Opinion
No. C98-0023
June 3, 1999.
ORDER
This matter comes before the court pursuant to defendant's April 21, 1999 motion for summary judgment (docket number 12). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendant's motion is granted.
The plaintiff, Kenneth E. Lloyd (Lloyd), was hired by the defendant, the Hardin County Secondary Road Department (Hardin County) in July of 1995. In October of 1995 Lloyd sustained a serious injury resulting from a fall which resulted in him being partially paralyzed from the waist down. Lloyd's employment was terminated on February 21, 1996. Lloyd alleges that his discharge violated the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Hardin County claims that it is entitled to summary judgment because Lloyd cannot as a matter of law, establish a prima facie case of disability discrimination in violation of federal law.
Summary Judgment
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1014 (1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert. denied, 474 U.S. 1057 (1986) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983), cert. denied, 465 U.S. 1026 (1984)).
In the context of employment discrimination cases, summary judgment should be used sparingly. Hardin v. Hussman, 45 F.3d 262, 264 (8th Cir. 1995) (citations omitted). "`Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.'" Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (quoting Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir. 1994)). In applying these standards, the court must give the nonmoving party the benefit of all reasonable inferences to be drawn from the evidence. Krause v. Perryman, 827 F.2d 346, 350 (8th Cir. 1987).
Statement of Material Facts Not in Dispute
Lloyd began his employment with the Hardin County Secondary Road Department on July 10, 1995. Lloyd's job duties during the summer months consisted of locating and replacing broken drainage tiles. Lloyd's winter duties were to include clearing snow from gravel roads with the use of a road maintainer and cutting brush with a chainsaw out of ditches.
On October 8, 1995, Lloyd sustained a severe spinal cord injury after falling from a second story porch. This injury was not work-related. The accident rendered Lloyd an incomplete paraplegic, meaning that he had no feeling below his knees and only partial feeling up to his buttocks. By November of 1995 Lloyd began ambulating upright with the use of leg braces and forearm crutches. Lloyd was discharged from the hospital in December of 1995 and continued his rehabilitation efforts on an out-patient basis. Currently, Lloyd can walk with his leg braces and forearm crutches for 10 to 15 minutes at a time, walking a maximum of 100 to 200 feet.
On January 5, 1996, the parties held a meeting at the Hardin County shop in an effort to determine what possible modifications could be made to the road maintainer that would enable Lloyd to climb into it drive it with his leg braces and crutches. Lloyd concedes that he will never again be able perform the strenuous physical labor involved with the tiling job, even with reasonable accommodation.
On January 9, 1996, another meeting concerning Lloyd's recovery and ability to return to work was held at Covenant Hospital in Waterloo. At this meeting, Lloyd's treating physician, Dr. Verduyn, did not provide an anticipated date when Lloyd would be released to work. Lloyd personally believed that he could probably return to work around April of 1996. In a letter dated January 16, 1996, Hardin County Engineer Robert Haylock provided Dr. Verduyn with a copy of Lloyd's job description and asked for Dr. Verduyn's opinion regarding what job duties Lloyd could be expected to perform, with reasonable accommodation, and when Lloyd might be expected to return to work.
On February 7, 1996, Lloyd drove himself to the county shop to visit his co-workers. Upon leaving, one of Lloyd's leg braces collapsed, causing him to fall to the ground. Ken Crosser, one of Lloyd's supervisors and distant relatives, witnessed this incident and reported it to Robert Haylock. Crosser expressed his concerns as to the serious harm Lloyd would sustain if he were to fall while attempting to climb into the cab of the maintainer. On February 21, 1996, Haylock wrote Lloyd a letter, terminating his employment with Hardin County.
As a result of his accident, Lloyd applied for Social Security Disability Income in October of 1995. Lloyd and his family began receiving their checks in April, 1996. In applying for disability benefits, Lloyd stated that he was totally disabled and unable to work. Lloyd is still receiving disability benefits.
CONCLUSIONS OF LAW The Americans With Disabilities Act
Hardin County claims that it is entitled to summary judgment on Lloyd's disability discrimination claim because he has generated no genuine issue of material fact and cannot establish a prima facie case of discrimination. Lloyd argues that he can establish a prima facie case for recovery under the Americans With Disabilities Act (ADA), thereby precluding summary judgment. This court agrees with Hardin County.
The ADA forbids employers from discriminating against an otherwise qualified employee with a disability, because of that disability. 42 U.S.C. § 12112(a); Pedigo v. Pam Transport, Inc., 60 F.3d 1300 (8th Cir. 1995). A qualified individual with a disability is a person with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. 42 U.S.C. § 12111(8).
Under the ADA, a plaintiff must establish a prima facie case by showing that he (1) was disabled within the meaning of the Act, (2) was qualified to perform the essential functions of the job, with or without reasonable accommodation, and (3) suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Snow v. Ridgeview Medical Center, 128 F.3d 1201 (8th Cir. 1997) (citing Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996)). After an ADA plaintiff establishes a prima facie case, a rebuttable presumption of discrimination attaches and "the burden of going forward with evidence shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir. 1996), cert denied, 117 S. Ct. 274, 136 L. Ed. 2d 197 (1996). Once an employer comes forward with such a reason, the presumption of discrimination is rebutted. Id. At that point, the burden shifts back to the plaintiff to prove that the defendant's proffered reason is pretextual. Id. At all times, the plaintiff retains the burden of persuading the trier of fact that he has been the victim of discrimination. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995).
For purposes of this motion only, Hardin County concedes that Lloyd is "disabled" within the meaning of the ADA.
Qualified Individual With a Disability
Hardin County claims that Lloyd has not made the requisite showing that he was able to perform the essential functions of his job, with or without reasonable accommodation, and is therefore not a qualified individual with a disability. According to Hardin County, the essential functions of Lloyd's position include replacing broken drainage tiles and culverts during the summer months and plowing snow and cutting trees and brush from ditches during the winter months. Hardin County contends that it is entitled to summary judgment because Lloyd cannot establish the second element of his prima facie case. Lloyd argues that he could perform the essential functions of driving the road maintainer full-time, with reasonable accommodation, thereby making summary judgment inappropriate.
Protection under the ADA extends only to "a qualified individual with a disability." Benson, 62 F.3d at 1111 (quoting 42 U.S.C. § 12112(a)). Determining whether an individual is qualified requires a two-part analysis: "(1) whether the individual meets the necessary prerequisites for the job, such as education, experience, training, and the like; and (2) whether the individual can perform the essential job functions, with or without reasonable accommodation." Id. at 1111-1112. Hardin County does not take issue with the first requirement. It is the second prong of this inquiry that is disputed.
"An essential function `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." Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998) (quoting 29 C.F.R. § 1630.2(n)(1)). Factors to be considered when determining the essential functions of a job include:
(1) the employer's judgment as to which functions are essential;
(2) written 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.Id., (quoting 29 C.F.R. § 1630.2(n)(3)). Another factor to consider in determining whether a job function is considered essential is whether there is only a "limited number of employees available among whom the performance of that job function can be distributed." Id. (quoting 29 C.F.R. § 1630.2(n)(2)).
A written job description for the position of Construction Equipment Operator was provided to Lloyd for his signature at the time he was hired by Hardin County in May of 1995. The job description included the following requirements:
Must be able to function as a general laborer. Must be able to lift 80 lbs. occasionally. Must be able to operate equipment utilizing both hands and feet controls simultaneously. Must be able to shovel and spread various materials, and cut debris and brush from ditches. Must be able to work outside in extremely cold, hot, and wet weather.
This is strenuous and physical work involving climbing, balancing, stooping, kneeling, lifting, and requiring good corrected hearing and vision, both night and day, and during snowing and blowing blizzard conditions.
In the judgment of Hardin County, the essential functions of the winter snow plowing job entail much more than climbing into the cab and operating the machine. As an example, Hardin County points out that Lloyd would need to be able to stand and reach around the cab of the maintainer to clean the windows. Hardin County also notes that Lloyd would be operating his maintainer out in the country alone. Therefore, he would have to be able to climb in and out of his maintainer as needed to do things such as re-mounting or untangling the chains on the wheels or repositioning a wing blade. Finally, when there is no snow to plow, Lloyd's wintertime job would consist of walking ditches to cut back brush with a chainsaw. Again, Lloyd makes no contention that he would be capable of doing such work, and admits that he is unable to perform the duties of the summer tiling job.
Lloyd's suggested accommodations include modifying the steps leading to the cab of the maintainer such that he could climb into the cab using his leg braces, excusing him from the summer tiling job and allowing him to operate a road maintainer year round, excusing him from cutting brush from ditches, and allowing him to enlist the help of other employees when problems arose with the maintainer. Hardin County argues Lloyd's proposed accommodations are not reasonable and are not required by the ADA. The court finds that Lloyd has failed to make a facial showing that a reasonable accommodation was possible. See Benson, 62 F.3d at 1112 (noting that initial burden is on plaintiff to make a facial showing that a reasonable accommodation was possible).
It is well settled that job restructuring is a potential accommodation under the ADA. Id. at 1112. However, "[a]n employer need not reallocate the essential functions of a job, which a qualified individual must perform." Id. at 1112-1113 (emphasis in original). At the time Lloyd's employment was terminated, his job required him to fix broken drainage tiles in the summer and operate a maintainer, walk ditches and cut brush in the winter. See Id. at 1114 (determining what constitutes essential functions of a job focuses on the position held by the plaintiff at the time his employment was terminated). Excusing Lloyd from the tiling job and allowing him to operate a maintainer year round would mean that either an additional employee would need to be hired to do the tiling job or that an employee with more seniority would be "bumped" back down, in violation of the collective bargaining agreement, into the tiling job. The ADA does not require an employer to take either of these actions. Moritz, 147 F.3d at 788. See also Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1218 (8th Cir. 1999) ("employer is not required to hire additional employees . . ."); Mason v. Frank, 32 F.3d 315, 319 (8th Cir. 1994) ("An employer is not required to accommodate a handicapped individual [Rehabilitation Act case] in a manner that would violate the rights of other employees under a legitimate collective bargaining agreement."); Benson, 62 F.3d at 1114 ("The ADA does not require that [the employer] take action inconsistent with the contractual rights of other workers under a collective bargaining agreement."). Moreover, the ADA does not require that Hardin County reassign existing workers to assist Lloyd in completing the essential functions of his job. Moritz, 147 F.3d at 788.
