"ConA-gra cannot escape its obligation to evaluate Rodriguez’s actual abilities, notwithstanding his diabetes, by blindly relying on the assessment of Dr. Morris.”
How later courts described this case
- "ConA-gra cannot escape its obligation to evaluate Rodriguez’s actual abilities, notwithstanding his diabetes, by blindly relying on the assessment of Dr. Morris.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2005
Charles R. Fulbruge III
No. 04-11473 Clerk
RUDY RODRIGUEZ,
Plaintiff-Appellant,
versus
CONAGRA GROCERY PRODUCTS COMPANY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
--------------------
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Rudy Rodriguez (“Rodriguez”) brought this
diversity action against Defendant-Appellee ConAgra Grocery
Products Co. (“ConAgra”) under the Texas Commission on Human Rights
Act (“TCHRA”) alleging disability discrimination on the basis of
his diabetes. The district court denied Rodriguez’s motion for
partial summary judgment and granted ConAgra’s. We reverse, grant
partial summary judgment to Rodriguez, and remand to the district
court for further proceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS
Plaintiff-Appellant Rudy Rodriguez was diagnosed with Type II
diabetes in 1997. The general term “diabetes” encompasses a
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category of diseases, all of which are characterized by
hypoglycemia —— heightened blood sugar levels —— resulting from the
difficulty of the body to eliminate sugar (glucose) from the blood
stream. A healthy body produces insulin at adequate levels and
uses that insulin to move sugar from the blood stream to within the
body’s cells where the sugar is used for sustenance. A Type II
diabetic like Rodriguez typically has both a reduced ability to
produce insulin and a reduced ability to use the insulin that his
body does produce. As a result, sugar builds up in the blood
stream, leading to hypoglycemia, the most significant danger Type
II diabetics face. Hypoglycemia develops gradually, though, and is
capable of detection by monitoring blood sugar levels.
Defendant-Appellee ConAgra Grocery Products Company
(“ConAgra”) owns a plant in Fort Worth, Texas, at which it produces
Ranch Style Beans. In January 2002, a temporary staffing agency
placed Rodriguez at this plant where, until March of that year, he
performed heavy manual labor, including unloading delivery trucks
and lifting heavy sacks of beans.
Based on the quality of Rodriguez’s work, a supervisor
recommended to the plant’s Human Resources Manager, Elza Zamora,
that ConAgra offer Rodriguez a permanent position. In late
February 2002, ConAgra offered Rodriguez a job as a “Production
Utility” employee in the plant’s production area. The offer was
contingent on Rodriguez’s passing a background check, a drug
screen, and a physical exam.
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The following month, with offer in hand, Rodriguez visited
Occupational Health Solutions (“OHS”), a private clinic with which
ConAgra had a standing contractual arrangement to perform all of
its preemployment physical exams. For ConAgra, OHS performs only
those specific tests and procedures that ConAgra pre-approves. At
the time of Rodriguez’s preemployment exam, the standard exam
package did not include a blood test to measure the job applicant’s
blood sugar level.
OHS’s Dr. Jerry Morris performed Rodriguez’s physical exam.
Pursuant to the OHS-ConAgra contract, Dr. Morris was to assess
Rodriguez’s medical qualification for the Production Utility
position at ConAgra. Significantly, however, ConAgra had never
provided Dr. Morris with any data or restrictions applicable to the
position, and Dr. Morris admitted that when he examined Rodriguez
he knew nothing of Rodriguez’s job offer or the qualifications
necessary for the Production Utility position.
Dr. Morris performed a urinalysis on Rodriguez, which showed
an elevated concentration of glucose in his urine. Based on
nothing more than Rodriguez’s concentrated level of glucose and the
fact that Rodriguez could not remember the name of his treating
physician or the name of the medication he was taking to control
his diabetes, Dr. Morris concluded that Rodriguez’s diabetes was
“uncontrolled.” On the medical form that Dr. Morris submitted to
ConAgra, he wrote that Rodriguez was “[n]ot medically qualified”
for the position at the plant because of “uncontrolled diabetes.”
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Dr. Morris also told Rodriguez that he did not believe Rodriguez
was controlling his diabetes.
Rodriguez immediately disputed Dr. Morris’s assessment,
informing him that Rodriguez “had [had] a complete physical not
even two months ago and [his] physical was all right and [he] was
taking pills for [his diabetes] and everything and [he] never had
no trouble.” Indeed, Rodriguez’s oral medical history and physical
exam confirmed that he suffered no physical or mental problems
attributable to his diabetes. And, Dr. Morris testified that he
observed no ill-effects attributable to Rodriguez’s diabetes.
Following the exam, Rodriguez took his completed medical form
to Zamora. She thereupon informed Rodriguez that he would not be
hired because (1) he had failed the physical exam, and (2) Dr.
Morris did not recommend him for employment.
Four days after ConAgra withdrew the job offer, Rodriguez
filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) and the Texas Commission on Human
Rights (“TCHR”). After both organizations failed to find a
violation of Rodriguez’s rights, the TCHR issued him a right-to-sue
letter. That was in June of 2002; two months later, Rodriguez sued
ConAgra in Texas state court, alleging that ConAgra violated the
TCHRA1 when it refused to hire him because of what it perceived to
be uncontrolled diabetes. ConAgra removed the case to federal
1
TEX. LAB. CODE § 21.051.
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court on the basis of diversity jurisdiction,2 but the district
court remanded it in November of 2002, after concluding that the
diversity jurisdiction statute’s amount-in-controversy requirement
was not satisfied. Rodriguez filed an amended original petition in
state court, and ConAgra again removed the suit on diversity
grounds, after which the matter proceeded in federal court.
