Wilkes v. City of Fort Wayne
| Decision Date | 26 August 2011 |
| Docket Number | CAUSE NO. 1:10-CV-169 |
| Parties | BILLY WILKES, SR., Plaintiff, v. CITY OF FORT WAYNE, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Plaintiff Billy Wilkes alleges that the City of Fort Wayne (the "City"), his former employer, violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq., when it terminated him from his job as a heavy equipment operator without engaging in the interactive process and affording him a reasonable accommodation.1 (First Am. Compl. ¶¶ 1, 7, 9.) Alternatively, Wilkes asserts that his termination was in retaliation for filing a worker's compensation claim and thus violated Indiana common law. (First Am. Compl. ¶ 10.)
The City now moves for summary judgment on all claims (Docket # 25), and the motion has been fully briefed, along with a sur-response, which the Court has considered. (Docket # 26-28, 35-37, 40-41, 43, 45.) For the reasons provided, the City's motion for summary judgmentwill be GRANTED.
Wilkes began working for the City in 1994 on or about the age of nineteen as a full-time laborer in the City's street department. (Wilkes Aff. ¶ 2; Baumgartner Aff. ¶ 5; Def.'s App. Ex. H.) The street department employs several different classifications of employees, including laborers, truck drivers, and various classes of equipment operators.3 (Baumgartner Aff. ¶ 4.) In 1996, Wilkes obtained an Indiana commercial driver's license ("CDL") and shortly thereafter became a truck driver for the street department. (Baumgartner Aff. ¶ 5.)
On September 24, 1999, Wilkes accepted the position of "Operator B" in the street department. (Baumgartner Aff. ¶ 6; Wilkes Dep. 35.) An Operator B operates heavy equipment (including a loader and tractor with attachments, blade truck, vibratory roller, and backhoe) used in the daily maintenance and repair of the city streets and alley ways. An Operator B must, among other things, hold a CDL and perform duties which require bending, twisting, climbing, and lifting up to fifty pounds on a regular basis; and pushing, pulling, and reaching for sustained periods of time. Although Wilkes performed a variety of duties as an Operator B, including working on the backhoe and loader crews, his primary duty was driving a dump truck that pulled a flatbedtrailer.4 (Wilkes Dep. 35, 36; Wilkes Aff. ¶ 10.)
From 1991 until 2004, Wilkes served in the United States Army Reserves. (Wilkes Dep. 10, 16.) While at a military drill in 1999, Wilkes suffered an injury to his neck when the collapsible ceiling of a mobile office fell on his head. (Wilkes Dep. 8, 10-15.) Wilkes received immediate medical treatment for the injury but did not receive any further treatment when he returned home. (Wilkes Dep. 14-15.) Although he continued to experience some discomfort in the form of a "stiff neck" after the accident, it did not interfere with his daily routine, and he was not assigned any medical restrictions as a result of the event. (Wilkes Dep. 15, 20.)
On or around February 2003, Wilkes was called to active duty, and he went on military leave from the City until April 2004. (Baumgartner Aff. ¶ 9.) While on active duty, Wilkes began experiencing more severe neck pain from wearing a Kevlar helmet and other military equipment; upon examination, an MRI indicated that he had a herniated disk in his C4-5 region. (Wilkes Dep. 14-20, 28.) As a result, the Army medically discharged him on April 17, 2004. (Wilkes Dep. 16, 28-29.)
Soon thereafter, Wilkes returned to his job as an Operator B with the City. (Wilkes Dep. 21; Baumgartner Aff. ¶ 10.) Although he continued to experience some residual neck pain, it diminished somewhat after he left the Army and did not interfere with his ability to perform his Operator B duties. (Wilkes Dep. 22-24.) Wilkes did request, however, and was granted,intermittent leave under the Family and Medical Leave Act ("FMLA") in 2004 and 2005 because of "chronic neck pain" and because his physician told him not to operate heavy equipment or drive under his CDL when taking prescription pain medications. (Wilkes Dep. 20-24, 29; Baumgartner Aff. ¶ 12; Townsend Aff. ¶ 6.)
In November 2005, Wilkes sustained a workplace injury to his left shoulder when the front loader he was operating struck a manhole cover. (Wilkes Dep. 61, 68-69.) He took an immediate leave of absence, and the City provided him worker's compensation benefits, including medical treatment for the injury. (Wilkes Dep. 68-69; Baumgartner Aff. ¶ 13; McAfee Aff. ¶ 8.) On February 22, 2006, Dr. Jerald Cooper at Fort Wayne Orthopaedics performed arthroscopic surgery and debridement on Wilkes's left shoulder, and Wilkes underwent physical therapy following the surgery. (Def.'s App. Ex. H.)
