Opinion
No. C98-0045 MJM
March 28, 2001
OPINION and ORDER
This lawsuit grew out of a staff reorganization at the Duane Arnold Energy Center. The Plaintiff, Blaine Watts, is a former employee of Duane Arnold Energy Center which is operated by IES Utilities Inc., a wholly owned subsidiary of IES Industries Inc. Watts filed a four-count complaint against IES Industries, Inc., IES Utilities, Inc. and Duane Arnold Energy Center (hereinafter collectively referred to as "Defendants") alleging certain actions taken by the Defendants during their staff reorganization violated (1) the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and Chapter 216 of the Iowa Code ("ICRA") (Counts I and II); and (2) the American's with Disabilities Act, 42 U.S.C. § 12101 et. seq. ("ADA") and ICRA (Counts III and IV). (Doc. No. 1). The Defendants have moved for summary judgment on all Watts' claims. (Doc. No. 31). For the reasons that follow, the Defendants' motion is denied in part and granted in part.
In an amended complaint, the Plaintiff also alleged class-wide discrimination. In an Order dated May 16, 2000, the Court denied the Plaintiff's motion for class certification and consequently dismissed Count V of his amended complaint. (Doc. no. 118).
STANDARD FOR SUMMARY JUDGMENT
"Under Rule 56(c), 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 a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quoting Fed.R.Civ.Pro. 56); see also Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000).
A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from those facts. See Matshusita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Rabushka, ex rel. U.S. v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997), cert. denied, 523 U.S. 1040 (1998). A court must not, however, "weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter" when evaluating a motion for summary judgment. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986)). Instead, a court should simply determine whether there are genuine issues of material fact for trial. See id.; see also Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir. 1990).
"An issue of material fact is genuine if it has a real basis in the record." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita, 475 U.S. at 586-87). As to whether a factual dispute is "material," the Supreme Court has explained, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995); Hartnagel, 953 F.2d at 394.
When bringing a motion for summary judgment, "[p]rocedurally, the movant has the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel, 953 F.2d at 394 (citing Celotex, 477 U.S. at 323). Once the moving party has carried its burden under Rule 56(c), the nonmoving party must do more than simply show there is "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Herring v. Canada Life Ins. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). It must go beyond the pleadings, and by affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
With these standards in mind, the Court remains cognizant "that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 1990). Moreover, discrimination cases, such as this one, "`often depend on inferences rather than on direct evidence,' [thus,] summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111 (8th Cir. 1995) (quoting Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)).
The Court will now turn to the facts of the present case and view them in the light most favorable to the nonmoving party, Watts, drawing all reasonable inferences in his favor.
FACTS 1. IES Industries, Inc., IES Utilities, Inc., and Duane Arnold Energy Center
Plaintiff's Appendix of exhibits will hereinafter be referred to as "PX" and the number of the exhibit or, if it is a deposition, the last name of the witness being deposed.
IES Utilities, Inc. is an Iowa corporation and a wholly owned subsidiary of IES Industries, Inc., also an Iowa corporation, both with their principal place of business in Cedar Rapids, Iowa. (Complaint ¶¶ 9 10). At all times relevant to this lawsuit, IES owned and operated the Duane Arnold Energy Center ("DAEC"), a nuclear power plant with its principal place of business in Palo, Iowa. (Complaint ¶ 8). The Plaintiff, Blaine Watts is a former employee of DAEC and the events surrounding his termination are the subject of this lawsuit.
2. Blaine Watts' Medical History Prior to his Employment at DAEC
Blaine Watts was born on August 6, 1938. (Watts Dep. p. 7). As a child, Watts was diagnosed with an enlarged heart, and as an adult Watts discovered he suffers from an arrhythmia. (Watts Dep. pp. 181-82). Watts' arrhythmia causes him to experience dizzy spells and shortness of breath. (Watts Dep. p. 185). In 1984, Watts suffered heart failure and was given two options by his doctor as possible treatment — heart surgery or a restricted diet. (Watts Dep. pp. 182-84). Rather than undergo surgery, Watts opted for the diet proposed by his doctor. (Watts Dep. pp. 182-84). Later in 1984, however, Watts suffered from another arrhythmic episode which caused Watts to fall off a ladder. (Watts Dep. pp. 184-85). The fall caused his retina to detach and now he has diminished vision as a result. (Watts Dep. pp. 184-85). After the fall, his doctor again suggested he undergo surgery to repair holes in his heart. (Watts Dep. pp. 184-186). In 1984, Watts had successful heart surgery. (Watts Dep. pp. 185-86).
3. Watts' Educational and Work History
Watts received a bachelor's degree in Music from Brigham Young University in Utah. (Watts Dep. pp. 7-9). Upon graduation, Watts taught band and choral classes to high school students, and in 1965, he worked as a sales clerk at Macy's in New York City. (Watts Dep. pp. 9-11). Watts then returned to Utah and worked as a salesperson selling household products. (Watts Dep. p. 11). Watts left his work as a salesperson to become a music director and schoolteacher in Idaho Falls, Idaho in 1966 or 1967, where he built the music programs and taught debating. (Watts Dep. pp. 12-13).
In the mid-1970's, Watts continued his education at Eastern Idaho Technical College and obtained an associate's degree in Health Physics. (Watts Dep. pp. 16-18, 85). Watts then began to work as a contractor in the Nuclear Industry and was employed on contract with numerous nuclear facilities in the United States. (Watts Dep. pp. 18-26).
4. Watts' Employment at DAEC
August 27, 1985, Watts began his employment for DAEC in Palo, Iowa as a Radwaste Instructor in the Training Center. (Watts Dep. p. 34). As a Radwaste Instructor, Watts worked to implement the Radwaste Operator Training Program. (PX 5; Watts Dep. p. 34). The purpose of this program is to provide initial qualification and continuing training for Radwaste operators at DAEC. (Vance Patrilla Dep. pp. 90-91, 125). Specifically, this program is designed to ensure that Radwaste operators are trained and qualified in duties involving the safe transfer, processing, packaging, storage, release, and shipment of radioactive materials and waste, and to minimize the volume of radioactive waste produced at DAEC. (Vance Patrilla Dep. pp. 6, 90-91, 125; Young Dep. pp. 45-51; Kress Dep. p. 12). Accordingly, Watts was qualified to train employees in the safe handling procedures for radioactive materials and waste, and to implement programs to minimize the volume of radioactive waste produced at DAEC. (Watts Dep. pp. 34-36). Watts trained radiation protection personnel in the following departments: radio-active waste (Radwaste) operators, chemistry technicians, and health physics technicians; maintenance personnel, including instrument and control technicians, maintenance mechanics and electrical mechanics; engineers; and general employees. (Watts Dep. pp. 34-36; Kress Dep. p. 12).
