Opinion
Case No. 2:03 CV 556 DAK.
March 29, 2005
ORDER
This matter is before the court on Defendant's Motion for Summary Judgment and Defendant's Motion to Strike Plaintiff's Supplemental Affidavit. A hearing on the motions was held on March 3, 2005. At the hearing, defendant Detroit Diesel Remanufacturing Corporation was represented by Christopher B. Snow of Clyde Snow Sessions Swenson. Plaintiff, Lourdes Henrietta Vigil, was represented by David J. Holdsworth. The court has carefully considered all pleadings, memoranda, affidavits, and exhibits submitted by the parties as well as the law and facts relating to the motions. Now being fully advised, the court renders the following Order.
I. INTRODUCTION
Plaintiff sole cause of action alleges that defendant failed to accommodate her disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101- 12213. Defendant has moved for summary judgment seeking dismissal of plaintiff's Complaint in its entirety. After defendant filed its motion for summary judgment and plaintiff filed a memorandum in opposition to the motion for summary judgment, the parties entered into a stipulation of undisputed facts in order to clarify the record before the court. Less than three weeks later, plaintiff filed a supplemental affidavit. Defendant has requested that the court strike the supplemental affidavit on the grounds it contradicts the stipulated facts.
II. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Summary judgment is appropriate if the record before the court shows "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). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court will "view the evidence and draw any inferences therefrom in the light most favorable to the party opposing summary judgment." MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1440 (10th Cir. 1996).
B. Background
Defendant manufactures, remanufactures and services heavy-duty diesel and alternative fuel engines. Plaintiff worked at defendant's facility in Tooele, Utah as a remanufacturing technician. Plaintiff's job required her to perform constant repetitive motions with her right fingers, hand and arm. Over time, plaintiff began experiencing pain and discomfort in her right arm and hand as a result of the repetitive motions inherent in her work. In June of 2000, plaintiff was diagnosed with right hand overuse syndrome, right thumb tenosynovitis and lateral epicondylitis. Plaintiff's physician ordered work restrictions that included minimal use of the right hand and a lifting limit of 20 pounds. Even with the restrictions, plaintiff's condition worsened and she was eventually required to undergo surgery. Defendant allowed plaintiff to take a temporary leave of absence until the surgery was completed and she had recovered.
After the surgery, it was no longer possible for plaintiff to perform her original job, with or without accommodation. Plaintiff returned to work on June 12, 2001 and was placed in various temporary jobs in an effort to extend plaintiff's employment until a permanent position opened that plaintiff could perform. Plaintiff continued to experience pain, and therefore, moved from one temporary assignment to the next. Plaintiff's physician eventually recommended that plaintiff discontinue her work at Detroit Diesel as it was causing ongoing pain and new problems. Plaintiff's employment was terminated in April of 2002 after defendant concluded that they could not successfully place plaintiff in a position that would not cause her pain or additional injury.
Plaintiff concedes that when she was terminated in April of 2002 her physical condition had deteriorated to the point that it was not possible for defendant to accommodate her because she was no longer able to perform any of the jobs at Detroit Diesel, with or without accommodation. However, plaintiff alleges there were vacancies she could have filled prior to her termination in April of 2002, and that if she had performed one of those jobs her condition would not have deteriorated and she could have continued working for a longer time period.
C. Discussion
The parties agree that Smith v. Midland Brake, Inc., 180 F.3d 1154, 1179-80 (10th Cir. 1999) (en banc) sets forth the proper legal framework for determining this case. "To survive summary judgment on an ADA claim of failure to accommodate by offering reassignment to a vacant position, the employee initially bears the burden of production with respect to a prima facie case." Id. at 1179. Defendant argues that summary judgment is appropriate in this case because plaintiff has failed to meet the fourth element required to establish a prima facie case:
The employee was qualified, with or without accommodation, to perform one or more appropriate vacant jobs within the company that the employee must, at the time of the summary judgment proceeding, specifically identify and show were available within the company at or about the time the request for reassignment was made.Id.
