Opinion
ACTION NO. 4:01-CV-1024-Y
February 6, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is defendant Bell Helicopter Textron, Inc. ("Bell Helicopter")'s Motion for Summary Judgment, filed June 16, 2003. Having carefully considered the motion and the response, the Court concludes that the defendant's motion [doc. # 49-1] should be GRANTED.
I. RELEVANT BACKGROUND
Pro-se plaintiff Bernard Henson, an African-American male, was hired by Bell Helicopter in September 1993 as a firefighter. During his employment, Henson was a member of the Security Police Fire Professionals of America and Amalgamated Local No. 256 ("the union").
The union had entered into a collective bargaining agreement with Bell Helicopter that governed virtually every aspect of the employment relationship between Bell Helicopter and the firefighters.
From 1993 through 1996, Henson began complaining to the union officials and his supervisors about the manner in which shift transfers were made, overtime assignments were given, and holiday schedules were set. Fire Chief Larry Smith investigated these matters to ensure that the collective bargaining agreement between the union and Bell Helicopter was being followed.
The fire department was comprised of 15 to 16 firefighters that were divided into three shifts. Shift one worked from 7:00 a.m. to 3:00 p.m.; shift two worked from 3:00 p.m. to 11:00 p.m., and shift three worked from 11:00 p.m. to 7:00 a.m.
From 1996 to 1997, Henson turned in several shift transfer requests, requesting that he be transferred to either the first or second shift. On February 26, 1997, the plaintiff asked Chief Smith if there was a problem with the way his request for transfer was worded because James Jones, Henson's union representative, had told Henson that the union would not accept a transfer request that did not specify a single shift. Chief Smith advised Henson that he would accept Henson's shift request, but that Henson should discuss the matter with the union.
On February 27, 1997, Henson complained to Chief Smith that Jones had confronted and harassed him about the shift transfer requests in the presence of other employees. Chief Smith investigated this matter and determined that there had been no physical confrontation or racial harassment. As a result of the incident, on March 28, 1997, Henson filed a charge of discrimination with the Forth Worth Human Relations Commission and the Equal Employment Opportunity Commission ("EEOC"), alleging that the union had discriminated against him based on his race. On May 1, 1997, after an opening became available, Chief Smith approved Henson's request to transfer from third shift to second shift.
Henson, in a letter dated March 26, 1997, that he allegedly gave to Chief Smith, states:
In 1995, Mr. Friend a white male and at the time on 2nd shift, and Mr. Johnson a white male on 1st shift participated in a voluntary shift change. Their initial AVO read: I request a shift change for "90" days. Myself and a few other 2nd and 3rd shift firemen understood this just as it read. That is, after 90 days both men would be back to their previous shift. What we did not know (that more senior members knew — including Mr. Jones) was there's no rule that says a person has to transfer back to a previous shift. Ninety (90) days later Mr. Johnson was moved back to first shift and Mr. Friend stayed on first shift with him. Mr. Jones was well aware of my desire to be on first shift. When I questioned him about my seniority over Mr. Friends, he informed me that he was bound by the contract. Since Mr. Jones was well aware of this "gray area" of the contract I suggest again that he allowed this transfer without even a conversation to other union officials concerning my seniority and this shift transfer because of my race. At the time all union officials denied ever seeing an AVO statement indicating the "90" day request. However at the March 1997 monthly union meeting Mr. Steadmen admitted he advised both men to rewrite their AVO's since there's no such thing as a change of shift for 90 days. Mr. Hewitt was present at this meeting. During the discussion's involving shift transfer Mr. Jones said to me: "You know Henson if you don't stop questioning things around here management will eventually find a way to get rid of you."
(Pl.'s App. at 52.)
On August 29, 1997, the EEOC dismissed the charge and notified Henson of his right to sue.
During his employment with Bell Helicopter, Henson had ongoing problems with absenteeism and tardiness. From 1993 through 1997, Chief Smith repeatedly counseled Henson about his excessive absenteeism. Henson claimed that his excessive lost time during this period was due to the failure of the accounting department to deduct his excused military time. Another firefighter, Robert Britt, also claimed that his military time was not being deducted in a timely manner. Chief Smith advised both Henson and Britt to verify that the accounting department had all the documents needed to properly account for their military time.
