EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. VALU MERCHANDISERS

Full title: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. VALU MERCHANDISERS…

Court: United States District Court, D. Kansas

Date published: Aug 9, 2002

No. 01-2224-DJW (D. Kan. Aug. 9, 2002)

Opinion

No. 01-2224-DJW

August 9, 2002

MEMORANDUM AND ORDER

DAVID J. WAXSE, United States Magistrate Judge

This is an action brought by Plaintiff Equal Employment Opportunity Commission ("Plaintiff") against Defendant Valu Merchandisers Company ("Defendant" or "VMC") for employment discrimination against a former employee, Sheila Kennedy, under the Americans with Disabilities Act ("ADA"). The matter currently is before the Court on Defendant's Motion for Summary Judgment (doc. 49). For the reasons stated below, Defendant's Motion will be denied.

FACTS

The following facts are either uncontroverted or related in the light most favorable to Plaintiff, the nonmoving party.

• VMC is a wholesale distributor of non-food items such as health and beauty care products, general merchandise and seasonal products which are sold to retailers across a multi-state area.

• VMC hired Sheila Kennedy ("Kennedy") on July 27, 1996 as an Order Selector.

• Pursuant to Defendant's Position Description, an "Order Selector" fills orders by hand and then repacks the products into a "tote."

• One of the physical requirements of an "Order Selector" is to lift totes weighing at least 10 pounds, with some rather heavy. The company's formal Position Description sets forth physical requirements for the Order Selector job as "occasionally lifting 10 to 75 pounds from floor to chest."

• On January 21, 1997, Kennedy received medical treatment for pain associated with her right wrist. Documentation of this medical treatment states the injury was caused when a tote slipped out of Kennedy's grasp and jerked Kennedy's wrist.

• During the month of February 1997, Kennedy received treatment for the pain in her right wrist and was diagnosed as follows:

• February 3, 1997 — Diagnosed with "probable carpal tunnel syndrome" in right wrist. Authorized to return to work immediately with the following restrictions:

• no exposure to cold;

• no work requiring repetitive bending of the right wrist;

• limited use of the right wrist;

• continued use of splint;

• lifting restricted to 15 pounds or less; and

• reaching limited to shoulder level.

• February 12, 1997 — Diagnosed with median nerve compression/carpal tunnel syndrome in right wrist. Authorized to return to work after five days with the following restrictions:

• no exposure to cold;

• no work requiring repetitive bending of the right wrist; and

• limited use of the right wrist.

• February 19, 1997 — Diagnosed with carpal tunnel syndrome in right hand. Authorized to return to work after five days with use of wrist splints.

• February 26, 1997 — Diagnosed with carpal tunnel syndrome in right wrist. Authorized to return to work after five days with the following restrictions:

• no work requiring repetitive bending of the right wrist;

• continued use of wrist restraint; and

• lifting restricted to 10 pounds or less.

• On March 5, 1997, Kennedy was seen by an orthopedic surgeon, who notes Kennedy "would benefit from a right carpal tunnel release." Kennedy was authorized to return to work with existing light duty conditions (no work requiring repetitive bending of the right wrist, continued use of wrist restraint and lifting restricted to 10 pounds or less).

• On April 9, 1997, Kennedy had surgery for carpal tunnel syndrome.

• Kennedy's medical provider originally expected Kennedy to return to full work activities after one week of splints and three to four weeks of restricted activities post-surgery.

• Kennedy was authorized to return to work as of April 16, 1997, with the following restrictions:

• use of wrist splint; and

• lifting with right arm restricted to 2-3 pounds.

• After being seen on May 7, 1997, Kennedy's work restrictions were revised to

• use of wrist splint; and

• lifting with right arm restricted to 5 pounds.

• After being seen on July 2, 1997, Kennedy's work restrictions were revised to

• use of wrist brace; and

• lifting with right arm restricted to 10-15 pounds.

