RUDY RODRIGUEZ, Plaintiff-Appellant, versus CONAGRA GROCERY PRODUCTS COMPANY, Defendant-Appellee.
No. 04-11473
United States Court of Appeals, Fifth Circuit
January 10, 2006
Petition for Panel Rehearing is GRANTED January 10, 2006; Petition for Rehearing En Banc is DENIED January 10, 2006
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
Appeal from the United States District Court for the Northern District of Texas
Treating the Petition for Rehearing En Banc filed by ConAgra Grocery Products Co. as a Petition for Panel Rehearing, the Petition for Panel Rehearing is GRANTED, the prior panel opinion, Rodriguez v. ConAgra Grocery Products Co., No. 04-11473 (5th Cir. filed Nov. 14, 2005) is hereby withdrawn, and this opinion is substituted therefor. As no member of this panel, nor judge in regular active service of the court, has requested that the court be polled on rehearing en banc (
Plaintiff-Appellant Rudy Rodriguez (“Rodriguez“) brought this diversity action against
I. FACTS AND PROCEEDINGS
Rodriguez was diagnosed with Type II diabetes in 1997. The general term “diabetes” encompasses a category of diseases, all of which are characterized by hyperglycemia —— heightened blood sugar levels —— resulting from the difficulty of the body to eliminate sugar (glucose) from the blood stream. A healthy body produces insulin at adequate levels and uses
ConAgra owns a plant in Fort Worth, Texas, at which it produces Ranch Style Beans. In January 2002, a temporary staffing agency placed Rodriguez at this plant where, until March of that year, he performed heavy manual labor, including unloading delivery trucks and lifting heavy sacks of beans.
Based on the quality of Rodriguez‘s work, a supervisor recommended to the
The following month, with offer in hand, Rodriguez visited Occupational Health Solutions (“OHS“), a private clinic with which ConAgra had a standing contractual arrangement to perform all of its preemployment physical exams. OHS‘s Dr. Jerry Morris performed Rodriguez‘s physical exam. Pursuant to the OHS-ConAgra contract, Dr. Morris was to assess Rodriguez‘s medical qualification for the Production Utility position at ConAgra. Significantly, however, ConAgra had never provided Dr. Morris with any data or restrictions applicable to the position, and Dr. Morris admitted that when he examined Rodriguez he knew nothing of Rodriguez‘s job offer or the qualifications necessary for the Production Utility position.
Dr. Morris performed a urinalysis on Rodriguez, which showed an elevated concentration of glucose in his urine. Based on Rodriguez‘s concentrated level of glucose and the fact that Rodriguez could not remember the name of his treating physician or the name of the medication he was taking to control his diabetes, Dr. Morris concluded that Rodriguez‘s diabetes was “uncontrolled.” On the medical form that Dr. Morris submitted to ConAgra, he wrote that Rodriguez was “[n]ot medically qualified” for the position at the plant because of “uncontrolled diabetes.” Dr. Morris also told Rodriguez that he did not believe Rodriguez was controlling his diabetes.
Rodriguez immediately disputed Dr. Morris‘s assessment, informing him that Rodriguez “had [had] a complete physical not even two months ago and [his] physical was all right and [he] was taking pills for [his diabetes] and everything and [he] never had no trouble.” Indeed, Rodriguez‘s oral medical history and physical exam confirmed that he suffered no physical or mental problems attributable to his diabetes. And, Dr. Morris testified that he observed no ill-effects attributable to Rodriguez‘s diabetes.
Following the exam, Rodriguez took his completed medical form to Zamora. She thereupon informed Rodriguez that he would not be hired because (1) he had failed the physical exam, and (2) Dr. Morris did not recommend him for employment.
