Petition for Writ of Certiorari — Oregon Arena Corp. v. Lee

Supreme Court brief2002

Ask Donna

What actually matters in this document.

Text

ay FILEO

0 11488 APR -4 2002

No. OFFICE OF THE CLERK

In the

Supreme Court of the United States

TERRY R. Boerst,

Petitioner.

GENERAL MILLS OPERATIONS, INC..,

Respondent.

On PETITION For Writ OF CERTIORARI

To Tue Unitrep States Court Or APPEALS

For THe Sixtu# Circuit

PETITION FOR WRIT OF CERTIORARI

FRANCIS J. LANDRY

Counsel of Record

WASSERMAN, BRYAN, LANDRY

& Hono_p, LLP

300 INNs OF CouRT BUILDING

405 NorTH Huron

ToLepo, OH 43604

(419) 243-1239

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED

l. Was it error for the Court of Appeals to hold

that concentrating and maintaining stamina were not major life

activities under the Americans With Disabilities Act and that

on the record of this case Petitioner did not demonstrate that

he was disabled because his ability to sleep was not

substantially impaired when uncontroverted medical testimony

substantiated an anxiety disorder seriously affecting

Petitioner’s ability to sleep?

a Was it error for the Court of Appeals to hold

that Petitioner was not substantially limited in the major life

activity of working when in fact an eight hour per day

restriction effectively precluded him from working more that

eight hours per day in any job in the Respondent’s Plant?

3. Was it error for the Court of Appeals to

conclude at the summary judgment stage of proceedings that

Petitioner’s admission that his anxiety disorder and its effect

on his sleeping was somewhat ameliorated by the medication

Zoloft precluded the court from finding that petitioner was

disabled with the meaning of the Americans with Disabilities

Act when in fact uncontroverted medical evidence including

respondent’s independent medical examiner noted that the

petitioner’s condition was ongoing and permanent during the

pertinent time period and when the Court of Appeals ignored

petitioner’s explanatory affidavit?

a Was it error for the Court of Appeals to conclude

that petitioner was not disabled within the meaning of the

Americans with Disabilities Act without giving consideration to

petitioner’s alternative contentions that he fell within statutory

protection because of his record of impairment and/or because of

respondent’s perception of or regarding him as disabled?

PARTIES TO THE PROCEEDING

Terry R. Boerst, Petitioner and Plaintiff-Appellant

below, is an hourly employee who was and is employed by

Respondent. Mr. Boerst has been employed by Respondent

since August of 1971.

Respondent, Defendant-Appellee below, General Mills

Operations, Inc., is a corporation headquartered in

Minneapolis, Minnesota with a plant at all times material

hereto in Toledo, Ohio. The publicly owned parent

corporation is General Mills, Inc. General Mills Operations,

Inc. is a subsidiary of General Mills, Inc.

TABLE OF CONTENTS

I. QUESTIONS PRESENTED FOR REVIEW ..... j

I. PARTIES TO THE PROCEEDINGS ........ ii

il. TABLEOFCONTENTS ............... ill

IV TABLE OF AUTHORITIES ............. Vi

V OPINIONS BELOW .................. I

VI JURISDICTION ..................... l

Vil. STATUTESINVOLVED ............... 2

Vill. STATEMENT OF THECASE............ 2

Statement of Facts .................... 2

Description of Proceedings Below .......... 4

IX. ARGUMENT ....................... 6

A. The Court of Appeals erroneously

concluded that concentrating and

maintaining stamina were not major

life activities under the Americans with

Disabilities Act and erroneously

concluded that Petitioner did not

demonstrate that he was disabled

because his ability to sleep was not

Substantially impaired despite clear

medical evidence in the record of an

anxiety disorder affecting Petitioner’s

ability to sleep .... 2... ee. 6

ili

B. The Court of Appeals erroneously

concluded that Petitioner was not

substantially limited in the major life

activity of working when in fact

Petitioner’s condition affected his

ability to work beyond eight hours in a

day despite whatever job in the plant

Petitioner might have held .......... 9

oh The Court of Appeals erroneously

concluded that Petitioner was not

disabled within the meaning of the

Americans with Disabilities Act

without giving consideration to

Petitioner’s alternative contentions that

he fell within statutory protection

because of Respondent’s perception of

or regarding him as disabled......... 10

X. eee er errr rrr rer re er ee 11

XI. APPENDIX

Appendix A - United States Court of Appeals

for the Sixth Circuit in Terry R. Boerst v.

General Mills Operations, Inc., Case No. 00-

3281, filed on January 15,2002 ........... la

Appendix B - Judgment Entry of the District

Court for the Northern District of Ohio and the

accompanying Memorandum and Order

entered on January 31,2000 ............ 12a

Appendix C - Americans with Disabilities Act,

Rie ER eee ee eee 25a

Appendix D - Ohio Revised Code Sections

4112.02 (A) and 4112.99............... 42a

Appendix E - First Amended Complaint ... . . 44a

Appendix F - Answer of General Mills, Inc. to

First Amended Complaint .............. 6la

Appendix G - Stipulation Order .......... 66a

Appendix H - Medical Records ........... 69a

TABLE OF AUTHORITIES

DECISIONS

United States Supreme Court

Bragdon v. Abbott, 524 U.S. 624 (1998) .......... 6

Communist Party of Indiana v. Whitcomb,

G54 UB. GO8 CIs 6 oh ces ecanecusesenn 5

FTC v. Colgate-Palmolive Co., 380 U. S. 374 (1965) .. 5

Sutton v. United Air Lines, Inc..,

527 U.S. 471, 119 S.C. 2139 (1999) ...-.. 7, 10

Toyota Motor Mfg., Kentucky, Inc. v. Williams,

534 U.S. 184, 122 S.C. 681(2002) ........ 7,9

United States v. Healey, 376 U. S. 75 (1964) ....... 6

Circuit Courts of Appeal

Bartlett v. New York State Board of Law Examiners,

970 F. Supp. 1094, aff'd,156 F. 3d 321

(2d Cir. 1998, vacated, 119 S. Ct. 1999

(reading and writing) (fm.l11) ............. 7

Bercovitch v. Baldwin School, Inc.,

133 F. 3d 141 (Ist Cir. 1998) ............. 7

Gonzales v. National Board of Medical Examiners,

225 F.3d 620 (6th Cir. 2000) ............. 7

Nawrot v. CPC International, n/k/a Bestfoods, Inc.,

yooh | fe, Te »& |: Pee 7

Swanson vs. University of Cincinnati,

268 F.3d 307(6th Cir. 200i) ............. 8

Taylor v. Phoenixville School District,

184 F. 3d 296 (3rd Cir. 1999) ............ 6

Ohio Supreme Court

Plumbers & Steamfitters Joint Apprenticeship Comm. v.

Ohio Civil Rights Commission,

421 N.E.2d 128 (Ohio 1981) ............. 5

STATUTES

Ohio Revised Code

Deetiam GUTR GR IAD . cece cc ccesacececesiaes 2

Ls 6. a ee ie ae Se 2

United States Code -

28 U.S.C. Section TASOCE) 2 ccc ccc tnccesases 2

, fib toe errr r rrr rere ig

28 U.S.C. Sectiom 13967 2... 2. ccc ccc ccncceees 1,5

y Pik toe” LUE. eee eee ee l

, Lik Te ll eee eo 4

ee Ss SE EAD 6 wc hk 6 a 6 0s cen ee es 4

Oe Sriies EE HUD 6 bas ccc ces e ce sesnes

Ga Ee ee ree 10

Code of Federal Regulations

28 C.F.R. Section 36.104 (1999) ............66.. 7

Be Cee OU BOT GD a vc ccc ens a enees ¥

Vill

—

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Sixth Circuit in Terry R. Boerst v. General Mills

Operations, Inc., Case No. 00-3281, filed on January 15,

2002 is unreported and is included in the Appendix at

Appendix A at page la.

The Judgment Entry of the District Court for the

Northern District of Ohio and the accompanying

Memorandum and Order entered on January 31, 2000 in

Terry R. Boerst v. General Mills Operations, Inc. are

unreported and are set forth in the Appendix at Appendix B at

page 12a.

JURISDICTION

The final judgment of the United States Court of

Appeals for the Sixth Circuit affirming the decision of the

United States District Court for the Northern District of Ohio,

Western Division was entered on January 15, 2002. This

decision is unpublished and was not recommended for

publication by the Sixth Circuit. A copy of this decision is

attached hereto as Appendix A at page la. This petition for

writ of certiorari is filed within ninety (90) days from that

date. 28 U.S.C. Section 2101 (c). The jurisdictional basis

for federal jurisdiction in the Court of first instance was

pursuant to The Americans with Disabilities Act, 42 U.S.C.

Sections 12101 et seq. Jurisdiction was invoked pursuant to

28 U.S.C. Section 1331. Petitioner also invoked the District

Court’s Supplemental Jurisdiction pursuant to 28 U.S.C.

Section 1367 for the Fourth Claim for Relief which set forth

a claim of handicap discrimination under Ohio Revised Code

Section 4112.99 as amended.

a ee ee

___ —__ __—__ L———————————————a

The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. Section 1254 (1).

STATUTES INVOLVED

The Statutes involved, the Americans with Disabilities

Act, 42 U.S.C. Sections 12101 et seq., and Ohio Revised

Code Sections 4112.02 (A) and 4112.99 as amended, are set

forth in pertinent part in Appendix C and D at pages 25 a and

42a.

STATEMENT OF THE CASE

Statement of Facts

Petitioner is a long standing hourly employee of the

Respondent, having been hired in August of 1971. Petitioner

worked for Respondent as an hourly forklift operator. The

action involves a medical restriction resulting from

Petitioner’s medically diagnosed and documented conditions

of panic disorder, anxiety, and depression that prohibited him

from working more than eight (8) hours in a work day.

Petitioner has regularly worked more that forty (40) hours per

week for Respondent, frequently working eight (8) hours per

day for seven (7) days per week. Medical records from

Petitioner’s primary care physician in the record indicate that

the doctor first suggested this maximum eight hour workday

in July 30, 1996 for anxiety attacks arising out of job stress.

Respondent honored this medical restriction until May 14,

1997, accommodating Petitioner’s request to work no more

than eight (8) hours in a single day. For a period of

approximately six months commencing May 14, 1997,

Respondent refused to accommodate Petitioner’s request for

a daily schedule of no more that eight (8) hours per day. On

or about November 10, 1997, Respondent resumed its

WA ab te caries pisos

accommodation of Petitioner’s request, and has continued to

do so to the present time.

Throughout the period of time at issue, i.e., May 14, -

1997 through November 10, 1997, Petitioner put Respondent

on notice of the nature and severity of his mental impairments

through numerous reports and medical records if his primary

care physician, his treating psychologist, and a clinical

therapist. Moreover, these findings were corroborated by the

findings in an independent psychiatric exam performed at the

request of the Respondent in October of 1997.

In his deposition, Petitioner did state that the

medication Zoloft did relieve his symptoms somewhat.

However, Zoloft was not prescribed until midway through the

period at issue and the contemporaneous psychiatric records

at the time, reference continued sleep and anxiety problems

into late October of 1997, after Zoloft was prescribed.

Petitioner’s psychiatrist also noted in September of 1997 that

his patient suffered from panic disorder and depression which

is permanent. The independent medical examiner also

concluded in late October of 1997 that Petitioner’s problems

affected his sleeping and that symptoms were increasing over

the last 6-12 months.

The record is replete with medical evidence from

Petitioner’s treating primary care physician, his psychiatrist,

and a clinical therapist whom Petitioner was referred to by his

primary care physician. The clinical therapist opined in late

June of 1997 that Petitioner suffered from anxiety and anxiety

attacks, difficulty sleeping, poor concentration and that these

symptoms appeared to be causing significant distress for

Petitioner at work and outside of work. Petitioner’s primary

care physician and psychiatrist both concluded that his

condition was permanent and that he should be limited to

eight hours per work daily. The office notes of Petitioner’s

treating psychiatrist during the critical period noted in

pertinent part significant sleep disturbance and poor

concentration on August 5, 1997, “not sleeping” on August

12, 1997, “still not sleeping...sleep--go to bed 11-11:30--

doesn’t go to sleep until 4"...mind racing...passed out twice

at work in past...” on August 19, 1997, “not sleeping well”

on September 12, 1997, “sleep irregular” on October 8,

1997, and “only get 2-4 hours (of sleep)” on October 21,

1997. The IME physician also noted that Petitioner continued

to experience difficulty sleeping, only 2-4 hour per night, a

reduced ability to concentrate, and fluctuating sleep. The

IME evaluation was conducted on October 20, 1997, near the

end of the six month period. The IME physician noted that at

date, Petitioner continued to report significant symptoms. See

generally Appendix H at pages 69a - 75a.