• After being seen on July 23, 1997, Kennedy's work restrictions were revised to

• use of wrist brace; and

• lifting, pushing and pulling with right arm restricted to 5 pounds.

• After being seen on July 30, 1997, Kennedy's work restrictions were revised to

a. use of wrist brace; and

b. lifting, pushing and pulling with right arm restricted to 5-8 pounds.

• Defendant consistently has been kept informed about Kennedy's lifting restrictions.

• Beyond the permanent five to eight pound lifting, pushing and pulling restriction imposed by her medical provider, Kennedy also describes the following specific limitations on her day-to-day activities: her ability to cook meals, wash dishes, clean her house, shop for groceries, drive a car, care for her grandchild, wash and style her hair, open door knobs, button shirts, needlepoint, engage in intimate relations with her spouse and bowl.¹

• On October 3, 1997, Kennedy's condition was described by her medical provider as follows:

[Kennedy] still reports no essential changes from before and states that her main problem is that of weakness in this [right] hand. . . . She is otherwise able to use the hand except for the strength in this hand. . . . We recommend no lifting pushing, or pulling greater than 5-8 pounds with [the right] hand for the next several months. We do feel, however, that [Kennedy] has reached the maximum point of medical improvement. . . . We feel that the work restrictions would be for two months. At that time, we would like to have [Kennedy] return to see us. If she is improved, a lifting of the restrictions would be planned or further evaluations will be done.

• In August and September 1997, Kennedy bid on the following three jobs at VMC, each of which would have been lateral positions and none of which required lifting outside the scope of Kennedy's medical restrictions:

1 See Exhibit 1 to Plaintiff's Opposition Brief (doc. 53), Kennedy Aff. at ¶¶ 3, 4, 13, 17 and 18; Exhibit 3 to Plaintiff's Opposition Brief (doc. 53), Kennedy Depo. at pp. 58-59, 60, 62, 64 and 71.

• Inventory/Slot Maintenance

• Warehouse Supervisor Clerk

• Routing Systems Clerk

• All of Kennedy's bids for vacant positions were submitted pursuant to VMC policy.

• Pursuant to Defendant's HR Policy No. 13, job vacancies are awarded "on the basis of the qualifications of the bidders and their reasonable ability to perform the job. Where qualifications are considered equal, the job will be awarded to the most senior bidder."

• Defendant's HR Policy No. 13 also states that "there may be instances where business necessity requires that [the] policy be waived. In such instances, prior approval of the Director of Human Resources and the President is required."

• On August 20, 1997, Kennedy bid on the Inventory Control/Slot Maintenance position.

• The position of Inventory Control/Slot Maintenance was awarded to Maggie Griffith.

• Maggie Griffith had more seniority than Kennedy.

• On September 5, 1997, Kennedy bid on the position of Warehouse Supervisor Clerk.

• The position of Warehouse Supervisor Clerk was awarded to Jenny Evans.

• Jenny Evans had more seniority than Sheila Kennedy.

• On September 19, 1997, Kennedy bid on the position of Routing Systems Clerk.

• The position of Routing Systems was awarded to Michelle Welch.

• Michelle Welch had more seniority than Kennedy.

• In January 1998, Kennedy was diagnosed by her medical provider as follows:

Kennedy, on the basis of her right carpal tunnel and subsequent release with resultant hyper sensitivity, has a 20% permanent partial impairment to the involved upper extremity. Her permanent work restrictions would be no lifting greater than 5 to 7 pounds with either hand and avoidance of excessive repetitiveness.

• After the permanent restrictions were imposed, Kennedy was asked to call in to VMC to check on the availability of work within her medical restrictions.

