Opinion
Case No. 3:02-CV-7004
September 18, 2002
ORDER
Plaintiff Jerome Taylor brings this suit against defendant Art Iron, Inc. claiming that defendant terminated his employment seniority in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Ohio Revised Code § 4112.01 et seq. This court has jurisdiction pursuant to 28 U.S.C. § 1331. Pending is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, defendant's motion shall be granted.
BACKGROUND
Art Iron hired Jerome Taylor in 1990, and he soon began working as a fabricator. To fabricate the steel, plaintiff often manually moved I-beams and other parts weighing more than 50 pounds. He then welded the steel, a task requiring him to stand, stoop, bend, and climb.
Taylor had injured his left knee in 1987 while working for Schindler Elevator, receiving workers' compensation. In 1993, the plaintiff took a medical leave from Art Iron to have left knee surgery, receiving workers' compensation under the Schindler Elevator claim. In November 1999, plaintiff took a medical leave from defendant to have a second surgery on his left knee, reactivating the Schindler Elevator claim. In January 2000, plaintiff had surgery on his right knee, triggering short-term disability payments from defendant. Plaintiff returned to Art Iron on September 5, 2000.
Plaintiff worked for one week, apparently with no medical restrictions, and left when defendant would not let him return to light duty. Plaintiff alleges that during the week of September 5, 2000, Art Iron's superintendent, Donald Miller, told him that he could not be assigned to light-duty work because he was not hurt while working for defendant. Defendant sent plaintiff home, and plaintiff returned to medical leave, performing no work for defendant after September 12, 2000.
Plaintiff alleges the week's work hurt his knee. On September 13, 2000, plaintiff's surgeon recommended a third surgery to his left knee. The surgeon gave plaintiff a note telling him not to bend, stoop, twist, lift, or carry, and telling him to avoid any work that could not be performed while sitting. Plaintiff had the third left knee surgery in December, 2000, and again began receiving workers' compensation benefits under the Schindler Elevator claim.
On May 22, 2001, plaintiff's doctor wrote, "continue same work restrictions permanently [patient] will never be 100% for [bilateral] knee." (Def. Ex. D.) Plaintiff sent the note to defendant on July 24, 2001. An August 14, 2001, doctor's note read, "Permanent restrictions as of 5/22/01: sit down job only. No bending, stooping, or twisting. No lifting or carrying." (Def. Ex. E.)
On August 30, 2001, plaintiff sent defendant the August 14, 2001 note and requested a job within those physical restrictions. The request read, in pertinent part: "[Plaintiff] is respectfully requesting a sit-down job only, with no bending, stooping or twisting and no lifting or carrying." (Def. Ex. F.) The Art Iron superintendent and human resources manager evaluated the plaintiff's physical restrictions and concluded plaintiff was physically unable to return to his job. They also concluded that Art Iron had no other open jobs plaintiff was qualified to perform.
On September 13, 2001, defendant terminated plaintiff under § 17(A)(6) of plaintiff's collective bargaining agreement, which allowed Art Iron to terminate any employee who had not performed any work for defendant during one full year.
On October 29, 2001, plaintiff requested reinstatement to Art Iron, again simply asking for a "sit down job only, no bending, stooping or twisting, and no lifting or carrying greater than 0 pounds." (Def. Ex. H.) He was not reinstated.
Taylor filed his complaint against Art Iron on January 3, 2002, claiming discrimination in violation of the Americans with Disabilities Act and the corresponding Ohio statutes.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the nonmoving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
DISCUSSION I. Jurisdiction
Before I reach the merits of the case, I will discuss two related jurisdictional issues. The first issue is whether Taylor improperly filed suit in federal court before he filed his EEOC charge; that is, whether the EEOC filing is a jurisdictional prerequisite or can be waived in this case. The second issue is whether the plaintiff's EEOC charge was timely filed.
A. Whether EEOC filing can be waived
Plaintiff filed his complaint on January 3, 2002 and filed his verified EEOC charge on July 11, 2002, receiving his right-to-sue letter on July 26, 2002.
