Opinion
Civil Action No. 99-3888; Section: E/4.
December 5, 2000.
ORDER AND REASONS
Defendant Dolphin Services, Inc. ("Dolphin") has filed a motion for summary judgment on the claims of plaintiff Toby Price ("Price") that he was sexually harassed, that he was discharged in retaliation for having complained of sexual harassment, and that he was discharged because Dolphin regarded him as having a disability, i.e., diabetes, plaintiff Price opposes the motion.
Facts
Price was hired by Dolphin, a business specializing in marine fabrication based in Houma, Louisiana, in February 1998, as a rigger/clerk. Dolphin had been contracted to perform work in Bayonne, New Jersey and it hired Price to work in that location. Price was interviewed by Jean Lapeyrouse, the Personnel Manager, and Joe Grace, who had formerly worked as a supervisor at Production Management Industries with the plaintiff, for the position at Dolphin. As a condition of employment, Dolphin required Price to undergo a preemployment physical examination. Price disclosed that he had diabetes on his application, but Dolphin hired him anyway. He went to work as a rigger/clerk at the Bayonne location. His job duties required him to assist in the erection and/or dismantling of tools, equipment, and constructors, to drive company vehicles, and to perform clerical work on an as needed basis. Tim Naquin, another Dolphin rigger/clerk, performed similar duties on the opposite shift.
Price alleges that soon after arriving at Bayonne, he began to be the object of harassing conduct directed to his perceived sexual orientation from his supervisors and co-workers. This harassing conduct consisted of name calling, including being called such terms as "fairy boy," "cupcake," "faggot," and "Joe's bitch." He alleges that the name calling was not a single incident or limited to one individual, but was engaged in by a number of superintendents, riggers, welders, pipefitters and operators. He alleges that Dolphin employees who engaged in this conduct included Porter Strain, a supervisor, Robert Fowlkes, a supervisor, Danny Corbin, a supervisor, Robert Mulder, Troy Scott, Chris Barnes, and Alvin Phillips. He alleges that supervisors made these derogatory remarks within the hearing of his co-workers.
Price also alleges that on Secretary's Day, which was in April, 1998, he found a Secretary's Day Card on his desk. The Secretary's Day card had a picture of a woman on the cover, and bore the printed inscription on the cover, "Happy Secretary's Day" and "To a secretary who is not only intelligent, efficient, and fun to work with . . .", and the printed inscription on the inside ". . . but who also can type 120 words per minute without having the word "nikja" appear in the middle of the page. Have a Great Day." Two condoms were taped on the inside cover of the card, with "If you were a real man you could use this" handwritten above them. The phrase "Doing a great job sweetie — David" was written on the right inside face of the card, and the card was signed by Joe Grace, the plaintiff's supervisor, and David Matherne, Frederick Thompson, Larry Cooper, L. Barnz, Sed Frances, Gibber Castellenos, Sheldon Sult, and Intega Harrison, all co-workers of Price. Plaintiff's Exhibit 1. Plaintiff also alleges that in addition to the card, a pipe plug with a condom rolled over it was sitting on his desk.
A photocopy of the card is attached to the plaintiff's opposition memorandum.
Price alleges that a coworker told one of the tellers at Parampo Savings Bank in Bayonne, New Jersey that he was a "fairy boy". He asserts that he was asked by co-workers when they would meet his girl friend and that co-workers inquired about the reason why he did not have women calling him. He also contends that his mail was tampered with, that personal mail addressed to him was opened and that five to seven letters and items sent by his parents and friends were never received by him.
The plaintiff alleges that initially he did not report the harassment because he thought it would become worse. He reached a point where he felt so discouraged, offended, and harassed that he decided to report the conduct to the Houma main office. He called and spoke to Tina Piazza in Houma, and she told him he would have to speak to Greg Risher, the Human Resources Administrative Representative in the Houma office of the defendant. He spoke to Risher on August 4, 1998, complaining that his co-workers were making comments about homosexuals to him and asking him questions about his personal activities. Risher, who is presently Vice-president of Administration for Dolphin, told plaintiff he would investigate.
