Opinion
Civil Action No. 5:04-CV-149-C.
January 31, 2005
ORDER
On this date the Court considered the Motion for Summary Judgment and Brief in Support with Appendix filed by UNITED SUPERMARKETS, LTD. ("Defendant" or "United") on November 22, 2004. The Court also considered the Brief in Support of Response to Defendant's Motion for Summary Judgment with Appendix, filed by TIMOTHY CURL ("Plaintiff") on December 10, 2004. The Court further considered Defendant's Reply Brief to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed with leave of the Court on January 3, 2005. After considering all the relevant arguments and evidence, the Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED.
I. BACKGROUND
After receiving his right to sue letter from the Equal Employment Opportunity Commission, Plaintiff originally filed suit under the Texas Commission on Human Rights Act on May 6, 2004, in Lubbock County state district court; however, Plaintiff's suit was filed outside the two-year statute of limitations. Defendant filed a plea to the jurisdiction and Plaintiff nonsuited his cause of action on June 17, 2004. On June 28, 2004, Plaintiff re-filed his lawsuit in this Court under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"). On November 22, 2004, Defendant filed its Motion for Summary Judgment against all of Plaintiff's claims. Plaintiff responded on December 10, 2004, and Defendant filed a reply to Plaintiff's response on January 3, 2005, after receiving leave of Court.
Plaintiff was previously employed by Defendant in February of 2001 as an Assistant Bakery Manager. Plaintiff interviewed with Mr. Edward Kitten in order to obtain employment the first time that he worked for Defendant, see Def. App. at 22-24; however, Plaintiff did not raise the issue of disability the first time Plaintiff worked for Defendant. Id. Plaintiff worked at Defendant's store in Lubbock, Texas, for about four months and was then promoted by Mr. Kitten and transferred to Wichita Falls in 2001. Id. at 27. Plaintiff resigned from this position and moved to Missouri but did not inform Defendant of any disability at that time. Although Plaintiff gave notice to Defendant, he actually resigned sooner than the date he gave notice for. Id. at 29. Plaintiff gave the reason of "family matters" as the cause for his resignation. Id. Plaintiff later testified that the main reason he resigned was because he was experiencing mental and physical health problems. Id. at 31-34. Plaintiff testified that "the bulk of the moving" was because his best friend was a doctor in Missouri with whom he felt comfortable. Id. at 32.
After receiving medical treatment, Plaintiff approached Defendant again, specifically Mr. Kitten, to see if he could be re-hired. Id. at 33-35. Plaintiff states that he completely informed Mr. Kitten regarding his problems prior to being re-hired, including the fact that his previous resignation was not completely due to family matters and that he was calling from a neuropsychiatric unit. Id. at 33-38. Plaintiff interviewed with Mr. Kitten and with Ms. Piper Dockins (immediate supervisor for a doughnut fryer position). Id. at 37. Plaintiff testified that he informed Ms. Dockins of his health situation and of each of the medications he was taking. Id. at 37. Plaintiff admits he was informed that it would be at least six months before he would be considered for any type of promotion. Id. at 38-39. Plaintiff states that when he was asked in the interview process whether he was looking to get back into management, he responded that he might be interested in an assistant management position within six months or so but he did not "want to manage one for a while . . . until [he] got everything kind of squared away." Id. at 38. Plaintiff admits that it was discussed in the interview process that he would need to work "a few months as bakery [sic] or . . . as donut fryer and then work [his] way back up." Id. Plaintiff never received any discriminatory comments on the basis of his alleged disability, id. at 56, nor did Ms. Dockins make any comments about his health situation when he was hired. Id. at 37. Plaintiff does not recall any comments made by Mr. Kitten in response to Plaintiff's health condition when he was re-hired. Id. at 36. During the interview for his second job with Defendant, Plaintiff did not indicate that his condition would be a problem and stated that he felt capable of performing the job. Id. at 38.
Plaintiff specifically states that he was being treated as a manic depressant because he had not yet been diagnosed as bipolar. See Def. App. at 36. Although Defendant characterizes Plaintiff's statements to Mr. Kitten and Ms. Dockins as informing them of being diagnosed as bipolar, see Def. Br. at 3, Plaintiff's actual statement in his deposition is that he was not yet diagnosed as bipolar. See Def. App. at 36.
