Fink v. St. Bernard Parish Government
Filing
52
ORDER AND REASONS granting 41 Motion for Partial Summary Judgment. FURTHER ORDERED that Ryan Fink's discrimination claim against the St. Bernard Parish Government, brought pursuant to the Americans with Disabilities Act, is DISMISSED WITH PREJUDICE. As discussed, his retaliation claim remains. Signed by Judge Lance M Africk on 3/20/19. (sbs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RYAN FINK
CIVIL ACTION
VERSUS
No. 18-5447
ST. BERNARD PARISH
GOVERNMENT
SECTION I
ORDER & REASONS
Before the Court is a partial motion 1 for summary judgment filed by the
defendant, the St. Bernard Parish Government (“St. Bernard Parish”). St. Bernard
Parish seeks dismissal of plaintiff Ryan Fink’s (“Fink”) claims for violations of the
Americans with Disabilities Act (the “ADA”) and his Fourteenth Amendment right to
procedural due process. For the following reasons, the motion is granted with respect
to Fink’s ADA discrimination claim. 2
I.
Fink worked as a St. Bernard Parish civil service employee from April 2008
until April 2017, when he was terminated. 3 According to Fink, in 2015 he was
diagnosed with “pain, decreased muscular strength and range of motion in both arms”
as a result of “a congenital narrowing of the spinal canal at the C5-C7 levels.” 4 In his
R. Doc. No. 41.
Fink filed a written opposition to the motion, but he did not address the dismissal
of his Fourteenth Amendment claim, which was brought under 42 U.S.C. § 1983. See
generally R. Doc. No. 49. Consequently, on March 19, 2019, the Court dismissed
Fink’s § 1983 claim against St. Bernard Parish without opposition and with prejudice.
R. Doc. No. 51, at 2.
3 R. Doc. No. 41-23, at 1, 3; R. Doc. No. 49-14, at 1, 7.
4 R. Doc. No. 1, at 2.
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opposition to the present motion, Fink also characterizes his diagnosis as
degenerative disc disease. 5 After a surgery in May 2015 related to Fink’s diagnosis,
his treating physician, Dr. John Steck (“Dr. Steck”), eventually released him to return
to work, restricting Fink from pulling, pushing, lifting, or carrying more than ten
pounds. 6 Fink contends that he was adequately accommodated at work until May
2016 because he had a qualified assistant who was available to lift and carry heavy
equipment. 7 In May 2016, however, the assistant was laid off. 8 In January 2017,
another assistant was hired for the department. 9 Fink alleges that the newly hired
assistant was “unqualified.” 10
Fink originally asserted a Fourteenth Amendment claim under 42 U.S.C.
§ 1983, a claim for overtime compensation under the Fair Labor Standards Act, 29
U.S.C. § 201, et seq. (the “FLSA”), and discrimination and retaliation claims under
the ADA, 42 U.S.C. § 12101, et seq. 11 Because St. Bernard Parish’s motion for partial
summary judgment does not address Fink’s ADA retaliation claim or his FLSA claim,
this order pertains only to Fink’s ADA discrimination claim.
R. Doc. No. 49, at 2.
R. Doc. No. 1, at 2; R. Doc. No. 49, at 3; R. Doc. No. 41-1, at 20.
7 R. Doc. No. 1, at 2.
8 R. Doc. No. 1, at 2; R. Doc. No. 41-1, at 17 n.5.
9 R. Doc. No. 1, at 2; R. Doc. No. 41-1, at 18.
10 R. Doc. No. 41-1, at 18.
11 As stated herein, supra note 2, since the present motion was filed, the Court
dismissed Fink’s § 1983 claim.
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II.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the Court determines
that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need
not produce evidence negating the existence of a material fact; it need only point out
the absence of evidence supporting the other party’s case. Id.; see also Fontenot v.
Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden, the nonmoving
party must come forward with specific facts showing that there is a genuine dispute
of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The showing of a genuine issue is not satisfied by creating “‘some
metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by
‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted).
Instead, a genuine issue of material fact exists when the “evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Although the substance or content of the
evidence submitted to support or dispute a fact on summary judgment must be
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admissible . . . , the material may be presented in a form that would not, in itself, be
admissible at trial.” Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th
Cir. 2017) (citations omitted). The party responding to the motion for summary
judgment may not rest upon the pleadings but must identify specific facts that
establish a genuine issue. Anderson, 477 U.S. at 248. The nonmoving party’s
evidence, however, “is to be believed, and all justifiable inferences are to be drawn in
[the nonmoving party’s] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541,
552 (1999).
III.
Fink asserts that St. Bernard Parish violated the ADA by failing and refusing
to accommodate his disability and by retaliating against him for asserting his rights
under the ADA. 12 The present motion only challenges Fink’s discrimination claim.
