Ingles v. Neiman Marcus Group

Decision Date30 July 1997
Docket NumberCivil Action No. H-95-5447.
PartiesRobert J. INGLES, Plaintiff, v. The NEIMAN MARCUS GROUP, d/b/a Neiman Marcus, Defendant.
CourtU.S. District Court — Southern District of Texas

Arlene S. Steinfield, Bryan P. Neal, Thompson & Knight, Dallas, TX, for Defendant.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court are Defendant The Neiman Marcus Group d/b/a Neiman Marcus's ("NMG") Motion for Summary Judgment (# 22) and Plaintiff Robert J. Ingles's ("Ingles") Motion for Partial Summary Judgment (# 24). NMG seeks summary judgment on Ingles's claim that it violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Ingles seeks partial summary judgment on the issue of NMG's liability under the ADA.

Having reviewed the pending motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that NMG's motion should be granted and Ingles's motion should be denied.

I. Background

Ingles was employed by NMG as a waiter at its Town and Country Mall location in Houston, Texas, from November 1988 until he resigned in November 1996. In the mid-to-late 1980s, Ingles was diagnosed with diabetes, although he did not experience symptoms until around 1990. The type of diabetes from which he suffers involves vascular disease and peripheral sensorimotor neuropathy affecting his feet. In 1991, Ingles developed an ulceration on his right foot, requiring surgery to amputate a toe and part of the bone behind the toe. As a result, Ingles did not work from January 1991 until April 1991. In late 1992, Ingles was diagnosed with a second ulcer, this time on his left foot, which led to his absence from work in late 1992 and again from April 1993 until July 1993. After returning to work for a few months, he was again absent from October 1993 to June 1995.

In November 1993, Ingles was notified that he was being terminated because he had exhausted all of his leave benefits, including thirteen weeks of sick time, available vacation, holidays, personal day, and birthday. In December 1993, after receiving correspondence from Ingles's attorney requesting that he be reinstated because his termination allegedly violated the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., NMG reinstated Ingles to his former position and restored his benefits. NMG later learned that Ingles was not covered by the FMLA due to the limited number of hours he had worked in the prior year. Consequently, as Ingles concedes, NMG was not obligated to reinstate him. Nevertheless, NMG allowed him to remain employed even after ascertaining that his prior discharge did not violate the FMLA.

In 1991, after his first surgery, Ingles's physicians requested that Ingles work only on carpeted floors at the restaurant. About two-thirds of the restaurant was carpeted; the other third was uncarpeted and had a hard, marble floor. Ingles claims that NMG accommodated his request to work only on carpeted surfaces after his 1991 surgery, but refused to accommodate him after his return to work in July 1993. Ingles contends that this failure to accommodate him led to further complications with his feet and necessitated more surgery in November 1993, causing him to be absent from work until June 1995.

Ingles filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in October 1993, asserting that NMG had failed to accommodate his disability in violation of the ADA. On December 21, 1993, Ingles filed a second charge of discrimination with the EEOC alleging that he was terminated in November 1993 in retaliation for filing his prior charge. On December 1, 1995, he filed this suit claiming that NMG violated the FMLA when it terminated his employment in 1993. In February 1996, Ingles received his right-to-sue letter from the EEOC on his first charge of discrimination. In March 1996, Ingles amended his complaint in this action to include a claim under the ADA, alleging that NMG had failed to accommodate his disability and had wrongfully terminated him while on medical leave. On March 20, 1996, Ingles received his second right-to-sue letter from the EEOC based on his charge that NMG terminated him in 1993 in retaliation for his filing the first EEOC charge. He never sought leave, however, to file a second amended complaint to include a claim for retaliation. Ingles resigned in November 1996, at which time he was working only on carpeted or matted surfaces in the restaurant. On September 26, 1996, Ingles's FMLA claim was dismissed with prejudice pursuant to an agreed order. Hence, Ingles's remaining claims are brought under the ADA.

II. Analysis
A. The Standard for Summary Judgment

Rule 56(c) provides that "[summary] judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). The moving party, however, need not negate the elements of the non-movant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).

Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1069, 1075. The controverted evidence must be viewed in the light most favorable to the non-movant, and all reasonable doubts must be resolved against the moving party. See Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401 402 n. 5, 112 L.Ed.2d 349 (1990); Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14; Judwin Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 435 (5th Cir.1992). Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant's burden." Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)); see Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552. "In such 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." Id. at 323, 106 S.Ct. at 2552.

B. Americans with Disabilities Act

The ADA is designed to prevent otherwise qualified individuals from being discriminated against in employment based on a disability. See 29 C.F.R. Part 1630; Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 160-61 (5th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996). The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a); see also Taylor, 93 F.3d at 162; Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.1995); Daugherty v. City of El Paso, 56 F.3d 695, 696 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1263, 134 L.Ed.2d 211 (1996); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir.1995). The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).

The language adopted in the ADA tracks that of the Rehabilitation Act of 1973, which provides in part that "`[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, ... be subjected to discrimination under any program or activity receiving federal financial assistance.'" White v. York Int'l Corp., 45 F.3d 357, 360 n. 5 (10th Cir.1995) (quoting 29 U.S.C. § 794(a)). "Because the ADA expressly requires its provisions to be interpreted in a way that `prevents imposition of inconsistent or conflicting standards for the same requirements' under the two statutes," case law interpreting the Rehabilitation Act may be relied upon in actions brought under the ADA. Id. (quoting 42 U.S.C. § 12117(b)); see also Bolton v. Scrivner, Inc., 36 F.3d 939, 942-43 (10th Cir.1994), cert. denied, 513 U.S. 1152, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995) (citing 29 C.F.R. Part 1630 App., § 1630.2(g)); Chandler v. City of Dallas, 2 F.3d 1385, 1391 n. 18 (5th Cir.1993), cert. denied, 511 U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994). "Thus, whether suit is filed against a...

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