Hypes on Behalf of Hypes v. First Commerce Corp.

• Decision Date: 12 February 1998
• Docket Number: No. 96-31133,96-31133
• Parties: 21 Employee Benefits Cas. 2745, 4 Wage & Hour Cas.2d (BNA) 707, 7 A.D. Cases 1546, 11 NDLR P 351 David L. HYPES, Individually and on behalf of his minor child Sarah HYPES, and Megan Hypes, Plaintiffs-Appellants, v. FIRST COMMERCE CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 721

134 F.3d 721

21 Employee Benefits Cas. 2745,

4 Wage & Hour Cas.2d (BNA) 707, 7 A.D. Cases 1546,

11 NDLR P 351

David L. HYPES, Individually and on behalf of his minor child Sarah HYPES, and Megan Hypes, Plaintiffs-Appellants, v. FIRST COMMERCE CORPORATION, Defendant-Appellee.

No. 96-31133.

United States Court of Appeals Fifth Circuit.

Feb. 12, 1998.

William H. Reinhardt, Jr., William Martin McGoey, Reinhardt & McGoey, Metairie, LA, for Plaintiffs-Appellants.

Thomas J. McGoey, II, Robert B. Worley, Jr., The Kullman Firm, New Orleans, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

I.

PROCEDURAL HISTORY

Plaintiff-Appellant David Hypes (hereinafter "Hypes") worked for First Commerce Corporation (hereinafter "FCC") from February of 1993 to December 31, 1994. He was fired ostensibly for excessive absenteeism and tardiness. During the period of his employment, Hypes developed chronic obstructive lung disease, which he argues precipitated his absences and tardiness. On August 23, 1995, Hypes filed suit against FCC alleging violations of the Americans with Disabilities Act (hereinafter "ADA"), 42 U.S.C. § 12101, et seq., the Louisiana Civil Rights Act for Handicapped Persons (hereinafter "LCRHP"), La.Rev.Stat. Ann. § 46:2251, et seq., the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. § 623, et seq., the Louisiana Age Discrimination in Employment Act (hereinafter "LADEA"), La.Rev.Stat. Ann. § 23:971, et seq., and the Family Medical Leave Act (hereinafter "FMLA"), 29 U.S.C. 2601, et seq. Hypes also interposed claims for intentional infliction of mental distress and for loss of consortium. On January 19, 1996, the case was assigned a trial date of September 9, 1996.

FCC filed a motion for summary judgment on July 30, 1996. On August 2, 1996, with the trial date just over a month away, Hypes moved for leave to amend the complaint to allege that FCC terminated Hypes to avoid paying long-term disability benefits in violation of Section 510 of the Employee Retirement Income Security Act (hereinafter "ERISA"). 29 U.S.C. § 1140. On August 22, 1996, the Magistrate denied Hypes' motion to amend. The district court granted FCC's motion for summary judgment and judgment was entered thereon on August 30, 1996.

On September 5, 1996, Hypes filed an objection to the Magistrate's denial of leave to file a first amended complaint. On September 16, 1996, Hypes filed a motion to reconsider the judgment dismissing his claims. On October 1, 1996, the district court denied Hypes' objection to the Magistate's denial of

Hypes' motion to amend. On October 10, 1996, the district court denied Hypes' motion to reconsider. On October 28, 1996, Hypes filed a notice of appeal asserting the following alleged errors:

1. The district court erred by granting summary judgment;

2. The district court erred by upholding the magistrate judge's denial of plaintiff-appellant's motion to amend.

Since the evidence viewed in the light most favorable to Hypes will only support the conclusion that he was fired due to excessive absence not linked to his disability, and since the proposed accommodations, as a matter of law, are insufficient to allow Hypes to perform the essential functions of the job, we affirm the district court summary judgment. Furthermore, we find no abuse of discretion in the district court's denial of Hypes' eleventh-hour motion to amend. Therefore, we affirm.

II.

FACTS

Hypes was hired by FCC in February of 1993, as a loan review analyst assigned to a Consumer Assessment Team in the Independent Review Services Division. He worked in that position until April 27, 1994, when he was reassigned to a Commercial Portfolio Team. This reassignment was initiated by Hypes' immediate team leader, Bill Burnell, and the Independent Review Services Division leader, Kim Lee, ostensibly in response to a pattern of improperly documented absenteeism and tardiness, which naturally led to Hypes' inability to complete reports and projects on time. ¹ After his April, 1994, reassignment, Hypes' absenteeism and tardiness continued without proper documentation. On July 1, 1994, Hypes began to track his own attendance record, which demonstrated that he was absent on July 1, 6, 13, 26, 29 and August, 1 and 5, and worked half days on July 27 and 28 and August 2, 3 and 4.

