Opinion
CAUSE NO. A-97-CA-176 AWA.
April 4, 2001.
ORDER
Before the Court is Defendant's Motion for Summary Judgment and Plaintiff's Response. (Clerk's Doc. Nos. 26 and 35). On October 18, 1999, the Court heard arguments with respect to the pending motion for summary judgment, as well as the objections filed by both parties to the summary judgment evidence.
For the reasons stated below, the Court hereby GRANTS Defendant's Motion. The Defendant is entitled to summary judgment on Plaintiff's claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. §§ 12101- 12213 (West 1998), because Plaintiff is not a "qualified individual" as defined by the ADA. Moreover, Defendant is entitled to summary judgment on Plaintiff's claim under the Family and Medical Leave Act ("FMLA"), 29 U.S.C.A. §§ 2601- 2654 (West 1998), because Defendant has not interfered with Plaintiff's entitlement to leave under the FMLA, nor has it retaliated against the Plaintiff for her use of FMLA leave.
General Background
The Plaintiff is a nurse who was formerly employed by the City of Austin's Health Department. The City of Austin hired the Plaintiff, who is an African American female, in August of 1993, for the position of Public Health Nurse III with the City's Department of Health. The Plaintiff sought FMLA leave in 1994, and although she was not yet eligible for FMLA leave, the City granted her a three week leave of absence. There is evidence in the record that the City made clear that the leave would be unpaid, and was pursuant to its personnel policies rather than FMLA leave. The Plaintiff returned to regular duty in August of 1994. In September of 1994, having become eligible for FMLA leave, the Plaintiff requested leave from September 21 to October 15, 1994. This request was approved by the Defendant. On October 12, 1994, the Plaintiff asked for an extension of her FMLA leave and the Defendant granted her request for the remainder of her twelve week FMLA eligibility. [what is point of footnote?]
The Court will not set forth the entire litany of the Plaintiff's request for leave from work. Rather, the Court notes for the record that the Plaintiff availed herself of FMLA leave throughout her tenure with the City and obviously the City, for purposes of this motion, was aware of this.
In February of 1996, the Plaintiff returned to her position on a half-time basis. The Plaintiff was designated by the City as an "RTW" or "return to work" employee. All RTW employees are subject to a three month probationary period under the personnel policies of the City of Austin. The Plaintiff does not dispute that she accepted her status as a probationary employee when she returned to employment with the City. The summary judgment evidence establishes that Plaintiff had problems with absenteeism virtually from the first day she returned to work. The Plaintiff was cited for two violations her first week. She received a memorandum from her supervisor explaining the terms and conditions of her employment.
In all, the Plaintiff missed over 400 days of work during her service with the City.
In April of 1996, the Defendant informed the Plaintiff in a general fashion of the necessity for improvement by her with respect to her chronic absenteeism. In May of 1996 the Plaintiff's supervisor met with her to discuss her performance. In June of 1996, the Plaintiff's supervisor reprimanded the Plaintiff in writing. These reprimands cited the Plaintiff's failure to submit leave requests for absences and for leaving the worksite without authorization. The City provided the Plaintiff with a pre-termination meeting to allow her to oppose the termination. The City subsequently terminated the Plaintiff.
The Plaintiff originally alleged that she was discriminated against on the basis of her race (African American). She also filed a claim alleging discrimination in violation of the Americans with Disabilities Act ("ADA"), and she claims that she was retaliated against in violation of exercising her rights under the Family and Medical Leave Act ("FMLA").
The Parties' Objections and Motion to Strike Summary Judgment Evidence
Both Parties filed motions to strike substantial portions of the opposite party's summary judgment evidence. The Defendant's motion is based primarily on the grounds that the challenged evidence is not based upon personal knowledge, is speculative, conclusory, or unauthenticated, and contradicts the Plaintiff's prior deposition testimony. Because the Court has found it unnecessary to rely upon the great majority of the challenged testimony, it need not consider each of Defendant's objections. Instead, insofar as it may be necessary, this Order will address specific objections to those portions of the disputed evidence that the Court regards as relevant to the resolution of particular summary judgment issues. The remaining portions of Defendant's objections are DENIED as moot.
With respect to the Plaintiff's objections, the Court OVERRULES the Plaintiff's objections.
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "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 of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56. The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir. 1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir. 1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir. 1997), cert. denied, 118 S.Ct. 1514 (1998). The moving party, however, need not negate the elements of the nonmovant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23; Anderson, 477 U.S. at 257; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993)); see Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied, 119 S.Ct. 794 (1999); Hart v. O'Brien, 127 F.3d 424, 435 (5th Cir. 1997), cert. denied, 119 S.Ct. 868 (1999); Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir. 1997). "`The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Reves v. Emst Young, 507 U.S. 170, 190 n. 3 (1993) (quoting Anderson, 477 U.S. at 255); Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5 (1990); see Marshall, 134 F.3d at 321. Nonetheless, "only reasonable inferences can be drawn from the evidence in favor of the nonmoving party." Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 469 n. 14 (1992) (emphasis in original). "If the [nonmoving party's] theory is . . . senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Id. at 468-69.
