Opinion
Cause No. IP99-0214-C-T/G
July 21, 2000
A. Patricia Diulus-Meyers, Jackson, Lewis, Schnitzler Krupman, Pittsburgh, PA., for Plaintiff.
Roberta Sabin Recker, Baker Daniels, Indianapolis, IN., for Defendant.
Entry Discussing Defendant's Motion for Summary Judgment
The Plaintiff, Rebecca Vidovich-Gagnon, brings this action against the Defendant, American Trans Air, Inc. ("ATA"), alleging that the Defendant discriminated against her by terminating her employment because of her disability in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and because of her sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. This matter comes before the court on ATA's Motion for Summary Judgment, pursuant to FED. R. CIV. P. 56. Having considered the Motion and the submissions of both parties, the court decides as follows.
I. Background Facts
Only those facts necessary for context or the disposition of this Motion are discussed here. Where the parties dispute a fact, the dispute is either noted, or the fact is presented according to the evidence submitted by the Plaintiff. See Summary Judgment Standard, infra.
The Plaintiff was employed by ATA as a part-time Customer Service Agent (CSA) from April 29, 1996, through November 15, 1996. (Vidovich Dep. at 52, Ex 6.) CSAs assist passengers with check-in, boarding, arrival, and baggage service at several stations located in the airport terminal, including ticket counters, gate areas, and baggage claim areas. (Id. at 130, Ex. 8.) Check-in duties involve frequent bending to tag luggage and lifting luggage onto a conveyor belt located behind the ticket counter. (Id. at 136, 139-41, 144, Ex 8.) Passenger baggage can weigh fifty pounds or more. (Id. at 142.) CSA duties may involve bending and lifting during boarding and arrival at the gate, particularly when assisting elderly or disabled passengers; however, duties performed at the gate counter are less likely to involve bending or lifting. (Id. at 154, 157, 174.) Baggage service duties require frequent bending and lifting as CSAs assist passengers with retrieval of baggage from the baggage carousel, and they move unclaimed baggage from the carousel to the baggage service office. (Id. at 162-64.)
CSAs are assigned to check-in, boarding, arrival, and baggage service duties for each arriving and departing flight on a daily schedule. (Id. at 183, Exs. 9-11.) CSAs exhibiting the most "hustle" are assigned more often to the ticket counters where the work pace is faster, and only in the case of four male individuals did the Plaintiff believe assignments were based on gender. (Id. at 323-24, 329, 350-51.) ATA requires all CSAs to be available for, and capable of performing, check-in, boarding, arrival, and baggage service duties because flight schedule changes, delays, gate changes, and cancellations, may require CSAs to deviate from the daily schedule and cover other stations as needed. (Id. at 330, Ex. 8.)
Ms. Vidovich-Gagnon stated that she believed these four males were given gate assignments because of their gender because of "what they had told [her]" and that they tended to work only the gates and not the ticket counters. (Id. at 351.) However, she had previously testified that these four CSAs would stand around talking at the ticket counters while "it was mainly the women that were hustling," and noted that it was the "relaxed appearance" of these four males that ATA did not find proper for work at the ticket counters. (Id. at 323.) Other male CSAs were assigned to the ticket counter. (Id. at 323-24.)
Prior to Ms. Vidovich-Gagnon's employment at ATA, she participated in a group interview, during which the CSA job expectations were discussed, including check-in, boarding, arrival, and baggage service duties. (Id. at 70, 87, 90-91, Ex. 2.) The Plaintiff understood that one of the minimum requirements of her job was the ability to routinely lift either fifty or seventy pounds, and at the time of hiring she identified no physical limitations that would prevent her from lifting baggage or wheelchair-bound passengers. (Id. 112-13, 125-26, Ex. 8.) On August 2, 1996, while performing arrival duties at the gate, Ms. Vidovich-Gagnon injured her back assisting a wheelchair bound passenger from his seat to his wheelchair. (Id. 194, 196-98.) She returned to work on August 4th with temporary medical restrictions requiring that she not lift more than ten pounds, climb, bend, or stoop.
