Opinion
Case No. 2:00-CV-896 TC
November 12, 2003
ORDER
In this employment discrimination case, Plaintiff Sherm E. North, a former employee of Defendant Kennecott Utah Copper Corporation ("Kennecott"), claims Kennecott illegally fired him from his job as a haulage truck driver at Kennecott's copper mine because he is disabled. Mr. North, who has been diagnosed with depression and Attention Deficit Hyperactivity Disorder ("ADHD"), has difficulty sleeping. Mr. North also claims that when he first applied for his job, Kennecott violated the law by requiring him to submit to an unlawful medical examination before giving Mr. North a job offer.
Mr. North originally asserted four causes of action against Kennecott in his Complaint. Because he voluntarily dismissed his third and fourth causes of action on August 23, 2002, only the first and second causes of action remain. In his first cause of action, Mr. North alleges unlawful medical examination in violation of the Americans with Disabilities Act, 42 U.S.C § 12101 et seq. ("ADA").
In his second cause of action, he alleges disability discrimination in violation of the ADA.
Kennecott has filed a motion seeking summary judgment on Mr. North's remaining causes of action. Kennecott asserts that the court lacks subject matter jurisdiction over Mr. North's first cause of action because Mr. North did not exhaust his administrative remedies. As for Mr. North's second cause of action, Kennecott argues that he cannot establish a prima facie case of disability discrimination. Specifically, Kennecott contends that Mr. North cannot establish that he is disabled within the meaning of the ADA or that he was discriminated against because of a disability, Moreover, Kennecott continues, even if Mr. North could establish a prima facie case, he has provided no evidence that Kennecott's articulated legitimate business reason for his discharge (that Mr. North falsified his employment application and medical questionnaire) is a pretext for disability discrimination.
Kennecott has also filed a motion to strike the expert report of Mr. North's expert witness, William P. Anthony, The court postponed the hearing on Kennecott's motion to strike pending the outcome of Kennecott's Motion for Summary Judgment. Because the court finds that Kennecott is entitled to summary judgment, this Order also disposes of Kennecott's Motion to Strike.
For the reasons set forth below, Kennecott's Motion for Summary Judgment is GRANTED. Kennecott's Motion to Strike the Expert Opinion of William P. Anthony is DENIED as moot.
I. BACKGROUND
The material facts are not disputed.
Mr. North has been diagnosed with depression and Attention Deficit Hyperactivity Disorder ("ADHD"). He claims that these illnesses interfere with his ability to sleep. Mr North has been taking sleep medication on and off since 1996. He acknowledges that he sleeps better when he takes medicines such as Trazodone or Zyprexa. Mr. North averages from two to possibly six hours a night of sleep when he is taking his medication. Mr. North can take a higher dosage of his sleep medication when he needs it to get more sleep. But he does not like to do this because it causes him to "oversleep." (Def.'s Mem. in Supp. of Mot. for Summ. J. ¶ 64 (citing North Depo, at 26),) Mr. North's sleep difficulties have not caused him any health problems and he is fully able to take care of himself. Mr. North admits that his sleeping problem does not affect any area of his life, except that it makes him irritable and reduces the time he spends in bed with his wife.
After losing his job at Kennecott, Mr. North obtained a job as a custodian with the Granite School District in May 2000. In July 2000, Mr. North was promoted to Head Custodian, a position he still holds today. He acknowledges that his sleeping problem does not affect his ability to work and that his ability to work has never been restricted due to any mental or physical condition. He does not require any special accommodation because of any mental or physical condition. Not only is Mr. North able to work without difficulty, he barbecues, socializes with family and friends, water skis, boats, goes fishing, and plays sports, including basketball,
correct, and complete; and I understand that any misleading information, omission, or falsification of this information is grounds for rejection of this application or my dismissal from employment, . . .
CONSENT: I hereby consent to a pre-employment, post-offer medical examination and inquiries, and a pre — or post-employment offer alcohol, drug, and substance screening, and I understand that any offer of employment will be contingent upon satisfactory results of such examination inquiries and screening.
(Id. (emphasis added).) Mr. North signed the application.
In April 1999, Vedel Welch, a Kennecott representative responsible for recruiting and hiring haulage truck drivers, interviewed Mr. North. Following the interview, Mr. Welch offered the job to Mr. North, and Mr. North accepted.
