Opinion
Case No. 01-CV-71915
September 14, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
This is a disability discrimination case. Plaintiff Richard Crowe, proceeding pro se, is suing Chili's Restaurant (Chili's) claiming that he was terminated in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Crowe was employed as an assistant manager at Chili's in Warren, Michigan. Chili's says he was terminated for "non-participation" at a management conference. Crowe says he was terminated because of injuries sustained in a car accident a few weeks prior to his termination. This case was originally filed in the Western District of New York, who transferred the case to this district under 28 U.S.C. § 1406(a).
Chili's is an assumed name of Brinker Restaurant Corp. (Brinker), which is the proper defendant in this case and Brinker has moved to amend the pleadings on this ground. The motion is GRANTED. However for simplicity, Brinker will be referred to as Chili's.
Crowe also states that he is a diabetic and had two hypoglycemic attacks during his employment. However, Crowe states he has managed his diabetes without incident and does not appear to make an ADA claim based on his diabetes.
Before the Court is Chili's motion to dismiss under Fed.R.Civ.P. 12(b)(6) on the grounds that Crowe's injuries do not constitute a disability under the ADA and Crowe did not request a reasonable accommodation. Crowe has not filed a response. The motion to dismiss is more appropriately treated as a motion for summary judgment under Fed.R.Civ.P. 12(b). For the reasons which follow, the motion is GRANTED.
The Court ordinarily would have oral argument on this motion. However, in this case, the Court finds that oral argument is not necessary. See E.D. Mich, LR 7.1(e)(2).
The Notice of Motion Hearing required Crowe to file a response on or before August 27, 2001. To date, no response has been received. Also, Crowe's address is listed on the civil cover sheet as a P0 Box in Ellicottville, NY.
II. Background
Crowe began working for Chili's in December of 1999 as an assistant manager assigned to a Chili's restaurant in Dearborn, Michigan. In March of 2000, Eric Estroline (Estroline), an Area Director, assigned Crowe to the Warren, Michigan restaurant. Estroline also evaluated Crowe at that time, being told her was performing adequately and that Chili's looked forward to his input in the Warren restaurant. Crowe accepted the assignment because it reduced his travel and gave him an opportunity to increase business. Crowe says that sales increased in the Warren restaurant while he was assistant manager and that his supervisors, Estroline and General Manager Richard Fahrner (Fahrner) and discussed adding a fourth manager like the other Chili's restaurants, to the restaurant because of increased sales. In September of 2000, Estroline and Fahrner evaluated Crowe; the results of the evaluation are unclear from the complaint, but it appears that Fahrner had some criticisms with Crowe's performance, which included staffing problems.
On September 24, 2000, Crowe was involved in a car accident on his way home from work. The next day, Crowe called Estroline and Fahrner, who told him to report to work on September 29, which he did, Crowe worked the next three days without incident, but told Fahrner that he was only at 50% physical ability. Crowe also states it was difficult to cover all the shifts with only three managers.
A few days later, in early October, Crowe was scheduled to attend a three day management conference in Chicago. Crowe says he told Fahrner that he was concerned about his ability to attend the conference, and that Fahrner assured him that it would be okay and that he would not be expected to fully participate. The first day of the conference included physical activities, in some of which Crowe was unable to participate.
On October 10, 2000, Estroline terminated Crowe because of his "nonparticipation" at the Chicago conference. Chili's says, without supporting documentation, that at the conference Crowe "repeatedly showed up late and fell asleep in meetings." Chili's brief at p. 1.
When Crowe attempted to explain his physical situation, he was presented with a severance agreement with one weeks pay provided he agree not to hold Chili's liable. Crowe apparently did not accept the severance agreement. In his complaint, Crowe characterizes Chili's discrimination as follows:
At no time was termination ever expressed and no written warnings were ever given to Crowe until his termination. No reasonable accommodation was ever given despite his physical condition except 2 days off despite his expressed 50% capacity. I believe Brinker International acted in a discriminatory fashion by not assigning a fourth manager despite the obvious increase in sales. Because of the shortage of managers and employees at Warren, often times there was not reasonable time for meals. They never indicated that my behavior or performance was sub-par until a review shortly before the Chicago meeting. I believe citing non-participatory behavior at the Chicago conference was pre-lexical [sic] since they knew that I was injured in the recent car accident at that time.
On December 12, 2000, Crowe filed a Charge of Discrimination with the Michigan Department of Civil Rights and the EEOC. The Charge characterizes Chili's discrimination as follows:
On September 24, 2000, 1 was involved in a car accident on my way home from work to my home, that caused me severe pain. I informed management of my accident, medical treatment, and I was off work for two days. As a result of the accident I was in severe pain, and not able to sleep at night, which I informed management. Management insisted that I return to work because of the shortage of managers, and that I attend the manager s conference in Chicago during the first week of October 2000, despite my pain and suffering.
On October 19, 2000, 1 was discharged for non-participation at the managers conference. 1 was subjected to different terms and conditions of employment by management even though my condition was known. Other managers were not discharged because of non-participation, or work performance.
I believe that I was discriminated against by management because of my disability, pain and suffering after the accident, in violation of the title I of the American with disabilities Act of 1990, as amended.
Crowe received his right to sue letter on February 1, 2001.
III. Motion for Summary Judgment
Summary judgment will be granted when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a fact finder or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 251-52 (1986)). The Court "must view the evidence in the light most favorable to the non-moving party." Employers Ins, of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir. 1995).
