Summary
In Armour, the district court denied defendant's motion for summary judgment, holding that certain statements made by the company's president demonstrated that the plaintiff's employer perceived him as being unable to perform a broad range of jobs even without evidence of the actual number of jobs in the relevant geographical area.
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Cause No. IP99-0898-C-T/G
March 16, 2000
ENTRY DISCUSSING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
A separate Motion for Summary Judgment has been filed by each Defendant in this case brought pursuant to the Americans with Disabilities Act ("ADA"), codified at 42 U.S.C. § 12101-213. Defendant Laborers' International Union of North America, Local No. 741 ("Union") argues that Plaintiff, Christopher J. Armour, has no evidence that the Union's conduct towards Mr. Armour violated the ADA (i.e., whether the Union breached its duty of fair representation and that this breach was motivated by discriminatory animus).
Both Defendants argue that Mr. Armour is not a "qualified individual with a disability," and thus is not entitled to the protections of the ADA.
II. Facts
Mr. Armour alleges that on November 23, 1997, he sustained a herniated disc while working as "sideman on a saw crew" (also known as "sideman/sawyer") at Defendant, Independent Limestone Company ("Independent Limestone"). He nonetheless continued to work at Independent Limestone until June 4, 1998, when his back condition, which had worsened, temporarily disabled him.
Mr. Armour remained disabled and off work until October 26, 1998, when his physician, Dr. Schooler, released him from her care, stating that Mr. Armour "has reached maximum medical improvement . . . and has excellent lifting capabilities but cannot tolerate anything more than frequent forward bending at the waist . . . [and] has a permanent work restriction of no extreme overhead lifting and the rare lifting would be 75 lbs., occasional 65 lbs. overhead, frequent 55 lbs. over head and constant 25-35 lbs. overhead lifting." (Pl.'s Ex. 3.) Dr. Schooler concluded that Mr. Armour has a "permanent impairment of the whole person of 5%." (Id.)
On October 26, 1998, when Mr. Armour went back to Independent Limestone to resume work, he felt that he was fully capable of resuming the duties of his "sideman/sawyer" job without any accommodation. (Armour Dep. at 18, 24-25, 45.) He also testified that he is not currently restricted in any physical activities. (Id. at 28.) He now works for another limestone mining company.
When Mr. Armour asked to return to work and presented Dr. Schooler's report, Independent Limestone terminated his employment. On October 26, 1998, the President of Independent Limestone, John M. Holmes, sent the Union representative, Roger Kent, a letter stating, "As we discussed today, Christopher J. Armour . . . has been permanently restricted to `light' work per a doctor's statement. There are no positions available for `light' work at this quarry. As a consequence, his employment has been eliminated." (Pl.'s Ex. 4.)
Mr. Armour asked Mr. Kent to file a grievance on his behalf, but Mr. Kent told Mr. Armour that there were no grounds for filing a grievance.
III. Discussion
There are two issues raised by Defendants' summary judgment motions: (1) whether the Union's conduct towards Mr. Armour violated the ADA (i.e., whether the Union breached its duty of fair representation and that this breach was motivated by discriminatory animus); and, (2) whether Mr. Armour is a "qualified individual with a disability."
A. Union's Conduct
The Union argues that summary judgment is appropriate because Mr. Armour cannot show that the Union's conduct towards Mr. Armour violated the ADA.
In setting forth the law in this area, both the Union and the Mr. Armour make an analogy to Title VII. The court will also rely upon this analogy. See Nweke v. Prudential Ins. Co. of Am., 25 F. Supp.2d 203, 220-21 (S.D.N.Y. 1998) (employing the Seventh Circuit Title VII analysis stated below to analyze claims brought against a union under the ADA). Establishing a prima facie Title VII claim against a union based on a breach of a duty of fair representation requires a plaintiff to show that: (1) the employer violated the collective bargaining agreement with respect to the plaintiff; (2) the union permitted the breach to go unrepaired, thus breaching its own duty of fair representation; and, (3) there was some indication that the union's actions were motivated by discriminatory animus. See Greenslade v. Chicago Sun-Times Inc., 112 F.3d 853, 866 (7th Cir. 1997); Babrocky v. Jewel Food Co., 773 F.2d 857, 868 (7th Cir. 1985). A union's refusal to handle a grievance on the basis of discriminatory animus violates the duty of fair representation. See Greenslade, 112 F.3d at 867; Martin v. Youngstown Sheet Tube Co., 911 F.2d 1239, 1248 (7th Cir. 1990). Also, a union may be liable for not protesting vigorously enough an employer's discriminatory practices. See Babrocky, 773 F.2d at 868-69. In Greenslade, the dismissal of the plaintiff's Title VII claim (predicated on a breach of a duty to represent) was upheld because the plaintiff failed to produce evidence that the union had a gender-tainted motivation. The court noted, as an example, that there was no evidence presented that the union had treated the plaintiff (who was male) differently than similarly-situated females. See 112 F.3d at 867.
