Petition for Writ of Certiorari — Middleton v. Ball-Foster Glass Container Co.

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>, Supreme Court,

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Y 11554 apr 16 2008

No. ___OF FICE OF THE CLERK

In The

Supreme Court of the United States

STEVE MIDDLETON,

Petitioner,

VS.

BALL-FOSTER GLASS CONTAINER COMPANY, L.L.C.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN E. WALL, Jr.

Counsel of Record

LaurA EARDLEY CALHOUN

Law OrfFfices OF JOHN E. WALL, JR.

5728 Prospect Avenue, Suite 2001

Dallas, Texas 75206

(214) 887-0100 (telephone)

(214) 887-0173 (facsimile)

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Does the Court’s holding in Toyota Motor Mfg., Ky.,

Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151

L.Ed.2d 615 (2002) relegate employees who are

“regarded as” being disabled by their employers fol-

lowing an on-the-job injury and resultant disability to

a position of no protection when the employee desires

to work and the employer thwarts the return to work?

Is the Fifth Circuit’s reliance on Toyota Motor Mfg.,

Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151

L.Ed.2d 615 (2002) erroneous in a claim involving a

perceived disability by the employer under the Amer-

icans With Disabilities Act when it is the employer

who claims the employee cannot perform various jobs

and prohibits the employee from working even

though the employee and the employee’s physician

maintain that the employee is otherwise qualified?

What constitutes good faith participation by the

employer in the “interactive process” required under

the Americans With Disabilities Act in determining

whether a reasonable workplace accommodation can

be made for an employee regarded as being disabled

by his employer?

Do the Opinions of the District Court and the Fifth

Circuit transform the interactive process to effectuate

a reasonable workplace accommodation under the

Americans With Disabilities Act from a process to

prevent discrimination to a means to effectuate dis-

crimination?

Does this Court’s holding in Toyota Motor Mfg., Ky.,

Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151

L.Ed.2d 615 (2002) remove every work-related injury

and resultant disability from the protection afforded

to qualified individuals with a disability?

QUESTIONS PRESENTED FOR REVIEW - Continued

Does a physical impairment which arises from a

work-related injury and substantially limits working

ability more than other major life activities qualify as

a “disability” under the American With Disabilities

Act?

Do the Opinions of District Court and the Fifth Cir-

cuit in Middleton metamorphasize Fed. R. Civ. P. 56 to

the extent that all of the nonmovant-employee’s con-

troverting evidence may be rejected or considered in

the light most favorable to the movant-employer in

an employment discrimination case?

Is an employee a qualified individual with a disability

under the Americans With Disabilities Act if the

employee is limited in his ability to lift as a result of a

work related injury or, stated differently, is a lifting

restriction, as a matter of law, not a substantial limita-

tion on major life activity as held by the Fourth, Fifth

and Eighth Circuits?

lll

PARTIES TO THE PROCEEDING

The following is a list of all parties to the proceedings

in this case in the United States Court of Appeals for the

Fifth Circuit:

Steve Middleton, Appellant-Petitioner

John E. Wall, Jr., Attorney for Appellant-

Petitioner

Ball-Foster Glass Container Company,

L.L.C., Appellee-Respondent

Richard M. Kobdish and the law firm of

Fulbright & Jaworski, Attorneys for Appel-

lee-Respondent

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

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APPLICABLE RULES AND STATUTES............. l

DEAR EEE GI ROMS GAs ccc ic ctncvecccsaceeuees 4

ARGUMENT: REASONS FOR ALLOWANCE OF

WEEE noises 54 edeedT Tena ceehs eae eeUe es 13

Ca EE co a naka an sow ade oad ee Nee e aa aa 29

APPENDIX A (1/16/02 Opinion of the Fifth Cir-

Se Se OE PN og oho oko se dks sees cael App. 1

APPENDIX B (2/2/01 Final Judgment of the Dis-

Se Ns rae cscinscassuenseeee ese eeeeeul App. 3

APPENDIX C (2/2/01 Memorandum Opinion and

Order of the District Court granting summary

SDs. 20dss0c0sssannsau ees neous eneeaes App. 5

APPENDIX D (Declaration of Steve Middleton)... App. 43

TABLE OF AUTHORITIES

Page

CASES

Blow v. City of San Antonio, 236 F.3d 293 (5th Cir.

WAY. oc ecdcdtdasane sass iashedeaa es Agee eee eu ees 24

Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir.

SOQOID. oc nccvacensscddnsyadudaueu shee enean ne ene eee 22

Evans v. City of Bishop, 238 F.3d 586 (5th Cir.

yo)! |) ee PeRP Pre error ee 23, 24

Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th

Cir. 1997) oc eiav ey easess keener eae ne ann

Giles v. General Electric Co., 245 F.3d 474 (5th Cir.

ys 1) ) rr errr rere es Cra 17

Loulseged v. Akzo Noble, Inc., 178 F.3d 731 (5th Cir.

WD cc nccccceccssonecnnctsesas geeennnaas ah, 27s 20

Reeves v. Sanderson Plumbing Products, Inc., 120

S.Ct. 2097 (2000).......---- sere eees 16, 17, 22, 23, 24

Russell v. McKinney Hospital Venture, 235 F.3d 219

(5th Cir. 2000)......----e eee seer eres 22, 23, 24, 26

Seaman v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999) .... 24

Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th

‘a | PPE ere ee 17

St. Mary’s Honor Center v. Hicks, 113 S.Ct. 2742

4) ce a 23

Tt.) PPPOE Ey 17, 18

Taylor v. Principal Financial Group, 93 F.3d 155 {5th

Cir.), cert. denied, 117 S.Ct. 586 (1996)...------- 27, 28

TABLE OF AUTHORITIES - Continued

Page

Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S

184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) passim

lurco v. Hoechst Celanese Co., 101 F.3d 1090 (5th Cir

SOR hc civ cdéscawenxasdseeesssiee ee 20

Vance v. Union Planters Corp., 209 F.3d 438 (5th Cir.

2000) enanebaueee . 23

STATUTES AND RULES

FOG. Be. GOR Be GO ksckeeesecsesesseesea eee 16

Jurisdiction Statutes

28 U.S.C. § 1254(1) .. | i‘cnededen ane l

ae USA... & idsbcccss iis cees6enb awe 4

28 US. © 1567 < acces | 00008 68 hee ee 4

28 USA. & ZR) 666406000000000000044eeee 1

Americans With Disabilities Act of 1991

42 U.S.C. § 12102(2) (West 1995) ................ 2, 17

42 U.S.C. § 12102(2)(A) (West 1995) ............... 14

42 U.S.C. § 12102(2)(C) (West 1995) ............... 14

42 U.S.C. § 12111(8) (West 1995) ................2, 20

42 U.S.C. § 12111(9) (West 1995) ................3, 21

42 US.C. §& WZi11(1G) (Waet 1955) ... 2c cccncccaceees 3

42 US.C. § 12k Tala) (les BGSS) on cccccccccuceen 2, 22

42 US.C. §& 121120) (West 1995)... ccccccccccucesse 2

42 U.S.C. § 12112(b)(5) (West 1995)................ 22

fit =

TABLE OF AUTHORITIES - Continued

29 C.ER. § 1630.2(i) (1996)...------ssererr ert

29 C.ER. § 1630.2(j)(i) (1996).------ ++ seer rrr

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit in case no. 01-10329 affirmed the deci-

sion of the United States District Court for the Northern

District of Texas, which granted summary judgment in

favor of the Respondent on all claims. Following Oral

Argument on December 6, 2001, the Fifth Circuit issued a

six-sentence unpublished Opinion dated January 16, 2002

and reprinted here as Appendix A. The district cour*’s

February 2, 2001 Final Judgment and Memorandum

Opinion and Order are printed here as Appendix B and

Appendix C, respectively.

STATEMENT OF JURISDICTION

This Petition for a Writ of Certiorari seeks review of

the opinion of the United States Court of Appeals for the

Fifth Circuit entered on January 16, 2002.

Jurisdiction is invoked pursuant to 28 U.S.C.

§ 1254(1). This Petition for Certiorari is timely filed pur-

suant to 28 U.S.C. § 2101(c).

APPLICABLE STATUTES

1. The statutes applicable to this case are as follows:

Americans With Disabilities Act of 1990:

General Rule

No covered 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/or other terms, conditions,

and privileges of employment. 42 U.S.C.

§ 12112(a).

As used in subsection (a), the term discrimi-

nate includes. . . (5)(A) not making reason-

able accommodations to the known physical

or mental limitations of an otherwise quali-

fied individual with a disability who is an

applicant or employee, unless such covered

entity can demonstrate that the accom-

modation would impose an undue hardship

on the operation of the business of such

covered entity. .. . 42 U.S.C. § 12112(b).

Disability

The term “disability” means, with respect to

an individual -

(A) a physical or mental impairment that

substantially limits one or more of the major

life activities of such individual;

(B) a record of such an impairment; or

ment. 42 U.S.C. § 12102(2).

Qualified Individual with a Disability

The term “qualified persons with a disabil-

ity” means an individual who, with or with-

out reasonable accommodation, can

perform the essential functions of the

employment position that such an individ-

ual holds or desires. 42 U.S.C. § 12111(8).

Reasonable Accommodation

The term reasonable accommodation may

include . . . (b) job restructuring, part time

or modified work schedules, reassignment

to a vacant position, acquisition or mod-

ification of equipment or devices, appropri-

ate adjustments or modification of

examinations, training materials or policies,

the provision of qualified readers or inter-

preters, and other similar accommodations

for individuals with disabilities. 42 U.S.C.

§ 12111(9).

Undue hardship

The term “undue hardship” means an

action requiring significant difficulty or

expense, when considered in light of the

following factors (i) the nature and cost of

the accommodation needed; (ii) the overall

financial resources of the facility involved

in the provision of the reasonable accom-

modation, the number of persons employed

at the 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

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 in question to the covered entity. 42

U.S.C. § 12111(10).

STATEMENT OF THE CASE

Basis for Federal District Court Jurisdiction:

Petitioner, Steve Middleton (“Middleton”) brought

suit against his former employer, Respondent, Ball-Foster

Glass Container Company. L.L.C. (“BFG”), claiming vio-

lations of the Americans with Disabilities Act of 1991, 42

U.S.C. § 12101 et seq. and the Anti-retaliation provision of

the Texas Workers’ Compensation Act, Tex. Lab. Code

Ann. § 451.001. Jurisdiction was proper in the United

States District Court for the Northern District of Texas

pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.

Facts Material to Consideration of the Questions Pre-

sented:

Steve Middleton began working for BFG in December

1988. (R 716) During his tenure, Middleton performed a

variety of jobs, including Floor Person/ Apprentice Oper-

ator, pallet loader, box maker, line attendant, auditor and

virtually all of the “cold end” jobs.! Id.

On May 30, 1996, Middleton injured his back on the

job. (R 717) Although injured, he did not miss time from

work or seek medical treatment until August 1996. Id. At

that time, company doctors, Dr. Bousquet and Dr. Garri-

son, initially evaluated Middleton’s back injury. Id. Dur-

ing the initial visits, Dr. Garrison of BaylorWorx (a

1 The plant was divided into the “hot end” and the “cold

end”. “Hot end” jobs involved forming molten glass into bottles

using machines. “Cold end” jobs involved inspecting, packing

and storing bottles. (R 716)

medical clinic where BFG employees are sent for treat-

ment of on-the-job injuries) stated that an MRI was an

expensive test and that if Middleton's back injury was

serious enough to warrant an MRI, Middleton would

have been unable to walk into Garrison’s office. (R 717,

743) Dr. Garrison released Middleton to return to work at

full duty on September 3, 1996. Id.

On September 7, 1996, a few days after resuming

work, Middleton was treated for back pain at the local

hospital emergency room and was referred to Dr. Bous-

quet for an MRI. Id. Dr. Bousquet excused Middleton

from work and, after the MRI, Middleton was diagnosed

with an 11-millimeter herniated lumbar disc at the L4-L5

level. Id. Middleton underwent surgical decompression of

the affected disc on January 15, 1997. (R 718)

In September 1996, Middleton filed a workers’

compensation claim for his May 30, 1996 injury, and

thereafter received workers’ compensation benefits. Id.

Middleton was later assigned a 20% impairment rating

resulting from the injury. /d.

In December 1997, Middleton performed an FCE

(Functional Capacity Evaluation) at BaylorWorx. Id. Then,

in January 1998, after being released for full duty by Dr.

Bousquet, Middleton returned to his Floor Person/

Apprentice Operator position. Id. After returning to

work, Middleton experienced back pain and swelling. Id.

Middleton changed doctors and began seeing Dr. Osborn,

who diagnosed post-laminectomy syndrome. (R 518, 719)

Dr. Osborn initially indicated that Middleton would need

to change jobs and placed him on permanent light duty

restrictions on March 27, 1998, including no lifting over

25 pounds or excessive bending, pushing and pulling. Id.

On March 27, 1998, Middleton provided Julia

Kirchner, BFG Human Resource Manager, his work

restrictions from Dr. Osborn. (R 719) Kirchner sent Mid-

dieton home and stated -that she would call him when a

job suited to his condition was open. Id.

Even with the restrictions, in March 1998, there were

available jobs which Middleton could have performed,

such as a repack job or Line Attendant, both “cold end”

jobs. Id. Both Middleton and Dr. Osborn maintained abil-

ity to do those jobs without accommodation. The repack

job involved bottle inspection, and the Line Attendant job

involved keeping the lines clear, sweeping glass and floor

cleaning. Id. Middleton was not offered either job or any

other job, either with or without reasonable accommoda-

tion. Id.

Because Middleton was not permitted to return to

work by BFG, on account of his disability and financial

need, Middleton then sought benefits through BFG’s dis-

ability plan. (R 720) Middleton completed a benefits form

and had Dr. Osborn complete the medical portion of this

form. (R 579-80, 720) Dr. Osborn indicated that Middleton

was not expected to return to his former job because BFG

had refused to return Middleton to that position. (R 580,

803-04) Although claiming on this form that there was no

work available due to his restrictions, Kirchner stated

that the validity of the claim should be questioned

because there were other types of work Middleton could

perform. (R 579-80)

According to Kirchner, Middleton was denied dis-

ability benefits because he had not been employed for ten

years. (R 720) Middleton did inform Dr. Osborn that he

was not eligible for disability benefits, but did not ask Dr.

Osborn to change his restrictions because of that. Id.

Kirchner maintained that she advised Middleton that he

was not eligible for disability benefits sometime prior to

May 8, 1998. Nevertheless, on May 8, 1998, Kirchner

authored a memo that she did not learn of Middleton's

ineligibility until May 8, 1998. (R 589, 601)

On May 4, 1998, Dr. Osborn examined Middleton and

revised his restrictions from permanent to temporary (for

8 weeks) effective May 8, 1998.2 (R 600, 720, 764-65) Dr.

Osborn also determined that Middleton would not need

to change jobs. (R 600) The revised restrictions included

no lifting over 25 pounds and no excessive bending,

heavy pushing or pulling. (R 600) With these restrictions,

Middleton would have been able to perform his previous

Apprentice Operator job with reasonable accommoda-

tions, such as having one of the Upkeeps assist him if he

needed assistance lifting or changing the molds. (R 720)

Middleton also could have been placed in a lighter job

such as repack or Line Attendant. Id.

2 In May 1998, Middleton also began seeing Richard

Raughton, D.O., for treatment of his back, and continues to see

him on an as needed basis (approximately every two months).

Dr Raughton opined that Middleton suffers from status post

lumbar laminectomy pain, and is substantially limited in major

life activities as a result of his impairment, including activities

requiring excess driving, walking, jogging and lifting weights.

(R 790-94)

Middleton again presented his work release to

Kirchner, who again refused to permit him to return to

work. Id. On this matter, Kirchner testified that:

she “thought it was unordinary that he [Mid-

dleton] had this miraculous change in condition,

that it was now temporary. Among other

things.”

