Opinion
Civil Action No. 97-4215-CM
March 28, 2001
MEMORANDUM AND ORDER
Plaintiff Candee Henry filed suit against defendant Modine Manufacturing Company alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. and violations of Kansas public policy. This matter is presently before the court on defendant's motion for summary judgment (Doc. 22). As set forth below, defendant's motion is granted and plaintiff's complaint is dismissed in its entirety.
In accordance with the applicable summary judgment standard, the facts are uncontroverted or related in the light most favorable to plaintiff, the non-moving party. Fed.R.Civ.P. 56.
• Background
Defendant Modine operates a production plant in Emporia, Kansas. Plaintiff began working at defendant's plant as a production employee in 1978. Except for a two-year period in the 1980s, plaintiff was continuously employed by defendant in various production positions until her layoff on November 7, 1995.
On or about May 20, 1994, plaintiff sustained an injury to her shoulder while she was working. After the injury, plaintiff returned to work on light duty for approximately three to six weeks. When plaintiff's treating doctor, Dr. Glenn, released plaintiff to return to work full duty, she returned to work in her position as a Core Assembly Processor (CAP) on the plastic line. The CAP position is classified as Labor Grade 3.
Plaintiff filed a worker's compensation claim for her shoulder injury. During the worker's compensation proceedings, the administrative law judge (ALJ) appointed Dr. P. Brent Koprivica as an independent medical examiner. The ALJ requested that Dr. Koprivica perform an "independent medical examination" and provide an "evaluation and disability rating, if appropriate, and recommendations regarding what future medical treatment may be/is appropriate, if any, regarding claimant's shoulder injury." Additionally, the ALJ specified that "restrictions should be noted, if any are appropriate."
On or about September 11, 1995, Dr. Koprivica examined plaintiff and prepared a report of his medical conclusions. In his report, Dr. Koprivica noted restrictions on plaintiff's ability to perform certain physical movements. Specifically, Dr. Koprivica's report provided, "In regard to ongoing work activities, [plaintiff] should avoid repetitive above shoulder activities on the left. She should avoid repetitive forceful flexion/extension of the elbow. She should avoid repetitive pushing/pulling at the left shoulder girdle." Dr. Koprivica, in his report and at his deposition, stated that his opinions were given within a reasonable degree of medical certainty.
Plaintiff attempts to controvert defendant's assertion that Dr. Koprivica "placed restrictions" on plaintiff's ability to work as a CAP. Plaintiff asserts that Dr. Koprivica only made recommendations that were intended to give plaintiff instruction on what limitations she could exceed. The court finds the cited portions of the record do not support plaintiff's assertion and that no reasonable fact finder could conclude Dr. Koprivica did not note "restrictions" on plaintiff's ability to perform certain physical functions.
Dr. Koprivica was not retained to make specific recommendations regarding plaintiff's ability to continue to perform her job. Instead, he was asked to perform an evaluation to determine, for worker's compensation purposes, whether plaintiff had any level of impairment. He did not, as a part of his examination, gather specific information on plaintiff's work requirements.
On Friday, November 3, 1995, plaintiff testified at a hearing before the ALJ in her worker's compensation action. Plaintiff testified at the November 3 hearing and at her deposition that her CAP duties were in violation of the physical restrictions set out by Dr. Koprivica. At the time of her layoff, plaintiff indicated to defendant's employees that she wanted to go back to her job as a core assembler in the plastic line.
Reviewing the cited portions of the record, the court does not find plaintiff has controverted the fact that she admitted under oath in two different forums that, considering the limitations listed by Dr. Koprivica, she could not perform the functions of her job as a CAP.
• Job Duties
CAPs are responsible for assembling "cores" that are used in radiators. Cores are assembled by stacking long tubes and objects referred to as "fins" into an assembly fixture. Core assembly processors on the plastic line spend approximately 80 percent of their time rotating between two different types of production equipment used to assemble the cores. The two types of production equipment are referred to as "SAC-jig" and as "U-CAM." When assembling cores, core assembly processors are required to perform above-the-shoulder activity typically twenty times an hour on the SAC-jib machines, and typically ten times an hour on the U-CAM machines. The above-the-shoulder activity for the SAC-jig machines consists of manually loading tubes into a magazine (which is typically done ten times an hour), and then manually guiding the tubes as they are dropped from the magazine into a dispensing mechanism (which is also typically done ten times an hour), but no manual activity is required to drop the tubes into the dispensing machine, since that is done automatically. These activities are performed at an above-the-shoulder level because the machines use gravity in dropping the tubes into the dispensing mechanism. The above-the shoulder activities require the use of both hands when handling the tubes, because the tubes are as long as 32 inches.
These over-the-shoulder activities are fundamental to the assembly of a core, in that a core cannot be assembled if these activities are not performed. In her deposition, plaintiff agreed that her job required her to lift tubes over her head approximately 80 times a day, or ten times an hour. Plaintiff also agreed that this job duty was not consistent with Dr. Koprivica's restrictions.
