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MOORE v. TIME WARNER GRC 9

August 18, 1998

WALTER D. MOORE, JR., Plaintiff,
v.
TIME WARNER GRC 9, Defendant.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 This is a discrimination case. Plaintiff Walter Moore ("Moore") asserts that defendant Time-Warner, GRC 9 ("Time-Warner") terminated his employment because of his disability, race, and gender, in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Presently before me is Time-Warner's motion for summary judgment. For the reasons set forth below, the motion is granted.

 BACKGROUND

 Moore is an African-American male who claims to be suffering from diabetes and high blood pressure. He was hired by Time-Warner in February 1995 as a Home Terminal Orientation Representative. Aff't of Ann Burr (December 15, 1997) at P 2. As with all new Time-Warner employees, Moore was on probationary status for a period of ninety days. Id. During his first weeks of employment, Moore was required to undergo training to obtain the skills necessary for his new job, i.e., installing home terminals, demonstrating available features and services to customers, and recovering existing cable equipment from subscribers. Id. Moore was one of eleven new employees who began training under the supervision of Delores Banks, a manager of Human Resource Development. Moore was the only African-American male in the class. There was one African-American female and Banks herself is an African-American female. Id.

 During the first week of training Moore was absent for two days. Moore claims that he was sick with the flu and hyperglycemic reactions due to his diabetic condition, and that he called Delores Banks and Dave Barbero, one of the trainers, as well as Phil Smith, a manager, to report his condition and his concerns about being absent. Moore Responding Papers at Ex. 1.

 Moore claims that he missed additional training time as the result of a visit to the emergency room on March 6th. Id. Emergency room records from this visit indicate that he was suffering from "hyperglycemia, high blood pressure, and constipation." Moore Responding Papers at Ex. 2. Moore claims to have informed Banks and Barbero of his circumstances, and that Banks assured him that she would pass along the information to Phil Smith.

 Two separate make-up sessions were scheduled so that Moore could recover up the lost training time. These one-on-one classes were scheduled for 6:30 and 7:00 am, but Moore failed to attend either and, according to Time-Warner, provided no excuse for those absences. Burr Aff't. at P 7. Moore maintains that he missed the make-ups due to inclement weather and car trouble. Moore Responding Papers at Ex. 1. Daily newspaper weather forecasts indicate that on one day, snow showers were likely with a high of 25 degrees, and that the other day called for a mix of snow, sleet and freezing rain and a high of 40 degrees. Moore Responding Papers at Ex. 4.

 On or around March 9th, Phil Smith spoke with Moore about the missed appointments and reminded him that meeting scheduled appointments was paramount to the position of Home Terminal Distributor because "our customers do expect us to be on time." Burr Aff't at Ex. D. (Memo from P. Smith dated June 13, 1995). Moore allegedly offered no explanation. Id. On that same day, Smith observed Moore in a training session and found that he was "very rambling and unfocused with his questions and his comments." Id. Other members of Moore's training group allegedly told Smith that Moore was falling behind in training and that some of them were working with Moore at lunch breaks to bring him up to speed with the rest of the group. Id.

 Also on March 9th, Smith claims to have received from Banks a written evaluation of Moore's training progress. The evaluation evidently included a recommendation that Moore be terminated due to his lack of concentration during training. Id.

 Finally, Smith spoke with another trainer, Nessa Wallace, about Moore's training progress. Wallace allegedly reported to Smith that she was concerned about Moore because of his "wandering conversations and lack of concentration." Id.

 Based upon what Smith learned about Moore from his own observations and from others, he decided that Moore was not going to be able to "perform effectively with customer contact sales presentations" and that Moore should be terminated. Id.

 The following Monday, Smith told Moore that his employment was terminated because of his "inability to concentrate on the information being presented as part of the training." *fn1" Id. According to Moore, Smith also told him that he did not have the technical skills to perform the job and that he (Smith) was unaware of Moore's diabetes and hypertension. Moore Responding Papers at Ex. 1. Moore told Smith that he believed he was being discriminated against based upon his race. Id. Indeed, Moore claims that throughout his time in the training program racial animosity was pervasive toward both Delores Banks (who apparently had accused someone in the class of stealing some money) and himself. Id.

 Moore filed an administrative charge with the EEOC describing disability and race discrimination on November 8, 1995, and received a Right to Sue letter dated January 31, 1996. This suit was filed on April 29, 1996.

 DISCUSSION

 Time-Warner now moves for summary judgment. Time-Warner asserts that Moore's complaint should be dismissed in its entirety because Moore cannot show even a prima facie case of disability discrimination under the ADA, and that there is no evidence ...


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