Dillon v. Roadway Express

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 29, 2005
FOR THE FIFTH CIRCUIT
________________ Charles R. Fulbruge III
Clerk
No. 04-60785
Summary Calendar
________________
ED DILLON
Plaintiff - Appellant
v.
ROADWAY EXPRESS
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson
No. 3:02-CV-1821-LN
_________________________________________________________________
Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Ed Dillon, Plaintiff-Appellant, sued his former employer for
disability and racial discrimination. The district court granted
summary judgment in favor of his employer. We AFFIRM.
I. BACKGROUND
A. Factual Background
In the mid-1980s, Plaintiff-Appellant Ed Dillon, an African-
American male, began working for Defendant-Appellee Roadway
*
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that this opinion should not be published and is not precedent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.
- 1 -
Express, Inc. (“Roadway”) as a dockworker at a Texas facility.
In the mid-1990s, Dillon transferred to Roadway’s facility in
Brookhaven, Mississippi to work as a pickup and delivery driver.
The Brookhaven facility is a satellite shipping terminal with
three full-time drivers and one casual driver. Dillon’s job
involved receiving freight at the terminal, loading it onto a
truck, and delivering it to customers.
On September 26, 1997, Dillon was assigned to truck number
10717. Dillon initially refused to drive the truck, complaining
that exhaust fumes leaked into the truck’s cab and made him sick.
After arguing with his supervisor and attempting to contact a
representative from his union, Dillon finally agreed to drive the
truck. Dillon made a few deliveries, but soon began suffering
from headaches and nausea. He proceeded to the emergency room at
Hardy Wilson Hospital in Hazelhurst, Mississippi. After being
examined and given medication, Dillon was discharged from the
hospital. He then completed his deliveries and returned the
truck to the Brookhaven terminal.
Due to medical problems he claims stem from being forced to
drive truck number 10717, Dillon has been unable to work since
September 26, 1997. Dillon was initially diagnosed as having
carbon monoxide poisoning suffered as a result of the fumes
leaking into the cab of truck number 10717. However, after
extensive medical testing, Dillon’s symptoms were diagnosed as
having a psychological, rather than physical, origin. His
- 2 -
current diagnosis is post-traumatic stress disorder and
environmental sensitivity syndrome due to work-related factors.
Dillon claims his present symptoms include dizziness,
irritability, loss of short-term memory, jitteriness, anxiety,
temporary respiratory difficulties, auditory difficulties, hives,
muscle weakness, and temporary paralysis. These symptoms
allegedly are triggered by stress and exposure to various fumes
including those from anti-freeze, diesel fuel, and overheated
radiators. As a result of these symptoms, Dillon currently
receives disability benefits from the United States Social
Security Administration for his claimed permanent disability.
In October 1999, Dillon began consulting with Dr. Jule
Miller, a psychologist, on a regular basis. By November 2000,
Dr. Miller felt that Dillon’s symptoms had improved sufficiently
for him to attempt to return to work. On November 20, 2000, Dr.
Miller wrote a letter clearing Dillon to return to work subject
to two restrictions. The first restriction was that Dillon
should be allowed to “leave work if his stress level gets too
high, only to return when he feels it is manageable again.” The
second restriction was that Dillon “continue to make his
appointments with me, even if that means having to miss some
work.”
Roadway sought from Dr. Miller clarification regarding his
proposed accommodations. On January 22, 2001, Dr. Miller sent a
second letter in which he stated that Dillon:
- 3 -
is not totally cured and will need some
accommodations to be made. Particularly,
there may be times when the stress level
becomes too much for him and he will need to
walk off the job for a time. This is most
likely to happen during a conflict with
management or from over-exposure to exhaust
fumes. . . . He should only drive equiptment
[sic] that fully meets Department Of
Transportation regulations, particularly in
regard to exhaust fumes.
On February 15, 2001, Roadway informed Dillon that Dr.
Miller’s letters represented an unacceptable return to work
release. On March 12, 2001, Dr. Miller wrote a third letter in
which he stated:
If Mr. Dillon is stressed too much, it is
dangerous for his health and he needs to leave
to prevent further psychological damage. He
may only have to leave for an hour. . . . Or
he may have to take the whole day off. . . .
To not allow him to do this is to not provide
reasonable accommodation to someone with a
medical disability, which, as you know, is
illegal.
On March 16, 2001, Roadway sent a letter to Dillon informing
him that Dr. Miller’s proposed accommodations were not
reasonable. In closing, the letter informed Dillon that he
should get in contact with the company if he had “any other
suggestions of how to facilitate a return . . . .”
B. Procedural Background
On September 10, 2001, Dillon filed a complaint with the
United States Equal Employment Opportunity Commission. Dillon
received his right to sue letter on September 26, 2002. On
- 4 -
December 26, 2002, Dillon filed suit in the United States
District Court for the Southern District of Mississippi. Dillon
raised three claims in his complaint, two of which are relevant
here.1 First, he alleged that in failing to grant him the
accommodations outlined in Dr. Miller’s letters, Roadway violated
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq. (2000). Second, Dillon alleged that Roadway’s failure to
grant him the requested accommodations was motivated by racial
animus in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq. (2000).
