ROBERT L. MILLER, Jr., District Judge.
Linda Rowlands brought suit against her former employer, United Parcel Service, under Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act after her employment was terminated in July 2012 and January 2013.
Summary judgment is appropriate when the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact, such that the movant is entitled to judgment as a matter of law.
Linda Rowlands was 50 years old and had worked for UPS at its Fort Wayne facility for some 25 years when her employment as a Quality Control Clerk was terminated for the first time in July 2012 for falsifying her time card in violation of UPS's Honesty in Employment policy. The pertinent part of that policy states:
[Doc. No. 52-6 at 7].
Ms. Rowlands filed a grievance with the union after her termination and the parties agreed to convert it into a suspension without pay. Ms. Rowlands returned to work in September 2012. She was terminated again in January 2013 for violating the company's Crisis Management and Workplace Violence Prevention Policy after a coworker reported she threatened him when she displayed and activated a taser at work. UPS's violence prevention policy provides in pertinent part:
[Doc. No. 52-6 at 9].
Ms. Rowlands doesn't dispute that she changed the start date on her time card or that a coworker reported feeling threatened when she brought a taser to work and activated it ten to fifteen feet from him, nor does she dispute the other violations for which she was reprimanded. But she contends UPS treated other similarly situated employees more favorably and the stated reasons for the discipline were pretextual, asserting that UPS really terminated her because she was a 50-year-old woman with a disability for which she had requested accommodation.
Ms. Rowlands alleges that she was suspended in July 2012 because she was a 50 year-old woman, in violation of Title VII and the ADEA, and that UPS's stated reason for suspending her—falsifying her time card and not reporting time correctly—was "a sham to cover up the real reason" for the suspension.
The court of appeals has "tried to move away from the many multifactored tests in employment discrimination cases," and focuses on "whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge."
Ms. Rowlands doesn't deny altering her time records, or disagree that she violated UPS's Honesty in Employment policy. She appears to concede that there is no direct evidence of sex or age discrimination, but contends that she has "a rather large amount" of circumstantial evidence from which a reasonable juror could infer intentional discrimination—specifically evidence that men under 40 were treated better.
In a disciplinary case such as this, in which a Ms. Rowlands "claims that she was disciplined by her employer more harshly than a similarly situated employee based on some prohibited reason, [Ms. Rowlands] must show that she is similarly situated with respect to performance, qualifications, and conduct."
Ms. Rowlands offers Joe Gropengieser, a substantially younger male, who performed many duties in the quality control department with her, as her nearest comparator. In some ways, Mr. Gropengieser is a good comparator. Both he and Ms. Rowlands worked in the quality control department, although their job descriptions were different, and the evidence suggests that, at least recently, both were supervised by Steve Liskey.
With regard to conduct, Ms. Rowlands notes that shortly after her January 2013 termination, Mr. Gropengieser and Stephen Harms, a union steward at UPS, had a verbal altercation during which Mr. Gropengieser told Mr. Harms they should leave the building to fight. That threat occurred in the presence of UPS management, Mr. Liskey, who warned Mr. Harms and Mr. Gropengieser that he would take them out of service if they didn't end their argument. Mr. Gropengieser wasn't discharged—as was Ms. Rowlands when a coworker reported that she threatened him—despite his apparent violation of UPS's "zero tolerance" violence prevention policy.
UPS doesn't deny Mr. Gropengieser threatened to beat Mr. Harms yet wasn't disciplined. Rather, the company argues that Mr. Gropengieser didn't engage in similar conduct because the basis for Ms. Rowlands's July 2012 suspension was a violation of the Honesty in Employment policy—timecard fraud—not a violation of the violence prevention policy. UPS contends there is no evidence Mr. Gropengieser ever falsified his time card or otherwise violated the Honesty in Employment policy. But the similarly situated inquiry isn't a search for a comparator who engaged in identical conduct; "the critical question is whether they have engaged in conduct of comparable seriousness."
