Opinion
8:02CV451
March 2, 2004
MEMORANDUM AND ORDER
This matter is before the court on filing no. 31, the Motion for Summary Judgment filed by the defendant, the City of Omaha; and filing no. 35, the Motion for Summary Judgment filed by the plaintiff, Vivian Williams. In her Amended Complaint (filing no. 16), the plaintiff alleges employment discrimination based on her disability and race, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981. The plaintiff alleges: (1) that the defendant failed to accommodate her disability, and (2) that the defendant discriminated against her, because of her race and disability, by terminating her employment with the City of Omaha Public Works Department.
SUMMARY JUDGMENT STANDARD
Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett. 106 S.Ct. 2548, 2555 (1986). With respect to a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. See, e.g., Brandt v. Davis, 191 F.3d 887, 892 (8th Cir. 1999) ("Summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.").
When deciding or reviewing cross-motions for summary judgment, the approach is only slightly modified, as explained inInternational Brotherhood of Electrical Workers. Local 176 v. Balmoral Racing Club. Inc.. 293 F.3d 402, 404 (7th Cir. 2002):
The usual Rule 56 standard of review applies to cross-motions for summary judgment, and our review is de novo. . . . To the extent that [the losing party] challenges the court's decision to grant summary judgment in favor of the [prevailing party], we construe the record in the light most favorable to [the losing party]. . . . To the extent that [the losing party] asserts that the court erred in refusing to grant its own motion for summary judgment, the record is evaluated in the light most favorable to [the prevailing party]. . . . Either way, summaryjudgment is proper if the record demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law under the familiar standards of Fed.R.Civ.P. 56(c).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 106 S.Ct. at 2553. In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986) (emphasis in original). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
"[T]he mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment as a matter of law. . . . Instead, `the dispute must be outcome determinative under prevailing law.'" Get Away Club. Inc. v. Coleman. 969 F.2d 664, 666 (8th Cir. 1992) (citations omitted). Accord Dico, Inc. v. Amoco Oil Co. 340 F.3d 525, 529 (8th Cir. 2003).
When reviewing the record in connection with a pending motion for summary judgment, the court may not weigh the evidence, determine credibility, or decide the truth of any factual matter in dispute. However, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby. Inc.. 106S. Ct. 2505, 2511 (1986).
TITLE VII
In filing no. 31, the defendant first contends that the plaintiff failed to exhaust her administrative remedies as to the claim of racial discrimination under Title VII. "[A] claim is administratively exhausted if it is specifically stated in, grows out of, or is reasonably related to the substance of the allegations in an administrative charge or complaint." Russell v. TG Missouri Corp.. 340 F.3d 735, 747 (8th Cir. 2003). Thus, a plaintiff may seek relief in court for any discrimination that can reasonably be expected to grow out of the investigation into the substance of the administrative charge or is like or reasonably related to the allegations in the charge. Kells v. Sinclair Buick-GMC Truck, Inc. 210 F.3d 827.836 (8th Cir. 2000). "Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Wallin v. Minnesota Dept. of Corrections. 153 F.3d 681, 689 (8th Cir. 1998), citing Williams v. Little Rock Mun. Water Works. 21 F.3d 218, 223 (8th Cir. 1994).
The plaintiff filed a charge of discrimination with the Nebraska Equal Opportunity Commission ("NEOC") on July 20, 2001, and a second charge with the NEOC on March 28, 2002. Both charges allege disability discrimination, but neither charge alleges, or even mentions, discrimination based on race. Racial discrimination is not within the scope of the matters which the plaintiff brought before the NEOC. Therefore, the defendant's motion for summary judgment will be sustained insofar as the motion seeks dismissal of the plaintiff's Title VII claim of racial discrimination.
HARASSMENT, RETALIATION, RESPONSIBILITY
In filing no. 35, the plaintiff moves for summary judgment on several claims which also are beyond the scope of her NEOC charges. The plaintiff alleges that she sustained an injury on the job on July 23, 1999, and that the defendant "is responsible for" her injury. The plaintiff also contends that the defendant harassed and retaliated against her after July 23, 1999 because of her injury. Those claims exceed the scope of the plaintiff's administrative charges and must be dismissed. Therefore, insofar as the plaintiff seeks to proceed with any claims relating to responsibility for her injury or harassment and retaliation on account of her injury, the plaintiff's motion for summary judgment will be denied, and the defendant's motion for summary judgment will be granted.
The only acts of retaliation described in the plaintiff's NEOC charges relate to alleged acts of vindictiveness in retaliation for her efforts to obtain accommodation and for filing her first NEOC complaint. The plaintiff has not pursued those claims. The present allegations of reprisals inflicted because the plaintiff sustained a back injury at work exceed the scope of her administrative charges. See generally Artis v. Francis Howell North Band Booster Ass'n. Inc.. 161 F.3d 1178, 1183 (8th Cir. 1998) (an administrative charge of retaliation for disparate treatment of students was not like or reasonably related to a claim of retaliation for filing a grievance related to racial harassment).