On October 30, 1997, Henson was counseled on his "mis-use of the Timekeeping Wand System located inside Guard Gates." (Pl.'s App. at 28.) In response to this counseling, Henson wrote:
I (Bernard Henson) see this disciplinary action/counseling as a direct retaliatory action to my complaint of unfair treatment in regards to the incident between Mr. J.B. Jones and myself. I asked Mr. Eaves did everyone receive a written counseling, since I personally have seen every member of the Fire Department clock in or out at different times at various gates since we initiated the policy of not signing in or out at guard shacks. I could see the need for this counseling if there were a significant problem from a guard or a reason to assume an employee were attempting to cheat the company in some way but that is not the case here. I consider this to be harassment by management. A deliberate attempt to establish a negative paper trail against me. . . .
(Pl.'s App. at 28.)
According to Bell Helicopter's attendance policy, an employee's "lost time" could not exceed 64 hours in any one twelve-month period or the employee was subject to disciplinary action. Lost time for (2) holidays, (3) vacation, (4) bereavement, (5) jury duty, (6) disciplinary times off, (7) approved union business, (8) approved education leave, (9) approved military leave, (10) approved personal leave, (11) Family Medical Leave Act leave, and (12) temporary layoffs were not included in the 64-hour limit.
In 1999, Henson consulted with Bell Helicopter's Employee Assistance Program ("EAP") about family problems he was having as a result of his divorce. Chief Smith was aware that Henson was undergoing counseling with the EAP and agreed to allow Henson to come in late during the months of April and May 1999 so that Henson could attend counseling sessions. From April 22, 1999, to May 5, 1999, Henson was late a total of 1.9 hours, and Chief Smith did not count this time toward Henson's lost time.
Henson claims that he wanted to attend full treatment sessions from 10:00 a.m. through 3:00 p.m., but that Chief Smith would not accommodate this request. (Pl.'s Resp. at 5.) In addition, Henson attaches a medical discharge summary that states:
The client attended 5 sessions of treatment. He wa[s] an active participant who benefitted from the program. Due to schedule conflicts at work that were unable to be resolved, it was necessary for the client to be discharged from the program.
(Pl.'s App. at 7.)
In addition, on June 8, 1999, Henson took Family and Medical Leave to have surgery on his toes. On July 21, 1999, Henson met with Bell Helicopter's medical staff and was released to return to work with restrictions on lifting, bending, and walking. Henson told Chief Smith that he wanted to work at a desk for two weeks so that he did not have to walk. However, because one of Henson's main job responsibilities involved performing building and fire extinguisher inspections, Chief Smith informed Henson that he could not accommodate the walking restriction, but that Henson could sit down and rest between inspections. Henson left and returned several days later to full duty.
In his affidavit, Chief Smith states:
The Fire Department does not have any light duty positions. In the past, when a Firefighter was injured and returned to work with restrictions from a doctor, we tried to accommodate them if possible. I can remember only three Firefighters that returned to restricted duty. These were Fernando Rodriguez, Robert Britt and Edward Judson. All three of these men had lifting restrictions which we were able to accommodate. None of them had any restrictions on walking that would prevent them from performing their duties. Another Firefighter, Kevin White, was bitten by a snake while he was on duty. Mr. White was treated by the on-site medical facility and returned to work without any restrictions.
(Def.'s App. at 162.)
Henson claims, in his response, that White, Britt and Rodriguez were all given accommodations that included answering phones, dispatching, or driving equipment. (Pl.'s Resp. at 5.)
From January 31, 1998, to January 31, 1999, Henson accumulated 65.9 hours of lost time after all applicable approved leave was deducted. Consequently, on February 1, 1999, Deputy Chief Roy Eaves verbally counseled Henson about his absenteeism. In a memo to Chief Smith regarding the consultation with Henson, Eaves wrote, "I am aware of some very serious family problems that Mr. Henson is having at this time." (Def.'s App. at 145.)
Between January 31, 1999, and April 29, 1999, Henson was either late, left early, or was absent 20 additional days. Henson was further counseled for absenteeism in October 1999 and December 1999. As of January 30, 2000, Henson had been absent 90. 6 hours during 1999. On February 9, Chief Smith gave Henson a written reprimand for being late 36 times, leaving early 5 times, and being absent for 7 days for a total of 101.6 hours between January 30, 1999, and January 30, 2000. Between February 9, 2000, and May 23, 2000, Henson was late on 13 different days, which resulted in an additional 5.4 hours of lost time.
