Having considered the memoranda and exhibits of Counsel *fn1 and the applicable law Court finds that there are no genuine issues of material fact and Defendant is entitled to Judgment as a matter of law.
I. Background
On August 22, 1994 Plaintiff was hired by Treasure Chest as a casino floor or "pit" supervisor. In December 1994 Plaintiff received several Disciplinary Notices for absenteeism and tardiness. *fn2 (See Defendant's Ex. A Parks Affidavit Attachments 6-10). Plaintiff claims that he submitted medical excuses for some of these incidents. (See Plaintiff's Dep. pp. 120 130).
On December 31, 1994 Plaintiff met with Treasure Chest management about his unacceptable attendance record. At that meeting he indicated that he had an alcohol problem and he was directed to seek help through Human Resources. On January 4, 1995 Plaintiff received another Disciplinary Notice and was suspended pending investigation for habitual absenteeism.
Defendant points out that Plaintiff never indicated on any of the Disciplinary Forms which he signed that he had any mental or physical impairment other than an alcohol problem. On the other hand Plaintiff contends that he informed individuals at Treasure Chest that he was having problems and "they sent [him] to Dr. Freed . . . to be checked and evaluated." (Plaintiff's Dep. 56 68-69 76).
Plaintiff also claims he asked for a transfer to another job at the casino. (Plaintiff's Dep. 57 71 162 165 182). Regarding a transfer he specifically testified that:
I didn't have a particular job in mind. I would have tried anything. There were positions available. I was sure that I could fill whether it was in Human Resources whether it was you know casino host or guest services whatever benefits department. I didn't know exactly what was listed and what was available but I felt sure that there was something I could go do for a while until all of this could be straightened out and smoothed out and I could get my head back together and get back on my feet I didn't want to just outright quit you know stop work altogether and go on disability leave . . . .
(Plaintiff's Dep. 162).
On January 11 and 31 1995 Plaintiff saw Charles R. Freed Jr. M.D. a psychiatrist for outpatient evaluation and treatment. Dr. Freed found that Plaintiff needed "individual psychotherapy IPT for post-traumatic stress disorder and the alcohol abuse and return on an as-needed basis." (Freed Dep. 20 56 61). Dr. Freed also advised Plaintiff to continue taking Prozac but discontinue taking Valium. (Id.).
When asked if he thought Plaintiff was able to work in general Dr. Freed responded:
Well that is a difficult question to answer and the reason it is difficult to answer is because I am not certain if there were actual stressors on the job that he was responding to or in a more general and global sense he was beginning to regress and deteriorate in function in which case no matter where he went he would have had difficulties.
Either one is a possibility and I don't know that professionally I had believed that one was more important than the other.
(Freed Dep. 31).
When Dr. Freed was asked whether Plaintiff was able to have gainful employment outside Treasure Chest assuming that Plaintiff was employed by other casinos subsequent to his hospitalization Dr. Freed responded:
I think given the fact his focus was on conflicts at that particular place of employment that I would have felt he would be able to work at another location.
(Freed Dep. 32). And when asked if Plaintiff was able to carry out to a substantial degree his major life activities he responded:
For the most part he was able to do that. That is why when I saw him on 1/11/95 I did not recommend hospitalization.
It was only after I perceived that there was deterioration in his condition combined with the fact that it did not sound to me like he was able to hook up with the social worker to be actively involved in treatment and monitoring of his response to treatment that I recommended he go inpatient.
(Freed Dep. 33). Dr. Freed agreed that plaintiff's ability to conduct his life was being impaired by his problems. (Freed Dep. 60-61).
Dr. Freed also recommended inpatient hospitalization to determine whether Plaintiff's problem that prevented him from working at Treasure Chest was "purely psychological in nature" given Dr. Freed's suspicions about what Plaintiff told him about his past experiences with the National Security Administration and the Drug Enforcement Agency. *fn3 (Freed Dep. 33-35).
