Potvin v. Champlain Cable Corp., 95-385

• Decision Date: 18 October 1996
• Docket Number: No. 95-385,95-385
• Citation: 165 Vt. 504,687 A.2d 95
• Parties: , 155 L.R.R.M. (BNA) 2945, 6 A.D. Cases 1493, 9 NDLR P 23 Claire POTVIN v. CHAMPLAIN CABLE CORP.
• Court: Vermont Supreme Court

Page 95

687 A.2d 95

165 Vt. 504, 155 L.R.R.M. (BNA) 2945,

6 A.D. Cases 1493,

9 NDLR P 23

Claire POTVIN v. CHAMPLAIN CABLE CORP.

No. 95-385.

Supreme Court of Vermont.

Oct. 18, 1996.

Leslie C. Pratt, Montpelier, for plaintiff-appellant.

Coddy Marx, Patricia M. Sabalis and Anita R. Tuttle of Downs Rachlin & Martin, Burlington, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY ¹, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

This employment discrimination case raises two important issues: (1) whether an employee whose physical impairment limits her ability to work certain hours may be "substantially limit[ed]" for purposes of the Fair Employment Practices Act (FEPA), 21 V.S.A. § 495d(5)(A), and (2) whether federal labor law preempts a state-law disability discrimination claim brought by an employee who is covered by a collective bargaining agreement. The trial court held that plaintiff's claim is not preempted by federal law, but granted summary judgment to defendant on the ground that plaintiff's impairment did not substantially limit her ability to work. We agree that plaintiff's claim is not preempted, but conclude that plaintiff has made a sufficient factual showing to support her claim that she was substantially limited in her ability to work. Accordingly, we reverse the court's decision granting summary judgment to defendant.

I.

Plaintiff has been employed by defendant Champlain Cable Corporation since 1977. In 1988, she took a position as a first-shift expediter and remained in that position until October of 1990, when she discovered that she had ulcerative colitis. As a result of her medical condition, plaintiff underwent three surgeries in a procedure known as a colectomy, which ultimately resulted in the removal of her large intestines.

Plaintiff's first surgery occurred in November 1990 and caused her absence from work until January 14, 1991. When she returned to work, she continued in her position as a first-shift expediter. On February 20, 1991, plaintiff underwent a second surgery, the recovery from which resulted in her absence from work until May 1991. She once again returned to work as a first-shift expediter. After plaintiff returned to work, however, the company assigned her to the second shift, which was scheduled from 3:00 p.m. until 11:00 p.m. According to defendant, plaintiff was moved to the second shift to make defendant's business more responsive to the needs of companies on the West Coast, which do not close business until 5:00 p.m. Pacific Standard Time (8:00 p.m. Eastern Standard Time). Plaintiff, a member of the International Brotherhood of Teamsters, was chosen for the reassignment based on the seniority procedure dictated by the collective bargaining agreement.

In July 1991, plaintiff underwent her third surgery, and in October 1991, plaintiff was released by her doctor to return to work. At that time, plaintiff informed defendant that she could not return to work on the second shift because her physical condition caused her to have excessive bowel movements during the evening hours and required her to take frequent and lengthy restroom breaks. She supported this claim with a letter from her doctor stating that she should return to work the day shift. Plaintiff requested that she be given a first- or third-shift position or, in the alternative, be given a light-duty second-shift position. Defendant refused her request and told her that she could return as a second-shift expediter or not return at all. Five months later, in March 1992, defendant offered plaintiff a position as a spark tester on the third shift, which plaintiff accepted. She is currently employed by defendant as a first-shift utility operator.

In October of 1992, plaintiff filed suit against defendant, alleging that defendant had discriminated against her based on her gender ² and handicap. Defendant moved for summary judgment, arguing (1) that plaintiff's claims were preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1988), (2) that plaintiff was barred from bringing the suit because she had failed to use the grievance procedure established by the collective bargaining agreement, and (3) that plaintiff had failed to establish that she was a "handicapped individual" for the purposes of FEPA. See 21 V.S.A. § 495d(5)(A) ("handicapped individual" defined as person who "has a physical or mental impairment which substantially limits one or more major life activities"). The trial court held that plaintiff's claim was not preempted, but ruled in favor of defendant on the ground that plaintiff's impairment was not "substantially limiting." The court did not reach defendant's argument that plaintiff had failed to exhaust the remedies provided by the collective bargaining agreement. Plaintiff appealed. Defendant cross-appealed, urging the preemption and exhaustion arguments as alternative bases for the court's decision.

