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United States District Court, E.D. Louisiana

November 5, 2004.


The opinion of the court was delivered by: JAY C. ZAINEY, Senior District Judge


Before the Court is a Motion for Summary Judgment (Rec. Doc. 31), and a Motion to Strike Inadmissible Evidence (Rec. Doc. 37) filed by defendant Northrop Grumman Ship Systems, Inc. ("NGSS") (formerly Avondale Industries, Inc.). Plaintiff, Danilo Peralta, opposes the motions. The motions, set for hearing on October 20, 2004, and October 28, 2004, respectively, are before the Court on the briefs without oral argument. For the reasons that follow, both motions are GRANTED.


  Danilo Peralta ("Peralta") began working for NGSS, then Avondale Industries, in 1990 as an outside machinist in the ship building department. Peralta alleges that on July 30, 2001, he sustained "severe personal injury" when his supervisor struck him with a metal chair. Peralta was unable to work and placed on temporary total disability.

  Peralta asserts that he attempted to return to work on August 1, 2002, and October 1, 2002, but could not be medically cleared. Peralta claims that NGSS denied him an extension of leave and later discharged him from employment. Although NGSS discharged Peralta on February 4, 2003, he had not worked since August 8, 2001. The reason cited for his termination was failure to return from a leave of absence. (Pla. Exh. 16).

  Peralta filed the instant suit and invoked a plethora of statutes as a basis for making a claim against NGSS. The gist of Peralta's claim is that NGSS discriminated against him due to his disability in violation of Title VII of the Civil Rights Act and the Americans with Disabilities Act, 29 U.S.C.A. § 621, et seq., and retaliated against him for filing the LHWCA and EEOC complaints. NGSS moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b) (6), and March 26, 2004, the Court granted in part and denied in part NGSS's motion. Although Peralta's allegations were sparse, the Court, noting that Rule 8(a) (2) requires only "a short and plain statement of the claim, dismissed all of Peralta's claims with the exception of his ADA discrimination/retaliation claims. However, the Court warned Peralta that when faced with a properly supported motion for summary judgment his claims would not survive by relying on mere conclusory allegations. (Rec. Doc. 24, at 12 n. 5). NGSS now moves for summary judgment on the remaining ADA claims.


  A. The Parties' Contentions

  NGSS argues that the undisputed facts demonstrate that Peralta's knee injury does not constitute an ADA "disability" and that Peralta is not a "qualified individual" under the ADA.

  In opposition, Peralta asserts that for purposes of this motion for summary judgment, the Court must assume that he is disabled for ADA purposes because the Department of Labor ALJ who decided his longshoreman claim ordered total disability compensation from August 9, 2001 to July 3, 2003. He also argues that his impaired knee has affected his entire life and therefore limits his major life activities. Peralta also contends that he is a qualified individual because he could perform light duty tasks.

  B. Summary Judgment Standards

  Summary judgment is appropriate when there are no genuine issues of material fact and the mover is entitled to judgment as a matter of law. Weathersby v. Saks Fifth Avenue, No. 97-1688, 1999 WL 148441, at *1 (E.D. La. 1999) (citing Fed.R. Civ. P. 56(c); Overseas Inns S.A.P.A. v. United States, 911 F.2d 1146 (5th Cir. 1990)). When the mover does not bear the burden of proof at trial, he need only show the court that there is an absence of evidence to support one or more elements essential to the non-moving party's claims. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the mover satisfies this burden, the adverse party cannot rely on argument or unsubstantiated assertions but must produce evidence demonstrating an issue for trial. Id. (citing Herrera v. Millsap, 862 F.2d 1157, 1160 (5th Cir. 1989)).

