Opinion
No. 99-1504-JTM
May 21, 2001
MEMORANDUM ORDER
The present action is a claim by plaintiff Ellen McCoy against her former employer, USF Dugan, Inc., for violation of the Americans with Disabilities Act (ADA). Dugan has moved for summary judgment on a variety of grounds. For the reasons stated herein, the court finds that summary judgment must be granted to defendant.
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
McCoy started work for Dugan as an Accounts Receivable Clerk on January 13, 1993 and was paid $8.00 per hour. She was hired as an employee-at-will and she understood the implications of this relationship.
USF Dugan has a published policy that prohibits discrimination based on disability.
McCoy was diagnosed with multiple sclerosis (MS) in March of 1995. At that time, the company's Human Resources Director, Lisa McDonald, asked McCoy if she required special accommodations in order to perform her job properly. McCoy requested a special parking space allowing her to park closer to the building because of the ice and snow. McCoy stated in her deposition that the company "immediately" complied with this request, and allowed her to park close to the building. She was satisfied with defendant's response to her request for accommodation. (McCoy Dep. at 31-32).
McCoy has testified she made no other requests for on-the-job accommodation during her employment with Dugan. She did not feel that she needed any accommodation and testified that nothing related to her condition precluded her from performing her job duties.
Lisa McDonald asked for documentation from McCoy's doctor if McCoy required any accommodation whatsoever or needed job modifications as a result of the MS.
McCoy's duties in the collection department required her to telephone customers to collect on delinquent accounts.
Regarding her physical limitations McCoy testified:
Q. Was there anything about your condition that affected your major life activities?
A. Yes.
Q. Please describe that.
A. Sports.
Q. What do you mean?
A. I couldn't go bowling, I couldn't go dancing, I couldn't play tennis.
Q. Anything else?
A. I couldn't ride a bicycle.
Q. Anything else?
A. No, I don't think so.
. . . .
Q. My question was: Since you were diagnosed with MS in 1995, you've described what things you were unable to do — bowling, dancing, tennis and riding a bike — has it progressed since then? Are there additional things you're unable to do?
A. No.
(Id. at 80-81, 83).
When McCoy was evaluated on July 23, 1993, her supervisor determined that her initiative was poor and she agreed with that determination.
On January 1, 1996, Dugan acquired another trucking company named Transus. This acquisition doubled the sales of Dugan. As a result, the number of past-due accounts increased dramatically. At some time in 1996, Dugan's parent company, USFreightways, informed Dugan that its percentage of outstanding accounts receivable was unacceptable and improvement was necessary. Glenn Jackson, a Regional Sales Manager with the company, was appointed as the Director of the Collection Department in July of 1997.
Jackson became concerned about McCoy's performance, and when asked about it in his deposition, he stated:
Q. What about Ellen McCoy?
A. Ellen, we had some issues with.
Q. Was she fair?
A. No.
. . . .
A. No. The performance was poor. And I will also qualify, too, that I don't feel that "fair" is necessarily an acceptable performance measure. "Fair" means somebody that may have some potential, but we just need to get them on the right track. But I don't consider "fair" — "fair" to be a great — a great performer. Let's put it that way.
Q. So someone who was fair had potential, but they needed to get on the right track?
A. That's pretty much it, yes.
Q. Did you rate Ellen McCoy's ability as — less than fair?
A. Less than fair, would be.
Q. Did she have any potential?
A. Any potential?
Q. Yes.
A. I never saw it. Let's put it that way. I mean, maybe she did. I certainly worked very, very hard to try to realize the potential. But it just never developed.
(Jackson Dep. at 101-02).
Jackson approached Lisa McDonald and told her his concerns about McCoy's ability to handle her workload. He testified that he also tried to help Ms. McCoy become a productive collector.
Q. What did you do to work very, very hard to realize Ellen McCoy's potential?
A. Well, I think I've got plenty of documentation where we sat down and discussed various issues and problems and how to correct them. Phone calls, focus, follow-up. I worked real hard on those kinds of issues.
Q. You say that you have documentation of this, of these things that you then described.
A. There's some documentation, I believe, where I even out laid [sic] some suggestions for improvement.
(Id. at 103-04). McCoy disagrees with this portrait. She complains that her contact with Jackson was limited, that he ignored her when she said "good morning," and that all she got were reprimands. However, McCoy's complaint that Jackson was inaccessible is also in conflict with her testimony that she generally "tried very hard to just kind of keep my distance from him." (McCoy dep. at 120). The documentary evidence shows repeated performance-related contacts between Jackson and McCoy.