Regardless, Plaintiff argues in his own Response Brief that bipolar disorder is defined as a mood disorder characterized as swings from mania to depression. See Pl. Br. at 5. Thus, Plaintiff's testimony that he suffered as a manic depressant and was being treated for manic depression does not differ from the final diagnosis of bipolar disorder in that a symptom of bipolar disorder is a person who swings from being manic to depressed. See id.; Def. App. at 36; Def. Br. at 3. Assuming Plaintiff's own testimony to be truthful when he testified that he completely informed Mr. Kitten and Ms. Dockins of his conditions, see Def. App. at 33-38, a reasonable jury could only come to the conclusion that Mr. Kitten and Ms. Dockins were completely aware of Plaintiff's manic depression when he was re-hired.
Plaintiff was hired by Defendant as a doughnut fryer and Plaintiff understood at the time he accepted the job that the doughnut fryer job would entail working night shifts. Id. at 40. Plaintiff did not request any type of accommodation for his health conditions when he was rehired, nor did he request any immediately after being re-hired. Id. at 41. Plaintiff did not consider himself disabled at the time he was re-hired. Id.
Plaintiff came under the care of Dr. Kallepalli, a psychiatrist practicing in Lubbock, approximately three or four weeks after being re-hired. Id. at 45-46. The doctor diagnosed Plaintiff with bipolar disorder. See Pl. App. at 16. Apparently, Dr. Kallepalli wrote a note advising Plaintiff to "not take night shift at work as much as possible." Id. Plaintiff left a copy of the note from Dr. Kallepalli with "the lady up front" at Defendant's corporate offices because Mr. Kitten was not in at the time. See Def. App. at 48. Plaintiff then called in to work to let them know that he would not be in and that he would take it up with Ms. Dockins the next morning. Id. Plaintiff testified that Ms. Dockins called him at home that night to see what was wrong — at which time Plaintiff informed Ms. Dockins that he was seeing a psychiatrist who had recommended Plaintiff not work night shifts. Id. 48-51. Plaintiff testified that he had called in earlier that day to let Ms. Dockins know that he was not going to make it in for work. Id. at 48-49.
Plaintiff states that he went to see Ms. Dockins the next morning and personally hand delivered a copy of the doctor's note. Id. at 77. Plaintiff states that he informed Ms. Dockins that Dr. Kallepalli asked him not to work "these, you know, this type hours," id. at 52, 62a, and that "he doesn't want me working at nights." Id. at 53. Plaintiff admits that he did not make any requests for schedule change when he spoke with Ms. Dockins. Id. at 53. Plaintiff testified that Ms. Dockins commented that she would talk to Mr. Kitten, which Plaintiff interpreted as "well we maybe go baker or, you know, somewhere from there." Id. However, Plaintiff further testified that the following phone call from Mr. Kitten "didn't ensue [sic] either one." Id. Plaintiff states that Mr. Kitten called him later that afternoon, id., and Plaintiff discussed the doctor's note with Mr. Kitten. Id. at 53-54. Plaintiff believed that other bakery positions were available with daytime hours, id. at 54; however, Plaintiff offered no summary judgment evidence to back up his unsubstantiated assertions or conclusory, hearsay testimony regarding other possible positions with Defendant.
Somewhat in contradiction of his deposition testimony, Plaintiff avers that he requested to be moved from the night shift to the day shift, see Pl. App. at 40-41 (Affidavit of Timothy Curl). It is possible that Plaintiff is averring that he made such a request to Mr. Kitten, also mentioned in Plaintiff's affidavit. However, Plaintiff's affidavit implies that he made the request to Ms. Dockins. Plaintiff's own deposition testimony and affidavit are inconsistent in this regard.
Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
Plaintiff admits that Mr. Kitten discussed with Plaintiff when he was hired that they had hired him with the understanding that he would work as a doughnut fryer, id. at 38-40, 55, for at least a period of two or three months. Id. at 55. When asked during his deposition whether someone actually told him, "Okay, we're hiring you as a donut fryer, and then you will be able to work up to baker within two or three months from now," Plaintiff's response was, "My question was, is am I going to be a donut fryer for six months or am I going to move up, the answer was, `We'll see.'" See Def. App. at 55. Thus, Plaintiff's deposition testimony does not indicate that he was ever specifically told he would be able to move from the doughnut fryer position to a baker position in two or three months. Id. Mr. Kitten told Plaintiff that if he could not fulfill the requirements of the job for which he was hired, Plaintiff and Defendant would have to "part ways," id. at 10, but that Plaintiff was free to apply for another position with Defendant at a later time. See Def. App. 11-12. There is no evidence before the Court that Plaintiff applied for another position with Defendant.
