Opinion
CA 7:01-CV-034-R
May 9, 2002
MEMORANDUM OPINION AND ORDER
Defendant's Motion for Summary Judgment is before the Court. Plaintiff Elizabeth Anne Whaley ("Whaley" or "Plaintiff") filed this suit against Defendant Southwest Student Transportation, L.C., ("Southwest Student" or "Defendant") alleging: (1) violation of the Americans With Disabilities Act, 42 U.S.C. § 12101 et. seq. ("ADA"); and (2) violation of the Texas Commission on Human Rights Act, Tex. Lab. Code Ann. § 21.0151et seq. ("TCHRA"). Whaley is an obese individual who claims Southwest Student terminated her and retaliated against her because of her obesity. Whaley alleges that the ADA and TCHRA protect obese individuals. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED as to all claims.
I. FACTUAL BACKGROUND
Southwest Student employed Whaley as a school bus driver in its Wichita Falls office. Southwest Student is a corporation that contracts with school districts to transport students. At the time, Whaley ceased working for Southwest Student, Whaley weighed around three hundred and fifty (350) pounds. Whaley's height is approximately five feet five inches.
Whaley first began driving school buses in July of 1997 for Laidlaw, Southwest Student's predecessor. At that time, Whaley's weight was around two hundred and eighty-nine (289) pounds.
In January 2000, Whaley had bariatric surgery. Whaley's present weight is about two hundred and fifty (250) pounds. Whaley has virtually no limitations posed by her obesity. Whaley can walk and perform her regular daily activities. Whaley performs the household tasks of cooking and cleaning, and she drives a car. Whaley alleges that she had no problems performing her job of school bus driver with the exception of having some difficulty fastening her seat belt and fitting behind the steering wheels of some school buses. Whaley also had difficulty lifting items.
Since leaving Southwest Student, Whaley has met the physical requirements of all of her jobs. Whaley alleges Southwest Student terminated her because of her weight, and she does not believe her weight impaired her from performing her job as a school bus driver. Whaley alleges that Southwest Student should have provided her a seatbelt extender, assigned her to a different bus, or transferred her to a different position to accommodate her weight Both Whaley's and Southwest Student's primary concern was to transport school children safely.
Southwest Student has a variety of buses with different configurations for the driver's seat and seat belt. Whaley typically drove the same bus every day on her route, but circumstances such as maintenance on buses would sometimes require Whaley to drive a different bus. Transporting students on these buses posed safety concerns for Whaley. For example, some of the buses had an adjustable driver's seat while others had a fixed seat and steering wheel that could not be adjusted. Whaley was only able to fit in the adjustable seats that could be moved back from the steering wheel. With the non-adjustable seats the steering wheel would cut into Whaley's stomach. Regarding the seat belts, some buses had a separate fastener for the shoulder and lap belt while other belts connected both the lap and shoulder belt with one buckle. Other buses had only a lap belt. This posed a problem because Whaley could not fasten seatbelts that had a separate shoulder and lap harness. Whaley could either buckle her lap belt or her shoulder harness, but not both. Thus, one of the belts would not be fastened when she drove. Admittedly, Whaley felt by doing this she was jeopardizing her safety and the safety of the children she transported.
Around November 1999, Whaley requested a seat belt extender. Southwest Student denied the request because of the safety and liability concerns of reconfiguring a bus. Around this time, Southwest Student implemented a new proficiency test to improve safety for both students and drivers. Southwest Student notified the employees that the company would now require all drivers to fit behind the steering wheel of each of its school buses.
Later, at a school bus driver meeting, Whaley questioned Mike Williams, a manager for Southwest Student, about the company's decision not to provide her a seat belt extender and the policy that every employee would have to fit behind the steering wheel of all of the school buses. She wanted to know whether this was now company policy.
