Opinion
Civil Action No. 00-30219-FHF.
April 4, 2002
MEMORANDUM AND ORDER
I. INTRODUCTION
The plaintiff, Stanley J. Lakota, Jr. ("Lakota"), brings this diversity action against the defendant, Sonoco Products Company, Inc. ("Sonoco"), alleging handicap discrimination and failure to provide a reasonable accommodation pursuant to Mass. Gen. Laws ch. 151B, § 4(16) ("chapter 151B"). Sonoco now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Because Lakota does not proffer sufficient evidence to support a reasonable inference that he is disabled within the meaning of chapter 151B, the Court will grant Sonoco's motion.
II. BACKGROUND
"Consistent with the conventional summary judgment praxis, [the Court] recount[s] the facts in the light most hospitable to the [nonmovant's] theory of the case, consistent with record support." Gillen v. Fallon Ambulance Serv., Inc., No. 01-1642, 2002 WL 398480, at *1 (1st Cir. Mar. 19, 2002). Lakota worked as a materials handler at Sonoco in Holyoke, Massachusetts between August 4, 1996 and November 28, 1997. He is afflicted with the condition "deep vein thrombosis," and was originally diagnosed with the condition in 1994. Deep vein thrombosis implies a low-grade inflammation of the vein and a chronic blood clot. In Lakota's case, the blood clot is in his leg. Between September 30, 1997 and July 7, 2000, he was treated by Dr. Paul Berman ("Dr. Berman"), his primary care physician. At his first appointment with Lakota on September 30, 1997, Dr. Berman prescribed the medication Coumadin, which is used to thin the blood and prevent progression of the blood clot. In conjunction with this medication, Lakota took regular blood tests under Dr. Berman's care in order to measure whether his blood was too thin or too thick. The blood tests yield what is referred to as an "INR" score. The ideal INR is between 2 and 3. A score below 2 reflects that the blood is too thick, and the patient is at a greater risk for blood clotting. By contrast, if the score is higher than 3, the blood is too thin and there is some concern for bleeding. Where the score is higher than 5, there is a danger of spontaneous hemorrhage. Nevertheless, Dr. Berman testified that only INR scores higher than 6 would interfere with work or be a cause for serious concern.
Although the plaintiff refers to his condition as "phlebitis," the medical expert in this case testified that the term "deep vein thrombosis" more precisely reflects Lakota's condition. Accordingly, the Court will use the term "deep vein thrombosis."
During the time period relevant to this action, Lakota took several blood tests. On October 30, 1997, Lakota received an INR score of 3.86. Dr. Berman recognized this score as "too high," and altered the dosage of Coumadin correspondingly. On November 3, 1997, Lakota tested at 1.92, which Dr. Berman characterized as "not really" a concern. On November 18, 1997, Lakota received an INR score of 1.5, which is on the low end of the range, reflecting thicker than normal blood. Accordingly, Dr. Berman increased Lakota's dosage of Coumadin, and asked Lakota to check back with him in one month. On December 15, 1997, and December 26, 1997, Lakota's INR score fell within the "normal" range between 2 and 3. Dr. Berman testified that between September 1997 and March 1998, Lakota's blood was never "dangerously thin," and that he never recommended that Lakota stay home from work.
In September 1997, Lakota met with Brian Hunt ("Hunt"), his plant manager, to request several weeks of leave from work for medical purposes, including stomach and oral surgery. On October 30, 1997, Lakota received a leave of absence for the weeks of November 3, 1997 and November 10, 1997. Lakota was scheduled to return to work on November 17. On November 17, Lakota left a voice mail message for his immediate supervisor, John McGowan ("McGowan") indicating that he would not be able to work because he had a doctor's appointment on November 19, 1997, and that he would contact McGowan after the appointment. Two days later, Lakota states that he telephoned McGowan and informed him that his blood was dangerously thin. Lakota further states that he informed McGowan that he had another doctor's appointment on December 8, and that he would not return to work until after that date.
