Williams v. Goodyear Tire and Rubber Company, The
Filing
81
MEMORANDUM AND ORDER granting 69 Motion for Summary Judgment. Signed by District Judge Richard D. Rogers on 12/7/2011. (bt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PATRICK WILLIAMS,
Plaintiff,
vs.
Case No. 09-4105-RDR
GOODYEAR TIRE AND RUBBER
COMPANY,
Defendant.
MEMORANDUM AND ORDER
This is an employment discrimination action brought by Patrick
Williams against his former employer, The Goodyear Tire and Rubber
Company (Goodyear).
Williams asserts a claim under the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12112 et seq., and a state
retaliatory discharge claim.
This matter is presently before the
court upon Goodyear’s motion for summary judgment.
I.
Williams contends that he was fired from him his employment
with Goodyear because Goodyear regarded him as disabled under the
ADA.
He suggests that Goodyear terminated him when it discovered
that he had filed prior workers’ compensation claims, received
disability ratings and had been paid compensation.
He further
contends, under Kansas law, that he was terminated by Goodyear
because of his history of workers’ compensation claims and benefits
received under Kansas law.
In the instant motion, Goodyear argues that it is entitled to
summary judgment on both claims asserted by Williams.
Goodyear
initially contends that Williams has not established a prima facie
case under the ADA because he has not demonstrated that he was
regarded as a disabled person by Goodyear.
that,
even
if
Williams
can
establish
a
Goodyear next argues
prima
facie
case
of
discrimination, summary judgment is proper under the ADA because he
has not presented any competent evidence that Goodyear terminated
his employment because he was regarded as disabled.
Goodyear
asserts that the facts in the record show that Williams was
terminated due to his intentional failure to disclose during the
employment process several previous employers and past head and
knee injuries.
For this reason, Goodyear also contends that it is
entitled to summary judgment on Williams’ supplemental state law
claim. In the alternative, Goodyear contends that the court should
decline to exercise supplemental jurisdiction over Williams’ state
law claim if summary judgment is granted to it on the ADA claim.
II.
Summary
judgment
is
appropriate
if
the
moving
party
demonstrates that there is “no genuine issue as to any material
fact” and that it is “entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In applying this standard, the court views the
evidence and all reasonable inferences therefrom in the light most
favorable to the nonmoving party.
Adler v. Wal–Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus.
2
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“material”
if,
under
the
applicable
substantive
“essential to the proper disposition of the claim.”
A fact is
law,
it
is
Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
An
issue of fact is “genuine” if “there is sufficient evidence on each
side so that a rational trier of fact could resolve the issue
either way.”
Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an
absence of a genuine issue of material fact and entitlement to
judgment as a matter of law.
Id. at 670–71.
In attempting to meet
that standard, a movant that does not bear the ultimate burden of
persuasion at trial need not negate the other party's claim;
rather, the movant need simply point out to the court a lack of
evidence for the other party on an essential element of that
party's claim.
Id. at 671 (citing Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts
to the nonmoving party to “set forth specific facts showing that
there is a genuine issue for trial.”
Anderson, 477 U.S. at 256;
see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on
summary judgment).
The nonmoving party may not simply rest upon
its pleadings to satisfy its burden.
Anderson, 477 U.S. at 256.
Rather, the nonmoving party must “set forth specific facts that
would be admissible in evidence in the event of trial from which a
3
rational trier of fact could find for the nonmovant.”
F.3d at 671.
reference
Adler, 144
“To accomplish this, the facts must be identified by
to
affidavits,
deposition
exhibits incorporated therein.”
transcripts,
or
specific
Id.
Finally, the court notes that summary judgment is not a
“disfavored
procedural
shortcut;”
rather,
it
is
an
important
procedure “designed to secure the just, speedy and inexpensive
determination of every action.”
Celotex, 477 U.S. at 327 (quoting
Fed.R.Civ.P. 1).
III.
The following facts are not controverted in the record or are
viewed in the light most favorable to Williams.
