Linda S. Cooper v. Olin Corp. ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-1465
___________
Linda S. Cooper,
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Olin Corporation, Winchester Division, *
*
Appellee. *
___________
Submitted: December 11, 2000
Filed: May 1, 2001
___________
Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, and HANSEN,
Circuit Judges.
___________
WOLLMAN, Chief Judge.
Linda S. Cooper appeals from the district court’s grant of summary judgment in
favor of her former employer, Olin Corporation (Olin), on her claims under the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, and the
Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654. We affirm in part and
reverse and remand in part.
I.
We recite the facts in the light most favorable to Cooper. In 1966, Cooper began
working at the Lake City Army Ammunition Plant in Independence, Missouri, and
continued to do so until 1997. The plant is operated by private companies under
contract with the United States Army. Olin assumed its operation in 1985. Cooper
was diagnosed with depression in the 1970s and since that time has been prescribed
various treatments and prescription medications, including Xanax in recent years. Olin
has had knowledge of her Xanax prescription at least since 1993. In 1988, Cooper
became the switch tender for the crew that ran the intra-plant locomotive, which
transported raw materials for ammunition as well as the finished product. The train
crew consisted of three workers: a locomotive engineer, a conductor, and a switch
tender, of class A, B, and C, respectively. When one of the three members of the train
crew was missing, the other two would fill in as required. Cooper was promoted to the
position of railroad operator A, locomotive engineer, in 1992. In this position she was
primarily responsible for operation of the locomotive. Although this job would appear
to entail a high level of risk, Cooper had no contact with the ammunition, and she
testified regarding the stringent safety measures that minimized the risk. Cooper
successfully performed this job, as she had performed her other positions.
During the fall of 1996, Cooper’s depression was exacerbated by various
personal problems unrelated to her job. She took a series of leaves of absence under
the advice of her physician, Dr. Keith Morris, and her counselor, social worker Nancy
Peltz. On November 11, 1996, Cooper’s health care providers cleared her to return to
work, whereupon she reported to Olin’s medical department, which reviews, prior to
the employee’s return to work, the situation of each employee who has taken time off
work. Because Olin’s medical director, Dr. John Olmstead, was not in the plant’s
medical department that week, a nurse told Cooper to return on November 18, when
Dr. Olmstead would be available.
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When Cooper reported to work on November 18, Dr. Olmstead told her that
despite the clearance from Dr. Morris and Peltz, she would not be able to operate the
locomotive until he was confident that she could safely drive the train, given her
condition and medication. Dr. Olmstead said that he would contact her care providers
and told Cooper to speak with him again on November 21. In the meantime, Cooper
worked at the plant answering phones in the office and working in the scale house as
necessary. She received the pay and benefits of her locomotive job and retained her
job title. On November 21, Cooper contacted Dr. Olmstead, only to learn that he had
not yet spoken with her doctors.
While Cooper was working in the office, several of her co-workers chatted with
her and asked why she was not driving the train, which Cooper found to be humiliating
and which, together with Dr. Olmstead’s continued refusal to allow her to operate the
locomotive, she believes caused a relapse of her depression. A series of doctor visits
and leaves of absence ensued.
In a December 11, 1996, letter, Dr. Morris released Cooper to return to her
position as a locomotive engineer without restriction on the following Monday,
December 16, 1996. Peltz wrote a similar statement. On December 12,1 Cooper
reported to Olin’s medical department, presenting both of these statements and seeking
clearance to return to her position of locomotive engineer. Dr. Olmstead again
prohibited Cooper’s return to operating the locomotive. He stated that he might want
her to contact a psychiatric specialist and then sent her home until December 18. On
that date, Cooper was told that she could attend a plant-wide safety day on December
19, but was otherwise not to report to work until after the plant’s holiday shutdown,
which occurred from December 20, 1996, through January 5, 1997. When the plant
reopened on January 6, Cooper, still laboring under restriction, filled in at the plant’s
1
Olin operated the plant with a workweek of ten hours per day, four days per
week, so Thursday, December 12, 1996, was the final day of that workweek.
