Bearv.Exxon Mobil Corporation

United States District Court, E.D. LouisianaNov 12, 2004
Civil Action No. 03-798 Section "N" (2) (E.D. La. Nov. 12, 2004)

Civil Action No. 03-798 Section "N" (2).

November 12, 2004


ORDER AND REASONS


KURT ENGELHARDT, District Judge

Before the Court is the Motion for Summary Judgment filed by Exxon Mobil Corporation on September 13, 2004 (Rec. Doc. No. 42). The Court has found that no genuine issue of material fact exists with regard to whether Plaintiff had a "disability," as that term is defined by the ADA, or as to the availability of a light duty job for which Plaintiff was qualified and physically capable of performing. Accordingly, as stated herein, Defendant's motion is GRANTED.

Background

Plaintiff Daniel Bear, a former machinist employee of Exxon Mobil Corporation, has filed suit against his employer pursuant to the American Disabilities Act, 42 U.S.C. § 12101, et seq. His claim stems from a neck injury that he suffered in June 2001 as the result of an on-the-job accident. According to Plaintiff, the 2001 incident exacerbated an injury that had resulted from a 1997 on-the-job accident. Plaintiff ultimately was able to return to his machinist position in October 2002. Unfortunately, he thereafter suffered another injury on May 20, 2003, and, as a result, presently is unable to work.

Plaintiff asserts that Defendant violated the reasonable accommodation provisions of the ADA by not allowing him to return to work in a light duty position, prior to October 2002, as it had when he was injured in 1997. The complaint Plaintiff filed with the Equal Employment Opportunity Commission ("EEOC") identifies the relevant time of discrimination as April 3-15, 2001.

Law and Analysis

I. Summary Judgment Standard

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The materiality of facts is determined by the substantive law's identification of which facts are critical and which facts are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its summary judgment burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed. 2d 265 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178 (5th Cir. 1990). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S. Ct. 2553; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Auguster v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).

When considering a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002), and draws all reasonable inferences in favor of that party. Hunt v. Rapides Healthcare System, L.L.C., 277 F.3d 757, 764 (2001). Factual controversies are to be resolved in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." See id. (emphasis in original) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3188, 111 L. Ed.2d 695 (1990)). Although the Court is to consider the full record in ruling on a motion for summary judgment, Rule 56 does not obligate it to search for evidence to support a party's opposition to summary judgment. Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) ("When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.") Thus, the nonmoving party should "identify specific evidence in the record, and to articulate" precisely how that evidence supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S. Ct. 195 (1994).

The nonmovant's burden of demonstrating a genuine issue is not satisfied merely by creating "some metaphysical doubt as to the material facts," "by conclusory allegations," by "unsubstantiated assertions," or "by only a scintilla of evidence." Little, 37 F.3d at 1075. Rather, a factual dispute precludes a grant of summary judgment only if the evidence if sufficient to permit a reasonable trier of fact to find for the nonmoving party. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002).

The standard for summary judgment mirrors that for judgment as a matter of law. Roberts v. Cardinal Services, Inc., 266 F.3d 368, 373 (5th Cir. 2001), cert. denied, 535 U.S. 954, 122 S. Ct. 1357 (2002). Thus, the Court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence. Id. In reviewing the evidence, the Court must disregard that which is favorable to the moving party but the jury is not required to believe, while giving credence to the evidence favoring the nonmoving party, and the evidence supporting the moving party that is uncontradicted and unimpeached. Id. II. The Americans with Disabilities Act ("ADA")

The ADA prohibits discrimination in employment against qualified persons with a disability. To establish a prima facie discrimination claim under the ADA, Plaintiff must show that he was a qualified individual with a disability and that he suffered an adverse employment action because of that disability. Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847, 853 (5th Cir. 1999). A "qualified individual with a disability" is defined by the ADA as someone who has a disability but 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); Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir. 2001). A reasonable accommodation can include "job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position. . . ." 42 U.S.C. § 12111(9); see also, e.g., Burch v. City of Nacogdoches, 174 F.3d 615, 620 (5th Cir. 1999). As defined by the ADA, the term "discrimination" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . ." unless an "undue hardship on the operation of the business" is demonstrated. 42 U.S.C. § 12112(b)(5)(A).

The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).

