Opinion
Civil Action No. 3:04-CV-756-M.
March 22, 2005
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed on January 3, 2005. For the following reasons, the Court is of the opinion that Defendant's Motion should be GRANTED.
Background
Plaintiff Laura Roberts ("Roberts") is a former employee of Defendant The Mega Life and Health Insurance Company ("Mega"). Roberts was hired by Mega as a customer care representative in August of 1999. Her position required her to communicate with Mega's customers over the telephone, and did not require that she engage in significant physical activity. Beginning in March of 2001, Roberts was assigned to a part-time schedule, from 8:00 a.m. until 3:00 p.m. Roberts asked that she not be scheduled to work past 3:00 p.m., so she could pick up her child from school and attend doctors' visits when necessary.
In January of 2002, Roberts was hospitalized for hysterectomy surgery, and requested six to eight weeks of leave from Mega. Roberts's request was granted. Near the end of her leave period, Roberts advised Mega that she was suffering from fibromyalgia and lyme disease, and would require additional leave. Mega authorized an additional leave of absence for Roberts, to last until March 25, 2002. During her leave of absence, Roberts was informed that Mega had eliminated part-time positions for customer care representatives, and that when she returned to work she would be required to work from 8:00 a.m. until 5:00 p.m. Roberts returned to work on March 25, 2002. After her return, Roberts worked until 5:00 on some days, and on others she left at 3:00. She told Mega that her medical condition left her fatigued and incapable of working nine-hour days.
In April of 2002, Roberts participated in email and face-to-face discussions with her supervisors in which her supervisors expressed their dissatisfaction with her failure to work consistently until 5:00 p.m. They suggested that she be transferred to a Mega division in which parttime work was available. Roberts responded that she did "not want to work in any other department," and added, "I feel I am very good at customer service. This position does have and is able to provide flexiable [sic] working hours. You just choose not to provide them to me." On April 29, 2002, Mega suspended Roberts for three days, purportedly due to her refusal to work a full-time schedule. During her suspension, Roberts was contacted by representatives from Mega's Human Resources Department, who discussed her eligibility for short-term and long-term disability benefits. Roberts was approved for disability benefits by Mega's insurer, and she did not subsequently return to work. In August of 2002, she also applied for Social Security disability benefits. In her application for Social Security benefits, Roberts stated that because of pain and fatigue, she was unable to get out of bed until 11:00 a.m. or noon, and was often home-bound.
Roberts was terminated by Mega on November 12, 2003. Mega claims she was terminated pursuant to a policy limiting any employee's leave of absence to a maximum of eighteen months. Roberts admits that the eighteen-month leave policy is delineated in Mega's employee manual, and that she was aware of the policy before her termination. Roberts states that she was unaware, however, that she was ever actually placed on a leave of absence. She also states that Mega's conduct led her to believe she was terminated on April 29, 2002. Roberts alleges that by suspending and terminating her, Mega discriminated against her on the basis of her disability, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 (2005).
Analysis
Under Fed.R.Civ.P. 56(c), summary judgment is appropriate when the pleadings and record evidence show there to be no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The burden is on the moving party to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Labs., 919 F.2d 301, 302 (5th Cir. 1990). In evaluating a Motion for Summary Judgment, the court draws all reasonable inferences in favor of the nonmoving party, without making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, bare allegations in the briefs and pleadings of the nonmoving party are insufficient to withstand summary judgment. Alizadeh v. Safety Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).
If the moving party meets its initial burden, then the burden shifts to the non-moving party, who must produce evidence establishing a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to her case, and on which she bears the burden of proof at trial, summary judgment is appropriate. Id. at 322-24.
Under the ADA, an employer is prohibited from "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship . . ." 42 U.S.C. § 12112(b)(5)(A).
Mega contends that summary judgment is warranted because there is no evidence that Roberts is a "qualified individual with a disability," as that term is defined in the ADA. See 42 U.S.C. § 12111(8). It argues that Roberts's ADA claim is precluded by her sworn statement in her application for Social Security benefits, in which she claimed she was regularly unable to leave her bed until 11:00 a.m or noon, due to pain and fatigue caused by her medical condition, and was often confined to her home. Assuming Roberts's condition to be as she then represented it, Mega argues she could not possibly perform the essential functions of her job, even with reasonable accommodations. The inconsistency Mega cites is not necessarily fatal to Roberts's ADA claim. When a plaintiff makes statements in a sworn application for disability benefits that are seemingly inconsistent with her burdens under the ADA, she must provide an explanation reconciling the conflict, which would be "sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless perform the essential functions of her job, with or without reasonable accommodation." Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 807 (1999).
