Deason v. Duke Engy Trunkline ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30259
DOROTHY A. DEASON,
Plaintiff - Appellant,
VERSUS
DUKE ENERGY TRUNKLINE LNG; CMS ENERGY TRUNKLINE LNG,
Defendants - Appellees.
Appeal from the United States District Court
For the Western District of Louisiana, Lake Charles
99-CV-2110
March 20, 2002
Before ALDISERT1, DAVIS, and PARKER, Circuit Judges.
PER CURIAM*:
This is an appeal of the district court’s grant of summary
judgment on behalf of defendants Duke Energy/Trunkline LNG (“Duke”)
1
Circuit Judge of the Third Circuit Court of Appeals, sitting
by designation.
*
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this opinion should not be published and is not precedent except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.
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and CMS Energy/Trunkline LNG (“CMS”).
I. PROCEEDINGS IN THE DISTRICT COURT
Dorothy A. Deason (“Deason”) filed her original complaint in
the 14th Judicial Court of Calcasieu Parish, Louisiana, on October
20, 1999. She alleged that she had been illegally terminated
because of a disability, that she had been subjected to sexual
harassment and racial epithets by her employer and that her illegal
termination was retaliatory because of her harassment complaints
and for seeking long-term disability benefits. In addition, she
claimed that the defendants had intentionally inflicted emotional
distress upon her. She made all of her claims under various
Louisiana state statutes.
Duke and CMS removed the complaint to federal district court
on November 17, 1999, under 28 U.S.C. § 1332, federal diversity
jurisdiction. Deason filed a complaint dated November 9, 1999,
with the Equal Employment Opportunity Commission (“EEOC”) and the
Louisiana Commission on Human Rights, alleging employment
discrimination on the basis of disability (but not race). The EEOC
closed its file on December 14, 1999, because Deason’s “allegations
did not involve a disability that is covered by the Americans with
Disabilities Act.” The EEOC did issue a “right to sue” letter.
The district court granted Deason leave to file an amended
complaint, which she did on March 14, 2000, alleging her claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
2
et. seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12112, et. seq., and 42 U.S.C. § 1981. She retained her
retaliation and emotional distress claims under Louisiana state
law.
CMS and Duke moved, separately, for summary judgment. CMS
argued that there was no evidence that it was ever Deason’s
employer. Duke argued that Deason had not stated a claim under the
ADA, that her harassment complaints were proscribed, that her
retaliation claim had been abandoned and that she failed to
establish a claim of emotional distress. On January 23, 2001, the
district court entered a memorandum ruling which granted summary
judgment to both Duke and CMS.
II. BACKGROUND
Deason began work with Trunkline LNG, then a Duke division, in
March 1989. She rose from the position of Controller “C” to
Controller “A” while so employed.
On two occasions, Deason either discussed or complained of
having heard sexually oriented comments and racial epithets with
Duke’s Site Manager, David Cobb. Those occasions were in 1994 and
1996. The record is unclear whether any of the comments were
directed toward Deason herself. She does not assert that she took
any other action and has provided no supporting evidence.
On August 12, 1998, she underwent a hysterectomy and was not
released by her doctor to return to work until October 15, 1998.
3
Upon being released to return to work, Duke Energy required Deason
to undergo a Functional Capacity Evaluation (FCE) before resuming
her duties. While completing the FCE, Deason tore a rotator cuff,
which required surgery in November 1998 followed by physical
therapy. She was released to return to work in August 1999 with a
ten percent residual disability. From August 1998 to August 1999,
Deason received either short or long-term disability leave and
compensation as a Duke employee.
During this time, Duke and CMS entered negotiations for CMS to
purchase the Trunkline LNG operation from Duke. The impending sale
was announced to Duke’s employees and Deason was informed of the
sale in November 1998. One of the terms of the sale was that any
individual who was out on long-term disability at the time of the
sale would be retained by Duke and would not become a CMS employee.
The sale was completed in March 1999. Deason asserts she did not
learn of the exclusion clause and her status as a retained employee
until May 1999. She remained a Duke employee and continued to
receive long-term disability compensation and leave until she was
released to return to work in August 1999.
Upon Deason’s return, Duke offered her another job as an
offshore Utility Pipeliner at her Controller “A” rate of pay of $23
an hour although the Utility Pipeliner job normally paid less. She
refused that offer for two reasons: first, taking the job would
have required her to be separated from her terminally ill son for
4
up to three weeks at a time and, second, the job required training
in downed helicopter evacuation in the water and she did not swim.
She was offered a severance package in the alternative, which
amounted to a lump sum of $42,350. She refused that alternative as
well, and commenced this lawsuit. She alleged that Duke had
constructive knowledge of her personal situation which it knew
would preclude her from taking the job accommodation and that
Duke’s actions were aimed at her termination in retaliation for her
earlier complaints and for her disability claims. She further
alleged that CMS is liable as a successor employer.
