Summary
noting that "[a]n employer complies with the ADA when it bases its employment decision on objective, reliable evidence of the applicant's work restrictions (i.e. the medical opinion of the applicant's own doctor ")
Summary of this case from Pennucci-Anderson v. Ochsner Health Sys.Opinion
Case No. 00-3780-CIV-MORENO.
February 28, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court upon Defendant's Motion for Summary Judgment (D.E. No. 24), filed on May 16, 2001 .
THE COURT has considered the motion, responses and the pertinent portions of the record, and is otherwise fully advised in the premises. Because the Court finds that Defendant provided a legitimate nondiscriminatory reason and there is no evidence from which a reasonable jury could find pretext, the Court grants summary judgment.
BACKGROUND
Plaintiff Alberto Solorio is suing American Airlines for rescinding a conditional offer of employment as a flight attendant, claiming American discriminated against him because of his HIV+ status. Solorio asserts causes of action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Florida Omnibus AIDS Act, § 760.50 et seq., Fla. Stat., and the Florida Civil Rights Act of 1992, § 760.01 et seq., Fla. Stat.
American Airlines makes several arguments in its motion for summary judgment: 1.) American claims Solorio is not a disabled person under the ADA or the FCRA; 2.) American withdrew its conditional job offer for a legitimate nondiscriminatory reason; 3.) Solorio cannot show that American's reasons are a pretext for unlawful discrimination; and 4.) Solorio is precluded from seeking reinstatement or front pay and his back pay is cutoff because he unreasonably and unjustifiably rejected American's offer to reinstate his conditional job offer.
LEGAL STANDARD
Summary judgment is authorized where there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The party opposing the motion for summary judgment may not simply rest upon mere allegations or denials of the pleadings; the non-moving party must establish the essential elements of its case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The nonmovant must present more than a scintilla of evidence in support of the nonmovant's position. A jury must be able reasonably to find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
FACTUAL BACKGROUND
In September 1999, American Airlines conducted a flight attendant recruitment "open house" in Miami, Florida, which Alberto Solorio attended. American's personnel selected Solorio to participate in further interviews at American's headquarters in Fort Worth, Texas. Solorio attended these additional interviews and at their completion, American made him a conditional job offer contingent on successful completion of language competency exams, a background check, and a standard medical clearance to confirm his ability to perform the physical requirements of the job. The record indicates that American rescinded the offer based on the medical information and not on the results of the language tests or the background check.
The undisputed evidence shows that Solorio submitted to a medical test by American Airlines personnel on October 26, 1999. During that medical test, Solorio disclosed his HIV+ status. In response to this information, American Airlines requested Solorio to supply a certification from his personal physician indicating whether he was able to perform the job duties of a flight attendant. Dr. Albert Canas, Solorio's private physician, wrote the following:
Although Mr. Solorio is HIV+, his health remains fairly intact and I do not foresee any problems up ahead for him. He tolerates his Antiviral medication well and other than extreme situations (i.e. multiple back-to-back travel) should probably not have any restrictions on his duties.
Based on this letter, American's medical department medically cleared Solorio, but with the following restriction: "Needs to avoid multiple back-to-back travel." It is uncontroverted that this was the only information conveyed to the flight recruitment department and to the ultimate decisionmaker, Julie Bourk-Suchman, Manager of Flight Attendant Recruitment.
Bourk-Suchman makes the ultimate hiring decision in cases where a flight attendant candidate is cleared to work with restrictions. While reviewing Solorio's medical clearance and in preparing to make a final determination on his job offer, Bourk-Suchman directed her assistant to verify with the medical department that the restrictions listed for Solorio were intended for him and were issued by his private physician. Before rescinding the offer, the flight recruitment department also requested "insight into the restriction needs to avoid multiple back-to-back travel." In response, the medical department reported that Dr. Canas, Solorio's private physician, imposed the restrictions stating that Solorio was "able to do job other than extreme situations (i.e. multiple back-to-back travel)." No one phoned Dr. Canas for further explanation.
It is undisputed that the medical department never disclosed Solorio's HIV+ status to anyone in the flight recruitment department or to Bourk-Suchman. And, Bourk-Suchman read Dr. Canas' restriction against "multiple back-to-back travel" to mean that Solorio could not travel on consecutive days repeatedly.
