Hilton v. Southwestern Bell Telephone Co.

• Decision Date: 30 July 1991
• Docket Number: No. 90-7006,90-7006
• Citation: 936 F.2d 823
• Parties: 56 Fair Empl.Prac.Cas. 863, 56 Empl. Prac. Dec. P 40,892, 60 USLW 2139, 1 A.D. Cases 1823 Don R. HILTON, Plaintiff-Appellant Cross-Appellee, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellee Cross-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 823

936 F.2d 823

56 Fair Empl.Prac.Cas. 863,

56 Empl. Prac. Dec. P 40,892, 60 USLW 2139,

1 A.D. Cases 1823

Don R. HILTON, Plaintiff-Appellant Cross-Appellee, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellee

Cross-Appellant.

No. 90-7006

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 30, 1991.

Kenneth H. Molberg, Wilson, Williams & Molberg, Dallas, Tex., for plaintiff-appellant cross-appellee.

William A. Brown, Southwestern Bell Telephone Co., Dallas, Tex., for defendant-appellee cross-appellant.

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

Before SMITH, DUHE and WIENER, Circuit Judges.

PER CURIAM:

In this Texas diversity case Plaintiff-Appellant Don R. Hilton's suit against his employer, Defendant-Appellee, Southwestern Bell Telephone Company, a Missouri corporation, claiming employment discrimination against a "handicapped person" under the Texas Commission on Human Rights Act, Tex.Rev.Civ.Stat.Ann. art. 5221k (Vernon, 1987) ¹ (hereafter TCHRA), was dismissed by the district court when it granted Southwestern's motion for summary judgment. The court held "as a matter of law" that AIDS and its related illnesses "by themselves" are not "handicaps" as defined in TCHRA. The district court also dismissed as moot Hilton's pending motion for a preliminary injunction. Concluding that the district court committed no reversible error, we affirm and, in so doing, find it unnecessary to consider the issues raised by Southwestern on cross appeal. ²

I.

Hilton sued Southwestern in state district court claiming that Southwestern had refused to allow him to return to work, had ultimately fired him, and had otherwise discriminated against him, on the basis of a "handicap" (AIDS or AIDS-Related Complex (ARC)), in violation of TCHRA. After Southwestern removed the case to federal district court on diversity of citizenship, Hilton moved for a preliminary injunction. Following an evidentiary hearing on the injunction at which considerable evidence was adduced--including evidence of the diagnoses and opinions of four physicians--and after the filing of briefs, but before a decision was rendered on the injunction, Southwestern filed its motion for summary judgment to which plaintiff responded. The district court granted Southwestern's motion for summary judgment based on that court's determination that Hilton was not "handicapped" for purposes of the TCHRA. Hilton's suit was dismissed, and his motion for injunctive relief was denied as moot. Hilton timely filed his notice of appeal to this court.

II.

The historical facts of this case exemplify an often replicated modern tragedy, evoking the sympathy of this court and, we speculate, that of the district court and of Hilton's employer, thereby making more difficult the decisions at each such level. Stripped of its pathos, however, this case hinges on the distinction between the meanings of handicapped under TCHRA and disability.

Southwestern hired Hilton in December, 1976. He worked in the field until a knee injury unrelated to AIDS terminated his ability to climb telephone poles, after which his employment was changed to drafting clerk in the Engineering Design section of Southwestern's Network Distribution Services Department. Late in October, 1986, Hilton's physician, Terry Pulse, M.D., diagnosed Hilton as having "HIV+/ARC with thrombocytopenia/ITP." ITP is a low blood platelet count condition described by Dr. Pulse as "life threatening!" at a time when Hilton had a platelet count of 14,000/mm ³, the normal platelet count range being from 140,000 to 250,000)/mm ³.

Southwestern is a subsidiary of Southwestern Bell Corporation. Southwestern's employees participate in several of Southwestern Bell Corporation's non-contributory benefit plans. One is the Southwestern Bell Corporation Sickness and Accident Disability Benefit Plan (the Temporary Plan), providing up to fifty-two weeks of sickness disability benefits for employees with at least six months of service who are totally disabled from available telephone company work. Non-management employees, such as Hilton, who exhaust sickness disability benefits under the Temporary Plan, may apply for benefits under another Southwestern Bell Corporation Plan (the Long Term Plan). Both the Temporary Plan and the Long Term Plan provide wage replacement benefits. Separate plans provide medical expense reimbursement for both active and retired employees. For purposes of medical coverage, a former employee receiving benefits under the Long Term Plan is treated the same as is a retired employee. All of Southwestern's employees who exhaust their benefits under the Temporary Plan and who apply for and are approved for benefits under the Long Term Plan are effectively terminated from employment by being removed from the active payroll. If such an employee should recover, he may apply for re-employment, but re-employment is not guaranteed.

