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holding that recreational activities such as fishing competitively, bow hunting, mountain biking, weight lifting, and rollerblading are not major life activities.
Summary of this case from Barta v. Sears, Roebuck Co.Opinion
Case No. 98-1138 JAR
July 12, 2002
MEMORANDUM ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Sedgwick County, Kansas ("Sedgwick County") filed a Motion for Summary Judgment (Doc. 46) under Rule 56(e) of the Federal Rules of Civil Procedure on all of Plaintiff John Faroh's claims. Faroh appears before the Court pro se claiming he was terminated in violation of 42 U.S.C. § 12101, et seq.; the Americans with Disabilities Act of 1990 ("ADA"); and the Civil Rights Act of 1992, 42 U.S.C. § 1981(a). Faroh asserts a state law claim of retaliatory discharge and a federal claim under the Rehabilitation Act. For the reasons set forth below, Sedgwick County's Motion for Summary Judgment is granted on all of Faroh's claims.
I. Factual Background
The Court considers the following undisputed facts and views them in the light most favorable to Faroh. Immaterial facts, or those not supported by the record have been omitted.
In 1995, Faroh was employed full-time as an Equipment Operator II in the Public Works Department of Sedgwick County. His duties included handling heavy equipment and various types of heavy lifting.
On March 22, 1995, Faroh was removing snow fencing, as part of his work duties, when a fence post snapped off at ground level causing him to lose his balance and stumble backwards. Faroh felt a sharp pain in his back and his legs went numb. X-rays of his back showed no evidence of fracture, dislocation, or abnormality. Worker's compensation doctors diagnosed a lumbar strain and referred him to physical therapy. In August of 1995, Dr. Anthony Pollock scheduled Faroh for an MRI because Faroh's condition was still unresolved. The MRI showed no evidence of any abnormalities of his lumbar spine.
A functional capacity evaluation ("FCE") was performed to determine Faroh's physical limitations. The FCE revealed that he could not tolerate more than 22 minutes on the "Vibrasym (simulates vibration, clutch, breaking (sic), etc.)" without experiencing back pain. The FCE further revealed that Faroh could "lift 60lbs. to his waist, 40lbs. to shelf (67"), and [could carry] 60lbs. up two 10" steps safely." But Faroh's job required lifting "up to 100lbs. to waist on occasion, 80lbs to shelf, and carry 110lbs." Because Faroh's job requirements exceeded his physical abilities, the therapist found Faroh "would not be able to qualify in the employers (sic) demand level . . . needed for a heavy equipment operator."
On September 8, 1995, Faroh returned to work with restrictions that he could not lift more than 10 pounds constantly, 20 pounds frequently, and 50 pounds occasionally. Dr. George, Faroh's personal physician, issued Faroh a written restriction on October 3, 1995, that he could only operate vehicles with suspension. Sedgwick County, in response to these new restrictions, sent Faroh to Dr. Pollock who assigned Faroh "permanent" work restrictions. Under Dr. Pollock's restrictions, Faroh could lift no more than 60 pounds, frequently lift no more than 30 pounds, constantly lift no more than 12 pounds, and would need a five minute break every 30 minutes when operating machines that produced significant vibration.
In accordance with Sedgwick County policy, Faroh was given a leave of absence that could not extend for more than eight months. Under the policy, if Faroh could not return to work after the eight months of leave, he would be terminated. On November 8, 1995, Faroh received a letter from the County Commissioners stating they anticipated his return on July 6, 1996, and that if he did not return on this date he would be terminated. Faroh filed a disability discrimination charge with the Equal Employment Opportunity Commission ("EEOC") and the Kansas Human Rights Commission ("KHRC") on March 22, 1996. In the charge he alleged he was terminated on October 23, 1995, and that he was the subject of discrimination from January 2, 1995, (two months before his injury) through his termination date.
On July 8, 1996, Faroh attempted to return to work, but before he could start working he was sent for a physical examination. The examining doctor issued the same work restrictions as Dr. Pollock. Faroh was not allowed to return to work with those restrictions and he remained on leave of absence.
Faroh was eventually terminated. The parties disagree about the actual termination date. Faroh contends he was terminated on October 23, 1995. Sedgwick County contends that, after a pretermination hearing held July 1, 1997, Faroh was notified by letter dated July 9, 1997, that his employment had been terminated because he could not perform the essential functions of his job.
