Opinion
No. 8:98CV494.
January 2000.
MEMORANDUM AND ORDER
I. Introduction
This matter is before the Court on defendant's motion for summary judgment (Filing No. 22). Defendant contends that there are no material facts in dispute, as plaintiff cannot demonstrate that he was disabled within the meaning of the American Disabilities Act, (ADA), 42 U.S.C. § 12101, et seq.; that plaintiff cannot demonstrate that he is qualified to perform his essential job functions as Senior Manager; that plaintiff cannot demonstrate that he suffered adverse employment action because of his disability; that plaintiff cannot establish his claim of breach of contract; and that plaintiff cannot establish a legal basis for punitive damages. Plaintiff asserts that there is ample evidence to support these claims and asks this Court to deny defendant's motion for summary judgment.
II. Standard for Summary Judgment
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate 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 judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing the absence of a genuine issue of material fact, which can be done by pointing to the lack of evidence to support an essential element of the nonmoving party's claim. Celotex Corp. V. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has met its burden, the nonmoving party must then set forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). When viewing the evidence, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party. Adickes v. S.H. Kress Co ., 398 U.S. 144, 158-59 (1970).
The trial court's "function at the summary judgment stage is not to weigh the evidence, but to determine whether there is a genuine issue for trial." Rayes v. Eggars, 838 F. Supp. 1372, 1377 (D.Neb. 1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The Eighth Circuit has recognized that primarily legal issues are amenable to summary disposition. See, e.g., Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995); Mumford v. Godfried, 52 F.3d 756, 759 (8th Cir. 1995); and Crain v. Board of Police Comm'r, 920 F.2d 1402, 1405-06 (8th Cir. 1990). Therefore, because some of the issues presented here for resolution are essentially legal in nature, they are subject to summary disposition.
III. Factual Background
The plaintiff, Clyde Kellogg, was employed by the defendant, Union Pacific Railroad, for approximately 26 years. His job positions included switchman/brakeman in 1973, a conductor in 1978, and he moved into management in 1981. He became a Senior Manager of Intermodal Service Delivery in 1996, overseeing all freight traffic for the defendant's biggest client, American Presidential Lines ("APL"). He was stationed out of and began working in the Harriman Dispatch Center in Omaha, Nebraska, in 1994. From this location, the Union Pacific oversees the operation of the railroad in 23 different states. As senior manager, plaintiff was on call 24 hours per day. He wore a beeper at all times, worked 60-80 hours per week at the office, took numerous calls at home for emergencies, worked many of his days off, and monitored traffic from his computer at home (Ex. 1, Kellogg Depo. 21-23, 27). The defendant acknowledges that senior managers are inherently required to work longer hours and remain available to take customer calls at any time (EX's. A, D, E, and F). Plaintiff contends that his job was an incredibly stressful one. It appears that the defendant had knowledge of the stress experienced by those working in the Harriman Center. A memo from James M. Horrocks, M.D., a fitness consultant for the defendant, stated ". . . the pressure at the dispatch center is particularly high at this time." (Ex. 4, dated 11/12/97).
On September 2, 1997, plaintiff failed to respond to questions and had a blank stare. Believing that the plaintiff was having a heart attack or a stroke, an ambulance was called. Plaintiff was rushed to the hospital, and it was later determined that the plaintiff suffered a severe panic attack. The doctors diagnosed him with major depression and anxiety (Ex. 6, Davis Depo. at 18; Ex. 7, Medical Records.)
Plaintiff was referred to the mental health unit at Richard Young. He was then referred to a psychiatrist, Rodney Nitcher, and he also received counseling from a psychologist, Dale Halpain, Ph.D. He took medication, including Wellbutrin, Paxil and Klonopin, for his depression and anxiety. On September 29, 1997, plaintiff was released to return to work, however, he was restricted to a 40-hour work week and to working during daylight conditions (Ex. H). Defendant contends that it allowed this accommodation, because of the representation from plaintiff's doctor that plaintiff should be able to resume his regular job duties within six weeks (Exhibit J).
Plaintiff was allowed to receive short-term disability benefits by the defendant, and initially the defendant accommodated the plaintiff's work restrictions. The accommodations lasted for approximately one month, when plaintiff had to take additional time off of work so the doctors could adjust his medications. Plaintiff then attempted to return to work with the same restrictions as before. His boss, Mr. Byron Schroeder, indicated that if these restrictions were permanent, plaintiff would not be able to return to his job.