  C. Peralta's ADA Discrimination Claim

  The ADA prohibits employers from discriminating against "a qualified individual with a disability because of the disability of such individual in regard to application procedures, the hiring, advancement, or discharge of employees. . . ." 42 U.S.C.A. § 12112(a) (West 1995). To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show 1) that he is a qualified individual, 2) that he has a disability, and 3) that the negative employment action occurred because of the disability. Holtzclaw v. DSC communications Corp., 255 F.3d 254, 258 (5th Cir. 2001) (quoting Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998)). "As a threshold requirement in an ADA claim, the plaintiff, must, of course, establish that he has a disability." Waldrip v. General Electric Co., 325 F.3d 652, 654 (5th Cir. 2003) (quoting Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996)).

  The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). When determining whether a plaintiff has a "disability" for purposes of the ADA, courts have held that the central inquiry relates to "substantial limitation of major life activities, not mere impairment." Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999). Indeed, it is "permanency, not frequency" that is the "touchstone of a substantially limiting impairment." Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir. 1997). Accordingly, the Fifth Circuit has held that the effects of a variety of impairments do not constitute a substantial limitation. See, e.g., Dupre v. Charter Behavioral Health Sys. Inc., 242 F.3d 610, 614 (5th Cir. 2001) (holding that a back injury is not a substantial limit on major life activities such as sitting, working, or standing); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995) (holding that a permanent arm injury is not a substantial limit on the major life activity of working). It is clear that under the ADA not all physical limitations are substantial. Rogers, 87 F.3d at 758. A plaintiff cannot succeed on a claim under the ADA simply by establishing a physical impairment, without more. See id. Further, "major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Rogers, 87 F.3d at 758 n. 2 (quoting 29 C.F.R. § 1630.2(I) (1995)). Climbing is not a major life activity under the ADA. Id.

  Based on the evidence of record, the Court concludes that NGSS is entitled to judgment as a matter of law because Peralta does not have a disability for purposes of the ADA and he is not a qualified individual. First of all, Peralta's assertion that this Court must assume that he is disabled for purposes of the ADA is simply without merit. The ADA imposes liability upon employers for a very specific type of employment discrimination. An ADA claim is therefore fundamentally different from a claim for longshoreman workers' compensation benefits. Peralta doesn't even attempt to explain how the Department of Labor's award of disability compensation from August 9, 2001 to July 3, 2003 has any relevance to his ADA claim.

  Second, Peralta's assertion that his impaired knee has affected his entire life and therefore limits his major life activities is a new assertion that appeared for the first time in his affidavit executed on October 13, 2004 — after NGSS moved for summary judgment.*fn1 (Pla. Exh. 11). In his deposition taken just over two months ago, Peralta explained that his knee injury is his only claimed disability. (Pla. depo, Def. Exh. 6, at 28-29). He explained that he is able to walk, although not for long. (Id. at 39). He does not use crutches or a wheelchair although he does use a velcro-type wrap brace. (Id. at 39-40). Peralta is able to feed himself, bathe, dress, cook, carry small items, and drives a car although his knee bothers him when he drives. (Id. at 40-45). He admits that he drives for himself and his parents notwithstanding that his medication blurs his vision and makes him dizzy. (Id. at 45). Peralta repeatedly identified his inability to work as the only major life activity that he is now unable to do as a result of his impairment, i.e., his injured knee. (Id. at 75-77).

  To be sure, working is a major life activity but Peralta's assertion that his knee injury substantially limits his ability to work is wholly unsupported by the record. On October 31, 2004, Dr. Fernando L. Sanchez, M.D. concluded that Peralta could return to work at full duty. (Def. Exh. 2). On June 19, 2002, Dr. John Watermeier, M.D. concluded that Peralta was capable of returning to light duty with the restrictions of no repetitive bending, stooping, or climbing. (Def. Exh. 1). On that same date Dr. Watermeier opined that Peralta's prognosis was "good" and he did not anticipate any disability or permanent impairment due to his knee problems. (Def. Exh. 4). On September 25, 2002, Dr. Charles P. Murphy, M.D. concluded that Peralta could perform light duty work at that time. (Def. Exh. 5). He did believe that Peralta might require future job modifications to avoid repetitive climbing, squatting, kneeling, and heavy lifting activities. (Id.). None of the doctors' reports even remotely suggest that Peralta's ability to work has been substantially limited by any problems with his knee.

