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,