Plaintiff states that the period of time was two to three months. See Def. App. at 55. However, Defendant implies that the agreement was for Plaintiff to work as a doughnut fryer for six months. See App. in Supp. Def. Reply Br. at 6 (depo. Mr. Kitten stating "I made it very clear that Tim would be a donut fryer for six months"). Plaintiff's own testimony refers to some type of "agreement" between himself and Mr. Kitten. See Pl. App. at 12 ("Because through the whole thing I'm always referred back to Edward, because she always claimed that that's who the agreement was with.") (emphasis added). Regardless, the Court finds that neither period had been fulfilled after a mere three weeks of employment and no reasonable jury could find otherwise.
Plaintiff has worked for a vehicle dealership as a salesman after working for Defendant. Id. at 19-20. Plaintiff is currently employed by a local bakery. Id. at 18-19. Plaintiff also went back to school and earned a bachelor's degree with a major in business and a minor in religion. Id. at 17. Although Plaintiff considered himself to be disabled while attaining his degree, he managed to graduate with a 4.0 grade point average. Id. at 42-43. Plaintiff has denied that his claimed disability affected his ability to work at the vehicle dealership or the local bakery. Id. at 44. Plaintiff testified that his alleged disability does not substantially limit his major life activities, including his ability to walk, exercise, and see. Id. at 57-59. Moreover, Plaintiff admits that he is not substantially limited in the major life activity of working, other than his claim to require a daytime-only work schedule. Id.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor.In reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id.; see also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence were insufficient to preclude summary judgment when plaintiffs failed to identify specific portions which supported their claims).
Rule 56(e), Federal Rules of Civil Procedure, requires the party against whom the motion is made to "set forth specific facts showing that there is a genuine issue for trial." Absent such a showing, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995). Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). "[T]he nonmoving litigant is required to bring forward significant probative evidence demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir. 1982). A party defending against a proper motion for summary judgment may not rely on mere denial of material facts or on unsworn allegations in the pleading or arguments and assertions in briefs or legal memoranda; rather, the party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. See Union Planters Nat'l Leasing v. Woods, 687 F.2d 117, 119 (5th Cir. 1982).
III. DISCUSSION
A. "Disabled"
To make out a prima facie case of discrimination under the ADA, Plaintiff must show that (a) he has a disability; (b) he is a qualified individual for the job in question; and (c) an adverse employment decision was made because of his disability. Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024-25 (5th Cir. 1999) (citing 42 U.S.C. § 12112(a)). "The threshold issue in a plaintiff's prima facie case is a showing that [he] suffers from a disability protected by the ADA." Id. (citing Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996)). The ADA defines the term "disability" to mean:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such an individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
Plaintiff appears to be advancing a claim under § 12102(2)(A) and has not made arguments to support a claim under subsection (B) or (C) or contested Defendant's classification of Plaintiff's claims as being under subsection (A). "The ADA defines neither `substantially limits' nor `major life activities,' but the regulations promulgated by the EEOC under the ADA provide significant guidance." Talk, 165 F.3d at 1024. "Whether an impairment is substantially limiting is determined in light of (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. "Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id.; Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995). To substantially limit means:
(i) unable to perform a major life activity that the average person in the general population can perform; or
(ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.Id. at 1025 n. 6.
"The substantial-limit requirement is the linchpin of § 12102(2)(A)." Waldrip v. General Elec. Co., 325 F.3d 652, 655 (5th Cir. 2003). The effects of an impairment, even some serious ones, may not rise to a substantial limit. Id. at 656. For instance, even cancer and its treatment did not substantially limit the major life activity of work in Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996). Even though cancer obviously affected a plaintiff's ability to work, far more was required to trigger coverage under the ADA. Id. at 191. "[T]he ADA requires those `claiming the Act's protection to prove a disability by offering evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial.'" Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999) (alterations omitted)). Plaintiff argues that bipolar disorder has been held to be a disability under the ADA, see Pl. Resp. at 5-6 (citing multiple circuits including the Fifth Circuit), and that even "mere depression can constitute a disability under the ADA." Id. at 8 (citing Ralph v. Lucent Techs, 135 F.3d 166, 168 (1st Cir. 1998); E.E.O.C. v. Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997); Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998)).