On
May 27, 2008,
Williams completed an application for employment at Goodyear.
employment
application
provided:
“I
understand
that
The
my
misrepresentation of the information provided herein or on any
other documentation provided to The Goodyear Tire & Rubber Company
Inc. shall constitute just cause for termination of the interview
or, if applicable, continued employment without prior notice.”
Williams
signed
his
name
directly
below
this
statement,
acknowledging that he read and understood this provision.
The employment application required a list of all previous
employers:
“ACCOUNT FOR ALL YOUR TIME – REGARDLESS OF HOW SPENT
(INCLUDING MILITARY).”
Williams identified only three employers:
(1) Studer Truck Lines (2007 to present); (2) Mid Cities (December
4
2006 to July 2007); and Ranger Trucking (March 1999 to November
2004). Williams has stated that he was told by a Goodyear employee
to write down only the longest position with an employer if two
jobs overlapped.
Williams’ employment history from 1996 to the time of the
application was as follows:
Shirley Construction (1996 or 1997);
Suhler Truck Line (several months in 1997); Alamo Group (April 1997
to April 1998); Larry Meier Trucking (April 1998 to March 1999);
All Freight Trucking (January 2002 to April 2002); Mt. Bethel
Trucking
(July
2002
to
December
2002);
Club
Security
and
Investigation (2006); Ranger Trucking (March 1999 to present); Mid
Cities (December 2006 to July 2007); and Studer Truck Lines
(September 2007 to July 2008).
Williams had also previously been
employed at Osborne, Sindaco, Aljon United and some fast food
restaurants.
In the employment application, Williams failed to identify
the two prior employers at which he had suffered on-the-job
injuries which resulted in missed work and disability ratings:
Suhler Trucking and All Freight Trucking.
failed
to
list
several
other
The application also
employers,
including
Shirley
Construction, Aljon, Alamo and Club Security.
As part of the employment process, Williams was required to
fill out a medical questionnaire. Williams did so on June 17, 2008
after he received a conditional offer of employment. In connection
5
with the medical questionnaire, Goodyear asked Williams to consent
to a release of his workers’ compensation records.
Williams
consented to the release of his workers’ compensation records on
June 17, 2008.
Goodyear obtained the records on June 18, 2008.
The medical questionnaire inquired:
“DO YOU NOW HAVE OR HAVE
YOU EVER HAD” the following:
No. 2 “Head injury–-concussion, skull fracture,
etc.?” Williams originally checked the “No” box, but
then crossed that out and checked the “Yes” box.
He
wrote off to the side in the area marked “GIVE DATE AND
DETAILS FOR ALL ‘YES’ ANSWERS” the following: “2. Hit
with door–-2001.”
No. 3 “Headaches?–-If yes, indicate frequency,
severity?” Williams checked the “No” box.
No. 11 “Disorder of the musculo-skeletal system-back trouble, knee trouble, painful or swollen joints,
bone fracture, gout, arthritis, amputation, etc.?”
Williams checked the “No” box.
No. 21 “Have you ever had any surgical operations?”
Williams checked the “Yes” box.
He wrote “21. Gall
Bladder, scope of knee, shoulder.” The other comments
next to these notes on the questionnaire were made by the
doctor who performed the medical examination, Dr. Kim
Davies. Dr. Davies wrote “chole,” “2004,” “1997," and
“acromiopasty release.” Dr. Davies did not make comments
about the knee scope because Williams had indicated that
the scope was minor and/or he was not experiencing any
current problems with this knee.
No. 26 “Have you ever been unable to do or hold a
job because of: Sensitivity to chemicals? Inability to
perform certain motions?
Inability to assume certain
positions? Other physical or mental reasons?” Williams
checked the “No” box after sensitivity to chemicals and
failed to check the other three boxes.
No. 27 “Have you ever been absent from work due to
an injury or illness related to your work for a previous
employer?” Williams checked the “Yes” box. He wrote the
following: “27 When hit with door, 2001; bladder–3/2008.”
Dr. Davies conducted the medical examination.
Dr. Davies had
a copy of the questionnaire during the examination and went over
6
the
questionnaire
with
Williams
to
clarify
answers.
