination under the Americans with Disabilities Act. Having considered the pertinent pleadings,
the Court GRANTS the motion for the reasons that follow.
I. Background 1
1 These uncontested background facts are taken
from the Def.'s Mot. For Summ. J., filed May 1,
1998, and the Pl.'s Resp. to Def.'s Mot. For
Summ. J., filed May 21, 1998. Unless character-
ized as a contention, all background facts are undisputed.
[*2] On October 30, 1989, the defendant, Ericsson,
Inc. ("Ericsson"), hired the plaintiff, Donald G. Lucas
("Lucas"), for the position of data control clerk. While
working as a data control clerk, Lucas sorted printed
reports, ordered and maintained an inventory of supplies,
serviced and performed prevent give maintenance on
printers, and delivered printed reports and magnetic tapes
to various buildings on the Ericsson campus.
In November of 1995, Lucas told Aaron Haynes
("Haynes"), the manager of the Customer Support Center, that he had been diagnosed with depression. In response, Haynes instructed Lucas to provide a doctor's
note indicating that he was cleared for work. Accordingly, Lucas obtained a note from Dr. Spurlock dated
December 6, 1995. In his note, Dr. Spurlock explained
that he diagnosed Lucas with mild depression on October
31, 1995, and that Lucas was responding well to medication. In addition, Spurlock stated that Lucas "should be
able to do his work without much problem." 2
2 The note provides as follows:
"Mr. Lucas has been seeing me for mild depression since 10/31/95. He is responding well to
medication and should finish his course of therapy in 6 months. His symptoms have been loss of
energy, insomnia, poor concentration, irritability,
decreased motivation, [and] focusing on the negative. These [symptoms] should improve greatly
over the next few months. He should be able to
work equipment without any difficulty. He
should be able to do his work without much problem. The medication does not cause drowsiness."Pl.'s App. to Resp. To Def.'s Mot. For.
Summ. J., at 70.
[*3] In January of 1996, Haynes reorganized Data
Control to increase the efficiency of the department. As a
result of this reorganization, Lucas no longer had an assistant and was fully responsible for performing all of the
data control clerk duties. Subsequently, Lucas informed
Haynes that he was not able to perform all of the data
control clerk duties by himself. In response, Haynes assigned Forrest Banks ("Banks") and Frank de la Rosa
("de la Rosa") to assist Lucas on a part-time basis. In
addition, Lucas trained Chris Atilano ("Atilano") to take
over the duties related to inventory and ordering supplies.
On March 8, 1996, Haynes and Lucas met to discuss
Lucas' employment evaluation. Although Lucas received
a number of "Good Job" ratings, his overall performance
trend was characterized as "declining." The summary of
Lucas' performance review reads as follows:
App. Def. 143
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1998 U.S. Dist. LEXIS 10760, *
Don is dependable in executing his job
duties and I have received a number of
compliments from the user community to
the service he provides.
Don has requested that a number of
his job duties be removed due to health
problems. We have accommodated him in
this regard with the removal of the ordering responsibility, [*4] morning deliveries, and most of the printer maintenance
responsibilities. Don has been released
from his Doctor to return to his full responsibilities. Over the next 6 months we
will gradually add back all of his responsibilities.
App. to Def.'s Mot. for Summ. J. at 145.
On March 27, 1996, Lucas reported to work and discovered that Banks had failed to complete the morning
delivery. Consequently, Lucas complained to his immediate supervisor, Marshall Miller ("Miller"), about
Banks' deficient performance. Ericsson contends that
during the conversation with Miller, Lucas "lost it" and
voluntarily resigned. Conversely, Lucas contends either
that he was fired or constructively discharged. 3 In any
event, it is undisputed that after his conversation with
Miller, Lucas left his ID badge, company keys, and a
resignation letter on his desk. 4
Award letter informing him that under their rules, he was
entitled to benefits because he was disabled as of March
27, 1996.
On April 16, 1997, Lucas filed suit against Ericsson
contending that Ericsson discriminated against him in
violation of the Americans with Disabilities Act. On May
1, 1998, Ericsson filed the instant motion for summary
judgment arguing, inter alia, that Lucas cannot recover
on his ADA claim because he cannot establish either that
he is a "qualified individual with a disability," [*6] or
that he notified Ericsson of any limitations caused by his
disability. 5
5 Ericsson also argues that it is entitled to summary judgment because Lucas cannot show: (1)
that he was subjected to an adverse employment
action; and (2) that he was replaced by a nondisabled person or treated less favorably than
non-disabled employees. However, the court need
not address these issues since Ericsson's other arguments provide sufficient justification for granting defendant's motion for summary judgment.
II. Analysis
A. Summary Judgment Standard
/s/ Don Lucas.App. to Def.'s Mot. for
Summ. J. at 146.
[HN1] Under Rule 56(c) of the Federal Rules of
Civil Procedure, summary judgment is appropriate when
the pleadings and record evidence show that no genuine
issue of material facts exists and that, as a matter of law,
the movant is entitled to judgment. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "The substantive law will identify which facts are material."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S. Ct. 2505, 2510, 91 L. Ed. 2d 202, [*7] (1986). Only
disputes about those facts will preclude the granting of
summary judgment. Id. [HN2] In a motion for summary
judgment, the burden is on the movant to prove that no
genuine issue of material fact exists. Latimer v. Smithkline & French Lab., 919 F.2d 301, 303 (5th Cir. 1990).
If the non-movant bears the burden of proof at trial, the
movant for summary judgment need not support the motion with evidence negating the opponent's case; rather,
the movant may satisfy its burden by showing that there
is an absence of evidence to support the non-movant's
case. Id.; Little, 37 F.3d at 1075.
On June 6, 1997, Lucas filed an application for social security disability benefits. In support of his sworn
application, Lucas certified that he was "disabled" and
that his "disability began on March 27, 1996." In addition, Lucas acknowledged that it is a crime to make false
statements in an application for social security disability
benefits. On November 29, 1997, the Social Security
Administration (the "SSA") sent Lucas a Notification of
Once the movant makes this showing, the burden
shifts to the non-movant to show that summary judgment
is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct.
2548, 2553-54, 91 L. Ed. 2d 265 (1986)). "This burden is
not satisfied with 'some metaphysical doubt as to the
material facts,' . . . by 'conclusory allegations,' . . . by
'unsubstantiated assertions,' or by only a 'scintilla' of evi-
3 In his Second Amended Complaint, Lucas alleges that he was terminated. See Pl.'s Second
Am. Compl. P 9. However, in his response to the
defendant's motion for summary judgment, the
plaintiff now argues that he was constructively
discharged. Pl.'s Br. at 11-12.
[*5]
4 This letter provides as follows:
This is to inform you that I will be leaving
Ericsson.
App. Def. 144
Page 5
1998 U.S. Dist. LEXIS 10760, *
dence." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. [*8] 574, 586, 106 S. Ct.
1348, 1356, 89 L. Ed. 2d 538 (1986); Lujan v. National
Wildlife Fed'n, 497 U.S. 871, 871-73, 110 S. Ct. 3177,
3180, 111 L. Ed. 2d 695 (1990); Hopper v. Frank, 16
F.3d 92, 97 (5th Cir. 1994); Davis v. Chevron U.S.A.,
Inc., 14 F.3d 1082, 1086 (5th Cir. 1994)). Rather, the
non-moving party must "come forward with 'specific
facts showing that there is a genuine issue for trial.'"
Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (quoting FED. R. CIV. P. 56(e)). Pro se litigants are not excused from this requirement. Bookman v. Shubzda, 945
F. Supp. 999, 1004 (N.D.Tex. 1996). 6 In determining
whether a genuine issue for trial exists, the court must
view all of the evidence in the light most favorable to the
non-movant. Richter v. Merchants Fast Motor Lines,
Inc., 83 F.3d 96, 98 (5th Cir. 1996)(per curiam); Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292
(5th Cir. 1990) (citing Bodnar v. Synpol, Inc., 843 F.2d
190, 192 (5th Cir.), cert. denied, 488 U.S. 908, 109 S.
Ct. 260, 102 L. Ed. 2d 248 (1988).
6 However, it is well-settled that the court is obligated to liberally construe a pro se litigant's response to a summary judgment motion.
[*9] The Americans with Disabilities Act
"The ADA is a federal antidiscrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons
without disabilities." Taylor v. Principal Fin'l Group,
Inc., 93 F.3d 155, 161 (5th Cir.)(citing 29 C.F.R. §
1630, App. (1995)), cert. denied, 117 S. Ct. 586, 136 L.
Ed. 2d 515 (1996)). [HN3] To set forth a prima facie
case for discrimination under the ADA, Lucas must show
that: (1) he suffers from a disability; (2) he is qualified
for the job; (3) that he was subject to an adverse employment action; and (4) he was replaced by a nondisabled person or was treated less favorably than nondisabled employees. 93 F.3d at 162 (citation omitted). 7
The parties do not dispute that Lucas suffers from a disability. Thus, the Court will first consider whether Lucas
is a "qualified individual with a disability."
7 These elements apply where the plaintiff attempts to satisfy his prima facie case with indirect evidence. Taylor, 93 F.3d at 162. Here, although the plaintiff argues that he has presented
direct evidence of discrimination, the Court finds
that the plaintiff has presented no direct evidence
of discrimination whatsoever. Consequently, it is
appropriate for the Court to apply indirect method
of proof set forth in McDonnell Douglas. Taylor,
93 F.3d at 162.
[*10] 1. Qualified Individual
The ADA prohibits discrimination against a "qualified individual with a disability." 42 U.S.C.A. §
12112(a). In order to establish a prima facie case, the
plaintiff must show that, in addition to being disabled, he
is a qualified individual. Cleveland v. Policy Management Systems Corp., 120 F.3d 513, 516 (5th Cir. 1997).
[HN4] A qualified individual with a disability is an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or
desires." 42 U.S.C.A. § 12111(8). The determination of
whether an individual is qualified is made at the time of
the employment decision and involves two steps. 29
C.F.R. App. § 1630.2(m). First, the employee must satisfy job prerequisites, including educational background,
experience, skills, licenses, etc. Id. Second, he must be
able to perform the essential functions of the position
held or desired, with or without reasonable accommodation. Id. However, in the Fifth Circuit, [HN5] if an ADA
plaintiff has applied for or received social security disability benefits, there [*11] is a rebuttable presumption
that the claimant or recipient of such benefits is judicially
estopped from asserting that he is a "qualified individual
with a disability." McConathy v. Dr. Pepper/Seven Up
Corp., 131 F.3d 558, 562 (5th Cir. 1998); Cleveland,
120 F.3d at 518.
In this case, Ericsson argues that Lucas has failed to
present credible evidence sufficient to rebut the presumption that by applying for and receiving social security
benefits, he is judicially estopped from asserting that he
is a qualified individual with a disability. In response,
Lucas contends that he was not disabled and was capable
of performing the essential functions of a data control
clerk at the time he left the defendant's employ.
In Cleveland, supra, the Fifth Circuit declined to
adopt a per se rule that would "automatically estop . . .a
recipient of social security benefits from asserting a
claim of discrimination under the ADA." Cleveland, 120
F.3d at 517. The Fifth Circuit explained that it rejected a
per se rule because "it is at least theoretically conceivable
that under some limited and highly unusual set of circumstances the two claims would not necessarily be mutually [*12] exclusive. . ." Id. Later in its Opinion, the
Cleveland Court explained that a plaintiff might be able
to rebut the presumption he is judicially estopped "if he
were able to present credible, admissible evidence -such as his social security benefits application, other
sworn documentation, and his allegations relevant to his
ADA claim -- sufficient to show that, even though he
may be disabled for purposes of social security, he is
otherwise qualified to perform the essential functions of
his job with a reasonable accommodation . . ." Id.
App. Def. 145
Page 6
1998 U.S. Dist. LEXIS 10760, *
Here, Lucas argues that he is not estopped from asserting that he is a qualified individual by his social security benefits application because in his application, he
only declared that he was "disabled," not "totally disabled." The Court rejects this argument for two reasons.
First, in support of his application for benefits, Lucas
submitted a letter from Dr. Turpin. In his letter to the
SSA, Dr. Turpin explained that, in his opinion, Lucas
was "permanently disabled" and therefore a deserving
candidate for disability benefits. App. To Def.'s Mot.
For Summ. J., at 157. Thus, even though Lucas did not
directly assert that [*13] he was totally disabled, he did
so indirectly by submitting a note from his doctor to support his application. Second, in the absence of any authority to the contrary, the Court finds it inappropriate to
create a distinction between those applicants for social
security disability benefits who certify that they are "disabled" rather than "totally disabled." Instead, as instructed by the Fifth Circuit, the Court will consider
whether the plaintiff has satisfied his burden of pointing
to credible evidence to rebut the presumption that he is
judicially estopped from asserting that he is a qualified
individual with a disability.
In an effort to rebut the presumption that he is estopped, Lucas next argues that his most recent employment evaluation shows that he could perform the essential functions of his job when he left Ericsson. Specifically, Lucas contends that his ability to perform the essential functions of his job is corroborated by his employment evaluation because he received a "Good Job"
rating in 14 of 16 categories several weeks prior to leaving Ericsson. 8 Under the judicial estoppel doctrine, a
party may not assert a position in a legal proceeding that
is inconsistent with [*14] a position taken in the same or
an earlier proceeding. Ergo Science, Inc. v. Martin, 73
F.3d 595, 598 (5th Cir. 1996). 9 Here, the inconsistent
position being taken by Lucas is the declaration he made
in his application to the SSA that he was disabled as of
March 27, 1996, and his assertion in this case that on
March 27, 1996, he was a qualified individual with a
disability. See App. To Def.'s Mot. For Summ. J., at
147. Accordingly, the Court finds that although the employment evaluation certainly is relevant circumstantial
evidence, standing alone it is insufficient for Lucas to
satisfy his burden of proving that he was able to perform
the essential functions of his job almost three weeks
later, on March 27, 1996. 10 The Court is especially confident of this result because, as discussed previously, in
addition to providing a number of "Good Job" ratings,
the evaluation also indicates that Lucas was unable to
perform many of the duties of his position due to health
problems.
8 The Court notes that a review of the evaluation indicates as follows: (1) Lucas received a rat-
ing of "Good Job" in 10 of 13 categories; (2) a
rating of acceptable in 3 of 3 categories; (3) 2 of
13 "Room for Improvement" ratings; and (4) an
"other" category that was left blank. Pl.'s App.
To Resp. To Def.'s Mot. For Summ. J., at 8492.
[*15]
9 The judicial estoppel doctrine is designed to
prevent "parties from playing fast and loose with
the courts to suit the exigencies of self interest."
Brandon v. Interfirst Corp., 858 F.2d 266, 268
(5th Cir. 1988)(citation omitted).
10
Indeed, the plaintiff's own doctor (Dr.
Spurlock) indicated that the precise starting point
of Lucas' disability was hard to pinpoint and that
Lucas "had a flare-up just before he left Ericsson." Pl.'s App. To Resp. To Def.'s Mot. For
Summ. J., at 97 (emphasis added). Under these
circumstances, a three week lapse of time is substantial.
Moreover, the plaintiff's efforts to rebut the presumption that he is estopped from asserting that he is a
qualified individual with a disability are especially unpersuasive in light of the deposition testimony of the
plaintiff's own treating physicians. In his deposition, Dr.
Turpin testified that he first saw Lucas on May 6, 1996.
Dr. Turpin further testified that, because of his depression, Lucas was not capable of working for a period of
three to six months prior to that visit. Pl.'s App. To
Resp. [*16] To Def.'s Mot. For Summ. J., at 100.
Thus, according to one of Lucas' own doctors, he was
unable to work because of his disability no later than
February 6, 1996, more than six weeks prior to March
27, 1996. In addition, Dr. Turpin's opinion is corroborated by the testimony of Dr. Spurlock, Lucas' Family
Physician. In his deposition, Dr. Spurlock testified that
"at the point that he left Ericsson, I believe he was disabled . . ." App. To Def.'s Mot. For Summ. J., at 98. 11
11 The plaintiff also contends that the fact that
Ericsson offered to rehire him after he left on
March 27, 1996 establishes that he could perform
the essential functions of a data control clerk. The
Court does not agree that the mere fact that Ericsson offered to rehire Lucas means that he was capable of performing the essential functions of his
job. Indeed, the plaintiff's performance evaluation
indicates that Lucas was unable to perform many
of his duties due to health problems. In any event,
even after taking into account the defendant's offer to rehire the plaintiff, in light of Lucas' application for social security benefits and the deposition testimony of his treating physicians, the
Court finds that this evidence is insufficient to
rebut the presumption that at the time he left, he
App. Def. 146
Page 7
1998 U.S. Dist. LEXIS 10760, *
was capable of performing the essential functions
of his job.
[*17] In sum, the Court finds that Lucas has failed
to present sufficient credible evidence to show that, despite being disabled for Social Security purposes, he was
otherwise qualified to perform the essential functions of
a data control clerk with reasonable accommodations on
March 27, 1996. Here, in his sworn application for disability benefits, the plaintiff claimed that he was disabled
on March 27, 1996. Further, both of his treating physicians testified that in their opinion, the plaintiff was disabled prior to, or no later than, March 27, 1996. Because
Lucas has been receiving social security benefits since
March 27, 1996 based on his statements to the SSA, the
plaintiff cannot now be heard to complain that he was
capable of performing the essential functions of his data
control clerk position on March 27, 1996. Accordingly,
because Lucas has failed to raise a genuine issue of material fact rebutting the presumption that he is judicially
estopped from asserting that he was a qualified individual with a disability for purposes of his ADA claim, the
Court grants Ericsson's motion for summary judgment.
2. Failure to Identify Accommodation
Even if the Court determined that [*18] Lucas was
not judicially estopped from asserting that he is a qualified individual with a disability, Ericsson would still be
entitled to summary judgment because Lucas has failed
to tender summary judgment evidence showing that
Ericsson failed to provide a reasonable accommodation.
Generally, [HN6] it is the employee's responsibility to
inform the employer that an accommodation is needed.
Taylor, 93 F.3d at 165 (citing 29 C.F.R. § 1630.9, App.
(1995)). Once the employee requests an accommodation,
"the appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual
with a disability.'" Id. Thus, an employer's obligation to
participate in the interactive process of fashioning a reasonable accommodation is triggered by the employee's
request for an accommodation. Id. "If the employee fails
to request an accommodation, the employer cannot be
held liable for failing to provide one." Id.
Here, Ericsson contends that it is entitled to summary judgment because Lucas failed to provide notification that he was disabled and in need of a reasonable
accommodation. In [*19] response, Lucas argues that he
informed Ericsson of his disability verbally in November
of 1995, and in writing by submitting a note from his
doctor in December of 1995. See n. 2, supra. However,
although this evidence indicates that Lucas told Ericsson
that he was diagnosed with a disability, Lucas does not
tender any summary judgment evidence to show that he
informed Ericsson of any limitations he experienced as a
result of his disability. "This distinction is important because the ADA requires employers to reasonably accommodate limitations, not disabilities." Taylor, 93 F.3d
at 164. Thus, to withstand Ericsson's motion for summary judgment, Lucas must adduce summary judgment
evidence to indicate not only that he informed Ericsson
that he was disabled, but also that he told Ericsson that
he was limited as a result of his disability. Id. Here, the
doctor's note that Lucas provided in December of 1995
does not indicate that Lucas needed any accommodations
to perform his duties as a data control clerk. See n. 2,
supra. Indeed, the note expressly states that Lucas
"should be able to do his work without much problem."
Id. Accordingly, [*20] the December 1995 doctor's note
did not satisfy Lucas' obligation to notify Ericsson that
he experienced a limitation as a result of his disability. 12
Thus, Ericsson's duty to participate in the interactive
process of fashioning a reasonable accommodation for
Lucas clearly was not triggered either by the verbal notice in November of 1995, or by the December 1995 doctor's note.
12 As explained previously, Haynes requested
the doctor's note to determine if Lucas was capable of working in light of his November 1995
verbal reports that he was diagnosed with depression. Since the doctor's note related to his verbal
notice fails to identify the need for an accommodation, Lucas cannot satisfy his burden through
reliance on his prior verbal notice.
Nevertheless, Lucas proceeds to argue that in January of 1996, he informed Haynes that because of his disability, he was unable to perform his duties without additional assistance. Specifically, Lucas contends that he
requested additional employees to assist him with his
[*21] data control clerk duties. In response, Ericsson
argues that the accommodation proposed by Lucas was
not reasonable because it would have required Ericsson
to reallocate essential functions of the data control clerk
position.
[HN7] The ADA provides, in pertinent part, that the
term reasonable accommodation may include"
. . .job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters and other similar accommodations for
individuals with disabilities.
App. Def. 147
Page 8
1998 U.S. Dist. LEXIS 10760, *
42 U.S.C.A. § 12111(9). The appendix to the EEOC's
regulations provides that reasonable accommodations
"usually take the form of adjustments to the way a job
customarily is performed, or to the work environment
itself. 29 C.F.R. § 1630, App. Background (1996). Restructuring a job permits employers to accommodate
disabled individuals by reallocating nonessential job
functions. 29 C.F.R. § 1630.2(o); App. § 1630.2(o).
However, the ADA does not require that an employer
reallocate essential [*22] job functions. Id; Milton v.
Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995);
Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522,
1527-28 (11th Cir. 1997).
In this case, even assuming that Lucas satisfied his
burden of informing Ericsson that he experienced a limitation as a result of his disability, he cannot withstand
Ericsson's motion for summary judgment because the
accommodation he requested would have required Ericsson to reallocate the essential functions of the data control clerk position. It is undisputed that the essential
functions of the data control clerk position "have always
included sorting and delivering printed documents,
printer maintenance, and ordering and inventory." Pl's
Resp. at 3. Specifically, according to Lucas, at the time
of his termination, his duties included: "four deliveries of
documents printed in the large printers, the delivery of
magnetic tapes throughout the campus, ordering and inventory of supplies, preventive maintenance and servicing all printers on campus, [and the] documentation of
procedures." Id. at 3-4. Lucas contends that Ericsson
could have accommodated him by assigning "additional
employees [*23] to assist him with the duties of the department." Pl.'s Br. at 8. Indeed, the record indicates that
Haynes did accommodate Lucas' request for assistance
by relieving him of some of the essential duties of his
position. As explained previously, Haynes assigned
Banks and de la Rosa to assist Lucas with the sorting and
printing deliveries on a part-time basis. In addition, Atilano was trained to assume duties related to the ordering
and inventory of supplies. Further, Lucas' final performance evaluation indicates that many of his duties were
"removed due to health problems." App. to Def.'s Mot.
for Summ. J. at 145. However, the fact that Ericsson
was able to accommodate the plaintiff by providing him
with additional assistance does not mean that it was legally obligated to do so by the ADA. Holbrook, 112
F.3d at 1528 (affirming summary judgment award for
employer where the employee could not perform an
essential function of his position even though the employer previously exceeded the ADA's requirements
by accommodating the employee).
In this case, Lucas did not request an adjustment in
the way his job was performed, or an adjustment to the
work environment itself. [*24] Likewise, Lucas did not
request merely that Ericsson reallocate the nonessential
functions of his data control clerk position. Instead, Lucas requested that other employees perform many of the
essential functions of his position on his behalf. Even
though Ericsson complied with his request, they were not
legally obligated to do so under the ADA. 29 C.F.R.
App. § 1630.2(o); Milton, 53 F.3d at 1124-25; Holbrook, 112 F.3d at 1527-28. Accordingly, because Lucas
failed to identify any reasonable accommodation that
would not have required Ericsson to reallocate the essential functions of his position, the Court finds that Ericsson is entitled to summary judgment. Milton, 53 F.3d at
1124 ("An employer is not required by the ADA to
reallocate job duties in order to change the essential
functions of the job."); Larkins v. CIBA Vision Corp.,
858 F. Supp. 1572, 1584 (N.D. Ga. 1994)(defendant
entitled to summary judgment where the plaintiff
could suggest no accommodations other than the
elimination of some of the essential functions of her
position); Henderson v. New York Life, Inc., 991 F.
Supp. 527, 540 (N.D. Tex. 1997) ("The ADA does not
require an accommodation [*25] that would result
in other employees having to work harder or longer
hours")(citation omitted); Simmerman v. Hardee's
Food Systems, Inc., 1996 U.S. Dist. LEXIS 3437, No.
94-6906, 1996 WL 131948, at *8-9 (E.D. Pa., March
22, 1996) (defendant entitled to summary judgment
where plaintiff suffering from depression sought the
elimination of an essential function of his position as a
reasonable accommodation), aff'd, 118 F.3d 1578 (3d
Cir. 1997).
In sum, Lucas is unable to perform the essential
functions of the data control clerk position with or without reasonable accommodation. Lucas has not suggested
any accommodations other than those that would require
Ericsson to eliminate many of the essential functions of
the data control clerk position. Further, the record indicates that, although it was not required to reallocate essential functions of the data control clerk position, Ericsson attempted to accommodate Lucas' disability by directing other employees to perform essential functions of
plaintiff's job. Under these circumstances, the Court finds
that no genuine issues of material fact exist as to Lucas'
ADA claim, and that Ericsson is entitled to summary
judgment as a matter of law.
III. Conclusion
[*26] Accordingly, the undersigned ORDERS as
follows:
(1) that the Defendant's Motion for Summary Judgment, filed May 1, 1998, be GRANTED;
(2) that Defendant's Motion to Dismiss, filed April
13, 1998, be DENIED as moot;
App. Def. 148
Page 9
1998 U.S. Dist. LEXIS 10760, *
(3) and that Defendant's Motion to Strike Expert,
filed February 23, 1998, be DENIED as moot.
July 13, 1998.
JANE J. BOYLE
SO ORDERED.
UNITED STATES MAGISTRATE JUDGE
App. Def. 149
Page 1
LEXSEE 55 F.3D 1086
Positive
As of: Jul 19, 2010
Robert MAYBERRY, Plaintiff-Appellant, v. VOUGHT AIRCRAFT COMPANY,
Defendant-Appellee.
No. 94-10825.
June 28, 1995, Decided
PRIOR HISTORY:
States District Court for the Northern District of Texas.
D.C. DOCKET NUMBER 3:93-CV-1893-H. JUDGE
Barefoot Sanders.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff employee appealed the decision of the United States District Court for
the Northern District of Texas, which granted summary
judgment in favor of defendant employer on plaintiff's
claims of employment discrimination and retaliation.
retaliation claim where he did not show that his protected
activities were the reason for his suspension. The summary judgment in favor of defendant was affirmed.
OUTCOME: The court affirmed the judgment of the
district court, which granted summary judgment in favor
of defendant employer on plaintiff employee's claims of
employment discrimination and retaliation. The court
found that plaintiff did not meet his burden to establish a
prima facie case that defendant's suspension of plaintiff
was based on race, or was in retaliation for plaintiff's
prior discrimination claims.
OVERVIEW: Plaintiff employee was disciplined three
times in one year for poor workmanship. Within one year
of his last suspension plaintiff damaged a substantial
number of parts and defendant employer suspended him.
Plaintiff brought an action in district court claiming that
his suspension was on account of his race, and/or in retaliation for prior discrimination claims brought against
defendant. The district court granted summary judgment
in favor of defendant. The court found that plaintiff did
not meet his burden under Title VII to establish a prima
facie case that defendant's action was based on plaintiff's
race. The court concluded that defendant discharged its
burden of production because it had a legitimate, nondiscriminatory reason for its action that plaintiff failed to
rebut. The court held that plaintiff did not establish a
General Overview
Novo Review
[HN1] The court reviews summary judgments de novo,
to determine whether any genuine issue of material fact
exists. For that aspect, the court draws all reasonable
inferences in favor of the nonmovant, and asks whether
the evidence in the summary judgment record is such
that no reasonable juror could find in favor of the nonmovant.
App. Def. 150
Page 2
55 F.3d 1086, *; 1995 U.S. App. LEXIS 15936, **;
I.
Labor & Employment Law > Discrimination > Disparate Treatment > General Overview
[HN2] In a Title VII discrimination claim the plaintiff
must establish a prima facie case that the defendant made
an employment decision that was motivated by a protected factor. Once established, the defendant bears the
burden of producing evidence that its employment decision was based on a legitimate nondiscriminatory reason.
The burden then shifts back to the plaintiff to prove that
the defendant's proffered reasons were a pretext for discrimination. But, if the defendant has offered a legitimate
nondiscriminatory reason for its action, the presumption
of discrimination derived from the plaintiff's prima facie
case simply drops out of the picture. In work-rule violation cases, a Title VII plaintiff may establish a prima
facie case by showing either that he did not violate the
rule or that, if he did, white employees who engaged in
similar acts were not punished similarly.
Labor & Employment Law > Discrimination > Retaliation > General Overview
[HN3] A prima facie case of Title VII retaliation exists if
the plaintiff establishes that (1) he participated in statutorily protected activity, (2) he received an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse action.
Mayberry, who is black, has been employed as a
machine operator by Vought Aircraft Company since
1979. Vought uses a progressive discipline program consisting of a verbal warning, written warning, suspension,
and termination. Only disciplinary actions occurring
within the prior year can be considered in imposing progressive discipline.
Mayberry was disciplined three times in 1991 for
poor workmanship in violation of the Vought Code of
Conduct, receiving a verbal warning in March, two written warnings in June, and a three-day suspension in December. 1 He filed union grievances for each disciplinary
action, resulting, inter alia, in the agreement that, if he
had no further problems [**2] with his work until December 2, 1992, he would be reimbursed for his 1991
suspension. 2 On October 26, 1992, $ 8,000 in parts were
"scrapped" (damaged) at Mayberry's work station. He
blamed the damage on a machine malfunction, but
Vought determined that he was at least partially at fault.
Although Vought could have terminated Mayberry (because his suspension was less than a year old), it elected
instead to suspend him, in view of his seniority and the
fact that it could not determine the degree to which the
machine may have been responsible for the damage.
Mayberry was suspended for 13 days.
1 Vought's Code of Conduct states, in relevant
part: "Defective work resulting from inattention
to the job, negligence or carelessness may make it
necessary for the company to take corrective action. Deliberate production of defective work
may result in discharge".
2 Mayberry also filed discrimination charges
with the Equal Employment Opportunity Commission, none of which resulted in a finding of
discrimination.
COUNSEL: ATTORNEYS FOR APPELLANT: Noemi
A. Collie, Dallas, TX.
ATTORNEYS FOR APPELLEE: TRUE, ROHDE &
SEWELL, Mauren F. Moore, Dallas, TX.
JUDGES:
Before
GARWOOD,
BARKSDALE, Circuit Judges.
JOLLY
and
OPINION BY: RHESA HAWKINS BARKSDALE
OPINION
[*1089] RHESA HAWKINS BARKSDALE, Circuit Judge:
Robert Mayberry challenges an adverse summary
judgment on his employment discrimination and retaliation claims. Because the summary judgment record fails
to create a genuine issue of material fact (restated, would
not permit a reasonable juror to find for Mayberry on
either claim), we AFFIRM.