A claimant who wishes to bring a lawsuit under the Americans with Disabilities Act ("ADA") must file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the alleged discrimination. Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 309 (6th Cir. 2000); see 42 U.S.C. § 12117 (a); 42 U.S.C. § 2000e-5 (e)(1). An employee may not file suit under the ADA if he or she does not possess a right-to-sue letter from the EEOC, because he or she has not exhausted his or her administrative remedies. 42 U.S.C. § 2000e-5 (f)(1); 42 U.S.C. § 12117 (a) (applying procedures from § 2000e-5 to ADA claims); see also Parry, 236 F.3d at 309.
But the employee's failure to obtain a right-to-sue letter before filing suit is not a jurisdictional defect; rather, obtaining the right-to-sue letter is a condition precedent that can be waived by the parties or the court. Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1031-32 (6th Cir. 1998) (adopting this view in the Sixth Circuit); see also Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) (holding that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling).
Under Rivers, Sixth Circuit courts accept jurisdiction of ADA lawsuits filed by plaintiffs who do not yet have right-to-sue letters. See Parry, 236 F.3d at 309 n. 2 (plaintiff filed his complaint on January 27, 1998, and obtained a right-to-sue letter on April 21, 1998). Here, plaintiff eventually received his right-to-sue letter. Defendant desires to waive plaintiff's failure to exhaust his administrative remedies before filing suit. I also waive this condition precedent.
B. Whether EEOC charge was timely filed
Plaintiff alleges discrimination on September 13, 2001, when he was terminated. He filed his verified charge with the EEOC and the OCRC 301 days later, on July 11, 2002.
Title VII of the Civil Rights Act of 1964, as amended, gives a complainant 180 days from the date of the alleged discrimination to file his or her EEOC charge. 42 U.S.C. § 2000e-5 (e)(1). This deadline is extended to 300 days if the complainant also can file his or her charge with a state or local agency. 42 U.S.C. § 2000e-5 (e)(1). Additionally, charges "shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." 42 U.S.C. § 2000e-5 (b).
Under 29 § C.F.R. § 1601.12(b), an EEOC charge is sufficient
when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. A charge that has been so amended shall not be required to be redeferred.
The United States Supreme Court recently upheld this regulation, holding that an otherwise timely filer may verify a charge after the time for filing has expired. Edelman v. Lynchburg College, U.S. ___, 122 S.Ct. 1145, 1152 (2002). In Edelman, plaintiff's attorney sent plaintiff's allegations to the EEOC within the filing deadline. 122 S.Ct. at 1147. The EEOC sent plaintiff a copy of his charge for his verification by oath or affirmation, and plaintiff verified the charge 13 days after the expiration of his 300-day filing deadline. 122 S.Ct. at 1147-48.
The Court in Edelman held that under 29 C.F.R. § 1601.12 (b), the verification on the charge related back to the attorney's letter sent to the EEOC before the deadline expired. 122 S.Ct. at 1152. The Court noted, 122 S.Ct. at 1149 (citations omitted), that the filing deadline and the verification requirement have different purposes:
The point of the time limitation is to encourage a potential charging party to raise a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practice that proves out. The verification requirement has the different object of protecting employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury. This object, however, demands an oath only by the time the employer is obliged to respond to the charge, not at the time an employee files it with the EEOC.
In this case, Taylor could have sought relief from the Ohio Civil Rights Commission, triggering the 300-day deadline. The deadline was July 10, 2002, and plaintiff filed his charge on July 11, 2002. Plaintiff's attorney, however, had contacted the EEOC by or before July 10, 2002. The EEOC's Cleveland district office sent Taylor a letter dated July 10, 2002, containing the number assigned to his charge against Art Iron and referring to information that plaintiff's attorney already had submitted to the EEOC about the alleged discrimination. Attached to the July 10 letter was a copy of the charge itself, which plaintiff verified on July 11, 2002.
