Opinion
CIVIL ACTION NO. 3:99-CV-0772-G
June 8, 2001
MEMORANDUM ORDER
Before the court is the defendant's motion for summary judgment. For the reasons discussed below, the motion is granted.
I. BACKGROUND
The plaintiff Sidney J. Schmidt, Jr. ("Schmidt" or "the plaintiff") began working for the defendant Delta Airlines, Inc. ("Delta" or "the defendant") in 1971 as a Ramp Service Agent assigned to Delta's airport operations in New Orleans, Louisiana. See Appendix in Support of Delta's Motion for Summary Judgment ("Defendant's Appendix") at 11, 40; Appendix in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("Plaintiff's Appendix") at 1. Approximately three years later, Schmidt transferred to a Reservation Sales Agent ("RSA") position and was assigned to Delta's Reservation Sales Office in New Orleans, Louisiana. Defendant's Appendix at 12, 40. Schmidt remained assigned to the New Orleans Reservations office until that office closed permanently in 1995. Plaintiff's Appendix at 1.
In late March 1995, Schmidt went on a medical leave of absence for depression, stress, and anxiety. This leave of absence lasted approximately ten months. See Defendant's Appendix at 20-22. Following the closure of Delta's New Orleans Reservations Sales Office, and while he was on medical leave of absence, Schmidt accepted a transfer to Delta's Reservations Sales Office in Dallas, Texas. See Defendant's Appendix at 23-24, 84-85. On December 26, 1995, Schmidt's treating psychiatrist, Dr. Michael Madow, released Schmidt to return to work at Delta on the condition that he continue receiving psychotherapy and medication "indefinitely into the future." Id. at 83. Schmidt began working in the Dallas Reservations Sales Office in approximately late January 1996. See id. at 118.
Between June and October 1995, Schmidt was diagnosed as suffering from a severe adjustment disorder with depressive and anxious features, obsessive/compulsive personality disorder, and an explosive personality. See Appendix in Support of Delta's Motion for Summary Judgment ("Defendant's Appendix") at 80-82; Plaintiff's Appendix in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("Plaintiff's Appendix") at 5-8.
Schmidt contends that, after Dr. Madow released him to resume working, Delta insisted that Schmidt receive a second opinion and sent him to Dr. Daniel K. Winstead for further evaluation. See Plaintiff's Brief in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("Response Brief") at 2-3. Schmidt further asserts that Dr. Winstead recommended that Schmidt be allowed to retire on disability, and that Delta ignored that recommendation. See id. at 3. The summary judgment record, however, directly contradicts both of these assertions. In fact, Dr. Winstead's evaluation took place in August 1995, fully five months before Schmidt was released to return to work. Compare Plaintiff's Appendix at 5 with Defendant's Appendix at 83. Moreover, the evaluation was not requested by Delta, but by the Delta Family-Care Disability Survivorship Plan — a separate legal entity — for the purpose of determining Schmidt's eligibility for continued short-term disability benefits. See Declaration of Pat DeJesus, attached as Exhibit A to Reply in Support of Defendant's Motion for Summary Judgment. Notwithstanding Schmidt's speculation to the contrary, the record does not show that, at the time Schmidt was suspended and discharged, Delta was aware of Dr. Winstead's August 1995 medical conclusions and recommendations. See id.
Schmidt concedes that sometime shortly after he began working in Dallas, he had difficulty meeting Delta's productivity or "time utilization" standards. See Plaintiff's Appendix at 2; Defendant's Appendix at 117-18. In 1996, Delta's RSAs were required to be signed onto their computer terminals and taking an average of 80-100 calls per day from customers or prospective customers. See id. at 117. The RSAs were also expected to minimize both the time spent on any one call ("average talk time" or "ATT") and the time taken between sales calls ("call wait time" or "CWT"). Id. In 1996, Delta's ATT standard was approximately 4 minutes and the CWT standard was approximately 30 seconds. Id. Delta's productivity requirements are posted in the RSAs' work area. Delta also posts each RSA's call work time and average talk time on daily and monthly bases. Id.