(R 735) Kirchner elaborated that she was concerned about

the updated medical release, and that the temporary

restriction raised a “special flag” because she claimed to

have told Middleton that only employees with temporary

restrictions were given light duty. Jd. When Kirchner

received the May 8th restrictions from Dr. Osborn, which

were changed from permanent to temporary, she

exclaimed “Oh, what an interesting coincidence.” (R 736)

Kirchner, however, did not voice her alleged concerns to

Dr. Osborn or otherwise ask him to explain the reason for

the change in Middleton’s status. (R 803-06)

Dr. Osborn provided Middleton work releases for

temporary light duty on June 25, 1998 (for six weeks) and

again on July 27, 1998 (for eight weeks). (R 602-03, 720)

Middleton presented these work releases to Kirchner;

however, BFG continued to refuse to allow Middleton to

return to work. (R 720)

Almost five months after Middleton’s initial release

to return to work, in a letter dated August 10, 1998,

Kirchner wrote to Dr. Osborn and asked him to identify

certain jobs Middleton could perform based on job

descriptions which she provided. (R 604) The job descrip-

tions provided were detailed and included duties and a

‘job strength” inventory. (R 605-18) Kirchner did not ask

for details from Dr. Osborn supporting his opinions as to

any job he specified. Id.

As requested, on August 20, 1998, Dr. Osborn submit-

ted a list of at least five to six “cold end” jobs which

Middleton could have performed with his restrictions. (R

619) Rather than permitting Middleton to return to one of

these jobs, Kirchner wrote Dr. Osborn, and despite not

previously requesting details, now claimed that she

needed a detailed analysis of Middleton’s physical abili-

ties and another FCE from BaylorWorx. (R 620) Middleton

next contacted Kirchner to discuss what he needed to do

to return. (R 721, 726-31) Kirchner admitted that Osborn

had given her the answers she had asked for, but claimed

she still wanted more details to make sure Middleton

“could do every single thing in that job, and not just the

general well, yeah, he can do it....” (R 729)

Because Kirchner was now requesting another FCE,

Middleton called the workers’ compensation insurance

carrier and inquired if BaylorWorx had to perform the

FCE or could some other entity perform the analysis. (R

721) It was Middleton’s understanding from this conver-

sation that it did not matter where he had the FCE

performed, and that the computerized FCE machine at

Sargent Rehabilitation Clinic was state of the art. Id.

Middleton then called Kirchner and asked her if the FCE

could be performed at Sargent Rehabilitation. Id. Mid-

dleton did not want BaylorWorx to perform the FCE

because it employed the company doctor that had previ-

ously released him to return to full duty without per-

forming an MRI when he had a herniated disk. Id. Also,

BaylorWorx had only a manual FCE. (R 721, 743) Accord-

ing to Kirchner, she contacted the workers’ compensation

insurance carrier about having the FCE done at Sargent’s

and was informed that an FCE is an FCE. (R 737, 747)

Kirchner approved Middleton’s request to have Sargent’s

perform the FCE. (R 721, 747)

On September 23, 1998, Middleton had the FCE per-

formed by Sargent. (R 621, 721) Dr. Osborn signed the

FCE and it was submitted to Kirchner. (R 622) As a result

of the FCE, Dr. Osborn found Middleton capable of per-

forming the same five to six “cold end” jobs he had

previously approved. (R 622, 721)

Despite having the new FCE performed and Dr.

Osborn’s consistent opinion that Middleton was capable

of returning to work, Kirchner wrote to Dr. Osborn in

November 1998 and told him she needed further clarifica-

tion of the FCE results before she could return Middleton

to work. (R 629, 721) Dr. Osborn then agreed to make a

tour of the plant to observe the jobs. (R 738-41, 766-68)

Kirchner had represented during a grievance meeting

that to return Middleton to work, BFG just needed Dr.

Osborn to observe the jobs at the plant that Dr. Osborn

said Middleton could perform to be sure he could safely

perform them. (R 722, 773-76)

After touring the plant, Dr. Osborn concluded that

Middleton could return to work as a Floor Person/

Apprentice Operator if he did not have to change the

molds. (R 630, 722) Dr. Osborn also stated that Middleton

could perform various “cold end” jobs (lehr sampler,

repack and auditor) if he did not have to lift heavy rolls

of plastic or perform excessive bending. Id. Middleton

could also still have performed the Line Attendant job. (R

722) Dr. Osborn later testified that after touring the plant,

he believed Middleton could perform the Floor Person

job because it was a lighter job than he had envisioned

(and it became lighter after he learned that the molds did

not have to be removed intact). (R 801-03)

Still allegedly not satisfied with Dr. Osborn’s release

after the plant tour, Kirchner again did not return Mid-

dleton to work. (R 722) Kirchner told Middleton there

was no light duty work available and that he could not

return to his former job. Id. This was simply not true. Id.

During Middleton’s employment with BFG prior to his

3 The Floor Person/Apprentice Operator job occasionally

involves working with molds which actually shape the bottle. (R

722) The molds come in various sizes for making 7 ounce, 12

ounce, 32 ounce and 40 ounce bottles. Id. The molds for making

the 12 ounce and 32 ounce bottles were the most commonly used

molds during 1998 and 1999. (R 754) Regardless of the size of

the mold, the mold separates into three parts. (R 722) The 32

ounce mold weighs 55 pounds total, with each part weighing 24

pounds, 24 pounds and 7 pounds. (R 753) The 12 ounce mold

weighs 50 pounds total, with each part weighing 22 pounds, 22

pounds and 6 pounds. (R 754) The 40 ounce mold weighed a

little more than the 32 ounce mold and the 7 ounce mold

weighed a little less than the 12 ounce mold. (R 759) When

working with the molds, a four wheel cart is used to transport

the mold to the oven. (R 722) The mold is removed by the

Operator or the Upkeep by sliding. Id. The mold is then broken

apart, cleaned, rolled to the machine and installed. Id. When

removing the mold from the machine, it must be removed in

pieces, as opposed to as a single unit. Id. Significantly, when

touring the plant, Dr. Osborn observed the molds in one piece ~

and was not informed by his guide that the molds could be

broken down into three parts. (R 767-68) Also, when Middleton

worked as an Apprentice Operator (prior to his injury), an

Upkeep, who was regularly available, often performed the mold

change for him. (R 722)

May 1996 injury, Middleton had worked light duty jobs.

Id. Middleton also observed other employees performing

light duty work, including repack work and painting. Id.

Also, according to Milford Jordan, a plant employee,

during 1998 and 1999 there were light duty jobs being

performed. (R 755-57) Jordan recalled at least two

employees who were permitted to stay in the office on

light duty, and another employee who was permitted to

paint. Id. Union Officer Darrell Grounds testified that

during the first quarter of 1999, there were vacancies

being filled with employees on iay off status, and that

Middleton should have been eligible for recall, at least for

part-time work. (R 782-85, 786) Grounds also recalled at

least two employees who were working on light duty

during 1999. (R 786) Kirchner admitted that light duty is

provided at the discretion of the company, and that there

is no policy requiring time limits on the availability of

light duty. (R 744-45)

On July 26, 2000, two and a half years after his initial

work release and after this litigation was filed, with no

changes in his physical restrictions, Middleton was

offered reinstatement by BFG. (R 600, 630, 665, 724) Mid-

dleton returned to work on August 2, 2000, and has

worked in repack and as a Line Attendant (jobs he had

requested as early as Spring 1998). (R 719, 724)

ARGUMENT: REASONS FOR

ALLOWANCE OF THE WRIT

1. The Fifth Circuit’s Opinion utilizes this Court's

opinion in Toyota Motor Mfg., Ky., Inc. v. Wil-

liams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615

(2002) to hold that an employee, who is prohib-

ited by his employer from performing a variety

of jobs as a result of a work-related disability

for which he is otherwise qualified,

is not disabled reasoning that despite the

employee’s ability and willingness to work,

Toyota extinguishes the employer's liability for

regarding the employee as being too disabled to

work with or without reasonable accommoda-

tion. If that is the law, then every employer

could refuse to permit any disabled employee

from returning to work by simply claiming that

the employee cannot work.

The district court granted summary judgment on

Middleton’s ADA claims after determining that Mid-

dleton, although arguably perceived as being disabled by

BFG, was not an otherwise qualified individual with a

disability and was not retaliated against by BFG. (Appen-

dix C). After hearing oral arguments on December 6,

2001, the Fifth Circuit subsequently affirmed the district

court’s granting of summary judgment in a January 16,

2002 Opinion. (Appendix A at App. 1-2) In affirming

summary judgment the Fifth Circuit relied on this Court's

Opinion in Toyota Motor Mfg., Ky., Inc. v. Williams, 534

U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). (App. 2) In

a three-paragraph, six sentence Opinion citing Toyota, the

Fifth Circuit held that the inability to perform a particular

job does not constitute a substantial limitation on the

major life activity of working, despite Middleton’s ability

to perform several jobs with and without accommoda-

tion. The Fifth Circuit also concluded that Middleton was

not perceived as disabled even though the district court

concluded Middleton was perceived as disabled by BFG.

(App. 2, App. 27-29)

Notably, in its haste to dismiss the case under Toyota,

the Fifth Circuit did not address the district court’s find-

ing (and ignored Middleton’s supporting summary judg-

ment evidence) that summary judgment was not

warranted because of BFG’s perception of Middleton as

being disabled as defined by 42 U.S.C. § 12102(2)(C).

(App. 1-2, 27-29) Instead, the Fifth Circuit extended

Toyota from a case resolving the proper standard for

assessing whether an individual is substantially limited

in performing manual tasks for purposes of defining

disability under 42 U.S.C. § 12102(2)(A)* to a case that

somehow also disposes of claims involving an employee

who is clearly regarded by the employer as being dis-

abled under 42 U.S.C. § 12102(2)(C), even though the

employee and his physician maintained the employee

was “otherwise qualified”. The Fifth Circuit’s opinion

further nullifies the interactive process of determining

reasonable workplace accommodation. There is simply no

basis for the Fifth Circuit’s application of Toyota to cases

involving a “regarded as” disability and this Court

should grant review to prevent the requirement of the

interactive workplace accommodation process from

becoming a mockery. 7

4 See Toyota, 122 S.Ct. at 689, 690.

In addition to erroneously extending Toyota to

“regarded as” disability cases, the Fifth Circuit’s declara-

tion that, based on Toyota, an inability to perform a partic-

ular job does not substantially limit the major life activity

of working is nonsensical and constitutes a significant

error in the law. First, Toyota involved the assessment of

an inability on the major life activity of performing man-

ual tasks, not working. Toyota, 122 S.Ct. 689, 690. More-

over, the Court in Toyota specifically stated that it was not

ruling on the inherently difficult question of whether

“working” constituted a major life activity. Toyota, 122

S.Ct. at 692.

Additionally, the Fifth Circuit ignored Middleton's

evidence that he would have been able to perform his

former job and many other available jobs had he been

provided reasonable accommodations by BFG. Middleton

attempted to return to work for over two years, but was

prevented from doing so by BFG’s ever-changing and

never-ending prerequisites which prevented Middleton's

return to work. It was this very evidence of BFG’s

repeated refusal to return Middleton to work, despite his

multiple releases from his doctor, that the district court

found could support a finding that Middleton was

“regarded as” being disabled by BFG. This evidence

should have precluded summary judgment rather than

prompting it somehow under Toyota.

Correction by this Court of this clear misinterpreta-

tion by the Fifth Circuit is proper and necessary to avoid

future summary dismissals of ADA cases involving

“regarded as” employees who attempt to return to work

after a disabling on-the-job injury.

2. The Opinions of the District Court and the Fifth

Circuit once again lay credence to the practice of

granting summary judgment in an employment

discrimination claim by ignoring competent

summary judgment evidence submitted by a

non-movant employee (particularly testimony

of the employee) and accepting evidence of the

movant-employer as true. The opinions ignore

this Court’s holding in Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct.

2097, 147 L.Ed.2d 105 (2000) regarding the quan-

tum of proof required in an employment dis-

crimination case. Such deviation from the

accepted and usual course of proceedings under

Fed. R. Civ. P. 56 and the rules of law mandated

by this Court leaves uncertain the role of the

trial court, the viability of Reeves, the burden of

the nonmovant in a summary judgment pro-

ceeding in an employment discrimination case

and an employee’s ability to properly evaluate

the unlawful conduct of the employer; there-

fore, review by this Court is warranted.

3. The Opinions of the district court and the Fifth

Circuit transform the interactive process under

the ADA as a means to effectuate rather than

prevent discrimination which warrants review

by this Court.

In addition to improperly applying Toyota, the Fifth

Circuit further stated that summary judgment was

“essentially” affirmed for the reasons stated by the dis-

trict court. (App. 2) This approval of the district court’s

opinion once again exemplifies the Fifth Circuits pro-

clivity for deviating from the basic summary judgment

burdens of proof as set forth in Fed. R. Civ. P. 56 and by

Nera es ee

this Court in cases such as Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105

(2000). Applying the proper summary judgment stan-

dards, summary judgment was improper in this case.

Middleton plainly established material fact issues

regarding his ability to establish a prima facie case of

disability discrimination. To establish a prima facie case of

discrimination under the ADA, the employee must show

that “[h]e is a qualified individual with a disability and

that the negative employment action occurred because of

the disability.” See Giles v. General Electric Co., 245 F.3d

474, 483 (5th Cir. 2001), quoting Sherrod v. American Air-

lines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998). The ADA

defines disability as follows: (A) a physical or mental

impairment? that substantially limits one or more of the

major life activities of such individual; (B) a record of

such an impairment; or (C) being regarded as having an

impairment.® 42 U.S.C. § 12102(2).

5 A “physical impairment” includes any physiological

disorder, or condition, cosmetic disfigurement or anatomical

loss affecting one or more of the following body systems:

neurological, musculoskeletal. .. . Sutton v. United Air Lines, Inc.,

119 S.Ct. 2139, 2145 (1999). It was undisputed that Middleton

has a physical impairment to his back. (R 387, 788-97)

6 An individual may be regarded as having a disability if:

(1) the employer mistakenly believes that an employee has a

physical impairment that substantially limits one or more major

life activities; or (2) an employer mistakenly believes that an

actual nonlimiting impairment substantially limits one or more

major life activities. Sutton, at 2149-50.

BFG moved for summary judgment claiming that

Middleton was not “disabled.” (R 387-90) Although find-

ing that Middleton did not have an impairment which

substantially limited major life activities or a record of an

impairment,’ the district court properly held that fact

7 This was error, but did not warrant summary judgment

because the district court found fact issues as to whether

Middleton was “disabled” under the “regarded as” element of

the definition. (R 911-12) There were, however, fact issues

regarding whether Middleton was substantially limited in

major life activities which would also have precluded summary

judgment. The ADA regulations define a “major life activity” to

include “functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.” 29 C.F.R. § 1630.2(i) (1996); Sutton, at

2145. An individual is “substantially limited” if he is unable to

perform a major life activity that the average person is able to

perform, or is significantly restricted as to the condition,

manner or duration under which an individual can perform a

particular major life activity as compared to the average person

in the general population. 29 C.F.R. § 1630.2(j)(i)(ii) (1996);

Sutton at 2145. There were fact issues that Middleton was

disabled because he has a physical impairment (post

laminectomy syndrome from an on-the-job injury which

required back surgery) that substantially limits major life

activities, i.e., lifting, bending, pushing, pulling, walking,

driving and jogging. (R 600, 793-94, 797) Middleton also has a

20% impairment rating. (R 718) Also, Middleton’s medical

records indicate he has an impairment that substantially limits

major life activities; therefore, he is “disabled” because he has a

“record of a disability”. (R 600, 793-94, 797) The district court

reiterated precedent from the Fourth Fifth and Eight Circuits

that a 25-pound “lifting” restriction, as a matter of law, is not a

substantial limitation on a major life activity. (App. 23-24) Such

a holding is clearly belied by logic and determinations of what

is substantially limiting to major life activities should be

evaluated on a case by case basis.

issues existed as to whether BFG “regarded” Middleton

as being disabled. (R 907-12) This finding however was

disregarded by the Fifth Circuit utilizing Toyota. (App.

