MARCUS L. SMITH VS THURMAN OIL, INC.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0743 MARCUS L SMITH VS THURMAN OILS INC JUDGMENT RENDERED DECEMBER 28 2006 ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT DOCKET NUMBER 81 675 DIVISION C PARISH OF WASHINGTON STATE OF LOUISIANA HONORABLE A CLAYTON JAMES JUDGE PRO TEMPORE EUZABETHSMYTHS BRADLEY J GO COUNSEL FORPLAINTWF APPELLANT LUMINAIS JR MARCUS L SMITH METAIRIE LA LELAND R GALLASPY COUNSEL FOR DEFENDANT APPELLEE COVINGTON LA THURMAN OILS INC JOHN N GALLASPY BOGALUSA LA CAR ER C J WHIPPLE AND MCDONALD JJ 11 Cb11 MCDONALD J In a was hired by Thurman Oils 25 mile muscular arm drive commercial to radius In and neck muscles company Smith was degenerative a fuel as job to customers within diagnosed with myotonic condition that can affect the Mr Smith informed his boss Joe Hernandez of the Mr Hernandez researched the condition and learned that it could diagnosis affect the Mr 1999 which is dystrophy trqcks delivering Inc His full time commercial truck driver and miscellaneous laborer required him a Marcus L Smith May of 1998 ability s to grip and release insurance agent objects Richard Mr Hernandez contacted his Garrity and explained the situation Mr Garrity informed Mr Hernandez that Mr Smith would not be insurable as a truck driver for Thurman Oils under the circumstances then terminated Mr Smith Mr Smith filed suit s Mr Hernandez employment in January of2000 against Thurman Oils alleging that the company wrongfully terminated him from his job in violation of the Louisiana LEDL Employment Discrimination Law at the time of his firing he functions of his La R S 23 301 et seq capable of performing all the essential was employment with or without reasonable accommodation Alteluatively Mr Smith asserted that Thurman Oils failed with reasonable accommodation asked for compensatory appropriate front Thurman damages to his ability disabled required that to having perform an a to perform his employment back pay benefits attorney fees and the answered Thereafter Thurnlan Oils filed that the LEDL to pay and reasonable Oils petition that job denying and Smith or the allegations judgment asserting was to prove substantially limited 2 Mr him costs motion for summary the duties of the provide reinstatement Mr Smith prove the termination impairment and that unrelated that he one or more was life Thurman Oils asserted that Mr Smith activities that the termination was not and that he unable job as defined was due to his inability was to to prove at trial perform the duties of his trial that he to prove at unable was a disabled person by the LEDL After a the trial court hearing the motion for summary granted judgment and dismissed the suit with prejudice Mr Smith is appealing that judgment and makes the following assignments of error 1 The trial that he had holding Smith had not demonstrated disability within the meaning of the ADA court a erred in Americans With Disabilities Act and the LEDL granting Thurman Oils Motion for Summary Judgment when Smith presented a prima facie case of prohibited employment discrimination as a qualified individual with a disability who was terminated because of his disability 2 The trial erred in court courts review summary Appellate criteria that govern the trial court Board of v State University 591 So 2d 342 345 shall be rendered interrogatories any forthwith if the and admissions show that there is mover is entitled no on La as a under the Supervisors 1991 pleadings file The matter as to of law a same summary of Louisiana judgment sought depositions together with supporting genuine issue to judgment novo consideration of whether s Schroeder judgment is appropriate de judgments answers to affidavits if material fact and that the La C C P art 966 B ASSIGNMENT OF ERROR NO 1 Mr Smith asserts that the trial demonstrated that he had a court erred in holding as not disability within the meaning of the ADA and the LEDL because he established that Thurman Oils his condition that he had substantially limiting his ability jobs 3 to erroneously regarded work in a broad class of Louisiana Revised Statutes 23 322 3 any person who has limits one or more impairment activities are physical of the by La such having as as impairment which substantially major life activities regarded defined mental or disabled person a R S 23 322 7 an as or has a record of such impairment Major functions such as an life caring for performing manual tasks walking seeing hearing speaking self one s is or a defines breathing learning and working These Louisiana Act 42 USC S 12101 discrimination laws the our federal interpreting Cruises Inc statutes similar are In et seq courts not to Louisiana interpreting Thomas jurisprudence App writ denied 2004 1904 La 10 29 04 unable