Opinion
Civil Action No. 08-4464.
October 21, 2009.
Gregory T. Juge, Equal Employment Opportunity Commission, New Orleans, LA, for Plaintiff.
Keith M. Pyburn, Jr., Scott David Schneider, Timothy H. Scott, Fisher Phillips, LLP, New Orleans, LA, for Defendant.
Jeffrey T. Greenberg, Jeffrey T. Greenberg, APLC, New Orleans, LA, for Intervenor, Marlene Babin.
ORDER AND REASONS
Before the Court are three motions: (1) the EEOC's motion for partial summary judgment and (2) the defendant's motion for summary judgment. For the reasons that follow, the motions are DENIED.
Background
This lawsuit arises out of a makeup artist's termination from employment following her return, with a broken wrist, from leave she took that was associated with medical issues related to her ulcerative colitis.
In November 2000 Marlene Babin was hired by Saks Fifth Avenue, where she worked initially as a salesperson and then she moved to the position of makeup artist at the Estee Lauder counter in 2001. As a makeup artist, Marlene Babin was responsible for applying customers' makeup, maintaining an adequate stock of makeup in her case, cleaning brushes and applicators, completing her goals by promoting Estee Lauder products, and making sales.
Since 2001, Estee Lauder reimbursed Saks for one-half of Ms. Babin's hourly rate for the hours that she worked; however, Ms. Babin was an employee of Saks.
Applying makeup was Ms. Babin's primary function; she typically performed an average of eight to nine makeovers each day.
Once she became a makeup artist working with Estee Lauder cosmetics, Ms. Babin reported to two co-supervisors, Christine Cooney and Marie Joyce (both of whom were cosmetics department managers). Cooney and Joyce reported to Kathryn Scurlock (assistant general manager of merchandise), who, in turn, reported to the general manager of the New Orleans store, Carolyn Elder. While each Saks store is typically assigned a human resource director, in 2004 the New Orleans store's human resource director left the company. Until a replacement was hired in late February 2005, Larry Dauterive (assistant general manager of operations) handled those duties as well as his own. Gina Gagliano, a human resources assistant, worked with Dauterive in the human resources department. Margaret Phelan, who worked at Saks' New York offices, was the regional human resource director for the New Orleans region. Ulcerative Colitis Diagnosis
Ms. Babin asserts that she understood Ms. Joyce to be her direct supervisor.
The Court notes that Ms. Babin's declaration submitted in support of the EEOC's motion for partial summary judgment goes into considerably more detail than her deposition testimony. As noted later, the Court may not weigh the evidence or make credibility determinations; accordingly, the Court considers as part of the record the statements made in her declaration to the extent that they are not inconsistent with her deposition testimony.
About a year before she began working at Saks, in October 1999, Ms. Babin was diagnosed with ulcerative colitis. She was then 46 years old. She has not produced formed stool since 1999 and has consistently experienced severe abdominal pain shortly after eating, and continually has suffered painful diarrhea as many as 10 15 to 30 times daily. Unable to control her bowels, she has soiled herself on many occasions, and has often had to wear adult diapers. She must plan her activities around when she can eat to ensure that she will be near a bathroom. If she were to eat, as an average person does, three times a day with snacks, Ms. Babin says she would have diarrhea 60 times per day, and experience severe, constant abdominal pain.
Ulcerative colitis is described by the Mayo Clinic as:
Ulcerative colitis . . . causes chronic inflammation of the digestive tract, [and] is characterized by abdominal pain and diarrhea. [It] can be debilitating and sometimes can lead to life-threatening complications. [It] usually affects only the innermost lining of your large intestine (colon) and rectum. It occurs only through continuous stretches of your colon. . . . There's no known cure . . ., but therapies are available that may dramatically reduce the signs and symptoms of ulcerative colitis and even bring about a long-term remission.Http://www.mayoclinic.com/health/ulcerative%20colitis/DS00598.
