Summary
observing that the "plaintiff provide[d] no legal authority to explain why the comments of fellow deputies show that defendant, her employer, considered her disabled"
Summary of this case from McKINZIE v. SPRINT/UNITED MANAGEMENT COMPANYOpinion
CIVIL ACTION No. 02-2301-CM
September 23, 2003
MEMORANDUM AND ORDER
Plaintiff claims the defendant violated the Americans with Disabilities Act ("the ADA"), 42 U.S.C. § 12101 et seq., by regarding her as mentally impaired and subjecting her to a hostile work environment, which plaintiff contends resulted in her constructive discharge.
This matter comes before the court on defendant's Motion for Summary Judgment (Doc. 26). Defendant first argues that this Circuit does not recognize an ADA claim for hostile work environment by an employee who is regarded as having a disability, but who in fact does not suffer from one. Defendant next argues that plaintiff has not shown that defendant regarded her as disabled within the definition of the ADA. Finally, defendant asserts that plaintiff has not proven that she was constructively discharged.
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
A. Plaintiff's Difficulties with Her Co-Workers
Plaintiff began her employment as a deputy police officer with defendant in 1987, and she does not allege any complaints about her work environment for the first fourteen years of her employment. Plaintiff claims, however, that beginning in March 2001, her work environment markedly changed. Plaintiff's position involved classifying inmates for jail housing, and plaintiff alleges that in March 2001, several deputies in that department began to make fun of her and taunt her with accusations that she was mentally ill or unstable. Plaintiff alleges that these comments occurred at least once a week, but, with the exception of Deputy Beletsky, she does not identify most of her purported antagonists.
Defendant objects to many of defendant's allegations as inadmissable hearsay. Defendant also objects to many of the statements made by witnesses on the same ground. At the summary judgment stage, the facts set forth in affidavits must be admissible in evidence at trial. Fed.R.Civ.P. 56(e). Thus, hearsay statements are generally improper in an affidavit to defeat summary judgment. Thomas v. Int'l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995). Without ruling on whether the objected-to statements are inadmissable hearsay, the court will examine the record in the light most favorable to the plaintiff.
Depositions taken of plaintiff's co-workers contain the following more specific information. Sergeant Don Graves testified that other individuals employed by the defendant told him, on at least six occasions, that they thought plaintiff was "crazy" or "nuts." Sergeant Graves also stated that deputies would complain to him that plaintiff's behavior had become unusual. Deputy Anthony Pieruccie testified that he told plaintiff that he thought she was nuts. Deputies Pieruccie, Michael Jackson, Cynthia Zak, and Marsha Gadberry all testified that they heard other deputies, in talking about plaintiff, refer to her as "crazy," "nuts," or mentally disturbed.
B. The Swerving Incident
Plaintiff's working relationship with Sergeant David Haney of the classifications department also began to deteriorate. Plaintiff alleges that on at least one occasion Sergeant Haney told plaintiff, "[y]ou are scaring me again." Sergeant Haney testified that, on May 8, 2001, plaintiff veered her car back and forth as she drove toward him and Deputy Jackson, although neither of them felt that plaintiff intended to actually hit them. Plaintiff denies that the incident took place.
Plaintiff did not controvert defendant's assertion that the incident occurred, but plaintiff does deny it in her motion.
C. Plaintiff's Reassignment
In April 2001, plaintiff's supervisors determined that she had made mistakes in classifying two inmates for jail housing. Consequently, her supervisors reassigned plaintiff to operations. Deputy Pieruccie, who worked with plaintiff in classifications, testified that on May 7, 2001, after being reassigned, plaintiff patted him on the cheek three times and said, "I am sure going to miss working with you . . . you are one of the nice ones that I had to work with. It was fun." Deputy Pieruccie testified that this incident raised more doubts in his mind as to plaintiff's mental stability because he did not have an amicable working relationship with plaintiff. Indeed, Deputy Pieruccie testified that plaintiff "flipped him off' on May 9, 2001, although plaintiff denies this assertion.