• On March 16, 1998, Kennedy received the following letter from VMC:

We have reviewed your employment situation and advise you at this time we cannot continue to retain you as an employee for Valu Merchandisers Company. Permanent work restrictions issued by Dr. E. Bruce Toby [on] January 12, 1998 prevent you from performing the essential functions of your former job.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law."² In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.³ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁴ An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."⁵

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁶ In attempting to meet that standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.⁷

6 Id . at 670-71.

7 Id . at 671 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁸ Rather, the nonmoving party must "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."⁹ "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."¹⁰

8 Anderson , 477 U.S. at 256.

9 Adler , 144 F.3d at 671.

10 Id .

The Court notes summary judgment is not a "disfavored procedural shortcut" but an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹¹

11 Celotex , 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

DISCUSSION

Defendant moves for summary judgment on grounds that it did not discriminate against Kennedy on the basis of a disability. First, Defendant argues Kennedy does not have a disability as defined by the ADA. Second, Defendant argues that, even if Kennedy was disabled, it did not fail to reasonably accommodate such disability. Finally, Defendant argues that the decision to terminate Kennedy's employment was not based on the fact that she allegedly was disabled.

The ADA prohibits a covered entity from discriminating against a "qualified individual with a disability" because of the individual's disability with respect to terms, conditions, and privileges of employment.¹² The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." ¹³

12 42 U.S.C. § 12112(a).

13 Pack v. Kmart Corp ., 166 F.3d 1300, 1302 (10th Cir.), cert. denied , 528 U.S. 811 (1999) (citing 42 U.S.C. § 12111(8)).

To establish a prima facie case under the ADA, a plaintiff must prove: (1) the individual at issue is a disabled person as defined by the ADA; (2) the individual at issue is qualified, with or without reasonable accommodation to perform the essential functions of the job held or desired; and (3) the employer discriminated against the individual at issue because of her disability.¹⁴

14 Doyal v. Oklahoma Heart, Inc ., 213 F.3d 492, 495 (10th Cir. 2000).

If the plaintiff establishes a prima facie case, the burden shifts to defendant to offer a legitimate, nondiscriminatory reason for its employment decisions.¹⁵ If defendant comes forward with a nondiscriminatory reason for its actions, the burden then shifts back to plaintiff to show "a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual — i.e., unworthy of belief." ¹⁶

15 Randle v. City of Aurora , 69 F.3d 441, 451 (10th Cir. 1995) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03 (1973); EEOC v. Flasher Co ., 986 F.2d 1312, 1317-19 (10th Cir. 1992)).

16 Randle , 69 F.3d at 451.

The Prima Facie Case "Disability" — Prong One of a Prima Facie Case

The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such an impairment or being regarded as having such an impairment.¹⁷ Plaintiff maintains Kennedy's "disability" falls under the first definition: she has "a physical or mental impairment that substantially limits one or more of the major life activities." ¹⁸

Analysis of whether such a "disability" exists proceeds in three steps.¹⁹ First, Kennedy must have a recognized "impairment." ²⁰ Second, Plaintiff must identify one or more appropriate "major life activities." ²¹ Third, Plaintiff must show that the impairment "substantially limits" one or more of the major life activities.²² Plaintiff argues Kennedy is disabled due to her carpal tunnel syndrome, an impairment that substantially limits her in the major life activity of lifting.

19 Bragdon v. Abbott , 524 U.S. 624, 631 (1998); Bristol v. Board of County Comm'rs of Clear Creek , 281 F.3d 1148, 1156 (10th Cir. 2002).

20 Id .

21 Id .

22 Id .

Impairment

Defendant contends that during the relevant time periods of her employment, Kennedy's impairment was temporary and therefore did not qualify as a disability under the ADA. The Court disagrees. Plaintiff has presented evidence establishing that her medical provider believed in March 1997 that it would take only three to four weeks for Kennedy's carpal tunnel syndrome to heal after her scheduled surgery in April 1997. By late July 1997 — almost four months after Kennedy's surgery and one month prior to Kennedy bidding on the three lateral vacant positions — Kennedy still was unable to lift more than minimal weight. Thus, the Court finds Defendant knew when Kennedy bid on the vacant jobs and when Defendant terminated Kennedy that Kennedy's impairment was not just temporary. Accordingly, for purposes of this Motion, Kennedy's carpal tunnel syndrome amounts to a "permanent or long-term" physical impairment.²³

23 See Toyota Motor Mfg. v. Williams , 122 S.Ct. 681, 691-92 (2002) (recognizing carpal tunnel as an impairment and stating that an impairment's impact must be "permanent or long-term").

