Ketcher v. Wal-Mart Stores, Inc.

122 F.Supp.2d 747

Larry KETCHER, Plaintiff, v. WAL-MART STORES, INC., Defendant.

No. Civ.A. G-99-374.

United States District Court, S.D. Texas, Galveston Division.

November 29, 2000.

COPYRIGHT MATERIAL OMITTED

Ted C. Litton, Royston Rayzor Vickery and Williams, Houston, TX, for Ted C. Litton, mediator.

Lloyd Earl Kelley, Lloyd E. Kelly & Assoc, Houston, TX, for Larry Ketcher, plaintiff.

Alan N Magenheim, Magenheim, Bateman, Robinson, Wrotenbery & Helfand, Houston, TX, for Wal-Mart Stores Inc, defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

KENT, District Judge.

Plaintiff Larry Ketcher brings this action against his former employer, Wal-Mart Stores, Inc. ("Wal-Mart"), alleging discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq. ("ADA") and the Texas Labor Code § 21.001 et seq. Now before the Court is Defendant's Motion for Summary Judgment, filed August 29, 2000 and Plaintiff's "Motion for Leave to File an Amended Complaint," filed October 10, 2000. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED and Plaintiff's Motion for Leave to File an Amended Complaint is DENIED.

I. FACTUAL SUMMARY

Plaintiff began working for Wal-Mart on February 27, 1995 at Wal-Mart's distribution center number 6036 in Palestine, Texas. Initially, Plaintiff worked for three months as an "order filler." After this, Plaintiff began working as a "replenishment driver." This job required Plaintiff to operate a "stock picker" forklift. The stock picker is a piece of heavy machinery, weighing some 7,600 pounds, that enables a worker to remove product from pallets that are housed on racks reaching as high as twenty-six feet above a warehouse floor. A "replenishment driver," like Plaintiff, must raise himself up on the "stock picker" lift and remove product from the racked pallets of merchandise. The requisite quantity of product is stacked on the lift by the "replenishment driver," who then lowers the lift, drives the product to a designated location and unloads the retrieved items. Despite suffering from complete hearing loss in his left ear and from a seventy-percent loss of hearing capacity in his right ear, Plaintiff successfully performed his job without incident from May or June of 1995 until the autumn of 1997. In September 1997, however, Plaintiff became afflicted with some nature of anxiety disorder and began taking medication to control this condition. Contemporaneously, Plaintiff took a medical leave of absence beginning on September 12, 1997 and ending October 7, 1997. Plaintiff returned to work October 10, 1997. Wal-Mart argues that on October 10, Plaintiff informed one or more of its employees that he was suffering from dizzy spells and felt concerned about his ability to operate heavy machinery. Plaintiff contends that he informed Wal-Mart of his dizzy spells prior to his leave of absence and that these spells had dissipated by his return to work on October 10.¹ In light of its knowledge of Plaintiff's dizzy spells, whenever obtained, Wal-Mart requested that Plaintiff obtain a full medical release from his doctor, stating what types of tasks Plaintiff could and could not perform. Wal-Mart thus sent Plaintiff home prior to the normal end of Plaintiff's shift with instructions to obtain a doctor's release or restrictions before he could resume work. Thereafter, Plaintiff delivered to Wal-Mart a letter from his physician. This letter stated, in part that:

Larry [Ketcher] has been having difficulty with tinnitus for many years but over the last month or two has had associated dizziness. The dizziness is to an extent that it does put him at risk of endangerment of himself and others at work at this time.... I feel that Larry is at least partially disabled and has been over the last month dating back to 9/12/97 and until he is further controlled in terms of his mediation [sic] as well as his dizziness he should be placed on partial disability, at least to the point where he is not at his regular job that would put him at risk for endangerment. A desk job would be appropriate or other type [of] duty that would not require lifting heavy objects, climbing ladders, working with heights, or working with any type of machinery.

Plaintiff never produced a letter releasing him from these restrictions and has never again worked for Defendant.

On May 26, 1999, Plaintiff filed suit in the 212th District Court of Galveston County, Texas. Plaintiff asserted causes of action under the Americans With Disabilities Act, 42 U.S.C. § 12111, et seq. ("ADA") and the Texas Labor Code § 21.001 et seq. stemming from Wal-Mart's alleged violations of these statutes that were perpetrated against Plaintiff while in Wal-Mart's employ. Thereafter, Wal-Mart answered in state court, and then timely filed its notice of removal with this Court on June 25, 1999 asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441. Now before the Court is Defendant's Motion for Summary Judgment, in which Wal-Mart argues that Plaintiff cannot recover as a matter of law, in that Plaintiff is not a "qualified employee" who can recover under either the ADA or Texas law. In response, Plaintiff contends that: (1) he is a qualified employee; and (2) material fact issues exist regarding a newly alleged failure of Defendant to rehire Plaintiff at other Wal-Mart locations for another job position. With regard to Plaintiff's second argument, the Court, as discussed below, treats this as a Motion for Leave to Amend Complaint and such leave is DENIED. Defendant's Motion for Summary Judgment, however, is GRANTED.

II. ANALYSIS

A. Summary Judgment Standard

Summary judgment is appropriate if no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When a motion for summary judgment is made, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Issues of material fact are "genuine" only if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See id. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id.; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Dixon v. State Farm Fire & Cas. Co., 799 F.Supp. 691, 693 (S.D.Tex.1992) (noting that summary judgment is inappropriate if the evidence could lead to different factual findings and conclusions). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

Procedurally, the party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553; see also Fed. R.Civ.P. 56(c). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. See Matsushita, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; Wise v. E.I. DuPont de Nemours & Co., 58 F.3d 193, 195 (5th Cir.1995). The Court must accept the evidence of the nonmoving party and draw all justifiable inferences in favor of that party. See Matsushita, 475 U.S. at 585-87, 106 S.Ct. at 1355-56. However, to meet its burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts," but instead, must "come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 586-87, 106 S.Ct. at 1355-56 (quoting Fed.R.Civ.P. 56(e)).

B. ADA Claim

Defendant moves for summary judgment on Plaintiff's ADA claim. Title I of the ADA 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) (emphasis added); see also Daugherty v. City of El Paso, 56 F.3d 695, 696 (5th Cir.1995); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir.1995). In order to prevail upon an ADA claim, a plaintiff must prove that "(1) he has a `disability;' (2) he is a `qualified individual' for the job in question; and (3) an adverse employment decision was made because of his disability." Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir.1999) (citing 42 U.S.C. § 12112(a)). Defendant has moved for summary judgment solely on the basis that Plaintiff cannot, as a matter of law, establish that he was a "qualified individual" as required by the second prong of this test. The Court, therefore, turns immediately to that issue.²

In order to show that he is a "qualified individual," Plaintiff must demonstrate that "with or without reasonable accommodation, [he] can perform the essential functions of the employment position that [he] holds or desires." 42 U.S.C. § 12111(8). In other words, an "otherwise qualified person" must be "`able to meet all of the [position's] requirements in spite of his handicap.'" Burch, 174...