Lowe v. Angelo's Italian Foods, Inc.

• Citation: 87 F.3d 1170
• Decision Date: 02 July 1996
• Docket Number: No. 95-3064,95-3064
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 339, 5 A.D. Cases 1064, 17 A.D.D. 1105, 8 NDLR P 170 Jamie LOWE, Plaintiff-Appellant, v. ANGELO'S ITALIAN FOODS, INC., and its Representatives, and Angelo Fasciano and John P. Fasciano, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1170

87 F.3d 1170

71 Fair Empl.Prac.Cas. (BNA) 339, 5 A.D. Cases 1064,

17 A.D.D. 1105, 8 NDLR P 170

Jamie LOWE, Plaintiff-Appellant, v. ANGELO'S ITALIAN FOODS, INC., and its Representatives, and Angelo Fasciano and John P. Fasciano, Defendants-Appellees.

No. 95-3064.

United States Court of Appeals Tenth Circuit.

July 2, 1996.

Jose Hurlstone-Peggs (William L. Fry with her on the brief), William L. Fry, P.A., Wichita, Kansas, for Plaintiff-Appellant.

Alexander B. Mitchell, II, Klenda, Mitchell, Austerman & Zuercher, L.L.C., Wichita, Kansas, for Defendants-Appellees.

John P. Rowe, General Counsel (Acting), (Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, John F. Suhre, Attorney, with him on the brief), Washington, D.C., filed an amicus curiae brief for the Equal Employment Opportunity Commission.

Before BALDOCK, BRISCOE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Defendant terminated plaintiff's employment and plaintiff responded by filing this action, alleging violations of both the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964. Plaintiff also sought recovery for intentional infliction of emotional distress. The district court granted summary judgment to defendants. The court held that plaintiff was not disabled under the ADA; that she had failed to present a prima facie case of sex discrimination; and that she had failed to allege sufficient facts to support her state law claim for intentional infliction of emotional distress. We affirm the grant of summary judgment to defendants on plaintiff's Title VII and pendent state law claims. We reverse the grant of summary judgment on plaintiff's ADA claim, however, because plaintiff has presented evidence which creates a genuine issue of fact with respect to whether her ability to lift is substantially impaired. We hold that lifting is a "major life activity" and that an individual whose ability to lift is substantially impaired qualifies as a disabled person within the meaning of the ADA.

In late August 1992, plaintiff Jamie Lowe began work for defendant Angelo's Italian Foods, an Italian restaurant located in Wichita, Kansas. Her duties included purchasing and inventory control. When Lowe initially interviewed for a position at Angelo's, she heard a line cook remark "no skirts in the kitchen." Because the cook who made this remark left Angelo's the very next day, Lowe never saw him again.

In addition, during the nine weeks she was employed at Angelo's, Lowe's supervisor, defendant Angelo Fasciano, referred to her as "girl" or "girlie" when he couldn't remember her name. Fasciano also required Lowe to wear dress clothes, while two of her male co-workers were allowed to wear jeans and t-shirts. Once when Lowe wore red slacks and a red shirt to work, Fasciano told her "no more of this red thing."

On October 22, 1992, Lowe presented Fasciano with a letter from her doctor. The letter stated:

Jamie Lowe has seen me recently regarding pain and weakness in her right leg. Because of her neurological problems she fatigues exceedingly easily and needs to be able to sit down occasionally. She is not going to be able to do lots of stooping, bending and cannot carry anything heavy (greater than 15 lbs.) and anything up to 15 lbs. only occasionally. She should avoid stairs. She needs to use a hand rail if she has to climb stairs, so [sic] cannot climb stairs and carry anything.

Lowe was terminated that same day. She was thereafter diagnosed with multiple sclerosis.

This court reviews the district court's entry of summary judgment de novo, applying the same legal standard used by the district court. Schusterman v. United States, 63 F.3d 986, 989 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1823, 134 L.Ed.2d 929 (1996). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment should be denied "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Lowe first argues that the district court erred by granting summary judgment to defendants on her ADA claim. Title I of the ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, [or] the hiring, advancement, or discharge of employees." 42 U.S.C. § 12112(a). To maintain a claim for wrongful discharge under the ADA, a plaintiff must demonstrate (1) that she is a disabled person within the meaning of the ADA; (2) that she is able to perform the essential functions of the job with or without reasonable accommodation; and (3) that the employer terminated her because of her disability. White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995).

The term "disability" is defined 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). The term "major life activity" as defined in the regulations implementing the ADA encompasses "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i). The appendix to the regulations provides that "other major life activities include, but are not limited to, sitting, standing, lifting, reaching." 29 C.F.R. Pt. 1630, Appendix to Part 1630--Interpretive Guidance to Title I of the ADA, § 1630.2(i) (citing S.Rep. No. 116, 101st Cong., 1st Sess. 22 (1989); H.R.Rep. No. 485 part 2, 101st Cong., 2d Sess. 52 (1990); H.R.Rep. No. 485 part 3, 101st Cong., 2d Sess. 28 (1990)).

The term "substantially limits" means "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii). The three factors to be considered when determining whether an impairment substantially limits a major life activity are "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id. § 1630.2(j)(2).

Three additional factors may be considered when the individual claims that the impairment substantially limits her in the major life activity of working. Id. § 1630.2(j)(3)(ii). These factors are:

(A) [t]he geographical area to which the individual has reasonable access;

(B) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or

(C) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).

Id. Focusing on these additional factors, the district court held that Lowe failed to present evidence that her impairment was substantially limiting.

Applying the first three factors laid out in the regulations, the evidence indicates that Lowe suffers from multiple sclerosis or MS; that as a result of her MS, Lowe is unable to lift items weighing more than fifteen pounds and that she should lift items weighing less than fifteen pounds only occasionally; that MS is a neurological disease for which there is no known cure; and that the long-term impact of the disease will vary depending on the form the MS takes. We hold that lifting is a major life activity and that the evidence creates a genuine issue of material fact with respect to whether Lowe's impairment substantially limits her ability to lift. It is thus unnecessary to consider the additional factors relied upon by the district court.

Defendants' arguments to the contrary are unavailing. Defendants urge that Lowe has failed to present evidence comparing her ability to lift with the ability of the average person. They assert that she has not demonstrated the impact of her condition on her life away from work. While the court agrees that more specific evidence on these issues will be helpful to the trier of fact on remand, Lowe has nevertheless presented sufficient evidence to withstand summary judgment.

Defendants argue, in the alternative, that even if Lowe has created a genuine issue of fact with respect to whether she suffers from a disability under the ADA, she has nevertheless failed to demonstrate that she is qualified for her position at Angelo's. This court has adopted a two-part analysis for determining whether a disabled individual is qualified under the ADA:

First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions.

White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994)).

Defendants concede...