Opinion
Case No. 3:01-cv-279-J-21TJC
July 29, 2002
ORDER
Before the Court are the following:
1. Defendant's Motion for Summary Judgment (Dkt. 13), Plaintiffs Response (Dkt. 24) in opposition thereto, and Defendant's Reply (Dkt. 35) memorandum.
2. Defendant's Motion to Dismiss and/or for Sanctions (Dkt. 36) and Plaintiff's Response (Dkt. 37) in opposition thereto.
3. Plaintiffs Motion to Strike (Dkt. 40) and Defendant's Response (Dkt. 41) in opposition thereto.
I. Background/Facts
Plaintiff filed suit on March 8, 2001, alleging that Defendant engaged in "association discrimination" under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., when it terminated her employment following her request for an indefinite leave of absence.
The Plaintiff, Veleria Pittman, was hired by Defendant, Moseley, Warren, Prichard Parrish, as a full time paralegal on a temporary basis in March of 1999 and on a permanent basis in May or June of 1999. Prior to being hired, Plaintiff was interviewed by Robert Warren and Kimberly Israel, members of Defendant's firm. Warren and Israel explained that Plaintiff was being hired primarily to assist with a large maritime case, the "Merchant Patriot" case. Warren and Israel explained that there were a large number of documents related to the Merchant Patriot case and that a significant amount of time would be required to locate, review, and organize the documents. Plaintiff stated that she believed that she could perform these required duties. During the interview, Plaintiff informed Warren and Israel that her daughter was autistic and that, consequently, she would need to take time off to take her six-year-old daughter to various appointments related to her condition and to care for her daughter if she became ill. Warren and Israel expressed a willingness to work with Plaintiff.
Since the filing of this case Plaintiff has married and her married name is Veleria Pittman-Fabiszak.
The Merchant Patriot case involved, inter alia, claims related to damaged cargo following a storm that partially sank a vessel. The cargo claims could be divided into claims related to steel coils and claims related to a steel mill. The court in the Merchant Patriot case bifurcated the case, trying the issue of liability first. The liability phase of the case began on January 5, 2000. The court found that Defendant's client was liable for the damages caused under the facts of the case and set the damages phase for June 5, 2000. The damages phase was subsequently bifurcated with a trial regarding the coil claims scheduled for June 5, 2000, and a trial regarding the steel mill claim scheduled for early August 2000. The coil claims settled several days before the damages phase regarding those claims was to begin. The remaining steel mill claim represented potential liability in excess of fifteen million dollars.
There is no dispute that throughout Plaintiff's employment with Defendant, Defendant, particularly Warren and Israel, were sympathetic to Plaintiff's and her daughter's situation. Plaintiff does not dispute that Defendant did not deny any of her requests to take time off to care for her daughter prior to the request that led to her termination. Plaintiff made as much of the missed time up as she could by working evenings and weekends when possible.
Pursuant to Defendant's leave policy, each employee accrues fifty-two hours of paid sick leave each year. In addition, each employee accrues forty hours of vacation time during the first six months of the calender year and an additional forty hours of vacation time during the second six months. By August 23, 1999, Plaintiff had exhausted her sick leave for the rest of 1999. Plaintiff was allowed to use eight hours of sick leave from 2000 during 1999. By February 15, 2000, Plaintiff had exhausted her sick leave for 2000.
In December of 1999, Plaintiffs' daughter's condition deteriorated as Plaintiff's daughter began having seizures. By April or May of 2000, Plaintiff's daughter's condition had deteriorated to the point where should could no longer remain in school even with the assistance of an aid. In light of her daughter's condition, Defendant's allowed Plaintiff to modify her schedule such that she would work Monday through Thursday for ten hours a day. Friday was reserved for medical appointments. For appointments required to be scheduled on other days, Plaintiff was to make up the lost time on Fridays where possible.
In May of 2000, Plaintiff's daughter's condition further deteriorated. She became nonverbal and had problems with her equilibrium. On May 22, 2000, Plaintiff was allowed to reduce her schedule to four eight-hour days per week. On May 23, 2000, Plaintiff sent an email to Defendant's office administrator inquiring whether the firm had a medical leave of absence policy. The request was prompted by the possibility that her daughter would have to be sent to a hospital in Miami. During the first week of June, Plaintiff's daughter began having respiratory problems. During the week of June 5, 2000, Plaintiff learned that her daughter had to be flown to Miami. On June 8, 2000, Plaintiff requested an indefinite leave of absence. Plaintiff offered to take a company laptop down to Miami to work on the Merchant Patriot case while in the hospital with her daughter. On the same day, Defendant terminated Plaintiff's employment. When Plaintiff was terminated, she had used 29.27 hours of sick leave which had not been accrued.
