Opinion
CIVIL ACTION NO. 02-342, SECTION "K"(5)
May 1, 2003
ORDER AND REASONS
Before this Court is the Defendant, Lennox Industries, Inc.'s, (hereinafter "Lennox"), Motion For Summary Judgment (Rec. Doc. 16). For the following reasons, the Motion is hereby GRANTED in part and DENIED in part.
BACKGROUND
The plaintiff, Donna Bice, worked for Lennox Industries for 10 years from 1991 until Lennox teminated her employment on June 8, 2001. She began her employment in Mobile, Alabama as a counter salesperson and on July 1, 1999, Lennox promoted her to the position of Parts and Supply Manager, and Bice began working in the New Orleans office. A PSM's primary responsibility is to manage inventory and provide support to Territory Managers who are responsible for the total sales in a designated geographical region. The plaintiff's direct supervisor in New Orleans was Jeffery Odum, the New Orleans District Sales Manager. Initially, Bice was assigned to share a work area with the District Operations Manager, Jerry Ells. Ells and Bice occupied a small office on Airline Highway which had several desks and a phone line to share.
Lennox Industries is involved in manufacturing and sales of refrigeration and air conditioning products.
Soon after her arrival in the New Orleans office, Bice complained to Odum that her office environment was too loud and that she was having difficulty working to her maximum potential. Odum informed her that the situation was only temporary and that they were moving to a new building in Harahan, Louisiana, in approximately one year. In the meantime, from September 1999 to December 1999, he allowed Bice to move into a field consultant's office where she could close the door and was less distracted.
Around the same time, in September of 1999, Bice met with Dr. Duffourc who diagnosed the plaintiff with Attention Deficit Hyperactivity Disorder ("ADHD"). After her visit to Dr. Dufforc, Bice told Odum that she had been diagnosed with ADHD. In December of 1999, Odum allowed the plaintiff to work from home and soon after provided her, at the company's expense, with a business phone, fax machine, printer, computer and other home business equipment.
When the company finally switched offices, in March of 2001, Lennox contends that Odum told Bice that he preferred her to work at the office, and requested that she discontinue working at home. Lennox contends that the Harahan office had assigned Bice an office with a door.
Bice alleges that she complained about the administration of her office accommodations verbally in January 2001 and on February 14, 2001. She also maintains that she complained about the office conditions again, on March 26, 2001, after Lennox moved to a new facility, because she was assigned to an open work station instead of a private office.
Bice alleges that her work situation caused her to become depressed on May 31, 2001. She saw a psychiatrist who prescribed medication and advised her that she would not be able to return to work for approximately two weeks. On June 1, 2001, Bice's husband called Mr. Jeffreys, Odum's manager, and left a message that Bice would not be at work on that day. He also spoke with Lane Jeffreys, Odums supervisor and said that Bice would not be in for a few days. However, when Bice failed to report to work for five days, on June 8, Lennox sent her a notice immediately terminating her employment.
Bice brings the following claims against Lennox: 1) employment discrimination under ADA and Louisiana law and 2) retaliation under the ADA and Louisiana law.
In Bice's opposition she states that she does not "oppose partial dismissal of her ERISA claims and her gender discrimination claims." As a result, the Court will not address these claims.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment)." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits, Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
DISCUSSION
Bice alleges that Lennox discriminated against her based on her ADHD and depression, and denied her reasonable accommodations, in violation of the ADA. Additionally, she maintains that it retaliated against her in violation of the ADA, Louisiana law, and Title VII.
The parties have agreed that the actions under federal and Louisiana law are identical, except as they pertain to damages.
1. ADA Employment Discrimination Claim
Under the ADA, an employer "shall not discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees . . . and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112 (a). A "qualified individual with a disability" means an "individual with a disability who, with or without reasonable accommodation can perform the essential functions of the employment position that one holds or desires." 42 U.S.C. § 12111 (8).
In order to establish a prima facie case of discriminatory discharge under the ADA, a plaintiff must establish that: (1) she is disabled or is regarded as disabled, (2) she is qualified for the job, (3) she was subjected to an adverse employment action on account of her disability, and (4) she was replaced by or treated less favorably than the non-disabled employees. See Gowesky v. Singing River Hosp. Sys., No. 02-60283, slip op. 1759, 1767 (5th Cir. Feb. 6, 2003). Once the plaintiff makes this initial showing, the burden shifts to the defendant-employer to show that the there was a legitimate non-discriminatory reason for the adverse employment action. Id. at 1767. Once the employer articulates such a reason, the burden shifts back to the plaintiff to show by preponderance of the evidence that the articulated reason was a pretext. Id.
