Halperin v. Abacus Technology Corp., 96-2349

• Citation: 128 F.3d 191
• Decision Date: 18 September 1997
• Docket Number: No. 96-2349,96-2349
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 577, 73 Empl. Prac. Dec. P 45,356, 7 A.D. Cases 406, 25 A.D.D. 39, 10 NDLR P 344 Jay Lawrence HALPERIN, Plaintiff-Appellant, v. ABACUS TECHNOLOGY CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 191

128 F.3d 191

79 Fair Empl.Prac.Cas. (BNA) 577,

73 Empl. Prac. Dec. P 45,356, 7 A.D. Cases 406,

25 A.D.D. 39, 10 NDLR P 344

Jay Lawrence HALPERIN, Plaintiff-Appellant, v. ABACUS TECHNOLOGY CORPORATION, Defendant-Appellee.

No. 96-2349.

United States Court of Appeals Fourth Circuit.

Argued July 9, 1997.

Decided Sept. 18, 1997.

ARGUED: Alan Banov, Washington, DC, for Appellant. Gary Howard Simpson, Bethesda, MD, for Appellee.

Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge WILKINS and Judge HAMILTON joined.

OPINION

WILLIAMS, Circuit Judge:

Jay Lawrence Halperin appeals the district court's grant of summary judgment to his former employer on his claims of employment discrimination under the Americans with Disabilities Act (ADA), see 42 U.S.C.A. § 12101 (West Supp.1997), and the Age Discrimination in Employment Act (ADEA), see 29 U.S.C.A. §§ 621-634 (West Supp.1997). ¹ Halperin argues that summary judgment was inappropriate because he established a prima facie case of discrimination under both the ADA and the ADEA and because his employer's legitimate, nondiscriminatory reasons for terminating his employment were pretextual. We conclude that Halperin is neither a qualified individual with a disability nor the victim of intentional age discrimination. Accordingly, we affirm the judgment of the district court.

I.

The facts, set forth in the light most favorable to Halperin, reveal the following. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986) (holding that the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor). Abacus Technology Corporation (Abacus) is a research and consulting firm based in Chevy Chase, Maryland. Abacus derives its income from its contracts with the federal government and from billing its consultants' time to these contracts. In March of 1992, Halperin was hired by Abacus to work as a computer consultant on a contract with the General Services Administration.

On May 31, 1994, Halperin injured his lower back while attempting to lift a computer at work. Halperin's doctor diagnosed his condition as a lumbar strain and recommended a course of guided physical therapy. As a result of his injury, Halperin, with the help of Catherine Williams, Abacus' Manager for Administrative Services, filed a workers' compensation claim. Finding that Halperin was temporarily disabled, the Maryland Workers' Compensation Commission approved and paid his claim, retroactive to June 9, 1994.

Despite his lower back injury, Halperin was able to return to work, missing only six days between May 31 and October 31, 1994. In early November, however, Halperin found it difficult to perform some of the physical functions of his job, including walking, sitting, standing, and lifting. On November 3, 1994, Halperin decided to take an extended leave from work to recuperate. ²

In late December of 1994, Halperin's doctor cleared him to return to work with the restriction that he refrain from lifting more than 20 pounds. On January 4, 1995, Halperin met with Williams to discuss his transition back to work. Among other things, Halperin asked about the possibility of obtaining an ergonomically correct chair. After being assured that such a chair would be provided upon his return, Halperin met with Susan Suskin, his direct supervisor's supervisor. ³ Suskin stated that she was surprised to see Halperin because she neither knew that he was coming back to work nor had any work for him to do at the time. Nevertheless, the two discussed a couple of projects that he might work on, and Suskin suggested that he talk to his direct supervisor about them.

