Opinion
No. SA-02-CA-1003-RF
December 5, 2003
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Motion for Summary Judgment of Defendant City of San Antonio (Docket No. 13), Plaintiff's Response, and Defendant's Reply. Having carefully reviewed all submissions before the Court, and the applicable law, the Court DENIES the motion.
Background
In his complaint, Plaintiff alleges a claim under the Americans with Disability Act ("ADA") stemming from a denial of employment in 2000. Plaintiff has cerebral palsy which impairs Plaintiff's ability to walk. As a result, Plaintiff is dependent on public paratransit service for transportation to and from work. Paratransit is a service required by the ADA through which an eligible disabled person can schedule door-to-door bus service. Beginning in 1996, Plaintiff began working as a parking attendant for the Defendant at the San Antonio International Airport. Plaintiff was terminated in 1997. Plaintiff filed a lawsuit against Defendant in this Court alleging violations of the ADA. Defendant reinstated Plaintiff in a position in the Temporary Services Pool and the case settled in February 2000. Plaintiff applied for new parking attendant positions when they opened up on or about November 17, 2000.
Plaintiff claims Defendant told him, at the same time that the prior ADA case settled, around February 4, 2000, that his position as parking attendant had been eliminated.
Plaintiff claims he applied for a parking attendant position several times through the fall and spring of 2000.
Defendant's airport parking attendants worked one of three shifts. "First shift" started in the morning; "second shift" started in the afternoon; and "third shift" was the overnight or "graveyard" shift. Parking attendants bid on shift assignments according to seniority. Parking attendants with the most seniority usually picked the first shift; while attendants with the least seniority usually ended up with the graveyard shift because it was the least favored. When Plaintiff was first employed by Defendant, Defendant did not require Plaintiff to go through the bidding process for shifts. Instead, Plaintiff was assigned the first shift as he had requested, even though Plaintiff did not have the seniority to be placed in the first shift.
Plaintiff requested the first shift because the paratransit bus schedule was available from 6 am to ll pm.
When Plaintiff applied for the parking attendant position in 2000, he was given a form to fill out which asked applicants if they had a disability and needed accommodation. Plaintiff replied that he was disabled due to cerebral palsy, had difficulty walking, could not drive, took paratransit, and thus requested the first shift. Plaintiff's accommodation request was given to the Parking Manager and hiring official, Greg Laurence.
Plaintiff was denied employment. Defendant has admitted that it denied Plaintiff employment because the accommodation requested conflicted with Defendant's seniority rules. Plaintiff claims that Laurence offered another reason. When Plaintiff called Laurence to find out the status of his application, Laurence told him they did not want any troublemakers. Plaintiff asked Laurence if he was assuming Plaintiff was a troublemaker because of his past experience with Defendant. Laurence responded by repeating that they did not want any troublemakers and told Plaintiff he would not get the job.
If Plaintiff had been hired in July, his seniority number would have been 24. The shifts the Defendant claims meet Plaintiff's requirements were being held by the number 14, 2, 5 and 19 employees.
Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in his favor." The moving party bears the burden of establishing that there are no genuine issues of material fact.
See FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. The Court, in turn, "must draw all reasonable inferences in favor of the nonmoving party, and . . . may not make credibility determinations or weigh the evidence."
See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178.
See Celotex, 477 U.S. at 324.
See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 150 (2000) (citations omitted).
B. Grounds for Summary Judgment
To present a prima facie case of discrimination, a Plaintiff must show that he is "a qualified individual with a disability, and that the negative employment action occurred because of the disability." "A `qualified individual with a disability' is defined in the ADA as someone who has a disability, but who `with or without reasonable accommodation' can perform the essential functions of the employment position that such individual holds or desires.'"
Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998).
Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir. 2001)
Defendant claims Plaintiff is not qualified because the accommodation he seeks is not reasonable because it would violate Defendant's seniority system. Defendant relies on the Supreme Court's decision in U.S. Airways v. Barnett, in which the Court held that under the ADA, for a defendant to "show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not `reasonable.'"
535 U.S. 391 (2002).
Id. at 394.
Plaintiff responds that Burnett is not applicable to this case because Barnett only applies when an accommodation directly conflicts with a seniority system. Plaintiff claims that there was no such conflict in this case because Plaintiff could have worked either the first shift or the third, graveyard, shift. Plaintiff required a shift that would allow him to take paratransit, which operates from 6 am to 11 pm, to and from work. Plaintiff could have worked the graveyard shift and scheduled paratransit to pick him up at home at night, take him to work, and pick him up at work in the morning and take him home. Because the graveyard shift is the least favored, it was available to people with the least seniority. Moreover, Plaintiff argues that Defendant's work schedule shows that new attendants hired at the same time as Plaintiff's application was submitted received the graveyard assignment.
See supra at 5. ("to show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not `reasonable.'") (emphasis added); Dilley v. SuperValu, Inc., 296 F.3d 958, 963-64 (10th Cir. 2002) (recognizing Barnett but holding that only direct violations of a seniority system are presumed impermissible); Lujan v. Pacific Maritime Ass'n, 165 F.3d 738, 743 (9th Cir. 1999) (stating that if there is no violation of any seniority rights, it is not clear that the accommodation would be unreasonable and that the reasonableness of an accommodation is ordinarily a question of fact); Sprague v. United Airlines, Inc., 2002 WL 1803733, at * 14 (D.Mass. 2002) (finding no barrier under Barnett because the plaintiff likely could have remained on the generally disfavored third shift without violating the seniority system).
Defendant raises for the first time in their reply that, at the time Plaintiff applied, all the graveyard shift assignments were filled by people with higher seniority than Plaintiff. This conflicts with Plaintiff's assertion that, at the time he applied, the graveyard shifts were filled by people who had no more seniority than Plaintiff. Thus, a factual dispute exists, that is, whether Plaintiff's requested accommodation actually conflicted with the Defendant's seniority system such that Plaintiff's claim would be barred under Barnett.
Accordingly, this Court holds that a genuine issue of material fact exists as to whether a reasonable accommodation was available to Plaintiff. Thus, Defendant has not shown that Plaintiff cannot make a prima facie case of disability under the ADA and that claim is DENIED. Because all of Defendant's other grounds for summary judgment were based on the claim that Plaintiff could not make a prima facie case of disability under the ADA, Defendant's other grounds for summary judgment must be DENIED.
For the reasons stated above, it is hereby ORDERED that Defendant's Motion for Summary Judgment be DENIED.
It is so ORDERED.