The term "disability" as used in the ADA means: "(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) being regarded as having such an impairment." 42 U.S.C. § 12102(2). "Major" in the phrase "major life activities" means important. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 691 (2002) (citing Webster's Third New International Dictionary 1363 (1976) (defining "major" as "greater in dignity, rank, importance, or interest")). Thus, as recently stated by the Supreme Court, the term "major life activities" refers to those activities that are of central importance to most people's daily lives. Toyota Motor Mfg., Kentucky, Inc., 534 U.S. at 197, 122 S. Ct. at 691. Regulations promulgated pursuant to the Rehabilitation Act, as well as regulations promulgated by the EEOC, define "major life activities" as functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i); 45 C.F.R. § 84.3. These lists are not exclusive. The Appendix to § 1630 suggests that other major life activities could include lifting, sitting, standing, and reaching. See 29 C.F.R. § 1630, Appendix to Part 1630-Interpretive Guide on Title I of the Americans with Disabilities Act, § 1630.2(1).

To demonstrate a "disability" under the ADA, Plaintiff must also show that the limitation on the major life activity is "substantia[l]." 42 U.S.C. § 12101(2)(A). "[S]ubstantially" in the phrase "substantially limits" suggests "considerable" or "to a large degree." Toyota Motor Mfg., Kentucky, Inc. 534 U.S. at 196-97, 122 S. Ct. at 691 (citing Webster's Third New International Dictionary 2280 (defining "substantially" as "in a substantial manner" and "substantial" as "considerable in amount, value, or worth" and "being that specified to a large degree or in the main")). According to the EEOC regulations, "substantially limit[ed]" means "[u]nable to perform a major life activity that the average person in the general population can perform"; or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j) (2001). In determining whether an individual is substantially limited in a major life activity, the EEOC regulations instruct that the following factors should be considered: "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he 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. Disability

Plaintiff contends that he satisfies the ADA's disability requirements because,

[a]fter the exacerbation of his cervical condition, he could not engage in recreational sports; had curtailed his church attendance from 3 [times] per week to 1-2 [times] per month; had eliminated household chores such as washing the car and the bathtub; all yard work such as gardening, cutting and "weed-eating" the grass; household maintenance, i.e., washing [the vinyl siding on his house annually to prevent mildew growth], painting, and making carpentry repairs; and all grocery shopping except for small items quickly purchased. He was limited in his ability to have sexual intercourse with his wife with respect to frequency, duration, and satisfaction. There were months when he was unable to have intercourse.

Plaintiff's October 7, 2004 opposition memorandum identified this task only as "washing." At the Court's request, Plaintiff provided additional explanation. See Plaintiff's Response to Minute Entry, October 27, 2004, which was submitted to the undersigned on November 2, 2004.

According to Plaintiff, he still suffered many of these limitations when he returned to work in October 2002. Specifically, Plaintiff states:

Plaintiff's opposition memorandum identifies this period as "his RTW." See Plaintiff's Opposition to Motion to Dismiss at 2 (Rec. Doc. No. 47). The Court has assumed that "RTW" means "return to work" and refers to October 2002.

For example, he was able to do short hiking; he increased his church attendance to 30-50%; he was still unable to wash the car or bathtub or do the yard work or any household maintenance; he was able to increase his ability to do grocery shopping, but still could not "make a full basket"; his sexual ability had returned to 30%. Otherwise they were the same.

The original memorandum submitted by Defendant in support of its motion for summary judgment focused on whether Plaintiff suffered a disability in "working." Plaintiff's opposition memorandum, however, asserts that Plaintiff's "disabilities lay in major life activities other than working." See Plaintiff's Opposition to Motion to Dismiss at 1.

1. Household Chores, Yard Work, and Household Maintenance

The Court agrees that performing basic household chores, i.e. those that are necessary to maintain a sanitary environment, is an activity that is of central importance to most people's daily lives and, thus, constitutes a major life activity under the ADA. See, e.g., Toyota Motor Mfg., Kentucky, Inc. 534 U.S. at 202, 122 S. Ct. at 693 ("household chores . . . are among the types of manual tasks of central importance to people's daily lives"); Marinelli v. City of Erie, Pennsylvania, 216 F.3d 354, 362-63 (3d Cir. 2000) (cleaning is a major life activity to the extent necessary to live in a healthy or sanitary environment). The Court disagrees, however, that these basic household chores include washing the car, gardening, cutting and "weed-eating" the grass, washing vinyl siding, painting the house, and making carpentry repairs. See, e.g., Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (shoveling snow, gardening, mowing the lawn, playing tennis, fishing, and hiking are not major life activities); Colwell v. Suffolk Cty. Police Dept., 158 F.3d 635, 643 (2d Cir. 1998) (driving, mechanical work on cars, housework other than basic chores, going shopping at the mall with spouse, skiing, golfing, moving furniture, yard work, painting, plastering, gardening, and shoveling snow are not major life activities). Although the Court recognizes that these activities may be important to the daily lives of some persons, the Court does not find that they have the same significance as the activities that have been specifically identified as constituting major life activities, e.g., breathing, seeing, walking, bathing, brushing one's teeth, and working. See Amir v. St. Louis University, 184 F.3d 1017, 1027 (8th Cir. 1999) ("[m]ajor life activities do not include those activities that, although important to the individual plaintiff, are not significant within the meaning of the ADA").

