HOWARD BAER, INC ., ET AL . V. HERBERT D . SCHAVE
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2001-SC-0740-DG
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HOWARD BAER, INC ., ET AL.
V.
APPELLANTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-1969-MR
CLARK CIRCUIT COURT NO. 97-CI-00342
HERBERT D. SCHAVE
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING
This Court granted discretionary review to consider what proof is
necessary to establish that a medical restriction on heavy lifting is a "disability' for
purposes of the Kentucky Civil Rights Act.' To decide this issue, we must consider
whether being disqualified from performance of a single, task-specific job qualifies an
individual as disabled under the Act. The United States Supreme Court recently
considered this question in two seminal disability discrimination cases, Toyota v.
Williams 2 and Sutton v. United Airlines, 3 and we deem it appropriate to follow federal
precedent .4
' KRS 344 .010 et seq.
534 U .S . 184 (2002).
2
527 U.S . 471 (1999) .
4 See infra footnote 5.
Howard Baer, Inc. i s a trucking company that delivers bread and milk to
Kroger grocery stores . Baer employs more than 350 truck drivers and has eight
terminals across the nation . Herbert D. Schave was first employed as a truck driver
with Baer in 1980, and in 1987 he began a "milk peddle" run from Baer's Winchester,
Kentucky, terminal . To "peddle milk," a driver picks up a loaded trailer at a milk
distribution point and delivers the milk to Kroger stores on a designated route.
In April 1993, Schave fell off his truck in the terminal yard and injured his
shoulder . Schave was treated by his family physician and continued to work until
October 1993 . He was then referred to an orthopedist, Dr. Frank Burke, who diagnosed
a torn rotator cuff and operated on the shoulder in January 1994. The shoulder was
repaired and rehabilitated, and in April 1994, Schave passed a physical examination
pursuant to federal motor carrier safety regulations . The examination allowed him to
renew his commercial driver's license and qualified him to continue driving a truck. In
May 1994, Dr. Burke cleared Schave to return to work, with the restriction that he avoid
"repetitive overhead positioning of the arm, crawling, [and] lifting greater than 40
pounds except occasionally." Dr. Burke concluded, "As long as the patient is able to
protect his shoulder under the circumstances described here, this patient could return
to work with the job description of a truck driver."
Schave gave Dr . Burke's return-to-work authorization to Pete Ingram, .
manager of Baer in Winchester. Ingram told Schave that he would have to discuss the
matter with Larry Monroe, Baer's safety director. Monroe told Schave that he had to be
"100%," i .e., to have no medical restrictions in order to return to work. Schave's name
did not appear on the annual bid list for routes at the Winchester terminal in June 1994,
and Schave was never allowed to return to work at Baer . Subsequently, he settled a
workers' compensation claim against Baer, and in December 1994 he began work as a
truck driver for Ryder Transportation Services .
In September 1997, Schave filed suit against Baer in the Clark Circuit
Court, alleging disability discrimination in violation of KRS 344 .040(1), and retaliation for
having filed a workers' compensation claim . On the disability discrimination claim, the
jury returned a verdict for Schave for $350,000 for lost earnings, $50,000 for humiliation
and emotional distress, and $100,000 in punitive damages . The jury found for Baer on
the retaliation claim. The Court of Appeals affirmed on the issues presented here .
The Kentucky Civil Rights Act was modeled after federal law, and our
courts have interpreted the Kentucky Act consistently therewith .5 Under KRS
344.010(4), disability is defined as
(a) a physical or mental impairment that substantially limits
one or more of the major life activities of the individual ;
(b) a record of such an impairment ; or
(c) being regarded as having such an impairment .
To be considered disabled under the Act, an individual "must initially
prove that he or she has a physical or mental impairment .
,6
Yet having an impairment
does not alone make one disabled for purposes of the Act. An individual claimant must
also prove that the impairment "limits a major life activity," and this limitation must be
5 Bank One, Ky., N .A ., v. Murphy , Ky., 52 S.W .3d 540 (2001); Lococo v. Barger, 958 F.
Supp. 290 (E.D. Ky. 1997); Mills v. Gibson Greetings, Inc. , 872 F.Supp .366 (E.D. Ky.
