SHARION AYCOCK, District Judge.
Plaintiff Annette Cleveland filed this suit against Defendant Mueller Copper Tube Company, Inc., asserting claims under the American's with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA). Mueller has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 as to all claims. For the following reasons, the Court finds the motion to be well taken.
Cleveland began working at Mueller's Fulton, Mississippi, copper tubing plant in 1996. Over the years, Cleveland worked in a variety of positions within the plant. In 2003, Cleveland injured her back in a lift truck accident. On July 1, 2005, Cleveland's doctor concluded she had reached maximum medical improvement (MMI) and assigned her a permanent work restriction due to her injuries. Specifically, her doctor stated she had a "permanent impairment of 2% to the body as a whole for degenerative spine level and facet arthropathy. She is limited to only occasionally performing repetitive twisting movements. She has a 40 pound lifting limit. These will both be permanent restrictions." At this time, Cleveland was working as an "ACR helper."
Shortly after Cleveland received her permanent restrictions, Mueller had a reduction-in-force. Mueller is a unionized company and its workers enjoy a collective bargaining agreement (CBA). Pursuant to the CBA, seniority is the first criteria to consider in cases involving layoff, recall or promotion. Furthermore, an employee who would otherwise be laid off is entitled to "bump" less senior employees. Laid-off employees are entitled to recall by seniority into available positions. Based on her seniority, Cleveland was first reassigned to a "lift truck position," and then to the position of "five-tier-operator." The position of five-tier-operator, which was classified as a "light work" position, entailed operating a control panel that controlled a conveyor system that moved storage bins containing coiled copper tube to different parts of the facility.
In September of 2009, Cleveland injured her ankle on the factory floor and was off work on workers compensation/FMLA leave from approximately September 28, 2009 through December 3, 2009. While Cleveland was out on leave, Mueller had another reduction-in-force which completely eliminated the shift that Cleveland worked on. Everyone working the shift was laid off, or reassigned if they had enough seniority to bump another employee. In total, fifty-six employees were laid off.
After Cleveland learned of the impending layoff, she put in a bid for a block-crane operator position. The block-crane operator uses an overhead crane to move copper tubing from one machine to another or to a staging area for shipping. Mueller classifies the position of block-crane operator as a "medium work" position. "Medium work" entails "[e]xerting 20 to 50 pounds of force occassionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects."
When Cleveland returned to work on December 3, 2009, she was informed by her union representative, Vincent Whitfield, that Mueller would not allow her to bid on the block-crane position because of her restrictions. Plaintiff then spoke with Tammy Webb, the Human Resources Manager, and Mike Simmerman, the Plant Manager. During this meeting, Simmerman and Webb told Cleveland that it did not appear her restrictions would allow her to perform the block-crane operator position. Webb and Simmerman asked Cleveland to return to her doctor to have her restrictions reevaluated or take a functional capacity exam (FCE). However, Cleveland did not want to return to the doctor who had placed her on permanent restrictions because "he told me the only way he could treat me was with narcotic drugs," and Cleveland had previously been "hooked on them" back in 2005. Webb and Simmerman gave her the name of a different doctor who could perform the FCE. However, after the meeting, Cleveland never saw a doctor or underwent an FCE. When asked why she didn't have her restrictions re-evaluated, Cleveland responded "I didn't think I needed to." According to Cleveland:
Cleveland was not awarded the block-crane operator position and was laid off on December 7, 2009. She received a letter from Mueller stating, in pertinent part:
On January 28, 2010, Cleveland filed a charge of discrimination with the EEOC asserting discrimination in violation of the ADA. The charge of discrimination alleges "Effective December 7, 2009, I was laid off. I was advised by the Human Resources Manager, Tammy Webb, that the company was laying me off because they were unable to accommodate the requirements of my permanent restrictions. My bid for a position that met the requirements of my restrictions was denied. . . ."
In late July or early August 2010, Mueller had another opening for a block-crane operator position. Cleveland inquired about bidding on the position, and was informed by the union that the only way she would receive the position would be to undergo an FCE. Cleveland finally agreed to undergo the FCE. Cleveland was evaluated on August 3, 2010 and August 31, 2010 by physical therapist Chan Brown. As part of his evaluation, Brown conducted a job site analysis during which he spent three hours observing Cleveland performing the duties of the block-crane operator.
