Opinion
No. SA-00-CA-1066 HG
June 10, 2002
ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT'S MOTION TO DISMISS OR. ALTERNATIVELY, FOR SUMMARY JUDGMENT
I. Introduction
Plaintiff, Beverly J. Hurston, alleges in this suit that defendant, the United States Postal Service, discriminated against her on the bases of race (Black), age (fifty-one years old) and disability (lower back condition) when on March 18, 1997, it failed to select her for one of the six part-time flexible distribution clerk positions available at the Post Office facility, in New Braunfels, Texas. She claims employment discrimination under three federal statutes: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12102 et seq.
Docket Entry 2, at 1.
The record of this case shows that a year after the non-selection made the basis of this suit, plaintiff secured employment as a part-time flexible clerk at one of defendant's locations in San Antonio. She remains employed in that capacity at the present time. Through the filing of this suit, plaintiff seeks reinstatement rights retroactive to her alleged discriminatory non-selection on March 18, 1997, including "step increases, seniority, vacation time, holiday and overtime pay as well as enrollment in the Thrift Saving Plan." Plaintiff also seeks compensatory damages in the amount of $300,000, and further requests that she be allowed to relocate outside of the San Antonio area because she is in fear of reprisal. On September 28, 2001, upon the parties' consent and consistent with 28 U.s.c. § 636(i), the case was assigned to me for all purposes, including trial and entry of judgment.
Docket Entry 1, at 5.
Id. and Plaintiff's EEO Investigative Affidavit, provided as an attachment to her federal court complaint.
Docket Entry 32.
Defendant has moved to dismiss, or alternatively, for summary judgment, on all of plaintiff's causes of action. Regarding plaintiff's race and age claims, defendant argues that while there is no dispute that plaintiff has established her prima facie burden for bringing such claims, she cannot show that defendant's proffered reason for not selecting her for the position (namely, productivity deficiencies faced by plaintiff at her then most recent employment) was a pretext to discriminate against heron the bases of her race and/or age. With respect to plaintiff's disability claim under the ADA, defendant advances two arguments: (1) that this court lacks subject-mailer jurisdiction because the ADA does not apply to federal agencies such as defendant; and plaintiff has failed to plead a cause of action for disability or handicap discrimination under the proper statute ( i.e., the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.); and (2) that even if this court were to have jurisdiction over plaintiff's disability claim, the claim nevertheless fails because she cannot prove her prima facie element that she has a physical impairment that substantially limits one or more major life activities.
Docket Entry 27.
Id. at 7-9.
Id. at 9-10.
Having reviewed the arguments made by the parties, the summary judgment record as a whole, and the applicable legal standards, I hereby find that defendant's summary judgment motion on plaintiff's race and age discrimination claims should be denied, and that defendant's motion to dismiss plaintiff's ADA claim should be granted. Plaintiff has brought forth sufficient evidence that, in conjunction with her prima facie case, presents a fact issue as to whether the defendant's stated reason for not selecting her was based on legitimate reasons or was a pretext to discriminate against her on the bases of her race and/or age. Regarding plaintiff's ADA claim, the claim should be dismissed as a mailer of law on the basis that this court does not have subject-mailer jurisdiction over the claim as defendant is an entity outside the scope of the Act's reach. Further, even if I were to address the substantive merits of plaintiff's disability claim, whether raised under the ADA or the Rehabilitation Act, the claim fails because plaintiff cannot meet her prima facie burden of establishing disability discrimination under either Act.
II. Jurisdiction
Regarding plaintiff's Title VII and ADEA claims, the court has original jurisdiction pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 629(c). As discussed below, this court lacks subject-matter jurisdiction to address plaintiff's ADA claim because the defendant, a United States agency, is excepted from the Act's reach, pursuant to 42 U.S.C. § 12111(5)(B)(i).
III. Issues Presented
1. Has plaintiff presented sufficient evidence creating a fact issue as to whether defendant proffered reason for not selecting her was a pretext for intentionally discriminating against her because of her race and/or age?
2. Has plaintiff established that this court has subject-mailer jurisdiction to address her disability discrimination claim under the ADA?III. Applicable Legal Standards
I will analyze defendant's challenges concerning plaintiff's purported inability to show that the reasons it proffered concerning the non-selection of plaintiff were based on discriminatory pretext under the summary judgment standard as set forth in FED. R Civ. P. 56, as I have relied on mailers outside the parties' pleadings in rendering my ruling. Because defendant calls into question the jurisdiction of this court with respect to plaintiff's ADA claim, I will analyze that issue by applying the dismissal standard set forth in FED. R. Civ. P. 12(b)(1).
