Summary
stating that "courts have uniformly held that employers are not obligated to retain a disabled employee on unpaid leave indefinitely or for an excessive amount of time"
Summary of this case from Robert v. Board of County Commissioners of Brown CountyOpinion
Case No. 02-1308-WEB
July 24, 2003
MEMORANDUM AND ORDER
Plaintiff Brian Lara alleges that his former employer, defendant State Farm Fire Casualty Company, discriminated against him on account of a disability in violation of Title I of the Americans with Disabilities Act ("ADA"). The matter is now before the court on State Farm's Motion for Summary Judgment. The court finds that oral argument would not assist in deciding the issues presented. For the reasons that follow, the court concludes that State Farm's motion for summary judgment must be granted.
I. Facts.
Plaintiff Brian Lara is a former employee of State Farm and currently resides in Wichita, Kansas. State Farm employed Lara for approximately twelve years. At the time of his termination, State Farm employed Lara as a fire claims specialist or fire claims representative in Wichita, Kansas. Lara was terminated on February 16, 2002.
On or about May 23, 2001, plaintiff injured his back in a non-work-related dune buggy accident. From May 2001 through February 2002, plaintiff used over 130 full days of paid sick leave while recovering from his injury.
On September 4, 2001, and September 18, 2001, plaintiff underwent surgery on his back. On February 9, 2002, plaintiff underwent an additional surgery on his back.
As of February 9, 2002, plaintiff could not carry a ladder, climb on roofs, stoop, crawl or sit at a desk and complete paperwork for a full workday. On February 16, 2002, the date of plaintiff's dismissal, plaintiff was unable to perform the job of a field claim representative.
From February 16, 2002, through May 13, 2002, the period for which plaintiff received disability insurance benefits, he was unable to perform the essential duties of his occupation.
State Farm's Fire Casualty Company handles all types of property and casualty claims other than automobile claims. These include various types of damage claims covered under homeowners' policies, such as wind, hail, water, fire, theft, vandalism, and damage involving third party liability.
State Farm's Fire Casualty Company's job description for the position of claim inspector states that an individual in this position consistently demonstrates effectiveness in a number of skills and abilities, including the ability to "Inspect Property and Casualty claims which could include obtaining measurements of the roof and living areas, the inspection of attics, basements, crawl spaces and other claim locations as applicable (requires walking, climbing, bending, reaching, stooping, crawling, and lifting objects typically weighing less than 50 lbs."
On or about January 11, 2002, Plaintiff submitted a Regional Office Accommodation Request Form to State Farm. On the form, plaintiff requested "no roof claims until directed by the doctor." On page 2 of the form, plaintiff stated that his "physical impairment is temporary!" Plaintiff also stated on the form that he could complete all job functions except carry a ladder and inspect and climb on roofs.
Todd Osborne, State Farm's Fire Section Manager, completed an ADA Management Questionnaire on January 11, 2002. Osborne answered "Yes" in response to the question, "If allowed, would this accommodation prevent the employee from performing the essential functions of the job?"
After undergoing surgery on February 9, 2002, Plaintiff could not carry a ladder, climb on roofs, stoop, crawl, or sit at a desk and complete paperwork for a full workday. During his deposition, plaintiff conceded that at the time of his termination he was "probably not" able to complete the job of a field claim representative.
On February 5, 2002, State Farm's ADA Accommodation Committee reviewed Plaintiff's Accommodation Request. The Committee did not make a decision on the request because, as noted above, Plaintiff underwent surgery on February 9, 2002.
State Farm terminated Plaintiff because his illness benefits expired February 16, 2002, and he was not able to return to work without restrictions for several months.
State Farm's Human Resources Policy states, "Once PSL [Paid Sick Leave] and/or ML [Medical Leave] expires, the employee should be terminated [on grounds of] Illness Benefits Expired . . . since it has already been determined that there will not be a return to work."
At the time of his termination, Plaintiff had 252 hours of vacation time and 18.5 hours of personal time remaining. State Farm's policies state that employees may not use paid vacation or personal time in lieu of paid sick leave. After his termination, Plaintiff was paid in full for his unused and accrued vacation and personal time.
Dr. Grundmeyer, of the Abay Neuroscience Center and Plaintiff's treating physician, testified that on April 1, 2002 (almost two months after Plaintiff's surgery), he recommended Plaintiff remain off work with no bending, twisting, pushing or pulling.
On February 21, 2002, State Farm received an Employee Medical Certification Form from Plaintiff stating, "End Date/Release to Return to Work: Unknown at this time. Approx. 3 months." The form contained a "Disability/Incapacity Start Date" of February 9, 2002. Dr. Grundmeyer signed the form and also indicated, "Work Restrictions, if any: No work." Plaintiff admitted during his deposition that the form contained the correct restrictions and that he should not have been working at all after February 27, 2002.
