Opinion
No. C98-78-MJM.
March 6, 2000.
OPINION AND ORDER
The plaintiff, James E. Maggard ("Maggard"), is a former employee of the defendant, Danka Office Imaging Company, ("Danka"). Maggard claims that Danka unlawfully terminated his employment during a reduction in force ("RIF") at its Cedar Rapids facility.
In a three-count complaint, Maggard sued Danka for discrimination pursuant to the Age Discrimination in Employment Act, ("ADEA") 29 U.S.C. § 623(a)(1) (Count I), the American with Disabilities Act, ("ADA") 42 U.S.C. § 12101 et seq. (Count II), and Iowa Civil Rights Act, ("IRCA") Iowa Code ch. 216.6 (Count III).
Pending before this court is Danka's motion for summary judgment as to all Counts.
SUMMARY JUDGMENT STANDARD
The standard for granting summary judgment is well established:
Rule 56. Summary Judgment
(c) . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56. A court considering a motion for summary judgment must view all facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. See Munz v. Michael, 28 F.3d 795, 796 (8th Cir. 1994); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ( quotation omitted); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The party moving for summary judgment bears the "initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of genuine issue." Celotex, 477 U.S. at 323. Once the moving party has carried its burden, the opponent must go beyond the pleadings and designate specific facts-by such methods as affidavits, depositions, answers to interrogatories, and admissions on file-that show that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324.
To avoid summary judgment, the nonmoving party does not have to provide direct proof that genuine issues of fact exist for trial, but the facts and circumstances that the nonmoving party relies upon must "attain the dignity of substantial evidence and must not be such as merely to create a suspicion." Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.) ( cert denied 474 U.S. 1057 (1985)). In essence, the evidence must be "such that a reasonable jury could find a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In undertaking this analysis, the Court is cognizant of the fact that "discrimination cases often depend on inferences rather than on direct evidence," [thus,] summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111 (8th Cir. 1995), quoting Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994).
Bearing in mind these standards, the Court will explain the context in which this case arises by describing the facts which are not dispute. In its legal analysis, the Court will address, where necessary, Maggard's assertions of genuine issues of material fact that may preclude the granting of summary judgment in favor of the defendant.
UNDISPUTED FACTS
Danka is an independent distributor of office equipment, associated supplies, and services. (Affidavit of William Radford ¶ 4). In November of 1995, Danka acquired Automated Office Systems ("AOS"), an Iowa based office supply store, with its principle office in Cedar Rapids, Iowa. (Maggard Dep. at 14). Maggard, was first employed by AOS in its Cedar Rapids office in 1979, and continued to work there after Danka acquired AOS in 1995. (Maggard Dep. at 14, 32).
From 1979 until January 1998, Maggard worked as a service technician; both in the field, which entailed driving a company car from customer site to customer site in order to maintain and service office equipment, and in the shop which required him to remain on site. (Maggard Dep. at 31, 59-61, 71-72, 76-77; Def's Ex. 14).
In April of 1996, Maggard became ill and was diagnosed with adult onset Diabetes Mellitus. (Maggard Dep. at 87). After Maggard took a brief hiatus, he returned to work with impaired vision caused by the diabetes. (Maggard Dep. at 89). Sometime in 1994, AOS created a new service technician position in the shop for Ted Tannihill. (Maggard Dep. at 87-88). Originally this position was to include an in-house training component. (Maggard Dep. at 86-87). However, that aspect of the position never developed, and it remained essentially a service technician position. (Maggard Dep. at 76-77). Concomitant to Maggard's return to work in 1996, Danka decided to move Tannihill to Dubuque, Iowa. (Maggard Dep. at 87-88). As a result, Danka was able to accommodate Maggard's troubled vision by moving him from his field position (which required driving) to the position in the shop originally held by Tannihill. (Maggard Dep. at 78-79, 88-89, 92-93). Maggard continued to drive to and from work in his personal vehicle. (Maggard Dep. at 115-16).
Between October 1997, and January 1999, Danka reduced its service operation in its North Central Division (which includes its service centers in Iowa) from approximately 850 employees to 670 employees. (Affidavit of Pagono ¶ 7). Likewise, Danka reduced its supply chain in the Northern Division by about 50 employees. (Affidavit of Radford ¶ 9). Since October 1997, Danka's workforce was decreased in size by approximately 3,000 employees. (Affidavit of Nelson ¶ 6).
The facts regarding Danka's reduction in force were supplied by Danka and went uncontested by Maggard in his opposition motion.
On Wednesday January 14, 1998, Maggard was informed by his supervisor, Service Manager Wayne Sliger, that he was no longer under Sliger's supervision and he was instead working on the supply chain. (Maggard Dep. at 138-139). The following Monday, January 19, 1998, Maggard was informed that the supply line was being eliminated and his employment with Danka was terminated. (Maggard's Dep. at 137-38). Maggard was 55 years old at the time. Maggard's termination is the subject of the current lawsuit.
