Opinion
Case No.:99-76235.
August 29, 2000.
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Richard A. Samul filed this action against his employer, DaimlerChrysler Corporation ("DC"), and International Union, UAW ("UAW"), alleging that they discriminated against him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Currently before the Court are motions for summary judgment filed by Defendant UAW (Docket Entry #14) and Defendant DaimlerChrysler (Docket Entry #16). The Court heard oral argument on these motions on August 22, 2000. Upon consideration of the motions, the submissions of the parties, and the applicable law, the Court grants summary judgment for both defendants.
I. BACKGROUND
Plaintiff was hired by DC on June 26, 1972 as a mechanic for the engineering department in product testing and development. (DC Br. Ex. 1.) He also joined Local Union 412, UAW. (Compl. ¶ 12; Samul Dep. at 10-11.) Plaintiff's job duties, which involved mainly mechanical work, included complying with the work orders or verbal requests of the engineers. (Samul Dep. at 7, 9-10). As Plaintiff was a union member, the terms of his employment were governed by the collective bargaining agreement ("CBA") between DC and the UAW. ( Id. at 13.)
In 1986 Plaintiff was diagnosed with a congenital heart valve defect. (Compl. ¶ 13.) On January 26, 1995, Plaintiff underwent an aortic valve replacement and a coronary artery bypass to correct the defect. (Compl. ¶ 14; Samul Dep. at 93.) Since the surgery, Plaintiff has been prescribed Coumadin, an anti-coagulant, or blood thinner. (Samul Dep. at 171.) Three months after his heart surgery, Plaintiff returned to work without any medical restrictions. (Compl. ¶ 15; Samul Dep. at 177-78.) Plaintiff admits that since his heart surgery, he has not been physically impaired in any fashion in terms of what he can do at either his job or housework, including mowing his lawn. ( Id. at 177-78.)
In 1996, Plaintiff transferred from DC's Highland Park facility to DC's new facility in Auburn Hills, Michigan. ( Id. at 84.) At that time, Plaintiff's immediate supervisor on the afternoon shift was Dennis D'Alessandro, who, in turn, reported to John Rilly, the department manager.
In 1997, DC was in the process of constructing a major expansion at the Auburn Hills facility Powertrain Test Center. The $670 million expansion project involved numerous outside contractors to install new engine and transmission testing equipment. (Rilly Dep. at 20-22.) At this time, a new temporary assignment was created to "commission" the new testing equipment. In this context, "commissioning" meant running a variety of performance and durability tests on the new equipment to certify," that the new equipment would do what it was designed to do. (Samul Dep. at 116-17.) Nine employees were to be selected for the commission assignments. (Rilly Dep. at 50.) The workers selected for these commissioning positions would be under the supervision of the construction contractor. (DC Ex. 2.) The workers were also informed that they would be working at a grueling pace with substantial overtime, whatever was required to accomplish the equipment testing without holding up the construction workers. ( Id.; Samul Dep. at 126-27.) It was anticipated that the assignment would be completed within two years, after which the commission workers would return to their prior job assignments. (Samul Dep. at 127-28, 130.)
In order to facilitate the selection process, Rilly posted a sign-up sheet on the department bulletin board to find out how many employees within his department were interested in the temporary assignments. ( Id. at 123.) In September 1997, twenty-four employees, including Plaintiff, expressed their interest and signed up. (Compl. ¶ 17, Samul Dep. at 126, DC Br. Ex. 4.) Rilly and James Wyrembelski interviewed Plaintiff for the commissioning position. (Samul Dep. at 32-33.) Plaintiff was not selected for the temporary job.
Rilly maintains that while Plaintiff was more than adequate in terms of his skill level, he was not selected because he lacked extensive engine performance test experience and was not considered to be highly motivated since his work was accomplished more slowly in comparison to the other mechanics. (Rilly Dep. at 78; DC. Br. Ex. 5.)
Plaintiff claims that he was not selected for the commissioning position due to his heart condition and the Coumadin he was required to take. During his interview with Rilly, Plaintiff mentioned these conditions. (Samul Dep. at 34.) Rilly was familiar with the drug Coumadin since his father had taken it for a number of years. (Rilly Dep. at 30.)
