Posey v. E I DuPont De Nemours

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANGELA R. POSEY,
Plaintiff-Appellant,
v.
No. 98-1719
E. I. DUPONT DE NEMOURS AND
COMPANY, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-96-2562-3-17BD)
Submitted: January 19, 1999
Decided: March 19, 1999
Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James E. Bell, III, Eugene C. Fulton, Jr., BELL & MOORE, P.A.,
Summer, South Carolina, for Appellant. Gardner G. Courson, Laura
H. Walter, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P,
Atlanta, Georgia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Angela R. Posey appeals from the district court's grant of summary
judgment in favor of Defendant E. I. DuPont de Nemours & Com-
pany (DuPont), in Posey's employment discrimination action filed
under the Americans with Disabilities Act (ADA), 42 U.S.C.A.
§§ 12101-12213 (West 1995 & Supp. 1998), and 42 U.S.C. § 2000e-
3 (1994) (retaliatory discharge). Finding no error, we affirm.
I.
Posey began work at DuPont's nylon manufacturing plant in Cam-
den, South Carolina in 1973, where she was employed principally as
a clerical worker. Her duties included work with computers, tracking
shipments, and entering data.
During Posey's tenure at DuPont, the company underwent a num-
ber of reductions in force, cutting its workforce at the Camden plant
from 2265 employees in 1990 to 1722 in 1993 when Posey was termi-
nated. Additionally, in 1991 DuPont took steps to centralize its com-
puter operations in Richmond, Virginia, thereby phasing out Posey's
Camden position. Nonetheless, in an effort to retain those employees
whose positions had been eliminated, DuPont created four new manu-
facturing support jobs, one of which was given to Posey in August
1993. Unlike Posey's previous job, the new position required employ-
ees to work in rotating weekly shifts that accommodated the Camden
plant's twenty-four hour operations schedule.
Posey was diagnosed in November 1992 with a mild case of sys-
temic lupus erythematosus (lupus). Lupus is primarily a disease of the
connective tissues, manifesting itself by way of skin lesions, arthritis,
and joint pains. The disease may present symptoms of fatigue, fevers,
and weakness. See STEDMAN'S MEDICAL DICTIONARY 1001 (26th ed.
2
1995). Although Posey suffered some of the symptoms of the disease,
these symptoms did not interfere with her job performance until the
1993 move to a rotating shift schedule.1 When Posey began to experi-
ence the flare-up in lupus symptoms, her physician, Dr. Robert Tur-
ner, contacted DuPont at Posey's request and informed DuPont of her
condition. He also indicated that it would be in Posey's best interest
to avoid shift work or, at a minimum, reduce shift changes to no more
than once a month. (J.A. at 549).
Upon learning of Posey's circumstances, DuPont convened its
Plant Placement Committee to discuss possible solutions. The com-
mittee considered allowing Posey to alternate shifts less often, but
ultimately determined this solution to be unworkable. This decision
was based on the fact that in order to accommodate Posey, the plant
would also have to alter the rotation schedule of the three other shift
workers who fill Posey's position during other shifts. By adjusting the
schedule of these four employees the company would disrupt the con-
tinuity of the shift crews, and the committee deemed this disruption
unacceptable.
DuPont also attempted to find another position within the company
that would allow Posey to work a regular schedule. However, no posi-
tion could be found, and as a result the committee recommended that
Posey be terminated. Posey unsuccessfully pursued internal appellate
procedures, but she was released from the company in September
1993. She filed this action in the district court alleging unfair discrim-
ination under the ADA, retaliation, and breach of contract.
II.
We review the district court's grant of summary judgment de novo.
See Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 300 (4th Cir. 1998).
In her appeal, Posey claims that the district court erred in its deter-
mination that she was not disabled within the bounds of the ADA. We
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1 Posey's physician, Dr. Turner, testified that rotating shifts exacer-
bated her condition. According to Turner, lupus patients need to follow
a consistent schedule in order to maintain regular cortisol levels. Disrup-
tion of these cortisol levels could lead to a flare up of lupus symptoms.
