Petition for Writ of Certiorari — Arrington v. Southwestern Bell Telephone Co.

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031605 may 2 6 2004

No. TRE OV tx

IN THE

Supreme Court of the United States

DICK W. ARRINGTON, PETITIONER

Vv.

SOUTHWESTERN BELL TELEPHONE COMPANY

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVID G. ROGERS

Counsel of Record

BROCKET ROGERS & FIVECOAT

24 Smith Road

Suite 400

Midland, TX 79705

(432) 686-7743

Attorney for Petitioner

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QUESTION PRESENTED FOR REVIEW

(1) | Whether the Trial Court erred in granting

the Defendant’s Motion for Summary

Judgment.

PARTIES TO THE PROCEEDING

The caption of this case names all the parties to the

proceeding in the court whose judgment is sought to be

reviewed.

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TABLE OF CONTENTS

Page

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(1) The Trial Court erred in granting

Defendant's Motion for Summary

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TABLE OF AUTHORITIES

Page

CASES

BRIDGES V. CITY OF BOSSIER 92 F.3D 329, 332

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‘DEAS V. RIVERWEST, L.P., 152 F.3D 471, 475 (5TH

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FABELA V. SOCORRO L.8.D. 329 F.3D 409, 414 (5TH

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FIERROS V. TEX. DEPT. OF HEALTH, 274 F.3D 187,

re CA Br sictaiinsiniasliainciineeiinne 9,10, 11

FLORENCE V. RUNYON 990 F.SUPP 485 (N.D.

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GEE V. PRINCIPI, 289 F.3D 342, 346 .0.......ccsssscsssssssesseees 11

GONZALES V. CITY OF NEW BRAUNFELS, TEXAS,

176 F.3D 834, 836 (TEX. APP. 1999)..........cccecssscsseessseeees 14

JIN V. METROPOLITAN LIFE INSURANCE CoO.,

2003 WL 21436211 (S.D.N.Y. 2008)........ cc ecscesseeseeeees 1

MURPHY V. UNITED PARCEL SERVICE, INC., 119

Bh, Ge ae I iticniciterniencenarereecianetinaaaseiasdaes 13

SUTTON V. UNITED AIR LINES, INC., 1198S. CT.

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OTHER AUTHORITIES

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]

Petitioner, DICK W. ARRINGTON, respectfully

prays that a Writ of Certiorari issue to review the opinion

and judgment entered by the United States Court of

Appeals for the Fifth Circuit on February 26, 2004.

OPINIONS BELOW

The Opinion of the U.S. Court of Appeals for the

Fifth Circuit, styled Dick Arrington v. Southwestern

Bell Telephone Company, is attached to this Petition at

Appendix (App.) p. la. The Fifth Circuit affirmed the

May 11, 2008, decision of the United States District Court

for the Western District of Texas, Midland-Odessa

Division in Dick Arrington v. Southwestern Bell

Telephone Company. See App. p. 14a.

JURISDICTION OF THE

SUPREME COURT OF THE UNITED STATES

The Opinion and Judgment of the United States

Court of Appeals for the Fifth Circuit was entered

February 26, 2004. This Petition is filed within ninety

(90) days after entry of the Judgment. See Sup. CT. R.

13.1. The Court has jurisdiction to grant certiorari under

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

This appeal involves 42 USCS § 12112 (2004)

which is attached to this petition at App. p. 21a.

STATEMENT OF THE CASE

1. Nature of the Case

Dick Arrington filed a lawsuit against Southwestern |

Bell Telephone Company alleging retaliation and violations i

of the Americans with Disabilities Act. Arrington claimed |

the company terminated him because of his diabetes and in

retaliation for filing an EEOC complaint.

2. Course of Proceedings

Arrington filed a lawsuit against Southwestern

Bell alleging violations of the ADA and retaliation. (CR

183-195).

After discovery, Defendant filed a Motion for

Summary Judgment and Exhibits. (CR 67-181). Plaintiff

filed an opposing brief. (CR 207-293).

The Court granted summary judgment and

entered judgment on behalf of Southwestern Bell

Telephone Company. (CR 534-540). Arrington timely

filed the Notice of Appeal. (CR 548-549). The Fifth

Circuit affirmed the judgment on February 26, 2004.

3. Statement of Facts

A. ‘| Undisputed Facts

Arrington, a diabetic, was an employee of the

Defendant Southwestern Bell Telephone Company from

1974 to 1998. (CR 535). From 1979 onwards, Arrington’s

designation at Southwestern Bell was “Customer

Services Technician,” or “CST”.” (CR 535). The CST

position involved the installation and repair of phones and

phone lines. (CR 535). In 1986, the Appellant was

diagnosed with diabetes. (CR 535). Beginning in 1987,

numerous complaints were lodged pertaining to his

physical appearance and work performance. (CR 535).

In 1995, Arrington developed diabetic ulcers and

had to take leave from his job. (CR 535). Following a

dispute with Southwestern Bell as to his date of return to

work, he was discharged from his employment. (CR 535).

He then filed a complaint with the Equal Employment

Oppcortunity Commission (EEOC) on September 9, 1996.

(CR 535). However, the parties entered into a general

settlement agreement and Arrington was reinstated in

his previous job. (CR 535).

Subsequent to his reinstatement, Arrington

continued to receive complaints from customers about

either his appearance or his work performance. (CR 536).

One such incident in 1997 led to Southwestern Bell’s

management placing the Appellant on “Decision Making

Leave,” a one-year probationary period during which he

was subject to dismissal for unsatisfactory performance of

his job duties. (536). On June 25, 1998, another customer

filed a complaint and Arrington was suspended on the

same day. (CR 536) At that point, the Defendant’s

management offered Arrington a position as “Supplies

Attendant,” a job that did not involve the CST’s customer

contact or productivity requirements. (CR536). When

Arrington refused this alternate employment at

Southwestern Bell, the Defendant proceeded to

recommend his permanent dismissal from the company.

(CR 5386). On November 12, 1998, Arrington was

terminated from his employment at Southwestern Bell.

(CR 536).

B. Factors that Negate Summary Judgment

Arrington has sued Southwestern Bell under the

Americans with Disabilities Act and has set forth a claim

of retaliation. (CR 183-195). The ADA claim alleges

Arrington was terminated because of his insulin

dependent diabetes. (CR 183-195). The retaliation claim

alleges he was terminated because he filed an EEOC

complaint against the company. (CR 183-195). As part of

the retaliation claim, the Plaintiff alleges that upon his

return to work in 1997, the company attempted to force

his resignation by harassing him and treating him

different from other employees. (CR 183-195).

The fact that Plaintiff has insulin dependent

diabetes is not a dispute. (CR 228, 237, 243-249). The

Plaintiff filed an EEOC complaint in 1996. (CR 230, 239,

248, 292). In 1997 in and all disputes between the

company and Arrington were settled. (CR 292).