The
examination included a physical, a hearing test and an eye test.
Williams also took a pulmonary function test, urine screen and hair
test.
On the hearing evaluation form, Williams indicated that he had
been hit in the head with a trailer door.
Dr. Davies wrote the
word, “concussion,” which was in relation to Williams being hit in
the head with the door. Dr. Davies reported that Williams provided
her that information. She did not write any further comments. She
indicated that she would have noted any other symptoms if Williams
had indicated that he suffered from them.
Dr. Davies could have
ordered
if
an
extensive
neurological
exam
she
believed
the
concussion was serious or if she had reason to suspect that
Williams was not being forthcoming about his symptoms.
Dr. Davies
did not have Williams’ past workers’ compensation records when she
performed his medical examination.
Williams spoke to Dr. Davies
about his head and knee injuries, i.e., the nature of the incidents
and the issues he had concerning the injuries, during his preplacement
testing.
Dr.
Davies
cleared
Williams
without
any
restrictions.
Goodyear has an on-site occupational medical unit staffed by
nurses on a 24/7 basis.
The medical unit requests workers’
compensation records on all Goodyear new hires. If inconsistencies
are discovered between the information provided by the employee and
7
those
records,
the
medical
unit
alerts
Cindy
Nace,
Workers’
Compensation and Employee Benefits Manager, who then investigates
further.
Williams’ workers’ compensation records showed that he had
worked at Sonic, Shirley Construction, Aljon, Suhler Trucking,
Alamo, All Freight, Club Security, and Mid Cities, all employers
which Williams failed to disclose in his employment application.
The records further revealed that Williams had sustained two
workplace injuries that resulted in time off from work.
The
records showed that Williams had injured his knee at Suhler
Trucking in 1997 and suffered a head injury at All Freight in 2002,
both of which resulted in the receipt of temporary total benefits
and lump sum settlements.
A nurse informed Nace that Williams’ medical questionnaire was
inconsistent with the workers’ compensation records that Goodyear
had received.
his
workers'
Nace reviewed Williams’ medical questionnaire and
compensation
documents
and
determined
that
the
information contained in Williams’ medical questionnaire failed to
match up to the records received from the Kansas Division of
Workers’ Compensation.
At her deposition, Nace identified specific inconsistencies.
First, on the medical questionnaire, Williams checked the "No" box
on No. 11 (swollen joint, knee trouble), but then indicated in
response to a different question that he had a scope of his knee.
8
Second, on the medical questionnaire, Williams checked the "No" box
for No. 2 (head injury, concussions, skull fractures) and then
changed it and marked the "Yes" box.
The workers’ compensation
records showed that Williams had suffered a head injury and there
was
some
permanency
related
identified by Williams.
to
that
injury,
which
was
not
Third, the workers’ compensation records
showed that Williams had suffered a knee injury and there was some
permanency related to that injury, which was not identified by
Williams in No. 11 on the
medical questionnaire.
Fourth, on the
medical questionnaire, Williams checked the "Yes" box for No. 27
(whether he had missed work due to an injury or illness related to
his work at a previous employer), but identified only that he had
been hit with a door in 2001.
The workers’ compensation records
showed that Williams was absent from work for an extended period of
time due to the knee injury.
Williams’ knee surgery and extended
absence from work were not disclosed on the medical questionnaire
at No. 11.
On July 3, 2008, Nace sent an e-mail to Heather McMurphey,
Human Resource Generalist, stating, “I need to speak to you ASAP
about Patrick Williams and some info from his medical exam period.
He is to start work 7/7/08.” Nace sent the e-mail because Williams
had failed to disclose information on his medical questionnaire.
According to Nace, she believed “there was some -- there may be
additional information that ha[d] not been disclosed.”
9
Williams began general training at Goodyear on July 7, 2008.