Description of the Proceedings Below

Petitioner originally filed this action in the United

States District Court for the Northern District of Ohio

Western Division. Petitioner originally brought a claim

against Respondent for an alleged breach of the labor contract

under Section 301 of the Labor Management Relations Act,

29 U.S.C. Section 185(a). Upon issuance of a right to sue

letter by the Equal Employment Opportunity Commission,

Petitioner filed an amended complaint adding claims under the

Americans with Disabilities Act, 41 U.S.C. Sections 12101,

and later stipulated to a dismissal of the labor contract action

and dismissed the local and international unions as parties

defendant. As the case proceeded to summary judgment in

the District Court, then, Petitioner proceeded only on an

Americans with Disabilities Act claim and Ohio law claims of

handicap discrimination. See Appendix E and Appendix G at

pages 44a and 66a. Accordingly, jurisdiction of Petitioner’s

action in the District Court was based upon Federal Question

Jurisdiction under 28 U.S.C. Section 1331. Jurisdiction of

the supplemental Ohio law claim was based upon 28 U.S.C.

Section 1367. a

On January 31, 2000, the District Court in its

Memorandum and Order, granted summary judgment to

Respondent in all respects. The District Court reasoned that

a reasonable jury could not find that Petitioner was

significantly limited in the major life activity of working given

that his condition was alleviated by medication. The District

Court further reasoned that Petitioner’s assertions that he was

substantially limited in the major life activities of sleeping,

concentrating, and maintaining stamina are not substantiated

in the record of the case.

On January 15, 2002, the United States Court of

Appeals for the Sixth Circuit affirmed the District Court in an

unpublished opinion. The Sixth Circuit concluded that

sleeping and working are major life activities under the ADA,

but concentrating and maintaining stamina are not. The court

held that the limitations that Petitioner stated were substantial

limitations under the ADA were not substantial at all and

noted that Petitioner conceded that the medication Zoloft

alleviated the infirmities about which he complained. The

Appellate Court applied its ADA analysis equally to

Petitioner’s Ohio law claim under Plumbers & Steamfitters

Joint Apprenticeship Comm. v. Ohio Civi! Rights Commission,

421 N.E.2d 128, 131, (Ohio 1981).

Petitioner Terry R. Boerst has duly filed his petition

for writ of certiorari within ninety days of the entry of this

ruling. Communist Party of Indiana v. Whitcomb, 414 US.

441, 445-446 (1974); FTC v. Colgate-Palmolive Co., 380 U.

S. 374, 384 (1965); United States v. Healey, 376 U.S. 75,

77-78:80 (1964).

ARGUMENT 7

A. The Court of Appeals erroneously concluded that

concentrating and maintaining stamina were not

major life activities under the Americans with

Disabilities Act and erroneously concluded that

Petitioner did not demonstrate that he was disabled

because his ability to sleep was not substantially

impaired despite clear medical evidence in the

record of an anxiety disorder affecting Petitioner’s

ability to sleep.

The questions herein reveal confusion among the

Circuits with respect to what constitutes a major life activity

under the Americans with Disabilities Act. In the within

action, Petitioner contended that his anxiety disorder

substantially limited him in the major life activities of

working, sleeping, concentrating, and maintaining stamina.

In the within action, the Sixth Circuit concluded that

concentrating and maintaining stamina were not major life

activities. Although the Court cited this Court’s previous

opinion in Bragdon v. Abbott, 524 U.S. 624 (1998), for the

proposition that Petitioner had the duty to show (1) that his

impairments affect a major life activity, as the ADA defines

a major life activity; and (2) the effect of his impairments is

a substantial limitation, as the ADA defines a substantial

limitation, it then concluded based on its own past precedent,

that thinking and maintaining stamina were not major life

activities within the meaning of the ADA. In Taylor v.

Phoenixville School District, 184 F. 3d 296 (3rd Cir. 1999),

the Third Circuit concluded that thinking was in fact a major

isha aiealehhliial acia ob ere a Se

life activity. See also, Nawrot v. CPC International, n/k/a

Bestfoods, Inc., 277 F.3d 896 (7th Cir. 2002). Moreover, in

Gonzales v. National Board of Medical Examiners, 225 F.3d

620 (6th Cir. 2000), the Sixth Circuit itself concluded that

reading was a major life activity. The ADA does not define

the terms “physical or mental impairment,” “substantially

limits,” or “major life activities,” and no agency has been

given authority to issue regulations implementing the

generally applicable provisions of the ADA. Sutton v. United

Air Lines, Inc., 527 U.S. 471, 119 S.C. 2139, 2145 (1999).

The Department of Justice, which Congress assigned to write

the regulations for Subchapter III of the ADA, defines

“physical or mental impairments” as including “specific

learning disabilities.” 28 C.F.R. Section 36.104 (1999).

Moreover, the Department of Justice’s regulations further

define “major life activities” as including “walking, seeing,

hearing, speaking, breathing, learning, and working.”

Id., Section 36.104(2). This list is merely illustrative and not

exhaustive. Given the illustrative nature of major life~

activities and the willingness of the Sixth Circuit and other

courts to consider learning and reading as major life activities,

the cognitive act of thinking should not be excluded. See,

e.g., Bartlett v. New York State Board of Law Examiners, 970

F. Supp. 1094, aff'd, 156 F. 3d 321 (2d Cir. 1998, vacated,

119 S. Ct. 1999 (reading and writing) (fn. 11); Bercovitch v.

Baldwin School, Inc., 133 F. 3d 141, 155 (1st Cir. 1998).

Moreover, the Petitioner’s claim that his anxiety disorder

affected his ability to maintain stamina should also be

included as a major life activity. This Court has noted that the

term “major” in the phrase “major life activities” means

important. This Court has also concluded that major life

activities refer to those activities that are of central importance

to daily life. Toyota Motor Mfg., Kentucky, Inc. v. Williams,

534 U.S. 184, 122 S.C. 681(2002). Petitioner submits that the

acts of concentration and stamina cut across all aspects of

daily life and should have been considered as major life

activities and analyzed accordingly to determine if Petitioner’s

impairment of an anxiety disorder significantly limited those

activities. Because of the case by case nature of claims

brought under the Americans with Disabilities Act, clear

guidance on the scope of major life activities covered under

this statute would provide much needed guidance for counsel

and courts.

In the case at bar, the Sixth Circuit also concluded that

working and sleeping were in fact major life activities.

However, based on the record in the within case, the Sixth

Circuit has erroneously concluded that Petitioner did not

demonstrate substantial impairment to his sleeping. The Sixth

Circuit appears to have relied on its prior precedent in

Swanson vs. University of Cincinnati, 268 F.3d 307, 316 (6th

Cir. 2001). In that action the Court concluded that less than

five hours of sleep was not optional, but not significantly

restricted in comparison to the average person in the general

population. There the Court noted that when the Plaintiff

took Paxil and Prozac, the quality of his sleep improved. In

the within case, by contrast, a six month period was at issue_

Serious sleep problems are documented during this period

despite medication which was not prescribed until midway

through this period. It is submitted that at the summary

judgment stage, Petitioner at least presented a genuine issue

of material fact regarding the effect of the anxiety disorder on

his sleeping.

In the within action, Petitioner contends that he was

substantially limited in the major life activity of sleeping. It

is submitted that the Sixth Circuit’s denial of Petitioner’s

contentions that he was substantially limited in the major life

activity of sleeping, in the face of Petitioner’s medical

evidence of a long standing and permanent anxiety disorder

and the involvement of a psychiatrist during the period in

contention, clearly demonstrates a substantial limitation. In

Toyota Manufacturing, Kentucky, Inc. v. Williams, 534

U.S.184, 122 S.C. 681 (2002), this Court warned that the

word “substantial” clearly precludes impairments that

interfere in only a minor way with the central activities of

daily life. Moreover, the impairment’s impact must also be

permanent or long term. On the record in this case, Petitioner

has demonstrated a long term and likely permanent condition

with a severe impact on sleep activities noted in medical

records.

B. The Court of Appeals erroneously concluded that

Petitioner was not substantially limited in the major

life activity of working when in fact Petitioner’s

condition affected his ability to work beyond eight

hours in a day despite whatever job in the plant

Petitioner might have held.

The Court of Appeals held in part that Petitioner could

not show that he was substantially limited in the major life

activity of working unless he could show that he was

significantly restricted in his ability to perform either a class

of jobs or a broad range of jobs in various classes as

compared to the average person with comparable training,

skills, and abilities. The Court of Appeals noted that the

inability to perform a single, particular job does not constitute

a substantial limitation in the major life activity of working.

Petitioner contends that his disabling condition affected every

job in the Respondent’s plant. Depositions in the record

reveal that-Respondent considered that an eight (8) hour per

day limitation prevented an employee from performing, not

only the forklift job, but also every other job in the plant. At

the time at issue, Petitioner had some twenty-six (26) years of

seniority with the Respondent and had worked in several other

job capacities. The record shows that Respondent did not

consider placing Petitioner in any other job because his daily

hour restriction prevented him from working any job in the

plant. Thus, Petitioner’s impairment did not affect an isolated

job. Rather, Petitioner had no other job in the plant to seek

out in which he could have been free of the above described

impairment.

c. The Court of Appeals erroneously concluded that

Petitioner was not disabled within the meaning of

the Americans with Disabilities Act without giving

consideration to Petitioner’s alternative contentions

that he fell within statutory protection because of

Respondent’s perception of or regarding him as

disabled.

The Court of Appeals in the within case found that

Petitioner was not substantially limited in the major life

activities of sleeping and working and, hence, found him not

be within the coverage of the Americans with Disabilities Act.

The Court of Appeals, in making its analysis of coverage,

failed to consider whether Petitioner was perceived of or

regarded as disabled by Respondent. Under the Americans

with Disabilities Act, “disability” includes “being regarded as

having” an impairment that substantially limits one or more

of the major life activities. 42 U.S.C. Section 12101(C).

This Court has stated that a person is regarded as disabled

within the meaning of the ADA if “(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 a person’s actual,

nonlimiting impairment substantially limits one or more major

life activities.” Sutton v. United Airlines, Inc., 119 S. Ct.

2139, 2149-50 (1999). The Respondent here had changed its

policies to require ADA coverage in order obtain permanent

AAS Wat estiaas 2S WY. cies ne Vite Wana

restrictions. The Respondent referred Petitioner to its ADA

administrator and treated Petitioner as if he were covered

under the ADA. Then, Respondent denied the restriction

during the six month period. In the within case, it is clear

that throughout the six month period during which Petitioner

was off on leave because he was not accommodated in his

request to work only eight hours in a single day, he

continuously supplied Respondent with numerous reports and

medical records from his treating physician, his psychiatrist,

and a clinical therapist. With knowledge of these reports, the

Respondent referred Petitioner to an independent psychiatric

evaluation the results of which corroborated the diagnoses of

Petitioner’s medical providers. The independent psychiatrist

concluded that the eight hour per day restriction be once again

granted and that it was likely that the work restrictions would

be permanent, and Petitioner continued to report significant

symptoms. Given the records before the Respondent and its

subsequent reinstatement of Petitioner’s eight hour per day

limitation, it is submitted that even if Petitioner did not suffer

from a disability within the meaning of the ADA, he was

regarded by Respondent as having a disabling condition

within the meaning of the act. The Court of Appeals,

therefore, had an obligation to analyze Petitioner’s claim in

light of the regarded as prong of ADA coverage, which it

failed to do.

CONCLUSION

For reasons set forth in this Petition for Writ of

Certiorari, Petitioner Boerst respectfully requests that a writ

issue as prayed for in order to review the aforementioned

Sixth Circuit Opinion set forth in Appendix A.

— eee

Respectfully submitted,

WASSERMAN, BRYAN, LANDRY

& HONOLD, LLP

Francis J. Landry

Counsel of Record

Counsel for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 00-3281

January 15, 2002, Filed

TERRY R. BOERST,

Plaintiff-Appellant,

GENERAL MILLS OPERATIONS, INC.,

Defendant-Appellee.

Nee ee eee eee ee”

)

On Appeal from the United States District Court

for the Northern District of Ohio

99-07020

Katz

JUDGES:

BEFORE: NELSON and BATCHELDER, Circuit Judges;

FEIKENS *, District Judge.

* The Honorable John Feikens, United States District Court

for the Eastern District of Michigan, sitting by designation.

