Appeal by plaintiff from judgment entered 23 December 1997 by
Judge Henry V. Barnette and judgment entered 18 December 1998 by
Judge Narley L. Cashwell in Superior Court, Durham County. Heard
in the Court of Appeals 14 March 2000.
GLENN, MILLS & FISHER, P.A., by Stewart W. Fisher and Caitlyn
Fulghum, for plaintiff-appellant.
HAYWOOD, DENNY & MILLER, L.L.P., by George W. Miller, Jr. and
George W. Miller, III, for defendant-appellee.
Patterson, Harkavy & Lawrence, L.L.P., by Burton Craige, for
the North Carolina Academy of Trial Lawyers and the American
Civil Liberties Union of North Carolina Legal Foundation,
amici curiae.
TIMMONS-GOODSON, Judge.
The present case arises out of Susan F. Johnson's
(“plaintiff”) charges of discrimination filed against Durham
Technical Community College (“defendant” or “Durham Tech”) under
the Retaliatory Employment Discrimination Act and the Americans
with Disabilities Act. Plaintiff appeals adverse rulings that
resulted in a denial of her claims.
Plaintiff taught literacy skills to inmates at the Durham
County Jail Annex. She obtained the job by signing a contract with
Durham Tech as a part-time instructor of a basic skills course.
Pursuant to the contract, plaintiff taught from November of 1993
until mid-February of 1994. Over a two-year period, plaintiff and
defendant entered into seven more contracts, for employment periods
which lasted for a term of one to three months, depending on the
length of the literacy course. Plaintiff is unable to walk without crutches as a result of
having contracted polio as a child. Prior to moving to North
Carolina, she taught Latin in Troop County, Georgia. In 1986,
plaintiff applied for and received permanent partial disability
from her post as a teacher in Georgia and permanent total
disability from the Federal Government.
In order to teach her class at the jail annex, plaintiff drove
to the jail in her own car, entered on crutches, transferred into
a wheelchair she kept at the jail, and taught class from the
wheelchair. On 8 June 1994, plaintiff fell from her crutches while
opening a security door at the jail, breaking a vertebra in her
spine. She filed for workers' compensation benefits on 10 June
1994 and received payment for medical bills and temporary total
disability. On 2 January 1995, plaintiff returned to the jail to
teach under her fourth employment contract period. Following her
fall, plaintiff used her wheelchair exclusively because walking was
more difficult. From her home, plaintiff was lifted in herwheelchair onto a public transport van which drove her to the jail.
She then rolled into the jail annex and taught her class from her
wheelchair.
In February of 1995, plaintiff fell in a bathtub at home and
broke her leg. She returned to the jail approximately two weeks
later and continued to teach from her wheelchair with her leg in a
cast.
Administrators at Durham Tech grew increasingly concerned
about the possibility plaintiff would suffer another accident at
the jail, exposing Durham Tech to liability. Additionally, the
administrators were concerned about plaintiff's absences as a
result of her injuries and her requirements of accommodations such
as having guards at the jail assist her to open and close doors.
On 16 June 1995, plaintiff met with Russ Conley (“Conley”),
the Director of the Adult and Basic Skills program at Durham Tech.
Conley proposed that plaintiff teach on campus rather than at the
jail at the expiration of her contract. Conley stated that having
plaintiff teach at the jail “could prove to be a liability for
Durham Tech.” Conley discussed the possibility of plaintiff
teaching students with disabilities and mental illnesses. Plaintiff refused the transfer, stating that she had no special
education training. Conley informed plaintiff on 16 June 1995 that
she would not be returning to the jail and that he had already
hired someone to replace her.
