Potvin v. Champlain Cable Corp.

Annotate this Case

Potvin v. Champlain Cable Corp. (95-385); 165 Vt 504; 687 A.2d 95

[Opinion Filed 18-Oct-1996]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 95-385

Claire Potvin Supreme Court

On Appeal from
v. Chittenden Superior Court

Champlain Cable Corp. April Term, 1996

Linda Levitt, J.

Leslie C. Pratt, Montpelier, for plaintiff-appellant

Coddy Marx, Patricia M. Sabalis and Anita R. Tuttle of Downs Rachlin &
Martin, Burlington, for defendant-appellee

PRESENT: Allen, C.J., Gibson, Dooley (FN1), Morse and Johnson, JJ.

JOHNSON, J. This employment discrimination case raises two important
issues: (1) whether an employee whose physical impairment limits her
ability to work certain hours may be "substantially limit[ed]" for purposes
of the Fair Employment Practices Act (FEPA), 21 V.S.A. § 495d(5)(A), and
(2) whether federal labor law preempts a state-law disability
discrimination claim brought by an employee who is covered by a collective
bargaining agreement. The trial court held that plaintiff's claim is not
preempted by federal law, but granted summary judgment to defendant on the
ground that plaintiff's impairment did not substantially limit her ability
to work. We agree that plaintiff's claim is not preempted, but conclude
that plaintiff has made a sufficient factual showing to support her claim
that she was substantially limited in her ability to work. Accordingly, we
reverse the court's decision granting summary judgment to defendant.

Plaintiff has been employed by defendant Champlain Cable Corporation
since 1977. In 1988, she took a position as a first-shift expediter and
remained in that position until October of 1990, when she discovered that
she had ulcerative colitis. As a result of her medical condition,
plaintiff underwent three surgeries in a procedure known as a colectomy,
which ultimately resulted in the removal of her large intestines.

Plaintiff's first surgery occurred in November 1990 and caused her
absence from work until January 14, 1991. When she returned to work, she
continued in her position as a first-shift expediter. On February 20,
1991, plaintiff underwent a second surgery, the recovery from which
resulted in her absence from work until May 1991. She once again returned
to work as a first-shift expediter. After plaintiff returned to work,
however, the company assigned her to the second shift, which was scheduled
from 3:00 p.m. until 11:00 p.m. According to defendant, plaintiff was
moved to the second shift to make defendant's business more responsive to
the needs of companies on the West Coast, which do not close business until
5:00 p.m. Pacific Standard Time (8:00 p.m. Eastern Standard Time).
Plaintiff, a member of the International Brotherhood of Teamsters, was
chosen for the reassignment based on the seniority procedure dictated by
the collective bargaining agreement.

In July 1991, plaintiff underwent her third surgery, and in October
1991, plaintiff was released by her doctor to return to work. At that
time, plaintiff informed defendant that she could not return to work on the
second shift because her physical condition caused her to have excessive
bowel movements during the evening hours and required her to take frequent
and lengthy restroom breaks. She supported this claim with a letter from
her doctor stating that she should return to work the day shift. Plaintiff
requested that she be given a first- or third-shift position or, in the
alternative, be given a light-duty second-shift position. Defendant
refused her request and told her that she could return as a second-shift
expediter or not return at all. Five months later, in March 1992,
defendant offered plaintiff a position as a spark tester on the third

shift, which plaintiff accepted. She is currently employed by defendant as
a first-shift utility operator.

In October of 1992, plaintiff filed suit against defendant, alleging
that defendant had discriminated against her based on her gender (FN2) and
handicap. Defendant moved for summary judgment, arguing (1) that
plaintiff's claims were preempted by § 301 of the Labor Management
Relations Act, 29 U.S.C. § 185(a) (1988), (2) that plaintiff was barred
from bringing the suit because she had failed to use the grievance
procedure established by the collective bargaining agreement, and (3) that
plaintiff had failed to establish that she was a "handicapped individual"
for the purposes of FEPA. See 21 V.S.A. § 495d(5)(A) ("handicapped
individual" defined as person who "has a physical or mental impairment
which substantially limits one or more major life activities"). The trial
court held that plaintiff's claim was not preempted, but ruled in favor of
defendant on the ground that plaintiff's impairment was not "substantially
limiting." The court did not reach defendant's argument that plaintiff had
failed to exhaust the remedies provided by the collective bargaining
agreement. Plaintiff appealed. Defendant cross-appealed, urging the
preemption and exhaustion arguments as alternative bases for the court's
decision.

II.

