Opinion
Civil Action No. 03-2624-CM.
April 5, 2005
MEMORANDUM AND ORDER
Plaintiff Kenneth Jones brought this cause of action against defendant Smith Loveless, Inc. on December 9, 2003, alleging that, in May 2003, defendant terminated his employment in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Plaintiff specifically alleges discrimination and retaliation claims pursuant to § 12112 of the ADA. This matter comes before the court on defendant's Motion for Summary Judgment (Doc. 22).
The court construes the facts in the light most favorable to plaintiff as the nonmoving party pursuant to Fed.R.Civ.P. 56.
A. Plaintiff's Employment with Defendant
Defendant makes equipment for sewage treatment plants and pump lift stations. Plaintiff began his employment with defendant in 1967. Plaintiff quit his employment in 1969, but returned to work for defendant in 1971. Plaintiff worked for about one month in a production position in 1971, but otherwise was employed as an inspector. Production work at defendant includes things such as welding, fabrication, assembly and painting.
An inspector performs functions such as inspection of welds, inspection of electrical panels, final inspection of products, and shipping products. The products that are inspected are very large parts that one walks around and climbs in. Sometimes inspection work involves climbing a ladder. Occasionally, inspectors are required to lift heavy parts. Inspectors prepare paperwork as part of their duties. Most of the paperwork is done while inspecting the product, rather than in an office.
In June 1996, plaintiff underwent surgery on his left hip. After a leave of absence for the surgery, he returned to full duty work for about one month. He retired from defendant effective October 1, 1996 at the age of 62. Plaintiff had previously planned to retire at the age of 62, and the hip surgery had nothing to do with the timing of his retirement. During plaintiff's retirement from defendant, he worked briefly driving a school bus and driving a cement mixer.
In July 2000, plaintiff returned to work at defendant. Plaintiff decided to return to work because he and his wife could use more money, and because he was bored around the house.
B. Plaintiff's Leaves of Absence and Termination of Employment
On December 2, 2001, plaintiff had a heart attack. Plaintiff returned to work a few days after his heart attack. He performed the full duties of his job, without restriction, until July 2002. On July 8, 2002, plaintiff underwent heart bypass surgery. Defendant granted plaintiff a leave of absence related to the heart bypass surgery pursuant to the Family and Medical Leave Act (FMLA), and defendant's Family and Medical Leave Policy (FMLP). Plaintiff was aware of, and had a copy of, defendant's FMLP. Plaintiff returned to full-duty work, with no restrictions, on October 1, 2002.
In January 2003, plaintiff began to experience pain in his left hip. Plaintiff sought medical treatment for his left hip, but he continued to perform all of the duties of his job, and did not request any changes to his work duties. In March 2003, plaintiff decided to undergo a second surgery on his left hip. Plaintiff claims that surgery was the only realistic option he had for his hip condition in 2003. He understood at the time that his problem was arthritic in nature, and chronic. He thus felt that no other option existed to deal with the pain and discomfort he was experiencing. Plaintiff claims that at the time he decided to have surgery he was unable to walk any significant distances due to the pain and weakness in his left hip. Plaintiff claims that by that time the problem had reached a point that he did not believe he could do his job adequately, since walking throughout his shift was a requirement. Plaintiff also claims that he was unable to perform the chores and other tasks around his home that he was accustomed to, including yard work with and without a tractor to mow grass, weed-eating, trimming, and snow removal. Plaintiff also claims that he was unable to play with his grandchildren or dance with his wife.
On March 4, 2003, plaintiff submitted an application for leave of absence under defendant's FMLP. Plaintiff discussed the leave of absence with Larry Watson, defendant's Human Resources Director. Mr. Watson is the person primarily responsible for application of the FMLP. Plaintiff does not recall anything that Mr. Watson said about the request for leave, other than that it was "awful soon after the last one."
Mr. Watson recalls that plaintiff expressed concern that his leave of absence would cause him to exceed his FMLA entitlement. Mr. Watson checked plaintiff's FMLA records and confirmed that the current leave request would cause him to exceed his allowable FMLA leave. Plaintiff also was concerned about his employment status at the conclusion of the leave. Mr. Watson told plaintiff that Mr. Watson could not say at the time what plaintiff's employment status would be at the conclusion of the leave of absence. Plaintiff contends that Mr. Watson did not tell him when he took the leave of absence that his job was in jeopardy and that, at the time plaintiff took leave for his hip surgery, plaintiff was under the impression that his position would be available to him at the time he returned. Plaintiff contends that his request for a leave of absence to undergo hip surgery was a request for reasonable accommodation.