Deason now appeals the district court’s ruling and raises five
issues on appeal: whether the district court erred by (1)
determining that she was neither disabled nor regarded as disabled
by Duke and CMS as defined by the ADA; (2) finding that the
alternative job offered by Duke was a reasonable accommodation
under the ADA; (3) determining that she had not suffered an adverse
employment action based on the exclusion clause in the terms of the
sale of the Trunkline LNG division from Duke to CMS; (4) finding
that CMS never employed her; and (5) finding that Duke did not
retaliate against her for her complaints of racial and sexual
harassment and disability discrimination under Louisiana Revised
Statute 51:2256, et. seq.
III. STANDARD OF REVIEW
This court conducts a de novo review of a grant of summary
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judgment, ensuring that no genuine issue of material fact exists
and that judgment in favor of the appellee was warranted as a
matter of law. See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th
Cir. 2000). Under Federal Rule of Civil Procedure 56(c), summary
judgment is appropriate when the evidence, viewed in the light most
favorable to the non-movant, reflects no genuine issues of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.
Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Hall v. Gillman, Inc.,
81 F.3d 35, 36-37 (5th Cir. 1996).
IV. ANALYSIS
In order to establish a prima facie case of discrimination
under the ADA, Deason must demonstrate that: (1) she has a
disability; (2) she is a qualified individual for the job in
question; and (3) that an adverse employment decision was made
solely because of her disability. See Still v. Freeport-McMoran,
Inc., 120 F.3d 50, 51 (5th Cir. 1997).
A. Disability
The parties dispute whether Deason’s rotator cuff injury2
2
Deason’s earlier hysterectomy, which first placed her on
either short or long-term disability status with Duke, is not the
subject of her disability claim here. She recovered fully from
that surgery. The only disability she asserts to be limiting under
the ADA is the residual disability from her rotator cuff surgery.
As a result of that surgery, she develops pain when working
overhead for an extended period of time and has a limited range of
motion behind her back, restricting, for example, her ability to
wash herself or to close a brassiere.
6
constituted an ADA disability, either while she was on long-term
disability or after she was medically released to return to duty
(albeit with a ten percent residual disability). The district
court applied the ADA’s definition of a “disability” under 42
U.S.C. § 12102(1)3 to determine that Deason’s rotator cuff
condition did not substantially limit any of her major life
activities. The district court also determined that Deason did not
have a record of being substantially limited in a major life
activity and was not regarded by Duke as being substantially
limited in a major life activity. Therefore, the district court
found that Deason failed to state a prima facie claim under the
ADA. Although we generally agree with the district court’s
“disability” determination, the rationale for this determination
needs to be further explained based upon Deason’s theory of the
case.4
Deason contends that the relevant date for determining whether
she was disabled for purposes of the ADA was the date of the
adverse employment action. In her view, the adverse employment
3
A disability under the ADA is (1) a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual; (2) a record of such impairment; or
(3) being regarded as having such impairment. 42 U.S.C. §
12102(1).
4
We agree with the district court’s reasons for finding that
Deason did not have a record of such impairment and was not
regarded as having such an impairment. Therefore, we will only
delve into whether Deason’s rotator cuff condition substantially
limited her in one or more of the major life activities.
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action occurred on March 29, 1999 when Duke sold its LNG Trunkline
Division to CMS. Therefore, whether or not she was substantially
limited in any major life activity, must be evaluated by looking to
her rotator cuff condition as it existed on March 29, 1999.
Deason correctly asserts that the “substantially limited”
inquiry5 must be made by looking to the nature and severity of the
condition as it existed at the time of the adverse employment
action, the parties’ expectations at the time of the adverse
employment action concerning whether the condition would improve or
fully heal, and the parties’ expectations at the time of the
adverse employment action concerning the long-term impact of the
condition. See Eber v. Harris County Hospital Dist., 130 F. Supp.
2d 847, 858 (S.D. Tex. 2001) (“[a]n ADA claimant must prove that he
was disabled at the time of the alleged discriminatory act”).
The district court reasoned that Deason had not made a prima
facie case of disability because: (1) her rotator cuff injury was
nearly completely healed by September 19996; and (2) Deason’s
doctor released her to go back to work without restrictions on
5
The EEOC regulations instruct that the following factors be
considered in determining whether an individual is substantially
limited in a major life activity: “[t]he nature and severity of the
impairment; [t]he duration or expected duration of the impairment;
and [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)(i)-(iii) (2001).
6
The district court noted that after completion of physical
therapy Deason still had a 10% residual disability which prevented
her from working over her head for extended periods of time.
8
August 24, 1999. Although the district court did not specifically
address how the parties’ viewed the rotator cuff impairment on
March 29, 1999, we find ample evidence in the record to suggest
that both parties believed in March 1999 that Deason would recover
from the rotator cuff condition and return to work at Duke.
Therefore, evaluating her alleged disability as of March 1999, we
still find that Deason did not make out a prima facie case of
disability.7
As would be expected when one undergoes shoulder surgery,
Deason still has lingering stiffness in the shoulder area and may
have difficulty working overhead for extended periods of time.
