Opinion
Civil Action File No. 1:03-CV-2775-TWT.
March 3, 2005
ORDER
This is a pro se action under the Americans With Disabilities Act. It is before the Court on the Plaintiff's Motion for Summary Judgment [Doc. 18] and the Defendant's Motion for Summary Judgment [Doc. 19]. For the reasons set forth below, the Plaintiff's Motion is DENIED, and the Defendant's Motion is GRANTED.
I. BACKGROUND
Defendant WenMarr Management Company, LLC ("WenMarr") operates a Wendy's fast food restaurant located at 131 Main Street in Forest Park, Georgia. Between October 3, 2002 and February 16, 2003, WenMarr employed Plaintiff Timothy M. Counts, an African-American, as a grill cook and cashier at this Wendy's location. Counts contends that he was injured in the course of his employment at Wendy's on two occasions. On January 26, 2003, Counts injured his back in a collision with a shelf. On February 16, 2003, in another on-the-job accident, Counts re-injured his back and injured his eye. Early on February 17, 2003, Counts telephoned Kim White, the general manager of the restaurant. Counts described his injuries to Ms. White and declared himself to be in substantial pain. Ms. White told Counts that he should immediately go to Southern Regional Hospital to be checked out. Ms. White heard from Counts on two later occasions. On February 22, Counts came to the restaurant to pick up his paycheck, and on April 2, Counts requested a separation notice from Ms. White. Although Ms. White kept Counts on the shift calendar for the final week of February and the first week of March, Counts never reported or called in for any of his scheduled shifts. He has since explained that he failed to report for work because he was "totally disabled from work." (Counts Dep. at 94.)
Counts pursued a worker's compensation claim against WenMarr but dropped the claim when his attorney withdrew. Counts did not collect any compensation on the claim. On May 30, 2003, he filed an administrative charge of discrimination with the EEOC. (See Compl., Ex. A.) In this charge, Counts alleged discrimination on the basis of disability but not on the basis of race. Id. The EEOC sent Counts a right-tosue letter on August 27, 2003. On September 8, 2003, Counts filed the present suit against WenMarr and individual Defendants Matt Van Paepeghem and Kim White, alleging employment discrimination on the basis of Counts' disability and race. This Court dismissed Counts' claims against the individual Defendants as frivolous, as neither individual Defendant was Counts' employer. Both Counts and WenMarr move for summary judgment on the remaining claims.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-59 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
III. DISCUSSION
Counts asserts claims against his former employer WenMarr for unlawful employment discrimination on the basis of disability and race. WenMarr moves for summary judgment on Counts' claims. WenMarr contends that Counts fails to establish a prima facie case for either claim.A. Disability
The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111- 12117, prohibits discrimination in employment on the basis of disability. The ADA provides that:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112(a). The Act defines "qualified individual with a disability" as "an individual with a disability 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). The ADA's definition of qualified individual contemplates protection of those persons who are capable of performing the tasks required of them in the workplace. An employee who concedes that he is totally disabled from working in any capacity and who requires indefinite medical leave at the time of termination is not a "qualified individual with a disability" within the meaning of the ADA. Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225-26 (11th Cir. 1997). The Court of Appeals for the Eleventh Circuit has held that a requested accommodation is unreasonable "if it does not allow someone to perform his or her job duties in the present or in the immediate future." Wood, 323 F.3d at 1314; see also Duckett, 120 F.3d at 1226. The ADA does not require an employer to grant a disabled employee an indefinite leave of absence. Wood, 323 F.3d at 1314; Duckett, 120 F.3d at 1226.
In this case, Counts concedes that he has been totally disabled from work since February 16, 2003, and that no doctor has released him to work since that time. (Counts Dep. at 94.) WenMarr could not be required to grant Counts a leave of absence from that date to the present, nor a leave of absence from the present through the foreseeable future. Counts cannot establish that he was a "qualified individual with a disability" protected by the ADA. Consequently, WenMarr is entitled to summary judgment as to Counts' claim for discrimination on the basis of disability.
B. Race
Counts also asserts a claim against WenMarr for discrimination on the basis of race in violation of Title VII. In order to bring suit for race discrimination under Title VII, a plaintiff must first file an administrative charge of race discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1). Counts failed to do so. His administrative charge cites disability as the only basis on which he was allegedly unjustly terminated. (See Compl., Ex. A. ("I believe I have been discriminated against because of my disability and/or my perceived disability, in violation of the Americans With Disabilities Act of 1990.")) Counts made no later effort to amend his EEOC charge to reflect his additional allegations of discrimination based upon race. (Counts Dep. at 76-77.) As Counts failed to exhaust the administrative remedies available to him, summary judgment for WenMarr is appropriate.
If Counts had properly exhausted his administrative remedies and his claim were properly before this Court, he would be required to establish a prima facie case of race discrimination. Counts fails to do so. To establish a prima facie case, a plaintiff must show that (1) he was a member of a protected class, (2) he was qualified for the position, (3) he suffered an adverse employment action, and (4) he was replaced by a person outside his protected class or was treated less favorably than a similarly-situated individual outside his protected class.Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Counts cannot satisfy the second element of his prima facie case. As discussed above, Counts concedes that he has been and is totally disabled and, thus, incapable of work in any capacity. All of his physicians have deemed him totally disabled from working since February 16, 2003. Counts, thus, certainly fails to show that he was qualified for or capable of handling his former position after that date.
Counts also fails to present evidence to support the fourth element of his prima facie case. He testified both that medical leave was provided to all persons irrespective of race (Counts Dep. at 98) and that he did not know who replaced him. (Id. at 109.) Thus, Counts fails to present evidence either that employees of other races were given preferential treatment or that he was replaced by a person of another race. As Counts cannot establish a prima facie case of race discrimination, summary judgment on the claim for WenMarr is proper.
IV. CONCLUSION
For the reasons set forth above, the Plaintiff's Motion for Summary Judgment [Doc. 18] is DENIED, and the Defendant's Motion for Summary Judgment [Doc. 19] is GRANTED.
SO ORDERED.