Opinion
Case No. 01-9016-CIV-MOORE
March 18, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court upon Defendant Home Quality Management, Inc.'s Motion for Summary Judgment (DE #127) and Plaintiff Garland Cline's Motion for Leave to Amend his response to the summary judgment motion submitted by HQM (DE #174).
UPON CONSIDERATION of the motions, and being otherwise fully advised in the premises, the Court enters the following Order granting Defendant's motion and denying Plaintiffs motion.
I. BACKGROUND
Plaintiff Garland Cline, a former assisted living center administrator now stricken with AIDS, brings this action against Defendant Home Quality Management, Inc. ("HQM"), his former employer, for discrimination in violation of the American with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), on the basis of the perception of disability (count 1) discrimination under the ADA for failure to accommodate (count II); violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq ("PMLA") (count III); violations of the Employee Retirement Income Security Act. 29 U.S.C. § 1001 et seq. ("ERISA") on the basis of denial of welfare and pension benefits against HQM (counts IV VII); and a state law claim of fraud in the inducement of procuring Cline's services (count VIII).
On December 16. 2002, David Baumgartner, HQM's Vice President of Benefits and Risk Management and Elizabeth Fago, HQM's Chairman, were voluntarily dismissed from this action. (DE # 105.) Accordingly, counts V and VI of Cline's second amended complaint are dismissed.
HQM, an owner and manager of nursing homes and assisted living centers, employed Cline at Sutton Place, an assisted living facility in Lake Worth, Florida, from November 1, 1999 to April 28, 2000. From 1996 to November 1999, Cline worked in the same position as administrator of Sutton Place, but under the management and ownership of Genesis Health Care Ventures. In January 2000, Cline began to experience health problems. On or about February 4, 2000, Cline took sick leave from Sutton Place. On February 14, 2000, Cline was diagnosed for the first time with AIDS. On March 28.2000, Dr. Don Fisher, Cline's physician at the time, confirmed that Cline had Kaposi's Sarcoma. Fisher submitted evaluations for Cline's short-term and long-term disability benefits, finding that Cline was disabled and unable to work. HQM paid Cline during the first month of his leave. HQM terminated Cline's employment on April 28, 2000. It is disputed whether HQM or its management knew of Cline's failing medical condition.
II. DISCUSSION
The Court first addresses a procedural matter concerning Cline's Motion for Leave to Amend his response to the summary judgment motion submitted by HQM (DE # 174). HQM filed its motion on February 6, 2003. After receiving two extensions of time, Cline filed his original response to that motion on March 5, 2003. On March 13, 2003, HQM timely filed its reply to the response, concisely attacking the opposition's deficiencies and seemingly bringing an end to the summary judgment briefing process. One week later, however, Cline filed his motion to amend his response, accompanied by a proposed brief.
Cline asserts that grounds for amendment exist due to the need to "clarify its [sic] position on perception of disability," brief the "existence of but inapplicability to [sic] Wood v. Green, decided by the Eleventh Circuit of Appeals on March 13, 2003," and "amend and supplement references to evidence" in Cline's summary judgment filings. Cline cites no supporting authority in the motion which, again, was filed one week after HQM filed its reply.
The motion to amend is clearly a desperate attempt by Cline to address HQM's attacks on his opposition to the summary judgment motion. Disguising his efforts to avoid well established briefing protocol by setting forth the need to address the i napplicability of a recently decided case not even cited by HQM in its briefs at that time borders on the preposterous, The other grounds asserted are likewise unmoving. Accordingly, the motion to amend is denied.
1. Summary Judgment Standard
The applicable standard for reviewing a summary judgment motion is unambiguously slated in Rule 56(c)of the Federal Rules of Civil Procedure:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.
Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir. 1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). An issue of fact is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Alien v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.
In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the nonmoving party:
may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In other words, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio. 475 U.S. 574, 586 (1986). In determining whether this evidentiary threshold has been met, the trial court "must view the evidence presented through the prism of the substantive evidentiary burden 11 applicable to the particular cause of action before it. Anderson, 477 U.S. at 254. Summary judgment may be granted if the nonmovant fails to adduce evidence which, when viewed in a light most favorable to him, would support a jury finding in his favor. Id. at 254-55.
