Opinion
Civil Action No. 00-10546-GAO
October 30, 2002
MEMORANDUM AND ORDER FOR JUDGMENT
On March 22, 2000, James Whitlock filed a seven-count complaint against his former employer, Mac-Gray, Inc. (Mac-Gray) and two former supervisors, Dale Ingersoll and Michael Winegarden. Count I alleges that Mac-Gray discriminated against Whitlock on the basis of a disability — attention deficit hyperactivity disorder ("ADHD") — in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Count II claims that Mac-Gray created a hostile and abusive work environment in response to plaintiff's disability, also in violation of the ADA. In counts III through VII, Whitlock asserts that Mac-Gray is liable for negligent infliction of emotional distress and that his supervisors, Ingersoll and Winegarden, are liable for both intentional and negligent infliction of emotional distress.
Defendants Mac-Gray and Ingersoll moved for partial summary judgment as to counts I, II, III, VI, and VII. On October 9, 2002, the Court held a hearing on the defendants' motion. Whitlock opposed defendants' motion for partial summary judgment only as to counts I and II, so oral arguments were limited to those claims. Based on my evaluation of the record and the parties' arguments, I conclude that the motion ought to be granted.
Apparently Winegarden, the only defendant named in Counts IV and V, was never served with process.
Summary judgment may be granted where "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). In considering a motion for summary judgment, the Court must examine the record evidence "in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party." Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
To prevail on an ADA claim, a plaintiff has the burden of establishing (1) that he is disabled within the meaning of the ADA; (2) that he is qualified to perform the essential functions of the job; and (3) that his employer took adverse action against him because of his disability. See Carroll v. Xerox Corp., 294 F.3d 231 237 (1st Cir. 2002). Under the ADA, a person may be said to have a "disability" if he (A) has a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (B) has a record of such an impairment; or (C) is regarded as having such an impairment. 42 U.S.C. § 12102(2). For the impairment to be considered "substantially limiting," it must be permanent or long term. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, ___, 122 S.Ct. 681, 691 (2002). Merely having an impairment or submitting evidence of a medical diagnosis does not prove one is disabled for the purposes of the ADA. Id. Rather, an ADA plaintiff is required to present evidence showing specifically how the limitations caused by the impairment have significantly affected a major life activity. See id. at 691-92.
"Major life activities" are those that are "of central importance to daily life." Toyota, 122 S.Ct. at 691. "Working" may qualify as a "major life activity." See 29 C.F.R. § 1630.2(i). But evidence that a person cannot "perform a single, particular job does not constitute [proof of] a substantial limitation in the major life activity of working. Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 240 (1st Cir. 2001); see also Sutton v. United Air Lines, 527 U.S. 471, 491 (1999); Santiago Clemente v. Executive Airlines, 213 F.3d 25, 32 (1st Cir. 2000) ("[T]o be substantially limited in the major life activity of working, [the plaintiff] must be precluded from more than a particular job."). Whitlock thus has the burden of proving that he is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i); accord Carroll, 294 F.3d at 239-40; Whitney v. Greenberg, Rosenblatt, Kull Bitsoli, 258 F.3d 30, 33 (1st Cir. 2001). Proof that one is limited in the ability to perform either a class or broad range of jobs would include evidence about the availability of comparable jobs within an accessible geographic area, the types and numbers of jobs in the area foreclosed because of the impairment, and the types of abilities, skills, and training job applicants would need to qualify. See 29 C.F.R. § 1630.2(j)(3)(ii) (A)-(C); see also Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1115-16 (D.C. Cir.) (en banc) ("[T]he ADA requires a plaintiff . . . to produce some evidence of the number and types of jobs in the local employment market in order to show he is disqualified from a substantial class or broad range of such jobs. . . ."), cert. denied, 122 S.Ct. 49 (2001).
The record supports Whitlock's contention that he experienced difficulties while employed by Mac-Gray, but not that his ADHD caused him to be substantially restricted in his ability to perform a whole range of comparable jobs. In fact, Whitlock admitted both in his deposition and in his failure to dispute that he "was capable of adequately performing his work at Mac-Gray, despite [his] ADHD." (Defs. Mac-Gray's and Ingersoll's Statement of Undisputed Material Facts ¶ 13). He acknowledged that he taught himself to use the company's new computer system and that the company placed great trust in his ability to do his job. The plaintiff failed even to assert, never mind present evidence, that his condition precluded him from working in a broad range or class of jobs, proof that is required to establish that his ADHD constituted a "disability" under the ADA.
