Opinion
Case No. 2:01-CV-0581TC
September 8, 2003
ORDER
In July of 1996, Plaintiff Laurie Ann Jones suffered a work-related injury to her right wrist while employed by Cressona (the predecessor to Alumax, which was in turn the predecessor to Defendant Aluminum Corporation of America or "Alcoa"). A few weeks after her injury, in September of 1996, she resigned from her employment with Cressona. Following considerable medical treatment and several surgeries, Ms. Jones reapplied for work with what was at that time Alumax. Ms. Jones was not rehired.
On December 12, 1997, Ms. Jones filed a charge of discrimination with the Utah Anti-Discrimination and Labor Division and the EEOC, alleging that Alumax had discriminated against her because of her disabilities.
On July 30, 2001, after receiving a right to sue letter, Ms. Jones on July 30, 2001, brought this lawsuit, alleging various claims of disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") and the Utah Antidiscrimination Act, Utah Code Ann. § 34A-5-101. On May 13, 2002, Alcoa filed a motion for partial summary judgment, arguing that Ms. Jones' claims of failure to accommodate, disparate treatment, and hostile work environment were untimely. Ms. Jones failed to respond to this motion, and on December 3, 2002, the court ruled in favor of Alcoa's motion for partial summary judgment. As a result, the only claim that now remains is her allegation that Alcoa discriminated against her in violation of the ADA when it did not rehire her on June 27, 1997.
In this Motion for Summary Judgment, Alcoa challenges the remaining claim, arguing (1) that Ms. Jones has not shown that she was disabled within the meaning of the ADA when she applied to Alcoa for rehire; and alternatively, (2) that Ms. Jones's prospective damages are capped or limited from the period of June 27, 1997, through August 1997 (at which point she became disabled due to an intervening and unrelated heart condition rendering her unable to work). Looking at the second argument, Ms. Jones agreed at the May 27, 2003 hearing that any prospective damages she would recover would be capped, though the parties apparently disagree on the issue of what precise date defines the cap.
Alcoa has also brought a motion to strike, in which it argues that Ms. Jones's appendix — including a variety of medical records, worker's compensation forms, correspondence, and other documents — consists largely of documents that are unauthenticated. In particular, Alcoa objects to documents attached to Ms. Jones's opposing memorandum at Exhibits C, D, E, F, I, J, K, L, M, N, and R. (See Def.'s Reply Mem. at 3.) But Ms. Jones has authenticated these exhibits by way of her Affidavit in Support of Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, filed May 23, 2003. These exhibits are considered in deciding Alcoa's Motion for Summary Judgment.
The court finds, for reasons discussed below, that Ms. Jones has raised a genuine issue of material fact on the question of whether Alumax regarded her as disabled and the dates when she would be entitled to damages, should Defendant be found liable.
BACKGROUND
The facts included in this background section are either undisputed or, where disputed, are read in the light most favorable to Ms. Jones.See McCarty v. City of Bartlesville, 8 Fed. Appx. 867, 870 (10th Cir. 2001). Material disputed facts are discussed in the relevant portions of the analysis that follows. Additionally, although the parties' memoranda treat Ms. Jones's medical history related to her wrist with great detail, the facts recounted here focus only on what is necessary to decide the issue of whether she was disabled on June 27, 1997.
Ms. Jones was hired by Cressona as an aluminum packer on April 15, 1996. On July 29, 1996, Ms. Jones injured her right wrist while packing aluminum channel as part of her regular duties. This injury subsequently developed into overuse exterior tendinitis with compartment syndrome. Ms. Jones resigned from her employment with Cressona effective September 14, 1996.
It is undisputed that Alcoa's employment records state Ms. Jones "quit to go back to school," but Ms. Jones emphasizes that this was not her stated reason for her resignation. (Deposition of Laurie Jones ("Jones Dep.") at 29: 19-30:4; 37:8-40:4.) Ms. Jones was accepted at the University of Utah in September 1996, but she notified the university in that same month that she would not attend. (Id. at 57:6-58:8.)
After she left Cressona, Ms. Jones continued to receive medical treatment for her wrist. Her treatment included doctors' appointments, physical therapy, and surgery. Beginning in December of 1996, she had three surgeries performed on her right wrist: (1) one in December of 1996, to repair DeQuervain's tenosynovitis, (2) one in April of 1997, to remove a dorsal carpal ganglion cyst, and (3) one in August of 1997, to address her intersection/transition syndrome. In May of 1997, after Ms. Jones' second surgery, but before her third, Ms. Jones's mother (who worked at Alumax) received a letter asking current employees if they had any family member, or knew any former employees, who would be interested in applying for summer employment at Alumax. Based on this letter, Ms. Jones applied for summer employment at Alumax, but her application was rejected in a letter dated June 27, 1997. After receiving the June 27, 1997 letter, Ms. Jones made no further attempts to work at Alumax or Alcoa.
On March 24, 1997, Dr. Scott Jackson gave Ms. Jones a physician's note indicating that she had reached maximum medical improvement (MMI), at least as regards her tenosynovitis surgery. After her ganglion cyst excision in April of 1997, her treating physician for that condition, Dr. Johnson, advised Ms. Jones that she was to work on a self-administered range of motion program for her wrist, and that she could return to work with the restriction that she lift no more than ten pounds with her right hand. Dr. Johnson then released Ms. Jones from his care on June 20, 1997, noting that she had returned to full motion and strength in the right hand, and that she could return to work with no restrictions. The extent of this June 20, 1997 release — executed seven days before Alumax drafted the letter denying Ms. Jones rehire — is the parties' primary factual dispute, and it is treated in greater detail in the following analysis.
Ms. Jones further points out that according to her physical therapy functional capacity assessment of June 18, 1997, she had not met the functional goals required to return to full duty and/or a fixed state of recovery. (See Jones Dep. at 48:4-52:15, 122:1-123:15, PL's Ex. L, pp 1-5, PL's Ex. L-3, Ex. M.)
In addition to her wrist impairment, Ms. Jones also suffers from a heart condition, specifically, a cardiac "arrhythmia to her natural pacemaker called inappropriate sinus tachycardia with tachy/brady syndrome." (PL's Mem. Opp. Mot. Summ. J. at 16; Jones Dep. at 7:24-8:9.) This condition makes it difficult for her to stay awake and causes her to faint from time to time. Her arrhythmia was diagnosed in August of 1997. Because of her heart condition, Ms. Jones has stopped looking for employment and is now pursuing a college degree full time.
ANALYSIS Legal Standard
Summary judgment is appropriate "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Adler v. Wal-Mart Stores. Inc., 144 F.3d 664, 670 (10th Cir. 1998).
The party moving for summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 323; Adler, 144 F.3d at 670-71. A movant "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler, 144 F.3d at 671. hi applying this standard, the court views the factual record and construes all facts and reasonable inferences from it in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adler, 144 F.3d at 670: Aramburu v. Boeing Co., 112F.3d 1398, 1402 (10th Cir. 1997).
Once the moving party has carried its initial burden, Rule 56(e) requires the nonmovant to "go beyond the pleadings and `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 (quoting FED. R. Civ. P. 56(e)). The specific and pertinent facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citation omitted). Mere allegations and references to the pleadings will not suffice. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
Alcoa's Argument that Ms. Jones was not Disabled at the Time She Applied for Rehire
The ADA provides that no covered employer "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) (2003).
Under the ADA's statutory scheme, a plaintiff establishes a prima facie case by proving: (1) that she is a disabled person as defined by the ADA; (2) that she is a "qualified individual," who can perform the essential functions of her position with or without reasonable accommodation; and (3) that the employer discriminated against her because of her disability. Frazier v. Simmons, 254 F.3d 1247, 1256 (10th Cir. 2001); Martin v. Kansas, 190 F.3d 1120, 1129 (10th Cir. 1999).overruled on other grounds by. Bd. of Trustees of Univ. of Ala, v. Garrett, 531 U.S. 356 (2001). Alcoa's arguments are limited to the first prong of the prima facie case, the question of whether Ms. Jones is disabled under the ADA.
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) (2003). Alcoa argues that at the time Alcoa rejected Ms. Jones's reapplication for employment on June 27, 1997, she was not disabled under any of these three definitions.
Ms. Jones must show that her disability existed at the time of Alumax's failure to rehire her on June 27, 1997. See Kocsis v. Multi-Care Management. Inc., 97 F.3d 876, 884 n. 13 (6th Cir. 1996) (noting that the plaintiff "must establish that her disability existed at the time of the discriminatory act").
Can Ms. Jones demonstrate that she had a physical impairment that substantially limited one or more major life activities?
The analysis of whether Ms. Jones has a physical impairment that substantially limits one or more major life activities is broken into three questions: (1) Did Ms. Jones's wrist conditions constitute a physical impairment? (2) What was the major life activity (or activities) that Ms. Jones is relying on as the basis for her ADA claim, and does it qualify as a major life activity under the ADA? and (3) Did Ms. Jones's physical impairment substantially limit the major life activity (or activities) she identifies? Bristol v. Bd. of County Comm'rs of County of Clear Creek, 281 F.3d 1148, 1156-57 (10th Cir. 2002) (vacated in pan on other grounds, 312 F.3d 1213 (10th Cir. 2002) (reh'g en banc). The first two parts of Bristol's three-part test are easily satisfied here. First, the parties seemingly agree that Ms. Jones's wrist injury was a physical impairment at the relevant time. Second, Ms. Jones has identified as the major life activities affected by her impairment "lifting, carrying and performing manual tasks such as grasping." (PL's Mem. Opp. Mot. Summ. J. at 23; Pi's Ex. P.) Both "lifting" and "performing manual tasks" are recognized "major life activities." 45 C.F.R. § 84.3 cmt. (including both "lifting" and "performing manual tasks" within the definition of "major life activities"); Toyota Motor Manufacturing, Kentucky. Inc. v. Williams, 534 U.S. 184, 197 (2002) (defining "major life activities" as "those activities that are of central importance to daily life," including "such basic abilities as walking, seeing, and hearing"); Lowe v. Angelo's Italian Foods. Inc., 87 F.3d 1170, 1172 (10th Cir. 1996) (holding that "lifting is a `major life activity,' and that an individual whose ability to lift is substantially impaired qualifies as a disabled person within the meaning of the ADA").
Alcoa's arguments go to the third prong of the Bristol test, that is, did Ms. Jones's impairment substantially limit her abilities to lift and/or to perform manual tasks. The Supreme Court has recently noted inToyota Motor Manufacturing. Kentucky, Inc. v. Williams that, under the applicable 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 `[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.'" 534 U.S. at 195-96 (2002) (quoting 29 C.F.R. § 1630.20(j) (2001)). In making this determination, courts consider the following factors: "[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment." Id. at (quoting 29 C.F.R. § 1630.2(j)(2)(i)-(iii)). Courts must also take into account "any mitigating or corrective measures utilized by the individual, such as medications." Pack v. Kmart Corp., 166 F.3d 1300, 1305-06 (10th Cir. 1999) (citing Sutton v. United Air Lines. Inc., 130 F.3d 893, 902 (10th Cir. 1997), aff'd, 527 U.S. 471(1999)).
Alcoa argues that Ms. Jones was not disabled because her impairment was only temporary in nature, she received full medical releases (without restrictions) shortly after the two minor surgeries preceding her June 1997 re-application date, and she admits to suffering only a 3% impairment to her wrist and thumb today. But, as Alcoa has itself pointed out, the relevant time period for purposes of this analysis is June 27, 1997, when Alumax did not rehire Ms. Jones. Consequently, the extent of Ms. Jones's impairment today has little or no significance.
In the "substantial limitation" analysis, the word "substantial" "precludes impairments that interfere in only a minor way with the performance of [major life activities] from qualifying as disabilities."Toyota Motor Manufacturing, 534 U.S. at 197 (citations omitted). Likewise, "temporary, non-chronic impairments of short duration, with little or no long-term or permanent impact, are usually not disabilities." Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998) (citing 29 C.F.R. pt. 1630 app., § 1630.2(j)). Nonetheless, "an impairment does not necessarily have to be permanent to rise to the level of a disability. Some conditions may be long-term, or potentially long-term, in that their duration is indefinite and unknowable or is expected to continue for at least several months. Such conditions, if severe, may constitute disabilities." Id. (citing EEOC, Interpretive Manual (1995), reprinted in 2 EEOC Compliance Manual § 902.4(d), at 902-30 (SNA 1997)).
On the issue of the medical releases, Ms. Jones has produced evidence that on June 27, 1997, although she had been fully released as regards to her DeQuervain's tenosynovitis and ganglion cyst conditions (Jones Dep. at 48:22-49:19; 51:22-52:15; Def.'s Ex. 2 4), her intersection/transition syndrome persisted and was active on June 27, 1997. (Id. at 52:14-15.) In particular, she has produced (1) Dr. Johnson's release of June 20, 1997, in which he noted, "[t]he patient continues to have discomfort in the dorsal forearm at the area of the intersection, but a claim was not filed with regard to this problem and I have not treated her for it." (Def.'s Ex. 4); (2) Dr. Johnson's notes from the same day, observing that Ms. Jones had "[completely resolved dorsal carpal ganglion with full range of motion and strength, but persistent symptoms related to intersection on the right" (Pl.'s Ex. N-4 at 4); and (3) a Utah Industrial Commission document entitled "Restorative Services Authorization/Denial Form," stamped "received" by Alexsis (Alumax/Alcoa's worker's compensation insurer) on June 18, 1997, in which the transition condition is described. (Pl.'s Ex. L-3.)
While three pieces of evidence raise a factual issue on the question of whether Ms. Jones's transition/intersection condition existed on June 27, 1997, as Toyota Motor Manufacturing instructs, "It is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those `claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial.'" 534 U.S. at 198 (quoting Albertson's. Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)). Accordingly, it is necessary to ask whether Ms. Jones's transition/intersection condition "prevented] or severely restricted] [her] from doing activities that are of central importance to most people's daily lives." Id. In Ms. Jones's case, the major life activities at issue are, as addressed above, "lifting" and "performing manual tasks."
Ms. Jones further argues that her de Quervain's tenosynovitis was a persistent problem regardless of Dr. Jackson's January 1997 release on that condition, citing as evidence Dr. Colledge's evaluation, in which he observed that Ms. Jones "did not do well" on the de Quervain's release, and diagnosed her with "Chronic de Quervain's tenosynovitis with compartment syndrome still irritated." (PL's Ex. N-4 at 1 3.) However, Dr. Colledge's evaluation indicating persistent de Quervain's problems was not available until December 3, 1997, over five months after Alumax did not rehire Ms. Jones. At the time of that employment decision, Alumax had no reason to question Dr. Jackson's January 1997 release.
(1) Lifting
Ms. Jones contends that she is substantially limited in the major life activity of lifting. The Tenth Circuit in Lowe v. Angelo's Italian Foods concluded that the plaintiff in that case was substantially limited in the major life activity of lifting where she suffered from multiple sclerosis, "a neurological disease for which there is no known cure," and as a result was "unable to lift items weighing more than fifteen pounds and . . . should lift items weighing less than fifteen pounds only occasionally." 87 F.3d 1170, 1174 (10th Cir. 1996).
