Opinion
Case No. 2:02-cv-1342.
November 2, 2004
ORDER AND OPINION
I. INTRODUCTION
Plaintiff Troy Peterson ("Peterson") brings this action to recover against Defendant National Agency Corporation ("NAC") on three claims arising out of Peterson's demotion and ultimate termination as an employee of NAC: (1) retaliation in violation of the Federal Medical Leave Act ("FMLA"); (2) employment discrimination in violation of the Americans with Disabilities Act ("ADA"); and (3) retaliation in violation of the ADA. Before the Court is NAC's Motion for Summary Judgment on all claims. Having considered the parties' arguments, briefs, and the relevant law the Defendant's motion is GRANTED for reasons set forth below.
II. BACKGROUND
Peterson was employed with NAC from December 19, 1998 until November 7, 2000. Peterson was initially hired as a part-time district manager earning $9.50 per hour without benefit entitlements. As part-time district manager, Peterson worked approximately twenty hours per week delivering newspapers to carriers in his district and supervising those carriers to ensure that the papers were delivered to NAC's customers. Part of the job required Peterson to lift and transport newspaper bundles weighing approximately twenty-five pounds each. On May 28, 2000, Peterson was promoted by NAC to full-time district manager earning $11.50 per hour and making him eligible to receive benefits after ninety days of full-time employment. Peterson's duties as full-time district manager were essentially the same as his responsibilities as part-time manager except that the full-time position required Peterson to work forty hours per week and deliver bundles of Sunday newspapers that weighed as much as fifty pounds apiece.
Beginning in May 2000, Peterson experienced health problems for which he sought medical treatment. Peterson's physician diagnosed him with kidney failure and scheduled Peterson to undergo a kidney biopsy and other examinations to treat his condition. These procedures required Peterson to remain in the hospital for several days, resulting in Peterson missing four days of work between June 20, 2000 and June 24, 2000. Upon his discharge from the hospital, Peterson was under a medical restriction that prevented him from lifting any more than twenty pounds for four weeks beginning June 24, 2000.
The day after Peterson was released from the hospital, NAC's human resources manager telephoned Peterson and told him that he had been replaced as a full-time manager and that NAC was moving him back to a part-time manager until he was cleared by his doctor of his medical restrictions. As a consequence of his demotion, Peterson's wages were reduced and he was not eligible to receive benefits. Upon being told of his demotion, Peterson protested, telling the manager that they could "not do this because he was disabled." Peterson requested NAC to accommodate his lifting restrictions and to allow him to remain a full-time manager while he performed all the tasks of the position except those his health limitations would not allow him to carry out. Peterson was informed, however, that he could return as a full-time manager only after securing a medical release that would clear him to return to full-time duty. During the conversation with NAC's human resources manager, Peterson inquired about his eligibility to receive benefits and to take Family and Medical Leave during his recovery. Peterson was told that, while he was not eligible for benefits because he had not been employed for ninety days as a full-time employee, he had automatically been placed on FMLA leave.
NAC claims that it demoted Peterson to part-time because, under his physician-imposed lifting restriction, he could not perform the ordinary duties of his position. Therefore, Peterson's position had to be filled in order to assure the "unfailing delivery of the newspaper."
Approximately three weeks after his kidney operation, on July 11, Peterson informed NAC about his interest in returning to work. NAC asked Peterson if he had secured a doctor's release clearing him to return to his full-time duties. Peterson had yet to do so but informed NAC that he could obtain one if required. At that time, NAC offered Peterson a full-time district manager position in Tooele on condition of Peterson receiving a formal medical release from his doctor. Peterson, however, declined this offer because of his preference to return to his old position, which was closer to his home in Utah County. Three days later, on July 14, Peterson obtained a full medical release from his doctor, which NAC acknowledged receiving on July 26. Upon receiving Peterson's medical release, NAC informed Peterson that it had already filled his old district manager's position in Utah County and that, at that particular time, the only managerial position available was in south Salt Lake. NAC offered Peterson the south Salt Lake position which he turned down because he preferred not to work in Salt Lake. NAC, therefore, offered Peterson a part-time position as a driver until a manager's position in Utah County opened.
