SHIRLEY JEAN DEISINGER,
Plaintiff,
v.
PENNINGTON COUNTY, SD
Don Holloway, Individually and as Sheriff of Pennington Co.,
Defendants.
[1999 DSD 10]
United States District Court
District of South Dakota - Western Division
Civ. 96-5101
MEMORANDUM OPINION AND ORDER
Donald A. Porter, Costello, Porter, Hill, Heisterkamp & Bushnell,
Rapid City, SD
Attorney for Plaintiff
James S. Nelson, Donald Knudsen
Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, SD
Attorney for Defendants
Filed March 22, 1999
Richard H. Battey, Senior District Judge
I. PROCEDURAL HISTORY
[¶1] On November 25, 1996, Shirley Jean Deisinger ("Deisinger") filed a complaint against Pennington County Sheriff Donald Holloway ("Holloway") and Pennington County alleging violations under the Americans with Disabilities Act, 42 USC § 12111 et seq. ("ADA" or "the Act"), and Title VII of the Civil Rights Act of 1964, 42 USC § 2000e et seq. ("Title VII"). Deisinger also asserted a state law claim of intentional infliction of emotional distress ("IIED claim"). On February 23, 1998, defendants filed a motion for summary judgment. This Court dismissed all claims against Sheriff Holloway in his individual and official capacity and dismissed Deisinger's Title VII claim in its entirety (Docket #40). As a result, only Deisinger's ADA and IIED claim remain. Pennington County is now the sole remaining defendant.
[¶2] Because Deisinger had requested time for additional discovery, this Court declined to address the substantive merits of defendants' summary judgment in regard to two major issues:
(1) whether Deisinger had met her burden to establish a prima facie case under the ADA; and
(2) whether Deisinger had provided Pennington County with timely and proper notice of her IIED claim pursuant to SDCL 3-21-2 and SDCL 3-21-3.(fn1)
[¶3] On December 11, 1998, defendant filed a renewed motion for summary judgment (Docket #53). Because this Court concluded that defendant failed to file the renewed motion for summary judgment within the established motions deadline, defendant's motion for summary judgment was denied without any examination being conducted on the merits of the motion (Docket #56). However, during the Court's preparation for trial it determined that the substantive issues raised by Pennington County's renewed motion for summary judgment should be addressed and the Court ordered further briefing in this regard.
[¶4] On January 29, 1999, Pennington County submitted a renewed motion for summary judgment (Docket #72). Plaintiff has responded, and the County has replied. This Court has jurisdiction to proceed pursuant to 28 USC §§ 1331, 1343, and 1367.
II. FACTS
[¶5] Deisinger was employed with the Pennington County Sheriff's Office ("the Sheriff's Office") from 1990 until July 1995. In early January 1995, Deisinger underwent surgery on her right hand and wrist in order to alleviate problems associated with carpal tunnel syndrome. Defendant's Statement of Material Facts ("DSMF") at ¶4; Plaintiff's Statement of Material Facts ("PSMF") at ¶1. A short time after surgery, Deisinger was allowed to return to work under a three-week typing restriction. See Exhibit A, DSMF (Doctor's Orders of January 17, 1995). Within a month of surgery, Deisinger was released from all restrictions. Id.
[¶6] In an Employee Self-Appraisal dated February 16, 1995, Deisinger expressed the following concern: "I would like to have at least 20 hrs of consistent help each week. I think this job could keep two full time employees busy." See Exhibit A, Defendant's Reply to Plaintiff's Opposition to Defendant's Renewed Motion for Summary Judgment ("Defendant's Reply") (Employee Self-Appraisal). Also on February 16, 1995, Deisinger submitted a 22-paragraph memo to her supervisor, Charlene Rearick ("Rearick") outlining a number of concerns she had in regard to her workload. See Exhibit C, Defendant's Reply (Deisinger memo). In her memo, Deisinger requested help from her supervisor, stating in part:
I have fallen behind continuously since Shelly and the workstudy have not been here. I am concerned about the following areas being neglected because time does not allow me to address these areas as well as they should be . . . .
