UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-10352
DOUGLAS C. HAMILTON,
Plaintiff-Appellant,
VERSUS
SOUTHWESTERN BELL TELEPHONE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
March 23, 1998
Before JOLLY, DUHÉ, PARKER, Circuit Judges
DUHÉ, Circuit Judge
Douglas C. Hamilton sued his former employer, Southwestern
Bell Telephone Company for discrimination under the Americans with
Disabilities Act1 and for wrongful termination under Texas law. He
appeals the district court’s grant of summary judgment in favor of
Southwestern Bell. Because he fails to show a disputed issue of
material fact as to the existence of a disability as defined by the
Act, he does not meet the ADA’s threshold requirement. He also
fails to show a disputed issue of fact that his firing was a result
of anything other than his egregious misconduct. We affirm the
1
42 U.S.C. § 12101 et seq.
grant of summary judgment on both claims.
I.
Douglas C. Hamilton (“Hamilton”) had been an at-will employee
at Southwestern Bell Telephone Company (“BELL”) nearly 20 years
when he was fired for his heated, on-the-job encounter with another
employee. He claimed that his firing was a violation of the
Americans with Disabilities Act of 1990 (“ADA”), or alternatively
was an unlawful discharge for refusing to participate in Project X,
a BELL procedure that he claims did not follow the Public Utilities
Commission (“PUC”) guidelines for utilities disconnections.
About four months before he was fired, Hamilton rescued a
drowning woman. For a time following the rescue, he experienced a
variety of mental disturbances and suffered “extreme fatigue” that
limited his ability to perform manual tasks, such as mowing his
lawn. He told his supervisor, Dennis Dorsey (“Dorsey”), that his
pastor thought these problems were Post Traumatic Stress Disorder
(“PTSD”) symptoms.
A month later, Hamilton verbally abused and struck a co-worker
(“the incident”) on the job. Dorsey referred Hamilton to BELL’s
Employee Assistance Program (“EAP”), where a social worker
concluded Hamilton was suffering from agitated depression and some
post-traumatic symptoms. The social worker referred him to a
private counselor; he was also evaluated by a psychiatrist, Babette
Farkas (“Farkas”). Both the social worker and Farkas reported
PTSD. During this counseling and evaluation period, BELL received
from members of Hamilton’s department an anonymous letter that
2
accused him of being a “disgusting, dangerous and abusive man and
manager.”
Hamilton, believing that his job pressures exacerbated his
PTSD, sought to reduce the stress he experienced in his position in
BELL’s revenue management department. He expressed concern about
participating in Project X, a project that discontinued service,
without the usual 10-day notice, to minority customers whose
accounts were delinquent. He resisted participating in the project
because he believed that if he participated he could be personally
charged with committing a third degree felony. Although he claimed
to have drafted memoranda protesting Project X, no copies of the
correspondence exist.
After he was fired, Hamilton sued BELL. The district court
granted summary judgment on Hamilton’s ADA claim, finding no
genuine fact issue as to whether his medical condition
substantially limited any major life activities such that his PTSD
could be considered an impairment under the ADA. It also
determined that Hamilton failed to adduce any evidence showing BELL
fired him solely because of his disability. The district court
also granted summary judgment on the state unlawful discharge
claim, finding that there was no genuine issue as to whether BELL
fired Hamilton solely because he abandoned Project X. Hamilton now
appeals.
II.
We review a grant of summary judgment de novo, applying the
same standard as the district court. Guillory v. Domtar
3
Industries, Inc., 95 F.3d 1320 (5th Cir. 1996); Armstrong v. City
of Dallas, 997 F.2d 62 (5th Cir. 1993). Summary judgment is proper
when no issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
We review fact questions in the light most favorable to the
nonmovant and questions of law de novo. Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723 (5th Cir. 1995).
III.
A.
To make out a prima facie case of discrimination under the ADA
Hamilton must show that (a) he has a disability; (b) he is a
qualified individual for the job in question; and (c) an adverse
employment decision was made because of his disability. See 42
U.S.C. § 12112(a).2 The threshold issue in a plaintiff’s prima
facie case is a showing that he suffers from a disability protected
by the ADA.3 That statute confers a special meaning to the term
“disability”:
(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 an impairment; or
2
Cf. Still v. Freeport-McMoran, Inc., 120 F.3d 50, 51 (5th
Cir. 1997)(per curiam); Turco v. Hoechst Celanese Corp., 101 F.3d
1090, 1092 (5th Cir. 1996) (listing as the third element an
employment decision made solely because of the disability but never
reaching an analysis of that element and citing Rizzo v. Children’s
World Learning Centers, Inc., 84 F.3d 758 (5th Cir. 1996)(listing
as an element a decision made solely because of the disability but
later describing the necessary factual determination as whether an
adverse action was “taken because of her disability.” Id. at 765.))
