Logan v. Pennaco Hosiery ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-60292
Summary Calendar
____________________
THOMAS LOGAN,
Plaintiff-Appellant,
v.
PENNACO HOSIERY, A Division of Danskin, Inc.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(3:97-CV-103-B-A)
_________________________________________________________________
March 23, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Thomas Logan appeals the district
court’s grant of summary judgment in favor of defendant-appellee
Pennaco Hosiery on Logan’s claim under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213. Because we conclude
that the district court relied upon improper summary judgment
*
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that this opinion should not be published and is not precedent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.
evidence in holding that Pennaco Hosiery was entitled to summary
judgment, we vacate the district court’s order granting summary
judgment and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Thomas Logan was employed by Pennaco Hosiery (Pennaco) as
the company’s Maintenance Service/Boiler. He suffered an
employment-related injury on September 4, 1994 when a heavy drum
of synthetic oil fell on his leg. Over the course of the next
year, Logan recovered slowly. Logan’s physician, Dr. Earnest
Lowe, concluded that Logan achieved maximum medical recovery from
his injury on May 23, 1995. Dr. Lowe gave Logan a permanent
partial impairment rating of 20% as to his lower extremities and
8% as to his person as a whole. According to Logan, “[h]e was
restricted by his physician from lifting or carrying [i]n excess
of 25 pounds1 and from standing or walking more than four (4)
hours in an eight (8) hour day.” Additionally, Logan indicates
that he “was restricted to occasionally climbing, balancing,
stooping and crouching, and could never kneel or crawl.” On
September 12, 1995, Pennaco terminated Logan because he had
exhausted his available medical leave.
On September 19, 1995, Logan filed a complaint against
Pennaco with the Equal Employment Opportunity Commission (EEOC),
1
Dr. Lowe testified during his deposition that Logan was
capable of lifting 50 pounds. However, it is unclear from the
record whether Logan became capable of lifting 50 pounds before
or after his discharge.
2
asserting that his termination violated the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. On February
16, 1996, the EEOC issued Logan a right-to-sue letter, and Logan
subsequently filed suit against Pennaco, alleging violations of
the ADA, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the United States Constitution,
and the Mississippi Constitution.
On October 25, 1996, Pennaco moved for partial summary
judgment, and the district court granted Pennaco’s motion,
dismissing all of Logan’s claims except his ADA claim. On
January 27, 1997, Pennaco moved for summary judgment on Logan’s
ADA claim, and the district court granted this motion as well.
Logan timely filed a notice of appeal. On appeal, he challenges
only the district court’s grant of summary judgment in favor of
Pennaco on his ADA claim.
II. STANDARD OF REVIEW
“We review a grant of summary judgment de novo, applying the
same criteria used by the district court in the first instance.”
Texas Manufactured Housing Ass’n v. City of Nederland, 101 F.3d
1095, 1099 (5th Cir. 1996), cert. denied, 117 S. Ct. 2497 (1997).
Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
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judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
III. DISCUSSION
In order to establish a prima facie claim under the ADA, a
claimant must prove that “(1) he has a disability; (2) he was
qualified for the job; and (3) an adverse employment decision was
made because of his disability.” Robinson v. Global Marine
Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996), cert. denied, 117
S. Ct. 1820 (1997). The district court granted summary judgment
in favor of Pennaco on Logan’s ADA claim because it concluded
that, as a matter of law, Logan was not qualified for the
Maintenance Service/Boiler position. An individual is qualified
for his job for purposes of the ADA if he can perform the
essential functions of the job either with or without reasonable
accommodation. See 42 U.S.C. § 12111(8); Turco v. Hoechst
Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996).