The record shows that Whitlock was gainfully employed for Mac-Gray for over twenty years. The evidence that he has a "disability" is limited to a diagnosis of ADHD and his doctor's consequent recommendation that a partioned-off work area would help prevent his becoming distracted and thus improve his ability to concentrate on his work. The doctor also recommended that Mac-Gray consult with Whitlock about making "any architectural changes," because, since plaintiff is in the workplace, he is "in a good position to evaluate what he would need as reasonable accommodation for his disorder." This note is certainly insufficient in itself to establish that Whitlock is disabled within the meaning of the ADA. See Toyota, 122 S.Ct. at 691; Gonzalez v. El Dia, Inc., 304 F.3d 63, 74 (1st Cir. 2002) (conclusory testimony of treating physician insufficient to prove existence of disability under ADA). Whitlock provides no other evidence that his disorder was permanent or long term.
An ADA plaintiff may also establish that he is disabled by showing that his employer regards him as disabled. 42 U.S.C. § 12102(2). To prove that Mac-Gray perceived him as disabled, Whitlock offers evidence of discussions between himself and Mac-Gray management about his need for accommodations to help him work effectively despite his ADHD. But the mere fact that such discussions occurred does not establish that Mac-Gray regarded Whitlock as disabled for ADA purposes. The plaintiff must demonstrate that his employer viewed him as precluded from more than one job. See Sutton, 527 U.S. at 492; Santiago Clemente, 213 F.3d at 32. Whitlock does not contest that he declined an alternative position as a "picker" at Mac-Gray, preferring instead to continue working as a "shipper." (Defs. Mac-Gray's and Ingersoll's Statement of Undisputed Material Facts ¶¶ 30, 31). As previously noted, Whitlock testified at his deposition that he believed he could do his job and he also believed his supervisors thought he could do his job. Thus, the record does not support an inference that Mac-Gray viewed Whitlock as disabled within the meaning of the ADA.
In sum, plaintiff has failed to proffer evidence sufficient to permit a jury to conclude (1) that his ADHD substantially restricted his ability to perform a range of jobs comparable to his position as a shipper in Mac-Gray's parts department and available in the accessible geographical area; (2) that there was a record that he had an impairment that would restrict his ability to work at comparable jobs; or (3) that Mac-Gray regarded him as having such an impairment.
In light of that conclusion, it is not necessary to reach Whitlock's allegations that Mac-Gray discriminated against him on the basis of his ADHD by taking adverse employment actions against him. Nevertheless, I note that Whitlock admitted at his deposition that he voluntarily accepted paid disability leave from Mac-Gray and that he was not coerced into making that decision, even if it is assumed that being placed on involuntary disability leave constitutes an adverse employment action. Moreover, Whitlock also concedes that Mac-Gray made workplace accommodations for him, including agreeing to partition off his work area and permitting him to listen to the radio. Finally, the "abusive treatment" to which Whitlock claims he was subjected (reprimands and negative performance evaluations) were only ordinary and incidental criticism that any supervisor might present against an employee who occasionally produced poor work or broke workplace rules. To prevail on a claim of disability harassment, Whitlock is obliged to establish not only (1) that he is disabled within the meaning of the ADA, but also that (2) he was subjected to unwelcome harassment, (3) that the harassment was based upon his disability, (4) that the harassment was severe or pervasive enough to alter the conditions of his employment and hostile work environment, (5) that the objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it abusive and the victim in fact did perceive it to be so, and (6) that some basis for employer liability has been established. See O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001) (elements of gender-based workplace harassment under Title VII); Ward v. Mass. Health Research Inst., 48 F. Supp.2d 72, 80 (D.Mass. 1999) (assuming without deciding that workplace harassment claim exists under the ADA), rev'd on other grounds, 209 F.3d 29 (1st Cir. 2000). Whitlock has not proffered admissible evidence tending to show that the allegedly harassing conduct toward him was "objectively offensive," and "sufficiently severe and pervasive" such that a reasonable person would find it abusive.
Conclusion
For the reasons stated above, defendants Mac-Gray's and Ingersoll's motion for partial summary judgment as to counts I, II, III, VI, and VII is GRANTED. Counts IV and V against defendant Michael Winegarden are dismissed for failure of service of process.
SO ORDERED.