Major Life Activity

Defendant argues lifting is not a major life activity because it is not specifically identified as such in the regulations interpreting the Rehabilitation Act or in the Department of Justice regulations that were promulgated to interpret the public services provisions of the ADA. The Court, however, is not persuaded by Defendant's argument.

As a preliminary matter, the United States Supreme Court has stated that the major life activities identified in the Rehabilitation Act regulations are simply illustrative and do not constitute an exhaustive list of major life activities.²⁴ More importantly, the Tenth Circuit Court of Appeals specifically has found lifting — regardless of whether the lifting includes grasping — to be a major life activity.²⁵

24 See Bragdon v. Abbott , 524 U.S. 624, 638-39 (1998) ("Rather than enunciating a general principle for determining what is and is not a major life activity, the Rehabilitation Act regulations instead provide a representative list. . . . [T]he list is illustrative, not exhaustive.").

25 See 29 C.F.R. App. § 1630.2(i) (other major life activities include, but are not limited to, sitting, standing, lifting , reaching. . . .") (emphasis added); see, also , Lowe v. Angelo's Italian Foods, Inc ., 87 F.3d 1170, 1174 (10th Cir. 1996) (finding lifting to be a major life activity).

Substantially Limited

Given Plaintiff has established the first two prongs of being disabled, the relevant question now presented is whether Kennedy's carpal tunnel syndrome substantially limits Kennedy in the major life activity of lifting. The term "substantially limited" is defined by the regulations as follows:

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.²⁶

26 29 C.F.R. § 1630.2(j)

The Tenth Circuit Court of Appeals recently declared this definition does not mean Plaintiff must — as a matter of law — produce specific evidence comparing an impaired lifting capability to the lifting capability of the average person in order to defeat summary judgment on this issue.²⁷ In a case similar to the one here, the Tenth Circuit Court of Appeals found a fifteen-pound lifting restriction was substantially limiting on its face, and thus the plaintiff in that case presented sufficient evidence to allow a reasonable fact finder to conclude she was substantially limited in the major life activity of lifting.²⁸ This case stands for the proposition that, in the Tenth Circuit, comparative evidence is not required as a matter of law to withstand a motion for summary judgment where the impairment appears substantially limiting on it face.²⁹

27 See Lowe v. Angelo's Italian Foods, Inc ., 87 F.3d at 1174 (concluding that if a plaintiff presents sufficient evidence to allow a reasonable fact finder to conclude that an individual is substantially limited in the major life activity of lifting, evidence specifically comparing such individual's own lifting capability to the average person to withstand defendant's summary judgment motion).

28 Id . at 1172-74 (where plaintiff brought a claim against her former employer alleging that she had been discharged in violation of the ADA because of a medical condition that forced her to adhere to a stringent, permanent fifteen-pound lifting restriction).

29 Lusk v. Ryder Integrated Logistics , 238 F.3d 1237, 1240 (10th Cir. 2001).

In determining whether an individual is substantially limited in a major life activity, the regulations set forth the following factors for consideration:

• The nature and severity of the impairment;

• The duration or expected duration of the impairment; and

• The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.³⁰

Plaintiff asserts Kennedy's carpal tunnel syndrome substantially limits her in the major life activity of lifting. With respect to the impact on an individual's ability to perform manual tasks related to lifting, the manual tasks in question must be long term and central to daily life.³¹ "If each of the tasks included in the major life activity of performing manual tasks does not independently qualify as a major life activity, then together they must do so." ³² For example, "household chores, bathing, and brushing one's teeth are among the types of manual tasks of central importance to people's daily lives." ³³

30 29 C.F.R. § 1630.2(j)(2).

