Opinion
No. 4:01CV3166
October 29, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
On July 5, 2001, the plaintiff, Victoria Winterlin, filed a complaint against the defendant, Dakota County School District 011, alleging discrimination and retaliation in violation of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C.A. § 12101 et seq. (West 1995) and the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. Ann. § 48-1101 et seq. (Michie 1995). Now before me is the defendant's motion for partial summary judgment on the plaintiff's discrimination claim, filing 21. I find that the defendant's motion must be granted in part.
Although the plaintiff's complaint names "Dakota County School District 001" as the defendant (see Compl., filing 1), an order has been entered to correct the defendant's name in the caption of this case (see filing 17). Despite this order, it appears that the parties and the magistrate judge have continued to file documents using the incorrect caption. (See, e.g., Def.'s Mot. for Partial Summ. J., filing 21; Statement of Material Facts in Supp. of Def.'s Mot. for Partial Summ. J., filing 22; Pl.'s Index of Evidence Offered in Opp'n [to] Mot. for Partial Summ. J., filing 27; Mem. and Order, filing 33.) I call this error to the parties' attention and encourage them to correct the captions of their future submissions to this court.
I. BACKGROUND
The following summary is based upon the information presented in the "Statement of Material Facts in Support of Defendant's Motion for Partial Summary Judgment," filing 22 (hereinafter "Def.'s Facts"), and "Plaintiff's Brief in Opposition to Defendant's Motion for Partial Summary Judgment, Statement of Facts" (hereinafter "Pl.'s Facts").
The plaintiff began teaching in the South Sioux City School District as a third grade teacher in 1979, and in 1993 she became a "library media specialist." As a library media specialist, the plaintiff was responsible for "fulfilling the library needs [of] dozens of classrooms and teachers, [and] hundreds of students . . . at three different buildings." (Pl.'s Facts ¶ 13.) The plaintiff's professional credentials permit her to teach grades "K-6" in Nebraska schools, and she also has a master's degree in elementary education and a "library science endorsement." (Def.'s Facts ¶ 3.)
The parties seem to consider this as the beginning of the plaintiff's employment with the defendant, but I note that I have been referred to no evidence indicating that the "South Sioux City School District" and the named defendant in this case are in fact the same entity.
In May 1995 the plaintiff was first diagnosed with major depressive disorder by Dr. Rodney Dean. Dr. Dean, who has been the plaintiff's treating psychiatrist since their initial meeting in 1995, stated that the plaintiff's current diagnosis is "major depressive disorder, recurrent." (Def.'s Facts, filing 22, Dean Dep. at 7:21.) According to Dr. Dean, a diagnosis of major depressive disorder is appropriate when a person experiences "at least two weeks of continuous mood symptoms having to do with sleep disturbance; eating disturbance; feelings of helplessness, hopelessness; decreased concentration and attention span; [there] could be self-harming thoughts, suicidal thoughts, if you will; as well as impairment of one of three areas, be it occupational, social, or family." (Def.'s Facts, filing 22, Dean Dep. at 35:5-11.) In 1995, the plaintiff's depressive symptoms were triggered by her impending divorce. Dr. Dean stated that the plaintiff has had four major recurrences of depressive symptoms since 1995, and each of these recurrences was triggered by a different stressor. One of the recurrences was caused by occupational stress during the plaintiff's employment with the defendant, and the circumstances surrounding this recurrence will be discussed in further detail below.
The defendant has violated Local Rules 7.1(a)(1)-(2) and 56.1(a) by failing to index its exhibits and by filing its statement of facts with the clerk instead of attaching it to its supporting brief. In the future, the defendant should endeavor to comply with the requirements of the local rules. In particular, the defendant should note that a failure to comply with the local rule regarding motion practice may be deemed an abandonment of its position on a motion. See Local Rule 7.1.
Dr. Dean stated that the plaintiff's condition is treatable. The plaintiff takes medication for her depression, and although this medication does not entirely relieve her symptoms, Dr. Dean said that "frequently she is relatively asymptomatic." (Def.'s Facts, filing 22, Dean Dep. at 11:7-8.) In addition, the plaintiff attends counseling sessions with Dr. Dean at least twice per year, and she schedules additional sessions when necessary. The plaintiff has also received counseling from a social worker during 1995 and from 1997 through 1999, sometimes attending several counseling sessions within a month. Dr. Dean believes that it is unlikely that within the next three years, the plaintiff's symptoms will completely and permanently disappear. However, Dr. Dean stated that on a few occasions, the plaintiff has done very well and has been close to symptom-free for months at a time. The plaintiff claims that since 1995, she has "continuously" experienced problems with anxiety, stress, concentration, memory, sleeping, eating, low self-esteem, and feelings of helplessness, hopelessness, despair, and of being overwhelmed due to her depression. (Pl.'s Index of Evidence Offered in Opp'n [to] Mot. for Partial Summ. J., filing 27 (hereinafter "Pl.'s Index"), Ex. 1, Winterlin Aff. ¶ 5.)
