Opinion
Civil Action No. 4:01-CV-0375-BE.
March 24, 2003
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant's Motion for Summary Judgment, filed February 4, 2003. Having reviewed the arguments, evidence of record, and the substantive law, the Court finds that the Motion for Summary Judgment should be granted in part and denied in part.
A. PROCEDURAL HISTORY
Barbara M. Pickard was hired by the United States Postal Service in 1985. She initially worked as a part-time letter carrier, but later earned promotions to full-time letter carrier, District Facilitator, and Area Coordinator. In 1996, she returned to the position of letter carrier, and in October of that year, filed a sexual assault claim with the Equal Employment Opportunity office of the Postal Service against her supervisor, Thomas Alonzo. (Pl. App. G).
On October 23, 1996, Pickard was admitted to a psychiatric hospital for treatment of depression. She was discharged to outpatient care on November 1, 1996. Her doctor, Anthony Moore, M.D., wrote a letter dated December 12, 1996 indicating that Pickard was "likely to be out of work until 2/1/96 (sic)." Pickard did not return to work on February 1, 1997. Moore wrote additional letters on March 17, 1997 and May 1, 1997 stating that he did not know when Pickard would be able to return to work, but he anticipated May 1, 1997 (in his March letter) and July 1, 1997 (in his May letter). (Pl. App. A).
On February 4, 1997, Pickard submitted a request for 80 hours paid leave from her job with the Postal Service. On February 5, 1997, the Postal Service advised Pickard that additional documentation was required before leave could be granted, and she was given a deadline of February 11, 1997 to provide that documentation. Pickard did not provide the requested documentation, but instead called the Delivery Supervisor, Claude Cragg, and asked him to call her doctor and obtain the verification himself. (Pl. Aff., ¶ 12). The Postal Service terminated Pickard by notice issued March 19, 1997, with termination effective April 21, 1997. (Def. App. C).
Pickard, through her union, filed a complaint against the Postal Service regarding her alleged wrongful termination. A hearing was held in April 1998, and the arbitration proceedings were closed in June 1998. (Def. App. C) There is no dispute about Pickard's exhaustion of administrative remedies.
Pickard filed suit on May 3, 2001, alleging she has been discriminated against on the basis of her race, gender, and national origin in violation of Title VII of the Civil Rights Act of 1964, and in retaliation for filing a sexual assault claim against her supervisor. She also alleges a violation of the Rehabilitation Act based on her mental disability. (Pl. First Am. Compl.). The Postmaster General, John E. Potter, filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment on February 4, 2003.
Although the Postal Service has filed a consolidated Motion to Dismiss and Motion for Summary Judgment, the Court finds summary judgment to be the more appropriate standard under which to consider this case due to the parties' submission of materials outside the pleadings. See Fed. Rule of Civ. P. 12(b).
Summary judgment is appropriate 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 judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The court views all of the evidence and inferences therefrom in the light most favorable to the nonmovant. Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993).
The movant bears the initial burden of showing that no genuine issue of material fact exists, but once the movant makes such a showing, the burden shifts to the nonmovant to produce competent summary judgment evidence of the existence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514, 91 L.Ed.2d 202. An issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmovant. Id. at 248, 106 S.Ct. at 2510. A fact is material if its resolution would affect the outcome of the suit under the governing law. Id.
C. PLAINTIFF'S OBJECTION TO DEFENDANT'S EVIDENCE
Pickard has objected to the Arbitration Award exhibit offered by the Postal Service on the ground that the report, which finds in favor of the Postal Service with respect to Pickard's termination, is hearsay. (Def. App. C). Arbitration decisions are not necessarily excluded, absent some proof of untrustworthiness. Alexander v. Gardner-Denver Co., 415 U.S. 36, 60, 94 S.Ct. 1011, 39 L.Ed. 147 (1974); Graef v. Chemical Leaman Corp., 106 F.3d 112, 116 (5th Cir. 1997). Complaints of the use of possible hearsay in the abstract are not sufficient grounds for exclusion. Graef, 106 F.3d at 118. Furthermore, the Postal Service has cited to the Arbitration Award only for background facts that are not disputed and/or are confirmed elsewhere in the record. Pickard's objection to the Arbitration Award is overruled for purposes of these summary judgment proceedings.
D. TITLE VII DISPARATE TREATMENT CLAIMS
Pickard alleges she was denied medical leave and subsequently terminated because of discrimination based on her race, sex, and national origin. Pickard is a white female of Scotch-Irish origin. (Plf. Aff., ¶ 1). She alleges that other postal employees outside her protected class were granted medical leave without providing documentation in advance of taking leave and that, unlike her, they were not terminated for the failure to do so. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against persons based on their race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a), 2000e-16.