5. Watts' Medical History While Employed by DAEC
Prior to being formally hired by DAEC, Watts underwent a pre-employment physical which revealed he had an enlarged heart. (Watts Dep. p. 181). During his employment at DAEC, Watts experienced some complications due to his heart condition. In 1991, during a particularly severe arrhythmic episode, Watts required emergency room treatment and was later admitted to the hospital. (Watts Dep. pp. 178-79, 187-90). Watts received no medical treatment for his heart condition from 1991 to 1994. (Watts Dep. p. 187). In 1994, Watts suffered another severe arrhythmic episode and his physician placed him on heart medication. (Watts Dep. pp. 187-88). After the 1994 episode, Watts' dizzy spells and breathlessness became more frequent as a result of his arrhythmia. (Watts Dep. p. 188). And while the episodic dizziness and breathlessness did not require medical treatment for each attack, Watts would need to stop whatever he was doing to rest until the episode ran its course. (Watts Dep. p. 247). Watts testified however, that the episodes, do not affect his day to day activities. (Watts Dep. p. 188).
In 1996, Watts' heart condition underpinned two instances where his work was restricted by DAEC. In the first instance, two factors led Deb Schebler, the Radwaste Supervisor, to limit his hours. (Watts Dep. pp. 190-91; Kress Dep. p. 124). The first factor was a note submitted by Watts' doctor stating he could not work over time. (Watts Dep. p. 194-96). The second factor was an incident reported to Schebler by one of Watts' students stating he suffered an arrhythmic episode during a training session. (Watts Dep. p. 195-96). Schebler restricted Watts' hours to 8 hours a day from 10-12 hours a day, essentially restricting Watts from working overtime. (Watts Dep. p. 194).
In the second instance, Watts' work was restricted when he was injected with radioactive nuclides as a treatment for his arrhythmia. (Watts Dep. pp. 191-92 198-99; Kress Dep. pp. 127, 129-30; Vance Patrilla Dep. pp. 58-60). The nuclides in Watts' blood set off the alarms at the plant and required that he be restricted from entering the plant area until the dose of radioactive nuclides diminished. (Watts Dep. pp. 191-92 198-99; Kress Dep. pp. 127, 129-30; Vance Patrilla Dep. pp. 58-60).
The parties' statements of facts have not been a model of clarity on the issue of Watts' work restrictions. For instance, references appear in the record to exhibits which were not submitted to the Court, i.e. Watts' doctor's note regarding the required restrictions because of Watts' nuclides injections. The lack of record support has made it difficult to ascertain the course of events surrounding these restrictions and whether, as the Plaintiff appears to suggest, there were multiple occasions where Watts' work was restricted, or alternatively he was restricted only once in 1996 as a result of the nuclides. Nor can the Court ascertain how long the restriction(s) was in place and if it affected his ability to carry out the duties of his employment. Having said that, the Court will do its best to review those facts with record support, and view them in the light most favorable to Watts.
Watts' co-workers at DAEC were aware of his history of heart trouble. (Schebler Dep. pp. 118, 124; Kress Dep. pp. 120, 123; Vance Patrilla, Dep. pp. 57-58, Tirella Dep. pp. 95-96; Van Middlesworth Dep. p. 72; Young Dep. p. 70). In fact, on at least two occasions, Watts had co-workers drive him home or to his wife's place of work because his heart impairment prevented him from driving. (Watts Dep. pp. 191, 198-99; Kress Dep. p. 124). Vance Patrilla, a lead trainer in the Training department, knew Watts carried a pill for his heart condition. (Vance Patrilla Dep. p. 57). Keith Young, DAEC's Training Manager, testified he may have known about Watts' heart condition. (Young Dep. pp. 69-70). Gary Van Middlesworth was also aware that Watts had a heart condition since the time he came to the Training Center in 1991, and knew that Watts was off work a couple of days due to his condition. (Van Middlesworth Dep. p. 72). Charles Tirella, Senior Emergency Planning Specialist, was aware that Watts was on medication and experienced periodic arrhythmic episodes. (Tirella Dep. p. 96). Tirella believed this was common knowledge about the plant. (Tirella Dep. p. 96).
Here again the Court is not entirely clear what occurred. Watts repeatedly states that he was driven home by co-employees as if it were done regularly. The Court's review of the record has only revealed two such instances.
Management at DAEC was also aware of Watts' heart condition. In October of 1996 a Radwaste operator informed Deb Schebler, the Radwaste Supervisor and one of Watts' supervisors, that Watts was having problems breathing. (Schebler Dep. p. 119). Schebler brought the information to Curt Kress, the Technical Training Supervisor and also one of Watts' supervisors. (Schebler Dep. p. 119). Schebler explained in her deposition testimony that Watts' "health is most important and the safety of the plant. You don't want him working with someone and having a problem either out in the plant." (Schebler Dep. p. 119). Kress and Watts also discussed Watts' heart condition including the note given by Watts' doctor about restricting his hours. (Kress Dep. pp. 120, 122, 127 195). Kress observed Watts having shortness of breath, difficulty climbing stairs, paleness and fatigue. (Kress Dep. p . 121). In his deposition Kress stated he knew Watts "was having a number of times where he had seen the doctor and you could see him having difficulty breathing and fatigue." (Kress Dep. p. 122). On one instance, Kress drove Watts to meet his wife because Watts was unable to drive due to an arrhythmic attack. (Kress. Dep. p. 130). Larry Heckert, the Manager of Emergency Planning and responsible for making hiring decisions, received a report from Lisa Gibney, a member of his staff on emergency planning, expressing "concern about Blaine's reaction to stress." (Heckert Dep. p. 26). Heckert maintains he did not know about Watts' heart condition, however when reviewing his application for the Emergency Planning position Heckert discussed Watts' qualifications with Kress who did know about Watts' heart condition. (Heckert Dep. pp. 35-36, 134, 222-23).
