Nance v. Goodyear Tire & Rubber Co.

Decision Date23 May 2008
Docket NumberNo. 06-6563.,06-6563.
PartiesMarcia B. NANCE, Plaintiff-Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Tennessee, for Appellee. ON BRIEF: Carolyn J. Chumney, Memphis, Tennessee, for Appellant. Herbert E. Gerson, Timothy S. Bland, Thomas J. Walsh, Jr., Ford & Harrison, LLP, Memphis, Tennessee, for Appellee.

Before: BATCHELDER, MOORE, and COLE, Circuit Judges.

COLE, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, J. (pp. 558-64), delivered a separate opinion concurring in the judgment.

OPINION

R. GUY COLE, JR., Circuit Judge.

Plaintiff-Appellant Marcia B. Nance appeals the district court's grant of summary judgment to Defendant-Appellee Goodyear Tire and Rubber Co. ("Goodyear") on her claims alleging violations of the Americans with Disabilities Act, the Tennessee Handicap Act, and the Family and Medical Leave Act; retaliatory discharge, including violations of the Tennessee "whistleblower" law; wrongful and constructive discharge through alleged retaliatory conduct; outrageous conduct and intentional infliction of emotional distress in violation of Tennessee common law; and breach of a common law duty of good faith and fair dealing. For the following reasons, we AFFIRM the judgment of the district court.

I. BACKGROUND
A.

Goodyear hired Nance on June 22, 1998, as a bargaining-unit employee in its Union City, Tennessee tire-manufacturing plant. Nance was initially employed in a bead-builder position, which requires the assembly of steel wires called "beads" that attach a tire to the wheel rim.

On November 15, 2000, Nance successfully bid under the collective bargaining agreement ("CBA") for a roll-changer position, which required her to load rubber strips onto a splicing machine. While working in that capacity, Nance injured her neck and shoulder and was diagnosed with cervical radiculopathy. On May 15, 2002, Nance's physician, Dr. William H. Knight, performed bone-fusion surgery on her cervical vertebrae by removing a bone from her hip and fusing it with two of the vertebrae in her neck. As a result of her injury, Nance took a medical leave of absence for approximately a year, from May 2002, the time of her surgery, until March 2003.

In anticipation of Nance's eventual return to work in 2003, Dr. Knight and a workers' compensation representative from Goodyear, Rebecca Duke, requested a functional capacity evaluation ("FCE") for Nance primarily to determine whether she could resume the roll-changer position she held before her injury. For several hours over a two-day period (February 3-4, 2003), Jacqueline Gilliam, a Goodyear physical therapist, performed a complete examination of Nance. The tests Gilliam conducted showed that Nance could lift a maximum of thirty pounds from the floor, twenty pounds overhead, and thirty pounds horizontally; that she could carry a maximum of twenty pounds in her right hand, twenty pounds in her left hand, and twenty-five pounds in both hands; that she could generate a forty-six to fifty-four pound "push-pull force;" and that she had a grip strength of seventy-three pounds in the right hand and seventy-seven pounds in the left hand. According to Gilliam, this meant Nance could tolerate "positional activities such as elevated work, forward bending, sitting and standing on a frequent basis, as well as rotational sitting ... rotation in standing, crawling, kneeling, crouching, repetitive squatting, sitting and standing, walking, stair climbing, step ladder climbing, balancing, and coordination." (Joint Appendix ("JA") 512.) However, Nance's injury limited "[v]ertical ladder climbing and material handling abilities." (JA 266.) Officially, she was placed in the "Light and Medium" Physical Demand Category because she was unable to lift weight continuously.

Comparing the physical demands of the roll-changer position and the FCE results, Gilliam concluded that Nance could not physically perform her duties in that position. Goodyear therefore disqualified Nance as a roll changer. After Nance's FCE, Gilliam searched all bargaining-unit jobs in the Goodyear plant and reported that none matched Nance's physical abilities. Following this report, Nance met several times with Union and Goodyear representatives to discuss further efforts to identify a position which she could perform. Nance and the various representatives reviewed lists of jobs in the plant, considering Nance's limits and each job's physical requirements. During these ongoing accommodation efforts, Gilliam learned that Nance was qualified and eligible to work as a stock trucker, which would require her to drive fork-lift trucks to transport materials within the plant. By letter of May 22, 2003, Gilliam opined to Human Resources representative Kathy Hill that Nance could perform the duties of that job.

