Allen v. City of Raleigh, 5:13–CV–522–D.

140 F.Supp.3d 470

Nathan P. ALLEN, Plaintiff,

v.CITY OF RALEIGH, Defendant.

No. 5:13–CV–522–D.

United States District Court, E.D. North Carolina, Western Division.

Signed Sept. 23, 2015.

James E. Hairston, Jr., Jeremy Ryan Leonard, M. Brad Hill, Hairston Lane Brannon, PA, Raleigh, NC, for Plaintiff.

Carolyn Bachl, Raleigh City Attorneys Office, Raleigh, NC, for Defendant.

ORDER

JAMES C. DEVER III, Chief Judge.

Nathan P. Allen ("Allen" or "plaintiff") seeks relief from his former employer, the City of Raleigh ("City" or "defendant"), under the Americans with Disabilities Act (as amended), 42 U.S.C. §§ 12101 –12213 ("ADA"). On March 4, 2014, the court dismissed four of Allen's claims but permitted his ADA failure-to-accommodate claim to proceed. See Allen v. City of Raleigh, No. 5:13–CV–522–D, 2014 WL 840735, at *7 (E.D.N.C. Mar. 4, 2014) (unpublished). On January 22, 2015, the City moved for summary judgment on Allen's remaining claim and filed a memorandum in support. See [D.E. 27, 28]; Fed.R.Civ.P. 56. On March 6, 2015, Allen responded in opposition. See [D.E. 37]. On April 8, 2015, the City replied. See [D.E. 40]. As explained below, the court grants the City's motion for summary judgment.

I.

Allen is a graduate of North Carolina State University and a trained paralegal. Allen Dep. [D.E. 29] 10–11. Allen worked in the City's Public Utilities Department from April 1989 until he retired in November 2013. While a City employee, Allen held three titles: "Water Meter Reader," "Senior Meter Reader," and "Water Meter Mechanic." While playing softball on a City softball team in May 2000, Allen injured his left shoulder and received a 40% permanent partial disability ("PPD") rating concerning his left shoulder in his workers' compensation case. Id. 11–12. Although Allen's shoulder injury limited his ability to lift and perform manual tasks, it did not affect his ability to perform his duties as a Water Meter Reader. Id. 1115. After the injury, Allen never requested or received an accommodation as a Water Meter Reader. Id. In August 2011, the City promoted Allen to Senior Meter Reader. Id. 13. Again, Allen's shoulder condition did not impact his ability to perform his duties as a Senior Meter Reader, and Allen never requested or received an accommodation. See id. 13–15.

On December 4, 2012, the City reclassified Allen's position—along with the positions of the two other Senior Meter Readers—to Water Meter Mechanic. Ray Decl. [D.E. 27–1 ¶ 3–4]; Conroy Decl. [D.E. 27–2] ¶ 3. On December 3, 2012, Karen Ray (the City Meter Superintendent) met with Allen and Jim Ockletree (another Senior Meter Reader) and told them that the City was reclassifying the three Senior Meter Reader positions to Water Meter Mechanic positions. Ray Decl. ¶¶ 5–6; Allen Dep. 25–26.¹ Allen then told Ray that he had a 40% PPD due to an old workers' compensation case and that he needed to see his doctor to assess his ability to perform the duties of a Water Meter Mechanic. See Allen Dep. 25–26; Ray Decl. ¶¶ 5–6. Ray, who did not know about Allen's shoulder injury, PPD, or old workers' compensation case, did not object and told Allen that, while his title would change, his job duties would not change from the job duties that he was performing as a Senior Meter Reader. See Ray Decl. ¶ 6.

On December 4, 2012, Ray emailed Sandra Perry, a Registered Nurse in the City Employee Health Center, and Shawnda Brown, a City Human Resources employee, and said:

It just came to my attention that I have an employee with a 40% medical disability who has had it for years and will apparently for life. Apparently he has managed his duties through his supervisors and I was never aware of this until today. The reason why it is now a potential issue is because we are changing his title from Sr. Meter Reader to Water Meter Mechanic. Essentially his functions won't change, so we shouldn't have a problem, but I need to make sure our ducks are in a row. Could one of you look to see if you have any information on this and let me know what his restrictions are.

[D.E. 27–1] 14.

On December 4, 2012, Nurse Perry responded. She wrote: "I don't have any notes from a doctor regarding a disability. Is the disability from a workers' compensation claim?" [D.E. 27–1] 13.