ANALYSIS
Maggard's Age Discrimination Claim
The framework to analyze the employment discrimination claims brought pursuant to Title VII, 42 U.S.C. § 2000e is the same under federal law as it is under Iowa law. See Iowa Code § 216.6 (1997); Boelman v. Manson State Bank, 522 N.W.2d 73, 77 (Iowa 1994); Hulme v. Barrett, 480 N.W.2d 40, 42 (Iowa 1992); see also Thomas v. St. Luke's Health Systems, Inc., 869 F. Supp. 1413 (N.D.Iowa 1994) ( citing cases). Because neither the plaintiff nor the defendant has argued the state discrimination claims differently from the federal discrimination claims, this Court will address both the state and federal claims through the well-established burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Elliott v. Montgomery Ward Co., 967 F.2d 1258, 1260 (8th Cir. 1992).
The ADEA prohibits employer discrimination against an individual forty years of age and older with respect to terms, conditions, or privileges of employment because of the individual's age. §§ 29 U.S.C. § 623(a), 631. In order to meet a prima facie case of age discrimination under the ADEA and the IRCA a plaintiff must establish that: (1) he was within the protected age group; (2) he met applicable job qualifications; (3) he was discharged; and (4) after the plaintiff was terminated, the position remained open or the employer hired a person not in the protected age group to fill this opening. See Bialas v. Greyhound Lines, Inc. 59 F.3d 759, 762-63 (8th Cir. 1995); Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994).
Because a RIF is considered a legitimate reason for termination, the plaintiff must produce some additional evidence that age was a motivating factor in the termination. See Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir. 1995). The additional evidence is also necessary because the plaintiff is unable to meet the fourth factor stated above, as the position has been either eliminated or combined with another position. See Bashara, 26 F.3d at 823; Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1165 (8th Cir. 1985).
Danka does not contest the first four elements of the prima facie case: Maggard was within the protected age group (55 years of age at the time of discharge), he met the qualifications for shop service technician, he was discharged, and a portion of the shop technician position remained in existence. (Def. Br. p. 10, Doc. # 31). As to the showing of age animus, however, Danka contends that Maggard's evidence is insufficient to meet a prima facie case.
As evidence of age discrimination Maggard alleges that he was the oldest technician terminated and those service technicians who were retained by Danka, (both from the shop and the field), were much younger than he. (Maggard Dep. at 159-60; Affidavit of Shiley ¶ 5). Danka is correct that with a RIF, "the fact that the plaintiff's duties were assumed by a younger person is not in itself enough to establish a prima facie case." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1243 (8th Cir. 1991). However, Maggard offers more than merely his age as evidence of discrimination. For instance, Maggard alleges that he was employed as a shop service technician for two years, and without explanation, he was transferred to the supply line less than a week prior to the line's elimination. (Maggard Dep. at 137-38, 151-52). Moreover, while Maggard was a trained service technician for 19 years, he had no training in the supply line. (Maggard Dep. at 151-52). Maggard's lack of experience in the area of supply, and the temporal proximity of Maggard's move to the supply line and the discontinuance, raises an inference of illegal motive in Maggard's termination.
Maggard also offers an affidavit from his supervisor, Brian Shiley, who states that Maggard's age and loss of vision were, in his estimation, major factors in Maggard's termination. (Affidavit of Shiley ¶ 7). Shiley also states that Maggard was often referred to as the "old blind guy" by those who worked with him, including the manager of customer service. (Affidavit of Shiley ¶ 6). Finally, Maggard contends that when he was terminated, he was told by his supervisor that he was being put "out to pasture." (Maggard Dep. at 14).
Danka argues that Shiley's affidavit is inadmissable as a matter of law pursuant to Federal Rules of Civil Procedure 602 (lack of personal knowledge), 701 (lay opinion) and 704 (opinion on the ultimate issue). Shiley knew Maggard in 1995, trained him on certain machines, and was Maggard's direct supervisor in 1996 until Maggard was moved to the supply line in 1998. (Shiley Affidavit ¶ 1-4). As a supervisor at the service center, Shiley very likely has personal knowledge of the reasons for terminating and retaining the staff under his supervision, thus satisfying Rule 602. Additionally, Shiley's opinion as a supervisor of Maggard and others could be considered "rationally based on [his] perception," thus satisfying Rule 701. Fed.R.Civ.P. 701. Finally, Danka's Rule 704 objection appears to be misplaced. Shiley's opinion on the ultimate issue is admissible because Rule 704(a) clearly states "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." For these reasons, this Court finds Shiley's affidavit admissible.
