Patrick v. Southern Co. Services

• Decision Date: 09 January 1996
• Docket Number: No. CV 94-PT-1106-S.,CV 94-PT-1106-S.
• Citation: 910 F. Supp. 566
• Parties: Jennie R. PATRICK, Plaintiff, v. SOUTHERN COMPANY SERVICES, Defendant.
• Court: U.S. District Court — Northern District of Alabama

910 F. Supp. 566

Jennie R. PATRICK, Plaintiff, v. SOUTHERN COMPANY SERVICES, Defendant.

No. CV 94-PT-1106-S.

United States District Court, N.D. Alabama, Southern Division.

January 9, 1996.

Samuel Fisher, James Alan Mendelsohn & Amy W. Sinnott, Gordon Silberman Wiggins & Childs, Birmingham, AL, for plaintiff.

John R. Carrigan & Marcel L. Debruge, Balch & Bingham, Birmingham, AL, Chris Mitchell & Thomas A. Davis, Constangy Brooks & Smith, Birmingham, AL, for defendant.

MEMORANDUM OPINION

PROPST, District Judge.

This cause comes on to be heard on defendant's Motion For Summary Judgment filed on October 31, 1995. The court will not repeat the oft stated principles applicable to consideration of motions for summary judgment. The principles applicable to such consideration in employment discrimination cases are summarized in Earley v. Champion Int. Corp., 907 F.2d 1077 (11th Cir.1990).

Plaintiff has dismissed her retaliation claim. Remaining to be considered are an American with Disabilities Act (ADA) claim, a race discrimination claim and a sex discrimination claim, all relating to the termination of plaintiff's employment.

ADA Claim

It is axiomatic that before plaintiff can maintain an ADA claim, she must offer substantial evidence that she is "disabled." The initial story of ADA has been the attempt of persons to stretch the intent of ADA with regard to alleged "disabilities." Much of the criticism of the ADA in practice has come from the truly disabled who recognize that such attempted stretches can cause negative reaction to the Act and perhaps undermine its true purposes.

The ADA defines "disability" as including individuals who have (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such impairment." 42 U.S.C. § 12102(2).

The "Findings" attendant to ADA give some indication of what type "disabilities" were intended to be covered.

42 U.S.C. § 12101

(a) Findings

. . . . .

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.

. . . . .

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

. . . . .

(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

. . . . .

(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

The EEOC Compliance Manual with reference to ADA includes the following language:

Substantially Limits

An impairment is substantially limiting if it prohibits or significantly restricts an individual's ability to perform a major life activity as compared to the ability of the average person, in the general population to perform the same activity.

. . . . .

An impairment substantially limits an individual's ability to work if it prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes.

An employer regards an individual as having an impairment that substantially limits the major life activity of working if it treats the individual as having an impairment that disqualifies or significantly restricts the individual from working in a class of jobs or a broad range of jobs in various classes.

. . . . .

The ADA uses the terms "disability" and "individual with a disability" rather than the terms "handicap" and "handicapped person" or "individual with handicaps." The use of these terms "represents an effort by Congress to make use of up-to-date, currently accepted terminology." The change in phraseology does not reflect a change in definition or substance.

. . . . .

... It often is less clear whether a person's physical or mental condition constitutes an impairment of sufficient degree to establish that the person meets the statutory definition of an individual with a "disability."

. . . . .

The first part of the definition covers persons who actually have physical or mental impairments that substantially limit one or more major life activities. The focus under the first part is on the individual, to determine if (s)he has a substantially limiting impairment. To fall under the first part of the definition, a person must establish three elements:

(1) that (s)he has a physical or mental impairment

(2) that substantially limits

(3) one or more major life activities.

. . . . .

... A history or perception of an impairment that substantially limits a major life activity is a "disability." These parts of the definition reflect a recognition by Congress that stereotyped assumptions about what constitutes a disability and unfounded concerns about the limitations of individuals with disabilities form major discriminatory barriers, not only to those persons presently disabled, but also to those persons either previously disabled, misclassified as previously disabled, or takenly perceived to be disabled.

. . . . .

The person claiming to be an individual with a disability as defined by the first part of the definition must have an actual impairment. If the person does not have an impairment, (s)he does not meet the requirements of the first part of the definition of disability. Under the second and third parts of the definition, the person must have a record of a substantially limiting impairment or be regarded as having a substantially limiting impairment.

. . . . .

This section frequently refers to the term "impairment" in the present tense. These references are not meant to imply that the determination of whether a condition is an impairment is relevant only to whether an individual meets the first part of the definition of "disability," i.e., actually has a physical or mental impairment that substantially limits a major life activity. This determination also is relevant to whether an individual has a record of such an impairment or is regarded as having such an impairment.

. . . . .

A diagnosis is relevant to determining whether a charging party has an impairment. It is important to remember, however, that a diagnosis may be insufficient to determine if the charging party has a disability. An impairment rises to the level of a disability when it substantially limits one or more major life activities.

. . . . .

Further, a characteristic predisposition to illness or disease is not an impairment. 29 C.F.R. pt. 1630 app. § 1630.2(h). A person may be predisposed to developing An illness or a disease because of factors such as environmental, economic, cultural, or social conditions. This predisposition does not amount to an impairment.

. . . . .

The mere presence of an impairment does not automatically mean that an individual has a disability.

. . . . .

The fact that a contagious disease is an impairment does not automatically mean that it is a disability. To be a disability, an impairment must substantially limit (or have substantially limited or be regarded as substantially limiting) one or more major life activities.

. . . . .

This section frequently refers to the term "substantially limits" in the present tense. These references are not meant to imply that the determination of whether an impairment is substantially limiting is relevant only to whether an individual meets the first part of the definition of "disability," i.e., actually has a physical or mental impairment that substantially limits a major life activity. This determination also is relevant to whether an individual has a record of such an impairment or is regarded as having such an impairment.

The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

ii. In addition to the factors listed in paragraph (j)(2) of this section, the following factors may be considered in determining whether an individual is substantially limited in the major life activity of "working":

(A) The geographical area to which the individual has reasonable access;

(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or

(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes). 29 C.F.R. § 1630.2(j)(3) (emphasis in the original).

As the regulation makes clear, an impairment that prevents an individual from working at one particular job, because of

...