Opinion
No. 01-2679 Ma/V
January 9, 2003
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the court is Defendant's motion for summary judgment filed on September 30, 2002. In response to this motion, Plaintiff filed a motion to strike Defendant's motion, its exhibits, and all testimony on October 10, 2002. Defendant responded to Plaintiff's motion to strike on October 21, 2002. Plaintiff's motion to strike was subsequently denied by United States Magistrate Judge Diane K. Vescovo on October 30, 2002. Plaintiff's
motion to strike was its only response to this motion for summary judgment, and the time for response has now passed. For the following reasons, the court GRANTS Defendant's motions for summary judgment and DISMISSES this action.
I. Background
The following material facts are undisputed unless stated otherwise. Plaintiff Beverly Dunn ("Dunn") is an adult resident citizen of Memphis, Tennessee. (Compl. ¶ 1.) Defendant Sharp Manufacturing Company of America ("Sharp") is a foreign corporation authorized to conduct business within the state of Tennessee. (Id.) Dunn was employed by Defendant Sharp from July 9, 1984 through her termination on July 24, 2000. (Id. ¶ 2.) On July 19, 2001, Sharp filed an action in Shelby County Circuit court alleging that her termination was in violation of the Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. § 4-21-101 et seq., and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et. seg. On August 24, 2001, Sharp removed this action to the United States District Court for the Western District of Tennessee pursuant to 29 U.S.C. § 1441 et. seg.
During the course of Dunn's employment with Sharp, she worked in several different departments and in several different positions. (Def.'s Statement of Undisputed Material Facts in Supp. of its Mot. for Summ. J. ¶¶ 1-2,) Throughout the course of Plaintiff's employment, she received twenty-two (22) disciplinary actions from Sharp. (Id. ¶ 3.) The severity of these disciplinary actions ranged from warnings to three-day suspensions. (Id. ¶ 4.) Plaintiff does not recall being issued all of these warnings, but recalls receiving at least five of the warnings and at least one of the three-day suspensions. (Id. ¶ 5; Sharp Dep. at 18-42.)
In May 2000, Sharp assigned Plaintiff to work second shift as an assembler in the Toner Department. (Def.'s Statement of Undisputed Material Facts in Supp. of its Mot. for Summ. J. ¶¶ 2, 6.) On May 15, 2000, Dunn, without permission, brought her two six-year old children to work and took them to her workstation on the production floor. (Id. ¶¶ 7-8.) In doing so, she knowingly violated Sharp's safety rules, which prohibit the presence of children on the production floor, and Sharp's badge scanning policy, which prohibits employees from allowing others into the manufacturing facility when they swipe their badges. (Id. ¶¶ 7-8, 16.) She also violated Sharp's Foreign Trade Zone Restriction. (Id. ¶ 13.) Dunn was approached by two managers, Paula Price and Wayne Castleberry, one of whom told her that her children could not remain on the production floor. (Id. ¶¶ 9-10.) She then gathered her belongings, left work, and did not return. (Id. ¶ 11.)
Three days later, on May 18, 2000, Dunn requested FMLA leave. (Id. ¶ 17.) Prior to May 18, Dunn had requested and used FMLA leave twice and returned to work without incident. (Id. ¶ 40.) While Dunn was on FMLA leave, Sharp conducted an investigation of the incident on May 15, 2000 and reviewed her entire disciplinary record. (Id. ¶¶ 18-19.) She was interviewed as part of this investigation, and she admitted in the interview that she had brought her children to work in contravention of company policy. (Id. ¶ 20.) Dunn's employment was terminated on July 24, 2000. Sharp alleges that Plaintiff was terminated for an accumulation of work rule violations. (Id.) Plaintiff alleges that she was terminated because of an alleged disability, "chronic stress," and in retaliation for her electing to take FMLA leave. (Compl. ¶¶ 80-85, 98.)
Plaintiff first began suffering from her alleged disability in April 2000. (Def.'s Statement of Undisputed Material Facts in Supp. of its Mot. for Summ. J. ¶ 23.) While she suffered from this alleged condition, she avers that she was unable to work, take care of herself, or take care of her children. (Id. ¶ 27.) Her condition was a temporary condition which was no longer a problem as of October 2000. (Id. ¶¶ 24, 29.) Dunn no longer suffers from chronic stress and is no longer taking medication or receiving treatment for chronic stress. (Id. ¶¶ 25, 29.) Dunn has no knowledge or evidence that Sharp considered her to be disabled or that Sharp had a mistaken belief regarding her condition. (Id. ¶¶ 30-31.)
II. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant must meet its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323.
In considering a motion for summary judgment, "the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[S]ummary judgment will not lie if the dispute is about a material fact that is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. THRA Claim
Dunn alleges that Sharp violated the THRA by terminating her because of her handicap: chronic stress. Dunn's claim fails, however, because she has failed to demonstrate that there is a genuine issue of material fact with respect to the fact that she has a "handicap" that falls within the protection of the THRA.