[**3] Mayberry filed this action in September
1993, claiming that his suspension was on account of his
race, and/or in retaliation for prior discrimination claims
brought against Vought and his participation in demonstrations against Vought for its alleged discriminatory
practices. On Vought's motion for summary judgment,
the district court held that Mayberry failed to establish a
prima facie case for retaliation, and, assuming a prima
facie case of discrimination, that Mayberry was unable to
overcome Vought's defense that the suspension resulted
from its honest belief that Mayberry had violated the
work-rule. Accordingly, summary judgment was entered
for Vought.
II.
App. Def. 151
Page 3
55 F.3d 1086, *; 1995 U.S. App. LEXIS 15936, **;
Mayberry contests the dismissal of both claims.
[HN1] We review summary judgments de novo, to determine, inter alia, whether any genuine issue of material
fact exists. Calpetco 1981 v. Marshall Exploration, Inc.,
989 F.2d 1408, 1412 (5th Cir.1993). For that aspect, we
draw all reasonable inferences in favor of the nonmovant, and ask whether the evidence in the summary
judgment record is such that no reasonable juror could
find in favor of the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510-11,
[**4] 91 L. Ed. 2d 202 (1986).
The analysis for Title VII discrimination claims is
well-known. See e.g., St. Mary's Honor Ctr. v. Hicks,
U.S. , 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248,
101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnellDouglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973). [HN2] The plaintiff must establish a prima facie case that the defendant made an employment decision that was motivated by a protected
factor. Once established, the defendant bears the burden
of producing evidence that its employment decision was
based on a legitimate nondiscriminatory reason. The
burden then shifts back to the plaintiff to prove that the
defendant's proffered reasons were a pretext for discrimination. [*1090] But, if the defendant has offered a
legitimate nondiscriminatory reason for its action, the
presumption of discrimination derived from the plaintiff's prima facie case "simply drops out of the picture",
Hicks, U.S. at , 113 S. Ct. at 2749, and "the ultimate
question [is] discrimination vel non ". Id. at , 113 S. Ct.
at 2753 (citation [**5] omitted).
A.
In work-rule violation cases, a Title VII plaintiff
may establish a prima facie case by showing "either that
he did not violate the rule or that, if he did, white employees who engaged in similar acts were not punished
similarly". Green v. Armstrong Rubber Co., 612 F.2d
967, 968 (5th Cir.), cert. denied, 449 U.S. 879, 101 S. Ct.
227, 66 L. Ed. 2d 102 (1980). Mayberry travels both
avenues, claiming that he was not responsible for the
damage, and that, even assuming he was, similarly situated white employees have not been disciplined.
1.
For showing that white employees were not disciplined, Mayberry's evidence consists of reports from
Vought's Accumulated Scrappage Material record
(ASM), read together with Vought's list of violations of
its Code of Conduct. The ASMs, which record each instance when a part is scrapped, reveal such instances (for
white and black employees) that have no corresponding
entry on Vought's violations list. Significantly, the ASMs
often include notations such as "poor workmanship" or
"operator error", apparently to assign cause for the
scrappage. Based on this evidence, Mayberry urges that
white employees were treated differently from him.
[**6] To establish a prima facie case in this manner, Mayberry must show that white employees were
treated differently under circumstances "nearly identical"
to his. Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th
Cir.1991); Smith v. Wal-Mart Stores, 891 F.2d 1177,
1180 (5th Cir.1990); Davin v. Delta Air Lines, Inc., 678
F.2d 567, 570-71 (5th Cir. Unit B 1982). In this regard,
Mayberry has offered evidence that white (and black)
employees have scrapped parts due, apparently, to operator error or poor workmanship, and were not disciplined.
However, as Vought explained, and as Mayberry's own
evidence confirms, it does not even conduct a disciplinary investigation, much less take disciplinary action,
each time a part is scrapped. The decision to investigate
is based on two factors: the history of poor work performance of the employee, and the cost of the damaged
parts. Mayberry fit both factors; he had several recent
instances of poor work performance, and the amount of
damage was $ 8,000.
For whether a white employee in "nearly identical"
circumstances has received treatment different from
Mayberry, reference to the ASMs is of little value.
Vought notes that they are not intended, [**7] and are
not used, for disciplinary purposes. Rather, they serve
only to maintain a record of each part that is scrapped,
and to provide authorization for the part's replacement.
Most importantly, they make no reference to the work
history of the employee or the amount of damage. Accordingly, they are not evidence that white employees in
"nearly identical" circumstances have been treated differently. 3 To the contrary, Mayberry's own evidence
reveals that, of the 14 other employees in his division
who were disciplined for their workmanship between
1991 and 1994, none were black--12 were white and two
were Hispanic. In sum, Mayberry's evidence could not
support a reasonable juror's finding that he was treated
differently from white employees. As such, he fails to
make a prima facie case on this basis.
3 The ASMs may well have been a starting
point from which to build a case that would withstand summary judgment. Mayberry could have
gained information, through discovery, on the individuals listed in the ASMs, which may well
have substantiated his claim of disparate treatment. Without more, however, the ASMs are not
helpful.
[**8] 2.
On the other hand, a prima facie case may be established by showing that the plaintiff did not violate the
App. Def. 152
Page 4
55 F.3d 1086, *; 1995 U.S. App. LEXIS 15936, **;
work-rule for which he was disciplined. Green, 612 F.2d
at 968. We agree with the district court that [*1091]
Mayberry created a fact question on whether he was responsible for the damage. Although the conclusion from
Vought's investigation was that Mayberry was at least
partially at fault, Vought admitted that "it could have
been possible to have had a software problem". Furthermore, Mayberry offered evidence that his machine had
malfunctioned in the past. This, combined with Mayberry's affidavit statement that he was not at fault, creates
a reasonable question of whether Mayberry violated the
work-rule.
Vought responds to Mayberry's prima facie case by
insisting that there was no racial motivation in its decision to suspend Mayberry; that the decision was based
solely on its conclusion, following an investigation, that
Mayberry was at least partially at fault. With this,
Vought has discharged its burden of production, 4 and the
burden shifted to Mayberry to prove that Vought's proffered reason is merely a pretext for discrimination.
Hicks, U.S. at [**9] , 113 S. Ct. at 2749.
4 Mayberry appears to suggest that he need not
rebut Vought's nondiscriminatory reason because
a fact issue exists on whether he violated the
work-rule. Vought's burden, however, is only one
of production. Hicks,
U.S. at , 113 S. Ct. at
2749. It "need not persuade the court that it was
actually motivated by the proffered reasons". Id.
(quoting Burdine, 450 U.S. at 254, 101 S. Ct. at
1094).
Mayberry attempts to overcome Vought's nondiscriminatory reason essentially by reasserting his prima
facie evidence. As discussed below, we conclude that, as
a matter of law, Mayberry has failed to rebut that nondiscriminatory reason.
The material fact issue on whether Mayberry was at
fault exists only because Vought admitted that, although
it found no evidence of machine error, it could not be
certain that some sort of machine malfunction did not
occur. 5 Nonetheless, in Vought's judgment it was clear
enough that Mayberry was partially at fault. And, because it was [**10] not certain that Mayberry was completely at fault, Vought elected only to suspend him,
whereas it could have terminated him. Even so, Vought's
uncertainty, together with Mayberry's adamant denial,
allows for a reasonable question of fact. Mayberry seizes
on this fact question as the basis for his contention that
Vought's nondiscriminatory reason for the suspension is
not credible. 6 Mayberry misses the mark. The question is
not whether an employer made an erroneous decision; it
is whether the decision was made with discriminatory
motive.
5
The data read-out on the machine, which
would apparently have indicated if there had been
machine error, "had been cleared". Mayberry denied having cleared the machine, and insisted that
it lost power and cleared itself.
6 In their briefs, the parties argued at length
over whether a plaintiff may rebut a defendant's
nondiscriminatory reason by showing only that
the reason is not credible, without offering proof,
in addition to the prima facie case, of discriminatory motive. Our en banc court may soon consider this issue. See Rhodes v. Guiberson Oil
Tools, 39 F.3d 537 (5th Cir.1994), reh'g en banc
granted, 49 F.3d 127 (5th Cir.1995). Because we
conclude that no reasonable juror could find that
Vought's nondiscriminatory reason was not
credible, we do not reach this issue.
[**11]
Even an incorrect belief that an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason. We do not try in court the validity of
good faith beliefs as to an employee's
competence. Motive is the issue.... [A]
dispute in the evidence concerning ... job
performance does not provide a sufficient
basis for a reasonable factfinder to infer
that [the] proffered justification is unworthy of credence.
Little, 924 F.2d at 97. See also Sherrod v. Sears Roebuck & Co., 785 F.2d 1312 (5th Cir.1986); Turner v.
Texas Instruments, Inc., 555 F.2d 1251, 1256 (5th
Cir.1977); Jones v. Gerwens, 874 F.2d 1534, 1540 (11th
Cir.1989).
Attempting to offer more than the mere dispute over
whether Vought properly found him at fault, Mayberry
resorts to the evidence we rejected in the context of his
prima facie case: that white employees are treated differently. Needless to say, Mayberry's evidence of disparate
treatment is no more helpful or persuasive in the context
of rebutting Vought's nondiscriminatory explanation. As
noted, Mayberry has not offered evidence sufficient to
support a finding that white [*1092] employees in circumstances "nearly identical" [**12] to his have been
treated differently. See Little, 924 F.2d at 96-97 (rejecting rebuttal evidence of disparate treatment because circumstances were not "nearly identical").
Finally, Mayberry appears to suggest that Vought's
nondiscriminatory explanation is suspect because, according to Mayberry, Vought has a propensity for discrimination because of a finding by the Department of
App. Def. 153
Page 5
55 F.3d 1086, *; 1995 U.S. App. LEXIS 15936, **;
Labor that Vought had occasionally discriminated on the
basis of race in its promotion decisions. 7 We will not
entertain such a suggestion. According to his affidavit,
Mayberry has brought, or been a party to, at least six
prior charges of discrimination against Vought, none of
which have resulted in a finding of discrimination
against Mayberry. Just as we cannot assume that Mayberry's past conduct suggests a propensity to file false
charges, we cannot assume that Vought's past conduct
suggests it has discriminated against Mayberry. 8
7 Mayberry also asserts that his workmanship
violations began to issue only after he joined in a
class action discrimination complaint against
Vought, and after his participation in picketing
against it.
[**13]
8 We note that the Department of Labor found
only individual instances of discrimination in
promotion decisions, and "these instances did not
occur in any pattern or practice that would suggest Blacks, as a class, were treated differently
because of their race".
9 Mayberry also rests a prima facie case on the
basis of the evidence offered for his discrimination claim. To the extent that such evidence may
be relevant to a prima facie case for retaliation,
we find it insufficient, as discussed in part II.A.,
supra.
According to his affidavit, Mayberry first engaged in
protected activity (filed an EEOC charge) sometime "in
the mid 1980's", and continued, with regularity, in protected activity through 1992. 10 In this regard, there is
nothing inherently "suspicious" about a 13-day suspension that occurs at least several years after protected activity [**15] begins. Indeed, one might argue that the
"timing" here is evidence against retaliation. We need
not go that far. Suffice it to say that we find insufficient
evidence to support a finding that "but for" Mayberry's
protected activity, he would not have received the 13-day
suspension. See Jack v. Texaco Research Ctr., 743 F.2d
1129, 1131 (5th Cir.1984) (noting that prima facie retaliation requires "but for" causation).
10 It is unclear when Mayberry filed his first
EEOC complaint. Mayberry states in his affidavit
that he had filed EEOC complaints "in the mid
1980's". Mayberry filed an EEOC charge in connection with his delayed promotion to Class B
machine operator. He again filed an EEOC
charge in connection with his delayed promotion
to Class A machine operator. The class A promotion occurred in 1988; therefore, his first EEOC
complaint (if it was for his class B promotion)
must have occurred prior to 1988. Mayberry also
engaged in protected activity (discrimination
charges and/or picketing against Vought) in 1988,
1990, 1991, and 1992.
In sum, based on the summary judgment record, a
reasonable juror could not conclude that Mayberry received the 13-day suspension because of his race. Therefore, summary judgment on this claim was proper.
B.
[HN3] A prima facie case of retaliation exists if the
plaintiff establishes that (1) he participated in statutorily
protected activity, (2) he received an adverse employment action, and (3) a causal connection exists between
the protected activity and the adverse action. Armstrong
v. City of Dallas, 997 F.2d 62, 65 n. 3 (5th Cir.1993).
The parties agree that Mayberry meets the first two elements. Vought contends, however, and the district court
agreed, that Mayberry failed to create a material fact
issue on the existence of a causal connection between his
protected activity and his suspension.
Mayberry asserts that the timing of [**14] the suspension in relation to his protected activity establishes
the required nexus. 9 The timing of the adverse employment action can be a significant, although not necessarily
determinative, factor. See e.g., Shirley v. Chrysler First,
Inc., 970 F.2d 39, 42 (5th Cir.1992) (discussing evaluation of "timing" evidence). In this case, however, it is
unclear that the timing of the suspension benefits Mayberry's case.
[**16] [*1093] Furthermore, assuming arguendo
that Mayberry established a prima facie case, he fails, for
summary judgment purposes, to overcome Vought's legitimate nondiscriminatory reason for the suspension--its
belief that Mayberry violated the work-rule. The analysis
in part II.A, supra, applies here.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
App. Def. 154
Page 1
ROBERTS O'BRIEN, Plaintiff, v. WALGREEN COMPANY d/b/a WALGREENS,
Defendant.
Civil Action No. 3:09-CV-1053-L
August 31, 2010, Filed
COUNSEL: [*1] For Roberts O'Brien, Plaintiff: W D
Masterson, III, LEAD ATTORNEY, John Henry
Crouch, IV, Theodore Carl Anderson, III, Kilgore &
Kilgore, Dallas, TX.
For Walgreen Company, doing business as Walgreens,
Defendant: Gayla C Crain, LEAD ATTORNEY, Fred
Gaona, III, Merrill S Walls, Spencer Crain Cubbage
Healy & McNamara PLLC, Dallas, TX.
JUDGES: Sam A. Lindsay, United States District Judge.
OPINION BY: Sam A. Lindsay
OPINION
MEMORANDUM OPINION AND ORDER
Before the court is Defendant's Motion for Summary
Judgment, filed May 28, 2010. After carefully considering the motion, response, reply, record, and applicable
law, the court grants Defendant's Motion for Summary
Judgment.
I. Factual and Procedural Background
Plaintiff Roberts O'Brien ("Plaintiff" or "O'Brien")
filed his Original Complaint on June 5, 2009 (the "Complaint"). He asserts a single count alleging violation of
the Americans with Disabilities Act, 42 U.S.C. § 12101,
et seq. ("ADA"), against Defendant Walgreen Company
d/b/a Walgreens ("Defendant" or "Walgreens"). O'Brien
contends that Walgreens intentionally discriminated
against him based upon an alleged disability, cervical
stenosis, when it wrongfully terminated his employment
and refused to accommodate his disability. [*2] The
court sets forth the undisputed facts. Plaintiff largely
adopted Defendant's statement of facts, and the court
therefore relies upon the facts set forth in Defendant's
motion, which are supported by evidence in its appendix.
Plaintiff first worked for Walgreens at the Walgreens Annex in Waxahachie from September 2006
through October 2006. He began working at the Walgreens Distribution Center as a truck loader in January
2007. In April 2007, Plaintiff applied for a General
Warehouse position. Duties of this job include: "moving
product to storage areas using proper equipment, efficiently staking and storing merchandise in the appropriate areas, and participating in physical inventories, aisle
inventories, and other merchandise verification programs." Defs.' Mot. 4, ¶ 4. This position is located in the
Walgreens Distribution Center, which has four levels of
shelving for products and merchandise. As part of the
job, the employee must operate a forklift to travel up the
four levels and pull items from the shelves.
Plaintiff reviewed the job description and a video
regarding the General Warehouse position before applying for the job. He understood that the position involved
operating [*3] heavy machinery and working in high
places. He was offered the position on May 22, 2007,
and he reported to orientation on June 7, 2007. The next
day, Plaintiff gave Walgreens a copy of a Physical Medicine & Rehabilitation Outpatient Note, dated March 26,
2003, from Dr. Garrison.
O'Brien met with Debra Jones, human resource generalist, and Tammy Titlow, outbound manager, on June
12, 2007. They told him that he could not continue working until he provided an updated medical report. Jones
requested answers to three specific questions: "1. The
App. Def. 155
Page 2
2010 U.S. Dist. LEXIS 90815, *
nature of the medical condition; 2. Whether there are any
work-related limitations; and 3. What are those limitations and the duration of the medical condition." Id. 5, ¶
10.
motion for summary judgment. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct.
2097, 147 L. Ed. 2d 105 (2000); Anderson, 477 U.S. at
254-55.
Plaintiff saw his doctor, and on June 14, 2007,
O'Brien provided Defendant with a release (the "Release") stating "Full Duty for Mr. O'Brien's Job." Jones
told O'Brien that the Release was unacceptable because it
did not address the three specific questions and again
requested answers to those questions. On June 18, 2007,
Dr. Garrison faxed an unsigned letter to Walgreens responding to the three questions. In response to the second question, Dr. Garrison stated that there were [*4] no
work-related limitations because the position did "not
require balancing or work at significantly high places
requiring balancing activities." Id. 5, ¶ 13.
Once the moving party has made an initial showing
that there is no evidence to support the nonmoving
party's case, the party opposing the motion must come
forward with competent summary judgment evidence of
the existence of a genuine fact issue. Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S. Ct.
1348, 89 L. Ed. 2d 538 (1986). [*6] Mere conclusory
summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325
(5th Cir. 1996). Unsubstantiated assertions, improbable
inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr,
19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S.
871, 115 S. Ct. 195, 130 L. Ed. 2d 127 (1994). The party
opposing summary judgment is required to identify specific evidence in the record and to articulate the precise
manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on
the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.),
cert. denied, 506 U.S. 832, 113 S. Ct. 98, 121 L. Ed. 2d
59 (1992). "Only disputes over facts that might affect the
outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a
court in ruling on a summary judgment motion. Id. [*7]
If the nonmoving party fails to make a showing sufficient
to establish the existence of an element essential to its
case and on which it will bear the burden of proof at trial,
summary judgment must be granted. Celotex, 477 U.S. at
322-23.
On June 29, 2007, Jones informed O'Brien that Dr.
Garrison did not adequately respond to the three questions and that Walgreens needed further information regarding the balance issues. She asked O'Brien for this
information again on July 9, 2007. On July 16, 2007, Dr.
Garrison told Plaintiff that he needed to submit to a balance test before he could provide adequate answers.
Jones asked again for medical information regarding the
balance issues on July 20, 2007. Plaintiff never took a
balance test or submitted the requested medical information.
In November 2007, Jones informed O'Brien that he
was off the Walgreens payroll. He was told that he could
not return to work unless he took the balance test or provided additional information from his doctor.
II. Legal Standard -- Motion for Summary Judgment
Summary judgment shall be rendered when the
and that the moving [*5] party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a
material fact is "genuine" if the evidence is such that a
nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
When ruling on a motion for summary judgment, the
court is required to view all facts and inferences in the
light most favorable to the nonmoving party and resolve
all disputed facts in favor of the nonmoving party.
Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540
(5th Cir. 2005). Further, a court "may not make credibility determinations or weigh the evidence" in ruling on
III. Analysis
Defendant now moves for summary judgment on
Plaintiff's ADA claims. It argues that he is not disabled
as defined by the ADA, that he was not a qualified individual under the statute, that his failure to accommodate
claim must fail, that he failed to engage in the interactive
process regarding a disability accommodation, and that
his employment was terminated for legitimate, nondiscriminatory reasons. In response, O'Brien asserts that
Walgreens regarded him as disabled, that he was a qualified individual under the statute, that Defendant failed to
accommodate him, that he pursued the interactive process regarding an accommodation, and that his employ-
App. Def. 156
Page 3
2010 U.S. Dist. LEXIS 90815, *
ment was terminated for pretextual, discriminatory reasons.
A. Legal Standard under the ADA
The ADA is an antidiscrimination statute designed
to remove barriers that prevent qualified individuals with
disabilities from enjoying employment opportunities
available to persons without disabilities. [*8] Taylor v.
Principal Financial Group, Inc., 93 F.3d 155, 161 (5th
Ed. 2d 515 (1996). The ADA prohibits discrimination
against a qualified individual because of a disability "in
regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training; and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112(a).
A person "may establish a claim of discrimination
under the ADA either by presenting direct evidence or by
using the indirect method of proof set forth in McDonnell
Douglas Corp. v. Green[, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973)]." Seaman v. CSPH, Inc., 179
F.3d 297, 300 (5th Cir. 1999). To establish a prima facie
case of intentional discrimination under McDonnell
Douglas, a plaintiff must show that he "(1) suffers from a
disability; (2) was qualified for the job; (3) was subject
to an adverse employment action, and (4) was replaced
by a non-disabled person or treated less favorably than
non-disabled employees." Id. The employer then "must
show a legitimate, nondiscriminatory reason for its action." Id. "The employee ultimately bears the burden of
showing that the employer's actions were motivated by
[*9] considerations prohibited by the statute." Id.
A person is disabled under the ADA if he (1) has a
physical or mental impairment that substantially limits
one or more of the major life activities, (2) has a record
of such impairment, or (3) is regarded as having such an
impairment. 42 U.S.C. § 12102(2). The court must interpret this definition strictly. Carmona v. Southwest Airlines Co., 604 F.3d 848, 855 (5th Cir. 2010).
B. Disability
With respect to Plaintiff's alleged disability, Walgreens argues that he is not disabled, that he has no record of a disability, and that it did not regard him as disabled. In response to the motion, O'Brien argues only that
Walgreens regarded him as disabled. He points to 42
U.S.C. § 12102(1)(C), which includes as a definition of
"disabled" as "being regarded as having such an impairment." Because Plaintiff only responds to Walgreens's
argument with respect to regarding him as disabled, the
court finds that he has abandoned any claim that he is
disabled or that he has a record of any disability.
To meet this definition of "disabled," a plaintiff must
show that: "(1) a covered entity mistakenly believes that
a person has a physical impairment that substantially
[*10] limits one or more major life activities, or (2) a
covered entity mistakenly believes that an actual,
nonlimiting impairment substantially limits one or more
major life activities." Kemp v. Holder, 610 F.3d 231, 237
(5th Cir. 2010) (quoting Sutton v. United Air Lines, Inc.,
527 U.S. 471, 489, 119 S. Ct. 2139, 144 L. Ed. 2d 450
(1999)). An employer may "regard an employee as impaired or restricted from one position or a narrow range
of jobs without regarding him as disabled." E.E.O. C. v.
E.I. Du Pont de Nemours & Co., 480 F.3d 724, 729 (5th
Cir. 2007) (quotation and footnote omitted).
Defendant argues that it was Plaintiff who raised the
issue of his medical condition during orientation and that
it simply asked for updated information. It points to the
pertinent regulations, which provide: "A covered entity
may require a medical examination (and/or inquiry) of an
employee that is job-related and consistent with business
necessity. A covered entity may make inquiries into the
ability of an employee to perform job-related functions."
29 C.F.R. § 1630.14(c). Walgreens further argues that
the burden is on O'Brien to show that it regarded his impairment as "substantially limiting." Walgreens argues
that it never regarded O'Brien [*11] as disabled because
he failed to provide medical information, and the provided information raised questions about whether he
could perform the job.
Walgreens argues that Plaintiff's doctor's note initially raised the issue of whether he could perform the
job functions of the General Warehouse position. It
sought further medical information, which Dr. Garrison
ultimately stated he could not provide without performing a balance test. It contends that Plaintiff refused to
take the test, and therefore Dr. Garrison could not provide the information it needed. It also points to Plaintiff's
testimony that he did not believe that Walgreens treated
him as disabled. He did not mark the box on the EEOC
questionnaire to indicate that he believed that Walgreens
regarded him as disabled. Walgreens contends that there
is no evidence to support his theory that it regarded him
as disabled, his sole remaining basis for contending that
he is disabled pursuant to the ADA.
O'Brien responds that he has a physical impairment
but was treated by Walgreens as though this impairment
substantially limited him in a major life activity. He contends that he had recently been employed by Walgreens
in similar jobs and [*12] that the job description does
not include any requirements relating to balance. He further states that he provided Walgreens with information
about his impairment because he thought it might assist
him obtain government subsidies.
App. Def. 157
Page 4
2010 U.S. Dist. LEXIS 90815, *
Plaintiff argues that the only basis for Walgreens's
decision to deny him the opportunity to work was his
failure to take a balance test. He states that he could handle the jobs of picker and loader without problems and
that there was no balance requirement in the job description.
The court determines that there is no genuine issue
of material fact whether Walgreens regarded O'Brien as
disabled. Plaintiff admits that Walgreens did not regard
him as disabled in his deposition testimony. The EEOC
questionnaire that O'Brien filled out is consistent with
this statement, as Plaintiff did not check the box on the
EEOC questionnaire that he believed Walgreens regarded him as disabled.
His argument in response to the motion for summary
judgment, without any supporting facts or evidence, is
insufficient to create a fact question that would preclude
summary judgment. While O'Brien points to the job descriptions provided by Walgreens and contends that it
does not require [*13] any specific balance requirement,
he does not dispute that the job actually involved working in high places and job duties that involve balance.
O'Brien testified at his deposition that he understood that
an essential function of the General Warehouse position
was that an employee to work up to four levels off the
ground and that the position involved heights. He does
not present any evidence that his prior jobs at Walgreens
required working in high places or balancing. While
Plaintiff's physician stated that he did not have any workrelated limitations, this statement was made after Dr.
Garrison incorrectly assumed that the position "does not
require balancing or work at significantly high places
requiring balancing activities." Def. App. 107. Accordingly, Dr. Garrison's Release does not save Plaintiff's
claim because it is clear he did not know about the actual
requirements of the General Warehouse position.
There is no evidence that Walgreens considered
O'Brien impaired or disabled in any way; the only evidence is that Plaintiff raised the issue of his impairment
and then refused to consent to a test that his own physician required to answer Walgreens's questions about his
possible [*14] work-related limitations. An employer's
request for information is not tantamount to a showing
that the employer regarded the employee as limited in the
ability to perform a major life activity. Garrett v. Autozone Inc., 224 F.3d 765, 2000 WL 992259, *2 (5th Cir.
2000) (citing Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d
Cir. 1996) and Cody v. CIGNA Healthcare of St. Louis,
Inc., 139 F.3d 595, 599 (8th Cir. 1998)). Even if Walgreens considered O'Brien to be impaired for the General
Warehouse job, there is no evidence that it considered
him impaired or disabled for any other jobs, and "in order for an employer to have regarded an impairment as
substantially limited in the activity of working, the em-
ployer must regard an individual as significantly restricted in the ability to perform a class or broad range of
jobs." Sherrod v. American Airlines, Inc., 132 F.3d 1112,
1121 (5th Cir. 1998) (citing Bridges v. City of Bossier,
92 F.3d 329, 332 (5th Cir. 1996)).
The court has carefully reviewed the parties' arguments and evidence and concludes that there is no genuine issue of material fact whether O'Brien is disabled
under the ADA. He argues solely that Walgreens regarded him as disabled, [*15] but the evidence does not
support this contention. Because this argument is dispositive on the ADA discrimination claim, the court does
not reach the other arguments made by Defendant regarding whether Plaintiff was a qualified individual under the ADA and whether it terminated him for legitimate, nondiscriminatory reasons.
C. Duty to Accommodate
Defendant also moves for summary judgment on
Plaintiff's claim that Walgreens failed to accommodate
him. It contends that, because O'Brien argues only that
Walgreens regarded him as disabled, it had no duty to
accommodate him. In support of its argument, Plaintiff
cites Newberry v. East Texas State University, 161 F.3d
276 (5th Cir. 1998).
Plaintiff argues that Walgreens still had a duty to accommodate him. It distinguishes Newberry and cites
extensively from a case from the Eleventh Circuit Court
of Appeals, D 'Angelo v. Conagra, 422 F.3d 1220 (11th
Cir. 2005).
In Newberry, the court stated: "[A]n employer need
not provide reasonable accommodation to an employee
who does not suffer from a substantially limiting impairment merely because the employer thinks the employee has such an impairment." 161 F.3d at 280. Although some courts, such as the [*16] Eleventh Circuit,
have criticized Newberry, district courts in this circuit,
both before and after that decision, dismissed duty to
accommodate claims in cases where a plaintiff only asserted that his employer regarded him as disabled. Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp. 465, 476
(N.D. Tex. 1997) ("[T]he duty to make a reasonable accommodation arises only when the individual is disabled;
no such duty arises when the individual merely is regarded as being disabled as defined under the ADA.")
(citation and quotations omitted); Bennett v. Calabrian
Chem. Corp., 324 F. Supp. 2d 815, 838 (E.D. Tex. 2004),
aff'd, 126 F. App'x 171 (5th Cir. 2005).
In light of these decisions, the court determines that
Plaintiff's duty-to-accommodate claim fails as a matter of
law because there is no evidence that he was disabled or
had a record of a disability. There is therefore no genuine
issue of material fact with respect to O'Brien's duty to
App. Def. 158
Page 5
2010 U.S. Dist. LEXIS 90815, *
accommodate claim, and Defendant is entitled to judgment as a matter of law on this claim. The court therefore
does not address Defendant's arguments regarding
whether Plaintiff requested an accommodation or failed
to engage in the interactivity process [*17] regarding a
disability accommodation.
IV. Conclusion
For the foregoing reasons, the court grants Defendant's Motion for Summary Judgment and dismisses
with prejudice Plaintiff's ADA claims. The court will
enter judgment by separate document as required by Rule
58 of the Federal Rules of Civil Procedure.
It is so ordered this 31st day of August, 2010.
/s/ Sam A. Lindsay
Sam A. Lindsay
App. Def. 159
Page 1
1 of 3 DOCUMENTS
Positive
As of: Oct 19, 2011
KEITH POWERS, Plaintiff, v. USF HOLLAND, INC., Defendant.
Civil Action No. 3:07-CV-246 JVB
INDIANA, HAMMOND DIVISION
May 13, 2010, Decided
May 13, 2010, Filed
PRIOR HISTORY: Powers v. USF Holland, Inc., 2010
U.S. Dist. LEXIS 11981 (N.D. Ind., Feb. 9, 2010)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff employee alleged that defendant employer violated the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C.S. §
12101 et seq., by failing to provide him with reasonable
accommodations after he suffered a back injury. The
court denied the employer's motion for summary judgment on the employee's claim that the employer maintained a 100% healed policy. The employer asked the
court to reconsider the partial denial of summary judgment.