— —_——_—_—__ EEE

Sixth Circuit Opinion - 01/15/02

OPINION

ALICE M. BATCHELDER, Circuit Judge. The

district court ruled that Terry Boerst ("Boerst") was not

disabled under the Americans With Disabilities Act ("ADA")

and entered summary judgment against him. We conclude that

two of the four activities that Boerst contended qualify as

major life activities under the ADA do not qualify; the

limitations that Boerst said are substantial limitations under

the ADA are not substantial at all; and Boerst conceded that

the medication Zoloft alleviated the infirmities about which he

complained. We will AFFIRM the district court.

FACTS AND PROCEDURAL BACKGROUND

Boerst sued General Mills under the ADA and Ohio's

state-law analogue to the ADA. The gist of Boerst's claim is

that between May 14, 1997, and November 10, 1997,

General Mills denied him a reasonable accommodation and

laid him off because he refused to work more than eight hours

in any one day. Boerst is seeking backpay and prospective

injunctive relief.

Sometime in late 1996 Boerst began complaining that

he was suffering from anxiety, fatigue, difficulty sleeping and

an inability to concentrate. He complained that these problems

were caused by his worrying about having to come into work

early and work more than eight hours a day. He also

complained that these troubles were exacerbated by concerns

that all of this stress might cause him to relapse into

alcoholism.

iA OO eee

Sixth Circuit Opinion - 01/15/02

To remedy Boerst's problems, his doctor

recommended that Boerst work no more than eight hours per

day. For some period of time (the record does not say how

long), General Mills excused Boerst from any overtime and

allowed him to work no more than eight hours per day.

General Mills viewed the overtime restriction as having

lapsed in January 1997, and in May of 1997, General Mills

told Boerst that he would again be required to work overtime.

The company advised Boerst that because his overtime

restriction was not permanent; Boerst needed to (but did not)

have his work restriction renewed by his doctor. Faced with

the prospect of again working more than eight hours a day

and seeing that company officials would not budge, Boerst

went on medical leave on May 14, 1997. Immediately upon

leaving General Mills. Boerst went straight to his doctor, Dr.

Jones.

Dr. Jones gave Boerst a note saying that Boerst should

not work more than eight hours in any one day. Boerst took

this note back to General Mills and gave it to Glenda Simon,

who served as General Mills's administrator for the Family

Medical Leave Act and attendance policy. General Mills

refused to accept Dr. Jones's recommendation that Boerst

work no more than eight hours per day.

Boerst continued to see Dr. Jones about once a week

and Dr. Jones continued to give Boerst notes saying that

Boerst should have to work no more than eight hours per day.

Boerst continued to deliver these notes to General Mills, and

General Mills continued to reject the doctor's suggestion.

Boerst did not return to work until the third week of July

i997, when General Mills put him back on the work

schedule.

Sixth Circuit Opinion - 01/15/02

Things went fine for Boerst for about two weeks,

when General Mills again asked Boerst to work more than

eight hours in a day. Again. Boerst refused; he went on

medical leave at the end of July 1997. Boerst stayed on

medical leave until an independent medical exam ("IME")

was done by Dr. Daniels on October 20, 1997. Dr. Daniels

examined Boerst and concluded that "it is clear that [Boerst]

has developed and [sic] anxiety disorder in response to his

work hours, and his interpretations of it . . . It is my

recommendations [sic] that his work restriction be granted."

The IME report was faxed to General Mills on October 31,

1997. By November 10, 1997, Boerst was back to work,

enjoying his daily overtime restriction and sometimes working

seven days a week. He works at General Mills today and still

enjoys this eight-hour-per-day restriction.

Sometime in August 1997, Boerst began taking the

medication Zoloft to alleviate his anxiety and stress. At his

deposition. Boerst testified that Zoloft had "pretty much

solved all [his] problems." A doctor's report confirms

Zoloft's effect: "Mr. Boerst . . . is currently taking Zoloft

100mg. . . and his prognosis is fair."

While Boerst was on medical leave in the fall of 1997,

he filed a charge of discrimination with the EEOC. In March

1999, after Boerst was back at work, the EEOC issued a right

to sue letter. Boerst then brought this action against General

Mills, claiming that General Mills had violated the collective

bargaining agreement ("CBA") and discriminated against him

in violation of the ADA and Ohio law. He also sued his

national and local unions and alleged that his unions failed to

adequately address a grievance that Boerst filed about his

dispute with General Mills.

ee eee

eS SRD nea cage

Sixth Circuit Opinion - 01/15/02

Boerst filed an affidavit Opposing General Mills's

motion for summary judgment that tried to undo his

deposition testimony about the Mitigating effects of Zoloft:

[BJeginning in mid-1996, anxiety and resulting

loss of sleep and fatigue caused by my

concerns over forced Overtime affected my

pe)

~”

restriction against Overtime in excess of eight

hours per day to safeguard my concentration,

Stamina and attentiveness on the job of forklift

Operator. My Concentration, stamina and

| attentiveness on the job were Particularly

: affected on the days following sleep

disturbances triggered by overtime anxiety.

Sixth Circuit Opinion - 01/15/02

The district court concluded that Boerst's affidavit did

nothing to undermine Boerst's deposition testimony that

Zoloft had pretty much solved all of his problems, and the

court granted General Mills's motion for summary judgment.

The district court held that Boerst had failed to show that he

suffered a substantial limitation on any major life activity. The

court explained that Boerst was not substantially limited in

other major life activities because Zoloft allowed Boerst to

perform his job duties, and an eight-hour-per-day work

restriction cannot establish a disability under the ADA.

Boerst filed a timely notice of appeal. On appeal,

Boerst identifies three impairments: stress, anxiety and

fatigue. He says that these impairments substantially limit four

activities that qualify as major life activities under the ADA:

concentrating, maintaining stamina, sleeping and working. He

contends that the district court erred because genuine issues

of material fact remain about whether his impairments

substantially limit any major life activity.

DISCUSSION

Boerst's pleadings make clear that he proceeds under

42 U.S.C. §12102(2)(A).' Consequently, Boerst must present

evidence from which a factfinder could find that he suffers

from a condition that causes a substantial limitation on some

' Our ADA analysis applies equally to Boerst's Ohio-law

claim. See Plumbers & Steamfitters Joint Apprenticeship Comm. v.

Ohio Civil Rights Comm'n, 66 Ohio St. 2d 192, 421 N.E. 2d 128,

131 (Ohio 1981) (Federal case law applying Title VII is generally

applicable to cases involving Ohio Rev. Code Chapter 4112);

Wooten v. City of Columbus, 91 Ohio App. 3d 326, 632 N.E. 2d

605, 611 (Ohio Ct. App. 1993) (same).

I A i: ii

Sixth Circuit Opinion - 01/15/02

major life activity. See Doren v. Battle Creek Health Sys.

187 F.3d 595, 598 (6th Cir. 1999) (ADA plaintiff must show

"the existence of an impairment that substantially limits a

major life activity."),

Under Doren, Boerst must show that: (1) his

impairments affect a major life activity, as the ADA defines

major life activity; and (2) the effect of his impairments is a

substantial limitation, as the ADA defines substantial

limitation. See Bragdon v. Abbott, 524 U.S. 624, 631, 141 L.

Ed. 2d 540, 118 S. Ct. 2196 (1998). Sleeping and working

are major life activities under the ADA. Concentrating and

maintaining stamina are not. See Doren, 187 F.3d at 597

("Under the Acct, working qualifies as a ‘major life

activity.'"); Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th

Cir. 1999) ("We hold that Sleeping is a major life activity, but

concentration is not.").?

Because neither concentrating nor maintaining stamina

qualify as major life activities under the ADA, only sleeping

and working concern us in this appeal. We must decide

whether the district court correctly concluded that Boerst did

not show that he could carry his burden at trial to prove that

he suffered a substantial limitation on his ability to either

sleep or work.

? See also Linser v. State of Ohio, Dep't of Mental Health,

No. 00-3281, 234 F.3d 1268, 2000 U.S. App. LEXIS 35211, 2000

WL 1529809, at *3 (6th Cir. Oct. 6, 2000); Colwell v. Suffolk

County Police Dep't, 158 F.3d 635, 643 (2nd Cir. 1998) ("Sleep

- . . Is undoubtedly a major life activity[.]").

emcees

Sixth Circuit Opinion - 01/15/02

Boerst cannot show that he is substantially limited in

a major life activity unless he can show either: (1) he cannot

perform a major life activity that an average person can

perform; or (2) his performance of a major life activity is

significantly restricted in the condition, manner, or duration

when compared to an average person. See 29 C.F.R.

§1630.2(j)(1). In determining whether either of these two

showings are made, we ask about the nature and severity of.

the impairment that purports to substantially limit the major

life activity. See 29 C.F.R. §1630.2(j)(2)(i).

Boerst cannot show that he is substantially limited in

the major life activity of working, unless he can show that he

is "significantly restricted in ability to perform either a class

of jobs or a broad range of jobs in various classes as

compared to the average person with 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)(@);

McKay v. Toyota Motor Mfg., USA, Inc., 110 F.3d 369, 372

(6th Cir. 1997).

When determining if an ADA plaintiff suffers a

substantial limitation, we must consider any corrective

measures that the plaintiff has employed. Sutton v. United

Airlines, Inc., 527 U.S. 482, 144 L. Ed. 2d 450, 119 S. Ct.

2139 (1999) ("Looking at the Act as a whole, it is apparent

that if a person is taking measures to correct for, or mitigate, |

a physical or mental impairment, the effects of those

measures--both positive and negative--must be taken into

account when judging whether that person is ‘substantially

limited’ in a major life activity and thus ‘disabled’ under the

Act.") If the corrective measures sufficiently alleviate

“Be

Subeaceel ants:

AAU ee

Sixth Circuit Opinion - 01/15/02

plaintiff's impairment, then the plaintiff is not disabled under

the ADA because the plaintiff's impairment does not rise to

a substantial limitation. 527 U.S. at 482-83. For example, if

the plaintiff suffers from high blood pressure and takes

medication which relieves the high blood pressure to the

extent that the plaintiff no longer suffers a substantial

limitation, the plaintiff is not disabled under the ADA. See

Murphy v. United Parcel Serv., 527 U.S. 516, 521-22, 144

L. Ed. 2d 484, 119 S. Ct. 2133 (1999),

Boerst tries to establish that he suffers a substantial

limitation on his ability to sleep. To that end. Boerst offered

allegations and Supporting evidence which mirror those

offered and rejected in Pack and Linser. For example. Boerst

put in evidence that he could “only get two-four hours" sleep

a night. So did the plaintiff in Pack. Getting between two and

four hours of sleep a night, while inconvenient, simply lacks

the kind of severity we require of an ailment before we will

Say that the ailment qualifies as a substantial limitation under

the ADA. See Linser y. State of Ohio, Dep't of Mental

Health, No. 00-3281, 234 F.3q 1268, 2000 U.S. App. LEXIS

35211, 2000 WL 1529809, at *3. Consequently, we conclude

that so far as the major life activity of Sleeping goes, Boerst

failed to show on summary judgment that he could prove a

substantial limitation. The district court made no error when

it entered summary judgment against Boerst on this point.

Boerst says that he suffers a substantial limitation on

his ability to work because he can work no more than eight

hours a day. Like Boerst's allegation and evidence about

Sleepless nights, this allegation and its supporting evidence

Cannot show a substantial limitation under the ADA. See

Linser, 234 F.3d 1268, 2000 U.S. App. LEXIS 35211, 2000

Sixth Circuit Opinion - 01/15/02

WL 1529809, at *3 ("We are bound by the Sixth Circuit

precedent holding that the inability to work in excess of eight

hours per day does not constitute a disability.") (citing Doren,

187 F.3d at 599). Boerst also does not show that his professed

inability to work more than eight hours a day means that he

is precluded from performing a broad class of jobs. These

~ reasons alone convince us that the district court was quite

correct when it granted summary judgment for General Mills

on this issue. But the district court was correct for another

reason as well.

Moving for summary judgment. General Mills pointed

out that Boerst conceded that since he started taking Zoloft-a

medication to help alleviate stress--and that Zoloft had "pretty

much solved all" of his problems. Boerst counters by

declaring that even after taking Zoloft, he still could sleep no

more than two to four hours per night. But as the district

court pointed out, the affidavits that Boerst submitted

"provide no evidence to dispute the mitigating effects of"

Zoloft. As we have heretofore held, Boerst's claimed sleep

difficulties do not rise to the level of a disability under the

ADA. Boerst's own testimony shows that he suffered no

substantial limitation on his ability to work when Zoloft's

mitigating effects are taken into account. Therefore, under

Sutton and Murphy, we affirm the district court's conclusion

that Boerst has not presented evidence that he is substantially

limited in his ability to work. Moreover, the fact that Boerst

was not taking Zoloft for part of the time relevant to this case

does not suffice to demonstrate that he was under a disability

during that time for purposes of the ADA.