On the evening of August 4, 1998, Porter states that he could not eat due to the stress of the harassment in his employment situation and the next day, August 5, 1998, he experienced a diabetic episode due to very low blood sugar. He practically fainted at work and lost muscle control. He was brought to the hospital in Bayonne, and the physician advised him that his not eating probably caused the lowered blood sugar. The physician released him to return to work that day and advised that if he monitored his eating and his insulin, he could perform his job duties. He was not allowed to return to work that day, but did return the following day, August 6, 1998.
On August 5, 1998, Risher contacted the supervisors at Dolphin's facility in Bayonne. He spoke to Joe Grace, a previous supervisor on site, and inquired whether any comments or jokes were being made about homosexuals. Grace admitted that jokes were made and that several employees were involved and confirmed that the plaintiff was the person on the receiving end of the jokes. Risher also spoke to Porter Strain, another supervisor, who likewise admitted that the plaintiff was the target of comments and jokes, and remarked that he did not know the plaintiff was so upset about it.
On August 10, 1998, five days after the investigation and the conversations with the supervisors, Risher inquired of Price whether the situation had improved and Price agreed that there had been a noticeable improvement. Risher closed his file on August 11, 1998.
On September 2, 1998, Personnel Manager Jean Lapeyrouse advised Price that he would not be allowed to drive or operate machinery, but did not restrict his duties in any other way and did not reduce his pay, hours, or benefits. Price continued to work without any diabetic complications, but was directed to return to Houma, Louisiana for a company physical.
On September 10, 1998, plaintiff was examined by Dr. Robert Davis in Houma. Dr. Davis gave the plaintiff a physical and checked his blood sugar. Dr. Davis released him to return to work without restrictions.
On September 14, 1998, Price received a written reprimand from Lapeyrouse for writing a check for approximately $ 70.00 to himself without prior authorization to reimburse expenses which were legitimately owed to him.
On December 22, 1998, Price filed a formal complaint with the United States Equal Employment Opportunity Commission (EEOC) — Newark Area Office, complaining about the comments and pranks, noting that after he had made a formal, supposedly confidential complaint to Dolphin's main office, several personnel acknowledged to him that they knew about his complaint. He feared he would not be able to return to the field after his complaint became public.
Price alleges that after he filed his EEOC complaint, two superintendents told him that his employer was trying to fire him for personal reasons. He also alleges that the Personnel Manager, Lapeyrouse, told him that he could be fired and there would be nothing Price could do about it.
On January 17, 1999, Price had a second diabetic, or low blood sugar, episode. The defendant company experienced a slow down in work in January, 1999, and it determined to lay off three workers, the plaintiff, Tim Naquin, who held the same position as the plaintiff on the opposite shift, and Theodore Francis, another rigger. Naquin and Francis were subsequently rehired, but plaintiff was not. Personnel Manager Lapeyrouse made the decision to discharge Price and he states that he had no knowledge that Price had previously complained of sexual harassment. The last day that Price worked was January 18, 1999.
In response to the EEOC investigation, Dolphin's counsel characterized Price's two hypoglycemic episodes as "seizures". Dolphin's position was that after the second "seizure" on January 17, 1999, "it became evident that either the charging party's condition could not be regulated with his diet and insulin, or he was neglecting to comply with medical requirements. In either event, the charging party was not able to do his job, because quite obviously, one cannot work when one experiences multiple seizures over a relatively short period of time. Therefore, the charging party was not a qualified individual with a disability and could no longer remain employed." Plaintiff's Exhibit 7. While Dolphin advised the plaintiff that he was being laid off due to lack of work, in its response to the EEOC investigation, Dolphin's position was that he was laid off not only for lack of work, but also because, in Dolphin's opinion, "he was not qualified to hold the position; however, the company saw no need to confront him with the fact that he was not a qualified individual under the ADA, so it simply explained that he was being laid off due to lack of work." There is no evidence in the record that plaintiff was sent to a physician after the second hypoglycemic episode. The two other individuals who were laid off at the same type as the plaintiff were soon rehired, but plaintiff was never rehired.
