STONE v. CITY OF INDIANAPOLIS, (S.D.Ind. 2000)

LARRY J. McKINNEY, Judge.

This matter comes before the Court on the motion of defendants, City of Indianapolis Public Utilities Division and Citizens Gas Coke Utilities ("Citizens Gas"), seeking judgment in their favor as a matter of law on all of the claims presented in the complaint filed by Alfred Stone on April 26, 1999. Stone brought this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Stone alleges that he suffered discrimination when Citizens Gas failed to provide him with reasonable accommodations for his work-related back injury, when he was terminated because of his disability and when a Citizens Gas employee made a discriminatory statement to the Indiana Workforce Development Board in connection with Stone's request for unemployment compensation. Compl. ¶¶ 42, 46, 51. He also contends that he was discriminated against when he was fired in retaliation for filing a series of charges with the Equal Employment Opportunity Commission ("EEOC"). Compl. ¶ 48. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS the defendants' motion for summary judgment.

Stone, an African-American male began working for Citizens Gas in September of 1996 as a service mechanic in the company's Service and Rental Center ("SRC"). Stone Dep. at 77. As a SRC employee, the terms and conditions of Stone's employment were governed by a collective bargaining agreement between Citizens Gas and the International Brotherhood of Electrical Workers, Local 1400. Id. at 237-38. Under the terms of the agreement, employees were deemed probationary for the first twelve months of their employment and could be discharged with or without cause during that period of probation. Id. at 242-44.

On November 18, 1996, Stone injured his back when he and three other employees were moving a commercial water heater. Id. at 104. That evening, Stone felt pain in his back and took Ibuprofen to relieve the discomfort. Id. at 106. Although Stone was required under the terms of his employment to report any injuries sustained at work to either the company nurse or his supervisor, Stone did not report his injury to SRC until November 22, 1996, four days after he had sustained such injury. Id. at 105-06. Instead, he went to the emergency room of the VA Medical Center where he was diagnosed with an inflamed hemorrhoid and instructed to stay off work for one week so he could avoid doing much lifting or moving. Id. at 108; Def.'s Ex. 13. After Stone reported the injury to SRC, SRC sent him to the Department of Occupational Health at St. Vincent Hospital for evaluation. Stone Dep. at 107. There, Dr. Brian Timura diagnosed Stone with a thrombosed external hemorrhoid and instructed him to rest. Id. at 109. Stone was then off of work until November 29th, pursuant to the VA Center's recommendation. Def.'s Ex. 12.

In May of 1997, David Martin ("Martin"), acting supervisor for the service mechanics, spoke with Stone concerning an incident in which Stone and another coworker charged a customer a one-person labor rate to replace a residential water heater when the customer had been told that he would be charged a two-person labor rate. Stone Dep. at 813-15. Martin also inquired why Stone took one hour to drive to the customer's house but took one hour and forty-five minutes to return to SRC. Id. During the meeting, Martin counseled Stone that SRC could not allow its employees to operate in this manner. Def.'s Ex. 38.

In July of 1997, Stone was authorized to replace the shut-off valve from a gas stove at a customer's residence. Stone Dep. at 838-39. At the time Stone left the site, a strong odor of gas was present, however, Stone told the customer that the odor would eventually go away. Def.'s Ex. 43. Later that day, the customer contacted SRC to complain that the odor was still there. Id. When SRC sent another mechanic to the home, it discovered that Stone had failed to properly remove the old shut-off valve in order to prevent a gas leak. Id. Martin counseled Stone about his carelessness. Id. Stone admitted that he made a mistake. Id. Later that month, Martin also counseled Stone for jumping the flow switch on a boiler unit and leaving it without repairing or replacing the switch. Stone Dep. at 840-41. At some point, Martin spoke with Steve Sark, president of SRC, and Tom Derrow, interim manager of SRC, concerning Stone's performance deficiencies. Martin Aff. ¶ 6.

On July 24, 1997, Victoria Barlow ("Barlow"), an occupational health nurse for SRC, informed Martin that Stone had reported another back injury to her which he incurred while installing a heat exchange. Barlow Aff. ¶ 5. Barlow provided Stone with anti-inflammatory medication and two ice packs and asked him if he needed to visit St. Vincent Hospital, SRC's medical provider. Id. ¶ 6. Stone stated that he did not need to go to the hospital but he would request an appointment if the pain became worse. Id. Barlow instructed Martin that Stone was not to perform any job that required lifting. Martin Aff. ¶ 7. Accordingly, Martin assigned Stone to light duty work. Id.

