Rouse v. Tenneco Automotive Operating Company Inc

Filing 26

ORDER granting deft's 13 Motion for Summary Judgment; the relief sought is denied; judgment will be entered accordingly. Signed by Judge Brian S. Miller on 4/4/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
LARRY ROUSE
v.

PLAINTIFF
CASE NO. 3:10CV00262 BSM

TENNECO AUTOMOTIVE OPERATING
COMPANY, INC., fictitiously known as
MONROE AUTO EQUIPMENT COMPANY

DEFENDANT

ORDER
Defendant Tenneco Automotive Operating Company, Inc.’s (“Tenneco”) motion for
summary judgment [Doc. No. 13] is granted.
I. FACTUAL BACKGROUND
Viewed in the light most favorable to plaintiff Larry Rouse, the nonmoving party, the
undisputed facts are as follows. Rouse began working for Tenneco, a manufacturer of
automobile parts, in July 2001. Defendant’s Statement of Undisputed Facts (“Dfdt’s SUF”),
¶¶ 1, 2. Throughout his approximately eight-year tenure with Tenneco, Rouse transferred
positions twenty-five times and held sixteen different jobs. Id. ¶ 4. Although several of these
reassignments were made at Rouse’s request, Rouse was often demoted due to poor work
performance and misconduct in the workplace. Ex. 5 to Dfdt’s SUF. Indeed, Rouse received
seventeen disciplinary actions or negative performance evaluations over approximately eight
years, including reprimands for poor performance, safety violations, absenteeism, spraying
a temporary employee with detergent, and sexually harassing two female co-workers. Dfdt’s
SUF ¶ 5; Diggs Aff. ¶ 3. Early in his career, however, Rouse was recognized for being part

