Opinion
Civil Action No. 02-404 SECTION "K" (2)
October 16, 2002
ORDER AND REASONS
Plaintiff, Roland Breech, filed this lawsuit against his former employer, Becon Construction Company, Inc. ("Becon"), alleging that defendant failed to rehire him because of his epilepsy in violation of the Americans with Disabilities Act ("ADA"). Record Doc. No. 1, Complaint. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) upon written consent of all parties. Record Doc. No. 10.
Becon moved for summary judgment on the basis that plaintiff cannot establish a prima facie case of disability discrimination. The motion is supported by excerpts from the transcript of plaintiff' s deposition, an affidavit and several exhibits. Record Doc. No. 12. Breech filed a timely opposition memorandum. He did not submit any additional evidence. Record Doc. No. 14.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED.
I. FACTUAL BACKGROUND
The following facts are considered undisputed solely for purposes of the pending motion for summary judgment. Breech has had epilepsy since 1985, when he began experiencing seizures three to four times per month. Defendant's Exh. A, Breech deposition at 81. However, plaintiff testified that the seizures have been controlled for many years by medication (Dilantin). Id. at 79, 83. He said that he suffers no side effects from the Dilantin. Id. at 93.
Breech testified that he experiences seizures once or twice a month, although he also stated that his last seizure had occurred more than six months before the deposition. Id. at 80-81. He said that his seizures only occur at night while he is asleep, that they are light and under control, and that he does not know he has had one unless someone tells him about it. Id. at 82-83, 88. He testified that he always takes his medication as prescribed and that he sees a neurologist every six months. Id. at 84, 93.
Plaintiff stated that he has never had surgery for his epilepsy and that he has never injured himself (except for biting his tongue) or anyone else as a result of his seizures. Id. at 83-84. He said he does not believe he is a danger to himself or anyone else on the job because his seizures are controlled by medication. Id. at 83. He testified that he has applied for Social Security disability benefits repeatedly but has always been denied because his epilepsy is controlled by medication. Id. at 103.
Breech stated that his doctor has restricted him to daytime employment because his seizures occur only at night while he is sleeping. Id. at 88. He said that he quit one job as a security guard some years ago because it involved night shift work. Id. at 90. He testified that he is currently restricted by the law of New Jersey, where he now resides, from operating a vehicle until he has been seizure-free for one year and that he has about six months to go on that restriction. Id. at 89-90. He stated that he will be able to drive after that time period elapses. Id. at 91.
Plaintiff testified that he has been regularly employed for the past 10 to 15 years as a security guard, a tennis instructor and most recently as a construction worker. Id. at 21-23. He said that he never had any problems performing his job duties because of his epilepsy and that he had revealed his epilepsy to his potential employer whenever he applied for a job. Id. at 25, 29-32, 36-37, 87. He testified that he is currently working for Loene Industries as a packing machine operator. Id. at 35.
Breech stated that he can walk, see, hear, speak, learn, work and care for himself. Id. at 88-90. He said that he plays golf once or twice a month and that he does all the housework and chores around his mother's house, where he lives. Id. at 93-94.
Breech testified that he worked as a pipe helper in Florida in 1999.Id. at 25. After that job was finished, he moved to Louisiana and was hired by Becon in Garyville. Id. at 29-30. He testified that following completion of that project, he reapplied with Becon and was hired to work on the Red Hills Project in Mississippi. Id. at 30-32. He was terminated from that job, according to defendant, for insubordination and putting his fellow workers in danger. Defendant's Exh. B, affidavit of K. Lowell Cranford. Although plaintiff alleges that he was fired for a parking violation, Defendant's Exh. A, Breech deposition at 33, the conflicting versions of that event are irrelevant to defendant's summary judgment argument that Breech cannot establish a prima facie case of disability discrimination in connection with Becon's failure to hire him a third time.
Breech reapplied for employment with Becon at its Garyville site and was accepted by its Project Craft Recruiter, Danny Keen, after telling Keen that he had epilepsy. Id. at 39; Defendant's Exh. B, Cranford affidavit. The offer was subject to Breech completing a post-offer physical examination and renewing his OSHA certification. Defendant's Exh. A, Breech deposition at 42-44.