Dr. Freed was asked if he thought it would have been possible for Plaintiff to have changed his mind about his ability to work with the management of Treasure Chest and return to Treasure Chest as a productive and healthy employee if Plaintiff had actively participated in treatment with him. Dr. Freed responded:
I think that it a possibility. I think that it is likely that he would have appreciated a significant reduction in the level of conflict which he perceived.
I don't think that it could have been completely accomplished without the participation of Treasure Chest. But had they been willing to participate -- and I am not saying they weren't -- as a matter of fact I think that had they known more information more of what was going on I would have difficulty in understanding why they would not want to go out of their way to help because this not only helps the employee but it helps the organization as I see it.
(Freed Dep. 66-67).
On January 27, 1995 Plaintiff failed to report to work. Plaintiff claims that his truck was stolen and he had no other way to get to work. (See Plaintiff's Dep. p. 203). On January 28, 1995 Plaintiff was suspended pending investigation of this incident.
On February 2, 1995 Plaintiff was admitted to DePaul Hospital for in-patient psychological evaluations. He was seen by Joel Abrahams Ph.D. a psychologist on February 4 and 6 1995. Dr. Abrahams found Plaintiff to have minor depression or "Dysthymia". He did not find compelling evidence of post-traumatic stress disorder. *fn4 In terms of personality structure he found Plaintiff to have narcissistic and antisocial features which in combination were causing Plaintiff defaults in adjustment. (Abrahams Dep. 21-22). *fn5
Dr. Abrahams also testified that Plaintiff's claims regarding the intentions of his employer to dismiss him did not appear to be delusional but rather in "the range of normal human experiences when an employer and employee are starting to disengage in an unfriendly manner." (Abrahams Dep. 36). He also reported that Plaintiff's claims may have been exaggerated by his grandiosity and sense of entitlement. (Id. 36-37).
Regarding Plaintiff's ability to work Dr. Abrahams testified:
There was nothing that I saw precluded gainful employment at the time I saw him.
(Abrahams Dep. 54). But when Dr. Abrahams was asked whether Plaintiff was able to carry out all of his major life activities such as working walking talking he opined that:
I guess the question is : At what level? He was having interpersonal difficulties.
Whether that was a personal environment interaction problem or something that might have been more chronic I have no way of knowing.
My guess is that continued employment at the Treasure Chest was probably out of the question because of the conflict not so much because of the psychological problems.
(Abrahams Dep. 55).
When asked to explain what he meant by "interpersonal difficulties" Dr. Abrahams stated:
Within a working environment personal difficulties would be problems getting along with co-workers those who supervise ... ranging from insignificant differences of opinion or just a general dislike of someone to conflicts over how a job is to be done who has the final decision without being able to resolve these in an amicable fashion.
Interpersonal difficulties could certainly interfere with one's ability to perform one's job but not necessarily.
(Abrahams Dep. 72). Dr. Abrahams also testified that "it would be fair to say that someone with a personality disorder who was referred for inpatient treatment was really having problems brought on by the personality disorder. (Id. 75 82).
Dr. Abrahams recommended psychotherapy antidepressant medication. (Abrahams Dep. 80-81)
On February 6, 1995 (while Plaintiff was still hospitalized at DePaul's) Treasure Chest terminated Plaintiff based on its investigation of the January 27, 1995 incident and Plaintiff's "record of habitual absenteeism." (See Defendant's Ex. A Parks' Affidavit Paras. 22 & 23).
It is unclear from the record as it now stands what role Treasure Chest (through management Human Resources or its health or disability insurer) played in the referral of Plaintiff to Dr. Freed and admission into DePaul Hospital. It is also unclear from the record what Treasure Chest knew about Plaintiff's psychiatric or psychological problems.
Since his termination from the Treasure Chest Plaintiff has held the following casino jobs: pit supervisor and floor supervisor at River City Casino beginning in March 1995; dealer for Hollywood Casino beginning in October 1995; floor supervisor at Grand Casino in May 1996; and supervising table games at Argosy Casino from October 1996 to present.
