Opinion
No. SA-02-CA-0531-RF
December 1, 2003
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the motion for summary judgment of Defendant Tyson Foods, Inc. (Docket No. 28). Having carefully reviewed all of the various submissions and the applicable law, the Court GRANTS the motion.
Background
In his complaint, Plaintiff alleges a claim under the Americans with Disability Act ("ADA") stemming from his discharge on January 10, 2000. Plaintiff was employed by Defendant from approximately October 23, 1984 until August 1, 2000. For the majority of that time, Plaintiff worked as a Route Sales Driver. The essential functions of a Route Sales Driver include: loading tubs or packages of chicken, each weighing approximately 40 pounds, onto a truck; driving the truck from the Tyson facility in Seguin, Texas to restaurants in the San Antonio area; unloading the tubs of chicken from his truck into the restaurants; and returning to the Tyson facility in Seguin.
In 1995, Plaintiff suffered three injuries on the job. In May 1995, Plaintiff broke his right foot when a steel bar fell across it as Plaintiff was delivering a cooler. Plaintiff claims he went to Defendant's nurse, who did not diagnose a broken foot. For two weeks thereafter, Plaintiff claims he was required to make extra runs. When the pain worsened, Plaintiff went to his personal doctor who diagnosed a broken foot. On July 9, 1995, Plaintiff was released by his doctor to return to full work duty without restrictions. Plaintiff returned to work.
On September 18, 1995, Plaintiff re-injured his foot causing a stress fracture. On November 3, 1995, Plaintiff was released by his treating physician to work full-duty with no restrictions. Plaintiff again returned to work. On December 1, 1995, Plaintiff crushed his right heel by falling off a trailer. Following surgery, Plaintiff was released by treating physician Dr. Galindo to return to work. Plaintiff did, in fact, return to work. Plaintiff and Defendant do not agree on whether Plaintiff was returned to full duty work or light duty work. Plaintiff claims that as of August 1996, Dr. Galindo cleared Plaintiff for light duty work only. Defendant claims Dr. Galindo repeatedly cleared Plaintiff for full duty work until January 20, 1999 when for the first time Dr. Galindo placed restrictions on Plaintiff's ability to work, restrictions that made Plaintiff unable to perform the Route Sales job. Medical documentation in the record from Dr. Galindo shows that Plaintiff was returned to full-duty work, though Plaintiff claims it was with the understanding that Plaintiff had certain restrictions on his ability to work.
Defendant also claims that, although Dr. Galindo cleared Plaintiff for full-duty work following the August 1995 injury, because Plaintiff complained to his supervisor about pain in his foot, Defendant voluntarily allowed Plaintiff to cease work as a Route Sales Driver and instead work as a Shuttle Driver sometime during late 1996 or early 1997. Shuttle driving is less physically demanding than Route Sales work because it does not require drivers to load and unload the cases of chicken from their trucks. Shuttle driving also pays considerably more per delivery than Route Sales driving. Whether mandated due to a restriction by Dr. Galindo or voluntarily suggested by Defendant, Plaintiff began performing shuttle driving work full time. Plaintiff continued in that capacity until July 31, 1999. Plaintiff was the first full-time Shuttle Driver employed by Defendant. Prior to Plaintiff being made Shuttle Driver, the shuttle driving work had been assigned to all Route Sales Drivers on a rotational, volunteer basis. This allowed all Route Sales drivers to earn additional pay, performing less strenuous work, as a supplement to their Route Sales work.
Tumlmson's monthly income was approximately twenty to thirty percent higher as a shuttle driver.
Defendant alleges that the transfer of the shuttle driving work from all Route Sales drivers to Plaintiff alone caused resentment among the other drivers. On or about January 1, 1999, Defendant proposed restructuring the routes to again allow all Routes Sales drivers to rotate the shuttle driver work. Dwight Siemens, Plaintiff's supervisor, asked Plaintiff to resume being a Route Sales driver. Plaintiff informed Siemens that he could not perform the Route Sales driver position because of his heel injury. Siemens responded that he thought Plaintiff was capable of performing the Route Sales driver duties. Plaintiff refused to return to the Route Sales position and was suspended from work for insubordination for approximately 10 days. Plaintiff then provided Defendant with a note from Dr. Galindo stating that Plaintiff could not perform the Route Sales driver position because Plaintiff could not lift or carry or walk for extended distances. Upon receipt of Dr. Galindo's note, Defendant allowed Plaintiff to continue working as a Shuttle Driver.