At the time Plaintiff was terminated, Defendant was awaiting the receipt of numerous documents related to the damages suffered by the steel mill claimant(s). On June 16, 2000, Defendant received eight crates of documents related to these damages. Plaintiffs replacement was hired and began working on July 5, 2000. A second paralegal was hired to work on the Merchant Patriot case and began working on August 16, 2000.
Plaintiffs daughter remained hospitalized in Miami until July 8 or 9, 2000. She was then transferred to Shands Hospital in Gainesville, where she remained for another two weeks.
II. Defendant's Motion for Summary Judgment
A. Standard of Review
Summary judgment is appropriate only when a court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this determination, a court must view all the evidence in the light most favorable to the non-moving party. See Samples on Behalf of Samples v. City of Atlanta 846 F.2d 1328, 1330 (11th Cir. 1988). The burden of establishing the absence of a genuine issue is on the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the burden extends only to facts that might affect the outcome of the suit under the governing law. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once this burden is met, the non-moving party must "go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file, "designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 342. However, a plaintiff need only present evidence from which the trier of fact might return a verdict in his favor in order to survive a summary judgment motion. See Samples on Behalf of Samples v. City of Atlanta 846 F.2d at 1330.
B. Discussion
The ADA prohibits covered employers from discriminating "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." 42 U.S.C. § 12112(a). Under the ADA, the term "discriminate" includes "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4).
Absent "direct evidence of discrimination, a plaintiff may establish a prima facie case of an ADA violation through circumstantial evidence using the familiar burden shifting analysis employed in Title VII employment discrimination cases." Wascure v. City of South Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). To establish a prima facie case of "association discrimination" a plaintiff must establish that (1) she suffered an adverse employment action; (2) she was qualified for the job at the time of the adverse employment action; (3) the employer knew that a member of the plaintiffs family was disabled; and (4) "the adverse employment action occurred under circumstances which raised a reasonable inference that the disability of the relative was a determining factor in [the employer's] decision." Hilburn v. Murata Elecs. North America. 181 F.3d 1220, 1231 (11th Cir. 1999). Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to produce a legitimate nondiscriminatory reason for the adverse employment action.See Wascura, 257 F.3d at 1242. The defendant's burden is merely one of production. See id. Once a defendant satisfies its burden of production, the plaintiff has the burden of offering proof that the proffered legitimate nondiscriminatory reason is merely a pretext. "If the plaintiff fails to proffer sufficient evidence to create a genuine issue of material fact as to whether each of the defendant's proffered reasons is pretextual, the defendant is entitled to summary judgment." Id. at 1243.
"Direct evidence of discrimination is evidence, that, `if believed, proves [the] existence of[a] fact in issue without inference or presumption.'" Schoenfeld v. Babbitt 168 F.3d 1257, 1266 (11th Cir. 1999) (quoting Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997)) (alterations in original). Evidence that "merely suggests a discriminatory motive" is circumstantial evidence. Id.
In the instant case, there does not appear to be any dispute that Plaintiff has not provided any direct evidence of discrimination. In addition, Defendant concedes that Plaintiff has established the first and third elements of a prima facie case-that she was subjected to an adverse employment action and that Defendant knew at that time that a member of her family was disabled. Defendant asserts, however, that Plaintiff has failed to establish that she was qualified for the job or that the adverse employment action occurred under circumstances that create a reasonable inference that the disability of the relative was a determining factor in Defendant's decision to terminate Plaintiff.
1. Qualified for the Job at the Time of the Adverse Employment Action
A qualified individual with a disability is defined 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." 42 U.S.C. § 12111. An individual is not qualified for his job if he is unable to meet the attendance requirements of the job. See Hilburn v. Murata Elecs. North America, 181 F.3d 1220, 1231 (11th Cir. 1999) (citing with approval Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209 (4th Cir. 1994)). A non-disabled employee is not entitled to a reasonable accommodation because of his "association" with a disabled person. See 29 C.F.R. Pt. 1630, App. Thus, a non-disabled employee is "not entitled to a modified work schedule as an accommodation to enable the employee to care for" someone with a disability. Id. While the prohibition of "association discrimination" is intended to prevent, inter alia, an employer from declining to hire a qualified individual because the "employer believes that the applicant would have to miss work or frequently leave work early in order to care for" a disabled personid., an employer's decision to terminate an employee based on an established record of absences to care for a disabled person and a clear indication that additional time off is needed for the same purpose does not violate the association" provision of the ADA, see Hilburn, 181 F.3d at 1231; Tyndall, 31 F.3d at 214.