Jackson presented documentation to Lisa McDonald that showed that the amount of receivables collected by McCoy was insufficient. Jackson knew McCoy had MS and asked Ms. McDonald whether there was something about her condition that might cause her not to perform as well as the other collectors.
Debbie Shelton is a collector for Dugan and has worked in the collection department for almost eleven years. She has held various supervisory positions in the collection department, including monitoring collectors' performances. Jackson and Shelton evaluated collectors based on the collector's total receivables and aging reports. As head collector and a former supervisor, Shelton discussed McCoy's performance with Jackson:
Q. Did he ever ask you your opinion of Ellen as a collector?
A. Yes.
Q. When did he do that?
A. Maybe the fall of `97. I mean I'm basing it off the time period of when we changed her position because [in] my personal opinion Ellen's performance was slipping.
Q. And when did you think that her performance started to slip?
A. Somewhere probably toward the end of the fall of `97. Her attitude toward the department and her job was not what it used to be when she started there.
. . . .
Q. What did you tell him?
A. That I thought that her performance was not that good that maybe there needed to be some changes made.
Q. Specifically what was wrong with Ellen's performance in your opinion?
A. She just wasn't doing her job.
Q. Well, in what respect?
A. With the time she was gone, we got calls. When people are not there, we do their work for them. We do the past-due letters. We get past-due letters. We did those. When you work them and there was no notes if you got a final letter, which was something that was over four months old, and you went into the account and there was no notes made in four months' time, there was something wrong, and she had had those same accounts in that same four-month time period. It wasn't like she only inherited that account or that terminal in the last month, so when she was gone whether it was — no, if she missed a day or so, no, we didn't normally do them, but when it was in longer time periods if she took — however long she was off for the extended time period when she was on her medication if it was a week or two weeks or three weeks, we would have filled in and taken and done those bills as opposed to letting them sit on the desk. We would have taken and we would have worked them. We passed them out to all collectors.
. . . .
Q. All right. Now, tell me what you mean by her general attitude?
A. Like she didn't care. She didn't care whether they got worked or didn't. She wasn't happy. You could tell by Ellen coming in every day she was not happy doing what she was doing, and she told me she wasn't happy. She didn't like her job anymore. She wasn't happy doing it whether it was just she had a change of heart, whether because some day she just didn't feel good, I don't know. She says Debbie she says I just don't like this. I don't like doing this anymore. I mean I — you know, I'm not — I just can't get into it. What her terminology was, I don't remember.
(Shelton Dep., p. 36, 45-46, 51).
Dugan received complaints from customers because of McCoy's performance problems. Customers called other collectors and Shelton after speaking with McCoy and receiving a past due notice. The customers stated that McCoy had told them she would take care of the matter. However, no notes were made in the files, and McCoy failed to return telephone calls. Shelton personally took at least ten such calls from customers. Shelton felt that McCoy had a problem with her productivity. McCoy's September, 1996 evaluation stated that she needed to work hard at reducing the volume of her accounts. McCoy and Jackson agreed that one of the responsibilities of a collector was to input the notes into the computer regarding account activity so the collector and others in the company could quickly view the status of the account. It is uncontroverted that at times McCoy failed to input the notes, and was subsequently reprimanded for this.
McCoy received a positive evaluation from Shelton in a May 1997 report. However, McCoy has also testified in her deposition that she recognized she was having problems collecting on the large accounts in 1997. She was aware that it was very important to collect from companies before they declared bankruptcy. She has further testified that she had a problem reducing her account delinquencies.
Jackson sent McCoy a memo entitled "Job Performance Issues and Concerns." Jackson made specific suggestions to Ellen McCoy to help her improve her collection performance. He also gave McCoy a written reprimand and told her she needed to make more phone calls to debtors and she needed to get more organized. McCoy signed the reprimand, indicating her awareness of the discipline.
In her deposition, McCoy agreed that Jackson's statements about her poor phone call production were valid:
Q. In the December 19th reprimand he states, "At the present, your phone call production is very poor. For example, on Thursday of this week, your first outbound call was at 10:04 a.m. and appeared to be a personal call, for it was a local number. Then throughout the rest of the day you made only three more calls; two of them were very brief and to the same number, a 205 area code in Alabama, and one more to our Shreveport terminal." Is that an accurate statement of the facts?
A. Probably so.
(McCoy Dep at 120-21).