On April 19, 1996, Schmidt's supervisor, Yvonne Proctor, observed that he was handling only an average of 30-40 calls instead of 80-100 calls per day. See id. at 118. Proctor counseled Schmidt that his productivity levels were unacceptable and needed to improve. See id. To assist Schmidt in improving his productivity, Proctor arranged for him to receive several hours of additional training. See id. Schmidt claims that on April 19, 1996, he explained to Proctor that, as a result of his mental illness and the medications with which this illness was being treated, he had been experiencing short-term memory loss, lethargy, and difficulty concentrating. See Plaintiff's Appendix at 3. Schmidt additionally contends that he asked Proctor to reasonably accommodate him by decreasing his call volume, but that Proctor did not grant this request. See id. Proctor denies that Schmidt ever informed her that he had medical restrictions on his ability to work or that he needed any accommodations in order to perform his job. See Defendant's Appendix at 122. She further denies ever having received any medical documentation indicating that Schmidt suffered from a disability. See id.
In May 1996, Proctor counseled Schmidt twice, first for reporting late to work on two occasions, then for his alleged lack of sales effort during telephone calls. See id, at 119. On June 10, 1996, Schmidt again allegedly demonstrated unacceptable sales efforts and an unacceptable productivity level of only 40-50 calls per day. Id. When Proctor counseled him about the need for improvement, Schmidt allegedly responded "I will never take eighty calls per day, I'll just do whatever I can." Id, Three days later, on June 13, 1996, Proctor asked Schmidt why he had only taken 17 calls the day before and why he was only active for 3 hours and 44 minutes of his 8-hour shift. Id. Schmidt said he had lost his wallet and had to look for it. Id. Proctor counseled him regarding his unacceptable productivity and the impropriety of looking for his wallet while he was signed in as if actively working. Id. Proctor advised Schmidt that failure to improve his unacceptable performance would result in disciplinary action, including disciplinary probation. Id.
Despite these warnings, Schmidt continued to demonstrate poor productivity and improper telephone manipulation over a 3-day period between June 25 and June 27, 1996. Id. For example, on June 25, Schmidt handled only 46 calls, or approximately one-half of the 80-100 call requirement. Id. He also depressed the "outside line" button without dialing an outside number, thereby creating the appearance of having an active line and making him unable to receive incoming calls. Id. at 119-20. On June 27, 1996, Schmidt took no calls over a period of at least 69 minutes. He then depressed the outside line button, but did not dial out, once again improperly preventing him from receiving incoming calls. Id. at 120.
On June 27, 1996, Proctor and her immediate supervisor, Acting Manager Shirley Anthony, met with Schmidt to discuss their concerns regarding his performance. Id. When Proctor and Anthony asked Schmidt to explain his excessive unauthorized personal time and breaks, he responded sarcastically that he had had diarrhea and that perhaps they should have followed him to the men's room and "clocked" him while he had the diarrhea that Delta gave him. Id, at 26-27, 120.
At some point during the meeting, Anthony advised Schmidt that he was being suspended due to his unacceptable productivity and phone manipulation, and that his file would be reviewed for disciplinary action, including possible termination. Id. at 121. While Anthony was explaining the terms of his suspension, Schmidt left the office visibly upset and "began ranting about how they were treating him through the sales office." See Plaintiff's Brief in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("Response Brief") at 5; Defendant's Appendix at 121. Schmidt ignored directives from Anthony to return to her office, continuing instead into the reservations bay, where numerous RSAs were on duty, assisting Delta customers. See Defendant's Appendix at 121. Schmidt remained in the bay for several minutes, yelling, waving his arms, and demanding witnesses. Id. at 27-28, 121. He ignored repeated directives from Delta management to leave the bay area. Id. at 27-28, 121. Ultimately, Schmidt agreed to return to Anthony's office to resume the suspension meeting.
On August 8, 1996, Delta terminated Schmidt. See Plaintiff's Appendix at 3. Delta claims that its decision to terminate Schmidt's employment was based upon his performance deficiencies and misconduct — including manipulating the reservations phone system to avoid incoming calls, conducting personal business while on duty, and being tardy returning from breaks and lunch periods — as well as his insubordinate and disruptive behavior in the workplace on June 27, 1996. See Defendant's Appendix at 134.
On December 10, 1998, Schmidt filed this suit in the United States District Court for the Eastern District of Louisiana, alleging that Delta's termination of his employment violated the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq., and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. See Complaint at 1-5. The case was transferred to this court on March 31, 1999. See Minute Order (Mar. 31, 1999). Delta now seeks summary judgment on all of Schmidt's claims. See Delta Airlines, Inc.'s Motion for Summary Judgment ("Summary Judgment Motion") at 1.
