Opinion
Civil Action No. 3:99-CV-1722-D
December 18, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Albenjamin Blanks ("Blanks"), who is HIV positive, sues defendant Southwestern Bell Telephone Company ("SWB") alleging that it violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., by failing reasonably to accommodate his disability and constructively discharging him. SWB moves for summary judgment, contending the court lacks jurisdiction because the discrimination charge that Blanks filed with the Texas Commission on Human Rights ("TCHR") did not disclose the nature of his disability. It also maintains that, if the court has jurisdiction, Blanks cannot establish that SWB discriminated against him on the basis of disability because it did not know he was disabled, his HIV status does not qualify as a disability under the ADA, it offered him a reasonable accommodation, did not treat him less favorably than his peers, and did not constructively discharge him. For the reasons that follow, the court grants SWB's motion.
SWB also contends that Blanks did not charge the other named defendants with discrimination and has not satisfied the jurisdictional prerequisites. In view of Blanks' clarification regarding whom he intends to sue, the court need not decide this issue.
Blanks sued Southwestern Bell Communications, Inc. ("SBC"), individually and d/b/a SBC Operations, Inc. d/b/a Southwestern Bell, d/b/a Southwestern Bell Telephone Company; and Southwestern Bell Telephone Company, individually and d/b/a Southwestern Bell Telephone Company of Texas d/b/a Southwestern Bell Telephone d/b/a Southwestern. The only defendant who answered, however, is SWB. See D. Nov. 8, 1999 Answer. When the parties submitted their Fed.R.Civ.P. 26 scheduling proposal, only Blanks and SWB participated in the submission. In response to SWB's argument that Blanks failed to name SBC, SWB's parent company, in his TCHR discrimination charge, Blanks clarifies that he did not intend to sue SWB's parent company, that he simply used in the caption names that appeared on various correspondence he has received from SWB, and that he is willing to amend his complaint to remove SBC as a defendant. See P. Br. at 17-19. Accordingly, the court holds that only SWB is a party-defendant to this case.
I
SWB employed Blanks from 1977 until June 1997. He held various positions with the company, including residential customer service representative ("CSR") from 1994 until 1996. Blanks took short-term medical disability leave in 1996 as a result of severe depression and personal and work-related stress. In November 1996, while on leave, he was diagnosed with HIV and began treatment for the disease.Blanks obtained a medical release to return to work, but his doctor recommended to SWB that, due to the extreme stress of dealing with angry customers, and given Blanks' depression, he not return to his previous position of residential CSR. For several months in early 1997, SWB and Blanks attempted to agree on an appropriate company position. SWB first offered him a supplies attendant job that he had previously held, but he refused the offer because recent hemorrhoid surgery prevented him from safely performing the required lifting. Blanks requested a position as an internal CSR dealing solely with SWB employees, but SWB denied his request. SWB ultimately offered, and Blanks accepted, a position as general clerk, which paid about one hundred dollars a week less than the residential CSR job he had previously held. Blanks began training for the position in June. He worked for about two weeks before submitting a letter of resignation on June 18, 1997. He stated in his letter that he could not continue to support his family given the pay cut associated with the clerk position.
Blanks filed a charge of disability discrimination with the TCHR on September 8, 1997, although he did not disclose that the specific disability from which he suffered was HIV. Blanks received his right-to-sue letter and filed the instant suit. SWB moves for summary judgment.
II
The court first considers SWB's argument that the court lacks jurisdiction because Blanks failed to disclose the specific nature of his disability in the discrimination charge that he filed with the TCHR.
