Opinion
Civil No. 3:99-CV-2634-BC
January 12, 2001
MEMORANDUM OPINION AND ORDER
This is an employment discrimination case wherein Plaintiff Etta M. Dudley ("Dudley") alleges that the Defendant Dallas Independent School District ("DISD") failed to provide her with a reasonable accommodation despite her known disabilities in violation of Title I of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq. Before the Court is DISD's Motion to Dismiss for Failure to Comply With Prior Orders [Rules 16(f) and 41(b)], and alternatively, for Summary Judgment [Rule 56], filed October 30, 2000. Having reviewed the pertinent pleadings and the evidence submitted therewith, the motion is DENIED in its entirety for the reasons that follow.
The following background facts are taken from the Plaintiff's Original Complaint, filed November 19, 1999, Defendant's motion to dismiss and alternative motion for summary judgment currently before the Court, and Plaintiff's response thereto, filed December 4, 2000. Unless characterized as a contention by either party, these facts are undisputed.
Dudley suffers from the disabilities of chronic respiratory failure and asthmatic bronchitis which necessitate the use of supplemental oxygen at all times. Id. at ¶ 3. She worked for DISD as a custodial employee for over 25 years until her retirement on August 31, 2000. Id. at ¶ 3; See Def.'s Mot. to Dismiss, Alternatively for Summ. J. ("Def.'s Mot.") at 4; Pl.'s Resp. to Def.'s Mot. ("Pl.'s Resp") at 4 and Ex. 11 (Dudley Depo. 10-11).
According to Dudley, her custodial duties and the attendant exposure to various chemicals, grass, and dust aggravated her respiratory condition over the last several years. She acknowledges in her response to the instant motion that, prior to her retirement, she could no longer perform most of the essential duties of her custodial position. Pl.'s Resp. at 4. This case, however, is premised on her allegations that DISD failed to accommodate her by transferring her to other positions which she could perform. See Id. More specifically, she claims that in March of 1998, she requested a transfer to a mail room position and to a PBX operator position, but DISD failed to do so. See Id. at 6, 8. Their actions, Dudley maintains, resulted in her continued exposure to the chemicals and dust associated with her custodial duties and ultimately forced her retirement. Id. at 4, 6.
Evidence in the record identifies this job as a "CBX Operator I" position, see Pl.'s Resp., Ex. 10, but the parties refer to it as a PBX operator position. The job involved, among other things, answering incoming telephone calls and routing the caller to the appropriate personnel.
On August 23, 1999, Dudley filed her complaint with the Equal Employment Opportunity Commission ("EEOC"), in which she alleged that she had been denied a reasonable accommodation from 1997 through August 20, 1999. See Def.'s Supplement to Def's Reply, filed Jan. 9, 2001. After receiving her right-to-sue letter, she commenced this action on November 19, 1999.
On October 30, 2000, DISD filed the instant motion to dismiss, alternatively for summary judgment. They first move the Court to dismiss this case pursuant to Fed.R.Civ.P. 16(f) and Fed.R.Civ.P. 41(b), alleging that Dudley has failed to diligently prosecute this case and has otherwise failed to comply with this Court's prior orders. Def.'s Mot. at 1-4. Alternatively, DISD contends that summary judgment is proper on Dudley's reasonable accommodation claim on the grounds that she cannot demonstrate an adverse employment decision nor can she establish that she requested a reasonable accommodation under the ADA. Id. at 7-10. On December 4, 2000, Dudley filed her response. She disputes many of the factual assertions made by DISD regarding her failure to prosecute this case and her noncompliance with the Court's orders. Pl's Resp. at 1-4. Additionally, although she has not amended her complaint or sought leave to do so, Dudley accuses DISD of subjecting her to harassment and retaliation for filing this lawsuit. Id. at 4-6, 8. On December 28, 2000, DISD filed its reply, arguing for the first time, that Dudley's reasonable accommodation claim is barred because her EEOC complaint was untimely, and that she cannot establish any compensable damages under the ADA. Id. at 4-6, 8-10.
