Opinion
No. C96-342 MJM
July 19, 2000
AMENDED ORDER
I Introduction
Plaintiff, Kimberly Brunko ("Brunko") filed the present lawsuit against her former employer, defendant, Mercy Hospital d/b/a/ Mercy Medical Center, Inc. ("Mercy") for alleged violations of the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Iowa Civil Rights Act, ("IRCA"), IOWA CODE Ch. 216, and Cedar Rapids Municipal Code, ("CRMC"), Ch. 69. Mercy moved for summary judgment as to all claims. The case was referred to the Honorable Magistrate Judge Zoss, pursuant to 28 U.S.C. § 636(b)(1)(B), who issued a Report and Recommendation, recommending that Mercy's motion for summary judgment should be denied. After objections to the report and recommendation were filed by Mercy, this Court reviewed Judge Zoss' report, and the objections filed thereto, and adopted the report in full.
The complaint also included a tort claim that was later withdrawn by Brunko.
The initial decision denying summary judgment in this case was a close question. The Court ultimately came down on the side of denying summary judgment. Because the position of the parties is fairly debatable, and the facts are sufficiently in dispute, the Court concluded the case should go to a jury and not be decided on summary judgment.
Much of the discussion in this Court's initial order denying summary judgment centered on the issue of responsibility for any breakdown in the interactive process. The evidence showed that Mercy had made substantial efforts to accommodate Brunko. Mercy hired a vocational rehabilitation specialist and reviewed a number of jobs within the hospital that might be modified to accommodate Brunko's lifting restriction. Ultimately, Mercy identified three jobs which it believed might be modified to meet Brunko's lifting restriction. A letter was then sent by the Personnel Department at Mercy to Brunko's treating physician, together with the job description for each job. The letter indicated that Mercy was considering placing Brunko in each of those positions and it stated that the job requirements would be modified to meet Brunko's lifting restriction, and asked if the doctor believed Brunko could perform any of those job with accommodation.
One of the jobs was a nursing position in the Pediatrics Department. The doctor responded that he felt Brunko could do two of the positions but it would not be safe for either Brunko or patients for her to be employed in the pediatric nursing position. Brunko's worker's compensation attorney was supplied with a copy of the treating physician's letter, with an indication that Mercy was continuing to attempt to accommodate Brunko either in a position at Mercy, or in its continuing efforts to find her another nursing position outside Mercy. Brunko then voluntarily resigned and took a nursing position with another entity.
Those facts alone would normally result in granting summary judgment on the basis that Mercy had made a reasonable effort to accommodate Brunko. However, summary judgment was ultimately denied because of a fact dispute concerning statements and testimony given by Mercy's head of Human Resources Department, John Engelby. Engelby testified that any efforts to accommodate Brunko were made without his permission and would have been against company policy. He remained adamant that Brunko could not be employed in a nursing position at Mercy with a 40 pound lifting restriction and that there was no accommodation that could be made to accommodate the lifting restriction in any nursing position within Mercy. It was his position that the 75 lb. lifting restriction was a safety issue and any attempts to accommodate that restriction in a nursing position were without hospital authority. However, there was no evidence that any attempt was made to substantiate whether the 75 lb. lifting restriction was in fact a safety issue (in fact, the evidence shows that shortly after Brunko terminated her position with Mercy, the 75 lb. lifting requirement for nurses was changed to occasional lifting of 50 lbs.).
The Court ultimately concluded that Engelby's adamant refusal to even consider accommodation of Brunko in a nursing position created a fact dispute as to how sincere Mercy was about its efforts to accommodate her. As indicated, the decision was a very close one, since there was evidence the individuals in the Personnel Department, other than Engelby, did make substantial efforts to accommodate Brunko. The efforts to accommodate Brunko in a nursing position ultimately proved futile based upon the medical assessment by Brunko's own doctor. Although the Court did ultimately deny summary judgment on this issue, it certainly does present a viable alternative argument as to why summary judgment should be granted in this case.
