Opinion
CIVIL ACTION NO. 02-934, SECTION "J" (2)
September 23, 2002
ORDER AND REASONS
Plaintiff, Anthony W. Crocker, was a fire captain with the City of Kenner Fire Department (the "City" or the "Department"). After he was fired, he field this lawsuit against his former employer, alleging causes of action for disability discrimination, retaliation and breach of medical record confidentiality under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 1217 (a); national origin discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5 (f)(3); and disability and national origin discrimination under Louisiana anti-discrimination law. Record Doc. No. 11, First Amended 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. 18.
Defendant moved for summary judgment before plaintiff filed his first amended complaint. Record Doc. No. 7. Crocker filed a timely opposition memorandum. Record Doc. No. 14. The City received leave to file a reply memorandum to address the allegations of the first amended complaint. Record Doc. Nos. 20, 21. Crocker received leave to file a reply memorandum. Record Doc. Nos. 22, 23.
On September 11, 2002, the court heard oral argument on the motion. Participating were Robert B. McKnight, Jr., representing plaintiff, and Alvin J. Bordelon, Jr., representing defendant. After the hearing, defendant's counsel sent a letter and copies of three cases to the court, which were filed in the record. Record Doc. No. 24.
Having considered the complaint, as amended, the record, the submissions and arguments of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART, as follows.
I. THE MOTION IS DENIED IN PART
Defendant's motion for summary judgment is denied as to plaintiff's claims of national origin harassment because genuine issues of material fact are in dispute, including but not limited to whether plaintiff was subjected to an objectively and subjectively hostile work environment that was so severe or pervasive as to alter the conditions of his employment; when the alleged harassment occurred; whether the perpetrators of the alleged harassment were superiors, co-workers or subordinates; and whether Kenner Fire Chief Michael S. Zito made harassing and derogatory statements referring to national origin to plaintiff.
Defendant' s motion is denied as to plaintiff's claims of retaliatory discharge because genuine issues of material fact are in dispute, including but not limited to whether Chief Zito told Crocker that his employment would be terminated if plaintiff did not reveal the names of co-workers who had given statements to the Equal Employment Opportunity Commission ("EEOC") and whether Crocker's employment was terminated in retaliation for his alleged contact with the EEOC prior to February 8, 2001.
The City's motion for summary judgment is denied as to plaintiff's claim of breach of medical records confidentiality in violation of the ADA because genuine issues of material fact are in dispute, including but not limited to whether the City revealed plaintiff's confidential medical information to anyone not entitled to receive it.
Finally, the motion for summary judgment is denied as to plaintiff's claim of post-discharge retaliation because genuine issues of material fact are in dispute, including but not limited to whether Kenner District Fire Chief Larry Negrotto made false accusations against Crocker to other persons at the Convention Center for the purpose of getting Crocker fired from his employment there, in alleged retaliation for Crocker' s EEOC complaints against the Department.
II. THE MOTION IS GRANTED IN PART
A. Factual Background
Plaintiff does not contend that he was actually disabled. Rather, he argues that defendant discriminated against him on the basis of its mistaken belief that he was disabled. The following material facts are relevant to plaintiff' s claims of perceived disability discrimination under the ADA and Louisiana law and are considered undisputed solely for purposes of the pending motion for summary judgment.
Crocker had been employed as a firefighter with the City for many years and had been a Fire Captain since 1986.
On January 7, 2000, plaintiff's mother died in an automobile accident in Hammond, Louisiana. Crocker went to the accident scene and assisted in extricating his mother's body from the wreckage. He took sick leave from the Department based on diagnoses of depression with anxiety and post-traumatic stress disorder resulting from his participation at the accident scene. According to the reports from his treating physicians over the next several months, plaintiff's post-traumatic stress disorder "totally incapacitated" him from working as a firefighter. Defendant's Exhs. 1-4, 6-7, 10, 12-16.
On August 9, 2000, plaintiff's treating psychiatrist, Alvin M. Rouchell, M.D., wrote to Chief Zito that
it is my opinion that Mr. Crocker can perform the duties of a firefighter in fighting fires. He is unable to go to accident scenes. He is unable to extricate injured or deceased individuals from wrecked automobiles. . . . He may be able to perform that duty in six to twelve months.
