Rakity v. Dillon Companies, Inc.

• Decision Date: 29 August 2002
• Docket Number: No. 01-1484.,01-1484.
• Citation: 302 F.3d 1152
• Parties: Charles L. RAKITY, Plaintiff-Appellant, v. DILLON COMPANIES, INC., a Kansas corporation d/b/a King Soopers, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

302 F.3d 1152

Charles L. RAKITY, Plaintiff-Appellant, v. DILLON COMPANIES, INC., a Kansas corporation d/b/a King Soopers, Inc., Defendant-Appellee.

No. 01-1484.

United States Court of Appeals, Tenth Circuit.

August 29, 2002.

Hugh S. Pixler of Gregson & Pixler, P.C., Denver, Colorado, for Plaintiff-Appellant.

Edward J. Butler (Raymond M. Deeny with him on the brief) of Sherman & Howard L.L.C., Colorado Springs, Colorado, for Defendant-Appellee.

Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and LUCERO, Circuit Judge.

BRORBY, Senior Circuit Judge.

Charles L. Rakity, a grocery clerk at King Soopers, sued his employer, arguing the supermarket chain's failure to promote him violated the Americans with Disabilities Act. After determining Mr. Rakity did not have a covered "disability" under 42 U.S.C. § 12102(2), the district court granted King Soopers' summary judgment motion. On appeal, Mr. Rakity argues summary judgment was inappropriate because (1) material evidence indicates Mr. Rakity has "a record of" and was "regarded" by King Soopers as having an impairment that substantially limits one or more of his major life activities under 42 U.S.C. § 12102(2)(B) & (C), and (2) the district court's decision requiring him to present evidence King Soopers regarded him as disabled in establishing a prima facie case of discrimination violated the order of proof model set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Our jurisdiction arises pursuant to 28 U.S.C. § 1291. After careful consideration, we affirm the district court's order granting summary judgment to King Soopers.

BACKGROUND

This case focuses on two of King Soopers' grocery clerk job classifications: "All purpose clerk" jobs and "general grocery clerk" jobs. King Soopers' "all purpose clerks" work as checkers, grocery stockers, and produce clerks. While the essential job functions of all purpose clerk positions are in dispute, both parties agree these positions normally require heavy lifting and repetitive tasks. For example, King Soopers states its grocery stocker position, which is classified as an all purpose clerk job, requires lifting from eleven to twenty-five pounds up to 60% of the time, twenty-six to forty pounds up to 40% of the time, forty-one to fifty pounds up to 60% of the time, and more than fifty-one pounds up to 20% of the time. In comparison, "general grocery clerks" receive less compensation than all purpose clerks, but may be assigned to jobs requiring less lifting, such as a service desk position.

King Soopers hired Mr. Rakity in 1976 and promoted him to an all purpose clerk classification in 1980. In subsequent years Mr. Rakity suffered from a variety of illnesses and injuries, some of which were sustained in work place accidents. For instance, Mr. Rakity obtained a hospital note with a "presumptive diagnosis" of "cold induced reactive airway disease." Records indicate Mr. Rakity used this note to obtain a job transfer to avoid work in the frozen foods section of the grocery store. In 1987, Mr. Rakity developed numbness and tingling in his hands from carpal tunnel syndrome. In early 1988, Mr. Rakity underwent corrective surgery on both arms. Mr. Rakity also reported pain in his shoulder that led to another 1988 surgery.

By 1988, Mr. Rakity's medical treatment had already created an extensive and at times unflattering record. For instance, one doctor specializing in Occupational Health and Rehabilitative Medicine wrote:

My impressions are that Charles Rakity is somewhat habituated to the workers' compensation system; I say this partly because of his requests for benefits which he has repeatedly [made] which include:

1. He has asked me to recommend a job change.

2. He has asked me to authorize him off for a week in May so that he can go to Las Vegas for his "psychological health".

3. He has asked me to in writing recommend a whirlpool or hot tub which he has priced at between $2,000 and $4,000. He justifies this by stating that one of his physicians in the past has recommended that he soak in hot water for 45 minutes a day.

At any rate, I believe that Mr. Rakity is not nearly as impaired as he believes that he is and that he will be returning to full duty at some time soon.

Similar statements appear throughout Mr. Rakity's medical records.

In 1989, Mr. Rakity began a second job, with a small whirlpool distribution and supply company called All City Pools. In this position, Mr. Rakity performed a variety of duties including selling spas to the public, running the store cash register, waiting on customers, answering telephone calls, completing paperwork, cleaning display spas on a daily basis, and helping deliver spas to residential homes. Mr. Rakity was also responsible for stocking All City Pools shelves with ten, twenty-five, forty, and fifty pound packages of whirlpool and spa chemicals. Mr. Rakity held this position from 1989 until 1997.

