Burch v. Coca-Cola Co.

• Citation: 119 F.3d 305
• Decision Date: 30 July 1997
• Docket Number: No. 95-10990,COCA-COLA,95-10990
• Parties: 7 A.D. Cases 241, 22 A.D.D. 634, 10 NDLR P 209 Robert P. BURCH, Plaintiff-Appellee-Cross-Appellant, v.CO., Defendant-Appellant-Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 305

119 F.3d 305

7 A.D. Cases 241, 22 A.D.D. 634, 10

NDLR P 209

Robert P. BURCH, Plaintiff-Appellee-Cross-Appellant, v. COCA-COLA CO., Defendant-Appellant-Cross-Appellee.

No. 95-10990.

United States Court of Appeals, Fifth Circuit.

July 30, 1997.

Vella M. Fink, Pittman & Fink, Austin, TX, Jennifer Judin, Downs, Judin & Stanford, Dallas, TX, for Plaintiff-Appellee-Cross-Appellant.

Nancy L. Abell, Paul, Hastings, Janofsky & Walker, Santa Monica, CA, John Stuart Tonkinson, Carrington, Coleman, Sloman & Blumenthal, Dallas, TX, W. Joseph Thesing, Jr., The Coca-Cola Company, Litigation Division, Atlanta, GA, for Defendant-Appellant-Cross-Appellee.

Ellen Duffy McKay, Ann Elizabeth Reesman, McGuiness & Williams, Stephen A. Bokat, Robert E. Williams, Washington, DC, for Amicus Curaie, Equal Employment Advisory

Council, and Chamber of Commerce of the United States of America (Chamber).

Gail S. Coleman, Equal Employment Opportunity Commission, Office of the General Counsel, Washington, DC, for Equal Employment Opportunity Commission, Amicus Curaie.

Ellen M. Weber, Legal Action Center, Washington, DC, Paul N. Samuels, Sally Beth Friedman, Legal Action Center, New York City, for Amicus Curiae, National Council on Alcoholism and Drug Dependence and the Association of Substance Abuse Service Providers of Texas.

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

Before GARWOOD, WIENER and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellee-cross-appellant Robert P. Burch (Burch) brought this suit under the Americans with Disabilities Act (ADA) asserting that his termination by his employer defendant-appellant-cross-appellee Coca-Cola Co. was in violation of the ADA. Burch also advanced Texas law claims of intentional infliction of emotional distress and defamation. The trial court granted Coca-Cola's motion for summary judgment on the state law claims and granted judgment as a matter of law for Coca-Cola on the ADA intentional discrimination claim. The jury returned a verdict in favor of Burch on the ADA reasonable accommodation claim. Coca-Cola appeals the denial of its motion for judgment as a matter of law on the reasonable accommodation claim. Burch cross appeals the judgment as a matter of law on his intentional discrimination claim and the summary judgment on his defamation claim. We hold that Coca-Cola was entitled to judgment as a matter of law on both the intentional discrimination and the reasonable accommodation ADA claims, and that summary judgment was properly awarded to it on the defamation claim.

Facts and Proceedings Below

Burch, a former management-level employee of Coca-Cola, brought this suit against his former employer under the ADA. Burch, a recovering alcoholic, alleged that Coca-Cola terminated him because of his alcoholism and, alternatively, failed to accommodate his disability by terminating him instead of permitting him to return to work after he successfully completed a rehabilitation program.

Coca-Cola recruited Burch in mid-1989. At that time, Burch was a twenty-four-year veteran of the General Electric Company having achieved some success in various management positions. Burch commenced his employment with Coca-Cola in July 1989 as an area service manager for the company's Fountain Division. Coca-Cola assigns service responsibility by geographic area, dividing the country into several regions. As the area service manager for the southwest region, Burch was responsible for managing Coca-Cola's service network for a region that included all of Texas and stretched from North Dakota to Colorado and from Mississippi to parts of Arizona. He directly supervised approximately twenty Coca-Cola employees.

Burch's tenure with Coca-Cola was largely without incident and he was evaluated consistently as a manager who met requirements in a satisfactory manner. In 1991, Coca-Cola recognized Burch as the Area Service Manager of the Year. In July 1993, Burch received his highest overall evaluation score--an "M.E."--which signified that Burch "met or exceeded" goals. Burch's evaluations, however, reflect that "working relationships" was a "developmental area" for him. Burch was never formally reprimanded for improper behavior prior to his termination in November 1993.

