Summary
rejecting futile gesture doctrine where plaintiff offered "only his subjective belief that he would have been rejected had he applied for other positions."
Summary of this case from Beveridge v. Northwest Airlines, Inc.Opinion
No. 01-1415-JTM
January 16, 2003.
MEMORANDUM AND ORDER
Plaintiff Robert Collins has brought the present action against Raytheon Aircraft Company for violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Raytheon has moved for summary judgment. Having reviewed the arguments and the evidence submitted by the parties, the court finds that summary judgment is appropriate.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
Collins was interviewed for employment with Raytheon on May 25, 2000 by its Staffing Manager, Larry Oakley. He received a conditional job offer of employment for an Aircraft Line Assembler (Job Code 017) position in Department 819. The offer was conditional on his passing a physical exam, urinalysis, and background check.
Department 819 is assigned to perform work on King Air aircraft. The King Air is turboprop aircraft, manufactured in three models, the King Air 350, the King Air B200, and the King Air C9OB. The C9OB, the smallest of the King Air aircraft, holds five passengers. The largest, the 350, holds nine passengers. Each of the King Air aircraft has a cabin that is 4'9" high and 4'6" wide. The height of the cockpit in each of the King Airs is 4'7" and the width is 4'6."
During the physical examination, which was in part conducted by Christin Preuett, a Registered Nurse in Raytheon's Occupational Health Services Department, Collins was presented with a list of medical conditions and asked to state whether or not he had experienced any of those conditions. He did not indicate that he had experienced severe back pain or injuries, or a herniated disk.
The physical notes state that Collins had a full range of motion in his neck and upper and lower extremities. However, Preuett also noticed that Collins had surgical scars on his back, and noted that he was unable to bend over and touch his toes. Collins told her he had previously had back surgery. In fact, Collins had previously suffered two separate back injuries.
Collins also disclosed that he had undergone arthroscopic surgery on both of his knees. Collins had one surgery on his right knee and two surgeries on his left knee. In addition, Collins also disclosed numerous other injuries during the physical examination, including injuries to his shoulder and wrist. He reported that he suffered from numbness and tingling in his hands and wrists. Finally, he said that he suffers from a heart condition.
Collins first injured his back while working for the City of Augusta on November 5, 1990. He suffered a second back injury on March 9, 1993, when was still employed by the City of Augusta.
Collins claimed that the back injury was job-related, and sought workers compensation benefits. His medical records indicate that he later reported to Dr. Skibba, one of his physicians, that he had injured his back in a rodeo accident. Collins denies a rodeo injury, and denies telling Dr. Skibba the back injury was rodeo-related.
The second back injury involved a herniated disk at L5-S1. This injury resulted in restrictions being placed on Collins by Dr. Robert Eyster and Dr. Ernest Schlachter, whom he saw at the recommendation of his attorneys in the workers compensation proceedings. On August 30, 1993, Dr. Eyster restricted Collins from lifting more than forty pounds, repetitive lifting over thirty pounds, excessive bending over (more than fifteen times per hour), and use of heavy equipment.
Eventually, Collins underwent surgery to attempt to correct the herniated disk. Dr. Robert Eyster performed a laminectomy, diskectomy, and fusion with a bone graft on October 18, 1993, and further noted that the herniated disk at L5-S1 was accompanied by degenerative disk disease. After the surgery, Dr. Schlachter was asked by Collins' attorney to perform an independent medical examination ("IME") for use in the workers compensation litigation against the City of Augusta. The IME stated that Collins would have a fifteen percent permanent partial impairment to the body as a whole, and that level of impairment for another six months.
At the request of Collins' counsel in the workers compensation litigation, Jerry Hardin, a human resources consultant, prepared an evaluation as to his ability to work following his back injury. Hardin opined that Collins' ability to perform work in the open labor market had been reduced by sixty-one percent because of his injury and the permanent restrictions imposed by Dr. Eyster.
In January of 1994, Collins was released to return to work with the City of Augusta. He was restricted from lifting more than 25 pounds, bending, operating heavy equipment, or lifting repetitively.
On July 27, 1994, Dr. Eyster felt that Collins had reached his maximum medical improvement, and released him from treatment. He also believed that Collins was not doing very well and was not tolerating his work that well. He was restricted from any forward bending or working in a bent-over position, lifting more than 25 pounds, doing any work that increased his pain, or operating heavy equipment. Dr. Eyster intended these restrictions to be permanent in nature.
Collins was terminated from his employment by the City of Augusta on August 12, 1994.