From 1999 until February 2004, Ms. Babin experienced chronic severe abdominal pain on a daily basis and her food intake was severely restricted. She would routinely eat only once a day, after work, in order to prevent the problems, pain, and frequency and embarrassment associated with her condition. After eating, she would often have to use the bathroom 10 to 18 times. She experienced severe bleeding in the course of eliminating waste; she routinely had to soak in a hot tub of water numerous times per night to relieve the pain in her rectal area that resulted from the frequent diarrhea and bleeding.
Medical Leaves of Absence
In February 2004 Ms. Babin's ulcerative colitis reached an acute stage: she was admitted to the hospital on February 18, 2004, beginning an extended period of medical leave. She was hospitalized for two months. She underwent surgery on March 4, 2004. In the first surgery, her large intestines were removed and a colostomy bag was temporarily implanted. Her rectum was eventually removed and replaced with tissue from her small intestine.
Since February 2004, as a result of her treatment, Ms. Babin has been unable to have sexual intercourse. She anticipates that she will never be able to have sexual intercourse again, due to the effects of the surgeries: she has had four surgeries in the rectal area and, as a result, that region of her body, including her vaginal area, experiences extreme pain from physical contact.
Ms. Babin has unsuccessfully attempted to have sex with her fiancé. She has sought assistance from her Colon and Rectal Surgeon, Dr. Beck, who prescribed a cream which he thought might make intercourse possible. It did not; it is excruciatingly painful for Ms. Babin to be touched in her vaginal area and, thus, intercourse is impossible.
The first period of medical leave from Saks due to treatment of (and recovery from the surgery associated with) colitis lasted from February 18, 2004 through June 22, 2004. During most of this four month period, Ms. Babin was covered by an employer-provided short-term disability policy, toward which she paid premiums in the form of wage withholdings. Her leave of absence was approved under the short-term disability policy; she received income insurance in the amount of half-pay.
Even after returning to work in June 2004, Ms. Babin continued to experience complications from her condition and the surgery intended to correct it. During the 10 months following February 2004 (roughly, February to December), Ms. Babin underwent a total of five surgeries and was given 11 pints of blood. Saks approved three additional medical leaves of absence under the short-term disability policy: from August 16, 2004 to September 2, 2004 (third surgery, implant of second colostomy bag); from November 4, 2004 to November 21, 2004 (fourth surgery connection of J pouch to rectum); and from December 24, 2004 to February 9, 2005 (fifth surgery, small bowel obstruction). During these periods of leave, Ms. Babin was unable to perform any work, but she would return to work after she recovered from the surgeries.
From February 2004 through February 2005, Ms. Babin was in the hospital for a total of approximately three months. During those hospitalizations (and for some period following hospitalizations), Ms. Babin was unable to care for herself. Saks kept Ms. Babin's position open for the entire period she was on leave.
During Ms. Babin's employment with Saks, its eligible employees were entitled to 26 weeks of short term disability leave in any 12-month period. An employee is eligible if she is "unable to work due to a personal illness or injury of short duration." (Under the policy, eligibility is not determined based on the employee's incapacity to perform the functions of the employee's own specific position.) According to Saks' statements to the EEOC during its investigation of Ms. Babin's charge of discrimination, Ms. Babin "had been out on leave total of 26 weeks" from February 2004 to February 2005. During the short-term disability leaves of absence approved by Saks from February 2004 to February 2005, Ms. Babin was paid a 50% benefit rate, based on a benefit rate of $19.00 an hour, as an income replacement benefit.
Saks approved Ms. Babin for a leave of absence under the short-term disability policy on at least three occasions. Under the short-term disability policy, to be eligible for benefits, an employee must be unable to work due to an injury or illness. On January 1, 2005, Ms. Babin became entitled to a new 26 weeks of short-term disability leave for the year, subject to meeting the eligibility requirements. According to Saks' records, Ms. Babin's final leave period was initially approved through January 21, 2005. At some point in January, local management (Scurlock and Dauterive) contacted Margaret Phelan, the regional human resources director, to determine how to handle Ms. Babin's ongoing leave. According to Saks, Dauterive had determined that, as of the week ending January 29, 2005, Ms. Babin had taken twenty-five weeks of leave dating back to February 18, 2004. On January 27, 2005, Saks management (Dauterive) told Ms. Babin that her 26 weeks of short-term disability leave for the year would expire, and she would be fired if she did not return to work the following week. Although her doctor originally determined that she would be released to work on March 18, 2005, following that phone call with Saks management, Ms. Babin visited her physician and sought a release; her doctor released her to return on February 9, 2005 (the day after Mardi Gras), without restrictions.
