Opinion
No. 3-869 / 03-0571
Filed March 10, 2004
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.
Pam Brown appeals the district court's order granting summary judgment in favor of Des Moines Independent Community School District. AFFIRMED.
Robert Wright, Jr., Des Moines, for appellant.
Andrew Bracken and James Wainwright of Ahlers, Cooney, Dorweiler, Haynie, Smith, Allbee, P.C., Des Moines, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Pam Brown ("Brown") sued the Des Moines Independent Community School District ("District"), alleging disability discrimination and retaliatory discharge. The trial court granted summary judgment in favor of the District. We affirm.
I. Background Facts and Proceedings
Brown worked as a custodian for a Des Moines elementary school. This job was classified as a "heavy" position. According to the job description, the position required frequent standing, walking, bending, stooping, reaching, pushing, pulling, climbing, and manual dexterity tasks, as well as occasional sitting, lifting of up to one hundred pounds, and carrying of objects for up to ten feet.
While working as a custodian, Brown injured her shoulder and eventually underwent surgery. Following the operation, Brown's physician cleared her to return to work "with no use of her right arm." That total limitation on the use of her arm was gradually changed to a five pound and then a ten pound lifting restriction. After several months, Brown's physician advised her she would be limited to bilaterally lifting less than fifteen pounds and only pushing and pulling up to twenty-five pounds.
Consistent with her medical restrictions, the District placed Brown in two temporary light-duty positions following her surgery. The first was in a print shop and the second was as a security dispatcher.
Meanwhile, Brown sought workers' compensation benefits. A medical examiner retained in connection with that proceeding opined that Brown was limited to "sedentary" work, defined as "exerting up to ten pounds of force occasionally and/or up to five pounds of force frequently and/or negligible force constantly to move objects."
While Brown's workers' compensation claim was pending, the District informed her that her temporary position as a security dispatcher was about to end. Brown asked to be reinstated in her custodial position. Citing her medical restrictions, the human resources manager declined.
Shortly thereafter, Brown received a termination letter. In pertinent part, the letter stated, "[s]ince your work as a custodian . . . involved heavy and medium heavy job responsibilities, it appears that your restrictions are such that you can no longer perform the essential functions of a custodial position with or without responsible (sic) accommodation."
Brown sued, alleging the District 1) discriminated against her on the basis of her disability, in violation of the Rehabilitation Act of 1973, and 2) discharged her in retaliation for seeking workers' compensation benefits. The District moved for summary judgment. The trial court ruled in favor of the District and this appeal followed.
II. Standard of Review
Summary judgment is appropriate where the record reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Meade v. Ries, 642 N.W.2d 237, 241 (Iowa 2002).
III. Disability Discrimination
Section 504 of the Rehabilitation Act of 1973 provides the following:
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .
29 U.S.C. § 794(a)(2000).
The Rehabilitation Act defines the term "individual with a disability" as any person who (1) "has a physical or mental impairment which substantially limits one or more of such person's major life activities"; (2) "has a record of such an impairment"; or (3) "is regarded as having such an impairment". 29 U.S.C. § 705(20)(B). Brown alleged that she meets the first or third definition of "individual with a disability." The district court concluded as a matter of law that she did not. We will examine the record with respect to each of these two definitions.
A. Physical Impairment Substantially Limiting Major Life Activities
The fighting issue is whether Brown has a physical impairment that "substantially limits" a major life activity. See Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540, 553 (1998). For purposes of summary judgment, the District concedes that Brown's shoulder injury is a "physical impairment" and that work qualifies as a "major life activity." Therefore, we need only focus on the "substantially limits" prong of this test.
Although Bragdon v. Abbott is a case interpreting the Americans with Disabilities Act (ADA) and the court is asked to interpret the Rehabilitation Act, cases interpreting either act are "applicable and interchangeable" to analysis of the other. Allison v. Dep't of Corrections, 94 F.3d 494, 497 (8th Cir. 1996).
Pertinent regulations state that:
With respect to the major life activity of working —
(i) The term substantially limits means significantly restricted in 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. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
29 C.F.R. § 1630.2(j)(3)(i); see also Bearschield v. John Morrell Co., 570 N.W.2d 915, 920 (Iowa 1997) (applying this regulation). Under the regulation, the following factors also may be considered "in determining whether an individual is substantially limited in the major life activity of `working'":
(A) The geographical area to which the individual has reasonable access;
(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).29 C.F.R. § 1630.2(j)(3)(ii).