of a team that produced a record number of parts during a particular shift. Weaver Dep., at
21.
Rouse asserts that much of his disciplinary record has “rolled off” because of the
passing of time and that much of his poor conduct in the workplace is attributable to mental
health problems and brain damage. Rouse Dep., at 51; Plaintiff’s Brief, at 11, 24.
Specifically, Rouse contends that he received brain injuries from an altercation with two
police officers and that he suffers from undiagnosed bipolar disorder. Rouse Dep., at 39, 51.
Rouse also believes that his sleep apnea further impairs his cognitive abilities. Id. at 57. Due
to financial concerns, Rouse has not sought treatment from a neurologist or psychiatrist for
these conditions. Id. at 52. He did, however, attend court-ordered anger management classes
and more recently appeared for a psychological examination required by the Social Security
Administration. Id. at 52-55. Rouse did not disclose his concerns about his cognitive
functioning to Tenneco, and he does not believe his co-workers or management suspected
that anything was wrong. Id. at 55. Rouse identified only one job at his former plant that
would be difficult for him to perform in light of his mental conditions. Id. at 56.
In addition to his cognitive difficulties, Rouse has alleged that he suffers from
cardiovascular, eye, and back problems. Complaint ¶ 21; Rouse Dep., at 32. Rouse’s EEOC
charge states that he suffered two heart attacks in 2006, but it appears that he may have only
suffered from poor circulation in his legs and from varicose veins. Ex. 3 to Plaintiff’s
Response; Rouse Dep., at 41-51. According to Rouse, however, his cardiovascular problems
are not disabling and are sufficiently managed with aspirin and nitroglycerin pills. Id. at 42,
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46. Indeed, Rouse testified that these problems would only prevent him from working as a
bushing machine operator and dirt shield welder because those jobs require a faster pace. Id.
at 49.
As to his vision problems, Rouse contends that he requires corrective lenses but
admits that he has never been to an eye doctor of any kind. Id. at 58. He wears glasses
purchased from Walmart, and these glasses help him see better. Id. While performing a
particular welding job, Rouse complained that he could not see out of his company-issued
safety glasses and was subsequently provided prescription bi-focal safety glasses. Id. at 59.
Rouse believes that the bi-focal safety glasses were the wrong prescription, and, although he
did not complain to anyone in human resources, he did tell other Tenneco employees. Id.
Rouse’s most serious health problem appears to be back pain. On March 13, 2006,
Rouse injured his back while reaching for a part. Id. at 61. This was the first time Rouse had
ever hurt his back, and he went to a physician on the same day complaining of a burning and
tingling sensation in his back. Id.; Ex. 5 to Rouse Dep. He was given prescriptions for pain
medication, and lumbar spine x-rays were taken at a follow up visit. Ex. 4 and 5 to Rouse
Dep. Rouse returned to work almost immediately, but on light duty. Rouse Dep., at 63.
Although Rouse continued to suffer from lower back pain, he did not seek further treatment
or discuss the matter with Tenneco. Id. at 63-64.
Rouse’s second back injury occurred on April 7, 2008, when he pulled on a shock that
was stuck in a conveyor. Id. at 64; Ex. 8 to Rouse Dep. The record indicates that Rouse went
to a different physician for treatment than for his first injury. Rouse Dep., at 65. Rouse
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maintains that he told this second doctor he suffered from continuous back pain, but the
medical records indicate that Rouse denied chronic back problems. Ex. 9 to Rouse Dep. Once
again, the doctor ordered x-rays and prescribed pain medication. Id. It is not clear whether
Rouse was returned to work with any physical restrictions. Rouse Dep., at 66.
The third incident concerning Rouse’s back happened on August 7, 2009, while he
was working as an order picker. Burns Dep., at 7. This position required Rouse to lift parts
weighing anywhere from four to forty pounds. Id. at 12. It is undisputed that the workers in
that department were working up to ten hour shifts, that the plant was extremely hot, and that
the employees knew they should take a break if they felt they were overheating or at risk of
fainting. Id. at 8-9; Rouse Dep., at 123. Shortly before his shift ended that day, the battery
on Rouse’s jack died. Rouse Dep., at 123. While Rouse was charging his jack, his supervisor,
Richard Burns, approached him to ask what he was doing. Id.; Burns Dep., at 10. Rouse
testified that he was standing by the charger and told Burns that he did not have a working
jack, was tired, and that his back hurt. Rouse Dep., at 123. After Burns told Rouse to either
clock out or get back to work, Rouse told Burns to “call me an ambulance.” Id.
Burns immediately notified Harold Diggs, the plant’s human resources manager, of
Rouse’s request and Diggs ordered Peggy Dean, the plant’s occupational safety nurse, to take
Rouse to the company doctor. Rouse Dep., at 124; Diggs Aff. ¶ 4. Dean asked Rouse about
his back, and Rouse got angry with her for asking questions, complained about her car being
too hot, and asked if he could smoke a cigarette. Dean Dep., at 8. Rouse did not appear to
Dean to be in pain or struggling with his gait or posture. Ex. A to Dean Dep. After she
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checked Rouse in at the doctor’s office, Dean phoned Diggs to say she did not think there
was anything wrong with Rouse’s back. Id. Dean states that Rouse was asking patients for
cigarettes and that the receptionists indicated that Rouse was obviously feigning his injury
because he was “flopping in the chair.” Id.
While Rouse was waiting to see the doctor, Diggs arrived in the waiting room and
asked Rouse to visit with him outside. Id.; Diggs Aff. ¶ 4. It is undisputed that Diggs told
Rouse that he suspected that Rouse’s back was not injured. Rouse Dep., at 125; Diggs Aff.
¶ 4. The parties vigorously contest what happened next. Rouse contends that Diggs told him
to come to work on Monday morning and that he would find another job for Rouse. Rouse
Dep., at 125. Diggs maintains that Rouse wryly smiled when he suggested Rouse was
feigning injury and that he interpreted the expression as if Rouse were acknowledging that
Rouse’s back was not injured. Diggs also asserts that Rouse happily accepted Diggs’s offer
to transfer him from the order picker job to another position in the plant. Diggs Aff. ¶ 4.
Diggs believed that Rouse was not truly injured, but wanted a different job and to be off
work that weekend. Diggs Dep., at 17. Shortly after his conversation with Diggs, Rouse
returned to the plant in Dean’s car without seeing the doctor, and he did not seek any medical
attention for his back until after his termination on September 3, 2009. Diggs Aff ¶ 4; Rouse
Dep., at 128.
Diggs and Rouse met as planned on Monday, August 10, 2009. Diggs Aff. ¶ 5. Diggs
prepared a written statement providing that Rouse would receive a temporary position in the
packaging department until a full-time position became available. Diggs Dep., at 13. The
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statement also provided that Rouse would not be demoted again and that any misconduct
would lead to termination. Id. Rouse worked in the packaging department for one week
where he operated a piece of equipment called the Douglas machine. Id. He performed this
temporary job satisfactorily. Id. at 24.
In the meantime, two permanent positions became available: a head assembly job and
a welding job. Id. at 14. Rouse chose the welding position, at which he operated a robot
welder. Id.; Rouse Dep., at 132. It is undisputed that Rouse performed this job poorly, but
Rouse contends that it is related to the fact that he could not see the welds through his safety
glasses. Diggs Aff. ¶ 6; Rouse Dep., at 132. Rouse’s supervisor directed two other employees
to assist Rouse with the robot welder, but his performance did not improve. Ex. 6 to Rouse
Dep., at 100-01, 179-82.