Faroh claims work and recreation are the major life activities affected by his injury. Since his injury, Faroh does not water ski, weight lift, roller blade, or mountain bike as he did before the injury. Faroh maintained a health club membership for more than a year after his back injury and worked out using light weights as therapy for his back. Faroh also walked up to two miles at a time after his injury and used the "Stair Master" as part of his physical therapy. Additionally, he continued to work in his garden and do other yard type activities until 1999.
Additional facts may appear in this opinion as they pertain to Faroh's particular claims.
II. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." There is a "genuine" issue of material fact if a reasonable jury could return a verdict for the nonmoving party. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).
Id. at 251-52.
The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. This may be met by showing that there is a lack of evidence to support the nonmoving party's case. Once the moving party properly supports its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
See Anderson, 477 U.S. at 256.
Id.
See id.
The court must consider the record in the light most favorable to the nonmoving party.
See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. Analysis A. ADA Claim
The Americans with Disabilities Act of 1990 ("ADA") protects qualified individuals with disabilities from discrimination by certain employers if the discrimination is based on their disability. For the purposes of the ADA, a "qualified individual" is one, "who, with or without reasonable accommodation, can perform the essential functions of the employment position." To have a viable claim under the ADA, Faroh must establish that: (1) he has a disability; (2) he is qualified to perform the essential functions of their job with or without reasonable accommodations; and (3) his employer discriminated against him because of this disability. Because Faroh is unable to establish the first element of a viable ADA claim the Court will not analyze the remaining two elements.Under the ADA a "disability" is defined as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." In this instance, Faroh claims his back injury qualifies him as disabled within the meaning of the ADA.
42 U.S.C. § 12102(2); See Poindexter, 168 F.3d at 1230; Wicks v. Riley County Bd. of County Com'rs., 125 F. Supp.2d 1282, 1289 (D.Kan. 2000).
1) Defining Physical Disability
The court uses a three-step procedure to determine if an individual has a disability under the ADA. In the first stage of the analysis, the court determines whether the alleged disability is mental or physical. The court next determines whether the disability affects "major life" activities within the meaning of the ADA. Finally the court examines whether the disability "substantially limits" the major life activities claimed to be affected by the Faroh.
Wicks, 125 F. Supp.2d. at 1289 (citing Bragdon v. Abbott, 524 U.S. 624, 631-641 (1998)).
Id.
Id.
Id.
In this instance Faroh suffered a back injury. For the purposes of the ADA, a physical impairment includes physiological disorders affecting the musculoskeletal system. Faroh's back injury falls within this classification and is a physical impairment satisfying the first stage of the analysis. However, "[m]erely having an impairment does not make one disabled for purposes of the ADA" the Faroh must show that he is substantially limited in a major life activity.
See Barnard v. ADM Milling Co., Inc., 987 F. Supp. 1337, 1342 (D.Kan. 1997) (agreeing that lower back injury and supraspinatous muscle strain constitute physical impairments); Wicks, 125 F. Supp.2d. at 1289 (stating back injury is clearly a physical impairment affecting musculoskeletal system).
Toyota Motor Mfg., Kentucky, Inc., v. Williams, 534 U.S. 184, 193 (2002).
2) Major Life Activities
The court next examines the life activities affected by the disability and determines whether they are "major" life activities within the meaning of the ADA. Major life activities are those activities an "average person" has little or no difficulty performing. Faroh identified recreation and work as his major life activities.(a) Recreation
Recreation is not a "major life" activity. The Equal Employment Opportunity Commission ("EEOC") offered its definition of the term "major life activity" as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."
As the court noted in Barnard v. ADM Milling Co., recreational activities such as "fishing competitively" and "bow hunting" are not major life activities. To that end, the Court finds that mountain biking, weight lifting, and roller blading are not major life activities.
987 F. Supp. 1337, 1342 (D.Kan. 1997).
(b) Work
The Supreme Court has signaled its reluctance to hold that work is a major life activity. In Sutton v. United Airlines, Inc., the Supreme Court assumed without deciding that work was a major life activity and for the purposes of the instant case this Court will do the same. But, the Supreme Court noted that "[w]hen the major life activity under consideration is that of working, the statutory phrase `substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs."
Toyota Motor Mfg., Ky. Inc., 534 U.S. at 692.
527 U.S. 471, 492 (1999).
Id. at 491.
Even if the Court were to assume that work is a major life activity, Faroh has not shown he is substantially limited in this area. Faroh must produce evidence of an "inability to work in a `broad range of jobs' rather than in a specific job" in order to show a substantial limitation in the major life activity of work. Faroh has not met his burden.