Arrington was allowed to return to work based upon the

general settlement agreement. (CR 292).

Shortly after Arrington returned to work, he was

immediately sent home for alleged improper footwear.

(CR 230, 239, 257, R2 121). Other employees, who were

wearing similar footwear were not sent home. (CR 230,

257, R2 151).

Arrington was not allowed the same privileges as

other employees in matters relating to disability and

sickness. (CR 229-230, 239, 257). Specifically, he was not

allowed to work through his lunch or late in order to

cover time spent on appointments with physicians so that

he would not suffer a loss in pay. (CR 229-230, 239, 257).

Other employees were allowed to work through their

lunches or work late so that they could make their

doctor’s appointments without losing pay. (CR 229-230,

239, 257). Arrington was the only employee in his area

not allowed to work overtime. (CR 288).

Arrington was issued a performance notice based

on his productivity. Arrington’s productivity is also

subject to dispute. (CR 229-230, 239). He has testified

that other employees who were close to him in

productivity were not disciplined. (CR 229-230). Clay

Everett testified that as far as productivity, Dick

Arrington was not the worst. (CR 266-268). At one point

in time, Arrington was one of the slowest in Midland

however he was making a concerted effort to improve.

(CR 266-268). He had marked improvement as far as

improving his productivity. (CR 266-268). However,

Arrington was terminated before he was able to get to

the mark where he needed to be. (CR 266-268). Everett

also testified as far as technicians, he was in the middle of

the pack. (CR 266-268).

Company representatives have testified that

Arrington was one of the slowest in Midland, Texas and

they based their results on his productivity in this area.

However, the interpretation of results raises a question of

fact as to whether Arrington’s productivity was a valid

factor in his termination.

Southwestern Bell had Arrington take an

independent medical examine and a functional capacity

examine. (CR 229-230, 239, 258). A third examination was

scheduled in Big Spring, Texas. (CR 229-230, 239). The

functional capacity examine lasted eight hours. (CR 229-

230, 258). Other employees functional capacity examine

lasted only one hour. (CR 229-230, 239). A third

examination was scheduled and ultimately canceled due

to a union protest. (CR 258).

Part of the reason Arrington was terminated was

customer complaints. He testified in his deposition he

believes the complaints against him were solicited. (R2

151). Specifically, he indicated that if a repairman has a

problem the supervisor usually informs the union and

then an investigation is performed. Arrington claims that

Southwestern Bell did not investigate his complaints in

this matter. (R2 151). Clay Everett testified that in his

opinion the company did not perform an investigation on

at least one of these events, specifically the Salgado

incident. (CR 269). Arrington contests Defendant’s

allegations that the customer was upset because of

Plaintiffs appearance. Specifically, he contends that Mr.

Salgado was upset because his doorbell wire was cut. (CR

230-231).

As a result of this complaint the company placed

Plaintiff on DML, although he was not on any step of

positive discipline at that time. (CR 230-231). Again,

there is a question as to whether or not Plaintiff was

being treated differently from other employees in regards

to disciplining.

Arrington has alleged that the company had not

issued him proper equipment to perform his job. (CR 258,

R2 159). Arrington testified in his deposition that he was

provided a Chevrolet Van. (R2 159). Everyone else was

driving a cable truck. (R2 159). His van was retired. (R2

159). Furthermore, Arrington testified that he was

provided substandard equipment in an effort to provoke

him. (CR 265, R2 159). The van was not air conditioned.

(CR 265).

ree 8:

The company had Arrington ride along with

another employee. (R2 153). According to the company,

the purpose of the ride along is to show the employee how

to become more productive. Arrington however testified

that he believes the company had him do a ride along to

test, provoke and humiliate him. (R2 153). He testified

that he was number 5 out of seniority. ( R2 153).

The straw that broke the camel’s back has been

referred to as the Prickle incident. Evidently, the

customer changed her request when Arrington arrived at

the scene. (CR 231, R2 154). Arrington was not able to

finish the job. At this time, Arrington was not allowed to

work overtime. (CR 239). The customer was angry with

Arrington because he did not stay and finish. (CR 239,

283). The customer did not initiate the complaint but was

contacted by Junior Brown. (CR 239, R2 174). According

to Arrington and Clay Everett, the customer was mad

because Arrington did not finish the job. (CR 239).

Part of the decision to terminate Arrington, was a

result of his coding on the date of the Prickle incident. (R2

154-155). Both Arrington and Everett testified that he

did not falsely code his work. (CR 239). Specifically,

Arrington placed the letters “O.T.” indicating that he was

not allowed to work overtime. (CR 239, R2 154-155). Asa

result of the Prickle incident, he was suspended on June

25, 1998. This incident raises relevant fact issues in that

Arrington was disciplined for his coding. Again, he was

not allowed to work overtime. Furthermore, there is the

question as to whether he performed improperly on this

job or whether the customer was simply mad because he

could not finish the job.

Arrington was offered the position of supplies

attendant. (R2 155-156). He believed the supplies

attendant position to be demotion. (R2 155-156). This

position paid less and had significantly different job

responsibilities. (R2 155-156).

Arrington also testified that he was singled out

because of his weight and beard length. (CR 229, 237).

The company countered in their depositions that Plaintiff

was counseled on his appearance based on the standards

for Midland, Texas, not other areas. However, again, this

raises a question of fact as to Arrington’s different

treatment.

This brief recitation of the factors, in no means,

covers all the facts in this lengthy case. However, these

are the pertinent factors Appellant believes negate

summary judgment.

Appellant will next analyze the elements for an

ADA claim and retaliation claim and show that there are

material questions of fact which should negate summary

judgment.

REASONS FOR GRANTING THE WRIT

(1) The Trial Court erred in granting

Defendant’s Motion for Summary

Judgment

1. Standard of Review

The Court reviews de novo the District Court’s

grant of summary judgment, applying the same standard

as the District Court. Fabela v. Socorro I.S.D. 329 F.3d

409, 414 (5 Cir. 2003). In order to determine if summary

judgment was properly entered in favor of Southwestern

Bell, the Court reviews the record in the light most

favorable to the Plaintiff and resolves all reasonable

inferences in his favor. Jd. It is well settled that at the

summary judgment stage of litigation the function of the

trial bench or reviewing court is not to step into the stead

of the jury and weigh the evidence in search of the truth,

but is instead to determine whether there exists a

genuine issue for trial. /d.

Summary Judgment is not favored in claims of

employment discrimination, it is nonetheless proper when

“there is no genuine issue as to any material fact and the

moving party is entitled to summary judgment as a

matter of law. Fierros v. Tex. Dept. of Health, 274 F.3d

187, 190 (5 Cir. 2001). In making a summary judgment

determination, doubts are to be resolved in favor of the

nonmoving party and any reasonable inferences are to be

drawn in favor of that party. Jd. The Supreme Court

recently emphasized the paramount role that juries play

in Title VII cases, stressing that in evaluating summary

judgment evidence, courts must refrain from the making

of credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from

the facts which are jury’s functions not those of the

Judge.