On July 31, 1999, Plaintiff was involved in a non-work related automobile accident that resulted in a broken left femur. Plaintiff was granted a leave of absence from work until January 10, 2000, at which point Plaintiff's then treating physician, Dr. Williams, cleared Plaintiff for work with the restriction that Plaintiff not lift more than 20 pounds. On or about September 1999, Defendant eliminated the Shuttle Driver position and began rotating the shuttle driving work among all the Route Sales drivers. Defendant has not employed any full-time Shuttle Driver since Plaintiff was injured in July 1999.
When Plaintiff was cleared to return to work with the heavy lifting restriction, Plaintiff met with Siemens who informed Plaintiff that the Shuttle Driver position had been eliminated. Siemens offered Plaintiff a transfer to the Tyson Production Facility also located in Seguin, Texas. Plaintiff did not accept the position. Plaintiff also met with Defendant's Regional Director of Route Sales, Joe Kidd, about a position as a long haul driver. Plaintiff and Defendant dispute the substance of that conversation. Plaintiff claims he asked for a position as a long haul driver and was informed he could not have such a position while Defendant claims he offered Plaintiff the long haul driver position and Plaintiff refused. Plaintiff left the Defendant's facility on January 10, 2000, and remained on medical leave until August 1, 2000. On August 1, 2000, Plaintiff's medical leave ran out; and because Plaintiff refused to return to work in the positions offered him, Plaintiff was terminated.
On May 5, 2000, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") claiming that he was discharged in violations of his rights under the ADA. On March 15, 2000, Plaintiff received a right to sue letter from the EEOC. On June 4, 2002, Plaintiff filed the instant lawsuit.
Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in his favor." The moving party bears the burden of establishing that there are no genuine issues of material fact.
See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. The Court, in turn, "must draw all reasonable inferences in favor of the nonmoving party, and . . . may not make credibility determinations or weigh the evidence."
See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178.
See Celotex, 477 U.S. at 324.
See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 150 (2000) (citations omitted).
B. Grounds for Summary Judgment
I. Plaintiff Cannot Establish a Prima Facie Case of Disability Under the ADA
A. Plaintiff is Not Disabled within the Meaning of the ADA
The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.
In Toyota Motor Mfg., Kentucky, Inc. v. Williams, the Supreme Court defined "major life activity" as "those activities that are of central importance to daily life." The Court also referenced the HEW Rehabilitation Act regulations which provide a list of "major life activities" including walking, caring for oneself, performing manual tasks, seeing, hearing, speaking, breathing, learning and working.
534 U.S. 184(2002).
Id. at 197.
Id. at 195; see also 29 C.F.R. § 1630.2 (i) (1996).
The EEOC has promulgated regulations defining "substantial impairment" as "unable to perform a major life activity that the average person in the general population is able to 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 activity." In determining whether a person meets the "substantial impairment" standard, the following factors should be considered: (1) the nature or severity of the impairment, (2) the duration or expected duration of the impairment, and (3) the known or expected permanent or long-term impact resulting from the impairment.
Id.; see also 29 C.F.R. § 1630.2 (j) 2001.
Id.
Id.
In Toyota Motor Mfg., Kentucky, Inc. v. Williams, the Supreme Court stated that "the word `substantial' thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities." The Supreme Court held that "in order to be substantially limited in performing manual tasks, and 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."
Toyota Motor Mfg., Kentucky, Inc., 534 U.S. at 197; Kapche v. City of San Antonio, 304 F.3d 493, 497 (5th Cir. 2002).
Id. at 198.