The nonmovant's burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or "only a scintilla of evidence." Little, 37 F.3d at 1075; see Hart, 127 F.3d at 435; Wallace, 80 F.3d at 1047; 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)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990) (citing Anderson, 477 U.S. at 247-48). Summary judgment is mandated if the nonmovant 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. See Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322; Wenner, 123 F.3d at 324. "In such a situation, there can be `no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23.
The Defendant has raised three separate grounds on which it seeks summary judgment:
(1) the expiration of the statute of limitations;
(2) the Plaintiff's failure to exhaust administrative remedies; and (3) the lack of any evidence indicating a discriminatory motive on the part of the Defendant.
B. Procedural Claims
1. The Statute of Limitations.
The Defendant argues that any claims that arose prior to date of July 11, 1996, are timed barred. The Plaintiff, however, is only making claims from that date forward. Therefore, the Court DENIES the motion on this issue.
2. Failure to Exhaust Administrative Remedies.
The Defendant argues that the Plaintiff failed to exhaust her administrative remedies. The Defendant argues that the Plaintiff has admitted this in her discovery responses. A Plaintiff must bring claims under Title VII and the ADA within 180 days of an administrative filing or the claims are barred. 42 U.S.C. § 200e-5(e)(1); 42 U.S.C. § 12117(a). The Defendant contends that the Plaintiff failed to exhaust her administrative remedies because she did not provide full disclosure of her claims and the evidence supporting those claims to the EEOC. To satisfy the exhaustion requirement, an employee must cooperate in good faith with the investigating agency, Francis v. Brown, 58 F.3d 191, 192 (5th Cir. 1995). Based upon the Plaintiff's statement contained in a response to a requests for admission that "Full complete disclosure of the factual basis for my complaints to TCHR and EEOC were not given, by me nor any Representative of mine," the Defendant contends that the Plaintiff failed to fulfill the cooperation element of the exhaustion requirement. Although the Court is inclined to agree with the Defendant that the Plaintiff's admission would support a finding of failure to cooperate with the agency, it is unnecessary to reach this issue given the Court's resolution of the merits of the Plaintiff's claims.
C. Substantive Claims.
1. Race Claims.
The Plaintiff expressly waived her claims of racial discrimination, and the Court therefore GRANTS the Defendant's Motion for summary judgment with respect to all claims based on the Plaintiff's race.
2. ADA Claim. [NOTE: much following is boilerplate not necessary to ruling]
The Defendant's summary judgment motion on Plaintiff's ADA claim is based on the assertion that Plaintiff cannot establish a prima facie case of discrimination because: (1) there is no evidence that Plaintiff was otherwise qualified to perform the essential functions of her job; (2) there is no evidence that a reasonable accommodation by the City would have enabled Plaintiff to perform the essential functions of her job, and (3) there is no evidence that Plaintiff's alleged disability influenced the City's decision to terminate her employment. The City maintains that Plaintiff cannot prove that it failed reasonably to accommodate her disability because Plaintiff failed to inform it of any limitation resulting from the disability. The Defendant asserts that it has articulated a legitimate, nondiscriminatory reason for discharging the Plaintiff, and that she has failed to produce any evidence that the City's proffered reason was pretextual.
The ADA prohibits discrimination in employment against disabled persons, on the basis of the disability, when the disabled person can perform the essential functions of their job with reasonable accommodation, if necessary. 42 U.S.C. § 12101, et seq.; Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997) (discussing ADA). Under the ADA, the employee bears the burden of proving that the challenged actions were motivated by the improper considerations, i.e., by the Plaintiff's alleged disability. See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (in ADA cases plaintiff carries the burden of persuasion on employer's intent). Therefore, if the Plaintiff fails to prove that her termination was motivated by her disability, the City cannot be liable under the ADA.
Plaintiff claims that the City engaged in unlawful employment practices in violation of the ADA. Specifically, Plaintiff alleges that Defendant refused to make a reasonable accommodation for the Plaintiff's disability, and terminated the Plaintiff from her position, despite the fact that Plaintiff was able to perform her duties without the need for accommodation. The Defendant denies these allegations and argues that it is entitled to summary judgment because there was no ADA violation.
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability. . . ." 42 U.S.C. § 12112(a). The term "discriminate" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." Id. at § 12112(b)(5)(A). The ADA defines "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. at § 12111(8). The ADA defines "disability" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).
Congress did not specify which job functions are "essential" under the ADA. As defined by applicable regulations, however, "[t]he term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. [It] does not include the marginal functions of the position." 29 C.F.R. § 1630.2(n)(1). Whenever an employer gives written descriptions of the essential functions of a job, those descriptions are entitled to substantial deference. 42 U.S.C. § 12111(8).
The EEOC's regulations also set forth the factors to be considered in determining whether an impairment is substantially limiting: (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its actual or expected permanent or long-term impact. 42 U.S.C. § 12111 (8) (1997); 29 C.F.R. § 1630.2(m) (1998). If an employee proves that his employer has failed to make reasonable accommodations to the employee's "known physical or mental limitations," the employer will be deemed to have "discriminated," unless it can show that the accommodation would impose "undue hardship on the operation" of its business. 42 U.S.C. § 12112(b)(5)(A) (1997).