Presentation of an employment discrimination case follows the order of proof established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and reaffirmed by the Supreme Court in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993). The plaintiff must first meet the minimal requirement of establishing a prima facie case of discrimination, which creates a presumption that the employer unlawfully discriminated against the employee. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747,125 L.Ed.2d 407. In a disparate treatment/work-rule violation context, the plaintiff may establish a prima facie case of discrimination by showing: 1) she is a member of a class protected under Title VII; 2) she was qualified for her position; 3) she suffered an adverse employment decision, such as termination; and 4) she was treated differently than other employees who acted in a similar way. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995).
Once the plaintiff has established her prima facie case, the burden shifts to the employer to produce evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747,125 L.Ed.2d 407. The employer must articulate reasons for its actions that, if believed by the trier of fact, would support a finding that unlawful discrimination was not the reason for the adverse action. Id. at 507, 113 S.Ct. at 2747,125 L.Ed.2d 407. If a legitimate, nondiscriminatory reason is offered by the defendant, the presumption of discrimination created by plaintiff's prima facie case disappears. Mayberry, 55 F.3d at 1090. At this point, the burden is on the plaintiff to show that defendant's proffered reason is pretextual. McDonnell Douglas, 411 U.S. at 804. The plaintiff must persuade the court by a preponderance of the evidence that the reason given by the defendant is not the real reason for the termination. Hicks, 509 U.S. at 508, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Although the burden of production shifts between the plaintiff and defendant, the ultimate burden of persuasion always remains with the plaintiff to prove the defendant intentionally discriminated against her. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
It is undisputed that Pickard is a member of a class protected by Title VII, that she was qualified for her job, or that she suffered an adverse employment action when she was terminated. However, Pickard further alleges that other similarly situated postal employees were given leeway in regard to complying with leave procedures while she was terminated for not complying with those same procedures. She names twenty-one persons in her "List of Comparable Employees," attached as an exhibit to her affidavit, who are of a different gender, race or national origin and who failed to provide documentation prior to leave being granted, but were not terminated for the failure to do so. (Pl. App. C, 021, 024-26) Pickard has established a prima facie case of discrimination.
The Postal Service asserts that Pickard's termination was justified because she failed or refused to follow management directives to document her absence from work. Failure to follow directions of a manager is a legitimate, nondiscriminatory reason justifying termination of an employee. Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167-68 (5th Cir. 1999). However, Pickard reasserts the evidence she used for her prima facie case to demonstrate that the Postal Service's proffered reason for her termination is pretextual because it was notified of her illness and other employees requesting medical leave were not required to follow the same procedures as Pickard. Viewing the evidence in the light most favorable to Pickard, a material issue of fact has been raised as to whether the Postal Service's reason for her termination is a product of disparate enforcement of work rules. Summary judgment must be denied as to Pickard's discrimination claim.
E. TITLE VII RETALIATION CLAIM
Pickard has also alleged that she was not approved for medical leave and was subsequently terminated in retaliation for filing a sexual harassment claim against her supervisor. Title VII proscribes retaliation by employers against employees for opposing practices made unlawful under Title VII or for participating in any proceeding relating to such claims. 42 U.S.C. § 2000e-3.
The Fifth Circuit applies the McDonnell Douglas burden-shifting framework explained above to retaliation claims. Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 402-03 (5th Cir. 2000), cert. denied, 532 U.S. 937 (2001). A prima facie retaliation claim requires proof that (1) the employee engaged in protected activity; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between the protected activity and the adverse employment action. Mattern v. Eastman Kodak, 104 F.3d 702, 705 (5th Cir. 1997).
Pickard participated in protected activity via the filing of her sexual harassment complaint, and suffered an adverse employment action when she was terminated approximately six months later. But the parties dispute whether her termination can be linked to her protected activity.
The causal link may be established if the employer had some knowledge of the employee's protected activity and the evidence demonstrates that the termination decision was based in part on knowledge of the protected activity. Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001); Sherrod v. Am. Airlines, 132 F.3d 1112, 1122 (5th Cir. 1998). Pickard alleges in her affidavit that both her immediate supervisor and Claude Gragg, the supervisor who terminated her, were very upset about the sexual harassment claim. (Pl. App. C). Pickard has met the minimal standards for a prima facie case by demonstrating a possible causal link between her protected activity and the denial of her requests for medical leave and her subsequent termination.
The Postal Service maintains that it had a legitimate reason for Pickard's termination unrelated to her pursuit of a sexual harassment claim because she failed to provide documentation to support her request for medical leave. The burden thus shifts to Pickard to produce evidence that the Postal Service's proffered reason was merely a pretext. To meet her burden, Pickard must demonstrate that she would not have been terminated "but for" engaging in protected activity. See id. at 1123. While this portion of the analysis may seem comparable to establishing a causal link for purposes of a prima facie case, the burden here is more stringent. See Medina, 238 F.3d at 685. Here, Pickard has offered evidence that the Postal Service did not always adhere to its leave policy and that other employees requesting or taking medical leave were allowed more flexibility when documenting their need for leave. Because there are material issues of fact concerning the reasons for Pickard's termination, summary judgment is not appropriate as to her retaliation claim.
