Settle v. S.W. Rodgers, Co., Inc.

• Decision Date: 24 March 1998
• Docket Number: Civil Action No. 98-125-A.
• Citation: 998 F.Supp. 657
• Parties: Larry SETTLE, Plaintiff, v. S.W. RODGERS, CO., INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

998 F.Supp. 657

Larry SETTLE, Plaintiff, v. S.W. RODGERS, CO., INC., Defendant.

Civil Action No. 98-125-A.

United States District Court, E.D. Virginia, Alexandria Division.

March 24, 1998.

COPYRIGHT MATERIAL OMITTED

Michele S. Bellizaire, Manassas, VA, for Plaintiff.

Joseph H. Kasimer, Lesa L. Byrum, Kasimer & Ittig, P.C., Falls Church, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Plaintiff's three-count complaint alleging discrimination and retaliation under the Americans with Disabilities Act ("ADA") of 1990, 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act ("FMLA") of 1993, 29 U.S.C. § 2601 et seq., comes before the Court on defendant's motion to dismiss. Specifically at issue are the following questions:

(1) whether plaintiff has adequately alleged a "disability" under the ADA;

(2) whether plaintiffs claims under the FMLA are timely;

(3) whether plaintiff's claims of retaliatory discharge under the ADA and the FMLA are precluded by the finding of the Virginia Workers Compensation Commission that plaintiff was discharged due to excessive personal telephone calls; and (4) whether plaintiff may claim punitive damages and mental distress damages under the FMLA.

I.¹

Plaintiff is a diesel mechanic. He began working for defendant, a Virginia corporation, in 1986. His job rebuilding diesel engines required long hours and often involved strenuous lifting. In general, plaintiff was required to work eleven-hour days, Monday through Friday and occasionally on Saturday, as well.

On June 20, 1994, plaintiff severely twisted his shoulder in a work-related accident. His attempts to resume his work were accompanied by extreme pain and discomfort. So, within a few days of the incident, plaintiff consulted Dr. Bartley Howick, an orthopedic surgeon who diagnosed the injury as a rotator cuff tear and placed plaintiff on a homebased physical therapy program. Dr. Howick also limited plaintiff to light duty, with specific instructions to avoid lifting or pulling more than five pounds of weight. A copy of these instructions and a copy of the doctor's diagnosis were sent to defendant.

Despite Dr. Howick's instructions, defendant expected plaintiff to resume his normal work schedule. Indeed, plaintiff's duties after the accident remained unchanged; he was required to lift engines weighing 50 to 60 pounds; he was required to pull a torque wrench applying 300 to 350 pounds of torque; and he was expected to continue to work at his pre-injury pace. In short, defendant's demands placed a level of stress on plaintiff's shoulder far beyond that prescribed by Dr. Howick.

By January 1995, plaintiff was continuing to experience severe pain, weakness, stiffness, and limited motion in his right shoulder, all of which impaired his ability to perform his work duties, as well as non-work activities. After returning to Dr. Howick for a second evaluation, plaintiff underwent arthroscopic surgery on his shoulder on February 21, 1995. Following surgery, Dr. Howick placed plaintiff on a light activity regime that prevented his return to work for a period of six weeks. Plaintiff complied with this regime and did not return to work until March 20, 1995. And when he did return to work, he did so subject to Dr. Howick's orders limiting him to light duty, once again including a specific prohibition against lifting more than five pounds. Dr. Howick also prescribed that plaintiff attend three one-hour physical therapy sessions per week.

As had occurred previously, plaintiff found on his return to work on March 20, 1998, that defendant's requirements precluded compliance with Dr. Howick's light-work order. Although a young apprentice, T.W. Nylon, was assigned to work with plaintiff, this arrangement required plaintiff to train Nylon, often forcing him to perform tasks beyond the scope of his doctor's orders. Further, Nylon worked only eight-hour shifts, leaving plaintiff to work alone for approximately three hours each day. Despite his limitation, plaintiff was constantly pressured to perform at or above the level he maintained prior to his injury, and he was regularly berated for working too slowly. On occasion, plaintiff was chastised for taking time off to attend his physical therapy sessions. On May 12, 1995, at the end of the day, plaintiff was fired from his job without explanation.