According to Dr. Dean, a person's occupational, social, and familial functioning proceeds without any problems as long as the symptoms of depression are not actively present. However, a recurrence of symptoms impairs one or more of these three areas of functioning. In this case, there is evidence that the plaintiff's depression has affected her "occupational functioning" by causing her to miss work. For example, it appears that the plaintiff's symptoms have caused her to miss approximately twenty days of work in the three school years since 1999. (See Pl.'s Index, Ex. 5, Winterlin Dep. at 27:18-28:3.) Dr. Dean stated that despite the plaintiff's disorder, she is capable of working in her chosen profession most of the time. He opined that about ten percent of the time, the plaintiff's symptoms are severe enough that he would not recommend that she attempt to perform her duties. In addition, Dr. Dean stated that when the plaintiff is symptomatic, she experiences a cognitive impairment characterized by decreases in her ability to concentrate and in her attention span. The plaintiff stated that her depression does not affect her ability to work "as long as [she] understand[s] the . . . job and [she] feel[s] [she] can handle it." (Def.'s Facts, filing 22, Winterlin Dep. at 40:20-21.) However, the plaintiff and her treating social worker have opined that the plaintiff's depression prevents her from working in a broad range of jobs that are associated with high levels of stress, unless her employer chooses to accommodate her by reducing her stress. (See Pl.'s Index, Ex. 1, Winterlin Aff. ¶ 12; Id. at Ex. 2, Hecht Aff. ¶ 10.)
There is also evidence that the plaintiff's depression has affected her "social functioning." In particular, the plaintiff stated that she does not attend social functions, does not attend parent-teacher conferences for her children, does not attend her children's extracurricular activities, and has dropped out of social organizations and church groups.
Finally, the plaintiff claims that her depression has affected her ability to care for herself and her family, causing her to rely on other family members to help her with these responsibilities. Specifically, she stated that at times she has been unable to get out of bed, prepare meals for her children, do laundry, bathe, brush her teeth, and take her medication consistently. (See Pl.'s Facts ¶ 16 (citing, inter alia, Pl.'s Index, Ex. 1, Winterlin Aff. ¶ 16.) I note, however, that the plaintiff's claim that her depression causes her to fail to take her medication consistently directly contradicts her deposition testimony. In her deposition, the plaintiff stated that "a couple of times" she attempted to do without her medication "just to see if [she] could do it" because "people were telling [her] that [she] shouldn't be dependent on drugs," but that otherwise she has taken her medication "every day." (See Pl.'s Index, Ex. 5, Winterlin Dep. at 39:19-40:5.)
After she was diagnosed with major depressive disorder in 1995, the plaintiff continued to work in her position as library media specialist. Evaluations of the teachers employed by the defendant are performed by the building principals at each school. Sheri Fillipi, a principal at one of the three schools served by the plaintiff, performed an evaluation of the plaintiff on February 26, 1996. The evaluation noted that the plaintiff demonstrated "emotional/mental instability and physical instability in a number of situations during the recent past school years," and indicated that the plaintiff "[c]ould meet professional standards and/or district expectations with assistance." (Pl.'s Index, Ex. 1-A at 2.) The assistance plan accompanying the evaluation identified the plaintiff's lack of attendance as an area of concern, and suggested that "at the earliest opportunity" the plaintiff "seek (or continue to seek) counseling and . . . seek (or continue to seek) proper medical attention." (Id. at 4.) On March 19, 1996, the plaintiff objected to this evaluation (see generally Def.'s Facts, filing 22, "Deposition Exhibit No. 5") and responded that she could provide statements from a psychiatrist and a counselor to demonstrate that her "emotional/mental instability [was] not an issue in the performance of [her] duties," (id. at 1). On March 20, 1996, the plaintiff received a reply to her response indicating that her evaluation rating of "could meet professional standards and/or district expectations with assistance" would not be changed, but that the assistance plan accompanying her evaluation would be replaced by a new plan. (See Pl.'s Index, Ex. 1-B.) This new assistance plan indicated that the plaintiff would be: 1) provided with information concerning "just cause" for discharge; 2) encouraged to continue to receive professional assistance; 3) provided with opportunities to attend "staff development seminars or workshops on issues that [would] directly benefit [her] well being," such as a "[s]tress management seminar for educators"; 4) informed about "the option of coming back on the evaluation cycle for 96-97"; and 5) provided with reassurance and an opportunity to discuss the issues raised in her response letter. (Id.) Although the parties have referred me to no evidence concerning the aftermath of this exchange of letters, the plaintiff evidently retained her position as library media specialist.
