ADA Decisions, Timothy Dierkes, Plaintiff v Supervalu Holdings, Inc, Defendant., U.S. District Court, E.D. Missouri, 3 ADD ¶3-026, (Aug. 15, 1996)

MEMORANDUM AND ORDER

This is an action filed by Timothy Dierkes (“Plaintiff”) against his employer, Supervalu Holdings, Inc. (“Defendant”), alleging that he was, and is, subjected to adverse employment conditions because of his disability. Presently pending before the Court [1] are the opposed motions of Defendant to dismiss, [Doc. 7], and for summary judgment, [Doc. 8].

Background

The following material facts are not in dispute.

Plaintiff is employed by Defendant as an order selector and has been since September 15, 1985. This job requires Plaintiff to fill orders by moving items from shelves to a cart. Some of these items weigh in excess of thirty (30) pounds.

Plaintiff suffered a torn cartilage injury to his left knee in 1990. He injured his back in June 1991 and injured his left elbow in May 1993. All these injuries occurred during the course of Plaintiff's employment with Defendant.

In the fall of 1993, Defendant implemented a productivity standards program that places time limits on the order selector [2] positions in its “Perishable” warehouse, requiring the employees in that job classification to fill a given order in a given amount of time. The program further provides that an employee who fails to reach these goals is subject to progressive discipline, including counseling, observation/training audits, [3] suspension, and termination. The order selector position is the only job classification subject to the time standards. The employees in that position are represented by the Teamsters' Union Local 688. Plaintiff, as a member of the Union, must use his seniority to “bid” out of his order selector job to other available jobs.

Since the productivity standards program was instituted, Plaintiff has been unable to meet the production goals and has been required to attend a training class on proper body mechanics. He also has received formal counseling, training audits, a verbal warning, a written warning, two one-day suspensions, and two three-day suspensions.

Plaintiff successfully bid out of the order selector position into warehouse work, loader positions, and cleanup work—classifications not subject to the productivity standards program—for four weeks in 1994. According to an affidavit of Defendant's corporate counsel, Plaintiff also bid out of the order selector classification into the cleanup classification from August 12, 1995, to February 29, 1996, the date the affidavit. Plaintiff's performance in these jobs has been acceptable.

In his two-count complaint, Plaintiff alleges that he is disabled under the Missouri Human Rights Act, Mo.Rev.Stat. §213.010 (“MHRA”), and the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq. (“ADA”), but could perform his work as an order selector if granted the “reasonable accommodation” of reduced time standards or new time standards that take “proper body mechanics” into consideration. Plaintiff specifically alleges that he suffers from several disabilities, including two bulging discs in his back, torn cartilage of his left knee, and medial epicondylitis of his left elbow.

Defendant argues in its motion to dismiss that the pleadings establish that Plaintiff is (a) not “disabled” within the meaning of the ADA, and (b) not qualified to perform the essential functions of his job, either with or without a reasonable accommodation. In its motion for summary judgment, supported by affidavits and exhibits, Defendant additionally argues that it has reasonably accommodated Plaintiff, counseling him when he could have been discharged, offering him a back brace, never assigning him to work outside his physician-imposed restrictions, and allowing him to miss 37 weeks of work without penalty. Defendant has not made the only accommodation requested by Plaintiff—exempting him from the productivity standards program. Defendant further argues that Plaintiff's claims under the MHRA are preempted by Section 301(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. §185(a).

Plaintiff opposes Defendant's motions, submitting an affidavit and exhibits in support of his opposition.

Discussion

A. Motion for Summary Judgment. Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment if all of the information before the court shows “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue of material fact is genuine if it has a real basis in the record; and, a genuine issue of fact is material if it “might affect the outcome of the suit under the governing law.” Hartnagel v. Norman, [58 EPD ¶41,269] 953 F.2d 394, 395 (8th Cir. 1992) (citations omitted).

The initial burden is on the moving party to clearly establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). All disputed facts are to be resolved, and all inferences are to be drawn, in favor of the nonmoving party. Kopp v. Samaritan Health System, Inc., [63 EPD ¶42,745] 13 F.3d 264, 269 (8th Cir. 1993).