In October 2003, ConAgra filed a motion for summary judgment,
and Rodriguez filed for partial summary judgment. In granting
ConAgra’s motion and dismissing Rodriguez’s claims with prejudice,
the district court reasoned that “Rodriguez . . . failed to present
any evidence tending to demonstrate that his employment offer was
withdrawn because of the fact that he had diabetes.”3 “Rather, the
overwhelming undisputed evidence is that Zamora withdrew the job
offer because she believed that Rodriguez’s diabetes was
uncontrolled.”4 This, according to the district court, is “a
distinction with a difference”; “numerous courts have concluded,
albeit on differing grounds, that an employer’s adverse action in
response to a plaintiff’s failure to control an otherwise
controllable illness does not give rise to a disability
discrimination claim.”5 And, in the district court’s opinion,
2
28 U.S.C. § 1332.
3
Rodriguez v. Conagra Grocery Prods. Co., No. 4:03-CV-055-Y,
at 5-6 (N.D. Tex. filed Sept. 16, 2004).
4
Id. at 6 (emphasis in original).
5
Id.
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diabetes is a “generally controllable” illness.6 Therefore, ruled
the court, Rodriguez did not have a claim under the TCHRA.7
Rodriguez timely filed a notice of appeal.8
II. ANALYSIS
A. Standard of Review
We review both grants and denials of summary judgment motions
de novo.9 “[I]f the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits,
. . . show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law,” then summary judgment in favor of that party is appropriate.10
Initially, it is the moving party’s burden to “show[ that] there is
no genuine issue of material fact”; if that burden is met, then the
nonmoving party must “produce evidence or designate specific facts
showing the existence of a genuine issue for trial.”11 In
conducting our analysis, we resolve any doubts and draw any
6
Id.
7
Id.
8
Rodriguez is supported in this case by several amici: the
EEOC; the American Association of Retired Persons; Advocacy, Inc.;
the American Diabetes Association; and the Coalition of Texans with
Disabilities.
9
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th
Cir. 2003).
10
FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
11
Gowesky, 321 F.3d at 507 (internal quotation marks omitted).
-6-
reasonable inferences raised by the evidence in favor of the
nonmoving party.12
B. The Texas Commission on Human Rights Act and the Americans
with Disabilities Act
The TCHRA, like the Americans with Disabilities Act (“ADA”),13
prohibits employment-based discrimination grounded in an
individual’s disability.14 Given the similarity between the ADA and
the TCHRA, Texas courts “look to analogous federal precedent for
guidance when interpreting the Texas Act.”15 As must federal
diversity courts when deciding an issue of state law, we will
follow the Texas courts’ lead. Our analysis today is thus focused
on those analogous federal precedents and their interpretation of
the federal act banning discrimination in employment on the basis
of disability: the ADA.
The ADA makes it unlawful for an employer to discriminate
against “a qualified individual with a disability because of the
disability of such individual in regard to job application
12
Id.
13
42 U.S.C. § 12101 et seq.
14
TEX. LAB. CODE § 21.051 (characterizing as “an unlawful
employment action” an adverse employment action taken by an
employer because of an individual’s “disability”).
15
NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.
1999); see also Herrera v. CTS Corp., 183 F. Supp. 2d 921, 925
(S.D. Tex. 2002) (“The [TCHRA] purports to correlate state law with
federal law in the area of discrimination in employment. Federal
law prohibiting disability discrimination by employers is found in
the . . . [ADA], and thus courts must look to this statute in
interpreting the TCHRA.”) (citations and quotations omitted).
-7-
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment.”16 The ADA defines a “qualified
individual with a disability” as “an individual with a disability
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual
holds or desires.”17 “The term ‘disability’ means, with respect to
an individual —— (A) a physical or mental impairment that
substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.”18 Finally, even if an
employer discriminates against a “qualified individual with a
disability,” that employer can avoid liability by asserting a
legitimate justification for its action, including that the
plaintiff, if hired, would “pose a direct threat to the health or
safety of other individuals in the workplace.”19
Taken together, these statutory and regulatory rules require
that a plaintiff situated like Mr. Rodriguez establish three
elements: (1) At the time he sought employment he had a
16
42 U.S.C. § 12112(a).
17
Id. § 12111(8).
18
Id. § 12102(2)(A)-(C) (emphasis added). The parties agree
that diabetes is a “physical . . . impairment” within the meaning
of the TCHRA/ADA.
19
Id. § 12113(b).
-8-
“disability” within the meaning of the ADA; (2) he was qualified
for the position for which he sought employment; and (3) he was not
hired because of his disability.20 ConAgra has waived any argument
that Rodriguez was not qualified for the Production Utility
position,21 and it has expressly declined to employ the “direct
threat” defense to liability. Thus, the instant dispute turns
entirely on the first and third of the Gonzales prongs: At the time
that ConAgra withdrew its offer to employ Rodriguez, did he have a
“disability” within the meaning of the ADA; and, if so, did ConAgra
withdraw the job offer because of that disability.
We conclude that the district court erred when it held that
ConAgra did not withdraw Rodriguez’s job offer because of his
diabetes. Rodriguez has adduced sufficient evidence to establish
that: (1) He was “regarded as” substantially impaired in a major
life activity by ConAgra; and (2) ConAgra withdrew its offer to
employ him because of his perceived disability. As we explain more
fully below, ConAgra’s argument that Rodriguez’s “failure to
control” his diabetes obviates the protection of the ADA is a red
herring. This case is not about “failure to control”; rather, it
20
See Gonzales v. City of New Braunfels, Tex., 176 F.3d 834,
836 (5th Cir. 1999); Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047,
1050 (5th Cir. 1998).