In an interoffice memo to Henson, dated December 1, 1999, Chief Smith wrote:
February 15, 1999 you were counseled with on [sic] your poor attendance record. Due to your personal problems this office agreed to work with you through the month of May 1999. June 8, 1999 to July 23, 1999 you were off on medical leave. This office again counseled with you to improve your attendance. On October 27, 1999 I met with you again to inform you that your attendance record had not improved since returning from medical leave and that you must show some improvement during the next month. Since that time your lost time has increased from 111.0 hours to 119.7 hours. The number of days your reported late to work during this period increased from 28 to 33 times. If your non-attendance record increases within the next thirty days this office will initiate a written warning and if no improvement occurs disciplinary action will be taken.
(Def.'s App. at 147.)
The reprimand stated:
Mr. Henson, you are hereby warned that your excessive absenteeism will not be tolerated.
A failure on your part to correct this problem immediately will result in further and more severe disciplinary action.
(Def.'s App. at 148.)
Between January 2000 and May 2000, Chief Smith discovered that Henson frequently left the facility while on duty. Many times Henson only went out of the gates for a few minutes, but on at least 11 occasions he was away from the facility during his shift for between 10 minutes and 1 ½ hours. In addition, on one day, Henson left the facility five times.
On May 23, 2000, Bell Helicopter held a disciplinary hearing, charging Henson with "Leaving the Facility While on Duty." (Def.'s App. at 150.) At the end of the hearing, Henson was terminated. Subsequently, the union acted on behalf of Henson and convinced Bell Helicopter to reinstate Henson and suspend him without pay. As a result, Henson was reinstated on July 17, 2000, with no loss of seniority or benefits.
Upon his return to duty, Henson continued to have excessive lost time. On July 18, 2000, Henson requested a transfer to first shift. Plaintiff's request was granted, effective August 13. On the first day of his new shift, Henson was late. Between his return to duty on July 18, 2000, and September 19, 2000, Henson was late 12 times. On September 20, 2000, Bell Helicopter held a disciplinary hearing, which resulted in Henson being terminated for excessive absenteeism.
On January 1, 2001, Henson filed a charge of discrimination with the EEOC. Thereafter, on April 4, 2001, Henson filed an amended charge of discrimination with the EEOC. The EEOC issued a right-to-sue letter on September 26, 2001. Henson filed suit against Bell Helicopter on November 26, 2001, asserting claims for discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, ("Title VII"), the Family Medical Leave Act ("FMLA"), and the Americans With Disabilities Act ("ADA"). He is currently employed at the Dallas-Fort Worth Airport.
In this charge, Henson stated:
I was retaliated against by being pass[e]d over for shift changes twice since my first complaint of discrimination.
I was retaliated against by being suspended and ultimately terminated.
RESPONDENT'S REASON FOR ADVERSE ACTION:
Fire Chief Larry Smith only told me that they were bound by Union Contract to honor shift changes.
Fire Chief Larry Smith told me that I was being suspended for dereliction of duties and excessive absenteeism, and that I was finally being terminated for excessive absenteeism.
DISCRIMINATION STATEMENT
I believe I have been discriminated against because of my race, black, color, black, national origin, African American and in retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Texas Commission on Human Rights Act and because I am being regarded as disabled and because of a record of a disability, in violation of the Americans With Disabilities Act of 1990.
(Def.'s App. at 1-2.)
Henson's current pleading is his Second Amended Complaint that was filed on November 13, 2002.
II. SUMMARY-JUDGMENT STANDARD
Summary judgment is proper when the record establishes "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." FED. R. Civ. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).
In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. Civ. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.
To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).
When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
III. ANALYSIS
A. Exhaustion of RemediesBefore a plaintiff may file a civil action under Title VII or the ADA, he must exhaust administrative remedies, which include filing a charge of discrimination with the EEOC within 300 days after the alleged violations occurred and filing suit within 90 days after receiving a right-to-sue letter from the EEOC. See 42 U.S.C.A. § 2000e-5(b), (e), (f) (West 1994); 42 U.S.C.A. § 12117 (West 1994); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1288 n. 3 (7th Cir. 1993); McSherry v. Trans World Airlines, Inc., 81 F.3d 739, 740 n. 3 (8th Cir. 1996) (noting that ADA incorporates procedures outlined in Title VII); Dade v. Southwestern Bell Telephone Co., 942 F. Supp. 312, 317 (S.D. Tex. 1996) (stating that the ADA "requires a claimant to file a charge with the EEOC within 300 days after the alleged unlawful employment practice"); Dao v. Auchan Hypermarket, No. H-95-2619, 1995 WL 902483, at *l-*2 (S.D. Tex. Dec. 5, 1995). These administrative requirements are conditions precedent to filing a civil suit for relief under Title VII or the ADA. See Taylor v. Books A Million, Inc., 246 F.3d 376, 379 (5th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 470 (7th Cir. 1991). However, such administrative requirements are not jurisdictional prerequisites but are requirements that, like a statute of limitations, are subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Therefore, in a Title VII or an ADA action, the Court must examine whether the plaintiff has either alleged compliance with the statutory conditions or demonstrated an equitable basis for modifying the requirements. See Perkins, 939 F.2d at 470.
