Kintz v. United Parcel Serv. Inc.

766 F.Supp.2d 1245

94 Empl. Prac. Dec. P 44,103

42 NDLR P 180

Cheri J. KINTZ, Plaintiff,

v.UNITED PARCEL SERVICE, INC., Defendant.

Case No. 3:09–cv–1033–MEF.

United States District Court, M.D. Alabama, Eastern Division.

Feb. 7, 2011.

Kathryn Mae Dickey, Law Offices of Kathryn Dickey, Montgomery, AL, Kenneth Drew Haynes, Haynes & Haynes, PC, Birmingham, AL, for Plaintiff.Donald Randolph James, Jr., William Joseph Baxley, Baxley, Dillard, Dauphin McKnight & Barclift, Birmingham, AL, Lisa H. Cassilly, Alicia P. Starkman, Alston & Bird LLP, Atlanta, GA, for Defendant.

MEMORANDUM OPINION AND ORDER

MARK E. FULLER, Chief Judge.

I. INTRODUCTION

Plaintiff Cheri J. Kintz (“Kintz”) filed suit against her employer United Parcel Service, Inc. (“UPS”) alleging that UPS discriminated against her on the basis of her sex and disability in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“the ADA”). This cause is before the Court on UPS's Motion for Summary Judgment (Doc. # 28), filed September 30, 2010. For the foregoing reasons, that motion (Doc. # 28) is GRANTED.

II. JURISDICTION AND VENUE

This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 (federal question) and § 1343 (civil rights). The parties do not assert that this Court lacks personal jurisdiction over them, and there is no dispute that venue is proper pursuant to 28 U.S.C. § 1391(b).

III. LEGAL STANDARD

Summary judgment pursuant to Federal Rule of Civil Procedure 56(a) is appropriate “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.” A party may demonstrate the existence of or absence of a genuine dispute as to any material fact by pointing to materials in the record “including depositions, documents, electronically stored information, affidavits, or declarations, stipulations ... admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c). The movant “always bears the initial responsibility of informing the district court of the basis for its motion,” and identifying those evidentiary submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322–23, 106 S.Ct. 2548.

Once the moving party has met its burden, Rule 56 “requires the nonmoving party to go beyond the pleadings” and by its own evidentiary submissions or those on file, demonstrate that there is a genuine factual dispute for trial. Id. at 324, 106 S.Ct. 2548. The Court must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a).

IV. FACTS AND PROCEDURAL HISTORY ¹

UPS hired Kintz in 1996. In 2003, Kintz became a full time package car driver with the package center in Opelika, Alabama. (Doc. # 28 Ex. A, Tr. at 35–44). Package car drivers operate the familiar brown UPS delivery trucks, delivering and picking up packages to and from UPS customers on pre-assigned delivery routes. (Doc. # 28 Ex. B ¶ 3). Kintz was still employed with UPS at the time this case was filed.

A. Kintz's injury and alleged disability

On January 5, 2004, while working as a package car driver, Kintz sustained injuries when a package of lawnmower blades weighing seventy pounds fell from the top shelf of the package car onto her right foot and ankle. (Doc. # 34 Ex. 1). Kintz reported her injury to her supervisor Tommy Sanders, who instructed Kintz to continue working. Id. On January 6, 2004, Kintz visited Dr. Kent Klinner who examined her injury and recommended that Kintz return home and keep her foot elevated for the next few days. Id. Dr. Klinner also suggested that UPS change Kintz's work restrictions to light duty. Id.

UPS gave Kintz temporary alternate work to do because she was unable to perform the regular job duties required of a package car driver. (Doc. # 28 Ex. A, Tr. at 45–46). However, according to the collective bargaining agreement between UPS and the International Brotherhood of Teamsters that controls the terms and conditions of Kintz's employment with UPS ( Id. at 37–38), Kintz was only entitled to temporary alternate work for 28 days. Id. at 45–46. At the end of this 28 day period, Kintz's doctor still hadn't released her to return to work as a package car driver so Kintz took a workers' compensation leave of absence. Id. at 46.