On or about October 31, 1986, Hilton was absent from work claiming total disability due to a medical condition. On November 7, 1986, he began receiving sickness disability benefits under the Temporary Plan. From November 3, 1986, through September 23, 1987, Dr. Pulse submitted at least twelve separate documents substantiating Hilton's total disability from work.

At the direction of Southwestern's supervisory personnel, Brady L. Allen, M.D., an internist and an independent medical consultant, examined Hilton on August 18, 1987. In his August 20, 1987, report Dr. Allen found Hilton to be "totally disabled at this point secondary to rather severe ARC."

On October 1, 1987, approximately eleven months following commencement of Hilton's disability benefit period, Hilton advised his supervisor that Dr. Pulse had released him to return to work and that he (Hilton) intended to return. His supervisors immediately advised him that he should not return to work until further notification and that another medical examination and consultation were being scheduled. On the following day another independent medical consultant, James R. Farris, M.D., examined Hilton and found him to have a blood platelet count of 6,000/mm ³. Dr. Farris advised that, due to the "severity of this patient's thrombocytopenia," Hilton should not be returned to work and that even sedentary job duties were "implausible."

The issue was then considered by James T. Wheeler, M.D., Southwestern's Medical Advisor and a specialist whom Hilton's physician, Dr. Pulse, identified as an expert Pulse would consult in an ITP situation. Based on the Farris examination and report, on previous medical examinations and laboratory test results, and on other information available to Southwestern's Benefit Office concerning Hilton's disability status, Dr. Wheeler advised Southwestern that Hilton was totally disabled from even his sedentary drafting position.

On October 16, 1987, supervisors in Hilton's department considered and accepted Dr. Wheeler's conclusions and decided to advise Hilton that he would not be allowed to return to work. Hilton was so advised that day and was told that upon acceptance of long term disability benefits he would be removed from the payroll.

Hilton responded to supervisors that, in his opinion, Southwestern was discriminating against him and that he intended to file legal charges against Southwestern. Hilton's attorney contacted Dr. Wheeler to discuss the basis of Southwestern's decision. A short time later, however, Hilton applied for and was granted disability status under the Long Term Plan, and was removed from Southwestern's active payroll.

Both Hilton and Southwestern agree--in fact insist--that Hilton was not allowed to return to work because Southwestern determined that Hilton would be subjected to an unacceptable risk of harm. The parties also agree that Hilton exhausted his 52-week period of temporary disability, at the end of which he either had to go on permanent disability or return to work, but that Southwestern had denied him the latter alternative. And the parties agree that (1) Hilton's return to his job would pose no real risk to those around him; (2) the risk posed by ITP was to Hilton and Hilton alone; and (3) Hilton's termination was the direct result of his low platelet count associated with his ITP. Hilton does not contend that Southwestern's placing him on permanent disability due to his ITP was a pretext, agreeing that the real reason was his ITP resulting from AIDS or ARC. In fact, Hilton purports to support his case by quoting Dr. Wheeler's statement that Hilton's low platelet count was the "exclusive" reason for Southwestern's action, and that, as a matter of course, Southwestern disqualifies all individuals suffering from low platelet counts. ³

Hilton also cites in support of his claim the acknowledgment by Southwestern's Dr. Wheeler that Hilton's medical condition is one which is generally perceived as severely limiting one's work-related functions, adding that both Hilton's and Southwestern's evidence supports such a view as well as the opinion that Hilton's condition is terminal and dangerous.

III.

This court reviews the grant of summary judgment motion de novo, using the same criteria used by the district court in the first instance. Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). We "review the evidence and inferences to be drawn therefrom in the light most favorable to the non-moving party." Baton Rouge Bldg. & Constr. Trades Council v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir.1986) (per curiam) (citing Southmark Properties v. Charles House Corp., 742 F.2d 862, 873 (5th Cir.1984)). Summary judgment is proper "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A...