On February 27, 2002, State Farm received a Work Release, dated February 18, 2002, from Plaintiff signed by Dr. Grundmeyer. The February 27, 2002, Work Release stated, "May return to work on 2/18/02 without restrictions." Plaintiff persuaded someone at Dr. Grundmeyer's office to sign this February 27, 2002, Work Release and back-date it to February 18, 2002. The Work Release contained false work restrictions because Plaintiff was not able to return to work without restrictions on February 18, 2002. Plaintiff obtained the release because he wanted to keep his job.
On March 1, 2002, State Farm received a second Work Release from Plaintiff signed by Dr. Grundmeyer. This release contained the following restrictions, which were for a period of four weeks:
a. Frequent or repetitive lifting/pushing/pulling a maximum of 10 pounds.
b. Occasional lifting/pushing/pulling of a maximum of 20 pounds.
c. No kneeling/squatting/stooping/crawling/climbing.
On April 17, 2002, Dr. Grundmeyer signed a Work Release excusing Plaintiff from work, which stated Plaintiff was "Released from work until re-evaluation on 5/15/02."
Dr. Grundmeyer testified during his deposition that Plaintiff was first able to return to work in an office setting on May 15, 2002, three months after his illness benefits expired. He testified that Plaintiff could return to work on May 16, 2002, with the following restrictions:
a. Frequent repetitive lifting, pushing, pulling, a maximum of 10 pounds;
b. Occasional lifting, pushing, pulling a maximum of 20 pounds;
c. No prolonged sitting, standing, walking;
d. No excessive and/or repeated bending or twisting of the lower back;
e. No kneeling, squatting, stooping, crawling, climbing.
On August 1, 2002, Dr. Grundmeyer signed a Work Release which stated Plaintiff was released from work and did not provide a return-to-work date. On August 8, 2002, Plaintiff underwent a functional capacity evaluation at Health South Rehabilitation Clinic. The results showed that as of the date of the evaluation Plaintiff could perform light work for 8 hours per day.
On or about May 14, 2002, Plaintiff received a letter from CIGNA Group Insurance, State Farm's disability insurance carrier stating, "To qualify for benefits under your LTD policy, during the first 24 months you must be unable to perform the essential duties of your occupation." During his deposition, Plaintiff admitted that absent some accommodation he was unable to perform the essential duties of his occupation during this benefit period.
Plaintiff received a check from CIGNA for benefits for the period of February 16, 2002, through May 13, 2002, and was receiving continued monthly checks from CIGNA at the time of his deposition (February of 2003).
Plaintiff's Statement of Additional Uncontroverted Facts.
Plaintiff asserts there are three major life activities which have been substantially limited by his impairment: lifting, performing manual tasks, and working.
In his accident of May 23, 2001, Plaintiff suffered a burst fracture of his L-1 vertebra. Immediately after the accident, Dr. Trimble placed Plaintiff on restrictions preventing him from working at all. On September 4, 2001, Dr. Trimble performed a L-1 vertebrectomy and fusion from T-12 to L-2 with an anterior approach with a Pyramesh case, and metal screws, rods, and hooks to support the fracture area. On September 18, 2001, Dr. Trimble performed a second surgery using a posterior approach to add additional hooks and rods for more support.
On November 8, 2001, Dr. Trimble released Plaintiff to return to light duty work with lifting restrictions of 10 pounds maximum.
Starting in late January of 2002, Plaintiff's physical condition began to deteriorate. He was forced to use a cane on occasion for assistance in walking. He also suffered from increasing back pain. He was suffering from paralysis in his left leg that caused him to drag it when walking. The paralysis also caused urinary retention which required that Plaintiff catheterize himself on a regular basis. Plaintiff even required assistance with bathing as he was unable to bathe himself.
On February 9, 2002, Dr. Grundmeyer performed redo L-1 vertebrectomy with T-12 through L-2 fusion and T-12 through L-2 fixation. In this third surgery on Plaintiff, he removed the Pyramesh cage, drilled away the bone remaining at L-1, and replaced the mesh cage and bone with a tibia allograft bone. Dr. Grundmeyer then replaced the screws and rods to support the new bone graft. Dr. Grundmeyer felt it was necessary to do this surgery or else Plaintiff would likely develop or continue to develop problems including urinary retention, leg pain, and some type of permanent spinal cord injury.
At some point after this surgery, Dr. Grundmeyer placed Plaintiff on restrictions of frequent lifting, pushing or pulling a maximum of 10 pounds, occasional lifting, pushing or pulling of a maximum of 20 pounds, no repeated bending or twisting of the back, kneeling, squatting, stooping, crawling, climbing and no prolonged sitting, standing, or walking. Dr. Grundmeyer testified that Plaintiff would not have been able to return to work with these restrictions until May 16, 2002.
Prior to his surgery in February of 2002, Plaintiff was unable to carry laundry or groceries; he had to drag trash bags to the outside container, and he could not lift items like chickens or pizzas out of the oven.
Dr. Grundmeyer states that Plaintiff will never be able to return to work without restrictions. Plaintiff suffers from a permanent kyphotic deformity of his back where the fracture occurred. This deformity will cause chronic back pain and muscle spasms.
Plaintiff returned to work on November 26, 2001, and took 3.45 hours of paid sick leave per day for most days from November 26, 2001, through January 4, 2002. The amount of sick leave he took thereafter is reflected in Pl. Exh. N.