The parties dispute the date that Kennecott actually made the job offer to Mr. North. The dispute is not material for purposes of this analysis. The court need not reach the issue of whether Kennecott administered the medical exam and questionnaire to Mr. North before rather than after a job offer, because the threshold issue of subject matter jurisdiction is dispositive. See, infra, Part II.B.
Kennecott sent Mr. North for a physical examination on May 20, 1999, where he also filled out a required medical questionnaire. The instructions to Mr. North at the beginning of the medical questionnaire read as follows:
You must answer all questions and items. Failure to comply can result in withdrawal of your job offer or termination of your employment,
(Ex. B to Mem. in Supp. of Def.'s Mot. for Summ. J. (emphasis added).)
The medical questionnaire required Mr. North to "[l]ist your previous jobs in chronological order starting with your first job." (Id.) Mr. North failed to list several employers on the questionnaire.
The medical questionnaire further directed the applicant to list all past diseases or illnesses that required medical treatment or care and all past hospitalizations. Even though Mr. North was diagnosed in 1996 by a psychiatrist as having ADHD and depression, the only past disease or illness he put on the medical questionnaire was a hand laceration suffered as a child. Additionally, Mr. North had been hospitalized in 1997 and 1998 for depression, but he failed to disclose those hospitalizations on the medical questionnaire. Finally, the medical questionnaire required Mr. North to check all medical conditions (a list of possible medical conditions was printed in the questionnaire) from which he suffered at that time. Mr. North failed to check the box for "Depression."
Mr. North began working for Kennecott on June 15, 1999. Six months later, in December 1999, Mr. North asked one of his supervisors, Richard Petersen, if Kennecott had a program that could help him with family problems. Mr. North told the supervisor that he had a problem with depression during the holidays.
In a later meeting with Petersen and another of Mr. North's supervisors, Gary Curtis, Mr. North told them that he had been on medication prescribed in the past by a psychiatrist for depression. The supervisors scheduled an appointment for Mr. North with Dr. Paul Harris at the Kennecott medical clinic. At the clinic, Mr. North met with Dr. Harris and Kim Moulton, Kennecott's Manager of Medical Services. Mr. North was questioned about his failure to disclose his problems with depression and his medical history.
Soon after Mr. North disclosed his medical problems, Kennecott temporarily removed Mr. North from his job duties and sent Mr. North a Notice of an Investigation and Hearing. The Notice stated that the investigation and hearing would address the following matter:
Investigating inconsistencies in your completion of employment documents[;] potential violation of [Kennecott] Code of Conduct — falsifying co. records or making false statements or reports concerning co. business, including false wage or benefit claims.
(Ex. D to Mem. in Supp. of Def.'s Mot. for Summ. J.)
At the hearing, Mr. North admitted that he had failed to disclose certain employers on his employment application and that he did not list his depression or medical history concerning his mental health problems on the medical questionnaire.
According to Kennecott, Kennecott "has a policy of terminating personnel who falsify statements to it." (Ex. P to PL's Mem, in Opp'n to Def.'s Mot. for Summ. J, at 2.) Mr. North does not dispute this. Kennecott's policy, as articulated in Kennecott's General Code of Conduct, states that an employee may be subject to discipline, up to and including termination, for violation of the code. Violations of the general code of conduct include "[f]alsifying company records or making false statements or reports concerning company business, including false wage or benefit claims." (Ex. E to Mem. in Supp. of Def.'s Mot. for Summ. J.) Kennecott maintains that the policy is "also reflected in such business forms completed by [Mr. North] such as the Employment Application and the Medical Questionnaire." (Ex. P to Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. at 2 (internal citations and footnotes omitted).)
Following the hearing, Kennecott notified Mr. North that his employment with Kennecott was terminated, effective immediately. Kennecott gave as the reason for the termination that Mr. North had "intentionally omitted certain information from employment records [i.e, his employment application and the medical questionnaire] which is a falsification of those records." (Ex. F, to Mem. in Supp. of Def.'s Mot. for Summ. J.)
