Lowe v. Alabama Power Company
| Decision Date | 23 March 2001 |
| Docket Number | Docket No. 97-01340-CV-S-E,No. 99-11179,99-11179 |
| Citation | 244 F.3d 1305 |
| Parties | (11th Cir. 2001) DOUGLAS LOWE, Plaintiff-Appellant, v. ALABAMA POWER COMPANY, Defendant-Appellee. D. C |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Northern District of Alabama
Before EDMONDSON and BIRCH, Circuit Judges, and SHAPIRO*, District Judge.
Douglas Lowe appeals the district court's grant of summary judgment to Alabama Power Company in his suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., for discrimination, failure to accommodate and retaliation. Lowe urges us to reverse our holding in Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996), in which we determined that "[t]he employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available." Id. at 447. He also argues that 29 C.F.R. 1630.2(r), which defines a direct threat as "a significant risk of substantial harm to the health or safety of the individual or others," impermissibly broadens the definition provided by statute because it includes a risk of injury to the disabled employee as well as to others. We need not address these issues, however, because, since Alabama Power's company physician did not base his decision to restrict Lowe's work activity on a timely, particularized assessment of Lowe's capabilities, summary judgment was improperly granted. Accordingly, we REVERSE and REMAND.
Lowe has been an employee of Alabama Power since 1969. In 1990, Lowe was injured in an accident at the E.C. Gaston steam plant, where he worked as a welder. As a result, both of his legs were amputated below the knees and he now wears prostheses. Lowe returned to work at the plant in 1992 and held a variety of office positions, but continued to be classified and paid according to his pre-injury status as a journeyman, a position covered by the collective bargaining agreement ("CBA") between Alabama Power and the union.
In July 1994, Lowe took a leave of absence from work due, in part, to infection in his legs. In October 1994, while Lowe was still on leave, he met for about an hour with Alabama Power's physician, Doctor Carmichael. Dr. Carmichael conducted a "cursory" examination, looking briefly at Lowe's legs. At the time of the examination, Lowe was classified as a journeyman, but it was unclear what his specific job would be when he returned to work. This examination was Dr. Carmichael's and Lowe's only meeting. In March 1995, Lowe's condition improved, and he returned to work in a warehouse position. In July 1995, nine months after their only meeting and four months after Lowe returned to work, Carmichael imposed work restrictions on Lowe. Carmichael limited both the weight Lowe could lift and the height to which he could climb, and prohibiting him from working at unprotected elevations. Carmichael also restricted Lowe to driving non-commercial vehicles and required that any company vehicle operated by Lowe have hand controls. Lowe disputes the need for some of these restrictions.
In March 1996, Lowe bid on a tool-room mechanic position that became available in the plant. On April 2, 1996, Lowe was awarded the position but the offer was retracted that same day. Also on the same day, Lowe was permanently assigned to the gate attendant position and reclassified as such. Accordingly, he lost his journeyman status, and his pay was lowered to that of the gate attendant position. Lowe timely filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging disability discrimination. Alabama Power did not allow Lowe to bid for subsequent journeyman positions that became available, and he filed an amended complaint with the EEOC adding a charge of retaliation.
The magistrate judge assumed that Lowe was qualified for the position of tool-room mechanic and had established a prima facie case of discrimination, but found that Alabama Power presented a legitimate, non-discriminatory reason for not awarding the position to Lowe, making summary judgment appropriate for Alabama Power. The magistrate judge also found that, since Lowe was properly denied the tool-room position and re-classified as a gate attendant, the retaliation claim failed because he lacked the proper seniority status under the CBA to be eligible for the positions on which he bid. The district judge adopted the recommendation and report and granted Alabama Power's motion for summary judgment.
We review a grant of summary judgment on ADA claims de novo, construing the facts in the light most favorable to the non- moving party. Cash v. Smith, 231 F.3d 1301, 1304-05 (11th Cir. 2000). "Summary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir. 1996).
The ADA prohibits employment discrimination against qualified disabled individuals. In order to establish a prima facie case of disability discrimination, Lowe must establish that he "(1) is disabled, (2) is a qualified individual, and (3) was subjected to unlawful discrimination because of h[is] disability." Cash, 231 F.3d at 1305. A disability is defined as a physical or mental impairment that substantially limits a major life activity of an individual. 42 U.S.C. 12102(2). Lowe is a double amputee below the knee and is disabled within the meaning of the statute.
The magistrate judge found that a substantial question of fact existed as to whether Lowe was qualified to perform the position of tool-room mechanic.
The evidence submitted suggests that there exist a number of questions of fact to be resolved regarding whether plaintiff is "qualified." There is significant evidence from both sides, for instance, regarding the essential functions of a mechanic at the steam plant, including (1) whether a mechanic must work at unprotected heights and, if so, (2) whether plaintiff is physically capable of doing this; (3) whether plaintiff will work as part of a team that can divide work assignments according to skill and ability such that plaintiff could be reasonably accommodated if a chore did come up which he believed he could not safely perform; (4) whether plaintiff can safely access all areas of the plant; and (5) whether plaintiff is physically capable of doing all the tasks required of a mechanic.
Magistrate's Report and Recommendation, R4-129-26.
The magistrate judge nevertheless recommended that Alabama Power be granted summary judgment. He assumed for purposes of argument that Lowe was qualified and had adequately established a prima facie case of discrimination concerning the refusal to award him the mechanic's position for which he applied. The magistrate judge then went on to find that Alabama Power had established a legitimate, non-discriminatory reason for its employment decision. The company has relied on Carmichael's restrictions, imposed on Lowe in 1995, while Lowe was still on a leave of absence due in part to infection in his legs and when Lowe had obviously not reached maximum improvement. The CBA required that the company rely on Carmichael. The magistrate judge found this reliance on Carmichael's restrictions reasonable, but acknowledged that "Dr Carmichael's examination of plaintiff was somewhat cursory." Id. at 29. The magistrate judge went on to explain that reliance on Carmichael's restrictions was reasonable, in part, because the restrictions were based on Carmichael's experience with other amputees. The magistrate judge did not determine whether Lowe actually posed a direct threat to the safety of others, because Lowe was unable to rebut the legitimate, non-discriminatory reason that, based on Carmichael's restrictions, Alabama Power held a good-faith and honest belief that Lowe posed a direct threat to the safety of others. Id. at 31.1
The statute defines a direct threat as "a significant risk to the health or safety of others that cannot be eliminated...
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