ALL CASE STUDIES
jenins6
case_6.docx997 WL 89227
United States District Court,
N.D. Illinois,
Eastern Division.
Lorenzo CLEMONS, Plaintiff,
v.
The BIG TEN CONFERENCE, Defendant.
No. 96 C 0124.
Feb. 24, 1997.
Former employee, who had been terminated from his position as college football official after he failed to comply with employer's instructions to lose weight, brought action against former employer under Americans with Disabilities Act (ADA), Title VII, and § 1981. On employer's motion for summary judgment, the District Court, Hart, J., held that: (1) employee failed to perform his job satisfactorily, and thus failed to establish prima facie case under Title VII, and (2) employer did not regard employee as being disabled under ADA.
Motion granted.
West Headnotes (6)
1
Civil Rights
Discharge or Layoff
In determination of whether employee performed job satisfactorily, for purposes of prima facie case under Title VII, the critical issue is whether employee was performing well at time of termination. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
2
Civil Rights
Discharge or Layoff
Fact that individual may have been qualified for his or her job in the past does not mean that he or she is qualified at a later time, for purposes of determining whether employee had established prima facie case under Title VII. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
3
Civil Rights
Discharge or Layoff
Employee did not perform his job as college football official satisfactorily, and thus failed to establish prima facie case under Title VII, where he was rated 43rd out of 45 officials under conference rating system, he made more mistakes than any other official as judged from review of game tapes, and he failed to comply with employer's directive to lose weight. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
4
Civil Rights
Perceived Disability; “Regarded As” Claims
Employer did not regard employee, whom it terminated from position as college football official after he failed to comply with its directive to lose weight, as being incapable of performing an entire class of jobs, and thus did not regard him as being disabled under ADA, where employer knew that employee had held job as salesperson and that employee was currently working for sheriff's office and pursuing acting career. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2).
5
Civil Rights
Perceived Disability; “Regarded As” Claims
Employee cannot demonstrate that he or she was regarded by employer as being disabled under ADA on basis of specific job of employee's choosing. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2).
6
Civil Rights
Impairments in General; Major Life Activities
Employee's inability to perform a particular job for a particular employer is not sufficient to establish handicap under ADA; the impairment must substantially limit employment generally. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2).
MEMORANDUM OPINION AND ORDER
HART, District Judge.
*1 Plaintiff Lorenzo Clemons, brings this action alleging that The Big Ten Conference (“Big Ten”) discriminated against him by canceling his contract for the 1994 football season on the basis of his obesity and by treating similarly-situated individuals outside of his protected class differently. Plaintiff seeks damages under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), Title VII of the Civil Rights Act of 1964, 42 U.S.S. § 2000e et seq. (“Title VII”), and 42 U.S.C. § 1981 (“ § 1981”). Presently pending is the Big Ten's motion for summary judgment on all claims.
I. BACKGROUND
Plaintiff, who is African–American, began officiating football games for the Big Ten in 1988 under a series of one-year contracts. From 1988 through 1993, plaintiff officiated approximately 11 games a year. Each Big Ten football game is staffed by a crew of seven officials and, at all times relevant to this lawsuit, plaintiff was an umpire. Although the position of umpire generally requires the least long-distance running of the seven positions, it nonetheless requires a substantial amount of quick movement and running during the course of the game to maintain a proper position to accurately officiate the game. When plaintiff was initially hired, he weighed 235 pounds.
In 1990, the Big Ten revised its system for rating its officials in order to upgrade officials' accountability and to better quantify their performance. David Parry, who was hired in July 1990 as the Big Ten's Supervisor of Football Officials, was responsible for nearly all aspects of the supervision of the officiating staff, including the overhaul of the rating system. Parry patterned the new rating system after the National Football League and other major college conference systems. The new system calculated each officials' performance by averaging the ratings given to the official by Parry himself, the coaches at each game and technical advisors. Technical advisors are former, experienced football officials. In order to evaluate the officials, Parry either observed the officials personally or reviewed game tapes, or both.
In 1991, the Big Ten began using its current assessment criteria, comprising five areas of major concern relating to an official's performance: (1) appearance and physical condition; (2) position, coverage and movement; (3) consistency, common sense and judgment; (4) poise, decisiveness and game control; and (5) relationship with the coaches, players and others. Parry testified that the appearance and physical condition of the officials refers to being trim, looking sharp, endurance and the official's ability to cover, move and be in position to make calls. Generally, the better field position an umpire achieves, the greater the probability that the umpire will make the correct call.