Peterson was a resident of Lindon, Utah County. Before his medical problems he managed the Utah County south district which encompassed the area between Provo and Goshen. Tooele is approximately sixty-five miles by road from Lindon.
Peterson claims that he sent the medical release form to NAC on July 14, the same day he acquired it, by placing it in NAC's inter-office mail. NAC, however, claims not to have received it until July 26, after making another request to Peterson for its production.
On August 14, a full-time district manager's position in Utah County opened. NAC offered Peterson this position, which was near his home, in Orem. However, Peterson turned down this offer because, although he had been given a release by his doctor, Peterson stated that he needed to be on a continued lifting restriction for another four weeks to ensure that he would not injure himself. Peterson once again asked NAC if it would accommodate him by allowing him to take the job and perform all of the responsibilities of a full-time manager with the exception of lifting newspapers. NAC informed Peterson that such an arrangement would not work and it would have to find someone else to fill the position in Orem. In the meantime, Peterson remained employed by NAC as a part-time driver.
From August 30 to September 9, Peterson was again hospitalized after receiving emergency heart surgery. As a result of his surgery, Peterson was instructed by his doctors to refrain from driving, lifting anything heavier than ten pounds, and working for eight to twelve weeks.
On November 7, Tim Coles, an NAC district manager, terminated Peterson. Coles fired several NAC employees that day, including Peterson, because "they had not worked for some time," and none of the district managers claimed to have any knowledge of Peterson or his health problems. Peterson's termination report, filled out on November 7, indicated Peterson's termination was made effective as of September 2, which was the ending date of the last pay period in which Peterson had worked. Peterson was sent a termination letter dated November 15 that gave notice of his termination.
On December 4, Peterson brought suit against NAC, alleging the following three claims: (1) retaliation in violation of the FMLA; (2) employment discrimination in violation of the ADA; and (3) retaliation in violation of the ADA.
III. DISCUSSION
After viewing the evidence and drawing all reasonable inferences in the light most favorable to Peterson, the Court finds that Peterson has failed to demonstrate a genuine issue of material fact in his allegations that NAC violated either the FMLA or the ADA through its employment decisions. Therefore, summary judgment in favor of NAC is appropriate. "Summary judgment is proper `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.'" Bower v. Stein Eriksen Lodge Owners Ass'n, Inc., 201 F.Supp.2d 1134, 1137 (D. Utah 2002) (quoting Fed.R.Civ.P. 56(c)). "In applying this standard, the court must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party." Id. (citingMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1552 (10th Cir. 1997)).
A. Peterson's FMLA Retaliation Claim
Peterson claims that NAC wrongfully retaliated against him for taking FMLA medical leave. Under the FMLA, an employee has the right to take 12 weeks of medical leave in any 12-month period and then to be reinstated into the same position he held before taking leave or to an equivalent substitute. 29 U.S.C. §§ 2612(a)(1), 2614(a). An employee's prima facie case for retaliation under the FMLA consists of a showing that (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; and (3) there is a causal connection between the two actions. Morgan v. Hilti, 108 F.3d 1319, 1324 (10th Cir. 1997). While Peterson may satisfy the first two elements in establishing a prima facie case of retaliation, he has failed to produce evidence indicating a causal connection between his decision to take FMLA leave and NAC's decision to demote or terminate him.
Both parties agree that Peterson availed himself of a protected right under the FMLA by taking leave after suffering from health problems. Peterson took leave on two separate occasions. First, he took medical leave after suffering kidney failure on June 20 until approximately July 14, when he received a doctor's release to return to work. He took a second leave from work after receiving heart surgery on August 30. This leave extended until the time NAC terminated his employment.
