Opinion
Case No. 98-4041-RDR
October 20, 2000
MEMORANDUM AND ORDER
This is an employment discrimination action. Plaintiff contends that the defendant discriminated against her because she was disabled when it terminated her from employment as a nurse consultant on May 22, 1997 in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. She also contends that the defendant breached an implied contract with her when it terminated her. The defendant seeks summary judgment, arguing that the law and the uncontroverted facts do not support her claims.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id.
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).
The court shall initially set forth the facts that are regarded by the parties as uncontroverted. The court shall discuss other facts and allegations as we examine the plaintiff's claims and the defendant's contentions concerning those claims.
Plaintiff started work for the defendant in Health Care Analysis as a nurse consultant on January 20, 1997. Plaintiff was employed by defendant for four months; her last day of employment was May 22, 1997.
On May 5, 1997, plaintiff went to her supervisor, Ms. Mary Kennedy, and stated that she had had a "bad weekend." She further told Ms. Kennedy that her thought processes were not functioning. For the next few weeks, plaintiff came to work but was not functional. Plaintiff had multiple medical tests during this period that necessitated time away from work. Plaintiff's condition had begun at some point during the third week of April 1997.
On May 19, 1997, Ms. Kennedy gave plaintiff an assignment. She also gave the same task to a high school temporary employee. The temporary employee had the job done within the day. Ms. Kennedy wanted the task completed by May 22, 1997, but plaintiff did not complete it.
On May 22, 1997, plaintiff and Ms. Kennedy had a meeting. Plaintiff informed Ms. Kennedy that a few more tests were scheduled, but that the results of the completed tests were normal. Plaintiff also indicated that she was feeling better. During this meeting, Ms. Kennedy terminated plaintiff.
Prior to termination, plaintiff did not request an accommodation. At the time of her termination, plaintiff's work performance was poor. She was unable to perform the work assigned to her.
The nature of plaintiff's condition has never been identified. She has identified various symptoms that were present, including "dizziness, short-term memory loss, sleepiness, impairment of her gross motor skills, headaches, and over-all fatigue." Plaintiff also states that she suffered impairment of her fine motor skills. The symptomatology was temporary. By her admission, "her symptoms . . . gradually declined during the last week of May" and, by June 9, 1997, she told her doctor "that she now felt back to normal." Plaintiff has suffered no relapse of this alleged condition. Plaintiff never received a diagnosis for her alleged condition nor was the alleged condition ever diagnosed by a health care provider as any particular type of disability. The alleged condition has at all times remained "unspecified."
ADA CLAIM
The ADA prohibits employers from discriminating against individuals on the basis of disability. See 42 U.S.C. § 12112(a). To prevail on an ADA discrimination claim, a plaintiff must establish that: (1) he or she is a disabled person as defined by the ADA; (2) he or she is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) the employer discriminated against him or her because of the disability. See Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1109 (10th Cir. 1999). The ADA defines disability as: (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). Here, plaintiff alleges that she comes within the subsections (A) and (C).
"[C]onsideration of subsection (A) of the definition proceeds in three steps." Bragdon v. Abbott, 524 U.S. 624, 631 (1998). First, the court must determine whether the plaintiff has an impairment. Id. Second, the court must identify the life activity upon which the plaintiff relies and determine whether it constitutes a major life activity under the ADA. Id. Third, the court asks whether the impairment substantially limited a major life activity. Id.
"Major life activities" are defined in the regulations 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). In order to be substantially limiting, the individual must be: (1) unable to perform a major life activity that the average person in the general population can perform; or (2) significantly 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)(1). In determining whether an individual was significantly restricted in performing a life activity, the following factors must be considered: (1) "[t]he nature and severity of the impairment;" (2) "[t]he expected duration of the impairment;" and (3) "[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).
To establish a prima facie case under the McDonnell Douglas burden-shifting scheme as applicable to the ADA, plaintiff must show that (1) she is a disabled person within the meaning of the Act; (2) she is qualified, meaning that either with or without reasonable accommodation, she can perform the essential functions of her job; and (3) the defendant terminated her under circumstances giving rise to the inference that she was terminated because of her disability. See Hardy v. S.F. Phosphates Ltd., 185 F.3d 1076, 1079 n. 2 (10th Cir. 1999). If an ADA plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its action. Id. at 1079. If it does, the burden returns to the plaintiff to present evidence that the proffered reason is not worthy of belief. Id. at 1079-80.
The defendant initially contends that it is entitled to summary judgment on plaintiff's ADA claim because plaintiff cannot establish a prima facie case of discrimination for several reasons. First, the defendant contends that plaintiff does not have a disability as defined by the ADA. Second, the defendant asserts that it did not regard plaintiff as having a disability. Third, plaintiff was not meeting defendant's legitimate performance expectations. The defendant next asserts that it had a legitimate, nondiscriminatory reason for terminating plaintiff and plaintiff cannot show that the reason was pretextual.