Additionally, the nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's ease, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. Id. 2. Counts 1 II; Discrimination Based on Perceived Disability and Failure to Accommodate
Cline alleges that HQM discriminated against him on the basis of his affliction with AIDS. Moreover, Cline avers, HQM violated the ADA by failing to accommodate him.
The section of Cline's response to HQM's motion for summary judgment (DE//152) addressing the ADA claims cities little authority in support of his position.
The McDonnell Douglas test is applied to disability discrimination claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of discrimination, Cline must show that he: (1) is disabled; (2) was a qualified individual who could perform the essential functions of the position, with or without reasonable accommodation; and (3) was discriminated against because of his disability. F errell v. USAir, 132 F.3d 621, 624 (11th Cir. 1998). In addition, Cline must show that HQM had actual or constructive knowledge of the disability. Gordon v. EL Hamm Assocs., Inc., 100 F.3d 907, 910 (11th Cir. 1996).
As to the first prong, the ADA defines a disability as: (1)a physical or mental impairment that substantially limits one or more major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such impairment. 42 U.S.C. § 12102(2). An individual is "regarded as" disabled if the employer erroneously believed either: "(1) that a person has a physical impairment that substantially limits one or more major life activities, or (2) . . . that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (2000). For purposes of summary judgment analysis, Cline is disabled under the statute and the first requirement for his disability discrimination claim is satisfied.
Cline, however, fails the second prong of the test, as he is not "qualified." A qualified individual is defined as "an individual with a disability who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m). Here, Cline is not a qualified individual because he simply could not be present to work.
The record is replete with medical evaluations establishing Cline's inability to return to work. For example, in a claim for short-term disability benefits, apparently dated February 25, 2000, Dr. Don Fisher, a physician, found that Cline was "temporarily totally disabled." (Cline Dep., Ex. 5; DE # 129 at 201.) Similarly, in One's April 11, 2000 long-term disability claim, under the section titled "RESTRICTIONS" regarding Cline's inability to work, the same physician stated "WORK — any job." Cline submitted this evaluation just three weeks before his May 1, 2000 termination date. ( Id., Ex. 6; DE //129 at 203-04.) According to his physician's evaluations. Cline cannot reasonably be found to have been qualified to work as an administrator at Sutton Place,
Cline's attempts to create factual disputes are unavailing. The fact that Cline stated that his attorney submitted these claims on his behalf, as opposed to him personally, does not change this conclusion. In addition, the April 28, 2000 letter from Dr. Dennis Liston. Cline's psychiatrist, asserting that Cline could return to work, does not create a material fact dispute. First, Liston treated Cline for psychiatric issues, while Fisher served as Cline's medical doctor. Second, Liston admitted under oath that he only wrote the letter because Cline asked him, and did not do so based on his psychiatric examination. (D.'s Statement of Undisputed Facts, Ex. F; DE #128 at 221.) Finally, Cline's offering of an expert medical opinion prepared for this litigation concluding that he was "medically capable of returning to work on or before May 4, 2000" (Pl.'s Resp. to D.'s Statement of Undisputed Facts, Exs. A B; DE #153 at 9-13) does nothing to change the medical opinions to the contrary that HQM had before it when making the decision to terminate Cline. See Pittman v. Moseley, Warren, Prichard Parrish, No. 3:01-CV-279-J-21TJC, 2002 WL 2007880, at *5 (M.D. Fla. July 29, 2002) (where plaintiff did not establish capability of regular attendance and sought indefinite leave of absence, she "failed to show that there is a genuine issue regarding her qualification for her job at the time she was terminated-a material fact. . . .")
Cline argues that HQM terminated him without offering a reasonable accommodation. A reasonable accommodation is one "which presently, or in the near future, enable[s] the employee to perform the essential functions of his job." Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169(10th Cir. 1996); 29 C.F.R. § 1630.2(b)(1)(ii). It is part of the employee's burden of production to identify a reasonable accommodation. Willis v. Conopco, Inc., 108 F.3d 282, 283 (11th Cir. 1997) (per curiam). Cline has failed to do so.