Again, plaintiff denies but does not controvert this event.
D. Plaintiff's Fitness-for-Duty Exam
On May 9, 2001, Under-Sheriff Larry Smith sent plaintiff to a psychologist for a fitness-for-duty exam based on plaintiff's behavior over the previous months. Under-Sheriff Smith testified that there were several reasons for his decision, including the May 8, 2001, incident with Sergeant Haney, her seemingly inconsistent behavior toward Deputy Pieruccie, complaints from other deputies about her unusual behavior while on duty, and reports from deputies who found plaintiff crying or upset. Under-Sheriff Smith testified that plaintiff's behavior caused him to believe that plaintiff might be suffering from an emotional problem brought on by a relationship, death in the family, or financial issues. Under-Sheriff Smith concluded that he needed to send plaintiff to a fitness-for-duty exam in order to ensure that she was still capable of performing her job capably and safely.
Dr. Daniel Claiborne, a psychologist, performed plaintiff's fitness-for-duty exam. Dr. Claiborne found no signs of a psychological disorder, and, on May 23, 2001, he cleared plaintiff to return to duty. Plaintiff took vacation leave from work, however, and she did not return until June 13, 2001.
E. Plaintiff's Suspension
Plaintiff returned to work on June 13, 2001, but got into an argument with two other deputies on June 18. Following the argument, plaintiff requested and defendant granted a medical leave from June 19 through July 15. On July 18, 2001, defendant held a disciplinary hearing to address plaintiff's June 18 confrontation. The hearing board suspended plaintiff for three days.
Also on July 18, 2001, Major Johnson and Sergeant Punch met to discuss plaintiff's disciplinary hearing, her upcoming evaluation, and the concerns that other deputies had expressed over plaintiff eventual return to work. As a result of their conversation, Sergeant Punch announced that plaintiff would be returning to duty, and he invited anyone harboring concerns over plaintiff's return to report to him. No one responded to Sergeant Punch's request.
F. Plaintiff's Resignation
Plaintiff resigned by letter dated July 27, 2001. On August 7, 2001, plaintiff completed a termination form, on which she indicated that her resignation was "voluntary" but stated: "I felt the need to voluntarily resign due to the extreme hostile conditions I faced repeatedly since 2001." Plaintiff never filed an oral or written complaint with any of her supervisors, or through defendant's established grievance procedures, asserting that she was being subjected to a hostile work environment. Plaintiff's resignation was made effective August 11, 2001. On August 20, 2001, plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC).
II. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n.l (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
A. The Viability of a Claim for Hostile Work Environment Under the ADA When Plaintiff Does Not Assert an Actual Disability
An employee may state a cause of action against an employer who regarded her as disabled within the meaning of the ADA. 42 U.S.C. § 12112 (a); 12102(2)(C) (defining "disabled" to include "regarded as having such an impairment"). The Tenth Circuit, however, has not yet decided whether a cause of action for hostile work environment exists under the ADA. See Steele v. Thiokol Corp., 241 F.3d 1248, 1252 (10th Cir. 2001). The District of Kansas and several other federal circuits have allowed the claim to go forward, although without formally deciding that the claim is proper. See, e.g., Stevens v. Hy-Vee Food Stores, Inc., 1997 WL 383067 (D. Kan. June 19, 1997); Butler v. City of Prairie Vill., 974 F. Supp. 1386, 1403 (D. Kan. 1997), aff'd in part, rev'd in part, 172 F.3d 736 (10th Cir. 1999); Walton v. Mental Health Ass'n of S.E. Pa., 168 F.3d 661, 666 n. 2 (3rd Cir. 1999); McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998); Silk v. City of Chicago, 194 F.3d 788, 803-04 (7th Cir. 1999); Wallin v. Minn. Dep't of Corrs., 153 F.3d 681, 687-88 (8th Cir. 1998). One district court has formally adopted the Title VII harassment standard for hostile work environment claims under the ADA. Henry v. Guest Servs., Inc., 902 F. Supp. 245, 252 n. 9 (D. D.C. 1995), aff'd 98 F.3d 646 (D.C. Cir. 1996)
Defendant nevertheless argues that in all the cases to date the individual asserting an ADA-based hostile work environment claim also claimed to be disabled. Plaintiff in this case does not assert an actual disability. Defendant therefore contends that plaintiff's claim extends beyond the ADA's currently recognizable bounds.