The ADA prohibits employers from discriminating “against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). “Discrimination includes
failure to make ‘reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability . . . unless such
covered entity can demonstrate that the accommodation would impose an undue
hardship.’” Feist v. Louisiana, Dep’t of Justice, Office of the Attorney Gen., 730 F.3d
450, 452 (5th Cir. 2013) (quoting § 12112(b)(5)). To succeed on an ADA claim for a
failure to accommodate, a plaintiff must prove (1) that he is a qualified individual
with a disability, (2) that the disability and its corresponding limitations were known
12
R. Doc. No. 1, at 6.
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to his employer, and (3) that his employer nevertheless failed to make “reasonable
accommodations” for the known limitations. Id.
“As a threshold requirement in an ADA claim, the plaintiff must, of course,
establish that he has a disability.” Waldrip v. General Elec. Co., 325 F.3d 652, 654
(5th Cir. 2003). St. Bernard Parish argues that Fink cannot demonstrate that he was
a qualified individual with a disability during the relevant timeframe because there
is no evidence he had a disability. 13 The relevant timeframe is the time during which
Fink alleges that he was not properly accommodated—from May 2016 until his
termination in April 2017. 14
The ADA defines a disability as “a physical or mental impairment that
substantially limits one or more major life activities of such individual.”
§ 12102(1)(A). “Major life activities include ‘caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working.’”
Kemp v. Holder, 610 F.3d 231, 235 (5th Cir. 2010). To determine whether Fink met
the ADA definition of disabled, the Court applies a three-part test. Waldrip, 325 F.3d
at 654. “[The Court] must determine first whether [Fink] ha[d] an ‘impairment,’ next
whether the activity on which he relies is a ‘major life activity,’ and, if so, whether his
impairment ‘substantially limit[ed]’ that major life activity.” Id. “[T]hese terms need
13
14
R. Doc. No. 41-1, at 15–16.
See R. Doc. No. 1, at 2–3.
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to be interpreted strictly to create a demanding standard for qualifying as disabled.”
Id. (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002)).
After his surgery in May 2015, Dr. Steck approved Fink’s return to work.
However, Fink was restricted from pulling, pushing, lifting, or carrying more than
ten pounds. 15 The only other evidence of a work-related restriction is a memorandum
signed by Dr. Steck from March 2016. In the memorandum, Dr. Steck noted that Fink
was “doing really well.” 16 Dr. Steck wrote, “The only thing we are going to limit him
to [is] working no more than 40 hours per week. He is going to start working out.” 17
Fink’s alleged impairment is his degenerative disc disease. 18 However, even if
degenerative disc disease qualifies as a physical impairment, Fink cannot point to
any evidence in the record to establish that his disease substantially limited a major
life activity. In fact, he does not specify a major life activity. The only evidence he
cites are the restrictions imposed by Dr. Steck and deposition testimony from Dr.
Steck, in which he read from a form that Fink completed in November 2016 stating
that his pain affected his “[e]njoyment of life, mood, ability to work, sexual activity,
[and] ability to perform household duties.” 19 Even assuming that the foregoing
activities are major life activities, and accepting Fink’s self-reporting as factual, the
evidence does not suggest that his disease was “substantially limit[ing].” Waldrip,
325 F.3d at 652; see also Dupre v. Charter Behavioral Health Sys. of Lafayette Inc.,
R. Doc. No. 41-19.
R. Doc. No. 41-22, at 1.
17 Id.
18 See R. Doc. No. 49, at 11.
19 R. Doc. No. 49-9, at 27.
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242 F.3d 610, 614 (5th Cir. 2001) (noting that, to prove a person “is substantially
limited in the major life activity of working,” a plaintiff “is required to demonstrate
that [his] back injury precluded [him] from a class of jobs or a broad range of jobs”).
Moreover, neither a ten-pound limiting restriction nor a forty-hour work week
restriction demonstrate the requisite substantial limitation of a major life activity.
See, e.g., Tyler v. La-Z-Boy Corp., 506 F. App’x 265, 268 (5th Cir. 2013) (finding that
“[the plaintiff’s] lifting restrictions of twenty-four pounds from floor to waist and
twenty pounds from waist to overhead [did] not qualify as a disability under the
ADA”); Miller v. Southwestern Bell Tel. Co., No. 01-21318, 2002 WL 31415083, at *5
(5th Cir. Oct. 7, 2002) (“When evaluating the traditional forty-hour work week, courts
have determined that the inability to work overtime is not a substantial limitation
on the ability to work under the ADA.”); Sherrod v. American Airlines, Inc., 132 F.3d
1112, 1120 (5th Cir. 1998) (holding that a restriction on heavy lifting was not
sufficient to find a substantial limitation); Ray v. Glidden Co., 85 F.3d 227, 229 (5th
Cir. 1996) (noting that, despite a lifting restriction, the plaintiff “[could] lift and reach
as long as he avoid[ed] heavy lifting,” and holding that such a restriction did not make
him “substantially limited in a major life activity”). 20 Consequently, Fink has failed
The restriction letter from Dr. Steck indicates that, as of July 2015, Fink was
approved to return to work with only the lifting restriction. The letter does not state
how long the lifting restriction was to last but, during his deposition, Dr. Steck
testified that, in general, following a cervical fusion surgery like the one he performed
on Fink in May 2015, a lifting restriction is put in place for, “at the most,” six weeks.