There is evidence that the plaintiff's depression caused her to miss approximately fifteen days of work during the 1995-96 school year, and that she was frequently absent on other occasions for various reasons unrelated to her depression. (See generally Def.'s Facts, filing 22, "Deposition Exhibit No. 5." See also Pl.'s Index, Ex. 1-B, at 1 ("We believe 69 to 70 days of absence in one and three quarters years is excessive.").)
In early 1999, the plaintiff experienced a recurrence of her depressive symptoms. She participated in a partial hospitalization program from February 3, 1999, to March 26, 1999, in order to treat her depression, but the program caused her to be absent from work for an unspecified period of time. (See Pl.'s Facts ¶ 11.) Dr. Dean recommended that the plaintiff take additional time off from work, but the plaintiff did not want to stop working completely. As a compromise, Dr. Dean recommended that the plaintiff temporarily reduce her responsibilities in order to avoid exacerbating her symptoms. He sent a letter to the defendant suggesting that the plaintiff work in only two of the three buildings that she regularly served. Dr. Dean believed that the strained relationship between the plaintiff and the principal of one of the schools (i.e., the aforementioned Sheri Fillipi) caused the plaintiff to experience additional stress, and therefore he specifically suggested to the defendant that the plaintiff be allowed to forgo working at Fillipi's school.
Meanwhile, Fillipi brought the plaintiff's absenteeism to the attention of then-assistant superintendent Steve Rector. Rector believed that the plaintiff's inability to work with Fillipi, rather than her depression, motivated her request to eliminate her responsibilities at Fillipi's school. Rector also thought that Dr. Dean's recommendation was "a little presumptuous" in that it specified the particular building that the plaintiff should not be assigned to work in. (Pl.'s Index, Ex. 3, Rector Dep. at 84:22-23. See also id. at 84:20-85:18.) The plaintiff's request to reduce her responsibilities to two buildings was rejected by Rector.
The evidence indicates that Rector became the defendant's superintendent of schools in July 1999, and had served as the assistant superintendent for four years prior to that date.
On April 6, 1999, the defendant offered to renew the plaintiff's contract, and included another plan of assistance to address certain of the plaintiff's problems. However, the plaintiff resigned from the defendant's employ in April 1999. Currently, the plaintiff works full-time as a library media specialist for a "K-12" school in Macy, Nebraska, serving approximately 300 students. The plaintiff supervises all aspects of the library media center at the Macy school and teaches two library skills classes. During her first year at the Macy school, the plaintiff did not teach the library skills classes, but instead served as a substitute teacher. After her first year, the school granted the plaintiff's request to be relieved of substitute teaching duties because those responsibilities "increased [her] workload to the point where [she] couldn't do a good job." (Def.'s Facts, filing 22, Winterlin Dep. at 14:13-14.) The plaintiff's depression has caused her to be absent from her position at the Macy school for approximately twenty days over the past three years, and she has felt overwhelmed at her new job on occasion.
There is evidence that the plaintiff would have been responsible for over eight hundred students if she accepted the defendant's offer to renew her employment contract.
On July 5, 2001, the plaintiff filed a complaint against the defendant alleging two causes of action: discrimination in violation of the ADA and the NFEPA (Count I), and retaliation in violation of the ADA and NFEPA (Count II). The defendant has moved for summary judgment on Count I of the plaintiff's complaint. (See Mot. for Partial Summ. J., filing 21.) Although the defendant's motion prays for summary judgment on Count I of the plaintiff's complaint in its entirety, neither the defendant's motion nor its supporting brief address the plaintiff's claim of discrimination in violation of the NFEPA. Instead, the defendant has directed all of its arguments against the plaintiff's ADA claim. I have studied the court file, and I note that the parties have submitted a Rule 26 report outlining the elements of the plaintiff's claims. (See filing 9.) The report contains no mention of the NFEPA claims alleged in the complaint, which suggests that the plaintiff's claims are now based solely on the ADA. (See id.) It seems to me that there remains some genuine ambiguity on this point, and the parties will be ordered to clarify the status of the plaintiff's NFEPA claims prior to trial. In any event, my analysis of the defendant's motion for summary judgment on the plaintiff's claim of discrimination in violation of the ADA is set forth below.
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when the evidence favoring the party opposing the motion is sufficient to allow a jury to return a verdict for that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. See Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets its initial burden of establishing the nonexistence of a genuine issue, the burden shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," Anderson, 477 U.S. at 257, and "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," id. at 256 (citing Federal Rule of Civil Procedure 56(e)).
III. ANALYSIS
The ADA prohibits "covered entit[ies]" from discriminating "against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). In order to prevail on a claim of discrimination in violation of the ADA, a plaintiff must first present a prima facie case. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir. 1999) (en banc). "The employer must then rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for the adverse employment action." Id. at 1135. If the employer successfully rebuts the presumption of discrimination, "the burden of production shifts back to the plaintiff to demonstrate that the employer's non-discriminatory reason is pretextual."Id. Under this framework, the plaintiff must present a prima facie case of discrimination in order to survive the defendant's motion for summary judgment. See id. at 1134-35. To make out a prima facie case of discrimination in violation of the ADA, the plaintiff must show: (1) that she is disabled within the meaning of the ADA; (2) that she is qualified to perform the essential functions of her position; and (3) that she suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. See id. at 1135. In its motion, the defendant argues only that it is entitled to summary judgment because the plaintiff cannot establish that she is disabled within the meaning of the ADA.
Under the ADA, an individual has a disability if she has a "physical or mental impairment that substantially limits one or more of [her] major life activities"; if she has "a record of such an impairment"; or if she is "regarded as having such an impairment." 42 U.S.C. § 12102(2). In her complaint, the plaintiff alleges that she can satisfy all three definitions of "disability" under the ADA. The defendant, however, argues that the plaintiff is not "disabled" in any sense. My analysis of each of the defendant's arguments is set forth below.
A. Whether the Plaintiff Suffers from a Physical or Mental Impairment that Substantially Limits One or More of Her Major Life Activities
The plaintiff suffers from a recurrent form of major depressive disorder. There appears to be no dispute as to whether this disorder constitutes a "mental impairment" within the meaning of 42 U.S.C. § 12102(2). For the purposes of this memorandum, I conclude that the plaintiff is an individual with a "mental impairment" within the meaning of the ADA.
However, in order for the plaintiff's mental impairment to qualify as a disability, it must substantially limit one or more of her major life activities. See 42 U.S.C. § 12102(2)(A). Although the ADA does not define the term "major life activities," the Eighth Circuit has indicated that the Equal Employment Opportunity Commission regulations issued to implement the ADA may be consulted for guidance on this issue. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996). "As defined in 29 C.F.R. § 1630.2(i), the phrase `major life activities' means `functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing learning, and working.'" Id. A person is substantially limited if she is "[u]nable to perform a major life activity that the average person in the general population can perform; or . . . [s]ignificantly 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(j). See also Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002).
The defendant argues that the plaintiff cannot establish that she was substantially limited in the major life activity of working.
A person is substantially limited in working if he or she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). Because disability is determined on a case-by-case basis, "[a] court must ask whether the particular impairment constitutes for the particular person a significant barrier to employment." Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996) (internal quotation omitted).Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002).
I have applied the standard articulated in Moysis to the facts of this case, and I find that I agree with the defendant's argument that the plaintiff is not substantially limited in working. Although there is evidence that the plaintiff's ability to work was occasionally affected by her impairment, she was not significantly restricted in her ability to perform work commensurate with her training. I am mindful of Dr Dean's opinion that approximately ten percent of the time he would not recommend that the plaintiff attempt to perform her duties due to the severity of her symptoms, and I recognize that the plaintiff's symptoms can impair her concentration and attention span. I also understand that the plaintiff has experienced four severe recurrences of her depressive symptoms during the last seven years, and that her impairment is not likely to be completely "cured" within the next few years. Nevertheless, the evidence shows that the plaintiff is frequently relatively asymptomatic. She has had success treating her condition with medication and counseling. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999) (indicating that mitigating measures must be considered in determining whether an impairment is substantially limiting). In addition, the plaintiff herself once stated that her "emotional/mental instability [was] not an issue in the performance of [her] duties." (Def.'s Facts, filing 22, "Deposition Exhibit No. 5" at 1.) More recently, she reiterated that her depression does not affect her ability to work "as long as [she] understand[s] the . . . job and [she] feel[s] [she] can handle it." (Def.'s Facts, filing 22, Winterlin Dep. at 40:20-21.) When the defendant offered to renew the plaintiff's contract in 1999, the plaintiff responded that she would like to continue working for the defendant as either a full-time classroom teacher or a part-time librarian, as long as her responsibilities at Fillipi's school were eliminated. (See Pl.'s Index, Ex. 3, Rector Exhibit No. 21 at 3.) After the plaintiff's requests were denied, the plaintiff left the defendant's employ and soon thereafter secured a new position in her field. She currently works as a full-time library media specialist, albeit in a single school and serving a smaller number of students than she served while working in the defendant's schools. Thus, she has maintained full-time employment in her field ever since she was first diagnosed with a major depressive disorder in 1995. It seems to me that, although there is evidence that the plaintiff experienced some limitations in her ability to work due to her impairment, there is no evidence from which a reasonable factfinder could conclude that she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs," 29 C.F.R. § 1630.2(j)(3)(i), or that her impairment "constitutes . . . a significant barrier to employment." Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002) (quoting Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996)). On the contrary, when taken in a light most favorable to the plaintiff's legal position in this lawsuit, the evidence demonstrates only that the plaintiff's depression rendered her temporarily unable to work at a particular school without risking an exacerbation of her symptoms, possibly due to her strained relationship with the principal of that school, and that she occasionally missed time from work. Although a plaintiff alleging a substantial limitation in her ability to work is not required to prove that her disability precludes her from working generally, see Moysis, 278 F.3d at 825, the inability to perform one particular job (such as working as a library media specialist for a single, specific school) does not constitute a substantial limitation on working, see Cooper v. Olin Corp., Winchester Division, 246 F.3d 1083, 1089 (8th Cir. 2001).