As referenced above, the District of Kansas has recognized a claim for hostile work environment under the ADA. Stevens, 1997 WL 383067, at *6. Moreover, the Tenth Circuit permits a plaintiff to bring a claim under the ADA for being regarded as disabled, even when the plaintiff does not claim "an actual limiting impairment." McKenzie v. Dovala, 242 F.3d 967, 970-71 (10th Cir. 2001) ("[Plaintiff] does not allege she had an actual limiting impairment at the time she sought re-employment. To the contrary, she testified that she was healthy and had obtained permission to resume work."). Further, EEOC regulations provide that an employee can be regarded as disabled when the employer treats the employee as substantially limited in a life activity, even if the employee has no physical or mental impairment. 29 C.F.R. § 1630.2(1)(3). In the absence of contradictory authority, the court concludes, without deciding, that plaintiff states an ADA hostile work environment claim based on plaintiff's allegation that defendant regarded her as disabled.
B. Plaintiff's Claim that Defendant Discriminated Against Her by Regarding Her as Disabled
The ADA prohibits discrimination against disabled individuals who are capable of performing the functions of their jobs, either with or without reasonable accommodation. 42 U.S.C. § 12112(a), 12111(8) (defining "qualified individual"). To maintain a claim for hostile work environment under the ADA, a plaintiff must show that: (1) she was disabled within the meaning of the ADA; (2) she was qualified to perform the job, with or without reasonable accommodations; (3) and, as a result of her disability, defendant subjected plaintiff to a hostile working environment that altered a term or privilege of employment. Butler, 974 F. Supp. at 1403. An employee can meet the first prong, and thereby fall under the protection of the ADA, if her employer regarded or treated her as if she had a disabling impairment that substantially limited one or more major life activities. Tate v. Farmland Indus., Inc., 268 F.3d 989, 992 (10th Cir. 2001) (quoting 42 U.S.C. § 12102(2)). Plaintiff claims that she was disabled within the definition of the ADA because defendant treated her as if she were mentally disabled. Specifically, plaintiff claims that defendant regarded her as substantially limited in the major life activity of working, interacting with others, and thinking.
Working is a major life activity. Rakity v. Dillon Cos., Inc., 302 F.3d 1152, 1158 (10th Cir. 2002). To be substantially limited in working "means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." Id. (quoting the standard set forth by the EEOC in 29 C.F.R. § 1630.2(j)(3)(i)). The Tenth Circuit has not formally recognized interacting with others as a major life activity. Nevertheless, it has concluded that, in order to establish an impairment in this activity, a plaintiff would have to demonstrate that her "'relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.'" Steele, 241 F.3d at 1254-55 (quoting McAlindin v. County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999)).
Plaintiff has not distinguished which of her factual assertions support which major life activity that defendant allegedly regarded her as substantially limited in performing. As to plaintiff's claim that defendant regarded her as substantially limited in "thinking," plaintiff offers little to explain the legal standard or the factual evidence to support this claim. The court will therefore consider all of plaintiff's factual allegations and determine whether there exists a genuine issue of material fact as to whether defendant discriminated against her by regarding her as substantially limited in working or interacting with others.
