Rodriguez v. Conagra Grocery Products Co.

Full title: RUDY RODRIGUEZ v. CONAGRA GROCERY PRODUCTS CO

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Sep 16, 2004

Action No. 4:03-CV-055-Y (N.D. Tex. Sep. 16, 2004)

Opinion

Action No. 4:03-CV-055-Y.

September 16, 2004

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

TERRY MEANS, District Judge

Plaintiff Rudy Rodriguez ("Rodriguez") brought this lawsuit against defendant Conagra Grocery Products Co. ("ConAgra") asserting disability discrimination under the Texas Commission on Human Rights Act ("TCHRA"). Pending before the Court are the parties' cross-motions for summary judgment. After review of the motions and the related briefs, the Court concludes that ConAgra's motion should be granted.

I. Facts ¹

1 The facts appear to be undisputed.

Rodriguez worked as a temporary employee at ConAgra's Ranch Style Beans plant in Fort Worth, Texas, from January 25 to March 1, 2002. Rodriguez was placed in that position and paid by a temporary staffing agency with whom ConAgra contracted.

On approximately February 28, Rodriguez was offered an entry-level position in the production area at the plant. The offer was contingent upon his passing a background check, drug screen, and physical exam.

Accordingly, on March 1, Rodriguez went to Occupational Health Solutions ("OHS") for the required physical exam and drug test. OHS is an independent clinic ConAgra hired to conduct its pre-employment physicals and drug tests. Rodriguez gave an OHS staff member information about his medical history, including the fact that he took medications for high blood pressure and diabetes. Dr. Jerry Morris ("Morris"), an occupational physician at the clinic, performed Rodriguez's physical exam. Rodriguez informed Morris that his diabetes was well controlled and that his illness had never caused problems for him. Nevertheless, Morris testified that upon inquiry, Rodriguez could not remember the names of his medications, what his diabetic treatment plan was, or the name of his doctor. A urinalysis Rodriguez underwent showed elevated concentrations of glucose. As a result, Morris determined that Rodriguez was not medically qualified for the position because his diabetes was uncontrolled. He gave Rodriguez a form to take back to the plant stating that Rodriguez was "[n]ot medically qualified" due to "uncontrolled diabetes." (Def.'s App. at 93.)

Based on Morris's conclusion, Elza Zamora, the human resources manager at the plant, withdrew Rodriguez's job offer. Zamora did not speak to Morris about Rodriguez prior to withdrawing the job offer, but based her decision solely upon the form Morris had completed and given to Rodriguez to return to her. Zamora testified that if Rodriguez had supplied her with documentation from another doctor showing that his diabetes was under control, he would have gotten the job.

Rodriguez filed this suit, alleging that ConAgra had discriminated against him under the TCHRA by withdrawing his job offer because ConAgra regarded him as having a substantially limiting impairment when, in fact, he had an impairment that was not substantially limiting. Both parties have sought summary judgment.

II. Summary Judgment Standard

Summary judgment is appropriate when the record establishes "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." FED. R. CIV. P. 56(c). The party moving for summary judgment has the initial burden of demonstrating that it is entitled to a summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party need not produce evidence showing the absence of a genuine issue of material fact with respect to an issue on which the nonmovant bears the burden of proof. Rather, in that situation, the moving party need only point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmovant's claim. See id. at 323-35. Where, however, the moving party bears the burden of proof on the claim upon which it seeks summary judgment, it must present evidence that establishes "beyond peradventure all the essential elements of the claim or defense." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

When the moving party has carried its summary judgment burden, the nonmovant must go beyond the pleadings and by its own affidavits or by the depositions, answers to interrogatories, or admissions on file set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e). 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. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5^th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

In making its determination on the motion, the Court must look at the full record in the case. FED. R. CIV. P. 56(c); see Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Nevertheless, Rule 56 "does not impose on the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Instead, parties should "identify specific evidence in the record, and . . . articulate the `precise manner' in which that evidence support[s] their claim." Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994).

