Terry Tyler v. La-Z-Boy Corporation

Case: 12-60327 Document: 00512101942 Page: 1 Date Filed: 01/04/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 4, 2013

No. 12-60327 Lyle W. Cayce

Summary Calendar Clerk

TERRY E. TYLER,

Plaintiff-Appellant,

v.

LA-Z-BOY CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

Case No. 3:09-CV-688

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Defendant-Appellee La-Z-Boy Corp. laid off Plaintiff-Appellant Terry Tyler

as part of a reduction in force. Tyler alleged that La-Z-Boy discriminated

against him on the basis of age and disability. The district court granted

summary judgment for La-Z-Boy. We AFFIRM.

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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1. Facts and Proceedings

Terry Tyler injured his shoulder working as an upholsterer at Defendant-

Appellee La-Z-Boy Corp.’s (“La-Z-Boy”) Newton, Mississippi furniture

manufacturing plant in March 2005. Tyler had shoulder surgery, and was off

work for nineteen months.

Tyler returned to work in October 2006 with lifting restrictions—no more

than twenty pounds occasionally and ten pounds frequently—that prevented him

from assuming his old job. Instead, La-Z-Boy assigned him to an upholstery

training position during the plant’s second shift. Tyler took time off to have

additional shoulder surgery in June 2007, but returned to the upholstery

training job in March 2008. His lifting restrictions—no more than twenty-four

pounds from floor to waist or twenty pounds from waist to overhead—remained

largely the same.

As Tyler grappled with his shoulder injury, La-Z-Boy grappled with

difficulties of its own. The company began laying off employees in January 2007,

citing a drop in sales caused by a switch to a new manufacturing system, along

with the economic downturn. The workforce at La-Z-Boy’s Newton plant

plummeted from more than 1,100 employees in 2007 to fewer than 700 by the

end of 2008. The upholstery department accounted for almost half of the jobs

lost.

As part of the layoffs, La-Z-Boy eliminated the upholstery department’s

second and third shifts. Eleven of the plant’s fifteen upholstery trainers retained

positions with the company: the three on the first shift with the most seniority

stayed on as trainers; three quit or were let go for performance-related reasons;

and eight were assigned to “floater” upholstery positions.1 La-Z-Boy determined

that “[a]ll of the floater jobs required lifting more weight than was permitted by

1

A “floater” is a person with skills sufficient to “be a body and a seat upholsterer” or

“a framer and an assembler:”

2

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Tyler’s lifting restrictions.” With “no production jobs available that could

accommodate his lifting restrictions,” La-Z-Boy laid off Tyler on October 16,

2008. A La-Z-Boy human resources manager told Tyler that the company was

laying him off because of his “limitations due to [his] injury” and because “there

was no other position for [him].”2 At the time, Tyler was forty-six years-old, and

had worked at the Newton plant since 1997.

Tyler filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (“EEOC”) in November 2008, alleging that La-Z-Boy

discriminated against him on the basis of age and disability. The EEOC issued

a “Right to Sue” letter, and Tyler filed suit in district court on the same grounds.

The district court granted summary judgment for Tyler on both claims.

The district court found that Tyler’s shoulder injury did not qualify him as

disabled under the Americans with Disabilities Act (“ADA”); that Tyler’s lifting

restrictions were insufficient to show that he was “substantially limited” from

working or performing any other major life activity; and that La-Z-Boy did not

regard Tyler as disabled. The district court also found that Tyler could not rebut

La-Z-Boy’s legitimate, nondiscriminatory reasons for laying him off—namely the

reduction in force and his lack of seniority—and that Tyler did not produce

evidence that La-Z-Boy terminated him because of his age under the Age

Discrimination in Employment Act (“ADEA”). Tyler appeals the district court’s

ruling as to both his age and disability.3

2

La-Z-Boy has not hired new trainers since eliminating Tyler’s position.