Before turning to the merits of DISD's motion, the Court will review the summary judgment standards governing its analysis.
II. Summary Judgment Standards
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp ., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986) . Only disputes about those facts will preclude the granting of summary judgment. Id . In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990) . If the non-movant bears the burden of proof at trial, the movant for summary judgment need not support the motion with evidence negating the opponent's case; rather the movant may satisfy its burden by showing that there is an absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075 .
Once the movant makes this showing, the burden shifts to the non-movant to show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54 (1986)) . "This burden is not satisfied with `some metaphysical doubt as to the material facts,'. . . by `conclusory allegations,'. . . by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Rather, the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting FED. R. Civ. P. 56(e)).
In determining whether a genuine issue for trial exists, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. Munoz v. Orr , 200 F.3d 291, 302 (5th Cir. 2000); Anderson, 477 U.S at 248, 106 S.Ct. at 2510 . With these guidelines in mind, the Court turns first to discuss the DISD's asserted grounds for dismissal, then to its alternative request for summary judgment.
III. Analysis
A. DISD's Motion to Dismiss Pursuant to Rule 16(f) and Rule 41(b)
DISD first asks the Court to dismiss this case pursuant to Rules 16(f) and 41(b) of the federal rules of civil procedure. DISD contends that Dudley has failed to diligently prosecute this case and has otherwise failed to comply with the Court's pretrial orders, and, as a consequence, the case should be dismissed without prejudice. Def's Mot. at 1-4.
Rule 16(f) provides for the imposition of various sanctions for noncompliance with scheduling and other pretrial orders of the Court. It states in pertinent part:
If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37 (b)(2)(B), (C), (D). Fed.R.Civ.P. 16(f).
Rule 41(b) provides in pertinent part "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Fed.R.Civ.P. 41(b).
Under both Rules 16(f) and 41(b), the Court may, in its discretion, dismiss a case based on the plaintiff's failure to comply with its pretrial orders. See Fed.R.Civ.P. 37(b)(2)(C) ; See also Gayden v. Galveston County , 178 F.R.D. 134, 135-36 (S.D Tex. 1998), aff'd in part , 177 F.3d 978 (5th Cir. 1999); Thomas v. Bear, Stearns Co., Inc ., No. Civ. A. 3:93-CV-1970-D, 1996 WL 706871 at * 1-2 (N.D.Tex. Dec. 4, 1996) (Fitzwater, J.). Whether the dismissal will be with or without prejudice is particularly relevant to this decision. See Gayden , 178 F.R.D. at 136; Thomas, 1996 WL 706871 at * 1 . As DISD recognizes in its motion, this case cannot be timely refiled once dismissed as more than ninety days have elapsed since Dudley received her right-to-sue letter from the EEOC. See Def.'s Mot. at 3 n. 1. Thus, dismissal of Dudley's case even without prejudice will operate as a dismissal with prejudice, and the Court must treat it as such. See Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996); Thomas, 1996 WL 706871 at * 1 .
Dismissal with prejudice "is an extreme sanction that deprives the litigant of the opportunity of pursue his claim." Gayden, 178 F.R.D. at 136 (citing Callip v. Harris County Child Welfare Dep't, 757 F.2d 1513, 1519 (5th Cir. 1985) (other citation and internal quotations omitted). It is appropriate only in those egregious cases in which there is a "failure to comply with [a] court order [and the failure] was the result of purposeful delay or contumaciousness and the record reflects that the district court employed lesser sanctions before dismissing the action." Long, 77 F.3d at 880; See also Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990).
In this case, Dudley failed to comply with the Court's August 24, 2000 order requiring her appearance at a September 13th pretrial hearing. See Order, filed Sept. 18, 2000. The record also reflects, however, that neither party complied with the Court's February 2, 2000 Scheduling Order directing that pretrial materials be filed with the Court no later than October 25, 2000. See Order, filed Oct. 30, 2000. And based on the allegations in the instant motion and Dudley's response thereto, there appears to be some factual dispute as to whether both parties have fully complied with other provisions of the Scheduling Order, and whether Dudley has paid $200 to DISD's counsel in accordance with the Court's September 18, 2000 order. See Def's Mot. at 1-4; Pl's Resp. at 1-4.