Defendant asserts that Plaintiff's ADA claim fails as a matter of law because the evidence fails to show that she possesses a physical impairment that substantially limits one or more of her major life activities. A substantial limitation upon a major life activity exists if the limitation leaves the individual "(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 the same major life activity." Rogers, 87 F.3d at 758 (citing 29 C.F.R. § 1630.2(j)(1)). Among the factors a court should consider in determining whether an individual is substantially limited in a major life activity are: "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). [compare to earlier cite]
The term "major life activities" refers to such functions as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I).
To be "otherwise qualified" to perform the job and able to state a claim under the ADA, the Plaintiff must be able to perform the essential functions of the job with or without reasonable accommodation. 42 U.S.C. § 12111(8). Reasonable accommodations, in turn, may include such measures as job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Id. 42 U.S.C. § 12111(9). The "undue hardship" analysis requires courts to consider factors including "the nature and cost of the accommodation;" the size of the facility and the business entity involved in terms of financial resources, personnel, and geography; and the type of operations including composition, structure, and function. 42 U.S.C. § 12111(10)(B).
The ADA requires employers to make certain accommodations for disabled employees. This distinguishes it from most other anti-discrimination legislation. By requiring reasonable accommodation, the ADA shifts away from requiring similar treatment for all persons, to requiring different treatment of the disabled by accommodating their disabilities. The terms "reasonable accommodation" and "undue hardship" often go hand-in-hand. Although the terms are separately defined, see 42 U.S.C. § 12111(9)-(10), the ADA imposes liability on employers that fail to make reasonable accommodations to qualified individuals, unless the employer demonstrates that the accommodation imposes undue hardship. 42 U.S.C. § 12112(b)(5)(A). Furthermore, employers with a "business necessity" have a defense when they impose "qualification standards, tests, or selection criteria that . . . tend to screen out" individuals with disabilities. 42 U.S.C. § 12113(a). [what is relevance of this to this case?]
The Fifth Circuit has indicated that a plaintiff bringing a claim of disability discrimination under the ADA may prove her case through either direct evidence or by employing the indirect method of proof established for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995), the Court explained that:
Under the McDonnell Douglas analysis, a plaintiff must first make out a prima facie case of discrimination by showing that: (1) he or she suffers from a disability; (2) he or she is qualified for the job; (3) he or she was subject to an adverse employment action; and (4) he or she was replaced by a non-disabled person or was treated less favorably than non-disabled employees.
See also, Turco, 101 F.3d 1090, 1092 (5th Cir. 1996); Rizzo v. Children's World Learning Center, Inc., 84 F.3d 758, 763 (5th Cir. 1996). If the plaintiff does so successfully, she has raised a rebuttable presumption of discrimination and shifted the burden to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Once the employer satisfies this burden of production, the plaintiff must then present evidence that the reason proffered by the defendant is actually a pretext for discrimination. Id. at 507. A jury may in an appropriate case infer the requisite discriminatory intent circumstantially from a showing that the Defendant's stated reasons for taking the employment action were false and pretextual. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996). The ultimate burden to prove discrimination at trial, of course, remains at all times with the plaintiff. St. Mary's Honor Ctr., 509 U.S. at 508; Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995).
The Plaintiff contends that summary judgment is inappropriate because there is summary judgment evidence that the reasons that the Defendant has proffered for her termination are pretextual. For example, the Plaintiff notes that another employee failed to receive certain training and was not terminated. Despite the fact that the other employee did not have the level of absenteeism, the Defendant argues that the Plaintiff must do more than negate the Defendant's proffered reasons and must present evidence to establish that the Defendant discriminated against her. The Plaintiff contends that it is sufficient to present evidence, at the summary judgment stage, from which the jury might find that the Plaintiff was discriminated against.
The Court finds that the there is no summary judgment evidence demonstrating that the Defendant's proffered reasons for the termination of Plaintiff were pretextual. The undisputed evidence demonstrates unquestionably that the Plaintiff was chronically absent from work. The Plaintiff has offered no summary judgment evidence that she ever provided any medical documentation to explain the substantial number of absences. The Court finds that the Plaintiff was not "otherwise qualified" for her job as a matter of law because it was an essential function of her job, as a nurse who was hired to give shots, to be in attendance. The Plaintiff's absences also contributed to her failure to attend the requisite training. The Plaintiff was not present at work often enough to perform the essential functions of the job. The Court notes that the Plaintiff does not argue that she could perform the job duties from home; indeed, all of the evidence is to the contrary.
The Plaintiff did offer statements referring to the myriad medical problems that she believes that she has suffered over the years. Defendant objects to this portion of Plaintiff's affidavit on the basis that she is not qualified as an expert to give medical opinions. The Court overrules Defendant's objection. The portion of Plaintiff's affidavit upon which the Court relies is based on her personal knowledge of how her diabetes and asthma affect her life. Thus, her statements are not improper expert testimony but, rather, they are based on first hand knowledge.