Tom Lohrenz, Kennecott's Senior Employee Relations Representative, is the person who terminated Mr. North's employment. During a state agency administrative hearing regarding Mr. North's claim for unemployment benefits, Mr. Lohrenz testified regarding some of Kennecott's concerns. According to Mr. Lohrenz, the Kennecott medical staff explained to him that Mr. North's history of depression and attempted suicide was important for Kennecott to know because Mr. North, "in his position as a truck driver of an extremely large haulage truck could've endangered not only the safety of himself but the safety of others that he worked with," (Ex. B to Def.'s Reply Br. at 12.) Mr. Lohrenz further explained that this information was important given that "operating these large pieces of equipment that are the size of a small house" could do severe damage. (Id.)
On or about March 14, 2000, Mr. North filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). In the Intake Questionnaire that he completed and filed with the EEOC, he made the following complaint:
In December of 1999, 1 went to one of the bosses at the mine and explained that I would need to be taking some medication. After being asked what for I told him, I was ask[ed] to retell this issue to another boss. I was then sent to the company clinic to see a doctor and get help. My wife and I went to the clinic together and two of the company doctors told me that 1 might be in violation of company policy for not disclosing past medical information. A week later I was asked not to come back to work. A hearing was held and a week later I was terminated because I told the company of my disability.
(Ex. M to PL's Mem. in Opp'n to Def.'s Mot. for Summ. J. at 3.) Mr. North further stated that the reason offered by Kennecott for terminating his employment was that:
The company told me that I did not disclose or let them know of a disability I had previously had. They said I had falsified my application by not making the company aware of this.
(Id. at 4.) In the formal Charge of Discrimination, under the "Particulars" portion of the form,
Mr. North claimed:
Personal Harm: On or about December 23, 1999, 1 disclosed information regarding my medical condition to Richard Peterson, Foreman. On January 26, 2000, 1 was discharged from my position as Haulage Driver.
Respondent's Reason for Adverse Action: I was told I had falsified information on my employment application.
I believe I have been discriminated against because of my disability in violation of the Americans with Disabilities Act of 1990 (ADA), as amended.
(Ex. G to Mem. in Supp. of Def/s Mot. for Summ. J.)
On April 17, 2000, Kennecott filed a "statement of position" with the EEOC in response to Mr. North's Charge of Discrimination. Kennecott's statement did not address any allegation of an unlawful medical examination. The statement focuses solely on Mr. North's claim that Kennecott discriminated against him by terminating his employment based on a disability, (See Ex. P to PL's Mem. in Opp'n to Def.'s Mot, for Summ. J.)
The EEOC sent Mr. North a letter informing Mr. North of his right to sue. Mr. North then timely filed this lawsuit against Kennecott.
II. ANALYSIS
A. Legal Standard
Under Federal Rule of Civil Procedure 56, a court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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);see Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250-51 (1986); Adler v. Wal-Mart Stores. Inc., 144 F.3d 664, 670 (10th Cir. 1998). B. Mr. North's ADA Claim for Unlawful Medical Examination
A federal court lacks subject matter jurisdiction over an ADA claim if the claimant has failed to exhaust administrative remedies, Davidson v. American Online. Inc., 337 F.3d 1179, 1183, 1183 n. 1 (10th Cir. 2003) (administrative filing with EEOC is pre-requisite to civil suit under ADA); Seymore v. Shawyer Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997) ("Federal courts lack jurisdiction to entertain Title VII claims unless such claims were previously filed with the [EEOC]").
In order to exhaust his administrative remedies, Mr. North, as claimant, must file a timely charge of discrimination with the EEOC providing adequate notice to his employer and an opportunity to the EEOC to resolve the dispute. Seymore, 111 F.3d at 799. Kennecott argues that Mr. North never filed a claim asserting unlawful medical examination with the EEOC. Mr. North disagrees and points to the generic language in his March 14, 2000 Charge of Discrimination, which states:
Personal Harm: On or about December 23, 1999, I disclosed information regarding my medical condition to Richard Peterson, Foreman. On January 26, 2000, 1 was discharged from my position as Haulage Driver.
Respondent's Reason for Adverse Action: I was told I had falsified information on my employment application.
I believe I have been discriminated against because of my disability in violation of the Americans with Disabilities Act of 1990 (ADAX as amended.
(Ex. G to Mem. in Supp. of Def's Mot. for Summ. J. (emphasis added).)