Shortly after the interview, D'Alessandro allegedly informed Plaintiff that Rilly told him (D'Alessandro) that Plaintiff was not getting the temporary commissioning position because of his "bad heart." (Samul Dep. at 34.) Three to four weeks later, at Plaintiff's request, D'Alessandro spoke with Rilly again to inquire why Plaintiff did not get the position. Rilly allegedly told D'Alessandro that Plaintiff was a "bleeder," and that Rilly did not want to be responsible if something happened to him. (Samul Dep. at 35; D'Alessandro Aff. ¶ 4.) Plaintiff contends that it is common knowledge that people who are on Coumadin are susceptible to bleed profusely, even in a case of slight injury, cut or bruise. (Samul Dep. at 171-74.) Plaintiff asserts that Rilly regarded him as disabled, and refused him the temporary commissioning position on that basis.
After being rejected for the commissioning position, Plaintiff sought representation from his union and spoke with Larry Brown, his union steward, in early October 1997. (Samul Dep. at 37.) A few days later, on October 13, 1997, Plaintiff saw Brown with the Chairman of the Bargaining Unit, Bob Cole, in the hallway and talked with them about his complaint. Cole promised to discuss Plaintiff's rejection for the position with Rilly. ( Id. at 37-38.). Cole met with Rilly to attempt to change his decision to reject Plaintiff for the commissioning position. (Samul Dep. at 41, 42.) Plaintiff met with Cole on November 4, 1997 and informed him that DC's rejection of his request for the transfer to the commissioning position was not subject to the contractual grievance procedure and, therefore, no grievance would be written on his behalf. ( Id. at 40, 42, 49, 149, 219, 220; Cole Aff. ¶ 1 (Ex. to UAW Br.).)
Plaintiff did not lodge any written complaint in the union's internal appeal procedure concerning Cole's failure to file a grievance in protest of DC's refusal to select Plaintiff for the commissioning position. (Samul Dep. at 53, 54, 79.) However, he did attempt to voice his disappointment with the union during a union meeting in early 1998. At that meeting, Plaintiff inquired as to how he could discontinue paying his union dues until he was "properly represented." (Samul Dep. at 50.) Cole informed him that the only way he could not pay dues was to quit his job because paying union dues was a condition of employment. (Cole Dep. at 28.) Plaintiff asserts that this answer caused derisive laughter from the union members at the meeting. (Samul Aff. at ¶ 7.)
While Plaintiff never filed a complaint against his union, he did initiate a complaint with DC's Diversity and Work/Family Department ("Diversity") alleging that he had been discriminated against in not receiving the commissioning position. On February 2, 1998, Plaintiff met with Alice Ward from Diversity and stated that he did not get the temporary commissioning assignment "because he told [Rilly] of his heart surgery." (DC Br. Ex. 6.) In early April, 1998, Ward contacted Plaintiff to tell him that a meeting was set for April 29, 1998 with herself, Rilly, and Plaintiff in order to resolve his complaint. (Samul Dep. at 151-52.) Plaintiff asked to have his union representative present and was told that he could. ( Id. at 152.) However, the UAW contends that union agents do not participate as representatives of union members in this process. (UAW Br. at 2 (citing Samul Dep. at 143).) When Plaintiff called back to state that his union representative would not attend the meeting, he was told to bring a friend along as a witness and to take notes for him. (Samul Dep. at 152, 154.) Plaintiff then informed Ward that he was going to get a lawyer to represent him. ( Id. at 152-54, 157-58.) Ward told Plaintiff that he had a right to pursue his claim through the legal process, but that the meeting would take place as scheduled. ( Id. at 157-58.)
DC's Diversity department investigates internal complaints of discrimination.
The April 29, 1998 meeting was canceled because Plaintiff refused to attend it. ( Id. at 156-59.) During the next three months, Ward repeatedly telephoned Plaintiff and left messages through his supervisor for Plaintiff to call her, but Plaintiff declined to do so. (Ward Dep. at 18; DC Br. Ex. 18.) Plaintiff admitted that he was non-responsive. (Samul Dep. at 153.) After receiving confirmation that her August 14, 1998 written request for Plaintiff to contact her was personally delivered by Plaintiff's supervisor and, receiving no response, Ward closed her file on this matter. (Ward Dep. at 18; DC Br. Ex. 8.)