I can only estimate the number of the plaintiff's absences during her last year working for the defendant because the parties have submitted no evidence on this point. The plaintiff stated that her depression has caused her to miss approximately twenty days of work during her three years at the Macy school. (See Pl.'s Index, Ex. 5, Winterlin Dep. at 27:18-28:3.) On the other hand, the plaintiff's letter of March 19, 1996, to Principal Fillipi states that the plaintiff was absent for 15 days during the 1995-96 school year due to her depression, and expresses concern that the defendant would consider fifteen absences to be excessive. (See Def.'s Facts, filing 22, "Deposition Exhibit No. 5" at 1.) Since the 1995-96 school year is far removed in time from the alleged adverse employment action, see Browning v. Liberty Mutual Insurance Co., 178 F.3d 1043, 1047 (8th Cir. 1999) (noting that plaintiff must establish that she is disabled at the time of the adverse employment action), it may be that the information concerning the plaintiff's attendance at the Macy school, where she began working in 1999, provides a better estimate of the plaintiff's absenteeism during the 1998-99 school year. In any event, the plaintiff has not come forward with facts to raise a genuine issue as to whether she is disabled by virtue of her inability to regularly attend her job.
The plaintiff and her treating social worker have opined that the plaintiff's depression prevents her from working in a broad range of jobs that are associated with high levels of stress, unless her employer chooses to accommodate her by reducing her stress. (See Pl.'s Index, Ex. 1, Winterlin Aff. ¶ 12; Id. at Ex. 2, Hecht Aff. ¶ 10.) However, their conjecture is insufficient to demonstrate that the plaintiff has suffered from a significant reduction in meaningful employment opportunities due to her depression. See Cooper v. Olin Corp., Winchester Division, 246 F.3d 1083, 1089 (8th Cir. 2001) (citingWebb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996)). "Factors to be considered in determining whether a plaintiff is restricted from a class of jobs include the person's expertise, background, and job expectations." Id. In this case, the evidence demonstrates that the plaintiff is a highly trained, fully accredited, experienced educator. She is qualified to teach in an elementary school classroom setting or work as a library media specialist, she has done so for a number of years since the onset of her impairment, and she readily obtained full-time employment in her field of expertise after leaving the defendant's employ. Although it is true that the evidence shows that the plaintiff's depression is exacerbated by stress, the plaintiff and her social worker did not attempt to specify any particular class of "stressful" jobs that the plaintiff would be precluded from performing given her training and expertise. It seems to me that the witnesses' opinions amount to mere speculation that some unspecified "broad range of jobs" exists that would be too stressful for the plaintiff. This conjecture is unaccompanied by probative evidence, and as such, it is insufficient to support a reasonable finding in the plaintiff's favor. See, e.g.,Sprenger v. Federal Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir. 2001). Under these circumstances, there is no genuine issue for trial, and I conclude that the plaintiff is not substantially limited in the major life activity of working.
In its brief in opposition to the defendant's motion for summary judgment, the plaintiff suggests that the position she formerly held with the defendant and her current job in Macy are within the "broad range of jobs" characterized by "high levels of stress" that the plaintiff is prevented from working in due to her impairment. (See Pl.'s Br. in Opp'n to Def.'s Mot. for Partial Summ. J. (hereinafter "Pl.'s Br.") at 10.) The evidence simply does not support this assertion. Indeed, the plaintiff has stated that she is still able to perform the essential functions of her job, (see, e.g., Pl.'s Index, Ex. 1, Winterlin Aff. ¶ 11), and it is difficult to know what to make of the plaintiff's paradoxical suggestion that her impairment has restricted her from the opportunity to work in the full-time job that she currently holds.
Although the plaintiff was not substantially limited in working, she argues that her impairment substantially limited her in interacting with others and caring for herself and her family. It must first be determined whether interacting with others and caring for oneself or one's family are major life activities within the meaning of the ADA. If either of these activities qualifies as a major life activity, I must then determine whether a reasonable jury could conclude that the plaintiff was substantially limited in that activity.
The Equal Employment Opportunity Commission regulations may be consulted to determine whether interacting with others is a major life activity, and those regulations are entitled to deference. See Olson v. Dubuque Community School District, 137 F.3d 609, 612 (8th Cir. 1998).
