Garrett v. The Stroh Brewery Co ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40584
_____________________
W F GARRETT,
Plaintiff-Appellant,
v.
THE STROH BREWING CO.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
Docket No. 6:98-CV-314
_________________________________________________________________
December 27, 1999
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant W.F. Garrett appeals the district
court’s entry of summary judgment in favor of Defendant-Appellee
The Stroh Brewing Company. For the reasons stated below we
AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Plaintiff-Appellant W.F. Garrett (“Garrett”) originally
filed this action against Defendant-Appellee The Stroh Brewing
Company (“Stroh”) on May 20, 1998. An amended complaint was
filed on December 10, 1998. Both complaints alleged that Stroh
had violated the Age Discrimination in Employment Act (“ADEA”)
and Title VII by unlawfully discriminating against Garrett
because of his age, race, and disability.1 Garrett also alleged
that Stroh had engaged in intentional and negligent infliction of
emotional distress, breach of contract, and various retaliatory
actions.
Garrett was originally hired by Stroh in August 1976 to work
at the company’s Longview, Texas brewery. Garrett is still
employed by Stroh and continues to work at the Longview plant.
Sometime in 1996, Garrett was injured at work. Garrett was
released by his physician to return to work in September 1996.
Garrett returned to work in February 1997, but his physician
directed that he not engage in any work requiring pushing,
pulling, overhead lifting of objects over 20 pounds, standing
1
Garrett did not specifically plead that Stroh violated
the Americans with Disabilities Act (“ADA”). Rather, his
complaint alleged that Stroh, by discriminating against Garrett
because of his disability, violated “29 U.S.C. Section 621 et
seq.”, the Age Discrimination in Employment Act. Furthermore,
Garrett pleads a Title VII cause of action in his original, but
not amended, complaint. The only mention of Title VII in
Garrett’s amended complaint is in the jurisdictional statement.
Due to our disposition of this case, we need not decipher the
rather cryptic pleadings filed below. For the purposes of this
opinion, the court will assume that Garrett properly pled causes
of action under the ADA, ADEA, and Title VII.
2
over 30 minutes, repeat lifting, bending or stooping. Garrett
was able to return to work with these restrictions because Stroh
had installed a new packaging technology, known as “Lock Dot,”2
on Garrett’s bottle line. The system allowed Garrett to perform
his job within the physical limitations imposed by his doctor.
In March and October 1997, Garrett’s physician modified the
physical restrictions on his activity to include no lifting or
hand stacking of shrink-wrapped packages, no repetitive pushing,
pulling, lifting, stooping, or bending, no overhead lifting of
over 50 pounds, and no standing over two hours. These
restrictions did not affect Garrett’s ability to work on the
“Lock Dot” bottle line. Garrett’s bottle line is the only bottle
line in the Longview brewery utilizing the “Lock Dot” technology.
It is undisputed that, because of Garrett’s physical limitations,
he is unable to work on a bottle line that does not utilize the
“Lock Dot” system.
Due to periodic declines in demand and increased inventory,
Stroh is occasionally forced to stop production on the “Lock Dot”
bottle line. This requires that workers on that line be
relocated within the brewery or temporarily laid-off. Garrett
was laid-off twice, once on October 20, 1997 and again on January
21, 1998. Garrett alleges that he was laid-off in violation of
2
The “Lock Dot” system is a method of securing cases of
beer for transport. It replaced the earlier “shrink-wrap” method
in which the cases of beer were secured by being wrapped in
plastic film.
3
Stroh’s collective bargaining agreement and that, in laying him
off, Stroh discriminated against him because of his age, race,
and disability. Garrett also alleges that because of his age,
race, and disability, he was not given overtime hours when
requested and, moreover, that Stroh’s refusal to give him
overtime violated the collective bargaining agreement.
Each time Garrett was laid-off, he immediately filed
complaints with the Texas Commission on Human Rights and the
EEOC. The EEOC subsequently dismissed his complaints and issued
right-to-sue letters on October 20, 1997 and February 20, 1998.
The district court determined that Garrett’s claims arising
out of the October 20, 1997 lay-off were time-barred because he
had not filed suit within 90 days of receiving the right-to-sue
letter. The court also granted summary judgment in favor of
Stroh on Garrett’s remaining claims because it found that Stroh
had come forward with legitimate, non-discriminatory reasons for
laying off Garrett and that Garrett had failed to present
evidence that Stroh’s reasons were mere pretext for unlawful
4
discrimination.3 We agree with the reasoning of the district
court.