Toyota Motor Mfg. Ky. Inc., 534 U.S. at 693 (quoting Sutton, 527 U.S. at 492).
The evidence shows Faroh cannot meet the physical requirements necessary for the Equipment Operator II position. But Faroh's physical limitations do not prevent him from performing a broad range of jobs similar to those of an Equipment Operator II. Faroh could perform truck-driving jobs in trucks with air-ride seats. Sedgwick County offered Faroh a truck-driving job, which he turned down because it "would have meant a decrease in salary."
(Faroh Dep., pp. 292 ¶ 4-25) (confirming his testimony before the Administrative Law Judge that Faroh estimated he could only perform 50 percent of his duties as an Equipment Operator II); (Workers' Comp. Hearing 7/16/96 pp. 61-63, in Tab 5) (stating that Faroh could not change blade on heavy equipment, could not operate chain saw and could not load and unload trucks with his physical restrictions).
(Terrill Dep., pp. 28 ¶¶ 3-5).
(Faroh Dep., pp. 234 ¶¶ 1-11).
Faroh has not shown that he is unable to perform a broad range of jobs, but rather has only demonstrated that he cannot perform the specific duties of an Equipment Operator II. In accordance with Sutton, the Court concludes Faroh is not substantially limited in his major life activity of work.
3) Record of an Impairment
Although Faroh has failed to establish that any of his claimed major life activities are substantially limited by his physical impairment, Faroh may still fall under the ADA's protection if he can show that a "record" of his physical impairment substantially limited one of his claimed major life activities. In order to meet his burden Faroh must "demonstrate that `a record relied on by an employer indicates that the individual has or has had a substantially limiting impairment.'"
See 42 U.S.C. § 12102(2)(B); Wicks, 125 F. Supp.2d at 1294.
Id.
In this instance, Faroh offers the FCE report as a record of his disability. Faroh then cites, as an example of his employer's reliance on the record, a letter dated October 20, 1995, from David C. Spears, Sedgwick County Bureau of Public Services/County Engineer. The letter states that "[b]ased on his permanent medical restrictions, the Bureau of Public Services is unable to accommodate Mr. John Faroh in his present position, or in any other position within this department." Faroh also cites his termination letter dated July 9, 1997, which states "[t]he essential job function of either position (equipment operator I or equipment operator II) are outside the scope of your medical restrictions."
Faroh ex. 32, tab 21.
The FCE report and the letters do not establish a record of Faroh being substantially limited in his major life activity of work. The letters, when placed in their proper context, show Sedgwick County offered reasonable accommodations for Faroh's physical impairment before terminating Faroh. Sedgwick County's offering Faroh a truck-driving position, after the FCE report, indicates a belief on its part that Faroh's physical impairment was not substantially limiting in regards to work. The Court finds Faroh's claim of having a record of a disability fails.
See Sorensen v. University of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir. 1999).
4) Regarded as Having a Disability
An individual has a "disability" under the ADA if the plaintiff is "regarded as having" an impairment that substantially limits a major life activity. There are two ways a plaintiff can fall within this classification: (1) the 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, non-limiting impairment is a substantially limiting impairment.Faroh undisputedly has a physical impairment. However, the evidence shows that Sedgwick County did not believe Faroh was substantially limited in the major life activity of work. Sedgwick County offered Faroh a job that was within Faroh's work restrictions, which Faroh refused. These actions do not indicate a belief that Faroh was substantially limited in his ability to work.
Faroh argues he was regarded as having a disability because in his termination letter Sedgwick County stated the "operator I and II positions were out of the scope of his medical restrictions." However, as discussed earlier, these statements are taken out of context and relate to an Equipment Operator I position Faroh expressed interest in after he was offered the truck-driving job. The Equipment Operator I position Faroh wanted had different job duties than the truck-driving job and would have violated Faroh's work restrictions. When the letter is viewed in this light it is clear Sedgwick County did not regard Faroh as having an impairment that substantially limited his major life activity of working. It is for all of these reasons that Faroh's ADA claim fails and summary judgment is appropriate.
See Welsh v. City of Tulsa, Oklahoma, 977 F.2d 1415, 1417 (10th Cir. 1992) (stating the denial of a single job due to a physical condition does not establish that a person is perceived as having an impairment that substantially limits a major life activity).
