Opinion
No. 99-2400-KHV.
July 6, 2000.
MEMORANDUM AND ORDER
Gerald D. Lucas brings suit against the Board of County Commissioners of Miami County ("the County") for age and disability discrimination. This matter comes before the Court onDefendants' Motion for Summary Judgment (Doc. #24) filed April 19, 2000. For reasons set forth below, the Court finds that defendant's motion should be sustained.
Plaintiff also sues Miami County, Kansas and the Miami County Sheriff's Office. Plaintiff concedes that these are not proper defendants and that they should be dismissed.
Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law."Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Facts
The following facts are either undisputed or, where disputed, construed in light most favorable to plaintiff.
In March 1992, plaintiff started work as deputy sheriff for the Miami County Sheriff's Department. After a year, the sheriff promoted him to Director of Emergency Preparedness, a lieutenant position. In that position, plaintiff supervised all volunteers who worked with the sheriff's department. He also performed duties of a deputy sheriff, including responding to motor vehicle accidents and assisting officers at accident scenes when requested, taking routine calls when other officers were not available, and transporting people under arrest.
In May 1994, Frank Kelly became sheriff. In February 1995, Mark Schmidt assumed the position of undersheriff. Around December 1995, the County eliminated the Director of Emergency Preparedness position, and plaintiff became Operations Lieutenant. In this position, plaintiff primarily performed supervisory and administrative duties. The position also required him to respond as a general law enforcement officer. His duties included driving a patrol car, wearing a uniform and badge, carrying a weapon, enforcing the laws of the State of Kansas, supervising employees within the patrol and detective divisions (including 911 dispatchers), and anything else the sheriff wanted him to do. As a whole, plaintiff allotted an extremely small percentage of time to non-administrative duties.
While plaintiff was the Operations Lieutenant, Sheriff Kelly created a second Lieutenant position, Support Services Lieutenant, which Brad George filled. In February 1997, the sheriff and the undersheriff asked plaintiff and George to switch positions so that each of them would have a better overall working knowledge of the entire sheriff's office. Thus plaintiff became the Support Services Lieutenant and George became the Operations Lieutenant. The undersheriff said that the sheriff's department was planning to alternate the positions every year.
County job descriptions do not delineate between Operations Lieutenant and Support Services Lieutenant, but contain one job description for the position of Lieutenant. Among other things, the duties of Lieutenant are to
• supervise and schedule work of subordinate personnel;
• review and evaluate reports;
• assist in training and evaluation of subordinate personnel;
• enforce all federal, state and local laws and ordinances;
• gather information or secure evidence for the arrest of persons alleged to have committed crimes;
• receive and answer complaints and requests from the general public;
• arrest individuals who violate laws and ordinances;
• visit the scenes of crimes, investigate and follow up clues and search for and apprehend violators;
• appear in court to present evidence;
• interview suspects, prisoners, complainants and witnesses to obtain information about crimes;
• prepare detailed written reports of investigations; and
• maintain files.
Plaintiff performed all of these functions as Support Services Lieutenant, except that he did not follow up clues and maintain files. Plaintiff spent 95 per cent of his time on supervisory duties and five per cent on hands-on investigative duties.
As noted above, county job descriptions do not delineate between Operations Lieutenant and Support Services Lieutenant, but contain a unitary job description for the position of Lieutenant. The sheriff's department, however, maintains separate job descriptions for Operations Lieutenant and Support Services Lieutenant. The departmental job description for Operations Lieutenant fairly describes the duties which plaintiff performed in that position. It includes the following:
• assist in day to day operations of the sheriff's department;
• supervise patrol division and investigations unit;
• review written reports daily and direct to proper authority and location;
• schedule patrol and investigations;
• monitor civil process papers;
• develop policies and procedures;
• employee evaluations;
• assist in employee training and hiring process;
• investigation case assignments;
• monitor investigation case load and case clearance reports; and
• other duties deemed necessary by sheriff.