On 21 June and 24 June 1995, the Dean of Adult and Continuing
Education at Durham Tech, Art Clark, received anonymous phone calls
alleging that plaintiff used drugs, gave drugs to inmates, carried
a loaded weapon, supplied inmates with bullets, and had sex with
inmates. Larry Haverland (“Haverland”), Deputy Director for Inmate
Programs, testified that he corroborated some of the anonymous
charges against plaintiff on 23 June 1995. Haverland did not know
who had conducted the informal investigation of the anonymous
charges or whether that individual was reliable. The corroborated
charges were that plaintiff had taken contraband into the jail in
the form of “possibly lighters or matches or something” and that
plaintiff had visited an inmate at another prison. Haverland
testified that a teacher does not violate jail rules by visiting an
inmate at another prison. Plaintiff was not asked to answer the
charges of the anonymous caller until after she filed charges of
discrimination against Durham Tech in the fall of 1995.
On 26 June 1995, Conley approached plaintiff at the jail annex
and informed her that her position would end on 28 June 1995 when
her contract expired. Plaintiff was not offered another teaching
contract with Durham Tech.
During the week before trial, Durham Tech identified the
anonymous caller as Cynthia Wilson (“Wilson”), a nursing aide whohad worked in plaintiff's home. At trial, plaintiff denied
Wilson's charges. Two nursing aides who assisted plaintiff at the
same time as Wilson testified that they had never seen any signs of
drug use or improper conduct by plaintiff.
Plaintiff initiated charges of discrimination with the North
Carolina Department of Labor under the Retaliatory Employment
Discrimination Act and with the Equal Employment Opportunity
Commission under the Americans with Disabilities Act. After
exhausting her administrative remedies, plaintiff filed a complaint
alleging that defendant had removed her from its employment in
violation of state and federal law.
On 23 December 1997, Judge Henry V. Barnette of the Superior
Court, Durham County partially allowed defendant's Motion for
Summary Judgment, dismissing plaintiff's claims brought pursuant to
the North Carolina Retaliatory Employment Discrimination Act, but
denying summary judgment as to plaintiff's cause of action brought
pursuant to the Americans with Disabilities Act. Specifically,
Judge Barnette denied plaintiff's Motion for Summary Judgment as to
whether plaintiff was a “qualified individual with a disability”
for purposes of the Americans with Disabilities Act.
On 18 December 1998, Judge Narley L. Cashwell of the Superior
Court, Durham County granted defendant's Motion for Directed
Verdict as to plaintiff's claim under the Americans with
Disabilities Act. Plaintiff appeals.
On appeal, plaintiff argues that the trial court erred in: (I)granting defendant's Motion for Sum
mary Judgment as to plaintiff's
claims under the Retaliatory Employment Discrimination Act; and
(II) directing a verdict against plaintiff as to her claims under
the Americans with Disabilities Act.
I. RETALIATORY DISCRIMINATION ACT CLAIM
By her first assignment of error, plaintiff argues that the
trial court erred in granting defendant's Motion for Summary
Judgment as to plaintiff's claims under the Retaliatory Employment
Discrimination Act. We cannot agree.
Summary judgment is proper where there is no genuine issue as
to any material fact.
Alltop v. Penney Co., 10 N.C. App. 692, 179
S.E.2d 885 (1971). An issue is genuine where it is supported by
substantial evidence.
Kessing v. Mortgage Corp., 278 N.C. 523, 180
S.E.2d 823 (1971). A genuine issue of material fact is of such a
nature as to affect the outcome of the action.
Smith v. Smith, 65
N.C. App. 139, 308 S.E.2d 504 (1983). The moving party bears the
burden of establishing the lack of a triable issue of fact.
Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425 (1970). The
motion must be denied where the non-moving party shows an actual
dispute as to one or more material issues.
Page v. Sloan, 281 N.C.
697, 190 S.E.2d 189 (1972). As a general principle, summary
judgment is a drastic remedy which must be used cautiously so that
no party is deprived of trial on a disputed factual issue.
Billings v. Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975),
aff'd, 290 N.C. 502, 226 S.E.2d 321 (1976).
The North Carolina Retaliatory Employment Discrimination Act(“REDA”), enacted in 1992, prohibits discrimi
nation against an
employee who has filed a workers' compensation claim. N.C. Gen.
