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finding that a refusal to hire based on belief employee not eligible for single position was not evidence employer regarded plaintiff as disabled
Summary of this case from Carter v. McReary Modern, Inc.Opinion
1:00CV00587
January 2, 2003
MEMORANDUM OPINION
I. INTRODUCTION
This matter is currently before the Court on Defendant Roadway Express's ("Defendant" or Roadway") Motion for Summary Judgment [Document #26] as to Plaintiff's claims that Roadway violated the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12101-12213, Title VII of the Civil Rights Act of 1964 ("Title VII") on the bases of national origin and race discrimination, 42 U.S.C. § 2000e-2000e-4, the Age Discrimination in Employment Act, 29 U.S.C. § 621-634 (the "ADEA"), and 42 U.S.C. § 1981 ("Section 1981") and 1983 ("Section 1983"). For the reasons explained below, Defendant's Motion for Summary Judgment is GRANTED and all claims asserted by Plaintiff against Defendant are hereby DISMISSED.
II. FACTUAL AND PROCEDURAL BACKGROUND
The documents available to the Court indicate that Defendant Roadway Express is a business that transports retail, industrial, and commercial goods. Plaintiff, Juventino Correa, is a naturalized American citizen, who emigrated to the United States from Mexico in 1987. (Correa Dep. at 8.) In February 1999, Correa learned from a friend, who provided him with a referral card, that Roadway was hiring casual dockworkers. (Correa Dep. at 14, Exh. 13.) The specific position was not a permanent one, but rather a "casual" position that would provide between 0-40 hours of work per week, and which paid $14.45 per hour. (Correa Dep. Exh. 13.) Additionally, because casual dockworkers are employed on an as-needed basis, the employee would have to arrive at Roadway within two hours of receiving a call, which could come at any time of day. (Correa Dep. Exh. 13.) To apply for the job, interested individuals had to present the referral card at the Roadway Personnel Office on any Tuesday or Saturday morning at 8:00 a.m. (Correa Dep. Exh. 13.)
On February 22, 1999, Correa attended an informational meeting at Roadway's facilities regarding the dockworker position. (Correa Dep. at 28.) At the meeting, Mark Holzer ("Holzer"), the human resources manager of Roadway, told the group of applicants about the casual dockworker position, gave them each a booklet containing the hiring process and procedures, and told them to return the next day if they were still interested. (Correa Dep. at 23-24, Exhs. 2-5.) Correa returned to Roadway the next day where he completed an application for the position and took several written tests. (Correa Dep. at 25-26, Exh. 1.) At the end of that meeting Holzer told Correa, "We might call you." (Correa Dep. at 36.) Afterwards, he received a call from Roadway requesting that he go to HealthSouth for a physical abilities test ("PAT"). (Correa Dep. at 37-38.) Correa went to HealthSouth, on February 26, 1999, where he was asked to perform three tests. (Correa Dep. at 94.) Correa contends that the first test, which required him to step up and down on a platform in response to noise cues, was administered at twice the proper speed. (Correa Dep. at 39-46, 94.) As a result of the improper speed, the technician slowed the pace for a short period of time so that Correa was able to take the test at the proper pace. (Correa Dep. at 42-44.) The second test required him to lift weights and place them on a tray, while the third test required Correa to pull on a handle with his maximum strength. (Correa Dep. at 42-43.)
On March 4, 1999, Roadway informed Correa that he did not pass the PAT because he failed the step test, but it invited him to come in to learn about a different position that was available. (Correa Dep. at 49-50, 95.) The next day Correa went to Roadway's office where he learned about a position that paid $8.50 per hour with no benefits through a temporary agency. (Correa Dep. at 50.) Because the job required using a radio to check on belts and conveyors, Correa was not interested in it since it required more use of the English language and paid less per hour. (Correa Dep. at 50.)
Instead of accepting the position, Correa went to talk to Holzer about the PAT. (Correa Dep. at 50-51.) Holzer told Correa to go to HealthSouth for another test. (Correa Dep. at 51.) Correa immediately returned to HealthSouth and scheduled another test for the following week. (Correa Dep. at 52.) On March 10, 1999, Correa performed only the step test. (Correa Dep. at 52-54.) A little over a week later, on March 18, 1999, Correa called Holzer, and Holzer informed him that he again failed the step test. (Correa Dep. at 55-57.)