3
Rogers v. International Marine Terminals, Inc., 87 F.3d
755, 758 (5th Cir. 1996).
4
(C) being regarded as having such an impairment.4
Hamilton claims to suffer from PTSD, which impairment,
standing alone, is not necessarily a disability contemplated by the
ADA. The statute requires an impairment that substantially limits
one or more of the major life activities.
The ADA defines neither “substantially limits” nor “major life
activities,” but the regulations promulgated by the EEOC under the
ADA provide significant guidance. Whether an impairment is
substantially limiting5 is determined in light of (1) the nature
and severity of the impairment, (2) its duration or expected
duration, and (3) its permanent or expected permanent or long-term
impact.6 The EEOC regulations adopt the same definition of major
life activities used in the Rehabilitation Act.7 “Major life
activities means functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.”8
4
42 U.S.C. § 12112(2).
5
To substantially limit means:
(i) Unable to perform a major life activity that the average
person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular major
life activity as compared to the condition, manner or duration
under which the average person in the general population can
perform the same major life activity.
29 C.F.R. § 1630.2(j)(1)(i)(ii).
6
29 C.F.R. § 1630.2(j).
7
Dutcher, 53 F.3d at 726.
8
29 C.F.R. § 1630.2(i) provides an illustrative listing of
activities.
5
To determine if Hamilton has presented facts that indicate his
PTSD is an ADA disability, we first examine whether his PTSD is an
impairment that substantially limits any major life function other
than working.9 Only if there is no evidence of impairment to the
other major life functions is an impairment to working considered.10
The EAP counselor found that Hamilton presented some symptoms
of PTSD and Farkas, his treating psychiatrist, diagnosed PTSD.
Hamilton claims his PTSD caused him to overeat to the point of
being nauseous and having to go to bed, thus impairing his ability
to care for himself. He attributes his thoughts of suicide and
difficulty in concentration to the mental disorder. Additionally,
Hamilton described episodes of fatigue that made it difficult for
him to mow his lawn.
By his own admission, however, these impairments no longer
exist and the major life functions described by the EEOC
regulations have not been affected. We have noted that “[t]he EEOC
regulations provide that temporary, non-chronic impairments of
short duration, with little or no permanent long-term impact, are
usually not disabilities.”11 Consequently, there was no evidence
offered on which a jury could find that this impairment
substantially limited a major life activity other than working.
We now examine the effect Hamilton’s PTSD had on the major
9
Dutcher, 53 F.3d at 726, n. 10.
10
Id.
11
Rogers v. International Marine Terminals, Inc., 87 F.3d at
759.
6
life activity of working. With regard to working,
[S]ubstantially limits means significantly restricted in 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. The
inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity
of working.12
Hamilton presents no evidence that his disability prevents him
from performing an entire class of jobs, or even a broad range of
jobs. The symptoms he reported included crying when faced with
stress, loss of temper, and an inability to deal with customer
relation issues. By his own admission, however, Hamilton’s
performance level was “still ahead of his peers”. He worked his
regular hours until his termination except for the week he was
given off to adjust to his medication.13 Although Dr. Farkas
diagnosed Hamilton’s condition as PTSD, she did not identify
specific activities within his work environment that would be
substantially limited by PTSD. Her prognosis was that Hamilton
would be able to function normally without any medication.
Interestingly, despite his claim that stress in his job exacerbated
his PTSD and that the mental disorder made him unable to deal with
customer relations, Hamilton ran his own software distribution
business for almost a year after his discharge. He then became a
senior consultant with another firm.
12
29 C.F.R. § 1630.2(j)(3)(i).
13
The existence of an impairment is to be determined without
regard to mitigating measures such as medicines, or assistive or
prosthetic devices. 29 C.F.R. §1630.2(h), App.
7
Hamilton retains the ability to compete successfully with
similarly skilled individuals and no facts indicate that he is
unable to perform a class of jobs nor a broad range of jobs. We
agree with the district court that any work impairment Hamilton may
have suffered was merely temporary; we have previously rejected
attempts to transform temporary afflictions into qualifying
disabilities.14 We hold that he has failed to present evidence to
satisfy the threshold requirement of an ADA claim - that he has an
impairment that substantially limits a major life activity.
Having no ADA recognized disability, Hamilton has thus failed
to provide summary judgment evidence that he has a record of such
an impairment15 that substantially limits a major life activity.
