Summary
holding that "a mild limp brought about by residual leg weakness, which inhibited" plaintiff's ability to "walk long distances or long periods of time" and to "go up and down stairs for long periods of time" was not a disability under the ADA
Summary of this case from Williams v. AT&T, Inc.Opinion
Civil Action No. 3:01-CV-2050-M
July 16, 2002.
MEMORANDUM ORDER OPINION
On April 30, 2002, Defendant filed a Motion for Summary Judgment. Plaintiff did not respond to this Motion. Having considered the Motion, the Court is of the opinion that it should be GRANTED.
The parties agreed to an extension of the deadline for Plaintiff to respond to Defendant's Motion for Summary Judgment until June 10, 2002. However, as of the date of this Opinion, Plaintiff has not submitted a Response.
I. Background
On June 9, 1997, Plaintiff Cathy E. Martin commenced her employment as the on-site Property Manager at Oak Run Apartments, located in Addison, Texas. Until Fall 1998, Insignia managed the apartment complex. In October or November 1998, Defendant AIMCO Properties acquired Insignia. On January 13, 1998, Martin had brain surgery performed to remove a non-malignant brain tumor. In her Petition, Plaintiff alleges that the surgery left her partially paralyzed on her left side, a condition that substantially impaired her ability to walk. Thus, she avers that, upon returning to work in April 1998, she "requested a reasonable accommodation to assist her in performing the essential functions of her job." However, Martin complains that Defendant refused her request and "failed to engage in any meaningful discussions with Plaintiff concerning an accommodation for her disability." Plaintiff alleges that, instead of attempting to accommodate her condition, Defendant "engaged in ongoing and continuing discriminatory behavior toward" her, "which culminated in her unlawful termination on May 17, 1999."
On February 7, 2001, Plaintiff filed suit against AIMCO, a Delaware limited partnership with its principal office in Denver, and Oak Run L.L.C. ("Oak Run"), a Texas-based corporation, in state court. Plaintiff alleged that AIMCO and Oak Run violated two provisions of the Texas Commission on Human Rights Act (TCHRA): Section § 21.051 of the Texas Labor Code, which provides that "[a]n employer commits an unlawful employment practice if because of . . . disability . . . the employer: (1) . . . discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment;" and § 21.128(a) of the Labor Code, which provides that
[i]t is an unlawful employment practice for a respondent . . . to fail or refuse to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability who is an employee or applicant for employment, unless the respondent demonstrates that the accommodation would impose an undue hardship on the operation of the business of the respondent.
TEX. LABOR CODE ANN. §§ 21.051, 21.128(a) (Vernon 2002). Martin averred that the Defendants "discriminated against Plaintiff and discharged Plaintiff from her employment," and "failed or refused to make a reasonable workplace accommodation to Plaintiff's known physical limitations." On August 15, 2001, Oak Run moved for summary judgment. By order dated September 14, 2001, the court granted Oak Run's motion. Shortly after, on October 11, 2001, AIMCO removed the case to federal court on diversity grounds.
II. Analysis
AIMCO explains in its Motion that it is entitled to summary judgment on Plaintiff's TCHRA claims because Martin cannot demonstrate that she was disabled within the meaning of § 21.002(6) of the Labor Code, and even if she is disabled, she cannot show that she sought a reasonable workplace accommodation or that AIMCO terminated her employment for illegitimate, discriminatory reasons related to her alleged disability.
1. Was Plaintiff Disabled within the Meaning of § 21.002 of the Texas Labor Code?
Section 21.002(6) of the Texas Labor Code defines "disability" as "a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such an impairment, or being regarded as having such an impairment." Id. § 21.002(6). In interpreting the disability discrimination provisions of the TCHRA, "Texas courts generally look to most closely analogous provisions of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101-12213." Kiser v. Original, Inc., 32 S.W.3d 449, 452 (Tex.App.-Houston [14 Dist.] 2000, no pet.). Consistent with the federal regulations construing the ADA, Texas courts have found that major life activities include "`caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" Union Carbide Corp. v. Mayfield, 66 S.W.3d 354 (Tex.App.-Corpus Christi 2001, no pet.) (quoting 29 C.F.R. § 1630.2 (i)). The Code of Federal Regulations prescribes that "substantially limits" means
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) 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 that same major life activity.29 C.F.R. § 1630.2 (j)(1). In determining whether an individual is substantially limited in a major life activity, Texas courts consider, inter alia, "the nature and severity of the impairment." Union Carbide, 66 S.W.3d at 360 (citing 29 C.F.R. § 1630.2 (j)(2)).
Once a Defendant has raised a question as to whether Plaintiff has a disability, it is the Plaintiff's burden to present evidence substantiating the disability. E.E.O.C. v. Exxon Corp., 124 F. Supp.2d 987, 994 (N.D. Tex. 2000). As Plaintiff has not filed a Response to Defendant's Motion, and the only evidence before the Court establishes that Plaintiff does not have a disability under the TCHRA, does not have a record of a disability, and was not regarded as having a disability, the Court concludes that no issue of material fact exists as to that threshold issue, and Defendant's Motion on both TCHRA claims should therefore be GRANTED.
