Bolton v. Scrivner, Inc.

• Decision Date: 09 November 1993
• Docket Number: No. CIV-93-364-A.,CIV-93-364-A.
• Citation: 836 F. Supp. 783
• Parties: Floyd BOLTON, Plaintiff, v. SCRIVNER, INC., Defendant.
• Court: U.S. District Court — Western District of Oklahoma

836 F. Supp. 783

Floyd BOLTON, Plaintiff, v. SCRIVNER, INC., Defendant.

No. CIV-93-364-A.

United States District Court, W.D. Oklahoma.

November 9, 1993.

COPYRIGHT MATERIAL OMITTED

Rick W. Bisher, Boettcher & Ryan, Oklahoma City, OK, for plaintiff.

Peter T. Van Dyke, James C. Chandler, Samuel R. Fulkerson, Lytle Soule & Curlee, Oklahoma City, OK, for defendant.

ORDER

ALLEY, District Judge.

The matter before the Court is a Motion For Summary Judgment by defendant, Scrivner, Inc. ("Scrivner"), pursuant to Fed. R.Civ.P. 56(c). Since plaintiff, Floyd Bolton ("Bolton"), has filed a response to defendant's motion, the matter is now ripe for decision. Based upon a review of the supporting and opposing briefs, their appendices and the relevant case law, the Court grants defendant's motion.

STATEMENT OF UNDISPUTED MATERIAL FACTS

Plaintiff Bolton, a 50-year-old man, had been employed by defendant Scrivner in the position of "order selector" at defendant's grocery warehouse in Oklahoma City since February 1989. Plaintiff has had several work-related injuries, the most recent of which occurred on October 17 and October 19, 1991 when both plaintiff's feet were accidentally injured by a co-worker. Plaintiff has not worked at his job since then. Scrivner's policy prohibits injured workers from returning to their positions unless they are found to be 100 percent fit by the company's medical doctor. Workers who are unable to return to work because of physical injury are eligible for unpaid leave of up to 24 months. Since October 1991, Bolton's job has been done by casual workers. This practice is permitted while regular workers are on leave under the collective bargaining agreement between Scrivner and the union representing Scrivner's workers, the Teamsters.

Bolton has been examined by several medical doctors regarding his physical condition before and since the October 1991 accidents. A medical doctor paid by Scrivner, Dr. Yvonne Fine, treated Bolton for injuries to his back in September 1991 and found him able to return to his job. In anticipation of a hearing before the Oklahoma Workers' Compensation Court regarding the injuries to Bolton's feet, both plaintiff and defendant hired medical experts to evaluate plaintiff's physical condition. In his evaluation, Bolton's expert, Dr. John Ellis, stated that Bolton had a permanent partial disability, due to various ailments, which affected his ability to work. However, Scrivner's expert, Dr. C.B. Pettigrew, reported that, despite the injuries, Bolton was not seriously disabled and should be able to return to his job. The court ultimately determined that Bolton was temporarily totally disabled and awarded him benefits from October 23, 1991 to March 20, 1992.

Bolton also applied for and received unemployment insurance benefits, effective August 9, 1992. In granting benefits, the Oklahoma Employment Security Commission referred to the evidence of Bolton's physical disabilities. The Commission stated that the reason for plaintiff's unemployment was his inability to pass Scrivner's physical. The Commission also noted that Bolton would be able to work with restrictions on the amount of standing and lifting he would be required to perform.

In July 1992, Bolton asked that he be allowed to return to his position. Scrivner then sent Bolton back to Dr. Fine, who, after conducting a general evaluation, requested that Bolton be given a back evaluation. Based upon her evaluation and the back tests, Dr. Fine believed that Bolton's multiple injuries rendered him physically unable to perform required tasks as order selector. These tasks included lifting cartons that weighed over 70 pounds and standing for lengthy periods of time on concrete.

