Burfield v. Brown, Moore & Flint, Inc.

• Citation: 51 F.3d 583
• Decision Date: 10 May 1995
• Docket Number: No. 94-10795,94-10795
• Parties: 4 A.D. Cases 570, 11 A.D.D. 417 Don W. BURFIELD, Plaintiff-Appellant, v. BROWN, MOORE & FLINT, INC., Defendant-Appellee. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 583

51 F.3d 583

4 A.D. Cases 570, 11 A.D.D. 417

Don W. BURFIELD, Plaintiff-Appellant, v. BROWN, MOORE & FLINT, INC., Defendant-Appellee.

No. 94-10795

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 10, 1995.

John E. Wall, Jr., Dallas, TX, for appellant.

William O. Ashcraft, Anita Marie Alessandra, Ashcraft & Associates, Dallas, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:

Don W. Burfield filed a civil action against Brown, Moore & Flint, Inc. ("BM & F"), on August 18, 1993, alleging that he was the victim of employment discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634, the Americans with Disabilities Act ("ADA"), 42 U.S.C. Sec. 12112, and the Texas Labor Code Sec. 451.001. ¹ On July 26, 1994, the district court granted summary judgment in favor of BM & F on the following grounds: (1) the applicable statute of limitations had run before Burfield filed his ADEA complaint with the EEOC, ² (2) Burfield's ADA claim was barred as a matter of law because it arose prior to the Act's effective date, and (3) Burfield failed to establish the requisite causal connection between his workers' compensation claim and his discharge from employment. We affirm the district court's grant of summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

BM & F is a food brokerage company that markets dry and frozen foods to retail operations such as grocery and convenience stores. Burfield was hired by BM & F on February 22, 1988 as a retail sales representative, and he held this position throughout his employment with the company. Burfield was born on August 29, 1945, and he was over forty years of age at the time his employment with BM & F began. Burfield has a Bachelor of Arts degree in political science and public administration, along with a minor in business administration.

According to job descriptions prepared by BM & F, most essential functions performed by a retail sales representative consist of "getting product(s) aligned on grocery store shel(ves) according to stocking plan or manufacturer's requirements." This job function is referred to as "merchandising", and it involves lifting products up on to grocery store shelves, including overhead lifting. Another essential function of a retail sales representative is the selling of extra merchandise directly to the retail store, a function referred to as "surveying."

On March 20, 1991, while working as a retail sales representative at a Skaggs grocery store in Dallas, Texas, Burfield allegedly sustained a job-related injury when he was hit in the head and neck area by a box containing multi-roll packages of toilet paper that was thrown by an employee of Skaggs. Burfield completed an accident report for Skaggs and allegedly advised his supervisor at BM & F, Ronald A. Campbell, the Zone Manager, of the incident. Burfield reports that he asked Campbell if he should file a workers' compensation claim, to which Campbell allegedly replied, "Hell, no," and directed Burfield to file the claim with Skaggs.

Burfield subsequently saw Dr. Scott L. Blumenthal, M.D. for this injury. He was referred to Dr. Blumenthal by his attorney, John Wall, Jr. Burfield returned to full-duty work the day following the incident, but he continued to be treated by Dr. Blumenthal and his associate, Dr. Kevin Gill, M.D., with medications, physical therapy sessions and personal fitness training at a health club.

Burfield received no response following his submission of an accident report with Skaggs, and he subsequently filed a workers' compensation claim with BM & F in April of 1991, three to four weeks after the injury occurred. Burfield claims that upon approaching Leonard Bara, the controller at BM & F, about filing the workers' compensation claim, Bara appeared angry and handed Burfield the claim form in a brusk manner. According to Burfield, Bara said that he hoped they did not get in trouble for filing this claim, and a few weeks later, Bara stated to Burfield, "Thanks to you our rates are about to double."

BM & F then submitted an "Employer's First Report of Injury or Illness" to the Texas Worker's Compensation Commission on April 24, 1991. Thereafter, BM & F's workers' compensation insurance carrier, Northbrook Insurance Company, paid all expenses incurred by Burfield for his medical treatment. ³

Meanwhile, Burfield continued to work for BM & F while undergoing physical therapy and training sessions prescribed by his physician. In May or June of 1992, Burfield was transferred to work under Jim Tweet in the frozen and perishable food division of BM & F, still in his capacity as a retail sales representative. Burfield claims that he advised Tweet that he would be attending physical therapy and training sessions. Burfield continued to perform his full duties as a retail sales representative under Tweet without incident until the summer of 1992.

