Opinion
Civil No. 1:01CV174
April 10, 2002
MEMORANDUM AND ORDER
THIS MATTER is before the Court on motion of Defendant Leviton Manufacturing Company, Inc., (Leviton) for summary judgment. For the reasons stated below, Leviton's motion is granted.
I. PROCEDURAL HISTORY
In her complaint filed July 27, 2001, Plaintiff Laura J. Jurosko (Jurosko) alleges that her former employer, Leviton, discriminated against and harassed her because she is disabled and that she was terminated in retaliation for her filing a complaint with the Equal Employment Opportunity Commission (EEOC), both in violation of the Americans with Disabilities Act (ADA). 42 U.S.C. § 12101, et seq. Leviton answered on September 4, 2001, denying that any of its actions constituted violations of the ADA. Leviton moved for summary judgment on February 25, 2002, and Jurosko timely responded.
The complaint also alleges violations of Title VII, apparently for retaliatory discharge. 42 U.S.C. § 2000e-3. Jurosko's retaliatory discharge claim is covered under the ADA. 42 U.S.C. § 12203 (a). Her EEOC charges were based entirely on her alleged disability. As such, her claim of retaliation for those charges is properly made under the ADA.
II. FACTUAL HISTORY
Jurosko was hired as a machine operator by Leviton, doing business as Southern Devices, in June 1997. She initially worked the night shift, where her immediate supervisor was Randy LaFevers. Deposition of Laura Jurosko, at 6, 180. Sometime in 1998, she changed to the first shift where her immediate supervisor was Joyce Allman (Allman), the line supervisor. Deposition of Ella Brittain, at 8. Ella Brittain (Brittain) served as the department supervisor; Ralph Burnette (Burnette), the department manager; and Russ Cato (Cato), the plant manager. Jurosko Deposition, at 180. Walter Johnson (Johnson), now deceased, was the human resources manager at the facility. Id.
Jurosko's job required her to monitor an assembly machine known as a "bodine." Id., at 153. She performed her job in an open area of the plant floor where at least 30 other employees worked. Id. Jurosko has a bachelor's degree from Catawba College, but the machine operator position requires only an eighth grade education, making her significantly over-qualified for the job. Id., at 68, 186. For purposes of this motion, Leviton is willing to assume that Jurosko has attention deficit/hyperactivity disorder (ADHD) and depression. Defendant's Memorandum of Law in support of Motion for Summary Judgment, filed February 25, 2002, at 10.
Jurosko engaged in disruptive behavior on the plant floor throughout her employment. These activities included, inter alia, wearing military fatigues to work, including combat boots, with an extra pair of combat boots hanging around her neck. Jurosko Deposition, at 293. On at least one occasion, she wore a surgical gown to work. Id. , at 295. Jurosko joked with her co-workers that she was a fairy and brought a wand to work. Id. , at 447. She frequently "bopp[ed]," or danced, around her machine. Id., at 296, 712, 771. Jurosko collected used chewing gum from her co-workers to make "gum art." Id. , at 549.
On March 17, 2000, Jurosko approached her supervisor, Allman, and asked for permission to leave work for a medical appointment. It is unclear whether Allman replied to Jurosko at all, but she did not respond to her request and did not inquire as to the nature of Jurosko's medical problem. A few moments later, Jurosko told Allman, "I hope I don't get a urinary tract infection because it's not good to try to hold your urine." Id. , at 370. Previously, Jurosko had been counseled about the frequency of her trips to the restroom while on the job. Id. , at 359. Allman granted Jurosko permission to go to her appointment. Jurosko did not have a medical appointment; instead, she went for a counseling session at Foothills Mental Health. Id., at 369-372, 381; Deposition of Joyce Allman, at 35-37; Defendant's Supporting Memorandum of Law, at 4; Plaintiff's Response to Defendant's Motion for Summary Judgment, filed March 14, 2002, at 3.
Neither party has included in their respective filings page 371 of Jurosko's Deposition on which she apparently explains the timing of her conversations with Allman on March 17. Jurosko cites this page in her response. See, Local Rule 26.1 ("Materials filed in support of a motion shall be appropriately labeled and attached as an Appendix thereto and shall be limited to those portions of the material directly necessary tosupport the motion .") (emphasis added). Jurosko has failed to comply with this Rule in her response.