6. Defendants' Process Redesign
Prior to May 1997, the Defendants embarked on a program called Process Redesign to restructure its organization, including the DAEC and its Training Center. (Christensen Dep. pp. 27-29, 65, 105-09). The Defendants contend the Process Redesign was initiated as early as 1995 to prepare the company for the coming changes in the utility industry, including deregulation, increases in customer choices, and increased competition. (Franz Dep. pp. 32-33; Van Middlesworth Dep. pp. 35-36; Young Dep. pp. 45-51). During this process, employees' positions were placed "at risk" which essentially meant that their position would be eliminated and the incumbent would need to find another job. (Kress Dep. pp. 33-34; Watts Dep. pp. 119-20). Process Redesign was intended to eliminate redundant positions, not people, and if the position was not posted, the incumbent was not subject to losing their position because the position was not at risk. (Franz Dep. p. 32; Kress Dep. p. 33-34; Watts Dep. p. 120). Only positions with two or more incumbents were to be placed at risk in the Training Center. (Kress Dep. pp. 32-34).
Keith Young, Training Manager, and Curt Kress, Technical Training Manager, handled the reorganization process of the Technical Training Unit of the DAEC. (Young Dep. p. 43). On May 1, 1997, Kress called Watts and V. Patrilla to his office to notify them that their positions in the Nuclear Training Center were being placed at risk. (Watts Dep. pp. 117-20, Vance Patrilla Dep. p. 98). Kress told Watts and V. Patrilla that their options were to interview for other positions, accept a severance package, or simply quit. (Watts Dep. p. 120). Watts testified, and the Defendants' documents reflect, that Watts was the only incumbent in the position of Radwaste Instructor, and as such, under the terms of Process Redesign, his position should not have been posted. (Watts Dep. pp. 119-120; PX 4). Likewise, the Defendants' documents demonstrate that V. Patrilla, the employee that the Defendants now state was also an incumbent for this position, was not in the Radwaste Instructor position at the time of Process Redesign. (PX 4). V. Patrilla was instead listed as "Radpro" and he was a Lead Instructor with different duties and a different pay structure. (PX 4).
The Defendants' Redesign expert, Deb Christensen, testified that no effort was made to determine if the selection process was eliminating more older people than should have been the case. (Christensen Dep. pp. 153-55). Christensen acknowledges that statistical analyses are performed on data of this kind in order to determine whether or not particular classes of people are adversely affected by a particular selection device. (Christensen Dep. pp. 153). The Defendants did not perform these types of analyses. (Christensen Dep. pp. 153-54). Rather the Defendants relied on random checks of the interview materials to determine if the Behavioral Interviewing Guidelines were followed. (Christensen Dep. pp. 153-55). John Franz Jr., DAEC's plant manager was not aware that all candidates at risk at DAEC Instructors Unit were over the age of 40 and there was no action to determine why. (Franz Dep. p. 60).
Those employees with posted positions who did not wish to leave the Defendants' employ could apply for open positions for which they were qualified and go through the Behavioral Interviewing process. (Christensen Dep. p. 79). The notion among some interviewing team members was the most qualified candidate would get the highest score on the Behavioral Interview and therefore the job. (Tirella Dep. pp. 106-07; Kress Dep. pp. 174-76, 180, Schebler Dep. pp. 89-90; Van Middlesworth Dep. p. 60; and Exhibit 9). However, decision-makers testified that they did not believe that the candidate with the highest score would necessarily get the job. (Heckert Dep. pp. 99-100; Ford Dep. p. 98; Christensen Dep. pp. 80-85).
After Watts was informed his position was put "at risk" he reapplied for the position of Radwaste Instructor and was evaluated by a three member interviewing team using the Behavioral Interviewing process. (Watts Affidavit ¶ 1). A team of three interviewers, Curt Kress, Training Supervisor, Janiece Ford, Instructional Technologist, and Deb Schebler, Radwaste Supervisor, interviewed Watts and two other candidates. The Defendants maintain that the candidates were asked identical questions about their skills: (1) spoken communications; (2) written communications; (3) commitment to task; (4) ability to motivate; (5) conformance to policies and procedures; (6) organization and planning; (7) coping; (8) ability to present instructional material to groups of all sizes; and (9) two years experience in radwaste operations.
Although Watts was an incumbent who held the position for the previous twelve years and while he was a Radwaste Trainer, the Training Center received a favorable review from an NRC inspectors, the team found Watts was the least qualified of the candidates after the interviewing process. (Kress Dep. pp. 134-35, 174-75, 217-18, 234; Ford Dep. pp. 31, 45, 88-89; PX 4). However, after a review of two of the interviewers' notes, Watts "noted a number of odd draftings and findings in the Behavioral Interviewing documents that do not make sense." (Watts Affidavit ¶ 7 (analyzing the conclusions of the interviewers)). Upon his review of the Behavioral Interviewing notes, Watts concluded that he was the most objectively qualified according to the Behavioral Interview criteria. (Watts Affidavit ¶ 7).
The third interviewer, Janiece Ford, disposed of her notes immediately after the process and Watts was unable to review those. (Watts Affidavit ¶ 6).
The position went to Greg Lusted, an individual under the age of forty (40) who had no instruction experience and minimal technical experience. (Van Middlesworth Dep. p. 86). At the time of the Behavioral Interview, Watts was qualified to instruct under both IES standards and INPO standards; Lusted was not. (Watts Dep. pp. 83-85; Watts Affidavit ¶ 7; Van Middlesworth Dep. p. 86). Watts was certified to teach Radwaste General Employee Training (GET) and Lusted was not. (Kress Dep. pp. 234-238; Ford Dep. pp. 104-10).
Watts then applied for one of two openings as a Radiation Protection Instructor. Curt Kress, Janiece Ford, and Russ Perry, Supervisor of Radiation Protection Operation conducted this Behavioral Interview. (Ford Dep. p. 48). The interviewing team asked the same questions as those asked for the Radwaste Instructor with the exception of question nine which instead inquired whether the candidate had two years experience in health physics and chemistry.
Although Watts had more teaching experience than one of the candidates selected, Watts was rated the least qualified of the three. (R. Patrilla Dep. 5, 24-27). Watts was not selected for the position. Instead, Vance Patrilla, age 45, and his brother Ray Patrilla, age 37, were selected. (R. Patrilla Dep. p. 4; V. Patrilla Dep. p. 4). Ray Patrilla had less experience for the position than Watts. (Watts Dep. pp. 27-28, 259-60; R. Patrilla Dep. pp. 5, 24-27).
