United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT is Defendant Rush Health Systems, Inc.'s Motion  for Summary Judgment and Memorandum  in Support. Plaintiff Johnny Wheat, Jr. has filed a Response  and Memorandum  in Support and Defendant a Reply . After consideration of the parties' submissions, the record, and relevant legal authorities, the Court finds that Defendant's Motion  for Summary Judgment should be denied. Plaintiff's claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"), for disparate treatment, failure to provide a reasonable accommodation, and retaliation will proceed to trial. To the extent that Plaintiff is now, in his briefing, attempting to pursue a constructive discharge claim, this claim will not go forward because it was not pleaded in the Complaint or administratively exhausted before the Equal Employment Opportunity Commission ("EEOC").
I. FACTS AND PROCEDURAL HISTORY
Plaintiff has a hearing impairment and wears bilateral hearing aids. He was employed in various nursing positions at Rush Foundation Hospital in Meridian, Mississippi, from February 4, 2008, until August 8, 2012, when he resigned. Rush is owned by Defendant Rush Health Systems, Inc. Plaintiff alleges that Defendant discriminated against him on the basis of his hearing disability in violation of the ADA, failed to provide him a reasonable accommodation, and retaliated against him when he reported the discrimination and subsequently filed two Charges with the EEOC.
By all accounts, Plaintiff performed well during the first three years of his employment with Defendant. Plaintiff, a Registered Nurse ("RN"), was assigned to the Medical Surgery Floor as a Charge and Preceptor Nurse, a supervisory position, and then assigned to a Staff RN position in the Post-Anesthesia Care Unit. On February 6, 2011, Plaintiff accepted a position in the Orthopedic Surgery Unit as an RN Circulator. This was Plaintiff's first position in the operating room, as opposed to "on the floor." As an RN Circulator, Plaintiff assisted orthopedic surgeons during surgical procedures and prepared for procedures by performing such tasks as stocking the operating room and positioning patients.
On April 19, 2012, fourteen months after he was hired, Plaintiff was removed from his position as an RN Circulator and placed on administrative leave with pay. Defendant maintains that this occurred because Plaintiff was not performing well in his new position and posed a direct threat to patient safety. Defendant assisted Plaintiff in searching for another position with Defendant by recommending that he pursue certain jobs. Plaintiff interviewed for several jobs suggested by Defendant but did not receive any offers. A couple of positions that Defendant anticipated becoming available and suggested to Plaintiff did not become available. Defendant discussed clinic positions with Plaintiff, which paid significantly less than what Plaintiff earned as an RN Circulator but offered the work schedule Plaintiff desired. On May 1, 2012, Plaintiff accepted a clinic position in an urgent care clinic. While Plaintiff initially received the same compensation he was paid as an RN Circulator, his compensation was soon reduced by almost six dollars an hour, which was commensurate with what other clinic nurses earned. Plaintiff resigned on August 8, 2012, after learning that his compensation was being further reduced from $18.00 to $16.00 an hour. Pl.'s Dep. [45-1] 38, 137-38.
On November 13, 2012, Plaintiff filed this Complaint, asserting claims pursuant to the ADA, as amended by the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified as amended in scattered sections of 42 U.S.C.). Defendant now seeks summary judgment on all of Plaintiff's claims.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "[i]f the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A fact is material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law. An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). Where both parties have submitted evidence of contradictory facts, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see Tiblier v. Dlabel, 743 F.3d 1004, 1007 (5th Cir. 2014).
B. The Americans with Disabilities Act
"The Americans with Disabilities Act is an antidiscrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying employment opportunities available to persons without disabilities." Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). The ADA prohibits discrimination against a "qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The term "discriminate" is defined to include "not making reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability...." 42 U.S.C. § 12112(b)(5)(A). The ADA also prohibits retaliation against an individual because he has opposed an act or practice made unlawful by the ADA or engaged in protected activity, such as filing a charge with the EEOC. 42 U.S.C. § 12203(a). Plaintiff has pleaded and administratively exhausted three ADA claims: a disparate treatment claim, a reasonable accommodation claim, and a retaliation claim.