On August 31, 1994, Dr. Schlachter prepared another IME, noting that Collins' back had not improved. Because Collins had not improved as anticipated, Dr. Schlachter gave him a thirty-five percent permanent partial impairment to the body as a whole, and issued permanent restrictions including no repetitive lifting more than ten pounds, no single lifts of more than twenty pounds, and no bending, twisting or working in awkward positions more than six times per hour. Furthermore, Dr. Schlachter stated that Collins "should have a job where he can sit part-time and stand part-time." (Def. Exh. 12 at MED0362-0363).
Collins eventually obtained employment in January of 1995. From that time until May 25, 2000, Collins worked in a number of positions for different companies. He operated plastic molding machines for Seeber Manufacturing, worked as an apprentice laborer for Cardwell International, operated grinders and CNC machines for D-J Engineering, worked as a skin polisher and breaking parts out of tools in the bond room at Boeing Wichita, and worked as a construction worker for both Seeber and for Lewis and West.
On February 8, 1995, Dr. Eyster issued restrictions of no lifting in excess of fifty pounds and absolutely no bending forward.
On July 17, 1995, Collins settled his workers compensation claim against the City of Augusta. The settlement was based upon a permanent partial impairment rating of 28% to Collins' back and 31% total.
After Collins settled his workers compensation case, he continued to experience back pain from time to time. For example, on June 18, 1997, he visited Dr. Eyster's office complaining of back pain in the area of his previous L5-S1 fusion.
For reasons that are quite unclear, during the same June 18, 1997 visit to Dr. Eyster in which he was complaining of back pain, Collins obtained a release from the "permanent" restrictions previously imposed by Dr. Eyster. The release in question was not signed by Dr. Eyster. According to Dr. Eyster's testimony, the person who signed the release was Kay Woodruff, an office assistant who is neither a nurse nor a qualified Physician's Assistant. Dr. Eyster testified that it was illogical that Collins' work-related restrictions would be removed on the same day he was seeking treatment due to back pain. Collins was about to apply for a position at Boeing, and was concerned that he would not be able to get a job with the restrictions in place.
The release has quite obviously had the date rewritten with a different writing instrument than was utilized for the remainder of the document. Raytheon has attempted to obtain the original release from both Dr. Eyster and Collins, but it appears not to be available.
On September 27, 1997, Collins, in connection with his employment at Boeing, again visited Dr. Eyster to obtain a release. Dr. Eyster notes state that Collins was able to bend over and touch his toes. He approved Collins' return to work without restrictions, stating that his patient "knows good back saving techniques and will apply them."
Collins went to work for Boeing, where he worked on parts while sitting or standing at a table, or later in the polish shop, where damage to the aircraft skins was repaired. While working at bond room at Boeing, Collins lifted in excess of twenty-five pounds. When he moved to the polish shop, he lifted in excess of fifty pounds. In the jobs at Boeing, Collins engaged in forward bending.
As noted earlier, during his physical examination at Raytheon, the nurse noted that Collins was unable to bend over and touch his toes. This indicated to the company nurse that he had decreased mobility and flexibility.
Because of Collins' complaint about numbness and tingling in his hands and arms, Raytheon asked Collins to undergo nerve conductivity testing. The test, performed by Dr. Bart Grelinger, indicated Collins suffered from "bilateral moderate median nerve neuropathies at the level of the wrist, the left wrist being a little more involved than the right." (Def. Exh. 20.) Collins had never been diagnosed with carpal tunnel syndrome, and had not been subject to restrictions relating to that condition.
After his interview and physical examination at Raytheon, Collins submitted his medical records for review by Raytheon. Dr. David Brown, a company physician, then reviewed the records and issued restrictions on Collins of no lifting more than twenty-five pounds, no bending forward, and no use of heavy equipment. In light of Collins' complaint of numbness, pain and tingling in his hands, wrists, fingers and arms, he was also restricted from repetitive forceful grasping, squeezing, or pinching, and was similarly precluded from prolonged awkward positions of the wrists, hands, and shoulders.
After reviewing the medical records, Holly Landwehr Gilstrap, Raytheon's ergonomist, concluded Collins could not safely perform the essential job functions of an Aircraft Line Assembler in Department 819 because of the limitation on forward bending (not the hand or wrist restrictions). Gilstrap never drew any conclusions with regard to Collins' ability to perform any other job, either within or outside of Raytheon's plant.
Raytheon rescinded its conditional offer of employment on June 28, 2000. Collins was advised that he could be considered for other openings at Raytheon, but he never applied for any other position.