State Farm's policies provide that "[i]f an employee believes an accommodation of a physical or mental impairment is needed to perform his or her job, the employee should complete an Accommodation Request Form." State Farm requires all accommodation requests to be made in writing to the ADA Accommodation Request Review Committee. The Committee is composed of State Farm HR professionals and Dr. Stephen Kindred, State Farm's Medical Director. Dr. Kindred's role on that Committee is to serve as a medical consultant and evaluate the medical information presented.
Under the State Farm ADA Accommodation Request Review procedure, all requests for accommodation are to be made in writing on an ADA Employee Questionnaire. After a State Farm employee has filled out the proper form, the employee's supervisor completes the ADA Management Questionnaire and the local HR representative completes the ADA Human Resources Questionnaire. Those questionnaires are then sent to the State Farm ADA Accommodation Request Review Committee in Bloomington, Illinois, along with the employee's medical information and any other pertinent information. The ADA Accommodation Request Review Committee then reviews the request and makes a decision. The decision is then communicated to local management and the local State Farm HR representative. The State Farm HR representative then prepares a memo to the employee who made the request, informing them of the decision.
The formal ADA Accommodation Request Review procedure at State Farm is the only way by which State Farm employees are allowed to request accommodations.
On February 5, 2002, when the ADA Accommodation Request Review Committee reviewed Lara's request for the accommodation of being excused from climbing roofs, the Committee understood that it would take Plaintiff at least three months to recover from his upcoming surgery.
On February 12, 2002, Dr. Kindred sent a memo marked "Personal and Confidential" to Patty Boomgarden, Senior Benefits Administration Specialist at State Farm, concerning Plaintiff. In that memo, Dr. Kindred stated that "I have reviewed the current medical information concerning this individual. This includes total and permanent disability from employment." The memo further stated that "If all other criteria are met, this individual would be eligible for Extended Benefits [apparently referring to disability benefits available under State Farm's Employee Benefit Plan]." It also stated "Review of this should be in one year with an Attending Physician's Statement completed at that time."
On February 12, 2002, Dr. Kindred signed a memo in which he indicated Plaintiff was "incapable of continuing his/her employment with the Companies due to any medically determinable physical or mental impairment which may be expected to result in death or to be of long, continued, and indefinite duration." On February 13, 2002, Kelly Winslow, Assistant HR Manager for State Farm, sent an e-mail to Scott Emeola, the local HR Representative for State Farm, stating that she understood that Plaintiff's surgery on February 9 appeared to be successful and that "he would be back to work in a few months."
On February 13, 2002, Todd Osborne wrote an e-mail to Bill Rieker at State Farm in which he recommended that Plaintiff's employment be terminated because his paid sick leave had run out and he was unable to return to work without restrictions. In that e-mail, Osborne also noted that "the most probable time period before [Lara] could perform all of the Field Claim Representative job description is 3-6 months from now, . . ."
Plaintiff was granted disability benefits by CIGNA effective February 16, 2002, the date of his termination.
On January 11, 2002, Plaintiff had had a conversation with Scott Emeola in which Emeola told Plaintiff that "once his PSL [paid sick leave] runs out and he can't return to work without restrictions, his employment is terminated."
On February 4, 2002, Plaintiff had another conversation with Emeola in which they talked about whether Plaintiff would be eligible for unpaid medical leave when his paid sick leave ran out after his upcoming surgery. Plaintiff also asked if he could use his accrued vacation time after his paid sick leave expired.
On February 5, 2002, Emeola sent an e-mail to Annette Jackson, a State Farm HR consultant, asking about whether Plaintiff could be given any additional leave once his paid sick leave ran out. In this e-mail, Emeola asked: "In other words, could management, once his PSL [paid sick leave] expires, put him on unpaid Leave of Absence until he can return to work part-time/light duty, then allow him to work within his restrictions until he fully recovers? I know what this really amounts to is an accommodation. Do you recommend we do something like this?"
Later on February 5, 2002, Annette Jackson replied to Emeola's e-mail telling Emeola that she was not in favor of making an exception to the Illness Benefits Expired policy for Lara. Annette Jackson subsequently had conversations about this subject with Emeola and with Kelly Winslow when she repeated her opinion that an exception to the Illness Benefits Policy should not be made for Lara. Annette Jackson understood at that time that Plaintiff's impairment was expected to prevent him from working for approximately three months.
On February 19, 2002, Emeola, Osborne and Rick Beckler (the Team Manager and Lara's supervisor), went to Lara's home to tell him that his employment with State Farm was terminated. Plaintiff was still at home recovering from his third back surgery. Emeola told Plaintiff that since his sick leave had expired and he was unable to return to work without restrictions, his employment with State Farm was terminated for Illness Benefits expired. During this meeting, Plaintiff again asked about whether he could be granted medical leave or take his accrued vacation time rather than be terminated. Emeola replied that neither option was allowed by State Farm policies.
