Filed: Jan. 06, 1998
Latest Update: Mar. 02, 2020
Summary: REVISED United States Court of Appeals, Fifth Circuit. No. 97-50027. Helen R. BLOOM, Plaintiff-Appellant, v. BEXAR COUNTY, TEXAS, Defendant-Appellee. Dec. 19, 1997. Appeal from the United States District Court for the Western District of Texas. Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges. REYNALDO G. GARZA, Circuit Judge: Helen R. Bloom worked as a full time court reporter in Bexar County, Texas, for more than seven years, ending in July 1993. In 1989, Judge Andy Mireles, 73rd J
Summary: REVISED United States Court of Appeals, Fifth Circuit. No. 97-50027. Helen R. BLOOM, Plaintiff-Appellant, v. BEXAR COUNTY, TEXAS, Defendant-Appellee. Dec. 19, 1997. Appeal from the United States District Court for the Western District of Texas. Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges. REYNALDO G. GARZA, Circuit Judge: Helen R. Bloom worked as a full time court reporter in Bexar County, Texas, for more than seven years, ending in July 1993. In 1989, Judge Andy Mireles, 73rd Ju..
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REVISED
United States Court of Appeals,
Fifth Circuit.
No. 97-50027.
Helen R. BLOOM, Plaintiff-Appellant,
v.
BEXAR COUNTY, TEXAS, Defendant-Appellee.
Dec. 19, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Helen R. Bloom worked as a full time court reporter in Bexar
County, Texas, for more than seven years, ending in July 1993. In
1989, Judge Andy Mireles, 73rd Judicial District Court, hired Bloom
as his official court reporter. Although city and county
ordinances banned smoking in the courthouse facility, Judge Mireles
permitted smoking in his chambers and offices, over which the
county had no control. Bloom began to experience health problems
and missed work periodically over the next four years. Bloom's
doctor advised her that she was suffering from multiple chemical
sensitivity (including sensitivity to environmental tobacco smoke),
asthma, and other related medical conditions. The doctor also
advised Bloom to stop working in the courthouse building, which had
poor ventilation. Bloom requested and received from the district
judges a temporary transfer to the Justice Center, across the
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street from the courthouse.
In June, 1993, Bloom applied to Judge Pat Priest, the local
administrative judge, for an open position as a "swing" reporter,
which involved relieving court reporters in various courts
throughout the county. In her application, Bloom requested
modification of the position so that she would not have to work in
the old courthouse. Judge Priest informed Bloom that she was not
eligible for the swing position because her medical condition would
preclude her from relieving court reporters in the old courthouse.
Rather than return to work in the 73rd Judicial District Court,
Bloom resigned her position.
In June, 1994, after filing and losing a worker's compensation
claim, Bloom filed suit in federal court, alleging that Bexar
County had discriminated against her in violation of the Americans
With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (1997), and
the Civil Rights Act of 1991, 42 U.S.C. § 1981 (1997). Bloom's
complaint alleged that her medical conditions qualified as a
disability under the ADA, thereby obligating Bexar County to
accommodate her disability. Bloom alleged that Bexar County's
failure to accommodate her disability and failure to enforce city
and county ordinances prohibiting smoking in the courthouse
constituted a constructive discharge which amounted to
discrimination. Bloom's complaint sought compensatory damages and
a permanent injunction requiring Bexar County to rehire her as a
court reporter in the Justice Center or in a comparable position
that accommodates her disability.
2
The federal district court denied Bexar County's first motion
to dismiss or, in the alternative, for summary judgment. Following
the exchange of discovery requests and the designation of
witnesses, Bexar County again moved for summary judgment, arguing
that Bexar County was not Bloom's employer for purposes of the ADA
and, therefore, could not have discriminated against her. The
district court found that Bexar County could not have discriminated
against Bloom in violation of the ADA because, under Texas law,
Bexar County had no authority with regard to the hiring, firing, or
assigning of court reporters. The court went on to find that, at
any rate, Bloom had not demonstrated a "disability" as defined in
the ADA. Accordingly, the district court issued a summary judgment
in favor of Bexar County.1 That same day, the district court
denied Bloom's motion for leave to amend her complaint.
Discussion
A. The District Court Properly Granted Summary Judgment on Bloom's
ADA Claims
In this circuit, we review a district court's summary judgment
de novo. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d
996, 997 (5th Cir.1992). In this context, we view the evidence in
the light most favorable to the non-movant.
Id. Summary judgment
is proper if the evidence so viewed shows that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. FED. R. CIV. P. 56(c).
1
Bloom does not appeal the district court's summary judgment
on her § 1981 claims, which the court granted because Bloom's
complaint failed to allege racial or ethnic animus as required by
§ 1981.
