Conant v. City of Hibbing, No. CIV. 99-303 RLE.
| Decision Date | 08 November 2000 |
| Docket Number | No. CIV. 99-303 RLE. |
| Parties | Albert James CONANT, Plaintiff, v. CITY OF HIBBING, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Albert James Conant, Pengilly, MN, pro se.
Kurt B Glaser, Glaser & Assoc, St. Paul, MN, Albert James Conant.
Larry Charles Minton, Minton Law Office, Hibbing, MN, for Hibbing Civ. Service Com'n, City of Hibbing.
This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, made in accordance with the provisions of Title 28 U.S.C. § 636(c), upon the Motion of the Defendant City of Hibbing ("Hibbing") for Summary Judgment.
A Hearing on the Motion was conducted on June 1, 2000, at which time Hibbing appeared by Larry C. Minton, Esq., and the Plaintiff Albert James Conant ("Conant") appeared by Kurt B. Glaser, Esq.
For reasons which follow, Hibbing's Motion for Summary Judgment is granted.
In December of 1993, Conant applied for a job with Hibbing as a General Laborer. According to Conant, as he and his fellow applicants progressed through the selection process, they were assigned points, in order to aid in the selection of the deserving candidate. Following the selection process, Conant was given one of the three highest point totals, and was, therefore, offered a position, subject to a pre-employment physical examination.
Conant's pre-employment physical examination was conducted by Dr. Charles W. Decker. Dr. Decker is a physician who had examined Conant, for a back injury, several years prior to Conant's application for the General Laborer position. See, Deposition of Charles W. Decker, at 13. As a part of the examination, Dr. Decker met with Conant for about fifteen minutes, during which time no physical tests were conducted. Id. at 12-13. As explained by Dr. Decker, the examination consisted primarily of x-rays, lab tests, an eye exam, a hearing exam, blood pressure measurements, and physical measurements. Id. at 12. In addition, Dr. Decker explained his role in the examination, as follows:
I would ask the * * * prospective employee about their [sic] general health. I would ask them if they have any problems with arms, legs or their back or if they've had any previous to this. I would ask them if they're on any medications and, if so, what they are. I'd ask them are they under a doctor's care for any condition or disease. If so, what is it. I'd [ask] them if they've ever had any serious illness such as heart trouble or ulcers or diabetes and so on. I'd ask them if they've had any previous surgery.
Following this examination, on December 10, 1993, Dr. Decker issued an employment recommendation to the Defendant that restricted Conant from lifting over 30 pounds, and from repeated squatting or bending. See, Affidavit of Larry C. Minton, Ex. A.
During his deposition, Dr. Decker admitted that, prior to the examination, he was never given a copy of the Essential Job Functions for the General Laborer Position. See, Decker Dep., at 10-11. However, according to Dr. Decker, he was aware of the general nature of the job, and the activities that were involved, because of his experience examining similar applicants,1 and his discussions with supervisors and employees of the Defendant. Id. at 11. As such, Dr. Decker's conclusions concerning Conant's work capacity were based primarily upon the doctor's knowledge of the job's requirements, and Conant's previous medical history. Id. at 12-13; 18-19.
As a result of the examination, Dr. Decker concluded that work restrictions were appropriate for Conant, because Conant had suffered a back injury during his prior employment as a welder. As explained by Conant:
The injury was substantial and [Conant] received a permanent worker compensation rating of 10.5% disability for his back for purposes of registering with the Minnesota Second Injury Fund. Conant 93:20 — 94:14. Mr. Conant had to temporarily change professions. He had a high school GED and had only known manual labor jobs. He was a self-taught welder and almost always worked two jobs. * * * After injury forced him to leave his welding job, he ran a bait store and tried being a realtor. Eventually the physical rigors of the bait store required him to leave that job, and real estate did not work out. He learned to live and work with the ever present pain from his back injury. Conant 5:3 — 25:5, generally; 45:4 — 46:9.