At the meeting, Mike Williams confirmed that it was now company policy that all employees must fit behind the steering wheels. After the meeting, Whaley pursued the issue one-on-one with Mike Williams. During this one-on-one meeting, Mike Williams asked Whaley if she fit behind the steering wheel of every bus. Whaley replied that she could fit behind the majority of them. Whaley admits that in some school buses, she could not get behind the steering wheel without the wheel touching her stomach.
Mike Williams also asked Whaley if she could safely perform evacuations on the school buses. Whaley responded that she could evacuate a school bus. Whaley purports tat she had difficulty walking down the bus aisle face-forward, so she walked down the aisle sideways. According to Whaley, this did not impair her ability to evacuate a school bus.
Mike Williams administered the proficiency test to Whaley so that she could demonstrate that she could fit behind the steering wheel, fasten her factory-installed seatbelt, and perform a safety evacuation. Mike Williams had a school bus brought to Whaley for this demonstration; it was a spare bus that only had a lap belt Whaley could not fit behind the steering wheel of the bus without touching the wheel. As a result, Whaley experienced difficulty in turning the steering wheel. Whaley also could not fasten the lap belt.
It is disputed whether Southwest Student terminated Whaley at this time or whether Whaley quit her employment. But both parties agree that Whaley could not fit behind the steering wheel. Both parties also agree that Southwest Student viewed fitting behind the steering wheel of the bus without the driver's body touching the steering wheel and being able to buckle the factory-installed seatbelt as job requirements for a Southwest Student school bus driver. Whaley never demonstrated whether she could perform the safety evacuation because she failed the first part of the proficiency test — fitting behind the steering wheel. Whaley's last day of employment with Southwest Student was November 11, 1999. Since leaving Southwest Student, Whaley has been employed in a number of jobs, and obesity has not prohibited Whaley from performing any job. Whaley does not believe that Southwest Student thought that her weight prevented her from performing any job other than that of school bus driver for Southwest Student.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 55(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am, 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc. 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Because cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these cases. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). If the defendant, however, is able to present strong evidence of a legitimate, nondiscriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may be properly granted. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
B. Whaley's ADA and TCHRA Claims
Whaley cannot establish a prima facie case of discrimination under the ADA or TCHRA. To establish a prima facie case of discrimination under the ADA or TCHRA, a plaintiff must prove: (1) that she has a disability; (2) that she was qualified for the job; and (3) that she was subject to an adverse employment decision on account of her disability. See Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999). Whaley cannot establish the first prong because obesity is not a disability, a physical or mental impairment that substantially limits a major life activity. See Johnson v. Baylor Univ., 129 F.3d 607 (5th Cir. 1997) (affirming grant of summary judgment where plaintiff claimed protection for chronic obesity under the ADA); Andrews v. Ohio, 104 F.3d 803, 810 (6th Cir. 1997) (holding that obesity does not equal an impairment and to hold otherwise would debase the ADA's protections for those that are truly handicapped); Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997) (holding plaintiff's obesity claim does not fall within the meaning of the ADA); Torcasio v. Murray, 57 F.3d 1340, 1354 (4 Cir. 1995) (reviewing case law finding obesity not covered by the ADA)
Furthermore, because Whaley does not believe Southwest Student regarded her as having an impairment that substantially limits a major life activity, Whaley cannot establish a "regarded as" claim under any of the "regarded as" scenarios recognized by the Fifth Circuit. See Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996); see also Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997). Therefore, because Plaintiff fails to establish that her obesity is a disability, Defendant is entitled to summary judgment on Plaintiff's ADA and TCHRA claims.
C. Whaley's Retaliation Claims
Whaley alleges that she was "singled out and required to take a test designed specifically to cause her to fail in retaliation for her request for a reasonable accommodation for her disability." Whaley cannot establish a case of retaliation. Under the ADA and TCHRA, no cause of action exists for retaliation for requesting an accommodation of a condition that is not a disability. Nor has the Fifth Circuit or a state court ever interpreted the ADA or the TCHRA as encompassing such a cause of action.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED as to all claims. It is so ORDERED.