On the other hand, while a claim of race-based employment discrimination under Title VII requires exhaustion of administrative remedies, a claim under 42 U.S.C. § 1981 does not. See, e.g.,Winbush v. State of Iowa By Glenwood State Hosp.. 66 F.3d 1471, 1486 (8th Cir. 1995): "Suits under § 1981 do not require the administrative exhaustion procedures found under Title VII." AccordWalker v. Thompson. 214 F.3d 615, 625 (5th Cir. 2000). The defendant's only stated basis for dismissal of the plaintiff's racial discrimination claim relates to failure to exhaust. Therefore, the plaintiff's claim under 42 U.S.C. § 1981 of racially-motivated wrongful discharge will not be dismissed.
ADA
The defendant seeks summary judgment on the plaintiff's ADA claim, on the ground that the plaintiff is not a "qualified person with a disability" because she is not disabled and she is not "qualified." The plaintiff moves for summary judgment on the issue of the defendant's failure to accommodate her disability, asserting that an indefinite leave of absence constitutes a reasonable accommodation which the defendant should have extended to her.
To establish a prima facie case of discrimination on an ADA claim, the plaintiff must establish that: (1) she is disabled within the meaning of the ADA; (2) she is qualified to perform the essential functions of her job with or without reasonable accommodation; and (3) she suffered an adverse employment action under circumstances which give rise to an inference of unlawful discrimination based on disability.Greer v. Emerson Elec. Co.. 185 F.3d 917, 921 (8th Cir. 1999); Snow v. Ridgeview Medical Center, 128 F.3d 1201, 1206 (8th Cir. 1997).
"Disability"
Disability is defined as "a physical or mental impairment that substantially . . . limits one or more of the plaintiff's major life activities." See 42 U.S.C. § 12102(2)(A)-(C). The plaintiff may prove disability by showing that she (1) has a disability as defined under the ADA; (2) suffers from a history of such a disability; or (3) was perceived by her employer as having such a disability. Id.
"Substantially Limits"
"To `substantially limit1 a major life activity means to render an individual unable to perform a basic function that the average person in the general population can perform, or to significantly restrict the condition, manner, or duration under which an individual can perform a particular major life activity as compared to an average person in the general population. 29 C.F.R. Pt. 1630, App. § 1630.2(j). The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working.'Id. § 1630.2(i). Rather, the impairment must prevent the [individual] from performing an entire class or broad range of jobs as compared to the average person possessing comparable training, skills, and abilities. Aucutt v. Six Flags Over Mid-America, Inc. 85 F.3d 1311, 1319 (8th Cir. 1996). . . Finally, the following factors are considered in determining whether a person is substantially limited in a major life activity: (1) the nature and severity of the impairment, (2) its duration or anticipated duration, and (3) its long-term impact.Id." Snow v. Ridgeview Medical Center. 128 F.3d 1201, 1206-07 (8th Cir. 1997).
There remain issues of fact as to whether the plaintiff was disabled when she was discharged. However, in light of the uncontroverted facts in the record, the plaintiff cannot be considered "qualified," at that time, to perform the essential functions of her job.
"Qualified Individual"
Under the ADA, a "qualified individual" is a person 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). The determination whether the plaintiff was a "qualified individual" must be made as of the date of the challenged employment decision. See Browning v. Liberty Mutual Insurance Co.. 178 F.3d 1043, 1048-1049 (8th Cir.),cert. denied, 120 S.Ct. 588 (1999):
The ADA is broad in its scope, but it only protects individuals who can perform their job. [The plaintiff] was terminated while recovering from her injury, and prior to the point in her recovery when she could once again perform the essential functions of her job. The fact that she continued to heal, gain strength and use of her arm, once again becoming a qualified individual who could perform the essential functions of the job, does not obviate the fact that she was not a qualified individual at the time of her termination, and thus not under the protective umbrella of the ADA.
The plaintiff had back surgery, used all available family medical leave under the Family Medical Leave Act ("FMLA"), and then still could not return to work. She requested an indefinite leave of absence, but instead, the defendant terminated her employment. The defendant has a policy, which it communicated to the plaintiff, that an employee's job is protected for a maximum of 12 weeks. The plaintiff's FMLA leave expired on August 15, 2001. When the defendant subsequently contacted the plaintiff on September 7, 2001 to inquire as to her medical status and whether she could resume her employment duties, the defendant learned that the plaintiff's doctor would not release her to return to work with or without accommodation. After a few more months without change in the plaintiff's status, the defendant discharged the plaintiff on January 22, 2002.