McCoy has admitted that Jackson's criticism of her not entering notes into the computer was accurate. She agreed that she did not always enter notes of her activity into the computer.
Jackson met with McCoy on January 13, 1998, again to discuss her poor performance and to see if she would consider another position. McCoy said she did not want to move out of her collections position and that she could handle her responsibilities. Jackson sent McCoy a memo on January 15, 1998, which she signed to acknowledge receipt. The memo stated:
In our meeting you stated that you wanted to remain in your collection position and were perfectly capable of handling the job. I have no problem with this scenario and I am more than willing to give you the opportunity to continue on. However, I will reiterate that my responsibility as a Manager is to make decisions on the best interests of the Company. Therefore, it is crucial that you perform your duties up to Company expectations and specifically concentrate on the areas of concern that I outlined in my December 19th memo to you. Please sign and date this memo so as to acknowledge receipt. With this said, let's get after taking care of business and if you have any questions whatsoever, let me know.
(McCoy dep. Exh. 9) (Emphasis in original.)
On February 6, 1995, Jackson sent McCoy another memo. Entitled "Job Performance, My Concerns," the memo began, "Ellen, there have been three (3) incidents within the past several days that are cause for concern." (McCoy dep. Exh. I). The memo detailed three accounts for which McCoy was responsible: Marine Power Inc., Speaker Boxes, and Royal Plastics.
According to the defendant, McCoy ignored direct instructions not to give Marine Power an extended payment plan, and that she issued Marine Power a payment plan. Jackson felt McCoy's handling of the Marine Power account cost the company unnecessarily, that she should have spotted the customer's potential for default. According to McCoy, the payment plan was not her idea, and was sent in a letter to her by Marine Power, which Jackson intercepted. There were no notes in the computer to indicate McCoy had made any attempt to contact or collect from Marine Power between September 11, 1997 and January 6, 1998, even though there was a large outstanding balance. According to Jackson, either McCoy did not call Marine Power or she did not record her conversations. Either way, she violated company policy.
Jackson stated that McCoy's handling of the Speaker Boxes account cost Dugan $11,597.49. Again, McCoy did not enter all notes in the computer regarding activity on the Speaker Boxes account as required by the company policy.
McCoy also failed to enter comments into the computer consistently, or not at all, for the following accounts: Peerless Chain, Empire Equipment, Sween Construction/Coloplast, and Gorman Company.
Royal Plastics complained to Jackson that it was upset by McCoy's handling of their account. No notes appeared in the computer when Jackson received the complaint. McCoy agreed with Jackson's comment that it was important to avoid such costly mistakes in the future.
McCoy met with Glenn Jackson and Gary Pruden, the Chief Financial Officer for Dugan and Jackson's supervisor, and was told that she would be moved from her collection position into an administrative support position with the same pay and benefits. Jackson believed he had to move McCoy because her performance did not meet company goals. McCoy agreed and signed the job description for the new position.
It is uncontroverted that, following the position re-assignment, McCoy copied volumes of reports of other collectors, at Dugan's expense, for the purpose of comparing herself to other collectors. Jackson asked McCoy to cease the unauthorized printing.
It also is uncontroverted that McCoy was not the only employee disciplined because of poor performance or not conforming to company policy. Jackson terminated two men, Jason Carriker and Ken Gromola, neither of whom have any known or perceived disability, because they were not performing up to expectations or had violated company procedures.
McCoy went to Lisa McDonald and stated she was unable to work with Jackson even in her new role. McDonald agreed to assess the situation and to consider other jobs that might be suitable. In March or April 1998, McCoy took an extended leave of absence to have foot surgery after she stepped on a piece of glass at home. Upon her return to work, McCoy was re-assigned at her request to another new position. McCoy had asked for a transfer out of collections, so she was not upset when she was transferred to the Human Resource/Payroll Department. Once again, McCoy received no cut in pay with this transfer.
The first two days after McCoy's transfer were very busy days in the Human Resource/Payroll Department. According to Kelly Lowe of that Department:
The employees in the Human Resources/Payroll Department were assigned cubicles. Ms. McCoy was assigned a cubicle in which to perform her duties in her new position. The cubicle was furnished with a telephone, computer, adding machine, etc. Ellen McCoy arrived in the department with a box of personal belongings. She unpacked the personal belongings and settled in to her cubicle.