In an answer to an interrogatory posited by Pennaco, Logan
conceded that Pennaco’s written job description of the
Maintenance Service/Boiler position contained the essential
functions of his position. After commencement of the instant
litigation, Pennaco Hosiery had one of its employees, Susan
Alexander, prepare a Motion Analysis Summary, which purported to
describe the type and degree of physical exertion required to
perform the duties listed in Pennaco’s written job description
4
for the Maintenance Service/Boiler position. The Motion Analysis
Summary provides the following general description of the
Maintenance Service/Boiler position:
[T]he operator is required to be continuously walking
99% of 8 hour work day. During this time variations in
bending, reaching, climbing, pushing and pulling and
lifting will also occur. Standing in one place may
occur at some job sites but use of upper body will
occur (bending, reaching, lifting). Walking distance
will exceed 5 miles daily and in most cases not more
than 10 miles in 8 hour work day. Sitting is very
limited, usually to driving distance which is
approximately 1% of daily duties. Over a period of
four 40 hour weeks the operator is continuously walking
98.3% of the time, while he may sit to drive 1.7% of
the time.
The Motion Analysis Summary also describes many of the duties
listed in the written job description as requiring the employee
to lift up to 100 pounds.
Pennaco submitted the Motion Analysis Summary as an
attachment to a declaration by Alexander. Alexander’s
declaration states that she “formulated the study based on job
descriptions of the position, interviews with the employee
currently holding the position, Kevin Carpenter, interviews with
the Maintenance Department Manager[,] Larry Taylor, and hours of
observing Kevin Carpenter performing his duties.”
Based in large part on the Motion Analysis Summary, the
district court concluded that, as a matter of law, Logan was not
qualified to perform duties associated with the Maintenance
Service/Boiler position at Pennaco. Specifically, the district
court found that Logan had offered no summary judgment evidence
5
contravening the Motion Analysis Summary’s conclusion that
performance of the duties of the Maintenance Service/Boiler
position required the employee to spend approximately 98% of each
day on his feet as well as frequently climb and bend. The
district court thus concluded that, as a matter of law, Logan was
not qualified for his former position because he could not
perform the physical requirements articulated in the Motion
Analysis Summary without substantial violation of his medical
restrictions.2
Logan argues that the district court erred in denying his
2
The district court also noted that performance of the
duties of the Maintenance Service/Boiler position required
periodic heavy lifting. Specifically, it noted that the employee
occupying the position was required to carry 50-pound bags of
salt from a storage facility to the boiler room and pour them
into the water system, tilt 700-pound drums of synthetic oil so
that they could be emptied into one-gallon containers, and move
200-pound barrels of sulfuric acid from the storage facility to
the boiler room. The district court acknowledged that Logan had
indicated that he could perform these functions with reasonable
accommodation. Specifically, he claimed that he could use a
hand-held pump to transfer oil from the 700-pound drums, thereby
eliminating the necessity of tilting the drums, and that he could
transport the salt if Pennaco bought smaller bags or allowed him
to pour the salt into smaller containers before transporting it.
In his deposition and affidavit, Logan stated that only one
barrel of sulfuric acid needed to be moved every day or two and
that the timing of moving the barrels was not critical. He
therefore argued that another employee could move the barrels of
sulfuric acid. Because the district court concluded that medical
restrictions on the time Logan may spend on his feet and
restrictions on his ability to climb and bend precluded him from
being qualified for the Maintenance Service/Boiler position, the
court did not specifically address the reasonableness of the
accommodations that Logan suggested would allow him to perform
the essential functions of the position without the necessity of
heavy lifting.
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motion to strike Alexander’s declaration and the attached Motion
Analysis Summary on the grounds that (1) the declaration and
Motion Analysis Summary contain hearsay that Pennaco has not
demonstrated falls within any exception to the general rule
barring the admissibility of hearsay evidence and (2) Alexander’s
declaration does not establish that she is an expert qualified to
testify on the matters contained in the Motion Analysis Summary.
The district court rejected these arguments, concluding that the
contents of the Motion Analysis Summary did not constitute a
statement of expert opinion, but rather constituted nothing more
than a recitation of facts that Alexander personally observed.
The district court did not expressly address Logan’s hearsay
objection but did conclude that the contents of the Motion
Analysis Summary reflected Alexander’s personal knowledge.
