IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

KAREN LYN STORY, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-562-A

§

AEGON USA, INC., ET AL., §

§

Defendants. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of defendants, Aegon

USA, Inc., and Transamerica Life Insurance Company, for summary

judgment. Based on the motion, the response of plaintiff, Karen

Lyn Story, the summary judgment record, and the applicable

authorities, the court has concluded that defendants' motion

should be granted. 

I.

Plaintiff's Petition

In plaintiff's active pleading, her second amended original

petition filed in state court, she states that her cause of

action against defendants is that they terminated her employment

because they "perceived that she was disabled due to a mental

illness," in violation of the Texas Commission on Human Rights

Act ("TCHRA"). Not. of Removal Ex. G at 3, ¶ 12.

 

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II.

Grounds for the Motion and the Response

 

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In their motion, defendants move for summary judgment on the

following three grounds: 

1. Plaintiff was not discharged because of

an actual or perceived disability. Plaintiff was

discharged after senior management learned that

Plaintiff had disclosed that she had a felony

conviction for theft and it would have violated the

Federal Violent Crime Control and Law Enforcement Act

of 1994 for an insurance company to continue to employ

her.

2. Since Plaintiff has not alleged that she

was disabled, but merely pled that she was "regarded

as" disabled, there was no duty to provide a reasonable

accommodation.

3. In the alternative, to the extent

Plaintiff contends her bipolar condition precludes the

company from addressing her performance and attendance

issues, Plaintiff is not a "qualified individual with a

disability" within the meaning of the TCHRA.

Mot. at 2. Thus, defendants assigned grounds in their motion

that are outside the scope of the sole pleaded complaint of

plaintiff that defendants terminated her employment because they

perceived her to be disabled.

In her response, plaintiff likewise goes beyond the scope of

her pleading by asserting that she in fact does have a disabling

mental impairment, and that she was terminated because of her

disability. Also, plaintiff asserts in her response that "no

attempt was made to determine what type of accommodation she

needed," Resp. at 10, even though she had failed to allege in her

petition any cause of action that she was denied accommodation

because of an actual or perceived disability. 

III.

Summary Judgment Principles

 

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A party is entitled to summary judgment on all or any part

of a claim as to which there is no genuine issue of material fact

and as to which the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The moving party has the initial

burden of showing that there is no genuine issue of material

fact. Anderson, 477 U.S. at 256. The movant may discharge this

burden by pointing out the absence of evidence to support one or

more essential elements of the non-moving party's claim "since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25

(1986). Once the moving party has carried its burden under Rule

56(c), the non-moving party must do more than merely 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 (1986). The party opposing the motion may not rest on

mere allegations or denials of pleading, but must set forth

specific facts showing a genuine issue for trial. Anderson, 477

U.S. at 248, 256. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

 

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proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984).

IV.

Undisputed Facts

The following is an overview of the evidence pertinent to

the motion for summary judgment that is undisputed in the summary

judgment record. 

From 1997 until her termination on December 16, 2002,

plaintiff was employed as a staff accountant by Aegon. In August

2002, plaintiff was diagnosed with bipolar disorder by her

psychologist, Dr. Jerome Mabli, Ph.D. At plaintiff's annual

performance review held on November 27, 2002, Aegon manager Karen

Turner informed plaintiff that her work performance was poor and

needed improvement. As the meeting was concluding, plaintiff

entered the following handwritten notation in a section of the

review designated for employee comments: "I do not agree [with

the review's evaluation of her performance]. I have been

diagnosed as bipolar and am taking medication to control my mood

swings." Defs.' App. at 61. Following the meeting, plaintiff

also informed Aegon supervisor Karla Moeller that she had been

diagnosed with bipolar disorder. 

On December 6, 2002, Aegon received a letter from

plaintiff's psychologist confirming his diagnosis of plaintiff's

bipolar disorder and counseling Aegon's "staff to avoid further

stress on or harassment of [plaintiff]." Pl.'s App. at 29. 

Aegon Executive Vice President Lynn Hartung ("Hartung")

 

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considered Malbi's letter an official request for an

accommodation under the American with Disabilities Act, 42 U.S.C.

§ 12102(2)(C), and forwarded it to the legal department for

consideration. 

Around the same time, Hartung learned that plaintiff's

personnel file indicated she had a felony conviction. This

information had been available in plaintiff's personnel file

throughout her employment but Hartung was not aware of the

conviction until December 2002. Plaintiff was terminated on

December 16, 2002.

V.

