Opinion
Civ. No. 99-0285, SECTION "K" (1).
February 8, 2000.
ORDER AND REASONS
Before the Court are a Motion for Summary Judgment filed by defendant Hibernia Corporation d/b/a Hibernia National Bank ("Hibernia") filed on September 15, 1999 (Doc. 7) and a second Motion for Summary Judgment filed by Hibernia on October 19, 1999. (Doc. 18). In its first motion, Hibernia seeks judgment against plaintiff, Brenda Lajaunie ("Lajaunie") with respect to her claim under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), her claim for intentional infliction of emotional distress and negligent infliction of emotional distress in an employment context. In the second motion, Hibernia, in the alternative, seeks summary judgment on her "constructive discharge" claim. Having reviewed the pleadings, memorandum, exhibits, deposition testimony and the relevant law, the Court finds that judgment must be entered against plaintiff with respect to all of her claims for the reasons that follow.
I. Background
Brenda Lajaunie was a peak-time teller at the Chateau Branch of Hibernia since approximately 1990. (Plaintiff's Exh. "A", Lajaunie Dep., p. 15) (hereinafter "Lajaunie Dep."). As a peak-time teller, as the name would indicate, she worked peak hours to cover high volume; the position was "part-time" in nature. (Lajaunie Dep. at 16).
In 1983, prior to her being hired by Hibernia, she was diagnosed with an irregular cornea. She was treated by her optician for a number of years, with glasses helping the situation. During that period she was able to drive, watch movies, read books, look at a computer screen and a calculator. (Dep. of Lajaunie at 38-39).
By the early 1990's, she testified when looking at an object that it was as if she were looking out of one eye through water and the other eye through fog. Nonetheless, she was still able to drive, read books, and watch movies. She did stop sewing and doing 3-D puzzles. (Lajaunie Dep. at 41-43). Because of her condition, she was referred to the Straus Eye Center and was first seen by Dr. Singer on October 17, 1995. At that time she was diagnosed with "Fuchs' corneal dystrophy" which is a disease of the cornea. It is described in the National Institutes of Health, National Eye Institute Fact Sheet as follows:
Fuchs' dystrophy is a slowly-progressing disease that usually affects both eyes and is slightly more common in women that in men. . . . Fuchs' dystrophy occurs when endothelial cells gradually deteriorate without any apparent reasons. . . . As more endothelial cells are lost over the years, the cornea becomes less efficient at pumping water out of the stroma. This causes the cornea to swell and to distort vision. Eventually, the epithelium also takes on water, resulting in great pain and severe visual impairment.
Epithelial swelling damages vision in two ways: (1) changing the cornea's normal curvature, and (2) causing a sight-impairing haze to appear in the tissue. Epithelial swelling will also produce tiny blisters on the corneal surface. When the blisters burst, they are extremely painful.
(Plaintiff's Exh. C, p. 7). Corneal transplantation is considered a proper remedy and "the short-term success rate of conical transplantation is quite good for people with Fuchs' dystrophy."Id.
In 1996, Lajaunie's condition became worse. (Lajaunie Dep. at 43). On February 24, 1997, a little more than a year after her initial consultation, an attempt was made to quantify the endothelial cell count; however it was impossible because of the "advanced corneal disease." (Exh. K, Report of Dr. Straus at 1) ("Straus Report"). Lajaunie was referred to Dr. Straus for consideration of a cornea transplant. On February 27, 1997, Lajaunie was first seen by him. She complained at that time that she could not see clearly with any prescription, and she complained of glare and decreased distance vision. Nonetheless, her visual acuity was still correctable to 20/30 in both eyes, Straus suggested that she defer surgery and limit her driving to daytime only.
On March 27, 1997, Dr. Straus issued a letter addressed "To whom it may concern" stating that Lajaunie had Fuchs' conical dystrophy which causes decreased visual acuity and increased glare dysfunction. Straus noted that her care was ongoing as it constitutes a chronically progressive problem. In that letter, however, no mention of any restrictions was made and no accommodations were requested. (Plaintiff's Exh. "B").
By July 24, 1997, her glare dysfunction was marked. She was unable to see the 20/400 line of the Snellen chart, i.e., "the big E" in either eye. However, her visual acuity was could still be improved with a change in her glasses prescription (Straus Report at 1). In a letter dated August 14, 1997, Straus wrote to her referring doctor that she was having increased problems with distance vision and glare. She complained that she could not tell the color of traffic lights and that she is "contact lens intolerant" and that she "cannot see" with glasses. Straus then performed a cornea transplant on her right eye on September 29, 1997. On September 29, 1997, Straus issued a note that she could return to work on October 2, 1997. The printed note had boxes to note "restrictions", "light work until" and "return to full activity". None were checked. This doctor's note was presented to Hibernia. Lajaunie returned to work on October 2, 1997.