Plaintiff also had a conversation with Plant Superintendent Mike Metsinger. Plaintiff apologized for having to leave so soon after recuperating from heart bypass surgery. Mr. Metsinger responded, "Well, you've got to do what you've got to do." On March 18, 2003, plaintiff underwent hip surgery, and began a leave of absence.
On April 28, 2003, plaintiff's physician, Dr. Huo, released plaintiff to return to work on May 19, 2003 with no restrictions. On April 29, 2003, plaintiff left a telephone voice-mail message for Mr. Watson, advising him that plaintiff had been released to return to work on May 19, 2003. Plaintiff did not state in the message that he would be returning to anything other than full-duty work. Plaintiff had no communication with anyone at defendant between his surgery on March 18, 2003 and the April 29, 2003 telephone message. After the April 29 message, plaintiff had no further communication with anyone at defendant until May 14, 2003.
On May 14, 2003, Mr. Watson telephoned plaintiff and left a message for plaintiff to return the call. When plaintiff returned the call, Mr. Watson informed plaintiff that plaintiff's position had been filled by an engineer-in-training.
On two previous occasions, defendant had made use of an engineer-in-training program, through which an engineer was hired and assigned to perform inspection duties (among other responsibilities) as part of the training process. The decision to reinstate the engineer-in-training program was made by defendant's President, Bob Rebori, its Vice President of Manufacturing and Engineering, Jim Bell, and Mr. Metsinger. Mr. Watson was involved in the process of selecting the engineer for the position. Mr. Watson initiated the process by placing advertisements at two universities on March 11 and 12, 2003. On April 23, 2003, defendant hired engineer Shawn Harvill. Mr. Harvill was assigned to the inspector role previously held by plaintiff, which was vacant due to plaintiff's leave of absence. As a result, when plaintiff notified defendant on April 29, 2003, of his intent to return to work effective May 19, 2003, there was no inspector position open and no increased staffing needs that would warrant the creation of an additional inspector position.
Plaintiff had exhausted his twelve-week FMLA entitlement during his 2002 leave of absence following heart surgery. Mr. Watson is involved in defendant's decision-making regarding whether an employee has a disability and whether the ADA applies to the employee. Mr. Watson determined that plaintiff did not have a disability within the meaning of the ADA and thus concluded that plaintiff had no legal right to reinstatement to his previous position. Accordingly, plaintiff's job was not held open for him during his leave of absence in 2003.
After Mr. Watson notified plaintiff that his inspector position had been filled, Mr. Watson raised the possibility of two other positions for plaintiff to consider: a part-time parts clerk position, and a field service technician position requiring up to 80% long distance travel. Plaintiff told Mr. Watson that he was not interested in the part-time job. Plaintiff claims that the part-time position was not viable because it had a low salary and increased travel distance to the workplace. Plaintiff claims that he told Mr. Watson that he would be interested in the field service technician job. Plaintiff claims that Mr. Watson told him that there were more qualified candidates for the field service technician job, and that plaintiff would not be given that opportunity. However, Mr. Watson testified that plaintiff declined both job opportunities.
On or about May 15, 2003, Mr. Watson sent plaintiff a letter, which stated, in part:
The purpose of this letter is to inform you that your position at Smith Loveless has been filled, and it appears that no other positions currently exist. . . . Because you have exceeded your 12 weeks of allowable FMLA time in the last 12 months, and with no apparent suitable position open, we must regrettably terminate your employment.
Defendant's internal documentation identified the reason for plaintiff's termination as "No work available after exceeding FMLA."
There was never a time when plaintiff worked a light-duty job while he was employed by defendant. Defendant never denied any leave of absence requested by plaintiff. Defendant claims that it never regarded plaintiff as disabled. Plaintiff claims that defendant regarded him as disabled when it granted him a leave of absence for his hip surgery in March 2003 when he no longer had available FMLA time to use.
Other than leaves of absence, plaintiff never asked defendant to make any changes to his job duties because of any physical limitations. No one in management at defendant ever said anything to plaintiff that suggested any bias against individuals with disabilities.
C. Plaintiff's Employment After Defendant
After the termination of his employment at defendant, plaintiff sought work at a manufacturing facility, as a counter worker at a retail store, as an auto sales representative, as a member of a cleaning crew, as a sales clerk at Sears, as a clerk at a gas station, and in any available position at a grocery store and a Wal-Mart.