Citing Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311 (8th Cir. 1996), Danka maintains these "stray marks" in no way prove discriminatory animus because they are allegedly detached from the decision making process. (Def. Reply Brief pg. 1 n. 1; Doc. # 40). However, Danka's reliance on Aucutt is misplaced. Aucutt, and the legal precedent on which it relies, consider whether stray discriminatory remarks are direct evidence of discrimination in order to determine whether or not to apply the "mixed motive," burden shifting analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989). See Aucutt, 85 F.3d at 1315-16; Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991). Those courts did not hold that random discriminatory remarks in the workplace are in no way relevant to a prima facie showing of discriminatory animus if they are made outside of the decision-making process. Rather, the cases held that in order for discriminatory remarks to be deemed direct evidence of discrimination, allowing a plaintiff to benefit from the burden shifting analysis of Price Waterhouse, the remarks must be related to the decision-making process itself. Aucutt, 85. F.3d at 1316; Beshears, 930 F.2d at 1354. This Court finds the remarks, coupled with other evidence of pretext, are probative of discriminatory animus in establishing a prima facie case. See Madel v. FCI Marketing, Inc., 116 F.3d 1247, 1252 (8th Cir. 1997) (finding "[e]vidence of a corporate atmosphere hostile to older employees can, if sufficient together with other evidence or pretext, support a reasonable inference of age discrimination.") (internal quotations omitted).
It is highly unusual, in an employment case, to have the type of direct testimony from a terminated employee supervisor as exists in this case. The affidavit of Mr. Shirley, alone, is sufficient for the plaintiff's age claim to survive the motion for summary judgment. In fact, the evidence is sufficiently strong to probably take the case out of the normal burden shifting analysis that is employed in most employment discrimination cases, and consider this as a "direct evidence" case in which there is direct evidence by an employee's supervisor of age animus.
This court finds the record as a whole contains sufficient evidence to support a prima facie inference of illegal age discrimination. It will be up to the fact finder to weigh the credibility of the witnesses and evidence in deciding whether the Maggard's proof supports a verdict in his favor. Danka's motion for summary judgment as to Count One and Count Three, with regards to age discrimination, is denied.
"Iowa courts look to the ADA, its regulatory interpretations, and its caselaw in construing a disability claim under the IRCA." Berg v. Norand Corp., 169 F.3d 1140, 1145 n. 5 (8th Cir.) ( cert denied 1205 S.Ct. 174 (1999). Thus, this Court's analysis applies to Maggard's disability claims under both the ADA and the IRCA.
"The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability." Sutton v. United Airlines, Inc., 119 S.Ct. 2139, 2143 (1999). To state a claim under the ADA or the IRCA, a plaintiff must show that (1) he is disabled within in the meaning of the ADA, (2) able to fulfill the essential functions of the job, with or without accommodation; and (3) suffered an adverse employment action because of his disability. See Berg, 169 F.3d at 1144. An individual is deemed disabled if he has "(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) [is] regarded as having such an impairment." 42 U.S.C. § 12102(2). In its regulations, the Equal Employment Opportunity Commission ("EEOC") states that major life activities include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(j) (1998).
Maggard first asserts he is disabled because of a vision impairment that derived from his diabetes. To this end, Maggard testified that he has trouble focusing which limits his ability to read quickly. (Maggard Dep. at 185-85). Apart from his own testimony, Maggard has offered no other evidence to substantiate this claim. On the contrary, Maggard himself offered statements from two medical professionals who were of the opinion that Maggard "has no physical disability due to diabetes mellitus." (Hazelton ltr. at ¶ 3; Oetting ltr. at ¶ 4 ("there is no evidence that Mr. Maggard had any significant decline in his visual function secondary to the diabetes or any other condition)). Maggard's vague assertion that he has difficulty focusing is insufficient evidence upon which the Court can determine whether he has established he has a disability within the meaning of the ADA. See e.g. Hileman v. City of Dallas, Texas, 115 F.3d 352, 355 n. 4 (5th Cir. 1997) (finding plaintiff's testimony that she could only read one page at a time does not rise to the level of substantially limiting a major life activity).
Even assuming that Maggard has trouble focusing, this impairment does not appear to be substantially limiting to the major life activity of seeing. In considering whether an individual is substantially limited in a major life activity a court should consider the following factors: "(i) the nature and severity of the impairment, (ii) its duration or expected duration, and (iii) its actual or expected long-term impact." Aucutt, 85 F.3d at 1319 ( citing § 29 C.F.R. § 1630.2(j)(2)). Maggard has asserted repeatedly that he had 20/20 vision after his diagnosis of diabetes, that he drove to and from work, he drove company vehicles on occasion and could have returned to the field position at "the drop of a hat" even though he had presented the company with information to the contrary. (Maggard Dep. at 88-91). Thus, the impact of his impaired ability to focus, while perhaps slowing him down in some respects, does not appear to be severe enough to substantially impede any major life activity.