Plaintiff alleged in her Petition that the removal of her brain tumor caused partial paralysis on her left side that impaired her ability to walk. Walking is, of course, a major life activity. However, Plaintiff has not shown that her impairment substantially limits her ability to walk. The evidence presented by Defendant establishes that Plaintiff's impairment after she returned to work consisted only of a mild limp brought about by residual leg weakness, which inhibited her ability to "walk long distance[s] or long periods of time" and to "go up and down stairs for long periods of time." Plaintiff's Depo. at 96, 101. Although Plaintiff claims to be limited in these ways, these claims of disability are not substantiated by any medical evidence proffered by Plaintiff. In fact, Plaintiff admitted during her deposition that her doctor did not place her under any particular restrictions as of the time she returned to work after her surgery. Id. at 78; Defendant's Exh. 7 (note from Plaintiff's doctor allowing her to return to regular work duties, without restrictions). Although Plaintiff testified that she at times used a cane to improve her balance and for support, Plaintiff has proffered no medical testimony from her doctors to show that the cane was medically necessary.
In fact, Plaintiff admitted that, as of November 1998, her doctor "was mad because I was walking with a cane," and asked her why she felt she still needed to walk with a cane. Plaintiff's Depo. at 113.
In a case in which the Plaintiff experienced similar physical difficulties, the Fifth Circuit concluded that the Plaintiff's impairment did not substantially limit the activity of walking. See Talk v. Delta Airlines, Inc., 165 F.3d 1021 (5th Cir. 1999). In Talk, the plaintiff, an airline employee, alleged disability discrimination under the ADA and TCHRA. Her claimed disability was a limp caused by a childhood injury to her right leg, which resulted in her right leg being shorter than her left, and her right foot being in a permanently flexed position. Id. In determining whether Talk's injury constituted a disability, the Fifth Circuit explained, "[w]e have found few cases defining what constitutes a substantial limitation on a person's ability to walk. It is clear, however, that moderate difficulty experienced while walking does not rise to the level of a disability." Id. Although the plaintiff asserted that she "walk[s] with a limp and move[s] at a significantly slower pace than the average person," the court concluded that, "although Talk experiences some impairment in her ability to walk, it does not rise to the level of a substantial impairment as required by the ADA and TCHRA." Id.
The Court finds the case at hand similar to Talk, in that both involve individuals who are hampered in their ability to walk, but not severely so. Although Martin may not be able to walk or climb stairs for extended periods of time without resting, the Court finds, consistent with the Fifth Circuit's determination in Talk, that such impairments does not rise to the level of a substantial limitation upon the ability to walk.
Furthermore, the Court finds that Plaintiff has not established that she is substantially limited in her ability to work. A substantial limitation in the ability to work is one that "significantly restrict[s] the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation. . . ." 29 C.F.R. § 1630.2 (j)(3)(i). No evidence in the record suggests that Plaintiff's impairment significantly affected her ability to perform the job she had with Defendant. In fact, in Plaintiff's deposition, she explained that
[t]he way I handled [the job] made it not difficult because I would do what I needed to do. In other words, inspecting apartments or walking property, I would do it on the weekend, on Saturday, on Sunday or in the evening, but I did it . . . in spurts to where I was able to rest in between. So I made it work for my schedule.
Plaintiff's Depo. at 114. Furthermore, when she was asked by her supervisor whether she could perform her duties, Plaintiff replied, "yes, yes, I can." Id. at 81. Thus, Plaintiff has not established that she was substantially limited in her ability to perform the job she held, much less an entire class of jobs.
Last, Plaintiff has put forth no evidence substantiating that she has a record of a disability, or that her employer regarded her as having a disability. In short, Plaintiff cannot survive summary judgment on her TCHRA claims because she has not created a genuine issue of material fact as to whether she is disabled.
2. Did Defendant Fail to Make a Reasonable Accommodation?
Even assuming, arguendo, that Plaintiff presented a prima facie case of her disability, no evidence in the record shows that Defendant failed to make a reasonable accommodation for her disability in contravention of § 21.128(a). First, there is no evidence that Plaintiff requested a reasonable accommodation, other than one instance in which Plaintiff asked her supervisor if they could hire another individual to perform some of Plaintiff's tasks, such as walking around the property to perform inspections of apartments. Id. at 81-83. Plaintiff claimed in her deposition that the Texas Rehabilitation Commission, and not the Defendant, would have paid the assistant to help Martin. Id. Plaintiff's supervisor refused Martin's request. Id.
