Jones v. United Parcel Service, Inc.

• Decision Date: 02 February 2006
• Docket Number: No. CIV.A. 05-2034-KHV.,CIV.A. 05-2034-KHV.
• Citation: 411 F.Supp.2d 1236
• Parties: Keith JONES, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
• Court: U.S. District Court — District of Kansas

411 F.Supp.2d 1236

Keith JONES, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.

No. CIV.A. 05-2034-KHV.

United States District Court, D. Kansas.

February 2, 2006.

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Fredrick D. Deay, II, Overland Park, KS, George A. Barton, Phyllis A. Norman, Law Offices of George A. Barton, PC, Kansas City, MO, for Plaintiff.

Daniel K. O'Toole, Armstrong Teasdale LLP, St. Louis, MO, Laurence R. Tucker, Lynn W. Hursh, Melody L. Nashan, Armstrong Teasdale LLP, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

VRATIL, District Judge.

Keith Jones filed suit against his former employer, United Parcel Service, Inc. ("UPS"), alleging disability discrimination, failure to accommodate, pattern and practice discrimination and retaliation, in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and retaliatory discharge, in violation of Kansas common law. This matter is before the Court on United Parcel Service, Inc.'s Motion To Dismiss And/Or For Summary Judgment (Doc. #89) filed November 10, 2005 and Plaintiff's Motion For Partial Summary Judgment (Doc. #94) filed November 11, 2005. For reasons set forth below, defendant's motion is sustained in part and plaintiff's motion is sustained in part.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, Okl., 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in a light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are deemed admitted.

Plaintiff worked for defendant as a package car driver at the James Street facility in Kansas City, Kansas. Plaintiff's job duties included picking up and delivering packages to UPS customers along a prescribed route. According to defendant's Essential Job Functions, a package car driver must be able to perform the following:

Lift, lower, push, pull, leverage and manipulate equipment and/or packages up to 130 inches combined length and girth, and up to 48 inches long, and occasionally weighing up to 70 pounds, average weight of 12 pounds.

Exhibit B to United Parcel Service, Inc.'s Memorandum Of Law In Support Of Its Motion To Dismiss Plaintiff's Claims Brought Pursuant To The ADA And/Or For Summary Judgment On All Counts Of Plaintiff's First Amended Complaint ("Defendant's Memorandum") (Doc. #89) filed November 11, 2005.

The International Brotherhood of Teamsters Local Union No. 41 ("Local 41") serves as the bargaining representative for certain UPS employees, including package car drivers, at the James Street facility. Defendant and Local 41 were parties to a collective bargaining agreement ("CBA") during the relevant time period. Plaintiff belonged to Local 41. Article 20 of the CBA contained the following provisions:

Section 2. Return to Work Examination

It is understood by the Employer and the Union that once an employee notifies the Employer that he/she has been released to return to work by the employee's doctor, the Company doctor must examine the employee within three (3) working days from the time the employee brings the return-to-work slip to the Employer.

Section 3. Third Doctor Procedure

The Employer reserves the right to select its own medical examiner or doctor and the Union may, if it believes an injustice has been done an employee, have said employee reexamined at the employee's expense. If the two (2) doctors disagree, the Employer and the Union shall mutually agree upon a third (3rd) doctor within ten (10) working days, whose decision shall be final and binding on the Employer, the Union and the employee. Neither the Employer nor the Union will attempt to circumvent the decisions of the third (3rd) doctor and the expense of the third doctor shall be equally divided between the Employer and the Union.

Exhibit F to Defendant's Memorandum (Doc. #89). The CBA states that the parties agree to abide by the ADA. The CBA did not require plaintiff to waive his right to sue for disability discrimination under the ADA, and filing a grievance under the CBA does not waive a plaintiff's right to bring ADA claims.

Before October 6, 2003, plaintiff suffered workplace injuries at UPS. He filed workers' compensation claims as a result of those injuries, but later returned to work. On October 6, 2003, plaintiff injured his left shoulder at work. That same day, plaintiff reported the injury to his supervisor, Anson Wallace. Wallace asked plaintiff if he "knew what work comp fraud was" and if he knew "how much this was going to cost UPS." Deposition of Keith Jones, Exhibit A to Defendant's Memorandum (Doc. #89) at 22. Defendant provided information regarding the injury to its workers' compensation insurer, Liberty Mutual. Plaintiff filed a workers' compensation claim relating to his shoulder injury.

That same day, Dr. Gary Legler examined plaintiff. Dr. Legler released plaintiff to return to modified duty with the following restrictions: lifting/lowering up to 20 pounds; push/pull/grasp up to 20 pounds; and no lifting above shoulder level.

On October 9, 2003, Dr. Legler referred plaintiff to Dr. Daniel J. Stechschulte. Dr. Stechschulte saw plaintiff on October 14 and 21 and November 11 and 20, 2003. Plaintiff received physical therapy at Spine and Extremity Rehabilitation Center from October 8 through December 4, 2003. On November 11, 2003, Dr. Stechschulte recommended a functional capacity exam ("FCE"). That same day Bob Mitchell, a physical therapist, performed the FCE and found as follows:

This client was cooperative [and] attempted all tasks he was asked to perform. This client continues to report significant left shoulder pain that worsens with lifting and repetitive activity. Objective assessment shows mild to moderate musculoskeletal dysfunction with no sign of motor neurological disturbances detected. Weakness of the left shoulder girdle in comparison to the right is noted. AROM of the left glenohumeral joint shows moderate deficit in comparison to the right. Functionally this client has demonstrated the ability to perform Heavy labor according to the Dictionary of Occupational Titles. Although this client performs well when lifting from the floor he does not posses[s] the ability to perform the required essential functions of his job as a Package Car Driver with UPS. This client lacks lifting strength from waist to shoulder and repetitive lifting capability in the same range.

Exhibit Q to Defendant's Memorandum (Doc. #89). Plaintiff returned to temporary alternative work through November 14, 2003.

On December 4, 2003, plaintiff had another FCE and saw Dr. Stechschulte. Dr. Stechschulte's report reflects that "[p]atient reports continued improvement but `the shoulder is still not right.'" Exhibit S to Defendant's Memorandum (Doc. #89). Dr. Stechschulte released plaintiff with a permanent 20-pound overhead lifting restriction and a 45-pound chest-to-shoulder lifting restriction with the left upper extremity. Plaintiff gave a copy of Dr. Stechschulte's work status report to Wallace and UPS Labor Manager Don Lewick. Defendant did not permit plaintiff to return to work after Dr. Stechschulte imposed the permanent lifting restrictions.

Plaintiff advised Clint Long, Local 41 Business Agent, that he had permanent work restrictions.¹ Long recommended that plaintiff see another doctor. On February 3, 2004, Dr. Michael Poppa examined plaintiff and gave him a release to return to work with regular duties. Plaintiff presented the release to Wallace and Long. Long advised plaintiff to contact defendant's human resources office and ask about seeing a...