3
1. Bloom's Claims Under ADA Title I
Regardless of whether Bloom was disabled, the district court
properly granted summary judgment because Bexar County was not
Bloom's employer for ADA Title I purposes. ADA Title I makes it
unlawful for a covered entity to discriminate against a qualified
individual with a disability "because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). A "covered entity" is an
"employer, employment agency, labor organization, or joint
labor-management committee." 42 U.S.C. § 12111(2). The statutory
term "employer" means "a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each
of 20 or more calendar weeks in the current or preceding calendar
year, and any agent of such person...." 42 U.S.C. § 12111(5)(A).
Bexar County is not a "covered entity" with regard to Bloom
because Bexar County was not Bloom's employer. In Texas, court
reporters are employees of the state, rather than the county.
Gill-Massar v. Dallas County, 781 S.W.2d 612, 617 (Tex.App.—Dallas
1989, no writ). Texas law gives the Texas Supreme Court power to
make rules governing the certification and conduct of court
reporters. TEX. GOV'T CODE ANN. § 52.002 (West 1997). Court
reporters for the Texas district courts are subject solely to the
control of the elected state district judges. See Rheuark v. Shaw,
628 F.2d 297, 301, 306 (5th Cir.1980) (noting that Texas district
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judges have absolute authority over appointment of official court
reporters), cert. denied sub nom. Rheuark v. Dallas County, 450
U.S. 931,
101 S. Ct. 1392,
67 L. Ed. 2d 365 (1981). The district
judges appoint the court reporters, who hold office "at the
pleasure of the court." TEX. GOV'T CODE ANN. § 52.041. A majority of
district judges in Bexar County must agree to the necessity and
method of hiring additional court reporters, and the presiding
judge determines the assignments of any additional reporters so
hired. TEX. GOV'T CODE ANN. § 52.044; see also
Rheuark, 628 F.2d at
301, 306 (noting "district judges in Texas possess absolute
discretionary power to hire as many substitute court reporters as
they deem necessary ...." and "each district judge possesses
absolute authority to appoint an unlimited number of substitute
court reporters as need requires and to compel the county to pay
their salaries and fees.") (footnotes omitted). The Texas
legislature's decision to explicitly vest control of state district
court reporters in state district judges rather than counties
precludes a finding that Bexar County was Bloom's employer for ADA
Title I purposes.
Bloom cites cases supporting the proposition that a defendant
need not be the plaintiff's direct employer to be liable under ADA
Title I, see Carparts Distrib. Ctr. v. Automotive Wholesaler's
Ass'n of New England, Inc., 37 F.3d 12, 18 (1st Cir.1994)
(acknowledging the possibility that particular circumstances may
arise in which Title I would apply where plaintiff is not
technically defendant's employee); United States v. State of
5
Illinois, 3 A.D. Cases 1157, 1994 WL 562180, *2 (N.D.Ill.1994)
("There is no express requirement that the covered entity be an
employer of the qualified individual."); however, Fifth Circuit
precedent counsels against such a finding in this case. Carparts
and State of Illinois rest on an analogy between ADA Title I and
Title VII of the Civil Rights Act of 1964, under which some courts
have considered defendants to be "employers" despite the absence of
a direct employment relationship with the plaintiff.2 See
Carparts, 37 F.3d at 18; State of Illinois,
1994 WL 562180 at *3.
Fifth Circuit precedent as to Title VII, however, is to the
contrary; therefore, Bloom's analogy, even if accepted, would be
unavailing. See Fields v. Hallsville Indep. Sch. Dist.,
906 F.2d
1017, 1019 (5th Cir.1990) (holding that Fifth Circuit test for
2
It is worth noting here that the authority that Carparts and
State of Illinois relied upon for the proposition that a defendant
need not be the direct employer of the plaintiff to be liable under
ADA Title I have since become questionable at best. The Seventh
Circuit expressly overruled the primary Title VII case that the
district court relied upon in State of Illinois, which the First
Circuit also cited in Carparts. See Alexander v. Rush North Shore
Med. Ctr., 101 F.3d 487 (7th Cir.1996) (overruling Doe v. St.
Joseph's Hosp. of Fort Wayne,
788 F.2d 411 (7th Cir.1986)), cert.
denied, --- U.S. ----,
118 S. Ct. 54, --- L.Ed.2d ---- (1997).
Additionally, the primary Title VII case that the First Circuit
relied on in Carparts was Sibley Mem. Hosp. v. Wilson,
488 F.2d
1338 (D.C.Cir.1973), a D.C. Circuit case decided before the D.C.