3

Tyler also alleges that the district court erred in granting summary judgment because

of La-Z-Boy’s discovery abuses. However, as La-Z-Boy observes, Tyler does not identify a

specific discovery ruling by the district court that resulted in reversible error. As this court

observed in Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987), appealing a district court’s discovery rulings “without even the slightest identification

of any error in [the district court’s] legal analysis or its application to [the case], is the same

as if [a party] had not appealed that judgment.” Even if we did find that Tyler identified a

specific discovery ruling to challenge, his discovery challenge is not persuasive because a

“[p]arty may not simply rely on vague assertions that additional discovery will produce

3

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2. Standard of Review

We review a district court’s grant of summary judgment de novo, applying

the same standards as the district court. Condrey v. Sun Trust Bank of Ga., 429

F.3d 556, 562 (5th Cir. 2005).

3. Tyler’s Disability Discrimination Claim

“The ADA, 42 U.S.C. §§ 12102 et seq., prohibits discrimination in

employment against a qualified individual on the basis of his disability.”4 Griffin

v. United Parcel Serv., Inc., 661 F.3d 216, 221-22 (5th Cir. 2011). “To prevail on

an ADA claim, a plaintiff must prove that 1) he has a ‘disability’; 2) he is

‘qualified’ for the job; and 3) an adverse employment decision was made solely

because of his disability.” Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092

(5th Cir. 1997). “‘As a threshold requirement in an ADA claim, the plaintiff

must, of course, establish that he has a disability.’” Waldrip v. Gen. Elec. Co.,

325 F.3d 652, 654 (5th Cir. 2003) (quoting Rogers v. Int’l Marine Terminals, Inc.,

87 F.3d 755, 758 (5th Cir. 1996)). Under the ADA, a “disability” includes “a

physical or mental impairment that substantially limits one or more of the major

life activities of such individual,” “a record of such an impairment,” or “being

regarded as having such an impairment.” 42 U.S.C. § 12102(2); see also Bridges

v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996). A party is “regarded as

having such an impairment” if the party can show that the party’s employer

“‘entertain[ed] misperceptions about the individual-it must believe either that

one has a substantially limiting impairment that one does not have or that one

has a substantially limiting impairment when, in fact, the impairment is not so

needed, but unspecified, facts in opposition to summary judgment.” Baker v. Am. Airlines, Inc.,

430 F.3d 750, 756 (5th Cir. 2005).

4

The version of the ADA in effect in 2008, and not the amendments that took effect in

2009, controls whether Tyler was disabled because the layoffs took place in 2008, and the

amendments are not retroactive. See E.E.O.C. v. Argo Distrib., LLC, 555 F.3d 462, 469 n.8 (5th

Cir. 2009).

4

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limiting.” Kemp v. Holder, 610 F.3d 231, 237 (5th Cir. 2010) (quoting Sutton v.

United Air Lines, Inc., 527 U.S. 471, 489 (1999)).

Here, the district court did not err in granting summary judgment for La-

Z-Boy on the grounds that Tyler’s weight-lifting restrictions did not establish

that he had a disability under the ADA, or that there was a record of such

impairment, because our precedent forecloses finding that such restrictions

amount to a disability. See Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1120

(5th Cir. 1998); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996) (per curiam).

In Sherrod, 132 F.3d at 1120, this court found that a back injury that prevented

a flight attendant from lifting forty-five pounds occasionally and twenty pounds

frequently did not amount to “a substantial limitation in the major life activities

of lifting and working” because she was only “limited from heavy lifting, not the

routine duties of daily living.” In Ray, 85 F.3d at 229, this court found that a

disorder that prevented a worker from lifting more than five to ten pounds did

not substantially limit a major life activity because the worker could “lift and

reach as long as he avoids heavy lifting.” Because the facts in Ray and Sherrod

mirror those in this case, and because Tyler does not distinguish either case, we

find that Tyler’s lifting restrictions of twenty-four pounds from floor to waist and

twenty pounds from waist to overhead do not qualify as a disability under the

ADA.

