Mendiola v. Vision Hospitality, LLC et al

Filing 53

MEMORANDUM OPINION AND ORDER, 1) Denying Plaintiff's Motion to Strike; 2) Denying Defendants' Motion to Strike; 3) Denying 40 Second MOTION for Summary Judgment filed by Vision Hospitality, LLC, J. T. Hotels, LLC, I.T. Montgomery, LLC; and denying as moot 23 MOTION for Summary Judgment filed by Vision Hospitality, LLC, I.T. Montgomery, LLC. Signed by Hon. Chief Judge Mark E. Fuller on 12/8/08. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A R IO MENDIOLA, P la in tif f , v. V IS IO N HOSPITALITY, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-CV-469-MEF (WO­Publish)

MEMORANDUM OPINION AND ORDER I . INTRODUCTION P la in tif f Mario Mendiola is an adult who has been diagnosed with leukemia. He filed th is claim against I.T. Montgomery, the owner of a hotel Mendiola once managed, J.T. H o te ls , a successor in interest to I.T. Montgomery, and Vision Hospitality, a member of the s a m e family of companies. John Tampa, who is the managing member of these companies, w a s also named as a defendant. Mendiola claims Tampa fired him because he was diagnosed w ith leukemia, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("A D A "). This Case is presently before the Court on Defendants' Motion for Summary Ju d g m en t (Doc. # 23) and Defendants' Renewed Motion for Summary Judgment (Doc. # 40). T h e Court has carefully considered the undisputed evidence and the applicable law and has d e te rm in e d that the Renewed Motion for Summary Judgment is due to be DENIED for the rea so n s set forth in this Memorandum Opinion and Order. The original Motion for Summary Ju d g m en t is due to be DENIED as moot. The Court has construed a portion of each party's

brief as a Motion to Strike. Both of these Motions are also due to be DENIED. II. JURISDICTION AND VENUE This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiff's claims a re pursuant to 42 U.S.C. § 12101 et seq. The parties do not contest venue and personal ju ris d ic tio n , and the Court finds a sufficient basis for each. III. STANDARD OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). The party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the nonmoving party has failed

to present evidence in support of some element of its case on which it bears the ultimate b u rde n of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) " re q u ire s the nonmoving party to go beyond the pleadings and by her own affidavits, or by th e `depositions, answers to interrogatories, and admissions on file,' designate `specific facts s h o w in g that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1 9 8 6 ). On the other hand, a court ruling on a motion for summary judgment must believe th e evidence of the nonmovant and must draw all justifiable inferences from the evidence in th e nonmoving party's favor. Anderson, 477 U.S. at 255. After the nonmoving party has re sp o n d e d to the motion for summary judgment, the Court must grant summary judgment if th e r e is no genuine issue of material fact and the moving party is entitled to judgment as a m atter of law. Fed. R. Civ. P. 56(c). I V . FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the Motion. The submissions of the parties, viewed in the lig h t most favorable to the nonmoving party, establish the following relevant facts: J o h n Tampa ("Tampa") owns and operates several hotels in Alabama and elsewhere, a ll through corporations and limited liability companies. Though Tampa was initially named a s a defendant, all claims against him were dismissed by stipulation of the parties. (Doc. #