OVERVIEW: The employer contended that the employee lacked standing to challenge the alleged 100%
healed policy because the court had found him not to be
a qualified individual with a disability and, in order to
challenge the employer's policies, the employee first had
to establish that he was disabled. The employee responded that the ADA Amendments Act of 2008
(ADAAA), which took effect on January 1, 2009, overruled cases that required him to show that he was a qualified individual with a disability in order to maintain a per
se discrimination claim. Because the employee did not
create a genuine issue of material fact that he was a
qualified individual with a disability, his per se discrimination claim failed as a matter of law. Having determined that the employee was not a qualified individual
with a disability under the ADA, the court found that he
lacked standing to bring a per se discrimination claim
against the employer under the law as it existed before
and after January 1, 2009. To be protected by the ADA
and to challenge the employer's failure to accommodate
him as a result of the alleged 100% healed policy, the
employee had to be a qualified individual with disability
under the Act.
OUTCOME: The court granted the employer's motion
for reconsideration and granted summary judgment in
favor of the employer on employee's claim of per se discrimination under the ADA.
CORE TERMS: disability, driver, impairment, accommodation, per se, disabled, healed, return to work, deposition, supervisor, dock, matter of law, reasonable accommodations, issues of material fact, summary judgment, discrimination claim, accommodate, terminal,
genuine, freight, truck driver, medical records, returned
to work, clarification, forklift, switch, doctor, pain, remaining claims, standing to challenge
App. Def. 160
Page 2
2010 U.S. Dist. LEXIS 49109, *
Governments > Legislation > Effect & Operation >
Amendments
Governments > Legislation > Effect & Operation >
Retrospective Operation
Overview
General Overview
[HN1] A defendant's failure to provide a plaintiff with
accommodations before January 1, 2009, is not controlled by the Americans with Disabilities Act Amendments Act of 2008, as the amendments are not retroactive.
Labor & Employment Law > Discrimination > Disability Discrimination > Employment Practices > General
Overview
[HN2] Per se discrimination for a 100% healed policy
requires that a plaintiff be "disabled" or "otherwise qualified" under the Americans with Disabilities Act of 1990,
42 U.S.C.S. § 12101 et seq.
Labor & Employment Law > Discrimination > Disability Discrimination > Employment Practices > General
Overview
[HN3] A showing of disability is a prerequisite for pursuing a claim against defendant's discriminatory policies.
[HN5] 42 U.S.C.S. § 12102(3).
General Overview
[HN6] 42 U.S.C.S. 12201(h).
General Overview
[HN7] By excluding the requirement to accommodate
individuals who are only regarded as disabled, the
Americans with Disabilities Act Amendments Act of
2008 recognizes the obvious: if an individual is not actually disabled, then he or she does not need the accommodation in the first place. Thus, while an employer may
not discriminate against persons it perceives as disabled,
the law does not impose a duty upon that employer to
accommodate what turns out to be a fictional impairment.
COUNSEL: [*1] For Keith Powers, Plaintiff: Jeffrey S
Wrage, LEAD ATTORNEY, Blachly Tabor Bozik &
Hartman LLC, Valparaiso, IN.
For USF Holland Inc, Defendant: Jennifer L Whitney,
Rebecca J Bennett PHV, T Merritt Bumpass PHV, Jr,
LEAD ATTORNEYS, Frantz Ward LLP, Cleveland,
OH; Michael P Palmer, Barnes & Thornburg LLP SB/IN, South Bend, IN.
JUDGES: JOSEPH S. VAN BOKKELEN, UNITED
STATES DISTRICT JUDGE.
OPINION BY: JOSEPH S. VAN BOKKELEN
Labor & Employment Law > Discrimination > Disability Discrimination > Coverage & Definitions > Disabilities > Impairments > General Overview
[HN4] See 42 U.S.C.S. § 12102(1).
OPINION
OPINION AND ORDER
A. Background
Plaintiff Keith Powers alleged that his employer,
USF Holland, Inc., violated the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et. seq., by
failing to provide him with reasonable accommodations
App. Def. 161
Page 3
2010 U.S. Dist. LEXIS 49109, *
after he suffered a back injury. Plaintiff claimed that Defendant violated the ADA by both enforcing a 100%
healed policy and by discriminating against him on the
basis of his disability. Plaintiff also brought state law
claims of negligent infliction of emotional distress and
retaliatory discharge. Finding that there were genuine
issues of material fact, the Court denied Defendant's motion for summary judgment on Plaintiff's claim that Defendant maintains a 100% healed policy, but ruled for
Defendant as a matter of law on his remaining claims.
The [*2] Court based its rulings on the following facts: 1
1 The Court incoporates the finding of facts
from its February 9, 2009, Order.
Defendant is a freight transportation company operating terminals throughout the United States, including
one in South Bend, Indiana. Defendant is an employer
pursuant to Title VII of the Civil Rights Act of 1964, as
amended, and pursuant to 42 U.S.C. § 12111(5)(A).
Plaintiff began his employment with Defendant as a
truck driver at the South Bend Terminal in the spring of
1999. There are two types of truck driver classifications
at the South Bend terminal: road drivers and city drivers.
City drivers remain within a one-hundred mile radius of
the South Bend terminal and also perform dock work.
Dock work involves loading freight into and out of the
trucks with a forklift. Road drivers also load freight with
forklifts, but they drive longer distances across state
lines.
On January 19, 2002, Plaintiff drove a company
truck over a rough patch of road on Interstate 90 and
injured his back. Plaintiff experienced pain in his spine,
and numbness and tingling in his right leg. Plaintiff
sought treatment in a hospital emergency room. Plaintiff's physicians gave various [*3] diagnoses including
bulging, herniated discs, and an associated annular fissure at the L5-S1 level of his lumbar spine. Plaintiff reported his injury to Defendant and filed a claim for
worker's compensation benefits, which he received. A
record written by worker's compensation case manager
Ray Ananea states that the "loss is compensable-Employer does not question back injury. . . . Emplyr [sic]
states this is a common description they see." (DE 64,
Ex. 35, at D0168). Defendant classified Plaintiff's status
as off work due to a work-related injury. (DE 64, Ex. 3).
However, on May 8, 2002, Defendant sent Plaintiff to an
independent medical examiner, Dr. Matz, who disagreed
with the diagnosis of a bulging disc and fissure. Dr. Matz
recommended that Plaintiff return to work without limitation or restriction. Plaintiff's worker's compensation
benefits were then terminated, and he returned to work in
June, about five months after the injury.
After Plaintiff returned to work, he stayed on the job
for the next two years. During his two-year return to
work, Plaintiff received awards from Defendant for his
successful driving record with the company. He also
received safe driver awards and received [*4] positive
work evaluations. (DE 64, Ex. 4). In March 2004, Plaintiff requested a switch to a city driver position, and his
request was granted. However, he was experiencing difficulty getting out of bed, bending over, and sitting in a
forklift doing dock work for eight hours a day as a city
driver. (DE 38, Ex. 3, Plaintiff's Deposition). Plaintiff
then requested a switch back to a road driver. Defendant
alleges that it denied Plaintiff's request to switch back to
a road driver because the switching procedures did not
allow him to transfer before he had spent one year and
one day in the new position; that he never completed a
switching request form; and that his treating physician
had not placed him on medical restrictions.
In August 2004, Plaintiff's supervisor reprimanded
him for working slowly as a result of his back pain.
Plaintiff's physician, Dr. Magill, noted in his report that
Plaintiff likely had a herniated disc and that Plaintiff
complained of pain which prevented him from working.
Dr. Magill recommended that Plaintiff discontinue work
until further notice. (DE 64, Ex. 6). Defendant placed
Plaintiff on leave, and Plaintiff did not forfeit his seniority with the company.
Effective [*5] January 3, 2006, Dr. Magill cleared
Plaintiff to return to work with the following restrictions:
"(1) limit hours of dock work; (2) avoid dock plates as
much as possible; (3) tractor needs to be supplied with
air seat, suspension, cab; and (4) road driver work only."
(DE 64, Ex. 8). Plaintiff presented his restrictions to his
supervisor and requested placement as a road driver.
Fellow employees informed Plaintiff that Holland had
open road driver positions. Plaintiff also indicated he
could successfully work in other positions such as a dispatcher.
Defendant required Plaintiff to provide clarification
regarding his requested accommodations; however, from
this point on the communications broke down. The parties disagree as to who caused a breakdown in the clarification process. Defendant required Plaintiff to see Dr.
Troy Bergin, at Wipperman Occupational Health, for a
"work/fit for duty evaluation." (DE 64, Ex. 26). The parties disagree about Dr. Bergin's evaluation of Plaintiff.
Plaintiff claims that Dr. Bergin released him to work
without restrictions, as indicated by the words "Fit For
Duty" which appear on his medical report. (DE 64, Ex.
23). Defendant claims that Dr. Bergin requested [*6]
more medical records and did not determine whether
Plaintiff was able to work. (DE 38, Ex. 4). Defendant
claims that Dr. Bergin could not clarify Plaintiff's condition or need for accommodations because Plaintiff's past
App. Def. 162
Page 4
2010 U.S. Dist. LEXIS 49109, *
medical records could not be obtained. Defendant also
alleges that Plaintiff personally refused to provide clarification of his restrictions on an accommodation form
provided by Defendant.
Plaintiff offers evidence to the contrary. First, Plaintiff, presents the signed medical authorization form that
allows Dr. Bergin to obtain his medical records. (DE 64,
Ex. 27). Second, Plaintiff presents Dr. Bergin's record, in
which the doctor notes that Defendant's Director of Human Resources, Stacey VandeVusse, instructed Dr. Bergin to discontinue evaluation of Plaintiff's ability to work
because he had not been cleared to work without restrictions by his own physician. (DE 64, Ex. 22, pp. 26-28,
Dr. Bergin's deposition). VandeVusse informed Dr. Bergin that Plaintiff could not be considered for work until
he was released without restrictions. (DE 64, Ex. 13). Dr.
Troy Bergin's record notes that Vandevusse "actually
said that until he [Plaintiff] is released fully, they would
not [*7] need us to do a return to work evaluation. . . .
She said Kurt [Plaintiff's supervisor] is going to call Mr.
Powers and let him know that until he is released fully,
without restrictions, that they will not return him to
work." (DE 64, Ex. 13).
A supervisor did inform Plaintiff that he had to be
entirely free from work restrictions before he would be
considered for work. Plaintiff's supervisor states in a
memorandum to the Human Resources Director that he
"would not consider [Plaintiff] for work until his doctor
issued a release with no restrictions. Keith stated that he
would probably always have restrictions." (DE 64, Ex.
12).
Furthermore, Defendant's Labor Relations Manager
Neal London, who has been with the company for thirteen years, stated in his deposition that Defendant's policy requires injured workers to have a medical release
with no restrictions before they will be returned to work:
"They [injured workers] cannot return to work from an
on-the-job injury without full release to return to work."
(DE 64, Ex. 17, p. 29). Mr. London affirmed that release
to return to work required a medical release with no restrictions. Id.
Plaintiff remains on extended leave and has not forfeited [*8] his seniority with Defendant.
Currently, Plaintiff is employed at Denham AgriCenter, his father's company, as a warehouse foreman.
(DE 38, Ex. 3, p. 18, Excerpts from Plaintiff's Deposition). Plaintiff began work there in late 2005 or early
2006. Plaintiff drives twenty minutes to the family farm
and performs tasks such as cleaning bins, running farm
equipment, and running the business. Plaintiff described
his position as an "all-purpose employee." (DE 38, Ex. 3,
p. 55). He also stated that his current work is "more
physically demanding" than the work he would be doing
for Defendant.
As to his current health, Plaintiff testified in his
deposition that he can sit in a chair for at least two hours,
and has no trouble lying flat or walking. He also stated
he can perform household chores and has no problem
bathing himself. (DE 38, Ex. 3, p. 154-56).
B. Parties' Contentions
In ruling on the Defendant's motion for summary
judgment, the Court found that Plaintiff did not create a
genuine issue of material fact as to his alleged disability
and that he was not disabled as a matter of law. The
Court, however, found genuine issues of material fact on
the question of whether Defendant denied reasonable
[*9] accommodations to Plaintiff as a result of the alleged 100% healed policy.
Defendant now asks the Court to reconsider the partial denial of summary judgment. Defendant contends
that Plaintiff lacks standing to challenge the alleged
100% healed policy because the Court has found him not
to be a qualified individual with a disability. Defendant
submits that Plaintiff must establish that he is disabled
before he is allowed to challenge Defendant's policies. 2
2 Defendant did not raise the issue of standing
in its original briefs. While generally, this precludes a party from raising such issues later, for
the sake of efficiency, the Court allows Defendant's motion for reconsideration.
Plaintiff responds by arguing that the ADA
Amendments Act of 2008 (ADAAA), which took effect
on January 1, 2009, overruled cases that required a plaintiff to show that he was a qualified individual with a disability in order to maintain a per se discrimination claim.
Plaintiff also insists that he should at least be allowed to
proceed to trial on Defendant's actions since January 1,
2009.
C. Discussion
Because Plaintiff has failed to create a genuine issue
of material fact that he is a qualified individual with
[*10] a disability, his per se discrimination claim against
Defendant fails as a matter of law. [HN1] Defendant's
failure to provide Plaintiff with accommodations before
January 1, 2009, is not controlled by the ADAAA as the
amendments are not retroactive. Fredricksen v. United
Parcel Service, Co., 581 F.3d 516, 521 n.1 (7th Cir.
2009) ("Significant changes to the ADA took effect on
January 1, 2009, after this appeal was filed. . . . Congress
did not express its intent for these changes to apply retroactively, and so we look to the law in place prior to the
amendments.") (citing Lytes v. DC Water & Sewer Auth.,
App. Def. 163
Page 5
2010 U.S. Dist. LEXIS 49109, *
572 F.3d 936, 939-42, 387 U.S. App. D.C. 291 (D.C.
Cir.2009). The cases before the amendments required
that the plaintiff show disability before pursuing a per se
discrimination case. See Hohider v. United Parcel Serv.,
Inc., 574 F.3d 169, 195-96 ([HN2] per se discrimination
for a 100% healed policy requires that plaintiff be "disabled" or "otherwise qualified" under the ADA);
Contreras v. Suncast Corp., 237 F.3d 756, 766 (7th Cir.
2001) ("We agree with the district court's interpretation
that [plaintiff] does not have standing to challenge [defendant's] accommodation policy, in that he is not a
qualified person with [*11] a disability."); Stuckey v.
City of Naperville, 1998 U.S. Dist. LEXIS 4897, 1998
WL 173298, 4 (N.D. Ill. April 7, 1998) ([HN3] a showing
of disability is a prerequisite for pursing a claim against
defendant's discriminatory policies). Accordingly, Defendant's failure to accommodate Plaintiff before January
1, 2009, did not violate the ADA.
Plaintiff does not fare any better under the ADAAA.
Plaintiff fails to cite to any case showing that the
ADAAA has changed the law about the standing requirements for per se discriminations claims. Instead,
Plaintiff argues that under the ADAAA he satisfies the
standing requirement because, insofar as Defendant regarded him as disabled and subjected him to the 100%
healed policy, he meets the definition of disability under
the "being regarded as" prong of the Act. At first blush,
Plaintiff's argument seems to have merit:
(1) [HN4] Disability
The term "disability" means, with respect to an individual-(A) a physical or mental impairment
that substantially limits one or more major
life activities of such individual;
(B) a record of such an impairment;
or
(C) being regarded as having such an
impairment (as described in paragraph
(3)).
...
(3) Regarded as having such an impairment
[HN5] For purposes of [*12] paragraph (1)(C):
(A) An individual meets the requirement of "being regarded as having such
an impairment" if the individual establishes that he or she has been subjected to
an action prohibited under this chapter
because of an actual or perceived physical
or mental impairment whether or not the
impairment limits or is perceived to limit
a major life activity.
(B) Paragraph (1)(C) shall not apply
to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
42 U.S.C. § 12102(1) & (3).
On its face, the text of paragraph 1(C), in conjunction with paragraph 3(A), appears to support Plaintiff,
but his interpretation is rejected by the statute itself, in a
later section:
(h) Reasonable accommodations and
modifications
[HN6] A covered entity under subchapter I of this chapter, a public entity
under subchapter II of this chapter, and
any person who owns, leases (or leases
to), or operates a place of public accommodation under subchapter III of this
chapter, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to
an individual who meets the definition of
disability [*13] in section 12102(1) of
this title solely under subparagraph (C) of
such section.
42 U.S.C. 12201(h).
Therefore, even if Plaintiff were to meet the definition of disability under 42 U.S.C. § 12102(1)(C), he is
not entitled to accommodation from Defendant. [HN7]
By excluding the requirement to accommodate individuals who are only regarded as disabled, the ADAAA recognizes the obvious: if an individual is not actually disabled, then he or she does not need the accommodation
in the first place. Thus, while an employer may not discriminate against persons it perceives as disabled, the
law does not impose a duty upon that employer to accommodate what turns out to be a fictional impairment.
The same applies to Plaintiff. Plaintiff claims that
Defendant has engaged in per se discriminatory practices
and has failed to provide reasonable accommodations for
him, that is, to give him the job of over the road truck
driver under the conditions specified by his doctor. Since
Plaintiff has failed to show that he has an actual disability or a record of such disability, he may not insist upon
the accommodation, even if Defendant regarded him as
App. Def. 164
Page 6
2010 U.S. Dist. LEXIS 49109, *
disabled at some point. Therefore, Plaintiff's claim
against Defendant's [*14] alleged policy of per se discrimination fails as a matter of law under the ADAAA.
C. Conclusion
Having previously determined that Plaintiff is not a
qualified individual with a disability under the ADA, the
Court finds that Plaintiff lacks standing to bring a per se
discrimination claim against Defendant both under the
law as it existed before and after January 1, 2009. To be
protected by the ADA and to challenge Defendant's failure to accommodate him as a result of the alleged 100%
healed policy, Plaintiff must be a qualified individual
with disability under the Act. Accordingly, the Court
grants Defendant's Motion for Reconsideration (DE 82);
furthermore, the Court grants summary judgment in favor of Defendant on Plaintiff's remaining claim of per se
discrimination under the ADA. The Clerk is directed to
enter final judgment for Defendant on all of Plaintiff's
claims.
SO ORDERED on May 13, 2010.
/s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
App. Def. 165
Page 1
SYLVIA SALAZAR, Plaintiff, VS. RECREATIONAL SPORTS & IMPORTS
DALLAS, INC., Defendant.
NO. 4:04-CV-811-A
TEXAS, FORT WORTH DIVISION
August 22, 2005, Filed
COUNSEL: [*1] For Silvia Salazar, Plaintiff: Mark
McAdoo, Law Offices of Mark A McAdoo, Arlington,
TX.
For Recreational Sports & Imports Dallas Inc, Defendant: Berna L Rhodes-Ford, Michael Scott McDonald,
Vicki L Gillette, Littler Mendelson -- Dallas, Dallas, TX.
JUDGES: JOHN McBRYDE, United States District
Judge.
OPINION BY: JOHN McBRYDE
OPINION
MEMORANDUM OPINION and ORDER
nity to receive pay raises in the eight to nine months
prior to her termination because of her sex. Plaintiff
seeks to [*2] recover under Title VII, 42 U.S.C. §§
2000e to 2000e-17.
II.
Grounds of the Motion
Defendant essentially urges three grounds in support
of its motion. First, plaintiff cannot establish a prima
facie case of discrimination based on pay issues or her
termination. Second, even if plaintiff has established a
prima facie case, she cannot overcome defendant's legitimate reason for terminating her or for failing to provide a performance review prior to her termination. And,
third, plaintiff's Equal Pay Act claim fails as a matter of
law. 1
Came on for consideration the motion of defendant,
Recreational Sports & Imports Dallas, Inc., for summary
judgment. The court, having considered the motion, the
response of plaintiff, Sylvia Salazar, the record, the
summary judgment evidence, and applicable authorities,
finds that the motion should be granted.
1 Plaintiff's petition does not mention the Equal
Pay Act. Nor does she address the issue of lack of
pay raises in her response to defendant's motion
for summary judgment. Rather, plaintiff addresses only the alleged discrimination in her
termination from employment. Thus, she has
abandoned any claim on the alleged lack of equal
treatment in regard to pay.
I.
Plaintiff's Claims
On October 7, 2004, plaintiff filed her original petition in the 141st Judicial District Court of Tarrant
County, Texas. On November 3, 2004, defendant filed its
notice of removal, bringing the action before this court.
Plaintiff alleges that she was terminated from employment by defendant because she was pregnant. Plaintiff additionally alleges that she was denied the opportu-
III.
Applicable Summary Judgment Principles
A party is entitled to summary [*3] judgment on all
or any part of a claim as to which there is no genuine
issue of material fact and as to which the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P.
App. Def. 166
Page 2
2005 U.S. Dist. LEXIS 17707, *
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the initial burden of showing that there is
no genuine issue of material fact. Anderson, 477 U.S. at
256. The movant may discharge this burden by pointing
out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a
complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all
other facts immaterial." Celotex Corp. v. Catrett, 477
U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548
(1986). Once the moving party has carried its burden
under Rule 56(c), the non-moving party must do more
than merely show that there is some metaphysical doubt
as to the material facts. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d
538, 106 S. Ct. 1348 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set [*4] forth specific facts showing a
genuine issue for trial. Anderson. 477 U.S. at 248, 256.
To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the precise
manner' in which that evidence support[s] [its] claim[s]."
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An
issue is material only if its resolution could affect the
outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment.
Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is
the same as the standard for rendering judgment as a
matter of law. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine
issue for trial. Matsushita, 475 U.S. at 597. See also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.
1969) (en banc) (explaining the standard to be applied in
determining whether the court should enter judgment
[*5] on motions for directed verdict or for judgment
notwithstanding the verdict).
IV.
Undisputed Evidence
The following is an overview of evidence pertinent
to the motion for summary judgment that is undisputed
in the summary judgment record:
Defendant is an electronics distributor. Plaintiff first
started working for defendant as a temporary warehouse
employee in February 2001. She was hired for a permanent warehouse position in July 2001. At the time, defendant had fulfillment operations on one side of the
warehouse and general warehouse operations on the
other. Plaintiff was hired to work in the fulfillment sec-
tion. Plaintiff's employment was at-will. Plaintiff's duties
on the fulfillment side involved pulling inventory for
smaller orders and boxing the inventory for customer
pickup. Plaintiff typically pulled antennas weighing
about ten pounds each and receivers weighing about six
pounds each. In late 2003, defendant discontinued a major contract and closed the fulfillment side of its warehouse operation. Plaintiff was moved to the general
warehouse section, where duties were more laborintensive. The general warehouse employees were required to pull inventory, load and unload [*6] freight
trucks, receive inbound shipments, restock the warehouse, prepare packages for freight carrier pickup, and
participate in cross-training projects to broaden capabilities and exposure. The duties included the lifting, pushing, and pulling of items weighing 25 pounds or more, as
well as climbing.
On June 16, 2004, plaintiff's doctor placed her on
medical restrictions related to her pregnancy, including
no lifting, pushing, or pulling items weighing 25 pounds
or more, and no climbing of ladders. Each of those activities was a requirement of her job in the general warehouse.
On July 12, 2004, defendant informed plaintiff that
it was considering letting her go due to her inability to
perform her job functions. Defendant told plaintiff that
she could stay another week or two to give her a chance
to find another job. On July 13, 2004, plaintiff called to
say that she would not be returning to work. Nevertheless, defendant paid plaintiff for an additional two weeks.
V.
Discussion
To make out a prima facie case under Title VII,
plaintiff must show that she is a member of a protected
class, that she was qualified for her position, that she
suffered an adverse employment [*7] action, and that
persons outside the protected class were treated more
favorably. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53,
67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Urbano v.
Cont'l Airlines, Inc., 138 F.3d 204, 207 (5th Cir. 1998).
To meet the last element, plaintiff must show that she
was treated differently from other employees in "nearly
identical" circumstances. Okoye v. Univ. of Tex. Houston
Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001); Williams v. Trader Publ'g Co., 218 F.3d 481, 484 (5th Cir.
2000).
Defendant first contends that plaintiff cannot produce evidence to support the second element of her
prima facie case, because she was not qualified for her
App. Def. 167
Page 3
2005 U.S. Dist. LEXIS 17707, *
position after being placed on restrictions by her doctor.
In response, plaintiff points only to the testimony of a coworker, Greg Jenkins, who testified, "she did it alright"
in response to the question "did she seem to have any
problems doing her job?" Pl.'s App. at 24.1. Jenkins testified that he never saw anyone criticize plaintiff for not
working hard enough. He further testified [*8] that
warehouse employees worked together to get their work
accomplished. Id. at 25.1. Jenkins' testimony, however, is
not sufficient to raise a genuine issue of material fact as
to whether plaintiff could perform the duties assigned to
her. Jenkins admitted that plaintiff had problems picking
up heavy boxes. Id. And, plaintiff herself testified that
she could not pull heavy pallets, Id. at 16-17, and could
not lift cable that weighed 40 pounds. Id. at 13. In fact,
plaintiff specifically admitted that she could not perform
all of her duties. Def.'s App. at 18. Thus, plaintiff cannot
make out a prima facie case of discrimination.
Defendant additionally urges that plaintiff cannot
make out a prima facie case, because she cannot show
that persons outside the protected class were not similarly treated. Plaintiff does not address the issue. Plaintiff
has not come forward with any summary judgment evidence regarding the treatment of similarly situated employees, if there were any. For this additional reason, her
prima facie case fails.
Defendant alternatively argues that, even if plaintiff
could establish a prima facie case, she cannot overcome
defendant's [*9]
showing of a legitimate, nondiscriminatory reason for its actions. 2 See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142-43, 147
L. Ed. 2d 105, 120 S. Ct. 2097 (2000). In response, plaintiff points to her deposition testimony that she never told
anyone she could not perform the duties of her job, Pl.'s
App. at 13, and Jenkins' testimony that he never saw
anyone criticize plaintiff. Id. at 24. She also refers to a
supervisor's email message noting that plaintiff could not
perform the duties of her job and that the company had
no obligation to keep her employed if she could not perform those duties. Id. at 31. The evidence is simply insufficient to raise a genuine fact issue that defendant's
proffered reason for terminating plaintiff was false and
that discrimination was the real reason for the decision to
terminate her. St. Mary's Honor Ctr., 509 U.S. at 511.
That the email message mentioned that plaintiff was
pregnant and often sick does not change the fact that
plaintiff could not perform the duties of her job.
2 Defendant maintains that it released plaintiff,
because she could not perform the duties required
by her position in the general warehouse.
[*10] Defendant finally argues that plaintiff cannot
establish a claim under the Equal Pay Act, which would
require that plaintiff show that she was subject to the
Act, that she performed work in a position requiring
equal skill, effort, and responsibility under similar working conditions, and that she was paid less than an employee of the opposite sex providing the basis of the
comparison. Chance v. Rice Univ., 984 F.2d 151, 153
(5th Cir. 1993). Plaintiff makes no response to this
ground. Nor does she attempt to show that she was discriminated against in regard to her pay as a result of her
sex. Defendant's summary judgment evidence establishes
that plaintiff was not treated any less favorably than any
other employee in terms of pay.
VI.
Order
For the reasons discussed herein,
The court ORDERS that defendant's motion for
summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against defendant; and
that such claims be, and are hereby, dismissed.
SIGNED August 22, 2005.
JOHN McBRYDE
FINAL JUDGMENT
In accordance with the court's Memorandum Opinion and Order of even date herewith,
The court [*11] ORDERS, ADJUDGES, and DECREES that plaintiff, Sylvia Salazar, take nothing on her
claims against defendant, Recreational Sports & Imports
Dallas, Inc., and that such claims be, and are hereby,
dismissed with prejudice.
The court FURTHER ORDERS, ADJUDGES, and
DECREES that defendant have and recover its court
costs from plaintiff.
SIGNED August 22, 2005.
JOHN McBRYDE
App. Def. 168
Page 1
1 of 2 DOCUMENTS
VICTORIA SEREDNYJ, Plaintiff-Appellant, v. BEVERLY HEALTHCARE, LLC,
Defendant-Appellee.
No. 10-2201
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
April 5, 2011, Argued
PRIOR HISTORY: [*1]
Northern District of Indiana, Hammond Division. No.
08-cv-00004--Robert L. Miller, Jr., Judge.
Serednyj v. Beverly Healthcare LLC, 2010 U.S. Dist.
LEXIS 38221 (N.D. Ind., Apr. 16, 2010)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff former employee
filed suit against defendant former employer, alleging
gender discrimination under Title VII of the Civil Rights
Act of 1964, pregnancy discrimination under the Pregnancy Discrimination Act (PDA), disability discrimination under the Americans with Disabilities Act (ADA),
and retaliation. The U.S. District Court for the Northern
District of Indiana granted the employer's motion for
summary judgment. The employee appealed.
OVERVIEW: Contrary to the employee's assertion, the
employer's modified work policy was not direct evidence
of discrimination. The policy complied with the PDA, 42
U.S.C.S. § 2000e(k), because it treated nonpregnant employees the same as pregnant employees--both were denied an accommodation of light duty work for non-workrelated injuries. The employer's modified work policy
was pregnancy-blind, and therefore valid. The employee
did not come forward with a similarly situated, nonpregnant employee who was treated more favorably than she.
The employee's evidence in this regard lacked reliability,
and in certain circumstances, was belied by the record.
Having failed to set forth a prima facie case, the appellate court did not need to reach the issue of pretext. The
employee's pregnancy-related complications did not substantially limit her in the major life activities of reproduction or lifting. Her pregnancy-related impairments
were of limited duration, and there was no evidence that
she suffered any long-term limitations as a result. Because the employee failed to establish that she suffered
from a disability, her ADA claim under 42 U.S.C.S. §
12102(2)(A) failed as a matter of law.
OUTCOME: The district court's grant of summary
judgment against the employee was affirmed.
General Overview
[HN1] Summary judgment is appropriate if the record
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). An appellate court reviews de
novo a district court's grant of summary judgment, viewing the facts and all reasonable inferences in the light
most favorable to the nonmoving party. When a summary judgment motion is submitted and supported by
evidence as provided in Rule 56(c), the nonmoving party
may not rest on mere allegations or denials in its pleadings, but must set forth specific facts showing that there
App. Def. 169
Page 2
656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
is a genuine issue for trial. A genuine issue of material
fact exists if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.
[HN2] Title VII of the Civil Rights Act of 1964 prohibits
employment discrimination on the basis of sex. 42
U.S.C.S. § 2000e-2(a). In 1978, Congress amended Title
VII by enacting the Pregnancy Discrimination Act
(PDA), 42 U.S.C.S. § 2000e(k), to explicitly extend protection to pregnant women: The terms because of sex or
on the basis of sex include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related purposes as
other persons not so affected but similar in their ability
or inability to work. 42 U.S.C.S. § 2000e(k). The PDA
created no new rights or remedies, but clarified the scope
of Title VII by recognizing certain inherently genderspecific characteristics that may not form the basis for
disparate treatment of employees. The PDA made clear
that, for all Title VII purposes, discrimination based on a
woman's pregnancy is, on its face, discrimination because of her sex.