Between 2004 and 2006, Kintz was periodically cleared for work by her doctors. Id. at 47–48. But each time she returned as a package car driver, she would experience sharp pains in her right leg and would have to go back on leave. Id. at 48, 58. Kintz underwent surgery on her right foot in 2006 while under the care of Dr. John Kirchner. (Doc. # 34 Ex. 3, Tr. at 59). After healing from the initial surgery, Dr. Kirchner recommended a second surgery. Id. at 67–68. Kintz obtained a second opinion about the surgery from Dr. Angus McBryde. Id. Kintz did not undergo a second surgery, but instead began a program of work hardening in March 2007. Id. at 70. Work hardening is a type of therapy prescribed to build a patient's strength so that the patient can return to work. Id. at 63. In the summer of 2007, Dr. McBryde again cleared Kintz for work, and she resumed her package car driving duties on June 11, 2007. Id. at 79.

At UPS, delivery routes are assigned through a bidding process which gives employees with seniority priority in selecting routes. Id. at 82–83. Employees are not eligible to bid on a route until they reach a certain threshold of seniority. Id. When Kintz left her driving position in 2004 to take a workers' compensation leave of absence, she had not yet accrued enough seniority to obtain a dedicated, assigned package delivery route. Id. at 81. However, Kintz accrued seniority while on workers' compensation leave. Therefore, when she returned to work in 2007, she was able to bid on and win an assigned route. Id. at 83–85. Upon her return, she immediately began driving her assigned route. Id. at 108. But approximately three weeks after returning to work, Kintz began experiencing swelling in her foot and was placed on temporary alternate work in lieu of driving her route. Id. at 108–10. On August 14, 2007, Dr. McBryde again cleared Kintz for work as a package car driver. Id. at 120–21.

At some point during 2007, Kintz was fitted for a hard plastic brace. (Doc. # 34 Ex. 1). She wears the brace while at work, but does not wear the brace when off-duty. (Doc. # 34 Ex. 3, Tr. at 151). Kintz has trouble walking long distances, up steep inclines, or barefoot. (Doc. # 34 Ex. 1). She experiences pain in her foot, leg, and lower back for which she must take medication. Id. The injury forces Kintz to walk with a limp, and one leg is now longer than the other. Id. Kintz must wear orthodics in her shoes to compensate for the limp and length difference. Id. Dr. McBryde has certified to the Alabama Department of Revenue, Motor Vehicle Division that Kintz is unable to walk two hundred feet without stopping, and cannot walk without the use of a brace. (Doc. # 34 Ex. 22). Dr. McBryde also certified that Kintz suffers from a long-term disability. Id.

B. Requests for a package car with automatic transmission

In mid–2007, most of the package cars located at the Opelika UPS center where Kintz worked were equipped with manual transmissions. (Doc. # 28 Ex. B ¶ 3). Package cars are assigned to delivery routes based on the package volume and customer needs associated with each route. Id. Since package cars are assigned to specific routes, and most routes are assigned to particular drivers through the seniority-based bidding system, most package cars are operated by the same driver each day. Id. When Kintz returned to work on June 11, 2007, her route was assigned to a package delivery car that had a manual transmission system. Id. After starting her route on June 11, 2007, she experienced pain and swelling in her foot, which she attributed to having to use a manual transmission truck. (Doc. # 34 Ex. 3, Tr. at 108–10). On June 18, 2007 she requested that UPS provide her with an automatic transmission truck, because the standard transmission was overworking her foot. (Doc. # 34 Ex. 14). Because of the swelling in her foot, she was placed on temporary alternate work on July 2, 2007 and remained on light duty until being cleared again for work as a package car driver on August 14, 2007. (Doc. # 34 Ex. 3, Tr. at 109–10). After being placed on temporary alternate work, Kintz requested a package car with automatic transmission which she believed would be easier to operate with her injury. (Doc. # 28 Ex. B ¶ 8).

Sometime after that, the Opelika package center received new package cars, some of which were equipped with automatic transmissions. (Doc. # 28 Ex. B ¶ 4). Based on her request and the needs of the package car routes serviced from the Opelika package center, Kintz was assigned an automatic transmission vehicle soon after her return to work in August 2007. Id.

Kintz drove the automatic transmission vehicle without incident until June 10, 2009. Id. ¶ 5. On June 9, 2009 Kintz took a day off from work and another driver was assigned to her route. ( Id.; Doc. # 34 Ex. 3 Tr. at 129–32). The substitute driver...