II. ANALYSIS A. Evidentiary Burdens on Motions for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file 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. FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A movant for summary judgment makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. See Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249. While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the opponent's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). In the instant case, summary judgment is proper if, after adequate time for discovery, Schmidt fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. See Celotex, 477 U.S. at 322-23.
B. The ADA
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). To establish a violation of the ADA, Schmidt must show "that (1)[ ]he has a disability; (2)[ ]he was qualified for the job; and (3) an adverse employment decision was made solely because of [his] disability." Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758, 763 (5th Cir. 1996). Due to the absence of direct evidence of discrimination in this case, Schmidt must use the three-step, "indirect" or "pretext" method of proof detailed in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Daigle v. Liberty Life Insurance Company, 70 F.3d 394, 396 (5th Cir. 1995); Rizzo, 84 F.3d at 762. In the first step, Schmidt must establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If he produces proof of the elements of a prima facie case, a presumption of discrimination arises. See Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993). At the second step, Delta can rebut this presumption of discrimination by offering a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If Delta satisfies this burden of production, the prima facie case dissolves, and the case proceeds to the third step of the analysis. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993). At this third stage, the burden is on Schmidt to prove that the reasons offered by Delta are pretexts for prohibited discrimination. See id. at 507-08.
Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. See Mooney v. Aramco Services Company, 54 F.3d 1207, 1217 (5th Cir. 1995); Brown v. East Mississippi Electric Power Association, 989 F.2d 858, 861 (5th Cir. 1993).
1. The Prima Facie Case
To make out a prima facie case of disability discrimination, Schmidt must show that he (1) suffers from a disability under the ADA's definition, (2) is qualified for the job in question, and (3) was subject to an adverse employment action because of his disability. Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999); see also Taylor v. Principal Financial Group, 93 F.3d 155, 162 (5th Cir.) (citing Daigle, 70 F.3d at 396), cert. denied, 519 U.S. 1029 (1996). For the purpose of deciding this motion, the court will assume — as has the defendant, see Brief in Support of Delta Air Lines, Inc.'s Motion for Summary Judgment ("Defendant's Summary Judgment Brief") at 1 n. 1 — that, at all relevant times, Schmidt suffered from a "disability," within the ADA's definition of that term. To meet his initial burden under McDonnell Douglas, however, Schmidt must still provide competent evidence that he was qualified for his position as an RSA, and that Delta discharged him because of his disability. See Taylor, 93 F.3d at 162.
To determine whether a plaintiff is otherwise qualified for a given job, the court must conduct a two-part inquiry. First, it must determine whether the plaintiff could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if the court finds that the plaintiff is not able to perform the essential functions of the job, it must determine whether any reasonable accommodation by the employer would enable him to perform those functions. See Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993) (citing Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir. 1991)), cert. denied, 511 U.S. 1011 (1994). The burden lies with Schmidt to show that he is otherwise qualified. See Turco v. Hoechst Celanese Corporation, 101 F.3d 1090, 1093 (5th Cir. 1996); Chandler, 2 F.3d at 1394. Schmidt argues that he was a qualified individual with a disability, and that Delta discriminated against him by firing him after refusing to provide a reasonable accommodation to his mental illness. See Plaintiff's Summary Judgment Brief at 9-10, 13. Delta responds in part that Schmidt was not qualified for his RSA job, because he could not handle 80-100 customer calls per day, as Delta policy required. See Brief in Support of Delta Air Lines, Inc.'s Motion for Summary Judgment ("Defendant's Summary Judgment Brief") at 14-17. Delta further responds that it discharged Schmidt not because of his disability, but because of his poor productivity and his violation of various workplace conduct rules. See id. at 19-21.