2. Retaliation

In order to establish a prima facie case of

retaliation, a Plaintiff must demonstrate: (1) that he

engaged in activity protected by Title VII, (2) that an

adverse employment action occurred and (8) a causal link

existed between the protected activity and the adverse

employment action. Jd at 191. The Fifth Circuit has

determined that only ultimate employment decisions such

as hiring, granting leave, discharging, promoting and

compensating satisfy the adverse employment action

element of a prima facie case of retaliation. Jd.

The burden of proof in retahation cases depends on

the nature of Plaintiff's evidence supporting the causation

element. Ifthe Plaintiff seeks to establish causation by.

circumstantial evidence, the burden shifting frame work

of McDonnell Douglas applies. Jd. The Plaintiff carries

the initial burden of establishing a prima facie case of

retaliation. Jd. The employer can rebut the prima facie

showing and the Plaintiff then has the burden of proving

that the Title VII protected activity was a “but for” cause

of the employment decision. /d. If the Plaintiff presents

evidence supporting the prima facie case, plus evidence

that the reasons given by the employer for the adverse

employment action were pretextual, a jury may infer the

existence of the “but for” causation.

If on the other hand the Plaintiff presents direct

evidence that the employer’s motivation for the adverse

action was at least in part retaliatory, then the McDonnell

Douglas frame work does not apply. /d. In such direct

evidence cases the burden of proof shifts to the employer

to establish by a preponderance of the evidence that the

same decision would have been made regardless of the

forbidden factor. /d.

3. Protected Activity

Arrington filed an EEOC complaint in 1996. This

is a protected activity. Furthermore, the filing of an

internal discrimination complaint is a protected activity.

Fierros at 194. Appellant has provided the District Court

with evidence of an agreement which was the result of an

EEOC complaint and an internal grievance. (CR 292-

293).

4. Adverse Employment Action

Arrington proved that he suffered an adverse

employment action. Specifically, he was terminated from

Southwestern Bell.

A Federal District Court has found a fact issue as

to whether the Plaintiff suffered an adverse action when

he was transferred to a different location, his work hours

were changed from 9:30 a.m. —6:00p.m. to 5:00a.m.-1:30

p.m. and he had slightly different job duties. Florence v.

Runyon 990 F.Supp 485 (N.D. Tex. 1997).

5. Causal Link Between Protected Activity and

Adverse Employment Action

The causal link required by the third prong of the

prima facie case does not rise to the level of a “but for”

standard. Gee v. Principi, 289 F.3d 342, 346. The Plaintiff

needs to prove that his protected activity was the sole

factor motivating the employer’s challenged decision in

order to establish the causal link element of a prima facie

case.

Arrington presented sufficient summary judgment |

evidence to raise material fact issue. There is evidence |

that raises the issue of whether Arrington was treated

differently from other employees, whether the Defendant

solicited complaints, and whether or not he was truly

nonproductive. Further, Arrington has raised evidence

regarding the alleged coding violations.

6. “But For” Analysis

If the Plaintiff presents evidence supporting the

prima facie case plus evidence that the reasons given by

the employer for the adverse employment action were

pretextual, a jury may infer the existence of the “but for”

causation. Fierros at 191-192. Arrington presented

summary judgment evidence which raised a material

question of fact as to the “but for” issue. Specifically,

Arrington produced evidence that he was treated

differently when he returned to work after filing an

EEOC claim and an internal grievance. Both Arrington

and Clay Everett, the union president, testified that the

company was not performing proper investigations.

Arrington argued he was not as productive not only

because of his diabetic condition but because he was not

given the proper equipment. Arrington produced

evidence that employees with similar appearances were

treated differently. He raised more than a scintilla of

evidence regarding the “but for” claim.

items

Finally, there is a material question of fact as to

when the adverse employment action began. Arrington

returned to work in 1997 and was terminated in 1998.

Arrington produced evidence that the company

immediately began taking action against him after his

return to work. Therefore, there is a material question of

fact as to when the adverse employment action began.

7. Americans with Disabilities Act

The ADA prohibits discrimination against a

qualified individual with a disability. The ADA defines

actual disability, in relevant part, as “a physical or mental

impairment that substantially limits one or more of the

major life activities of an individual.” 42 U.S.C. § 12102

(2)(A).

Whether an impairment is substantially limiting is

determined in light of: (1) the nature and severity of the

impairment; (2) its duration or expected duration; (8) its

permanent or expected permanent or long-term impact.

29 C.F.R. § 1630.2(j). “Major life activities include

functions such as caring for oneself, performing manual

tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. Id. Other activities such as

standing, sitting, lifting, or reading are also considered

major life activities, at least by the EEOC.

In the Supreme Court’s Murphy and Sutton

decisions, it concluded that the determination of whether

an employee’s impairment “substantially limits” one or

more of the major life activities is made with reference to

the mitigating measures the individual employs. Murphy

v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999);

Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999).

For example, in Murphy, the employee’s high blood

pressure did not substantially limit his major life

activities when he was medicated, and consequently, he

was not disabled under the ADA.

The ADA makes it unlawful for an employer to

discriminate against an employee who is a qualified

individual with a disability because of that individual’s

disability. 42 U.S.C § 12112 (a)(2001). To prevail on a

claim under the act a Plaintiff must prove that (1) he has a

disability, (2) he is qualified for the position in which he

seeks employment and (3) he was discriminated against

solely because of his disability. Gonzales v. City of New

Braunfels, Texas, 176 F.3d 834, 836 (Tex. App. 1999).

The ADA also prohibits discrimination not only

against employees who are actually disabled, but also

against employees whom the employer “regards as” or

“perceives as” being disabled. Under this “regard as” or

“perceived as” provision of the ADA, a-person will be

treated as having a substantially limiting impairment if

he shows that he: (1) has an impairment that is not

substantially limiting but that the employer perceives as

constituting a substantially limiting impairment; (2) has

an impairment that is substantially limiting only because

of the attitude of others toward such an impairment; or

(3) has no impairment at all but is regarded by the

employer as having a substantially limiting impairment.

Deas v. Riverwest, L.P., 152 F.3d 471, 475 (5" Cir. 1998),

Bridges v. City of Bossier 92 F.3d 329, 332 (5" Cir. 1996).

The Fifth Circuit has held that insulin dependant

diabetes is a disability. In the Gonzales case, the Court

held that in determining whether an individual is disabled

Court should consider a serious impairment such as

Cs mimeiesieci eile l asia an

diabetes in its unmitigated state. Gonzales Id at 837. An

insulin dependent diabetic who is deprived of insulin will

lapse into a coma. Hence, in its unmitigated state,

Arrington’s diabetes substantially limits one or major life

activities. /d.

It is important to note that this case was decided

before the Supreme Court’s decision in Murphy and

Sutton.