The departmental job description for Support Services Lieutenant includes the following:
• supervise and maintain the department computer system;
• direct the operation of the communication and jail units;
• assist in the day to day operation of the sheriff's department;
• schedule jail and communications;
• develop policies and procedures;
• maintain and update the 911 procedures manual;
• employee evaluations;
• assist in employee training and hiring process;
• assist in operations when requested or needed; and
• other duties deemed necessary by the sheriff.
Plaintiff performed all of these duties as Support Services Lieutenant.
As Support Services Lieutenant, plaintiff supervised the jail. Pursuant to department policy, the head jailer, Marsha Courtney, could not actively intervene in physical confrontations which involved inmates. She had to call for back up and Sheriff Kelly expected her to call plaintiff first. Plaintiff stated in his deposition, "[I]f somebody got out of hand or something, usually I was the first one there to try to restrain, if necessary . . . that's if I didn't have other personnel to do it." Lucas Depo. p. 149, ll. 18-24. On occasion, Courtney called plaintiff to assist with a disruption. During the time that he was Support Services Lieutenant, plaintiff did not actually provide physical assistance in resolving a jail disruption. He did verbally supervise other jailers, however, in such situations.
Even after he switched to Support Services Lieutenant, plaintiff was required to perform Operations Lieutenant duties on weekends every 28 days and on alternate holidays. When plaintiff acted as Operations Lieutenant, Sheriff Kelly expected him to respond to back up calls from road deputies and to actively detain and arrest individuals. As Support Services Lieutenant, plaintiff also bore responsibilities of a law enforcement officer, which required him to enforce state laws while on duty or driving to or from work.
Sheriff Kelly expected both lieutenants to perform other law enforcement duties including assisting road deputies as required and directed by the sheriff. From January 1998 to May 1998, plaintiff was called out of the office on non-administrative duties on at least seven occasions. On January 11, 1998, he helped transport a prisoner in an ambulance. On February 10, 1998, he assisted the Osawatomie Police Department with an aggravated battery case. On February 27, 1998, he participated in a restraining order and child custody disturbance.
On March 24, 1998, he helped transport a person with mental problems and he looked for a reckless driver. On April 1 and 9, 1998, he helped with cattle in the road, and on April 22, 1998, he assisted officers with an injury accident. On May 5, 1998, plaintiff fractured the L3 vertebra in his back while he was trying to pick up the tongue of his boat trailer. Dr. Breeden examined plaintiff because his family physician, Dr. Holscher, was not available. Dr. Breeden did not take x-rays of plaintiff's back and concluded that he could return to work with no restrictions. Plaintiff worked until the first part of June, when he could not get out of bed. He contacted Dr. Holscher, who prescribed a CAT scan. Upon learning of the fracture, Dr. Holscher told plaintiff that the only way for his back to heal was either bed rest or surgery. Dr. Holscher gave plaintiff a document which indicated that he could not work.
When plaintiff told undersheriff Schmidt that he could not work, Schmidt replied, "It's very suspicious. It seemed to me like it was about a year ago at almost the same date when you took off before." He also stated, "You've been working for almost a month since this happened. What's the change?" Sometime thereafter, plaintiff talked with Sheriff Kelly, who had been away at FBI school. Kelly asked when plaintiff would return to work. Plaintiff told him, "As soon as they will let me." Plaintiff apologized for the burden his absence placed on the department. The sheriff had been gone, the other lieutenant position was vacant, and the undersheriff had only two sergeants.
By May 5, 1998, George no longer worked for the sheriff's department. The record is not clear as to when George left or whether and when he was replaced, but it appears that the position remained vacant at least through the date of plaintiff's termination.
The record does not indicate the usual number of sergeants.
On June 23, 1998, the County received a Certification from Dr. Holscher which stated that plaintiff had suffered a L3 compression fracture with continued pain and that he was incapacitated for two to three months. The Certification further stated that plaintiff could not perform work of any kind, that he could not walk or stand for long periods, and that his medications would interfere with his decision-making ability. The sheriff's department granted plaintiff leave under the Family and Medical Leave Act ("FMLA") and allowed him to request sick leave contributions from other employees under the department's shared leave program.
