Burnett v. Western Resources, Inc., Civil Action No. 95-2145-EEO.

• Decision Date: 19 June 1996
• Docket Number: Civil Action No. 95-2145-EEO.
• Citation: 929 F. Supp. 1349
• Parties: Earl D. BURNETT, Plaintiff, v. WESTERN RESOURCES, INC., d/b/a Kansas Power & Light, Defendant.
• Court: U.S. District Court — District of Kansas

929 F. Supp. 1349

Earl D. BURNETT, Plaintiff, v. WESTERN RESOURCES, INC., d/b/a Kansas Power & Light, Defendant.

Civil Action No. 95-2145-EEO.

United States District Court, D. Kansas.

May 13, 1996.

Memorandum Denying Reconsideration June 19, 1996.

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Steven D. Horak, Overland Park, KS, for plaintiff.

Glenda R. Cantrell, David P. Mudrick, Jeffrey S. Southard, Western Resources, Inc., Topeka, KS, for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This matter is before the court on plaintiff's motion for partial summary judgment (Doc. # 44) and defendant's motion for summary judgment (Doc. # 49). In the instant suit, plaintiff brings three claims against defendant Western Resources, Inc. ("Western"). First, plaintiff contends that Western discriminated against him on the basis of a disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Second, he claims that Western subjected him to a hostile work environment in retaliation against him for exercising his rights under the ADA. Third, Count II of plaintiff's complaint states a claim for negligent infliction of emotional distress.¹

Plaintiff seeks partial summary judgment on liability. Defendant seeks summary judgment, contending that the undisputed facts establish that: (1) plaintiff is not disabled; (2) with or without reasonable accommodation, plaintiff was not a "qualified" individual; (3) plaintiff was not discriminated against; and (4) defendant's actions with respect to plaintiff's employment were made for legitimate, non-discriminatory and non-retaliatory reasons. The court has examined the parties' factual and legal submissions, as well as the applicable law, and is now prepared to rule. For the reasons set forth below, plaintiff's motion will be denied as moot and defendant's motion will be granted.

Factual Background

The following facts are uncontroverted or deemed admitted pursuant to Federal Rule of Civil Procedure 56(c) and District of Kansas Rule 56.1.

Plaintiff Earl D. Burnett was employed by defendant Western Resources, Inc., ("Western") on June 9, 1990, as a probationary gasman. Plaintiff is a member of United Steelworkers of America and performed work governed by the Union's collective bargaining agreement with Western. During his employment at Western, plaintiff held various other positions, including meter reader, pipe fitter, relief operator, and service person.

While in the position of meter reader,² plaintiff had an on-the-job injury to his right knee on April 16, 1991, but returned to work without restrictions on May 7, 1991. On July 8, 1992, plaintiff sustained another on-the-job injury to his right knee, which required surgery on September 2, 1993. He was released to return to work with no physical restrictions on October 5, 1992.

Plaintiff bid for and received the position of Pipefitter-Class B, beginning April 6, 1993. Pursuant to procedures in the collective bargaining agreement, plaintiff was bumped back to meter reader on April 28, 1994.

While in the meter reader position, plaintiff again twisted his right knee, but was released to return to work without medical restrictions on March 17, 1994. On May 3, 1994, plaintiff reported a right knee injury and was placed on light duty until August 22, 1994. Plaintiff was given continued light duty until September 26, 1994. Plaintiff's light duty restrictions included limitations on walking and climbing stairs and hills.

After his injury on May 3, 1994, plaintiff's ability to walk was limited to a mile a day, but steadily increased with time. Plaintiff told Western's company physician, Dr. Dugan, that his knee seemed to pop occasionally, and that walking, prolonged walking, stooping, and turning a certain way irritated his knee. Plaintiff requested medication for the pain. He stated in his deposition that the only affected activities, outside those required by the meter reader job, were: his ability to play sports, such as tackle football and basketball; getting in and out of the bathtub; squatting; and turning.