After the EEOC issued a finding that there was reasonable cause to believe that the plaintiff's charge of discrimination was true, but that attempts to reach an amicable resolution of the matter between the parties were unsuccessful, the EEOC issued a Notice of Right to Sue to the plaintiff. Plaintiff timely filed the instant complaint against the defendant.
Analysis
Price brings employment discrimination claims arising under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) against his former employer, Dolphin. He contends that (1) he was sexually harassed in violation of Title VII); (2) he was discharged in retaliation for having complained of sexual harassment; and (3) he was discharged because Dolphin regarded him as having a disability, specifically diabetes. Defendant Dolphin seeks summary judgment on all three claims, arguing (1) the allegations of harassment, even if true, do not rise to the level of actionable sexual harassment; (2) even if the harassment violates Title VII, Dolphin is not liable because it took prompt remedial action; (3) Plaintiff is unable to establish a causal nexus between his sexual harassment complaint and his termination; and (4) Plaintiff is unable to establish that Dolphin perceived him to be disabled from performing his job as a rigger/clerk, or a wide range of jobs.
Sexual Harassment Claim
The plaintiff, a male, claims he was subjected to a sexually hostile work environment by other males in his workplace, including supervisors. As recognized by the Court in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1983), "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Title VII protects men as well as women, and prohibits discrimination because of sex regardless whether the victim and the harassment perpetrator are members of the opposite sex or the same sex. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 1001 (1998). The Court in Oncale, confronted with a factually similar situation to the present in that both victims are males whom co-workers perceived to be homosexual, noted that:
[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] . . . because of . . . sex.523 U.S. at 81; 118 S.Ct. at 1002.
The Oncale court noted that Title VII does not prohibit all verbal or physical harassment in the workplace, but only discrimination because of sex, and is not a general civility code. In deciding sex-based harassment cases, whether between members of the same sex or the opposite sex, Oncale returned to the principles enunciated in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 2404 (1986) and Harris, 114 S.Ct. at 367, as follows:
[Title VII] does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." [citation omitted]. We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace — such as male-on-male horseplay or intersexual flirtation — for discriminatory "conditions of employment."
We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." [citation omitted] In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field — even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.118 S.Ct. at 1003 (emphasis added)
Defendant first suggests that, accepting plaintiff's testimony as true, as a matter of law the conduct which plaintiff alleges is not sufficiently hostile or abusive to trigger the protections of the act. Applying the reasonable person test enunciated above, the Court finds that the conduct in question could constitute harassment based on sex which would offend Title VII. While any employee might have to endure a modicum of teasing, the barrage of comments and questions of a personal nature about the plaintiff's perceived sexual orientation, uttered both by supervisors and by co-workers within the ear-shot of supervisors without correction, the derogatory names plaintiff was called, and, the most egregious incident, the Secretary's Day card with condoms taped inside, signed by co-workers and supervisors, along with a condom laid across a pipe plug being left on plaintiff's desk, in totality do evince a hostility toward plaintiff in the workplace because of his sexual preference. A factfinder could conclude that a reasonable person in the plaintiff's position would find this work environment hostile or abusive and that the plaintiff did in fact perceive it to be so, thus meeting theHarris requirements that a sexually objectionable environment be both objectively and subjectively hostile. 114 S.Ct. at 370-371.