Generally, the limitations period begins on the date the discriminatory act occurred, and a plaintiff cannot sustain her claims based on incidents occurring prior to the 300-day period. See Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989). Any act occurring outside the applicable filing period "may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977); Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 n. 12 (5th Cir. 1995).
"However, "it is unnecessary for a plaintiff to exhaust administrative remedies prior to filing suit for a retaliation claim growing out of an earlier charge; a district court has jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court." Swanson v. Civil Air Patrol, 37 F. Supp.2d 1312, 1328 (M.D. Ala. 1998).
In this case, Henson filed an initial charge of discrimination on January 22, 2001. Consequently, any claims that Henson seeks to assert that occurred before March 29, 2000, which is 300 days prior to January 22, 2001, are barred unless Henson has demonstrated an equitable basis for modifying the requirements. Because Henson has not done so, the Court will not consider any claims of discrimination under Title VII or the ADA that occurred before March 29, 2000.
B. Title VII Claims
1. Discrimination Claims
Henson claims that he was discriminated against when Bell Helicopter suspended him without pay and, ultimately, discharged him. Title VII makes it "an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . [or] sex." 42 U.S.C.A. § 2000e-2(a)(1) (West 2003). Racial-discrimination claims based upon circumstantial evidence, such as this one, are evaluated under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). See, e.g., Evans v. City of Houston, 246 F.3d 344, 349-50 (5th Cir. 2001). Under the McDonnell-Douglas framework, the plaintiff must first establish a prima-facie case of discrimination. See Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2002). If the plaintiff establishes a prima-facie case, then a presumption of discrimination arises and the burden shifts to the defendant to articulate — but not prove — a legitimate nondiscriminatory reason for the adverse employment action. See McDonnell Douglas Corp., 411 U.S. at 802; Evans, 246 F.3d at 350. If the defendant meets its burden of production, then the presumption of intentional discrimination is rebutted and the burden shifts back to the plaintiff to show that the reason proffered by the defendant is merely a pretext for discrimination. See McDonnell Douglas Corp., 411 U.S. at 802; see also Evans, 246 F.3d at 350.
"It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (citing Tax. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Plaintiffs may show pretext "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; Amburgey v. Corhart Refractories Corp, Inc., 936 F.2d 805, 813 (5th Cir. 1991).
As the Supreme Court acknowledged in Beeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000), "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false" may be sufficient to infer discrimination. Reeves, 530 U.S. at 148. The Supreme Court has also made it clear, however, that "instances [exist] where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." Id.
Even assuming that Henson has established a prima-facie case of discrimination, Bell Helicopter has articulated a legitimate, non-discriminatory reasons for suspending Henson without pay and for discharging him — that Henson repeatedly violated Bell's absenteeism policies. Thus, the burden shifts back to Henson to show that the reason proffered by Bell Helicopter is merely a pretext for discrimination.
Henson argues that pretext is shown by Bell Helicopter's failure to equally apply its company code of conduct to all of its employees. Henson claims that other employees that had problems with absenteeism and tardiness were not suspended without pay and terminated. Henson has failed, however, to produce non-conclusory evidence showing or implying that Bell Helicopter treated other employees that had similar problems with excessive absenteeism or tardiness differently or that Bell Helicopter's reason for suspending him and terminating him were pretextual and that the real reasons were based on race.
Chief Smith, in his affidavit, stated:
During my years with Bell, I have verbally counseled and given reprimands to numerous employees of all races concerning absenteeism. Besides Mr. Henson, the only other employee that I discharged for excessive absenteeism was Terry Hedrick. One employee named James Simmons was in danger of being discharged for absenteeism, however, he was discharged for dereliction of duty. Both Mr. Hedrick and Mr. Simmons were Caucasian. Neither Messrs. Hedrick nor Simmons or any other employee that ever worked for me in the Fire Department at Bell had Absenteeism problems even as half as bad as Mr. Henson. Because I felt that Mr. Henson had the skills and training to be a good firefighter, I tried to give him every opportunity to fix this problem. However, despite the numerous opportunities I gave him nothing seemed to work.