On August 22, 1994, Dr. Dugan permanently restricted plaintiff to walking no more than four hours per day. Plaintiff requested rehabilitation to get him back to full strength. On September 23, 1994, Bill Boothe, the supervisor of the Mission facility, met with members of Western's human resources staff to evaluate the permanent restrictions placed on plaintiff by Dr. Dugan and the essential functions of the meter reader job. Plaintiff's immediate supervisor, Mary Richardson, did not attend the meeting. The notes from the meeting refer to plaintiff's permanent duty restriction on walking and indicate that plaintiff had received psychiatric care.

Plaintiff was not made aware of this initial meeting, but he did attend a meeting on September 26, 1994, to discuss whether he could perform the essential functions of the meter reader position. Plaintiff admitted during his deposition that he stated at the meeting that he did not know whether he could walk four hours per day, as required by the meter reader position. Moreover, he does not controvert that he was under a permanent medical restriction of walking no more than four hours per day. Plaintiff now claims that he was capable of walking more than four hours per day because he subsequently performed the relief operator job which, he contends, required him to walk more than four hours per day. He also asserts that because he later performed the meter reader job, he would have been able to perform it at that time. He does not controvert, however, that his later return to the meter reader position was after the permanent walking restriction was lifted.

In any event, it was determined at the meeting on September 26, 1994, that plaintiff could not perform the essential functions of the meter reader position because he was permanently restricted from walking over four hours per day. Plaintiff was offered the following choices: (1) transfer to a vacant position for which he was qualified; (2) present medical evidence that he could perform the essential functions of the meter reader job; (3) take leave under the Family Medical Leave Act; (4) lay off; or (5) termination.

The only vacancy located in Mission, Kansas, was the job of warehouseman. Plaintiff indicated that he thought he was physically able to perform the job and bid for the job, but did not get it because he did not possess the requisite seniority. Western approached the Union and requested a waiver in the seniority policy so plaintiff could be placed in the warehouseman position, but the Union denied the request.

The remaining three company-wide vacant positions for which plaintiff was qualified were: (1) relief operator at defendant's Jeffrey Energy Center in St. Mary's, Kansas; (2) an operating and maintenance position in Ulysses, Kansas; and (3) fleet attendant in Wichita, Kansas.³ Defendant offered plaintiff his choice of the three vacant positions, along with a relocation package of benefits, and told him he had to decide within three days if he wanted to take one of the jobs, or he would be terminated. Plaintiff selected the relief operator position, but chose to commute approximately 224 miles per day, instead of relocating to St. Mary's. Plaintiff began working as relief operator on October 10, 1994, at a pay rate reduction from $14.91 per hour to $13.17 per hour.

At plaintiff's request, Dr. Berger evaluated plaintiff's knee and sent a letter to defendant dated November 10, 1994, stating that additional treatment would alleviate plaintiff's permanent restriction on walking more than four hours per day. Plaintiff received additional treatment from Dr. Dugan in February and March 1995. Plaintiff was released to regular duty with no restrictions and was returned full time to the meter reader position on March 31, 1995. On June 5, 1995, plaintiff received a salary increase from $14.91 to $15.51 per hour. On July 20, 1995, plaintiff was promoted from meter reader to service person, the position which he presently occupies with Western.

With respect to plaintiff's retaliation claim, plaintiff alleges that: (1) Bill Boothe, supervisor of the Mission facility, created a hostile working environment by making some gruff comments about his injury⁴ and by "harassing" plaintiff by discussing his foot attire with him and suggesting that it was causing plaintiff's blisters; (2) Jerry VanHooser, a supervisor at the Mission facility, treated him in a hostile manner in that he had a "nasty attitude," gave plaintiff a dirty look at a church social, and called him in and "lectured" him for not jumping fences; (3) Mary Richardson was impolite to him and gave him routes with more inclines and stairs; (4) subjecting plaintiff to "closer scrutiny" by requesting that plaintiff bring documentation of fitness for duty after being hospitalized for psychiatric treatment (this occurred during his tenure at the Jeffrey Energy Center); (5) denying plaintiff's bid for the job of building and ground maintenance at the Jeffrey Center; (6) failing to promptly give plaintiff his five year pin; (7) failing to place plaintiff's five year anniversary in the company newspaper; (8) failing to place plaintiff on the birthday list posted at the plant; (9) failing to place plaintiff on the seniority list; (10) failing to assign plaintiff a company vehicle on a permanent basis.

Standards Governing Summary Judgment

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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993)....