The Court is aware that "performing manual tasks" is included in the regulations' lists of major life activities. See 45 C.F.R. § 84.3; 29 C.F.R. § 1630.2(i). That category includes individual tasks that independently are central to daily life and manual tasks that cumulatively qualify as a major life activity. See Toyota Motor Mfg., Kentucky, Inc. 534 U.S. at 197, 122 S. Ct. at 691 ("If each of the tasks included in the major life activity of performing manual tasks does not independently qualify as a major life activity, then together they must do so.").

Even if the undersigned is incorrect on this point, however, and these tasks should be considered as among the basic household chores that constitute a major life activity, or if the major life activity of "performing manual tasks" is implicated, the Court additionally concludes that the inability to do only those particular tasks does not constitute a "substantial limitation" of a major life activity. Finally, though cleaning the bathtub reasonably can be considered a basic household chore, the Court likewise does not find that the inability to complete that single task is a substantial limitation on that major life activity.

2. Grocery Shopping

Again, the Court does not disagree that purchasing groceries is a major life activity. The Court further recognizes that being limited to "small, quick purchases" and/or buying less than "a full basket" means that Plaintiff arguably performed this task in a somewhat different manner than the average person in the general population. These differences, however do not rise to the level of "severe restrictions." Further, as of April 2002, Plaintiff's condition had improved over time and was expected to achieve at least slight additional improvement. Indeed, as of October 2002, Plaintiff's ability to shop for groceries had increased, and he was able to perform the essential functions of his machinist position, albeit with certain restrictions. Given these circumstances and the limited nature of the restriction, the Court does not find that Plaintiff's reduced ability to shop for groceries substantially limited a major life activity.

See Exhibits 13, 14, 15A (BEAR-XOM 0379), and 16C (BEAR-XOM 0135) to Defendant's motion for summary judgment.

See Exhibits 11 and 27 to Defendant's motion for summary judgment.

3. Recreational Sports

Plaintiff's opposition memorandum does not identify the particular activities — other than hiking — that he considers to qualify as "recreational sports." Without further specificity, the Court finds that, with respect to these activities, Plaintiff has not demonstrated a genuine issue of material fact as to whether his impairment "substantially limits" a major life activity. Assuming that Plaintiff refers to activities like golf, basketball, baseball, hunting, and fishing, the Court does not find these to be major life activities. See Weber, supra; Colwell, supra; see also Shannon v. Henderson, 275 F.3d 42, 2001 WL 1223633 (5th Cir. 2001) (unpub.) (recreational hunting not a major life activity)

Although not itself determinative of the "substantial limitation" issue for summary judgment purposes, the Court additionally notes that from July 2001 to October 2002, Plaintiff's condition apparently improved such that he could at least do "short hiking" and could perform the essential tasks of his machinist position, albeit with certain restrictions. See Exhibits 11 and 27 to Defendant's motion for summary judgment.

4. Church Attendance

Like the parties, the Court has identified only one case offering any treatment of the issue of whether church attendance is a major life activity for purposes of the ADA. See Barfield v. Bell South Telecommunications, Inc., 886 F. Supp. 1321, 1324-25 (S.D. Miss. 1995). There, as Plaintiff states in his supplemental brief, the court assumed that church attendance qualified as a major life activity, but did not address the issue at any length. Further, the court determined that there had been no substantial limitation of that activity.

This Court finds it significant that the Barfield decision was rendered without the benefit of the Supreme Court's decision in Toyota Motor Mfg., Kentucky, Inc. v. Williams, supra. There, the Supreme Court emphasized that to be a "major life activity," the activity must be of "central importance to the daily lives of most people." Furthermore, the Court indicated that the term "major life activities" "need[s] to be interpreted strictly to create a demanding standing for qualifying as disabled. . . ." Id. at 197-98, 122 S. Ct. at 691.