Stat. § 95-240,
et. seq. (1999). In pertinent part, the Act
provides:
(a) No person shall discriminate or take any
retaliatory action against an employee because
the employee in good faith does or threatens
to do any of the following:
(1) File a claim or complaint, initiate
any inquiry, investigation,
inspection, proceeding or other
action, or testify or provide
information to any person with
respect to any of the following:
a. Chapter 97 of the General
Statutes.
N.C. Gen. Stat. § 95-241 (1999).
REDA replaced North Carolina General Statutes section 97-6.1,
the purpose of which was to promote an open environment in which
employees could pursue remedies under the Workers' Compensation Act
without fear of retaliation from their employers.
Abels v. Renfro
Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992),
aff'd in part,
rev'd in part, 335 N.C. 209, 436 S.E.2d 822 (1993). The former law
merely protected employees against discharge and demotion. N.C.
Gen. Stat. § 97-6.1(a) (repealed 1992). By enacting REDA, however,
the General Assembly expanded the definition of retaliation to
include “the discharge, suspension, demotion, retaliatory
relocation of an employee, or other adverse employment action taken
against an employee in the terms, conditions, privileges, and
benefits of employment.” N.C. Gen. Stat. § 95-240(2) (1999).
In a claim brought pursuant to the former provision, section
97-6.1(a), this Court stated that an employee bears the burden ofproof in retaliatory discharge actions.
Morgan v. Musselwhite, 101
N.C. App. 390, 399 S.E.2d 151 (1991). “The statute does not
prohibit all discharges of employees who are involved in a workers'
compensation claim, it only prohibits those discharges made
because
the employee exercises his compensation rights.”
Id. at 393, 399
S.E.2d at 153 (citation omitted). Furthermore, our appellate
courts indicated in applying the former provision that a plaintiff
fails to make out a case of retaliatory action where there is no
close temporal connection between the filing of the claim and the
alleged retaliatory act.
See Shaffner v. Westinghouse Electric
Corp., 101 N.C. App. 213, 398 S.E.2d 657 (1990);
Morgan, 101 N.C.
App. 390, 399 S.E.2d 151.
[1]As a preliminary matter, we must address the issue of
whether the failure to renew an employment contract may qualify as
a retaliatory action in violation of REDA. As stated above, in
enacting REDA, the General Assembly broadly defined retaliatory
action as “the discharge, suspension, demotion, retaliatory
relocation of an employee, or
other adverse employment action
. . . .” N.C.G.S. § 95-240(2) (emphasis added). As the failure to
renew an employee's contract produces the adverse result of
terminating her employment, the plain language of the statute
suggests that non-renewal of an employment contract falls within
the scope of REDA. Furthermore, while our appellate courts have
not spoken on this issue, we find persuasive authority from other
jurisdictions holding that the failure to renew an employment
contract may constitute actionable conduct.
See, e.g., Mt. HealthyCity Board of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977);
Perry v. Sinderman, 408 U.S. 593, 33 L. Ed. 2d 570 (1972);
Kramer
v. Logan County School District No. R-1, 157 F.3d 620 (8th Cir.
1998);
Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir.
1998);
Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d
1130,
reh'g denied, 660 F.2d 497 (5th Cir. 1981);
Daly v. Exxon
Corp., 63 Cal. Rptr. 2d 727 (Cal. Ct. App. 1997). We therefore
hold that the failure to renew an employment contract constitutes
an adverse employment action for purposes of REDA.
[2]We now address plaintiff's argument that a genuine issue
of material fact existed as to whether defendant took retaliatory
action against her because she filed a workers' compensation claim
or threatened to do so.
See N.C.G.S. § 95-241. In the present
case, plaintiff filed a workers' compensation claim on 10 June 1994
after she broke a vertebra in her spine while opening a security
door at the jail annex. Defendant entered into three new contracts
with plaintiff after she filed the claim. Plaintiff's final
contract with Durham Tech expired on 28 June 1995, over a year
after she filed for compensation.