The purpose of the Fire Claims Representative position at State Farm is "within an assigned area of responsibility, to investigate, evaluate, negotiate and settle Fire and Allied Lines and General Casualty claims presented to State Farm Fire and Casualty Company (with the exception of automobile claims) and the State Farm General Insurance Company." Fire Claims Representatives at State Farm handle a broad variety of claims, including claims stemming from theft, water damage, fire, smoke damage, vandalism, storm damage, explosions and flooding.
Fire Claims Representatives could investigate claims involving roof claims by personally inspecting the damage, or, as explained more fully below, by having a Structural Damage Estimator inspect the damage, by having a Preferred Service Provider inspect the damage, or by having another Fire Claims Specialist inspect the damage.
State Farm employs Structural Damage Estimators ("SDE's") to handle some claims. SDE's handle similar claims to Fire Claims Representatives but do not handle claims where coverage issues may arise. As needed, SDE's also perform property or roof inspections and provide the results of their inspection to the Fire Claims Specialist who will then evaluate, negotiate, and settle the claim. Fire Claims Representatives could use SDE's to perform site inspections.
According to the deposition of Steve Short, the State Farm vice-president who approved the decision to terminate Plaintiff's employment, when claims are received by State Farm they are usually referred to one of State Farm's centralized offices known as "fire claims central." Screeners at these central offices review incoming claims and determine whether they should be assigned to fire claims central or to a field office. Simple claims are typically handled by fire claims central. More complex claims that likely require more scene investigation and work with attorneys are assigned to a field office. The primary function of SDE's [Structural Damage Estimators, referred to above] is to be the "eyes and ears" of fire claim central claim representatives, and to perform field inspection and write damage estimates for fire claims central. They also receive some assignments from field offices.
State Farm also has relationships with certain approved contractors who are designated as "Preferred Service Providers" ("PSP's"). If a State Farm insured chooses to use a State Farm PSP to do their repair work, the PSP is responsible for performing the investigation, determining the nature and scope of repair work to be done, and then performing the repairs. In most cases where a PSP is used, State Farm does need to send a fire claims specialist to perform an inspection of the property, although State Farm may send a claim specialist to inspect such a site if a problem develops or to ensure that the PSP is estimating accurately. Steve Short made the decision to terminate Plaintiff's employment with State Farm because Plaintiff's illness benefits had expired. Short did not believe that he or anyone else at State Farm had any authority to grant Plaintiff unpaid leave instead of terminating him when his illness benefits expired. Short was not aware that Plaintiff had requested additional leave in lieu of his termination.
Short knew at the time he made the decision to terminate Plaintiff that Plaintiff was suffering from a disability.
State Farm began searching for a replacement for Plaintiff in March of 2002. Ultimately, Tammy Konzem was hired as a Fire Claims Representative to fill the opening left by Lara's termination. Ms. Konzem was a teacher in the Hutchinson school district at the time of her interview. She did not start in her position as Fire Claims Representative with State Farm until June 3, 2002.
Every State Farm Fire Claims Representative is required to take certain training before they may begin their duties. These courses are the Fire Claims Training Series I and II, successful completion of the Fire Claims and Estimating School, and the Computer Based Training "estimatics modules." The Fire Claims Training Series I takes approximately two to three months to complete. The Series II training takes an additional one to two months to complete and cannot be started until Series I training is completed. The Fire Claims and Estimating School is a one week course held at Bloomington, Illinois, at least monthly. This school cannot be attended until the employee has completed both the Series I and II Fire Claims Training. The computer-based training "estimatics modules" is a self-directed course of study on CD-ROM's that must be completed before attending the Fire Claims and Estimating School but can be done concurrently with the Fire Claims Training Series. In total, a Fire Claims Representative must complete three to four months of training before they can begin to handle claims on their own.
Ms. Konzam started work with State Farm on June 3, 2002, and thereafter had to complete three to four months of training before she could begin handling claims on her own.
State Farm had a number of positions other than Fire Claims Specialist positions open during 2002. In May of 2002, State Farm had two positions open for an Agency Specialist in Wichita. In June of 2002, State Farm had a position for an Automotive Claims Specialist open in Wichita. In August of 2002, State Farm had another Agency Specialist position open in Wichita. Also sometime in 2002, State Farm had two open positions in Wichita for Financial Services Product Associates and one position for a Life Sales specialist.
The position of Automotive Claims Specialist does not involve climbing on roofs. It only involves minimal bending, stooping, and lifting. The Skills/Abilities for this position include "ability fo exercise sound judgment regarding claim settlement values; ability to communicate effectively with claimants, insureds, employers, police, witnesses, agents, auto repair firm personnel, attorneys, medical providers, and personnel of other insurance companies; ability to develop and analyze data needed to determine liability or the company's obligation under the insurance policy; [and] as appropriate to the claims assigned, ability to interpret, evaluate and, in some cases, write auto damage repair estimates (requires walking, reaching, bending, stooping, and lifting objects typically weighing less than 50 lbs.)
