Greenberg v. Bellsouth Telecommunications, Inc.

• Decision Date: 10 September 2007
• Docket Number: No. 06-15134 Non-Argument Calendar.,06-15134 Non-Argument Calendar.
• Parties: Allan L. GREENBERG, Plaintiff-Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

498 F.3d 1258

Allan L. GREENBERG, Plaintiff-Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellee.

No. 06-15134 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 10, 2007.

Stephen J. Polatnick, Miami, FL, for Greenberg.

Leon H. Lee, Jr., BellSouth Corp. Legal Dept., Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Allan Greenberg appeals the district court's grant of summary judgment in favor of his former employer, defendant-appellee BellSouth, in his employment discrimination lawsuit, which Greenberg filed pursuant to the ADA, 42 U.S.C. § 12101, et seq., and its Florida analogue, Fla. Stat. § 760.10, et seq.¹ On appeal, Greenberg argues that there are genuine issues of fact as to (1) whether he is disabled under the ADA and (2) whether he was terminated because of such a disability. We AFFIRM.

I. BACKGROUND

Greenberg, who is obese and suffers from other medical conditions, sued his former employer, BellSouth, alleging that BellSouth terminated him on the basis of a disability in violation of the ADA and its Florida law analogue, the Florida Civil Rights Act ("FCRA"). BellSouth denied that it had unlawfully terminated Greenberg.

A. Greenberg's Employment with BellSouth

Fernando Carbot was Greenberg's supervisor at BellSouth. Carbot's team is responsible for the installation and maintenance of telephone service. Under BellSouth's safe load limit policy, employees in jobs that required climbing could weigh no more than the safe load limit of the equipment used in their work groups. The manufacturers' safe load limit for the ladders, gaffs, bucket trucks, and safety belts used by Carbot's technicians is 300 pounds. The tool belt and tools used by each technician weighed 25 pounds. Consequently, Carbot's employees could weigh no more than 275 pounds. Because Greenberg's weight exceeded the safe load limit, Carbot "would hand-pick Mr. Greenberg's job assignments to make sure he did not get any assignments that would require him to climb."

According to Carbot, BellSouth hired another company, Concorde, in 2004 to track the weight of employees governed by the safe load limit policy. Carbot informed Greenberg that, unlike in the past, BellSouth's safe load limit policy would now be uniformly applied and that he would have to lose weight. In March 2004, Carbot gave Greenberg a weight loss timetable, under which Greenberg was required to lose 50 pounds over a period of 25 weeks in order to comply with the safe load limit. In September 2004, however, Concorde informed Carbot that Greenberg had not lost the required weight.

Carbot asserted that Greenberg was, at that point, given 60 days to find another job, and that Carbot gave Greenberg the contact information for Tom VanValkenburg, who worked in BellSouth's Human Resources Department and could help place Greenberg in another job within the company. After Greenberg failed to find another job within the specified time, BellSouth terminated him on 15 February 2005.

Greenberg suffers from "diabetes, hypertension, hypothyroidism and a variety of disorders that affect his endocrinology and that such physiological disorders cause him to be overweight and prohibit him from losing weight." R1-28, Exh. 3 at 14. He has stated that his diabetes is "[s]emi under control," and explained that it is "less than real bad but it isn't to the [blood sugar] numbers where they want you to be, where a normal person's [sic] supposed to be." R1-28, Exh. 1 at 15. He testified that he no longer exercises as much because he is "paranoid" and is concerned that his blood sugar will fall. Id. at 19. He also indicated that his diabetes prevents him from caring for himself because of concerns that his blood sugar might get very low.

As to his hypothyroidism, Greenberg testified that his condition causes him to have "dryness in the mouth sometimes" and makes him bigger and slower. Id. at 29, 34. He also stated that his thyroid condition: (1) affects his mental states; (2) causes him to sweat "like crazy"; and (3) causes his extremities to grow large. Id. at 30, 41-42. He said that hypertension causes him to get light-headed when he stands up after being seated.

Greenberg testified that at one point during the 1990s he attempted to lose weight but, after a period of success, found that he was "really messed up" as a result. Id. at 26-27. He explained, "I couldn't sleep very much, I couldn't walk very much, I couldn't do anything very much. I had stinging in my hands and in my feet, in my extremities. I was real dull. At that time my mind was really messed up . . . . I probably should have stayed home." Id. He also stated that he was diagnosed as being anemic. Following a later dieting attempt, Greenberg testified that he experienced a fainting spell, which led to hospitalization.

