Opinion
Civil Action No. 3:04-CV-205-B.
February 24, 2005
MEMORANDUM ORDER
Before the Court is Defendant's Motion for Summary Judgment (the "Motion"), filed August 26, 2004. After review of the pleadings and evidence filed with the Court, the Court GRANTS the Motion for the following reasons.
I. Factual and Procedural History
Plaintiff Patricia A. Jordon ("Jordon") was employed by Defendant Dallas Area Rapid Transit ("DART") as a bus operator in DART's Transportation Department from October 12, 1998 until April 16, 2003. (Def.'s App. to Mot. Summ. J. ["App."] at 1, 36). At the time of Jordon's employment with DART, DART's Hourly Employment Manual (the "Manual") was in effect. (App. at 1). Jordon received a copy of the Manual and signed a statement recognizing her responsibility to read, become familiar with, and adhere to the policies set forth in the Manual. (App. at 139, 163). On October 23, 2002, Jordon sustained injuries to her neck and shoulder areas when a panel from a DART bus fell on her. (App. at 123-24). That same day, Jordon began an extended absence from her full duty work assignment as a bus operator due to her injuries. (App. at 25).
According to DART, it is DART's goal to find alternative work assignments for employees who are temporarily physically or mentally unable to perform their regular job duties as a result of an on- or off-the-job injury or illness. (App. at 23). Alternative duty assignments of up to 60 working days may be approved by the Manager of DART's Lost-Time Programs, but approval to extend an alternative duty assignment beyond 60 consecutive working days or 60 total working days in a 12-month period must be authorized by a majority of a committee (the "Committee") consisting of the employee's departmental vice-president, the vice-president of Human Resources, and the employee's authorized representative. ( Id.). Employees that are not released for regular duty within 60 days without obtaining an extension may be subject to discharge. ( Id.).
On December 26, 2002, Jordon made an Alternative Duty Extension Request. (App. at 25-26). According to DART, that request required Jordon to provide: 1) a Physician's Physical Capabilities Assessment form evidencing demonstrable continuous improvement in Jordon's condition; and 2) a complete prognosis for her return to full duty assignment. (App. at 26). The Return to Work Recommendation submitted by Jordon indicated that she would be able to perform alternative duty but would not be able to resume her normal duties. (App. at 29). The form did not indicate when Jordon could return to her duties as a bus operator. (App. at 26, 29). As a result of the Return to Work Recommendation, Jordon was assigned to a temporary, and less physically demanding, position as a Transit Center Assistant. (App. at 26).
Jordon's Alternative Duty Extension Request was considered by the Committee on January 15, 2003. (App. at 26). The Committee denied the requested extension. ( Id.). Because Jordon did not receive an extension, she was required under section 3.7 of the Manual to either provide a full duty work release or be subject to the disqualification procedures set forth in section 5.4 of the Manual. (App. at 26, 31). On January 23, 2003, Jordon provided a full duty return-to-work release from her doctor and returned to work as a bus operator. (App. at 26).
On February 20, 2003, Jordon again began to miss time from work by reason of the same on-the-job injury she sustained in October 2002. ( Id.). At or around that time Jordon submitted a second Alternative Duty Extension Request, but did not submit either a Physician's Physical Capabilities Assessment form or a return-to-work prognosis. ( Id.). On March 26, 2003, the Committee met and denied Jordon's second request for an extension because she failed to provide the required information and failed to provide evidence of demonstrable continuous improvement in her condition. ( Id.). By letter dated March 26, 2003, Jordon was advised of the Committee's decision that she was required to provide a full duty work release by April 1, 2003, or face the disqualification procedures of Section 5.4 of the Manual. (App. 26, 35).
DART did not receive the required work release by April 1, 2003. (App. at 37). On April 4, 2003, Jerry Martinez, Manager at DART's Oak Cliff Bus Operations Division, sent Jordon a Notice of Proposed Employment Disqualification — Non-Disciplinary Discharge. (App. at 37, 40-43). In this Notice Jordon was informed of alternatives to discharge such as approved leave, disability benefits, temporary assignments, and job transfers. (App. at 37, 41-42). Although Jordon met with Martinez on April 14, 2003, there is no evidence in the summary judgment record that Jordon sought to pursue any of the alternatives available to her. (App. at 37).