When a core has been assembled, a CAP must use a device called a "patboard" and press it against the core in order to align the tubes and fins. Since a CAP may assemble approximately 20 cores per hour, this patboard movement must be performed about 20 times an hour. This patboard activity is necessary to prevent physical damage to the cores later in the production process, because such damage can reduce the heat transfer characteristics of the radiator. In her deposition, plaintiff explained that this patboard job duty required her to perform forceful pushing movements which involved the use of both her left and right shoulders.
When a core has been fully assembled and aligned, a CAP must lift the core out of the fixture and place it onto another production line. Since a CAP may assemble approximately 20 cores per hour, this movement must be performed about 20 times an hour. The weight of the core can range from about 10 to 45 pounds. The activity of lifting the fully assembled core out of the fixture and placing it onto a production line after it has been assembled is necessary to ensure the continuous flow of the production process. In her deposition, plaintiff agreed that her job required her to take out a core 20 times an hour. She also agreed that this job duty was in violation of Dr. Koprivica's restriction regarding repetitive forceful flexion and extension of her elbow.
Plaintiff testified during the November 3, 1995 hearing that she suffered pain all the time while performing the CAP job.
• Layoff Decision
Lori Dreiling has been employed by defendant as its Human Resources (HR) Manager since 1993. As HR manager, Mr. Dreiling is responsible for all human resources functions at defendant's Emporia, Kansas facility, including the handling of worker's compensation claims filed by employees. Doug Jacowski is defendant's plant supervisor in Emporia, Kansas.
On Friday, November 3, 1995, Ms. Dreiling learned about the physical limitations listed for plaintiff by Dr. Koprivica. Ms. Dreiling was not provided Dr. Koprivica's report on November 3, however, she did learn of the restrictions on this date. On November 3, Wayne Powers, defendant's worker's compensation attorney, contacted Ms. Dreiling.
In addition, at some point between November 3 and 6, Ms. Dreiling spoke to Dan Sager, defendant's employee relations supervisor in defendant's corporate office. During this conversation, Ms. Dreiling made notes about what Mr. Sager said. Her notes indicate Dr. Koprivica had placed some "vague restrictions" on plaintiff. Her notes further state, "Informing her of these restrictions. We will have to lay her off." Ms. Dreiling testified that during their conversation, Mr. Sager was not giving her direction. Instead, she testified that her notes indicate "discussion options and things we could do or should do, you know, things we already had done." Ms. Dreiling testified that she did not contact Dr. Koprivica, nor did she direct anyone else to do so.
Shortly after she had learned about the restrictions on November 3, 1995, Ms. Dreiling notified Doug Jacowski, the plant superintendent of those restrictions. On November 3, 1995, Ms. Dreiling and Mr. Jacowski did not discuss the medical report from Dr. Koprivica.
Ms Dreiling understood that Dr. Koprivica's report was not intended to foreclose plaintiff from doing her job as a CAP at the plant. In her deposition, Ms. Dreiling acknowledged that Dr. Koprivica's report did not indicate that plaintiff should stop doing her job at Modine or indicate specifically that plaintiff's job violated the medical restrictions listed in Dr. Koprivica's report. Dr. Koprivica had not been asked to issue an opinion on the matter of job tasks or plaintiff's ability to perform those job tasks. In fact, Dr. Koprivica's report did not contain an opinion regarding plaintiff's job tasks or her ability to perform any specific job task.
On Monday, November 6, 1995, Doug Jacowski and Geneva Adams, the plant nurse, met with plaintiff to discuss Dr. Koprivica's medical restrictions. During the meeting, Mr. Jacowski and Ms. Adams reviewed with plaintiff the job descriptions for all production jobs classified as Labor Grade 4 and below (including plaintiff's Labor Grade 3 CAP job), and asked her for her input about her ability to perform those jobs, given Dr. Koprivica's restrictions. During the meeting, plaintiff agreed that she was not able to perform the reviewed jobs, considering the "restrictions" listed by Dr. Koprivica. Ms. Dreiling testified that the jobs reviewed with plaintiff were the jobs at the plant at the time, not necessarily jobs that were vacant and available at the time of the conversation. During the meeting, plaintiff told Mr. Jacowski and Ms. Adams that she wanted to go back to her job as a CAP. At the time Mr. Jacowski spoke to plaintiff, he had not reviewed Dr. Koprivica's entire report, although he had read portions of it. Specifically, Mr. Jacowski did have knowledge regarding the physical restrictions in Dr. Koprivica's report.
Mr. Jacowski, Ms. Adams and plaintiff met again the following day, Tuesday, November 7, 1995, for further discussion. During the November 7 meeting, plaintiff reiterated that with Dr. Koprivica's restrictions, she was unable to perform the reviewed jobs. Plaintiff did not agree that she could not actually perform the jobs discussed.