On July 31, 1998, Plaintiff filed a charge of disability discrimination with the Equal Employment Opportunity Commission ("EEOC"), and on November 18, 1998 he obtained a right to sue letter. On February 16, 1999, Plaintiff filed this lawsuit.
This action was originally assigned to United States District Judge Barbara K. Hackett. Following her retirement, it was reassigned to the undersigned judge on January 31, 2000.
II. STANDARD OF REVIEW
The Court may properly grant a motion for summary judgment 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Blankenship v. Parke Care Centers, 123 F.3d 868, 871-72 (6th Cir. 1997), cert. denied, 522 U.S. 1110, (1998). The Court is directed to view the evidence in the light most favorable to the non-moving party and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party initially has the burden to advise the Court of the basis for the summary judgment motion and of demonstrating that the record shows no material issue of fact exists. See Celotex Corp. v. Catrett 477 U.S. 317, 323 (1982). However, "the mere existence of a scintilla of evidence" in support of the non-moving party is not sufficient; a genuine issue for trial is presented when there is sufficient "evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.III. DC's MOTION FOR SUMMARY JUDGMENT
The ADA provides in relevant part:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112(a).
In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show (1) that he is disabled within the meaning of the Act; (2) that he is otherwise qualified for the position at issue with or without a reasonable accommodation; (3) that he suffered an adverse employment action; (4) that his employer knew or had reason to know of his disability; and (5) a non-disabled person replaced him or was selected for the same position. See Plant v. Morton Int'l, Inc., 212 F.3d 929, 936 (6th Cir. 2000) (citing Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). If the plaintiff demonstrates a prima facie case, the burden shifts to the defendant to provide a non-discriminatory explanation for its actions. See id. If the defendant succeeds, then the plaintiff must come forward with evidence demonstrating that the defendant's proffered explanation is pretextual. See id. Though the burden of production shifts in this paradigm, the burden of persuasion remains at all times with the plaintiff See id.
A. Plaintiff's "Disability"
The ADA defines a "disability" as:
(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
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). The Code of Federal Regulations provide further clarification of "major life activities" and "substantially limits":
(i) Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(j) Substantially limits —
(1) The term substantially limits means:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly 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.
Plaintiff argues that his taking Coumadin is what makes him disabled and "substantially limited" as "he has to be overly cautious in whatever he does — walking jogging, exercising, working — not to slightly injure himself, as he may bleed to death, as, even a bump or bruises from a fall could cause uncontrolled bleeding." (Pl. Resp. to DC's Mot. at 7.) Based on the evidence in the record and in consideration of recent case law, Plaintiff does not appear to be disabled.
The Supreme Court recently clarified the definition of "disability" in Sutton v. United Air Lines, Inc., 527 U.S. 471, __, 119 S.Ct. 2139, 2146-47 (1999):
A "disability" exists only where an impairment "substantially limits" a major life activity, not where it "might," "could," or "would" be substantially limiting if mitigating measures were not taken. A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently "substantially limits" a major life activity. To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not "substantially limi[t]" a major life activity.
The evidence shows that Plaintiff was not substantially limited in enjoying any major life activity. With regard to his need for Coumadin and having an artificial heart valve, Plaintiff testified that this "disability" does not impair him in any way, and explained that "I am able to function in all of my duties, as I have since coming back from that surgery." (Samul Dep. at 177-78.) Specifically, Plaintiff testified that his condition has not hindered him in any way in terms of his duties at work and that he can mow the lawn and do regular housework. ( Id. at 178.) In fact, Plaintiff affirmed that his condition "in no way limits him physically in or out of work." ( Id.) Courts have found similar situations not to rise to the level of a "disability" under the ADA. See, e.g., Hoskins v. Oakland County Sheriff's Dep't, 44 F. Supp.2d 882, 889-90 (E.D. Mich. 1999) (Gadola, J.) (although plaintiff had to "just be careful with the way I do things," she was not "disabled" since there was no "substantial limitation" on a major life activity); Webber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999) (where plaintiff's heart disease required him to be more cautious about his diet, and how much he walked or climbed stairs, these were only moderate restrictions on major life activities that did not constitute a "disability" under the ADA); Bridges v. City of Bossier, 92 F.3d 329, 334 (5th Cir. 1996) (firefighter applicant rejected due to mild hemophilia; court held that jobs involving routine exposure to extreme trauma, such as firefighting, constitute a narrow range of jobs and those disqualified from holding such jobs are not disabled under the ADA).
