Opinion
No. 4:03-CV-604-A.
September 15, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, American Airlines, Inc., ("American") for summary judgment. Plaintiff, Christine A. Baker, ("Baker") filed an untimely response, which the court has nevertheless taken into consideration. The court, having reviewed the motion, the response, the record, and applicable authorities, concludes that the motion should be granted.
On August 26, 2004, one day after the deadline to respond to defendant's motion, plaintiff filed a motion for extension of time to respond. The extension was denied, and Baker filed a response on September 8, 2004.
I. Plaintiff's Complaint
Baker alleges in her complaint that: She is a fifty-nine year old white female who is disabled as a result of carpal tunnel syndrome and severe asthma. Beginning in April 2000, she was subjected to a hostile work environment and disparate treatment because of her alleged disabilities. She was terminated on September 28, 2001, because of her alleged disabilities and age.
Although the complaint states that Baker is a "white male individual," the court is convinced that the statement was a clerical error and that Baker is female.
II. American's Motion for Summary Judgment
American argues that it is entitled to summary judgment for the following reasons:
1. Claims of discrimination based on acts prior to September 25, 2001, are barred by limitations.
2. Baker cannot make a prima facie case of disability discrimination, because she has no evidence that she is disabled or regarded as disabled or that she suffered an adverse employment action because of any alleged disability.
3. American has articulated legitimate, nondiscriminatory reasons for furloughing Baker; and she has no evidence of pretext.
4. Baker is not entitled to any accommodation and a failure to accommodate claim is barred by limitations and as exceeding the scope of her EEOC charge.
5. Baker has no evidence that she was harassed because of a disability.
6. Baker's claim of age harassment is time-barred, exceeds the scope of her EEOC charge, and has no evidentiary support.
7. Baker cannot establish a prima facie case of age discrimination, and has no evidence that American's reasons for furloughing plaintiff were a pretext for discrimination.
8. Baker cannot establish a prima facie case of retaliation, and cannot show that any protected action was a "but for" cause of an adverse employment action.
9. Baker has not pleaded or proved a "mixed motive" case.
10. No rational fact finder could find discrimination or retaliation.
III. Uncontested Facts
Baker was employed by American from 1982 to 2001. Def.'s app. at 12. She worked as a Flight Attendant Crew Scheduler beginning around 1997, with Debra Curtis ("Curtis") acting as her supervisor from 1998 onward. Def.'s app. at 6, 12. Crew Schedulers were responsible for ensuring that each flight had a sufficient number of flight attendants consistent with FAA regulations. Def.'s app. at 5-6, 13-14. At least 19 complaints were made against Baker by flight attendants complaining of her attitude and conduct (although the validity of those complaints is disputed). Def.'s app. at 21-40, 82-112.After having carpal tunnel surgery, Baker returned to work around September 1997 with no restriction on her ability to perform the essential functions of her position. Def.'s app. at 16-17, 48-49. From October 16, 1998, until around January 31, 2000, she was off work due to an on-the-job injury. Def.'s app. at 72-74.
In April 2000, Baker was required to undergo a fitness-for-duty examination. Def.'s app. at 6, 48-49. Baker denied having any pain or physical problems in performing her work, and the exam did not identify any physical reasons preventing her from performing the essential functions of her position. Def.'s app. at 16, 48-49. On or around October 3, 2000, Baker received a letter from American informing her that she had been overpaid during her absence and requesting arrangements for repayment. Def.'s app. at 74-75, 113. She refused any repayment. Def.'s app. at 75.
From mid-April 2001 to July 2001, Baker was off work due to asthma, bronchitis, and sinusitis allegedly triggered by construction dust at her workplace. Def.'s app. at 56-57. Upon her return, she was allowed to wear a mask as a precaution. Def.'s app. at 58. Although Baker was initially seated next to the smoking room, she was allowed to move to another desk within a week of making such request. Def.'s app. at 65-66.
On September 28, 2001, Baker was terminated from her position at American as part of a reduction in force following the events of September 11, 2001. Def.'s app. at 8, 76, 114 Baker filed a charge of discrimination with the EEOC on July 22, 2002. Def.'s app. at 1, 17. After receiving a right-to-sue letter from the EEOC, she filed the instant suit on June 17, 2004.
American uses the term "furloughed" or "laid off" rather than terminated, but any distinction is irrelevant to the determination of this action.
IV. General Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c). Anderson, 477 U.S. at 248, 256. To meet this burden, the non-movant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597.