"[A]n employee must comply with the ADA's administrative prerequisites prior to commencing an action in federal court against [his] employer for violation of the ADA." Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (per curiam). Because the ADA incorporates by reference the procedures applicable to actions under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., an ADA plaintiff "must file a timely charge with the [Equal Employment Opportunity Commission ("EEOC")], or with a state or local agency with authority to grant or seek relief from the alleged unlawful employment practice." Dao, 96 F.3d at 789. In the Fifth Circuit, a Title VII action is limited in scope to the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. Young v. City of Houston, Tex., 906 F.2d 177, 179 (5th Cir. 1990) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). In other words, a complaint filed under Title VII may encompass any kind of discrimination "like or related to" allegations contained in the EEOC charge. Sanchez, 431 F.2d at 466. The same principles and result apply to an ADA claim. See Leptich v. City Coll. of SF, 134 F.3d 378, 1998 WL 22037, at **1 (9th Cir. Jan. 15, 1998) (per curiam) (unpublished opinion) (holding that plaintiff was required to exhaust administrative remedies before seeking judicial relief for ADA claim and that charges not raised in administrative complaint could not be basis of complaint in federal court) (citing 42 U.S.C. § 12117(a) as incorporating Title VII procedures); Davis v. Alhambra Nat'l Water Co., 1999 WL 33435, at *1 (N.D. Cal. Jan. 20, 1999) ("Because plaintiff is required to exhaust his administrative remedies before proceeding to court with his ADA claim, the scope of this action must be limited by the scope of plaintiffs charge with the EEOC.").
Blanks filed a charge with the TCHR on September 8, 1997 in which he alleged inter alia the claims he makes in this suit: that as a result of his disabilities he was forced to take a demotion and salary decrease, that he was denied a reasonable accommodation, and that he was forced to resign. See D. App. 73. Where the form inquired concerning the "cause of discrimination based on," he checked the "disability" box. Id. The TCHR thus knew that Blanks alleged discrimination based on a disability. This is enough information to initiate an investigation. Blanks' suit is not barred as a result of his failure to indicate his HIV status in the charge he filed with the TCHR.
Decisions of this court that have concluded that charges were insufficient to confer jurisdiction are distinguishable. See, e.g., Magna v. Tarrant/Dallas Printing, Inc., 1998 WL 548686, at *2 (N.D. Tex. Aug. 21, 1998) (Fitzwater, J.) (holding insufficient to confer jurisdiction for race discrimination charge reference in EEOC charge to replacement by "non-Hispanic," absent checking race discrimination box,), aff'd, No. 98-11054 (5th Cir. Aug. 19, 1999 (per curiam).
III
The court now turns to the merits. SWB first contends that Blanks cannot prove that SWB discriminated against him based on disability because there is no evidence that any SWB decisionmaker knew of Blanks' HIV status. SWB argues that, according to Blanks' deposition testimony, he only personally told Rose Presley ("Presley"), his previous supervisor in residential customer service, that he was diagnosed with HIV and did not personally inform anyone else at the company. Citing Gutwaks v. American Airlines, Inc., 1999 WL 1611328, at *4 (N.D. Tex. Sept. 2, 1999) (Stickney, J.), SWB posits that Presley's knowledge cannot be imputed to a large corporation. D. Br. at 16. It maintains that unsubstantiated assertions are insufficient to withstand summary judgment. SWB contends that Blanks worked with three employees in his return-to-work process — Susan Britt ("Britt"), Bea Martinez ("Martinez"), and Betina Harris — none of whom knew of his HIV status.
Blanks responds that he was only obligated to inform Presley of his HIV status and that "[o]ne would hope" that Presley informed others in the chain of command. Citing Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996), he contends that he need only show that SWB knew or should have known of his substantial physical or mental limitation, and that SWB should have known because Martinez knew he had a permanent disability and Britt was responsible for placing him in a job after he returned to work from disability leave. See P. Br. at 14.
The court holds that SWB is not entitled to summary judgment on this basis. Blanks has adduced evidence that Martinez, who was directly responsible for finding him a position upon his return to work, knew he had a disability and was under the impression that it prevented him from working as a CSR. See P. App. 13. Regardless whether SWB knew that Blanks suffers from HIV, it knew of the limitations that allegedly resulted from a disability, which is sufficient under the ADA. See Taylor, 93 F.3d at 164 (holding that ADA requires accommodation of employee's limitations rather than of his disability).
IV
SWB argues next that it is entitled to summary judgment because Blanks' HIV status does not qualify as a disability under the ADA.1
The ADA mandates that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). To prevail on a discrimination claim under this provision, Blanks "must prove that 1) he has a `disability'; 2) he is `qualified' for the job; and 3) an adverse employment decision was made solely because of his disability." Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996) (per curiam) (citing Rizzo v. Children's World Learning Ctrs., Inc., 84 F.3d 758, 763 (5th Cir. 1996)). The sine qua non of an ADA claim is that the plaintiff is a qualified individual with a disability. See id.
