Dowling v. The Boeing Co.

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DOUGLAS DOWLING, Plaintiff(s), v. THE BOEING COMPANY, Defendant(s).

No. 4:21-cv-01414-SRC

United States District Court, E.D. Missouri, Eastern Division

March 27, 2023

MEMORANDUM AND ORDER

STEPHEN R. CLARK, CHIEF UNITED STATES DISTRICT JUDGE

Douglas Dowling, who has a prosthetic leg, quit his job as an assembly mechanic at the Boeing Company after Boeing allegedly, among other things, discriminated against him on the basis of his disability time and time again. He brought claims against Boeing under the Missouri Human Rights Act for disability discrimination, failure to accommodate, hostile work environment, and retaliation. Doc. 33. Boeing now moves for summary judgment on all claims. Doc. 39.

I. Background

Unless otherwise noted, the parties agree on the following material facts. Dowling began working for Boeing as an assembly mechanic in 2015. Doc. 44 at ¶ 1. Dowling worked on the F-15 team, id. at ¶ 11, on which, according to Dowling, mechanics performed “subassembly” of aircraft, id. at ¶ 15. In 2016, due to injuries sustained in a motorcycle accident, Dowling underwent surgery involving the amputation of his left leg above the knee. Id. at ¶¶ 2-3. After FMLA leave during which Dowling learned to use a prosthetic leg, he returned to work, still on the F-15 team. Id. at ¶¶ 4-5, 11.

A few years later, in August of 2019, Boeing transferred Dowling to the “F-18/Service Life Modification” program. Id. at ¶ 11. Mechanics on that team, according to Dowling, “rebuil[t]” entire aircraft. Id. at ¶ 15. Dowling soon requested a transfer back to the F-15 team, id. at ¶ 13, because according to Dowling, he faced physical difficulties in performing jobs on the F-18 team, id. at ¶ 15. After Dowling made the request, his supervisor, Ronnie Imm, purportedly assigned work that was “not on the F-18 aircraft”-an assignment that Dowling deemed a punishment for requesting a transfer. Id. at ¶ 14-15.

In January of 2020, Dowling complained that this non-aircraft work-specifically, climbing up and down ladders and carrying whiteboards-had aggravated his left leg. Id. at ¶ 19. Boeing's medical department then provided Dowling with temporary restrictions for one month to give Dowling time to get paperwork from his physician to support a request for permanent restrictions or accommodations. Id. at ¶ 22. A couple months after the temporary restrictions expired, Dowling returned to Boeing Medical. Dowling had not provided the appropriate paperwork from his physician, so a nurse issued three more months of temporary restrictions, again to give Dowling time to obtain the necessary paperwork. Id. at ¶¶ 25, 27.

On May 8, 2020, Dowling's F-18 supervisor, Imm, attempted to terminate Dowling after a dispute arising from Dowling's not wearing a COVID-19 facemask. Id. at ¶¶ 38-45. Imm and another Boeing employee walked Dowling out of the building and collected his badge, but Dowling's union eventually persuaded Boeing to allow him to return to work with lesser discipline than that of termination. Id. at ¶¶ 48-50. Boeing, upon Dowling's return in June, transferred him back to the F-15 team, where he reported directly to Ken Abram and where he would remain until the end of his employment with Boeing. Id. at ¶¶ 56-57.

Also in June, Dowling filed an internal ethics complaint alleging mistreatment by Imm and others. Id. at ¶ 58. Dowling's new manager, Abram, became aware of this complaint. Doc. 49 at ¶ 1. A couple months later, in August of 2020, Dowling also filed a charge of discrimination with the Missouri Commission on Human Rights, of which Abram also apparently became aware. Doc. 44 at ¶ 60-61; Doc. 40 at p. 30.

In the meantime, Dowling had been working with Boeing's medical department to get permanent accommodations. Dowling admits that-absent accommodations-he could not perform, or had difficulty performing, a number of tasks required of an assembly mechanic at Boeing. Doc. 44 at ¶¶ 109-110. After receiving the relevant paperwork from Dowling's physician on May 14, 2021, Boeing issued Dowling an electric scooter for transportation around the building as a permanent accommodation. Doc. 44 at ¶ 72. Boeing also arranged for Dowling to undergo a “functional capacity evaluation” with a third-party provider. Id. at ¶ 75. The administering physical therapist wrote in his report that Dowling met only 45.45% (5/11) of the job demands required of an Assembly Mechanic. Id. at ¶ 77. After receiving the report, Boeing granted all of the permanent restrictions that Dowling's doctor had recommended. Id. at ¶ 78.

