Summary
noting that running and "having a capacity for physical exertion" are not included among major life activities
Summary of this case from Parkinson v. Anne Arundel Medical Center, Inc.Opinion
Civ. No. AMD 99-1187 and Civ. No. AMD 99-1189.
April 11, 2000.
MEMORANDUM
The plaintiff, Josh Billings, has brought suit against two firms, Central Casting, Incorporated and Taylor Royall, Inc., each of which is in the business of making referrals for acting jobs, i.e., referrals for auditions before the entity interested in hiring a performer, in the Baltimore/Washington area on behalf of the members of two labor organizations, The Screen Actors Guild ("SAG") and The American Federation of Television and Radio Artists ("AFTRA") (together, "the unions"), which represent performing artists. The unions have also been joined as defendants. Billings is an actor. He alleges claims of disability discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. In addition, he asserts a state law claim for interference with prospective economic advantage.
Pending before the court are defendants' respective motions for summary judgment. I have carefully considered the parties' memoranda and exhibits; no hearing is necessary. For the reasons stated below, I shall grant summary judgment as to all federal claims. I shall decline to exercise supplemental jurisdiction over the state law claims and I shall dismiss those claims without prejudice.
Defendants have also filed a motion to dismiss for failure to state a claim, which shall be denied.
(i)
Pursuant to Fed.R.Civ.P. 56(c), 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 judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248. Summary judgment is also appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Celotex Corp., 477 U.S. at 324; Anderson, 477 U.S. at 252; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). Of course, the facts, as well as the justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).
(ii)
Billings is 52 years old. He has been a professional actor for more 15 years. He enjoyed a reasonably successful career in the Baltimore/Washington area from 1984 through 1990. Generally, he performed in live theater, in television commercials and in industrial and government films.
In 1989, Billings suffered a serious injury to the ligaments in his neck while working. As a result of this occurrence, he is severely limited in activities requiring physical exertion. Specifically, he "cannot walk longer than 15 or 20 minutes, . . . cannot stand still for 10 to 15 minutes without experiencing pain, . . . run . . . jump . . . or lift a 10 lb. weight for longer than a few minutes." Billings Aff. ¶¶ 7, 8. Billings also suffers from arthritis and depression. Notwithstanding his physical and other impairments, he "can perform approximately 98 percent of the jobs available to a SAG member and 100 percent of the jobs available to an AFTRA member." Id. at ¶ 16.
The gravamen of Billings's claims is the asserted anti-disability animus of the principals of Central Casting and Taylor Royall. That is, Billings asserts that those referral agencies refuse to refer him to potential employers for principal roles, i.e., roles with spoken lines and therefore better-paid — and that without referrals from Central Casting and Taylor Royall, which together control 90% of such union referrals in this region, he is effectively precluded from performing in such roles as a member of SAG or AFTRA. Central Casting and Taylor Royall are alleged to be the agents of the union defendants, and the unions are therefore sued on the basis of respondeat superior.
Under the ADA, an employment agency is a covered entity, and I presume that defendants Central Casting and Taylor Royall are encompassed by this provision. See Jones v. Southeast Alabama Baseball Umpires Asso., 864 F. Supp. 1135, 1137 (M.D.Ala. 1994).
The evidence Billings has marshaled in support of his claims is scant, and indeed, it actually undermines his contention that defendants are motivated by anti-disability animus. Defendants vigorously deny that they have treated Billings in a disparate manner on the basis of disability. In fact, they essentially deny that they even knew or believed that he was disabled; to the contrary, they have regarded him and they continue to regard him as not disabled, and Billings's submissions provide some support these contentions. Billings admits, for example, that when he returned to the Washington area from New York in late 1995, he advised Taylor Royall that he was disabled but he did not advise Central Casting. Yet, "[b]oth Central Casting and Taylor Royall called [him] for auditions." Id. ¶ 12.
Billings seems to trace the alleged discriminatory treatment to which he asserts he has been subjected by defendants to his role in the founding, in 1996, of the group Performers with Disabilities. None of the parties to this case has provided any information about this group, and the record is utterly bereft of any explanation, beyond Billings's bald assertions of "cause" and "effect," why his role in founding Performers with Disabilities would have given rise to anti-disability animus on the part of defendants. In any event, Billings alleges that Central Casting and Taylor Royall ceased referring him for auditions in respect to principal roles. In addition, he attributes to an official at Central Casting the remark, made during an angry exchange with Billings, "[you are] not fit to act." Id. at ¶ 13. Similarly, he attributes to one of the officials at Taylor Royal the statement that Taylor Royall "did not hire members of . . . Performers with Disabilities and that [Billings] would not work in the local area again." Id. at ¶ 14. There is some evidence in the record that the defendants, or some of them, may harbor antipathy toward Billings as a result of "the National Labor Relations Thing," but beyond the statement attributed to defendant Taylor Royall above, there is not a scintilla of direct evidence of disparate treatment on the basis of disability. Billings also alleges that he advised the unions about the treatment he was receiving but the unions did not act to end it.