IV. Analysis A. The ADA generally
The ADA prohibits certain employers from discriminating against a qualified individual with a disability because of the disability in regard to, inter alia, the discharge of the individual from employment.See 42 U.S.C. § 12112(a). The ADA further requires that employers "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose and undue hardship on the operation of the [employer's] business." 42 U.S.C. § 121 12(b)(5)(A). A "reasonable accommodation" may include "job restructuring, part-time or modified work schedules . . . and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B). A disabled individual is "otherwise qualified" if he or she "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). A person is "disabled" for purposes of the ADA if she has a physical or mental impairment that substantially limits a major life activity. 42 U.S.C. § 12102(2).
In order to prevail on a claim under the ADA, a plaintiff must establish (1) that s/he is disabled, (2) that s/he is qualified to perform the essential functions of his/her job with or without reasonable accommodation, and (3) that s/he suffered an adverse employment action because of the disability. McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir. 1997). The disabled individual "bears the initial burden of proposing an accommodation and showing that that accommodation is objectively reasonable." Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1183 (6th Cir. 1996) (emphasis in original). If the employer claims that the accommodation would impose an undue hardship, then the employer must establish that fact. Id.
B. Whether Crowe is disabled
Chili's argues that Crowe's injuries from the car accident were temporary in nature and not covered by the ADA. A person is disabled if s/he has "a physical or mental impairment that substantially limits one or more of the major life activities of the individual." 42 U.S.C. § 12102(2)(A). A "physical or mental impairment" is defined to include, inter alia, "[a]ny mental or psychological disorder . . . emotional or mental illness. . . ." 29 C.F.R. § 1630.2(h)(2). A "major life activity" means "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 29 C.F.R. § 1630.2(i). "Substantially limits" means that the individual is "unable to perform a major life activity that the average person in the general population can perform" or the individual is "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity" when compared to the average member of the general population. 29 C.F.R. § 1630.2(j)(1)(i), (ii).
Whether an impairment substantially limits a major life activity requires consideration of "(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 expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(9)(2).
A Chili's correctly points out, short-term, temporary restrictions are not substantially limiting for purposes of the ADA. A condition is temporary if, at the time of termination, the individual does not suffer any manifestation of the condition. In Roush v. Weastec, Inc., 96 F.3d 840, 844 (6th Cir. 1996), the Court of Appeals for the Sixth Circuit held that the mere possibility a condition will recur or that further surgery may be needed in the future is not sufficient to establish that a condition which does not presently affect the individual's ability to work is substantially limiting. The plaintiff in that case underwent surgery for a kidney condition but, at the time of her termination, her kidney condition did not affect her ability to work. Thus, the court of appeals held that the district court correctly concluded that the condition was not a disability.
Other courts have reached similar results regarding temporary injuries and the ADA. See Hein v. All American Plywood Co., Inc., 232 F.3d 482 (6th Cir. 2000) (relying on Roush, holding that temporary hypertension did not "substantially limit" plaintiffs ability to work and therefore not a disability); Vulcu v. Trilox research Laboratory, Inc., 993 F. Supp. 623 (N.D. Ohio 1998) (temporary back injury was not a disability because "it is well established that the Act was never intended to apply to persons suffering from temporary conditions or injuries."); Presutti v, Felton Brush Inc., 927 F. Supp. 545, 543-550 (D.N.H. 1995) (back injury from a non-worked related car accident resulting in a temporary leave of absence is not a "disability" under the ADA); Richardson v. William Powell Co., 3 AD Cases 1751, 1755-1756 (S.D. Ohio 1994) (degenerative arthritic hip condition is not a disability under the ADA, especially where the employee's physician cleared her to work without restriction); Jones v. Alabama Power Co., 3 AD Cases 1717, 1727-1728 (N.D.Ala. 1995), aff'd, 77 F.3d 498 (11th Cir. 1996) (work-related back injury is not a handicap under the Rehabilitation Act, especially in light of the plaintiffs position that she could return to work full duty).
Here, because Crowe has not filed a response, the record is devoid of any evidence regarding the precise nature of his injuries and the duration of his injuries. Crowe, however, did not allege in his complaint or charge of discrimination that his injuries were permanent or long-term. Crowe merely complains about pain and sleeplessness. He does not state what, if any, major life activities he is substantially limited in because of his injuries, nor has he alleged that Chili's regarded his as disabled. Indeed, Crowe returned to work two days after the accident and worked for three days without incident. From the record before the Court, it does not appear that Crowe's injuries are sufficient to invoke the protection of the ADA. Thus, Chili's motion is granted on this ground.
C. Reasonable Accommodation
Chili's also argues that even assuming Crowe is disabled, he did not request a reasonable accommodation. The ADA's prohibition on discrimination includes an entity's failure to make reasonable accommodations for a qualified individual's disabilities. See 42 U.S.C. § 12112(b)(5)(A); Kiphart v. Saturn Corp., 251 F.3d 573 586 (6th Cir. 2001). Reasonable accommodation includes not only those measures necessary for an employee to perform the essential functions of his position, but also those that enable the employee to enjoy equal privileges and benefits of employment as are enjoyed by other similarly-situated employees without disabilities. See 29 C.F.R. § 1630.2 (o)(1)(iii). Once an employee establishes that a reasonable accommodation is possible, the employer must then prove that such reasonable accommodation would impose an undue burden or hardship on the employer. See Monette, supra at 1186 n. 12 (6th Cir. 1996).
Here, Crowe appears to contend that Chili's should have provided a fourth manager, which could be interpreted as a request for an accommodation. However, as Chili's points out, there is no evidence that Crowe made such a request, or made such a request because of his injuries. In fact, Crowe's complaint states that discussion of adding a fourth manger occurred prior to his accident and was related to the need because of increased sales, not because of any alleged disability. Again, the record before the Court is devoid of any evidence to the contrary. Thus, Chili's motion is also granted on this ground.
SO ORDERED.