1994); Harker v. Federal Land Bank, Ky., 679 S .W .2d 226 (1984)(citing Kentucky
Comm'n on Human Rights v. Commonwealth of Kentucky, Dept. of Justice, Ky.App .,
586 S .W.2d 270 (1979)) . _
6 Toyota Motor Mfg . Ky., Inc., v. Williams, 534 U .S . 184,122 S.Ct. 681, 690 (2002).
"substantial ."' Major life activities include, among other things, walking, seeing,
hearing, performing manual tasks, $ caring for oneself, speaking, breathing, learning,
and working.9
Baer concedes that Schave's torn rotator cuff and consequent lifting
restriction constitute a physical impairment . Baer contends, however, that Schave is
not substantially limited in performing any major life activity, and that he is therefore not
`disabled' within the meaning of the Act.
The United States Supreme Court recently considered this issue in Toyota
v. Williams , 1o stating that the relevant question was "what a plaintiff must demonstrate
to establish a substantial limitation in the specific major life activity of performing
manual tasks."" The Court, quoting EEOC regulations, stated that substantially limited
means
"[u]nable to perform a major life activity that the average
person in the general population can perform"; or
"[s]ignificantly restricted as to the condition, manner or
duration under which an individual 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 the same major life activity . "12
The following factors are to be considered in determining whether an
individual is substantially limited in a major life activity :
"[t]he nature and severity of the impairment ; [t]he duration or
expected duration of the impairment ; and [t]he permanent or
Id .
Id . (citing 45 CFR § 84 .3(j)(2)(ii)(2001)) .
Sutton at 480.
"-.S. 184.
534 U
11 _Id
. at 196 .
12 Id . (quoting 29 CFR § 1630 .20)(2001)).
8
long-term impact, or the expected permanent or long-term
impact of or resulting from the impairment . "13
The Court further held that the "central inquiry must be whether the claimant is unable
to perform the variety of tasks central to most people's daily lives, not whether the
claimant is unable to perform the tasks associated with [a] particular job ."14 Of course,
employment is within the ambit of daily life activities. 15
The evidence presented at trial showed that Schave did not meet the
requirements associated with his work as a milk-peddle driver, but that he was not
substantially limited in his major life activities . Schave's supervisor at Ryder testified
that he performs all the responsibilities related to driving tractor trailers, and that his
physical condition has not kept him from doing any job she has asked him to do. Dr.
Burke testified that Schave's shoulder allows him to perform most of the tasks
necessary to the job at Baer except for frequent lifting of forty or more pounds over his
head, stating, "Forty pounds should be a range that would allow a person to do most
anything except specifically put forty pounds out at shoulder level and put it over you
head." Upon cross-examination, Schave acknowledged that there were elements of the
job at Baer that he could not do. He stated that he could not hook milk off the back of a
truck because of the forty pound weight restriction, and that he could not pull 180 to 200
pounds .
From the foregoing it is clear that Schave is not unable to perform a
"major life activity," including employment . He is merely unable to perform heavy lifting
_Id . (quoting 29 CFR 1630.2(j)(2)(i)-(iii)) ; see also Schneider v. Chas. Seligman
Distributing Co ., Inc . , 995 F . Supp. 756 (E .D .Ky. 1998) .
`' Id. at 692 .
15
Sutton at 480 .
13
tasks associated with his employment at Baer. 16 An "impairment that interferes with
work related tasks . . . does not necessarily rise to the level of a disability under the
Act, "1' and a restriction on lifting "heavy objects may disqualify a person from particular
jobs but does not necessarily interfere with the central functions of daily life .""
Therefore, we conclude that Schave has failed to meet the disability standard of the
Act.
Schave further contends that even if he is not actually disabled under
KRS 344.010(4)(a), he is disabled for purposes of the Act pursuant to subsection (c)
because he is "being regarded as" having an impairment . The "regarded as" standard
was addressed in Sutton v. United Airlines, Inc. 19 The United States Supreme Court
considered this disability standard in the context of individuals who did not meet a vision
requirement, and who were thereby refused positions as airline pilots with United
Airlines. The Court rejected the notion that the vision standard for pilots meant that the
airline regarded the plaintiffs as disabled, holding that employers were at liberty to
16
Many appellate courts have held that lifting restrictions less than Schave's do not
constitute a substantial limitation on any ma~orlife activity. See Colwell v. Suffolk
County Police Dept. , 158 F.3d 635, 644 (2n Cir. 1998), cert. denied, 526 U.S . 108
(1999)(10-20 pound lifting restriction) ; Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir.