A. Dismissal Standard
FED. R. Civ. P. 12(b)(1) authorizes the dismissal of a case for lack of subject-mailer jurisdiction when the district court lacks the statutory and constitutional power to adjudicate the case. A district court may dismiss a case for lack of subject-matterjurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Once the defendant challenges jurisdiction by filing a motion to dismiss under Rule 12(b)(1), the plaintiff has the burden of establishing the existence of subject-matter jurisdiction. A motion to dismiss for lack of subject-matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of her claim that would entitle her to relief.
See Home Builders Association of Mississippi. Inc., v. City of Madison, 143 1K3d 1006, 1010 (5th Cir. 1998).
See Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413(5th Cir.), cert. denied , 454 U.S. 897 (1981)).
See Paterson v. Weinberger, 644 F.2 521(5th Cir. 1981); and Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511(5th Cir. 1980).
See Home Builders Association of Mississippi. Inc. v. City of Madison. Miss ., 143 F.3d 1006 (5th Cir. 1998).
B. Summary Judgment Standard
The applicable standard in deciding a motion for summary judgment is set forth in FED. R. Civ. P. 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a mailer of law.
FED.R.CIV.P. 56(c); Celotex Corp., v. Catrett , 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 247 (1986).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp. , 39 F.3d 611, 616 (5th Cir. 1994).
Id. Wise v. E.I. DuPont De Nemours Co. , 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp. , 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp. , 477 U.S. at 325.
Id.
Anderson, 477 U.S. at 257.
The non-moving party cannot discharge this burden by referring to the mere allegations or denials of the non-moving party's pleadings. Rather, the non-movant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the non-movant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant's burden." Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial.
FED R.Civ.P. 56(e); Anderson, 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp. , 477 U.S. at 324; Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. Americna Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied , 513 U.S. 871 (1994)).
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be `no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id. at 323.
Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
See Fields, 922 F.2d at 1187.
IV. Analysis
A. Plaintiff has established that genuine issues of material facts exist precluding summary judgment on her race and age discrimination claims
Prior to discussing the legal issues involved in the case, a discussion of the undisputed material facts relevant to plaintiff's race and age discrimination claims is warranted.
i. Statement of Undisputed Facts
This Statement of Undisputed Facts is taken from the factual evidence presented by the defendant in support of its motion to dismiss, or alternatively, for summary judgment (Docket Entries 27 28), as well as from plaintiff's "Statement of Material Facts to Which There Exists a Genuine Issue to be Tried" (Docket Entries 30 31).
The uncontroverted summary judgment record reveals that plaintiff reported on March 18, 1997 to be interviewed for one of the six positions that were available in defendant's Postal Service facility in New Braunfels, Texas. Prior to reporting to the interview, plaintiff took a written examination offered by defendant to prospective applicants. The scores on the written examination determined the order by which the applicants were going to be considered at the interview phase of the hiring process. From the seven applicants who reported to the interview that day, only two were Black, plaintiff and a male by the name of Robert Taylor. According to their performance on the defendant's written examination, plaintiff, with a score of 92.5, and Mr. Taylor, with a score of 94.1, ranked among the top three candidates who reported to be interviewed for the available positions. At the end of the interview process, defendant's selecting official, Alice Briones, filled five positions, leaving one position unfilled. Significantly, out of the seven applicants who reported to the interview process, all were selected except for the two Black candidates. Defendant argues that its "rule of three" policy compelled this outcome.
Docket Entry 30, at Exhibit B, Defendant's Response to Interrogatory No. 8. The "rule of three" appears in the Postal Operations Handbook EI-311. Id.
Under that rule, according to the defendant, three applicants from the hiring worksheet are considered for each vacancy, and the selecting official chooses the one applicant that he or she feels best suits the needs of a particular position. This assessment is done after the selecting official has had an opportunity to conduct a one-on-one interview of the applicants. During these interviews, the selecting official will go over a standard set of questions with each applicant. The selecting official will then perform an independent evaluation of each of the applicant's responses under various categories, to include: work setting and job content, conscientiousness, adaptability, cooperation, communication, customer service, command of basic English and competence.