Williams had not been assigned a specific job when he began
employment, but was told at some point that he was going to be
assigned to clean-up relief. A few days after he began training at
Goodyear, Williams provided a resumé to the Plant Manager in order
to be considered for participation in training for skilled trades
and craft jobs.
work history:
On his resume, Williams identified the following
Studer (September 2007-Current); Mid Cities (12/06-
7/07); Ranger Trucking (01/03-11/04); All Freight Trucking
04/02); and Ranger Trucking (03/99-01/02).
01/02-
His resume failed to
disclose employment at Suhler Trucking where he sustained the knee
injury or Club Security where he suffered a shoulder injury.
Charles Hollis, Human Resources Manager for the Topeka facility,
had not seen a copy of Williams’ resumé at the time of termination.
Nace reported the inconsistencies she had discovered to Hollis
and
Tony
McCauley,
Human
Resources
Services
Manager.
Hollis
recalled that Nace showed him Williams’ employment application and
medical questionnaire.
Hollis also recalled that Nace “found some
things that didn’t look quite right . . . maybe had falsified or
left some information off his application.”
He and Nace spoke
about Williams’ knee and head injuries, and about the workers’
compensation records. Hollis instructed Nace to schedule a meeting
with Williams to investigate the inconsistencies she had discovered
and then report back to him after the meeting.
10
On July 11, 2008, Nace met with Williams.
Connie Fulton,
Human Resource Specialist, was also present during the meeting.
Nace
inquired
about
Williams’
head
injury
workers’ compensation claim and settlement.
workers’
compensation
docket
sheet
and
the
resulting
She showed him the
relating
to
this
injury.
Williams was unable to recall if Nace inquired about absences
relating to this injury. Nace testified that Williams informed her
that he had missed only a short amount of work due to the injury,
which contradicted the workers’ compensation records. Williams was
unable to recall how he responded to Nace’s questions about the
basis for the workers’ compensation settlement. According to Nace,
Williams denied any residual effects or that any physician had
given him a rating for any permanent residual effect or impairment.
Williams was unable to recall if Nace asked why he had checked the
"No" box for No. 26 (ever unable to do or hold a job because of .
. . physical reasons). When questioned at his deposition about No.
26, Williams testified that apart from the absences relating to his
knee and head injuries, he had never been told he could not work.
Because Williams had told Nace that he had been told by All Freight
that he could not return to work driving a truck there based upon
what the doctor had said, she believed Williams should have checked
the
"Yes"
box
for
No.
26.
Nace
stated
that
the
workers’
compensation documents showed that Williams was given a permanent
impairment
rating.
In
Nace’s
opinion,
11
Williams
should
have
disclosed
the
questionnaire.
information
about
the
rating
on
his
medical
Williams discussed his knee injury with Nace.
Williams recalled only that Nace had inquired about his workers’
compensation claim and that she had showed him the workers’
compensation docket sheet relating to that injury.
Nace recalled
that Williams told her that the injury was personal and not workrelated, which is why he had not disclosed the injury, and that
when
she
confronted
him
about
his
absences
and
workers’
compensation claim/settlement with Suhler Trucking, Williams failed
to respond.
Fulton left the meeting believing that Williams had not been
truthful. Fulton said that Williams’ story shifted and his answers
changed throughout the meeting.
would
answer
one
way
and
then
According to Fulton, Williams
change
his
answer
after
Nace
challenged him with supporting documentation. One issue that stuck
out in Fulton’s mind was that Williams denied being hurt at work,
but later remembered that he had been hit in the head with a garage
door when Nace mentioned the incident.
Upon hearing his response,
Fulton recalled, “I’m thinking, okay, if you get hit by a garage
door that's something I don’t think
you’ll forget.”
Fulton later
conveyed her conclusion about Williams’ untruthfulness to Hollis.
Nace met with Hollis after her meeting with Williams and
reported the following:
(1) that Williams had filled out and
understood the medical questionnaire; (2) that Williams initially
12
denied a workers’ compensation settlement concerning head and knee
injuries; (3) that Williams denied any permanent impairments or
disabilities;
(4)
that
Williams
had
received
a
permanent
impairment rating on his head injury pursuant to his workers’
compensation claim/settlement; (5) that Williams admitted that he
did not return to work after his head injury due to residual
effects; (6) that Williams indicated he had not disclosed his knee
injury because it was not a work-related injury; and (7) that
Williams was evasive with some of his answers.