A. Elements of a THRA Claim
Tennessee law prohibits private employers from discriminating against employees "based solely on any physical, mental, or visual handicap of the applicant, unless such handicap to some degree prevents the applicant from performing the duties required by the employment or impairs the performance of the work involved." Tenn. Code. Ann. § 8-50-103(a). To prove a claim under this statute, an employee must prove: "(1) that the individual was qualified for the position; (2) that the individual was disabled; and (3) that the individual suffered an adverse employment action because of that disability." Barnes v. Goodyear Tire and Rubber Co., 48 S.W.3d 698, 705 (Tenn. 2000).
In evaluating the second prong of this test, whether Plaintiff has a handicap or disability, courts must look to the statutory definition of handicap. The Tennessee Handicap Act ("THA") provides three ways in which Plaintiffs can demonstrate that they suffer from a legally-cognizable "handicap." See Tenn. Code Ann. § 4-21-102(9)(A). Specifically, the THA defines "handicap" as: (i) A physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) A record of having such an impairment; or (iii) Being regarded as having such an impairment." Id.
Plaintiff has brought her claim under the THRA, which does not specifically cover employment-related handicap discrimination. In Tennessee, protection from handicap discrimination has been separately codified in the THA. Nevertherless, "The THA works in conjunction with the THPA to grant an individual a civil cause of action for wrongful discrimination based upon a handicap." Perlberg v. Brencor Asset Mgmt., Inc., 63 5.W.3d 390, 394 (Tenn.Ct.App. 2001). Furthermore, a complaint alleging a violation of the THRA is sufficient to apprize a Defendant of a Plaintiff's claims under the THA. Id. at 395.
For purposes of THRA claims based on disability discrimination, Tennessee courts look to the Americans with Disabilities Act ("ADA") for guidance. Barnes, 48 S.W.3d at 706. Therefore, the court will employ ADA analysis in evaluating the handicap-based THRA claim.
B. Substantial Limitation of a Major Life Activity
The court first looks to whether Plaintiff has created a genuine issue of material fact as to whether she was "substantially limited" in performing a "major life activity." "`Major life activities' include `functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996) (quoting 29 C.F.R. § 1630.2 (i) (1995)). Because Dunn alleges, and Defendant does not dispute, that she was unable to work or take care of herself, there is a genuine issue of material fact as to whether she was impaired in performing major life activities. Impairment, however, is not sufficient. Plaintiff must also establish that she was "substantially limited" in performing a major life activity. This she has not shown.
In deciding whether a condition "substantially limits" a major life activity, courts must consider: "(i) 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." Roush, 96 F.3d at 843 (quoting 29 C.F.R. § 1630.2 (i)(2) (1995)). "Generally, short-term, temporary restrictions are not substantially limiting." Id.;see also Toyota Motor Mfg., Ky., Inc. v. Williams, 122 S.Ct. 681, 691 (2002) (holding that to constitute a disability, an impairment's impact must be "permanent or long term.")
In Roush, an ADA Plaintiff suffered from two alleged disabilities: a kidney condition and a bladder condition. 96 F.3d at 842-44. The kidney condition was sufficiently severe to limit Plaintiff to working less than ten weeks in each of two consecutive years. Id. at 842. Nevertheless, the Sixth Circuit upheld the district court's finding that Plaintiff had failed to demonstrate that there was a genuine issue of material fact with respect to whether the impairment "substantially limited" her ability to perform "major life activities," because Plaintiff's condition was temporary. Id. at 844. The court distinguished this from Plaintiff's bladder condition, with respect to which Plaintiff had presented evidence that she continued to require semi-monthly medical treatment. Therefore, the Sixth Circuit held that there was a genuine issue of material fact as to whether the bladder condition substantially limited Plaintiff's ability to work, a major life activity.
A recent case in the United States District Court for the Northern District of New York, citing the Sixth Circuit's Roush opinion, among others, concluded: "A disability under the ADA does not include temporary medical conditions, even if those conditions require extended leaves of absence from work because such conditions are not substantially limiting." Huskins v. Pepsi Cola of Odgensburg Bottlers, Inc., 180 F. Supp.2d 347. 351 (N.D.N.Y. 2001) (quoting Halperin v. Abacus Tech. Corp., 128 F.3d 191, 199 (4th Cir. 1997)). The Huskins court cited cases across the circuits which held that even serious mental and physical impairments lasting as long as nine months could not constitute disabilities for purposes of the ADA because they were only "temporary."See id. at 351-352 (citing cases).
