Loerch v. City of Union Mo.

643 S.W.3d 597

Steven LOERCH, Appellant,

v.CITY OF UNION MISSOURI, Respondent.

No. ED 109707

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: February 15, 2022

Application for Transfer to Supreme Court Denied March 21, 2022

Application for Transfer Denied May 17, 2022

Jonathan C. Berns, Amanda D. Anthony, 5017 Washington Pl. Ste. 300, St. Louis, MO 63108, For Appellant.

Richard J. Behr, Sean P. Dolan, 211 N. Broadway Ste. 2500, St. Louis, MO 63102, For Respondent.

OPINION

Colleen Dolan, J.

Stephen Loerch ("Plaintiff") appeals from the summary judgment entered in favor of the City of Union ("Defendant") on his petition claiming disability discrimination under the Missouri Human Rights Act ("MHRA"), § 213.010, et seq.¹ Defendant moved for summary judgment on the ground that Plaintiff does not have a "disability" as that term is defined in the MHRA. In his sole point on appeal, Plaintiff contends the material facts are genuinely disputed and Defendant is not entitled to judgment as a matter of law. We reverse and remand.

I. Background

Plaintiff was a long-time employee of Defendant, working as a custodian at the City Hall building from 1990 to 1992 and again from 2007 until 2015. In the intervening years, Plaintiff worked as a laborer in other city departments. Plaintiff's responsibilities as the sole City Hall custodian included indoor and outdoor tasks. According to the written job description, the work was "mostly in office settings." It listed the following outdoor tasks as part of the custodian's "Principal Duties and Responsibilities":

• Wash windows, inside and out, twice a month;

• Maintain grounds by mowing lawns, trimming shrubs, and raking leaves;

• Apply fertilizer and/or weed killer to lawn as needed;

• Water lawn and outdoor plants as needed;

• Sweep sidewalk, steps[,] and ramp;

• Pick up any trash;

• Remove snow and ice from sidewalk, steps[,] and ramp immediately after each snowfall.

The written job description also stated:

The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job....

While performing the duties of this job, the employee occasionally works in outside weather conditions mostly during daylight hours but occasionally during night-time hours. The employee is frequently exposed to extreme summer heat, extreme winter cold, wet and/or humid conditions and outdoor airborne particles.

Plaintiff's supervisor testified that the written job description was accurate and estimated that, while the majority of the custodian's time was spent working indoors, 25% of the time was spent working outdoors. Plaintiff disagreed. He testified that, contrary to the written description, he was not "frequently" exposed to extreme temperatures and estimated he spent only 10% of his time working outside. Plaintiff and the supervisor agreed that he had discretion to order his workday, and had at times started his workday as early at 5:00 a.m.

In 2013, Plaintiff was diagnosed with coronary artery disease ("CAD"), but continued working for Defendant as a custodian without incident. In 2015, Plaintiff underwent a physical in order to be considered for a laborer position with the parks department. In a letter to Plaintiff's supervisor, the doctor who performed the physical stated that Plaintiff "is cleared to remain at his current job and activities" but should "not go to any position where he will be exposed to extreme heat or cold environment." The doctor's "recommendation" was for Plaintiff to "maintain his current position."

Plaintiff's supervisor put him on light duty, restricting him from performing his outdoor duties. Plaintiff disagreed that his restriction meant he could no longer perform any outdoor duties. He asserted that he could perform "virtually all" of his outdoor duties without exposure to extreme temperatures. For instance, he could continue to mow early in the day to avoid exposure to extreme heat, which he said had been his practice. Plaintiff also asked if another employee could be assigned to the task of mowing. Plaintiff believed the only duty that potentially would expose him to extreme conditions was snow and ice removal and asked that another employee be assigned to that task. In the past, other employees had assisted with snow and ice removal and performed that and other tasks for Plaintiff when he was absent from work.