Both McCauley and
Fulton were present during the meeting. Hollis recollected that he
and Nace also discussed the fact that Williams had not identified
all of his employers on his employment application, significantly
those where he had suffered on-the-job injuries. When Hollis asked
Nace, McCauley and Fulton their opinions about Williams, each
indicated
a
information.
belief
that
Williams
had
intentionally
omitted
Fulton confirmed Nace’s summary of the meeting to
Hollis--that Williams “didn’t have his story straight or we caught
him or she caught him in several lies.”
After listening to Nace
and
to
Fulton,
employment.
Hollis
made
the
decision
terminate
Williams’
The discrepancies, the failure to disclose, and the
lack of candor in regard to the head and knee injuries were factors
in his decision to discharge Williams. Hollis also discovered that
Williams had failed to identify all of his prior employers on his
employment application.
The key element for Hollis was that
13
Williams omitted All Freight and Suhler Trucking from the list of
prior employers on his employment application.
Hollis
testified,
“And I think kind of the telling part for me was that the two jobs
that were left off were the two where Workers’ Comp injuries
occurred.
They were specifically the ones that were left out.”
Neither Nace nor Hollis spoke to Dr. Davies about Williams.
When questioned at his deposition why he failed to identify
All Freight or Suhler on his employment application, Williams
testified that the application “asked only for three to five years
of employment history.” Upon review of his employment application,
however, Williams conceded that it did not have a time limit or a
limit as to the number of prior employers.
On July 11, 2008, McCauley met with Williams and provided him
a letter that stated, “This letter is to confirm your probationary
release from employment for falsifying pre-employment medical
information.”
IV.
The ADA prohibits employers from discriminating on the basis
of disability.
42 U.S.C. § 12112(a).
facie case of ADA discrimination are:
The elements of a prima
(1) plaintiff is a disabled
person as defined by the ADA; (2) plaintiff is qualified, with or
without
reasonable
accommodation,
to
perform
the
essential
functions of the job held or desired; and (3) plaintiff suffered
discrimination by an employer or prospective employer.
14
Zwygart v.
Bd. of County Comm’rs of Jefferson County, Kan., 483 F.3d 1086,
1090 (10th Cir. 2007).
The statute defines disability as “(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 such an
impairment.” 42 U.S.C. § 12102(2). “Major life activities include
such functions as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, sleeping,
sitting, standing, lifting, reaching, and working.”
Rakity v.
Dillon Cos., 302 F.3d 1152, 1158 (10th Cir. 2002) (quoting Doyal v.
Oklahoma Heart, Inc., 213 F.3d 4982, 495-96 (10th Cir. 2000)).
A person is “regarded as” disabled when (1) a covered entity
mistakenly believes that a person has a physical impairment that
substantially limits one or more major life activities, or (2) a
covered entity mistakenly believes that an actual, nonlimiting
impairment substantially limits one or more major life activities.”
Johnson v. Weld County, Colo., 594 F.3d 1202, 1219 (10th Cir. 2010)
(brackets and internal quotation marks omitted).
In either case,
the focus of the court is on an employer’s subjective state of
mind.
Justice v. Crown Cork and Seal Co., Inc., 527 F.3d 1080,
1086 (10th Cir. 2008).
The question for the court is:
“[D]id the
employer mistakenly believe that the plaintiff was substantially
limited in performing a major life activity?”
Id.
Working is a
“major life activity.” 29 C.F.R. § 1630.2(i); EEOC v. Heartway
15
Corp., 466 F.3d 1156, 1162 (10th Cir. 2006).
To prevail on a claim
that his employer regarded him as substantially limited in the
major life activity of working, a plaintiff must demonstrate that
his employer regarded him as significantly restricted in performing
either (1) a class of jobs; or (2) a broad range of jobs in various
classes.