However, her own testimony indicates that the shoulder injury only
affects her ability to care for herself a little bit (she is
dependent on bra closure). As a matter of law, this type of slight
limitation does not substantially limit her in the major life
activity of caring for herself.
Neither can we accept Deason’s argument that being unable to
work for extended periods of time overhead makes her substantially
limited in the major life activities of performing manual tasks or
working. The United States Supreme Court’s most recent ADA
decision forecloses Deason’s “manual tasks” argument. See Toyota
7
Because we find that Deason has not raised a genuine issue
of material fact concerning whether she was disabled under the ADA,
the second, third, and fourth issues which she raises in this
appeal are moot and will not be addressed.
9
Motor Manufacturing Kentucky, Inc. v. Williams, 122 S. Ct. 681, 693
(2002)(repetitive work with hands and arms extended at or above
shoulder level for extended periods of time is not an important
part of most people’s daily lives and therefore is not sufficient
proof that an individual is substantially limited in performing
manual tasks).
Deason’s contention that she is substantially limited in the
major life activity of working is similarly unpersuasive under both
the EEOC regulations and our Circuit’s jurisprudence because,
despite her shoulder problem, she can still perform a class of jobs
or a broad range of jobs. See 29 C.F.R. § 1630.2(j)(3) (2001)(“With
respect to 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”); see also Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995)(“inability to
perform one aspect of a job while retaining the ability to perform
the work in general does not amount to substantial limitation of
the activity of working.”). Ray v. Glidden Co., 85 F.3d 227, 229
(5th Cir. 1996) (plaintiff’s inability to perform continuous heavy
lifting did not constitute a substantial limitation on a major life
activity); Pryor v. Trane Company, 138 F.3d 1024, 1027 (5th Cir.
1998) (upholding jury determination that individual who could not
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perform continuous lifting from shoulder to overhead and ability to
push and pull was below average was not substantially limited in a
major life activity). Indeed, Deason contends that she could have
performed her old Controller “A” job at Duke despite her shoulder
condition. Further, while she claims she could not have performed
the job offered to her by Duke in September 1999, the Utility
Pipeliner position, the reasons for her inability to do so are
unrelated to her shoulder condition.
B. Retaliation
Deason claims that Duke retaliated against her because she had
previously made discrimination complaints. She suggests that Duke
retaliated in three ways. First, Duke did not tell her about the
buyout provision until six weeks after the sale became final.
Second, Duke did not transfer her over to CMS at the time of sale.
Third, Duke did not provide COBRA benefits information to her in a
timely fashion.
Deason has abandoned any claim under Title VII but has couched
her retaliation claim under Louisiana anti-retaliation statutes.
The analysis of a retaliation claim following a complaint of sexual
harassment and the use of racial epithets is the same under
Louisiana law as it is under Title VII. See McMillon v. Corridan,
No. 97-3981, 1998 U.S. Dist. LEXIS 13958, at *8-9 (E.D. La. Aug.
31, 1998). To prevail on a claim of retaliation under Title VII
and hence Louisiana law, Deason must show that: (1) she engaged in
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a protected activity; (2) an adverse employment action occurred;
and (3) a causal connection existed between the protected activity
and the adverse employment action. Dollis v. Rubin, 77 F.3d 777,
781 (5th Cir. 1995).
In our view, Duke’s delays in informing Deason about the
buyout provision and sending her the COBRA benefits information do
not constitute an adverse employment action under our case law
because they do not concern “ultimate employment decisions.”
Dollis, 77 F.3d at 781-82. On the other hand, whether Duke’s
retaining of Deason pursuant to the exclusionary terms of the long-
term disability buyout provision and subsequent offer of a new
position to Deason at her former salary constitutes an adverse
employment action under our case law is less than crystal clear.
Fortunately, however, we need not decide this issue because,
irrespective of the adverse employment action prong, Deason has not
presented sufficient evidence on the “causal connection” prong to
survive summary judgment on her retaliation claim.8
8
At the prima facie stage, the proof required to raise a fact
issue on the “causal connection” prong is not as stringent as the
“but for” standard. Evans v. City of Houston, 246 F.3d 344, 354
(5th Cir. 2001). Applying this lesser standard, we still find that
Deason has not raised a fact issue on this final prong for two
reasons. First, a three year time gap exists between her
discrimination complaints and the alleged adverse employment
actions. There is no indication that Duke treated Deason unfairly
or attempted to retaliate against her during this three year
period. Second, the mere fact that Deason was the only employee
caught in the snares of the long-term disability buyout provision
does not lead to a reasonable inference that Duke devised the
provision to punish Deason for her past complaints.
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V. CONCLUSION
In sum, Deason has not raised a genuine issue of material fact
concerning whether she had an ADA disability. Neither has she
presented sufficient summary judgment evidence to raise a fact
issue concerning whether Duke retaliated against her for making
past discrimination complaints. Therefore, her ADA claims against
Duke and CMS and retaliation claim against Duke fail as a matter of
law. The judgment of the district court is hereby AFFIRMED in all
respects.
AFFIRMED.
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