21
ConAgra waived this argument by failing to brief it. See
Commc’n Workers of Am. v. Ector County Hosp. Dist., 392 F.3d 733,
748 (5th Cir. 2004); see also FED. R. APP. P. 28(a)(9)(A) (stating
that appellant’s brief must contain “appellant’s contentions and
the reasons for them, with citations to the authorities and parts
of the record on which the appellant relies”).
-9-
is a garden variety “regarded as disabled” case. In such cases,
the question of control is never relevant: Any rule requiring that
a plaintiff exercise some level of control over his impairment ——
assuming arguendo that such a rule even exists —— is relevant and
applies only in an actual disability case. At its core, this case
is about the TCHRA/ADA’s emphasis on treating impaired job
applicants as individuals. ConAgra’s blanket policy of refusing to
hire what it characterizes as “uncontrolled” diabetics violates
this fundamental tenet of ADA law; it embraces what the ADA
detests: reliance on “stereotypes and generalizations”22 about an
illness when making employment decisions.
1. ConAgra Regarded Rodriguez as “Disabled” Within the
Meaning of the TCHRA/ADA
a. Background Law
This case falls squarely under the “regarded as” prong of the
ADA’s disjunctive definition of disability. Rodriguez’s theory of
recovery is that at the time ConAgra withdrew his job offer, it
regarded him as having a physical impairment that substantially
limited him in the major life activity of working, not that he in
fact had such an impairment.
Under the ADA, a plaintiff is “regarded as” disabled if he:
22
EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d 1089, 1097 (6th
Cir. 1998).
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(1) has an impairment which is not substantially limiting
but which the employer perceives as . . . substantially
limiting . . . ; (2) has an impairment which is
substantially limiting only because of the attitudes of
others towards such an impairment; or (3) has no
impairment at all but is regarded by the employer as
having a substantially limiting impairment.23
Rodriguez asserts that his case falls within the first of Bridges’s
three categories. Accordingly, Rodriguez had to show that at the
time ConAgra withdrew his job offer (1) his diabetes did not
actually substantially limit him in a major life activity, and (2)
ConAgra nonetheless perceived his diabetes to be substantially
limiting. As Rodriguez grounds his “regarded as” claim on the
major life activity of working,24 he had to demonstrate that ConAgra
believed that he was “unable to work in a broad class of jobs.”25
To that end, Rodriguez needed to prove that ConAgra perceived him
to be “precluded from more than one type of job, a specialized job,
23
Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir.
1996).
24
In this circuit, “[t]he ability to engage in gainful
employment” qualifies as a major life activity. Gowesky, 321 F.3d
at 508; see also 29 C.F.R. § 1630.2(j)(3) (delineating the contours
of the major life activity of working).
25
Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999)
(emphasis added); see also 29 C.F.R. § 1630.2(j)(3)(i) (Defining
“substantially limit[ed] in the major life activity of working as
“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.”).
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or a particular job of choice.”26 Rodriguez unmistakably carries
this burden.
b. Rodriguez’s Evidence
(i) Rodriguez Proved that His Diabetes Was Not
Substantially Limiting
Rodriguez adduced sufficient evidence to establish that his
diabetes did not substantially limit him in a major life activity.
For example, Rodriguez stated in his affidavit: “At no time in my
life have I experienced any physical or mental problem, other than
a temporary illness or injury, that has affected my ability to
work.” His personal physician, Ramon D. Garcia, averred that
“[f]or as long as I have been treating Rudy Rodriguez, dating back
to approximately 1999, he has not suffered any complications as a
result of his diabetes.” As ConAgra made no attempt to challenge
this evidence, we conclude that Rodriguez’s diabetes did not
substantially limit him in a major life activity.
The only evidence in the record that could be used to find
that Rodriguez’s diabetes was in fact substantially limiting is the
hyperbole of Dr. Morris that “outside of a padded room where he
could even then fall and break his neck from dizziness or
fainting,” there is no working environment in which Rodriguez would
26
Sutton, 527 U.S. at 492.
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be safe.27 But as we explain below,28 Dr. Morris did not base his
assessment on the individualized review of Rodriguez that the ADA
requires.29 An assessment not reached in an individualized manner
is not an assessment that we can credit, at least with regards to
whether Rodriguez is actually substantially limited by his
diabetes.30
(ii) Rodriguez Proved that ConAgra Regarded Him as
Precluded From a Wide Range of Jobs
To determine whether ConAgra regarded Rodriguez’s diabetes as
a substantially limiting impairment, we focus on the statements of
ConAgra itself, primarily those of its decisionmaker, Ms. Zamora,
and of Dr. Morris, on whom Zamora relied in making her decision.31
27
ConAgra, though, does not try to use Dr. Morris’s statement
in this fashion.
28
See infra Part II.B.3.b.
29
See, e.g., Sutton, 527 U.S. at 482-84.
30
It is, though, an assessment that we can credit with regards
to whether ConAgra regarded Rodriguez as substantially limited in
the major life activity of working. See infra note 31 and
accompanying text.
31
See Deas v. River West, L.P., 152 F.3d 471, 476 n.9 (5th
Cir. 1998) (citing Runnebaum v. NationsBank of Md., 123 F.3d 156,
172 (4th Cir. 1997)).
