Opinion
No. 3:99-CV-0269-D
December 21, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Nancy Price ("Price") sues defendants City of Terrell ("City") and John Rounsavall ("Rounsavall") alleging discrimination and retaliation, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., invasion of privacy, in violation of the United States and Texas Constitutions and Texas common law, and intentional infliction of emotional distress. In a joint motion, the City seeks partial summary judgment or, alternatively, dismissal under Fed.R.Civ.P. 12(b)(6), of all of Price's causes of action except her retaliation claim. Rounsavall moves for summary judgment or dismissal of all claims against him. For the reasons that follow, the court grants the motion.
In her response brief, Price objects to and moves to strike portions of defendants' summary judgment evidence. See P. Br. at 3-7. The court has not relied on any of this evidence in reaching its decision and therefore denied the objections and the motion to strike as moot.
I
Although the summary judgment record contains extensive facts, the court need not recount them at length given the grounds on which its decision is based. In 1990 Price began her employment with the City, working in the Police Department as a dispatcher. She later moved to the Municipal Court, where she served as a court clerk. In 1997 Price and the other court clerk were placed under the direction of Rounsavall, the City Secretary and Finance Director. During the process of changing the system for processing traffic citations and ordinance violations, Rounsavall sent Price several memoranda detailing his new directives. Price viewed some of them as demeaning and otherwise disliked working under Rounsavall's supervision. After several months, she no longer could withstand Rounsavall's hostile treatment and she began to suffer from depression and stress. She ultimately requested and was granted leave under the Family and Medical Leave Act on the diagnosis and recommendation of Paul B. Sobin, M.D. ("Dr. Sobin"), a psychiatrist, Martin A. Lumpkin, Ph.D. ("Dr. Lumpkin"), a psychologist, and her physician, Tyson H. Barnes, M.D. ("Dr. Barnes").When Price returned from leave in August 1997, she presented the City with a release from Dr. Barnes that confirmed that he had examined her and determined that she was ready to return to work beginning August 11, 1997. Although Dr. Sobin did not provide a release for Price upon her return to work, he stated in a November 4, 1997 letter that as of August 11, 1997, Price reported she "was functioning well and had no problems with her medication that would [a]ffect her ability to perform her job]" D. App. 339.
After receiving her first assignment from Rounsavall, however, Price informed him that she was unable to complete it due to her medications. Rounsavall viewed Price's assertion as inconsistent with a full medical release to return to work. After consulting with the City's Personnel Director, he sent Price to the Police Department psychologist, Kay Hale, Ph. D. ("Dr. Hale") for a fitness-for-duty examination. Dr. Hale concluded that Price was able to return to work. Although it is not clear when Rounsavall read Dr. Hale's report, Rounsavall testified that he discussed the report with Dr. Hale. Rounsavall later suspended and then terminated Price's employment.
During Price's employment with the City, Rounsavall determined that it was necessary to place security cameras in certain areas of City Hall. One camera was located in Rounsavall's office, facing the guest chairs. This camera, which was visible to plain view, recorded the images of Price and Rounsavall's assistant during a meeting with Rounsavall. To ensure that the tape was functioning properly, Rounsavall later played back the video to Sgt. Joel Blair ("Sgt. Blair"). During the playback. Police Chief Geoffrey R. Whitt entered Sgt. Blair's office and observed the images on the tape. According to Rounsavall, the audio on the tape either was obscured by air conditioning or was defective. Although Price asserts in her response brief that "the claims of audio nonfunctionality are disputed, " P. Br. at 20 (citing P. App. 215-16), the part of the appendix that she cites does not support this assertion and she has not adduced other evidence to the contrary.
II
Price alleges that the City discriminated against her, in violation of the ADA, by undertaking adverse personnel actions against her, failing reasonably to accommodate her, and wrongfully suspending and then discharging her based upon her disability of major depression and a perceived disability. The City moves for summary judgment on the ground that Price cannot establish the threshold requirement that she is a "qualified individual with a disability."