Cline asserts that he did not have the chance to request an accommodation because HQM fired him just days after receiving his request for an extended leave of absence. However, that request was actually one for an accommodation, albeit an unreasonable one. The April 26, 2000 letter clearly states: "1 am requesting disability leave of absence per page 30 of the Corporate's Employee Handbook. Additional time is needed for maximum medical improvement. I am requesting this as accomodation |sic| under the American Disability Act of 1992." Cline Dep., Ex. 17; DE #129 at 314.) An indefinite leave of absence, as sought by Cline, is not a reasonable accommodation under the ADA. Hilburn v. Murata Elecs. N. Am., 181 F.3d 1220, 1231 (11th Cir. 1999). "Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise." Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994) (internal quotations omitted); see also Allen v. GTE Mobile Comms. Serv. Corp., No, 1:95-cv-463-MHS, 1997 WL 148670 (N.D. Ga. Feb. 26, 1997) ("It is well-settled that presence at the job site is an essential function of most jobs."). Aside from blanket assertions that his attendance at Sutton Place was not necessary to effectively perform his job duties, Cline has not presented evidence that an inconsistent or nonexistent presence at the workplace would allow the execution of his duties as administrator at Sutton Place or otherwise be reasonable.
HQM provided Cline with the mandatory twelve weeks of leave, as discussed in section II(3), infra. Submitted at the expiration of this twelve week period, Cline's request for an extended leave of absence, along with other record evidence indicating his inability to work, establish that Cline was not a qualified individual who could perform the essential functions of the administrator position at Sutton Place, with or without a reasonable accommodation. While some courts have required an employer to engage in an informal interactive process with the employee to evaluate possible accommodations- 29 C.F.R. § 1630.2(b)(3) suggests that it may be necessary for the employer to initiate this process-a discrimination claim nonetheless fails where the employee has not established a reasonable accommodation. Willis, 108 F.3d at 285 ("Even assuming an employer has an affirmative obligation-absent an employee's suggestion for a specific accommodation-to engage in the interactive process . . . where a plaintiff cannot demonstrate `reasonable accommodation,' the employer's lack of investigation into reasonable accommodation is unimportant."); Moses v, Am. Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir. 1996) ("[Defendant]'s failure to investigate did not relieve [Plaintiff] of his burden of producing probative evidence that reasonable accommodations were available."). Accordingly, counts I and II, alleging discrimination based on perceived disability and failure to accommodate, are dismissed with prejudice.
3. Count III: FMLA Violation
The FMLA requires employers to provide eligible employees up to twelve workweeks of unpaid leave during any twelve month period where a serious health condition renders an employee unable to perform the functions of his position and to reinstate an employee upon his return from FMLA leave. 29 U.S.C. § 2612. Cline alleges that HQM interfered with his FMLA rights by refusing to reinstate him upon expiration of his leave and illegally discriminated against him when it terminated him in alleged retaliation of his assertion of FMLA rights. To state a prima facie FMLA claim, Cline must show that: (1) he availed himself of a FMLA-protected right; (2) an employment decision adversely affected him; and (3) a causal connection exists between the protected right and the adverse employment decision. Parris v. Miami Herald Pub Co. 216 F.3d 1298 (11th Cir. 2000).
Although Graham v State Farm Mutual Ins Co. 193 F.3d 1274, 1283 (11th Cir. 1999). explicitly added a fourth requirement to the test-that the employee he qualified for the position at the time of the adverse employment action it appears that the first prong, regarding an FMLA-protected right, already requires that the employee he qualified by virtue of 29 C.F.R. § 825.214, discussed below.
Cline has not established that an FMLA-protected right is at issue. The regulation governing an employee's rights upon return from FMLA leave provides in part:
(a) On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. See also § 825.106(e) for the obligations of joint employers.
(b) If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA.29 C.F.R. § 825.214. HQM afforded Cline his full twelve weeks of unpaid leave. Cline's leave began on February 4, 2000 and expired on April 28, 2000. HQM denied Cline's request to extend or recalculate Cline's leave based on the clear evidence that he would be unable to work for an indefinite period. Because no genuine issue of material fact exists regarding Cline's inability to perform essential functions of the administrator position at Sutton Place upon the end of his FMLA leave, Cline cannot establish an FMLA violation as a matter of law. Alfiano v. Merck Co, Inc. 175 F. Supp.2d 792, 795 (E.D. Pa. 2001) (holding that because plaintiff was not qualified for job, she failed to prove FMLA-protected right).