The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities of an individual, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102(2). In all cases, the impairment must substantially limit one or more major life activities of the individual. See Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996). The ADA does not define "substantially limits" or "major life activities," but EEOC regulations promulgated pursuant to the ADA provide significant guidance. "Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (quoting 29 C.F.R. § 1630.2(i) (1997)). Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact. Id. (citing 29 C.F.R. § 1630.2(j)(2)(i)-(iii) (1997)).
2
SWB argues that although HIV is recognized as a physical impairment from the moment of contraction, see Bragdon v. Abbott, 524 U.S. 624, 637 (1998), Blanks has failed to cite summary judgment evidence that the disease substantially affects one or more of his major life activities. In his responsive brief, Blanks discusses the impairment aspect of the Bragdon decision, but he does not address how HIV substantially affects one or more of his major life activities or even identify any such activities. The ADA defines disability as inter alia a physical impairment that substantially limits one or more major life activities of an individual, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102(2). Because Blanks does not cite any summary judgment evidence concerning this required element of his claim, the court concludes that SWB is entitled to summary judgment on this basis.
As are other parts of Blanks' summary judgment brief, this portion is woefully lacking.
3
Even if the court assumes arguendo that Blanks' evidence relating to his inability to cope with the stress of his residential CSR job — which he offers in response to SWB's other arguments — can be considered as proof that his infection with HIV substantially limits the major life activity of working, this evidence is insufficient to support a reasonable jury verdict in his favor.
An impairment to the major life activity of working is considered only if there is no evidence of an impairment to another major life function. Dutcher, 53 F.3d at 726 n. 10. Although Blanks does not mention another major life activity in his brief, see P. Br. at 15, the Supreme Court has held that reproduction, which is substantially affected by HIV, is a major life activity. Bragdon, 524 U.S. at 638. Therefore, before considering the effects of HIV on his ability to work, the court considers the effects on reproduction.
A potential disability must be evaluated with respect to the extent the impairment substantially affects not major life activities in general, but the individual plaintiffs major life activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999). Although HIV generally affects in a substantial manner a person's reproductive activity, there is no summary judgment evidence that it impacts Blanks' conduct in this respect. Blanks testified that after his wife gave birth to their daughter in the early 1990s — well before the time when SWB allegedly discriminated against him — the couple decided not to have any more children. D. App. 24-25. As a result of this decision, Mrs. Blanks immediately underwent a procedure that prevents her from becoming pregnant. Id. at 25. Accordingly, Blanks' HIV status has no effect on reproduction, and he has failed to offer evidence in this regard of another substantially limited major life activity. See Gutwaks, 1999 WL 1611328, at *4 ("[I]t is apparent here that reproduction is not a major life activity for Gutwaks. His decision not to have children was a personal one, not caused by his HIV positive status."); see also Quails v. Lack's Stores, Inc., 1999 WL 731758, at *3 (N.D. Tex. Mar. 31, 1999) (Cummings, J.) (holding that, even if reproduction were major life activity under ADA, plaintiff could not assert that infection with Hepatitis C substantially limited that major life activity because after birth of fourth child, plaintiff had vasectomy).
For the major life activity of working to be substantially affected, a plaintiff must be "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. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i). "[O]ne must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton, 527 U.S. at 492.
Although most courts treat working as a major life activity, the Supreme Court is reluctant to do so. See Sutton, 527 U.S. at 492. This court, as in Sutton, will assume that working is a major life activity.
When asked what effect HIV had on his ability to do his job before his alleged constructive discharge in June 1997, Blanks said, "[a]t that point it didn't. . . . [t]here was no effect physically. . . . It wasn't a constant type of stress. The initial acceptance is the main thing. After that, the depression kind of comes and goes." D. App. 23. Blanks thus did not regard his HIV as substantially limiting his ability to perform either a class of jobs or a broad range of jobs. In fact, he maintains that the only job affected was his particular job as residential CSR. Id. at 45. As such, although Blanks' HIV may have substantially affected his ability to work at his old job, that job does not alone constitute the major life activity of working.