A
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, Price "must prove that 1) [s]he has a "disability'; 2) [s]he is "qualified' for the job; and 3) an adverse employment decision was made solely because of [her] disability." Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996) (per curiam) (citing Rizzo v. Children's World Learning Cirs., 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 Accordingly, a plaintiff's failure to adduce evidence that would permit a reasonable trier of fact to find that she is disabled within the meaning of the ADA is alone sufficient to require the entry of summary judgment. See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 728 (5th Cir. 1995).
The ADA defines disability as (I) a physical or mental impairment that substantially limits one or more major life activities of an individual, (2) a record of such an impairment, or (3) 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. " The Supreme Court has "explained that [tihe 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." EEOC v. R.J. Gallagher Co., 181 F.3d 645, 654 (5th Cir. 1999) (quoting Bragdon v. Abbott, 524 U.S. 624, 637 (1998) (citation omitted)). Major life activities mean functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2 (i) (1998). "Other major life activities could include lifting. reaching, sitting, or standing." Dutcher, 53 F, 3d at 726 n. 7. 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 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. 29 C.F.R. § 1630.(2)(j)(1)(1998); see also Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999). 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. 29 C.F.R. § 1630.2(j)(2) (1998). The limitation must be significant rather than a mere difference in ability to perform the activity. See Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1998). When considering the impairment's impact on a major life activity, the predicted effects of the untreated impairment are foreclosed from consideration. EEOC v. R.J. Gallagher, 181 F.3d at 653-54 ( citing Sutton, 527 U.S. at 481). The person must be "presently — not potentially or hypothetically — substantially limited in order to demonstrate a disability." Id. at 654; Sutton, 527 U.S. at 481.
Because the City does not have the burden at trial of proving that Price is disabled, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support her claims that she is. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the City does so, then Price must go beyond her pleadings and designate specific facts showing that there is a genuine issue for trial. See id.; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary judgment is mandatory where the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076.
Price's claim is based on the first and third prongs of this definition. She alleges that she suffers from major depression, a mental impairment that substantially limits the major life activity of working, and that the City regarded her as having such an impairment. The City has pointed to the absence of evidence to support Price's assertion that, at the time of the personnel decisions in question, she had such a disability or that the City regarded her as having such a disability. See Ds. Mot. at 2-3; Ds. Br. at 7-12. The burden has therefore shifted to Price to introduce evidence that would permit a reasonable trier of fact to find in her favor.
Although, in her brief, Price appears to assert that she can also meet the second prong, see P. Br. at 9 (citing the three bases for disability under the ADA and asserting that she "fits within any of the foregoing requirements"), Price has not attempted to argue that she meets the second prong and her complaint asserts only the first and third statutory grounds for claiming a disability, see Compl. ¶¶ 4.06-4.07, 5.06. Even if she had alleged the second component, the court would conclude for the other reasons set out in this opinion that a reasonable jury could not find in her favor concerning this component of the definition.
"Although Price refers in her brief to other unspecified major life activities, see P. Br. at 10, and to a one month period in which she could not perform the major life activity of caring for oneself, see id. at 11, her ADA cause of action is based on the major life activity of working, see, e.g., id. at 10 (asserting that her "relationship with Rounsavall interfered with her ability to perform a major life function — working.").
B
The court considers first whether Price has presented a genuine issue of material fact concerning whether she had a disability. Price must adduce evidence that would permit a reasonable jury to find that she had an impairment that "substantially limits one or more of the major life activities[.]" 42 U.S.C. § 12102(2)(A); see Hamilton v. Southwestern Bell Tel. Co., 136 F, 3d 1047, 1050 (5th Cir. 1998).
"In order to establish a substantial limitation on working, the claimant must demonstrate a significant restriction in the ability to perform either a class of jobs or a broad range of jobs in various classes." Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998). Price has not adduced evidence that would permit a reasonable jury to find that at the time of any of the employment decisions about which she complains, her depression substantially limited the major life activity of working. When Price returned from work after a 30-day medical leave, she presented the City with a release signed by her treating physician that indicated she was ready to resume her workplace duties. Furthermore, there is no evidence that any of Price's treating doctors considered her to be suffering from depression at the time of her return to work in August 1997. To the contrary, Dr. Sobin's November 4, 1997 letter stated his agreement with Price that she was "ready to return to her position[.]" Ds. App. 339. Furthermore, Dr. Lumpkin declined to classify her as "disabled." Id. at 170. Because Price has given scant pertinent attention to this issue in her response brief, she has failed to point the court to evidence in the summary judgment record that she contends would support a reasonable finding that her major depression substantially limited her in the major life activity of working.