Plaintiff updated the sheriff's department on his condition at least once a week thereafter. On July 23, 1998, plaintiff told Schmidt that his condition had not improved much and that he was undergoing tests for osteoporosis. On July 30, 1998, plaintiff told either Schmidt or Kelly that he was beginning medication for osteoporosis. He also indicated that the fracture remained the same. On August 6, 1998, plaintiff told either Schmidt or Kelly that nothing had changed, that he was taking medicine for osteoporosis, and that there was no guarantee that the bone would not break again.
On August 12, 1998, Dr. Holscher gave plaintiff another Certification which stated that plaintiff could not perform work of any kind. The Certification did not indicate the probable duration of his condition.
The record is unclear whether plaintiff gave this Certification to the sheriff's department.
In early September 1998, plaintiff visited with Kelly. Kelly asked plaintiff when he would return to work. Plaintiff did not know. According to Kelly, Schmidt told him that plaintiff was disabled and could no longer work as a law enforcement officer. Kelly asked plaintiff whether he planned to take retirement or disability. Plaintiff responded that he was not disabled and that he did not intend to retire or take disability. Around the same time, plaintiff talked with Johna Dial, Director of Human Resources for the County. They discussed the fact that county policy required plaintiff to obtain certification by a county healthcare provider before he returned to duty. Plaintiff learned that Dr. Holscher was a county provider.
On September 14, 1998, the County received a Certification from Dr. Holscher, stating that plaintiff could not perform work of any kind. The Certification did not indicate the probable duration of plaintiff's condition. The same day, plaintiff gave Schmidt a note from Dr. Holscher which stated, "Ok to return to work 9/28/98 Full duty — needs first floor office." Plaintiff's office was on the second floor, while the undersheriff and sheriff's offices were on the first floor. Plaintiff had told Dr. Holscher that Schmidt often called him to come downstairs to answer questions. Dr. Holscher limited plaintiff to a first floor office to prevent unnecessary trips on the stairs. Prior to September 28, plaintiff discussed the first floor restriction with Schmidt. Schmidt told him, "We can't accommodate you on this first floor office. We don't have any first floor offices available." Plaintiff did not explain to Schmidt or anyone else the reason for the first floor restriction.
On September 15, 1998, Dial (the County's human resources director) learned of Dr. Holscher's note which stated that plaintiff could return to work. Noting the inconsistency between the Certification and note, Dial faxed Dr. Holscher a copy of the county's lieutenant job description and left a message which asked him to determine whether plaintiff could perform the essential job functions of that position. Dr. Holscher reviewed the job description with plaintiff and wrote a note which stated, "No physical restraint of criminals would be suggested — high risk for additional fractures." Plaintiff gave Dial the job description and the note, and told her, "This is all Dr. Holscher will provide." Dial believed that the note conflicted with Dr. Holscher's prior statement that plaintiff could return to work with a first floor office. Due to the lack of clarification by Dr. Holscher, Dial decided to have a second physician examine plaintiff. She made an appointment with Dr. Gael Frank for September 28, 1998.
On approximately September 21, 1998, plaintiff called undersheriff Schmidt and told him that he would report to work on September 28. Schmidt said that he could not return to work until he received a county doctor certification. Schmidt instructed plaintiff to talk to Dial and told him, "You don't come back to work here . . . probably not ever." Plaintiff told Dial that he was not disabled even though Dr. Holscher's note said that "no physical restraint of criminals would be suggested." Either Dial or David Heger, the county counselor, told plaintiff that they needed more detail. Plaintiff requested clarification from Dr. Holscher, but Dr. Holscher declined to provide more detail.
The record is unclear whether Dr. Holscher refused or just neglected to provide more detail.