In Tyndall, a disabled plaintiff who had a disabled son was employed as a part time instructor with the defendant. The defendant permitted the plaintiff to take sick leave when necessary and to arrive late or leave early because of her illness. After missing nineteen days during the first half of the year, the plaintiff was granted a three and one-half week leave of absence to be with her son who had surgery in another state. While on leave, the plaintiff informed the defendant that she needed an additional, indefinite leave of absence to care for her son's postoperative needs. In light of this request, the defendant encouraged the plaintiff to resign, which she did.
The court, reviewing the trial's decision to grant summary judgment for the defendant, considered whether the plaintiff was qualified for her job. See Tyndall, 31 F.3d at 212. While the plaintiff asserted that she was qualified for her job because she could perform all of her teaching duties and received strong performance evaluations, the court stated that, to be qualified, more is required than "possessing the skills necessary to perform the job in question." Id. The court ruled that, "[e]xcept in the unusual case where an employee can effectively perform all work-related duties at home, an employee `who does not come to work cannot perform any of his job functions, essential or otherwise.'" Id. (quoting Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986)) (emphasis in original). Thus, the court stated that "a regular and reliable level of attendance is a necessary element of most jobs," and an employee must be able to meet a job's attendance requirements to be considered qualified for the job. Id. The court held that the plaintiff was not qualified for her job because regular and reliable attendance was a requirement on-the-job and she had missed almost forty days in seven months; she also missed the beginning of two semesters and requested to miss the beginning of a third semester. See id.
Similarly, in the instant case Plaintiff has failed to show that she was qualified for her job. Plaintiff has presented no evidence that the job of a paralegal is the rare type of job that can be effectively performed without regular attendance. To the contrary, Defendant has presented evidence that it needed a full-time paralegal who could be in the office to locate and review documents and to consult with attorneys about upcoming litigation. In addition to the numerous documents Defendant had already located and received regarding the Merchant Patriot case (the case on which Plaintiff was hired to work primarily), Defendant was expecting numerous additional documents relating to the itemization of damages. Approximately one week after Plaintiff asked for an indefinite leave of absence, Defendant received eight crates of documents which needed to be reviewed, organized, and discussed with the attorneys working on the case. This does not appear to be the type of work that could be performed absent regular attendance.
Despite the job requirement of regular attendance, Plaintiff has not established that she was able to regularly attend work. Defendant, on the other hand, has presented evidence that at the time Plaintiff was terminated, she had been permitted to adjust and reduce her schedule; she had been absent for hours in excess of her accrued leave; and she had requested an indefinite leave of absence.
Plaintiff has failed to show that there is a genuine issue regarding her qualification for her job at the time she was terminated — a material fact in this case.
Plaintiff asserts that she was qualified for the job because Defendant regularly allowed her to work on a company laptop while staying in the hospital with her daughter. Plaintiff contends that, despite raising this possibility when she asked for an indefinite leave of absence, Warren rejected this alternative without adequately assessing the option.
Plaintiffs argument, however, is not convincing. While Defendant may have been willing and able to accommodate Plaintiff by allowing her to be absent from her job and yet complete work on a laptop computer in the hospital with her daughter, Defendant is not legally required to provide an "employee without a disability with a reasonable accommodation" so that she can care for a disabled relative, 29 C.F.R. Pt. 1630, App. In addition, Defendant's willingness to accommodate Plaintiff in the past by allowing her to take additional time off and to work on a laptop computer while staying with her daughter in the hospital does not create a duty to do so again. Such a rule would penalize employers who extend its largesse to employees who, though needy, have no legal right thereto.
Plaintiff also argues that she was qualified for the job because Defendant allowed Beverly Troupe, a legal secretary for Defendant, to take personal leave under similar circumstances and that this indicates that Defendant permits employees to take personal leave to care for sick or disabled relatives. As discussed in the preceding paragraph, Defendant's willingness to accommodate its employees caring for sick or disabled relatives by allowing them to take personal leave is commendable but not required by the ADA. The ADA does not require an employer to provide a non-disabled employee with a reasonable accommodation. See, Hartog v. Wasatch Academy, 129 F.3d 1076, 1084 (10th Cir. 1997); 29 C.F.R. Pt. 1630, App.
2. Inference That Relative's Disability Was a Determining Factor
Even if Plaintiff were qualified for her job at the time of termination, she has failed to establish the fourth element of the prima facie case-that the adverse employment action occurred under circumstances that create a reasonable inference that the disability of the relative was a determining factor in Defendant's decision to terminate Plaintiff.
