Wicks v. Riley County Bd. of County Com'Rs

125 F.Supp.2d 1282

Jeffrey M. WICKS, Plaintiff, v. RILEY COUNTY BOARD OF COUNTY COMMISSIONERS, the City of Manhattan, Kansas, Defendants.

No. 98-4049-DES.

United States District Court, D. Kansas.

November 30, 2000.

Patrick R. Barnes, Scott, Quinlan & Hecht, Topeka, KS, for plaintiff.

Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants' Motion for Summary Judgment (Doc. 32) brought pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiff's First Amended Complaint (Doc. 13) presents two claims: the first is a discrimination claim under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the second is a retaliatory discharge claim brought under state law. For the following reasons, defendants' motion is granted.

I. BACKGROUND

Plaintiff was employed by defendants as an Animal Control Officer ("ACO") from September 1991 till his eventual termination in March 1997. On April 27, 1996, plaintiff was involved in an on-the-job automobile accident. He asserts injuries sustained in that accident have permanently impaired him, and that when he attempted to return to work, defendants terminated him in violation of the ADA and state law.

Throughout his employment, plaintiff was one of only two ACOs employed by the defendants. Due to the "on-call" nature of the job, the two ACOs split the week into two three and a half day shifts. Plaintiff generally worked eleven hours per day with his shift beginning on Wednesday afternoon and concluding on Saturday evening. With this arrangement, only one ACO was ever on duty at any given time. For the majority of plaintiff's tenure the second ACO was John Yadon — who also served as plaintiff's immediate supervisor. Charles Murphy, Director/Health Officer of the Riley County/Manhattan Health Department, served as supervisor to both plaintiff and Mr. Yadon.

Plaintiff's responsibilities were primarily three-fold: patrolling, in an official vehicle, throughout the city of Manhattan; responding to calls for assistance, which were coordinated through the Riley County Police Department ("RCPD"); and maintaining the defendants' animal shelter. The position of ACO requires some heavy physical exertion, including occasionally lifting and/or carrying animal carcasses weighing up to 150 plus pounds.

Within both parties' filings, a substantial amount of effort is spent detailing plaintiff's work history. This year by year description, which is substantially uncontroverted, casts plaintiff as an average worker. Plaintiff was regularly evaluated, with his reviews showing both negative and positive characteristics. Routinely plaintiff was given negative reports concerning his response times to emergency calls received from the police dispatcher. The court does not find it necessary to discuss in further detail plaintiff's performance evaluations prior to his on-the-job injury. The court does make note, however, that in plaintiff's final evaluation before his accident he was considered to be meeting or exceeding all of the standards within his employment responsibilities.¹ (Ex. 25).

On April 27, 1996, while driving his official vehicle, plaintiff's vehicle was struck from behind. As a result of this collision, plaintiff suffered neck and back trauma, which prevented him from returning to work until October 2, 1996.² During this period of convalescence, plaintiff was seen by several doctors and was eventually referred to Eric E. Hansen, M.D. Plaintiff began a program of work conditioning under Dr. Hansen on August 20, 1996, which culminated in plaintiff's discharge to full duty status for a trial basis on October 1, 1996. Later, on February 4, 1997, Dr. Hansen opined that plaintiff suffered a nine percent whole body permanent impairment due to cervical lumbar strain and degenerative disc disease.

On September 30, 1996, the day before his discharge to full duty status, plaintiff underwent a physical examination by Kim Frankenfield, M.S. The tests showed that "[a]t discharge, patient was successfully demonstrating general tolerances for his job such as driving, lifting, bending, reaching and squatting." (Ex. 36).³

Upon his initial return to work, plaintiff asked for and was granted an additional thirty minutes of break time. Plaintiff allegedly needed this time to exit from his patrol vehicle and change position to alleviate his neck and back pain. After two weeks, however, plaintiff was denied the additional break time. Plaintiff did use a lumbar cushion when driving his patrol vehicle. When plaintiff complained about his pain to Mr. Murphy, he was instructed to reduce the air pressure in his vehicle's tires, yet plaintiff was warned that patrolling was an essential element of his job.

Plaintiff did request from Mr. Yadon a two-wheeled dolly and access to a patrol truck with a ramp. Plaintiff alleges that a ramp and dolly system would have allowed him to lift heavier animal carcasses into the truck without pain or re-injury. Defendants argue that plaintiff failed to follow the proper acquisition procedures in requesting this equipment, yet it is undisputed that plaintiff informed Mr. Yadon about his request and no dolly was ever provided.

