Moreno v. Pepsi-Cola Metro

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-50186 _______________

JOHNNY MORENO,

Plaintiff-Appellee,

VERSUS

PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC.,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Western District of Texas _________________________ March 28, 2002

Before REAVLEY, SMITH, and DENNIS, itan Bottling Company, Inc. (“Pepsi”), in this Circuit Judges, title VII and Americans with Disabilities Act (“ADA”) case. We affirm. JERRY E. SMITH, Circuit Judge:* I. Johnny Moreno appeals a summary judg- Moreno, who is hispanic, had worked for ment entered in favor of Pepsi-Cola Metropol- Pepsi since June 1986 as a field service me- chanic in the marketing equipment manage- ment department. His duties involved install- * ing and servicing cold beverage equipment in Pursuant to 5TH CIR. R. 47.5, the court has the Kileen-Waco-Bryan area of Texas. By determined that this opinion should not be pub- lished and is not precedent except under the limited 1992, Moreno had attained the position of circumstances set forth in 5TH CIR. R. 47.5.4. master mechanic and was working under the

direct supervision of Billy Swindell, the mar- allegations of misconduct. He admits to the keting equipment manager. violation of the call-swapping procedure but notes that the man he swapped with (a white In June 1997, Moreno inured his right knee co-worker) was only reprimanded. As for the while installing a piece of equipment. He re- failure to follow proper absence procedures, turned to work after this incident but operated Moreno contends he was never in violation of under a restriction to lift no more than thirty the policy, because Pepsi never provided him pounds. In September, he had arthroscopic a copy of any written policy, and when asked knee surgery and subsequently returned to to do so in discovery, produced a handbook work under the same weight restriction. For a from a different office. Moreno disputes the few weeks following the operation, he per- sleeping on the job allegation, claiming the dis- formed administrative duties, then received ciplinary action report on the incident does not full-duty clearance and returned to regular even mention he was asleep. Finally, he does work without restriction. In May 1998, he not deny smoking in the company warehouse sprained his ankle while stepping out of a com- but notes there is a white employee who does, pany vehicle; this injury did not limit his ability and notes the presence of ashtrays in the to perform his job. building. Notably, he does not respond to the allegations he was reprimanded and suspended In May 1998, Pepsi terminated Moreno, for poor job performance while dealing di- citing his insubordination for refusing to install rectly with customers. an ice machine. The parties dispute Moreno’s disciplinary track record before this incident. The final incident precipitating Moreno’s Pepsi points to six acts of misconduct that, termination involved Swindell’s request that coupled with the insubordination, justified the Moreno install an ice machine for a customer. discharge: A customer complaint relating to Again, the parties dispute the facts. Moreno Moreno’s failure to maintain the customer’s avers he was asked to install a 700-pound ma- equipment, the swapping of on-call duty, fail- chine himself, but Pepsi claims Moreno was in- ure to follow the company call-in procedure formed that there were a technician and a for planned absence, a reprimand for sleeping truck available to help with the installation. during company time, a charge of smoking in the warehouse, and a three-day suspension for When Swindell discovered the machine was poor performance in the installation of a dis- not installed, he called Moreno, who informed penser.1 him he had swapped call with another employ- ee. Pepsi notes this was unauthorized and was Moreno responds to only some of these not logged in at the dispatch office. The par- ties do agree that after Moreno informed Swindell of his swapped call status, he turned 1 Pepsi also notes an anonymous caller who off his pager and phone, leaving Swindell with claimed Moreno was working his own ice machine no way to contact him, and thus no way to co- installation and repair business on company time. ordinate the installation on time. Moreno correctly responds that this accusation is hearsay and is not competent summary judgment evidence. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995).