20-22). BFG argued that it did not “regard” Middleton as

disabled because it only viewed him as unable to perform

his prior job, but was willing to put him in other posi-

tions. (R 390) If this had been true, however, Middleton

should have been permitted to return to work long before

August 2, 2000. Instead, BFG advanced one excuse after

another denying and delaying Middleton’s return to

work and repeatedly claimed to need more information to

protect BFG from liability. (R 742)

As the district court correctly held, a jury could reject

BFG’s claimed need for more medical testing as pretex-

tual because Middleton’s doctor had previously provided

evidence of his ability to work. (R 911-12) In fact, Dr.

Osborn had performed an FCE, toured the plant, pro-

vided work releases and specified at least five jobs in

addition to his former job that Middleton could perform.

(R 600, 602-03, 619, 621-22, 630, 719-22, 764-65) BFG’s

two-plus year delay in returning Middleton to work

despite repeated work releases and information from his

doctor provided evidence upon which a fact finder could

conclude that BFG “regarded” Middleton as disabled;

therefore, summary judgment was properly denied on

this point. Contrary to the Fifth Circuit’s opinion, there is

nothing in Toyota which would support a finding other-

wise.

The Fifth Circuit stopped short of evaluating the

issue of whether summary judgment was improper based

on the district court’s determination that Middleton was

not a “qualified individual with a disability.” (App. 1-2)

Again, improperly using Toyota as a blanket to extinguish

all claims, the Fifth Circuit then claimed that the sum-

mary judgment was otherwise affirmed for “essentially”

the same reasons set forth in the district court’s opinion.

The Fifth Circuit’s Opinion leaves open to interpretation

just what portions of the district court’s opinion were

“essentially” approved, the “otherwise qualified” issue

included.

To avoid summary judgment on the “otherwise quali-

fied” issue, Middleton need only have shown (1) that he

could perform the essential functions of the job, or (2)

that a reasonable accommodation of his disability would

have enabled him to perform the essential functions of

the job. Turco v. Hoechst Celanese Co., 101 F.3d 1090, 1093

(5th Cir. 1997). A “qualified individual with a disability”

is an individual who, with or without reasonable accom-

modation, can perform the essential functions of the

employment position that such an individual holds or

desires. 42 U.S.C. § 12111(8).

The district court held, with the “essential” approval

of the Fifth Circuit, that Middleton was not “otherwise

qualified” because he was unable to perform essential

functions (mold changes) of his job without assistance,

and that assistance as an accommodation was unreason-

able as a matter of law. (R 913) To the contrary, there were

fact issues regarding whether Middleton would even

need extra assistance changing the molds because the

molds could be separated into three manageable pieces

(most weighing less than 25 pounds, within Middleton’s

restrictions) for changing.® (R 722) Also, contrary to the

district court’s finding that use of an Upkeep to assist in

mold changes, was unreasonable because it would create

additional work, Middleton testified that even before his

injury, an Upkeep regularly assisted him with mold

changes. (R 722, 914) Thus, the evidence demonstrated

that Middleton would not need assistance with most

mold changes (with the possible exception of the rarely

used larger 40 oz. mold), and for those that he did need

some assistance with, use of an Upkeep would not cause

any additional work. (R 722) There was clearly evidence

that Middleton could have performed his former position

even with his restrictions and without imposing addi-

tional work on others.

Also, there were at least five other “cold end” jobs

identified by Dr. Osborn which Middleton could have

performed, but which were not offered by BFG. (R 619,

721) Light duty was available and offered to other

employees during 1998 and 1999. (R 744-45) In dismissing

this evidence, the district court held that BFG was not

obligated to place Middleton in another job, even though

with the state of the record, a refusal to do so was

evidence of different treatment. (R 915) This ignores the

ADA requirement that employers make reasonable

accommodations, which may include reassignment to a

vacant position including light duty. See Loulseged v. Azko

Noble, Inc., 178 F.3d 731, 734 (5th Cir. 1999); 42 U.S.C.

8 When Middleton’s doctor initially placed the “no mold

changing” restriction on him, he did not realize, and had not

been told during the plant tour, that the molds did not have to

be changed in one piece. (R 767-68)

§§ 12111(9), 12112(a), 12112(b)(5). The district court and

the Fifth Circuit declined to recognize the violation

despite clear evidence of other jobs Middleton could per-

form which were open. (If they were not, there was no

reason for Kirchner to nit-pick Dr. Osborn.) For an accom-

modation of reassignment to be reasonable, the position

must exist and be available, and the employee must

request and be qualified for the position. Foreman v. Bab-

cock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997); Burch

v. City of Nacogdoches, 174 F.3d 615, 622 (5th Cir. 1999).

Middleton repeatedly requested to be returned to

work in a variety of available positions for which he was

qualified (including light duty which was offered to other

employees). (R 719-24, 755-57, 782-86) Although seniority

may have prevented Middleton from returning to a “cold

end” job for a period of time, this would not have pre-

vented him from working in the interim in light duty jobs

(which were available at BFG’s discretion with no policy

limit on time) or in other jobs being filled by recalled

employees in early 1999. (R 744-45, 782-86) The district

court improperly rejected Middleton’s evidence of other

available jobs as being only bald assertions by Middleton,

insufficient and in conflict with BFG’s claims that light

duty was only temporary and for those who were

expectéd to return to work without permanent restric-

tions. (R 915-16) That Middleton’s evidence conflicted

with BFG’s assertions should have precluded summary

judgment. Reeves v. Sanderson Plumbing Products, Inc., 120

S.Ct. 2097, 2109 (2000); Russell v. McKinney Hospital Ven-

ture, 235 F.3d 219, 223 (5th Cir. 2000). Instead, the district

court, with the “essential” approval of the Fifth Circuit,

improperly determined that based on BFG’s “rationale”

that light duty was temporary (despite Kirchner’s admis-

sion to the contrary), there was no reason to return Mid-

dleton to work. (R 916) To the contrary, based on

Middleton’s controverting evidence of his ability to work,

the removal of his restrictions as permanent, his repeated

efforts to return to work, Kirchner’s inquiry regarding his

ability to perform other jobs and the availability of other

work, a factfinder could have rejected BFG’s claimed

“rationale” as pretext for ADA discrimination or retalia-

tion. St. Mary’s Honor Center v. Hicks, 113 S.Ct. 2742,

2752-53 (1993); Reeves at 2108-09; Russell at 223 (proof that

the employer’s stated reason for the adverse employment

action taken is false is a form of circumstantial evidence

that is probative of intentional discrimination.)

The district court, and the Fifth Circuit, erred in

rejecting Middleton’s evidence which controverted BFG’s

claimed reason for failing to return him to his former job

or other jobs. (App. 2; R 915-16) Such evidence included

Middleton’s testimony, testimony of a union officer, testi-

mony of a plant worker, testimony of Dr. Osborn and

Kirchner’s testimony regarding the availability of light

duty at BFG’s discretion with no time restrictions. (R 722,

744-45, 755-57, 782-86) This evidence controverts BFG’s

claims that Middleton was unable to perform his former

job and that other jobs were not available and is sufficient

to defeat summary judgment. See Evans v. City of Bishop,

238 F.3d 586, 590 (5th Cir. 2000) (summary judgment not

proper where employee challenges the employer’s claims

and puts forth evidence aside from subjective belief, even

if it consists solely of employee’s testimony); Vance v.

Union Planters Corp., 209 F.3d 438, 442 & n.3 (5th Cir.

2000) (even if evidence consists solely of plaintiff's testi-

mony, discrimination may be established).

With the evidence from Middleton and others of

Middleton’s ability to work, available jobs for which Mid-

dleton was qualified prior to August 2000 and BFG’s

refusal to return him to work, a jury could have reason-

ably found that Middleton was an otherwise qualified

individual with a disability, that BFG failed to reasonably

accommodate him and failed to do so for pretextual rea-

sons in violation of the ADA;? therefore, it was error to

grant and affirm summary judgment on Middleton’s

ADA claim. Reeves; Russell; Evans; and Blow v. City of San

Antonio, 236 F.3d 293, 298 (5th Cir. 2001) (summary judg-

ment precluded where employee establishes prima facie

case, creates issue of disputed fact as to whether

employers stated reason is false and there are no unusual

circumstances which would prevent a factfinder from

concluding that the stated reasons were discriminatory).

BFG also claimed that Middleton could not establish

a prima facie case of ADA retaliation. A prima facie case of

retaliation is established when there is a causal connec-

tion between an adverse employment action and an

employee’s participation in a protected activity. Seaman v.

CSPH, Inc., 179 F.3d 297 (5th Cir. 1999). For over two

° Aside from disputing the evidence of a prima facie case of

ADA discrimination, BFG did not move for summary judgment

on the issue of pretext and the court did not grant summary

judgment on that issue. (R 387-93, 912) Even had BFG moved on

that ground, the evidence as discussed above and below, sets

forth material fact disputes on the falsity of the stated reason for

failing to return Middleton to work and pretext which would

preclude summary judgment on the ADA discrimination claim.

years Middleton repeatedly requested reasonable accom-

modations which would enable him to return to work. (R

719-24) Each request for accommodation was followed by

either a flat denial or a request from BFG for more infor-

mation. Id. Despite work releases and repeated provision

of information, BFG refused to permit Middleton to

return to work. Id. As such, summary judgment was not

proper on this claim.

The district court held, with “essential” approval of

the Fifth Circuit, that even assuming Middleton estab-

lished a prima facie case of ADA retaliation, the evidence

failed to demonstrate fact issues regarding retaliation

under the ADA. (App. 2; R 917-19) Middleton, however,

was clearly discriminated and retaliated against in viola-

tion of the ADA when, as previously set forth, he was

repeatedly denied reasonable accommodations for his

disability and even a return to work without accommoda-

tions. (R 719-24) BFG nullified the interactive process and

refused to make reasonable accommodations for Mid-

dleton for over two years. Id. When Middleton initially

presented for work, he was sent home. (R 719) When he

presented an additional work release in early May 1998,

he was again sent home. (R 720) Kirchner exhibited open

hostility toward the work releases and claimed to be

“concerned” about a “miraculous” change from perma-

nent to temporary restrictions. (R 735) Rather than

addressing her alleged “concerns” with Middleton’s doc-

tor, Kirchner instead opted simply not to permit Mid-

dleton to return to work.!° (R 803-06) Middleton

10 Contrary to the district court’s finding, and the Fifth

essential” approval, there was nothing contradictory

’ us

Circuit’s

presented work releases again in June and July 1998 to no

avail. (R 720) In August 1998, after 4 work releases,

Kirchner invited Dr. Osborn to identify jobs which Mid-

dleton could perform. (R 604) Although it was undis-

puted that Dr. Osborn complied with her request and

identified 5 to 6 potential jobs, Kirchner still refused to

permit Middleton to return to work. (R 721, 729) Instead,

as a further delay, she then sought details on how Mid-

dleton could perform every single task, along with an

FCE (not to mention, if the jobs were not available, then

Kirchner was wasting everyone’s time and effort). Id.

After the FCE, Kirchner still claimed to need further

explanation about Middleton’s abilities. (R 629, 721) Dr.

Osborn toured the plant after Kirchner had represented

that this would enable Middleton to return to work. (R

722, 738-41, 766-68, 773-76) Dr. Osborn reconfirmed his

previous opinion of which jobs could be performed, but

still claiming not to be satisfied, Kirchner did not permit

Middleton to work. (R 722) Instead, BFG had its own

work site assessment performed and continued to delay

(for well over another year) Middleton’s clearance for

work, raising issues of an alleged need for a medical

authorization and another FCE (all of which had been

about Dr. Osborn’s records, i.e., the diagnosis of post-

laminectomy syndrome remaining the same or the fact that

Middleton will have some permanent disability, but that some

restrictions may change. (R 506-07, 514, 600, 602-03, 918) The

absurdity of the district court’s opinion is obvious. To accept it,

means that no one’s health ever improves in the eyes of the

federal judiciary. If there was an issue on Dr. Osborn’s

credibility or the legitimacy of BFG’s rejection of Dr. Osborn’s

opinion, it should have been left for the factfinder to weigh.

Russell at 233.

previously provided). (R 631-32, 635-36, 640, 642, 652,

656-60, 723-24)

Middleton was finally returned to work in a “cold

end” job on August 2, 2000, and has since worked in the

very jobs he had requested over two years earlier. (R 724)

After suit was filed, BFG belatedly abandoned the long

‘standing and ongoing microscopic analysis of all ele-

ments, not just the essential elements of the jobs in ques-

tion. Although BFG attempted to place the blame for

Middleton’s delay in returning to work on Middleton,

this delay was plainly caused by BFG’s refusal to honor

Middleton’s multiple work releases dating as far back as

March 1998. Regardless of the obstacles breached by Mid-

dleton, one pretextual excuse after another was concocted

to preclude his return to work.

In affirming summary judgment in this case, the Fifth

Circuit also obfuscates the issue of the sufficiency of the

proof necessary to defeat summary judgment in an

employment discrimination case. Middleton's evidence

was ignored and BFG’s contradictory evidence was

embraced. Review by this Court is proper to reiterate the

quantum of proof necessary in a summary judgment pro-

cess in an employment discrimination case.

Additionally, because BFG’s conduct nullified the

ADA’s interactive process, a reasonable factfinder could

easily infer that Middleton was discriminated and retali-

ated against in violation of the ADA. See Loulseged v. Akzo

Noble, Inc., 178 F.3d 731, 735-36 (5th Cir. 1999), citing

Taylor v. Principal Financial Group, 93 F.3d 155 (5th Cir.),

cert. denied, 117 S.Ct. 586 (1996). When an employer's

unwillingness to engage in the interactive process leads

to a failure to reasonably accommodate, the employer

violates the ADA. Loulseged at 736, citing Taylor at 165.

The duty to launch the interactive process is triggered by

the request for a reasonable accommodation and the

responsibility for the interactive process is shared

between the employee and the employer. Loulseged at 736,

citing Taylor at 165. An employer does not meet its duty of

participating in the interactive process to determine

whether reasonable accommodations could be made

when the dialogue consists of the employer telling the

employee there are no positions they could perform.

Loulseged at 738 (a declaration by an employer that no

reasonable accommodations will be made is a breakdown

in the interactive process). Likewise, a party that delays

the interactive process is responsible for the breakdown.

Loulseged at 737, fn. 6. BFG’s conduct here hardly qualifies

as a good faith participation in this process, nevertheless

the district court somehow found that BFG demonstrated

a willingness to resolve the questions of Middleton’s

fitness for work by frequently initiating correspondence

between the parties. (App. 38) BFG’s alleged “initiating”,

however, could equally have been viewed by the fact-

finder as repeated attempts to erect pretextual obstacles

—to preclude Middleton’s return to work.

By affirming summary judgment in this case, the

Fifth Circuit also condoned BFG’s failure to engage in

good faith in the interactive process and essentially

leaves open the ability of employers to freely violate the

ADA by preventing disabled employees from returning

to work by simply indefinitely imposing one requirement

after another on the employee. The district court and

Fifth Circuit have effectively turned the interactive pro-

cess into a tool to promote discrimination by the

employer who chooses to never end the process. Reversal

of the transformation of the interactive process from an

aid against discrimination to a means to openly discrimi-

nate warrants review by this Court.

CONCLUSION

The Middleton opinion exemplifies the need for guid-

ance for courts to follow in determining the proper appli-

cability of Toyota to disability cases wherein the employee

is “regarded as” being disabled by the employer. Far from

a fact specific ruling, the Middleton opinion clearly neces-

sitates review by this Court to prevent further erroneous

dismissals in cases where the employee is regarded as

being disabled by the employer, desires to return to work,

but the employer constructs one obstacle after another to

prevent the return to work. Review is appropriate in this

case to address the denigration of the interactive process

involved in workplace accommodation and the Fifth Cir-

cuit’s justificatior of that deneigration under the guise of

this Court’s opinion in Toyota.

WHEREFORE, Petitioner, Steve Middleton, respect-

fully prays that the Court grant Petitioner’s Writ of Cer-

tiorari, reverse the judgments of the Fifth Circuit and the

district court with instructions to remand the case for

trial on the merits.

