Opinion
Civil Action No. 3:00-CV-0368-L
December 11, 2001
MEMORANDUM OPINION AND ORDER
Before the court are Defendant American Airlines, Inc.'s Motion for Summary Judgment, filed February 7, 2001, and Plaintiff David Fox's Motion to Deny Summary Judgment, filed March 2, 2001. Although styled as a Motion to Deny Summary Judgment, Plaintiff's motion is in essence a response to Defendant's summary judgment motion. In light of Plaintiff's response, a separate motion to deny summary judgment is unnecessary, and accordingly Plaintiff's Motion to Deny Summary Judgment is denied as moot. After careful consideration of Defendant's summary judgment motion, Plaintiff's response, Defendant's reply, the summary judgment record, and applicable authority, the court, for the reasons stated, grants Defendant's Motion for Summary Judgment.
I. Factual and Procedural Background
This is an employment discrimination case. Plaintiff David Fox ("Plaintiff" or "Fox") contends that he was discharged from his employment with Defendant American Airlines, Inc. ("Defendant" or "American") because of his age, which was 52 at the time of his termination, and disability. The facts giving rise to Plaintiffs claims are recited below, and are undisputed, unless noted otherwise.
Fox began his employment with American in October, 1990, as a curriculum developer in the company's Flight Training Department, specifically, the division of Flight Training Program Development. As a curriculum developer, Fox was responsible for developing flight training programs, which included computer-based training and written manuals designed to educate American's pilots in the performance and operation of the company's aircraft and equipment. During his nine years of employment with American, Fox held various positions in the Flight Training Department, including curriculum developer, lead developer, program developer for American's international fleet and special projects, and ground school supervisor. In each of these positions, Fox was required to develop and implement training programs for American's pilots in accordance with regulations established by the Federal Aviation Administration ("FAA").
In January 1998, Fox began working as a ground school supervisor for American's DC-9, DC-10 and DC-11 fleet. In that capacity, Fox supervised twelve to fourteen ground school instructors and was responsible for ensuring that his training programs were current and fully complied with FAA regulations. In December 1998, American acquired Reno Airlines and several of its aircraft, which differed in many respects from American's aircraft.
In early 1999, Fox was given the responsibility of developing and implementing a training program to instruct American's pilots on the operation of Reno aircraft. Prior to beginning the Reno to American training, American obtained approval for the training from the FAA, as well as certification for a minimum of eight hours of training per session. As the ground school supervisor in charge of the Reno to American training, Fox was responsible for, inter alia, preparing the necessary training materials and course outline for his ground school instructors.
The parties refer to this training as either the "Reno — AA transition" or "Reno to American training." The court will do the same.
The first Reno to American training session was held on August 2, 1999, and continued throughout that month and into September 1999. By letter dated September 10, 1999, Captain Aubrey Landry, Managing Director of Flight Training Standards, informed Fox that he would be receiving an American Express Gift check from the company in the amount of $100 in appreciation of his contribution and dedication to the Reno-AA transition.
In mid-to-late September 1999, Captain Landry discovered that American's pilots had not been receiving the required eight-hour minimum training approved by the FAA for the Reno to American training. Thereafter, American ceased all Reno to American training classes and informed the FAA that the training program had failed to comply with the minimum hours of training approved by the administration. At the same time, Captain Landry directed Fox and Captain Eric Lewis, Fox's supervisor, to develop a compliant training program. Through the efforts of Fox, Captain Lewis, and others in the department, a compliant training program was developed and American began retraining its pilots on the operation of Reno aircraft in October 1999.
On October 6, 1999, Captain Landry informed Fox that he had lost confidence in his (Fox's) ability to "carry out the responsibilities of his position utilizing strong management skills, exercising sound business judgment, and meeting established goods." Captain Landry offered Fox three options: resignation with severance; reassignment and/or demotion; and termination. Fox did not resign and refused to be demoted. Consequently, Fox was terminated on October 11, 1999, and his position was subsequently filled by Ed Farrell, who was 57 at the time.
On February 17, 2000, Fox filed the instant action asserting claims against American under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621, et seq., and the Americans with Disabilities Act of 1990 ("ADA") 42 U.S.C. § 12101, et seq. Plaintiff seeks injunctive relief, compensatory damages, including back pay, punitive damages, and attorney's fees. Defendant moves for summary judgment on Plaintiff's ADEA and ADA claims.