Rouse became increasingly hostile to his coworkers and

supervisors. Id. Rouse was terminated on September 3, 2009, based on information from his
supervisor and his performance and disciplinary history. Diggs Aff. ¶¶ 6, 7.
Rouse brings employment discrimination claims under the Americans with
Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). He also
makes passing reference to “pendent state claims based on a breach of implied contract of
employment.” Tenneco moves for summary judgment, asserting that no genuine issues of
material fact exist and that it is entitled to judgment as a matter of law on all claims.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if, after viewing the evidence in the light most favorable
to Rouse, no genuine issues of material fact exist and Tenneco is entitled to judgment as a
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matter of law. Nelson v. Corr. Med. Servs., 533 F.3d 958, 961 (8th Cir. 2008). Rouse cannot
survive the motion for summary judgment merely by pointing to disputed facts; the facts in
dispute must be material to the outcome of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1985). If the facts alleged by Rouse, when viewed in the light most
favorable to his case, would not allow a reasonable jury to find in his favor, then summary
judgment should be granted in favor of Tenneco. Bloom v. Metro Heart Group of St. Louis,
Inc., 440 F.3d 1025, 1029 (8th Cir. 2006).
III. DISCUSSION
A.

Americans with Disabilities Act
Summary judgment is appropriate on Rouse’s ADA claim because he is not disabled

and his employer did not regard him as disabled. Rouse argues that his back injuries, or
Tenneco’s perception of his back injuries, constitute a disability under the ADA, and that he
was terminated because of that disability. Tenneco maintains that Rouse was neither disabled
nor regarded as disabled, was not qualified to perform the essential functions of his job, and
was not meeting its legitimate job expectations. In the alternative, it contends that Rouse has
not shown that its proffered nondiscriminatory reason for firing him was pretextual.

To recover under the ADA, Rouse must first show that he is disabled. The ADA’s
definition of disability covers three different sorts of individuals: (1) those with a physical
or mental impairment that substantially limits one or more major life activities; (2) those who
have a record of such an impairment; and (3) those who are regarded as having such an
impairment. Norman v. Union Pac. R.R. Co., 606 F.3d 455, 459 (8th Cir. 2010).
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To qualify as disabled under the first definition, actual impairment, Rouse must show
(1) that he is “unable to perform a major life activity that the average person in the general
population can perform,” or (2) that he is “significantly restricted as to the condition,
manner, or duration under which [he] 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.” Nyrop v. Independent School
Dist. No. 11, 616 F.3d 728, 733-34 (8th Cir. 2010). Major life activities include “‘caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working.’” Id. at 734 (quoting 29 C.F.R. § 1630.2(I)). The following three factors
determine whether an individual is substantially limited in a major life activity: (1) the nature
and severity of the impairment; (2) the duration or expected duration of the impairment; and
(3) the permanent or long term impact, or the expected permanent or long term impact of or
resulting from the impairment. Id. (quotations omitted).
Based on the record, none of Rouse’s ailments is disabling. Giving Rouse every
benefit of the doubt, no reasonable jury could find that his cardiovascular, visual, or
cognitive problems restrict or significantly affect his ability to perform major life activities.
Rouse himself testified that none of these conditions would prevent him from performing
almost any job at Tenneco. Furthermore, there is virtually no medical evidence of the
existence and severity of these maladies.
Rouse’s back condition, however, presents a somewhat closer question. This is

