Nichols v. Abb De, Inc., No. 2:02CV00073 ERW.

• Citation: 324 F.Supp.2d 1036
• Decision Date: 29 April 2004
• Docket Number: No. 2:02CV00073 ERW.
• Parties: Thomas NICHOLS, Plaintiff, v. ABB DE, INC., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

324 F.Supp.2d 1036

Thomas NICHOLS, Plaintiff, v. ABB DE, INC., Defendant.

No. 2:02CV00073 ERW.

United States District Court, E.D. Missouri, Northern Division.

April 29, 2004.

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Sherrie A. Schroder, Diekemper and Hammond, St. Louis, MO, for Plaintiff.

Jerry M. Hunter, Timothy C. Mooney, Jr., Bryan Cave LLP, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

WEBBER, District Judge.

Before the Court is Defendant's Motion for Summary Judgment [doc. # 38]. For the foregoing reasons, that motion is granted.

I. Background

Thomas Nichols ("Nichols") worked in various jobs at ABB DE, Inc. ("ABB") from early 1986, when the plant was owned by Westinghouse Corporation, until August 2000. He was hired as a full-time employee in 1989. In 1997, Nichols injured his back while working as a fork truck driver on the three-phase paint line, and in early July of that year, a doctor placed him on a 25-pound lifting restriction, diagnosing him with a degenerative disc condition. Nichols filed a workers' compensation claim as a result of this injury. After remaining on leave for roughly three months, Nichols returned to work with no restrictions in October 1997. Instead of placing Nichols in his old position, ABB assigned him to a job in the grinding booth. The next day, Nichols left work because he could not tolerate the bending required of his job. He then remained on medical leave from October 23, 1997 through February 16, 1998. After returning to work, Nichols complained of the same problem, and went on medical leave a third time after working for four days. On March 20, 1998, a second doctor limited Nichols to carrying a maximum of 40 pounds, and restricted his hourly bending, twisting, and stooping.

Shortly thereafter, on April 15, 1998, Robert Pickering, an employee relations manager, informed Nichols that ABB had no jobs that Nichols could perform with his medical restrictions. As a result, Nichols remained on medical leave until January 25, 1999, when he returned to work after being released by a physician with no medical restrictions. Again, unable to tolerate the bending required by the job, Nichols returned to medical leave, where he remained until February 12, 1999. When he returned from work this time, he worked in section 221, process A, on the three-phase tank line, where he was required to use a crane to place boards on top of the three-phase tanks.

In March 1999, Nichols suffered back complications while walking at a grocery store, which required him to leave work on March 15. He thereafter had back surgery to correct the problem in April 1999. He did, however, return to work on October 11, 1999 without any medical restrictions. He was medically capable of performing any job ABB could offer. After working without incident for roughly five months, Nichols heard a pop in his back in March 2000 while moving a unit from a conveyor to the floor, and went on medical leave until June 2000.

On August 7, 2000, Nichols bid for and won a fork truck driver position, and worked for four days before leaving with back problems. On August 17, Dr. David Kennedy placed permanent work restrictions on Nichols, limiting him to lifting no more than 40 pounds, with only occasional bending, twisting, or stooping. After not working for four months, Nichols sought the opinion of Dr. Glen Cooper, who agreed with Dr. Kennedy's assessment.

In early December 2000, John Suttenfield, one of Nichols's supervisors, notified Nichols that he had sent Dr. Cooper three videotapes, containing information on a robotic welding job and an assembler accessories job. Suttenfield did not tell Nichols that ABB had a vacancy for either of those jobs, but Nichols claims that Suttenfield told him that he could return to work shortly if Dr. Cooper approved him for either position. Dr. Cooper recommended that Nichols not be authorized to work in the robotic welding department, but concluded that he could probably perform the assembler accessories job. Nichols claims that Suttenfield told him that Dr. Cooper rejected him for both jobs. Suttenfield denies this.

In any case, Suttenfield created a memorandum dated January 10, 2001, outlining the steps ABB followed, attempting to find Nichols a job. Checking the lifting and bending requirements for all hourly jobs against Nichols's permanent medical restrictions, ABB came up with four jobs: robot operator, feeder equipment operator, steel fabricator, and coil winding and shipping processor.¹ None of the jobs, however, came open for Nichols, and under ABB's collective bargaining agreement with the United Auto Workers union, ABB was not authorized to place him in a position unless one was open.

On January 15, 2001, Suttenfield sent Nichols a letter, advising him that he had received Nichols's permanent work restrictions from Dr. Kennedy and Dr. Cooper. He informed Nichols that the jobs which he had seniority to hold under the procedures of the UAW contract did not fit the requirements of his permanent work restrictions. Nichols treated this letter as a termination, and filed a charge of disability discrimination with the EEOC on May 14, 2001. He did not check the box marked "retaliation," and he did not mention retaliation in the portion of the charge containing the particulars. Nichols then brought suit against ABB in this Court, alleging disability discrimination under both the Americans with Disabilities Act and Missouri Human Rights Act, retaliation under both statutes, as well as workers' compensation retaliation, in violation of Missouri state law.

II. Discussion

A. Summary judgment standard

Summary judgment is appropriate only if all of the information before the court shows there is no genuine issue of material fact to be resolved and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those that might affect the outcome of the suit under the governing law. Id. Further, if the non-moving party has failed to "make a showing sufficient to establish the existence of an element essential to that party's case, ... there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

The initial burden of proof in a motion for summary judgment is placed on the moving party to establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.1988). The burden then shifts to the non-moving party who must set forth specific evidence showing that there is a genuine dispute as to material issues. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. To meet its burden, the non-moving party may not rest on the pleadings alone and must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In analyzing summary judgment motions, the court must view the evidence in the light most favorable to the non-moving party. Id. The non-moving party is given the benefit of any inferences that can logically be drawn from the facts. Id.

B. Nichols's claims

(1) Disability discrimination

The Court analyzes Nichols's disparate treatment allegation under both the ADA and the Missouri Human Rights Act, Epps v. City of Pine Lawn, 353 F.3d 588, 591 (8th Cir.2003), using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that scheme, Nichols must establish a prima facie case of disability discrimination. Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir.2003). To establish a prima facie case for disability discrimination under the ADA, Nichols must show (1) that he has a disability within the meaning of the ADA; (2) that he is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) that he suffered an adverse employment action because of his disability. Epps v. City of Pine Lawn, 353 F.3d 588, 591 (8th Cir.2003). The Eighth Circuit has also articulated the third prong as a requirement that the plaintiff show that he suffered an adverse employment action under circumstances that raise an inference of unlawful disability discrimination. See Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 684 (8th Cir.2003). Summary judgment to ABB is proper if Nichols fails to establish any element of his prima facie case. Id. at 592. If Nichols establishes a prima facie case, the burden shifts to ABB to rebut the presumption of discrimination by articulating a legitimate non-discriminatory reason for the adverse employment action. Longen, 347 F.3d at 688. If ABB does this, the burden of production shifts back to Nichols to demonstrate that ABB's non-discriminatory reason is pretextual. Id.

To establish a prima facie case, Nichols must show that he is disabled within the meaning of the ADA. A plaintiff is disabled within the meaning of the ADA if he (1) has a physical or mental impairment that substantially limits one or more of his major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). Apparently conceding that Nichols's back injury constitutes a physical impairment, ABB argues that summary judgment is appropriate because the impairment does not substantially limit any of his major life activities. The EEOC Guidelines to the ADA contemplate that major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i); see also ...