Opinion
Case No. 2:01CV754DAK
December 19, 2003
ORDER
BACKGROUND
Plaintiff Rosalind Sjostrom (hereinafter "Plaintiff" or "Sjostrom") sued Defendant The May Department Stores Company, d/b/a Meier Frank (hereinafter "Defendant" or "Meier Frank") in 2001 alleging claims relating to a purported unlawful termination of employment. Defendant has moved for Summary Judgment. Defendant's Motion was heard on December 11, 2003. Sjostrom represented herself. Meier Frank was represented by Scott Hagen. The Court has considered the arguments of counsel, the memoranda and exhibits thereto, and the relevant law.
FACTS
Plaintiff began working for ZCMI in July of 1976. Since then, the May Department Stores Company has purchased ZCMI and is operating the former ZCMI stores under the Meier Frank trade name. From the time of said purchase forward, Sjostrom has been employed by Defendant. Over the years she worked in basically all of the women's areas.
On July 18, 2000, Plaintiff was involved in a serious car accident which among other things damaged her left ankle. Temporarily, she was unable to work.
On July 25, 2000, Sjostrom signed a "Request For Leave of Absence." On July 26, 2000, Defendant's Human Resources manager approved Plaintiffs leave request by completing and signing a form called "Response to Employee's Request For Leave of Absence." Plaintiff signed this form on July 31, 2000. This form clearly states that Plaintiffs leave will begin on July 19, 2000 and that Plaintiff was expected to return to work on September 9, 2000. This Response also further states "Associates will be returned to the same or an equivalent position (if the same position no longer exists) with no loss of benefits accrued prior to leave. Any associate who does not return to work at the end of an authorized leave is subject to termination of employment." Sjostrom did not return to work on September 9, 2000.
Plaintiffs FMLA leave expired on that date.
Defendant assigned another employee to take over Plaintiffs job responsibilities. As of November 18, 2000, Plaintiff had still not returned to work. It is undisputed that Plaintiff could not return to work until Meier Frank received a form from her doctor releasing her to return to work. It is also undisputed that Meier Frank advised Plaintiff in September that her position was being filled because they were getting ready for Christmas and needed help.
After November 21, 2000, Plaintiff provided Defendant with a Certificate of Health Care Provider form signed by her physician which stated that she was unable to perform two functions of her job, namely squatting and tasks requiring balance. In late November, 2000, Plaintiff told Defendant she was ready to resume working again with the referenced limitations. Defendant indicated to Plaintiff that Plaintiffs physical limitations were problematic since Plaintiffs former position required squatting and climbing ladders and, in any event, Plaintiffs position had been filled.
There is no evidence of any vacant positions available at this time.
When she was discharged, Plaintiff could walk, hear, care for herself and see. She was limited in her ability to run and had a balance problem with her left leg. Plaintiff testified in her deposition that on November 18, 2000, she was able to walk, care for herself, hear, see, breathe and work. She testified that the balance problems with her left leg did not limit her day-to-day activities,
There is no evidence that Meier Frank believed that Plaintiff was significantly restricted in her ability to perform a broad range of jobs in various classes. Meier Frank invited Plaintiff to apply for a position in the future.
LAW
The Court notes that an affidavit contradicting earlier sworn testimony in a deposition can be disregarded. Kendrick v, Penske Transportation Serv. Inc., 220 F.3d 1220 (10th Cir. 2000). The Court has disregarded statements in Plaintiffs affidavit that are inconsistent with her sworn deposition testimony for purposes of Defendant's Motion for Summary Judgment.
The Court finds that Plaintiff was not disabled under the Americans With Disabilities Act ("ADA"). Plaintiffs problems with running and walking do not qualify as disabilities under the ADA, Running is not a major life activity. Black v. Roadway Express. Inc., 297 F.3d 445 (6th Cir. 2002). See also, Penny v. United Parcel Serv., 128 F.3d 408 (6th Cir. 1997).
Defendant did not regard Plaintiff as disabled. Under this theory, Plaintiff must show that the employer harbored misconceptions about an individual's problems and difficulties. See Pricket v. Amoco Oil Company, 147 F. Supp.2d 1147 (D.UT. 2001). Any employee who is regarded by an employer as having only a temporary inability to perform a job is not perceived as disabled under the ADA. Sutton v. Laden, 185 F.3d 1203 (11th Cir. 1999). Defendant correctly understood that Plaintiff was unable to perform activities which required her to balance or squat. However, Meier Frank was willing to rehire Plaintiff and did not regard her as unable to work in a class of jobs or a range of jobs. There is no evidence on this record that Meier Frank believed Plaintiff to be disabled.
Meier Frank was not legally obligated to accommodate a type of impairment that does not qualify as a disability under the ADA. See Gonzales v. Perfect Carton Corp., No. 95 C 5476 (NDI, ED) (Feb. 23, 1996). Further, there is no evidence that a reasonable accommodation was available.
Sjostrom has not shown that Meier Frank's legitimate reason for terminating her was pretextual. Her employment was terminated because she apparently was unable to and did not return to work at the end of her leave. Defendant was entitled to terminate her for this reason. See Matuska v. Hinckley Township, 56 F. Supp.2d 906 (N.D. Ohio 1999). Plaintiff argues that she was entitled to exhaust her sick leave before being terminated. She may be entitled to be paid for her accrued sick leave and accrued vacation, however, Defendant had no obligation to allow an at-will employee to receive those fall benefits before being terminated when she failed to return to work at the time she was obligated to return to work pursuant to a document she signed. For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED. The granting of defendant's Motion closes this case. Each party shall bear her or its own costs.