DISCUSSION
This court reviews a grant of summary judgment de novo,
applying the same standards as the court below. See Matagorda
County v. Law, 19 F.3d 215, 217 (5th Cir. 1994). Summary
judgment is proper when there is no genuine issue of material
fact 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 (1986). A dispute regarding a material fact is “genuine” if
the evidence is such that a reasonable jury could find in favor
of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). If the moving party meets the initial
burden of establishing that there is no genuine issue, the burden
shifts to the nonmoving party to produce evidence of the
existence of a genuine issue for trial. See Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The
nonmovant cannot satisfy his summary judgment burden with
3
The district court also found that Garrett had failed to
create a genuine issue of fact as to his claims of retaliatory
actions, breach of contract, and intentional infliction of
emotional distress. The court noted that, under Texas law,
negligent infliction of emotional distress is not a cognizable
cause of action. On appeal, Garrett only argues that the
district court improperly granted summary judgment on his
discrimination claims. Therefore, we consider his remaining
claims below to be waived.
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conclusory allegations, unsubstantiated assertions, or mere
scintillas of evidence. See id.
1. Garrett’s October 20, 1997 Complaint
The district court correctly determined that Garrett’s
claims arising out of his October 20, 1997 lay-off were time-
barred. The EEOC issued a right-to-sue letter the same day
Garrett filed his complaint. The law requires, and the right-to-
sue letter clearly stated, that Garrett had 90 days to file suit
after the EEOC issued its letter. See 42 U.S.C. § 2000e-5(f)(1);
Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996).
Garrett did not file suit until May 20, 1998, well after the 90-
day deadline. Therefore, Garrett’s claims are time-barred.
2. Garrett’s January 21, 1998 Complaint
Garrett’s January EEOC complaint alleged that he was
discriminated against because of his race, age, and disability.
In both his original and amended complaint in district court,
Garrett alleged that he was discriminated against because of his
race, age and disability, and that Stroh engaged in intentional
and negligent infliction of emotional distress, breach of
contract, and “a variety of actions retaliation [sic] in nature.”
This district court entered summary judgment in favor of Stroh on
all of Garrett’s claims.
6
In McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973), the Supreme Court articulated a burden-shifting analysis
to be used when analyzing claims of racial discrimination under
Title VII. In addition to using this standard to analyze claims
of racial discrimination, we also use it when analyzing claims of
age discrimination under the ADEA and disablity discrimination
under the ADA. See Daigle v. Liberty Life Ins. Co., 70 F.3d 394,
396 (5th Cir. 1995) (applying the McDonnell Douglas standard to
ADA claims); Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir.
1999) (applying the McDonnell Douglas standard to ADEA claims).
Under McDonnell Douglas, once a claimant has made out a
prima facie case of discrimination, the burden shifts to the
defendant to set forth legitimate, non-discriminatory reasons for
its employment decisions. See Daigle, 70 F.3d at 396. This
burden is met if the defendant can set forth evidence that, “if
believed by the trier of fact would support a finding that
unlawful discrimination was not the cause of the employment
action.” Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th
Cir. 1996) (en banc) (citing St. Mary’s Honor Center v. Hicks,
509 U.S. 502 (1993)). If Stroh produces such evidence, the
burden is shifted back to Garrett to present evidence showing
that Stroh’s stated reasons are mere pretext for otherwise
unlawful discrimination. See Moore v. Eli Lilly & Co., 990 F.2d
812, 815 (5th Cir. 1993). To withstand a motion for summary
judgment, Garrett must produce evidence creating a genuine issue
7
of fact concerning pretext. See id. This proof must “consist of
more than a mere refutation of the employer’s legitimate
nondiscriminatory reason” but must offer “some proof” that
Stroh’s actions were motivated by Garrett’s age, disability, or
race. Id. at 815-16 (citations omitted).
We assume, for the purposes of this opinion, that Garrett
has made out prima face cases of racial, age, and disability
discrimination. However, Stroh produced evidence showing that
periodic downturns in demand required that the bottle line
Garrett worked on be temporarily shut down. Stroh also showed
that, given Garrett’s physical limitations, there were no
available positions in the plant that Garrett could work at while
the bottle line was shut down.4 These are legitimate, non-
discriminatory reasons for temporarily laying-off Garrett.
Garrett has produced absolutely no evidence that Stroh’s
proffered reasons for laying him off were mere pretext for
otherwise unlawful discrimination. Garrett has failed to produce
any evidence that would create a genuine issue of fact concerning
Stroh’s motives in laying him off. Therefore, the district court
correctly granted summary judgment in favor of Stroh.
4
While there may have been other jobs within the brewery
that Garrett could physically perform, these positions were
filled by other employees at the time of the lay-offs. Under the
ADA, an employer may reasonably accommodate a disabled employee
by reassignment to a different job. However, for reassignment to
be a reasonable accommodation the “position must...exist and be
vacant.” Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th
Cir. 1997).
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CONCLUSION
For the above stated reasons, the judgment of the district
court is AFFIRMED.
9