Four days after ConAgra withdrew the job offer, Rodriguez filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC“) and the Texas Commission on Human Rights (“TCHR“). After both organizations failed to find a violation of Rodriguez‘s rights, the TCHR issued him a right-to-sue letter. That was in June of 2002; two months later, Rodriguez sued ConAgra in Texas state court, alleging that ConAgra violated the
controllable illness does not give rise to a disability discrimination claim.”5 And, in the district court‘s opinion, diabetes is a “generally controllable” illness.6 Therefore, ruled the court, Rodriguez did not have a claim under the
II. ANALYSIS
A. Standard of Review
We review both grants and denials of summary judgment motions de novo.9 “[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law,” then summary judgment in favor of that party is appropriate.10 Initially, it is the moving party‘s burden to “show[ that] there is no genuine issue of material fact“; if that burden is met, then the nonmoving party must “produce evidence or designate specific facts
showing the existence of a genuine issue for trial.”11 In conducting our analysis, we resolve any doubts and draw any reasonable inferences raised by the evidence in favor of the nonmoving party.12
B. The Texas Commission on Human Rights Act and the Americans with Disabilities Act
The
The
Taken together, these statutory rules require that a plaintiff situated like Mr. Rodriguez establish three elements: (1) At the time he sought employment he had a “disability” within the meaning of the
We conclude that the district court erred when it held that ConAgra did not withdraw Rodriguez‘s job offer because of his
1. ConAgra Regarded Rodriguez as “Disabled” Within the Meaning of the TCHRA/ADA
a. Background Law
This case falls squarely under the “regarded as” prong of the ADA‘s disjunctive definition of disability. Rodriguez‘s theory of recovery is that at the time ConAgra withdrew his job offer, it regarded him as having a physical impairment that substantially limited him in the major life activity of working, not that he in fact had such an impairment. Under the
(1) has an impairment which is not substantially limiting but which the employer perceives as . . . substantially limiting . . . ; (2) has an impairment which is substantially limiting only because of the attitudes of others towards such an impairment; or (3) has no impairment at all but is regarded by the employer as having a substantially limiting impairment.23
Rodriguez asserts that his case falls within the first of Bridges‘s three categories. Accordingly, Rodriguez had to show that at the time ConAgra withdrew his job offer (1) his diabetes did not actually substantially limit him in a major life activity, and (2) ConAgra nonetheless perceived his diabetes to be substantially limiting. As Rodriguez grounds his “regarded as” claim on the major life activity of working,24 he had to demonstrate that ConAgra believed that he was “unable to work in a broad class of jobs.”25 To that end, Rodriguez needed to prove that ConAgra perceived him to be “precluded from more than one type of
or a particular job of choice.”26 Rodriguez unmistakably carries this burden.
b. Rodriguez‘s Evidence
(i) Rodriguez Proved that His Diabetes Was Not Substantially Limiting
Rodriguez adduced sufficient evidence to establish that his diabetes did not substantially limit him in a major life activity. For example, Rodriguez stated in his affidavit: “At no time in my life have I experienced any physical or mental problem, other than a temporary illness or injury, that has affected my ability to work.” His personal physician, Ramon D. Garcia, averred that “[f]or as long as I have been treating Rudy Rodriguez, dating back to approximately 1999, he has not suffered any complications as a result of his diabetes.” As ConAgra made no attempt to challenge this evidence, we conclude that Rodriguez‘s diabetes did not substantially limit him in a major life activity.
The only evidence in the record that could be used to find that Rodriguez‘s diabetes was in fact substantially limiting is the hyperbole of Dr. Morris that “outside of a padded room where he could even then fall and break his neck from dizziness or fainting,” there is no working environment in which Rodriguez would be safe.27 But as we explain below,28 Dr. Morris did not base his assessment of Rodriguez‘s fitness for working on the individualized review of Rodriguez that the
(ii) Rodriguez Proved that ConAgra Regarded Him as Precluded From a Wide Range of Jobs
To determine whether ConAgra regarded Rodriguez‘s diabetes as a substantially limiting impairment, we focus on the statements of ConAgra itself, primarily those of its decisionmaker, Ms. Zamora, and of Dr. Morris, on whom Zamora relied in making her decision.31
First, Rodriguez
Interrogatory No. 7: Was Plaintiff qualified for any other positions at ConAgra Foods? Please include in your answer any positions for which he would have been qualified with a reasonable accommodation on your part.
Answer: No.