B. Plaintiff's ADA Claim. “The ADA prohibits employment discrimination ‘against a qualified individual with a disability because of the disability of such individual.’” Price v. S-B Power Tool, [2 ADD ¶2-160] 75 F.3d 362, 364 (8th Cir. 1996) (quoting 42 U.S.C. §12112(a)), petn. for cert. filed, 64 U.S.L.W. 3765 (U.S. Apr. 29, 1996) (No. 95-1782). “To establish a prima facie case under the ADA, a plaintiff must show that: (1) he or she is a “disabled” person within the meaning of the ADA; (2) he or she is qualified to perform the essential function of the job (either with or without reasonable accommodation); and (3) he or she has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises.” Aucutt v. Six Flags Over Mid-America, Inc., [68 EPD ¶44,108] 85 F.3d 1311, 1318 (8th Cir. 1996). See also Price, 75 F.3d at 364-365 (“burden shifting framework” identified in McDonnell Douglas v. Green, [5 EPD ¶8607] 411 U.S. 792 (1973), may be used to establish a prima facie disability discrimination case under the ADA).

A disability under the ADA is defined as: (a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. 42 U.S.C. §12102(2)(A) and (C).

[Major Life Activity]

Plaintiff's back, knee, and elbow injuries are undisputed. The question, however, is whether these injuries resulted in an impairment that limits one or more of Plaintiff's “major life activities,” or are regarded as having resulted in such an impairment.

The ADA does not specifically define the term “major life activities.” Aucutt, 85 F.3d at 1319. The Equal Employment Opportunity Commission, however, has issued regulations to implement Title I of the ADA. Id. Those regulations define “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” Id. (quoting 29 C.F.R. §1630.2(i)). Working is a “major life activity.” On the other hand, “[a]n impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one.” Wooten v. Farmland Foods, [2 ADD ¶2-045] 58 F.3d 382, 386 (8th Cir. 1995) (quoting Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 723 (2d Cir. 1994), cert. denied, 115 S.Ct. 1095 (1995)). The regulations specifically provide that an “inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. §1630.2(j)(3)(i). Thus, “‘working’ does not mean working at a particular job of [the employee's] choice.” Wooten, 78 F.3d at 386.

The particular job in Wooten was a hamboner. The plaintiff's physician had restricted him to light duty work with no meat products and no work in a cold environment. Jobs which would accommodate those restrictions were unavailable at Farmland Foods. Id. Finding that plaintiff's impairments only prevented him from “performing a narrow range of meatpacking jobs,” the Eighth Circuit Court of Appeals concluded that the plaintiff had not been discriminated against because of his disabilities, which were perceived to be permanent but did not substantially limit his major life activities. Id.

Similarly, in another ADA case, the Eighth Circuit Court of Appeals held that an employee having difficulty in completing a mandatory employee obstacle course without severe pain “hardly [makes] the requisite showing that his medical condition substantially limited his overall employment application.” Aucutt, 85 F.3d at 1319 (citing Bolten v. Scrivener, Inc., [1 ADD ¶1-174] 36 F.3d 939, 943 (10th Cir. 1994), cert. denied, 115 S.Ct. 1104 (1995)). In Bolten, the plaintiff, as in the instant case, was an order selector and had a work-related injury that prevented him from performing that job. Id. at 941-944. Affirming the trial court's grant of summary judgment to a defendant employer, the Tenth Circuit Court of Appeals held that the plaintiff failed to produce evidence demonstrating a “significant restriction in his ‘ability to perform either a class of jobs or a broad range of jobs in various classes.’” Id. at 944 (quoting 29 C.F.R. 1630.2(j)(3)(i)). See also Maulding v. Sullivan, 961 F.2d 694, 698 (8th Cir. 1992), cert. denied sub. nom. Maulding v. Shalala, 507 U.S. 910 (1993) (holding that plaintiff, a chemist whose ailment prevented her only from performing lab work, did not to have an impairment that substantially limited her employment as a whole).