Even if the Plaintiff was correct in asserting that the Defendant should have — but did not — allow her to attend the training with respect to the screening of records and the assessment of clients, there is no genuine issue of material fact as to whether she is capable of performing the essential functions of her job as a nurse. The record is undisputed that the Plaintiff was not qualified under City standards to provide immunization: one of the primary duties of her job. As it is undisputed that being qualified to give immunizations is an essential function of every nurse who is hired to give immunizations. Therefore she poses a direct threat to the health and safety of others as a matter of law. Her failure to be trained was caused by her chronic absenteeism. As a result, the Plaintiff is not qualified for the position in the absence of an accommodation that will eliminate the inherent safety risk that her failure to be trained (as well as her general absenteeism) has caused. The Plaintiff cannot and has not provided any summary judgment evidence as to how any accommodation would make her a safe nurse under the terms of the ADA. [Need to rewrite this paragraph.]
The law in the Fifth Circuit is that the better approach in an ADA case is to view the cumulative effect of Plaintiff's conditions on her major life activities. Plaintiff's affidavit demonstrates that she had substantial physical health problems as a result of her ailments. In view of the overall effect of Plaintiff's health problems, the Court finds that there exists a genuine fact issue as to whether Plaintiff's condition substantially limited her major life activities, and hence whether Plaintiff had a disability as that term is defined by the ADA. See Coghlan v. ?????????, 851 F. Supp. 808, ___ (N.D.Tex. 1994) (denying summary judgment because plaintiff had presented evidence that his impairment substantially limited his ability to eat and sleep).
The Court stresses that it is not concluding as a matter of law that the Plaintiff has a disability under the ADA. Fifth Circuit precedent provides that the Court should decide such matters on a case-by-case analysis. As discussed below, there are other reasons why Plaintiff's claim fails as a matter of law. See, Taylor, 93 F.3d 155. The Court cannot engage in weighing the evidence at the summary judgment stage, and therefore the Court cannot grant Defendant's motion on the basis that Plaintiff does not have a disability as defined by the ADA.
Although the Court finds that there is a fact issue as to whether Plaintiff is disabled for purposes of her ADA claim, this finding alone is not enough for Plaintiff to survive the Defendant's motion for summary judgment. Under the ADA framework, Plaintiff must show that she is a qualified individual with a disability. The Defendant is entitled to summary judgment on Plaintiff's ADA claim because Plaintiff, who the Court will assume for purposes of the summary judgment motion has a disability as defined by the ADA, is not a "qualified individual" because she, with or without reasonable accommodation, cannot perform the essential functions of the nurse position. The nurse's position that Plaintiff held indicates that regular attendance is indeed an essential function, and was necessary for the performance of other essential functions. Throughout Plaintiff's tenure with the City she would continue to have periodic and unpredictable absences from work due to her alleged illness. Plaintiff makes no suggestion as to what kind of accommodation would permit her to perform the essential function of maintaining regular attendance. Thus, Plaintiff is not a qualified individual under the ADA because she cannot meet the attendance requirements of a Trainer due to her illness. Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209, 214 (4th Cir. 1994) ("An employee who cannot meet the attendance requirements of the job at issue cannot be considered a `qualified' individual protected by the ADA."). This conclusion moots Plaintiff's reasonable accommodation argument and entitles Defendant to summary judgment on Plaintiff's ADA claim.
The Plaintiff admits that she was not capable of working. In her affidavit she states: "When I become [sic] ill in May and June of 1996, I would often be unable to move because my joints were so swollen. I was in a tremendous amount of pain for several hours a day. I would not have been able to work any job I am aware of because of the pain and stiffness. Before my doctors could adjust the medication or determine the cause of my side effects, I was placed on administrative leave on June 18, 1996 and terminated on July 23, 1996."
The Defendant set out the number of days that the Plaintiff missed in its summary judgment evidence. The Plaintiff has presented no summary judgment evidence in response.
An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. The Plaintiff cannot argue that it was not critical to the performance of the essential functions of the job for the Plaintiff to be at work to provide the nursing services that she was hired for. Regular attendance is an essential function of most jobs. Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) ("[a]n essential element of any government job is an ability to appear for work . . . and to complete assigned tasks within a reasonable period of time") (quoting Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)). See also, Tyndall v. Nat'l Educ. Centers, Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) ("a regular and reliable level of attendance is a necessary element of most jobs"); Law v. United States Postal Serv., 852 F.2d 1278, 1279-80 (Fed. Cir. 1988) ("an agency is inherently entitled to require an employee to be present during scheduled work times, and, unless an agency is notified in advance, an employee's absence is disruptive to the agency's efficient operation"); Walders v. Garrett, 765 F. Supp. 303, 309-10 (E.D.Va. 1991) ("employees cannot perform their jobs successfully without meeting some threshold of both attendance and regularity[;] the necessary level of attendance and regularity is a question of degree depending on the circumstances of each position, . . . however . . . some degree of regular, predictable attendance is fundamental to most jobs"), aff'd, 956 F.2d 1163 (4th Cir. 1992); Santiago v. Temple Univ., 739 F. Supp. 974, 979 (E.D.Pa. 1990) ("attendance is necessarily the fundamental prerequisite to job qualification"), aff'd, 928 F.2d 396 (3d Cir. 1991).