On February 6, 2005, after her treating doctor released her to return to work, Ms. Babin fell and broke her left wrist. Ms. Babin went to the emergency room in Baton Rouge that day, and then went to see an orthopedic specialist, Dr. George, on February 7, 2005. Surgery was recommended, and was scheduled for February 15, 2005. A note from Dr. George's office suggested that she was restricted from using her left hand, but he also gave her a doctor's note for the purpose of enabling her to go back to work. Ms. Babin states that she was able to use the fingers on her left hand without experiencing additional pain. She did not contact anyone at Saks to inform them that she had broken her wrist.
Termination
Ms. Babin reported to work on February 9, 2005; she was wearing a brace (but no cast or sling). Ms. Babin performed her job duties on February 9, 10, 11, 12, 13, and 14. At some point after Ms. Babin returned to work, Cooney told Scurlock and Dauterive that Babin was having difficulty. Scurlock and Dauterive spoke with Phelan, who decided to terminate Babin because she had exhausted all of her available leave and because Saks was unable to accommodate her working as a makeup artist with a broken wrist. On February 15, one of Ms. Babin's weekend days off, she had surgery on her wrist; she was also off on February 16. She reported back to work on February 17, wearing a beige brace in place of the black one she had before the surgery; she was told to report to Dauterive's office. Dauterive told Ms. Babin that she was fired; in a memo to Ms. Babin, Dauterive states:
This is to notify you that as discussed previously, you have exhausted all available leave time with Saks Fifth Avenue. It also serves to inform you that we cannot accommodate your working as a Make-Up Artist with a broken arm. At this time, Saks Fifth Avenue will be terminating employment, effective immediately.
Ms. Babin asked Dauterive if she could take any other forms of leave, paid or unpaid; he responded that she could not but stated that she could reapply for her position when her cast was removed. At the time of her discharge, Ms. Babin had been aware that Saks had had an open makeup artist position at the La Mer counter since fall 2004. On March 7, 2005, Ms. Babin's cast was removed. She went to Saks on March 8, 2005 to apply for the La Mer position. (According to Ms. Babin, her former position at the Estee Lauder counter was not posted as open at that time.) About six weeks later, on April 28, 2005, Ms. Babin was interviewed for the La Mer position. That same day, Ms. Bolling sent her a letter advising her that Saks did not have any openings that matched Babin's experience.
Saks filled Babin's former position as makeup artist with Estee Lauder, sometime after Ms. Babin's cast was removed, either on March 20 or on May 22, 2005, with Leslie Hubbs, who was not disabled.
Ms. Babin filed a charge of discrimination with the EEOC, asserting violations of Title I of the Americans with Disabilities Act by Saks. On September 24, 2008 following an investigation, the EEOC sued Saks pursuant to Title I of the ADA and Title I of the Civil Rights Act of 1991, asserting that Marlene Babin was wrongfully terminated because of her ulcerative colitis condition. The EEOC seeks injunctive relief, equitable relief, as well as punitive and other damages for Ms. Babin. Ms. Babin has intervened in the action, seeking injunctive relief, compensatory damages to recover her economic losses, loss of income, benefits, humiliation, embarrassment, mental and emotional pain and suffering, inconvenience, and loss of enjoyment of life, punitive damages and attorney's fees.
The EEOC now moves for partial summary judgment that Ms. Babin's ulcerative colitis is a disability that substantially limited one or more major life activities. Saks seeks summary judgment dismissing the EEOC's claim.
I. Summary Judgment A. Rule 56 Standard
Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party.See Donaghey v. Ocean Drilling Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims.Id. Hearsay evidence and unsworn documents do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.
