Opinion
Case No. 98-4143-DES
May 16, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion for Summary Judgment (Doc. 100) brought pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiff presents claims of racial harassment, discriminatory discharge, disability discrimination, and workers' compensation retaliatory discharge. Defendant seeks summary judgment on each of the claims. For the following reasons, defendant's motion is granted.
I. BACKGROUND
The following facts concerning plaintiff's claims are either uncontroverted or, if controverted, are construed in a light most favorable to the plaintiff.
Plaintiff is an Asian female, who is approximately four feet eight inches tall and weighs 120 pounds. On August 23, 1993, plaintiff began working in the bakery at the Wal-Mart in New Llano, Louisiana. On her application, plaintiff informed defendant of her limitation of lifting very heavy objects over one hundred pounds. Plaintiff testified that she injured her wrist while working at the Wal-Mart in Louisiana. There is no evidence that plaintiff reported the incident to anyone at Wal-mart. According to plaintiff, a doctor released her to go to work but warned her not to lift heavy objects. Plaintiff also testified that she hurt her hip when she worked at the Louisiana Wal-Mart store. At the time of the injury, plaintiff was told to refrain from walking and sit on a stool.
In November 1995, plaintiff transferred from the Wal-Mart store in Louisiana to the Hyper-Mart store in Topeka, Kansas. Plaintiff was not allowed to begin work immediately. Store manager Steve Phillips testified that he had not received the transferring paperwork before plaintiff arrived for work. Plaintiff was not allowed to begin work until after management had researched the situation. Plaintiff's supervisors included Patricia Paradise, co-manager, and Donna Schley, assistant manager. After beginning work at Hyper-Mart, plaintiff did not tell anyone that she had any lifting restrictions.
On March 31, 1996, plaintiff went to the hospital emergency room complaining of pain in her right wrist, which resulted from picking up heavy equipment at work the previous day. Plaintiff was diagnosed with wrist strain, given Ibuprofen, and told to apply heat and wear a wrap for the next three to four days. On May 3, 1996, plaintiff returned to the emergency room for her wrist. Plaintiff was restricted from pulling, pushing, or lifting over ten pounds for one week. On May 10, 1996, plaintiff returned to the hospital. The doctor prescribed ibuprofen and left the restrictions in place. On May 21, 1996, plaintiff requested that the doctor give her permanent restrictions of no pulling, pushing, or lifting. The doctor refused to assign permanent restrictions but continued plaintiff's temporary restrictions. The doctor also ordered nerve tests. The doctor commented: "Basically, I think she is de-conditioned. I even wonder whether she really has any significant tendinitis or not, because she doesn't have any pain at home. She just says that she cannot do the work of lifting, pulling, pushing anything." (Def. Ex. T)
On May 4, 1996, plaintiff again saw the doctor, who ordered her to wear a splint at all times at work. Plaintiff repeated her request for permanent restrictions, which the doctor denied. The doctor noted that plaintiff's examination was totally benign, and that plaintiff failed to keep her appointments with occupational therapy or nerve conduction studies. On July 27, 1996, plaintiff saw a doctor for wrist pain. The doctor noted that plaintiff's examination was "essentially unremarkable" and he did not believe surgery would be helpful. On July 2, 1996, plaintiff saw a doctor for wrist pain. The doctor continued plaintiff on her restrictions. On July 11, 1996, plaintiff again saw a doctor for wrist pain. She informed the doctor that even light duty bothered her, but she admitted she was not wearing the splints the doctor recommended. Plaintiff claims she is disabled due to the above described injuries to her hips, knee, and wrist, and that defendant discriminated against her due to her disability.
On June 10, 1997, plaintiff alleges she was terminated. The specific facts surrounding that day are discussed below. On June 11, 1997, plaintiff filed claims for discrimination and workers' compensation. Plaintiff claims she was discharged in retaliation for suffering an injury which could result in a workers' compensation claim. Plaintiff also claims she was discharged because of her race. In addition to retaliatory and discriminatory discharge, plaintiff claims that she suffered racial harassment while she worked at Hyper-Mart. The specific instances of alleged harassment are discussed below.
II. STANDARD FOR SUMMARY JUDGMENT
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). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The substantive law identifies which facts are material. Id. at 248. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The movant need not negate the nonmovant's claim. Id. at 323. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323.
A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir. 1986) ("The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues."). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.