Between July 24, 1997 and August 4, 1997, Stone continued to perform his normal duties without requesting further treatment for his injuries. Barlow Aff. ¶ 7. On August 4, 1997, Stone showed Barlow a picture of a Sacro-Ease unit that he wanted to place in his truck to absorb the shock that he incurred when riding in his company vehicle. Id. ¶ 8. Barlow instructed Martin to purchase the seat for Stone. Id. ¶ 9. That same day, Stone went to the VA Center for evaluation. Stone Dep. at 872. Two days later, Stone then gave SRC a note from the VA Center, stating that Stone was not to return to work until August 8, 1997, and a prescription for a Sacro-Ease unit. Barlow Aff. ¶ 10. When Barlow learned of Stone's visit to the VA Center, she immediately made an appointment for Stone to visit St. Vincent for evaluation. Id. ¶ 11. There, Stone was examined by Dr. Moody who diagnosed his condition as lower back strain. Id. ¶ 12. When Moody authorized Stone to return to work with limitations on August 7, 1997, Stone refused to sign the SRC "Return to Work Report" because he did not agree with Moody's evaluation or his recommendation that Stone could return to work so quickly. Stone Dep. at 356-57. Stone disputed Moody's diagnosis because he believed that the VA Center had declared him "disabled" based on the fact that he had been authorized to remain off work until August 8, 1997. Id. at 876. Stone returned to work on August 7, 1997. Martin Aff. ¶ 12. Initially, he was assigned light duty work in the warehouse which included counting and sorting parts. Id. ¶ 13.

On August 13, 1997, Stone returned to St. Vincent for a follow-up evaluation of his back pain. Stone Dep. at 883. He was examined by Dr. Timura who determined that Stone could return to work without limitations. Barlow Aff. Ex. D. Pursuant to this evaluation, Stone returned to regular full-time work status on August 14, 1997. Martin Aff. ¶ 14. Several days later, Stone was terminated for his "inability to adequately perform the duties and responsibilities of the SRC mechanic position to standards acceptable by the SRC." Def.'s Ex. 55.

Stone brought this action on April 26, 1999. Prior to filing suit, Stone filed a right to sue letter with the EEOC and received a right to sue letter. Compl. ¶ 4. At present, this case is before the Court on the motion for summary judgment filed by Citizens Gas on December 22, 1999. Citizens Gas asserts that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 12117, 42 U.S.C. § 2000e-5(g) and 28 U.S.C. § 1331. Having reviewed the factual background, the Court now turns to a brief overview of the standards governing its decision.

As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S. Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).

In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schaefer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997). Cases in which the parties agree that no genuine issues of material facts are in dispute and that the contested issues are purely legal ones are especially appropriate for summary judgment. Amax Coal Co. v. United Mine Workers of America, 92 F.3d 571, 574 (7th Cir. 1996).

On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. However, as the Seventh Circuit has recently emphasized, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994). Guided by these standards, this Court now considers the motion for summary judgment.

Stone contends that Citizens Gas discriminated against him when the company failed to provide reasonable accommodations for his back condition and terminated his employment in violation of the ADA. He further claims that Dennis Rosier, a Citizens Gas employee, violated the ADA when he made a discriminatory statement to the Indiana Workforce Development Agency in connection with Stone's request for unemployment compensation. The ADA prohibits discrimination against, and requires an employer to make reasonable accommodations for the known limitations of, an otherwise qualified employee with a disability. 42 U.S.C. § 12112(a), (b). Specifically, the statute provides that no covered entity "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a).

The ADA proscribes discrimination against only "qualified individual[s] with a disability." Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996). Therefore, for an individual to bring a claim under the statute, he must show: (1) there is a disability, and (2) he is a "qualified individual." To establish the existence of a disability, a plaintiff may show: (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such impairment, or (3) being regarded as having such impairment. Duda v. Franklin Park Pub. School Dist. 84, 133 F.3d 1054, 1058 (7th Cir. 1998). To be "qualified," a plaintiff must show that he is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment condition that such individual holds or desires." 29 C.F.R. § 12111(8).