Alone, this statement is sufficient to support a reasonable fact finder‘s conclusion that ConAgra considered Rodriguez unable to perform a broad class of jobs.32 When this statement is coupled with the fact that ConAgra withdrew Rodriguez‘s job offer for the express reason that it viewed him as unfit for the entry-level Production Utility position —— which is a job that, because it
requires only the most basic skills and abilities, virtually any able-bodied person could perform —— it follows inescapably that ConAgra viewed Rodriguez as unfit to perform a wide range of jobs.
This same analysis applies to Zamora. In her deposition, Zamora stated that, based on Dr. Morris‘s assessment, she viewed Rodriguez‘s diabetes as uncontrolled. She confirmed that, in her mind, an uncontrolled diabetic is one who is not taking his medication. This, according to Zamora, could lead to dizziness and blacking out, thereby preventing Rodriguez from performing the essential duties of his job. Like ConAgra itself, if Zamora regarded Rodriguez as unable to perform the Production Utility position because of his diabetes, then there are essentially no manual labor jobs for which she regarded him as being able to perform.
Finally, Dr. Morris testified that the results of Rodriguez‘s urinalysis made him unfit to perform any manual labor job. In Dr. Morris‘s own words, “[O]utside of a padded room where he could even then fall and break his neck from dizziness or fainting, I don‘t know that there would be a safe environment that we could construct.”
This summary judgment evidence shows beyond cavil, as a matter of law, that ConAgra regarded Rodriguez‘s diabetes as substantially limiting his ability to engage in the major life activity of working. Undeterred, though, ConAgra continues to disagree.
c. ConAgra‘s Position
In response to Rodriguez‘s compelling evidence, ConAgra wields a broad ax in lieu of a scalpel, arguing expansively that the ADA‘s protection simply does not extend to Rodriguez. Its flawed syllogism goes: (1) Rodriguez has failed to control his diabetes; (2) because diabetes is a “generally controllable” illness,33 ConAgra regarded Rodriguez not as suffering generally from the impairment of diabetes, but rather as suffering from the impairment of the more specific uncontrolled diabetes;
In firing its broadside argument, ConAgra cites to no less than seventeen decisions purporting to support its proffered “failure to control” rule. This extensive citation list, however, suffers from a fatal flaw: Each decision in the list is completely inapposite to this case. In fact —— even if we were to assume arguendo that ConAgra‘s “failure to control” rule were a valid interpretation of the
inapposite to this case.
Fifteen of the seventeen cases to which ConAgra cites are not “regarded as” disability cases at all: Fourteen of them involved an actual disability35 and one involved the plaintiff‘s record of an actual disability.36 In other words, the plaintiffs in these cases
The other two cases on which ConAgra relies, Bayless v. Orkin Exterminating Co., No. 02-50560 (5th Cir. May 5, 2003) (per curiam), and Burrell v. Cummins Great Plains, Inc., 324 F. Supp. 2d 1000 (S.D. Iowa 2004), are equally irrelevant. Both cases did involve “regarded as” disability claims. But contrary to ConAgra‘s description of Bayless, we did not reject the plaintiff‘s claim “because his diabetes was not well controlled.” Rather, we rejected the plaintiff‘s claim because his employer did not regard his impairment as a “‘permanent or long-term‘” limitation on a major life activity. No. 02-50560, slip op. at 7-8 (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002)). And in Burrell, the district court grounded its finding that the plaintiff‘s employer did not regard him as substantially limited in the major life activity of working on the fact that “in light of
contended that they suffered (or had a record of suffering) from an impairment that actually substantially limited their ability to engage in a major life activity. This distinction is important because in an “actual disability” case there is something for the plaintiff to control, namely the substantially limiting impairment from which the plaintiff claims to suffer. In stark and telling contrast, “regarded as” disability claims, like Rodriguez‘s, are grounded in the foundational distinction that the plaintiff‘s impairment is not substantially limiting. Stated differently, in this and all other cases involving only a “regarded as” disability claim, there is nothing for the plaintiff to control or mitigate. Thus, applying the supposed “failure to control” rule in a “regarded as” case just makes no sense.37
In a world governed by ConAgra‘s reasoning, an impaired but not substantially limited plaintiff who asserts only a “regarded as” ADA claim could never succeed: No one can “control” a
[plaintiff‘s] skills and the array of jobs available to [him] utilizing those skills, [he] has failed to show that he is regarded as unable to perform a class of jobs.” 324 F. Supp. 2d at 1017 (emphasis added). The Burrell court‘s only discussion of the plaintiff‘s failure to control his medical condition was in the context of how that failure to control made the plaintiff a safety risk to the employer. Id. at 1018. How this helps ConAgra‘s case is unclear, as ConAgra has specifically disavowed any reliance on the possible safety risks posed by Rodriguez as a basis for its decision to withdraw his job offer.