ConAgra argues that Rodriguez may not rely on the testimony of
Dr. Morris to establish that ConAgra regarded Rodriguez as
substantially limited in a major life activity. This argument is
meritless. “Employers do not escape their legal obligations under
the ADA by contracting out certain hiring and personnel functions
to third parties.” Holiday v. City of Chattanooga, 206 F.3d 637,
645 (6th Cir. 2000); see also id. (noting that the “ADA expressly
prohibits employers from ‘participating in a contractual or other
arrangement that has the effect of subjecting a covered entity’s
qualified applicant or employee to . . . discrimination’”) (quoting
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First, Rodriguez presented ConAgra’s response to his
interrogatories, in which ConAgra admitted its position that
Rodriguez was not qualified for any other position at its plant:
Interrogatory No. 7: Was Plaintiff qualified for any
other positions at ConAgra Foods? Please include in your
answer any positions for which he would have been
qualified with a reasonable accommodation on your part.
Answer: No.
Alone, this statement is sufficient to support a reasonable fact-
finder’s conclusion that ConAgra considered Rodriguez unable to
perform a broad class of jobs.32 When this statement is coupled
with the fact that ConAgra withdrew Rodriguez’s job offer for the
express reason that it viewed him as unfit for the entry-level
Production Utility position —— which is a job that, because it
42 U.S.C. § 12112(b)(2)); Gillen v. Fallon Ambulance Serv., Inc.,
283 F.3d 11, 31 (1st Cir. 2002) (relying on Holiday); EEOC v. Texas
Bus Lines, 923 F. Supp. 965, 973-74 (S.D. Tex. 1996); 42 U.S.C. §
12112(b)(2) (defining “discriminate” to include “participating in
a contractual or other arrangement or relationship that has the
effect of subjecting a covered entity’s qualified applicant or
employee with a disability to” discrimination); cf. 42 U.S.C. §
12112(d)(1) (extending the ADA’s prohibition of discrimination to
“medical examinations and inquiries”).
32
In its brief to this court, ConAgra now tries to explain
away this answer, contending that it viewed Rodriguez as not
“‘qualified’ for any other positions at the plant” because of a
collective bargaining agreement that precluded ConAgra from
considering outside hires for fourteen of the plant’s sixteen
positions. We are not convinced.
“[Q]ualified” is a term of art in the ADA context; an
individual is “qualified” if “with or without reasonable
accommodation, [she] can perform the essential functions of the
employment position that such individual . . . desires.” 42 U.S.C.
§ 12111(8) (emphasis added). And without caveat, ConAgra flatly
stated that Rodriguez is not “qualified” for any other position at
its plant. Its post-hoc explanation just does not hold water.
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requires only the most basic skills and abilities, virtually any
able-bodied person could perform —— it follows inescapably that
ConAgra viewed Rodriguez as unfit to perform a wide range of jobs.
This same analysis applies to Zamora. In her deposition,
Zamora stated that, based on Dr. Morris’s assessment, she viewed
Rodriguez’s diabetes as uncontrolled. She confirmed that, in her
mind, an uncontrolled diabetic is one who is not taking his
medication. This, according to Zamora, could lead to dizziness and
blacking out, thereby preventing Rodriguez from performing the
essential duties of his job. Like ConAgra itself, if Zamora
regarded Rodriguez as unable to perform the Production Utility
position because of his diabetes, then there are essentially no
manual labor jobs for which she regarded him as being able to
perform.
Finally, Dr. Morris testified that the results of Rodriguez’s
urinalysis made him unfit to perform any manual labor job. In Dr.
Morris’s own words, “[O]utside of a padded room where he could even
then fall and break his neck from dizziness or fainting, I don’t
know that there would be a safe environment that we could
construct.”
This summary judgment evidence shows beyond cavil, as a matter
of law, that ConAgra regarded Rodriguez’s diabetes as substantially
limiting his ability to engage in the major life activity of
working. Undeterred, though, ConAgra continues to disagree.
c. ConAgra’s Position
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In response to Rodriguez’s compelling evidence, ConAgra wields
a broad ax in lieu of a scalpel, arguing expansively that the ADA’s
protection simply does not extend to Rodriguez. Its flawed
syllogism goes: (1) Rodriguez has failed to control his diabetes;
(2) because diabetes is a “generally controllable” illness,33
ConAgra regarded Rodriguez not as suffering generally from the
impairment of diabetes, but rather as suffering from the impairment
of the more specific uncontrolled diabetes; ergo (3) uncontrolled
diabetes —— or, as ConAgra puts it, a plaintiff’s “failure to
control [his] controllable” impairment —— is not an impairment that
is protected by the ADA. This overbroad generalization widely
misses the mark.
In firing its broadside argument, ConAgra cites to no less
than seventeen decisions purporting to support its proffered
“failure to control” rule. This extensive citation list, however,
suffers from a fatal flaw: Each decision in the list is completely
inapposite to this case. In fact —— even if we were to assume
arguendo that ConAgra’s “failure to control” rule were a valid
interpretation of the ADA34 —— the rule itself would remain totally
33
Rodriguez, No. 4:03-CF-055-Y, at 7.
34
Notably, ConAgra makes no attempt whatsoever to justify the
“failure to control” rule or to explain why it is a legitimate
reading of the ADA. It need not have looked far, though, to round
up the competing arguments —— the rule’s validity, which we need
not address today, is a thorny and contentious issue. Compare Jill
Elaine Hasday, Mitigation and the Americans with Disabilities Act,
103 MICH. L. REV. 217, 225-26 (2004) (arguing in favor of imposing
a duty on impaired individuals to mitigate the effects of their
impairment) with Sarah Shaw, Comment, Why Courts Cannot Deny ADA
-16-
inapposite to this case.
