Opinion
No. 00-1460-JTM
January 10, 2002
MEMORANDUM ORDER
Plaintiff Beverly Mae Dye has brought the present action alleging wrongful retaliation and violations of the Americans with Disabilities Act (ADA) on the part of her current employer, The Boeing Company. The matter is currently before the court on defendant Boeing's motion for summary judgment. Upon reviewing all of the material before it, the court finds that summary judgment is warranted for the reasons stated herein.
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
The court makes the following findings of fact based upon the uncontroverted evidence before the court. D. Kan. Rule 56.1(b) provides the basis for a party opposing summary judgment to place facts before the court. The rule provides:
(1) A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed.
(2) If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above.
By its explicit terms, the rule prohibits rote references to large blocks of deposition testimony. The rule also prohibits burying additional alleged facts within the text or discussion section of the brief. The court's order hereby denies any suggested findings of fact which ignore these requirements.
Employment Background at Boeing
Dye is a current employee of Boeing. At all relevant times, she was a Materials Processor A. She received regular pay increases during this time. Dye began working for Boeing on July 19, 1985 as a Storekeeper C. When she started this position, she put together parts kits. In other words, she collected the parts that employees on the floor would need and grouped them together. Dye transferred to a "turkey pen" where she handed out parts to the employees who needed them. Dye remained a Storekeeper C and the move was a lateral transfer for her.
In August 1987, Dye was upgraded to a Production Controller C, which reflects a promotion from a grade 2 to a grade 3 job and included a corresponding increase in pay. The Controller C job was an expediting job. Dye worked out of a stock room (also called a parts control area or PCA) and had a report with various part numbers on it. Her job was to go around the Boeing campus and find the parts on her report. As Dye described her job in her deposition, she then attempted to "expedite" the production process and get the parts "pushed back" to her stock room. Because the expediter is essentially badgering the employees to get them to finish the parts, there is an inherent tension between expediters and other employees.
In September 1990, Dye became an Expediter C, and her job duties changed slightly. While she still chased parts around the Boeing campus, she no longer worked out of a PCA. Instead, Boeing took the expediters out of the PCAs and assigned them to their own workgroups. This was a change in philosophy in how the work was assigned. Dye remained a grade 3 employee. In January 1995, Dye became a Storekeeper B. This was still an expediting position. However, she was assigned to a new area, the Composite Manufacturing Facility (CMF). She remained a grade 3 employee. The only change in her job duties was that she was dealing with larger parts and had to go to different areas than she had before, such as x-ray. Her job title changed again during her time in CMF to Materials Processor B. However, Dye was still performing grade 3 expediting duties during that time period.
On October 13, 1997, at the request of manager Mark Epperson, Dye was upgraded to a Materials Processor A. This was a promotion from a grade 3 job to a grade 5 job, and, as with her previous promotions, there was a corresponding increase in pay. While this type of "in-line" promotion is normally determined by seniority, Dye was a designated candidate, which means that she was not the person with the most seniority but was promoted at the request of management because they felt she was a good employee.
As a grade 5 employee, Dye's job duties changed significantly. Dye testified that she was transferred to what she called a "material person." In this position, she no longer "chased" parts around the Boeing company. She was taught instead how to order tools and what tools were needed for particular jobs. It was then her responsibility to get the tools to the employees who ran the machines. The material person position also involved another change in location, to Plant 2. While the new job had different duties, it was still under the Materials Processor description. Dye admits that there are a lot of different job duties under the Materials Processor job title.
Dye was happy with the promotion, but did not feel there was enough for her to do in Plant 2. She went to the personnel representative and asked for a "bust back" to a grade 3 position so she could work in a different area. Dye was not really interested in going back to the grade 3 position, but she wanted to earn her money and make good use of her time, which she did not think was happening in Plant 2. Dye's personnel representative did not allow her to take the bust back. Still, Dye continued to ask for a transfer to another area.