The defendant initially argues that plaintiff did not suffer from a "disability" as defined by the ADA. The defendant emphasizes the temporary nature of plaintiff's condition and suggests that it does not qualify as a disability.
Recently, in Cousins v. Howell Corp., 52 F. Supp.2d 362 (D.Conn. 1999), Judge Goettel of the District of Connecticut summarized the law concerning temporary impairments:
As defendant correctly points out, numerous cases have held that surgery-related absences from work and short-term working restrictions thereafter do not constitute a "disability" under the ADA. See, e.g., Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997) (employee's inability to work while recovering from surgery was not evidence of a permanent impairment under the ADA); McDonald v. Pennsylvania Dept. of Public Welfare, 62 F.3d 92, 95-97 (3d Cir. 1995) (holding that the inability to work for several months following surgery was not a disability under the ADA); Evans v. Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (postoperative limitations are not an impairment under the Rehabilitation Act). Furthermore, injuries of temporary duration have repeatedly been held not to meet the definition of a "disability" under the ADA. See, e.g., Presutti v. Felton Brush, Inc., 927 F. Supp. 545, 548-49 (D.N.H. 1995) (back injury, which kept plaintiff out of work for seven weeks, did not constitute a disability); Blanton v. Winston Printing Co., 868 F. Supp. 804 (M.D.N.C. 1994) (knee injury of relatively short duration was not a "disability" within meaning of the ADA, even assuming it impaired a major life activity).
Although short-term, temporary restrictions generally are not substantially limiting, an impairment does not have to be permanent to rise to the level of a disability. Katz v. City Metal Co., 87 F.3d 26, 31 (1st Cir. 1996). The duration of the impairment is simply one of the factors, together with the nature, severity, and long-term impact of the impairment, that must be considered in determining whether the impairment substantially limits a major life activity such that it would constitute a "disability" under the ADA. Santiago Clemente v. Executive Airlines, 7 F. Supp.2d 114, 118 (D.P.R. 1998). Some conditions may be long-term or potentially long-term in that their duration is indefinite or unknowable. Such conditions if severe may constitute disabilities. Katz, 87 F.3d at 31 (citing 2 EEOC compliance Manual, Interpretations (CCH) § 90.24, ¶ 6884, p. 5319 (1995)).
Id. at 364 (footnote omitted). See also Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998).
Having carefully examined the evidence in this case, we are in agreement with the defendant that the impairment suffered by plaintiff in late April that lasted until the first week of June does not constitute a disability under the ADA. Plaintiff's counsel candidly admitted he had not discovered a case where an impairment lasting only two months was determined to be a disability under the ADA. We have also not located such a case, but we have found many that concluded that impairments of such a short duration did not constitute a disability. See Sorensen v. University of Utah Hospital, 194 F.3d 1084, 1087 (10th Cir. 1999) (impairment lasting less than three weeks too short duration to be disability under ADA); Colwell v. Suffolk County Police Dept., 158 F.3d 635, 646 (2nd Cir. 1998) (same, seven months), cert. denied, 526 U.S. 1018 (1999); Halperin v. Abacus Tech. Corp., 128 F.3d 191, 200 (4th Cir. 1997) (same, two months); Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) (same, less than four months); McDonald v. Commonwealth of Pa., Dept. Of Public Welfare, 62 F.3d 92, 97 (3rd Cir. 1995) (same, less than two months).
Plaintiff, in an effort to avoid the precedent against her on the duration issue, seeks to focus on the severity of the impairment. She notes that some evidence in the record indicates that she was "non-functional" during the two-month period.
Plaintiff is correct that "duration or expected duration of the impairment" is one of three factors relevant to the determination of whether an impairment "substantially limits" an individual's participation in a major life activity. 29 C.F.R. § 1630.2(j)(2)(ii). The other factors include the "nature and severity of the impairment" and the permanency or long-term impact or the expected permanency or long-term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2)(i) and (iii). The court is not persuaded that, even with consideration of these factors, plaintiff's impairments fall within the protections of the ADA as a disability. Plaintiff did have some problems for a short period. These problems were severe in that plaintiff did not function well. She had dizziness, short-term memory loss, sleepiness, impairment of her gross motor skills, headaches, and overall fatigue. Nevertheless, there was no expectation that these symptoms were permanent or would have a long-term impact. Plaintiff's doctors had reached no conclusions concerning the nature of plaintiff's problems or their expected duration. On May 22, 1997, prior to plaintiff's termination, she informed her supervisor that the results of her completed medical tests were normal and that she was feeling better. These facts, even when viewed in the light most favorable to plaintiff, do not suggest that plaintiff had a disability as defined by the ADA. Accordingly, we must grant summary judgment to the defendant on plaintiff's ADA disability claim.