(Def.'s App. at 160-61.)
Instead, the evidence indicates, and Henson does not deny, that he was for many years excessively absent from or tardy to work and that Bell Helicopter repeatedly gave him opportunities to improve his attendance. When Henson failed to do so, Bell Helicopter eventually terminated him. See Hicks v. Adveco TAD/Technical, No. CA 3:01-CV-0430-R, 2002 WL 484659, at *5 (N.D. Tex. 2002) (stating that the "summary judgment evidence establishes that Plaintiff was not terminated because she reported the alleged sexual harassment, but because of her poor attendance and excessive absenteeism); Moore v. Tuesday Morning, No. Civ. A. 3:98-CV-2662-L, 2000 WL 31725, at *5 (N.D. Tex. 2000). Because Henson has failed to provide evidence of pretext, Bell Helicopter is entitled to summary judgment on this claim. See E.E.O.C. v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir. 1984) ("[P]retext cannot be established by mere `conclusory statements' of a plaintiff who feels he has been discriminated against").
2. Retaliation Claims
Henson claims that Bell Helicopter retaliated against him for filing a charge of discrimination against the union in 1997 by suspending him without pay and, ultimately, terminating him. Title VII makes it unlawful for any employer to retaliate against an employee for bringing a charge under Title VII. See 42 U.S.C.A. § 2000e-3(a) (West 2003). Retaliation claims based upon circumstantial evidence, such as this one, are also evaluated under the burden-shifting framework established in McDonnell Douglas, supra. See Evans, 246 F.3d at 352-54 (5th Cir. 2001).
"The `causal link' required in prong three of the prima facie case for retaliation is not as stringent as the `but for' standard." Evans, 246 F.3d at 354. In addition, "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decision." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).
The first issue is whether Henson has established a prima-facie case of retaliation. To establish a prima-facie case for retaliation under Title VII, a plaintiff must show: (1) the plaintiff engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. See Haynes, 207 F.3d at 299; Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). The causal connection can be inferred from circumstantial evidence, such as showing the employer had knowledge that the plaintiff engaged in a protected activity and showing the temporal proximity of that activity to the alleged retaliatory action. See Evans, 246 F.3d at 354; Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).
In this case, there is no competent summary-judgment evidence of a causal connection between Henson's filing of a charge of discrimination against the union in March 1997 and his suspension and termination by Bell Helicopter over three years later in 2000. Even assuming that Chief Smith was aware that Henson filed a charge of discrimination against the union, that charge of discrimination was against the union and not Chief Smith or Bell Helicopter. In addition, there is no evidence, beyond Henson's own conclusory allegations, that Henson's filing of his charge of discrimination three years earlier played any role in Chief Smith's decision to suspend and terminate Henson. See, e.g., Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999) (stating that an employee's subjective belief that he has been the victim of discrimination is not sufficient to establish any causal connection in a Title VII case).
Furthermore, even assuming that Henson's prima-facie burden had been met, Bell Helicopter has demonstrated a sufficient legitimate nondiscriminatory reason for Henson's suspension and termination, and Henson has presented no evidence that Bell Helicopter's reason was merely a pretext for retaliatory purposes. Consequently, Bell Helicopter is entitled to summary judgment on this claim.
C. Americans With Disabilities Act Claims
1. Employment Discrimination
The ADA prohibits discrimination in employment against qualified persons with a disability. See 42 U.S.C.A. § 12112(a) (West 2002). The plaintiff can establish a claim of discrimination under the ADA through either direct or circumstantial evidence. See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). Because direct evidence of discriminatory intent is rare, most ADA plaintiffs must travel through the familiar burden-shifting framework established in McDonnell Douglas Corp., supra. See Alien v. Rapides Parish School Brd. 204 F.3d 619, 623 n. 3 (5th Cir. 2000).
"Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995).
Based on the foregoing, the first issue is whether the plaintiff has established a prima-facie case of discrimination under the ADA. "To establish a prima facie discrimination claim under the ADA, [the plaintiff] must show that he was disabled, was qualified for the job, and was the subject of an adverse employment action because of her disability." Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 613 (5th Cir. 2001); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999). The ADA defines "disability" as either (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such an impairment, or (3) being regarded as having such an impairment. See 42 U.S.C. § 12102(2) (West 2002). In this case, Henson appears to claim that he falls under the first definition. (Pl.'s Resp. at 5.)