On June 30, 1995 Plaintiff filed a charge with the Equal Employment Opportunity Commission claiming discrimination in violation of the Americans with Disability Act ("ADA") 42 U.S.C. SEC. 12101 et seq. On June 4, 1996 he filed this lawsuit claiming he had been terminated from and otherwise discriminated against in his employment by Treasure Chest because of his disability in violation of the ADA the Civil Rights Act of 1964 as amended 42 U.S.C. SEC.2000 et seq. (Title VII) Louisiana's Anti-Discrimination Statute LSA-R.S. 23:1006 and Louisiana Civil Code Article 2315.
Defendant moves for summary judgment arguing that:
(a) Plaintiff cannot prove a prima facie case of disability under the ADA or LSA-R.S. 23:1006 because:
(i) Plaintiff is not a member of the class of persons protected by these statutes; and
(ii) Treasure Chest had legitimate nondiscriminatory reasons for its employment actions; and
(b) Plaintiff has failed to state any claims under Title VII and Louisiana Civil Code Article 2315.
II. Legal Analysis
Americans with Disabilities Act Claim
The ADA prohibits discrimination in employment against persons with a disability providing that:
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. SEC. 12112(a).
"Discrimination" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . ." 42 U.S.C. SEC.12112(b)(5)(A).
To prevail on his ADA claim (and likewise on his claim asserted under LSA-R.S. 23:1006) Plaintiff must prove that:
(1) he had a covered disability;
(2) he is a qualified individual who with or without reasonable accommodation can perform the essential elements of the position in question; and
(3) that he suffered an adverse employment action solely because of his disability.
Rizzo v. Children's World Learning Centers Inc. 84 F.3d 758 763 (5th Cir.1996).
Is Plaintiff disabled under the ADA?
If Plaintiff is not disabled as defined under the ADA he would not be entitled to a reasonable accommodation nor would his qualification for the position sought be relevant. Thus the first issue to be addressed is whether Plaintiff has submitted sufficient summary judgment evidence to create a genuine issue as to whether or not he was "disabled."
The term "disability" as used in the ADA means:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of [the disabled] individual;
(B) a record of having such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. SEC. 12102(2).
Substantial Limitation: The ADA defines neither "substantially limits" nor "major life activities " but the regulations promulgated by the EEOC under the ADA provide significant guidance. *fn6 Dutcher v. Ingalls Shipbuilding 53 F.3d 723 726 (5th Cir. 1995).6
"Substantially limits" generally means (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition manner or duration under which an individual can perform a particular major life activity as compared to the condition manner or duration under which the average person in the general population can perform the same major life activity. 29 C.F.R. 1630.2(j)(1).
"Major life activities" in the ADA context means "caring for oneself performing manual tasks walking seeing hearing speaking breathing learning and working." 29 C.F.R. SEC. 1630.2(i).
Here Plaintiff argues that his mental problems substantially limited him from the major activity of working as a pit supervisor at Treasure Chest. This court disagrees.
"The term substantially limits [also] means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training skills and abilities." 29 C.F.R. SEC. 1630.2(j)(3). "The inability to perform a single particular job does not constitute substantial limitation in the major life activity of working." Id.
"Thus an individual is not substantially limited in working just because he or she is unable to perform a particular job for one employer. . . ." 29 C.F.R. SEC. 1630.2(j); Foreman v. Babcock & Wilcox Co. 113 F.3d 1402 1997 WL 271719 (5th Cir. May 22 1997); Dutcher v. Ingalls Shipbuilding 53 F.3d 723 727 (5th Cir.1996).
As the record stands Plaintiff argues that the only job which he was substantially limited from performing without accommodation was that of a pit supervisor. He maintains that he was fully capable of performing the other jobs at Treasure Chest which he says he asked to be transferred to. Thus because the evidence overwhelmingly indicates that Plaintiff was at best substantially limited by his alleged disability from performing only a single particular job he does not have a substantial limitation in the major life activity of working as contemplated by the ADA.
Record of such an impairment: There is none. In fact both Dr. Freed and Dr. Abrahams found that Plaintiff was capable of gainful employment.