Although there were some post-operative problems, by December 15, 1997, her visual acuity with her contact lens in the right eye was 20/20. She had some problems with corneal rejection in January of 1998; however, according to Dr. Straus, by Feb. 2, 1998, she was showing signs of marked improvement and the frequency of her eye drops was decreased. (Straus Report at 2). In the doctor's notes of his examination of her on February 2, 1998, he wrote, "[Lajaunie] states, 'It's driving me crazy. I can hardly see to work.' 'Would it be possible for me to get a letter for work telling them I have trouble seeing.'" The Court would note that this notation does not mention glare, and apparently no note was ever issued.
By February 26, 1998, her "corrected visual acuity in her right eye had returned to 20/20. Her cornea transplant was clear. She had no signs of rejection." (Report of Strauss at 2).
While Lajaunie's deposition testimony was somewhat conflicting as to when she contends she first informed Hibernia of her condition, she testified that she informed her managers of her problem with glare as early as 1996. (Lajaunie Dep. at 45-46). Lajaunie also contends that she requested a cut-back in hours and to be moved from the drive-up teller position because of the glare, but that Hibernia would not accommodate her. She also maintains that Hibernia knew she had trouble driving because of her condition. She also contends that during the month of April of 1998 she complained about the situation with her eyes. (Lajaunie Dep. at 92-93). However, at no time did she ever bring Hibernia a note from her doctor showing any restrictions. Her reason was that Hibernia did not ask for one. (Lajaunie Dep. at 85-87).
On May 8, 1998, she was advised that her position was being eliminated and that she was being transferred to the Kenner branch, four miles (as opposed to two miles) from her home. Lajaunie testified that six people had been hired to work at the Chateau Branch and that in retrospect she did not believe that her job was actually eliminated. She opined in her deposition that she believed that they did not want her there because of her complaining about the glare. She did not accept the offered position in Kenner "because the teller's windows face the front door which is from the ceiling to the floor and it is all glass", and thus there would be another glare problem. (Lajaunie Dep. at 94). This decision was based her recollection having cashed checks at that branch approximately four times over a period of time.
It must be noted that Lajaunie did not contact Dr. Straus' office from February 26, 1998 until May 14, 1998, six days after she left Hibernia. On the fourteenth of May, she spoke with an Ophthalmic technician. She "explained that she was having problems with glare when sitting at the drive-up window in the bank at which she worked. Ms. Lajaunie asked about the protocol for obtaining medical records and this was explained." (Straus Report at 2).
After leaving Hibernia, Lajaunie took a few months off, and then applied for and obtained a job as "soft count attendant" with the Treasure Chest casino, a job she enjoys and can perform without difficulty. (Lajaunie Dep. at 109).
In an affidavit presented in opposition to the motion for summary judgment, she avers that the only way she passed her driving license test 1997 was by memorizing the eye chart letters by listening to the people in front of her in line. In this affidavit she further avers that since 1997, she does not go outdoors unless she is going from one indoor place to another. She is "blinded" by sunlight. She cannot garden; she cannot ride her bicycle. She continues to drive, however, only to work and to the doctor. She also claims to now have problems reading, even with glasses, and she "can no longer do cross word puzzles and read like I used to."
As to Lajaunie's present condition, Dr. Straus in his expert report summarizes it as follows:
In summary, Ms. Lajaunie has been under our care for Fuchs' corneal dystrophy since October 17, 1995. She is status post penetrating keratoplasty in the right eye September 19, 1997 and repair a wound leak in the right eye September 24, 1997.
Ms. Lajaunie has severe Fuchs' corneal dystrophy in her left eye with marked glare dysfunction, as documented July 24, 1997. This eye has not undergone cornea transplantation, as yet, and while cornea transplantation often reduces glare problems, it rarely eliminates them completely.
Although being forced to work in a glare environment does not cause ocular damage to a patient with Ms. Lajaunie's condition, it certainly could be extremely uncomfortable and quite distracting.
(Straus Report p. 3).
II. Standard for Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that 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). The party moving for summary judgment 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. Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied);Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Finally, the court notes that the substantive law determines materiality of facts and only "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 court now turns to the merits of the arguments with these standards in mind.
