Birch v. The Pepsi Bottling Group, Inc.

• Decision Date: 02 May 2002
• Docket Number: Civil No. AMD 02-308.
• Parties: Jeanne BIRCH, Plaintiff v. THE PEPSI BOTTLING GROUP, INC., Defendant
• Court: U.S. District Court — District of Maryland

207 F.Supp.2d 376

Jeanne BIRCH, Plaintiff v. THE PEPSI BOTTLING GROUP, INC., Defendant

Civil No. AMD 02-308.

United States District Court, D. Maryland.

May 2, 2002.

Beth Pepper, Law Office, Baltimore, MD, for plaintiff.

Henry Morris, Jr., Anne M. Hamilton, Savalle C. Sims, Arent Fox Kintner Plotkin and Kahn PLLC, Washington, DC, for defendant.

MEMORANDUM

DAVIS, District Judge.

This case involves claims of disability discrimination and breach of contract and is here on the basis of federal question jurisdiction, Jeanne Birch ("plaintiff" or "Birch") has brought this case against her former employer, The Pepsi Bottling Group, Inc. ("Pepsi" or "defendant"), alleging violations of the American with Disabilities Act, 42 U.S.C. § 12112(a) and (b), breach of an implied contractual duty not to imperil the employee, and breach of contract. Now pending is defendant's motion to dismiss or in the alternative, for summary judgment. No scheduling order has issued and no discovery has been taken, but the parties have filed comprehensive memoranda, accompanied by relevant exhibits; no hearing is needed. Local R. 105.6. For the following reasons, defendant's motion shall be granted in part and denied in part.

(i)

In the present case, the motion to dismiss is treated as one for summary judgment as documents outside the pleadings are included in the record. See FED. R. CIV. PROC. 12(c); Crowley v. Fox Broadcasting Co., 851 F.Supp. 700, 700 n. 1 (D.Md.1994). Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). Of course, the facts, as well as justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indust. Co v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987).

(ii)

The following account of material facts, drawn primarily from the Complaint, is set forth in the light most favorable to plaintiff, the nonmovant. Birch is "a person with a mental impairment that substantially limits a major life activity." Complaint, ¶ 9. On or about May 10, 1979, Birch began her employment with defendant in Baltimore. From that date through late September 2000, she held a variety of cleaning and operating jobs in different departments of Pepsi's Baltimore plant. In late September 2000, Birch began a new assignment as a sanitizer, which requires cleaning machines and equipment. On October 27, 2000, Birch injured herself on the job, allegedly due, in part, to Pepsi's "wanton and gross negligence." Specifically, Birch was injured while cleaning a turn table in the palletizer area of the plant. Birch entered the palletizer area and as she attempted to clean one of the five turn table machines, the machine energized and turned, catching Birch's upper leg between the turn table and the full pallet conveyor. Birch was caught in the machine for some period of time before her co-workers responded to her cries for help. As a result of her accident, Birch suffered post-traumatic stress disorder.

Birch requested modification of her job duties during her transition back to work after her accident. She alleges that defendant's representatives met with Birch and her counselor, Ms. Weber, on March 8, 2001, and orally agreed that, at first, Birch would help the support staff in the office doing a variety of clerical and related tasks. Then Birch would work in the production area, sweeping floors and getting used to the atmosphere of the plant but would not clean machines. Finally, Birch would work on the third shift as a sanitizer, cleaning the machines in the production department except those in the palletizer area. The parties agreed that this step-by-step plan would be implemented in accordance with Birch's health and progress in recovering from the trauma associated with her accident in the palletizer area. Defendant agreed that Birch would not lose her job.

On March 15, 2001, Birch returned to work to help the office staff with filing, copying, and to run errands. On or about May 1, 2001, Birch returned to the production area; there, she swept and cleaned the floors. On or about May 20, 2001, Birch returned to the third shift and performed her required duties, including cleaning the machines in the production department, except those in the palletizer area.

On or about June 25, 2001, defendant insisted, as a condition of her continued employment, that she clean the machines in the palletizer area except for the particular turn table in which she had been injured. Birch had not recovered sufficiently from her injuries to comply with the assignment, and she repeatedly asked defendant to relieve her of that responsibility. Defendant denied Birch's requests. On or about July 6, 2001, Birch filed a grievance with Sean Cedenio, a representative of her union, Teamsters Local 570, asking that defendant allow her to work as a sanitizer and exempt her from working in the palletizer area because of her illness. Specifically, the grievance states: "The Company refused to allow me to work due to my present mental/physical condition which resulted from an on the job injury at Pepsi." Decl. of Sean Cedenio ¶ 4. To resolve the grievance, Birch asked defendant to "return me to work and pay me for all lost time. My present condition allows me to perform the major function of my job requirements. Please provide this reasonable accommodation to me." Id. ¶ 5. Defendant replied in the following manner: "This matter is currently being handled by the company's third party workers comp[ensation] agency and Jeanne Birch's attorney." Id. ¶ 6.

On July 17, 2001, Cedenio and Birch attended a meeting with David Wilson, Pepsi's Human Relations Manager. Id. ¶ 7. At the meeting, the company merely reiterated its position that the matter was being handled through its workers' compensation processes and refused to discuss it further. Id. Cedenio considered this response to be a denial of the grievance as defendant did not return Birch to her former position. Id. According to Birch, by attending the meeting, which was held pursuant to step three of the grievance procedures in the collective bargaining agreement ("CBA"), Birch exhausted the CBA's grievance process. Id.; Def.'s Ex. A. at Article XIII § 3 (Collective Bargaining Agreement). After the grievance process was completed, Cedenio advised Birch that she had the option of pursuing her request for an accommodation with the Equal Employment Opportunity Commission. Decl. of Sean Cedenio ¶ 8. To date, although the parties refer to Pepsi as Birch's "former" employer, defendant has taken no formal action under the CBA or otherwise to demote, layoff, transfer, discharge, or relieve Birch from her employment. Id. ¶ 10.

The Collective Bargaining Agreement

Birch was a member of a collective bargaining unit represented by Local Union No. 570 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America ("Union"). The Union and defendant were parties to the CBA covering members of Birch's bargaining unit. Decl. of David T. Wilson ¶¶ 5-6 (Human Resources Manager). Various provisions of the CBA are relevant to Birch's claims against defendant. Article I, Section 1 recognizes the Union as the "sole collective bargaining agent with respect to hours, wages and other conditions of employment for all [covered] employees." Def.'s Ex. 1, at 4.

Article V acknowledges that defendant retains all normal and inherent rights to manage the company, including the right to "assign work to such employees in accordance with the requirements determined by management," "to make and enforce safety rules," "to transfer, promote or demote employees, or to lay off, terminate or otherwise relieve employees from duty for lack of work or other legitimate reasons," and to discharge employees in its sole discretion, provided that the discharge is for just cause. Id. at 6-7. Article XXIV, Section 1 sets forth defendant's promise to "establish and maintain conditions of health and sanitation in conformity with all state and federal laws applicable to the plant." Id. at 23. Article V, Section 3, provides that when an employee's "physical and mental ability to perform his job assignment efficiently and safely is in question," d...