The ability to come to work is fundamental to performing the essential functions of employment. See, e.g., Epps v. City of Pine Lawn. 353 F.3d 588, 593 n. 5 (8th Cir. 2003), citing Nesser v. Trans World Airlines. Inc. 160 F.3d 442, 445 (8th Cir. 1998):
In addition, Epps failed to establish that he was qualified to perform the essential functions of the job, with or without accommodations. His excessive absenteeism from work rendered him unable to perform the job, and time off of work was not a reasonable accommodation in this instance. Attendance at work is a necessary job function. Nesser, 160 F.3d at 445. "An employee who is unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones.'" Id. (quoting Moore v. Payless Shoe Source. Inc. 139 F.3d 1210, 1213 (8th Cir. 1998)).
Accord Pickens v. Soo Line Railroad Co.. 264 F.3d 773.777 (8th Cir. 2001): "This court has consistently held that `regular and reliable attendance is a necessary element of most jobs.'" (Citations and internal quotation marks omitted.)
Thus, whether or not the plaintiff can establish disability, she cannot avert summary judgment in favor of the defendant on the issue of her qualification to perform the essential functions of the employment position. The relevant standard is whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). There is no evidence in the record on which a jury could find that an individual unable to come to work in January 2002 could perform the essential functions of the plaintiff's job. Reasonable Accommodation
The plaintiff does not argue that she could have resumed her employment when her FMLA leave expired and thereafter, but she contends that she was entitled under the ADA to an indefinite leave of absence with a right to return to her job at an indeterminate time in the future. The plaintiff characterizes such indefinite leave as the kind of "reasonable accommodation" required by the ADA.
"An employer commits unlawful discrimination under the ADA if the employer does `not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]." Fjellestad v. Pizza Hut of America. Inc., 188 F.3d 944, 951 (8th Cir. 1999). See alsoKells v. Sinclair Buick-GMC Truck. Inc.. 210 F.3d 827.833 (8th Cir. 2000): "In addition to prohibiting discrimination on account of disability, the ADA imposes an affirmative duty on employers to provide `reasonable accommodations to the known physical or mental limitations' of their employees. 42 U.S.C. § 12112(b)(5)(A). An accommodation is simply some change or modification in the work environment which allows an individual with a disability to participate on an equal footing with non-disabled employees. 29 C.F.R. § 1630.2(o)(1)(iii). Reasonable accommodations might include special training, restructured work schedules, or modifications of workplace equipment and devices."
However, the law does not support the plaintiff's view that the obligation to engage in reasonable accommodation extends to granting a leave of absence for an indefinite period. See, e.g., Wood v. Green. 323 F.3d 1309, 1313 (11th Cir. 2003):
Significantly, these provisions [ 42 U.S.C. § 12111(8); 45 C.F.R. § +1232.3(i)] contain no reference to a person's future ability to perform the essential functions of his position. To the contrary, they are formulated entirely in the present tense, framing the precise issue as to whether an individual "can" (not "will be able to") perform the job with reasonable accommodations. Nothing in the text of the reasonable accommodation provision requires an employer to wait for an indefinite period for an accommodation to achieve its intended effect. Rather, reasonable accommodation is by its terms most logically construed as that which, presently, or in the immediate future, enables the employee to perform the essential functions of the job in question.
See also Epps v. City of Pine Lawn. 353 F.3d 588, 593 n. 5 (8th Cir. 2003), citing Nesser v. Trans World Airlines. Inc.. 160 F.3d 442, 445 (8th Cir. 1998):
Even though attendance is an essential function of the job, the ADA requires employers to reasonably accommodate the disability, unless the accommodation would impose an undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A). The employee must show that a reasonable accommodation was available. Nesser, 160 F.3d at 446. Epps, however, failed to show that a reasonable accommodation existed. Epps asserts that the six-month leave of absence was reasonable; however, Pine Lawn, a small municipality, could not reallocate Epps's job duties among its small staff of fifteen to twenty-two police officers. An employer is not required to hire additional people or assign tasks to other employees to reallocate essential functions that an employee must perform. Hatchett v. Philander Smith Coll. 251 F.3d 670, 675 (8th Cir. 2001).
THEREFORE, IT IS ORDERED:
1. That filing no. 31, the defendant's Motion for Summary Judgment, Is granted in part and denied in part as follows:
a. The Plaintiff's claims under Title VII are dismissed;
b. The plaintiff's claims under the ADA are dismissed;
c. The only claim remaining for trial is the plaintiff's racial discrimination claim under 42 U.S.C. § 1981, i.e., the claim of racially-motivated wrongful discharge;
2. That filing no. 35, the plaintiff's Motion for Summary Judgment, is denied; and
3. That as this case has been on file for 17 months, and the issues are now joined, no further motions to amend the complaint will be granted.