Opinion
Case No. 5:02-CV-60
May 30, 2003
J. Michael O'Briant, for Plaintiff(s).
S. Randall Field, for Defendant(s).
OPINION
Plaintiff, Janice G. Falor ("Falor"), has sued her former employer, Livingston County Community Mental Health ("LCCMH"), alleging that LCCMH failed to accommodate Falor's alleged disability as required by the Americans With Disabilities Act, ("ADA"), 42 U.S.C. § 12101 to 12213. Now before the Court is LCCMH's motion for summary judgment, in which LCCMH asserts that it is entitled to judgment as a matter of law on the grounds that: (1) Falor is not disabled under the ADA; and (2) even if Falor suffers from a disability, Falor cannot show that LCCMH did not reasonably accommodate her disability. For the reasons set forth below, the Court will grant LCCMH's motion.
Falor filed her pro se complaint on April 15, 2002, alleging only that LCCMH failed to provide a reasonable accommodation for her disability. After Falor retained an attorney, the Court granted Falor's motion to file an amended complaint, in which Falor asserted claims for harassment and termination of her employment based upon her disability. The harassment and termination claims have since been dismissed pursuant to stipulation of the parties.
I. Facts
Falor was hired by LCCMH in approximately January 1999 on a temporary, part-time basis as a mental health assistant. (Falor Aff. ¶ 2, attached to Pl.'s Br. Resp. Def's Mot.) Falor was responsible for supplying various services to LCCMH's special needs clients. (Id.; Falor Dep. at 36-37, attached to Def.'s Br. Supp.) When she first began her employment, Falor did not advise LCCMH of any physical limitations that would prevent her from performing the essential functions of her position. (Falor Dep. at 35.) Shortly after she began her employment, however, Falor hurt her back in the course of lifting an adult client. (Id. at 39-40.) Falor informed her supervisor, Deb Calandrino ("Calandrino"), that she had injured her back and would not be able to take the job because of the lifting requirements. (Id. at 40-41.) Calandrino told Falor that Falor did not need to resign because there was plenty of work for Falor to do that did not involve lifting. (Id. at 41.) Falor decided to continue her employment with LCCMH.
Although not relevant to the issues presented to the Court, Falor was hired in a full-time position after she filed a claim of discrimination with the Michigan Department of Civil Rights alleging that LCCMH discriminated against Falor based upon her disability of fibromyalgia in failing to hire Falor for a full-time position.
Falor generally worked the evening or the midnight shift. (Christopherson Dep. at 21, attached to Pl.'s Resp. Br.) One of Falor's primary duties during that shift was working in the monitor room. The monitor room was equipped with audio connections to the clients' apartments which enabled LCCMH workers to monitor the clients, many of whom were developmentally disabled, for their safety. (Id. at 54-55.) The audio link enabled the workers to address a serious emergency, such as choking or coughing, to assist the clients with routine functions, such as turning off the television or turning down the heat, or simply to reassure the clients that someone was there. (Id.) Because attentive monitoring could be the difference between life and death for a client, it was important for the workers in the monitor room to be alert at all times. (Id. at 56-57) Thus, it would be inappropriate for a worker to sleep in the monitor room when no other workers were present. (Id. at 57.)
During a meeting in 2001, Calandrino and Kim Christopherson, the program coordinator, informed Falor that someone had reported that Falor was sleeping on the job in the monitor room. (Id. at 44-45.) Falor denied that she was sleeping. (Id. at 44.) Falor explained that she was lying down on cushions she had taken from the couch in the lunch room. (Id. at 44-45.) Falor said that she needed to lie down periodically throughout the night to rest her back muscles, because sitting in the regular office chairs in the monitor room aggravated her fibromyalgia. (Id. at 45.)
On or about June 4, 2001, Falor submitted to LCCMH a prescription from Sparrow Family Medical Services requesting an ergonomic evaluation of Falor's work site and chair due to a diagnosis of fibromyalgia. (6/4/01 Prescription Form, Pl.'s Resp. Br. Ex. 3.) On June 19, and again on June 20, Jan Marvin ("Marvin"), the executive director of LCCMH, sent a memorandum to Falor indicating that LCCMH had received the June 4, 2001, prescription. Marvin advised Falor of the need for a complete medical report from Falor's doctor regarding Falor's condition and the effect of the fibromyalgia on Falor's performance of her job duties. (Mem. from Marvin to Falor of 6/19/01, Pl.'s Resp. Br. Ex. 4; Mem. from Marvin to Falor of 6/20/01, Pl.'s Resp. Br. Ex. 5.) In her June 20 memorandum, Marvin wrote:
As you mentioned, we will probably be scheduling an evaluation, but we first need to know the medical facts on your condition. We will then be using that along with a complete description of your job duties, which will come from your supervisor, to ascertain how we might accommodate your requests.