V. Analysis
A. Legal Framework for Employment Discrimination Claims.
In the absence of direct evidence of an employer's intent to discriminate, a plaintiff may rely on circumstantial evidence, which is analyzed under the evidentiary burden-shifting framework of McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-04 (1973); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This framework applies to the ADA, the ADEA, and retaliation cases. See, e.g., Sandstad v. C.B. Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002) (ADEA); Byers v. Dallas Morning News, 209 F.3d 419, 427 (5th Cir. 2000) (retaliation) Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999) (ADA). First, plaintiff must establish a prima facie case. St. Mary's Honor Ctr., 509 U.S. at 506. If the plaintiff is successful, the burden shifts to defendant to articulate a legitimate non-discriminatory reason for its actions. Id. at 506-7. If defendant does so, the burden shifts to plaintiff to produce summary judgment evidence that defendant's articulated reason is a pretext for discrimination.Id. at 507-8. Even if plaintiff meets this burden, summary judgment may still be appropriate if "no rational fact finder could conclude the action was discriminatory." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
B. Limitations.
As a prerequisite to a claim under either the ADA or ADEA, a plaintiff must exhaust administrative remedies. See 42 U.S.C. § 12117; 29 U.S.C. § 626 (d) (2). Since Texas has an administrative mechanism to address complaints of discrimination, both the ADA and ADEA require plaintiffs to file charges of discrimination within 300 days of the alleged violation. See, e.g., Gray v. Sears, Roebuck, and Co., Inc., 131 F. Supp. 2d 895, 900 (S.D. Tex. 2001). Baker filed her charge of discrimination with EEOC on July 22, 2002. Therefore, any claims based on acts before September 25, 2001, are time-barred, absent an equitable exception to the limitations period.
The continuing violation doctrine is an equitable exception to the limitations period that can, in "limited circumstances," accommodate plaintiffs who show "a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of this pattern or policy can be considered timely." Celestine v. Petroleos de Venezuella, S.A., 266 F.3d 343, 351-52 (5th Cir. 2001). The continuing violation doctrine requires more than a series of discrete discriminatory acts. Id. at 352. Instead, the plaintiff must show "an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Id. (citing Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998)). "The focus is on what event . . . should have alerted the average lay person to act to protect his rights." Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir. 1997). In her charge of discrimination, Baker checked the box for "Continuing Action." Def.'s app. at 1. However, the court concludes that her claims are based on discrete acts that do not constitute part of a continuing violation. Therefore, any claims arising from acts before September 25, 2001, are time-barred under both the ADA and ADEA.
C. Disability Discrimination.
To establish a prima facie case of disability discrimination, a plaintiff must show that she was: (1) disabled; (2) qualified for the job; and (3) subjected to an adverse employment action because of her disability. The ADA defines disability as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) having a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2).
Baker has failed to offer evidence that she was disabled at the time of her termination, under any definition of the ADA. She has not alleged that she had a record of impairment. And she candidly admits that she had no impairment that interfered with a major life activity until July 2002, over nine months after her termination. Def.'s app. at 50.
To prevail on a "regarded as disabled" claim, a plaintiff must show that her employer mistakenly believed: (1) that she had a physical impairment that substantially limited one or more major life activities; or (2) that an actual, nonlimiting impairment substantially limited one or more major life activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). Where employment is the major life activity in question, a plaintiff must show at a minimum that the employer regarded her as disabled in the ability to perform a "broad range of jobs," not merely that the employer believed she had some impairment or that she was incapable of performing a particular job. Id. at 491;Pegram v. Honeywell, Inc., 361 F.3d 272, 287 (5th Cir. 2004).
In her deposition, Baker asserts that American regarded her as disabled, based on: (1) American requiring her to take the fitness-for-duty exam; (2) American allowing her to come back to work while construction was allegedly ongoing; and (3) Curtis's statement that Baker "could not handle the workload," when Baker was terminated. Def.'s app. at 68. None of these assertions indicate that American considered her incapable of performing a "broad range of jobs." Furthermore, Baker admitted that she has no evidence, other than the assumption that Curtis's comment was discriminatory, that American terminated her because it regarded her as disabled. Def.'s app. at 68-69.
Because Baker had failed to adduce evidence that she was disabled at the time of her termination, the court concludes that American is entitled to summary judgment on her disability claims. Therefore, the court does not address American's remaining grounds concerning the disability claims.
Baker apparently concedes this point since her response does not address the disability claims.
D. Age Discrimination.
1. Prima Facie Case.
The only age discrimination claim before the court concerns Baker's termination. She has failed to establish aprima facie case concerning that claim.
In her deposition, Baker alleged that she was harassed because of her age. Def.'s app. at 47. However, the age harassment allegations were not pleaded, exceed the scope of her charge to the EEOC, and are time-barred as discussed above. Baker apparently concedes this point, as her response addresses only the termination claim.
In Baker's response to American's motion for summary judgment, she argues, without citing any authority, that a prima facie case requires: "that (1) she was in a protected class, (2) that she was qualified for the job, (3) that she was terminated, and (4) that she was replaced by or others not in the protected age group were kept or employed." Pl.'s resp. at 5. Under this standard, she argues that American admitted to a prima facie case in its answer. Pl.'s resp. at 5-6 app. at 2. Indeed, American's answer is the only document provided in Baker's appendix to her response. Although the response makes allegations referring to the oral deposition of Curtis, no transcript of that deposition or any other summary judgment evidence is provided.
