Gore v. GTE South, Inc.

• Decision Date: 14 March 1996
• Docket Number: Civil Action No. 95-D-326-S.
• Citation: 917 F. Supp. 1564
• Parties: Mary G. GORE, Plaintiff, v. GTE SOUTH, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

917 F. Supp. 1564

Mary G. GORE, Plaintiff, v. GTE SOUTH, INC., Defendant.

Civil Action No. 95-D-326-S.

United States District Court, M.D. Alabama, Southern Division.

March 14, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenneth C. Sheets, Jr., Dothan, AL, for plaintiff.

William C. Carn, III, Dothan, AL, for defendant.

MEMORANDUM OPINION

DE MENT, District Judge.

Before the court is the defendant's motion for summary judgment filed September 29, 1995. Also before the court is the defendant's motion to strike filed February 20, 1996. In ruling on said motions, the court has considered the parties' respective briefs, as well as the replies and responses thereto.¹ After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendant's motion to strike is due to be denied in part and granted in part and that the defendant's motion for summary judgment is due to be granted.

JURISDICTION AND VENUE

Jurisdiction is proper pursuant to 28 U.S.C. § 1331 because the plaintiff alleges violations of the Americans with Disabilities Act, 42 U.S.C. § 12201 et. seq. and the Rehabilitation Act of 1973.² The plaintiff also alleges violations of Alabama statutory law. These purported violations transpired during the same transaction and occurrence as the alleged federal deprivations; therefore, the court may assert supplemental jurisdiction over the plaintiff's state law claim. See 28 U.S.C. § 1367(a).³ Personal jurisdiction and venue are uncontested.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "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.P. 56(c). As the Supreme Court has explained the summary judgment standard:

The plain language of Rule 56(c) 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 the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2549, 91 L.Ed.2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). 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, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by his own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed. R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11.

FINDINGS OF FACT

The plaintiff, Mary Gore ("Ms. Gore"), was hired as a temporary part-time operator for GTE Telephone Operations, a subsidiary of GTE Corporation ("GTE") in its Dothan, Alabama, Operations Center on March 29, 1993. Spear Aff. at 1. Ms. Gore's employment was temporary and part-time due to the anticipated closing of the Dothan Operations Center. This closing was originally projected for September 30, 1993, but was ultimately delayed until September 30, 1994. Ms. Gore knew at the time she was hired that her employment was temporary, and would terminate upon the closing of the Dothan Operations Center. Gore Dep. at 1516. Ms. Gore was hired after first failing to pass pre-employment examination, and then being allowed to subsequently retake those examinations. Gore Dep. at 13.

On September 8, 1993, Ms. Gore applied for a transfer to the Lexington, Kentucky Operations Center, where all operator services were to be located. Upon receipt of her request for transfer, GTE reviewed her record and determined that her rate of absenteeism was excessive. GTE's review of Ms. Gore's attendance record revealed that she had missed work on eight occasions for a total of forty-three hours, and had eight instances in which she was tardy. These absences and tardies occurred over a period of six months from March of 1993 through September of 1993. Thereafter, Ms. Gore was advised by letter dated November 23, 1993, that her transfer request was denied. At the time this decision was made, Ms. Gore had not identified herself as handicapped or as a disabled person in her transfer request, nor was such information solicited by GTE. Spear Aff. at 1-2.

A second transfer request was submitted to the Lexington office dated April 1, 1994. Ms. Gore's records were again reviewed, and GTE decided again not to approve her transfer. This review, which included her employment with GTE through March of 1994, reflected eighteen occurrences of absenteeism for a total of 407.75 hours, with nine instances of tardiness. Again, Ms. Gore did not identify herself as a handicapped or disabled person. Spear Aff. at 2.

Ms. Gore subsequently forwarded a letter dated May 12, 1994, requesting that her record again be reviewed and for the first time identifying herself as a disabled person. She stated in the letter that many of her absences were probably related to her disability, but this information did not change GTE's decision that her rate of absenteeism and tardiness was excessive, sporadic and unpredictable. Spear Aff. at 2.

The closing of the Dothan office was delayed until September 30, 1994. A decision was made by GTE to defer an official notification to Ms. Gore to see if her attendance record might improve prior to the time of the scheduled closing. Between March 16, 1994, and July 8, 1994, Ms. Gore had an absence of eight hours and one tardy for seven minutes. The absence was due to a swollen eye and the tardy was noted as "awards ceremony ran late." Spear Aff. at 3.

Ms. Gore is a disabled person due to a spina bifida condition which she has had since birth. Gore Dep. at 11. She claims that a majority of her absences and tardy occurrences were related in part to her disability. As such, GTE offered her the opportunity to rearrange her schedule or to "swap with other employees." Gore Dep. at 45-46; Jones Aff. at 1. However, only one of her absences was planned in advance. Gore Dep. at 44, 73-74. On the other hand, Ms. Gore adequately performed her job when she was able to be in physical attendance. Gore Dep. at 27.

On March 8, 1995, Ms. Gore commenced this action alleging that GTE violated the Americans with Disabilities Act ("ADA"), the Rehabilitation Act of 1973, and § 21-7-8 of the Code of Alabama. GTE contends that it is entitled to summary judgment on each of these claims. The court will address each of GTE's contentions below.

A. Motion to Strike

Before proceeding to the issues presented in the summary judgment motion, the court will first address GTE's motion to strike portions of Mary G. Gore's affidavit, found in paragraphs 3 and 5 on the grounds that these matters in the affidavit constitute hearsay, opinions and conclusory statements which are improper under Rule 56(e) of the Federal Rules of Civil Procedure.⁴ Specifically, Ms. White asserts that the following should be stricken:

3. After my employment with the GTE South of six months, I contacted the Communication Workers of America (Union) to inquire as to my present position and status. I was informed that after six months my position was no longer temporary according to GTE's contract with the Union. Additionally, I discussed my status with my supervisor, Phyllis Ward, she informed my that according to the employee guidelines and the union contract, I was no longer temporary.

5. ... Several individuals that were permitted to transfer to Kentucky that had missed as much or more days than I had during the course of my employment in the Dothan office. These individuals were Gloria Ford and Travis Everage. Additionally, my tardiness was nothing compared to Bennie Bennett who was tardy almost every day. These individuals were

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