(Lowe Aff. at ¶ 5.) At the time, the department was short staffed and Lowe was in a supervisory position over eleven other employees. Lowe was directed to assign tasks to Ellen McCoy so that she could assist the Human Resource/Payroll personnel during the first few days of her transfer. Lowe anticipated that, once McDonald returned to the office, time would be set aside in which Ellen McCoy would be trained completely and the specific duties and responsibilities of her new position would be explained to her. Co-workers in the Human Resource Department expressed concerns about McCoy's inability to perform basic office tasks such as operate a 10-key machine and alphabetize.
One of McCoy's assigned tasks was to help process some documents. Lowe experienced problems with McCoy's work in that she was taking an unusually long time to complete the assignment. Lowe asked McCoy on several occasions how she was coming with the assignment and whether she needed any help. McCoy responded that she was doing fine and declined any help. When McCoy had finished the task, Lowe found she had made many mathematical errors in the work.
McCoy was also assigned the task of assisting with setting up files for new hires and making sure the correct documents, chain of custody forms, payroll details, job description, etc., were complete and transmitted to the correct terminal. (Lowe Affidavit, ¶ 10.)
On May 12 or 13, 1998, McCoy left for lunch but did not return to work that afternoon. Patty Zoeller of the HR Department informed Lowe that McCoy had called in to say she had backed her truck into another vehicle over the lunch hour and although she was not injured, McCoy would not be returning to work that afternoon.
On the third day of her new assignment, McCoy "decided she did not need this" and quit work with no notice to her employer. (McCoy Dep. at 62). She quit in the early afternoon of May 14, 1998 by informing Patty Zoeller by telephone that she was resigning. Zoeller informed Lowe that McCoy had left for lunch and had telephoned her to inform her she was resigning effective immediately. Zoeller told Lowe that McCoy gave no explanation or reason for her decision.
Lisa McDonald was "shocked" that McCoy quit so abruptly without giving the department time to train her. (McDonald Dep. at 78).
The basis for McCoy's complaint regarding disability is that on one occasion Glenn Jackson allegedly called her "lame," and had asked others if her medication was "fogging her focus." (McCoy Dep. at p. 137, 223).
Whether or not Jackson made the comment about McCoy being "lame" is controverted. In support of her contention that the comment was made, McCoy cites the affidavit of her friend and co-worker, Darrelynn Yeager. According to Yeager, she overheard a conversation between Jackson and James Barton in which Jackson made the comment: "Like Ellen, she's lame." (Yeager Aff. at ¶ 3, 4). As noted, Jackson denies making the comment. Lisa McDonald could not find any witness who heard Jackson call McCoy "lame." McDonald spoke with Yeager specifically, who denied having heard such a comment. Sharon Pentz (another collector with McCoy) denied hearing Glenn Jackson call McCoy "lame."
Jackson does not recall saying anything to McCoy about her medicine "fogging her focus."
Immediately after McCoy claimed she was called "lame" by Jackson, Jackson was called before Lisa McDonald, Gary Pruden (his supervisor), and Charles Eggleton (company president) and questioned about this comment. Jackson denied making the comment.
Dugan has a formal procedure in place for complaints about discrimination and McCoy was aware of this procedure.
Conclusions of Law
Summary judgment is appropriate because the plaintiff has failed to demonstrate she is a qualified individual with a disability, and because she has failed to show that she suffered any adverse employment action. The ADA protects employees from discrimination on the basis of a disability. The plaintiff in an ADA action must show "(1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that the employer terminated him because of his disability." White v. York Int'l, 45 F.3d 357, 360-61 (10th Cir. 1995). The Act defines a disability as "a physical or mental impairment that substantially limits one or more of [the] major life activities" of the plaintiff, or has a record of or is regarded as having such an impairment. 42 U.S.C. § 12102(2). Claims that an individual falls within the protections of the ADA accordingly "generally involves three inquiries: (1) determining whether the individual has an impairment or a record of impairment or is regarded as having such impairment; (2) identifying the activities the individual alleges to be affected by the impairment and determining whether they constitute "major life activities" under the ADA; and (3) determining whether the impairment substantially limits the major life activity." Selenke v. Medical Imaging of Colorado, ___ F.3d, ___ 2001 WL 497381, *6 (10th Cir. May 10, 2001). Here, the uncontroverted facts establish the plaintiff has suffered from multiple sclerosis since 1995. However, asked in her deposition about the effect of the disease, McCoy affirmatively stated that the only significant effect was to limit her ability to play certain sports or engage in similar activities (bowling, bicycling, playing tennis, and dancing).