nonlimiting impairment that by definition is merely “regarded as” substantially limiting. Such an imagined condition cannot —— and thus need not —— be controlled. An effort like ConAgra‘s to apply the “failure to control” rule to a “regarded as” claim is a logical impossibility that flies in the face of Congress‘s and the Texas legislature‘s explicit determinations that the ADA and the TCHRA should protect an individual who is not limited by his impairment but who is nonetheless “regarded as” substantially limited.38 We reject ConAgra‘s attempt to insert interstitially its “failure to control” rule into this case. Thus, we need not address the substantive question whether the rule itself is a valid interpretation of the TCHRA/ADA, leaving that determination for another day. Rodriguez is entitled to summary judgment that ConAgra regarded him as substantially limited in the major life activity of working by his diabetes.
2. ConAgra Concedes that It Withdrew Rodriguez‘s Job Offer Because of His Diabetes
ConAgra has made resolution of this prong of the TCHRA/ADA analysis easy: In its appellate brief, ConAgra twice concedes (albeit coupled with an irrelevant caveat) that it withdrew Rodriguez‘s job offer because it regarded him as substantially limited by his diabetes in the major life activity of working. In that caveat, ConAgra continues to contend that the allegedly “uncontrolled” nature of Rodriguez‘s diabetes saves it from liability. At its core, ConAgra‘s argument is that Rodriguez‘s alleged “failure to control” his diabetes constitutes a legitimate, nondiscriminatory justification (à la McDonnell Douglas Corp. v. Green39) for its withdrawal of Rodriguez‘s job offer. This argument depends for its very viability on ConAgra‘s underlying assumption that its “failure to control” rule is both valid and applicable in this “regarded as” action: Rodriguez‘s alleged “failure to control” his diabetes would qualify as a “legitimate”40 justification for ConAgra‘s withdrawal of the job offer only if a “failure to control” one‘s substantially limiting impairment did in fact obviate the protection
Related to the “because of” prong of the TCHRA/ADA analysis is the question of discriminatory intent. On this point, ConAgra argues that neither Rodriguez nor we have any reason to believe that it harbors ill-will towards diabetics as a class. We agree, especially considering the evidence establishing that ConAgra employs a number of diabetics —— albeit those whom it characterizes as “controlled” —— at its Ranch Style Beans plant. But both that evidence and ConAgra‘s assertion are beside the point. This case is one of those rare ADA cases in which we are presented with direct (rather than circumstantial) evidence of discriminatory intent: ConAgra and Ms. Zamora have both admitted that Rodriguez did not get his job because of his allegedly uncontrolled diabetes. Because we are concerned under the
3. The Allegedly Uncontrolled State of Rodriguez‘s Diabetes Does not Provide a Legitimate Justification for ConAgra‘s Withdrawal of the Job Offer
Even if ConAgra‘s “failure to control” rule were a valid interpretation of the
rendered him unable to perform his job adequately.43 Here, there was no such particularized evidence, and there could not have been any without the individualized review required by the
a. The TCHRA/ADA‘s Requirement of Individualized Assessment
In its Sutton,45 Toyota Motor Manufacturing,46 and Murphy v. UPS, Inc.47 decisions, the Supreme Court repeatedly emphasized “the individualized approach of the
individual applicant‘s actual abilities “effectuate[s] one of the primary goals of the
b. ConAgra Did Not Assess the Effect of Rodriguez‘s Diabetes in an Individualized Manner
The record in this case unequivocally establishes that ConAgra did not base its decision to withdraw Rodriguez‘s job offer on the kind of individualized and fact-intensive assessment envisioned by the
Any possible doubt as to whether ConAgra proceeded in an individualized manner is dispelled by Ms. Zamora‘s deposition testimony showing that her view of Rodriguez‘s diabetes (and of diabetes in general) was colored by “stereotypes and generalizations” about the illness.55 At one point, Rodriguez‘s counsel asked Zamora:
Q: Do you know whether all diabetics take medication?