The Court must conduct an individualized assessment of the effect of Plaintiff's impairment. The Court notes that Defendant has stipulated that Plaintiff is physically impaired. Thus, the issue this Court must decide is whether Plaintiff can make a prima facie case that the impairment substantially limits a major life activity. Plaintiff avers, and this Court must accept as true for the purpose of this Motion for Summary Judgment, that Plaintiff suffers from a permanent disability due to a right heel fracture which has left Plaintiff unable to lift or carry or walk for extended distances and unable to load a truck. This disability causes Plaintiff to experience continuous pain after walking distances of twenty minutes. Plaintiff is also permanently disabled due to a car accident in 1999 which has left Plaintiff unable to lift more than twenty pounds, squat or crawl on ladders, walk for more than twenty minutes or jump from ramps or trailers onto the ground.
Id. at 199.
See Pl's Response to Def s Mot. Summ. Jud., at 11.
Id.
Id.
Defendant points to numerous Fifth Circuit cases which hold that climbing, squatting, and crawling are not "major life activities" under the ADA. In Williams v. Channel Masters Satellite Systems, Inc., the Fourth Circuit held that as a matter of law a twenty-five pound weight restriction does not qualify as a "substantial limitation on a "major life activity." Defendant points the Court to Pryor v. Trane Co., which held in the context of an appeal from a jury verdict finding Plaintiff not disabled, that a reasonable juror could find that a lifting limitation of 20 pounds was not a substantial limitation on a major life activity. Pryor is not dispositive on the issue before this Court which, in deciding a motion for summary judgment, is whether any reasonable jury could find that Plaintiff's limitation is a substantial limitation of a major life activity, a much stricter standard than that applied by an appellate court reviewing a jury verdict.
See e.g. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726-27 (5th Cir. 1995); Elstner v. Southwestern Bell Tel. Co., 659 F. Supp. 1328 (S.D.Tex. 1987)
101 F.3d 346, 349 (5th Cir. 1996); See Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311, 1319 8th Cir. 1996); Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir. 1995) (plaintiff not substantially limited in major life activity of working where plaintiff was restricted to light duty with no working in cold environment and no lifting items weighing more than 20 pounds; Burns v. Coca-Cola Enterprises, Inc., 222 F.3d 247 (6th Cir. 2000) (holding that a lifting restriction of 23 pounds was a substantial limitation on a major life activity and disagreeing with the proposition advanced by the Fourth and Eighth Circuits that any weight limitation can as a matter of law not meet the standard for substantial limitation under the ADA because the ADA requires an individualized assessment of the Plaintiff's situation).
138 F.3d 1024, 1027 (5th Cir. 1998).
As for Plaintiff's twenty minute walking limitation, the Defendant cites Talk v. Delta Airlines, in which the Court held that "moderate difficulty experienced while walking does not rise to the level of a disability." In that case, Plaintiff walked with a slight limp and walked slower than the average person.
165 F.3d 1021 (5th Cir. 1999); see also Taylor v. Pathmark Stores, 177 F.3d 180 (3rd Cir. 1999) (employee requiring hourly breaks from walking was not substantially limited); Wood v. Crown-Redi Mix, Inc., 339 F.3d 682 (8th Cir. 2003) (employee who could only walk on-quarter mile without resting and who walked with a cane was not substantially limited under the ADA).
Id. at 1025.
Id.
Plaintiff admits that he can drive, walk around his house, property, and neighborhood, mow the lawn, cook, do dishes, sit and read for up to four hours, feed his dog and horses, including occasionally lifting forty pounds of pet food, wash and fold clothes, and make his bed. On occasion, Plaintiff picks up hay on his property, and has purchased and used tickets to Fiesta Texas Amusement Park.
Plaintiff responds that while Plaintiff can perform the above activities, he does so against the advice of his doctor and risks losing the ability to walk. Plaintiff claims that he is restricted basically to sitting, and that it is only with accommodations, help from family, a riding lawnmower, and the ability to sit every twenty minutes, that Plaintiff can perform some daily activities. Plaintiff states he cannot walk further than his mailbox without having to rest and cannot walk without a limp. Plaintiff admits he engages in activities he should not such as going to Fiesta Texas amusement park, lifting dog food, and climbing on ladders, but he does so at the risk of losing his ability to walk altogether and should not be expected to take those risks on a daily basis.