Consequently, we AFFIRM the final summary

judgment order entered against Boerst because Boerst failed

10a

0 abi he

Sixth Circuit Opinion - 01/15/02

DS hehe

to demonstrate on summary judgment his ability to prove at

trial that he is disabled within the meaning of the ADA.

EEA DDN DORA ag te 08

RA ten eb Oh ahs SN eed Agctaenctined, ee Woe ee ee ea)

lla

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:99 CV 7020

[Filed January 31, 2000]

Terry R. Boerst,

Plaintiff,

General Mills Operations, Inc., at al.

Defendant.

Ne Nee eee ee”

JUDGMENT ENTRY

KATZ, J.

For the reasons stated in the Memorandum Opinion

filed contemporaneously with this entry, IT IS HEREBY

ORDERED, ADJUDGED and DECREED that Defendant's

Motion for Summary Judgment (Doc. No. 38) is granted.

/s/

DAVID A. KATZ

UNITED STATES DISTRICT JUDGE

12a

a |

)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:99 CV 7020

[Filed January 31, 2000]

| Terry R. Boerst, )

Plaintiff, )

)

V. )

)

General Mills Operations, Inc., et al., )

Defendant. )

)

MEMORANDUM OPINION

KATZ, J.

This matter is before the Court on Defendant General

Mills' Motion for Summary Judgment, Plaintiffs Opposition,

and Defendant's reply thereto. Jurisdiction of the Court is

pursuant to 28 U.S.C. §1331. For the reasons that follow,

the Court finds Defendant’s Motion is well taken.

BACKGROUND

Terry R. Boerst ("Boerst") is an hourly employee of

General Mills Operation, Inc. ("General Mills ") and has been

employed in that Capacity since 1971. At all times relevant to

this dispute, Boerst’s Position with General Mills was that of

a forklift operator. Plaintiff was diagnosed with stress

13a

District Court Memorandum Opinion - 01/31/00

disorder, anxiety and depression. He obtained a medical

restriction which prohibited him from working more than

eight hours in a work day. It is undisputed that General Mills

honored the medical restriction until May 14, 1997. At that

time, due to General Mills' refusal to accommodate the

medical restriction, Boerst was laid off. On November 10,

1997, General Mills again honored the medical request and

Boerst returned to work and has continued to work under the

medical restriction.

Boerst initiated this suit' against General Mills,

alleging violations under the American With Disabilities Act,

42 U.S.C. §12101 et seq. and Ohio Rev. Code §4112.022.

General Mills moves for summary judgment on the basis that

Plaintiff is not disabled and not entitled to protection under

the statute.

DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

A. Summary Judgment Standard

As an initial matter, the Court sets forth the relative

burdens of the parties once a motion for summary judgment

is made. Summary judgment must be entered "against a party

who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on

' Initially Plaintiff also named as Defendants the American

Federation of Grain Millers and American Federal of Grain

Millers-Local 58 for breach of the collective bargaining agreement

and a breach of the duty of fair representation under the LMRA, 29

U.S.C. §185. Those claims, however, were dismissed on July 30,

1999, with prejudice. (Doc. No. 28.)

l4a

————————————

District Court Memorandum Opinion - 01/31/00

which that party will bear the burden of proof at trial."

Celotex Corp. v. Catrett, 477 U.S, 317. 322 (1986). Of

course, the moving party always bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of "the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any," which it believes

demonstrate the absence of a genuine issue of material fact.

477 U.S. at 323. The burden then shifts to the nonmoving

party who "must set forth specific facts showing that there is

a genuine issue for trial." Anderson v. Liberty Lobby, Inc..,

477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)).

Once the burden of production has so shifted, the party

Opposing summary judgment cannot rest on its pleadings or

merely reassert its previous allegations. It is not sufficient to

"simply show that there is some metaphysical doubt as to the

material facts." Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e)

"requires the nonmoving party to go beyond the [unverified]

pleadings” and present some type of evidentiary material in

support of its position. Celotex Corp., 477 U.S. at 324.

Summary judgment shall be rendered if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c).

B. The American with Disabilities Act

Federal law, as embodied in the Americans With

Disabilities Act ("ADA"), prohibits a covered employer from

15a

District Court Memorandum Opinion - 01/31/00

"discriminat[ing} against a qualified individual with a

disability because of the disability of such individual in regard

to... the hiring, advancement, or discharge of employees...

and other terms, conditions, and privileges of employment."

42 U.S.C. §12112(a)’. A "qualified individual with a

disability" is "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). An employer

cannot discriminate against a qualified employee with a

disability by not making reasonable accommodations, which

accommodations for that employee's known limitations do not

impose an undue hardship on the operation of the employer's

? It is unlawful in Ohio "[flor any employer, because of

the... disability...of any person...to discriminate against that person

with respect to hire, tenure, terms, conditions, or privileges of

employment, or any matter directly or indirectly related to

employment." Ohio Rev. Code §4112.02(A). The Ohio Supreme

Court has held that the coverage of §4112.02(A) is identical to the

coverage of federal law prohibiting discrimination in the

employment context. Thus, evidence sufficient to support a finding

of discrimination under Title VII of the Civil Rights Act of 1964 is

necessary before a violation of §4112.02(A) can be shown.

Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil

Rights Comm'n, 66 Ohio St. 2d 192, 196, 421 N.E.2d 128, 131

(1981); see also Little Forest Medical Ctr. of Akron v. Ohio Ciwl

Rights Comm'n, 61 Ohio St. 3d 607, 609-10, 575 N.E.2d 1164,

1167 (1991), cert. denied, 503 U.S. 906 112 S. Ct. 1263, 117

L.Ed. 2d 491 (1992); El GrandeSteak House v. Ohio Civil Rights

Comm'n, 99 Ohio App. 3d 557, 562, 651 N.E.2d 440, 444 (1994);

Twinsburg City Schools v. Ohio Civil Rights Comm'n. 86 Ohio

App. 3d 527, 529, 621 N.E.2d 591, 593 (1993). Accordingly, the

Court will address Plaintiffs federal law and state law claims

together.

l6a

District Court Memorandum Opinion - 01/31/00

business. 42 U.S.C. §12112(a) & (b)(5)(A).

In order to establish a prima facie case of disability

discrimination in the employment context, a plaintiff must

allege and prove (1) that he is an individual with a disability;

(2) that he is otherwise qualified for the position he seeks or

holds; and (3) that he was excluded from the position under

circumstances that raise a reasonable inference of unlawful

discrimination. See Pesterfield v. Tennessee Valley Auth.,

941 F.2d 437, 441 (6th Cir. 1991) (citing Southeastern

Community College v. Davis, 442 US. 397, 406, 99 S. Ct.

2361, 2367, 60 L. Ed. 2d 980 (1979); Ennis v. National Ass’n

of Business & Educ. Radio., Inc., 53 F.3d 55, 58 (4th Cir.

1995). When the plaintiff has established a prima facie case

of discrimination, the burden shifts to the employer to

articulate a legitimate, non-discriminatory reason for its

decision. McDonell Douglas Corp. v. Green, 411 U.S. 792,

802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). Once

the employer meets its burden, the burden shifts back to the

plaintiff to prove that the legitimate reasons offered by the

employer were not its true reasons, but were a pretext for

discrimination. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207

(1981);see also Betkerur v. Aultman Hosp. Ass'n, 78 F.3d

1079, 1095 (6th Cir. 1996); McDonald v. Union Camp Corp.,

898 F.2d 1155, 1160 (6th Cir. 1990).

1. Is the Plaintiff an Individual With a Disability?

The first question is whether Plaintiff has shown that

he is an individual with a disability; i.e., that he (A) has a

physical or mental impairment that substantially limits one or

more of his major life activities, (B) has a record of such an

17a

District Court Memorandum Opinion - 01/31/00

impairment, or (C) is regarded as having such an impairment.

See 42 U.S.C. §12102(2).

It is clear from the record that Plaintiff had, at all

times pertinent to this suit, an actual physical impairment

within the meaning of the Act. See 29 C.F.R. §1630.2(h)(1).

The parties disagree about whether a reasonable jury could

find that Plaintiff's physical impairment substantially limited

one or more of his major life activities. "Major life

activities" includes functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working. " 29 C.F.R. §1630.2(i).

In determining whether an individual is substantially limited

in a major life activity, the Court considers:

(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(j){2).

The burden is upon a plaintiff to demonstrate the

existence of an impairment that substantially limits a major

life activity as an element of the prima facie case. Doren v.

Battle Creek Health System, 187 F.3d 595 (1999). In this

instance, the Plaintiff asserts that he is substantially limited in

the major life activities of the ability to sleep, concentrate,

maintain stamina and work. There is no dispute that Plaintiff

18a

District Court Memorandum Opinion - 01/31/00

was diagnosed with anxiety disorder in 1996 and has taken the

prescription medication Zoloft continuously since August,

1997. An independent evaluation corroborated the differential

diagnoses and recommended that the work hour restrictions

be continued. Since that time, his anxiety disorder and

depression has been under control contingent upon the

restriction of an 8 hour work day. The Plaintiff testified that

at all times during an eight hour work day he was able to

perfom the essential functions of his position. (Boerst Dep.,

p. 95.)

The Supreme Court in Sutton v. United Air Lines,

Inc., 119 §.Ct. 2139 (1999), considered whether two

candidates, because of their severe myopic condition, were

discriminated against by the airline when their condition was

capable of correction through other_measures:

A person whose physical or mental impaiment

is corrected by medication or other measures

does not have an impairment that presently

"substantially limits" a major life activity. To

be sure, a person whose physical or mental

impaiment is corrected by mitigating measures

still has an impairment, but if the impairment

is corrected it does not "substantially limi[t]"

a major life activity.

See also Murphy v. UPS, 119 S.Ct. 2133 (1999) ( track driver

with high blood pressure who took medication for

hypertension was not substantially limited in any major life

activity under the ADA.

19a

District Court Memorandum Opinion - 01/31/00

In this case, there is no evidence that Plaintiff is

unable to perform his job duties and work an eight hour work

day as long as he takes his medication. His deposition

testimony is that as long as he takes the medication, he has

little if any problems. The affidavit testimony of both

Plaintiff and his wife provide no evidence to dispute the

mitigating effects of the prescribed medication.

Plaintiff argues that the significant nature of his sleep

disturbance, poor concentration and fatigue supports his claim

that he is disabled. In addition, he contends that the medical

evidence all attests to the fact that his condition is permanent

and supports a finding that Plaintiff's major life activities are

"substantially limited." This Court disagrees. While there is

no doubt that Plaintiff suffers from an impairment which

affects those major life activities, a reasonable jury could not

find that he is substantially limited in the major life activity of

working given that his condition is mitigated by medication.

Sutton, supra.

Furthermore, Plaintiff's medical restriction of an eight

hour work day is also insufficient to establish his disability

under the ADA. Without more, courts considering these time

restrictions have found that there was no significant restriction

on the ability to work. Tardie v. Rehabilitation Hosp. Of

Rhode Island, 168 F.3d 538, 541 (1st Cir. 1999) (involving

an employee who was limited to a 40 hour work week); Roth

v. Lutheran General Hosp., 57 F.3d 1446 (7" Cir. 1995)

(involving doctor with a visual impairment which prevented

him from working more than 8 or 10 hours); Rutlin v. Prime

Succession, Inc., 75 F.Supp.2d 735 (W.D. Mich 1999) (40

hour week work restriction insufficient to substantially limit

the major life activity of working); Shpargel v. Stage & Co.,

20a

a at ins

ESB nea

. District Court Memorandum Opinion - 01/31/00

914 F.Supp. 1468, 1474 (E.D. Mich. 1996).

In addition, Plaintiff's assertions that he is

substantially limited in the major life activities of sleeping,

concentrating and maintaining stamina are not substantiated

by the record in this case. The independent evaluation, while

noting Plaintiff's report of Sleep disruptions, concludes as

follows:

It is my recommendation that his work

restrictions be granted. It is likely that the

restrictions will be permanent, given that the

Cognitive interpretation of his overtime will

likely continue, and will produce the

secondary anxiety symptoms. The

antidepressant he has been prescribed is often

used for depression, coupled with anxiety.

Sometimes the medications treat the

Symptoms, but it does not cure the problem.

: Although he continues to report symptoms,

. they would not prevent him from returning to

F a restricted work day, and as mentioned

above, there is no evidence to support a

potential for violence.