Fifteen of the seventeen cases to which ConAgra cites are not
“regarded as” disability cases at all: Fourteen of them involved an
actual disability35 and one involved the plaintiff’s record of an
actual disability.36 In other words, the plaintiffs in these cases
Protection to Plaintiffs Who Do Not Use Available Mitigating
Measures for Their Impairments, 90 CAL. L. REV. 1981, 1984-85 (2002)
(arguing the opposite).
35
See Hein v. All Am. Plywood Co., 232 F.3d 482, 487 (6th Cir.
2000); Burroughs v. City of Springfield, 163 F.3d 505, 506 (8th
Cir. 1998); Van Stan v. Fancy Colours & Co., 125 F.3d 563, 566 (7th
Cir. 1997); Siefken v. Village of Arlington Heights, 65 F.3d 664,
665 (7th Cir. 1995); White v. Coyne Int’l Enterprises Corp., No.
3:02-CV-7505, 2003 WL 22060545, at *2 (N.D. Ohio July 23, 2003);
Johnson v. Maynard, No. 01-CIV.7393, 2003 WL 548754, at *4
(S.D.N.Y. Feb. 25, 2003); Rose v. Home Depot U.S.A., Inc., 186 F.
Supp. 2d 595, 596 (D. Md. 2002); Hewitt v. Alcan Aluminum Corp.,
185 F. Supp. 2d 183, 186 (N.D.N.Y. 2001); Brookins v. Indianapolis
Power & Light Co., 90 F. Supp. 2d 993, 995 (S.D. Ind. 2000);
Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587, 589 (D. Md.
2000); Bowers v. Multimedia Cablevision, Inc., No. 96-1298-JTM,
1998 WL 856074, at *4 (D. Kan. Nov. 3, 1998); Pangalos v.
Prudential Life Ins. Co. of Am., No. 96-0167, 1996 WL 612469, at *1
(E.D. Pa. Oct. 15, 1996); Roberts v. County of Fairfax, Va., 937 F.
Supp. 541, 547-48 (E.D. Va. 1996); Franklin v. U.S. Postal. Serv.,
687 F. Supp. 1214, 1216 (S.D. Ohio 1988).
36
See Winters v. Pasadena Indep. Sch. Dist., 124 Fed. Appx.
822, 823 (5th Cir. 2005).
The other two cases on which ConAgra relies, Bayless v. Orkin
Exterminating Co., No. 02-50560 (5th Cir. May 5, 2003) (per
curiam), and Burrell v. Cummins Great Plains, Inc., 324 F. Supp. 2d
1000 (S.D. Iowa 2004), are equally irrelevant. Both cases did
involve “regarded as” disability claims. But contrary to ConAgra’s
description of Bayless, we did not reject the plaintiff’s claim
“because his diabetes was not well controlled.” Rather, we
rejected the plaintiff’s claim because his employer did not regard
his impairment as a “‘permanent or long-term’” limitation on a
major life activity. No. 02-50560, slip op. at 7-8 (quoting Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002)). And
in Burrell, the district court grounded its finding that the
plaintiff’s employer did not regard him as substantially limited in
the major life activity of working on the fact that “in light of
-17-
contended that they suffered (or had a record of suffering) from an
impairment that actually substantially limited their ability to
engage in a major life activity. This distinction is important
because in an “actual disability” case there is something for the
plaintiff to control, namely the substantially limiting impairment
from which the plaintiff claims to suffer. In stark and telling
contrast, “regarded as” disability claims, like Rodriguez’s, are
grounded in the foundational distinction that the plaintiff’s
impairment is not substantially limiting. Stated differently, in
this and all other cases involving only a “regarded as” disability
claim, there is nothing for the plaintiff to control or mitigate.
Thus, applying the supposed “failure to control” rule in a
“regarded as” case just makes no sense.37
In a world governed by such reasoning, an impaired but not
substantially limited plaintiff who asserts only a “regarded as”
ADA claim could never succeed: No one can “control” a nonlimiting
[plaintiff’s] skills and the array of jobs available to [him]
utilizing those skills, [he] has failed to show that he is regarded
as unable to perform a class of jobs.” 324 F. Supp. 2d at 1017
(emphasis added). The Burrell court’s only discussion of the
plaintiff’s failure to control his medical condition was in the
context of how that failure to control made the plaintiff a safety
risk to the employer. Id. at 1018. How this helps ConAgra’s case
is unclear, as ConAgra has specifically disavowed any reliance on
the possible safety risks posed by Rodriguez as a basis for its
decision to withdraw his job offer.
37
Cf. Debra Burke & Malcolm Abel, Ameliorating Medication and
ADA Protection: Use It and Lose It or Refuse It and Lose It?, 38
AM. BUS. L.J. 785, 800 (2001) (noting that a rule establishing a
duty to mitigate the effects of a substantially limiting impairment
would “appl[y] only to the case of an actual disability”).
-18-
impairment that by definition is merely “regarded as” substantially
limiting. Such an imagined condition cannot —— and thus need not
—— be controlled. An effort like ConAgra’s to apply the “failure
to control” rule to a “regarded as” claim is a logical
impossibility that flies in the face of Congress’s and the Texas
legislature’s explicit determinations that the ADA and the TCHRA
should protect an individual who is not limited by his impairment
but who is nonetheless “regarded as” substantially limited.38 We
reject ConAgra’s attempt to insert interstitially its “failure to
control” rule into this case. Thus, we need not address the
substantive question whether the rule itself is a valid
interpretation of the TCHRA/ADA, leaving that determination for
another day. Rodriguez is entitled to summary judgment that
ConAgra regarded him as substantially limited in the major life
activity of working by his diabetes.