In early April 1999, Correa sent a letter to HealthSouth inquiring about his test results, and indicating that he sent a copy of the letter to the Equal Employment Opportunity Commission ("E.E.O.C."). (Correa Dep. at 59-60, Exh. 6.) As a result of the letter, Holzer contacted Correa, and ultimately asked him to take the test for a third time. (Correa Dep. at 68.) On April 26, 1999, Correa again went to HealthSouth. (Correa Dep. at 69, 95.) This time he was given the directions for the test in Spanish, and this time he passed. (Correa Dep. at 70-72.) Because he passed, Roadway called Correa on May 4, 1999, to set up an interview between Correa and Holzer. (Correa Dep. at 74.) But, Correa informed Roadway that he was not interested in an Interview. (Correa Dep. at 75-76.) Correa explained that he declined the interview because he did not believe it was part of the hiring process, and he was afraid to have an interview in English. (Correa Dep. at 77-78, 96.) On May 10, 1999, Holzer sent a letter to Correa confirming that Correa had successfully completed the screening process up to that point and indicating that Correa had declined an interview. The letter also notified Correa that Roadway had withdrawn his application. (Correa Dep. at 78, Exh. 8.) In response, Correa sent Holzer a letter on May 18, 1999, stating that he was not withdrawing his application, but rather he was waiting for the results of an E.E.O.C. investigation. (Correa Dep. at 79.)
On August 3, 1999, Correa filed charges with the E.E.O.C. (Correa Dep. at 85, Exh. 10.) Both Roadway and HealthSouth responded to Correa's charges, and on March 6, 2000, the E.E.O.C. issued Correa a right to sue letter. (Correa Dep. at 88.) Correa, as a pro se plaintiff, filed this matter on June 15, 2000. (Correa Dep. at 88.) In his Complaint against Defendants Roadway and HealthSouth, Correa alleges federal claims for age discrimination pursuant to the ADEA, for discrimination on the bases of race and national origin pursuant to Title VII, for discrimination on the basis of a disability under the ADA, and for violations of his civil rights pursuant to 42 U.S.C. § 1981 and 1983. Additionally, Correa alleges that HealthSouth engaged in professional malpractice. On March 7, 2001, Attorney Nancy Quinn notified the Clerk of the Middle District of North Carolina Court that Correa was no longer acting pro se, and that she was his counsel. Pursuant to an Order issued on April 23, 2001, this Court granted Defendant HealthSouth's Motion to Dismiss. Thereafter, the parties commenced discovery, and on May 31, 2002, Roadway filed a Motion for Summary Judgment [Document #26] seeking dismissal of Plaintiff's claims. This matter is therefore currently before the Court on Defendant's Motion for Summary Judgment with respect to Plaintiff's claims.
The reference to Defendant from this point is solely to Roadway Express because HealthSouth is no longer a party to this matter.
III. DISCUSSION
A. Summary Judgment Standard
Summary Judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, the Court is not "'required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party.'" Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quotingSchuylkill Dauphin Improvement R.R. Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L.Ed. 867, 872 (1872)). In considering a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party, in this case, Plaintiff, and accord that party the benefit of all reasonable inferences. Bailey v. Blue Cross Blue Shield, 67 F.3d 53, 56 (4th Cir. 1995), cert. denied, 516 U.S. 1159, 116 S.Ct. 1043, 134 L.Ed.2d 190 (1996). Moreover, the Court should not grant a motion for summary judgment "'unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.'" Campbell v. Hewitt, Coleman Assocs., 21 F.3d 52, 55 (4th Cir. 1994) (quoting Phoenix Sav. Loan, Inc. v. Aetna Cas. Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967)). Nevertheless, a mere scintilla of evidence is insufficient to withstand a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. There must be evidence "on which the jury could reasonably find for the plaintiff." Id. With this standard in mind, the Court must evaluate the merits of Plaintiff's claims to determine whether summary judgment in favor of Defendant is proper.
