Ross v. Campbell Soup Co.
| Decision Date | 26 October 2000 |
| Docket Number | No. 99-4203,99-4203 |
| Citation | 237 F.3d 701 |
| Parties | (6th Cir. 2001) Dale Ross, Plaintiff-Appellant, v. Campbell Soup Company, Defendant-Appellee. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 98-00196, Kathleen McDonald O'Malley, District Judge.
Andrew L. Margolius, Cleveland, Ohio, for Appellant. Susan M. DiMickele, SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for Appellee.
Ronald J. James, SQUIRE, SANDERS & DEMPSEY, Cleveland, Ohio, Susan M. DiMickele, SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for Appellee.
Before: DAUGHTREY and CLAY, Circuit Judges; COHN, District Judge*.
In this Americans with Disabilities Act (ADA) case, the plaintiff, Dale Ross, appeals the district court's order granting summary judgment to the defendant, Campbell Soup Company, based on the court's determination that Ross had failed to present evidence of discrimination on the basis of disability under the ADA, 42 U.S.C. §§ 12101-12213 (2000). On appeal, Ross claims that the district court erred in finding no issue of material fact on three points: (1) that Ross was not disabled within the meaning of the Act; (2) that Campbell Soup did not regard Ross as disabled within the meaning of the Act; and (3) that Ross did not present direct evidence of discrimination on the basis of disability. Although we conclude that the district court was correct in its ruling with regard to the question of Ross's actual disability, we further conclude that there exists a genuine issue of material fact concerning the company's alleged perception that Ross was disabled within the meaning of the ADA.
Ross's position at the company was that of sales merchandiser working exclusively in Campbell's frozen foods division. His primary responsibility was traveling between corporate customers in his sales area and presenting proposals for the sale and display of Campbell's product. As part of his job, Ross was required to lift cases of Campbell's frozen foods, which generally weigh around ten pounds. According to Ross's deposition testimony, he was never required to lift more than one case of frozen food at a time.
During his employment at Campbell, Ross suffered a series of five back injuries. The first, a lumbar strain, occurred in 1987, causing Ross to miss three weeks of work. He next suffered a back spasm in 1989 while lifting, but the record does not indicate how long Ross was absent from work as the result of this injury. Ross then suffered a lumbar strain in 1991, which caused him to be out of work for three more months, and a lumbar tightening in May 1993, which led to a two-month absence. Ross did not request accommodation from Campbell after any of these injuries, nor did he ever specifically state to Campbell that he suffered from a disability. Indeed, Ross testified that it was his understanding each time he returned to work that he was not under any restrictions, "because [he] was not allowed to return to work until [he] was, in Campbell's eyes, a hundred percent."
Finally, Ross injured his back a fifth time on December 3, 1993, while reaching into a company car. The injury was diagnosed as lumbar-sacral strain. On December 20, Ross obtained a disability certificate form from his physician, Dr. George Randt. The form indicated that Ross could return to work on "approximately" January 2, 1994, and, as between options to indicate that the patient could return to either "light" or "regular" work, Dr. Randt selected "regular" work. Ross provided this form to Campbell but told his supervisors that he was still in pain, was seeking a second medical opinion, and would not return to work on January 2 as planned. Ross then saw a second physician, Dr. Jeffrey Wilber, who recommended Ross have a magnetic resonance imaging test performed to assess the condition of his spine. According to Ross, the MRI indicated a protruding disc and two degenerative discs in his lower back and, as a result, Dr. Wilber suggested that he avoid heavier lifting and bending at work. Ross also testified that in December 1994 -- after he had been fired from Campbell Soup -- Dr. Wilber specifically instructed him not to lift more than 25 pounds. There is in the record a report from a physical therapy clinic indicating that Ross received treatment for the December 1993 injury, that he was considered at that time to be unable to "resume normal work activities such as lifting, reaching, stooping and twisting due to increased low back pain, decreased flexibility and strength," and that he had "[m]oderate limitation in forward bending, backward bending, and rotation with increased pain."
However, Ross did not communicate these diagnoses to his supervisors at Campbell Soup Co., fearing, he later testified, that he would lose his job. He admitted that he had not suffered adverse job consequences after any of his prior back injuries, but pointed to a comment made by a supervisor, Bill Holder, during his 1993 performance evaluation, that "[w]e can't have any more of this back thing." Ross also testified that during the time he was off work for his last injury, Campbell employees followed him to medical appointments, obtained medical records from his doctors, and spied on him at his home. In fact, Charles Carter, a Campbell supervisor, testified that he "checked up" on Ross while Ross was away from work because of his back problems, and another Campbell employee testified that a supervisor had commented that he was sorry Ross had put up a fence around his home which kept the supervisor from being able to see what Ross was doing while out on disability leave.
On February 17, 1994, Joe Patin, director of frozen food at Campbell Soup Co., sent a memo titled "Dale Ross Back Injury History" to Bill Holder, another of Ross's supervisors. The memo indicated the date of each of Ross's injuries, the injury's cause (all bending or lifting while performing the duties of his job), the medical diagnosis, and the date Ross returned to work after the injury. The memo also noted, "The above injuries all occurred while performing normal job duties for Dale's position."
Soon after the circulation of this memo, Ross was called in to a meeting with Patin and Holder. According to Ross, the conversation at this meeting started with Holder saying that the company had experts who could assist Ross in creating a resume to help him find a new job. Ross said that he asked if he was being terminated and was told he was not, but that if he did not return to work, it would be considered job abandonment. On February 25, 1994, Joe Patin sent Ross a memo that read:
This will confirm my conversation with you in which I told you that we have reviewed our recent conversation and have determined, in light of Dr. Randt's full medical release, that you must return to full work activities immediately. Your failure to do so could result in your termination.
Ross testified that he protested this order to return to work, but could not obtain authorization from his physician to remain on disability leave because his physician was recovering from surgery and was not in the office. In any event, Ross did return to work shortly after his receipt of the February 25 memorandum.
On June 30, 1994, Ross was given his annual performance review, which was largely negative. Up to this point, Ross had received marks of either "meets" or "exceeds expectations" in his performance reviews. In the 1994 evaluation, Ross received for the first time a series of "needs improvement" and "unsatisfactory" marks. Comments were made on the evaluation that Ross needed to increase communication with his supervisors, and also that he needed to improve his style of dress. After this negative performance assessment, Ross was placed on a 90-day probationary period.
During the probationary period, Ross's performance goals were increased significantly. For example, Ross's goal for sales of product was increased by 66 percent, and the number of displays Ross was to market was tripled. Carter testified that Ross's goals were heightened for the probationary period as an incentive measure to get Ross to "go after his potential and be able to deliver what he was capable of doing." Joe Patin said that he did not recall why Ross's objectives were raised. Ross believed that the increase in his performance goals was a discriminatory attempt to cause him to fail. He also testified that his sales territory was less productive than that of his co-workers, and that he therefore should not have been held to the same standards as workers with more densely populated sales areas or headquarters in their territories. Indeed, Patin admitted in his deposition that Ross's territory had "less potential" and was "a lot less productive" than other employees' territories. But Ross also took a planned vacation during his probationary period, against the advice of his supervisors.
On July 11, 1994, Ross wrote a letter to Patin expressing his concern about the performance objectives for his probationary period. Ross noted in the letter that his goal for total cases sold had been raised to 416 cases per week, but that Bill Martin, another employee, had recently been honored in "In The Spotlight," a newsletter produced by the company, for selling 225 cases in one week. Ross disputed other comments that he had received in his evaluation, asked for specific examples and comments of skills he could improve, and ended the letter by writing, Ross testified...
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