Nance returned to work as a stock trucker on June 16, 2003. After a few weeks, Nance removed herself from that position because she claimed that Goodyear did not accommodate her physical limitations in a number of areas, and that vibrations from the fork-lift caused pain in her neck and shoulder. According to Nance, Goodyear failed to provide her with a strong arm-lift support to help her lift the side panel off the fork-lift to change the battery, a radio to communicate with her co-workers, or assistance from her co-workers to help change the battery. Her disqualification as a stock trucker became official at a meeting on October 3, 2003, at which Nance, a union steward, and two Goodyear representatives were present. Nance did not file a grievance over her disqualification, and she remained off work on another period of medical leave related to a hysterectomy performed on July 23, 2003.

On October 28, 2003, Gilliam re-analyzed the job tasks associated with the "Banbury" mixer machine-cleaner. Gilliam originally deemed Nance medically incapable of performing this job, but upon a second review, she concluded that Nance could perform the job if Goodyear implemented certain accommodations. The Banbury mixers produce the rubber compounds used in tires and, during their operation, discharge a steady trickle of oil down a trough and into a five-gallon bucket. Machine cleaners in the Banbury area are normally responsible for keeping the premises clean and free of debris. One of the responsibilities of a machine cleaner is to empty the bucket as needed, usually by carrying the bucket containing the discharged oil down an aisle and pouring it into a drum. The position is an established bargaining-unit position held at any given time by approximately eleven to fifteen Goodyear employees, working in three shifts over a twenty-four hour period. To accommodate Nance's lifting restrictions, Gilliam proposed adjusting some of the machine-cleaner duties and suggested the creation of special tools like a hand-held scoop, which Nance could use to remove oil from the bucket incrementally rather than waiting for it to become completely full. Gilliam also recommended that Goodyear give Nance a smaller scraper than those normally used to clean "fine baskets," containers that must be cleaned once every shift. Following Gilliam's recommendation, on November 3, 2003, Goodyear placed Nance in the machine-cleaner position. She was given a ladle consisting of a coffee can welded to a rod to remove oil in smaller increments and two teflon-coated pans to scoop out sludge from the oil buckets as needed. Goodyear also added a hook onto the side of the pans to eliminate the force necessary for emptying them.

Nance worked as a machine cleaner for four days, last reporting to work on November 7, 2003. According to Nance, she left the job because Goodyear did not permit her to perform the other parts of the machine-cleaner job, and instead limited her to emptying the oil buckets; because Goodyear refused to replace a safety gate and provide adequate lighting; and because she found the job mentally difficult. She also claimed that the position was neither meaningful nor safe.

After Nance left work, Dr. Louis M. Wells, her psychiatrist, diagnosed her on December 15, 2003, with adjustment disorder with mixed emotional features, panic disorder, and agoraphobia, an anxiety disorder involving the fear of certain settings that may present unexpected challenges or demands. As a result of his diagnosis, Dr. Wells wrote a note requesting that Nance be excused from work through January 6, 2004, when she was to be reevaluated. Shortly thereafter, Hill sent Nance a letter advising her that Goodyear was placing her on a medical leave of absence for her stated inability to work. Hill's letter reminded Nance that she was "responsible for reporting off to [her] resident department while [she was] on medical leave of absence."1 (JA 284.)

In the midst of all this, on January 9, 2004, Nance, her attorney Timothy Boxx, Goodyear's workers' compensation manager Jane Holland, and Goodyear attorney James Glasgow, Jr., met in an attempt to settle Nance's workers' compensation claims from her 2002 injury. In a discussion after the conference, Boxx contends that he told Holland that Nance would not return to work, though Nance claims that Boxx stated only that she would not return to the machine-cleaner position.

After January 9, 2004, Nance did not return to work, nor did she call in to report her absences. A few weeks later, on January 29 and 30, 2004, Lee McClure, then Goodyear's business center auditor for the plant's Banbury area, attempted to reach her at her home by telephone. The first time he left a voice message which Nance said she did not receive. On January 30, Nance picked up, but she told McClure that she "could not talk to him ... [a]nd [ ] hung up the phone." (JA 224.) Although Nance admits...

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