Breech appeared for his physical examination as scheduled but never completed the examination. Id. at 52, 61-64, 69-70. The exact sequence of events leading to his failure to complete the examination and his subsequent efforts to complete his examination and his paperwork and to gain re-employment with Becon are unclear and/or in dispute. However, these events are immaterial to the pending motion for summary judgment.
It is undisputed that Becon decided not to rehire Breech. Plaintiff alleges that this decision was based on his epilepsy, while Becon contends that it had legitimate, nondiscriminatory reasons for its decision. Again, this fact dispute is not relevant to defendant's motion for summary judgment, which is based solely on its argument that Breech does not have a disability as defined by the ADA.
II. ANALYSIS
A. Standard of Review for Summary Judgment Motions
Summary judgment is appropriate when "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). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). An issue is "genuine" if the evidence is sufficient for a rational trier of fact to return a verdict for the nonmoving party. Id.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citingCelotex, 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; `the plaintiff [can]not rest on his allegations . . . to get to a jury without any `significant probative evidence tending to support the complaint.'" Id. at 713 (quotingAnderson, 477 U.S. at 249).
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof. assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
B. Plaintiff Fails to Establish a Prima Facie Case of Disability Discrimination
The ADA prohibits an employer from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, [or] the hiring, advancement, or discharge of employees." 42 U.S.C. § 12112 (a). Becon argues in its motion that Breech cannot establish a prima facie case of discrimination because his epilepsy is not a disability for ADA purposes.
To establish a prima facie case of discrimination under the ADA, a plaintiff must show that "(1) he or she suffers from a disability (2) he or she is qualified for the job; (3) he or she was subject to an adverse employment action; and (4) he or she was replaced by a non-disabled person or was treated less favorably than non-disabled employees." Burch v. Coca Cola Co., 119 F.3d 305, 320 (5th Cir. 1997) (quotation omitted) (emphasis added). Breech must therefore make a threshold showing that he has a "disability" for ADA purposes. Talk v. Delta Airlines Inc., 165 F.3d 1021, 1024 (5th Cir. 1999).
If plaintiff fails to carry his burden of establishing a prima facie case, the court need not consider the remaining steps in the familiar, burden-shifting evidentiary framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for cases brought under Title VII and equally applicable to ADA claims. Burch, 119 F.3d at 320; Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).
"A physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA." Dutcher v. Ingalls Shipbldg., 53 F.3d 723, 726 (5th Cir. 1995). A "disability" is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A) (emphasis added). "The phrase `substantially limits' sets a threshold that excludes minor impairments from coverage under the ADA." Equal Employment opportunity Comm'n v. Sara Lee Corp., 237 F.3d 349, 352 (citing Sutton v. United Airlines, Inc., 527 U.S. 471, 486-88 (1999)).
The ADA additionally defines disability as having "(B) a record of such an impairment; or (C) being regarded as having such an impairment."Id. § 12102(2)(B),(C). Neither of these definitions is at issue in the instant case.
Although the terms "substantially limits" and "major life activities" are not defined by the ADA,
the [Equal Employment Opportunity Commission ("EEOC")] has promulgated regulations that provide significant guidance in interpreting these terms. The EEOC definition of "major life activities" includes functions such as caring for oneself, preforming manual tasks, walking, seeing, hearing, speaking, breathing, working, lifting, reaching, sitting or standing. Whether an impairment "substantially limits" a major life activity is determined by considering (1) the nature and severity of the impairment; (2) its duration or expected duration; and (3) its permanent or expected permanent or long-term impact.Ortega v. Southwest Airlines, No. 98-2782, 1999 WL 1072543, at *3 (E.D. La. Nov. 24, 1999) (Clement, J.) Citing Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998); 29 C.F.R. § 1630.2(i), Appendix to Part 1630 — Interpretive Guidance on Title I of the ADA; 29 C.F.R. § 1630.2(j)(i)-(iii)) (emphasis added).
The EEOC has promulgated regulations and interpretive guidance under the ADA, even though the ADA did not grant it the right to do so. The Supreme Court has noted that, when "determining [the regulations'] validity is not necessary to decide this case, we have no occasion to consider what deference they are due, if any." Sutton, 527 U.S. at 480;accord Toyota Motor Mfg., Ky., Inc. v. Williams, 122 S.Ct. 681, 689 (2002); Murphy v. United Parcel Serv., 527 U.S. 516, 523 (1999). The Supreme Court has assumed the validity of the EEOC regulations in these recent cases.