In answer to your specific questions, Mr. Crocker can perform light duty, if it does not involve deceased people in wrecked automobiles. I think Mr. Crocker can fight fires. He cannot report and handle accident scenes. If reporting to accident scenes is "full dug," then he will not be able to return to "full duty" for six to twelve months. If "light duty" does not involve accident scenes, he could perform "light duty" now. I don't think Mr. Crocker is totally disabled [or] . . . permanently disabled.
Defendan't Exh. 18.
Crocker agreed to return to light duty for four hours per day for four days in October 2000. Defendant's Exh. 20. He never returned to work after his last day of light duty on October 20, 2000. He did not contact anyone at the Department to arrange for any continued duty, nor did Chief Zito contact him. The parties dispute whose responsibility it was to arrange for continued duty. See Defendant's Exh. 20, Chief Zito's letter to Crocker dated October 4, 2002, confirming that plaintiff would return to light duty for two weeks, after which "you will meet with your doctor and [me] to determine if you should continue on light/limited duty and/or full duty." The letter also stated that Crocker and the Chief had discussed the possibility of plaintiff applying for disability retirement if he was unable to return to full duty. Id.
On November 3, 2000, Dr. Rouchell signed another Fire Department sick leave form, opining that plaintiff was "totally incapacitated" and would be re-evaluated in two months. Crocker also signed the form and submitted it to the Department on November 6, 2000. Defendant's Exh. 21. On January 16, 2001, Dr. Rouchell again opined on a sick leave form that plaintiff was totally incapacitated, his estimated return to work date was unknown and he would be re-evaluated in two months. Crocker signed this form as well and submitted it to the Department on January 22, 2001. Defendant's Exh. 23.
Under Louisiana law, a firefighter is entitled to 52 weeks of paid sick leave for any injury or illness. La.Rev.Stat. § 33:1995. On February 9, 2001, Chief Zito sent a letter to Crocker, in which he advised plaintiff that the City would terminate his employment effective March 5, 2001. The City's stated reason was that Crocker had exhausted his sick and annual leave and, according to his doctor, was still unable to return to work. Defendant's Exh. 26, at pp. 1-2. "Consequently, the City has no choice except that of removing you from service on the grounds of medical inability to perform as a firefighter." Id. at p. 3. The Chief stated that he would delay plaintiff's termination until March 5th to allow Crocker to apply for disability retirement while still employed, thus allowing Crocker to take advantage of a presumption that his disability was job-related. Id. at p. 4.
Because firefighters work according to a schedule of 24 hours on the job and 48 hours off, the Department permits them to hold part-time jobs with other employers. The Department's policy allows a firefighter who is on paid sick leave to continue to work at another part-time job, provided that he performs at least light duty for the Department or obtains a waiver of the light duty requirement. Crocker did not apply for a waiver.
Although Chief Zito suspected throughout plaintiff's absence that Crocker was working part-time at the New Orleans Convention Center, the Chief became certain of it in December 2000, about two months before he sent the February 9, 2001 termination letter to plaintiff. Defendant's Exh. 22, letter from Centanni Investigative Agency dated December 5, 2000; Chief Zito's affidavit ¶¶ 38-41. Plaintiff admits that he worked part-time at the Convention Center in a telecommunications and computer networking job throughout his absence from the Department. Record Doc. No. 11, First Amended Complaint ¶ 11. Chief Zito and Nick Nicolosi, the City's Chief Administrative Officer, suspected that Crocker was abusing the Department's sick leave policy by working at the Convention Center without working light duty for the Department. However, they decided not to terminate plaintiff in December 2000 because they did not have adequate proof of such abuse. Record Doc. No. 7, defendant's motion for summary judgment, affidavit of Chief Zito at ¶¶ 4-8, 12-13, 22, 37-42; affidavit of Nick Nicolosi at ¶¶ 4-11;see also Defendant's Exhs. 21, 23 (Dr. Rouchell's opinions dated November 3, 2000 and January 16, 2001 stating that plaintiff was totally incapacitated). Nicolosi and Chief Zito were aware when they had these discussions in December 2000 and January 2001 that plaintiff's sick leave would expire in January 2001. Nicolosi affidavit at ¶ 12.