(Pitfs. Ex. 5, p. 20) (Emphasis added.) Based upon Plaintiff's

medical evidence and considering this evidence in a light most

favorable to the nonmovant, a reasonable jury could not find

he was disabled in the major life activities of sleeping,

concentrating, or maintaining stamina as the medication taken

for his symptoms allows him to perform his job duties.

2la

ea a ee

District Court Memorandum Opinion - 01/31/00

Moreover, there is no evidence which establishes that

he was regarded by the Defendant as having a disability.

Recognition of an impairment alone does not rise to the level

of a disability under the ADA. Shpargel v. Stage & Co.,

supra. An employer's request for an independent medical

examination does not equate to an employer "regarding" an

employee as disabled. Sullivan v. River Valley School Dist.,

197 F.3d 804, 810-811 (6th Cir. 1999). In this case,

Defendant's request for an independent evaluation of the

Plaintiff is insufficient to establish that the employer

"regarded" Plaintiff as disabled. As the Plaintiff has failed to

establish that he is a disabled individual under the ADA, the

Defendant is entitled to summary judgment on this issue.

2. Performing the Essential Functions of the Job

Assuming arguendo that the Plaintiff had established

that he is disabled individual, the Defendant contends that he

is unable to perform the essential functions of his job. A

qualified individual with a disability under ADA is "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). Plaintiff is qualified if, and only if, he

can perform the essential functions of his job. The Court

must give some deference to the employer's judgment in

determining what functions of a job are essential. Jd. Other

factors which may be considered include the work experience

of others, both in the past and present, who have held the

same position. Brichers v. Cleveland Bd. Of Educ., 145 F.3d

846, 849 (6th Cir. 1998).

22a

District Court Memorandum Opinion - 01/31/00

The Job Demands/Task Analysis relative to Plaintiffs

job identifies a number of factors necessary to his position.

Under the category of work environment, the position of line

support (cake) requires working alone, working without direct

supervision, long work hours required, and indicates that a

work week over 40 hours, as well as a rotating shift. (Plts Ex.

1.)

The over time assignments are also dictated by the

collective bargaining agreement ( "CBA"). When overtime

is required after the employee's normally scheduled shift, the

first worker responsible to work the overtime is the employee

on the job who worked the preceding shift. Overtime that is

scheduled prior to the shift commencing is assigned to the

person with the least number of hours in that department.

(Olsen Dep., pp. 27-28.)

The evidence in the record reflects that the long work

hours are described in Plaintiffs job classification and are also

impacted by the CBA. An employer may not restructure a

job in a manner Which would undermine the legitimate rights

of other employees relative to a CBA. Foreman v. Babcock

& Wilcox Co., 117 F.3d 800, 810 (Sth Cir. 1997); Bensen v.

Northwest Airlines, Inc., 62 F.3d | 108, 1 114 (8th Cir. 1995):

Jasany v. U.S. Postal Service, 755 F.2d 1244, 1251-1251 (6th

Cir. 1985) (determined under the Rehabilitation Act of 1974)

A person who cannot perform the essential functions of his

position may not be an "otherwise qualified individual with a

disability." Kiphart v. Saturn Corp., 74 F.Supp.2d 769

(M.D. Tenn. 1999). Because the Plaintiff indicates that he is

unable to work over eight hours a day due to his impairment, .

he is unable to perform the essential functions of his job and,

thus, the Defendant's motion for summary judgment would be

23a

District Court Memorandum Opinion - 01/31/00

granted on that basis.

CONCLUSION

As the Plaintiff has failed to establish a prima facie

case under the ADA, the Court finds that Defendant's Motion

for Summary Judgment (Doc. No. 38) is granted.

IT IS SO ORDERED

/s/

DAVID A. KATZ

U.S. DISTRICT JUDGE

24a

APPENDIX C

TITLE 42. THE PUBLIC HEALTH AND WELF ARE

CHAPTER 126. EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES

42 USCS §12101 (2002)

§12101. Congressional findings and purposes

(a) Findings. The Congress finds that-

(1) some 43,000,000 Americans have one or more physical or

mental disabilities, and this number is increasing as the

population as a whole is growing older;

(2) historically, society has tended to isolate and segregate

individuals with disabilities, and, despite some improvements,

such forms of discrimination against individuals with

disabilities continue to be a serious and pervasive social

problem;

(3) discrimination against individuals with disabilities persists

in such critical areas as employment, housing, public

accommodations, education, transportation, communication,

recreation, institutionalization, health services, voting, and

access to public services;

(4) unlike individuals who have experienced discrimination on

the basis of race, color, sex, national origin, religion, or age,

2Sa

Bete eg ee eee eae ae ee

acai aan.

Federal Statutory Provisions

individuals who have experienced discrimination on the basis

of disability have often had no legal recourse to redress such

discrimination;

(5) individuals with disabilities continually encounter various

forms of discrimination, including outright intentional

exclusion, the discriminatory effects of architectural,

transportation, and communication barriers, overprotective

rules and policies, failure to make modifications to existing

facilities and practices, exclusionary qualification standards

and criteria, segregation, and relegation to lesser services,

programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have

documented that people with disabilities, as a group, occupy

an inferior status in our society, and are severely

disadvantaged socially, vocationally, economically, and

educationally;

(7) individuals with disabilities are a discrete and insular

minority who have been faced with restrictions and

limitations, subjected to a history of purposeful unequal

treatment, and relegated to a position of political

powerlessness in our society, based on characteristics that are

beyond the control of such individuals and resulting from

stereotypic assumptions not truly indicative of the individual

ability of such individuals to participate in, and contribute to,

society;

(8) the Nation's proper goals regarding individuals with

disabilities are to assure equality of opportunity, full

participation, independent living, and economic self-

sufficiency for such individuals; and

26a

Federal Statutory Provisions

(9) the continuing existence of unfair and unnecessary

discrimination and prejudice denies people with disabilities

the opportunity to compete on an equal basis and to pursue

those opportunities for which our free society is justifiably

famous, and costs the United States billions of dollars in

unnecessary expenses resulting from dependency and

nonproductivity.

(b) Purpose.

It is the purpose of this chapter-

(1) to provide a clear and comprehensive national mandate for

the elimination of discrimination against individuals with

disabilities;

(2) to provide clear, strong, consistent, enforceable standards

addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role

in enforcing the standards established in this Act on behalf of

individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including

the power to enforce the fourteenth amendment and to

regulate commerce, in order to address the major areas of -

discrimination faced day-to-day by people with disabilities.

(Pub. L. 101-336, Sec.2, July 26, 1990, 104 Stat. 328.)

REFERENCES IN TEXT

This chapter, referred to in subsec. (b), was in the original

“this Act”, meaning Pub. L. 101-336, July 26, 1990, 104

27a

Federal Statutory Provisions

Stat. 327, which is classified principally to this chapter. For

complete classification of this Act to the Code, see Short Title

note set out below and Tables.

SHORT TITLE

Section 1(a) of Pub. L. 101-336 provided that: “This Act

| (enacting this chapter and section 225 of Title 47, Telegraphs,

Telephones, and Radiotelegraphs, amending section 706 of

Title 29, Labor, and sections 152, 221, and 611 of Title 47,

and enacting provisions set out as notes under sections 12111,

12131, 12141, 12161, and 12181 of this title) may be cited as

the ‘Americans with Disabilities Act of 1990.”

28a

Federal Statutory Provisions

TITLE 42. THE PUBLIC HEALTH AND WELF ARE

CHAPTER 126. EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES

42 USCS §12111 (2002)

§12111. Definitions

As used in this title:

(1) Commission.

The term "Commission" means the Equal Employment

Opportunity Commission established by section 705 of the

Civil Rights Act of 1964 (42 U.S.C. 2000e-4).

(2) Covered entity.

The term "covered entity" means an employer, employment

agency, labor organization, or joint labor-management

committee.

(3) Direct threat.

The term "direct threat" means a significant risk to the health

or safety of others that cannot be eliminated by reasonable

accommodation.

(4) Employee. :

The term "employee" means an individual employed by an

employer. With respect to employment in a foreign country,

such term includes an individual who is a citizen of the United

States.

29a

Federal Statutory Provisions

(5) Employer.

(A) In general.

The term "employer" means a person engaged in an industry

affecting commerce who has 15 or more employees for each

working day in each of 20 or more calendar weeks in the

current or preceding calendar year, and any agent of such

person, except that, for two years following the effective date

of- this title, an employer means a person engaged in an

industry affecting commerce who has 25 or more employees ~

for each working day in each of 20 or more calendar weeks

in the current or preceding year, and any agent of such

person.

(B) Exceptions.

The term "employer" does not include-

(i) the United States, a corporation wholly owned by the

government of the United States, or an Indian tribe; or

(ii) a bona fide private membership club (other than a labor

organization) that is exempt from taxation under section

501(c) of the Internal Revenue Code of 1986.

(6) Illegal use of drugs.

(A) In general.

30a

Federal Statutory Provisions

The term "illegal use of drugs" means the use of drugs, the

Possession or distribution of which is unlawful under the

Controlled Substances Act (21 U.S.C. 812). Such term does

not include the use of a drug taken under supervision by a

licensed health care professional, or other uses authorized by

the Controlled Substances Act or other provisions of Federal

law.

(B) Drugs.

The term "drug" means a controlled substance, as defined in

schedules I through V of section 202 of the Controlled

Substances Act [21 USCS §812].

(7) Person, etc.

The terms "person", "labor organization", "employment

agency", "commerce", and "industry affecting commerce ie

Shall have the same meaning given such terms in section 70]

of the Civil Rights Act of 1964 (42 U.S.C. 2000e).

(8) Qualified individual with a disability.

The term "qualified individual with a disability" means 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. For

the purposes of this title, consideration shall be given to the

employer's judgment as to what functions of a job are

essential, and if an employer has prepared a written

description before advertising or interviewing applicants for

the job, this description shall be considered evidence of the

essential functions of the job.

3la

Federal Statutory Provisions

(9) Reasonable accommodation.

The term "reasonable accommodation" may include-

(A) making existing facilities used by employees readily

accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or modification

of equipment or devices, appropriate adjustment or

modifications of examinations, training materials or policies,

the provision of qualified readers or interpreters, and other

similar accommodations for individuals with disabilities.

(10) Undue hardship.

(A) In general. The term "undue hardship" means an action

requiring significant difficulty or expense, when considered

in light of the factors set forth in subparagrapii (B).

(B) Factors to be considered. In determining whether an

accommodation would impose an undue hardship on a

covered entity, factors to be considered include-

(i) the nature and cost of the accommodation needed under

this Act;

(ii) the overall financial resources of the facility or facilities

involved in the provision of the reasonable accommodation;

the number of persons employed at such facility; the effect on

expenses and resources, or the impact otherwise of such

accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the

overall size of the business of a covered entity with respect to

32a

Federal Statutory Provisions-

the number of its employees; the number, type, and location

of its facilities; and

(iv) the type of operation or operations of the covered entity,

including the composition, structure, and functions of the

workforce of such entity; the geographic separateness,

administrative, or fiscal relationship of the facility or facilities

in question to the covered entity.

(Pub. L. 101-336, title I, Sec. 101, July 26, 1990, 104 Stat.

330; Pub. L. 102-166, title I, Sec. 109(a), Nov. 21, 1991,

105 Stat. 1077.)

REFERENCES IN TEXT

The effective date of this subchapter, referred to in par.

(5)(A), is 24 months after July 26, 1990, see section 108 of

Pub. L. 101-336, set out as an Effective Date note below.

The Controlled Substances, Act referred to in par. (6)(A), is

title II of Pub. L. 91-513, Oct. 27, 1970, 84 Stat. 1242, as

amended, which is classified principally to subchapter I (Sec.

801 et seq.) of chapter 13 of Title 21, Food and Drugs. For

complete classification of this Act to the Code, see Short Title

note set out under section 801 of Title 21 and Tables. -

—

This chapter, referred to in par. (10)(B)(i), was in the original

“this Act”, meaning Pub. L. 101-336, Jul 26, 1990, 104 Stat.

327, which is classified principally to this chapter. For

complete classification of this Act to the Code, see Short Title

note set out under section 12101 of this title and Tables.

33a

se eseseentssisesstsessennssentee eens atsusssesnsnnesstestnemsmnsmsssmsnieseemnins ps...

OS Se Se a,

Federal Statutory Provisions

AMENDMENTS

1991 - Par. (4). Pub. L. 102-166 inapplicable to conduct

occurring before Nov. 21, 1991, see section 109(c) of Pub.