B. Rehabilitation Act Claim
The Rehabilitation Act of 1973 prohibits employers who receive federal funding from discriminating against individuals with disabilities on the basis of that disability. Case law interprets the Rehabilitation Act and the ADA as interchangeable. Because the ADA claim and the Rehabilitation Act claim are decided using similar standards, Faroh's Rehabilitation Act claim fails for the same reasons his ADA claim fails. Summary judgment is granted on this claim.
Id.
See Dutton v. Johson County Board of County Comm'rs., 859 F. Supp. 498, 504 (D.Kan. 1994).
C. Retaliatory Discharge Claim
For the purposes of the Motion for Summary Judgment only, the Court will assume without deciding that Faroh's claim of retaliatory discharge is not time barred. Faroh would be time barred on this claim if he was terminated on October 23, 1995, as he claims.
K.S.A. 60-513(a)(4) (stating an action for injury to the rights of another, not arising on contract, and not herein enumerated is governed by a two year statute of limitations).
Kansas law evaluates retaliation claims using the framework established by McDonnell Douglas v. Green. First, Faroh must establish a prima facie case raising a rebuttable presumption of retaliatory intent by showing (1) that he engaged in protected activity, that is he filed a claim for workers compensation; (2) that Sedgwick County had knowledge of the claim; (3) that Sedgwick County terminated his employment; (4) that a causal connection existed between his filing the workers compensation claim and his termination. Once Faroh satisfies the prima facie requirements, the burden shifts to Sedgwick County to articulate "a legitimate, nondiscriminatory reason" for its action.
411 U.S. 792 (1973); see, e.g. Lundien v. United Airlines, 424 F.3d 389 2000 WL 1789657 (10th Cir. 2000).
Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1234 (10th Cir. 2000).
Murray v. City of Sapulpa, 45 F.3d 1417, 1321 (10th Cir. 1995).
Finally, if Sedgwick County meets this burden, the burden shifts back Faroh, but Faroh is required to show by clear and convincing evidence that the reason given by the defendant was a pretext for retaliation for exercising rights under the Workers' Compensation Act.
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1116 (10th Cir. 2001) (quotation omitted).
Faroh successfully demonstrates the first three elements of his prima facie case. However, he has not proven the necessary causal nexus. Faroh can establish a causal connection by "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." The temporal proximity between the protected activity and the retaliatory conduct must be very close or Faroh must offer additional evidence to establish causation. For example, a one and one-half month period between the protected activity and the adverse action, may by itself, establish causation, but a three-month period, standing alone, is insufficient to establish causation.
Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied 459 U.S. 1071 (1982).
O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
In this instance, Faroh alleges that on October 19, 1995, he attended a meeting with Phil Chamber, Phil Rippe, and Kevin Nash. Faroh alleges that during the meeting Rippe threatened him by saying, "Your (sic) smart enough to know that you might win this lawsuit (workers comp. lawsuit), but it won't be enough to compensate you for the loss of your job." Faroh contradicts himself in a sworn affidavit which states that Kevin Nash made the threat. What Faroh offers as evidence is definitely not "certain" nor "unambiguous." Faroh does not state with certainty who made the alleged threatening statement. Additionally, Faroh offers no evidence other than his own affidavit to support his allegations. Furthermore, Faroh's allegation that he was terminated on October 23, 1995 is wholly unsupported by the record.
(Doc. 51 pg. 52).
Faroh Aff. ¶ 16.
On March, 23 1995, Faroh filed a worker's compensation claim. After October 23, 1995, Faroh received a letter dated November 8, 1995, giving him a leave of absence until July 6, 1996. He tried to return to work on July 8, 1996, but could not return because his physical condition had not changed. Nearly a year later on July 1, 1997, he had a pre-termination hearing and was subsequently notified by a letter dated July 9, 1997, that he was terminated. The Court construes the facts in light most favorable to Faroh and finds he was effectively terminated on July 8, 1996. However, more than 15 months passed between his filing the workman's compensation claim and his July 8, 1996, termination date. The Tenth Circuit has rejected a three month interim as too long to establish a causal connection based on temporal events. Although the alleged comment by Nash or Rippe is evidence in addition to the temporal events, subsequent acts of Sedgwick County rebut the inference that it had decided back in October of 1995, to terminate Faroh. Sedgwick County gave the Faroh an eight month leave of absence, then tried to accommodate Faroh with a truck-driving job. There is no evidence in this record of the requisite causal connection between his filing of a workers compensation claim and his subsequent termination.
See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997).
IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment is GRANTED with respect to all of Plaintiff's claims.
IT IS SO ORDERED