A year ago I had Shelly for about 40 hours a week and a workstudy for 20 hours a week. Since September I had only a workstudy up until December and nothing after that except for Frannie doing Executions when time allows. I have also had occasional help from Jamie and you [Rearick] when your time allowed.
I am struggling to do 70 hours of work in the 40 hours allowed me and am concerned with the continuous stress level affecting my work.
Id. At no time in the memo did Deisinger indicate her inability to keep up with the workload was due to a physical impairment.
[¶7] Following receipt of Deisinger's memo, Rearick met with Deisinger and discussed Deisinger's concerns. On February 21, 1995, Rearick submitted a memo to Deisinger's file proposing a number of possible ways to alleviate some of Deisinger's workload. In March 1995, Rearick advised Deisinger that she needed to avoid conflicts with co-workers and stop interfering with other people and "let them do their job." See Exhibit D, Defendant's Reply (Supervisor's Comments to File). On March 19, 1995, Deisinger sent a memo to Rearick informing her that she was going to file "harassment" charges against Rearick.(fn2)
[¶8] Deisinger received a letter of "Corrective Action" on April 20, 1995, from Rearick regarding continued conflicts Deisinger was having with other employees in the Sheriff's Office. See Exhibit G, Defendant's Reply (Letter of Corrective Action). The corrective action also instructed that if Deisinger's behavior did not improve she would be subject to further disciplinary action. Finally, on June 2, 1995, Deisinger approached Rearick with the request that she be allowed to take a vacation day on July 6, 1995. DSMF at ¶10; PSMF at ¶1. Deisinger did not receive permission to take the day off at that time.
[¶9] On June 29, however, Rearick informed Deisinger that she would not be permitted to take a vacation day on July 6, 1995. DSMF at ¶10; PSMF at ¶1. Deisinger responded with "okay." Id. Deisinger later approached Sheriff Holloway with the same request, again asking permission to take July 6 as a vacation day. Sheriff Holloway refused to countermand Rearick's previous order, instructing Deisinger that she would be expected to work that day. DSMF at ¶11; PSMF at ¶1. Despite this direct order, Deisinger left a phone message with the Sheriff's Office on the morning of July 6, explaining that she would not be in to work.
[¶10] Because it appeared to Sheriff Holloway that Deisinger had taken an unauthorized day off from work, Deisinger was notified to attend a Pre-Termination hearing on the matter. Following the hearing, Deisinger's employment with the Sheriff's Office was terminated. DSMF at ¶15; PSMF at ¶1.
[¶11] Deisinger filed a charge of discrimination with the South Dakota Division of Human Rights on February 8, 1996. DSMF at ¶17; PSMF at ¶4. In her charge, Deisinger asserted (in part) that she was disabled under the Americans with Disabilities Act and that her disability (carpal tunnel syndrome) substantially limited one or more of her major life activities. Deisinger also alleged that the Sheriff's Office was required to provide reasonable accommodations to her and that in failing to do so the Sheriff's Office violated the Act. In addition, Deisinger asserted she lost her job with the Sheriff's Office as a direct result of her alleged disability.
III. SUMMARY JUDGMENT STANDARD
[¶12] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
[¶13] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). The Supreme Court has instructed that "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," and "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 106 S. Ct. at 1356.
[¶14] The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468, 112 S. Ct. 2072, 2083 (1992) where the Court said, "Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision." The Court expounded on this notion by reiterating its conclusion in Anderson that, "[s]ummary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Eastman Kodak, 504 U.S. at 468 n.14, 112 S. Ct. at 2083 n.14 (quoting Anderson, 477 U.S. at 248, 106 S. Ct. at 2510). To survive summary judgment there must be evidence that "reasonably tends to prove" plaintiff's theory; defendant meets the burden under Fed. R. Civ. P. 56(c) when it is conclusively shown that the facts upon which the nonmoving party relied to support the allegations were not susceptible of the interpretation which was sought to give them; only reasonable inferences can be drawn from the evidence in favor of the nonmoving party. Id. (citations omitted).