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1 4 .) Tampa is the managing member of Defendant J.T. Hotels, LLC ("J.T. Hotels") which o p e ra tes the Quality Inn & Suites Governor's House in Montgomery, Alabama. J.T. Hotels is a successor in interest to Defendant I.T. Montgomery, LLC ("I.T. Montgomery") and e x is ts as a result of a settlement agreement under which Tampa was to transfer all assets of I.T . Montgomery to J.T. Hotels. J.T. Hotels was added as a Rule 19 defendant subsequent to the filing of this litigation. The relationship between Defendant Vision Hospitality, LLC (" V is io n Hospitality") and the other defendants is not clear. Tampa met Plaintiff Mario Mendiola ("Mendiola") in San Antonio in April, 2005 and o f f e re d him a position as general manager of the Quality Inn & Suites in Montgomery. M e n d io la memorialized the terms of the offer in a letter to Tampa on April 27, 2005 and re lo c a te d to Montgomery the next month. His girlfriend, Roxanne Luker ("Luker"), moved w ith him, and they lived together in a suite on the premises of the Quality Inn & Suites. M e n d io la was an employee of I.T. Montgomery while he worked as the general manager of th e hotel. Mendiola was tentatively diagnosed with leukemia in early December, 2005. He was u n d e r the treatment of a physician for diabetes at the time of the diagnosis, and an irregular b loo d count indicated he may have the disease. Additional testing was necessary to confirm th e diagnosis, and a bone marrow biopsy was needed to determine how advanced the le u k e m ia was. Mendiola visited a specialist for the additional testing on December 7, 2005 a n d called Tampa the same day to tell him of the tentative diagnosis. What happened during

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th is phone call is a matter of dispute. In his deposition, Mendiola stated: I informed John Tampa of my tentative diagnosis and told him about the n e c es s ity of additional tests. I further stated that if I was in a late stage of the d isease , I would possibly want to return to Texas for treatment. I was very c le a r that no action would be taken prior to the additional tests.

(Mendiola Dep. Doc. # 41-5 Ex. 7 64-65.) Mendiola further claims that Tampa offered e n c o u r a g in g words and a two-thousand dollar advance to help cover medical expenses. This, a c c o rd in g to Mendiola, was the last positive conversation he had with Tampa. Tampa remembers the conversation differently. c h a r a c te r iz e d the substance of their conversation as follows: M r. Mendiola came to me--actually, he called me and said he got a--I don't k n o w all the word--issue is good. But he told me, hey, I have problem or is s u e with health. I think I've got to go back to Texas. . . . He told me, I've got to go back to Texas. I cannot manage the property no more. And my u n d e rsta n d in g was, I'm going to leave in condition from the company due to m y health issue. (Tampa Dep. Doc. # 41-2 Ex. 4 43.)1 Tampa understood Mendiola to be tendering his In his deposition, Tampa

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Tampa also testified that

when [Mendiola] first--we made the first conversation and he told me his plans to leave for Texas to be with his family, I said, no problem, you can hang around over here for a few weeks, see what's going on with you, because he did not know what his sickness is. He did not know. He told me he got a problem with sugar and he needs to do more tests, and Montgomery did not have the proper, either doctors or something. He was trying to find somebody to do the tests. I don't know exactly, you know. (T a m p a Dep. Doc. # 41-2 Ex. 4 65) 5

re s ig n a tio n during this phone call. On December 12, 2005, five days after the phone conversation, Tampa sent a fax to M e n d io la informing him that Tampa had hired Mendiola's replacement who would start on D e c em b e r 20, 2005. Mendiola called Tampa numerous times after he received this fax, but T a m p a neither answered nor returned the calls. As a result, Mendiola faxed a letter to Tampa o n December 14, 2005. He made clear in the letter that he had not resigned, but Tampa c la im s he never received the letter. Mendiola subsequently approached Tampa in the parking lo t of the hotel. He describes the encounter this way: I said: Why haven't you answered my phone calls? I sent you a memo re g a rd in g the memo you sent me that I'm being replaced. He said: Well, you told me you were leaving. I said: I never told you I was leaving. He had every o p p o rtu n ity at that time to say it was miscommunicated, I'm sorry, make it rig h t, but he didn't. And I said: John, you know, I think you're in violation of th e Americans with Disabilities Act. And he raised his hand, walked away, got in his car, and drove away.