Dye had some difficulty with her co-workers in Plant 2. Two of her co-workers were upset because she was not a member of the union. One of the co-workers explicitly told her that he did not like her because she was not in the union. Dye believes that the other employee tried to scare her by getting very close to her with a scooter when she was riding a bicycle at work. Dye also believes that these employees were attempting to get other employees to dislike her. She stated in her deposition that because of their efforts, some of the machine operators started to show that they did not like her. Although she cannot recall precisely what the machine operators did to show their disdain for her, she believes that they may have frowned at her or something of that nature.
Dye also had problems with her supervisor Bob Vidacs. She thought this was because she was saying there was not enough for her to do in Plant 2 and that she was requesting a transfer. There is no evidence that Dye complained to management about the way her co-workers treated her.
While Dye was working in Plant 2, the Manufacturing Processing Facility (MPF) was behind in its workload, so she requested that she be reassigned from Plant 2 to MPF. Boeing management granted her request and Dye moved into MPF on February 24, 1998, where she went back to expediting parts rather than performing the material person job. In addition, she began "clocking her own orders." This meant that Dye tracked the movement of the parts on a computer. While this is a dispatch function, it is also encompassed under the Materials Processor job description. Dye added this responsibility to her job without being directed to do so by her managers, because she knew how to dispatch and the other dispatchers were pressed for time in MPF.
When she moved into MPF on second shift, they were so far behind that Dye worked her "hot parts" — parts for which there was an immediate need — from a single-spaced list in several rows on a legal-sized sheet of paper. She testified that there may have been several hundred parts on her list. However, she had worked the list down to only 17 parts by the time she moved out of MPF.
As had been the case in Plant 2, Dye had problems with co-workers and managers in MPF. Dye admits she was not embraced by MPF management when she transferred there. In part, this stemmed from the fact that MPF was "owned" by a different "company" within the Boeing organization. Dye worked for the Machine Fabrication Business Unit (also called Company 902), but MPF was "owned" by the Sheet Metal Fabrication Business Unit (also called Company 905). MPF had to finish Company 902's parts, as well as parts for many of the other companies at Boeing. Thus, MPF employees not only have to finish their own parts, they have to finish other workers' parts. Having expediters from other companies in MPF was a new process at the time and the MPF employees were not very receptive to having Dye there trying to push through Company 902's parts. The MPF employees preferred to have this handled by MPF's expediters. Dye was having problems in MPF because of the power struggle between the two companies.
Dye admits that she was having problems with some of her co-workers in MPF. In particular, there were two women in MPF who were being very territorial. Both employees told her that they would not do anything to help Dye move Company 902's parts through MPF. Dye was also having problems getting along with a manager named Terry Breth, so she requested a transfer to first shift. As Company 902 already had an expediter in MPF on that shift, Dye knew that a transfer meant that she would be going to a different location.
On September 4, 1998, Dye was reassigned from MPF to the Nacelles building. While in Nacelles, Dye was working on a hot parts list. She was only in Nacelles for about two weeks before she moved back to Plant 2. After she returned to Plant 2, Dye was doing dispatch work.
Transfer to Warehouse 3
On May 12, 1999, Dye went on leave to have an internal hemorhroidectomy. When she returned to work, she was assigned as a material person in Warehouse 3. Dye alleges she was not given any explanation for her transfer to Warehouse 3. However, she admits that there was a reduction in force going on at that time. At the time of her transfer, Dye did not have any medical restrictions. Because she was worried about the lifting required in Warehouse 3, however, Dye returned to her doctor who gave her a 75-pound lifting restriction. This was her only restriction at that time.
