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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 905

## 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.

va

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?

i

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.

li

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

iV

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

vi

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

2

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

3

ek
ae

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

4

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.

TT

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

6

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

7

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

8

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

9

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

10

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.

11

— eee

Respectfully submitted,

WASSERMAN, BRYAN, LANDRY
& HONOLD, LLP

Francis J. Landry

Counsel of Record

Counsel for Petitioner

12

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 00-3281

January 15, 2002, Filed

TERRY R. BOERST,
Plaintiff-Appellant,

V.

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.

la

— —_——_—_—__ 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.

2a

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.

3a

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.

4a

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)
.
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:

X

X

be

X
= 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

:
|
4
;
:
:
*i
¢

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.

i
3

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,

V.

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
a.

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,

V.

a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1685%3A1. Public record. Not legal advice.