Since Arrington has this diabetic condition, there

is a material question of fact as to whether he suffers from

a disability.

It is not in dispute that he was qualified for the

position in which he seeks employment.

A qualified individual with a disability is a disabled

person who satisfies the requisite skill, experience,

education and other job related requirements of the

employment position he holds or desires and who with or

without reasonable accommodation can perform the

essential function of that job. Gonzales at 837.

Under the ADA and if employee proves that his

employers fail to make reasonable accommodations to the

employees known physical or mental limitations, the

employer will be deemed to have discriminated unless it

can show that accommodation would impose an undo

hardship on the operation of its business.

Arrington did not request any _ specific

accommodations. However, a reasonable accommodation

to Arrington would be to allow him addition time to

complete his jobs.

——

16 ——

An employee may also recover if he is able to show

that the employer regards him as disabled or perceives

him as being disabled. The summary judgment evidence

showed that the company knew about Mr. Arrington’s

diabetes but never regarded him as being disabled.

— — AUR A ON

The evidence pi. sented by the Appellant shows

that he considered himself a productive member of the

Southwestern Bell team: He disputes Southwestern

Bell’s allegations regarding his productivity. He believes

he was in the middle of the pack as related to other

employees at Southwestern Bell. He only stated that his

condition slowed him down but he attributed that to both

his condition and age. The Defendant further testified

that Appellant’s absences for any medical visits vere not

held against him. Appellant can really raise only three

questions of fact regarding whether or not Plaintiffs

diabetic condition was reason for his termination. First,

Arrington’s diabetic condition may have contributed to

his productivity. Second, Arrington testified that he

needed to take frequent snack breaks and had a specialty

diet because of diabetes. The company alleged, and this

was denied by Arrington, that he would take picnic

breaks. Finally, Arrington was treated differently from

other employees.

CONCLUSION

The District Court’s Summary Judgment should be

reversed because Arrington raised questions of material

fact on both the discrimination claim and the retaliation

claim. Specifically, Arrington proved that he engaged in

an activity protected under Title VII, that an adverse

employment action occurred and he raised material

questions of fact as to whether a causal link existed

between the protected activity and the adverse

employment action. Arrington presented summary

judgment evidence that immediately upon his return to

work he was sent home for improper footwear. Other

employees wearing similar footwear were allowed to

work. Arrington disputed the company’s reasons for

productivity. Arrington raised material questions of fact

regarding whether or not the supply attendant position

was a demotion. Arrington further testified that he was

provided substandard tools and that the company

harassed him by forcing ride-alongs.

Because Arrington raised material questions of

fact, the Trial Court erred in granting summary judgment

and this case should be reversed.

PRAYER

Appellant requests the Petition for a Writ of

Certiorari be granted.

Respectfully submitted,

David G. Rogers

Counsel of Record

Brockett, Rogers & Fivecoat

24 Smith Road, Suite 400

P. O. Box 1841

Midland, Texas 79702

(432) 686-7743

(432) 683-6229 Facsimile

Attorneys for Petitioner

(Any footnotes follow end of each document)

No. 03-50656

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DICK W. WARRINGTON

Plaintiff-Appellant

SOUTHWESTERN BELL TELEPHONE CO.

Defendant-Appellee

Filed February 26, 2004

Appeal from the United States District Court for the

Western District of Texas No. MO-00-CV-57

Before KING, Chief Judge, and BENAVIDES and

CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Dick W. Arrington appeals the

district court’s grant of summary judgment to

Defendant-Appellee Southwestern Bell Telephone

Company (“SW Bell”) on his disability discrimination

and retaliation claims. For the following reasons, we

AFFIRM. —

I. BACKGROUND

Arrington was employed by SW Bell from 1974 to 1998.

Beginning in 1979, Arrington worked as a Customer .

Services Technician (“CST”), installing-and repairing {

phones and hone lines for SW Bell’s customers at their

homes and places of business. Arrington was diagnosed

with diabetes in 1986 and his supervisor, Junior f ‘own,

admits that he and the company were aware of this

diagnosis. In fact, in December 1995, Arrington had to

take disability leave due to problems associated with

diabetic ulcers on his feet. After a dispute over his date

of return, Arrington was discharged and filed a

complaint with the Equal Employment Opportunity

Commission (“EEOC”). Arrington and SW Bell

subsequently settled their dispute, and Arrington was

reinstated to his position as a CST in January 1991.

SW Bell repeatedly counseled Arrington for

absenteeism and productivity problems beginning in

1987. In addition, the company began to receive

numerous complaints from customers about Arrington’s

physical appearance, attitude, and skill level in 1988, for

which Arrington was also repeatedly counseled. In

1995, Arrington was informed by SW Bell that, because

of his low productivity and tendency to waste time on

the job, he was ineligibie to work overtime until there

was a “noticeable improvement” in his performance.

This restriction continued to apply after Arrington was

\____yreinstated in January 1997.

In November 1997, SW Bell placed Arrington on

Decision Making Leave due to a customer’s complaints

that Arrington mistakenly cut the customer’s doorbell

wire, that his appearance upset the customer’s

daughter, and that he had a poor attitude Under the

Leave, Arrington was given a day to decide whether

her to return to work at SW Bell. He agreed to return

and was placed on probation for one year, during which

ne was subject to dismissal for unsatisfactory

performance of his job duties. Then, on June 24, 1998,

Junior Brown visited a job site listed on Arrington’s

schedule, but he could not find Arrington. Both parties

agree that Brown contacted the customer, Ms. Prickle,

the next day to determine whether Arrington had;

indeed, worked there. According to Brown, Prickle

complained about Arrington’s inability to finish the job

and his rude behavior; Brown also contends that

Arrington improperly coded his work for Prickle, in

violation of company policy. As a result, Arrington was

suspended from his CST position, and SW Bell later

offered him a Supplies Attendant position, which did

not involve either customer contact or productivity

requirements. When Arrington refused to accept this

position, SW Bell dismissed him.

After his second termination from SW Bell, Arrington

initiated the present lawsuit, alleging that SW Bell

violated the Americans with Disabilities Act (“ADA”)

by subjecting him to disparate treatment and

eventually firing him because of his diabetes. Arrington

also alleges that his treatment and discharge from SW

Bell were improperly motivated by retaliation for his

filing of an EEOC complaint in 1996. For example,

Arrington believes that SW Bell solicited all of the

customer complaints against him and that other, less

efficient CSTs were ne'‘ther disciplined nor counseled,

as he was, for poor productivity.

In January 2003, SW Bell filed a motion for summary

judgment, asserting that Arrington had failed to

establish either that he suffered from a_ legally

cognizable “disability” or that SW Bell’s proffered

reasons for firing him were pretextual. The district

court agreed, and granted summary judgment in favor

of SW Bell on both the disability discrimination and

retaliation claims in May 2003. Arrington appeals both

of these decisions.

