Webster v. Texas Engineering ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-10604
Summary Calendar
_____________________
DAN M WEBSTER,
Plaintiff-Appellant,
v.
TEXAS ENGINEERING EXTENSION SERVICE,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
Docket No. 3:97-CV-2505-L
_________________________________________________________________
December 14, 1999
Before KING, Chief Judge, and JOLLY and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Dan M. Webster appeals the district
court’s entry of summary judgment in favor of Defendant-Appellee
Texas Engineering Extension Service. For the reasons stated
below, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-Appellant Dan M. Webster (“Webster”) filed this
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
action asserting violations of the Americans with Disabilities
Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”)
against Defendant-Appellee Texas Engineering Extension Services
(“TEEX”) after he was terminated from his position as an
instructor in TEEX’s Management and Leadership Development
Training Division. TEEX is a program affiliated with Texas A & M
University. It is headquartered in College Station, Texas but
has offices throughout the state. Webster’s division offered
classes to clients in both the public and private sectors. Those
classes covered management topics such as situational leadership,
customer service, time management, and team building.
Although TEEX is a state entity, it is responsible for
raising 90% of its operating budget. Funds were raised, in part,
by selling its instructional services. TEEX instructors,
including Webster, were responsible for signing-up new clients
and generating revenue. In 1996, TEEX began to encounter
substantial competition from private sector sources. In
response, TEEX implemented a number of measures in an attempt to
improve revenue and lower costs. Those measures included the
implementation of “financial objectives” for each instructor.
The objectives set a certain amount of revenue each instructor
was expected to generate.
In late May 1996 Webster and another instructor, Carl Schwab
(“Schwab”), met with the head of the division, Dr. Milton Radke
(“Radke”). Radke informed both men that they were not on track
to meet their financial projections and that their jobs would be
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eliminated if their performance failed to improve. By August
1996, neither Schwab nor Webster was meeting his projection, and
both men were placed on half-time status. TEEX’s revenue
continued to decline, and by December 1996 TEEX realized that a
reduction in workforce would be necessary to save the financially
struggling program.
In early January 1997 Webster told Radke that his
performance had improved and that he had met Radke’s requirement
of generating approximately $5,000 in business a month over the
last three months. Radke represented to Webster that, if this
was true, Webster would be returned to full-time status. Radke
later learned that Webster had misrepresented his progress.1
On January 16, 1997, Webster suffered a grand mal seizure.
After being transported to the hospital, Webster was diagnosed as
suffering from epilepsy. The January seizure was the first grand
mal seizure Webster had ever suffered, although previous episodes
of dizziness he had experienced were diagnosed as petit mal
seizures consistent with epilepsy. Webster was placed on anti-
convulsant medication, instructed not to drive for thirty days,
and discharged from the hospital the same day. Webster’s doctor
also recommended that he not work near water, in high places, or
be the sole caretaker of children. Although Webster was unable
to drive, he informed Radke that he would work from home. During
1
It appears that while Webster did generate over $15,000 in
business in three months, he did not consistently generate
$5,000+ a month for three months. Rather, Webster generated $300
in October, $3,955 in November, and $10,836 in December.
3
the period between his seizure and his dismissal from TEEX,
Webster continued to work and had his wife or son-in-law drive
him when he needed to travel on business. On January 30, 1997,
Radke presented Webster with a letter stating that his position
was being eliminated and that he would no longer be employed by
TEEX.2 Since being terminated, Webster has apparently not
suffered another grand mal seizure though he has continued to
experience petit mal seizures as evidenced though periodic
episodes of dizziness.
After Webster was discharged, Schwab, who earned a lower
salary than Webster and was expected to generate more revenue,
was returned to full-time status. Despite these cost-saving
measures the division continued to struggle financially. In
September 1997 Schwab and the remaining employees of TEEX’s
Management and Leadership Training Division were terminated and
the division was closed.
Webster’s complaint alleged that his termination violated
both the ADA and the ADEA. The district court granted summary
judgment in favor of TEEX on Webster’s ADA claim because it found
2
The precise date on which the decision was made to terminate
Webster is an issue of some debate. TEEX claims that it
performed evaluations of Webster, Schwab, and another TEEX
employee on January 10, 1996, and that Webster scored lowest on
these evaluations and was therefore terminated. Webster argues
that the decision to terminate him was not made until after his
seizure and that TEEX went back and created a paper trail to
cover-up its illegal discrimination. Because we find that
Webster has failed to establish he is disabled under the ADA, we
need not determine the precise date on which the decision to
terminate Webster was made.
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that Webster failed to show he is disabled. The court further
held that, even if Webster was disabled, he had failed to show
that the non-discriminatory reasons proffered by TEEX for
dismissing him were mere pretext for unlawful discrimination.
The district court also granted summary judgment in favor of
TEEX on Webster’s ADEA claim. The court found that, although
Webster made out a prima facie ADEA claim, TEEX had come forward
with legitimate, non-discriminatory reasons for dismissing him.