On August 5, 1994, Hypes was diagnosed with chronic obstructive lung disease. On or about August 11, 1994, Hypes provided FCC with a letter from his physician, Dr. Brooks Emory, advising of Hypes' diagnosis and scheduled treatment beginning on August 12, 1994. Thereafter, Hypes was hospitalized for tests on August 15, 1994. In a statement dated August 25, 1994, Dr. Emory advised FCC that the date for Hypes' release was indeterminate but that the restrictions on Hypes were temporary. This prompted FCC to notify Hypes that he was eligible to receive short-term disability benefits at a rate of 100% of his pay for the period August 8 through 29, 1994. The letter also notified Hypes that time away from work during short-term disability was counted toward the twelve weeks for which he was eligible under FCC's Family Medical Leave Policy, a copy of which was enclosed with the letter. Hypes was also notified by telephone that he could use his vacation pay to cover an additional two weeks of absence through September 9, 1994.

Hypes' medical release from Dr. Emory, dated September 9, 1994, indicated that Hypes was able to return to work on September 12, 1994, to full activity, without restrictions. Hypes returned to work on September 13, 1994. The following day, September 14, Hypes met with Kim Lee and Marilyn Mays, FCC's Employee Relations Manager. At that time Hypes was informed that he would be expected to be at work on time, and, if he were medically unable, then the appropriate documentation would be necessary. Hypes expressed his concern that his condition would make it difficult if not impossible to be at work by 8:30 a.m., and therefore, he requested an accommodation, i.e., working without a neck tie and starting work later in the morning. However, since the release from Dr. Emory was without restriction, his request was denied. Hypes was instructed to obtain a revised release which would identify any further limitations. By letter dated September In spite of Dr. Emory's conclusion that Hypes should be able to get to work on time and work a full schedule, Hypes subsequently missed nine (9) full days (Sept. 19, 20, 26, 27, Oct. 11, Nov. 14, 15, 16, 30) and seventeen (17) half days (Sept. 21, 22, 28, Oct. 3, 5, 13, 17, 18, 20, 25, 28, Nov. 2, 9, 17, 18, 25, 29). There was no documentation by Hypes of the reason for the absenteeism and tardiness after September 19, 1994. Hypes' own notes reflect that in the five month period from July 1 through December 2, 1994, he missed sixteen (16) full days and twenty-three (23) half days of work, exclusive of the twenty-five (25) days he missed while on short-term disability leave. In his deposition testimony, Dr. Emory confirmed Hypes' ability to work a full schedule without restrictions both before and after the period of Hypes' short-term disability leave. Dr. Emory also testified in his deposition that during an office visit on September 28, 1994, Hypes had complained of difficulty getting started in the morning so that he could make it to work on time. Nevertheless, Dr. Emory apparently believed it was up to Hypes whether to get up an hour earlier so that he could make it to work on time. ² Therefore, no further restriction was obtained or produced by Hypes following the revised release from Dr. Emory on September 19, 1994, and, contrary to his promise in the April 27, 1993, meeting with Lee and Mays, Hypes provided no medical documentation to explain the absences after September 19, 1994. Because of Hypes' persistent absenteeism and failure to provide medical documentation to support these absences or the need for accommodation, Kim Lee informed Hypes that he no longer had a position in the Independent Review Services Division. The final decision to terminate Hypes was made by Marilyn Mays, and Hypes was removed from the payroll effective December 31, 1994. FCC has continually maintained that Hypes was fired for excessive unexplained absenteeism.

19, 1994, Dr. Emory advised FCC that travel might be exceedingly difficult for Hypes at that time, but did not identify any restrictions or limitations affecting Hypes' ability to attend work regularly, punctually and in appropriate attire.

III.

Did the district court err by granting summary judgment?

A. Standard of Review

"We review the district court's grant of summary judgment de novo, applying the same standards as the district court." Cleveland v. Policy Management Systems Corp., 120 F.3d 513, 515-16 (5th Cir.1997). If plaintiff lacks evidence sufficient to create a genuine issue of fact in support of a necessary element of a claim or claims, then summary judgment is appropriate against plaintiff on that claim. River Production Co., Inc. v. Baker Hughes Production Tools, Inc., 98 F.3d 857, 859 (5th Cir.1996) (citing Fed.R.Civ.P. 56(c)).

B. Law

All of the statutory schemes Hypes sued under prohibit intentional discrimination based on a specified motive. The ADA and LCRHP prohibit discrimination in employment against disabled persons, on the basis of a disability, when the disabled person can perform the essential functions of the job with reasonable accommodation, if necessary. 42 U.S.C. § 12101, et seq.; La.Rev.Stat. Ann., § 46:2254; Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir.1997) (discussing ADA); Turner v. City of Monroe, 634 So.2d 981 (La.App. 2 Cir.1994) (discussing LCRHP). The ADEA and LADEA prohibit discrimination in employment on the basis of age. 29 U.S.C. § 623, et seq.; La.Rev.Stat. Ann., § 23:972 (prohibiting...