Summary
discussing Gupta exception but ultimately deciding that claim was dismissed for failure to exhaust administrative remedies because the retaliation claim was based on pre-charge retaliatory acts
Summary of this case from Phongsavane v. PotterOpinion
Civil Action No: SA-04-CA-084-XR.
March 14, 2005
ORDER
On this date, the Court considered Defendant's Motion for Summary Judgment (docket no. 25) and Plaintiff's response. Plaintiff sues her former employer for disability discrimination and retaliation under the Americans with Disabilities Act. For the reasons stated below, the Court GRANTS Defendant's motion.
Facts and Procedural Background
Plaintiff began her employment as a housekeeper with Defendant on or about August 2002. Seven years prior to her employment, Plaintiff was injured in a motor vehicle accident that caused fractures to both her legs. She has permanent pins in her right knee and left ankle.
Initially in 2002, Plaintiff was assigned to empty trash receptacles in the USAA bank building. She was subsequently assigned (along with another employee) to cleaning restrooms located in the bank building. At some point Plaintiff and the other employee were informed that they also needed to clean baseboards. Plaintiff alleges that on or about April 16, 2003, her supervisor ordered her to scrub the baseboards on both her knees and she explained that she was unable to comply because of a medical condition. Pursuant to her supervisor's request she provided a doctor's note to that effect on April 18. She alleges that she was fired on April 30 and informed that she was terminated because she could not perform her job as a housekeeper. Plaintiff alleges that in response she requested a demotion to trash collection, but that demotion request was denied.
Defendant had a contractual agreement with USAA to provide certain cleaning services.
Cleaning duties included: cleaning the sink, soap bottles, mirrors, doors, replacing paper towels, replacing toilet paper and sanitary products, taking out trash, sweeping and mopping the floor and cleaning toilets.
Defendant contends that Plaintiff was subsequently told she did not have to be on her knees to clean the baseboards and cleaning while bending over was sufficient. Discussion was also had over whether a long-handled brush could be used. Defendant contends that Plaintiff refused these suggestions because she objected to cleaning baseboards completely, stating it "wasn't our job description."
Summary Judgment Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required 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); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).
Analysis
Retaliation Claim
Defendant asserts that it is entitled to summary judgment because Plaintiff failed to allege a retaliation claim in her charge of discrimination filed with the Equal Employment Opportunity Commission. Plaintiff concedes that she did not allege a retaliation charge at the EEOC proceedings, but argues that this omission should not bar her claim because the retaliation claim is reasonably related to the underlying disability discrimination claim.
Plaintiff's reliance on cases that excuse the exhaustion requirement is misplaced. In this case it is undisputed that Plaintiff did not check the retaliation box contained in the EEOC charge. Further, nowhere in the text of the charge is there any reference to any retaliation. Finally, if any retaliatory act occurred, Plaintiff was aware of the act prior to the time she filed her charge on May 8, 2003. Summary Judgment is GRANTED as to Plaintiff's retaliation claim. See Miller v. Southwestern Bell Telephone Co., 51 Fed. Appx. 928 (5th Cir. 2002), cert. denied, 538 U.S. 908 (2003) ("the federal anti-discrimination statutes, most notably, Title VII have consistently required claimants to fill in the appropriate corresponding boxes when filing their claim for unlawful employment action. Second, the same procedural requirements for Title VII have been interpreted to apply to EEOC charges filed under the ADA as well. This court has also held that the ADA incorporates by reference the administrative procedural requisites found in Title VII, and that adherence to these prerequisites is necessary prior to commencing an ADA action in federal court against an employer. The similarity between Cable [a 7th Circuit case] and the instant case is marked, particularly with the absence of narrative or other supplemental EEOC materials indicating that Miller was seeking redress for unlawful retaliation. The information, or lack thereof, included on Miller's filed EEOC charge creates a strong presumption in favor of a finding of failure to exhaust administrative remedies. Further compounding the difficulty for Miller is the timing of the alleged retaliation and his filing of the complaint. Miller would be able to file a supplemental or additional charge if the retaliation claim, in the parlance of this court, "grow[s] out" of his claims for disability. SWBT is correct to emphasize that the alleged adverse employment action prompting Miller's claim for retaliation occurred prior to the filing of his discrimination charge. Since the alleged retaliation occurred prior to his filing of the complaint, Miller was well aware of the conduct and actions that would give rise to his claim of retaliation under the ADA. Given these factual circumstances, Miller's retaliation cause of action would not fall under the Gupta exception; thus he is precluded from filing a new EEOC charge based on disability. . . . This court concludes that because Miller did not check the correct box on the EEOC complaint form or otherwise disclose his retaliation claim and thereby exhaust his administrative remedies, he is procedurally precluded from asserting a retaliation claim under the ADA.").
