Ricks v. Xerox Corp.

• Decision Date: 14 February 1995
• Docket Number: No. 93-2545-JWL.,93-2545-JWL.
• Citation: 877 F. Supp. 1468
• Parties: William T. RICKS, Plaintiff, v. XEROX CORPORATION, a New York Corporation, Defendant.
• Court: U.S. District Court — District of Kansas

877 F. Supp. 1468

William T. RICKS, Plaintiff, v. XEROX CORPORATION, a New York Corporation, Defendant.

No. 93-2545-JWL.

United States District Court, D. Kansas.

February 14, 1995.

COPYRIGHT MATERIAL OMITTED

Kenneth P. Seck, Overland Park, KS, Leon B. Seck, Kansas City, MO, for plaintiff.

Shelly L. Freeman, William H. Sanders, Sr., John R. Phillips, Peter T. Niosi, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, MO, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff, William T. Ricks, has sued his employer, Xerox Corporation ("Xerox"), for employment discrimination on the basis of an alleged disability and also on the basis of his age, in violation of the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Xerox has moved for summary judgment on both claims (Doc. # 25). For the reasons set forth fully below, defendant's motion is granted and plaintiff's claims are dismissed with prejudice.

I. Facts

The following facts are uncontroverted for purposes of this motion.¹ Plaintiff was employed by Xerox from August 13, 1973 to April 28, 1993. Until April 24, 1989, plaintiff worked as a Customer Service Engineer in charge of installing, maintaining and repairing Xerox photocopiers. On that date he was involved in an automobile accident which resulted in injuries to his back and knee. He was diagnosed at the time with bulging intervertebral disks, L-4-5, L5-S1, acute lumbar strain and degenerative disk disease, and with a herniated intervertebral disk.

Plaintiff did not return to work after the accident, but instead received short-term disability benefits in accordance with Xerox personnel policies. He received such benefits for five months and then was placed on Xerox' long-term disability plan. According to Xerox policy in force from 1989 to 1993, a disability for which an employee may receive long-term benefits is defined as:

the inability of an employee to be employed in any substantial and gainful work either inside or outside of Xerox because of personal impairment caused by injury or illness, occupational or non-occupational, provided that such inability is certified in writing by a licensed physician or a recognized medical practitioner acceptable to Disability Services.

In March of 1990, Xerox Disability Services received a letter from Dr. Stephen L. Reintjes stating that he had examined Mr. Ricks with respect to his back injuries and that it was his opinion that Mr. Ricks could return to work without restrictions. In May of 1990, Dr. John Pazell examined plaintiff with respect to the injury to his right knee and released him to work with no restrictions concerning that knee.

Xerox Disability Services determined that plaintiff had been cleared for work and attempted to reinstate him to his regular employment in May of 1990. In response, plaintiff wrote Xerox and stated that while he would report to work as directed, he felt he was "not fully recovered from his injuries and therefore not completely healthy." Def's Mot.Summ.J.Ex. 8.

Plaintiff was not reinstated, but instead returned to Dr. Reintjes on May 21, 1990 complaining that he could not go back to work due to his back and knee pain. Dr. Reintjes recommended that plaintiff enter a "work hardening program" at Baptist Medical Center and undergo evaluation there. He also stated that plaintiff should make an appointment to see him after the therapy and that "hopefully at that time" he could release him for work. Id., Ex. 10. Plaintiff never attended the program, allegedly because it was not covered by his insurance.

Plaintiff was referred to another doctor, Thomas Cuevas, with whom he visited on June 27, 1990. Dr. Cuevas recommended rehabilitation at the University of Kansas Medical Center. A case manager of the spine rehabilitation program at the center reported, among other things, the following to Dr. Cuevas:

Behavioral: As a result of his pain, Mr. Ricks has experienced an inability to work as well as decreased general functional ability. Activities of daily living, include performing self-care tasks, meal preparation and visiting with friends/family. He relates that he's able to function at a slow steady pace all day if he avoids pushing/pulling and lifting. He has only needed to stay in bed 2 times because of pain since the onset of his pain. Patient denies having trouble falling asleep or waking up throughout the night ... Patient relates that if he was without pain, in addition to working, he would like to be involved with housework chores, yardwork, playing table tennis and bowling. He believes that if he engages in these activities the likelihood for permanent damage increases.