a. Essential Function
The record demonstrates — indeed, Schmidt concedes — that, upon his return to Delta in 1996, his productivity declined and he was unable to take as many calls as Delta policy required. See Plaintiff's Appendix at 2. Schmidt admits that he was offered and accepted additional computer training to assist him in improving his productivity but that, despite the additional training, he continually failed to meet Delta's established RSA call-time and call-number productivity requirements. See Defendant's Appendix at 6-7, 118, 131-32. The plaintiff explained in his deposition testimony that, during the period he worked in the Dallas office, he suffered from "short-term memory loss" and from "inability to complete minor tasks," which resulted in his forgetting computer formats, technical procedures, and passenger travel information during customers' calls, thus requiring him to repeat questions and other passenger information. See id.; Plaintiff's Appendix at 2. Lacking the ability to satisfy Delta's high call volume requirement, Schmidt could not perform one of the "essential functions" of his job. See Beaver v. Delta Air Lines, Inc., 43 F. Supp.2d 685, 694 (N.D. Tex. 1999) (concluding that maintaining Delta's productivity and performance standards constitutes an essential function of the RSA position).
b. Reasonable Accommodation
The court must next consider whether any reasonable accommodation would have enabled Schmidt to fulfill Delta's productivity requirements. Schmidt admits that he could not have met Delta's productivity expectations without some accommodation. See Plaintiff's Summary Judgment Brief at 5. He insists that Delta should have accommodated him by (1) lowering the productivity standard from 80-100 calls per day; (2) providing additional computer training; and/or (3) offering him a leave of absence or retirement. See id. at 5, 10. The first accommodation requested by Schmidt — that he be excused from meeting Delta's productivity requirements — "would have required Delta to eliminate the essential functions of the RSA position. The ADA does not require such an accommodation." Beaver, 43 F. Supp.2d at 694 (citing Robertson v. The Neuromedical Center, 161 F.3d 292, 295 (5th Cir. 1998) [, cert. denied, 526 U.S. 1098 (1999)], and Barber v. Nabors Drilling U.S.A., 130 F.3d 702, 709 (5th Cir. 1997)). It is undisputed that Delta provided Schmidt several hours of computer training in May 1996. See Defendant's Appendix at 118, 131-32; Plaintiff's Summary Judgment Brief at 4 n. 1. Schmidt has failed to produce any evidence that he ever requested additional computer training, disability retirement, a leave of absence, or retirement. On the contrary, the record evidence demonstrates that he did not make any of these requests. See id. at 31, 122. "If [an] employee fails to request an accommodation, [his] employer cannot be held liable for failing to provide one." Taylor, 93 F.3d at 165; see also Beaver, 43 F. Supp.2d at 694 n. 13 (a requested accommodation is unreasonable when it is untimely) (citation omitted). An employee's "failure to request a cognizable, reasonable accommodation" entitles an employer to judgment as a matter of law. Burch v. Coca-Cola Co., 119 F.3d 305, 318-20 (5th Cir. 1997), cert. denied, 522 U.S. 1084 (1998).
Moreover, there is no evidence that providing Schmidt additional computer training or placing him on a leave of absence would have allowed him to perform his job duties. Indeed, Schmidt's suggestion that Delta should have placed him on a leave of absence seems to contemplate such a leave not as a short-term process to enable him to meet Delta's productivity standards, but as a precursor to a lengthier disability leave. See Response Brief at 10. Such a leave thus would not be a reasonable accommodation. See Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759-60 (5th Cir. 1996) ("`Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.'") (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)).
Finally, offering Schmidt retirement, as he now requests, see Response Brief at 5, would involve terminating his employment and thus obviously would not constitute a reasonable accommodation. See, e.g., Rogers, 87 F.3d at 759 (holding that "[b]ecause [the plaintiff] could not attend work, he is not a `qualified individual with a disability' under the ADA") (citing, among other authorities, Can v. Reno, 23 F.3d 525, 529-30 (D.C. Cir. 1994) ("coming to work regularly" is an "essential function")).
c. Failure to Engage in the Interactive Process
Schmidt urges that, once he allegedly suggested an accommodation, Delta had a duty under the ADA to engage in an "interactive process" with him to determine an appropriate reasonable accommodation, but that it failed to do so and therefore is liable. See Response Brief at 12-13. This contention is without merit. Once an employee has made a request for an accommodation, the ADA's regulations state that "it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation" to craft a reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). "Courts interpreting the interactive process requirement have held that when an employer's unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA." Loulseged v. Akzo Nobel Incorporated, 178 F.3d 731, 736 (5th Cir. 1999) (citing Taylor v. Phoenixville School District, 174 F.3d 142, 165 (3d Cir.