Plaintiff failed to direct the Court to controlling Fifth Circuit or Supreme Court precedence stating the proposition that "mere depression can constitute a disability under the ADA."
Whether Plaintiff's condition is defined as one that qualifies as a disability is not the end of the question. Plaintiff must also show that his condition substantially limited one or more of his major life activities. "A plaintiff cannot survive summary judgment by showing that an impairment like his own could substantially limit a major life activity of another person or in his own future[;] [r]ather, he must show that his impairment has actually and substantially limited the major life activity on which he relies." Waldrip, 325 F.3d at 656. "[N]either the Supreme Court nor [the Fifth Circuit] has recognized the concept of a per se disability under the ADA, no matter how serious the impairment; the plaintiff still must adduce evidence of an impairment that has actually and substantially limited the major life activity on which he relies." Id.
Defendant argues that Plaintiff has actually denied that his condition substantially limited his ability to learn and earn high marks in his academic endeavors. See Def. Br. at 9 (citing to Def. App. 42-43). Defendant further argues that Plaintiff denied that his condition prevented him from caring for himself, performing manual tasks, walking, seeing, or working generally. Id. (citing Def. App. 57-60). Plaintiff specifically admits that his bipolar disorder does not substantially limit the major life activity of working other than his claim to require a daytime-only work schedule. Id. Thus, Defendant argues that Plaintiff is not substantially limited in any major life activity other than his working schedule. Id.
Plaintiff argues in his Response that whether a condition substantially limits a major life activity is a factual question for a jury. See Pl. Resp. at 4-5. Plaintiff cites to Tenth Circuit precedence in support of his argument. Id. However, if Plaintiff has admitted in his deposition that his condition has not substantially limited major life activities, then there can hardly be a genuine issue of material fact requiring submission to a jury.
Defendant asserts that "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." See Def. Br. at 9 (citing Talk, 165 F.3d at 1025). Defendant goes on to argue that "[e]vidence of disqualification from a single position or a narrow range of jobs will not support a finding that an individual is substantially limited from the major life activity of working." Id. at 10 (quoting Talk, 165 F.3d at 1025). Defendant contends that when an impairment only affects a narrow range of jobs, the Court should regard it either as not reaching a major life activity or as not substantially limiting one. Id. Defendant directs the Court to evidence showing that Plaintiff has stated under oath that his condition has not caused him to be unable to perform certain types of jobs, see Def. App. at 57-58, or affected his "ability to do anything." See Def. App. at 58-59. Defendant asserts that Plaintiff has in fact worked other jobs without any difficulty, including a virtually identical job with merely a different hourly shift at a competing local bakery. See Def. Br. at 11 (citing to Def. App. at 18-21).
Defendant argues that the ADA requires employers to reasonably accommodate limitations, not disabilities. Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996).
Thus, Defendant argues that Plaintiff's sole claim of disability is that his bipolar disorder and the medication prescribed to treat it prevents him from working the night shift as a doughnut fryer at Defendant's store. See Def. Br. at 11. Defendant contends that Plaintiff's own pleadings and deposition testimony prove that he is not a proper plaintiff under the ADA because he has not pleaded and cannot prove that his condition significantly restricted 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. (quoting Talk, 165 F.3d at 1025). Finally, Defendant advances Dupre v. Harris County Hosp. Dist., 8 F. Supp. 2d 908, 918 (S.D. Tex. 1998), for the precedent that just because bipolar condition may make it difficult to work a particular shift, such impairment does not affect the major life functions set forth in the EEOC's regulations or leave such a plaintiff "disabled" under the ADA. Therefore, Defendant seeks summary judgment on Plaintiff's claims due to Plaintiff's failure to make his prima facie case by meeting the first element of "disabled."
After Defendant has produced summary judgment evidence in support of its argument, Plaintiff's burden is to come forward with summary judgment evidence controverting Defendant's summary judgment evidence. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Thus, the Court looks to Plaintiff's Response for significant probative evidence showing a triable issue of genuine and material fact as to Plaintiff's status of "disabled" under the ADA.