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office, as she had done in November, which she described as “sit[ting] there useless .
. . . ten hours a day sitting in that chair and just maybe answer[ing] the phone half a
dozen times.” Cooper reported to work for the last time on January 7, 1997. She
subsequently took vacation days and then was taken off work by Dr. Morris because
of another relapse of her depression.
On January 9, 1997, Dr. Olmstead wrote “Permanent Restriction” on Cooper’s
medical file. He later stated that the classification of Cooper’s restrictions as
permanent was based on Olin policy that required such a classification to be made
when an employee has been on leave or restricted for a certain period of time. He told
Cooper that he would allow her to operate the locomotive in the future if she could get
her “depression under control.” Cooper called Dr. Olmstead in mid-January and was
told by him that Olin would find her another job at the plant but that she would not be
allowed to operate the locomotive. From January of 1997 through the spring, Cooper
and Dr. Olmstead communicated periodically, but Dr. Olmstead did not lift the
restriction, Cooper did not return to work, and Dr. Morris continuously certified that
Cooper was unable to work. Cooper went on long-term disability leave in May of
1997. Dr. Olmstead did not speak with either of Cooper’s health care providers until
March of 1997.
Although Cooper suffered from depression during the relevant time periods, she
remained generally functional. Cooper lives alone on a 20-acre plot in a rural area.
She stated in her deposition that in recent years she has had up to nine horses and ten
dogs at one time and that she generally takes care of her twenty acres of land and her
animals herself. Her activities include operating a bulldozer/excavator and a tractor,
fixing fences, feeding and grooming the animals, and running necessary errands. She
has accepted help from her brother for rebuilding fences and for mowing the land. In
a November 1999 affidavit, Cooper stated that during an episode of depression she
does the minimum necessary for survival. She also stated that her depression results
in a general lack of energy and profound fatigue. “Even with medication,” the affidavit
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reports, “my depression had a negative impact on my ability to care for myself and my
property.”
The district court determined that Cooper had failed to show a genuine issue of
material fact on her claims. On her ADA claims, the court found that she failed to
make out a prima facie case because she did not show that she is disabled, that she can
perform the essential functions of her job, or that she suffered an adverse employment
action. The court also rejected her FMLA claim.
We review the district court's grant of summary judgment de novo. Henerey v.
City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is proper
if the evidence, viewed in the light most favorable to the nonmoving party,
demonstrates that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).
II.
A. ADA
The ADA affords protection from discrimination to any “qualified individual
with a disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of
discrimination under the ADA, Cooper must show (1) that she has a disability within
the meaning of the ADA, (2) that she is qualified to perform the essential functions of
her job, with or without reasonable accommodation, and (3) that she suffered an
adverse employment action because of her disability. Kiel v. Select Artificials, Inc.,
169 F.3d 1131, 1135 (8th Cir. 1999) (en banc). The proof necessary for discrimination
cases is flexible and varies with the specific facts of each case. Young v. Warner-
Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998).
Under the ADA, disability is defined as: “(A) a physical or mental impairment
that substantially limits one or more of the major life activities of such individual; (B)
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a record of such impairment; or (C) being regarded as having such an impairment.” 42
U.S.C. § 12102(2). “[W]hether a person has a disability under the ADA is an
individualized inquiry.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999).
It is undisputed that Cooper suffers from a mental impairment.
According to the regulations that guide the interpretation of the ADA, an
impairment is “substantially limiting” if it renders an individual unable to perform a
major life activity that the average person in the general population can perform, or if
it significantly restricts the condition, manner, or duration under which an individual
can perform such an activity compared to the general population. 29 C.F.R. §
1630.2(j)(1)(i)-(ii). Major life activities include caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working, 29 C.F.R.
§ 1630.2(i), as well as sitting, standing, lifting, and reaching. Fjellestad v. Pizza Hut
of America, Inc., 188 F.3d 944, 948 (8th Cir. 1999). Several factors are considered in
determining whether a person is substantially limited in a major life activity: (1) the
nature and severity of the impairment; (2) its duration or anticipated duration; and (3)
its long-term impact. 29 C.F.R. § 1630.2(j)(2)(i)-(iii). When determining whether an
individual is substantially limited in a major life activity, we must take into account
mitigating measures such as medication and assisting devices. Sutton, 527 U.S. at 482.