III. DISCUSSION
Plaintiff presents claims of racial harassment, discriminatory discharge, disability discrimination, and workers' compensation retaliatory discharge. Each claim is discussed below.
A. Racial Harassment
Title VII prohibits racial harassment in the workplace. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987). Plaintiff claims the racial harassment she experienced created a hostile work environment. In order to survive summary judgment, a plaintiff must provide evidence which shows that, "under the totality of the circumstances, (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was racial or stemmed from racial animus." Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998) (citing Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994)). To determine whether the harassment was sufficiently severe or pervasive, the court must consider all the circumstances, including such things as the "frequency of the discriminating 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." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). In order to be actionable, a racially objectionable environment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Id. at 787.
Plaintiff's hostile work environment claim is supported primarily by her own testimony that she was continuously harassed. Plaintiff alleges the following events support her claim of harassment:
(1) Employees made fun of plaintiff's speech, specifically the way she pronounced the letter "P" and "F";
(2) Employees made fun of plaintiff's appearance;
(3) Plaintiff discussed her transfer with management in Topeka over the phone, but when she appeared in person, management informed her the store had no positions available;
(4) Plaintiff was told she was talking too much even though she was talking about company business;
(5) Plaintiff was confronted about using the restroom in the front of the store even though employees are not instructed to use any particular restroom;
(6) Plaintiff was not allowed to eat lunch with a friend/co-employee even though she was on her break;
(7) Plaintiff's bag was searched; and
(8) Plaintiff's supervisors constantly watched her.
This evidence is insufficient to establish a claim of racially hostile work environment. First, plaintiff has not demonstrated that any of the above described incidents were motivated by her race. Plaintiff claims that employees made fun of her appearance, however, the evidence before the court is that employees made fun of plaintiff's height. There is no evidence that employees made fun of plaintiff's Asian features, which would suggest the actions were motivated by race. Plaintiff also claims that employees made fun of the way she pronounced the letters "P" and "F." There is no evidence that her pronunciation of the letters was related to her race. As to plaintiff's claim that Hyper-Mart management told her a position was not available when she appeared in person, the evidence shows plaintiff's transfer paperwork had not yet been received when she arrived for work. The evidence does not support a finding that the decision to not allow plaintiff to begin work immediately was motivated by her race. Likewise, there is no evidence that plaintiff's remaining allegations were motivated by her race. Plaintiff testified that those she worked with never made any racially derogatory comments toward her. In addition, plaintiff never informed anyone at Wal-Mart that she felt she was being harassed.
Second, even if plaintiff could demonstrate that the employees' actions were motivated by plaintiff's race, plaintiff has not presented evidence that the "harassment" was pervasive or severe enough to alter the terms, conditions, or privilege of her employment. Plaintiff could only specifically recall her supervisors Donna Schley and Steve Phillips making fun of her speech on one occasion in November 1996. Otherwise, plaintiff's allegations are simply general statements that employees made fun of her speech. Plaintiff was only temporarily restricted from starting work. Plaintiff was confronted about using the restroom in the front of the store one time. Plaintiff was not allowed to eat lunch with a friend one time. Plaintiff's bag was searched one time in May 1996. As to plaintiff's complaint that her supervisors constantly watched her and told her she was talking too much, it is a supervisor's responsibility to watch over employees to make sure they are working. The court "cannot vilify every supervisor that . . . monitors her employees' conduct." Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211, 1214 (10th Cir. 1998). A supervisor checking on an employee is insufficient to establish a racial harassment claim. See Sharon v. Yellow Freight System, Inc., 872 F. Supp. 839, 847 (D.Kan. 1994) (finding no adverse action resulted from a supervisor keeping a log on an employee).
Plaintiff has not shown that the harassment she experienced was motivated by her race or pervasive or severe enough to alter the terms, conditions, or privilege of her employment. The totality of plaintiff's evidence is insufficient to establish racial hostile work environment. Therefore, the court finds summary judgment is granted as to plaintiff's racial harassment claim.
B. Discriminatory discharge
Plaintiff claims she was discharged because of her race. Under Title VII, a plaintiff must prove that he or she was the victim of intentional discrimination. See Equal Employment Opportunity Comm'n v. Wiltel, Inc., 81 F.3d 1508, 1513 (10th Cir. 1996) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). Plaintiff may carry this burden in one of two ways: "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (quotation marks and citation omitted). Plaintiff offers no direct evidence, i.e., "`evidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption,'" to support her claim. Id. (quoting Black's Law Dictionary 460 (6th ed. 1990)) (alterations in original). The court, therefore, must analyze her indirect evidence of discrimination under the familiar burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas framework, a plaintiff has the initial burden of satisfying the prima facie requirements of a Title VII discrimination case. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). If the plaintiff can meet this burden, then the defendant must offer a "facially nondiscriminatory reason for the challenged employment action." Shorter, 188 F.3d at 1208 (citation omitted). Finally, if the defendant can offer a nondiscriminatory reason, then the burden shifts back to the plaintiff to show that defendant's proffered reason is merely pretextual. Id.
