McCleary v. National Cold Storage, Inc.

67 F.Supp.2d 1288

Mark A. McCLEARY, Plaintiff, v. NATIONAL COLD STORAGE, INC., Defendant.

No. 98-4031-SAC.

United States District Court, D. Kansas.

September 30, 1999.

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Lisa Beth Otipoby, Kaw City, OK, James E. Rumsey, Lawrence, KS, for Plaintiff.

Donna S. Colley, Berens & Tate, P.C., Joseph Dreesen, Berens & Tate, P.C., Omaha, NE, Steven R. Fabert, Fisher Patterson, Sayler & Smith, Topeka, KS, Timothy M. Welsh, Berens & Tate, P.C., Omaha, NE, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This employment discrimination case comes before the court on the defendant National Cold Storage, Inc.'s ("National's") motion for summary judgment (Dk.33). The plaintiff, Mark A. McCleary ("McCleary"), claims that National terminated his employment in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. National seeks summary judgment on several grounds, including the plaintiff's inability to present a prima face case of disability discrimination. The plaintiff opposes summary judgment having filed a memorandum in opposition. (Dk.38). National seeks to strike portions of the plaintiff's memorandum in opposition arguing that the plaintiff's factual statements are not supported by record citations or are based on inadmissible evidence. (Dk.47). The plaintiff also opposes the motion to strike. (Dk.53). Finally, the court is aware that the plaintiff has filed a motion to reopen discovery (Dk.49) for the limited purpose of discovering National's knowledge of McCleary's medical condition.

SUMMARY JUDGMENT STANDARDS

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the out-come of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]here are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269; 1273 (10th Cir.1988).

The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; it requires "`present[ing] sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir. 1995).

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

Summary judgments are "used sparingly in employment discrimination cases." Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir.1995). Because discrimination claims often turn on the employer's intent, courts ordinarily consider summary judgment inappropriate to settle an issue like intent, Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir.1994); see Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994) ("[T]he summary judgment standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." (quotation and citation omitted)). Even so, summary judgment is not "per se improper," Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir.1992), and may be useful in weeding out claims and cases obviously lacking merit, Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir.1988) overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995).

STATEMENT OF UNCONTROVERTED FACTS

For purposes of this motion only, the court considers the following to be the uncontroverted facts relevant to its ruling:

1. From May 18, 1990, until his termination in October of 1996, McCleary worked for National as a forklift operator. On July 18, 1995, the plaintiff injured his left foot on the job when a forklift operated by another employee struck him. Prior to his injury, the plaintiff worked the second shift, 2:30 p.m. to 11:00 p.m., and regularly performed the checking work on the main dock that was assigned to some forklift operators.¹

2. As a result of his foot injury, McCleary was restricted from all work activity for some time. After surgery and a period of recovery, McCleary presented National with a treating physician's medical release dated July 6, 1996, stating that McCleary could do light duty work for four hours a day for the first two weeks, then six hours a day for the next two weeks, and then full eight-hour days. Despite a union grievance opposing any allowance for light duty work for McCleary, National permitted McCleary to work the light duty work schedule recommended by McCleary's treating physician. The light duty work kept McCleary primarily on a forklift.

3. McCleary next presented National with a treating physician's medical release dated August 2, 1996, that said he could return to regular work and could work longer than eight hours a day if part of his regular duty. Following this release, National returned McCleary to the work that he was doing before the injury, that is, principally checking work which required him to do more standing and walking.

4. McCleary complained to his supervisor that the daily walking required for the checking work was causing him pain and was difficult for him to do. McCleary was told he could not use a forklift to perform the checking work.

5. McCleary described the pain experienced with "the excessive walking" required for the checking work as a "`broomstick' pain on the ball of his foot, hot and cold flashes, burning on the top side arch of his foot, numbness, and needle like pain on the bottom of his foot." (Dk.38, p. 13, ¶ 37).²

6. On September 18, 1996, McCleary called in to say that he would not be at work because of pain in his foot. McCleary called in the next day, September 19, 1996, saying he was sick and would not be reporting for work. Between September 20, 1996, and October 11, 1996, McCleary did not contact National about reporting to work and did not pick up his paychecks.

7. On September 26, 1996, McCleary applied for the position of "Road Driver and/or Quarry" with Green Quarries, Inc., and wrote on the job application that he was "available for work" on September 26, 1996.

8. On October 11, 1996, McCleary reported to work at National with a treating physician's statement that was not signed but was dated "9/30/96." The statement read:

Mark has had some discomfort in his foot. This has been across the lateral aspect of his midfoot. He denies any antecedent injury. On exam he doesn't have any significant swelling. His area where his operation was seems to be holding up nicely. He does have some tenderness to palpation of the tarsal metatarsal region, particularly over the 3rd and 4th ray basis. There is no significant swelling. His tendinous strength is normal.

Recommend continued symptomatic care for this. I think he can return to his work duties next week. Recommend continued use of AFO. RTC on prn basis.

(Dk. 35, Tab 5, Ex. 4). McCleary learned on October 11, 1996, that National had terminated him.

9. As far as matters included in the summary judgment record offered to show the plaintiff's impairment at the time of his termination, the plaintiff submits the following:

A. Letter from Dr. Sergio Delgado, dated August 29, 1996, and addressed to McCleary's workers' compensation attorney. (Dk. 39, Tab 17). The letter reflects McCleary's complaints of "pain, coldness, burning, numbness and tingling in left leg and foot" and his explanation that the symptoms were aggravated by "exercising, standing, [and] walking." Dr. Delgado noted that McCleary wore a brace on his left leg and observed:

He has tenderness to pressure over the medial aspect of the [left] foot with some pain...