See Heartway, 466 F.3d at 1163 (holding that “there must
be sufficient evidence that the employer subjectively believed the
employee to be significantly restricted as to a class of jobs or
broad range of jobs in various classes.”).
The EEOC’s regulations
define a “class of jobs” as “[t]he job from which the individual
has been disqualified because of an impairment, and the number and
types of jobs utilizing similar training, knowledge, skills or
abilities, within that geographical area, from which the individual
is also disqualified because of the impairment.” 29 C.F.R. §
1630.2(j)(3)(ii)(B).
A “broad range of jobs” is defined as “[t]he
job from which the individual has been disqualified because of an
impairment, and the number and types of other jobs not utilizing
similar training, knowledge, skills or abilities, within that
geographical area, from which the individual is also disqualified
because of the impairment.”
Id. § 630.2(j)(3)(ii)(C).
To survive summary judgment here, plaintiff must present some
evidence
that
Goodyear
believed
that
he
was
“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
16
person
having
Heartway
comparable
Corp.,
(j)(3)(I)).
466
F.3d
training,
at
1162
skills,
(quoting
and
29
abilities.”
C.F.R.
1630.2
The Tenth Circuit has explained the burden on the
plaintiff as follows:
It is particularly difficult for a plaintiff to prevail
on this type of claim, which takes a plaintiff to the
farthest reaches of the ADA.
It is not, however, an
insurmountable showing.
Justice, 527 F.3d at 1087 (brackets and internal quotation marks
omitted).
V.
Goodyear initially argues that plaintiff has not demonstrated
that he was regarded as a disabled person within the definition of
the ADA. Goodyear asserts that plaintiff is unable to show that it
regarded him as having an impairment substantially limiting his
ability to perform a broad range of jobs, rather than a single
position.
Goodyear points out that, although plaintiff had been
hired, he had not been assigned a specific job.
Plaintiff
counters
this
contention
by
pointing
out
that
Goodyear terminated him before he was assigned to a particular
position. He suggests that this is evidence that Goodyear regarded
him as unable to do any job in the plant.
He argues that Goodyear
regarded him as disabled based upon the following:
(1) Nace and
Hollis were aware that he had received past workers’ compensation
permanency ratings regarding his knee and head; (2) Nace and Hollis
were both concerned with the permanency ratings and suggested that
17
the ratings meant that plaintiff was disabled; and (3) neither Nace
nor Hollis consulted the examining physician, Dr. Davies, regarding
Dr. Davis’ examination of plaintiff.
The court begins by noting that the focus here must be on the
statements made by Hollis, who made the decision to terminate
Williams.
The views of only the decision maker are considered in
determining whether the employer regarded the employee as disabled
for the purposes of the ADA.
Rakity, 302 F.3d at 1163.
Thus, the
court shall not consider any statements made by Nace or any other
Goodyear employees other than Hollis during the employment process.
Even if we were to consider the statements made by Nace, we are not
persuaded that they do not provide sufficient support for Williams’
claim.
In evaluating the evidence in the record, the court finds no
evidence to support plaintiff’s contention that Goodyear mistakenly
believed that he had an impairment which substantially limited the
major life activity of working.
statements
made
by
Williams disabled.
Hollis
Williams cannot point to any
that
indicated
that
he
considered
The only evidence offered by Williams to
support his claim is that (1) Goodyear received his workers’
compensation records which showed two instances where he had
received
permanent
disability
impairments;
and
(2)
Goodyear
terminated him shortly after receiving these records. The court is
not persuaded that this evidence is sufficient to demonstrate a
18
“regarded as” claim under the ADA.
“[T]he mere fact that an
employer is aware of an employee’s impairment is insufficient to
demonstrate either that the employer regarded the employee as
disabled or that that perception caused the adverse employment
action.”
Kelly v. Drexel Univ., 94 F.3d 102, 109 (3rd Cir. 1996);
see also Baffoe v. W.H. Stewart Co., 211 F.3d 1277, 2000 WL 484879
at * 6 (10th Cir. 2000) (“[I]t was not enough for Baffoe to present
evidence that his workers’ compensation records used the word
‘disabled’ or that they provided him with a permanent disability
rating. Nor was it sufficient for Baffoe to show that W.H. Stewart
employees referred to him as disabled or at risk for injury.”).