In his Original Complaint, Fox alleges that the court's jurisdiction is invoked because this action arises under the First and Fourteenth Amendments to the United States Constitution; under 42 U.S.C. § 1981, 1983, 1985 and 1986; and under Title VII of the Civil Rights Act of 1964. Plaintiff also asserts that his Texas state law claims are properly before the court based on pendent jurisdiction. Although Plaintiff generally invokes the court's jurisdiction under these various laws, his complaint does not assert a cause of action under any of them. Plaintiff's complaint only asserts claims under the ADEA and ADA. Moreover, Defendant's summary judgment motion and Plaintiff's response only address those claims brought under the ADEA and ADA. The deadline for amendment of pleadings has passed, and Plaintiff has not amended his complaint. Accordingly, the only claims before the court are under the ADEA and ADA and will be the only ones addressed by the court.
II. Summary Judgment Standard
Summary judgment shall be rendered when 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 judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Plaintiff's ADEA Claim
Plaintiff contends that he was terminated from his employment with American because of his age. American contends that Fox's ADEA claim fails as a matter of law because he cannot establish a prima facie case of age discrimination. In the alternative, American contends that it had a legitimate, nondiscriminatory reason for terminating Fox, his failure to properly develop, implement and monitor the American to Reno training, and that Fox has failed to present evidence which establishes that such reason was merely a pretext for age discrimination.
The ADEA makes it unlawful for an employer to "discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000); Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996). A plaintiff may establish a claim of discrimination under the ADEA by either presenting direct evidence or by using the indirect method of proof set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Fields v. J.C. Penney Co., Inc., 968 F.2d 533, 536 (5th Cir. 1992). To establish a prima facie case of age discrimination, a plaintiff must set forth evidence showing that 1) he was discharged; 2) he was qualified for his position; 3) he was within the protected class; and 4) he was replaced by someone outside the protected class, or by someone younger, or that he was otherwise discriminated against because of his age. Id.; Brown, 82 F.3d at 654; Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 976 (1993). If the plaintiff meets this burden, the employer must then produce evidence that rebuts the presumption of age discrimination by articulating a legitimate, nondiscriminatory reason for the adverse employment action. Brown, 82 F.3d at 654. The plaintiff must then present probative evidence that the employer's stated reason was a pretext for discrimination. Id. "Although the intermediate evidentiary burdens shift back and forth under [ the McDonnell Douglas] framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 530 U.S. at 143 ( quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The court now turns to whether Plaintiff has successfully presented a prima facie case of age discrimination.
For purposes of its summary judgment motion, American concedes that Fox can establish the first three elements of his prima facie case: (i) at the time he was fired, Fox was a member of the class protected by the ADEA (that is, an individual who is at least 40 years of age, see 29 U.S.C. § 631(a)); (ii) he was otherwise qualified for the position of ground school supervisor; and (iii) he was discharged by American. American, however, contends that Fox cannot establish the fourth element of his prima facie case. The court agrees.
As previously stated, to establish the fourth element in an age discrimination case, Fox must show that he was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged because of his age. See Brown, 82 F.3d at 655; see also Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). The summary judgment record establishes that at the time of his termination, Fox was 52 years of age. Fox was subsequently replaced by Ed Farrell, who at the time was 57. Fox therefore cannot establish that he was replaced by someone younger or outside the protected class. In an attempt to create a genuine issue of material fact on this issue, Fox asserts that "American does not mention Ed Farrel (sic) tenure or how close to retirement he was at Fox's termination." Pl.'s Br. to Oppose Def. American Airlines, Inc.'s Mot. for Summ. J. (hereafter Pl.'s Resp.) at 7. The court, however, fails to see the relevance of such evidence, as it would not give rise to an inference that Fox was terminated because of his age. Indeed, Plaintiff's argument is undermined because Farrell, who was closer to retirement age than Fox, was nevertheless hired to replace him.
The third alternative, that the plaintiff was otherwise discriminated because of his age, applies in circumstances where a plaintiff may not be able to show that he was replaced by a younger employee. See Brown, 82 F.3d at 655; see also Bauer, 169 F.3d at 966 (citing Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 150 (5th Cir. 1995), cert. denied, 516 U.S. 1047 (1996)). As Fox was replaced by an older employee, the court finds this alternative to be inapplicable to the facts of this case.