Roberts attempts to reconcile these positions by arguing that the statements in her application for Social Security benefits were made in August of 2002, after her condition was exacerbated by stress resulting from Mega's alleged discrimination against her. In support of this assertion, Roberts cites the deposition testimony of her physician, Dr. Moayad, who states that Roberts's condition suffered a notable deterioration between March 1, 2002 and May 15, 2002. He does not express an opinion as to the cause of the deterioration, but Dr. Moayad explains that stress is one factor which often aggravates neurological disorders. The Court finds Roberts's explanation insufficient to meet her burden under Cleveland, 526 U.S. at 807. To survive summary judgment, Roberts must explain how she was capable of performing her job, with reasonable accommodation, on April 29, 2002, and yet was incapable of performing her job in August of 2002. Stated differently, she must specifically allege that the deterioration in her condition, which made her unable to perform her job, with or without accommodation, occurred after Mega suspended her. Roberts has not made such an allegation, nor offered any evidence of a deterioration to that effect. Therefore, Roberts's explanation is insufficient to permit a reasonable juror to conclude that she was a "qualified individual with a disability."
Defendant moves to strike this testimony under Fed.R.Evid. 701. That Motion is denied.
Even assuming that Roberts had satisfied her burden under Cleveland of reconciling her statements to the Social Security Administration with her factual assertions in this case, Mega contends that summary judgment is warranted because there is no evidence that it failed to make a reasonable accommodation for Roberts's disability. It alleges it offered Rogers a reasonable accommodation when it attempted to locate a part-time position for her in another department, and that Roberts rejected that accommodation. It is uncontested that Mega did not thereafter invite Roberts to return to work, did not explicitly inform her that her employment status had changed, and did not make any further attempts to accommodate her disability.
Under the ADA and its implementing regulations, an employer and its disabled employee share responsibility for crafting reasonable accommodations. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999). An employer who is unwilling to "engage in a good faith interactive process" violates the ADA. See id. On the other hand, an employee who is responsible for a breakdown of the good-faith accommodation dialogue may not successfully pursue a claim under the statute. See id. Thus, where the parties try and fail to reach an accommodation, the Court's job is to "isolate the cause of the breakdown and then assign responsibility." Id. at 740.
Roberts argues that Mega did not engage in a good faith interactive process, for two reasons. First, she alleges Mega's refusal to permit her to work a seven-hour shift was in bad faith, because others in her department were permitted to work such a shift. However, Roberts introduces no evidence to that effect. Instead, she offers her deposition testimony that co-workers told her that others in her department worked part-time shifts. It is axiomatic that this hearsay testimony is inadmissible for purposes of proving the truth of the statements of Roberts's coworkers. See FED. R. EVID. 802. Accordingly, Mega's Motion to Strike this portion of Roberts's summary judgment evidence is granted. The Court finds there to be no competent summary judgment evidence that Mega permitted other customer care representatives to work the schedule requested by Roberts.
Second, Roberts alleges Mega is responsible for the breakdown in the accommodations dialogue because it ceased communicating with her after she filed for disability benefits. She claims Mega had a duty to reinitiate the dialogue after late April of 2002. The Court disagrees. Mega proposed an accommodation in the form of a transfer to a part-time position in another department, and Roberts informed Mega that such an accommodation was unacceptable to her. Roberts told Mega that the only accommodation she was willing to accept was a part-time schedule in her customer care position. An employer is not required to provide an employee with the precise accommodation she desires, but only one that is objectively reasonable. See Beaver v. Delta Air Lines, Inc., 43 F. Supp.2d 685, 694 n. 14 (N.D. Tex. 1999), citing Gile v. United Airlines, Inc., 95 F.3d 492 (7th Cir. 1996). It need not create new positions for a disabled employee, or alter an existing position in a way that would shift additional work to the disabled employee's coworkers. Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996). Although Roberts now argues that her statements that she did not want to work in another department should not be interpreted as an ultimatum, she admitted in her deposition to telling Mega that if Mega was unable to keep her in her existing position on a part-time basis, it might have to fire her.
The Court finds no evidence that Mega acted in bad faith when it apparently decided that a further accommodations dialogue with Roberts would be futile. It also finds that Mega has met its summary judgment burden of proving Roberts responsible for the cessation of the dialogue. See Loulseged, 178 F.3d at 740 (when the employee intentionally abandons the accommodations dialogue, or abandons it because of her "subjective spin" that taints her perception of the employer's efforts, then the employer is relieved of liability under the ADA). Accordingly, Roberts's claim under the ADA is precluded as a matter of law, and Mega's Motion for Summary Judgment is GRANTED. See id. at 736.
Even were the Court to conclude that Mega failed to meet its burden of proving it offered reasonable accommodations to Roberts, summary judgment would nevertheless be warranted under a McDonnell Douglas analysis. Where, as here, a plaintiff's ADA claim is based on circumstantial evidence, she must make out a prima facie of discrimination in order to survive summary judgment. This requires her to show she: (1) suffers from a disability; (2) was qualified for the job in question; (3) was subject to an adverse employment action; and (4) was replaced by a non-disabled person or treated less favorably than non-disabled employees. McInnis v. Alamo Community College Dist., 207 F.3d 276, 279 (5th Cir. 2000). Once the plaintiff meets this burden, her employer must respond with a legitimate non-discriminatory explanation for her termination. Id. at 280. If the employer does so, the plaintiff must respond with evidence that the employer's explanation is a pretext for discrimination. Id.