To establish a prima facie case of discriminatory discharge, a plaintiff must show: "(1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his qualifications, he was discharged; and (4) the job was not eliminated after his discharge." Kendrick v. Penske Trans. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (citing Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999)). Defendant seeks summary judgment claiming that plaintiff has failed to prove a prima facie case of discriminatory discharge. It is uncontested that plaintiff is a member of a protected class and the position was not eliminated after plaintiff's discharge. The parties dispute whether plaintiff was qualified for her position and whether she was discharged.
Defendant argues plaintiff has failed to establish a prima facie case of discriminatory discharge because plaintiff has not shown that similarly situated non-minority employees were treated differently. However, in Kendrick v. Penske Trans. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000), the Tenth Circuit clarified its position that a plaintiff is no longer required to present evidence that similarly situated non-minority employees were treated differently to establish a prima facie case of discriminatory discharge.
Defendant argues plaintiff can not satisfy the second element of the prima facie case, that she was qualified for her job, because of various performance/disciplinary issues. The Tenth Circuit has held that a plaintiff:
may make out a prima facie case of discrimination in a discharge case by credible evidence that she continued to possess the objective qualifications she held when she was hired, or by her own testimony that her work was satisfactory, even when disputed by her employer, or by evidence the she had held her position for a significant period of time.MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1121 (10th Cir. 1991) (citations omitted). Plaintiff testified that she was qualified to perform her job and was a good worker. Plaintiff's supervisor Patricia Paradise testified that she considered plaintiff a "fair" employee. (Paradise Dep. at 168.) Assistant manager Joe Perez testified that he considered plaintiff a "good worker." (Perez Dep. at 73.) In addition, plaintiff was an associate at Wal-Mart for four years prior to her "discharge," with two of those years at the Topeka Hyper-Mart store. Considering the length of plaintiff's employment with defendant and the ratings of her performance by her supervisors, the court finds that plaintiff has met the second prong of the prima facie case.
As to the third element, defendant argues plaintiff was not discharged, rather she voluntarily terminated her employment. The evidence before the court establishes the following scenario: (1) plaintiff was coached regarding her work performance; (2) she disagreed with the coaching, but never read the coaching form; (3) plaintiff was told that if she did not sign the form, she could be terminated; (4) she refused to sign the coaching form; (5) plaintiff said she would rather quit than be fired; (6) plaintiff said she quit and gave a two week notice; (7) the supervisors refused to accept a two week notice; and then (8) plaintiff walked out of the room. Under these circumstances, plaintiff has not established that she was terminated. Plaintiff specifically testified that she quit her job before she was allegedly fired.
Coaching is the term used by defendant to describe a disciplinary session where the supervisor and employee discuss the employee's deficiencies and need for improvement.
The following excerpt from plaintiff's deposition clearly shows that plaintiff quit before she was allegedly fired:
Q: No . . . what was it Donna said to you that caused you to say, I would rather give two weeks written notice?
A: I don't remember. I don't remember.
Q: Prior to your saying I want to give two weeks written notice, did Donna tell you you were fired?
A: No.
Q: So your statement, I want to give two weeks written notice, occurred before Donna said you were fired?
A. Yes.
(Scott Dep. at 151.)
Plaintiff told two subsequent employers that she voluntarily left Wal-Mart. In addition, plaintiff's exit interview form, completed by her supervisors, states that plaintiff "walked off the job, refused to sign coaching and said she was quitting." Plaintiff has not established that she was discharged.
The court finds plaintiff has not established a prima facie case of discriminatory discharge. Because of this finding, it is unnecessary to discuss the parties' remaining arguments. Therefore, summary judgment is granted as to plaintiff's discriminatory discharge claim.
C. Disability Discrimination
Plaintiff claims that she was disabled due to injuries to her hips, knee, and wrist, and she was discriminated against due to her disability. The American's with Disabilities Act ("ADA") prohibits a covered entity from discriminating against a "qualified individual with a disability" because of the individual's disability with respect to terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). See, e.g., Sutton v. United Air Lines, Inc., 130 F.3d 893, 897 (10th Cir. 1997); Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir. 1995).