Plaintiff's own deposition testimony confirms that he has not demonstrated any major life activity which as been significantly impacted. Accordingly, the Court finds that he does not have a "physical impairment" under the ADA.
However, although Plaintiff does not have a physical impairment, the record, viewed in the light most favoring him as the non-moving party, demonstrates that DC may have "regarded" Plaintiff as having a "physical impairment" under the ADA. 42 U.S.C. § 12102(2)(C). In Sutton, the Supreme Court explained:
There are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often "resul[t] from stereotypic assumptions not truly indicative of . . . individual ability." See 42 U.S.C. § 12101(7).Sutton, 119 S.Ct. at 2149-50.
In the case at bar, Rilly allegedly expressed that he did not want Plaintiff for the commissioning job because of Plaintiff's "bad heart," or because he was a "bleeder." However, even assuming that Plaintiff was regarded as having a disability, the there is no evidence that Plaintiff suffered any adverse employment action.
B. Adverse Employment Action
The undisputed evidence shows that the commissioning position Plaintiff sought was a temporary lateral assignment. Plaintiff testified that the duties of his current position would be similar to that of the commissioning job. (Samul Dep. at 88, 115-116; Rilly Dep. at 47.) The job was only to last two years. (Samul Dep. at 127-28, 130.) The commissioning position was the same classification and paygrade as the one he currently occupies. (Cole Aff. ¶ 1.)
More significant, Plaintiff also testified that he was better off for having not been given the commissioning position:
Q. In terms of not having been selected for the [commissioning] position, what is it that you believe you've lost?
A. Well, urn, financially, urn, I guess the hours that was promised to the people that signed up for it, um, didn't work out as planned for those people. Urn, so potentially, I may have made an equal amount of money, or possibly more, not being accepted for the job.
Q. Was there any difference in terms of your benefit levels — with whether you remained in your present position, as opposed to the new position?
* * * *
A. Oh, no difference, to my knowledge.
Q. Okay, and it's your understanding presently, that based on what took place, you probably made a little bit more money staying in your current position, correct?
A. I believe that's true, yes.
Q. Okay, were there any other work related benefits that you believe you were denied as a result of not having been selected for the position?
* * * *
A. Not that I'm aware of — privileges, no.
(Samul Dep. at 128-29) (emphasis added).
The evidence demonstrates that the position for which Plaintiff was denied was only a temporary lateral transfer, and Plaintiff did not suffer any adverse consequences in not receiving it.
In Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999), the D.C. Circuit recently reviewed whether a lateral transfer may constitute an adverse employment action in discrimination cases. After a considerable review of authority, the court announced the following rule:
The Brown court reviewed substantial authority on the issue of lateral transfers and adverse employment action. In particular, the court noted:
"The clear trend of authority," as we mentioned in [ Mungin v. Katten Muchin Zavis, 116 F.3d 1549, 1556-57 (D.C. Cir. 1997)],"is to hold that a `purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.'" Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). A survey of the relevant case law shows that the authority requiring a clear showing of adversity in employee transfer decisions is both wide and deep. See, e.g., [ Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1453-54 (11th Cir. 1998)]; Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886-87 (6th Cir. 1996); Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 135-36 (7th Cir. 1993); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382-83 (8th Cir. 1994); Flaherty v. Gas Research Institute, 31 F.3d 451, 457-58 (7th Cir. 1994); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 885-86 (7th Cir. 1989); Caussade v. Brown, 924 F. Supp. 693, 701, 704 (D.Md. 1996), aff'd without opinion, 107 F.3d 865 (4th Cir. 1997); Kauffman v. Kent State Univ., 815 F. Supp. 1077, 1083-86 (N.D.Ohio 1993); McCoy v. WGN Television, 758 F. Supp. 1231, 1236-37 (N.D.Ill. 1990); Haimovitz v. United States Dep't of Justice, 720 F. Supp. 516, 523-27 (W.D.Pa. 1989); Ferguson v. E.I. duPont de Nemours Co., 560 F. Supp. 1172, 1201 (D.Del. 1983); cf. Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995); Connell v. Bank of Boston, 924 F.2d 1169, 1178-80 (1st Cir. 1991). See generally Ernest F. Lidge III, The Meaning of Discrimination: Why Courts Have Erred in Requiring Employment Discrimination Plaintiffs to Prove that the Employer's Action was Materially Adverse or Ultimate, 47 U. KAN. L.REV. 333, 336-38 n. 22, 341 (1999).Brown, 199 F.3d at 455-56 (footnote omitted).
a plaintiff who is made to undertake or who is denied a lateral transfer — that is, one in which she suffers no diminution in pay or benefits — does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm. Mere idiosyncracies of personal preference are not sufficient to state an injury.Brown, 199 F.3d at 457.
This language comports with Sixth Circuit authority. See, Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886-87 (6th Cir. 1996) (plaintiff did not suffer a materially adverse employment action when transferred to a new position since she enjoyed the same or a greater rate of pay and benefits, and her duties were not materially modified). In Kocsis, the Sixth Circuit noted that "[t]his court has held that reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims." Id. at 885 (citing Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987)).
There is no evidence in the record demonstrating any substantive advantages Plaintiff may have enjoyed or adverse consequences that he suffered relating to the temporary lateral commissioning position. Accordingly, even if Plaintiff was regarded as disabled under the ADA, he did not suffer any adverse employment action.
Because Plaintiff did not receive any adverse employment action, the Court GRANTS DC's motion for summary judgment.
IV. UAW's MOTION FOR SUMMARY JUDGMENT
For the reasons stated above, Plaintiff's ADA claim against the UAW is without merit. However, the Court could grant UAW's motion for summary judgment on a number of procedural grounds as well.
A claimant who wishes to bring a lawsuit claiming a violation of the ADA must file a charge of discrimination with the EEOC within 300 days of the alleged discrimination. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1); Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 848 (6th Cir. 1998). In the case at bar, Plaintiff sued the International Union, UAW for his ADA claim, but did not file a charge of discrimination with the EEOC against the International Union, UAW. The only charge of discrimination that Plaintiff filed against any union is the charge he filed against Local Union 412, UAW. (Samul Dep. at 216-17; Samul Dep. Ex. 9). However the Local Union and the International Union are separate legal entities, and one is not accountable for alleged misconduct by the other. See Ryan v. General Motors and UAW, 929 F.2d 1105 (6th Cir. 1989); Ruzicka v. General Motors and UAW, 523 F.2d 306 (6th Cir. 1975).
Plaintiff did not exhaust his administrative remedies at the EEOC before suing the International Union, UAW, nor has he attributed to the International Union, UAW any misconduct that forms the basis of this lawsuit.
Local Union 412, UAW was informed that the EEOC issued a right to sue letter on November 18, 1998. (Cole Aff. ¶ 6.) A plaintiff seeking relief under the ADA must file suit within ninety days of receiving a right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1), 42 U.S.C. § 12117(a) (procedures from § 2000e-5 apply to ADA claims). Plaintiff did not timely file a lawsuit against Local 412. Therefore, Plaintiff's ADA claim against Local 412 is time barred.
Because Plaintiff's ADA claims against the UAW are both procedurally barred and without merit, the Court GRANTS Defendant UAW's motion for summary judgment.
V. CONCLUSION
Plaintiff has not demonstrated that he suffered any adverse employment action as a result of being denied a temporary lateral position. In fact, Plaintiff conceded that he may even be better off financially for having not been selected. Accordingly, the Court GRANTS Defendants' motions for summary judgment. SO ORDERED.