Anderson v. Coors Brewing Co.

• Decision Date: 30 June 1999
• Docket Number: DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,No. 98-1261,98-1261
• Parties: (10th Cir. 1999) BOBBIE R. ANDERSON,, v. COORS BREWING COMPANY,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1171

181 F.3d 1171 (10th Cir. 1999)

BOBBIE R. ANDERSON, PLAINTIFF-APPELLANT, v. COORS BREWING COMPANY, DEFENDANT-APPELLEE.

No. 98-1261

U.S. Court of Appeals, Tenth Circuit

June 30, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D.C. No. 97-CV-1857-N

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Mark A. Neider (John M. Connell with him on the briefs), of The Connell Law Firm, Denver, Colorado, for Plaintiff-Appellant.

K. Preston Oade, Jr. (Katherine J. Peck and Kelly M. Condon on the brief), of Holme, Roberts, & Owen, Denver, Colorado, for Defendant-Appellee.

Before Baldock, Kelly, and Murphy, Circuit Judges.

Baldock, Circuit Judge.

Plaintiff Bobbie R. Anderson appeals the district court's order granting summary judgment to Defendant Coors Brewing Company. Plaintiff's complaint alleged that Defendant terminated her because of her disability in violation of the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Plaintiff also alleged that she was discharged in retaliation for filing a claim with the Equal Employment Opportunity Commission (EEOC). Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

I.

Plaintiff suffers from multiple sclerosis (MS), a chronic nerve disorder for which no cure exists. As a result, Plaintiff suffers from numbness, pain, fatigue, cramps, blurred vision, fainting spells, forgetfulness, loss of balance and incontinence. Plaintiff's condition limits, among other things, her ability to lift heavy objects, work in a hot environment and stand for long periods of time.

On May 20, 1996, Defendant hired Plaintiff as a Temporary Production Operator (TPO). TPO positions may last no longer than 1,480 hours and persons filling the positions do not receive medical or dental benefits, life insurance or paid vacation time. TPOs are expected to work at a variety of locations throughout Defendant's brewery on an "as needed" basis. Although TPOs are not required to perform every job in the brewery without assistance, a TPO must be able to perform a wide variety of functions in a wide variety of conditions. For example, TPOs may be required to lift heavy objects, climb ladders, walk on suspended walkways, inspect cans, stack pallets, clear jams in the production line, and operate machinery in environments described as hot, cold, moist, damp, noisy and dusty.

While working for Defendant, Plaintiff worked above "the ovens" retrieving cans thrown from the conveyor system, on the loading docks making cardboard boxes, filling boxes with defective cans, retrieving empty pallets, placing boxes of cans on the pallets, taping the boxes, and labeling pallets. Plaintiff also worked as a can sorter. On June 28, 1996, Plaintiff missed work for what she described as flu-like symptoms. She returned the next working day. On July 2, 1996, Plaintiff's husband informed Defendant that Plaintiff was having work-related difficulties. Defendant's representantives met with Plaintiff to discuss her problems. She informed them that she suffered from MS and was being pushed too hard. Defendant referred Plaintiff to its medical center for evaluation and informed her that it would attempt to accommodate any work restrictions. The medical center sent Plaintiff to her own physician.

Plaintiff's physician, Dr. Henbest, placed her under several preliminary work restrictions which she reported to Defendant. Initially, Dr. Henbest suggested that Plaintiff be allowed to work in a cool environment; preferably less than eighty degrees Fahrenheit. Later, he opined that Plaintiff could not:

a. operate man lifts, forklifts, motor vehicles, or high-speed or dangerous machinery.

b. walk or stand more than twenty minutes per hour.

c. stoop, bend or twist more than ten times per hour.

a. lift over twenty pounds to a height of thirty inches more than ten times per hour.

b. push or pull over twenty pounds more than ten times per hour.

c. climb ladders, racks, etc.

d. work at unprotected heights over six feet.

e. work more than eight hours per day.

Plaintiff requested that Defendant accommodate her disability by allowing her to sit on a stool while she sorted cans, wear a camel back water bottle to control her internal heat, place a fan or other cooling device near her to control her external heat and to supply her with a safety harness when necessary. Defendant examined Plaintiff's work restrictions and her requests for accommodation and determined that she could not perform the functions required to work as a TPO. Therefore, on October 4, 1996, Defendant terminated her employment.

