McDonald v. Webasto Roof Systems, Inc., No. 5:2011cv00433 - Document 32 (E.D. Ky. 2013)
Court Description: MEMORANDUM OPINION & ORDER: For all reasons set forth in this memorandum, opinion and order, Pla's claims fail as a matter of law, and summary judgment in favor of Dft is appropriate. Accordingly, Webasto's 23 MOTION for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 10/18/2013. (KLB) cc: COR
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON COLIN L. MCDONALD, ) ) ) ) ) ) ) ) ) Plaintiff, v. WEBASTO ROOF SYSTEMS, INC., Defendant. Civil Case No. 11-cv-433-JMH MEMORANDUM OPINION AND ORDER *** This matter is before the Court on the Motion for Summary Judgment [DE 23] of Webasto Roof Systems, Inc. ( Webasto ). Plaintiff McDonald has filed a Response, stating his objections [DE 24], and Defendant has filed a Reply [DE 25] in further support of its Motion. This motion is now ripe for resolution. In his Complaint, Plaintiff avers that Defendant Webasto (1) violated the Americans with Disabilities Act ( ADA ) when it refused to disability hire and him because unlawfully he was denied regarded him as employment having on a those grounds; (2) breached an agreement between the parties when it failed to provide him with employment as agreed; and (3) should be of liable to him for damages under a theory promissory estoppel because he left his former employment in reliance on Webasto s promise of employment. Webasto argues that Plaintiff s ADA claim fails because he was not a qualified 1 individual susceptible to the protections of the act and that there was no breach of contract because McDonald never accepted anything more than an at will offer of employment. argues Webasto, because at McDonald s will promissory employees theory in Kentucky. may not estoppel seek Further, claim relief fails under that For the reasons stated below, the Court concludes that McDonald s claims fail as a matter of law, and they shall be dismissed. I. Standard of Review The Court may grant a motion for summary judgment where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party must bear the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). That burden satisfied, the non-moving party must then produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 48 (1986). The Court must review the evidence in the light most favorable to the non-moving party; however, the non-moving party is required to do more than simply show there is some metaphysical doubt as 2 to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, showing the that non-moving a genuine party must issue factual present specific exists by facts citing to particular parts of materials in the record or by showing that the materials genuine cited do dispute[.] not Fed. establish R. Civ. the P. absence ... 56(c)(1). of The a mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]. II. Anderson, 477 U.S. at 252. Background McDonald applied for a job with Webasto on March 4, 2011. Webasto interviewed McDonald on March 7, 2011, and, through its agent, Liz Beatty, technician.1 offered McDonald him a contends position that at as least a maintenance initially the position was offered without condition and that he was asked if he could employer notice. start at that While congratulating orientation immediately. and time, most them the advised Washington new on He Penn, employees their necessity 1 required received position, of Webasto that two written notifying completing a his weeks notice, them of pre-employment The Court recounts the evidence in the light most favorable to McDonald as the non-moving party in this instance. See Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 3 physical, and Plaintiff never requiring a received signature such a acknowledging document, and receipt, Webasto never obtained an acknowledgement from McDonald. McDonald gave a two week notice to Washington Penn on March 7, 2011. One week later, Liz Beatty called and asked McDonald to submit to a drug test, a criminal background check, and a physical before commencing work. McDonald agreed to do so. On March 10, 2011, McDonald appeared at Red Point Medical for a medical examination. for Red Point, McDonald. Heather Pile, who administered the exam performed a complete physical examination of While there is some disagreement about the detail with which it was presented, McDonald reported a preexisting degenerative disc condition, which Piles took into consideration when she performed furnished Webasto a and the exam description found no of and the evaluation. necessary limitations for She job had been functions McDonald. She by gave deference to a statement provided by Dr. Lyon, an orthopedist, who placed concluded no that restrictions McDonald on could McDonald. perform Ultimately, the she essential job functions and that, with respect to Hx lumbar bulging dics [sic] PCP Dr. Lyon states no restrictions needed. 