Kuehl v. Wal-Mart Stores, Inc.

• Decision Date: 14 November 1995
• Docket Number: Civ. A. No. 95-S-393.
• Citation: 909 F. Supp. 794
• Parties: Vickie KUEHL, Plaintiff, v. WAL-MART STORES, INC. and Sam's Wholesale Club, Defendants.
• Court: U.S. District Court — District of Colorado

909 F. Supp. 794

Vickie KUEHL, Plaintiff, v. WAL-MART STORES, INC. and Sam's Wholesale Club, Defendants.

Civ. A. No. 95-S-393.

United States District Court, D. Colorado.

November 14, 1995.

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Robert A. Garcin, Burton, Busch & Garcin, Loveland, CO, for Plaintiff.

Kirk R. McCormick, James J. Murphy, Harris, Karstaedt, Jamison & Powers, P.C., Colorado Springs, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

SPARR, District Judge.

THIS MATTER comes before the court on the Defendants' Motion for Summary Judgment, filed September 1, 1995. The court has reviewed the motion, the Plaintiff's brief in opposition, the exhibits and affidavits, the deposition excerpts, the entire case file, and the applicable law and is fully advised in the premises. The court has determined that oral argument would not materially assist resolution of this matter.

This is a civil action for declaratory and monetary relief brought pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the ADA) and purportedly pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. Plaintiff, diagnosed with chronic tibula tendinitis, was employed as a door greeter at Sam's Wholesale Club in Loveland, Colorado. During the course of the Plaintiff's employment, her diagnosed medical problems resulted in some missed time from work, a claim for worker's compensation benefits, and a lump sum payment for 5% permanent partial disability. During the course of the Plaintiff's medical treatment, she worked reduced hours at Sam's Club and was allowed to take breaks every two hours, unlike other employees. (Exhibit 2 pp. 36-42 to Defendants' Motion for Summary Judgment). Upon her release to return to work with certain restrictions, the Plaintiff sought permission to sit on a stool while on duty as a door greeter. Although Wal-Mart offered the Plaintiff two other options of working a split shift or working as a cashier in the tire mounting department, Wal-Mart felt that a door greeter should not be seen sitting down on the job and declined to permit the Plaintiff to use a stool. The Plaintiff claims in her First and only Claim for Relief that Wal-Mart discriminated against her in violation of the ADA because she was not provided with a stool to sit on while working her shift as a door greeter.

1. Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to 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, 2509, 91 L.Ed.2d 202 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991).

The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). The movant need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553; John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir.1994); Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). If the moving party meets this burden, the non-moving party may not rest upon its pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 256, 106 S.Ct. at 2514; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Applied Genetics Int'l. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). A "material" fact is one that might affect the outcome of the suit under the governing law. An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

In applying the summary judgment standard, the court construes the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Blue Circle Cement, Inc. v. Board of County Comm'rs., 27 F.3d 1499, 1503 (10th Cir.1994); Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). However, the mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment. FDIC v. Hulsey, 22 F.3d 1472, 1481 (10th Cir.1994) (emphasis in original). To constitute a genuine factual dispute, there must be more than a scintilla of evidence; summary judgment may be granted if the evidence is merely colorable or is not significantly probative. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (citation omitted). "The relevant 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.'" Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir.1993), quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.

2. Analysis

The ADA provides that "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).

To qualify under the ADA, the Plaintiff must establish: (1) that she is a disabled person within the meaning of the ADA; (2) that she is qualified; that is, with or without reasonable accommodation (which she must describe), she is able to perform the essential functions of the job; and (3) that the employer terminated her because of her disability. White v. York Intl. Corp., 45 F.3d 357, 360-61 (10th Cir.1995), citing Mason v. Frank, 32 F.3d 315, 318-19 (8th Cir. 1994); Tyndall v. National Educ. Ctrs., 31 F.3d 209, 212 (4th Cir.1994); Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994); Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1538, 128 L.Ed.2d 190 (1994); Gilbert v. Frank, 949 F.2d 637, 640-42 (2d Cir.1991); Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.1990). Congress intended relevant caselaw developed under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., to be generally applicable to analogous inquiries under the ADA. White, 45 F.3d at 360 n. 5; Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). Also useful in ADA actions are the regulations the Equal Employment Opportunity Commission has issued to implement the ADA (EEOC regulations), 29 C.F.R. Part 1630, and the EEOC Compliance Manual Section 902: Definition of the Term "Disability" (EEOC Manual). See 42 U.S.C. § 12116, § 12206(c)(3); School Bd. of Nassau County v. Arline, 480 U.S. 273, 279, 107 S.Ct. 1123, 1126, 94 L.Ed.2d 307 (1987) (treating Rehabilitation Act regulations promulgated by the Department of Health and Human Services as "`an important source of guidance on the meaning of § 504 of the Rehabilitation Act'", quoting Alexander v. Choate, 469 U.S. 287, 304 n. 24, 105 S.Ct. 712, 722 n. 24, 83 L.Ed.2d 661 (1985)).

1. The Plaintiff must first establish that she is a disabled person within the meaning of the ADA. "The term `disability' means, with respect to an individual — (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).

The ADA does not define "major life activities." The court is guided by the definition found in the EEOC regulations and the EEOC Manual. 29 C.F.R. Part 1630; Compliance Manual Section 902; see 42 U.S.C. § 12116, § 12206(c)(3). The EEOC regulations adopt the definition of "major life activities" found in the Rehabilitation Act regulations, 34 C.F.R. § 104. See 29 C.F.R. Part 1630, Appendix to Part 1630 — Interpretive Guidance on Title I of the Americans with Disabilities Act, § 1630.2(i) Major Life Activities. The term means "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i); Compliance Manual Section 902.3(b).

The Plaintiff does not contend that she is substantially limited in any major life activity other than working. To demonstrate that an impairment "substantially limits" the major life activity of working, an individual must show significant restriction in the ability to perform a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. 29 C.F.R. § 1630.2(j)(3)(i) (emphasis added); Compliance Manual Section 902.4(c)(3)(i). The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working....