The court finds it necessary to briefly comment on one other aspect of plaintiff's ADA claim. Plaintiff has acknowledged that she would only have been able to perform her job with an accommodation, a leave of absence. She further acknowledges that she never asked for an accommodation prior to her termination. She suggests, however, that given the circumstances that existed the defendant had an obligation to raise the issue of an accommodation.
There is little question that leave, under appropriate circumstances, is recognized as a reasonable accommodation. See Cisneros v. Wilson, ___ F.3d ___, 2000 WL 1336658 at * 17 (10th Cir. 9/11/00). The issue of who has the burden to raise the issue of an accommodation remains unclear. Compare Gaston v. Bellingrath Gardens Home, Inc., 167 F.3d 1361 (11th Cir. 1999) (employer's duty to provide reasonable accommodation not triggered unless disabled employee requests accommodation) and Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.) (employee must request accommodation), cert. denied, 117 S.Ct. 586 (1996) with Bultemeyer v. Ft. Wayne Community Schools, 100 F.3d 1281, 1283 (7th Cir. 1995) (employers share some responsibility in initiating discussions about accommodating disabilities). Nevertheless, in situations where leave is the applicable accommodation, the employee must provide the employer with evidence of the expected duration of the impairment. Cisneros, 2000 WL 1336638 at * 18; Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1168 (10th Cir. 1996). Without such evidence, the employee has failed to create a triable issue of fact regarding the reasonableness of a leave of absence. Hudson, 87 F.3d at 1169. There is no dispute here that plaintiff was unable to provide such evidence to the defendant at the time of termination. She had no idea at that time as to the duration of her illness because no doctor had even identified the nature of her condition. Accordingly, plaintiff cannot establish that she was a "qualified individual with a disability" because she cannot show that any requested leave was a "reasonable" accommodation. For this reason also, the defendant is entitled to summary judgment.
"REGARDED AS"
The defendant argues initially that the court should not consider this claim because it was not alleged in plaintiff's complaint. The defendant asserts that plaintiff makes no allegation in her detailed complaint that it regarded her as disabled. Plaintiff responds that it was not necessary to specifically plead this claim. Plaintiff suggests that being "regarded as" disabled is not a separate cause of action, but merely an alternative method of proving "disability" under the ADA. Plaintiff further points out that such a claim was made in her EEOC charge and, thus, defendant cannot contend it is surprised or prejudiced by this claim.
The whole issue of pleading in an ADA case has caused the courts some trouble. See Sacay v. Research Foundation of City University of N.Y., 44 F. Supp.2d 496, 500-01 (E.D.N.Y. 1999) ("Courts have differed over the pleading requirements for an ADA claim."). There is some support for the position taken by the defendant. See id. at 500 (court need not consider "regarded as" claim because plaintiff does not allege that she was unjustly regarded as having a medical impairment when she was in fact not disabled); Francis v. City of Meriden, 129 F.3d 281, 285 (2nd Cir. 1997) (In order "to state a claim under the 'regarded as' disabled prong of the ADA . . ., a plaintiff must allege that his employer regarded him as having an 'impairment' within the meaning of the statute."). However, there is also support for the position taken by the plaintiff. See Kolovos v. Sheahan, 1999 WL 1101919 (N.D.Ill. 1999) ("We reject defendant's argument that we should preclude Kolovos from advancing this theory because he failed to allege in his complaint that he was 'regarded as disabled.' The Federal Rules do not require a plaintiff to plead his legal theory, Kolovos did allege that 'he was discriminated against by defendant because of his disability.'. . . The legal definition of disability includes the 'regarded as' theory that Kolovos argues here.").
The defendant is correct that plaintiff did not specifically state a "regarded as" claim in her complaint. Plaintiff's complaint alleges only that she was terminated "because of her disability." At the pretrial conference on March 4, 1999, defendant addressed this issue. The magistrate allowed plaintiff until March 15, 1999 to amend her complaint to include this cause of action. On March 15, 1999, plaintiff's counsel informed the magistrate that she did not intend to file a motion to amend her complaint. A final pretrial order was subsequently drafted and approved by this court. In that order, plaintiff specifically alleges the "regarded as" claim. There is no indication of any objection by the defendant to the assertion of that claim in the pretrial order.
A pretrial order supersedes the complaint and controls the subsequent course of litigation. See Franklin v. United States, 992 F.2d 1492, 1497 (10th Cir. 1993); see also Fed.R.Civ.P. 16(e). Accordingly, regardless of the view adopted by the court on the pleading requirements of the ADA, this claim is now a part of this litigation and shall be considered by the court.
The defendant next contends that it is entitled to summary judgment on plaintiff's "regarded as" claim because there is no evidence to indicate that it regarded plaintiff as disabled or perceived such a disability to substantially limit a major life activity of plaintiff. The defendant believes that the fact that it assigned responsibilities to her up to the time of her termination proves that it did not perceive plaintiff as substantially limited in any major life activity.