21, 2011, Beatty called Pile. On March Pile made a note concerning the call, indicating that We [Red Point Medical] have no specific reason to states [sic] Mr. McDonald cannot do the job. 4 If there are concerns, a Fit for Duty with Dr. Lester can be required. . . . Beatty then referred McDonald to the Kentucky Back Center, where he was examined on March 23, underwent functional capacity tests. capacity and physical elements 2011. There, McDonald He passed the functional of the tests, meeting the physical requirements of the position description provided by Webasto including the handwritten requirements added to the position description by Beatty before it was provided to the Kentucky Back Center. McDonald was asked by Kentucky Back Center to provide certain medical records, which McDonald did. Among those records were contradictory opinions as to whether McDonald was a surgical candidate degenerative disc condition. for correction of his Dr. William Lester of the Kentucky Back Center, who did not examine McDonald, meet McDonald, or inquire of physical McDonald condition, about his ultimately work experiences prepared the or present Kentucky Back Center s report to Webasto based on his review of the records and his consultation with the advanced registered nurse practitioner who did the examination. He concluded in this report that that [he] would not recommend within the job description provided. [McDonald] work [DE 23-2, Page ID # 117.] Lester later testified that, while McDonald could lift what we required him to lift at that time he was examined, Lester did 5 not feel, based upon the records that I reviewed, that he could perform those jobs on a sustained level. [DE 24-8 at 9, Page ID # 227] Lester, during his deposition, testified as though he was unaware that McDonald had been released from work or lifting restrictions and testified that he had not received any records indicating that at least one physician had opined that McDonald was not a surgical candidate to correct the condition. [DE 24-8 at 5-6, Page ID ## 223 24.] In fact, work restrictions were imposed at Washington Penn as a result there. of McDonald s back condition during his tenure However, while he worked on a light duty restriction for a time, those restrictions were lifted once McDonald passed a four to five hour functional capacity test. evidence that McDonald performed duties Further, there is that were far more strenuous than those included in the Webasto job description during McDonald his employment commenced at Washington employment at Penn. Toyota Additionally, Engineering and Maintenance Manufacturing on August 1, 2011, where his duties require him to perform strenuous activities equal to those he performed at Washington Penn and equal to or greater than those included in the Webasto job description. III. Analysis A. Plaintiff s Claim Under the Americans With Disabilities Act 6 The Americans with Disabilities Act ( ADA ), as amended, prohibits discrimination by certain employers against a qualified individual on the basis of disability in regard to. . . the hiring. . . or discharge of employees. . .and other terms, conditions, 12112(a). and privileges of employment. 42 U.S.C. § A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires and which also means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, perform the essential functions of such position. can Id. at § 12111(8); 29 C.F.R. § 1630.2(m). Disability is (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having § 12102(1). regarded An as establishes such individual having that an he such or she impairment. meets the . been . 42 requirement impairment has . if the subjected to U.S.C. of being individual an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether 7 or not the impairment limits or is perceived to limit a major life activity. Id. at § 12102(3)(A). Employers subject to the provisions of the ADA may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. 29 C.F.R. § 1630.14(a). Further, such employers may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability. Id. at § 1630.14(b). 29 CFR § 1630.14(b)(3) contains specific limitations on the scope of such medical examinations: Medical examinations conducted in accordance with this section do not have to be jobrelated and consistent with business necessity. However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation as required in this part. 8 In the absence of direct evidence of disability discrimination, as in the case before the Court, [a] plaintiff may prove employment discrimination under the ADA . . . on circumstantial evidence, using the prima facie case and burden shifting method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973), and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248. . . (1981). Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (citing Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir. 1995); DeLuca v. Winer Indus., Inc., 53 F.3d 793 (7th Cir. 1995); White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995)). Thus, Plaintiff . . . must first establish a prima facie case of discrimination that will create a presumption of unlawful discrimination. Once the plaintiff has made a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by producing evidence that plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. Once the employer has come forward with a nondiscriminatory reason for firing [or not hiring] the plaintiff, the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer's explanation. Id. at n. 5 (citing Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir. 1994). In the matter before it, the Court concludes that Plaintiff could make a prima facie case 9 of unlawful discrimination. McDonald can arguably establish that (1) he is a disabled person within the meaning of the ADA because Webasto perceived him as having an impairment due to degenerative disc disease and (2) that he is actually qualified for the position of maintenance technician because, with or without reasonable accommodation, he is able to perform the essential functions of the job. What is most troubling is the question of whether Webasto did not hire him because of that perceived disability because, in fact, the evidence shows that Webasto actually believed that he was not qualified for the position. Id. at 104 (citing White, 45 F.3d at 360 61). This reality is, perhaps, better analyzed by assuming that Webasto did not hire him due to his perceived disability (whether Webasto knew that was what it was doing or not) and proceeding to