After the parties failed to timely submit their pretrial materials pursuant to the Scheduling Order, the Court entered a show cause order on October 30, 2000, directing both parties to appear at a hearing on November 3, 2000 and to show cause why they should not be sanctioned. Order, filed Oct. 30, 2000. Following the arguments of both counsel, the Court declined to enter sanctions against either of the parties. Subsequently, the Court also entered an Amended Scheduling Order to govern the remainder of this case. See Am. Scheduling Order, filed Nov. 6, 2000.
In summary, having reviewed the record and heard the arguments of counsel at the November 3rd show cause hearing, there is no indication that Dudley's actions with respect to the Court's pretrial orders have been contumacious or for the purpose of intentionally delaying this case so as to warrant dismissal with prejudice. Moreover, the Court has not "employed lesser sanctions before dismissing the action," as required by Long. In fact, the Court expressly declined to sanction either party following the November 3rd show cause hearing. Accordingly, for these reasons, DISD's motion to dismiss this case pursuant to Rules 16(f) and 41(b) is DENIED.
B. DISD's Alternative Motion for Summary Judgment
Alternatively, DISD moves for summary judgment on Dudley's reasonable accommodation claim. They contend that she suffered no adverse employment decision, and that she cannot demonstrate that she requested a reasonable accommodation. Def's Mot. at 4. More specifically, DISD maintains that Dudley failed to apply for any vacant mail room or PBX operator positions and, even assuming she did, she was not qualified for either of those jobs. Id. at 8-10. DISD further urges in its reply that Dudley's EEOC complaint was untimely thus barring her claim in this Court, and that she cannot establish any compensable damages under the ADA. Def.'s Reply at 4-6, 8-10. Before examining the merits of Dudley's reasonable accommodation claim, the Court turns first to address whether it is timely.
DISD also objects to some of the evidentiary materials offered by Dudley in support of her response, requesting that they be stricken from the record. Def's Reply at 1-2. Because, however, the Court finds that it need not rely on any of these alleged deficiencies in resolving this motion, it will not discuss DISD's objections. Likewise, the Court declines to discuss the merits, if any, of Dudley's claims that DISD subjected her to unlawful retaliation and/or harassment for filing this lawsuit. See Pl's Resp. at 4-6, 8 . As best the Court can tell from the record in this case, these claims were first introduced as part of Dudley's response to the instant motion. She has not amended her complaint nor has she sought leave to do so in order to add a retaliation or harassment cause of action. Consequently, even assuming these claims are properly before the Court, they will not be addressed in this order.
1. Timeliness of Reasonable Accommodation Claim
Before commencing an action in federal court against an employer for violation of Title I of the ADA, the employee must first file a timely administrative complaint with the EEOC alleging the charges of disability discrimination. Dao v. Auchan Supermarket, 96 F.3d 787, 788 (5th Cir. 1996). This EEOC charge must be filed within 180 days of the alleged discrimination or within 300 days if the plaintiff has instituted a complaint with a state or local agency. 42 U.S.C. § 2000e-5 (e) (1) (West 1994); See Dao, 96 F.3d at 788 (citing 42 U.S.C. § 2000e-5 (e)(1) and holding that ADA plaintiff must exhaust administrative remedies in same manner as Title VII plaintiff). Because Dudley filed her EEOC complaint on August 23, 1999, she would ordinarily be barred from premising her reasonable accommodation claim on any unlawful conduct that occurred before October 26, 1998. See Waitman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989). Nevertheless, her claim will be barred only if she knew or reasonably should have known that DISD's challenged actions occurred prior to October 26, 1998. See Vadie v. Mississippi State Univ., 218 F.3d 365, 371 (5th Cir. 2000), petition for cert. filed, — U.S.L.W. — (U.S Dec. 19, 2000) (No. 00-1007).