Watts finally applied for the position of Specialist in the Emergency Planning Department at DAEC. (Watts Dep. pp. 123, 144-46). The requirements for the Specialist position included: the ability to interact with others, strong written and spoken communication skills, perceptivity, organization and planning skills, commitment to task, and tolerance of ambiguity; a bachelor's degree in a technical or related field or equivalent experience; knowledge of nuclear regulations, DAEC plant operations, health physics fundamentals, the DAEC emergency plan, and the emergency response organization; ability to maintain a professional relationship with regulators, and emergency management officials; and the knowledge of media public relations and communication tools. (Heckert Dep. pp. 105-06).
Watts was one of five people interviewed for the position by the interviewing team composed of Larry Heckert, Manager of Emergency Planning, Charles Tirella, Senior Emergency Planning Specialist, and Andy DeSoiza, Human Resource Representative. Here, Watts received the highest score from the Behavioral Interviewing process. (Tirella Dep. p. 98; Heckert Dep. pp. 123, 129). Yet, Watts was not awarded the position. The position was instead awarded to Russell Titus, 32 years of age. (Heckert Dep. pp. 123, 129). Watts was surprised by the hiring of Titus because of his shy demeanor, whereas the position called for a forthright person to interact heavily with the community. (Watts Dep. p. 150). Tirella also expressed surprise at the selection of Titus because he had scored Watts number one in the Behavioral Interview and he believed Andy DeSoiza had scored Watts number one as well. (Watts Dep. p. 151). In fact, believing the high score on the Behavioral Interviewing process necessarily meant one would be awarded the position, Tirella reported to his wife that Watts was awarded the Specialist job. (Tirella Dep. pp. 97, 102-03; Watts Dep. pp. 150-52).
Larry Heckert, Manager of Emergency Planning, stated that one of the reasons for the selection of Titus for the Specialist position was his Health Physics experience. (Heckert Dep. p. 28). However, in the initial rankings of Titus and Watts' Health Physics qualifications, Watts was found to be more qualified. (PX 7; Heckert Dep. pp. 142-44). Watts also appears to have more relevant education than Titus. (Heckert Dep. p. 106). Heckert also testified that he noticed Watts showed signs of stress and believed it would negatively affect his ability to perform the job functions of the Emergency Planning position. (Heckert Dep. p. 33). However Titus was visibly shy and nervous in the interview, and Tirella testified his shyness and introverted character would be a detriment to his ability to adequately perform the position. (Tirella Dep. p. 95).
Prior to the commencement of the Process Redesign, twenty-one (21) of the thirty-one (31) persons employed at the DAEC training center were over the age of forty (40). Nine (9) members of the training center employees had their positions placed at risk and all nine were over forty. (PX 1). After the completion of the Process Redesign one of the nine at risk employees was retained. (PX 1). Prior to the Process Redesign 68% of the training center were over the age of forty and after its completion, only 55% were over forty. (PX 11).
Watts' employment was terminated August 27, 1997. He was 59 years of age at the time. He taught for one year at Wahlert High School in Dubuque, Iowa. For financial and emotional reasons, Watts returned to Utah. (Watts Dep. pp. 240-247).
DISCUSSION 1. Age Discrimination Claims
Watts alleges the Defendants' actions — the termination of his employment and failure to hire him for three positions — were unlawfully based on his age in violation of the ADEA and the ICRA. The ADEA prohibits employer discrimination against an individual forty years of age and older with respect to terms, conditions, or privileges of employment. See 29 U.S.C. § 623(a), 631. Likewise, the ICRA prohibits discrimination based on age, see I.C.A. § 216.6, and its legal framework is interpreted to mirror the companion federal discrimination statutes. See Fisher v. Pharmacia UpJohn, 225 F.3d 915, 919 n. 2 (8th Cir. 2000) (citing Montgomery v. John Deere Co., 169 F.3d 556, 558 n. 3 (8th Cir. 1999)); Engstrand v. Pioneer Hi-Bred Int'l, 946 F. Supp. 1390, 1397 n. 4 (N.D.Iowa 1996) (finding "Iowa courts have held that state's civil rights statutes including, Chapter 216, are patterned after Title VII") (internal quotations omitted); s ee also Board. of Supervisors of Buchanon County v. Iowa Civil Rights Comm'n, 584 N.W.2d 252, 256 (Iowa 1998); Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm'n, 453 N.W.2d 512, 516 (Iowa 1990). Therefore, this Court's analysis of Watts' ADEA claim applies equally to Watts' claim of age discrimination pursuant to ICRA.
The allocation of the burden of proof in ADEA cases has been held to be the same as in cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 (1988). See Berg v. Bruce, 112 F.3d 322, 326-27 (8th Cir. 1997); see also Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 778 (8th Cir. 1995); Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994); and Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir. 1993) (finding allocation of burden of proof in ADEA cases is the same as in cases arising under Title VII). And because "[t]here will seldom be `eyewitness' testimony as to the employer's mental processes," Gaworski v. 17 F.3d 1104, 1108 (8th Cir.) , cert. denied, 513 U.S. 946 (1994), (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)) plaintiffs need not produce direct evidence of discrimination; but rather, they may rely on circumstantial evidence of discrimination and prove their case through the now familiar burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The McDonnell Douglas burden shifting framework has been described many times, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-12 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); see also Kneibert v. Thomson Newspapers, Michigan, Inc., 129 F.3d 444, 451-52 (8th Cir. 1998), most recently by the Supreme Court in Reeves v. Sanderson Plumbing Products., Inc., 120 S.Ct. 2097, 2105 (2000). Under this three-stage framework, the plaintiff must first establish a prima facie case. See Reeves, 120 S.Ct. at 2105. The prima facie case shifts the burden to the defendant to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Id. (quoting Burdine, 450 U.S. at 254. "This burden is one of production, not persuasion; it `can involve no credibility assessment.'" Id. (quoting St. Mary's Honor Center, 509 U.S. at 506). If the defendant meets this production burden "`the McDonnell Douglas framework — with its presumptions and burdens' — disappear, St. Mary's Honor Center, supra, at 510, 113 S.Ct. 2742, and the sole remaining issue [is] `discrimination vel non,' [ U.S. Postal Service Bd. of Governors v. Aikens,] 460 U.S. 711, 714 (1983).]" Reeves, 120 S.Ct. at 2106. The plaintiff is then afforded the opportunity to prove by the preponderance of the evidence that the legitimate reasons offered by the defendant are not true, but instead were pretext for discrimination. See Reeves, 120 S.Ct. at 2106. Most importantly the Reeves Court clarified:
the plaintiff may attempt to establish that [s]he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.' Burdine, supra, at 256. Moreover, although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, St. Mary's Honor Center, supra, at 511, 113 S.Ct. 2742, the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual,' Burdine, supra, at 255, n. 10, 101 S.Ct. 1089.120 S.Ct. at 2106.
