Opinion
No. 4:01-CV-1354 CAS
March 6, 2003
MEMORANDUM AND ORDER
This matter is before the Court on defendants' motions for summary judgment. For the reasons set forth below, the Court will grant defendants' motions as to all but one state-law claim and will decline to exercise supplemental jurisdiction over the remaining state-law claim.
Plaintiff John Shaver was employed by defendant Salem Wood Products Company (Salem) as a production line worker from May 1998 until his discharge on September 23, 2000. In Counts I-III of his first amended complaint Shaver claims that Salem violated the American with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and the Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.010, et seq., by (1) subjecting him to a hostile work environment and disparate treatment based upon his disability of having metal plates in his skull from surgery for epilepsy; and (2) retaliating against him for exercising his rights under the ADA and MHRA by giving potential employers negative job references. In Count IV, Shaver claims that Salem violated the Missouri Workers' Compensation Law, Mo. Rev. Stat. § 287.780, by disciplining him, discharging him, and providing negative job references in retaliation for his exercising his rights under that law. In Count V he claims that Salem violated the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., by discharging him for taking leave to care for his children.
Shaver also names Independent Stave Company (Independent Stave) as a defendant, asserting that it holds itself out as, and performs human resource functions for, Salem. Salem moves for summary judgment on the ground that Shaver has not presented a jury question on any of his claims against it. Independent Stave moves for summary judgment on the ground that it was not Shaver's employer.
BACKGROUND
For purposes of the motions under consideration, the record establishes the following. Shaver was diagnosed with epilepsy in 1979 at the age of 13. He was on Social Security disability for four years, from 1991-1995. In 1994-95, he underwent several surgical procedures in which part of his brain tissue was removed and three metal plates were placed in his skull. The surgery was successful to the extent that it made plaintiff's epilepsy controllable through medication. (Shaver Depo. at 16-18). Shaver came off Social Security and worked as an automotive technician until May 1998 when he began working for Salem. Salem was not aware of Shaver's epilepsy when he was hired.
Salem is in the business of buying oak logs that it cuts into staves and headers for bourbon barrels and then ships them to Independent Stave. Shaver's job as an "Optimizer" entailed checking 9-25 foot logs, with the aid of a computer, for defects and marking the defects on the logs so that the chain-saw operators would know the best way to cut the logs. His work week consisted of four ten-hour shifts, Wednesday through Saturday, 6:30 p.m. to 5:00 a.m.
In June 1998, plaintiff was injured on the job and was accompanied by a supervisor to the hospital for treatment. At the hospital, the supervisor learned about the plates in plaintiff's head and told co-worker's at Salem about this, after which Shaver's co-workers, as well as supervisors, began calling him "Platehead." Shaver let it be known that he did not like this nickname, but co-workers and supervisors continued to use it on a frequent basis and in conjunction with referring to Shaver as stupid. Shaver was aggravated by this and lost sleep over it, and felt under constant pressure to prove that he was not stupid.
On November 17, 1999, Shaver injured his right index finger on the job. On March 15, 2000, Shaver was issued a written warning for excessive absenteeism. On March 27, 2000, the physician treating Shaver's injured finger returned him to full duty. On April 19, 2000, Shaver's supervisor saw Shaver sitting at his work station not working. Shaver told him his finger hurt too much to perform his task. The supervisor issued Shaver a warning that the next incident would result in a three-day disciplinary layoff. The next day, Shaver saw a physician who gave him a note saying that he should not use his right hand for work until his next appointment with his hand specialist. Shaver was paid temporary total disability benefits for the next four days after which he saw a hand specialist who gave him a written work restriction restricting him to one-handed duty until he had surgery on his right hand. On May 9, 2000, Shaver had surgery on his right hand and was off from work until May 22, 2000, during which time he was paid temporary total disability benefits. On July 31, 2000, Shaver was released from his doctor's care with no restrictions. A report dated September 1, 2000, noted that Shaver had permanent injuries and faced potential future surgery.