Subsequently, this Court came across two Eighth Circuit opinions, Snow v. Ridgeview Med. Ctr., 128 F.3d 1201 (8th Cir. 1997) and Gutridge v. Clure, 153 F.3d 898 (8th Cir. 1998), cert denied, 119 S.Ct. 1758 (1999), which analyze lifting as a disability under the ADA. Thereupon, the Court issued an Order requesting that the parties submit additional briefing on the issue of whether Brunko is actually disabled within the meaning of the ADA; addressing in particular the aforementioned Eighth Circuit case law. The Court is now in receipt of the party's supplemental briefing.
II Discussion A. Legal Definition of Disability within the Meaning of the ADA
When bringing a claim of discrimination pursuant to the ADA the plaintiff's first prima facie burden is to establish that she is indeed disabled within the meaning of the ADA. There are three ways in which a plaintiff may prove she is disabled: (1) that she has a disability defined under the ADA; (2) suffers from a history of such a disability; or (3) is perceived by her employer as having such a disability. See 42 U.S.C. § 12102(2)(A)-(C). In the present suit, Brunko alleges that she has an actual disability as defined by the ADA, and that she is perceived by Mercy as having such a disability.
"Iowa courts look to the ADA, its regulatory interpretations, and its caselaw in construing a disability claim under the IRCA." Berg v. Norand Corp., 169 F.3d 1140, 1145 n. 5 (8th Cir.), cert denied, 1205 S.Ct. 174 (1999). Likewise, Iowa law requires that local ordinances be consistent with state statues. See Goodell v. Humboldt County, 575 N.W.2d 486, 501 (Iowa 1998). For these reasons, the Court's findings regarding Brunko's ADA claim will apply equally to her claims pursuant to the IRCA and the CRMC.
Disability is defined as a physical or mental impairment that substantially limits one or more major life activities. See 42 U.S.C. § 12102(2)(A)-(C). The accompanying federal regulations define major life activities as including "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i); See Aucutt v. Six Flags Over America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996). Sitting, standing, lifting, and reaching are also considered major life activities under the regulations. 29 C.F.R. § 1630.2(i).
"'[S]ubstantially limit' a major life activity means to render an individual unable to perform a basic function that the average person in the general population can perform, or to significantly restrict the condition, manner, or duration under which an individual can perform a particular major life activity as compared to an average person in the general population." Snow, 128 F.3d at 1207, quoting, § 29 C.F.R. Pt. 1630, App. 1630.2(j). When making the determination of whether a person is substantially limited in a major life activity courts should consider: "(1) the nature and severity of the impairment, (2) its duration or anticipated duration, and (3) its long-term impact." Id. at 1207; See also Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949 (8th Cir. 1999).
A substantial limitation in the major life activity of working, as is the claim in the present case, cannot be shown by one's inability to perform a single, particular job. See § 1630.2(i). "Rather, the impairment must prevent the [plaintiff] from performing an entire class or broad range of jobs as compared to the average person possessing comparable training, skills, and abilities." Snow, 128 F.3d at 1206-07, quoting Aucutt, 85 F.3d at 1319, ( citing § 29 C.F.R. § 1630.2(j)(3)(i)).
B. Snow and Gutridge
As stated earlier, the Court is particularly interested in how the Eighth Circuit opinions of Snow and Gutridge affect Brunko's claim of actual disability. In the first of the two opinions, Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, Snow, a laboratory and radiological technician, suffered from a work-related back injury for which she underwent cervical fusion. Id. at 1204. Many years after the initial incident she still experienced pain and was ultimately given a permanent lifting restriction by her physician, which prohibited her from lifting more than twenty-five (25) pounds, lifting patients and pushing heavy equipment. Id. After a change in corporate structure, the defendant terminated Snow's employment contending her lack of certification to perform mammographies and her lifting restriction prevented her from fulfilling the necessary duties of her job. Id. at 1205.