Ms. Jones has produced a Functional Capacity Evaluation, conducted by a therapist, Doug Bagley, on referral from Drs. Colledge and Johnson, and dated December 12, 1997. (Pi's Ex. N-5) That evaluation indicates that she had a recommended right upper extremity lifting limitation of "10 pounds infrequently." (Id. at 3.) But Dr. Colledge himself observed on December 17, 1997 that Ms. Jones could lift twenty pounds floor to waist with both hands, but was limited to about twelve pounds with her right hand; further, that she could lift and carry fifteen pounds, but was limited to approximately ten pounds with the right. (PL's Ex. N-6 at 2; see also N-7(same)). Additionally, although it is outside the relevant time frame, a letter from Ms. Jones to Joan Carter of the UALD — dated March 20, 2000 and stamped "received" on March 27, 2000 — describes "permanent lifting restrictions of 15, 10, and 5 lbs. with [her] right hand, and no more than 20 lbs. with both hands." (PL's Ex. P-2.)
Although Mr. Bagley's assessment was obviously conducted a number of months after June 27, 1997, it describes the right radial wrist pain as a continuous problem.
A ten to fifteen pound lifting limitation, under the relevant case law, qualifies as a "substantial limitation" to the extent that Ms. Jones's intersection/transition syndrome is sufficiently severe and long-term, with permanent or long-term impact on her ability to lift. A twenty-pound lifting limitation does not. See McCoy v. USF Dugan. Inc., 42 Fed. Appx. 295, at 297-98 (10th Cir. 2002) (twenty pound lifting restriction not substantially limiting). Velarde v. Associated Reg'1 and Univ. Pathologists, No. 02-4073, 2003 WL 1736400, at *2 (10th Cir., Apr. 2, 2003) (twenty-five pound lifting restriction not substantially limiting); Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1241 (2001) (forty pound lifting restriction not substantially limiting); Lowe, 87 F.3d at 1174 (fifteen pound lifting restriction is substantially limiting). Neither Lowe nor the cases following it articulate a per se rule that a lifting restriction of a particular number of pounds satisfies the "substantially limiting" prong; rather, they establish "a threshold of severity of impairment below which the plaintiff bears the burden of proving substantiality." Velarde, 2003 WL 1736400, at **2.
Under the relevant Tenth Circuit standards, Ms. Jones's lifting capability with her right hand (ten to twelve pound limitation) is almost certainly substantially limited by her impairments. However, the lifting limitation of one hand in isolation is not the appropriate focal point of this analysis. The court must take into consideration the fact that the evidence makes clear that Ms Jones's left hand mitigates her limitation by improving her lifting ability. That is, when using both hands, Ms. Jones can lift twenty pounds. See Pack v. Kmart Corpp., 166 F.3d 1300, 1305-06 (10th Cir. 1999) (mitigating or corrective measures to be taken into account); McCov, 42 Fed. Appx. at 297-98 (citing Gillen v. Fallon Ambulence Serv., Inc., 283 F.3d 11, 21 (1st Cir. 2002) for the proposition that "the `inability to lift heavy objects does not constitute a substantial limitation on a person's overall ability to lift [as the] capacity to perform heavy lifting is not a trait shared by the majority of the population.'") Accordingly, Ms. Jones has failed to produce evidence raising a genuine issue of material fact on the question of whether on June 27, 1997, she was substantially limited in the major life activity of lifting.
Furthermore, Ms. Jones has produced no "comparative evidence as to the general population's lifting capabilities," as required by the Tenth Circuit. Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1241 (10th Cir. 2001).
(2) Performing Manual Tasks
Ms. Jones also claims that she is substantially limited in the major life activity of performing manual tasks, In Toyota Motor Manufacturing, the Supreme Court held that "to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long-term." 534 U.S. at 198 (citing 29 C.F.R. § 1630.2(j)(2)(ii) — (iii)(2001)). The Court further stated that "[w]hen addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job." Id. at 200-01. InToyota Motor Manufacturing, the Court found that "repetitive work with hands and arms extended at or above shoulder levels for extended periods of time" was specific to the plaintiffs "specialized assembly line job," and was not "an important part of most people's daily lives." Id. at 201.