DISD has assumed, as Dudley alleged in her complaint, that she filed a discrimination complaint with the Texas Commission on Human Rights. See Def.'s Reply at 5; Pl's Compl. at ¶ 6. Thus, the 300-day limitations period applies to this case.
The challenged actions, and the basis for Dudley's reasonable accommodation claim, is that DISD failed to transfer her to a mail room or PBX operator position for which she applied in March of 1998. Pl's Resp., Exs. 9-10 and Ex. 11 (Dudley Depo. at 28, 30-32, 41-45). As she was not offered either of these positions DISD maintains that) by June 1, 1998 at the latest, Dudley should have known that DISD was not going to accommodate her requests to be transferred. Def.'s Reply at 5. Thus, DISD reasons, because her EEOC charge was not filed until August 23, 1999, well over 300 days later, her reasonable accommodation claim is time-barred. Id. at 5-6.
DISD, however, offers no competent summary judgment evidence supporting its assertion that Dudley knew or should have known by June 1998 that she would not be transferred to these positions. For instance, there is nothing in the record showing that DISD ever communicated to Dudley that her transfer requests were denied. She testified at her deposition that Gerald Jimenez ("Jimenez"), a supervisor to whom she applied for the mail room job, never responded to her application. Pl.'s Resp., Ex. 11 (Dudley Depo. at 42-43). Moreover, there is no proof setting forth any DISD policy, if one exists, on responding to employees' applications to transfer. Nor is there any evidence demonstrating if and when the mail room and PBX positions for which Dudley applied were filled by another employee. Jimenez stated in his affidavit that during 1998 and 1999, DISD was reducing the number of telephone positions within the district because their new telephone systems had become more automated and thus telephone operators, at a majority of DISD facilities, were no longer necessary. Def.'s Mot., Ex. D4 (Jimenez Aff. at 2). While this may suggest that the number of telephone operator positions were limited, Jimenez provided no information on how, if and when these positions were filled. On balance, viewing the record in the light most favorable to Dudley, the Court cannot say, as a matter of law, that she should have known that she was not going to be accommodated prior to October 26, 1998.
DISD has adduced evidence of some correspondence from Linda Davis ("Davis"), of DISD's Personnel Services Department, to Dudley concerning her need for accommodations in performing her custodial duties. Def.'s Mot., Depo. Exs. 3-4, 6. Dudley had submitted her application for the PBX operator position to Davis on March 16, 1998. See Pl.'s Resp., Ex. 10. One of Davis' letters to Dudley is dated March 18, 1998, two days after Dudley applied for the PBX operator job. See Def.'s Mot., Depo. Ex. 6. Nevertheless, that letter appears to be in response to a February 29, 1998 meeting which Dudley had with DISD's ADA Committee to discuss accommodations for her custodial position. Id. That letter in no way refers to Dudley's March 16th application or the PBX operator position. Therefore, it cannot be construed as some indication to Dudley that she would not be offered a transfer to the PBX operator position.
"The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those parts of the record that it believes demonstrate the absence of a genuine issue of material fact." Latimer, 919 F.2d at 303 . Again, viewing the evidence in the light most favorable to Dudley, the Court finds that DISD has failed to meet this initial burden with respect to the timeliness of Dudley's EEOC complaint. Consequently, a genuine fact issue exists as to whether Dudley's reasonable accommodation claim is time-barred and, therefore, summary judgment is improper. The merits of Dudley's reasonable accommodation claim are next.
2. Merits of Reasonable Accommodation
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability . . ." 42 U.S.C. § 12112 (a) (West 1995). The term "discriminate" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112 (b)(5)(A) (West 1995). Under the ADA, therefore, employers are required to make reasonable accommodations for disabled employees. Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 734 (5th Cir. 1999). "[I]f an employee proves that his employer has failed to make reasonable accommodations to the employee's `known physical or mental limitations,' the employer will be deemed to have `discriminated,' unless it can show that [the] accommodation would impose `undue hardship on the operation' of its business." Gonzales v. City of New Braunfels, 176 F.3d 834, 837 (5th Cir. 1999) (quoting 42 U.S.C. § 12112 (b)(5) (A) (1997)).