Circuit's decision in Spirides v. Reinhardt,
613 F.2d 826
(D.C.Cir.1979). Spirides established the economic realities/common
law control test, later adopted by this circuit, which considers
the economic realities of employment, but focuses on control as the
main factor for determining the existence of an employment
relationship under Title
VII. 613 F.2d at 831-32; see also Mares
v. Marsh,
777 F.2d 1066, 1067-68 (5th Cir.1985) (adopting First
Circuit's economic realities/common law control test). While these
cases do not rule out the possibility that a plaintiff may maintain
an action against a defendant who is not, technically, the
plaintiff's direct employer, they do establish that the focus of
any inquiry must be the element of control.
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employment relationship under Title VII focuses on control over
employee's conduct), cert. denied, 498 U.S. 1026,
111 S. Ct. 676,
112 L. Ed. 2d 668 (1991). Under our test for determining the
existence of an employment relationship in the context of a Title
VII case, "the right to control an employee's conduct is the "most
important factor.' " Id.; accord., Diggs v. Harris Hospital-
Methodist, Inc.
847 F.2d 270 (5th Cir.), cert. denied,
488 U.S.
956,
109 S. Ct. 394,
102 L. Ed. 2d 383 (1988).
Bexar County could not have discriminated against Bloom in the
manner proscribed by Title I because Bexar County did not have
control or authority over "job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, [or] other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112. As the federal district court
noted below, state judges are elected officials of the State of
Texas and are not agents, officials, or employees of the county.
TEX. CONST. art. V, § 7. No county official has the authority to
overrule the district judges with regard to the hiring, firing, or
assignment of official court reporters in the state judicial
system. See Rheuark, 628 F.2d at 301-02 (noting that county
commissioners lack authority to require district judges to obtain
advance clearance before hiring additional court reporters). While
Bexar County may perform the ministerial task of paying the
salaries of court reporters, it does so under the direction of
state law. TEX. GOV'T CODE ANN. §§ 52.041, 52.054-52.057; see also
Rheuark, 628 F.2d at 306 n. 16 ("The payment of court reporters'
7
salaries is a ministerial function...."). Additionally, the
relevant district judge, and not the county, determines the amount
of a court reporter's salary. TEX. GOV'T CODE ANN. §§ 52.041, 52.044,
52.051; see also Rheuark, 628 F.2d at 306 (noting that district
judges have "absolute authority to ... compel the county to pay
[court reporters'] salaries and fees.").
These same factors would preclude finding an employment
relationship in the context of a Title VII employment
discrimination claim. In the Fifth Circuit, we determine the
existence of an employment relationship for Title VII purposes
using the hybrid economic realities/common law control test.
Fields, 906 F.2d at 1019;
Diggs, 847 F.2d at 272. Although other
factors are relevant,3 the most important factor is "the extent of
the employer's right to control the "means and manner' of the
3
Although focusing mainly on the element of control, Spirides
also considered several factors related to the "economic realities"
of employment, including:
(1) the kind of occupation, with reference to whether the
work usually is done under the direction of a supervisor
or is done by a specialist without supervision; (2) the
skill required in the particular occupation; (3) whether
the "employer" or the individual in question furnishes
the equipment used and the place of work; (4) the length
of time during which the individual has worked; (5) the
method of payment, whether by time or by the job; (6)
the manner in which the work relationship is terminated,
i.e., by one or both parties, with or without notice and
explanation; (7) whether annual leave is afforded; (8)
whether the work is an integral part of the business of
the "employer"; (9) whether the worker accumulates
retirement benefits; (10) whether the "employer" pays
social security taxes; and (11) the intention of the
parties.
Spirides, 613 F.2d at 832.
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worker's performance....' " Mares v. Marsh, 777 F.2d 1066, 1067
(5th Cir.1985) (quoting Spirides v. Reinhardt,
613 F.2d 826, 831
(D.C.Cir.1979)). Bexar County had no right to control the means
and manner of Bloom's performance because the Texas legislature
vested that right exclusively in the state district court.
Furthermore, none of the "economic reality" factors weigh strongly
in Bloom's favor, therefore, no employment relationship existed.
Accordingly, the federal district court correctly granted summary
judgment as to Bloom's Title I claims.
2. Bloom's Claims Under ADA Title III
Regardless of whether Bloom was disabled, the district court
correctly granted summary judgment on Bloom's ADA Title III claims
because ADA Title III expressly does not apply to public entities,
including local governments. ADA Title III makes it unlawful for
"public accommodations" and private entities that provide public
transportation to discriminate against individuals with
disabilities in the provision of "goods, services, facilities,
privileges, advantages, or accommodations." 42 U.S.C. § 12182(a).
