Riley v. Weyerhaeuser Paper Co.

• Decision Date: 05 September 1995
• Docket Number: No. 3:94cv11-MU.,3:94cv11-MU.
• Citation: 898 F. Supp. 324
• Parties: Eldon Wayne RILEY, Jr., Plaintiff, v. WEYERHAEUSER PAPER CO., Defendant.
• Court: U.S. District Court — Western District of North Carolina

898 F. Supp. 324

Eldon Wayne RILEY, Jr., Plaintiff, v. WEYERHAEUSER PAPER CO., Defendant.

No. 3:94cv11-MU.

United States District Court, W.D. North Carolina, Charlotte Division.

September 5, 1995.

Geraldine Sumter, Charlotte, NC, for plaintiff.

M. Daniel McGinn, Greensboro, NC, for defendant.

ORDER

MULLEN, District Judge.

This matter is before the Court upon motion of the Defendant Weyerhaeuser Paper Company for summary judgment. For the reasons stated herein, the Defendant's motion will be granted.

Plaintiff, a former employee of the Defendant, has filed this suit alleging that the Defendant discriminated against him by failing to accommodate his disability and terminating his employment, in violation of the Americans With Disabilities Act, 42 U.S.C. § 12112 et seq. ("ADA"). Plaintiff was hired by the Defendant at its Hovis Road facility in Charlotte in April of 1990. That facility manufactures container board packaging and is within the Containerboard Packaging Division of Weyerhaeuser Company. Hourly production and maintenance employees at that facility are represented by Local 1821 of the United Paperworkers International Union. Wages, hours and other terms and conditions of employment for bargaining unit employees are governed by a collective bargaining agreement ("CBA") between the Hovis Road facility and the Union. The Plaintiff was hired into a job covered by the CBA and was a Union member. At the time he was hired, the Plaintiff disclosed to Katie Barta, the Human Resources Director for the facility, that he was blind in one eye. After a training period, Plaintiff operated a 245 rotary die cutter, a machine with sharp rotating blades. After experiencing some blurred vision and dizziness which interfered with the quality of his work production, Plaintiff was sent to a physician and was ultimately diagnosed as having multiple sclerosis ("MS"). Plaintiff's physician concluded that Plaintiff could not safely operate or work around machinery. The Defendant contends that it then engaged in a process of considering reasonable accommodations, but was unsuccessful in identifying any reasonable accommodation that would enable the Plaintiff to perform the essential functions of an available position for which he was otherwise qualified. Accordingly, the Plaintiff was terminated. After seeking appropriate administrative remedies, Plaintiff filed the present complaint.

Defendant first argues that this Court lacks subject matter jurisdiction over Plaintiff's claim because Plaintiff failed to submit the matter of his termination to the mandatory grievance and arbitration procedures under the CBA. In making this argument, Defendant relies on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), where the Supreme Court held that a claim under the Age Discrimination in Employment Act (ADEA) could be subjected to compulsory arbitration pursuant to an arbitration agreement. In arriving at this holding, however, the Court noted that "not all statutory claims may be appropriate for arbitration," and, where Congress "has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue," a party may not be compelled to arbitrate his claim before seeking judicial remedies. Gilmer, 500 U.S. at 26-27, 111 S.Ct. at 1652, (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)). The Court noted that Congressional intent may be determined in the text of the statute, in its legislative history, or in an inherent conflict between arbitration and the statute's underlying purposes. Id. While the text of the statute in § 12112 does encourage the use of alternative means of dispute resolution where appropriate, including arbitration, the legislative history of the Act is unequivocal in expressing Congress's intent to preclude a waiver of judicial remedies:

The use of alternative dispute resolution mechanisms is intended to supplement, not supplant, the remedies provided by this Act. Thus, for example ... any agreement to submit disputed issues to arbitration, whether in the context of a collective bargaining agreement or in an employment contract, does not preclude the affected person from seeking relief under the enforcement provisions of this Act.

H.R.Rep. No. 485(III), 101st Cong., 2nd Sess. (1990) reprinted in 1990 U.S.C.C.A.N. pp. 267, 445, 499-500.

