Opinion
Civil Action No. 3:02-CV-1525-K.
May 4, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant North Texas Tollway Authority's Motion for Summary Judgment. For the reasons stated below, the Court GRANTS Defendant's motion.
Background
Plaintiff Solomon Teffera ("Teffera"), a black male of Ethiopian origin, was employed by Defendant North Texas Tollway Authority ("NTTA"). At the time of Teffera's employment, NTTA had in effect certain policies and procedures compiled in a manual. One such policy was the Unauthorized Without Leave Pay Policy ("Policy"), which Teffera acknowledged receipt of and familiarity with by his written signature. Violations of the Policy include: (1) failure to arrive within thirty minutes of the employee's scheduled shift; (2) an employee's failure to call NTTA before the employee's shift begins to inform of late arrival; and (3) an employee leaving his scheduled shift early without his supervisor's permission. The Policy allows two violations within a twelve-month period. Teffera received two written warnings for: (1) failing to call to notify of his late arrival before his shift began on July 25, 2000, and (2) leaving work before his scheduled shift ended without his supervisor's permission on August 29, 2000. Teffera violated the Policy a third time on February 26, 2001, when he called in sick after his shift had already begun. NTTA states it was because of this third violation that Teffera was terminated. As a result of the termination, Teffera filed this suit.
Summary Judgment Standards
Summary judgement is appropriate when the pleadings, affidavits, and other summary judgment evidence show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 322-25. Once a movant makes a properly supported motion, the burden shifts to the nonmovant to show that summary judgment should not be granted; the nonmovant may not rest upon allegations in the pleadings, but must support the response to the motion with summary judgment evidence showing the existence of a genuine fact issue for trial. Id. at 321-25; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57 (1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Causes of Action
A. Title VII of the Civil Rights Act of 1964
Teffera contends he was discriminated against in violation of Title VII because of his disability and his national origin.
1. National Origin
Teffera claims NTTA discriminated against him because of his national origin, specifically his "linguistic characteristics."
To make out a prima facie case of racial discrimination under Title VII, a plaintiff must demonstrate: (1) he belongs to a protected group; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside of the protected class. Mason v. United Airlines, Inc., 274 F.3d 314, 318 (5th Cir. 2001).
NTTA concedes Teffera is a member of a protected group and he was discharged. However, Teffera fails to show that the termination was a result of his race or national origin. NTTA contends that Teffera was terminated for violating the Policy a third time in less a year. NTTA's evidence, which includes a showing that at least three other non-black employees were terminated for the same reason, establishes this.
Teffera also contends he was treated differently than other employees because he was assigned different work schedules and was followed by his supervisor on a daily basis. The Fifth Circuit stated that the purpose of Title VII was to address "ultimate employment decisions," not every decision of an employer which could have little, if any, effect on the "ultimate employment decisions." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.), cert. denied, 522 U.S. 932 (1997) (citing Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)). These ultimate decisions include such actions as "hiring, granting leave, discharging, promoting, and compensating." Id. Even acts such as documented reprimands, verbal threats of being fired, and placement on "final warning" do not constitute ultimate employment actions. Id. at 708. Teffera's claims of discriminatory treatment, being given different work schedules and being followed daily by his supervisor, do not fall into the category of employment decisions the Fifth Circuit concluded Title VII addressed. See id. at 707. These claims clearly do not involve ultimate employment decisions.
2. Disability
Teffera argues that NTTA discriminated against him in violation of Title VII on the basis of the following disabilities: job-related stress, depression, anxiety, and hypertension. Teffera makes no reference to the American with Disabilities Act ("ADA"). Title VII does not allow for a cause of action for disability discrimination. See 42 U.S.C. § 20003-2(a)(2). Therefore, Teffera has not alleged a viable Title VII for disability discrimination.
Therefore, summary judgment should be granted on Teffera's Title VII claims.
B. American with Disabilities Act ("ADA")
Teffera argues that NTTA discriminated against him in violation of the ADA on the basis of the following disabilities: job-related stress, depression, anxiety, and hypertension. On the EEOC charge of discrimination form, Teffera failed to check the "Disability" box for cause of discrimination. However, in noting the particulars of his charge, Teffera noted that he was "preceived [sic] as having a disability, in violation of . . . The Americans With Disabilities Act of 1990."