In his first year as a Big Ten official, plaintiff was ranked 21st out of 41 officials. In 1990,1 plaintiff was ranked 36th out of 44 officials and his written evaluation indicated that he should lose 20 pounds. Although plaintiff's ranking placed him in the bottom third of officials, he was selected to officiate the Citrus Bowl in 1990. In 1991, plaintiff was ranked 49th out of 49 officials and his evaluation stated “appearance, gaining weight.” Again, plaintiff was selected to officiate a bowl game despite his low ranking. In 1992, plaintiff remained ranked in the bottom third for officials. In April 1992, Parry called plaintiff to discuss his weight. Parry asked plaintiff to report to the August 1992 clinic at 270 pounds. Plaintiff reached his goal weight of 270 pounds in October 1992.
*2 In 1993, plaintiff was ranked 43rd out of 45 football officials. Plaintiff was ranked last out of the six umpires. Plaintiff's written evaluation stated that plaintiff's “[w]eight hinders ratings for appearance and movement. Errors in judgment 12/too many. (Generally on the marginal to technical side.)” Twelve errors was the most of any official for the 1993 season. On February 4, 1994, Parry discussed plaintiff's performance with him, including the negative impact Parry believed plaintiff's weight had on his performance. Plaintiff weighed 277 pounds at the beginning of the 1993 season; at the end of the season he weighed 280 pounds. Parry placed plaintiff on probation and told him he would receive a reduced game schedule for the 1994 season. Parry told plaintiff to lose weight and report to the next clinic in August 1994 at 270 pounds. On February 10, 1994, Parry sent plaintiff a letter confirming that plaintiff was placed on probation:
As per our visit, February 4, 1994, this letter serves as a reminder regarding your status on our staff.
Your ratings must be improved and higher.
Based upon your ratings for the 1993 season, which you finished forty-three (43) out of forty-five (45) over-all staff ratings and six (6) out of six (6) umpires (last) in your individual position ratings, you are formally put on notice/probation for the 1994 season. If your ratings do not significantly improve, you will be released from the football staff.
...
During our conversation we discussed your ratings as they related to appearance, movement, and judgments. I suggest you review these concerns.
In April 1994, the Big Ten renewed plaintiff's contract. When plaintiff reported to the clinic on August 5, 1994, however, he weighed at least 285 pounds. Two days later, the Big Ten canceled plaintiff's contract for the 1994 season.
Plaintiff, however, was not left without a job. Plaintiff maintains his regular position as the Inter–Governmental Liaison for the Cook County Sheriff's Office. Prior to this job, plaintiff was a Kimberly–Clark salesperson. Parry was aware of these jobs, as well as that plaintiff was pursuing a career in acting. Both parties agree that plaintiff's weight has no effect on his ability to perform his other jobs.
On January 6, 1996, plaintiff filed this three-count action. In Count I, plaintiff alleges that he was discharged due to his perceived disability of obesity in violation of the ADA. In Count II, plaintiff asserts that the Big Ten violated Title VII by discriminating against him on the basis of his race. In Count III, plaintiff alleges that the Big Ten violated his right to make and enforce contracts on the same terms as white citizens, in violation of 42 U.S.C. § 1981.
II. SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS–TV, 846 F.2d 448, 452 (7th Cir.1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir.1988). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Jakubiec, 844 F.2d at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A. Title VII and § 1981 Claims
*3 A plaintiff may establish a discrimination under Title VII or § 19812 either by presenting direct evidence of discrimination or by following the burden-shifting method set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff has chosen the latter route. Under the McDonnell Douglas burden-shifting analysis, if plaintiff establishes a prima facie case, the burden of production shifts to the defendant to state a legitimate, nondiscriminatory reason for the employment action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the defendant carries this burden, the presumption of discrimination drops from the case. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), and the plaintiff must demonstrate that the defendant's stated reason for the adverse action is a pretext for an illegitimate, discriminatory reason. McDonnell Douglas, 411 U.S. at 804.
Plaintiff must establish a prima facie case of discrimination in order to withstand summary judgment. Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir.1993). Under the McDonnell Douglas framework, plaintiff may prove a prima facie case of discrimination by showing that (1) he belongs to a protected class; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) his employer treated similarly situated employees outside his classification more favorably. Little v. Cox's Supermarkets, 71 F.3d 637, 642 n. 3 (7th Cir.1995). It is not necessary that plaintiff demonstrate that he was replaced by someone outside the protected class. Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir.1996) (citing O'Connor v. Consolidated Coin Caterers Corp., 517U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996)). Rather, “[t]he central question in any employment-discrimination case is whether the employer would have taken the same action had the employee been of a different race (age, sex, religion, national origin, etc.) and everything else had remained the same.” Id.
1
2
The Big Ten argues that it is entitled to summary judgment because plaintiff has not established he performed adequately as a football official. To show that he was performing adequately on the job, the critical issue is whether plaintiff was performing well job at the time of his termination. See Hong, 993 F.2d at 1262. Thus, the only relevant time frame concerning plaintiff's performance is the 1993 season and afterwards. “The fact that an individual may have been qualified in the past does not mean that he is qualified at a later time.” Karazanos v. Navistar Intern. Transp. Corp., 948 F.2d 332, 336 (7th Cir.1991) (internal citations omitted).
