Smith v. Quikrete Companies, Inc.

• Decision Date: 21 May 2002
• Docket Number: CIVIL ACTION NO. 3:00CV-108-H.
• Citation: 204 F.Supp.2d 1003
• Parties: Edward L. SMITH, Plaintiff, v. The QUIKRETE COMPANIES, INC., Defendant.
• Court: U.S. District Court — Western District of Kentucky

204 F.Supp.2d 1003

Edward L. SMITH, Plaintiff, v. The QUIKRETE COMPANIES, INC., Defendant.

CIVIL ACTION NO. 3:00CV-108-H.

United States District Court, W.D. Kentucky, At Louisville.

May 21, 2002.

Bixler W. Howland, Michael Anthony Augustus, Louisville, KY, for Edward L. Smith.

Michael K. Kirk, Gordon A. Rowe, Jr., Clarence A. Wilbon, Wyatt, Tarrant & Combs, Louisville, KY, for The Quikrete Companies, Inc.

MEMORANDUM OPINION

HEYBURN, Chief Judge.

Defendant, The Quikrete Companies, Inc. ("Quikrete"), has moved for summary judgment on Plaintiff's claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. This case raises many of the issues which make the ADA so difficult to decipher for lawyers, judges and employers. The Court faces several delicate procedural issues as well as considerations which go to the heart of the ADA's purposes and scope. After resolving several of those issues, the Court finds numerous disputed material issues to require jury consideration.

I.

Quikrete, a business engaged in the manufacture and distribution of concrete mixes, purchased Smith's employer, B.J. Distributors, in 1994. B.J. Distributors had employed Smith for about two years as a driver, whose job was to haul and deliver bags of cement to customers. Soon after Quikrete bought out B.J. Distributors, it promoted Smith to a supervisory position, in which he scheduled trucks and hired and trained drivers. By all accounts Smith was an able and well-regarded employee.

On June 30, 1998, Smith experienced severe chest pains, and soon was admitted to a hospital. A cardiologist, Dr. Wayne Shugoll, diagnosed severe, inoperable arterial blockage around Smith's heart. Shugoll prescribed medication, instructed Smith not to lift objects heavier than twenty-five pounds, and advised him to stop smoking, lose weight, and avoid physically strenuous activity. Smith returned to work later that summer. In March 1999, he again checked into a hospital with chest pains, but was discharged after four days and returned to work.

Upon Smith's return, his supervisor, Lee Andrews, informed him that Quikrete needed him to give up his supervisory position and revert to driving a delivery truck. Smith did so, with no drop in pay or benefits. Almost immediately after starting, Smith was written up twice in four days for presenting a poor attitude, once upon a customer's complaint, then upon the complaint of a co-worker. These were the first times Quikrete had ever admonished him.

On April 7, 1999, Andrews issued a memo to all drivers which stated that all truckloads must be tarped down. This announcement was consistent with company policy as stated in the employee handbook, but the policy previously had been enforced only in inclement weather. Generally, Quikrete had stretch- or shrink-wrapped loads instead. The tarps weighed between 75-100 pounds, a weight well in excess of Smith's lifting restrictions. Smith approached Andrews and told him that he could not lift the tarps, but that he could roll and affix them if the forklift used to load the cement bags were used to hoist the tarps onto his truck. Andrews refused this accommodation, and responded that the policy left Smith "without a job." Andrews proposed that Smith instead split his work time between supervisory office duties and driving a tanker truck. Smith stated that he would be unable to operate the truck because fueling it required physical exertion beyond his limited capability. Quikrete terminated Smith on April 12.

Since termination by Quikrete, Smith and his wife have made a living running their own business, B & E Trucking Company, Inc., which transports lumber. As president of the company, Smith functions primarily in a supervisory capacity, but occasionally as a driver. A forklift is used for all loading of the trucks.

While applying these allegations and other evidence to the pending motions, the Court views the facts in the light most favorable to the nonmovant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II.