1. Is Bice Actually Disabled Under the ADA because of her ADHD or Depression?
Lennox argues that it is entitled to summary judgment that the plaintiff is not disabled and is therefore not covered by the ADA. As stated earlier, the term "disability" under the ADA includes: (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. Demar v. Car-Freshner Corp., 49 F. Supp.2d 84, 88 (N.D. N.Y. 1999). Merely having an impairment does not make one disabled for ADA purposes. Toyota Motor Mfg. Ky. v. Williams, 534 U.S. 184, 195 (2002). To qualify as having an actual disability, a claimant must show that their impairment limits a major life activity. Id. "Major life activities," include activities that are of "central importance to daily life." Id. Examples are walking, seeing, hearing, performing manual tasks, concentrating, learning, hearing, speaking, breathing. and working. Id.; Demar v. Car-Freshner Corp., 49 F. Supp.2d 84, 88 (N.D. N.Y. 1999).
The limitation on a major life activity must be "substantial." Toyota, 534 U.S. at 195. The EEOC regulations define the term "substantially limits" as (i) unable to perform a major life activity that the average person in the general population can perform, or (ii) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the average person in the general population. . . . See 29 C.F.R. § 1630.2 (j). According to the EEOC, the following factors should be considered when determining whether an individual is substantially limited in performing a major life activity: 1) the nature and the severity of the impairment, 2) the duration or expected duration of the impairment, 3) the permanent or long term impact. 29 C.F.R. § 1630.20).
In Toyota, the Supreme Court found that these terms need to be interpreted strictly to "create a demanding standard for qualifying as disabled." Id. Toyota limited the ADA analysis to include only those impairments that prevent or severely restrict an individual from doing activities that are of central importance to most people's daily lives. Id. at 198. Accordingly, the ADA does not consider every impaired person to be disabled. DeMar, 49 F. Supp.2d at 89. The determination that an individual has a disability is made on a case by case basis and viewed in relation to how well an average person in the population can perform that activity. Id.; Sutton v. United Air Lines, Inc. 527 U.S. 471 (1999). The court's focus is on the effect of the impairment on the life of the individual, rather than the diagnosis. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). To this end, federal courts have not uniformly held that ADHD substantially limits a major life activity. Many courts have found that a plaintiffs ADHD did not rise to the level of an ADA disability. See DeMar v. Car-Freshner Corp., 49 F. Supp.2d 84 (N.D. N.Y.) (finding plaintiffs ADHD did not itself constitute a disability because although it interfered with his performance, it did not substantially limit his ability to work); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1997) (finding that although ADD qualifies as an impairment under the ADA, plaintiffs ADD did not prevent her from engaging in the major life activity of working); Price v. National Bd. of Med. Exam'rs, 966 F. Supp. 419, 427 (S.D. W. Va. 1997) (holding that plaintiffs' ADHD did not constitute a disability because they had the ability to learn at least as well as the average person). But see Berchovitch v. Baldwin Sch., Inc., 133 F.3d 141 (1st Cir. 1998) ("On the facts of a specific case, a plaintiff diagnosed with ADHD may have a mental impairment under the meaning of the statute."); Dibenedetto v. City of Reading, 1998 WL 474745 at *14 (E.D. Pa. July 16, 1998) ("Courts have held that ADD/ADHD can be considered a disability under the ADA."); Guckenberger v. Boston University, 957 F. Supp. 306 (D.Mass. 1997) (certifying an ADA class action suit by students with learning disabilities and ADD/ADHD).
Lennox contends that Bice has no claim under the ADA because her ADHD did not substantially limit her ability to perform tasks relating to any major life activity. It argues that although Bice found it more difficult to perform different tasks, she was still able to perform all of the functions that the EEOC considers "major life activities." They contend that Bice could work, take care of herself and her family, bathe, shop, and cook. Furthermore, because she sought new employment after she was terminated, Lennox argues that this indicates both her ability and desire to work, as well as perform other "major life activities."
In contrast to Lennox's argument that Bice suffered no substantial impairment, Bice maintains that she suffered substantial limitations in her concentration which affected her ability to work. Although she was able to perform the essential functions of her job, Bice argues that, her inability to concentrate and her sensitivity to noise caused her to take longer to complete tasks and impeded her ability to compete with co-workers. Bice also argues that ADHD qualifies her as disabled because her condition is permanent.
Bice misconceives the distinction between an impairment and a disability that substantially limits a major life activity, as defined under the statute. For instance, she argues mainly that her ADHD limits her ability to compete with her co-workers and jumps to the conclusion that her inability to concentrate and perform tasks as efficiently as she would like, "substantially limits" her when compared to the average person. However, Bice's inability to concentrate or compete with her co-workers does not "severely restrict" her ability to work. Bice may not have been the best Product and Supply Manager, but she was not substantially limited in her ability to perform her duties. Bice has not demonstrated that there is a genuine issue of material fact tending to show that she was disabled by her ADHD. She simply is not substantially impaired in the major life activity of working as evidenced by the fact that she sent out resumes seeking employment elsewhere. See Donna Bice's deposition, at 30. Bice claims no other substantial impairment of a major life activity.