The defendant also seeks summary judgment on the grounds that McCoy was not adequately performing her job. Although there is considerable evidence supporting the defendant's contention that plaintiff's job performance was not satisfactory and that she violated company standards in the collection department, the plaintiff has provided some evidence that measured by other standards (current account percentages) she was performing well, and that the specific instances of error cited by the defendant were not her fault or de minimis. The court finds that the defendant's argument relating to McCoy's allegedly poor job performance does not independently support summary judgment.
The response to the motion for summary judgment is an energetic attempt to evade plaintiff's direct admissions in her deposition. Counsel now cites her requested accommodation of a handicapped parking space (which was granted by the company), and seeks an inference from this that she was significantly impaired in the ability to walk. But, again, McCoy was directly asked in her deposition if she was impaired in any activity other than the sports she cited. She indicated she was not impaired.
The response also notes that McCoy's doctor imposed a limitation of no lifting in excess of 20 pounds. It is true that lifting is a major life activity which may, if significantly impaired, constitute a disability within the meaning of the ADA. See Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170 (10th Cir. 1996). However, the ADA requires substantial limitation of the specified life activity. In this context, an individual's ability to perform a major life activity is substantially limited if she either is "[u]nable to perform a major life activity that the average person in the general population can perform" or is "[s]ignificantly 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).
"Evidence that a lifting impairment merely affects a major life activity is generally insufficient; rather, a plaintiff must produce comparative evidence from which a reasonable inference can be drawn that such activity is substantially limited." Lusk v. Ryder Integrated Logistics, 238 F.3d 1237 (10th Cir. 2001). In Lusk the court concluded that a truck driver who had had open heart surgery and who was subsequently released with a 40-pound lifting restriction was not disabled within the meaning of the ADA. The court noted that the plaintiff "did not describe any substantial limitations on his day-to-day activities or the long-term impact of his restriction during his deposition, nor did he present any comparative evidence as to the general population's lifting capabilities." Id. See also Gibbs v. St. Anthony Hospital, No. 96-6063, 1997 WL 57156, at *2 (10th Cir. Feb.12, 1997) (25-pound repetitive lifting restriction, without more, insufficient to demonstrate substantial limitation on major life activity of lifting where plaintiff failed to offer evidence comparing her lifting restrictions to capabilities of average person in general population).
Other circuits have generally required some evidence, beyond general evidence of the existence of a lifting restriction, of the plaintiff's lifting abilities of the plaintiff in comparison to the general population. See Duncan v. Washington Metropolitan Area Transit Authority, 240 F.3d 1110 (D.C. Cir. 2001) (manual laborer with series of back injuries and 20-pound lifting restriction not shown to be disabled under major life activity of working); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997) (a "general lifting restriction imposed by a physician, without more, is insufficient to constitute a disability within the meaning of the ADA" with regard to major life activity of working); Williams v. Channel Master Satellite Systems, 101 F.3d 346, 349 (4th Cir. 1996) (stating "as a matter of law, that a twenty-five pound lifting limitation — particularly when compared to an average person's abilities — does not constitute a significant restriction on one's ability to lift, work, or perform any other major life activity"); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996) (the "inability to perform heavy lifting does not render a person substantially limited in the major activities of lifting or working."); McKay v. Toyota Motor Mfg., U.S.A., 110 F.3d 369, 373 (6th Cir. 1997) (plaintiff with carpal tunnel syndrome and 20-pound lifting restriction was not disabled because "at best, her evidence supports a conclusion that her impairment disqualifies her from only the narrow range of assembly line manufacturing jobs that require repetitive motion or frequent lifting of more than ten pounds"); Gutridge v. Clure, 153 F.3d 898, 900 (8th Cir. 1998) (forty-five pound restriction does not amount to a substantial limitation on the ability to lift); Thompson v. Holy Family Hospital, 121 F.3d 537, 540 (9th Cir. 1997) (same as to twenty-five pound lifting restriction); Wooten v. Farmland Foods, 58 F.3d 382, 384, 386 (8th Cir. 1995) (plaintiff not substantially limited in major life activity of working where plaintiff was restricted to light duty with no working in cold environment and no lifting items weighing more than 20 pounds).
Here, plaintiff has provided absolutely no evidence of the comparative effect of her lifting restriction. Moreover, as noted earlier, McCoy herself stated directly that her condition affected only her ability to perform certain recreational and sports activities.
