Summary
stating that plaintiff's "inability to work overtime rendered him unable to perform the essential function of working in emergency situations" required of snow plow operators
Summary of this case from Smith v. Burlington CountyOpinion
No. 8:00CV313
December 5, 2001
MEMORANDUM AND ORDER AND JUDGMENT
Before this court are (1) Motion for Summary Judgment, Filing No. 35, filed by the plaintiff, Timothy Dropinski (Dropinski); (2) Motion for Summary Judgment, Filing No. 37, filed by the defendant, Douglas County; (3) Motion in Limine, Filing No. 46, filed by Dropinski; and (4) Motion in Limine, Filing No. 47, filed by Douglas County. Both parties submitted supportive and responsive briefs and indexes of evidence. Filing Nos. 36 and 38.
In his complaint, Dropinski claims that Douglas County unlawfully discriminated against him in violation of the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Nebraska Fair Employment Practices Act.
BACKGROUND
Dropinski was employed by Douglas County as an Automotive Equipment Operator II (AEO II) for approximately five years. Dropinski's supervisor was Mike Vazzano, the road maintenance supervisor for Douglas County. The written job description for the AEO II position reads in pertinent part as follows:
Primary Function
Under the supervision of the County Engineer or designee, the incumbent performs skilled work in the operation of specialized road maintenance and construction equipment.Duties and Responsibilities
1. Safely and efficiently operate tandem axle dump trucks and other equipment/machinery, including but not limited to: flusher truck, asphalt lay down machine, oil distributor, crack sealer, self propelled roller, skid steer, tractors and related attachments such as mower, auger, seeder, etc.
2. Operate assigned equipment for the removal of ice and snow from roadways.
3. Occasionally operate heavy equipment, including, but not limited to, front end loader as directed.
4. Perform semi-skilled and unskilled laborer tasks incidental to equipment operation or as assigned.
5. Assist maintenance personnel in making mechanical repairs and adjustments to equipment as required. . . .
6. Assist mechanics in minor repairs and maintenance to equipment.
7. Assist in cleaning of job sites and equipment. . . .
Basic Skills and Abilities Required
8. Ability to work and complete duties with minimum supervision.
9. Ability to follow written and oral instructions.
10. Ability to conform to scheduling demands which may include weekends, emergency call-ins and overtime.
11. Ability to learn the geography of Douglas County.
12. Ability to lift objects weighing up to 100 pounds.
13. Considerable knowledge of the operation, maintenance and use of tandem and single axle trucks and related equipment.
14. Physical strength and agility necessary to perform manual labor out-of-doors in varying weather conditions. . . .
Filing No. 38, Ex. 1.
While at work on December 1, 1997, Dropinski fell, injuring his back. As a result of the injury, Dropinski was unable to work until January 19, 1998. Dropinski's back pain resurfaced on May 7, 1998, while operating the line striper. Dropinski claims that the twisting involved with operating the striper caused stress on his back. Dropinski left early that day and took off the next day because of the severe pain. On July 2, 1998, Dropinski again left work early because of stress on his back pain that occurred while operating the line striper. Filing No. 1, Complaint ¶¶ 9-10. He returned to work on the following work day. On October 19, 1998, Dropinski visited orthopedic surgeon Dr. Michael Morrison who recommended that Dropinski avoid frequent twisting, squatting, and bending, and limit lifting objects weighing more than forty pounds. Filling No. 1, Complaint ¶ 12. Dropinski informed Douglas County of these restrictions on October 21, 1998.
On October 5, 1998, Dropinski requested a leave for the birth of his child under the Family Medical Leave Act. Before returning to work, on December 12, 1998, Dropinski requested a twelve-week leave for his health problems. Filing No. 38, Ex. 23. Dropinski's last day of work for Douglas County was October 5, 1998. Douglas County held the AEO II position open for him until January 2000.
During the leave, Dropinski requested County Engineer Tom Doyle (Doyle) to allow him to return to work and to accommodate his restrictions. On October 29, 1999, County Engineer Tom Doyle wrote a letter to Dropinski discussing a meeting held between the parties regarding possible accommodations. In the letter Doyle notes that because Dropinski's impairments prevented him from performing the essential functions of the job, Douglas County would not be able to accommodate him on the job site at that time. The letter also informed Dropinski that Douglas County would accommodate him by holding the AEO II position open for one year in the hope Dropinski would recover. Filing No. 38, Ex. 26. Dropinski's medical condition did not substantially improve.
Currently, Dropinski is employed as a truck driver with the Omaha Food Bank. Dropinski claims that he is able to perform the job because there are at least two people who travel with him to unload the truck.
STANDARD OF REVIEW
Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Harder v. Acands, 179 F.3d 609, 612 (8th Cir. 1999). "In making this determination, the function of the court is not to weigh evidence and make credibility determinations, or to attempt to determine the truth of the matter, but is, rather, solely, to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986); see Hedges v. Poletis, 177 F.3d 1071, 1074 (8th Cir. 1999). The court must "look to the substantive law to determine whether an element is essential to a case, and `[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.'" Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997) (quoting Anderson, 477 U.S. at 248). In determining "whether summary judgment is proper, [the court] is obligated to view the evidence in the light most favorable to the nonmoving party and give that party the benefit of all inferences which may be drawn." Wallace v. Dorsey Trailers Southeast, Inc., 849 F.2d 341, 342 (8th Cir. 1988).
A filing of cross-motions for summary judgment does not "necessarily indicate that there is not dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits." Wermager v. Cormorant Township Bd., 716 F.2d 1211, 1213 (8th Cir. 1983). Consequently, "where conflicting inferences as to a material fact may reasonably be drawn from the materials before the court, the case is not appropriate for summary judgment." Id.
DISCUSSION
Americans with Disabilities Act ("ADA")
The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112 (a). In order to establish a prima facie case of discrimination on an ADA claim, Dropinski must establish that: (I) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) he 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 Med'l Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997).
15. Disabled Person Under the ADA
Dropinski argues that as a matter of law, he is a disabled person under the ADA. Specifically, Dropinski contends that his lifting restriction, combined with his inability to perform an entire class of jobs and the severity and permanency of his pain, renders him disabled under the ADA. Douglas County argues that while Dropinski may not be able to perform the essential functions of the AEO II job, his lifting and driving restrictions do not substantially limit his ability to perform in a broad range of jobs and are insufficient to render him disabled under the ADA.
According to the ADA, a disability is "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). "To `substantially limit' 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 as to 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 Equal Employment Opportunity Conmission regulations 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).
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." Snow v. Ridgeview Med'l Ctr., 128 F.3d 1201, 1206-07 (8th Cir. 1997).
"'The inability to perform a single, particular job does not constitute a substantial limitation.'" Gutridge v. Clure, 153 F.3d 898, 900 (8th Cir. 1998 (citing 29 C.F.R. Pt. 1630, App. § 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).
Here, there is sufficient evidence in the record to create a genuine issue of material fact as to whether Dropinski is disabled under the ADA. The record establishes, through the testimony of Dr. Franco, that Dropinski suffers from chronic intermittent disc-related lumbar pain symptoms and chronic pain syndrome that will persist throughout the remainder of his life. Both the severity and the duration of an impairment are factors to consider in order to determine if an impairment substantially limits a major life activity. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 13 19 (8th Cir. 1996). Also, Dr. Franco stated that Dropinski's impairment may substantially limit the major life activities of lifting, prolonged sitting such as driving requires, and dressing such as putting on shoes and socks.
Dr. Franco is board certified in the American Academy of Physical Medicine and Rehabilitation. Dr. Franco is on staff with Alegent Immanuel Hospital, Alegent Bergan Hospital, Alegent Midlands Hospital, Children's Hospital, St. Joseph's Hospital, and Nebraska Health Systems.
During his deposition, Dr. Franco stated that he was contacted as a part of Dropinski's workers' compensation claim in January 2001. At that time, Dropinski's attorney requested an independent medical examination of Dropinski.