Given this cautionary language, as well as the type of activities identified by the regulations as "major life activities," this Court is unwilling at this time to conclude that attendance of religious services is itself a major life activity. Again, although the Court recognizes that attending religious services certainly is important to many people, the Court does not find that it has the same legal significance to daily life as do the activities that have been specifically identified by the regulations and jurisprudence as constituting major life activities, e.g., breathing, seeing, walking, bathing, brushing one's teeth, and working. Without venturing into a discussion of various religious doctrines, the Court notes that it generally is possible to hold and practice a religious faith without necessarily congregating at a formal place of worship, outside of one's home, for religious services or ceremonies.

Furthermore, Plaintiff complains that his church attendance initially dropped from 12 times per month to 1-2 times per month. As previously stated, as of April 2002, Plaintiff was expected to achieve at least slight additional improvement of his condition. Consistent with this expectation, Plaintiff's church attendance had improved to 30-50% by October 2002, which the Court understands to mean that he attended church 4-6 times per month. Plaintiff has not offered evidence, and the Court will not assume, that attending church only 1-2 times per month with the expectation of some possible future increase, and certainly not 4-6 times per month, is significantly less frequent than the average person's monthly attendance rate. Accordingly, the Court does not find that Plaintiff's claimed reduction in church attendance demonstrates that a major life activity has been substantially limited.

See Note 7, supra. Plaintiff certainly has not pointed to any medical evidence indicating that, as of April 2002, no future improvement in his ability to attend church was expected, or that his condition was expected to worsen. As previously stated, the EEOC regulations indicate that "[t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment" is to be considered in determining whether a major life activity has been substantially limited. See 29 C.F.R. § 630.2(j)(2)(iii).

5. Sexual Activity

The Court assumes that non-reproductive sexual activity is a major life activity under the ADA. See McAlindin v. County of San Diego, 192 F.3d 1226, as amended on den'l of reh'g, 201 F.3d 1211 (9th Cir.), cert. denied, 530 U.S. 1243, 120 S. Ct. 2689 (2000). As set forth above, Plaintiff offers conclusory allegations of a reduced ability to have and enjoy sexual intercourse with his wife. Significantly, however, Plaintiff has offered no medical or other objective evidence to establish a causal connection between his neck injury and his sexual problems, the usual extent of such problems, or that the situation could not be significantly improved with time, medication, or other measures. See Contreras v. Suncast Corp., 237 F.3d 756, 764 (7th Cir. 2001) (claim of sexual difficulties without documentation or testimony beyond a general assertion of decreased frequency cannot create a genuine issue of material fact); see also Watkins v. Roadway Express, Inc., 273 F.3d 1094, 2001 WL 1085103 (5th Cir. 2001) (unpub.) (assertion of reduced sexual ability unsubstantiated by medical testimony or other evidence insufficient to permit jury to find disability).

Similarly, Plaintiff's opposition memorandum does not demonstrate that his ability to have and enjoy sexual intercourse was expected to be significantly restricted in terms of condition, manner or duration, as compared to the average fifty-year old male in the general population, for a substantial period of time. Plaintiff offers only that as of the time he returned to work, his sexual ability had improved to 30%. The Court assumes that this statement means 30% of what Plaintiff's sexual abilities were prior to the June 2001 accident. Although this information provides the Court with some indication of the impact of injury, it alone does not allow for an objective comparison with the sexual abilities of an average person in the general population. Accordingly, this Court, as did the Eighth Circuit in Taylor v. Nimrock's Oil Co., 214 F.3d 957, 960 (8th Cir. 2000), must conclude that Plaintiff at most suffered a moderate, and not substantial, limitation of this major life activity.

See Note 10, supra.

B. Reasonable Accommodation

As previously stated, a reasonable accommodation for a qualified person with a disability can include "job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position. . . ." 42 U.S.C. § 12111(9). Plaintiff contends that he should have been offered a light duty job as a reasonable accommodation for work limitations resulting from his neck injury. Defendant maintains that there were no light duty jobs for which Plaintiff was qualified and physically able to perform during the relevant time period.

Absent an undue hardship, an employer is obligated to reassign a disabled employee to a different position if one exists and is vacant, the employee is qualified for the alternative position in terms of skill, experience, education and other job-related requirements, and the employee is physically capable, with or without reasonable accommodation, of performing the alternative job. Burch, 174 F.3d at 620-22; Foreman v. Babcock and Wilcox Co., 117 F.3d 800, 810 and n. 14 (5th Cir. 1997). The ADA, however, does not require an employer to create a light duty job to accommodate an employee who suffers from a disability. See, e.g., Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996).

