Brackin v. Int'l Paper

• Decision Date: 09 October 2012
• Docket Number: Civil Action No. CV-10-03444-CLS
• Parties: BARRY BRACKIN, Plaintiff, v. INTERNATIONAL PAPER, Defendant.
• Court: U.S. District Court — Northern District of Alabama

BARRY BRACKIN, Plaintiff,

v.INTERNATIONAL PAPER, Defendant.

Civil Action No. CV-10-03444-CLS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

Dated: October 9, 2012

TABLE OF CONTENTS

I. STANDARD OF REVIEW.............................................. 4

II. SUMMARY OF FACTS................................................ 5

A. Defendant's Union Agreement........................................ 5

B. Plaintiff's Employment History....................................... 6

C. David Mulligan's Arrival............................................ 7

D. EDGE Training Schedule............................................ 7

E. February 16, 2009 E-Mail............................................ 8

F. Remote Training Approval.......................................... 10

G. Job Description Change............................................ 10

H. Discussions With Melvin Sutton and Marvin Batts...................... 11

I. March 2, 2009 "Restrictions Review" Meeting.......................... 13

J. Plaintiff's March 3, 2009 "First Step" Grievance....................... 17

K. March 17, 2009 "Termination" Meeting............................... 18

L. May 1, 2009 EEOC Charge......................................... 19

M. Defendant's Response to Plaintiff's Grievance.......................... 20

N. Plaintiff's May 16, 2009 "Second Step" Grievance...................... 21

O. June 18, 2009 "Second Step" Grievance Meeting........................ 21

P. Period of Unemployment........................................... 22

Q. August 10, 2009 "Return to Work" Meeting........................... 23

R. August 13, 2009 "Return to Work" Memo............................. 23

S. August 17, 2009 Return to Work..................................... 25

T. July 14, 2011 EEOC Charge......................................... 27

III. MOTION TO STRIKE................................................ 27

A. Plaintiff's Estimate of Lost Overtime................................. 27

B. Rumor About David Mulligan's Motives.............................. 34

C. Samantha Gilland's Statements...................................... 36

IV. MOTION FOR SUMMARY JUDGMENT................................ 39

A. The Americans with Disabilities Act.................................. 39

B. Discrimination.................................................... 42

1. Prima facie case............................................... 42

a. Does plaintiff have a "disability" within the meaning of the ADA?............................................... 42

b. Was plaintiff a "qualified individual with a disability"?.......... 43

c. Did plaintiff suffer an adverse employment action?.............. 48

d. Did defendant inflict an adverse employment action upon plaintiff "because of" his disability?...................... 552. Pretext....................................................... 58

a. Direct evidence of pretext................................... 59

b. Circumstantial evidence of pretext............................ 61

C. Harassment...................................................... 68

D. Retaliation....................................................... 69

E. Failure to Accommodate............................................ 70

IV. CONCLUSION....................................................... 71

MEMORANDUM OPINION

Plaintiff, Barry Brackin, alleges that defendant, International Paper, engaged in disability-based employment discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA").¹ The case currently is before the court on defendant's motions for summary judgment,² and to strike portions of the declaration submitted by plaintiff in opposition to summary judgment.³ Upon consideration of the parties' briefs and evidentiary submissions, this court will grantin part and deny in part each of the motions.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 indicates that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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 (1986) (alteration supplied).

In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.

The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable [factfinder] to return a verdict in its favor.

Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal citations omitted, alteration suppled).

II. SUMMARY OF FACTS

A. Defendant's Union Agreement

Defendant is a producer of paper, packaging, and forest products that operates a facility known as the Courtland Mill in Courtland, Alabama.⁴ The hourly workforce at the mill is represented by the United Steelworkers International Union ("Union") in accordance with a collective bargaining agreement that covers the terms and conditions of employment, including, but not limited to, wages, seniority, and filling of vacant positions.⁵ Under that agreement, an employee who is off work due to an on-the-job injury continues to accumulate seniority for up to six years, and may eventually return to his former position or to a promotion, on the condition that he is capable of performing the essential functions of the job.⁶ In addition to any regular positions, defendant and the Union have agreed to permit limited temporary job assignments for hourly employees outside the line of progression.⁷ The collective bargaining agreement also provides a dispute resolution mechanism that allows represented employees to challenge management actions, including allegations ofdiscrimination, by filing a grievance.⁸

B. Plaintiff's Employment History

Plaintiff began working at the Courtland Mill in 1979.⁹ Throughout his more than thirty years of service,¹⁰ plaintiff was undisputedly an "excellent" employee.¹¹ After suffering two herniated discs in an on-the-job accident on June 19, 2003, however, plaintiff was forced to submit to back surgery in August of that year.¹² He was released to return to work with light duty restrictions on October 28, 2003,¹³ and issued permanent sedentary work restrictions more than two-and-a-half years later, in June of 2006.¹⁴ Defendant assigned him to positions that accommodated those restrictions.¹⁵

Under the terms of an agreement between defendant and the Union, defendant created the temporary position of Production, Services, and Distribution ("PS&D")Training Coordinator as an accommodation for plaintiff on February 8, 2007.¹⁶ While it was understood that plaintiff was responsible for assisting defendant with employee training, ensuring that employees were complying with training requirements, and maintaining training documentation,¹⁷ a formal, written job description for the PS&D Training Coordinator position did not exist.¹⁸

C. David Mulligan's Arrival

David Mulligan became the PS&D Manager for the Courtland Mill in October of 2008.¹⁹ Plaintiff alleged that he overheard Mulligan tell a coworker that he was there to clean up all the "low hanging fruit." Plaintiff interpreted that statement as meaning that Mulligan "was going to try to find ways to eliminate employees with work restrictions."²⁰ Mulligan, however, testified that the comment was a reference to the fact that he had much work to do, and that the statement "[was not] about trying to find things to do, [but about having] to prioritize [his] time."²¹

D. EDGE Training Schedule

In approximately 2006, defendant began to convert its facilities to the EDGE software program, a multi-million-dollar supply-chain initiative designed to integrate all of defendant's facilities into one operating model.²² Because the Courtland Mill was scheduled to start the EDGE program in August of 2009,²³ David Mulligan claimed that he identified EDGE training as a "significant need" of the PS&D Department for 2009.²⁴ As a result, Courtland Mill employees were to be trained on EDGE to ensure their proficiency before the implementation of the program.²⁵ Employees responsible for training crew members and being a resource on EDGE were identified as "power users," and scheduled to attend a specialized "EDGE Power User" training at defendant's corporate headquarters in Memphis in late spring or early summer of 2009.²⁶ Because plaintiff was the PS&D Training Coordinator, he was among the members of the PS&D Department chosen to attend the training.²⁷ Thus, plaintiff made reservations and prepared to travel to Memphis.²⁸

E. February 16, 2009 E-Mail

As a consequence of his back injury, plaintiff occasionally experienced flare-ups of chronic pain.²⁹ After one such flare-up in January of 2009, plaintiff's treating physician believed that he might need further treatment, including surgery.³⁰ Because those treatments were to be scheduled through defendant's medical provider and approved through its worker's compensation process, defendant had knowledge of plaintiff's medical condition.³¹ Even so, plaintiff sent the following electronic mail (e-mail) message to David Mulligan on February 16, 2009:

I just wanted to give you the courtesy of letting you know that my back problems have escalated[,] and I'm now going to physical

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