Mr. Jacowski testified that during the meetings between plaintiff, Mr. Jacowski, and Ms. Adams on November 6 and 7, 1995, plaintiff and he agreed that plaintiff could not perform the functions of her job without exceeding the restrictions listed by Dr. Koprivica. In his deposition, Mr. Jacowski acknowledged that plaintiff "did a fine job" of performing her job and met production requirements upon returning to her job full duty. This comment related to the period of time before Dr. Koprivica imposed restrictions on plaintiff, i.e., between May 20, 1994 when plaintiff's injury occurred and November 3, 1995, when defendant learned of Dr. Koprivica's restrictions listed on September 11, 1995.
Defendant has a practice of reviewing and complying with medical restrictions imposed upon employees by a physician. Mr. Jacowski testified that employees were "put somewhere" rather than going to the production floor "until we could determine whether or not the [medical] restrictions were met and if we could meet the restrictions." Mr. Jacowski also testified that "every time we are aware of restrictions, we would review that before an employee could go to the floor." However, Mr. Jacowski testified that plaintiff was the only employee of defendant he could recall that was placed in a room alone for two days after the restrictions were discovered. Mr. Jacowski also testified that plaintiff was taken off the production floor and placed in a room at the plant on these two days while defendant reviewed plaintiff's work restrictions and during the two days defendant examined several jobs and obtained feedback from plaintiff.
Plaintiff asserts that plaintiff is the only recorded employee of defendant to be pulled off the plant floor with regard to medical restrictions. However, the deposition portions cited do not support this assertion.
Plaintiff had been working continuously in the CAP position from the time she returned to full-duty work in mid-1994, until she was laid off on November 7, 1995 — approximately one and one-half years. Plaintiff did not request an accommodation to perform the CAP position.
Defendant placed plaintiff on layoff status on November 7, 1995. Lori Dreiling was involved in the decision to lay off plaintiff. Ms. Dreiling testified that she had reviewed Dr. Koprivica's report before making the decision. Ms. Dreiling also testified that defendant did consider the portion of Dr. Koprivica's report regarding restrictions in making the decision to lay plaintiff off. Ms. Dreiling had also received "privileged information" from her worker's compensation attorney at the time defendant decided to lay plaintiff off. Ms. Dreiling testified that defendant considered Dr. Koprivica's restrictions and information received from the defendant's worker's compensation attorney when deciding to place plaintiff on layoff.
Mr. Jacowski testified that defendant placed plaintiff on layoff status because defendant and plaintiff agreed that the company did not have work that met with Dr. Koprivica's restrictions. Mr. Jacowski had not reviewed all of Dr. Koprivica's report at the time he provided input regarding the decision to lay off plaintiff. However, both Doug Jacowski and Lori Dreiling were aware that the restrictions had been made by a court-appointed doctor. Both Jacowski and Dreiling believed the doctor was unbiased.
The change of status form prepared by defendant at the time of plaintiff's layoff states that "[Plaintiff] has been placed on layoff due to our not being able to meet work restrictions as established by a court appointed physician."
Plaintiff asserts that Ms. Dreiling's reasons for placing plaintiff on lay off did not include the medical report of Dr. Koprivica. However, the cited record portion does not allow for a reasonable inference supporting this assertion.
• Dr. Koprivica's Testimony
Dr. Koprivica did not give an opinion that plaintiff could not, due to her restrictions, perform her CAP job at defendant's plant. Dr. Koprivica testified that he did not "mean to" imply that plaintiff could not do her job due to her restrictions. However, he also confirmed that in his report he did state restrictions on plaintiff's work activities with a reasonable degree of medical certainty. Dr. Koprivica was not asked to evaluate plaintiff's ability to perform her specific job tasks. Instead, Dr. Koprivica was asked by the worker's compensation ALJ to give an opinion regarding "any restriction that [he] felt would be appropriate."
• Termination of Employment Decision
Defendant had a written policy that had been published to all employees, which provided that an employee's employment relationship will terminate when the employee is not in active service for a period of one year. Pursuant to that policy, defendant terminated plaintiff on or about November 7, 1996, after one year of being on layoff status.
The change of status form prepared by defendant for plaintiff at the time of plaintiff's termination from employment states "Discharged — off work for a period of one year." The termination of service form prepared by defendant for plaintiff at the time of her termination from employment states, "Not in active service for period of one year (page 16 of the employee handbook)." The termination letter prepared by defendant and sent to plaintiff to notify her of her employment termination explains that she has been terminated from employment pursuant to defendant's policy as stated on page 16 of its employee handbook, because she was on inactive status for over one year. F. Disclosure of Medical Information
The only claim alleged in plaintiff's Equal Employment Opportunity Commission charge was based upon her termination from employment. Ms. Dreiling disclosed plaintiff's medical restriction only to Doug Jacowski (plant superintendent), Dan Sager (employee relations supervisor in defendant's corporate office), Geneva Adams (plant nurse), Jerry Retallick (plant manager), and Debbie VanSickle (human resources coordinator).
