Pritchard v. Southern Company Svs. ( 1996 )

United States Court of Appeals, Eleventh Circuit.
No. 95-6312.
Sue PRITCHARD, Plaintiff-Appellant,
v.
The SOUTHERN COMPANY SERVICES, Don Welliver, Jeff Prince,
Defendants-Appellees.
Aug. 28, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 94-N-475-S), Edwin L. Nelson, Judge.
Before CARNES, Circuit Judge, and FAY and GIBSON *, Senior Circuit
Judges.
FAY, Senior Circuit Judge:
Sue Pritchard, an employee of Southern Company Services
("SCSI") brought suit against the company and two company officials
under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §
12101, et seq., Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794, and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. The District Court granted summary
judgment for the defendants on all counts. Pritchard appealed the
court's order of summary judgment in regard to the company.
Because we find genuine issues of material fact, we reverse the
District Court's order of summary judgment for the claims under the
ADA and the Rehabilitation Act. We affirm as to the Title VII
claim.
I. BACKGROUND
Sue Pritchard was hired as an electrical engineer by SCSI in
1986, working mostly on nuclear facilities. In July 1990 she was
*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
diagnosed as having depression. This depression was exacerbated by
the stress involved with her work on nuclear projects. She
requested and received a transfer to the Quality Assurance
Department, but this work also involved nuclear energy and her
depression grew worse. In early 1992 she tendered her resignation
to her immediate supervisor, but he refused to accept it. Instead,
Pritchard was placed on paid disability leave through November of
1992, and then on unpaid disability leave.
Pritchard's doctors treated her for depression and
dysautonomia during this period. Her symptoms included profound
fatigue, suicidal thoughts, difficulty sleeping, difficulty
communicating, difficulty concentrating, and an irregular
heartbeat. She was placed on medication, and by January of 1993
her doctor stated she could return to work, but not in the nuclear
field. Working on nuclear projects exacerbated her stress and
therefore her symptoms. However, SCSI did not transfer her. The
company contends that all its engineers must have the flexibility
to perform nuclear-related work, and that it would have been her
responsibility to apply for any non-engineering job. She contends
that certain engineering jobs require little or no nuclear work,
and that she was told she would be considered for non-engineering
jobs.1 She was terminated on June 18, 1993.
Pritchard brought suit in early 1994. The District Court
granted summary judgment for the defendants on all claims.
Pritchard appealed the order of summary judgment for SCSI.
1
We recognize that this is a controversy that will have to
be resolved by the factfinder.
II. STANDARD OF REVIEW
Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the
light most favorable to the non-moving party. Augusta Iron and
Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855,
856 (11th Cir.1988). We review any conclusions of law de novo.
U.S. v. Thomas, 62 F.3d 1332, 1336 (11th Cir.1995), cert. denied,
--- U.S. ----, 116 S.Ct. 1058, 134 L.Ed.2d 202 (1996).
III. ANALYSIS
A. The Americans with Disabilities Act
In order to establish a prima facie case under the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.,
Pritchard must show that: 1) she has a disability, 2) she is a
qualified individual, and 3) she was discriminated against because
of the disability. See 42 U.S.C. § 12132. Disability is defined
as:
A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
B) a record of such impairment; or
C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Depression has been held to constitute a
mental impairment. See, e.g., Doe v. Region 134 Mental Health-
Mental Retardation Commission, 704 F.2d 1402, 1408 (5th Cir.1983).2
2
Doe involved the Rehabilitation Act of 1973, 29 U.S.C. §
701 et seq., but Congress intended for courts to rely on
However, in order to constitute a disability under the ADA, the
impairment (as suffered by the plaintiff in this particular case)3
must substantially limit a major life activity.
Pritchard claims that her depression substantially limited her
ability to function, sleep, concentrate, and communicate. The
District Court reasoned, however, that in order for Pritchard to
have been discriminated against because of her disability, she had
to have been disabled when she was terminated, not at some point in
the past. The court found that Pritchard was terminated in June of
1993 and that she presented no evidence that her depression
affected any major life activity after December of 1992. Her
doctors stated that she was unable to work in any capacity up to
December of 1992, but SCSI did not terminate her during that
period. She was put on disability leave.
By January of 1993 Pritchard was able to work in a non-nuclear
position. The court found that her condition had improved
substantially by then. Her doctor stated that she would be able to
perform up to her normal level of excellence in any non-nuclear
job. Pritchard contends that she was qualified to work as an
Electrical Designer (Substation), as a Senior Designer for SCSI
Fossil/Hydro, as an Integrated Resource Planning Analyst, and as a
Telecommunications Engineer. The job descriptions for each of
Rehabilitation Act cases when interpreting similar language in
the ADA. 29 C.F.R. § 1630.2(g) and (m) (App.).