L. 102-166, set out as a note under section 2000e of this title.

EFFECTIVE DATE OF 1991 AMENDMENT

Amendment by Pub. L. 102-166 inapplicable to conduct

occurring before Nov. 21, 1991, see section 109(c) of Pub.

L. 102-166, set out as a not under section 2000e of this title.

EFFECTIVE DATE

Section 108 of title I of Pub. L. 101-336 provided that: “This

title (enacting this subchapter) shall become effective 24

months after the date of enactment (July 26, 19900.”

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 5057, 12581, 12594,

12635 of this title.

34a

ae etietsnsssssssinsnsennsssntsstestipnesensnneshesniseneneecsnensins os...

Federal Statutory Provisions

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 126. EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES

SUBCHAPTER I - EMPLOYMENT

| 42 USCS §12112 (2002)

§12112. Discrimination

(a) General rule.

No coveed entity shall discriminate 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.

(b) Construction.

} As used in subsection (a), the term "discriminate" includes--

(1) limiting, segregating, or classifying a job applicant or

employee in a way that adversely affects the opportunities or

status of such applicant or employee because of the disability

of such applicant or employee;

(2) participating in a contractual or other arrangement or

relationship that has the effect of subjecting a covered entity's

qualified applicant or employee with a disability to the

discrimination prohibited by this title (such relationship

35a

aE ESS SIE eS

| -

Federal Statutory Provisions

includes a relationship with an employment or referral

agency, labor union, an organization providing fringe benefits

to an employee of the covered entity, or an organization

providing training and apprenticeship programs);

(3) utilizing standards, criteria, or methods of administration--

(A) that have the effect of discrimination on the basis of

disability; or

(B) that perpetuate the discrimination of others who are

subject to common administrative control;

(4) excluding or otherwise denying equal jobs or benefits to

a qualified individual because of the known disability of an

individual with whom the qualified individual is known to

have a relationship or association;

(5) (A) 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; or

(B) denying employment opportunities to a job applicant or

employee who is an otherwise qualified individual with a

disability, if such denial is based on the need of such covered

entity to make reasonable accommodation to the physical or

mental impairments of the employee or applicant;

(6) using qualification standards, employment tests or other

selection criteria that screen out or tend to screen out an

36a

Federal Statutory Provisions

individual with a disability or a class of individuals with

disabilities unless the standard, test or other selection criteria,

as used by the covered entity, is shown to be job-related for

the position in question and is consistent with business

necessity; and

(7) failing to select and administer tests concerning

employment in the most effective manner to ensure that, when

such test is administered to a job applicant or employee who

has a disability that impairs sensory, manual, or speaking

skills, such test results accurately reflect the skills, aptitude,

or whatever other factor of such applicant or employee that

such test purports to measure, rather than reflecting the

impaired sensory, manual, or speaking skills of such

employee or applicant (except where such skills are the

factors that the test purports to measure).

(1) In general.

It shall not be unlawful under this section for a covered entity

to take any action that constitutes discrimination under this

section with respect to an employee in a workplace in a

foreign country if compliance with this section would cause

such covered entity to violate the law of the foreign country

in which such workplace is located.

(2) Control of corporation.

(A) Presumption.

If an employer controls a corporation whose place of

37a

Federal Statutory Provisions

incorporation is a foreign country, any practice that

constitutes discrimination under this section and is engaged in

by such corporation shall be presumed to be engaged in by

such employer.

(B) Exception.

This section shall not apply with respect to the foreign

operations of an employer that is a foreign person not

controlled by an American employer.

For purposes of this paragraph, the determination of whether

an employer controls a corporation shall be based on--

(i) the interrelation of operations;

(ii) the common management;

(iii) the centralized control of labor relations; and

(iv) the common ownership or financial control,

of the employer and the corporation.

(d) Medical examinations and inquiries.

(1) In general.

The prohibition against discrimination as referred to in

subsection (a) shall include medical examinations and

inquiries.

38a

atin al dad Mr dtinitht atiaals

Federal Statutory Provisions

(2) Preemployment.

(A) Prohibited examination or inquiry.

Except as provided in paragraph (3), a covered entity shall

not conduct a medical examination or make inquiries of a job

applicant as to whether such applicant is an individual with a

disability or as to the nature or severity of such disability.

(B) Acceptable inquiry.

A covered entity may make preemployment inquiries into the

ability of an applicant to perform job-related functions.

(3) Employment entrance examination.

A covered entity may require a medical examination after an

offer of employment has been made to a job applicant and

prior to the commencement of the employment duties of such

applicant, and may condition an offer of employment on the

results of such examination, if-

(A) all entering employees are subjected to such an

examination regardless of disability;

(B) information obtained regarding the medical condition or

history of the applicant is collected and maintained on

Separate forms and in separate medical files and is treated as

a confidential medical record, except that--

(i) supervisors and managers ma, be informed regarding

necessary restrictions on the work or duties of the employee

and necessary accommodations;

39a

SERN NON ARR SE EES He SET REE OS OS

Federal Statutory Provisions

(ii) first aid and safety personnel may be informed, when

appropriate, if the disability might require emergency

treatment; and

(iii) government officials investigating compliance with this

Act shall be provided relevant information on request; and

accordance with this subchapter.

(4) Examination and inquiry.

(A) Prohibited examinations and inquiries.

A covered entity shall not require a medical examination and

shall not make inquiries of an employee as to whether such

employee is an individual with a disability or as to the nature

or severity of the disability, unless such examination or

inquiry is shown to be job-related and consistent with business

necessity.

(B) Acceptable examinations and inquiries.

A covered entity may conduct voluntary medical

examinations, including voluntary medical histories, which

are part of an employee health program available to

employees at that work site. A covered entity may make

inquiries into the ability of an employee to perform job-

related functions.

Information obtained under subparagraph (B) regarding the

medical condition or history of any employee are subject to

40a

i at i il in eh ee te ee ~ . .

at RT ee ee ee ee es ee | a

i ca ” git ii PNT ae ene Po - . sa

Federal Statutory Provisions

the requirements of subparagraphs (B) and (C) of paragraph

(3).

(Pub. L. 101-336, title I, Sec. 102, July 26, 1990, 104 Stat.

331; Pub. L. 102-166, title I, Sec. 109(b)(2), Nov. 21, 1991,

105 Stat. 1077.)

AMENDMENTS

1991 - Subsecs. (c), (d). Pub. L. 102-166 added subsec. (c)

and redesignated former subsec (c) as (d).

EFFECTIVE DATE OF 199] AMENDMENT

Amendment by Pub. L. 102-166 inapplicable to conduct

occurring before Nov, 21, 1991, see section 109(c) of Pub.

L. 102-166 set out as a note under section 2000e of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1981la, 12209 of this

title; title 2 sections 1202, 1311; title 3 section 411.

4la

APPENDIX D

TITLE XLI [41] LABOR AND INDUSTRY

CHAPTER 4112: CIVIL RIGHTS COMMISSION

§4112.02 Unlawful discriminatory practices.

It shall be an unlawful discriminatory practice:

(A) For any employer, because of the race, color, religion,

sex, national origin, disability, age, or ancestry of any

person, to discharge without just cause, to refuse to hire, or

otherwise to discriminate against that person with respect to

hire, tenure, terms, conditions, or privileges of employment,

or any matter directly or indirectly related to employment.

42a

—

SO een

Se mae CU es ema

a AE allie si etre ee itn Melb net

BAAR AP A a ta DE ae Mi

Aardiinhs shit antines; rail itenintt este

TITLE XLI [41] LABOR AND INDUSTRY

CHAPTER 4112: CIVIL RIGHTS COMMISSION

$4112.99 Civil remedies for violation.

Whoever violates this chapter is subject to a civil action for

damages, injunctive relief, or any other appropriate relief.

43a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:99 CV 7020

[Filed April 23, 1999]

Terry R. Boerst

14997 Todd Road

Petersburg, Michigan 49270

Plaintiff

General Mills Operations, Inc.

c/o C.T. Corporation System,

Statutory Agent

815 Superior Avenue Northeast

Cleveland, Ohio 44114

and

American Federation of Grain Millers,

(AFL-CIO, CLC)

4949 Olson Memorial Highway

Minneapolis, Minnesota 55422-5199

and

ee ee ee a a a a ee ee ee, ee ae ee, ae, ee, ee, ee, 4, ee,

Pe tes hie at oat ab ies AEST MR ENG See Nae mm Ra

First Amended Complaint - 04/23/99

American Federation of Grain Millers)

(AFL-CIO, CLC) - Local 55 ) Is

One Maritime Plaza )

Toledo, Ohio 43604 )

)

Defendants )

FIRST AMENDED COMPLAINT

JURY DEMAND ENDORSED HEREON

JURISDICTION

8 Jurisdiction of this Court is invoked pursuant

to 28 U.S.C. §1331. This is a suit for breach of duty of fair

representation against the Defendants, American Federation

of Grain Millers and American Federation of Grain Millers -

Local 58, hereinafter "Defendant Unions ", pursuant to 29

U.S.C. §151 and this suit also involves a claim of breach of

Collective Bargaining Agreement against Defendant, General

Mills, hereinafter "Defendant Company", pursuant to 29

U.S.C. §185(a) known as section 301 of the Labor

Management Relations Act. This suit is commonly referred

to as a "hybrid 301 suit".

2. Plaintiff also invokes the jurisdiction of this

Court pursuant to 42 U.S.C. sec. 12101 et seq. known as the

Americans with Disabilities Act _and the enforcement

mechanisms for that act contained in 42 U.S.C. sec. 2000e et

seq. Said act provides for injunctive relief and damages for

discrimination in employment against qualified persons with

disabilities. On or about October 9, 1997, plaintiff filed a

charge of employment discrimination on the basis of disability

45a

First Amended Complaint - 04/23/99

with the United States Equal Employment Opportunity

Commission, charge number 220-98-0256. See Exhibit "A".

On or after March 4, 1999, plaintiff received a Notice of

Right to Sue issued by the EEOC advising him of this right to

file suit under the Americans with Disabilities Act within

ninety (90) days of his receipt of said notice. See Exhibit

x 9

3. Plaintiff also invokes this Court's supplemental

jurisdiction pursuant to 28 U.S.C. sec. 1367 over Ohio

statutory and common law claims.

NATURE OF THE CASE

4. Plaintiff brings claims that the Defendant

Company breached the Collective Bargaining Agreement

when it failed to make reasonable accommodations for

Plaintiff's disability as provided in §1.02-2. Plaintiff states

that Defendant Unions failed to process his grievance and

improperly declined to take said grievance to arbitration.

Plaintiff further alleges that the conduct of the defendant

company violated the Americans with Disabilities and Chapter

4112 of the Ohio Revised Code as related to handicap

discrimination. Plaintiff contends that the conduct of the

defendant unions violated Chapter 4112 of the Ohio Revised

Code as related to handicap discrimination.

PARTIES

2 Plaintiff Terry R. Boerst is a white male citizen

of the City of Petersburg, County of Monroe, State of

Michigan. Plaintiff contends that he was refused

46a

i at » RRL WAL Holi nai

MBAR A Peat eA AC peta OMI tae ete hss att » cre

ae. weno be HEA a a ahi aa ag aa ab aa ice

First Amended Complaint - 04/23/99

accommodations for his disability from May 14, 1997 until

November 10, 1997.

6. Defendant, General Mills, produces numerous

products throughout the United States and is engaged in an

industry affecting commerce. At all times material hereto,

said Defendant Company was and Currently is Plaintiff's

employer.

7. Defendants American Federation of Grain

Millers and American Federation of Grain Millers - Local 58

are labor organizations certified as the sole and exclusive

collective bargaining agents for certain General Mills

Corporation Employees among other corporations.

FIRST CLAIM FOR RELIEF

> Breach of Labor Contract

8. Plaintiff incorporates each and every allegation

contained in paragraph one (1) through seven (7) by reference

in its entirety as if fully restated herein.

9. In late 1996, Plaintiff was diagnosed with stress

disorder and restricted by his physician to eight (8) hour work

days. At this time, Defendant Company acknowledged and

Supported the physician's order. However, on May 14, 1997,

Defendant Company refused to continue reasonable

accommodations for Plaintiff's disability. | Defendant

Company stated that the physician's order had lapsed in

January, 1997, five months prior to Defendant Company's

demand that Plaintiff work beyond the eight (8) hours

prescribed by his physician. However, there was no

corroborating documentation to support Defendant Company's

47a

First Amended Complaint - 04/23/99

contention that a time limit had been placed on Plaintiff's

eight (8) hour per day work restriction. Defendant further

stated that based on its refusal, Plaintiff would be unable to

return to work. Throughout Defendant Company's refusal to

accommodate Plaintiff's disability (May 14, 1997 to

November 10, 1997), Plaintiff received multiple physicians’

evaluations that Plaintiff suffers from a stress related disorder

that requires an eight (8) hour work day restriction. All of

this information was forwarded on to Defendant Company

and yet Plaintiff was still unable to return to work until

November 10, 1997, thus forcing Plaintiff to miss nearly six

(6) months. Plaintiff then filed Grievance No. 438-3. Plaintiff

states that Defendant Company discriminated against him

based on their refusal to accommodate his disability from May

14, 1997 through November 10, 1997 which is in direct

violation with the Collective Bargaining Agreement §1.02-2.

