McConathy v. Dr Pepper Seven-Up ( 1998 )

United States Court of Appeals,
Fifth Circuit.
No. 97-10037.
Marge J. McCONATHY, Plaintiff-Appellant,
v.
DR. PEPPER/SEVEN UP CORPORATION, Defendant-Appellee.
Jan. 7, 1998.
Appeal from the United States District Court for the Northern
District of Texas.
Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.
PER CURIAM:
This is an appeal from a decision of the United States
District Court for the Northern District of Texas, Judge Robert B.
Maloney, presiding. In this case, Judge Maloney granted summary
judgment in favor of the Defendant-Appellee, the Dr. Pepper/Seven-
Up Corporation ("Dr. Pepper"). The Plaintiff-Appellant, Marge J.
McConathy ("McConathy") timely appealed, and the matter now lies
before this panel.
Background
Marge J. McConathy was employed as a benefit manager for Dr.
Pepper from January 1990 to July 1993. During this time, McConathy
received one formal evaluation of her job performance, in which her
performance was rated as "satisfactory or fully satisfactory."
McConathy suffers from a disease of the jaw known as
temporomandibular joint disease, and related complications.
McConathy underwent jaw surgery three times in 1991 because of this
condition. As a result, she missed approximately twenty-five days
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of work, all of which were covered by sick leave or vacation time.
McConathy underwent jaw surgery again in September of 1992, in
connection with complications regarding an emergency hysterectomy.
McConathy alleges that her supervisor at Dr. Pepper, Colin
Quigley ("Quigley"), was not very supportive of her during this
time. McConathy states that when she approached Quigley regarding
the additional surgery, he became angry, and told her that she
"better get well this time," and that he would "no longer tolerate
her health problems." He also allegedly complained to McConathy
that it was inappropriate for her to make such extensive use of Dr.
Pepper's health benefits, because of her position as benefits
manager. Quigley has acknowledged that he knew of her medical
condition.
When McConathy returned from the 1992 surgery, Quigley
allegedly pressured her to return to work before she fully
recovered, and ordered her to take a business trip to St. Louis
over her protest that she was still in pain from the surgery.
Further, Quigley allegedly told McConathy's staff to cease
communication with her regarding various business projects under
her supervision. Quigley also allegedly excluded McConathy from
business meetings, transferred assignments away from her, and
refused to acknowledge her presence when she was with him.
To make matters worse, on June 22, 1993, a screw placed in
McConathy's jaw during a previous surgery came loose. Her
physician advised her to go into surgery immediately and that her
recovery time would be approximately two weeks. McConathy states
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that she tried to inform Quigley about the need for this surgery,
but he ignored her, and as a result, she deferred having the
surgery.
McConathy was fired on July 2, 1993, because (according to Dr.
Pepper) the corporation was reorganizing her department. McConathy
and a secretary were fired, and another person was hired to fill
her position. Dr. Pepper has stated that the reason for this was
because it abolished the position of benefits manager and needed an
accountant in that section to ascertain the proper allocation of
funds from 401(k) plans.1 McConathy claims that Quigley was aware
of her medical condition at the time she was fired, and that he was
aware she might be eligible for disability payments or
accommodations such as a lighter duty assignment. She also claims
that in addition to Quigley, Dr. Pepper's staff psychologist,
Quigley's supervisor, and Dr. Pepper's Chief Financial Officer were
also aware of her condition. McConathy claims that a result of her
termination, she lost her medical insurance, stock options, and has
suffered emotional distress.
In September of 1995, McConathy filed for disability benefits
with the Social Security Administration ("SSA"). In this
application ("the SSA application"), McConathy stated that she was
suffering from chronic pain and did not see how she could hold any
position even on a part-time basis.
McConathy filed suit against Dr. Pepper in state court,
1
It should be noted that Dr. Pepper did not cite any summary
judgment evidence in favor of this assertion, however.
