United States District Court, E.D. Louisiana
November 5, 2004.
AVONDALE INDUSTRIES, A DIVISION OF NORTHROP GRUMMAN SHIP SYSTEMS, INC., ET AL.
The opinion of the court was delivered by: JAY C. ZAINEY, Senior District Judge
ORDER AND REASONS
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.