On June 22, 2003, plaintiff began work at Ottawa University as a security guard. At Ottawa University, plaintiff was responsible for patrolling the campus and eight or nine buildings on campus. He travelled through campus on a motorized vehicle. At each building, plaintiff would walk around the interior and exterior of the building, check the mechanical equipment in the basement, and then check the remaining floors of the building. Plaintiff also was required to confirm that all of the exterior doors were locked, which he did from the inside the building. Three of the buildings had two stories, and the rest were three story buildings. One of the three story buildings did not have an elevator. Plaintiff used the elevator in the three story buildings that had elevators, but did not use an elevator in any of the two story buildings. When plaintiff climbed stairs to the third floor, he would typically have to stop for a minute and rest at the top of the stairs. After completing the circuit of buildings, plaintiff returned briefly to a central office. He then started the circuit over again and repeated that pattern throughout his shift.
Plaintiff left his job at Ottawa University because it was rotating shift work. After leaving Ottawa University, plaintiff began work at Pearson NCS in a customer service position, where he is currently employed. In that position, plaintiff uses a computer to answer questions from people on the telephone. At Pearson NCS, plaintiff works at a desk in a cubicle. His typical working hours are 3:30 p.m. to 12:00 a.m., five days a week. Plaintiff stands occasionally during his shift because sitting for too long becomes uncomfortable. Plaintiff has noticed that his co-workers at Pearson NCS get up and stretch "all the time."
D. Plaintiff's Physical Condition
Plaintiff and his wife have a home on 2.3 acres in Ottawa, Kansas. Before plaintiff's first hip surgery in June 1996, plaintiff vacuumed, did laundry, and watched his grandkids. He accompanied his wife grocery shopping. Plaintiff mowed the lawn with a riding lawn mower. Plaintiff also engaged in square dancing and bowling.
After his June 1996 hip surgery, plaintiff was able to resume square dancing and bowling, and was essentially back to the same condition as before he experienced any hip problems. His physical condition remained unchanged and unimpaired until his heart bypass surgery in July 2002. In the few weeks following his July 2002 heart bypass surgery, plaintiff was unable to mow or vacuum because twisting bothered his heart muscles. After he recuperated and returned to work at defendant in October or November 2002, plaintiff was able to resume square dancing and household chores, and was essentially back to the same condition as before he experienced any hip or heart problems.
After plaintiff's second hip surgery in March 2003, plaintiff told his wife that he thought he could go back and perform his position with defendant. In his wife's perception, plaintiff was ready and physically able to go back to work in May 2003.
Plaintiff has attempted square dancing a couple of times since the March 2003 hip surgery. Plaintiff quit bowling after the March 2003 hip surgery. Since plaintiff's March 2003 hip surgery, plaintiff continues to vacuum, grocery shop, watch his grandkids, sing in the church choir, perform yard work, including weedeating, but his wife now does most of the riding lawn mower duties. Plaintiff is able to dress himself and bathe without assistance. Plaintiff is not able to lift as much weight as before his heart surgery, but can still lift a bag of groceries and his smaller grandchildren.
Plaintiff's home has a crawl space that plaintiff enters to work on pipes or electrical wiring. Plaintiff helps his wife place items for storage in the rafters of the garage, which are accessed by ladder. Plaintiff and his wife share snow shoveling duties, although plaintiff does less of that since the March 2003 hip surgery.
Plaintiff's physician suggested walking as a means to help plaintiff strengthen his hip. Plaintiff walks on a track in Ottawa for exercise and can walk for ten to fifteen minutes before his legs begin to tire. After about ten to fifteen minutes of rest, plaintiff can resume walking. Plaintiff occasionally experiences pain in his hip after walking, but the amount of time that he can walk without pain varies. There are times that plaintiff can walk ten to fifteen minutes without having any pain at all. Plaintiff is not able to walk for great distances. Plaintiff does not have or use a "disabled" parking sticker. Plaintiff claims that his walking problems are, in his estimation, long-term, chronic and unchanging.
Since his March 2003 surgery, plaintiff has not engaged in any physical therapy. Plaintiff does not use any prescription or over-the-counter pain medications for hip pain. Because of his hip condition, plaintiff cannot sleep on his stomach, but otherwise his sleep is not impacted.
Since his March 2003 surgery, plaintiff's hip has popped out of position twice. Plaintiff claims that, on both occasions, he experienced extreme pain and was rendered immobile. Both times he was treated in an emergency room. Plaintiff does not squat because he is afraid he will pop his hip out if he puts too much leverage on it. Plaintiff must get down on his knees instead. Plaintiff is not able to cross his legs when he sits. Plaintiff claims that sitting has been difficult and uncomfortable since his March 2003 surgery and that he cannot sit for any significant or extended periods of time. Plaintiff contends that this creates a problem in his current job, which involves telephone work, because he must frequently interrupt his work to get up and move about. Plaintiff believes that his sitting problems are chronic and will not improve in the future.