As Congress has clearly expressed its intent that the statutory rights and judicial remedies of the ADA cannot be waived, under Gilmer, the grievance and arbitration provisions of the CBA do not preclude Plaintiff from pursuing his judicial remedies. Accordingly, Defendant's argument that the Court lacks subject matter jurisdiction is without merit.

The ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual ..." 42 U.S.C. § 12112(a). To state a claim, a plaintiff must be a "qualified individual with a disability", defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).

The Fourth Circuit has developed two analytical frameworks for ADA claims. Vazquez v. Bedsole, 888 F.Supp. 727, 730 (E.D.N.C.1995). Most recently, in Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55 (4th Cir.1995), the court held that the McDonnell Douglas scheme of proof applies to claims brought under the ADA. 53 F.3d at 59. This framework is utilized in cases where the employer articulates a legitimate, non-discriminatory justification for terminating a disabled employee's employment. Vazquez, 888 F.Supp. at 730. However, when, as here, the employer relies upon the employee's disability in terminating the employee, a three-prong analysis is applied. See Id. This three-prong analysis was set forth in the case of Tyndall v. National Educ. Centers, 31 F.3d 209 (4th Cir.1994). Under the Tyndall analysis, the plaintiff has the burden of establishing a violation of the ADA by proving: 1) that he has a disability; 2) that he is otherwise qualified for the position in question; and, 3) that he was terminated based upon unlawful discrimination as a result of his disability. Doe v. University of Md. Medical Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.1995); Tyndall, 31 F.3d at 212; Vazquez, 888 F.Supp. at 731.

Under the ADA, a disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). The Plaintiff has been diagnosed with MS, a progressive disease of the central nervous system. His symptoms include vision and balance problems, as well as numbness and decreased sensation on his left side. Prior to the diagnosis of MS, Plaintiff also suffered from blindness in one eye. Plaintiff's physician restricted him from working around machinery or heights. The Court finds that Plaintiff has sufficiently established that he suffers from a disability.

Plaintiff next has the burden of establishing that he is otherwise qualified for the position in question. To determine whether the Plaintiff is "qualified", the Court must decide 1) whether he could perform the essential functions of his job, and 2) if not, whether any reasonable accommodation by the Defendant would enable him to perform these functions. See Tyndall, 31 F.3d at 212-13.

A reasonable accommodation is an accommodation that would "enable the employer's employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities." 29 C.F.R. Pt. 1630.2(o) App. (1994). This includes reassignment to a vacant position. 42 U.S.C. § 12111(9)(B). Employers must make "reasonable accommodation", unless the employer can show that the accommodation would impose an undue hardship on the operation of its business. 42 U.S.C. § 12112(b)(5)(A).

The Plaintiff bears the burden of demonstrating that he could perform the essential functions of his job with reasonable accommodation. Tyndall, 31 F.3d 209. It is undisputed that the Plaintiff's doctor concluded that due to Plaintiff's visual and balance problems the Plaintiff could not safely perform the essential functions of his 245 rotary die cutter position, nor could he work around any machinery, with or without reasonable accommodation. Thus, Plaintiff was not "qualified" for that position.

In general, only if an individual cannot perform his current position with a reasonable accommodation does an employer have to consider reassignment to a vacant position for which the individual is qualified. 29 C.F.R. pt. 1630, App. § 1630.2(o) (1994). An employer is not required to reassign a disabled person to a vacant position unless the disabled employee is qualified for that position. Howell v. Michelin Tire Corp., 860 F.Supp. 1488, 1492 (M.D.Ala.1994). A disabled person is qualified for a vacant position if he can perform the "essential functions" of the position, with or without reasonable accommodation. Id. It is important to note that the ADA does not require an employer to promote the disabled employee, bump another employee from his position or create a new position for the disabled employee. 29 C.F.R. pt. 1630, App. § 1630.2(o); White v. York International Corp., 45 F.3d 357, 362 (10th Cir.1995).

The Defendant has produced undisputed evidence of its efforts to consider reasonable accommodations, such as discussing with the Plaintiff, the plant superintendent, and the production manager what positions they believed Plaintiff could perform; preparing for the Plaintiff's physicians's consideration written job descriptions and videotapes of the positions Plaintiff believed he might be able to perform; contacting the Job Accommodation Network, a national resource...