(Mendiola Dep. Doc. # 41-5 Ex. 7 78.) For his part, Tampa admits he spoke with Mendiola at some point during the week of December 12, 2007, but claims that Mendiola did not try to explain that he did not resign. In fact, Tampa claims Mendiola was fine with leaving for T e x a s on December 20, 2007. Mendiola and Tampa never discussed how the leukemia might affect Mendiola's a b ility to work. However, when asked about whether "Mendiola's illness affected his job p e rf o rm a n c e," Tampa replied "In the last few weeks, yes. . . . [T]he last few weeks he was o n the properties, after he found out he got an issue with his blood sugar, he was not too 6

m u c h on the property. Most of the time he ran around checking the doctor. He was just not a t work." 2 (Tampa Dep. Doc. # 41-2 Ex. 4 45-46.) Here again the accounts differ. Mendiola c la im s he "never missed work" because we went to the doctor's office only during lunchtime. (M en d iola Dep. Doc. # 41-5 Ex. 7 82.) Mendiola also testified to a marked difference in Tampa's demeanor following the ten tativ e diagnosis: [I]t's very evident that as soon as I started reporting my illness to Mr. Tampa, h is conversation with me almost went from calling me five times a day to zero . . . . So once I reported to him or advised him, as a courtesy, this was going on w ith my health . . . our conversation almost went from, like I said, five phone c a lls a day to zero. And so there's no other explanation for me as far as his p e rc e p tio n of me not being able to comply with, I guess, his needs for me to o p e ra te the hotel, and he was totally wrong. . . . First I told him about the d ia b e te s and then, after that, it was determined that leukemia was in play. T h a t's when it really, really got silent, and then I start getting these memos and a ll of a sudden, you know, he's talking about that I mentioned to him that I was g o in g back.

(Mendiola Dep. Doc. # 41-5 Ex 7 96-97.) As Mendiola's statement here shows, there were m em o s exchanged during this period relating to Tampa's dissatisfaction with Mendiola's p erf o rm an ce as manager. P o r tio n s of Tampa's version of events are corroborated by the testimony of two other d ep o n en ts. Beverly Woods ("Woods"), the director of sales, and Timothy Banks ("Banks"), th e assistant manager, claim Mendiola told them that he had been diagnosed with leukemia While Tampa refers to Mendiola finding out about an "issue with his blood sugar," it is clear from the totality of the deposition testimony that he is referring to the tentative leukemia diagnosis. 7
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a n d was relocating to Texas for treatment. Woods' testimony is somewhat inconsistent, h o w e v e r, because she later claims Mendiola did not say he certainly was leaving, but only sa id that he could get free treatment in Texas. Both Woods and Banks note that Mendiola d id not say he was resigning. They both claim that in December of 2005, the management o f the hotel, including Woods, Banks and Mendiola, participated in a conference call with T a m p a . According to their testimony, during this call Tampa announced that Mendiola was le a v in g the company and moving back to Texas. Banks claims Mendiola did not say a n yth in g during that call. Whether this call happened before or after Tampa informed M en d iola that he hired a replacement is not clear. Woods also testified that Luker, Tampa's g irlf rie n d , told her that she would be returning to Texas with Mendiola. Mendiola disputes all of this testimony. He claims he informed hotel personnel of his te n ta tiv e diagnosis and the need for further testing "[n]ot at a group or a department head m e e tin g , but as I went around." (Mendiola Dep. Doc. # 41-5 Ex. 7 73.) After the phone call, M e n d io la claims he told Banks that he had not resigned, that in fact he had been terminated b e c a u s e of his illness, and that Tampa had already made the decision to terminate him. He c la im s he never spoke with Banks about his treatment plan or returning to Texas. He also c la im s he never spoke to Woods about his condition or returning to Texas. Mendiola thinks B a n k s and Woods testified falsely out of fear of reprisal from Tampa. Mendiola further c laim s that he did not discuss with Luker whether he planned to relocate to Texas prior to his f in a l diagnosis, saying that he would "never discuss that" with her because he did not think