Dye was transferred to Warehouse 3 because her group was in the process of downsizing. In fact, her group downsized four employees in the Materials Processor A job title, including Dye. As Dye admits, when Boeing does this type of downsizing, employees with the least seniority under that Director (a high level manager over the entire group) are chosen. If the employee's seniority is high enough, that employee will "bump" an employee with lower seniority under a different director. In other words, while downsized employees have to move out of their group, they get to maintain their grade 5 jobs in another group and the employees with lower seniority are either laid off or "bumped back" to a grade 3 position. As a result of the downsizing in Dye's group, the four employees with the least seniority (which included Dye) within that group were transferred to Warehouse 3. As Dye admits, Warehouse 3 has a lot of employees with low seniority.
The decision to reduce the number of employees in Dye's job code within her group was made by upper management. After the number of employees to be reduced within a particular job code was set, Sheryl Bishop, a Human Resource Specialist, identified the employees to be transferred. This decision was based entirely on seniority. After Bishop identified the employees, she sent out the names to the personnel representatives and the management teams.
Plaintiff's response brief suggests that Dye was in fact transferred as retaliation for her daughter Patricia Ericson's work history in Warehouse 3. Ericson quit (or, in the words of the response, "voluntarily disaffiliated" herself) from Boeing a week before Dye's transfer. The response states that Dye was not the person with the lowest seniority. However, the response provides no evidence to support this assertion. The evidence before the court establishes that Dye was the worker with the least seniority within her Director group.
Dye believes that she replaced Jim Hutchinson. She does not know the exact reason why Hutchinson left the position. However, she admits that he was "busted back" to a grade 3 position and placed somewhere else in the plant.
As with her earlier material person job, Dye's job in Warehouse 3 involved loading tools for the shop and doing dispatch work. Her job loading the tools involved taking blanking templates (BTs) and matching them with the appropriate material for use by the machine operators.
According to Dye, the BTs weigh anywhere from 28 to 200 pounds. The BTs are stored in two areas in Warehouse 3. The smaller BTs, weighing less than 50 pounds, are stored in hanals. A hanal is an electronic storage device. By inputting the number of the desired BT into a computer, the hanal automatically retrieves the BT for the employee. The heavier BTs are stored in "sturdy builds." Sturdy builds are shelving units that house the heavier BTs on pallets. The employee uses a forklift to get the pallets from the sturdy builds. The employee then transfers the BT to another pallet that has the material on it to be paired with the BT. There are cranes near the sturdy builds and the hanals to assist the employees in moving the BTs.
Plaintiff's response brief asserts that the mechanical lifting devices were not operational, citing Dye's affidavit. This assertion, however, is directly contrary to Dye's deposition testimony in which she testified that the Warehouse 3 crane was functional. (Dye Dep. at 442-43). The discrepancy is clear, and plaintiff makes no attempt to explain it. There is no suggestion that the earlier testimony was the subject of confusion, which the affidavit merely seeks to explain, or that the new testimony is based on some additional, newly acquired evidence. Accordingly, the court will not permit plaintiff to evade the testimony in her deposition. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).
At her request, Dye was transferred from Warehouse 3 back to MPF in November 2000. Her managers remained the same. In December 2000, Dye moved to PCA 801 where she continues to work as a Materials Processor A doing expediting work.
Dye's Medical Restrictions
Dye received her first permanent medical restriction on June 2, 1999. After she returned from her internal hemorhroidectomy, her doctor gave her a 75-pound lifting restriction. Dye admits that Boeing's general lifting restriction for all employees is less than this: Boeing prohibits any employee from attempting to lift more than 50 pounds.
Currently Dye has three permanent medical restrictions. Dye has a 15-pound lifting restriction that went into place on June 2, 2000, replacing the 75-pound restriction. On November 1, 2000, Dye's doctor gave her a restriction of no right hand work over her shoulder for more than three hours out of an eight-hour shift. Finally, as a result of the knee surgery that she had on December 22, 2000, Dye may ride a scooter at work.
Accommodation
Dye claims that Boeing failed to accommodate her while she was employed in Warehouse 3. While she does not identify the specific accommodation she sought, the basis of her EEOC complaint was Boeing's failure to transfer her from Warehouse 3 in March 2000. At that time, as noted above, Dye's only medical restriction was the 75-pound lifting prohibition.