Plaintiff argues that she was terminated after a second injury
similar to the employee in
Abels, 335 N.C. 209, 436 S.E.2d 822, and
that a discharge following a second injury is sufficient to show
that an employee was discharged to prevent the filing of a workers'
compensation claim. However, plaintiff's second injury occurred in
the home when she fell in a bathtub on 11 February 1995 and broke
her leg. Durham Tech would not have anticipated a workers'compensation claim based on plaintiff's second injury as it was not
work related. In contrast to
Abel, the circumstantial evidence in
the case
sub judice does not suggest that defendant failed to renew
plaintiff's contract in order to forestall the filing of a workers'
compensation claim. Defendant entered into three new contracts
with plaintiff after she filed a workers' compensation claim, and
defendant's refusal to renew plaintiff's contract was not closely
temporally related to her workers' compensation claim in that it
took place over a year after she filed for compensation.
See
Shaffner, 101 N.C. App. 213, 398 S.E.2d 657.
We conclude that there was no genuine issue of material fact
as to whether defendant took retaliatory action against plaintiff
because she filed a workers' compensation claim or threatened to
file one. As such, we hold that the trial court did not err in
granting defendant's Motion for Summary Judgment on plaintiff's
claims under the REDA.
II. AMERICANS WITH DISABILITIES ACT CLAIM
[3]By her second assignment of error, plaintiff argues that
the trial court erred in directing a verdict against her on her
claims under the Americans with Disabilities Act. We agree.
In deciding whether to direct a verdict at the close of all of
the evidence, “the trial court must determine whether the evidence,
when considered in the light most favorable to the nonmovant, is
sufficient to take the case to the jury.”
Southern Bell Telephone
and Telegraph Co. v. West, 100 N.C. App. 668, 670, 397 S.E.2d 765,
766 (1990)(citations omitted),
aff'd, 328 N.C. 566, 402 S.E.2d 409(1991). If there is more than a scintilla to support a plaintiff's
case, the motion must be denied.
Edwards v. West, 128 N.C. App.
570, 495 S.E.2d 920,
cert. denied, 348 N.C. 282, 501 S.E.2d 918
(1998). “Where the question of granting a directed verdict is a
close one, the better practice is for the trial judge to reserve
his decision on the motion and submit the case to the jury.”
Id.
at 573, 495 S.E.2d at 923 (citation omitted).
The Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101,
et seq. (1994), provides in pertinent part:
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. § 12112(a) (1994). To prevail on an ADA claim, the
plaintiff must prove that: (1) she has a disability as defined by
the ADA; (2) she is qualified for the job; and (3) she was
unlawfully discriminated against by an employer because of her
disability.
Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir.
1997).
Under the ADA, the term “disability” is defined as “a physical
. . . impairment that substantially limits one or more of the major
life activities of such individual[.]” 42 U.S.C. § 12102(2)(A)
(1994). In the present case, plaintiff contracted polio at the age
of four, and her limited movement and mobility required the use of
a wheelchair and crutches since the onset of the disease. At
trial, plaintiff's physician testified that plaintiff's major lifeactivity of walking was substantially limited by her condition.
Based upon these and other pertinent facts relating to plaintiff's
limitations, we conclude that plaintiff presented sufficient
evidence indicating that she was disabled for purposes of the ADA.
Only a “qualified individual with a disability” may prevail on
a discrimination claim 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.” 42 U.S.C. § 12111(8) (1994). “Essential
functions” of the job are the fundamental job duties of the person
with the disability “that bear more than a marginal relationship to
the job at issue.”
Chandler v. City of Dallas, 2 F.3d 1385, 1393
(5th Cir. 1993)(citation omitted).
The term “reasonable accommodation” may
include--
(A) making existing facilities used
by employees readily accessible to and
usable by individuals 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 modification 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. § 12111(9).