[HN3] A plaintiff can show that she was a victim of intentional discrimination either by proceeding under the
direct method or the indirect, burden-shifting method.
Labor & Employment Law > Discrimination > Disparate Treatment > Employment Practices > Adverse Employment Actions > General Overview
[HN4] Under the direct method, a plaintiff may show,
either through direct or circumstantial evidence, that an
employer's decision to take the adverse job action against
her was motivated by an impermissible purpose, such as
sex. Direct evidence is evidence that, if believed by the
trier of fact, would prove discriminatory conduct on the
part of the employer without reliance on inference or
presumption. This type of evidence requires an admission by the decision-maker that her actions were based
upon the prohibited animus. A plaintiff may also establish her direct case by presenting a convincing mosaic of
circumstantial evidence from which a reasonable juror
could infer intentional discrimination by the decisionmaker. The plaintiff's circumstantial evidence must point
directly to a discriminatory reason for the employer's
action.
[HN5] The Pregnancy Discrimination Act, 42 U.S.C.S. §
2000e(k), states that pregnant employees shall be treated
the same for all employment-related purposes as other
persons not so affected but similar in their ability or inability to work. 42 U.S.C.S. § 2000e(k).
[HN6] The Pregnancy Discrimination Act, 42 U.S.C.S. §
2000e(k), requires that an employer ignore a female employee's pregnancy and treat that employee the same as it
would have if she were not pregnant. The Pregnancy
Discrimination Act does not protect a pregnant employee
from being discharged after her absence from work even
if her absence is due to pregnancy or to complications of
pregnancy, unless the absences of nonpregnant employees are overlooked.
[HN7] A plaintiff's mosaic may be comprised of three
categories of circumstantial evidence, each of which is
sufficient by itself to support a judgment for the plaintiff.
The first category consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group,
and other bits and pieces from which an inference of
discriminatory intent may be drawn. The second category consists of evidence that similarly situated employees outside of the protected group (pregnancy, sex, race,
etc.) received systematically better treatment. The third
category consists of evidence that the plaintiff was qualified for the job in question but passed over in favor of (or
App. Def. 170
Page 3
656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext
for discrimination.
[HN8] For purposes of the Pregnancy Discrimination
Act, 42 U.S.C.S. § 2000e(k), and Title VII of the Civil
Rights Act of 1964, a request for an accommodation is
materially different than a request for assistance.
[HN9] In the context of a discrimination claim, in determining the essential functions of a position, a court may
consider, but is not limited to, evidence of the employer's
judgment as to which functions are essential, and the
written job description in effect before the employee
interviewed for the position.
Burden Shifting
Employee Burdens
[HN10] A plaintiff may use the indirect, burden-shifting
approach to frame her case. The indirect method requires
a plaintiff to first establish a prima facie case of discrimination. For purposes of a pregnancy discrimination
claim, a plaintiff must show that: (1) she was pregnant
and her employer knew she was pregnant; (2) she was
performing her job duties satisfactorily; (3) she was terminated; and (4) similarly situated, nonpregnant employees were treated more favorably. Once a plaintiff sets
forth a prima facie case of discrimination, the burden
shifts to the defendant to articulate a legitimate, nondiscriminatory reason for terminating her. If such a reason
is advanced, the plaintiff can survive summary judgment
only by showing that the defendant's reason was a pretext
for intentional discrimination.
Labor & Employment Law > Discrimination > Disparate Treatment > Employment Practices > Adverse Employment Actions > General Overview
[HN11] Employees are similarly situated if they are directly comparable to her in all material respects. This
normally entails a showing that the two employees dealt
with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of
them. The similarly situated inquiry is a flexible one that
considers all relevant factors, the number of which depends on the context of the case. A plaintiff need not
show complete identity with a proposed comparator, but
she must show substantial similarity.
General Overview
[HN12] Title I of the Americans with Disabilities Act
prohibits employers from discriminating against a qualified individual with a disability because of the disability
of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment. 42
U.S.C.S. § 12112(a). Title I also provides that an employer discriminates against a qualified individual with a
disability by not making reasonable accommodations to
the known physical or mental limitations of an otherwise
qualified individual with a disability. 42 U.S.C.S. §
12112(b)(5)(A).
[HN13] The term disability is defined under the Americans with Disabilities Act to mean, with respect to an
individual: (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. 42
U.S.C.S. § 12102(2).
App. Def. 171
Page 4
656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
[HN14] The Equal Employment Opportunity Commission (EEOC) regulations define physical or mental impairment as any physiological disorder or condition that
affects one or more body systems, including the reproductive system. 29 C.F.R. § 1630.2(h)(1). The EEOC's
Interpretive Guidance specifically excludes pregnancy as
a physical impairment. 29 C.F.R. pt. 1630, app. §
1630.2(h) states conditions, such as pregnancy, that are
not the result of a physiological disorder are also not
impairments. Courts that consider these regulations consistently find that pregnancy, absent unusual circumstances, is not a physical impairment.
[HN15] The term substantially limited refers to the inability to perform a major life activity as compared to the
average person in the general population, or a significant
restriction as to the condition, manner, or duration under
which an individual can perform a particular activity. 29
C.F.R. § 1630.2(j). In determining whether a disability
substantially limits a person from performing a major life
activity, courts consider the nature and severity of the
impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or the
expected permanent or long term impact of or resulting
from the impairment. Thus, courts generally find that
short-term, temporary restrictions, with little or no longterm impact, are not substantially limiting and do not
render a person disabled for purposes of the Americans
with Disabilities Act. 29 C.F.R. pt. 1630, app. §
1630.2(j). Temporary, non-chronic impairments of short
duration, with little or no long term or permanent impact,
are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained
joints, concussions, appendicitis, and influenza. Disability does not include temporary medical conditions.
[HN16] The inability to do heavy lifting is not a substantial limitation as compared to the average person.
[HN17] To succeed under a record of disability claim, a
plaintiff must show that she had a physical impairment
that substantially limits one or more major life activities.
29 C.F.R. § 1630.2(k).
[HN18] To fall within the statutory definition of a regarded as claim, a plaintiff must show that: (1) the employer mistakenly believes the employee has an impairment that substantially limits a major life activity, or (2)
the employer mistakenly believes the employee's actual,
but nonlimiting, impairment substantially limits a major
life activity. In other words, the employer must believe
either that one has a substantially limiting impairment
that one does not have or that one has a substantially
limiting impairment when, in fact, the impairment is not
so limiting. The purpose of the regarded as prong is to
prohibit employers from making ill-informed decisions
based on myth or stereotype.
Labor & Employment Law > Discrimination > Retaliation > Burdens of Proof
Labor & Employment Law > Discrimination > Retaliation > Elements > General Overview
Labor & Employment Law > Discrimination > Retaliation > Statutory Application > Title VII of the Civil
Rights Act of 1964 > General Overview
[HN19] A Title VII of the Civil Rights Act of 1964
plaintiff may prove her retaliation claim under the direct
and indirect methods of proof. The direct method requires her to show that: (1) she engaged in protected activity; (2) she suffered an adverse employment action;
and (3) there is a causal connection between the protected activity and the adverse action. The indirect
method requires her to show that: (1) she engaged in
statutorily protected activity; (2) she was performing her
job to her employer's legitimate expectations; (3) she
suffered an adverse employment action; and (4) she was
treated less favorably than similarly situated employees
who did not engage in statutorily protected activity. Once
a prima facie case is set forth, the burden-shifting pretext
analysis takes place.
COUNSEL: For VICTORIA L. SEREDNYJ, Plaintiff Appellant: Anna M. Hearn, Attorney, Valparaiso, IN.
For BEVERLY HEALTHCARE LLC, doing business as
GOLDEN LIVING CENTER-VALPARAISO, Defendant - Appellee: Michael S. Glassman, Charles M.
Roesch, Attorneys, DINSMORE & SHOHL LLP, Cincinnati, OH.
App. Def. 172
Page 5
656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
JUDGES: Before EASTERBROOK, Chief Judge,
BAUER, Circuit Judge, and YOUNG, District Judge.*
*
The Honorable Richard L. Young, Chief
Judge of the United States District Court for the
Southern District of Indiana, sitting by designation.
OPINION BY: YOUNG
OPINION
YOUNG, District Judge. Beverly Healthcare, LLC
("Beverly"), employed Victoria Serednyj as an Activity
Director in Beverly's Golden Living nursing home in
Valparaiso, Indiana, from August 2006 to March 2007.
In early January 2007, Serednyj learned she was pregnant, and, at the end of February 2007, she began to experience pregnancy-related complications. Her doctor
placed her on bed rest for two weeks, and, at the end of
this two-week period, her doctor placed her on light duty
restrictions. Serednyj asked to be accommodated, and
Beverly denied [*2] her request under its modified work
policy. Because Serednyj also did not qualify for leave
under the Family Medical Leave Act ("FMLA"), Beverly
terminated her employment. Serednyj then filed suit
against Beverly, alleging gender discrimination under
Title VII of the Civil Rights Act of 1964 ("Title VII"),
pregnancy discrimination under Title VII, as amended by
the Pregnancy Discrimination Act ("PDA"), disability
discrimination under the Americans with Disabilities Act
("ADA"), and retaliation. Beverly moved for summary
judgment, which the district court granted. Serednyj now
appeals. For the reasons set forth below, we affirm.
I. Background
A. The Activity Director Position
On August 11, 2006, Serednyj was hired as an Activity Director by Dawn Mount, the Executive Director
of Beverly's Golden Living nursing home in Valparaiso,
Indiana. Prior to that time, Serednyj worked at Beverly
two distinct times as a certified nursing assistant
("CNA"), and both times, she voluntarily quit the position.
The duties of an Activity Director are to plan, implement, and participate in morning and/or afternoon
activities for the residents at the nursing home facility.
During Serednyj's term as Activity [*3] Director, she
attended morning meetings, conducted exercise classes,
developed a monthly calendar, shopped for activities, set
up and prepared for activities, assisted residents to and
from activities, and planned activities, including bingo,
arts and crafts, cooking, and excursions outside the facil-
ity. In addition, Serednyj supervised the Assistant Activity Director, who assisted Serednyj with all of her job
functions, conducted evening activities, and worked on
Serednyj's off days.
The execution of Serednyj's duties entailed some
physically strenuous functions. These included: (1)
transporting residents to activities in either wheelchairs
or much heavier "geri chairs"; (2) rearranging dining
room tables for specific activities, and later setting them
back into place; (3) shopping for supplies for use in the
activities, including bingo prizes, snacks, and drinks,
which required her to lift and transport heavy shopping
bags; and (4) setting up and maintaining the rather large
monthly activity calendar, which required her to stand on
a stool and staple the calendar to corkboard mounted on
a wall. Other Beverly employees voluntarily assisted her
with these functions, including Eric Christe, [*4] a
physical therapy assistant, other members of the physical
therapy department, and other CNAs.
The job description for the position of Activity Director includes an "Essential Functions" heading, a
"Qualifications" heading, and an "Other Job Functions"
heading. Underneath the "Other Job Functions" heading
is a section entitled "Physical and Sensory Requirements." These requirements include: "[w]alking, reaching, climbing, bending, lifting, grasping, fine hand coordination, pushing and pulling, ability to read and write,
ability to communicate with residents and personnel, and
ability to remain calm in emergency situations and when
handling multiple tasks."
B. Serednyj's Pregnancy Complications
On December 14, 2006, Serednyj learned she was
pregnant, but she suffered a miscarriage days later. On
January 7, 2007, she learned she was pregnant again.1
Shortly after learning of the second pregnancy, she informed Mount, her supervisor, and others at Beverly that
she was pregnant. Mount congratulated Serednyj, and
Serednyj continued to perform all of her required duties
and to work her regular schedule throughout January and
February 2007.
1 There is no explanation in the record below as
to why [*5] the two pregnancies were so close in
time.
At the end of February 2007, Serednyj began to have
complications with her pregnancy, including spotting and
cramping. She went to the hospital and was seen by Dr.
Wallace Sherritt, who was covering for her regular physician, Dr. Kurt Wiese. After conducting several tests,
Dr. Sherritt concluded that Serednyj's progesterone levels
were low, that she had bleeding behind the placenta, and
shearing of the uterus. He informed her that if these
App. Def. 173
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656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
complications were not addressed immediately, she
would suffer another miscarriage. Dr. Sherritt prescribed
progesterone suppositories twice a day and told Serednyj
not to perform strenuous activities.
Serednyj explained her situation to Mount. A few
days later, Mount asked for further explanation regarding
what work duties she could and could not perform. Dr.
Sherritt provided a doctor's note, dated February 27,
2007, which reads, in relevant part:
I have seen this patient and have instructed her that she is to limit her activities to no heavy lifting or strenuous activities. She has explained her responsibilities
that pertain to her work and she has been
advised that she is not to participate in her
usual [*6] work load. If she cannot perform duties that are of a limited nature
then she needs to stay off of work until
she can be re-evaluated by Dr. Wiese
upon his return next week. Failure to do
so could jeopardize her pregnancy.
These restrictions meant that Serednyj could not set
up and move tables for activities in the nursing home,
push patients in their wheelchairs to those activities, nor
decorate and maintain the activity calendar. Serednyj
requested to be excused from these activities.
Mount explained Beverly's modified work policy to
Serednyj, and informed her that she could not return to
work until Dr. Wiese released her back to full duty. The
modified work policy, known as HR-305, states: "The
Company only provides one type of restricted or limited
duty to employees with non-work related injuries or conditions," which is accommodated duty "as one form of
reasonable accommodation under the Americans with
Disabilities Act (ADA) or comparable state law, where
medically necessary for qualified individuals with disabilities to perform essential functions." The policy states
in bold, "No other restricted or limited duty is permitted
for non-work related injuries or conditions." Mount also
[*7] informed Serednyj that she had not been employed
long enough to qualify for FMLA leave.
On March 1, 2007, Dr. Sherritt faxed another note to
Mount, which stated: "After reviewing your form and
considering this patient's situation I have decided that in
her best interest I cannot give my permission for her to
continue working in any capacity." Dr. Sherritt indicated
that Serednyj's physician, Dr. Wiese, would return to
work soon, and that he deferred to his judgment regarding her work restrictions.
Serednyj saw Dr. Wiese on March 6, 2007, and he
signed a small form entitled "Disability Certificate." Dr.
Wiese reported that Serednyj was totally incapacitated
(on bed rest) from March 2, 2007, to March 14, 2007,
and was still unable to return to work. Serednyj showed
the form to Mount, and informed her she was to see Dr.
Wiese again on March 13, 2007. Mount told her that if
she could not return to work on March 14, 2007, without
restrictions, she would have to "let her go."
On March 13, 2007, Serednyj saw Dr. Wiese, who
wrote a note saying "light duty or unable to work until
further notice." Serednyj gave the note to Mount, who
again informed Serednyj that she did not fall within Beverly's [*8] modified work policy because her injury was
not "work related," and that she had not worked there
long enough to qualify for FMLA leave. Mount terminated her employment.
Serednyj hired an attorney, who drafted a letter to
Beverly, dated March 21, 2007, requesting an accommodation pursuant to the ADA and the PDA. Mount informed Serednyj she would look into it again, and contacted the Division Manager of Human Resources, Connie Rebey. After this discussion, Mount called Serednyj
on March 26, 2007, to inform her a second time that she
was not eligible for light duty work under Beverly's
modified work policy.
On April 10, 2007, Beverly filled out an Earning Information Request form for Serednyj for Indiana state
welfare. Beverly indicated on the form that Serednyj was
"fired" from her job.
In June 2007, Serednyj's physician lifted her restrictions and informed her that she could begin exercising
again. Serednyj had a healthy baby boy on September 24,
2007, and began working part-time at Wal-Mart on December 5, 2007, without any restrictions. Serednyj became pregnant again with her second child in January or
February 2009, and suffered no complications throughout that pregnancy.
II. Analysis
[HN1] Summary [*9] judgment is appropriate if the
record "shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." FED. R. CIV. P. 56(a). The Court reviews
de novo a district court's grant of summary judgment,
viewing the facts and all reasonable inferences in the
light most favorable to the nonmoving party. Hall v.
Nalco Co., 534 F.3d 644, 646 (7th Cir. 2008). When a
summary judgment motion is submitted and supported
by evidence as provided in Rule 56(c), the nonmoving
party may not rest on mere allegations or denials in its
pleadings, but "must set forth specific facts showing that
there is a genuine issue for trial." Anderson v. Liberty
App. Def. 174
Page 7
656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L.
Ed. 2d 202 (1986) (internal quotation marks and citation
omitted). A genuine issue of material fact exists "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. at 248.
A. Title VII and the PDA
[HN2] Title VII prohibits employment discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a). In 1978,
Congress amended Title VII by enacting the PDA to
explicitly extend protection to pregnant women:
The terms "because of sex" or "on the
basis of sex" [*10] include, but are not
limited to, because of or on the basis of
pregnancy, childbirth, or related medical
conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all
employment-related purposes . . . as other
persons not so affected but similar in their
ability or inability to work . . . ."
42 U.S.C. § 2000e(k). "The PDA created no new rights
or remedies, but clarified the scope of Title VII by recognizing certain inherently gender-specific characteristics that may not form the basis for disparate treatment of
employees." Hall, 534 F.3d at 647 (citing Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669,
678-79, 103 S. Ct. 2622, 77 L. Ed. 2d 89 (1983)). "The
PDA 'made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face,
discrimination because of her sex.'" Id. (quoting Newport
News, 462 U.S. at 684); see also Griffin v. Sisters of
Saint Francis, Inc., 489 F.3d 838, 843 (7th Cir. 2007)
(stating that "pregnancy is a proxy for gender, and, therefore, discrimination against pregnancy is discrimination
against women"). Thus, Serednyj's claim for pregnancy
discrimination is a claim for gender discrimination,
[*11] and the legal analysis for both claims is the same.
Griffin, 489 F.3d at 842-43. Accordingly, we analyze
these claims together.
1. Direct Method
[HN3] A plaintiff can show that she was a victim of
intentional discrimination either by proceeding under the
direct method or the indirect, burden-shifting method.
Rhodes v. Illinois Dep't of Transp., 359 F.3d 498, 504
(7th Cir. 2004) (citing Cianci v. Pettibone Corp., 152
F.3d 723, 727-28 (7th Cir. 1998)). Serednyj proceeds
under both methods of proof.
[HN4] Under the direct method, the plaintiff may
show, either through direct or circumstantial evidence,
that the employer's decision to take the adverse job action against her was motivated by an impermissible purpose, such as sex. Id. (citing Cianci, 152 F.3d at 727).
"Direct evidence is evidence that, if believed by the trier
of fact, would prove discriminatory conduct on the part
of the employer without reliance on inference or presumption." Id. (citing Rogers v. City of Chicago, 320
F.3d 748, 753 (7th Cir. 2003)). This type of evidence
"requires an admission by the decision-maker that [her]
actions were based upon the prohibited animus." Id.
(quoting Rogers, 320 F.3d at 753) (internal quotations
omitted). [*12] A plaintiff may also establish her direct
case by presenting a convincing mosaic of circumstantial
evidence from which a reasonable juror could infer intentional discrimination by the decisionmaker. Id. (quoting Troupe v. May Dep't Stores Co., 20 F.3d 734, 737
(7th Cir. 1994)). Serednyj's circumstantial evidence
"'must point directly to a discriminatory reason for the
employer's action.'" Id. (quoting Adams v. Wal-Mart
Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)).
a. Direct Evidence
Beverly's modified work policy provides accommodations to qualified individuals with a disability under
the ADA or to those employees who sustain work-related
injuries. Serednyj argues that the policy's terms violate
[HN5] the PDA's provision that pregnant employees
"shall be treated the same for all employment-related
purposes . . . as other persons not so affected but similar
in their ability or inability to work . . . ." 42 U.S.C. §
2000e(k). According to Serednyj, an employee who is
disabled or suffers a work-related injury and receives an
accommodation of light duty work receives better treatment than a pregnant employee, like Serednyj, who
needs the same accommodation to maintain her employment.
[HN6] The PDA [*13] requires that an employer
ignore a female employee's pregnancy and treat that employee the same as it would have if she were not pregnant. Piraino v. Int'l Orientation Resources, Inc., 84 F.3d
270, 274 (7th Cir. 1996); Troupe, 20 F.3d at 738. In the
context of this case, this means that an employer is not
required to provide an accommodation to a pregnant employee unless it provides the same accommodation to its
similarly situated nonpregnant employees. See Dormeyer
v. Comerica Bank-Illinois, 223 F.3d 579, 583 (7th Cir.
2000) ("[T]he Pregnancy Discrimination Act does not
protect a pregnant employee from being discharged after
her absence from work even if her absence is due to
pregnancy or to complications of pregnancy, unless the
absences of nonpregnant employees are overlooked.");
Troupe, 20 F.3d at 738 ("The Pregnancy Discrimination
Act requires the employer to ignore an employee's pregnancy, but . . . not her absence from work, unless the
App. Def. 175
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656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
employer overlooks the comparable absences of nonpregnant employees.").
Contrary to Serednyj's assertion, Beverly's modified
work policy is not direct evidence of discrimination. The
policy complies with the PDA because it does, in fact,
treat [*14] nonpregnant employees the same as pregnant
employees--both are denied an accommodation of light
duty work for non-work-related injuries. This is all the
PDA requires. We, therefore, agree with the district court
and find that Beverly's modified work policy is "pregnancy-blind," and therefore valid. See Spivey v. Beverly
Healthcare Enterprises, Inc., 196 F.3d 1309, 1312-13
(11th Cir. 1999) (holding that the same policy against the
same defendant is valid under the PDA and citing Troupe
and Piraino); see also Reeves v. Swift Transp. Co., 446
F.3d 637, 641 (6th Cir. 2006) (holding a similar policy
valid because the policy "does not grant or deny light
work on the basis of pregnancy, childbirth, or related
medical condition" and citing Troupe); Urbano v. Cont'l
Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998) (holding
a similar policy valid because the light-duty policy
treated pregnant employees the same as nonpregnant
employees and citing Troupe and Piraino).
b. Indirect Evidence
Serednyj does not have direct evidence that Beverly
discriminated against her due to her pregnancy. Thus, to
survive summary judgment under the direct method,
Serednyj must present a convincing mosaic of circumstantial [*15] evidence from which a reasonable juror
could infer intentional discrimination by Beverly. [HN7]
Serednyj's mosaic may be comprised of three categories
of circumstantial evidence, each of which is sufficient by
itself to support a judgment for the plaintiff. Troupe, 20
F.3d at 736. The first category "consists of suspicious
timing, ambiguous statements oral or written, behavior
toward or comments directed at other employees in the
protected group, and other bits and pieces from which an
inference of discriminatory intent may be drawn." Id.
The second category consists of evidence that similarly
situated employees outside of the protected group (pregnancy, sex, race, etc.) received systematically better
treatment. Id. The third category consists of "evidence
that the plaintiff was qualified for the job in question but
passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's
stated reason for the difference in treatment is unworthy
of belief, a mere pretext for discrimination." Id.
As her first piece of circumstantial evidence, Serednyj contends that before she became pregnant, she received assistance from other Beverly employees, including [*16] Christe and other CNAs, in performing such
job duties as moving dining room tables and transporting
residents by wheelchair or geri chair to and from planned
activities. But after she became pregnant and asked for
the same assistance in the form of an accommodation,
Beverly denied her request and terminated her employment.
[HN8] For purposes of the PDA and Title VII, a request for an accommodation is materially different than a
request for assistance. The assistance Serednyj received
from her co-workers before she became pregnant was
completely voluntary and given in a spirit of teamwork.
If a coworker could not or would not assist her in her job
duties, that co-worker was free to decline her request,
and was otherwise under no obligation to provide assistance. If Beverly were to grant Serednyj's request for an
accommodation, however, Serednyj's job duties would
be formally modified to light duty work, and the assistance given by her co-workers would be obligatory. Beverly's decision to deny Serednyj's request for an accommodation is not circumstantial evidence of intentional
discrimination. Instead, as the district court observed, it
is direct evidence that Beverly applied its modified work
[*17] policy to her.
Serednyj also contends that Beverly discriminated
against her by not providing her an accommodation with
respect to certain job duties that were not listed as "Essential Functions" in her written job description. Serednyj argues, "[n]owhere in the internet job posting, or the
job description given to [Serednyj] that contained the
essential functions of her job, stated anything about lifting, transporting patients, doing the activity board, or
lifting shopping bags, the very accommodations which
[Serednyj] requested."
[HN9] In determining the essential functions of a
position, a court may consider, but is not limited to, evidence of the employer's judgment as to which functions
are essential, and the written job description in effect
before the employee interviewed for the position. Basith
v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001) (citing 29 C.F.R. § 1630.2(n)(3)).
According to Beverly, an Activity Director must be
able to perform certain physically strenuous activities in
order to carry out the duties of the position, such as
transporting patients by wheelchair. Moreover, the job
description for the Activity Director position contains a
physical and sensory requirement [*18] which expressly
provides that an Activity Director must be able to,
among other things, reach, climb, lift, push, and pull. The
fact that this requirement was listed under the "Other
Functions" heading rather than the "Essential Functions"
or "Qualifications" headings of the job description is not
evidence that the physical requirements of her job--i.e.,
pushing wheelchairs, lifting shopping bags, hanging the
monthly calendar, and moving tables--were not essential
to the overall fulfillment of the Activity Director posi-
App. Def. 176
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656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
tion. Indeed, Serednyj expressly admitted in her deposition that these physical demands were in fact duties of
her job. We, therefore, conclude that Beverly's understanding of the essential functions of the Activity Director position was correct, and is not circumstantial evidence of intentional discrimination.
Serednyj next argues that after she provided the
March 21, 2007, letter to Beverly requesting an accommodation pursuant to the PDA and the ADA, Beverly
began to think of ways to fire her. In support of this argument, Serednyj cites to the notes that Mount made of
her conversation with her, which include the words "office mess," "attendance," and "overall organization."
[*19] Serednyj's argument contradicts the record facts,
including her own testimony, that her employment had
already terminated on March 13, 2007, following a meeting with Mount. Thus, there is no supporting evidence
that Beverly began to "think" of reasons to terminate her
employment after March 21, 2007, as she was no longer
an employee of Beverly.
Finally, Serednyj attempts to show pregnancy discrimination by summarily stating, without any record
citation, that Beverly terminated her while she had paid
leave remaining. This argument is not supported by the
record evidence, which reflects that Beverly did pay
Serednyj all of her unused sick and vacation leave pursuant to its policies.
These four pieces of evidence, taken together, fail to
create a convincing mosaic of circumstantial evidence
from which a jury could infer intentional discrimination
on the part of Beverly. We now turn to Serednyj's indirect case.
2. Indirect Case
As noted above,[HN10] a plaintiff may also use the
indirect, burden-shifting approach to frame her case. The
indirect method requires a plaintiff to first establish a
prima facie case of discrimination. For purposes of
Serednyj's pregnancy discrimination claim, Serednyj
must [*20] show that: (1) she was pregnant and her employer knew she was pregnant; (2) she was performing
her job duties satisfactorily; (3) she was terminated; and
(4) similarly situated, nonpregnant employees were
treated more favorably. Griffin, 489 F.3d at 844 (citing
Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir.
2001)). Once a plaintiff sets forth a prima facie case of
discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for terminating her. Id. If such a reason is advanced, the plaintiff
can survive summary judgment only by showing that the
defendant's reason was a pretext for intentional discrimination. Id.
The first, second, and third elements of Serednyj's
prima facie case are not in dispute. Serednyj is a member
of a protected class, was performing her job satisfactorily, and was subject to an adverse employment action.
With respect to the fourth element of her prima facie
case, Serednyj claims that similarly situated, nonpregnant employees were treated more favorably than she,
and that disabled or pregnant employees were also
treated more favorably than she.
[HN11] Employees are similarly situated if they are
"directly comparable [*21] to her in all material respects." Patterson v. Avery Dennison Corp., 281 F.3d
676, 680 (7th Cir. 2002). "This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged
in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct
or the employer's treatment of them." Radue v. KimberlyClark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). The
similarly situated inquiry is "a flexible one that considers
'all relevant factors, the number of which depends on the
context of the case.'" Humphries v. CBOCS West, Inc..,
474 F.3d 387, 405 (7th Cir. 2007) (quoting Radue, 219
F.3d at 617). A plaintiff need not show complete identity
with a proposed comparator, but she must show "'substantial similarity.'" Id. (quoting Radue, 219 F.3d at
618).
Serednyj's would-be comparators include a woman
named "Bonnie," Susan Eckman, Carol Williams, Pam
Seibert, and Gina Sizemore. With respect to "Bonnie,"
Christe testified that "Bonnie" is a CNA "in her late fifties" who received assistance transporting and transferring patients. Christe did not know Bonnie's last name,
and does not know if [*22] she has a medical restriction.
Mount testified that since November 2004, the only individual employed by Beverly with the first name of
"Bonnie" was Bonnie Curtis, a CNA, who in fact never
requested nor received any accommodation from Beverly.
Susan Eckman was employed by Beverly as a CNA
and LPN between September 2006 and March 2007.
According to Serednyj, Eckman had breast augmentation
surgery during this time period, and was provided light
duty work. Serednyj testified that she had no personal
knowledge of this, but was told this information from her
friend and co-worker, Gina Sizemore. Moreover, Mount
testified that Eckman never sought nor received an accommodation for a breast augmentation.
Carol Williams was employed by Beverly who, according to Serednyj, worked as a CNA and suffered from
and was being treated for an L3, L4 disc degeneration in
her back. Serednyj claims that Williams' disc problem
was not work-related; however, Beverly allowed her to
App. Def. 177
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656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
work with significant lifting, bending, and twisting restrictions. Mount testified that Williams was an LPN,
and suffered two non-work-related injuries during her
employment. As a result of her non-work-related injuries, Williams was [*23] not eligible for light duty under
Beverly's modified work policy, but took two leaves of
absence instead. Williams also sustained two workrelated injuries in 2006 and 2007. The record does not
indicate whether Williams asked for and received an
accommodation for her work-related injuries, but if she
had, it would have been pursuant to Beverly's modified
work policy.
Pam Seibert was a speech therapist who worked at
Beverly's Golden Living facility with Serednyj. Although
Seibert and Serednyj worked at the same facility, Seibert
was an employee of Aegis Therapies, a separate company with separate employment policies. Because Seibert
had a long-term medical condition, Aegis allowed her to
use a rolling walker to move about the workplace and
allowed her to take breaks at her desk. Serednyj alleges
that Seibert was terminated within thirty days of requesting the accommodation. To the extent that Serednyj's
claim is true, Seibert is not similarly situated to Serednyj
because Seibert was not an employee of Mount, and was
not subject to Beverly's modified work policy.