Plaintiff, in his Response, states that he was diagnosed with bipolar disorder by his doctor. See Pl. Resp. at 1 (citing to Pl. App. at 14-39). Plaintiff argues that the evidence in this case clearly shows that his bipolar disorder "does limit one or more of his major activities." Id. at 7. Plaintiff claims that he was on the verge of a mental breakdown and suffered from depression and anxiety, id. (citing to Pl. App. at 45-46), and that "he was experiencing manic depression, and had problems sleeping and problems concentrating, as well as problems with crowds of people." Id. He further argues that his deposition shows "that his bipolar disorder caused him to not be able to physically think, and it got to the point that he was about to break down." Id. (citing to Pl. App. at 47). Plaintiff contends that his deposition testimony shows that "his disorder also caused him to be suicidal at times to the point he was forced to go to the emergency room, and to suffer ringing in his ears and black-outs." Id. (citing to Pl. App. at 48). Plaintiff further states that his doctor informed him that he needed to work a day shift. Id. (citing to Pl. App. at 49, 11-12).
Although Plaintiff did not use the words "substantially limits," the Court will assume that Plaintiff did not intend to infer that something less than a "substantial" limit would be sufficient. Fifth Circuit precedence clearly requires that the limitation be substantial. See discussion, supra.
The Court notes that, although not argued by Defendant, all the testimony cited to by Plaintiff on page 7 of his Brief, other than the last citation referring to Dr. Kallepalli's advice to work a night shift, was testimony actually referring to problems or impairments he was having before resigning from employment with Defendant (first employment) to move to Missouri and seek treatment. No claims have been advanced for any conduct of Defendant regarding Plaintiff's first employment with Defendant. No summary judgment evidence has been pointed to by Plaintiff to suggest that Plaintiff suffered from the same symptoms or impairments after being re-hired. Thus, even beyond Defendant's arguments, it is not clear to the Court that Plaintiff's cited testimony and averments are relevant to whether Plaintiff was substantially limited in a major life activity during his second employment period with Defendant.
Plaintiff argues that all the cited evidence in this paragraph shows that he does have a disability that substantially limits his major life activities or at the very least creates a genuine issue of material fact regarding his disability. Thus, Plaintiff seems to be proffering summary judgment evidence of his own deposition testimony and affidavit as well as the diagnosis from his doctor to show that his condition substantially interfered with at least one major life activity. However, Defendant argues in its Reply that Plaintiff has attempted to meet the threshold issue by merely asserting that he suffers from impairments from his alleged bipolar disorder, but he has failed to adduce evidence that the alleged impairments actually and substantially limit one or more of the major life activities. See Def. Reply at 3. Moreover, Defendant argues and quotes the Fifth Circuit as stating "[a] physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA." Id. (quoting Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995)). Defendant goes on to quote Dutcher as stating: "The statute requires an impairment that substantially limits one or more of the major life activities." Id. Finally, Defendant argues that Plaintiff has provided only a conclusory allegation and unsubstantiated assertions that his disability is an impairment within the meaning of the ADA. Id.
Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
The Court agrees with Defendant's arguments and finds that Plaintiff has not rebutted Defendant's summary judgment evidence with significant probative evidence to raise a genuine issue of material fact regarding whether Plaintiff's impairments or condition substantially limited his major life activities, including the activity of working. Plaintiff's assertion that he fits a textbook definition of bipolar disorder as well as suffers from some of the common symptoms, see Pl. Resp. at 5-7, is insufficient. "The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual." Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996). Plaintiff has failed to adduce evidence that, when taken in a light most favorable to him, shows that his bipolar disorder has substantially limited one or more major life activities. See Waldrip, 325 F.3d. at 656. Even assuming, arguendo, that Plaintiff may rely upon evidence of mere impairments during a different time frame than the period at issue in this case, Plaintiff has failed to rebut Defendant's argument with significant probative evidence that the impairments substantially limited his major life activities, specifically the activity of working. Moreover, Plaintiff has not rebutted Defendant's argument for summary judgment that, as a matter of law, instances of a single job impairment do not rise to the level of a disability. See Def. Br. at 9-12 (citing to Talk, 165 F.3d at 1025 (must plead and prove condition significantly restricted ability to perform either a class or broad range of jobs and inability to perform a single, particular job does not constitute substantial limitation); Dupre, 8 F. Supp. 2d at 917-18 (a court should reject plaintiff's argument if impairment only affects a narrow range of one job); Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998) (same)).