According to the deposition testimony, Mr. Schroeder made an on-the-spot decision that Union Pacific could not accommodate plaintiff's restrictions (Ex. 8, Schroeder Depo. 36-40). Plaintiff contends that Mr. Schroeder did not consult anyone else nor did he consider any other alternatives (Ex. 8, Schroeder Depo. 36-42). Defendant argues that it could not grant these restrictions without waiving an essential function of the senior manager's position, being available to the customer's needs at any time.
Plaintiff then sent letters to the defendant asking that he be allowed to return to work (Ex. 9 and 10). Seven weeks later, on May 5, 1998, plaintiff received from the defendant a standard letter informing him about the short-term disability benefits.
Plaintiff was allowed to remain on medical leave for 18 months. When plaintiff's benefits under the Long Term Disability Income Plan expired, his employment was terminated (Exs. A and L). Plaintiff applied for eight other positions at Union Pacific but was not offered employment for any of the positions for which he applied.
Plaintiff then filed a charge with the Nebraska Equal Opportunity Commission (NEOC) for violation of the Americans with Disabilities Act. The NEOC issued a right-to-sue letter.
IV. Discussion
A. Estoppel
The Court must first address a preliminary issue before addressing the substantive issues alleged in the motion for summary judgment. Plaintiff contends that at all times prior to the filing of this lawsuit, including the NEOC investigation, defendant never once raised an issue as to whether the ADA was applicable to this case. However, defendant does raise the defense in this lawsuit. According to the plaintiff, during the NEOC investigation, defendant raised only two defenses: (1) that extending the 40 hours a week accommodation would not be a reasonable accommodation; and (2) that when plaintiff applied for other positions at Union Pacific which he did not receive, there was no discrimination because the defendant just chose better qualified candidates. Not once, states the plaintiff, did the defendant argue that the plaintiff was not covered by the ADA. (See Ex. 15, Response to NEOC charge.) Based on the above, plaintiff urges this Court to apply the doctrine of estoppel to the defendant based on its initial accommodations and its failure to raise the issue at the NEOC level.
The plaintiff offers no support for his contention that the defendant is required to allege all defenses at the NEOC stage of the proceedings. In any event, the Court has reviewed the NEOC charge and response, as well as the defendant's answer and the facts and evidence submitted with this motion, and is of the opinion that the defendant has raised the issue in a timely manner.
B. Disability Claim Under ADA
Defendant contends that plaintiff is unable to make out a prima facie case of discrimination under the ADA. The burden is on the plaintiff to show that (1) he was disabled within the meaning of the ADA; (2) that he was qualified to perform the essential functions of the job with or without reasonable accommodations; and (3) he suffered adverse employment action because of the alleged disability. See, Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir. 1998); Webb v. Mercy Hosp., 102 F.3d 958, 959-60 (8th Cir. 1996). Summary judgment is proper if plaintiff fails to establish these claims. Wilking v. County of Ramsey, 153 F.3d 869, 873 (8th Cir. 1998). The burden then shifts to the defendant to articulate a legitimate reason for its decision to refuse to allow plaintiff to continue his position, and if the defendant is able to meet this burden, then the plaintiff must then demonstrate that discrimination was the real reason for the employment decision. Nesser, 160 F.3d at 445.
1. Whether plaintiff is a "disabled person" under the ADA
Defendant contends that plaintiff cannot show that he is disabled within the meaning of 42 U.S.C. § 12102. "Disability" is defined under the ADA as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such impairment, or (3) being regarded as having such an impairment. 42 U.S.C. § 12101(2); Cody v. CIGNA Healthcare, 139 F.3d 595, 598 (8th Cir. 1998) . Thus, there are three ways a person can be disabled under the ADA: "actually," "record of," or "regarded as" disability. Under the "actually" disabled criterion plaintiff must show that he has an impairment that substantially limits a major life activity. Miller v. City of Springfield, 146 F.3d 612, 614 (8th Cir. 1998); Land v. Baptist Med. Ctr., 164 F.3d 423, 425 (8th Cir. 1999); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1206 (8th Cir. 1997). The ADA concerns itself with limitations that are substantial in nature. Albertsons, Inc. V. Kirkingburg, ___ U.S. ___, 119 S.Ct. 2162, 2168 (1999). For purposes of this motion, defendant is conceding that the plaintiff has a mental impairment (Brief of defendant, page 9). However, defendant argues that plaintiff's major life activities have not been significantly altered. "Major Life Activities" has been defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i); Aucutt v. Six Flags over Mid-Am, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996); Montandon v. Farmland Indus., Inc., 116 F.3d 355, 361 (8th Cir. 1997). The only major life activity plaintiff has claimed to be substantially limited in is working (Plaintiff's brief, at page 12).
According to the EEOC,
With respect to the major life activity of working — (1) the term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3).