After meeting with Halperin, Suskin immediately informed William Magro, Abacus' Senior Vice President, that Halperin wanted to return to work but that she had no billable work for him at the time. Magro decided to terminate Halperin. After confirming that an employee on sick leave could be terminated if there was a lack of work, Magro verbally informed Halperin that he was being let go. Halperin was assured that his termination had nothing to do with his past performance. Instead, Magro emphasized that it was due to the "downturn in business" Abacus experienced during his absence, ⁴ (J.A.at 125), and the fact "that he did not know when[Halperin's] injury would permit [him] to return to work," (J.A. at 127). ⁵

Halperin's testimony regarding his ability to return to work is inconsistent. In his deposition, Halperin stated that he would not have been able to return to work for an additional five months. However, in a sworn affidavit, filed in response to Abacus' motion for summary judgment, Halperin stated that he was "ready and willing to work" on January 4, 1995, (J.A. at 133), the day he visited Abacus to discuss his transition back to work.

Shortly after terminating Halperin, Abacus hired 36-year-old Galina Diggs. According to Halperin, who was by then 48 years old, Diggs was assigned to perform work similar to that which he had formerly performed. Halperin contends that his qualifications for the position were better than those of Diggs, but that Abacus hired her because she was younger and could be paid less. Brian Gallant, Diggs' supervisor, eventually recommended that she be discharged due to poor performance and that Halperin be rehired. Senior management rejected both recommendations.

On October 20, 1995, Halperin filed a complaint in the United States District Court for the District of Maryland, alleging that he was discharged by Abacus in violation of the ADA, see 42 U.S.C.A. § 12101, and the ADEA, see 29 U.S.C.A. §§ 621-634. Following a lengthy period of discovery, Abacus moved for summary judgment on both claims. After extensive briefing and oral argument, the district court granted Abacus' motion. In ruling on Halperin's ADA claim, the district court found that Halperin was not a"qualified individual with a disability" because he was not "able to meet the attendance requirements of the job." (J.A. at 587). In ruling on his ADEA claim, the district court found that Halperin could not establish that Abacus' legitimate, nondiscriminatory reasons for terminating his employment were pretextual. This appeal followed.

II.

On appeal, Halperin contends that he established a prima facie case of discrimination under both the ADA and the ADEA, and that Abacus' legitimate, nondiscriminatory reasons for terminating his employment were pretextual. As a result, he argues that the district court erred in granting summary judgment to Abacus. We review de novo the district court's decision to grant Abacus summary judgment. See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986).

Absent direct evidence of discrimination, Halperin must satisfy the three-step proof scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to prevail on his ADA and ADEA claims. ⁶ First, Halperin must establish, by a preponderance of the evidence, a prima facie case of discrimination. Once established, the burden shifts to Abacus to "rebut the presumption of discrimination by producing evidence that the plaintiff was [terminated] ... for a legitimate, nondiscriminatory reason." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If Abacus meets its burden of production, the presumption raised by the prima facie case is rebutted and "drops from the case," id. at 255 n. 10, 101 S.Ct. at 1095 n. 10, and Halperin bears the ultimate burden of proving that he has been the victim of intentional discrimination, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11, 113 S.Ct. 2742, 2746-50, 125 L.Ed.2d 407 (1993). With this framework in mind, we address Halperin's claims in turn.

A.

Halperin first challenges the district court's decision to grant Abacus summary judgment on his ADA claim. The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C.A. § 12112(a) (West 1995). Therefore, to establish a prima facie case under the ADA, Halperin must prove that (1) he has a disability; (2) he is otherwise qualified for the job in question; and (3) he was discharged solely because of his disability. See Doe v. University of Maryland Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.1995); see also Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir.1997); Williams v. Channel Master Satellite Sys. Inc., 101 F.3d 346, 348 (4th Cir.1996), cert. denied, 520 U.S. 1240, 117 S.Ct. 1844, 137 L.Ed.2d 1048 (1997).

Halperin contends that the district court erred in finding that he was not "otherwise qualified" for the job in question. Under the ADA, an individual is "otherwise qualified" if he,"with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C.A. § 12111(8). In other words, an individual is"otherwise qualified" only if he is "able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60...