After determining the medical restriction imposed by Dr. Canas meant that Solorio could not travel repeatedly on consecutive days, Bourk-Suchman analyzed this restriction in light of the job requirements. The record indicates that new flight attendants enter a group called the "reserve flight attendants," whose duties often require them to fly in unpredictable sequences, often on back-to-back days. During their first two years of duty, flight attendants are on this reserve system, which requires them to be on-call during alternating months. Newly hired flight attendants have little or no control over their own travel schedules due to the collectively-bargained seniority system. As a result, reserve flight attendants are frequently called in to cover trips that take them away from their homes for days at a time with little or no advance warning. Their on-call status repeatedly subjects reserve flight attendants to unscheduled duty.
Plaintiff argues at summary judgment that he never obtained deposition testimony from Americans s Rule 30(b)(6) representatives with respect to the medical requirements of the job. The record indicates that American did provide a Rule 30(b)(6) representative to testify at deposition. And, Plaintiff did not file any motions with the Court to compel the testimony of a different representative. This Court extended discovery in this case and the cutoff was set for April 16, 2001. Plaintiff's opposition memorandum is his first suggestion to this Court that he needs additional time for discovery. At this late stage in the proceedings, such an argument is inappropriate. It remained Plaintiff's obligation under Federal Rule Civil Procedure 56(e) to go beyond his "mere allegations" and to set forth "specific facts showing that there is a genuine issue for trial."
Flight attendants' scheduled travel time is limited only by the mandatory rest periods provided in the Federal Aviation Regulations and the provisions of the Collective Bargaining Agreement between American and the union. It is undisputed that the Federal Aviation Administration limits in-flight time to a maximum of thirty hours a week. Despite these regulations, flight attendants often work through unanticipated "Off-Schedule Operations" ("OSO"). OSO situations frequently cause flight attendants to work in excess of the maximum work periods normally allowed under the Federal Aviation Regulations, a situation provided for in the regulations. These OSO situations occur when there is inclement weather, air traffic congestions, and flight emergencies. In reviewing the job requirements of the position, Bourk-Suchman determined that Solorio's medical restrictions, avoiding multiple back-to-back travel, conflicted with those requirements. Bourk-Suchman then rescinded Solorio's offer in a letter stating that he was not as "competitive" as other candidates.
The record indicates that it was only after this litigation commenced that Bourk-Suchman learned of Solorio's HIV status. Regarding that status and its effect on Solorio, Dr. Canas testified at deposition that the virus had had no limitation on his ability to work, with the exception of an occasional respiratory tract infection, which would keep anyone from work. Though Dr. Canas lacked a job description of the flight attendant position at the time he wrote the letter to American, he testified that he treated many flight attendants and was familiar with the job requirements. He also elaborated on what he meant by "multiple back-to-back travel," stating that he meant that to be an "extreme situation where for some reason he would have to be forced to do an eighteen-hour shift and then turn around and do another eighteen-hour shift. . . . [N]o one should really be subjected to that level of stress." It is undisputed that federal regulations prohibit that amount of in-flight time, with the exception of OSO situations.
During the course of this litigation and after hearing Dr. Canas' testimony on what he meant by "back-to-back travel," Bourk-Suchman reinstated Solorio's conditional job offer, which offer Solorio rejected.
A. Burden Shifting Framework
The Americans with Disabilities Act, enacted in 1990 was designed to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101 et seq. Under the ADA, employers are barred from discriminating against qualified disabled individuals. See 42 U.S.C. § 12112 (a). Numerous plaintiffs with HIV and AIDS have brought claims as qualified disabled individuals to seek redress for discrimination on that basis. See Armen H. Merjian, AIDS, Welfare, and Title II of the Americans with Disabilities Act, 16 Yale L. Pol'y Rev. 373 (1998).
Plaintiff Solorio brings claims under Florida statutory law — the Florida Civil Rights Act and the Florida Omnibus AIDS Act. Substantive liability under these statutes for disability discrimination is coextensive with that under the ADA, and concurrent claims under both statutes are subject to the same analysis. See Goldsmith v. Jackson Mem. Hosp. Pub. Health Trust, 33 F. Supp.2d 1336, 1339 n. 2 (S.D. Fla. 1998) (applying same analysis to ADA and ECRA disability claims); Chockla v. Celebrity Cruise Line, Inc., 47 F. Supp.2d 1365, 1370-71 (S.D. Fla. 1999) (applying ADA analysis to claim under Florida Omnibus AIDS Act in granting summary judgment in favor of Defendant employer).