Defendant next argues that because it took remedial action, plaintiff's claim must fail as a matter of law. The defendant bases this argument on Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2256 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998). In Watts v. The Kroger Co., 170 F.3d 505 (5th Cir. 1999), the Fifth Circuit studied these two decisions by the Supreme Court, and incorporating them in the employment discrimination framework, summarized the applicable standards to such a claim:
When confronted with a sexual harassment claim alleging hostile work environment, we previously utilized the following five-factor test to determine if the plaintiff had established a viable cause of action;
(1) The employee belongs to a protected group;
(2) The employee was subject to unwelcome sexual harassment;
(3) The harassment complained of was based upon sex;
(4) The harassment complained of affected a "term, condition or privilege of employment," i.e., the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and
(5) Respondeat superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Jones v. Flagship International, 793 F.2d 714, 719-720 (5th Cir. 1986). With the release of Burlington and Faragher, however, this test is modified so that employees bringing a Title VII sexual harassment case alleging that a supervisor with immediate (or successively higher) authority over the employee harassed the employee need only satisfy the first four elements of the test outlined above. Once the plaintiff employee makes this showing, an "employer is subject to vicarious liability to a victimized employee." Faragher, 524 U.S. 775, 118 S.Ct. at 2292-93.Watts, 170 F.3d at 509.
In the present case, the plaintiff alleges that immediate supervisors participated in the harassment, including calling him derogatory names with a homosexual connotation, hearing others do it without reprimand, and signing the Secretary's Day card with the condoms taped in it. Under this analysis, plaintiff has presented a prima facie case of sexual harassment, including the element of vicarious liability.
Dolphin raises the Faragher affirmative defense, which the court in Watts explains, as follows:
In response to this cause of action, the employer can raise an affirmative defense to liability or damages, so long as it can establish that the supervisor's harassment did not culminate in a "tangible employment action" against the employee. Faragher, 524 U.S. 775, 118 S.Ct. at 2293. If there was a tangible employment action, the employer is not entitled to raise the affirmative defense. See id. Alternatively, "[w]hen no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of evidence." Id. That affirmative defense consists of two prongs, both of which the employer must fulfill: "(a) that the employer exercise reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id.170 F.3d at 509-10.
The plaintiff did report the harassment and noticed an improvement shortly thereafter. After he made the supposedly confidential report, however, several persons discussed his report with him, and two co-workers mentioned that the company was attempting to discharge him for "personal reasons." Plaintiff testified that the Personnel Manager told him that he could fire him and Price would be without recourse. Within 6 months of his initial report and approximately one month after he filed the EEOC complaint, he was terminated from his position and not offered other employment, as were two other laid off employees.
Under these circumstances, the Court finds that there is a question of fact concerning the employer's affirmative defense which precludes summary judgment. plaintiff did suffer a tangible employment action, i.e., discharge, within a relatively short time after he made the initial report of sexual harassment and within a very short time after he filed his EEOC complaint. He was not treated the same as two other similarly situated employees who were laid off. Defendant is not entitled to summary judgment on plaintiff's sexual harassment claim on this record.
Retaliation Claim
Next, Dolphin argues that the plaintiff cannot establish a causal nexus between his sexual harassment complaint and his termination. Plaintiff alleges that he was discharged in retaliation for his sexual harassment report to the company and his complaint to the EEOC.
In order to establish a prima facie case for unlawful retaliation under Title VII, 42 U.S.C. § 2000e-3(a), plaintiff must prove (1) that he engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. Grimes v. Texas Dept. of Mental Health, 102 F.3d 137, 140 (5th Cir. 1996); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). An employee is engaged in Title VII protected activity if he has "opposed any practice made an unlawful employment practice" by Title VII or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. Grimes, 102 F.3d at 140, quoting Long, 88 F.3d at 304.