In deposition testimony plaintiff concedes that he is qualified to hold numerous jobs at Union Pacific. Further, he states that he can perform all of the essential job functions of the senior manager position he formerly held and is not limited in other major life activities (Deposition of Clyde Kellogg, pages 52-62). The primary restriction alleged by plaintiff is the number of hours that he is able to work and a need to work in daylight hours, and he also testified that he would not want to work as a train dispatcher (an 8-hour day position), because the position would be stressful (Deposition of Clyde Kellogg, pages 59-63).
In the case of Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir. 1999), the Court held:
"Not every physical or mental impairment `counts' for ADA purposes, because most disabilities from which people suffer (bad vision, impaired hearing, arthritic joints, diabetes) do not have a substantial enough effect on their major life activities." ( Citing Dalton v. Subura-Isuzu Automotive, Inc., 141 F.3d 667, 675 (7th Cir. 1998)).
After reviewing the case law, the Court finds that simply being limited to a 40-hour work week and during daytime hours is not sufficient to find a "disability" as intended under the ADA. See Tardie v. Rehabilitation Hosp., 168 F.3d 538, 542 (1st Cir. 1999) (inability to work long hours held not to be an impairment where there were ample opportunities for jobs that only required a 40-hour work week); Shpargel v. State Co., 914 F. Supp. 1468, 1474 (E.D.Mich. 1996) (same); Berg, 169 F.3d at 1145; Muthler v. Ann Arbor Mach., Inc., 18 F. Supp.2d 722, 729 (E.D.Mich. 1998) (employee limited to 40-hour week because of heart condition did not have a substantial limitation on life activity of working); Brennan v. National Telephone Directory Corp., 850 F. Supp. 331, 343 (E.D.Pa. 1994) (inability to work overtime hours does not make one disabled).
The expert opinion of James T. Rogers, C.P.C., who has thirty years of experience in vocational rehabilitation and job placement, is of the opinion that the limitations imposed by the physicians would have a "significant and seriously deleterious effect on his potential for employment in a broad range of jobs across many categories of work, particularly managerial, professional, technical and skilled craft work positions and not merely a narrow or single class of jobs." (Exhibit 18). However, the contentions set forth in this affidavit are of a conclusory nature. Mr. Rogers offers no factual basis for the assertions. Because Mr. Rogers offers no specific facts to support his conclusions, his affidavit does not meet the requirement of Fed.R.Civ.P. 56(3). Doren v. Battle Creek Health System, 187 F.3d 595, 598 (6th Cir. 1999) (conclusory affidavit regarding physical impairment that allegedly limited major life activities not sufficient to defeat motion for summary judgment standard). In fact, Mr. Rogers' Vocational Assessment fails to even discuss a range of jobs that plaintiff can no longer perform. On the contrary, the assessment focuses rather exclusively on the fact that Union Pacific failed to accommodate plaintiff by offering him other types of jobs at Union Pacific. (Vocational Assessment, at pages 5-6). A reading of the Vocatational Assessment only supports the conclusion that plaintiff is capable of a working a broad range of jobs. While I agree with Mr. Rogers that it is very difficult to determine why such an outstanding employee with substantial experience at the railroad was not supported to a greater extent in finding him a new position, this failure on the part of Union Pacific does not constitute a violation of the ADA. Consequently, the Court finds that the defendant has proffered sufficient evidence to show that the plaintiff is not disabled within the meaning of the ADA, and the plaintiff has failed to meet his burden of showing that he is disabled within the meaning of the ADA.
2. Whether the plaintiff was treated as disabled under the ADA
Defendant contends that plaintiff cannot show he was treated or regarded as disabled by Union Pacific, and defendant further argues that plaintiff must show that Union Pacific perceived the impairment and considered it to be substantially limiting of a major life activity. Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). The defendant contends that it believed that the plaintiff was limited only in the number of hours he could work and to daylight hours, not that plaintiff was significantly limited in any life activity. This perception by the defendant was based on Dr. Grosbach's restrictions.
Plaintiff states that defendant's actions and inactions support his contention that defendant believed he was disabled. First, argues plaintiff, defendant failed to raise the disability issue at the EEOC level; second, the Union Pacific manager of EEO Compliance put in writing that they were accommodating plaintiff; and third, defendant authorized both short and long term disability benefits for the plaintiff. All of the above arguments relate to conduct concerning the particular job the plaintiff had previously held.
The Court finds that there is no evidence that the defendant considered the plaintiff to be "disabled" simply because the plaintiff had work restrictions that rendered him unable to perform this particular job. See Baulos v. Roadway Exp. Inc., 139 F.3d 1147, 1154 (7th Cir. 1998) (employer does not regard employee as disabled simply because the employee cannot perform that particular job); Smith v. City of Des Moines, 99 F.3d 1466, 1474 (8th Cir. 1996) (city fire captain with 33 years of experience who could not pass physical tests not regarded by employer as disabled).