III. The ADA Claim
a. Ms. Lajaunie is Not "Substantially Limited" in the Major Life Activity of Seeing
To make out a prima facie case of discrimination under the ADA, a plaintiff must show that
(a) she has a disability;
(b) she is a qualified individual for the job to which she is applying; and
(c) that an adverse employment decision was made solely because of her disability.Still v. Freeport-McMoran, Inc., 120 F.3d 50 (5th Cir. 1997),citing Rizzo v. Children's World of Learning Centers, Inc., 84 F.3d 758 (5th Cir. 1996). Under the ADA:
The term Disability is defined under the ADA as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). A physical impairment within the meaning of the Act as interpreted by the Equal Employment Opportunity Commission ("EEOC") is defined as "[a]ny physiological disorder, or condition . . . affecting one or more of the following body systems: . . . special sense organs." 29 C.F.R. § 1630.2(H)(1) (1999). Furthermore "seeing" has been recognized as a "major life activity." 29 U.S.C. § 1630.2(i). Thus, the issue becomes whether Lajaunie's vision impairment caused by Fuchs' corneal dystrophy, in particular — her inability to tolerate glare — "substantially limits" Lajaunie's seeing.Albertsons. Inc. v. Kirkingburg, 199 S.Ct. 2162, 2167-68 (1999). Lajaunie relied on the Albertsons decision of the Ninth Circuit in her brief, however, the Supreme Court rejected that court's analysis.
In Albertsons the Supreme Court "assumed" that the EEOC's regulation and interpretive guidance with regard to the ADA's definition section are valid; however, the Court did not decide what level of deference, if any the guidelines are due. Indeed inSutton v. United Air Lines, 119 S.Ct. 2139 (1991) they were critical of those guidelines in that under ADA, "a 'disability' exists only where an impairment 'substantially limits' a major life activity, not where it 'might', 'could or would be substantially limiting if mitigating measures were not taken'"Id. at 2147. Furthermore, the Court noted that this inquiry is an highly individualized one. Id. This Court has taken these directives into account in its approach to the subject motion.
In Albertsons, a former employee was fired from his job as a truck driver after he failed to meet the Department of Transportation's basic vision standards. He suffered from amblyopia, an uncorrectable condition that rendered him with 20/200 vision in his left eye and monocular vision in effect. He was not rehired even though he eventually had obtained a waiver of the DOT standards. As a result, he brought suit against his former employer under the ADA. The district court granted summary judgment for the former employer; however the United States Court of Appeals for the Ninth Circuit, reversed finding that he was "substantially impaired" in his ability to see. The Supreme Court characterized the Ninth Circuit's action as follows:
In giving its affirmative answer, the Ninth Circuit relied on a regulation issued by the Equal Employment Opportunity Commission, defining "substantially limits" as "[s]ignificantly restrict[s] as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity." § 1630.2(j)(ii). The Ninth Circuit concluded that "the manner in which [Kirkingburg] sees differs significantly from the manner in which most people see" because, "[t]o put it in its simplest terms [he] sees using only one eye; most people see using two." 143 F.3d at 1232. The Ninth Circuit majority also relied on a recent Eight Circuit decision, whose holding it characterized in similar terms: "It was enough to warrant a finding of disability . . . that the plaintiff could see out of only one eye: the manner in which he performed the major life activity of seeing was different." Ibid. (characterizing Doane v. Omaha, 115 F.3d 624, 627-628 (1997)).Id. at 2168. The Supreme Court rejected this approach. "Different" is not sufficient.
By transforming "significant restriction" into "difference," the court undercut the fundamental statutory requirement that that only impairments causing "substantial limita[ions]" in individuals' ability to perform major life activities constitute disabilities. While the Act "addresses substantial limitations on major life activities, not utter inabilities," . . . it concerns itself only with limitations that are in fact substantial.Id. (emphasis added). The key to the determination is whether the limitation an individual with an impairment actually faces is in fact substantially limiting. Sutton v. United Air Lines. Inc., 119 S.Ct. 2139, 2149 (1999).
Recently, the Fifth Circuit has address the issue of substantial limitation in the major life activity of seeing in the aforementioned Still case and Robinson v. Global Marine Drilling Co., 101 F.3d 35 (5th Cir. 1996). In Still, the plaintiff was blind in one eye. He was hired as a safety equipment clerk in 1988. In 1993, he was transferred to Freeport's Caminada Mine. Freeport ceased all operations at Caminada on March 15, 1994, and job transfers were offered to 55 employees; 39 employees were laid off. Still was offered a transfer to another facility to work as an outside rig worker. However because of his being blind in one eye, he felt the position was too dangerous. As a result he was discharged. Still contended that the discharge violated the ADA.
The Fifth Circuit found that Still's sight was not "substantially limited." It noted that there was no dispute that Still's remaining eye functioned normally; however, his peripheral vision is limited. He drove cars, motorcycles, and was a certified marksman. The Court found that he offered no evidence that he was unable to engage in any usual activity. As such, Still's claim failed. Still, 120 F.2d at 52.
