Aikens v. Banana Republic, Inc.

• Decision Date: 08 March 1995
• Docket Number: Civ. A. No. H-93-3735.
• Citation: 877 F. Supp. 1031
• Parties: Rehnee AIKENS, Plaintiff, v. BANANA REPUBLIC, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

877 F. Supp. 1031

Rehnee AIKENS, Plaintiff, v. BANANA REPUBLIC, INC., Defendant.

Civ. A. No. H-93-3735.

United States District Court, S.D. Texas.

March 8, 1995.

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Robert Wallace, Robert T. Wallace & Associates, Houston, TX, for plaintiff.

Thomas J. Wray, Fulbright & Jaworski, Houston, TX, for defendant.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendant Banana Republic, Inc.'s ("Banana Republic") Motion for Summary Judgment (# 11). Defendant seeks summary judgment on Rehnee Aikens ("Aikens") claims of discrimination under the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964 ("Title VII").

Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that the defendant's motion for summary judgment should be granted.

I. Background.

On August 27, 1987, Aikens was hired by Banana Republic as a part-time sales associate at its Montrose store location. When the Montrose location closed, Aikens was transferred to the Galleria store. Since 1975, Aikens has suffered from a visual impairment known as macular degeneration, which is a progressive degeneration of the back of the retina that has caused her vision to deteriorate to an acuity of 20/400.

On May 27, 1991, the store manager of Banana Republic, Diane Schmidt ("Schmidt"), promoted Aikens to the position of stockroom manager and increased her pay by fifty cents per hour. Schmidt erroneously classified Aikens as an assistant manager, which allowed her to receive incentive bonuses based on the store's performance. In May 1992, Danielle Teverbaugh ("Teverbaugh") replaced Schmidt as the store manager and discovered that Aikens' job classification had been miscoded by Schmidt. On June 24, 1992, Teverbaugh corrected Aikens' job code to reflect her true job classification — stock person. Although Aikens' job duties and responsibilities did not change after her job classification was corrected, she was no longer entitled to receive incentive bonuses or attend manager meetings. On December 4, 1992, Aikens gave Banana Republic notice that she was resigning her position, effective December 12, 1992.

On January 14, 1993, Aikens filed a charge of discrimination against Banana Republic with the Equal Employment Opportunity Commission ("EEOC"). After the EEOC issued Aikens a right to sue letter, she initiated this action on November 23, 1993. In her original complaint, Aikens alleges handicap discrimination under the ADA in connection with her reclassification to stock person, claiming that it was a demotion. She attached to the complaint a copy of her EEOC charge, which alleges discrimination due to her race — black, as well as handicap discrimination. Aikens recently was granted leave to file a supplemental complaint to add a claim of constructive discharge, in which she contends that she was forced to resign her position in December 1992 due to her demotion in June 1992.

II. Analysis.

A. The Applicable Standard.

Rule 56(c) provides that "summary judgment ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to its case on which it bears the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

B. Americans with Disabilities Act.

1. Effective Date.

In this case, Aikens alleges she was demoted from the position of assistant manager to stock person in violation of the ADA. Although the ADA was enacted on July 26, 1990, Congress delayed its effective date as applied to private employers until July 26, 1992. 42 U.S.C. § 12112 (1993). As stated by President Bush in enacting the ADA, "These phase-in periods and effective dates will permit adequate time for businesses to become acquainted with the ADA's requirements and to take the necessary steps to achieve compliance." Americans with Disabilities Act, Pub.L. 101-336, Signing Statement, 1990 U.S.C.C.A.N. at 602. The legislative history of the ADA is devoid of language that would support the retroactive application of the Act. R.G.H. v. Abbott Lab., No. 93 C 4361, 1995 WL 68830, at *8 (N.D.Ill. Feb. 16, 1995). Moreover, applying the ADA retrospectively would completely undermine the express purpose of the grace period that was purposefully built into the Act. Id. Accordingly, courts have uniformly construed the Act to apply only to wrongful conduct occurring after July 16, 1992. O'Bryant v. City of Midland, 9 F.3d 421, 422 (5th Cir. 1993); R.G.H., 1995 WL 68830, at *8; Gonzales v. Garner Food Servs., 855 F.Supp. 371, 373 (N.D.Ga.1994); Daniels v. Allied Elec. Contractors, 847 F.Supp. 514, 516 (E.D.Tex. 1994); Aramburu v. Boeing Co., No. 93-4064-SAC, 1993 WL 544567, at *2-3 (D.Kan. Dec. 29, 1993).

Aikens' job was reclassified on June 24, 1992. If any alleged violation occurred, it was more than one month prior to the ADA taking effect. Thus, Aikens' handicap discrimination claim based upon her alleged demotion is not actionable under the ADA. Moreover, because Aikens' constructive discharge claim is founded upon her alleged demotion, it likewise is not actionable under the ADA.

2. Prima Facie Case of Handicap Discrimination.

Furthermore, without regard to the effective date of the ADA, Aikens' claims are barred because she has not established a prima facie case of handicap discrimination.

The ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The ADA further defines a disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such impairment." 42 U.S.C. § 12102(2).

To recover under this statute, Aikens must prove that she was discriminated against on the basis of her disability. R.G.H., 1995 WL 68830, at *9. To do so, she may either present direct or circumstantial evidence of disability discrimination or may employ the indirect method of proof utilized by the courts in other types of discrimination cases. Id. Although the case law is scant regarding the ADA, especially within the Fifth Circuit, the few courts that have addressed claims brought under the Act have looked to Title VII and the Rehabilitation Act to provide guidance as to the elements which constitute a prima facie case of disability discrimination. Aucutt v. Six Flags Over Mid-America, Inc., 869 F.Supp. 736 (E.D.Mo.1994); see R.G.H., 1995 WL 68830 at *9; Grinstead v. Pool Co., No. 93-2320, 1994 WL 25515, at *2 (E.D.La. Jan. 20, 1994).

To state a prima facie case under the ADA, the plaintiff must show that: (1) she suffers from a "disability;" (2) she is a "qualified individual;" (3) she was subject to an adverse employment action; and (4) she was replaced by a non-disabled person or was treated less favorably than non-disabled employees. See R.G.H., 1995 WL 68830, at *9; Aucutt, 869 F.Supp. at 743; see also White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. Jan. 5, 1995); Rogers v. International Marine Terminals, Inc., No. 94-0056, 1995 WL 16787, at *3 (E.D.La. Jan. 17, 1995); Stradley v. Lafourche Communications, Inc., 869 F.Supp. 442, 443 (E.D.La. 1994) (citing Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994) Rehabilitation Act); Elstner v. Southwestern Bell Tel. Co., 659 F.Supp. 1328, 1345 (S.D.Tex.1987), aff'd, 863 F.2d 881 (5th Cir.1988) Texas Commission on Human Rights Act. If the plaintiff succeeds in making this prima facie showing, a rebuttable presumption of discrimination arises and the burden of production shifts to the employer to articulate a legitimate, non-discriminatory justification for its actions. R.G.H., 1995 WL 68830, at *9 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)); Grinstead, 1994 WL 25515, at *2. If the employer meets its burden of production, the presumption is dissolved and the burden shifts...