In the instant case, Plaintiff works in a union shop which requires seniority to transfer into various jobs. (Plaintiff's Affidavit at ¶7, 8.) This process is called “bidding.” ( Id.) Plaintiff has been successful in bidding out of the order selector position to other positions which are not subject to the productivity standards program. ( Id.) Plaintiff successfully bid into these other jobs for four weeks in 1994. He also successfully bid into and worked as a loader during the weeks ending May 27, 1995, and July 29, 1995; successfully bid into and worked in the warehouse during the week ending July 22, 1995; and successfully bid into and worked cleanup from August 12, 1995, to at least February 29, 1996. (Kent Affidavit at ¶1, 6, 7; Plaintiff's Affidavit at ¶8; Magafas Affidavit at ¶7.) None of these jobs are subject to the time standards complained of by Plaintiff. (Kent Affidavit at ¶5; Magafas Affidavit at ¶5, 7.) Nor does Plaintiff allege that he is unable to perform any job other than the order selector position. Moreover, Defendant contends that Plaintiff's performance in jobs other than order selector has been acceptable, and that Plaintiff has not been subject to disciplinary action when working outside the order selector classification. (Kent Affidavit at ¶5; Magafas Affidavit at ¶8.)

Thus, the evidence is undisputed that Plaintiff is precluded only from “performing a narrow range” of jobs and that his medical problems do not “substantially limit” his overall employment opportunities. See Aucutt, 85 F.3d at 1319; Wooten, 58 F.3d at 386. Plaintiff has produced no evidence that he suffers an impairment that substantially limits his “major life activities.” Thus, Plaintiff has neither a disabling impairment nor a record of such impairment. And, Plaintiff does not claim that he is regarded as having such an impairment. Accordingly, his predicament is not one that the ADA is intended to protect against—“discrimination stemming not only from simple prejudice, but also from ‘archaic attitudes and laws’ and from ‘the fact that the American people are simply unfamiliar with and insensitive to the difficulties confront[ing] individuals with handicaps.’” School Board of Nassau County, Fla. v. Arline, [42 EPD ¶36,791] 480 U.S. 273, 279 (1987) (quoting S.Rep. No. 93-1297, reprinted in 1974 U.S.C.C.A.N. 6400).

[Essential Functions]

Even if Plaintiff were to be considered a disabled person within the meaning the ADA, he has nonetheless failed to establish the second element of a prima facie case of disability discrimination—that he is “qualified to perform the essential functions of the job (either with or without reasonable accommodation).” Aucutt, 85 F.3d at 1318.

42 U.S.C. §12112(a) mandates that: “No covered entity shall discriminate against a qualified individual because of a disability.” The term “discriminate” includes “[n]ot making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … unless such entity can demonstrate that the accommodations would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. §12112(b)(5)(A). A reasonable accommodation is (i) making existing facilities used by employees readily accessible to and usable by individuals with disabilities and (ii) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provisions of qualified readers or interpreters and other similar accommodations for individuals with disability. 42 U.S.C. §12111(9). An undue hardship is “[a]n action requiring significant difficulty or expense.” 42 U.S.C. §12111(10).

The productivity standards program was implemented to improve Defendant's competitiveness in the marketplace. (Kent Affidavit at ¶18.) The job of order selector mandated these time standards. The evidence is undisputed that Plaintiff is unable to meet these time standards. Plaintiff argues that he could meet the production standards if he was granted a “reasonable accommodation.” This requested accommodation is described by Plaintiff as being either a reduction of the time standards for him or Defendant's workforce in general or the creation of reduced time standards that take “proper body mechanics” into consideration. Plaintiff contends that he was instructed by Defendant and by his physicians on the proper body movements in performing work without placing undue stress on portions of his body, but he cannot use these proper body movements and meet the Defendant's time standards.

“In determining what kinds of accommodations are reasonable, courts are permitted to take into account the reasonable cost of any necessary workplace accommodation, the availability of alternatives therefor, or other appropriate relief in order to achieve an equitable and appropriate remedy. An unreasonable accommodation is one which would impose undue hardship on the operation of the program in question.” Wood v. Omaha School District, [1 ADD ¶1-100] 25 F.3d 667, 669 (8th Cir. 1994) (citing Arneson v. Heckler, 879 F.2d 393, 397 (8th Cir. 1989)). [4] Once a plaintiff makes a prima facie showing that a reasonable accommodation is possible, the burden shifts to the defendant to show that it is unable to accommodate the plaintiff. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995) (citing Manson v. Frank, 32 F.3d 313, 318-319 (8thCir. 1994)). “If the employer shows that the employee cannot perform the essential elements of the job, even with reasonable accommodations, the employee must rebut that showing with evidence of his individual capabilities.” Id.