Ms. Dreiling disclosed the information to Mr. Jacowski, Mr. Sager, Ms. Adams, and Mr. Retallick because they would be involved in discussions regarding the restrictions and the possibility of accommodating those restrictions. The information was disclosed to Ms. VanSickle because she was responsible for filing the information in the appropriate HR file. Ms. VanSickle was responsible for assisting Ms. Dreiling with all human resources functions, including the maintaining of employee personnel files and the administration of worker's compensation claims. Plaintiff has no recollection of any member of defendant's management making any negative comments about her filing a worker's compensation claim for her shoulder injury.
• Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
• Discriminatory Layoff and Termination
Plaintiff alleges that defendant regarded her as being disabled within the meaning of the ADA and because of this belief it decided to place her on lay off status and subsequently to terminate her employment. As set forth in more detail below, plaintiff has failed to establish a prima facie case of disability discrimination. Accordingly, the court grants defendant's motion for summary judgment on plaintiff's ADA disability discrimination claim as it relates to her layoff and termination from employment.
• Failure to Establish Disability Under the ADA
The ADA prohibits a covered entity from discriminating against a "qualified individual with a disability" because of the individual's disability with respect to terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). 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." Pack v. Kmart Corp., 166 F.3d 1300, 1302 (10th Cir. 1999) (quoting 42 U.S.C. § 12111(8) and citing White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995)).
To establish a prima facie case under the ADA, plaintiff must demonstrate that: (1) she is disabled within the meaning of the ADA; (2) she is qualified, in that she can with or without reasonable accommodation, perform the essential functions of the job; and (3) she was discriminated against because of her disability. Siemon v. ATT Corp., 117 F.3d 1173, 1175 (10th Cir. 1997). Plaintiff has failed to establish the first element of her ADA prima facie case.
• "Regarded As" Disabled
Under the ADA, a "disability" is defined 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." Pack, 166 F.3d at 1302. Here, plaintiff relies upon subsection (C) to establish that she is disabled under the ADA. Under subsection (C), a person is "disabled" under the ADA if he is "regarded as having" a "physical or mental impairment that substantially limits one or more of the major life activities of such individual," regardless of whether the individual actually has the impairment. 42 U.S.C. § 12102(2)(C); MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1443 (10th Cir. 1996). The "focus is on the impairment's or the perceived impairment's effect upon the attitudes of others." Sutton v. United Air Lines, Inc., 130 F.3d 893, 903 (10th Cir. 1997).
The regulations implementing the ADA explain that a person is "regarded as" having an impairment that substantially limits a major life activity if he or she
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined . . . but is treated by a covered entity as having a substantially limiting impairment.29 C.F.R. § 1630.2(l)(1)-(3)).
The court assumes plaintiff seeks to establish that defendant regarded her as substantially limited in the major life activity of working. Working is the only major life activity plaintiff addresses in her response. See Poindexter v. Atchinson, Topeka Santa Fe Ry., 168 F.3d 1228, 1230 (10th Cir. 1999) (noting plaintiff must identify major life activities defendant allegedly believed were limited by her impairment). In order to establish a disability under the "regarded as" prong of the ADA with respect to the major life activity of working, plaintiff must establish that defendant regarded her as having an impairment that substantially limited her ability to perform a class of jobs or a broad range of jobs in various classes. 29 C.F.R. § 1630.2(j)(3)(i); Nielsen v. Moroni Feed Co., 162 F.3d 604, 612 (10th Cir. 1998).
Construing the facts in the light most favorable to the plaintiff, the court finds that she has not produced evidence from which a reasonable fact finder could conclude that defendant regarded her as having an impairment that substantially limited her major life activity of working.
• Reliance on Doctor's Report
The ADA's "regarded as" prong is not intended to address situations where an employer relies on a limitation imposed by a doctor as the basis for an employment action. Bernhard v. Doskocil Cos., Inc., 861 F. Supp. 1006, 1013 n. 13 (D.Kan. 1994). The "regarded as" prong of the ADA's disability definition is "intended to encompass those situations in which an employee regards someone as disabled based on certain stereotypes or myths, not a situation where a person is regarded as having limitations because a doctor has said so." Id. (citing H.R. Rep. No. 485, Part 3, 101st Cong., 2d Sess. at 30 (1990), U.S. Code Cong. Admin. News 1990, 267 (reporting on the Americans with Disabilities Act definition of "disability")). Where an employer's perception of an employee is based upon facts, rather than "erroneous perceptions," a discriminatory intent under the "regarded as" prong of the ADA may not be inferred upon the employer. See Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (noting regarded as "provision [of ADA] is intended to combat the effects of 'archaic attitudes,' erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities") (citing School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 285 (1987)).
Here, plaintiff was examined by Dr. Koprivica, an independent medical examiner, as a part of her worker's compensation proceedings. Dr. Koprivica was charged with evaluating plaintiff's medical condition. Although Dr. Koprivica was not engaged to make a determination regarding plaintiff's ability to perform her job, he did list restrictions on plaintiff's physical abilities in his report. Specifically, Dr. Koprivica reported, "In regard to ongoing work activities, Ms. Henry should avoid repetitive above shoulder activities on the left. She should avoid repetitive forceful flexion/extension of the elbow. She should avoid repetitive pushing/pulling at the left shoulder girdle."