Plaintiff's attorney submitted enough information to the EEOC before the filing deadline to enable the agency to prepare the charge for plaintiff's verification by July 10, meeting the test for sufficiency set forth at 29 C.F.R. § 1601.12 (b). Under Edelman and 29 C.F.R. § 1601.12 (b), then, plaintiff's verification one day after the filing deadline relates back in time to his attorney's timely submission, and plaintiff timely filed his charge with the EEOC.
II. ADA and state law discrimination claims
Plaintiff argues defendant violated 42 U.S.C. § 12112 (a) and O.R.C. § 4112.02(A) by terminating him when a permanent knee condition rendered him unable to return to his job. 42 U.S.C. § 12112 (a) provides, "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."
Plaintiff's attorney also alleges violations of 29 C.F.R. § 1630.1 (a), 1630.1(b), 1630.1(c), 1630.4, and 1630.9. The C.F.R. § are the EEOC's implementing regulations, basically restating the ADA standards. The sections are not mentioned in the briefs, and I have not treated them. Furthermore, I do not believe that plaintiff's complaint makes out a separate "failure to accommodate" claim under 42 U.S.C. § 12112 (b)(5)(A)-(B). While this type of claim exists, see Roush v. Weastec, Inc., 96 F.3d 840 (6th Cir. 1996), it appears plaintiff simply has cited §§ 12112(b)(5)(A)-(B) to illustrate the discrimination claim. Even if the alleged violation of these sections constitutes a separate claim, a plaintiff in a failure-to-accommodate claim, like a plaintiff in a discrimination claim, must show he is otherwise qualified for the job. 96 F.3d at 843.
Under O.R.C. § 4112.02(A), it is unlawful "[f]or any employer, because of the . . . disability, . . . of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." The plaintiff seeks damages for violation of the state statute under O.R.C. § 4112.99.
The Ohio Supreme Court has urged courts to look to the ADA for guidance in interpreting Ohio's prohibition on disability discrimination. City of Columbus Civil Serv. Comm'n v. McGlone, 82 Ohio St.3d 569, 573 (1998) ("The federal Americans with Disabilities Act (`ADA') is similar to the Ohio handicap discrimination law. . . . We can look to regulations and cases interpreting the federal Act for guidance in our interpretation of Ohio law."). Because resolution of plaintiff's ADA claim also disposes of his claim under Ohio law, I will analyze this case under the ADA.
Plaintiff alleges defendant discriminated against him by failing to accommodate his alleged disability. The term "discriminate" is defined at 42 U.S.C. § 12112 (b)(5)(A)-(B) as:
(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.
The Sixth Circuit uses a multifactor test to determine whether a plaintiff has made the required showing of discrimination under § 12112. To recover for discrimination, a plaintiff must show that he or she: 1) is an individual with a disability; 2) is otherwise qualified to perform the job requirements, with or without reasonable accommodation; and 3) was discharged solely by reason of the handicap. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1990).
An employee may support a claim of disability discrimination using either direct evidence or indirect evidence. Direct evidence of employment discrimination exists when an employer admits (or the evidence establishes) that its decision was based upon the employee's disability.Monette, 90 F.3d at 1180. Here, though, defendant argues that its decision to terminate plaintiff was based on the terms of the collective bargaining agreement. Plaintiff does not present direct evidence that defendant relied on plaintiff's medical condition when making its employment decision.
A plaintiff may try to establish a prima facie case of discrimination using the indirect standard set forth in Monette. This standard uses the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). It requires plaintiff to show: 1) he or she is disabled; 2) he or she is otherwise qualified for the position; 3) he or she suffered an adverse employment decision; 4) the employer knew or had reason to know of his or her disability; and 5) after rejection or termination the position remained open, or the disabled individual was replaced. Monette, 90 F.3d at 1185 (citations omitted). The fifth element also may be satisfied by showing that similarly situated non-protected employees were treated more favorably.Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 660 (6th Cir. 1999).