Respectfully submitted,

JOHN E. WALL, Jr.

LaurA EARDLEY CALHOUN

Law Offices OF JOHN E. WALL, Jr.

5728 Prospect Avenue

Suite 2001

Dallas, Texas 75206

(214) 887-0100 Telephone

(214) 887-0173 Facsimile

Attorneys for Petitioner,

Steve Middleton

MRA aes

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No 01-10329

STEVE MIDDLETON,

Plaintiff-Appellant,

VERSUS

Bat-Foster GLass CONTAINER Company, L.L.C.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

No 3:99-CV-964-P

(Filed Jan. 16, 2002)

Before Jotty, SMITH, and BENAVIDES, Circuit Judges.

Per CurIAM:*

Steve Middleton appeals a summary judgment on his

claims of discrimination and retaliation under the Ameri-

cans with Disabilities Act and retaliation under the Texas

Labor Code. We have reviewed the briefs and pertinent

portions of the record and have heard the arguments of

counsel.

* Pursuant to 5TH Cir. R. 47.5, the court has determined that

this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH Cr. R.

47.5.4.

App. 2

We conclude that the district court was correct in

ascertaining that Middleton was neither disabled nar per-

ceived as such and that there was no retaliation. The

inability to perform a particular job does not constitute a

substantial limitation on the major activity of working.

See generally Toyota Motor Mfg., Ky., Inc. v. Williams, No.

00-1089, 2002 U.S. Lexs 400 (U.S. Jan. 8, 2002).

The summary judgment is AFFIRMED, essentially for

the reasons given by the district court in its comprehen-

sive memorandum opinion and order entered on Febru-

ary 2, 2001.

App. 3

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STEVE MIDDLETON,

Plaintiff,

BALL-FOSTER GLASS

CONTAINER CO., L.L.C.,

Defendant.

NO. 3:99-CV-0964-P

MMMM MM MM

FINAL JUDGMENT

(Filed Feb. 5, 2001)

Pursuant to the Court’s Memorandum Opinion and

Order filed February 2, 2001, the Court issues judgment

as follows:

It is ORDERED ADJUDGED and DECREED that,

1. Plaintiff Steve Middleton shall take nothing from his

claims against defendant The Ball-Foster Glass Container

Co., L.L.C. ;

2. Accordingly, costs incurred by the defendant, shall be

assessed against plaintiff.

IT IS SO ORDERED.

Signed this 2nd day of February, 2001 at Dallas,

Texas.

FINAL JUDGMENT

App. 4

/s/ Jorge A. Solis

JORGE A. SOLIS

UNITED STATES DISTRICT

JUDGE

NORTHERN DISTRICT OF

TEXAS

App. 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STEVE MIDDLETON, § CIVIL ACTION NO.

Plaintiff, § 3:99-CV-0964-P

BALL-FOSTER GLASS

CONTAINER CO., L.L.C.,

Defendant.

MmMMmMmMmMmM

MEMORANDUM OPINION AND ORDER

(Filed Feb. 2, 2001)

Now before the Court are Defendant’s Rule 56

Motion for Summary Judgment and Rule 12(b)(1) Motion

to Dismiss, Plaintiff's Response to Defendant’s Motion to

Dismiss and for Summary Judgment, and Defendant’s

Reply to Plaintiff’s Response to Defendant’s Rule 56

Motion for Summary Judgment and Rule 12(b)(1) Motion

to Dismiss. The Court has considered Defendant’s

present motion and, for the reasons discussed herein,

hereby DENIES Defendant’s Motion to Dismiss and

GRANTS Defendant’s Motion for Summary Judgment.

BACKGROUND

Plaintiffs’ Complaint alleges that Defendant violated

the Americans with Disabilities Act, 42 U.S.C. § 12101, et

seq. (“ADA”), by failing to reasonably accommodate him,

unlawfully “refus[ing] to permit Plaintiff to return to

work on or after March 27, 1998 although released by his

App. 6

doctor, and retaliation”. Plaintiff also alleges a violation

of Texas Labor Code § 451.901 for discrimination against

Plaintiff because he filed a worker’s compensation claim

in good faith.

Plaintiff is represented by the Glass, Molders, Pottery

Plastics & Allied Workers Union, AFL-CIO, CLC (“the

Union”). On October 16, 1998, the Union filed a grievance

on Middleton’s behalf, alleging contractual violations.’

Pursuant to the grievance under the National Labor Rela-

tions Act, 29 U.S.C. §§ 151, et seq. (“NLRA”), an arbitra-

tion was held before a mutually selected neutral. On July

11,2000 the arbitrator issued his Award denying the

grievance.

FACTS

Ball-Foster’s Waxahachie plant manufactures glass

bottles. Prior to his injury, Plaintiff was employed as a

floor person/apprentice operator in the part of the plant

where molten glass is formed by machines into bottles,

known as the “hot end;” the “cold end” is the part of the

plant where the bottles are inspected, put into boxes,

stored in a warehouse, etc.? Prior to becoming a floor

person/apprentice operator, Plaintiff worked at various

jobs in the cold end.4

1 Def’s App. at 11.

2 Def’s App. at 59.

3 Def’s App. at 16-18, 20-23.

4 Def’s App. at 16-18, 20-23.

ities...

App. 7 | -

On May 30, 1996, Plaintiff suffered a back injury on

the job, and later took an extended medical leave of

absence for surgery and recovery/rehabilitation.© In

August of 1996, Middleton was seen by two company

doctors: Dr. Bousquet, and Dr. Garrison of Baylorworx (a

medical clinic where Defendant sends employees to treat

on the job injuries), for an evaluation of his back injury.°

Dr. Garrison evidently declined to give Plaintiff an MRI,

thinking it an unnecessary expense, and released Plaintiff

to work with no restrictions on September 3, 1996.” Plain-

tiff provided his release to Defendant and resumed work-

ing. On September 7, Plaintiff went to the emergency

room to treat his back pain; he was then referred to Dr.

Bousquet for an MRI.® Dr. Bousquet removed Plaintiff

from work, an MRI was performed, and Middleton

underwent back surgery to treat a herniated disk.’ In

September 1996, Plaintiff filed an Employee’s Notice of

Injury and Claim for Compensation with the Texas

Worker’s Compensation Commission (TWCC) and began

receiving benefits.1° In October 1997, Middleton had a

Functional Capacity Evaluation (FCE) performed at

Baylorworx at Dr. Bousquet’s recommendation.!!

Plaintiff was released to work with no restrictions by

Dr. Bousquet, and returned to work on January 5, 1998 in

5 Def’s App. at 60-64.

6 Pl’s App. at 2, 28.

7 Pl’s App. at 2.

8 Pl’s App. at 2.

9 Pl’s App. at 2-3.

10 Pl’s App. at 3.

11 P]’s App. at 3.

App. 8

his floor person/apprentice operator position, an absence

of 15 months.!2 The next day, Plaintiff’s supervisor evi-

dently singled out Middleton for a verbal warning for his

performance, and placed him on a machine he was unfa-

miliar with; a writeup for poor performance followed.}%

Plaintiff experienced pain and back swelling, and on

March 2, 1998, Plaintiff changed his “treating doctor”

upon approval from the TWCC to Charles Osborn, a local

chiropractor.!4 Dr. Osborn’s initial medical opinion was

that Plaintiff had permanent work restrictions, meaning

they lasted “forever.”!5 Plaintiff Middleton understood

that Doctor Osborn’s restrictions were permanent, but

that he might be able to do a cold end job.!6 Julia

Kirchner, Defendant’s Human Resources Manager, evi-

dently also understood the restrictions to be permanent.?”

Dr. Osborn wrote an Employee’s Work Limitation Slip for

Middleton to give to Defendant, and recommended a

“badge change,” or permanent job reassignment.!§

Around March 27, 1998, Plaintiff was released to work

permanent light duty.!9 Plaintiff was diagnosed with

post-laminectomy syndrome and was restricted by his

doctor from lifting over 25 pounds, excessive bending,

Pl’s App. at 3; Def’s App. at 85.

13 Pl’s App. at 3-4.

14 Def’s App. at 99; Pl’s App. at 4.

15 Def’s App. at 100, 152.

16 Def’s App. at 86, 87, 30-31, 94-95.

17 Def’s App. at 182-84.

18 Def’s App. at 114, 134, 153-157.

19 Def’s App. at 172 (Pl’s Answers to Interrogatories).

App. 9

and heavy pushing and pulling.?° Plaintiff then

attempted to return to work and presented his release to

Human Resources Manager Julie Kirchner, who told

Plaintiff to go home and that she would call him when

they had a job for him.?!

On April 15, 1998, Middleton filled out a “Statement

of Claim For Continuance of Life Insurance Protection

During Total Disability” through which Dr. Osborn indi-

cated Plaintiff was totally disabled for his regular occupa-

tion, so that he could never return to work in his regular

occupation.22 However, a second employee work limita-

tion slip of May 8, 1998 signed by Dr. Osborn indicated

that Plaintiff’s limitations were temporary for 8 weeks,

with no badge change recommendation.”? Kirchner found

this change out of the ordinary.24 At some point which is

disputed, Plaintiff told Dr. Osborn that his application for

permanent disability benefits had been denied (for lack of

seniority, as Plaintiff recalls Kirchner’s account).2° Upon

seeing the change from permanent to temporary restric-

tion, Kirchner remarked, “Oh, what an interesting coinci-

dence,” referring to her earlier explanation to Plaintiff

that only those employees temporarily restricted receive

light duty.2 Two more limitation slips followed with

20 Def’s App. at 114.

21 Pl’s App. at 4.

22 Def’s App. at 175-76. See also Def’s App. at 135-36, 160-62

(testimony of Osborn).

23 Def’s App. at 196.

24 Def’s App. at 186.

25 Def’s App. at 32-33; Pl’s App. at 5.

26 Pl’s App. at 21.

App. 10

similar temporary restrictions and limitations on Plain-

tiff’s physical activities.”

On August 10, 1998, Kirchner wrote to Dr. Osborn

expressing her understanding that Plaintiff could not

return to his old job, and requesting Osborn to consider

Piaintiff’s fitness for several “cold-end” jobs.?® Dr.

Osborn’s reply simply listed several cold-end jobs which

he thought Plaintiff could do.?? Kirchner wrote back to

ask for more information, noted Defendant's desire for a

second opinion from its own doctor, and requested

Osborn to prescribe an FCE from Baylorworx.*°

Around September 14, 1998, Middleton told Kirchner

that he did not want Baylorworx to perform the FCE, but

would prefer Sargent Injury Rehabilitation, and Kirchner

agreed.*) Plaintiff opposed using Baylorworx because of

Dr. Garrison’s less than thorough and accurate examina-

tion and diagnosis of Plaintiff's original injury; Plaintiff

further understood that where an FCE is performed is

inconsequential, but that Sargent’s equipment was com-

puterized, not manual like Baylorworx’s.3?2 Dr. Osborn

was an employee of Sargent, though Kirchner was not

aware of it when she approved of Sargent.*> When

Kirchner received the Sargent FCE signed by Osborn and

27 Def’s App. at 198-99.

28 Def’s App. at 200.

29 Def’s App. at 215.

30 Def’s App. at 216.

31 Def’s App. at 188-89.

32 Pl’s App. at 6.

33 Def’s App. at 125-26, 138, 188-89.

App. 11

citing his opinions, she realized the FCE was not inde-

pendent from the first opinion she sought to verify.** The

FCE specifically approved Middleton’s return to the cold

end jobs previously listed by Dr. Osborn.*° However, the

FCE stated Middleton was restricted on a repetitive basis

from most of the physical activities listed, including

bending and reaching.*° The meaning or application of

these restrictions is not elaborated.*” Kirchner wrote to

Osborn to reconcile the apparent discrepancies, and Dr.

Osborn took a tour of the plant before writing Kirchner

that Plaintiff could return to the floor person/apprentice

operator position, a hot end job, “provided he does not

have to change out the cores or the molds himself,” and

also naming several suitable cold end jobs.** There is

evidence that Kirchner had stated that if Osborn would

tour the plant and note the jobs Middleton could per-

form, Middleton would be returned to work.%?

Kirchner brought in Cathleen Moore of Baylorworx

who conducted a job site assessment at the plant in

February of 1999 and concluded that changing of the

molds was an essential floor person/apprentice operator

job function; Plaintiff has agreed.4° In March 1999,

Kirchner wrote Middleton to request a release of medical

34 Def’s App. at 189-91, 218.

35 Def’s App. at 218.

36 Def’s App. at 220.

37 Id.

38 Def’s App. at 191-92, 225-26.

39 Pl’s App. at 58-61.

40 Def’s App. at 227, 232, 92-93, 19.

App. 12

information so a third party could compare the job anal-

ysis to Plaintiff’s medical capabilities.4! Plaintiff's attor-

ney responded a month later by criticizing Defendant's

delay in returning Plaintiff to work and the rejection of

Dr. Osborn’s recommendations, and threatened suit.42

Defendant’s response just twelve days later cited appar-

ent inconsistencies in Dr. Osborn’s statements and

expressed the desire for a second opinion.*$

In July 1999, Defendant wrote Middleton to inform

him of a recall from layoff and invite him to take a cold

end job if he would submit to an FCE by Company

doctors who would determine if Middleton could work

safely. Plaintiff’s response only criticized Defendant's

conduct in contacting Mr. Middleton rather than his

counsel; Defendant responded to the concern.*5

On September 21, 1999, Middleton was informed by

Todd Glawe, Defendant’s new human resources manager,

that he was being suspended for refusing to report to

Baylorworx for evaluation.* Plaintiff responded by offer-

ing to submit to evaluation by a provider other than

Baylorworx and noting Defendant's rights to a medical

exam under the Federal Rules.*” Defendant later sought

simply to confirm Plaintiff’s first FCE as well as to obtain

41 Def’s App. at 234.

42 Def’s App. at 236.

43 Def’s App. at 238.

44 Def’s App. at 248.

45 Def’s App. at 249, 250.

46 Def’s App. at 251; Pl’s App. at 8.

47 Def’s App. at 252-53. Pl’s App, at 8.

cere

App. 13

the medical release.*® Plaintiff claims that Middleton pro-

vided a medical records authorization in response to

Defendant’s Request for Production in this case.49 Plain-

tiff’s letter to Defendant claimed to have provided a

release in August 1999, and further stated that Kirchner

had access to Middleton’s release through Metropolitan

Life Insurance Company since 1998, that Middleton had

authorized release of his information at Baylorworx in

1996, and that Baylorworx as a designated expert could

review Middleton’s file.°°

The Sargent FCE was eventually given to Baylor-

worx. Plaintiff received an offer to return to a cold end

job and has worked there since August 2, 2000 primarily

as a line attendant.>!

DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary Judgment shall be rendered when the

pleadings, depositions, answers to interrogatories and

admissions on file, together with affidavits, if any, show

that there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). All evidence and the reasonable inferences to

be drawn therefrom must be viewed in the light most

48 Def’s App. at 254.

49 Pl’s App. at 9. The Court notes the lack of citation to

documentary evidence of Plaintiff providing such a release.

50 Def’s App. at 255-56.

51 Pl’s App. at 9.

App. 14

favorable to the party opposing the motion. United States

v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party

bears the burden of informing the district court of the

basis for its belief that there is an absence of a genuine

issue for trial, and of identifying those portions of the

record that demonstrate such an absence. Celotex, 477 U.S.

at 323.

Once the moving party has made an initial showing,

the party opposing the motion must come forward with

competent summary judgment evidence of the existence

of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party

defending against the motion for summary judgment can-

not defeat the motion unless he provides specific facts

that show the case presents a genuine issue of material

fact, such that a reasonable jury might return a verdict in

his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Mere assertions of a factual dispute unsupported

by probative evidence will not prevent summary judg-

ment. Id. at 248-50; Abbott v. Equity Group, Inc., 2 F.3d 613,

619 (5th Cir. 1993). In other words, conclusory statements,

speculation and unsubstantiated assertions will not suf-

fice to defeat a motion for summary judgment. Douglass v.