The court found that Webster failed to set forth any “discrete
facts” showing a causal nexus between his age and TEEX’s decision
to dismiss him. Because Webster had failed to raise any genuine
issues of material fact regarding his termination, the court
granted summary judgment in favor of TEEX.
DISCUSSION
This court reviews a grant of summary judgment de novo,
applying the same standards as the court below. See Matagorda
County v. Law, 19 F.3d 215, 217 (5th Cir. 1994). Summary
judgment is proper when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
Fed.R.Civ.P. 56(c). A dispute regarding a material fact is
“genuine” if the evidence is such that a reasonable jury could
find in favor of the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). If the moving party meets
the initial burden of establishing that there is no genuine
5
issue, the burden shifts to the nonmoving party to produce
evidence of the existence of a genuine issue for trial. See
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc). The nonmovant cannot satisfy his summary judgment
burden with conclusory allegations, unsubstantiated assertions,
or mere scintillas of evidence. See id.
Viewing all inferences in a light most favorable to Webster,
as we must under Matsushita Electrical Industries Company v.
Zenith Radio, 475 U.S. 574 587 (1986), we find that he has not
presented any genuine issues of material fact. As will be
discussed below, we find that Webster has failed to present a
prima facie ADA claim because he can not show that he is
disabled. And while Webster has presented a prima facie ADEA
claim, he has failed to demonstrate that TEEX’s proffered
legitimate, non-discriminatory reasons for terminating him were
mere pretext for unlawful discrimination. We address each of
Webster’s claims in turn.
1. Webster’s ADA Claim
Webster alleges that TEEX violated the ADA when it
terminated him. To establish a prima facie case under the ADA,
Webster must show that: 1) he is disabled as defined by the ADA,
2) he is otherwise qualified for the job, and 3) he was fired
because of his disability. See Talk v. Delta Airlines, Inc., 165
F.3d 1021, 1024 (5th Cir. 1999). A person is disabled under the
ADA if they 1) have a physical or mental impairment that
6
substantially limits one or more major life activities, or 2)
have record of such impairment, or 3) are regarded as having such
an impairment. 42 U.S.C. §12102(2). Webster argues that he has
an impairment that substantially limits a major life activity and
that TEEX regarded him as having such an impairment.
a. Does Webster Have an Impairment that Substantially Limits
a Major Life Activity?
TEEX concedes that Wester’s epilepsy constitutes a physical
impairment. The debate between the parties revolves around
whether this impairment substantially limits a major life
activity. Major life activities can include “functions such as
caring for onself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.” 29 C.F.R.
§ 1630.2(i). A person is “substantially limited” if they are
unable to perform a major life activity that can be performed by
the average person in the general population or they are
significantly restricted as to the time, place, condition,
duration, or manner under which they can perform the activity.
See 29 C.F.R. § 1630.2(j)(1). Webster claims that his epilepsy
substantially limits him in the major life activity of working.
A person is substantially limited in the major life activity
of working if they are unable 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.
The inability to perform a single, particular job does not
7
constitute a substantial limitation in the major life activity of
working.” Talk 165 F.3d at 1025 (citing 29 C.F.R. §
1630.2(j)(3)(i)). We agree with the district court that Webster
has failed to show that he is substantially limited in the major
life activity of working.
The affidavit submitted by Webster’s doctor indicated that
Webster was able to work as a management trainer for TEEX. The
only restrictions placed on Webster (no working in high places,
near water, or with children) exclude him only from a narrow
category of jobs and do not render him unable to work. Webster
admitted that he was able to, and did, work after having the
seizure. Moreover, the four-week prohibition from driving did
not impair Webster’s ability to work. We have noted in cases
dealing with the Rehabilitation Act, see 28 U.S.C. §701,3 that
the law contemplates an impairment “of a continuing nature,” and
not simply a temporary restriction. Evans v. City of Dallas, 861
F.2d 846, 853 (5th Cir. 1988) (citations omitted). Therefore, we
decline to consider Webster’s four-week driving prohibition when
determining whether he is substantially limited in the major life
activity of working. Webster has failed to set forth any
evidence showing that he is substantially limited in the major
3
The definition of an individual with a disability under the
ADA is identical to the Rehabilitation Act’s definition of an
individual with a “handicap.” Compare 42 U.S.C. § 12102 with 29
U.S.C. §706(8)(B). The Rehabilitation Act is regarded as the
predecessor to the ADA and cases interpreting it are considered
relevant in ADA cases. See Zenor v. El Paso Healthcare Sys.,
Ltd., 176 F.3d 847, 854 n.2 (5th Cir. 1999).
8
life activity of working.
b. Was Webster Regarded by TEEX as Having an Impairment that
Substantially Limits a Major Life Activity?
Webster also alleges that officials at TEEX regarded him as
having a physical impairment that substantially limited a major
life activity and therefore he was disabled as defined by the
ADA. Webster fails to present evidence showing that TEEX
regarded him as disabled. The Supreme Court has recently stated
that there are two ways an individual “may fall within this
statutory definition: (1) a covered entity mistakenly believes
that a person has a physical 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
v. United Air Lines, Inc. 119 S. Ct. 2139, 2149-50 (1999).