4
Blanks also argues that SWB regarded him as disabled. Even if Blanks does not suffer from an impairment that substantially affects a major life activity such as working, he can avoid summary judgment on this element of his claim by showing that Southwestern Bell regarded him as significantly restricted in his ability to perform a class or broad range of jobs. Bridges, 92 F.3d at 332.
The only relevant evidence he cites is this statement by Martinez, a coordinator of his return to work: "Her statement to me was I had a permanent disability that would never allow me to work as a customer service representative at Southwestern Bell." P. App. 13. This proof is insufficient to permit a reasonable trier of fact to find in his favor.
First, Blanks has not introduced evidence of his particular skills. This proof is necessary to decide whether preclusion from being a CSR significantly restricted his ability to perform a class or broad range of jobs. Second, the summary judgment evidence would only reasonably permit the finding that SWB made available to Blanks jobs that utilized his skills and did not regard him as being unable to work. Third, although Martinez used the word "disability" in her statement, there is no summary judgment evidence that would permit a reasonable trier of fact to find that she understood or intended to use it as the term is defined under the ADA.
Under the ADA, a disability consists both of an impairment and of the substantial effect that the impairment has on a major life activity. A reasonable trier of fact could not find that Martinez's statement reflects the view that Blanks' impairment substantially affects his ability to work or to perform any other major life activity. Although she indicated that she felt that Blanks could not work as a CSR, she later attempted to find Blanks another job at SWB, see D. App. 33-34, which indicates that she did not feel that Blanks lacked the ability to work at a broad range or class of jobs. See Sutton, 527 U.S. at 493 (holding that position of global airline pilot is single job, the preclusion of which does not constitute substantial limitation on major life activity of working). A reasonable trier of fact could not find on the basis of Martinez's single statement that she regarded Blanks as disabled; it could only reasonably find that she regarded him as impaired. Because Blanks' HIV status did not significantly restrict his ability to perform a class or broad range of jobs, but instead affected only a particular job that he desired at one point in time, Martinez's statement that Blanks had a permanent disability that prevented him ever again from working as a CSR would not permit a reasonable trier of fact to find that SWB regarded him as disabled.
V
SWB argues that even if Blanks can prove that he is disabled, he cannot establish that SWB failed reasonably to accommodate his disability.
When, as in this case, an employee asks for an accommodation, this request triggers a duty on the part of the employer to initiate an interactive process during which employer and employee share responsibility for reaching an accommodation. Taylor, 93 F.3d at 165. After Blanks made his request, SWB offered him the position of supplies attendant. Blanks testified that he would have been satisfied with this job had it not been for his inability to perform the physical aspects due to recent hemorrhoid surgery. See D. App. 33-35. While SWB continued to search for an appropriate position, Blanks requested that he be assigned to the job of internal CSR, which would have entailed the same general responsibilities as his previous residential CSR job, except that the customers would be other SWB employees rather than regular customers. Id. at 39-41. SWB declined Blanks' request and instead offered him a job as a general clerk, which he accepted. SWB argues that this process satisfied its obligation to offer Blanks a reasonable accommodation for his disability. Blanks responds that SWB's unwillingness to offer him the internal CSR job constitutes evidence of its failure reasonably to accommodate him. He asserts that SWB "did nothing to facilitate the interactive process." P. Br. at 16.
The ADA requires an employer to offer an employee a reasonable accommodation, not a preferred accommodation. See 29 C.F.R. § 1630.9; Carter v. Bennett, 840 F.2d 63, 67 (D.C. Cir. 1988). The only evidence Blanks offers of problems with the accommodation process is a statement by Britt, an employee who assisted his return to work, that he could not decline a job offer if she found him a "suitable" position. D. App. 51. This evidence would not permit a reasonable trier of fact to find in Blanks' favor. Because a "suitable" position and a "reasonable" accommodation are essentially the same, Britt's statement is insufficient of itself to prove that the process by which SWB found and offered Blanks the clerk job violated its obligation reasonably to accommodate his alleged disability.
