Michael Boitnott v. Corning Incorporated

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 7:06-cv-00330-JCT Paper copies to all parties and the district court/agency. [998785781]. [10-1769]

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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL R. BOITNOTT,
Plaintiff-Appellant,
v.
CORNING INCORPORATED,
Defendant-Appellee.

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No. 10-1769

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Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(7:06-cv-00330-JCT)
Argued: December 8, 2011
Decided: February 10, 2012
Before GREGORY and SHEDD, Circuit Judges, and
Richard M. GERGEL, United States District Judge for the
District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Gergel wrote the opinion, in which Judge Gregory and Judge Shedd joined.

COUNSEL
ARGUED: Terry Neill Grimes, GRIMES & WILLIAMS,
P.C., Roanoke, Virginia, for Appellant. Clinton Stephen
Morse, LECLAIRRYAN, PC, Roanoke, Virginia, for Appel-

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lee. ON BRIEF: Joseph M. Rainsbury, LECLAIRRYAN,
PC, Roanoke, Virginia, for Appellee.

OPINION
GERGEL, District Judge:
This case involves a claim brought by Michael R. Boitnott
("Boitnott") against his employer, Corning Incorporated
("Corning"), under the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq., in which Boitnott
asserted that his inability to work more than eight hours per
day and rotate day/night shifts as a result of physical impairments rendered him disabled under the ADA. Boitnott further
asserted that Corning had violated the ADA by failing to provide him a "reasonable accommodation" for his disability.
Corning responded that, since Boitnott was physically able to
work a normal forty hour work week and had not demonstrated that his impairments significantly restricted the class
of jobs or a broad range of jobs available to him, he could not
establish that he had a "substantial" limitation upon which to
base a claim of disability under the ADA. The District Court
granted summary judgment to Corning.1 We affirm.
I.
Boitnott began work with Corning as a maintenance engineer in 1989. He worked rotating twelve hour shifts and alternated two weeks of day shifts with two weeks of night shifts.
J.A. 603.2 Boitnott’s work schedule was typical for Corning,
1

The District Court also ruled that, even if Boitnott was determined to
be disabled under the ADA, he was not a "qualified individual" because
he could not perform "essential functions of the employment position" due
to his inability to perform overtime or rotating shifts. Since we find that
Boitnott was not disabled under the ADA, we find it unnecessary to reach
this issue.
2
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties to this appeal.

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which sought to promote efficiency and continuity across a
twenty four hour production process by limiting its work
force primarily to two twelve hour shifts and by rotating
employees between daytime and nighttime schedules. J.A.
220-221. Boitnott was on leave from his position with Corning in May 2002 because of abdominal problems when he
had a heart attack, which resulted in an additional period of
absence. Boitnott returned to work with Corning in September
2002 to his rotating twelve hour shifts but he experienced further cardiac difficulties and treatment that required additional
periods of absence. Boitnott took additional leave in November 2003 because of complaints of fatigue and was subsequently diagnosed with leukemia. His physicians determined
that the leukemia did not require any treatment at that time.
J.A. 654.
Boitnott advised Corning in February 2004 that he was prepared to return to work but provided a physician’s statement
that he was limited to working no longer than eight hours per
day. J.A. 512. Since Boitnott, according to his treating physician, was capable of working a normal eight hour day and
forty hour week, Corning took the position that he was not
disabled under the ADA. Boitnott did not return to his twelve
hour rotating shift and, instead, applied for long-term disability benefits with Corning’s disability carrier, MetLife, and
filed a charge of discrimination in May 2004 with the Equal
Employment Opportunity Commission ("EEOC"). The charge
of discrimination alleged that Corning had failed to provide
Boitnott "reasonable accommodation" since his effort to
return to work on February 16, 2004. J.A. 482.
MetLife initially granted Boitnott long-term disability benefits in May 2004 but terminated those benefits effective
October 1, 2004 because Boitnott was capable of working a
normal forty hour work week and there existed maintenance
engineer positions in the area that did not require overtime
work. J.A. 412-414. Subsequent to the termination of longterm disability benefits, Boitnott renewed his efforts to return