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it prudent to "tell the girlfriend everything." (Mendiola Dep. Doc. # 41-5 Ex. 7 72.) On December 22, 2005, Mendiola received confirmation that he had leukemia. H o w e v e r, the disease was in remission, which meant that he would not need medical tr e a tm e n t. Mendiola then filed for unemployment benefits with the State of Alabama Department o f Industrial Relations Unemployment Compensation Agency. The Agency found he was f ire d without cause and granted his request for benefits. Mendiola then filed a charge of d is c rim in a tio n with the Equal Opportunity Employment Commission ("EEOC") against I.T. M o n tgo m ery. The EEOC found there was probable cause to believe I.T. Montgomery v io la te d the ADA. Mendiola received a right to sue letter from the EEOC, and on May 24, 2 0 0 7 , he filed this action. Defendants moved for summary judgment on March 14, 2008. (Doc. # 23.) Because o f some discovery difficulties, however, that motion was not supported by deposition tes tim o n y. Mendiola moved to continue the summary judgment deadline so the parties could c o n d u c t more discovery. (Doc. # 27.) The Court granted that motion on May 12, 2008. (D o c . # 33.) Depositions were taken and, by leave of this Court (Doc. # 37), J.T. Hotels w as added as a Rule 19 defendant (Doc. # 36). Defendants then moved for summary ju d g m e n t a second time. (Doc. # 40.) The Renewed Motion is substantively similar to the o rig in a l, but is accompanied by deposition testimony. That Motion is now under submission a n d ripe for disposition.

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V . DISCUSSION M e n d io la claims he was terminated in violation of the ADA. The ADA prohibits an e m p lo ye r from discriminating against "a qualified individual with a disability because of the d isa b ility of such individual in regard to job application procedures, the hiring, advancement, o r discharge of employees, employee compensation, job training, and other terms, conditions, a n d privileges of employment." 42 U.S.C. § 12112(a). A claim under the ADA is analyzed u n d e r the same burden-shifting analysis applicable to Title VII claims. Earl v. Mervyns, Inc., 2 0 7 F.3d 1361, 1365 (11th Cir. 2000). To establish a prima facie case of ADA d is c rim in a tio n , a plaintiff "must demonstrate that [he] (1) is disabled, (2) is a qualified in d iv id u a l, and (3) was subjected to unlawful discrimination because of [his] disability." G r e e n b er g v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (internal q u o tatio n s omitted). There is no dispute that Mendiola is qualified, and Defendants do not, a t this stage, challenge Mendiola's proof on the third element--that Tampa discriminated a g a in st him because of his disability. The Court therefore considers only whether Mendiola h a s a disability for purposes of the ADA. Defendants also seek dismissal of all claims ag ains t Vision Hospitality, and parties on both sides challenge portions of the other's e v id e n c e . The Court will dispose of these preliminary matters before turning to the dispute o v e r Mendiola's disability. A. Defendant Vision Hospitality M e n d io la asserts a claim of disability discrimination against Vision Hospitality under

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th e theory that he was employed by both I.T. Montgomery and Vision Hospitality during the re le v a n t period. Defendants seek summary judgment on the claim against Vision Hospitality. T h e y argue that the claim should be dismissed because ADA claims provide only employer lia b ility and Vision Hospitality was not Mendiola's employer. See Mason v. Stallings, 82 F .3 d 1007, 1009 (11th Cir. 1996); Doe v. Dekalb County School District, 145 F.3d 1441, 1 4 4 7 (11th Cir. 1998). Mendiola acknowledges in his Response to Defendants' Renewed M o tio n for Summary Judgment that there is no evidence in the record that he was employed b y Vision Hospitality. The Court has likewise not found evidence that would allow a re a s o n a b le fact finder to conclude that Mendiola was employed by Vision Hospitality. Therefore, all claims against Vision Hospitality are due to be dismissed. B . Plaintiff's Motion to Strike M e n d io la 's response to Defendants' Renewed Motion for Summary Judgment co n tain s "Plaintiff's objections to Defendants' summary judgment evidence." The Court c o n s tru e s this part of Mendiola's response as a Motion to Strike. Mendiola argues that three sentences, one sentence each from the affidavits of Tampa, W o o d s , and Banks, should be stricken because they are conclusory, contain incompetent le g a l opinions, or are hearsay.3 These arguments have no merit.