In this case, Plaintiff's disability lasted no longer than seven months. Dunn admits that she is completely recovered from her chronic stress condition and avers that she no longer receives or requires treatment. Thus, even if Plaintiff could demonstrate that this stress impaired her performance of "major life activities," her own admissions could lead a jury to but one reasonable conclusion: that her condition was temporary and thus could not have served to "substantially limit" her performance of those activities. Therefore, her chronic stress does not constitute a "handicap" under the first prong of the statutory definition.
C. Record of Impairment
The second, alternative way a Plaintiff can demonstrate that he or she suffers from a legally-cognizable "handicap" under the THRA is to demonstrate a "record of impairment." Tenn. Code Ann. § 4-21-102(9)(A) (ii). To show a "record of impairment" under the ADA, a Plaintiff must show that he or she "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." Dupre v. Charter Behavioral Health Sys. of Lafayette. Inc., 242 F.3d 610, 615 (5th Cir. 2001) (citing 29 C.F.R. § 1630.2 (k)). Thus, to satisfy this definition, Plaintiff must also prove that her disability or handicap "substantially limits" one of her "major life activities." As stated above, the temporary nature of Plaintiff's alleged handicap precludes such a finding. Therefore, there is insufficient evidence to withstand this motion for summary judgment based on the "record of impairment" definition of "handicap."
D. Regarded as Having an Impairment
The final method by which a Plaintiff can demonstrate that he or she has a "handicap" under the THRA is to show that the Defendant regarded Plaintiff as having a handicap. Plaintiff can make this showing by demonstrating either: "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially 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." Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 599 (6th Cir. 2002) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999)) (emphasis added).
Defendant claims that it did not have a mistaken belief with respect to Dunn's condition. Plaintiff admitted in her deposition that she does not know whether Defendant had any mistaken beliefs about her condition. Thus, there can be no genuine issue of material fact as to whether Defendant had a mistaken belief regarding Plaintiff's condition. Absent such a belief, Dunn cannot recover using this method.
E. Conclusion
Because Plaintiff has not demonstrated that she has a "handicap," there is no genuine issue of material fact for trial of Plaintiff's THRA claim. Therefore, the court grants summary judgment to Defendant on Plaintiff's THRA claim.
IV. FMLA Claim
Dunn alleges that Defendant improperly terminated her in retaliation for taking leave to which she was entitled under the FMLA. The FMLA provides that an employee is entitled to take up to twelve weeks of leave during a twelve-month period "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612 (a)(1)(D).
The Sixth Circuit has adopted the same burden-shifting framework in FMLA retaliation cases that it uses in other employment discrimination contexts where Plaintiff has no direct evidence of discrimination. Under this framework, Plaintiff must first establish a prima facie case of FMLA retaliation by showing: (1) she availed herself of a protected right under the FMLA, (2) she suffered an adverse employment action, and (3) a causal connection exists between her exercise of a right under the FMLA and the adverse employment decision. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001) (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064. 1066 (6th Cir. 1990)).
If Plaintiff can establish a prima facie case of retaliation, the burden then shifts to Defendant to articulate a legitimate nondiscriminatory reason for its decision. Id. at 315. If Defendant articulates such a reason, the burden then shifts back to Plaintiff to prove that the articulated reason "is in reality a pretext to mask discrimination." Id.
Dunn has failed to establish a prima facie case of retaliation, because she has failed to provide sufficient evidence of a causal connection between her election to take FMLA leave and her termination. A causal connection may be shown through circumstantial evidence, such as a proximity of time between the two events. White v. Burlington Northern Santa Fe Ry. Co., 310 F.3d 443, 459 (6th Cir. 2002). Nevertheless, "temporal proximity alone will not support an inference of retaliatory discrimination when there is no other compelling evidence." Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000).
Plaintiff was terminated two months after she elected to take FMLA leave. Although two months might be sufficient temporal proximity were there other evidence of a causal connection between Dunn's exercise of FMLA rights and her termination, she has not presented any additional evidence that Defendant's motive for retaliation was her taking FMLA leave. This failure is fatal to her claim.
While temporal proximity is Plaintiff's sole basis for asserting the requisite causal connection, Defendant has presented significant evidence tending to negate any inference that may arise from the temporal proximity of her election to take FMLA leave and her termination. Plaintiff had twice availed herself of such leave without penalty. Furthermore, she had a long, well-documented history of workplace violations. The most serious of those violations took place within days of her electing to take FMLA leave. If any temporal proximity is particularly persuasive here, it is the temporal proximity between Dunn's May 15. 2000 violation and her July 24, 2000 termination. Accordingly, because Plaintiff has failed to establish a causal connection between her election to take FMLA leave and her termination, she has not established a prima facie case for FMLA retaliation, and Defendant is entitled to summary judgment on that claim.
V. Conclusion
For the foregoing reasons, the court GRANTS Defendant Sharp's motion for summary judgment on its THRA claim and its FMLA retaliation claim and DISMISSES this action.