Despite Billings' assertions that he has not received adequate referrals or referrals on a fair and non-discriminatory basis, the undisputed record before me shows that, as measured by earnings among SAG members in this region, he has been in the top tier of performers for three years. Moreover, defendants have established with unrebutted evidence that the market for actors in this area has improved compared to the 1989 period when Billings last worked here, but also that competition among performers is acute, as well. Thus, to the extent that Billings' claims hinge on an assertion that discrimination is suggested by his relatively diminished earnings, he has failed to rebut the defendants' alternative explanations.
Defendants have also established without dispute that (1) on at least one occasion, Billings simply failed to appear for an audition because he believed that the role required "running" but that the part was awarded to a performer having restrictions not unlike Billings's; and (2) that on at least one other occasion, Billings similarly failed to appear for an audition. Billings has presented no evidence from any other actor, disabled or non-disabled, as to any pattern or practice in respect to referrals.
(iii)
Billings purports to allege three ADA claims. First, he alleges a claim of disparate treatment on the basis of disability. Second, he alleges a failure to provide a reasonable accommodation for his disability. Third, he alleges that defendants retaliated against him because he invoked his rights under the ADA.
The McDonnell Douglas burden-shifting scheme generally applies in analyzing disparate treatment claims under the ADA in cases like Billings's "where the defendant disavows any reliance on discriminatory reasons for its adverse employment action." Runnebaum v. Nationsbank of Maryland, 23 F.3d 156, 164 (4th Cir. 1997) ( citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The McDonnell Douglas proof scheme involves a three-step process. First, the plaintiff must project evidence sufficient to establish a prima facie case of discrimination. By so establishing a prima facie case, the plaintiff creates a rebuttable "presumption that the employer unlawfully discriminated against" him, and the burden of producing evidence on the issue shifts to the employer. Runnebaum, 123 F.3d at 164 ( citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). The employer then must "rebut the presumption of discrimination by producing evidence that the plaintiff was [terminated] . . . for a legitimate, nondiscriminatory reason." Id. The employer "must clearly set forth . . . reasons for its action which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Id. ( quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). Finally, if the employer meets its burden of production, the presumption raised by the prima facie case is rebutted and "drops from the case," and the plaintiff must project sufficient evidence to sustain his ultimate burden of proving that he has been the victim of intentional discrimination. Id.
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). To establish a violation of the ADA, Billings must show (1) that he had a disability; (2) that he is qualified for the job; and (3) that defendants refused to refer him for auditions and did so discriminatorily based on his disability. Tyndall v. National Educ. Cntrs., Inc., 31 F.3d 209 (4th Cir. 1994). The ADA defines "disability" as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." 42 U.S.C. § 12102(2). The ADA and the EEOC interpretive guidelines define "major life activities" to include "working" and "lifting," but "running," "jumping" and "having a capacity for physical exertion" are not included. Cf. 29 C.F.R. § 1630.2(i) (listing "major life activities" as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working"); Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996), cert. denied sub nom Williams v. Avnet, Inc., 520 U.S. 1240 (1997).
To establish that one is disabled, one must show that one is "significantly restricted" in performing a major life activity "as compared to the condition, 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)(ii). Moreover, when the major life activity at issue is working, the "inability to perform a single, particular job does not constitute a substantial limitation;" in this circumstance "substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs of various classes. . . ." 29 C.F.R. § 1630.2(j)(3). See Williams, 101 F.3d at 349 ( citing Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311, 1319 (8th Cir. 1996)).
Billings contends that he is limited in "his ability to lift, run or perform any task that requires strenuous exertion," and that his "disability limits several major life activities." Complaint ¶ 25. It seems clear on this record, however, that notwithstanding his limitations, Billings is not "disabled" under the ADA; he is not significantly restricted in his ability to work as an actor. This is made clear by the undisputed fact — accepted by all the parties here — that he is able to perform "approximately 98 percent of the jobs available to a SAG member and 100 percent of the jobs available to an AFTRA member." Billings Aff. at ¶ 16. Moreover, the restrictions his doctors have imposed upon Billings on lifting, running and physical exertion are not "major life activit[ies]," cf. Halperin v. Abacus Technology Corp., 128 F.3d 191 (4th Cir. 1997); 29 C.F.R. § 1630.2(i), and do not, in any event, singly or in the aggregate, impose significant restrictions "as compared to the condition, 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)(ii).