10. As a direct and proximate result of the acts

complained of, Plaintiff has suffered lost wages, great mental

and emotional stress, anguish, humiliation and

embarrassment.

SECOND CLAIM FOR RELIEF

Breach of Duty of Fair Representation

11. Plaintiff incorporates each and every allegation

contained in paragraph one (1) through ten (10) by reference

in its entirety as if fully restated herein.

12. Onor about July 30, 1997, Plaintiff grieved the

action of th. Defendant Company complained of, supra,

pursuant to the applicable Collective Bargaining Agreement.

On or after July 13, 1998, Plaintiff learned that Defendant

48a

eon a

First Amended Complaint - 04/23/99

Unions refused to take his case to arbitration. Plaintiff states

that the actions of Defendant Unions, by and through its

officers and representatives, constitutes an improper failure to

pursue his claims to arbitration after having earlier filed for

arbitration. Plaintiff states that the Defendant Unions engaged

in a course of conduct which was arbitrary and without

rational basis in fact and which was taken without reason or

cause. Such conduct of the Defendant Unions went so far

beyond their wide range of reasonableness as to be wholly

irrational and/or devoid of any rational basis in fact.

Defendant Unions have breached their Statutory duty of fair

representation pursuant to 29 U.S.C. §§151 et seq..

13. As a direct and proximate result of the acts

complained of, Plaintiff has suffered lost wages, great mental

and emotional stress, anguish, humiliation and

embarrassment.

THIRD CLAIM FOR RELIEF

Americans with Disabilities Act

14. _ Plaintiff incorporates each and every allegation

contained in paragraphs one (1) through thirteen (13) of this

complaint by reference in its entirety as if fully restated

herein. |

15. Plaintiff alleges that refusal of Defendant

General Mills Operations, Inc. to accommodate his disability,

as described supra., from May 14, 1997 through November

10, 1997 violates the requirements stipulated under the

Americans with Disabilities Act, 42 U.S.C. sec. 12101 et seq.

Plaintiff states that said violation was willfu.

49a

First Amended Complaint - 04/23/99

16. As a direct and proximate result of the acts

complained of, Plaintiff has suffered lost wages, great mental

and emotional stress, anguish, humiliation and

embarrassment.

FOURTH CLAIM FOR RELIEF

OHIO REVISED CODE §4112.022

17. Plaintiff incorporates each and every allegation

contained in paragraphs one (1) through sixteen (16) of this

complaint by reference in its entirety as if fully restated

herein.

18. Plaintiff states that Defendant, General Mills

Operations, Inc. has unlawfully discriminated against him on

the basis of his handicap in violation of Ohio Revised Code

Sections 4112.02(A), made actionable pursuant to Ohio

Revised Code Section 4112.99. Plaintiff was and is a

handicaped person within the meaning of Ohio Revised Code

Section 4112.01(A)(13).

19. _As a direct and proximate result of the acts

complained of, Plaintiff has suffered lost wages, great mental

and emotional stress, anguish, humiliation and

embarrassment.

WHEREFORE, Plaintiff respectful:y prays for an

injunction against further discrimination practiced by

Defendant, General Mills Operations, Inc.. Plaintiff further

demands judgment against Defendants for lost back wages and

for compensatory damages, plus his costs and reasonable

attorney fees and whatever other relief, legal or equitable to

which he may appear to be entitled.

50a

First Amended Complaint - 04/23/99

Respectfully submitted,

WASSERMAN, BRYAN, LANDRY

& HONOLD

/s/

Francis I. Landry, Attorney for

Plaintiff, Terry R. Boerst

JURY DEMAND

Plaintiff demands a jury trial as to all issues SO triable

in the within cause.

/s/

Francis J. Landry

Sla

First Amended Complaint - 04/23/99

EXHIBIT A

CHARGE OF DISCRIMINATION

Michigan Department of Civil Rights and EEOC.

Mr. Terry R. Boerst (313) 854-2003

14987 Todd Road

Petersburg, MI 49270 DOB: 12/04/42

NAMED IS THE EMPLOYER, LABOR ORGANIZATION,

EMPLOYMENT AGENCY APPRENTICESHIP

COMMITTEE STATE OR LOCAL GOVERNMENT

AGENCY WHO DISCRIMINATED AGAINST ME

General Mills Cat D (501+) (419) 470-7992

1280 Laskey Road

Toledo, OH 43612

County 095

CAUSE OF DISCRIMINATION BASED ON

X_ Disability

DATE DISCRIMINATION TOOK PLACE

EARLIEST LATEST

05/14/97 09/29/97

X_ CONTINUING ACTION

52a

First Amended Complaint - 04/23/99 7

THE PARTICULARS ARE

I began employment with the above cited company in August

of 1971. My classification is Support Driver. I am an

individual with a disability.

On May 14, 1997, I became aware of the fact that my

employer has topped honoring my 8 hours per day work

restriction. Presently, I’m on a medical leave of absence

because my employer will not accommodate my most recent,

September 29, 1997 restriction notice.

I believe that I’m being denied reasonable accommodation

because of my disability in violation of the American with

Disabilities Act of 1990.

I declare under penalty of perjury that the foregoing ‘s true

and correct.

Date: 10/9/97 /s/

Terry R. Boerst

Signature of Complainant

/s/

Terry R. Boerst

Subscribed and Sworn to before me this date

9/10/97 /s/

Brenda Stowers

53a

a es ae

First Amended Complaint - 04/23/99

U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Detroit District Office

477 Michigan Ave., Room 865

Detroit, MI 48226-9704

PH: (313) 226-4600

TDD: (313) 226-7599

FAX: (313) 226-4610

Terry R. Boerst vs.

General Mills

Mr. Terry R. Boerst

14987 Todd Road

Petersburg, MI 49270

Dear Mr. Boerst:

The above cited charge that you submitted alleging

employment discrimination, in violation of The Americans

With Disabilities Act of 1990, as amended, has been

transferred to the Equal Employment Opportunity

Commission office in Cleveland, Ohio for processing. The

address is as follows:

Cleveland District Office

1660 West Second Street

Suite 850

Cleveland, Ohio 44113-1454

(216) 522-2001

54a

First Amended Complaint - 04/23/99

If we may be of further assistance, please feel free to call me

at (313) 226-7636.

Sincerely,

/s/

Brenda Stowers

Coordinator

Charge Receipts

Technical Information Unit

First Amended Complaint - 04/23/99

ACKNOWLEDGEMENT BY CHARGING PARTY OF

RECEIPT OF INFORMATIONAL BROCHURES

I hereby acknowledge that a representative of the Detroit

District Office of the U.S. Equal Employment Opportunity

Commission has provided me with a copy of each of the

following:

= 2

Rights and Responsibilities Information for Potential

Charging Parties

Informational Packet regarding Alternate Dispute

Resolution, including the form “Charging Party

Decision to Select or Decline Opportunity to

Mediation”

Charge of Employment Discrimination

Medical Authorization Release (for ADA only)

Photocopy of this form

I also acknowledge that any questions which I may have

raised during this interview were answered to my satisfaction

by the Intake Officer and/or another staff member of the

Detroit District Office. I have been informed that any further

questions may be addressed by calling (313) 226-7636.

/s/ Terry R. Boerst 10-9-97

Signature of Charging Party Date

~56a

;

First Amended Complaint - 04/23/99

/s/ Brenda Stowers 10-9-97

Signature of Commission Date

Representative

57a

First Amended Complaint - 04/23/99

EXHIBIT B

Envelope

CERTIFIED MAIL

Z 166 458 731

U.S. Equal Employment Opportunity Commission

Cleveland District Office

Tower City - Skylight Office Tower

1660 West Second Street - Suite 850

Cleveland, OH 44113-1454

Terry R. Boerst

14987 Todd Road

Petersburg, MI 49270

3/4 First Notice

3/9 Second Notice

3/19

Received 3-4-99

58a

A ate RARE able a

a ee aA

First Amended Complaint - 04/23/99

FILING SUIT UNDER TITLE VII OF THE CIVIL

RIGHTS ACT OR THE AMERICANS WITH

DISABILITIES ACT

PRIVATE SUIT RIGHTS:

This issuance of this Notice of Right to Sue ends EEOC's

process with respect to your charge. You may file a lawsuit

against the respondent named in your charge within 90 days

from the date you receive this Notice. Therefore you should

keep a record of this date. Once this 90-day period is over,

your right to sue is lost. If you intend to consult an attorney,

you should do so as soon as possible. Furthermore, in order

to avoid any question that you did not act in a timely manner,

if you intend to sue on your own behalf, your suit should be

filed well in advance of the expiration of the 90-day period.

Your lawsuit must be filed in U.S. District Court. Filing this

Notice is not sufficient. A court complaint must contain a

short statement of the facts of your case which shows that you

are entitled to relief. Generally, suits are brought in the state

where the alleged unlawful practice occurred, but in some

cases can be brought where relevant employment records are

kept, where the employment would have been, or where the

respondent has its main office.

You may contact EEOC if you have any questions about your

rights, including advice on which U.S. District Court can hear

your case, or if you need to inspect and copy information

contained in the case file. (Additionally, many EEOC offices

can provide you with names of private attorneys who have

agreed to consider referrals for private litigation.)

59a

First Amended Complaint - 04/23/99

ATTORNEY REPRESENTATION:

If you cannot afford or have been unable to obtain a lawyer

to represent you, the U.S. District Court having jurisdiction

in your case may, at its discretion, assist you in obtaining a

lawyer, if you plan to ask the U.S. District Court to help you

obtain a lawyer, you must make this request of the court in

the form and manner it requires. Your request to the U.S.

District Court should be made well before the end of the 90-

day period mentioned above. A request for representation

does not relieve you of the obligation to file a lawsuit within

this 90-day period.

DESTRUCTION OF FILE:

If you file suit, you or your attorney should forward a copy

of your court complaint to the office where you filed your

charge within 10 days after you file suit. Your file will be

preserved. Generally, EEOC's rules call for your charge file

to be destroyed six months from now (one year in the case of

charges dismissed for no jurisdiction) unless you have notified

us that you have filed suit in U.S. District Court.

IF YOU FILE SUIT, YOU OR YOUR ATTORNEY

SHOULD NOTIFY THIS OFFICE WHEN THE

LAWSUIT IS RESOLVED.

rs APPENDIX F

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:99CV7020

[Filed May 19, 1999]

Terry R. Boerst,

Plaintiff,

General Mills Operations, Inc., et al.,

Defendants.

)

ANSWER OF GENERAL MILLS, INC.

TO FIRST AMENDED COMPLAINT

With respect to the allegations in the complaint

numbered below, defendant General Mills, Inc. ("General

Mills") incorrectly referred to as General Mills Operations,

Inc., responds as follows:

1. General Mills acknowledges the existence of

the statutes identified in paragraph 1 but denies any liability

thereunder.

6la

Answer General Mills, Inc. - 05/19/99

2. General Mills acknowledges the existence of

the statutes identified in paragraph 2 and the claims of

plaintiff that he filed a charge with the Equal Employment

Opportunity Commission but denies any liability thereunder.

2 General Mills acknowledges the existence of

the statutes identified in paragraph 3 but denies any liability

thereunder.

4. General Mills acknowledges that plaintiff

makes certain claims in paragraph 4 of his complaint but

denies any liability as to any such claims. Except as

specifically admitted herein, General Mills denies each and

every allegation of paragraph 4.

A General Mills admits that plaintiff is a white

male but is without sufficient knowledge or information to

form a belief as to the truth of plaintiffs citizenship and denies

that plaintiff was refused accommodations for his alleged

disability. Except as specifically admitted herein, General

Mills denies each and every remaining allegation in paragraph

6. Admit.

rf Admit.

8. General Mills incorporates as though fully

rewritten herein the averments set forth above.