The next day, Allman asked Jurosko to provide her a doctor's note for the previous day. Jurosko replied that she had no such note because she had seen a counselor, not a medical doctor. After consultation among Allman, Brittain, and Johnson, Leviton issued a written warning to Jurosko on March 22, 2000, based on her misleading statements concerning the nature of her appointment and her failure to provide a doctor's note. See Allman Deposition Exhibit 3, attached to Plaintiff's Response; Exhibit C, Affidavit of Ella Brittain, attached toDefendant's Motion forSummary Judgment. Jurosko filed her first complaint with the EEOC on March 23, 2000, claiming Leviton had discriminated against her and harassed her because of her disability.
On April 4, 2000, Jurosko asked Allman if she could leave work early. The two then had what Jurosko now describes as "a lengthy conversation." Plaintiff's Response, at 4. The parties agree that Jurosko refused to inform Allman of the specifics of her need to be absent, and at that time, Jurosko did not understand why the company would need to know why she needed to leave. Jurosko now admits that the company had a legitimate interest in knowing her reasons for leaving work early. Jurosko Deposition, at 457-58. Out of frustration with Jurosko, Allman said, "Just go," or "Laura, go" or "Laura, just go," or some similar phrase. Jurosko admits that Allman maintains that she told Jurosko to go back to her work station and did not give her permission to leave. Id., at 509; Plaintiff's Response, at 4. Jurosko maintains she understood that she was free to leave work, and proceeded to depart. Complaint, at ¶ 21, Plaintiff's Response, at 4. However, Jurosko admitted in her deposition that she "was not given permission to leave." Jurosko Deposition, at 255. Although Jurosko contends in her response that she testified differently (luring her deposition, she does not cite to her deposition to support this point, nor does she attempt to explain this testimony. Plaintiff's Response, at 4, 8.
Again the Plaintiff cites her deposition at pages at 499-501 and 578-582, but fails to include copies of these portions of the deposition with her pleading.
When Jurosko returned to work the next day, she attended a meeting with Allman and Brittain and presented her version of the preceding day's events. Brittain Deposition, at 34-36. Finding that Jurosko had left work before her shift ended without permission, Jurosko was suspended on April 5, 2000, and ultimately fired on April 12, 2000. Jurosko Deposition, at 561-62. On April 18, 2000, she filed a second complaint with the EEOC claiming retaliatory discharge. It is undisputed that Allman had no knowledge of the original EEOC complaint before Jurosko was terminated. See, Exhibit D, Affidavit of Joyce Allman, attached to Defendant's Motion.
III. STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party, here the Plaintiff. Shaw v. Stroud , 13 F.3d 791, 798 (4th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). By reviewing substantive law, the Court may determine that matters constitute material facts. Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. The Defendant, as the moving party, has the initial burden to show a lack of evidence to support the Plaintiff's case. Shaw, supra (citing Celotex Corp. v.Catrett, 477 U.S. 317, 325 (1986)). If that showing is made, the burden then shifts to the Plaintiff who must convince the Court that a triable issue does exist. Id. A "mere scintilla of evidence" is not sufficient to defeat summary judgment. Id. In considering the facts of the case for purposes of this motion. the Court will view the pleadings and material presented in the light most favorable to Jurosko, as the nonmoving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
IV. ANALYSIS
A. Discrimination and Harassment claims under the ADA
Jurosko claims that she was harassed or discriminated against in several ways all as a result of her disability. In the employment context, the ADA provides,
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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). Jurosko alleges the that conduct of her co-workers, including some restrictions placed on the conditions of her employment, were either discriminatory or harassing. Although the Fourth Circuit has not explicitly established the elements of a claim of harassment based on disability under the ADA, the remaining Circuits have consistently applied the same frameworks of analyses as those used in sex and race-based claims. Shiflett v. GE Fanuc Automation Corp., 960 F. Supp. 1022, 1035 (W.D. Va. 1997), aff'd, 151 F.3d 1030 (4th Cir. 1998) ("Not unexpectedly, courts have analogized harassment based on disability to hostile work environment claims under Title VII."); Seealso, Rhoads v. F.D.I.C., 257 F.3d 373 (4th Cir. 2001), cert. denied, 122 S.Ct. 1309 (2002); Haulbrook v. Michelin North America, 252 F.3d 696 (4th Cir. 2001) (retaliatory discharge claims). Thus,