If the plaintiff proves these five factors, he or she creates a mandatory inference that the employer intentionally discriminated based on handicap. Monette, 90 F.3d at 1185. The employer then has a burden of producing a legitimate reason for its action, unrelated to the employee's disability. 90 F.3d at 1185-86. If the employer meets that burden of production, the burden of persuasion shifts to plaintiff, who must show that employer's proffered reason is a pretext for unlawful discrimination. 90 F.3d at 1186. At all times, plaintiff retains the ultimate burden of persuasion. Walsh v. United Parcel Serv., 201 F.3d 718, 725 (6th Cir. 2000).
Defendant argues plaintiff has not proven his prima facie case. I agree with defendant's argument, in part. I also find that even if plaintiff has established a prima facie case, he has not met his burden of proving the legitimate reason defendant produces for its action, the terms of the collective bargaining agreement, was asserted as a pretext to conceal discrimination.
The third and fifth elements of plaintiff's prima facie case need not be addressed. Defendant acknowledges that plaintiff's termination on September 13, 2001 constituted an adverse employment action. Likewise, though plaintiff presents no evidence that defendant either sought other applicants for plaintiff's job or replaced him, or that similarly situated non-protected employees were treated more favorably, defendant does not assert that plaintiff's position was eliminated or remained vacant.
A. Employee's prima facie case 1. Whether Plaintiff is disabled
A disability is "(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); see O.R.C. § 4112.01 (A)(13). Plaintiff argues he is disabled under §§ 12102(2)(A) and (C). I first address plaintiff's argument under 42 U.S.C. § 12102 (A).
A physical impairment is "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine." 29 C.F.R. § 1630.2 (h)(1).
Major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2 (i).
A person who is substantially limited in a major life activity is 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)(ii).
Plaintiff alleges he is substantially limited in the major life activity of walking. Plaintiff's knee conditions affect his musculoskeletal system as defined in 29 C.F.R. § 1630.2 (h)(1).
As a general rule, "moderate difficulty or pain experienced while walling does not rise to the level of a disability." Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997). The record shows, however, that plaintiff's difficulty and pain are more than moderate. Plaintiff had three surgeries on his left knee and one on his right knee between 1993 and 2000. The third surgery on plaintiff's left knee, in December 2000, transferred a bone graft from his leg to his knee. In his affidavit of July 22, 2002, plaintiff states he "has a very hard time walking any length of distance, bending, stooping or twisting," his knees cause him "constant pain," and he has "a very hard time standing any length of time." (Pl. Aff. ¶¶ 6-7.) Plaintiff is, therefore, significantly limited in his ability to walk in the same condition, manner, and duration of an average person in the general population. 29 C.F.R. § 1630.2 (j)(1)(ii); see also Hoskins v. Oakland County Sheriff's Dep't, 227 F.3d 719, 725 (6th Cir. 2000) (finding plaintiff substantially limited in major life activities where she was able to perform the activities with some difficulty).
Federal regulations list three other factors to consider in determining whether plaintiff is substantially limited in walling because of his knee conditions: 1) the nature and severity of the impairment; 2) the duration or expected duration of the impairment; and 3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2 (j)(2). As the plaintiff's doctor's note dated August 14, 2001, indicates, plaintiff's restrictions are expected to be permanent. The restrictions, therefore, can be expected to have a long-term or permanent impact on plaintiff's life. Consideration of the factors at §§ 1630.2(j)(1)(ii) and (2) demonstrates that plaintiff is substantially limited in the major life activity of walking. Plaintiff, therefore, meets the definition of "disability" at 42 U.S.C. § 12102 (2)(A), and it is unnecessary to consider plaintiff's alleged disability under § 12102(2)(C).
2. Whether defendant knew or had reason to know of plaintiff's disability
An employer has notice of the employee's disability when the employee tells the employer that he is disabled. Hammon v. DUE Airways, Inc., 165 F.3d 441, 450 (6th Cir. 1999). The employer is not required to speculate as to the extent of the employee's disability or the employee's need or desire for an accommodation. Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046-47 (6th Cir. 1998). Here, plaintiff provided several doctor's slips to the defendant between 1999 and 2001 detailing plaintiff's physical condition and restrictions, and the August 14, 2001 doctor's note contained plaintiff's permanent physical restrictions. Defendant, therefore, knew of plaintiff's disability.