Plaintiff requested a meeting concerning his return to work. At the meeting, Heger told plaintiff that county policy allowed the County to request a doctor's examination before plaintiff returned to work. To facilitate the release of Dr. Frank's reports to the County, Dial asked plaintiff to sign a Consent to Release Records. Plaintiff refused to sign because the form was blank with respect to who would receive the records, and because it authorized release of all of his records — including records regarding mental heath and drug and alcohol abuse. Plaintiff told Dial that he would complete a form at the doctor's office. At the meeting, Dial gave plaintiff an appointment card for Dr. Frank. Plaintiff expressed concern that his FMLA leave would expire before they resolved the issue of his ability to perform essential job functions. The County agreed that it would not discharge plaintiff while it sought clarification of his medical condition.
Before his appointment with Dr. Frank, plaintiff called Dr. Frank's office and made arrangements to sign the necessary consent forms at the examination. Sometime before the scheduled appointment, Dr. Frank's office informed Dial that plaintiff's appointment was cancelled. Dial relayed this information to plaintiff, and he never saw Dr. Frank. Sometime thereafter, Dial, Heger and Kelly met with plaintiff and told him that his disability prevented him from performing the essential functions of his job. Kelly offered plaintiff a lower paying job as dispatcher on the first floor. Plaintiff declined the position.
At one of the meetings with plaintiff, Heger told him, "You're obviously disabled, you know, with the osteoporosis. At your age this is not a good sign. Normally you only hear about women getting osteoporosis, but in some cases now I understand that men get it, too. It's going to be especially hard on you now at your age." Plaintiff does not believe that Heger wanted to terminate his employment or that he did anything to obtain plaintiff's termination because of his age.
On October 5, 1998, Heger sent plaintiff a letter which terminated his employment, citing plaintiff's inability to perform the essential functions of a lieutenant deputy sheriff. Referring to plaintiff's medical restrictions of a first floor office and avoiding the physical restraint of criminals, the letter stated:
Yours and the other officers' offices, as well as the interview rooms, are on the second floor of the Sheriff's office. Much of the office records and evidence are located in the basement. Overseeing the jail requires repeated contact with prisoners and suspects, including restraining or subduing them at times. Field activity requires the restraint of suspected criminals, individuals under the influence of alcohol or illegal drugs, emotional or mentally unstable people and so forth. Supervising or assisting in the field entails strenuous physical activity such as chasing suspects, climbing into ditches to assist people injured in an accident, removing the injured from potentially dangerous situations such as automobiles leaking gasoline or an injured officer from a field of fire.
Plaintiff was 56 years old at the time, and he did not feel disabled. He believes that he could perform all of the lieutenant job duties without accommodation, because he had done so for a month after his injury. He also believes that it was not essential for him to have a first-floor office, pointing out that Dr. Holscher never said that he could not climb stairs.
Plaintiff does not address the fact that he could not get out of bed after doing so.
Schmidt referred to plaintiff as "that crazy old man upstairs." Schmidt also told Courtney that he wanted plaintiff to fail in the Support Services Lieutenant position. He told Courtney to watch plaintiff closely and to write him up for any mistakes. Schmidt also told Cpl. Jeanine Sullivan to write up plaintiff when he did something wrong, and admonished her not to tell plaintiff of his instruction. The record does not indicate when Schmidt made these statements.
Plaintiff claims that the County allowed four younger deputies (Mike Gage, Randy Cornelius, Don Matthews and Charles McClure) to return to their jobs after they sustained injuries, even though the County knew that they risked further injury. Kelly never received doctors' notes which indicated that any of these individuals were unable to perform essential job functions or risked further injury. In each instance, the individual returned to work only after the sheriff's department received a full release from his physician.
After he was fired, from November 1998 until March 1999, plaintiff worked three to five days a week as a "temporary rural carrier" for the U.S. Postal Service. After that, he worked as a security officer for Guardsmark Security, where his duties included checking building interiors for electrical and water problems and safety hazards and making sure the buildings were secure. From July 12, 1999 to the present, plaintiff has worked full time as a security officer for Shawnee Mission Hospital. His duties include checking doors, locking and unlocking buildings, walking the interior of all campus buildings, providing escort services to patrons and employees, and monitoring emergency room patients who have psychological or suicidal tendencies.