The same therapist noted after seeing plaintiff that "his attendance at therapy has been sporadic and his attitude has been somewhat disinterested to date ... If we do not see any changes we'll document and discharge."² Id., Ex. 13.

On December 4, 1990, Dr. Cuevas again saw plaintiff and reported that, although he could not comment on the degree of total disability of Mr. Ricks, plaintiff had a limited range of motion in the lumbar spine and should avoid repeated bending or stooping and lifting over twenty pounds. He further noted that "patient was not placed off work by this examiner." Ten days later Dr. Cuevas recommended outpatient physical therapy, but noted that plaintiff declined any further therapy because it had not helped in the past.

In February of 1991, Xerox again attempted to remove plaintiff from long-term disability and place him on some sort of active status. Based on information received from physicians who examined plaintiff, Xerox attempted to find plaintiff a position subject to the following restrictions: no repetitive bending or stooping and no lifting above twenty pounds.³ Xerox created an Administrative Aide position for plaintiff which it believed would be consistent with the restrictions placed upon him.⁴ Although the position was less demanding than plaintiff's previous one, plaintiff nevertheless was to be paid the same annual salary that he would have received if he were continuing in his previous position.

On March 7, 1991, after Xerox informed plaintiff that he was expected to return to work, plaintiff sought additional treatment from Dr. Cuevas. He left a message with Dr. Cuevas' office that he had been released to return to work, but that he was not able to do so. In response, Dr. Cuevas wrote that "Patient was allowed to return to work with restriction. This will not be changed unless a new problem were to develop."

On March 18, 1991, plaintiff accepted the Administrative Aide position and returned to work. This lasted, however, only a few days and plaintiff was eventually placed back on long-term disability. After this failed attempt, plaintiff never again performed work for Xerox.

On April 24, 1991, Dr. Chris J. Maeda reported that plaintiff had a severely degenerated disc at L4-L5 with a vacuum phenomenon and severely bulging annalist which could be considered borderline herniated. Although he recommended that plaintiff consider returning to work, plaintiff was reluctant to do so. He then referred plaintiff to the Menorah Pain Clinic. In January of 1992, Dr. Maeda again diagnosed an injured and degenerated disc at L4-L5. He recommended that plaintiff avoid repetitive bending, stooping, lifting and carrying, and stated that plaintiff could return to work at any time so long as those restrictions were met. Plaintiff did not return to work.

On May 29, 1992, Travelers Insurance Company ("Travelers")⁵ requested that plaintiff provide updated information to support the continuation of disability benefits. Hearing no response from plaintiff, Travelers sent a certified letter on July 30, 1992, informing plaintiff that if he failed to return completed forms verifying his eligibility for continued benefits within fifteen days, Travelers would assume that he was no longer disabled and his benefits would terminate. Plaintiff did not respond. Travelers informed Mr. Ricks by certified letter of September 15, 1992 that due to the lack of response, his file had been closed and his benefits terminated.

Soon thereafter, plaintiff again saw doctors who referred him to physical therapy. He missed four of seven scheduled therapy sessions. Dr. Frank H. Ise, an orthopedist, examined plaintiff and noted that plaintiff could not lift more than twenty pounds, could not operate trucks or heavy machinery, could not walk on uneven ground and could not push, pull, kneel, crouch, stoop, bend, or reach above shoulder level.

Based on that information, Travelers determined that plaintiff could return to work and that his benefits would again cease. Xerox Human Resource Operations Manager JaAnn Couto initiated a second job search to determine whether there was an available full-time job within plaintiff's operating group which he was capable of performing and for which he was qualified. Ultimately, no job was found.

On January 27, 1993, plaintiff appealed the termination of his long-term disability benefits. As a result of the appeal, the job search for plaintiff was placed on hold. The termination of benefits was eventually upheld by Travelers on April 2, 1993. By that time, plaintiff had received $50,000 in long-term disability benefits under the Xerox plan.

Dr. Ise testified by deposition that as of March 16, 1993, plaintiff had full range of motion of the lumbosacral spine without increased pain and that there was no indication that plaintiff was substantially limited in his ability to learn, talk, hear, speak, breathe, perform manual tasks, or in his ability to care for himself. He also noted that plaintiff was able to climb on and off the examining table without apparent pain and to move about the room without demonstrable difficulty. Finally, he noted that plaintiff was able to work full-time, but...