The City is entitled to summary judgment dismissing Price's claim that it discriminated against her on the basis of a disability.
C
The court considers next whether Price has introduced evidence that would permit a reasonable jury to find that the City discriminated against her because it regarded her as having an impairment that substantially limited her major life activity of working. See 42 U.S.C. § 12102(2)(C). To make out a claim under the "regarded as" prong, "it is necessary that a covered entity entertain misperceptions about the individual. " Sutton, 527 U.S. at 489. Such misperceptions may include "either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Id. "[un order for an employer to have regarded an impairment as substantially limiting in the activity of working, the employer must regard an individual as significantly restricted in the ability to perform a class or broad range of jobs." Sherrod, 132 F.3d at 1121.
Given the City's awareness of Price's diagnosis of depression and leave of absence, and the absence of any other evidence on which Price apparently relies to support her "regarded as" claim, the issue is whether the City mistakenly believed that Price's major depression substantially limited the major life activity of working. Price has not adduced evidence that would support a reasonable jury finding in her favor. To the contrary, the proof would permit a reasonable jury to find only that the City had reason to question whether she was disabled because she had recovered from depression.
Price returned to work with a full medical release signed by her treating physician. Relying on that release, Rounsavall gave her an assignment on her first day back. Price told Rounsavall that she was unable to complete the assignment due to problems with her medication. After Rounsavall sought advice from City's Personnel Director due to the conflict between the physician's medical release and Price's stated inability to perform due to her medications, he referred her to Dr. Hale for an examination to confirm her fitness for the job. A reasonable jury could only find that this referral, far from suggesting that Rounsavall regarded Price as being disabled, represented Rounsavall's effort to obtain professional advice concerning the accuracy of Price's full medical release and any need to address work restrictions.
Because Price has not demonstrated a genuine issue of material fact on the question whether the City regarded her as disabled, the City is entitled to summary judgment.
D
Price also alleges that the City failed to provide her with a reasonable accommodation, as mandated by 42 U.S.C. § 121 12(b)(5).Under the ADA, only individuals with disabilities are entitled to reasonable accommodations. See Weberv. Strippit, Inc., 186 F.3d 907, 916 (8th Cir. 1999), cert. denied, 528 U.S. 1078 (2000); Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp. 465, 475 (ND. Tex. 1997) (Solis, J.). Because Puce cannot recover on her claim that she is disabled, her reasonable accommodation cause of action also fails.
A person who is merely regarded as disabled is not entitled to reasonable accommodation. See Weber, 186 F.3d at 917 ("[W]e hold that "regarded as' disabled plaintiffs are not entitled to reasonable accommodations[.]"); Cannizzaro, 979 F. Supp. at 475 ("[T]he duty to make a reasonable accommodation arises only when the individual is disabled; no such duty arises when the individual merely is "regarded as' being disabled as defined under the ADA."). Even if the court assumes arguendo that individuals who are only regarded as being disabled are entitled to reasonable accommodation, Price still cannot survive summary judgement because she has not demonstrated that the City regarded her as being disabled. Therefore, the court grants the City's motion for summary judgment dismissing Price's reasonable accommodation claim.
III
The City moves for dismissal under Rule 12(b)(6) of Price's invasion of privacy claim under the United States Constitution, contending inter alia that she has not pleaded sufficient grounds for municipal liability. The City also maintains that Price cannot recover damages for a violation of her right to privacy under the Texas Constitution.
Price cannot recover against the City on her Texas common law invasion of privacy claim because the City is entitled to sovereign immunity from such a cause of action. See May 5, 1999 order.
