Opinion
Civil Action No. 3:98CV-191-H
September 10, 1999.
MEMORANDUM OPINION
Defendant has moved for summary judgment on Plaintiff's claims of disability discrimination under the Americans with Disabilities Act ("ADA") and her claims of retaliatory discharge.
Plaintiff has moved to voluntarily dismiss her claims under Title VII, for violations of the Occupational Safety and Health Act, and for Defendant's alleged failure to enforce the City of Louisville's "no smoking" policies. The Court will, therefore, dismiss these claims in the accompanying order.
Plaintiff is a City of Louisville firefighter. The essence of her claim under the ADA is that she has a disability, an allergic reaction to polyester which causes her uncomfortable lesions and sores. She says that since 1991 Defendant has failed to accommodate her with loose-fitting or cotton attire. To present a prima facie case of failure to accommodate, Plaintiff must produce evidence that (1) she is disabled within the meaning of the ADA; (2) she is qualified to perform the essential functions of her job with or without a reasonable accommodation; and (3) she was denied a reasonable accommodation. Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996). After reviewing all the evidence, the Court does not believe that there is sufficient evidence from which a reasonable jury could believe that Plaintiff is either disabled within the meaning of the ADA or that she has been denied a reasonable accommodation.
The ADA provides a number of avenues for showing disability. Plaintiff may demonstrate (1) a physical impairment that substantially eliminates one or more of the major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff has not alleged that she is regarded as having a physical impairment, and she has no medical evidence that she is allergic to polyester, as she claims. The Court has thoroughly reviewed Dr. Scheen's deposition. He states that Plaintiff's suffers from folliculitis caused by tight-fitting clothing that traps heat and moisture against the skin. At the time Dr. Scheen diagnosed the condition, he had not concluded that it was a permanent one. Plaintiff's counsel questioned Dr. Scheen about the polyester allergic reaction. Dr. Scheen did not recall whether such a reaction had anything to do with his diagnosis but stated that polyester is a very rare cause of an allergic dermatitis. Dr. Scheen had no opinion whether Plaintiff was suffering from such a condition. In fact, Plaintiff has no medical evidence to suggest that she was affected by a permanent condition as opposed to a temporary one. She offers no medical evidence that she experienced any difficulties from her initial flare up in 1991 until 1997. No reasonable jury could find a permanent disability from the evidence.
It appears that the only avenue for Plaintiff to prove a disability is by showing that she is substantially limited in a major life activity. To determine that an individual is so limited, the Sixth Circuit has said that Courts should consider (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. Penny v. United Parcel Service, 128 F.3d 408, 414 (6th Cir. 1997). Among other things, an individual must prove that the disabling condition limits the "ability to perform either a class of jobs or a broad range of jobs." McKay v. Toyota Mfg., USA, Inc., 110 F.3d 369, 371 (6th Cir. 1997). In this case, Plaintiff has presented no evidence that her condition is permanent. She has presented no medical evidence as to the severity or even the medical nature of the impairment. She has presented no medical evidence of its permanent consequences, if any. Even assuming that Plaintiff has a condition which is permanent, it seems beyond debate that most jobs and major life activities are not inhibited by an aversion to polyester. Plaintiff is currently working. Consequently, the Court does not believe that any reasonable jury could find that Plaintiff is affected by a disability within the meaning of the ADA.
Even if the Court were to assume that Plaintiff is affected by a disability, the Court finds no evidence that Defendant has failed to accommodate her. Before 1997, the Court finds no evidence that Plaintiff requested anything other than temporary accommodations which Defendant granted. Some of these accommodations were granted after formal requests, others were allowed after more informal requests. The Court finds no facts from which a reasonable jury could believe otherwise.
Furthermore, prior to this lawsuit, Defendant had agreed to the permanent accommodation suggested by Plaintiff. On September 23, 1997, Plaintiff submitted a request for a thirty-day accommodation to wear sweat pants. Defendant granted that request. In doing so, Defendant requested that Plaintiff submit herself for re-evaluation as to the accommodation at the end of the thirty-day period. Plaintiff declined to appear for the re-evaluation. Instead, by memorandum dated November 22, 1997, Plaintiff suggested an alternative accommodation, a cotton uniform. A little over a week later, on December 1, 1997, Defendant set in motion a process for approving such an accommodation, allowing Plaintiff until January 15, 1998, in which to submit a sample uniform. On February 11, 1998, Plaintiff submitted a sample uniform for approval. On February 25, 1998, Defendant approved the cotton uniform for Plaintiff's daily attire. The Court finds no material dispute as to these facts. The Court finds nothing in the evidence during the time period from Plaintiff's request for accommodation in the fall of 1997 until the granting of the accommodation from which a reasonable jury could find a failure to accommodate under the ADA.
Plaintiff also makes a claim for retaliatory discharge. To support such a claim, Plaintiff must demonstrate that there is a causal link between her protected activity, claiming disability, and the adverse action of her employer. EEOC v. Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997). In this instance, Defendant terminated Plaintiff on January 19, 1999. Thus her termination occurred over a year after Plaintiff first filed her ADA claims and over ten months after the filing of this lawsuit. The timing of these events is not sufficiently close in the Court's view to raise an inference that Plaintiff's termination was connected to her raising disability claims. Moreover, Defendant has put forth a number of legitimate reasons supporting its termination of Plaintiff. Plaintiff has come forward with no evidence to suggest that these reasons are a mere pretext. Thus, under the circumstances, the Court finds no evidence in the record from which a reasonable jury could believe that the real reason for Plaintiff's termination was in some way related to her claims of disability discrimination ten months to a year before.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
Defendant has moved for summary judgment as to all Plaintiff's claims in this case. Plaintiff has abandoned a number of her claims and, for the reasons set forth in the accompanying Memorandum, the Court is dismissing the remainder. Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that because Plaintiff has voluntarily abandoned her claims for sex discrimination, sexual harassment, violations of OSHA and for violations of the City's "no-smoking" policy, the Court DISMISSES those claims without prejudice.
IT IS FURTHER ORDERED that Defendant's motion for summary judgment as to Plaintiff's claims for disability discrimination and for retaliatory discharge are SUSTAINED and those claims are DISMISSED WITH PREJUDICE.
This is a final and appealable order.