3
"The determination of whether an individual has a
disability is not necessarily based on the name or diagnosis of
the impairment the person has, but rather on the effect of that
impairment on the life of the individual." 29 C.F.R. § 1630.2(j)
(App.).
these positions specifically demanded the ability to concentrate
and/or communicate effectively. The court ruled that:
if the plaintiff was, as she has asserted, qualified for
numerous positions, all which required the plaintiff to
possess the ability to effectively communicate ... and
concentrate, it does not follow that the plaintiff was
simultaneously substantially limited in those same areas.
Likewise, the plaintiff has presented no evidence that her
ability to sleep or "function" was substantially limited at
the time she was terminated.
(footnotes omitted). Pritchard did present evidence suggesting
problems sleeping and functioning prior to December 1992, but
according to the court:
such sleep pattern problems as well as a substantial
limitation on the ability to "function" would not be
consistent with the plaintiff's assertions, and those of her
doctors, that she was capable of regular employment in any
capacity other than one involving nuclear work.
The court concluded that Pritchard's evidence as to
impairment at the time of her termination only showed that she
could not work in the nuclear field. Pritchard contended that even
this alone would be sufficient to impair a major life activity:
working. In order for a condition to substantially limit the
ability to work, it must "significantly restrict[ ] ... 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. § 1630.2(j)(3)(I).
An impairment does not substantially limit the ability to work
merely because it prevents a person from performing "either a
particular specialized job or a narrow range of jobs." 29 C.F.R.
§ 1630.2(j)(3) (App.). Nor does the "inability to perform a
single, particular job ... constitute a substantial limitation in
the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(I).
The District Court ruled:
It is undisputed that the plaintiff's condition precludes her
from working as an engineer in the nuclear field. However, by
[her] own admissions, she is qualified and capable of working
as an engineer in the non-nuclear field, as well as in
numerous other jobs that exist at SCSI and elsewhere.
Accordingly, [her] impairment does not substantially limit the
major life activity of working.
The District Court recognized that depression is a "serious
and potentially tragic" illness, but also found that it exists in
degrees. In this case, according to the court, the illness
prevents a trained electrical engineer from working in the nuclear
field. The District Court held that such an impairment does not by
itself constitute a disability under the ADA.
We agree with the court's legal conclusion: such an
impairment, by itself, does not constitute a disability under the
ADA. However, we find that there is a genuine issue of material
fact as to whether Pritchard suffered other symptoms when she was
terminated and as to whether those symptoms substantially limited
a major life activity.
Pritchard stated in an affidavit that she suffers from
depression and dysautonomia, that she continues to have such
conditions, and that they substantially limited her ability to
function at the time of her termination. Her symptoms included
profound fatigue, difficulty sleeping and communicating, difficulty
concentrating, and experiencing suicidal thoughts. In her
deposition in June of 1994, Pritchard stated that she was still
taking medication for her conditions.
Dr. Samuel Saxon stated in an affidavit that Pritchard's
symptoms included marked fatigue, lack of energy, lack of interest,
poor concentration, memory problems, suicidal thoughts, depressed
affect, and irritability. Work in the nuclear field exacerbated
her stress and thus her symptoms. In his opinion, Pritchard was
able to return to work outside the nuclear field in January of
1993, but she was still experiencing physical and mental symptoms.
It is true that these statements may be read to conflict with
Pritchard's contention that she was able to return to work in
January of 1993. However, taking the evidence in the light most
favorable to Pritchard, it is possible that both are true: she
still suffered from these symptoms and they limited major life
activities, but she was able to control them sufficiently with the
help of medication to perform at work in the non-nuclear field. 4
We think this evidence presents a case for a jury to determine
whether she suffered from those symptoms when she was terminated,
and whether those symptoms substantially limited a major life
activity.
Moreover, the ADA defines disability as:
A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
B) a record of such impairment; or
C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Pritchard was placed on paid disability
leave through November of 1992, and then on unpaid disability
leave. This constitutes evidence that Pritchard had a record of
being impaired and that SCSI regarded her as being impaired.
4
We think the evidence in the record could be read to
conclude that Pritchard is unable to work in the nuclear field
even with the help of medication.
Again, this evidence creates genuine issues of material fact as to
whether Pritchard was disabled under the ADA.