"The facts put forth in a verified complaint may be treated as if in an affidavit on summary judgment, if the asserted facts meet the requirements of Fed.R.Civ.P. 56(e) that they be within the personal knowledge of the affiant, that they otherwise would be admissible into evidence, and that the affiant be competent to testify." Huckabay v. Moore, 142 F.3d 233, 240 n. 6 (5th Cir. 1998) (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
After plaintiff received the termination letter from Chief Zito, he prepared an application for disability retirement based on job-related post-traumatic stress disorder. He submitted the application to Chief Zito to complete the agency certification portion of the form. Chief Zito signed the form on March 19, 2001, certifying that plaintiff had been unable to perform the duties of his job since January 9, 2000. In the box requesting a description of the job duties the applicant was no longer able to perform, Chief Zito stated, "check with physician." Defendant's Exh. 27. Crocker never submitted the completed application for disability retirement to the appropriate agency.
B. 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).
C. Plaintiff's Perceived Disability Claim
Crocker contends that Chief Zito decided not to assign him to continued light duty after October 20, 2000 because the Chief mistakenly believed that Crocker was mentally disabled from such duty, whereas plaintiff actually was willing and able to continue working, and that the City's continued misperception about his illness led to his termination. The City denies that it decided not to assign plaintiff to further light duty. Rather, it contends that he abandoned the duty because he never contacted the Department after October 20th to arrange for continued duty. The City also argues that it could not assign Crocker to light duty after receiving Dr. Rouchell's November 3, 2000 opinion that he was totally incapacitated. Crocker responds that Dr. Rouchell's August 9th opinion, which only restricted him to duty that did not involve deceased people in wrecked automobiles, was the only restriction that remained in place after October 20th.
The ADA and Louisiana law both prohibit employment discrimination based on disability. Although Crocker's first amended complaint does not cite any Louisiana statutes, both the Louisiana Civil Rights Act for Handicapped Persons, La.Rev.Stat. § 46:2251 et seq., and the Louisiana Employment Discrimination Law, La.Rev.Stat. § 23:323, provide causes of action for disability discrimination. Because Louisiana's anti-discrimination laws are similar in scope to the federal prohibitions against disability discrimination, state and federal courts in Louisiana routinely look to the federal courts' interpretations of the ADA and the Rehabilitation Act (upon which the ADA is based) for persuasive guidance in analyzing state law discrimination claims. See Mincey v. Dow Chem. Co., No. 98-812, 2002 WL 1902107, at *4 (M.D. La. Mar. 15, 2002) (Tyson, J.) ("[B]ecause the Louisiana Employment Discrimination statute is essentially patterned after the ADA, the result of this Court's analysis under either statute must, necessarily, be the same."); Fields v. St. Bernard Parish Sch. Bd., No. 99-3396, 2000 WL 1560012, at *9 (E.D. La. Oct. 16, 2000) (Vance, J.) ("the plain language of La.R.S. 46:2554 mirrors the [ADA]") (citing Hypes v. First Commerce Corp., 3 F. Supp.2d 712, 719 (E.D. La. 1996) (Feldman, J.), aff'd, 134 F.3d 721 (5th Cir. 1998)); id. (applying reasoning of ADA cases to claim under La.Rev.Stat. § 23:323). Thus, the court's disposition of Crocker's ADA discrimination claim will also dispose of his state law disability discrimination claim.
To present a prima facie case of discrimination under the ADA, plaintiff must show that he "is a qualified individual with a disability, and that the negative employment action occurred because of the disability." Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir. 2001) (quotation omitted). "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 person may be considered "disabled" for purposes of the ADA, and thus entitled to its protections, if the person is not actually disabled but is perceived as disabled by an employer, who discriminates on the basis of that perception. Then-district, now-Fifth Circuit, Judge Clement recently set forth the analytical framework for such an ADA claim.