If there is more than one vacancy, the selecting official will then consider the two applicants that were not selected for the first vacancy, along with the next applicant listed (and interviewed) on the hiring worksheet. After an individual has been considered three times and has not been selected for the third vacancy, he or she will be dropped from consideration for further vacancies for each career position for which the register is used. It is undisputed that "the rule of three" is not a mandatory policy and its application is left to the discretion of the selecting official.
Docket Entry 27, Defendant's Statement of Undisputed Material Facts, at ¶ 27 (citing to EEOC Transcript, at 195-96).
In using the "rule of three" for the selection process made the basis of this dispute, the selecting official, Alice Briones, considered plaintiff and two other candidates for the first position. Briones selected John F. Godfrey for the position. According to the summary judgment record, Mr. Godfrey scored a 98 on the written examination, was 26 years of age at the time and his race was unknown. Continuing to use "the rule of three," Briones then considered plaintiff and two other candidates for the second position. The applicant selected was Lisa A. Hardy, who scored a 92 on the written examination, was 34 years old at the time and her race was unknown. In proceeding to use the "rule of three," Briones then considered plaintiff and two other candidates for the third vacancy. The applicant selected to fill that vacancy was Brenda Ray Tahtinen. Ms. Tahtinen scored a 91.8 on the written examination, was 39 years old at the time and her race was unknown. Because the application of the "rule of three" precluded further consideration of plaintiff, after having been considered and rejected three times, Briones dropped plaintiff from the pool of available candidates and she was not considered for any of the remaining three distribution clerk vacancies.
The other two candidates who were selected from the same hiring worksheet were: Everardo Duenas Jr. and Jaime A. Uballe. With respect to Duenas, the record reveals that he was a Caucasian male (of Hispanic origin), who scored 91.8 on the written examination and was 28 years old at the time. Uballe, also a Caucasian male (of Hispanic origin), scored a 91.3 on the written examination and was 43 years old at the time. The sixth vacancy was filled by utilizing an additional hiring worksheet. Defendant in that regard contends that selecting officials are not required to fill all vacancies from a particular worksheet if there is an insufficient number of qualified candidates on the original worksheet. Nevertheless, the evidence is undisputed that from those applicants were selected on March 18, 1997, none of them were Black, and only one candidate (Mr. Godfrey) scored higher than plaintiff on the written examination. Further, the ages of those selected ranged between 28 to 43 years of age, considerably younger than plaintiff who was 51 years old at the time.
Defendant justifies the non-selection of plaintiff by relying on Briones' assessment from the plaintiff's one-on-one interview. For instance, Briones believed that based on what plaintiff had disclosed during the interview concerning her then current job with the Internal Revenue Service, particularly that she was unable to meet her quotas as well as personal issues with her supervisor, plaintiff was going to pose productivity deficiencies if chosen for a distribution clerk position. Briones further believed that plaintiff's productivity issues were going to adversely affect the performance of the other distribution clerks in the office and the efficiency of the office as a whole. Also, Briones relied on the fact that plaintiff was not as forthcoming in discussing her prior employment with defendant. It was Briones' impression that while plaintiff was talkative and appeared a "very good communicator" during the interview, Briones thought that she was trying to divert her attention from exploring relevant issues concerning plaintiff's productivity deficiencies at her current employment and her prior work history with the defendant.
The summary judgment record reveals that plaintiff had worked for the Postal Service in Detroit from 1965 to 1973. Docket Entry 27, Defendant's Statement of Undisputed Material Facts, at ¶ 41.
It is plaintiff's position that defendant's proffered reasons for her non-selection were pretextual and were used to intentionally and unlawfully discriminate against her on the bases of her race and age. I find that in conjunction with her prima facie case, plaintiff has presented sufficient evidence of pretext to allow a jury decide the ultimate question in this case, namely, whether defendant intentionally discriminated against her because she was Black and over forty years of age.
ii. Analytical Framework Used in Employment Discrimination Cases
According to the analytical framework applicable to employment discrimination cases brought under Title VII and the ADEA. a plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Absent direct evidence of discriminatory intent, as is in this case, proof via circumstantial evidence is evaluated using the framework set forth in the seminal case of McConnell Douglass Corp., v. Green . "First, the plaintiff must establish a prima facie case of discrimination." Second, the employer must respond with a legitimate, nondiscriminatory reason for its decision. The burden on the employer is only one of production, not persuasion, involving no credibility assessments. Third, if the employer carries its burden, the "mandatory inference of discrimination" created by the plaintiff's prima facie case, "drops out of the picture" and the fact finder must "decide the ultimate question: whether [the] plaintiff has proven [intentional discrimination]."