B. Defendant's Motion for Summary Judgment
1. Plaintiff's ADEA Claim
Roadway has moved for summary judgment with respect to Plaintiff's claim for age discrimination under the ADEA. The ADEA provides, in pertinent part, that it is unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . . ." 29 U.S.C. § 623(a)(1). The ADEA further provides that its prohibitions serve to protect only those individuals who are at least forty years of age. 29 U.S.C. § 631(a). The Fourth Circuit recognizes two methods by which a plaintiff can establish a violation of the ADEA.Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1247, 137 L.Ed.2d 329 (1997). A plaintiff can establish his case through any direct or indirect evidence that is probative of the issue of age discrimination. Id. Alternatively, a plaintiff can rely on the judicially created scheme of proof originally established for use in Title VII cases in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later adapted for use in the context of age discrimination under the ADEA.Burns, 96 F.3d at 731; E.E.O.C. v. W. Elec. Co., 713 F.2d 1011, 1014 (4th Cir. 1983). In the instant case, Plaintiff relies solely on the McDonnell Douglas scheme to contend that Roadway discriminated against him on the basis of age. The Court will therefore focus on the merits of Plaintiff's ADEA claim in conjunction with a review using the McDonnell Douglas scheme.
The McDonnell Douglas scheme requires that Plaintiff proves, by a preponderance of the evidence, a prima facie case of discrimination.Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 429 (4th Cir. 2000). To prove his prima facie case, Plaintiff must establish the following four basic elements:
1) that he is a member of the protected age group, that is, at least forty years of age.;
2) that was qualified for the job, that is, as a dockworker;
3) that he was not hired despite his qualifications; and
4) that the person who was hired was outside the protected class and had equal or lesser qualifications.Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998).
Once Plaintiff has established his prima facie case, Defendant must respond with evidence that it acted with a legitimate, nondiscriminatory purpose. Stokes, 206 F.3d at 429. If Defendant meets this burden of production, the presumption of discrimination created by the prima facie case vanishes, requiring Plaintiff to prove that Defendant's proffered reason is a pretext for discrimination in order to recover. Id. In light of Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), Plaintiff is no longer required to show pretext plus some additional evidence of discrimination.Id. at 148, 120 S.Ct. at 2109; see Rowe v. Marley Co., 233 F.3d 825, 830 (4th Cir. 2000) (applying Reeves in the context of an ADEA claim). In other words, the Court may infer the ultimate fact of discrimination merely from the falsity of Defendants' proffered explanation. Rowe, 233 F.3d at 830. Nevertheless, Plaintiff, at all times, bears the ultimate burden of persuasion with respect to Defendant's alleged unlawful age discrimination. Stokes, 206 F.3d at 429.
In considering Plaintiff's prima facie case, the Court notes that Plaintiff has met one of the four requisite elements, that is, the first element. Because the record indicates that Plaintiff was born on January 25, 1950, Plaintiff, at the age of forty-nine, was well within the protected group of individuals that are at least forty years of age when he applied for the dockworker position in 1999. Plaintiff has therefore satisfied the first element of his prima facie case.
With respect to the second element of Plaintiff's prima facie case, that he demonstrates that he was qualified for the dockworker position, Plaintiff's show of proof is less convincing. Plaintiff claims, and Roadway does not dispute, that he took the step portion of the PAT on three separate occasions, and passed on his third attempt. Because he passed the PAT, Correa contends that he is qualified for the dockworker position. Roadway, however, maintains that Correa is not qualified for the position because he did not complete the entire application process since the PAT is only one component of the whole process.
Roadway contends that Correa is not qualified for the dockworker position because he did not complete the hiring process when he declined an offer to interview with Holzer. Correa admits that he would not submit to an interview with Holzer, but alleges that the interview was an additional step in the application process that Roadway required specifically only for him. (Pl.'s Br. Opp'n Def's. Mot. Summ. J., at 4, Correa Dep. at 77-78, 96.) Roadway, however, demonstrates that an interview is required of all applicants who are interested in the dockworker position because of the numerous job requirements. (Priest Aff. ¶ 3.) The purpose of the interview is to ensure that the applicant understands the varied job requirements and time commitments of the position. (Priest Aff. ¶ 3.) Roadway also asserts that between March 1999 and May 1999 it hired every applicant who came in for an interview, and of those new employees, twelve were over the age of forty. (Priest Aff. ¶ 6, 8.) Because Correa did not participate in all required steps of Roadway's hiring process, he cannot demonstrate that he was qualified for the dockworker position. Consequently, the Court finds that Correa cannot satisfy the second element of the prima facie case, and therefore, the Court need not address whether Correa can satisfy the remaining elements of the prima facie case of age discrimination.
