Opinion
Case No. 98-4063-SAC.
April 18, 2001.
MEMORANDUM AND ORDER
This case comes before the court on the defendant Kansas Association of School Boards' ("KASB") motion for summary judgment. Plaintiff, Louise A. Monell, alleges that her employment with KASB was terminated in violation of the Americans With Disabilities Act, 42 U.S.C. § 12102 et seq ("ADA"). KASB denies any violation of the ADA, and affirmatively asserts that plaintiff was not disabled, that plaintiff's physical condition was not a factor in her termination, and that plaintiff was terminated for a pattern of poor work performance. (Dk. 39, p. 1).
UNCONTROVERTED FACTS
The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Immaterial facts, and those not necessary to the court's decision are not set forth herein.
Plaintiff was hired by KASB as Director of Finance in July of 1994 and remained so employed until April 18, 1996. Plaintiff was given a mid-year evaluation in December of 1994, followed by an annual performance review on May 1, 1995, completed by Ms. Patricia Baker, KASB's Associate Director and General Counsel. Ms. Baker rated plaintiff "satisfactory" in each category regarding performance of the major duties and responsibilities required in her position, but rated plaintiff "unsatisfactory" in two of seven areas which were "minimum levels of performance expected of all employees." (Dk. 63, Exh. A., p. 4, 6). These were cooperating with other employees of the association, and establishing and maintaining open lines of communication with other association employees. (Id., p. 6.) On December 19, 1995, plaintiff was given an oral evaluation, the content of which is disputed.
This evaluation was signed by plaintiff and Ms. Baker on April 28, 1995, and is later referred to by Ms. Baker as the April 28th evaluation.
In February of 1995, plaintiff alleged that she suffered a torn left rotator cuff, a dislocated jaw, a severe concussion, and double vision as a result of an assault which occurred as she was leaving a bar. Plaintiff informed her supervisors at KASB the morning after the assault that she needed to have medical attention and would be leaving work. Plaintiff's supervisor permitted plaintiff to go home and told her to take whatever time she needed and that her absence would not be charged against her leave balances. This was in accordance with KASB's written policy that salaried staff members would "not be charged for usage of sick leave for any appointments with . . . physicians." (Dk. 63, Exh. M, p. 2.) KASB's practice, however, was to charge such absences to sick or vacation leave when medical appointments took "the major part of a half day or a day." (Dk. 39, p. 8, ¶ 31, uncontested by plaintiff).
During the ensuing months, plaintiff left the office during the workday numerous times for doctor's appointments, sometimes turning in leave time for such absences, and sometimes not. On February 29, 1996, Ms. Baker requested that plaintiff provide, among other matters, a statement from her doctor regarding health problems which may affect her ability to perform her work, the approximate dates and length of time she would need to be absent, and any limitations or accommodations she would need in order to perform her duties. (Dk. 60, Exh. 5, bates no. DP00031). That memo additionally requested that plaintiff complete a Form 88 regarding previous injuries, which plaintiff did. (Dk. 60, Exh. 3).
On March 18, 1996, plaintiff's physician, Dr. McCarthy, wrote Ms. Baker summarizing plaintiff's medical conditions of double vision, shoulder pain, and temporomandibular joint disease, and opining that plaintiff would not have "any specific limitations in performing her job other than time off required for her appointments and therapy." (Dk. 39, Monell depo. Exh. 13.)
On March 27, 1996, Ms. Baker sent plaintiff a memo which stated in part: "The amount of time required for your medical care, which has not been charged to accumulated paid leave since you started with KASB in July of '94 is of grave concern." (Dk. 63, Exh. M, p. 4).
On April 6, 1996 plaintiff's attorney, Ron Pope, wrote Ms. Baker a letter stating that he represented plaintiff "for injuries that she received arising out of an assault in February of 1995," that he was aware of her "grave concerns regarding [plaintiff's] condition," that he considered plaintiff to be protected by the Americans with Disabilities Act, that plaintiff remained able to perform the major functions of her job, and that the requests by plaintiff's medical providers were reasonable and could be accommodated without major disruption to KASB. (Dk.63, Exh. P, p. 1). Plaintiff's attorney therein requested: "if you have grave concerns regarding her ability to continue employment, would you please address them to me so we can discuss the same?" (Id.)
On April 17, 1996, Ms. Baker asked plaintiff to provide a signed authorization for her to speak with attorney Pope. (Dk. 63, Exh. P, p. 2). Plaintiff did so, returning the authorization to Ms. Baker that same afternoon. After receiving the requested authorization from plaintiff, Ms. Baker made the decision to terminate plaintiff's employment. At the time of her decision, discussions regarding plaintiff's termination had been ongoing for almost a year.