Peterson argues that his retaliation claim is supported by the fact that NAC (1) demoted him from full-time manager to part-time manager/driver after taking leave; (2) failed to reinstate him to his pre-leave position at the conclusion of his leave; and (3) terminated his employment while he was on leave.
1. Peterson's demotion from full-time employment did not offend the FMLA.
While Peterson was on medical leave, his position was permanently filled and he was moved back to part-time employment. According to Peterson, the fact that he NAC permanently replaced him instead of merely having other NAC employees fill-in for him while he was recuperating is proof of NAC's retaliation. Whether Peterson was replaced permanently or temporarily, however, is irrelevant because the FMLA requires only that Peterson be reinstated to an equivalent position at the end of his leave. The FMLA does not create a right for the employee to retain his position during his FMLA leave nor does it impose a duty on the employer to pay its employee while on leave. 29 U.S.C. § 2612(c). Therefore, the fact that Peterson was "demoted" to part-time or that his pre-leave position was permanently filled does not establish a claim of retaliation because NAC was under no duty to pay Peterson or hold his position open while he was on FMLA leave.
On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. 29 C.F.R. § 825.214(a); see Brown v. J.C. Penny, Corp., 924 F. Supp. 1158, 1163 (S.D. Fla. 1996) (holding there can be no FMLA violation until there is a failure to reinstate the employee at the conclusion of the leave period).
2. NAC offered Peterson an equivalent position after his first FMLA leave.
Peterson alleges that NAC failed to restore him to his pre-leave position or to an equivalent position after his return from kidney illness and thereby violated the FMLA. The Court disagrees. The FMLA does not obligate an employer to restore its employee to his pre-leave position if either the employee is unable to perform the essential duties of that position or the employee refuses to accept an equivalent position. 29 C.F.R. § 825.214(a)(b), see e.g., Hoge v. Honda of America Mfg., 384 F.3d 238, 252 (6th Cir. 2004).
NAC was not obligated to restore Peterson to his full-time position as district manager because at the end of his leave Peterson was unable to fulfill the requirements of the position. The FMLA provides that "if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA." 29 C.F.R. § 825.214(b). Peterson was under a physician-imposed lifting restriction from the time of his original hospitalization on June 20 until NAC received his medical release on July 14, which rendered him unable to perform the lifting tasks of the job. Even after Peterson finally obtained his medical release, there is evidence that Peterson remained physically incapable of performing the duties of a district manager until the time of his rehospitalization. On August 14, Peterson refused NAC's offer to be a full-time manager in Orem because of his own belief that he was not physically ready to return to the job and that he needed another four weeks to recover from his surgery. Peterson's refusal to accept this position because of his own confessed inability to perform the requirements of the position relieved NAC of its obligation to restore him to his district manager's position.
Furthermore, even assuming Peterson was physically capable of performing the duties of district manager after receiving his medical release, the evidence shows that NAC sufficiently complied with FMLA requirements by offering Peterson three different district manager positions upon his return from leave. Peterson, however, turned down each of these positions. Also, there can be no genuine dispute as to the reasonable equivalency of NAC's job offers and Peterson's pre-leave position. All of the offers were for full-time district manager positions, the exact position Peterson held before his leave with the same responsibilities and benefits. Additionally, after Peterson refused NAC's offers in Tooele and Salt Lake County because of his stated desire to work closer to his home, NAC offered Peterson a position in Orem, which would have allowed Peterson to work even closer to his home than his pre-leave position. This offer, however, was also rejected by Peterson.
Peterson contends that NAC never "formally extended" him these offers, but rather only "inquired" about his potential interest in accepting them. However, his position is unsupported, and contradicts his own testimony and NAC's contemporaneous notes, which both indicate that NAC did offer him the positions. The Court cannot accept that a reasonable jury could find otherwise.
Orem is in the same county as his previous position and is closer to Lindon, where Peterson resides.