III. Analysis

The TCHRA prohibits employers from discriminating against individuals in hiring or discharge on account of their disability. TEX. LAB. CODE § 21.051. To prevail on a claim under this statute, "a plaintiff must show that (a) he has a disability, (b) he is a qualified individual for the job to which he is applying, and (c) that an adverse employment decision was made solely because of his disability." Still v. Freeport-McMoran, Inc., 120 F.3d 50, 51-52 (5^th Cir. 1997) (interpreting the federal Americans with Disabilities Act ("ADA"), 42 U.S.C. § 42101, et seq.);² McIntyre v. Kroger, 863 F. Supp. 355, 357-58 (N.D. Tex. 1994) (interpreting the TCHRA).

2 Because the TCHRA is modeled after federal civil-rights laws, courts look to the ADA and cases and regulations interpreting that statute when interpreting the TCHRA. See Herrera v. CTS Corp., 183 F. Supp. 2d 921, 925 (S.D. Tex. 2002) (citing NME Hosps., Inc. v. Rennels, 994 S.W. 2d 142, 144 (Tex. 1999)).

The parties have debated at length whether Rodriguez has demonstrated that he has a disability covered by the TCHRA. Under that act, the term "[d]isability means, with respect to an individual, a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of having such an impairment, or being regarded as having such an impairment." TEX. LAB. CODE 21.002(6) (West Supp. 2004). Rodriguez alleges that ConAgra regarded him as having a substantially limiting physical impairment because ConAgra believed his diabetes substantially limited him in the major life activity of working.³

3 ConAgra points out that "in order to show substantial limitation on the major life activity of working, it is insufficient to demonstrate only disqualification from the plaintiff's particular job or even a narrow range of jobs. . . . Rather, as [Rodriguez] has acknowledged, he must produce facts raising an inference that ConAgra perceived his condition as one that disqualified him from a broad class of jobs." (Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J. at 2-3.) While ConAgra's characterization of the law is accurate, the Court is not convinced that Rodriguez has not at least demonstrated a question of fact regarding this issue, given that he has presented testimony from Zamora tending to indicate that she considered Rodriguez to be disqualified from any position at the plant as a result of his uncontrolled diabetes. See Pl.'s App. at 70-80; see also Henderson v. Ardco, Inc., 247 F.3d 645, 654 (6^th Cir. 2001) (reversing summary judgment where plaintiff presented evidence that employer regarded her as unable to perform any of the jobs at its manufacturing facility); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3d Cir. 1999) (citing Coleman v. Keebler Company, 997 F. Supp. 1102, 1114 (N.D. Ind. 1988), for the proposition that "evidence that the defendant concluded that the plaintiff could not perform any available jobs in a production plant created a material issue of fact on a `regarded as' claim").