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to work. He indicated an interest in a limited class of day shift
positions with Corning, but these jobs required ten hour days
and some overtime. Corning advised Boitnott through his
union representatives that the treating physician’s limitation
on working no longer than eight hours per day remained a
problem and requested that Boitnott advise the company if his
medical condition changed. J.A. 408. On December 30, 2004,
the EEOC issued a determination that there was "reasonable
cause" to believe that Boitnott’s rights under the ADA had
been violated by Corning. J.A. 484-485.
On January 18, 2005, one of Boitnott’s treating physicians
indicated that he could return to work up to ten hours per day,
four days per week, but made no provision for overtime. J.A.
427. Another health care provider for Boitnott forwarded Corning a new medical certificate dated April 28, 2005, indicating that Boitnott was now capable of working ten hours per
day plus a "moderate" amount of overtime. J.A. 547. This
new certificate represented the first instance since Boitnott
had gone on leave where his treating physicians had lifted the
restriction against his performance of overtime work. J.A.
409.
With the lifting of the restriction on Boitnott’s performance
of overtime work, Corning and the union began working
toward a resolution of the issue of Boitnott’s return to work.
None of the limited number of day shift positions were then
available. J.A. 409. Corning, however, entered into negotiations with the union on the creation of a new position in the
maintenance department which was limited to day shift work
of eight hours per day plus overtime. This culminated in a
written agreement between the union and Corning on July 8,
2005 that authorized the creation of the new position and the
right of Boitnott to apply for the position despite the fact that
he was not then on active status. J.A. 389-390. The new position was posted on July 27, 2005, and when the posting
expired on August 13, 2005, Boitnott was hired for the position. J.A. 391. Boitnott formally returned to work with Cor-

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ning on September 5, 2005 and continues to work in the same
position with the company.
II.
The ADA prohibits any covered employer from discriminating against "a qualified individual with a disability because
of the disability . . . in regard to . . . hiring, advancement, or
discharge" of the employee or "other terms, conditions and
privileges of employment." 42 U.S.C. § 12112(a). The Act
defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position . . . ." 42 U.S.C. § 12111(8). The Act
defines "disability" as "a physical or mental impairment that
substantially limits one or more major life activities of such
individual." 42 U.S.C. § 12102(1)(a).
Courts have struggled with the meaning of the term "major
life activity" and, in particular, whether work constitutes "a
major life activity." See Toyota Motor Mfg. v. Williams, 534
U.S. 184, 199-200 (2002); Sutton v. United Airlines, Inc., 527
U.S. 471, 492 (1999). Sutton ultimately addressed the conundrum by concluding that, if the employee otherwise could not
demonstrate that his impairments substantially limited a
"major life activity," the lower courts, as a "last resort," could
then consider whether the employee’s impairments substantially limited his or her ability to work. Sutton, 527 U.S. at 492.3
3

Congress resolved this issue in 2008 amendments to the ADA by
adding the term "working" to the general definition of "major life activities." 42 U.S.C. § 12102(2)(A). This amendment was effective January 1,
2009. Congress did not, however, make the amendment retroactive. See
Shin v. University of Maryland Med. Sys. Corp., No. 09-1126, 2010 WL
850176, at *5 (4th Cir. March 11, 2010). Since the Court ultimately
assumes under Sutton that working is a "major life activity" for purposes
of the analysis in this case, it is immaterial that the 2008 amendments are
not given retroactive effect.

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A plaintiff seeking to establish that he or she is disabled
under the ADA must further show that any impairment "substantially limits" one or more major life activities. See 42
U.S.C. § 12102(1)(a). In the context of the ability to work, the
plaintiff must show that the impairment "significantly
restricted . . . the ability to perform either a class of jobs or
a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3). Further, the "inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working." Id.4
Numerous sister circuits have addressed the issue of
whether an employee under the ADA is "substantially limited" in "one or more major life activities" if the employee is
capable of working a normal forty hour work week but is not
able to work overtime because of a physical or mental impairment. All circuit courts which have addressed this issue have
held that an employee under the ADA is not "substantially"
limited if he or she can handle a forty hour work week but is
incapable of performing overtime due to an impairment. See
Bialko v. Quaker Oats Co., 434 Fed. Appx. 139, 142 (3d Cir.
2011); Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598-99 (6th
Cir. 2002); Miller v. Sw. Bell Tel. Co., No. 01-21318, 2002
WL 31415083, at *5 (5th Cir. Oct. 7, 2002); Kellogg v. Union
Pac. R. R. Co., 233 F.3d 1083, 1087-88 (8th Cir. 2000); Taylor v. Nimock’s Oil Co., 214 F.3d 957, 960-61 (8th Cir. 2000);
Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d 538, 542
(1st Cir. 1999); Berg v. Norand Corp., 169 F.3d 1140, 1145
(8th Cir. 1999); see also, Parkinson v. Anne Arundel Med.
Ctr., 214 F.Supp.2d 511, 514-15 (D. Md. 2002) ("[C]ourts
4

The current version of 29 C.F.R. § 1630.2, which became effective on
May 24, 2011, following the adoption of the 2008 amendments to the
ADA, does not contain language providing that "substantially limits"
requires a restriction in the ability to perform a "class of jobs or a broad
range of jobs." As previously mentioned, the 2008 amendments were not
made retroactive.