Title III defines "public accommodations" as certain "private
entities," and includes a list of the types of private entities
included within that definition, such as places of lodging, food
and drink establishments, places of exhibition or entertainment,
sales or rental establishments, service establishments, and others.
42 U.S.C. § 12181(7). Section 12181(6) qualifies this definition
by defining the term "private entity" as "any entity other than a
public entity (as defined in [ADA Title II] )." 42 U.S.C. §
9
12181(6). The definition of "public entity" in ADA Title II
includes "any State or local government." 42 U.S.C. § 12131(1)(A).
Accordingly, the structure and language of ADA Title III expressly
precludes Bloom's claims against Bexar County under that title.
Several recent holdings support the inapplicability of ADA
Title III to public entities such as Bexar County. In Sandison v.
Michigan High Sch. Athletic Ass'n, 64 F.3d 1026 (6th Cir.1995), the
Sixth Circuit held that "[p]ublic school grounds and public parks
are of course operated by public entities, and thus cannot
constitute public accommodations under title
III." 64 F.3d at 1036.
In reaching this conclusion, the Sixth Circuit relied on the
statutory exclusion of public entities from the definition of
private entities, as well as Department of Justice regulations
defining "place of public accommodation" as " "a facility, operated
by a private entity, whose operations affect commerce and fall
within at least one of the following categories'...."
Id. (quoting
28 C.F.R. § 36.104). More recently, in the context of a claim that
a public school district's refusal to administer a prescription
drug to a student, the Eighth Circuit held that "[e]ntities subject
to Title III include private schools, but not public ones." DeBord
v. Board of Educ.,
126 F.3d 1102, 1106 (8th Cir.1997). In so
holding, the Eighth Circuit noted "Title III of the ADA applies to
private entities providing public accommodations[,] not to public
entities." Id.; accord., e.g., Rhodes v. Ohio High Sch. Athletic
Ass'n,
939 F. Supp. 584, 591 (N.D.Ohio 1996) ("[The] definitions [in
42 U.S.C. §§ 12181(6)-(7) ] have been understood to mean that a
10
place of public accommodation must be operated by a private
entity."); Kessler Inst. for Rehabilitation, Inc. v. Mayor and
Council of Essex Fells, 876 F. Supp. 641, 652 (D.N.J.1995)
("Municipalities, as well as municipal departments,
instrumentalities, and agencies, are specifically excluded from the
definition of "private entities' subject to [Title] III.");
Crowder v. Kitagawa, 842 F. Supp. 1257, 1267 (D.Haw.1994) ("The
definition of "private entity' in 42 U.S.C. § 12181(6) specifically
excludes any public entity such as the State of Hawaii.
Accordingly, neither Title III of the ADA nor its regulations
concerning service animals apply to the Hawaii quarantine
system."), rev'd on other grounds, 81 F.3d 1480 (9th Cir.1996)
(reversing based on analysis of ADA Title II, rather than ADA Title
III).
B. Bloom's Motion for Leave to Amend
This Court reviews a denial of leave to amend under an abuse
of discretion standard. Halbert v. City of Sherman, 33 F.3d 526,
529 (5th Cir.1994). The Federal Rules of Civil Procedure provide
that "leave to amend shall be freely given when justice so
requires." FED. R. CIV. P. 15(a). Although the district court
should liberally allow amendments, leave to amend is not automatic.
Id. The decision to grant or deny leave is within the sound
discretion of the district court.
Id.
The district court did not abuse its discretion in denying
Bloom's motion for leave to amend. The court found that Bloom's
motion merely sought to allege additional sources of her allergic
11
reaction that Bexar County allegedly was or should have been aware
of. The court denied Bloom's motion on the same day that it
granted summary judgment to Bexar County, and found that the
proposed amendment did not state additional claims or cure the
defects in Bloom's claims. We have already held that the district
court properly granted summary judgment against Bloom on her ADA
claims. The allegations in Bloom's proposed amendment would not
change our analysis regarding summary judgment; therefore, we hold
that the district court did not abuse its discretion in denying
leave to amend.
Conclusion
Viewing the evidence in the light most favorable to Bloom, the
non-movant, we find that the district court properly granted
summary judgment on Bloom's ADA claims. Bexar County's lack of
control over state district court reporters precludes liability
under ADA Title I because Bexar County was not Bloom's employer and
because Bexar County could not have discriminated against Bloom in
the manner proscribed by ADA Title I. ADA Title III does not apply
to public entities; therefore, Bexar County cannot be held liable
for Bloom's ADA Title III claims. Furthermore, the district court
did not abuse its discretion in denying Bloom's motion for leave to
amend. Accordingly, we AFFIRM the district court's summary
judgment.
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