That Mr. Gropengieser and Ms. Rowlands engaged in conduct of comparable seriousness doesn't end the court's inquiry. Ms. Rowlands must demonstrate that they "engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them."
This inquiry is complicated by the fact that Ms. Rowlands didn't depose any UPS managers or submit for the record any personnel evaluation or other records that could support her argument that they were similarly situated. The scant evidence available suggests that they weren't similarly situated with respect to performance. Mr. Harms—who largely supported Ms. Rowlands's claims in his deposition—testified that Mr. Gropengieser would have been a better worker than Ms. Rowlands in her job and that she was "a pain in the butt" to Mr. Liskey and "wasn't the best worker in the place by far" because she was "an odd character," "ditzy," and "kind of crazy."
The evidence in the record doesn't allow the court to conclude that Mr. Gropengieser was similarly situated with respect to performance history. Because "[a]n employee who does not have a similar disciplinary history and performance record as the plaintiff is not similarly situated,"
Ms. Rowlands contends that beyond Mr. Gropengieser, "she has many examples of individuals who were treated more favorably," arguing that these other employees engaged in timecard fraud by changing their start times but weren't disciplined. But she didn't cite evidence regarding these employees' job description, performance, qualifications, or conduct to support this contention, so the court can't determine whether they were similarly situated. She also asserted that Heather Jones, a supervisor, and Mr. Harms changed their start times, but weren't terminated. But Ms. Jones wasn't prohibited from making changes because she was a supervisor and Ms. Rowlands didn't cite any evidence to show that Mr. Harms or any other employee altered his or her start time after a UPS policy change prohibited non-management employees from making such alterations.
Ms. Rowlands hasn't identified a similarly situated employee who was treated more favorably, so the court can't find that she has produced "evidence [that] would permit a reasonable factfinder to conclude that . . . [a] proscribed factor caused the discharge."
Ms. Rowlands also contends that she was wrongfully discharged in July 2012 and January 2013 because of a disability—a knee injury—or because UPS regarded her as disabled. She also asserts that UPS failed to make reasonable accommodations for her disability.
To prevail on her disability discrimination claim and avoid summary judgment, Ms. Rowlands must show that (1) she is disabled within the meaning of the ADA; (2) she can perform the essential functions of her job, with or without reasonable accommodation; and (3) UPS took an adverse job action against her because of her disability or without making a reasonable accommodation for it.
The inquiry begins with whether Ms. Rowlands meets the ADA's definition of disabled and so is covered by the Act. The ADA defines disability as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102. "Major life activities" include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working," 42 U.S.C. § 12102(2). "An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii). "`Substantially limits' is not meant to be a demanding standard," but "not every impairment will constitute a disability within the meaning of th[e ADA]." 29 C.F.R. § 1630.2(j)(1)(i)-(ii).
Ms. Rowlands asserts that her knee injury substantially limited her performance of the major life activities of walking, standing, squatting, knelling, and working both in July 2012 and in January 2013. The court will separately consider Ms. Rowlands's 42 U.S.C. § 12102(1) disability discrimination claims with respect to her July 2012 suspension and her January 2013 termination.
After falling in April 2012, Ms. Rowlands saw her orthopedist, Dr. Jeffrey Harris. Dr. Harris's report from that visit indicates that Ms. Rowlands complained of "burning and stabbing" right knee pain, which she described as a ten on a scale of one to ten. [Doc. No. 58-5]. An MRI revealed a right medial meniscal tear, and Dr. Harris recommended an arthroscopic partial medial meniscectomy, which was performed after her July 2012 suspension-turned-termination. Dr. Harris authorized her to return to work before surgery, but restricted her to "no stairs/docks/ladders at all."
Ms. Rowlands's meniscal tear, which she said made various major life activities difficult and caused a doctor to restrict her from climbing any stairs, was a substantial limitation on a major life activity and so meets the ADA's definition of a disability. See 29 C.F.R. § 1630.2(j)(1)(i), (iii) ("the threshold issue of whether an impairment `substantially limits' a major life activity should not demand extensive analysis . . . [and] shall be construed broadly in favor of expansive coverage").