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have uniformly held that ‘an inability to work overtime is not
a substantial limitation on the ability to work.’"). A number
of courts have further held that plaintiffs, in their particular
cases, were unable to show that the inability to work overtime
significantly restricted their ability to perform "a class of jobs
or a broad range of jobs in various classes." See Taylor, 214
F.3d at 961 ("Taylor has not shown that working 40 hours a
week and lifting no more than 10 pounds limits her employment opportunities in her geographic area."); Berg, 169 F.3d
at 1145 ("Berg has failed to show any class of jobs or broad
range of jobs from different classes from which she is
excluded . . . ."); Tardie, 168 F.3d at 542 ("[T]here are vast
employment opportunities available which require only 40
hour work weeks."); Parkinson, 214 F.Supp.2d at 515 (Plaintiff "has presented no evidence" that "his inability to work
overtime would disqualify him from numerous jobs in the
health care profession.").
III.
This Court reviews the District Court’s grant of summary
judgment de novo. Laber v. Harvey, 438 F.3d 404, 415 (4th
Cir. 2006). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Id. For purposes of reviewing the grant of summary judgment, "[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
It is important to note from the outset the limited time
period at issue in this case. Boitnott alleges a failure to provide him a reasonable accommodation from the time he
sought to return to work on February 14, 2004 until the time
he actually returned to work on September 5, 2005. However,
for a portion of this time, from May 2004 through September

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2004, Boitnott was on long-term disability with Corning’s
disability carrier, MetLife. Further, Boitnott’s physician indicated that his return to work in February 2004 was conditioned on his working no longer than eight hours per day. J.A.
512. Boitnott was not cleared by his physician to work overtime until late April 2005. J.A. 547. Once that hurdle was
overcome, Corning moved deliberately through the collective
bargaining process to obtain agreement with the union to
create a new day time position in the maintenance department
and to allow Boitnott to apply for the position from an inactive status. When an agreement was finally reached between
Corning and Boitnott’s union on July 8, 2005, the new position was promptly posted and Boitnott was selected as soon
as the time for posting had expired. J.A. 389-391.
The uncontested facts set forth above establish that the primary impediment to Boitnott’s return to work was his inability to perform overtime work.5 From February 2004 forward,
he was consistently cleared to work a normal eight hour day
and/or a forty hour week. Assuming for purposes of this analysis that Boitnott’s alleged inability to work could constitute,
pursuant to Sutton, a "major life activity" we would then be
confronted squarely with the question of whether Boitnott’s
ability to work was "substantially limit[ed]" where he was
capable of working forty hours per week but was unable to
perform overtime work due to his impairments. The overwhelming and uniform authority from numerous sister circuits
is that an inability to perform overtime work, standing alone,
is not a "substantial" limitation under the ADA. See Bialko,
434 Fed. Appx. at 142; Cotter, 287 F.3d at 598-99; Miller,
2002 WL 31415083, at *5; Kellogg, 233 F.3d at 1087-88;
5

Corning initially asserted that Boitnott’s inability to work overtime and
rotating shifts were impediments to his returning to work. The record is
uncontested, however, that once Boitnott was cleared to work overtime
Corning no longer insisted that he work rotating shifts as a condition of
his return. Therefore, we have analyzed this case on the basis of Boitnott’s
inability to perform overtime work and whether such a restriction constituted a substantial limitation on a major life activity under the ADA.

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Taylor, 214 F.3d at 960-61; Tardie, 168 F.3d at 542; Berg,
169 F.3d at 1145. We find the reasoning of such authorities
persuasive and, therefore, join the other circuits in holding
that an inability to work overtime does not constitute a "substantial" limitation on a major life activity under the ADA.
We have also reviewed the record, in a light most favorable
to Boitnott as the non-moving party, to determine if there was
evidence to demonstrate that his inability to work overtime
"significantly restricted" his "ability to perform either a class
of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills
and abilities." 29 C.F.R. § 1630.2(j)(3). This individualized
inquiry is in recognition that Boitnott’s particular impairments
and/or the labor market in his area could, under certain circumstances, make his inability to work overtime a substantial
restriction on a class of jobs or a broad range of jobs in his
area of maintenance engineering. See Cotter, 287 F.3d at 598;
Kellogg, 233 F.3d at 1087. The record contains no evidence
indicating that Boitnott’s inability to work overtime "significantly restricted" his ability to perform a class of jobs or a
broad range of jobs in various classes.
IV.
Based upon the foregoing, we conclude that Boitnott’s
inability to work overtime did not constitute a substantial limitation on a major life activity and that he was, consequently,
not disabled under the ADA. Therefore, the decision of the
District Court is
AFFIRMED.