3
asserting causes of action of intentional infliction of emotional
distress and violation of Texas public policy. She later amended
her petition to include claims of harassment, discriminatory
discharge, and failure to accommodate under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213.2 She sought
compensatory and punitive damages. Dr. Pepper removed the case to
federal court.
Dr. Pepper moved for summary judgment, and this was granted in
an order by Judge Maloney dated December 18, 1996.3 All of
McConathy's claims were dismissed with prejudice. The decision
stated that McConathy's hostile environment harassment claim was
dismissed sua sponte, and that the discriminatory discharge and
failure to accommodate claims were dismissed on the basis of
judicial estoppel, in that the information given in the SSA
application was inconsistent with her claims, and hence, the claims
were dismissed.
McConathy filed for an appeal, on the basis that the district
court erred in its decision to grant summary judgment in favor of
Dr. Pepper. Specifically, McConathy attacks the district court's
use of the doctrine of judicial estoppel as a basis for throwing
out her central ADA claims. We do not find error in the district
court's decision, and we therefore AFFIRM its decision.
2
The ADA claims were based on charges filed with the Equal
Employment Opportunity Commission ("EEOC"). According to Dr.
Pepper, the EEOC issued McConathy a right to sue letter, but did
not make a determination on her claims.
3
It must be noted that the district court's decision was a bit
unclear as to the basis for its decision on all the claims.
4
Standard of Review
This Court reviews the grant of summary judgment de novo,
applying the same criteria used by the district court. Texas
Medical Ass'n v. Aetna Life Ins. Co., 80 F.3d 153, 156 (5th
Cir.1996). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law." FED.R.CIV.P. 56(c).
Similarly, this Court reviews a dismissal on the pleadings de
novo, applying the same standard as the district court. Truman v.
United States, 26 F.3d 592, 593 (5th Cir.1994). "Accordingly, we
accept the well-pleaded allegations in the complaint as true, and
we construe those allegations in the light most favorable to the
plaintiff." Id. at 594. Dismissal is appropriate "only if it
appears that no relief could be granted under any set of facts that
could be proven consistent with the allegations." Rubinstein v.
Collins, 20 F.3d 160, 166 (5th Cir.1994)(internal quotation marks
omitted).
Analysis
McConathy claims that the district court's decision to dismiss
her claims of discriminatory discharge and failure to accommodate
on the basis of judicial estoppel was in error. She states that
judicial estoppel was inappropriate here. She further states that
even if it was appropriate to apply judicial estoppel in this case,
the document upon which judicial estoppel was based, the SSA
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application, was not sufficiently authenticated to be worthy of use
in this situation. If McConathy is correct on one of these two
claims, she prevails. We do not think McConathy is correct on
either claim, however.
The district court was not procedurally forbidden from
entering summary judgment on the basis of judicial estoppel.
Federal Rule of Civil Procedure 8(c) states that "a party shall set
forth affirmatively ... estoppel ... and any other matter
constituting an avoidance or an affirmative defense." FED.R.CIV.P.
8(c). It is true that this Court has stated that a defendant is
supposed to raise an affirmative defense as a basis for summary
judgment when the motion for summary judgment is in the initial
pleading tendered by the defendant. Funding Sys. Leasing Corp. v.
Pugh, 530 F.2d 91, 96 (5th Cir.1976). However, where "the matter
is raised by the trial court that does not result in unfair
surprise, technical failure to comply precisely with Rule 8(c) is
not fatal," and in such a situation a court may hold that the
defense was not waived. Lucas v. United States, 807 F.2d 414, 417
(5th Cir.1986); see also Allied Chemical Corp. v. Mackay, 695 F.2d
854, 855-856 (5th Cir.1983); United States v. Shanbaum, 10 F.3d
305, 312 (5th Cir.1994). McConathy does not argue that she was
prejudiced by Dr. Pepper's failure to formally plead judicial
estoppel in its answer, and we do not believe that such prejudice
occurred. Therefore, the district court did not err in applying
the doctrine of judicial estoppel as the basis for its grant of
summary judgment.