The ADA provides that no covered employer "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 ADA defines "disability" as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment. Ortega v. Southwest Airlines, No. 98-2782, 1999 WL 1072543, at *3 (E.D. La. Nov. 24, 1999) (Clement, J.) (quoting 42 U.S.C. § 12102 (2); citing Sutton v. United Airlines, Inc., 527 U.S. 471, 478 (1999)) (emphasis added).
In Sutton, the Supreme Court identified two ways in which individuals may be "regarded as" disabled under the ADA:
(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities; or
(2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.
As the Fifth Circuit has formulated the standard on summary judgment, to make a prima facie showing of disability under the "regarded as" prong, [plaintiff] must have produced sufficient evidence for a reasonable trier of fact to conclude (1) that [the employer] perceived him as having an "impairment" and (2) that this impairment, if it existed as perceived by [the employer], would have substantially limited one or more of his major life activities.Id. (citing Sutton, 527 U.S. at 489; Deas v. River West, L.P., 152 F.3d 471, 476 (5th Cir. 1998)) (emphasis added).
In the instant case, Crocker admittedly had an impairment, post-traumatic stress disorder, of which the City was aware. The parties disagree whether the City perceived Crocker's impairment as substantially limiting one of his major life activities. If the City so perceived his impairment, then plaintiff is considered "disabled" for ADA purposes.
The first step is to answer "the critical question . . . whether, if the impairment existed as perceived by [the City], it would have substantially limited one or more of [Crocker's] major life activities. Obviously, then, it is crucial to understand the terms 'substantial limitation' and 'major life activities.'" Id. (citing Sutton, 527 U.S. at 489) (emphasis added).
Although the ADA does not define either "substantially limits" or "major life activities", the 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, performing 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.Id. (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; id. § 1630.2(j)(i)-(iii)) (emphasis added). Crocker contends that the City perceived him, incorrectly, as substantially limited in the major life activity of working.
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, 471 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 Court has assumed the validity of the EEOC regulations in these recent cases.
Although the Supreme Court noted in Sutton that "there may be some conceptual difficulty in defining 'major life activities' to include work," 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 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).
The Fifth Circuit acknowledged that
[t]he Supreme Court's recent observance that "[n]o agency . . . has been given authority to issue regulations implementing the generally applicable provisions of the ADA" now casts a shadow of doubt over the validity and authority of the EEOC's regulations. However, because we conclude, based on the plain text of the ADA, that working is indeed a major life activity, we need not decide whether the EEOC's regulations are due any deference, or whether we are bound by our own precedent to respect them.Id. at n. 5.
"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)). "To be regarded as substantially limited in the major life activity of working, then, one must be regarded as precluded from more than a particular job, a specialized job, or a particular job of choice." Ortega, 1999 WL 1072543, at *5 (citing Sutton, 527 U.S. at 492; Murphy, 527 U.S. at 523).
An employer's belief that an employee is incapable of fulfilling the essential functions of one particular job does not establish that the employer regarded him as being substantially limited in his ability to work in general. To the contrary, "[i]f jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different jobs are available, one is not precluded from a broad range of jobs."Id. (quoting Sutton, 527 U.S. at 492; citing Deas, 152 F.3d at 481-82).
In the instant case, Crocker argues that "firefighter" constitutes a "class of jobs" and that the City regarded him as substantially limited in the ability to perform that class of jobs. As a matter of law, the job of firefighter is not a "class of jobs" for ADA purposes.
A "class of jobs" is defined by the EEOC regulations as "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2 (j)(3)(ii)(B).
A "broad range of jobs in various classes" is defined as "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." Id. § 1630.2(j)(3)(ii)(C). Crocker does not argue that the City perceived him as unable to perform a "broad range of jobs in various classes."
The Fifth Circuit has squarely held that "firefighters alone do not constitute a 'class of jobs.'" Bridges v. City of Bossier, 92 F.3d 329, 334 (5th Cir. 1996) (citing Welsh v. City of Tulsa, 977 F.2d 1415, 1416-20 (10th Cir. 1992)).