Webster has failed to submit evidence that raises a factual
question regarding TEEX’s perception of Webster’s impairment.
Webster admits that he never told any of his co-workers about his
petit mal seizures (the dizzy spells), and he presents no
evidence indicating that anyone at TEEX who had the authority to
make employment decisions was aware of Webster’s condition prior
to his grand mal seizure.
Webster claims that Radke was aware that Webster had
suffered a grand mal seizure within two days after it occurred.
Viewing Webster’s allegation as true, this still fails to raise a
9
fact question as to whether Radke regarded Webster as
substantially limited in working. The fact that Radke was aware
that Webster suffered a seizure, standing alone, does not show
that he believed Webster was substantially limited in his ability
to work.
The Supreme Court has held that for an employer to regard an
employee as substantially limited in a major life activity, and
thus disabled, “it is necessary that [the employer] entertain
misperceptions about the individual.” Sutton, 119 S. Ct. at
2150. The Court noted that these “misperceptions” oftentimes
“‘resul[t] from stereotypic assumptions not truly indicative
of...individual ability.’” Id. (citing 42 U.S.C. §2101(7)).
Webster has failed to come forward with any evidence indicating
that Radke, or TEEX, believed that Webster was unable to perform
his job because of his seizure. Webster’s evidence only
indicates that Radke knew Webster had suffered a seizure and that
Radke apparently allowed Webster to work at home, not that Radke
perceived him to be substantially limited in his ability to work.
We conclude that the district court correctly determined that
Webster failed to show he is disabled under the ADA.
2. Webster’s ADEA Claim.
To make a prima facie showing under the ADEA, Webster must
show that he was terminated from his job, that he was qualified
for his position, that he was over forty years old when he was
fired, and that he was replaced by someone younger. See Brown v.
10
CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996). TEEX admits
that Webster has made out a prima facie case under the ADEA.
Once Webster proved his prima facie case, he established a
rebuttable presumption that he was discriminated against by TEEX
because of his age. See Moore v. Eli Lilly & Co., 990 F.2d 812,
815 (5th Cir. 1993). This presumption can be rebutted by TEEX if
it can “articulate a legitimate, non-discriminatory reason” for
firing Webster. Id. TEEX may meet this burden by setting forth
evidence that, “if believed by the trier of fact would support a
finding that unlawful discrimination was not the cause of the
employment action.” Rhodes v. Guiberson Oil Tools, 75 F.3d 989,
993 (5th Cir. 1996) (en banc) (citing St. Mary’s Honor Center v.
Hicks, 509 U.S. 502 (1993)). If TEEX produces such evidence, the
burden is shifted back to Webster to show that TEEX’s stated
reasons are mere pretext for otherwise unlawful discrimination.
See Moore, 990 F.2d at 812.
We find that TEEX presented sufficient evidence showing that
its decision to terminate Webster was motivated by legitimate,
non-discriminatory reasons. To withstand a motion for summary
judgment after TEEX carries its burden, Webster must submit
evidence creating a genuine issue of fact concerning pretext.
See id. at 815. This proof must “consist of more than a mere
refutation of the employer’s legitimate nondiscriminatory reason”
but must offer “some proof that age motivated the employer’s
action.” Id. at 815-16 (citations omitted).
We agree with the district court that Webster failed to come
11
forward with evidence raising a genuine issue of fact concerning
pretext. TEEX raised a number of legitimate, non-discriminatory
reasons for dismissing Webster, including his poor performance
and the general financial strain on the division. Webster cost
more to employ, and generated less income for the division, than
other TEEX employees. Webster failed to present any evidence
demonstrating a causal nexus between his age and the decision to
terminate him. Webster asserts that TEEX’s proffered reasons for
dismissing him were pretext for unlawful discrimination, but he
offers no evidence in support of this proposition. Webster
merely argues that he was a better employee than Schwab and TEEX
should have chosen to terminate Schwab instead of him. “The ADEA
was not intended to be a vehicle for judicial second guessing of
employment decisions, nor was it intended to transform the courts
into personnel mangers.” Bienkowski v. American Airlines, Inc.,
851 F.2d 1503, 1507-08 (5th Cir. 1988) (citations omitted).
While Webster’s evidence may indicate that TEEX made an unwise
business decision in choosing to terminate him, rather than a
different employee, it does not demonstrate any causal links
between Webster’s age and TEEX’s decision.
CONCLUSION
Webster has failed to come forward with any genuine issues
of material fact. He is not disabled under the ADA and he failed
to introduce evidence showing that TEEX’s legitimate, non-
discriminatory reasons for terminating him were mere pretext for
12
unlawful age discrimination. For these reasons, the district
court was correct in granting TEEX’s motion for summary judgment
and we therefore AFFIRM.
13