Plaintiff has identified Dr. Kevin Stuever, his treating physician, to testify regarding his physical condition. In his deposition, Dr. Stuever testified that, from his notes in his file, he cannot find any evidence that plaintiff has had, at any time, limitations from his hip condition.
It is undisputed that defendant made no independent inquiry regarding the severity of plaintiff's hip condition in March 2003, aside from receiving information from plaintiff. During his deposition, Mr. Watson testified that, when plaintiff notified defendant that he was released to return to work with no restrictions, defendant's position was that he was not disabled. It also is undisputed that defendant's determination that plaintiff was not a disabled person was based on plaintiff's release to return to work with no restrictions, and defendant did not ask plaintiff for any other information about his condition.
E. Plaintiff's Additional Facts
Plaintiff contends that defendant employed two other inspectors when plaintiff took his leave of absence in March 2003, and that neither of the other inspectors had a disabling condition.
Defendant does not allege that the other two inspectors were better qualified than plaintiff to hold the inspector position during March through May 2003. In fact, defendant acknowledges that it did not make any comparison of plaintiff's and the other two inspectors' qualifications. Rather, defendant contends that plaintiff's inspector position was filled by Mr. Harvill, the engineer-in-training, because his position was open when Mr. Harvill was hired.
II. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
Plaintiff claims that he was subjected to unlawful discrimination and harassment based on his alleged disability, a "crippling arthritic condition" in his hip, and that defendant failed to reasonably accommodate his disability. Defendant claims that plaintiff has not met his prima facie case under the ADA and that his claims should be dismissed.
The ADA prohibits discrimination "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." 42 U.S.C. § 12112(a). Discrimination under the ADA includes "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 . . . the accommodation would impose an undue hardship. . . ." Id. § 12112(b)(5)(A). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8). Thus, to establish a prima facie case under the ADA, plaintiff must demonstrate (1) that he is "disabled" within the meaning of the ADA; (2) that he is qualified — with or without reasonable accommodation; and (3) that he was discriminated against because of his disability. Siemon v. ATT Corp., 117 F.3d 1173, 1175 (10th Cir. 1997).
Because plaintiff brings both of his ADA claims under 42 U.S.C. § 12112, he must establish the same prima facie case for both claims. See Riggs v. Boeing Co., 98 F. Supp.2d 1252, 1257 (D. Kan. 2000).
Defendant contends that plaintiff cannot establish the first and third elements of his prima facie case. Defendant does not dispute that plaintiff was qualified to perform the essential functions of his inspector position.
A. Whether Plaintiff is Disabled Under the ADA
Defendant argues that plaintiff is not disabled within the meaning of the ADA. The ADA defines the term "disability" as "(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); Tate v. Farmland Indus., Inc., 268 F.3d 989, 992 (10th Cir. 2001). Plaintiff contends that he suffers from a hip condition, that the hip condition substantially limits his major life activities of sitting and walking, and that he is disabled within the meaning of the ADA. Plaintiff does not argue that he has a record of such an impairment or that defendant regarded him as having such an impairment. Accordingly, the court focuses on the first prong of the analysis to determine whether plaintiff is disabled under the ADA.
First, the court must determine whether plaintiff suffers from a physical or mental impairment. Bragdon v. Abbott, 524 U.S. 624, 631 (1998). Next, the court must identify the life activities affected by the impairment and whether those activities qualify as major life activities under the ADA. Id. Finally, the court must determine whether the impairment substantially limits the identified major life activities. Id. Whether the plaintiff has an impairment under the ADA and whether the identified activity is a major life activity are questions of law for the court. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003). Whether the impairment substantially limits the major life activity is normally a question of fact for a jury. Id. However, "in proper circumstances a court may decide this step on a motion for summary judgment." Id. at 1130 n. 5 (citing Bristol v. Bd. of County Comm'rs of County of Clear Creek, 281 F.3d 1148, 1161 n. 5 (10th Cir. 2002).
Here, the parties agree that plaintiff suffers from a hip condition. Plaintiff contends that his major life activities of sitting and walking have been substantially limited due to his hip condition. The parties agree that both sitting and walking qualify as major life activities under the ADA. See 29 C.F.R. § 1630.2(i) (defining "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working"); Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495-96 (10th Cir. 2000) (major life activities include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sleeping, sitting, standing, lifting, reaching, and working").