Likewise, in this case, it does not appear that Mr. Armour has come forward with evidence that the Union was motivated by a disability-based animus.
Mr. Armour contends that such an animus can be inferred from the following facts: —
Mr. Kent told Mr. Armour that there was nothing Mr. Armour could do about being fired. (Armour Dep. at 45-46, 57-58, 86.) —
Mr. Kent knew that Mr. Holmes considered Mr. Armour to be restricted to "light" work. (Pl.'s Ex. 4.) —
Mr. Armour told Mr. Kent that he was classified by his doctor (based on a functional capacity assessment) in the "heavy worker category." (Armour Dep. at 45.) —
Mr. Kent did not show Plaintiff's Exhibit 4 (the letter from Mr. Holmes to Mr. Kent) to Mr. Armour, and did not discuss the letter's contents with Mr. Armour. (Armour Aff. ¶ 23.) —
Mr. Kent did not process Mr. Armour's dispute of his discharge through the formal process set forth in the collective bargaining agreement; instead, Mr. Kent just told Mr. Armour there was nothing he could do about it.
All of this evidence may succeed in showing that the Union breached its duty of fair representation toward Mr. Armour, see, e.g., Vaca v. Sipes, 386 U.S. 171, 191 (1967) ("[A] union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion. . . ."), but it does not show that the Union's action (or inaction) was motivated by a disability-based animus. For example, as in Greenslade, Mr. Armour has not shown that the Union treated Mr. Armour differently than similarly-situated employees that the Union did not perceive to be disabled. See 112 F.3d at 867; see also Nweke v. Prudential Ins. Co. of Am., 25 F. Supp.2d 203, 223-24 (S.D.N.Y. 1998) (granting summary judgment because: plaintiff "submitted no statistical data concerning the Unions' handling of grievances from which it could be inferred that the Unions have breached their duty of fair representation in a discriminatory manner"; plaintiff "also has not included evidence of discriminatory comments, innuendo, or stereotyping on the Unions' behalf"; and, "there is no probative evidence that the Unions exhibited hostility toward [plaintiff] based on her . . . alleged disability"). In other words, even if Mr. Armour has presented an issue of fact as to whether the Union breached its duty of fair representation, Mr. Armour has not presented evidence indicating that the motivation behind the Union's breach was disability-based discrimination. Therefore, the Union's Motion for Summary Judgment will be GRANTED.
B. "Qualified Individual with a Disability"
Because the ADA only covers qualified individuals with disabilities, the burden rests with Mr. Armour to prove that he is "disabled" within the meaning of the statute. See Schneiker v. Fortis Ins. Co., 200 F.3d 1055, ___, 2000 WL 10251, at *4 (7th Cir. Jan. 6, 2000). Under the ADA, an individual is "disabled" if he (1) has "a physical or mental impairment that substantially limits one or more . . . major life activities"; (2) has "a record of such an impairment"; or (3) is "regarded as having such an impairment." See id. (quoting 42 U.S.C. § 12102(2)). The determination as to whether an individual is a "qualified individual with a disability" must be made as of the time of the employment decision. See Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998).
Defendants do not contest that Mr. Armour is "qualified" within the meaning of the ADA.
"To be `substantially limited' means that the individual is either unable to perform, or significantly restricted as to the condition, manner or duration under which the individual can perform, a major life activity as compared to an average person in the general population." Krocka v. City of Chicago, ___ F.3d ___, 2000 WL 137441, at *3 (7th Cir. Feb. 8, 2000) (citations omitted). Here, the only possible limitation at issue is a limitation in Mr. Armour's ability to perform the major life activity of working. "In order to show a substantial limitation on his ability to work, an individual must demonstrate that his impairment significantly restricts `the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'" Id. at *4 (quoting 29 C.F.R. § 1630.2(j)(3)(i)).