3. Whether plaintiff is otherwise qualified for the position
A "qualified individual with a disability" is one
who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this title, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.42 U.S.C. § 12111 (8); see also O.A.C. § 4112-5-02(K). The relevant time for determining whether the plaintiff is a "qualified individual with a disability" is at the time of discharge. Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 884 (6th Cir. 1996). The inquiry, thus, will be based on plaintiff's condition on September 13, 2001.
a. Whether plaintiff could have performed fabricating job
I first will consider whether plaintiff could have performed the essential functions of his job as a fabricator without reasonable accommodation.
The term "essential functions" means the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. § 1630.2 (n)(1). The regulation contains a non-exhaustive list of factors courts may consider to determine whether a function is essential:
(i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs.
The inquiry into whether a function is essential should be based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved. Hall v. United States Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988); see also Hoskins, 227 F.3d at 726.
According to Art Iron's written description of Taylor's job, the essential elements of the "fabricator A" position included standing (100 percent essential), carrying objects up to 15 pounds (80 percent essential), pushing and pulling objects up to 30 pounds (10 percent essential), and lifting objects up to 50 pounds (5 percent essential). (Aff. of A. Miller, Ex. B).
After Art Iron received plaintiff's August 14, 2001 doctor's note limiting plaintiff to a "sit down job only," and plaintiff's August 30, 2001 request for a "sit-down job," Art Iron plant superintendent Donald Miller discussed plaintiff's employment with Art Iron human resources manager Alan Miller (no relation). Donald Miller and Alan Miller evaluated the doctor's note, compared plaintiff's physical restrictions with the essential elements of his "fabricator A" position, and decided that Taylor could not return to his job as a fabricator because of his physical restrictions. In this case, plaintiff also admits that his permanent work restrictions contained in his August 14, 2001 doctor's note are inconsistent with the essential functions of his fabricating job.
The essential elements of standing, carrying, pushing, pulling, and lifting are wholly inconsistent with plaintiff's physical restrictions on September 13, 2001. I conclude that plaintiff could not have performed the fabricating job without reasonable accommodation when he was terminated, based on consideration of the elements in the written job description, the testimony of Alan Miller and Donald Miller, and the testimony of plaintiff himself, as allowed under 29 C.F.R. § 1630.2 (n)(1).
b. With reasonable accommodation
I turn to the question of whether plaintiff could have performed his fabricating job with reasonable accommodations.
A reasonable accommodation can consist of making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to a vacant position, and acquisition or modification of equipment or devices. 42 U.S.C. § 12111 (9)(A)-(B); see also O.A.C. 4112-5-08(E).
Plaintiff bears the initial burden of proposing an accommodation and establishing that the accommodation he or she seeks is objectively reasonable. Monette, 90 F.3d at 1183. If plaintiff proposes an objectively reasonable accommodation, the employer has the burden of persuasion to show an accommodation would impose undue hardship. Monette, 90 F.3d at 1183-34.
42 U.S.C. § 12111 (10)(B) defines "undue hardship" as an action requiring significant difficulty or expense, when considered in light of:
(i) the nature and cost of the accommodation needed under this Act; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of such entity; the geographical separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
Here, plaintiff does not allege there were any reasonable accommodations that could have enabled him to perform the essential elements of his fabricating job as of September 13, 2001. Plaintiff, therefore, was not a "qualified individual with a disability" as to the fabricating job when he was terminated.
c. Whether plaintiff could have been reassigned to a vacant position, with or without reasonable accommodation
Though plaintiff could not have performed his fabricating job even with reasonable accommodations, plaintiff alleges that he could have remained employed with defendant with a different type of reasonable accommodation: reassignment. 42 U.S.C. § 12111 (9)(B).
Generally, transfer or reassignment of an employee is considered only if accommodation within the individual's current position would pose an undue hardship. Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998); see also Pattison v. Meijer, Inc., 897 F. Supp. 1002, 1007-08 (W.D. Mich. 1995). It is proper, therefore, to consider whether plaintiff could have been transferred or reassigned within Art Iron, because accommodating him within his fabricating position would have posed undue hardship to Art Iron under 42 U.S.C. § 12111 (10)(B).
