Opinion
Civil Action No. 6: 02-CV-049-C.
July 25, 2003.
ORDER
On this date the Court considered Defendant's Motion for Summary Judgment filed May 15, 2003, by Minnesota Mining and Manufacturing Company ("Defendant"). Plaintiff's Response to Defendant's Motion for Summary Judgment was filed June 17, 2003, by Cathy Baxter ("Plaintiff"). Defendant's Brief in Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment was filed July 2, 2003. After considering all the relevant arguments and evidence, the Court GRANTS Defendant's Motion for Summary Judgment.
On this date the Court concurrently considered Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence filed July 2, 2003. Plaintiff's Response to Defendant's Motion to Strike Summary Judgment Evidence was filed July 22, 2003. After considering all the relevant arguments and evidence, the Court DENIES as moot Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence.
I. FACTUAL BACKGROUND
Plaintiff was employed by Defendant in June 1995 as a die cutter in Defendant's Brownwood, Texas, plant. Beginning in 2000, Plaintiff claims that she began to experience pain and fatigue in the operation of the machines at the plant. From September 22, 2000, through December 4, 2000, Plaintiff took medical leave under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq. Upon her return to work, Plaintiff informed her immediate supervisor that she had been diagnosed with rheumatoid arthritis. Thereafter, Plaintiff alleges that, based on Defendant's mistaken perception that Plaintiff would no longer be able to perform her job, she (1) experienced harassment and heightened pressure from Defendant; (2) was assigned onerous duties which required heavy lifting not required of other employees; and (3) was targeted for intensified disciplinary action. Plaintiff complains that she was ultimately terminated based on a contrived breach of Defendant's attendance policy.
Defendant claims that Plaintiff was terminated because Plaintiff had accumulated excessive absence occurrences and had exceeded the plant objective of three percent absenteeism in violation of Defendant's "Absence Control Program" ("ACP"). The ACP provides that the performance correction process begins when the employee exceeds the plant objective, which is no more than four absence occurrences and/or less than 97% "presenteeism."
Here, Defendant asserts that Plaintiff had accumulated one sickness incident and four "other paid absence" ("OPA") incidents. Therefore, pursuant to the ACP, on January 5, 2001, Defendant issued to Plaintiff a Phase I warning for excessive absences.
The Phase I warning included the following "expectations":
The duration of Phase I will be 6 months. During Phase I of Performance Correction, you must not have an occurrence that meets or exceed, the plant objective,
You must adhere to the conditions of the Performance Correction plan. If you have an occurrence during this time, or you do not adhere to the condition[s] of the Performance Correction plan and the [ACP], then you will be placed on Phase II of Performance Correction,
While in Phase I of Performance Correction, call your supervisor daily when you are absent and provide documentation to the plant nurse from a physician verifying the reason for absence.
The Phase I warning also provided that Plaintiff's failure to meet the above expectations would result in further disciplinary action, up to and including termination of Plaintiff's employment.
On January 25, 2001, only three weeks after Plaintiff received the Phase I warning, Defendant claims that Plaintiff missed a full day of work. Because Plaintiff's absence constituted an occurrence in violation of the Phase I Performance Correction expectations, Plaintiff was issued a Phase II warning on February 2, 2001.
The Phase II warning included the following expectations:
The duration of Phase II will be 6 months. During Phase I of Performance Correction, you must not have an occurrence that meets or exceeds the plant objective and your attendance can not [sic] drop another 3%.
You must adhere to the conditions of the Performance Correction plan. If you have 2 occurrences during this time, or you do not adhere to the condition of the Performance Correction plan and the [ACP], then you will be placed on Phase III of Performance Correction.
While in Phase II of Performance Correction, call your supervisor daily when you are absent and provide documentation to the plant nurse from a physician verifying the reason for absence.
Phase II also provided that Plaintiff's failure to comply with the expectations outlined above would subject Plaintiff to further disciplinary action, up to and including termination of Plaintiff's employment.
On March 6, 2001, approximately one month after Plaintiff received the Phase II warning, Defendant charges that Plaintiff failed to arrive at the start of her shift and failed to call in, which constitutes an "AWOL" under Defendant's ACP. Because the AWOL violated the Phase II correction plan, Plaintiff's plan was escalated to Phase III. The ACP provides that "[i]n Phase III performance correction, the employee's situation will be reviewed by the plant's Disciplinary Committee ("Committee") and will take appropriate disciplinary action." The Committee decided to discharge Plaintiff based on Plaintiff's employment history and current failure to adhere to Defendant's ACP and written warnings. Defendant denies that Plaintiff's health was a topic of discussion during the Committee's review or that Plaintiff's health or alleged "perceived disability" was a factor in the decisionmaking process. On March 8, 2001, Plaintiff was discharged.
Based on Defendant's discriminatory misperception that Plaintiff was disabled, Plaintiff seeks compensation for loss of salary and other benefits; compensation for humiliation, damage to reputation, mental and emotional distress, and pain and suffering; punitive damages; preliminary and permanent injunctive relief directing Defendant to reinstate Plaintiff to her former position; prejudgment and postjudgment interest on all damages; reasonable costs and attorney's fees; and such other relief as this Court deems just.
II. PROCEDURAL BACKGROUND
Plaintiff's Original Complaint was tiled June 26, 2002, and, with leave of this Court, Defendant's First Amended Answer was filed January 15, 2003.
Defendant's Motion for Summary Judgment was filed May 15, 2003, and Plaintiff's Response to Defendant's Motion for Summary Judgment was filed June 17, 2003. Defendant's Brief in Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment was filed July 2, 2003.
Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence was filed July 2, 2003. Plaintiff's Response to Defendant's Motion to Strike Summary Judgment Evidence was filed July 22, 2003.
A jury trial is set for this matter on September 15, 2003.
III. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255.
Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. Civ. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recite, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
IV. DISCUSSION
Plaintiff claims that after she informed Defendant in December 2000 that she had been diagnosed with rheumatoid arthritis, Defendant targeted Plaintiff for intensified disciplinary actions in an effort to displace Plaintiff. Plaintiff claims that Defendant ultimately terminated Plaintiff's employment on March 8, 2001, based on Defendant's misperception that Plaintiff bad a disability and could no longer do the work required of her, all in violation of the Americans with Disabilities Act ("ADA").To the contrary, Defendant claims that Plaintiff was discharged for excessive absences in violation of Defendant's ACP. Defendant contends that Plaintiff received training on Defendant's ACP and acknowledged that repeated attendance infractions would lead to progressive discipline which could ultimately result in termination. Additionally, Defendant argues that Plaintiff failed to timely file her charge of discrimination and, because equitable tolling is not applicable in this instance, Plaintiff's claims are barred as a matter of law. Finally, Defendant argues that Plaintiff cannot make a prima facie showing of an ADA claim of discrimination or retaliation and that summary judgment is appropriate because Plaintiff was discharged for a legitimate, nondiscriminatory reason.
Equitable Tolling
Plaintiff does not dispute that her charge of discrimination was untimely filed but argues that equitable tolling is appropriate, because the Equal Employment Opportunity Commission ("EBOC") gave her "misdirected advice" and engaged in "gross delay" when processing her charge of discrimination. Defendant argues, however, that Plaintiff cannot establish that the EEOC actively misled her or that she was given information that was affirmatively wrong. Therefore, Defendant argues that Plaintiff's claims are barred as a matter of law.
"Under the ADA, a plaintiff must file a charge of discrimination within 300 days of the alleged discriminatory act." Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002), However, "the limitations period on filing a charge of employment discrimination `is subject to equitable doctrines such as tolling or estoppel'" Id. at 183 (citation omitted). The Supreme Court "has made clear, however, that these equitable doctrines `are to be applied sparingly.'" Id. In like fashion, the Fifth Circuit has found that "equitable tolling may be appropriate when `the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Id. Equitable tolling applies if the EEOC has misled a plaintiff about the "nature of his rights." Manning v. Chevron Chem. Co., L.L.C., No. 01-41222, 2003 U.S. App, LEXIS 11679, at *15-16 (5th Cir. June 13, 2003).
Plaintiff has the burden of establishing that equitable tolling is applicable to her case. Blumberg v. HCA Mgmt. Co., Inc., 848 F.2d 642, 644 (5th Cir. 1988) (determining "[i]f the complaint is not filed within 300 days, the plaintiff has the burden of demonstrating a factual basis to toll the period"). "Plaintiff must produce sufficient evidence to demonstrate that [s]he was misled by . . . the EEOC." Ramirez, 312 F.3d at 183. "It is not sufficient for [Plaintiff] to show that the EEOC failed to give [her] some relevant information; [she] must demonstrate that the EEOC gave [her] information that was affirmatively wrong." Id. See also Conaway v. Control Data Corp., 955 F.2d 358, 363 (5th Cir. 1992) (holding that "an accurate, but incomplete, oral statement by the EEOC'" is not a basis for equitable tolling).
According to Plaintiff, the EEOC misled her about the nature of her rights. Plaintiff claims that the EEOC intake officer told her she could not make a claim under the ADA because she was not disabled. Rather, Plaintiff alleges that the intake officer said Plaintiff should file a charge on the basis of sex discrimination, which Plaintiff did on March 8, 2001. The EEOC subsequently dismissed that charge and issued a Notice of Right to Sue.
Assuming arguendo that Plaintiff was initially misled by the EEOC, this Court nevertheless finds that any misconceptions Plaintiff may initially have had with regard to the nature of her rights were dispelled at least two months prior to the expiration of the 300-day advice or engaged in gross delay, the record before the Court includes a November 2, 2001, letter from Plaintiff's attorney to the EEOC acknowledging the 300-day limitations period within which to amend Plaintiff's previous charge or file a new charge based on perceived disability.
Here, to timely file her charge of discrimination based on perceived disability, Plaintiff must have filed her charge with the EEOC on or before January 2, 2002. Therefore, this Court finds that Plaintiff had ample opportunity between November 2, 2001, and January 2, 2002, to effect a timely filing of her claim of perceived disability. This Court is of the opinion that Plaintiff cannot now be heard to complain that her untimeliness was attributable to the EEOC's initially incorrect information, gross delay, or Plaintiff's own lack of understanding of the nature of her rights. It appears obvious to this Court that the nature of Plaintiff's rights was well known to Plaintiff by at least November 2, 2001.
Therefore, this Court finds that Plaintiff has not established a factual basis to toll the limitations period or that Plaintiff was "prevented in some extraordinary way from asserting [her] rights." Ramirez, 312 F.3d at 181. Consequently, because this Court finds that Plaintiff has failed to carry her burden of establishing that equitable tolling is applicable, this Court finds that Plaintiff's claims are barred as a matter of law and that summary judgment is appropriate.
Because the inapplicability of equitable tolling to Plaintiff's untimely filed charge of discrimination is, in and of itself, sufficient to grant Defendant's Motion for Summary Judgment, the Court need not address the merits of the remaining arguments raised by the parties.
CONCLUSION
After considering all the relevant arguments and evidence, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES as moot Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence.