Opinion
No. CV 03-66-H-CCL.
November 4, 2005
ORDER
Plaintiff Kristi A. Pembroke filed this lawsuit pursuant to the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). Plaintiff, who began working as a grocery checker at the Helena, Montana Safeway Store in July 1991, charges employment discrimination based on disability. Defendant moved for summary judgment on the grounds that Plaintiff is not a disabled person under the ADA and that Safeway did not discriminate against her. The Court heard the matter on September 26, 2005. Both parties appeared through their counsel of record.
Upon consideration of the parties' arguments at the hearing and their submissions, and for the reasons set forth below, the Court enters the following order.
I. FACTUAL BACKGROUND.
The following facts are undisputed, except where specifically noted.
Kristi Pembroke worked as a grocery checker at the Helena Safeway store in a union position classified as a "Foods (Category 2) position." Her wage in 1997 was $10.28 per hour. At that time, after about six years of checking groceries, she began to experience pain in her upper back, which she attributed to her work. Within four months her back pain interfered with her ability to work, and she filed a Worker's Compensation claim as to the injury. Eventually, Pembroke was diagnosed with spastic torticollis, which involves recurrent transient contractions of the muscles of the neck and shortening of the neck muscles causing a tilt of the head to the affected side with the chin pointing to the other side. See Def.'s S.J. Brief at 3 (quoting Taber's Cyclopedic Medical Dictionary, 17th Ed., 2012 (1993)). In 1998, Pembroke's doctor determined that Pembroke could not perform the duties of a grocery store checker but that she could perform all duties at the video counter; as a result Safeway moved Pembroke from a grocery checker position to a temporary position in the video department. Apparently, Safeway tried to move Pembroke back to a grocery checker position, but her condition worsened, and management then returned Pembroke to the video department, where in 1991 she was ultimately permanently assigned to a union position classified as "Non-Foods (Category 2)." The first time she was moved to the video department, in April 1998, she retained her rate of pay as a grocery checker, but her hours were reduced to 30 hours per week from 40 hours per week. This stint in the video department was short-lived, and she was soon sent back to check groceries, until a new manager sent her back to the video department for two and one-half years. (APP. 008:22-009:10.)
Pembroke has numerous miscellaneous complaints about her permanent position in the video department, such as being denied regular lunch breaks, given fewer hours than other employees, and denied a retroactive pay increase. However, Pembroke's major complaint about her permanent position in the video department is that her grocery checker wage of $10.28 per hour was reduced to $7.55 per hour, which was the highest hourly rate allowed under the collective bargaining agreement for a Non-Foods (Category 2) position. Safeway first reduced her hourly wage in July, 2001, from $10.28 per hour to $7.55 per hour. When Pembroke complained to the United Food and Commercial Workers' Union, Safeway restored her wage to $10.28 per hour. However, Safeway permanently reduced her hourly wage in October, 2001.
Meanwhile, Pembroke filed a Workers Compensation claim in April, 1998, for her work-related injury/disease. She was represented by counsel. In September, 2001, Pembroke settled her Workers' Compensation Claim with Safeway by signing a Settlement Agreement in which her current wage was left blank. In October, 2001, Safeway again reduced Pembroke's wage to $7.55 per hour, and this time the reduction was permanent because it was based on the Worker's Compensation Settlement Agreement's provision that called for Pembroke to remain permanently assigned to the video counter. To Safeway, this provision meant that Pembroke should be recategorized under the collective bargaining agreement from a Food (Category 2) position to a Non-Food (Category 2) position. Thereafter, in late 2001, Pembroke received a fully executed copy of her Settlement Agreement, wherein her current wage was listed as $7.55 per hour.