F. REHABILITATION ACT CLAIM
Pickard alleges that she is disabled by severe depression and stress, but is otherwise qualified to perform her job. She asserts that the Postal Service was aware of her disabilities and could have accommodated her without undue hardship, but did not do so. (Plf. First Am. Compl., ¶ 9(a)).
The Rehabilitation Act of 1973 prohibits the Postal Service from discriminating against otherwise qualified persons with disabilities. 29 U.S.C. § 794. To sustain a claim under the Rehabilitation Act, the employee must prove: 1) she is disabled; 2) she is otherwise qualified for her job; 3) she is employed by a federal employer or in a program or activity receiving federal funding; and 4) she suffered discrimination solely because of her disability. Hileman v. Dallas, 115 F.3d 352, 353 (5th Cir. 1997); Chandler v. Dallas, 2 F.3d 1385 (5th Cir. 1993). See generally Jasany v. United States Postal Serv., 755 F.2d 1244, 1249 n. 3 (6th Cir. 1985).
The Rehabilitation Act reads:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.29 U.S.C. § 794(a).
The Postal Service has not disputed in its summary judgment motion that Pickard was a participant in activities or programs conducted by the Postal Service. Neither party discusses the fourth prong of the test, which requires proof that the adverse treatment is due solely to the employee's disability, but the court finds it is not necessary to do so because Pickard has not demonstrated that she is an otherwise qualified individual for purposes of the Rehabilitation Act.
The Postal Service contends that Pickard is not a qualified individual with a disability because she offers no evidence that her depression substantially limits one or more major life activities. Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2. In her affidavit, Pickard asserts that she is disabled because her depression left her unable to care for herself, perform manual tasks, sleep, concentrate, or work, and for the most part, restricted her to her home. But even accepting for summary judgment purposes that Pickard has a qualifying disability, she had not demonstrated she is otherwise qualified for her job with the Postal Service.
Both judicial and statutory authorities reflect that a disabled person must be able to perform the essential functions of the job with or without reasonable accommodation to be considered qualified to hold that job. The Supreme Court defines an "otherwise qualified" person as one who is able to meet all of a program's requirements in spite of her disability. Southeastern Cmty. Col. v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). The Fifth Circuit has ruled that, the court must first consider whether the individual can perform the essential functions of the job, and if unable to do so, whether any reasonable accommodation by the employer would enable him to perform those functions. Chandler, 2 F.3d at 1393-94. Similarly, the Americans with Disabilities Act defines a "qualified individual with a disability" as a person with a disability capable of performing the essential functions of the position she holds or desires, with or without reasonable accommodation. 42 U.S.C. § 12111. The burden lies with the plaintiff to show that she is otherwise qualified. Chandler, 2 F.3d at 1393-94.
The standards used to determine whether the Rehabilitation Act has been violated are the same standards applied under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 and 42 U.S.C. § 12201-12204, 12210, as such sections relate to employment. 29 U.S.C. § 791(g), 794(d).
Reasonable accommodations are those that, either presently or in the immediate future, allow the employee to perform the essential functions of his job. Rogers v. International Marine Terminals, 87 F.3d 755, 759-60 (5th Cir. 1996). A reasonable accommodation is a method of accommodation that is reasonable in the run of cases. Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993), cited in Riel v. Electronic Data Systems Corp., 99 F.3d 678, 683 (5th Cir. 1996). A reasonable accommodation does not encompass transferring essential functions of the job to others. Bradley v. University of Texas M.D. Anderson Cancer Center, 3 F.3d 922, 925 (5th Cir. 1993) (citing Southeastern Cmty. College v. Davis, 442 U.S. 397, 407-08, 99 S.Ct. 2361, 2367-68, 60 L.Ed.2d 980 (1979)). The relevant time for determining whether an employee is a qualified individual with a disability is at the time of discharge. Griffith v. Wal-Mart Stores, 135 F.3d 376, 380 (6th Cir. 1998).
As of her termination date, Pickard's doctor stated in letters to the Postal Service that Pickard was unable to work at her regular job or any job, and he was unsure when she would be able to work again — although he gave a variety of anticipated dates that Pickard might be able to return to work. Thus, the only possible accommodation that could have been made, reasonable or otherwise, would have been to reassign Pickard's entire job to another person until her doctor determined she was again able to work. One essential element of any job is the ability to go to work. Rogers, 87 F.3d at 759. Further, the Fifth Circuit has specifically found that indefinite leave does not constitute a reasonable accommodation. Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 481 (5th Cir. 2000); Rogers, 87 F.3d at 759. Pickard was not an otherwise qualified person protected by the Rehabilitation Act.
Because Pickard was unable to perform the essential functions of her job and no reasonable accommodation by the Postal Service would have allowed her to do so, summary judgment in favor of the Postal Service is appropriate on Pickard's claims under the Rehabilitation Act.
IT IS ORDERED that Defendant's Motion for Summary Judgment be denied as to the disparate treatment and retaliation claims. Defendant's Motion for Summary Judgment on Pickard's claims under the Rehabilitation Act is granted.