3
disagree. Posey cannot make out a prima facie case of discrimination
under the ADA because she cannot show that she is a member of a
protected class by virtue of a disability. See Halperin v. Abacus Tech-
nology Corp., 128 F.3d 191, 196-97 (4th Cir. 1997). In order to make
out a case of disability under the ADA, Posey must show that she: (1)
suffers from a physical or mental impairment that (2) substantially
limits a major life activity. See 42 U.S.C.A. § 12102(2). The district
court correctly determined that Posey failed to show a substantial lim-
itation of a major life activity, including working. Although we note
that lupus is a disease with the potential to disrupt an individual's life
activities, both Posey's treating physician and the independent medi-
cal examiner (IME) determined that Posey suffered only mild symp-
toms of the disease.2
We find no error in the district court's determination that Posey's
condition did not affect the life activity of working. Although her cir-
cumstances prevented her from performing the duties associated with
shift work, as well as her ability to stand or walk for extended periods
of time, these alone do not create a substantial impairment under the
ADA. See Forrisi v. Bowen, 794 F.2d 931, 934-35 (4th Cir. 1986).
Rather, the pertinent question in determining whether a plaintiff is
substantially limited is whether that individual is significantly
restricted in her ability to perform 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." See Cline, 144 F.3d at 302(quoting 29 C.F.R. § 1630.2(j)(3)(I)) ("The inability to perform a sin-
gle, particular job does not constitute a substantial limitation in the
major life activity of working"). Posey's treating physician testified
that she was capable of working in positions that did not involve shift
work. (J.A. 884-85). Indeed, Posey herself admitted that the only
impediment to employment is her inability to do shift work. Consider-
ing these factors, we find that the limitation does not substantially
impair Posey's life activity of working.
As the magistrate judge noted in his Report and Recommendation,
"[i]n order to pursue a claim under the ADA in this Court, Plaintiff
must show a violation of that statute, no[t] merely that the Defen-
dant's actions may have been unjustified or unfair." (R.R. at 16).
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2 The IME found the plaintiff to be "in near remission." (J.A. at 898).
4
Because Posey has failed to show that she is a member of the class
protected by the ADA, the district court properly dismissed the claim.
Posey next asserts that the district court erred in dismissing her
retaliatory discharge claim. Posey claimed that her discharge was in
retaliation for a discrimination claim she filed against DuPont in 1992
with the South Carolina Labor Board.3 In order to establish a prima
facie case of retaliatory discharge under 42 U.S.C.§ 2000e-3 (1994),
a plaintiff must show that: (1) she engaged in protected activity such
as filing an EEO complaint; (2) the employer took adverse employ-
ment action against the plaintiff; and (3) a causal connection existed
between the protected activity and the adverse action. See Carter v.
Ball, 33 F.3d 450, 460 (4th Cir. 1994). The district court noted that
Posey simply failed to make out any causal connection between her
actions before the Labor Board and the actions of DuPont. Specifi-
cally the court noted that more than fourteen months elapsed between
the two events, and during that time DuPont had actually created a
new position for Posey to avoid having to discharge her as part of
ongoing reductions in force. In her appeal, Posey argues that the court
should have determined the time between events as nine months.4
Under either time frame, however, Posey's own testimony belies this
claim.5 Therefore, the district court properly dismissed Posey's claim
for retaliatory discharge.
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3 Posey filed a claim in September 1992 based on gender discrimina-
tion for DuPont's decision to demote several employees (including
Posey) as part of its restructuring. (J.A. at 253); (see also J.A. at 106-07,
111). As a result of the claim, DuPont compensated Posey for several
months back pay representing the difference in salary between her old
and new positions. Posey indicated in her deposition that she was satis-
fied with that outcome. (J.A. at 47-51).
4 Posey argues that the controlling date should be based on the time the
Labor Board concluded its action as opposed to the date when Posey
filed her complaint.
5 In her deposition, Posey was asked:
"Okay. But you certainly don't claim that [D]uPont decided to
end the job function just to get back [at] you because of your
DOL claim?"
She responded: "No, I do not." (J.A. at 653).
5
Finally, we note that Posey has not preserved on appeal her state
claims for breach of contract. Accordingly, we affirm the district
court's grant of summary judgment in favor of DuPont. We dispense
with oral argument because the facts and legal contentions are ade-
quately set forth in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
6