Following his discharge, plaintiff filed a Workers Compensation claim for disability benefits arising out of the injury to his shoulder.² At issue before the Workers Compensation Commission ("Commission") was whether plaintiff was terminated for just cause, and hence, not entitled to disability benefits. By opinion dated June 28, 1996, the Commission found that plaintiff had been discharged on the basis of "the excessive personal telephone calls he received," but that the termination was not "justified" since plaintiff had, at best, only limited control over the incoming phone calls.³ Nevertheless, plaintiff was denied disability benefits for the period May 10 through November 19, 1995, because he had obtained a comparable position for this period with the Prince William Construction Company. This, in the Commission's opinion, precluded his receipt of benefits. Plaintiff did not appeal the Commission's decision. On November 20, 1995, a second operation on plaintiff's shoulder was required.

Plaintiff filed this three-count complaint on January 28, 1998, following a timely filed charge of discrimination with the EEOC and the Prince William County Human Rights Commission, and the receipt of a right to sue letter. Plaintiff's complaint alleges;

(1) unlawful discrimination on the basis of a disability in violation of the ADA;

(2) willful interference with plaintiff's statutory rights under the FMLA; and

(3) unlawful retaliation under both the ADA and the FMLA.

Further, plaintiffs complaint prays for compensatory and punitive damages to redress the alleged deprivation of his rights.

II.

The standard to be applied in deciding a motion to dismiss is well established. Dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is only appropriate where, construing the allegations in the light most favorable to the plaintiff and assuming the facts alleged to be true, it is clear as a matter of law that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Hishon, 467 U.S. at 73; Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989). Yet, so long as the plaintiff colorably states facts which, if proven, would entitle him to relief, a motion to dismiss should not be granted. Adams v. Bain, 697 F.2d 1213, 1216 (4th Cir.1982).

III.

The ADA makes it unlawful to "discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination under the ADA, plaintiff must prove that he (i) has a disability, (ii) is otherwise qualified for the job, and (iii) has experienced some adverse employment action as a result of his disability. See Halperin v. Abacus Technology Corp., 128 F.3d 191, 197 (4th Cir.1997). The threshold issue, then, is whether plaintiff has alleged a "disability" cognizable under the ADA, which the Act defines in part as any "physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A).⁴ The major life activities covered by the ADA include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting and reaching. See Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 349 (4th Cir.1996) (citing 29 C.F.R. § 1630.2(i); 29 C.F.R. Pt. 1630, App. § 1630.2(i)). Further, an impairment is one that is substantially limiting when it "significantly restrict[s] an individual's ability to perform a major life activity." Halperin, 128 F.3d at 199. In determining whether an impairment is substantially limiting, courts may consider the "nature and severity of the impairment, its duration or expected duration, and any permanent or long term impact." Id.

In support of its motion to dismiss, defendant suggests that, as a matter of law, plaintiff's shoulder injury cannot constitute a "disability" under the ADA. Specifically, defendant contends that a torn rotator cuff, while potentially limiting plaintiff's use of his arm, and his ability to perform certain duties, is not, as a matter of law, an impairment that "substantially limits" a major life activity. This contention is unpersuasive. Not all rotator cuff injuries are alike in their severity, extent, or effect. Some rotator cuff injuries may be so severe as to limit a person's major life activities in some respect, while others may not. Thus, ADA coverage is not foreclosed merely because the complaint identifies the disability as a rotator cuff injury. As courts have consistently and sensibly noted, the ADA's individualized focus requires a case-by-case determination of whether a particular plaintiff's particular impairment is disabling. See Ennis v. National Ass'n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir.1995) (finding of disability must be made on individual basis); See also Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.1986) (in the context of the Rehabilitation Act, the question of who is handicapped is best suited to a case-by-case determination). In sum, a claim for ADA relief is not fatally insufficient merely because the impairment is alleged to be a rotator cuff shoulder injury.⁵

Yet, the analysis of the complaint's sufficiency does not end here. While the allegation of a rotator cuff injury does not foreclose ADA coverage, the complaint must allege that plaintiff's impairment is disabling, i.e., that it substantially limits a major life activity. See, e.g., Homeyer v. Stanley Tulchin...