To succeed on her reasonable accommodation claim, Dudley must show that she requested a reasonable accommodation, and that she was a "qualified individual with a disability" as defined by the ADA when DISD failed to reasonably accommodate her. See Burch v. Coca-Cola Co., 119 F.3d 305, 314-15, 318 (5th Cir. 1997), cert. denied, 522 U.S. 1084, 118 S.Ct. 871, 139 L.Ed.2d 768 (1998); See also Riel v. Elec. Data Sys., Corp., 99 F.3d 678, 682-83 (5th Cir. 1997). She must also demonstrate that DISD was aware of the limitations resulting from her disability. See Gammage v. West Jasper Sch. Bd. of Education, 179 F.3d 952, 954-55 (5th Cir. 1999) (citation omitted). For purposes of this motion, DISD assumes that Dudley has a disability as defined under the ADA. See Def.'s Mot. at 7. Furthermore, they do not dispute that they were aware of the limitations caused by her disability. Instead, DISD contends that summary judgment is warranted because Dudley cannot establish (1) that she suffered an adverse employment decision; (2) that she requested a reasonable accommodation; or (3) that she has sustained damages which are compensable under the ADA. Def's Mot. at 7-10; Def.'s Reply at 6-10.
a. Adverse Employment Decision
DISD's first contention is unavailing. The ADA, by it provisions, mandates that employers provide reasonable accommodations to qualified individuals with a disability. 42 U.S.C. § 12112 (b)(5)(A) (West 1995); Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 734 (5th Cir. 1999). When an employer fails to do so, by definition, it has engaged in unlawful discrimination under the ADA. Gonzales, 176 F.3d at 837 (citing 42 U.S.C. § 12112 (b)(5)(A) (1997)). The Fifth Circuit in Burch and on other occasions has recognized that a discrimination claim under the ADA may be based on the employer's discriminatory adverse action; i.e., terminating or demoting an individual because of his disability, or on the employer's failure to provide the employee with a reasonable accommodation. See Burch, 119 F.3d at 313-14 n. 4, 320-21; See also Loulseged, 178 F.3d at 734 . In fact, the Circuit expressly stated in Loulseged that failing to accommodate an employee standing alone, in the absence of some other adverse employment action, may give rise to a claim under the ADA. Loulseged, 178 F.3d at 734 .
Dudley's claim in this case is clearly predicated on a reasonable accommodation theory in that DISD failed to transfer her to a mail room or PBX operator position. DISD offers no authority that failing to show some adverse employment action is somehow fatal to that claim. In any event, one court in this district has held that failing to transfer an employee is indeed an ultimate employment decision. Yount v. S A Restaurant Corp., No. Civ. A. 3:96-CV-1400-D, 1997 WL 573463 at * 4 (N.D.Tex. Sept. 8, 1997) (Fitzwater, J.) (retaliation claim). Accordingly, summary judgment on this ground is improper.
b. Request for Reasonable Accommodation
DISD further argues that Dudley has failed to show that she requested a reasonable accommodation. More specifically, they claim that she never applied for any available mail room or PBX operator positions and, assuming she did, she was not qualified for either of these jobs. Def.'s Mot. at 8-9.
Under the ADA, a reasonable accommodation includes "reassignment to a vacant position." 42 U.S.C. § 12111 (9)(B) (West 1994); See Gonzales, 176 F.3d at 838 . As previously noted, Dudley must establish that she asked for a reassignment, that she was qualified for that position, and for it to be a reasonable accommodation, the position must exist and be vacant. See Hurch v. City of Nacogdoches, 174 F.3d 615, 620 (5th Cir. 1999).