Although plaintiff has attempted to controvert the defendant's assertion that Dr. Koprivica placed restrictions on plaintiff's ability to perform her job, reviewing the record generally and at the citations set forth by the parties, the court finds no reasonable fact finder could conclude that Dr. Koprivica did not place restrictions on plaintiff's ability to perform certain physical activities. Although Dr. Koprivica testified that he did not "mean to" imply that plaintiff could not do her job due to the restrictions he listed, he did list the restrictions in his report. Further, Dr. Koprivica testified that the restrictions on plaintiff's work activity listed in his report were appropriate and had been stated with a reasonable degree of medical certainty. Although prudent human resources practice may have suggested a follow up with Dr. Koprivica would be appropriate, defendant's reliance on the restrictions provided by Dr. Koprivica does not establish that it regarded plaintiff as disabled.
In addition, although plaintiff did not admit she could not actually perform the essential functions of the CAP job, she did concur with defendant that the CAP job and the other jobs reviewed in the plant could not be performed within the parameters of Dr. Koprivica's restrictions. Further, the court is persuaded by the fact that under Kansas law, nothing "requires an employer to return an employee to work clearly beyond his medical restrictions. To do so would require the employer to expose the employee to a situation which may well likely exacerbate his or her injury and open the employer (and/or the workers compensation fund) to additional liability." Griffin v. Dodge City Coop. Exch., 23 Kan. App.2d 139, 145, 927 P.2d 958, 963 (1996) (examining employee's argument that the Kansas Workers Compensation Act gives her the right to be returned to work beyond her medical restrictions). This is true even where the employee wishes to be returned to such work. Id.
Based upon these facts, the court concludes that plaintiff has not set forth evidence to establish that defendant regarded her as having a disability. Defendants did not act without reference to medical advice. Instead, defendants, understanding the functions of plaintiff's job and considering the restrictions on plaintiff's physical capabilities listed by Dr. Koprivica, determined she could not perform the essential functions of her job without violating those restrictions.
• No Class of Jobs Established
Even if plaintiff were able to establish that defendants regarded her as having an impairment that could limit a major life activity, she has failed to set forth evidence to establish that defendant regarded plaintiff as substantially limited in the major life activity of working. That is, plaintiff has not established defendant regarded her as substantially limited in performing a "class of jobs" as that term is defined by the ADA. 29 C.F.R. § 1630.2(j)(3)(i).
In determining whether plaintiff is regarded as significantly restricted in her ability to perform either a class of jobs or a broad range of jobs, the court considers:
• [t]he geographical area to which the individual has reasonable access;
• [t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
• [t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).29 C.F.R. § 1630.2(j)(3)(ii).
Here, plaintiff asserts that defendant regarded her as being substantially limited from performing a class of jobs. Plaintiff cites Mr. Jacowski's testimony that he understood plaintiff to "no longer [be] qualified for an entire class of positions, that being all of Class 4, all of Class 3 and all of Class 1 in the [defendant's] manufacturing plant" in support of her argument. However, the jobs referred to encompass only those production jobs in defendant's plant. Together, only twelve production jobs were at issue. Plaintiff does not provide evidence relating to "the number and types of jobs utilizing similar training, knowledge, skills or abilities, within th[e] geographical area, from which the [plaintiff] is also disqualified because of the impairment." Id. There is no evidence to demonstrate her level of training, skills and abilities in order to compare them to the average person. Further, plaintiff has not set forth evidence regarding the "geographical area to which the individual has reasonable access" or the number and type of jobs demanding similar training from which plaintiff would also be disqualified. Id.
The court finds that the twelve jobs listed by plaintiff do not qualify as a class of jobs under the ADA. See Siemons, 117 F.3d at 1176 (finding all jobs within a 150 employee group of an ATT office located in Denver, Colorado did not constitute a "class of jobs" under the ADA); Sutton, 130 F.3d at 905 (finding the position of global airline pilot was not a "class of jobs;" instead, the appropriate class of jobs consisted of all pilot positions at all airlines). Rather, the court finds the appropriate class of jobs would consist of all manufacturing jobs in the Emporia, Kansas area. See McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir. 1997) (finding that for a production worker with lifting restriction, the appropriate class of jobs is all manufacturing jobs, rather than the narrow range of assembly line manufacturing jobs that require repetitive motion or frequent lifting).
The court finds plaintiff has not set forth evidence sufficient to establish that defendant regarded her as substantially limited from performing a class of jobs or a broad range of jobs in various classes, as required for her prima facie ADA case.
Because plaintiff has failed to establish the first element of her ADA discrimination prima facie case, the court finds no reasonable jury could return a verdict in her favor. Accordingly, defendant's motion for summary judgment as to plaintiff's disability discrimination claim is granted.
• Worker's Compensation Retaliation Claim
Plaintiff asserts defendant placed her on layoff status and subsequently terminated her employment in retaliation for her filing a worker's compensation claim. As set forth in more detail below, plaintiff has failed to set forth sufficient facts to establish her claim. Accordingly, the court grants defendant's motion for summary judgment on plaintiff's retaliatory discharge claim.