2. ConAgra Concedes that It Withdrew Rodriguez’s Job Offer
Because of His Diabetes
ConAgra has made resolution of this prong of the TCHRA/ADA
analysis easy: In its appellate brief, ConAgra twice concedes
(albeit coupled with an irrelevant caveat) that it withdrew
Rodriguez’s job offer because it regarded him as substantially
limited by his diabetes in the major life activity of working. In
that caveat, ConAgra continues to contend that the allegedly
“uncontrolled” nature of Rodriguez’s diabetes saves it from
38
See 42 U.S.C. § 12102(2)(C); TEX. LAB. CODE § 21.051.
-19-
liability. At its core, ConAgra’s argument is that Rodriguez’s
alleged “failure to control” his diabetes constitutes a legitimate,
nondiscriminatory justification (à la McDonnell Douglas Corp. v.
Green39) for its withdrawal of Rodriguez’s job offer. This argument
depends for its very viability on ConAgra’s underlying assumption
that its “failure to control” rule is both valid and applicable in
this “regarded as” action: Rodriguez’s alleged “failure to control”
his diabetes would qualify as a “legitimate”40 justification for
ConAgra’s withdrawal of the job offer only if a “failure to
control” one’s substantially limiting impairment did in fact
obviate the protection of the ADA. This contention, however, is
yet another red herring: As we have already emphasized, this is a
“regarded as” case, so the purported “failure to control” rule,
even if valid, simply does not apply here and thus need not be
addressed today. ConAgra’s admission that it withdrew Rodriguez’s
job offer because of its perception that he suffers from
uncontrolled diabetes, is the functional equivalent of an admission
that it withdrew the offer because it regarded him as substantially
limited by his diabetes.
Related to the “because of” prong of the TCHRA/ADA analysis is
the question of discriminatory intent. On this point, ConAgra
argues that neither Rodriguez nor we have any reason to believe
that it harbors ill-will towards diabetics as a class. We agree,
39
411 U.S. 792, 802 (1973).
40
Id.
-20-
especially considering the evidence establishing that ConAgra
employs a number of diabetics —— albeit those whom it characterizes
as “controlled” —— at its Ranch Style Beans plant. But both that
evidence and ConAgra’s assertion are beside the point. This case
is one of those rare ADA cases in which we are presented with
direct (rather than circumstantial) evidence of discriminatory
intent: ConAgra and Ms. Zamora have both admitted that Rodriguez
did not get his job because of his allegedly uncontrolled diabetes.
Discrimination —— even if not motivated by animus towards the
discriminated-against individual —— can still be invidious. And
that is the case here: Without giving Rodriguez the chance to be
evaluated based on his own individualized experience with diabetes,
ConAgra lumped him into a class with all putative “uncontrolled”
diabetics and summarily denied him the Production Utility job. The
ADA does not draw lines between this type of discrimination and
that motivated by open-hostility. All disability discrimination in
employment is unlawful.41 Rodriguez is entitled to partial summary
judgment of liability on his disability discrimination claim.42
41
Cf. Vaughn v. Edel, 918 F.2d 517, 522-23 (5th Cir. 1990)
(reversing the district court’s denial of a Title VII race
discrimination claim; reasoning that Title VII prohibits even
disparate treatment grounded in race but motivated by “self-
interest rather than racial hostility”).
42
ConAgra puts forth two additional arguments that, because
the “failure to control” rule is inapplicable to this case, are
also easily dismissed. First, ConAgra argues that the TCHRA/ADA
does not protect a plaintiff whose employer mistakenly regards a
plaintiff’s controllable impairment as uncontrolled. Second,
ConAgra argues that Rodriguez presented no evidence to the district
court that his diabetes was in fact under control. Obviously, both
-21-
3. The Allegedly Uncontrolled State of Rodriguez’s Diabetes
Does not Provide a Legitimate Justification for ConAgra’s
Withdrawal of the Job Offer
Even if ConAgra’s “failure to control” rule were a valid
interpretation of the ADA, for another independent reason ConAgra’s
assertion of the rule in this case as a justification for
withdrawing Rodriguez’s job offer fails McDonnell Douglas’s
requirement of legitimacy. In assessing Rodriguez’s fitness for
the Production Utility position, ConAgra failed to follow the ADA’s
mandate that it measure the impact of Rodriguez’s diabetes on his
ability to work in an individualized manner.43 Without such an
individualized assessment, ConAgra had no way of knowing whether
Rodriguez’s presumed failure to control his diabetes would actually
prevent him from performing the requirements of the position. Such
knowledge, however, is a key component of each of the cases
involving an actual (or a record of an actual) disability that
ConAgra cites in support of its “failure to control” rule. Every
one of those courts was presented with particularized evidence of
how the impaired employee’s failure to control his impairment
arguments assume that the “failure to control” rule applies here.
As we have shown, it does not, making both arguments meritless.
43
Indeed, had there been an individualized review of
Rodriguez’s abilities, we likely would not even be here today.
This is a “regarded as” case of disability discrimination; as such
it is premised on ConAgra’s mistaken perception of Rodriguez as
substantially limited by his diabetes. Had ConAgra performed the
individualized review the ADA requires, it likely would have
discovered that Rodriguez is not actually substantially limited by
his diabetes.
-22-
rendered him unable to perform his job adequately.44 Here, there
was no such particularized evidence, and there could not have been
any without the individualized review required by the ADA. In
fact, all of the particularized evidence available to ConAgra about
Rodriguez’s ability to perform his job established exactly the
opposite: He received the full-time employment offer precisely
because he was already performing up to ConAgra’s expectations.