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because Rouse is restricted, at least to some degree, in lifting heavy objects, and lifting is
“part of a set of basic motor functions that together represent a major life activity.”
Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d 780, 783 (8th Cir. 2006). The key
question is whether Rouse’s back injury renders him unable to perform “the set of manual
tasks that are of central importance to most people’s daily lives.” Id. Even after viewing the
evidence in the light most favorable to Rouse, and giving him the benefit of every possible
inference, no reasonable jury could answer that question in the affirmative.
Moreover, Rouse’s case is weaker than the cases presented by other plaintiffs in this
district who have failed to satisfy the ADA’s definition of disability. For example, in Whiten
v. Stuttgart Reg’l Med. Ctr., the plaintiff produced medical evidence of arthritis in her knee
that restricted her ability to work more than eight hours at a time. No. 5:07CV000026 SWW,
at 6 (Doc. No. 47), 2008 WL 229763, at *3 (E.D. Ark. Jan. 28, 2008). The court reasoned
that the plaintiff’s demonstrated ability to continue working following her diagnosis
counseled against a finding of disability. Id. at 7, 2008 WL 229763, at *4. The Eighth Circuit
summarily affirmed the adverse grant of summary judgment. Whiten v. Stuttgart Reg’l Med.
Ctr., 333 Fed. App’x 138 (8th Cir. 2009) (per curiam).
Rouse’s medical records do not provide objective medical evidence of a chronic back
condition. Instead, it appears that Rouse received three discrete injuries during his last three
years at Tenneco. After each injury, he promptly returned to work with few or no
restrictions, working in physically demanding jobs for long hours in difficult circumstances.
He sought no treatment aside from worker’s compensation and social security health
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examinations. For these reasons, Rouse’s back problems do not restrict the condition,
manner, or duration under which he can perform a particular major life activity as compared
to the average person in the general population, and he is not disabled under the ADA.
Additionally, the record is devoid of evidence from which a reasonable jury could
infer that Tenneco regarded Rouse as disabled. To the contrary, the record shows that
Rouse’s supervisors thought he was perfectly healthy and often exaggerated his discomfort
to avoid performing certain tasks or working certain shifts. Because Rouse does not meet any
of the statutory definitions of disability, summary judgment is granted in favor of Tenneco
on Rouse’s ADA claim.
B.

Age Discrimination in Employment Act
Summary judgment is appropriate on Rouse’s ADEA claim because he cannot show

