Nuzum v. Ozark Automotive Distributors, Inc., 4:03-CV-40148.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
Citation320 F.Supp.2d 852
Docket NumberNo. 4:03-CV-40148.,4:03-CV-40148.
PartiesSteven NUZUM, Sr., Plaintiff, v. OZARK AUTOMOTIVE DISTRIBUTORS, INC., d/b/a/ O'Reilly Auto Parts, Defendant.
Decision Date10 June 2004
320 F.Supp.2d 852
Steven NUZUM, Sr., Plaintiff,
OZARK AUTOMOTIVE DISTRIBUTORS, INC., d/b/a/ O'Reilly Auto Parts, Defendant.
No. 4:03-CV-40148.
United States District Court, S.D. Iowa, Central Division.
June 10, 2004.

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Mark D. Sherinian, Sherinian & Walker PC, West Des Moines, IA, for Plaintiff.

Elizabeth Gregg Kennedy, Nathan J. Overberg, Ahlers & Cooney PC, Des Moines, IA, for Defendant.

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GRITZNER, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment (Clerk's No. 17). This motion seeks dismissal of all counts alleged in Plaintiff's Complaint. Attorney for the Plaintiff is Mark Sherinian; attorneys for the Defendant are Elizabeth Gregg Kennedy and Nathan J. Overberg. An oral hearing was held on the motion on Friday, May 28, 2004. The Court considers the motion fully submitted and ready for ruling.


Plaintiff, Steven P. Nuzum, Sr. ("Nuzum"), commenced this action against Defendant, Ozark Automotive Distributors, Inc., d/b/a O'Reilly Auto Parts ("Ozark" or "the Company"), in the United States District Court for the Southern District of Iowa, Central Division, on March 19, 2003. Nuzum's Complaint asserts two claims against Defendant. Jurisdiction is proper pursuant to 28 U.S.C. § 1331, as this case arises in part under the Americans with Disabilities Act ("ADA" or "the Act"), 42 U.S.C. §§ 12101 et seq. The Court has jurisdiction over Plaintiff's claim brought pursuant to the Iowa Civil Rights Act ("ICRA"), Iowa Code ch. 216, pursuant to the Court's supplemental jurisdiction under 28 U.S.C. § 1367(a).

The lawsuit arises out of alleged discrimination based on disability, up to and including the termination of Plaintiff's employment. On March 1, 2004, Defendant filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Defendant seeks summary judgment on both counts asserted by Nuzum in his Complaint. Nuzum opposes this motion.


Nuzum was employed as an order picker at Ozark's Des Moines Distribution Center from May 10, 1999, through April 18, 2002. The order picker position required Plaintiff to review an order ticket from a particular store, remove the auto parts listed on the ticket from the stock bins, place the parts in a plastic tote until the tote is full or the order completed, deliver the tote to the conveyor, and place the tote on the conveyer.1 This position required Plaintiff to constantly lift and carry auto-motive parts, individually and collectively in totes, weighing up to 60 pounds.

On October 7, 1999, Nuzum was promoted to lead order picker.2 He received a corresponding raise in pay. In October 2000, Nuzum was returned to his regular order picker duties.3 There was no decrease in pay at this time.

On or about June 8, 2000, Nuzum was diagnosed with tendinitis, or as it is more commonly known, "tennis elbow", in his left elbow. Nuzum never had any issues with his right arm or elbow. From June 8, 2000, through his separation from employment in April 2002, the pain in his left elbow would fluctuate. When the tendinitis

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would flare up, Nuzum would obtain medical treatment consisting of physical therapy, over-the-counter wrist and elbow braces, pain reliever prescriptions, and pain reliever injections.

Because the tendinitis caused Nuzum severe pain, he was unable to meet the 60-pound lifting requirement of the order picker position. On occasion, Nuzum received temporary restrictions limiting his ability to lift, push, or pull certain amounts of weight. When Nuzum was on these temporary restrictions, Ozark provided him with temporary, modified, light-duty assignments consistent with the restrictions and Ozark's workers' compensation policy. For example, on some occasions, these temporary light-duty assignments consisted of picking only auto belts, cleaning totes, sweeping, and other janitorial work, or some combination thereof.

On February 19, 2002, Nuzum was given permanent restrictions by his physician. These restrictions limited him to lifting constantly up to 10 pounds, frequently up to 20 pounds, and occasionally up to 40 pounds.4 On April 2, 2002, it was determined that Nuzum had reached maximum medical improvement ("MMI"), meaning his injury would not improve and his lifting restrictions were permanent. Under Ozark's workers' compensation policy, once Nuzum reached MMI he was no longer eligible for temporary, modified, light-duty assignments. It is undisputed by both parties that Nuzum's permanent restrictions prevented him from performing the essential functions of his regular order picker position.