In the present case, defendant argues that plaintiff was not
a qualified individual in that Haverland, inmate programs director,banned plaintiff from entering the jail after he confirmed
anonymous allegations of plaintiff's illegal conduct. According to
defendant, plaintiff was therefore unable to perform the essential
function of her job of teaching at the jail. We cannot agree.
Durham Tech received the anonymous calls on 21 June and 24
June 1995. Haverland confirmed the allegations of the first call
to his satisfaction on 23 June 1995. However, Conley informed
plaintiff on 16 June 1995 that she would not be returning to the
jail and that he had already replaced her. As such, construing the
evidence in the light most favorable to the plaintiff, reasonable
fact-finders could conclude that defendant had decided not to renew
plaintiff's contract before the anonymous phone calls were received
and before plaintiff was banned from the jail.
See Chardon v.
Fernandez, 454 U.S. 6, 70 L. Ed. 2d 6 (1981) (holding that
discriminatory act occurs on the date an employee is notified of an
impending discharge rather than on the date employment ends). An
employer may not rely on evidence of employee misconduct which is
acquired after the employment decision in question to defend the
employment decision.
McKennon v. Nashville Banner Pub. Co., 513
U.S. 352, 130 L. Ed. 2d 852 (1995). As a reasonable juror could
conclude that the anonymous phone calls were after-acquired
evidence, defendant's argument that plaintiff was not a qualified
individual because she was banned from the jail must fail.
[4]Defendant further argues that plaintiff was not a
“qualified individual” because her “poor attendance made her
nonqualified to teach in the jail.” Before addressing defendant'sspecific issue, we note that by all accounts, plaintiff was an
excellent teacher who was able to carry out the instructional
functions of her job using her wheelchair. Certainly, plaintiff's
qualifications as an instructor are not at issue here. However,
this does not end our inquiry.
“In addition to possessing the skills necessary to perform the
job in question, an employee must be willing and able to
demonstrate these skills by coming to work on a regular basis.”
Tyndall v. National Educ. Centers, 31 F.3d 209, 213 (4th Cir.
1994);
see also Waggoner v. Olin Corp., 169 F.3d 481 (7th Cir.
1999) (holding that regular attendance was an essential function);
Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (holding same in
relation to federal Rehabilitation Act);
Jackson v. Veterans
Admin., 22 F.3d 277,
reh'g and suggestion for reh'g en banc denied,
30 F.3d 1500 (11th Cir. 1994) (same). Accordingly, “a regular and
reliable level of attendance is a necessary element of most jobs.”
Tyndall, 31 F.3d at 213 (citations omitted).
[I]t is not the absence itself but rather
the excessive frequency of an employee's
absences in relation to that employee's job
responsibility that may lead to a finding that
an employee is unable to perform the duties of
[her] job. Consideration of the degree of
excessiveness is a factual issue well suited
to a jury determination.
Haschmann v. Time Warner Entertainment Co.,
L.P., 151 F.3d 591, 602
(7th Cir. 1998).
Plaintiff entered several contracts with Durham Tech for five
periods of employment beginning in November 1993. Plaintiff taught
through the first two periods, ending May 1994, without incident. For the third period, plaintiff's contract specified that she was
to teach for thirteen weeks, beginning 30 May 1994 and ending 26
August 1994. However, on 8 June 1994, only a week after beginning
the third contract period, plaintiff fell at the jail and, as a
result, was unable to complete the third employment period.
For the fourth employment period, plaintiff was to teach
twelve weeks, beginning 8 January 1995 and ending 22 March 1995.
However, following her fall at home in February, plaintiff missed
approximately two weeks of the twelve-week period. Plaintiff, with
the assistance of a wheelchair, taught the entire fifth employment
period without incident.
Dean Clark testified that good and dependable attendance was
an important function for instructors affiliated with Durham Tech,
especially in incarcerated, “off site” situations. Clark
explained, “[T]o get substitute teachers who are pre-qualified, for
example, who have been cleared, oriented, etcetera, who are
suitable for teaching in an incarcerated environment, is a
problematic matter.” Clark further testified that plaintiff's
attendance record was a concern in the decision to offer her a
transfer.