II. IV. Moreno filed a charge of discrimination The ADA bars discrimination in employ- with the Equal Employment Opportunity ment against those with a disability who are Commission (“EEOC”) in November 1998 and otherwise qualified for a job. 42 U.S.C. amended it in January 1999. He claims to § 12112(a). To establish a prima facie case, a have amended the charge once again, in May plaintiff must (1) have a disability, (2) be 1999, via a letter sent to the Texas Commis- otherwise qualified, and (3) be subject to ad- sion on Human Rights. This letter is not in the verse employment action because of the dis- EEOC file. The sole basis of his claim of dis- ability. Ivy v. Jones, 192 F.3d 514, 515 (5th crimination in these documents was disability. Cir. 1999).

“Disability” as used in the ADA means “(A) The EEOC issued a right to sue letter in a physical or mental impairment that substan- July 1999. Moreno claims to have sent a new tially limits one or more of the major life charge to the EEOC in September 1999 alleg- activities of such individual; (B) a record of ing he was terminated also because of national such an impairment; or (C) being regarded as origin. Moreno sued in September 1999. having such an impairment.” 42 U.S.C. § 12102(2). An “impairment” includes almost III. all disorders or conditions affecting one of the Moreno offers two legal theories to support body systems. 29 C.F.R. § 1630.2(h)(1).2 A his argument that Pepsi discharged him un- “major life activity” is usually defined by re- lawfully: a title VII claim based on national ference to the EEOC guidelines implementing origin discrimination and an ADA claim based the ADA. These include “caring for oneself, on limitations stemming from his knee injury. performing manual tasks, walking, seeing, The district court dismissed both claims on hearing, speaking, breathing, learning, and summary judgment. Accordingly, we review working;” also “sitting, standing, lifting, [and] that judgment de novo. Walton v. Alexander, reaching.” 29 C.F.R. 1630.2(i); App. 44 F.3d 1297, 1301 (5th Cir. 1995) (en banc). § 1630.2(i).

Summary judgment is proper where “there 2 is no genuine issue as to any material fact and More specifically, an impairment is the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). All in- Any physiological disorder, or ferences from the record must be construed in condition, cosmetic disfigurement, the light most favorable to the non-movant. or anatomical loss affecting one Matsushita Elec. Indus. Co. v. Zenith Radio or more of the following body systems: neurological, musculo- Corp., 475 U.S. 574, 587-88 (1986); Walker skeletal, special sense organs, re- v. Thompson, 214 F.3d 615, 624 (5th Cir. spiratory (including speech 2000). For a plaintiff to survive summary organs), cardiovascular, judgment, there must be evidence in the record reproductive, digestive, sufficient to sustain a finding in favor of the genito-urinary, hemic and lym- non-movant. Little v. Liquid Air Corp., 37 phatic, skin, and endocrine. F.3d 109, 1075 (5th Cir. 1994) (en banc). 29 C.F.R. 1630.2(h)(1).

To be “substantially limited,” a plaintiff plaintiff is disabled for purposes of the ADA is must show an inability to perform one of the a case-specific determination. Toyota Motor listed life activities up to the standards of an Mfg., Inc. v. Williams, 122 S. Ct. 681 (2002). average person.3 The question whether a

3 In his brief, liberally construed, Moreno The regulation reads, in its entirety: claims he is either disabled or regarded as such in that he is substantially limited in the major The term substantially limits life activities of lifting, walking, climbing, and means: working. We address these in turn. (i) Unable to perform a major life activity that the average person in A. the general population can Moreno avers he is not able to lift in the perform; or manner of an average person and thus is disabled under the definitions laid out above. (ii) Significantly restricted as to Moreno’s statements as to specific limitations the condition, manner or duration on his ability to lift are scant. The only under which an individual can concrete examples he has offered involve his perform a particular major life ac- ability to lift at least thirty pounds and his tivity as compared to the inability to lift 700 pounds (the weight of the condition, manner, or duration ice machine Swindell allegedly required him to under which the average person in install solo). The ADA does not posit Atlas as the general population can the average person; Moreno’s inability to lift perform that same major life more than a quarter ton has no relevance to activity. the disability question. Even assuming More- (2) The following factors should no could lift no more than thirty pounds, this be considered in determining limitation would not constitute a disability whether an individual is substantially limited in a major life activity: 3 (...continued) (i) The nature and severity of the (i) The term substantially limits impairment; means significantly restricted in the ability to perform either a (ii) The duration or expected class of jobs or a broad range of duration of the impairment; and jobs in various classes as compared to the average person (iii) The permanent or long term having comparable training, skills impact, or the expected permanent and abilities. The inability to or long term impact of or perform a single, particular job resulting from the impairment. does not constitute a substantial limitation in the major life activity (3) With respect to the major life of working. activity of workingSS (continued...) 29 C.F.R. § 1630.2(j)(1),(2).