DISD offers the affidavit of J.B. Sheffield, Dudley's area manager, who stated that he was uaware that Dudley ever applied for another position within DISD. Def's Mot., Ex. D3 (Sheffield Aff. at 2) . Gerald Jimenez, another DISD manager, also stated that he never received an application from Dudley for any particular job, and, if he had, she was not following proper DISD procedure as such applications should be sent directly to the Human Resources Department. Id., Ex. D4 (Jimenez Aff. at 1). Jimenez further attested that there were no postings for vacant telephone operator jobs during 1998 or 1999 because the district was reducing the number of positions due to an advanced automated telephone system. Id. (Jimenez Aff. at 2).
Dudley responds with competent, controverting evidence, discussed briefly above in section A, that she did in fact apply for a mail room position and a PBX operator position in March of 1998, both of which were vacant. Pl.'s Resp., Exs. 9-10. She testified in her deposition and in her affidavit and offers supporting documentation that on March 6 and March 16, 1998, respectively, she submitted an application, known as a "letter of interest," to Jimenez regarding the mail room position and a "letter of interest" to Linda Davis regarding the PBX operator position. Pl's Resp., Ex. 9-10, 11 (Dudley Depo. at 28, 31-32), 12 (Dudley Aff. at unnumbered 1-2) . The evidence in the record, the Court finds, is sufficient to raise a genuine fact issue as to whether Dudley requested, as a reasonable accommodation, to be transferred to the mail room and the PBX operator positions. The issue then becomes whether she was qualified for those jobs.
In its reply, DISD objects to an alleged inconsistency between Dudley's deposition testimony and her affidavit regarding the application for the mail room job, ostensibly urging the Court to disregard the affidavit. Def.'s Reply at 3. Dudley recounted at her deposition that she submitted the "letter of interest" for the mail room job to Jimenez. Pl.'s Resp., Ex. 11 (Dudley Depo. at 28-29). She stated in her affidavit that she "followed all proper procedures" in applying for the mail room job. Id., Ex. 12 (Dudley Aff. at unnumbered 1). According to DISD, because Dudley did not follow proper procedures in submitting the application to Jimenez rather than directly to the Personnel Department, her affidavit is inconsistent with her deposition testimony. Def.'s Reply at 3.
Accepting this argument, however, assumes DISD's contention that the only proper procedure for requesting a transfer is to tender an application directly to the Personnel Department. Dudley's deposition testimony and affidavit suggest the contrary. For example, she stated at her deposition that she gave her mail room application to Jimenez because he was responsible for interviewing and hiring the person for that job. Pl.'s Resp., Ex. 11 (Dudley Depo. at 28-30). She stated in her affidavit that she gave him the application because she was following the procedure mandated by her supervisor and what was the common practice for submitting transfer requests with DISD. The Court fails to see any inconsistency in this testimony. Rather, it raises a fact issue as to what was the proper procedure in requesting a transfer and whether Dudley followed that procedure in applying for the mail room job. Moreover, DISD has not controverted Dudley's evidence that she properly submitted an application for the PBX operator position to Linda Davis. For these reasons, the Court declines to strike Dudley's affidavit.
The ADA defines "qualified individual with a disability" as "an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111 (9) (B) (West 1995). Here, the parties focus their arguments more on whether Dudley could perform the functions of the positions which she desired — the mail room and PBX positions.
To determine which functions of any particular job are "essential," the ADA provides that an employer's written description of those functions is entitled to substantial deference. 42 U.S.C. § 12111 (8) (West 1995); Riel, 99 F.3d at 682 . If an employer does not give a written job description or the particular function at issue is not included within the description, other evidence may be relevant to whether a function is "essential," including:
(1) the employer's judgment as to which functions are essential; (2) the written job description; (3) the consequences of not requiring the incumbent to perform the function; (4) the work experience of past incumbents in the job; and/or (5) the current work experience of incumbents in similar jobs.Riel, 99 F.3d at 682-83 (citing 29 C.F.R. § 1630.2 (n)(3)).
DISD contends that Dudley was not qualified for the mail room position because she was virtually limited to sedentary work and could not perform the required duties of lifting and carrying items or the necessary clerical skills. Def.'s Mot. at 8-9; Def's Reply at 7-8.