United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996)

(en banc). If the nonmoving party fails to make a showing

sufficient to establish the existence of an element essen-

tial to its case, and on which he bears the burc2n of proof

at trial, summary judgment must be granted. Celotex, 477

U.S. at 322-23.

Finally, the Court has no duty to search the record for

triable issues. Guarino v. Brookfield Township Trustees, 980

F.2d 399, 403 (6th Cir. 1992). The Court need only rely on

App. 15

the portions of submitted documents to which the non-

moving party directs. Id.

B. THE ARBITRATION CLAUSE

The Court must first consider Defendant’s motion to

dismiss under Fed.R.Civ.Proc. 12(b)(1). Defendant argues

that Plaintiff’s statutory ADA claim was waived by the

arbitration provision of his collective bargaining agree-

ment.

Defendant acknowledges the holding of the Supreme

Court in Alexander v. Gardner-Denver Co. that an employee

did not waive or otherwise forfeit his rights under Title

VII when he arbitrated a contractual claim under his

collective bargaining agreement that dealt with the same

evidence as his Title VII statutory claim. 415 U.S. 36, 49-52

(1974). The Court found that an employee could not

prospectively waive his rights under Title VII. Id. Defen-

dant then cites Gilmer v. Interstate, which approved of

arbitration generally, and held that a claim under the Age

Discrimination in Employment Act was subject to com-

pulsory arbitration pursuant to an agreement in a securi-

ties registration application (in conjunction with his

employment). 500 U.S. 20, 35 (1991). The Court distin-

guished the issue in Gardner-Denver as whether an agree--

ment precludes statutory claims merely by agreeing to

arbitrate contractual ones; on the contrary, Gilmer dealt

with an agreement to arbitrate statutory claims. 500 U.S.

at 35.

The Supreme Court recognized the tension between

the two doctrines in Wright v. Universal Maritime

Ser. Corp., but dodged the issue of whether a union-

App. 16

negotiated waiver of a federal judicial forum for statutory

claims of employment discrimination would be valid. 525

U.S. 70, 82 (1998). Instead, the Court found that the

collective bargaining agreement (“CBA”) in the case did

not waive such rights: any such waiver must be “explic-

itly stated” and “clear and unmistakable.” Id. at 80. The

Court found it important that the CBA in question con-

tained a general arbitration clause of “matters under dis-

pute,” incorporated a general intent that the contract not

violate state or federal laws (rather than specifically

incorporated certain statutes), and included a provision

disclaiming anything not contained within the agreement

as not part of the agreement. Id. at 80-81.

Because Defendant argues that the other Circuits are

split on interpreting these issues of law, the Court will

focus mostly on the law of this Circuit. The parties seem

to agree the Fifth Circuit has not spoken specifically to

the case at bar. The Fifth Circuit found generally that Title

VII claims can be subjected to compulsory arbitration

after Gilmer, though the case did not involve a union

contract. Alford v. Dean Witter Reynolds, Inc., 939 F.23d

[sic] 229 (5th Cir. 1991). Maddox v. Runyon found no

waiver where arbitration was not required by a union

contract. 139 F.3d 1017 (5th Cir. 1998). Defendant calls

upon the law of the Fourth Circuit to say that the “clear

and unmistakable” requirement may be satisfied in two

ways: an explicit arbitration clause by which the union

submits all statutory employment discrimination claims

to arbitration, or the presence of another provision like a

nondiscrimination clause that makes it unmistakably

clear that the discrimination statutes at issue are part of

the agreement. Brown v. ABF Freight Systems, Inc., 183 F.3d

App. 17

319, 321 (4th Cir. 1999). The case continued that the

language that the contract “covers employees with a

qualified disability under the Americans with Disabilities

Act” in the context of the preceding sentence that out-

lined other forbidden criteria for discrimination indicates

that the ADA was not specifically incorporated, and thus,

no waiver. Id.

Defendant argues that the contract in this case fulfills

the second prong of another provision like a non-

discrimination clause that makes it “unmistakably clear

that the discrimination statutes at issue are part of the

agreement.” Defendant further cites the finding of the

arbitrator that the ADA did not mandate Defendant to

reasonably accommodate Plaintiff by having an assistant

perform an essential part of Plaintiff’s job which Plaintiff

cannot perform himself (thus deciding an ADA claim).°?

Defendant argues that the specificity of the agreement is

pivotal to whether the federal forum is waived. Compare

Jupiter v. Bellsouth Telecommunications, Inc., 1999 WL

1009829 (E.D.La.1999) (finding no bar where “the CBA

does not make compliance with federal antidiscrimina-

tion statutes an obligation under the agreement”) with

Clarke v. UFI, Inc., 98 F.Supp.2d 320, 332 (E.D.N.Y. 2000)

(finding agreement “clear and unmistakable” where

agreement included comprehensive discussion of sexual

harassment as well as a binding arbitration clause).

Plaintiff does not dispute Defendant's reading of the

applicable law. However, Plaintiff argues that the union

contract does not waive Defendant’s rights to a federal

forum. First, Plaintiff notes that the disputes under the

52 Def’s App. at 57.

App. 18

contract “may be referred to arbitration” (emphasis

added). Plaintiff concludes that there is no mandatory

arbitration, and no waiver of the right to file suit in

federal court. Defendant counters that the distinction that

the parties may arbitrate is irrelevant once the case is

submitted to arbitration. The Court notes that the result

of the arbitrator is made final and binding on the Com-

pany and the Union.

The Court finds the ABF Freight case to encompass a

situation most analogous to this case, and reaches the

same conclusion that there is no clear and unmistakable

inclusion of the ADA in the union contract that would

waive Plaintiff’s right to a federal forum. The contract

contains three relevant provisions. Article 31 generally

states that “there shall be no discrimination against any

employee because of race, color, creed, national origin,

age, sex, disability or veteran status”>> (emphasis added).

Article 33 entitled “Disabled Employees,” Section 2

grants a worker who was disabled by occupational injury

and cannot perform his job the right to be placed on

another appropriate job.>° Article 33 Section 3 provides in

part, “This Contract shall be administered in accordance

with the applicable provisions of the Americans with

Disabilities Act.” Though it is a close [sic] question, the

Court does not see a “clear and unmistakable” intent to

waive Plaintiff's federal forum. Section 2’s listing of other

substantive rights suggests that Section 3 be read not as

53 Def’s App. at 6-7.

54 Def’s App. at 7.

55 Def’s App. at 9.

56 Def’s App. at 10.

App. 19

an incorporation of Plaintiff’s claims under the ADA, but

as a means to interpret Section 2. Accordingly, it would

be appropriate to import the definition of “disabled”

from the ADA (as invoked by Section 3) into Section 2 to

define Plaintiff’s rights thereunder.

- Further, the Court does not believe that Plaintiff’s

claims under the ADA were actually litigated and

decided by the arbitrator. The precise question the arbi-

trator considered was “Did the company violate the col-

lective bargaining agreement by refusing to return the

grievant, Steve Middleton, to employment, as and when

it did, following his injury at work on May 30, 1996?

. 97 The arbitrator made explicitly clear that Article 33,

Section 2 “is the provision that Grievant alleges the Com-

pany has violated... .”, not Section 3 encompassing the

ADA reference.°§ The contract and the arbitration deci-

sion both honor the distinction between the contractual

and statutory claims that so consumed the Gardner-Denver

court. Accordingly, Plaintiff has not waived his right to

litigate his statutory claims in a federal forum.

C. THE ADA

The ADA prohibits employers like Ball-Foster from

discriminating against a qualified individual with a dis-

ability because of the disability of such individual in

regard to job application procedures, hiring, advance-

ment, or discharge of employees. 42 U.S.C. § 12112(a);

Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th

57 Def’s App at 42 (Arbitrator’s Decision).

58 Def’s App. at 45.

App. 20

Cir. 1996). A “disability” includes “a physical or mental

impairment that substantially limits one or more of the

major life activities of such an individual; a record of

such an impairment; or being regarded as having such an

impairment.” 42 U.S.C. § 12102(2)(A)-(C); Turco, 101 F.3d

at 1092. Being regarded as having an impairment means

that the plaintiff: “(1) [h]as a physical or mental impair-

ment that does not substantially limit major life activities

but is treated by a covered entity as constituting such

limitation; (2)[h]as a physical or mental impairment that

substantially limits major life activities only as a result of

the attitudes of others toward such impairment; or

(3)[h]as none of the impairments defined [in the

regulations] but is treated by a covered entity as having a

substantially limiting impairment.” 29 C.F.R.

§ 1630.2(1)(1)-(3).

“A person is ‘regarded as having’ an impairment that

substantially limits the person’s major life activities when

other people treat that person as having a substantially

limiting impairment.” Wooten v. Farmland Foods, 58 F.3d

382, 385-86 (8th Cir. 1995); McAlpin v. National Semicon-

ductor Corp., 921 F.Supp. 1518, 1522 (N.D. Tex. 1996). The

focus is on the impairment’s effect upon the attitude of

others. Wooten, 58 F.3d at 385-86. This provision is

intended to combat the effects of “archaic attitudes,”

erroneous perceptions, and myths that work to the disad-

vantage of persons with or regarded as having disabil-

ities. Id. The “regarded as” component of disability “is

designed to protect against erroneous stereotypes some

employers hold regarding certain physical or mental

impairments that are not substantially limiting in fact.”

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th

App. 21

Cir. 1996). Under that provision, a ‘plaintiff must show

that the perceived impairment is a substantial limitation

on a major life activity.” Id.

“Substantially limits ... means... [uJnable to

perform a major life activity that the average person in

the general population can perform; or [s]ignificantly

restricted as to the condition, manner or duration under

which an individual can perform a particular major life

activity as compared to the condition, manner, or dura-

tion under which the average person in the general popu-

lation can perform that same major life activity.” 29 C.F.R.

§§ 1630.2(j)(1)(i)-(ii); Robinson v. Global Marine, 101 F.3d 35,

36 (5th Cir. 1996), cert. denied, 117 S.Ct. 1820 (1997). One

whose impairment merely affects one or more major life

activities is not disabled. Barfield v. Bell South Telecommu-

nications, Inc., 886 F. Supp. 1321, 1324 (S.D. Miss. 1995).

“Major Life Activities means functions such as caring

for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.” 29

C.F.R. § 1630.2(I); Robinson, 101 F.3d at 36. Other major

life activities could include lifting, reaching, sitting or

standing, 29 C.F.R. § 1630, Appendix to Part 1630 — Inter-

pretive Guidance on Title I of the [ADA] § 1630.2(1);

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (Sth Cir.

1995), The EEOC’s Interpretive Guidelines proclaim that

an individual's ability to perform the major life activity of

working should only be considered if the individual is

not substantially limited in any other major life activity.

29 C.F.R. Part 1630, Appendix § 1630.2(j); Barfield, 886 F.

Supp. at 1324. ~

App. 22

“With respect to the major life activity of work-

ing ... [t]he term substantially limits means significantly

restricted in the ability to perform either a class of jobs or

a broad range of jobs in various classes as compared to

the average person having comparable training, skills

and abilities. The inability to perform a single, particular

job does not constitute a substantial limitation in the

major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i);

Ellison, 85 F.3d at 190; Maulding v. Sullivan, 961 F.2d 694,

698 (8th Cir.992) [sic], cert. denied, 507 U.S. 910 (1993).

“Working” under the ADA “does not mean working at a

particular job of that person’s choice.” Wooten 58 F.3d at

385-86. Nor is an individual “substantially limited in

working just because he or she is unable to perform a

particular job for one employer. ...” Foreman, 113 F.3d at

1407.

I. PLAINTIFF’S DISABILITY

The Supreme Court recently laid out a three-step

process for evaluating whether someone has a disability:

first, whether the condition is a “physical impairment,”

second, whether the life activity affected is a “major” one,

and third, whether the impairment “substantially” limits

the major life activity. Bragdon v. Abbott, 524 U.S. 624

(1998). As noted above, major life activities include caring

for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working. 29

C.F.R. § 1630.2(I); Robinson, 101 F.3d at 36. In addition,

other major life activities could include lifting, reaching,

sitting or standing. 29 C.FR. § 1630, Appendix to Part

1630 - Interpretive Guidance on Title I of the [ADA]

§ 1630.2(1); Dutcher, 53 F.3d at 726.

App. 23

Plaintiff’s brief cites the opinion of Dr. Richard

Raughton that Plaintiff suffers from status post lumbar

laminectomy pain with acute exacerbations.°? Plaintiff's

physical impairment is not disputed. In response to direct

question from Plaintiff’s attorney, Dr. Raughton agreed

that Plaintiff has a physical impairment that substantially

limits major life activity.© In order to evaluate this con-

clusory statement, this Court must investigate the conse-

quences of Plaintiff’s condition and the evidence

supporting it. In his brief, Plaintiff cites to Dr. Raughton’s

deposition to conclude that Plaintiff suffers from a sub-

stantial impairment of “lifting, bending, pushing, pulling,

walking, driving and jogging.”®! The work limitation slip

signed by Dr. Osborne specifically recommends “no exces-

sive bending, no heaving pushing or pulling.”®? The slip

recommended no heavy lifting over 25 pounds.® The

Court considers these contentions.

The lifting restrictions placed on Plaintiff limit his

lifting at his job to 25 pounds.® In Pryor v. Trane Co., the

Fifth Circuit approved of the holding of a Fourth Circuit

case that “as a matter of law, .. . a twenty-five pound

limitation . . . does not constitute a significant restriction

on one’s ability to life [sic], work, or perform any other

major life activity.” 138 F.3d 1024, 1027, citing Williams v.

Channel Master Satellite Systems, Inc., 101 F.3d 346 (4th

59 See Deposition of Dr. Richard Raughton, Pl’s App. at 82.

60 Pl’s App. at 78.

61 P]’s App. at 78-79; Plaintiff’s Response at 15.

62 Def.’s App. at 196.

63-Id.

“* i.

App. 24

Cir.1996) (citing the 8th Circuit), cert. denied, 520 U.S. 1240

(1997). Plaintiff does not respond to this contention. In

accordance with the law of this circuit, this Court finds

that Plaintiff’s lifting restriction does not significantly

impair a major life activity under the ADA.

Plaintiff is restricted from excessive bending, push-

ing, or pulling in the workplace. But Plaintiff provides no

indication of what “excessive” means. The Court agrees

with Defendant’s common sense contention that an

inability to perform such activities to excess is a common

trait of all people. Plaintiff cites no law to indicate that

Plaintiff’s restrictions place him within the ADA’s pur-

view. These contentions do not make Plaintiff disabled

under the ADA. The evidence cited by Plaintiff from Dr.

Raughton also finds that Plaintiff cannot “walk a golf

course” or jog.® Plaintiff’s legal support for how these

contentions support his ADA claim is absent. There is no

evidence that jogging is a major life activity; many people

who cannot jog are not disabled. There is no evidence to

support that the inability to walk a golf course constitutes

a disabled condition. Defendant’s Reply notes that Plain-

tiff can take 30-minute or longer walks every day in the

morning, and can do some household chores.®©

Dr. Raughton’s letter opines that Plaintiff should not

pursue a job which would require driving farther than

25-30 miles.®” First, Plaintiff shows no legal support to

show that driving is a major life activity. The examples of

65 Pl’s App. at 79.

6 Deposition of Steve Middleton, Def.’s App. at 36-39.

67 Pl’s App. at 82.

App. 25

“major life activities” available to this court represent the

most basic of tasks, such as “reaching” and “walking.”