1999), and Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996)) (emphasis added). However, where, as in the instant case, a plaintiff cannot demonstrate the existence of a reasonable accommodation, "the employer's lack of investigation into reasonable accommodation is unimportant." Willis v. Conopeo, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (citing Moses v. American Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir. 1996) [, cert. denied, 519 U.S. 1118 (1997)]). As discussed previously, the only thing Schmidt testified that he asked for — that he be relieved from Delta's productivity standards — is not a cognizable reasonable accommodation. Nor do any of the accommodations Schmidt suggests in the present case — viz., additional computer training, a leave of absence, or retirement — constitute reasonable accommodations which would enable him to perform the essential functions of his job. Thus, even if it be assumed that Delta had a duty to engage in an interactive process with Schmidt, its apparent failure to do so is — under the particular circumstances of this case — of no moment. The court therefore concludes that, because Schmidt's inability to satisfy Delta's productivity standards prevented him from fulfilling an essential function of his job, and because he has failed to suggest any reasonable accommodation which would enable him to satisfy this productivity standard, he is not a "qualified individual with a disability" within the meaning of the ADA. 42 U.S.C. § 12112(a).
To the extent Schmidt maintains that the failure to engage in the interactive process is itself a violation of the ADA, he is incorrect. The "interactive process is not an end i[n] itself — it is a means to the end of forging reasonable accommodations." Loulseged v. Akzo Nobel Incorporated, 178 F.3d 731, 736 (5th Cir. 1999); accord Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001) (noting that "failure to engage in the interactive process by itself does not give rise to relief.") (citation omitted); Willis v. Conopco, 108 F.3d 282, 285 (11th Cir. 1997) (same) (citation omitted).
2. Proof of Discrimination
Even if Schmidt had raised a genuine fact issue as to whether he was a qualified individual with the disability, he would nevertheless be unable to recover under the ADA because he has not identified any evidence from which a reasonable factfinder could conclude that Delta discriminated against him on the basis of his disability. Delta has produced substantial evidence supporting its claim that its decision to discharge Schmidt was based on legitimate, nondiscriminatory reasons. See Burdine, 450 U.S. at 253. Schmidt does not even dispute the factual accuracy of these reasons: failure to meet Delta's productivity standards, manipulating Delta's phone system to avoid incoming calls, conducting personal business while on duty, taking excessive breaks, and his unprofessional and disruptive workplace outburst on June 27, 1996. See Part I above. Thus, Schmidt cannot demonstrate that Delta's articulated reasons are false, much less that they are pretexts for disability discrimination. Hicks, 509 U.S. at 507-08; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Schmidt's bare speculation and subjective belief that Delta terminated him because of his disability are not sufficient to support a claim for disability discrimination. See Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc) ("It is more than well-settled that an employee's subjective belief that he suffered an adverse employment action as a result of discrimination, without more, is not enough to survive a summary judgment motion. . . .").
Delta was under no obligation to excuse Schmidt's inappropriate outburst as a reasonable accommodation. The ADEA does "not . . . shield the disabled from the consequences of [their] misconduct." Hartog v. Wasatch Academy, 909 F. Supp. 1393, 1401 (D. Utah 1995), aff'd, 129 F.3d 1076 (10th Cir. 1997); see also Hamilton v. Southwestern Bell Telephone Company, 136 F.3d 1047, 1052 (5th Cir. 1998) (hostile outburst at work is not excused by mental disability).
For the reasons set forth above, Delta is entitled to summary judgment on Schmidt's ADA claim.
C. The ADEA and ERISA Claims
As noted previously, Delta seeks summary judgment on all of Schmidt's claims. See Summary Judgment Motion at 1. Schmidt's response seeks denial of Delta's motion only as to the plaintiff's ADA claim. See Plaintiff's Response to Defendant's Motion for Summary Judgment at 1. Delta asserts that this is because Schmidt has "conceded" his ERISA and ADEA claims. See Reply Brief at 1 n. 3. Because the plaintiff has not advised the court otherwise, the court assumes — consistent with Delta's assertion — that he does not oppose Delta's motion for summary judgment on the ERISA and ADEA claims. Delta's summary judgment motion is therefore granted on these claims.
III. CONCLUSION
For the foregoing reasons, Delta's summary judgment motion is GRANTED in all respects. Judgment will be entered that the plaintiff take nothing on his claims.