II. STANDARD OF REVIEW

We review a district court’s grant of summary

judgment de novo, applying the same standard as the

district court. Seaman v. CSPH, Inc., 179 F.3d 297, 299

(5th Cir. 1999). Summary judgment is appropriate

when the record demonstrates no genuine issue of

material fact and where the moving party is entitled to

a judgment as a matter of law. Fed. R. Civ. P. 56(c).

Although in our review of the record we must draw all

reasonable inferences in favor of the nonmoving party,

“{tlhe moving party is entitled to a judgment as a

matter of law [if] the nonmoving part has failed to make

a sufficient showing on an essential element of [his] case

with respect to which [he] has the burden of proof.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal quotation marks omitted). Moreover, we have

stated that the nonmoving party does not demonstrate

the ex stence of a genuine issue of fact (and does not

thereby avoid summary judgment) by asserting some

metaphysical doubt as to the material facts, by

conclusory allegations, by unsubstantiated assertions, o

by only a scintilla of evidence.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)

(citations and internal quotation marks omitted).

III. DISCUSSION

A. Disability Discrimination

A plaintiff may prove intentional discrimination under

the ADA either by presenting direct evidence of

discrimination or by utilizing the familiar McDonnell

Douglas burden-shifting method of proof. Seaman, 179

F.3d at 300. Because Arrington provides only

circumstantial evidence of discrimination, we review his

claim under the latter standard. To establish a prima f

facie case of disability discrimination, Arrington must

show that he “(1) suffers from a disability; (2) was

qualified for the job (3) was subject to an adverse

employment action, and (4) was replaced by a non-

disabled person or treated less favorably than non

disabled employees.” Id.; see also 42 U.S.C. § 12112(d)

(2000).

The parties dispute whether Arrington has met his

burden of proof regarding the first element of the prima

facie case. Under the ADA, a “disability” is defined as

(A) a physical or mental impairment that substantially

limits one or more of the major life activities of [an]

individual;

(B) a record of such an impairment; or

42 US.C. § 12102(2) (2000). Arrington asserts that he

meets either definition (A) or definition (B) because he

suffers s from diabetes. n2 Specifically, he argues that

this circuit held, in Gonzales v. City of New Braunfels,

176 F.3d 834, 837 (5th Cir. 1999), that insulin-dependent

diabetes is a “disability” as that term is defined in the

ADA. SW Bell disagrees, and contends that Arrington

must produce evidence suggesting that his diabetic

condition “substantially limits” at least one of his

“major life activities.” See 42 U.S.C. S 12102(2)(A);

EEOC v. R.J. Gallagher Co., 181 F.3d 645, 655 (5th Cir.

1999) (holding that, for a plaintiff to prove that he has a

“record of impairment” under 42 U.S.C. § 12102(2)(B),

“there must be a record of an impairment that

substantially limits one or more of [his] major life

activities”).

SW Bell correctly identifies the flaws in Arrington’s

position. Gonzales does not stand for the proposition

that diabetes is a disability per se; rather, Gonzales

merely noted that, at that time, this circuit’s precedents

required a plaintiffs claim that he suffered a

“disability” to be evaluated by considering the impact

of the plaintiffs untreated impairment on his major life

activities. 176 F.3d at 837. Under that test, the

Gonzales court observed that insulin-dependent

diabetes would qualify as a disability because, if

someone with this disease is deprived of insulin, he will

lapse into a coma. Id. But this observation was mere

dicta, and the Gonzales court cautioned that the

Supreme Court was currently considering whether

disabilities should, in fact, be measured without

reference to mitigating factors. Id. Thus, not only is

this observation not binding precedent, but its logical

force has been undermined by the Supreme Court’s

subsequent determination, in Sutton v. United Air

Lines, Inc., 527 U.S. 471, 482-83 (1999), that “(a) person

whose physical or mental impairment is corrected by

medication or other measures does not have an

impairment that presently ‘substantially limits’ a major

life activity.” Instead, whether a person is disabled

under the ADA “depends on whether the limitations an

individual with an impairment actually faces are in fact

substantially limiting.” Id. at 488. n3

In Toyota Motor Manufacturing, Kentucky v. Williams,

034 U.S. 184 (2002), the Supreme Court further clarified

that “i]t is insufficient for individuals attempting to

prove disability status under this test to merely submit

evidence of a medical diagnosis of an impairment”;

instead, plaintiffs are required to offer evidence of the

“extent of the limitation . . . in terms of their own

experience.” Id. at 198 (citation and internal quotation

marks omitted). Therefore, because Arrington

attempts to prove that he suffers from a disability

simply by referring to his medical diagnosis of diabetes,

Arrington’s claim must fail. He has not explained, in

either his opposition to summary judgment or his brief

on appeal, how his diabetes has limited any of his major

life activities.

Nevertheless, in his deposition, Arrington complained

that, when he worked at SW Bell, his diabetes affected

his “production.” n4 Viewing the record in the light

most favorable to Arrington, he may have been

attempting to argue that his diabetes qualifies as a

disability because it substantially limited his major life

activity of “working.” But this argument fails as a

matter of law. While we have recognized that

“working” is a major life activity for the purposes of the

ADA, R.J. Gallagher Co., 181 F.3d at 654, this court has

also explained that “[e]vidence of disqualification from a

Single position or a narrow range of jobs will not

Support a finding that an individual is substantially

limited from the major life activity of working.” Talk v.

Delta Airlines, Inc., 165 f.2d 1021, 1025 (5th Cir. 1999):

accord Sutton, 527 U.S. at 491. Thus, because he does

not claim that he was incapable of performing a range

of jobs due to his diabetes, Arrington has not

demonstrated that he has either a disability or a record

of impairment under the ADA. nd

B. Retaliation

To establish a prima facie case of retaliation, a plaintiff

must prove that (1) he engaged in an activity protected

by the ADA, (2) he was subjected to an adverse

employment action, and (3) a causal connection existed

between his participation in the protected activity and

the adverse employment action. Seaman, 179 F.3d at

301. Once the plaintiff has proven a prima facie case,

the burden of production shifts to the defendant to

come forward with a legitimate, non-discriminatory

reason for the adverse employment action. Id. if such a

reason is provided, then the plaintiff must proffer

evidence that the given reason is pretextual. Id. In

essence, the plaintiff “must show that ‘but for’ the

protected activity, the adverse employment action

would not have occurred.” Id.

We need net decide whether. Arrington has established

a prima facie case of retaliation because he has failed to

demonstrate a genuine issue of fact regarding whether

SW Bell’s legitimate, non-discriminatory reason for

firing him was pretextual. SW Bell has provided

evidence that Arrington was discharged due to his

troubled performance history and the company’s

receipt of numerous customer complaints regarding

Arrington’s appearance, demeanor, and working skills.