B. Competent Summary Judgment Evidence
The defendant urges the Court to disregard Ms. Babin's declaration, which was submitted by the EEOC in support of its motion for partial summary judgment. Saks insists that Ms. Babin "directly contradicts" her prior sworn testimony, and invokesCopeland v. Wasserstein, Perella Co., 278 F.3d 472 (5th Cir. 2002) in support of its assertion that the Court should disregard Ms. Babin's declaration. In Copeland, the Fifth Circuit observed that an explanation is required when the sole evidence to create a genuine issue of material fact is an affidavit that conflicts with deposition testimony. Id. at 482. The EEOC counters that Ms. Babin's declaration is consistent with her deposition testimony, and points out that courts routinely deny motions to strike that are based on alleged inconsistencies between deposition and affidavit testimony because such alleged inconsistencies go to the weight of the evidence rather than its admissibility. See,e.g., Robison v. Cardiology Assocs., L.L.C., No. 05-1581, 2008 WL 294490, at *1-2 (W.D. La. Feb. 1, 2008). While Ms. Babin's declaration goes into considerable more detail than her purportedly seven hour deposition, the Court is not persuaded that, in her declaration, Ms. Babin "directly contradicts" statements made during her deposition. Moreover, the Fifth Circuit has observed:
In reviewing a motion for summary judgment the court must consider all of the evidence before it, including affidavits that conflict with deposition testimony. A genuine issue of material fact may be raised by such affidavit "even if it conflicts with earlier testimony in the party's deposition." Kenneth-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980) (citing 6 Moore's Federal Practice ¶ 56-15[4] at 56-522 (2d Ed.)). . . . To the extent they exist, discrepancies in those averments present credibility issues properly put before the trier-of-fact. [Id. at 894.] Credibility assessments are not fit grist for the summary judgment mill.Dibidale of Louisiana, Inc. v. American Bank Trust Co., New Orleans, 916 F.2d 300, 307 (5th Cir. 1990). The Court will not disregard Ms. Babin's declaration on summary judgment.
Saks also urges the Court to disregard the declaration of Dr. Beck, who is Ms. Babin's current treating physician, on the ground that Dr. Beck makes numerous statements that exceed the scope of his treatment and that were formulated for the purpose of trial. As a treating physician and not a retained expert, Dr. Beck may testify only about the actual treatment rendered to Ms. Babin and opinions derived from the treatment of her ulcerative colitis. Accordingly, to the extent that certain statements made by Dr. Beck do exceed the scope of his treatment (and therefore constitute expert opinions) or are not otherwise made on personal knowledge, the Court will disregard those statements. See Knorr v. Dillard's Store Services, Inc., No. 04-3208, 2005 WL 2060905, at *3 (E.D. La. Aug. 22, 2005) (Vance, J.) (denying defendant's motion to strike plaintiff's treating physicians, but limiting treating physicians' testimony to scope of actual treatment rendered to plaintiff and opinions derived therefrom).
II.
The Americans with Disabilities Act, 42 U.S.C. § 12102 et seq., prohibits an employer from discriminating 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). Under the ADA, "a qualified individual with a disability" is "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).
A. Prima Facie Case of Discriminatory Discharge
When no direct evidence of discrimination is offered, the Court applies the McDonnell Douglas burden-shifting framework to assess ADA violations. EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 615 (5th Cir. 2009) (citation omitted). Under that framework, the plaintiff must first make a prima facie showing of an ADA violation by establishing that: (1) she has a "disability"; (2) she is "qualified" for her job; and (3) she suffered an adverse employment action on account of her disability; and (4) she was replaced by or treated less favorably than non-disabled employees. Id. (citation omitted). Once the plaintiff makes a prima facie case, a presumption of discrimination arises, and the burden shifts to the employer to rebut this presumption by articulating a legitimate, non-discriminatory reason for the termination. If the employer meets this burden of production, the plaintiff must then offer evidence sufficient to create a genuine issue of material fact as to whether the defendant's articulated reason is either (1) a mere pretext for discrimination or (2) one reason for the decision, but discrimination was nevertheless the motivating factor for the decision. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004).