(Id. 226-27.) The temporary restrictions on lifting and bending were originally to be lifted August 10th, but the restrictions remained in force until October 17, 1996, when the Plaintiff presented ATA with a recommendation from Arthur Lorber, M.D. that she have a permanent restriction of no lifting over fifteen pounds and no frequent bending. (Id. at 227, 248-49.) From the time of her injury to November 15, 1996, Ms. Vidovich-Gagnon had been assigned to temporary light duty at the gates. (Id. at 332.) On November 15, 1996, however, ATA notified the Plaintiff that her employment was being terminated because her permanent medical restrictions did not permit her to perform the lifting duties of her job. (Id. at 277-78.)
To accommodate the Plaintiff's work restrictions, she wanted the temporary light duty to be made permanent where she would perform only those portions of CSA duties that did not involve lifting. (Id. at 335-37, 342, 364.)
The Equal Employment Opportunity Commission issued Ms. Vidovich-Gagnon a right to sue letter on June 30, 1998, and her Complaint was filed on September 25, 1998.
An Amended Complaint was filed on September 28, 1998. Defendant filed its Motion for Summary Judgment and supporting materials on September 16, 1999. Plaintiff's Brief in Opposition was filed November 9, 1999, and Defendant's Reply was filed November 29, 1999.
In response to the Defendant's statement of fact that Plaintiff filed an amended charge with the EEOC on June 1, 1997, the Plaintiff denied the statement and said the "Amended Complaint" was filed January 6, 1997. The court assumes that she was still referring to charges filed with the EEOC and not the 9/98 Amended Complaint filed with the Clerk of the District Court of the Western District of Pennsylvania prior to a transfer of venue to the Southern District of Indiana in February 1999.
II. Summary Judgment Standard
Summary judgment should be granted "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 a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The motion should be granted only if no reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party opposing the motion bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999).
When ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson, 477 U.S. at 255. Speculation, however, is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is "not required to draw every conceivable inference from the record [in favor of the non-movant] — only those inferences that are reasonable"); Senner v. Northcentral Tech. College, 113 F.3d 750, 757-58 (7th Cir. 1997) (finding no reasonable inference of gender discrimination from the fact that no men made a final round of interviews).
III. Discussion
Ms. Vidovich-Gagnon brings claims under both the ADA and Title VII. The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a); Ross v. Indiana State Teacher's Ass'n Ins. Trust, 159 F.3d 1001, 1013 (7th Cir. 1998), cert. denied, 525 U.S. 1177 (1999). ATA contends, inter alia, that Ms. Vidovich-Gagnon was not a "qualified individual" with a disability at the time her employment was terminated. Title VII prohibits employers from discriminating against an individual on the basis of sex. See 42 U.S.C. § 2000e2(a)(1); Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999).
Regarding this claim, ATA contends, inter alia, that there is no direct evidence that Ms. Vidovich-Gagnon's employment was terminated because of her sex and that she was not able to establish a prima facie case of sex discrimination under an indirect method of proof.
A. Plaintiff's ADA Claim 1. Disability
Under the ADA, an individual is "disabled" if he (1) has "a physical or mental impairment that substantially limits one or more . . . major life activities"; (2) has "a record of such an impairment"; or (3) is "regarded as having such an impairment." Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1059-60 (7th Cir. 2000) (quoting 42 U.S.C. § 12102(2)).
"To be `substantially limited' means that the individual is either unable to perform, or significantly restricted as to the condition, manner or duration under which the individual can perform, a major life activity as compared to an average person in the general population." Krocka v. City of Chicago, 203 F.3d 507, 513 (7th Cir. 2000) (citing 29 C.F.R. § 1630.2(j)(1)(i)(ii)). A plaintiff has the burden of proving that she was disabled within the meaning of the statute. See id. at 1059 (citation omitted). The determination as to whether an individual is a "qualified individual with a disability" must be made as of the time of the employment decision. See Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998).
Ms. Vidovich-Gagnon contends that her back condition substantially limits the major life activities of walking, caring for herself, sleeping, and working. (Pl.'s Br. Opp'n Mot. Summ. J. at 10.) She also raises, for the first time, an argument that she is "disabled" under the "regarded as" prong. (Id. at 10-11, 13.) The parties do not dispute that the Plaintiff experiences some difficulties in all of these areas, but rather dispute whether these difficulties amount to "substantial limitations." At a minimum, however, the undisputed recommendation of Dr. Lorber that Ms. Vidovich-Gagnon be permanently restricted from lifting more than fifteen pounds and frequent bending is sufficient to raise a genuine issue of fact regarding a substantial limitation in the major life activity of working. Such a restriction not only has precluded her from the CSA position, but also would likely preclude her from work in a broad range of manual labor positions. See Krocka, 203 F.3d at 513 (quoting 29 C.F.R. § 1630.2(j)(3)(i)) ("In order to show a substantial limitation on his ability to work, an individual must demonstrate that his impairment significantly restricts `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.'"). Thus, for the purposes of summary judgment, the Plaintiff has raised a genuine issue of material fact regarding her disability.