In Kansas, the employer-employee relationship is governed by the doctrine of employment-at-will. In the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party. Johnson v. Nat'l Beef Packing Co., 220 Kan. 52, 54, 551 P.2d 779, 781 (1976). Kansas law recognizes a public policy exception to the employment-at-will doctrine for employees discharged in retaliation for the exercise of their rights under the Worker's Compensation Act. Murphy v. City of Topeka, 6 Kan. App.2d488, 495-96, 630 P.2d 186, 192 (1981).
The standard of proof for plaintiff's retaliatory discharge claim is proof by a preponderance of the evidence that is clear and convincing in nature. Ortega v. IBP, 255 Kan. 513, 527, 874 P.2d 1188, 1197-98 (1994). To be clear and convincing evidence:
[T]he witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts at issue.
Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545, 545 (1980) (citation and quotations omitted). Evidence is "clear if it is certain, unambiguous, and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it." Ortega, 255 Kan. at 527, 874 P.2d at 1188 (citing Chandler v. Central Oil Corp., 253 Kan. 50, 58, 853 P.2d 649 (1993)). Under Kansas law, clear and convincing evidence is not a quantum of proof, but rather a quality of proof. Id.; Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 448, 827 P.2d 24, 32 (1992).
Plaintiff bears the initial burden to establish a prima facie case of retaliatory discharge by showing: 1) that she filed a claim for worker's compensation benefits or sustained an injury for which he could assert a future claim for benefits; 2) that defendant had knowledge of plaintiff's injury; 3) that defendant terminated plaintiff's employment; and 4) that a causal connection exists between plaintiff's exercise of his worker's compensation rights and his termination. Rosas v. IBP, 869 F. Supp. 912, 916 (D.Kan. 1994); Ortega v. IBP, Civ. A. No. 92-2351-KHV, 1994 WL 373887, *6 (D.Kan. July 1, 1994). We note that plaintiff must present evidence sufficient to sustain a rebuttable inference of defendant's retaliatory intent. See Nguyen v. IBP, Inc., 905 F. Supp. 1471, 1482 (D.Kan. 1995). We also note that plaintiff asserts both her layoff and her ultimate termination from employment were retaliatory.
Once plaintiff establishes a prima facie case, the burden of production shifts to defendant to rebut the inference that its motives were retaliatory by articulating a legitimate, nonretaliatory reason for the discharge. See Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1483 n. 2 (D.Kan. 1996) (noting its belief that Kansas courts would apply the McDonnell Douglas burden shifting analysis). "'If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, . . . [and] drops from the case.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)).
Plaintiff must then continue with the burden of proving by a preponderance of the evidence, which is clear and convincing in nature, that the employer acted with retaliatory intent. See Hicks, 509 U.S. at 508. Ultimately, it is plaintiff's burden to show that the discharge was "based on" the exercise of rights under the Worker's Compensation Act. See Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 147-48, 815 P.2d 72, 88 (1991).
Defendant does not dispute that plaintiff is able to establish the first three elements of a prima facie case. However, defendant moves for summary judgment on the ground that plaintiff has not presented clear and convincing evidence that she was placed on layoff or that her employment was terminated because she filed a worker's compensation claim. Plaintiff has not set forth evidence, let alone evidence of a clear and convincing nature, to establish that defendant's decision to terminate plaintiff's employment was based upon her act of filing a worker's compensation claim. Plaintiff has offered the following evidence to establish a causal connection between her activity and her termination. (1) Plaintiff was injured at work in May 1994.
The court notes that some of the evidence set forth by plaintiff in her response has been excluded, as it has been controverted by defendant.
(2) Other than a brief period of time on light duty, plaintiff performed her CAP position satisfactorily following her on the job injury.
(3) Dr. Koprivica, an independent medical examiner appointed by the ALJ presiding over plaintiff's worker's compensation claim, examined plaintiff on September 11, 1995 and issued his report on the same day, mailing a copy to each of the attorneys and to the ALJ.
• Dr. Koprivica testified that he did not intend his report to limit plaintiff's ability to perform her job at defendant's plant.
• Plaintiff's worker's compensation hearing was held November 3, 1995.
• Sometime after 2:00 p.m. on November 3, 1995, Wayne Powers, defendant's attorney, contacted Ms. Dreiling regarding Dr. Koprivica's restrictions. Further, Ms. Dreiling spoke to Mr. Sager, defendant's employer relations supervisor, regarding "vague restrictions" issued by Dr. Koprivica.
• Ms. Dreiling, defendant's HR manager, testified that she knew Dr. Koprivica's report did not state plaintiff must be taken off work.
• On November 6 or 7, 1995, Mr. Jacowski, without reviewing fully Dr. Koprivica's report, determined in conjunction with others at the plant and after reviewing Dr. Koprivica's restrictions with plaintiff, that plaintiff could not perform the essential functions of her position.