Ozark received notice on April 4, 2002, that Nuzum had reached MMI and that his permanent restrictions remained unchanged. At this time, Nuzum met with Julie Carroll, Des Moines Distribution Center Manager, and Mary J. Leto, Human Resources Supervisor, to discuss the situation. Because he was unable to perform the essential functions of his regular position, and because he was no longer eligible for temporary light-duty assignments, Nuzum was presented with three options: (1) voluntary termination from the company effective immediately; (2) apply for Family and Medical Leave of Absence ("FMLA") for up to 12 weeks; or (3) try to find another position within Ozark for which he was qualified within 14 days of April 4, 2002. In a letter addressed to Ms. Leto dated April 5, 2002, Nuzum indicated he was selecting the 14-day, or third, option as he wanted another position in the Company for which he was qualified. According to Nuzum, he did not want to voluntarily terminate his employment. Nuzum further feared that if he exercised the option of taking FMLA leave, he would have to voluntarily resign at the end of the 12-week period if he was unable to find a job and that this would leave him ineligible for unemployment benefits.

During the 14-day period, there was a part-time security position open which Nuzum could perform within his permanent restrictions. Ozark indicated to Nuzum this position was available. Nuzum expressly refused to pursue this position, apparently because it was financially unacceptable. Nuzum suggested two other, specific accommodations in his April 5 letter: (1) make him a supervisor or lead order picker, or (2) allow him to only pick auto belts.5 In addition, Nuzum stated he

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would accept any position within his restrictions if available. After the 14-day period expired without Nuzum identifying any open positions or accommodations that Ozark found reasonable and for which he was qualified, i.e., that were within his permanent restrictions, the Company terminated Nuzum's employment effective April 18, 2002.


Nuzum alleges that Ozark, his former employer, terminated him because of a disability and/or failed to accommodate his disability in violation of the ADA and the ICRA.6 Ozark contends these claims must be dismissed as a matter of law and brought its motion for summary judgment seeking that end.

A. Standard for Summary Judgment

"[C]laims lacking merit may be dealt with through summary judgment under Rule 56." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be rendered

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 a judgment as a matter of law.

Fed.R.Civ.P. 56(c). To avoid summary judgment, the nonmoving party must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. See Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wilson v. Southwestern Bell Tel. Co., 55 F.3d 399, 405 (8th Cir.1995); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("`The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'") (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

The nonmoving party must go beyond the pleadings, and by affidavits, depositions, answers to interrogatories, and admissions on file, designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir.1995) (finding that in employment discrimination cases, "the plaintiff's evidence must go beyond the establishment of a prima facie case to support a reasonable inference regarding the alleged illicit reason for the defendant's action."). While the quantum of proof that must be produced to avoid summary judgment is not precisely measurable, it must be enough evidence for a reasonable jury to return a verdict in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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In considering a motion for summary judgment, the Court must view all of the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts presented. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted); Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir.1996); Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir.1996). The question before this Court is whether the record, when viewed in the light most favorable to the nonmoving party, shows there is no genuine issue as to any material fact and that the...

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4 cases
  • Nuzum v. Ozark Automotive Distributors, 04-2850.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 27, 2005
    ...had failed to accommodate his disability. The district court entered summary judgment against him. Nuzum v. Ozark Auto. Distrib., Inc., 320 F.Supp.2d 852 (S.D.Iowa Summary judgment should be entered only if the evidence, viewed in the light most favorable to the nonmoving party, demonstrate......
  • Hansen v. Seabee Corp., 02-2071.
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    ...who could not bend more than eighty degrees or lift more than fifty pounds was not disabled); Nuzum v. Ozark Auto. Distribs., Inc., 320 F.Supp.2d 852, 868-70 (S.D.Iowa 2004) (holding a plaintiff who was "restricted from lifting more than 10 pounds constantly, more than 20 pounds frequently,......
  • Lytes v. District of Columbia Water and Sewer, Civil Action No. 05-402 (RMC).
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    • United States District Courts. United States District Court (Columbia)
    • December 13, 2007
    ...v. City of Erie, 216 F.3d 354, 362-63 (3d Cir.2000) (housework not a major life activity); Nuzum v. Ozark Auto Distributors, Inc., 320 F.Supp.2d 852, 862-63 (S.D.Iowa 2004) ("mowing the lawn, doing yard work, and performing other unidentified outside chores" and "lifting a laundry basket an......
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    ...federal or Iowa law, cases interpreting the ADA are relevant to the court's analysis. Nuzum v. Ozark Automotive Distributors, Inc., 320 F.Supp.2d 852, 858 (S.D.Iowa 2004); Barnes v. Northwest Iowa Health Center, 238 F.Supp.2d 1053, 1063-64 (N.D.Iowa 2002); Bearshield, 570 N.W.2d at In order......

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