Because Plaintiff cannot satisfy the prima facie case, there is no genuine issue as to Plaintiff's claim of age discrimination, and the Court finds that Defendant is entitled to judgment as a matter of law with respect to Plaintiff's claim of age discrimination in violation of the ADEA. Defendant's Motion for Summary Judgment is therefore GRANTED with respect to Plaintiff's ADEA claim.
2. Plaintiff's Title VII Claims on the Bases of National Origin and Race
Roadway has also moved for summary judgment with respect to Plaintiff's Claim of discrimination on the bases of national origin and race under Title VII. Title VII provides, in pertinent part, that it is unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise discriminate 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). Similar to the test the Court applied to Plaintiff's ADEA claim, the plaintiff in any Title VII action bears the initial burden of establishing a prima facie case of discrimination by establishing the four basic elements. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998). Following the same three-step burden shifting proof scheme that the Court applied to Plaintiff's ADEA claim, once Plaintiff has established his prima facie case, Defendant must respond with a legitimate, nondiscriminatory reason for its employment action. Taylor v. Virgina Union Univ., 193 F.3d 219, 230 (4th Cir. 1999). If Defendant meets this burden of production, the presumption of discrimination created by the prima facie case vanishes, requiring Plaintiff to prove that Defendant's proffered reason is a pretext for discrimination in order to recover. Id.
In considering Plaintiff's prima facie case, the Court notes that Plaintiff has met the first of the four requisite elements, that is, the record indicates that Plaintiff is a Hispanic male of Mexican origin. As such, Plaintiff was well within the protected group of individuals on the bases of race and national origin. (Correa Dep. at 8-9.) Plaintiff has therefore satisfied the first element of his prima facie case.
However, as the Court noted in its analysis of Plaintiff's ADEA claim, with respect to the second element of Plaintiff's prima facie case, that he demonstrate that he was qualified for the dockworker position, Plaintiff's show of proof is again not convincing. Because Correa did not participate in all required steps of Roadway's hiring process, he cannot demonstrate that he was qualified for the dockworker position. Specifically, the Court finds that Plaintiff's failure to complete the interview process rendered him not qualified for the position.
Additionally, Plaintiff's claim also fails in his prima facie showing because, with respect to the fourth element, Plaintiff cannot demonstrate that Defendant ever rejected him for the position. Instead, Plaintiff took it upon himself not to show up for the single non-discriminatory process that stood between him and getting the job. As noted, Plaintiff no doubt would have been offered the job once all of the job requirements were explained to him. Plaintiff failed to do so which, in essence, amounted to a withdrawal of his application for the job. Plaintiff fails at that instant to demonstrate that Defendant engaged in any discriminatory conduct toward him with respect to his race or national origin. Defendant's hiring records, with respect to persons of similar national origin and race, refute any such evidence Plaintiff has or could offer to the contrary.
Because Plaintiff cannot satisfy the prima facie case, there is no genuine issue as to Plaintiff's claim of discrimination on the bases of race and national origin, and the Court finds that Defendant is entitled to judgment as a matter of law with respect to those claims. Defendant's Motion for Summary Judgment is therefore GRANTED with respect to Plaintiff's Title VII claims.
3. Plaintiff's ADA Claim
Roadway also seeks summary judgment in its favor on Plaintiff's claim under the ADA, in which Correa alleges that Roadway regarded him as disabled, and consequently, refused to hire him, and that he was subjected to pre-employment medical testing in violation of the ADA. Similar to his other claims of intentional discrimination, in the absence of direct evidence of discrimination, Correa must satisfy the three-step proof scheme established in McDonnell Douglas Corp., to prevail on his ADA claims. Under this framework, Plaintiff must establish, by a preponderance of the evidence, a prima facie case of discrimination.Causey, 162 F.3d at 800 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed. 207 (1981));Williams v. Channel Master Satellite Sys. Inc., 101 F.3d 346, 348 (4th Cir. 1996) (per curiam), cert. denied, 520 U.S. 1240, 117 S.Ct. 1844, 137 L.Ed.2d 1048 (1997). Once Plaintiff has established his prima facie case, the burden of persuasion then shifts to Defendant to rebut the presumption of discrimination by producing evidence that Plaintiff was not hired for a legitimate, non-discriminatory reason, and the plaintiff bears the ultimate burden of proving that he was the victim of intentional discrimination. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. With this standard in mind, the Court next turns to Plaintiff's allegation that Defendant's refusal to hire him as a dockworker constituted disability discrimination under the ADA.