For a factual discussion regarding Cline's work capability, see section I(2), Supra While 29 C.F.R. § 825.702 specifies that analysis of FMLA claims is separate from review of ADA claims, the facts discussed in the Court's ADA "qualified individual" determination are applicable to whether Cline could perform an essential function of his job as administrator and do not bear repealing in this section.
The law required HQM to do nothing more than provide Cline the twelve weeks of unpaid leave and reinstate him if his condition allowed him to return. HQM has complied. Accordingly, count III is dismissed with prejudice,'For a factual discussion regarding Cline's work capability, see section I(2), Supra While 29 C.F.R. § 825.702 specifies that analysis of FMLA claims is separate from review of ADA claims, the facts discussed in the Court's ADA "qualified individual" determination are applicable to whether Cline could perform an essential function of his job as administrator and do not bear repealing in this section. 4. Counts IV VII: ERISA Violations
The December 16, 2002 voluntary dismissal of Baumgartner and Fago as individual defendants did not technically dismiss Baumgartner in his capacity as plan administrator. However, due to the absence of discussion of any claim against Baumgartner in his official capacity in the summary judgment filings, it appears that he is no longer a defendant in any capacity. Nonetheless, to the extent he remains as a defendant, the following discussion of the ERISA claims pertains to both HQM and Baumgartner in his capacity as plan administrator.
HQM allegedly violated ERISA by denying Cline health, disability, life insurance and pension benefits, and by failing to provide any information regarding HQM's insurance plans. First and foremost, HQM did not deny any benefits to Cline. Indeed, in his deposition testimony, Cline stated his total out of pocket expenses amounted to "stress and emotional duress." (Cline Dep. at 233; DE #129 at 89.) His ERISA claims are therefore without footing. Moreover, his claim based on HQM's failure to provide requested documents regarding benefits is unsupported by the record.
Cline fails to cite a single case in support of his ERISA claims.
Even if HQM did deny Cline benefits, his ERISA claims are barred for failure to exhaust administrative remedies. Counts v. Am. Gen. Life Accident Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997). In this case, those remedies involved filing a loss of benefits claim with the insurance provider, which Cline has not done. The insurance policies clearly set forth these procedures. (See Cline Dep., Exs. 11, 12; DE #129 at 251, 266.)
HQM argues that Cline's short-term disability policy, like his other insurance policies, required appeal to the insurance provider. However, that exhibit to Cline's deposition is incomplete in the record. Cline Dep., Ex. 10; DE II 210-17.) Because Cline does not contest that the policy required filing a claim with the provider, the absence of that particular policy page from the record does not prevent summary judgment on these claims.
However, the exhaustion requirement may be excused "when resort to administrative remedies would be futile or the remedy inadequate." Id. While, when viewing the facts in the light most favorable to Cline, HQM may not have performed as a model employer in organizing its responses to Cline's alleged requests for information about his benefits, there is no evidence, beyond Cline's speculation, that an attempt to file a claim with the insurance provider would have been futile. Cline filed claims for short-term and long-term disability benefits, as well as other coverage-all of which he received-thus supporting the conclusion that he knew where he could turn for relief had he in fact been denied benefits.
Moreover, to bring an end to Cline's haphazard ERISA claims, Cline testified at his deposition that it did not appear to him that he participated in any HQM pension benefit plan. Moreover, no evidence supports such participation, Dismissing counts IV and VII, alleging failure to provide pension benefits, is thus axiomatic, notwithstanding his unsupported assertion that HQM promised to enroll him in a plan.
5. Count VIII: Fraud in the Inducement
Cline's claim for fraud in the inducement is likewise lacking. In his opposition to summary judgment, Cline's sole argument for this cause of action is that he "needs insurance information . . . to adequately support this [claim]." The stage at which an opposition to summary judgment is filed is well past the time to engage in discovery to support claims alleged in one's complaint. Accordingly, Count VIII is dismissed with prejudice.
III. CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED that Defendant Home Quality Management, Inc.'s Motion for Summary Judgment (DE //127) is GRANTED. Cline's Motion for Leave to Amend his response to the summary judgment motion submitted by HQM (DE # 174) is DENIED. The Clerk of Court is directed to CLOSE this case. All pending motions not otherwise ruled upon are DENIED AS MOOT.
DONEL AND ORDERED in chambers at Miami, Florida.