Gina Sizemore worked as a CNA at the Golden Living facility, and was pregnant at approximately the same
time as Serednyj. Serednyj [*24] testified that she and
Sizemore were friends, and that Sizemore told her that
she (Sizemore) had to go on FMLA due to restrictions
from her pregnancy. Sizemore tried to return to work
following the expiration of her FMLA leave, but was
terminated by Mount because her doctor would not remove her restrictions. Sizemore does not help Serednyj's
case for two significant reasons. First, Serednyj's evidence is based on inadmissible hearsay. And second,
Sizemore is actually an example of Beverly applying its
modified work policy uniformly.
Serednyj has not come forward with a similarly situated, nonpregnant Beverly employee who was treated
more favorably than she. Serednyj's evidence in this regard lacks reliability, and in certain circumstances, is
belied by the record. Having failed to set forth a prima
facie case, we need not reach the issue of pretext, and the
inquiry ends. See Cowan v. Glenbrook Sec. Servs., Inc.,
123 F.3d 438, 445 (7th Cir. 1997) ("We need not reach
the issue of pretext, as plaintiff has failed to state a prima
facie case of discriminatory discharge under McDonnell
Douglas."). Accordingly, the district court correctly
granted Beverly's motion for summary judgment on
[*25] Serednyj's gender and pregnancy discrimination
claims.
B. ADA
[HN12] Title I of the ADA2 prohibits employers
from discriminating "against a qualified individual with a
disability because of the disability of such individual in
regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112(a). Title I
also provides that an employer discriminates against a
qualified individual with a disability by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a
disability." 42 U.S.C. § 12112(b)(5)(A). Serednyj claims
that Beverly should have granted her request for an accommodation under its modified work policy, and that
Beverly's failure to grant her request constitutes both a
failure to accommodate and disability discrimination, in
violation of Title I of the ADA. Accordingly, we will
begin our discussion with the threshold issue of whether
Serednyj's pregnancy-related complications rendered her
"disabled" within the meaning of the ADA. This is an
issue of first impression in the federal circuit [*26]
courts of appeal.
2 Significant changes to the ADA went into effect on January 1, 2009, after the events in this
case occurred. See ADA Amendments Act of
2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008).
Because Congress did not express an intent that
the changes take effect retroactively, we are
bound by the law in place prior to the amendments. Fredricksen v. United Parcel Serv. Co.,
581 F.3d 516, 521 n. 1 (7th Cir. 2009).
[HN13] The term "disability" is defined under the
ADA to mean, with respect to an individual: "(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." 42 U.S.C. §
12102(2). Serednyj proceeds under all three definitions.
1. Section 12102(2)(A)
a. Physical or Mental Impairment
[HN14] The Equal Employment Opportunity Commission ("EEOC") regulations define "physical or mental
impairment" as "any physiological disorder or condition"
that affects one or more body systems, including the reproductive system. 29 C.F.R. § 1630.2(h)(1). The
EEOC's Interpretive Guidance specifically excludes
pregnancy as a physical impairment. 29 C.F.R. Pt. 1630,
App. § 1630.2(h) [*27] ("conditions, such as pregnancy,
that are not the result of a physiological disorder are also
not impairments"). Courts that consider these regulations
consistently find that pregnancy, absent unusual circum-
App. Def. 178
Page 11
656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
stances, is not a physical impairment. See Gudenkauf v.
Stauffer Comm., Inc., 922 F. Supp. 465, 473 (D. Kan.
1996) ("Pregnancy is a physiological condition, but it is
not a disorder. Being the natural consequence of a properly functioning reproductive system, pregnancy cannot
be called an impairment."); see also Gabriel v. City of
Chicago, 9 F. Supp. 2d 974, 980 (N.D. Ill. 1998) (overruling its prior decision in Chapsky v. Baxter V. Mueller
Div., 1995 U.S. Dist. LEXIS 2609, 1995 WL 103299
(N.D. Ill. March 1, 1995), that pregnancy is a disability
per se); Darian v. Univ. of Massachusetts Boston, 980 F.
Supp. 77, 85 (D. Mass. 1997) (holding that although
"pregnancy per se is not covered by the ADA, the Act
does not necessarily exclude all pregnancy-related conditions and complications"); Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995)
(holding that absent unusual circumstances, pregnancy is
not a physical impairment under the ADA).
Defining what constitutes [*28] an "unusual circumstance" arising out of a pregnancy has been the subject of many district court decisions. The most persuasive
decisions draw a distinction between a normal, uncomplicated pregnancy, and an abnormal one--i.e., one with a
complication or condition arising out of, but distinguishable from, the pregnancy. See Gabriel, 9 F. Supp. 2d at
981; Darian, 980 F. Supp. at 87; Hernandez v. City of
Hartford, 959 F. Supp. 125, 130 (D. Conn. 1997); Cerrato v. Durham, 941 F. Supp. 388, 392 (S.D.N.Y. 1996).
In this regard, the analysis in Hernandez is worth a brief
discussion.
In Hernandez, the district court held that pregnancyrelated complications may constitute physical impairments if they are the product of a physiological disorder.
959 F. Supp. at 130. The district court defined "physiologic" as "characteristic of or conforming to the normal
functioning or state of the body or a tissue or organ," and
concluded that "a physiological disorder is an abnormal
functioning of the body or a tissue or organ." Id. (quoting
DORLAND'S MEDICAL DICTIONARY (27th ed. 1988)).
Citing the American Medical Association's Council on
Scientific Affairs, the district court gave examples of
pregnancy-related [*29] conditions that "'may be disabling for further work.'" Id. (quoting Cerrato, 941 F.
Supp. at 393). Among those complications were the
"'premature rupture of membranes, vaginal bleeding . . .
risk of premature [birth] . . . and a number of others.'" Id.
(quoting Cerrato, 941 F. Supp. at 393). Applying these
definitions to the plaintiff's case, the district court concluded that the plaintiff's premature labor that was controlled only through medication "was not a function of a
normal pregnancy. It was a physiological disorder." Id.
Serednyj's pregnancy-related complications included, inter alia, spotting, cramping, and an increased
risk of miscarriage. In addressing these medical issues,
her doctor prescribed progesterone suppositories and bed
rest for two weeks. We find this evidence may support
the inference that these complications were not the result
of a normal pregnancy, and were, in fact, physiological
disorders of the reproductive system. See Spees v. James
Marine, Inc., 617 F.3d 380, 397 (6th Cir. 2010) ("There
[*30] thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy."). However, even if the evidence supported that inference, we find, for the reasons set forth
below, that her physical impairment did not substantially
limit a major life activity.
b. Substantially Limits a Major Life Activity
To meet the definition of disability, Serednyj must
also show that her physical impairment substantially
limits a major life activity. Serednyj claims that her
physical impairment substantially limited her major life
activities of reproduction and lifting.
[HN15] The term "substantially limited" refers to the
inability to perform a major life activity as compared to
the average person in the general population, or a significant restriction "as to the condition, manner, or duration"
under which an individual can perform a particular activity. 29 C.F.R. § 1630.2(j). In determining whether a disability "substantially limits" a person from performing a
major life activity, courts consider "'the nature and severity of the impairment; the duration or expected duration
of the impairment; and the permanent [*31] or long term
impact, or the expected permanent or long term impact
of or resulting from the impairment.'" Kampmier v.
Emeritus Corp., 472 F.3d 930, 937 (7th Cir. 2007) (quoting 29 C.F.R. § 1630.2(j)(2)(i)-(iii)). Thus, courts generally find that short-term, temporary restrictions, with
little or no long-term impact, are not substantially limiting and do not render a person disabled for purposes of
the ADA. See 29 C.F.R. Pt. 1630, App. § 1630.2(j)
("[T]emporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are
usually not disabilities. Such impairments may include,
but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza."); Waggoner v.
Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999) ("Disability does not include temporary medical conditions.");
Hamm v. Runyon, 51 F.3d 721, 725 (7th Cir. 1995)
("Under the ADA, '[i]ntermittent, episodic impairments
are not disabilities.'" (quoting Vande Zande v. State of
Wis. Dep't of Admin., 44 F.3d 538, 544 (7th Cir. 1995))).
Pregnancy is, by its very nature, of limited duration,
and any complications which arise from a pregnancy
generally dissipate once a woman gives [*32] birth. Accordingly, an ADA plaintiff asserting a substantial limitation of a major life activity arising from a pregnancy-
App. Def. 179
Page 12
656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
related physiological disorder faces a tough hurdle. A
case from the Southern District of New York, is illustrative of this point. LaCoparra v. Pergament Home Ctrs.,
Inc., 982 F. Supp. 213 (S.D.N.Y. 1997), overruled on
other grounds by Kosakow v. New Rochelle Radiology
Assocs., P.C., 274 F.3d 706, 724 (2d Cir. 2001). In that
case, the plaintiff suffered from a history of infertility, a
prior miscarriage, and spotting and cramping during her
pregnancy, and was granted leave from her employer in
April 1994. Id. at 217, 228. The district court granted
defendant's motion for summary judgment on plaintiff's
ADA claim because there was no evidence that her conditions "were chronic or resulted in long-term or permanent impact." Id. at 228. The district court reasoned that
the spotting occurred only in the first trimester; she was
on bed rest for a short period of time; her activities were
limited only during her pregnancy; and she was physically able to return to work by January 1995. Id.
Serednyj's pregnancy-related complications did not
last throughout her pregnancy or extend beyond the time
she gave birth. Complications arising from her pregnancy began at the end of February 2007, when her doctor ordered her to refrain from heavy lifting or strenuous
activities. By her own admission, her doctor removed all
of her restrictions by June 2007, approximately four
months after her complications arose, and several months
before she gave birth. Although she was on bed rest, this
treatment lasted only from March 2, 2007, through
March 14, 2007, and she was physically able to return to
work in December 2007, approximately three months
after [*35] giving birth. In addition, there is no evidence
in the record reflecting that her ability to reproduce in the
future and carry a fetus to term was impacted by her
pregnancy-induced complications. In fact, Serednyj's
subsequent pregnancy presented no pregnancy-related
complications.
District court decisions from this circuit also guide
our analysis. For example, in [*33] Payne v. State Student Assistance Comm., the plaintiff suffered from pregnancy-induced hypertension. 2009 U.S. Dist. LEXIS
51849, 2009 WL 1468610, at *3 (S.D. Ind. May 22,
2009). The district court held that her condition did not
substantially limit her in the major life activity of reproduction, reasoning that her condition was temporary,
lasting only as long as the pregnancy, and she introduced
no evidence to show that she suffered any long-term
limitations as a result. 2009 U.S. Dist. LEXIS 51849,
[WL] at *8. See also Muska v. AT&T Corp., 1998 U.S.
Dist. LEXIS 13215, 1998 WL 544407, at *9 (N.D. Ill.
Aug. 25, 1998) (holding that plaintiff's pregnancyinduced complication of fetal distress did not substantially limit her in the major life activity of reproduction,
because the plaintiff's impairment lasted only two
months, and there was no evidence that her impairment
jeopardized her ability to carry a fetus to term in the future). But see Gabriel, 9 F. Supp. 2d at 983 (finding an
issue of fact as to whether plaintiff was substantially
limited in the major life activity of standing, where her
swollen feet, back pain, and stomach pain resulted in her
being unable to stand for long periods of time throughout
her pregnancy, she delivered two months prematurely,
and her condition [*34] persisted even after she gave
birth); Hernandez, 959 F. Supp. at 131 (finding an issue
of fact as to whether plaintiff was substantially limited in
the major life activity of working, where her doctor
noted the severity of her condition of premature labor
and asked that she be allowed to work from home, her
condition lasted throughout her pregnancy and was controlled only through the use of medication, and she was
unable to perform the essential functions of her job due
to the negative impact that work-related stress had on her
condition).
Moreover, the record indicates that her lifting restriction was of limited duration, and not an abnormal
condition of her pregnancy. Indeed, [HN16] the inability
to do heavy lifting is not a substantial limitation as compared to the average person. Zahurance v. Valley Packaging Indus., Inc., 397 Fed. Appx. 246, 248 (7th Cir.
2010) (holding that a 20-pound lifting restriction does
not substantially limit ability to lift); Mays v. Principi,
301 F.3d 866, 869 (7th Cir. 2002) (expressing doubt
whether 10-pound lifting restriction substantially limits
ability to lift); Ray v. Glidden Co., 85 F.3d 227, 229 (5th
Cir. 1996) (per curiam) (holding that the inability to perform "heavy lifting" does not substantially limit ability to
lift). Contrary to her position, the fact that her lifting
restriction disqualified her from her position at Beverly
is not evidence of a substantial limitation. Mack v. Great
Dane Trailers, 308 F.3d 776, 781 (7th Cir. 2002) [*36]
("An inability to lift heavy objects may disqualify a person from particular jobs but does not necessarily interfere with the central functions of daily life.").
On this record, we find that Serednyj's pregnancyrelated complications did not substantially limit her in
the major life activities of reproduction or lifting. Her
pregnancy-related impairments were of limited duration,
and there is no evidence that she has suffered any longterm limitations as a result. Because Serednyj fails to
establish that she suffered from a disability, her ADA
claim under Section 12102(2)(A) fails as a matter of law.
2. Section 12102(2)(B): Record of Disability
[HN17] To succeed under her "record of disability"
claim, Serednyj must again show that she had a "physical
impairment that substantially limits one or more major
life activities." 29 C.F.R. § 1630.2(k). As demonstrated
above, Serednyj does not have evidence to that effect,
App. Def. 180
Page 13
656 F.3d 540; 2011 U.S. App. LEXIS 17810, *;
and thus, her ADA claim under Section 12102(2)(B) also
fails as a matter of law.
3. Section 12102(2)(C): Regarded as Having an Impairment
[HN18] To fall within the statutory definition of a
"regarded as" claim, a plaintiff must show that: (1) the
employer mistakenly believes the employee has an [*37]
impairment that substantially limits a major life activity,
or (2) the employer mistakenly believes the employee's
actual, but nonlimiting, impairment substantially limits a
major life activity. Nese v. Julian Nordic Constr. Co..,
405 F.3d 638, 641 (7th Cir. 2005) (citing Amadio v.
Ford Motor Co., 238 F.3d 919, 925 (7th Cir. 2001)). "In
other words, the employer 'must believe either that one
has a substantially limiting impairment that one does not
have or that one has a substantially limiting impairment
when, in fact, the impairment is not so limiting.'" Id.
(quoting Sutton v. United Air Lines, Inc., 527 U.S. 471,
489, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999)). The
purpose of the "regarded as" prong is to prohibit employers from making ill-informed decisions based on myth or
stereotype. Moore v. J.B. Hunt Transport, Inc., 221 F.3d
944, 954 (7th Cir. 2000).
Serednyj argues that Beverly regarded her as disabled because it knew that she suffered a prior miscarriage, that she was having pregnancy-related complications, and that her doctor had placed her on lifting restrictions. There is no evidence in the record that Beverly
misperceived the nature of her condition, or denied her
request for light duty work based on a stereotype [*38]
of pregnant women suffering from complications. If anything, the record shows that Beverly did not grant her
request for light duty work under its modified work policy because it truly believed that she was not disabled
under the ADA; otherwise, it would have granted her an
accommodation rather than deny her request outright.
We therefore find that the district court correctly granted
summary judgment on Serednyj's ADA claims.
C. Retaliation
[HN19] A Title VII plaintiff may prove her retaliation claim under the direct and indirect methods of proof.
Tomanovich v. City of Indianapolis, 457 F.3d 656, 662
(7th Cir. 2006). The direct method requires her to show
that: (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) there is a
causal connection between the protected activity and the
adverse action. Id. at 663. The indirect method requires
her to show that: (1) she engaged in statutorily protected
activity; (2) she was performing her job to her employer's
legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably
than similarly situated employees who did not engage in
statutorily protected activity. Id. [*39] Once a prima
facie case is set forth, the burden-shifting pretext analysis
takes place. Id. Serednyj proceeds under both methods of
proof.
Serednyj claims that after she submitted her March
21, 2007, letter formally requesting an accommodation
pursuant to the PDA and ADA, Beverly began searching
for reasons to fire her. Specifically, Serednyj cites to
Mount's note that states, "office mess, attendance, overall
organization," and has the dates "3/23/2007" and
"3/26/2007" written on it.
For this claim to survive under either the direct or
indirect method of proof, Serednyj must bring forth evidence from which a reasonable jury could conclude that
she suffered an adverse employment action. Serednyj
admits that at the time she submitted her March 21,
2007, letter requesting an accommodation, she was no
longer an employee of Beverly. We can think of no reason why Beverly would look for reasons to fire her when
she was no longer an employee of the company. If anything, the evidence reflects that Mount considered her
request, contacted the Division Manager of Human Resources, Connie Rebey, to discuss the request, and called
Serednyj back to inform her, once again, that she was not
eligible [*40] for light duty work under the modified
work policy. This is not evidence of retaliation.
Serednyj also claims that Beverly fired her even
though she had paid leave remaining. As noted previously, the record reflects that Beverly paid all of Serednyj's sick and vacation leave pursuant to its policies.
Serednyj does not explain how paying the leave owed to
a terminated employee is a retaliatory, materially adverse
action taken against a former employee.
Lastly, Serednyj claims that Beverly indicated on
her state welfare form that she was "fired." According to
Serednyj, this is retaliatory because: (1) Beverly had
previously taken the position that she "quit," and (2) a
finding that she was "fired" could have jeopardized her
receipt of benefits. Serednyj has consistently taken the
position in this litigation that she was fired. As the district court recognized, Beverly reported what Serednyj
contends is true. Further, Serednyj received state welfare
benefits; thus, her contention that Beverly "could have"
jeopardized her benefits is mere conjecture. Accordingly,
the district court's grant of summary judgment on Serednyj's retaliation claim is affirmed.
III. Conclusion
For the foregoing reasons, [*41] we AFFIRM the district court's grant of summary judgment against Serednyj.
App. Def. 181
Page 1
29 of 124 DOCUMENTS
WILMA NICOLE STOUT, on behalf of herself and all others similarly situated,
Plaintiff-Appellant, versus BAXTER HEALTHCARE CORPORATION, DefendantAppellee.
No. 00-60542
February 19, 2002, Decided
PRIOR HISTORY:
States District Court for the Northern District of Mississippi. 4:99-CV-129-EMB. Eugene M Bogen, US Magistrate Judge.
Stout v. Baxter Healthcare Corp., 107 F. Supp. 2d
744, 2000 U.S. Dist. LEXIS 10809 (N.D. Miss. 2000).
CASE SUMMARY:
PROCEDURAL POSTURE: In a putative class action,
plaintiff former employee sued defendant former employer pursuant to Title VII of the Civil Rights Act of
1964, as amended by the Pregnancy Discrimination Act
of 1978 (PDA), 42 U.S.C.S. § 2000e(k). The employee
appealed a summary judgment granted by the United
States District Court for the Northern District of Mississippi in favor of the employer and the denial of her cross
motion for summary judgment.
OVERVIEW: The present case did not involve any
claim that any of the employer's job requirements were
not actual, legitimate requirements of the job. Nor did the
employee claim that the employer's leave policy treated a
class of disabilities which included pregnancy less favorably than other classes of disabilities that did not include pregnancy. And, the employee had no evidence
that the employer had in any way applied its policy unevenly or favored non-pregnant employees. In the end,
the employee's claim was simply that she should have
been granted medical leave that was more generous than
that granted to non-pregnant employees. This the PDA
did not require.
OUTCOME: The order of the district court granting
summary judgment for the employer was affirmed.
Novo Review
[HN1] An appellate court reviews a grant of summary
judgment de novo.
Civil Procedure > Discovery > Methods > General
Overview
Genuine Disputes
Materiality
[HN2] Summary judgment is appropriate 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).
App. Def. 182
Page 2
282 F.3d 856, *; 2002 U.S. App. LEXIS 2573, **;
& Sex Discrimination > Employment Practices > Compensation
[HN3] Title VII of the Civil Rights Act of 1964 prohibits
an employer from discriminating against any individual
with respect to compensation, terms, conditions, or privileges of employment, because of such individual's sex.
42 U.S.C.S. § 2000e-2(a)(1). The Pregnancy Discrimination Act of 1978, 42 U.S.C.S. § 2000e(k), amended Title
VII by explicitly including discrimination based on pregnancy and related medical conditions within the definition of sex discrimination.
[HN4] See 42 U.S.C.S. § 2000e(k).
Labor & Employment Law > Discrimination > Disparate Impact > Coverage & Definitions
Labor & Employment Law > Discrimination > Disparate Treatment > Coverage & Definitions
[HN5] The Pregnancy Discrimination Act of 1978, 42
U.S.C.S. § 2000e(k), does not protect a pregnant employee from being discharged for being absent from
work even if her absence is due to pregnancy or to complications of pregnancy, unless the absences of nonpregnant employees are overlooked.
Labor & Employment Law > Discrimination > Disparate Impact > Defenses & Exceptions > Business Necessity & Job Relatedness
Labor & Employment Law > Discrimination > Disparate Impact > Employment Practices > Selection Procedures > Neutral Factors
[HN6] Disparate impact claims involve employment
practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one
group than another and cannot be justified by business
necessity.
Labor & Employment Law > Discrimination > Disparate Impact > Employment Practices > General Overview
Labor & Employment Law > Discrimination > Disparate Impact > Proof > Statistical Evidence
Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Statistical Evidence
[HN7] To establish a prima facie case of disparate impact, a plaintiff must both identify the employment practice that has the allegedly disproportionate impact and
establish causation by offering statistical evidence to
show that the practice in question has resulted in prohibited discrimination. Ordinarily, a prima facie disparate
impact case requires a showing of a substantial statistical
disparity between protected and non-protected workers
in regards to employment or promotion. Although normally a plaintiff must provide comparative statistical
evidence demonstrating a disparity in impact of a particular policy, a plaintiff could prove a prima facie disparate impact case without statistical evidence.
U.S.C.S. § 2000e(k), applies to pregnancy, childbirth,
and related medical conditions. 42 U.S.C.S. § 2000e(k).
[HN9] In certain situations a Title VII of the Civil Rights
Act of 1964 plaintiff is relieved of a burden they would
ordinarily bear: the production of statistical evidence
comparing the effects of a challenged policy on protected
and unprotected groups of employees. However, when
the Garcia rule is applied to cases in which a plaintiff
challenges only an employer's limit on absenteeism the
rule produces an effect which is contrary to the plain
language of the statute.
U.S.C.S. § 2000e(k), does not require preferential treatment of pregnant employees and does not require em-
App. Def. 183
Page 3
282 F.3d 856, *; 2002 U.S. App. LEXIS 2573, **;
ployers to treat pregnancy related absences more leniently than other absences.
Labor & Employment Law > Discrimination > Disparate Impact > Proof > Burdens of Proof
[HN11] The language of the Pregnancy Discrimination
Act of 1978, 42 U.S.C.S. § 2000e(k), requires that pregnant employees be treated the same for all employment
related purposes as other employees with respect to their
ability or inability to work. 42 U.S.C.S. § 2000e(k).
Women affected by pregnancy shall be treated the same
for all employment related purposes as other persons not
so affected but similar in their ability or inability to
work.
COUNSEL: For WILMA NICOLE STOUT, Plaintiff Appellant: Ellis F Turnage, Cleveland, MS.
For BAXTER HEALTHCARE CORPORATION, Defendant - Appellee: Paula Graves Ardelean, Paul Albert
Hurst, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS.
JUDGES: Before GARWOOD, JOLLY and DeMOSS,
Circuit Judges.
OPINION BY: GARWOOD
OPINION
[*858] GARWOOD, Circuit Judge:
In this putative class action Plaintiff-Appellant
Wilma Stout (Stout) sued Defendant-Appellee Baxter
Healthcare Corp. (Baxter) pursuant to Title VII of the
Civil Rights Act of 1964, as amended by the Pregnancy
Discrimination Act of 1978 (PDA), 42 U.S.C. §
2000e(k). 1 Stout appeals a summary judgment in favor
of Baxter and the denial of her cross motion for summary
judgment. Finding no error, we affirm.
1 Stout is only asserting a claim under the PDA;
the Family and Medical Leave Act (FMLA), 29
U.S.C. §§ 2601-2654, is not at issue in this case.
The FLMA does not apply to employees, such as
Stout, who have been employed less than twelve
months or who have worked less than 1,250
hours during the previous twelve months. See 29
U.S.C. § 2611(2)(A).
[**2] Facts and Proceedings Below
Stout was hired by Baxter as a material handler in
May of 1998. Pursuant to Baxter's standard policy, Stout
was a probationary employee for the first ninety days of
her employment. During this probationary period, Baxter
evaluates new hires' job skills and performance. Probationary [*859] employees are subject to a strict attendance policy: anyone who misses more than three days
during the period is terminated. Baxter does not provide
vacation time or medical leave for probationary employees.
Stout, who was pregnant during the probationary period, received positive performance reviews and maintained a perfect attendance record during her first two
months. But, beginning on August 14, 1998, Stout was
absent for more than three days of work after she experienced early labor and suffered a miscarriage that rendered her medically unable to work for over two weeks.
Stout notified her supervisor of her condition immediately, and provided a medical excuse a week later, but
Baxter terminated Stout on August 21 because her absenteeism was clearly in excess of that permitted during the
probationary period.
After receiving a right-to-sue letter from the Equal
Employment [**3] Opportunity Commission (EEOC),
Stout sued Baxter claiming pregnancy discrimination
under the PDA and alleging that she was fired "because
of" her pregnancy and that Baxter's probationary attendance policy has a disparate impact on pregnant employees. Baxter moved to dismiss, or, in the alternative, for
summary judgment, arguing that Stout had failed to state
a cause of action under the PDA and to create a genuine
issue of material fact as to whether Baxter had discriminated against her on the basis of her pregnancy. Stout
also filed a motion for summary judgment on the issue of
liability, arguing that Baxter had failed to raise a fact
issue as to whether Stout was fired because of her pregnancy and whether Baxter's probationary policy had a
disparate impact on pregnant women. The district court
denied Stout's motion but granted Baxter's motion for
summary judgment.
Discussion
[HN1] We review a grant of summary judgment de
novo. Amburgey v. Corhart Refractories Corp., 936
F.2d 805, 809 (5th Cir. 1991). [HN2] Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show [**4] 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).
App. Def. 184
Page 4
282 F.3d 856, *; 2002 U.S. App. LEXIS 2573, **;
[HN3] Title VII of the Civil Rights Act prohibits an
employer from "discriminating against any individual
with respect to . . . compensation, terms, conditions, or
privileges of employment, because of such individual's . .
. sex. . . ." 42 U.S.C. § 2000e-2(a)(1). The PDA amended
Title VII by explicitly including discrimination based on
pregnancy and related medical conditions within the
definition of sex discrimination:
"[HN4] The terms 'because of sex' or 'on
the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all
employment-related purposes . . . as other
persons not so affected but similar in their
ability or inability to work. . . ."
42 U.S.C. § 2000e(k). Stout alleged that she was the victim of two types of discrimination prohibited by Title
VII: disparate treatment and disparate impact.
[**5] Disparate Treatment
Stout's claim of disparate treatment has no merit.
She argues that she was fired "because of" her pregnancy. But, to the contrary, all of the evidence in the
record indicates that she "was fired because of her absenteeism, not because of her pregnancy." Dormeyer v. Comerica [*860] Bank-Ill., 223 F.3d 579, 583 (7th Cir.
2000). There is no evidence she would have been treated
differently if her absences had been due to some reason
unrelated to pregnancy or if she had been absent the
same amount but not pregnant. Baxter's policy does not
in any way mention or focus on pregnancy, childbirth or
any related medical condition. So far as here relevant, it
merely limits the permissible absenteeism, on any basis,
of all probationary employees. Although Baxter's policy
results in the dismissal of any pregnant or post-partum
employee who misses more than three days of work during the probationary period, it equally requires the termination of any non-pregnant employee who misses more
than three days. There is no evidence in the record that
Stout was treated any differently than any other employee who failed to comply with Baxter's probationary
attendance [**6] policy. Such a policy does not violate
the PDA: "[HN5] The [PDA] does not protect a pregnant
employee from being discharged for being absent from
work even if her absence is due to pregnancy or to complications of pregnancy, unless the absences of nonpregnant employees are overlooked." Id. (collecting cases).
The district court properly granted Baxter's summary
judgment motion with respect to her disparate treatment
claim.
Disparate Impact
The Supreme Court has explained disparate impact
in the following way: "[[HN6] Disparate impact claims]
involve employment practices that are facially neutral in
their treatment of different groups but that in fact fall
more harshly on one group than another and cannot be
justified by business necessity." Int'l Brotherhood of
Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843,
1854-55 n. 15, 52 L. Ed. 2d 396 (1977) (citations omitted). [HN7] To establish a prima facie case of disparate
impact, a plaintiff must both identify the employment
practice that has the allegedly disproportionate impact
and establish causation by offering statistical evidence to
show that the practice in question has resulted in prohibited discrimination. [**7] See Watson v. Ft. Worth
Bank and Trust, 487 U.S. 977, 108 S. Ct. 2777, 2788,
101 L. Ed. 2d 827 (1988). Ordinarily, a prima facie disparate impact case requires a showing of a substantial
"statistical disparity between protected and non-protected
workers in regards to employment or promotion." Munoz
v. Orr, 200 F.3d 291, 299-300 (5th Cir. 2000).
Although normally a plaintiff must provide comparative statistical evidence demonstrating a disparity in
impact of a particular policy, in Garcia v. Woman's Hospital of Texas, 97 F.3d 810 (5th Cir. 1996), we held that
a plaintiff could prove a prima facie disparate impact
case without statistical evidence. In Garcia, the plaintiff
attempted to return to her job after complications from
pregnancy required her to miss approximately one month
of work. Garcia's employer refused to allow her to return
to work, on the grounds that her pregnancy disqualified
her from being able to lift 150 pounds. The hospital,
Garcia's employer, contended that lifting 150 pounds was
a bona fide job requirement, but admitted that it did not
test Garcia's lifting capabilities when she was hired, that
[**8] it did not test any current employees, and that it
also did not test job applicants. Garcia argued that the
lifting requirements were artificial and that no nurse was
actually required to lift that amount as part of his or her
work. Id. at 812. At the conclusion of trial, the district
court granted the hospital's Rule 50 motion on the basis
that Garcia had failed to make out a claim for disparate
treatment. Even though Garcia had not provided any
statistical comparison demonstrating a disparate impact,
we remanded the case for [*861] further proceedings on
this issue. We held that Garcia did not necessarily have
to offer comparative statistical evidence to prove a prima
facie disparate impact case: "If all or substantially all
pregnant women would be advised by their obstetrician
not to lift 150 pounds, then they would certainly be disproportionately affected by this supposedly mandatory
App. Def. 185
Page 5
282 F.3d 856, *; 2002 U.S. App. LEXIS 2573, **;
job requirement for [employees] at the Hospital. Statistical evidence would be unnecessary if Garcia could establish this point." Id. at 813.