To make out a claim of disability harassment, [Jurosko] must first show that the allegedly harassing acts of [Leviton's] employees were: 1) unwelcome; 2) based on her disability; and 3) severe and pervasive enough to alter the conditions of employment and create an objectively hostile or abusive working environment. In addition, [Jurosko] must establish some basis on which to impute liability toSanders v. FMAS Corp., 180 F. Supp.2d 698, 707 (D. Md. 2001) (citing Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (racial harassment); Amirmokri v. Baltimore Gas Elec. Co., 60 F.3d 1126, 1130 (4th Cir. 1995) (national origin harassment); Dwyer v. Smith, 867 F.2d 184, 187 (4th Cir. 1989) (sexual harassment)). In order to establish a prima facie case of disability discrimination, a plaintiff must show: "(1) that she has a disability, (2) that she is a "qualified individual" for the employment in question, and (3) that [defendant] discharged her (or took other adverse employment action) because of her disability." EEOC v.Stowe-Pharr Mills, Inc., 216 F.3d 373 377 (4th Cir. 2000). Under either type of claim, Jurosko must first establish that she is a "qualified individual with a disability."
A "qualified individual with a disability" is defined as "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. § 12111 (8). "Disability" is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities for [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2). Leviton is willing to assume, for purposes of the motion, that Jurosko suffers from ADHD and depression and that these conditions qualify as "mental impairments" under the ADA. See, Defendant's Motion, at 10.
Leviton argues, however, that Jurosko is not "substantially limited" in a "major life activity" by her impairments and, therefore, is not disabled under the ADA. Leviton alleges that Jurosko has produced no evidence that she is substantially limited in a major life activity. In fact, Leviton cites to Jurosko's deposition testimony where she details her ability to cope with daily life. For example, Jurosko has been employed almost continuously over the past 20 years. Jurosko Deposition, at 82-83. She joined the United States Air Force, completed officer training school, and was discharged honorably. Id. , at 71. She has been able to read, write, talk, hear, shop, seek medical attention, care for her children, bathe, answer the phone, cook, look for work, pay her bills, add, subtract, type, e-mail, use a computer, clean, do chores, date men, and make friends throughout past ten years. Id. , at 7-8, 12, 15-16, 20-23, 26-27, 35, 122, 126-28, 135, 325. Furthermore, Jurosko does not present any evidence that she has a record of being substantially limited in her major life activities by her impairment, or that Leviton regarded her as substantially limited in major life activities by her impairment. See, Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521-523 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-90 (1999) (discussing the meaning of "regarded as" under 42 U.S.C. § 12102 (2)(C)).
In response, Jurosko fails to point to any specific facts which support her claim that she is a disabled person under the ADA. She maintains her contentions as stated in her Complaint, and in her deposition testimony, and as otherwise presented in this Memorandum." Plaintiff's Response, at 5. This is not sufficient to defeat a motion for summary judgment. "[A]lthough a motion for summary judgment should not be granted if there exists a genuine issue of material fact that warrants a trial on the issues, such a motion cannot be denied unless the non-moving party puts forth specific facts evidencing that such a genuine issue does exist." Strag v. Rd. of Trustees, Craven Cmty. Coil., 55 F.3d 943, 951 (4th Cir. 1995) (citing Allstate Financial Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir. 1991); Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718-19 (4th Cir. 1991)). Jurosko has not pointed to any specific fact which supports the contention that she is disabled. As such, she has failed to make out a prima facie case of either discrimination or harassment under the ADA.
Leviton also argues that no material issues of fact are in dispute relating to the other elements of Jurosko's claims. Regarding the claim of harassment, Jurosko has failed to point to any specific evidence that any allegedly harassing conduct was based on her disability; that any such conduct was unwelcome; that it was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; or that some factual basis exists to impute liability to Leviton. Likewise, regarding her claim of discrimination, Jurosko has failed to put forth specific evidence that she suffered adverse employment action which was based on her disability.