It appears that Plaintiff may be arguing that she was also retaliated against when, after her discharge, Defendant contested her eligibility for unemployment compensation benefits. Neither party provides the Court the date that Defendant filed its contest with the Texas Work Force Commission. In any event, the Court concludes that an employer's post-discharge contest of a former employee's entitlement to unemployment compensation is not an adverse employment act which would entitle her to raise a retaliation claim. See Khan v. United Recovery Systems, Inc., No. CIV. H-03-2292, 2005 WL 469603 (S.D. Tex. Feb 28, 2005) ("Plaintiff has not cited to (and the court's independent research has not unearthed) any authority whatsoever for the proposition that a defendant makes an ultimate employment decision when it takes a position adverse to that of the plaintiff at the plaintiff's unemployment compensation hearing. Simply put, this "action" is not on par with the types of actions the Supreme Court and the Fifth Circuit have specified as sufficient to support a retaliation claim.").
Does Plaintiff suffer from a disability?
A plaintiff makes a prima facie showing of ADA discrimination by establishing that she 1) is disabled or is regarded as disabled; 2) is qualified for the job; 3) was subjected to an adverse employment action on account of her disability; and 4) was replaced by or treated less favorably than non-disabled employees. McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir. 2000).
Plaintiff does not argue that she was "regarded as" disabled.
Defendant asserts that Plaintiff is not disabled and that her knee condition does not "substantially limit" any of her "major life activities." See Vitale v. Georgia Gulf Corp., 82 Fed. Appx. 873 (5th Cir. 2003) ("As one of the `essential elements' of his claim, Vitale must prove that he `was a qualified person with a disability' at the time of the alleged discrimination, which means a person 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). A `reasonable accommodation' includes `job restructuring, part-time or modified work schedules, reassignment to a vacant position,' and general concessions involving training and facilities. 42 U.S.C. § 12111(9)").
Both parties agree, that with the exception of kneeling, Plaintiff was able to perform all her other housekeeping tasks. Further, Plaintiff has been employed as a home-care provider performing the following tasks: food preparation, assisting an adult male with his braces, taking him to the bathroom, and assisting him into his wheelchair. She has brought forth no evidence that she is limited in any other activity. Plaintiff's knee condition is not a disability as defined under the ADA. See Miller v. Airborne Exp., No. 3:98-CV-0217-R, 1999 WL 47242 (N.D. Tex. Jan 22, 1999) (though "Miller's knee injury may substantially limit his ability to crawl, kneel, squat, or climb, this Court finds that those actions do not constitute major life activities, as defined under the ADA. See, e.g., Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 n. 2 (5th Cir. 1996) (finding as a matter of law that climbing does not qualify as a major life activity under the ADA). . . . Having determined that Miller is not substantially limited with regard to any major life activities other than working, this Court will now consider whether Miller's knee injury substantially limits him in the major life activity of working. See 29 C.F.R. App. § 1630.2(j). The EEOC regulations accompanying the ADA include a section which specifically defines the meaning of "substantially limits" when used in conjunction with the major life activity of working: 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) (1998). It is undisputed that because of his knee injury Miller can no longer perform the physical tasks required for Airborne's driver/dock worker position. However, Miller has failed to introduce any evidence demonstrating that he is restricted from performing jobs other than this single, particular job."). Indeed, Plaintiff here fails to introduce any evidence demonstrating that she is restricted from performing her housekeeping position. She concedes that if she merely stooped or used a long-handled brush to clean the baseboards she could fully perform her job.
As stated earlier, the parties dispute whether kneeling was actually a required task.
Because the Court concludes that Plaintiff was not disabled for purposes of the ADA, the Court does not address whether Defendant failed to make any reasonable accommodations.
Conclusion
The Court concludes that, for the reasons stated above, Defendant's motion for summary judgment (docket no. 25) is GRANTED. This case is dismissed with prejudice. The Clerk is ORDERED to prepare a judgment in accordance with this Order that Plaintiff take nothing. Defendant has ten days from the date of Judgment to submit a bill of costs in the form required by the Clerk's office.