In 1999, while in Warehouse 3, Dye suffered two injuries that did not result in any permanent medical restrictions. As a result of her first injury, Dye could not perform her lifting duties for a few days. Therefore, her supervisor had her do some clean-up duties for a short period of time. Dye took it upon herself to continue doing this clean-up work.
On March 20, 2000, Dye met with her managers, Tony Cline and Scotty Little, and asked for a transfer out of Warehouse 3. Dye told Cline and Little that mentally she enjoyed the challenge of the job, but that she did not feel she was physically capable of performing it. Dye told them that she cared what they thought and also cared about layoffs, but she still wished to transfer out of the position. Her managers could not transfer her because she had only a 75-pound lifting restriction, which did not warrant a transfer, and Boeing was laying off employees at that time.
The March 20, 2000, meeting was the first time that Dye requested a transfer. It was also the first time that she requested help with her lifting duties. The solution reached in this meeting was for Dye to ask for help from her co-workers with her lifting duties. Cline told Dye to get help from co-worker Melvin Davis or her lead, Mark Wittsell. Dye recalls Cline telling her to get help from Dan Frazier or Melvin Davis. Dye testified that when she would ask for help from Frazier or Davis, they would help her when they were not busy. It is uncontroverted that, before the March 20 meeting, Dye had not asked management for other employees to help her with her lifting responsibilities.
On May 4, 2000, Dye reported a number of injuries to Central Medical. She reported injuries to her shoulder, left knee, and right index finger.
Following her report to Central Medical, Dye's managers held a meeting with her on May 6, 2000. Dye admits in her deposition that she had not previously reported any difficulty in getting help with lifting since the original meeting on March 20. Her managers did not realize that she was not getting help until she brought it up again on May 6. At the meeting, Dye's managers again told her to get help with her lifting duties from co-workers, including Mark Wittsell. Following the May 6 meeting, Cline met with Wittsell and told him to help Dye with lifting.
Dye injured her back on May 16, 2000, within ten days of her second meeting with management. As a result of this injury, Dye's doctor assigned her a 15-pound lifting limitation. After her injury, but even before the doctor imposed the new lifting restriction, Dye's supervisor removed Dye's lifting duties. Dye admits that she was not required to lift after her doctor assigned her the 15-pound lifting restriction. Instead, Dye was assigned dispatch duties and, when she had time, performed light work marking parts.
Dye had surgery on her knee in August 2000. When she returned, she had many temporary restrictions. Ron Trowbridge, who was filling in for Tony Cline as manager, asked Dye what work she could do within those restrictions. She told him that, among other things, she could part mark, so Trowbridge had her work in part mark. While Dye claims that this was more difficult for her than other things she could have done, she admits she did not tell Trowbridge this. As of August 2000, Dye was permanently assigned to work part mark in the Nut Plate shop. Dye remained in Nut Plate until she was transferred out of Warehouse 3 in November 2000.
Dye alleges that she is limited in the major life activities of walking, sitting, bending, eating, standing, sleeping, and lifting.
Dye alleges that she has a cyst behind her left knee that limits her ability to walk long distances. She also claims that her back hurts after she walks for a while. Dye has had two surgeries on her left knee and one surgery on her right knee. She first had problems with her knees in February 1999. She had surgeries on her knees in November 1999, August 2000, and December 2000. While she had some temporary restrictions following these surgeries, Dye admits she has no permanent medical restrictions on her ability to walk.
Dye states that after she sits for 10 to 15 minutes, her knees give out or hurt when she stands up. In addition, she states it is difficult for her to look down while she is sitting. She states that her problems in this regard began on May 16, 2000. She admits she has no permanent medical restrictions on her ability to sit.