Similarly, the Tenth Circuit has suggested that preemption from employment in one's chosen field does not per se establish a substantial limitation on working. We find the approach of the Tenth Circuit closer to our understanding of a substantial limitation on the major life activity of working. Thus, we hold that firefighting jobs — including firefighters and associated municipal paramedics or EMTs who must also serve as backup firefighters — is too narrow a field to describe a "class of jobs" under 29 C.F.R. § 1630.2 (j)(3)(i).Id. at 335-36 (citing Welsh, 977 F.2d at 1418-19) (additional citations omitted) (emphasis added); accord Shipley v. City of Univ. City, 195 F.3d 1020, 1023 (8th Cir. 1999); Smith v. City of Des Moines, 99 F.3d 1466, 1474 (8th Cir. 1996); Taraila v. City of Wilmington, No. 99-564-GMS, 2000 WL 1708218, at *3-4 (D. Del. Oct. 12, 2000); Serrano v. County of Arlington, 986 F. Supp. 992, 997-98 (E.D. Va. 1997) (Ellis, J.).
Crocker has not made a prima facie showing, as he must to survive summary judgment, that the City perceived him as disqualified from a class of jobs, as that term is employed for ADA purposes. The evidence shows that the City perceived him as disqualified only from the duties of a firefighter, not from the major life activity of working.
Plaintiff cites the following evidence which he believes creates a genuine issue of material fact that the City mistakenly regarded him as disabled from a class of jobs, although he actually was willing and able to work: (1) following Dr. Rouchell's August 9, 2000 letter, opining that Crocker could perform "light duty" as described therein, Chief Zito did not contact plaintiff to arrange light duty until September 14, 2000; (2) after plaintiff completed his light duty in October, the Chief did not assign him to further duty; (3) the City was unable to conclude in December 2000 that plaintiff was abusing his sick leave; and (4) when Crocker submitted his disability retirement application to Chief Zito, the Chief endorsed the application.
Plaintiff also notes that the City had obtained Dr. Rouchell's treatment notes on July 13, 2000 and thus was aware as of that date that Crocker was not afraid to fight fires but felt he could not go to accident scenes where he might have to remove a dead body from a vehicle. Defendant's Exh. 15 at p. 5, treatment notes dated June 20, 2000.
The court cannot find from this evidence, or the record evidence as a whole, that the City considered Crocker to be disabled from anything but his particular job as a firefighter. First, the court cannot draw any inference concerning the City's perception of Crocker's abilities from the mere delay between Chief Zito's receipt of Dr. Rouchell's August 9th letter and his contact with plaintiff to arrange light duty; there could be any number of administrative or other nondiscriminatory reasons for the delay. Second, the City's inability to conclude in December 2000 that plaintiff was abusing his sick leave was based on its lack of proof (although the Chief was convinced of it) at that time that Crocker had been working at the Convention Center all year and on its receipt of Dr. Rouchell's November 3, 2000 medical opinion that Crocker was "totally incapacitated." City officials suspected and then were certain as of December 2000 that Crocker was working at the New Orleans Convention Center. At the least, this evidence created a conflict in the City's perception of whether plaintiff was able to work and, at the most, it created a perception that plaintiff could not work as a firefighter. Finally, Chief Zito's failure to contact plaintiff to arrange additional light duty after October 20, 2000 and his willingness to sign plaintiff's disability retirement application in March 2001 do not establish that he considered plaintiff disabled from any job except firefighting, as that job was defined by the Department.
Because "firefighting jobs . . . is too narrow a field to describe a 'class of jobs'" and because Crocker has failed to show that the City regarded him as disabled from a class of jobs, he cannot be considered "disabled" under the ADA. Accordingly, the City is entitled to summary judgment on his ADA and state claims of disability discrimination.
D. Plaintiff's Punitive Damages Claim
The first amended complaint deletes any claim for punitive damages that was in the original complaint. At oral argument, plaintiff's counsel confirmed that he intended to delete that claim and that no such claim any longer exists in this lawsuit.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED IN PART as to plaintiff's claims of perceived disability discrimination under the ADA and Louisiana law, and those claims are DISMISSED WITH PREJUDICE. The remainder of defendant's motion is DENIED. Thus, the claims remaining for trial in this case are retaliation and breach of medical record confidentiality under the ADA, national origin discrimination and retaliation under Title VII, and national origin discrimination under Louisiana law.