To succeed in making a claim under the American with Disabilities Act, a plaintiff must make a prima facie showing that: (1) he is disabled; (2) he is qualified for the position in which he seeks employment; and (3) he suffered an adverse employment action because of his disability. Robertson v. Neuromedical Ctr, 161 F.3d 292, 294 (5th Cir. 1998). A "disability" is defined 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 an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). A "qualified individual with a disability" is defined as "an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). A determination of a person's disability is done on a case-by-case basis. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999). The ADA does not prohibit adverse action due to a consequence of a disability, such as being unable to report to work regularly or to perform essential job duties as a result of an injury or illness. See Rogers v. International Marine Terminals, 87 F.3d 755, 759-60 (5th Cir. 1996).
1. Disability a. Limitation on Major Life Activities
To qualify as disabled under section 12102(2)(A), Teffera must prove: (1) he has a physical or mental impairment; (2) the impairment limits a major life activity; and (3) the limitation on the major life activity is substantial. See 42 U.S.C. § 12102(2)(A). Having a physical impairment alone does not necessarily mean that the individual has a disability under the ADA. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995). The Fifth Circuit has held specifically that hypertension alone does not meet the definition of disabled under the ADA. Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir. 1996).
The Equal Employment Opportunity Commission, the agency with authority to carry out certain ADA provisions, defined "major life activity" to include "caring for oneself, performing a manual task, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(j); see Dutcher, 53 F.3d at 726 (major life activity is function such as caring for oneself, talking, walking, and working). Considerations in determining whether a "major life activity" is "substantially limited" are: (1) the nature and severity of the impairment; (2) the duration or anticipated duration of the impairment; and (3) whether the impairment is permanent, anticipated to be permanent, and any long-term effect. 29 C.F.R. § 1630.2(j). Although "working" is considered a major life activity, this does not mean working at a job of one's choice. Bridges v. City of Bossier, 92 F.3d 329, 335 (5th Cir. 1996).
To meet his burden, Teffera must show that his hypertension, stress, depression, and anxiety were severe enough to substantially limit one or more major life activities and that he had a disability at the time of the termination. A physical impairment, standing alone, is not necessarily a disability. See Toyota Motor Mfg., 534 U.S. at 195; Dutcher, 53 F.3d at 726. Specifically, hypertension alone, without evidence of it substantially affecting one or more major life activity, does not put Teffera within the definition of disabled under the ADA. See Oswalt, 74 F.3d at 92. Teffera asserts that he suffers from hypertension, stress, depression, and anxiety. However, in his complaint, that is all he asserts. He fails to provide evidence that his stress and hypertension do indeed limit a major life activity and also fails to even allege these conditions affect one or more major life activity. Teffera also failed to address this issue in his response to NTTA's summary judgment motion.
b. Record of Impairment
Having a record of an impairment that substantially limits a major life activity does qualify a person as being disabled. 42 U.S.C. § 12102(2)(B). However, Teffera fails to present any evidence establishing a record of the impairment. It was his burden to indicate to the Court in his response what evidence established this allegation. See Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (party opposing summary judgment required to identify specific evidence in record and articulate exact way it supports his claim). Teffera failed to even address this argument in his response, let alone meet his burden. Consequently, Teffera has failed to establish a record of an impairment.
c. Regarded as Disabled
Section 12102(2)(C) provides that a person is disabled if he is regarded as having an impairment that substantially limits one or more major life activity. 29 U.S.C. § 12102(2)(C). A person may qualify under this definition if: (1) a covered entity mistakenly believes a person has an impairment that substantially limits one or more major life activities; or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. Sutton, 527 U.S. at 489. A "covered entity" is an employer, employment agency, labor organization, or joint labor-management committee. 29 U.S.C. § 12111(2). The crux of this definition is that the covered entity had mistaken beliefs about the person. Sutton, 527 U.S. at 489. An employer is entitled to conclude that (1) an individual's certain physical attribute or medical condition, which cannot be considered an impairment, is more desirable than others, and (2) an individual's certain limiting, although not substantially limiting, impairment make him ill-suited for a job. Id. at 491.