Dye states that she has trouble bending. For instance, she stated that she has problems bending over to help her grandchildren take baths. She states that this is related to her back injury, which occurred on May 16, 2000. However, Dye admits that she has no permanent medical restrictions on her ability to bend.
Dye states that she is not able to stand for long periods of time. She admits that she has no permanent medical restrictions on her ability to stand.
Dye states that she has had trouble in the mornings when she gets up since her back injury on May 16, 2000. She admits she has no permanent restrictions with regard to sleeping.
Dye states that she feels nauseated sometimes. At other times, she feels like she needs to eat. She admits that she has no special diet or other permanent medical restrictions regarding eating.
Dye's doctor gave her a 75-pound lifting restriction in June 1999. This was her only permanent lifting restriction until June 2, 2000, when her doctor gave her a 15-pound lifting restriction resulting from the injury of May 16, 2000. She admits that even before she got the 15-pound lifting restriction, Boeing took her off all lifting. Instead she was dispatching and working in part mark, which did not require heavy lifting.
Alleged Retaliation
Dye alleges in the Pretrial Order that, because of complaints made by her daughter and because Dye filed a workers compensation claim, Boeing retaliated against Dye by placing her into the job in Warehouse 3 and requiring her to continue in that position doing heavy lifting even after she sustained injuries. Dye's testimony, however, is that Scotty Little, Tony Cline, Cynda (McFarthing) Copridge, and John Storm were the individuals who retaliated against her, and that each of these individuals retaliated against her solely because her daughter contacted OSHA.
Dye's evidence that moving into Warehouse 3 was retaliation for her daughter Patricia Ericson contacting OSHA is that she feels "it is more than a coincidence" that her daughter would quit work at Boeing and then Dye would be moved into an area where her daughter previously worked. Dye also alleges that she could feel that something was wrong when she transferred to Warehouse 3.
Dye alleges that Tony Cline knew her daughter contacted OSHA because she believed that her daughter told him so. However, her daughter testified that she did not tell Tony Cline that she contacted OSHA. In fact, the only members of management that Dye's daughter allegedly told that she contacted OSHA were her manager, Cynda (McFarthing) Copridge, and her personnel representative, Cassie Caster.
Dye's only evidence that Scotty Little and John Storm knew her daughter contacted OSHA is because of the treatment she received in Warehouse 3 and the way they acted when she was transferred there.
Dye has no first-hand knowledge of how Boeing reacts when employees contact OSHA. She admits that other employees also had performed the lifting duties in Warehouse 3. She knows that her daughter, two other women, and male employees previously performed the job. She did not know any reason why Boeing would wish to retaliate against these other employees. Dye's daughter testified that the job is necessary and that someone at Boeing has to do it.
Dye admits that Boeing has made a concerted effort to train employees regarding what to do in case they feel they are being retaliated against. However, Dye admits she never told anyone at Boeing that she thought she was being punished or retaliated against by being put in Warehouse 3.
Patricia Ericson's Work History
Patricia Ericson, Dye's daughter, was a grade 3 Materials Processor B at Boeing, until she quit on May 20, 1999. At that time, Ericson informed Boeing that she had no sick time, no vacation time, and no FMLA time remaining. Nevertheless, she needed additional time off. As a result, she preferred to quit rather than be discharged.
In September 1996, Ericson was having problems with her eyes while she was working in MPF. Ericson believes that she was exposed to a chemical that irritated her eyes. She alleges that she contacted OSHA about this in November 1996 and they told her to report it internally at Boeing. Ericson reported it internally and David Denny came out and investigated the matter. Because her managers wished to keep her, Denny tried to find a spot for her in MPF. He could not find a place in MPF where Ericson's eyes did not bother her, so Ericson moved to Warehouse 3, where her eyes improved.