As evidence of her functional limitations, Ms. Jones again points to the December 12, 1997 Functional Capacity Evaluation, in which Doug Bagley recommended that she "not return to production work" and "avoid repetitive right hand tasks." (PL's Ex. N-5 at 3.) These tasks, like those described in Toyota Motor Manufacturing, are not necessarily "an important part of most people's daily lives." Consequently, Ms. Jones has not produced evidence that on June 27, 1997, she was substantially limited in the major life activity of performing manual tasks. Can Ms. Jones demonstrate that on June 27, 1997, she had a record of having a physical impairment that substantially limited one or more major life activities?
hi her letter to Joan Carter of the UALD, Ms. Jones described functional limitations that are fundamental to most people's daily lives, including but not limited to a tendency to drop objects, difficulty dressing herself and working buttons, problems cleaning and brushing her hair, an inability to perform recreational and sporting activities, and an inability to do housework and to cook. (PL's Ex. P-2 at 1 — 2.) These are the very types of limitations that Toyota Motor Manufacturing instructs courts to focus on. 534 U.S. at 201-02 (listing as "manual tasks of central importance to people's daily lives" household chores, bathing, and brushing one's teeth). Nonetheless, this letter (dated March 20, 2000) cannot reasonably be said to describe her functional limitations on June 27, 1997 and is therefore not relevant.
Ms. Jones could prove that she was disabled on June 27, 1997, by establishing a record of an impairment that substantially limited one or more major life activities. 42 U.S.C. § 121022(2)(B). The Tenth Circuit has recently found that "[t]o have a qualifying record of impairment, `a plaintiff must have a history of, or have been misclassified as having, an impairment that has substantially limited a major life activity.'" Rakity v. Dillon Companies, Inci, 302F.3d 1152, 1159 (10th Cir. 2002) (citing Sorensen v. University of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir. 1999)). Factors to be applied in determining the substantiality of the limitation are "(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) the permanent or long-term impact of or resulting from the impairment." Sorenson, 194 F.3d at 1087.
On June 27, 1997, when Alumax rejected Ms. Jones's application for re-employment, although Alumax had a record of Ms. Jones's DeQuervain's tenosynovitis and her ganglion cyst conditions (as well as the two surgeries performed to correct them), Alumax knew also that she had doctors' releases for both conditions. Because she had received full releases on these conditions within months of the relevant surgeries, the severity of any impairment of her major life activities (lifting and performing manual tasks) is outweighed by the short duration and temporary nature of the conditions. As discussed above, the only persistent condition on June 27, 1997 was the intersection/transition condition, and that condition did not substantially limit either of Ms. Jones's two identified major life activities (lifting and performing manual tasks). See Lusk, 238 F.3d at 1241 (observing at "the impairment indicated in the record must be one that substantially limits a major life activity"). Accordingly, the record of Ms. Jones's impairment does not establish a disability.
Can Ms. Jones demonstrate that Alumax regarded her has having a physical impairment that substantially limited one or more major life activities?
Finally, Ms. Jones could establish that she had a disability, for purposes of the ADA, by showing that Alumax regarded her as having a physical impairment that substantially limited one or more major life activities. 42 U.S.C. § 121022(2)(C). There are "two ways an individual may qualify for protection under this subsection: `(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual nonlimiting impairment substantially limits one or more major life activities.'"Rakity, 302 F.3d at 1162 (citing Sutton v. United Air Lines. Inc., 527 U.S. 471, 489 (1999)). The United States Supreme Court has noted that these views, "often result from stereotypic assumptions not truly indicative of individual ability," Sutton, 527 U.S. at 489. The Tenth Circuit has recently reiterated that under this third definition of "disability," an employer must have regarded the employee as substantially limited in one or more of that employee's affected major life activities. Rakity, 302 F.3d at 1162.