Baker's arguments fail for several reasons. Most importantly, she applies the wrong legal standard. "In a reduction-in-force case, a plaintiff makes out a prima facie case by showing (1) that he is within the protected age group; (2) that he has been adversely affected by the employer's decision; (3) that he was qualified to assume another position at the time of the discharge; and (4) `evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.'" Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991)).
Baker has failed to produce "evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." See Nichols, 81 F.3d at 41. American's admission that it "retained employees who were younger . . ., had less experience . . ., and less seniority that Plaintiff" does not satisfy this element in view of American's denial "that younger employees were treated better than Plaintiff." Pl.'s app. at 2. American presents evidence that a total of ten employees from Flight Attendant Crew Scheduling were furloughed, with seven under the age of 40 and three over the age of 40, and Baker admits that only two people senior to her were released at that time. Def.'s app. at 8, 76. Furthermore, American presents evidence that of three people reassigned to Crew Scheduling after the termination, two were over the age of 40. Def.'s app. at 116.
In her deposition, Baker asserts that the three reassigned employees were younger than her. However, she admits that she has no personal knowledge to support that assertion and that her allegations are based on the unsubstantiated gossip of a coworker. Neither an affidavit from the coworker nor other summary judgment evidence has been produced to rebut American's evidence.
Baker's other bases for her allegations also fail to raise an issue of material fact. Admittedly, she only assumes that Curtis's statement that she "could not handle the workload" was discriminatory. Def.'s app. at 41-42. Furthermore, the remark is facially neutral and does not indicate age-based animus, which is required for an oral statement to constitute evidence of discrimination. Sandstad, 309 F.3d at 300. Likewise, Baker's contention that she was terminated due to her salary and seniority is belied by her admission that only two of the terminated employees were senior to her. Def.'s app. at 76-77. Even if true, discrimination based on salary, seniority, or retirement benefits cannot create a cause of action under the ADEA without other evidence of age discrimination. Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152-53 (5th Cir. 1995). Therefore, Baker has failed to produce evidence of a prima facie case of age discrimination.
2. Pretext.
In addition, Baker has failed to produce summary judgment evidence that American's asserted reasons for terminating her were a pretext for discrimination. American presents evidence that the termination was part of a reduction in force made necessary by the events of September 11, 2001, and their subsequent effects on the airline industry, Def.'s app. at 7, and that its supervisors were required to rank their employees on the basis of four criteria, divide the employees into groups based on the rankings, and select a required number of employees for termination from the bottom of the list, Def.'s app. at 7. Curtis's evidence is that she followed American's procedure in ranking her employees and that Baker was ranked last among all employees in Flight Attendant Crew Scheduling. Def.'s app. at 7. American's evidence provides legitimate, non-discriminatory reasons for Baker's termination, thus shifting the burden to Baker to show that the assertions are a pretext for discrimination.
Although her response makes conclusory denials of American's assertions, Baker has failed to provide any summary judgment evidence to support those denials. Furthermore, in her deposition, she admits that she has no evidence that American's asserted reasons for termination were a pretext for discrimination. Def.'s app. at 147. Therefore, Baker has failed to create a genuine issue of material fact concerning her age discrimination claim, and summary judgment is appropriate.
Rule 56(c) clearly states that a party may not rest on allegations or denials of the pleadings, but must set forth specific facts showing there is a genuine issue for trial "by affidavits or as otherwise provided by this rule." Fed.R.Civ.P. 56(c). Although the response makes reference to Curtis's deposition, it fails to include a transcript of the deposition or any other evidence that could support the denial of summary judgment.
E. Retaliation.
To survive a motion for summary judgment on her retaliation claims, a plaintiff must produce evidence to show that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. Seaman, 179 F.3d at 301. Baker has failed to produce evidence that she engaged in any protected activity under either the ADA or the ADEA. She has provided no evidence that she is disabled under the ADA, as discussed above, and she has not alleged any retaliation based on an age-related activity. Any retaliation based on American's alleged overpayment during her time off work does fall under the protected activities of either statute. Therefore, Baker has failed to produce evidence of retaliation, and summary judgment is appropriate. Because Baker has failed to establish a genuine issue of material fact with regard to any of her claims, the court does not address the remainder of American's grounds in support of its motion.
Although American addresses the possibility of a "mixed motives" issue in its motion, Baker's pleadings do not allege that American acted on "mixed motives" and Baker's response does not address the issue.
VI. ORDER
For the reasons discussed, the court concludes that American's motion for summary judgment should be granted. Therefore,The court ORDERS that Baker's cause of action be, and is hereby, dismissed with prejudice.