To support its argument that plaintiff's attendance record did
not support a finding that plaintiff was qualified, defendant cites
Tyndall, 31 F.3d 209. However, the facts of
Tyndall are
distinguishable from the facts
sub judice. In
Tyndall, the Fourth
Circuit found an ADA claimant was not qualified for her position as
a business school instructor based upon her attendance record. Theemployee missed a total of forty days of a seven-month work period.
With the exception of ten days, the employee's absences were
unrelated to her disability.
Prior to returning to work as scheduled following almost a
month of leave, the plaintiff employee requested yet another
extended absence. The plaintiff's employer in
Tyndall informed the
employee that she could return to work as scheduled without
penalty. However, the employer would not agree to yet another
extended absence. The employer explained that if the employee was
unable to return to work as scheduled, she would miss the beginning
of an instructional cycle for a third time. The employer further
explained that students and other teachers had complained about the
employee's absence and that any further period of absence would
disrupt the school's operation.
In the instant case, plaintiff was able to teach three out of
five employment periods without incident and one employment period
in which she missed only two weeks out of twelve weeks of classes.
It was only during one employment period that plaintiff missed a
significant number of classes. Unlike the employee in
Tyndall,
plaintiff's absences were due solely to complications related to
her disability and did not establish a clear pattern of
absenteeism. Furthermore, following her significant period of
absence during the third employment period, defendant did not
express that the extended absence was disruptive or excessive and
even offered her two additional periods of employment. Finally,
unlike in
Tyndall, plaintiff's employment relationship withdefendant did not end solely because of excessive absenteeism.
Federal circuit courts that have found employees unqualified
because of their attendance records generally do so based on more
egregious absenteeism than existed in the instant case.
See, e.g.,
Waggoner, 169 F.3d 481 (finding disabled employee unqualified where
she was on medical leave for five and a half months and further
missed work or was late forty times during a twenty-month period
of employment);
Halperin v. Abacus Technology Corp., 128 F.3d 191
(4th Cir. 1997) (finding employee unqualified under ADA where he
missed forty-six days of a six-month employment period and further
expressed he was unable to work for an additional five months at
the time of his termination);
Carr, 23 F.3d 525 (finding employee
unqualified under similar federal Rehabilitation Act provision
where employee missed months at a time over a period of several
years, did not explain some of the absences, and did not improve
her attendance record even after employer's reasonable
accommodations)
. But cf. Jackson, 22 F.3d 277 (finding temporary
employee unqualified under Rehabilitation Act where employee missed
six days out of a two and one-half month employment period).
While we recognize that determining whether plaintiff was a
“qualified individual” is a close question, there are arguments
which support a finding that plaintiff's absences were excessive in
light of her unique employment situation--substitute teachers were
hard to find, the classes were only for a short period of time and
thus, any absence may be significant, etc. However, viewing the
evidence in the light most favorable to the plaintiff, we concludethat a reasonable jury could find, based upon all of the evidence,
that plaintiff was qualified even in light of her attendance
record.
Finally, the ADA specifies that no employer “shall
discriminate . . .
because of the disability of [an] individual.”
42 U.S.C. § 12112(a) (emphasis added). The term “discriminate”
includes “limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or
status of such applicant or employee because of the disability of
such applicant or employee,” 42 U.S.C. § 12112(b)(1), as well as
“denying employment opportunities to a job applicant or employee
who is an otherwise qualified individual with a disability, if such
denial is based on the need of such covered entity to make
reasonable accommodation to the physical or mental impairments of
the employee or applicant[,]” 42 U.S.C. § 12112(b)(5)(B).
With the exception of the Sixth Circuit, all federal circuit
courts that have addressed this issue in a published opinion have
found that “because of” does not mean solely because of; rather, to
establish a violation of the ADA, a plaintiff need only prove that
discrimination based on her disability was a determining or
motivating factor in an adverse employment action.
Baird ex rel.