There is no evidence that Stout (or any other pregnant probationary employee) was treated any differently
than any other probationary [**9] employee who missed
work. In fact, Stout repeatedly asserts in her brief that
Stout was treated exactly the same as any other employee
who was unable to work. Stout's focus is on the policy
itself; Stout claims that the policy affects all pregnant
women and that therefore she has provided sufficient
evidence to prove a prima facie disparate impact case.
Stout has provided expert testimony that no pregnant
woman who gives birth will be able to work for at least
two weeks. We agree with Stout that this does constitute
evidence that "all or substantially all" pregnant women
who give birth 2 during the probationary period will be
terminated. Stout argues that under Garcia, she has provided evidence sufficient to establish a prima facie case
of pregnancy discrimination. If Stout's interpretation of
Garcia was correct, we might agree. However, we decline the invitation to expand Garcia to the extent Stout's
argument requires.
2 [HN8] The PDA applies to "pregnancy, childbirth, [and] related medical conditions. . . ." 42
U.S.C. § 2000e(k).
[**10] In effect, Garcia provides a procedural
short cut to PDA plaintiffs. [HN9] In certain situations a
Title VII plaintiff is relieved of a burden they would ordinarily bear: the production of statistical evidence comparing the effects of a challenged policy on protected and
unprotected groups of employees. However, when the
Garcia rule is applied to cases (such as this one) in
which a plaintiff challenges only an employer's limit on
absenteeism the rule produces an effect which is contrary
to the plain language of the statute. It is the nature of
pregnancy and childbirth that at some point, for a limited
period of time, a woman who gives birth will be unable
to work. All job requirements, regardless of their nature,
affect "all or substantially all pregnant women." If Garcia is taken to its logical extreme, then every pregnant
employee can make out a prima facie case against her
employer for pregnancy discrimination, unless the employer grants special leave to all pregnant employees.
This is not the [HN10] law--the PDA does not require
preferential treatment of pregnant employees and does
not require employers to treat pregnancy related absences
more leniently than other absences. [**11] Urbano v.
Continental Airlines, Inc., 138 F.3d 204, 208 (5th Cir.
1998).
Accordingly, we are unwilling to extend the Garcia
rule to those disparate impact claims, such as this one, in
which the plaintiff's only challenge is that the amount of
sick leave granted to employees is insufficient to accommodate the time off required in a typical pregnancy.
To hold otherwise would be to transform the PDA into a
guarantee of medical leave for pregnant employees,
something we have specifically held that the PDA does
not do. See id. at 206-08. Such a rule would also be distinctly at odds with [HN11] the language of the statute,
which requires that pregnant employees be treated the
same for all employment related purposes as other employees with respect to their ability or inability to work.
See 42 U.S.C. § 2000e(k) [*862] ([Women affected by
pregnancy] "shall be treated the same for all employment
related purposes . . . as other persons not so affected but
similar in their ability or inability to work . . . .") (emphasis added). We therefore reject Stout's argument that
she proved a prima facie disparate impact case [**12]
simply by showing that Baxter's policy affected all or
substantially all pregnant women who would give birth
during or near to their probationary period.
The present case does not involve any claim that any
of Baxter's job requirements are not actual, legitimate
requirements of the job. Nor does Stout claim that Baxter's leave policy treats a class of disabilities which includes pregnancy less favorably than other classes of
disabilities that do not include pregnancy. And, Stout has
no evidence that Baxter has in any way applied its policy
unevenly or has favored non-pregnant employees. In the
end, Stout's claim in this case is simply that she should
have been granted medical leave that is more generous
than that granted to non-pregnant employees. This the
PDA does not require.
Conclusion
The order of the district court granting summary
judgment for Baxter is
AFFIRMED.
App. Def. 186
Page 1
MIRTHA URBANO, Plaintiff-Appellant, versus CONTINENTAL AIRLINES, INC.,
Defendant-Appellee.
96-21115
April 15, 1998, Decided
SUBSEQUENT HISTORY:
Certiorari Denied November 16, 1998, Reported at: 1998 U.S. LEXIS 7273.
OPINION BY: EDITH H. JONES
OPINION
PRIOR HISTORY:
States District Court for the Southern District of Texas.
H-95-CV-3508. Vanessa D Gilmore, US District Judge.
DISPOSITION: District court's order granting judgment as a matter of law in favor of the employer AFFIRMED.
COUNSEL: For MIRTHA URBANO, Plaintiff - Appellant: Douglas H Maddux, Jr, Humble, TX. Elizabeth Bohorquez, Houston, TX.
For CONTINENTAL AIRLINES INC., Defendant - Appellee: Robin Elizabeth Curtis, Margaret Coullard Phillips, Continental Airlines, Houston, TX.
For WOMENS LEGAL DEFENSE FUND, Amicus Curiae, Donna R Lenhoff, Rebecca Epstein, Womens's Legal Defense Fund, Washington, DC.
For AMERICAN CIVIL LIBERTIES UNION FOUNDATION WOMEN'S RIGHT PROJECT, Amicus Curiae, Sara Mandelbaum, American Civil Liberties Union,
New York, NY.
For AMERICAN CIVIL LIBERTIES UNION OF
TEXAS, Amicus Curiae: Jeffery P Hintermeister, Houston, TX.
JUDGES:
Before
REAVLEY,
BENAVIDES, Circuit Judges.
JONES,
and
[*205] EDITH H. JONES, Circuit Judge:
Appellant Urbano challenges the district court's
holding that a company policy of granting light-duty
assignments only to workers who suffer occupational
injuries does not violate Title VII, as amended by the
Pregnancy Discrimination Act ("PDA"). Because the
PDA protects pregnant women only from being treated
differently than similarly-situated non-pregnant employees, it does not guarantee light-duty assignments. We
affirm the judgment as a matter of law for Continental
Airlines, Inc.
BACKGROUND
In 1990, Mirtha Urbano began working for Continental Airlines in various capacities, most recently as a
Ticketing Sales Agent. In that job, she assisted customers
with sales and checking-in passengers and their baggage,
often lifting loads in excess of twenty pounds.
In October of 1994, Urbano learned she was pregnant. Shortly thereafter, she began suffering low-back
discomfort and went to see [**2] her doctor. The doctor
ordered her to refrain from lifting anything over twenty
pounds for the balance of her pregnancy.
Pursuant to these instructions, Urbano requested to
work in a Service Center Agent position, which does not
require employees to lift heavy loads. The request was
denied because Continental's transitional duty policy
grants light-duty assignments only to employees who
suffer an occupational injury. Employees with a nonoccupational injury or illness who would like a less physically demanding position must go through Continental's
App. Def. 187
Page 2
138 F.3d 204, *; 1998 U.S. App. LEXIS 7454, **;
normal duty assignment system, in which employees bid
for the positions of their choice, and the positions are
assigned by seniority. Continental deemed Urbano ineligible under its policy for a mandatory light duty transfer.
Unable to return to work and comply with her doctor's
restrictions, Urbano was forced to use her accrued sick
days, followed by a ninety-day family leave and then
unpaid medical leave.
By March of 1995, Urbano filed charges of discrimination with the E.E.O.C. On March 30, 1995, Urbano received her right-to-sue letter and timely filed suit
in federal district court, alleging, inter alia, a disparate
treatment theory [**3] of pregnancy discrimination.
After the district court granted Continental's motion
judgment as a matter of law, this appeal followed. 1
1 In addition to her claim of discrimination under the theory of disparate treatment, Urbano
challenges the district court's order granting
judgment as a matter of law on her claims of disparate impact and retaliatory discharge under the
PDA, as well as her claim of retaliatory discharge
under the FMLA. We have reviewed the briefs
and the pertinent portions of the record and find
no reversible error. Urbano did not adduce evidence sufficient to create a genuine issue of material fact on those claims. Accordingly, we affirm
on these issues for essentially the reasons relied
upon by the district court.
STANDARD OF REVIEW
This court reviews the grant of summary judgment
de novo, applying the same standards as the district
court. See Duffy v. Leading Edge Prods., Inc., 44 F.3d
308, 312 (5th Cir. 1995). Summary judgment is appropriate, when, viewing the evidence in the [**4] light
most favorable to the nonmoving party, the record reflects that no genuine issue of any material fact exists,
and the moving party is entitled to judgment as a matter
of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 32224, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986);
see also Fed. R. Civ. P. 56(c). Once the movant carries
his burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a
genuine issue for trial." Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).
DISCUSSION
Title VII of the 1964 Civil Rights Act "prohibits
various forms of employment discrimination, [*206]
including discrimination on the basis of sex." California
Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 276-77,
107 S. Ct. 683, 687, 93 L. Ed. 2d 613 (1987). With the
passage of the PDA in 1978, Congress amended the
definitional section of Title VII as follows:
The terms "because of sex" or "on the basis of sex" include, but are not limited to,
because of or on the basis of pregnancy,
childbirth, or related medical conditions;
and women affected by pregnancy, childbirth, or related medical conditions shall
be treated the same for [**5] all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected
but similar in their ability or inability to
work . . . .
42 U.S.C. § 2000e(k) (1994). A claim under the PDA is
analyzed like Title VII discrimination claims in general.
See Garcia v. Woman's Hosp., 97 F.3d 810, 812-13 (5th
Cir. 1996).
To establish a prima facie case of discrimination under Title VII, a plaintiff may prove her claim either
through direct evidence, statistical proof, or the test established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973). The McDonnell Douglas test requires the
plaintiff to show: (1) she was a member of a protected
class, (2) she was qualified for the position she lost, (3)
she suffered an adverse employment action, and (4) that
others similarly situated were more favorably treated.
See Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir.
1996) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.
Ct. at 1824). Once the employer articulates a legitimate,
nondiscriminatory reason for the employment action,
however, the scheme of shifting burdens and presumptions [**6] "simply drops out of the picture," and "the
trier of fact proceeds to decide the ultimate question:
whether plaintiff has proved 'that the defendant intentionally discriminated against [her]' because of [her
sex]." St. Mary's Honor Center v. Hicks, 509 U.S. 502,
113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) (internal citation omitted).
The district court found that Urbano failed to establish the second prong of her prima facie case for disparate treatment. Specifically, the district court held that
Urbano could not "provide evidence creating a genuine
issue as to whether she was qualified for transfer into a
light-duty position, i.e., that she sustained a work related
injury." Continental also asserts that Urbano failed to
offer evidence that she was treated differently under
App. Def. 188
Page 3
138 F.3d 204, *; 1998 U.S. App. LEXIS 7454, **;
Continental's policy than other employees with nonoccupational injuries.
We agree.
Continental treated Urbano in exactly the same
manner as it would have treated any other worker who
was injured off the job. Light duty assignments were at a
premium. Each of the forty-eight employees who received a light-duty assignment in 1994 had suffered an
occupational injury. Urbano was not denied a light-duty
assignment [**7] because of her pregnancy, but because
her back troubles were not work related. Under the PDA,
an employer is obliged to ignore a woman's pregnancy
and "to treat the employee as well as it would have if she
were not pregnant." Piraino v. International Orientation
Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996). Thus,
Continental was entitled to deny Urbano a light-duty
assignment as long as it "treats similarly affected but
nonpregnant employees" the same. Troupe v. May Dep't
Stores Co., 20 F.3d 734, 738 (7th Cir. 1994); see also
Guerra, 479 U.S. at 285-86, 107 S. Ct. at 692. Without a
showing that Continental adhered to the requirements of
the light-duty policy only in cases involving its pregnant
workers, Urbano cannot maintain that she was a victim
of discrimination under the PDA. See Rhett v. Carnegie
Ctr. Assocs. (In re Carnegie Ctr. Assocs.), 129 F.3d 290,
296 (3d Cir. 1997); Geier, 99 F.3d at 242-43; Troupe, 20
F.3d at 738.
Urbano argues that she was physically and mentally
qualified to perform the duties required for light-duty
assignment, but that Continental's policy of granting light
duty only to employees who are injured on the job deprived her of an employment opportunity [**8] on the
basis of her pregnancy. Under this theory, employees
who are unable to perform their regular duties because of
their pregnancy [*207] will never be able to enjoy the
same benefits as employees who suffer occupational
injuries, even though these two groups are no different in
their ability or inability to work. Urbano concludes that
Continental's policy discriminated against her on the
basis of her pregnancy and, therefore, violates the PDA.
Appellant relies heavily on the Sixth Circuit's opinion in Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir.
1996). At the heart of Ensley-Gaines was a Postal Service policy of granting "limited duty" assignments to
employees who were injured on the job, and "light duty"
assignments to employees with non-work related conditions. Because the "light duty" assignments were granted
at the employer's discretion and "limited duty" assignments were granted as employee entitlements, a pregnant
employee who received light duty for only a few hours a
day challenged the policy as being violative of Title VII.
The Sixth Circuit held that a plaintiff establishes a prima
facie case of discrimination when she can demonstrate
that her employer's policy treats pregnant [**9] women
differently than workers who are injured on the job. The
Sixth Circuit reasoned that the PDA requires employers
to treat pregnant employees in the same manner as they
would other employees who were similarly situated with
respect to their ability or inability to work. See id. at
1226. Because pregnant employees and employees who
were injured on the job are no different in their ability or
inability to do their work, the latter cannot receive more
favorable treatment than the former.
The appellant argues that "the Sixth Circuit's reasoning is sound because it would defeat the very purpose of
the PDA to allow an employer to deny pregnant employees opportunities because they could not meet a 'qualification' that was itself discriminatory." On the contrary,
the rule advocated by Urbano and the Sixth Circuit effectuates discrimination contrary to the PDA -in favor of
pregnant employees.
The PDA must be understood in the context in
which it was enacted. See Guerra, [*208] 479 U.S. at
284, 107 S. Ct. at 691. The Supreme Court held in General Electric Co. v. Gilbert, 429 U.S. 125, 136-138, 97 S.
Ct. 401, 408-09, 50 L. Ed. 2d 343 (1976), that under Title
VII, discrimination on the basis of [**10] pregnancy
was not sex discrimination. In the wake of this decision,
Congress passed the PDA, Pub. L. No. 95-555, 92 Stat.
2076 (1978). The PDA amended the definitional provision of Title VII "to specify that sex discrimination includes discrimination on the basis of pregnancy."
Guerra, 479 U.S. at 277, 107 S. Ct. at 687. In so doing,
Congress "unambiguously expressed its disapproval"
with the Gilbert decision. Newport News Shipbuilding &
Dry Dock Co. v. EEOC, 462 U.S. 669, 678, 103 S. Ct.
2622, 2628, 77 L. Ed. 2d 89 (1983).
Against this legislative backdrop, most courts have
held that the PDA does not impose an affirmative obligation on employers to grant preferential treatment to pregnant women. See Guerra, 479 U.S. at 284-86, 107 S. Ct.
at 691-92; In re Carnegie Ctr. Assocs., 129 F.3d at 295
("The PDA does not require that employers treat pregnant employees better than other temporarily disabled
employees."); Lang v. Star Herald, 107 F.3d 1308, 1312
(8th Cir. 1997) ("[The PDA] does not create substantive
rights to preferential treatment."); Garcia, 97 F.3d at
813. ("The PDA does not mandate preferential treatment
for pregnant women . . . ."); Armstrong v. Flowers Hosp.,
Inc., [**11] 33 F.3d 1308, 1312 (11th Cir. 1994)
("Rather than introducing new substantive provisions
protecting the rights of pregnant women, the PDA
brought discrimination on the basis of pregnancy within
the existing statutory framework prohibiting sex-based
discrimination."); Troupe, 20 F.3d at 738 ("The Pregnancy Discrimination Act does not . . . require employers
to offer maternity leave or take other steps to make it
App. Def. 189
Page 4
138 F.3d 204, *; 1998 U.S. App. LEXIS 7454, **;
easier for pregnant women to work . . . ."). By defining
sex discrimination under Title VII to include pregnancy,
Congress intended to do no more than "re-establish principles of Title VII law as they had been understood prior
to the Gilbert decision," Newport News, 462 U.S. at 679,
103 S. Ct. at 2628, and ensure that female workers would
not be treated "differently from other employees simply
because of their capacity to bear children," Johnson Controls, 499 U.S. 187 at 205, 111 S. Ct. 1196 at 1206, 113
L. Ed. 2d 158. The Sixth Circuit drew the opposite conclusion without citing any of the opposing circuit court
decisions and after distinguishing, unpersuasively, a previous case from its own court. The impact of EnsleyGaines is unequivocally to treat pregnant employees who
need light duty work better [**12] than other employees
with a similar medical need whose conditions arose offthe-job. This is contrary to Guerra. 479 U.S. at 291, 107
S. Ct. at 695 (holding that while the PDA does not mandate better treatment for pregnant than non-pregnant employees, it does not pre-empt a state law that "establishes
benefits that employers must, at a minimum, provide to
pregnant women").
In this case, Continental treated Urbano the same as
it treats any other worker who suffered an injury off
duty. There is no probative evidence that Continental's
distinction between occupational and off-the-job injuries
was a pretext for discrimination against pregnant women
or that it had a disparate impact on them. Urbano's claim
is thus not a request for relief from discrimination, but
rather a demand for preferential treatment; it is a demand
not satisfied by the PDA. 2 As long as pregnant employees are treated the same as other employees injured off
duty, the PDA does not entitle pregnant employees with
non-work related infirmities to be treated the same under
Continental's light-duty policy as employees with occupational injuries.
2 Indeed it could be argued that granting pregnant employees a benefit men are ineligible to receive is not only not required under the PDA, but
it is also not permissible under Title VII, for such
a policy would treat a male employee "'in a manner which but for that person's sex would be different.'" Newport News, 462 U.S. at 683, 103 S.
Ct. at 2631 (quoting Los Angeles Dep't of Water
& Power v. Manhart, 435 U.S. 702, 711, 98 S. Ct.
1370, 1377, 55 L. Ed. 2d 657 (1978)). The PDA
merely specifies that under Title VII an employer
must not discriminate on the basis of a women's
pregnancy; it does not "erase the original prohibition against discrimination on the basis of an employee's sex." Newport News, 462 U.S. at 685,
103 S. Ct. at 2632.
[**13] CONCLUSION
For the foregoing reasons, the district court's order
granting judgment as a matter of law in favor of the employer is AFFIRMED.
App. Def. 190
Page 1
Maria A. Villarreal VS. J.E. Merit Constructors, Inc.
CIVIL ACTION NO. G-95-200
TEXAS, GALVESTON DIVISION
895 F. Supp. 149; 1995 U.S. Dist. LEXIS 11280; 4 Am. Disabilities Cas. (BNA) 1343
August 7, 1995, ENTERED
COUNSEL: [**1] FOR MARIA A VILLAREAL,
plaintiff: John F Nichols, Attorney at Law, Houston, TX.
FOR J. E. MERIT CONSTRUCTORS, INC., defendant:
Sharon Stagg, Kathleen Reilly Richards, Hays McConn
Price & Pickering, Houston, TX.
JUDGES: SAMUEL B. KENT, UNITED STATES
DISTRICT JUDGE
OPINION BY: SAMUEL B. KENT
OPINION
[*150] ORDER
Pending before the Court is Defendant's Motion to
Dismiss Plaintiff's claims brought under the American's
with Disabilities Act (hereinafter "ADA") pursuant to
Fed.R.Civ.P. 12(b)(6). For the reasons set forth below,
Defendant's Motion to Dismiss Plaintiff's claims brought
under the ADA is GRANTED.
I. Background
Plaintiff brings this action for damages resulting
from Defendant's alleged discriminatory employment
practices. On September 26, 1990, Plaintiff began her
employment with the Defendant, when Defendant purchased the company for which Plaintiff had been working for the previous three and a half years. Plaintiff began as a janitor and worked her way up to crew chief of a
janitorial crew earning $ 9.90 per hour.
Plaintiff worked regularly until the fifth month of
her pregnancy in 1993, when she miscarried. It was
medically required that she be absent from work for four
months. On [**2] January 11, 1994, Plaintiff allegedly
announced her pregnancy to the Defendant. The following day, January 12, 1994, Plaintiff was allegedly informed by Defendant's Safety Director, Colleen Fisk,
that she would need to submit to a drug test. Plaintiff
allegedly had no objection to such drug test because she
had been tested on four prior occasions: September 14,
1990 as a condition of her employment; October 15,
1992; January 12, 1993; and August 10, 1993. On all
four occasions, Plaintiff allegedly tested negative for any
nonprescription drugs.
Plaintiff allegedly gave her urine sample directly to
Ms. Fisk. At that time, Ms. Fisk allegedly told Plaintiff
that she would probably fail the test because she was
pregnant. On January 13, 1994, Plaintiff worked her
regular shift without incident or comment from the Defendant.
On January 14, 1994, Plaintiff was told by her supervisor, Randy Carroll, that she had tested positive on
the drug test for cocaine. The test was conducted on-site
at the Exxon-Mont Belvieu Plastics Plant. Plaintiff allegedly requested that she be given another opportunity to
submit to a drug test, but she was refused. Subsequently,
Defendant fired Plaintiff over the [**3] telephone.
[*151] Upon the direction of her physician, Plaintiff submitted to another drug test at the San Jacinto
Medical Center, which tested negative. Plaintiff showed
the results of the latest drug test to Defendant's Human
Resources Director, Billie Roberts, but she was allegedly
refused re-employment.
According to Plaintiff, defendant had no independent basis for suspecting drug use on the part of Plaintiff.
However, she was allegedly selected for a "random" drug
screen on January 12, 1994 immediately following her
App. Def. 191
Page 2
announcement that she was pregnant. Plaintiff asserts
that her urine sample was tampered with by either Ms.
Fisk or other agents, servants or employees of Defendant. Specifically, Plaintiff contends that Ms. Fisk conducted her own drug screening on Plaintiff's urine sample, resealed it, and forwarded to Roche Laboratories for
testing. Plaintiff alleges that Ms. Fisk and/or other of
Defendant's representatives violated standard testing
procedures which mandate a confirmatory test when a
positive test result is obtained in order to avoid a false
positive.
According to Plaintiff, the Director of Toxicology
for Roche Laboratories admitted that it was possible that
the sample [**4] submitted by Plaintiff to Ms. Fisk
could have been contaminated or tampered with by Defendant or its laboratory when they unsealed the sample
for testing prior to forwarding it to Roche Laboratories.
Plaintiff asserts that she was terminated because she
had informed Defendant of her pregnancy. Plaintiff further asserts that Defendant sought to fire her because of
her prior miscarriage and prolonged absence from work.
Alternatively, Plaintiff argues that Defendant knew that
its employment Contract with Exxon's Mont Belvieu
Plastics Plant would not be renewed in August, 1994,
(the approximate time Plaintiff was to deliver her baby)
and Defendant would be exposed to government rules
and regulations as a consequence of Plaintiff's pregnancy. However, Defendant would not be exposed to
such regulations if Plaintiff were terminated on the basis
of testing positive for cocaine use.
Plaintiff brings claims under the following statutes:
(1) Title VII of Civil Rights Act of 1964, 42 U.S.C. §
2000e-2(a)(1) and the Texas Commission on Human
Rights Act of 1983; (2) Pregnancy Discrimination Act of
1978, 42 U.S.C. § 2000e-(k); (3) Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12117; [**5]
(4) Family and Medical Leave Act of 1993, 29 U.S.C. §§
2601-2654; and (5) common law causes of action for
intentional infliction of emotional distress, negligent
employment, fraud, and conspiracy to defraud.
On March 3, 1995, Plaintiff filed suit in the 344th
Judicial District of Chambers County, Texas. On April
13, 1995, Defendant removed this case to this Court pursuant to Title 28 U.S.C. § 1331 and § 1441(b) given that
this case is a civil action founded on claims or rights
arising under the Constitution and laws of the United
States. On April 18, 1995, Defendant filed the present
Motion to Dismiss Plaintiff's claims under the ADA.
Plaintiff did not file a Response to Defendant's Motion to
Dismiss.
II. Discussion
Plaintiff brings this action for damages resulting
from the alleged wrongful termination of employment by
Defendant. Defendant moves this Court to dismiss Plaintiff's claims brought pursuant to the ADA.
Title I of the ADA prohibits discrimination by a
covered employer against
a qualified individual with a disability
because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee [**6]
compensation, job training, and other
terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). A "qualified individual with a
disability" is defined by the ADA to mean "an individual
with a disability who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
In order for Plaintiff to establish a prima facie case
of employment discrimination under the ADA, the Plaintiff must show that (1) she was "disabled" as defined by
the ADA; (2) she was qualified with or without [*152]
accommodation, to do her job; (3) she was discharged;
and (4) she was replaced by a non-disabled person. Aikens v. Banana Republic, Inc., 877 F. Supp. 1031, 103637 (S.D. Tex. 1995); Rosen v. CSC Credit Services, 1995
WL 318507 (N.D. Tex. 1995); Stradley v. Lafourche
Communications, Inc., 869 F. Supp. 442, 443 (E.D.LA.
1994).
In the present case, Plaintiff asserts that Defendant
terminated her employment soon after she announced her
pregnancy. Plaintiff contends that Defendant tampered
with her urine sample in order to ensure that Plaintiff
would test positive for the use [**7] of cocaine. According to Plaintiff, Defendant terminated her employment
because she was pregnant. Plaintiff argues that her pregnancy constitutes a disability under the ADA.
An individual with a disability is defined as a person
with: (1) a physical or mental impairment that substantially limits one or more of the major life activities of
such individual; (2) a record of such an impairment; and
(3) being regarded as having such an impairment. 42
U.S.C. § 12101(2).
The Equal Employment Opportunity Commission's
interpretive guidance on Title I of the ADA states with
respect to the determination of whether an individual has
a "physical or mental impairment," that "it is important
to distinguish between conditions that are impairments
App. Def. 192
Page 3
and physical, psychological, environmental, cultural and
economic characteristics that are not impairments." 29
C.F.R. Pt. § 1630, App. at 395 (1994). The regulations
further explain that "conditions, such as pregnancy, that
are not the result of a physiological disorder are not impairments." Id. Moreover, the "temporary, non-chronic
impairments of short duration, with little or no long term
or permanent impact, are usually not disabilities." Id. at
396.
[**8] Based upon these regulations, this Court concludes that pregnancy and related medical conditions do
not, absent unusual circumstances, constitute a "physical
impairment" under the ADA. Therefore, pregnancy and
related medical conditions are not "disabilities" as that
term is defined by the ADA.
The Court's determination that pregnancy is not a
disability within the meaning of the ADA is further supported by the fact that employment discrimination on the
basis of pregnancy and related conditions is specifically
covered by Title VII of the Civil Rights Act of 1964 and
the Pregnancy Discrimination Act. Pregnancy discrimination is discrimination on the basis of sex as opposed to
discrimination on the basis of disability. The existence of
both Title VII and the Pregnancy Discrimination Act
obviate the need to extend the coverage of the ADA to
protect pregnancy and related medical conditions.
dant's Motion to Dismiss Plaintiff's ADA claims in the
ensuing four months. The Court finds that Defendant's
Motion to Dismiss Plaintiff claim brought pursuant to the
ADA are Unopposed.
For the reasons stated above, Defendant's Motion to
Dismiss Plaintiff claims brought pursuant to the Ada is
GRANTED. Plaintiff's claim against the Defendant for
violation of the ADA is HEREBY DISMISSED WITH
PREJUDICE. Furthermore, the parties are ORDERED to
file nothing further on this issue in this court, especially
Motions to Reconsider or the like, unless they can present compelling and relevant new evidence or legal authority [**10] which they could not, through the exercise of due diligence, have presented upon original submission [*153] of this Motion. Any and all further relief
on this issue shall be sought in due course from the
United States Court of Appeals for the Fifth Circuit.
IT IS SO ORDERED
Done this 4th day of August, 1995, at Galveston,
Texas.
SAMUEL B. KENT
FINAL JUDGMENT
Hence, the Court concludes that Plaintiff's pregnancy is not a "physical impairment" as required under
the ADA. Therefore, Plaintiff is not a qualified individual with a disability. The Court finds that Plaintiff has
failed to state a claim under the ADA upon which relief
can be granted. [**9] Thus, Plaintiff's claims against the
Defendant with regard to the ADA are dismissed.
For the reasons set forth in the Court's Order granting Defendant J.E. Merit Constructors, Inc's Motion to
Dismiss under Rule 12(b)(6), Plaintiff's claim against
Defendant for violation of the Americans with Disabilities Act is HEREBY DISMISSED WITH PREJUDICE.
All parties are to bear their own taxable costs incurred
herein to date.
Finally, the Court notes that Defendant filed the present Motion to Dismiss on April 18, 1995. Pursuant to
Local Rule 6(D), "opposed motions will be submitted to
the Judge twenty (20) days from filing without notice
from the clerk and without appearance by counsel." Furthermore, under Local Rule 6(E), "responses to motions
must be filed by the submission date" and "failure to
respond will be taken as a representation of no opposition." Plaintiff failed to file a Response to the Defen-
As to Plaintiff's claim against Defendant J.E. Merit
Constructors, Inc. for violation the Americans with Disabilities Act, THIS IS A FINAL JUDGMENT.
Done this 4th day of August, 1995, at Galveston,
Texas.
SAMUEL B. KENT
App. Def. 193
Disability Discrimination
Page 1 of 3
U.S. Equal Employment Opportunity Commission
Employer Coverage
15 or more
employees
Disability discrimination occurs when an employer or other entity covered by the
Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended,
treats a qualified individual with a disability who is an employee or applicant
unfavorably because she has a disability.
Time Limits
Disability discrimination also occurs when a covered employer or other entity treats
an applicant or employee less favorably because she has a history of a disability
(such as cancer that is controlled or in remission) or because she is believed to have
a physical or mental impairment that is not transitory (lasting or expected to last six
months or less) and minor (even if she does not have such an impairment).
180 days to file a
charge
(may be extended by
state laws)
The law requires an employer to provide reasonable accommodation to an employee
or job applicant with a disability, unless doing so would cause significant difficulty or
expense for the employer ("undue hardship").
The law also protects people from discrimination based on their relationship with a
person with a disability (even if they do not themselves have a disability). For
example, it is illegal to discriminate against an employee because her husband has a
disability.
Note: Federal employees and applicants are covered by the Rehabilitation Act of
1973, instead of the Americans with Disabilities Act. The protections are mostly the
same.
Disability Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including
hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and
any other term or condition of employment.
Disability Discrimination & Harassment
It is illegal to harass an applicant or employee because he has a disability, had a
disability in the past, or is believed to have a physical or mental impairment that is not
transitory (lasting or expected to last six months or less) and minor (even if he does
not have such an impairment).
Federal employees
have 45 days to
contact an EEO
counselor.
For more information,
see:
Facts About The
Americans with
Disabilities Act
Titles I and V of
the Americans
with Disabilities
Act of 1990
Sections 501 and
505 of the
Rehabilitation Act
of 1973
Regulations
Policy & Guidanc
Guidance
Harassment can include, for example, offensive remarks about a person's disability.