Of course, in order to prevail, Pritchard must not only show
that she has a disability, but also that she was discriminated
5
against because of her disability and that she was a qualified
individual. See 42 U.S.C. § 12132. The District Court did not
rule on these elements in its summary judgment order. We leave the
issues open on remand.
B. The Rehabilitation Act of 1974
"The standards used to determine whether this section has
been violated ... shall be the standards applied under title I of
the Americans with Disabilities Act of 1990 ..." 29 U.S.C. §
794(d). Thus if Pritchard may be found to be disabled under the
ADA, then she may be found to be disabled under the Rehabilitation
Act.
The District Court did not decide whether SCSI is governed by
the Rehabilitation Act as a recipient of federal assistance.
Because we find a genuine issue of material fact as to whether
Pritchard was disabled, we must vacate the judgment on her claim
under the Rehabilitation Act. However, we do not decide whether
SCSI is a recipient of federal assistance, and we leave that issue
open on remand.
C. Title VII
For purposes of the Title VII claim, the District Court
assumed that Pritchard had established a prima facie case, but then
5
The failure to provide reasonable accommodations, including
a transfer to a vacant position, constitutes discrimination under
the ADA. 42 U.S.C. § 12112.
held that SCSI "satisfied its burden of production by articulating
a legitimate nondiscriminatory reason for discharge and presenting
evidence in support thereof." SCSI presented evidence that: all
engineers within the Engineering Organization must possess the
flexibility to accept nuclear related projects; engineers are
subject to transfer according to the needs of the company; male
and female employees who have refused transfers have been
terminated. In response, Pritchard's evidence must be sufficient
to allow a reasonable factfinder to conclude that SCSI's
non-discriminatory reason for discharge is not believable. See
Howard v. BP Oil Co., 32 F.3d 520, 526 (11th Cir.1994).
Pritchard's deposition testimony was the only evidence
Pritchard presented that conflicted with the nondiscriminatory
reason for discharge. Specifically, she stated that: 1) she had
heard of a male employee named Loren Secrist who was transferred to
a non-nuclear position; 2) she did not know for certain why he was
transferred but she thought it was related to the stress of nuclear
work; 3) she thought he was an engineer, but she was not certain;
4) all of her information about Mr. Secrist came from conversations
with co-workers; and 5) she could not recall the names of any of
the co-workers who had provided this information.
SCSI presented an affidavit from the Manager of Employee
Relations and Safety, Carl Watts. He stated that: 1) it was his
understanding that SCSI employment policies required Engineering
Organization employees to be able to work on nuclear projects; 2)
in his experience, these policies were followed; 3) his review of
SCSI personnel records revealed no instance in which an engineer
had been permanently assigned to a position that did not require
the flexibility to work on nuclear projects; 4) numerous engineers
had been required to either accept nuclear work or be terminated;
and 5) Loren Secrist performed nuclear related duties immediately
prior to his termination, and he was never transferred to a
non-nuclear position in order to accommodate any disability.
Ms. Pritchard's statements in her deposition constitute
inadmissable hearsay. It is true that inadmissable hearsay may
sometimes be considered by a court when ruling on a summary
judgment motion. See Church of Scientology Flag Service Org., Inc.
v. City of Clearwater, 2 F.3d 1514, 1530 (11th Cir.1993), cert.
denied, --- U.S. ----, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994);
Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1015 & n.
1 (11th Cir.1987). However, Pritchard cannot use inadmissable
hearsay to defeat summary judgment when that hearsay will not be
reducible to admissible form at trial. See McMillian v. Johnson,
88 F.3d 1573 (11th Cir.1996). There is nothing to indicate that
Pritchard's statements (which were based on the statements of
unknown co-workers) will lead to admissible evidence. On the
contrary, her statements were refuted by SCSI's evidence (the
affidavit of Carl Watts) which can be reduced to admissible form at
trial (the testimony of Carl Watts). Thus Pritchard presented no
evidence that can be reduced to admissible form at trial and which
conflicts with SCSI's nondiscriminatory reason for discharge.6
IV. CONCLUSION
6
Pritchard's Title VII claim was based upon allegations of
gender discrimination. This has nothing to do with whether SCSI
could accommodate her disability if in fact she establishes one.
We conclude that the District Court erred when it granted SCSI
summary judgment under the ADA and the Rehabilitation Act. We
affirm the summary judgment as to the Title VII claim.
AFFIRMED in part; REVERSED in part; and REMANDED for further
proceedings.