Blanks also contends that the job offer itself was unreasonable, but his only evidence is that the pay was lower than he desired. SWB argues that it acted reasonably in denying his request for an internal CSR position based on its view that he could not handle the stress. Blanks admits the similarities between the residential CSR and internal CSR positions, although he maintains that the internal position involved less stress because fellow employees tend to be friendlier when on the telephone with CSRs. See id. at 41-42. Even if this characterization is accurate, a reasonable trier of fact could only find that SWB reasonably thought that Blanks' stress problem precluded him from engaging in multiple daily telephone interactions with potentially angry customers, whether residential or internal.
Given the reasonableness of SWB's position, it is irrelevant whether Blanks is correct that he could have handled the stress of the internal CSR job. See Armstrong v. Turner Indus., Inc., 141 F.3d 5 54, 560 n. 15 (5th Cir. 1998) (noting that ADA protects employees from unlawfully motivated, but not erroneous or arbitrary, personnel decisions). Moreover, Blanks admitted that he never worked as an internal CSR, D. App. 40, and that he had little knowledge of what the position entails, id. at 41. These admissions indicate Blanks' lack of the requisite knowledge to judge on his own the degree of stress faced by an internal CSR, and they strengthen SWB's argument that it made a reasonable decision about whether he could handle such a job.
Because SWB worked with Blanks to find him a suitable job, offered him a position that paid about only somewhat less per week than his prior job, and ultimately offered him a job that a reasonable trier of fact could only find was a reasonable accommodation, the court holds that Blanks has failed to present a genuine issue of material fact that SWB failed reasonably to accommodate his disability. SWB is entitled to summary judgment on this ground.
VI
SWB argues that Blanks cannot show he was treated less favorably than his peers. See D. Br. at 40. It maintains that he has therefore failed to meet his burden under the fourth element of the prima facie case. To establish a prima facie case of disability discrimination, a plaintiff must demonstrate that he (1) suffers from a disability, (2) is qualified for the job, (3) was subject to an adverse employment action, and (4) was replaced by a non-disabled person or was treated less favorably than non-disabled employees. Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997) (citing Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995)). Because Blanks did not respond to this argument and has failed to adduce evidence regarding who replaced him, the court holds that he has failed to show that there is a genuine issue of material fact that precludes summary judgment dismissing his reliance on the burden-shifting method of proving ADA discrimination.
VII
SWB contends it did not constructively discharge Blanks. SWB argues that the harmful actions that Blanks accuses it of taking do not meet the definition of constructive discharge. It maintains in the alternative that, even if he was constructively discharged, Blanks cannot prove the requisite causal link with his disability because no one but Presley knew he had HIV.
Because SWB knew of Blanks' limitations that allegedly resulted from a disability, see supra § III, the question is whether SWB' s actions towards him leading up to his June 18, 1997 resignation constituted constructive discharge. For an employee's decision to resign to constitute constructive discharge, employment conditions must at the time be intolerable and thereby force him to make the reasonable decision to resign. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993). Blanks admits that people in his department did not treat him badly, there was a good working environment, he received no threats about his job, and he did not feel unwelcome. D. App. 58-59. In fact, his only complaint about the job — "the main sticking point . . . the crux of the whole matter," id. at 59 — was its comparatively lower pay. Id. Blanks received as a clerk about one hundred dollars per week less than he had received as a residential CSR. Id. at 56. This disparity in salary does not rise to the level of intolerable conditions necessary to prove constructive discharge. In fact, the Fifth Circuit has held that the transfer of an employee to a position paying approximately $4,100 a year less than his previous position did not constitute discrimination. See Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 623 (5th Cir. 2000). The disparity between Blanks' salary as a clerk and his compensation as a CSR — approximately $5,200 a year — is in the same range.
Moreover, an employee must demonstrate aggravating factors, beyond any proof of an underlying discriminatory act, to establish constructive discharge. See Jurgens v. EEOC, 903 F.2d 386, 392-93 (5th Cir. 1990). Given the absence of complaint by Blanks about any aspect of his job, except for the salary disparity, a reasonable trier of fact could not find that he was constructively discharged.
* * *
In sum, Blanks has failed to introduce evidence that permits a reasonable trier of fact to find that he is a qualified individual with a disability. Even assuming that he has, a reasonable trier of fact could not find that SWB failed reasonably to accommodate him, treated him less favorably than his peers, or constructively discharged him. Accordingly, SWB's motion for summary judgment is granted, and this action is dismissed by judgment filed today.