1. Was Ms. Babin "Disabled" Under the ADA?
An employee may be disabled under the ADA in one of three ways. The ADA defines "disability" as:
(A) a physical or mental impairment that substantially limits one of more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.42 U.S.C. § 12102(2). The parties do not dispute that Ms. Babin has ulcerative colitis, but they dispute whether the effect of the impairment was substantially limiting on her life. Specifically, the EEOC suggests that her condition substantially limited her in various major life activities, including waste elimination, working, caring for herself and interacting with others, eating and digesting food, and sexual intercourse.
The ADA does not expressly define "substantially limits" but courts have consulted the EEOC regulations for guidance. A substantially limiting impairment is determined with reference to (1) the nature and severity of the impairment, (2) its duration or expected duration, (3) its permanent or expected permanent long-term impact. 29 C.F.R. § 1630.2(j)(2). To determine whether an individual is substantially limited in a major life activity, the Court must conduct an individualized inquiry, and must consider how well an average person in the general population can perform the activity. EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 615 n. 6 (5th Cir. 2009); EEOC v. E.I. Du Pont de Nemours, 347 F. Supp. 2d 284, 289 (E.D. La. 2004) (Vance, J.) (citation omitted). The Fifth Circuit has observed that "[m]any courts have recognized that relapsing-remitting conditions like . . . colitis can constitute ADA disabilities depending on the nature of each individual case." Chevron Phillips Chemical, 570 F.3d at 618. The relevant time for assessing the existence of a disability is the time of the adverse employment action. Id.
The EEOC asserts that Ms. Babin was substantially limited in various major life activities, including waste elimination, working, caring for oneself and interaction with others, eating and digestion, and sexual intercourse. Saks insists that Ms. Babin was not substantially limited in any major life activity. Because the record evidence shows an issue of material fact as to the threshold issue, whether Ms. Babin was disabled — whether Ms. Babin's ulcerative colitis substantially limited her in at least one of these major life activities — Ms. Babin raises a genuine issue of fact as to whether she is disabled under the ADA. Because the record shows that a genuine issue of material fact as to whether Ms. Babin was substantially limited in waste elimination, the Court need not determine at this time whether she raises a triable issue on the other asserted major life activities.
(a) Waste Elimination
Waste elimination has understandably been recognized as a major life activity. Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249, 255 (4th Cir. 2006). Indeed, Saks assumes for the purposes of the cross-motions that the elimination of waste is indeed a major life activity under the ADA, but asserts that there is no disputed issue of material fact suggesting that Ms. Babin's ulcerative colitis substantially limited her ability to eliminate waste. The Court disagrees.
While the evidence in the record does not rise to the level of establishing, as a matter of law, that Ms. Babin's ulcerative colitis substantially limited her ability to eliminate waste (as the EEOC insists), a genuine issue of material fact exists, considering all of the medical and other sworn evidence submitted, and renders summary relief inappropriate. It is undisputed that Ms. Babin was diagnosed with ulcerative colitis in 1999 and that ulcerative colitis, to oversimplify, is a chronic disease that affects the large intestine and digestive system and causes abdominal cramping, increased frequency of bowel movements, diarrhea, abdominal pain, and rectal bleeding.
Saks argues that Babin's testimony that her range of bowel movements fluctuated between 10 to 18 per day falls short of showing that her condition substantially limited her ability to eliminate waste. Saks then focuses on how Ms. Babin worked without difficulties (and was able to perform all of her job duties without accommodation) for more than three years at Saks with her condition and the only times she missed work was in connection with her various surgeries. Saks' focus on Ms. Babin's ability to do her job is misplaced. As the Fifth Circuit has observed:
Considering plaintiffs' abilities to perform their jobs as evidence weighing against finding that they are disabled under the ADA would create an impossible catch-22 for plaintiffs: if their disabilities prevented them from doing their jobs altogether they would not be qualified individuals for the job under the ADA, and if they were able to work through their disabilities they would then not be considered disabled.EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 619 (5th Cir. 2009). Saks does not dispute that ulcerative colitis is a chronic disease of indefinite duration for which there is no known cure. Ms. Babin's ability to do her job while experiencing her symptoms does not preclude a determination that she was disabled under the ADA. See id. Saks seems to ignore the Fifth Circuit's wisdom in Chevron Phillips.