When considering a claim brought under the ADA, the court is once again guided by the McDonnell Douglas analytical framework. See Williams v. Widnall, 79 F.3d 1003, 1005 n. 3 (10th Cir. 1996) (explaining application of the analysis in cases under the ADA). The first step requires plaintiff to demonstrate a prima facie case. To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) she is a disabled person within the meaning of the ADA; (2) she is qualified, that is, she is able to perform the essential functions of the job, with or without reasonable accommodation; and (3) she suffered adverse employment action because of her disability. See Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Defendant argues plaintiff is not disabled within the meaning of the ADA.
Under the ADA, a person is considered to have a disability if that individual either (A) has a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (B) has a record of such an impairment, or (C) is regarded by the employer as having such an impairment. 42 U.S.C. § 12102 (2). Plaintiff appears to claim she is disabled only under subsection C, because she is regarded by defendant as having physical impairments which substantially limit major life activities. However, the court will analyze plaintiff's claim under all three subsections.
1. Evidence of Disability
There exists a three-step process for determining whether a plaintiff has a disability under the first subsection of the ADA's disability definition. Bragdon v. Abbott, 524 U.S. 624, 631 (1998). First, the court must determine if plaintiff suffers from a physical impairment. Id. Second, the court will identify those life activities affected by the impairment and determine whether they are "major" life activities under the ADA. Id. Third, the court determines whether plaintiff's impairment "substantially limits" the major life activities identified in step two. Id. The EEOC's regulations implementing the ADA define the term "substantially limits" to mean:
Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, and reaching. See 29 C.F.R. Pt. 1630, App. 1630.2(i).
(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). The three factors to be considered when determining whether an individual is substantially limited in a major life activity are: "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he 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).
First, plaintiff claims she is disabled because an injury to her hip restricted her ability to walk and required her to sit. Plaintiff has not presented any evidence that this injury substantially limits a major life activity. The only evidence of the injury to plaintiff's hip is her own testimony. Plaintiff testified that she hurt her hip when she worked at the Wal-Mart store in Louisiana. At the time of the injury, plaintiff was told to refrain from walking and sit on a stool. These restrictions were not in place at the time plaintiff moved to Topeka. Plaintiff testified that she did not tell anyone at the Topeka Hyper-Mart store about the injury. The only medical record of this injury is a May 3, 1996, doctor's note stating plaintiff was suffering from an old hip injury. There is no evidence to suggest that plaintiff's hip injury substantially limited her ability to walk or stand at the time she worked at the Topeka Hyper-Mart store.
Second, plaintiff claims she is disabled because her knee injury prevented her from bending, squatting, kneeling, or prolonged walking or standing. The court finds no evidence to support plaintiff's claim that her knee injury is disabling. On March 8, 1997, plaintiff injured her right knee when she slipped on a water spot at work. Plaintiff was taken to the hospital and diagnosed with contusion to the right knee and elbow. The doctor told plaintiff to use ice on her knee for the next twenty-four to forty-eight hours. Plaintiff was placed on light duty for only twenty-four hours, with no bending, squatting, kneeling, or prolonged walking or standing. There is no evidence that plaintiff's knee injury substantially limited a major life activity.
Finally, plaintiff claims she is disabled because an injury to her wrist prevents her from lifting ten pounds, pulling, and pushing. Several courts have held that a lifting restriction, by itself, is not sufficiently severe to constitute a disability. See Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617 (8th Cir. 1997) (holding ten to twenty pound lifting restriction is not a disability); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996) (holding ten pound lifting restriction is not a disability). Other courts have held that a permanent lifting restriction, when combined with other limitations, is sufficient to create a genuine issue of material fact as to whether a plaintiff is disabled. See Martin v. Lockheed Martin Missiles Space, No. 96-4620, 1998 WL 303089 (N.D.Cal. 1998) (holding material issue of fact created when plaintiff, who had two surgeries for carpel tunnel syndrome, had the following permanent restrictions: lifting ten pounds and sustained hand activity); Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1100 (S.D.Ga. 1995) (holding material issue of fact created when the plaintiff, who had knee surgery and a laminectomy, had the following permanent restrictions: lifting ten to fifteen pounds, sitting more than sixty minutes, standing more than thirty minutes, walking continuously more than three minutes).
In Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996), the Tenth Circuit held a fifteen pound lifting restriction was sufficient to create a genuine issue of material fact as to whether Lowe was disabled. In addition to the lifting limitation, Lowe's restrictions included no stooping or bending, the need to sit down occasionally, and the need to avoid stairs. Lowe, 87 F.3d at 1174. When evaluating the three factors laid out in the regulations, the court found that Lowe suffered from multiple sclerosis ("MS"), MS is a neurological disease for which there is no known cure, as a result of the MS, Lowe was unable to lift more than fifteen pounds, and the long-term impact of the disease would vary depending on the form the MS takes. Id. at 1172.
Plaintiff's circumstances are distinguishable from those in Lowe. First, plaintiff's medical condition is not severe, especially when compared to the combination of lifting restrictions and other impairments, such as MS, carpel tunnel syndrome, or a laminectomy procedure, found by the courts to be disabling. There is no other evidence that plaintiff's wrist injury was severe beyond the temporary physical restrictions. When plaintiff first went to the doctor for wrist pain, on March 31, 1996, plaintiff was diagnosed with wrist strain, given Ibuprofen, and told to apply heat and wear a wrap for the next three to four days. Although temporary restrictions were imposed one month later on May 3, 1996, the doctor's notes reveal the physical examinations were "totally benign" and "essentially unremarkable." The doctor did not believe surgery was necessary. None of plaintiff's doctors commented that plaintiff's injury was severe. On May 21, 1996, a doctor commented: "Basically, I think she is de-conditioned. I even wonder whether she really has any significant tendinitis or not, because she doesn't have any pain at home. She just says that she cannot do the work of lifting, pulling, pushing anything." (Def. Ex. T) The doctor further commented: "I think it is all de-conditioning on top of her maybe tendinitis." (Def. Ex. T) (emphasis added). The doctor's records reveal that plaintiff failed to keep her appointments with occupational therapy and nerve conduction studies. In addition, plaintiff failed to wear the splints as directed by her doctors to prevent future injury. The evidence before the court does not suggest plaintiff's wrist injury was severe.
Second, plaintiff has not presented any evidence that her wrist injury, at the time of discharge was anything but temporary. Plaintiff's doctors repeatedly refused to issue permanent restrictions. Plaintiff has not presented any evidence as to the duration or expected duration of her wrist injury. There is no evidence that plaintiff's wrist injury had a permanent or long term impact or was expected to have a permanent or long term impact.
Applying the three factors identified in the regulations, the court finds plaintiff has not presented evidence sufficient to create an issue of fact as to whether she is disabled. Plaintiff has not demonstrated that she is substantially limited in a major life activity.
2. Record of Impairment
Even though plaintiff has failed to show that any of her identified major life activities are substantially limited, the ADA's definition of "disability" may be satisfied by "a record" of an impairment that substantially limits one or more life activities. See 42 U.S.C. § 12102(2)(B). "The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability." 29 C.F.R. Pt. 1630, App. 1630.2(k). To satisfy this section, a plaintiff must demonstrate that "a record relied on by an employer indicates that the individual has or has had a substantially limiting impairment." Id. In other words, the record must show an impairment that satisfies the ADA. Id. As discussed above, plaintiff's medical record does not contain information showing that plaintiff's impairments have substantially limited any major life activities. Plaintiff has not demonstrated a record of disability.
3. Regarded as Disabled
Plaintiff claims even if she does not have physical impairments which substantially limit major life activities or a record of disability, she is disabled because she is regarded by defendant as having physical impairments which substantially limit major life activities. See 42 U.S.C. § 12102(2)(C). The Supreme Court held that to be "regarded as disabled," a plaintiff must show "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999). In other words, even if plaintiff is not actually disabled, she is "disabled" under the ADA if defendant perceived her as such.
Plaintiff claims defendant believed she was disabled and restricted from lifting, pulling, and pushing, due to her wrist injury, and bending, squatting, kneeling, and prolonged walking and standing due to her hips/knee. To be successful, plaintiff must present sufficient evidence showing that defendant believed she was substantially limited, as previously defined under 42 U.S.C. § 12102(2)(A). The only evidence plaintiff appears to offer is the fact that defendant was aware of her injuries. This is insufficient to demonstrate that defendant regarded plaintiff as disabled. Knowledge of a person's injury does not equate to regarding the person as disabled. Kidwell v. Board of County Comm'rs of Shawnee County, 40 F. Supp. 1201, 1221 (D.Kan. 1998) ("The mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that the perception caused the adverse employment action."). Further, the fact that defendant was aware of the injury does not establish that defendant believed that plaintiff's injuries substantially limited any major life activity. There is no evidence that defendant believed that plaintiff's injuries were permanent or severe, or substantially limited a major life activity. Plaintiff has not established that defendant regarded her as disabled.