Finally, McCoy argues that, even if she was not actually significantly impaired in a major life activity, she was "regarded as" disabled by the defendant. In this vein, the response cites an e-mail by Glenn Jackson to Lisa McDonald noting the existence of McCoy's medical condition. The evidence, however, establishes only that plaintiff's employer was aware of her physical condition, not that it regarded that condition as a significant impairment of any major life activity. Indeed, Jackson, after noting the potential role of McCoy's medical condition, nonetheless notes that McCoy "has emphatically told me she can do the job." (Def. Reply. Exh. P). The e-mail correspondence concludes with the note that "if an employee comes to us and says that they can do the job (and are willing to do the job) then we should give them the benefit of the doubt" and that "we, as a company, owe her the chance to prove herself." (Id.)
Even if the plaintiff were deemed to be disabled within the meaning of the ADA, summary judgment would in any event be justified because plaintiff has failed to make any showing of any adverse employment action. The evidence establishes that plaintiff stayed at the same pay rate in the transfer first to backup collector, and second to the Human Resources Department. There is no evidence to support the characterizations that the backup collections position was either dead-end or make-work as plaintiff asserts in the response. To the contrary, Darrelynn Yeager, who plaintiff relies on for the rest of her case, affirmatively states that the position involved numerous responsibilities. McCoy was not demoted, and suffered no cut in pay.
After her transfer to Human Resources department, she quit after only three days. Upon her transfer, she was given immediate work and scheduled for further training. McCoy complains that she was not immediately assigned a permanent cubicle. The uncontroverted evidence establishes that, at the time of her transfer to the Human Resources department, the department was experiencing staffing problems. There is no evidence the lack of a permanent cubicle assignment was anything other than a temporary result of the staffing problems in the department, and McCoy's decision to quit after three days in the position prevented any further accommodation. There is simply no evidence from which a reasonable person in McCoy's position would have concluded — after only three days — that the working conditions in the department were demeaning or intolerable. Further, there is no basis in the evidence for concluding that McCoy was constructively discharged from her position. See Yearous v. Niobrara County Mem'l Hospital, 128 F.3d 1351, 1356 (10th Cir. 1997).
Finally, the court finds no basis for concluding that plaintiff was harassed by the defendant on the basis of her disability. Plaintiff's response repeatedly refers to an apparent litany of disparaging comments made by Glenn Jackson, but the uncontroverted evidence establishes that Jackson made at most two comments (potentially) regarding McCoy's physical condition: (1) at one point, he inquired whether other workers thought McCoy's medication could be "fogging her focus," and (2), at another point, he referred to McCoy to other workers as "lame." Although Jackson denies making the latter comment — and other persons who plaintiff claims also heard the comment have also denied that it was made — the court must assume that Jackson did make this comment, and that it was a disparaging remark about her physical condition.
Historically, of course, the word "lame" has been a reference to a disability in the limbs, especially the legs. See Oxford English Dictionary (online edition) (defining term as "Crippled through injury to, or defect in, a limb; spec. disabled in the foot or leg, so as to walk haltingly or be unable to walk"). However, in modern usage, the term commonly refers not to physical abilities, but to (perceived) intelligence, competence, or social sophistication. Thus, "lame" is frequently used to refer to a person deemed a "fool; idiot," a person "socially unsophisticated; naive; Square; ( hence) easily imposed upon; stupid; inept; ineffectual." 2 J.E. Leighter, Random House Dictionary of American Slang, 394 (1997). In the present memorandum, of course, the court resolves all inferences in favor of plaintiff, and assumes both that Jackson made the comment, and that it was used in its historical context.
The court finds that these two, isolated comments are insufficient to demonstrate harassment based upon disability. The first comment, however inartfully phrased, represents no more than an inquiry about the possible effects of the medication of a subordinate worker who has conceded that she made a number of errors in performing her job. The second comment, standing by itself or with the query about whether McCoy's medication might be "fogging her focus," is simply insufficient to demonstrate actionable harassment. See Smith v. Norwest Financial Acceptance, 129 F.3d 1408 (10th Cir. 1997) ("isolated incidents of harassment, while inappropriate and boorish, do not constitute pervasive conduct").
IT IS ACCORDINGLY ORDERED this day of May, 2001 that defendant's motion for summary judgment (Dkt. No. 35) is hereby granted.
IT IS FURTHER ORDERED that plaintiff's motion for leave to file a sur-rebuttal memorandum in opposition to summary judgment (Dkt. No. 52) is denied.