In addition, SW Bell has shown that, in an attempt to

help Arrington improve his performance and prevent

his termination, SW Bell placed Arrington on five

different Performance Improvement Plans, offered him

assistance from the company’s Employee Assistance

Program (he declined), and offered him two days of ride

along” assistance from a training manager (he refused

to participate on the second day). Yet, after he was

placed on one year of probation and warned that

further problems would warrant immediate dismissal,

Arrington was the subject of another customer

complaint. But because Arrington’s difficulties were

centered on interaction with customers and his level of

productivity, SW Bell asserts and Arrington concedes,

that instead of being immediately fired he was offered

the Supplies Attendant position, which he declined.

Thus, SW Bell has met its burden of providing a

legitimate, nondiscriminatory reason for discharging

Arrington.

In rebuttal, Arrington provides only a scintilla of

evidence that SW Bell’s proffered reasons are

pretextual. Arrington on claims that, after he returned

to work in 1997, SW Bell unfairly disciplined him for his

poor performance while the company’s other employees

with similar productivity levels were no disciplined.

For support, Arrington provides a statement from Clay

Everett, Arrington’s union supervisor, that refers to

Arrington’s job productivity as in the “middle of the

pack” compared to other SW Bell employees. n6 Yet,

both Everett and Arrington have also admitted that

Arrington was once one of the slowest employees in

Midland and that, although his performance was

improving, he had not achieved the “mark where he

needed to be” before he was terminated.

10a

In addition to contesting SW Bell’s view of his

productivity, Arrington alleges that the customer

complaints lodged against him were improperly

solicited by SW Bell’s employees. But other than the

Prickle incident, where Arrington challenged his

supervisor to call the customer and check that he was

really working at her home, Arrington provides no

evidence to support his claim of solicitation. The

remainder of Arrington’s examples of disparate

treatment--that he was sent home for wearing footwear

that another CST was allowed to wear, that he was

given an un-air-conditioned van rather than the cable

truck driven by other CSTs, that his tools were

substandard, that his supervisors made rude comments

about his age and productivity, and that he was

subjected to more extensive medical evaluations than

his fellow CSTs--are not relevant to the issue at hand:

whether SW Bell’s explanation that Arrington was

fired for poor productivity and customer complaints is

merely pretext for retaliation.

In support of his claim of pretext, Arrington also

contends that SW Bell did not follow its standard

practice of allowing a union supervisor to investigate

the customer complaints lodged against him. Arrington

buttresses his argument by pointing out that Everett

has similarly expressed his belief that the final

customer complaint, involving Prickle, was _ not

“objectively” investigated. n7 Moreover, Arrington

and Everett dispute SW Bell’s version of the Prickle

incident, asserting that the customer was mainly upset

that Arrington did not complete the job, which they

believe was caused by his ineligibility to work overtime.

Yet, the summary-judgment record contains admissions

from both Arrington and Everett that Arrington did

lla

not use an official SW Bell code when he filed the

paperwork regarding his inability to complete the

Prickle job, although neither thinks that this “offense”

was serious.

Viewed in its entirety, Arrington’s evidence of pretext

and retaliatory treatment is insufficient to permit a

reasonable jury to conclude that Arrington would not

have been terminated “but for” his filing of an EEOC

complaint in 1996. Arrington fails to identify any

similarly situated employees (i.e., those with a history

of numerous customer complaints and a similarly low

productivity level) who were neither disciplined nor

discharged for their poor job performance. Arrington

believes that he was not a poor CST, but “(mlerely

disagreeing with an employer’s negative performance

assessment is insufficient to show pretext.” Perez v.

Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir.

2002). Moreover, Arrington’s subjective belief that SW

Bell solicited the customer complaints, without more, is

also insufficient to cast doubt on SW Bell’s proffered

reason for his termination. See Auguster v Vermilion

Parish Sch. Bd., 249 F.3d 400, 403 (5th Cir. 2001) (“This

court has consistently held that an employee’s

‘subjective belief of discrimination’ alone is not

sufficient to warrant judicial relief.” (citations

omitted)). n8 Therefore, the district court properly

held that SW Bell was entitled to summary judgment

on Arrington’s retaliation claim.

IV. CONCLUSION

Accordingly, we AFFIRM judgment of the district

court.

12a

Footnotes

* Pursuant to 5th Cir. R. 47.5, the court has deter

mined 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.

n2 Arrington concedes that he was not regarded as

disabled.

n3 Moreover, Sutton specifically cautioned that

assessing diseases in their untreated state would

require courts to, for example, treat all diabetics as

disabled per se, a result which the Court noted “is

contrary to both the letter and the spirit of the ADA.”

527 U.S. at 484: see also Waldrip v. Gen. Elec. Co., 325

F.3d 652, 656 (5th Cir. 2443) (“{NJeither the Supreme

Court nor this court has recognized the concept of a per

se disability ability under the ADA... .”).

n4 Additionally, in his motion for summary judgment,

Arrington stated that SW _ Bell should have

accommodated his disability by allowing him additional

time to complete his jobs. But Arrington also conceded

that he never requested that SW Bell provide him with

any reasonable accommodations.

n5 To the extent that Arrington’s response to SW

Bell’s motion for summary judgment can be read to

imply that the diabetic foot ulcers on his feet

substantially limited his major life activity of “walking,”

it fails as a matter of law. Cf. Talk, 165 F.3d at 1025

(holding that a plaintiffs ability to walk was not

substantially limited simply because she walked with a

l3a

limp, moved slower than other people, and was

required to wear special orthopedic shoes).

n6 =‘ Everett’s statement refers to a document

comparing the number of jobs performed per day by

many of SW Bell’s employees. Because this document

has not been made a part of the summary judgment

record, it is impossible for this court to know whether

that document compared a variety of SW Bell’s

statewide employees, only SW Bell’s CSTs or, more

specifically, only those CSTs who worked in the

Midland office in addition, the record does not reflect

whether any of the employees on this list were subject

to discipline nor does it reflect the number of customer

complaints associated with each employee.

n7 Everett did not claim to have personal knowledge

that the other customer complaints lodged against

Arrington were improperly investigated.

n8 The one factor in Arrington’s favor is his evidence

from Clay Everett, who also believes that Arrington

was treated unfairly. Yet Everett admitted that

Arrington had a history of poor productivity and

customer complaints, and he did not claim to have

personal knowledge that the complaints against

Arrington were either baseless or solicited by

Arrington’s supervisors at SW Bell.

14a

MO-00-C A-057

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF TEXAS MIDLAND-

ODESSA DIVISION

DICK W. ARRINGTON,

Plaintiff

¥.

SOUTHWESTERN BELL TELEPHONE

COMPANY,

Defendant

Filed May 12, 2003

ORDER GRANTING DEFENDANT'S MOTIO?.

FOR SUMMARY JUDGMENT

Before the Court is the Defendant’s Motion for

Summary Judgment, filed on January 6, 20038, in the

above numbered and styled cause. The Plaintiffs

Memorandum and Opposition to Defendant’s Motion for

Summary Judgment was filed on February 14, 2003.