• Ms. Dreiling testified that defendant considered Dr. Koprivica's restrictions and information received from defendant's worker's compensation attorney when deciding to place plaintiff on layoff status.
The court finds no reasonable fact finder could conclude that the facts set forth rise to the level of clear and convincing evidence necessary to establish that defendant acted with retaliatory intent when it placed plaintiff on lay off status and ultimately terminated her employment. Further, the court has reviewed the evidence contained in the record. After viewing this evidence in the light most favorable to the plaintiff, the court is unable to find any support for the contention that the defendant had an illegal motive for the layoff and ultimately for the termination. Plaintiff herself testified that she had no recollection of any member of defendant's management making any negative comments about her filing a worker's compensation claim. Accordingly, plaintiff has failed to present a prima facie case.
Even if plaintiff were able to establish by clear and convincing evidence that a causal nexus existed between her protected activity and her termination, plaintiff's claim of retaliatory discharge would still fail as a matter of law as she cannot establish that her layoff or her discharge were "based on" her exercise of her rights under the Worker's Compensation Act. Brown, 249 Kan. at 147-48, 815 P.2d at 88.
The proximity in time between the filing of a worker's compensation claim and the adverse employment action can in some circumstances provide evidence of retaliatory intent. Here, plaintiff suffered her on the job injury on May 20, 1994. At some point prior to July 10, 1995, plaintiff filed a worker's compensation claim. On September 11, 1995, plaintiff was examined by Dr. Koprivica at the request of the worker's compensation ALJ. Defendant learned about the contents of the report on November 3, 1995. Defendant met with plaintiff regarding the restrictions listed in the report and placed her on layoff status on November 7, 1995. Following a year long absence, defendant terminated plaintiff's employment on November 7, 1996.
While proximity in time can provide some evidence of retaliatory motive, it alone is "insufficient to show by evidence of a clear and convincing nature that defendant's proffered nonretaliatory explanation for plaintiff's termination . . . was pretextual." Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1485 (D.Kan. 1996). Evidence regarding timing, together with more probative evidence, may provide support for a retaliatory discharge claim. Id. at 1484. However, as noted, there is no additional evidence of retaliatory intent.
Under Kansas law, "an employee who cannot return to his or her former position does not have a retaliatory discharge claim." Griffin, 23 Kan. App.2d at 146, 927 P.2d at 964. In Griffin, plaintiff's employment was terminated after he sustained a work related injury and was unable to perform his job duties given his doctor's restrictions. Plaintiff argued he should have been allowed to return to his former job despite the fact the job required activity in violation of his doctor's physical restrictions. The court found nothing in the worker's compensation statute indicating an employee can elect to return to a position beyond his or her medical restrictions. This concept, the court noted, is inconsistent with the purposes of the Kansas Worker's Compensation statute. Here, plaintiff admitted she could not perform her job, given Dr. Koprivica's restrictions. She did not, however, admit that she could not actually perform the job. In fact, plaintiff had been performing her job for a period of time following her injury. However, the court finds defendant is not required to return plaintiff to her job, where it clearly violates the restrictions listed by an independent medical examiner. Therefore, defendant's decision to place plaintiff on layoff status based upon Dr. Koprivica's restrictions does not give rise to an inference of retaliatory intent.
Further, under Kansas law, an employer may discharge an injured employee pursuant to a neutral absence policy, even where the employee has filed a worker's compensation claim. See Rosas, 869 F. Supp. at 917-18 (one year policy); Rowland v. Val-Agri, Inc., 13 Kan. App.2d 149, 154, 766 P.2d 819, 822 (1988) (six month policy). Here, defendant terminated plaintiff's employment pursuant to its neutral absence policy, following her absence for one year. The court does not find such termination gives rise to an inference of retaliatory intent.
Accordingly, plaintiff has failed to state a cognizable cause of action for retaliatory discharge. The court finds no reasonable jury could return a verdict for plaintiff on the retaliatory discharge claim. Defendant's motion for summary judgment is granted as to plaintiff's retaliatory discharge claim.
• Disclosure of Medical Information Claim
Plaintiff alleges that defendant's "release of [plaintiff's] medical records to the Human Resource personnel with regard to hiring at Modine Manufacturing is in violation of the ADA, specifically 42 U.S.C. § 12111, § 108(c); 29 C.F.R. § 1630.13." (Pl.'s complaint, at ¶ 24). As set forth below, plaintiff has failed to set forth evidence sufficient to establish her claim. Accordingly, defendant's motion for summary judgment on plaintiff's medical disclosure claim is granted.
The ADA prohibits medical examinations and inquiries of employees "unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). The ADA specifies when medical examination and inquiries are not unlawful and dictates that information an employer obtains regarding the medical condition or history of any employee are subject to certain requirements. Id. § 12112(d)(4)(C). Specifically, information obtained regarding the medical condition or history of [the employee] [must be] collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record, except that — (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; . . ." Id. § 12112(d)(3)(B)(i).