Mr. North's Charge of Discrimination "must be liberally construed in order to accomplish the purposes of [the ADA], since such complaints are written by laymen not versed either in the technicalities of pleading or jurisdictional requirements of [the ADA]." Gonzalez-Aller Balseyro v. GTE Lenkurt. Inc., 702 F.2d 857, 860 (10th Cir. 1983) (internal citation omitted). But "the liberal construction to be given to charges filed by lay complainants pertains to legal and procedural technicalities. It cannot extend to include facts and claims not alleged." Jones v. Sumser Retirement Village, 209 F.3d 851, 854 (6th Cir. 2000). Even reading the contents of the Charge in a light favorable to Mr. North, his general allegation of disability discrimination is insufficient to satisfy the exhaustion requirement for his unlawful medical inquiry claim.
No reasonable reader of Mr. North's Charge would understand Mr. North's claim to include an allegation of unlawful medical examination. There is no indication whatsoever that Mr. North was complaining of Kennecott's requirement that he complete a medical questionnaire and submit to a physical exam on May 20, 1999, or that he was required to disclose his medical history in order to get the job. Instead, his Charge focuses on a discrete employer action that occurred more than six months later: Kennecott's termination of his employment on January 26, 2000. Without some language in the Charge alluding to the fact and timing of Kennecott's inquiries into Mr. North's medical history, it is not possible to infer a claim that Kennecott subjected Mr. North to a pre-offer medical exam.
Mr. North also relies on allegations contained in his EEOC intake questionnaire to support his position. See supra Part I.B. It is appropriate for the court to consider the content of Mr. North's intake questionnaire, which is more detailed than his Charge of Discrimination, to the extent it "clarifies" or "amplifies" the general allegations contained in Mr. North's Charge. See, e.g., Cheek v. Western So. Life Ins. Co., 31 F.3d 497, 502 (7th Cir. 1994);McDonald v. Corrections Corp. of America, 181 F. Supp.2d 1274, 1278 (D.N.M. 2002). However, the language in his intake questionnaire does not reference a pre-offer medical examination. The court's conclusion is not changed by the language in Mr. North's intake questionnaire.
Mr. North points to a narrow exception to the exhaustion requirement to transform his unexhausted claim into a proper claim. In Simms v. Oklahoma, 165 F.3d 1321 (10th Cir. 1999), the Tenth Circuit recognized a limited exception to the exhaustion requirement that has been extended to ADA claims. See also Thompson v. KN Energy, Inc., 177 F. Supp.2d 1238, 1255 (D. Kan. 2001). An unexhausted claim may be asserted in a civil action "when [it] is for `discriminationlike or reasonably related to the allegations of the EEOC charge.'" Simms, 165 F.3d at 1327 (internal citation omitted) (emphasis added). This exception, however, only applies to claims that arise after the date the original EEOC Charge was filed. See id ("[W]here a [discriminatory] act occurs prior to the filing of a charge and the employee fails to allege the [discriminatory] act or a [discrimination] claim in the subsequent charge, the [discriminatory] act ordinarily will not reasonably relate to the charge") (internal citations omitted; emphasis in original): see also McDonald v. Corrections Corp. of America, 181 F. Supp.2d 1274, 1279 (D.N.M. 2002) ("[I]f the unexhausted discriminatory act occurs prior to the EEOC filing, and plaintiff fails to allege the act or claim in the charge, the act or claim ordinarily will not reasonably relate to the charge").
Mr. North's unlawful medical exam claim cannot fall within the above exception. The physical exam and medical inquiries occurred before Mr. North filed his EEOC Charge. See Simms, 165 F.3d at 1327-28 (holding that alleged unlawful act that occurred before filing of the charge, but not specifically alleged in the charge, does not reasonably relate to the charge). Also, the claim for unlawful pre-offer medical inquiries has an entirely different statutory basis and different elements than a claim of disability discrimination. Compare 42 U.S.C. § 12112(d) (improper medical inquiries) and § 12112(a) (discrimination based on a disability). In particular, a violation of the ADA's pre-offer medical inquiry provision can be brought by non-disabled job applicants as well as disabled ones. Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1228-29 (10th Cir. 1997).