3. Peterson's termination did not violate the FMLA.
Peterson claims that NAC's decision to terminate him was made in retaliation for exercising his rights under the FMLA. According to Peterson's calculation, he had expended approximately three weeks of FMLA leave recovering from his kidney surgery. This meant that Peterson still had nearly nine weeks of FMLA leave remaining when, on August 30, he suffered his second major health problem, a heart attack requiring emergency heart surgery. As a result of his surgery, Peterson was instructed by his doctors to refrain from driving, lifting anything heavier than ten pounds, and working for eight to twelve weeks. At this point, Peterson used the remaining nine weeks of FMLA leave, which expired on approximately November 1.
Peterson acknowledges that NAC's decision to fire him took place on about November 7, sometime after his leave had expired. However, because the effective date on his termination letter sent by NAC in November stated September 2, Peterson argues that the termination actually took place on September 2, while he was on leave, which violated his rights under the FMLA. The Court does not agree. At the time NAC made the decision to terminate Peterson on November 7, he had already received more than his twelve weeks of allotted leave without returning for work and had remained in off-work status without contacting NAC to be reinstated. "If an employee fails to return to work on or before the date that FMLA leave expires, the right to reinstatement also expires." Hunt v. Rapides Health Care Sys., 277 F.3d 757, 763-64 (5th Cir. 2001). Therefore, Peterson had no right to reinstatement once his FMLA leave had expired in the beginning of November.
Because the effective date on his termination letter sent by NAC in November stated September 2, Peterson alleges that the termination actually took place on September 2, while he was on FMLA leave, which allegedly violated his rights under the FMLA. However, Peterson's right to not be terminated expired before it was violated by any conduct or decision by NAC.
Moreover, the evidence shows that Tim Coles, the NAC manager who made the decision to terminate Peterson, was not aware of Peterson's medical problems. Coles based his termination decision only on his understanding that Peterson had not worked in several weeks. Peterson never contacted anyone in its human resources department about his health condition or interest in returning until long after his termination on November 7. The decision to fire Peterson, therefore, could not have been retaliatory insofar that "a decision maker cannot have been motivated to retaliate by something unknown to him." Strickland v. Water Works Sewer Bd., 239 F.3d 1199, 1208 (11th Cir. 2001) (quoting Brungart v. BellSouth Telecomm. Inc., 231 F. 3d 791, 798 (11th Cir. 2000).
B. Peterson's ADA Discrimination Claim
Peterson next alleges that NAC wrongfully discriminated against him by demoting and then terminating him because of his physical disabilities or health impairments.
The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to . . . job advancement, discharge of employees, employee compensation, job training, and other terms and conditions, and privileges of employment." 42 U.S.C. § 12112(a). To sustain an ADA claim, "an employee must establish that: (1) he is a disabled person within the meaning of the ADA; (2) he is qualified, i.e., he can, with or without reasonable accommodation, perform the essential functions of his job; and (3) the employer terminated him because of his disability." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999).
1. Peterson was not a "disabled individual" under the ADA.
Under the ADA, a disabled person is defined as an individual "(a) [with] a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) with a record of such an impairment; or (c) regarded as having such an impairment." 42 U.S.C. § 12102(2). Peterson claims that he was a disabled individual because he suffered a physical impairment that substantially limited his major life activities and, alternatively, because NAC regarded him as having such a disability even if it is found that he did not suffer from a substantially limiting disability.
Peterson first argues that he is a disabled individual under the ADA due to the fact that he experienced severe health problems, including kidney failure and coronary heart disease, and that these problems substantially limited his major life activities, including his ability to play with his children, change tires, lift objects over twenty pounds, and eat certain foods.
