Lowery M. THOMAS v. LOUISIANA CASINO CRUISES, INC.
No. 2003 CA 1937
Court of Appeal of Louisiana, First Circuit
June 25, 2004
Writ Denied October 29, 2004
886 So.2d 468
FOIL, FITZSIMMONS, and GAIDRY, JJ.
Murphy J. Foster, III, Melissa M. Shirley, Baton Rouge, Counsel for Defendant/Appellee Louisiаna Casino Cruises, Inc.
Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
FITZSIMMONS, J.
Plaintiff, Mr. Lowery M. Thomas, sued defendant, Louisiana Casino Cruises, Inc. (casino) for unlawful employment discrimination and prayed for damages. The casino filed a motion for summary judgment asserting that Mr. Thomas was not able to establish the essential elements of his
Summary judgment procedure is “favored” and “is designed to secure the just, speedy, and inexpensive determination of evеry action....”
An “otherwise qualified disabled person shall” not “be subjected to discrimination in employment” based on “a disability.”
To defeat a motion for summary judgment against an employment disability claim, the claimant must establish a prima facie case that: (1) he has a disability, as dеfined by the statute, (2) he is qualified for the job, and (3) an adverse employment decision was made solely because of the disability. Hook v. Georgia-Gulf Corporation, 99-2791, p. 8 (La.App. 1 Cir. 1/12/01), 788 So.2d 47, 53, writ denied, 01-1098 (La.6/1/01), 793 So.2d 200. The threshold essential elеment of the claim is whether the claimant meets the statutory definition of “disabled.” Id. “Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact.” Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5 Cir.1995). “When the mаjor life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad сlass of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450 (1999) (in relation to ability to continue work as a regional or domestic pilot, inability to work as a global pilot was seen only as limitation on a particular job); Blanks v. Southwestern Bell Communications, 310 F.3d 398, 401 (5 Cir.2002). An inability to perform a single job, or a narrow range of jobs, can be seen as not constituting a substantial limitation on the major life activity of working, or as not reaching a major life activity. Blanks, 310 F.3d at 401; Dutcher, 53 F.3d at 727. The “inability to perform one aspect of a job while retaining the ability to perform the work in genеral does not amount to a substantial limitation of the activity of working.” Dutcher, 53 F.3d at 727;
Whether an impairment substantially limits a claimant in a broad range of jobs, or only in a narrow range, is a mixed question of law and fact. Bridges v. City of Bossier, 92 F.3d 329, 333 (5 Cir.1996), cert. denied, 519 U.S. 1093, 117 S.Ct. 770, 136 L.Ed.2d 715 (1997). The question of what constitutes a substantial limitation on a major life activity is a legal question. Bridges, 92 F.3d at 334. An underlying factual question could involve what type of jobs and how many were available to the claimant despite his impairment. Bridges, 92 F.3d at 333.
Mr. Thomas began his work as a security guard with the cаsino in July of 1996. He worked both outdoor and indoor security posts around the casino. However, because of prior criminal convictions, he was unable to obtain a gaming employee permit that would have allowed him to work inside the casino itself. In February of 1997, he presented the casino with notes from his doctor. Admittedly, he was HIV positive at that time. One note stated that: “Mr. Thomas has a chronic sinus condition, and a weakened immune system which makes it easy for him to catch infections such as pneumonia. He must work inside only.” Although Mr. Thomas positively identified only the outdoor post nearest the river as the cause оf his symptoms, he thought it could have been other posts as well. In spite of the doctor‘s note, the casino required Mr. Thomas, as part of his duties, to relieve other officers, which periodically necessitated working at the outdoor security posts. Effective March 4, 1997, the casino released Mr. Thomas frоm his employment for “Chronic medical condition which prohibits him from performing necessary duties of a security officer.”
After he left the casino, Mr. Thomas wоrked in various positions, including a start-up business of his own. For a short time, he worked as a forklift operator, but left that position because he had “no room to grow.” He also worked for United Parcel Service and eventually for Home Depot. At Home Depot, he was hired as a lumber department associate, and was later promoted to department supervisor. In response to a question about whether Mr. Thomas had to remain indoors, he testified at trial that: “I can get outside just like — I can do anything you can do.” The record does not show whether the inability to work outdoors was permanent or was еxpected to be permanent.
“A physical impairment, standing alone, is not necessarily a disability as contemplated by” the applicable lаw for discrimination claims. Dutcher, 53 F.3d at 726. From our review of the record before us, we find that Mr. Thomas failed to demonstrate a genuine issue of material
For these reasons, we find no error in the trial court‘s grant of the summary judgment in favor of defendant, Louisiana Casino Cruises, Inc. The judgment is affirmed at Mr. Thomas’ cost.
AFFIRMED.