The district court also did not err in granting summary judgment on the

grounds that La-Z-Boy did not regard Tyler as disabled because Tyler did not

introduce evidence that La-Z-Boy “entertained misperceptions” regarding his

physical abilities. Tyler argues that a La-Z-Boy manager’s reference to his

“limitations” amounts to animus directed toward Tyler. However, the manager’s

statement—that Tyler “was terminated because of [his] limitations due to [his]

injury” and that “there was no other position for [him]”—merely confirms that

La-Z-Boy believed it did not have any available vacant position that could

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accommodate Tyler’s lifting restriction. Tyler relies on Carmona v. Southwest

Airlines Co., 604 F.3d 848, 861 (5th Cir. 2010), in which this court found that the

employer’s explanation for firing an employee—that he violated an attendance

policy—was “unworthy of credence” because the employer had not fired other

employees who violated the policy. Unlike the employer in Carmona, La-Z-Boy’s

reasons for laying off Tyler are worthy of credence. First, unlike in Carmona, in

which a single employee was fired, Tyler was one of hundreds employees laid off

by La-Z-Boy. Second, unlike in Carmona, in which an employer treated its

employees arbitrarily, La-Z-Boy applied a neutral criterion—seniority5—when

deciding which employees to retain as trainers. In addition, unlike in E.E.O.C.

v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 727-29 (5th Cir. 2007), a case

cited by Tyler in which this court found that an employer regarded as disabled

an employee who was unable to stand for more than ten minutes and walk for

more than 100 feet without resting, Tyler’s lifting restrictions are not as severe

a physical limitation.6

In sum, the district court did not err in granting summary judgment on

Tyler’s disability claim because Tyler’s weight-lifting restriction did not amount

to a disability under the ADA.

5

La-Z-Boy's use of seniority to determine layoffs was consistent with its employee

handbook, which provides: “Employees shall be laid off in inverse order of seniority” within

the classification being reduced.” La-Z-Boy hired the three retained trainers in 1981, 1987,

and 1996, whereas the company hired Tyler in 1997.

6

Tyler also argues that the district court erred in applying the “circumstantial

evidence” framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as opposed

to the “direct evidence” framework of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Specifically, Tyler contends that he introduced direct evidence of discrimination: the statement

by a La-Z-Boy human resources manager that, because of Tyler's “limitations,” there “was

nothing in the La-Z-Boy Plants that Tyler could do.” Because we find that the weight-lifting

restrictions do not amount to a disability, we do not address whether the district court’s

alleged application of the McDonnell Douglas framework in the context of its disability

analysis was in error.

6

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4. Tyler’s Age Discrimination Claim

Under the ADEA, an employer cannot “discharge any individual or

otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s age.”

29 U.S.C. § 623(a)(1); see also Rachid v. Jack In The Box, Inc., 376 F.3d 305, 308-

09 (5th Cir. 2004). In a reduction-in-force case, a party makes out a prima facie

case of age discrimination by showing “(1) that he is within the protected age

group;7 (2) that he has been adversely affected by the employer's decision; (3) that

he was qualified to assume another position at the time of the discharge; and (4)

‘evidence, circumstantial or direct, from which a factfinder might reasonably

conclude that the employer intended to discriminate in reaching the decision at

issue.’” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting

Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir.1991)).

Although a prima facie case “is fairly easily made out,” Amburgey, 936 F.2d at

812, “what creates the presumption of discrimination is . . . the discharge coupled

with the retention of younger employees.” Thornbrough v. Columbus &

Greenville R.R. Co., 760 F.2d 633, 644 (5th Cir. 1985). A party that establishes

a prima facie case “raises an inference of unlawful discrimination.” Nichols, 81

F.3d at 41. “The burden of production then shifts to the defendant to proffer a

legitimate, non-discriminatory reason for the challenged employment action. The

defendant may meet this burden by presenting evidence that ‘if believed by the

trier of fact, would support a finding that unlawful discrimination was not the

cause of the employment action.’” Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509

U.S. 502, 506-08 (1993)) (citation omitted). “If the defendant meets its burden,

the presumption of discrimination created by the plaintiff's prima facie case

disappears and the plaintiff must meet its ultimate burden of persuasion on the

7

ADEA coverage extends to individuals at least forty-years-old. 29 U.S.C. § 631(a); see

Rachid, 376 F.3d at 309.