Without any actual evidence of Rodriguez’s unsuitability for the
Production Utility position, ConAgra had to rely on precisely the
type of “‘stereotypes and generalizations’” about diabetes and
diabetics that the ADA abhors.45 Such reliance is impermissible;
it renders ConAgra’s purportedly legitimate justification for its
withdrawal of Rodriguez’s job offer discriminatory.
44
See, e.g., Siefken, 65 F.3d at 667 (holding that “when an
employee knows that he is afflicted with a disability, needs no
reasonable accommodation from his employer, and fails to meet the
employer’s legitimate job expectations, due to his failure to
control a controllable disability, he cannot state a cause of
action under the ADA.”) (emphasis added).
45
Gillen, 283 F.3d at 29 (quoting Prevo’s Family Mkt., Inc.,
135 F.3d at 1097).
-23-
a. The TCHRA/ADA’s Requirement of Individualized
Assessment
In its Sutton,46 Toyota Motor Manufacturing,47 and Murphy v.
UPS, Inc.48 decisions, the Supreme Court repeatedly emphasized “the
individualized approach of the ADA.”49 The ADA is, after all, an
anti-discrimination law; as such, it is meant to discourage —— not
to promote —— the use of class-based grounds in employment-related
decisionmaking. Under this individualized approach, the question
whether an applicant is disabled must be answered “in . . . a case-
by-case manner.”50 Employers cannot rely on “perceptions of [a]
disability based on ‘myth, fear or stereotype’”51; rather, they must
evaluate an applicant in her actual state. In other words,
employers must focus on whether the particular applicant before it
is actually substantially limited by his impairment and on whether
the applicant is actually capable of performing the essential
functions of the job at issue.52 This emphatic focus on the
46
527 U.S. at 482-84.
47
534 U.S. at 198-99.
48
527 U.S. 516, 521 (1999).
49
Sutton, 527 U.S. at 484; see also Kapche v. City of San
Antonio, 304 F.3d 493, 499 (5th Cir. 2002) (“These intervening
Supreme Court cases consistently point to an individualized
assessment mandated by the ADA under various sections of the
Act.”).
50
Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198.
51
29 C.F.R. § 1630.2(l) App.
52
See Sutton, 527 U.S. at 482-84; cf. Nawrot v. CPC Int’l, 277
F.3d 896, 904 (7th Cir. 2002) (noting that in analyzing whether a
-24-
individual applicant’s actual abilities “effectuate[s] one of the
primary goals of the ADA: ‘to prohibit employers from making
adverse employment decisions based on stereotypes and
generalizations associated with the individual’s disability rather
than on the individual’s actual characteristics.’”53 Further, the
importance of proceeding in a case-by-case manner is even more
pronounced when an impairment such as diabetes is at issue: “An
individualized assessment of the effect of an impairment is
particularly necessary when the impairment is one whose symptoms
vary widely from person to person.”54
b. ConAgra Did Not Assess the Effect of Rodriguez’s
Diabetes in an Individualized Manner
The record in this case unequivocally establishes that ConAgra
did not base its decision to withdraw Rodriguez’s job offer on the
plaintiff is disabled, courts should not “meander in ‘would, could,
or should-have’ land”; rather, courts should “consider only the
[mitigating] measures actually taken and consequences that actually
follow”).
53
Gillen, 283 F.3d at 29 (quoting Prevo’s Family Mkt., Inc.,
135 F.3d at 1097); see also Sutton, 527 U.S. at 483 (rejecting an
approach to the disability determination that would “force
[employers to rely on] general information about . . . an
impairment . . . , rather than on the individual’s actual
condition”). Such generalizations about diabetes clearly
influenced the district court’s resolution of this case, as shown
by its characterization of diabetes as “generally controllable.”
See Rodriguez, No. 4:03-CV-055-Y, at 7. Under an individualized
approach to the ADA, whether or not diabetes is “generally
controllable” simply is not relevant. What is relevant is the
specific and individualized effect of the diabetes on the plaintiff
at issue.
54
Toyota Motor Mfg., Ky., Inc., 534 U.S. at 199 (emphasis
added).
-25-
kind of individualized and fact-intensive assessment envisioned by
the ADA. To start with, Rodriguez’s offer was withdrawn on the
basis of ConAgra’s blanket determination that it would not hire any
diabetic who its physicians characterize as “uncontrolled,”
regardless whether the particular diabetic might be able to perform
the essential functions of the job at issue. Such a policy not
only ignores the ADA’s mandate that employers consider an impaired
applicant on the basis of his actual abilities, but it also
empowers ConAgra to make an end-run around the ADA’s prohibition of
discrimination.55
Any possible doubt as to whether ConAgra proceeded in an
individualized manner is dispelled by Ms. Zamora’s deposition
testimony showing that her view of Rodriguez’s diabetes (and of
diabetes in general) was colored by “stereotypes and
55
A hypothetical case will illustrate the potential for
ConAgra’s end-run: Consider employee “A” who suffers from a walking
impairment and who, as a result, walks with a limp. Even with his
limp, A is able to perform his job up to his employer’s
expectations. A’s limp could be corrected through the use of a
cane, but for personal, legitimate reasons, A has chosen not to use
a cane. Unfortunately, A’s limping makes his employer, “Z” —— who
harbors a prejudice against limpers —— uncomfortable. Z sends A to
the company doctor, who conveniently concludes that A has failed to
control his otherwise controllable impairment by refusing to use a
cane. Under the theory advanced by ConAgra in this case, Z would
then be free, notwithstanding the ADA, and notwithstanding A’s
adequate job performance, to terminate A’s employment simply
because of Z’s discomfort with A’s limp. Z would just need to
follow ConAgra’s argument here: “Yes, A is disabled. Yes, he is
otherwise qualified for his job. And yes, he is performing his job
up to our legitimate expectations. But no, we did not fire him
because of his impairment; we fired him because of his failure to
control his impairment. And A’s failure to control his
controllable impairment is not protected by the ADA.”