[¶15] Finally, should there remain any doubt as to whether the courts continue to harbor any antagonistic feeling toward resolution of summary judgment motions, the case of City of Mt. Pleasant, Iowa v. Associated Electric Co-op., 838 F2d 268 (8th Cir. 1988) laid such thoughts to rest. It stated that, "a trilogy of recent Supreme Court opinions demonstrates that we should be somewhat more hospitable to summary judgments than in the past." Id. at 273. See also Midwest Radio Co. v. Forum Pub. Co., 942 F2d 1294, 1296 (8th Cir. 1991). The motion for summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those cases that really do raise genuine issues of material fact." Id.
[¶16] Based on the foregoing, the trilogy of Celotex, Anderson, and Matsushita provides the Court with a methodology in analyzing defendant's motion for summary judgment. See generally 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 5.04 (2d ed. 1991) (discussing the standards for granting summary judgment that have emerged from Matsushita, Celotex, and Anderson).(fn3) Under this trilogy, it is incumbent upon the nonmoving party, based upon the showing set forth by the moving party, to establish significant probative evidence to prevent summary judgment. See Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank, 934 F2d 976, 979 (8th Cir. 1991).
IV. DISCUSSION
[¶17] Liability under the ADA
[¶18] Deisinger asserts that Pennington County Sheriff's Office refused to make accommodations for her carpal tunnel syndrome and in so failing, the Sheriff's Office violated the ADA.(fn4) It is well settled that a plaintiff bears the initial burden to establish a prima facie case under the ADA. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); see also Snow v. Ridgeview Medical Center, 128 F3d 1201, 1206 (8th Cir. 1997). Under the three-part framework established by McDonnell Douglass, a plaintiff must show that she: (1) was "disabled" within the meaning of the Act; (2) was qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) suffered an adverse employment action under some circumstances giving rise to an inference of unlawful discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Snow, 128 F3d at 1206.
[¶19] Once a plaintiff has made some showing as to her prima facie case, the burden shifts to the defendant to provide a legitimate and non-discriminatory reason for its actions. Id. If defendant successfully makes this showing, the burden shifts back to the plaintiff to demonstrate that the employer's articulated reason was but a mere pretext for an unlawfully discriminatory purpose. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S. Ct. 2742, 2747-48, 125 L. Ed. 2d 407 (1993).
[¶20] After a careful review of all the pleadings and evidence submitted in this case, this Court concludes that summary judgment should be granted to defendant Pennington County on plaintiff's ADA claim. Deisinger has failed to meet her burden of establishing a prima facie case under the ADA because she has not demonstrated how her carpal tunnel syndrome may be considered a "disability." Moreover, Pennington County has successfully shown that Deisinger's termination was predicated on a legitimate and non-discriminatory reason, that is, she was terminated for insubordination. In response, Deisinger has been unable to demonstrate, beyond mere conclusory allegations, that her termination was in fact pre-textual.
[¶21] A plaintiff may make a threshold showing of "disability" under the ADA by demonstrating either that (1) she has a disability as defined by the ADA; or (2) she suffers from a history of such a disability; or (3) she has been perceived by her employer as having such a disability. 42 USC § 12102(2)(A)-(C). In this case, Deisinger alleges that her carpal tunnel is a disability under the ADA. The term "disability" is defined to mean, among other things, "a physical . . . impairment that substantially limits one or more of the major life activities of such individual." 42 USC § 12102(2)(A). While carpal tunnel syndrome is certainly a physical impairment, this Court does not conclude that it has substantially limited one or more of Deisinger's major life activities.
[¶22] To be substantially limiting, Deisinger's carpal tunnel syndrome must render her "[s]ignificantly restricted as to the condition, manner or duration under which . . . [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 CFR § 1630.2(j)(1)(i)-(ii). While working is a major life activity under the regulations, to be considered substantially limited in the major life activity of working, Deisinger must show that her impairment has resulted in a significant restriction in her 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 CFR § 1630.2(j)(3)(i).