With respect to the first definition of disability, in order to defeat summary judgment, the plaintiff must "(1) have a mental or physical impairment that (2) substantially limits (3) a major life activity." Dupre, 242 F.3d at 613 (citing Bragdon v. Abbott, 524 U.S. 624 (1998)). Henson claims that he suffers from depression as a result of his divorce, which caused him to be occasionally absent or tardy to work. Because depression can be considered a mental impairment under the ADA, the issue is whether this condition substantially limits one of Henson's major life activities. See Seaman v. C.S.P.H., Inc., No. Civ. A. 3:96-CV-2165-P, 1997 WL 538751, at *10 (N.D. Tex. Aug. 25, 1997).
"Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1050 (5th Cir. 1998) (quoting 29 C.F.R. § 1630.2(1)). "They are the activities that are `of central importance to daily life, that, for most people, require little or no difficulty to perform.'" Norman v. Southern Guar. Ins. Co., 191 F. Supp.2d 1321, 1334 (M.D. Ala. 2002) (citing 29 C.F.R. § 1630.2(i)). With respect to this issue, Henson claims that his depression interfered with his major life activities of working and learning.
As to learning, Henson states:
The plaintiff was forced to withdraw from an EMT course in February of 2000. He explained to Deputy Fire Chief Roy Eaves that he could not concentrate to read or read, understand, and recall information that he was to study for EMT certification. For this reason, plaintiff cites the disability of learning.
(Pl.'s Resp. at 5.)
Even assuming that Henson's depressive disorder does affect his major life activity of working or learning, there is no evidence that such impairment substantially limits his major life activities. For an impairment to be a substantial limitation, it must result in a severe restriction on a major life activity and not merely a slight or partial limitation. See, e.g., Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 871 (2d Cir. 1998) (stating that periodic symptomatic colitis did not substantially limit employee's ability to care for herself even though it resulted in employee's soiling herself). "Although almost any impairment may, of course, in some way affect a major life activity, the ADA clearly does not consider every impaired person to be disabled." Id. at 870. Therefore, Courts must carefully distinguish between impairments that "merely affect major life activities from those that substantially limit those activities." Id.
For an impairment to be substantially limiting, the individual must be either (1) unable to perform a major life activity that the average person in the general population can perform or (2) 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 that same major life activity. See Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000) (citing 29 C.F.R. § 1630.2 (j)(1)). Henson does not appear to claim that he cannot perform his major life activities, but claims that he is significantly restricted in performing his major life activities of working and learning due to his depression. Whether an impairment is substantially limiting depends on "(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." Butcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (citing 29 C.F.R. § 1630.2(j)).
To determine whether a plaintiff's disability has substantially limited his ability to work generally, courts frequently consider: (1) the geographical area to which plaintiff has reasonable access and (2) the job from which the individual's impairment disqualified him and the number and types of jobs utilizing (and those not utilizing) similar training, knowledge, skills, or abilities, within that geographical area from which the individual's impairment also disqualified her." Lusk v. Christ Hosp. Med. Ctr., No. 98 C 1198, 2000 WL 263975, at *6 (N.D. Ill. March 6, 2000) (citing 29 C.F.R. § 1630.2(j) (3)).
To prove that he was substantially limited in the major life activity of working, the plaintiff "is required to demonstrate that h[is] [depressive disorder] precluded h[im] from a class of jobs or a broad range of jobs." Dupre, 242 F.3d at 614; see also 29 C.F.R. § 1630.2(j)(3) (2003). "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Pryor v. Trane Co., 138 F.3d 1024, 1027 (5th Cir. 1998) (quoting 29 C.F.R. § 1630.2 (j)(3)(i) (2002)). In addition, to prove that he was substantially limited in the major life activity of learning, the plaintiff is required to provide evidence demonstrating that he experienced greater difficulty than anybody else in learning new material. See Doyal, 213 F.3d at 497-98 (holding that plaintiff was not significantly restricted in learning when she failed to provide evidence, as required under 29 C.F.R. § 1630.2 (j) (2002), suggesting that she experienced greater difficulty than anybody else in learning new material).
The Court is also to consider the effects of corrective or mitigating measures, both positive and negative, on the impairment. See Button v. United Airlines, Inc., 527 U.S. 471, 480-81 (1999).