The Court cannot conclude from the examples listed

above that a complex task such as driving rates as a

“major life activity” the same as the other simple activ-

ities listed above. Indeed, such a finding would compel

the Court to rule that anyone who has a substantial

impairment in driving would have a disability under the

ADA; the Court sees little logic or common sense in this

conclusion, and certainly has seen no case support from

Plaintiff. Plaintiff's doctor attempts to bring driving

within the class of major life activities by suggesting we

spend 15% of [sic] 20% of our time in a car, a figure that,

even in Dallas, seems exaggerated. Further, the examples

of major life activities listed above do not focus on the

length of time spent on the activity, but rather their

basicness to our existence as humans (e.g. breathing,

speaking, learning). Even if driving is a major life activity,

Plaintiff is not substantially limited, as he can still drive;

he simply should not drive more than 25 or 30 miles at a

time. Plaintiff’s doctor does not tell us how long a recov-

ery period the plaintiff would require (e.g. whether get-

ting out to stretch would be sufficient to allow Plaintiff to

continue). Nor does Plaintiff cite support to show that

such a distance represents a substantial impairment of

life activity, other than the doctor’s bald assertion, nor

does he discuss what the average or reasonable time is

that a driver can drive without stopping. The driving

restriction only applies to Plaintiff’s job, which presuma-

bly would entail a daily commute of the distance twice

per day. There is no evidence that the average person

does not commute more than 25 or 30 miles per day, nor

App. 26

does Plaintiff argue to the contrary. With perhaps 2000

square miles or more within Plaintiff’s immediate sphere

of driving, Plaintiff does not show any impairment in his

life. Lastly, the Court notes that the doctor’s written letter

tempered his advice by stating that such driving would

“compromise his fragile lower back injury” and “would

not be beneficial in the long run for [Plaintiff];”°* this

statement strangely stops short of saying such driving

would harm Plaintiff. Nor is there evidence from Plaintiff

showing that the lack of beneficial effect of driving is any

different than for the average person with whom Plaintiff

is compared.

Plaintiff’s brief also claims that Plaintiff has a “20%

impairment rating,” which appears in the Plaintiff’s

signed Declaration.® But Plaintiff’s brief does not explain

the meaning of this statement or how it affects the anal-

ysis of whether Plaintiff is disabled.

Defendant also contends, without response from

Plaintiff, that just because Plaintiff may not have been

able to perform the job of floor person/apprentice opera-

tor, for-which changing the molds was an essential func-

~~tion, that fact alone does not establish a substantial

limitation on the life activity-~of working. The Supreme

Court has stated that “the inability to perform a single,

particular job does not constitute a substantial limitation

in the major life activity of working.” See Sutton v. United

Air Lines, 527 U.S. 471, 493 (1999), citing 29 C.F.R.

§ 1630.2(j)(3)(i). Plaintiff does not dispute Defendant's

68 Pl’s App. at 82.

6? Declaration of Steve Middleton, Pl’s App. at 3.

App. 27

contention that there are “a myriad” of other manufactur-

ing jobs, including ones at Ball-Foster in the cold end,

that are consistent with the restrictions upon Plaintiff.7°

Plaintiff has not demonstrated through his brief that

he has an impairment that substantially limits one or

more major life activities. Therefore, he is not disabled

under the ADA.

Defendant similarly challenges Plaintiff’s contention

that he has a record of disability, which would qualify

Plaintiff under the ADA. This Court agrees with Defen-

dant’s challenge to the inadequacy of Plaintiff’s showing

of a record of disability. Plaintiff cites no evidence that

Plaintiff’s record differs at all from his contentions of

disability, which the Court has already found to be

legally insufficient. Therefore, Plaintiff has failed to show

a record of disability.

Defendant also challenges whether Plaintiff was

regarded as having an impairment under the ADA. Since

the Court held as a matter of law that being unable to

work the single floor person/apprentice operator posi-

tion did not render Plaintiff disabled, then a fortiori

Defendant's belief that Plaintiff could not work solely

that position would not render Plaintiff “regarded” as

disabled under the ADA.

To combat Defendant’s claim, Plaintiff rests primarily

on the contention that if Defendant was willing to put

Defendant to work in other positions, it would have done

70 Def’s Brief at 13.

App. 28

- so long before August 2, 2000. Plaintiff notes that Defen-

dant declined to do so even though Plaintiff’s doctor

performed an FCE, and released Plaintiff for work after

specifying other jobs he could perform in tne cold end.

Plaintiff cites the position of Defendant’s employee Julia

Kirchner that Ball Foster was concerned about liability in

the event that Plaintiff could not safely perform his job.7!

Plaintiff’s delay in returning to work is not disputed.

The Court looks for guidance to the Colwell case. See

Colwell v. Suffolk County Police Dept., 158 F.3d 635, 647 (2d

Cir. 1998). The Court there entered summary judgment

for the Defendants, finding that requiring the plaintiff

candidates for promotion to submit to physical examina-

tions, even where others were not required to do so,

provided no basis that they were regarded as disabled

where plaintiffs had earlier insisted that their physical

limitations restricted what work they could perform. Id.

at 647. The Court stated, “The fact that the County per-

ceived a need to require the exams suggests no more that

[sic] that their physical condition was an open question.”

Id. This case is instructive but not controlling, since the

physical examinations in question evidently applied only

to a specific job for which the plaintiffs had applied. See

id. In our case, Plaintiff could have been regarded as

disabled for a wide range of jobs within Ball Foster.

It is a close question as to whether a jury could

reasonably infer that Defendant regarded Plaintiff as dis-

abled. It is conceivable that Defendant simply did not

71 Pl’s App at 27.

App. 29

know whether Plaintiff was disabled, but did not neces-

sarily regard him as such. Yet the Court concludes that

Defendant’s refusal to return Plaintiff to work in a wide

range of jobs in the plant before receiving further medical

testing or analysis, given that Plaintiff had already sub-

mitted evidence of his ability from his doctor, could rea-

sonably support the inference that Plaintiff was regarded

as disabled by Defendant. A jury would be entitled to

disbelieve Defendant's contention that its refusal to per-

mit Plaintiff to return to work was based on liability

concerns rather than discrimination against someone that

Defendant regarded as disabled. The jury must consider

the question of whether Defendant regarded Plaintiff as

disabled. Of course, just because there are no jobs avail-

able that fit Plaintiff’s restrictions does not mean Plaintiff

is regarded as being excluded from an entire class of jobs

(and thus as disabled). Pryor, 138 F.3d ~at 1028.

The Court notes that, given Defendant’s plausible

reasons for requiring another medical examination and

Plaintiff’s intransigence in granting it, the evidence

appears to strongly favor Defendant on the issue of

whether Defendant discriminated against Defendant [sic]

based on any disability he was regarded as having. The

Fifth Circuit considered a claim that, assuming that the

defendant considered the plaintiff to be disabled, the

defendant had refused to place her [sic] in jobs that might

have been available. Deas v. River West, L.P., 152 F.3d 471,

481 n.23 (5th Cir. 1998). The Court required evidence that

other jobs were available and that the plaintiff had

applied for them (Id.); the evidence of other available jobs

in this case would support such a contention. But Defen-

dant does not argue for summary judgment based on

App. 30

Defendant’s conduct toward someone it may have

regarded as disabled; accordingly, the court will not con-

sider such evidence.

To be covered under the ADA, Plaintiff must also be

a “qualified individual with a disability.” 42 U.S.C.

§ 12111(8); Turco v. Hoechst Celanese Corp., 101 F.3d 1090,

1092 (5th Cir. 1996). Such an individual, “with or without

reasonable accommodations can perform the essential

functions of the employment position that such individ-

ual holds or desires.” 42 U.S.C. § 12111(8); Turco, 101 F.3d

at 1092.

The Court considers the floor person/apprentice

operator position that Plaintiff desired. It is undisputed

that changing the molds is an essential part of the posi-

tion, and that Plaintiff could not perform the function on

his own. Plaintiff must thus prove he could do the job

with reasonable accommodation. The accommodation

suggested by Plaintiff's chiropractor of having another

employee help Plaintiff change the molds is unreasonable

as a matter of law. Eliminating an essential function of a

job or redefining essential roles so that another employee

substitutes for the disabled employee is not a reasonable

accommodation. See Bradley v. University of~Texas M.D.

Anderson Cancer Center, 3 F.3d 922, 925 (5th Cir. 1993)

(construing Rehabilitation Act of 1973);72 Newman v. Chev-

ron, U.S.A., 979 F.Supp. 1085, 1091 (S.D.Tex. 1997); Johnson

v. City of Port Arthur, 892 F.Supp. 835, 842 (E.D.Tex. 1995).

Defendant argues that even if accommodation was legally

72 See also Sutton, 527 U.S. at 497 (“The [ADA’s] definition

of disability is drawn almost verbatim from the Rehabilitation

At of 1973”) (internal quotes omitted).

App. 31

required, Defendant could not reasonably do so. Defen-

dant contends it could not reasonably pass Plaintiff's

mold changing responsibilities in the hot end to others.”

Dennis Worrell, the plant Operations Manager, testified

that having a floor person always on hand for Plaintiff is

not feasible to the plant’s operation since there is only

one floor person who works during the day, and none

work at other times.”4 The function of upkeep personnel

is to relieve other personnel (presumably the operators)

and to keep the hot end clean; they also occasionally

change the molds.”° )

Plaintiff contends that Defendant’s arguments fail for

three reasons. First, when Osborn placed the “no mold

changing” restriction on him, he did not realize that the

molds did not have to be changed in one piece, but rather

could be changed after breaking them down into three

pieces which would each weigh no more than Mid-

dleton’s 25-pound lifting restriction. This contention is

unavailing, since Plaintiff has not shown that Defendant

knew exactly why Middleton’s doctor placed the no mold

changing restriction on him. The evidence in the case

indicates that Defendant was continually requesting more

specific information than what it received. Further, even

though Dr. Osborn testified that the floor person job was

lighter than he had envisioned, Plaintiff’s evidence of the

weight of the plates is unclear that they were within the™

25-pound limit; the 32-ounce mold broke down to a 24

73 Def’s App. at 268-272.

74 Def’s App. at 268-271.

75 Def’s App. at 268-272.

App. 32

pound piece, while the 40 ounce mold weighed a little

more, according to Plaintiff’s brief.7¢

Plaintiff’s second refutation is that an “upkeep” was

regularly available to assist with duties such as mold

changes, so no additional work would be imposed on

others. This statement is self-contradictory, since obvi-

ously anyone assisting Plaintiff would be doing work that

they otherwise would not have done. As discussed above,

it is not reasonable that another employee should have to

assist Plaintiff every time he must change a mold, as

would evidently be the case, nor is it even practical given

that upkeep personnel act in relief of others, not as assis-

tants to floor personnel.

Third, Plaintiff states that “the otherwise qualified”

requirement is not limited to the former job, and there

were at least five other “cold end” jobs identified by

Middleton’s doctor which Middleton could have per-

formed. Plaintiff claims that light duty was available, at

Defendant’s discretion, during 1998 and 1999; the record

implied that two weeks’ light duty might have been

available.” Plaintiff cites no law for this contention that

Defendant must place Plaintiff in another job, and this

Court believes the legal authority to lean the opposite

direction. An employer has no duty to reassign the

employee to any particular job, although it could not

deny him alternative employment opportunities reason-

ably available under the employer’s existing policies. See

76 Pl’s App. at 37-39, 43-44. The Court does not see the

discussion of the 40-ounce mold. |

77 Pl’s App. at 29-30.

App. 33

School Board of Nassau County v. Arline, 480 U.S. 289 n.19

(1987) (Rehabilitation Act); Bradley, 3 F.3d at 925. Creating

a new job or changing an employee’s essential functions,

such as switching him to light duty when he has been a

laborer, is not a reasonable accommodation. See Port

Arthur, 892 F.Supp. at 842 (finding such changes to be a

different job, not an accommodation of employment).

Thus, since Plaintiff could not be reasonably accommo-

dated in his former job, Defendant was not obligated to

place him in another job, including light duty.

Defendant could not prevent Plaintiff from obtaining

another job in the cold end for which he might be quali-

fied. But Plaintiff fails to show that any of the cold end

jobs that his doctor cleared him to take were actually

available at the plant under Ball-Foster’s existing policies.

For March 1998, we have only Middleton’s bare asser-

tions that a repack or line attendant job was available.”®

The evidence cited by Plaintiff to show the availability of

light duty jobs is unhelpful, for the jobs appeared to be

merely temporary odd jobs given to employees with

minor injuries.7? Plaintiff also misquotes a witness as

saying that a Mr. Martinez had worked longer than two

weeks on light duty, when the context makes fairly clear

that the witness said that he didn’t know.®8° The one

wetness who comes close to showing that jobs were avail-

able for Plaintiff is employee and union officer Darrell

Grounds, but in claiming that Middleton’s seniority

78 Pl’s App. at 4.

79 Pl’s App. at 40-44.

80 P]’s App. at 44. Darrell Grounds did testify to this fact.

Pl’s App. at 71.

App. 34

would have put him in a position where he could have

been called in part time, Grounds admits he only knew

Plaintiff’s seniority approximately;*! there is nu showing

that Plaintiff was not given a job that a more junior

employee received. According to Grounds, employees

were being recalled from layoff; the evidence is insuffi-

cient to show Middleton’s proper order in being recal-

led.82 Grounds testified that even with his level of

seniority; Plaintiff would not have been able to protect

his job from layoff.8° The mere fact that people were

working light duty jobs is of no consequence. Defen-

dant’s position was that Plaintiff did not have enough

seniority to take a cold end job.*4 This contention is

supported by Defendant's offer to return Plaintiff to work

in the cold end once his seniority or experience was

sufficient and a position was available, and once Defen-

dant was satisfied as to Plaintiff’s safety.®°

Plaintiff’s suggestion conflicts with the limited pur-

pose of light duty stated by Julia Kirchner. Light duty is

discretionary and is intended to ease injured employees

back to work who evidently will be returning to full work

soon; but Defendant’s [sic] Julia Kirchner testified that

she understood Plaintiff to have a permanent restriction

that would prevent him from doing his job.8° Thus, given

the rationale behind light duty as a temporary stop before

81 Pl’s App. at 67-71.

= id.

84 Def’s App. at 234.

8° Def’s App. at 248.

86 Id.

App. 35

returning to regular work, there was no reason to use

temporary work to ease Plaintiff back into a job he could

never return to or which was not available given his

seniority.

Plaintiff also contends as a legal matter that after an

employer knows of a disability and the employee

requests accommodation, if the employer fails to engage

in a dialogue to determine what accommodations are

necessary, they have failed to reasonably accommodate

under the ADA. See Loulseged v. Akzo Nobel, Inc., 178 F.3d

731, 735-36 (5th Cir. 1999). But since this Court found that

Plaintiff is not otherwise qualified under the ADA, there

is no reasonable accommodation, and thus no need for

discussion. The Court is very skeptical whether this claim

would survive summary judgment even if accommoda-

tion were necessary given Defendant’s abundant commu-

nications with Middleton.

2. ADA RETALIATION CLAIM

The ADA prohibits an employer from discriminating

against an employee who has made a charge or partici-

pated in a proceeding under this act. See 42 U.S.C.A.

§ 12203. “To show an unlawful retaliation, a plaintiff must

establish a prima facie case of (1) engagement in an

activity protected by the ADA, (2) an adverse employ-

ment action, and (3) a causal connection between the

protected act and the adverse action.” Seaman v. CSPH,

Inc., 179 F.3d 297 (5th Cir. 1999). “Once the plaintiff has

established a prima facie case, the defendant must come

forward with a legitimate, non-discriminatory reason for

the adverse employment action.” Id. If such a reason is

App. 36

advanced, the plaintiff must adduce sufficient evidence

that the proffered reason is a pretext for retaliation, and

must show that “but for” the protected activity, the

adverse employment action would not have occurred. Id.

According to the interrogatory answers cited by

Defendant, Plaintiff claims that Defendant retaliated

against him by not permitting him to return to work

when he wanted, refusing to make accommodations for

him to return to work on light duty, and giving him

verbal and written discipline beginning in January 1998

after placing him on a machine with which he was not

:amiliar.8” Defendant disputes the third prong of the test

for retaliation: whether there is a causal connection

between Plaintiff’s actions protected by the ADA and the

Defendant’s actions complained of above.