Analysis
1. Disability Discrimination
Plaintiff claims that the County terminated his employment because it perceived that he was disabled, in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. 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. See 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)). To establish a prima facie case under the ADA, plaintiff must show that (1) he is disabled within the meaning of the ADA; (2) he is qualified, that is, with or without reasonable accommodation, he is able to perform the essential functions of the job; and (3) defendant discriminated against him because of his disability. See Pack, 166 F.3d at 1302. As set forth below, plaintiff fails to present evidence sufficient to satisfy the first and second elements of the prima facie case.
Plaintiff asserts that he is disabled within the meaning of 42 U.S.C. § 12102(2)(C), which defines "disability" as "being regarded as having" a physical or mental impairment that substantially limits one or more major life activities. An individual falls within this statutory definition if:
(1) a covered entity mistakenly believes that the person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2149-50 (1999). Thus, in order to show that he is disabled under the statute, plaintiff must demonstrate that defendant mistakenly believed that he has a physical impairment that substantially limits one or more major life activities.
Plaintiff claims that defendant regarded him as having an impairment that substantially limits the major life activity of working. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. See Sutton, 199 S. Ct. at 2151; Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir. 1992). Rather, plaintiff must show that defendant regarded him as substantially limited in performing either a substantial class of jobs or a broad range of jobs in various classes. See Sutton, 119 S. Ct. at 2151; Nielsen v. Moroni Feed Co., 162 F.3d 604, 612 (10th Cir. 1998); 29 C.F.R. § 1630.2(j)(3(i). "If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton, 119 S. Ct. at 2151.
In Sutton, the Supreme Court assumed without deciding that working is a major life activity. 119 S. Ct. at 2151. Defendant does not claim otherwise.
Plaintiff does not allege that defendant perceived that he was unable to perform a broad range of jobs in various classes. Thus, the Court focuses its analysis on whether plaintiff has presented evidence sufficient to support that defendant regarded him as unable to perform a substantial class of jobs.
According to plaintiff, his termination letter of October 5, 1998 demonstrates that the County believed he could not perform "any class of jobs with the department which involved contact with criminals."Plaintiff's Response to Defendant's Motion for Summary Judgment filed May 18, 2000 (Doc. #30), p. 11. Even if this statement is true, plaintiff has not shown that the alleged class of jobs involving "contact with criminals" constitutes a substantial class of jobs, as opposed to "one type of job, a specialized job, or a particular job of choice." See Sutton, 119 S. Ct. at 2151. The EEOC regulations define a "class of jobs" as "[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." 29 C.F.R. § 1630.2(j)(3)(ii)(B). Plaintiff provides no evidence regarding the geographical area to which he has access, or the number and type of jobs demanding similar training from which defendant believed he was also disqualified. See Maxwell v. AmeriCold Logistics L.L.C., Case No. 99-2209-KHV, 2000 WL 210229 *9 (D. Kan. Feb. 8, 2000). Moreover, the fact that defendant offered plaintiff a position as dispatcher suggests that the County did not regard plaintiff as unable to perform a substantial class of jobs. See Hoskins v. Oakland Co. Sheriff's Dept., 44 F. Supp.2d 882, 889 (E.D. Mich. 1999) (apparent that sheriff's department did not regard deputy sheriff as having a substantially limiting disability when it offered deputy sheriff other positions, including dispatcher); Treglia v. Town of Manlius, 68 F. Supp.2d 153, 158 (N.D.N.Y. 1999) (road patrol officer failed to show defendant regarded him as disabled where defendant provided plaintiff another position within the police department). Thus, the Court finds that plaintiff has not presented evidence sufficient to demonstrate that defendant regarded him as disabled within the meaning of the ADA. See Nielson, 162 F.3d at 612 (affirming summary judgment where plaintiff provided no evidence that defendant perceived that he was restricted in his ability to perform either class of jobs or broad range of jobs in various classes); Martin v. State of Kansas, 996 F. Supp. 1282, 1290 (D. Kan. 1998) (evidence that defendant regarded plaintiff as unable to perform functions of correctional officer position failed to establish that defendant regarded him as disabled); Treglia, 68 F. Supp.2d at 158 (defendant's belief that police officer could not wrestle with disturbers of the peace not enough to show that defendant perceived he was precluded from a substantial class of jobs).