On September 23, 2000, Shaver received a phone call at work at approximately 8:45 p.m. from his babysitter telling him that his two young children were running a fever and that there was no medication at home. Shaver's wife was out of town and Shaver told an assistant supervisor that he needed to go home. According to Shaver, the assistant supervisor gave him permission to leave. Charles Bacon, the shift supervisor, saw Shaver in his truck getting ready to leave and asked him what he was doing. Shaver told Bacon that he needed to go home to arrange things, and drove off. Shaver returned approximately one and one-half hours later and Bacon gave him a written warning and a three-day suspension for leaving work without permission. Shaver signed the warning and suspension, shoved the paper across the desk "with some vigor," and left the office. Bacon reported this to the mill manager, Michael Transano who decided to terminate Shaver for the stated reason of insubordination. On October 3, 2000, Shaver filed a claim for workers' compensation for the right-hand injury.
During this entire period, Shaver's epilepsy was controlled by medication. He had no trouble doing manual labor, walking, talking, seeing, hearing, speaking, learning, or working. (Shaver Depo. at 17-18). On January 11, 2001, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Missouri Commission on Human Rights, claiming that he had been harassed by being called "Platehead," that Salem failed to accommodate his right-hand injury, and that he was discharged due to his disability — "hand injury/brain injury."
Shaver alleges that in the beginning of May 2001, he applied for work with two acquaintances who owned small businesses and gave Bacon's name as a reference. When these proprietors called Bacon, Bacon told them angrily that he could not recommend Shaver for a position and that Shaver was looking for a get-rich-quick scheme and was involved in suing companies. Neither acquaintance hired Shaver. Also, Transano told two prospective employers that Shaver was not eligible to be rehired by Salem.
On June 7, 2001, plaintiff filed a second administrative charge of discrimination, claiming that Salem retaliated against him by giving him bad references because of his previous charge. He later supplemented the charge, claiming that the bad references were also in retaliation of his having filed a workers' compensation claim for his right-hand injury. Later that summer, a former co-worker of Shaver's at Salem gave a prospective employer inquiring about Shaver a good reference for Shaver and Shaver was hired.
Shaver alleges that in the beginning of 2001, his epilepsy got out of control again because of stress. His neurologist changed his medication which lessened the severity of epileptic attacks, but as of the date of his deposition, April 24, 2002, his condition kept him from working on a full-time basis. (Shaver Depo. at 19-20).
ARGUMENTS OF THE PARTIES
Salem argues that at all relevant times, Shaver did not have a "disability" as that term is defined by the ADA. Salem presents Shaver's deposition testimony noted above that during the time he worked for Salem, his epilepsy did not limit him in any major life activity, including thinking, learning, and working. Salem also presents Shaver's deposition testimony that he never asked for or required any special accommodation because of his epilepsy and that his epilepsy did not affect his ability to do his job. (Shaver Depo. at 77-78).
Salem also submits Transano's affidavit that he never considered Shaver to be disabled or to have a substantially limiting impairment by reason of his epilepsy or any other reason. Transano further attests that insofar as he was aware, Shaver was at all times an employee physically and mentally able to perform the tasks assigned, and that to the best of Transano's knowledge and belief, all the shift supervisors who had contact with Shaver were of the same opinion. Transano attests that all mill employees who were promoted during Shaver's tenure with Salem had more experience than Shaver and were the best candidates for the promotions. Transano attests that the only reason for his decision to discharge Shaver was the disrespect and insubordination Shaver exhibited towards Bacon.
Salem argues that Shaver's harassment claim fails, first, because he is not disabled within the meaning of the ADA, and second, because any harassment was not so extreme as to alter the terms and conditions of Shaver's employment. With regard to Shaver's claims of retaliation under the ADA, Salem argues that giving a poor reference to a former employee is not covered by the ADA, that Salem cannot be held responsible for comments made by Bacon, and that Shaver has "manufactured" a retaliation claim by applying for work with friends who did not have jobs available for Shaver, giving Bacon's name as a reference knowing that Bacon would give a negative reference, and then procuring statements from his friends that they did not hire him because of Bacon's poor references. Salem presents evidence that the two businesses did not hire anyone else at the time in question.