Collins contends that the only part of the hiring process he alleges was discriminatory was the imposition of restrictions limiting him from lifting more than twenty-five pounds, bending forward, and using heavy equipment. He admits that at no point did anyone working for Raytheon state that he was disabled or that he had a handicap or disability. Further, he never discussed with Raytheon his being considered for other positions. He never reapplied for any other positions with Raytheon, or inquired about or researched the availability of other positions with Raytheon.
Dr. Eyster admits that he has never actually observed the performance of the duties of an Aircraft Line Assembler at Raytheon. He acknowledges that Dr. Brown is more familiar with the job duties being performed by Raytheon employees, that having to work in a spread-legged sitting position on the floorboard of an aircraft while installing wiring between one's knees, while risky to anyone's back, would present a particular risk to a person who has had back surgery, that maintaining such a position for hours at a time presents a risk for the likelihood of injury, and that Collins is at an increased risk for re-injury to his back because of his medical history, back surgery, and reduction in the number of spinal disks.
Dr. Brown believed his primary responsibility was to protect employees and to avoid placing an employee in a job that could be injurious to his health.
After the conditional job offer by Raytheon was rescinded, Collins continued working at the Sherwin-Williams plant in Andover. According to Collins, while at Sherwin-Williams, his job duties required him to frequently bend forward.
Collins also stresses that he was required to move and lift 55-gallon steel drums. However, the evidence indicates that this effort was required only when the drums were all or mostly empty. Collins does not know how much the drums weighed.
After Collins voluntarily resigned his employment at Sherwin-Williams, he worked for various employers, including the Appearance Group and Smith Machine Works.
Conclusions of Law
In the present action, summary judgment is appropriate for several reasons. First, Collins has failed to establish a prima facie case under the ADA, since he cannot show either that he was regarded as disabled or had a record of disability. Collins has failed to show, as to either prong of the ADA, that his alleged impairment disqualified him from a class of jobs or a broad range of jobs in various classes. 29 C.F.R. § 1630.2(j)(3)(i). The uncontroverted evidence before the court is that Collins was considered by Raytheon with respect to his ability to perform a single job, the Department 819 Aircraft Line Assembler position. Raytheon's physician and ergonomist, Dr. Brown and Ms. Landwehr Gilstrap, both reviewed Collins's ability to perform the specific job for which he applied; they did not review his ability to perform other jobs. There is no evidence that Raytheon regarded Collins as disabled, or believed that he had a record of disability, as to more than a single, particular job. Accordingly, summary judgment is appropriate. See Sutton v. United Air Lines, 527 U.S. 471 (1999).
Second, Collins has not shown that he is a qualified individual with a disability, 42 U.S.C. § 12111(8), since he has not shown that he could have performed the essential functions of the job, with or without reasonable accommodations. Rather, the uncontroverted testimony of Ms. Landwehr Gilstrap establishes that Collins could not safely perform the essential functions of the Aircraft Line Assembler position with or without reasonable accommodation.
Third, Raytheon is entitled to the affirmative defense set forth in 42 U.S.C. § 12112(b)(6) since its actions reflect setting a standard designed to avoid a direct threat to employee health or safety. See Chevron USA v. Echazabal, ___ U.S. ___, 122 S.Ct. 2045 (2002). Here, the uncontroverted evidence establishes that Collins's physical condition, a fused disk and metal rodding to stabilize his spine, is permanent. The potential harm from additional injury was substantial and severe. Dr. Brown, who has direct experience with the cramped working conditions required by the Aircraft Line Assembler position, concluded that Collins faced an inherently increased risk of additional spinal damage from working in that position, and that the risk posed of this injury would be constant and ongoing from the nature of the job.
Finally, there is no basis in fact for the argument of the plaintiff that it would have been a futile gesture, see Davoll v. Webb, 194 F.3d 1116, 1113 (10th Cir. 1999), for him to have applied for other positions at Raytheon. In essence, Collins offers only his subjective belief that he would have been rejected had he applied for other positions. But the uncontroverted evidence demonstrates that the defendant had not in truth essentially foreclosed the interactive process by its actions. It is uncontroverted that Collins was told he could be considered for other positions at Raytheon. Collins never discussed with Raytheon other positions than Department 819 Aircraft Line Assembler, and he chose not to apply for any other position.
IT IS ACCORDINGLY ORDERED this 16th day of January, 2003, that the defendant's Motion for Summary Judgment (Dkt. No. 82) is hereby granted.