the Americans with Disabilities 1 Cir 6 25 04 885 2d So employment statutes Louisiana and Casino 886 So 2d 468 470 598 regarded him as being broad class of jobs the testimony of Mr Hernandez does a support that argument Mr Hernandez testified Q v Mr Smith asserts that Mr Hernandez work in s have relied upon similar federal 2003 1937 p 3 La Although to You also said you had no complaints as follows about his quality of work correct complaints about his quality of work Q How would you describe Marcus as an employee A He was a fair employee A Q I have no Well at the time that Marcus information drive a to form a basis to terminated do you have any believe that he could not physically was tnlck A No In fact Q up until he observation and from a knowledge terminated you had you had no reason physical standpoint couldn t do his job A That is from your own to believe that Marcus correct correct Q You didn no was the time you terminated Marcus you had infornlation to believe that he had symptoms of dystrophy truck t at that would have prevented correct A That is true 4 him from no reason myotonic physically driving a And you Q certainly have have done the other basis A two no information to believe that he couldn thirds work that he did t alternative on an the physical work around the plant correct That is true Further Mr Hernandez testified As practical a matter though I would have assumed at that time if nothing else strictly from a practical standpoint that if this man has myotonic dystrophy and myotonic dystrophy does affect the nerves muscles et cetera that it is alleged that it does he didn t need to be driving a truck from that moment on Clearly Mr Smith as the unable In Haase v 783 So 2d 474 670 the testimony of Mr Hernandez shows that he did to not work in a broad class of jobs Bayou Steel Corp 2000 1830 La App 5 Cir writ not La considered 2001 1604 14 9 01 14 3 employer violated the Louisiana Civil Rights RS La 46 2551 the predecessor conceded that his condition did not thus the issue that limited a was whether his Act for to substantially that his the LEDL employer regarded him major life activity The trial in favor of the employer and the appellate court court precluded him from the particular job as affirmed Mr major a granted Bayou Steel admittedly considered that Persons Handicapped limit life having a disability summary judgment stating Haase s CVD of electrical technician nothing in the exhibits that indicates Bayou Steel regarded Haase as handicapped in the sense of believing his impairment would substantially limit one or more of life s Rather the evidence offered in support of the motion for summary judgment established that Bayou Steel only considered that the CVD rendered Haase unable to safely perform the particular duties of the electrical maintenance for which he particular position applied in We conclude that the trial court correctly found that plaintiff failed to get past the threshold requirement of proving that he was handicapped as defined in the LCRHP Therefore it is unnecessary to analyze the remainder of the statutory provisions The LCRHP does not apply to plaintiff in this case Id 2000 1830 at p 8 783 So 2d at 477 478 5 Haase activity However there is activities 01 796 So 2d plaintiff suffered from color vision deficiency and claimed LCRHP regard As in the Haase was disabled was error Rather Mr Smith dangerous for has no case because Mr Hernandez broad class of jobs it in this case Mr Smith failed to show that he regarded him as unable to perform a only showed that Mr Hernandez felt Mr Smith to drive a fuel truck This assignment of merit ASSIGNMENT OF ERROR NO 2 In this 111 assignment of error granting Thurman Oils presented a prima facie motion for summary of case qualified individual with a Mr Smith asserts that the trial court erred judgment because he prohibited employment disability who was discrimination as a terminated because of his disability However Mr Smith s own testimony established that he was disabled within the meaning of the LEDL He testified in deposition Q And you felt like in January 2000 you could still perform the essential functions of your job at Thurman Oils is that correct A Yes sir Q Myotonic dystrophy A No was not a problem at that time Still ain t Q It did not A No sir impair your ability to safely drive the trucks Q That s correct A That s Q It did not right impair your ability to walk is that A It didn t hurt me at all Q Did it impair your ability to A correct see No sir Q Did it impair your ability to talk your ability to A No sir Q Did it impair A hear No sir Q Did it impair your ability to breathe A No sir Q As far as you were concerned at perfectly capable of performing the job A that point you were Yes sir And your condition was not causing you any