Apparently, McGowan understood the conversation differently. He stated that Lakota informed him only that he had the flu, and that he would return to work on November 24. Accordingly, McGowan reported to Hunt that Lakota would return to work on November 24, 1997. However, Lakota failed to attend work or contact anyone at the plant between November 24 and November 26, 1997. Hunt subsequently mailed a letter to Lakota dated December 3, 1997, indicating that he was terminated for missing work on three consecutive days without notifying the company, receiving authorization, or providing a sufficient explanation.
Lakota filed a complaint against Sonoco in Hampden Superior Court on December 8, 2000, alleging that Sonoco discriminated against him under Massachusetts law by terminating him based on an alleged handicap, and failed to provide him with a reasonable accommodation. Sonoco removed the action to this Court on December 28, 2000, pursuant to 28 U.S.C. § 1332.
III. STANDARD OF REVIEW
The Court will grant a motion for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no sufficient issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine if "the evidence is such that a reasonable party could return a verdict for the nonmoving party," and a fact is material where it "might affect the outcome of the suit under the governing law." Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993), cert. denied, 511 U.S. 1126 (1994). To defeat a properly supported motion for summary judgment, "the nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the nonmoving party." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993) (quotations omitted), cert. denied 511 U.S. 1018 (1994).
IV. DISCUSSION
Sonoco now moves for summary judgment on the grounds that (1) Lakota is not handicapped within the meaning of chapter 151B; (2) there is no evidence that he was fired on account of his handicap; and (3) there is no evidence that he was not provided with a reasonable accommodation. Because the Court concurs with Sonoco's assessment that Lakota cannot show a genuine issue of material fact as to whether he has a handicap under chapter 151B, the Court need not address the remaining issues.
Mass. Gen. Laws ch. 151B, § 4(16) prohibits an employer from discriminating against a qualified handicapped person who is capable of performing the essential functions of the position at issue with reasonable accommodations. Not all physical impairments, however, rise to the level of a handicap. As defined by chapter 151B, the term "handicap" means: "(a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment." Mass. Gen. Laws ch. 151B, § 1(17). Lakota does not argue that he is handicapped because he has a record of having such impairment or is regarded as having such impairment. Therefore, he must show that his impairment substantially limited a major life activity.
Sonoco does not argue that Lakota does not have an "impairment," as required by chapter 151B. Thus, the Court will assume, without deciding, that Lakota's condition constitutes an "impairment." See London v. Kateri Residence, No. 95-3116-RLE, 1998 WL 644745, at *8 (S.D.N.Y. Sept. 21, 1998) ("phlebitis may certainly be described as a physical impairment. . . .")
The term "major life activities" includes functions such as "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." Mass. Gen. Laws ch. 151B, § 1(20). The phrase "substantially limits" means that "the impairment prohibits or significantly restricts an individual's ability to perform a major life activity as compared to the ability of the average person in the general population to perform that activity." Kuhn v. The Kimball Cos., No. 95-SEM-0085, 2001 WL 1805178, at *8 (MCAD Dec. 24, 2001) (quoting MCAD Handicap Guidelines at § II, A(6)). Moreover, the Supreme Court has recently instructed that "[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 122 S.Ct. 681, 692 (2002). Thus, the determination "is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual." Id. at 692 (quotations and ellipses omitted). Finally, to determine whether an individual's impairment substantially limits a major life activity, EEOC regulations provide courts with the following factors to consider: (1) the duration or expected duration of the impairment; (2) the nature and severity of the impairment; and (3) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. Gillen, 2002 WL 398480, at *6.
"Because of the similarity between the Federal and the State [discrimination] statutes, the Federal cases are most helpful in the resolution of cases involving [handicap discrimination pursuant to chapter 151B]." Hallgren v. Integrated Fin. Corp., 679 N.E.2d 259, 260 (Mass.App.Ct. 1997); see Gillen, 2002 WL 398480, at *5, n. 5.