In ADA cases, plaintiffs bear the burden of establishing a prima facie case of discrimination either by pointing to direct evidence of discriminatory intent, or creating an inference of discrimination through circumstantial evidence. See Chockla v. Celebrity Cruise Lines, Inc., 47 F. Supp.2d 1365, 1369 (S.D. Fla. 1999). Direct evidence is evidence that "establishes discriminatory intent without inference or presumption." Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). Put another way, "[o]nly the most blatant remarks whose intent could only be to discriminate . . . constitute direct evidence." Id. (citing Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989)). Plaintiff Solorio has pointed to no direct evidence to make his prima facie case. Instead, it is undisputed that he relies solely on circumstantial evidence. That is evidence that only "suggests discrimination, leaving the trier of fact to infer discrimination based on the evidence." Id. at 1081-82. American argues Solorio fails to carry his burden of presenting a prima facie case of discrimination through circumstantial evidence.
The Title VII burden shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies when an ADA plaintiff presents inferential claims. Salmon v. Dade County Sch. Bd, 4 F. Supp.2d 1157, 1163 (S.D. Fla. 1998) ("Where an employer disclaims any reliance on the employee's disability in making an employment decision which affects the disabled employee, the burden shifting approach applied in Title VII cases is applicable."). Under the McDonnell Douglas framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination. Combs v. Meadowcraft, Inc., 106 F.3d 1519, 1527-28 (11th Cir. 1997). Once the plaintiff establishes his prima facie case, a presumption is created that the employer unlawfully discriminated against the employee. Id. at 1528. That a plaintiff establishes a prima facie case, however, does not foreclose summary judgment in favor of the defendant employer.
The effect of the presumption of discrimination is to shift to the employer the burden of producing legitimate, nondiscriminatory reasons for the challenged employment action. Id. "To satisfy that burden of production, "[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact" as to whether it was actually motivated by the proffered reasons. Id. (quoting Texas Dep't. of Comm. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)). If the defendant carries its burden of producing legitimate, nondiscriminatory reasons for its decision, the presumption of discrimination is eliminated, and the plaintiff has the opportunity to show that the defendant's proffered explanations are pretextual — meaning that the reasons are not sincere. Id.
B. Prima Facie Case
To make a prima facie case under the ADA, Plaintiff Solorio must prove (1) that he is a disabled person within the meaning of the ADA; (2) that he was qualified to perform the essential job functions of a flight attendant; and (3) that American discriminated against him on the basis of his disability. Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir. 2000). American contends at summary judgment that Solorio cannot meet the first prong of his prima facie case.
1. Does HIV Status Constitute a Disability under the ADA?
The Supreme Court has held that a determination of whether a person is disabled within the meaning of the ADA is an "individual inquiry." It stated:
[t]he definition of disability . . . requires that disabilities be evaluated "with respect to an individual' and be determined based on whether an impairment substantially limits the `major life activities of such individual.' Thus, whether a person has a disability under the ADA is an individualized inquiry.Sutton v. United Air Line, Inc., 527 U.S. 471, 482-84 (1999) (citations ommitted); see 42 U.S.C. § 12102 (2)(A); Toyota Motor Mfg. Kentucky, Inc. v. Williams, 122 S.Ct. 681, 692 (2002) ("Congress intended the existence of a disability to be determined in such a case-by-case manner.").
The Supreme Court has addressed whether HIV+ status is a disability. See Bragdon v. Abbott, 524 U.S. 624, 637 (1998) (holding that HIV+ status was a disability in a lawsuit under Title III of the ADA (public accommodations)). When Bragdon is read together with Sutton's individual inquiry mandate, it is clear that HIV+ status is not a per se disability under the ADA. In fact, the Supreme Court in Bragdon stated that it "need not address whether HIV infection is a per se disability." Bragdon, 524 U.S. at 642. Rather, HIV may cause some individuals to be ADA-disabled, but not all individuals infected will fall into that category.