In cases where one of the elements of a plaintiff's prima facie case is missing, the plaintiff may attempt to remedy the deficiency by adducing evidence of discrimination in the form of remarks evidencing animus or bias. See e.g. Brown, 82 F.3d at 655-56 (the court considered whether age-related comments were sufficient evidence of age discrimination where plaintiff failed to present evidence to establish prima facie case). In this case, Fox states that:
Over the nine years that he worked for American he learned to take breaks (sic) stretch and walk around to avoid pain and stiffness. During, (sic) these walks (sic) Mr. Fox would discuss the pain in his back with other coworkers and receive teasing about being an old fart.
Pl.'s Resp. at 10. Fox also testified in his deposition that on occasion his coworkers would refer to him as "old man." Def.'s App. at 14. Although Fox makes these assertions in the context of his ADA claim, it is incumbent upon the court to review the record taken as a whole. Therefore, the court considers whether these age-related remarks may serve as sufficient evidence of age discrimination.
"[R]emarks may serve as sufficient evidence of age discrimination if the offered comments are: 1) age related; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue." Brown, 82 F.3d at 655. Comments that are "vague and remote in time," however, are insufficient to establish discrimination. Id. On the other hand, specific comments made over a lengthy period of time are sufficient. Id, at 655-56. Fox's evidence regarding the allegedly discriminatory remarks is minimal. In his deposition, Fox stated that he recalled being referred to as an "old man" or "old fart" "[j]ust a couple, three, [or] four times." Def.'s App. at 14. Fox further stated that he could not remember who made the comments, and that they were usually made in a "joking vein." Id, Fox further testified that sometimes he was offended by the statements, but could not specifically recall a time when he was offended by any particular person making such statements. Id. Moreover, there is no indication in the record of when these statements were made, or that they were made at or near the time of Fox's termination. Finally, Fox presents no evidence that these comments were made by Captain Landry, the person who made the decision to terminate him, or by others who had influence or leverage over the official decisionmaker, such as Captain Lewis, Fox's immediate supervisor. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000). Taken as a whole, the court finds that the alleged age-related comments do not show age discrimination towards Fox, and are insufficient as a matter of law to support a finding of a discriminatory discharge.
Fox has wholly failed to point to any evidence in the record which would indicate that his discharge occurred under circumstances that would give rise to an inference that he was a victim of age discrimination. Because Fox has failed to present evidence sufficient to support a prima facie case of age discrimination, his claim under the ADEA fails, and American is entitled to judgment as a matter on this claim.
Having determined that Plaintiff has failed to present a prima facie case of age discrimination, the court finds it unnecessary to address whether American's legitimate, nondiscriminatory reason for terminating Fox was a pretext for age discrimination.
B. Plaintiff's ADA Claim
Fox also contends that he was terminated because of his disability in violation of the ADA. In this regard, Fox makes the following allegations:
4. The plaintiff, David Fox, is a 52-year old military veteran with a 20% disability rating and is a resident of Bedford, Texas.
26. Plaintiff is a disabled veteran and Defendant refused to accommodate or work with plaintiff (sic) disability. Plaintiff worked an average of 50 to 60 hours a week and was paid for only 40 hours. Defendant cites poor management skills and the lack of sound business judgment as grounds for termination. However, the defendant refused to accommodate or transfer plaintiff from this position or investigate if plaintiff's disability was the cause of the alleged grounds for termination.
27. Plaintiff was terminated without following company guidelines or given notice of poor performance. Plaintiff volunteers (sic) to work as a flight attendant in 1993 and won support employee of the quarter. Plaintiff is a dedicated and productive employee who was wrongfully terminated under false pretenses by defendant.
28. Plaintiff has had perfect attendance for nine years and performance reviews state that plaintiff was ready for promotion.
Pl.'s Original Compl. ¶¶ 2, 3 and 4. In response to an interrogatory propounded by American regarding the basis for his ADA claim, Fox stated that he "suffers from arthritis in his right elbow and herniated nucleus pulpusos in his spine. This disability affects his movement and his ability to write or move his right arm." Def. App. at 54. Fox further testified in his deposition that as a result of the herniated disc in his back, he sometimes suffers from back pain and stiffness, and that the arthritis in his elbow sometimes prevents him from fully extending his arm. Id. at 15.