According to Brown's analysis, "[t]he job requirement of block crane operator requires patient to be able to pull the boom, which was measured on four different occasions, with the first pull at 45 pounds, second at 100 pounds, third at 80 pounds, and fourth at 80 pounds. To clarify, this means 76 force pounds was utilized to break the friction on the boom. Pushing of the boom was measured three times at 80 pounds, 90 pounds, and 90 pounds. To clarify, this means 90 pounds of force was utilized to break friction for boom to return to normal position. Max pulling of straps around tubing bundles was measured at 200 force pounds during the job site analysis. According to patient's permanent restrictions of 40 pounds, as determined by Dr. Cicala, patient will be unable to perform this job secondary to the force pounds required to push the boom and pull the boom out as well as pulling on the straps." However, Brown concluded that, based on his testing, Cleveland "was able to perform all job-related activities safely with no deviations" and "should be able to return to return to work as a block crane operator working full duty." Mueller returned Cleveland to work as a block-crane operator on September 27, 2010.
Cleveland filed the instant suit on November 23, 2010, alleging that she had been discriminated against in violation of the ADA and the FMLA. Discovery has been completed, and Defendant Mueller now moves the Court, pursuant to Federal Rule of Civil Procedure 56, for summary judgment as to all of Plaintiff's claims.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant."
The Court is not to weigh the evidence or engage in credibility determinations. Anderson, 477 U.S. at 249, 106 S.Ct. 2505;
The ADA prohibits covered employers from "discriminat[ing] against a qualified individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112. Initially, the Court notes that both parties have briefed this case as a circumstantial evidence case utilizing the
Mueller first argues that Cleveland cannot show she is disabled within the meaning of the ADA. A plaintiff may establish that she is "disabled" within the meaning of the ADA by demonstrating "(A) a physical or mental impairment that substantially limits one or more 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(1). Here, Cleveland does not allege that she actually has a disability which substantially limits a major life activity as defined by section 12102(1)(A), but argues instead that Mueller "regarded her as having such impairment" under Section 12102(1)(C).
The ADA's definition of "disability" was substantially broadened by the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA"), effective January 1, 2009. "The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA." 29 C.F.R. § 1630.1 (2011). For "regarded as" claims, an individual is no longer required to demonstrate that the disability she is regarded as having is an actual qualified disability under the ADA or that it substantially limits a major life activity.
The Court finds that, assuming Cleveland can otherwise show that Mueller's failure to place her in the block crane position was a "prohibited action," there is sufficient evidence in the record from which a reasonable juror could conclude that Cleveland was "regarded as" having a disability, as defined by the ADAAA.
A "qualified individual with a disability" is "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." 42 U.S.C. § 12111(8). The term "essential functions" means the fundamental duties of the employment position the individual with a disability desires, but does not include the marginal functions of the position. 29 C.F.R. § 1630.2 (2011). Here, Mueller has produced competent summary judgment evidence in the form of a work-risk analysis prepared in 2005, and the job site analysis performed in 2010, that pushing and pulling the extension boom on the crane, and pulling the straps that secure the copper tubing to the crane, are essential functions of the crane-block operator position and fall outside Cleveland's permanent medical restrictions. Cleveland fails to dispute or otherwise raise a genuine dispute of material fact regarding this issue.
To avoid summary judgment on whether she is a qualified individual, a plaintiff must show (1) that she could perform the essential functions of her job in spite of her disability, or (2) that a reasonable accommodation of her disability would have enabled her to perform the essential functions of her job.
Mueller asserts that Cleveland was not offered the block-crane operator position because Cleveland's refusal to obtain a medical certification prevented Mueller from determining whether she could safely perform the job. The ADA allows employers to require employees to undergo medical examinations if they are: (1) job related, and (2) consistent with business necessity. 29 U.S.C. § 1211(d)(4)(A);
Plaintiff first argues
Testimony cited by Plaintiff from Vincent Whitfield, the union grievance chairman, is similarly unavailing. Whitfield testified as follows:
This testimony lacks foundation,
Cleveland also alleges that in January 2010, she sought a position as a bench-crane operator, another medium-duty position, but the job was given to Troy Underwood, an employee with less seniority who had allegedly just returned to work with permanent lifting restriction of 8-15 pounds. Plaintiff has not produced any documentation or a declaration from Underwood to support this contention. Instead, Plaintiff relies on her deposition testimony and that of Vincent Whitfield. Plaintiff asserts in her deposition that Underwood told her he was under a five pound lifting restriction. However, "This— the statement of another offered for the truth of the matter asserted, constitutes hearsay—Deposition hearsay is not competent summary judgment evidence."