Plaintiff is unable to meet the test set forth in Wooten, and therefore is unable to present evidence sufficient to show that plaintiff was treated as disabled by the defendant.
3. Record of disability
In order for the plaintiff to show a record of disability, he must establish that his past record of mental impairments substantially limited at least one major life activity. Land, 164 F.3d at 425. As previously stated, plaintiff's deposition testimony establishes that he was not impaired in other life activities. In addition no evidence has been presented that this plaintiff had a record of a mental impairment that substantially limited a major life function. 29 C.F.R. § 1630.2(k) and (l); Burch v. Coca-Cola Co., 119 F.3d 305, 321 (5th Cir. 1997) (hospitalization alone is insufficient to create a record of disability absent a history of substantial limitation of a major life activity).
4. Conclusion — "Disability"
I find that the plaintiff has not met his burden of coming forward with credible evidence that he was disabled under any of the above three criteria. Thus, plaintiff cannot meet the first prong of his prima facie case, that he is disabled within the meaning of the ADA.
C. Essential Functions of the Job/Adverse Employment Action/Punitives
Because I find that plaintiff has not met his burden of showing credible evidence that is subject to a material dispute for trial with regard to the issue of whether he is "disabled," I need not address whether plaintiff has made the required showing with regard to the prima facie elements of essential functions of the job and of adverse employment action. In addition, there is no need to address the punitive damages claim.
5. Contract claim
On or about January 17, 1992, plaintiff and defendant entered into a Release and Settlement Agreement resolving plaintiff's claims for injuries arising out of an accident which occurred near North Platte, Nebraska, on or about June 8, 1991. Plaintiff was a conductor/brakemen at the time of the accident and claimed that the injuries he suffered in the accident totally and permanently disabled him from returning to work as a conductor/brakemen. In his complaint plaintiff alleges that the defendant has breached this contract and that the defendant "is obligated to employ the plaintiff in the capacity of Manager of Service Scheduling." Complaint 18. Defendant disagrees and contends that the Release and Settlement Agreement is not an employment contract that somehow guarantees the plaintiff a permanent position for life.
The clause in question states:
CLYDE MICHAEL KELLOGG will maintain an employment relationship with Union Pacific in a nonagreement position as a Manager of Service Scheduling and Claimant's seniority rights will be unaffected.
(Filing No. 1, Attached Exhibit 3, Page 3, IV).
The Court has thoroughly reviewed the Release and Settlement Agreement. First, the clause set forth above states nothing about duration of the position. Further, defendant contends, and plaintiff offers no evidence to the contrary, that all nonagreement employees are at-will employees. Third, an additional clause in the agreement states: "Payment of the stated amounts is the sole consideration for the execution of this Agreement. . . ." (Filing No. 1, Exhibit 3, Page 2, D). Nowhere in the agreement does it state that plaintiff is being offered a permanent, guaranteed position as a result of his injuries. The Court also notes that plaintiff accepted other promotions within the company and voluntarily left his position as Manager of Service Scheduling.
The Court must determine whether the Release and Settlement Agreement is ambiguous. Daehnke v. Nebraska Dept. of Soc. Serv., 557 N.W.2d 17 (Neb. 1996). A contract is deemed to be ambiguous if it is susceptible to reasonable conflicting interpretations or meanings. See, e.g., McCormack v. Citibank, N.A., 100 F.3d 532, 538 (8th Cir. 1996). The Court will not use extrinsic evidence to explain the meaning of the Release and Settlement Agreement. Resolution Trust Corp. V. Management, Inc., 25 F.3d 627, 630-31 (8th Cir. 1994). An unambiguous contract that is of a legal nature can be resolved by summary judgment. McCormack at 538. The fact that the opposing parties suggest opposing meanings for the disputed contract does not necessarily mean the contract is ambiguous under Nebraska law. McCormack at 538.
The Court finds that there is no language that the Release and Settlement Agreement was intended to be a contract of employment. The plain language of the contract is to the contrary. There is simply no language to support a claim that this was meant to be an employment position for life. As a result, the Court hereby finds that the contract language is clear and that summary judgment on this issue is appropriate.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:
1. That plaintiff's motion to supplement index and motion to strike defendant's supplemental exhibits (Filing No. 47) is granted as to the motion to supplement and denied as to the motion to strike.
2. That defendant's motion for summary judgment (Filing No. 22) should be and hereby is granted.
3. That this case should be and hereby is dismissed and a separate judgment will be entered herein.