Peterson's health problems, however, do not satisfy the ADA definition of "substantially limiting," since temporary impairments are not generally considered substantially limiting under the ADA. See e.g., Colewell v. Suffolk County Police Dept., 158 F.3d 635, 646 (2d Cir. 1998). Peterson's impairments lasted only several weeks and he was given a full medical release to return to his job only three weeks after his kidney surgery. Therefore, Peterson's health problems did not qualify him as a "disabled individual."
Peterson also argues that, even assuming his health difficulties fall short of being substantially limiting, he still meets the ADA definition of a disabled individual because NAC regarded him as being disabled. A plaintiff may qualify as a disabled individual under the "regarded as" subsection of the ADA if either an employer mistakenly believes that its employee has a substantially limiting disability, or if an employer "mistakenly believes that an [employee's] actual nonlimiting impairment substantially limits [the employee in] one or more major life activities." Rakity v. Dillon Cos., Inc., 302 F.3d 1152, 1162 (10th Cir. 2002) (quoting Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999)). Peterson alleges that NAC regarded him as having a substantially limiting disability after being hospitalized for kidney illness. Peterson, however, offers very little evidence in support of his claim. Peterson only points to the fact that his position was permanently filled by another employee after he took leave, which, according to Peterson, shows that NAC treated him as if his disability was going to have a "substantial and long-term impact on his abilities." According to Peterson, had NAC believed his condition was less severe, it would have simply called upon other employees to fill in for him as needed.
The evidence, however, shows that NAC offered Peterson management positions both before and after his health problems, which contradicts the notion that NAC mistakenly believed that Peterson was disabled or unable to perform his job effectively. As NAC points out, if anyone doubted Peterson's physical capacity, it was Peterson, who turned down a full-time position after receiving a full medical release because he believed he was not yet ready to return to work. Furthermore, there is no evidence to suggest that NAC filled Peterson's position for any reason other than its newspapers needed delivery on a daily basis, which required hiring a new district manager to do the job.
(2) Peterson was not a "qualified individual" under the ADA.
The ADA does not cover every individual with an impairment who suffers an adverse employment action. Sutton, 527 U.S. at 471. Rather, the ADA prohibits discrimination by an employer "against a qualified individual with a disability because of that disability." 42 U.S.C. § 12112(a). The Tenth Circuit has adopted a two-part test for determining whether a person is qualified under the ADA.
First, [the Court] examine[s] whether the individual can perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if [the court] conclude[s] that the individual is not able to perform the essential functions of the job at issue, [it] must determine whether any reasonable accommodation by the employer would enable [the employee] to perform those functions.Anderson, 181 F.3d at 1175 (citing Milton v. Scrivner, 53 F.3d 1118, 1123 (10th Cir. 1995).
Peterson argues that at all times during his employment with NAC he was qualified to perform the essential functions of the district manager position. After his first surgery, Peterson received a full medical release that allowed him to work without restrictions. Peterson claims that NAC discriminated against him because they regarded him as being disabled even after receiving the medical release by replacing him and demoting him to another position notwithstanding his ability to perform the job. Peterson admits that his health limitations prevented him from being able to carry out any newspaper lifting tasks. However, Peterson argues that lifting newspapers is not an essential function of the position. Peterson references NAC's posted job description for district manager which lists several requirements other than weightlifting, such as communication and management skills, record-keeping, customer service, and training and support. Because Peterson could fully perform all of these other functions of the position, he argues he was capable of performing the essential functions of a full-time district manager. Alternatively, Peterson argues that even if weightlifting is considered an essential function of the position, he could have performed the lifting requirements with a reasonable accommodation from NAC. Peterson claims that he could have handled the lighter lifting tasks while allowing a driver to help him with the heavy lifting requirements.