Saks' view of the summary judgment record is limited to the point of distortion: Ms. Babin testified that she used the bathroom approximately 10 to 18 times a day. Her former treating physician, Dr. Tannebaum, testified that Ms. Babin suffered from a "persistent" and "recalcitrant" case of colitis, in which her symptoms included increased frequency and urgency in eliminating waste, including at times "persistent . . . bleeding, cramping, and diarrhea." The statements made by Ms. Babin in her declaration simply corroborate in detail the other evidence before the Court; for example, Ms. Babin asserts that she has not produced formed stool since 1999, that she must plan all of her activities around when she can eat because of the frequency and urgency with which she experiences diarrhea; she experiences severe rectal pain during and after excretion and has many times had to soak in baths to relieve the pain she experiences when she goes to the bathroom. The record evidence, compared to an average person's experience, at the very least, establishes a genuine issue of material fact regarding whether Ms. Babin's ulcerative colitis substantially limits her ability to eliminate waste.
2. Was Ms. Babin Otherwise "Qualified"?
Even having shown a jury question on whether Ms. Babin was "disabled", a prima facie showing must also be made that the employee was a "qualified individual with a disability." A "qualified individual" is an employee who can perform the "essential functions" of her job "with or without reasonable accommodation." 42 U.S.C. § 12111(8). Saks does not address this element of the EEOC's prima facie case and, therefore, the Court assumes that there is no dispute that Ms. Babin was otherwise qualified to perform the essential functions of her duties as makeup artist.
3. Was Babin fired because of her disability?
The ADA prohibits the discharge of an employee because of disability. 42 U.S.C. § 12112(a). The EEOC and Ms. Babin assert that she was terminated because of her ulcerative colitis. The record shows that Ms. Babin took a significant amount of short term disability leave time because of her ulcerative colitis. Indeed, it is undisputed that Saks reached out to Ms. Babin while she was on leave and told her that she was required to return by a certain date or risk termination; Ms. Babin returned by that date but was nonetheless fired shortly thereafter. On February 17, 2005 a memo with subject line TERMINATION OF EMPLOYMENT from Larry Dauterive (Assistant General Manager, Operations) to Ms. Babin stated:
This is to notify you that as discussed previously, you have exhausted all available leave time with Saks Fifth Avenue. It also serves to inform you that we cannot accommodate your working as a Make-Up Artist with a broken arm. At this time, Saks Fifth Avenue will be terminating your employment, effective immediately.
Saks asserts that the EEOC cannot provide evidence of discriminatory motive but then simply assumes that it can be done for the purpose of its motion and moves on to consider the next phase of the McDonnell Douglas burden-shifting framework. The EEOC counters that (1) Saks' reasons for firing Ms. Babin are false and have shifted throughout the course of its investigation and this litigation and (2) similarly situated makeup artists or other employees that performed makeovers while they had broken arms or wrist problems were not fired. Viewing the record in the light most favorable to Ms. Babin and the EEOC, the Court finds that a juror could reasonably infer that Ms. Babin was fired for reasons relating to her disability.
4. Was Ms. Babin replaced by a non-disabled employee?
Again, Saks does not appear to dispute this fact: Ms. Babin was replaced with Leslie Hubbs, a non-disabled person. The EEOC also points out that Saks left Ms. Babin's position open for somewhere between one and three months before replacing her with Ms. Hubbs. Because the EEOC has raised genuine issues of material fact precluding summary judgment on its prima facie case of disability discrimination, or at least Saks does not dispute that such issues are raised on certain elements, the Court next considers Saks' articulated reasons for firing Ms. Babin.