Plaintiff continued performing his employment tasks, yet it appears he persisted in taking additional breaks when patrolling, even though such actions were clearly unauthorized by Mr. Yadon and Mr. Murphy. Plaintiff asserts that he was willing to add minutes to his shift to compensate for the break time. Additionally, he claims that when not patrolling he returned to the animal shelter and assisted the staff. However, in an evaluation review appraising plaintiff's performance from April 1, 1996, to November 13, 1996, Mr. Yadon rated plaintiff as "unacceptable" in his task of patrolling. Mr. Yadon noted that plaintiff "[h]as trouble with patrolling since his back and neck injury. Needs periodic breaks to rest." (Ex. 48).

On November 14, 1996, while on duty, plaintiff opened a sealed envelope addressed to "Animal Warden, John Yadon." Inside was a typed, unsigned letter⁴ presenting a complaint regarding plaintiff's work performance. Plaintiff alleges that he inadvertently opened the envelope, however, he immediately discussed the letter and its contents with Mr. Murphy. The complaint's substance proved to be groundless, and plaintiff was completely vindicated in regards to the incident.

Plaintiff, however, was upset by the complaint and demanded an apology from the RCPD. Mr. Murphy and Mr. Yadon attempted to get plaintiff an apology, yet the RCPD refused their request. Plaintiff filed a grievance concerning the matter, again demanding that the RCPD issue an apology. Apparently before Mr. Murphy had dealt with the grievance, plaintiff placed a phone call to Bob Snead, acting President of the Riley County-Manhattan Board of Health, describing his difficulty in having his grievance properly processed.

On January 13, 1997, Mr. Murphy informed plaintiff that he should attempt to resolve his conflict with the dispatchers through informal channels. Plaintiff, Mr. Yadon, and Mr. Murphy had several discussions aimed at resolving the matter, but plaintiff was adamant in his desire to have RCPD apologize. On February 7, 1997, plaintiff told Mr. Murphy that he was going to appeal his grievance to the Riley County-Manhattan Health Board. Referring to the Riley County-Manhattan Health Department Personnel Manual, Mr. Murphy informed plaintiff that this matter was not appealable, and plaintiff was told not to attempt any appeal.⁵

On February 17, 1997, plaintiff wrote a letter to Mr. Snead informing him of his intent to appeal his grievance. In response, Mr. Snead sent a memorandum to the other members of the Board apprizing them of the situation and opining that the Board had no basis to hear plaintiff's appeal. Later, on February 28, 1997, the Board met and decided not to consider plaintiff's appeal.

Plaintiff received his final performance review on February 27, 1997, which covered the appraisal period of December 19, 1996, to February 19, 1997. Mr. Yadon gave plaintiff on overall rating of unsatisfactory and recommended that plaintiff should not be retained. Thereafter, in a letter dated March 3, 1997, Mr. Murphy informed plaintiff that he was being terminated effective March 7. Mr. Murphy stated that plaintiff was being dismissed, pursuant to the Personnel Manual, because he had received two unsatisfactory evaluations in the previous ninety days. However, in a letter dated March 6, 1997, plaintiff informed Mr. Murphy that he was going to appeal his dismissal because his evaluations had in fact not been within ninety days. In a letter also dated March 6, Mr. Murphy responded by noting that plaintiff was correct, for his two negative evaluations were received within a ninety-eight day span. The letter, therefore, modified the reason for plaintiff's termination. Mr. Murphy offered the following four rationales for dismissing plaintiff:

You continue to pursue an apology from the police department after you were told that seeking an apology was not an appropriate response to resolving the dispatch issue.

You appear to have difficulty performing your duties due to physical limitations.

You have received numerous unsatisfactory evaluations from your supervisors.

I gave you specific instructions not to contact the Board of Health because you did not have an appealable issue. I also read you the portions of the manual that applied to appeals when I gave you this instruction. You ignored my instruction and contacted the President.

(Ex. 59). Plaintiff appealed Mr. Murphy's decision. Thereafter, the Board heard plaintiff's appeal and denied plaintiff's request.⁶

As to plaintiff's first claim, defendants' motion argues plaintiff has failed to show that he is disabled as defined under the ADA, in the alternative,...