Summary
holding that ADA claimant who suffered an epileptic seizure approximately once every month to two months is not substantially limited in the major life activity of working
Summary of this case from Otting v. J. C. Penney Co.Opinion
Civil Action No. 99-2119-GTV
April 7, 2000
Aldo P. Caller, for Plaintiff.
Martha A. Halvordson, Bioff, Singer Finucane, for Defendant.
MEMORANDUM ORDER
Plaintiff Raul Moreno brings this action alleging that defendant American Ingredients Company enforced its attendance policy in a discriminatory manner in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), the Family Medical Leave Act, 29 U.S.C. § 2601-2654 (FMLA), and the Kansas Act Against Discrimination, K.S.A. §§ 44-1001 et seq. (KAAD). Plaintiff also claims workers' compensation retaliatory discharge under Kansas law. The case is before the court on defendant's motion for summary judgment (Doc. 26). For the reasons set forth below, the court grants in part and denies in part defendant's motion.
I. SUMMARY JUDGMENT STANDARDS
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 of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party.See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
II. FACTUAL BACKGROUND
The following facts are either uncontroverted or are based on the evidence submitted with summary judgment papers viewed in a light most favorable to the nonmoving party. Immaterial facts and facts not properly supported by the record are omitted.
Defendant operates a food ingredients processing plant. Plaintiff, a Hispanic with epilepsy, worked as a material handler in defendant's Kansas City, Kansas plant from 1994 to 1997. During his tenure with defendant, plaintiff accumulated points for leaving early and for various absences under defendant's attendance policy. On October 14, 1997, plaintiff suffered a back injury on the job. Plaintiff filed a workers' compensation claim for this injury. Plaintiff was absent from work on November 1 and 3, 1997; he received points under the attendance policy for being absent. On November 6, 1997, defendant discharged plaintiff for allegedly exceeding the maximum number of allowable points under the attendance policy.
III. DISCUSSION A. ADA and KAAD
Plaintiff alleges that defendant failed to provide a reasonable accommodation for his epilepsy and that defendant terminated him on the basis of this disability in violation of the ADA and the KAAD. Plaintiffs disability claims fails, however, because he has not established that he is a disabled person within the meaning of the ADA.
Although not controlling, federal decisions applying Title VII the ADA are persuasive authority in construing KAAD claims because the statutes are analogous. See Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir. 1997); Best v. State Farm Mut. Auto Ins. Co., 953 F.2d 1477, 1479 (10th Cir. 1991); Woods v. Midwest Conveyor Co., 231 Kan. 763, 767 (1982). Therefore, the court refers only to the federal standards in granting summary judgment on plaintiffs KAAD claims.
To be disabled, plaintiff must establish that he has "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12101 (2). While plaintiffs epilepsy qualifies as a physical impairment, he has failed to show that it substantially limits one or more major life activities. "Substantially limits" means either the inability to perform a major life activity, or a severe restriction on the ability to perform a major life activity as compared to the general population. See 29 C.F.R. § 1630.2 (j)(1). For plaintiff to be substantially limited in a major life activity, the court must consider the nature and severity of his impairment, its expected duration, and its expected permanent or longterm impact. 29 C.F.R. § 1630.2 (j)(2); see also Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10th Cir. 1994).
Plaintiff contends that he is substantially limited in the major life activity of working because during his epileptic attacks, he loses consciousness, becomes dizzy, disoriented, and weak for several hours thereafter. Plaintiff argues that he is disabled because during these epileptic attacks, he cannot perform any kind of work. The court is unable to find any support for the proposition that the inability to actually perform work during an epileptic attack qualifies as being substantially limited in the major life activity of working. "When the major life activity under consideration is that of working, the statutory phrase `substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs." Sutton v. United Airlines, Inc., 119 S.Ct. 2139, 2151 (1999). Plaintiff; in the case now before this court, has neither made such an allegation in his complaint nor in his briefing. While the court can conceive of a situation where a plaintiffs epileptic attacks are with such force and frequency that he is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes," such has not been alleged or established to be the case with this plaintiff. See 29 C.F.R. § 1630.2 (j)(3). The record evidences that plaintiff suffers a seizure approximately once every month or month and a half to two months. While recognizing that plaintiffs epilepsy is most likely debilitating at times, the record does not support a finding that plaintiff is "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." Id.
During an epileptic attack, plaintiff also is unable to care for himself, perform manual tasks, walk, run, jump, learn, help around the house, or mow the lawn.