In the alternative, even assuming Billings is "disabled" within the meaning of the ADA, Billings's conclusory evidence that he was not referred for principal roles, even in the face of Billings's uncorroborated attribution to the referral agencies of a discriminatory animus, is insufficient to support the creation of a prima facie case, or to persuade a reasonable juror by a preponderance of the evidence on the ultimate issue that he has been denied referrals because he is disabled. Accordingly, Billings's disparate treatment disability claims fail as a matter of law.
At bottom, Billings has seriously misapprehended the burden placed upon him by Fed.R.Civ.P. 56 to come forward with affirmative evidence sufficient to establish that there existed during the time of the allegedly discriminatory non-referrals specific audition opportunities which defendants denied him. Plaintiff rather cavalierly suggests that there is "no way to know" what he was denied and that therefore he need not produce such evidence. This will not do. The purpose of discovery is to enable a litigant to uncover what is there in the way of evidence within the control of his adversary. Billings, for reasons not remotely explained in the record, has simply failed to take advantage of opportunities to uncover evidence of withheld auditions. His reliance on assertions attributed to the referring agencies, without at least prima facie showing that threats to discriminate were acted on by those who voiced threats, is unavailing.
Billings's invocation of the mixed motive line of cases, see Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999), is likewise unavailing because he has failed to project evidence, beyond his bare assertion, of actual averse actions taken against him in the form of refusals to refer for auditions. Cf. Kubicko v. Ogden Logistics Serv., 181 F.3d 544 (4th Cir. 1999) (reversing a grant of summary judgment for employer in retaliation case under Title VII because the record contained evidence of a "mixed motive" in the termination of the plaintiff).
(iv)
Billings alleges a retaliation claim based on the ADA, which is to be analyzed as would a Title VII retaliation claim. See Baird v. Rose, 192 F.3d 462, 471-72 (4th Cir. 1999). Title VII makes it an "unlawful employment practice . . . for an employment agency . . . to discriminate against any individual . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The McDonnell Douglas burden-shifting scheme applies in analyzing retaliation claims under Title VII. Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) ( citing McDonnell Douglas Corp., 411 U.S. at 802). First, the plaintiff must establish a prima facie case of retaliation. Id. ( citing Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997)). The burden then shifts to the employer to produce a legitimate nondiscriminatory reason for the adverse action. Id. The plaintiff must then demonstrate that the employer's reason was mere pretext for retaliation by showing "both that the reason was false and that discrimination was the real reason for the challenged conduct." Jiminez v. Mary Washington College, 57 F.3d 369, 377-78 (4th Cir. 1995) ( quoting Hicks, 509 U.S. at 515); Vaughan v. The Metrahealth Cos., 145 F.3d 197, 202 (4th Cir. 1998).Billings has failed to project evidence sufficient to establish a prima facie case of retaliation because he has not brought forward evidence upon which a reasonable juror could conclude that he engaged in protected activity. Billings proffered evidence that he was a founder of Performers with Disabilities, but there is no showing here that merely founding a group for disabled performers constitutes an invocation of rights under the ADA. Moreover, there is no showing here that it would have been reasonable for Billings to believe that he had engaged in activities protected by the ADA. Cf. Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 415 (4th Cir. 1999), cert. dismissed, ___ U.S. ___, 120 S.Ct. 1005 (2000); Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981); see Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 230-31(1st Cir. 1976).
Finally, for the reasons discussed above, there is no evidence that Billings has suffered any adverse treatment necessary to a retaliation claim. Even crediting Billings' assertion that he was threatened with a withholding of referrals because he was a member of Performers with Disabilities, the mere threat would not constitute an adverse action cognizable under anti-discrimination laws. See Leskinen v. Utz Quality Foods, Inc., 30 F. Supp.2d 530, 533 (D.Md.), aff'd, 165 F.3d 911 (4th Cir. 1998) (table). Absent evidence sufficient to support a jury verdict in his favor on this issue, he may not avoid summary judgment.
(v)
For the reasons stated above, I shall grant summary judgment to defendants as to all federal claims. Having thus disposed of all of the federal claims in this case, I shall exercise my discretion under 28 U.S.C. § 1367(c)(3) to dismiss, without prejudice, Billings's state claims. See Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). A separate order follows.
ORDER
In accordance with the foregoing Memorandum, it is this 11th day of April, 2000, by the United States District Court for the District of Maryland,
(1) ORDERED that the motions for summary judgment are GRANTED IN PART AND DENIED IN PART AND JUDGMENT IS ENTERED IN FAVOR OF DEFENDANTS AS TO ALL FEDERAL CLAIMS; and it is further
(2) ORDERED that all state law claims are DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION; and it is further
(3) ORDERED that the Clerk shall CLOSE THESE CASES and TRANSMIT copies of this Order and the foregoing Memorandum to all counsel.