Todd v. Academy Corp., CIV. A. 98-1620.

• Court: U.S. District Court — Southern District of Texas
• Writing for the Court: Hittner
• Citation: Todd v. Academy Corp., 57 F.Supp.2d 448 (S.D. Tex. 1999)
• Decision Date: 05 August 1999
• Docket Number: No. CIV. A. 98-1620.,CIV. A. 98-1620.
• Parties: James Henry TODD, Plaintiff, v. ACADEMY CORP., Defendant.

57 F.Supp.2d 448

James Henry TODD, Plaintiff, v. ACADEMY CORP., Defendant.

No. CIV. A. 98-1620.

United States District Court, S.D. Texas, Houston Division.

August 5, 1999.

Joseph Y. Ahmad, Ahmad & Zavitsanos, Houston, TX, for Plaintiff.

Jess M. Irwin, III, Herring and Irwin, Austin, TX, for Defendant.

ORDER

HITTNER, District Judge.

Pending before the Court is the Motion for Summary Judgment filed by defendant Academy Corp. ("Academy"). After reviewing the motion, the submissions, and the applicable law, the Court has determined that motion should be granted.

Plaintiff is a 42-year old male who has had epilepsy since he was 5 years old. Since the age of five, he has taken medication to control his epilepsy. Although the medication is successful in controlling the epilepsy, it does not cure it. Despite the medication, Plaintiff continues to have "light" seizures, which typically last from five to fifteen seconds, at the rate of approximately one per week.¹ Plaintiff is able to recognize the onset of one of these "light" seizures and is then able to lie down in a separate location removing himself and others from potential danger. Plaintiff testified at his deposition that he suffered from approximately eight of these "light" seizures in the five months during which Plaintiff was employed by the Defendant. The Court notes, however, that in an affidavit submitted to the Equal Employment Opportunity Commission ("EEOC"), Plaintiff estimated the number of seizures he had at work to only three or four.

Plaintiff began working at Academy in September of 1996 as a stocker. His duties at Academy were to take merchandise off pallets, to put it in bins, and to use a scanner gun to inventory and stock the merchandise. He earned approximately $5.00 per hour. While employed in this position, Plaintiff had several supervisors. His immediate supervisor was Julie Quintana. Ms. Quintana's immediate supervisor was Kalpesh Patel, who was the operations manager for hard lines. Mr. Patel's supervisor was Al Powell. Mr. Powell was the Vice-President for Logistics and the manager of the Distribution Center in which Mr. Todd, Ms. Quintana, and Mr. Patel worked.

Within the first few weeks of being hired at Academy, Plaintiff suffered his first seizure at work. After this initial seizure, Plaintiff met with Mr. Patel and Mr. Powell to discuss the situation. In this meeting, Mr. Powell inquired about Plaintiff's condition. At that time, Plaintiff admitted that he suffered from epilepsy and asked if it would be a problem. Powell stated that it would not be a problem and that Plaintiff should just "go on back to work." The only thing demanded of Plaintiff, in connection with his epilepsy, was he was required to inform Mr. Patel if he were to have a seizure. Soon after this meeting with Mr. Patel and Mr. Powell, Plaintiff conducted a meeting with Mr. Patel, Ms. Quintana, and all of his co-workers to inform them of his epilepsy and to give them instructions of what to do if he were to have a seizure at work.

Plaintiff was absent from work from February 10, 1997 through February 14, 1997. Upon Plaintiff's return to work on February 17, he was informed of his termination and the possibility of rehire upon reapplication. The reason given for his termination was that he violated the "failure to report to work policy." This work policy, as stated in the Defendant's employee manual provides that termination would result from an employee failing to report to work for "three consecutive days without notifying [his] supervisors." Plaintiff submitted an application for rehire but his application was rejected.