1. Actual Disability
Defendants focus their arguments on whether Mr. Armour cannot meet the first of the three above-stated definitions of "disabled" (i.e. that he was actually substantially limited in the life activity of working). Defendants point out that on October 26, 1998, Dr. Schooler, as well as Mr. Armour himself, believed that he could perform "heavy duty work." (Armour Dep. at 45.) Based on this, Defendants argue that Mr. Armour was not, in fact, significantly restricted in his ability to perform a class of jobs.
Mr. Armour counters by pointing to Dr. Schooler's report (Pl.'s Ex. 3), and stating his two limitations (no continuous forward bending and no continuous heavy overhead lifting).
However, this letter alone does not appear to be enough to create an issue of fact as to whether he had a physical impairment that "significantly restricts `the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'" Mr. Armour has failed to demonstrate that his two limitations limit him from any job, let alone "a class of jobs or a broad range of jobs in various classes." Some limitations may be limiting enough that the court could simply infer that a plaintiff is restricted from "a class of jobs or a broad range of jobs in various classes", but Mr. Armour's actual limitations do not appear to be nearly that severe.
2. "Regarded As" Disabled
Mr. Armour also argues that he was disabled under the "regarded as" prong of the ADA's "disability" definition. See 42 U.S.C. § 12102 (2)(C).
Defendants argue that Mr. Armour failed to allege in his Complaint that he fit within the "regarded as" prong of the ADA's "disability" definition. However, Mr. Armour alleged that he "is able to perform the duties of a Sideman/Sawyer without an accommodation" but the "[e]mployer refused and continue[s] to refuse to return Plaintiff to work" in violation of the ADA. (Compl. ¶¶ 7-8.) This adequately stated the facts of Mr. Armour's claim that he was "regarded as" disabled by Independent Limestone despite actually being able to perform the functions of his old job. No more was necessary under the liberal notice pleading standard of the Federal Rules of Civil Procedure. See, e.g, Conley v. Gibson, 355 U.S. 41, 47 (1957).
The `regarded as' prong . . . is intended to provide a remedy for discrimination based on misperceptions about the abilities of impaired persons. . . . Many . . . impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic.
Krocka, 2000 WL 137441, at *4 (quotation omitted). In order to make out a claim under the "regarded as" prong, "it is necessary that a covered entity entertain misperceptions about the individual. These misperceptions may take the form of believing either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment, when, in fact, the impairment is not so limiting." Id. at *5 (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2150 (1999)). As noted above, to be "substantial", a limitation on the ability to work must be one that affects a plaintiff's ability to perform a class or broad range of jobs before it qualifies as a disabling limitation under the ADA. See Krocka, ___ F.3d ___, 2000 WL 137441, at *4 (citation omitted). "For purposes of [the `regarded as' prong], the employer's perception of the plaintiff's inability to work must have a comparable breadth [as the "substantial" requirement for the actual disability prong]." Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998) (citation omitted).
In this case, there is evidence that Independent Limestone suffered under the misperception that Mr. Armour had "a substantially limiting impairment, when, in fact, the impairment [was] not so limiting" — i.e., the letter from the President of Independent Limestone, John Holmes, indicating his belief that Mr. Armour had been restricted to "`light' work". (Pl.'s Ex. 4.) Although there can be different definitions of "light" work (perhaps included within Mr. Holmes' definition of "light" work is a job requiring the overhead lifting of 75 pounds), a reasonable jury could find that Mr. Holmes misperceived Mr. Armour's physical impairments to be much more severe than they actually were. A reasonable jury could also find that Mr. Holmes misperceived that Mr. Armour's impairment prevented him from performing "a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities" — i.e., all of the jobs falling in categories above "light" work (such as "heavy" work and any other intermediate categories that may exist).
On reply, Mr. Holmes submits an affidavit stating:
I used the word `light' simply to mean that there were no positions available in the quarry at that time which did not require a worker to do those things which Mr. Armour was restricted from doing. . . . My use of the word `light' in my letter was in no way intended to convey the meaning that I or Independent Limestone Company perceived or regarded Mr. Armour as being disabled under the Americans with Disabilities Act.
(Holmes Aff. ¶¶ 6-7.) A reasonable jury could believe Mr. Holmes' explanation. But a reasonable jury could also find that this is simply revisionist history and come to a different conclusion about what Mr. Holmes meant by the use of the word "light".