Snow maintained she was disabled within the meaning of the ADA because "her physical impairment 'affect[ed] such activities as performing manual tasks, hearing, lifting and working.'" Id. at 1207. First the court rejected her argument that her lifting restriction constituted a disability within the meaning of the ADA stating "[w]hile lifting is noted under the regulations as a major life activity, a general lifting restriction imposed by a physician, without more, is insufficient to constitute a disability within the meaning of the ADA." Id., citing, Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617 (8th Cir. 1997) (finding evidence that impairment limits work-related activities such as lifting does not demonstrate triable dispute regarding substantial limitation on major life activity); also citing, Aucutt, 85 F.3d at 1319 (finding twenty-five pound lifting restriction, without more, does not constitute significant restriction on ability to perform major life activities). Similarly, the court was unconvinced that Snow's physical impairment substantially limited her ability to work where she proffered no evidence that she was "precluded from performing a class or broad range of jobs as compared to average persons in the general population." Snow, 128 F.3d at 1207.
In Gutridge v. Clure, 153 F.3d 898, the Eighth Circuit revisited the issue of lifting as a disability within the meaning of the ADA. In that case, Gutridge was a computer technician charged with installation, repair, and service of computer equipment, as well as the transportation of computer equipment between the customer site and the shop, and the transport of objects on site such as desks, shelves, and chairs. Id. at 900. Gutridge injured his wrist while performing a job-related duty; he was diagnosed with cubital tunnel syndrome and underwent 5 subsequent surgeries to his left and right wrist, and his elbows. Id. Initially, Gutridge was assigned to a temporary position throughout the duration of his surgeries. Id. However, upon returning to work with a permanent lifting restriction which specified he may lift forty-five pounds 5% of the work day, thirty-five pounds 33% of the work day, twenty pounds 20% of the work day, and ten pounds consistently, Gutridge was terminated. Id. The defendant maintained the restriction prevented Gutridge from being able to fully accomplish the tasks necessary to perform his job. Id.
Like Snow, Gutridge maintained he was disabled within the meaning of the ADA because his impairment acted to substantially limit him in the major life activities of lifting and working . Id. at 900-01. As for the lifting, the Eighth Circuit again recognized that the "EEOC regulations include lifting as an example of a major life activity." See § 29 C.F.R. Pt. 1630, App. 1630.2(i). Yet, the court went on to state that a "permanent lifting restriction of not more than 45 pounds . . . . neither renders him '[u]nable to perform' nor '[s]ignificantly restrict[s]' his activity of lifting. § 29 C.F.R. § 1630.2(j)(1)(i), (ii)." Quoting Snow, the court reiterated that "[w]hile lifting is noted under the regulations as a major life activity, a general lifting restriction imposed by a physician, without more, is insufficient to constitute a disability within the meaning of the ADA." Id., quoting, Snow, 128 F.3d at 1207.
The court also rejected Gutridge's contention that his permanent lifting restriction substantially limited his ability to work. Id. at 901. "'Substantially limits' with respect to the major life activity of working," the court stated "means 'significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." Id., citing § 1630.2(j)(3)(i). "The inability to perform a single, particular job does not constitute a substantial limitation." Id. citing § 1630.2(j)(3)(i). While Gutridge's carpel and cubital tunnel syndromes left him unable to perform the job at defendant's company, given the nature its business, he was still able to function as a computer repair technician for other employers who either do not require lifting as part of their job duties or can provide assistance. See Gutridge, 153 F.3d at 901. Particularly persuaded by the fact that Gutridge had in fact found such employment, the court concluded that Gutridge "failed to present evidence that he is substantially limited in the major life activity of working." Id.
C. Brunko's Claim of Disability
In the present suit, Brunko contends that she is disabled within the meaning of the ADA because her lifting restriction of 40 pounds substantially limits her ability to work. Brunko attempts to distinguish her claim from that of Gutridge and Snow by arguing she has put forth more evidence than simply her lifting restriction to support a finding that she is substantially limited in the life activity of working. To this end, Brunko relies heavily on the written opinion and deposition testimony of vocational rehabilitation expert, Daniel Rappucci. Brunko contends that the expert opinion generates a fact dispute with regard to whether she is disabled.