In his opposition memorandum, Plaintiff makes the general assertion that there were light duty jobs available that he could have done at Exxon Mobil during the time he was not at work. In terms of identifying specific positions, however, he asserts only that "[a]mong the light duty jobs available was one assisting Bear's foreman, Raymond Eisler." Notwithstanding his obligation under Rule 56 to identify specific evidence in the record and explain how it supports his claim, Plaintiff does not include a citation to evidence supporting this assertion. Plaintiff, however, did attach his own declaration and those of three Exxon Mobil employees and union leaders to his opposition memorandum. Having reviewed those documents, as well as other evidence included in the parties' summary judgment submissions, the Court concludes that Plaintiff has not demonstrated a genuine issue of material fact with respect to whether a light duty job that he could have performed was available during the relevant time period. Thus, even if Plaintiff did suffer a disability for purposes of the ADA, which the Court has determined he did not, his reasonable accommodation argument nonetheless fails.

See Plaintiff's Opposition at p. 6.

Specifically, Plaintiff's declaration states only that he temporarily performed a light duty job when he was injured in 1997, and that, at some unspecified time, he saw several employees, including Vincent Mastascuso, performing light duty in the machine shop. These statements do not demonstrate that a light duty job was vacant during the time period relevant to Plaintiff's June 2001 injury.

See Declaration of Daniel Bear at ¶¶ 3-4.

The declaration of Earl Gonzales, the union president, states only that light duty assignments have been made in the warehouse and the lab, and identifies one of the light duty employees by name. Similar to the shortcomings of Plaintiff's declaration, Mr. Gonzales's statements do not confirm that any light duty jobs for which Plaintiff was qualified and physically capable of performing were available during the time period at issue. The declaration of Billy Serigne, a union committee person, also offers no help, because it likewise does not identify any specific positions that were available and appropriate for Plaintiff. Indeed, Mr. Serigne's statement that "[i]t has been my experience that the company finds something for the injured employee to do," arguably suggests that Defendant would have had to "create" a job for Plaintiff, which the law does not require Defendant to do.

See Declaration of Earl Gonzales at ¶¶ 3-5.

The declaration of Ronnie Brown, another union committee person, also recognizes Defendant's practice of putting injured employees in light duty positions outside their job classifications, and references Plaintiff's temporary placement in a light duty job in 1997. It further provides, in pertinent part: "The company can always find something for an injured employee to do. For example, Bear could have worked in planning or in the machine shop assisting his supervisor putting in work orders." Mr. Brown's declaration, however, does not unequivocally articulate that these positions — whether permanent or temporary — were actually available at the relevant time. Nor does it sufficiently demonstrate his personal knowledge of the requirements of the jobs and that Plaintiff could satisfy them.

See Declaration of Ronnie Brown at ¶¶ 4-5.

Id. at ¶¶ 3-4.

Other summary judgment evidence reveals similar deficiencies. With regard to planning, Mr. Brown's deposition testimony states that no permanent positions were available, and lacks clarity regarding the actual availability of a temporary planning job in that department. It also does not provide the factual basis for Mr. Brown's belief that Plaintiff was qualified for a position in that department, if one was available.

See Deposition of Ronnie Brown at pp. 27-28 ("There were no permanent job-type openings or anything. But they would always have special assignments and temps here and temps there.").

The Court additionally notes that Plaintiff's opposition memorandum does not specifically reference the planning department in stating that appropriate light duty jobs were available.

Although Mr. Brown's deposition testimony repeats his assertion that he believed Plaintiff could assist machine department supervisors in placing work orders, it further indicates that the position would be a "temporary supervisor" position. The deposition testimony of Human Resources Specialist Shauna Seals, as well as documents in her file, indicate that a determination was made, based on Plaintiff's test results and reported job performance, that Plaintiff was not qualified for a temporary supervisor position. Plaintiff has put forth no evidence contradicting the validity of this determination.

See Deposition of Ronnie Brown at pp. 45-46.

See Deposition of Shauna Seales at p. 31, which is Exhibit 12 to Defendant's motion for summary judgment; Notes Taken by Shauna Seales, which are Exhibit 5C to Defendant's motion for summary judgment.

Conclusion

Plaintiff has not demonstrated that a genuine issue of material fact exists with respect to whether he suffered a disability, as that term is defined by the ADA, during the time period relevant to this suit. He also has not shown a genuine issue of material fact with respect to whether a light duty job for which he was qualified and physically capable was available. Accordingly, Defendant's motion for summary judgment is GRANTED and Plaintiff's suit is DISMISSED WITH PREJUDICE.

Defendant has raised additional arguments in support of its motion. Given its rulings herein, the Court does not reach Defendant's other arguments.