The ADA is an antidiscrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying employment opportunities available to persons without disabilities. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 161 (5th Cir.), cert. denied, 519 U.S. 1029 (1996). The ADA prohibits discrimination against a qualified individual because of a disability "in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
A person may establish a claim of discrimination under the ADA by either presenting direct evidence of discrimination or, when a claim is based on indirect proof, by using the McDonnell Douglas burden-shifting framework. See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999); Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995). Under the McDonnell Douglas analysis, a plaintiff must first establish a prima facie case of discrimination by showing 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 nondisabled person or was treated less favorably than nondisabled employees. See Daigle, 70 F.3d at 396. Once the plaintiff establishes his prima facie case, the employer must articulate some legitimate nondiscriminatory reason for its action. Id. The plaintiff, who ultimately bears the burden of persuasion, must then establish by a preponderance of the evidence that the articulated reason was merely a pretext for unlawful discrimination. See Mclnnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 280 (5th Cir. 2000); Daigle, 70 F.3d at 396.
Defendant contends that Fox's ADA claim fails as a matter of law because he cannot establish his prima facie case under the ADA. Specifically, American contends that Fox cannot establish that he suffers from a disability protected by the ADA. Fox does not address this contention, other than to state in a conclusory fashion that he has a disability; that he can perform the essential functions of the job with or without a reasonable accommodation; that he suffered an adverse employment decision solely because of his alleged disability; and that American knew of his disability and refused to accommodate him. See Pl.'s Resp. at 10.
The ADA defines "disability" as (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. 42 U.S.C. § 12102(2). Plaintiff has failed to present any evidence to create a disputed fact issue as to the existence of a disability.
First, Plaintiff has failed to show that he is disabled because his physical impairment substantially limits one or more of his major life activities. While the ADA does not define the terms "substantially limits" or "major life activities," the regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") provides significant guidance. See Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996). Additionally, the Supreme Court has noted that the term "`substantially' suggests `considerable' or `specified to a large degree," `Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999), and that "[t]he plain meaning of the word `major' denotes comparative importance and suggest[s] that the touchstone for determining an activity's inclusion under the statutory rubric is its significance." Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (citation omitted). The EEOC regulations provide that "major life activities" are "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). "Substantially limits" means 1) unable to perform a major life activity that the average person in the general population can perform, or 2) significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1)(i)(ii); see also Sutton, 527 U.S. at 491.
The summary judgment record is devoid of any evidence which shows that Fox's physical impairment, that is, arthritis in his elbow and herniated disc, substantially restricts him from performing any major life activity. Indeed, Fox testified in his deposition that neither the arthritis in his elbow nor the periodic back pain from his herniated disc prevents him from caring for himself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working. See Def.'s App. at 16-18, and 20. Fox further testified that, other than suffering from periodic pain and stiffness in his back, his physical impairments in no way affected his ability to perform his job duties at American. Id. at 9 and 16. Second, Fox has not presented any evidence demonstrating a record of impairment, or that American regarded him as having an impairment that substantially limited a major life activity. Fox has failed to present evidence establishing that he is disabled, and has therefore failed to raise a genuine issue of material fact as to whether he has established a prima facie case of discrimination under the ADA.
Fox also contends that American failed to reasonably accommodate his disability. Since the court has determined that Fox does not have a disability protected by the ADA, this contention is moot. Moreover, the summary judgment record establishes that Fox never requested an accommodation for his alleged disability. See Def.'s App. at 42. Fox has failed to create a genuine issue of material fact that he suffers from a disability protected by the ADA. Because Plaintiff has failed to establish a prima facie case of discrimination under the ADA, American is entitled to judgment as a matter of law on this claim.
IV. Conclusion
For the reasons stated, Fox has failed to establish a prima facie case under either the ADEA or ADA, or otherwise raise a genuine issue of material fact as to these claims. American is therefore entitled to judgment as a matter of law on each of these claims. Accordingly, Defendant American Airline, Inc.'s Motion for Summary Judgment is granted. Plaintiff's ADEA and ADA claims are dismissed with prejudice, and this action is hereby dismissed. Judgment will be issued by separate document.