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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 815

## Text

. “Supreme Court, U.S
(i) FILE?

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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1
QUESTION PRESENTED FOR REVIEW

(1) | Whether the Trial Court erred in granting
the Defendant’s Motion for Summary
Judgment.

ii
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

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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,

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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

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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.

2
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

3
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).

4
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

5

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

6

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:

7

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.

8

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.

-

9
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

10

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

11

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

12

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

13

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).

14

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

15

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

a

17

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

la
(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

We

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. —

2a
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

3a

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.

4a

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).

5a
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

(C) being regarded as having such an impairment .

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

6a

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

Ta

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):

8a

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

9a

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
Copyright © 2004 Matthew Bender & Company,
Inc., one of the LEXIS Publishing (TM) companies
All rights reserved

*** 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

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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).

(c) Covered entities in foreign countries.

(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.

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(C) Determination. For purposes of this paragraph,
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

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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

(C) the results of such examination are used only in
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.

(C) Requirement. Information obtained under
subparagraph (B) regarding the medical condition or
history of any employee are subject to the
requirements of subparagraphs (B) and (C) of
paragraph (3).

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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.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1724%3A1. Public record. Not legal advice.