1998), cert. denied sub nom, Gutridge v. Midland Computer, Inc. , 526 U .S . 1113
(1999)(20-45 pound lifting restriction) ; Snow v. Ridgeview Medical Center, 128 F.3d
1201, 1207 (8th Cir. 1997)(25 pound lifting restriction) ; Thompson v. Holy Family
Hospital, 121 F .3d 537, 540 (9th Cir. 1997)(25-100 pound lifting restriction) ; Williams v.
Channel Master Satellite System, Inc. , 101 F .3d 346, 349 (4th Cir. 1996), cert. denied
sub nom, Williams v. Avnet, Inc. , 520 U .S . 1240 (1997)(25 pound lifting restriction) ;
Molina v. Mai Del Caribe, Inc. , 83 F .Supp. 2d 271, 276-77 (D .P .R. 2000)(25 pound
lifting restriction) ; Piascyk v. City of New Haven , 64 F.Supp .2d 19, 29 (D .Conn .
1999)(15 pound lifting restriction) ; Plumb v . Abbot Laboratories , 60 F.Supp .2d 642,
651-52 (E.D. Mich. 1999)(10 pound lifting restriction) ; Horth v. General Dynamics Land
Systems, Inc. , 960 F .Supp. 873, 878 (M .D. Pa . 1997)(20 pound lifting restriction) .
Mack v. Great Dane Trailers, 308 F.3d 776, 780 (7th Cir. 2002).
18 _Id .
19
527 U.S . 471 (1999) .
establish reasonable job standards that disqualify applicants who could not meet those
standards .
In so holding, the Court stated that to be "regarded as" disabled, a plaintiff
must prove that:
(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 . In both cases, it is necessary that a covered entity
entertain misperceptions about the individual - it must
believe either that one has a substantially limiting
impairment that one does not have, or that one has a
substantially limiting impairment when, in fact, the
impairment is not so limiting . 20
An employer who regards an employee as disabled must "entertain
misperceptions" resulting from "'stereotypic assumptions not truly indicative of individual
ability.
,,21
To succeed upon a regarded as disabled claim, plaintiff must "demonstrate
that an employer thought he was disabled . . . . and] that the employer thought that his
disability would prevent him from performing a broad class of jobs .,,22
Although Baer concedes that Schave has a physical impairment, there is
no evidence that Baer regarded the lifting restriction as having substantially limited
Schave in major life activities. The evidence showed only that the company perceived
Schave as not qualified to work as a truck driver for Baer because of the lifting
restriction . There was no evidence from which a jury could make inferences about
2°
21
22
_Id . at 489 ; see also Henderson v. Ardco, 247 F.3d 645 (6 th Cir. (Ky.) 2001).
Sutton at 489.
Ross v. Campbell's Soup Company, 237 F.3d 701, 709 (6th Cir. 2001).
Baer's beliefs regarding the effect of the 40 pound restriction on tasks central to
Schave's daily life .
For the foregoing reasons, the judgment of the Court of Appeals is
reversed . This cause is remanded to the trial court with directions to enter judgment for
the defendant.
Cooper, Graves, Johnstone, and Wintersheimer, JJ ., concur. Stumbo, J .,
dissents by separate opinion in which Keller, J ., joins.
COUNSEL FOR APPELLANTS :
John T. Ballantine
Walter L. Sales
Thomas M . Williams
OGDEN NEWELL & WELCH
1700 Citizens Plaza
500 West Jefferson Street
Louisville, KY 40202
Edward J . Smith
4967 U .S . Highway 42
Suite 145
Louisville, KY 40222
Stephen C. Douse
KING AND BALLOW
1100 Union Street Plaza
315 Union Street
Nashville, TN 37201
COUNSEL FOR APPELLEE :
Linda B . Sullivan
173 North Limestone Street, Suite 1
Lexington, KY 40507
William C. Jacobs
173 North Limestone Street, Suite 2
Lexington, KY 40507
RENDERED : DECEMBER 18, 2003
TO BE PUBLISHED
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Courf of ~mfurkg
2001-SC-0740-DG
HOWARD BAER, INC ., ET AL .