In his opposition to summary judgment, plaintiff focuses only on the major life activities of sitting and walking as the basis of his ADA claims. Accordingly, the court addresses only those major life activities in analyzing defendant's motion.
Accordingly, the issue for this court is whether plaintiff's sitting and walking are substantially limited by his hip condition. A person is substantially limited in a major life activity if he is: (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) 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); Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240 (10th Cir. 2001). Impairments that interfere in only a minor way with a major life activity do not qualify as disabilities. Toyota Motor Mfg., Ky., Inc., v. Williams, 534 U.S. 184, 198 (2002).
In determining whether an impairment substantially limits a major life activity, the court should consider: (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) 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); Steele v. Thiokol Corp., 241 F.3d 1248, 1254 (10th Cir. 2001). Whether an impairment substantially limits a major life activity is determined on an individual, case-by-case basis. Rakity v. Dillons Cos., Inc., 302 F.3d 1152 (10th Cir. 2002).
Where an impairment is not so severe that it is substantially limiting on its face, an ADA plaintiff must present "evidence comparing [his] . . . restrictions to that of an average person." Velarde v. Associated Reg'l Univ. Pathologists, 2003 WL 1736400, at *2 (10th Cir. April 2, 2003) (citing Lusk, 238 F.3d at 1240). "[U]nless an ADA plaintiff can show that his impairment reduces his capabilities significantly below those of the average person, he is not deemed 'disabled' under the Act." Id.
Plaintiff has failed to show that his hip condition is substantially limiting on its face. Plaintiff's treating physician has stated that plaintiff has no restrictions as a result of his hip condition. In fact, Dr. Steuver has recommended that plaintiff walk as a means of strengthening his hip. Since his March 2003 surgery, plaintiff has sought emergency medical treatment for his hip condition on only two occasions, when his hip popped out of place. Plaintiff has not engaged in physical therapy, and he does not take any medication for hip pain.
Plaintiff contends that he is unable to walk for long distances and, in his own estimation, his walking problems are long-term, chronic, and unchanging. Plaintiff also claims that sitting has been difficult and uncomfortable since his March 2003 surgery, that he cannot sit for any significant period of time, and he believes that his sitting problems are chronic. Plaintiff contends that this creates a problem in his current job, which involves telephone work, because he must frequently interrupt his work to get up and move about. Plaintiff also claims that he cannot squat or cross his legs when he sits, which was a "lifetime habit" for him before his March 2003 surgery.
Despite plaintiff's contentions, the uncontroverted record reflects that plaintiff can walk for ten to fifteen minutes before his legs begin to tire, and that he only occasionally experiences pain in his hip after walking. Since his March 2003 surgery, plaintiff held a job as a security guard that required him to spend most of his working time walking in and around buildings. Plaintiff is virtually unlimited in most of his daily activities. Moreover, despite the fact that plaintiff must stop work at his current job to get up and move about, plaintiff testified that his co-workers also frequently rise to stretch. Accordingly, even viewing the facts in a light most favorable to plaintiff, the court finds that plaintiff has not demonstrated that his impairment is severe enough, on its face, to substantially limit his major life activities of sitting and walking.
Because plaintiff's impairment is not substantially limiting on its face, plaintiff must present evidence comparing his restrictions to those of an average person. Lusk, 238 F.3d at 1240. Other than stating that his co-workers at his current job frequently rise to stretch, plaintiff has presented no evidence comparing his restrictions to those of an average person.
In fact, it appears that, other than some minor limitations such as resting after he walks for ten to fifteen minutes and getting up from a sitting position to move about when he sits for extended periods of time, plaintiff is primarily unlimited in his every day activities. Plaintiff's treating physician has given him no restrictions on his activities. Plaintiff vacuums, grocery shops, watches his grandkids, performs yard work, dresses and bathes without assistance, works on pipes and electrical wiring in his home's crawl space, shovels snow, and helps lift light items. Viewing the entire record in a light most favorable to plaintiff, plaintiff has failed to establish a genuine issue of material fact regarding whether he is disabled within the meaning of the ADA. Accordingly, summary judgment is appropriate on plaintiff's ADA claims. IT IS THEREFORE ORDERED that defendant's Motion for Summary Judgment (Doc. 22) is granted.
Because the court finds that plaintiff has failed to establish that he is disabled within the meaning of the ADA, the court declines to analyze defendant's arguments regarding whether plaintiff was discriminated against because of his disability.
IT IS FURTHER ORDERED that this case is dismissed.