Lakota argues that, because of his condition, at times his blood may be too thick, and at other times, too thin. During periodic "flare-ups" of this condition, his blood may become too thin, and there is a danger of bleeding or spontaneous hemorrhaging. At such times, he is substantially limited in his ability to engage in major life functions such as grooming or working. At other times, he alleges he is limited in his ability to sleep. However, Lakota's counsel essentially conceded at oral argument that he can offer no medical evidence to show that Lakota has a handicap. Although not dispositive, "[n]umerous courts have held that a lack of medical testimony should be a factor cutting against a plaintiff's claim of disability." Alitovski v. Elgin Corrugated Box Co., No. 99-C-5018, 2001 WL 185479, at *3 (N.D.Ill. Feb. 26, 2001) (collecting cases). This is particularly true where, as here, the alleged handicap is not readily within the comprehension of a jury "that does not possess a command of medical or otherwise scientific knowledge." Marinelli v. City of Erie, 216 F.3d 354, 360 (3d Cir. 2000) (holding that arm and neck pain arising from a vehicular collision is injury within comprehension of jury, and thus does not require expert testimony) (collecting cases); see Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996) (stating that "[s]ome long-term impairments would be obvious to a lay jury, e.g. a missing arm. . . ."). In the Court's view, the question of whether deep vein thrombosis constitutes a handicap does not obviously fall within the ken of a lay jury, unlike the cases of a missing arm or pain in the arm and neck. Accordingly, the Court will consider the lack of medical evidence to support Lakota's position on this issue as a factor weighing against his claim. See Marinelli, 216 F.3d at 360-61.
In fact, the only expert medical testimony in the record is damaging to Lakota's case. For instance, Dr. Berman, Lakota's treating physician, never recommended that Lakota take a leave of absence from work, and observed that his blood levels were never "dangerously thin" while he was under Dr. Berman's care. His observations are amply supported by the results of Lakota's blood tests, which show that his INR score never reached between 6 and 8. Lakota's highest INR score during this time was 3.86; Dr. Berman noted that he considered the score to be high, but stated also that he would not have taken him out of work with that score. See Deposition of Dr. Berman, at 62. He elaborated further: "As far as I'm concerned, I don't worry about them until [they're] 6,7,8. I mean, a 3.86 is, you know, just hold the Coumadin and it will be down in a day or so." Id. Dr. Berman's testimony, therefore, belies Lakota's claim that his condition substantially limited his ability to work during the relevant time period.
Lakota attempts to counter Dr. Berman's testimony through his own testimony and affidavits. Much of this testimony, however, does not provide a basis for a jury to find that he has a handicap. For instance, Lakota offers his recollection that Dr. Berman told him that his blood was "dangerously thin," and gave him strict instructions "to avoid any situation where I could accidentally cut myself." See Affidavit of Stanley J. Lakota, at ¶ 9. This statement, however, constitutes inadmissible hearsay, and therefore cannot be considered by this Court on a motion for summary judgment. See Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998). In addition, Lakota asks this Court to consider his own medical conclusions contained in his deposition testimony, such as: "If the blood is too thin and I cut myself then I'll bleed to death." See Deposition of Stanley Lakota, at 16. This statement, however, is merely conclusory and therefore insufficient, by itself, to withstand Sonoco's motion for summary judgment. See Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997).
Keeping in mind the absence of any medical evidence to support Lakota's claim that he is handicapped, the Court now turns to analyze the three factors provided by the EEOC.