Statistics
Although the law doesn't prohibit simple teasing, offhand comments, or isolated
incidents that aren't very serious, harassment is illegal when it is so frequent or
severe that it creates a hostile or offensive work environment or when it results in an adverse employment
decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not
an employee of the employer, such as a client or customer.
Disability Discrimination & Reasonable Accommodation
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a
disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to
help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of
employment.
http://www1.eeoc.gov//laws/types/disability.cfm?renderforprint=1
App.11/23/2011
Def. 194
Page 2 of 3
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users
or providing a reader or interpreter for someone who is blind or hearing impaired.
While the federal anti-discrimination laws don't require an employer to accommodate an employee who must
care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take
such steps. The Department of Labor enforces the FMLA. For more information, call: 1-866-487-9243.
Disability Discrimination & Reasonable Accommodation & Undue Hardship
An employer doesn't have to provide an accommodation if doing so would cause undue hardship to the
employer.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the
employer's size, financial resources, and the needs of the business. An employer may not refuse to provide an
accommodation just because it involves some cost. An employer does not have to provide the exact
accommodation the employee or job applicant wants. If more than one accommodation works, the employer
may choose which one to provide.
Definition Of Disability
Not everyone with a medical condition is protected by the law. In order to be protected, a person must be
qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability in one of three ways:
z
z
z
A person may be disabled if he or she has a physical or mental condition that substantially limits a major life
activity (such as walking, talking, seeing, hearing, or learning).
A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
A person may be disabled if he is believed to have a physical or mental impairment that is not transitory
(lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Disability & Medical Exams During Employment Application & Interview Stage
The law places strict limits on employers when it comes to asking job applicants to answer medical questions,
take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer medical questions or take a medical exam
before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the
nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how
they would perform the job, with or without a reasonable accommodation.
Disability & Medical Exams After A Job Offer For Employment
After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant
answering certain medical questions or successfully passing a medical exam, but only if all new employees in
the same type of job have to answer the questions or take the exam.
Disability & Medical Exams For Persons Who Have Started Working As
Employees
Once a person is hired and has started work, an employer generally can only ask medical questions or require a
medical exam if the employer needs medical documentation to support an employee's request for an
accommodation or if the employer believes that an employee is not able to perform a job successfully or safely
because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate
medical files.
Available Resources
In addition to a variety of formal guidance documents, EEOC has developed a wide range of fact sheets,
question & answer documents, and other publications to help employees and employers understand the
complex issues surrounding disability discrimination.
App.11/23/2011
Def. 195
Your Employment Rights as an Individual
With a Disability
Job Applicants and the ADA
Veterans with Service-Connected
Disabilities in the Workplace and the ADA
Questions and Answers: Promoting
Employment of Individuals with Disabilities
in the Federal Workforce
The Family and Medical Leave Act, the
ADA, and Title VII of the Civil Rights Act of
1964
The ADA: A Primer for Small Business
Your Responsibilities as an Employer
Small Employers and Reasonable
Accommodation
Work At Home/Telework as a Reasonable
Accommodation
Applying Performance And Conduct
Standards To Employees With Disabilities
Obtaining and Using Employee Medical
Information as Part of Emergency
Evacuation Procedures
Veterans with Service-Connected
Disabilities in the Workplace and the ADAA Guide for Employers
Pandemic Preparedness in the Workplace
and the Americans with Disabilities Act
Employer Best Practices for Workers with
Caregiving Responsibilities
Reasonable Accommodations for Attorneys
Attorneys with Disabilities
How to Comply with the Americans with
Disabilities Act: A Guide for Restaurants
and Other Food Service Employers
Final Report on Best Practices For the
Employment of People with Disabilities In
State Government
ABCs of Schedule A Documents
Page 3 of 3
The ADA Amendments Act
z
z
z
z
Final Regulations Implementing the ADAAA
Questions and Answers on the Final Rule
Implementing the ADA Amendments Act of 2008
Questions and Answers for Small Businesses: The
Final Rule Implementing the ADA Amendments Act
of 2008
Fact Sheet on the EEOC’s Final Regulations
Implementing the ADAAA
The Questions and Answers Series
z
z
z
z
z
z
z
z
Health Care Workers and the Americans with
Disabilities Act
Deafness and Hearing Impairments in the
Workplace and the Americans with Disabilities Act
Blindness and Vision Impairments in the Workplace
and the ADA
The Americans with Disabilities Act's Association
Provision
Diabetes in the Workplace and the ADA
Epilepsy in the Workplace and the ADA
Persons with Intellectual Disabilities in the
Workplace and the ADA
Cancer in the Workplace and the ADA
Mediation and the ADA
z
z
Questions and Answers for Mediation Providers:
Mediation and the Americans with Disabilities Act
(ADA)
Questions and Answers for Parties to Mediation:
Mediation and the Americans with Disabilities Act
(ADA)
App.11/23/2011
Def. 196
11/23/11
The Family and Medical Leave Act, the Americans with Disabilities Act, and …
The U.S. Equal Employment Opportunity Commission
The Family and Medical Leave Act,
the Americans with Disabilities Act, and
Title VII of the Civil Rights Act of 1964
This fact sheet was prepared by the Equal Employment Opportunity
Commission's (EEOC) Office of Legal Counsel. It is intended to
provide technical assistance on some common questions that have
arisen about the Americans with Disabilities Act of 1990 (ADA)
and Title VII of the Civil Rights Act of 1964 (Title VII) when
the Family and Medical Leave Act of 1993 (FMLA) also applies.
Introduction
Background
1.
Q:
What is the relationship between requirements of the
FMLA,1 the ADA,2 and Title VII3?
A:
The FMLA and the ADA both require a covered employer
to grant medical leave to an employee in certain
circumstances.4 The FMLA and Title VII both have
requirements governing leave for pregnancy and
pregnancy-related conditions.
In addition, under Title VII, employers must not
discriminate on the basis of race, color, religion,
sex, or national origin when they provide family or
medical leave.
2.
3.
Q:
Who enforces the FMLA?
A:
The Department of Labor enforces the FMLA. The EEOC
has no enforcement responsibility for the FMLA.
Q:
When did the FMLA go into effect?
A:
The FMLA went into effect on August 5, 1993.5 The
FMLA final rule became effective on April 6, 1995.6
Notice Concerning The
Americans With
Disabilities Act
Amendments Act Of
2008
The Americans with Disabilities
Act (ADA) Amendments Act of
2008 was signed into law on
September 25, 2008 and
becomes effective January 1,
2009. Because this law makes
several significant changes,
including changes to the
definition of the term
"disability," the EEOC will be
evaluating the impact of
these changes on this
document and other
publications. See the list of
specific changes to the ADA
made by the ADA
Amendments Act.
Basic FMLA Requirements
4.
Q:
What leave is an employee entitled to under the FMLA?
A:
Under the FMLA, an "eligible"7 employee may take up
to 12 workweeks of leave during any 12-month period
for one or more of the following reasons:
(1)
The birth of a child, and to care for the
newborn child;
(2)
The placement of a child with the employee
through adoption or foster care, and to care
for the child;8
(3)
To care for the employee's spouse, son,
www.eeoc.gov/policy/docs/fmlaada.html
1/11
App. Def. 197
11/23/11
daughter, or parent with a serious health
condition; and
(4)
5.
Because a serious health condition makes the
employee unable to perform one or more of the
essential functions of his or her job.9
Q:
What other rights do "eligible" employees have in
conjunction with FMLA leave?
A:
During FMLA leave, an employer must maintain the
employee's existing level of coverage under a group
health plan.10 At the end of FMLA leave, an employer
must take an employee back into the same or an
equivalent job.11
When FMLA, ADA and Title VII Coverage Overlap
6.
Q:
What employers are covered by the FMLA, the ADA and
Title VII?
A:
The FMLA covers private employers with 50 or more
employees.12 The ADA and Title VII cover private
employers with 15 or more employees.13 Thus, only
those private employers with 50 or more employees are
covered concurrently by the FMLA, the ADA and Title
VII.14
State and local government employers are covered by
the ADA and the FMLA, regardless of the number of
employees.15 State and local government employers
are covered by Title VII, however, only if they have
15 or more employees.16
7.
Q:
Are all employees who are protected by Title VII or
the ADA also entitled to leave under the FMLA?
A:
No. Employees protected by Title VII or the ADA must
be independently "eligible" for FMLA leave.
"Eligibility" for FMLA leave depends on several
factors, for example, length of service.17 In
addition, an individual must be employed by an FMLAcovered employer with 50 or more employees to obtain
FMLA leave. See Question 6.
The ADA and the FMLA
FMLA "serious health condition" and ADA "disability"
8.
9.
Q:
What is a "serious health condition" under the FMLA?
A:
An FMLA "serious health condition" is "an illness,
injury, impairment, or physical or mental condition
that involves . . . [i]npatient care . . . or
[c]ontinuing treatment by a health care provider."18
Q:
Is an FMLA "serious health condition" the same as an
ADA "disability"?
A:
No. An FMLA "serious health condition" is not
necessarily an ADA "disability." An ADA "disability"
2/11
App. Def. 198
11/23/11
is an impairment that substantially limits one or
more major life activities, a record of such an
impairment, or being regarded as having such an
impairment.
Some FMLA "serious health conditions" may be ADA
disabilities, for example, most cancers and serious
strokes. Other "serious health conditions" may not
be ADA disabilities, for example, pregnancy or a
routine broken leg or hernia. This is because the
condition is not an impairment (e.g., pregnancy), or
because the impairment is not substantially limiting
(e.g., a routine broken leg or hernia).
In addition, the fact that an individual has a record
of a "serious health condition" does not necessarily
mean that s/he has a record of an ADA disability.
Under the ADA, an individual must have a record of a
substantially limiting impairment in order to be
covered.
Finally, just because someone has a "serious health
condition" also does not mean that the employer
regards him/her as having an ADA disability. To
satisfy this prong of the ADA definition of
"disability," the employer must treat the individual
as having an impairment that substantially limits one
or more major life activities.19
To determine if an individual has an ADA disability,
all pertinent evidence, including any information
about whether the individual has or had a "serious
health condition," should be considered. Under the
FMLA regulations, employers must allow EEOC
investigators to review pertinent FMLA medical
certifications and recertifications, and other
relevant materials, upon request.20
Medical Certifications, Inquiries and Confidentiality
10.
11.
Q:
Is there a conflict between the FMLA provision
allowing employers to ask for certification that an
employee has a serious health condition and ADA
restrictions on disability-related inquiries of
employees?
A:
No. When an employee requests leave under the FMLA
for a serious health condition, employers will not
violate the ADA by asking for the information
specified in the FMLA certification form. The FMLA
form only requests information relating to the
particular serious health condition, as defined in
the FMLA, for which the employee is seeking leave.
An employer is entitled to know why an employee, who
otherwise should be at work, is requesting time off
under the FMLA. If the inquiries are strictly
limited in this fashion, they would be "job-related
and consistent with business necessity" under the
ADA.21
Q:
May an employer keep a single confidential medical
3/11
App. Def. 199
11/23/11
file for each employee, separate from the usual
personnel file, for medical documentation under both
the ADA and the FMLA?
A:
Yes. An employer may keep a single confidential
medical file, separate from the usual personnel file,
containing both FMLA and ADA medical information if
the employer follows the ADA confidentiality
standards. This includes following the ADA
interpretations of those confidentiality exceptions
that are set forth in both the ADA and the FMLA
regulations.22 For example, employers may not give
supervisors and managers unlimited access to the
medical files. However, employers may give
supervisors and managers information concerning
necessary work restrictions and accommodations.23
Comparison of ADA and FMLA Leave
12.
13.
Q:
Does the FMLA's limit of 12 workweeks of leave in a
12- month period mean that the ADA also limits
employees to 12 weeks of leave per year?
A:
No. The FMLA does not mean that more than 12 weeks
of unpaid leave automatically imposes an undue
hardship for purposes of the ADA. An otherwise
qualified individual with a disability is entitled to
more than 12 weeks of unpaid leave as a reasonable
accommodation if the additional leave would not
impose an undue hardship on the operation of the
employer's business. To evaluate whether additional
leave would impose an undue hardship, the employer
may consider the impact on its operations caused by
the employee's initial 12-week absence, along with
the undue hardship factors specified in the ADA. See
29 C.F.R. § 1630.2(p).
Q:
How do the ADA and the FMLA requirements compare
regarding intermittent or occasional leave?
A:
Under the ADA, a qualified individual with a
disability may work part-time in his/her current
position, or occasionally take time off, as a
reasonable accommodation if it would not impose an
undue hardship on the employer. If (or when) reduced
hours create an undue hardship in the current
position, the employer must see if there is a vacant,
equivalent position for which the employee is
qualified and to which the employee can be reassigned
without undue hardship while working a reduced
schedule. If an equivalent position is not
available, the employer must look for a vacant
position at a lower level for which the employee is
qualified. Continued accommodation is not required
if a vacant position at a lower level is also
unavailable.24
The ADA does not prohibit an employer and an employee
from agreeing on another mutually acceptable
accommodation. For example, an employer and employee
may agree to a transfer, on either a temporary or a
4/11
App. Def. 200
11/23/11
permanent basis, if both parties believe that such a
transfer is preferable to accommodating the employee
in his/her current position.
Under the FMLA, an "eligible" employee may take leave
intermittently or on a part-time basis25 for his or
her own "serious health condition" when medically
necessary for treatment or recovery, until s/he has
used up the equivalent of 12 workweeks in a 12-month
period.26 When such leave is foreseeable based on
planned medical treatment, an employer may require
the employee to temporarily transfer (for the
duration of the leave) to an available alternative
position for which the employee is qualified and
which better suits his/her reduced hours.27
14.
Q:
What are employees' reinstatement rights under the
ADA and the FMLA?
A:
Under the ADA, the employee is entitled to return to
the same job unless the employer demonstrates that
holding the job open would impose an undue hardship.
In some instances, an employee may request more leave under
the ADA even after the employer has communicated that it
cannot hold the employee's job open any longer (i.e., there
is undue hardship). In this situation, the ADA-covered
employer must see if it has a vacant, equivalent position
for which the employee is qualified and to which the
employee can be reassigned without undue hardship to
continue his/her leave. If an equivalent position is not
available, the employer must look for a vacant position at
a lower level. Continued accommodation is not required if
a vacant position at a lower level is also unavailable.28
In other instances, an employer may hold the original
position open, and the employee may want to return to work,
but may be unable to perform an essential function of the
original position even with reasonable accommodation.
Under the ADA, the employer must then consider
reassignment, first to a vacant equivalent position for
which the individual is qualified and, if one is
unavailable, to a vacant position at a lower level.
Further accommodation is not required if a vacant position
at a lower level is also unavailable.
Under the FMLA, an employee is entitled to return to the
same position or to an equivalent position.29 However, if
an employee is unable to perform an essential function of
the same or equivalent position because of a physical or
mental condition, the FMLA does not require the employer to
reinstate the employee into another job.30
15.
Q:
Do the ADA and the FMLA require an employer to continue an
employee's health insurance coverage during medical leave?
A:
Under the ADA, an employer must continue health insurance
coverage for an employee taking leave or working part- time
only if the employer also provides coverage for other
employees in the same leave or part-time status. The
coverage must be on the same terms normally provided to
5/11
App. Def. 201
11/23/11
those in the same leave or part-time status.
Under the FMLA, an employer always must maintain the
employee's existing level of coverage (including family or
dependent coverage) under a group health plan during the
period of FMLA leave, provided the employee pays his or her
share of the premiums.31 An employer may not discriminate
against an employee using FMLA leave, and therefore must
also provide such an employee with the same benefits (e.g.,
life or disability insurance) normally provided to an
employee in the same leave or part-time status.32
ADA Compliance When the FMLA Also Applies
16.
17.
18.
Q:
If an individual requests time off for medical treatment,
should the employer treat this as a request for FMLA leave
and ADA reasonable accommodation?
A:
If an employee requests time off for a reason related or
possibly related to a disability (e.g., "I need six weeks
off to get treatment for a back problem"), the employer
should consider this a request for ADA reasonable
accommodation as well as FMLA leave. The employer may
require FMLA certification33 and may make additional
disability-related inquiries if necessary to decide whether
the employee is entitled to reasonable accommodation
because s/he also has a covered disability. However, if
the employee states that s/he only wants to invoke rights
under the FMLA, the employer should not make additional
inquiries related to ADA coverage.
Q:
When both the ADA and the FMLA apply, how should the
employer determine which terms and conditions govern the
employee's initial 12 weeks of medical leave?
A:
Under the FMLA rule, an employer must provide leave under
whichever statutory provision provides the greater rights
to employees.34 For examples of how this principle is
applied, see the FMLA rule at §§ 825.702(b)-(e).
Q:
As an alternative to a leave of absence, may an employer
offer an effective reasonable accommodation that will
enable an employee to continue working?
A:
An employer may offer an employee a reasonable
accommodation other than the leave s/he requested under the
ADA, as long as it is effective.35 For example, an
employer may offer an assistive device, an opportunity to
work reduced hours in the employee's current job, or a
temporary assignment to another job, if these are effective
accommodations.
However, if the individual is "eligible" for leave under
the FMLA and has a serious health condition that prevents
him/her from performing an essential job function, s/he has
the right to take a leave of absence of up to 12 workweeks
in 12 months, even if s/he could continue working with an
effective reasonable accommodation.36 While the FMLA does
not prevent an employee from accepting an alternative to
leave, the acceptance must be voluntary and uncoerced.37
6/11
App. Def. 202
11/23/11
The ADA and Family Leave
19.
Q:
Does the ADA require an employer to give an employee
time off to care for a spouse, son, daughter, parent or
other individual with a disability?
A:
The ADA's reasonable accommodation obligation does not
require a covered employer to give an employee time off to
care for a spouse, son, daughter, parent or other
individual with a disability with whom the employee has a
relationship.38 However, an employer would be required to
provide leave on the same terms as it normally provides
leave to employees who need to care for someone who is
ill.39
Title VII and the FMLA
Leave for Pregnancy, Childbirth and Related Conditions
20.
Q:
Under Title VII, what rights do women have to take leave
for pregnancy, childbirth and related conditions?
A:
If an employer offers temporary or short-term disability
leave, Title VII requires the employer to treat pregnancy
and related conditions the same as non-pregnancy
conditions.40
For example, if an employer provides up to 8 weeks paid
leave for temporary medical conditions, the employer must
provide up to 8 weeks paid leave for pregnancy or related
conditions.
21.
Q:
Can a leave policy that complies with the FMLA violate
Title VII?
A:
Yes. An employee is protected by anti-discrimination laws
such as Title VII regardless of how long s/he has been on
the job, but an employee is not eligible for FMLA leave
until s/he has been employed for 12 months. Thus, an
employer policy that denies pregnancy leave during the
first year of employment, but provides leave for other
medical conditions, would discriminate against pregnant
women in violation of Title VII. Additionally, a neutral
policy that prohibits any employee from taking sick leave
or short-term disability leave during the first year of
employment could have a disparate impact on women and thus
violate Title VII.
Title VII and Family Leave
22.
Q:
Does Title VII require covered employers to give employees
leave to care for an ill child or family member?
A:
Title VII in itself does not require employers to give
employees leave to care for an ill child or family member.
However, Title VII prohibits covered employers from
discriminating on the basis of race, color, religion, sex,
or national origin when they administer family leave.
For example, if an employer allowed a woman but not a man
to take 12 weeks of leave to care for a newly-adopted or
7/11
App. Def. 203
11/23/11
placed child, the man would have a Title VII cause of
action because the employer administered family leave in a
discriminatory way based on gender.
As another example, if an employer allowed a woman to take
3 weeks of childcare leave in addition to leave necessary
to recuperate from childbirth, but declined to permit a man
to take 3 weeks of childcare leave, the man would have a
Title VII cause of action because the employer administered
family leave in a discriminatory way based on gender.
Referral of Individuals with FMLA Questions or Complaints
23.
Q:
Who should be contacted for information about the FMLA or
to file FMLA complaints?
A:
For additional information about the FMLA, or to file an
FMLA complaint, individuals should contact the nearest
office of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor. The Wage and
Hour Division is listed in most telephone directories under
U.S. Government, Department of Labor.
For further information, contact the Office of Legal Counsel's
Attorney of the Day at 202-663-4691.
This fact sheet is available upon request in alternative formats.
Write or call EEOC's Office of Communications and Legislative Affairs,
1801 L Street, N.W., Washington, D.C. 20507, (202) 663- 4900,
TDD (202) 663-4494.
The purpose of this fact sheet is to provide technical assistance to
individuals interested in the relationship between the ADA, Title VII,
and the FMLA. It is not a formal Commission policy document.
1.
0
References to the FMLA are to Titles I and IV of the
Family and Medical Leave Act of 1993.
2.
0
References to the ADA are to Title I of the Americans
with Disabilities Act of 1990, as amended.
3.
0
References to Title VII are to Title VII of the Civil
Rights Act of 1964, as amended.
4.
0
Under the ADA, unpaid medical leave is a reasonable
accommodation and must be provided to an otherwise qualified
individual with a disability unless (or until) it imposes an undue
hardship on the operation of the employer's business. See
29 C.F.R. pt. 1630 app. § 1630.2(o). No set amount of leave is
required as a reasonable accommodation under the ADA.
5.
0
If a collective bargaining agreement was in effect on
August 5, 1993, the FMLA did not become effective for employees
covered by the agreement until February 5, 1994, or the date the
agreement expired, whichever was earlier. 29 C.F.R. § 825.102(a).
6.
0
29 C.F.R. Part 825, published at 60 Fed. Reg. 2180
(January 6, 1995), as amended at 60 Fed. Reg. 6658 (February 3, 1995)
8/11
App. Def. 204
11/23/11
and 60 Fed. Reg. 16382 (March 30, 1995).
While the text of this document stands on its own, FMLA
regulatory citations are provided in footnotes for those readers who
need to obtain a more detailed understanding of certain FMLA
provisions.
7.
0
See footnote 17 below for the FMLA definition of
"eligible" employee.
8.
0
Leave for (1) and (2) above must be concluded within 12
months of the birth or placement, unless state law or the employer
allows a longer leave period. 29 C.F.R. § 825.201.
9.
0
29 C.F.R. § 825.200(a). For purposes of this provision,
the FMLA rule incorporates by reference the ADA definition of
"essential functions." Id. at § 825.115. See question 8 for a
discussion of "serious health condition."
10.
0
Id. at § 825.209.
11.
0
Id. at § 825.214.
12.
0
Id. at § 825.104.
13.
VII).
0
42 U.S.C. § 12111(5)(A)(ADA); 42 U.S.C. § 2000e(b)(Title
14.
0
Note that the FMLA has special requirements for public
and private elementary and secondary schools, due to the unique nature
of education. For purposes of coverage, public and private elementary
and secondary schools are covered by the FMLA regardless of the number
of employees. 29 C.F.R. §§ 825.104(a), 825.600. Thus, any elementary
or secondary school covered by the ADA and Title VII is also covered
by the FMLA.
15.
0
29 C.F.R. §§ 825.104(a), 825.108 (FMLA);
28 C.F.R. § 35.140 (ADA Title II covers all public employers without
regard to the number of employees, and ADA Title I standards apply by
incorporation); 29 C.F.R. § 1630.2(e)(ADA Title I applies to all
employers with 15 or more employees, including state and local
governments).
16.
0
42 U.S.C. § 2000e(b)(definition of "employer").
17.
0
Employees are "eligible" for FMLA leave if they: (1)
have been employed by a "covered" employer for at least 12 months,
which need not be consecutive; (2) had at least 1,250 hours of service
during the 12-month period immediately before the leave started; and
(3) are employed at a worksite where the employer employs 50 or more
employees within 75 miles. 29 C.F.R. § 825.110.
An "eligible" employee must meet additional FMLA requirements in
order to take medical leave because of his/her own "serious health
condition." A health care provider must find that the employee is
unable to work at all, or is unable to perform any one of the
essential functions of his/her job, due to the "serious health
condition." 29 C.F.R. §§ 825.115, 825.200(a)(4). The FMLA rule
incorporates the ADA definition of "essential functions" here. Id.
at § 825.115.
9/11
App. Def. 205
11/23/11
18.
0
29 C.F.R. §§ 825.114(a)(1),(2). The FMLA regulations
explain that "inpatient care" means at least an overnight stay at a
health care facility, and includes any related period of incapacity
or subsequent treatment relating back to the inpatient care. Id. at
§ 825.114(a)(1). "Continuing treatment by a health care provider"
covers five situations: (1) incapacity of more than three consecutive
calendar days that involves either (a) treatment two or more times by
a health care provider (or under the direction or orders of a health
care provider), or (b) treatment by a health care provider on at least
one occasion resulting in a regimen of continuing treatment under the
supervision of the health care provider; (2) any period of incapacity
due to pregnancy, or for prenatal care; (3) any period of incapacity
or treatment due to a chronic serious health condition requiring
periodic visits for treatment, including episodic conditions such as
asthma, diabetes, and epilepsy; (4) a period of incapacity which is
permanent or long-term due to a condition for which treatment may not
be effective, although the individual is under the continuing
supervision of a health care provider (e.g., Alzheimer's, severe
stroke, or the terminal stages of a disease); and (5) any period of
absence to receive multiple treatments from a health care provider
(or on orders or referral from a health care provider) for restorative
surgery or for a condition that would likely result in an absence of
more than three consecutive calendar days without treatment (e.g.,
cancer (chemotherapy, radiation), severe arthritis (physical therapy),
kidney disease (dialysis)). Id. at § 825.114 (a)(2).
19.
0
For a detailed discussion of the ADA definition of
disability, see Compliance Manual Section 902, Definition of the Term
"Disability."
20.
0
See 29 C.F.R. § 825.500(g)(3).
21.
0
See 29 C.F.R. § 1630.14(c)(ADA).
22.
0
There is also an exception to the applicable
confidentiality requirements for government officials investigating
compliance with the FMLA, pursuant to § 825.500(g)(3) of the FMLA
regulations.
23.
0
29 C.F.R. § 1630.14(c)(1) (ADA); 29 C.F.R. § 825.500(g)
(FMLA). See generally "ADA Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations" at 21-23
(discussion of confidentiality)(October 10, 1995).
24.
0
42 U.S.C. § 12111(9)(B)(reassignment to a vacant
position is a reasonable accommodation); 29 C.F.R. § 1630.2(o)(2)(ii)
(same); "A Technical Assistance Manual on the Employment Provisions
(Title I) of the Americans with Disabilities Act," at III-24 to III-25
(discussing reassignment to a vacant position).
25.
0
"Intermittent leave" is FMLA leave taken in separate
blocks of time due to a single reason, for example pregnancy, when
leave may be used intermittently for prenatal care examinations or
episodes of severe morning sickness. FMLA leave also may be used to
change an employee's schedule for a period of time, normally from
full-time to part-time. 29 C.F.R. § 825.203.
26.
0
29 C.F.R. § 825.203(c).
27.
0
Id. at § 825.204(a); see also special rules governing
intermittent leave for instructional employees at §§ 825.601, 825.602
10/11
App. Def. 206
11/23/11
(accounting for factors such as the importance of teacher continuity
and summer vacations).
Note that a qualified individual with a disability who is using
FMLA leave to work reduced hours, and/or has been temporarily
transferred into another job under the FMLA, may also need a
reasonable accommodation (e.g., special equipment) to perform an
essential function of the job. See 29 C.F.R. § 825.204(b).
28.
0
See supra note 24 (reassignment as a reasonable
accommodation).
29.
0
29 C.F.R. § 825.214. As an exception to the FMLA's
general guarantee of reinstatement, an employer may deny reinstatement
(but may not deny leave) to a "key" employee if restoration would
cause "substantial and grievous economic injury," provided certain
conditions are met. 29 C.F.R. § 825.216(c). A "key" employee is "a
salaried FMLA-eligible employee who is among the highest paid 10
percent of all the employees employed by the employer within 75 miles
of the employee's worksite." Id. at § 825.217. The FMLA's
"substantial and grievous economic injury" standard is different from
and more stringent than the "undue hardship" test under the ADA.
Id. at § 825.218(d).
30.
0
29 C.F.R. § 825.214(b).
31.
0
Id. at §§ 825.209, 825.210.
32.
0
29 C.F.R. § 825.220(c).
33.
0
For a discussion of when an employee must provide
medical certification to support FMLA leave, see 29 C.F.R. § 825.305.
34.
0
29 C.F.R. § 825.702(a).
35.
0
29 C.F.R. pt. 1630 app. § 1630.9.
36.
0
29 C.F.R. § 825.702(d)(1).
37.
0
29 C.F.R. § 825.220(d).
38.
0
The FMLA, in contrast, requires an employer to grant
leave to an eligible employee to care for the employee's spouse, son,
daughter, or parent with a serious health condition.
29 C.F.R. § 825.112(a)(3). The FMLA rule defines "spouse," "son,"
"daughter," and "parent" at 29 C.F.R. § 825.113.
39.
0
29 C.F.R. § 1630.8 (relationship or association with an
individual with a disability).
40.
0
See 29 C.F.R. § 1604.10(b). See generally 29 C.F.R.
pt. 1604 app. (Questions and Answers on the Pregnancy Discrimination
Act).
This page was last modified on July 6, 2000.
Return to Home Page
11/11
App. Def. 207
App. Def. 208
App. Def. 209
Page 1
33 of 86 DOCUMENTS
Texas Rules
Copyright (c) 2011 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** This document is current through October 31, 2011 ***
*** Federal case annotations: September 6, 2011 postings on Lexis ***
*** State case annotations: August 27, 2011 postings on Lexis ***
STATE RULES
TEXAS RULES OF APPELLATE PROCEDURE
SECTION TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS
Tex. R. App. P. Rule 33 (2011)
NOTICE: The case notes for this document have been split into two parts. This is Part 1.1 OF 2 PARTS
Rule 33 Preservation of Appellate Complaints
33.1 Preservation; How Shown.
(a) In General. --As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context;
and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of
Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
(b) Ruling by Operation of Law. --In a civil case, the overruling by operation of law of a motion for new trial or
a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking
evidence was necessary to properly present the complaint in the trial court.
(c) Formal Exception and Separate Order Not Required. --Neither a formal exception to a trial court ruling or
order nor a signed, separate order is required to preserve a complaint for appeal.
(d) Sufficiency of Evidence Complaints in Nonjury Cases. --In a nonjury case, a complaint regarding the legal or
factual insufficiency of the evidence - including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact - may be made for the first time on appeal in the complaining party's brief.
33.2 Formal Bills of Exception. --To complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception.
App. Def. 210
(a) Form. --No particular form of words is required in a bill of exception. But the objection to the court's ruling
or action, and the ruling complained of, must be stated with sufficient specificity to make the trial court aware of the
complaint.