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McConathy further claims that even if it was appropriate to
apply judicial estoppel, the SSA application was not properly
authenticated, and hence, inadmissible. We disagree, and believe
that the SSA application was admissible. "The requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what the proponent claims."
FED.R.EVID. 901(a). This circuit does not require conclusive proof
of authenticity, and the district court's decision is reviewed for
abuse of discretion. U.S. v. Jimenez Lopez, 873 F.2d 769, 772 (5th
Cir.1989); U.S. v. Scurlock, 52 F.3d 531, 538 (5th Cir.1995).
The district court based its conclusion that the SSA
application was properly authenticated on the basis that (1)
McConathy produced the document in response to a discovery request,
(2) the document bore her signature, (3) she did not claim that the
document is not authentic or that her signature is a forgery, and
(4) she acknowledged in her response to Dr. Pepper's motion for
summary judgment that she requested total disability benefits for
certain time periods. This is a sufficient basis for the district
court's decision, and we find no abuse of discretion. The fact
that it appears that Dr. Pepper provided no affidavit from its
counsel that the document was actually produced by McConathy is not
enough to create reversible error.
This Court has held that "the application for or the receipt
of social security disability benefits creates a rebuttable
presumption that the claimant or recipient of such benefits is
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judicially estopped from asserting that he is a "qualified
individual with a disability.' " Cleveland v. Policy Management
Sys., 120 F.3d 513, 518 (5th Cir.1997). McConathy did not offer
any credible summary judgment evidence indicating that, at the time
of her termination, she was otherwise qualified to continue her
duties at Dr. Pepper. Her statements in the SSA application say
that she couldn't "see how she could hold a management position or
any position even on a part-time basis." The statements in the SSA
application create a presumption that McConathy is not a qualified
person with a disability, and she has not provided evidence to
rebut this presumption, and hence she is estopped from making such
a claim.
McConathy attempts to prevent application of judicial estoppel
based on the SSA application by claiming that the Supreme Court's
holding in McKennon v. Nashville Banner Publishing Co., 513 U.S.
352, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995), precludes such an
application of judicial estoppel. In that case, the Supreme Court
held that after-acquired evidence that showed an employee would be
fired anyway did not preclude recovery under the Age Discrimination
in Employment Act. Id. The situation is different here. According
to McConathy, McKennon indicates that after-acquired evidence
cannot be used to estop McConathy from arguing that an adverse
employment decision was made because of her disability. See Id. at
356-60, 115 S.Ct. at 884-85. However, her statements are being
used in this case in relation to her job qualifications, a matter
which has nothing to do with the motivation behind her employer's
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action. McKennon involves the use of after-acquired evidence for
a different reason than here, and is therefore not on point.
McConathy also makes various claims about the alleged
inapplicability of judicial estoppel because it supposedly violates
the spirit of the ADA, is bad public policy, and that this case
involves perceived disability, which she claims is somehow subject
to different standards than real disability. McConathy is
basically throwing in everything but the kitchen sink with these
arguments, and these arguments are not reasons for reversible
error.
The next issue to be dealt with is whether the district court
erred in dismissing sua sponte McConathy's ADA hostile environment
harassment claim. First of all, it should be stated that this
circuit has never recognized an ADA claim based on hostile
environment harassment, though other courts have done so, or have
at least assumed the existence of such a cause of action. See
McClain v. Southwest Steel Co., 940 F. Supp. 295, 301-302
(N.D.Okla.1996); Gray v. Ameritech Corp., 937 F. Supp. 762, 771
(N.D.Ill.1996); Fritz v. Mascotech Automotive Sys. Group, 914
F. Supp. 1481, 1492 (E.D.Mich.1996); Henry v. Guest Serv., Inc.,
902 F. Supp. 245, 251-252 (D.D.C.1995), aff'd 98 F.3d 646
(D.C.Cir.1996); Haysman v. Food Lion, Inc., 893 F. Supp. 1092
(S.D.Ga.1995). In this case, we will proceed as though such a
cause of action exists. However, we wish to make it clear that we
do not pass on whether this circuit recognizes such a cause of
action. We do not feel this is the appropriate case to make such
9
a determination, and we merely will assume such a cause of action
exists for the sake of argument. This case should not be cited for
the proposition that the Fifth Circuit recognizes or rejects an ADA
cause of action based on hostile environment harassment.