The Court will assume arguendo that Plaintiff has

made a prima facie case. Defendant again explains its

refusal to return Plaintiff to work where he wished by

citing the “confusing and contradictory information”

from Plaintiff’s chiropractor, and Plaintiff’s failure to

cooperate with Defendant to allow his FCE to be given to

Baylorworx for comparison with the functions of the

various jobs in issue. The Court also recalls Defendant’s

liability concerns in allowing an injured employee to

return to work he could not handle. Having produced a

non-discriminatory reason for its actions, the burden

shifts to the Plaintiff to show that these reasons are a

pretext for retaliation. The Court notes that Plaintiff does

87 Def’s App at 173.

App. 37

not argue that Plaintiff’s threatened 3-day suspension

was retaliation by Defendant.

Plaintiff further cites Defendant’s continual “delay

tactics” in requiring progressively more information from

Plaintiff without tangible results in Plaintiff’s employ-

ment. Plaintiff asserts that he submitted four work

releases in mid-1998 before Defendant inquired with

Plaintiff's doctor as to which jobs he could handle.§§

Plaintiff cites Dr. Osborn’s identification of 5 or 6 jobs

Plaintiff could perform, followed by Kirchner’s refusal to

permit Plaintiff to return to work and request for more

specific information and an FCE, followed by further

requests for information, including a medical release

form, which Plaintiff contends he provided.®?

The Court cannot discern any attempt at retaliation

against Plaintiff. Defendant had a legitimate concern

about the safety of Middleton and the liability of Ball-

Foster should Middleton be hurt again in a job for which

he was not qualified. It was thus reasonable for the

Defendant to desire medical evidence of Plaintiff’s capac-

ity to work in his previous job or any other job within the

plant. Defendant’s reluctance to accept the opinion of Dr.

Osborn is entirely reasonable in light of his abrupt

change in diagnosis of Plaintiff from permanently dis-

abled to temporarily restricted from work. This change

coincided with the denial of Plaintiff’s application for

permanent disability benefits: Plaintiff applied for perma-

nent disability benefits on April 15, 1998, but only a few

88 Def’s App. at 114, 196, 198-99.

89 Pl’s App. at 14.

RRR AA MTR oe IRON ONE AN

App. 38

weeks later on May 8, 1998, Dr. Osborn radically changed

his diagnosis. It was reasonable for Defendant to suspect

that the change in diagnosis might have resulted from Dr.

Osborn’s knowledge that Plaintiff’s benefits application

had been denied. A merely temporary restriction might

also have made Plaintiff eligible for light duty. Defendant

was justified in seeking a second, independent opinion

and had ample reason to do so. Defendant’s request was

not intended to unduly obstruct Plaintiff’s return to

work; when Plaintiff objected to Defendant’s suggestion

that Baylorworx perform Middleton’s FCE, Defendant

acceded to Plaintiff’s request and permitted Sargent to

perform the FCE. It was only when it became apparent

that the Sargent FCE was based upon the opinions of the

same Dr. Osborn that Defendant pressed for another,

truly independent evaluation. The Court notes that

Defendant frequently initiated the correspondence

between the parties, indicating a willingness to resolve

the questions of Middleton’s fitness for work.

It is not clear that in March 1998 Plaintiff requested

anything other than his old job in the hot end, for which

it is not refuted that Plaintiff's ability to work the hot end

job was affected by his condition. It is reasonable that

Defendant would not look for another similar job when

Plaintiff was found to be permanently disabled from

working that job. Plaintiff did not adequately show eligi-

bility for any cold end jobs based either on his ability, his

seniority, or the availability of those jobs. Defendant was

willing to drop its request for an independent FCE, but

still wanted their doctors at Baylorworx to evaluate Plain-

tiff’s earlier FCE results. Defendant's caution in seeking a

release from Plaintiff for Baylorworx to view Plaintiff’s

App. 39

FCE and medical records is reasonable, as Defendant

clearly felt it needed a release for the FCE itself in addi-

tion to any general release that may have existed. It is not

just Defendant who caused delay in Plaintiff’s return to

work; Plaintiff delayed in responding to Defendant's

requests, and quarreled with whether a release had been

given but refused to simply grant a new release. Defen-

dant initiated Plaintiff’s eventual return to work in the

cold end.

Even if Plaintiff's alleged facts are believed, the

Court cannot conclude that a reasonable jury could find

that Plaintiff had fulfilled his burden of proof.

D. WORKER’S COMPENSATION RETALIATION

CLAIM

Defendant moves to dismiss Plaintiff’s worker’s com-

pensation retaliation claim under Texas Labor Code

§ 451.001. A person may not discharge or in any other

manner discriminate against an employee because the

employee has: (1) filed a workers’ compensation claim in

good faith; (2) hired a lawyer to represent the employee

in a claim; (3) instituted or caused to be instituted in good

faith a proceeding under the Texas Workers’ Compensa-

tion Act; or (4) testified or is about to testify in a proceed-

ing under the Act. Id. A causal connection is established

between a plaintiff’s protected action and a defendant’s

retaliation if but for the employee’s action, the adverse

employment action would not have occurred when it did.

See Continental Coffee Products v. Cazarez, 937 S.W.2d 444,

450-51 (Tex. 1996). The employee need not prove that

participation in the protected activity was the sole cause

App. 40

for the adverse employment action. Id. at 451 n.3. The

causal connection may be established by circumstantial

evidence or by the reasonable inferences drawn from the

evidence. Id. at 451. Once the causal link is established,

the employer must rebut the allegation by showing a

legitimate reason for the discharge. Id. Evidence that an

employer’s stated reason is false could support a finding

of a violation of the statute. Id. at 452. |

The Court finds much of the same evidence that was

probative to the ADA retaliation claim to apply to the

Worker’s Compensation retaliation claim as well. Conse-

quently, the Court will not rehash the entire discussion.

In support of this state law claim, Plaintiff cites Defen-

dant’s failure to return him to work for two years as a

violation of company policy. The delays in Plaintiff's

return to work have already been fully addressed. But

Plaintiff’s claim cannot stand for a further reason. The

connection between the filing of Plaintiff’s worker’s com-

pensation claim and the actions of Defendant are far too

attenuated to support a judgment in Plaintiff’s favor.

Plaintiff filed his claim in September of 1996. Yet there is

no evidence that this claim hindered Plaintiff’s return to

work in early January 1998 after his recuperation. Defen-

dant’s actions in not returning Plaintiff to work did not

occur until after-Plaintiff’s injury flared up again shortly

after returning to work, and he began seeing Dr. Osborn.

The events are too remote in time and circumstance to

support Plaintiff’s claim.

Plaintiff cites generally Defendant’s negative attitude

toward Plaintiff during the two years after he returned to

work from surgery, left again, and sought reinstatement;

App. 41

manifestations of such attitude included verbal and writ-

ten warnings. Expression of a negative attitude toward

Plaintiff’s injured condition or the failure to adhere to

established company policies can support the finding of a

causal connection. See Paragon Hotel Corp. v. Ramirez, 783

S.W.2d 654, 658 (Tex. App. 1989). But Plaintiff admitted in

his deposition that he could think of no other reason for

his warnings other than that he did not do a good enough

job cleaning up.%° Defendant notes that there is no evi-

dence that anyone commented about Plaintiff’s claim

specifically or reacted negatively to it. ,

The Court holds as a matter of law that no reasonable

jury could find that Defendant unlawfully retaliated

against Plaintiff and would not have acted as it did but

for Plaintiff’s filing of a claim.

CONCLUSION

Having carefully considered the parties’ arguments,

the summary judgment evidence, and pertinent authori-

ties, the Court concludes that Defendant’s Motion to Dis-

miss should be DENIED, and Defendant’s Motion for

Summary Judgment should be GRANTED against all of

Plaintiff's claims.

90 Def’s App. at 27-29.

App. 42

So Ordered.

This 2nd day of February, 2001

/s/ Jorge A. Solis

JORGE A. SOLIS

United States District Judge

App. 43

EXHIBIT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISIO}

STEVE MIDDLETON, § CIVIL ACTION NO.

Plaintiff 3:CV-99-0964-P

v. §

BALL-FOSTER GLASS §

CONTAINER CO., L.L.c. §

Defendant. : :

COUNTY OF DALLAS _)

)

STATE OF TEXAS )

DECLARATION OF STEVE MIDDLETON

I, Steve Middleton, make the following Declaration. I am

aware that this Declaration will be filed in a federal court

and that it is the legal equivalent of a statement under

oath. All of the matters expressed herein are true and

correct and are of my personal knowledge. I am the

Plaintiff in the above-styled case and I hereby state the

following:

I began working for the Defendant, Ball-Foster Glass

Container Company, on or about December 5, 1988. I

have performed a variety of jobs during my tenure with

the Defendant. I began working as a pallet loader. I also

worked as a box maker, a line attendant and auditor and

App. 44

all of the “cold end” jobs (except for lehr sample). The

plant was divided into the “hot end” and the “cold end”.

The “hot end” jobs involved forming molten glass into

bottles using machines. “Cold end” jobs involved inspect-

ing, packing and storing the bottles. I am currently work-

ing as a Line Attendant, which is a “cold end” job. I

started working in this position on August 2, 2000. Prior

to working as a Line Attendant, I worked as a Floor

person/Apprentice Operator in the “hot end” of the

plant.

On or about May 30, 1996, I was injured during the

course and scope of my employment with the Défendant.

I injured my back when I was pulling the grates out on

the front of the machine I was working on. I reported this

injury to Tom Sharpe, my supervisor on the day of the

injury. Although I was injured, I did not miss time from

work or seek medical treatment at that time.

At the time I was injured, I was working as a Floor

Person/Apprentice Operator. This was a “hot end” job,

which involved running the machines, keeping the

machine operating, maintenance of equipment on the

floor, taking care of defects, blank changes, mold

changes, cleaning machines, keeping equipment stored,

filling the ovens with the molds, making sure the floor

was clean, painting, wiping down pipes, keeping the

floor dry where oil drained out of the machines, making

sure the operators had what they needed to run the

machines and and relieving the Operators on the

machines when they took breaks. Also, an “Upkeep”

person works in conjunction with the operator making

repairs and keeping the machines running. Once an

Apprentice Operator accumulates 4000 working hours, he

App. 45

becomes an Operator. As of September 1996, I had accu-

mulated approximately between 2500 and 3000 hours as

an Apprentice Operator and was working toward becom-

ing an Operator.

I initially was seen by a company docto. Dr. Bousquet,

for an evaluation of my back injury. In late August 1996,

Dr. Bousquet referred me to Dr. Garrison for evaluation.

On or about August 30, 1996, I was examined by the

company doctor, Dr. Garrison, at BaylorWorx (a medical

clinic in Waxahachie where employees of the Defendant

are sent for treatment of on-the-job injuries). Dr. Garrison

informed me that MRI’s were expensive and that if my

back was that bad, I would not have been able to walk

into his office. Dr. Garrison commented that it looked like

I had learned to live with my injury very well. Dr. Garri-

son wrote me a prescription and released me to work

with no restrictions on September 3, 1996. I provided this

full duty release to the Defendant and resumed working.

However, a few days later, on or about September 7, 1996,

I went to the emergency room at Baylor Hospital because

I was unable to get out bed due to my back pain. After

being treated at the emergency room, I was referred to

Dr. Bousquet. It was my understanding from the treating

doctor at the emergency room that I was to see Dr.

Bousquet for an MRI. I went to see Dr. Bousquet the next

day. Dr. Bousquet took me off of work and an MRI was

performed on me. I was diagnosed with an 11-millimeter

herniated disk in my back at L4-L5. I then went to Dr.

Callewart for an opinion on whether I needed back sur-

gery. After Dr. Callewart recommended back surgery, I

went to another doctor, Dr. Richard Hubbard, for a sec-

ond opinion and he also recommended surgery. I had

App. 46

back surgery on January 15, 1997. Dr. James Moody per-

formed the surgery.

On or about September 21, 1996 (and again on the new

form on September 30, 1996), I filed a [sic] an Employee’s

Notice of Injury and Claim for Compensation with the

Texas Workers’ Compensation Commission in connection

with my May 30, 1996 injury. I then began receiving

workers’ compensation benefits.

After my surgery, I went to therapy and work hardening

at the Rebuild Injury Rehabilitation Center in Wax-

ahachie, Texas.

In approximately October 1997, I reached MMI and was

given a 20% impairment rating by Dr. Lett. The 20%

impairment rating was not disputed by the Defendant’s

workers’ compensation insurance carrier until after I

returned to work in January 1998. (This dispute was

dismissed as being untimely.) Also, at the recommenda-

tion of Dr. Bousquet (company doctor), I had an FCE

(Functional Capacity Evaluation) performed at Baylor-

Worx in December 1997. It is my understanding from

Cathleen Moore with BaylorWorx, that the FCE showed I

was able to perform medium level work.

After being released to return to work with no restric-

tions by Dr. Bousquet and Cathleen Moore, I returned to

work on or about January 5, 1998. I returned to work in

my previous Floor Person/Apprentice Operator position.

When I returned to work on January 5, 1998, Plant Opera-

tions Manager, Dennis Worrell, told me to take it easy

because of my injury and to get accustomed to the new

changes that had been made in my absence. The next day,

App. 47

on January 6, 1998, I was given a verbal warning from my

supervisor, Ed Johnson, for not cleaning the glass off the

floor. Johnson’s name was on the cleaning inspection

sheet for that week which he got [sic] low rating of 50%.

Johnson gave only me the verbal warning, even though

there were other employees that were responsible for

cleaning the floor. In addition, I was put on a machine

that I was unfamiliar with. This machine, an unqualified

bottle machine for wide-mouth bottles, was physically

difficult to operate and should have been run by an

operator who had more accumulated work hours than I

did and who had not recently returned from a back

injury. The next day, January 23, 1998 I was written up for

poor performance by Ed Johnson, my supervisor. Later,

Johnson personally told me that I was not supposed to be

put on that machine. These warnings came just after I

returned to work from being off for my work related

injury.

After returning to work in January 1998, I missed some

days in January and February due to difficulties I was

having with my pain medication for my back injury. I

provided the Defendant with a doctor excuse for these

absences. I was seen by Dr. Bousquet in connection with

these absences.

On or about March 2, 1998, I changed treating »}:ysicians

to Dr. Charles Osborn. After receiving approva: .om the

Texas Workers’ Compensation Commission, I began see-

ing Dr. Charles Osborn for treatment of my back. I was

experiencing a lot of pain and swelling in my back. On or

about March 27, 1998, Dr. Osborn placed me on perma-

nent light duty restrictions (See also Def. Appdx. 114)..

Based on these restrictions, I was restricted from lifting

App. -48

over 25 pounds, excessive bending, pushing and pulling.

(See also Def. Appdx. 114). Dr. Osborn also indicated that

I would need to change jobs. (See also Def. Appdx. 114). I

was diagnosed with post-laminectomy syndrome. (See

also Def. Appdx. 114).

On or around March 27, 1998, I attempted to return to

work. I presented to Julia Kircher [sic], Human Resource

Manager, my release to return to work with permanent

light duty restrictions from my treating physician, Dr.

Charles Osborn. Kirchner left with the slip. When

Kirchner returned, she told me to go home and she would

call me when they had a job for me. I was not permitted

to return to work until August 2, 2000.

In March 1998, even with my restrictions, there were

available jobs which I could have performed at the plant.

Specifically, I could have performed the repack position

or worked as a line attendant. The repack position was a

“cold end” job that involved inspecting bottles that have

been identified by auditors as having defects as they

came out of the palletizer. The line attendant position, a

“cold end” job, involved keeping the lines unjammed,

sweeping glass and keeping the floor clean. I was not

offered either job or any other light duty job, either with

or without reasonable accommodation.

As I was not permitted to return to work by the Defen-

dant because of my injury and disability, and I had a

family to take care of, I sought disability benefits through

the Defendant’s disability plan. In connection with this

application, I filled a “Statement for Continuance of Life

Insurance During Total Disability”. On or about April 15,

I filled out this form based on my understanding of my

App. 49

limitations at that time. I also had Dr. Osborn complete

the medical portion of this form, which he did on April

20, 1998.