With that said, it is important to be clear that "`[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 120 S.Ct. at 2106, (quoting Burdine, 450 U.S. at 253).
In order to establish a prima facie case of age discrimination under the ADEA a plaintiff must establish that: (1) he was within the protected age group; (2) he met applicable job qualifications; (3) he was discharged; and (4) after the plaintiff was terminated, the position remained open or the employer hired a person not in the protected age group to fill the position. See Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762-63 (8th Cir. 1995); and Bashara, 26 F.3d at 823.
For purposes of its motion for summary judgment, the Defendants do not contest whether Watts can establish a prima facie case. Rather, the Defendants maintain, even assuming Watts can make out a prima facie case, he could not and has not presented enough evidence from which a jury could conclude that he was discharged, or not rehired as it were, because of his age.
As explained above, Watts' prima facie showing creates a legal presumption of unlawful discrimination. See St. Mary's Honor Ctr, 509 U.S. at 507; Burdine, 450 U.S. at 256; McDonnell Douglas Corp., 411 U.S. at 806. The onus is then on the Defendants to proffer evidence of a legitimate, nondiscriminatory reason for their decision to terminate, and failure to rehire Watts for the three separate positions for which he applied — Radwaste Instructor, Radiation Protection Instructor, and Emergency Planning Specialist — in order to rebut that presumption of unlawful discrimination. See Reeves, 120 S.Ct. at 2106; St. Mary's Honor Ctr, 509 U.S. at 510.
To this end, the Defendants contend that Watts was evaluated by a three member interviewing team who found he was the lowest qualified candidate for both the Radwaste Instructor and the Radiation Protection Instructor positions. As for the Emergency Planning Specialist position, the Defendants concede Watts was one of the top two candidates for the position, but upon further review of their qualifications, found the other candidate was more qualified. As the Defendants' burden is one of production, not persuasion at this stage, see St. Mary's Honor Center, 509 U.S. at 509, the Court concludes that Defendants' explanations of its decisions are sufficient to meet this minimal burden.
Accordingly the burden of both persuasion and production shifts to Watts to demonstrate the Defendants' proffered reasons are pretext for unlawful age discrimination. See Reeves, 120 S.Ct. at 2106; Burdine, 450 U.S. at 253. Watts meets this burden through various means. First, Watts alleges the Defendants engaged in a "pattern-or-practice" of discrimination against older employees. To establish a case of pattern-or-practice discrimination "a plaintiff must prove that the employer regularly and purposefully treated members of a protected group less favorably and that unlawful discrimination was the employer's regular procedure or policy." EEOC v. McDonnell Douglas, 191 F.3d 948, 951 (8th Cir. 1999) (internal citations omitted). As evidence of a pattern-or-practice of discrimination, Watts provides statistical evidence that the Defendants' redesign process disproportionately terminated older employees. Specifically, Watts' statistics reveal that twenty-one (21) of the thirty-one (31) employees in the DAEC Training Center were over the age of forty (40). During the Process Redesign, nine (9) members of the Training Center had their positions placed "at risk," and all nine were over the age of forty. And after the Defendants completed the Process Redesign, only one of the nine "at-risk" employees was retained. Thus, prior to the redesign, 68% of the Training Center employees were over the age of forty and subsequent to the Process Redesign, 55% of the Training Center employees were over age forty.
A claim of pattern-or-practice discrimination is most often brought as a class action. See, e.g., Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875-76 (1984). In such cases, statistics are offered, and can often be sufficient to make out a prima facie case of discrimination. See EEOC v. McDonnell Douglas, 191 F.3d at 951. In an individual claim of disparate treatment, such as the instant case, a plaintiff may offer evidence of pattern-or-practice of discrimination, and statistical evidence to show the same, in an effort to prove a defendant's proffered reasons are pretext for discrimination. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 778 (8th Cir. 1995) (recognizing that statistical evidence "may support a finding of pretext, particularly where there are independent, direct grounds for disbelieving the employer's explanation for discharge." (internal quotations omitted)); see also Kim v. Nash Finch Co., 123 F.3d 1046, 1059 (8th Cir. 1997) (in addition to other evidence that the proffered reason was false, pretext was established by evidence that out of 3,500 employees, only 2 management employees in 25 years were nonwhite).
In age discrimination cases in the context of a bona fide Reduction in Force ("RIF") the most significant statistic is the difference in the percentage of older employee before and after the RIF. See EEOC v. McDonnell Douglas Corp. , 191 F.3d 948, 952 (8th Cir. 1999). More than a ten percent drop in the number of employees over forty, as is the case here, is a statistically significant impact on workers in a protected group. See MacDissi v. Valmont Industries, Inc., 856 F.2d 1054, 1058-59 (8th Cir. 1988) (finding "[e]vidence that [the] two [oldest] employees in nine-member department had been laid off [and those remaining were all under 33 years of age] was relevant, when considered along with independent, direct grounds for disbelieving employer's explanation for layoff, to determine whether employee's layoff was motivated by age discrimination.")
The Court notes that the parties have not placed the facts of this case in the traditional RIF legal framework; that is, where a defendant alleges there was a bonafide RIF as their legitimate business reason, the plaintiff must make an additional showing that age was a motivating factor in the decision in order make out a prima facie case. See Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir. 1995). Presumably this is because Watts is also arguing that the Defendants' failure to rehire him was a discriminatory adverse employment action for which a RIF could not be a legitimate business reason. Because, however, the Process Redesign spawned this lawsuit, the Court finds legal precedent concerning RIF's are equally applicable to the present case.