Greenberg did not recall any derogatory comments by BellSouth managers about his weight. Nor had he heard managers use the terms "disabled" or "disability" to describe him. Greenberg testified, though, that because limitations prevented him from doing the same work as his co-workers did, he felt isolated. He recounted that he occasionally felt light-headed while on the job and had to take a break "to get a little something in [his] system." Id. at 47. He testified that, in one instance, after a storm, he refused to scale a roof, worrying about whether roofs could support his weight and whether he might become light-headed while aloft.

Greenberg asserted that, if he had been given a stronger ladder, he could have climbed it. Greenberg testified that he informed BellSouth that a stronger ladder could accommodate his weight. When he requested that BellSouth purchase these ladders, however, he received no response. Greenberg testified that he was unsure if he could return to his entry level work as a lineman because the work was rigorous.

Greenberg stated that, toward the end of his career, he stopped working overtime because he could not stay out and miss a meal. He stated that, when he received the notification to lose weight, he did not think that he would be able to do it because of his past dieting difficulties.

Greenberg testified that he can bathe and dress himself. He stated that he does not work outside as much as before and stated, ". . . I don't want to work as hard, I don't want to lift as heavy a things as I used to try lifting." Id. at 44. He stated that he was physically able to walk but was "apprehensive about distances." Id. at 51.

He testified that he contacted BellSouth's human resources department and that they had informed him of a possible job answering phones in Pensacola, Florida. Greenberg concluded that he was not qualified for that job, because he neither answered phones nor typed. When asked if he had an interest in any position other than his previous position, he also responded in the negative.

B. Medical Evidence

Dr. Juan Mantilla, Greenberg's primary care physician, first treated Greenberg when Greenberg visited the emergency room following his fainting spell in July 2003. Mantilla stated that he could not conclusively determine why Greenberg had fainted. He stated that the fainting spell Greenberg had experienced could have been related to the weight loss that preceded it. Mantilla testified that he had consistently urged Greenberg to diet and exercise and knew of no medical condition that would prevent Greenberg from dieting and exercising. He added that Greenberg was physically active and was not limited in his ability to engage in normal activities. He testified that there was no limitation on Greenberg's activities associated with his diabetes and that his thyroid condition and hypertension were controlled by medication. Mantilla further stated that he did not know whether obesity or Greenberg's other health problems came first. He noted that Greenberg's high triglyceride level would not affect his ability to undertake ordinary life activities.

Dr. Robert Marema, whose practice involves medical and surgical weight loss, testified on behalf of BellSouth. Dr. Marema did not conduct a physical examination of Greenberg. Dr. Marema indicated that, in addition to Greenberg's other health problems, Greenberg likely suffered from undiagnosed sleep apnea, which would place him at an increased risk when operating machinery. Dr. Marema explained that he did not give Greenberg health recommendations because he was not one of Greenberg's treating physicians. He did not identify any activities that, if he were advising Greenberg, he would categorically tell Greenberg were medically unsafe. Rather, Dr. Marema stated that he would have discussed with Greenberg the need for lifestyle changes and the need to be aware of his risk factors. Dr. Marema stated that he would not have told Greenberg that exercise was a health risk that should be avoided.

As part of his assessment, Dr. Marema administered the Beck's Depression Index II ("BDI"), an assessment for depression, and an SF-36, which assesses quality of life. Greenberg's SF-36 score "was significant for multiple difficulties with routine activities indicating a moderate to severe level of impairment in [activities of daily living]." R1-28, Exh. 5. Dr. Marema testified that the BDI indicated that Greenberg suffered from moderate depression, but he did not state whether Greenberg's depression prevented him from engaging in ordinary life activities.

Dr. Marema's report indicated that Greenberg's medications were "modestly effective in controlling [his] obesity related co-morbidities but also have secondary effects of contributing to the condition of obesity as weight gain is a known side effect of these meds." Id. He stated:

[Greenberg's] prior commitment to medical weight loss is demonstrable by his loss of the predicted ten to...