The Court must first examine whether Correa is disabled within the meaning of the ADA. An individual is disabled under the ADA if he: (1) has a physical or mental impairment that substantially limits one or more of his major life activities, or (2) has a record of such impairment, or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). Correa does not contend that he was actually disabled at the time he performed the PAT; instead, he maintains only that Roadway regarded him as being disabled. Specifically, Correa contends that Roadway regarded him as having a cardiovascular disability which "affects many major life activities." (Pl.'s Br. Opp'n Def's. Mot. Summ. J., at 5.)
An individual is regarded as being disabled if he is perceived as disabled, albeit erroneously, as having an impairment that substantially limits one or more of his major life activities. 42 U.S.C. § 12102(2). A person may be "regarded as" disabled under the ADA if either a covered entity mistakenly believes that the person has a physical impairment that substantially limits one or more major life activities, or believes that an actual, nonlimiting impairment substantially limits one or more major life activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 2149-50, 144 L.Ed.2d 450 (1999). The fact that an employer is aware of an employee's impairment, without more, is "insufficient to demonstrate either that the employer regarded the employee as disabled or that perception caused the adverse employment action. Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996).
Correa offers Roadway's refusal to hire him as a dockworker when he initially failed the PAT as evidence of Roadway's perception of his disability. Because, as Correa asserts, HealthSouth monitored his heart rate and blood pressure before and after the step test portion of the PAT, and because he failed only that portion of the PAT, Correa concludes that Roadway perceived him as having a cardiovascular disability which limits his ability to work as a dockworker. Viewing the evidence in the light most favorable to Correa, which would at best indicate that Roadway initially perceived Correa to be limited in his ability to work as a dockworker, the Court still cannot conclude Roadway perceived Correa to be substantially limited. Murphy v. United Parcel Servs., 527 U.S. 516, 52 1-22, 119 S.Ct. 2133, 2137, 144 L.Ed.2d 484 (1999). "When the major life activity under consideration is that of working, the statutory phrase 'substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs." Sutton, 527 U.S. at 491, 119 S.Ct. at 2151. Moreover, the regulations promulgated by the E.E.O.C. under Title I of the ADA explain that, "[t]he 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 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) (2002).
Specifically, Correa cites Myers v. Hose, 50 F.3d 278 (4th Cir. 1995), to support his contention that cardiovascular disease is a disability. The Court notes, however, that not only are the facts ofMyers quite different than the facts of the instant matter, but also that Correa fails to link the results of any monitoring to a diagnosis of a cardiovascular disability in his situation. In Myers, the district court stated that Plaintiff had been diagnosed with a severe heart condition and hypertension, and had been hospitalized for cardiac failure twice in the preceding eight years. Id. at 282. As a result of his condition, he was not capable of driving a bus. Id.
At most, Correa's evidence establishes that he was initially perceived as unable to perform the single job of a dockworker. Because Roadway initially offered Correa a different position, albeit with a reduced salary and no benefits, and ultimately was prepared to offer Correa the position that he desired if he had shown up for the interview, the Court cannot conclude that Roadway perceived Correa as being unable to perform a class of jobs or a broad range of jobs. See 29 C.F.R. § 1630.2(j)(3)(ii)(B) (defining "class of jobs" as including "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills, or abilities"); 29 C.F.R. § 1630.2(j)(3)(ii)(C) (defining "broad range of jobs" as including "[t]he 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"). Consequently, the Court finds as a matter of law that Roadway did not "regard" Correa as disabled, and therefore Correa cannot satisfy the prima facie case of disability discrimination.
Even if the Court concluded that Correa could satisfy the first prong of the prima facie standard, as previously noted, Correa was not otherwise qualified for the position because he declined to interview with Roadway as part of the application process.
Correa also raises another claim under the ADA by asserting that the PAT required by Roadway violates the ADA's prohibition on pre-employment medical testing. The ADA specifically states that "a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." 42 U.S.C. § 12112(d)(2)(A). The ADA does, however, permit "[a] covered entity [to] make pre-employment inquiries into the ability of an applicant to perform job-related functions." 42 U.S.C. § 12112(d)(2)(B). Clearly, Roadway required Correa to submit to a physical agility test or a physical fitness test, which are types of pre-employment examinations that are clearly related to the job functions of a dockworker.