31 Toyota Motor Manufacturing, Kentucky, Inc. v. Williams , 122 S.Ct. 681, 691 (January 8, 2002).

32 Id .

33 Id . at 693.

Based on the diagnosis of her medical provider, the impact of Kennedy's impairment likely will remain for the rest of her life. Thus, the only inquiry is whether, in the aggregate, Kennedy's inability to perform various tasks would constitute a severe restriction on activities that are of central importance to most people's daily lives.

The Court finds the evidence presented by Plaintiff in this case is sufficient to allow a reasonable fact finder to conclude that Kennedy's impairment is substantially limiting on its face. Kennedy essentially has remained unable to lift more than about five to eight pounds with her right hand since her carpal tunnel surgery in April 1997. It is undisputed that Defendant consistently has been kept informed about Kennedy's lifting restrictions. Beyond the permanent five to eight pound lifting, pushing and pulling restriction imposed by her medical provider, Kennedy also describes specific limitations on her day-to-day activities: her ability to cook meals, wash dishes, clean her house, shop for groceries, drive a car, care for her grandchild, wash and style her hair, open door knobs, button shirts, needlepoint, engage in intimate relations with her spouse and bowl. These facts show Kennedy's lifting limitations affected virtually every party of her life, including household chores, family and marital life, personal care and recreational activities.

In Toyota Motor , the Court considered a person whose medical condition caused her to "avoid sweeping, to quit dancing, to occasionally seek help dressing, and to reduce how often she played with her children, gardened, and drove long distances."³⁴ Based on such limitations, the United States Supreme Court concluded that the existence or non-existence of a disability could not be determined as a matter of law. So it is with the present case. The Court finds the facts presented regarding the nature, severity and duration of Kennedy's impairment could lead a reasonable jury to conclude that Kennedy was, in fact, permanently and substantially limited in the major life activity of lifting; thus, there exists a genuine issue of material fact that precludes summary judgment on this issue.

34 Id . at 694.

Qualified to Perform the Essential Functions of the Position, With or Without Reasonable Accommodation — Prong Two of a Prima Facie Case

Although a "qualified individual with a disability" has to be someone who can perform the essential functions of a job, that inquiry is not limited to the employee's existing job.³⁵ Rather, the plain language of the statute includes an employee who has the ability to do other jobs within the company that such disabled employee "desires."³⁶

35 Smith v. Midland Brake , 180 F.3d 1154, 1175-76, 1999 WL 387498, *15-16 (10th Cir. June 14, 1999) (citing 42 U.S.C. § 12111(8)).

36 Id .

Here, the parties agree that no accommodation exists to enable Kennedy to perform the essential job duties of the Order Selector position — a job that involves substantial and repetitive lifting. Thus, the Court will turn to Kennedy's requests for reassignment to a vacant position.

In August and September 1997, Kennedy bid on the following three jobs at VMC, each of which would have been lateral positions and none of which required lifting outside the scope of Kennedy's restrictions: (1) Inventory/Slot Maintenance; (2) Warehouse Supervisor Clerk; and (3) Routing Systems Clerk. Plaintiff maintains awarding her one of these lateral positions was a reasonable accommodation to her disability. Defendant disagrees, contending Kennedy's requested accommodations were unreasonable as a matter of law because it would have required Defendant to violate VMC Human Resources Policy No. 13, which provides that job vacancies are awarded "on the basis of the qualifications of the bidders and their reasonable ability to perform the job. Where qualifications are considered equal, the job will be awarded to the most senior bidder." Defendant argues that because the positions for which Kennedy bid were subject to a seniority system, hiring Kennedy into the position and passing over similarly qualified more senior employees is a blatant violation of Defendant's own employment policies.