When reviewing evidence regarding whether a claimant is substantially limited in the major life activity of work, factors often considered by the Courts include: "the number and type of jobs from which the impaired individual is disqualified; the geographical area to which the individual has reasonable access; and the individual's job training, experience, and expectations." Helfter, 115 F.3d at 617, citing § 29 C.F.R. § 1630.2(j)(3)(ii). The Court has reviewed Rappucci's report and deposition testimony with these factors in mind and finds it insufficient to generate a question of fact as to whether Brunko is limited in her ability to work. At the outset, the Court notes that much of Rappucci's opinion appears to be based on Brunko's "perceived" disability claim rather than her actual disability. See, e.g., Rappucci Opinion at 12, 13, and 15 (stating "[t]he following is a representative sample of positions from which Ms. Brunko would have been disqualified has [sic] she been disabled to the extend [sic] perceived by her employer. . ."; also stating "[t]he above listing references types of jobs within the humanitarian job class . . . from which Ms. Brunko would be disqualified based on her employer's perception of her physical abilities."; stating also "the perception that Ms. Brunko did not physically qualify to work as a nurse needlessly imposed a loss of vocational stability. . ."). In those few places where Rappucci does address her actual disability claim, he does not do so with specificity, but rather, in some instances, simply adopts Brunko's own assessment of her employability. See, e.g., Rappucci's Opinion at 11 (adopting Brunko's belief that she was physically able to perform only 56% of all nursing jobs at Mercy without accommodation); Rappucci's Deposition at 67-72 (adopting Brunko's contention that she could not work in 9 out 32 departments at Mercy without accommodation). Rappucci must do more than make conclusory statements about Brunko's alleged disability. See, e.g., Helfter, 115 F.3d at 616 (conclusory testimony regarding limitation an impairment places on major life activity standing alone is insufficient to defeat motion for summary judgment on disability discrimination claim). He should address the employability of Brunko in the relevant geographic area taking into account her skill, training, and experience, and specify what jobs Brunko would be precluded from due to her actual, versus perceived, disability. See, e.g., Zarzycki v. United Technologies, Corp., 30 F. Supp.2d 283, 291 (D.Conn. 1998) (finding vocational expert's opinion, based on the analysis of job titles alone, "too general to be of any use to a jury" and insufficient to generate an issue of fact as to whether claimant was substantially limited in her ability to work).
The Court is unconvinced the evidence offered by Brunko is qualitatively different from that considered by the Eighth Circuit in Snow and Gutridge. Indeed, as in Gutridge, Brunko has been able to find six jobs in the nursing field since her termination from Mercy. This contradicts any notion that she is somehow precluded from holding a broad class of jobs due to her lifting restriction. See e.g., Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir.), cert denied, 120 S.Ct. 174 (1999) (having never been unemployed, court found plaintiff failed to show diabetes excluded her from broad range of jobs); Robinson v. Neodata Servs. Inc., 94 F.3d 499, 501-02 (8th Cir. 1996) (finding that permanent lifting restriction, which rendered plaintiff unable to perform primary function of her previous position, did not substantially limit her major life activity of working); Zirpel v. Toshiba America Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997) (finding insufficient evidence of substantial limitation in ability to work where plaintiff held three jobs immediately after being terminated, one very similar to that of defendant); see also, Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 726 (7th Cir. 1998) (finding insufficient evidence of substantial limitation in ability to work where plaintiff became employed immediately after termination in another school). Brunko contends that she was in fact accommodated in all those jobs and that her impairment must be viewed without the accommodation. While the record does seem to support this contention as to her most recent job, there is no evidence to support the contention that she was accommodated in the other five positions she held.
At best the record supports a contention that Brunko is substantially limited in a narrow range of jobs. This is insufficient to establish Brunko is substantially limited in the major life activity of work. See Gutridge, 153 F.3d at 900 (quoting 29 C.F.R. § 1630.2(j)(3)(1) as stating substantially limits requires showing that one is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes.") The Court finds the rulings of Gutridge and Snow controlling, and, as in those cases, finds Brunko has not proffered evidence from which a jury could reasonably infer she is substantially limited in the activity of working.
