Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., No. 96-3018

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Before TACHA, BALDOCK, and BRISCOE; TACHA; BRISCOE
• Citation: 138 F.3d 1304
• Decision Date: 13 March 1998
• Docket Number: No. 96-3018
• Parties: 72 Empl. Prac. Dec. P 45,248, 98 A.D. Cases 1560, 12 NDLR P 53, 98 CJ C.A.R. 1452 Robert W. SMITH, Plaintiff--Appellant, v. MIDLAND BRAKE, INC., A DIVISION OF ECHLIN, INC., Defendant--Appellee, Equal Employment Advisory Council, Amicus Curiae.

Page 1304

138 F.3d 1304 72 Empl. Prac. Dec. P 45,248, 98 A.D. Cases
1560, 12 NDLR P 53,
98 CJ C.A.R. 1452 Robert W. SMITH, Plaintiff--Appellant,
v.
MIDLAND BRAKE, INC., A DIVISION OF ECHLIN, INC., Defendant--Appellee,
Equal Employment Advisory Council, Amicus Curiae. No. 96-3018. United States Court of Appeals,
Tenth Circuit. March 13, 1998.

Les E. Diehl, of Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Plaintiff-Appellant.

James Allan Smith, Daniel M. Shea, and Craig P. Siegenthaler, of Smith, Currie & Hancock, Atlanta, GA, and Mary Kathleen Babcock, of Foulston & Siefken Law Offices, Wichita, KS, for Defendant-Appellee.

Douglas S. McDowell, Ann Elizabeth Reesman, and Ellen Duffy McKay, of McGuiness & Williams, Washington, DC, filed an amicus curiae brief for the Equal Employment Advisory Council.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

TACHA, Circuit Judge.

Plaintiff Robert Smith alleges that his former employer, defendant Midland Brake, Inc., terminated his employment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and Kansas state law on retaliatory discharge. The district court entered summary judgment for the defendant on all claims. Plaintiff appeals the order of summary judgment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

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BACKGROUND

Between 1986 and 1993, plaintiff Robert Smith was employed by the defendant, Midland Brake, Inc., in a light assembler position. During this time, plaintiff experienced problems with chronic dermatitis on his hands as well as some muscular injuries. As a result, his physicians placed restrictions on his work activities and on several occasions ordered him to stop working for limited periods. The defendant attempted to accommodate plaintiff's limitations by assigning him to duties within the light assembly department that involved less lifting and less exposure to irritants and by providing him compensation claim for the dermatitis on May 8, 1992. From May 6, 1992, until the time of his termination, plaintiff was on a leave of absence and was receiving workers' compensation benefits. On March 3, 1993, defendant agreed to pay plaintiff $20,000 to settle his workers' compensation claim for the dermatitis. On or about the same date, defendant terminated the plaintiff's employment with Midland Brake, citing an inability to accommodate his skin sensitivity.

The parties dispute exactly what happened between May 1992 and March 1993. Mr. Smith alleges that Midland Brake had a policy of giving employees who became disabled and could not perform their current positions priority over other employees for reassignment to open positions. He contends that there were numerous job openings at Midland Brake that should have been made available to him and asserts that defendant either could have obtained or did obtain releases from his physician for him to work in those positions. Midland Brake, on the other hand, contends that it made efforts to return plaintiff to work in different positions at the company but was unable to obtain a written release from plaintiff's physician allowing him to return to work.

On September 7, 1994, plaintiff filed a complaint in the United States District Court for the District of Kansas. In his complaint, plaintiff asserted that he was discharged in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. ¹ In addition, plaintiff asserts that, in violation of Kansas law and public policy, he was discharged in retaliation for pursuing his workers' compensation claim. The district court entered summary judgment for the defendant on each of these claims. We hold that plaintiff has failed to establish a prima facie case under either the ADA or the ADEA, and affirm on each of those claims as discussed below. We also affirm the entry of summary judgment on the retaliatory discharge claim.