Mendiola points out that it is not clear whether the affidavits are part of the summary judgment submission. The Court agrees, but since the Defendants cite the affidavits throughout their brief, because the affidavits were submitted with the prior Motion for Summary Judgment, and because their contents are materially identical to the deposition testimony of the three affiants, the Court both considers them as evidence and will rule on this Motion to Strike. 11

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T h e three sentences Mendiola asks the Court to strike all pertain to the impression T a m p a , Woods, and Banks had when Mendiola told each of them he had been diagnosed w ith leukemia. They all three state (both in their affidavits and in deposition testimony) that th e y understood Mendiola to be resigning from his employment. While the Court expresses n o opinion on the ultimate admissibility of this testimony, these statements of how the three u n d erstoo d their conversations with Mendiola are not opinions, they do not concern matters o f law, and they are not hearsay. They are testimony by persons with first hand knowledge (in d e e d , the only persons who could have first hand knowledge) of what they took from their re sp e c tiv e conversations with Mendiola. As such, Plaintiff's Motion to Strike is due to be d e n ie d . C . Defendants' Motion to Strike In their reply brief, Defendants argue that a record from the Alabama Department of In d u s tria l Relations, which Mendiola submitted with his opposition to Defendants' Motion, s h o u ld be stricken because it is hearsay within hearsay and should not be considered.4 The C o u rt construes this argument as a Motion to Strike. Defendants correctly point out that the Eleventh Circuit has held that inadmissible

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The record states:

This agency has received information from IT Montgomery LLC concerning your most recent separation from work due to informing the employer that you had medical problems and wanted to go home to Texas for treatment. You were told that after your recovery you would be considered for rehire. (Doc. # 47-6 Ex. 5.) 12

h e a rs a y generally cannot be considered on a motion for summary judgment. Macuba v. D e b o e r, 193 F.3d 1316, 1322-23 (11th Cir. 1999). It is not clear, however, that this report w o u ld be excluded. The problems Defendants point to are remedied by one exception to the h e a rs a y rule and one exemption from the definition of hearsay. See Fed. R. Evid. 805. The e x c ep tio n for public records and reports excepts the first layer of hearsay, Fed. R. Evid. 8 0 3 (8 ), and the second layer is not hearsay because it is an admission by a party-opponent, F e d . R. Evid. 801(d)(2). While the Court expresses no opinion on the ultimate admissibility o f the report, it will consider the material in ruling on this Motion. Therefore, Defendants' M o tio n to Strike is due to be denied. D. Disability T o establish a prima facie case of ADA discrimination, a plaintiff "must demonstrate th a t [he] (1) is disabled, (2) is a qualified individual, and (3) was subjected to unlawful d is c rim in a ti o n because of [his] disability." Greenberg v. BellSouth Telecomms., Inc., 498 F .3 d 1258, 1263 (11th Cir. 2007) (internal quotations omitted). Defendants argue in their M o tio n that Mendiola has not met his burden of production on the issue of disability. The A D A defines "disability," as (A) a physical or mental impairment that substantially limits one o r more of the major life activities of such individual; (B) a record of such an impairment; o r (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)-(C). M e n d io la claims that he is disabled for purposes of the ADA because Tampa regarded him as being substantially limited in the performance of a major life activity under subsection (C).

