Rutlin v. Prime Succession, Inc.

• Citation: 75 F.Supp.2d 735
• Decision Date: 09 June 1999
• Docket Number: No. 5:98-CV-117.,5:98-CV-117.
• Parties: David A. RUTLIN, Plaintiff, v. PRIME SUCCESSION, INC., and Kerley & Starks Funeral Homes, Inc., Defendants.
• Court: U.S. District Court — Western District of Michigan

75 F.Supp.2d 735

David A. RUTLIN, Plaintiff, v. PRIME SUCCESSION, INC., and Kerley & Starks Funeral Homes, Inc., Defendants.

No. 5:98-CV-117.

United States District Court, W.D. Michigan, Southern Division.

June 9, 1999.

Annette E. Skinner, Lansing, MI, for Plaintiff.

Neil P. Jansen, Mika Meyers Beckett & Jones, PLC, Grand Rapids, MI, Stephen B. Mead, Ross & Hardies, Chicago, IL, for Defendants.

OPINION OF THE COURT ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

McKEAGUE, District Judge.

I

Plaintiff David Rutlin brings this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. It is undisputed that plaintiff has been diagnosed as having epilepsy, a chronic neurological disorder.

Plaintiff was employed as a licensed funeral director by defendant Kerley & Starks, Inc. from September 1968 to October 1997. Kerley & Starks, later purchased by defendant Prime Succession, Inc., operates a funeral home in St. Joseph, Michigan. Plaintiff alleges defendants discriminated against him in the terms of his employment because of his epilepsy. Specifically, he alleges defendants retaliated against him after he requested accommodation of his epilepsy by subjecting him to "inconsistent scheduling, breaches of confidentiality, incorrect paychecks and decreased income." These adverse conditions resulted, he alleges, in his constructive discharge.

A person seeking relief under the ADA for employment-related discrimination must establish (1) that he is a disabled person within the meaning of the Act, (2) that he is qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) that he suffered an adverse employment decision because of his disability. McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir.1997). Defendants contend plaintiff has failed to adduce evidence sufficient even to make a prima facie showing that he was discriminated against because of his epilepsy. They contend there is no genuine issue of material fact and ask the Court to award them summary judgment as a matter of law.

II

Defendants' motion requires the Court to look beyond the pleadings and evaluate the facts to determine whether there is a genuine issue of material fact that warrants a trial. See generally Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact concerns "material" facts only if establishment thereof might affect the outcome of the lawsuit under governing substantive law. Id. A complete failure of proof concerning an essential element of plaintiff's claim necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Moreover, production of a "mere scintilla of evidence" in support of an essential element will not forestall summary judgment. Anderson, 477 U.S. at 251, 106 S.Ct. 2505. The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Ind. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III

"Disability" is defined under the ADA, in pertinent part, as "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12101(2). "Major life activities" means "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).

Plaintiff contends he is substantially limited in all major life activities when he is experiencing seizures. He concedes, however, that his seizures are generally controlled through medications. When the seizures are thus controlled, he enjoys an active life and is not limited in any major life activities. He reports having had seizures on only three occasions: December 1988, January 1997, and October 1998. Citing interpretive guidance of the Equal Employment Opportunity Commission, plaintiff argues "determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." 29 C.F.R. Pt. 1630, App. § 1630.2(j).

Without the benefit of medication, plaintiff's epilepsy condition would undisputedly be disabling. However, the Sixth Circuit has recently held the cited EEOC interpretive rule is not to be given effect because it is at odds with the ADA definition of disability. Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir.1997). Instead, the impact of mitigating measures must be considered in determining whether one is substantially limited in a major life activity.