Thus, reasonable accommodation of a police officer unable to satisfy two police department requirements—ability to effect a forcible arrest and ability to transfer into all positions in the department—was not required in Simon v. St. Louis County, Missouri, [34 EPD ¶34,420] 735 F.2d 1082, 1084-1085 (8th Cir. 1984), on the grounds that a disabled person may be required to meet legitimate physical qualifications essential to a job. “An employer need not reallocate the essential functions of a job, which a qualified individual must perform.” Benson, 62 F.3d at 1112-1113.

In a case directly on point, the Tenth Circuit Court of Appeals held in Milton v. Scrivener, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995), that production standards were an “essential function” of the employee's job. The employee was a grocery selector who sustained an on-the-job injury and was consequently unable to meet his employer's established time standards. His subsequent ADA claim was rejected. The Court noted that the uncontroverted evidence was that the employer's time standards were aimed at increasing efficiency and productivity. Id. at 1124.

Similarly, in the instant case, Plaintiff has presented no evidence to refute Defendant's claim, see Kent Affidavit at ¶18, that speed is essential to the order selector job. Moreover, Plaintiff has acknowledged that he is unable to meet the time standards and has not controverted the chart of his work achievement records submitted by Defendant. ( See Kent Affidavit at ¶6). “Slowing the production schedule or assigning plaintiff lighter loads would fundamentally alter the nature of plaintiff's warehouse operation, a change not demanded by the law,” Milton, 53 F.3d at 1125 (citing 29 C.F.R. Pt. 1630 App. §1630.2(p)), and is more accommodation than is reasonable for the employer, id. at 1124.

Plaintiff's proposed reasonable accommodation would require the Defendant to change the essential functions of the order selector position; such an accommodation is not required. See Id.; 29 C.F.R. Pt. 1630 App. §1630.2(o). Nor is Defendant required to make accommodations for Plaintiff that would violate the rights of other employees or would violate its collective bargaining agreement with the Union. Wooten, 58 F.3d at 386 (citing Mason v. Frank, 32 F.3d 315, 319 (8th Cir. 1994)).

Plaintiff's ADA claim is without merit.

C. Plaintiff's MHRA Claim. Plaintiff also presents a claim under the MHRA premised upon the same factual allegations as those asserted in his ADA claim. As argued by Defendant, however, his MHRA claim is preempted by Section 301(a) of the LRMA.

In Davis v. Johnson Controls, Inc., [1 ADD ¶1-097] 21 F.3d 866, 868 (8th Cir.), cert. denied, 115 S.Ct. 426 (1994), the Eighth Circuit Court of Appeals addressed a MHRA claim made by a employee who alleged that his employer wrongfully refused to allow him to return to work after a disabling back condition had improved. The Court noted that the resolution of the claim required interpretation of a collective bargaining agreement between the defendant employer and the union representing its employees. Accordingly, the Court concluded, the claim was preempted by Section 301(a) of the LRMA.

The resolution of Plaintiff's MHRA claim also requires the interpretation of the collective bargaining agreement between Defendant and Local 688, particularly the question of seniority rights, transfer provisions, and the enforcement of the productivity standards program—an issue already presented to and resolved by an arbitrator interpreting the terms of Articles 24 and 37 of the collective bargaining agreement. ( See Kent Affidavit, Exh. “C”.) His claim is thus preempted by Section 301(a) of the LRMA.

For the foregoing reasons,

IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is GRANTED. [Doc. 8.]

IT IS FURTHER ORDERED that Defendant's Motion to Dismiss is DENIED as moot. [Doc. 7.]

IT IS FINALLY ORDERED that a separate judgment shall be entered in favor of Defendant and against Plaintiff in the instant cause of action.

JUDGMENT

In accordance with the Memorandum and Order entered this same date in the above-named cause of action and incorporated herein,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment is entered in favor of Defendant Supervalu Holdings, Inc., and against Plaintiff Timothy Dierkes.