On April 16, 2003, Jordon was terminated from DART. (App. at 27, 37). DART contends that Jordon was terminated because she was absent a total of 97 days from her job as a bus operator between her October 2002 injury and the date of her discharge, in excess of the 60 work days allowable under the Manual. (App. at 27). The termination was further based on the fact that Jordon never provided a release by her doctor allowing her to return to full duty as a bus operator. (App. at 27, 37). Jordon did not appeal her dismissal through the employee grievance procedure set forth in the Manual. (App. at 37). Neither James Duff, Manager of DART's Lost-Time Programs department, nor Martinez received a request from Jordon for a reasonable accommodation for any alleged disability. (App. at 27, 37).
On May 6, 2003, Jordon filed a Charge of Discrimination with the EEOC alleging that DART failed to reasonably accommodate her disability by denying her February 20, 2003 Alternative Duty Extension Request and by terminating her on April 16, 2003. (App. at 183). The Texas Commission on Human Rights dismissed the Charge on September 16, 2003, and the EEOC did the same on November 18, 2003. (App. at 185, 186-87). In April 2003, Jordon claims to have applied for a position with DART as a Police Telecommunicator. (App. at 142-43, 151-54). DART, however, has no record that Jordon ever applied for that position. (App. at 168).
In September 2003, Jordon applied for a DART Police Officer position. (App. at 165). DART claims that Jordon was not considered for that position beyond the application process because she did not properly complete a detailed application supplement required to allow the DART Police Department to conduct a thorough background check. ( Id.). DART contends that the DART Police Department was unaware that Jordon had previously filed a Charge of Discrimination with the EEOC; therefore, the fact that Jordon had filed such a Charge played no role in DART's decision-making process. Id.
Also in September 2003, Jordon re-applied for a bus operator position with DART. (App. at 169). John Myers, an Assistant Vice-President with DART's Bus Operations department, determined that Jordon was not eligible for re-hire because of her poor attendance record. (App. at 49-118, 167, 169). Even before her October 2002 on-the-job injury, Jordon had received several written warnings for attendance. (App. at 49-118). Myers contends that he was unaware that Jordon had filed a Charge of Discrimination in May 2003 and that the filing of that Charge played no role in his recommendation that Jordon not be re-hired. (App. at 169).
On February 1, 2004 Jordon filed a second Charge of Discrimination alleging that DART failed to re-hire her in retaliation for her filing her first Charge. (App. at 188). On March 31, 2004, the EEOC dismissed the Second Charge. (App. at 189). Jordon filed suit against DART on February 2, 2004, asserting claims of disability discrimination and retaliation under the Americans With Disabilities Act ("ADA"). On August 26, 2004 DART filed a motion for summary judgment. To date, Plaintiff has not responded to that Motion. DART's Motion is thus ripe for decision.
II. Analysis
Jordon's lack of response to DART's Motion means that Plaintiff has not designated specific facts showing that there is a genuine issue for trial and is therefore relegated to her unsworn pleadings, which are not summary judgment evidence. Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v. Westowne Assoc., 929 F.2d 160, 165 (5th Cir. 1991)). While Jordon's failure to respond does not permit the Court to enter a "default" summary judgment, the Court is allowed to accept the evidence presented by DART as undisputed. Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); see also Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (holding a party opposing summary judgment is required to identify specific evidence in the record and articulate the precise manner in which that evidence supports her claim). Therefore, this Court accepts DART's evidentiary assertions as undisputed. See Ragas, 136 F.3d at 458 (noting the court does not have the duty to sift through the record in search of evidence to support a party's opposition to summary judgment); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 17 (5th Cir. 1992) (same).