Even though the Court finds that there is no summary judgment evidence in favor of the Plaintiff of these issues, the Court will address whether the Plaintiff ever proposed a "reasonable accommodation" to her disability. Failure to reasonably accommodate the plaintiff is one element of a prima facie case of discrimination under the ADA, 42 U.S.C. § 12111(8), and the plaintiff bears the burden of proof of reasonableness. A "reasonable accommodation" is "a method of accommodation that is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff's preferred accommodation in the context of the particular [employer's] operations." Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993), cert. denied, 511 U.S. 1030, 114 S.Ct. 1538 (1994) (interpreting "reasonable accommodation" under the Rehabilitation Act).
The Court finds that the Plaintiff has offered no summary judgment evidence that she ever proposed a reasonable accommodation that would enable the Plaintiff to perform the essential functions of her job. The evidence, viewed in the light most favorable to the Plaintiff, at best only establishes that she needed to be allowed to work only half of a full time schedule and to be allowed to miss any additional days of work that she deemed necessary. The Court holds, as a matter of law, that the Plaintiff failed to offer a reasonable accommodation to the City and cannot now argue in court that the City violated her rights under the ADA by failing to accommodate her. "When the nature of the disability, resulting limitations, and necessary accommodations are uniquely within the knowledge of the employee and his health-care provider, a disabled employee cannot remain silent and expect his employer to bear the initial burden of identifying the need for, and suggesting, an appropriate accommodation." Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). The Court notes, as an aside, that the Plaintiff has not identified any other employee who was allowed to miss an equal amount of work and was retained.
In Taylor v. Principal Fin. Group, Inc., 93 F.3d 155 (5th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 586 (1996), the Fifth Circuit upheld summary judgment in an ADA case involving Bipolar Disorder where the summary judgment record showed that the employee failed to inform his employer that he suffered a limitation as a result of his alleged impairment. Id. at 164. The panel emphasized the importance of "distinguish[ing] between an employer's knowledge of an employee's disability versus an employer's knowledge of any limitations experienced by the employee as a result of that disability." Id. The court stated that "[t]his distinction is important because the ADA requires employers to reasonably accommodate limitations, not disabilities." Id. [check quote]
It is well-established that an employee who cannot, even with accommodation, perform the essential functions of the job has no claim under the ADA because the employee is not a qualified individual with a disability. 29 C.F.R. § 1630.9(d); Hankins v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996). The Plaintiff failed to meet this legal standard on several levels. Although the Plaintiff claimed that she was able to perform the essential functions of a Public Health Nurse Level III with an accommodation, she claims that she suffered from pain so severe that she was bed-ridden, her joints were swollen, had a poor short term memory and an inability to grip a writing implement (among other maladies). The Plaintiff has failed to suggest any accommodation that the employer could have provided that would have allowed a person with these alleged disabilities to perform her job without creating a direct health risk to the patients that the City wanted her to serve.
The Defendant has also established that the Plaintiff was required to attend certain educational courses. When the City hired the Plaintiff the second time, it hired her to work only half time. The EEOC regulations accompanying the ADA define "essential functions" as "the fundamental job duties of the employment position." 29 C.F.R. § 1630.2(n). Though the term does not include "marginal functions," those functions that are essential are not limited to those that are not marginal.
The Plaintiff argues that the Defendant is liable because it did not accommodate her limitations. She argues that she "was disabled without taking medication. However, she was still disabled after taking the medication." The Court cannot understand what accommodation an employer can make for an employee who is disabled both with and without medication. Instead, the Plaintiff has created (without citing legal authority) a requirement that an employer should have "at least entered into an interactive process with the Plaintiff even though the Plaintiff did not know and could not know what exactly was causing her side effects."
The Defendant contends that it terminated the Plaintiff because of her persistent absenteeism and failure to provide medical documentation to support these absences or the need for accommodation. Defendant asserts that the employment actions taken in response to Plaintiff's attendance record were non-discriminatory under the ADA because regular attendance is an essential requirement of the scheduling position. Based on the summary judgment evidence on file in this case, the Court agrees with Defendant's position. Plaintiff offers no evidence to contradict Defendant's assertion that regular attendance is essential to her position. The Plaintiff cannot contest that her absenteeism has been excessive throughout her tenure as a City employee. Recent Fifth Circuit precedent has held that "`an essential element of any . . . job is an ability to appear for work . . . and to complete assigned tasks within a reasonable period of time.'" Rogers, 87 F.3d at 759 (citing Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)). In other words, regular attendance at work is an essential job function. Hypes v. First Commerce Corp., 134 F.3d 721, 726-27 (5th Cir. 1998). An employee who, despite a reasonable accommodation, cannot attend work on a regular and reliable basis cannot perform the essential functions of his job. "An employee who cannot meet the attendance requirements of the job at issue cannot be considered a `qualified' individual protected by the ADA." Tyndall v. Nat'l Educ. Centers, Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994). If the Plaintiff cannot dispute the employer's contention that an employee is not performing an essential function of his job, then the Plaintiff cannot establish that this reason is pretextual. Since Plaintiff was unable to perform an essential element of her job, she is not a qualified individual under the ADA and her claim must fail as a matter of law.
