Reese v. Owens-Corning Fiberglas Corp.

• Decision Date: 07 October 1998
• Docket Number: No. 96-2048-JWL.,96-2048-JWL.
• Citation: 31 F.Supp.2d 908
• Parties: William Earnest REESE, Plaintiff, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant.
• Court: U.S. District Court — District of Kansas

31 F.Supp.2d 908

William Earnest REESE, Plaintiff, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant.

No. 96-2048-JWL.

United States District Court, D. Kansas.

October 7, 1998.

Barry R. Grissom, Overland Park, KS, Jeanne Gorman Rau, McAnany, Van Cleave & Phillips, Kansas City, MO, Anthony F. Rupp, Daniel D. Owen, Shughart, Thomson & Kilroy, Overland Park, KS, Thomas L. Thurston, Dwyer, Dykes & Thurson, Overland

Park, KS, J. Shane Rockey, Kansas City, KS, for Plaintiff.

Douglas C. McKenna, Leland H. Corley, Kevin F. Warren, Lewis, Rice & Fingersh, L.C., Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff William Earnest Reese filed suit against defendant Owens-Corning Fiberglas Corporation alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., arising out of his employment with defendant. Specifically, plaintiff claims that defendant placed him in a work-hardening program on the basis of his race, denied him accrued seniority on the basis of his race, failed to accommodate his disability, and terminated his employment on the basis of his race and disability. Plaintiff further asserts that defendant terminated his employment in retaliation for his filing an EEOC charge and subsequent lawsuit. This matter is presently before the court on defendant's motion for summary judgment (doc. # 72). For the reasons set forth below, defendant's motion is granted in part and denied in part. Specifically, the court denies defendant's motion with respect to plaintiff's claim that he was placed in a work-hardening program on the basis of his race and denies defendant's motion with respect to plaintiff's loss-of-seniority claim. The court grants defendant's motion on plaintiff's remaining claims.

I. Facts¹

Plaintiff began his employment with defendant in 1976 as a checker transporter at defendant's warehouse in Kansas City, Kansas. As a checker transporter, plaintiff operated a lift truck with which he loaded and unloaded goods from trucks and rail cars at the warehouse. At all relevant times, plaintiff was a member of a bargaining unit covered by a series of collective bargaining agreements between defendant and the United Brotherhood of Teamsters, Local 541, AFL-CIO.

The first fifteen years of plaintiff's employment are not relevant to the issues before the court. In November 1991, plaintiff sustained a non-work-related injury. As a result of this injury, plaintiff was placed on sick leave for over three years. On February 22, 1995, plaintiff returned to work with no restrictions. Upon his return to work, defendant informed plaintiff that he would not be allowed to accrue departmental seniority for the period of his sick leave.² Plaintiff filed a grievance with respect to this decision. Plaintiff's grievance was granted at the third-step grievance meeting.³ As a result, plaintiff accrued departmental seniority for the entire period of his sick leave.

In October 1995, plaintiff filed a charge of discrimination with the EEOC alleging that defendant discriminated against him on the basis of his race by placing him in a work-hardening program before allowing him to return to work in February 1995. Plaintiff's charge reads as follows:

After requesting to return to work while I was on sick leave, I was placed in a work hardening program at a rehabilitation center in North Kansas City in early December 1994. I believe I should have already been back on the job by this time. While I was in the work hardening program I was required to lift 70 lbs. before Respondent would return me to my job. I am aware of other employees who were on either sick leave or work hardening who were not required to lift 70 lbs. to return to work.

I believe I was treated this way due to my race, Black, in violation of the Civil Rights Act of 1964, as amended.

Plaintiff also attached an affidavit to his charge. The affidavit primarily sets forth additional details with respect to the alleged lifting requirement. The last paragraph of the affidavit, however, reads as follows:

I was returned to the job with full seniority. On 3/23/95 Mike Bonin changed my seniority date to 1/17/80. I grieved this and it went to the third step. As a result of my grievance I was returned to full seniority as of May 9, 1995.⁴

There are no other allegations with respect to his loss of seniority in the affidavit.