For all of the above reasons, and because Plaintiff has failed to produce evidence establishing a genuine issue of material fact on the threshold issue of his prima facie case, and under Fifth Circuit law, Defendant is entitled to summary judgment on Plaintiff's ADA claims.
B. Same Actor Defense
Although not required to be reached by the Court, in an effort to be thorough and complete, the Court will also address the parties' arguments regarding the "same actor defense." Defendant also argues that Plaintiff has failed to meet the final element of his prima facie case in that Plaintiff has not shown that an adverse employment decision was made because of Plaintiff's alleged disability. See Def. Br. at 4-5, 13-18; Talk, 165 F.3d at 1024-25 (citing 42 U.S.C. § 12112(a)). Defendant argues that Plaintiff's claim is barred by the "same actor defense." See Def. Br. at 13-18. The same actor defense has not been held to apply to ADA cases within this circuit; however, Defendant urges this Court to decide this issue res nova. See Def. Br. at 13 n. 1. Under the same actor defense, when the same actor both hires and fires a plaintiff, there is a presumption that the termination was not likely the result of an improper discriminatory motive. Tellepsen Pipeline Servs. Co. v. NLRB, 320 F.3d 554, 570 n. 4 (5th Cir. 2003) (citing Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996) (noting that the "same actor" presumption in the Fifth Circuit thus far has only been applied to cases involving race, gender, and age discrimination cases)). Defendant argues as follows:
It appears that no court within the Fifth Circuit has applied the "same actor" defense to a case under the ADA, and this is an issue res nova for the Court to decide. Only one unpublished case dealt tangentially with the defense under the ADA. In Haynes v. Gernsbacher's Inc., No. 4:01-CV-594-A, 2002 U.S. Dist. LEXIS 14701, at *10 (N.D. Tex. July 31, 2002), the court held as follows:
[w]hile Brown and Proud were age discrimination cases, their reasoning, context, and logic apply as well or better to issues of gender. See e.g., Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995) (noting that [the same actor] doctrine applies to all types of discrimination, including sex discrimination).
Haynes, 2002 U.S. Dist. LEXIS 14701, at *10 (emphasis added). In the Buhrmaster case, the plaintiff argued that the same actor inference should be limited to age discrimination cases. The court disagreed and held that the general principle applies regardless of whether the class is age, race, sex, or some other protected classification. See Buhrmaster, 61 F.3d at 464. Although the Buhrmaster case is only persuasive in the Fifth Circuit, Judge McBryde in Haynes cited it for the proposition that the same actor defense applies to all types of discrimination. Haynes, 2002 U.S. Dist. LEXIS 14701, at *10. Def. Br. in Supp. at 13-14 n. 1.
Defendant argues that the same actor defense should apply in this case because Mr. Kitten, United's Bakery Director, initially hired Plaintiff before his alleged mental condition surfaced and also gave him his first opportunity to train as a baker and quickly promoted him to the position of Bakery Manager, which entailed a pay raise. See Def. Br. at 14 (citing Def. App. at 25, 29). Defendant further argues that Mr. Kitten re-hired Plaintiff even after (1) Plaintiff gave a false explanation for why he had quit the first time, (2) Plaintiff informed him of his mental and physical condition and that Plaintiff had been hospitalized for the disorder, and (3) Plaintiff informed Mr. Kitten that he was on medications for his alleged disorder. See Def. Br. at 14.
Defendant also argues and cites to testimony by Plaintiff showing that Plaintiff never received any discriminatory comments on the basis of his alleged disability. See Def. Br. at 3, 15-18; Def. App. at 56, 36-37. Moreover, Defendant argues that Mr. Kitten re-hired Plaintiff despite the fact that Plaintiff had abandoned his first job with Defendant without fulfilling his two weeks' notice. See Def. Br. at 15. Thus, Defendant argues, the fact Defendant gave Plaintiff a second chance shows Defendant's good will and proves that the same actor who both re-hired and fired Plaintiff, Mr. Kitten, did not discriminate against Plaintiff on the basis of his alleged disability. Id. Defendant argues that the Court should apply the same actor defense because no valid policy reason exists as to why the defense should apply to cases involving age, race, or gender discrimination claims, but not to disability claims. Id. Defendant cites to a Fifth Circuit case to show that the Fifth Circuit has approved of the reasoning in the Fourth Circuit that "it hardly makes sense to hire workers from a group one dislikes . . . only to fire them once they are on the job." Brown, 82 F.3d at 658 (quoting Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)). Defendant further argues that because Plaintiff's termination occurred within such a short period of time following his re-hire by Mr. Kitten, a strong inference exists that discrimination was not a determining factor. See Def. Br. at 16 (citing Proud, 945 F.2d at 797). Finally, Defendant argues that it would be consistent with this circuit's long history of applying general legal principles found in one type of employment discrimination case to other types of discrimination case. See Def. Br. at 16-17 (citing multiple examples).