The record shows only that Goodyear examined Williams’ employment
application and medical questionnaire and determined that he had
made intentional omissions and misrepresentations.
During the
employment process, plaintiff plainly failed to answer completely
or truthfully on the following matters:
(1) all of his prior
employers including Suhler Trucking and others on his employment
application; (2) whether he had ever had a knee injury on the
medical questionnaire; (3) the year he suffered a head injury at
Ranger Trucking on his medical questionnaire; and (4) telling Nace
that his knee injury was not work-related.
Plaintiff has offered
explanations for some of these misrepresentations and omissions,
but the facts are uncontroverted on these matters.
In each
instance, Goodyear employees could properly determine that Williams
19
had failed to provide true and complete information.
that
Goodyear
had
obtained
concerning
The records
Williams’
workers’
compensation history showed that all of these matters had not been
fully and truthfully answered by Williams.
This evidence suggests
that Goodyear did not question Williams’ ability to work, only his
ability to tell the truth.
There is no evidence to show that Hollis ever considered
whether Williams was disabled. There is no evidence that Hollis or
any other employee at Goodyear terminated Williams’ employment
because of unsubstantiated speculation about the future risks from
a perceived disability.
See, e.g., Coleman v. Blue Cross Blue
Shield of Kan., 487 F.Supp.2d 1225, 1252 (D.Kan. 2007) (knowledge
of plaintiff’s impairments alone by the employer is insufficient to
avoid summary judgment, rather plaintiff must “go one step further
and show that [the employer] had misperceptions about plaintiff’s
impairments”), aff’d, 287 Fed.Appx. 631 (10th Cir. 2008).
The lack
of such evidence requires that summary judgment be entered for
Goodyear.
See Lusk v. Ryder Integrated Logistics, 238 F.3d 1237,
1242 (10th Cir. 2001) (employer entitled to summary judgment where
there is absence of evidence that employer misperceived extent of
plaintiff’s limitation).
As noted in the aforementioned Tenth
Circuit precedent, it is difficult for a plaintiff to demonstrate
evidence in support of a “regarded as” claim.
To prevail, a
plaintiff must show that the employer subjectively believed the
20
employee to be significantly restricted as to a class of jobs or
broad range of jobs in various classes.
See Heartway Corp., 466
F.3d at 1163. The Tenth Circuit has noted that “[t]here will often
not be evidence on this point,” id., and this is such a case.
This
case differs from those cases where the courts found that such
evidence is present.
See, e.g., Heartway Corp., 466 F.3d at 1165
(issue for jury in a “regarded as” ADA claim where employer’s
decision maker made statements that plaintiff’s Hepatitus C was the
reason for firing plaintiff); Garrison v. Baker Hughes Oilfield
Operations, Inc., 287 F.3d 955, 960 (10th Cir. 2002) (evidence was
sufficient for a jury to determine “as regarded” claim where job
offer was withdrawn after Human Resources Director learned that
plaintiff had received workers’ compensation in the past and told
plaintiff offer was revoked because of risk of “possible future
injuries,” and because “we don’t do that”); Tate v. Farmland
Industries, Inc., 268 F.3d at 989, 1000 (10th Cir. 2001) (finding
a genuine issue of material fact as to whether Farmland regarded
Tate as significantly restricted in his ability to perform his job
because “Farmland’s manager . . . stated . . . that he believed it
would have been unsafe for Tate to drive one of [the company]
trucks”).
Accordingly, the court finds that Goodyear is entitled
to summary judgment because Williams has failed to establish a
prima facie case of regarded as discrimination under the ADA.
Even if the court were to conclude that Williams had made a
21
prima facie case, we would still find that Goodyear is entitled to
summary judgment.
Because Williams lacks direct evidence of
disability discrimination, his ADA claim is properly analyzed under
the burden-shifting framework described in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04, (1973).