The position of Agency Specialist has no physical demands such as lifting, bending, or stooping, and does not require climbing on roofs. The Skills/Abilities listed for this position include "ability to participate as an effective team player; strong listening, oral, and written communication skills; ability to relate well with people at all levels of the organization, [and] enthusiastic about opportunities to help agents attain their goals." They help agents develop marketing plans and provide some training to agents on new products.
Prior to his termination, Lara had discussed with Emeola his interest in finding another position at State Farm that he might be able to fulfill. Specifically, Lara expressed interest to Emeola in a new position which was being created called a Field Compliance Coordinator. Those positions were posted at State Farm in February of 2002. Plaintiff was not given one of those positions.
The position of Field Compliance Coordinator has no physical demands such as lifting, bending or stooping and does not require climbing on roofs. The Skills/Abilities for this position include "strong communication skills: reading, writing, speaking to groups; ability to interact well with people and build good working relationships with agents, agents' staff, and others, [and] . . . demonstrates ability to work with minimal direct supervision."
Prior to Lara's termination, Emeola asked him if he would have any interest in a position with Fire Claims Central in Tulsa, Oklahoma. Lara said that he could not relocate to Tulsa because he has three children whose custody he shares with their mother who lives in Wichita. In fact, there was not an open position at Fire Claims Central at the time, although openings in that operation came up fairly frequently.
Most positions at State Farm are not advertised or made publically known. Instead, open positions are first posted on the State Farm intranet for which access is restricted to State Farm employees only. State Farm employees can then apply for other positions at State Farm that interest them. If the position is not filled with an internal candidate, State Farm will look at its files of prospective candidates compiled from job fairs and other applications and contact those that appear qualified about the opening.
Since his termination from State Farm, no one from State Farm has contacted Lara to tell him about any opening that existed at State Farm. Nor has Plaintiff had access to the State Farm intranet to see what openings have been posted.
After his termination, Lara applied for the position of Financial Services Product Associate with State Farm which was advertised on the internet. He was not selected for that position.
In the past, State Farm has excused Fire Claims Representatives from climbing on roofs because of pregnancy or injury. Todd Osborne was excused from climbing on roofs for about a month as a Fire Claims Representative while he recovered from a broken foot. In or around 1993, one former Fire Claims Representative was excused from climbing on roofs for several months (Tamera Trangott) and another was excused for several years (Browne Joy).
II. Summary of Arguments.
In moving for summary judgment, State Farm argues Plaintiff has failed to establish a prima facie case of discrimination because he cites no evidence that his impairment was of sufficient duration or permanence to constitute a disability, and because he fails to show that the impairment substantially limits a major life activity. It further argues that he could not perform the essential functions of a Fire Claims Representative — with or without reasonable accommodation — and was therefore not a "qualified individual" under the ADA. State Farm also contends Plaintiff's claim is barred by estoppel because Plaintiff applied for and received long-term disability benefits. It argues that Plaintiff's application for such benefits is inconsistent with the claim that he can perform the essential functions of a Fire Claims Representative if granted a reasonable accommodation. Finally, with respect to Plaintiff's claim for injunctive relief, which is premised upon an argument that State Farm's accommodation policies constitute a per se violation of the ADA, State Farm argues that its policies are consistent with ADA requirements. Plaintiff's response brief argues that there is a genuine issue of material fact as to each of the foregoing issues.
III. Summary Judgment Standards.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under Rule 56, the moving party initially bears the burden of making a prima facie showing of the absence of a genuine issue of material fact and an entitlement to judgment as a matter of law. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). This burden may be satisfied by pointing to an absence of evidence on an essential element of the non-movant's claim. Id. at 671 (citing Celotex, 477 U.S. at 325). Once the moving party carries this burden, the opposing party cannot simply rest upon the pleadings; it must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV. Discussion.
A. Background.
The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to . . . [the] terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The Act 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." § 12111(8).
Under the Act, "disability" means: "(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" refers to those activities that are of central importance to daily life. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002). To be "substantially limited," 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. ( citing 29 C.F.R. § 1630.2(j)(2)(ii)-(iii) (2001)). Whether a given impairment substantially limits a major life activity is determined on an individualized case-by-case basis. Rakity v. Dillons Companies, Inc., 302 F.3d 1152 (10th Cir. 2002). The court must also take into account the effects of mitigating or corrective measures when judging whether a person is substantially limited in a major life activity. Id. (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999)).
B. Whether Plaintiff was an Individual with a Disability.
The parties agree that Plaintiff's back condition constitutes a physical impairment. Plaintiff argues that the impairment substantially limited him in the major life activities of lifting, performing manual tasks, and working. Doc. 60 at p. 31.