About one year later, on October 22, 2002, Pembroke filed a complaint with the Montana Human Rights Bureau ("HRB"). She asserted that Safeway retaliated against her for filing her worker's compensation claim, but this claim was not investigated by the HRB because the claim arose before the 180-day pre-filing investigation period. Pembroke also asserted that Safeway discriminated against her because of her injury/illness (spastic torticollis) by lowering her wage, reducing her hours, giving hours to less senior employees, failing to give her lunch breaks, giving her low performance evaluations, and denying her assistance when she worked at the video counter. The Human Rights Bureau noted that the video department position was an accommodation to Plaintiff's injury/illness and also noted that under the EEOC's Technical Assistance Manual and ADA Compliance Guide, when an employer reassigns an individual as an accommodation and there is no vacant, equivalent position available, the employer may reduce the individual's salary to the appropriate salary of a lower-graded position. The Human Rights Bureau explained that Pembroke's wage was not permanently reduced until she was permanently reassigned to the lower-graded position in the video department. On August 20, 2003, the Human Rights Bureau dismissed Pembroke's claims and issued a Notice of Right to File Civil Action in District Court.
Finally, Safeway offered Pembroke a higher-paying position working in its fuel island, but Pembroke declined the offer due to the fact that the position was non-union. Pembroke has noted that she would like to work in the Floral Department at Safeway, but Safeway points out in its summary judgment papers that the same Non-Foods (Category 2) wage of $7.55 per hour (as of 2001) applies to Floral Department positions as well.
In her 2004 deposition, Pembroke acknowledged that her condition has gotten "a lot better" (APP.008:6-9) in the five years after quitting work as a grocery checker. She notes that she is walking better, able to pour milk better, regained her peripheral vision, and can cook, drive a car, bathe herself, brush her teeth, and care for her children. (APP.013:2-014:25.) Pembroke agrees that she is not medically fit to perform the job duties of grocery checker. (App.011:12-25.) Pembroke agrees that she is medically fit to perform the job duties of the video counter. (APP.012:17-25).
II. LEGAL ANALYSIS.
A. Summary Judgment Standard.
Rule 56©) of the Federal Rules of Civil Procedure states that summary judgment "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 judgment as a matter of law." Fed.R.Civ.P. 56©). Material facts are defined as those facts that could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes are genuine if sufficient evidence exists to allow a reasonable jury to return a verdict in favor of the nonmoving party. See id. In determining whether disputes are genuine, however, the Court must not weigh evidence. See id at 255. Rather, the nonmoving party's evidence is taken as true, and "all justifiable inferences must be drawn in [the nonmovant's] favor. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).
It is the moving party's responsibility to inform the district court of the reasons for its motion and to identify pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that the moving party believes demonstrate the lack of a genuine issue of material fact. See Celotex Corp. v. Catrett, 466 U.S. 317, 323 (1986). On issues where the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court that there is a lack of evidence to support the nonmoving party's position. See id. at 325.
The nonmoving party, when faced with a properly supported motion for summary judgment, "may not rest upon the mere allegations or denials of [that] party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Liberty Lobby, 477 U.S. at 250. However, the nonmoving party need not produce admissible evidence in order to avoid a summary judgment. See Celotex, 477 U.S. at 324. Nor need the nonmoving party prove conclusively that the issue will be concluded in its favor. See Liberty Lobby, 477 U.S. at 248-49. To proceed to the trier of fact, all that the nonmoving party need produce is sufficient evidence to assert a differing version of the truth at trial. See id.
B. Disability Discrimination Under the ADA.
The three-step burden-shifting test set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), follows:
(1) Plaintiff must present a prima facie case of discrimination by demonstrating that she is a qualified individual with a disability who suffered an adverse employment action because of her disability;
(2) Defendant must articulate a legitimate nondiscriminatory reason for its employment decision;
and
(3) Plaintiff must present some substantial factual evidence from which it could be inferred that the reason proffered is false and a pretext for illegal discrimination.See McDonnell-Douglas, 411 U.S. at 804; Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1090 (9th Cir. 2002); Collins v. Longview Fibre Company, 63 F.3d 828, 834 (9th Cir. 1995) (substantial factual evidence required to raise inference of pretext).