Sometime in 2021, Dowling's F-15 supervisor, Abram, filed a report with Boeing Ethics about Dowling's refusal to perform assigned work. Id. at ¶ 94. A Boeing investigator reached out to Dowling to discuss Abram's report in November. Id. at ¶ 95. Eventually, on November 28, 2021, Dowling sent the investigator an email stating, “[a]s of this date, I am resigning from my employment with Boeing.” Id. at ¶ 97. The next day, he placed a copy of that email on Abram's desk and left Boeing for good. Id. at ¶¶ 98, 100-102.

The following January, Dowling amended his second charge of discrimination to allege that Boeing constructively discharged him. Id. at ¶ 103. Dowling brought a state-court action, which Boeing removed to this Court. Docs. 7, 1. Dowling has since amended his complaint, Doc. 33, and Boeing now seeks judgment on all claims, Doc. 39.

II. Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, “[a] party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.” Rule 56(a) also provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the initial burden of showing both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed.R.Civ.P. 56(a).

In response to the proponent's showing, the opponent must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed.R.Civ.P. 56(c). Self-serving, conclusory statements without support will not suffice to defeat summary judgment. Armour & Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993). The opponent must show a genuine issue of fact, meaning a reasonable jury could return a verdict in its favor. Liberty Lobby, 477 U.S. at 248.

III. Discussion

A. Disability Discrimination

Dowling alleges that Boeing discriminated against him on the basis of his disability in violation of the Missouri Human Rights Act by, among other things, constructively discharging him. Doc. 33 at ¶¶ 79-88. Boeing seeks judgment on this claim, arguing the absence of any material fact and entitlement to judgment under the MHRA. Doc. 39 at ¶¶ 5-8. The MHRA provides:

1. It shall be an unlawful employment practice:

(1) For an employer, because of the . . . disability of any individual:

(a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . disability[.]

Mo. Rev. Stat. § 213.055.1(a). The statute defines “disability,” in relevant part, as “a physical . . . impairment which substantially limits one or more of a person's major life activities, . . . which with or without reasonable accommodation does not interfere with performing the job ....” Id. § 213.010(5). “[P]erforming the job,” more specifically, means the employee must be able to perform the “essential functions” of the job with or without a reasonable accommodation. Mo. Code Regs. Ann. tit. 8, § 60-3.060(1)(F). “In other words, if despite the substantial limitation the physical impairment otherwise causes, the employee can perform the essential functions of his job with or without a reasonable accommodation, then he has a ‘disability' for purposes of the MHRA” and can claim the statute's protection. Loerch v. City of Union Mo., 643 S.W.3d 597, 602 (Mo.Ct.App. 2022).

Dowling must prove that he has a “disability” within the meaning of the MHRA “[a]s a Valentine Radford Commc'ns, Inc., 173 S.W.3d 315, 321 (Mo.Ct.App. 2005). “The first aspect of the threshold inquiry is whether Plaintiff's [physical impairment] substantially limits a major life activity. One such ‘major life activity' is the activity of working.” Id. at 602-03 (first citing Mo. Code Regs. Ann. tit. 8, § 60-3.060(1)(C); and then citing State ex rel. Sir v. Gateway Taxi Mgmt. Co., 400 S.W.3d 478, 490 (Mo.Ct.App. 2013)). The parties agree on facts showing that Dowling's impairment “substantially limit[ed]” his ability to work. E.g., Doc. 44 at ¶¶ 109-110.

The parties diverge, however, when it comes to the next aspect of the threshold inquiry: “whether, [1] with or without reasonable accommodation, [2] Plaintiff was able to perform the essential functions of his job.” Loerch, 643 S.W.3d at 603 (first citing Mo. Rev Stat. § 213.010(5); and then citing Mo. Code Regs. Ann. tit. 8, § 60-3.060(1)(F)) (emphasis added). “‘[E]ssential functions' refer to those ‘fundamental job duties' of the position.” Id. at 604 (citing 29 C.F.R. § 1630.2(n)(1)). Dowling admits that, without accommodation...