Therefore, the Plaintiff cannot, as a matter of law, prevail on her ADA claims. The Court GRANTS the Defendant's Motion for summary judgment with respect to this claim.
3. FMLA Claim.
"The FMLA was enacted to help working men and women balance the conflicting demands of work and personal life. It does so by recognizing that there will be times in a person's life when that person is incapable of performing her work duties for medical reasons." Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997); see 29 U.S.C. § 2601(b)(1) (2); Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir.), cert. denied, 119 S.Ct. 72 (1998). The FMLA is based in part on Congress' finding that there is "`inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.'" Satterfield, 135 F.3d at 974-75 (quoting 29 U.S.C. § 2601(a)(4)). The FMLA seeks to accomplish its goals "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(3).
The FMLA contains two distinct provisions — an entitlements clause and an anti-discrimination clause. See 29 U.S.C. § 2612, 2615; Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). The FMLA provides a series of rights to eligible employees. First, the Act requires covered employers to provide eligible employees up to twelve weeks per year of unpaid leave, among other situations, when an employee has a serious health condition that makes the employee unable to perform the functions required by her position. See 29 U.S.C. § 2612(a)(1) (C) [check cite]; Hodgens, 144 F.3d at 159; see also Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999); Price v. Marathon Cheese Corp., 119 F.3d 330, 333 (5th Cir. 1997). Leave taken by an employee for a serious health condition may be taken intermittently or on a reduced leave schedule when medically necessary. See 29 U.S.C. § 2612(b)(1); Marathon Cheese Corp., 119 F.3d at 333. After a qualifying absence, the employer must restore the employee to the same position or to a comparable position as that held by the employee before the leave, with equivalent pay, benefits, and working conditions, and without a loss of accrued seniority. See 29 U.S.C. § 2614(a)(1); 29 C.F.R. § 825.100; Chaffin, 179 F.3d at 319; Hodgens, 144 F.3d at 159; Marathon Cheese Corp., 119 F.3d at 333.
The FMLA also protects employees from retaliation for exercising their rights under the statute. See 29 U.S.C. § 2615(a)(1) (2); 29 C.F.R. § 825.220; Hodgens, 144 F.3d at 159. The Act provides:
§ 2615. Prohibited acts
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.29 U.S.C. § 2615(a)(1) (2). Under these provisions,
[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies.29 C.F.R. § 825.220(c). "Thus, employers have a prescriptive obligation under the FMLA — they must grant employees substantive rights guaranteed by the FMLA — and they have a proscriptive obligation — they may not penalize employees for exercising these rights." Chaffin, 179 F.3d at 319; see also, Nero v. Industrial Molding Corp., 167 F.3d 921, 927 (5th Cir. 1999).
Retaliation claims brought pursuant to the FMLA are analyzed under the same standards that are applied to retaliation claims brought under Title VII and other employment discrimination statutes. See Chaffin, 179 F.3d at 319; King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999); Hodgens, 144 F.3d at 160; Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir. 1997); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). As with other anti-discrimination statutes, "the employee bears the burden of proving that the employer's actions were motivated by the considerations prohibited by the statute." Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998). The Fifth Circuit has held that the burden-shifting technique applicable to Title VII disparate treatment claims also applies to claims of unlawful retaliation. See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (citing McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983)).
Therefore, "if the plaintiff can establish a prima facie case of retaliation, the burden shifts to the defendant to come forward with a legitimate, non-discriminatory reason for the adverse employment action." Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998); see Chaffin, 179 F.3d at 319-20; Ray v. Luka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1249 (5th Cir. 1995) (citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992)); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994). "If the defendant advances a legitimate reason for the adverse employment action, then the plaintiff must adduce sufficient evidence that would permit a reasonable trier of fact to find that the proffered reason is a pretext for retaliation." Sherrod, 132 F.3d at 1122 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973); Grizzle, 14 F.3d at 267); see also Chaffin, 179 F.3d at 320; Ray, 51 F.3d at 1249 (citing Shirley, 970 F.2d at 42). "If the defendant introduces evidence which, if true, would permit the conclusion that the adverse employment action was nondiscriminatory, the focus shifts to the ultimate question of whether the defendant unlawfully retaliated against the plaintiff." Long, 88 F.3d at 305; see also Grizzle, 14 F.3d at 267. To carry her ultimate burden, "an employee must also show that her employer would not have taken the adverse employment action `but for' the employee's participation in the protected activity." Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 972 (5th Cir. 1999); see also Walton v. Bisco Indus., Inc., 119 F.3d 368, 370 (5th Cir. 1997); Long, 88 F.3d at 305 n. 4; Ray v. Tandem Computers, Inc., 63 F.3d 429, 435-36 (5th Cir. 1995).
To establish a prima facie case of retaliation under the FMLA, the plaintiff must show that:
(1) she availed herself of a protected right under the FMLA;
(2) she was adversely affected by an employment decision; and
(3) a causal connection exists between the protected activity and the adverse employment action.
