Lockard v. General Motors Corp. (128 F. Supp. 2d 458, 2001)

MEMORANDUM OPINION AND ORDER

ECONOMUS, District Ju'dge.

This matter is before the Court upon the respective Motions of the Defendants, General Motors Corporation (“GM”) and United Automobile, Aerospace and Agricultural Implement Workers Union, Local 1112 (“UAW”) for summary judgment (ECF-Dkt.# 40 & #47). The Plaintiff, Sandra Lockard (“Lockard”), has alleged in Counts I and II that GM has discriminated against her on the basis of disability in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., and Ohio Revised Code § 4112.02. Additionally, in Count III, the Plaintiff has claimed that GM has discriminated against her on the basis of her sex in violation of Title VII, 42 U.S.C. § 2000e, et seq.

The Plaintiff also has alleged in Counts V and VI that the UAW has discriminated against her on the basis of disability in violation of the ADA, and R.C. § 4112.02. Furthermore, in Counts VII and VIII, the Plaintiff has claimed that the UAW has discriminated against her on the basis of her sex in violation of Title VII and R.C. § 4112.02.

GM and the UAW have moved for summary judgment with respect to all of the above-stated claims.

For the following reasons, the respective Motions for Summary Judgment of GM and the UAW (ECF-Dkt.# 40 & # 47) are GRANTED.

FACTS

Unless otherwise noted, the following facts are undisputed. The Plaintiff has been employed by GM at the Lordstown Assembly Plan (“Assembly Plant”) and has been a member of the UAW since 1981. After suffering a work-related injury, the Plaintiff was on workers’ compensation leave for approximately eight years — from October 1981, to April 1989. Upon her return to the Assembly Plant, the Plaintiff worked various positions on the production line until she sustained another work-related injury in December 1990.

From December 1990, until August 1992, the Plaintiff was not consistently working at the Assembly Plant. During this time, the Plaintiff was either on leave of absence or was placed in short-term temporary positions through the Transitional Work Program (“TWP”) at the Assembly Plant. The TWP works in conjunction with the ADAPT process which facilitates the placement of workers returning from leaves of absence into temporary light-duty assignments to reacquaint them with the routine of working in the Assembly Plant. The objective of the ADAPT process itself is to ultimately locate a job which meets the employee’s medical restrictions and seniority under the local and national collective bargaining agreement (“CBA”). Under the CBA, a returning worker may only displace a less senior worker holding a position which matches the returning worker’s medical restrictions, unless the UAW agrees to an exception allowing the displacement of an employee with greater seniority. (See App. to GM’s Mot. for Summ.J., Exs. D & E.) The UAW has represented that is has not entered into such an agreement with GM at the Assembly Plant. (Basso Dep. at 45-6.)

The Plaintiff returned to full-time work in August 1992, when GM offered her the Left Seat Track Cover position. The ADAPT committee and Dr. Gordon selected that position because Dr. Gordon believed the job fit the Plaintiffs medical restrictions. Further, the committee concluded that the Plaintiff possessed sufficient seniority to hold the position. The Plaintiff, however, claimed that she could not perform the Left Seat Track Cover position because of her physical limitations and was assigned temporarily as a driver, a “tape puller” on the fender cover removal job, and a sweeper. The UAW asserts that the Plaintiff did not have enough seniority to hold any of these positions as a full-time employee.

Subsequently, the Plaintiff filed a grievance setting forth her claim under Paragraph 43(b) of the CBA which provides for a determination by an independent medical examiner whether an employee can perform a specific job. The independent medical examiner must review the requirements of the grievant’s job, and then determine whether she can safely perform that job within her restrictions. The independent medical examiner does not make any assessment or diagnosis of the griev-ant’s condition.

In the Plaintiffs case, she was examined by Dr. Daniel Dorfman (“Dorfman”) in April 1993. Dr. Dorfman concluded that the Plaintiff could perform the Left Seat Track Cover job consistent with her physical limitations. However, the Plaintiff refused to perform the Left Seat Track Cover job, asserting that it exceeded her physical limitations. In January 1994, the Plaintiff was placed in the “sniffer” job which was within her seniority and her medical restrictions. The sniffer job required the Plaintiff to detect leaks in the air conditioning units of automobiles on the line. The Plaintiff was given an elec-trie screwdriver instead of an air gun to accommodate her medical restrictions. The Plaintiff performed this job for several months, but returned to sick leave. The Plaintiff claimed that her foreman harassed her by placing the screwdriver in his locker at the end of her shift rather than letting her keep it in her own locker. After approximately one month of leave, the Plaintiff returned to the sniffer job only to leave for the same reasons in June 1994.

In September 1994, the Plaintiffs leave of absence was converted from workers’ compensation leave to extended disability leave. The Plaintiff remained on extended disability leave throughout 1994, and remained unassigned until March 1996. In March 1996, GM, through the ADAPT committee, placed the Plaintiff in the full-time Right Tail Light Secure job after informing her of its conclusion that the job fit both her medical restrictions and her seniority. During her deposition, the Plaintiff could not identify any other job at the Assembly Plant which satisfied both her medical restrictions and her seniority. (Lockard Dep. at 405-12.)

