Cutrera v. Board of Sup'Rs of La. State University

• Decision Date: 18 October 2005
• Docket Number: No. 04-31100.,04-31100.
• Citation: 429 F.3d 108
• Parties: Barbara CUTRERA, Plaintiff-Appellant, v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY, Louisiana State University Foundation, Marian Caillier, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 108

429 F.3d 108

Barbara CUTRERA, Plaintiff-Appellant, v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY, Louisiana State University Foundation, Marian Caillier, Defendants-Appellees.

No. 04-31100.

United States Court of Appeals, Fifth Circuit.

October 18, 2005.

Jill Leininger Craft, Baton Rouge, LA, for Cutrera.

Mary Lenore Feeney (argued), Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Bd. of Supervisors and Caillier.

William Lee Schuette, Jr. (argued), Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Baton Rouge, LA, for La. State Univ. Foundation.

Appeal from the United States District Court for the Middle District of Louisiana.

Before DAVIS, JONES and GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellant Barbara Cutrera, who suffers from a form of macular degeneration, alleges that her former employer, the Louisiana State University Foundation ("LSU Foundation"), the Board of Supervisors of Louisiana State University ("LSU Board"), and LSU ADA Coordinator Marian Callier failed to accommodate her disability and terminated her in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and 42 U.S.C. § 1983. Cutrera appeals the district court's grant of summary judgment for Appellees, and specifically the court's holding that (1) Appellant is not disabled for purposes of the ADA, (2) Appellant failed to make out a retaliation claim under the ADA, and (3) Appellant failed to make out a claim under § 1983. Because we conclude that Appellant raises a genuine question of material fact regarding her disability status under the ADA, we reverse in part, affirm in part, and remand.

I.

Appellant Barbara Cutrera was originally hired by LSU as a coordinator/research associate in the LSU Law Library in 1989. In 1993, Cutrera began experiencing difficulty tracking moving objects and driving at night, as well as numbness in her eyelids when reading from a computer screen. After consultation with several doctors, Cutrera was diagnosed with Stargardt's disease, a form of macular degeneration.¹ Cutrera's vision has steadily deteriorated, and she now has virtually no central vision in her left eye, and little in her right. Cutrera retains some limited peripheral vision primarily in her right eye. There is no known cure or treatment for Stargardt's disease, and the vision impairment cannot be corrected with eyeglasses, contact lenses, or surgery.

Although Cutrera's vision impairment was minor at the time of her diagnosis, by 1997 her vision had deteriorated enough that she was having difficulty reading information that was handwritten or typed in small fonts, and Cutrera notified her supervisors at the LSU Law Library of her condition. Cutrera formally requested accommodation for her impairment, and the LSU Law Library granted her additional time to complete her job tasks.

In 1998, Cutrera applied for and was offered a position as a research assistant with the LSU Foundation. The LSU Foundation exists to encourage financial support for LSU, and the Foundation also manages most of the investments and serves as trustee for most of the private assets contributed for the benefit of the University. Cutrera was hired to research prospective donors to LSU and maintain the donor files kept by the Foundation. Cutrera described her visual impairment during her interview at the Foundation.

Cutrera began work at the LSU Foundation on July 28, 1998, and soon discovered she was having difficulty reading many of the materials included in the donor files, such as handwritten notes and newspaper clippings, as well as type displayed on her computer screen. After notifying her supervisors, Cutrera scheduled meetings with a vocational rehabilitation counselor and the LSU ADA Coordinator, Marian Callier. During the meeting with Callier on August 3, 1998, Callier terminated Cutrera and informed her that she need not return to work.

On August 2, 1999, Cutrera filed suit in Louisiana state court, alleging disability discrimination and retaliation in violation of the ADA, deprivation of her liberty interest in violation of § 1983, and intentional infliction of emotional distress in violation of state tort law. After removal, the District Court granted summary judgment for Appellees on the grounds that (1) Cutrera is not disabled for purposes of the ADA, (2) Cutrera failed to make out a retaliation claim under the ADA, (3) Cutrera failed to make out a claim under § 1983, and (4) Cutrera failed to make out a state law tort claim. This appeal followed.

II.

We review the district court's court's summary judgment rulings de novo, applying the same standard as the district court. Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir.2002). The Court may grant summary judgment where there is "no genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). A "dispute about a material fact is `genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Mason v. United Air Lines, 274 F.3d 314, 316 (5th Cir.2001). Therefore, summary judgment is appropriate if the nonmovant fails to establish facts supporting an essential element of her prima facie claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mason, 274 F.3d at 316. In making the determination of whether summary judgment was proper, the Court reviews the facts, and all inferences drawn from those facts, in the light most favorable to the party opposing the motion. Jurgens v. EEOC, 903 F.2d 386, 388 (5th Cir.1990). We will not, however, "weigh the evidence or evaluate the credibility of witnesses. . . ." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Mason, 274 F.3d at 316.

III.

A.

1.

Cutrera argues first that the district court erred in concluding that she is not disabled for purposes of the ADA, as required to make out a prima facie case of discrimination under the ADA.² The term "disability" under the ADA means: "(A) a physical impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The EEOC's regulations state that the term "major life activities" includes "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).

The District Court granted summary judgment to Appellees on the grounds that Appellant failed to demonstrate that her vision impairment imposed a substantial limitation on her ability to see or work. Cutrera contends on appeal that the record reflects a genuine question of material fact regarding whether her impaired vision substantially limits the major life activities of seeing and working.

Our inquiry into whether Cutrera's impairment substantially limits her ability to see is guided by Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) and Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). In Kirkingburg, the Supreme Court held that the ADA "requires monocular individuals, like others claiming the Act's protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial." Kirkingburg, 527 U.S. at 568, 119 S.Ct. 2162. However, the Court also noted that monocular individuals do not have an "onerous burden" and that "people with monocular vision `ordinarily' will meet the Act's definition of disability." Id. In Sutton, the Supreme Court held that mitigating measures must be taken into account in judging whether an individual has a disability. Sutton, 527 U.S. at 482, 119 S.Ct. 2139 (holding that claimants with 20/200 vision or worse in both eyes who failed to meet the airline's minimum vision requirement of uncorrected visual acuity of 20/100 were not disabled within the meaning of the ADA because their vision was 20/20 or better corrected).

Thus, Cutrera must demonstrate that her vision impairment, taking into account any mitigating measures, substantially limits her ability to see in terms of her own experience. The record reflects that a fact issue is presented on this question. The testimony of both Cutrera and Dr. David Newsome, a specialist in retinal degeneration, demonstrates that Cutrera's visual impairment is not simply a lessening of visual acuity; it is a deterioration of vision from the inside of her visual field out. The most severe deterioration is in the center of her vision; she now has virtually no central vision in her left eye, and little in her right. Cutrera retains some limited peripheral vision primarily in her right eye, but is legally blind in her left eye. Although Cutrera's condition is currently stable, Dr. Newsome testified that it is very likely that Cutrera will continue to lose what little vision she now retains. Cutrera testified that she now does not believe it would be safe for her to drive, and has significant difficulty reading small type, handwriting, or any writing with poor contrast.

There is no known cure or treatment for Stargardt's disease, and the vision impairment cannot be corrected with mitigating measures such as eyeglasses, contact lenses, or surgery. Rather than adjusting to compensate for the vision impairment, as would occur in the normal case of reduced vision, Dr. Newsome testified that Cutrera's impairment forces her eyes to work against each other, impairing her ability to read and visually track moving objects. Rather than relying on her less-impaired eye, her more-impaired eye actively interferes with her vision.

Dr. Newsome's testimony regarding the extent of...