Cooper argues that she is disabled within the meaning of the ADA because (1)
her depression substantially limits her in the life activity of caring for herself or, in the
alternative, (2) Olin regarded her as impaired in the major life activity of working.
Cooper contends that her ability to care for herself is significantly limited in comparison
to the general population, noting that during periods of exacerbated depression she does
the minimum necessary for survival. She also notes that even on medication, her
“affect is depressed generally,” she cries more than the general population, and she
suffers from fatigue. Olin argues in response that these arguments are based primarily
on Cooper’s November 1999 affidavit, which contradicts her sworn deposition
testimony and thus should not be considered for the purposes of summary judgment,
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and that even if the affidavit is considered, Cooper has failed to create a genuine fact
issue on her ability to care for herself.
Viewing the facts, including those in the affidavit, in the light most favorable to
Cooper, we do not believe that she has presented evidence that shows a material issue
of fact on actual disability. Cooper has suffered from depression for more than thirty
years, during which she also worked and had raised a family. Her doctors imposed no
restrictions when they released her to return to work. Cooper generally takes care of
her own finances and operates large machinery. Even during the periods when her
depression is most severe, Cooper lives alone and successfully cares for her horses,
pets, and farmland. Cooper has presented no evidence that she has substantial
difficulty living independently, that she requires help with caring for herself--for
example, when she deals with matters of personal care, cooking meals, or taking care
of finances--or that she has been substantially limited in her ability to care for her
animals and her home. She has not shown that her impairment causes a substantial
limitation when compared to the general population. See Cody v. CIGNA Healthcare
of St. Louis, Inc., 139 F.3d 595, 598 (8th Cir. 1998) (difficulties in life that do not
hinder performance of required tasks not substantial limitation). We conclude,
therefore, that her description of her impairment as causing a “negative impact” is not
sufficient to allow an inference of a substantial limitation. See Weber v. Strippit, Inc.,
186 F.3d 907, 914 (8th Cir. 1999) (describing moderate limitation as insufficient), cert.
denied, 120 S. Ct. 794 (2000).
Cooper also contends that she is actually and substantially limited in the life
activity of social interaction. Assuming, without deciding, that interacting socially is
a major life activity, we note that although Cooper stated that she “generally avoided
speaking to anyone on the phone or socially,” she also testified that she has been
married twice; that she has regular contact with family members, including her
daughter; that she speaks often with her niece; that she visits and chats with friends;
and that she talks with people when she runs errands. These facts preclude a finding
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that Cooper suffers from a substantial limitation on social interaction. Accordingly, the
district court did not err in holding that Cooper is not actually disabled within the
meaning of the ADA.
Cooper next argues that Dr. Olmstead, and therefore Olin, regarded her as
substantially limited in the life activity of working and thus disabled within the meaning
of the ADA. See 42 U.S.C. § 12102(2)(C). To fall within this statutory definition, an
individual must show that “(1) a covered entity mistakenly believes that a person has
a physical impairment that substantially limits one or more major life activities, or (2)
a covered entity mistakenly believes that an actual, nonlimiting impairment substantially
limits one or more major life activities.” Sutton, 527 U.S. at 489.
To be regarded as substantially limited in the life activity of working, a plaintiff
must be regarded as “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.” 29 C.F.R. § 1630.2(j)(3)(i); Murphy
v. United Parcel Serv., Inc., 527 U.S. 516, 523 (1999) (applying section 1630.2(j)(3)
factors to “regarded as” claim). Inability to perform one particular job does not
constitute a substantial limitation on working. Id. A plaintiff must show that because
of her impairment she has suffered a significant reduction in meaningful employment
opportunities. Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996). Factors
to be considered in determining whether a plaintiff is restricted from a class of jobs
include the person’s expertise, background, and job expectations. Id. at 487; 29 C.F.R.