The definition of disability under the ADA is
"(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
©) being regarded as having such an impairment."
42 U.S.C. § 12102(2) (2003).
C. Discrimination Claim as to Reduction in Wage.
Reassignment to a vacant position can be a reasonable accommodation to permit an individual to retain employment. 42 U.S.C. § 12111(9) (B). Federal regulation provides that when no position of equal pay is available, an employer may provide an accommodation to an impaired employee by reassigning the employee to a lower-paying position and by paying the reassigned employee the lower wage. 29 C.F.R. § 1630.2(o) App.
III. DISCUSSION.
A. Disability Based on Substantial Limitations in Major Life Activities.
In this case, Defendant argues that Plaintiff is not disabled because her impairment does not substantially limit her in one or more of her major life activities. Plaintiff has not performed the job of grocery checker in seven years and her injury/illness has improved greatly during that period. In April 1998, Pembroke required ten to fifteen minutes just to get out of bed, and walking was difficult. She has not worked as a grocery checker (for the most part) since April 1998. Beginning in mid-2002, Pembroke received Botox injections to relax her neck muscles, and this continuing treatment and the absence of grocery checking duties has made her condition much better by 2004. Although Plaintiff was always able to care for herself, walk, see, hear, speak, breathe, work, see Fraser, 342 F.3d at 1039 (quoting 45 C.F.R. § 84.3 (j) (2) (ii), citing 29 C.F.R. § 1630.2(I)), and sleep, see Head v. Glacier Northwest Inc., 413 F.3d 1053 (9th Cir. 2005), her capacity to perform all these major life activities has improved through the course of the past seven years. To support her claim that she is disabled under the ADA, Pembroke points to (1) her self-reported physical symptoms in April 1998 prior to quitting checking groceries, her continuing self-reports to her doctors until her deposition in 2004, when she stated that she was much better, and her self-report of symptoms in her 2005 Declaration, (2) a 2003 HRB investigator's finding that she was disabled (at some point) under the ADA, and (3) a 2003 statement by her treating physician, Dr. Shepard, that at that time she was substantially limited by her condition.
The ADA requirement is that the impairment must substantially limit one or more of Pembroke's major life activities." See 42 U.S.C. § 12102(2). This means that "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002).
Acknowledging her own testimony in 2004 that her condition had improved, Plaintiff now declares in 2005, nevertheless, that
I am still significantly restricted as to the manner and duration under which I can perform major life activities such as cooking, seeing, driving, sleeping, personal hygiene care and house cleaning, as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
Declaration of Kristi Pembroke, ¶ 21. Pembroke supports this declaration by referring the Court to her treating physicians' earlier statements regarding her limitations:
• Dr. Shepard's 2003 treatment notes state that she had to turn sideways to see the stove when cooking and she experienced pain when she turned her head when driving. (However, Pembroke has never claimed that she cannot cook or drive.)
• she cannot lift anything over 20 1bs, as verified by her treating physician.
• Dr. Khalqi's 2002 treatment notes state that she cannot sleep a full night because of pain.
Although Plaintiff's testimony alone may suffice to establish a genuine issue of material fact, see McAlindin v. County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999), and comparative or medical evidence at the summary judgment stage is not required, see Glacier Northwest, Inc., 413 F.3d 1059, Pembroke's conclusory declarations lack sufficient detail to such a degree that they do not convey the existence of an impairment under the ADA. See FTC v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (Conclusory declarations are insufficient to raise a question of material fact, and to survive summary judgment, an affidavit must contain sufficient detail). Pembroke's conclusory declarations of her "significant restriction" in major life activities are insufficient to raise a question of material fact because they lack detail and because they do not describe restrictions that prevent or severely restrict major life activities.
