McClurg v. Gtech Corp.

• Decision Date: 22 July 1999
• Docket Number: No. 95-4193-SAC.,95-4193-SAC.
• Citation: 61 F.Supp.2d 1150
• Parties: Luke E. McCLURG, Plaintiff, v. GTECH CORPORATION, Defendant.
• Court: U.S. District Court — District of Kansas

61 F.Supp.2d 1150

Luke E. McCLURG, Plaintiff, v. GTECH CORPORATION, Defendant.

No. 95-4193-SAC.

United States District Court, D. Kansas.

July 22, 1999.

COPYRIGHT MATERIAL OMITTED

Cheryl D. Myers, Michael B. Myers, Myers & Myers, Topeka, KS, for plaintiff.

Donald S. Lee, Topeka, KS, Thomas E. Wright, Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This employment discrimination case comes before the court on the defendant GTECH Corporation's ("GTECH") motion for partial summary judgment (Dk. 89). The plaintiff alleges religious discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.; disability discrimination, harassment and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12117[a] ("ADA"); and retaliatory discharge for filing a worker's compensation claim in violation of Kansas common-law tort law. The defendant seeks summary judgment as to the plaintiff's ADA claims, common-law retaliatory discharge claim, and part of the Title VII retaliation claim.

SUMMARY JUDGMENT STANDARDS

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the non-moving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]here are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; it requires "`present[ing] sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir. 1995).

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

Summary judgments are "used sparingly in employment discrimination cases." Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir.1995). Because discrimination claims often turn on the employer's intent, courts ordinarily consider summary judgment inappropriate to settle an issue like intent. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir.1994); see Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994) ("[T]he summary judgment standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." (quotation and citation omitted)). Even so, summary judgment is not "per se improper," Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir.1992), and may be useful in weeding out claims and cases obviously lacking merit, Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir.1988), overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995).

STATEMENT OF UNCONTROVERTED FACTS

For purposes of this motion only, the court considers the following to be the uncontroverted facts¹ relevant to its ruling:

1. GTECH hired the plaintiff Luke McClurg ("McClurg") on December 15, 1987, as a computer operator trainee in Topeka, Kansas. During his employment McClurg was promoted several times, and his job title when he was terminated on March 3, 1996, was control room operator III. In July of 1996, the plaintiff weighed approximately 385 pounds and testified to always having a weight problem.

2. On August 2, 1993, McClurg reported to GTECH that he had suffered an off-work injury to his left knee and foot. GTECH granted him a medical leave of absence for four and one-half weeks and assisted him in preparing forms to obtain short-term disability payments.

3. After the injury, McClurg began wearing a leg brace to work. When it was rainy or icy he always wore the brace, and he wore it occasionally at other times.

4. The record is controverted as to whether McClurg's supervisors knew of the plaintiff's difficulties with his chair and console as a result of his leg injury and leg brace and whether his supervisors had received written, as well as oral, requests from McClurg for some accommodation of leg injury. In November of 1995, McClurg included in one of his turnover reports a request that all chairs in the control room be returned to the "up" setting as "[i]t poses a special difficulty for me personally (not to mention a very real hazard) if I try to sit down in a chair that is too low." (Dk.90, Ex. E).

5. In December of 1995, McClurg reported in writing to his supervisor, Tom Desch, a work-related carpal tunnel injury to his right wrist and hand. Upon learning of the injury, GTECH did not contest that the injury occurred on the job and assisted McClurg in filing the appropriate workers' compensation forms, obtaining payment for medical bills, and arranging for medical treatment and a worksite evaluation by a physical therapist.

6. In January of 1996, McClurg received time off to undergo physical therapy for his carpal tunnel injury. On January 19, 1996, McClurg's physical therapist evaluated his work station and recommended certain changes in a written report. GTECH implemented the recommended changes providing a headset for telephone calls and modifying the chair to remain in its highest position.² The physical therapist indicated she would provide a wrist rest for McClurg, and McClurg already owned a wrist brace. McClurg later told co-workers that the chair modified to stay in the highest position caused him physical discomfort.

7. On February 24, 1996, McClurg underwent carpal tunnel surgery. GTECH gave McClurg a medical leave of absence for this surgery. In an activity/work form dated February 19, 1996, McClurg's treating physician wrote: "Patient is to remain off work for six weeks due to his carpal tunnel surgery February 20, 1996." (Dk.101, Ex.1). In an activity/work form dated February 27, 1996, McClurg's physician wrote:

Restrictions: Patient is seen today for recheck post carpal tunnel syndrome. He can return to one handed work only. This work should be work that can ordinarily be done with one hand and would not put undue stress on his left hand and wrist. If this type of work is unavailable, he should remain off work until further notice.

(Dk.101, Ex.2). In a letter dated March 1, 1996, McClurg's attorney wrote GTECH stating that based on his physician's restrictions McClurg was unable to perform his regular job duties and asking what positions could be performed with only one hand.

8. Pursuant to the treating physician's written restrictions, GTECH had arranged light duty work for McClurg which was to be performed with only one hand. The work included hotline, dispatch, communications work with a headset, and limited data entry on a computer. In his affidavit, McClurg opines that this planned light duty work would have required the use of both hands and that David Douglas, GTECH's site director in Kansas, commented in his presence that "there is no such thing as one-handed work."

9. When McClurg returned from his medical leave of absence on March 3, 1996, GTECH terminated him before he even attempted the light duty work.

10. McClurg's supervisor, Tom Desch, recalls that McClurg's workers' compensation claim was a subject discussed in meetings about his termination. Desch could not recall any comment that McClurg's workers' compensation coverage would end with his termination of employment. After his termination, Liberty Mutual stopped paying the temporary total disability benefits but continued paying for McClurg's medical treatment. McClurg, however, did submit...