Cannizzaro v. Neiman Marcus, Inc.

• Citation: 979 F.Supp. 465
• Decision Date: 20 August 1997
• Docket Number: Civil Action No. 3:96-CV-0934-P.
• Parties: Tami L. CANNIZZARO, Plaintiff, v. NEIMAN MARCUS, INC., Defendant.
• Court: U.S. District Court — Northern District of Texas

979 F.Supp. 465

Tami L. CANNIZZARO, Plaintiff, v. NEIMAN MARCUS, INC., Defendant.

Civil Action No. 3:96-CV-0934-P.

United States District Court, N.D. Texas, Dallas Division.

August 20, 1997.

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Kay Lynn Van Wey, Julie Elizabeth Johnson, Van Wey & Johnson, Dallas, TX, for Plaintiff.

Stephen Fred Fink, Marc H. Klein, Thompson & Knight, Dallas, TX, for Neiman Marcus Inc.

MEMORANDUM OPINION AND ORDER

SOLIS, District Judge.

Now before the Court are Defendant's Motion for Summary Judgment, Plaintiff's Motion for Continuance Under Rule 56(f) and Brief in Support of Opposition to Motion for Summary Judgment,¹ and Reply Brief in Support of Defendant's Motion for Summary Judgment and Response to Plaintiff's Rule 56(f) Motion for Continuance. Based on the evidence before the Court and the authorities presented, the Court hereby DENIES Plaintiff's Motion(s) for Continuance and GRANTS Defendant's Motion for Summary Judgment.

I. THE FACTS

Plaintiff ("Cannizzaro") was employed by Defendant Neiman Marcus ("NM") for approximately 10 years when she learned that she had a subdural hematoma. Cannizzaro underwent brain surgery to have the mass removed. During the week following her surgery, Cannizzaro suffered seizures and was placed on anti-seizure medications, which she alleges she continues to take.² Immediately following her surgery, Cannizzaro's physician ("Dr.Morgan") directed her to refrain from lifting, bending, driving and engaging in any physical activity beyond normal walking. Cannizzaro's position at NM required her to lift, bend and spend several hours on her feet. About that time, Cannizzaro informed NM that she would be unable to return to work for approximately three months. Under NM's short term disability plan in effect at the time, Cannizzaro was entitled to receive full salary for 26 weeks. While Cannizzaro was on short term disability, NM filled her position.

When Cannizzaro was released to return to work, Dr. Morgan placed certain restrictions on Cannizzaro's release. She was not to bend more than 20 degrees; she could not lift anything weighing more than 10 pounds she was prohibited from lifting anything (including a light briefcase) more than 2-3 times daily; she was not to work more than 5 hours per day the first week she returned, but she should be able to ease into the traditional 40 hour work week by the second week; and she could not travel by airplane more than once per month. Cannizzaro informed NM of these restrictions.

Cannizzaro continued to receive short-term disability benefits while she interviewed for vacant positions with NM. Cannizzaro was not hired for any of the seven positions for which she interviewed.³ NM agreed to extend Cannizzaro's benefits by one month, and allowed her to exhaust all of her accrued vacation and other paid leave while Cannizzaro was interviewing. This allowed Cannizzaro to continue to receive her pay and benefits for approximately three more months. During this time period, the evidence indicates that Cannizzaro met with the neurosurgeon who had removed her subdural hematoma ("Dr.Finn"). Dr. Finn's notes state "[Cannizzaro] is doing extremely well. She is absolutely asymptomatic. She is back to normal." Cannizzaro Depo. Ex. 23.

About one month prior to the expiration of her benefits, NM's Vice President of Human Resources ("Johnson") and the head of Employee Benefits ("Danes") scheduled a meeting with Cannizzaro. At this meeting, Danes told Cannizzaro that "we don't think your career is here at Neiman's anymore." When Cannizzaro asked why, Johnson stated "well, you're not getting any of the positions you interview for." Johnson and Danes then offered Cannizzaro the paid assistance of an outside job placement firm to help her locate a position with a company other than NM. Cannizzaro accepted the referral, alleging that she believed herself to be terminated at this point.