Dr. Cooper subsequently referred Wilkes to Dr. Thomas Lazoff at Physical Medicine Consultants for "oversight and recommendations", and on May 22, 2006, Dr. Lazoff restricted Wilkes from lifting more than ten pounds with the left upper extremity. (Def.'s App. Exs. H, I.) On June 6, 2006, Dr. Lazoff issued Wilkes the following permanent restrictions:
+------------------------------------------------------+
¦ ¦Occasional ¦Frequent ¦
+------------------------------+------------+----------¦
¦Lifting from floor to waist ¦100 lbs. ¦70 lbs. ¦
+------------------------------+------------+----------¦
¦Lifting from waist to shoulder¦70 lbs. ¦40 lbs. ¦
+------------------------------+------------+----------¦
¦Lifting from shoulder overhead¦50 lbs. ¦25 lbs. ¦
+------------------------------+------------+----------¦
¦Carrying ¦90 lbs. ¦60 lbs. ¦
+------------------------------+------------+----------¦
¦Pushing/pulling ¦220 lbs. ¦150 lbs. ¦
+------------------------------------------------------+
No limitations on standing, sitting, or walking. He could frequently stoop, bend, squat, balance, and climb, and occasionally crawl secondary to the shoulder discomfort.(Def.'s App. Ex. I.) Dr. Lazoff concluded that even with these restrictions Wilkes still met the minimum criteria for his Operator B job duties, and therefore Wilkes returned to his job on June 8, 2006. (Def.'s App. Ex. I; Baumgartner Aff. ¶ 14; McAfee Aff. ¶ 11.) On July 14, 2006, Dr. Lazoff opined that Wilkes was at maximum medical improvement ("MMI") concerning his left shoulder, maintained the same permanent restrictions, and gave him an impairment rating of twelve percent of the left upper extremity. (Def.'s App. Ex. I.)
In 2007, Wilkes again applied for intermittent FMLA leave due to his chronic neck pain. (Baumgartner Aff. ¶ 16; McAfee Aff. ¶ 12.) In May 2007, after receiving his request, the City sent Wilkes to Dr. Mark Reecer for an independent medical examination, asking Dr. Reecer to evaluate Wilkes's ability to perform the duties on his Operator B job description and whether it would be safe for him to continue working without restrictions in that position. (McAfee Aff. ¶ 13, Ex. A.) Based on a negative MRI and essentially unremarkable clinical findings, Dr. Reecer had "no issues" with Wilkes continuing his regular job duties and found "no indication for permanent restrictions." (McAfee Aff. Ex. B.) Dr. Reecer did, however, agree with the intermittent leave request for managing Wilkes's chronic neck pain. (McAfee Aff. Ex. B.) Accordingly, the City re-certified Wilkes for intermittent FMLA leave, and Wilkes continued to take intermittent leave through the beginning of 2008 for his chronic neck pain. (Townsend Aff. ¶ 8.) Nevertheless, when Wilkes underwent his medical exam for the CDL fitness determination in October 2007, he certified that his report of health history, which represented that he had no spinal injury or disease and no restrictions or limitations, was complete and true. (McAfee Aff. ¶49.)
On February 1, 2008, Wilkes fell off of the hood of his truck while at work and injured his right shoulder. (Wilkes Dep. 47-48; Baumgartner Aff. ¶ 17.) He continued to work his shift that day and did not immediately seek medical attention. (Wilkes Dep. 49.) However, about one week later, Wilkes saw Dr. Larry Rowe at Business Health Solutions ("BHS") for the shoulder injury. (McAfee Aff. ¶ 17.) An x-ray revealed a "normal shoulder", and BHS released Wilkes without restrictions. (Wilkes Dep. 49, 58-60; McAfee Aff. ¶ 18.) From February 14 to March 4, 2008, Wilkes received treatment for his right shoulder, including physical therapy and cortisone injections. (McAfee Aff. ¶ 18.) On March 4, 2008, BHS referred Wilkes to Dr. Cooper, who diagnosed him with right shoulder impingement. (Wilkes Dep. 49-50.) Wilkes continued, however, to perform his normal Operator B job duties. (Baumgartner Aff. ¶ 17.)
On March 25, 2008, Wilkes was injured at work when the tractor that he was driving struck a piece of concrete. (Wilkes Dep. 63-64, Ex. E.) He immediately experienced pain in both shoulders and his back. (Wilkes Dep. 63-64, Ex. E.) Wilkes was diagnosed at BHS with cervical, thoracic, and lumbar strain and bilateral shoulder strain. (McAfee Aff. ¶ 19.) BHS restricted him from commercial driving and all bending, squatting, kneeling, climbing, reaching, pushing or pulling, and from work around moving machinery. (Wilkes Dep. 74; Def.'s App. Ex. J.) The...
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