Opinion
No. 4:03-CV-919-A.
June 16, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, CAE Simuflite, Inc., for summary judgment. The court, having considered the motion, the response of plaintiff, Kenneth R. Hamburger, the reply, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted.
Defendant noted in its answer filed November 6, 2003, that plaintiff had incorrectly named it as "CAE/Simuflite Training International, Inc."
I. Plaintiff's Claims
On September 3, 2003, plaintiff filed his original complaint and, on October 17, 2003, having obtained leave of court, his first amended complaint. Plaintiff alleges:
He was hired by defendant in 1990. In May 1992, he underwent heart bypass surgery. Plaintiff also suffers from hypertension and diabetes. On or about January 9, 2003, plaintiff and eight or ten other employees were called into a meeting with management to discuss certain cutbacks. Each of them then attended a private meeting with management officials to discuss an offer of another position. In plaintiff's private meeting, he was presented a "take it or leave it" offer of a position in the Citation program, a position he had held when he first went to work for defendant. When plaintiff informed management officials that he would need to consult his doctor before accepting the offer, he was told that he must accept immediately or defendant would consider that he had resigned. Because plaintiff failed to accept the offer, he was terminated.
Plaintiff asserts claims under the Age Discrimination in Employment Act, 29 U.S.C. § 621-34, ("ADEA"), under the Americans With Disabilities Act, 42 U.S.C. § 12101-12213, ("ADA"), and under the Texas Commission on Human Rights Act, TEX. LABOR CODE ANN. § 21.106.
II. Grounds of the Motion
Defendant urges three grounds in support of its motion for summary judgment. First, plaintiff cannot prevail on his ADA claim, because he is not disabled and there is no evidence that he was terminated because of a disability. Second, plaintiff cannot prevail on his claim under the ADEA, because the claim is untimely, plaintiff cannot establish a prima facie case of age discrimination, and defendant had a legitimate, nondiscriminatory reason for its decision and plaintiff cannot show that defendant's reason was a pretext for discrimination. Finally, defendant maintains that plaintiff cannot prevail on his state law claims, because those claims are subject to the same test as the federal claims and because plaintiff did not wait the requisite 180 days before filing his lawsuit.
III. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact.Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597. See also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc) (explaining the standard to be applied in determining whether the court should enter judgment on motions for directed verdict or for judgment notwithstanding the verdict).
IV. Undisputed Evidence
The following is an overview of evidence pertinent to the motion for summary judgment that is undisputed in the summary judgment record:Defendant provides business aviation training that includes both classroom instruction and simulator training to pilots and mechanics who fly and work on numerous business-type commercial aircraft. Defendant's headquarters at Dallas/Fort Worth International Airport is the largest business aviation training facility in the world. Defendant employs hundreds of FAA-certified pilot instructors, many of whom are employed by defendant because they are either too old to fly commercially or are medically disqualified from flying. The majority of defendant's instructor pilots are well over the age of forty and many of them have severe medical problems. Plaintiff's boss and a similarly situated co-worker, Gene Bricker ("Bricker"), both have diabetes.
Plaintiff began work for defendant in 1990 in the position of instructor pilot in the Citation program. (A Citation is a particular type of aircraft.) Plaintiff's résumé indicated that his health was excellent. In 1992, plaintiff underwent bypass surgery, but returned to work at the same position without asking for any accommodation. Plaintiff was asked to take over an instructor position in defendant's advanced airmanship program, which he did. There was no medical reason for him to move out of the Citation program, because his medical problems were controlled by a change in lifestyle.
In 2002, plaintiff was diagnosed with Type II diabetes. He does not take insulin or other medication, but controls his diabetes through diet and exercise. Plaintiff's doctors have not placed any limitation on his ability to work except that he needs to work a consistent schedule so that he can eat and rest appropriately. Plaintiff walks, swims, hikes, restores cars, and regularly gardens.
By letter dated April 30, 2003, one of plaintiff's physicians wrote:
Mr. Kenneth Hamburger is a patient of mine. He has had prior bypass surgery in 1992. He has been fairly stable, although he is known to have occlusion of one of his bypass grafts. He also has a history of hypertension, diabetes, and hypercholesterolemia. These have been controlled with medical therapy. He has a history of claudication, but this is not limiting to him at the present time. He is basically doing well on medical therapy and is able to work a normal 40-hour week generally with no restrictions. However, he is not able to work more than a 40-hour week and is not able to do a varied schedule such as working the day shift one day and a night shift the other, as this would make it more difficult for him as far as his medical and diet therapy are concerned.
Def.'s App. at 52.
On February 12, 2002, defendant created and posted for application the position of manager for instructor development and advanced programs. The position was to report directly to William Campbell. Plaintiff did not apply for the position, saying that he and Bricker had each been told that they were "not the right vintage." Def.'s App. at 30. The position was filled on April 23, 2002, by a candidate who was over the age of forty and suffered from diabetes.
In late 2002, in response to a downturn in anticipated business, defendant decided to lay off or reassign twenty-five employees. Two full-time instructor positions in the advanced airmanship program held by plaintiff and Bricker were to be eliminated.
On January 9, 2003, plaintiff met with defendant to discuss his future at the company. Plaintiff was informed that his position was being eliminated, but that he could take an instructor position with the Citation program, the same position he had held following his bypass surgery, and not suffer any decrease in pay or benefits as a consequence of the transfer. Plaintiff said that he had some medical issues he needed to check with his doctor about before accepting the position. Defendant told plaintiff that he would have to make an immediate decision or it would consider that he had resigned. Defendant wanted an immediate decision, because it would be laying off another employee to make room for plaintiff if he decided to accept the Citation position. Because plaintiff did not accept the offer, defendant considered that he had resigned. Bricker, who is older than plaintiff, was made the same offer and accepted it.