411 U.S. 792 (1973).
Reeves v. Sanderson Plumbing Prods., Inc. , 120 S.Ct. 2097, 2106 (2000).
See McDonnell Douglas , 411 U.S. at 802.
See Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 255-56 (1981).
Id. at 256 n. 10.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 51-12 (1993).
In making this showing, the plaintiff can rely on evidence that the employer's reasons were a pretext for unlawful discrimination. "[T]he trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" However, as the United States Supreme Court stated in Hicks , a showing of pretext does not automatically entitle an employee to a judgment as a matter of law. It is "not enough . . . todisbelieve the employer; the [fact finder] must believe the plaintiff's explanation of intentional discrimination." This statement in Hicks apparently caused confusion among circuit courts as to whether intentional discrimination could be inferred from a showing of pretext.
See McDonnell Douglas, 411 U.S. at 804.
Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 255 n. 10).
Hicks, 509 U.S. at 524.
Id. at 519 (Emphasis in original).
Reeves, 120 S.Ct. at 2104-05 (describing the circuit conflict resulting from the confusion).
The United States Supreme Court in its Reeves decision resolved the split among the circuit courts by rejecting the "pretext-plus" approach, thus overruling the Fifth Circuit's decision in that case. A unammous Court held that the Fifth Circuit had "misconceived the evidentiary burden borne by plaintiff's who attempt to prove intentional discrimination through indirect evidence." "Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Before the court can engage in the analysis of pretext evidence, a plaintiff must first meet his prima facie case of intentional discrimination.
Reeves v. Sanderson Plumbing Products. Inc ., 197 F.3d 688 (5th Cir. 1999); and Reeves, 120 S.Ct. at 2108.
Reeves, 120 S.Ct. at 2108.
Id. at 2109 (Emphasis added).
The Court in Reeves further stated that, more likely than not, a showing of pretext will lead to an inference of discrimination: "Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision."
Id. at 2108-09.
The Reeves Court also cautioned that there may be instances, although rare, where a showing of pretext would not be sufficient to infer discrimination. Such a situation would occur "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred."
Id . at 2109 (emphasis added). The Reeves ruling rejected part of the Fifth Circuit's decision in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (1996). In so doing, the Court noted that Rhodes stood for the proposition that the "plaintiff must introduce sufficient evidence for [the] jury to find both that [the] employer's reason was false and that [the] real reason was discrimination." Reeves, 120 S.Ct. at 2105(emphasis added) (statement in parenthetical). This pretext-plus requirement is contrary to the Reeves Court's holding that the employer's prevarication may be sufficient in many cases to demonstrate discriminatory animus. Id. at 2108-09. While portions of the Rhodes decision do not appear to fully comport with Reeves, the Fifth Circuit has already recognized central features of the Rhodes decision that survive Reeves . See Vadie v. Miss. State Univ. , 218 F.3d 365, 373 n. 23 (5th Cir. 2000) (" Rhodes is consistent with Reeves and continues to be the governing standard in this (Fifth] Circuit."). Nevertheless, in evaluating plaintiff's discrimination claim under the McDonnell Douglas framework, this court is cognizant that it must not unduly restrict a plaintiff's circumstantial case of discrimination.
In applying this analytical framework to the case at hand, there is no dispute that plaintiff has not only met her prima facie burden under both Title VII and the ADEA, but has also created a reasonable inference that defendant's asserted justification may have been motivated by her race and/or age.
iii. Application of the Analytical Framework
A prima facie case of race discrimination in a Title VII non selection or failure to hire case is established when the plaintiff has shown that she: (1) is a member of a protected class; (2) she sought and was qualified for the position; (3) she was rejected for the position; and (4) someone else outside her protected class was hired. Similarly, to establish a prima facie case of age discrimination under the ADEA, plaintiff has to establish: (1) that she belongs to a protected class (aged 40 or over); (2) that she applied for and was qualified for a position for which the employer was seeking applicants; (3) she was rejected; and (4) other applicants who were considerably younger were hired.
See Haynes v. Pennzoil Co ., 207 F.3d 290, 300 (5th Cir. 2000) (citing Grimes v. Texas Dept of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996)).