As noted above, the ADA requires an employer to make reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability.³⁷ And, Defendant is correct that this provision does not require an employer to provide an accommodation that would violate a bona fide seniority system.³⁸

37 42 U.S.C. § 12112(b)(5)(A).

38 See, e.g., U.S. Airways, Inc. v. Barnett , 122 S.Ct. 1516, 1519 (2002) ("[T]o show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not 'reasonable.'"); Aldrich v. Boeing Co ., 146 F.3d 1265, 1272 n. 5 (10th Cir. 1998), cert. denied , 526 U.S. 1144 (1999) ("[H]ad Boeing transferred Aldrich to any of the last three disputed jobs . . . it would have violated the seniority provisions of the collective bargaining agreement."); Milton v. Scrivner, Inc ., 53 F.3d 1118, 1125 (10th Cir. 1995) ("[P]laintiffs' collective bargaining agreement prohibits their transfer to any other job because plaintiffs lack the requisite seniority.").

Here, however, the Court cannot find as a matter of law that Defendant has a bona fide seniority system. The stated objective of Defendant's job selection policies are to "ensure that interested qualified persons are considered when a job vacancy occurs" and jobs are awarded "on the basis of the qualifications of the bidders and their reasonable ability to perform the job." Seniority is considered only if the bidders' qualifications are completely equal. Thus, Defendant's policies authorize Defendant to completely ignore seniority and make a decision solely based on qualifications.

Moreover, Defendant's policies also provide that Defendant may completely ignore the stated procedure at its discretion if the Director of Human Resources and the company President determine the policy should be waived because of "business necessity." A seniority system that permits complete disregard of the seniority of an applicant at the sole discretion of the company simply does qualify as a "bona fide" seniority system. Given the flexibility of Defendant's seniority system, then, it would be possible for a jury to conclude Defendant had the ability to reasonably accommodate Kennedy.

c. Discriminatory Action Based on Disability — Prong Three of a Prima Facie Case

For this third prong, Plaintiff must establish a genuine question of fact as to whether Defendant terminated or took adverse employment action against Kennedy "under circumstances which give rise to an inference that the termination [or other action] was based on . . . her disability.³⁹ Because Defendant admittedly terminated Kennedy because of her lifting restrictions, the Court concludes Plaintiff sufficiently has established a question of fact as to whether Kennedy was terminated based on her disability. The lifting restrictions flow from carpal tunnel syndrome, which also gives rise to Kennedy's disability. The termination, at least for summary judgment purposes, was based on Kennedy's disability. As a result, Defendant is not entitled to summary judgment on the ground that Plaintiff has failed to state a prima facie case of disability discrimination under the ADA.

39 Morgan v. Hilti, Inc ., 108 F.3d 1319, 1323 (10th Cir. 1997).

Legitimate, Non-Discriminatory Factors

By establishing its prima facie case, at least for summary judgment purposes, Plaintiff raises "a rebuttable presumption" of discriminatory intent.⁴⁰ Defendant, however, has the ability to rebut the presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment actions.⁴¹ Defendant asserts that its decision not to award the three lateral positions for which Kennedy bid was based on its legitimate non-discriminatory seniority policy for job placement. Moreover, Defendant asserts the decision to terminate Kennedy was based on legitimate, non-discriminatory factors because Kennedy was unable to perform the essential functions of her Order Selector job.

40 Ingels v. Thiokol Corp ., 42 F.3d 616, 621 (10th Cir. 1994).

41 McDonnell Douglas, 411 U.S. at 802.

Given Defendant's unfettered discretion in deciding whether to implement its seniority policy or waive it altogether, the Court is not persuaded that Defendant's employment decisions with respect to Kennedy were legitimate and non-discriminatory.

Accordingly, it is hereby ordered that Defendant's Motion for Summary Judgment is denied.

IT IS SO ORDERED.