Salem argues that Shaver cannot establish a retaliatory discharge claim under the Missouri Workers' Compensation Law because he did not file a claim for benefits under that law until after he was discharged, and because he cannot show an exclusive causal relationship between the exercise of a right under the law and the discharge. Lastly, Salem argues that Shaver's FMLA claim fails because Shaver did not request leave pursuant to the FMLA when he left the mill or when he returned, and he did not tell Bacon before his discharge that he had to leave because his children were sick.
In response to Salem's motion for summary judgment, Shaver argues that he is covered by the ADA because he had a "disability" as that term is defined by the ADA. He argues that he has presented a jury question on whether the harassment he experienced on the job constituted an actionable hostile work environment under these statutes. Shaver further argues that a jury question is presented with regard to his retaliation claims. Shaver argues that retaliatory job references are prohibited by the ADA, that Bacon possessed the express or implied authority to respond to inquiries concerning former employees, and that Salem has not established as a matter of law that Shaver manufactured a cause of action for retaliation.
Lastly, Shaver raises for the first time a claim under the ADA and the MHRA based upon the unauthorized public disclosure of his medical condition, i.e., his epilepsy and the plates in his skull. Shaver does not address his FMLA claim. Salem replies that it is entitled to summary judgment on Shaver's claim regarding the unauthorized disclosure of medical information because it was plead in Shaver's complaint and was not part of his administrative charges of discrimination.
Independent Stave argues that it is entitled to summary judgment because it and Salem are two separate companies. Shaver responds that a jury could find that Independent Stave exercised sufficient participation in Salem's human resource functions and decision-making to hold Independent Stave liable as a "joint employer" with Salem.
DISCUSSION Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In ruling on a motion for summary judgment, the court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. Darby v. Bratch, 287 F.3d 673, 678 (8th Cir. 2002). The moving party bears the burden of showing the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
When a motion for summary judgment is made and properly supported by evidence, the non-moving party may not rest on the allegations of his pleadings but must set forth specific facts, by affidavit or other evidence, showing that there is "a genuine issue for trial." Fed.R.Civ.P. 56(e). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Hostile Work Environment
To establish a claim of discrimination under the ADA, a plaintiff must make a prima facie showing that (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job, with or without reasonable accommodation; and (3) he suffered adverse employment action because of his disability. Kellogg v. Union Pacific R.R., 233 F.3d 1083, 1087 (8th Cir. 2000); Kiel v. Select Artificials Inc., 169 F.3d 1131, 1134-35 (8th Cir. 1999) (en banc). If the plaintiff fails to establish any element of his prima facie case, summary judgment is proper. Kellog, 233 F.3d at 1087. If the plaintiff meets his burden, a rebuttable presumption of discrimination emerges and the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action taken against him. If the employer rebuts the presumption, the plaintiff must demonstrate that the company's nondiscriminatory reason was pretextual. Id.
The discussion and conclusions that follow with regard to Shaver's claims under the ADA also apply to his claims under the MHRA. See Darby v. Bratch, 287 F.3d at 678.
"Disability" is defined by the ADA 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." 42 U.S.C. § 12102 (2). Here Shaver asserts that his epilepsy and having plates in his skull meets subsections (B) and (C) of this definition.
The Court notes that at all times relevant to this case, Shaver would not be considered disabled under subsection (A) of the definition because "those whose impairments are largely corrected by medication or other devices are not `disabled' within the meaning of the ADA." Sutton v. United Airlines, Inc., 527 U.S. 471, 486 (1999) (citing epilepsy as an example of an impairment that may or may not be disabling with the use of medication). See also EEOC v. Sara Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001) (plaintiff whose epilepsy is well controlled by medication and whose remaining seizures are light and infrequent is not disabled under subsection (A).