In the spring of 1992, Skaggs was purchased by Albertsons. As a result, the Skaggs account at BM & F was eliminated and the retail sales representatives who had been servicing Skaggs (Burfield and Debbie Kennemer) were reassigned to the Albertsons account. Since Albertsons performed all purchasing at the corporate level and did not allow its stores to buy products directly from retail sales representatives, there was no survey work to be done at Albertsons and merchandising then accounted for an even larger portion of Burfield's duties.

Effective June 1, 1992, BM & F restructured its operations by combining the frozen food and dry grocery divisions and, as a result, Burfield was again under the supervision of Ron Campbell. On this same day, Campbell instructed Burfield, along with other employees, to construct a large paper display at Albertsons. Burfield informed Campbell that he would not be able to perform this task because of his medical restrictions. Campbell was at this time reportedly unaware of Burfield's restrictions. When he asked Burfield for more information, Burfield replied "We'll talk about this at some other time." Burfield does not believe that he and Campbell ever "finished the conversation." Burfield claims that Campbell continued to ask him to perform tasks which violated his restrictions and caused him pain.

Burfield continued to work in his capacity as a retail sales representative throughout the month of June 1992 without incident. Burfield alleges, however, that on June 29, 1992, he experienced neck pain while shelving baby food. He left a voice mail message with Campbell informing him that he could no longer perform the essential functions of his position as a retail sales representative without injuring himself because lifting was "part of the job out there." Campbell responded by asking Burfield to bring documentation of his restrictions to the weekly sales meeting so that he and Burfield could discuss the matter. Burfield met with Campbell on July 2, 1992, and at that time Burfield provided Campbell with copies of his medical records. Campbell responded that he would need to discuss the matter with his supervisor, David Curtis. After this meeting, Burfield worked the remainder of the week before going on vacation until Monday, July 13, 1992.

On July 14, 1992, Burfield met with Campbell and Curtis. At this meeting, Burfield again stated that he could no longer perform the merchandising functions required in his position as a retail sales representative. He requested that he instead be allowed to do survey work for Tom Thumb. Campbell and Curtis advised Burfield that BM & F could not create such a position. They consequently informed Burfield that BM & F had no retail sales representative positions that did not involve merchandising, but that Burfield was welcome to interview for two administrative positions which were then available. Burfield has indicated that at this time (the July 14, 1992 meeting) he believed he was being discharged from employment with BM & F. ⁴

On August 17, 1992, Hugh Wilson, Secretary-Treasurer at BM & F, sent Burfield a letter explaining that since Burfield was unable to perform his job as a retail sales representative and because there were no other jobs available that accommodated Burfield's medical restrictions, he was being placed on an unpaid leave of absence with continuation of his medical insurance and other employee benefits until he was able to return to work or until December 31, 1992, whichever was sooner. Burfield was further advised that, although no positions accommodating his restrictions were currently available, he could continue to contact BM & F to inquire whether any such positions had become open. On November 16, 1992, Burfield filed a charge of discrimination with the Equal Employment Opportunity Commission, asserting that BM & F had discriminated against him in violation of the ADA because he was denied an accommodation for his disability and was discharged for "not being able to perform my duties without restrictions." Burfield further asserted that BM & F had discriminated against him on the basis of his age in violation of the ADEA by not promoting him to a marketing position. This claim was based upon specific promotions and hirings which occurred at BM & F between August of 1988 and April of 1991.

On August 30, 1992, Burfield filed for, and began receiving, unemployment compensation benefits from the Texas Employment Commission (TEC). Burfield informed the TEC that he had been terminated on July 15, 1992 because he sustained a job-related injury to his neck. In determining Burfield's entitlement to benefits, the TEC ruled that Burfield was able to work because his physical condition did not prevent him from performing other work for which he was qualified and which he could reasonably expect to obtain. Since March of 1993, Burfield has worked in Dallas as a paralegal....