Ericson alleges she again contacted OSHA in August, 1997, this time about the lifting requirements in Warehouse 3. Ericson believes that the lifting requirements violated an OSHA regulation, although she has never seen any such regulation. Ericson was again told to make a report to Boeing. Ericson reported her problems with the lifting duties to Boeing and a man from Boeing Health and Safety responded. Ericson testified that he was trying very hard to come up with a magnetic clamp that would assist her with her lifting duties.
On September 19, 1997, Ericson broke her finger lifting a BT. As a result, she again contacted OSHA. She also made an internal report to Health and Safety, who again came out. Around this time, Ericson says she told her supervisor Cynda (McFarthing) Copridge, that she had contacted OSHA. Ericson testified that "it was no big deal" to Copridge. In fact, she testified that Copridge worked very hard with Health and Safety to solve the problem, and even got the hanals installed after that.
Somewhere between April 1998 and August 1998, Ericson states that she made a fourth contact with OSHA. The purpose of this call was simply to update them on her situation. She says that OSHA took a report over the phone, and she thought they would follow up on her complaint, but admits that she does not know if they did anything with it, including whether or not OSHA contacted Boeing.
Ericson alleges she contacted OSHA in October 1998 regarding parts that were not being inspected, and OSHA referred her to the FAA.
Around February 1999, Ericson made another contact with OSHA. She informed OSHA that she had a hysterectomy and did not want to go back to lifting in Warehouse 3. She does not know whether OSHA contacted Boeing regarding this call. At the time, she was on leave because of her surgery. When she returned to work, she was moved to Plant 2 as an expediter. Ericson admits that this complied with her restrictions, but she did not want to be moved. Instead, she had hoped to remain in Warehouse 3 without the lifting requirements.
Ericson does not know if OSHA ever contacted Boeing regarding her complaints. Boeing has no record of OSHA complaints regarding the issues raised by Patricia Ericson in the Manufacturing Processing Facility or Warehouse 3. Nor does OSHA have any record of any contacts from Ericson. Ericson admits that someone has to pull the BTs in Warehouse 3 and that someone is still doing that job.
Administrative Proceedings
After submitting information to the EEOC on or around June 16, 2000, Dye received a letter from the EEOC investigator, informing her he needed further information to process the charge. The letter states that the investigator did not see any basis for her claim and, if she chose to proceed, he would simply issue a right-to-sue letter without investigating the matter, unless she provided further information that showed that adverse action was taken against her because of a protected characteristic. Dye contacted the investigator and told him to issue the right-to-sue letter.
The factual basis for Dye's EEOC charge under the ADA was that Dye was not reassigned in March 2000, as she requested. Dye testified that the charge fully and accurately reflected her claim against Boeing.
Dye filed her charge with the EEOC on July 27, 2000. The EEOC found no probable cause and issued a right-to-sue letter on August 15, 2000, within three weeks of the date Dye filed her charge with them.
Dye filed suit in the United States District Court for the District of Kansas on November 7, 2000.
Conclusions of Law
Plaintiff filed her complaint with the EEOC on July 27, 2000. The court finds that plaintiff's claims are and must be limited to events occurring within the 300 days prior to this filing. Thus events occurring prior to October 1, 1999 are not properly before the court, since plaintiff failed to exhaust her administrative remedies as to these claims. 42 U.S.C. § 12117(a). Further, since the only charge advanced in the EEOC complaint is the failure of Boeing to accommodate the plaintiff by agreeing to her March 20, 2000 request to transfer her out of Warehouse 3, the court finds that plaintiff's allegations which go beyond the failure to so accommodate are also not before the court.
Plaintiff's additional claims are not preserved by the continuing violations doctrine. See Frazier v. Simmons, 254 F.3d 1247 (10th Cir. 2001). Plaintiff made no requested accommodation prior to March 20, 2000. Allegations relating to events prior to the statutory period are not properly before the court.
The court further finds that summary judgment is proper as to plaintiff's claim that the refusal to transfer her was a violation of the ADA. First, plaintiff has failed to provide evidence that, at the time of the requested transfer, she was disabled within the meaning of the ADA.