Ms. Rowlands was disabled when UPS suspended her in July 2012, so the court turns to whether that suspension was discriminatory. To demonstrate disability discrimination, Ms. Rowlands must "show that . . . her employer would not have fired [her] but for [her] actual or perceived disability; proof of mixed motives will not suffice."
As with her Title VII and ADEA claims, Ms. Rowlands contends that Mr. Gropengieser was similarly situated and received better treatment. But as discussed in detail when addressing those claims, Ms. Rowlands can't show that Mr. Gropengieser was similarly situated with respect to performance, qualifications, and conduct.
Ms. Rowlands also asserts that she presented evidence showing UPS's stated reason for the adverse employment action taken against her were pretextual. "In determining whether an employer's stated reason for discharge is pretextual, the question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain the discharge."
Ms. Rowlands contends that UPS administered its policies arbitrarily, singling her out, and subjected her to different standards. She asserts, for example, that she was prohibited from taking breaks with coworkers, moving her car in the parking lot, and bringing her purse to her workstation while coworkers brought bags and coolers to work. These arguments provide context, but don't directly address the issue of pretext. The concern in the pretext inquiry isn't whether UPS was unfair or too hard on Ms. Rowlands; "the only question is whether the employer's proffered reason [for the adverse job action] was . . . a lie."
Ms. Rowlands argues that UPS couldn't have honestly believed that Mr. Gropengieser, a 37 year-old body builder, felt threatened by Ms. Rowlands. But this was the basis for her January 2013 termination, not the July 2012 suspension, and so is irrelevant on this issue. With respect to the July 2012 suspension, Ms. Rowlands doesn't deny having altered timecard or point to any other non-management employee who committed timecard fraud and wasn't terminated. UPS produced uncontested evidence that two men younger than Ms. Rowlands were fired in 2014 and 2015 for improperly reporting or altering work times.
Ms. Rowlands hasn't offered other evidence that would "show that the legitimate nondiscriminatory reason offered by [UPS] . . . was a lie or a sham to cover up discriminatory motives." She can't demonstrate that the July 2012 suspension was pretextual.
With respect to the January 2013 termination, the court must first consider whether Ms. Rowlands was disabled when UPS terminated her. Ms. Rowlands maintains that her knee injury substantially limited her ability to perform the major life activities of walking, standing, squatting, knelling, and working even after her meniscal tear was repaired in July 2012 and she was authorized to return to work. Ms. Rowlands cites statements in her affidavit, in which she attests, among other things, that: "[her] knee interfered with [her] ability to climb into vehicles, exercise, enjoy recreation, and pick up objects", and that "[she] also had problems and difficulty with walking, standing, squatting and kneeling [and] could not climb stairs very well."
The medical evidence in the record contradicts Ms. Rowlands's claims that her knee still substantially limited her in January 2013. Her torn meniscus was surgically repaired in July 2012. While her orthopedist, Dr. Harris, indicated that she was briefly disabled while recovering from surgery, he estimated that disability period would end a month after surgery, at the end of August 2012. By September 2012, Dr. Harris opined that she could "return to work with no restrictions" and didn't suggest her knee substantially limited her in any way.
Based on the evidence in the record, no reasonable jury could find that Ms. Rowlands had an impairment that substantially limit her ability to perform a major life activity as compared to most people in the general population when UPS terminated her in January 2013 and, therefore, she wasn't disabled.
Based on the foregoing, UPS is entitled to summary judgment on Ms. Rowlands "substantially limiting impairment" disability discrimination claims.
Ms. Rowlands argues that UPS discriminated against her by regarding her as disabled and wrongfully discharging her in July 2012 and January 2013 because of her actual or perceived impairment. See 42 U.S.C. § 12102(1)(C) (including being regarded as having a physical or mental impairment that substantially limits one or more major life activities as part of the definition of "disability"). "The `regarded as' prong of the ADA's disability definition is intended to provide a remedy for discrimination based on misperceptions about the abilities of impaired persons."
