Braziel v. Loram Maintenance of Way, Inc., Civ. No. 3-95-388.

Citation943 F.Supp. 1083
Decision Date09 July 1996
Docket NumberCiv. No. 3-95-388.
PartiesAnthony A. BRAZIEL, Plaintiff, v. LORAM MAINTENANCE OF WAY, INCORPORATED, Defendant.
CourtU.S. District Court — District of Minnesota
943 F.Supp. 1083
Anthony A. BRAZIEL, Plaintiff,
Civ. No. 3-95-388.
United States District Court, D. Minnesota, Third Division.
July 9, 1996.

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James H. Kaster, John A. Fabian, III, Nichols Kaster & Anderson, Minneapolis, MN, for Anthony A. Braziel.

Joseph Walter Hammell, Linda M. Mealey-Lohmann, Dorsey & Whitney, Minneapolis, MN, for Loram Maintenance of Way, Inc.


ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, as authorized by Title 28 U.S.C. § 636(c)(3), upon the Defendant's Motion for Summary Judgment.

A Hearing on the Motion was held on January 25, 1996, at which time the Plaintiff appeared by John A. Fabian, Esq., and the Defendant appeared by Joseph W. Hammell, Esq.

For reasons which follow, we grant the Defendant's Motion for Summary Judgment.

II. Factual and Procedural Background

On July 7, 1989, the Defendant hired the Plaintiff as a machine operator, when the Plaintiff was 45 years old. The Defendant is engaged in the business of manufacturing and leasing railway maintenance equipment, and of providing trained personnel to provide rail maintenance services to railroads. As a machine operator, the Plaintiff was "responsible for operating and maintaining railway equipment in a safe and efficient manner." Affidavit of Linda Mealey-Lohmann, Exhibit C, Machine Operator Job Description. In that capacity, the Plaintiff worked on a rail grinding machine, which is a self-propelled train that is equipped with electric grinding motors which are used to grind steel rails into a proper shape. Affidavit of Robert Matthews, at ¶ 6.

On November 30, 1992, the Plaintiff was injured while assisting in the overhaul of a rail grinding machine. As a result of his injury — which occurred when a 4,000 pound piece of machinery fell upon his chest — the Plaintiff was hospitalized for nine days. The accident fractured several ribs, caused some swelling of his brain, and resulted in an undisclosed injury to his right shoulder.1

The Plaintiff contends that, during the course of his hospital stay, three of the Defendant's officials visited him, and that one of the three individuals — he cannot recall which one in particular — told him that he should not worry about a job because he was going to have one. Braziel Deposition at 70. The Plaintiff has conceded, however, that he does not specifically recall what was said to him with respect to his continued employment. Id. at 71.

The Plaintiff returned to work for the Defendant on January 18, 1993. According to his deposition testimony, he was reassured, shortly thereafter, concerning his employment. In this respect, he avers that Ralph Weber ("Weber"), who is the Manager of Safety and Environment in the Defendant's Risk Management Department, discussed his future employment with the Defendant on three occasions. Id. at 54. Although, with respect to two of those discussions, the Plaintiff believes that Weber may have been referring to "light duty" positions, he testified that Weber, in a third discussion, informed him that "he would find me something permanently to do." Id. at 60-65. The Plaintiff also asserts that James Wood, who was one of the three officials who visited him at the hospital, told him not to worry because he had a job. Id. at 73.2

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Upon his return to work with the Defendant, the Plaintiff was "assigned light duty work because of his injuries." Complaint at ¶ 10. The Plaintiff has alleged that, as his condition improved, "he was reassigned to jobs within his physical abilities and medical restrictions." Id. at ¶ 11. As related in his deposition testimony, the Plaintiff worked as a field clerk, for approximately one month, in order to relieve a vacationing employee, see Braziel Deposition at 46, and he worked as a machine operator for one week. However, rather than work a full shift in the machine operator position, he merely ran the rail grinding machine while the regular operator broke for lunch. Id. at 192-194. The Plaintiff also contends that he worked, for approximately two months, in the Defendant's research and development center performing tests on grinding stone. Id. at 342. In addition, his deposition testimony reveals that, after the accident, the Plaintiff assembled manuals, in three-ring binders, and delivered parts, by truck, to various locations. Id. at 175.