(Mem. from Marvin to Falor of 6/20/01.) Because of some confusion, Falor's doctor, Dr. Harvey, did not provide a report to LCCMH until October 2, 2001. In his report, Dr. Harvey stated:
[Falor's] primary fibromyalgia complaint with regards to her work is a severe intensification of her muscle and body pain after working a 3 day shift listening to audio monitoring of clients. She states that at the end of 3 days, she can be very sore, and it will usually take 3-4 days to recover from this pain. She believes that the primary aggravating factor is sitting in a rigid chair for prolonged lengths of time. She believes that a soft, padded chair capable of variable positioning would be of great benefit. It would allow her to change positions frequently. She describes a suitable chair as a "lazy boy type recliner", as opposed to the more traditional secretary/office type chair.
Her fibromyalgia causes intense pain in various parts of the body, including neck, shoulders, back, hips, arms and legs. Sitting for prolonged periods of time, or rigid furniture can aggravate fibromyalgia. The type of chair she describes does seem to be well-suited for her illness.
(Letter from Harvey to Marvin of 10/2/01, Pl.'s Resp. Br. Ex. 6.)
By the time LCCMH received Dr. Harvey's letter, LCCMH had purchased two padded, high-back supportive chairs. On October 31, 2001, Marvin wrote to Falor, stating:
It is unclear whether the chairs LCCMH purchased could recline or be adjusted into multiple positions. Although LCCMH told Falor that the chairs did not recline, Falor stated in her deposition that the chairs did recline, but were spring-loaded, which required her to hold herself back in a reclining position. (Falor Dep. at 80). In addition, Falor testified that before the chairs arrived at LCCMH, an LCCMH employee told Falor that the chairs could be repositioned into sixteen different positions. (Id. at 71.) However, there is no evidence in the record showing whether the chairs could, in fact, be adjusted to different positions.
In response to your request, a new ergonomically designed work chair was provided to you in July, 2001, which was padded and provided both lower back and head support. While it does not recline, you are free and encouraged to change your position by standing and moving about rather than remaining in a fixed position while seated for your entire work shift. Indeed, a review of your job description provided by your supervisor allows that many of your duties involve moving about the office.
Apparently, you do not believe this accommodation has been adequate. I request that you identify, in writing, the reasons this new chair is not adequate. I look forward to your response.
(Letter from Marvin to Falor of 10/31/01, Pl.'s Resp. Br. Ex. 7.) Marvin also wrote another letter to Falor that same day, in which Marvin acknowledged Falor's request for a reclining chair and enclosed a letter for Falor to give to Dr. Harvey requesting additional information needed to evaluate Falor's request. (Letter from Marvin to Falor of 10/31/01, Pl.'s Resp. Br. Ex. 8.) Dr. Harvey did not provide a report to LCCMH until March 13, 2002, after Falor had been terminated for sleeping on the job. (Report of Investigative Findings, Def.'s Br. Supp. Ex. D.)
Following her termination, Falor filed a charge of discrimination with the Michigan Department of Civil Rights, in which Falor alleged that LCCMH denied her a reasonable accommodation. Falor filed her complaint in this action after the Department of Civil Rights determined that there was no violation.
II. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
III. Discussion
In order to recover on her claim of failure to accommodate, Falor must show that she is disabled under the ADA. Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997). The ADA defines a "qualified individual with a disability" as
an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this title, consideration shall be given to the employer's judgment as to what functions of a job are essential. . . .42 U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(m) (defining "qualified individual" as "individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position . . . and who, with or without reasonable accommodation, can perform the essential functions of such position"). The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). "Major life activities" include "functions such as caring for oneself, performing manul tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). An impairment "substantially limits" a major life activity if the plaintiff is "[u]nable to perform a major life activity that the average person in the general population can perform," or the plaintiff is "significantly restricted as to the condition, manner or duration under which [he or she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630(j)(1). Factors to be considered in determining whether a plaintiff is substantially limited in a major life activity are: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact of the impairment. 29 C.F.R. § 1630(j)(2).
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681 (2002), the Supreme Court held "that to be substantially limited in [a major life activity], an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long term." Id. at 198, 122 S.Ct. at 691. The Court also held that a substantial limitation must apply to "the variety of tasks central to most people's daily lives," not merely to a sub-class of that activity. Id. at 200, 122 S.Ct. at 692-93. In addition, the Court observed that a medical diagnosis, alone, is insufficient to demonstrate that an individual has a disability within the meaning of the ADA where the impairment is one whose symptoms vary widely between individuals. Id. at 199, 122 S.Ct. 692.
Falor contends that she has a physical impairment of fibromyalgia. LCCMH does not dispute that fibromyalgia constitutes a physical impairment, and the Court finds no reason to conclude that fibromyalgia is not a physical impairment. Falor contends that her fibromyalgia substantially limits the major life activity of sitting. Although not specifically identified as such in the Equal Employment Opportunity Commission's regulations, the Court concludes that sitting is a major life activity. Mahon v. Crowell, 295 F.3d 585, 591 (6th Cir. 2002); Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495-96 (10th Cir. 2000).