In order to assist Allen's doctor to understand the physical requirements of a Water Meter Mechanic, which would involve the same duties that Allen was performing as a Senior Meter Reader, Ray completed a four-page City checklist form entitled "Physical Activities and Requirements Checklist Visual Acuity and Working Conditions." See Ray Decl. ¶ 7; City Dep. Ex. [D.E. 30] 7–10. In completing the four-page City checklist form, Ray worked with Allen's immediate supervisor Darin DePaolo and Allen's next-level supervisor Lorenzo Holloway. See Ray Decl. ¶ 7; City Dep. Ex. 3. The four-page City checklist form listed the following physical activities for the Water Meter Mechanic position: stooping, kneeling, crouching, reaching, standing, walking, pushing, pulling, lifting, fingering, grasping, talking, and repetitive motions. See City Dep. Ex. 3. As for physical requirements, the form listed "Light Work," which the form described as:

Exerting up to 20 pounds of force occasionally, and up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. If the use of arm and/or leg controls require exertion of forces greater than that for sedentary work, and the worker sits most of the time, the job is rated for light work.

Id.

On December 4, 2012, Ray gave the four-page City checklist form to Allen to give to his doctor. See Ray Decl. ¶ 7; Allen Dep. 30–32. Allen continued to work under the title Water Meter Mechanic, but he performed the same duties that he had performed since August 2011 as a Senior Meter Reader. See Allen Dep. 30–41.

On December 4, 2012, Ray also contacted Rebecca Martin in the City's Risk Management Division, which handles the City's workers' compensation claims. See Ray Decl. ¶ 8. Ray learned from Martin that Allen had a 40% PPD for his left shoulder. See Ray Decl. ¶ 8 & Ex. 1. According to the November 2001 document in the City's file from Allen's doctor, Dr. Speer, Allen was limited to checking 150–200 meters a day with an average of 175. See id. Allen's duties as a Senior Meter Reader were well within this limitation in that Allen typically checked 15–25 meters per day. See Ray Decl. ¶ 8.

After Allen received the four-page City checklist form from Ray, Allen made an appointment with Dr. Speer for December 18, 2012. Dr. Speer had treated Allen since 2000. See Speer Dep. [D.E. 31] 6–7. Dr. Speer performed surgery on Allen's left shoulder in November 2000 and assigned him a 40% PPD under North Carolina Industrial Guidelines in connection with Allen's workers' compensation case. See id. 7–8. In approximately 2006, Dr. Speer told Allen not to lift more than 25 pounds. See id. 8. Dr. Speer examined Allen on December 18, 2012. See id. 8–9. During that visit, Dr. Speer reviewed the four-page City checklist form that Allen gave to him and "thought it was acceptable so [he] signed it designating [his] acceptance." Id. 10; City Dep. Ex. 3. The four-page City checklist form stated that Allen would perform "Light Work" and occasionally need to exert up to 20 pounds of force, and Dr. Speer believed that Allen could do that. See City Dep. Ex. 3; Speer Dep. 9–10, 20–21.

On December 19, 2012, Allen told Ray that his doctor okayed the physical activities in the four-page City checklist form. See Allen Dep. 36; Ray Decl. ¶ 9. Ray, in turn, advised Sandra Perry in the City Employee's Health Center and Shawnda Brown in Human Resources that Allen's doctor had cleared him to perform the activities in the four-page City checklist form. See Ray Decl. ¶ 9 & Ex. 2.

After Ray learned from Allen on December 19, 2012, that Dr. Speer had approved his ability to perform the activities in the four-page City checklist form and having checked with the Risk Management Division about any other limitations, Ray concluded that Allen could continue to perform the essential functions of Senior Meter Reader even though his job title was now Water Meter Mechanic. See Ray Decl. ¶ 9. At this point, on December 19, 2012, Ray believed that she had addressed Allen's concerns. Ray also believed that Allen understood that although he was working under the title Water Meter Mechanic, he would simply continue to perform the same duties that he had performed as a Senior Meter Reader. Id. Furthermore, Ray believed (based on what Allen told her) that Allen's doctor had approved Allen performing the duties. See id. ¶¶ 9–10. As Allen had done since December 4, 2012, Allen continued to work under the title Water Meter Mechanic but performed the duties of a Senior Meter Reader. See id.; Allen Dep. 56.

After Allen told Ray on December 19, 2012, that his doctor had approved Allen working in accordance with the four-page City checklist form, Allen gave the four-page City checklist form that Dr. Speer signed to Sandra Perry in the Employee Health Center. See Allen Dep. 37–39. According to Allen, Perry told Allen that he had been given the wrong form in light of his workers' compensation case. See id. 39. Soon thereafter, Allen spoke with a City employee named Precious in the Risk Management Division. Id. 41. According to Allen, Precious told Allen that he had received the wrong form to give to his doctor but that she would follow up on the issue. Id. 42–43. Allen did not relay this information to anyone, including Ray or his immediate supervisor DePaolo. Id. 43; see id. 46.

On January 3, 2013, Allen received a phone call from Dr. Speer's office. Id. 48. Dr. Speer's office told Allen that it had received some new documentation from the City regarding the Water Meter Mechanic position. See id. 49. The new documentation was a "Workers Compensation Medical Status Questionnaire" form and a two-page job description for the Water Meter Mechanic job. See id.; City ...