Shortly thereafter, Cannizzaro filed a claim for unemployment benefits despite remaining on NM's payroll and receiving vacation pay. Cannizzaro indicated in her application that she could perform any job not involving lifting or bending. About the time all of her paid leave was exhausted, Cannizzaro obtained a position as a special events project manager with the Zales Corporation. The day before she started her new job, Cannizzaro filed a charge with the Equal Employment Opportunity Commission ("EEOC") against NM alleging sex and disability discrimination. Thereafter, Cannizzaro received her right to sue letter and filed this action, alleging causes of action under the Americans With Disabilities Act ("ADA"); negligent training, supervision and retention; and intentional infliction of emotional distress. NM has moved for summary judgment on all counts in Cannizzaro's complaint, and Cannizzaro seeks a continuance to obtain further discovery to establish that a genuine issue of material fact exists precluding summary judgment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment shall be rendered when 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 judgment as a matter of law. Fed. R. Civ. Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986); Thomas v. Harris County, 784 F.2d 648, 651 (5th Cir.1986). Material facts are facts that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). All evidence and the inferences to be draw therefrom must be viewed in the light most favorable to the party opposing the motion. Marshall v. Victoria Transp. Co., 603 F.2d 1122, 1123 (5th Cir.1979). Such inferences must be reasonable and may not rest upon speculation and conjecture only. Brady v. Houston Indep. School Dist., 113 F.3d 1419, 1422 (5th Cir.1997).

The nonmovant must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). A "mere scintilla" of evidence is insufficient to present a question for the jury. Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 804 (5th Cir.1997). The party defending against a motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a jury might return a verdict in his favor. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514-15. When the record taken as a whole could not lead a rational trier of fact to find for the nonmovant, there is no genuine issue for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.

The party opposing the motion must come forward with competent summary judgment evidence. Id. at 586, 106 S.Ct. at 1355-56. Conclusory statements unsupported by evidentiary facts will not defeat a motion for summary judgment. Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Morton v. GTE North Inc., 922 F.Supp. 1169, 1181 (N.D.Tex.1996), aff'd 114 F.3d 1182 (5th Cir.1997). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Anderson, 477 U.S. at 248-50, 106 S.Ct. at 2510-11. Nor may the nonmovant rest on mere allegations or denials in its pleadings. Id. Evidence not significantly probative or that is "merely colorable" will not defeat a properly supported motion for summary judgment. Id.

When the nonmoving party fails to make the requisite showing and the moving party has met his summary judgment burden, the movant is entitled to summary judgment. Fed.R.Civ.P. 56(c); Campbell v. Sonat Offshore Drilling, 979 F.2d 1115, 1119 (5th Cir. 1992). Coghlan v. H.J. Heinz Co., 851 F.Supp. 808, 811 (N.D.Tex.1994). Moreover, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case and on which he will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. The court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 402 (6th Cir.1992). The court need only rely on the portions of submitted documents to which the nonmoving party directs. Id. at 403.

A. Continuance

Rule 56(f) provides:

When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Fed. R. Civ. Proc. 56(f).

In its affidavits, a party must present specific facts explaining its inability to respond substantively and also demonstrate how delaying a ruling will enable the party to rebut the motion. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir.1993); International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1267-68 (5th Cir.1991). The nonmovant may not rely on vague assertions that discovery will produce needed, but unspecified facts. SEC v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir.1980), cert. denied, 449 U.S. 1082, 101 S.Ct. 866, 66 L.Ed.2d 806 (1981). Moreover, the court "need not aid [parties] who have occasioned their own predicament through sloth." Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir.1992), cert. denied, 508 U.S. 910, 113 S.Ct. 2340, 124 L.Ed.2d 251 (1993). Finally, as Defendant points out, the federal rules "shall be construed and administered to secure the just, speedy and inexpensive determination of every...