An impairment "substantially limits" a major life activity if the individual is unable to perform the activity or is significantly restricted in the ability to perform the major life activity compared to the general population. A court must consider three factors in determining whether an impairment substantially limits a major life activity: (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 resulting from the impairment.
Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240 (10th Cir. 2001) (citing 29 C.F.R. § 1630.2(j)(1)). Here, plaintiff has failed to provide evidence of an existing impairment which substantially and adversely affects her ability to engage in a major life activity. At the time of the requested transfer, the only medical restriction on Dye was a 75-pound lifting restriction. This is far in excess of the 40-pound lifting restriction which the court in Lusk held was insufficient by itself to establish an impairment. There is no evidence of the severity of Dye's alleged impairments directly and in comparison to the general population, or of the duration of the alleged impairments.
In her response, plaintiff argues that she falls within the ADA because she was either regarded as disabled, or because she has a history of disability. However, these arguments are apparently advanced now for the first time; they were not included in the Pretrial Order. Accordingly, they are not appropriately before the court now. Moreover, as with her claim of substantial impairment, plaintiff's arguments would in any event fail for a lack of evidence that the alleged history reflects a substantial impairment as to severity and duration, or that individually or collectively the managers of Boeing refused to offer the accommodation out of the mistaken belief Dye was substantially impaired as to a major life activity.
Independently, summary judgment is appropriate since the evidence fails to establish that Boeing refused to reasonably accommodate the plaintiff. As noted earlier, the only accommodation specified in Dye's EEOC charge is the failure to agree to her request to transfer her out of Warehouse 3. At the time, Boeing was laying off workers. Dye never identifies any position to which she could have been transferred. Moreover, such a transfer was not justified, where Dye's existing medical restriction simply prohibited her from lifting in excess of 75 pounds. Boeing's internal rules prohibit any employee from attempting to lift in excess of 50 pounds.
Further, even though the plaintiff's EEOC charge does not mention any other refused accommodation, the evidence herein nonetheless establishes that Boeing did reasonably accommodate Dye. She was instructed to use mechanical lifting devices or to get help from her co-workers when lifting heavy items. Dye did not report to managers that she had difficulty in getting her co-workers to help with lifting, and suffered an additional injury. Shortly thereafter, Boeing managers again held a meeting with Dye and instructed her to obtain co-worker help when lifting heavy objects. They also specifically instructed certain Boeing employees to assist Dye. When Dye was subsequently injured and subjected to a 15-pound lifting restriction, Boeing accommodated her by removing her lifting duties.
Finally, summary judgment is appropriate as to Dye's claims of retaliation. First, the uncontroverted evidence establishes that Dye was not subject to adverse employment action. Instead, the evidence shows simply that at this general time Dye and three other co-workers were transferred into this part of the Boeing plant. Following her transfer to Warehouse 3, Dye continued to perform tasks in her job description. She was not discharged or demoted, and instead retained her job classification (Materials Processor A) and continued to receive regular pay increases.
With respect to the suggestion that Dye and the three other workers were transferred to Warehouse 3 as some form of retaliation for her daughter's complaints about lifting, summary judgment again is appropriate. There is no evidence that any Boeing managers responsible for Dye's transfer knew of Ericson's complaints to OSHA. To the contrary, the evidence establishes that the transfer was the result of company downsizing and seniority considerations. Accordingly, even aside from the failure to show an adverse employment action, Dye's retaliation claim must be dismissed as failing to establish that the transfer was a pretext for retaliation.
As noted earlier, it is uncontroverted that neither Boeing nor OSHA have any record of the alleged calls from Ericson. However, pursuant to the rules relating to summary judgment, the court assumes for present purposes that Ericson did in fact telephone OSHA.
IT IS ACCORDINGLY ORDERED this ___ day of January, 2002, that the defendant's Motion for Summary Judgment (Dkt. No. 39) is hereby granted.