Ms. Rowlands contends that UPS regarded her as disabled because she had "been off of work for extended periods of time in 2005, 2008-2009, 2011 and 2012," wore a knee brace when she returned to work in September 2012, and regularly elevated and iced her knee at work. She also notes that she discussed her impairment with Mr. Liskey on multiple occasions, including her interest in icing her knee, elevating her leg, and using a bathroom on the floor where her work station was located to avoid stairs. These assertions allow an inference that UPS knew Ms. Rowlands's knee was injured, but not that UPS regarded her as disabled.
Ms. Rowlands points to two pieces of evidence to demonstrate that UPS wasn't only aware of her injury, but also regarded her as disabled and fired her for her disability: her testimony that she told Mr. Liskey that UPS terminated her in July 2012 because she was disabled, not for timecard fraud, and Mr. Harms's testimony that UPS terminated her because of her physical condition. As for Ms. Rowlands's testimony, she stated in her deposition that she told Mr. Liskey that UPS disciplined her in July 2012 because she was disabled, but her assertion as to UPS's motive isn't a fact and her speculations about UPS's motives can't resist summary judgment. See
Mr. Harms's testimony also doesn't demonstrate that UPS disciplined Ms. Rowlands because it regarded her as disabled. Mr. Harms testified that he believed UPS was trying to get rid of Ms. Rowlands because of her physical condition. When asked why he believed that, he testified that: "I think all of the things came together. You know, I think everything—I mean, I believe that they thought . . . this person, she is hurt quite often. She is . . . costing us money" [Doc. No. 58-3 at 93-94]. He offered no facts that could allow a reasonable jury to conclude that UPS disciplined Ms. Rowlands because it regarded her as disabled and his speculation about UPS's motives can't defeat summary judgment. See
UPS is entitled to summary judgment on Ms. Rowlands "regarded as" disability discrimination claims.
Ms. Rowlands next argues that UPS didn't reasonably accommodate her disability after she notified them of her condition. She contends that this claim survives because UPS didn't address it in its summary judgment motion, waiving any argument with respect to that claim. UPS argues its motion didn't address a failure to accommodate claim because neither the amended complaint nor the EEOC charge incorporated into the complaint stated such a claim.
Ms. Rowlands acknowledges that the amended complaint itself doesn't allege a failure to accommodate, but she contends that the EEOC charge attached to, and therefore incorporated into, the complaint properly states a failure to accommodate claim. The court disagrees. The relevant portion of the EEOC charge states that: "Complainant tried to engage in the interactive process and tried to get reasonable accommodations (such as wearing her knee brace, eliminating the existence of a long cord which [she] ultimately tripped over causing more serious injuries to her knee)", and that "she was retaliated against for having engaged in protected conduct—filing previous Charges of Discrimination and trying to engage in the interactive process/making requests for reasonable accommodations."
While Ms. Rowlands's EEOC charge alleges she sought reasonable accommodations, neither her complaint nor her EEOC charge allege UPS denied her request. Accordingly, her failure to accommodate claim was waived and UPS is entitled to summary judgment on that claim. See
Ms. Rowlands asserts that UPS retaliated against her because she sought reasonable accommodations for her knee impairment. Under the ADA, "[e]mployers are forbidden from retaliating against employees who raise ADA claims regardless of whether the initial claims of discrimination are meritless."
Like her Title VII, ADEA, and other ADA claims, Ms. Rowlands's retaliation claim fails because she hasn't identified a similarly situated employee who was treated more favorably. As already discussed, Ms. Rowlands can't met her burden to demonstrate that Mr. Gropengieser—or any other coworker—"engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them."
Because Ms. Rowlands can't establish a prima facie case, UPS is entitled to summary judgment on her ADA retaliation claim.
For the foregoing reasons, the defendant's motion for summary judgment [Doc. No. 50] is GRANTED. The Clerk is directed to enter judgment accordingly.
SO ORDERED.