In light of the above analysis, the court finds plaintiff can not establish that she is disabled under the ADA. Because of this finding, it is unnecessary to discuss the parties' remaining arguments. Summary judgment is granted as to plaintiff's ADA claim.
D. Workers' Compensation Retaliation
Plaintiff claims she was discharged in retaliation for sustaining injuries for which she could file a workers' compensation claim. Kansas adheres to the "employment-at-will" doctrine, which states that an employee may be discharged at any time. Johnson v. National Beef Packing Co., 551 P.2d 779, 781 (Kan. 1976). However, the state recognizes an exception to the employment-at-will doctrine when a employer terminates an employee in retaliation for an employee's exercise of her rights under the Kansas Workers' Compensation Act. Ortega v. IBP, Inc., 874 P.2d 1188, 1191 (Kan. 1994). A plaintiff may "recover by proving that the discharge was `based on,' `because of,' `motivated by' or `due to' the employer's intent to retaliate." Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998) (quoting Brown v. United Methodist Homes for the Aged, 815 P.2d 72 (Kan. 1991)). The plaintiff must establish her claim "by a preponderance of the evidence, but the evidence must be clear and convincing in nature." Ortega, 874 P.2d at 1198.
In examining these state law claims, federal courts are guided by the familiar analytical framework established in McDonnell Douglas. See, e.g., Sanjuan, 160 F.3d at 1298; Barnard v. ADM Milling Co., Inc., 987 F. Supp. 1337, 1344 (D.Kan. 1997). Therefore, in order to present a claim of retaliatory discharge, plaintiff must first present a prima facie case. To establish a prima facie case under Kansas law, a plaintiff must produce evidence demonstrating that: (1) the plaintiff filed a claim for workers' compensation benefits or sustained an injury for which she might assert a future claim; (2) the employer had knowledge of the plaintiff's compensation claim, or that she sustained an injury for which she might file a future claim for benefits; (3) the employer terminated the plaintiff's employment; and (4) a causal connection existed between the protected activity or injury and the termination. Sanjuan, 160 F.3d at 1298 (citing Chaparro v. IBP, Inc., 873 F. Supp. 1465, 1472 (D.Kan. 1995)). Defendant appears to concede that plaintiff has demonstrated the first and fourth elements but disputes that plaintiff has established the second and third elements of the prima facie case.
Defendant argues that plaintiff has not established the second element because plaintiff has failed to show that defendant had knowledge of plaintiff's intent to file the worker's compensation claim. However, to satisfy the second element, the plaintiff need only show that her employer knew she sustained an injury for which she might file a future claim for benefits, not that defendant had actual knowledge of plaintiff's intent to file the claim. See Sanjuan, 160 F.3d at 1298. Plaintiff has presented evidence that defendant was aware that she sustained an injury to her wrist. This is sufficient to satisfy the second element of the prima facie case.
Defendant also argues that plaintiff has not established the third element, that plaintiff was terminated. As discussed above under the heading discriminatory discharge, plaintiff has not presented evidence that she was fired. The evidence, when read in the light most favorable to the plaintiff, demonstrates that plaintiff voluntarily terminated her employment.
The court finds plaintiff has not demonstrated a prima facie case of workers' compensation retaliation. Because of this finding, it is unnecessary to discuss the parties' remaining arguments. Summary judgment is granted on plaintiff's worker's compensation retaliation claim.
IV. CONCLUSION
The court grants summary judgment on all four of plaintiff's claims. Summary judgment is granted as to plaintiff's hostile work environment claim because she has failed to establish that defendant's conduct was severe or pervasive or that the conduct was motivated by plaintiff's race. Summary judgment is granted as to plaintiff's discriminatory discharge and worker's compensation claims because plaintiff has failed to show she was discharged as is required to establish a prima facie case. Summary judgment is also granted as to plaintiff's ADA claim because she has failed to establish that she is disabled within the meaning of the ADA as is required to establish a prima facie case.
IT IS THEREFORE BY THE COURT ORDERED that defendant's Motion for Summary Judgment (Doc. 100) is granted.