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issue of intentional discrimination.” Machinchick v. PB Power, Inc., 398 F.3d 345,

350 (5th Cir. 2005).

Here, the district court did not err in granting summary judgment for La-Z-

Boy on Tyler’s age discrimination claim because, even if we assume that Tyler

established a prima facie case, he did not rebut La-Z-Boy’s legitimate,

nondiscriminatory reasons for his termination. La-Z-Boy’s reasons for laying off

hundred of employees, including Tyler, in response to business conditions are

presumptively legitimate and nondiscriminatory because a reduction in force “is

itself a legitimate, nondiscriminatory reason for discharge.” E.E.O.C. v. Tex.

Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). Further, La-Z-Boy’s

specific reasons for laying off Tyler while retaining some employees as trainers

and transferring others to “floating” upholstery positions are legitimate and

nondiscriminatory because, as discussed above, La-Z-Boy acted pursuant to a

neutral criterion proscribed in its employee handbook—seniority—and because

Tyler’s lifting restrictions prevented him from being able to assume the “floating”

upholstery position.8 Tyler has not rebutted these legitimate, nondiscriminatory

reasons because he has not shown that a triable issue of fact exists as to whether

La-Z-Boy intentionally laid him off “in favor of younger, clearly less qualified

8

A supervisor of Tyler represented that he “was knowledgeable of other jobs that Terry

Tyler could have performed.” Even if we assume this to be true—Tyler does not produce

evidence, and the supervisor does not state expressly, that there were jobs available that could

accommodate Tyler’s lifting restrictions—it does not follow that La-Z-Boy’s reasons for laying

off Tyler were not legitimate. Rather, as discussed above, even if there were positions open

that could accommodate Tyler, a reduction-in-force itself is a legitimate, nondiscriminatory

reason for laying off an employee, see E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181

(5th Cir. 1996), and there is no evidence that La-Z-Boy intentionally laid off Tyler “in favor of

younger, clearly less qualified individuals.” Id. Although Tyler cites the case McInnis v. Alamo

Comm. College Dist., 207 F.3d 276 (5th Cir. 2000) for the proposition that he “was treated less

favorably than non-disabled employees in violation of the ADA and ADEA discrimination

laws,” the case is distinguishable because it did not involve a reduction-in-force. Rather, the

court in McInnis found that there was a triable issue of fact as to whether an employer that

fired a single employee did so because it regarded the employee as disabled. See McInnis, 207

F.3d at 282-84.

8

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individuals.” Id.; see also Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th

Cir. 1992). Tyler has not produced evidence that any new employees—let alone

any new, younger ones—were hired as trainers following his termination. Tyler

also has not produced any evidence that the trainers retained by La-Z-Boy were

“less qualified.” See Tex. Instruments, 100 F.3d at 1181. Although some of the

trainers retained as trainers, or transferred to the “floater” positions, were

younger than Tyler, more than half were age forty or older, and three were the

same age as, or older than, Tyler. As the district court correctly summarized,

“Tyler has not presented any evidence to show that the reasons proffered by

La-Z-Boy for his termination were not true, or that La-Z-Boy was motivated to

terminate him because of his age.”

In sum, the district court did not err in granting summary judgment on

Tyler’s age discrimination claim because, even assuming that Tyler established

a prima facie case of discrimination, Tyler was unable to rebut La-Z-Boy’s

legitimate, nondiscriminatory reasons for terminating his employment.

5. Conclusion

Accordingly, we AFFIRM the summary judgment.

9