In May 1992, Burch sought, and began receiving, counseling pursuant to Coca-Cola's Employee Assistance Program (EAP). Counseling pursuant to Coca-Cola's EAP is confidential; counselors are not permitted to notify Coca-Cola of the matters discussed or the name of the particular employee seeking counseling. Clinical social worker Cynthia Maddox, an EAP-provided counselor, saw Burch from May 29, 1992, until August 31, 1992, and again on February 3, 1993. Burch and Maddox primarily discussed relationship problems Burch was having with his then-current girlfriend. Burch, who has been married four times, was troubled with his inability to have lasting personal relationships. Although Maddox did not treat Burch for alcohol abuse, she noted a possible alcohol problem.

On February 3, 1993, Burch requested a psychiatric referral from Maddox. Maddox referred Burch to Dr. Joel Holiner, a psychiatrist in private practice, after concluding that Burch was exhibiting "obsessive, compulsive, and paranoid" behavior.

Burch saw Dr. Holiner in February 1993. Dr. Holiner diagnosed Burch as suffering from "adjustment disorder with depressed mood" and "probable alcohol abuse." Dr. Holiner in turn referred Burch to Dr. Marcelo Matamoros, a psychotherapist in private practice, for additional therapy. Dr. Matamoros began treating Burch several days after his referral, also in February 1993.

Burch testified that throughout this time he was drinking heavily during his off hours, routinely drinking eight or ten beers in the evening. Burch also testified that, although he never drank during working hours, he experienced hangover-like symptoms in the mornings and attempted to isolate himself from interaction with people. Burch would close his office door and complete paperwork in the morning to avoid contact with other Coca-Cola employees, explaining that he "wasn't a morning person."

Although Burch had been a regular drinker since age fourteen, he testified at trial that he believed his tenure at Coca-Cola exacerbated his problems with alcohol. Burch testified that alcohol was served regularly at Coca-Cola functions and that he drank regularly with both his peers and supervisors during business trips. The Coca-Cola "culture," as characterized by Burch, amounted to a fraternity of drinkers and contributed to his alcoholism. Burch testified that at his first Coca-Cola meeting in 1989, his supervisor, Bill Speer, called for an afternoon "beer break" instead of a coffee break. Similarly, Burch claimed that company-sponsored cocktail hours were common and that managers typically frequented bars and cocktail lounges after area service managers meetings.

Bill Speer was replaced as Burch's supervisor by Jose Smith, a man who Burch claimed had an exceedingly aggressive management style. Burch experienced no problems with his professional working relationship with Smith and no testimony was presented concerning any contact between Burch and Smith outside of their respective professional responsibilities. Smith's evaluations of Burch were unremarkable; Burch was rated as a competent area service manager with no noted problems of any significance.

Burch's third supervisor, Perry Cutshall, replaced Smith after approximately two years in 1991. Burch testified that he "tried real hard to build a relationship" with Cutshall, regularly drinking with him in Atlanta after monthly area service managers meetings. Burch further testified that Cutshall had been intoxicated on at least one occasion and that drinking after the meetings was "part of the protocol." Burch contended at trial that he informed Cutshall in 1992 that he had sought EAP counseling, but did not specify that he was concerned about an alcohol problem.

Burch also testified that he drank extensively with his fellow area service managers George Hawkins and Jerry Allen, although he contended that he curtailed his social drinking after he entered counseling with Maddox in 1992. Burch testified that he believed that Hawkins and Allen--whom he considered to be close social friends of Cutshall--ostracized him in 1992 when he stopped drinking with them after meetings and on business trips. Burch admitted, however, that Cutshall recommended him for two positions that would have been considered promotions after the perceived ostracism began in May 1992.

The only testimony concerning inappropriate conduct on the job by Burch prior to September 1993 was an incident involving a Coca-Cola customer service representative, Lajuanna Ajayi, in March 1993. The incident involved a McDonald's restaurant that had been without fountain service for an extended period. After unsuccessful attempts to reach an intermediate service manager, Ajayi contacted Burch directly by pager. Although the precise facts were contested at trial, it was established that Burch, who was in Toronto, was short with Ajayi when he answered the page. Ajayi complained to her supervisors, who in turn reported the incident to Cutshall. Cutshall spoke with Burch about the incident in Atlanta shortly after it occurred. Burch apologized to Ajayi but no formal reprimand was made by Cutshall.

The events leading up to Burch's termination began at a September 22, 1993, area service managers meeting in Atlanta. The meeting, at which approximately thirty-five Coca-Cola managers from around the country were in attendance, was held in a warehouse in Dunwoody, Georgia, a suburb north of Atlanta. The meeting lasted all day, with presentations from Coca-Cola managers concerning various procedures and developments affecting the fountain division. Burch testified that, during the meeting, Allen and Hawkins made repeated...