Henderson v. Ardco, Inc.

• Decision Date: 05 December 2000
• Docket Number: No. 99-6407,99-6407
• Citation: 247 F.3d 645
• Parties: (6th Cir. 2001) Dana C. Henderson, Plaintiff-Appellant, v. Ardco, Inc., Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 645

247 F.3d 645 (6th Cir. 2001)

Dana C. Henderson, Plaintiff-Appellant, v. Ardco, Inc., Defendant-Appellee.

No. 99-6407

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 5, 2000

Decided and Filed: April 24, 2001

Appeal from the United States District Court for the Western District of Kentucky at Bowling Green. No. 97-00177, Joseph H. McKinley, Jr., District Judge. [Copyrighted Material Omitted] Steven D. Downey, THE LAW OFFICES OF STEVEN D. DOWNEY, Bowling Green, Kentucky, Glenn D. Parrish, Bowling Green, Kentucky, for Appellant.

C. Laurence Woods III, BROWN, TODD & HEYBURN PLLC, Louisville, Kentucky, for Appellee.

Before: BOGGS and GILMAN, Circuit Judges; and BECKWITH, District Judge^*.

BOGGS, Circuit Judge.

OPINION

In this diversity action, Dana Henderson appeals a grant of summary judgment to her employer, Ardco, Inc. ("Ardco"). Henderson alleges that Ardco violated Ky. Rev. Stat. Ann. §§ 342.197 and 344.040 (Michie 1997), which forbid retaliatory discharge for filing a claim for workman's compensation and employment discrimination against "a qualified individual with a disability." Below, Henderson also alleged gender discrimination, but has now abandoned this claim on appeal. Henderson sought $500,000 in past and future income and punitive damages, along with other monetary relief. For the reasons that follow, we reverse the district court's judgment regarding Henderson's disability claim.

I

Ardco runs a manufacturing facility in Elkton, Kentucky, Ms. Henderson's home, where it manufactures doors, particularly for commercial refrigerators. Henderson began working there in 1985, and for several years worked on the assembly lines making doors and doorframes. Henderson eventually obtained a welding position, for which she was paid an hourly wage of $9.66 in 1994. On July 14, 1994, Henderson injured her back and was forced to leave Ardco to recuperate. On Feb. 3, 1995, she returned with a doctor's note that included restrictions on her physical capacities; Ms. Henderson was not to stoop or bend, and she was not to lift more than 25 pounds or "40 pounds frequently."¹ Henderson was not allowed to return to work, and was told by plant manager Ed Baumann that: "You know what company policy is . . . you have to be 100 percent to work here." Ardco's "100% healed rule" appears to have been well-known and consistently applied, at least with regard to lifting restrictions, and is assumed to exist for purposes of summary judgment.

In July 1995, Henderson wrote to Ardco asking for any work consistent with her restrictions, and was told that Ardco had no "light duty work which you can perform with your medical restrictions." She claims there were jobs available she was not told about, but she never attempted to apply for any specific jobs at Ardco. Henderson did seek employment elsewhere, briefly working at the American Heritage factory and for a longer period at the local Piggly-Wiggly grocery, where she was employed as a cashier. In May 1998, following the filing of the present action in August 1997, Henderson's restrictions were altered to allow her to "bend at the waist when needed" although her lifting restrictions remained. In June 1998, Henderson was rehired by Ardco, where she works today, although not as a welder.

Originally, Henderson's pleadings asserted that when Baumann denied her reemployment, she in fact was disabled having a "permanent partial disability." (Compl. ¶ 7). Her current position appears to be that in 1995 she was "ready, willing and able to return to work as a welder." (Pl.'s Resp. to Def. Mot. Summ. J.). She nowhere asserts that she sought an accommodation in her job as welder or otherwise, beyond her July 1995 letter seeking employment consistent with her medical restrictions.