See Carter v. Pathfinder
Energy Services, Inc., ____ F.3d _____, 2011 WL 5222882 at * 13
(10th
Cir.
11/3/2011).
Under
this
scheme,
if
the
plaintiff
establishes a prima face case, then the burden shifts to the
employer “to articulate some legitimate, nondiscriminatory reason”
for its action.
Id. at * 12.
At the final stage, the plaintiff
must prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.
Id.
required
that
to
produce
evidence
To do so, the plaintiff is
the
discriminatory reason is “unworthy of belief.”
Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
with
“evidence
of
such
weaknesses,
defendant’s
non-
Randle v. City of
This burden can be met
implausibilities,
incon-
sistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence.”
Argo
v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1203 (10th
Cir. 2006) (quotation omitted).
they
appear
plaintiff.”
to
the
person
The court examines “the facts as
making
the
decision
to
terminate
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
22
1220, 1231 (10th Cir. 2000).
Goodyear has offered a legitimate, non-discriminatory reason
for terminating Williams, i.e., his intentional omissions and
misrepresentations
questionnaire.
on
his
employment
application
and
medical
Williams points to two matters that he contends
show pretext by Goodyear.
First, he argues that there is evidence
showing that Goodyear has never terminated anyone for providing
false information on his employment application.
Second, he notes
the temporal proximity of Goodyear’s receipt of the information in
the workers’ compensation records and the decision to terminate
him.
The court is not persuaded that either of these matters
present sufficient evidence of pretext by Goodyear.
Williams has
not presented adequate evidence to support his contention that
Goodyear
had
never
terminated
information on the application.
anyone
for
providing
false
Rather, Williams points only to
the deposition testimony of Hollis who did indicate that he had
never terminated anyone for this reason.
Williams, however, fails
to note that Hollis had been in his job for only about six months
prior to the Williams’ termination.
Such evidence is simply
inadequate to demonstrate pretext. The record fails to contain any
additional evidence on how often Goodyear had terminated employees
for
lying
on
questionnaires.
their
employment
Goodyear
had
23
applications
certainly
made
or
clear
medical
in
its
application
that
false
answers
would
lead
to
termination
of
employment.
Finally, the court finds no support for Williams’ contention
concerning temporal proximity.
The timing of the termination
actually appears to support Goodyear’s position since Williams was
fired shortly after Goodyear’s investigation into the statements on
his application and medical questionnaire. Nevertheless, the Tenth
Circuit has consistently held that “temporal proximity alone is not
sufficient
employer’s
to
defeat
proffered
[discrimination].”
summary
judgment
reason
is
by
showing
actually
that
pretext
the
for
Pinkerton v. Colo. Dep't of Transp., 563 F.3d
1052, 1066 (10th Cir. 2009) (citation omitted); see also Medina v.
Income Support Div., New Mexico, 413 F.3d 1131, 1138 (10th Cir.
2005) (“No reasonable jury could conclude that a five-week span of
time . . . without more, meets this standard.”).
Thus, the
evidence does not reasonably support a conclusion that Goodyear’s
proffered reason for terminating Williams was pretextual and,
therefore, Goodyear is entitled to summary judgment on Williams’
ADA claim.
VI.
Finally, the court shall consider Williams’ supplemental state
law claim against the defendant.
With the dismissal of Williams’
ADA claim against Goodyear, the court shall decline to exercise
supplemental
jurisdiction
over
24
Williams’
state
retaliatory
discharge claim.
See 28 U.S.C. § 1367(c); Smith v. City of Enid,
149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have
been dismissed, the court may, and usually should, decline to
exercise jurisdiction over any remaining state claims.”).
IT IS THEREFORE ORDERED that defendant’s motion for summary
judgment (Doc. # 69) be hereby granted.
The court shall grant
summary judgment to the defendant and against the plaintiff on
plaintiff’s claim under the Americans with Disabilities Act.
The
court shall decline to exercise supplemental jurisdiction over
plaintiff’s state law claim.
IT IS SO ORDERED.
Dated this 7th day of December, 2011 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
25
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