A vocational rehabilitation counselor, Alfred Marchisio, concluded that Dropinski no longer has access to a broad range of jobs because of his inability to hold industrial, manufacturing, construction, and warehouse jobs that require lifting in excess of fifty pounds. Further, Marchisio concluded that Dropinski would not be a candidate for long-distance truck driving because of his inability to sit for a prolonged length of time. See id. (the impairment must preclude the individual from performing a broad range of jobs in order to be substantially limiting in the major life activity of working); see also Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949 (8th Cir. 1999) (the plaintiff's permanent disability and medical restrictions "create a triable issue as to whether [the] impairments have significantly restricted the condition, manner, or duration in which she can work as compared to the average person").
Accordingly, this court concludes that there is sufficient evidence in the record to create a genuine issue of material fact as to whether Dropinski was disabled under the ADA.
16. Qualified Individual Under the ADA
Dropinski argues that as a matter of law he could perform the essential functions of the AEO II job. In the alternative, Dropinski argues that there is a genuine issue of material fact as to whether Douglas County offered him reasonable accommodations to perform the job. In response, Douglas County contends that Dropinski was unable to perform the essential functions of the job and that his requested accommodations were unreasonable. Both Dropinski and Douglas County agree that Dropinski's employment was terminated because of his inability to perform certain functions of the job due to his impairment.
Under the ADA, a "qualified individual" is an individual 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 Eighth Circuit articulated the following factors to consider when determining the essential functions of a position:
The EEOC guidelines define essential functions as:
(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term "essential functions" does not include the marginal functions of the position. . . .
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function. . . .29 C.F.R. § 1630.2 (n).
(1) the employer's judgment as to which functions are essential; (2) written en job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs.Heaser v. The Toro Co., 247 F.3d 826, 829-30 (8th Cir. 2001); see also Maziarka v. Mills Fleet Farm, Inc, 245 F.3d 675, 680 (8th Cir. 2001). Ultimately, the plaintiff's work performance must "meet the employer's legitimate job expectations." Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir. 1999).
The determination whether the plaintiff was a "qualified individual" must be made as of the date(s) of the challenged employment decision(s). See Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1048-1049 (8th Cir.), cert. denied,120 S.Ct. 588 (1999). Further, the employee cannot rely on "past performance to establish that [h]e is a qualified individual without accommodation when the employer has produced undisputed evidence of diminished or deteriorated abilities." Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir. 1999).
Next, the ADA requires an employer to make "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]." 42 U.S.C. § 1212 (b)(5)(A). Reasonable accommodations may include "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations. . . ." 42 U.S.C. § 1211 (9)(B). However, an employer cannot be required to "change the essential nature of the job." Mole, 165 F.3d at 1218. For example, "[a]n employer is not required to hire additional employees or redistribute essential functions to other employees." Id.; see also Fjellestad, 188 F.3d at 949.
Initially, a plaintiff must prove that he informed the employer that an accommodation was needed. See id. ("it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed"). Then, the plaintiff "is only required to make a facial showing that a reasonable accommodation [was] possible." Fjellestad, 188 F.3d at 949. If the plaintiff succeeds, "the burden of production shifts to the [defendant] to show that he is unable to accommodate the [plaintiff]." Id.
After the employee informs the employer that an accommodation is needed, the "failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith." Fjellestad, 188 F.3d at 949.
Here, Dropinski claims he was only restricted from lifting objects of fifty pounds or more. However, the record reflects that Dropinski was unable to sit for long stints, bend down to grab objects, or work an extended day. After consideration of all of Dropinski's limitations, this court concludes that no reasonable jury could find that Dropinski was able to perform the essential functions of the job with or without accommodation.