A
Price's federal constitutional invasion of privacy claim against the City is necessarily asserted under 42 U.S.C. § 1983. Price must therefore plead facts that, assumed to be true, establish that the violation in question was the result of a policy, custom, or practice of the City. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). An official policy is either (1) a "policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority," or (2) "a persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Brown v. Bryan County, 219 F.3d 450, 457 (5th Cir. 2000). Under this standard, a municipality is liable only if the policy or custom is attributable to a person with policymaking authority. See Monell, 436 U.S. at 694.Price has not pleaded any set of facts to establish either that the requirement that she undergo an examination by Dr. Hale or the videotaping in Rounsavall's office was undertaken according to policy, custom, or practice. She has not even addressed this issue in her response brief. See P. Br.
The scope of Price's invasion of privacy claim is not entirely clear. In the "Factual Background" section of her complaint, Price alleges that the request that she submit to Dr. Hale's examination "constituted an invasion of Price's right to privacy under the United States and Texas constitutions." Compl. ¶ 3.09. Although she incorporates ¶¶ 3.01-3.12 of her complaint in her invasion of privacy claim, see id. ¶ 8.01, that cause of action is based on Rounsavall's videotaping of Price while she was present in his office Id. at ¶¶ 8.03-8.04. In Price's response brief, however, she refers to the Dr. Hale examination as a basis for her claim. See P. Br, at 21-24. Accordingly, the court will assume that Price rests this cause on both grounds.
B
Price is precluded as a matter of law from asserting a Texas constitutional invasion of privacy claim because Texas does not have a statutory analog to § 1983 and that there is no implied private right of action for state constitutional violations. See Scruggs v. Reinhardt, 1997 WL 148015, at *6 (N.D. Tex. 1997) (Fitzwater, J.); City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995). Accordingly, the City's motion to dismiss this claim is granted.
IV
Price alleges that Rounsavall is liable under Texas common law for invasion of privacy and intentional infliction of emotional distress. Rounsavall moves for summary judgment based on government employee immunity or on the merits of these claims.
For the reasons set out supra at § 111(B), Price cannot recover from Rounsavall under a Texas constitutional claim for invasion of privacy because there is no private right of action. The court therefore addresses only Price's Texas common law invasion of privacy claim.
A
Rounsavall relies on the Texas Tort Claims Act, Tex. Civ. Prac. Rem. Code Ann. § 101. 106 (West 1997), to argue that he is immune from Price's state tort claims. Section 101.106 provides:
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the government unit whose act or omission gave rise to the claim.Id. The court earlier dismissed under Rule 12(b)(6) Price's state-law tort claims against the City for invasion of privacy and intentional infliction of emotional distress. See May 5, 1999 Order. Rounsavall maintains that the court's prior decision bars Price's claims against him individually. Price contends that a Rule 12(b)(6) dismissal is not a judgment under § 101. 106,
"The court in the same order dismissed her claim for punitive damages against the City
Section 101.106 serves the purpose of protecting government employees "from individual liability for acts or omissions where a claim based upon the same facts is made against their employers[.]" Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex.App. 1997, no writ). To fulfill this purpose, § 101.106 precludes claims against a government employee that involve the same subject matter as the action brought against the governmental entity. See Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997). In Jackson v. Dallas Indep. Sch. Dist., 1999 WL 58846, at *5 (N.D. Tex. Feb. 1, 1999) (Fitzwater, J.), aff'd. 232 F.3d 210 (5th Cir. Aug. 23, 2000) (table) (per curiam), this court dismissed under § 101.106 state-law claims for defamation and intentional infliction of emotional distress in favor of individual defendants where it had earlier in the same case dismissed identical claims against a school district defendant. The court therefore holds that its May 5, 1999 Rule 12(b)(6) dismissal order is sufficient to bar Price's intentional infliction of emotional distress and state-law invasion of privacy claims against Rounsavall.