Defendant's statements that plaintiff was "disabled" are not sufficient to demonstrate that defendant perceived plaintiff as disabled within the meaning of the statute. See, e.g., Long v. City of Leawood, Case No. 98-3171, 2000 WL 14257 *3 (10th Cir. Jan. 7, 2000) (referring to plaintiff as "one-armed man" not sufficient to show that defendant regarded him as disabled) Hoskins, 44 F. Supp.2d at 889(not enough to show that defendant regarded plaintiff as "disabled" in the colloquial sense).
Moreover, even if plaintiff could show that he is disabled under the statute, he has not produced evidence sufficient to demonstrate that he is qualified. The Tenth Circuit has adopted a two-part 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 concluded 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.White v. York Int'l Corp., 45 F.3d 357, 361-62 (10th Cir. 1995) (quotingChandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993)). Thus, the first step is to identify the essential functions of plaintiff's position as Support Services Lieutenant.
Determining whether a particular function is essential is a factual inquiry. Martin, 190 F.3d at 1130. The ADA provides that "consideration shall be given to the employer's judgment as to what functions of the job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." Id. (quoting 42 U.S.C. § 12111(8)). According to ADA regulations, "[t]he term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires" — it does not include "the marginal functions of the position." 29 C.F.R. § 1630.2(n)(1). In addition, the ADA regulations provide that several factors may make a job function essential, including"the limited number of employees available among whom the performance of that job function can be distributed." 29 C.F.R. § 1630.2(n)(2)(ii). The regulations further provide that evidence whether a particular function is essential includes but is not limited to the following: the employer's judgment and written job descriptions; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; and the work experience of past and current incumbents in the job or in similar jobs. See 29 C.F.R. § 1630.2(n)(3).
Although plaintiff's argument is not entirely clear, he appears to asserts two theories to support his claim that he is qualified for the lieutenant position. First, he maintains that the ability to physically restrain criminals is not an essential function of the position. Second, he declares that he is physically able to restrain criminals. With respect to the first argument, plaintiff claims that he never had to physically restrain any individuals during his tenure as Support Services Lieutenant, and that he spent 95 per cent of his time supervising and only five per cent on non-administrative duties. While past work history and the amount of time spent performing the function are relevant factors, the overwhelming evidence is that the physical restraint of criminals is an essential function of the Support Services Lieutenant position. Plaintiff admits that he was responsible for resolving inmate disturbances in the jail and that he maintained law enforcement duties and was required to assist officers in the field. That plaintiff did not actually have to physically restrain individuals during his tenure does not show that he would not be required to do so in the future. As with the corrections officer position at issue in Martin, it is apparent that an essential function of a sheriff's lieutenant is the ability to perform a wide range of duties. See Martin, 190 F.3d at 1131. An obvious law enforcement duty is to provide safety to the public, as well as to sheriff's office employees and inmates. "[A]s such the ability to provide safety and security, including the ability to respond without hesitation or limitation in an emergency is absolutely inherent to that position." Martin, 190 F.3d at 1131 (analyzing a corrections officer position). Even if he is only infrequently required to exercise them, the potentially dire consequences of a lieutenant not having those capabilities underscores their importance. See Martin, 190 F.3d at 1132. Accordingly, the Court finds that plaintiff has not produced evidence which is sufficient to create a fact issue whether physical restraint of criminals is an essential job function.