In determining whether a moving party is entitled to summary
judgment, “only materials which were included in the pretrial
record and that would have been admissible evidence may be
considered.” Stults v. Conoco, Inc., 76 F.3d 651, 654-55 (5th
Cir. 1996). We review a district court’s determination that
information contained in the pretrial record is admissible
evidence, and thus proper summary judgment evidence, for an abuse
of discretion. See United States v. Torres, 114 F.3d 520, 526
(5th Cir.), cert. denied, 118 S. Ct. 316 (1997); Christophersen
v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir. 1991).
While not expressly addressing Logan’s contention that the
7
Motion Analysis Summary contained hearsay, the district court
implicitly rejected this argument by concluding that the Motion
Analysis Summary “merely recit[ed] facts that [Alexander]
observed.” However, Alexander’s declaration states that she
prepared the Motion Analysis Summary based upon observation of
Kevin Carpenter as he performed his Maintenance Service/Boiler
duties and based upon interviews with Carpenter and his
supervisor, Larry Taylor.
The statements made by Carpenter and Taylor to Alexander
during her interviews with them clearly constitute hearsay. See
FED. R. EVID. 801 (“‘Hearsay’ is a statement, other than one made
by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”).
Rule 602 of the Federal Rules of Evidence establishes that a
witness may testify only as to matters of which the witness has
personal knowledge. See FED. R. EVID. 602. This rule prohibits a
witness “from testifying to the subject matter of [a] hearsay
statement, as he has no personal knowledge of it.” Id. advisory
committee note; see also Rock v. Huffco Gas & Oil Co., 922 F.2d
272, 280 (5th Cir. 1991). Thus, to the extent that the Motion
Analysis Summary merely recounts what Taylor and Carpenter told
Alexander during their interviews--as opposed to what Alexander
actually observed during her observations of Carpenter--it is
inadmissible under the Federal Rules of Evidence and is therefore
not competent summary judgment evidence.
8
Pennaco bore the burden of proving that Alexander had
personal knowledge of the matters contained in the Motion
Analysis Summary. First Nat’l Bank of Louisville v. Lustig, 96
F.3d 1554, 1576 (5th Cir. 1996); United States v. Davis, 792 F.2d
1299, 1304 (5th Cir. 1986). It failed to meet this burden
because Alexander’s declaration provided the district court with
no way to determine what portions of the Motion Analysis Summary
were based upon Alexander’s personal observations of Carpenter
and what portions were based solely upon her interviews with
Carpenter and Taylor. The district court therefore abused its
discretion in considering the Motion Analysis Summary as
competent Summary Judgment evidence.3
IV. CONCLUSION
Because the Motion Analysis Summary played such a
substantial role in the district court’s determination that no
genuine issue of material fact existed as to whether Logan was
3
We recognize that expert opinion testimony based on
hearsay may be admissible. See FED. R. EVID. 703; United States
v. Gresham, 118 F.3d 258, 266 (5th Cir. 1997), cert. denied, 118
S. Ct. 702 (1998). However, as noted supra, the district court
expressly concluded that the contents of the Motion Analysis
Summary did not constitute expert opinion. Moreover, even if the
Motion Analysis Summary could be construed as an expression of
expert opinion rather than a mere recitation of facts of which a
lay witness would be capable, Pennaco has not established that
Alexander is qualified as an expert based on her “knowledge,
skill, experience, training, or education.” FED. R. EVID. 702.
Alexander’s declaration simply states that she is employed by
Pennaco as an “Engineering Analyst.” Without any further
description of her position or her education, Alexander’s
declaration is insufficient to establish her authority to offer
expert testimony on any subject.
9
qualified for the Maintenance Service/Boiler position, we VACATE
the district court’s order granting summary judgment in favor of
Pennaco on Logan’s ADA claim and REMAND to allow the district
court to determine in the first instance whether Pennaco is
nonetheless entitled to summary judgment based on those portions
of the pretrial record that constitute competent summary judgment
evidence. The district court is, of course, free to order
additional submissions from the parties on the propriety of
summary judgment, including affidavits or declarations more
clearly indicating what portions of the Motion Analysis Summary
are derived from Alexander’s personal knowledge.
VACATED and REMANDED. Costs shall be borne by Pennaco.
10