within the meaning of the ADA.4 Moreno is D. not disabled because of his limitations in the Finally, we turn to the major life activity of major life activity of lifting. working, but only after rejecting all other pos- sible major life activities. App. 29 C.F.R. B. § 1630.2(j); Dutcher v. Ingalls Shipbuilding, Moreno’s argument regarding the major life 53 F.3d 723, 726 n.10 (5th Cir. 1995). To be activity of walking amounts to his testimony substantially limited in the major life activity of that his needs to be more careful and cautious working, a plaintiff must be precluded from a when walking and cannot walk as far as the “class of jobs” or “a broad range of jobs.” 29 average person his age. Minor deviations from C.F.R. § 1630.2(j)(3)(i); Sutton, 527 U.S. 471, the average person’s ability to walk do not rise 491 (1999). to the level of substantial limitations on one’s ability to partake of this major life activity. Moreno has not offered any evidence he is Talk v. Delta Airlines, Inc., 165 F.3d 1021, unable to perform either a class or a broad 1025 (5th Cir. 1999) (“It is clear, however, range of jobs. Indeed, the summary judgment that moderate difficulty experienced while evidence reveals he is currently employed as a walking does not rise to the level of a deliveryman for an auto parts wholesaler and disability.”). Moreno is not disabled because also operates his own ice machine vending of his limitations in the major life activity of business. Moreno is not disabled because of walking. his limitations in the major life activity of working. C. Moreno also argues his knee injury renders V. him disabled in that he is unable to engage in Moreno argues that Pepsi “regarded” him the major life activity of climbing to the same as disabled. To be regarded as disabled for degree as is an average person. Moreno does purposes of the ADA, the employer must be- not offer any more definite explanation of how lieve the employee either he is limited in climbing. If he means merely climbing that is attendant to walking, his ar- (1) Has a physical or mental impairment gument is foreclosed by Talk. If he means that does not substantially limit major climbing in a more vigorous sense, that life activities but is treated by a covered argument has also been rejected by this circuit. entity as constituting such limitation; Rogers v. Int’l Marine Terminals, Inc., 87 (2) Has a physical or mental impairment F.3d 755, 758 n.2 (5th Cir. 1996) (concluding that substantially limits major life that climbing is not a major life activity). Mo- activities only as a result of the attitudes reno is not disabled because of his limitations of others toward such impairment; [or] in the activity of climbing. (3) Has none of the impairments defined in paragraphs (h) (1) or (2) of this section but is treated by a covered entity as having a substantially limiting 4 Ray v. Glidden Co., 85 F.3d 227, 229 (5th impairment. Cir. 1996) (ho lding that inability regularly to lift more than ten pounds did not substantially 29 C.F.R. § 1630.2(l). Thus, for the employee limit the major life activity of lifting).