There are two ways in which individuals may fall within the "regarded as" definition of disability: (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. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often "resul[t] from stereotypic assumptions not truly indicative of . . . individual ability." Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999); see also Brown v. Cox Med. Ctr., 286 F.3d 1040, 1045-46 (8th Cir. 2002) (evidence supported jury finding that employer regarded "relapsing remitting" multiple sclerosis from which employee suffered as substantially limiting her ability to think, and thus regarded her as disabled within the meaning of the ADA).
For the purposes of analyzing Shaver's hostile work environment claim, the Court assumes that Shaver meets the definition of being a disabled person under subsections (A) and (B) of § 12102(2). The Eighth Circuit has implicitly recognized that a cause of action exists under the ADA for a hostile work environment, and that such a claim is governed by the same standards for establishing a hostile work environment under Title VII of the Civil Rights Act of 1964. See Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723 (8th Cir. 1999) (assuming existence but not reaching issue as plaintiff failed to present evidence that harassment occurred because of disability), cert. denied, 521 U.S. 1019 (2000); Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681, 688 (8th Cir. 1998) (assuming existence of claim for purposes of summary judgment), cert. denied, 526 U.S. 1004 (1999); Cody v. CIGNA Healthcare, 139 F.3d 595, 598 (8th Cir. 1998) (affirming summary judgment for employer but implicitly recognizing ADA hostile work environment claim).
In Duncan v. General Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002), the Eighth Circuit explained that only conduct that is "severe and pervasive" can form the basis of a hostile work environment claim. In determining whether the conduct involved is sufficiently severe or pervasive, a court looks "to the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it [both objectively and subjectively] unreasonably interferes with an employee's work performance" Id.; see also Fox v. General Motors Corp., 247 F.3d 169, 179 (4th Cir. 2001) (standard applied to hostile work environment claim under the ADA).
Upon review of the record and taking the evidence in the light most favorably to plaintiff, the Court concludes that the frequent reference to plaintiff as "Platehead," both to him and behind his back, may have been insulting, mean-spirited, and unprofessional, but, as a matter of law, was not so severe and extreme that a reasonable person would find that the terms and conditions of his employment had been altered. See, e.g., Coulson v. Goodyear Tire Rubber Co., 2002 WL 4008872, at *6 (6th Cir. 2002) (references to plaintiff who suffered from depression as "looney toon," "wacko," and "crazy" did not create an environment so hostile as to constitute an adverse employment action under the ADA);McClain v. Southwest Steel Co., 940 F. Supp. 295 (N.D. Okla. 1996) (same with respect to calling depressed plaintiff "crazy" and "lunatic" and asking "what the f___'s wrong with you?"); cf. Fox v. General Motors Corp., 247 F.3d at 179 (jury's finding of a hostile work environment under the ADA by plaintiff subject to work restrictions because of a back injury was supported by evidence that plaintiff's managers regularly berated and harassed him and other disabled workers with vulgar and profane language regarding his disability, encouraged other employees to ostracize disabled workers, and required plaintiff to perform tasks beyond his medical restrictions).
Retaliatory Negative Job References
The ADA contains an anti-retaliation provision that prohibits discrimination against "any individual because such individual . . . made a charge" under the ADA. 42 U.S.C. § 12203 (a). To state a claim for retaliation under the ADA, a plaintiff must demonstrate that he engaged in protected conduct by opposing illegal discrimination, that his employer took some adverse employment action against him, and that there is a causal nexus between his protected conduct and the adverse employment action. Salitros v. Chrysler Corp., 306 F.3d 562, 568 (8th Cir. 2002); Foster v. Time Warner Entertainment Co., 250 F.3d 1189, 1194 (8th Cir. 2001).