As noted above, the ADA was intended to apply to impairments whose impact is permanent or long term in nature. Toyota Motor Mfg., supra. For this reason, numerous cases have concluded that a temporary impairment — including a surgery-related absence from work and resulting short-term working restrictions — does not constitute a disability within the coverage of the ADA. See Everist v. Blue Cross Blue Shield of Ks., Inc., No. 98-4041, 2000 WL 1708504 (D. Kan. Oct. 20, 2000); Rebarchek v. Farmers Co-Op. Elevator Merc. Assoc., 60 F. Supp.2d 1145, 1151 (D. Kan. 1999). See also Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 468 (4th Cir. 2002) (citing cases). Plaintiff's condition was arguably a temporary impairment, because at the time of his termination his inability to lift or to work was due to recent surgery, and it was hoped that the surgery would eventually reduce or eliminate the impairment. But a severe, non-permanent condition may rise to the level of a disability under the ADA where the duration of the condition is indefinite and unknowable or is expected to be at least several months. Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998). See also 29 C.F.R. § 1630, App. (EEOC Interpretive Guide). After reviewing the evidence in the record, the court concludes there is a genuine issue as to whether plaintiff's back condition was a long-term impairment that substantially limited him in the major life activity of lifting. Plaintiff's impairment began in May of 2001 with the burst fracture of his L-1 vertebra, and there is evidence that for an extended period thereafter he was unable to lift even light objects. The impairment necessitated two surgeries in September of 2001 and a recuperative period thereafter. Among other things, he was initially restricted from lifting more than 10 pounds. He was eventually cleared to begin light duty on November 26, 2001, but was restricted from lifting more than 20 pounds or from climbing ladders or roofs. State Farm accommodated Plaintiff during this time by allowing him to work part-time at a desk job processing claims that did not require strenuous inspection. Plaintiff continued to use sick leave during this period, and his condition gradually deteriorated. Prior to his third surgery in February of 2002, Plaintiff was unable to carry laundry or groceries; he had to drag trash bags to the outside container, and he could not lift items like chickens or pizzas out of the oven. On February 9, 2002, Plaintiff underwent surgery to replace the Pyramesh cage that had been installed in his prior surgeries. The cage apparatus was not working as planned and was putting pressure on Plaintiff's spinal cord, causing pain and other problems. Without surgery Plaintiff likely would have continued to deteriorate and would have developed increased neurological problems and a permanent spinal cord injury. The record is somewhat vague concerning Plaintiff's prognosis immediately after his third surgery when State Farm terminatedhim. There is some evidence that Plaintiff informed State Farm it would take from 3-6 months and possibly longer to recover from the surgery. Dr. Grundmeyer, Plaintiff's treating physician, confirmed in his deposition that given Plaintiff's condition and the type of surgery involved it was likely to be at least three months before Plaintiff could return to any type of work and that progress thereafter was dependant upon individual circumstances. Grundmeyer indicated that Plaintiff's estimated return to work date could not be determined as of February 22, 2002 (shortly after the surgery), and that three months after surgery was a more appropriate time to make an evaluation. He testified that for a redo fusion surgery of this type, three months was the minimum period before a return to light duties could be expected and that such a patient would have various restrictions at that point including no repetitive lifting of more than 10 pounds, maximum lifting of 20 pounds, and no squatting, crawling, or climbing. Progress thereafter would depend largely upon individual circumstances and progress.
State Farm's ADA Accommodation Committee tabled Plaintiff's request for accommodation in view of Plaintiff's impending third surgery, and it apparently failed to gather much information on Plaintiff's prognosis before Plaintiff was terminated on February 16, 2002. State Farm subsequently gathered additional information on Plaintiff's prognosis in connection with an appeal by Plaintiff of his termination.
Dr. Grundmeyer testified that Plaintiff was in fact experiencing low back pain three months after his surgery, that the pain increased with activity, and that Plaintiff was experiencing intermittent back spasms. He said Plaintiff was slowing improving at that point and was capable of returning to an office setting for a limited time, but that it would be another six to eight weeks thereafter before a lessening of restrictions could be evaluated. At six months after surgery, Plaintiff had chronic complaints of back pain, and he developed an infection that was causing pain. Dr. Grundmeyer stated that in late August of 1992 Plaintiff was capable of working in a sedentary office setting with various limitations, including no prolonged sitting, standing or ambulation, heavy lifting, or bending or twisting. According to Dr. Grundmeyer, Plaintiff is likely to have chronic back pain and back spasms in the future due to a mild deformity in his spine from the initial injury.
Viewing this and the other evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that Plaintiff's impairment severely restricted his ability to lift as compared to the capability of the average person, and that it was long-term or indefinite in duration, having lasted approximately one year from its onset with no reasonably certain recovery time as of the date of his termination from State Farm. Cf. Aldrich, supra. The record thus gives rise to a genuine issue of fact as to whether Plaintiff had a disability. In view of this conclusion, the court need not address Plaintiff's contention that he was also severely restricted in his ability to perform manual tasks or to work.