Even assuming that Rodriguez has adequately demonstrated ConAgra regarded him as disabled, however, the Court concludes that Rodriguez has failed to present any evidence tending to demonstrate that his employment offer was withdrawn because of the fact that he had diabetes, as opposed to the fact that his diabetes was not controlled. Rodriguez asserts that "ConAgra readily admits having withdrawn the job offer because [he] had diabetes." (Br. in Support of Pl.'s Mot. for Partial Summ. J. at 18.) The Court discerns no such admission, however, in the evidentiary record. Rather, the overwhelming, undisputed evidence is that Zamora withdrew the job offer because she believed that Rodriguez's diabetes was uncontrolled. This is a distinction with a difference. As ConAgra points out, numerous courts have concluded, albeit on differing grounds, that an employer's adverse action in response to a plaintiff's failure to control an otherwise controllable illness does not give rise to a disability-discrimination claim. See Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J. at 3-5 (citing Burroughs v. City of Springfield, 163 F.3d 505, 507-09 (8^th Cir. 1998); Van Stan v. Fancy Colours Co., 125 F.3d 563, 570 (7^th Cir. 1997); Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7^th Cir. 1995); Rose v. Home Depot USA, Inc., 186 F. Supp. 2d 595, 612-13 (D. Md. 2002); Hewitt v. Alcan Aluminum Corp., 185 F. Supp. 2d 183, 188-89 (N.D.N.Y. 2002); Brookins v. Indianapolis Power Light Co., 90 F. Supp. 2d 993, 1006 (S.D. Ind. 2000); Tangires v. The Johns Hopkins Hosp., 79 F. Supp. 2d 587, 596 (D. Md.), aff'd without op., 230 F.3d 1354 (4^th Cir. 2000); Roberts v. County of Fairfax, Va., 937 F. Supp. 541, 549 (E.D. Va. 1996); Pangalos v. Prudential Ins. Co. of Am., No. 96-0167, 1996 WL 612469, at *3 (E.D. Pa. Oct. 15, 1996)). Rodriguez's own medical experts admit that diabetes is generally controllable with proper diet, medication, and regular monitoring. (Def.'s App. at 101-03; 132.) As a result, Zamora's withdrawal of Rodriguez's job offer due to her belief that his diabetes was not controlled does not give rise to a disability-discrimination claim under the TCHRA.

Rodriguez contends that Zamora's perception that his diabetes was uncontrolled, which was based solely on Morris's conclusions from Rodriguez's pre-employment physical, was inaccurate. Rodriguez has not presented competent evidence tending to demonstrate, however, that at the time of his physical with Morris on March 1, 2002, his diabetes was under control. Although Rodriguez presented an affidavit of his primary-care physician, Dr. Ramon D. Garcia, indicating that Rodriguez's diabetes was under control at that time, this averment contradicts Garcia's prior deposition testimony, in which he admitted that he "can't say one way or another" whether Rodriguez's diabetes was under control in March 2002.⁴ (Def.'s Supp. App. at 22-23.) Rodriguez also presents expert testimony from Dr. Ralph DeFronzo, in which DeFronzo concludes that Rodriguez had "pretty good control" over his diabetes after he was placed on the medication "Glucovance" approximately a year prior to Morris's exam. (Pl.'s App. at 305-06.) DeFronzo repeatedly testified, however, that a hemoglobin A1c test was necessary to determine whether an individual's diabetes was under control, and that there were no hemoglobin A1c tests or other tests reflecting Rodriguez's condition at the time of Morris's exam. Indeed, DeFronzo admitted that "if you're asking me in between periods where things were not measured, of course I can only comment where there are measurements." (Pl.'s App. at 286.)

4 Garcia's contradictory averment in his affidavit cannot defeat summary judgment. Pack v. Bridgeport Mach., Inc., 237 F.3d 614, 619 (6^th Cir. 2001) ("A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony."); Albertson v. T.J. Stevenson Co., Inc., 749 F.3d 223, 228 (5^th Cir. 1984) ("nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony").

In any event, even assuming Zamora was incorrect that Rodriguez's diabetes was not under control at the time of his pre-employment physical exam, that mistake does not magically render his claim cognizable under the ADA or TCHRA. "[I]f an impairment is not a disability for actual disability purposes, it is also not a disability for perceived disability purposes." Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 199 (1^st Cir. 1999). Because an actual failure to control a controllable illness does not give rise to a disability-discrimination claim, a mistaken belief that an individual was not controlling his controllable illness similarly does not give rise to such a claim. In other words, even if Zamora was correct that Rodriguez's diabetes was uncontrolled, Rodriguez would not be protected under the ADA/TCHRA; he does not become protected simply by asserting that Zamora was mistaken.

IV. Conclusion

For the foregoing reasons, ConAgra's Motion for Summary Judgment [document number 30] is GRANTED. Rodriguez's Motion for Partial Summary Judgment [document number 35] is hereby DENIED. Rodriguez shall take nothing by way of his claims against ConAgra, and those claims are DISMISSED WITH PREJUDICE to their refiling.