to be “regarded as” disabled, the employer few weeks after his knee surgery. That Swin- must have a perception of the employee’s dis- dell asked Moreno to help him install the ice ability, that, if true, would constitute a machine cuts strongly against any implication disability. Murphy v. United Parcel Serv., 527 that Pepsi “regarded” Moreno as disabled. U.S. 516, 521-22 (1999); Dupre v. Charter Moreno is not disabled within the meaning of Behavioral Health Sys., Inc., 242 F.3d 610, the ADA, because his employer did not regard 616 (5th Cir. 2001). him as having any impairment that rises to the level of a disability under the ADA. Moreno raises this “regarded as” argument for the first time on appeal. We routinely treat VI. as waived those arguments advanced for the Moreno challenges his discharge on the first time on appeal. Lackey v. Johnson, 116 ground of national origin discrimination.6 In F.3d 149, 152 (5th Cir. 1997); Hernandez v. an EEOC “deferral state,” a charge of Hill Country Tel. Coop. Inc., 849 F.2d 139, discrimination must be filed with the EEOC 142 (5th Cir. 1988). Although we forego this not more than 300 days after the alleged waiver in extraordinary cases, Moreno does adverse employment action.7 42 U.S.C. § not present such a case. N. Alamo Water 2000e-5(e)(1); Byers v. Dallas Morning News, Supply Corp. v. City of San Juan, Tex., 90 Inc., 209 F.3d 419, 424 (5th Cir. 2000). F.3d 910, 916 (5th Cir.1996). Moreno was terminated by Pepsi on May 28, 1998; he filed a charge of discrimination on Even were we to consider Moreno’s newly- September 7, 1999, 467 days after the raised argument, we would be compelled to discharge. reject it. His “regarded as” argument stems almost entirely from his subjective belief that Moreno’s national origin claim is thus Pepsi thought he had an ADA disability. He barred unless he can show his initial charge of supports this supposition by noting that Pepsi disability discrimination, filed on November participated in a disability proceeding before 23, 1998, triggered his national origin claim. the Texas Worker’s Compensation Moreno notes that he completed the blank Commission. Acknowledging that Moreno next to race with the appropriate designation may have been impaired for purposes of (“Hispanic”) on this November 23 charge. His worker’s compensation does not mean he initial charge and his subsequent amendment necessarily was disabled for purposes of the on January 11, 1999, make no mention of na- ADA.5 tional origin discrimination, however.

The summary judgment evidence shows Moreno relies entirely on Sanchez v. that Pepsi allowed Moreno to work at a desk Standard Brands, Inc., 431 F.2d 455, 464 (5th job and then returned him to full duty status a Cir. 1970), which held that failure to mark the appropriate box on the EEOC charge form

5 Cf. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) (holding that disability for 6 42 U.S.C. § 2000e-2(a)(1). purposes of Social Security benefits is not 7 necessarily the same as disability for purposes of Texas is a deferral state. See Huckaby v. the ADA). Moore, 142 F.3d 233, 238 (5th Cir. 1998).

does not preclude a suit premised on that LAB. CODE ANN. § 213.007 (Vernon 2001).8 theory of discrimination. Sanchez further held Moreno’s argument is without merit. that a plaintiff’s out-of-time amendment to an initial charge could add an additional theory of AFFIRMED. discrimination if the amendment contained “mere clarification and amplification of the original charge.” Id. at 465. Where the out- of-time amendment alleges a new theory of discrimination and adds new facts to support that charge, the new theory of discrimination is time-barred. Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985). In other words, the new theory of discrimination must rely on the facts alleged in the initial charge. Id.

Moreno’s claim of national origin discrimination fails, because it is more analogous to Hornsby than to Sanchez. His amended EEOC charge of national origin discrimination alleges facts that have no predicate in his initial charge. The factual narrative in the initial charge describes his termination as stemming only from a disability or a perceived disability.

VII. Moreno contends that the findings of the Texas Workforce Commission awarding him 8 benefits should have res judicata effect in this The statute reads, federal lawsuit. This issue was not presented to the district court and is thereby waived. A finding of fact, conclusion of Hernandez, 849 F.2d at 142. law, judgment, or final order made under this subtitle is not Were we to consider this argument, it binding and may not be used as would be foreclosed by precedent. We give a evidence in an action or proceeding, other than an action state agency the same deference it would or proceeding brought under this receive in state court. Univ. of Tenn. v. Elli- subtitle, even if the action or ott, 478 U.S. 788, 799 (1986). The Texas proceeding is between the same or Workforce Commission’s decision is entitled related parties or involves the to no deference in Texas state courts. TEX. same facts.

TEX. LAB. CODE ANN. § 213.007 (Vernon 2001).