Analysis

The court declines the invitations extended by the parties

in the motion for summary judgment and response thereto to

analyze and resolve issues that are outside the scope of the

causes of action alleged in plaintiff's petition. Therefore, the

court is not devoting time to the issues of whether plaintiff had

an actual disability, whether plaintiff was discharged because of

an actual disability, whether defendants had a duty to provide

reasonable accommodation, whether defendants provided reasonable

accommodation or make an appropriate attempt to do so, and

whether plaintiff was a qualified individual with a disability

within the meaning of the TCHRA. Plaintiff's active pleading

does not raise any of those issues. As previously noted, the

only issue raised is whether defendants terminated plaintiff's

 

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employment because they perceived that she was disabled due to a

mental illness. 

The burdens of proof in disability discrimination cases

brought under the TCHRA are identical to those applicable to the

Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et

seq. Pegram v. Honeywell, 361 F.3d 272, 287 (5th Cir. 2004). As

applied to a "perceived disability" claim, a plaintiff must first

make a prima facie case of disability discrimination by

establishing that (1) she was perceived to be disabled by

defendants, (2) she was otherwise qualified for the position, (3)

her termination was motivated by her perceived disability, and

(4) she was either replaced by, or treated differently than, a

non-disabled employee. See McInnis v. Alamo Cmty. Coll. Dist.,

207 F.3d 276, 280-81 (5th Cir. 2000); see also Tex. Lab. Code §

21.125. If plaintiff carries that burden, defendants may offer a

legitimate non-discriminatory reason for terminating plaintiff;

and, if they do, the burden shifts back to plaintiff to offer

some evidence that the stated reason was merely pretext. Little

v. Tex. Dep’t of Crim. Justice, 177 S.W.3d 624, 633-35 (Tex.

App.--Houston [1st Dist.] 2005).

In Sutton v. United Air Lines, Inc., the Supreme Court

identified two ways in which an individual may come within the

"perceived to be" disabled definition: (1) the defendant

mistakenly believes that the individual has a physical impairment

that substantially limits one or more major life activities, or

(2) the defendant mistakenly believes that an actual, non-

 

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 According to the applicable regulations, one suffering a

"substantially limiting" disability will be:

(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 that same

major life activity.

29 C.F.R. § 1630.2(j)

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limiting impairment substantially limits one or more major life

activities. 527 U.S. 471, 489 (1999). In either situation, the

defendant must "entertain misperceptions about the individual--it

must believe either that one has a substantially limiting

impairment that one does not have or that one has substantially

limiting impairment when, in fact, the impairment is not so

limiting." Id.

An employer's knowledge that an employee has a physical or

mental impairment, without more, is not sufficient to establish

that the employer regarded the employee as disabled. Foreman v.

Babcock & Wilcox, 117 F.3d 800, 806 (5th Cir. 1997). For there

to be a perception of disability by an employer, the employer

must believe that the perceived impairment substantially limits

one or more major life activities. See Murphy v. United Parcel

Serv., 527 U.S. 516, 521-22 (1999).1

The court interprets the first ground of defendants' motion

to present basically three issues: First, that the summary

judgment record will not support a finding that defendants

perceived plaintiff to be disabled; second, that the record will

 

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not support a finding that plaintiff's discharge was motivated by

a perception by defendants that she was disabled; and, third,

even if one were to assume that the record raises a prima facie

case of disability discrimination, plaintiff cannot prevail

because defendants have offered a legitimate non-discriminatory

reason for terminating plaintiff, and the record will not support

a finding that the stated reason is merely pretext.

To find a persuasive argument in defendants' first ground,

the court need look no further than the first issue listed above. 

In her active pleading, plaintiff contends defendants terminated

her employment because they perceived her bipolar disorder to be

a debilitating mental illness. Thus, her claims falls under the

second category of cases discussed in Sutton; and, plaintiff has

the burden to show that defendants believed she was substantially

limited in one or more major life activities by her bipolar

disorder. 527 U.S. 471, 489 (1999). However, there is no

evidence in the summary judgment record that defendants ever

perceived that plaintiff's bipolar disorder prevented her from

performing her duties as a staff accountant. Forman, 117 F.3d at

806; Ellison v. Software Spectrum, Inc., 85 F.3d 187, 192 (5th

Cir. 1996). The record contains no evidence from which a

reasonable trier of fact could find that defendants ever

perceived plaintiff's bipolar disorder as substantially limiting.

Because this conclusion, alone, is dispositive, the court

need not consider any of the other issues raised in defendants

motion. 

 

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VI.

O R D E R

For the reasons stated herein,

The court ORDERS that defendants' motion for summary

judgement be, and is hereby, granted and that plaintiff's claims

against defendants be, and are hereby, dismissed.

SIGNED March 20, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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