Opinion
Cause No. 1:01-CV-393
July 15, 2002
MEMORANDUM OF DECISION AND ORDER
On October 29, 2001, pro se plaintiff Robert F. Neal ("Neal") filed the instant lawsuit against his employer, Dana Corporation ("Dana") and his Union, PACE Local 6903 ("the Union"). Neal brings claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 and under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101. Specifically, Neal alleges that Defendants discriminated against him on the basis of his age, discriminated against him on the basis of his disability, and failed to accommodate his disability. In addition, Neal claims that Defendants have retaliated against him for filing this lawsuit. Dana moved for summary judgment on all of Neal's claims on May 3, 2002. Neal filed a response on June 4, 2002, to which Dana replied in support of its pending motion on June 18, 2002. On May 17, 2002, the Union moved for summary judgment on all of Neal's claims. Neal responded to the Union's motion for summary judgment on June 20, 2002. The Union did not reply.
For the following reasons, Defendants' motions for summary judgment will be taken under ADVISEMENT at this time.
DISCUSSION
After careful review of the filings in this case, the Court is not satisfied that it has enough information to decide the summary judgment motions. Accordingly, the Court requests that the parties provide additional briefing on the following issues:
I. Retaliation Claim
Neal has been employed at Dana since March 1977. Neal suffered a work-related injury on October 31, 1991. As a result of the injury, Neal participated in a functional capacity evaluation ("FCE") on March 13, 1992. Based on the results of the March 13, 1992 FCE, Neal was placed on permanent restrictions as follows: (1) he was only allowed to lift 20 pounds occasionally; (2) he was only allowed to lift 10 pounds frequently; and (3) he was not permitted to perform constant, repetitive work.
As a result of Neal's permanent restrictions, Dana has only been able to offer him work in approximately thirteen months out of the last 10 years. While Neal is not working, he is placed on medical leave.
Neal received a second FCE on April 30, 2001. This FCE allowed Neal to (1) lift 35 pounds from floor to waist frequently; (2) lift 35 pounds from waist to shoulder frequently; (3) lift 25 pounds from shoulder to overhead frequently; (4) carry objects 35 pounds or less for a distance of 30 feet frequently; and (5) push or pull objects 65 pounds or less for a distance of 30 feet frequently. The April 30, 2001 FCE restricted Neal from frequently reaching overhead or squatting.
Although neither side discusses the incident in their summary judgment briefs, in Neal's EEOC Charge of Discrimination, Neal states that he contacted a Committeeman, Ed Stahl ("Stahl"), and a Human Resources Employee, Jim Crandal ("Crandal"), after undergoing the April 30, 2001 FCE. Neal states that Stahl said he would not help Neal: "Nothing personal, but go fuck yourself . . . you sued us." Crandal allegedly told Neal that he did not care about Neal's concerns and he planned not to get involved.
The parties are in agreement that according to the terms of the Collective Bargaining Agreement between Dana and the Union, a disabled employee may "bump" an employee with less seniority — i.e., take over the less senior employee's position — in order to obtain a position for which the disabled employee is qualified. On May 4, 2001, Neal alleges he was told that he would not be allowed to bump a less senior employee to take over a job he could perform. With respect to this claim, the Court requests the following information:
1. The Court assumes that Stahl is an employee of the Union and Crandal is an employee of Dana. Is this correct?
2. Who is the "less senior employee" Neal was not allowed to bump on May 4, 2001? Was that person really less senior? Was the job Neal sought within the range of tasks Neal was able to perform under the April 30, 2001 FCE?
3. What specific "help" did Neal ask Stahl and Crandal for? Was he requesting to be assigned work or some other help?
4. How does the fact that Neal was ultimately placed in an "oiler" position in March 2002 affect the retaliation claim?
II. ADA Claims
Neal also alleges that under the terms of the Collective Bargaining Agreement, he should have been permitted to bump less senior employees in positions for which he was qualified. Neal has produced the names of five employees that he asserts have less seniority than he and that occupy positions for which he is qualified. Defendants, however, have produced evidence showing that three out of the five employees actually occupied jobs outside the scope of duties Neal could perform. A fourth employee actually had more seniority than Neal.The fifth employee that Neal asserts he should have been able to "bump" was Tom Didrick ("Didrick"). Neal asserts that Didrick had less seniority and has submitted evidence that Didrick occupied an "oiler" position as early as October 1999. Neal would likely have been qualified for this position because Dana ultimately gave Neal an additional "oiler" position in March 2002. Defendants do not even mention Didrick in their briefs, much less explain why Neal was not allowed to "bump" Didrick.
It is possible, however, that the April 30, 2001 FCE first made Neal eligible for the oiler position. If that is the case, then arguably, Neal should have been permitted to "bump" Didrick in April or May 2001.
The Court requests the following information with respect to the ADA claims:
1. When was Didrick hired?
2. If Didrick did have less seniority than Neal, why was Neal not allowed to bump into Didrick's oiler position in 1999?
3. Was Neal qualified for the oiler position in 1999? Or did he first become qualified for that position because of the April 30, 2001 FCE? If Neal only became qualified for the oiler position in April 2001, why was Neal not allowed to bump Didrick in April 2001?