Plaintiff responds that (1) management level employees, including plaintiff's supervisor, were aware of plaintiff's condition; (2) Joy Hill, defendant's Equal Employment Opportunity coordinator, made a handwritten note that plaintiff "may be ADA"; and (3) plaintiff's supervisor regarded plaintiff as having lost her thought processes and as being totally non-functional. Plaintiff further points out, in response to defendant's suggestion that it continued to assign responsibilities to plaintiff up until the time of her termination, that plaintiff's supervisor told staff not to refer pharmacy questions or problems to plaintiff.
In order to satisfy the statutory definition of "regarded as,"
plaintiff must fall under one of the following three categories: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) has none of the impairments defined in paragraphs (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment. 29 C.F.R. § 1630.1(l).
Whether an individual is regarded as having a disability turns on the employer's perception of the employee and is therefore a question of intent, not whether the employee has a disability. It is not enough, however, that the employer regarded that individual as somehow disabled; rather, the plaintiff must show that the employer regarded the individual as disabled within the meaning of the ADA. Thus, in order to prevail, a plaintiff must adduce evidence that the employer regarded him or her as having an impairment that substantially limited a major life activity.
"An employer's knowledge that an employee exhibits symptoms which may be associated with an impairment does not necessarily show that the employer regarded the employee as disabled." Webb v. Mercy Hospital, 102 F.3d 958, 960 (8th Cir. 1996) (citing Hamm v. Runyon, 51 F.3d 721, 725 (7th Cir. 1995)). The mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate that the employer regarded the employee as disabled. An employee who is perceived by his employer as having only a temporary incapacity to perform the essential functions of his job is not perceived as disabled as defined in the ADA. Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir. 1999).
Having examined the entirety of the evidence and having viewed it in the light most favorable to the plaintiff, we are not persuaded that sufficient evidence exists on this claim. The evidence is insufficient to demonstrate that the defendant perceived plaintiff as suffering from a substantially limiting impairment. As pointed out previously, the fact that employees of the defendant were aware of the plaintiff's condition is not sufficient to show that the defendant regarded plaintiff as disabled. We are persuaded that the evidence noted by the plaintiff is inadequate to avoid summary judgment. The evidence before the court shows that the plaintiff's supervisor was concerned about plaintiff's inability to perform her assigned work. Such a concern is entirely appropriate under ADA. "Where a defendant's recognition of plaintiff's limitations was not an erroneous perception, but instead was a recognition of a fact, a finding that plaintiff was regarded as disabled and, therefore, is entitled to the protections of the ADA, is inappropriate." Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1230 (11th Cir. 1999) (internal quotations and citations omitted). The evidence is not disputed that plaintiff was assigned work up to the time of termination. The evidence is further undisputed that plaintiff was unable to perform this work. These circumstances simply do not support plaintiff's claim that the defendant regarded her as disabled. See Baffoe v. W. H. Stewart Co., 211 F.3d 1277, 2000 WL 484878 at ** 4-5 (10th Cir. 2000) (continued assignment of work after learning of past impairments is "compelling evidence" that defendant did not regard physical impairments as substantially limiting plaintiff's ability to work). Accordingly, the court shall grant summary judgment to the defendant on this aspect of plaintiff's ADA claim as well.
BREACH OF IMPLIED CONTRACT
Plaintiff contends that she had an implied contract with the defendant that provided that, in the event of illness, she would be provided with sick leave. She relies primarily upon a statement made by her supervisor during plaintiff's interview for employment as support for this claim. During this interview, plaintiff testified that Ms. Kennedy said that plaintiff "would have thirty days of sick leave available to her once she started her employment." The defendant contends that it is also entitled to summary judgment on this claim. The defendant contends that it did not bargain with the plaintiff for the aforementioned matters. The defendant asserts that even if Ms. Kennedy told plaintiff that she would have thirty days of sick leave, she was merely stating the defendant's policy. The defendant argues that such a statement does not constitute negotiation or demonstrate a "bargained for" agreement.
It is undisputed that no separate jurisdictional basis for plaintiff's state law claim exists in this case. Because the court finds the defendant entitled to summary judgment with respect to plaintiff's claims arising under federal law, the court declines to exercise its discretion to address the merits of defendant's arguments regarding the propriety of summary judgment of plaintiff's remaining state law claim. See 28 U.S.C. § 1367(c)(3); Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) ("When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims."). Accordingly, plaintiff's breach of implied contract claim is hereby dismissed without prejudice.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Doc. # 66) be hereby granted in part. The court shall grant summary judgment to defendant on plaintiff's claims asserted under the ADA. Plaintiff's remaining breach of implied contract state law claim is hereby dismissed without prejudice.
IT IS SO ORDERED.