Plaintiff responds to Defendant's arguments for applying the same actor defense by arguing that Defendant's use of the defense is improper. See Pl. Br. at 8. Specifically, Plaintiff argues that Defendant has disregarded the Fifth Circuit's holding in Tellepsen, 320 F.3d 554. Id. at 9. Plaintiff argues that the Fifth Circuit has held that "the underlying assumption that discriminatory intent would be manifest at the time of hiring can be overcome where there is change in circumstances between the time of hiring and firing." Id. (quoting Tellepsen, 320 F.3d at 570). Plaintiff also cites to Russell v. McKinney Hosp. Venture, 235 F.3d 219, 228 n. 16 (5th Cir. 2000), as noting that the same actor inference does not necessarily rule out discrimination. Id. Defendant counters in its Reply that in Russell the issue of who had actually hired the plaintiff was a contested issue, whereas in the present case Mr. Kitten was indisputably the same person who hired and demoted Plaintiff. See Def. Reply at 5 (citing to Russell, 235 F.3d 219, as well as to a prior order from this Court in another case).
Plaintiff contends that in this case, as in Tellespen, there was a change in circumstances between the time of hiring and the time of firing, making the same actor defense improper. See Pl. Br. at 9-10. Plaintiff specifically asserts that although Mr. Kitten may have hired Plaintiff with knowledge of his impairment, Mr. Kitten was not aware that accommodations would need to be made with regard to Plaintiff's employment. Id. at 9. Plaintiff argues that only after he was re-hired and began working the night shifts did he approach Mr. Kitten about changing shifts. Id. Plaintiff contends that Mr. Kitten hired Plaintiff without believing he would have to accommodate Plaintiff for his alleged disability, and only after Plaintiff sought accommodation did Mr. Kitten begin to discriminate against Plaintiff. Id.
Plaintiff testified that he had requested changing positions to another of Defendant's stores prior to being specifically diagnosed as bipolar. See Def. App. at 11; Pl. App. at 12.
Defendant counters that when questioned about whether he developed hostility toward Plaintiff as a result of Plaintiff's requested scheduling change, Mr. Kitten expressly denied any hostile feelings. See Def. App. in Supp. Reply Br. at 6. Plaintiff did not direct the Court to any evidence in support of his conclusory allegation that Mr. Kitten sought to discriminate against him. See Pl. Br. at 9-10. Plaintiff states that he was denied a schedule change even though Defendant had an opening for a day-shift baker at another of its stores in Lubbock. See Pl. Br. at 2 (citing to Pl. App. at 129-30). However, Plaintiff has offered no summary judgment evidence showing that other positions in fact existed at other stores; nor has Plaintiff even averred as much in his affidavit.
The Court finds that Mr. Kitten was the same actor who both hired and fired Plaintiff. But because the Court has found that Defendant is entitled to summary judgment on the issue of whether Plaintiff was "disabled," and because the Court has found that Plaintiff has failed to adduce proper summary judgment evidence to create a genuine issue of material fact of which a reasonable jury could find that Plaintiff was discriminated against due to his alleged disability, the Court need not make a specific finding as to whether the same actor defense applies to ADA cases within this circuit.
IV. CONCLUSION
Having found that Plaintiff has failed to adduce proper summary judgment evidence to create a genuine issue of material fact of which a reasonable jury could find that Plaintiff was discriminated against because of his alleged disability on the causation issue of his prima facie case, the Court determines that Defendant is entitled to summary judgment as a matter of law on all Plaintiff's claims. Therefore, the Court GRANTS Defendant's Motion for Summary Judgment.
SO ORDERED.