In support of this contention, the Plaintiff refers to her deposition testimony that she had been performing satisfactorily all of her light duty responsibilities at the time ATA told her that her employment was being terminated because of her inability to perform the lifting functions. (Id. at 13-14.) The court need not address the Defendant's objections to Ms. Vidovich-Gagnon asserting a new theory of disability at this juncture in the proceedings because a genuine issue of material fact regarding her disability is raised on other grounds. See discussion infra.
2. Qualified Individual
A "qualified individual with a disability" is 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." 42 U.S.C. § 12111(8); see Ross, 159 F.3d at 1013; Nowak, 142 F.3d at 1003. An "essential job function" includes a fundamental job duty of the employment position or a necessary function for which a position exists, see 29 C.F.R. § 1630.2(n); the employer's judgment and written descriptions of such a function receive substantial deference where all employees in a particular position are required to perform that function. See 42 U.S.C. § 12111(8); DePaoli v. Abbot Lab, 140 F.3d 668, 674 (7th Cir. 1998). Whether a person is a qualified individual should be based upon her "capabilities at the time of the employment decision."
Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1059 (7th Cir. 1998); see also Ross, 159 F.3d at 1013. The plaintiff bears the burden of proof on the issue of whether she is a "qualified individual." See Nowak, 142 F.3d at 1003.
The parties do not dispute that the Plaintiff was qualified at the time of her initial employment. Nor does Ms. Vidovich-Gagnon argue that the lifting requirement for the CSA position is not an essential job function, or that she able to meet that requirement.
The fifty-pound lifting requirement is clearly a part of the CSA job description, and the Plaintiff acknowledged that she was aware of a fifty or seventy pound requirement at the time of her initial employment. She additionally acknowledged that assignments to the ticket counters and baggage claim areas involve lifting passenger bags that often weigh fifty pounds or more, and that gate duties can include significant lifting and bending responsibilities when assisting elderly or disabled passengers during arrival or boarding. Only one aspect of assignment to the gate area, working the gate counter, does not involve significant bending or lifting, and it is not disputed that flight schedule changes, delays, gate changes, and cancellations require CSAs to cover other stations as needed.
Rather, she explicitly relies on her ability to meet the lifting requirement at the time of her initial employment as sufficient to establish that she is a "qualified individual." (Pl.'s Br. Opp'n Mot. Summ. J. at 15-16) ("But for Plaintiff's work-related injury suffered on August 2, 1996, her qualifications would not be in question.") This argument is in error. The relevant time at which to determine if Ms. Vidovich-Gagnon was qualified for the CSA position is at the time of her discharge — a time when it is not disputed that she would be permanently restricted from lifting more than fifteen pounds. See DePaoli, 140 F.3d at 674 ("[A] worker has no claim under the ADA if she, even with a reasonable accommodation, cannot do the job for which she was hired. It is irrelevant that the lack of qualification is due entirely to a disability.").
Additionally, the Plaintiff's implicit argument that ATA should subdivide the essential functions of the CSA position to convert her temporary light duty work into a permanent position is simply something the ADA does not require employers to do. See Malabarba v. Chicago Tribune Co., 149 F.3d 690, 696 (7th Cir. 1998) ("The ADA does not require that employers transform temporary work assignments into permanent positions.").
Although the Plaintiff does not explicitly discuss the "with or without reasonable accommodation" aspect of the qualification requirement, facts agreed to by the parties fairly raise the issue. See supra note 3.
Moreover, the lifting requirement is necessary at all station assignments and is significantly related to passenger assistance, a function for which the CSA position exists. Thus, the court does not find the splitting up of CSA duties to be a reasonable accommodation with which the Plaintiff could perform the essential functions of the CSA position. See Id. at 700-01 (refusing to require an employer to separate tasks out of a multi-duty position); Miller v. Illinois Dep't of Corrections, 107 F.3d 483, 485 (7th Cir. 1997) ("[I]f an employer has a legitimate need for specifying multiple duties for a particular job classification, duties the occupant of the position is expected to rotate through, a disabled employee will not be qualified for the position unless he can perform enough of these duties to enable a judgment that he can perform its essential duties."). The court therefore finds that Ms.