Alcoa correctly states that Alumax did not mistakenly believe that Ms. Jones had a physical impairment that substantially limited a major life activity, where (as discussed above) Alumax ostensibly relied on the doctors' releases that demonstrated, to the contrary, that she did not have such an impairment. See Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1242 (10th Cir. 2001) (Plaintiff not "regarded as" disabled where Defendant's perception of Plaintiff "was not based on speculation, stereotype or myth, but on the doctor's written evaluation of Plaintiff's condition."). But Ms. Jones has pointed to evidence that raises a factual issue on the question of whether Alumax mistakenly believed that her actual, non-limiting impairment substantially limited her major life activities. In her deposition, Ms. Jones testified that when she spoke with Mr. Durand in Alumax's Human Resources office on June 20, 1997, to give him Dr. Johnson's release, he asked her "if [she] was going to need any other legal [sic] treatment in the future." (Jones Dep. at 116:17-18.) In response, she told him that she "didn't know because [she] was having problems with the Worker's Compensation claim. They were denying the intersection syndrome. . . . He asked [her] about that. [She] told him they were still denying it." (Id. at 116:19-23.) According to her testimony, Mr. Durand went on to tell her that "[she] had a previous injury down there, and that [she] had been on disability. And then he told [her] that they couldn't hire people with disabilities or injuries down there because they didn't have light duty, and [she] couldn't be hired because [she] had been both previously injured and . . . on disability, on Worker's Compensation disability." (Id. at 116:24-117:4.)
Ms. Jones claims that when Mr. Durand asked her about future medical treatment and her workers' compensation claim, he acted contrary to 29 C.F.R. § 1630.13(a), which prohibits pre-employment examinations or inquiries. These inquiries, combined with Mr. Durand's statement that Alumax "could not hire people with disabilities or injuries" because of the lack of light duty assignments, support an inference that Alumax perceived Ms. Jones's wrist injuries to be a substantial limitation on her ability to perform the work required at Alumax. To the extent that that work involved lifting, carrying, performing manual tasks, or any other recognized "major life activity," the record, read in the light most favorable to Ms. Jones, supports a conclusion that Alumax did indeed perceive Ms, Jones as disabled.
Although Mr. Durand's alleged statements do not specifically address Ms. Jones's professed major life activities of lifting and performing manual tasks, the court is mindful that all reasonable inferences are to be construed in favor of Ms. Jones. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adler, 144 F.3d at 670; Aramburu v. Boeing Co., 112F.3d 1398, 1402 (10th Cir. 1997).
CAPPING DAMAGES
As mentioned above, it is because of this intervening disability that Ms. Jones's prospective damages are capped. But the parties have conflicting views on the question of what is the appropriate date at which to cap damages. Alcoa claims that Ms. Jones was unable to return to employment with Alcoa at the onset of her heart condition, but Ms. Jones contends that it was not until March 22, 2000, (following an unsuccessful second ablation procedure in December 1999) that her doctor advised her not to work with heavy machinery. It is clear that the factual question of what date Ms. Jones's heart condition rendered her unable to work at Alcoa is one to be determined by the trier of fact.
Alcoa marks the onset of the heart condition as August 1997 (Jones Dep. at 7:24-8:9, 85:22-86:2), while Ms. Jones points (without citation to the record) to May 22, 1997.
CONCLUSION
Because Ms. Jones has produced evidence that creates genuine issues of material fact on the question of whether Alumax regarded her as disabled, Alcoa's Motion for Summary Judgment is DENIED. However, Alcoa's Motion for Summary Judgment on the question of whether any back pay award should be capped is GRANTED, with the actual date Ms. Jones's heart condition rendered her unable to work for Alcoa to be determined at trial.