If the plaintiff establishes a prima facie case of retaliation, an inference of discrimination is raised and the burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action, here termination. If the defendant meets its burden of production by evidencing a reason which, if believed, would support a finding that it did not act in a discriminatory manner, then the inference of discrimination raised by the prima facie case is erased. However, the plaintiff still must prove ultimately that the defendant intentionally discriminated against him in retaliation for his having engaged in protected Title VII activities, although if plaintiff disproves the defendant's proffered reason for the adverse action, the factfinder may, but is not required to, infer a discriminatory motive. St. Mary's Honor Ctr. v. Hicks, 590 U.S. 502, 507-511, 113 S.Ct. 2742, 2747-2749 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-805, 93 S.Ct. 1817, 1825 (1973); Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248, 253-57, n. 10, 101 S.Ct. 1089, 1094-95, n. 10 (1981); Grimes, 102 F.3d at 140.
As recognized by the Grimes court:
A plaintiff alleging employment discrimination is not required to come forward with direct evidence of discriminatory intent. LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 449 (5th Cir. 1996); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc). Direct evidence of an employer's discriminatory intent is rare; therefore, Title VII plaintiffs must ordinarily prove their claims through circumstantial evidence. A plaintiff may establish circumstantial evidence of intentional discrimination by demonstrating that a defendant's articulated non-discriminatory reason was pretextual. McDonnell Douglas, 411 U.S. at 803-805, 93 S.Ct. at 1825; Burdine, 450 U.S. at 251-53, 101 S.Ct. at 1093. . . .
Our traditional sufficiency-of-the-evidence standard provides that there must be a conflict in substantial evidence to create a jury question. LaPierre, 86 F.3d at 499; Boeing v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (en banc). In the employment discrimination context, evidence is substantial if it is such as to allow a rational factfinder to make a reasonable inference that race was a determinative reason for the employment decision. Rhodes, 75 F.3d at 994. Accordingly, we announced the following standard: a plaintiff can avoid summary judgment if the evidence, taken as a whole: (1) creates a fact issue as to whether each of the employer's stated reasons was not what actually motivated the employer and (2) creates a reasonable inference that [engaging in protected activity] was a determinative factor in the actions of which plaintiff complains. LaPierre, 86 F.3d at 450; Rhodes, 75 F.3d at 994. The two-pronged standard we announced in Rhodes makes clear that a plaintiff must present evidence sufficient to create a reasonable inference of discriminatory intent in order to avoid summary judgment. LaPierre, 86 F.3d at 450.Grimes, 102 F.3d at 140-141.
Plaintiff Price has established that he engaged in a protected activity, as he filed an EEOC complaint against Dolphin. He suffered an adverse employment action, as he was discharged only weeks after the EEOC complaint was filed. As recognized in Dey v. Colt Construction Development Co., 28 F.3d 1446, 1458 (7th Cir. 1994), a plaintiff may generally establish a causal link between retaliation for protected activity and discharge through evidence that the discharge "took place on the heels of protected activity," and indeed, such timing may support an inference of such a causal link. Under the factual circumstances, considering the totality of the circumstances, including the timing of plaintiff's discharge and the fact that he was not offered rehire, while other employees were, the Court finds that the evidence creates a fact issue as to whether retaliation was a motive for the termination. A reasonable factfinder could find that plaintiff's protected activity was a determinative factor in his discharge. Therefore, summary judgment on plaintiff's retaliatory discharge claim shall be denied.
ADA claim
Plaintiff argues that he was terminated by the defendant in violation of the Americans with Disabilities Act (ADA) because he was "regarded as having a disability." As observed by the Fifth Circuit in McInnis v. Alamo Community College District, 207 F.3d 276 (5th Cir. 2000), the McDonnell Douglas, Title VII burden shifting analysis is applicable to both Title VII and ADA claims:
Under this framework, a plaintiff must first make a prima facie showing of discrimination by establishing that: (1) He is disabled or is regarded as disabled; (2) he is qualified for the job; (3) he was subjected to an adverse employment action on account of his disability; and (4) he was replaced by or treated less favorably that non-disabled employees. [citation omitted]. Once the plaintiff makes his prima facie showing, the burden then shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Once the employer articulates such a reason, the burden then shifts back upon the plaintiff to establish by a preponderance of the evidence that the articulated reason was merely a pretext for unlawful discrimination.207 F.3d at 279-80. See, Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 1824 (1973)).