It is undisputed that on February 10 and February 11, 1997, Plaintiff suffered from the stomach flu which rendered him unable to attend work on those days. On each of those days, Plaintiff placed a phone call to Mr. Patel and left him a voice mail message informing him of his illness and unavoidable absence. It is also undisputed that Plaintiff was absent from work on the remaining days of that week and that Plaintiff called Mr. Patel each of those mornings and informed him via voice mail of his inability to work.² Defendant contends that while Plaintiff did not necessarily violate the policy as written, that Plaintiff violated a long-standing unwritten policy which provided for the termination of an employee who misses three consecutive days when he did not have sick or vacation leave, and the Family Medical Leave Act was not applicable to his absence.³ Therefore, termination was appropriate and wholly unrelated to his condition.

In light of the Plaintiff's belief that the proffered reason given by the Defendant for his termination was mere pretext for discrimination, in May of 1998 Plaintiff, James Todd, filed suit against Academy alleging disability discrimination in violation of the Americans with Disabilities Act ("ADA"). Plaintiff alleges he was subjected to different terms and conditions of employment, was terminated, and was refused rehire due to his suffering from a disability. Defendant subsequently filed the present motion for summary judgment claiming entitlement to judgment as a matter of law.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56(c). Thus, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.1990).

The ADA proscribes that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination under the ADA, Plaintiff must show that:

(1) he suffers from a disability;

(2) he is a qualified individual for the job in question; and

(3) an adverse employment decision was made because of his disability.

Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir.1999); see also 42 U.S.C. § 12112(a).⁴ Should the plaintiff carry his burden, the burden would shift to the defendant to proffer a legitimate, non-discriminatory reason for its action. If satisfied, the burden shifts once again to the plaintiff to rebut the justification given by the defendant by demonstrating that the justification given was merely a pretext for discrimination. Daigle v. Liberty Life Insurance Co., 70 F.3d 394, 396 (5th Cir. 1995).

The threshold issue in a plaintiff's prima facie case of discrimination under the ADA is a showing that he suffers from a disability protected by the ADA. Talk, 165 F.3d at 1024 (citing Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir.1996)). Under the ADA, a disability is defined as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual...." 42 U.S.C. § 12102(2).⁵

The Supreme Court has promulgated a three-step process in determining whether plaintiff has a disability pursuant to the ADA. First, the court must consider whether the condition in question constitutes a physical impairment. Second, the court must identify the plaintiff's life activity and determine if it classifies as a "major life activity" under the ADA. Finally, the court must ask whether the plaintiff's impairment substantially limits the major life activity. Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998); Equal Employment Opportunity Commission v. R.J. Gallagher Company, 181 F.3d 645, 652 (5th Cir.1999).

It is without question that Plaintiff suffers from a physical impairment within the meaning of § 12102(2). Plaintiff suffers from epilepsy which is defined as a "disorder of the nervous system, usually characterized by fits of convulsions that end with loss of consciousness." Random House College Dictionary 444 (Revised Ed.1984). Without medication, Plaintiff would suffer daily seizures, including grand mal seizures which involve loss of consciousness, general thrashing, and tonoclonic activity. Epilepsy qualifies as a physical impairment for the purposes of defining disability under the ADA requirements.

The life activity most applicable to the Plaintiff in the present case is working. The EEOC regulations define major life activities as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(I). Based on these guidelines, courts have concluded that working falls within the category of major life activities. R.J. Gallagher Company, at 652-53. In addition to working, Plaintiff identifies other life activities such as walking, talking, thinking and learning which are potentially affected by his epilepsy. It is uncontroverted that during a seizure Plaintiff is not able to work, walk, talk or think very clearly. It is also uncontroverted that the combination of the medication and the disease itself may cause a reduction in thinking capacity and a reduction in intellectual functioning. These additional life activities, upon which the Plaintiff relies, are also considered major life activities pursuant to the EEOC guidelines.

The third step in determining disability status is to determine whether the physical impairment results in a substantial limitation on the major life activities relied upon by the Plaintiff. The Court concludes that it does not. This element of the definition of disability has undergone serious changes in light of the recent Supreme Court opinion in Sutton v. United Airlines, Inc., ___...