Brown v. CSC Logic. Inc. , 82 F.3d 651, 654 (5th Cir. 1996) (citations omitted); and Haas v. Advo Systems, Inc., 168 F.3d 732 (5th Cir. 1999) (stating that the Fifth Circuit generally analyzes ADEA claims under the McDonnell Douglas burden-shifting approach).
Defendant does not dispute that plaintiff has met her prima facie burden under both Title VII and the ADEA. In that regard, the defendant stipulates that plaintiff "has established a prima facie case of race discrimination because she is African-American, met the basis qualifications for the job, and non-Blacks were chosen." Likewise, defendant has stipulated that plaintiff has established a prima facie case of age discrimination, "as the five candidates who were selected from the hiring worksheet were aged 26, 34, 39, 28 and 43." Accordingly, the issue becomes whether plaintiff has presented enough evidence raising a fact issue on the ultimate question in this case, that is, whether the defendant's reasons for her non selection were a pretext for intentionally discriminating against her on the bases of her race and age. I find that she has.
Docket Entry 27, at 7.
Id. at 8.
For example, according to the uncontroverted summary judgment record, Briones selected all the applicants who reported to be interviewed on March 18, 1997, except for the only two Black applicants who showed up that day, plaintiff and Mr. Taylor. Finding them unsuitable for the distribution clerk position, Briones opted to leave one vacancy open rather than select one of these two individuals. Both plaintiff and Mr. Taylor came to the interview process after having achieved high scores on defendant's written examination. Further, it is undisputed that Briones was aware that plaintiff had worked for the defendant in the past. Besides Briones' own personal assessment of plaintiff's qualifications, defendant has failed to articulate any evidence demonstrating that plaintiff was less qualified for the distribution clerk position that those individuals who were selected to fill the available vacancies. Because the only two candidates who were left without a position were Black, plaintiff has raised a fact issue as to whether the "rule of three" was discriminatorily applied to eliminate them from the available pool of applicants.
Further, there are material facts in dispute as to what was discussed between plaintiff and Briones during the one-on-one interview that would have lead Briones to believe that she was an unsuitable candidate. For instance, defendant maintains that plaintiff voluntarily disclosed to Briones that she was going to be fired from her then current employment because she was unable to meet her quotas. Plaintiff, on the other hand, while not denying that she discussed her current employment with Briones, denies ever saying to Briones that she was going to be fired. Viewing all the facts and inferences in the light most favorable to the plaintiff as the non-movant in this proceeding, I find that genuine issues of material fact exist precluding a finding of summary judgment on plaintiff's claim of race discrimination.
Docket Entry 29, at ¶ 20.
While plaintiff's ADEA claim is not as strong as her Title VII claim, I nevertheless find her evidence sufficient to allow her to proceed to trial on the issue. My decision is premised on the fact that all the individuals who were selected to fill the vacancies were considerably younger than she was, ranging in ages 26 to 43. Plaintiff was 51 years old at the time. Viewing the record in the light most favorable to plaintiff as the non-movant, I find that, in conjunction with her prima facie case, plaintiff has presented sufficient evidence creating a material fact in dispute as to whether her age played a role in defendant's decision to not hire her. Based on the foregoing, defendant's request for summary judgment with respect to plaintiff's race and age discrimination claims is DENIED .
B. This court lacks subject-matter jurisdiction to address the merits of plaintiff's disability discrimination claim under the ADA
Plaintiff argues that since defendant viewed her back condition "disfavorably" when it decided not to select her for employment, she should be entitled to bring her disability discrimination claim under the ADA to the jury. Besides plaintiff's own deposition testimony, plaintiff fails to cite any factual evidence which would support her assertion that defendant unlawfully considered her back condition when it denied her employment. Nevertheless, and irrespective of the substantive merit of plaintiff's complaint asserting disability discrimination, plaintiff's claim fails for the principal reason that she cannot maintain a cause of action against the defendant under the ADA as a matter of law. As such, this court lacks subject-matter jurisdiction to address the claim.
Docket Entry 29, at ¶ 19.
See Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) ("The court must always consider a Rule 12(b0(1) jurisdictional attack before addressing any attacks on the merits.").
The ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." The term "covered entity" under the Act means "an employer, employment agency, labor organization, or joint-labor management committee." Significantly, the Act expressly excepts from its reach "the United States or any corporation wholly owned by the government of the United States," such as the federal entity that has been sued in this case, the United States Postal Service. Based on the plain language of the Act, plaintiff is precluded from establishing that this court has subject-matter jurisdiction over her claim.