The only medical evidence in the record regarding the extent of Falor's impairment is Dr. Harvey's statements in his October 2, 2001, letter and his March 13, 2002, report. In his October 2, 2001, letter, Dr. Harvey states that the "primary aggravating factor" in the pain Falor suffered after working a three-day shift is "sitting in a rigid chair for prolonged lengths of time." Dr. Harvey further stated that "[s]itting for periods of time, or (sic) rigid furniture can aggravate fibromyalgia." In his March 13, 2002, report, Dr. Harvey stated that fibromyalgia can affect all aspects of Falor's life, including driving, shopping, self-care, and recreational activities, and can cause chronic ache, chronic pain, decreased exercise tolerance, and difficulty in moving, bending, and twisting. Dr. Harvey also noted that the work activity which presented the most difficulty for Falor was sitting and watching the monitors and that a La-Z-Boy-type recliner could be helpful. In her affidavit, Falor states: "I suffer excruciating pain if I sit in a chair that does not recline due to my disability of fiber myalgia (sic). The inability to sit without reclining significantly affects my daily life." (Falor Aff. ¶ 9.)
The Court concludes that Falor has failed to establish that she has a disability under the ADA, because the evidence does not show that the effects of Falor's fibromyalgia are of a nature or level of severity that imposes significant restrictions on Falor when compared to the average person in the general population. With regard to this issue, Dr. Harvey only states that Falor's impairment affects her when she sits for prolonged periods of time on rigid furniture, without regard to how long Falor can sit without experiencing pain or before getting up to walk around. Similarly, Falor does not identify her limitations with any specificity. In Colwell v. Suffolk County Police Department, 158 F.3d 635 (2d Cir. 1998), the court rejected similar claims of disability by three police officers. One of the officers alleged that, among other things, he had difficulty sitting for a "prolonged" time at work. Id. at 644. The court concluded that the officer's "descriptions of his limitations [were] marked throughout by hedging and a studied vagueness" such that there was "no support for the idea that his impairments would be significantly limiting `to the average person in the general population.'" Id. Similarly, the court concluded that another officer, who testified that he could not sit for long periods of time without getting up to stretch, was not substantially impaired because the evidence did not show that the officer was "`substantially' impaired in his ability to stand, sit, lift, bend, or reach as compared with the average person."Id. See also Kaley v. Icon Int'l, Inc., No. IP99-1750-CH/K, 2001 WL 1781898, at *6-7 (S.D.Ind. Dec. 4, 2001) (concluding that the plaintiff failed to show that his fibromyalgia symptoms substantially limited him in a major life activity, because the adverse effects were "not of a nature or level of severity that impose significant restrictions on Kaley compared to the average person in the general population"). Thus, Falor is not disabled for purposes of the ADA.
Even if the Court concluded that Falor was disabled under the ADA, the Court would nonetheless conclude that LCCMH is entitled to summary judgment, because LCCMH provided a reasonable accommodation to Falor. Under the EEOC regulations, "[i]t is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business." 29 C.F.R. § 1630.9(a). Examples of "reasonable accommodation" include, without limitation:
job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.42 U.S.C. § 12111(9)(B). "In determining whether an accommodation is reasonable, the employer must consider (1) the particular job involved, its purpose, and its essential functions; (2) the employee's limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee." Keever v. City of Middletown, 145 F.3d 812, 812 (6th Cir. 1998) (citing 29 C.F.R. § 1630.9(a)). An employer has the discretion to chose from among several reasonable accommodations. Id. at 813. "The employer need not provide the accommodation that the employee requests or prefers," and "the employer retains the `ultimate discretion' to choose another effective accommodation, even if less expensive or easier to provide." Trepka v. Bd. of Educ. of the Cleveland City Sch. Dist., No. 00-4063, 2002 WL 104801, at *3 (6th Cir. Jan. 24, 2002) (quoting Hankins v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996)).
LCCMH provided a reasonable accommodation to Falor by furnishing a padded, high-back chair, which addressed at least some of the issues raised by Falor and Dr. Harvey. Moreover, Falor was able and, in fact, required by her job duties, to stand, walk, and change positions often. Thus, while LCCMH refused to provide Falor's desired accommodation, LCCMH nonetheless provided an accommodation that permitted Falor to perform her essential job functions. Finally, Falor's requested accommodation was not reasonable. As Falor readily admits, it was imperative that a person working in the monitor room alone remain awake and alert. In all likelihood, as demonstrated by the incident that precipitated Falor's termination, allowing Falor to perform her monitoring work in a La-Z-Boy-type chair would have resulted in Falor falling asleep and neglecting her most important duties.
IV. Conclusion
For the foregoing reasons, the Court will grant LCCMH's motion for summary judgment.
An Order consistent with this Opinion will be entered.