On February 17, 2004, Roadway filed a motion for summary
judgment. On August 2, 2004, the district court granted
Roadway’s summary judgment motion. The district court found that
Dillon was not disabled within the meaning of the ADA. Further,
the court found that even if Dillon were disabled, he is not
otherwise qualified to return to work because Dr. Miller’s
accommodations were unreasonable. Finally, as to the Title VII
claim, the court found that the record contained no evidence to
support Dillon’s claims of racial discrimination.
Dillon now appeals the district court’s grant of summary
judgment.
II. STANDARD OF REVIEW
1
Dillon also raised a state law retaliation claim, which
the court found was not cognizable under Mississippi law. Dillon
does not appeal this determination.
- 5 -
We review a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.
Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.
2001). Summary judgment is appropriate if there are no genuine
issues of material fact and the movant is entitled to judgment as
a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The initial burden to demonstrate the
absence of a genuine issue of material fact is on the movant.
Celotex, 477 U.S. at 324. Upon showing that there is an absence
of evidence to support an essential element of the non-movant’s
case, the burden shifts to the non-movant to establish that there
is a genuine issue of material fact in dispute. Id.III. ANALYSIS
A. Dillon’s ADA Claim
To establish a prima facie case for discrimination under the
ADA, Dillon must prove that: (1) he is disabled; (2) with
reasonable accommodations, he is qualified for the position; and
(3) he suffered an adverse employment decision based on his
disability. Still v. Freeport-McMoran, Inc., 120 F.3d 50, 51-52
(5th Cir. 1997) (per curiam). The ADA defines a disability as a
“a physical or mental impairment that substantially limits one or
more of the major life activities . . . .” 42 U.S.C. § 12102(2)(A) (2000). The phrase “major life activities” includes
“functions such as caring for oneself, performing manual tasks,
- 6 -
walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. 1630.2(i) (2004). On appeal, Dillon
contends that the district court erred in ignoring evidence that
his mental impairment substantially limits his ability to perform
the major life activities of breathing, hearing, and walking.
We find Dillon’s arguments regarding the district court’s
supposed errors unavailing. As for his claim that he has
difficulty breathing, Dillon argues that the record is replete
with evidence showing that his symptoms are brought on, in part,
by inhaling fumes. Dillon reasons that because the act of
inhalation is a necessary part of breathing, he is substantially
limited in his ability to breathe. This evidence does nothing
whatsoever to indicate that Dillon is hampered in his ability to
breathe. Rather, all it shows is that the act of breathing is a
trigger for other alleged impairments. The record also lacks
evidence showing that Dillon is substantially limited in his
ability to hear. The only symptom he complains of is an
occasional inability to localize a sound, i.e., ascertain the
direction from where the sound is coming. He does not contend
that he suffers from any actual hearing loss. Thus, there is no
substantial limitation on his ability to hear. Finally, the
record also does not reflect that Dillon is substantially limited
in his ability to walk. Dillon claims that the inhalation of
fumes sometimes triggers muscle weakness. At times, the weakness
is so severe that Dillon finds it difficult to walk. Thus,
- 7 -
Dillon argues, he suffers from temporary paralysis. This
“paralysis” does not qualify as a disability because it is merely
the most extreme manifestation of an only occasional symptom. We
agree with the district court’s view that such an occasionally
occurring problem does not qualify as a substantial limitation.
See Waldrip v. Gen. Elec. Co., 325 F.3d 652, 656-57 (5th Cir.
2003) (holding that occasional flare-ups of plaintiff’s chronic
pancreatitis which required him to miss work did not qualify as a
disability); Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir.
1997) (“We have previously rejected attempts to transform
temporary afflictions into qualifying disabilities.”).
Because Dillon is not disabled, we need not consider whether
Roadway failed to reasonably accommodate him. See Blanks v.
Southwestern Bell Communications, Inc., 310 F.3d 398, 402 (5th
Cir. 2002) (“We conclude that Blanks is not entitled to ADA
protection, hence, we need not decide whether [Southwestern Bell]
failed to reasonably accommodate him . . . .”).
B. Dillon’s Title VII Race Discrimination Claim
To state a prima facie case for discrimination under Title
VII, a plaintiff must show that: (1) he is a member of a
protected class; (2) he was qualified for the position; (3) he
suffered an adverse employment action; and (4) others similarly
situated were more favorably treated or that he was replaced by
someone outside the protected class. See, e.g., Okoye v. Univ.
- 8 -
of Tex. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
The record is devoid of any evidence as to the fourth element of
the prima facie case. There is simply no evidence to suggest
that similarly situated white employees were treated any
differently. Dillon has also not pointed to any evidence
indicating who has been selected to take over his old job. In
the end, there is simply nothing to suggest that Roadway’s
refusal to allow Dillon to return to work derives from anything
other than his inability to do his job with reasonable
accommodations.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
- 9 -