1. Duration or Expected Duration of Impairment
"The term 'duration' refers to the length of time an impairment persists." Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 871 (2d Cir. 1998) (ellipses omitted). It could be argued that this factor weighs both for and against a finding of disability; ultimately, however, this Court concludes that it weighs against Lakota's claim. On the one hand, Lakota's deep vein thrombosis appears to have no cure, and may trouble him for the duration of his life. On the other hand, Lakota alleges that his condition substantially limits his ability to perform various major life activities only during periodic "flare-ups" of the condition. Indeed, Lakota states that since he was diagnosed with the condition in 1994, he has endured only two flare-ups that required hospitalization and bed rest: in February 1994, and in November 1997. See Memorandum in Opposition to Defendant's Motion for Summary Judgment, at 8. There is no record evidence as to the duration of the first alleged flare-up. As to the second alleged incident, however, Lakota states that it was first diagnosed on October 31, 1997, and lasted until December 8, 1997, for a total of approximately five weeks. See Affidavit of Stanley J. Lakota, ¶¶ 9, 13. Thus, "[t]he relatively short term impact resulting from the impairment . . . weighs against a finding of substantial limitation. While the condition itself may [be] permanent (and recurring), the symptoms that resulted varied in intensity and were at times completely absent." London v. Kateri Residence, No. 95-3116-RLE, 1998 WL 644745, at *8 (S.D.N.Y. Sept. 21, 1995) (plaintiff with phlebitis not substantially limited under ADA where "episodes" occurred "every one or two years," and doctor testified that phlebitis "would clear up within several months of its initial appearance"), aff'd 182 F.3d 900 (2d Cir. 1999); see Ryan, 135 F.3d at 871 (plaintiff with colitis not substantially limited where condition is "symptomatic only at certain times, and can be asymptomatic for long periods").
2. Nature and Severity of Impairment
The regulations also call on the courts to consider the severity and nature of the impairment. Gillen, 2002 WL 398480, at *6. The Court will consider the nature and severity of Lakota's condition on his ability to work, stand, sleep, and groom himself.
a. Working
With regard to the major life activity of working, "the Supreme Court has determined that the statutory phrase 'substantially limits' requires that, at a minimum, plaintiff allege[s] that [he is] unable to work in a broad class of jobs." Whitney v. Greenberg, Rosenblatt, Kull Bitsoli, P.C., 115 F. Supp.2d 127, 132 (D.Mass. 2000). In other words, "the mere inability to perform a single particular job will not suffice to establish a substantial limitation with respect to working." Id. "The EEOC further identifies several factors that courts should consider when determining whether an individual is substantially limited in the major life activity of working, including the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area reasonably accessible to the individual, from which the individual is also disqualified." Hurley v. Modern Cont'l Constr. Co., 77 F. Supp.2d 183, 185 (D.Mass. 1999) (quotations and brackets omitted).
In this case, Lakota does not introduce any evidence to show that his deficits significantly limited his ability to perform either a class of jobs or a broad range of jobs in various classes. Indeed, he does not even address any of the factors recommended by the EEOC to ascertain whether a plaintiff is so limited. Accordingly, the Court concludes that Lakota cannot marshal sufficient evidence to persuade a rational jury that his ability to work is substantially limited.
b. Standing and Walking
Second, with regard to standing or walking, several courts have held that "moderate difficulty or pain experienced while walking does not rise to the level of a disability." Williamson v. Hartmann Luggage Co., 34 F. Supp.2d 1056, 1061 (M.D.Tenn. 1998) (finding that plaintiff with "chronic venous insufficiency" and a history of phlebitis is not disabled under Americans with Disabilities Act ("ADA")). In Williamson, for instance, the court found no substantial limitation on the plaintiff's ability to stand or walk where a doctor opined that he should not stand or walk for more than half his workday. Id. at 1062. Here, Lakota offers no evidence at all regarding the number of hours each day during which his ability to stand or walk is impaired, or the quantum of discomfort he experiences while standing or walking. At most, he offers testimony that his condition rendered standing and walking somewhat uncomfortable. This is insufficient to permit a reasonable jury to find a substantial limitation of his ability to stand or walk.