(b) Evidence. --When the appellate record contains the evidence needed to explain a bill of exception, the bill itself need not repeat the evidence, and a party may attach and incorporate a transcription of the evidence certified by the
court reporter.
(c) Procedure.
(1) The complaining party must first present a formal bill of exception to the trial court.
(2) If the parties agree on the contents of the bill of exception, the judge must sign the bill and file it with the
trial court clerk. If the parties do not agree on the contents of the bill, the trial judge must - after notice and hearing - do
one of the following things:
(A) sign the bill of exception and file it with the trial court clerk if the judge finds that it is correct;
(B) suggest to the complaining party those corrections to the bill that the judge believes are necessary to make
it accurately reflect the proceedings in the trial court, and if the party agrees to the corrections, have the corrections
made, sign the bill, and file it with the trial court clerk; or
(C) if the complaining party will not agree to the corrections suggested by the judge, return the bill to the
complaining party with the judge's refusal written on it, and prepare, sign, and file with the trial court clerk such bill as
will, in the judge's opinion, accurately reflect the proceedings in the trial court.
(3) If the complaining party is dissatisfied with the bill of exception filed by the judge under (2)(C), the party
may file with the trial court clerk the bill that was rejected by the judge. That party must also file the affidavits of at
least three people who observed the matter to which the bill of exception is addressed. The affidavits must attest to the
correctness of the bill as presented by the party. The matters contained in that bill of exception may be controverted and
maintained by additional affidavits filed by any party within ten days after the filing of that bill. The truth of the bill of
exception will be determined by the appellate court.
(d) Conflict. --If a formal bill of exception conflicts with the reporter's record, the bill controls.
(e) Time to File.
(1) Civil Cases. --In a civil case, a formal bill of exception must be filed no later than 30 days after the filing
party's notice of appeal is filed.
(2) Criminal Cases. --In a criminal case, a formal bill of exception must be filed:
(A) no later than 60 days after the trial court pronounces or suspends sentence in open court; or
(B) if a motion for new trial has been timely filed, no later than 90 days after the trial court pronounces or
suspends sentence in open court.
(3) Extension of Time. --The appellate court may extend the time to file a formal bill of exception if, within 15
days after the deadline for filing the bill, the party files in the appellate court a motion complying with Rule 10.5(b).
(f) Inclusion in Clerk's Record. --When filed, a formal bill of exception should be included in the appellate record.
NOTES:
Comment to 1997 change. This is former Rule 52. Subdivision 33.1 is rewritten. Former Rule 52(b), regarding offers of
proof, is omitted as unnecessary. See Tex. R. Civ. Evid. 103; Tex. R. Crim. Evid. 103. Subdivision 33.2 is also rewritten and the procedure is more definitely stated. Former Rule 52(d), regarding motions for new trial, is omitted as unnecessary. See Tex. R. Civ. P. 324(a) & (b).
Comment to 2002 change. The last sentence of former Rule 52(d) of the Rules of Appellate Procedure has been reinstated in substance.
App. Def. 211
Page 1
13 of 22 DOCUMENTS
Texas Rules
STATE RULES
TEXAS RULES OF APPELLATE PROCEDURE
SECTION TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND ORDERS
Tex. R. App. P. Rule 38 (2011)
Rule 38 Requisites of Briefs
38.1 Appellant's Brief. --The appellant's brief must, under appropriate headings and in the order here indicated, contain the following:
(a) Identity of Parties and Counsel. --The brief must give a complete list of all parties to the trial court's judgment or order appealed from, and the names and addresses of all trial and appellate counsel, except as otherwise provided in Rule 9.8.
(b) Table of Contents. --The brief must have a table of contents with references to the pages of the brief. The table of contents must indicate the subject matter of each issue or point, or group of issues or points.
(c) Index of Authorities. --The brief must have an index of authorities arranged alphabetically and indicating the
pages of the brief where the authorities are cited.
(d) Statement of the Case. --The brief must state concisely the nature of the case (e.g., whether it is a suit for
damages, on a note, or involving a murder prosecution), the course of proceedings, and the trial court's disposition of
the case. The statement should be supported by record references, should seldom exceed one-half page, and should not
discuss the facts.
(e) Any Statement Regarding Oral Argument. --The brief may include a statement explaining why oral argument
should or should not be permitted. Any such statement must not exceed one page and should address how the court's
decisional process would, or would not, be aided by oral argument. As required by Rule 39.7, any party requesting oral
argument must note that request on the front cover of the party's brief.
(f) Issues Presented. --The brief must state concisely all issues or points presented for review. The statement of
an issue or point will be treated as covering every subsidiary question that is fairly included.
(g) Statement of Facts. --The brief must state concisely and without argument the facts pertinent to the issues or
points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them. The
statement must be supported by record references.
(h) Summary of the Argument. --The brief must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. This summary must not merely repeat the issues or points presented for review.
(i) Argument. --The brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.
App. Def. 212
Page 2
Tex. R. App. P. Rule 38
(j) Prayer. --The brief must contain a short conclusion that clearly states the nature of the relief sought.
(k) Appendix in Civil Cases.
(1) Necessary Contents. --Unless voluminous or impracticable, the appendix must contain a copy of:
(A) the trial court's judgment or other appealable order from which relief is sought;
(B) the jury charge and verdict, if any, or the trial court's findings of fact and conclusions of law, if any; and
(C) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case
law) on which the argument is based, and the text of any contract or other document that is central to the argument.
(2) Optional Contents. --The appendix may contain any other item pertinent to the issues or points presented
for review, including copies or excerpts of relevant court opinions, laws, documents on which the suit was based, pleadings, excerpts from the reporter's record, and similar material. Items should not be included in the appendix to attempt to
avoid the page limits for the brief.
38.2 Appellee's Brief.
(a) Form of Brief.
(1) An appellee's brief must conform to the requirements of Rule 38.1, except that:
(A) the list of parties and counsel is not required unless necessary to supplement or correct the appellant's list;
(B) the appellee's brief need not include a statement of the case, a statement of the issues presented, or a
statement of facts, unless the appellee is dissatisfied with that portion of the appellant's brief; and
(C) the appendix to the appellee's brief need not contain any item already contained in an appendix filed by
the appellant.
(2) When practicable, the appellee's brief should respond to the appellant's issues or points in the order the appellant presented those issues or points.
(b) Cross-Points.
(1) Judgment Notwithstanding the Verdict. --When the trial court renders judgment notwithstanding the verdict
on one or more questions, the appellee must bring forward by cross-point any issue or point that would have vitiated the
verdict or that would have prevented an affirmance of the judgment if the trial court had rendered judgment on the verdict. Failure to bring forward by cross-point an issue or point that would vitiate the verdict or prevent an affirmance of
the judgment waives that complaint. Included in this requirement is a point that:
(A) the verdict or one or more jury findings have insufficient evidentiary support or are against the overwhelming preponderance of the evidence as a matter of fact; or
(B) the verdict should be set aside because of improper argument of counsel.
(2) When Evidentiary Hearing Needed. --The appellate court must remand a case to the trial court to take evidence if:
(A) the appellate court has sustained a point raised by the appellant; and
(B) the appellee raised a cross-point that requires the taking of additional evidence.
38.3 Reply Brief. --The appellant may file a reply brief addressing any matter in the appellee's brief. However, the
appellate court may consider and decide the case before a reply brief is filed.
38.4 Length of Briefs. --An appellant's brief or appellee's brief must be no longer than 50 pages, exclusive of the
pages containing the identity of parties and counsel, any statement regarding oral argument, the table of contents, the
index of authorities, the statement of the case, the issues presented, the signature, the proof of service, and the appendix.
A reply brief must be no longer than 25 pages, exclusive of the items stated above. But in a civil case, the aggregate
number of pages of all briefs filed by a party must not exceed 90, exclusive of the items stated above. The court may, on
motion, permit a longer brief.
App. Def. 213
Page 3
38.5 Appendix for Cases Recorded Electronically. --In cases where the proceedings were electronically recorded,
the following rules apply:
(a) Appendix.
(1) In General. --At or before the time a party's brief is due, the party must file one copy of an appendix containing a transcription of all portions of the recording that the party considers relevant to the appellate issues or points.
Unless another party objects, the transcription will be presumed accurate.
(2) Repetition Not Required. --A party's appendix need not repeat evidence included in any previously filed
appendix.
(3) Form. --The form of the appendix and transcription must conform to any specifications of the Supreme
Court and Court of Criminal Appeals concerning the form of the reporter's record except that it need not have the reporter's certificate.
(4) Notice. --At the time the appendix is filed, the party must give written notice of the filing to all parties to
the trial court's judgment or order. The notice must specify, by referring to the index numbers in the court recorder's
logs, those parts of the recording that are included in the appendix. The filing party need not serve a copy of the appendix but must make a copy available to all parties for inspection and copying.
(b) Presumptions. --The same presumptions that apply to a partial reporter's record under Rule 34.6(c)(4) apply
to the parties' appendixes. The appellate court need not review any part of the electronic recording.
(c) Supplemental Appendix. --The appellate court may direct or allow a party to file a supplemental appendix
containing a transcription of additional portions of the recording.
(d) Inability to Pay. --A party who cannot pay the cost of an appendix must file the affidavit provided for by
Rule 20. The party must also state in the affidavit or a supplemental affidavit that the party has neither the access to the
equipment necessary nor the skill necessary to prepare the appendix. If a contest to the affidavit is not sustained by written order, the court recorder must transcribe or have transcribed those portions of the recording that the party designates
and must file the transcription as that party's appendix, along with all exhibits.
(e) Inaccuracies.
(1) Correction by Agreement. --The parties may agree to correct an inaccuracy in the transcription of the recording.
(2) Correction by Appellate or Trial Court. --If the parties dispute whether an electronic recording or transcription accurately discloses what occurred in the trial court but cannot agree on corrections, the appellate court may:
(A) settle the dispute by reviewing the recording; or
(B) submit the dispute to the trial court, which must - after notice and hearing - settle the dispute and ensure
that the recording or transcription is made to conform to what occurred in the trial court.
(f) Costs. --The actual expense of preparing the appendixes or the amount prescribed for official reporters,
whichever is less, is taxed as costs. The appellate court may disallow the cost of any portion of the appendixes that it
considers surplusage or that does not conform to any specifications prescribed by the Supreme Court or Court of Criminal Appeals.
38.6 Time to File Briefs.
(a) Appellant's Filing Date. --Except in a habeas corpus or bail appeal, which is governed by Rule 31, an appellant must file a brief within 30 days - 20 days in an accelerated appeal - after the later of:
(1) the date the clerk's record was filed; or
(2) the date the reporter's record was filed.
(b) Appellee's Filing Date. --The appellee's brief must be filed within 30 days - 20 days in an accelerated appeal
- after the date the appellant's brief was filed. In a civil case, if the appellant has not filed a brief as provided in this rule,
an appellee may file a brief within 30 days - 20 days in an accelerated appeal - after the date the appellant's brief was
due.
App. Def. 214
Page 4
(c) Filing Date for Reply Brief. --A reply brief, if any, must be filed within 20 days after the date the appellee's
brief was filed.
(d) Modifications of Filing Time. --On motion complying with Rule 10.5(b), the appellate court may extend the
time for filing a brief and may postpone submission of the case. A motion to extend the time to file a brief may be filed
before or after the date the brief is due. The court may also, in the interests of justice, shorten the time for filing briefs
and for submission of the case.
38.7 Amendment or Supplementation. --A brief may be amended or supplemented whenever justice requires, on
whatever reasonable terms the court may prescribe.
38.8 Failure of Appellant to File Brief.
(a) Civil Cases. --If an appellant fails to timely file a brief, the appellate court may:
(1) dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant's failure to timely file a brief;
(2) decline to dismiss the appeal and give further direction to the case as it considers proper; or
(3) if an appellee's brief is filed, the court may regard that brief as correctly presenting the case and may affirm
the trial court's judgment upon that brief without examining the record.
(b) Criminal Cases.
(1) Effect. --An appellant's failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs.
(2) Notice. --If the appellant's brief is not timely filed, the appellate clerk must notify counsel for the parties
and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court
must order the trial court to immediately conduct a hearing to determine whether the appellant desires to prosecute his
appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to
make appropriate findings and recommendations.
(3) Hearing. --In accordance with (2), the trial court must conduct any necessary hearings, make appropriate
findings and recommendations, and have a record of the proceedings prepared, which record - including any order and
findings - must be sent to the appellate court.
(4) Appellate Court Action. --Based on the trial court's record, the appellate court may act appropriately to ensure that the appellant's rights are protected, including initiating contempt proceedings against appellant's counsel. If the
trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but
has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as
justice may require.
38.9 Briefing Rules to be Construed Liberally. --Because briefs are meant to acquaint the court with the issues in a
case and to present argument that will enable the court to decide the case, substantial compliance with this rule is sufficient, subject to the following.
(a) Formal Defects. --If the court determines that this rule has been flagrantly violated, it may require a brief to
be amended, supplemented, or redrawn. If another brief that does not comply with this rule is filed, the court may strike
the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief.
(b) Substantive Defects. --If the court determines, either before for after submission, that the case has not been
properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the court may
postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of
the case.
HISTORY: Amended by Texas Supreme Court, Misc. Docket No. 08-9115 and Texas Court of Criminal Appeals,
Misc. Docket No. 08-103, effective September 1, 2008.
NOTES:
App. Def. 215
Page 1
11 of 33 DOCUMENTS
LexisNexis (R) Texas Annotated Statutes
Copyright © 2011 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group
*** This document is current through the 2011 First Called Session ***
*** Federal case annotations: July 14, 2011 postings on Lexis ***
*** State case annotations: July 2, 2011 postings on Lexis ***
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE C. JUDGMENTS
CHAPTER 38. ATTORNEY'S FEES
GO TO TEXAS CODE ARCHIVE DIRECTORY
Tex. Civ. Prac. & Rem. Code § 38.001 (2011)
§ 38.001. Recovery of Attorney's Fees
A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a
valid claim and costs, if the claim is for:
(1) rendered services;
(2) performed labor;
(3) furnished material;
(4) freight or express overcharges;
(5) lost or damaged freight or express;
(6) killed or injured stock;
(7) a sworn account; or
(8) an oral or written contract.
HISTORY: Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985.
NOTES:
Legislative Note. -* See Texas Litigation Guide, Ch. 22, Attorney's Fees; Texas Torts and Remedies, Ch. 105, Attorney's Fees and
Costs.
LexisNexis (R) Notes:
App. Def. 216
Page 1
2 of 67 DOCUMENTS
LABOR CODE
TITLE 2. PROTECTION OF LABORERS
SUBTITLE A. EMPLOYMENT DISCRIMINATION
CHAPTER 21. EMPLOYMENT DISCRIMINATION
SUBCHAPTER A. GENERAL PROVISIONS
Tex. Lab. Code § 21.001 (2011)
§ 21.001. Purposes
The general purposes of this chapter are to:
(1) provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent
amendments (42 U.S.C. Section 2000e et seq.);
(2) identify and create an authority that meets the criteria under 42 U.S.C. Section 2000e-5(c) and 29 U.S.C. Section 633;
(3) provide for the execution of the policies embodied in Title I of the Americans with Disabilities Act of 1990
and its subsequent amendments (42 U.S.C. Section 12101 et seq.);
(4) secure for persons in this state, including persons with disabilities, freedom from discrimination in certain
employment transactions, in order to protect their personal dignity;
(5) make available to the state the full productive capacities of persons in this state;
(6) avoid domestic strife and unrest in this state;
(7) preserve the public safety, health, and general welfare; and
(8) promote the interests, rights, and privileges of persons in this state.
HISTORY: Enacted by Acts 1993, 73rd Leg., ch. 269 (H.B. 752), § 1, effective September 1, 1993; am. Acts 1995,
74th Leg., ch. 76 (S.B. 959), § 9.01(a), effective September 1, 1995.
NOTES:
Revisor's Notes. --
App. Def. 217
Page 1
11 of 67 DOCUMENTS
LABOR CODE
TITLE 2. PROTECTION OF LABORERS
SUBTITLE A. EMPLOYMENT DISCRIMINATION
CHAPTER 21. EMPLOYMENT DISCRIMINATION
SUBCHAPTER B. UNLAWFUL EMPLOYMENT PRACTICES
Tex. Lab. Code § 21.051 (2011)
§ 21.051. Discrimination by Employer
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national
origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an
individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or
tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an
employee.
HISTORY: Enacted by Acts 1993, 73rd Leg., ch. 269 (H.B. 752), § 1, effective September 1, 1993.
CASE NOTES
1. Where a former employee asserted a discrimination claim under the Texas Commission on Human Rights Act against
a school district, the employee was not required to exhaust administrative remedies under the district's grievance policy
and the education code and subject matter jurisdiction because, under Tex. Educ. Code Ann. § 7.057, the employee's
discrimination claim did not pertain to the administration of school laws. Austin Indep. Sch. Dist. v. Lowery, 212 S.W.3d
827, 2006 Tex. App. LEXIS 10325 (Tex. App. Austin 2006).
App. Def. 218
Page 1
1 of 3 DOCUMENTS
PROPERTY CODE
TITLE 8. LANDLORD AND TENANT
CHAPTER 92. RESIDENTIAL TENANCIES
Tex. Prop. Code § 92.001 (2011)
§ 92.001. Definitions
Except as otherwise provided by this chapter, in this chapter:
(1) "Dwelling" means one or more rooms rented for use as a permanent residence under a single lease to one or
more tenants.
(2) "Landlord" means the owner, lessor, or sublessor of a dwelling, but does not include a manager or agent of the
landlord unless the manager or agent purports to be the owner, lessor, or sublessor in an oral or written lease.
(3) "Lease" means any written or oral agreement between a landlord and tenant that establishes or modifies the
terms, conditions, rules, or other provisions regarding the use and occupancy of a dwelling.
(4) "Normal wear and tear" means deterioration that results from the intended use of a dwelling, including, for the
purposes of Subchapters B and D, breakage or malfunction due to age or deteriorated condition, but the term does not
include deterioration that results from negligence, carelessness, accident, or abuse of the premises, equipment, or chattels by the tenant, by a member of the tenant's household, or by a guest or invitee of the tenant.
(5) "Premises" means a tenant's rental unit, any area or facility the lease authorizes the tenant to use, and the appurtenances, grounds, and facilities held out for the use of tenants generally.
(6) "Tenant" means a person who is authorized by a lease to occupy a dwelling to the exclusion of others and, for
the purposes of Subchapters D, E, and F, who is obligated under the lease to pay rent.
HISTORY: Enacted by Acts 1983, 68th Leg., ch. 576 (S.B. 748), § 1, effective January 1, 1984; am. Acts 1993, 73rd
Leg., ch. 48 (H.B. 1300), § 12, effective September 1, 1993; am. Acts 1993, 73rd Leg., ch. 357 (H.B. 1368), § 1, effective September 1, 1993.
NOTES:
Revisor's Notes. --
App. Def. 219
Page 1
LEXSTAT TEX. PROP. CODE SECTION 92.061
*** Federal case annotations: Jan. 18, 2010 postings on Lexis.com ***
*** State case annotations: April 16, 2010 postings on Lexis.com ***
PROPERTY CODE
SUBCHAPTER B. REPAIR OR CLOSING OF LEASEHOLD
Tex. Prop. Code § 92.061 (2010)
§ 92.061. Effect on Other Rights
The duties of a landlord and the remedies of a tenant under this subchapter are in lieu of existing common law and
other statutory law warranties and duties of landlords for maintenance, repair, security, habitability, and nonretaliation,
and remedies of tenants for a violation of those warranties and duties. Otherwise, this subchapter does not affect any
other right of a landlord or tenant under contract, statutory law, or common law that is consistent with the purposes of
this subchapter or any right a landlord or tenant may have to bring an action for personal injury or property damage under the law of this state. This subchapter does not impose obligations on a landlord or tenant other than those expressly
stated in this subchapter.
NOTES:
Revisor's Notes. -The portion of the source law declaring that the Act does not impose obligations other than those expressed in the Act
is omitted as an unnecessary restatement of a general rule of statutory construction.
CASE NOTES
1. Actual damages pursuant to Tex. Prop. Code Ann. § 92.061 is the difference between the contract rental and the
rental value of the premises in disrepair. Bolin Dev. Corp. v. Indart, 803 S.W.2d 817, 1991 Tex. App. LEXIS 223 (Tex.
App. Houston 14th Dist. 1991).
App. Def. 220
Page 2
Tex. Prop. Code § 92.061
2. Property code was a device allocating duties of reporting and repairing defects to premises and providing remedies
for violation of warranties and duties to repair and maintain property; code did not affect tenant's rights under common
law or other statutes to bring claims for personal injury or property damage where injury resulted from improperly
maintained apartment dwelling. Moreno v. Brittany Square Assocs., L.P., 899 S.W.2d 261, 1995 Tex. App. LEXIS 497
(Tex. App. Houston 14th Dist. 1995).
TREATISES AND ANALYTICAL MATERIALS
1. 3-40 Texas Real Estate Guide § 40.01, TRANSACTIONS: LEASES[sol]LANDLORD AND TENANT, GENERAL
LEASE PROVISIONS, State Statutes, Texas Real Estate Guide.
2. 3-40 Texas Real Estate Guide § 40.23, TRANSACTIONS: LEASES[sol]LANDLORD AND TENANT, GENERAL
LEASE PROVISIONS, Covenants, Texas Real Estate Guide.
3. 3-43 Texas Real Estate Guide § 43.24, TRANSACTIONS: LEASES[sol]LANDLORD AND TENANT, RESIDENTIAL LEASES, Repair of Premises, Texas Real Estate Guide.
4. 5-90 Texas Real Estate Guide § 90.21, LITIGATION: LEASES[sol]LANDLORD AND TENANT, LANDLORD
AND TENANT, Repairs, Texas Real Estate Guide.
5. 5-90 Texas Real Estate Guide § 90.136, LITIGATION: LEASES[sol]LANDLORD AND TENANT, LANDLORD
AND TENANT, Allegation of Violation of Statutory Duty to Repair Residential Unit, Texas Real Estate Guide.
6. 14-221 Dorsaneo, Texas Litigation Guide § 221.12, Pleadings in Commercial Litigation (Chs. 210-242), Deceptive
Practices and Warranties (Chs. 220-223), Warranty of Habitability, Dorsaneo, Texas Litigation Guide.
7. 18-282 Dorsaneo, Texas Litigation Guide § 282.21, Pleadings in Real Estate Litigation (Chs. 250-285), Involvement
of Third Parties (Chs. 280-285), Repairs, Dorsaneo, Texas Litigation Guide.
8. 18-282 Dorsaneo, Texas Litigation Guide § 282.136, Pleadings in Real Estate Litigation (Chs. 250-285), Involvement of Third Parties (Chs. 280-285), Allegation of Violation of Statutory Duty to Repair Residential Unit, Dorsaneo,
Texas Litigation Guide.
9. 1-23 Texas Torts and Remedies § 23.32, TORTS RELATING TO REAL PROPERTY, LANDLORD-TENANT
TORT LIABILITIES, Repair and Closing of Leasehold, Texas Torts and Remedies.
10. 18-81B Texas Transaction Guide--Legal Forms § 81B.01, REAL ESTATE TRANSACTIONS, Leases, State Statutes, Texas Transaction Guide--Legal Forms.
11. 18-81B Texas Transaction Guide--Legal Forms § 81B.23, REAL ESTATE TRANSACTIONS, Leases, Covenants,
Texas Transaction Guide--Legal Forms.
12. 19-81E Texas Transaction Guide--Legal Forms § 81E.24, REAL ESTATE TRANSACTIONS, Leases, Repair of
Premises, Texas Transaction Guide--Legal Forms.
LAW REVIEWS
1. 53 Baylor L. Rev. 687, NOTE: Who Pays the Price for Defective Home Construction? A Note on Buecher v. Centex
Homes, Summer, 2001.
App. Def. 221
Page 3
2. 2 Tex. Wesleyan L. Rev. 279, ARTICLE: NON-ACTOR LIABILITY FOR SEXUAL ASSAULTS IN TEXAS AND
THE EFFECT OF INSURANCE ON RECOVERY, Fall, 1995.
3. 3 SCHOLAR 115, COMMENT: FORGOTTEN VOICES: GENTRIFICATION AND ITS VICTIMS, Fall, 2000.
App. Def. 222
Page 1
2 of 3 DOCUMENTS
PROPERTY CODE
Tex. Prop. Code § 92.0081 (2011)
§ 92.0081. Removal of Property and Exclusion of Residential Tenant
(a) A landlord may not remove a door, window, or attic hatchway cover or a lock, latch, hinge, hinge pin, doorknob,
or other mechanism connected to a door, window, or attic hatchway cover from premises leased to a tenant or remove
furniture, fixtures, or appliances furnished by the landlord from premises leased to a tenant unless the landlord removes
the item for a bona fide repair or replacement. If a landlord removes any of the items listed in this subsection for a bona
fide repair or replacement, the repair or replacement must be promptly performed.
(b) A landlord may not intentionally prevent a tenant from entering the leased premises except by judicial process
unless the exclusion results from:
(1) bona fide repairs, construction, or an emergency;
(2) removing the contents of premises abandoned by a tenant; or
(3) changing the door locks on the door to the tenant's individual unit of a tenant who is delinquent in paying at
least part of the rent.
(c) If a landlord or a landlord's agent changes the door lock of a tenant who is delinquent in paying rent, the landlord or the landlord's agent must place a written notice on the tenant's front door stating:
(1) an on-site location where the tenant may go 24 hours a day to obtain the new key or a telephone number that
is answered 24 hours a day that the tenant may call to have a key delivered within two hours after calling the number;
(2) the fact that the landlord must provide the new key to the tenant at any hour, regardless of whether or not the
tenant pays any of the delinquent rent; and
(3) the amount of rent and other charges for which the tenant is delinquent.
(d) A landlord may not intentionally prevent a tenant from entering the leased premises under Subsection (b)(3)
unless:
(1) the landlord's right to change the locks because of a tenant's failure to timely pay rent is placed in the lease;
(2) the tenant is delinquent in paying all or part of the rent; and
App. Def. 223
Page 2
(3) the landlord has locally mailed not later than the fifth calendar day before the date on which the door locks are
changed or hand-delivered to the tenant or posted on the inside of the main entry door of the tenant's dwelling not later
than the third calendar day before the date on which the door locks are changed a written notice stating:
(A) the earliest date that the landlord proposes to change the door locks;
(B) the amount of rent the tenant must pay to prevent changing of the door locks;
(C) the name and street address of the individual to whom, or the location of the on-site management office at
which, the delinquent rent may be discussed or paid during the landlord's normal business hours; and
(D) in underlined or bold print, the tenant's right to receive a key to the new lock at any hour, regardless of
whether the tenant pays the delinquent rent.
(e) A landlord may not change the locks on the door of a tenant's dwelling under Subsection (b)(3) on a day, or on a
day immediately before a day, on which the landlord or other designated individual is not available, or on which any onsite management office is not open, for the tenant to tender the delinquent rent.
(e-1) A landlord who changes the locks or otherwise prevents a tenant from entering the tenant's individual rental
unit may not change the locks or otherwise prevent a tenant from entering a common area of residential rental property.
(f) A landlord who intentionally prevents a tenant from entering the tenant's dwelling under Subsection (b)(3) must
provide the tenant with a key to the changed lock on the dwelling without regard to whether the tenant pays the delinquent rent.
(g) If a landlord arrives at the dwelling in a timely manner in response to a tenant's telephone call to the number
contained in the notice as described by Subsection (c)(1) and the tenant is not present to receive the key to the changed
lock, the landlord shall leave a notice on the front door of the dwelling stating the time the landlord arrived with the key
and the street address to which the tenant may go to obtain the key during the landlord's normal office hours.
(h) If a landlord violates this section, the tenant may:
(1) either recover possession of the premises or terminate the lease; and
(2) recover from the landlord a civil penalty of one month's rent plus $ 1,000, actual damages, court costs, and
reasonable attorney's fees in an action to recover property damages, actual expenses, or civil penalties, less any delinquent rent or other sums for which the tenant is liable to the landlord.
(i) If a landlord violates Subsection (f), the tenant may recover, in addition to the remedies provided by Subsection
(h), an additional civil penalty of one month's rent.
(j) A provision of a lease that purports to waive a right or to exempt a party from a liability or duty under this section is void.
(k) A landlord may not change the locks on the door of a tenant's dwelling under Subsection (b)(3):
(1) when the tenant or any other legal occupant is in the dwelling; or
(2) more than once during a rental payment period.
(l) This section does not affect the ability of a landlord to pursue other available remedies, including the remedies
provided by Chapter 24.
HISTORY: Enacted by Acts 1995, 74th Leg., ch. 869 (S.B. 1334), § 1, effective January 1, 1996 (renumbered from
Sec. 92.008(b) to (f); Enacted by Acts 1995, 74th Leg., ch. 952 (H.B. 2803), § 1, effective September 1, 1995 (renumbered from Sec. 92.008 (b) to (f); am. Acts 2007, 80th Leg., ch. 917 (H.B. 3101), § 1, effective January 1, 2008.
NOTES:
Applicability. -Acts 2007, 80th Leg., ch. 917 (H.B. 3101), § 11 provides: "This Act applies only to a lease agreement or a renewal of a
lease agreement entered into, or a rental application received by an applicant, on or after the effective date of this Act
[January 1, 2008]. A lease agreement or a renewal of a lease agreement entered into, or a rental application received by
App. Def. 224
Page 1
21 of 52 DOCUMENTS
Texas Rules
STATE RULES
TEXAS RULES OF CIVIL PROCEDURE
PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS
SECTION 8. Pre-Trial Procedure
Tex. R. Civ. P. 166a (2011)
Rule 166a Summary Judgment
(a) For Claimant. --A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory
judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits
for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may
be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.
(b) For Defending Party. --A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory
judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as
to all or any part thereof.
(c) Motion and Proceedings Thereon. --The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed
and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party,
not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No
oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition
transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and
(ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any,
on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except
as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Issues not
expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as
grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion
testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and
inconsistencies, and could have been readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. --Discovery products not on file
with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed
and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs:
(i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at
least seven days before the hearing if such proofs are to be used to oppose the summary judgment.
App. Def. 225
(e) Case Not Fully Adjudicated on Motion. --If summary judgment is not rendered upon the whole case or for all
the relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file,
interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are established
as a matter of law, and directing such further proceedings in the action as are just.
(f) Form of Affidavits; Further Testimony. --Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed
by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal
unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.
(g) When Affidavits Are Unavailable. --Should it appear from the affidavits of a party opposing the motion that he
cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery
to be had or may make such other order as is just.
(h) Affidavits Made in Bad Faith. --Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of
the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
(i) No-Evidence Motion. --After adequate time for discovery, a party without presenting summary judgment evidence may move for

no. 05-11-00583-cv - 5th Court of Appeals

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