The Court takes note that Jordon proceeds in this matter pro se and in forma pauperis. As part of the in forma pauperis inquiry, the magistrate judge directed Jordon to answer certain questions in order to flesh out the grounds underlying her claims. Because Jordon's answers to those questions were submitted under the penalty of perjury, see 28 U.S.C. § 1746, the Court may rely on them as summary judgment evidence. See Bookman, 945 F.Supp. at 1003. Nevertheless, Jordon carries the burden of proof at trial, and as the summary judgment nonmovant, she must designate specific facts in the record to create genuine issues of fact precluding summary judgment. Id. The district court does not have a duty to search the entire record to find evidence supporting the nonmovant's opposition. Jones v. Sheehan, Young, Culp, P.C., 82 F.3d 1334, 1338 (5t Cir. 1996). Rather, Jordon must "identify specific evidence in the record, and articulate the `precise manner' in which that evidence support[s] [her] claim." Bookman, 945 F.Supp. at 1004 (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). Jordon's failure to respond to DART's summary judgment motion means that she has not met "her burden of designating specific facts showing that there is a genuine issue for trial." Id.
Nor does Jordon's pro se status absolve her from her obligation to set forth specific facts supporting her claims. Id.; Jones, 82 F.3d at 1338. "There is a point at which even pro se litigants must become responsible for the prosecution of their own cases if their claims are to warrant the court's attention." Bookman, 945 F.Supp. at 1005. Thus having failed to file a response to DART's motion for summary judgment, the Court takes the evidence presented by DART as undisputed.
A. Discrimination under the ADA
Jordon claims that she was denied a reasonable accommodation for her disability because DART denied her Alternative Duty Extension Request of February 20, 2003. (Compl. ¶ A); (App. at 183). To make out a prima facie case of discrimination under the ADA, Jordon must show that she is a qualified individual with a disability and that she suffered an adverse employment action by reason of that disability. See Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998). DART contends that it is entitled to summary judgment because 1) Jordon is not "disabled" within the meaning of the ADA; 2) Jordon could not perform the essential functions of her job either with or without accommodation; and 3) Jordon was terminated because of a legitimate nondiscriminatory reason.
To qualify as "disabled" within the meaning of the ADA, an individual must meet what the United States Supreme Court has characterized as a "demanding standard." See Toyota Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). This standard requires that an individual have a physical or mental impairment that substantially limits one or more of her major life activities. 42 U.S.C. § 12102(2)(A). Here, Jordon suffered an injury when a panel from a DART bus fell on her head. (App. at 32, 123). DART does not dispute that Jordon sustain this injury and that it impaired her job functioning. But "[m]erely having an impairment does not make one disabled for purposes of the ADA." Toyota, 534 U.S. at 195. Instead, Jordon must show that her injury limits her "major life activities" in a "substantial" way. 42 U.S.C. § 12102(2)(A). To make that showing, she must show that her impairment "prevents or severely restricts" her from engaging in activities that "are of central importance to most people's daily lives." Toyota, 534 U.S. at 185. The Supreme Court provided by way of example in Toyota that "household chores, bathing, and brushing one's teeth" are such activities. Id. at 186. The regulations further provide that "major life activities" include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2. Thus, the focus of the disability inquiry turns on the impact that Jordon's injury had on everyday, routine aspects of her daily life rather than its impact on her ability to perform specific tasks associated with her job as a bus operator at DART. Jordon must also show that the impact of her impairment was permanent or long term. Toyota, 534 U.S. at 198.
DART first argues that Jordon's injury did not prevent or severely restrict her from performing activities of importance to the daily lives of most people. For example, during the period of time that Jordon was not working at her full time position as a bus operator, she was still able to walk as part of her job duties as a Transit Center Assistant. (App. at 125). Furthermore, during this time period Jordon was able to drive a car, brush her teeth, dress herself, bathe, prepare her own lunches, and perform her duties as a Transit Center Assistant. (App. at 125-133). The Court notes from Jordon's deposition that Jordon was mildly restricted in performing some tasks. For example, Jordon testified that she experienced pain when rising from bed, drove slower than usual, was not able to perform some household chores, and needed some assistance in grooming her hair. (App. at 129-30, 132, 133). But simply because Jordon performed some activities "in a different manner, under different conditions, and using more time than the average individual in the general population" does not demonstrate that she was prevented or severely restricted from performing "major life activities." McClure v. Gen. Motors Corp., 75 Fed. Appx. 983, 2003 WL 21766539, at *1 (5th Cir. June 30, 2003) (not designated for publication).