The EEOC notice . . . does in fact state that while occasional conflict with colleagues is not sufficient to demonstrate a "substantial limitation" within the meaning of the ADA, "[a]n individual would be substantially limited . . . if his/her relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary. These limitations must be long-term . . . to justify a finding of ADA disability."Id. (citing EEOC Enforcement Guidance: Psychiatric Disabilities and the Americans with Disabilities Act § 9 (March 25, 1997), EEOC Compliance Manual (BNA) (emphasis in original). Therefore, I find that the plaintiff may be able to demonstrate that she was disabled within the meaning of the ADA if she can establish that her relations with others were characterized on a regular, long-term basis by severe problems, such as consistently high levels of hostility, social withdrawal, or a failure to communicate when necessary. Id.
The plaintiff has argued that she is substantially limited in her ability to interact with others because she had problems interacting with Sheri Fillipi from 1996 through 1999, and because she has withdrawn from social relationships. The plaintiff states that "Sheri Fillipi was Plaintiff's least favorite administrator, [but] they maintained a professional relationship and their jobs did not require them to interact frequently." (Pl.'s Facts ¶ 23.) I have no difficulty concluding that, as a matter of law, evidence of interaction problems with a single individual does not create a genuine issue as to whether the plaintiff was substantially limited in the major life activity of interacting with others. Olson, 137 F.3d at 612. This is especially true when the plaintiff was not required to interact frequently with this individual and was able to maintain a professional relationship with her. (See Pl.'s Facts ¶ 23.) However, the plaintiff has also submitted an affidavit stating that her impairment has caused her to socially withdraw. In particular, she stated that she does not attend social functions, does not attend parent-teacher conferences for her children, does not attend her children's extracurricular activities, and has dropped out of social organizations and church groups. (See Pl.'s Index, Ex. 1, Winterlin Aff. ¶ 10.) The defendant has not replied to the plaintiff's argument that this withdrawal is substantially limiting.
Although there is no evidence that the plaintiff's social withdrawal has endured for a significant period of time, I must view the evidence before me in a light favorable to the plaintiff. Although the plaintiff's evidence is weak, I conclude that at this stage — and in the absence of a response from the defendant — — the plaintiff is entitled to the benefit of the inference that her social limitations have endured since the onset of her depression in 1995. Therefore, there is a genuine issue as to whether the plaintiff is substantially limited in her ability to interact with others, and the question of whether or not the plaintiff is disabled within the meaning of the ADA remains to be resolved by the trier of fact.
As I noted above, the plaintiff has also argued that she is substantially limited in her ability to care for herself and others. The Eighth Circuit has explicitly stated that "caring for others" is not a major life activity within the meaning of the ADA. See Krauel v. Iowa Methodist Medical Center, 95 F.3d 674, 677 (8th Cir. 1996). However, more recently the Eighth Circuit has indirectly suggested that a plaintiff's ability to care for others is relevant to the disability determination.See Cooper v. Olin Corp., Winchester Division, 246 F.3d 1083, 1088 (8th Cir. 2001) (discussing fact that plaintiff raised a family and cared for horses and pets). In any event, caring for oneself is clearly listed as a major life activity in the Equal Employment Opportunity Commission regulations. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996). The plaintiff states in her affidavit that at times her impairment causes her to be unable to get out of bed, clean her clothes, bathe herself, and brush her teeth, and that she relies on others to help her with these responsibilities during this time. (See Pl.'s Index, Ex. 1, Winterlin Aff. ¶ 16.) She also claims that she has been unable to regularly take her medication to treat her depression, but since this claim directly contradicts her deposition testimony, (compare Pl.'s Index, Ex. 5, Winterlin Dep. at 39:19-40:5with Pl.'s Index, Ex. 1, Winterlin Aff. ¶ 16), it shall be disregarded. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-66 (8th Cir. 1983). Once again, the plaintiff has not provided evidence concerning regularity or long-term nature of these effects, but the defendant has not replied to the plaintiff's argument that she is substantially limited in her ability to care for herself. I must conclude that a genuine issue remains for trial, and the trier of fact must determine whether or not the plaintiff is substantially limited in her ability to care for herself.
I have concluded that there remains a genuine issue for trial as to whether the plaintiff was substantially limited in a major life activity as a result of her impairment. Although the plaintiff was not substantially limited in working, the plaintiff has submitted uncontested evidence that could support an inference that she was substantially limited in interacting with others and caring for herself. Therefore, the defendant's motion for partial summary judgment on Count I of the plaintiff's complaint must be denied.
B. Whether the Plaintiff Has a Record of a Physical or Mental Impairment that Substantially Limits One or More of Her Major Life Activities
As I noted above, an individual has a "disability" within the meaning of the ADA if she has a "physical or mental impairment that substantially limits one or more of [her] major life activities"; if she has "a record of such an impairment"; or if she is "regarded as having such an impairment." 42 U.S.C. § 12102(2). The parties dispute whether the plaintiff can demonstrate that she has a record of a substantially limiting impairment.