A: I believe they do, yes.
Q: And do you believe that if someone is diabetic and not taking medication that they have uncontrolled diabetes?
A: Yes. I understand that to be true. . . .
Q: So is there a way for a diabetic to control diabetes without medication?
. . .
A: I would think not.
Dr. Morris himself, though, flatly answered “No” when asked in his deposition whether “all diabetics need to take medication.” According to Dr. Morris, some diabetics are able to manage their illness through “diet and exercise.”
This exchange demonstrates that Zamora (the decisionmaker in this case) harbored fundamental misunderstandings —— and employed prejudices —— about diabetes. Yet despite her misunderstandings, Zamora never asked Dr. Morris what he meant to convey by describing Rodriguez‘s diabetes as “uncontrolled.” Rather, Zamora relied unscientifically on her personal concepts about the illness gleaned from working with diabetics and from having two diabetic parents. On this flimsy foundation —— and without giving any consideration to the actual, individualized impact of Rodriguez‘s diabetes on his life —— Zamora concluded that she “know[s] that if [a diabetic] do[esn‘t] have [his] medication to control diabetes, it certainly presents a risk factor.” When asked what kinds of risks, Zamora
said, “I know that, again, talking to our employees that are diabetic . . . , that if they‘re not taking their medication on time and if they are not eating the proper foods at specific times, it could cause them to become dizzy and possibly blackout.” Perhaps most telling is this next statement by Zamora, as it proves how deeply her misunderstanding of diabetes affects her hiring decisions:
Q: Would you hire a diabetic who does not take medication to work at ConAgra?
A: I would have to say if it‘s uncontrolled, if the diabetes is uncontrolled, I wouldn‘t hire —— he would not be hired.
To summarize, despite the fact that ConAgra‘s own doctor stated that a diabetic can control his illness without medication, Zamora elected to rely on her own beliefs regarding the general nature of the illness to conclude that any unmedicated diabetic presents too significant a risk to hire. Her belief, though, amounts to nothing more than speculation about the danger actually posed by Rodriguez. Indeed, Zamora admitted as much:
Q: Let me put it this way. Do you know if someone analyzed, based on [Rodriguez‘s] own physical limitations, whether he was, likely, to cause injury to himself or others?
A: I don‘t know.
Post-Sutton, speculation about the hypothetical risks posed by a diabetic is not a legitimate ground on which to make an employment decision. The Sutton Court, after all, specifically rejected an approach that “would, in many cases, force [the decisionmaker] to make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual‘s actual condition.”56 That, however, is precisely what happened in this case.
Finally, ConAgra cannot escape its obligation to evaluate Rodriguez‘s actual abilities, notwithstanding his diabetes, by blindly relying on the assessment of Dr. Morris. Dr. Morris testified that he had no knowledge of the position for which ConAgra was considering Rodriguez. Indeed, he had not even been informed by ConAgra of any of the essential functions for which Rodriguez would be responsible if hired. This, in itself, belies the notion that Dr. Morris subjected Rodriguez to the individualized assessment mandated by the
CONCLUSION
For the foregoing reasons, we reverse the district court‘s grant of ConAgra‘s motion for summary judgment and that court‘s denial of Rodriguez‘s motion. Further, we grant Rodriguez‘s motion for partial summary judgment, holding as a matter of law that ConAgra discriminated against Rodriguez under the
REVERSED in part; RENDERED in part; and REMANDED.
Notes
The results of a medical inquiry or examination may not be used to disqualify persons who are currently able to perform the essential functions of a job, either with or without an accommodation, because of fear or speculation that a disability may indicate a greater risk of future injury, or absenteeism, or may cause future workers’ compensation or insurance costs.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, TECHNICAL ASSISTANCE MANUAL ON THE EMPLOYMENT PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES ACT § 6.4 (1992) (emphasis added).