B. Retaliatory Discharge
Where, as here, a plaintiff does not offer direct evidence of retaliatory animus, she must rely on the burden-shifting method of proof Rhoades, 257 F.3d at 391-92. In order to establish a prima facie case of retaliatory discharge under this scheme, Jurosko must show "that: (1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) her protected activity was causally connected to her employer's adverse action." Id. , at 392 (citing Haulbrook, 252 F.3d at 705-07; Beall v. Abbott Labs, 130 F.3d 614, 619 (4th Cir. 1997). If Jurosko makes this showing, Leviton then has the burden to rebut the presumption of retaliation by articulating a legitimate, non-retaliatory reason for its actions. Id. (citations and quotations omitted). If Leviton makes that rebuttal, then Jurosko must demonstrate that the proffered reason is a pretext for forbidden retaliation. Id. Jurosko need not establish that she is disabled to state a claim for retaliatory discharge. Id., at 391; 42 U.S.C. § 12203 (a) (prohibiting discrimination against "any individual" based on protected activity).
The parties agree that Jurosko has met the first two prongs of this test: she filed a complaint with the EEOC and was terminated from her employment. As evidence that her termination was causally connected to her filing the complaint with the EEOC, Jurosko relies on the temporal proximity of the two events. Assuming, arguendo, that temporal proximity is sufficient to overcome summary judgment, Jurosko has established a factual dispute over the existence of a prima facie case of retaliation. Haulbrook, 252 F.3d at 706 ("Giving [the employee] the benefit of all reasonable inferences, a contested issue of fact arguably exists as to the [prima facie case] . . ., due solely to the proximity in time of [her] termination . . . and [her] assertion . . . of a right . . . under the ADA.").
Leviton's legitimate, non-discriminatory reason for terminating Jurosko is that she left work early on April 4, 2000, without permission. Jurosko admits that she was not given permission to leave. Jurosko does not deny that Leviton terminated her because she left early. Jurosko concedes that leaving work before the end of a shift without supervisor approval would properly result in discharge under Leviton's rules. Jurosko Deposition, at 198-99.
In response to Leviton's legitimate, non-discriminatory reason for her discharge, Jurosko must present evidence that this reason is pretextual. Rhoades, 257 F.3d at 392. Jurosko relies on two arguments to establish pretext. First, she relies on her own, subjective belief that she was terminated in retaliation for the initial EEOC complaint. "I thought that I had been fired because I filed the charge." Jurosko Deposition, at 684-85. This is not sufficient to establish pretext. Hawkins v.PepsiCo, Inc., 203 F.3d 274, 281 n. 1 (4th Cir.), cert. denied, 531 U.S. 875, reh'g denied, 531 U.S. 1031 (2000). "[A] plaintiffs own assertions of [retaliation] in and of themselves are insufficient to counter substantial evidence of legitimate nondiscriminatory reasons for an adverse employment action." Id. , at 281. Jurosko's second argument is her contention that she did, in fact, have permission to leave work on April 4, 2000. Her argument is belied by her own deposition testimony; she admitted she did not have permission. Thus, Jurosko has failed to establish a sufficient factual basis for her position that Leviton's stated legitimate, nondiscriminatory reason for terminating her was pretextual. Haulbrook, 252 F.3d at 706 ("[E]ven if there is a question fact as to [the existence of a prima facie case], the question of fact is not material because the proffered legitimate reason for [the employee]'s termination . . . was not rebutted effectively."). As such, Leviton has established that there are no material issues of fact still in dispute and it is entitled to judgment as a matter of law.
Jurosko quotes this statement from her own deposition, but these pages are not included in the parties, submissions to the Court.
V. ORDER
IT IS, THEREFORE, ORDERED that the Defendant's motion for summary judgment is ALLOWED. A Judgment dismissing this matter in its entirety is filed herewith.
JUDGMENT
For the reasons set forth in the Memorandum and Order filed herewith,
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the Defendant's motion for summary judgment is ALLOWED, and this matter is hereby DISMISSED WITH PREJUDICE in its entirety.