On April 13 and 14, 1993, the Plaintiff underwent a functional capacity evaluation in order to determine his physical capabilities and limitations. Upon evaluation, Mary Beth Purdie ("Purdie"), who is an Occupational Medicine Specialist, concluded that the Plaintiff's physical capabilities did not match the job requirements of the Machine Operator position, as the substance of those requirements had been related to her by the Plaintiff. In July of 1993, Dr. James R. Allen, who was the Plaintiff's treating physician, certified that the Plaintiff had reached Maximum Medical Improvement ("MMI") as of June 3, 1993.3

On July 8, 1993, shortly after Weber learned that the Plaintiff had reached MMI, he drafted a Memorandum in which he asked Doug Grant ("Grant"), who is the Defendant's Manager of Human Resources, and Matthews, who was then the Defendant's Director of Operations, whether they were aware of any job positions that would satisfy the Plaintiff's medical restrictions. The Memorandum stated as follows:

According to Dr. Michienzi, the company physician, Tony Braziel has now reached maximum medical improvement (MMI). The restrictions are outlined on the enclosed form R-33.

The form is pretty detailed, but the most significant restriction is that Tony cannot lift nor carry more than 55 Lbs, with a rarely lift or carry more than 45 to 50 Lbs at any one time.

Based on these restrictions, does either Operations or Human Resources have a permanent position available for Tony within the organization?

If so, please advise. If not, then Tony will need to be released from Loram employment, based on medical reasons and Wausau Insurance will take over payment of wages and determine whether or not training or other vocational type rehabilitation is recommended.

Affidavit of Linda Mealey-Lohmann, Exhibit J, Memorandum dated July 8, 1993.

Matthews has testified that, in response to this Memorandum, he contacted Dave Taylor ("Taylor"), who is the Defendant's Manager of Engineering, and George Anderson ("Anderson"), who is a Regional Manager of the Defendant. Matthews Deposition, at p. 10. Taylor advised that there were no positions available, and Anderson, who had previously supervised the Plaintiff when he worked as a field clerk, related that the Plaintiff had performed poorly at that position and had to be removed. Id. at 10-11.4 Grant responded to the Memorandum by informing Weber that the Department of Human Resources did not have any openings for a permanent position, nor did he anticipate any openings for the remainder of 1993.

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Affidavit of Linda Mealey-Lohmann, Exhibit K, Letter dated July 16, 1993.

On August 19, 1993, an opening was posted for the position of Operations Clerk. At his deposition, the Plaintiff testified that Weber and Bill Burg ("Burg"), who was the Defendant's Manager of Field Safety, encouraged him to apply for that position. The Plaintiff testified that it was his impression that Weber and Burg wanted him to get the job, and that is why they encouraged him to submit an application. With the assistance of a secretary employed by the Defendant, the Plaintiff submitted his application on August 25, 1993. Braziel Deposition at 150. On October 5, 1993, the Plaintiff was notified that the Defendant had decided not to fill that position.

On December 28, 1993, the Defendant terminated the Plaintiff's employment. According to the Plaintiff, he was summoned to Matthews' office, where Weber was waiting, and was told that his service was no longer needed. Id. at 349. Matthews then handed the Plaintiff a written termination notice, which provided as follows:

I have been informed by the Loram Risk Management Department that you have reached maximum medical improvement from your work-related injury.

Our department, as well as other departments in the company, have been asked to review the possibility of a permanent position which would incorporate the various physical restrictions that have been identified with your condition. After performing a thorough review of positions that might become available, we do not find any suitable positions that would be able to accommodate your physical restrictions that were determined by the physicians.

Therefore, Loram is severing your employment effective December 28, 1993. We will, however, pay you through January 7, 1994. Hereinafter, it is our understanding that you may be eligible for benefits under Minnesota's Workers Compensation laws.

Affidavit of Linda Mealey-Lohmann, Exhibit N, Termination Letter dated December 28, 1993.

The termination letter was signed by Matthews. After reviewing the letter, the Plaintiff testified to the following exchange:

Q: What happened after you read the letter?

A: I asked [Matthews] why I was being terminated.

Q: And then what did he say?

A: He didn't say anything. That's when Ralph Weber spoke up. He said, "We have to take into consideration your age and your disability." I said, "What does my age have to do with it?" I said, "I can work along with the 18-year-olds, younger guys than me, 12 hours a day. I can perform the job just as good as they can." He sat there and didn't say another word. He couldn't give me an answer.

Braziel Deposition, at pp. 351-352.

In turn, Weber...

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