The Court finds that such an accommodation would not have been reasonable. As the Fifth Circuit has explained, "[t]he ADA does not require an employer to eliminate or reallocate essential functions of a position in order to provide accommodation." Bradley v. Univ. of Tex. MD. Anderson Cancer Ctr., 3 F.3d 922, 925 (5th Cir. 1993). Similarly, the Southern District of Texas has stated, "[i]t is not reasonable to require an employer to have two people doing one person's job in the name of accommodation. Assistance is one thing, but performing a significant portion of the essential functions of another person's job is another thing altogether." Hershey v. Praxair, Inc., 969 F. Supp. 429, 435 (S.D. Tex. 1997). Martin requested Defendant to reallocate essential functions of her job, such as walking the premises, to another person. Consistent with the reasoning of the Bradley and Hershey courts, this Court finds that Plaintiff's request of Defendant was not reasonable, and therefore Plaintiff's § 21.128(a) claim must fail.
Although Plaintiff explained in her deposition that a golf cart was on the premises for use by the leasing staff when they were showing apartments to prospective residents, Plaintiff stated that she never asked anyone at AIMCO if she could be provided with another golf cart for her use. Plaintiff's Depo. at 98.
3. Did Defendant Discharge Plaintiff Because of Her Disability?
Finally, even if Plaintiff had a disability, the Court must grant summary judgment in favor of Defendant on Plaintiff's § 21.051 discriminatory discharge claim, as Martin has not presented evidence that Defendant discharged her because of her disability. The only evidence in the record reveals that, prior to Plaintiff's termination on May 17, 1999, Plaintiff was issued two written warnings because of her alleged failure to market the Oak Run apartments and address the high number of upcoming available apartments on the property. Plaintiff's Depo. at 118. The first Reprimand/Termination Report, issued to Martin on January 12, 1999, explained that "an effective marketing plan has not been created or implemented to address upcoming lease renewals and reduce exposure to vacancy. There are currently approximately 200 leases expiring within 90 days. This has been discussed with Cathy previously in November and December." Id. at 118-19; Defendant's Exh. 13. In her written response to this warning, Plaintiff admitted that "I have failed to formally keep [my supervisor] informed of any [marketing] system in place but fully understand the importance." Plaintiff's depo. at 126-27; Defendant's Exh. 13. The second warning, issued on April 19, 1999, stated that the lease renewal program still has not been implemented, "[t]he property is reflecting low occupancy and leased percentages, [and] leasing and/or follow up is not being monitored appropriately. . . . This is the second and final warning. Cathy must ensure Oak Run is marketed and ran [sic] as directed." Defendant's Exh. 16. At the time Plaintiff was presented with this warning, her supervisor explained to her that she "was still not doing [her] lease renewal plans like he wanted them done." Id. at 135. Finally, on May 18, 1999, Plaintiff was terminated, due to her "[f]ailure to meet specific goals and run property as directed." Defendant's Exh. 19.
The Employee Termination Report prepared by Martin's supervisor on May 17, 1999 states:
Cathy was given a written warning in January 1999 for not having an effective Marketing Plan in place for the property (specifically one to address lease renewals and reduce exposure). Occupancy and leased percentages have been low at Oak Run since late 1998. There were repeated conversations between Cathy and myself regarding property performance and attracting new leases to the property after this written correction.
On April 19, 1999[,] Cathy was given another written warning. The renewal program discussed in January had still not been implemented. Occupancy and leased percentages were still below an acceptable level. Leasing follow up was not being monitored appropriately, resulting in slow response to problem situations. Cathy was reminded it is her responsibility to ensure Oak Run is marketed and ran [sic] as directed. She was told the renewals and resident contacts were to be contacted and completed according to the plan. She was given until April 30, 1999 to have the Renewal program brought up-to-date. On Monday, May 3, 1999, the book had not been updated.
Cathy has not been proactive in addressing trouble situations. In her review signed on March 1, 1999[,] she was informed that she tended to be slow in identifying problems and that she tended to react vs. act.
Defendant's Exh. 20.
Although Plaintiff stated in her deposition that her assistant manager, Steven Randolph, informed Martin that her supervisor's boss instructed her supervisor to terminate her because she could not handle her job since the surgery, Plaintiff has presented no non-hearsay evidence substantiating this allegation. Id. at 137-38. Instead, the only evidence presented demonstrates that, even when viewed in a light most favorable to Plaintiff, Defendant's reasons for terminating Plaintiff stemmed from factors entirely apart from Plaintiff's impairment. Thus, the Court finds that Plaintiff has not established a prima facie case of discriminatory employment under the TCHRA.
The Court will not consider this unsubstantiated hearsay within hearsay statement in determining whether Defendant's Motion should be granted. On this note, although Defendant deposed Randolph, and stated in its Motion that it would supplement its Appendix with the transcript of Randolph's deposition when it became available, Defendant has not done so. Thus, the Court has not treated as fact Defendant's statements in its Motion that reference Randolph's deposition.
III. Conclusion
In conclusion, the Court finds that Plaintiff does not have a disability within the meaning of the TCHRA, and that, even if she could establish that she has such a disability, she has come forward with no evidence substantiating her allegations that Defendant failed to reasonably accommodate her disability or discharged her due to her disability. Thus, the Court GRANTS Defendant's Motion for Summary Judgment.