V.
APPELLANTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-1969-MR
CLARK CIRCUIT COURT NO . 97-CI-00342
HERBERT D. SCHAVE
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent. I believe that there was sufficient evidence for the
jury to determine that Howard Baer, Inc. regarded Schave as having an impairment that
substantially limited a major life activity.
In reviewing a judgment entered upon a jury verdict, this Court is limited to a
determination of whether the trial court erred in refusing to grant a directed verdict
motion . Bierman v. Klapheke, Ky., 967 S.W.2d 16, 18 (1998). On a motion for directed
verdict, the trial judge is required to give the opposing party the benefit of all reasonable
inferences and deductions to be drawn from the evidence . Id . A jury verdict should not
be disturbed unless found to be "palpably or flagrantly against the evidence so as to
indicate that it was reached as the result of passion or prejudice ." Id . The trial judge's
decision should not be disturbed upon appeal unless found to be clearly erroneous . Id .
Here, Schave presented evidence, particularly Baer's "100°10" rule, that indicated
Baer regarded Schave as having an impairment (inability to lift 40 lbs . over his head)
that substantially limited his ability to perform one or more major life activities (lifting and
working) . Although Schave's impairment may have legitimately precluded him from
performing certain aspects of the milk peddler job, Baer excluded him from any type of
employment by removing his name from the entire annual bid list for all truck driving
positions, including those that had differing physical requirements . There was also
testimony presented that most other trucking companies utilize a similar "100%" policy
for truck-driving jobs . Therefore, it would not have been flagrantly against the evidence
for the jury to have found that Schave was substantially limited in his ability to perform
an entire class of jobs, as Sutton v. United Air Lines, Inc. , 527 U .S. 471, 119 S. Ct .
2139, 144 L. Ed . 2d 450 (1999), requires .
In addition, "[w]here the 100% rule is applied to mildly impaired persons to
exclude them from a broad class of jobs, it may be treating them as disabled even if
they are not, thereby qualifying them for protection under the ADA and parallel statutes.
. . ." Henderson v . Ardco, Inc. , 247 F.3d 645, 653 (6t" Cir. 2001) (reversing grant of
summary judgment for employer with "100% rule," where employee was prohibited from
all employment at a plant due to lifting restrictions) . In Henderson , which was decided a
few months prior to Toyota Motor Manufacturing, Kentucky, Inc. v . Williams , 534 U .S.
184, 122 S . Ct . 681, 151 L. Ed . 2d 615 (2002), the court found that the plaintiff had
presented evidence that her employer had perceived that there was no job at all for her
at the Ardco plant, and that such evidence "gives an indication of the employer's
perception about her suitability for a class of relevantly similar employment ."
Henderson , supra, at 654. Likewise, the jury here could have reasonably inferred that
Baer had perceived Schave unsuitable for any job in the trucking industry, as evidenced
by its "100%" rule that excluded Schave from any type of employment at Baer.
The decision in Williams , supra , did not affect the Sixth Circuit's analysis .
Williams dealt with an employee's substantial limitation in the major life activity of
performing manual tasks. The Court specifically stated that it expressed no opinion on
the employee's arguments that she had been "regarded as" disabled by being
substantially limited in her ability to perform such major life activities as lifting or
working . Id . at 192-193, 122 S . Ct. at 688-689 . The Court did reiterate that when
considering the major life activity of working, the employee must show their "inability to
work in a 'broad range of jobs,' rather than a specific job ." Id . at 200, 122 S . Ct. at 693
(quoting Sutton, supra, at 492, 119 S. Ct . at 2151) . Here, a reasonable jury could have
found that Schave was regarded as being unable to perform a broad range of jobs.
Accordingly, I feel that the jury had substantial evidence to conclude that Baer
regarded Schave as disabled under the Kentucky Civil Rights Act and that decision
should not be disturbed on appeal .
Keller, J ., joins this dissent.
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