[¶23] Plaintiff has failed to show that her carpal tunnel syndrome has resulted in a significant restriction in her ability to perform either a class of jobs or a broad range of jobs. It is noteworthy that, although provided with the opportunity to perform additional discovery, Deisinger has not presented any additional evidence tending to show that she is disabled under the Act.
[¶24] In evaluating whether or not Deisinger has been substantially limited in a major life activity, the court has considered the following three factors in conjunction with plaintiff's training, skills, and abilities: (1) the nature and severity of the impairment; (2) its duration and anticipated duration; and (3) its long-term impact. See Snow, 128 F3d at 1207; Aucutt v. Six Flags Over Mid-America, Inc., 85 F. 3d 1311, 1319 (8th Cir. 1996).
[¶25] While it appears that Deisinger's carpal tunnel syndrome initially caused her to suffer some discomfort and difficulties, she was removed from all work restrictions within one month. See generally Gutridge v. Clure, 153 F3d 898 (8th Cir. 1998) (holding that carpal tunnel syndrome is not a disability where limited weight restrictions placed on plaintiff were not enough to establish a substantial limitation to a major life activity); Wooten v. Farmland Foods, 58 F3d 382 (8th Cir. 1995) (holding that bi-lateral carpal tunnel is not a disability under the ADA where plaintiff was allowed to return to work with only minor restrictions) (decided under "regarded as" prong); see also McKay v. Toyota Motor Manufacturing, USA, Inc., 110 F3d 369 (6th Cir. 1997) (holding that carpal tunnel syndrome is not a disability where plaintiff was only restricted from a narrow range of repetitive-motion positions). Because Deisinger cannot show that she suffered a substantial limitation to a major activity, the Court concludes that she has not presented sufficient evidence of disability under the Act so as to preclude summary judgment.
[¶26] Nonetheless, even if Deisinger could establish that she indeed suffered from a "disability" under the ADA, she has failed to point to sufficient facts demonstrating that Pennington County's reason for terminating her (insubordination) was pre-textual. See Snow, 128 F3d at 1206. While Deisinger underwent an operation to alleviate her carpal tunnel syndrome in January, she returned to work almost immediately and was removed from restrictions within a month. Deisinger was not terminated, however, until July 7, 1995 -- over four months after being released from all restrictions. At her pre-termination hearing, the sole matter of discussion hinged upon Deisinger's failure to appear for a required shift. Moreover, although Deisinger did have problems keeping up with her work load, every piece of evidence presented has shown that Deisinger never complained to her superiors that this was due to her carpal tunnel syndrome. Rather, Deisinger consistently complained that a reduction in staff had left her with more work than one individual could handle. It is undisputed that Deisinger made a conscious decision to not appear for work on July 6, 1995, and there has simply been no showing from which a reasonable jury could infer that Pennington County entertained a discriminatory reason for her termination.(fn5) Accordingly, the Court concludes that summary judgment should issue for defendant Pennington County on Deisinger's ADA claim.
[¶27] B. Liability for IIED
[¶28] Deisinger has also asserted the state law claim of intentional infliction of emotional distress. This claim is premised upon Deisinger's allegation that various members of the Sheriff's Office attempted to "build a record" against her to support her eventual termination. Because Deisinger failed to provide timely and proper notice of this claim pursuant to SDCL 3-21-2 and 3-21-3, Pennington County's motion for summary judgment should be granted on plaintiff's supplemental state law IIED claim as well.