Teffera alleged in the EEOC charge of discrimination that he was "preceived [sic]" as being disabled. Yet, there is nothing in his complaint and a complete lack of any summary judgment evidence, let alone competent summary judgment evidence, that NTTA regarded him as disabled. Teffera again completely failed to respond to this argument at all. Teffera has failed to establish NTTA regarded him as disabled.
2. Qualified Individual
The Court assumes without deciding that Teffera was qualified for the position.
3. Suffered Adverse Employment Action
Even if Teffera had successfully established that he suffered from a disability as defined in the ADA (which the Court does not find he did), he failed to show he was disabled at the time NTTA terminated him. In September 2000, pursuant to the Family Medical Leave Act, Teffera took a leave of absence because he was suffering from stress and depression. On November 29, 2000, Teffera's physician, Samuel A. Piga, M.D., stated that upon re-evaluation, Teffera was recovered from stress syndrome presenting as essential hypertension and anxiety-depression. Dr. Piga further released Teffera to his regular duties. At the time of Teffera's termination in February 2001, Teffera had been released from his doctor as having recovered. Furthermore, Teffera represented to the Social Security Administration in a request for disability benefits that he was unable to work because of his illness or condition on June 27, 2001, four months after his termination. The evidence clearly establishes that when Teffera was terminated from his employment at NTTA in February 2001, he was not disabled. See Lottinger, 143 F. Supp.2d at 761 (plaintiff must prove he was disabled at the time of the termination or discriminatory act).
Teffera was not disabled as he failed to establish he had an impairment that substantially limited one or more major life activities. Furthermore, even if disabled under the definition of the ADA, Teffera failed to show he was disabled when NTTA terminated him. Consequently, summary judgment should be granted as to Teffera's ADA claim.
Teffera claims the NTTA violated section 1981 when it discriminated against him because of his race.
The Fifth Circuit held that the elements to establish a prima facie case in a Section 1981 claim are identical to the elements of a Title VII claim. Anderson v. Douglas Lomason Co., 26 F.3d 1277, 1284 (5th Cir. 1994). Because the same analysis is used as in the Title VII claim, Teffera has failed to show under section 1981 that his termination was the result of his race or national origin. Therefore, summary judgment is likewise appropriate in his Section 1981 claim.
D. Retaliation Claim
Teffera also contends NTTA terminated him due to his complaints about unlawful employment practices because of Teffera's national origin and disability.
Unless the plaintiff has first sought administrative relief from the Equal Employment Opportunity Commission ("EEOC") or a comparable state agency, a federal court may not maintain a Title VII action. Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994). The purpose of such requirement is to provide the employer with an opportunity to resolve the employee's complaints through voluntary compliance before the employee may resort to the court system and litigation. Patterson v. MacLean Credit Union, 491 U.S. 164, 180-81 (1989). As a condition precedent, the employee may bring an action in federal court claiming employment discrimination only after exhausting all of his administrative remedies and then obtaining a right-to-sue letter from the EEOC. See id. at 180; Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970). The civil complaint may include any claims of discrimination that are reasonably related to or could be expected to grow out of an investigation of the allegations contained in the EEOC discrimination charge. Nat'l Ass'n of Gov't Employees, 40 F.3d at 711.
In Teffera's EEOC charge, he alleges that he was discriminated against because of his national origin and being perceived as having a disability. On the charge form, Teffera checked the box labeled "National Origin," while leaving all other boxes, including the box labeled "Retaliation" unchecked. Nowhere in his charge does Teffera allege he has been retaliated against or harassed because he complained about unlawful employment practices based on his national origin and disability, as stated in Teffera's complaint. None of the facts alleged in his EEOC charge indicates that Teffera is complaining of retaliation, nor do his allegations support additional claims of retaliation. Thus, Teffera's claims of national origin and disability discrimination are separate and distinct from his claims of retaliation. See Nat'l Ass'n of Gov't Employees, 40 F.3d at 711. Because he set forth only allegations of national origin and disability discrimination in his EEOC charge, he is precluded from maintaining additional claims of retaliation in the instant lawsuit. See Patterson, 491 U.S. at 180-81; Sanchez, 431 F.2d at 460. Summary judgment should be granted with relation to the retaliation claim.
IV. Conclusion
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED. This case is DISMISSED WITH PREJUDICE.
SO ORDERED.