By letter dated April 18, 1996, plaintiff was notified that her employment was terminated that day due to the following reasons:
Your failure to communicate with and cooperate with other staff as noted in your evaluation of April 28, 1995. No improvement or effort at improvement can be noted. Continuing problems of communication and cooperation have developed.
Your failure to provide leadership and direction in the acquisition of software applications for association accounting functions within the framework established by the Association.
Your failure to complete the necessary preparation of personal property inventory information in a timely and professional manner.
Your failure to complete or follow-through on various projects assigned to the Finance Department over the past 18 months.
(Dk. 39, Monell Depo. Exh. 19).
Plaintiff thereafter brought suit against KASB for alleged violations of the Family and Medical Leave Act, ("FMLA") and the Americans with Disabilities Act. Plaintiff has since dismissed her claim under the FMLA, leaving at issue solely her claims under the ADA. Other facts relevant to the court's analysis are set forth below as necessary.
SUMMARY JUDGMENT STANDARDS
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will . . . preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[T]here are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir. 1988).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586; it requires "`present[ing] sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir. 1995) ( quoting Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir. 1991)). A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir. 1995).
ANALYSIS
KASB seeks summary judgment on plaintiff's ADA discrimination claim, alleging that plaintiff cannot make a prima facie case, but that even if she can, KASB had legitimate, non-discriminatory and non-pretextual reasons for terminating the plaintiff's employment.
Disability
KASB first contends that plaintiff is not disabled, within the meaning of that term in the ADA. Plaintiff alleges that she has a disability, and further alleges that even if she does not actually have a disability, the KASB regarded her as having one. In order to bring her claim under the ADA, plaintiff must first establish that she is a qualified individual with a disability. See Pack v. Kmart Corp., 166 F.3d 1300, 1304 (10th Cir.), cert denied, 528 U.S. 811, (1999).
KASB alleges that plaintiff's interpersonal deficiencies were so great as to render her unqualified for the position, but the court finds it unnecessary to address this issue.
In order to establish a prima facie case for wrongful discharge under the ADA, "a plaintiff must demonstrate (1) that she is a disabled person within the meaning of the ADA; (2) that she is able to perform the essential functions of the job with or without reasonable accommodation; and (3) that the employer terminated her because of her disability." Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1173 (10th Cir. 1996). Disability is defined as: (A) a physical or mental impairment that substantially limits one or more of the 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(2).
Plaintiff first contends that she has "a physical or mental impairment that substantially limits one or more" of her major life activities. KASB goes to great lengths in its brief to show that plaintiff is not disabled in the major life activity of working, but plaintiff denies reliance on the life activity of working. (Dk. 63, p. 22, 23). In fact, plaintiff admits that none of her alleged injuries prevented her from doing her job as Director of Finance at KASB or from performing similar job duties elsewhere after her termination from KASB. Instead, plaintiff alleges that she is substantially impaired in the major life activities of concentrating and seeing.
Plaintiff additionally identified the major life activity of "lifting" in her answers to KASB's interrogatories, but does not pursue this in her brief, thus the court will not address it.
A person is "substantially limited" in a major life activity if he is: (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). In determining whether plaintiff's major life activities of seeing or concentrating has been affected, the court takes into account the following factors: (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2).
Seeing
Seeing is specifically included in the list of major activities set forth as examples in C.F.R. § 1630.2(i) (listing "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." The Tenth Circuit has repeatedly included seeing among the activities listed as major life activities. See e.g., Doyal v. Oklahoma Heart Inc., 213 F.3d 492, 495 (10th Cir. 2000) ; Poindexter v. Atchison, Topeka Santa Fe Ry. Co., 168 F.3d 1228, 1231-32 (10th Cir. 1999); Pack, 166 F.3d at 1305; Sutton v. United Airlines, Inc., 130 F.3d 893, 900 (10th Cir. 1997), aff'd, 527 U.S. 471 (1999).
Plaintiff's burden is thus to show that she is substantially limited in her seeing. To meet this burden, plaintiff offers two letters from one physician. The first states that plaintiff has a "very complex" eye condition, a "continued sensation of dyplopia," which is "distressing" because it "affect[s] . . . her ability to perform tasks on a computer for long periods of time . . . and limit[s] her ability to drive, especially at night." (Dk. 63, Exh. K., p. 1,2). Dr. McCarthy later opined that plaintiff's visual disturbance and dyplopia "would limit her ability to see at night and during the day as compared to an average person." (Dk. 63, Exh. L, p. 1).