9. General Mills admits that plaintiff provided

General Mills with a statement from his physician in late 1996

indicating that plaintiff was undergoing treatment for stress

62a

Answer General Mills, Inc. - 05/19/99

and that plaintiff's physician recommended that plaintiff work

no more than eight hours per day for eight weeks, General

Mills further admits that it allowed plaintiff to work only eight

hours per day until May, 1997. General Mills also admits

that plaintiff filed a grievance. Except as specifically

admitted herein. General Mills denies each and every

remaining allegation of Paragraph 9.

10. Deny.

11. General Mills incorporates as though fully

rewritten herein the averments set forth above.

12. General Mills admits that plaintiff filed a

grievance, and that a decision was made by defendant unions

to refuse to take plaintiff's case to arbitration. Except as

specifically admitted herein, General Mills denies each and

every allegation of paragraph 12.

13. Deny.

14. General Mills incorporates as though fully

rewritten herein the averments set forth above.

15. Deny.

16. Deny.

17. General Mills incorporates as though fully

rewritten herein the averments set forth above.

18. Deny.

63a

- Answer General Mills, Inc. - 05/19/99

19. Deny.

FIRST AFFIRMATIVE DEFENSE

. Plaintiff fails to state a claim upon which relief may be

granted against General Mills.

SECOND AFFIRMATIVE DEFENSE

Some or all of plaintiff's claims may barred by the

applicable statute of limitations or be otherwise time barred.

- THIRD AFFIRMATIVE DEFENSE

Plaintiff's claims are or may be barred by the

doctrines of waiver, estoppel and laches.

WHEREFORE, defendant General Mills requests judgment

dismissing the complaint with prejudice plus an award of

expenses incurred herein including costs and attorneys fees

and any other relief deemed just and equitable.

Respectfully submitted.

Jennifer J. Dawson (0033707)

Roman Arce (0059887)

By /s/

Nal antdlatrecns Calotnasmeee Ae

Answer General Mills, Inc. - 05/19/99

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was sent

by ordinary U.S. Mail, postage prepaid, this 19" day of

May, 1999, to Francis J. Landry, Wasserman, Bryan, Landry

& Honold, 300 Inns of Court Building, 405 North Huron

Street, Toledo, Ohio 43604; Joan Torzewski, Lackey,

Nusbaum, Harris, Reny & Torzewski, LPA, Two Maritime

Plaza, Third Floor, Toledo, Ohio 43604; and Richard

Helfand, 1125 Grand Boulevarc Suite 1500, Kansas City,

Missouri 64106

/s/

65a

APPENDIX G

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:99CV7020

[Filed July 30, 1999]

Terry R. Boerst,

Plaintiff,

General Mills Operations, Inc., et al.,

Defendants

Nee eee eee ee”

STIPULATION AND ORDER

Now come the undersigned counsel for the respective

parties and hereby stipulate that the First Amended Complaint

may be dismissed in its entirety as to Defendants, American

Federation of Grain Millers, and American Federation of

Grain Millers Local 58 AFL-CIO, CLC, said dismissal to be

with prejudice with the further provision that each party bear

its own costs and attorney fees. The Plaintiff's undersigned

counsel further stipulates that the First Claim for Relief may

be dismissed with prejudice as to Defendant, General Mills,

Inc., and that, as a result of said dismissals, the case shall

proceed as to Defendant, General Mills, Inc., only on the

66a

Third and Fourth Claims for Relief set forth in the First

Amended Complaint filed in this action on April 23, 1999.

For good cause shown and based upon the above

stipulation it is ORDERED, ADJUDGED AND DECREED

that the First Amended Complaint be and is hereby dismissed

in its entirety with prejudice as to Defendants, American

Federation of Grain Millers, and American Federation of

Grain Millers Local 58, AFL-CIO, CLC. It is FURTHER

ORDERED, ADJUDGED AND DECREED that as to the

parties affected by the above dismissals each party shall bear

its own costs and attorney fees. It is FURTHER ORDERED,

ADJUDGED AND DECREED that the First Claim for

Relief be and hereby is dismissed with prejudice as to

Defendant, General Mills, Inc. It is FURTHER ORDERED,

ADJUDGED AND DECREED that, as a result of said

dismissals, the case shall proceed as to Defendant, General

Mills, Inc., only on the Third and Fourth Claims for Relief

set forth in the First Amended Complaint filed in this action

on April 23, 1999.

IT IS SO STIPULATED: IT IS SO ORDERED:

/s/ /s/

Francis J. Landry, U.S. District Judge

attorney for Plaintiff, —

Terry Boerst 7/29/99

Date

/s/

Joan Torzewski,

attorney for Defendant,

American Federation of

Grain Millers Local 58

67a

cease

/s/

Richard Helfand, -

attorney for Defendant,

AFGM International Union

AFL-CIO, CLC

/s/

Jennifer J. Dawson

attorney for Defendant,

General Mills Operations, Inc.

68a

APPENDIX H

Kenneth H. Adler, M.D. 6545 West Central Avenue

Suite 206

Toledo, Ohio 43617

419.841.3003

October 8, 1997

ATTN: CLAUDIA

GENERAL MILLS

_ RE: TERRY BOERST

Dear Claudia,

Mr. Boerst is restricted to 40 hours per week. Mr.

Boerst is continuing with regular ‘outpatient psychotherapy

and medication management and is currently taking Zoloft

100mg his diagnosis is depressive disorder and his prognosis

is fair. -

If you need additional information or if I can be of

further assistance, please feel free to contact me.

Sincerely,

/s/

Kenneth H. Adler, M.D.

69a

Various Letters Regarding Psychiatric Evaluation

of Terry R. Boerst

Harbor

Behavioral Healthcare

Employee Assistance Division . 4334 Secor Road .

Toledo, Ohio 43623 . 419-475-5338

June 26, 1997

Dr. Hudson Jones

620 W. Bancroft

Toledo, Ohio 43620

RE: Assessment for Terry Boerst

Dear Dr. Jones,

This letter is regarding Mr. Terry Boerst. I initially met with

Mr. Boerst on 5/15/97, followed by two additional visits on

5/22/91 and 5/29/97. During these sessions we discussed

significant symptoms of stress that Mr. Boerst had been

experiencing for approximately the last 6 months. These

symptoms included anxiety and anxiety attacks, difficulty

sleeping, poor concentration and preoccupation with problems

at work. The symptoms appeared to be causing significant

distress for Mr. Boerst at work and outside of work hours.

Mr. Boerst reported that he has experienced numerous

problems at work dating back many years, and that there is a

direct connection between the above symptoms of stress and

his employment. He was seeking support on how to address

the problems at work with the hope that some of the work-

related stress he was experiencing could be relieved.

70a

aaa |.

Various Letters Regarding Psychiatric Evaluation

of Terry R. Boerst

It appears that there is a direct link between the above

symptoms and Mr. Boerst’s work environment. My

recommendations for Mr. Boerst include addressing

appropriate issues with his employer, consulting wit you

regarding a restricted work hours so the above symptoms can

be managed or alleviated, and supportive counseling to

address ongoing stress-related symptoms.

I hope this information is helpful to you. Please feel free to

call me is you need more information or if you have any

questions.

Sincerely,

/s/

Lisa Rectenwald,

MRC, LPC, CCDC III, NCAC I

Clinical Therapist

Harbor Employee Assistance

71a

Various Letters Regarding Psychiatric Evaluation

of Terry R. Boerst

Psychiatric evaluation

RE: Terry Boerst

DOB: 12/4/42 :

SS#: 280-38-6414

Date of eval: 10/20/97

Mr. Boerst is a 54 year old male referred for an independent

medical examination by General Mills. He arrived on time

for the appointment. Mr. Boerst has been a GM employee

for 27 years. He described working overtime, as a routine

for him. He sometimes work two or three days and then

asked to come in early the next day for over time. His

normal hours are from 7:00 AM to 3:00 PM, and if asked to

come in early, he comes in at 3:00 AM and leaves at 3:00

PM. It affects his sleeping, “worrying about coming in

early”, and more often than not they do have to work

overtime, rather than every 8-10 days as reported. He stated

that there is no control over it, given that someone has to

cover, if any one calls in. As a result of the pressure with

working the overtime, he began experiencing anxiety. “He

tried to handle it on his own”, but the symptoms increased

over the past six months to one year. He stated that he does

not know how it all began, but he sought the assistance of his

doctor. He reported feeling anxious, chest pain, stomach

pain, nausea, and “feeling as if he is going nuts.” He then

developed a fear of being late to work, and noticed “his heart

racing.” His primary care doctor recommended an eight hour

restriction, which had to be renewed, periodically. Somehow

the last time it was scheduled for renewal, it did not happen,

and he was forced to work overtime again, which aggravated

his symptoms. He stated that he has been off work since May

72a

Various Letters Regarding Psychiatric Evaluation

of Terry R. Boerst

14, 1997 due to “the company not accepting his eight hour

restrictions.” He has been suffering from “depression,

anxiety and fatigue.” He was in treatment with his primary

care doctor, Dr. Jones, who referred him to Harbor

Behavioral health, about four months ago. He was evaluated

by Lisa Rectenwald, who also recommended the eight hour

restrictions. Mr. Boerst was then referred to Dr. Adler, a

psychiatrist, with whom he is contact every two weeks, and

he prescribed for him Zoloft 100 mg per day. He believes the

medication has helped “a little, because he has not been as

easily upset.” He continues to experience difficulty sleeping,

about two to four hours at night. He reported decrease

energy, concentration, and fluctuating sleep. He denied any

suicidal thoughts, nor hallucinations, nor obsessive

compulsive symptoms.

Past medical history

He has no medical problems nor medication allergy.

Past psychiatric history

As described above. He was seen by a psychologist due to

work related problems, about nine years ago. “After being

tested and taking the results to his job, his problems ended.”

Twenty years ago, he was also seen by a psychologist due to

work related issues.

Family history

He believes his father was seen by a psychiatrist, in the past.

His brother is an alcoholic.

Various Letters Regarding Psychiatric Evaluation

of Terry R. Boerst

Social history

Mr. Boerst was born and reared in Toledo. He graduated

from Libby high school. He has one brother and one sister.

He has been a General Mills employee 27 years, and stated

that his problems at work began with his need for an eight

hour restriction. He denied any history of violence at work,

although “will stand up for himself. He recalled on one

occasion, a foreman was “yelling at him”, and his response

was to tell him to “get out of his face.” About nine years

ago, “while trying to help a fellow employee, who was an

addict”, he was written up for leaving the department. He

was “harassed for a while after that.” He saw a psychologist,

after which he had no problems for eight years. Before

working with General Mills, he worked for Toledo Steel. He

is married 32 years and has three children. He lives alone

with his wife. He described a typical day as “doing little

except, cleaning the house, doing some laundry.” He denied

any alcohol use, being sober 11 years. He smokes one pack

of cigarettes per day. He stated that he wants to return to

work, work Saturday and Sunday, but is unable to tolerate

being on call for overtime, without significant anxiety.

Mental Status examination.

Mr. Boerst is a 54 year old male who looked about his stated

age. He was casually dressed and groomed. He appeared

relaxed during the interview. He was alert and oriented to

person, place and time. His mood was mildly dysphoric. His

affect was appropriate. His speech was fluent without

delusions. He was able to interpret several proverbs given

him, appropriately. His concentration was intact with serial

74a

Various Letters Regarding Psychiatric Evaluation

of Terry R. Boerst

subtraction, but his attention revealed some deficits with digit

span. His memory for recent and remote events were intact.

His immediate recall was 2/3 items in 4 minutes. His

judgment and insight was good.

Diagnosis Axis I Anxiety disorder Nos.

Major depression - mild

Defer

No medical problems

Moderate work related stress

GAF - 60

Summary

Mr. Boerst is a 54 year old married male with a history of

work related stress, and the subsequent development of an

anxiety and depressive disorder. He continues to report

significant symptoms.

It is clear that he has developed an anxiety disorder in

response to his work hours, and his interpretations of it. It is

very possible to develop an anxiety disorder as he has

described.

It is my recommendations that his work restrictions be

granted. It is likely that the restrictions will be permanent,

given that the cognitive interpretation of his overtime will

likely continue, and will produce the secondary anxiety

symptoms. The antidepressant he has been prescribed is often

used for depression, coupled with anxiety. Sometimes the

addition of Buspar or a benzodiazsoine helps reduce the

75a

Various Letters Regarding Psychiatric Evaluation

of Terry R. Boerst

anxiety further. The medications treat the symptoms, but

does not cure the problem.

Although he continues to report symptoms, they would not

prevent him from returning to a restricted work day, and as

mentioned above, there is no evidence to support the potential

for violence.

Submitted by:

/s/

Keithe Joseph Daniels, MD

3930 Sunforest Ct., Ste 200

Toledo, Ohio 43623

76a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.