A plaintiff may prove discrimination or retaliation under the ADA through direct evidence or, alternatively, through indirect evidence using the McDonnell Douglas burden-shifting method of proof. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009). In this case, Plaintiff utilizes the McDonnell Douglas framework. Under McDonnell Douglas, a plaintiff creates a presumption of discrimination or retaliation by establishing a prima facie case. McInnis v. Alamo Cmty. College Dist., 207 F.3d 276, 279-80 (5th Cir. 2000)(ADA discrimination claim); Feist v. La. Dep't of Justice, Office of the Att'y Gen., 730 F.3d 450, 452 (5th Cir. 2013)(ADA retaliation claim). Once a plaintiff does so, the burden shifts to the defendantemployer to articulate a legitimate, nondiscriminatory or nonretaliatory reason for the adverse employment action. This causes the presumption of discrimination or retaliation to dissipate. The burden then shifts back to the plaintiff to ultimately show that the employer's proffered reason is not true but is instead pretext for discrimination or retaliation. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). "[T]o satisfy step three of the McDonnell Douglas framework, a plaintiff must put forth evidence rebutting each of the nondiscriminatory reasons the employer articulates." Jackson v. Watkins, 619 F.3d 463, 467 (5th Cir. 2010).
C. Plaintiff's ADA Disparate Treatment Claim
To establish a prima face case of disparate treatment, Plaintiff must show that: (1) he was disabled within the meaning of the ADA; (2) he was qualified and able to perform the essential functions of the job; and (3) he suffered an adverse employment action because of his disability. Neely v. PSEG Texas, Ltd. P'ship, 735 F.3d 242, 245 (5th Cir. 2013). According to Defendant, Plaintiff's disparate treatment claim cannot survive summary judgment because Plaintiff did not have a disability as defined by the ADA, he was not qualified for his position as an RN Circulator, and he did not suffer an adverse employment action. Def.'s Mem.  14-23.
1. Whether Plaintiff was Disabled
"The term disability' means, with respect to an individual - (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment (as described in paragraph (3))." 42 U.S.C. § 12102(1). The ADA expressly identifies "hearing" as a major life activity. 42 U.S.C. § 12102(2)(A). "In an ADA case, the relevant time for assessing the existence of a disability is the time of the adverse employment action." Chevron, 570 F.3d at 618. Plaintiff maintains that he suffered from a disability as defined by the ADA because he had a substantially limiting hearing impairment, and he was "regarded as" having such an impairment by Defendant.
Congress amended the ADA in 2008, and, in doing so, found that the holdings of the United States Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Manuf., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), had "narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect[.]" Pub. L. No. 110-325, September 25, 2008, 122 Stat. 3553. Congress provided that the Supreme Court's decisions had resulted in lower courts incorrectly finding "that people with a range of substantially limiting impairments are not people with disabilities." Id. The 2008 ADA as amended now directs courts to construe "[t]he definition of disability... in favor of broad coverage of individuals... to the maximum extent permitted by the terms of this chapter." 42 U.S.C. § 12102(4)(A).
The 2008 ADA Amendments became effective on January 1, 2009, and because they are not retroactive, "[m]ost recent Fifth Circuit cases have involved conduct occurring prior to the effective date of the [2008 Amendments] and have applied the pre-amendment standards." Mann v. Louisiana High Sch. Ath. Ass'n, 535 F.App'x 405, 410 n.1 (5th Cir. 2013). Because the events giving rise to this dispute occurred after January 1, 2009, the ADA Amendments apply here. The parties have directed the Court to no Fifth Circuit precedent construing and applying the new Amendments, and the Court unfortunately does not have the benefit of such guidance.
EEOC regulations addressing the amended standards for determining disability provide:
(ii) An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. ...