See Hodgens, 144 F.3d at 161; Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997); Morgan, 108 F.3d at 1324; see also Chaffin,79 F.3d at 319; King, 166 F.3d at 891. The employee must demonstrate that the exercise of her rights under the FMLA was a motivating or determining factor in the adverse employment action taken by the employer, i.e., there must be a causal connection. See Hodgens, 144 F.3d at 160; Hypes, 134 F.3d at 726. "The burden of establishing the `causal link' in the prima facie case is much less onerous than the burden of proving `but-for' causation required for the determination of the ultimate issue of retaliation." Sherrod, 132 F.3d at 1122 n. 8; see Long, 88 F.3d at 305 n. 4. A plaintiff need not prove that her protected activity was the sole factor in motivating the employer's challenged decision in order to establish the requisite causal link. Sherrod, 132 F.3d at 1122.
The FMLA entitles an employee to twelve weeks of unpaid leave during any twelve-month period "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D); Chaffin, 179 F.3d at 319; Manuel, 66 F.3d at 761. Under the regulations construing the FMLA, a "serious health condition" is defined as an illness, injury, impairment, or physical or mental condition that involves:
(1) Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity (for purposes of this section, defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom), or any subsequent treatment in connection with such inpatient care; or
(2) Continuing treatment by a health care provider.
29 C.F.R. § 825.114(a)(1) (2); Hodgens, 144 F.3d at 161; Marathon Cheese Corp., 119 F.3d at 334. The Fifth Circuit utilizes a "bright line" test for determining whether an illness qualifies as a "serious health condition":
If an employee is "(1) incapacitated for more than three days, (2) seen once by a doctor, and (3) prescribed a course of medication, such as an antibiotic, she has a `serious health condition' worthy of FMLA protection."
Marathon Cheese Corp., 119 F.3d at 335 (quoting Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028, 1036 (M.D.Tenn. 1995)). The Fifth Circuit has also held that:
under the regulation, where an employee alleges that he has a serious health condition involving continuing treatment by a health care provider, he must first demonstrate a period of incapacity (i.e., the inability to work) for at least four consecutive days. Next, he must show that he received subsequent treatment or had a period of incapacity, in which he was either seen at least two times by a health care provider (or a qualified provider of health care services) or obtained a regimen of continuing treatment under the supervision of a health care provider.
Murray v. Red Kap Indus., Inc., 124 F.3d 695, 698 (5th Cir. 1997).
In this case, the Plaintiff offered no medical evidence of an incapacity. There is no indication that the Plaintiff met the "bright line" test, as there is no credible summary judgment evidence as to why the Plaintiff was incapacitated. There is no summary judgment evidence that she received any medical treatment or course of medication. The Plaintiff's evidence does not go beyond self serving statements made in support of her motion. [I don't buy this — it's inconsistent with the conclusions that she was unable to work at all because of her illness that was used to dismiss the ADA claims.]
The Plaintiff contends that her termination for failure to master the EPSDTs was pretextual because she was not given the same training (or opportunity for training) that other nurses were. The Plaintiff contends that this establishes evidence of retaliation on the part of the Defendant. The Plaintiff makes a tautological argument that the proof of discrimination can be found in the fact that a similar employee, Jan Watson, was treated in a disparate manner. The Plaintiff argues that the fact that Ms. Watson was in the same or similar position as the Plaintiff and was not terminated is proof of discrimination. The Plaintiff contends the reason that she was terminated and Ms. Watson was not was because Ms. Watson was white and had never filed a complaint of discrimination. The Plaintiff conveniently overlooks the fact that Ms. Watson could and was performing the required duties of the job and the Plaintiff could not (and admits as much). The Plaintiff makes a statement in her summary judgment response that is completely unsupported by any summary judgment evidence: "Linda Murphy required greater performance from [the Plaintiff] than those outside of [the Plaintiff's] protected class." The Plaintiff does not explain what is meant by protected class. [What is the conclusion to be drawn from this?]
The third element that must be shown to establish a prima facie case of retaliation is a causal connection between the protected activity and the adverse employment action. Chaffin, 179 F.3d at 319; King, 166 F.3d at 891. As to the causation element, the Fifth Circuit has commented in the context of a Title VII retaliation case:
At first glance, the ultimate issue in an unlawful retaliation case — whether the defendant discriminated against the plaintiff because the plaintiff engaged in conduct protected by Title VII — seems identical to the third element of the plaintiff's prima facie case — whether a causal link exists between the adverse employment action and the protected activity. However, the standards of proof applicable to these questions differ significantly.
Long, 88 F.3d at 305 n. 4 (emphasis in original) [what emphasis?]. The court has observed that the consideration of three factors may be helpful in determining whether a causal link has been demonstrated at the prima facie case stage: (1) the plaintiff's past disciplinary record, (2) whether the employer followed its typical policies and procedures in terminating the employee, and (3) the temporal relationship between the employee's conduct and discharge. Nowlin v. RTC, 33 F.3d 498, 507-08 (5th Cir. 1994) (citing Jenkins v. Orkin Exterminating Co., 646 F. Supp. 1274, 1277 (E.D. Tex. 1986)). "The timing of the adverse employment action can be a significant, although not necessarily determinative, factor." Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995); Hodgens, 144 F.3d at 168, 170; Grizzle, 14 F.3d at 268.