Plaintiff also argues that he is physically able to restrain criminals. In support of this argument, however, plaintiff provides nothing more than his personal belief or opinion that he can perform. Plaintiff also states that he has physically restrained patients in his job as security officer without injuring himself; he provides no evidence regarding the circumstances surrounding the alleged restraints, however, and he does not provide medical evidence to rebut Dr. Holscher's opinion that he should not physically restrain criminals. See Martin, 996 F. Supp. at 1292 (subjective belief that plaintiff can perform essential functions insufficient to rebut medical restrictions), aff'd, 190 F.3d at 1133. In addition, plaintiff offers no evidence that he can perform the essential job functions with reasonable accommodation.See, e.g., White, 45 F.3d at 362 (affirming summary judgment where plaintiff offered no evidence as to possible accommodations); see also Martin, 190 F.3d at 1133 (ADA does not require employer to create new position or modify essential function of existing position to accommodate disabled worker). Accordingly, the Court finds that plaintiff cannot show that he is qualified under the ADA.
Plaintiff argues that under Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), defendant cannot rely on the potential for future injury unless it shows a reasonable probability of substantial harm. The Mantolete case is distinguishable, however, because it involved the Rehabilitation Act, which does not provide a statutory definition of the term "qualified handicapped person." See Echazabal v. Chevron USA, Inc., Case No. 98-55551, ___ F.3d ___, 2000 WL 669137, *6 n. 10 (9th Cir. May 23, 2000). Under the ADA, "an employer may take action against an employee who poses a 'direct threat' to the health or safety of other individuals in the workplace." Nielsen, 162 F.3d at 608; 42 U.S.C. § 12113(b). A "direct threat" is defined as "a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation." 42 U.S.C. § 1211(3). It is apparent that a fracture to plaintiff's spine during the restraint of criminals would pose a direct threat to the safety of both the public and other individuals in the workplace. Accordingly, the Court finds that the threat of injury is an appropriate consideration on the facts of this case.
2. Age Discrimination
Plaintiff also asserts that defendant terminated his employment because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. To establish a prima facie case, plaintiff must show that he was (1) within the protected age group when he was discharged; (2) doing satisfactory work (qualified for the position); (3) discharged; and (4) replaced by a younger person (or discharged under circumstances giving rise to an inference of discrimination on the basis of age). See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315-16 (10th Cir. 1999). The Court analyzes ADEA claims under the McDonnell Douglas framework. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 558-59 (10th Cir. 1996). For purposes of its summary judgment motion, defendant assumes that plaintiff has established a prima facie case. Thus, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for terminating plaintiff's employment.Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). As set forth above, defendant's proffered reason, that it terminated plaintiff because he could not physically perform essential job functions, is not discriminatory under the ADA. Thus, the burden shifts to plaintiff to show pretext. Randle, 69 F.3d at 451. To establish pretext plaintiff must show that either that "a discriminatory reason more likely motivated the employer . . . or that the employer's proffered explanation is unworthy of credence."Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Plaintiff argues that the following facts show pretext: (1) Schmidt referred to him as the "crazy old man upstairs"; (2) Schmidt told Courtney and Sullivan that he wanted to get rid of plaintiff; and (3) defendant allowed four younger employees to return to the job after injuries. These facts, however, do not create a genuine issue of material fact on the issue of pretext. Schmidt's alleged reference to plaintiff as the "crazy old man upstairs" is best characterized as a "stray remark" and is not sufficient to create a jury issue on the issue of pretext. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000). In addition, plaintiff provides no evidence regarding when Schmidt made the alleged comments that he wanted to get rid of plaintiff, or that the reason for his desire to get rid of plaintiff was because of his age. Further, the undisputed evidence establishes that the four younger employees had medical releases to return to work without restriction, while plaintiff did not. Finally, as set forth above, plaintiff has failed to show that defendant's proffered reason for the termination is not worthy of credence. Accordingly, the Court finds that defendant is entitled to summary judgment on plaintiff's ADEA claim. No reasonable jury would find for plaintiff on this claim.
IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment (Doc. #24) filed April 19, 2000 be and hereby is SUSTAINED.