C. Whether Plaintiff was a Qualified Individual, and Whether State Farm Failed to Reasonably Accommodate Him.
Plaintiff claims that State Farm should have granted him three months additional leave as an accommodation, arguing that this would have allowed him time to recover from surgery and to return to work. In so arguing, Plaintiff overlooks the fact that the three month recovery period was merely a minimum estimate of when he would be capable of returning to light duty; it was not an estimate of when he would again be able to perform the essential functions of a Fire Claims Specialist. In fact, the estimate provided to State Farm was that the recovery period could take up to six months, and it included no medical assessment that he would likely be able at that point to perform all of the essential functions of his job. With respect to granting leave generally, "[a]n allowance of time for medical care or treatment may constitute a reasonable accommodation" under the ADA. Rascon v. US West Communications, Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998) ( citing Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996). But the courts have uniformly held that employers are not obligated to retain a disabled employee on unpaid leave indefinitely or for an excessive amount of time. See Boykin v. ATC/Vancom of Colorado, L.P., 247 F.3d 1061, 1065 (10th Cir. 2001)). In this instance, the leave sought by Plaintiff was essentially indefinite, as there was no reasonable estimate of when Plaintiff would again be able to perform his job. Cf. Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir. 1999); Rascon, 143 F.3d at 1334 ("[A]n indefinite unpaid leave is not a reasonable accommodation where the plaintiff fails to present evidence of the expected duration of her impairment."); Hudson v. MCI Telecomm. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (unpaid leave was unreasonable accommodation where plaintiff failed to present evidence of the expected duration of her impairment or her prognosis). As noted in Cisneros v. Wilson, 226 F.3d 1113, 1130 (10th Cir. 2000), if the employee fails to provide an expected duration of the impairment, the employer cannot determine whether an employee will be able to perform the essential functions of the job in the near future and cannot assess whether the leave request is reasonable. Even assuming that six months represented the point at which a full recovery from Plaintiff's impairment might reasonably be expected, such an assumption would not avail Plaintiff because the courts have found that requiring an employer to grant leave for six months as an accommodation is an excessive amount of time. See Boykin, 247 F.3d at 1065 ( citing Scheer v. City of Cedar Rapids, 956 F. Supp. 1496-1501-02 (N.D. Iowa 1997) (request that position be held open indefinitely until plaintiff had been seizure-free for six months was not reasonable accommodation) and EEOC Enforcement Guidance (suggesting that six months is beyond a reasonable amount of time)). The unreasonable nature of this request is compounded by other factors shown by the record, including the fact that Plaintiff had already exhausted all of his available medical leave and State Farm was concerned because it was approaching the busiest time of the year for property damage claims and needed trained inspectors in the field. Moreover, in connection with Plaintiff's appeal to State Farm to reconsider its termination decision, Plaintiff submitted flatly contradictory medical assessments, including one that falsely stated he could return to work as of February 18, 2002, without restrictions. In sum, a grant of additional leave until Plaintiff fully recovered was not a reasonable accommodation under the facts of this case, and State Farm's failure to grant such leave did not amount to unlawful discrimination.
Plaintiff argues that a leave of three months would have been reasonable because it would take State Farm that long to train a replacement for him. The lengthy training time for a replacement, however, underscores State Farm's need to know sooner rather than later if Plaintiff was going to be able to perform the inspection duties of his job within a reasonable time after surgery.
Plaintiff's second contention — that State Farm could have accommodated him by excusing him from roof claims or by arranging for someone else to perform roof inspections on claims assigned to him — is likewise unavailing. As an initial matter, it is clear from the record that performing roof inspections is an essential function of a Fire Claims Specialist. Plaintiff's deposition testimony shows that climbing up and physically inspecting roofs was a frequent and necessary task for inspectors in the field. See e.g. Pl. Exh. OO at p. 23. State Farm has likewise cited evidence that Fire Claims Specialists in this part of the country must deal extensively with wind and hail damage to roofs, and that such claims constitute perhaps half of all field claims. See Pl. Exh. B. at p. 3. Cf. 29 C.F.R. § 1630.2(n) (defining essential function). Contrary to Plaintiff's suggestion, the fact that State Farm sometimes had its Structural Damage Estimators or outside contractors perform roof inspections on certain types of claims does not suggest that roof inspections were a marginal function of the Fire Claims Specialist position. Under the circumstances, State Farm was not required to accommodate Plaintiff by re-arranging the duties of his position or by having someone else take over and perform the inspection duties he was unable to perform, even if the company had occasionally undertaken such accommodations in the past.
In addition to this reassigning or rearranging of one of the essential functions of Plaintiff's position, this requested accommodation, like the others suggested by Plaintiff, would also have required State Farm to grant 3-6 months of additional leave to allow Plaintiff time to recover from surgery.
The record indicates that bending, crawling and stooping were also essential functions for this position. For example, Plaintiff conceded in his deposition that he spent approximately 20% of his time on home inspections bending, crawling or stooping, and that such activities were necessary to assess the damage on property claims. See e.g. Pl. Exh. OO at Pp. 23-32.
Scott Emeola noted in his deposition that State Farm did not want to continue excusing Plaintiff from roof inspections after his third surgery "[b]ecause at that point it had been several months that Brian had not been doing that [roof inspections]" and "[e]verybody else in the unit had to pick up the load, had to have more roof inspections." Pl. Exh. EE at p. 42. Cf. Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (an accommodation that would result in other employees having to work harder or longer hours is not required).