The case of Mayers v. Washington Adventist Hospital, 131 F. Supp.2d 743 (D, Md., 2001) is instructive here. In Mayers, the court held that a general allegation of disability discrimination was insufficient to satisfy the ADA's exhaustion requirement for an accommodation claim. The plaintiff in Mayers stated in her charge that "I believe I was discriminated against because my employer regarded me to have a disability, in violation of the [ADA]."Mayers, 131 F. Supp.2d at 747. The Mayers court found that the charge provided no factual predicate to support a reasonable accommodation claim (which plaintiff later asserted in her federal lawsuit) because it was "completely devoid of any reference to her alleged request for accommodation. . . ."
The plaintiff in Mayers described the timing and circumstances of her discharge and confined the dates of the alleged discrimination to the day of her discharge. She did not address the timing or circumstances of her alleged accommodation claim. Here, as inMayers, Mr. North's Charge contained no reference to the timing or circumstances of the alleged pre-offer physical exam and medical inquiries. His charge is limited to the events surrounding his termination in January 2000. His claim for unlawful medical exam does not reasonably relate to his independent claim for disability discrimination.See Jones v. Sumser Retirement Village, 209 F.3d 851, 853-54 (6th Cir. 2000) (holding that claimant's accommodation claim was not reasonably related to claimant's disability discrimination charge because claimant did not, among other things, explicitly state in the charge the date or fact of employer's alleged failure to accommodate).
C. Mr. North's Claim of Disability Discrimination
To maintain an action under the ADA for disability discrimination, Mr. North must first show that he is a disabled person within the meaning of the ADA, See Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1109 (10th Cir. 1999) (listing elements of prima facie case under ADA). The ADA defines disability as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2) (2003).
Kennecott argues that Mr. North's claim must be dismissed because he cannot establish that he is disabled and entitled to protection of the ADA. Mr. North responds that he is, in fact, disabled, or in the alternative, that Kennecott regarded him as disabled.
1. Actual Disability
Mr. North cannot show that he is actually disabled under 42 U.S.C. § 12102(2)(A), because he is not substantially limited in any major life activity, In order for a physical or mental impairment to be "substantially limiting," the individual must be:
Kennecott concedes that Mr. North has a mental impairment. (See Def.'s Mem. in Supp. of Mot. for Summ. J. at p. v ¶ 16.)
(i) unable to perform a major life activity that the average person in the general population can perform; or
(ii) significantly restricted as to the condition, manner or duration under which an individual can perform a major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.Pack v, K-Mart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999) (quoting 29 C.F.R. § 1630.2(j)(1)). "A `major life activity' is a basic activity that the average person in the general population can perform with little or no difficulty," Id.
Mr. North claims that he is substantially limited in the major life activity of sleeping. Sleeping, as a matter of law, is a major life activity. Id. In order to establish that he is substantially limited in the major life activity of sleeping, Mr. North must show that he is unable to sleep, or is significantly restricted as to the condition, manner or duration of his ability to sleep as compared to the average person in the general population, taking into consideration the effect of any mitigating or corrective measures, such as medication.Id. at 1305-06.
Mr. North asserts that because he was not taking his medication at the time he was discharged, he should be evaluated in his unmedicated state and that he is "disabled" when he is not taking his sleeping medication. This argument is in conflict with the controlling law. Mr. North's sleeping habits must be evaluated when he is taking his medications.Sutton v. United Airlines. Inc., 527 U.S. 471, 475, 482 (1999);Murphy v. United Parcel Service, 527 U.S. 516, 521 (1999);Pack v. K-Mart Corp., 166 F.3d 1300, 1305-06 (10th Cir. 1999).
Mr. North testified in his deposition that he averages anywhere from two to six hours of sleep a night, and gets approximately five hours of sleep on a good night. It is uncontested that his sleep medication is effective, and that he sleeps better when he takes it. Further, Mr. North acknowledged in his deposition that although he could take a higher dose of his sleep medication, he chooses not to do so because this causes him to "oversleep," i.e., to sleep longer than he wants.
The evidence also proves that Mr. North's sleep problem has had no adverse impact on his life, except that it makes him more irritable. Mr. North's sleep problems have not affected his ability to work, to take care of himself, to engage in recreational activities, or to socialize with his friends and family.