Under the third prong of an ADA disability, Hamilton must
produce sufficient summary judgment evidence to create an issue of
fact that BELL regarded him as having an impairment that
substantially limited a major life activity, whether or not the
impairment existed.16 BELL continued to employ Hamilton after he
14
Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997) and
cases cited therein.
15
42 U.S.C. § 12102(2)(B).
16
42 U.S.C. § 12102(2)(C). “Is regarded as having such an
impairment” means that the individual:
(1) Has a physical or mental impairment that does not
substantially limit major life activities but is treated
by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially
limits major life activities only as a result of the
attitudes of others toward such impairment; or
(3) Has none of the impairments defined in paragraph (h) (1)
or (2) of this section but is treated by a covered entity
as having a substantially limiting impairment.
29 C.F.R § 1630.2(l)(1-3).
8
reported his mental difficulties. He retained his managerial
responsibilities following the incident until BELL’s review of the
episode was completed. For an employer to regard an impairment as
substantially limiting work, the employer must regard an individual
as significantly restricted in his ability to perform a class or
broad range of jobs.17 Hamilton offered no evidence that BELL
regarded him to be so limited.
Hamilton presented no summary judgment evidence that workplace
attitudes caused his symptoms, an alternate requirement for a
finding that an employee is regarded as having an impairment.
Hamilton’s tearfulness, overeating, fatigue, and violent outbreak
against a co-employee did not occur only as a result of the
attitudes of others but were, he admits, symptomatic of PTSD. The
anonymous letter submitted to BELL supervisors accusing him of
being violent was not the cause of Hamilton’s symptoms.
Also, there is no evidence presented that, although his PTSD
did not rise to the level of an ADA disability, BELL treated
Hamilton as having a substantially limiting impairment. In sum, we
find that the record is without support for Hamilton’s claim that
the mental impairments imposed by his PTSD are severe enough or of
sufficient duration to constitute a disability under the ADA.
B.
Furthermore, even if Hamilton were disabled, the ADA requires
that BELL’s adverse employment action be taken because of his
17
Burch v. Coca-Cola Co., 119 F.3d 305, 322 (5th Cir. 1997);
Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996).
9
disability.18 Hamilton was not terminated because of his disability
but rather because he violated BELL’s policy on workplace violence.
Several weeks after the rescue, Hamilton, slamming an office
door, angrily confronted a physically smaller female manager in
front of witnesses after she returned to work from a shopping trip.
In response to her appeal to not speak to her in such a tone, he
slapped her hand down, yelling that she “get that f___ing finger
out of my face.” Additional profanity followed. He stormed from
the office but then returned to continue his abusive harangue,
yelling “You f ing bitch!” BELL found this behavior to be an
egregious violation of its policies, suspended Hamilton at the
beginning of February and discharged him at the end of that month.
Although Hamilton argues that the incident was caused by his
PTSD, we are persuaded that the ADA does not insulate emotional or
violent outbursts blamed on an impairment.19 An employee who is
fired because of outbursts at work directed at fellow employees has
no ADA claim. BELL had instituted its policy against workplace
violence, with provisions for suspension and dismissal for
“extremely severe” offenses, before Hamilton’s misconduct. As a
BELL employee, Hamilton was held accountable for violating this
policy. BELL cited this conduct as its reason for firing Hamilton;
we do not regard this reason as pretextual merely because BELL
18
42 U.S.C. § 12112(a).
19
Little v. Federal Bureau of Investigation, 1 F.3d 255 (4th
Cir. 1993) (egregious behavior of an alcoholic, whether or not
disabled, provided grounds for dismissal).
10
failed to describe the misconduct as workplace violence until the
Texas Employment Commission hearing.
The cause of Hamilton’s discharge was not discrimination based
on PTSD but was rather his failure to recognize the acceptable
limits of behavior in a workplace environment. The nature of the
incident, shown by the record, presents a clear case in which
Hamilton was fired for his misconduct in the workplace. We adopt
for an ADA claim the well-expressed reasoning applied in the
context of a protected activity-retaliatory discharge claim: the
rights afforded to the employee are a shield against employer
retaliation, not a sword with which one may threaten or curse
supervisors.20 Hamilton can not hide behind the ADA and avoid
accountability for his actions.
C.
Having decided above that the reason for Hamilton’s discharge
was his egregious and violent behavior, we find it unnecessary to
further address his claim of unlawful discharge.
IV.
For the reasons cited above, we affirm the grant of summary
judgment.
AFFIRMED.
20
Florida Steel Corp., v. NLRB, 529 F.2d 1225, 1234 (5th Cir.
1976) citing Corriveau & Routhier Cement Block, Inc. v. NLRB,410
F.2d 347, 350 (1st Cir. 1969).
11