Halperin v. Abacus Technology Corp., 128 F.3d
191 (4th Cir. September 18, 1997)
(disability; otherwise qualified individual) and ADEA (insufficient evidence of pretext
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
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.
To establish a prima facie case under the ADA, Halperin must
he has a disability;
he is otherwise qualified for the job in question; and
he was discharged solely because of his disability.
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.
If Halperin could not return for five months, then he was not otherwise
qualified for the job in question.
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.
In either event, the district court properly held that Halperin failed
to establish a prima facie case under the ADA.
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).
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.
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.
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.