Rando v. Texaco Refining and Marketing Inc.
| Citation | 165 F.Supp.2d 1209 |
| Decision Date | 31 August 2001 |
| Docket Number | No. 99-4083-DES.,99-4083-DES. |
| Parties | Edward RANDO, Plaintiff, v. TEXACO REFINING AND MARKETING INC. and Equilon Enterprises LLC, Defendants. |
| Court | U.S. District Court — District of Kansas |
William L. Fry, Tulsa, OK, for Plaintiff.
Jill Frost, Franke & Schultz, P.C., Kansas City, MO, for Defendant.
This matter is before the court on defendants' Motion for Summary Judgment (Doc. 14) brought pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiff has filed a response (Doc. 24), and defendants have filed a reply to plaintiff's response (Doc. 27). Plaintiff alleges violations under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981. For the following reasons defendants' motion is granted.
The following facts concerning plaintiff's claims are either uncontroverted or, if controverted, are construed in a light most favorable to the plaintiff.
Plaintiff was born in Iran but is of Assyrian descent. He speaks with a slight accent and has dark skin. Plaintiff began working for defendants in 1977 at the El Dorado, Kansas, plant. During his tenure with defendants, plaintiff obtained welding skills and became a Mechanical Specialist in the plant's Maintenance Department. It is uncontroverted that during his time with defendants, plaintiff was often subjected to ethnic slurs such as "camel jockey" by a manager in his department.
Plaintiff suffered a neck injury in 1986 when he was hit by a concrete slab. After recuperating from this injury, he returned to work. In 1990, plaintiff underwent surgery for a herniated disc in his neck. Again, after the surgery, he returned to work, but was put on light duty for about four months. Subsequently, in 1993, plaintiff injured his neck again, but continued to work. In 1994, plaintiff applied and was considered for the job of Area Foreman, but was not awarded the position. Plaintiff was on the job until July 31, 1995, when he underwent shoulder surgery and was placed on medical leave. While on medical leave plaintiff continued to experience neck and shoulder problems. Finally, in June of 1996, plaintiff underwent a final surgery to his neck for two herniated discs. Following this surgery plaintiff underwent a work hardening program that caused severe pain and stiffness. He ended this program in November of 1996.
On November 26, 1996, plaintiff's doctor issued a work release allowing plaintiff to return to work with permanent restrictions including: occasional twenty pound lift limit, frequent ten pound lift limit, limited overhead reaching with right arm, approximately one and a half pound weight limit for welding hood, occasional climbing of ladders, no work in cramped quarters and moderate pulling, twisting and pushing. (Pl.Ex. 8 and 9). On December 17, 1996, defendants' human resource managers met with plaintiff and his wife to discuss the option of returning to work. Because plaintiff was still suffering from the pain caused by the work hardening program, he indicated he was unable to return to work at any position in the plant. The human resources manager, Dolores Rogers, advised plaintiff that defendants would sever the employment relationship. On December 18, 1996, the very next day, plaintiff informed defendants he would be able to return to work if the company provided him an adjustable, tiltable welding table and an air lift.
Meanwhile, representatives from plaintiff's union began contacting the defendants' human resources department, requesting defendants return him to work quickly after his surgery. The first letter from the union, dated July 16, 1996, requested that defendants return plaintiff to work in "some capacity." (Pl.Ex. 10). Plaintiff sent a similar letter on the same day requesting to be put back to work. (Pl.Ex. 11). Also, Mike Maloney ("Maloney") a union representative, contacted defendants' human resources department on many occasions. According to Maloney's affidavit, defendants' human resource representatives, "kept insisting that Mr. Rando was too disabled to work [at the plant]," and they "remained adamant that the company was not going to take him back and that he had to take the company's Permanent Total Disability Plan." (Maloney Aff. at 3). Additionally, plaintiff's workman's compensation attorney wrote a letter to defendants, dated January 6, 1997, demanding plaintiff be accommodated and put back to work. (Pl.Ex. 13). Any refusal to do so, stated the letter, would be seen as a violation of plaintiff's rights under the ADA.
In late January of 1997, the position of Maintenance Planner was posted at the refinery. Plaintiff did not know about the posting and did not apply for the position. At the time plaintiff had been on medical leave for over a year and a half. Plaintiff is unaware of the qualifications of the individual who received the job of Maintenance Planner.
After plaintiff's continuous requests to return to work, defendants hired Ron Combs, a vocational rehabilitation specialist to determine whether plaintiff's permanent restrictions would prevent him from performing the duties of a Mechanical Specialist. (Doc. 15, at 5). On February 24, 1997, Mr. Combs issued a report finding there were no reasonable accommodations available that would allow plaintiff to perform all the tasks of a Mechanical Specialist. (Def.Ex. B). Additionally, in April of 1997 plaintiff met with Jeff Krafve, a manager in the maintenance department, and Alan Kelly, plaintiff's co-worker. The purpose of the meeting was to convince Mr. Krafve that plaintiff could perform the functions of his job. Mr. Krafve attempted to bring plaintiff back to work, but the human resources department adhered to it's original position taken on December 17, 1996, i.e. that plaintiff could not return to work. On July 1, 1997, plaintiff filed a complaint for discrimination against the defendants jointly with the Kansas Human Rights Commission ("KHRC") and the Equal Employment Opportunity Commission ("EEOC").
On May 29, 1998, plaintiff penned a letter to defendants once again requesting his return to work. (Def.Ex. C). In a letter dated July 6, 1998, defendants replied to plaintiff's letter stating plaintiff would have to provide the company with an updated medical certificate showing his medical condition had changed. (Def.Ex. D). On November 23, 1998, plaintiff provided defendants with a medical certificate listing his permanent restrictions. (Pl.Ex. 9). Once again, defendants hired Ron Combs to determine whether plaintiff could perform the essential functions of a Mechanical Specialist. In a report dated December 3, 1998, Mr. Combs affirmed his original findings from the previous report concluding plaintiff would be unable to safely perform the functions of the job. Plaintiff remained on a no-pay leave of absence.
Plaintiff began doing contract welding work for Treatco, Inc., which required working full days performing essentially the same tasks required of a Mechanical Specialist at defendants' El Dorado plant. On October 2, 1998, a video was made of plaintiff demonstrating his work functions at Treatco. After viewing the video tape, defendants' human resources representatives continued to refuse plaintiff's requests to return to work.
Plaintiff's grievance with defendants was arbitrated pursuant to the terms of the collective bargaining agreement between the defendants and the plaintiff. On April 12, 1999, the arbitrator found plaintiff's permanent medical restrictions on lifting and reaching rendered him unable to perform the functions of a Mechanical Specialist. The plaintiff was released shortly after the arbitration hearing.
Finally, during the course of plaintiff's litigation in this matter he has applied to the Social Security Administration ("SSA") on multiple occasions requesting Social Security Disability Insurance ("SSDI"). On each occasion plaintiff has represented to the SSA that he was unable to work due to his disabilities. (Def. Ex. G, H, I, and J).
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by `showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. 2548. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to...
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