In Tyndall, while the court stated that "an employer may not make decisions based on the "belie[f] that the [employee] would have to miss work' in order to take care of a disabled person," 31 F.3d at 214 (quoting 29 C.F.R. § 1630, App.) (alterations in original), the court held that the defendant "did not make an unfounded assumption that [the plaintiff] would have to miss work to take care of' her son. Id. Instead, the court stated, the plaintiff was terminated because of her record of extended absences and her statement that she would need to take additional time off from work. See id.
Similarly, in the instant case Plaintiff has failed to provide any evidence that Defendant's decision to terminate her was based on an unfounded belief that she would have to miss work to care for her daughter. To the contrary, evidence has been presented indicating that, over the year during which Plaintiff worked for Defendant as a permanent paralegal, she needed more time off than was allowed by Defendant's leave policy. More importantly, Plaintiff was terminated after requesting an indefinite leave of absence. In light of Plaintiff's previous attendance and her request for an indefinite leave of absence, Defendant's decision to terminate Plaintiff does not appear to be based on an unfounded belief that she would have to miss work.
Plaintiff asserts that she has satisfied the fourth element of the prima facie case because she has provided evidence that: (1) Warren was aware of her daughter's imminent hospitalization when he terminated her; (2) Plaintiff was terminated several days after the second of the three Merchant Patriot trials settled; and (3) Defendant did not hire a replacement paralegal until almost a month after terminating Plaintiff.
Plaintiff's first point is without merit. Defendant's knowledge of Plaintiff's daughter's imminent hospitalization alone does not create an inference that Plaintiff's daughter's disability was a determining factor in Defendant's decision to terminate Plaintiff. Defendant had been aware of Plaintiff's daughter's disability since before Plaintiff was hired. Thus, from Defendant's perspective, the only significance of Plaintiff's daughter's imminent hospitalization was that Plaintiff would have had to miss additional time at work. Thus, Instead of creating an inference of discrimination, Defendant's knowledge of the imminent hospitalization and Plaintiff's related need for an indefinite leave of absence supports the assertion that Defendant terminated Plaintiff because of her previous attendance record and her expressly-stated need for additional leave to care for her daughter.
Plaintiffs second point also does not create a reasonable assumption of discrimination. While the second Merchant Patriot trial had settled, another trial, which involved potential liability in excess of fifteen million dollars, still remained. Even if no Merchant Patriot trials remained, Defendant would not have been required to accommodate Plaintiff's scheduling needs. See 29 C.F.R. Pt. 1630, App. As discussed above in Section II.B.1. hereof, a regular and reliable level of attendance was a necessary element of Plaintiff's job. Thus, Plaintiff was not entitled to an indefinite leave of absence regardless of the work load at the time.
Similarly, Plaintiff's final argument, that Defendant did not hire a replacement paralegal until almost one month after terminating Plaintiff, does not create a reasonable inference of discrimination. This argument appears to be directed at Defendant's proffered legitimate nondiscriminatory reason for terminating Plaintiff — that Defendant needed a paralegal who could be present to work on the Merchant Patriot case. Plaintiff appears to argue that, to the extent that this fact demonstrates that Defendant's proffered legitimate nondiscriminatory reason is pretextual, a jury could infer a discriminatory intent on Defendant's behalf. The argument would continue that since a jury could infer a discriminatory intent, Plaintiff has sufficiently established the fourth element of the prima facie case. The Court disagrees.
The record evidence does not permit a reasonable inference that Plaintiff's daughter's disability was a determining factor in Defendant's decision to terminate her. It is significant that Plaintiff has provided no other evidence of a discriminatory intent. In fact, Plaintiff concedes that Warren and Israel were always sympathetic to her and her daughter's plight and were always accommodating. Absent any other evidence of discrimination, a reasonable jury could not draw the inference from the time required to hire Plaintiffs replacement that Plaintiff's daughter's disability was a determining factor in Defendant's decision to terminate Plaintiff.
III. Defendant's Motion to Dismiss and/or for Sanctions
The Court will address Defendant's Motion to Dismiss and/or for Sanctions (Dkt. 36) by separate order.
IV. Plaintiff's Motion to Strike
The Court did not consider Defendant's Request for Admissions and Supplemental Statement of Undisputed Facts in ruling on Defendant's Motion for Summary Judgment. In light of the Court's ruling on Defendant's Motion for Summary Judgment, Plaintiff's Motion to Strike is moot.
Upon consideration thereof, it is hereby ORDERED and ADJUDGED:
1. Defendant's Motion for Summary Judgment (Dkt. 13) is GRANTED; the Clerk is DIRECTED to enter judgment for Defendant.
2. Plaintiffs Motion to Strike (Dkt. 40) is DENIED as moot.
3. The Court reserves jurisdiction to rule upon Defendant's Motion to Dismiss and/or for Sanctions (Dkt. 36) by separate order.