[¶29] Under South Dakota law, before a plaintiff can sue a public entity such as Pennington County, written notice must be given to the county auditor and attorney general within 180 days of the injury. See SDCL 3-21-2; 3-21-3. While Deisinger admits that she failed to provided any written notice to either the county auditor or the attorney general, she insists that she substantially complied with South Dakota law. In support of her position, Deisinger cites the case of Myears v. Charles Mix County, 1997 SD 89, 566 NW2d 470. In Myears, the plaintiff was injured in an automobile accident on a county road. Although the plaintiff did not give written notice to the county auditor or the attorney general within 180 days, his attorney sent notice to the county engineer outlining all the essential elements of his claim including the name of the party injured, the place of injury, and the theory of liability. Following receipt of this letter, the county auditor, state's attorney, and county commissioner considered the matter and the county's insurer investigated the claim. Due to the detailed notice given to the county, the South Dakota Supreme Court concluded that the objective of the statute was met in spite of the plaintiff's failure to comply with the strict terms of the statute. Id.
[¶30] In this case, however, Pennington County received little to no notice at all regarding Deisinger's IIED claim beyond two memos written by Deisinger which only vaguely outlined her concerns that the County was building a "record against her." Deisinger has simply failed to point to any evidence in this case which alone or in combination could be considered to have put Pennington County on notice of her intent to pursue an IIED claim against it. Therefore, this Court concludes that Deisinger's actions did not rise to the threshold of "substantial compliance" contemplated in Myears.
[¶31] Given plaintiff's failure to present a prima facie case under the ADA, along with her inability to demonstrate substantial compliance within the notice provisions of South Dakota law, it is hereby
[¶32] ORDERED that Pennington County's renewed motion for summary judgment (Docket #72) is granted in its entirety. Judgment shall enter in favor of defendant and against plaintiff.
Footnotes
1. The Court stated:
(In regard to the prima facie ADA case)
In order to find in favor of defendant Pennington County on its motion for summary judgment, this Court must consider the merits of Deisinger's claims. Accordingly, this Court finds that additional discovery may be beneficial to Deisinger in establishing her alleged disability pursuant to the ADA and in meeting the prima facie elements required ... . Therefore, defendants' motion for summary judgment as to Pennington County is denied at this time and may be resubmitted following the expiration of the amended discovery deadline.
(In regard to timely notice)
Deisinger responds that she "substantially complied" with the South Dakota notice provision and that this is sufficient . . . . Deisinger has stated that additional discovery on the issue of notice would be beneficial. See Affidavit of Porter at ¶8. Accordingly, defendants' request to dismiss the state law claim of intentional infliction of emotional distress is denied at this time. If they wish, defendants may resubmit this argument following the termination of the amended discovery deadlines.
2. The memo stated: "I am filing harassment charges against you in the way you are handling the letter I did on February 16, 1995 concerning asking for help in getting my job done."
3. The trilogy of Celotex, Anderson, and Matsushita has redefined the standard for summary judgment previously annunciated in Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970) and Poller v. Columbia Broadcasting, Inc., 368 U.S. 464, 467, 82 S. Ct. 486, 7 L. Ed. 2d 458, 488 (1962). Poller and Adickes run counter to the teachings of Celotex, Anderson, and Matsushita which take issue with the concept that summary judgment is to be used sparingly. See generally William W. Schwarzer, Alan Hirsch, and David J. Barrans, The Analysis and Decision of Summary Judgment Motions: A Monograph on Rule 56 of the Federal Rules of Civil Procedure, Federal Judicial Center, at 4 (1991).
4. The ADA provides: "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual." 42 USC § 12112(a).
5. The Court notes that in her response to defendant's supplemental motion for summary judgment, Deisinger asserts (apparently for the first time) that defendant retaliated against her for filing grievances concerning her inability to keep up with her work load. This argument is unavailing. A review of the memoranda and correspondences in this case reveals that Deisinger never complained that she could not keep up with her workload because of a physical impairment. As this Court has already pointed out, Deisinger's complaints centered around her belief that she was being asked to do more work than could be done by one person in a 40-hour work week. To establish a prima facie case of retaliation, Deisinger must make at least some showing that she engaged in a statutorily protected activity for which she suffered an adverse employment action. Plaintiff has failed to make such a showing.