There is no question that Brown suffered from a shoulder impingement which restricted her ability to use her right arm. For workers' compensation purposes, a medical examiner determined she had a "26 [percent] upper extremity impairment," which was "equivalent to a 16 [percent] whole person impairment." Her physician opined that the total impairment was "eight percent of her right upper extremity." The District conceded that this impairment restricted Brown to "sedentary work." Based on this concession, Brown claims the restriction excluded her from entire classes of jobs, such as those involving "heavy" lifting. However, her testimony establishes that her work limitation was substantially narrower. In a deposition, Brown stated:
Q: So it's your opinion that your shoulder condition affects your ability to work; correct? A: Yes.
Q: Does your shoulder condition prevent you from doing jobs other than the custodian position that you did prior to your injury? A: No.
She further testified:
Q: So really what we're talking about here in your answers to Interrogatory Number 20 is that the injury to your right arm and shoulder has affected your ability to work as a custodian; correct? A: True.
Q: It's not your testimony that the injury to your right arm and shoulder affects your ability to do work in general? A: No, it doesn't.
Cf. Bearshield, 570 N.W.2d at 921-22 (finding genuine issue of material fact where production line worker for previous thirty years established that degenerative arthritis in both knees prevented her from performing any production line work). In light of this testimony, we conclude Brown could not as a matter of law establish that her physical impairment significantly limited her ability to work. See Cole v. Staff Temps, 554 N.W.2d 699, 704 (Iowa 1996) (noting employee testified she did not consider herself disabled). Cf. Mellon v. Federal Express Corp., 239 F.3d 954, 957 (8th Cir. 2001) (concluding affidavit of rehabilitation counselor that wrist impairment represented permanent disability, together with medical impairment rating of thirteen percent due to right arm condition or eight percent to the body as a whole, was insufficient to defeat summary judgment for employer on Americans with Disabilities Act claim); Hamilton v. Rheem Mfg. Co., 158 F. Supp.2d 931, 933-34 (W.D. Ark. 2000) (holding employee's limitation to light to sedentary jobs did not substantially limit major life activity of working where employee found various jobs that she was able to perform within her restriction including delivering phone books, telemarketing, and performing quality control). B. Regarded as Having an Impairment
In light of our reliance on this testimony, we find it unnecessary to decide whether Brown's failure to introduce data on the availability of other jobs in the area mandates a ruling in favor of the employer, as the District contends. Cf. E.E.O.C. v. Rockwell Int'l Corp., 243 F.3d 1012, 1017 (7th Cir. 2001) (holding that, except in "rare cases" where claimant's impairments are so severe that substantial foreclosure from job market is obvious, plaintiff had to present "evidence of general employment demographics and/or of recognized occupational classifications that indicate approximate number of jobs ( e.g., `few,' `many,' `most') from which an individual would be excluded because of an impairment.") (citing 29 C.F.R. Pt. 1630, App. § 1630.2(j)); Duncan v. Washington Metro. Area Transit Auth., 240 F.3d 1110, 1114-15 (D.C. Cir. 2001), cert. denied, 534 U.S. 818 (2001) (concluding employer entitled to judgment as matter of law where employee offered no evidence of number and types of positions available in local job market that did not require heavy or medium lifting); Beason v. United Technologies Corp., 213 F. Supp.2d 103, 113-14 (D. Conn. 2002) (describing nationwide evidentiary thresholds to establish limitation from performing "class" or "broad range" of jobs and concluding plaintiff failed to satisfy threshold when he presented no evidence of specific job market in his geographic area).
A person is "regarded as" having an impairment if any of the following are true:
[the plaintiff] (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) 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 (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.
45 C.F.R. § 84.3(j)(2)(iv). The focus is on the impairment's effect on the attitudes of others. Cole, 554 N.W.2d at 704.
Brown argues that the District regarded her as restricted to sedentary work. She contends that, as a result of this perception, the District only encouraged her to find sedentary work and believed she was incapable of performing a heavy duty food service job she held early in her career or "any of the range of jobs within the job classification of custodian." She also suggests that the District's "fear" she would re-injure herself motivated the termination and this fear was "based on mere speculation." See Bearschield, 570 N.W.2d at 922-23 (stating employment decision based on "myth, fear or stereotype" satisfies "regarded as" part of disability definition). Finally, she points to evidence that the District encouraged her to apply for long-term disability benefits as proof that school personnel regarded her as disabled.
We reject Brown's arguments. It is established that evidence of an employee's inability to perform a particular job is insufficient to prove the employer regarded the employee as disabled. Id. at 923. The District terminated Brown not because it "regarded" her as having a sedentary work restriction, but because medical personnel in fact imposed such a restriction. Brown conceded this fact, testifying by deposition as follows:
Q: Did Mr. Grant offer any reasons why you couldn't return to your former custodial position? A: He said I couldn't do the job.