Vidovich-Gagnon is not entitled to the protections of the ADA because she has not shown that she is a "qualified individual." See, e.g., Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir. 199) (finding the use of a helper to do overhead work was the de facto performance of a coal miner's job and so the miner was no longer qualified to perform that job). The court therefore finds that ATA's Motion for Summary Judgment regarding Ms. Vidovich-Gagnon's ADA claim should be GRANTED.
B. Plaintiff's Sex Discrimination Claim
To prevail on her claim of disparate treatment on account of sex, the Plaintiff must ultimately prove that ATA intentionally discharged, refused to hire, or otherwise discriminated against her because of her sex. See 42 U.S.C. § 2000e et seq.; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). The plaintiff may prove discriminatory intent by direct evidence or by the method of indirect proof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Mills, 171 F.3d at 454.
a. Direct Method of Proof
Direct proof is "evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption." Id. (quotation omitted). Ms. Vidovich — Gagnon cites to her deposition testimony (Vidovich Dep. at 277-78) that ATA fired her on account of her inability to lift more than fifteen pounds as direct evidence of animus regarding her sex. The court cannot find that any statement in this portion of Plaintiff's testimony that even remotely infers bias on account of sex. See, e.g., Fortier v. Ameritech Mobile Comm., Inc., 161 F.3d 1106, 1112 (7th Cir. 1998) (affirming that a supervisor's remarks about a preference for women to perform a male worker's responsibilities did not, without more, exhibit discriminatory animus toward the male worker). Thus, the Plaintiff's claim is not established under the direct method of proof.
b. Indirect Method of Proof
In the absence of direct proof of disparate treatment, Plaintiff must establish a prima facie case of such racial discrimination by producing evidence that: (1) she is a member of a protected class; (2) her job performance met the employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) other similarly-situated male employees were treated more favorably. See Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). The Plaintiff's failure to establish any one of the four elements of the prima facie case renders summary judgment appropriate for the employer. See Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1142 (7th Cir. 1998) ("Fisher fails to raise a genuine issue of material fact that he could satisfy the prima facie case requirement that a similarly-situated employee received more favorable treatment. . . . [T]his court need not proceed any further in the McDonnell Douglas analysis once we determine that a claimant has failed to make a prima facie case.").
The parties do not dispute the first and third elements of the prima facie case — i.e., that Ms. Vidovich-Gagnon is a member of a protected class (she is female) and that she suffered an adverse employment action. The parties dispute whether she was able to perform her job satisfactorily and whether similarly-situated male employees were treated more favorably with regard to job assignments. As previously noted, the Plaintiff's permanent inability to lift more than fifteen pounds precludes her from performing an essential function of the CSA position and, accordingly, she was unable to satisfy her employer's legitimate performance expectations. See, e.g., Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1142 (7th Cir. 1997) (finding no prima facie case of pregnancy discrimination where the plaintiff was not qualified for the job). Moreover, the alleged differences in job assignments for four male co-workers does not provide a basis on which to find a genuine issue of material fact regarding whether these persons were similarly situated — none of them had similar restrictions on their abilities to lift; there was no indication that they were not required to do lifting in the course of performing arrival and boarding duties at the gate; none of them were exclusively assigned to the gate area; and all were still subject to the requirement that they fill in at other stations as needed. See, e.g., Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir. 1998) (noting that in a Title VII action, individuals with whom a plaintiff would compare herself need not be identical in all respects, but their situations must be comparable to that of the plaintiff's); Auston v. Schubnell, 116 F.3d 251, 254 (7th Cir. 1997) (holding also that a female nurse who did not take a protracted leave of absence was not similarly-situated to a male nurse terminated after a protracted leave of absence). The court therefore finds that ATA's Motion for Summary Judgment regarding Ms. Vidovich-Gagnon's sex discrimination claim should be GRANTED.
IV. Conclusion
Ms. Vidovich-Gagnon has not come forward with evidence sufficient to create a triable issue of fact as to whether she was a qualified individual under the ADA or that ATA discriminated against her because of her gender. Accordingly, ATA's Motion for Summary Judgment is GRANTED.
ALL OF WHICH IS ORDERED this 21st day of July 2000.