The Court is left with the definite impression that although Pembroke's impairment was probably so severe in April 1998 that it did qualify as a disability under the ADA at that time, Pembroke's impairment is no longer so severe as to qualify as a disability. Although Pembroke's treating physician's notes refer to a substantial limitation in major life activity, the limitations noted do not rise to a level that they prevent or severely restrict her from performing major life activities. Certainly, at any relevant time period other than April 1998, Pembroke fails to present with adequate specificity the details of her limitation that show that she is prevented or severely restricted from "cooking, seeing, driving, sleeping, personal hygiene care and house cleaning."
Cf. Fraser v. Goodale, 342 F.3d 1032, 1043 (9th Cir. 2003) (being unable to think or communicate 3 times in 5 months due to insulin reaction is not a substantial limitation); Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000) (engineer with tendonitis did not establish genuine issue as to substantial limitation where he acknowledged that he could dress and feed himself, do household chores, drive, write, and use computer); Mendoza v. Borden, 158 F.3d 1171 (11th Cir. 1998) (being unable to lift more than 7 pounds not a disability under ADA when employee can perform a broad range or class of jobs); Ray v. Glidden, 85 F.3d 227 (5th Cir. 1996) (being unable to lift more than 10 pounds not a substantial limitation in major life activities of lifting and reaching); Wynn v. Whitney, 220 F.Supp.2d 582 (M.D. 2002) (employee with multiple sclerosis not disabled under ADA when employee could perform broad range of jobs and moderate restrictions on ability to walk and lift did not amount to substantial limitation); Ponlit v. Town of Fairfield, 226 F.Supp.2d 233 (D.C. Me 2002) (plaintiff not disabled despite diabetes and bipolar disorder which affected sleeping because plaintiff only described inability to sleep in generalities and did not compare his inability to sleep with that of average population); Beason v. United Techs. Corp., 213 F.Supp.2d 103 (D.C. Conn. 2002) (employee job restriction of no standing for more than 2 hours does not substantially limit major life activity of standing); Rosa v. Brink's Inc., 103 F.Supp.2d 287 (S.D.N.Y. 2000) (employee with work-related back injury not substantially limited in any major life activity under ADA even though unable to clean house properly, unable to walk or sit or stand for long periods without some undefined pain, or to engage in biking, scuba diving, camping, hiking, or riding horses); Penchishen v. Stroh Brewery Co., 932 F.Supp. 671, aff'd 116 F.3d 469 (3rd Cir.), cert. denied, 522 U.S. 868 (1997) (no disability under ADA where individual with impaired ankle could walk and climb stairs slowly).
Even during the 1998-2003 time frame, prior to the time she got better, we find that Pembroke walks, drives, bathes, eats, breathes, sleeps, cooks, cares for herself and her children, cleans her house, and works. True, some of these activities are sometimes difficult for her, but the point is that she is neither prevented from performing these major life activities nor severely restricted from performing these major life activities. Pembroke has provided no detail from which the Court could conclude that she has been severely restricted from performing any of her major life activities. The fact is that she does perform them all. By the time of her deposition in 2004, it appears quite clearly that Pembroke is no longer disabled under the ADA.
When Pembroke was at least arguably disabled under the ADA in April 1998, Safeway provided Pembroke with a reasonable accommodation by reassigning her to the video counter, a position which she could perform without much if any difficulty. Thus, Safeway acted in compliance with the ADA. In the months and years that followed April 1998, as Pembroke recovered from and received treatments for her grocery checking injury, Pembroke improved to a point of non-disability. Because Pembroke is so vague in her descriptions of the limitations on her major life activities throughout the years 1998-2004, it is difficult to say just when this occurred. Pembroke has simply failed to present a prima facie claim of a disability existing after she left the grocery checking job and recovered moderately from her injury/illness.
