Justice v. Crown Cork and Seal Co., Inc.

• Decision Date: 03 June 2008
• Docket Number: No. 07-8036.,07-8036.
• Citation: 527 F.3d 1080
• Parties: David M. JUSTICE, Plaintiff-Appellant, v. CROWN CORK AND SEAL COMPANY, INC., a Pennsylvania corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

527 F.3d 1080

David M. JUSTICE, Plaintiff-Appellant, v. CROWN CORK AND SEAL COMPANY, INC., a Pennsylvania corporation, Defendant-Appellee.

No. 07-8036.

United States Court of Appeals, Tenth Circuit.

June 3, 2008.

Richard C. LaFond, (Jay Dee Schaefer, Laramie, Wyoming, with him on the briefs), LaFond & Sweeney, LLC, Denver, CO, for Plaintiff-Appellant.

Tracy A. Miller (Christopher J. Meister with her on the brief), Ogletree, Deakins, Nash, Smoak and Stewart, P.C., Phoenix, AZ, for Defendant-Appellee.

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff-Appellant David Justice filed suit in federal district court under the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., alleging that his employer, Defendant-Appellee Crown, Cork, & Seal, Co. (Crown) discriminated against him on the basis of his physical impairment. The district court granted summary judgment to Crown, concluding that (1) Justice failed to establish that he was disabled within the meaning of the ADA, a necessary element of his prima facie case; and (2) the evidence showed that Justice posed a "direct threat" to workplace safety. Justice now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court's grant of summary judgment to Crown and remand the case for further proceedings.

I.

Crown owns and operates a plant in Worland, Wyoming, that produces aluminum beverage cans. Justice began working as an electrician at the Worland plant in September of 1989, and worked there without difficulty for nearly ten years. In his position as an electrician, Justice was required to work regularly around large machines, including power presses, cutters, conveyors, ovens, spray machines, unwinders, and lubricators. Justice was also required to use hydraulic and electric lifts, climb ladders, and navigate catwalks suspended above the floor of the plant, all of which were outfitted with safety rails. When working at heights, Justice and other employees of the Worland plant used standard safety equipment such as waist belts and harnesses.

In March of 1999, Justice suffered a stroke that impaired his ability to see, speak, walk, balance, and care for himself. Justice's doctors withheld him from returning to work for a short period of time. After intense rehabilitative therapy, Justice regained his ability to perform many of his life activities but suffered permanent impairment to his ability to balance. Justice also continued to suffer from vertigo, or a feeling of movement when there was none. Though these conditions caused Justice to walk with an unstable gait and otherwise appear unsteady, he was able to adapt and was in actuality more agile than he appeared, experiencing little difficulty with walking and standing. He was eventually released to return to work. The medical release set forth several restrictions: "He should not work at heights on ladders or scaffolding. His balance is impaired." Aplt. App'x at 610.

Upon Justice's return to work, Crown initially did not require him to engage in any activities in violation of his medical restrictions. Justice was scheduled alongside other electricians who could perform any tasks that he could not perform due to his restrictions (which occurred infrequently). He was also permitted to work the day shift with reduced hours. While Justice was working under these conditions, Crown did not observe any safety problems with his performance and considered him "a valuable employee" who "could contribute to the company." Id. at 451.

Justice's treating neurologist, Dr. Roger Williams, reexamined him on an annual basis. Following his May 5, 2000 examination of Justice, Dr. Williams opined that Justice had reached maximum medical improvement, and recommended that Justice "continue work restriction[s] that relate to working at unprotected heights, such as on ladders or scaffolding. Working on stepladders no higher than six feet should be relatively safe." Id. at 208. After examining Justice on May 14, 2001, Dr. Williams again recommended that Justice "avoid working on tall ladders or at unprotected heights. Experience has shown he can work effectively and safely on shorter ladders and platform lifts." Id. at 210.

These restrictions notwithstanding, Justice was able to work safely in the Worland plant for approximately two years. A strike began on June 1, 2001, and lasted over eight months, until February of 2002. During this time, Justice did not work at the Worland plant. When Crown's employees returned to work, Crown initially refused to allow Justice and another employee with similar work restrictions to return. After Justice's union filed a grievance and Justice obtained a new work release from Dr. Williams, Crown permitted Justice to return to work in late March of 2002. Dr. Williams's March 2002 work release again recommended that Justice "should not work at unprotected heights. When on extension ladders, scaffolding, cherry pickers, etc., [he] should be restrained with a waist belt and strap." Aplt. App'x at 614.