R. Doc. No. 41-21, at 9. Counsel for St. Bernard Parish later asked “[S]ix weeks after
the date of [the restriction letter] would be sometime in mid August of 2015, when
typically, in your opinion, these restrictions would be lifted; is that correct?” Id. at 10.
Dr. Steck answered, “That’s correct.” Id. Thus, according to Fink’s own treating
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to identify a genuine issue of material fact related to whether he was disabled as
contemplated by the ADA.
Even if a plaintiff is not disabled as defined by the ADA, he may nonetheless
claim the ADA’s protection if he is “regarded as having such an impairment.”
Waldrip, 325 F.3d at 657; 42 U.S.C. § 12102(2)(C).
A plaintiff has a “regarded as” disability if he (1) has an impairment that
is not substantially limiting but which the employer perceives as
substantially limiting, (2) has an impairment that is substantially
limiting only because of the attitudes of others, or (3) has no impairment
but is perceived by the employer as having a substantially limiting
impairment.
Waldrip, 325 F.3d at 657. It is undisputed that St. Bernard Parish knew that Fink
had some kind of impairment because Dr. Steck’s June 2015 letter approving Fink to
return to work with the lifting restriction was in Fink’s medical file. 21 However, “an
physician, the lifting restriction implemented in June 2015 would not have been in
effect in May 2016—a year after the surgery, and when Fink alleges that St. Bernard
Parish began failing to properly accommodate him.
The other disputed restriction—which, as of March 2016, limited Fink to forty hours
of work per week—was apparently only ordered by Dr. Steck because Fink requested
it: when asked during his deposition about the rationale behind restricting Fink’s
work week, Dr. Steck answered, “He must have asked me to limit that. . . . [That is]
not really . . . something that I would do independently without the patient asking
me to add that on.” R. Doc. No. 41-21, at 5. Moreover, there is no evidence in the
record to suggest that St. Bernard Parish was aware of the hours restriction. See
Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir. 1996) (noting that the
plaintiff in an ADA case must adduce summary judgment evidence demonstrating
that his employer knew that he was limited as a result of any alleged disability). Fink
argues that Dr. Steck stated that language in the restriction letter—namely the use
of “[t]o whom it may concern”—“usually meant that the patient had carried it to his
employer or that his office faxed it,” R. Doc. No. 49, at 12 n.26, but the Court has not
been provided with any testimony stating as much. Furthermore, such testimony
would be purely speculative.
21 See R. Doc. No. 41-20, at 1 (e-mail from Ben to Fink).
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employer may regard an employee as impaired or restricted from one position or a
narrow range of jobs without regarding him as ‘disabled.’” E.E.O.C. v. E.I. Du Pont
de Nemours & Co., 480 F.3d 724, 729 (5th Cir. 2007).
As evidence that St. Bernard Parish regarded him as disabled, Fink relies on
his April 4, 2017 confrontation with the parish president, McInnis. 22 Confusingly, the
law Fink cites to accompany his analysis of the confrontation pertains to ADA
retaliation claims. Without referencing any particular piece of evidence, Fink also
states that “his requests for accommodation, his complaints about needing help with
work hours and lifting weight gave his co-workers the idea that he was disabled.” 23
However, the record expressly suggests otherwise.
In response to a May 2016 e-mail in which Fink complained to McInnis, Alonzo,
and Ben about his assistant being fired, Ben stated:
[A]t no time was myself, or the new [ ] [a]dministration [ ] made aware
of any physical limitations that you may have. I was not employed [sic],
nor was the HR Dept. made aware of any accident, or injuries, you may
have sustained previous to this administration.
After reviewing your medical file, there’s no formal request for any ADA
accommodations. I did find your letter documenting your physical lifting
restrictions from Dr. Stech’s [sic] office, dated June 29, 2015.
If you have a request for reasonable ADA accommodations, please
inform the administration of your need for an accommodation, and your
request will be reviewed. 24
R. Doc. No. 49, at 13.
Id. at 14.
24 R. Doc. No. 41-20, at 2.
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Notably, there is no evidence that Fink ever followed Ben’s instructions. Fink has not
cited to any evidence in the record suggesting that his superiors, and thus St. Bernard
Parish, regarded him as disabled, and this theory is unavailing. 25
IV.
Accordingly,
IT IS ORDERED that the St. Bernard Parish Government’s motion for partial
summary judgment is GRANTED, as stated herein.
IT IS FURTHER ORDERED that Ryan Fink’s discrimination claim against
the St. Bernard Parish Government, brought pursuant to the Americans with
Disabilities Act, is DISMISSED WITH PREJUDICE. As discussed, his retaliation
claim remains.
New Orleans, Louisiana, March 20, 2019.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
Fink argues that St. Bernard Parish had an obligation to engage in an interactive
dialogue with him regarding how to address his disability-related needs. See R. Doc.
No. 49, at 14 (citing E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621
(5th Cir. 2009)). However, because Fink has failed to demonstrate that he was either
disabled or regarded as disabled by his employer, the Court need not consider the
remaining merits of Fink’s failure-to-accommodate claim.
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