Initially, Dropinski argues that lifting is not an essential function of the AEO II job. This court disagrees. In the AEO II written job description, under the section titled "Basic Skills and Abilities Required," an incumbent is required to lift 100 pounds. Also, under the "Duties and Responsibilities" section, four out of nine duties listed require lifting heavy materials. Filing No. 38, Ex. 1. This written description is significant evidence that lifting was an essential function of the job. See Lloyd v. Hardin County, 207 F.3d 1080, 1083 (8th Cir. 2000) (plaintiff could not perform the essential functions of his job because plaintiff was unable to perform several of the duties listed in the written job description). Moreover, Mike Vazzano, Dropinki's supervisor, considers lifting over fifty pounds essential because the individual in the AEO II position uses a jack hammer, moves and lifts concrete pieces, moves tree limbs, and uses a pick to pry open sewer covers. Filing No. 38, Ex. 36. The statute stresses the importance of "the employer's judgment as to what functions of the job are essential." 42 U.S.C. § 1212 (8). The court concludes that in light of the job description and the supervisor's opinion, an essential function of the AEO II position included the ability to lift over fifty pounds.
Alternatively, Dropinski argues that he could have performed the essential function of lifting with reasonable accommodations. Douglas County acknowledges that on several occasions between October 1998 to December 1999, Dropinski asked Doyle to accommodate him by eliminating some of the physical burdens and cutting back on the hours required per work day. See Mole, 165 F.3d at 1217 (employee has the initial burden of requesting accommodation). Douglas County maintains, however, that Dropinski requested more than a lifting accommodation. Moreover, Douglas County argues that the accommodations requested would require a restructuring of the position, not simply an accommodation. This court agrees.
The record reflects that Dropinski's impairment prevented him from performing several essential functions in addition to lifting over fifty pounds. First, Dropinski's impairment prevented him from driving several vehicles described in the AEO II job description. For example, during his one-year leave, Dropinski requested that he not be assigned to the striper because of his inability to twist his body. Moreover, Dr. Morrison restricted Dropinski from sitting for a prolonged length of time, making it impossible for him to drive for long periods of time. Also, Dropinski noted that since January 2000 he was unable to work at other jobs which required riding on a forklift or driving a vehicle that vibrated. Filing No. 38, Ex. 32 at 35-39. For these reasons, Dropinski was unable to perform the essential function of operating certain automotive equipment. See Lloyd, 207 F.3d at 1084 (employee's request to be assigned to a modified vehicle amounted to a reallocation of an essential function of the job). It is apparent from the job title and the written job description that driving different vehicles is an essential function of the job. Dropinski suggests that Douglas County could have had someone else drive the striper that caused his back the most distress. However, the record reflects that driving any of the vehicles listed in the job description could prompt similar distress.
Doyle noted that under the restrictions, Dropinski would not be able to operate a tandem truck, a single axle truck, or a skid steer. Filing No. 38, Ex. 33 at 45.
Dropinski requested that Douglas County limit his work week to forty hours. Dropinski's inability to work overtime rendered him unable to perform the essential function of working in emergency situations. A main requirement of the AEO II job is to operate the snow plows during winter months, and work during other emergency situations. The AEO II job thus often required overtime. Moreover, Dropinski concedes that even with all the requested accommodations, his back may fail him and he would be unable to continue his job. Filing No. 38, Ex. 32 at 35-39; see Maziarka, 245 F.3d at 680 ("dependable attendance is often an essential part of a job"). Because each of Dropinski's impairments prevents him from performing essential functions of the job, the necessary accommodations would amount to a restructuring of the AEO II job. See Lloyd, 207 F.3d at 1084 (an employer is not required to reallocate essential functions of the job). A restructuring of the job would place an undue burden on Douglas County. Thus, Dropinski's requested accommodations were unreasonable as a matter of law.
This court concludes that no reasonable jury could find that Dropinski was a qualified individual under the ADA because of his inability to perform the essential functions of the job with or without accommodation. Accordingly, Douglas County's motion for summary judgment is granted.
THEREFORE IT IS ORDERED:
1. Plaintiff's Motion for Partial Summary Judgment, Filing No. 35, is denied;
2. Defendant's Motion for Summary Judgment, Filing No. 37, is granted;
3. Plaintiff's Motion in Limine, Filing No. 46, is denied as moot;
4. Defendant's Motion in Limine, Filing No. 46, is denied as moot; and
5. Final judgment is hereby entered in favor of the defendant, Douglas County, and against the plaintiff, Timothy Dropinski.