3
The Big Ten asserts that plaintiff's performance in the 1993 season was not adequate for numerous reasons. First, plaintiff was rated 43rd out of 45 officials. Plaintiff made the most mistakes of any other official as judged from review of game tapes by coaches, technical advisers, crew chiefs and Parry. In addition, the Big Ten points out that several coaches who evaluated plaintiff were highly critical of his officiating. For the October 23, 1993 Iowa–Michigan State game, Coach Hayden Fry gave plaintiff the lowest marks of the officiating crew and wrote on the back of plaintiff's evaluation form “Don't ever send him to officiate another Iowa game.” (Emphasis in original). The head football coach at the University of Minnesota, Jim Wacker, wrote Parry a letter dated November 10, 1993 complaining about plaintiff. Wacker stated that plaintiff “was consistently in poor position during our Illinois game causing our adjusting [Linebackers] and [Strong Safeties] to go around him rather than him moving his position on the field. When asked if he could move his position, he responded in a rather ugly manner and still did not adjust his position....” In February 1994, plaintiff was placed on probation because of his poor ratings and was directed to take steps to improve his performance by losing weight. Plaintiff failed to comply with Parry's directive to lose weight by the August 1994 clinic.
*4 In response, plaintiff argues that he performed adequately because he satisfied all of the expectations contained in a manual distributed by the Big Ten at the annual clinic for officials (“Manual”). Plaintiff asserts that the Manual contains no requirement as to weight. Plaintiff acknowledges that the Manual states that officials should be in good physical condition in order to keep up with the athletes, but argues he cannot be deemed to have failed this requirement because no scale or chart exists to measure this expectation. Plaintiff's argument is without merit. The Big Ten may legitimately expect that its officials maintain themselves in a physical condition such that they are able to move down the field with the football players. The Big Ten's expectations were communicated to plaintiff orally and in his written evaluations. Simply because the Big Ten did not employ height-weight charts does not make the physical condition requirement invalid. Plaintiff has not provided any evidence that an official that cannot keep up with the athletes can nonetheless perform adequately. Plaintiff's evaluations demonstrate that he failed to keep himself in a physical condition that enabled him to keep up with the athletes and place himself in the proper position to make accurate calls.
Plaintiff also argues that satisfactory performance ratings were not a condition of officials' contracts because the Manual does not state that consistently low ratings would result in dismissal. For the purposes of this prong of plaintiff's prima facie case, however, the question is not whether the Manual required that officials achieve satisfactory performance ratings, but simply whether plaintiff was performing adequately at the time of his dismissal. Moreover, it need not have been stated in the Manual that an official's poor performance could lead to dismissal, since plaintiff had been expressly warned (in the February 10, 1994 letter from Parry, for example) of this consequence. Plaintiff admits in his brief that Parry circulated “numerous memoranda” from 1990 through 1994 and “[s]ome of the memoranda state that consistent [sic] low ratings may mean dismissal from the conference.” In short, plaintiff's performance ratings represent a valid measuring stick on which to gauge plaintiff's performance. Cf. Hong, 993 F.2d at 1262 (using performance evaluations as evidence of inadequate performance).
Plaintiff, who was ranked 43rd out of 45 officials and received negative comments by several coaches, was not performing adequately. Plaintiff argues, however, that his performance was acceptable because he was only 2.553 points away from the middle third and “[n]o matter how good the scores are for all of the officials there will always be a bottom third with respect to this individual head to head ranking.” This argument does not assist plaintiff in making out his prima facie case. Plaintiff must do more than allege that his performance was not far from being satisfactory. He must bring forth some evidence that his performance was adequate. Plaintiff does not assert any facts from which it may be concluded that plaintiff met the expectations of the Big Ten, nor does plaintiff attempt to refute his substandard performance evaluations or the negative comments of his performance from football coaches. Plaintiff's evaluations, which represent a composite of ratings from Parry, coaches and technical advisors, demonstrate that his performance was substandard. Plaintiff has not created an issue of fact as to whether his performance was satisfactory. It was not. Summary judgment will be granted in the Big Ten's favor as to Count I.
B. ADA Claim
*5 The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A plaintiff asserting a claim under the ADA bears the initial burden of establishing a prima facie case. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir.1996). The Big Ten asserts that summary judgment on plaintiff's ADA claim is proper because plaintiff has failed to establish a prima facie case.