The Defendant’s Reply to Plaintiffs Response to

Motion for Summary Judgment was filed on March 18,

2003. Finally, on March 27, 2003, the Court held a

hearing on the Defendant’s Motion for Summary

Judgment. After due consideration of the filings of the

parties, as well as the arguments made at the hearing

on March 27, 2003, the Court is of the opinion that the

Motion for Summary Judgment be GRANTED.

15a

STANDARD OF REVIEW FOR SUMMARY

JUDGMENT

Summary judgment is proper “if 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 material fact and that the

moving party is entitled to judgment as a matter of

law.” FED. R. CIV. P.56(c). The moving party has the

burden of showing that there is no genuine issue as to

material fact. Willis v. Roche Biomedical Lab., Inc., 61

F.3d 313, 315 (5th Cir.1995). Once the movant carries

this burden, the burden shifts to the nonmovant to

show the existence of a genuine issue for trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 323-26 (1986); Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87 (1986). All justifiable inferences to be drawn

from the underlying facts must be viewed in the light

most favorable to the party opposing the motion.

Matsushita, 475 U.S. at 587. If the record, viewed in

that light, could not lead a rational trier of fact to find

for the nonmovant, summary judgment is proper.

Kelley v. Price Macemon, Inc., 992 F.2d 1408, 1413 (5th

Cir. 1993), cert denied, 510 U.S. 1043 (1994)(citing

Matsushita, 475 U.S. at 577-78).

FACTUAL BACKGROUND

The Plaintiff, a diabetic, was an employee of the

Defendant Southwestern Bell Telephone Company

from 1974 to 1998. From 1979 onwards, the Plaintiff's

designation at Southwestern Bell was “Customer

Service Technician,” or “CST.” The CST position

involved the installation and repair of phones and phone

lines. In 1986, the Plaintiff was apparently diagnosed

16a

with diabetes. Beginning in 1987, numerous complaints

were lodged pertaining to the Plaintiff's physical

appearance and work performance. See App. Def’s.

Mot. Summ. J. Ex.3 at 4-10. The Plaintiff stated at the

hearing on March 27, 2003 that he does not contest the

fact that he was reprimanded several times during his

tenure at Southwestern Bell.

In 1995, the Plaintiff developed diabetic ulcers and had

to take leave from his job. Following a dispute with

Southwestern Rell as to his date of return to work, the

Plaintiff was apparently discharged from his

employment. He then filed a complaint with the Equal

Employment Opportunity Commission (EEOC) on

September 9, 1996. However, a general settlement

agreement was reached between the parties and the

Plaintiff was reinstated in his previous job at

Southwestern Bell in 1997.

Subsequent to his reinstatement, the Plaintiff

continued to receive complaints from customers about

either his appearance or his work performance. One

such incident in 1997 let to Southwestern Bell’s

management placing the Plaintiff on “Decision Making

Leave,” a one-year probationary period during which

the Plaintiff was subject to dismissal for unsatisfactory

performance of his job duties. On June 25, 1998,

another customer filed a complaint dealing with the

Plaintiff; he was therefore suspended on the same day.

At that point, the Defendant’s management offered the

Plaintiff a position as “Supplies Attendant,” a job that

did not involve the CSTs customer contact or

productivity requirements. When the Plaintiff refused

this alternate employment at Southwestern Bell, the

Defendant proceeded to recommend his permanent

17a

dismissal from the company. On November 12, 1998,

the Plaintiff was terminated from his employment at

Southwestern Bell.

DISCUSSION

The Plaintiff alleges that he was_ intentionally

discriminated against in violation of the Americans with

Disabilities Act (ADA). He alse alleges that he suffered

retaliation in the workplace and was _ ultimately

discharged as a result of his filing and EEOC compliant

in 1996.

A. ADA Claim

In his Americans with Disabilities Act claim, the

Plaintiff states that he was discriminated against at

work and was terminated due to his insulin-dependant

diabetes. In order to make out a claim of discrimination

under the ADA, a plaintiff may either present direct

evidence or utilize the indirect method of proof

propounded in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Under the latter approach, a prima

facie case of intentional discriminaticn is established by

showing: (1) the plaintiff suffers from a disability; (2)

the plaintiff was qualified for his or her job; (3) the

plaintiff was subjected to an adverse employment

action; and (4) the plaintiff was replaced by a non-

disabled person or was treated less favorable than non-

disabled employees. See Seaman v. CSPH, Inc., 179

F.3d 297, 300 (5th Cir. 1999).

In his response to the Defendant’s Motion for Summary

Judgment, as well as the hearing on March 27, 2003, the

Plaintiff conceded that his ADA cause of action

18a

probably could not survive summary judgment under

the current state of the law. Pl.’s Mem. Opp’n. Def.’s

Mot. Summ. J. at 13-1; see Murphy v. United Parcel

Service Inc., 527 U.S. 516 (1999); Sutton v. United Air

Lines, Inc., 527 U.S. 471 (1999). Accordingly, the Court

finds that there is no genuine issue of material fact as to

this claim.

B. Retaliation Claim

The Plaintiff alleges that he was retaliated against in

response to the EEOC complaint he filed in 1996. More

specifically, the Plaintiff claims (1) that he was treated

differently from other employees at work subsequent to

the filing of the EEOC complaint, and (2) that his

eventual termination was also due to the filing of the

complaint.

In order to make out a prima facie case of retaliation,

the Plaintiff must show that: (1) .he engaged in a

protected activity; (2) he suffered an adverse

employment action; and (3) a casual connection existed

between the protected activity and the adverse

employment action. Seaman, 179 F.3d at 301. Once a

prima facie case is established, the Defendant must

come forward with a legitimate, non-discriminatory

reason for the adverse employment action. Id. At that

point, the burden shifts back to the Plaintiff to produce

sufficient evidence that the Defendant’s proferred

reason is merely a pretext for retaliation. Id.

In this case, the Court need not decide whether the

Plaintiff has established ‘a prima facie case of

retaliation, because he has not produced sufficient

evidence that the Defendant’s legitimate, non-

Te ee ee ee —

19a

discriminatory reason for any of its actions, including

firing him, was pretextual. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). The

Defendant asserts that the Plaintiff was terminated

because of his poor job performance and history of

customer complaints. A mere scintilla of evidence of

pretext will not create an issue of material fact in all

cases. Crawford v. Formosa Plastics Corp., 234 F.3d

899, 903 (5th Cir. 2000). Thus, to satisfy his burden to

show pretext, a plaintiff's evidence that the proferred

reason is unworthy of credence must be enough to

support a reasonable inference that the proferred

reason is false; a mere shadow of a doubt is insufficient.

Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400,

403 (5th Cir. 2001)(citation omitted). The Fifth Circuit

has held that “an employee’s subjective belief of

discrimination alone is not sufficient to warrant judicial

relief.” Id.