In reply, Defendant cites Sutton v. United Air Lines, Inc., in which the Supreme Court held that to qualify as disabled under the ADA a person must be "presently — not potentially or hypothetically — substantially limited." In Sutton, the Court held that a determination of disability must be made in light of Plaintiff's condition as mitigated by Plaintiffs attempt to reduce disability not in light of Plaintiff's condition without regard to mitigating measures. Because Sutton addressed plaintiffs whose disability has a lesser impact due to mitigating acts that reduce the disability, Sutton is very different from the issue in the instant case where Plaintiff's disability has a lesser impact because Plaintiff chooses to perform acts contrary to medical advice.
527 U.S. 471 (1999).
Id at 482.
Id.
However, the Court finds that Plaintiff cannot show that he is substantially limited in a major life activity. Plaintiff is restricted from walking for over twenty minutes, lifting over twenty pounds, squating or crawling on ladders, and jumping from ramps or trailers onto the ground. Taking all Plaintiff's allegations as true, this Court finds that no jury could find that Plaintiffs impairments substantially limit major life activities.
See Dupre v. Charter Behavior Health Systems of Lafayette, Inc., 242 F.3d 610, 614 (5th Cir. 2001) (finding that a Plaintiff who could not sit or stand in one place for more than one hour was not disabled withing the meaning of the ADA).
This Court must also address whether Plaintiff's impairments substantially limit his ability to work. In order to show that an impairment qualifies as a disability because it significantly limits his ability to work, a Plaintiff must show that an impairment "significantly restrict[s] the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." In Mason v. United Air Lines, Inc., the Fifth Circuit held that a plaintiff was not substantially limited in his ability to work and thus that summary judgment was properly granted against a plaintiff who could not lift, push or pull more than 20 pounds.
274 F.3d 314 (5th Cir. 2001).
Id.
The Mason Court stated that Plaintiff's "ability to perform physical work was greatly limited," but that there was no evidence that Plaintiff could not perform "a broad range of other jobs that did not require the manipulation of weighty objects." Likewise, in this instant case, Plaintiff was only restricted from the route shuttle driving job; there were many other jobs from which Plaintiff was not restricted. For example, Plaintiff admits that he could have performed the shuttle driver position had it still been available. Thus, this Court finds that no genuine issue of material fact exists that Plaintiff's impairments substantially limit his ability to work.
Id. at 317.
Id.
1. Regarded as Disabled
Even if a plaintiff does not have an impairment that substantially limits a major life activity, a plaintiff can still be found disabled if the plaintiff is regarded as disabled. In support of his claim that he was regarded as disabled, plaintiff discusses Ross v. Campbell Soup, in which the Sixth Circuit found a plaintiff provided sufficient evidence that the defendant regarded him as disabled and that an issue of material fact existed regarding the company's state of mind. In Ross, when the plaintiff returned to work after an injury, the defendant encouraged him to find a new job, gave him his first negative review, placed him on probation, and dramatically increased his sales quotas.Plaintiff claims that this case is factually similar to the instant one but Plaintiff's rendition, in this section, of the facts of the instant case mischaracterize the record as a whole. Plaintiff states "after Plaintiff returned from work from his hip replacement, Defendant changed his job requirements, offered to help him find another position, (Route Sales Driver), which he was not physically capable of doing, and then terminated him." Defendant then told Plaintiff that Plaintiff must return to work without a disability because he was returning from a work related injury, refused to individually assess Plaintiff's capability, and refused Plaintiff's request to be a long haul driver.
Pl's Response to Def's Mot. Summ. Jud., at 14.
However, the record reflects that Plaintiff returned from an injury to find that his job had been eliminated. Defendant offered to place him in Plaintiff's prior job, a Route Sales driver, but Plaintiff stated he could not perform that job due to his impairments. Defendant then offered Plaintiff a job in the production plant but Plaintiff refused. Plaintiff claims that he was prevented from accepting the production job because of his disability, but Plaintiff points to no evidence that he ever inquired whether the production job in fact required work in violation of Plaintiff's physical restrictions. In fact, Plaintiff's deposition indicates that Plaintiff simply did not want to work in the production plant. Furthermore, Plaintiff claims he asked about working as a long haul driver but Defendant stated Plaintiff should not work as a long haul driver because it required heavy lifting.