To satisfy the threshold requirement of demonstrating that he is a qualified individual with a disability under the ADA in this case, Stone contends that he is actually disabled because his back condition substantially limits his ability to perform manual labor. To show that he has an actual disability under the ADA, Stone must demonstrate that he (1) has an "impairment" that (2) "substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A). An impairment is "any physiological disorder, cosmetic disfigurement or anatomical loss affecting one of the body's systems." Harrington v. Rice Lake Weighing Sys., Inc., 122 F.3d 456, 459 (7th Cir. 1997). To be "substantially limited" means that "the individual is either unable to perform, or significantly restricted as to the condition, manner or duration under which the individual can perform, a major life activity as compared to an average person in the general population." Krocka v. City of Chicago, 203 F.3d 507, 513 (7th Cir. 2000); 29 C.F.R. § 1630.2(j)(1)(ii).

Here, Stone points to a report issued by the Circle City Health Center in September of 1998 in which Dr. R.A. Hutson stated: "[I]t would be ideal if [Stone] were able to work in a situation where he did not have to lift more than 25 pounds occasionally and 10 pounds frequently. If he does have to bend forward at the waist, he should lock his spine into extension and safely bend forward at the hips up to about 45 degrees. Repeated twisting should also be avoided." Pl.'s Ex. 30. Because the plumbing and gasfitting trades require squatting as well as bending to shovel dirt, set fixtures and install underground pipes, Stone asserts that he will be limited to management work. Thus, he is "substantially impaired" in a major life activity as contemplated under the ADA. Without more, however, Stone's argument is unavailing as it is well-settled that in order to demonstrate a substantial limitation on his ability to work, it is not enough for the plaintiff to show that his impairment prevented him from performing one narrow job for his employer. Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1999). He must show instead that he was "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Id. At best the evidence put forth by Stone in this case shows merely that his back injury could impact his ability to work as a gasline mechanic or a plumber. Absent a showing that Stone will be likewise unable to find employment in additional fields, Stone has not shown that he is an individual with a disability who can bring a claim under the ADA. Therefore, Citizens Gas is entitled to judgment as a matter of law on the claims of discrimination relating to Stone's disability.

Stone also asserts that Citizens Gas terminated his employment in retaliation for filing several charges of discrimination with the EEOC. Under Title VII, it is unlawful to discriminate against employees who oppose unlawful employment practices or participate in a charge or investigation under the Act. Hunt-Golliday v. Metropolitan Water, 104 F.3d 1004, 1014 (7th Cir. 1997). An actual violation of Title VII by the employer is not a prerequisite for a retaliation claim; the employee need only have a sincere and reasonable belief that he is challenging conduct that violates Title VII. Id.

To establish a prima facie case of retaliation, a plaintiff must show: (1) that he engaged in a legally protected activity, (2) his employer subsequently took adverse employment action against him, and (3) the employment action was caused by his participation in the protected activity. Mottley v. Tractor Supply Co., 32 F. Supp.2d 1026, 1053 (S.D. Ind. 1998). In this case, summary judgment is appropriate because Stone has failed to establish a causal link between the filing of his discrimination charges with the EEOC and the termination of his employment. In March and April of 1997, Stone filed two charges of discrimination with the EEOC in which he stated that he was denied several positions within Citizens Gas because of his race, age and sex. To establish a causal link between these filings and his termination several months later, Stone only had to show "that the protected activity and the adverse action were not wholly unrelated." Id. (quoting Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985), cert. denied, 474 U.S. 981 (1985)). The Seventh Circuit has stated that "suspicious timing does constitute circumstantial, or indirect, evidence to support a claim of discrimination." Foster v. Arthur Andersen, 168 F.3d 1029, 1034 (7th Cir. 1999) (quoting Hunt-Golliday, 104 F.3d at 1004). But it is also true that the "timing of complaints, standing alone, does not create a genuine issue as to causal connection." Foster, 168 F.3d at 1034.

The evidence presented by Stone fails to demonstrate a causal connection between his termination and filings with the EEOC for two reasons. First, over four months passed by between the time that Stone made a charge of discrimination and Citizens Gas terminated his employment. Second, the undisputed facts show that Citizens Gas had a justifiable ground for terminating Stone in July 1997 when he negligently replaced a gas valve in such a manner as to create a gas leak in the customer's home but failed to do so. If Citizens Gas intended to discharge Stone in part because of his EEOC filings, Stone has shown no explanation for the delay. Stone has failed to establish a prima facie case of retaliation.

Stone has failed to present sufficient evidence from which the Court could find a genuine issue of material fact for trial in this matter. Therefore, the motion for summary judgment filed by Citizens Gas is GRANTED.