that Tenneco’s proffered reason for his discharge was pretextual. Rouse was forty-eight
years old when he filed his charge of discrimination with the EEOC. The only allegation in
his complaint germane to this claim is that several Tenneco employees called him “old man”
once or twice a week during the last three years of his tenure with the company. He further
argues that the testimony of one of these individuals, Rick Weaver, establishes that it was
possible to “set up” an employee working the robot welder for termination by not properly
calibrating the machine prior to that employee’s shift. Tenneco maintains that Rouse cannot
make out a prima facie case of age discrimination under the ADEA. In the alternative, it
contends that Rouse has not shown that its proffered nondiscriminatory reason for firing
Rouse was pretextual.
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Under the ADEA, an employer may not discriminate against persons forty years or
older because of their age. 29 U.S.C. § 623(a). To prevail, a plaintiff “must show, by a
preponderance of the evidence, that age was the “but-for” cause of the challenged adverse
employment action.” Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011). Stray
remarks in the workplace, such as the “old man” barbs at issue here, do not constitute direct
evidence of age discrimination under the ADEA. Ramlet v. E.F. Johnson Co., 507 F.3d 1149,
1153 (8th Cir. 2007). Therefore, Rouse’s claim will be analyzed according to the burden
shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Haigh, 632 F.3d at 468.
Under McDonnell Douglas, Rouse must first make out a prima facie case of age
discrimination by showing: (1) he was at least 40 years old; (2) he was terminated; (3) he was
meeting Tenneco’s reasonable expectations at the time he was terminated; and (4) he was
replaced by an individual who was substantially younger. Id. (citing Roeben v. BG Excelsior
Ltd. P’ship, 545 F.3d 639, 642 (8th Cir.2008)). If Rouse establishes a prima facie case, the
burden of production shifts to Tenneco to articulate a legitimate, nondiscriminatory reason
for the termination. Id. Finally, if Tenneco provides such a reason, Rouse must prove, by a
preponderance of the evidence, that Tenneco’s reason was mere pretext for discrimination.
Id.
Tenneco argues that Rouse cannot satisfy the third element, meeting reasonable
expectations, because of his lengthy disciplinary record and numerous job changes. Although
Rouse was obviously not a model employee, a reasonable jury could find that he “possesses
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the basic skills necessary” to work at Tenneco’s plant. See McGinnis v. Union Pacific R.R.,
496 F.3d 868, 874 (8th Cir. 2007). Therefore, for the purposes of this motion, Rouse can
establish the third element of his prima facie case.
It is not clear whether Tenneco replaced Rouse with a substantially younger
individual. Indeed, in the four pages of Rouse’s brief devoted to his ADEA claim, there is
only one conclusory reference to his prima facie case. Instead, Rouse focuses on his
cognitive impairments and alleges a general conspiracy on the part of Tenneco’s
management. For the sake of making a clear record and because Tenneco produced a
nondiscriminatory reason for Rouse’s discharge, namely that Rouse performed his job
poorly, the analysis will continue.
Rouse can demonstrate a material question of fact regarding pretext in one of two
ways: (1) by showing that Tenneco’s proffered explanation is “unworthy of credence . . .
because it has no basis in fact,” or (2) by using comparators to show that Rouse’s age was
the actual reason for his discharge. See Torgerson v. City of Rochester, 643 F.3d 1031, 1047
(8th Cir. 2011). Tenneco asserts that it fired Rouse simply because of poor work
performance. Despite Rouse’s belief that management conspired against him by placing him
in a situation that would ensure his failure, there is ample factual support in the record for
Tenneco’s explanation. Furthermore, Rouse has not come close to meeting his burden of
identifying a comparator “similarly situated in all relevant respects” whose misconduct was

of a “comparable seriousness” to that of himself. See Smith v. Allen Health Systems, Inc., 302
F.3d 827, 835 (8th Cir. 2002); Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir.
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1988). Accordingly, Rouse has failed to identify triable issues of fact as to his age
discrimination claim, and summary judgment is therefore appropriate.
C.

Breach of Implied Contract
In paragraph one of his response to the pending motion, [Doc. No. 20] Rouse makes

passing reference to “pendent state claims based on a breach of implied contract of
employment.” He does not provide any explanation or argument on a contract claim, and
Tenneco does not address one in its motion or reply. Indeed, although a similar reference can
be found in his complaint, Rouse did not set out his breach of implied contract claim in a
separate count, and he also did not include any factual allegations that could give rise to such
a claim. Accordingly, to the extent that Rouse actually seeks relief under a contract theory,
summary judgment is granted in favor of Tenneco.
IV. CONCLUSION
For all of the reasons set forth above, Tenneco’s motion for summary judgment [Doc.
No. 13] is granted, and the relief sought is denied. An appropriate judgment shall accompany
this order.
IT IS SO ORDERED this 4th day of April 2012.
________________________________
UNITED STATES DISTRICT JUDGE

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