DART further argues that, at most, Jordon's impairment was only temporary, rather than permanent or long term, as is required to show disability. Toyota, 534 U.S. at 198. Jordon's doctor released her in September 2003, and today she admits to only occasional pains from the injury, and is otherwise able to function normally. (App. at 123). In short, Jordon has failed to produce any summary judgment evidence showing that the impairment she suffered as a result of her October 2002 on-the-job injury substantially limited her performance of a major life activity over a long period of time. Toyota, 534 U.S. at 198; Anderson v. City of Dallas, 116 Fed. Appx. 19, 2004 WL 2428638, at *7 (5th Cir. Oct. 28, 2004) (not designated for publication). Jordon has therefore failed to raise a genuine issue of material fact as to whether she was "disabled" within the meaning of the ADA, and summary judgment in DART's favor is appropriate as to Jordon's claim of disability discrimination under the ADA. See Hamburger v. CAE Simuflite Training Int'l, Inc., 2004 WL 1359462, at * 3 (N.D. Tex. June 16, 2004).
B. Retaliation
Jordon also claims that she applied for and was denied three job positions with DART in retaliation for filing a Charge of Discrimination. To make out a prima facie case of retaliation under the ADA, a plaintiff must show: 1) engagement in an activity protected by the ADA; 2) an adverse employment action; 3) a causal connection between the protected activity and the adverse action. Reilly v. Dallas County Sheriff's Dep't, 2001 WL 1356925, at *7 (N.D. Tex. Aug. 15, 2001). "Once the plaintiff has established a prima facie case, the defendant must come forward with a legitimate, non-discriminatory reason for the adverse employment action." Id. (quoting Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999)). If the defendant advances such a reason, the plaintiff must then come forward with sufficient evidence that the proffered reason is a pretext for retaliation and, ultimately, must show that "but for" the protected activity, the adverse employment action would not have occurred. Id.
First, Jordon asserts that she applied for a position as a DART Police Telecommunicator in April 2003. (App. at 151-54). DART has no record that Jordon ever applied for this position. (App. at 168). DART argues that no retaliation is shown as a matter of law because Jordon applied for the position in April 2003 but did not file her first Charge of Discrimination until May 2003. DART, however, provides no evidence as to the date on which the decision, if any, was made to not hire Jordon for this position; it is possible that DART may not have even considered Jordon's application until after she had filed her Charge. Nevertheless, DART also argues that Jordon has failed to put forth any evidence that DART denied her application because she had filed a Charge of Discrimination. Because Jordon has failed to meet her summary judgment obligation, the Court finds that DART is entitled to summary judgment on Jordon's retaliation claim arising from her April 2003 application for a Police Telecommunicator position.
Second, Jordon applied for a DART Police Officer position in September 2003. DART asserts, however, that Jordon was not considered for that position because she failed to fully complete the detailed Application Supplement that is required to allow the DART Police Department to conduct a thorough background check on each applicant. (App. at 165). The Court finds that DART has presented evidence of a legitimate, non-retaliatory reason for the employment actions about which Jordon complains. By failing to produce any evidence to dispute DART's proffered reason for its employment decision, Jordon has failed to create a genuine issue of material fact as to whether DART's reason is pretext for retaliation.
Third, Jordon applied to be re-hired as a bus operator in September 2003. DART contends that Jordon was not eligible for re-hire because of her poor attendance history, which included several written warnings she had received while working for DART prior to her on-the-job injury. (App. at 167, 169). The Court finds that DART has presented evidence of a legitimate, nonretaliatory reason for the employment actions about which Jordon complains. By failing to produce any evidence to dispute DART's proffered reason for its employment decision, Jordon has failed to create a genuine issue of material fact as to whether DART's reason is pretext for retaliation. Therefore, DART's Motion on Plaintiff's retaliation claims is GRANTED.
III. Conclusion
For the foregoing reasons, the Court GRANTS DART's Motion for Summary Judgment on all of Jordon's claims pending against it.