# Petition for Writ of Certiorari — Middleton v. Ball-Foster Glass Container Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1754%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 536 U.S. 924 ## Text >, Supreme Court, L rien 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 N 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 6. 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: l 5 ae 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 lV TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ........... i gv.) ft! ~ Bees Bye m1 1) | Cena . ill py) 8 a es oy) errr iv pet 8 ee wi iy. rrr rer rrr a GP IO BOE oo vec c cb snccscsensbepsticnsatess 1 SEALE OEEINS COP FURIE BIRIIW sos ccc secenseceess ] 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 Vi 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 (C) being regarded as having an impair- 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). 4 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) a 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 10 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, 11 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) 12 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) + 13 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 14 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. 15 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. 16 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 17 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. 18 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. 7 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) 20 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 21 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) 22 §§ 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” 23 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. 24 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. 25 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 26 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. 27 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 28 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 29 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. 30 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, V. 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 V. 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, ~ N 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. rr 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. ' i 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 P| 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. i. 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 A 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- ahachi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1754%3A1. Public record. Not legal advice.