In January of 1992, Mr. Rakity received a $25,000 Workers Compensation settlement check for his 1987 shoulder and carpal tunnel injuries. Mr. Rakity next sought additional compensation from the state of Colorado, applying for permanent total disability benefits under the Colorado Worker's Compensation Act on March 13, 1992. Although he applied for permanent total disability benefits, Mr. Rakity admits he was working as a night crew grocery stocker and was classified as an all purpose clerk. In June 1992, Mr. Rakity reported re-injuring his shoulder when stopping a "U-boat" cart used to move groceries around the store. In the after-math of this injury, doctors temporarily restricted Mr. Rakity to lifting five pounds. Mr. Rakity then underwent a second shoulder surgery in October, and by November of 1992 had returned to full time work unloading groceries weighing over forty pounds from delivery trucks and stacking them throughout the supermarket. The next month, Mr. Rakity's surgeon, Dr. Evans, could find no medical cause for any problems with Mr. Rakity's hands or neck and "there [was] nothing organically wrong with his cervical spine." Dr. Evans' records also note Mr. Rakity "requested multiple times today to be kept on a permanently restricted duty [but] I cannot medically justify that."

Mr. Rakity reported another injury in October 1993. This time, Mr. Rakity explained he hurt his back while lifting two jugs of water. Dr. Scott Primack, a doctor specializing in physiatrics, found evidence of a herniated disc in the cervical spine and a degenerative disc in his thoracic spine. In November 1993, Dr. Primack also recommended Mr. Rakity not return to his all purpose clerk position because lifting would put Mr. Rackity and others at risk. In January 1994, Dr. Primack restricted Mr. Rakity to lifting ten pounds frequently and fifteen pounds occasionally. After an extensive functional capacity evaluation, Dr. Primack determined it would be safe for Mr. Rakity to work in a service desk job, classified as a general grocery clerk position, since that job requires little heavy lifting. One week later, Mr. Rakity applied to the Social Security Administration for Social Security Disability Benefits, claiming to be incapable of performing any meaningful work. In denying his application, the Social Security Administration determined Mr. Rakity's condition was "not severe enough to keep [him] from working." The Social Security Administration explained Mr. Rakity should "not do any heavy lifting, strenuous labor, or long periods of repetitive motion," but he "should be capable of performing light duty work." During this period, Mr. Rakity remained employed at his second job with All City Pools. After his disability benefits application was denied, Mr. Rakity returned to King Soopers and began working as a general grocery service desk clerk.

While his application for disability benefits from the federal government was still pending, Mr. Rakity also filed a discrimination charge with the Equal Employment Opportunity Commission. Unlike his simultaneous disability benefit application, Mr. Rakity's discrimination charge alleged he could complete the essential job functions of his position with reasonable accommodation from King Soopers. After receiving a right to sue letter from the Equal Employment Opportunity Commission, Mr. Rakity filed an Americans with Disabilities Act suit in October 1996.

By 1996, Mr. Rakity reported considerable improvement in his physical condition.¹ In May 1996, Mr. Rakity again visited Dr. Primack who revised his lifting restrictions to lifting up to twenty pounds frequently and forty pounds occasionally. Dr. Primack also restricted Mr. Rakity's repetitive motion to one hour at a time with a fifteen minute break of some non-repetitive activity in between. Following this evaluation, Joseph Brink, a King Soopers Workers Compensation specialist, exchanged a series of letters with Dr. Primack concerning Mr. Rakity's ability to continue performing as a general grocery service desk clerk. From this correspondence, Mr. Brink determined the service desk position exceeded Mr. Rakity's capabilities because it required constant repetitive motion. In June 1996, Mr. Brink filed a request with King Soopers' Employment Services Center asking it to find a different job for Mr. Rakity that would not exceed his restrictions. Nevertheless, Mr. Rakity returned to work as a general grocery clerk as part of an October 1996 deal settling the Americans with Disabilities Act lawsuit filed that month. Also pursuant to this agreement, King Soopers issued a second settlement check to Mr. Rakity — once again for $25,000.

Three months later, Mr. Rakity applied for a promotion. Mr. Rakity wanted to return to the more lucrative all purpose clerk classification that requires heavy lifting and constant repetitive motion. Stephanie Bouknight, a King Soopers labor relations manager, and Marc Gallegos in King Soopers' risk management...