Q: Did he tell you why he believed you couldn't do the job? A: He said because of the doctor's reports.
We conclude this particularized assessment by the District was sufficient to defeat Brown's claim that the District regarded her as disabled. Cf. Vincent v. Four M Paper Corp., 589 N.W.2d 55, 63 (Iowa 1999) (holding "regarded as" disability claim under Iowa Civil Rights Act required plaintiff to "establish that the defendant failed to make the employment decision based on an individualized assessment of the plaintiff's condition, and instead based its decision on myths, fears or stereotypes.").
We recognize that in Bearshield, the Iowa Supreme Court found a material fact issue on the question of whether the employer regarded an employee as disabled based on the human resources director's statement that he did not "want to take the chance of further injuring [the employee] and having it become a worker (sic) comp problem." Id. The court also pointed to a foreman's statement that "he could not use her because of her restrictions" and a company nurse's statement that the employee "couldn't work with [her] restrictions." Id. However, the plaintiff in Bearshield also presented evidence that the employer had a policy prohibiting any employees with work restrictions from returning. Id. The District did not have that type of policy.
For the same reasons, we believe the District's reference to long-term disability benefits did not create a genuine issue of material fact on the "regarded as" disability claim. Cf. Taylor v. Nimock's Oil Co., 214 F.3d 957, 961 (8th Cir. 2000) (rejecting claim that employer's expression of concern and offer of medical leave created genuine issue of material fact on "regarded as" disability claim).
We affirm the trial court's entry of judgment in favor of the District on the "regarded as" prong of her disability claim.
IV. Retaliatory Discharge
Our highest court has recognized a cause of action for retaliatory discharge based on the filing of a workers' compensation claim. See Springer v. Weeks Leo Co., Inc., 429 N.W.2d 558, 562 (Iowa 1988). To establish a prima facie case of retaliatory discharge, Brown had to show a causal connection between the filing of her claim and her discharge. Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998). This causation standard is high. Id. Brown's filing of a workers' compensation claim had to be the "determinative factor" in the employer's decision to terminate her. Id. at 301-02.
We agree with the trial court that Brown's evidence of retaliatory discharge, as a matter of law, is insufficient to satisfy this standard. Brown sought workers' compensation benefits two months before she was discharged. She appears to recognize that the fact termination occurs after an employee engaged in protected activity is alone insufficient to establish a causal connection. Id. at 302; Phipps v. IASD Health Serv. Corp., 558 N.W.2d 198, 203 (Iowa 1997).
Brown says she has more. She attests that she saw a note being passed from one District employee to another concerning the fact she had "filed for and settled" her workers' compensation claim. The District responds that this note is immaterial because it was written after Brown was terminated. We disagree that the timing of the note renders it irrelevant. See Springer, 429 N.W.2d at 563 (stating "[c]orrespondence written after the happening of an event may be illuminating as to motives which prompted that event."). However, the note's contents, as described by Brown, merely establish that those responsible for the termination decision knew of Brown's workers' compensation claim. An employer's knowledge that an employee has engaged in protected activity is insufficient to establish causation. Teachout, 584 N.W.2d at 302; cf. Clarey v. K-Products, Inc., 514 N.W.2d 900, 902 (Iowa 1994) (finding evidence of late payment of workers' compensation benefits, disparaging comments concerning workers' compensation claims, and harassment following filing of workers' compensation sufficient to create submissible issue); Smith v. Smithway Motor XPress, Inc. 464 N.W.2d 682, 684 (Iowa 1990) (finding evidence that employer deviated from its established disciplinary program and used insurance director rather than personnel director to fire employee sufficient to create fact issue for jury on retaliatory discharge claim based on filing of workers' compensation claim).
Finally, Brown points to evidence that the District accommodated other impaired employees but refused to accommodate her. We are not convinced this fact bears on her retaliatory discharge claim, given Brown's inability to perform her custodial job. Cf. Davenport v. City of Des Moines, 430 N.W.2d 405, 407 (Iowa 1988) (stating employee's loss of driver's license prevented him from performing one of requirements of his job description and precluded recovery on retaliatory discharge claim).
We conclude that the District was entitled to judgment as a matter of law on Brown's retaliatory discharge claim.
V. Disposition
We affirm the trial court's grant of summary judgment in favor of the District. We find it unnecessary to address the remaining issues raised by the parties.