On March 25, 2003, plaintiff filed his charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") to initiate a claim with both the EEOC and the Texas Commission on Human Rights. On August 19, 2003, at the request of plaintiff and his counsel, the EEOC issued its notice of right to sue.
V. Whether Plaintiff Can Prevail on His Claim Under the ADA
To establish a claim under the ADA, plaintiff must show that he has a disability, that he was qualified for his position, and that he was subject to an adverse employment decision because of his disability. Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999). The threshold requirement is to establish the existence of a disability, which is defined in pertinent part as a physical impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(2)(A). The terms of the ADA are interpreted strictly to create a demanding standard for qualifying as disabled and the court employs a rigorous and carefully individualized inquiry to determine whether the statutory requirements have been met. Waldrip v. General Elec. Co., 325 F.3d 652, 654 (5th Cir. 2003).
For the purpose of the motion, defendant assumes that plaintiff has an impairment, but contends that it does not affect the major life activities of working and performing manual tasks (the only major life activities plaintiff claims are limited by his health). With regard to working, plaintiff must show that his disability substantially limits his 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. Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999). The inability to perform a particular job does not constitute a substantial limitation in the major life activity of working. Toyota Motor Mfg. Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002). Here, plaintiff has not come forward with any summary judgment evidence to raise a genuine fact issue as to a substantial limitation on his ability to work. Rather, plaintiff himself testified that there were lots of jobs he could have performed. Def.'s App. at 46. Moreover, there is no evidence that plaintiff is in any way limited in his ability to perform manual tasks. See Toyota, 534 U.S. at 200-202.
Plaintiff has made no attempt to point out the number of jobs he cannot perform. See Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998). Plaintiff's inability to maintain an erratic schedule does not amount to a substantial limitation on the activity of working. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995) (inability to perform one aspect of a job while retaining ability to perform the work in general does not amount to a substantial limitation).
Even if plaintiff had established that he has a qualifying disability, he has not come forward with any summary judgment evidence to raise a genuine fact issue as to adverse action because of his disability. Rightly or wrongly, defendant wanted an immediate decision from plaintiff as to whether he would accept the Citation position. That defendant may have made a poor business decision does not raise a fact issue for the jury. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). There is no evidence that plaintiff was terminated for any reason other than his failure to immediately accept the position. Plaintiff's speculation that he was discriminated against is insufficient to raise a genuine fact issue. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429-30 (5th Cir. 1996); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994).
Plaintiff surmises that defendant had no intention of providing any reasonable accommodations to him, but if that were the case there would have been no logical reason for defendant to offer plaintiff the Citation position in the first place. There is no dispute that the only accommodation plaintiff sought before his termination was time to consult his doctor before making a decision.
VI. Whether Plaintiff Can Prevail on His Claim Under the ADEA
To establish a prima facie case of discrimination under the ADEA, plaintiff must show that he is a member of a protected class, that he was qualified for his position, that he suffered an adverse employment action, and that he was replaced by someone outside the protected class, someone younger, or was otherwise discharged because of his age. Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996). Plaintiff's subjective belief that he was discriminated against is insufficient to raise a genuine issue of material fact for trial. Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir. 1985).Here, plaintiff testified at his deposition that his age was not a factor in his termination. Def.'s App. at 43. Rather, his age claim is that he was dissuaded from applying for the manager position posted February 12, 2002, because of the remark that he was not of the right vintage. In a deferral jurisdiction like Texas, an employee must file his charge of discrimination within 300 days of the alleged discriminatory act. 29 U.S.C. § 626(d). Because plaintiff did not file his charge of discrimination until more than 300 days after the position was filled, his claim is time-barred. Tyler v. Union Oil Co., 304 F.3d 379, 384 (5th Cir. 2002); Coke v. Gen. Adjustment Bureau, Inc., 616 F.2d 785 (5th Cir. 1980).
Plaintiff does not contend that equitable estoppel or tolling applies.
Even if the ADEA claim could be pursued, for the reasons previously discussed, plaintiff has not come forward with probative summary judgment evidence to show that defendant's proffered reason for his termination was not the real reason, but a mere pretext for discrimination. In this regard, he has not shown any connection between the alleged statements regarding his "vintage" made one year prior to his termination and his termination. See Brown, 82 F.3d at 655 (statements must be proximate in time to the termination). And, Bricker, who was older than plaintiff and to whom "vintage" statements were also allegedly made, accepted defendant's offer and remains employed by defendant.
VII. State Law Claims
Plaintiff's claims under the Texas Commission on Human Rights Act are subject to the same analysis as the federal claims. See Caballero v. Central Power Light Co., 858 S.W.2d 359, 361 (Tex. 1993). For the reasons previously discussed, plaintiff has not raised genuine fact issues so as to be able to proceed with his claims under the ADA and ADEA. Moreover, as defendant points out, plaintiff did not wait 180 days after filing his complaint with the EEOC before filing suit. His failure to exhaust his administrative remedies precludes pursuit of a civil action under state law. Jones v. Grinnell Corp., 235 F.3d 972, 975 (5th Cir. 2001).
VIII. Order
For the reasons discussed herein,
The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on his claims against defendant; and, that such claims be, and are hereby, dismissed with prejudice.