II.

We begin by considering the court's decision to grant summary judgment to defendant on the ground that plaintiff failed to show that she was a "handicapped individual" as defined by FEPA. See id. When reviewing a grant of summary judgment, this Court applies the same standard as the trial court. Massachusetts Mut. Life Ins. Co. v. Ouellette, 159 Vt. 187, 189, 617 A.2d 132, 133 (1992). Summary judgment should be granted when, taking all the allegations made by the nonmoving party as true and giving the nonmoving party the benefit of all doubts and inferences, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id. "Where the moving party does not bear the burden of persuasion at trial, it may satisfy its burden of production by showing the court that there is an absence of evidence in the record to support the nonmoving party's case.... The burden then shifts to the nonmoving party to persuade the court that there is a triable issue of fact." Ross v. Times Mirror, Inc., 164 Vt. 13, ----, 665 A.2d 580, 583 (1995).

As in any handicapped-discrimination claim brought under FEPA, the "first issue ... is whether the plaintiff is a 'handicapped individual' and thus within the protection of the Act." Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 163, 624 A.2d 1122, 1129 (1992); see 21 V.S.A. § 495(a)(1) ("It shall be unlawful employment practice ... [f]or any employer ... to discriminate ... against a qualified handicapped individual.") The statute defines a handicapped individual as a person who "has a physical or mental impairment which substantially limits one or more major life activities." 21 V.S.A. § 495d(5)(A). As defendant does not dispute that plaintiff's medical condition is a "physical impairment," the only question to be resolved is whether her impairment is "substantially limiting."

There is no simple test or bright-line rule to aid in answering this question. The statute gives only an imprecise definition: " 'Substantially limits' means the degree that the impairment affects an individual's employability. A handicapped individual who is likely to experience difficulty in securing, retaining, or advancing in employment would be considered substantially limited." 21 V.S.A. § 495d(8). Under the Americans with Disabilities Act (ADA), which employs identical language, see 42 U.S.C. § 12102(2) (Supp. II 1990), "substantially limits" has been defined as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3) (1995). ³ Unlike, for example, the regulations governing federal disability benefits, see 20 C.F.R. Pt. 404, Subpt. P, app. 1 (1996), the Equal Employment Opportunity Commission has not developed a "laundry list" of impairments that are considered substantially limiting. 29 C.F.R. Pt. 1630 app. (1995). Rather, the guidelines make clear that the determination must be made on a case-by-case basis. Id.

The trial court, in finding that plaintiff was not substantially limited, relied primarily on plaintiff's statement in her interrogatories that she had been able to "perform full time regular duty" since her return to work, and that "she would have been able to perform [her] regular duties in [her] prior job even if [she] had been hired back in such a position." Apparently, the court treated this statement as an admission by plaintiff that she was able to work as a second-shift expediter, rather than an assertion by plaintiff that she was "capable of performing the essential functions of the job." 21 V.S.A. § 495d(6). Given plaintiff's consistent position that she was able to perform the requirements of the expediter position, but not able to work the second shift, we are not persuaded that this statement was an admission that plaintiff was in fact capable of working as a second-shift expediter. The interpretation adopted by the trial court is inconsistent with plaintiff's deposition testimony, her doctor's letter advising her to work the first shift, and her supervisor's concession in his deposition that "[i]t was pretty clear from the doctor's notes that [plaintiff] was unable to work second shift." At most the statement is ambiguous, and on defendant's motion for summary judgment we allow plaintiff the benefit of the doubt.

In any event, defendant does not press the argument that plaintiff was capable of working the second shift. Rather, defendant emphasizes plaintiff's return to work after five months as evidence that she was not substantially limited in her ability to work. We note first that plaintiff's return to work on the third (and later the first) shift is unrelated to her claim that she was substantially limited because she was unable to work second-shift hours. From the beginning, plaintiff asked to be moved to the first or third shift, and she has consistently maintained that she was able to work at those times. More...