The Defendant did terminate the Plaintiff, but there is no direct summary judgment evidence that it was in retaliation for the Plaintiff's taking of leave under the FMLA. The Court finds, as a matter of law, that the Plaintiff cannot meet the third element to establish a prima facie case; that is, that a causal connection existed between the employee's protected activity and the employer's adverse employment action.
The Court notes that the Plaintiff had a terrible history of absences during her first tenure with the City of Austin. Despite that, the City rehired her and gave her a job requiring only 50% of the attendance of a normal employee. The Plaintiff failed to comply with even this severely reduced job requirement. Under these circumstances, it cannot be said that "but for" the exercise of her rights under the FMLA, she would not have been terminated from her employment with the City of Austin. Therefore, a causal connection between the Plaintiff's termination and the exercise of her rights under the FMLA cannot be inferred.
The Defendant contends that there were several legitimate bases for the Plaintiff's termination. She failed to complete her probationary period in a successful manner. She failed to demonstrate essential skills necessary for her position. And, as is well established in the record, chronic absenteeism. There is summary judgment evidence that the Plaintiff was inadequate with her EPSDT skills. The Plaintiff has failed to present any summary judgment evidence that would lead a reasonble juror to believe that these proffered reasons were pretextual and based on a retaliatory motive other than the Plaintiff believes that is what transpired. The Plaintiff's subjective belief is insufficient.
This case is controlled by the Fifth Circuit holding in Bocalbos v. National Western Life Ins., Co., 162 F.3d 379 (5th Cir. 1998). In Bocalbos, an employee who had been terminated from his position as an actuary after returning from unpaid leave sued his employer under the FMLA. In Bocalbos, the Defendant offered a nonretaliatory reason for the employee's termination: the employer made clear that actuary students would be required to take certain qualifying examinations that were available during certain months of the year until they achieved a requisite score. The Plaintiff in that case was fully aware of those dates when he took his FMLA leave. In Bocalbos, as here, the attainment of certain standard educational credits was a standard job requirement, and the failure to satisfy a legitimate job requirement is a nondiscriminatory and legitimate grounds for the termination of an employee.
The Court finds, as a matter of law, that the Plaintiff has failed to establish that her termination was pretextual through summary judgment evidence pertaining to Ms. Watson. The Plaintiff's coworker was not similarly situated to the Plaintiff, for purposes of showing that the City's proffered reasons for retaining the coworker but not the Plaintiff, were a pretext for retaliation under ADA because the only summary judgment evidence before the Court is that the coworker's experience allowed her an easier transition into the employment position than the Plaintiff. Moreover, it is irrelevant even if the Plaintiff could establish that the employer's perception of the relative skills of the Plaintiff and coworkers was incorrect, the Defendant proffered a legitimate, non-discriminatory reason for its personnel decision, and the Plaintiff has failed to establish that the reason was false.
Moreover, the Plaintiff cannot establish that the Defendant violated the FMLA. The Defendant provided the Plaintiff with substantially more leave time than was required by the FMLA in each of the years that she was a City employee. The City, after granting the Plaintiff more than just FMLA leave time, rehired the Plaintiff. The Plaintiff cannot present any evidence of any other employee who was provided a similar amount of time off. The Plaintiff offers no evidence that the Defendant terminated her in retaliation for her taking FMLA leave. To the contrary, the Defendant allowed the Plaintiff to take a substantially higher number of days off than the FMLA would provide. The FMLA does not prohibit an employer from terminating an employee who, because of her illness, and notwithstanding that she has been provided more than the twelve weeks off mandated by the FMLA, cannot perform the essential elements of her job.
In the final analysis, the only summary judgment evidence that the Plaintiff has offered of retaliation is her own subjective perception of retaliation. It is well established, however, that an employee's own subjective belief of retaliation, no matter how genuine, cannot serve as the basis for judicial relief. See, e.g., Marathon Cheese Corp., 119 F.3d at 337; Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996); Douglass, 79 F.3d at 1430; Ray, 63 F.3d at 434; Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir. 1995), cert. denied, 516 U.S. 1047 (1996). As a consequence, the Plaintiff is unable to establish a prima facie case of retaliation under the FMLA. Therefore, summary judgment in favor of the City of Austin is mandated.
3. Asbestos Issue.
Finally, the Court will address the "asbestos" issue. The Plaintiff contends that the Defendant is liable under some unclear theory that it "may" have caused the Plaintiff severe pain by not informing the Plaintiff that she was working in a building that had asbestos lining. In other words, the Plaintiff offers no credible summary judgment evidence that the Plaintiff suffered an injury as a result of a building with asbestos lining. Having failed to offer any such evidence of causation, the Plaintiff claims that the Defendant is liable for not providing an accommodation with respect to the asbestos lined walls.
[Need some explanation and conclusions here.]
CONCLUSION
To summarize, the City of Austin's Motion for Summary Judgment is GRANTED. The Plaintiff has failed to present a claim that would entitle her to relief. There remain no material facts in dispute, and the City of Austin is entitled to judgment as a matter of law. Plaintiff's claims are therefore DISMISSED WITH PREJUDICE.