In 1992, two years prior to the 1994 pre-employment medical examination required by the City, Mr. Conant stopped seeing Dr. Decker. Until that time Mr. Conant saw him over 100 times over a two-year period for his back injury. * * * Dr. Decker's last notes about Mr. Conant's medical limitations in the file from 1992 included that he should not lift over 30 pounds and should not do any repeated squatting or bending. Those restrictions were only in place for six-months. Decker 21:1 — 22:8; discussing Exhibit B, bates pg. 394. Mr. Conant stopped seeing Dr. Decker in early 1992. Conant supra; 38:1 — 18. He began an intensive course of exercise which included swimming, walking, weight-lifting and racket ball. Conant 37:9 — 15; 41:18 — 43:23. His condition improved significantly to the point where he was able to resume his welding profession and took an additional job in the Twin Cities making pontoons to support his family. Lifting was integral to his job. Conant 45:4 — 46:9. Eventually he applied for the position with the City of Hibbing. Conant 48:15 — 53:13.
The Plaintiff is currently employed in a welding job which requires sometimes very heavy lifting, and repeated squatting and bending. In the six years since being denied employment with the City of Hibbing he is, physically, doing fine, and able to do his job. Conant 45:4 — 46:9.
Following his pre-employment evaluation by Dr. Decker, Conant scheduled another appointment in order to determine whether Dr. Decker would rescind his work restrictions. At that appointment, Dr. Decker suggested that Conant seek a Function Capacities Examination ("FCE") in order to test his physical abilities. Consequently, Conant went to Physical Therapist Kevin Schulte ("Schulte") to have the appropriate testing performed. After subjecting Conant to testing, which involved a variety of physical tests, and range of motion exercises, Schulte concluded that Conant was capable of performing all of the essential job functions that had been outlined by the Defendant, for the position of General Laborer. See, Minton Aff., Ex. C.
Thereafter, following the receipt of the results of Conant's FCE, a representative of the Defendant, Jeri Brysch ("Brysch") spoke with Schulte. During the conversation, Schulte advised that Conant's history of back problems could potentially resurface after three months of employment in the General Laborer Position. Minton Aff., Ex. D. As such, in spite of Schulte's opinion, that Conant was physically capable of performing the duties required of a General Laborer, the Defendant made the decision not to hire him.
Following this decision, on January 4, 1994, the Defendant sent Conant a letter, which informed him that he was not qualified for the position of General Laborer. See, Affidavit of Kurt B. Glaser, Ex. E. The letter, stated that Dr. Decker had advised the Defendant that Conant had a lifting limitation of 30 pounds, and that he was prohibited from engaging in repeated squatting or bending. Id. The letter went on to state:
The essential functions of the classification of general laborer require lifting in excess of 30 pounds and repeated squatting or bending. We have investigated the possibility of reasonable accommodation to structure the position in such a way as to avoid these requirements, but have determined that no such reasonable accommodation is feasible without undue hardship to the City. Specifically, removing the requirements of lifting over 30 pounds and repeated squatting and bending would negate the essential purpose of the position. Therefore, our conclusion at this point, based on present information, is that you are not qualified for the position of general laborer and we will be unable to proceed with the offer of employment to you.
On October 24, 1994, Conant filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging disability discrimination. Prior to this filing, Conant never requested that the Plaintiff treat him or classify him as a disabled person. Also, Conant never requested that the Defendant accommodate his disability during the course of the employment process. Subsequently, on September 18, 1997, the EEOC issued a probable cause determination as to Conant's charge of disability discrimination and, on November 24, 1998, the United States Department of Justice issued a Notice of Right to Sue.
On February 22, 1999, Conant filed his Complaint in this matter, which alleges that the Defendant violated the Americans with Disabilities Act ("ADA"). See, Complaint [Docket No. 1]. Thereafter, on April 28, 1999, Conant filed an Amended Complaint which, once again, asserted that the Defendant violated the ADA, while adding a claim of negligent infliction of emotional distress. See, Amended Complaint, [Docket No. 2]. The Defendant has moved for Summary Judgment on all of Conant's claims, and Conant opposes the Motion.
A. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light...
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