"The idea of accommodation is to enable an employee to perform the essential functions of his job; an employer is not required to accommodate a disabled worker by modifying or eliminating an essential function of the job." Mathews v. Denver Post, 263 F.3d 1164, 1168-69 (10th Cir. 2001). Of course it is always possible for an employer to arrange to have some other employee perform an essential function that a particular employee with a disability cannot perform. But the duty of reasonable accommodation does not require the employer to shift an essential function of the job to other employees. See Frazier v. Simmons, 254 F.3d 1247, 1261 (10th Cir. 2001) ("[w]e hold that reassigning these [essential] functions to another investigator in the office or other state employees is not a reasonable accommodation."). See also Milton v. Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995) (employer is not required to reallocate job duties in order to change the essential function of a job) and Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999) (en banc). Plaintiff is essentially arguing that State Farm should have created a new light duty position for him that would not involve roof inspections. Cf. Mathews, 263 F.3d at 1169. The cases cited above make clear that such an accommodation is unreasonable as a matter of law. Frazier, 254 F.3d at 1261. Accordingly, State Farm's failure to excuse Plaintiff from inspecting roofs did not constitute unlawful discrimination, as the suggested accommodation was unreasonable and Plaintiff could not otherwise perform the essential functions of his position.
Plaintiff's third argument concerning accommodation is that State Farm could have reassigned him to another position within the company. Pl. Br. at p. 53. He argues that State Farm failed to consider him for any other position after his termination and thereby failed to offer a reasonable accommodation. Id. Plaintiff specifically argues that he was qualified for an Agency Specialist position, a position that required no bending, stooping or lifting.
If an employee, because of a disability, can no longer perform the essential functions of the job he has held, the duty of reasonable accommodation may require his employer to reassign the individual to another vacant job for which the person is qualified. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1162 (10th Cir. 1999). Once an employee communicates to his employer a desire for reassignment, both parties have an obligation to "proceed in a reasonably interactive manner to determine whether the employee would be qualified, with or without reasonable accommodations, for another job within the company and, if so, to identify an appropriate reassignment opportunity if any is . . . available." Id. at 1172. Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that Plaintiff expressed his desire for reassignment to State Farm. A jury could also find from the evidence that State Farm failed to fully examine and apprize Plaintiff of whether there were any vacancies to which he could be reassigned when it terminated him under its leave policy without having its Accommodation Committee review his situation. But even if State Farm failed to fully comply with the "interactive" process contemplated by the ADA, Plaintiff would not be entitled to prevail unless he could show that a reasonable accommodation was possible and would have led to a reassignment position. Id. at 1174. This requires a showing that there was a vacant position for which Plaintiff was qualified at the time of his termination. See Bristol v. Bd. of County Comm'rs of Clear Creek, 281 F.3d 1148, 1167 (10th Cir. 2002) (relevant time for determining whether there was vacant position was at the time of termination), vacated in part on other grounds, 312 F.3d 1213. A "vacant position" includes not only one that is at the moment vacant, but also one that the employer reasonably anticipates will become vacant "in the fairly immediate future." Smith, 180 F.3d at 1175. Under the evidence cited, however, Plaintiff was not qualified for any position at the time of his termination nor would he have been qualified in the "fairly immediate future," because he needed a minimum of three months after his surgery before he could perform even light duties. Plaintiff identifies a number of positions that opened up at State Farm in May, June and August of 1992, but such positions were vacant 3-6 months after his termination, which cannot reasonably be construed as the "fairly immediate future." Cf. 29 C.F.R. § 1630, App., Section 1630.2(o) (if the employer knows that an equivalent position will become vacant next week, the employer should reassign the individual to the position when it becomes available). Nor has evidence been cited that State Farm knew of these positions when it terminated Plaintiff in February of 2002. See Bristol, 281 F.3d at 1168 (duty of reassignment requires evidence of employer's subjective knowledge of upcoming opening). Plaintiff also points out that several Field Compliance Coordinator positions were posted at State Farm in February of 2002. But again, Plaintiff was not able to work until several months after his surgery in February, and he was thus not qualified for these positions when they were vacant. Finally, Plaintiff notes that he has been turned down for one or more positions at State Farm since his termination. No claim appears to be made, however, that such employment decisions were made on account of a disability, and no evidence is cited to substantiate such a claim. In sum, the court concludes that Plaintiff has not raised a genuine issue of fact as to whether State Farm failed to reasonably accommodate him by transferring him to a vacant position within the company.
D. Additional Arguments.
Because Plaintiff has not shown a genuine issue of fact as to whether State Farm actually failed to reasonably accommodate him, his additional claim that State Farm's "Illness Benefits Expired" termination policy was contrary to the ADA's mandate of reasonable accommodation fails as a matter of law. Also, in view of the court's conclusion that Plaintiff has failed to show the elements of a claim for discrimination, the court need not address State Farm's argument that Plaintiff is estopped from asserting a claim under the ADA by reason of his application for long-term disability benefits.
V. Conclusion.
Defendant State Farm's Motion for Summary Judgment (Doc. 51) is hereby GRANTED. The clerk is directed to enter judgment reflecting that plaintiff Brian Lara is to take nothing, and that the action is hereby dismissed on the merits.