Whitfield testified that he had in the past examined Underwood's medical records, and "I don't know exactly what his weight limit was, but I know his restriction was — it had something to do with his picking or lifting or pulling. I know that for sure . . . I want to say — I want to say it's anywhere from eight to fifteen pounds. That's what I want to say it is." Whitfield also stated he was not positive what Underwood's restrictions were and "[he] would have to look in his files to see." In response, Mueller has submitted a declaration from Michael Baum, the plant manager, who avers that the medical file for Troy Underwood contains no work restrictions, although in March of 2005 he was restricted to only performing "medium-duty" work. However, Baum states that at no time was Underwood ever placed in a position exceeding his restrictions. Even viewing this testimony in the light most favorable to Cleveland, Whitfield's recollection of Underwood's restrictions is insufficient to whether to raise a genuine issue of material fact as to Cleveland's qualifications for the block-crane operator position.
Cleveland also argues that "Mueller had allowed Cleveland to work as a crane operator and block line lift truck [sic] between 2005 and 2009, even though these were medium classification jobs." However, the deposition testimony cited actually contradicts this contention.
Cleveland also points out numerous other allegedly disabled employees who were accomodated by Mueller. Cleveland argues that "Mueller had made accommodations for numerous other employees who had far greater restrictions than Cleveland." However, these employees had dissimilar impairments from Cleveland and worked in dissimilar positions. The Court fails to see how evidence that Mueller accommodated other disabled employees is evidence that it discriminated against Cleveland due to her disability.
Cleveland also implies in her brief that Mueller should have placed her in other positions, such as a maintenance job Mueller allegedly "created" to accomodate Mike Graham, another disabled employee. However, an employer is not required to create a new job to accommodate.
The undisputed facts in this case show that Mueller had an objectively reasonable medical basis for asking Cleveland to perform the FCE before placing her in a position with lifting requirements which violated her permanent restrictions. The record supports Mueller's argument that the FCE was both job-related and consistent with business necessity. Cleveland has not presented the Court with any authority holding that the ADA requires an employer to disregard an employee's permanent medical restrictions. Because Cleveland has failed to direct the Court to more than a mere scintilla of evidence to show that she was qualified for the position in light of her permanent medical restrictions, and refusal to undertake an FCE, she has failed to establish a genuine issue of material fact and Mueller is entitled to summary judgment as to Cleveland's ADA claim.
Alternatively, the Court finds that Mueller is entitled to summary judgment because it has presented un-refuted evidence that, based on the information available to it at the time, placing Cleveland in the block-crane operator position would have constituted a direct threat to her safety.
Here, Mueller argues it attempted to undertake an "individualized assessment" of Cleveland's ability to safely perform the block-crane operator position by requesting that she perform an FCE, but Plaintiff refused to participate. When an employee requests an accommodation because of a disability, the ADA envisions an "informal, interactive process" between the employer and the employee to attempt to craft a reasonable accommodation.
Plaintiff also asserts that Mueller retaliated against her for taking FMLA leave. The Fifth Circuit applies the McDonnell-Douglas framework to analyze retaliation claims under the FMLA.
Here, Mueller fails to dispute that the Cleveland has satisfied the first or second elements of her prima facie case. Regarding the third element, Cleveland relies on the temporal proximity between her FMLA leave and her layoff as evidence of a causal link between the two.
Mueller asserts that Cleveland did not receive the block-crane operator position because she failed to undergo an FCE or obtain a doctor's certification that she could perform the job without violating her medical restrictions. The Court finds this to constitute a valid, non-retaliatory reason.
Mueller having articulated a non-retaliatory reason for the adverse employment action, the burden shifts back to Cleveland to offer evidence which would allow a reasonable jury to conclude that Mueller's stated reason is either a pretext for FMLA retaliation, or that retaliation for exercising her rights under the FMLA was a motivating factor for the decision. In an attempt to do so, Cleveland offers arguments identical to those advanced in support of her ADA claim. For substantially the same reasons that the Court finds these arguments fail to demonstrate that Cleveland was a qualified individual for the block-crane operator position, the Court finds these arguments fail to show that Mueller's reason for not awarding her the position was a pretext for FMLA retaliation, or that FMLA retaliation was a motivating factor in the decision. The Court additionally notes that Troy Underwood, one of Plaintiff's putative comparators, was himself returning from FMLA leave when he was offered the bench-crane operator position in January 2010. After reviewing the entire record, the Court finds that Plaintiff has failed to provide any evidence from which a reasonable juror could conclude that her taking FMLA leave, rather than her refusal to obtain medical certification or undergo an FCE, was the reason for her failure to obtain the block-crane operator position and subsequent layoff. Therefore, Mueller is entitled to summary judgment on this issue.
Defendant's motion for summary judgment is GRANTED, Plaintiff's claims are DISMISSED, and this case is CLOSED. Pursuant to Rule 58, a separate judgment shall issue in accordance with this opinion.
SO ORDERED.