Plaintiff's requested accommodations were denied, and he claims he was told he had to retire or be terminated. After he retired, he filed the instant lawsuit claiming that he was terminated or constructively discharged because of his disability in violation of the MHRA. Defendant moved for summary judgment on the ground that the undisputed facts negate that Plaintiff has a "disability" as that term is defined in the MHRA. Specifically, Defendant contended that Plaintiff's CAD does not substantially limit him from the major life activity of working and that there was no reasonable accommodation that would have enabled Plaintiff to work outside in extreme temperatures, which was an essential function of the custodian job. The trial court granted summary judgment, and this appeal follows.²

II. Standard of Review

Review of a summary judgment is de novo. ITT Commercial Finance Corp. v. Mid–America Marine Supply Corporation , 854 S.W.2d 371, 376 (Mo. banc 1993). As the movant, Defendant bears the initial burden of setting out the uncontroverted material facts and demonstrating that judgment as a matter of law flows from those material facts. See Blackwell Motors, Inc. v. Manheim Services Corporation , 529 S.W.3d 367, 373 (Mo. App. E.D. 2017) (citing Columbia Mutual Insurance Company v. Heriford , 518 S.W.3d 234, 240 (Mo. App. S.D. 2017) ). If that prima facie summary judgment burden is not met, then the analysis ends and the motion must be denied. See Columbia , 518 S.W.3d at 241. If that initial burden is met, then the opposing party can overcome summary judgment by demonstrating either that there is a genuine dispute over the material facts or that the undisputed facts do not establish the right to judgment as a matter of law. See id. at 241–42. Facts come into the summary judgment record only via the numbered paragraphs and responses required by Rule 74.04(c).³ Green v. Fotoohighiam , 606 S.W.3d 113, 116 n.5 (Mo. banc 2020) (noting, as other courts have, that the version of Rule 74.04(c) in effect at the time ITT was decided did not contain the same requirement).

We will affirm if the judgment is proper based on any ground raised in the motion and supported by the accompanying summary judgment record. Clark v. Kinsey , 488 S.W.3d 750, 756 (Mo. App. E.D. 2016). Summary judgment is seldom appropriate in employment discrimination cases "because such cases are inherently fact-based[.]" Daugherty v. City of Maryland Heights , 231 S.W.3d 814, 818 (Mo. banc 2007), abrogated on other grounds by § 213.101.4.⁴

III. Discussion

It is unlawful under the MHRA for an employer to discharge an employee because of that employee's disability. § 213.055.1(1)(a). As a threshold element of his MHRA claim, Plaintiff must prove that his CAD is a "disability" within the meaning of that act. See Medley v. Valentine Radford Communications, Inc. , 173 S.W.3d 315, 321 (Mo. App. W.D. 2005). In relevant part, "disability" is defined in the MHRA as "a physical or mental impairment" that "substantially limits one or more of a person's major life activities" and that "with or without reasonable accommodation does not interfere with performing the job." § 213.010(5). As further defined in the relevant regulations, the employee must be able to perform the "essential functions" of the job with or without a reasonable accommodation. 8 CSR 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.

There is no dispute that Plaintiff's CAD is a "physical impairment." But Defendant contends the undisputed facts show that (a) Plaintiff's CAD does not substantially limit a major life activity and (b) there was no reasonable accommodation that would have enabled Plaintiff to perform the essential functions of the custodian job. We disagree.

A. Substantial Limitation on Major Life Activities

The first aspect of the threshold inquiry is whether Plaintiff's CAD substantially limits a major life activity. One such "major life activity" is the activity of working. See 8 CSR 60-3.060(1)(C) ; State ex rel. Sir v. Gateway Taxi Management Company , 400 S.W.3d 478, 490 (Mo. App. E.D. 2013).⁵ A substantial limitation on the major life activity of working means the person is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." Daugherty , 231 S.W.3d at 821-22 (internal quotation marks and citations omitted). The inability to perform a single, particular job does not amount to a substantial limitation. Id.

Defendant contended in the summary judgment motion that Plaintiff's restriction from working outdoors in extreme temperatures does not amount to a substantial limitation on employment because Plaintiff can still work in many jobs across a broad range of job classes. To support its right to judgment on this ground, Defendant relied entirely on the fact that since leaving Defendant's employ, Plaintiff has found two jobs that require no outdoor work, as a bagger at a grocery store and a floor technician/night custodian at a hospital. Even though that fact is undisputed, Plaintiff's ability to find those two particular jobs does not negate a finding that Plaintiff is substantially limited in his ability to work. Just as the inability to perform a particular job does not amount to a substantial limitation, the ability to find a particular job does not preclude a...