To support the argument that he is ADA-disabled, Solorio relies on Doe v. Dekalb County Sch. Bd., 145 F.3d 1441, 1445 (11th Cir. 1998) that contains language suggesting that HIV is a per se ADA disability. Doe was an employment case where the Eleventh Circuit dropped a footnote citing Bragdon for the proposition that a person with HIV is "disabled." The Doe litigants, though, did not argue this issue before the Eleventh Circuit and the Eleventh Circuit disposed of the case on other grounds. Because the existence of a disability was not at issue, the Eleventh Circuit did not make the individualized inquiry under Sutton and assumed that the plaintiffs HIV+ status rendered her ADA-disabled. Like the Doe Court, this Court may assume that Solorio's HIV+ status renders him ADA-disabled because even if Solorio can make out the prima facie case, American Airlines has provided a legitimate nondiscriminatory reason for the rescission and no reasonable jury could find pretext from the record before this Court.
C. Legitimate Nondiscriminatory Reason
Basing its decision on the opinion of Solorio's private physician Dr. Canas, American found that a person who cannot fly frequently was not a competitive candidate. The issue, here, appears to be whether American's agent, Julie Bourk-Suchman, was reasonably informed when she made the decision to rescind the offer.
The key inquiry in this context is "whether the employer made a reasonably informed and considered decision before taking an adverse employment action." Lowe v. Alabama Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001) (discussing when an employer may rely on an employee's medical evaluation in making an employment decision). The Eleventh Circuit in Lowe found that an employer does not reasonably rely on the employee's work restrictions where (1) the restrictions were imposed by the company's physician; (2) they were based on a cursory examination of the employee; (3) the restrictions were seventeen-months old; and/or (4) the employee's physician formulated the restrictions based on a stereotypical view of the employee's impairment. Lowe, 244 F.3d at 1306-08.
The facts in Lowe are easily distinguishable and this Court is persuaded that Bourk-Suchman, the decisionmaker here was reasonably informed. The objective evidence here indicates that American relied on the opinion of Solorio's private doctor, Dr. Canas. Bourk-Suchman, unlike the employer in Lowe, rescinded the conditional offer within two months of receiving the letter from Dr. Canas. Moreover, Dr. Canas' letter indicates that the restrictions are based on his evaluation of Solorio's personal limitations and not on a stereotypical view of limitations of HIV+ persons in general. Despite these facts, Solorio contends that American Airlines had an affirmative duty to contact his doctor to find out precisely what he meant. Lowe does not compel such a result and this Court finds that Bourk-Suchman reasonably relied on Dr. Canas' letter.
An employer complies with the ADA when it bases its employment decision on objective, reliable evidence of the applicant's work restrictions (i.e. the medical opinion of the applicant's own doctor), even if that opinion later changes or the employer's understanding of it turns out to be mistaken. See Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 442-44 (6th Cir. 1991) (holding that employer did not violate Rehabilitation Act, 29 U.S.C. § 701, et seq., when it reasonably relied on private physician's letter in deciding to terminate employment). As in Pesterfield, the record here indicates that Bourk-Suchman was reasonably informed and reasonably construed the contents of Dr. Canas' letter to mean that he could not perform the essential job requirements of a reserve flight attendant. Specifically, Bourk-Suchman interpreted no "back-to-back travel" to mean that Solorio could not travel on consecutive days without a day off and that "multiple" meant that he could not do so repeatedly. As previously noted, reserve flight attendants fly on consecutive days up to three times a week with little or no advance notice. They are also subject to OSO situations that would further create unpredictability in his schedule. Thus, it appears reasonable for Bourk-Suchman to find that Solorio's personal restrictions conflicted with the job's requirements.
At issue is whether the ADA triggers an affirmative duty to reasonably accommodate Solorio. This Court finds the ADA does not impose such obligations here. "The burden of identifying an accommodation that would allow a qualified individual to perform the job rests with that individual." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997). The record evidence does not indicate that Solorio ever requested any type of accommodation, much less a reasonable one, that would allow him to work within his medical restrictions.
Solorio argues at summary judgment that he phoned American Airlines and was informed that there were some medical restrictions that could not be discussed with him over the phone. He admits that American Airlines' agent, with whom he spoke, informed him that he should put any request for such information in writing. Even after receiving the letter rescinding the conditional offer, Solorio did not request in writing a more detailed explanation of the medical restrictions his own doctor imposed.