The Gilday ruling is presently binding on this Court, even though some other circuits have reached a different conclusion, and even though this very question — concerning the impact of mitigating measures on the determination of disability — is currently pending before the Supreme Court. See Murphy v. United Parcel Service, 141 F.3d 1185 (10th Cir.1998), cert. granted, ___ U.S. ___, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999); Sutton v. United Air Lines Inc., 130 F.3d 893 (10th Cir.1997), cert. granted, ___ U.S. ___, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999). Plaintiff's suggestion that Gilday was implicitly overruled by the Supreme Court in Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998), is simply wrong. Accordingly, the initial question before the Court is whether plaintiff's epilepsy, as controlled by medication, substantially limits him in any major life activity.

Plaintiff argues that even though his seizure experiences have been few and far between, they demonstrate that his medications control the seizures only imperfectly and that the risk of seizures is ever present.

Epilepsy is not a disabling condition per se. Deas v. River West, L.P., 152 F.3d 471, 477-78 (5th Cir.1998). It is a condition whose severity varies. The Court must therefore evaluate the impact of plaintiff's epilepsy condition on his major life activities. Plaintiff's own deposition testimony shows that, in his case, apart from his very sporadic seizures, his epilepsy does not have a substantial impact on the way he lives his life. He enjoys a moderately active lifestyle, unimpeded by any physical ailment.

Although plaintiff may have epilepsy for his entire life, he is able to render the condition largely asymptomatic simply by taking two or three pills per day. The medications entail only very minor side effects. That the seizures may be disabling when they occur is, in light of their infrequency, insufficient, standing alone, to render plaintiff's epilepsy condition a disability with the meaning of the ADA. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871-72 (2nd Cir.1998) (plaintiff who suffered from colitis symptoms only sporadically and was asymptomatic for long periods not disabled).

The impact of plaintiff's condition is distinguishable from that experienced by the plaintiff in Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775 (6th Cir.1998). In Cehrs, the plaintiff suffered from psoriasis, a chronic incurable disease of the skin and joints. Although life-threatening during "flare-ups," Cehrs's psoriasis did not directly interfere with her ability to work as a nurse during dormant periods, when her symptoms were controlled by weekly medical treatments. Id. at 777. Yet, even during these dormant periods, Cehrs experienced pain and irritating skin lesions, and her medication sometimes caused loss of hair and fingernails. Id. at 781. Her entire appearance, including the clothes she wore, was dictated by her psoriasis and she was constantly afraid of others' reaction to her condition. Id. The court found there was a genuine issue of material fact as to whether Cehrs's psoriasis substantially limited her in the major life activity of work.

Here, in contrast, plaintiff has presented no evidence that he experiences any symptoms that affect his work or any other major life activity during the dormant stages of his condition. Plaintiff's physicians have restricted his work week to no more than 40 hours per week — to minimize stress and fatigue, which may precipitate seizures. However, such a 40 hour per week limitation is insufficient, without more, to establish that plaintiff is substantially limited in the major life activity of working. Tardie v. Rehabilitation Hospital of Rhode Island, 168 F.3d 538, 541 (1st Cir.1999); Muthler v. Ann Arbor Machine, Inc., 18 F.Supp.2d 722, 728 (E.D.Mich.1998).

Based on the present record, a reasonable jury could hardly find plaintiff is substantially limited by his epilepsy, as controlled by medication, in any major life activity. Plaintiff has thus failed to bear his burden of demonstrating he has a disability. Because plaintiff has failed to adduce evidence sufficient to create a genuine issue of material fact on this essential element of his claim, defendants are entitled to summary judgment.

IV

Moreover, even if it were appropriate to evaluate the impact of plaintiff's condition without regard for mitigating measures and assuming he might reasonably be deemed to have a disability, his claim would still not avoid summary judgment because he has also failed to satisfy the second and third elements of his prima facie case.

With respect to the second element, plaintiff does appear to have been otherwise qualified to perform the essential functions of his funeral director position with Kerley & Starks. After all, he did satisfactorily perform these functions for almost thirty years. Plaintiff contends his epilepsy condition impeded his ability to perform the customary evening duties, but...