B
Even if Rounsavall is not entitled to immunity, Price's Texas common law invasion of privacy claim fails on the merits. Price acknowledges that the essential elements of an invasion of privacy claim are (I) an intentional intrusion, physically or otherwise, upon another's solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person. See P. Br. (citing Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993)). Assuming arguendo that Price had a reasonable expectation of privacy in Rounsavall's City Hall office, a reason able jury could not find that the playback of the tape — without audio — of her meeting with Rounsavall would be highly offensive to a reasonable person. At most, the playing of the tape indicated that Price had been present in her supervisor's office for a meeting that related to official City business. This fact cannot be deemed to be highly offensive to a reasonable person.
Although Rounsavall did not in his motion focus on the second element of Valenzuela, cf. Ds. Mot. at 5, he did so in his brief, see Ds. Br. at 16-17 (asserting that "[niothing about Price's claim suggests. . . that videotaping of her meeting and its playback under the circumstances would be offensive to the average person.").
As the court explains infra at § V, a reasonable trier of fact could not find that she had a reasonable expectation of privacy.
C
Assuming that Rounsavall is not entitled to immunity, Price's intentional infliction of emotional distress claim also lacks merit. Price alleges that Rounsavall "perpetrated a campaign of harassment" against her, including "(1)the memo writing campaign;(2)the video-taping incident;(3)the fitness-for-duty exam; and(4)false accusations made in furtherance of the rationale for Price's termination." P. Br. 23. Price contends that "Rounsavall's behavior, when viewed as a whole, constitutes utterly indecent, intolerable, atrocious behavior which does exceed the bounds of human decency." Id. at 24. The court disagrees.
To recover on such a cause of action, Price must establish that (1) Rounsavall acted intentionally or recklessly, (2) his conduct was extreme and outrageous, (3) his actions caused her emotional distress, and (4) the emotional distress was severe. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993); see also Stults v. Conoco, Inc., 76 F.3d 651, 658 (5th Cir. 1996). Extreme and outrageous conduct is that which is so extreme in degree, or so outrageous in character, as to go beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993); see also Stults, 76 F.3d at 658. "Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous.'" Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)). "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." McKethan v. Texas Farm Bureau, 996 F.2d 734, 742 (5th Cir. 1993) (quoting Wornick Co., 856 S.W.2d at 734). "The essential ingredient of extreme and outrageous conduct required for such a claim has been narrowly construed in the employment context. " Hagen v. BeautiControl Cosmetics, inc., 1998 WL 355479, at *2 (N.D. Tex. June 30, 1998) (Fitzwater, J.) (quoting Pilarcik v. Silicon Sys., Inc., Civil Action No. 3:91-CV-1935 D, slip op. at 7 (ND. Tex. Apr 21, 1993 (Fitzwater, J.)). Such a construction makes establishing "extreme and outrageous" conduct in the employment context very difficult. See id.
The court holds as a matter of law that Price has failed to adduce evidence that would permit a reasonable jury to find intentional infliction of emotional distress on the grounds on which Price relies. Accordingly, Rounsavall is entitled to judgment as a matter of law dismissing this claim.
V
Rounsavall asserts inter alia that Price's invasion of privacy claim under the United States Constitution fails because she had no reasonable expectation of privacy sitting in Rounsavall's offIce during a meeting in which her work performance as a public employee was being discussed. The court agrees.
"Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis." O'Connor v. Ortega, 480 U.S. 709, 718 (1987) (plurality opinion). The expectation of privacy is measured both subjectively and objectively. Even if the court assumes arguendo that Price had an actual expectation of privacy in Rounsavall's office, she did not have an objectively reasonable one. Rounsavall adduced evidence that installation of the surveillance system at various locations at City Hall was not a secret, that the camera in his office was not hidden, and that he disclosed the existence of the recording equipment to his staff, including Price. It was not objectively reasonable for Price to have an expectation of privacy in a City Hall office that she knew had been equipped with a video surveillance camera that recorded meetings with Rounsavall, Therefore, a reasonable jury could not find in her favor concerning her invasion of privacy claim under the United States Constitution. * * *
The court grants defendants' August 28, 2000 motion for partial summary judgment and to dismiss. This action is dismissed in its entirety against defendant Rounsavall. The court dismisses all of Price's claims against the City except her ADA retaliation cause of action, which remains to be tried.
SO ORDERED.