The Court assumes that Roberts's suspension/termination was an adverse employment action, that at that time Roberts was qualified to work a seven-hour schedule, and that Roberts was replaced by a non-disabled individual. The remaining question before the Court is whether Roberts suffers from a disability, as that term is defined in the ADA. To survive summary judgment, Roberts must produce evidence that her physical impairment substantially limits at least one major life activity. See 42 U.S.C. § 12102(2) (2005). The evidence must show that her disability "prevents or severely restricts [her] from doing activities that are of central importance to most people's daily lives." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002). Although Roberts produces evidence that at the time of her suspension she was suffering from pain and fatigue, the only "major life activity" she alleges was impaired by her condition is working.
The only adverse employment actions at issue in this case are Mega's suspension of Roberts and its decision to place her on leave. When Roberts's medical condition deteriorated after her suspension, she became incapable of performing the essential functions of her position, as evidenced by her statements in her application for Social Security benefits. At that time, Roberts became ineligible for relief under the ADA. See McInnis, 207 F.3d at 279.
When a plaintiff alleges she is impaired in the major life activity of working, the term "substantially limits" means "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 CFR § 1630.2(j). The regulations provide that a plaintiff's "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id. Thus, the Court must inquire as to the various types of both similar and dissimilar jobs in the plaintiff's geographic area for which she is potentially disqualified by virtue of her condition. Id.; see also Beaver, 43 F. Supp.2d at 692 (to state an ADA claim based upon her impaired major life activity of working, a plaintiff must produce evidence that her impairment "substantially limits [her] employment generally").
Here, Roberts does not produce any evidence that her condition has disqualified her from the class of telephone customer service jobs available in the Dallas area, nor that that condition has disqualified her from a broad range of other jobs involving comparable skills. The summary judgment evidence indicates that at the time of her suspension, Roberts's ability to perform administrative, clerical and customer service duties was unimpaired between the hours of 8:00 a.m. and 3:00 p.m. Roberts admits she exceeded Mega's expectations of her in the weeks preceding her suspension, despite her reduced hours. Therefore, Roberts bears the burden of producing evidence that employers with comparable customer service positions, or other positions involving similar skills, require their employees to be capable of working in excess of seven-hour days. She has not met this burden. The Court finds there to be no genuine fact issue as to whether Roberts is impaired in her major life activity of working, and she has failed to make out a prima facie case of discrimination See, e.g., Sheppard v. Great Springs Waters of America, Inc., 1998 WL 154545 (N.D. Tex. March 25, 1998) (rejecting plaintiff's assertion that her inability to work more than 32 hours per week severely restricted her major life activity of working, because the assertion was unsupported by evidence addressing the plaintiff's other opportunities for employment).
Even if the Court declined to grant Mega's Motion for Summary Judgment on the basis of any of the aforementioned deficiencies in Roberts's case, summary judgment is warranted because Roberts introduces no evidence that Mega's stated justification for terminating her was a pretext for discrimination. Mega explains that Roberts was terminated pursuant to a non-discriminatory employment policy by which employees who remain on leave for more than eighteen months are terminated. Mega has introduced evidence that the decision to terminate Roberts was made without consideration of her disability, and that Roberts was aware of its leave policies before the events at issue in this case. As a general proposition, an employer's termination of an employee for violation of a neutral attendance policy is legitimate. See, e.g, Troupe v. Cintas, 2000 WL 1056327 (N.D. Tex. July 31, 2000).
In attempting to prove pretext, Roberts relies on circumstantial evidence. She alleges Mega's explanation is incredulous, because: (1) Mega did not document its decision to place Roberts on a leave of absence; (2) Mega did not tell Roberts she was on a leave of absence; and (3) Mega did not communicate with Roberts during her leave of absence. From these acts, Mega infers discriminatory animus. She claims Mega's improper animus was evidenced by the deposition of Sam Phillips, Mega's Vice President of Human Resources, in which Phillips expressed an inability to recall almost all of the events at issue in this case, except for Roberts's refusal to accept a transfer to another parttime position.
Assuming Roberts's factual allegations are true, the Court finds that none are indicative of pretext. Roberts introduces no evidence that her supervisors' decisions to suspend her, and place her on leave, were motivated by her disability, rather than her refusal to accept a part-time position in another department. Although Mega acted inconsistently with good practice and its own practice in not explicitly advising her that it considered her on leave, there is no evidence to contest Mega's assertions that its sole reason for terminating Roberts was because she had exhausted her eighteen months of leave. There is no evidence at all that she was treated differently because of a disability. It is axiomatic that Roberts's speculation and conjecture to the contrary do not constitute competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). Therefore, Roberts has not demonstrated pretext.
Although Roberts claims Mega's conduct led her to believe she had been terminated on or around April 29, 2002, her belief was unreasonable as a matter of law. Roberts received disability payments from Mega's insurer for many months, and she admits in her deposition that she knew she would have been ineligible to receive disability benefits had she been terminated by Mega.