These letters fail to create an issue of fact as to whether plaintiff's sight substantially limits her in any way. The physician's letters are void of facts such as the nature or severity of plaintiff's impairment, the expected duration of her impairment, whether she has double vision at all times and in all directions of gaze, or whether her double vision can be alleviated or corrected by use of glasses, other devices, therapy, eye positioning or otherwise. See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (holding that corrective and mitigating measures should be considered in determining whether individual is disabled under ADA). Dr. McCarthy's letter dated March 18, 1996 stated that plaintiff was undergoing therapy for her eye condition and that her evaluation may require a couple of additional visits, but that she did not anticipate that plaintiff's eye condition would require surgery or extensive time off work. (Dk. 39, Monell Depo. Exh. 13).
Nor has plaintiff testified to how her impairment in sight adversely impacts her life. The record demonstrates that prior to her termination, plaintiff was been able to overcome her impairment sufficiently to drive to work and, in plaintiff's opinion at least, to perform the ordinary tasks of her job. Although plaintiff's impairment restricts her in certain ways, such as driving to board meetings at night, overall, her double vision does not substantially limit any major life activity, including her ability to see.
This result is in accordance with a host of cases which have addressed whether certain impairments constitute substantial limitations of the major life activity of seeing.
In most ADA cases where the plaintiff suffers from some form of visual impairment yet is still able to perform most daily activities without much difficulty, the plaintiff was found not to be disabled under the ADA. [ See] Still v. Freeport-McMoran, Inc., 120 F.3d 50 (5th Cir. 1997) (finding no disability where plaintiff was blind in one eye, yet could perform normal daily activities, could drive, and was a certified marksman); Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993) (vision that can be corrected to 20/200 does not constitute a handicap, and further finding that the plaintiff's vision did not substantially limit any major life activity), cert. denied, 511 U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994); Cline v. Fort Howard Corp., 963 F. Supp. 1075, 1080-81 (E.D.Okla. 1997) (nearsightedness and difficulties with peripheral vision do not constitute a disability under the ADA where the plaintiff could otherwise drive to and from work, transport her children to various destinations, participate in recreational activities, and perform all other tasks associated with her employment); Overturf v. Penn Ventilator, Co., Inc., 929 F. Supp. 895, 897 (E.D.Pa. 1996) (tumor behind one eye which caused double, and sometimes triple vision, and resulted in loss of peripheral vision was not a disability Dunder the ADA because he could drive a car, watch television and read); Walker v. Aberdeen-Monroe County Hosp., 838 F. Supp. 285 (N.D.Miss. 1993) (although plaintiff had cataracts in both eyes, caused by medication for sarcoidosis, and 20/30 corrected vision, he had no disability under the ADA where his work was only marginally affected, he remained active in sports, and driving was prohibited only during times when his condition worsened)Bancale v. Cox Lumber Company, Inc., 1998 WL 469863, *3 (M.D.Fla. May 18, 1998).
In light of the above law, and the subsequent ruling of the Supreme Court in Sutton, this court cannot avoid the conclusion that plaintiff has failed to meet her burden to show that she is disabled within the meaning of that term in the ADA. Plaintiff's proffer of diagnoses and legal conclusions is not sufficient to create a dispute of fact on this issue. Instead, there must be evidence of how her visual impairment affects the activities of her daily life. Plaintiff's explanation that she cannot see in the dark to drive to board meetings is simply not enough to support a finding that her sight is "substantially" affected — especially when plaintiff concedes that her visual impairment does not preclude her from working or engaging in the other activities of her life. Therefore, this court finds as a matter of law that plaintiff is not substantially limited in her major life activity of seeing.
Concentrating
Plaintiff next alleges that impairments such as headaches, double vision, shoulder pain, and temporal mandibular joint degeneration, substantially limit her ability to concentrate. The Tenth Circuit has squarely held, however, that concentrating is not a major life activity. Pack v. Kmart Corp., 166 F.3d 1300 (10th Cir.), cert. denied, 528 U.S. 811 (1999). As noted in Pack, "[c]oncentration may be a significant and necessary component of a major life activity, such as working, learning, or speaking, but it is not an `activity' itself." Pack, 166 F.3d at 1305. See Linser v. State of Ohio, Dept. of Mental Health, 234 F.3d 1268, 2000 WL 1529809, *3 (6th Cir. (Ohio) (Table).
Although the EEOC Guidance on Psychiatric Disabilities And the Americans With Disabilities Act, EEOC Compliance Manual (BNA) No. 59, at E-2 (Mar. 27, 1997), lists concentrating among major life activities, and the EEOC's guidance may be entitled to some consideration in the court's analysis, it does not carry the force of law and is not entitled to any special deference. Sutton, 130 F.3d at 899 n. 3.