The Plaintiff held the Right Tail Light Secure job for approximately five months until August 17, 1996. At that time, the Plaintiff claimed that she could no longer perform the Right Tail Light Secure job because the work exceeded her medical restrictions. After leaving the Right Tail Light Secure position, the Plaintiff was subsequently placed on an extended leave of absence. During her leave of absence, the Plaintiff was examined by Dr. Edward J. Novosel, and a report was prepared which describes the Plaintiffs physical limitations. Dr. Novosel opined that the Plaintiff was “physically able to return to work” in the TWP as of February 10,1997, under the following restrictions: no lifting greater than five pounds with the left hand; no lifting greater than two pounds with the right hand; no repetitive pushing and pulling greater than two pounds with the right upper extremity; limit excessive extremes of right wrist flexion and extension; patient should avoid using any type of vibrating tools with the right upper extremity; no repetitive movement of the right upper extremity, including pushing, pulling, and twisting; no overhead lifting, pushing, pulling, or reaching. (App. to GM’s Mot. for Summ.J., Ex. G.) These findings are consistent with the findings made by Dr. Dorfman on April 5, 1993. (App. to GM’s Mot. for Summ.J., Ex. F.) Dr. Novosel requested that the Plaintiff continue working in the TWP until a “regular job” that fit her medical restrictions became available. (Id.) However, when GM subsequently attempted to reassign the Plaintiff to the Right Tail Light Secure job, she refused. The ADAPT committee originally placed the Plaintiff in that job because it was consistent with the April 1993, findings of Dr. Dorfman. (See App. to GM’s Mot. to Summ.J., Exs. F & G.)

Upon returning to work in August 1997, the Plaintiff assented that she could not perform the Right Tail Light Secure job within her restrictions. She then sought the assistance of her UAW Local Committeemen Mike Dando (“Dando”) and Drew Balach (“Balach”), and UAW Local Shop Chairman, A1 Alii (“Alii”), in obtaining a position within her restrictions. The UAW recommended that the Plaintiff file another Paragraph 43(b) grievance, but she refused, believing that she could rely upon the 1993 determination made by Dr. Dorfman. When the Plaintiff refused to submit to another Paragraph 43(b) evaluation, she was again placed on sick leave.

On September 29, 1997, the Plaintiff received a letter from GM stating that she would lose her seniority pursuant to Paragraph 111 of the CBA if she did not return to work within three days. The Plaintiff returned to the Assembly Plant with her husband, also a bargaining unit employee, Dando and Balach. The group met with Frank Marshino (“Marshino”), a management employee in Labor Relations. Marshino asked the Plaintiffs husband to leave the room, and when he refused, Marshino ended the meeting. The Plaintiff was subsequently discharged.

After the Plaintiff was discharged, she again asked the UAW for help. The UAW agreed to file a grievance on behalf of the Plaintiff which asserted that GM had violated Paragraph 111 of the CBA by discharging her. The Plaintiff tore this grievance up and asked for grievances to be filed under Paragraphs 6A, 72, and 108 of the CBA. The UAW prepared three grievances. The Plaintiff refused to sign the grievance setting forth her claim under Paragraph 111. The Plaintiff signed two other grievances under protest when the UAW would not append to them a fact statement which she had prepared. The UAW eventually obtained the Plaintiffs reinstatement through processing of the grievance which alleged a violation of Paragraph 111 of the CBA. Notwithstanding her reinstatement, the Plaintiff is currently on sick leave.

ANALYSIS

Fed.R.Civ.P. 56(c) governs summary judgment and provides, in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the evidence submitted must be viewed in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

“The burden on the moving party may be discharged if the moving party demonstrates that the non-moving party has failed to establish an essential element of his or her case for which he or she bears the ultimate burden of proof at trial.” Morales v. American Honda Motor Co., Inc., 71 F.3d 531, 535 (6th Cir.1995). If the moving party meets this burden, then the non-moving party must present additional evidence beyond the pleadings. Id. The non-moving party must present more than a scintilla of evidence in support of his or her position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment must be granted unless there is sufficient evidence favoring the non-moving party for a judge or jury to return a verdict for that party. Id. at 249, 106 S.Ct. 2505.

A. Disability Discrimination Claims

“The ADA prohibits covered employers from discriminating ‘against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.’ ” Hoskins v. Oakland County Sheriffs Dept., 227 F.3d 719 (6th Cir.2000) (quoting 42 U.S.C. § 12112(a)). An employer may discriminate against a person with a disability by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A). The ADA defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).

In the case sub judice, the Plaintiff claims that GM failed to reasonably accommodate her physical limitations and discharged her because of those limitations. In the absence of direct evidence of discrimination, a plaintiff must prove that

(1) he or she is disabled;

(2) is otherwise qualified for the job, with or without ‘reasonable’ accommodation;

(3) suffered an adverse employment decision;

(4) the employer knew or had reason to know of his or her disability; and

(5) after rejection or termination the position remained open, or the disabled individual was replaced.

Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1185 (6th Cir.1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). “Proof of these five facts, in the absence of an explanation by the employer, creates a mandatory inference that the employer intentionally discriminated against the disabled individual by taking an adverse employment action ‘solely’ because of his or her handicap.” Id. If, however, the employer provides a legitimate non-discriminatory reason for its adverse employment action against the plaintiff, “the plaintiff will bear the burden of establishing that the proffered reason is a pretext for unlawful discrimination.” Id. at 1185-86. Under this framework, the burden of persuasion remains with the plaintiff at all times. See id. at 1186-87 (citirig St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

1. Determination of Disability

This Court must determine, as a threshold matter, whether the Plaintiff is disabled under the ADA. The ADA defines disability as follows:

The term “disability’ means, with respect to an individual—

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. 12102(2). “The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). The regulations additionally provide factors to consider in determining whether a person meets the definition: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2