Independent Limestone argues that because Mr. Armour has not provided evidence of the actual number of jobs in the relevant geographical area that Mr. Holmes perceived Mr. Armour as being unable to perform, summary judgment should be granted in its favor. In support of this proposition, Independent Limestone relies upon E.E.O.C. v. Rockwell Int'l Corp., 60 F. Supp.2d 791 (N.D.Ill. 1999), which holds that when the employer perceived the plaintiff as having the inability to work in jobs at its plant that involve "continuing repetitive motions and/or vibratory power tools", additional evidence was necessary to show that this perception translated into a belief that the plaintiff was unable to perform a class or broad range of jobs. See id. at 798-99. In Mr. Armour's case, however, the employer was not nearly so limited in its perception of Mr. Armour's disability. He made a sweeping statement limiting Mr. Armour to only a single class of jobs (i.e., "light work") and excluding him from all other classes. The Seventh Circuit has stated that the requirement of establishing that a plaintiff is unable to perform a class or broad range of jobs "is not an onerous requirement, but it does require at least some evidence from which one might infer that [plaintiff] faced `significant restrictions' in her ability to meet the requirements of other jobs." Skorup, 153 F.3d 515 (quotation omitted). Here, because Mr. Holmes took it upon himself to act as a lay vocational expert and state Mr. Armour's limitations in the terms of a class of jobs, this is enough evidence from which a jury could infer that Mr. Holmes perceived Mr. Armour to be unable to perform all classes of jobs above the "light" category.
The "Interpretive Guidance" accompanying 29 C.F.R. § 1630.2(j) (the regulation defining "substantially limits") states:
An individual is substantially limited in working if the individual is significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes,. . . . For example, an individual who has a back condition that prevents the individual from performing any heavy labor job would be substantially limited in the major life activity of working. . . . This would be so even if the individual were able to perform jobs in another class.
Here, Mr. Holmes indicated that he perceived Mr. Armour to be limited of only "light" work, which by implication, excludes Mr. Armour (at least in Mr. Holmes' perception) from all "heavy" work. As indicated by the "Interpretive Guidance" accompanying 29 C.F.R. § 1630.2(j), such a limitation is enough — without further evidence — to make an individual "substantially limited in the major life activity of working." See also Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996) (holding that an issue of fact existed as to whether plaintiff's impairment substantially limited his ability to work, without relying upon evidence of the requirements or availability of jobs which plaintiff would be unable to perform in the geographic region) (citing the "Interpretive Guidance" accompanying 29 C.F.R. § 1630.2(j)). The court finds that Mr. Armour has demonstrated an issue of fact as to whether Independent Limestone regarded him as having an impairment that would substantially limit him in the major life activity of working. Therefore, Independent Limestone's Motion for Summary Judgment is DENIED.
While Mr. Holmes' letter may be enough to create an issue of fact as to whether Independent Limestone regarded Mr. Armour as disabled, it does not show how the Union regarded Mr. Armour. Although the letter is written to Mr. Kent, the Union representative, and it indicates that Mr. Holmes and Mr. Kent had discussed the matter earlier that day, it does not indicate that Mr. Kent in any way agreed with Mr. Holmes' characterization of Mr. Armour's impairments. Mr. Armour offers no other evidence concerning the Union's perception of his impairments, and therefore, fails to create a genuine issue of fact as to whether the Union regarded him as disabled. For this independent reason, the Union's Motion for Summary Judgment will be GRANTED.
IV. Conclusion
Mr. Armour has not presented evidence indicating that the motivation behind the Union's alleged breach of its duty of fair representation was disability-based discrimination. Mr. Armour has also failed to present sufficient evidence indicating that he was actually "disabled" or was regarded by the Union as "disabled" within the meaning of the ADA. Therefore, the Union's summary judgment motion will be GRANTED.
Mr. Armour has demonstrated an issue of fact as to whether Independent Limestone regarded him as "disabled" within the meaning of the ADA. Therefore, Independent Limestone's Motion for Summary Judgment is DENIED.
Thus, all of Mr. Armour's claims against the Union are terminated by this Entry.
There is no just reason for delay entering judgment as to those claims, and that will be done pursuant to Federal Rule Civil Procedure 54(b).
Mr. Armour's claims against Independent Limestone remain, and no final judgment will be entered at this time.
ALL OF WHICH IS ORDERED.