Brunko also attempts to establish she is perceived by Mercy as having a disability. In order to maintain this claim, Brunko must establish that Mercy perceived her as having "a physical or mental impairment that substantially limits one or more of the major life activities." Sutton v. United Airlines, 119 S.Ct. 2139, 2149 (1999). "There are two apparent ways in which individuals may fall within this statutory definition: (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." Id. at 2149-50 ; See also Murphy vs. United Parcel Service, Inc., 119 S.Ct. 2133, 2137 (1999) (noting that "person is 'regarded as' disabled within the meaning of the ADA if a covered entity mistakenly believes that person's actual, nonlimiting impairment substantially limits one or more major life activities."); Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (noting a person is "'regarded as having' an impairment that substantially limits major life activities when others treat that person as having a substantially limiting impairment.")
Brunko contends Mercy mistakenly believes that an actual, nonlimiting impairment substantially limits her ability to work. In making this claim, she relies predominately on the testimony of the head of the Human Resources Department, John Engelby. Engelby testified that he either made the decision or was responsible for the decision preventing Brunko from working as a staff registered nurse because of her 40 pound lifting restriction. See Engelby Deposition at 181-183, 220-227. This belief was grounded in clear documentation of Brunko's physical restrictions as supplied by her physician, Dr. Roberts. See id. at 183-85; Brunko Deposition at 43. Brunko alleges that her Dr. Roberts' recommendation was a result of false job descriptions provided to him by Mercy management personnel. However, as discussed in the Court's March Order, in a letter dated January 18, 1996, Mr. Novak, Brunko's attorney, conceded that Ms. Brunko was unable to perform the position of trauma nurse with or without accommodation and instead inquired into the reason accommodations could not be made to allow her to fill other staff nursing positions, such as a staff nurse for Pediatric or Obstetrics. See Doc. 70. Mercy replied in a letter dated January 19, 1996, in which it referred to Dr. Roberts' allegedly misled recommendation, and attached the same. See Doc. 53. Thus, even assuming Dr. Roberts' recommendation was premised on false information provided by Mercy, Brunko was made aware of Dr. Robert's misinformed recommendation and made no effort to reconcile the matter.
The Court does not believe there is a fact dispute as to whether Mercy provided false information. The letter to Dr. Roberts clearly stated: "We understand Kim's physical limitations to be: maximum lifting of 40 pounds and no repetitive bending or twisting. When you review the job requirements portion of the 3 enclosed job descriptions, you will see that some of the physical demands of these jobs, as they are usually performed, exceed Kim's restrictions. However, should she be the appropriate candidate for one of these positions, modifications or accommodations can be made." Dr. Roberts may have misinterpreted the letter, however, it appears clear to the Court that Mercy intended to convey to Dr. Roberts the information that the job descriptions could be modified to meet Brunko's lifting restriction.
When a court under goes an inquiry into whether a plaintiff has generated sufficient facts to show that she was perceived as being disabled, "[t]he focus is on the impairment's effect upon the attitudes of others." Wooten, 58 F.3d at 385. "This provision is intended to combat the effects of 'archaic attitudes,' erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities." Id., citing School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 285 (1987). Mercy's beliefs were not based in myth or archaic attitudes. At best, Mercy's beliefs were based on false or misleading information, some of which was provided to it from Brunko's own physician. This coupled with the undisputed fact that Mercy actively assisted Brunko in her pursuit for a nursing position, belies the contention that Mercy perceived her lifting restriction as "a substantially limiting impairment" to her ability to work. See Aucutt, 85 F.3d at 1319-20 (noting employer must regard the disability as "substantially limiting" a major life activity); Loeckle v. State Farm Automobile Ins. Co., 59 F. Supp.2d 838, 852 (N.D.Iowa 1999), aff'd, 210 F.3d 379 (8th Cir. 2000) (noting plaintiff must show employer perceived her medical conditions as substantially limiting major life activities).
The Court finds Brunko has failed to generate a genuine issue of fact as to whether Mercy perceived her to be substantially limited in her ability to work.
III Conclusion
For the reasons stated herein, this Court concludes that Brunko has failed to meet the initial element of her prima facie case; that is, that she is disabled within the meaning of the ADA.
ORDER
Accordingly, Defendant's motion for summary judgment is GRANTED.
Done and so ordered this 19th day of July, 2000.