Ellison v. Software Spectrum, Inc.

• Decision Date: 30 May 1996
• Docket Number: No. 95-10704,95-10704
• Citation: Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996)
• Parties: , 5 A.D. Cases 920, 8 NDLR P 109 Phyllis ELLISON, Plaintiff-Appellant, v. SOFTWARE SPECTRUM, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 187

85 F.3d 187

64 USLW 2772, 5 A.D. Cases 920, 8 NDLR P 109

Phyllis ELLISON, Plaintiff-Appellant, v.SOFTWARE SPECTRUM, INC., Defendant-Appellee.

No. 95-10704.

United States Court of Appeals Fifth Circuit.

May 30, 1996.

T. Wesley Holmes, James A. Fisher, Wendy R. Blight, Rader, Campbell, Fisher & Pyke, Dallas, TX, for plaintiff-appellant.

Donald Edward Uloth, Jennifer Burr Altabef, Locke, Purnell, Rain & Harrell, Dallas, TX, for defendant-appellee.

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

Before BARKSDALE, DeMOSS and PARKER, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Phyllis Ellison, who was treated for breast cancer, challenges the summary judgment granted her employer, Software Spectrum, Inc.(SSI), on her Americans with Disabilities Act (ADA) claim, contending, inter alia, that a material fact issue exists on whether she had the requisite "disability" under the ADA, 42 U.S.C. § 12102(2).Concluding otherwise, we AFFIRM.

I.

In January 1992, Ellison was employed as a "returns person" in SSI's Product Operations Department, after having worked there for two years as a temporary employee.The next January, when the returns position was eliminated, Ellison became a salaried buyer in the same department.She received a six percent raise after her January 1993 performance review.

In August 1993, Ellison learned that she had breast cancer, immediately had a lumpectomy, and received daily radiation treatment from mid-September through that October.She did not miss work while undergoing treatment but, at her request, SSI allowed her to work on a modified schedule.She arrived at work at 10:30 a.m. following her radiation therapy, skipped her lunch hour and morning break, and took work home.Improving steadily after the treatment ended, Ellison felt "back to normal" by February 1994.

Ellison received a lower evaluation on her January 1994 performance review, and received only a three percent raise; the company average was five percent.And, in early 1994, SSI decided to reduce the number of employees in Ellison's department from 35 to 31, effective that April.Three positions were eliminated, the number of buyers was reduced from eight to six, and a returns position was created.John Logan, Ellison's supervisor, and Jim Duster, Director of the Product Operations Department, evaluated and ranked each of the 35 employees.On March 2, Ellison and three other employees were informed that they had 30 days to find other positions in the company or leave.A vacancy developed for the returns position, however; based on her rating, Ellison was next in line for it.She was offered the position and accepted it in mid-March.

Five months later, Ellison filed suit in state court against SSI, claiming violations of the ADA and the Family Medical Leave Act (FMLA), as well as intentional infliction of emotional distress under state law.After SSI removed the action to federal court, Ellison amended her complaint to add an ERISA claim.The district court granted summary judgment for SSI on all but the FMLA claim, and entered a Rule 54(b) judgment for the ADA, ERISA, and emotional distress claims.

II.

Ellison contests the summary judgment only on her ADA claim.As is well known, we review a summary judgment de novo, applying the same standard as the district court: factual issues are considered in the light most favorable to the nonmovant, and the "judgment is proper when no issue of material fact exists and the moving party is entitled to judgment as a matter of law".Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725(5th Cir.1995);FED.R.CIV.P. 56."[T]he substantive law will identify which facts are material", and "[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, 2510, 91 L.Ed.2d 202(1986).

For the ADA claim, the court held that Ellison's breast cancer was not a requisite "disability" within the meaning of the ADA.Therefore, it did not rule on the other elements of that claim.(Likewise, because we conclude that summary judgment as to disability is proper, we need not reach those other elements, eliminating also the sub-issue of whether to remand for the district court to consider them first.)

The ADA defines "disability" using three alternatives:

(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 an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).It is undisputed that Ellison's cancer was an "impairment".¹Because she claims that a material fact issue exists for each of the three § 12102(2) alternatives, we will examine each subpart in turn.

A.

Subpart (A) concerns whether Ellison's impairment "substantially limit[ed]" one or more of her "major life activities".Although the ADA does not define "substantially limits" and "major life activities", the regulations promulgated by the Equal Employment Opportunity Commission"provide significant guidance".Dutcher, 53 F.3d at 726.They state that "[m]ajor life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working".29 C.F.R. § 1630.2(i).In district court, "working" is the only major life activity for which Ellison claimed a substantial limitation.²

The regulations provide that whether an impairment substantially limits a major life activity is determined in light of

(i) The nature and severity of the impairment;

(ii)The duration or expected duration of the impairment; and

(iii)The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

29 C.F.R. § 1630.2(j)(2).And, for the major life activity of "working", the regulations provide that

(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

(ii)In addition to the factors listed in paragraph (j)(2) of this section[quoted above], the following factors may be considered in determining whether an individual is substantially limited in the major life activity of "working":

(A) The geographical area to which the individual has reasonable access;

(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or

(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).

29 C.F.R. § 1630.2(j)(3).As hereinafter discussed, in light of the statute and these regulations, a material fact issue does not exist for this subpart.

In support of its summary judgment motion, SSI submitted the affidavit of Duster, the Product Operations Department director; he stated that no special accommodations were necessary for Ellison, and that at all times, she had demonstrated the physical and mental ability to work.SSI also submitted excerpts from Ellison's deposition; she testified that the radiation treatment made her nauseous and tired and she suffered an allergic reaction to the radiation which caused painful swelling and inflammation, but that the treatment did not affect her ability to do her job and she never missed a day of work.She testified further that her normal workday was seven and one-half hours; that she was able to work almost that amount while receiving treatment, by working from 10:30 a.m. until 6:00 p.m., with no lunch and only an afternoon break; and that she improved steadily after the radiation treatment was completed, and was back to normal in three or four months (by February 1994).

In opposition, Ellison submitted her physician's deposition; he stated that cancer can cause death if not treated and causes emotional distress from the fear that it will return.She submitted also the deposition of her former supervisor, Logan; he stated that Ellison was not as effective at work, and that the quality of her work suffered while she was receiving radiation treatment.And, in her affidavit, Ellison detailed the nausea, fatigue, swelling, inflammation, and pain she experienced as a result of the treatment and the medication she was given for her allergic reaction to the radiation, but stated that, although she constantly felt sick and fatigued, she"could perform [her] essential job responsibilities ... so long as [SSI] allowed [her] the accommodation of a modified work schedule so that [she] could attend appointments with [her] doctors and receive [her] treatments".

As stated, the summary judgment evidence, viewed in the light most favorable to Ellison, does not create a material fact issue on whether her cancer and treatment "substantially limited" her major life activity of working.Obviously, her ability to work was affected; but, as reflected in the above-quoted statute and regulations, far more is required to trigger coverage under § 12102(2)(A).

Along this line, Ellison contends that it is irrelevant both that SSI made reasonable accommodations in her work schedule and that her cancer was treated successfully.In support, citing 29 C.F.R. Pt. 1630, App. § 1630.2(h)(the...