Opinion
Civil No. 99-1450 (DWF/SRN).
June 13, 2001.
Lawrence R. Altman, Esq., Altman Law Office, 1660 Foshay Tower, 821 Marquette Avenue, Minneapolis, MN 55402-2919, appeared on behalf of Plaintiff.
Nicholas L. DiVita, Esq., Brandt, Williams Stueve, 2 Emanuel Cleaver II Boulevard, Suite 500, Kansas City, MO 64112 and Kathryn H. Carlson, Esq., Miller Hipp, 111 Third Avenue South, Suite 240, Minneapolis, MN 55401, appeared on behalf of Defendant.
MEMORANDUM OPINION AND ORDER Introduction
The above-entitled matter came on for hearing before the undersigned United States District Judge on March 2, 2001, pursuant to Defendant's Motion for Summary Judgment, Defendant's Motion to Strike Certain Affidavits, and Plaintiff's Motion for Leave to Amend the Complaint. In the Complaint, Plaintiff alleges illegal discrimination based on race and religion in violation of the Minnesota Human Rights Act (MHRA) and Title VII; illegal discrimination in violation of the Americans with Disabilities Act (ADA) and the MHRA; and retaliation in violation of the ADA and the MHRA. For the reasons set forth below, Defendant's motion for summary judgment is granted in part and denied in part; Plaintiff's motion for leave to amend is denied; and Defendant's motion to strike is denied.
Background
Plaintiff George Philip ("Philip") is an African-American man of the Islamic faith. He has been employed by Defendant Ford Motor Company ("Ford") at its Twin Cities Assembly Plant since April of 1988.
Philip suffers from several medical conditions, including bilateral carpal tunnel syndrome and a misalignment of the vertebrae (which results in spinal cord impingement in his lower back). Because of these medical conditions, Philip's physicians have imposed a number of work restrictions relating to his ability to perform repetitive tasks, to use vibrating tools, to engage in even moderate repeated lifting, and to remain in a fixed position for an extended period of time.
Philip describes a number of incidents involving overt racial epithets, directed at himself and at other African-American employees, but all of these events took place prior to 1997 (a date of legal significance). Philip further describes a number of incidents in which supervisors and co-workers made disparaging remarks about Philip's Islamic faith, calling him a "religious fanatic" and mocking his prayer habits; again, however, all of these events took place prior to 1997.
In 1996, Philip was placed on the "twenty-five mile driver inspector" job; the assignment was made to accommodate Philip's medical restrictions. In February of 1998, the job was reclassified from temporary to permanent. Philip requested that he be grandfathered into the position (allowed to remain in the position, without regard to his seniority, without having the position open to bids from other union members); Philip asserts that at least two similarly situated white employees were grandfathered into other jobs. Philip's request was denied, and he lost the twenty-five mile driver inspector job. Since that time, Philip has generally not been able to work at Ford; although Philip claims there have been openings for positions which meet his medical restrictions, Philip alleges that Ford has unreasonably refused to place him in those positions.
This job apparently involves driving newly assembled vehicles along a twenty-five mile course to check the performance of the vehicles.
After instigating this litigation, Philip alleges that Ford unreasonably scheduled two adverse medical exams for him with two different doctors. Philip objected to the second exam, but offered to go back to the original doctor a second time. Philip then cancelled that appointment. Ford was apparently dilatory in setting up another appointment. Philip also alleges that, after commencing this litigation, he was instructed not to call Human Resources to inquire about job openings as frequently as he had been calling. Philip asserts that he was told to call to check for work only twice a month.
Discussion
1. Motion for Leave to Amend
On February 16, 2001, Philip filed a motion for leave to amend his complaint to assert a claim under 42 U.S.C. § 1981. Philip asserts that Rule 15(a) of the Federal Rules of Civil Procedure, which states that "leave [to amend] shall be freely given when justice so requires," mandates that the Court should grant leave to amend absent a showing of actual prejudice to the Defendant. The Court cannot agree.
Presumably, Philip made this motion to take advantage of the longer statute of limitations afforded by 42 U.S.C. § 1981. Philip's reason for making the motion is irrelevant.
This case was filed on September 2, 1999. On December 21, 1999, the Court entered a Rule 16 scheduling order setting the deadline for moving to amend the complaint for January 20, 2000. More than a year after that deadline, and several months after the close of briefing on Ford's motion for summary judgment, Philip now brings a motion to amend the complaint-to add a cause of action which should have been apparent to Philip from the outset of the litigation.
In light of the scheduling order, the Court would not grant leave to amend absent a showing of good cause why Philip should be excused from the deadlines imposed by that scheduling order. See In re Milk Products Antitrust Litigation, 195 F.3d 430, 437 (8th Cir. 1999), cert. denied sub nom., Rainy Lake One Stop, Inc. v. Marigold Foods, Inc., 529 U.S. 1038, 120 S.Ct. 1534 (2000). "If we considered only Rule 15(a) without regard to Rule 16(b), we would render scheduling orders meaningless and effectively would read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure." Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Philip has not offered any explanation for his unseemly delay in bringing this motion for leave to amend. Accordingly, the motion is denied.
2. Motion to Strike
Ford has moved the Court to strike Exhibits 1, 2, 3, 5, 7, and 13 to the Affidavit of Lawrence R. Altman, filed in conjunction with Philip's opposition to Ford's motion for summary judgment. Although these exhibits, or individual portions thereof, may not be admissible at trial (absent a showing of proper foundation and relevance), the Court declines to strike these exhibits in their entirety for purposes of this motion for summary judgment.