Reassignment will not require creating a new job, moving another employee, promoting the disabled employee, or violating another employee's rights under a collective bargaining agreement. Cassidy, 138 F.3d at 634; Pattison, 897 F. Supp. at 1007-08. Under 42 U.S.C. § 12111 (9)(B), the employer only needs to reassign the employee to a vacant position. 138 F.3d at 634. The position must be vacant when the disabled employee needs it, the court in Monette concluded: Employers simply are not required to keep an employee on staff indefinitely in the hope that some position may become available some time in the future. 90 F.3d at 1187.
In this case, Art Iron superintendent Donald Miller and human resources manager Alan Miller considered whether plaintiff could be reassigned within Art Iron. Alan Miller testified that after they concluded plaintiff could not perform his fabricating job, they also concluded plaintiff could not be reassigned within Art Iron: "[w]e also found no other open jobs for which Mr. Taylor was qualified." (Aff. of Alan Miller, ¶ 3.)
Plaintiff alleges that as of October 29, 2001, he could have returned to Art Iron with a steel processor job, a job punching holes in I-beams, and jobs in the parts department.
Plaintiff does not present evidence a steel processor job was vacant when he was terminated, nor has he shown he could have performed the job.
Punching holes in I-beams was one part of a processor's job. Plaintiff does not present evidence a hole-punching job was vacant when he was terminated.
Plaintiff also does not present evidence he could have performed the job. According to Art Iron superintendent Donald Miller, a hole-puncher used a CAC-operated machine, which required the worker to get inside the machine at least 12 times a day to change its tooling. The machine operator also was required to maintain the machine every day by wiping it, sweeping around it, and bending down to scoop metal shavings under it. Under 29 C.F.R. § 1630.2 (n)(1)(i), I may consider the employer's description of essential functions in concluding plaintiff could not have performed this job. Plaintiff, additionally, proposes no reasonable accommodations that could have allowed him to perform it.
Even if he had proposed such accommodations, plaintiff's argument still would fail because an employer is not required, under Cassidy, to split an existing job so that a disabled employee can do part of it. The ADA does not require employers to modify job duties to accommodate people who are not physically capable of performing them. Marcum v. Consolidated Freightways, 48 F. Supp.2d 721 (N.D. Ohio 1999); see also Hoskins, 227 F.3d at 730 (plaintiff suggested she could be assigned a light job that rotated among several staff members; court decided the request essentially would require creating a new position). Defendant was not required to split the processor job and allow plaintiff to be a hole-puncher.
Plaintiff alleges he could have worked in the parts department. As noted, parts department duties constituted one part of a processor's job. The ADA does not require employers to split existing jobs, so plaintiff was not entitled to reassignment in the parts department.
Plaintiff notes, though, that Art Iron allows employees with injuries caused by work at Art Iron to return with restricted duties. For example, an Art Iron processor was injured on the job and returned to lighter work in the parts department until she had recuperated.
This does not establish, however, that plaintiff was entitled to permanent reassignment to the parts department. First, plaintiff's left knee injury was not caused by work at Art Iron. Second, plaintiff was not seeking a temporary reassignment but a permanent transfer. "It would frustrate the ADA for permanently impaired employees to fill temporary light-duty assignments when those jobs have been set aside specifically for recuperating employees." Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) (ruling that permanently restricted employees should not be placed into light-duty jobs designated by defendant as temporary rehabilitation-period jobs for injured employees); see also Hoskins, 227 F.3d at 731 (same).
Plaintiff has not shown, further, that a job in the parts department was vacant when he was terminated. He also has not shown he could have performed that job. Parts department duties required lifting heavy bags of nuts and bolts, according to testimony of defendant's superintendent Donald Miller. Given his physical restrictions, plaintiff could not have performed this job given his physical restrictions.