The ADA prohibits covered entities from discriminating against any "qualified individual with a disability" in terms of employment. 42 U.S.C. § 12112(a). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The ADA defines "disability" as follows:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). To state a discrimination claim under the ADA, a plaintiff must establish that: "1) he is an individual with a disability; 2) he is `otherwise qualified' to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap." Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996) (citation omitted).

In his complaint, Smith alleged that his heart condition substantially limits him in the major life activity of lifting; that, nevertheless, he is qualified to perform the requirements of his job; and that Quikrete fired him solely because of his disability. In his response to Quikrete's motion for summary judgment, Smith augmented his claim by arguing that his heart condition substantially limits him in the major life activity of working, and, alternatively, that Quikrete terminated him because it mistakenly regarded him as substantially limited in working. Defendants object to Plaintiff's modification of his legal theory in his response to its motion for summary judgment, arguing that the requirements of notice pleading do not permit "trial by ambush."

Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint include "a short and plain statement of the claim," a rule which exists to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Here, while Plaintiff alleged only one substantially affected life activity in his complaint, he stated that he is a qualified individual with a disability within the meaning of 42 U.S.C. § 12102(2). This subsection encompasses claims that a plaintiff has a substantially limiting impairment, has a record of such an impairment, or is regarded as having such an impairment. Thus, Plaintiff's pleading was broad enough to put Defendant on fair notice.

Further, Plaintiff's discovery responses put Defendant on notice that Plaintiff would not confine his legal theory to a claim that he is substantially limited in lifting. As the Supreme Court remarked in Conley, simple notice pleading works in conjunction with "the liberal opportunity for discovery and the other pretrial procedures established by the [Federal] Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues." Id. at 47-48, 78 S.Ct. 99 (citation omitted). See also Equal Employment Opportunity Comm'n v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir.2001) (holding that, in the ADA context, "so long as the complaint notifies the defendant of the claimed impairment, the substantially limited major life activity need not be specifically identified in the pleading.")

The Court concludes, therefore, that it is fair in these circumstances to evaluate all of Plaintiff's evidence and accompanying legal theories.

III.

Defendant also has moved to exclude all testimony from Robert Teill, a vocational expert whose opinions are key to Plaintiff's claim that his heart condition substantially limits him in working. Plaintiff disclosed Teill as an expert witness in February 2001, advising Defendant of Teill's address, profession, and curriculum vitae, and the intended subject matter of Teill's testimony: namely, "the plaintiff's inability to perform the essential functions of the job from which the plaintiff was excluded at Quikrete" and "the impact on Mr. Smith's employability of his lifting restrictions." In November 2001, before his scheduled deposition, Defendant requested a copy of Teill's expert report. Plaintiff's counsel responded that he would forward a copy of the report as soon as he received it from Teill. Plaintiff's counsel did not receive the report from Teill — who claims to have been seriously ill in late 2001 and early 2002—until February 12, 2002, and submitted it to Defendant on February 18. The Court's ordered period of discovery ended on December 29, 2001.

The Sixth Circuit considers four factors when reviewing such a sanction under Rule 37. "The first factor is whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; the second factor is whether the adversary was prejudiced by the party's failure to cooperate in discovery; the third factor is whether the party was warned that failure to cooperate could lead to the sanction; and the fourth factor in regard to a dismissal is whether less drastic sanctions were first imposed or considered." Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir.1997) (citations omitted). Defendant's chief argument appears to be that Plaintiff's failure to meet the discovery deadline has inconvenienced its preparation for trial, set to commence on June 17, 2002.

The Court finds that exclusion of Teill's testimony would be an unduly harsh sanction. It does not appear from the record that Plaintiff is to blame for Teill's delay in processing and submitting his report; nor does it appear that the content of Teill's report took Defendant completely by surprise, given that Teill's report addresses precisely the subject matter stated in Plaintiff's Rule 26 disclosure....