DISD's written job description for the mail room position does not list as essential functions the lifting and carrying duties which they claim she cannot perform. See Pl's Resp., Ex. 9. Perhaps this is so because the mail room position Dudley sought was a supervisory position, and DISD itself acknowledges that lifting and carrying are essential functions for mail room positions other than management and supervisory positions. See Def.'s Mot. at 8-9 and Ex. D4 (Jimenez Aff. at 2). Under these circumstances, Dudley's inability to lift or carry does not establish that she cannot perform essential functions of the mail room job.
DISD also points to Dudley's deposition testimony that she did not understand much of the Court's September 18, 2000 order directing her to inter alia disclose certain information to DISD and to pay their attorneys $200. Def's Reply at 8 (citing Def.'s App., Depo. Ex. 5 and Ex. D2 (Dudley Depo. at pp. 37, 39-40) . This evidence, DISD asserts, is reflective of Dudley's poor reading comprehension and clerical skills which are required for the mail room job. Id. Even assuming this evidence is probative of Dudley's abilities when she applied for the mail room position in March of 1998, over two years prior to the Court's September 18th order, the Court is unconvinced that it demonstrates as a matter of law that Dudley could not perform essential functions of that job.
DISD offers no other evidence concerning which functions of the mail room job are essential or whether Dudley could perform them. In short, they have failed to meet their burden to show the absence of a genuine fact issue as to whether she could perform the essential functions of the mail room position for which she applied.
With respect to the PBX position, DISD maintains that Dudley was not qualified due to her breathing problems, unclear speech, and inappropriate telephone behavior. Def.'s Mot. at 9; Def.'s Reply at 6-7. According to two of Dudley's supervisors, for about three months during 1998, when she filled in for co-workers answering the telephone at her location, her unclear speech and heavy, loud breathing made it difficult for callers to understand her, and she tended to converse with the caller rather than promptly forwarding their call or taking a message. Def.'s Mot., Ex. D3 (Sheffield Aff. at 2); Def.'s Reply, Ex. 5 (Williams Aff. at 2) .
DISD's written description for this position clearly requires as a qualification that the applicant have excellent speech and grammar usage and a pleasant and courteous telephone voice. Pl.'s Resp., Ex. 10. But Dudley stated in her affidavit that she was trained to operate the PBX machine, that she performed that job on numerous occasions, and that she never received any reprimand or complaints that her job performance was unsatisfactory. Pl's Resp., Ex. 12 (Dudley Aff. at unnumbered 1-3). The Court finds that this evidence is sufficient to at least raise a fact issue as to whether Dudley was qualified for the PBX operator position.
In summary, genuine fact issues exist in the record as to whether Dudley requested a transfer to the mail room and PBX operator positions as reasonable accommodations and whether she was qualified for those positions. Accordingly, DISD is not entitled summary judgment on these grounds.
3. Damages
DISD further contends that Dudley has produced no proof of any compensable damages under the ADA. Def.'s Reply at 8-10. Dudley prayed for actual damages in her complaint, and when questioned on this issue at her deposition, she testified that she has endured pain and suffering at work and had to take leave without pay during 1998 due to a hospitalization for her respiratory condition. Pl.'s Resp., Ex. 11 (Dudley Depo. at 46-47). She has alleged that these are effects from DISD's failure to accommodate her. The Civil Rights Act of 1991, 42 U.S.C. § 1981a allows ADA plaintiffs to recover compensatory damages on reasonable accommodation claims, including damages for lost wages and emotional pain and suffering. 42 U.S.C. § 1981a(a)(2), (b) (3) (West 1994). Accordingly, although fact issues remain as to the amount of damages, there is evidence in the record that Dudley is seeking damages which are compensable under the ADA. Summary judgment, therefore, is not warranted.
V. Conclusion
For the foregoing reasons, the Defendant's Motion to Dismiss for Failure to Comply With Prior Orders [Rule 16(f) and 41(b)], and Alternatively, for Summary Judgment [Rule 56] is DENIED in its entirety.