However, in the instant matter, Correa also asserts that HealthSouth monitored his blood pressure and heart rate during the performance of at least one of the tests that comprise the PAT. But, Correa fails to identify any evidence as to whether he was subjected to monitoring during the step test on each of the three occasions he took it, and he does not produce any evidence, such as the specific outcomes of the tests, to give rise to a genuine issue of material fact as to whether or not Roadway was conducting pre-employment medical testing to determine if Correa had either a disability or so as to determine the nature and severity of any such disability if disclosed by the testing. In his deposition, Correa maintains that before the first step test, he was asked to place "a device direct on my body," and "a wrist watch in my wrist." (Correa Dep. at 39.) However, because the strap on the watch-like device was broken, the administrator of the test held it in her hand, a fact that makes it difficult to demonstrate that it was used to monitor Correa's biological functions. (Correa Dep. at 39.) He also contends that during the first step test "[t]hey measured the blood pressure at the beginning and at the end." (Correa Dep. at 45.) During the second test, however, Correa initially stated that he could not remember whether he wore the strap on his body, but then he claimed that the administrator measured his heart rate, but not his blood pressure. (Correa Dep. at 53-54.) At the third test, Correa also could not remember whether he was monitored. (Correa Dep. at 69-70.) Because this testimony, when taken in conjunction with the fact that no other evidence of medical testing occurred, cannot create a genuine issue of material fact that prohibited pre-employment medical testing occurred, the Court finds that Roadway as a matter of law did not subject Correa to pre-employment medical testing. In sum, because Correa cannot satisfy the prima facie standard of disability discrimination, and was not subjected to pre-employment medical testing, he cannot raise a genuine issue of material fact to support his claims under the ADA. Defendant's Motion for Summary Judgment is therefore GRANTED with respect to Plaintiff's ADA claim.
4. Plaintiff's 42 U.S.C. § 1981 Claim
Correa also contends that Roadway discriminated against him in violation of 42 U.S.C. § 1981 ("Section 1981"). Roadway contends that it is entitled to summary judgment because the McDonnell Douglas scheme is also applicable under Section 1981, and Correa cannot make out a prima facie case. Section 1981 provides in pertinent part that "all persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . ." Thus, in order to proceed with a cause of action under Section 1981, Correa must allege that he was discriminated against on the basis of race in his attempt to make or enforce a contract with Roadway. St. Francis v. Al-Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 2026, 95 L.Ed.2d 582 (1987). Here, Correa does not allege any facts from which it can be inferred that he was a victim of intentional discrimination on the basis of race by Roadway. Moreover, he does not contend that he was in any way denied the right to make or enforce a contract with Roadway. Hence, because Correa does not raise a genuine issue of material fact as to the existence of discrimination in violation of Section 1981, the Court finds that Roadway is entitled to summary judgment with regard to Correa's Section 1981 claim. Defendant's Motion for Summary Judgment is GRANTED with respect to Correa's claim under 42 U.S.C. § 1981.
5. Plaintiff's 42 U.S.C. § 1983 Claim
Correa next alleges that Defendant's actions were in violation of 42 U.S.C. § 1983 ("Section 1983"). Roadway argues that no genuine issue of material fact exists with regard to Correa's claim because Roadway is a private entity and not a state actor. Section 1983 provides in pertinent part that: "[e]very person, who under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . ." Notably, liability under Section 1983 only extends to individuals acting under color of law, a requirement equivalent to that of state action under the Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982). Thus, conduct is only actionable under Section 1983 when it is "'fairly attributable to the state.'" United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982)). Because Correa does not raise any facts which would support his Section 1983 in terms of state action by Roadway, he does not raise a genuine issue of material fact. Accordingly, Correa cannot maintain a claim under Section 1983 and, therefore, Defendant's Motion for Summary Judgment with respect to Plaintiff's Section 1983 claim is hereby GRANTED.
IV. CONCLUSION
For the reasons stated above, the Court finds that there are no genuine issues of material fact with respect to any of Plaintiff's claims under the ADEA, Title VII of the Civil Rights Act of 1964, the ADA, or 42 U.S.C. § 1981 and 1983. Therefore, Defendant's Motion for Summary Judgment is GRANTED and all claims asserted by Plaintiff against Defendant are hereby DISMISSED.
An Order and Judgment consistent with this Memorandum Opinion will be filed contemporaneously herewith.