B. Legitimate, Non-Discriminatory Reason for Termination
Saks contends that it provided Ms. Babin with 26 weeks of leave due to her colitis dating back to February 18, 2004 and that, prior to the expiration of the 26-week period, management told Ms. Babin that she needed to return by February 9, 2005. That she did, but she did so with a broken wrist. Notwithstanding the undisputed evidence that Ms. Babin worked on February 9, 10, 11, 12, 13, and 14 with no complaints, Saks fired her, citing as reasons (1) her exhaustion of 26 weeks of leave; and (2) Saks' inability to accommodate her working as a makeup artist with a broken wrist.
While the EEOC disputes the veracity of these articulated reasons, they at the least on their face seem to be legitimate, non-discriminatory reasons for terminating an employee. Thus, Saks has met its burden of production, and the burden shifts to the EEOC to prove that the stated reasons for termination were pretextual or were simply one reason for the decision but discrimination was nonetheless a motive.
C. Pretext for Discrimination
The EEOC insists that the record evidence undermines Saks' asserted reasons for firing Ms. Babin: she did not use 26 weeks of leave and that Ms. Babin was able to perform her job duties with her broken wrist; accordingly, Saks' articulated reasons for firing her are false and pretextual. Thus, says the EEOC, a jury has an evidentiary basis to reject Saks' stated reasons and infer discrimination as the true motivating factor for her termination. The Court agrees. See Gee v. Principi, 289 F.3d 342, 347-78 (5th Cir. 2002) (where plaintiff provides sufficient evidence to cast doubt on an otherwise legitimate explanation for an adverse employment action, a reasonable factfinder could conclude that the seemingly legitimate explanation is false; "[r]esolution of this disputed fact is properly within the province of the trier of fact"). Viewing the vast summary judgment record in the light most favorable to the EEOC and Ms. Babin, and mindful that a jury could determine that the employer had mixed motives or hid its discriminatory intent behind seemingly neutral rationales, the Court finds that a juror could reasonably infer that Saks' articulated reasons for firing Ms. Babin were pretextual or were simply one motivation for her termination.
D. Effect of Declining Treatment on ADA Claim
Saks contends that Babin's decision to discontinue use of steroids precludes her ADA claim. Viewing the evidence in the light most favorable to the EEOC and Ms. Babin, a reasonable juror could conclude that her discontinuance of steroids did not create her disability; Saks fails to point to evidence in the record that would persuade this Court to conclude, as a matter of law, that Ms. Babin's "refusal" to take steroids created her condition.
E. Effect of Application for Disability Benefits on ADA Claim
Saks also contends that Ms. Babin's application for, and receipt of, social security disability benefits precludes her ADA claim. On this record, the Court disagrees. The Supreme Court has observed that an SSDI claim may coexist with an ADA claim, with sufficient explanation. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 798 (1999) (receipt of social security benefits does not preclude person as a matter of law from being a qualified person with a disability under the ADA; to survive summary judgment, ADA plaintiff must explain why SSDI contention is consistent with her ADA claim). Ms. Babin testified that she believed she could work, if she was permitted as an accommodation of employment the ability to take frequent bathroom breaks and if she was permitted to take leave if surgery became necessary. In viewing the record in the light most favorable to the plaintiff, Saks has not shown that Ms. Babin's social security disabled status is inconsistent with her being capable of working, with accommodation.
In conclusion, given the point-counterpoint of fact-slinging in this extensive and tortuous record, summary relief in this case is wholly unjustifiable.
Accordingly, because genuine issues of material fact preclude summary relief, both the EEOC's motion and the defendant's motion are DENIED.
While both medications and surgery have been used to treat ulcerative colitis, surgery is reserved for those with severe inflammation and life-threatening complication.Http://www.medicinenet.com/ulcerative_colitis/page4.htm
Ms. Babin has unsuccessfully attempted to have sex with her fiancé. She has sought assistance from her Colon and Rectal Surgeon, Dr. Beck, who prescribed a cream which he thought might make intercourse possible. It did not; it is excruciatingly painful for Ms. Babin to be touched in her vaginal area and, thus, intercourse is impossible.