Citing Bogren v. State of Minnesota, 236 F.3d 399 (8th Cir. 2000), the Defendants argue Watts' statistics are generic and cannot raise an inference of discrimination. The ruling in Bogren, however, is inapposite. In Bogren, the Court found the plaintiff's evidence that she was the only black female trooper, and one of a few black troopers ever employed by state patrol, was insufficient to establish a genuine issue of pretext. See id. at 406. As an initial matter, Bogren was an individual disparate treatment case where the plaintiff was drawing her statistics from a long history of employment decisions to establish pretext. In the instant case, Watts was terminated and not rehired in a staff reorganization. Thus, the decisionmakers were the same and the decisions about whom to fire and hire occurred around the same time. Viewed in that light, a ten percent drop in a protected group after a staff reorganization is probative of pretext. Moreover, unlike Bogren where "the plaintiff advances simplistic demographic evidence of the patrol's workforce" as her sole means of proving pretext, see id. at 406, Watts offers more than statistics as proof of pretext. Watts also generates a question of fact about the validity of Defendants' proffered business reasons. See discussion infra.
Casting doubt on the Defendants' proffered business reasons, Watts draws this Court's attention to the fact that his position was not intended to be put "at-risk" in the first instance. That is, Watts testified, and the Defendants' internal documents reveal, that Watts was the only incumbent in the position of Radwaste Instructor. Therefore, because before and after the Process Redesign there was only one Radwaste Instructor, and by the Defendants' own account, the Process Redesign was intended to eliminate jobs not people, his job should not have been put "at risk." The Defendants contend that in fact Vance Patrilla was a Radwaste Instructor as well and any documents stating otherwise were misleading. At best, the Defendants contend, Watts' position was put "at risk" by mistake and this is insufficient to show an inference of pretext. This Court disagrees. Watts held the position of Radwaste Instructor for twelve years. He was terminated and ultimately found to be less qualified than a person who is younger than he is, and who arguably had less experience. The Defendants' business justifications that placing Watts' position "at risk" was perhaps a mistake or that Vance Patrilla's position was somehow mis-categorized, merely generates an issue of fact about whether their proffered business reasons are pretextual; they are not the type of business justifications which warrant a grant of summary judgment.
Furthermore, the Defendants' proffered business reasons for not hiring Watts for three positions, one of which he held for twelve years, also must be viewed in the context of the Defendants' subjective Behavioral Interviewing technique. A plaintiff alleging failure to hire "should not bear the same burden when the criteria used by the defendant are subjective and the process `vague and secretive' as when the case involved objective hiring criteria applied to all applicants." Lyoch v. Anheuser-Busch Cos., Inc., 139 F.3d 612, 615 (8th Cir. 1998) (citing Thomas v. Denny's Inc., 111 F.3d 1506, 1510 (10th Cir. 1997)). Subjective criteria for hiring is easily manipulated allowing an employer to better mask discrimination. See McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129 (8th Cir. 1998).
The Defendants' interviewing process inquired into areas such as spoken communications, commitment to task and ability to motivate, which require the interviewers to make a subjective determination about each candidate's skills. The Defendants defend the Behavioral Interviewing technique, arguing it enables an employer to rate interviewees based on their answers to questions that are intended to assess the interviewee's performance skills and technical skills. However, the record is replete with factual disputes about the accuracy of interviewers' assessments of the candidate's skills.
The Defendants maintain that subjective evaluations can constitute legally sufficient, legitimate basis for an employment decision. Citing Chapman v. A.I. Transport, 229 F.3d 1012, 1033 (11th Cir. 2000) (explaining "subjective reasons are not the red-headed stepchildren of proffered nondiscriminatory explanations for employment decisions. Subjective reasons can be just as valid as objective reasons"). The Court is cognizant of this notion as well as the general presumption that the ADEA may not be a vehicle for the court to replace an employer's business decision with its own. See Bell v. Gas Service Co., 778 F.2d 512, 515 (8th Cir. 1985). However, in the instant case, there appears to be a lack of consensus among the Defendants' personnel who conducted the Behavioral Interviews about the intended effect of those interview scores. Indeed, it appears Watts obtained a higher score than Russel Titus for the Emergency Planning Specialist, and even though at least some personnel testified that the interviewee in receipt of the highest score should be hired for the position, Russel Titus was awarded the position. By contrast, the Defendants support their decision not to hire Watts for the Radwaste Instructor position because his Behavioral testing score was less than Greg Lusted, the person ultimately hired for the job. This Court would be remiss were it to grant summary judgment based on a purported business justification which is underpinned by the Defendants' inconsistent interpretation of subjective hiring and promoting criteria. This seems particularly true in light of the statistics proffered by Watts and the issue of whether his position should have been put "at risk" in the first instance.
Watts also alleges discriminatory age based comments were directed at him by co-employees. It appears however, Watts does not remember who made the comments, when they were made and if they were made by or in front of decisionmakers. Accordingly they appear to be no more than "stray remarks" which do not reflect a discriminatory attitude and are distinct, or have no bearing on the decision-making process. See Kriss v. Sprint Communications Co., 58 F.3d 1276, 1281-82 (8th Cir. 1995) (finding comments that one female employee was a "bitch", another was "ugly," do not necessarily reflect a discriminatory attitude, and constitute little more than `stray remarks in the workplace).
The Court finds Watts has sufficiently generated a question of material fact as to whether the Defendants' business reason was legitimate or pretext for unlawful discrimination. For these reasons, the Defendants' motion for summary judgment as to Watts' age discrimination claims is denied.
2. Disability Discrimination Claims
Watts also contends that the Defendants' actions were a violation of the ADA. "The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability." Sutton v. United Airlines, Inc., 119 S.Ct. 2139, 2143 (1999). To state a claim under the ADA or the ICRA, a plaintiff must show that (1) he is disabled within in the meaning of the ADA; (2) able to fulfill the essential functions of the job, with or without accommodation; and (3) suffered an adverse employment action because of his disability. See Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir.) ( cert. denied, 1205 S.Ct. 174 (1999).
Here again, "Iowa courts look to the ADA, its regulatory interpretations, and its caselaw in construing a disability claim under the ICRA." Berg, 169 F.3d at 1145 n. 5. Thus, this Court's analysis applies to Watts' disability claims under both the ADA and the ICRA.
