Leicht v. Hawaiian Airlines Inc.

• Decision Date: 21 September 1999
• Docket Number: No. CIV. 98-00755 SOM.,CIV. 98-00755 SOM.
• Citation: 77 F.Supp.2d 1134
• Parties: Marie-Therese LEICHT, Plaintiff, v. HAWAIIAN AIRLINES, INC., Defendant.
• Court: U.S. District Court — District of Hawaii

77 F.Supp.2d 1134

Marie-Therese LEICHT, Plaintiff, v. HAWAIIAN AIRLINES, INC., Defendant.

No. CIV. 98-00755 SOM.

United States District Court, D. Hawaii.

September 21, 1999.

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Lunsford D. Phillips, Honolulu, HI, for plaintiff.

Sarah O. Wang, Marr Jones & Pepper, Honolulu, HI, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MOLLWAY, District Judge.

Plaintiff Marie-Therese Leicht ("Leicht") is suing her employer, Hawaiian Airlines, Inc. ("Hawaiian"). Leicht says that Hawaiian violated the Age Discrimination in Employment Act ("ADEA") and the Americans With Disabilities Act ("ADA") by permanently filling her former position when she was on an indefinite leave of absence undergoing treatment for lung cancer. She also claims that Hawaiian violated the ADA by allegedly failing to provide her with a comparable position when she returned to work. This alleged failure to provide her with either her former job or a comparable job is also the basis for Leicht's promissory estoppel claim. Hawaiian has moved for summary judgment.

This court grants Hawaiian's motion. Summary judgment is granted on the age discrimination claim because Leicht has not come forward with evidence creating a triable issue as to whether the nondiscriminatory reasons for not providing her with either her former job or a comparable job were a pretext for age discrimination. With respect to the ADA claim, the court recognizes that there are genuine issues of material fact as to whether Leicht is disabled. The court nevertheless grants summary judgment to Hawaiian on the ADA claim because Leicht has not met her burden of showing that, at the relevant times, she was able to perform the essential functions of the jobs she sought with or without reasonable accommodation. Finally, the court grants summary judgment on the promissory estoppel claim because there was no "promise" to provide Leicht with a job, and even if there had been, there is no evidence that Leicht detrimentally relied on such a promise.¹

BACKGROUND

In September 1996, Leicht, then 49 years old, was hired by Hawaiian to fill the newly created position of Director of Procedures and Training in the Customer Service Department. See Deposition of Marie-Therese Leicht ("Leicht Depo.") at 38-39 attached as Exhibit A to Defendant's Concise Statement of Facts. Her direct supervisor, Guy Hall, the Acting Vice President of Customer Service as of August 1997, was "about the same age as [Leicht]." Id. at 191.

In mid-October 1996, Leicht had a heart attack and underwent an angioplasty to open a blocked artery. Id. at 51-53. Leicht was out of work for two weeks, during which time Hawaiian paid her full salary. Id. at 54. Thereafter, Leicht worked reduced hours until she was able to return to normal work hours. Id. at 54-55.

In late August 1997, Leicht was diagnosed with lung cancer. Id. at 56-57. She was told she "had a couple of months to live" and less than a 1 percent chance of survival. Id. at 57-59.

On the day Leicht was diagnosed, she notified Hall of her diagnosis and prognosis and requested an immediate leave of absence. Hawaiian granted Leicht's request. Id. at 61-62. Leicht could not estimate a return-to-work date. Id. at 66-67, 178.

Leicht began her leave of absence by using her sick leave and vacation. After those days were exhausted, Hawaiian kept her on the payroll at full pay for almost three additional months, even though she was not working. Leicht was not eligible for temporary disability insurance benefits, but the additional three months on the payroll enabled her to qualify for benefits under Hawaiian's long-term disability plan. Id. at 107; Deposition of Michael Conroy ("Conroy Depo.") at 28-29, attached as Exhibit C to Defendant's Concise Statement of Facts.

In September 1997, Leicht went to Seattle for chemotherapy and radiation treatment. Leicht Depo. at 90-92. Hawaiian's Seattle station manager, Tim Hazel, had told Leicht about the Swedish Tumor Institute in Seattle and arranged for her to be seen at that facility. Hazel "literally opened up his home" to Leicht, allowing her to stay with him and assisting her during her treatment in Seattle. Id. at 60-61, 86-87, 90.

In mid-September 1997, Leicht's position as Director of Procedures and Training was posted as vacant, and a replacement was sought on a temporary basis. Deposition of Guy Hall ("Hall Depo.") at 38-39, attached as Exhibit B to Defendant's Concise Statement of Facts. According to Hall, it was necessary to fill the position permanently from an operational standpoint, and it had always been his intent to do so. Id. at 39-41, 44, 55. Hall had told Leicht at the outset that he was going to post her position as vacant and seek a permanent replacement because "[w]e need someone to fill the job." Leicht Depo. at 95.