§ 1630.2(j)(3)(ii); Taylor v. Nimock’s Oil Co., 214 F.3d 957, 960-61 (8th Cir. 2000)
(discussing factors such as geographical area, number of hours worked, and whether
restrictions were temporary).
Cooper points to Dr. Olmstead’s refusal to return her to operating the
locomotive, his comments about her depression, and the restrictions he placed on her
as evidence that he considered her to be disabled. She argues that every job that she
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has held for the past thirty years was at the plant and involved either dealing with the
train or explosives or both and that Dr. Olmstead’s comments indicated that he viewed
her as precluded from the broad class of jobs that she has the skills, training, and
experience to perform.
Although Dr. Olmstead restricted Cooper from operating the locomotive, he also
stated that the company would find another job for Cooper at the plant. Cooper had
been part of the train crew for only five or six of the many years she had spent at the
plant. It cannot be concluded from these facts that Dr. Olmstead considered Cooper
to be completely precluded from working with explosives generally or from the broad
range of jobs involving Cooper’s engineering expertise outside of those involving
specifically transporting explosives at the plant. See Murphy, 527 U.S. at 524-25(holding that preclusion from mechanic job that requires commercial motor vehicle
license not sufficient to show substantial limitation). Dr. Olmstead’s conclusion that
Cooper was precluded from her particular locomotive job is not sufficient to indicate
that he considered her to be disabled in the activity of working. See id. Moreover, Dr.
Olmstead stated several times that he considered Cooper’s restrictions to be only
temporary while he sought clarification of her condition. Accordingly, we conclude
that Cooper has presented insufficient evidence to show a fact issue on whether Olin
regarded her as disabled.
B. FMLA
“[A] desire to promote job security and stability in workplace relationships was
central to Congress’s decision to pass the FMLA.” Stekloff v. St. John’s Mercy Health
Sys., 218 F.3d 858, 861 (8th Cir. 2000). Under FMLA, eligible employees are entitled
to take leave from work for certain family or medical reasons, including a “serious
health condition that makes the employee unable to perform the functions of the
position of such employee.” 29 U.S.C. § 2612(a)(1); Reynolds v. Phillips & Temro
Indust., Inc., 195 F.3d 411, 413 (8th Cir. 1999). Among other prohibitions, FMLA
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prohibits an employer from interfering with an employee’s exercise of her FMLA
rights. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(b) (“Any violations of the Act or
of these regulations constitute interfering with, restraining, or denying the exercise of
rights provided by the Act.”).
Upon return from FMLA leave, an employee shall be restored to the position she
held when the leave began or to an equivalent position with equivalent benefits, pay,
and other terms and conditions of employment. 29 U.S.C. § 2614;2 Reynolds, 195 F.3d
at 414. Section 2614(a)(4) provides that “[a]s a condition of restoration . . . the
employer may have a uniformly applied practice or policy that requires each such
employee to receive certification from the health care provider of the employee that the
employee is able to resume work . . . .” 29 U.S.C. § 2614(a)(4). Thus, in certain
circumstances, an employee may be required to obtain a certification from her health
care provider that states that she can return to work. Such a certification “need only
be a simple statement of an employee’s ability to return to work.” 29 C.F.R. §
825.310(c). The proper elements of a restoration certification, therefore, differ
somewhat from the certification of a serious health condition under 29 U.S.C. § 2613.
Although a health care provider employed by the employer may, with the employee’s
permission, contact the employee’s care provider for clarification of the restoration
2
(a) Restoration to position
(1) In general
Except as provided in subsection (b) of this section [providing for highly
compensated employees], any eligible employee who takes leave under section
2612 of this title for the intended purpose of the leave shall be entitled, on return
from such leave–
(A) to be restored by the employer to the position of
employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of employment.
29 U.S.C. § 2614(a).
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certification, “the employer may not delay the employee’s return to work while
contact” is being made. Id.The district court determined that Cooper’s depression qualified as a “serious
health condition” under FMLA. The court then concluded that Cooper had failed to
raise a genuine issue of material fact on whether she was returned to the same or an
equivalent position, because she was not removed from her position nor was her
position changed, aside from the restriction on operating the locomotive. The court
then further stated that Olin’s refusal to allow her immediately to return to operating
the locomotive was not a violation of FMLA because Olin had a duty to inquire and
determine Cooper’s fitness to resume her duties.