Similarly, Bice has not created an issue of fact that her alleged depression constituted a disability under the ADA. Depression, like other mental illnesses, can qualify as a disability for ADA purposes. See Doe v. Region 13 Mental Health-Mental Retardation Comm'n, 704 F.2d 1402 (5th Cir. 1983); Stradley v. LaFourche Communications, Inc., 869 F. Supp. 42 (E.D. La. 1994). But See Palmer v. Circuit Court of Cook County, 117 F.3d 351 (7th Cir. 1997); Dupre v. Harris County Hosp. Dist., 8 F. Supp.2d 908 (S.D. Tex. 1998). Therefore, if a plaintiff's depression substantially limited a major life activity, she would be protected by the ADA. Nowhere in Bice's opposition to the defendant's summary judgment motion does she even raise the issue that her depression was an actual disability as contemplated by the ADA. Accordingly, Bice has not show an actual disability and must establish she was "regarded as disabled" in order to prevail on her claim of discriminatory discharge under the ADA.
2. Was Bice "regarded as" disabled by her supervisors?
The ADA's definition of "disability" permits suits by plaintiffs who, though not actually disabled under § 12102(2)(A), are "regarded as having such an impairment." 42 U.S.C. § 12102 (2)(C). The Fifth Circuit has established the manner in which a plaintiff may prove such a claim:
One is regarded as having a substantially limiting impairment if the individual (1) has an impairment which is not substantially limiting but which the employer perceives as constitution a substantially limiting impairment; (2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) has no impairment at all but is regarded by the employer as having a substantially limiting impairment.Gowesky. No. 02-60283, slip op. At 1764 (citing Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996). "Regarded as" having a disability "turns on the employer's perception of the employee" and is therefore a question of intent, not whether the employee has a disability. DeMar, 49 F. Supp.2d at 94. It is not enough to show that the employer was aware of the disability, the plaintiff must show that the employer regarded the plaintiff as disabled in such a way that it substantially affected her ability in a major life activity. Id.
Bice claims, alternatively, that even if the Court fails to find actual disability, that is should find that she was disabled because her employers regarded her as disabled under § 12102(2)(C). She argues that the circumstances culminating in her termination illustrate that her employers perceived that her condition substantially restricted her from performing her work. Bice directs the Court's attention to the "QPR Evaluation," Odum filled out on February 14, 2001. assessing Bice's job performance in 2000 and to Laura Jeffrey's deposition. Bice contends that this evidence establishes that her supervisors regarded her as disabled, terminated her home-based accommodation, and ultimately terminated her employment completely because they believed that she was substantially limited in her ability to work. The Court disagrees. The evidence Bice submits to the Court only establishes that Odum and Jeffery's were aware of Bice's ADHD and depression. However, there is no indication that they perceived these problems is a disability or that her ADHD or depression "substantially limited" her ability to work. The "QPR Evaluation" makes no reference to Bice's ADHD or depression, nor does it refer to it as a cause of deficiencies in her performance. In fact, in several sections of the evaluation. Odum provides a positive review of Bice's performance. For instance he states in one part:
Key areas of responsibility were completed effectively with quality results. Overall, completed tasks and projects at a competent level. Effective solutions and suggestions were applied to key areas of responsibility. Applied good job knowledge, understanding and skills.
Most of Odum's criticism focused on the untimely way Bice completed tasks and her inability to work as a "team player." However, this criticism does not indicate that he attributed these failings to her ADHD or depression, or that he felt that Bice was incompetent or "substantially impaired" in performing her duties. As to Laura Jeffery's deposition testimony, her comments also do not show that she regarded Bice as disabled under the meaning of the ADA. Therefore, Lennox is entitled to summary judgment on the issue of whether Bice was disabled.
Because Bice is not disabled under the ADA, her claims for discrimination under the ADA and Louisiana law, must fail. 42 U.S.C. § 12102 (a). Similarly, her claim under the ADA for failure to enter a good-faith interactive processes under the ADA and Louisiana law are also dismissed because the existence of a cognizable disability is a prerequisite for maintaining these claims. 29 C.F.R. § 1630.2 (o)(1)-(3).
3. Does Bice have a claim for ADA Retaliation?
The gravamen of Bice's grievance against Lennox lies in her assertion that her Lennox supervisors terminated her in retaliation for her requests for reasonable accommodations.
Courts treat retaliation claims identically whether brought under the ADA or Title VII. DeMar, 8 F. Supp.2d at 924.