Plaintiffs briefing seems to suggest that he is disabled under the ADA because he is unable to drive due to his epilepsy. The court could not find any cases, however, where driving was regarded as a major life activity, nor is the court persuaded that it should regard driving as a major life activity. Cf. Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998); see also Acevedo Lopez v. Police Dep't of the Commonwealth of Puerto Rico, 81 F. Supp.2d 293, 297 (D. P.R. 1999) (This court agrees that driving is not a sufficiently significant or essential function to qualify as a major life activity under the ADA. The significance of driving is simply not on par with those basic, essential human functions that are within the contemplation of the ADA, such as caring for oneself, walking, seeing, hearing, speaking, breathing, learning, and working.")
The court finds that plaintiff is not disabled as defined by the ADA. Plaintiff has failed to offer evidence that his epilepsy substantially limits a major life activity or that he was regarded as having such an impairment. The court grants summary judgment on plaintiffs ADA and KAAD claims.
B. Title VII and KAAD
Plaintiff alleges disparate treatment in the enforcement of defendant's attendance policy and wrongful termination on the basis of his race, ethnicity, or national origin in violation of Title VII and the KAAD. Plaintiffs claims fail, however, because he has failed to provide any evidence that he was treated differently than similarly situated nonminority employees. See e.g. Aramburu, 112 F.3d at 1403; Valdivia v. University of Kansas Med. Ctr., 24 F. Supp.2d 1169, 1175 (D. Kan. 1998). Plaintiffs vague and conclusory statements that he "observed that some white co-workers who arrived late to work were not charged points on attendance," and that he "observed that the Mexicans were reprimanded for any attendance problems" fall short of meeting this burden. Plaintiff also contends that a chart defendant submitted to the Kansas Human Rights Commission reflects that the majority of the employees who were terminated for alleged attendance policy violations were Hispanic. This document, however, provides no information about similarly situated nonminority employees. Finding no evidence in the record to support plaintiffs Title VII and KAAD claims, the court grants summary judgment.
Although not controlling, federal decisions applying Title VII and the ADA are persuasive authority in construing KAAD claims because the statutes are analogous. See Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir. 1997); Best v. State Farm Mut. Auto Ins. Co., 953 F.2d 1477, 1479 (10th Cir. 1991); Woods v. Midwest Conveyor Co., 231 Kan. 763, 767 (1982). Therefore, the court refers only to the federal standards in granting summary judgment on plaintiffs KAAD claims.
C. FMLA
Plaintiff next contends that defendant's enforcement of the attendance policy and his termination violated his rights under the FMLA. After reviewing the record, the court concludes that genuine issues of material fact exist as to whether plaintiff was entitled to FMLA leave for his epilepsy. "The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed." 29 C.F.R. § 825.302 (c). At that point, the burden shifts to the employer to "inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken." Id. The record contains sufficient evidence that defendant knew of plaintiffs serious health condition, and a genuine issue of material fact exists as to whether plaintiff informed his supervisors that certain absences for which he was assessed points under the attendance policy were related to his epilepsy. The court therefore denies summary judgment on plaintiffs FMLA claim.
D. Retaliatory Discharge under Kansas Law
Plaintiff contends that defendant discharged him in retaliation for exercising his rights under the Kansas Workers' Compensation Act. See Ortega v. IBP, Inc., 874 P.2d 1188 (Kan. 1994). In order to establish a claim of retaliatory discharge, plaintiff has the initial burden to show that: (1) he filed a claim for workers' compensation benefits; (2) the employer had knowledge of the compensation claim; (3) the employer terminated plaintiff; and (4) a causal connection existed between the protected activity and the termination. See Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998). Defendant contends that summary judgment is appropriate because plaintiff cannot establish a causal connection. The court disagrees and finds that a causal connection existed by virtue of the close temporal proximity of plaintiffs termination to his injury. Plaintiff injured his back on October 14, 1997 and was terminated on November 6, 1997.
The burden then shifts to defendant to articulate a nonretaliatory reason for the discharge. Because defendant has met its burden by asserting that it terminated plaintiff because he violated the attendance policy, the burden shifts back to plaintiff to show that he was terminated in retaliation for exercising his rights. See id. The court finds that there is sufficient evidence in the record to raise a genuine issue of material fact as to whether plaintiff was terminated in retaliation for exercising his rights under the Workers' Compensation Act. Plaintiff testified in his affidavit that he informed his supervisors that his light duty workers' compensation assignment — sitting on a wooden pallet without back support — aggravated his back injury and that he would not be able to continue working if they did not make an adjustment for his back. Defendant did not make any such adjustment. Plaintiff did not return to work for two days and was fired. The court denies summary judgment on plaintiffs retaliatory discharge claim.
IT IS THEREFORE BY THE COURT ORDERED that defendant's motion for summary judgment (Doc. 26) is granted in part and denied in part.
Copies of this order shall be mailed to counsel of record for the parties.
IT IS SO ORDERED.
Dated at Kansas City, Kansas this 7th day of April, 2000.
____________________________ G. T. VanBebber United States District Judge