Likewise, in Robinson, the Court found that a person with asbestosis who experienced occasional shortness of breath while climbing stairs did not rise to the level of substantially limiting the major life activity of breathing. Robinson v. Global Marine Drilling Co., 101 F.3d 35 (5th Cir. 1996). The court stated:
As noted above, breathing is a major life activity, while "[c]limbing" is not such a basic, necessary function and this court does not consider it to qualify as a major life activity under the ADA. Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 n. 2 (5th Cir. 1996) Several instances of shortness of breath when climbing stairs do not rise to the level of substantially limiting the major life activity of breathing. It is important to note that Robison offered no medical expert testimony. The only evidence regarding his asbestosis and its effects came from the plaintiff himself.Id. at 37.
While the case at bar may not be as devoid of support for a finding that Lajaunie is disabled as the record in Robinson, the Court finds that her sight is not "substantially limited." The Court recognizes that she can no longer work in the garden, ride a bicycle and do crossword puzzles; however, she drives, works, reads and apparently leads a life in which she substantially sees most things. It is clear that glare causes her problems; however, these difficulties do not substantially limit her sight in that she is not materially hampered, particularly at the time of her leaving Hibernia. The most telling support for this proposition is her own doctor's report which states unequivocally with respect to glare: "Although being forced to work in a glare environment does not cause ocular damage to a patient with Ms. Lajaunie's condition, it certainly could be extremely uncomfortable and quite distracting." (Straus Report at 3). Lajaunie reads, drives, recreates and works. To find that she is "substantially limited" in seeing under the principles of the ADA would dilute the meaning of "substantially limited" to simply "limited." Being potentially uncomfortable and distracted does not equal a "substantial limitation" for purposes of the ADA and as such Lajaunie's claim under the ADA must be dismissed.
b. Ms. Lajaunie is Not "Substantially Limited" in the Major Life Activity of Working
Although the primary emphasis in the briefing was whether plaintiff was substantially limited in the major life activity of "seeing," there is also a contention that she is substantially limited in the major life activity of working. As stated, plaintiff has been working as a "soft count" teller for the Treasure Chest Casino. Plaintiff has not demonstrated that she is unable to perform a class of jobs or a broad range of jobs.Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). Lajaunie alleges she was unable to perform a single job — drive-up teller — due to her problems with glare. She has not contended she could not perform as a teller in another location. There is no medical evidence indicating she cannot work as a teller. She was released by her own physician to return to work without restrictions. She is presently counting money and entering data into a computer. She is not substantially limited in the major life activity of working. Still, supra; Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995).
IV. Intentional/Negligent Infliction of Emotional Distress
Lajaunie has also brought a claim for intentional infliction of emotional distress or in the alternative for negligent infliction of emotional distress. With respect to the latter, it is beyond cavil that no cause of action for negligence infliction of emotional distress is recognized in the context of the workplace. Louisiana's worker's compensation statute provides the exclusive remedy for an employee injured by the negligent acts of her co-employees or employer. White v. Monsanto, 585 So.2d 1205, 1208 (La. 1991). See La. rev. Stat. Ann. § 23:1032; Vallery v. Southern Baptist Hosp., 630 So.2d 861, 863 (La.App. 4th cir. 1993) writ denied 634 So.2d 860 (La. 1994).
With respect to a cause of action for intentional infliction of emotional distress, the definitive case outlining such a claim is White v. Monsanto Co., 585 So.2d 1205 (La. 1991). The Louisiana supreme court held that in order to recover for intentional infliction of emotional distress, a plaintiff must establish "(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result form his or her conduct." Id. at 1209.
The Louisiana supreme court then described the conduct necessary to prevail as follows:
The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Not every verbal encounter may be converted into a tort: on the contrary, "some safety valve must be left through which irascible tempers may blow off relatively harmless steam." Restatement, supra, commented, § 46; Prosser and Keaton, The law of Torts, § 12, p. 59 (5th ed. 1984).White at 1209. With the evidence presented, this Court finds that no reasonable jury could find Hibernia's alleged conduct meets such a standard. Simply put, Hibernia's actions do not reach the level of being "utterly intolerable in a civilized community." Thus, Hibernia's motion for summary must be GRANTED in that regard as well. Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed by Hibernia Corporation d/b/a Hibernia National Bank ("Hibernia") on September 15, 1999 (Doc. 7) is GRANTED and a second Motion for Summary Judgment filed by Hibernia on October 19, 1999. (Doc. 18) is rendered MOOT by virtue of the granting of the first motion.
New Orleans, Louisiana, this 7th day of February, 2000.