B. Adverse Employment Action by Wage Reduction.
However, assuming arguendo that Pembroke was disabled under the ADA at the time of the adverse employment action by wage reduction in October, 2001, the Court next addresses whether Pembroke has presented a prima facie claim of employment discrimination and finds that she does. However, Safeway proffers a legitimate, non-discriminatory explanation for the wage reduction, namely, that once Pembroke was permanently assigned to the video counter, the collective bargaining agreement dictated that her salary be assigned according to that position and not according to her previous position. Safeway buttresses this legitimate, non-discriminatory explanation with the federal regulation that explicitly allows employers to reduce the wage of an employee receiving an accommodation in the form of a lower-graded position. 29 C.F.R. § 1630.2(o) App.
Pembroke was understandably suspicious of the manner in which Safeway reduced her wage in June 2001, then restored it, then reduced again in October 2001. Pembroke also thinks that she was tricked into signing a Worker's Compensation Settlement Agreement, when after she signed the Agreement and unbeknownst to her, her new reduced wage was inserted into the Agreement by Safeway. However, our interest here is not whether the Worker's Compensation Settlement Agreement was fairly executed but whether Safeway was on sound legal footing in reducing Pembroke's wage after her permanent assignment to the video counter and reclassification under the collective bargaining agreement. After all, the Worker's Compensation Settlement Agreement did not set Pembroke's wage. Safeway set Pembroke's wage, and I find it was correctly set under the law. Thus, although Pembroke makes a prima facie claim for employment discrimination, Safeway articulates a legitimate, non-discriminatory reason supporting the adverse employment action. Pembroke fails to bring forth evidence from which the Court could infer that Safeway's reason was false and merely a pretext for discrimination.
C. Miscellaneous Adverse Employment Actions.
Pembroke also claims that Safeway has discriminated against her because of her disability by not giving her scheduled lunch breaks and 15 minute breaks every 4 hours worked. (Pembroke's collective bargaining agreement guarantees her lunch breaks and 15 minute breaks.) She asserts that over 45 times (over some unspecified time period) she has not been allowed to take a lunch break. Pl.'s Statement Genuine Issues, ¶ 16.
In support of this claim, Plaintiff quotes a 2002 written statement by then-manager Brian Thomas, which states that "no lunch scheduling works better for the store." Declaration of plaintiff, Exhibit 6. However, the 2002 statement by Brian Thomas, Safeway manager, is a response to Plaintiff's note, which states that she is scheduled to work from 11-4 p.m. on Sunday and would like to work 4-8 p.m. as well, requesting further that she be regularly scheduled at the video counter for 8 hour shifts on Saturdays and Sundays. See, Declaration, Ex. 6.
The full response from Brian Thomas is "Sorry. That would require a lunch in the video department. Due to reduced staffing I can not cover the lunch shift without pulling from elsewhere in the store. I am afraid that the no lunch scheduling works better for the store. BT" Declaration, Exhibit 6. The implication here is that Safeway declined to schedule Pembroke for eight hour shifts at the video counter on Saturday and Sunday to avoid having to staff the counter during Pembroke's lunch break. Therefore, the store manager was not denying Pembroke regularly scheduled meal periods, but was denying her 8 hour shifts on Saturdays and Sundays because that would necessitate coverage of the lunch hour, which the manager apparently thought was not possible. The document fails to support Pembroke's contention that she was denied lunch breaks on 45 occasions.
In light of Pembroke's failure to make her prima facie claim of disability and her failure to make any credible claim that these miscellaneous adverse employment actions occurred and were imposed because of her alleged disability, the Court concludes that these discrimination claims must fail.
IV. CONCLUSION.
This Court concludes that Plaintiff is not currently disabled under the ADA and has not been so disabled since 1998. The Court further concludes that Safeway's decision to reduce Plaintiff's wage upon her permanent reassignment to a lower-graded position was not an adverse employment action within the meaning of the ADA. Plaintiff's other miscellaneous discrimination claims fail because Plaintiff has not made out a prima facie claim either as to disability or as to the causal connection between her alleged disability and the miscellaneous employment actions of which she complains.
Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED. Plaintiff's Complaint is DISMISSED. Let Judgment enter.
The Clerk is directed forthwith to notify counsel of entry of this order.