The factual background here is similar to that of other cases from this jurisdiction which rejected plaintiff's contention that he or she was substantially limited in the major life activity of sleeping. For example, like Mr. North, the plaintiff in Pack v. K-Mart Corp., 166 F.3d 1300 (10th Cir. 1999), alleged that her depression substantially limited the major life activity of sleeping. She testified that "sometimes I wouldn't get but maybe two, three hours at the most sleep all night long." Id. at 1306. She also testified, as did Mr. North, that the sleep medication she was prescribed improved her ability to sleep, and that she had to cut back on the amount of medication she was taking because it "makes her too sleepy." Id. The Court of Appeals for the Tenth Circuit held that this evidence was insufficient to satisfy plaintiff's burden to establish that she was substantially limited in the major life activity of sleeping.
The plaintiff in Doyal v. Oklahoma Heart. Inc., 213 F.3d 492 (10th Cir. 2000), also claimed that her depression substantially limited the major life activity of sleeping. In Doyal the plaintiff maintained that "[f]requently I would sleep only one to three hours a night." 213 F.3d at 497. She also stated she began taking medication to help her sleep and that "sometimes the medication would help and sometimes it didn't" and that she "was having a very hard time getting the sleep even with [her] medication."Id. She was diagnosed as suffering from insomnia for two years.Id. The Tenth Circuit held that the foregoing evidence was insufficient to show that plaintiff was substantially limited in the major life activity of sleeping.
Finally, in Steele v. Thiokol Corp., 241 F.3d 1248 (10th Cir. 2001), Mr. Steele claimed that as a result of depression, he was substantially limited in the major life activity of sleeping. But there was no evidence that Mr. Steele's sleep problem interfered with his work capabilities or that it affected his overall health in a severe or permanent manner. Id. at 1254. The Tenth Circuit held that the "district court correctly concluded that there was insufficient evidence that [plaintiff's] major life activity of sleeping was significantly limiting to survive summary judgment." Id.
Mr. North cannot show that he is substantially limited in performing the major life activity of sleeping. Accordingly, he is not disabled within the meaning of 42 U.S.C. § 12101(2)(A).
2. Regarded as Disabled.
In the alternative, Mr. North claims that he is disabled under 42 U.S.C. § 12102(2)(C) because Kennecott regarded him as having an impairment that substantially limits the major life activity of working. There are "two ways an individual may qualify for protection under this subsection: `(1) a covered entity mistakenly believes that a 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.'" Rakity v. Dillon Companies. Inc., 302 F.3d 1152, 1162 (10th Cir. 2002) (quoting Sutton v. United Air Lines. Inc., 527 U.S. 471, 487 (1999)). To prevail on this claim, Mr. North must show that Kennecott regarded him as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities."Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999) (quoting 29 C.F.R. § 1630.2(j)(3)(i)).
To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice, 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.Id. at 492 (emphasis added). An employer is "free to decide that some limiting, but not substantially limiting, impairments make individuals less ideally suited for a job." Id. at 490-91 (emphasis in original).
Here, Mr. North claims that Kennecott regarded him as unfit "to engage in the general job function of commercial driving." (PL's Mem. in Opp'n to Def.'s Mot. for Summ. J, at 12.) The evidence in the record, specifically the testimony of Tom Lohrenz, who terminated Mr. North's employment, does not support Mr. North's assertion.
Mr. Lohrenz testified that Mr. North's history of depression and attempted suicide was significant to Kennecott to know because Mr. North, "in his position as a truck driver of an extremely large haulage truck could've endangered not only the safety of himself but the safety of others that he worked with." (Ex. B to Def.'s Reply Br. at 12.) Mr. Lohrenz further explained that this information was important given that "operating these large pieces of equipment that are the size of a small house" could do severe damage. (Id.)
At most, this evidence shows only that Kennecott considered Mr. North unable to perform the specific job of haulage truck driver.
Mr. North has failed in his burden to provide sufficient evidence that could convince a trier of fact that he is disabled within the meaning of the ADA. Consequently, Mr. North cannot establish a prima facie case of discrimination disability and Kennecott is entitled to summary judgment on Mr. North's second cause of action.
ORDER
For the foregoing reasons, the court ORDERS:
1. Kennecott's motion for summary judgment is GRANTED.
2. Kennecott's motion to strike the expert opinion of William P. Anthony is DENIED as moot.