In resisting Ardco's motion for summary judgment, Henderson asserted (and reasserts on appeal) that the requirements of the jobs filled by Ardco after July 1995 were consistent with her medical restrictions, as was her original job. A document obtained from Ardco describing the "essential job functions" for each position at the plant offers limited support for Henderson's contention. Certain positions, such as "cut molding job" or "vinyl punch press job" require "ability to bend;" "milling" jobs require both the "ability to bend" and "ability to stoop." However, several other jobs in Ardco's machine shop, such as "materials handling job" or "polishing/feeding job" are listed as having neither of these requirements. Lifting requirements are also specified in the "essential job functions." For Henderson's original welding job, the listed lifting requirement is the capacity to lift "forty to sixty pounds intermittently (can be shared)" -- whether or not this is within Henderson's restrictions is ambiguous and disputed by the parties². The other jobs in the machine shop, including those without stooping/bending restrictions, have listed weight requirements of no greater strain than "forty pounds occasionally," apparently consistent with Henderson's restrictions. Some jobs have requirements as low as "eight pounds intermittently" ("cutting door widths job") or "one to fifteen pounds intermittently" ("frame cutting job").

Henderson claims that despite her ability to work, Ardco perceived her as having a disability and that its "100% healed rule" is per se discriminatory under Ky. Rev. Stat. Ann. §344.040 (protecting "a qualified individual with a disability"). Henderson also applied for workman's compensation following her accident. She believes this application motivated, at least in part, Ardco's failure to re-employ her until June 1998, which is the basis of her claim for retaliatory discharge under Ky. Rev. Stat. Ann. §342.197.

The district court was troubled by the "100% healed rule" (labeling it "insensitive and repugnant") and Ardco's apparent unwillingness to assess employees individually for their capacity to perform work in the plant. However, it found Henderson's injury was not so great as to substantially impair her in any major life activities. The court also found that no genuine issue of material fact existed as to whether Ardco misperceived Henderson's condition as more severe than it was. As a consequence, it held Henderson was not and is not a person with a "disability," and granted summary judgment to Ardco on this claim as well as on Henderson's other claims. Henderson's timely appeal followed.

II Standard of Review

On appeal, we review a grant of summary judgment de novo, using the same Rule 56(c) standard as the district court. Hansard v. Barrett, 980 F.2d 1059 (6th Cir. 1992). The moving party has the initial burden of proving that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Disability Discrimination

We interpret Kentucky protections for the disabled consonant with the federal Americans with Disabilities Act. Brohm v. JH Properties, Inc., 149 F.3d 517, 520 (6th Cir. 1998); cf. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 n.3 (6th Cir. 1996) (interpreting Michigan statute). In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) that he or she is "disabled" within the meaning of the ADA; (2)that he or she is "otherwise qualified" to perform the requirements of the job, with or without reasonable accommodation; and (3) that he or she has suffered an adverse employment decision because of the disability. See Monette, 90 F.3d at 1178.

Henderson has produced sufficient evidence to survive summary judgment on the second and third elements of this test. The relevant job descriptions and testimony by co-workers indicate that Henderson may have been qualified for her position in welding as well as for other jobs at Ardco. The record also supports the proposition that Henderson's employment was terminated because of her injured state, and that she was not rehired for the same reasons. These actions would constitute adverse employment decisions based on a disability - if Henderson's condition is considered a disability. All parties acknowledge it is this question, the first element of the test, that is the crux of the case.

A person is "disabled" for the purposes of the ADA if she:

(A) [has] a physical or mental impairment that substantially limits one or more of [her] major life activities ...;

(B) [has] a record of such an impairment; or

(C) [is] regarded as having such an impairment.

42 U.S.C. § 12102(2).

As noted, on appeal and at oral argument Henderson has abandoned the alternative claim that her restrictions were such that she was actually disabled, instead relying solely on the "regarded as" part of the ADA under 42 U.S.C. §12102(2)(C). An individual can be regarded as having a disability if: "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999); Ross v. Campbell Soup Company, 237 F.3d 701, 706 (6th Cir. 2001) (quoting Sutton). Henderson proceeds on the second theory, that Ardco mistakenly believed her restrictions substantially limited the major life activity of working. In a "regarded as" case, "it is necessary that a covered entity entertain misperceptions about the individual--it must believe . . . that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often 'resul[t] from...