Even assuming that the Plaintiff has set forth a prima

facie claim of retaliation, the Court finds that there is

no genuine issue as to material fact that the

Defendant’s proferred reason for its adverse

employment action(s) towards Mr. Arrington was a

pretext for retaliatory conduct. The Plaintiff's work

history is well-documented in the summary judgment

evidence, and it is clear from the record that the

Plaintiff was reprimanded several times for his poor

work performance. The Plaintiff has not produced

substantial evidence that this proferred reason for

termination — poor work performance - was a pretext

for retaliation, as required by the McDonnell Douglas

burden-shifting framework. Rather, he has merely

asserted in a conclusory fashion that the various

complaints filed against him were solicited by the

20a

company. The Court also finds unpersuasive the

Plaintiff's arguments that similarly situated employees

of Southwestern Bell were treated differently from him

for nearly identical misconduct. Accordingly, the Court

concludes that the Defendant is entitled to judgment as

a matter of law on the Plaintiffs retaliation claims as

well.

CONCLUSION

For the reasons mentioned above, the Court is of the

opinion that there is no genuine issue as to material fact

warranting a trial in this cause. Accordingly,

It is ORDERED that the Defendant’s Motion for

Summary Judgment is hereby GRANTED.

Signed this 11th day of May, 2008.

ROBERT JUNELL ‘

UNITED STATES DISTRICT JUDGE

Zila

UNITED STATES CODE SERVICE

Inc., one of the LEXIS Publishing (TM) companies

*** CURRENT THROUGH P.L. 228,

APPROVED 5/18/04 ***

TITLE 42. THE PUBLIC HEALTH

AND WELFARE

~ CHAPTER 126. EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES

EMPLOYMENT

GO TO CODE ARCHIVE DIRECTORY

FOR THIS JURISDICTION

42 USCS § 12112 (2004)

§ 12112. Discrimination

(a) General rule. No covered entity shall discriminate

against a qualified individual with a disability because

of the disability of such individual in regard to job

application procedures, the hiring, advancemenit, or

discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment.

(b) Construction. As used in subsection (a), the term

“discriminate” includes--

(1) limiting, segregating, or classifying a job applicant

or employee in a way that adversely affects the

opportunities or status of such applicant or employee

because of the disability of such applicant or employee;

22a

(2) _ 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 the discrimination

prohibited by this title (such relationship includes a

relationship with an employment or referral agency,

labor union, an organization providing fringe benefits to

an employee of the covered entity, or an organization

providing training and apprenticeship programs);

(3) utilizing standards, criteria, or methods of

administration--

(A) that have the effect of discrimination on the

basis of disability; or

(B) that perpetuate the discrimination of others who

are subject to common administrative control;

(4) excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the known

disability of an individual with whom the qualified

individual is known to have a relationship or

association;

(5) (A) not making reasonable accommodations to the

known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant

or employee, unless such covered entity can

demonstrate that the accommodation would impose an

undue hardship on the operation of the business of such

covered entity; or

(B) denying employment opportunities to a job

applicant or employee who is an otherwise qualified

individual with a disability, if such denial is based on

the need of such covered entity to make reasonable

accommodation to the physical or mental impairments

of the employee or applicant;

(6) using qualification standards, employment tests or

other selection criteria that screen out or tend to screen

23a

out an individual with a disability or a class of

individuals with disabilities unless the standard, test or

other selection criteria, as used by the covered entity, is

shown to be job-related for the position in question and

is consistent with business necessity; and

(7) failing to select and administer tests concerning

employment in the most effective manner to ensure

that, when such test is administered to a job applicant

or employee who has a disability that impairs sensory,

manual, or speaking skills, such test results accurately

reflect the skills, aptitude, or whatever other factor of

such applicant or employee that such test purports to

measure, rather than reflecting the impaired sensory,

manual, or speaking skills of such employee or applicant

(except where such skills are the factors that the test

purports to measure).

(1) In general. It shall not be unlawful under this

section for a covered entity to take any action that

constitutes discrimination under this section with

respect to an employee in a workplace in a foreign

country if compliance with this section would cause

such covered entity to violate the law of the foreign

country in which such workplace is located.

(2) Control of corporation.

(A) Presumption. If an employer controls a

corporation whose place of incorporation is a foreign

country, any practice that constitutes discrimination

under this section and is engaged in by such corporation

shall be presumed to be engaged in by such employer.

(B) Exception. This section shall not apply with

respect to the foreign operations of an employer that is

a foreign person not controlled by an American

employer.

24a

the determination of whether an employer controls a

corporation shall be based on--

(i) the interrelation of operations;

(ii) the common management;

(iii) the centralized control of labor relations; and

(iv) the common ownership or financial control,

of the employer and the corporation.

(d) Medical examinations and inquiries.

(1) In general. The prohibition against discrimination

as referred to in subsection (a) shall include medical

examinations and inquiries.

(2) Preemployment.

(A) Prohibited examination or inquiry. Except as

provided in paragraph (3), a covered entity shall not

conduct a medical examination or make inquiries of a

job applicant as to whether such applicant is an

individual with a disability or as to the nature or

severity of such disability.

(B) Acceptable inquiry. A covered entity may make

preemployment inquiries into the ability of an applicant

to perform job-related functions.

(3) Employment entrance examination. A covered

entity may require a medical examination after an offer

of employment has been made ‘to a job applicant and

prior to the commencement of the employment duties of

such applicant, and may condition an offer of

employment on the results of such examination, if--

(A) all entering employees are subjected to such an

examination regardless of disability;

(B) information obtained regarding the medical

condition or history of the applicant is collected and

maintained on separate forms and in separate medical

25a

files and is treated as a confidential medical record,

except that--

(i) supervisors and managers may be informed

regarding necessary restrictions on the work or duties

of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed,

when appropriate, if the disability might require

emergency treatment; and

(iii) government officials investigating compliance

with this Act shall be provided relevant information on

request; and

accordance with this title.

(4) Examination and inquiry.

(A) Prohibited examinations and inquiries. A

covered entity shall not require a medical examination

and shall not make inquiries of an employee as to

whether such employee is an individual with a disability

or as to the nature or severity of the disability, unless

such examination or inquiry is shown to be job-related

and consistent with business necessity.

(B) Acceptable examinations and inquiries. A

covered entity may conduct voluntary medical

examinations, including voluntary medical histories,

which are part of an employee health program available

to employees at that work site. A covered entity may

make inquiries into the ability of an employee to

perform job-related functions.

subparagraph (B) regarding the medical condition or

history of any employee are subject to the

requirements of subparagraphs (B) and (C) of

paragraph (3).

26a

HISTORY: (July 26, 1990, P.L. 101-336, Title I, § 102,

104 Stat. 331; Nov. 21, 1991, P.L. 102-166, Title I, §

109(b)(2), 105 Stat. 1077.)

eee eee ee tee 4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.