Hall, as the department head, recommended Tyson Tajiri for the position. Hall Depo. at 47. According to Hall, Tajiri was already a member of the Customer Service Department and was "best suited to take on that position and direct it in a positive manner." Id. at 48. Hall says he was impressed by Tajiri's organizational skills, demeanor, willingness, and energy. Id. Tajiri assumed the Director position on a temporary basis on November 1, 1997. Deposition of Tyson Tajiri ("Tajiri Depo.") at 14, attached as Exhibit E to Defendant's Concise Statement of Facts. He was twenty-four years old at the time.

In mid-November 1997, after the first round of chemotherapy and radiation treatment, Leicht returned to Hawaii for three weeks to recuperate. Leicht Depo. at 92. She was met at the airport by a number of Hawaiian employees, including Hall and Michael Conroy, the then-Vice President of Human Resources. Id. at 100-02 (attached as Exhibit E to Plaintiff's Memo. in Opp.). Leicht says Conroy told her that Hawaiian would have to provide her with either her old job or a job comparable in title and salary if she was able to return to work. Id. at 105-06. At that time, Leicht's "prognosis was still up in the air," and she did not know if she would ever be able to return to work. Id. at 93, 107. For his part, Conroy does not recall the details of the conversation, other than that it included an exchange of pleasantries. Conroy Depo. at 11-13.

In early December 1997, Leicht returned to Seattle to assess the results of the first round of treatment. Leicht Depo. at 92, 115-16. On December 23, 1997, Leicht learned that tests showed no evidence of malignancy. Id. at 116-17. However, because of the possibility that there were still some cancer cells in her body, Leicht was encouraged to undergo another round of chemotherapy, which would last about four months. Id. at 118-19.

The next day, on December 24, Leicht called Hall and told him that she appeared to be in remission but would have to undergo another round of chemotherapy. Id. at 120-21. Leicht did not give Hall a return-to-work date. Id. at 122. She said, "hopefully, [she] would be back in May." Id. at 121.

During that December 24 telephone conversation, Leicht cannot recall whether Hall said that Leicht would have her former job back or that she would have "a job" if she returned. Id. at 124. She knows that he said, "[W]e are looking forward to seeing you come back to work." Id. Hall does not recall discussing the issue during the December 24 telephone conversation but does admit that, at some point, he told Leicht that, if she were able to return to work, there would be "a job" for her at Hawaiian. Hall Depo. at 38-40, 56-57, 60. According to Hall, it was never his understanding, and he did not convey to Leicht, that she would necessarily get her former job back. Id.

Leicht began a second round of chemotherapy, mostly on an out-patient basis, at the end of December 1997. Leicht Depo. at 131, 135. Leicht says she "was significantly restricted in breathing, standing, walking, sleeping, and all physical activities."² Declaration of Marie-Therese Leicht ("Leicht Dec.") ¶ 24. However, Leicht was able to tolerate the chemotherapy "pretty well" and was able to do such things as care for herself, eat, shop, and drive. Leicht Depo. at 136-37.

In mid-January 1998, in the midst of her second round of treatment, Leicht sent Conroy a letter thanking him for his support and requesting his assistance in publishing an open letter to all Hawaiian employees in the company newsletter. Id. at 128-29. The draft version of the letter states, "It definitely looks as though I will be able to return to work in a few months." Id. at 131. The draft was not actually sent to Hawaiian, and the final version of the letter, which is the only one Leicht says she sent, has not been produced by either party. Leicht does not recall whether the final version contained identical language. Id. at 131-33. She believes it may have stated that she "hope[d] to be back to work in May." Id. at 132-33. The draft letter also states, "I look forward to returning to work soon." Id. at 133. Leicht says that she thinks the final version of the letter contained this language.³ Id.

On February 19, 1998, Hawaiian permanently filled Leicht's former Director of Procedures and Training position. According to Hall, the temporary position filled by Tajiri needed to be converted to a permanent position to keep Hawaiian's "business going on a day-to-day [basis]"; "to maintain the organization, the training organization, in some form of operating efficiency"; and to give Tajiri the "credibility to be able to move the training department forward." Id. at 39, 41, 44.

Leicht's second round of chemotherapy ended in March 1998. In early April, Leicht's doctors released her from further treatment. Leicht Depo. at 135-36. At that time, Leicht was able to do "sedentary" tasks. Leicht Dec. ¶ 25. According to Leicht, her mental stamina was not greatly affected, but she was unable to "stand for more than a few minutes without a great deal of...