Although Henson's depression appears to be causing him some difficulties in his life, there is no competent summary judgment evidence that he, as compared to the average person in the community, is significantly restricted by his disorder or that he is substantially limited in his ability to work at a class of jobs or a broad range of jobs. In support of his claims, Henson attaches various documents, dated between 1997 and 2003, showing that he has been diagnosed with depression, attended counseling for depression, and received treatment for depression. ( See, e.g., Pl.'s App. at 5, 7, 12-14, 19-24.) However, there is no evidence that Henson's depression significantly affected his ability to work or learn. In addition, the fact that Henson was able to obtain employment after being discharged from Bell Helicopter belies his claim that his disability limited his ability to work. See Lusk, 2000 WL 263975, at *6 (citing Harrington v. Rick Lake Weighing Sys., Inc. 122 F.3d 456, 460 (7th Cir. 1997) (An inability to perform one particular job, a portion of one particular job for a single employer, or increased discomfort while performing a major life activity does not constitute a substantial limitation)). Because Henson has not raised a genuine issue of material fact that he had an impairment that substantially limited one of his major life activities, Bell Helicopter is entitled to summary judgment.
Even assuming that Henson was disabled, his prima-facie case would still fail since he has not shown that he was qualified for his job because of his attendance and tardiness problems. See Kotlowski v. Eastman Kodak Co., 922 F. Supp. 790, 798 (W.D.N.Y. 1996). Henson's attendance and tardiness problems, as discussed above, are well documented and began early on in his career with Bell Helicopter. Henson, in fact, does not dispute that he had a problem with being absent and tardy. "The ADA does not require an employer to accommodate an employee who cannot get to work." Id. Henson's inability to get to work on time, if at all, made him unqualified to perform the functions of his job. See id., see also Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 850 (8th Cir. 2002); Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) ("`An essential element of any . . . job is an ability to appear for work . . . and to complete assigned tasks within a reasonable period of time'") (citing Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)).
B. Reasonable Accommodation
Discrimination under the ADA includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C.A. § 12112(a) (West 1995). Because, as discussed above, there is no evidence that Henson was disabled, as defined by the ADA, he was not entitled to a reasonable accommodation. See McDonald v. Commonwealth of Pennsylvania, 62 F.3d 92, 97 (3d Cir. 1995) (employer is not required to provide reasonable accommodation unless employee is disabled).
D. Family Medical Leave Act Claim
Henson claims that his rights under the FMLA were violated when: (1) Bell Helicopter refused to accommodate his request in April 1999 to attend an outpatient counseling program at All Saints Hospital and (2) Bell Helicopter counseled and, ultimately, terminated Henson "based on missed time hours during a period of time where Bell Supervision said they would work with him." (Pl.'s Resp. at 4.)
1. Request to Attend Counseling Program
"The statute of limitations for FMLA claims is three years for willful violations, see 29 U.S.C. § 2617(c)(2), and two years for all other violations, see 29 U.S.C. § 2617 (c)(1). See Gray v. Sears, Roebuck Co., Inc., 131 F. Supp.2d 895, 901 (S.D. Tex. 2001). In this case, there are no allegations that Bell Helicopter willfully violated Henson's rights under the FMLA; consequently, the two-year statute of limitations is applicable. Henson filed his complaint against Bell Helicopter in November 2001. Because Henson's claim that Bell Helicopter failed, in April 1999, to grant him leave under the FMLA so that he could attend counseling sessions for his depression occurred over two years prior to November 2001, such claim is not timely filed. Consequently, Bell Helicopter is entitled to summary judgment on this claim.
"[T]o establish a willful violation of the FMLA, a plaintiff must show that `the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.'" Hillstrom v. Best Western TLC Hotel, No. 03-1972, 2003 WL 23095252, at *5 (1st Cir. Dec. 31, 2003) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)).
2. Counseling and Termination for Excessive Absences
The purposes of the FMLA include "balanc[ing] the demands of the workplace with the needs of families" and "entitl[ing] employees to take reasonable leave for . . . the care of a . . . spouse . . . who has a serious health condition." 29 U.S.C.A. § 2601(b) (1) (2) (West 1999). The FMLA seeks to accomplish these two purposes "in a matter that accommodates the legitimate interests of employers." 29 U.S.C.A. § 2601(b)(3) (West 1999); see also 29 C.F.R. § 825.101(b) (2002) ("The enactment of the FMLA was predicated on two fundamental concerns — the needs of the American workforce, and the development of high-performance organizations"). Under the FMLA, an eligible employee is entitled to 12 work-weeks of leave in a 12-month period for several reasons, including "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C.A. § 2612(a)(1)(D) (West 1999). To determine whether an employee's leave request qualifies for FMLA protection, the employer must assess whether the request is based on a "serious health condition," and, for that purpose, may request supporting medical documentation. See 29 U.S.C.A. §§ 2613 2612(a)(1)(C) (West 1999); 29 C.F.R. § 825.302(c) (2002). Leave taken by an employee for a serious health condition may be taken intermittently or on a reduced leave schedule when medically necessary." Lottinger v. Shell Oil Co., 143 F. Supp.2d 743, 769 (S.D. Tex. 2001) (citing 29 U.S.C. § 2612(b)(1)).