-26-
generalizations” about the illness.56 At one point, Rodriguez’s
counsel asked Zamora:
Q: Do you know whether all diabetics take medication?
A: I believe they do, yes.
Q: And do you believe that if someone is diabetic and not
taking medication that they have uncontrolled diabetes?
A: Yes. I understand that to be true.
. . .
Q: So is there a way for a diabetic to control diabetes
without medication?
. . .
A: I would think not.
Dr. Morris himself, though, flatly answered “No” when asked in his
deposition whether “all diabetics need to take medication.”
According to Dr. Morris, some diabetics are able to manage their
illness through “diet and exercise.”
This exchange demonstrates that Zamora (the decisionmaker in
this case) harbored fundamental misunderstandings —— and employed
prejudices —— about diabetes. Yet despite her misunderstandings,
Zamora never asked Dr. Morris what he meant to convey by describing
Rodriguez’s diabetes as “uncontrolled.” Rather, Zamora relied
unscientifically on her personal concepts about the illness gleaned
from working with diabetics and from having two diabetic parents.
On this flimsy foundation —— and without giving any consideration
to the actual, individualized impact of Rodriguez’s diabetes on his
life —— Zamora concluded that she “know[s] that if [a diabetic]
do[esn’t] have [his] medication to control diabetes, it certainly
presents a risk factor.” When asked what kinds of risks, Zamora
56
Prevo’s Family Mkt., Inc., 135 F.3d at 1097.
-27-
said, “I know that, again, talking to our employees that are
diabetic . . . , that if they’re not taking their medication on
time and if they are not eating the proper foods at specific times,
it could cause them to become dizzy and possibly blackout.”
Perhaps most telling is this next statement by Zamora, as it proves
how deeply her misunderstanding of diabetes affects her hiring
decisions:
Q: Would you hire a diabetic who does not take medication
to work at ConAgra?
A: I would have to say if it’s uncontrolled, if the
diabetes is uncontrolled, I wouldn’t hire —— he would not
be hired.
To summarize, despite the fact that ConAgra’s own doctor
stated that a diabetic can control his illness without medication,
Zamora elected to rely on her own beliefs regarding the general
nature of the illness to conclude that any unmedicated diabetic
presents too significant a risk to hire. Her belief, though,
amounts to nothing more than speculation about the danger actually
posed by Rodriguez. Indeed, Zamora admitted as much:
Q: Let me put it this way. Do you know if someone
analyzed, based on [Rodriguez’s] own physical
limitations, whether he was, likely, to cause injury to
himself or others?
A: I don’t know.
Post-Sutton, speculation about the hypothetical risks posed by
a diabetic is not a legitimate ground on which to make an
employment decision. The Sutton Court, after all, specifically
rejected an approach that “would, in many cases, force [the
decisionmaker] to make a disability determination based on general
-28-
information about how an uncorrected impairment usually affects
individuals, rather than on the individual’s actual condition.57
That, however, is precisely what happened in this case. Zamora
decided not to hire Rodriguez based on her general beliefs (and
misconceptions) about the risks Rodriguez posed as an allegedly
uncontrolled diabetic.
Finally, ConAgra cannot escape its obligation to evaluate
Rodriguez’s actual abilities, notwithstanding his diabetes, by
blindly relying on the assessment of Dr. Morris. Dr. Morris
testified that he had no knowledge of the position for which
ConAgra was considering Rodriguez. Indeed, he had not even been
informed by ConAgra of any of the essential functions for which
Rodriguez would be responsible if hired. This, in itself, belies
the notion that Dr. Morris subjected Rodriguez to the
individualized assessment mandated by the ADA. As the First
Circuit has noted, “a medical opinion is often cogent evidence of
nondiscriminatory intent —— in some instances, it may even be
57
Sutton, 527 U.S. at 483 (emphasis added). The EEOC has
elaborated on this point:
The results of a medical inquiry or examination may not
be used to disqualify persons who are currently able to
perform the essential functions of a job, either with or
without an accommodation, because of fear or speculation
that a disability may indicate a greater risk of future
injury, or absenteeism, or may cause future workers’
compensation or insurance costs.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, TECHNICAL ASSISTANCE MANUAL ON THE
EMPLOYMENT PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES ACT § 6.4
(1992) (emphasis added).
-29-
enough to justify summary judgment —— but the mere obtaining of
such an opinion does not automatically absolve the employer from
liability under the ADA.”58 The employer has an obligation to
ensure that its applicants are treated as individuals; “[t]hus, an
employer cannot slavishly defer to a physician’s opinion without
first pausing to assess the objective reasonableness of the
physician’s conclusions.”59
CONCLUSION
For the foregoing reasons, we reverse the district court’s
grant of ConAgra’s motion for summary judgment and that court’s
denial of Rodriguez’s motion. Further, we grant Rodriguez’s motion
for partial summary judgment, holding as a matter of law that
ConAgra discriminated against Rodriguez under the TCHRA; and we
remand this case to the district court for a determination of the
quantum of Rodriguez’s damages.
REVERSED in part; RENDERED in part; and REMANDED.
58
Gillen, 283 F.3d at 31 (citations omitted).
59
Id.; see also Holiday, 206 F.3d at 645 (reversing summary
judgment in favor of employer because “[c]ourts need not defer to
an individual’s doctor’s opinion that is neither based on an
individualized inquiry mandated by the ADA nor supported by
objective scientific and medical evidence”).
-30-