Accordingly, the court need not examine whether plaintiff is substantially limited in her ability to concentrate.
Regarded as Disabled
Plaintiff next alleges that KASB regarded her as disabled, bringing her within the protection of the ADA. The ADA recognizes that some persons who are not disabled will nonetheless have claims under the ADA if they can establish they were "regarded as" disabled.
The regulations provide three scenarios under which a plaintiff can be regarded as disabled: If a person (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) has none of the impairments defined in . . . this section but is treated by a covered entity as having a substantially limiting impairment. 29 C.F.R. § 1630.2(l).
"Thus, '[a] person is `regarded as having' an impairment that substantially limits the person's major life activities when other people treat that person as having a substantially limiting impairment,'" regardless of whether the individual actually has an impairment. MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444 (10th Cir. 1996). The focus is on the impairment's or the perceived impairment's effect upon the attitudes of others. Id; Sutton, 130 F.3d at 902. According to the EEOC's interpretive guidelines, if an individual can show an employer's adverse action based on "myth, fear, or stereotype," including concerns regarding safety, insurance, liability, and acceptance by coworkers and the public, the individual will satisfy the "regarded as" component of the definition of disability. 29 C.F.R. pt. 1630 app. § 1630.2(l). Plaintiff does not allege that KASB's termination was based upon myth, fear, or stereotype, or that KASB otherwise treated her as substantially limited in her ability to see or concentrate.
Instead, plaintiff's allegation that KASB regarded her as disabled is based upon the fact that KASB asked plaintiff to complete a "Form 88," (Dk. 63, Exh. O), which is a Notice of Handicapped Employee for the Division of Workers' Compensation. (Dk. 39, p. 12, ¶ 48-49, undisputed by plaintiff). The fact that KASB 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. See Steele v. Thiokol Corp., 2001 WL 173698 (10th Cir., Feb. 22, 2001) (finding no triable issue where employer was aware of a disability and the medications being taken, and one of plaintiff's supervisors showed concern about plaintiff's mood swings and asked the company nurse if they could be a side effect of plaintiff's medication); Cody v. Cigna Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998); 29 C.F.R. § 1630.2(1)(1), (3) ("an employer's request for a mental evaluation . . . is not equivalent to treatment of the employee as though she were substantially impaired.") No triable issue of fact has been shown on this issue.
Nor does it raise a triable issue as to whether the KASB regarded plaintiff as disabled in the major life activity of working.
Record of Disability
Plaintiff appears to alternatively argue that the defendant terminated her on the basis of a "record" of disability, again based upon the Form 88. See 42 U.S.C. § 12102(2)(B). A record of disability is a history of impairment that substantially limited a major life activity of a plaintiff. 29 C.F.R. § 1630.2(k); see also Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1086-87 (10th Cir. 1999). To satisfy this definition, plaintiff must establish that at some point her impairment actually did substantially limit her ability to see. See McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001).
Plaintiff's disclosure of her impairments to KASB for workers' compensation purposes fails to constitute a record of disability or to establish that KASB regarded her as disabled for purposes of the ADA. Though statements made in connection with an application for disability or other benefits may be probative as to the question whether an employee suffers from a mental or physical disability that substantially limits one or more major life activities, they are neither dispositive of the inquiry nor sufficient to give rise to a genuine issue of material fact. See Aldrich v. Boeing Co., 146 F.3d 1265, 1268-69 (10th Cir. 1998). A record of disability "must be one that shows an impairment that satisfies the requirements of the ADA; a record reflecting a plaintiff's classification as disabled for other purposes or under other standards is not enough." Baffoe v. W.H. Stewart Co., 211 F.3d 1277, 2000 WL 484878, *5 (10th Cir. April 24, 2000) (Table), quoting Colwell v. Suffolk County Police Dept., 158 F.3d 635, 645 (2nd Cir. 1998). Plaintiff cannot sustain her burden to show that KASB regarded her as disabled, or that she had a record of being disabled, merely by virtue of the fact that she made KASB aware of her TMJ problems, headaches, and shoulder pain.
Accordingly, plaintiff cannot make a prima facie case of disability discrimination. Although additional grounds for granting summary judgment on this claim may well exist, the court will not reach them, given its holding above.
MOTION TO SUPPLEMENT
KASB has moved to supplement its motion for summary judgment to bring to the court's attention alleged changes in the law. Plaintiff has responded thereto. This motion will be granted.
IT IS THEREFORE ORDERED THAT KASB's motion to supplement its motion for summary judgment (Dk. 62) is granted, and that KASB's motion for summary judgment (Dk. 38) on plaintiff's ADA discrimination claim is granted.