Hypes v. First Commerce Corp., Civil Action No. 95-2759.

• Decision Date: 27 August 1996
• Docket Number: Civil Action No. 95-2759.
• Citation: 3 F.Supp.2d 712
• Parties: David L. HYPES, et al., v. FIRST COMMERCE CORPORATION.
• Court: U.S. District Court — Eastern District of Louisiana

3 F.Supp.2d 712

David L. HYPES, et al., v. FIRST COMMERCE CORPORATION.

Civil Action No. 95-2759.

United States District Court, E.D. Louisiana.

August 27, 1996.

Order Denying Reconsideration, October 10, 1996.

COPYRIGHT MATERIAL OMITTED

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

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

ORDER AND REASONS

FELDMAN, District Judge.

Before the Court is the defendant's motion for summary judgment. For the reasons that follow, the motion is GRANTED.

Background

David L. Hypes sues his former employer, First Commerce Corporation (FCC), for wrongful discharge. Hypes claims that FCC violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et seq., the Louisiana Age Discrimination in Employment Act, La.Rev.Stat.Ann. § 23:971 et seq. (West 1985), the Louisiana Civil Rights Act for Handicapped Persons (LCRHP), La.Rev.Stat.Ann. § 46:2251 et seq. (West 1982), and other state law prohibitions against age and disability discrimination. The plaintiff also contends that his wife and daughter are entitled to damages for loss of consortium, under state law.

Hypes was hired by FCC on February 11, 1993 when he was 51 years old. On April 27, 1994 the plaintiff's team leader, Bill Burnell, and the Independent Review Services Team Leader, Kim Lee, met with the plaintiff to discuss his unsatisfactory performance.¹ During the meeting, Lee and Burnell both noted that Hypes had been excessively absent and late without excuse. The team leaders also informed the plaintiff that he had taken too long to complete reports and projects.

After the meeting, Hypes was reassigned to a different section of the company. FCC says that the change was prompted by Hypes' inaccurate time reports and FCC's conclusion that Hypes needed more supervision. The plaintiff was also warned that if his performance did not improve he could face additional measures, including further reassignment or termination. The plaintiff agreed he would improve his performance, provide a confirmation from a physician if he was absent from work, and inform Burnell, when he knew in advance, that he would be absent.

On July 1, 1994 the plaintiff began tracking his own attendance. His own notes reflect that he did not work for seven days, and worked only half days for five days during the period of July 1, 1994 to August 8, 1994. From August 8, 1994 to September 13, 1994 he did not report to work at all.

On August 11, 1994 the plaintiff provided FCC with a letter from his doctor. The letter stated that the plaintiff was seen six days earlier for treatment for difficulty breathing. The plaintiff was found to suffer with chronic obstructive lung disease. He was later hospitalized for tests. After the tests, his physician was unable to determine when the plaintiff could return to work, but assured FCC that his absence was only temporary. On September 9, 1996 Hypes' doctor advised FCC that the plaintiff could return to work on September 12, 1994.²

The plaintiff returned to work on September 13, 1994. The following day, he met with Lee and Marilyn Mays, FCC's Employee's Relation Manager, to discuss expectations about his attendance and performance. The plaintiff was told that he was expected to have regular and punctual attendance unless his doctor certified that the plaintiff required special accommodations. As a result, the plaintiff's doctor advised FCC that Hypes' condition would have a bearing on his job performance; the doctor stated that Hypes would be unable to travel, but did not suggest any further limitations.

During the next two and one half months, Hypes continued to miss work. In fact, he missed nine full days and 17 half days. Despite the plaintiffs continued absences, he did not provide medical documentation. In fact, the plaintiff admits that he went to North Carolina to attend a football game in mid-November, shortly before his termination in December. According to the defendant, the plaintiff was terminated because of excessive absences. The plaintiff filed suit claiming that his termination was motivated by age, disability and illness discrimination in violation of federal and state laws. FCC now moves for summary judgment.

I. Standard for Summary Judgment

Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50, 106 S.Ct. 2505 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir.1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987). Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

II. Application

A. ADA Claims

To make out a prima facie case under the ADA, one must establish that: (1) he suffers from a disability; (2) he is qualified for the job; (3) he was subject to an adverse employment action; and (4) he was replaced by a non-disabled person or was treated less favorably than a non-disabled person. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.1995); see also Judice v. Hospital Serv. Dist. No. 1, 919 F.Supp. 978, 981 (E.D.La.1996). Once the plaintiff has made out a prima facie case, the burden shifts to the defendant to "`articulate some legitimate nondiscriminatory reason'" for its action that adversely affected the employee. Id. (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If the employer does so, the burden returns to the plaintiff to show that the reason given is a pretext for discrimination. Id.

The defendant contends that the plaintiff cannot make out a prima facie case because he is not qualified for the job as required by the ADA. Under the ADA, a "qualified individual" is a person with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the person holds or desires. 42 U.S.C. § 12111(9)(A). Employers who fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability commit unlawful discrimination unless the accommodation would result in undue hardship. 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations include, but are not limited to, the following things: (1) making facilities accessible and usable; (2) acquisition or modification of equipment or devices; (3) job restructuring; (4) part-time or modified work schedules; and (5) reassignment to a vacant position. 42 U.S.C. § 12111(9)(A) and (B).

The ADA, however, does not require an employer to accommodate an employee who is not qualified for the job. An employee who cannot perform the essential functions of the position, with or without accommodation, is not a qualified individual. The defendant argues that the plaintiff was not qualified because he did not regularly report for work. It is undisputed that many of the plaintiff's absences can be traced to his chronic lung disease. Also, the plaintiff's performance while on the job has not been questioned. In fact, criticism of the plaintiff's performance is related to his absences, not to the quality of his work when he worked. For example, the plaintiff was often behind in his projects, a fact directly attributable to his poor attendance.

The defendant correctly urges that a disabled employee cannot establish that he is qualified under the ADA without demonstrating that he can maintain a reliable attendance. Several courts have held that where attendance is an essential aspect of the job, an individual who has frequent absences is unqualified. See Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir.1994) (housekeeping aide who missed several days of work was not qualified because his sporadic attendance rendered him incapable of performing daily tasks); Kennedy v. Applause, Inc., No. CV 94-5344, 1994 WL 740765 (C.D.Cal. Dec.6, 1994) (sales representative suffering from chronic fatigue syndrome who was unable to work regular hours was unqualified because reliable attendance was a minimum function of the job), aff'd, 90 F.3d 1477 (9th Cir.1996).

The Fourth Circuit addressed this issue in Tyndall v. National Education Centers, Inc. of Cal., 31 F.3d 209 (4th Cir.1994). Mary Tyndall was hired as an instructor. She suffered from...