Bolton disagrees with Dr. Fine's conclusion that he should not be allowed to return to his job. However, he has not obtained another opinion from a medical specialist hired by the union, an option offered by the collective bargaining agreement. Nor has plaintiff provided Scrivner with an evaluation by his own doctor stating that he has fully recovered and is able to function as the job description requires. Bolton did consult with his union local about his treatment by Scrivner, indicating his desire to return to work and his belief that Scrivner was unfairly preventing him from doing so because of Dr. Fine's recommendation. Both the union local and Bolton's counsel decided not to pursue plaintiff's disagreement through arbitration.

On January 13, 1993, plaintiff filed a complaint with the Equal Employment Opportunities Commission (EEOC), alleging that Scrivner denied him the right to return to his job due to his disability and age. Plaintiff subsequently received his right to sue letter from the EEOC on January 29, 1993. On March 2, 1993, plaintiff filed a complaint in this Court, alleging that his treatment by Scrivner and its policy of not allowing injured workers to return to their jobs violated both the Americans With Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), as well as state public policy. Bolton also alleged several state law causes of action, including conspiracy to commit fraud and workers' compensation retaliatory discharge.

SUMMARY JUDGMENT

Summary judgment is appropriate if the pleadings, affidavits and depositions "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). Any doubt as to the existence of a genuine issue of material fact must be resolved against the party seeking summary judgment. In addition, the inferences drawn from the facts presented must be construed in the light most favorable to the nonmoving party. Board of Education v. Pico, 457 U.S. 853, 863, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982). Nonetheless, a party opposing a motion for summary judgment may not simply allege that there are disputed issues of fact; rather the party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c) (emphasis added). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted).

Bolton has alleged that Scrivner's policy and practice with respect to injured and disabled employees and his own treatment by Scrivner in this case violate both the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq., and the Age Discrimination In Employment Act of 1967, 29 U.S.C. § 621, et seq., Scrivner asserts that Bolton has not made out a prima facie case under either federal cause of action. Essentially the same set of facts are used by Bolton to prove both claims. This overlap of facts puts plaintiff in a dissonant posture, as will be discussed below; because for success on his first claim he must be disabled and on his second claim, he must be able. These facts, and Scrivner's challenges to Bolton's legal conclusions, are the basis for this Court's analysis with respect to each statute.¹

A. Plaintiff's Claim Under the Americans With Disabilities Act (ADA)

The Americans With Disabilities Act (ADA) states that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (West 1993 Supp.). Plaintiff claims that defendant engages in a policy of discriminating against disabled workers by preventing them from returning to their jobs after a period of disability. In particular, plaintiff claims that defendant violates the ADA by refusing to provide a "reasonable accommodation" for his physical restrictions so that he may return to work. Scrivner argues that plaintiff should suffer a summary judgment because the ADA is inapplicable to Bolton. The Court agrees.²

The ADA defines a "qualified individual with a disability" 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) (West 1993 Supp.) In § 12102, "disability" is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2) (West 1993 Supp.). This definition of disability is essentially the same as that in the Rehabilitation Act of 1973, 29 U.S.C. § 706(8)(B). See Chandler v. City of Dallas, 2 F.3d 1385, 1391 (5th Cir.1993) ("The ADA defines a disability in substantially the same terms as the Act defines an individual with handicaps (now an individual with disability)."). In determining whether plaintiff is in fact disabled, the Court is guided by how this language has been construed under the Rehabilitation Act.

Defendant cites Welsh v. City of Tulsa, 977 F.2d 1415 (10th Cir.1992), to support its contention that the plaintiff is not handicapped under the ADA. Welsh involved an applicant for the position of firefighter who was rejected because of sensory deficits in his hand. The fire department declined to hire the applicant because his physical limitations would preclude satisfactory performance of essential fire duties. Id. at 1416. In determining whether Welsh was disabled under the Rehabilitation Act, the Tenth Circuit noted that there were two elements involved: first, impairment and, second, whether the impairment substantially limited one or more...