Cooper does not dispute that she continued to retain her job title, classification,
pay, and benefits when she returned to work at Olin. Cooper contends that because the
duties and functions of her office assignment were so much different from those of a
locomotive engineer, she was not reinstated to the same position within the meaning
of FMLA. She also argues that to any extent that an inquiry into her fitness for duty
is permitted, it never occurred. Olin argues that it did return Cooper to her job within
the meaning of FMLA because the pay and benefits were the same and that it could
properly restrict her duties while evaluating her fitness for duty.
The first question, then, is whether Cooper’s return to work with the title and
wages of a locomotive engineer but the job duties of an office assistant constituted
restoration to the position of employment she held when she took leave, see 29 U.S.C.
§ 2614(a)(1)(A). In Stekloff, in which we determined that an employee could bring a
FMLA claim because of her inability to perform her particular job, we pointed out that
the FMLA inquiry focuses on the employee’s specific job and its duties, not an overall
inability to work. 218 F.3d at 861. To be protected under FMLA when taking leave
for the employee’s own health condition, an employee must show that she is “unable
to perform the functions of [her] position,” 29 U.S.C. § 2612(a)(1)(D), which is defined
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as either unable to work at all or unable to perform any one of the essential functions
of the employee’s position. See Stekloff, 218 F.3d at 862. Additionally, section
2614(a)(1)(B)--restoring the employee to an equivalent position--requires both that the
new position come with equivalent benefits and terms and that it be an “equivalent
position,” indicating that the duties and functions of the job, as well as the pay, terms,
and benefits, are to be considered. 29 U.S.C. § 2614(a)(1)(B); see also 29 C.F.R. §
825.215. Accordingly, the restoration of salary, title, and benefits does not necessarily
constitute restoration to the same position within the meaning of section 2614(a)(1)(A)
when the job duties and essential functions of the newly assigned position are
materially different from those of the employee’s pre-leave position.
Regarding the question of fitness for duty, Olin does not dispute that in
November and December of 1996, and in January of 1997,3 Cooper reported to Olin’s
medical department with releases from her health care providers, Dr. Morris and Peltz,
that unambiguously stated that she could return to work without restriction. Indeed, Dr.
Morris’s December 11 letter notes that Cooper’s position was that of a locomotive
engineer. At this point, Olin had a right, with Cooper’s permission, to seek clarification
from her health care providers about these certification statements, which may have,
in essence, rebutted the certification. See 29 C.F.R. § 825.310(c). For whatever
reason, whether it was the result of a failure of communication or of bureaucratic
bungling, Olin did not follow through and obtain such clarification. In the meantime,
Cooper was entitled to be restored to her position or to an equivalent position.
Inasmuch as Cooper was not returned to her position, on remand the fact-finder must
determine whether Cooper’s office assignment was an equivalent position within the
meaning of FMLA. “Equivalent” under FMLA means “that which is substantially
equal or similar, not necessarily identical or exactly the same. The employer may take
into account the employee’s physical capabilities in determining the equivalent work
3
In its brief, Olin states in a footnote that Cooper’s FMLA eligibility expired on
December 22, 1996. We express no opinion on this assertion.
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and compensation involved.” Watkins v. J & S Oil Co., Inc., 164 F.3d 55, 59 (1st Cir.
1998); see also 29 C.F.R. § 825.215(a) (“An equivalent position is one that is virtually
identical to the employee’s former position in terms of pay, benefits and working
conditions, including privileges, perquisites and status. It must involve the same or
substantially similar duties and responsibilities, which must entail substantially
equivalent skill, effort, responsibility, and authority.”).
The summary judgment dismissing Cooper’s ADA claims is affirmed. The grant
of summary judgment dismissing Cooper’s FMLA claim is reversed, and the case is
remanded to the district court for further proceedings.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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