Regarded as Having a Disability: Even though Plaintiff does not have a substantial limitation in the major life activity of working he may fall within the statutory definition of disability if he was regarded by Treasure Chest as being disabled. There are three different ways in which an individual may satisfy the definition of "being regarded as having a disability":
(1) [If he has] a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) [If he has] a physical or mental impairment that substantially limits major life activities only as result of the attitudes of others toward such impairment; or
(3) [If he has] none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment.
29 C.F.R. SEC. 1630.2(1). Only subpart (1) is relevant here.
An individual satisfies subpart (1) of this definition if he has an impairment that is not substantially limiting but the employer perceives the impairment as being substantially limiting. Foreman v. Babcock 113 F.3d 1402 1997 WL 271719.
Here while Plaintiff had been diagnosed with some psychiatric or psychological impairment such impairment did not substantially limit his major life activity of working. Thus the question is whether Plaintiff was treated by Treasure Chest as having an impairment that substantially limited his working. Court finds after viewing all of the evidence in the light most favorable to Plaintiff there is a genuine issue of material fact as to this issue. Thus there is a genuine issue of material fact as to whether or Plaintiff was "disabled" within the meaning of the ADA.
Is Plaintiff a Qualified Individual under the ADA?
Under the ADA
the term "qualified individual with a disability" means 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. For the purposes of this subchapter consideration shall be given to the employer's judgment as to what functions of a job are essential. . . .
42 U.S.C. SEC. 12111.
The ADA defines "Reasonable Accommodation" as follows:
The term "reasonable accommodation" may include--
(A) making existing facilities used by the employees readily accessible to and usable by individual with disabilities; and
(B) job restructuring part-time or modified work schedules reassignment to a vacant position acquisition or modification of equipment or devices appropriate adjustment or modifications of examinations training materials or policies the provision of qualified readers or interpreters and other similar accommodations for individuals with disabilities.
42 U.S.C. SEC. 12111(9). An employer is not required to create "light duty" jobs to accommodate. Foreman v. Babcock 113 F.3d 1402 1997 WL 271719; Turco v. Hoechst Celanese Chemical Group Inc. 101 F.3d 1090 1094 (5th Cir. 1996).
Here Plaintiff maintains that he asked for a transfer to other presumably less stressful jobs at Treasure Chest including jobs in guest services and Human Resources. However under Fifth Circuit precedent Treasure Chest was not obligated to accommodate Plaintiff by reassigning him to a new position.
We do not read the ADA as requiring affirmative action in favor of individuals with disabilities in the sense of requiring disabled persons be given priority in hiring or reassignment over those who are not disabled. It prohibits employment discrimination against qualified individuals with disabilities no more and no less.
Foreman v. Babcock 113 F.3d 1402 1997 WL 271719 quoting Daugherty v. City of El Paso 56 F.3d 695 (5th Cir. 1995).
Additionally Plaintiff has offered no evidence that any of the requested positions were available. While Plaintiff testified that "there were positions available " he admitted that he "didn't know exactly what was listed and what was available. . ." (Plaintiff's Dep. 162). "For the accommodation of a reassignment to be reasonable it is clear that a position must first exist and be vacant. Under the ADA an employer is not required to give what it does not have." Foreman v. Babcock 113 F.3d 1402 1997 WL 271719.
Finally while Plaintiff testified that he "was sure that [he] could fill" other jobs at the casino (Dep. 162) he has failed to offer any evidence showing that he is otherwise qualified to meet the hiring criteria for the requested positions. "In other words he has failed to establish that he possess the requisite skill experience education and other job-related requirements to qualify for these positions. Indeed the record is bare as to what those prerequisites might be." Foreman v. Babcock 113 F.3d 1402 1997 WL 271719.
Accordingly;
IT IS ORDERED that Defendant's Motion for Summary Judgment be and is hereby GRANTED dismissing Plaintiff's claims asserted under the ADA and LSA-R.S. 23:1006 because Plaintiff has failed to submit summary judgment evidence to create a genuine issue of material fact on essential elements of his ADA claim i.e whether he is a qualified individual who with reasonable accommodations could perform the jobs he requested to be transferred into at Treasure Chest and whether such jobs existed.