c. Sleeping
Lakota also contends that his condition substantially limits his ability to sleep. It is by now well established that sleep is a major life function under the ADA. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998), cert. denied, 526 U.S. 1018 (1999). However, an inability to sleep does not qualify as a substantial limitation unless there is a showing that the "affliction is . . . worse than is suffered by a large portion of the nation's adult population." Id. at 644 (evidence that plaintiff takes medication as sleep aid and usually gets "a tough night's sleep" is not substantial limitation); see Felix v. New York City Transit Auth., 154 F. Supp.2d 640, 654 (S.D.N.Y. 2001) (evidence that plaintiff was sleeping only one or two hours per night demonstrated level of insomnia far greater than sleeping difficulties of general population, and thus qualified as substantial limitation). Here, Lakota testified only that he is "uncomfortable" while sleeping due to pressure in his leg and occasional vomiting. See Deposition of Stanley Lakota, at 28. He does not even assert that he is able to sleep only for a limited number of hours every night. Indeed, there is no indication whatsoever that Lakota suffers any more than "a tough night's sleep," which, unfortunately, is also endured by a large percentage of the adult population. See Colwell, 158 F.3d at 644. Accordingly, the Court concludes that there is insufficient evidence for a reasonable jury to find that Lakota is substantially limited in his ability to sleep.
d. Grooming
Finally, Lakota contends that his condition substantially limits his ability to engage in personal grooming. Specifically, Lakota's deposition testimony indicates that he is unable to shave when his blood is very thin, as the sharp blade of the razor could cause a cut, and therefore uncontrollable bleeding. See Deposition of Stanley J. Lakota, at 15, 17. The ability to "care for one's self" is recognized as a major life activity under chapter 151B, see Mass. Gen. Laws ch. 151B, § 1(20), and the ADA. See Toyota Motor Mfg., 122 S.Ct. at 693. However, the courts have generally concluded that the life activity of "caring for one's self" encompasses all normal activities of daily living, taken together, such as feeding oneself, driving, grooming, and cleaning one's home. See Ryan, 135 F.3d at 871; Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
In this case, assuming the truth of Lakota's statement that he is incapable of shaving during the periodic "flare-ups" of his condition, there is no substantial limitation on his ability to care for himself. In fact, Lakota specifically testified that he was not dependent upon others to take care of him. See Deposition of Stanley Lakota, at 14. Moreover, Lakota presents no evidence to show that his impairment prevents him from taking care of any other activities related to "grooming," such as dressing or cleaning himself. Finally, Lakota points to no authority to suggest that a temporary inability to shave might qualify as a substantial limitation, and the Court's research suggests that there is none. See Popko v. Pennsylvania State Univ., 994 F. Supp. 293, 298 (M.D.Pa. 1998) (plaintiff's ability "to do anything with her hair but comb and dry it does not substantially limit her ability to care for herself"), remanded on other grounds, 10 A.D. Cases 1152, (3d Cir. 1999); Ouzts v. USAir, Inc., Civ. A. No. 94-625, 1996 WL 578514, at *14 (W.D.Pa. Jul. 26, 1996) (plaintiff who alleged that she has difficulty bathing and dressing herself not substantially limited in ability to care for herself where she is able to prepare meals, run errands, drive, exercise, fix hair, and care for daughter). Accordingly, this Court concludes that a temporary inability to shave does not qualify as a significant restriction on any major life activity. Therefore, the Court concludes that this claim also must fail.
3. Expected Long-Term Impact
The final factor, the expected long-term impact resulting from Lakota's deep vein thrombosis, also weighs against a finding of substantial limitation. "The term 'impact' refers to the residual effects of an impairment." Ryan, 135 F.3d at 871. Although Lakota will apparently always suffer from deep vein thrombosis, he acknowledges that he has experienced significant problems resulting from the condition on only two occasions between 1994 and 1997. The fact that Lakota suffered few limiting symptoms for approximately two years demonstrates that the long-term impact of his condition may be slight. See id. at 872. Indeed, Lakota has presented no evidence demonstrating any significant long-term residual effects of his condition. Thus, the Court concludes that Lakota has failed to raise a triable issue of fact as to whether his condition will have significant residual effects on his ability to engage in any major life activity.
V. CONCLUSION
Accordingly, the Court GRANTS Sonoco's motion for summary judgment.
It is So Ordered.