consider Webasto s explanation at the next stage of the prescribed analysis. Defendant Webasto has come forward with a legitimate, nondiscriminatory reason for not hiring him: it concluded that he was not qualified based on the results of the examination at the Kentucky Back Center as reported by Dr. Lester and which stated that McDonald could not perform the work required in the position for which he had been hired. Unfortunately for Plaintiff, he has not provided evidence from which a jury might reasonably reject Webasto s explanation beyond his conclusory assertion that Webasto sought to reach the 10 conclusion that undergo second a he was disabled medical because examination it required after the him first to one revealed that he had a history of degenerative disc disease but was, in the opinion of the health care provider performing that examination, able to perform the essential job functions. That fact, alone, is not evidence that Webasto was shopping for a particular opinion or sought anything more than an evaluation of his ability offered. to perform McDonald rightfully require the does and work not even required dispute condition results of a medical examination. in that his the position Webasto employment could on the Nor does McDonald suggest that the physical requirements contained in Webasto s position description, against which his ability to perform job-related functions was measured, were anything other than job-related and consistent with business necessity. He has provided the Court with no citation to relevant statute, regulation, or caselaw to support his argument that an employer cannot seek a second opinion or that its pre-employment inquiry is per se limited once an initial evaluation is received. Nor has the Court, through its own research, found any law which would support this argument. Looking at all of the evidence in the light most favorable to Plaintiff, the Court agrees that, with hindsight, a reasonable juror could conclude that Dr. Lester s opinions are 11 premised on what the future might hold for Colin McDonald and his degenerative disc condition, him. . . . as Plaintiff argues. Page ID # 190.] not the evidence before [Response to MSJ, DE 24 at 12, That does not change the fact that Lester simply communicated to Webasto that Plaintiff could not perform the duties of the job for which he was to be employed. Lester's conclusion was in error, that error attributable to Dr. Lester and not to Webasto. is If Dr. entirely McDonald has failed to present any evidence whatsoever which indicates that Webasto had an obligation to look behind Lester s conclusion or that it based its decision not to employ Plaintiff on any factor other than the report made by Dr. Lester in which he concluded that Plaintiff was unable to perform the job duties essential to the position for which he applied. It follows that Plaintiff s claim of disability discrimination under the ADA fails as a matter of law. B. Plaintiff s Breach of Contract and Promissory Estoppel Claims In the Commonwealth of Kentucky, a contract for permanent employment which is not supported by any consideration other than the obligation of services to be performed on the one hand and wages to be paid on the other is a contract for an indefinite period, and, as such, is terminable at the will of either party. Edwards v. Ky. Utils. Co., 150 S.W.2d 916, 917 12 18 (Ky. 1941). Where there is no clearly manifested intent to alter an employee s employment status from at-will to one where he could only be terminated for cause, the default employment relationship is at will. See Street v. U.S. Corrugated, Inc., No. 1:08-cv-00153, 2011 WL 304568, at *5 (W.D. Ky. Jan. 25, 2011) ( Absent a clear statement not to terminate without cause, the assumption is that the parties intended to enter into an ordinary either employment party. ) relationship, (citations terminable omitted). at the Absent a will of specific contractual provision stating that discharge may only be done for cause, an employer may ordinarily discharge an employee for good cause, for no cause, or for a cause that some might view as morally indefensible. Miracle v. Bell Co. Emergency Med. Svcs., 237 S.W.3d 555, 558 (Ky. Ct. App. 2007) (citations omitted); 99-5560, see also Mayo v. Owen Healthcare, Inc., Nos. 99-5477, 2000 WL 1234359, at *2 (6th Cir. Aug. 24, 2000) (interpreting Kentucky law as holding employment is at will unless the parties otherwise agree ). Here, no written employment contract exists, nor is there evidence that Plaintiff was made or accepted an offer of employment on any terms other than at-will. Thus, the decision not to employ Plaintiff was reserved to Defendant, and there can be no breach of contract on the facts before this Court. 13 Further, an at-will employee cannot estoppel claim against an employer. assert a promissory See Louisville & Nashville R.R. Co. v. Wells, 160 S.W.2d 16, 18 (Ky. 1942) (holding that an aspiring employee cannot sue for lost wages on an unfulfilled promise of at-will employment); Jackson v. JB Hunt Transp., Inc., 384 S.W.3d 177 (Ky. Ct. App. 2012) (holding that an atwill employee has no employment security to begin with, and therefore cannot give up reliance on the employer). any such employment security in Accordingly, on the facts of this case, Plaintiff s promissory estoppel claim fails as a matter of law. IV. Conclusion For all of the reasons set forth in this memorandum opinion and order, Plaintiff s claims fail as a matter of law, and Motion for summary judgment in favor of Defendant is appropriate. Accordingly, IT IS ORDERED that Summary Judgment [DE 23] is GRANTED. This the 18th day of October, 2013. 14 Webasto s
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