"In order to have a record of disability under the ADA, a plaintiff's medical documentation must show that he has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities." Weber v. Strippit, Inc., 186 F.3d 907, 915 (8th Cir. 1999) (citing 29 C.F.R. § 1630.2(k)). See also Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir. 1998). Thus, in order to demonstrate that she has a record of a disability, the plaintiff must show "that one or more of [her] major life activities was substantially limited" by her impairment. Gutridge, 153 F.3d at 901.
The evidence shows that the plaintiff has a record of major depressive disorder. The question of whether this disorder constitutes a "mental impairment" within the meaning of the ADA has not been raised by either party. Therefore, for the purposes of this motion, I assume that the plaintiff has a record of a "mental impairment" within the meaning of the ADA.
I have already reviewed the evidence concerning the limiting effects of the plaintiff's mental impairment. (See supra Part III.A.) I conclude that the plaintiff has not come forward with sufficient evidence to raise a genuine issue for trial regarding whether she was substantially limited in her ability to work at any time since her impairment was diagnosed in 1995. However, it remains to be determined whether the plaintiff's major depressive disorder substantially limited her ability to interact with others or care for herself. Therefore, there is a genuine issue as to whether the plaintiff has a record of a substantially limiting impairment, which precludes summary judgment.
C. Whether the Plaintiff Was Regarded as Having a Physical or Mental Impairment that Substantially Limits One or More of Her Major Life Activities
A person is disabled within the meaning of the ADA if she is regarded as having a physical or mental impairment that substantially limits one or more of her major life activities. See 42 U.S.C. § 12102(2).
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."Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999) (quoting 42 U.S.C. § 12101(7)). In order for the plaintiff to establish that the defendant regarded her as disabled, a showing that the defendant was aware of the plaintiff's condition is necessary, but not sufficient. See Olson v. Dubuque Community School District, 137 F.3d 609, 612 (8th Cir. 1998). "[T]he Plaintiff must present some evidence . . . upon which a reasonable Juror could conclude that the Defendant considered the Plaintiff to be disabled within the meaning of the ADA." Conant v. City of Hibbing, 131 F. Supp.2d 1129, 1136 (D.Minn. 2000).
In this case, the evidence now before me entitles the plaintiff to the benefit of the inference that the defendant was aware of the plaintiff's diagnosis of major depressive disorder. (See, e.g., Pl.'s Index, Ex. 3, Rector Dep. at 83:24-84:19.) There is also evidence that Rector was aware that the plaintiff was having difficulties functioning at home and at work. (See id. at 77:10-80:1.) However, in order to prevail on summary judgment, the plaintiff must come forward with evidence that raises a genuine issue as to whether the defendant considered the plaintiff to be substantially limited in a major life activity. On this point, the plaintiff argues that the defendant regarded her as disabled because: 1) Sheri Fillipi noted in 1996 that the plaintiff demonstrated emotional and mental instability; and 2) the defendant recommended assistance plans to help the plaintiff deal with the effects of her depression.
First, a negative performance evaluation alone is not sufficient to demonstrate that the defendant regarded the plaintiff as substantially limited in a major life activity. See Olson v. Dubuque Community School District, 137 F.3d 609, 612 (8th Cir. 1998). While Fillipi's evaluation demonstrates that the defendant believed that the plaintiff's impairment was affecting her performance, it does not demonstrate that the defendant regarded the plaintiff as substantially limited in her ability to work. Indeed, even if the evidence showed that the defendant concluded that the plaintiff was unable to fully perform the essential functions of her particular job, such evidence would be inadequate to support a finding that the defendant regarded the plaintiff as substantially limited in the major life activity of working. See Conant v. City of Hibbing, 131 F. Supp.2d 1129, 1136 (D.Minn. 2000). It must be recalled that the plaintiff must be regarded as substantially limited in a broad range or class of jobs in order to be regarded as substantially limited in working, see Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002), and there is simply no such evidence in this case.
Second, the simple fact that the defendant knew of the plaintiff's impairment and offered her assistance is insufficient to create a genuine issue as to whether the defendant regarded the plaintiff as disabled.See, e.g., Anderson North Dakota State Hospital, 232 F.3d 634, 637 (8th Cir. 2000). In Anderson, the defendant was aware of the plaintiff's fear of snakes and "even took steps to address the situation by calling exterminators to prevent snakes from entering the building." Id. Given these facts, the Eighth Circuit concluded that the plaintiff's claim was not supported by sufficient evidence to survive summary judgment. Id. Similarly, the fact that the defendant recognized the plaintiff's impairment and offered a plan of assistance to help her to "meet professional standards and/or district expectations," (Pl.'s Index, Ex. 1-A at 3), does not establish that the defendant regarded the plaintiff as substantially limited in a major life activity.
