Jelsma v. City of Sioux Falls

• Decision Date: 29 September 2010
• Docket Number: No. CIV. 09–4010–KES.,CIV. 09–4010–KES.
• Citation: 744 F.Supp.2d 997
• Parties: Larry W. JELSMA, Plaintiff,v.CITY OF SIOUX FALLS, Defendant.
• Court: U.S. District Court — District of South Dakota

744 F.Supp.2d 997

Larry W. JELSMA, Plaintiff,

v.CITY OF SIOUX FALLS, Defendant.

No. CIV. 09–4010–KES.

United States District Court, D. South Dakota, Southern Division.

Sept. 29, 2010.

Thomas K. Wilka, Hagen, Wilka and Archer, P.C., Sioux Falls, SD, for Plaintiff.Lisa Hansen Marso, Boyce Greenfield Pashby & Welk, LLP, Sioux Falls, SD, for Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

KAREN E. SCHREIER, Chief Judge.

Plaintiff, Larry Jelsma, filed suit against defendant, City of Sioux Falls, for alleged violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family Medical Leave Act. The City moves for summary judgment on all claims. The motion is denied.

BACKGROUND

The facts, taken in the light most favorable to Jelsma, the nonmoving party, are as follows:

In 1989, Jelsma began working for the City as a park service worker. He changed positions in 1997 when he became the building maintenance worker at the water plant. Bruce Anderson and Randy Janssen supervised Jelsma from 2005 until his retirement in 2007.

Beginning in 2000, Jelsma began experiencing problems with his left shoulder, but continued to work without any accommodation. In 2005, Jelsma further injured his shoulder when he fell against a handrail at work, tearing his rotator cuff. Jelsma informed the City about this injury on March 23, 2006, when he filed a worker's compensation claim.

Jelsma consulted with Dr. Kalo about his shoulder. Dr. Kalo restricted Jelsma's work activities to not lifting more than ten pounds above chest level and no climbing with his left arm. Dr. Kalo also suggested a change in job and shoulder replacement surgery. Jelsma later saw Dr. Braman, who rejected the shoulder replacement option and instead recommended that Jelsma's rotator cuff be repaired. Jelsma estimated that his condition affected less than 5 percent of his work and that he was substantially performing his job duties.

The City provided light duty for Jelsma. After a May 11, 2006, meeting with Anderson and Janssen, Anderson prepared a list of nine job duties that Jelsma could not perform: no climbing on ladders; no lifting over ten pounds with his left shoulder over chest height; no carrying a ladder if both arms were needed; no tree trimming; no raking, shoveling, or mopping; no floor scrubbers or buffers; no self-propelled hand mowers; no roof climbing; and limitations on his left arm's mobility.

In 2006 and 2007, Jelsma's supervisors held numerous meetings about his ability to continue working. Jelsma underwent an independent medical examination by Dr. Luther. Dr. Luther found Dr. Kalo's restrictions on Jelsma's work activities to be too limiting. In replacing Dr. Kalo's restrictions, Dr. Luther found that Jelsma could not climb ladders, should limit certain shoulder maneuvers to an occasional basis of less than one-third of the day, and needed to keep his shoulder close to his body. Additionally, Dr. Luther stated that Jelsma could lift objects weighing less than twenty pounds with his left arm, instead of the ten-pound limitation imposed by Dr. Kalo. Docket 31–10 at 1.

After the meetings and the various doctors' reports, the City informed Jelsma that it would only provide light duty to Jelsma through his retirement eligibility date if Jelsma wanted to apply for retirement. On February 12, 2007, Jelsma reached age 60 and was eligible for early retirement benefits under the City's defined benefit pension plan.

On February 20, 2007, Jelsma met with his supervisors and informed them that he would be having shoulder surgery that summer and would need FMLA leave to recuperate and to care for his ill mother. The City had granted Jelsma FMLA leave to care for his mother in the past. On February 23, 2007, he told Bill O'Toole, who was with the City's human resources department, that his surgery was scheduled for March 21, 2007. Jelsma again informed his supervisors that he would be having surgery on March 21, 2007, in a February 28, 2007, meeting.

Beginning with the February 23, 2007, meeting between Jelsma and O'Toole, the City began pressuring Jelsma to retire. On or around February 27, 2007, Jelsma met with Janssen and Anderson and they encouraged him to retire. On March 1, 2007, and March 5, 2007, Jelsma and his supervisors discussed his possible physical limitations after his shoulder surgery. Jelsma alleges that on or around March 5, 2007, Janssen told Jelsma that if he did not retire, Janssen could terminate his employment. Jelsma claims that his supervisors threatened him that if he was terminated by the City, he would lose both his health and pension benefits. On March 8, 2007, Jelsma met with O'Toole, who encouraged him to retire. Jelsma filled out the retirement application during this meeting. Even though Jelsma was eligible for early retirement at age 60, if he had waited until age 65 to retire, his pension plan payments and social security benefits would have been greater than if he retired at age 60. Additionally, Jelsma had to pay $2,621.32 more per year for health and dental insurance than he would have if he had remained employed at the City.

Jelsma had partial shoulder replacement surgery on March 21, 2007. His arm was in a sling for eight weeks. Three months after the surgery, Jelsma could perform light tasks with his left shoulder. Six months after the surgery, Dr. Braman generally found that Jelsma could not return to full duty at the City, but never listed which specific tasks Jelsma could or could not perform. While Jelsma had informed the City earlier of his need to take FMLA leave, he did not formally apply for FMLA leave until April 10, 2007. The City approved his April 10, 2007, request. He began receiving retirement benefits in April 2007. After Jelsma retired, the city eliminated his job position. The City assigned other, younger workers to absorb Jelsma's job duties.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Only disputes over facts that might affect the outcome of the case will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a summary judgment motion, the court views the facts, and inferences drawn from those facts, “ ‘in the light most favorable to the party opposing the motion.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).

The nonmoving party may not, however, merely rest upon allegations or denials in its pleadings, but must set forth specific facts by affidavits or otherwise showing that a genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir.2002). Evidence based on inferences is acceptable in an employment discrimination case. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994). Because the court is especially deferential to plaintiffs who base their evidence on inferences, “summary judgment should seldom be used in employment-discrimination cases.” Id. (citing Johnson v. Minn. Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir.1991); Hillebrand v. M–Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir.1987)).

ANALYSIS

I. Americans with Disabilities Act

A plaintiff can prove a discrimination claim under the Americans with Disabilities Act (“ADA”) with either direct or indirect evidence. Young v. Warner–Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir.1998). Jelsma does not allege direct evidence, but rather relies on indirect evidence. Employees can use the McDonnell Douglas burden-shifting analysis to establish a prima facie case of discrimination based on indirect evidence under the ADA. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

To make out a prima facie case of discrimination under the ADA, an employee must make three showings: (1) that he has a disability as defined in the Act; (2) he is qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) he has suffered an adverse employment action because of his disability. Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1016 (8th Cir.2000). If the plaintiff makes this showing, the burden shifts to the defendant to rebut this presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action. Young, 152 F.3d at 1021. If the defendant makes this showing, the burden shifts back to the plaintiff to show that the defendant's proffered reasons are merely pretext for discrimination. Id.

A. Disability Under the ADA

The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (2005).¹ Under Section A, a person has an actual disability if “he has (1) a physical or mental impairment that (2) substantially limits one or more major life activities of the individual.” Christensen v. Titan Distrib., Inc., 481 F.3d 1085, 1094 (8th Cir.2007) (internal quotation omitted). The Equal...