Dade v. Southwestern Bell Tel. Co.

• Decision Date: 30 May 1996
• Docket Number: Civil Action No. 95-0683.
• Citation: 942 F.Supp. 312
• Parties: Linda DADE, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Texas

942 F.Supp. 312

Linda DADE, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant.

Civil Action No. 95-0683.

United States District Court, S.D. Texas, Houston Division.

May 30, 1996.

COPYRIGHT MATERIAL OMITTED

Joel D. Mallory, Houston, TX, for Plaintiff.

Danny Michael Chappell, Tracey Noblitt Ellison, Southwestern Bell Tel. Co., Bellaire, TX, for Defendant.

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

STACY, United States Magistrate Judge.

Before the Magistrate Judge is Defendant Southwestern Bell Telephone Company's ("SWBT") Motion for Summary Judgment (Document No. 15) pursuant to Rule 56 of the Federal Rules of Civil Procedure. On June 9, 1995, the parties consented to trial before United States Magistrate Judge Frances H. Stacy. Pursuant to such consent, United States District Judge Melinda Harmon referred the case for all matters to Magistrate Judge Stacy.

Following a hearing on April 4, 1996,¹ on the motion for summary judgment, and based on a review of the motion, the submissions of Defendant, Plaintiff's Response to the Motion for Summary Judgment (Document No. 19), and the evidence in the record, the Magistrate Judge ORDERS, for the reasons set forth below, that Defendant Southwestern Bell Telephone Company's Motion for Summary Judgment be GRANTED in part and DENIED in part.

I. Background

On February 5, 1996, Defendant filed its Motion for Summary Judgment, seeking summary judgment on each of Dade's claims: violation of the Americans with Disabilities Act ("ADA" or "Act"), negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of § 451.001 of the Texas Labor Code (retaliatory discharge).

Dade was employed by the Defendant from February 1990 until February 4, 1993, when she was terminated. On December 10, 1992, Dade filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging harassment, unwarranted disciplinary citations, discrimination in violation of Title VII based on race, and retaliation for protesting disparate treatment based on race. Plaintiff's Response to SWBT's Motion for Summary Judgment at Exhibit 2.

On December 24, 1992, Dade met with management and her Union Steward to inform them that "she was completely stressed out due to her work situation and that she intended to seek medical treatment." Plaintiff's Response to SWBT's Motion for Summary Judgment at 2. Plaintiff was hospitalized at West Oaks Hospital from December 29, 1992 through January 15, 1993. On the first day of hospitalization, Dade completed the necessary paperwork to receive disability benefits from SWBT. Dade attempted to return to work on January 18, 1993, when she was called into the Union's offices to meet with SWBT and Union representatives. At the meeting, Plaintiff's employment was suspended pending termination, which occurred February 4, 1993.

On April 26, 1993, Dade amended her EEOC complaint with the EEOC to include her February 4, 1993 discharge, alleging that the termination "was an act of retaliation for filing a discrimination charge against the Respondent [SWBT]." Plaintiff's Response to SWBT's Motion for Summary Judgment at Exhibit 2.

Dade filed a second complaint with the EEOC on September 12, 1994, citing the date of filing the complaint as the date of the most recent act of discrimination. The complaint was grounded in the same prejudice, harassment and retaliatory termination alleged in the first and second complaints referring to events in the months of December 1992, January 1993, and February 1993, however, Dade was not employed by the Defendant at the time the second charge was filed. She claimed in the second charge that an attorney "advised [her] that she needed another right to sue letter." Plaintiff's Response to SWBT's Motion for Summary Judgment at Exhibit 3.

Two days later, on September 14, 1994, Plaintiff pursued the remedies available to her as a member of the Communication Workers' Union. According to SWBT and the Union's Collective Bargaining Agreement, a review and arbitration on Dade's case was held on September 14, 1994. Dade received back pay and was reinstated on January 9, 1995. Plaintiff's Response to SWBT's Motion for Summary Judgment at Exhibit 1.

Plaintiff filed her original complaint in this suit on March 7, 1995. On February 5, 1996, Defendant filed its Motion for Summary Judgment, seeking summary judgment on each of Dade's claims.

II. Summary Judgment Standard

The United States Supreme Court has held that Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish an essential element of that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Rule 56(c) of the Federal Rules of Civil Procedure 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). This standard provides that the mere existence of some factual dispute will not defeat a motion for summary judgment. See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir.1993); Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992). Rather, Rule 56 mandates that the fact dispute be genuine and material. Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 314 (5th Cir.1995). The substantive law determines which facts are material, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986), and the Court must view these facts and the inferences to be drawn from them in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Kelley v. Price Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir.1993); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).

The party moving for summary judgment bears the initial burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-27, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986). Once this burden has been met, the non-moving party can resist the motion for summary judgment by making a positive showing that a genuine dispute of material fact does indeed exist and that it consists of more than bare allegations in briefs and pleadings. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553. "This burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). Once the parties have submitted evidence of contradictory facts, justifiable inferences are to be drawn in the light most favorable to the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

Even if the standards of Rule 56 are met, a court may deny a motion for summary judgment if, in its discretion, it determines that "a better course would be to proceed to a full trial." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514; Veillon v. Exploration Services, Inc., 876 F.2d 1197, 1200 (5th Cir.1989).

III. Dade's first EEOC charge and subsequent amendment should be barred as a matter of law for failure to comply with 42 U.S.C. § 2000e-5(f) of the ADA.

Defendant claims that Dade cannot assert a claim under the ADA because Dade has failed to exhaust her administrative remedies. Specifically, Defendant contends that Dade failed to file an EEOC charge as required by the Act.² Additionally, Defendant argues that Dade has exceeded the 300 day deadline for filing EEOC charges as provided in the Act. However, both the foregoing arguments fail, as Dade has submitted to the Court an EEOC charge filed on December 10, 1992, and an amended EEOC charge filed on April 26, 1993. Plaintiff's Response to SWBT's Motion for Summary Judgment at Exhibit 2. Notwithstanding the foregoing, the Court finds that Dade failed to timely bring the instant suit pursuant to the requirements of the ADA by failing to initiate this suit within 90 days of receipt of her EEOC right-to-sue letter.

The ADA has adopted Title VII's procedure for filing charges in employment related claims. Hilliard v. BellSouth Med. Assist. Plan, 918 F.Supp. 1016, 1025 (S.D.Miss.1995); McNeill v. Atchison, Topeka & Santa Fe Railway Co., 878 F.Supp. 986, 989 (S.D.Tex.1995). Specifically, the ADA incorporates the "powers, remedies, and procedures" of Title VII of the Civil Rights Act of 1964, as amended by 42 U.S.C. § 2000e-5. Danese v. Trans Gulf, Inc., 1995 WL 498870, 1 (E.D.La.1995). Thus, cases which interpret Title VII are equally applicable to Dade's complaint. See James v. Texas Dept. of Human Servs., 818 F.Supp. 987, 990 (N.D.Tex.1993) (requiring an ADA plaintiff to follow Title VII's administrative requirements).

First, the Act requires a claimant to file a charge with the EEOC within 300 days after the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e); Mennor, 829 F.2d at 554-55 (5th Cir.1987). After filing the EEOC charge, the claimant must wait for a right-to-sue letter from the EEOC. Filing the EEOC charge and receiving the right-to-sue letter comprise an employee's administrative remedies. The purpose of...