restrictions in your normal daily activities is that correct Q A No sir 6 not Q That s correct A Yeah Q Now today A was that still is that still the state of your condition Yes sir Q As we sit here today the myotonic dystrophy does impair your daily activities A not No sir Clearly Mr Smith s testimony established that he within the meaning of the LEDL Therefore this not was disabled assignment of error has no merit THE SOCIAL SECURITY DISABILITY ISSUE While Mr Smith Social Security disability application which he failed to reconcile with his presented forms claim for Social hands had and no light or deposition testimony b ackaches grip n umb objects the doctor on termination because of work but I can not of my low LQ I am work I haven found button t sore n ess n ess in los s of hand Mr i n most subsequent Smith filed a and lungs I can s and pants In I was began receiving Social Security disability benefits to his a supplemental am no longer able to It is harder for knes Based upon his 7 prior problems and because other jobs we a to lift I would like to He stated leg lity He stated that two months do yet medical examination Mr Smith inab i and hands March 9 2000 Mr Smith stated anything les mus c 1999 grip of the bath tub because of hand and shirt of a rms November 30 handicapped on to picture Approximately that his stating do hard work because of my back application filed out benefits Security disability heavy and different a his myotonic dystrophy prevented him from working because he hand went to not disabled was months after his termination from Thurman Oils two he showed that he testimony s s me to get in it is very hard applications and his found totally disabled and In Cleveland 806 119 S Ct Policy Management Systems Corp v 1597 1603 143 L Ed 2d 966 526 U S 795 1999 the proving that she is Supreme Court stated that An ADA plaintiff bears the burden of qualified with or essential individual with a disability that is without reasonable accommodation functions assertion in a person a who perform the plaintiffs sworn And a job application for disability benefits that she is for an of her can unable to work will appear to negate element of her ADA case at least if she does example essential not offer a an explanation For that reason we hold that an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim Rather she must proffer a sufficient explanation Citation omitted sufficient In Holtzclaw Cir 2001 following the DSC Communications v court Cleveland affirmed the Corp 255 granting of a 5th F 3d 254 259 summary judgment stating Cleveland teaches that during litigation without inconsistent assertions plaintiff a a cannot sufficient change his story explanation Holtzclaw has offered no for his sufficient explanation for the contradiction between his disability applications and his claim that when he re applied for the job he could have worked even without reasonable accommodation He therefore has failed to create whether he is cannot In Reed 2000 the plaintiff in disability was v court appropriate Petroleum material issue of fact of position he sought Because he of his prima facie claim summary for the qualified establish that element judgment a on the ADA claim Helicopters affirmed the Inc granting of a 218 F 3d 477 480 summary claim that were Cir judgment against ADA claim who made assertions in her Social an 5th Security fundamentally inconsistent with her ability to perform her job In McClaren 457 466 5th v Morrison Cir 2005 Management Specialists the court affirmed the judgment in favor of the defendant in where the plaintiff failed to an Inc granting of a 420 F 3d summary age discrimination ADA case adequately explain inconsistencies between 8 allegations in his suit and holding that he could statements in his Social not simply disavow his Security disability statements to claim the Social Security Administration In Giles v General Electric Co the court found that statements in Social a inconsistent with plaintiff s ADA claim The court found that the statements 5th Cir 245 F 3d 474 485 Security benefits 2001 claim that were required explanation by the plaintiff properly provided the basis for summary judgment if they undermined the factual assertions necessary to plaintiff s ADA claim In the case Administration was sub judice Mr Smith s completely undermine his statements at capable of performing his job and that his condition his failure to reconcile the different the Social statements to statements provides deposition was an Security that he inactive and additional basis for the granting of the motion for summary judgment Therefore after Costs of this appeal a are de novo assessed review the trial court against Mr Smith AFFIRMED 9 judgment is affirmed
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