This Court accepts as true Plaintiff's allegation that Defendant stated initially that Plaintiff could not return to work from a non-work related injury without being fully cleared. However, even if Defendant stated that, Plaintiff admits that Defendant did offer Plaintiff a job after returning from the non-work related injury.
Supra at 16.
Furthermore, Plaintiff claims that Defendant's decision to remove Plaintiff's shuttle driver position was influenced by nonacceptance of the accommodation of Plaintiff by Plaintiff's coworkers. Plaintiff argues the perception of nonacceptance reflects myths, fears or stereotypes regarding the impact of Plaintiff's medical condition. There is nothing in the record to support the notion that coworkers' unhappiness with Plaintiff's position as shuttle driver was due to a perception that he is disabled and not due to the fact that when Plaintiff became a shuttle driver, Plaintiff's coworkers were prevented from accepting the easier, higher paying shuttle driving work on a rotational, volunteer basis. In fact, Plaintiff admits that other Route Shuttle Drivers wanted Plaintiff's job as the Shuttle Driver.
Tumlinson Deposition, at 64.
Finally, the record reflects, and in other parts of Plaintiff's briefing to this court Plaintiff has admitted, that subsequent to Plaintiff's injuries, Defendant regarded Plaintiff as non-disabled. Accordingly, this Court finds that Plaintiff's own statement that Defendant regarded Plaintiff as non-disabled, along with Plaintiff's admission that Defendant did try to find a job for Plaintiff which comported with Plaintiff's impairments, shows that there is no genuine issue of material fact that Defendant regarded Plaintiff as disabled.
See Pl's Response to Def s Mot. Summ. Jud., at 3.
Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121 (5th Cir. 1998) (where the employer attempted to place the injured employee in other positions for which it did not deem her disqualified, the employer did not regard the employee as disabled).
Accordingly, Plaintiff cannot make a prima facie showing of disability as required by the ADA. This Court need not, therefore, address Defendant's other grounds for summary judgment. However, the Court notes that even if Plaintiff could make a prima facie case of disability under the ADA, Defendant offered Plaintiff a reasonable accommodation.
When Plaintiff returned to work on January 10, 2000, following surgery for his broken femur, Defendant informed Plaintiff that his job of Shuttle Driver had been eliminated. Defendant offered Plaintiff the job of Route Sales driver. Upon learning that Plaintiff's impairments prevented Plaintiff from performing the duties of Route Sales driver, Defendant offered Plaintiff a job in the production plant. Plaintiff refused this job. In Plaintiff's Response, Plaintiff does not address Defendant's affirmative defense of reasonable accommodation. However, in the facts section of Plaintiff's response, Plaintiff claims that he refused the job at the production plant because he knew it would require him to stand for 8 hours a day, which is not possible due to Plaintiff's impairments. However, in Plaintiff's deposition, Plaintiff stated the following:
A: I did not accept the job in the plant.
Q: And they did offer them though?
A: Dwight Siemens suggested it.
Q: When you say he suggested it, what do you mean?
A: I mean he suggested it. He said there are jobs available in the plant if you would like. I did not accept that. I didn't-I rejected the notion of it.
Tumlinson Deposition at 86.
Later in the deposition, Plaintiff admits that he does not know for a fact whether he could have performed a job in the plant.
Id. at 92.
Defendant's offer of a job in the production plant met the standard for a reasonable accommodation under the ADA. Defendant did not have to offer a job of equal pay if one was not available. Furthermore, Defendant is not required to create a position for Plaintiff, such as the Shuttle Driver position, that would place a heavier burden on other employees.
Allen v. Rapides Parish School Board, 204 F.3d 619, 623 (5th Cir. 2000); See also EEOC Interpretive Guidance, 29 C.F.R. § 1630.2(o).
Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995); 29 C.F.R. § 1630.2(p)(2)(v).
For the reasons stated above, it is hereby ORDERED that Defendant's Motion for Summary Judgment be GRANTED.
It is also hereby ORDERED that all pending motions be denied as MOOT.
It is so ORDERED.