The Court first concludes that a claim against a former employer based upon alleged retaliatory job references may be stated under the ADA. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (former employees may bring suit against their previous employers under Title VII for post-termination retaliation such as negative job references); Smith v. St. Louis University, 109 F.3d 1261, 1266 (8th Cir. 1997) (same). The Court rejects Salem's argument that it cannot be held responsible for Bacon's comments to prospective employers. The Court also recognizes that a plaintiff need not prevail on his direct discrimination claim for a retaliation claim to be actionable. See Sisco v. Alberici Constr. Co., 655 F.2d 146, 150 (8th Cir. 1981) (Title VII case); see also Krouse v. American Sterilizer Co., 126 F.3d 494, 502 (3d Cir. 1997) (a plaintiff in an ADA retaliation case need not be a qualified person with a disability). Furthermore, to state a claim of retaliation based upon a negative job reference, a plaintiff need not prove an actual job loss due to the negative reference. Smith, 109 F.3d at 1266.
Upon review of the record, however, the Court concludes that Shaver's claim here fails. The Court does not believe that a reasonable jury could find in favor of Shaver on this claim because the evidence points overwhelmingly to the conclusion that Shaver manufactured this claim by asking his acquaintances to call Bacon for a job reference, knowing that Bacon would in all probability give a negative one. Bacon was, after all, the supervisor who had disciplined Shaver on the day Shaver was terminated, and the supervisor to whom Salem maintains Shaver exhibited the disrespect and insubordination that lead to his termination. Bacon was only one of several individuals who had supervised Shaver during his tenure at Salem, to whom Shaver could have referred his acquaintances, yet Shaver chose Bacon as his reference.
This conclusion is further is further supported by the facts that Shaver's two acquaintances did not hire anyone in the time period in question, and that approximately two months later, another co-worker from Salem acted as a good reference for Shaver to a different prospective employer who then hired Shaver. Cf. McFadden v. State Univ. of N.Y., 195 F. Supp.2d 436, 454 (W.D.N.Y. 2002) ("An employee who knows that some adverse action is in the works cannot manufacture a claim for retaliation, based solely on the anticipated adverse action itself, merely by complaining of discrimination before the action is finally taken."). Even if Shaver's purpose in asking his friends to call Bacon for a reference was to "test the waters" and see what Bacon might say to a prospective employer, Bacon's comments would not make a submissable case of retaliation.
Remaining Federal Claims
The Court concludes that Salem is entitled to summary judgment on Shaver's claim based upon Salem's disclosure of confidential medical information about Shaver. Although this is prohibited by the ADA, Shaver raised this claim for the first time in response to Salem's motion for summary judgment. See Flanigan's Enters., Inc. v. Fulton Co., 242 F.3d 976, 988 (11th Cir. 2001) (a plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment);Speer v. Rand McNally Co., 123 F.3d 658, 665 (7th Cir. 1997) (same). Furthermore, the Court concludes that Salem is entitled to summary judgment on this claim because it is outside the scope of Shaver's administrative charges. See Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 836 (8th Cir. 2000) (ADA harassment claim was not reasonably related to discriminatory termination claim noted in administrative charge and thus could not be raised in court action).
In response to Salem's motion for summary judgment, Shaver did not address the FMLA claim raised in his first amended complaint. Upon review of the record, the Court concludes that Salem has shown that it is entitled to summary judgment on this claim.
CONCLUSION
For the forgoing reasons, the Court concludes that Salem is entitled to summary judgment on all of Shaver's federal claims, as well as on his claims under the MHRA. The Court declines to exercise supplemental jurisdiction over Shaver's claim under the Missouri Workers' Compensation Law. See, e.g., Birchem v. Knights of Columbus, 116 F.3d 310, 314 (8th Cir. 1997) (when state and federal claims are joined and all federal claims are dismissed on a motion for summary judgment, the state claims are ordinarily dismissed without prejudice to avoid needless decisions of state law, as a matter of comity).
Accordingly,
IT IS HEREBY ORDERED that defendant Salem Wood Products Company's motion for summary judgment is GRANTED on all counts except Count IV. [Doc. 30]
IT IS FURTHER ORDERED that defendant Independent Stave Company's motion for summary judgment is GRANTED on all counts except Count IV. [Doc. 32]
IT IS FURTHER ORDERED that Count IV is DISMISSED without prejudice.
IT IS FURTHER ORDERED that all other pending motions are DENIED as moot.