The plaintiff has also argued that her impairment has substantially limited her in the major life activities of interacting with others and caring for herself. The plaintiff has come forward with evidence demonstrating that the defendant knew that the plaintiff had difficulty interacting with Sheri Fillipi and that the plaintiff was having trouble caring for herself and her family. In addition, I have concluded that there remains a genuine issue as to whether the plaintiff was in fact substantially limited in her abilities to interact with others or care for herself. Nevertheless, evidence that the defendant was aware of the plaintiff's difficulties with Fillipi and at home does not establish that the defendant regarded these problems as substantially limiting any major life activity. See Olson v. Dubuque Community School District, 137 F.3d 609, 612 (8th Cir. 1998). In other words, the issue is not whether the defendant simply knew of the plaintiff's alleged difficulties, but whether the defendant regarded those difficulties as substantially limiting a major life activity. On this latter point, the plaintiff has offered no evidence.
The defendant would be deemed to have regarded the plaintiff as substantially limited in her abilities to work, interact with others, or care for herself if it treated the plaintiff as if she were substantially limited in any of those activities. Roberts v. Unidynamics Corp., 126 F.3d 1088, 1092 (8th Cir. 1997). Here, although there is evidence that the defendant knew of the plaintiff's impairment, there is no evidence that the defendant treated the plaintiff as if she were substantially limited in any major life activity. Also, under Sutton v. United Air Lines, Inc., the plaintiff must show that the defendant entertained misperceptions about her, her alleged impairment, and its effects on her major life activities. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). There is no such evidence in this case.
In addition, even if the plaintiff were able to show that the defendant regarded her as disabled, it seems to me that the defendant would still be entitled to summary judgment on Count I of the plaintiff's complaint to the extent that the count is based upon a theory that the defendant regarded the plaintiff as disabled within the meaning of the ADA. Count I alleges that the defendant discriminated against the plaintiff in violation of the ADA by failing to alter the conditions of her employment to reasonably accommodate her alleged disability, and that this failure to accommodate resulted in the plaintiff's constructive discharge. (See Compl., filing 1, ¶¶ 16-21.) However, the Eighth Circuit has held that "`regarded as' disabled plaintiffs are not entitled to reasonable accommodations." Weber v. Strippit, Inc., 186 F.3d 907, 917 (8th Cir. 1999). Thus, the plaintiff's claim that she was denied a reasonable accommodation in violation of 42 U.S.C. § 12112 fails as a matter of law to the extent that it is based upon a theory that the defendant regarded the plaintiff as disabled.
In response to this argument, the plaintiff suggests that I disregardWeber "for the purposes of this [m]otion." (Pl.'s Br. at 30.) I do not believe I am free to disregard the Eighth Circuit's decision on this matter, which, incidentally, is quite explicit and is supported by a thorough analysis. See Weber, 186 F.3d at 916-17. The plaintiff also argues as follows:
Defendant cites Weber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999), arguing that summary judgment is appropriate in this case even if there is a genuine issue of fact on plaintiff's "regarded as" claim because "a perceived disability claimant is not entitled to a reasonable accommodation." However, it is Plaintiff's position at this time that Defendant directly discriminated against her by terminating her on the basis of her perceived disability. Because the foregoing [m]otion does not put Plaintiff's allegations of discrimination at issue, Plaintiff will not argue this issue for the purposes of this [m]otion. What is important is that Plaintiff's "regarded as" claim should survive because her claim is that Defendant discriminated against her by terminating her on the basis of her disability and by failing to give her a reasonable accommodation.
(Pl.'s Br. at 30 (emphasis in original).) Count I of the plaintiff's complaint is based upon a constructive discharge that was allegedly caused by the defendant's failure to accommodate the plaintiff. (See Compl., filing 1, ¶¶ 10-25.) No "second" claim of discrimination in violation of the ADA is set forth in Count I. The plaintiff refuses to specifically identify this mysterious claim even now, suggesting that she need not do so because the defendant's motion failed to address a claim that does not appear in the complaint. The plaintiff's argument is not well taken. I conclude that the defendant is entitled to summary judgment on Count I of the complaint to the extent that the count is based upon a theory that the defendant regarded the plaintiff as disabled.
IT IS ORDERED that:
The plaintiff is not substantially limited in the major life activity of working;
The plaintiff has no record of an impairment that substantially limited her in the major life activity of working;
The defendant is entitled to summary judgment on Count I of the complaint to the extent that the plaintiff's discrimination claim is based upon the theory that the defendant regarded the plaintiff as disabled; and
The defendant's Motion for Partial Summary Judgment, filing 21, is otherwise denied.IT IS FURTHER ORDERED that on or before the date of trial, the parties jointly notify the court of the status of the plaintiff's claims under the NFEPA.