3. Motion for Summary Judgment
a. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Fed.R.Civ.P. 1. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.
b. Plaintiff's ADA Claim
With respect to Philip's claim of disability discrimination, Ford's sole contention on this motion for summary judgment is that Philip is not disabled within the meaning of the ADA and the MHRA. A person is disabled within the meaning of the ADA if that person has a physical or mental impairment that substantially limits a major life activity. See 42 U.S.C. § 12102(2)(A). Philip has been diagnosed with severe bilateral carpel tunnel syndrome, spondylolisthesis of the fifth lumbar and first sacral vertebrae, and degenerative joint disease of the lower back. Although the Complaint does not specify the major life activity for which Philip experiences a substantial limitation, Philip argues in response to this motion that he is substantially limited in the life activities of gripping, lifting, reaching, standing, sitting, and walking. Dr. John Robrock, in his affidavit and the attached report, indicates that Philip's lower back problems justify, if not require, a 10-pound lifting restriction. Dr. Paul Donahue, in his affidavit, supports a 10- to 25-pound lifting restriction and indicates that Philip has a grip strength of approximately 50 pounds (compared to approximately 120 pounds for someone of Philip's age and size).
An impairment which prevents an individual from performing a major life activity, or which limits the duration, extent, or manner in which that life activity is performed relative to the general population, can be considered a disability. See Fjellstad v. Pizza Hut of America, Inc., 188 F.3d 944, 948 (8th Cir. 1999). "Major life activities" include lifting. Id. Presumably, then, major life activities may include gripping, as the ability to grasp objects for purposes of manipulating them implicates a wide variety of daily activities. See, e.g., Williams v. Toyota Motor Mfg., Ky., Inc., 224 F.3d 840 (6th Cir. 2000), cert. granted, 121 S.Ct. 1600 (Apr. 16, 2001). A reasonable fact-finder could conclude that Philip's physical limitations constitute a substantial limitation in one or both of these major life activities.
c. Plaintiff's Race and Religion Discrimination Claims
Ford argues that Philip's claims for race and religion discrimination are barred by the statute of limitations because he fails to allege any incidents of discrimination occurring after either July 22, 1997 (the cut-off date for his Title VII claims) or May 18, 1997 (the cut-off date for his MHRA claims). With respect to Philip's claim for religious discrimination, the Court agrees; every instance of alleged religious intolerance occurred in 1996 or earlier, and Philip has demonstrated absolutely no connection between any later adverse employment action and Philip's religion. Summary judgment on the religion discrimination claims is appropriate.
Philip's race discrimination claims pose a closer question. Most of the incidents of overt racial harassment-name calling, for example-occurred outside of the limitations period, and the more recent allegedly discriminatory actions are so qualitatively different from the earlier alleged incidents that the Court cannot conclude that they were all part of the same, on-going "continuing violation." However, Philip has alleged a few acts of alleged racial discrimination within the statutory time period; specifically Philip has alleged that Ford's refusal to grandfather him into a position which accommodated his physical restrictions and refusal to give him another job which accommodated his physical restrictions were motivated by his race. Philip's contention is bolstered by the affidavit of Dr. Zubeida Khan in which Dr. Khan testifies to a general lack of consideration of the physical limitations of minority employees; while Dr. Khan does not testify specifically about Philip, her testimony provides a context in which a reasonable fact-finder could infer discriminatory animus with respect to Ford's treatment of Philip. Philip's contention is further bolstered by the affidavit of Nancy Schillinger, a Committeeperson for the United Auto Workers, who testified that similarly situated white employees were grandfathered into reclassified positions.
Obviously, Ms. Schillinger's statement that she "believe[s] that George Philip had difficulties with the twenty-five mile driver inspector job and the wrap job because he is black and because he stands up for his rights" is inadmissible. Moreover, her affidavit is somewhat sparse on foundation. However, if appropriate foundation is laid, Ms. Schillinger should be able to testify regarding disparate treatment for similarly situated white employees.
Philip's earlier allegations of racial discrimination, as the Court noted, are too dissimilar from the timely allegations to be construed as part of a continuing violation, and therefore they are not independently actionable. However, the Court reserves the question of whether evidence of those earlier allegations may be admissible as "background" to support Philip's contention of racial animus.
d. Plaintiff's Retaliation Claims
Ford alleges that Philip has failed to make out a prima facie case for retaliation under the ADA or the MHRA because he has failed to offer evidence of any adverse employment action purportedly related to some protected activity. The Court agrees. Philip argues that the second adverse medical exam somehow constitutes an adverse employment action; scheduling an adverse medical exam is simply not an adverse employment action. Philip further argues that he was somehow punished for refusing to submit to this second adverse medical exam; he does not, however, explain how he was punished, what specific negative consequence he suffered. Finally, Philip argues that he was denied placement on a number of jobs which met his physical limitations. Again, however, he has failed to offer any evidence, even the barest circumstance, to suggest a causal connection between this litigation and the denial of those positions; Philip contends that Ford had been refusing him access to the same job all along, that that refusal, in fact, prompted the litigation. There is nothing to suggest that Ford's behavior towards Philip changed as a result of the litigation, but rather only that the litigation did nothing to improve that behavior.
For the reasons stated, IT IS HEREBY ORDERED:
1. Plaintiff's Motion to Amend the Complaint (Doc. No. 60) is DENIED;
2. Defendant's Motion to Strike Exhibits (Doc. No. 58) is DENIED;
3. Defendant's Motion for Summary Judgment (Doc. No. 53) is GRANTED IN PART and DENIED IN PART as follows:
a. Defendant's motion is GRANTED as to Plaintiff's claims for religious discrimination and retaliation (Counts III, IV, VII and VIII);
b. Defendant's motion is DENIED as to Plaintiff's claims for racial and disability discrimination (Counts I, II, V, and VI).