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Halperin v. Abacus Technology Corp., 128 F.3d 191 (4th Cir. September 18, 1997)

Keywords: ADA (disability; otherwise qualified individual) and ADEA (insufficient evidence of pretext and discrimination)

Introduction: Jay Lawrence Halperin sued his former employer, Abacus, under the ADA for disability discrimination and under the ADEA for age discrimination. The district court granted summary judgment on behalf of Abacus. The Fourth Circuit affirms.

Facts: Abacus is a research and consulting firm that derives its income from contracts with the federal government. In March of 1992, Halperin was hired by Abacus to work as a computer consultant on a contract with the General Services Administration.

On May 31, 1994, Halperin injured his lower back at work. His injury was diagnosed as a lumbar strain and treated conservatively. Between May 31 and October 31, Halperin missed only six days from work. However, on November 3, Halperin decided to take an extended leave to recuperate.

In late December of 1994, Halperin's doctor cleared him to return to work with the restriction that he refrain from lifting more than 20 pounds. Halperin checked about coming back to work, but eventually was let go due to lack of work and because Halperin did not know when his injury would permit him to return to work.

Shortly after terminating Halperin, Abacus hired 36-year-old Galina Diggs. According to Halperin, who was by then 48 years old, Diggs performed work similar to that which Halperin had performed. Halperin contends that his qualifications were better than Diggs', but that Abacus hired her because she was younger and could be paid less.

Law:

1. To establish a prima facie case under the ADA, Halperin must prove that:

   1. he has a disability;

   2. he is otherwise qualified for the job in question; and

   3. he was discharged solely because of his disability.

2. Halperin stated in his deposition that, as of the date he was terminated, he would have been unable to work for an additional five months. However, in his sworn affidavit filed in opposition to the motion for summary judgment, Halperin testified that he was ready and willing to work on January 4, 1995.

3. If Halperin could not return for five months, then he was not otherwise qualified for the job in question.

4. If Halperin could have returned to work immediately on January 4, 1995, then he has not shown that he was a person with a disability. In addition, while his back injury is a physical impairment and while working is a major life activity, Halperin has not shown that his impairment "substantially limits" his ability to work. There is no indication that Halperin's lifting restriction significantly limits his ability to perform a wide range of jobs.

5. In either event, the district court properly held that Halperin failed to establish a prima facie case under the ADA.

6. With respect to the ADEA, Abacus concedes that Halperin set forth a prima facie case. Also, Abacus presented legitimate, nondiscriminatory reasons for the termination (i.e. absenteeism and lack of work).

7. Halperin argues that the "lack of work" reason is pretextual because Abacus hired Diggs to perform similar work. But to survive summary judgment, Halperin must have evidence from which a reasonable factfinder could conclude that Abacus engaged in intentional age discrimination.

8. Halperin argues that replacement by a younger employee raises an inference of intentional age discrimination where the employer's proffered reason is lack of work. But even if this is true, Halperin has failed to demonstrate that the other articulated reason (absenteeism) was false, much less a pretext for discrimination. Halperin argues that absenteeism was a pretext because it was not given as the reason at the time he was terminated. But Halperin's own affidavit acknowledges that at the time of his discharge, Abacus expressed the concern that Halperin did not know when his injury would permit him to return to work.

9. Therefore, the Fourth Circuit affirms the district court's grant of summary judgment on the ADA and ADEA claims. Click here to see actual case.