DISCUSSION

We review a district court's grant of summary judgment de novo. See Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). Summary judgment is appropriate if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See id.; Fed.R.Civ.P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). " 'Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,' summary judgment in favor of the moving party is proper." Thomas v. IBM, 48 F.3d 478, 484 (10th Cir.1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

1. ADA Claim

The ADA prohibits employers from discriminating against qualified individuals with disabilities, because of the disabilities, in regard to hiring, advancement, discharge, or other terms, conditions, or privileges of employment. See 42 U.S.C. § 12112(a). To prevail on a claim of discriminatory discharge under the ADA, a plaintiff must establish (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, i.e.,

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with or without reasonable accommodation, he is still able to perform the essential functions of his job; and (3) that his employer fired him because of his disability. See White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). A person is considered disabled within the meaning of the ADA if he has "a physical or mental impairment that substantially limits one or more of [his] major life activities." 42 U.S.C. § 12102(2)(A). For the purposes of this appeal, we will assume that Mr. Smith is disabled within the meaning of the ADA. Nonetheless, we find that he is unable to set out a prima facie case under the ADA because he is unable, even with reasonable accommodation, to perform the essential functions of his job.

To be protected under the ADA, a plaintiff must demonstrate that he is a "qualified individual with a disability." 42 U.S.C. §§ 12111(8), 12112(a). This inquiry is twofold:

First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if ... we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions.

White, 45 F.3d at 361-62 (citations omitted); see also 42 U.S.C. § 12111(8) (defining "qualified individual with a disability"). Mr. Smith does not allege that he can perform the essential functions of his job in the light assembly department. In fact, he admits that because of his chronic dermatitis, his physicians considered him "permanently disabled" and unfit to work in that department. See Pl.'s First Am. Compl., Appellant's App. Vol. I, Ex. A, at p 16. Furthermore, Mr. Smith has not alleged that there are any reasonable accommodations that would enable him to perform the essential functions of his job. Thus, it is undisputed that Mr. Smith is not a "qualified individual with a disability" as that term is used in the ADA. There is no genuine issue as to this material fact.

Mr. Smith does not contest that he is no longer qualified for his old job, and he does not seek reinstatement to that position. Instead, he argues that the defendant is required, as a reasonable accommodation to his skin condition, to reassign him to another position at the company, outside of the light assembly department. We disagree.

Under the ADA and the corresponding guidelines promulgated by the Equal Employment Opportunity Commission (EEOC) ², a reasonable accommodation may include reassignment to a vacant position. See 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). ³ The guidelines state that, "In general, reassignment should be considered only when accommodation within the individual's current position would pose an undue hardship [to the employer]." 29 C.F.R. Pt. 1630, App. § 1630.2(o); see also id. at Pt. 1630, App. § 1630.2(p) (defining undue hardship as "significant difficulty or expense in, or resulting from, the provision of the accommodation"). In other words, reassignment can be used as a means of accommodating a disabled employee when accommodating him in his current position is possible, but difficult for his employer. It follows that when it is not at all possible to accommodate an employee in his current position, there is no obligation to reassign. ⁴

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Here, it is undisputed that after the plaintiff's doctor ordered him to stop working in May 1992, no amount of accommodation would have made him qualified for his job in the light assembly department. Thus, Midland Brake is not obligated under the ADA to transfer plaintiff to another position. ⁵

In arguing that his employer should have accommodated him by reassigning him to a new position, plaintiff misconstrues the nature and purpose of the ADA. The Act is designed to combat discrimination against qualified disabled employees. See 42 U.S.C. § 12101 (congressional findings and purpose of the ADA); id. at § 12112 (general rule prohibiting discrimination against qualified individuals with disabilities). The Act does not require employers to accommodate every employee who becomes disabled, but rather, only those who are still capable, with reasonable accommodation if necessary, of performing the essential functions of their jobs in spite of their disabilities--i.e., qualified individuals with disabilities. The ADA...