Baird v. Rose, 192 F.3d 462 (4th Cir. 1999);
Butler v. City of
Prairie Village, Kan., 172 F.3d 736 (10th Cir. 1999)
; Kiel v.
Select Artificials, Inc., 169 F.3d 1131 (8th Cir.),
cert. denied,
528 U.S. 818, 145 L. Ed. 2d 51 (1999)
; Foster v. Arthur Andersen,
LLP, 168 F.3d 1029 (7th Cir. 1999);
Walton v. Mental Health Assoc.,168 F.3d 661 (3d Cir. 1999);
Newberry v. East T
exas State
University, 161 F.3d 276 (5th Cir. 1998);
Feliciano v. State of
R.I., 160 F.3d 780 (1st Cir. 1998);
McNely v. Ocala Star-Banner
Corp., 99 F.3d 1068 (11th Cir. 1996).
But see Brohm v. JH
Properties, Inc., 149 F.3d 517 (6th Cir. 1998). In the case
sub
judice, the trial court erroneously directed a verdict in favor of
Durham Tech because plaintiff had failed to prove that she was
terminated based solely upon her disability. Applying the correct
standard, we conclude that a reasonable jury could find plaintiff's
disability was at least a motivating or determinative factor in her
discharge. Defendant admitted to plaintiff, among other things,
that her presence at the jail and the possibility that she would
suffer another fall “could prove to be a liability for Durham
Tech.” Certainly, defendant presented evidence of other concerns
considered in the decision, such as plaintiff's attendance record
and her safety. However, to recover, plaintiff need not prove that
her disability was the sole reason defendant took the adverse
employment action, but only that it was a motivating factor. As
such, the court erred in directing a verdict based on this issue.
[5]Defendant contends that even if the “determining factor”
test is applicable to the instant case, it was still entitled to a
directed verdict. Defendant argues that there is a “powerful
presumption” of non-discrimination because the same person who
hired plaintiff, fired her. We must disagree.
In
Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991), the
Fourth Circuit held, in an age discrimination case, that where theemployer advances a legitimate, nondiscriminatory reason for its
adverse action,
the hirer and the firer are the same
individual[,] and the termination of
employment occurs within a relatively short
time span following the hiring, a strong
inference exists that discrimination was not a
determining factor for the adverse action
taken by the employer.
The
“Proud inference” has been extended to a variety of employment
discrimination cases, including those arising under the ADA.
See,
e.g., Tyndall, 31 F.3d 209 (applying
Proud to an ADA case).
In the instance case, the evidence was sufficient to indicate
that the same person who hired plaintiff did not fire her. Conley,
the person who hired plaintiff, testified that at some point during
the Spring of 1995, Dean Clark encouraged him to consider
reassigning plaintiff to a location other than the jail. Conley
further testified that Clark asked him to consider a reassignment
after discussing it with Durham Tech's chief financial officer, Ed
Moore. Conley stated that prior to his conversation with Clark, he
was not concerned about having plaintiff teach at the jail.
When asked specifically who made the decision to not reassign
plaintiff to the jail, Conley first testified that it was a
consensus of Clark, another administrator, and himself. However,
further testimony revealed that in his deposition, Conley stated
that prior to informing plaintiff she would not be reassigned to
the jail, Clark had already instructed Conley not to reassign
plaintiff to her present position. As such, the evidence,
construed in the light most favorable to the plaintiff,demonstrates that the same person did not hire and fire plaintiff,
and therefore, defendant was not entitled to an inference of
nondiscrimination. Accordingly, we hold that the court erred in
directing a verdict for defendant with regard to plaintiff's claim
under the ADA.
For the reasons stated herein, we affirm the trial court's
order granting defendant's summary judgment motion based on
plaintiff's state law claim of retaliatory discharge. Furthermore,
we reverse the decision of the trial court directing a verdict
based on plaintiff's ADA claim and remand for further proceedings
consistent with this opinion.
Affirmed in part, reversed in part.
Judges GREENE and WALKER concur.
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