§ 12111(2).
§ 12111(5)(B)(i). See also Rogers v. U.S. Postal Service, No. CIV. A5:98-CV-130-C, 1999 WL 58852 at *4-5 (N.D. Tex. Feb. 3, 1999) (granting defendant's motion to dismiss because the structure and language of the ADA precludes plaintiff's claims against the Postal Service as a matter of law).
Indeed, the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791et seq., provides the exclusive remedy and sole basis for jurisdiction for claims of disability discrimination in federal employment. Accordingly, plaintiff may only pursue her claim of disability discrimination under the Rehabilitation Act. Thus, because plaintiff has failed to plead the correct statute in her complaint that would have conferred jurisdiction in this court, I hereby grant defendant's motion to dismiss the claim.
See Rivera v. Heyman, 157 F.3d 101, 104 (2nd Cir. 1998) (Section 501 of the Rehabilitation Act provides the exclusive judicial remedy for claims of disability discrimination arising out of federal employment. precluding suit under any other federal or state law); Spence v. Straw, 54 F.3d 196, 201-03 (3rd Cir. 1995) (suit under the Rehabilitation Act is the exclusive means by which a plaintiff may raise a claim of disability discrimination against a federal agency); and Fallett v. United States Postal Service, 644 F. Supp. 625, 629 (N.D. Tex. 1986) ("plaintitf's statutory rights, as against the federal government or one fits officials [for alleged disability discrimination], are exclusively embodied in the Rehabilitation Act . . . ."
It should be noted that even though plaintiff initiated the instant lawsuit in a pro se capacity, the defendant, by means of an affirmative defense set forth in its answer, put plaintiff on notice that her ADA claim was improper. Plaintiff, however, failed to amend her original complaint. Curiously, plaintiff's summary judgment response, filed after she secured counsel, fails to address defendant's jurisdictional challenge. Further, at this juncture in the case, and assuming that she has exhausted her administrative remedies, I would deem any new claim brought under the Rehabilitation Act as time-barred.
Docket Entry 15, at 3-4.
Docket Entry 29, at ¶ 19.
Even assuming, arguendo, that plaintiff has properly established the jurisdiction of this court with respect to her claim of disability discrimination, her claim nevertheless fails because she cannot show that she is a disabled individual under either Act. For instance, the threshold element of a prima facie showing of discrimination under the ADA (as it also is under the Rehabilitation Act) is a showing that the plaintiff either is, or is regarded as being disabled. "Failure to establish an actual or perceived disability is thus fatal to a plaintiff's case." A "disability" under the ADA is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; a record of such an impairment; or being regarded as having such an impairment." A "major life activity," as defined by the EEOC regulations includes such functions as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." One is "substantially limited" in a major life activity if she is:
McInnis, 207 F.3d at 280.
42 U.S.C. § 12102. The ADA does not define the terms "physical" or "mental impairment," but the EEOC Regulations provide the following definitions:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.29 C.F.R. § 1630.2.
(i) [u]nable to perform a major life activity that the average person in the general population can perform; or
(ii) [s]ignificantly 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.
Id.
The summary judgment record does not support plaintiff's position that she meets this definition. For instance, plaintiff has stated in the context of this litigation that although her lower back condition bothers her, she has no trouble walking, sitting, working, driving, or shopping. Specifically, she has testified that her lower back condition does not affect any daily life activities and does not prohibit her from lifting, walking, or doing daily activities. In fact, the record shows that at the present time her back condition has not prevented her from working as a distribution clerk at one of the defendant's facilities in San Antonio, a position she has held since March of 1998.
Docket Entry 27, at 10 and Fact No. 39.
For the foregoing reasons, defendant's motion to dismiss for lack of subject-matter jurisdiction is GRANTED as plaintiff cannot prove any set of facts in support of her disability discrimination claim that would entitle her to relief
V. Conclusion
Having reviewed the summary judgment record in this case and for the reasons set forth in this Order, I hereby DENY defendant's motion for summary judgment (Docket Entry 27) on plaintiff's race and age discrimination claims brought under Title VII and the ADEA, respectively, and GRANT defendant's motion to dismiss plaintiff's disability discrimination claim under the ADA(Docket Entry 27). Plaintiff's Title VII and ADEA claims will proceed to be tried before a jury on June 17, 2902.