Plaintiff filed suit in the district court alleging that Defendant violated the ADA by terminating her because she suffered from MS. Plaintiff also alleged that Defendant terminated her because she filed a complaint with the EEOC. Defendant filed a motion for summary judgment arguing that: (1) Plaintiff was not disabled; (2) Plaintiff was not qualified for the position even with reasonable accommodation; and (3) Plaintiff failed to establish that Defendant's proffered reason for terminating her was pretextual. The district court determined that Plaintiff was not qualified for the position and that she failed to demonstrate that Defendant's reason for firing her was pretextual. Accordingly, the court granted Defendant's motion for summary judgment. The instant appeal ensued.

II.

A.

Plaintiff contends that the district court erred in granting Defendant's motion for summary judgment. We review the district court's grant of summary judgment de novo. Marx v. Schnuck Markets, Inc., 76 F.3d 324, 327 (10th Cir. 1996). Applying this standard, we examine the factual record and reasonable inferences drawn therefrom in a light most favorable to the nonmoving party. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). We will uphold the decision only if no genuine issue of material fact exists and the party is entitled to judgment as a matter of law. Marx, 76 F.3d at 327. A mere scintilla of evidence supporting the nonmoving party's theory does not create a genuine issue of material fact. Id. Instead, the nonmoving party must present facts such that a reasonable jury could find in its favor. Id.

In order to sustain a claim under the ADA, Plaintiff must establish that:

1. she is a disabled person within the meaning of the ADA;

2. she is qualified, i.e., she can, with or without reasonable accomodation perform the essential functions of her job; and

3. the employer terminated her because of her disability.

White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1998). The parties do not dispute on appeal that Plaintiff has provided evidence that she is disabled within the meaning of the ADA. Accordingly, we must determine whether she is "qualified" under the ADA.

We have adopted a two-part test for determining whether a person is qualified under the ADA. Milton v. Scrivener, 53 F.3d 1118, 1123 (10th Cir. 1995). First, we examine whether the individual can perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Id. Second, if we conclude that the individual is not able to perform the essential functions of the job at issue, we must determine whether any reasonable accommodation by the employer would enable her to perform those functions. Id.

In determining whether Plaintiff was qualified, the district court looked at the essential functions which must be performed by a TPO. Examining those functions, the district court concluded that Plaintiff was not qualified for the job. Plaintiff argues that the district court erred by defining the essential functions of her employ as those of a TPO. Plaintiff contends that she was hired as a can sorter, not a TPO. Thus, she argues, the district court should have limited its inquiry to the essential functions of a can sorter. We disagree.

The record clearly shows that Defendant hired Plaintiff as a TPO and assigned her to a can sorting line. She admitted as much in both her opening brief and her response to Defendant's motion for summary judgment. Plaintiff's argument is nothing more than an attempt to twist from the appellate record an issue of fact where none exists.

We also reject Plaintiff's argument that the district court should have considered only the essential functions of a can sorter position because she spent most of her time in that position. Plaintiff worked for Defendant for sixteen days. Although she spent the majority of her time on the can-sorting line, she worked in five different areas and performed a variety of tasks. Defendant requires TPOs to perform numerous tasks on an as needed basis for a period of approximately 185 days. The fact that Defendant spent the majority of her sixteen days on the can sorting line does not mean that Defendant narrowed her job description from TPO to can sorter. The district court properly considered the essential functions of a TPO in determining whether Plaintiff was qualified.

Plaintiff further contends that the district court's failure to limit its determination of essential functions to those of a can sorter effectively undermines the protections afforded by the ADA. The crux of this argument appears to be that the TPO position is so demanding that nobody can perform all of the functions of the job. Thus, Plaintiff contends that an employer may undermine the ADA by hiring people as a TPO and, upon learning that they are disabled, fire them under the guise that they are not able to perform the essential functions of the job. We disagree.

It is not the province of the court to undermine the legitimate operation of a production facility. Milton, 53 F.3d at 1124. In many situations, an employer may create a position, the nature of which, requires an employee to perform a multitude of tasks in a wide range of environments. The Seventh Circuit recently examined such a position. In Miller v. Illinois...