Fraser v. U.S. Bancorp
| Decision Date | 28 September 2001 |
| Docket Number | No. CIV. 00-543-JO.,CIV. 00-543-JO. |
| Citation | 168 F.Supp.2d 1188 |
| Parties | Rebecca Ann FRASER, Plaintiff, v. UNITED STATES BANCORP, a federally insured banking corporation; et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
Craig Alan Crispin, Crispin and Associates, Portland, OR, Attorney for Plaintiff.
Jeffrey J. Druckman, Tamara E. Russell, Druckman & Associates, Portland, OR, Attorney for Defendants.
Michelle Renee Burrows, Kohler and Burrows, Portland, OR, Robert Thuemmel, Thuemmel & Uhle, Portland, OR, Attorneys for Counter-Defendant Rebecca Ann Fraser.
Plaintiff Rebecca Ann Fraser brings three claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and one claim under the parallel state statute, ORS 659.436, against her former employer, defendant U.S. Bank National Association ("the bank"), and a common law claim for intentional infliction of emotional distress against the bank and three individual defendants.
Defendants now move for summary judgment on all claims (#35). In response to the motion, plaintiff agreed to withdraw her claim for intentional infliction of emotional distress. That claim and all individual defendants are, therefore, dismissed.
The remainder of the bank's motion is narrowly focused on one essential element of plaintiff's ADA claims: whether she is "disabled" within the meaning of the ADA. Specifically, the question framed by the pleadings is whether during the relevant time, plaintiff had an impairment that "substantially limit[ed] a major life activity." For the reasons explained below, I conclude that plaintiff has failed to demonstrate the existence of a genuine issue of material fact as to whether she was disabled as defined. Consequently, the remainder of the bank's motion is granted.
Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). If the moving party shows that there are no genuine issues of material fact, the non-moving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir.1989).
The substantive law governing a claim determines whether a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir.1987). Reasonable doubts as to the existence of a material factual issue are resolved against the moving party. T.W. Elec. Service, 809 F.2d at 631. Inferences drawn from facts are viewed in the light most favorable to the non-moving party. Id. at 630-31.
Because the present motion addresses only the issue of disability, the parties have not explained the factual background giving rise to plaintiff's claims in any detail. The First Amended Complaint ("Complaint") alleges the following. Plaintiff alleges that she began employment for the bank on June 29, 1998, in the position of Senior Account Specialist for Fastline banking. At that time she informed her employer that she was diabetic. Shortly thereafter, she was promoted to Senior Account Specialist.
On November 16, 1998, plaintiff was informed by her supervisor, Jeff Erwin, that she could not eat at her desk. At 7:30 p.m.1 that day plaintiff recorded her blood sugar as "dangerously low 46 * * *." A few minutes later, her blood sugar dropped to 34. She wanted to eat some cookies at her desk, but first sought clarification from Erwin because of his "admonition." Complaint, ¶ 13. Plaintiff approached Erwin, explained the problem, and asked to eat at her desk. Erwin "declined to speak with her about her situation and told her to return to work." Plaintiff became disoriented, forgot how to leave the building, again asked Erwin for permission to eat something, he "responded negatively," and eventually plaintiff "went home and passed out." Complaint, ¶ 14.
Plaintiff filed a complaint with Erwin's supervisor, Joe Ledbetter. On November 18, 1998, Ledbetter asked plaintiff to meet with him, "indicat[ing] that he was investigating [her] complaint," but made her sit in his waiting area for seven hours. Plaintiff alleges that she is "unaware of any discipline which was given to Mr. Erwin." Complaint, ¶ 15.
Plaintiff alleges that from November 20, 1998, through March 3, 1999, she was subjected to retaliation for filing her complaint "including harassment, a change of assignment, a change of workstation and increased scrutiny." Complaint, ¶ 16 (listing various actions).
In January 1999, plaintiff asked for and was approved to take a leave of absence to install an insulin pump. Plaintiff alleges that she called in on each day of her absence, as required. According to plaintiff, "[d]espite the prearrangement and the written acceptance of the disability leave, on or about March 12, 1999, Plaintiff was terminated * * * while she was in the Diabetic Institute having her insulin pump installed." Complaint, ¶¶ 17, 18.
None of the above factual background is directly at issue in the present motion. Instead, the motion is limited to the issue of whether plaintiff's diabetes qualifies as a "disability" under the ADA and parallel state law. The ADA protects only those individuals whose impairments "substantially limit" a major life activity. 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.2(g)(1). "Substantially limits," as defined by the regulations, means the individual either is:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1). "Major life activities" mean "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).
In 1999, the United States Supreme Court clarified that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment * * *." Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). That ruling rejected the EEOC's "Interpretive Guidance," which stated that "'[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices.'" Sutton, 527 U.S. at 480, 119 S.Ct. 2139 (quoting 29 C.F.R. Pt. 163, App. § 1630.2(j)(1998))(superceded to reflect the Sutton ruling). In rejecting the EEOC's definition of disability, the Supreme Court noted that The agency guidelines' directive that persons be judged in their uncorrected or unmitigated state runs directly counter to the individualized inquiry mandated by the ADA. The agency approach would often require courts and employers to speculate about a person's condition and would, in many cases, force them to make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual's actual condition. For instance, under this view, courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes. Thus, the guidelines approach would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals. This is contrary to both the letter and the spirit of the ADA.
Sutton, 527 U.S. at 483-84, 119 S.Ct. 2139 (emphasis added).
Thus, disabilities must be evaluated "`with respect to an individual'" and "is an individualized inquiry." Sutton, 527 U.S. at 483, 119 S.Ct. 2139 (quoting Bragdon v. Abbott, 524 U.S. 624, 641-42, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)).
The parties mostly agree on the following facts. Plaintiff is a Type 1 (juvenile onset or insulin dependent) diabetic. Her diabetes is "uncomplicated," that is, so far she shows no risk of developing long-term complications such as blindness, vascular cardiac disease, or kidney failure. Defendants' Memorandum, Deposition of Darrell Lockwood, M.D. ("Lockwood depo"), pp. 13-14. On the other hand, plaintiff is what some call a "brittle diabetic" (although her doctor, Dr. Lockwood does not "personally use that term," Lockwood depo, p. 9), that is, her blood glucose level tends to swing high and low fairly rapidly. In 1992, plaintiff suffered a diabetic coma and since then, has been rated permanently partially disabled by the Social Security Administration and receives benefits.
It appears from the evidence, in particular Dr. Lockwood's testimony and chart notes, that historically, plaintiff has had significant difficulty controlling her blood glucose levels, at least in part because at times she failed to follow his advice and drank alcohol, did not exercise, did not monitor her blood glucose as instructed, and did not use insulin as instructed. The parties both rely on the following testimony from Dr....
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