Breech argues that he is substantially limited in the major life activity of working. The Supreme Court in Sutton noted that "there may be some conceptual difficulty in defining `major life activities' to include work;' nonetheless, it assumed without deciding that working is a major life activity and that the EEOC regulations interpreting the term substantially limits" are reasonable. Sutton, 527 U.S. at 491. The Fifth Circuit has since held that working is a major life activity. Equal Employment Opportunity Comm'n v. R.J. Gallagher Co., 181 F.3d 645, 654 n. 5 (5th Cir. 1999).
"When the major life activity under consideration is that of working, the statutory phrase `substantially limits' requires, at a minimum, that [plaintiff] allege [he is] unable to work in a broad class of jobs."Sutton, 527 U.S. at 491. The EEOC defines "substantially limited" in the major life activity of working as "`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.'" Id. at 492 (quoting 29 C.F.R. § 1630.2 (j)(3)(i)).
Becon argues that Breech's epilepsy is not a disability for ADA purposes because it is controlled by medication and does not substantially limit any of his major life activities, including working. The Supreme Court held "that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment." Sutton, 527 U.S. at 475. Therefore, "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is substantially limited' in a major life activity and thus `disabled' under the Act." Id. at 478.
The Court explained that a disability
exists only where an impairment "substantially limits" a major life activity, not where it "might," "could," or "would" be substantially limiting if mitigating measures were not taken. A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently "substantially limits" a major life activity. To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not "substantially limi[t]" a major life activity.
The definition of disability also requires that disabilities be evaluated "with respect to an individual" and be determined based on whether an impairment substantially limits the "major life activities of such individual." Thus, whether a person has a disability under the ADA is an individualized inquiry.Id. at 482-83 (quoting 42 U.S.C. § 12102 (2)) (emphasis added).
The Supreme Court cited epilepsy as an example of an impairment that may or may not be disabling with the use of medication. Id. at 488. "The use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting." Id. (emphasis in original). "[T]hose whose impairments are largely corrected by medication or other devices are not `disabled' within the meaning of the ADA." Id. at 486.
In the instant case, Breech has not made a prima facie showing, as he must to survive summary judgment, that he is disabled under the ADA. The evidence, consisting of his own testimony, reveals that his epilepsy is controlled by medication and that his infrequent nocturnal seizures do not substantially limit him in the major life activity of working. He has consistently worked over the past 10 years and is currently working, having always advised his employer that he has epilepsy. He is able to work without any restrictions except that he refrain from working at night.
Breech's opposition memorandum does not cite any evidence that creates a triable factual dispute. His only evidence of his alleged limitations is that he lives with his mother because he needs to stay with someone at night in case he has a seizure that requires medical help, and that he cannot drive. However, he has presented no evidence that either of these restrictions or his intermittent nocturnal seizures substantially limit him in the major life activity of working.
To hold that a person is disabled whenever that individual suffers from an occasional manifestation of an illness would expand the contours of the ADA beyond all bounds. An intermittent manifestation of a disease must be judged the same way as all other potential disabilities. The statute is explicit — to be disabled under the ADA, a person must have a substantial limitation on a major life activity.Sara Lee Corp., 237 F.3d at 352.
The only case that plaintiff cites, Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000), is distinguishable on its facts. In that case, Otting had much more serious epileptic symptoms than Breech does, which were uncontrolled despite medication and surgery and which substantially limited her in three major life activities. Id. at 709-10. More closely analogous are the cases cited by Becon, which held that plaintiffs whose epilepsy is well controlled by medication and whose remaining seizures are light and infrequent are not disabled for ADA purposes. Sara Lee Corp., 237 F.3d at 352-53; Todd v. Academy Corp., 57 F. Supp.2d 448, 453-54 (S.D. Tex. 1999).
Breech has not carried his burden to produce evidence that he has a disability as defined by the ADA and the case law. Absent such a showing, he cannot establish a prima facie case of discrimination. Accordingly, Becon is entitled to summary judgment in its favor as a matter of law.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED and that plaintiffs claims are DISMISSED WITH PREJUDICE, plaintiff to bear all costs of this proceeding.