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T h e re are two ways an employer may regard one as having a disability: "(1) a covered e n tity mistakenly believes that a person has a physical impairment that substantially limits o n e or more major life activities, or (2) a covered entity mistakenly believes that an actual, n o n lim itin g impairment substantially limits one or more major life activities." Sutton v. U n ite d Air Lines, Inc., 527 U.S. 417, 489 (1999). Mendiola claims Tampa committed the s e c o n d mistake.5 " M a jo r life activities" encompass "functions such as caring for oneself, performing m a n u a l tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C .F .R § 1630.2(I); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 n.1 (11th C ir.1 9 9 8 ). The major life activity Mendiola relies upon is "working." The inability to perform a single, particular job does not constitute a substantial lim ita tio n in the major life activity of working. Id. "When individuals claim that they are su b sta n tially limited in the major life activity of `working,' their condition `must significantly re stric t [their] ability to perform either a class of jobs or a broad range of jobs in various classe s.'" Stewart v. Happy Herman's Cheshire Bridge, 117 F.3d 1278, 1285 (11th Cir.

Leukemia is clearly a physical impairment. The EEOC regulations on the subject define physical impairment as: Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculosketal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, endocrine. . . . 29 C.F.R. § 1630.2(h)(1). Leukemia affects at least the hemic and lymphatic systems. 14

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1 9 9 7 ) (citing 29 C.F.R. § 1360.2(j)(3)(I)). A "class of jobs" is defined as: T h e job from which the individual has been disqualified because of an im p a irm e n t, and the number and types of jobs utilizing similar training, k n o w le d g e , skills of abilities, within that geographical area, from which the in d iv id u a l is also disqualified because of the impairment. 2 9 C.F.R. § 1630.2(j)(3)(ii)(B); see also Witter v. Delta Airlines, 138 F.3d 1366, 1370 (11th C ir . 1998). A "broad range of jobs in various classes" is defined as:

T h e job from which the individual has been disqualified because of an im p a i rm e n t , and the number and types of other jobs not utilizing similar tra in in g , knowledge, skills or abilities, within that geographical area, from w h ich the individual is also disqualified because of the impairment. 2 9 C.F.R. § 1630.2(j)(3)(ii)(C); see also Whitter, 138 F.3d at 1370. Therefore, it is not

e n o u g h for Mendiola to show that his employer was aware of his physical illnesses. He also m u s t point to evidence from which it can be inferred that Tampa perceived, considered or tre a ted Mendiola's leukemia or other health problems as substantially limiting his ability to p e r f o r m a class of jobs or a broad range of jobs. See Roberts v. Rayonier, Inc., 135 Fed. A p p x . 351, 356 (11th Cir. 2005). D e f e n d a n ts argue that Tampa could not have regarded Mendiola as disabled because M e n d io la did not tell Tampa anything about how the leukemia diagnosis would affect his a b ility to work. They rely on Carruthers v. BSA Advertising, Inc., 357 F.3d 1213, 1216-17 (1 1 th Cir. 2004), in which the Eleventh Circuit held the district court should have granted ju d g m e n t as a matter of law where the employer's knowledge of the plaintiff's condition was lim ite d to a physician's diagnosis of a bilateral hand strain/sprain and work restrictions. 15

M e n d io la argues that Tampa's stark change in behavior is evidence that Tampa r e g a rd e d Mendiola as unable to perform his job and a broad range of jobs. Mendiola also c laim s that, given his initial unambiguous statement that he might return to Texas and his re p e a ted attempts to reiterate this message after he became aware Tampa hired a replacement, th e only reason Tampa would have ignored Mendiola and summarily terminated him was the L e u k e m ia diagnosis. Mendiola also points to Tampa's statement to the Alabama Department o f Industrial Relations Unemployment Compensation Agency and during his deposition that T a m p a would consider Mendiola for rehire once he "recovered" from Leukemia. Finally, M e n d io la points to Tampa's statements that Mendiola's illness affected his job performance a n d memos expressing the same sentiment as evidence that Tampa regarded Mendiola as u n a b le to work. At the outset, the Court notes that a disability claim based upon a "regarded as" theory re q u ire s a determination about the subjective state of mind of the employer. Such questions a re not easily proven through deposition transcripts and affidavits, and are therefore generally m o re appropriate for the jury than for the judge. See Ross v. Campbell Soup Co., 237 F.3d 7 0 1 , 709 (6th Cir. 2001). Additionally, because the inquiry involves a determination about th e defendant's state of mind, evidence that would be offered to show discriminatory intent m a y be relevant to the question of whether the defendant regarded the employee as disabled. M c E lr o y v. Phillips Medical Sys. of North America, Inc., 127 Fed. Appx. 161, 168 (6th Cir. 2 0 0 5 ).