Direct Threat
Hardin County claims that Lloyd was no longer qualified to work in his former position because the undisputed facts indicate that such work would pose a "direct threat" to his own health and safety. Lloyd argues that there exists a genuine issue of material fact, thereby precluding summary judgment.
An employee is not a "qualified individual with a disability" if the employee's disability poses a "direct threat" to the health or safety of himself or others. 42 U.S.C. § 1213(b); Burroughs v. City of Springfield, 163 F.3d 505, 508 (8th Cir. 1998). The regulations define a "direct threat" as follows:
[A] significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
Although Hardin County's concerns regarding Lloyd's personal safety are commendable, they are not based on the "most current medical knowledge and/or the best available objective evidence." To the contrary, these concerns arose from personal observations and fears. The record indicates no reliance on any medical records or any other objective evidence. Therefore, Hardin County's contention that Lloyd was not qualified for the position because he posed a "direct threat" to his own health and safety is not a proper basis upon which to grant summary judgment.
Social Security Disability Benefits — Judicial Estoppel
In October of 1995, shortly after his accident, Lloyd applied for Social Security Disability benefits. Lloyd and his family began receiving the disability benefits in early 1996 and continue to do so. As part of his application, Lloyd stated, under oath, that he was totally disabled and unable to perform any substantial gainful activity. Under these facts, Hardin County contends that Lloyd should be judicially estopped from now claiming to be a "qualified individual with a disability" who is capable of performing his job with a reasonable accommodation.
"The doctrine of judicial estoppel prohibits a party from taking inconsistent positions in the same or related litigation." Hossaini v. Western Missouri Med. Ctr., 140 F.3d 1140, 1142 (8th Cir. 1998).
The Eighth Circuit has addressed this issue several times, and ultimately has declined to hold that a plaintiff is judicially estopped from attempting to prove that he is a "qualified individual with a disability" under the ADA due to his applying for Social Security disability benefits. Downs v. Hawkeye Health Servs., Inc., 148 F.3d 948, 951 (8th Cir. 1998). "There is no inherent inconsistency between claiming to be eligible for Social Security disability benefits and claiming to be a qualified person with a handicap under the ADA, primarily because the Social Security disability standard does not take into account ability to work with a reasonable accommodation." Moore v. Payless Shoe Source, Inc., 139 F.3d 1210, 1212 (8th Cir. 1998). However, the Eighth Circuit did find that an employee's representations of total disability in order to collect disability benefits creates a "cumbersome" burden in overcoming an employer's motion for summary judgment. Id. at 1212-1213; Downs, 148 F.3d at 951.
When an ADA plaintiff has made prior representations of total disability during the relevant period, a district court properly enters summary judgment against him unless the plaintiff has presented "strong countervailing evidence" that he is in fact qualified, as defined by the ADA, to perform the essential functions of the job.Id. Prior representations of total disability will generally carry sufficient weight to grant summary judgment against the plaintiff. Dush v. Appleton Elec. Co., 124 F.3d 957, 963 (8th Cir. 1997).
The United States Supreme Court recently addressed this issue and agreed with the Eighth Circuit that claims for social security disability benefits and for ADA damages do not inherently conflict to the extent that a recipient of disability benefits is estopped from pursuing an ADA claim. Cleveland v. Policy Management Sys. Corp., 1999 WL 320795 (May 24, 1999). However, the Court also noted that claiming to be "totally disabled" in order to qualify for disability benefits appears to negate an essential element of an ADA case — that the plaintiff is able to perform the essential functions of his job, with or without reasonable accommodation. Id. at *7. Based upon this finding, the Court held that "an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather,he must proffer a sufficient explanation." Id. "To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless `perform the essential functions' of [his] job, with or without `reasonable accommodation.'" Id. at *8.
Except for a statement from Downs, supra, pointing out that the definition of "totally disabled" for disability benefits purposes does not take into account a claimant's ability to work with reasonable accommodation, Lloyd has presented no explanation, let alone an explanation "sufficient to withstand summary judgment. For this reason, summary judgment is appropriate.
Upon the foregoing,
IT IS ORDERED
Defendant's April 21, 1999 motion for summary judgment is granted. This case is dismissed. The Clerk of Court shall enter judgment for the defendant.