A person is "regarded as disabled" if he has a physical or mental impairment that does not substantially limit major life activities but nonetheless is treated by a covered entity as constituting such a limitation." 29 C.F.R. § 1630.2; 207 F.3d at 280. To establish that he was "regarded as disabled", the plaintiff must prove that he (1) has a physical or mental impairment that does not substantially limit his major life activities, which include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, but was treated as such by his employer; (2) has a physical or mental impairment that substantially limits one or more major life activities, but only because of the attitudes of others toward the impairment; or (3) have no actual impairment at all, but be treated by employer as having a substantially limiting impairment. McInnis, 207 F.3d at 280-81. The plaintiff must also prove that the impairment, if it existed as perceived by the employer, would be substantially limiting. Id.
A person is "substantially limited" in a major life activity if he is (a) unable to perform a major life activity that the average person can perform; or (b) is significantly restricted in the condition, manner, or duration under which he can perform the major life activity as compared to the condition, manner, or duration that the average person is able to perform the major life activity. 29 c.F.R. sec. 1630.2; McInnis, 207 F.3d at 280.
Plaintiff suffered from diabetes which he contends is not a disability under the ADA, but that he was "regarded as having a disability" by the defendant. Price suggests that the following facts create an issue of material fact which supports a finding that he was "regarded as having a disability" by Dolphin: (1) After having a hypoglycemic episode on August 5, 1998 and was treated by a physician, he was not allowed to return to work that day; (2) He was restricted from operating company vehicles or heavy machinery on September 2, 1998, even though he had not had such restrictions placed upon him by his physician; (3) He was ordered to travel to Louisiana to be examined by the company physician on September 10, 1998, one month after the low blood sugar problem, and received a fit for duty determination; (4) Dolphin's response to the plaintiff's EEOC complaint that plaintiff had a "seizure" while working in the field, that he continued to fall ill at work between August 6, 1998 and September 10, 1998, and that he had a second "seizure" on January 17, 1999, which convinced it that "either the charging party's condition could not be regulated with his diet and insulin, or he was neglecting to comply with medical requirements. In either event, the charging party was not able to do his job, because quite obviously, one cannot work when one experiences multiple seizures over a relatively short period of time." Letter by Robert Worley, Jr., counsel for Dolphin, to EEOC Investigator, April 26, 1999, Plaintiff's Exhibit 7 to Opposition Memorandum. A factfinder might reasonably conclude from this evidence that Dolphin regarded the plaintiff as a person with a disability.
Finally, in order to establish a prima facie case, plaintiff must show that he was terminated because of his perceived disability. The proximity in time to plaintiff's Jan. 17, 1999 low blood sugar episode, particularly when considered along with Dolphin's response to the EEOC coordinator, is sufficient for a reasonable factfinder to conclude that plaintiff was terminated "because of" his perceived disability. See, McInnis, 207 F.3d at 282.
Defendant also proffers a legitimate, nondiscriminatory reason for plaintiff's termination, a reduction in force, but admits that the two other individuals laid off at the same time as plaintiff were rehired shortly thereafter, but plaintiff was not offered further employment because it did not think he was qualified to work, a major life activity defined by the ADA, because of his medical condition. It is plain that there are material issues of fact on plaintiff's ADA claim which preclude summary judgment.
Defendant offered no medical evidence which supports its position that plaintiff is unable to work at all, or to perform the work of a rigger/clerk, with or without reasonable accommodations.
Conclusion
Considering the totality of the evidence in the record, in light of the applicable statutes, regulations, and jurisprudence, the Court finds that there are material issues of fact in dispute and that defendant has failed to establish that it is entitled to summary judgment as a matter of law on plaintiff's claims under Title VII or the ADA.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of Dolphin Services, Inc., for summary judgment be and is hereby DENIED.