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M e n d io la points to two sets of statements made by Tampa to support the proposition th a t Tampa regarded Mendiola as unable to perform a class of jobs or a broad range of jobs. See Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468, 476 (5th Cir. 2006) (f o c u sin g in a regarded as case on the statements of the employer that the plaintiff was not q u a lifie d for any positions at defendant-employer's plant); Muller v. Hotsy Corp., 917 F. S u p p . 1389, 1411-12 (N.D. Iowa 1996) (holding that statement by employer that it was "hard to believe that [plaintiff] could ever recover from such a severe injury" created triable issue o n regarded as claim). The first statements are clearest and most direct. In his deposition, T a m p a responded affirmatively when asked if Mendiola's illness affected his job p e r f o rm a n c e . If Tampa believed Mendiola's leukemia interfered with his performance as m a n a g e r in a way not related to his particular job as hotel general manager, these statements g ive rise to a permissible inference that Tampa thought Mendiola's illness would interfere w ith a broad range of jobs or all management jobs. This reasoning is buttressed by analogous in f e re n c es from memos sent by Tampa to Mendiola during the same time period expressing n e w f o u n d dissatisfaction with how Mendiola was performing as general manager. There is a second set of statements that could support an inference that Tampa thought M e n d io la was unable to perform a broad class of jobs. Mendiola points out that Tampa told the Alabama Department of Industrial Relations that he could consider Mendiola for rehire o n c e he recovered from his illness. Additionally, in his deposition, Mendiola was asked w h e th e r he ever told anyone that when Mendiola recovered from his illness he could come

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b a c k to work for Tampa. He responded that "if somebody asks me, yes." (Tampa Dep. Doc. # 41-2 Ex. 4 99.) These statements to the effect that Mendiola would be considered for r e h ir e or could come back and work with Tampa when he recovered from his illness o b v io u sly admit of two interpretations. One, offered by Tampa, is that Tampa would c o n sid e r rehiring Mendiola when he completed his course of treatment and was free to leave T e x a s. The other, urged by Mendiola, is that Tampa would consider rehiring Mendiola when h e was able to work again. Because the Court must construe this fact in the light most f a v o ra b le to Mendiola, the nonmovant, it must, for purposes of this Motion, treat this as an a d m iss io n by Tampa that he would consider re-hiring Mendiola when he was again able to w o r k .6 T h e re is, moreover, circumstantial evidence of discriminatory intent, which is relevant to Tampa's state of mind. McElroy, 127 Fed. Appx. at 168. The temporal proximity (5 days o r less) between Mendiola's disclosure of his diagnosis and Tampa's decision to find a re p la c em e n t, together with (under Mendiola's version of the events) the absence of an a lte rn a tiv e nondiscriminatory explanation, is evidence of a discriminatory motive. See P u c k ett v. Shinbaum, 2008 WL 906569, at *19 n.9, No. 2:06-cv-1148-ID (M.D. Ala. March

Mendiola's interpretation indicates that Tampa may have thought Mendiola's im p a irm e n t was temporary, in which case Tampa would not have regarded Mendiola as h a v in g a disability within the terms of the ADA. Additionally, the Court is aware that T a m p a also said that if Mendiola had not resigned, that he could stay and work. This o b v io u s ly cuts against Mendiola's argument that Tampa regarded him as unable to work a b ro a d range of jobs. 18