That having been said, if we assume the existence of such a
cause of action, it would be modeled after the similar claim under
Title VII, in which a claimant must prove:
(1) that she belongs to a protected group; (2) that she was
subjected to unwelcome harassment; (3) that the harassment
complained of was based on her disability or disabilities;
(4) that the harassment complained of affected a term,
condition, or privilege of employment; and (5) that the
employer knew or should have known of the harassment and
failed to take prompt, remedial action.
Rio v. Runyon, 972 F. Supp. 1446, 1459 (S.D.Fla.1997)(citing Henson
v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir.1982), which
applied these factors to a hostile environment claim based on
sexual harassment). In order to be actionable on a hostile
environment theory, disability-based harassment, like sexual
harassment, would presumably have to "be sufficiently pervasive or
severe to alter the conditions of employment and create an abusive
working environment." Farpella-Crosby v. Horizon Health Care, 97
F.3d 803, 806 (5th Cir.1996).
McConathy has not alleged sufficiently pervasive
disability-based harassment so as to state a claim upon which
relief can be granted. Even if we assume everything she claims
about Quigley is true, his actions, while insensitive and rude,
would not be sufficient as a matter of law to state a claim of
hostile environment harassment. See DeAngelis v. El Paso Mun.
10
Police Officers Ass'n, 51 F.3d 591, 595-96 (5th Cir.1995), cert.
denied, --- U.S. ----, 116 S. Ct. 473, 133 L. Ed. 2d 403 (1995)(noting
that "mere utterance of an ... epithet which engenders offensive
feelings in an employee" is not enough to constitute hostile
environment harassment). It is a simple fact that in a workplace,
some workers will not get along with one another, and this Court
will not elevate a few harsh words or "cold-shouldering" to the
level of an actionable offense.
On a related note, McConathy's state claims of intentional
infliction of emotional distress also fail. In order to succeed on
this claim, McConathy must prove that her employer acted in a
manner that was extreme or outrageous. Wornick Co. v. Casas, 856
S.W.2d 732, 734 (Tex.1993). This conduct must be so extreme as to
go "beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community." Id.
(quoting Restatement (Second) of Torts § 46 cmt.d (1965)).
McConathy has not alleged or shown such conduct on the part of Dr.
Pepper or its employees. Even if Quigley was in fact generally
cruel, unfair, and threatened to fire her, this does not pass
muster as the type of utterly indecent, intolerable, and atrocious
behavior necessary to prevail on an intentional infliction of
emotional distress claim. See e.g.: Ramirez v. Allright Parking
El Paso, Inc., 970 F.2d 1372, 1375-1377 (5th Cir.1992); Guthrie v.
Tifco Indus., 941 F.2d 374, 379 (5th Cir.1991), cert. denied, 503
U.S. 908, 112 S. Ct. 1267, 117 L. Ed. 2d 495 (1992); Wilson v.
Monarch Paper Co., 939 F.2d 1138 (5th Cir.1991). While it is true
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that inter-office behavior can arise to the level of a tort of
intentional infliction of emotional distress, the standard for such
a claim is rather rigorous, and we will not lower that standard.
Conclusion
Based on the foregoing, we find no reversible error in the
decision of the district court to grant summary judgment in favor
of the Defendant-Appellee, Dr. Pepper. Therefore, we AFFIRM the
decision of the district court.
AFFIRMED.
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