Before addressing whether plaintiff has established a prima facie case, the court notes that it is unclear whether plaintiff can demonstrate a violation of the ADA when it is undisputed that at the time of her termination there were no vacancies, or vacancies likely to open in the future, that she was qualified to perform even with accommodation. Plaintiff's legal theory, in many ways, resembles a worker's compensation or social security disability claim. Plaintiff is asserting that the temporary positions she performed for defendant after her surgery caused her to become more disabled, to the point that she is no longer qualified to perform any jobs for defendant. Plaintiff believes that if she had been placed in a less physically demanding job after her surgery that she would have been able to continue working for a longer period of time. It is undisputed that at the time of her termination, plaintiff was not qualified to perform any jobs for defendant.
Assuming plaintiff can assert a claim under the ADA for defendant's failure to reassign her to a vacant position that would have prevented plaintiff's condition from further declining, the court finds that plaintiff has failed to specifically identify and show there was a vacant permanent position that she was qualified to perform at the time she requested accommodation. At the oral argument, counsel for plaintiff conceded that there was impermissible hearsay contained in plaintiff's affidavits and it should not be considered by the court in its determination of the summary judgment motion. Viewing the remaining admissible evidence in a light most favorable to the plaintiff, the court determines that plaintiff has failed to establish a genuine dispute of material fact as to whether there was a vacant position to which she could have been permanently reassigned. It is not enough for plaintiff to speculate as to possible openings or make conclusory statements that she believes there were jobs she could have performed. This is especially true where, as here, defendant has produced conclusive evidence that there were no permanent vacant positions that plaintiff could have been reassigned. Accordingly, summary judgment is appropriate.
III. MOTION TO STRIKE PLAINTIFF'S SUPPLEMENTAL AFFIDAVIT
Defendant urges the court to strike plaintiff's supplemental affidavit because it contradicts the parties' Stipulation of Undisputed Facts. Specifically, the stipulation states that plaintiff "never identified or requested to work on the datamyte machine" during her employment with defendant. Plaintiff claims in her supplemental affidavit that she requested to work on the datamyte machine. Plaintiff argues that, taken in context, the supplemental affidavit does not contradict the stipulated facts. Plaintiff argues that the stipulation and the affidavit are talking about different time periods.
The court agrees with defendant that the affidavit and stipulation conflict with each other. However, the court concludes that the circumstances of this case do not require the court to strike the affidavit for contradicting the stipulation. In Durability Inc. v. Sovereign Life Insurance Co. of California, 212 F.3d 551 (10th Cir. 2000) the Tenth Circuit held that a bankruptcy court abused its discretion in refusing to consider an affidavit that contradicted an earlier stipulation of facts. Id. at 557. The court noted that the timing of when the contradictory evidence is presented is important. For example, attempting to introduce evidence at trial that contradicts a stipulation would likely be inappropriate. However, "if . . . the request to withdraw or amend the stipulation is made before significant prejudice to the other parties would result, promotes important equitable and legal considerations, and is not controlled by a rule of procedure, the party seeking the withdrawal must simply show good reason for the request." Id. at 556. The Tenth Circuit also noted that the more lenient standard should be applied in the context of summary judgment so long as the party is not attempting to create a sham issue of fact. Id.
In the instant case, less than three weeks passed between when the attorneys signed the stipulation and when plaintiff submitted her supplemental affidavit. Defendant had already filed its motion for summary judgment prior to the stipulation being drafted. Accordingly, it is difficult for defendant to demonstrate prejudice. Plaintiff may have been better served by requesting to amend the stipulation, instead of arguing that the stipulation and affidavit are consistent. However, the same oversight occurred in Durability, Inc. and the court overlooked it: "Clearly, the better practice would have been for the Trustee to move the court for leave to withdraw the prior stipulations. The supplemental response nevertheless sufficiently alerted the bankruptcy court and Sovereign to the Trustee's change in position." Id. Likewise, the filing of plaintiff's supplemental affidavit sufficiently alerted defendant to plaintiff's change in position. The court will not strike plaintiff's affidavit for contradicting the stipulated facts. As previously discussed, plaintiff has conceded that certain portions of her affidavits rely upon impermissible hearsay that should not be considered by the court in its determination of the summary judgment motion. Accordingly, the court will strike the portions of plaintiff's supplemental affidavit that rely upon hearsay or are not based upon personal knowledge.
IV. CONCLUSION
Based upon the foregoing, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED. Defendant's Motion to Strike Plaintiff's Supplemental Affidavit is GRANTED in part, and DENIED in part. This case is dismissed with prejudice in its entirety, and each party shall bear its own costs. The Clerk of the Court is directed to enter judgment accordingly.