The Court finds, however, that Peterson fails to create a genuine issue of material fact as to whether Peterson was able to perform the essential functions of the job of district manager. Lifting weight is an essential task of the district manager position. District managers are responsible for getting the newspapers to the carriers so that they can be delivered. This requires regular lifting of newspaper bundles weighing twenty-five to fifty pounds. NAC expressly sets forth in its job description that one of the requirements of the position is the "ability to lift 50 lbs. frequently." Even Peterson admitted that lifting constituted one-third to two-thirds of his job. Peterson, however, could not perform this requirement. From June 20 to July 14, he was restricted by his doctor from lifting over twenty pounds. Even after that time, Peterson admitted he still could not lift the bundles when he declined NAC's August 14 offer to be reinstated as a full-time district manager.
Furthermore, Peterson's request for an accommodation to have a driver perform the lifting is unreasonable because it would have fundamentally changed the job. "It is the employer's province to define the job and the functions required to perform it." Id. at 1177. One of the requirements of the district manager position, as set forth in NAC's job description, is the ability to lift fifty pounds frequently. Part of the responsibilities of a NAC district manager is ensuring that bundled newspapers are properly delivered to carriers so that they can be delivered to NAC's customers. It would seem untenable to eliminate this task from the district managers duties without fundamentally altering the nature of the job. Both the posted job description provided by NAC and Peterson's testimony demonstrate that lifting was a substantial and material part of the district manager's position. The Tenth Circuit has "consistently held . . . that an employee's request to be relieved from an essential function of [his] job is not, as a matter of law, a reasonable or even plausible accommodation." Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004) (internal citations omitted).
3. Peterson was not fired because of his alleged disability.
Peterson claims that NAC demoted and ultimately terminated him because of his alleged disability. Peterson references his exemplary employee standing and his merit based promotion prior to his hospitalization as evidence inferring that NAC demoted and fired him solely as a result of his health limitations.
The evidence indicates, however, that NAC's decision to terminate Peterson's employment was based upon his prolonged absence from work and not because of Peterson's disability or any perceived inability to perform his job. Furthermore, Tim Coles, the NAC manager who made the termination decision, did not have any knowledge of Peterson's medical condition and based his decision solely on the fact that Peterson was on a list of employees who had not worked for several weeks. NAC could not have fired Peterson because of his disability if it did not have knowledge of his disability.
C. Retaliation in Violation of the ADA
Peterson alleges that NAC's decisions to demote and terminate him were made in retaliation for seeking the protection of the ADA. To make a prime facie showing of retaliation under the ADA, "an employee must show that (1) he engaged in a protected activity; (2) he was subjected to adverse employment action subsequent to or contemporaneous with the protected activity; and (3) a causal connection existed between the protected activity and the adverse employment action." Morgan, 108 F.3d at 1323-24.Peterson claims that he engaged in protected activity by protesting his demotion from full-time to part-time manager. Upon being told of his demotion, Peterson told NAC's human resources manager that he was "disabled, and that she could not do this." Peterson alleges that as a result of this complaint, NAC retaliated against him.
The Court finds that even if Peterson engaged in a protected activity by complaining about his demotion, Peterson's complaint under the ADA still fails because he cannot show a causal connection between his protected activity and the adverse employment action taken by NAC. To establish such a causal connection, Peterson must provide some evidence that his disability was a determining factor in NAC's decision to terminate him. See e.g., Bones v. Honeywell Inetern., Inc., 366 F.3d 869, 878 (10th Cir. 2004). An employee's "bare testimony" speculating that he was fired because of his alleged disability "does not suffice to create a genuine issue of material fact as to causal connection." Id. at 879. "To defeat a motion for summary judgement, evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise." Id. at 869. Peterson fails to offer any connection between his statement to a NAC manager that he believed his demotion was unfair to NAC terminating him because of his allegedly ADA invoking statement.
Furthermore, "an employee cannot state a cause of action for disability discrimination when his employer terminated him for reasons unrelated to a disability." Id. Tim Coles, the manager who made the termination decision, had no knowledge of Peterson's medical condition or of the fact that Peterson had exclaimed to an NAC manager that he could not be demoted because he was disabled.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant's Motion for Summary Judgment.