For purposes of the present motion, the Defendants only take issue with the first prong of the prima facie case — whether Watts is disabled within the meaning of the ADA. An individual is deemed disabled if he has "(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) [is] regarded as having such an impairment." 42 U.S.C. § 12102(2). Watts asserts he is disabled within the meaning of the ADA because (1) his heart condition is a physical impairment which substantially limits numerous major life activities; (2) he has a record of this substantially limiting impairment; and (3) the Defendants perceived his heart condition as a disability. The Court will address each of Watts' assertions in turn.
a. Is Watts' heart condition an impairment which is substantially limiting in a major life activity?
Watts maintains he is disabled within the meaning of the ADA because his heart condition is an impairment which substantially limits him in many major life activities. As an initial matter, Watts' heart condition appears to constitute an impairment as it is defined in the Equal Employment Opportunity Commission's ("EEOC") regulations promulgated pursuant to the ADA — "Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine." 29 C.F.R. § 1630.2 (h); see also Taylor v. Nimock's Oil Co., 214 F.3d 957, 960 (8th Cir. 2000) (citing Weber v. Strippit, Inc., 186 F.3d 907, 913 (8th Cir. 1999), cert. denied, 528 U.S. 1078 (2000) for the proposition that "[h]eart disease is an impairment that, if it substantially limits a major life activity, may constitute a disability.")). The more difficult issue is whether Watts' heart impairment is indeed substantially limiting in a major life activity as defined by the regulations and ancillary case law.
The regulations define major life activities as including "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(j) (1998). Watts contends his heart arrhythmia substantially limits him in the major life activities of breathing, performing manual tasks, standing, walking, and caring for oneself; and, moreover, the combination of these limitations substantially limits him in the major life activity of working. There is certainly evidence in the record to suggest that Watts' condition affects his ability in the abovementioned activities. The question then becomes whether his impairment substantially limits any of those activities. The Court finds it does not.
Again turning to the ADA's accompanying regulations, an impairment is "`substantially limiting' if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform such an activity compared to the general population." Taylor, 214 F.3d at 960, (citing 29 C.F.R. § 1630.2(j)(1)(i)-(ii)). The regulations go on to indicate factors that should be considered in determining whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.29 C.F.R. § 1630.2(j)(2)(i)-(iii).
A careful review of the record reveals Watts' heart impairment only moderately limits him in the major life activities of walking, breathing, caring for oneself, and standing. The evidence in the record suggests that Watts occasionally has difficulty breathing and walking when, for example, he ascends stairs; that on at least two occasions he needed a ride home because his impairment prevented him from driving; and when he was having an arrhythmic episode, he needed to stop whatever he was doing until the episode subsided. These instances, however do not rise to the level of "substantially limiting" any major life activity for purposes of the ADA. See Weber, 186 F.3d at 914 (finding although the plaintiff "did face dietary restrictions and difficulty walking long distances or climbing stairs without getting fatigued, these moderate limitations on major life activities do not suffice to constitute a "disability" under the ADA."); see also Taylor, 214 F.3d at 962 (finding limitations in the life activities of breathing, walking, doing yard work, cleaning house, and having sex are only moderate where plaintiff admitted that she can walk and has walked long distances, including approximately a mile to work, and can perform the activities listed above, although she may have to perform them in moderation).
Similarly, Watts' contention that his arrhythmia substantially limits him in the major life activity of working is unsupported by the record evidence. The following factors may be considered in determining whether an individual is substantially limited in the major life activity of "working":
(A) The geographical area to which the individual has reasonable access;
(B) The 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 (class of jobs); and/or
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).29 C.F.R. § 1630.2(j)(3)(ii). Watts does not allege his impairment disqualifies him from a class of jobs or a broad range of jobs. The whole of Watts' evidence is his impairment resulted in: (1) being restricted from a 10-12 hour work day to an 8 hour work day; (2) being restricted from the plant until he was done with a course of medical treatment (radioactive nuclides); and (3) and being driven home by co-employees when he suffered an arrhythmic episode. This is insufficient to establish one is substantially limited in the major life activity of working. See Taylor, 214 F.3d at 961 (explaining the "inability to perform one particular job does not constitute a substantial limitation on working"); Weber, 186 F.3d at 913 (same).
In coming to the conclusion that Watts' impairment does not substantially limit him any major life activity, the Court was particularly persuaded by what was not in the record. Nowhere in the record does it say how often Watts' arrhythmic episodes occur, if they affect his daily activity, or even his weekly activity. Nowhere in the record does it indicate for example, that Watts cannot climb stairs as a general matter, that he is restricted from walking long distances, or that he cannot stand for long periods of time. Indeed, Watts was asked how often the episodes occur and he could not say. One would presume if they were daily, or even weekly he would remember. What's more, when asked whether the episodes affected his day to day activities he replied no. And finally, while it is clear that medical records are not required in order to establish one has a disability, it gives the Court pause that a plaintiff with a heart history which dates back to childhood, who has undergone surgery, been prescribed medicine and required documentation from a doctor to limit his working hours, does not produce any medical evidence to support his claim of disability.
While it is clear to the Court that Watts' arrhythmic episodes hamper his breathing and cause dizziness which could of course in turn affect his ability to walk, stand, work and presumably many other things, these major life activities must be "substantially limited" in order for the impairment to rise to the level of a disability under the ADA. See Taylor, 214 F.3d at 960, (citing 29 C.F.R. § 1630.2(j)(1)(i)-(ii)). The Court understands that the episodes are unpredictable, but the question still remains does their frequency "substantially limit" Watts' ability to do any of these major life activities? A thorough review of the record reveals the episodes do not. A heart arrhythmia, as a general matter, could rise to the level of a disability under the law. However, there are no facts in this record which would support a finding that Watts' arrhythmia substantially limits any of his major life activities.
b. Does Watts' have a record of a disability within the meaning of the ADA?
As a second line of attack, Watts attempts to establish he is disabled within the meaning of the ADA because he has a record of a disability. One has a record of a disability if one "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k); see also Land v. Baptist Medical Center, 164 F.3d 423, 425 (8th Cir. 1999). The interpretive regulations provide this explanation about a record of disability:
The second part of the definition provides that an individual with a record of an impairment that substantially limits a major life activity is an individual with a disability. The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability. For example, this provision protects former cancer patients from discrimination based on their prior medical history. This provision also ensures that individuals are not discriminated against because they have been misclassified as disabled. For example, individuals misclassified as learning disabled are protected from discrimination on the basis of that erroneous classification.
