Opinion
Case No. 4:01CV01760 AGF
April 7, 2003
MEMORANDUM AND ORDER
Plaintiff Lelia Taylor brought this suit against her former employer, Woodbridge Corporation, under the American Disabilities Act ("ADA"), 42 U.S.C. § 12102 et seq. Plaintiff alleges that Woodbridge failed to make reasonable accommodation for her disability. Plaintiff further alleges that Woodbridge terminated her employment because of her disability and/or as a consequence of its failure to accommodate her disability. Defendant Woodbridge moves for summary judgment.
The parties have consented to the exercise of authority by the undersigned United States Magistrate Judge under 28 U.S.C. § 636 (c).
FACTS
The parties have set forth the following facts in this case. Plaintiff began her full-time employment with Woodbridge in 1989. Woodbridge manufactures foam products, a process which involves the use of toluene diisocyanate ("TDI"). Plaintiff suffers from chronic asthma, which was diagnosed in 1992. Her asthma affects numerous aspects of her daily life, and TDI aggravates her condition. While plaintiff's asthma is treated with medication, it is not controlled. Woodbridge was aware of her condition.
These facts are set forth for summary judgment purposes only, and draw all inferences in favor of plaintiff. This opinion does not relieve either party from proving all facts necessary to the presentation of their claims or defenses at trial.
While employed at Woodbridge, plaintiff was a bargaining unit member, and her position was governed by a collective agreement, including a no-fault, point-based attendance policy. Plaintiff held various hourly positions at Woodbridge, and her exposure to TDI varied from position to position. In 1999, plaintiff was frequently absent due to her asthma, and she was on leave under the Family Medical Leave Act ("FMLA") for 12 consecutive weeks. Sometime after returning to work in December 1999, plaintiff requested that she be allowed to use a respirator. Plaintiff made this request to her direct supervisor four or five times. Plaintiff's supervisor responded that he could not authorize the use of a respirator, and plaintiff would need to be trained. No one at Woodbridge followed through with plaintiff's request, nor did anyone propose alternative accommodations.
Plaintiff was absent a number of days in January and February 2000. On March 9, 2000, plaintiff was one point away from termination under the plant's attendance policy. During work that day, plaintiff had a severe asthma attack. Plaintiff's supervisor sent her home, which she was reluctant to do because she feared that she would lose her job. Later that day, plaintiff was informed by her union steward that she had been terminated. Plaintiff received a letter of termination dated March 13, 2000, stating that she had been terminated under the attendance policy.
On March 16, 2000, plaintiff and her union representative met with Woodbridge's human resources manager. Plaintiff asked whether, as an alternative to termination, she could be transferred to a warehouse position, a position that had minimal exposure to TDI. Woodbridge refused her request. At no time prior to her termination did management notify plaintiff that they wanted to meet with her to discuss her condition or possible accommodations.
STANDARD
Federal Rule of Civil Procedure 56(c) provides that a moving party is entitled to summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and allow the non-moving party the benefit of all reasonable inferences to be drawn from the evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir. 1988).
DISCUSSION
Woodbridge advances four arguments in its motion for summary judgment: (1) plaintiff is not disabled as defined by the ADA; (2) plaintiff cannot perform an essential function of her job, attendance; (3) Woodbridge did reasonably accommodate plaintiff; and (4) plaintiff's claim is barred because employment at Woodbridge presents a direct threat to plaintiff's health.
The ADA defines disability as a "physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A). Breathing is a major life activity. 29 C.F.R. § 1630.2(i); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1206 (8th Cir. 1997). After reviewing the evidence, the Court concludes that a jury could reasonably find that plaintiff's breathing is substantially limited.
An issue of material fact remains regarding plaintiff's ability to perform her essential job functions with or without reasonable accommodation. 42 U.S.C. § 12111(8). Defendant asserts that regular attendance is an essential function of plaintiff's job, and plaintiff is not a "qualified individual with a disability" because she had irregular and sporadic attendance. Pickens v. Soo Line R.R. Co., 264 F.3d 773, 777 (8th Cir. 2001). Plaintiff does not dispute that she was frequently absent or that attendance is an essential function of her job. Rather, plaintiff asserts that her absences were due to her asthma, and if defendant had accommodated her disability, with either a respirator or a transfer to a warehouse position, she could have performed the essential functions of her job. There are sufficient factual disputes about the reasonableness and effectiveness of these two accommodations to preclude the granting of summary judgment on the issue of whether plaintiff could perform the essential functions of her job with reasonable accommodation. Fjellestad v. Pizza Hut, 118 F.3d 944, 956 (8th Cir. 1999).
Defendant has submitted a technical bulletin regarding safety precautions for handling TDI, including the effectiveness of respirators. (Deft. Ex. B) In a motion to strike, plaintiff has objected to the admission of the document, arguing that it is inadmissable hearsay. The Court need not decide the evidentiary issue at this time, because even if the Court were to admit the document for the truth of the matter asserted, there remains a dispute of material fact regarding the effectiveness of respirators against exposure to TDI under the conditions in Woodbridge's plant. To the extent plaintiff is asserting that the defendant should be precluded from using the bulletin at trial, the Court will defer ruling at this time and will take up the issue shortly before the time of trial.
In regard to the third issue, there remains a dispute of material facts whether defendant accommodated plaintiff. At one point in 1995, Woodbridge assigned plaintiff to a position with less exposure to TDI, and the company often allowed her to use medical leave. There are factual disputes about whether these were indeed accommodations under the ADA.
The Court notes that FMLA leave is not designed to be an accommodation for purposes of the ADA. FMLA leave ensures job security for eligible employees who are unable to perform the functions of their job for a temporary period of time due to a serious health condition. 29 U.S.C. § 2611 et seq.; Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002).
As its fourth ground for relief, defendant argues that working in the plant is a direct threat to plaintiff's health, consequently, it need not accommodate her under the ADA. Plaintiff argues that defendant is precluded from making this argument, because Woodbridge failed to raise the issue as an affirmative defense in its answer. The Court need not decide the pleading issue at this junction, however, because defendant has not shown uncontroverted evidence that plaintiff was terminated because exposure to TDI was a direct threat to her health. 29 C.F.R. § 1630.15(b)(2); Chevron U.S.A., Inc. v. Echazabal, 122 S.Ct. 2045, 2048-49 (2002). Moreover, there remains a dispute of material fact about whether plaintiff can perform her job safely with reasonable accommodation. Id. See also 42 U.S.C. § 12113(a).
Accordingly,
IT IS HEREBY ORDERED that defendant's motion for summary judgment is denied. (Docket #29).
IT IS FURTHER ORDERED that plaintiff's motion to strike, for purposes of the summary judgment motion, is hereby denied as moot, and that a ruling on the admissibility of the document for purposes of trial is hereby deferred until trial.
This case remains set for jury trial on May 5, 2003 at 9:00 a.m.