Plaintiff does not contend defendant unlawfully obtained her medical information. Instead, plaintiff asserts defendant's release of her medical records to the HR department violated the ADA. The uncontroverted facts establish that Ms. Dreiling, the HR manager, received information about plaintiff's medical condition. Further, the uncontroverted facts establish that Ms. Dreiling disclosed this medical information to Doug Jacowski, the plant superintendent, Dan Sager, the employee relations supervisor in defendant's corporate office, Geneva Adams, the plant nurse, Jerry Retallick, the plant manager, and Debbie VanSickle, the Human Resources coordinator. Mr. Dreiling disclosed the information to everyone but Ms. VanSickle because they were to be involved in discussions regarding the plaintiff's physical restrictions and the possibility of accommodating those restrictions. The information was disclosed to Ms. VanSickle because she was a part of the HR department, responsible for maintaining employee personnel files and administering worker's compensation claims.
Plaintiff has not set forth evidence to establish that defendant improperly disclosed her medical records. Instead, the evidence even when viewed in the light most favorable to plaintiff, suggests defendant disclosed plaintiff's medical information only to those managers necessary for the purpose of examining any "necessary accommodations" under the ADA. Id. § 12112(d)(3)(B)(i). In addition, plaintiff has not set forth any argument establishing that disclosure to Ms. VanSickle as a part of her duties in the HR department was not consistent with the ADA. Accordingly, the court finds plaintiff has failed to set forth sufficient evidence to establish her ADA medical disclosure claim. The court finds it unnecessary to address defendant's additional arguments seeking dismissal of this claim. Defendant's motion for summary judgment regarding plaintiff's medical disclosure claim is granted.
• Where Accommodations Sought by Defendant, No Regarded As
Defendant explored other job opportunities with plaintiff thereby demonstrating that it did not regard plaintiff as substantially limited in the major life activity of working.
Wait on this. . . . look at citations. Ricks, Czopek, Wilmarth.
• A "Qualified Individual"
Moreover, even assuming plaintiff has a "disability" within the meaning of the ADA, the court would grant summary judgment in favor of defendant because plaintiff cannot establish that she is a "qualified individual" with a disability. See Martin, 190 F.3d at 1129. The Tenth Circuit has adopted a two-tiered analysis for determining whether a person is "qualified" under the ADA.
First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions."
Id. at 1129-30 (quoting Milton v. Scrivner, Inc., 53 F.3d 1118, 11236 (10th Cir. 1995 (quoting White v. York Int'l Corp, 45 F.3d 357, 361-62 (10th Cir. 1995))).
Essential functions are those functions that comprise the "fundamental job duties of the employment position the individual with a disability holds." 29 C.F.R. § 1630.2(n)(2). The ADA regulations also specify that when determining the essential functions of a position, an employer's judgment as to which functions are essential may be considered. Id. § 1630.2(n)(3). Defendant set forth three essential job functions relevant to determining whether plaintiff was qualified. These job functions include above the shoulder activities performed by an employee when assembling cores, the patboard activity used to prevent physical damage to the cores later in the production process, and lifting cores out of a fixture and placing it onto another production line performed to ensure the continuous flow of the production process. Plaintiff does not dispute these assertions and has not set forth any separate evidence or even argument as to differing essential functions.
Here, plaintiff admitted that, given the limitations set forth by Dr. Koprivica, she could not perform the functions of her CAP job. Further, plaintiff admitted that she suffered pain all the time while performing her CAP job. The court notes that plaintiff did not admit she could not actually perform the functions of her CAP job. In fact, plaintiff had performed its functions from the time she returned to work full duty up to the time Dr. Koprivica listed restrictions on her physical activity. In addition, plaintiff requested to be returned to her CAP position.
However, as a matter of law, plaintiff has not set forth evidence to establish that she could perform the essential functions of her job within the restrictions set forth by Dr. Koprivica, an independent medical examiner. Is there case law re: an employer may rely on restrictions of m.d., even where plaintiff does not wish they be followed?
Next, the court examines whether any reasonable accommodation would enable plaintiff to perform the essential functions. Plaintiff has not set forth evidence to establish that any reasonable accommodation could enable her to perform the essential functions. In fact, plaintiff admits that she did not request an accommodation. Further, plaintiff admitted that, given Dr. Koprivica's restrictions, she could not perform her CAP job or the other production jobs at defendant's plant.
Accordingly, the court finds defendant has not set forth sufficient evidence to establish that she is a qualified individual with a disability within the meaning of the ADA.
ISSUE: COULD SHE PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB W/OR W/O REASONABLE ACCOMMODATION. PHYSICALLY YES, BUT NOT W/IN THE RESTRICTIONS OF AN EMPLOYER.
• Causation element
Assuming plaintiff is a qualified individual, the court finds plaintiff cannot establish that her layoff or her termination were based on plaintiff's perception that she had a disability as defined under the ADA.
• Order IT IS THEREFORE ORDERED that defendant's motion for summary judgment on plaintiff's ADA disability discrimination claim, plaintiff's ADA medical disclosure claim, and plaintiff's retaliatory discharge claim is granted. There being no remaining claims, plaintiff's complaint is dismissed in its entirety.