29 C.F.R. § 1630, App. 1630.2(k). Significantly, one satisfies the definition of a record of disability if the employer relied on a record which indicates the individual has or had a substantially limiting impairment. See Taylor, 214 F.3d at 961. The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual's major life activities. See 29 C.F.R. § 1630.2(k). Medical or employment records are considered records which could satisfy the definition of record of a disability. See 29 C.F.R. § 1630, app., 1630.2(k).
In the instant case, Watts contends that his arrhythmic episode in 1991 which required he be hospitalized constitutes a record of a disability. Further, Watts argues that the evidence supports a finding that the Defendants were well aware of his history of heart trouble. In order for Watts to prevail on a showing that he has a record of disability, he must establish that the record of impairment contains a history of, or a mis-classified mental or physical impairment, that "substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k). Therefore, he must show that his arrhythmia was a disability that substantially limited one or more major life activities, or that the record of his arrhythmia was mis-classified as substantially limiting to one or more major life activities. See Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir. 1998), cert denied, 526 U.S. 113 (1999).
Again, Watts has failed to show that his heart arrhythmia substantially limits or limited him in a major life activity. Watts' cites School Board of Nassau County v. Arline, 480 U.S. 273, 281 (1987) for the proposition that an impairment "serious enough to require hospitalization" is one that substantially limits one or more major life activities. This assertion was flatly rejected by the Eighth Circuit in Gutridge v. Clure, 153 F.3d at 901. There the plaintiff had "five separate surgeries, wraps, splints, medication, work restrictions, and inability to perform simple manual tasks" because of a back impairment. Id. The Gutridge court explained that
We do not interpret Arline to mean that simply being hospitalized establishes a record of impairment under the ADA. See Demming v. Housing and Redevelopment Auth., of Duluth, Minnesota, 66 F.3d 950, 955 (8th Cir. 1995). Such an interpretation would establish the "nonsensical proposition that any hospital stay is sufficient to evidence a `record of impairment.'" Taylor v. United States Postal Serv., 946 F.2d 1214, 1217 (6th Cir. 1991). We reject such a reading of Arline.Id. at 901-02. Instead the Gutridge court concluded that "[d]isability under the ADA requires permanent or long-term impairments, see 29 C.F.R. Pt 1630, App. § 1630.2(j), and impairments while recovering from surgery are not evidence of a permanent disability." Id.
After a careful review of the record, the Court finds Watts has failed to generate an issue of fact as to whether there is a record of his heart condition substantially limiting him in any major life activity.
c. Was Watts regarded as having a disability within the meaning of the ADA?
There are three ways in which an individual may fall within the statutory definition of a perceived disability: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities; or (2) an individual's physical or mental impairment substantially limits a major life activity only as the result of the attitudes of others toward such impairment; or (3) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. See 29 C.F.R. § 1630.2(l); see also Sutton, 119 S.Ct. at 2149. In each case, "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." Id.; see also Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133, 2137 (1999) (noting that a "person is `regarded as' disabled within the meaning of the ADA if a covered entity mistakenly believes that person's actual, nonlimiting impairment substantially limits one or more major life activities."); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319-20 (8th Cir. 1996) (noting "[a] person is `regarded as having' an impairment that substantially limits major life activities when others treat that person as having a substantially limiting impairment").
Watts contends he was regarded as having a disability because the Defendants accommodated him by restricting his work to an eight hour shift on one occasion, and prevented him from entering the plant because of his course of medical treatment on another occasion. Watts also maintains co-employees drove him home from work on two occasions and it was common knowledge about the plant that he suffered from a heart arrhythmia.
Again, the Defendants must have perceived Watts as being substantially limited in a major life activity. See Kellogg v. Union Pacific Railroad Co., 233 F.3d 1083, 1089 (8th Cir. 2000) (citing Murphy, 527 U.S. at 521-22). "Thus, [the] analysis is the same as under an actually disabled claim, but the question here is whether [the Defendants] regarded [Watts] as" being substantially limited in a major life activity. Id. It is not entirely clear what major life activity Watts believes the Defendants regarded him as being substantially limited from doing. What is clear is that restricting Watts to an eight hour work day upon his doctor's request does not reveal the Defendants perceived him being substantially limited in the major life activity of working. See, e.g., Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1206-07 (8th Cir. 1997) (stating "the impairment must prevent the [plaintiff] from performing an entire class or broad range of jobs as compared to the average person possessing comparable training, skills, and abilities" in order to being substantially limiting in the major life activity of working). Nor does preventing one from entering an energy plant during the person's course of radioactive nuclide treatment reveal the Defendants' believed he was substantially limited in the major life activity of working. And finally general knowledge about Watts' impairment and driving him home on two occasions does not rise to the level of archaic stereotypes about one's disability or indicate the Defendants regarded Watts as having a substantially limiting impairment. See Aucutt, 85 F.3d at 1319 (finding knowledge of such an impairment alone does not show an employer regarded the plaintiff as having a disabling impairment); Taylor, 214 F.3d at 961 (concluding that an employer's knowledge of an employee's medical difficulties and expression of concern does not amount to treating an employee as if she has a permanent disability that substantially limits her life activities).
This Court's focus is in part, on "the impairment's effect upon the attitudes of others." Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (citing Byrne v. Board of Education Sch. of West Allis, 979 F.2d 560, 564 (7th Cir. 1992)). Nothing in this record supports a finding that the Defendants harbored "`archaic attitudes' erroneous perceptions, and myths that work[ed] to the disadvantage" Watts based on a perceived disability. Arline, 480 U.S. 273, 279 285.
Even viewing the facts in the light most favorable to Watts, the record does not support a finding that the Defendants regarded him to have a disability within the meaning of the ADA. Because Watts failed to establish this threshold element of his prima facie case, the Defendants' motion for summary judgment is granted as to Watts' disability claims.
ORDER
For the reasons stated herein, the Defendants' motion for summary judgment as to Blaine Watts' claims of disability discrimination pursuant to the ADA and ICRA is GRANTED. The Defendants's motion at to Blaine Watts' claims of age discrimination pursuant to the ADEA and the ICRA is DENIED.
Done and so ordered this 28th day of March, 2001.