  Further, even assuming that Peralta was disabled for purposes of the ADA, he has failed to create an issue of fact as to his status as a qualified individual. A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C.A. § 12112(8). In light of Peralta's work restrictions NGSS offered Peralta light duty assignments in August and October 2002. However, when Peralta advised the medical department of the prescription medication he was taking at the time he was advised that he could not work while taking such medication. (Def. Exhs. 9 & 13). NGSS had a policy in effect, a copy of which Peralta received on September 4, 1997, that "[n]o employee will be allowed to take medication while working if it may adversely affect his/her safety or the safety of others." (Def. Exh. 10). Peralta does not deny that the medication he was taking made him dizzy and tired and blurred his vision. (Def. Exh. 6 at 58-59). Nor can he dispute the fact that the side effects of the medication created a safety risk because Peralta admitted to striking a pole with his truck and attributed this to the effects of his medication. (Id. at 45). The ADA does not require an employer to accommodate an individual if the employee would pose a direct threat to the safety of others. Robertson v. Neuromedical Ctr., 161 F.3d 292, 296 (5th Cir. 1998) (citing 42 U.S.C. § 12113(b); Turco v. Hoechst Celanese Corp., 101 F.3d 1090 (5th Cir. 1996)). Moreover, NGSS's medical department suggested that Peralta contact his physician about obtaining alternative medications but Peralta admits that he did not follow up on that. (Def. Exh.6 at 58-59). Because Peralta could not obtain medical clearance to fill either light duty position, he was not a "qualified individual."

  Assuming arguendo that the adverse effects of Peralta's medication constituted a disability for ADA purposes, a contention rejected in other sections of this Court, Wheelock v. Philip Morris, USA, No. 95-999, 1997 WL 45292, at *6 (E.D. La. Feb. 6, 1997) (McNamara, J.) (recognizing that drowsiness caused by medication lacks the duration and long-term impact required for classification as a disability), Peralta has failed to demonstrate how NGSS's decision to terminate him violated the ADA. The ADA does not require an employer to create a job that doesn't exist in order to accommodate a disabled employee. Turco, 101 F.3d at 1094 (citing Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995)). Nor does it require an employer to modify the essential functions of a given job or to reassign certain duties. Robertson, 161 F.3d at 295. Rather, "[i]t merely prohibits employment discrimination against qualified individuals with disabilities, no more and no less." Id. The specific accommodation Peralta sought in this case was an open-ended leave of absence from his job. (Def. Exh. 6, at 57). However, indefinite leave is not a reasonable accommodation that an employer must make in order to comply with the ADA. Rogers, 87 F.3d at 759. In sum, Peralta has failed to create an issue of fact that NGSS's termination of his employment violated the ADA. NGSS is entitled to judgment as a matter of law on this claim.

  D. Peralta's ADA Retaliation Claim

  Peralta also pled a claim for retaliation under the ADA. Because the Court has determined that Peralta has no claim for discrimination under the ADA, he cannot bring a claim for retaliation under the ADA. See Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 259 (5th Cir. 2001). Therefore, his claim for retaliation under the ADA is likewise dismissed.


  IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 31) filed by defendant Northrop Grumman Ship Systems, Inc. (formerly Avondale Industries, Inc.) should be and is hereby GRANTED. Plaintiff's complaint is DISMISSED;

  IT IS FURTHER ORDERED that the Motion to Strike Inadmissible Evidence (Rec. Doc. 37) filed by defendant Northrop Grumman Ship Systems, Inc. (formerly Avondale Industries, Inc.) should be and is hereby GRANTED.

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