According to Kirchner, I was denied disability benefits

because I had not been employed for ten years with the

Defendant. I did inform Dr. Osborn that I was not eligible

for disability benefits, but I did not ask him to change my

restrictions because of that. I do not recall when I learned

that I was not eligible for disability benefits, but I learned

it from Kirchner.

On or about May 4, 1998, Dr. Osborn examined me and

changed my restrictions from permanent to temporary

(for 8 weeks) effective May 8, 1998. (See also Def. Appdx.

196; Appdx. D 118-19). Dr. Osborn also determined that I

would not need to change job positions. (Def. Appdx.

155). These restrictions included no lifting over 25

pounds, no excessive bending, and no heavy pushing or

pulling. (Def. Appdx. 196). With these restrictions, I

would have been able to perform my previous Appren-

tice Operator/Floor Person job with reasonable accom-

modations, such as having one of the upkeeps assist me if

I needed help lifting, or changing the molds. I also could

have been placed in a light duty job, such as repack or

line attendant. I again presented my work release to

Kirchner, who again refused to permit me to return to.

work.

I also began seeing Richard Raughton, D.O. for medical

treatment in connection with my 1996 on-the-job injury in

May 1998. Dr. Raughton prescribed pain medication for

me, and I continue to see him on an as needed basis

(approximately every two months).

App. 50

Dr. Osborn provided me work permit slips for temporary

light duty on June 25, 1998 (for six weeks) and on July 27,

1998 (for eight weeks). (See also Def. Appdx. 198-99). I

presented these work release slips to Kirchner; however,

she continued to refuse to allow me to work, either with

or without reasonable accommodations.

After Kirchner would not permit me to return to work

after Dr. Osborn provided her with a list of specific jobs I

could perform, I contacted Kirchner to discuss what I

needed to do to return to work. I tape recorded this

telephone conversation (attached as Ex. A-1 is a true and

correct copy of the transcription of this tape which was

also an exhibit at my arbitration hearing). In this conver-

sation, Kirchner admitted that Osborn had given her the

answers she had asked for, but she still wanted more

details to make sure I “could do every single thing in that

job, and not just the general well, yeah, he can doit....’

(See also Appdx. A-1).

Because Kirchner was requesting another FCE in Septem-

ber 1998, I called the workers’ compensation insurance

“carrier and asked if I had to have the FCE performed at

BaylorWorx. It was my understanding from the workers’

compensation commission that it did not matter where I

had the FCE performed, and that the computerized FCE

machine at Sargent Rehabilitation Clinic was state of the

art. I then called Kirchner and asked her if the FCE could

be performed by Sargent Rehabilitation and Injury Clinic

rather than BaylorWorx. I did not want BaylorWorx to

perform the FCE because they employed Dr. Garrison, the

company doctor that had previously released me to

App. 51

return to work without restrictions and without perform-

ing an MRI when I had a herniated disk. Also, Baylor-

Worx had only a manual FCE as opposed to a

computerized FCE machine (which Sargent’s had).

Kirchner approved my request to have Sargent’s perform

the FCE. On or about September 23, 1998, I had the FCE

performed by Sargent on their computerized FCE

machine. (See Def. Appdx. 217). As a result of the FCE,

Dr. Osborn found that I was capable of performing the 5,

and possibly 6, “cold end” jobs he had previously

approved. (See also Def. Appdx. 218).

Despite having the FCE performed as Kirchner requested

and approved,-and despite Dr. Osborn’s consistent opin-

ion that I was capable of returning to work, the Defen-

dant still refused to permit me to return to work.

Kirchner wrote to Dr. Osborn in November 1998, and told

him she needed further clarification of the FCE results

before she could determine whether I could return to

work. (See Def. Appdx. 225).

In January 1999, Dr. Osborn made a tour of the plant

where I had worked at my request because Billy Webb

(union representative) instructed me that that was what

Kirchner had claimed was needed to get me back to work.

In a January 20, 1999 letter to Kirchner, Dr. Osborn con-

cluded that I could return to work as a Floor Person/

Apprentice Operator if I did not have to change out

molds. (See also Def. Appdx. 226). Dr. Osborn also stated

that I could perform various “cold end” jobs (lehr sam-

pler, repack and auditor) if I did not have to lift heavy

rolls of plastic or perform excessive bending. (See also

Def. Appdx. 226). I also could have performed the Line

Attendant job.

App. 52

The apprentice operator/floor person job involves work-

ing with molds. A mold is the piece of equipment that

actually shapes the bottle. The molds come in various

sizes for making 7 ounce, 12 ounce, 32 ounce and 40

ounce bottles. Regardless of the size of the mold, the

mold breaks down into three parts and the parts are

within my weight restrictions. When working with the

molds, a four wheel cart is used to transport the mold.

The cart is rolled over to the oven. The mold is taken out

of the oven by the Operator or the Upkeep by sliding it

out. The mold is then broken apart and cleaned. The

mold is then rolled over to the machine and installed on

the machine. Often, when I worked as an Apprentice

Operator, an upkeep person, who were regularly avail-

able, performed the mold change for me. When removing

the mold from the machine, it must be removed in pieces,

as opposed to as a single unit. Also, there are three

machines in the “hot end”, each one running various

sized molds at various times. The Defendant determined

which operator or apprentice operator ran which machine

at which time.

Still allegedly not satisfied with Dr. Osborn’s release,

Kirchner again did not put me back to work. Kirchner

told me there was no light duty work available in the

plant and I could not return to my former job.

During my employment with the Defendant, and prior to

my May 1996 injury, I had worked light duty jobs. This

included providing numbers from the machines to the

upkeep. I also observed other employees performing

light duty work, including repack work, painting. Cur-

rently, I am a Line Attendant.

App. 53

On March 8, 1999, Kirchner wrote to me and informed me

the company had a [sic] performed a job analysis and

wanted to match my ability with the essential job func-

tions. (See also Def. Appdx. 234). Despite Dr. Osborn’s

multiple return to work releases (the most recent in Janu-

ary 1999 after he toured the plant), Kirchner wanted me

to sign an authorization to have an unidentified third

party review my September 1998 FCE to determine if

there were jobs I could perform. (See also, Def. Appdx.

234-35).

My attorney responded to Kirchner’s request and

explained that I had been released to return to work by

Dr. Osborn and that she had provided no explanation as

to why his opinion was not acceptable or who the third

party was. (See Def. Appdx. 236). The Defendant's attor-

ney responded that it wanted BaylorWorx to make the job

assessment and that it viewed Dr. Osborn’s reports as

contradictory. (See Def. Appdx. 238-39). For the same

reasons I did not want BaylorWorx to perform my FCE, I

did not want them to now review it and make a deter-

mination of my ability to work.

On April 28, 1999, I filed the present lawsuit based on

discrimination under the Americans With Disabilities Act

and Section 451.001 of the Texas Labor Code.

After my lawsuit was filed, I received a letter dated July

19, 1999 from Todd H. Glawe, the Human Resources

Manager for the Defendant after Kirchner changed loca-

tions. (See Def. Appdx. 248). Glawe informed me that I

was eligible for a “cold end” job, but that the company

needed to determine what jobs I could safely perform and

that I needed to have another FCE performed by the

App. 54

company doctor. (See Def. Appdx. 248). For the same

reason I did not want BaylorWorx performing the Sep-

tember FCE, I did not want them performing one now.

Likewise, I did not want BaylorWorx to determine my

ability to return to work. I informed the Defendant that I

would not report to BaylorWorx for evaluation.

I was informed in a September 21, 1999 letter from Glawe

that I was being suspended for refusing to report to

BaylorWorx for evaluation. (See Def. App. 251). In

response to this notice of suspension, my attorney

informed the Defendant if they would not accept Dr.

Osborn’s reports, I would submit to additional medical

evaluation by a competent medical provider, but that I

would not submit to evaluation by BaylorWorx (for the

previously stated reasons). (See Def. Appdx. 252-53). My

attorney also informed the Defendant that had they

wanted an independent medical exam, they could have

requested one under Rule 35 of the Federal Rules of Civil

Procedure. (See Def. Appdx. 252).

The Defendant responded by stating that they now

needed a letter from Dr. Osborn stating that the FCE was

unchanged and they needed a medical records authoriza-

tion before I could be returned to work. Nearly a month

sooner, I had provided the Defendant with a medical

records authorization in response to Defendant’s Request

for Production in this case. Also, I had provided Baylor-

Worx an authorization to obtain medical records on me in

1996.

Although having the medical records authorization for

approximately 10 months, at the time my deposition was

taken in this case in June 2000, the Defendant was still

App. 55

maintaining that I had not provided a medical authoriza-

tion. My attorney wrote to the Defendant on June 13,

2000, after my deposition and confirmed that I had previ-

ously provided the medical authorization. (See Def.

Appdx. 255-56). My attorney also reminded Defendant

that I had provided Kirchner by and through Metro-

politan Life Insurance with a medical authorization in

1998. (See Def. Appdx. 255). My attorney again reiterated

that no request for a medical exam had been made that

was mutually agreeable to the parties, and reminded the

Defendant of my concerns about returning to Baylof-

Worx. (Def. Appdx. 255).

On June 26, 2000, I was offered reinstatement in a Utility /

Laborer position by the Defendant. (See also Def. Appdx.

261). I returned to work on August 2, 2000, but was

assigned to work as a Line Attendant. I worked as a Line

attendant from August 2 to August 5, 2000. On August

7in I was assigned to work in repack, which is a light

duty job that I had requested as early as March 1998. On

or about August 8, 2000, I was told by my supervisor,

Hugh Owens, that I would start training on a Line Atten-

dant job. I am currently working as a Line Attendant.

Also, Todd Lee, a “hot end” manager told me that I

would never be put back to work in the “hot end”.

I declare, under penalty of perjury, that the forgoing is

true and correct. Executed this 16th day of August, 2000.

/s/ Steve Middleton

Steve Middleton

App. 56

EXHIBIT A-1

IN THE MATTER OF ARBITRATION BETWEEN GLASS,

MOLDERS, POTTERY, PLASTICS AND ALLIED

WORKERS INTERNATIONAL UNION, AFL-CIO, CLC

AND

BALL-FOSTER GLASS CONTAINER CO., L.L.C.

GRIEVANCE: VIOLATION OF ARTICLE 33

GRIEVANCE NO. 125-35-98

TAKEN ON APRIL 10, 2000

VOLUME 1 >

[2] IN THE MATTER OF ARBITRATION BETWEEN

GLASS, MOLDERS, POTTERY, PLASTICS AND ALLIED

WORKERS INTERNATIONAL UNION, AFL-CIO, CLC

AND

BALL-FOSTER GLASS CONTAINER CO., L.L.C.

GRIEVANCE: VIOLATION OF ARTICLE 33

APPEARANCES:

BARNETT M. GOODSTEIN

4230 LBJ Freeway

Midway Tower, Suite 215

Dallas, Texas 75244

ARBITRATOR

RICHARD KOBDISH, ESQ.

DAVID DEITCHMAN, §£SQ.

Fulbright & Jaworski, L.L.P.

2200 Ross Avenue

Suite 2800

Dallas, Texas 75201

COUNSEL FOR COMPANY

App. 57

ADRIENNE A. BERRY, ESQ.

Segal, Stewart, Cutler, Catlett, Lindsay & Janes

2100 Waterfront Plaza.

325 West Main Street

Louisville, Kentucky 40202-4251

COUNSEL FOR UNION

ALSO PRESENT:

Billy F. Webb, Executive Officer

Stan Winters, President

Steve Middleton, Grievant

J.D. Grounds, Financial Secretary and

Business Committeeperson

Milford Jordan, Business Committeeperson

Thomas L. McKnight, Director, Labor Relations

Julia Kirchner, Quality Systems Specialist

Todd Glawe, Human Resources Manager

+ + +

Middleton: 9/4/98 at 3:33 p.m., trying to get in touch

with Julia Kirschner for the time today.

Toby: Ball-Foster Glass, this is Toby.

Middleton: Is Julia Kirschner in? This is Steve Mid-

dleton.

Toby: I think she is now, hold on.

Kirschner: Hello, Steve.

Middleton: Julia.

Kirschner: Hey.

Middleton: How are you?

Kirschner: Fine.

Middleton: Good.

Kirschner: What’s up?

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

App. 58

Well, the other day when I talked to you on

the phone I was kind of disgruntled. I’ve got

an uncle that died in Arkansas.

Oh, no. Sorry.

What is it exactly that I need to do?

You don’t need to do anything. I faxed that

information to Dr. Osborne.

Umm hmm.

Okay, and what he needs to do is and it says

in the letter is be more specific as far as

telling us what — how much you can lift or _

how much you can bend or squat or climb

or whatever and then write a prescription

for you for an FCE and that’s all he has to

do. Once he does that we set up an appoint-

ment for you at Baylor Works and then after

that then, you know, whatever they say

we'll go from there.

Okay.

And that’s it.

So -?

And I faxed that yesterday afternoon.

Okay. So, yeah, see I don’t see him until

Tuesday.

Okay.

So all the other stuff that me and you and

Darryl had talked about, that could be just

faxed over that I could do this certain job or

this certain job, all that’s gone out, right?

No, it hasn’t gone out. Cause he responded

— what we had wanted and maybe I didn’t

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

App. 59

ask it clearly enough, is for him to say like

for example I guess one of them was, shoot I

don’t even remember what they were, like

line attendant for example.

Right.

Let’s say he said I think Steve Middleton can

do line attendant job. Well we want to know

well why does he think that, can he do all of

it, can he do it because he can lift this much

weight or this - you know, can he stand or

does he have to sit every so often or things

like that, rather than what he did is gave us

a list of like four jobs that he thought you

could do, but that was too vague and so

that’s the only reason, that’s the only thing.

Okay, so he just didn’t answer y'all right?

He gave us the answer and actually I guess

in a way he gave us what we asked for but

because of what we've received from other

doctors, we kind of thought he would be a

little more detailed. So I just told him in the

letter. I said you know we appreciate his

response but we'd like a few more details so

we can make sure that you can do every

single thing in that job and not just the

general well, yeah, he can do it, you know,

pretty much type of thing. So that’s all.

Okay. Well, that’s what I was wondering.

Okay.

Because I was just — I just been in a pretty

weird state of mind anyway.

Oh, yeah, well I’m sorry that that happened.

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

Kirschner:

Middleton:

App. 60

Oh, well, it’s just one of those things that

happens, you know.

Yeah.

It was a distant uncle anyways. It wasn’t

someone that I was very close to. And we

can’t afford to make the trip up anyway so it

didn’t make a difference. I can’t ride that far

and we can’t go that far, so what can I say.

That’s just life.

Okay. Well hang in there. So, I guess -

But anyway, that’s what I was wondering.

Okay.

Is what I was going to have to do. Whether I

was going to have to do something special

or what it was I was going to have to do.

No, the only thing you'll have to do is once

we get his response and the prescription,

we'll set up an appointment for you and

you'll just have to you know go to the

appointment and that’s it.

Okey doke.

Alrighty?

Alright.

Thanks. Bye.

Bye. [End of conversation.]

App. 61

IN THE MATTER OF ARBITRATION BETWEEN GLASS,

MOLDERS, POTTERY, PLASTICS AND ALLIED

WORKERS INTERNATIONAL UNION, AFL-CIO, CLC

AND

BALL-FOSTER GLASS CONTAINER CO., L.L.C.

GRIEVANCE: VIOLATION OF ARTICLE 33

GRIEVANCE NO. 125-35-98

TAKEN ON APRIL 10, 200°

VOLUME 1

This is to certify that I. KRISTA WAGNER, reported

in shorthand the proceedings given at the time and place

set forth in the caption hereof, and that the above and

foregoing 280 pages contain a full, true and correct tran-

script of said statement.

CERTIFIED TO on this the 25th day of April, 2000.

/s/ KRISTA WAGNER

KRISTA WAGNER, CSR

Certified Shorthand Reporter

Certification No. 6251

Expires 12/31/01

PREFERRED LEGAL SERVICES, INC.

8235 Douglas Avenue, Suite 710

Dallas, Texas 75225

(214) 750-0047

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