Likewise, Maggard explained that by concentrating he can overcome his impeded ability to focus. (Maggard Dep. at 91-92, 105-07). Last term, the Supreme Court addressed a series of cases in which the plaintiff took corrective measures such that their impairments no longer substantially limited a major life activity. See Sutton, 119 S.Ct. 2139; Albertson, Inc. v. Kirkingburg, 119 S.Ct. 2162 (1999); Murphy v. United Parcel Service, 119 S.Ct. 2133 (1999). In each case, the Court found that the plaintiffs were not considered disabled within the meaning of the ADA. See Sutton, 119 S.Ct. at 2149; Albertson, 119 S.Ct. at 2168-69; Murphy, 119 S.Ct. at 2135. In view of this recent Supreme Court precedent, and plaintiff's inability to establish he is substantially limited in a major life activity, this Court finds Maggard is not disabled within the meaning of the ADA.
Alternatively, Maggard maintains he is perceived by Danka as having a disability. In order to maintain this claim, Maggard must establish that Danka regarded him as having "a physical or mental impairment that substantially limits one or more of the major life activities." Sutton, 119 S.Ct. at 2149. "There are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Id. See also Murphy, 119 S.Ct. at 2137 (noting that "person is `regarded as' disabled within the meaning of the ADA if a covered entity mistakenly believes that person's actual, nonlimiting impairment substantially limits one or more major life activities."); Aucutt, 85 F.3d at 1319-20 (noting "[a] person is `regarded as having' an impairment that substantially limits major life activities when others treat that person has having a substantially limiting impairment.")
In the present case, Maggard argues that Danka "mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton, 119 S.Ct. at 2149. Specifically Maggard alleges that Danka perceived his impaired vision precluded him from driving, which in turn foreclosed him from the position of field service technician. Maggard maintains that if Danka did not misperceive Maggard's limited vision impairment, they could have moved him to a field service technician position after discontinuing the supply line, rather than terminating his employment altogether.
Danka avers, however, that Maggard represented to the company that his vision was impaired and he could not drive a car. Danka bases this assertion on two doctor's notes allegedly supplied by Maggard. (Def. Ex's 18 25). One note states Maggard should not drive a company car or machinery due to his impaired vision. (Def. Ex. 18). The second note states Maggard's "vision does not focus correctly, however he may continue to work in the shop as he has been." (Def. Ex. 25).
Maggard alleges that Danka required that he supply a note to the company specifying he was vision impaired, but that all times he was in fact able to drive. (Maggard Dep. at 89-91). In this respect, there is an apparent dispute of fact. However, Maggard alleges that regardless of any note, Danka was aware he could drive because he drove to and from work, and on occasion he was required to drive a company car. (Maggard Dep. at 90-91, 105). Because of this knowledge, Maggard contends, Danka should have offered the field technician position to him in lieu of terminating his employment.
In so arguing, Maggard essentially defeats his own claim of perceived discrimination. Maggard cannot argue on the one hand, that Danka perceived him to be disabled and terminated him on that basis, while also arguing that Danka knew he could drive and was not significantly vision impaired, and therefore Danka should have retained him. Indeed, one would presume that if Danka believed Maggard could not see or drive, the company would not have allowed him to operate its vehicles. In any event, the fact that Danka allowed Maggard to drive its vehicles at the very least underscores the fact that Danka did not believe his impaired vision was "a substantially limiting impairment." See Aucutt, 85 F.3d at 1319-20 (noting employer must regard the disability as "substantially limiting" a major life activity); Loeckle v. State Farm Automobile Ins. Co., 59 F. Supp.2d 838, 852 (N.D.Iowa 1999) (noting plaintiff must show employer perceived her medical conditions as substantially limiting major life activities).
In order for Maggard to survive summary judgment, he must show that he is disabled or perceived to be disabled within the meaning of the ADA. Because Maggard failed to establish this threshold element of his prima facie case, Danka's motion for summary judgment is granted as to the disability claims in Count Two and Count Three of Maggard's complaint.
ORDER
For the reasons mentioned herein, Defendant's, Danka Office Imaging Inc., motion for summary judgment, is DENIED in part and GRANTED in part.
Summary judgment as to the age discrimination claims pursuant to the ADEA and Chapter 216 of the Iowa Code in Count's I and III is DENIED.
Summary judgment as to the disability discrimination claims pursuant to the ADA and Chapter 216 of the Iowa Code in Count's II and III is GRANTED.