Solorio contends that Bourk-Suchman was not "reasonably informed" when she rescinded the conditional offer because she merely rubber-stamped the decision of the medical department. The record evidence in this case indicates that American's medical department medically cleared Solorio, imposing only the same restrictions as those imposed by his own private doctor. Thus, Bourk-Suchman did not rubber-stamp the medical department's actions because that department cleared him for work.
Solorio also contends that American is creating a "don't ask don't tell" environment by remaining purposefully ignorant of his HIV+ status. This analogy simply does not hold water in the ADA context. That Bourk-Suchman did not know Solorio's HIV status only buttresses the argument that she acted in good faith and without a discriminatory motive. Bourk-Suchman did not conclude that Solorio was physically incapable of doing the job by speculating about what his capabilities were based upon any diagnosis. Rather, without knowing his HIV status, Bourk-Suchman considered only Solorio's work restrictions as reported by his doctor and compared them to the physical requirements of the flight attendant position. Consequently, Bourk-Suchman's undisputed basis for evaluating Solorio's job capabilities was an objective report of Solorio's personal limitations, rather than some stereotypical perception of the restrictions generally associated with Solorio's impairment, HIV. This is precisely the non-stereotypical approach toward evaluating the capabilities of job applicants that the ADA was designed to encourage. See 42 U.S.C. § 12101 (a)(7).
D. Pretext
Because this Court finds that American Airlines articulated a legitimate nondiscriminatory reason for its decision to rescind the conditional job offer, the burden shifts to Solorio to show that reason is a pretext. See Combs, 106 F.3d at 1528. Solorio provides this Court with several theories of pretext. These theories are not based on competent evidence to support a finding that American's legitimate reasons are merely a pretext for disability discrimination.
First, Solorio argues the strongest evidence of pretext is the inconsistent position that Bourk-Suchman has taken. He argues that Bourk-Suchman's letter stated that Solorio was "not as competitive" as other candidates and at deposition she stated that his offer was rescinded because his physician imposed a restriction on multiple back-to-back travel. These two statements are not logically inconsistent. Rather, the letter was not as specific as Bourk-Suchman's deposition testimony. Even if Bourk-Suchman's position was inconsistent, the inconsistency does not rebut the legitimate nondiscriminatory reason that Solorio was not hired because the medical restrictions his own doctor imposed conflicted with the job's requirements.
In a further attempt to establish pretext, Solorio relies on a consent decree from a case in the Northern District of Texas, citing it as admissible evidence that American has rescinded offers from other HIV+ applicants. The consent decree, however, is not admissible under Federal Rule of Evidence 408, which excludes evidence of settlements, and under its express terms. The decree states that it "shall not be admissible as evidence in any form for any reason other than to enforce its terms." That decree, therefore, is not competent evidence establishing pretext.
Solorio also asserts that the temporal proximity, the two months between his disclosure of his disease and the rescission, is evidence of pretext. While this evidence is admissible, it does not rebut the legitimate nondiscriminatory reason set forth by American that she was not aware of the reasons why he could not perform "multiple back-to-back travel," but only that it was based on some medical reason that his doctor had identified to the medical department. And, that medical restriction conflicted with the job requirements. This Court concludes that Solorio failed to produce sufficient evidence to convince a reasonable jury that American's proferred reason for rescinding the job offer was a pretext for discrimination and summary judgment is therefore appropriate. See Wascura v. City of S. Miami, 257 F.3d 1238, 1247 (11th Cir. 2001) (affirming summary judgment when plaintiff failed to provide sufficient evidence to convince reasonable jury that proferred reason was a pretext for discrimination).
Because this Court finds that summary judgment should be granted in favor of Defendant American Airlines, this Court need not reach the issue of whether Solorio unreasonably rejected American Airlines' reinstated job offer. See generally Lewis v. Fed Prison Indus., Inc., 953 F.3d 1277, 1279-81 (11th Cir. 1992) (holding that rejection must be reasonable, i.e., that returning employee to work environment would cause substantial harm to employee).
CONCLUSION
For the reasons stated above, it is
ADJUDGED that summary judgment is GRANTED in favor of Defendant.