To establish a claim for retaliation under the ADA with circumstantial evidence the plaintiff must show:
(1) that she engaged in a statutorily protected activity;
(2) that she suffered adverse employment action; and
(3) that a causal connection existed between the protected activity and the adverse actionDeMar, 8 F. Supp.2d at 924. Once the plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to present a non-discriminatory reason for the adverse employment action. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998). If the defendant can do so, the burden of production then shifts back to the plaintiff to demonstrate that the proffered reason is a pretext. Id. at 1122. At all times, however, the plaintiff has the ultimate burden of proof. Id. The plaintiff must produce evidence of a conflict that is substantial enough on the issue of retaliation to withstand a motion for summary judgment. Id. Evidence is substantial enough if it is of "such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions." Id.
The Court finds that the plaintiff has created a genuine issue of fact as to all three prongs. The Court will only discuss the first and third elements of the prima facie case of retaliation because it is undisputed that Bice suffered an adverse employment action as her job was terminated. As to the first prong of the retaliation claim, which requires the plaintiff to show that she was engaged in a statutorily protected activity, Bice may satisfy this burden by showing that she had a good faith, objectively reasonable belief that her activity was protected by the statute. Standard v. A.B.E.L. Services, Inc., 131 F.3d 1318, 1328 (5th Cir. 1998). To create an issue of fact establishing her good faith belief that she was engaging in a protected activity, Bice offers her comments in response to Jeff Odum's "QPR Evaluation" of her work performance for 2000, in which she complains that she did not receive an reasonable accommodation for her ADHD. She sent those comments to her supervisor, Jeff Odum on March 26, 2001. Her response to his evaluation of her states:
In the fall of 1999, I expressed to you that I could not effectively or productively perform my job responsibilities with the working environment that existed in the New Orleans Sales office. I advised you that I am ADHD and requested a quite, professional work environment. The unprofessional working environment is a constant distraction and interferes with my ability to do my job. You allowed me to office out of my home. You had me install a business phone line, you bought me a fax, and a printer, office machine and I started working from home.
You told me that I would have a separate office when we moved into the new facility to assure that I had a work station that was quiet. . . . For whatever reason . . . that plan changed and I was put in an open work station. I spoke to you on several occasions about the issues of the noise and disruption in the office. You did nothing to correct the work environment.See Plaintiff's Exhibit 18. Bice's comments are sufficient to create an issue of fact that she had a good faith, objectively reasonable belief that she was engaged in a protected activity, requesting that her employer provide a work atmosphere to accommodate what she considered to be an impairment. For the above reasons, the Court concludes that Bice had a good-faith belief that her complaints about her accommodations were a protected activity.
Next, Bice presents evidence to create a genuine issue of fact as to the third requirement, that her termination was retaliatory. Lennox argues that its legitimately terminated Bice because she failed to appear for work for five consecutive days. Bice contends that Lennox's claim that she abandoned her job is a mere pretext, disguising the fact that they retaliated against her for complain is about her accommodations.
First, Bice argues that Lennox terminated Bice's employment by sending her a letter on June 8, 2001 after she had not returned to work for five days. She maintains that this method of terminating her without notice or warning was extremely harsh in light of the fact that she was an employee of ten years. Additionally, she asserts that her termination was an overly extreme measure because her husband left a voicemail with Lane Jeffreys, Odum's supervisor, that Bice was suffering from severe depression, and that was the reason she did not show up for work. On June 1, 2001, Bice's husband left a message for Mr. Jefferys, indicating that Bice would be out for work on June 1 due to symptoms of "severe depression." Additionally, Bice's husband testified that he also spoke with Odum and told him that "Donna had been diagnosed with depression and that she would be out for a few days." Deposition of John Bice, at 27. Bice also maintains the circumstances of her termination were retaliatory because after she had missed work a few days beyond the time indicated in her husband's messages to Odum and Jeffreys, her supervisors never attempted to call her to find out what was wrong, or advise her on how to secure benefits for medical leave. Bice testified in her deposition, that in her experience, if an employee needed time off, Lennox would contact the employee about how to obtain medical leave.
The Court finds that this evidence is of sufficient weight that reasonable and fair minded persons, in he exercise of impartial judgment might reach different conclusions about whether or not Lennox's termination of Bice was retaliatory. Bice's evidence that she had been an employee For 10 years, that her employers were aware of her medical conditions, that she had complained about her accommodations to her supervisors, and that her husband called both Odum and Jeffreys to communicate that she would be out for a few days, leave open the possibility that her dismissal was retaliatory.
Accordingly,
IT IS ORDERED that Lennox's Motion to for Summary Judgment is GRANTED, in part, as to Bice's claims for discrimination under the ADA and Louisiana law, gender discrimination under Title VII and Louisiana law, and as to her claims under ERISA.
IT IS FURTHER ORDERED that Lennox's Motion for Summary Judgment is DENIED as to Bice's claims for retaliation under the ADA and Louisiana law.