After Justice returned to work at the plant, he was placed on the night shift, rather than the day shift he worked before the strike. Justice was also assigned a new supervisor, Frank Pacheco, who had not previously supervised Justice directly. Pacheco was unaware of the medical restrictions placed on Justice, and asked Justice to perform tasks that may have been outside his restrictions, such as accessing heights without protection. After observing Justice experiencing what Pacheco believed to be difficulties with balance, Pacheco wrote a memorandum on May 7, 2002, summarizing his observations. Pacheco also had a face-to-face meeting with the Plant Manager and Plant Supervisor about his concerns.¹

In early October of 2002, Richard Backlund and Brian Rogers, two of Crown's Area Managers, visited the plant. While there, they observed Justice acting in an unsteady manner, swaying, and having difficulty with his balance. Upon learning that Justice had previously been observed acting in a similar manner, the men became concerned for his safety.

On October 15, 2002, Backlund and Rogers held a conference call with several Crown employees, including the Plant Manager and Richard Mangus, the Worland plant's Department Manager for Human Resources, to review Justice's problems. During the call, they discussed their belief that Justice may pose a danger to himself and others at the plant. Following the conference call, Mangus met with Justice and informed him of Crown's concern that although he had not necessarily been working unsafely, "there was potential for injury to himself and others" due to Justice's vertigo and balance problems. Id. at 532. Justice was then placed on an involuntary leave of absence pending further medical evaluation. Crown scheduled an appointment for Justice with a neuropsychologist, but Justice did not attend, stating that he wanted to see Dr. Williams first. Dr. Williams reexamined Justice on October 31, 2002, and concluded that Justice's "minor neurological complaints do not seem to limit his vocational abilities. It is still my opinion that he should not put himself at unnecessary risk, such as working at unprotected heights or in unprotected fashion around hazardous machinery." Id. at 212.

Following Dr. Williams's examination, Justice attended a December 2, 2002 functional capacity evaluation (FCE) with physical therapist Rhonda Wakai. Ms. Wakai prepared an initial report of the FCE on December 9, 2002. Though Justice generally performed well on the tests that Ms. Wakai administered, she did note some concerns: "it is recommended that Mr. Justice utilize safety equipment as is standard to the industry when accessing heights, particularly when balance is required. This would include open beams, scaffolding, ladders, and other similar situations. This is in line with Dr. Williams' recommendations, as well." Aplt. App'x at 117. Based on her examination, Ms. Wakai concluded that Justice was able to work at the "very heavy" Physical Demand Level for an eight hour day according to the United States Department of Labor's Dictionary of Occupational Titles. Id. at 122, 124.

Because Justice's job description was not available at the time of the FCE, Ms. Wakai was unable to draw any conclusions about his ability to physically perform his job. After providing Ms. Wakai with a letter purporting to list the physical demands of Justice's job, Crown invited her to perform an on-site evaluation of Justice's workplace. Accompanied by Richard Mangus, Ms. Wakai toured the Worland plant and observed the areas where electricians were required to work. Whether this tour accurately outlined the requirements of the electrician position is unknown. Neither Justice nor a representative of his union accompanied Ms. Wakai on the tour, and Ms. Wakai did not see an electrician performing the tasks associated with the position during the tour. Following her visit to the Worland plant, Ms. Wakai prepared a report detailing the results of her on-site evaluation.

Ms. Wakai's visit to the Worland plant revealed a number of potential hazards that challenged her perception of her footing and her sense of balance:

slippery footing, the multiple level changes throughout the physical plant, the frequent tight turns in the catwalk area, the frequent need to crouch under structures, and the occasional need to crouch and make a turn at the same time, bouncy walking surfaces, protruding obstacles, and particularly in one area, the visual distraction of having a catwalk that is a grating type material with a very quickly moving object underneath....

Aplt. App'x at 126-27. Ms. Wakai noted that "the operators have taken many precautions to ensure worker safety." Id. at 127. Nonetheless, she recommended "that Mr. Justice be encouraged to seek employment that presents fewer obstacles to his physical safety." Id. She then left the final...