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3 1 , 2008) (DeMent, J.). If Mendiola's version of Tampa's actions following the diagnosis a re to be believed--particularly his stubborn refusal to acknowledge Mendiola did not re sig n -- th e y give rise to a permissible inference that Tampa thought Mendiola unable to p e rf o rm his job or a broad class of jobs. Plaintiff also urges the Court to consider the EEOC probable cause determination in ru lin g on the Motion. Defendant argues the EEOC's determination in this case is based on P la in tiff 's evidence alone and is therefore untrustworthy. While the Eleventh Circuit g e n e ra lly considers EEOC determinations "highly probative," the Circuit has eschewed a per s e rule of admissibility of probable cause determinations at trial in recognition of the varying q u a lity of such determinations. Barfield v. Orange County, 911 F.2d 644, 650 (1990). The r u le allows a trial judge in a jury trial the discretion to admit or exclude probable cause d e te rm in a tio n s upon consideration of both the probative value and the potential for prejudice. Id . This Court does not at present make a determination about the ultimate admissibility of th e EEOC determination in this case, but does note it as an additional reason that this case s h o u ld be allowed to continue to trial. As a final note, Carruthers v. BSA Advertising, Inc., 357 F.3d 1213 (11th Cir. 2004), is not determinative of this case. First, Carruthers involved a hand sprain, whereas this case in v o lv e s leukemia. While a simple difference in diagnosis is not a meaningful point of d is tin c tio n , it is generally known that cancer is at best debilitating and at worst deadly. See H e y m a n v. Queens Village Comm., 198 F.3d 68, 73 (2d Cir. 1999) (holding that employer

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reg ard ed employee as disabled where employee was diagnosed with lymphoma and where f a c ts showed employer expected employee to miss work as a result of his lymphoma). On th e other hand, a hand sprain is at best a minor and transient inconvenience, and only in s e v e r e cases would a hand sprain be debilitating. Given these differences, one expects a d if f ere n t set of assumptions to arise from these very different diagnoses. Moreover, the E le v e n th Circuit in Carruthers recognized the transitory nature of hand sprain when it held th a t the diagnosis did not carry the "permanent or long term impact" necessary to a finding o f disability under the ADA. It is widely known, however, that a cancer diagnosis is lifelong. S e c o n d , the only other evidence in Carruthers was that the employer (1) told the p la in tif f she must maintain a full time schedule, and (2) advertised for her replacement after it learned she would not be able to perform the basic tasks of her position. This case involves s ta te m e n ts by Tampa that the Court must construe to mean the he thought Mendiola was u n a b le to work generally. Moreover, by Mendiola's account, Tampa engaged in an

in e x p lic a b le refusal to acknowledge that Mendiola did not resign, and sought his replacement s h o rtly after Tampa learned of the diagnosis. All of these facts, together with the difference in permanence and severity of the diagnoses distinguish this case from Carruthers. VI. Conclusion L ik e all plaintiffs pursuing regarded as claims under the ADA, Mendiola faces a f o rm id a b le challenge at trial. Nevertheless, in light of the conflicting facts on the issue of d is a b ility in the record, the two parallel but mutually exclusive accounts of events presented

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b y Mendiola and Tampa, and the difficulty in determining subjective state of mind as a m a tte r of law, the Court finds that the evidence is sufficient to create a triable issue on w h e th e r Tampa regarded Mendiola as being unable to work a broad range of jobs in various c las se s or a class of jobs. Therefore, it is hereby ORDERED: (1) that Plaintiff's Motion to Strike is DENIED; (2) that Defendants' Motion to Strike is DENIED; (3) that Defendants' Renewed Motion for Summary Judgment (Doc. # 40) is D E N IE D ; and (4) that Defendants' Motion for Summary Judgment (Doc. # 23) is DENIED as moot.

D o n e this the 8 th day of December, 2008 /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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