Plaintiff alleged a reasonable accommodation would have allowed him to work in the parts department. He proposed using a dolly to transport the parts. Defendant's superintendent testified that plaintiff still would have to lift heavy objects, even if he used a dolly. A job in the parts department, therefore, was not a "sit-down job," which plaintiff required.
Finally, plaintiff seems to allege that he could have performed a job in the parts store. This job, however, was created in early 2002, roughly four months after plaintiff was terminated.
Though an employer may be required to reassign an employee to a position that currently is unavailable but will become vacant within a reasonable amount of time, this principle does not apply if a job's availability is not anticipated in the near future. Hoskins, 227 F.3d at 729 (plaintiff fired on November 7, 1997 proposed she could have been placed in a job that started on January 1, 1999; court found this was not a reasonable accommodation).
Here, the availability of the parts store job was not anticipated when plaintiff was terminated. Donald Miller testified that defendant first considered creating the job in January 2002. Placing plaintiff in that job, therefore, would not have been a reasonable accommodation.
Plaintiff alleges he was ready to return to work on September 17, 2001. Plaintiff had not, however, told the company what type of job he was ready to perform that day. Plaintiff never formally requested an assignment to any named position. Plaintiff's request for a "sit-down only" job is not, therefore, an objectively reasonable accommodation. See also Cassidy, 138 F.3d at 631 (plaintiff with breathing problems proposed transfer to job in allergen-free environment; such job did not exist, and court ruled she had not proposed objectively reasonable accommodation;)Thompson v. Warner-Lambert Co., 1995 U.S. Dist. LEXIS 20077, *8 (E.D. Mich. 1995) (plaintiff who asked for "whatever [job] the company would have decided" lost on summary judgment because she testified she "felt unable to do her former job, and . . . had no specific job in mind when she sent the letter asking for accommodations to Defendant. Moreover, Plaintiff does not come forward with evidence of any other available job, for which Plaintiff was qualified, that Plaintiff actually applied for and was rejected.")
Plaintiff has not proven he could have performed any vacant job at Art Iron, with or without reasonable accommodation. Consequently, plaintiff has not proven he was a qualified individual with a disability under 42 U.S.C. § 12111 (8), and plaintiff's prima facie case fails.
B. Whether defendant has met its burden of production
Even if the plaintiff has established his prima facie case under theMonette test, the defendant can meet its burden of producing a non-discriminatory reason for terminating plaintiff. There was a legitimate reason for the adverse employment decision: the terms of the collective bargaining agreement. Section 17(A)(6) of the contract provided:
[T]he continuous service of an employee and his or her seniority status shall be terminated for any of the following reasons, unless the Company and the Union, by agreement in writing, determine otherwise. . . . (6) When an employee has not performed any work for the Company, within the bargaining unit, for twelve (12) consecutive months, by mutual agreement the Company and the Union may extend the time period in cases of injury or illness. Special consideration will be given to employees with ten (10) years of service or more.
Defendant's human resources manager, Alan Miller, testified that his discussion with Donald Miller, about the possibility of accommodating plaintiff's physical restrictions, was the "special consideration" to which employees of more than 10 years were entitled before termination. The union did not object to the termination, nor did it suggest that the seniority provision of the union contract should be waived.
Defendant's termination letter of September 13, 2001 stated Art Iron "could not accommodate" plaintiff's permanent physical restrictions. (Def. Ex. G.) Defendant, therefore, has satisfied its burden of producing a non-discriminatory reason for terminating plaintiff.
C. Whether plaintiff has shown pretext
Once the defendant has produced a non-discriminatory reason for its adverse employment decision, the plaintiff can rebut this reason by showing pretext. An employee can show pretext through evidence that employer's proffered reason had no basis in fact, did not actually motivate its decision, or never was used in the past to discharge an employee. Kocsis, 97 F.3d at 883.
Plaintiff offers no evidence defendant's proffered reason falls under any of the Kocsis factors. Even if plaintiff has met his prima facie case, then, he has not met his burden of proof.
CONCLUSION
It is, therefore,
ORDERED THAT
The defendant's motion for summary judgment be, and hereby is, granted.