A "Notice of Charge of Discrimination," along with a copy of plaintiff's charge of discrimination, was sent to Doug Healy in defendant's Human Resources Department. According to the notice, "no action" was required by defendant with respect to the notice. The EEOC issued plaintiff a right-to-sue letter a few weeks later. On January 24, 1996, plaintiff filed a pro se complaint in federal court alleging race discrimination.

On January 26, 1996, plaintiff telephoned defendant to request that he be placed on non-occupational sick leave due to an injury he sustained while shoveling snow. Plaintiff indicated that he would be available for work on February 3, 1996. Defendant granted plaintiff's request, subject to verification from plaintiff's treating physician. Mary Roland, defendant's occupational health nurse, sent plaintiff a standard sick leave letter and a short term disability form to be completed and returned by plaintiff.

The short term disability form used by defendant consists of two parts, a section to be completed and signed by the employee and a section to be completed and signed by the employee's treating physician. The sick leave letter advises the employee, inter alia, that an unreasonable delay in returning the short term disability form may result in an unverified sick leave and the receipt of absentee occurrences for the work days missed. Plaintiff received these forms on February 1, 1996.

On February 2, 1996, plaintiff telephoned defendant and requested an indefinite extension of his sick leave. Again, defendant granted plaintiff's request subject to verification from plaintiff's treating physician. Ms. Roland sent plaintiff an "extended sick leave" letter and another short term disability form. Plaintiff received these forms on February 7, 1996.

On February 12, 1996, defendant received from plaintiff the first short term disability form relating to his initial request for sick leave. Plaintiff's physician, Dr. Glenn Barr, indicated that plaintiff had sustained a lumbar sacral injury. With respect to treatment, Dr. Barr recommended anti-inflammatory medications, heat and rest. Moreover, Dr. Barr indicated the frequency of treatment as "weekly." Although Dr. Barr listed plaintiff's prognosis as "guarded," he expected plaintiff to return to work on February 9, 1996.

On February 19, 1996, defendant received from plaintiff the second short term disability form. The information as to treatment and prognosis were identical to the initial form. Plaintiff's expected return to work date, however, was listed as February 20, 1996. On February 21, 1996, plaintiff again telephoned defendant and requested another extension of his sick leave for an indefinite duration.

On February 27, 1996, plaintiff again telephoned defendant to request another extension of his sick leave. Plaintiff indicated that he expected to return to work on March 7, 1996. Accordingly, defendant sent plaintiff another "extended sick leave" letter and a short term disability form. Plaintiff hand-delivered the completed short term disability form to Ms. Roland on March 11, 1997. The form was identical to the two previous short term disability forms with respect to diagnosis treatment plan, and prognosis. The frequency of treatment, however, had been changed from "weekly" to "monthly." Dr. Barr listed plaintiff's expected return to work date as March 23, 1996.

When plaintiff gave the form to Ms. Roland on March 11, 1996, Ms. Roland informed plaintiff that she was unable to certify his request for an extended sick leave beyond February 20 (the expected return-to-work date of the last approved request) without additional information from plaintiff's physician.⁵ Accordingly, Ms. Roland asked plaintiff to sign a release so that she could obtain additional information from his physician to verify plaintiff's sick leave request. Plaintiff refused to sign the release and told Ms. Roland that he would contact Dr. Barr himself. Thus, Ms. Roland informed plaintiff that he had one week, or until March 18, 1996, to obtain the additional information from Dr. Barr.

Plaintiff failed to provide the requested information by March 18, 1996.⁶ Ms. Roland notified Kelly Keeton, defendant's Human Resources Specialist, that plaintiff's request for an extension of his sick leave had not been certified. Ms. Keeton terminated plaintiff's employment effective March 19, 1996.

On April 2, 1996, plaintiff filed a second charge of discrimination with the EEOC alleging that he was terminated in retaliation for filing the October 1995 charge and subsequent lawsuit.⁷ In September 1996, plaintiff filed a third charge of discrimination. In this charge, plaintiff alleged that his termination violated Title VII and the ADA.

II. Summary Judgment Standard

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). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, ...