1. Major Life Activity of Working
a. Plaintiff's Transfer
To show that defendant regarded her as substantially limited in the activity of working, plaintiff must demonstrate that defendant considered her limited in performing a class or broad range of jobs in various classes. Rakity, 302 F.3d at 1158; 29 C.F.R. § 1630.2(j)(3)(i). Plaintiff, however, has failed to offer evidence to support such a claim under this standard. Defendant did transfer plaintiff to another job after she made mistakes in her original position, but "[t]he 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)(ii)(B); Sutton v. United Air Lines, Inc., 130 F.3d 893, 904 (10th Cir. 1997). Plaintiff's new job in operations was within the same broad range as her previous one in classifications; she remained a deputy in the police department. Thus, plaintiff's transfer is insufficient as a matter of law to show that defendant regarded her as substantially limited in the activity of working.
b. Fitness-for-duty Exam
Plaintiff argues that defendant's order that she undergo a fitness-for-duty exam provides sufficient evidence that defendant considered her mentally disabled. A referral to a fitness-for-duty exam that complies with the ADA does not, by itself, prove that the employer considered the employee disabled. Conrad v. Bd. of Johnson County Comm'rs, 237 F. Supp.2d 1204, 1237-38 (D. Kan. 2002). EEOC regulations provide that an employer may require a fitness-for-duty examination "when there is a need to determine whether an employee is still able to perform the essential functions of his or her job." 29 C.F.R. § 1630.14(c).
Plaintiff argues that defendant asserted no performance-based basis for requesting the exam, and that the exam was merely to confirm defendant's suspicions about her unusual behavior. Plaintiff's argument misreads the law and is an incomplete presentation of the facts surrounding this case. An employer may request a fitness-for-duty exam when specific incidents of troubling job performance justify an evaluation, and this request does not create an automatic presumption that the employer regarded the employee as disabled. Even if defendant regarded plaintiff as having an impairment of some sort, that knowledge alone is insufficient to prove that defendant regarded plaintiff as substantially limited in the major life activity of working. Monell v. Kan. Ass'n of Sch. Bds., 2001 WL 487766, at *7 (D. Kan. 2001) ("The fact that [defendant] was aware of plaintiff's injuries or impairments falls far short of raising a triable issue that plaintiff was regarded by her employer as being substantially limited in her ability to concentrate or see."). There must exist a larger collection of evidence, in addition to an exam request, that demonstrates that an employer regarded an employee as disabled. Tice v. Centre Area Transp. Auth., 247 F.3d 506, 515-17 (3nd Cir. 2001).
In this case the defendant had a justifiable reason to request the exam. Plaintiff had made errors in her employment, exhibited what other officers considered unusual behavior, and displayed problems getting along with her co-workers. Such evidence is sufficient as a matter of law to allow an employer to request a fitness-for-duty exam without creating a presumption that defendant regarded plaintiff as disabled.
c. Co-workers' Comments
Plaintiff also asserts that defendant regarded her as mentally ill based on her allegations that deputies ridiculed her and accused her of being mentally ill. Putting aside the hearsay problems with these alleged statements, plaintiff provides no legal authority to explain why the comments of fellow deputies show that defendant, her employer, considered her disabled. See, e.g., Rakity, 302 F.3d at 1163 ("[Plaintiff] cites no legal authority and makes no factual argument explaining how the views of a non-decisionmaker . . . could prove [that defendant] regarded [plaintiff] as disabled for purposes of the Americans with Disabilities Act."). Deputies in the sheriff's department are not decisionmakers, so their alleged mean-spirited comments do not prove that defendant regarded plaintiff as disabled within the ADA.
Plaintiff does assert that supervisors had knowledge of other deputies' opinions about her and made comments of their own that indirectly referred to her mental stability. Sergeants Haney and Graves both testified that deputies had raised concerns with them regarding plaintiff's behavior. Former-deputy Marsha Gadberry testified that, although she never heard a supervisor use the word "crazy," she did hear several supervisors make "underlying statements about [plaintiff's] mental stability." (Gadberry Depo. at 10.) At another point in her deposition, however, Ms. Gadberry testified that she couldn't recall any specific conversations with anyone. ( Id. at 31.)