4
To satisfy this burden, plaintiff must show that (1) he suffers from a disability as defined by the ADA; (2) he is otherwise qualified to perform his job; and (3) he was discharged because of his disability. See id. Plaintiff will be considered disabled if he demonstrates that (1) he has a physical or mental impairment which substantially limits one or more of his major life activities; (2) he has a record of such an impairment; or (3) he is regarded as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff does not contend that his obesity constitutes a disability or that it substantially limits one of his major life activities. Instead, plaintiff argues that he falls within the third category because the Big Ten regarded him as disabled as a result of his obesity.
To show that the Big Ten perceived him as disabled, plaintiff must demonstrate that the Big Ten believed he had an impairment that substantially limited one or more of his major life activities. See Stewart v. County of Brown, 86 F.3d 107, 111 (7th Cir.1996). The Department of Labor regulations interpreting the ADA (“Regulations”) define major life activities as “functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 29 C.F.R. § 1630.2(h)(2)(i). With respect to the major life activity of working, the Regulations state as follows:
The term substantially, 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.
29 C.F.R. § 1630.2(j)(3)(i). The regulations note that “except in rare circumstances, obesity is not considered a disabling impairment.” Id. § 1630 App.
5
6
Plaintiff argues that he meets the definition of disabled because the Big Ten regarded him as incapable of performing an entire class of jobs—football officials—as a result of his obesity. The job of a football official, however, does not represent a “class of jobs.” It is a single position. Plaintiff cannot demonstrate that he was regarded as disabled on the basis of a specific job of his choosing. See Byrne v. Board of Educ., School of West Allis–West Milwaukee, 979 F.2d 560, 564 (7th Cir.1992) (definition of “major life activity” cannot be interpreted to mean “working at the specific job of one's choice”). “It is well established that an inability to perform a particular job for a particular employer is not sufficient to establish a handicap; the impairment must substantially limit employment generally.” Id. at 565; see also Weiler v. Household Finance Corp., 101 F.3d 519, 525 (7th Cir.1996) (“[E]xclusion from one position of employment does not constitute a substantial limitation of a major life activity.”).
*6 Both parties agree that plaintiff's ability to work at his other jobs is not limited. Plaintiff has always held down a regular job, first as a Kimberly–Clark salesperson and now with the Cook County Sheriff's Office, during his tenure with the Big Ten. Both parties acknowledge that the Big Ten knew about plaintiff's regular employment, in addition to plaintiff's pursuit of an acting career. Although Parry may have believed that plaintiff's weight prevented him from being an effective football official, plaintiff has offered no support for the contention that he was perceived as being disabled from working generally. In considering whether an individual is substantially limited in the activity of working, the Regulations provide that an individual's “ability to perform in 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” should be examined. 29 C.F.R. § 1603.2(j)(3)(i). Plaintiff possesses skills and abilities in more than one profession. There is nothing in the Regulations to indicate that considering the entire panoply of plaintiff's skills and abilities is impermissible. The relevant “broad range of jobs in various classes” includes plaintiff's other positions. Plaintiff's other occupations, and Parry's knowledge of these occupations, negates any inference that Parry believed plaintiff's weight substantially limited him from working. Cf. Smaw v. Commonwealth of Virginia Dep't of State Police, 862 F.Supp. 1469, 1475 (E.D.Va.1994) (summary judgment granted to defendant because plaintiff's “present position as a dispatcher would seem to negate any argument that she is disqualified from her profession by her weight.”). Plaintiff officiated approximately eleven football games annually for the Big Ten and attended a clinic each August.3 At most, plaintiff has shown that Parry believed that plaintiff's weight hindered him in performing a single job for eleven days a year. This evidence does not demonstrate that plaintiff was perceived as substantially limited in the major life activity of working.
Plaintiff also asserts that Parry regards him as disabled from any job that requires a “modicum of athleticism.” Plaintiff has not brought forth any references to the record to support this inference and, here too, plaintiff's other skills doom this argument. Plaintiff's ability to perform other jobs requiring athletic ability are irrelevant to the analysis. The pertinent class of jobs for purposes of analyzing whether plaintiff was perceived as disabled are those jobs for which plaintiff is skilled. The Big Ten's motion for summary judgment will be granted as to plaintiff's ADA claim.
IT IS THEREFORE ORDERED that the motion of defendant The Big Ten Conference for summary judgment [16] is granted. The Clerk of the Court is directed to enter judgment in favor of defendant The Big Ten Conference and against plaintiff Lorenzo Clemons, dismissing this case with prejudice.
All Citations
Not Reported in F.Supp., 1997 WL 89227, 73 Fair Empl.Prac.Cas. (BNA) 466, 9 NDLR P 201
Footnotes
1
No numerical rankings were produced for 1989.
2
Section 1981 discrimination claims are analyzed in the same manner as claims brought pursuant to Title VII of Civil Rights Act. Bratton v. Roadway Package System, Inc., 77 F.3d 168, 175 (7th Cir.1996).
3