The Act applies to private-sector employers of 50 or more employees. 29 U.S.C.A. § 2611(4) (West 1999). An employee is "eligible" for FMLA leave if he has worked for a covered employee for at least 1,250 hours during the preceding 12 months. 29 U.S.C.A. § 2611(2) (West 1999).
"To present a claim under the FMLA, a plaintiff must show (1) [he] is an eligible employee under the FMLA, (2) defendant is an employer subject to the requirements of the FMLA, (3) [he] was entitled to leave under the FMLA, (4) [he] gave notice to the defendant of [his] intention to take FMLA leave, and (5) the defendant denied [him] the benefits to which [he] was entitled under the FMLA." Parker v. Hanhemann Univ. Hosp., 234 F. Supp.2d 478, 483 (D. N.J. 2002). The employee bears the burden of proving that he was entitled to FMLA leave and that the employer violated the statute by denying him such leave. See De Hoyos v. Bristol Lab. Corp., 218 F. Supp.2d 222, 224 (D. P.R. 2002). In this case, the parties do not dispute the first two elements: that Henson was an eligible employee and Bell Helicopter is an employer subject to the requirements of the FMLA. However, the parties do disagree over elements three and four: whether Henson was entitled to FMLA leave and whether he gave notice to Bell Helicopter of his intention to take such leave.
Bell Helicopter claims that it is entitled to summary judgment for two reasons: (1) Henson has failed to show that he suffered from a "serious health condition" and (2) Henson failed to request or notify Bell Helicopter that he needed a leave of absence. Even assuming that Henson's depression constitutes a "serious health condition" under the FMLA, when the need for FMLA leave is unforeseeable, an employee "should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303 (2002).
With respect to notice, the regulations further state:
It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave . . . to care for a family member with a serious health condition, written advance notice pursuant to an employer's internal rules and procedure may not be required when FMLA leave is involved. . . . The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee or spokesperson will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation.29 C.F.R. § 825.303 (2002) (emphasis added). "What is practicable, both in terms of the timing of the notice and its content, will depend upon the facts and circumstances of each individual case." Satterfield v. Wal-Mart Stores, Inc. 135 F.3d 973, 977 (5th Cir. 1998). "The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition." Id.
In this case, Henson complains that his excessive tardiness and absence from work should have been considered leave under the Family Medical Leave Act and not used as a reason to terminate him. Henson, however, admits in his deposition that he was late or absent for a variety of reasons, including suffering from depression, having traffic problems, attending to legal issues surrounding his divorce, managing his household, and caring for his children. Although Bell Helicopter may have been aware that Henson was suffering from depression, Bell Helicopter is still entitled to the sort of notice that will inform it that the FMLA may apply. Henson seems to imply that he has a right to take unscheduled leave at a moment's notice whenever he wants. However, "Courts have been reluctant to read the FMLA as allowing unscheduled and unpredictable, but cumulatively substantial, absences, when the [ADA] protects only persons who over the long run are capable of working full time." See, e.g., Collins v. NTN-Bower Corp., 272 F.3d 1006, 1007 (7th Cir. 2001) (citing EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) and Devito v. Chicago Park Dist., 270 F.3d 532 (7th Cir. 2001)). In this case, the evidence does not support Henson's claims that he properly notified Bell Helicopter of his need for FMLA leave. Instead, the evidence shows that Henson, although informing Bell Helicopter that he was suffering from depression and family problems, was late or tardy for a wide variety of reasons, some of which had nothing to do with his depression. There is no evidence that Henson properly notified Bell Helicopter of his need to take time off so that he could deal with his depression. "Although workers need not expressly assert rights under the FMLA . . . [,] employers still are entitled to the sort of notice that will inform them . . . that the FMLA will apply. See Collins, 272 F.3d at 1008. Because Henson failed to provide the appropriate notice, Bell Helicopter is entitled to summary judgment on this claim.