The supervisors' alleged comments about plaintiff and Sergeant Punch's announcement are not, as a matter of law, equivalent to regarding plaintiff as disabled. Perhaps these statements showed the supervisors' growing concern, but the comments are not evidence that defendant treated plaintiff as unable to perform as a deputy. Plaintiff has not offered any evidence that her supervisors regarded her as disabled by making comments to her or treating her as unable to function as a deputy. Indeed, defendant planned to return plaintiff to her position on the force after she successfully completed the fitness-for-duty exam.
Finally, plaintiff claims that Sergeant Punch's announcement at roll call, on July 18, 2001, asking to speak with any deputy concerned over plaintiff's return to the force proves that defendant regarded her as substantially impaired in working. The court disagrees. An employer's expressed concern over an employee's job performance, by itself, is not the same as regarding an employee as disabled for purposes of the ADA. Everist v. Blue Cross Blue Shield, 2000 WL 1708504, at *7 (D. Kan. Oct. 20, 2000) ("It is not enough, however, that the employer regarded that individual as somehow disabled; rather, the plaintiff must show that the employer regarded the individual as disabled within the meaning of the ADA."). In this case, Sergeant Punch's announcement exhibited his concern over plaintiff's job performance; his comments did not constitute a conclusion that defendant regarded plaintiff as disabled.
2. Major Life Activity of Interacting with Others
Plaintiff also asserts that defendant regarded her as disabled within the major life activity of interacting with others. Plaintiff has not, however, recited any legal standard for proving this claim or specifically identified facts which are of genuine issue. To prevail, plaintiff must establish more than a difficulty interacting with certain co-workers. Steele, 241 F.3d at 1254-55. Specifically, plaintiff must demonstrate severe communication problems and social withdrawal from all people, not just certain co-workers with whom she had problems. Based upon the general collection of facts asserted by plaintiff, the court concludes that no reasonable jury could find in favor of plaintiff on this claim.
C. Plaintiff's Claim that Defendant Subjected Her to a Hostile Work Environment Such that She Was Constructively Discharged
The court has found that plaintiff has failed to establish that defendant regarded her as disabled within the ADA. Consequently, plaintiff's constructive discharge claim also fails. See Goodwin-Haulmark v. Menninger Clinic, Inc., 76 F. Supp.2d 1235, 1238 (D. Kan. 1999) ("[C]onstructive discharge does not by itself constitute a cognizable claim, it is an element of . . . federal discrimination claims. . . .").
Even if plaintiff had established her ADA discrimination claim, the court is not convinced that plaintiff has alleged sufficient evidence to survive summary judgment on her constructive discharge claim. To support a hostile work environment claim, a plaintiff must demonstrate that her workplace is "'permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Stevens v. Hy-Vee Food Stores, Inc., 1997 WL 159050, at *6 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In the Title VII context, the Supreme Court has cautioned that "simple teasing, offhand comments, and isolated incidents (unless serious)" do not rise to the level of a violation. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citations omitted). Rather, a court should look at the totality of the circumstances to determine whether the conduct was sufficiently pervasive to create a hostile working environment, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 787-88.
Plaintiff asserts that she was subjected to intense ridicule by her co-workers of which she claims management was aware. In support, plaintiff provides a list of statements in which the purported speaker is unidentified or the statements themselves are inadmissable hearsay. Plaintiff also argues that being required to attend the fitness-for-duty exam, and Sergeant Punch's roll call announcement contributed to a hostile work environment. The court concludes, however, that plaintiff's allegations do not provide sufficient evidence to survive summary judgment on her hostile work environment claim.
IV. Order
IT IS THEREFORE ORDERED that defendant's Motion for Summary Judgment (Doc. 26) is granted.