We begin by considering the court's decision to grant summary judgment
to defendant on the ground that plaintiff failed to show that she was a
"handicapped individual" as defined by FEPA. See id. When reviewing a
grant of summary judgment, this Court applies the same standard as the
trial court. Massachusetts Mut. Life Ins. Co. v. Ovellette , 159 Vt. 187,
189, 617 A.2d 132, 133 (1992). Summary judgment should be granted when,
taking all the allegations made by the nonmoving party as true and giving
the nonmoving party the benefit of all doubts and inferences, there are no
genuine issues of material fact and the movant is entitled to judgment as a
matter of law. Id. "Where the moving party does not bear the burden of
proof

at trial, it may satisfy its burden of production by showing the court that
there is an absence of evidence in the record to support the nonmoving
party's case. . . . The burden then shifts to the nonmoving party to
persuade the court that there is a triable issue of fact." Ross v. Times
Mirror, Inc., ___ Vt. ___, ___, 665 A.2d 580, 583 (1995).

As in any handicapped-discrimination claim brought under FEPA, the
"first issue . . . is whether the plaintiff is a `handicapped individual'
and thus within the protection of the Act." Hodgdon v. Mt. Mansfield Co.,
160 Vt. 150, 163, 624 A.2d 1122, 1129 (1992); see 21 V.S.A. § 495(a)(1)
("It shall be unlawful employment practice . . . [f]or any employer . . .
to discriminate . . . against a qualified handicapped individual.") The
statute defines a handicapped individual as a person who "has a physical or
mental impairment which substantially limits one or more major life
activities." 21 V.S.A. § 495d(5)(A). As defendant does not dispute that
plaintiff's medical condition is a "physical impairment," the only question
to be resolved is whether her impairment is "substantially limiting."

There is no simple test or bright-line rule to aid in answering this
question. The statute gives only an imprecise definition: "`Substantially
limits' means the degree that the impairment affects an individual's
employability. A handicapped individual who is likely to experience
difficulty in securing, retaining, or advancing in employment would be
considered substantially limited." 21 V.S.A. § 495d(8). Under the
Americans with Disabilities Act (ADA), which employs identical language,
see 42 U.S.C. § 12102(2) (Supp. II 1990), "substantially limits" has been
defined as "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 person having comparable training, skills and abilities." 29
C.F.R. § 1630.2(j)(3) (1995).(FN3) Unlike, for example, the regulations

governing federal disability benefits, see 20 C.F.R. Pt. 404, Subpt. P,
app. 1 (1996), the Equal Employment Opportunity Commission has not
developed a "laundry list" of impairments that are considered substantially
limiting. 29 C.F.R. Pt. 1630 app. (1995). Rather, the guidelines make
clear that the determination must be made on a case-by-case basis. Id.

The trial court, in finding that plaintiff was not substantially
limited, relied primarily on plaintiff's statement in her interrogatories
that she had been able to "perform full time regular duty" since her return
to work, and that "she would have been able to perform [her] regular duties
in [her] prior job even if [she] had been hired back in such a position."
Apparently, the court treated this statement as an admission by plaintiff
that she was able to work as a second-shift expediter, rather than an
assertion by plaintiff that she was "capable of performing the essential
functions of the job." 21 V.S.A. § 495d(6). Given plaintiff's consistent
position that she was able to perform the requirements of the expediter
position, but not able to work the second shift, we are not persuaded that
this statement was an admission that plaintiff was in fact capable of
working as a second-shift expediter. The interpretation adopted by the
trial court is inconsistent with plaintiff's deposition testimony, her
doctor's letter advising her to work the first shift, and her supervisor's
concession in his deposition that "[i]t was pretty clear from the doctor's
notes that [plaintiff] was unable to work second shift." At most the
statement is ambiguous, and on defendant's motion for summary judgment we
allow plaintiff the benefit of the doubt.

In any event, defendant does not press the argument that plaintiff was
capable of working the second shift. Rather, defendant emphasizes
plaintiff's return to work after five months as evidence that she was not
substantially limited in her ability to work. We note first that
plaintiff's return to work on the third (and later the first) shift is
unrelated to her claim that she was substantially limited because she was
unable to work second-shift hours. From the

beginning, plaintiff asked to be moved to the first or third shift, and she
has consistently maintained that she was able to work at those times.
Moreover, plaintiff claims that her impairment, the need to use the
bathroom frequently at certains times of day, continues to the present.

Assuming, however, that defendant correctly characterizes plaintiff's
impairment as lasting only five months, the impairment may nonetheless have
substantially limited plaintiff's ability to work. The duration of an
impairment is relevant to whether an impairment is substantially limiting.
See 29 C.F.R. § 1630.2(j)(2)(ii). Temporary injuries, such as broken or
sprained limbs that heal properly within a few weeks, are not considered
substantially limiting. See id. Pt. 1630 app. Plaintiff's impairment,
however, lasted for at least five months, and was the result of a long-term
illness that required three separate surgeries. We cannot say, as a matter
of law, that plaintiff's disability was too fleeting to be covered by FEPA.

Next, defendant argues that plaintiff was not substantially limited
because she was capable of performing her job as an expediter, or any other
job, on the first or third shift. This characterization of the case begs
the question; plaintiff was not limited in her ability to perform certain
tasks but in her ability to work at certain times. To correct a serious
gastrointestinal problem, plaintiff underwent three surgeries that together
entailed the removal of her large intestine and the rebuilding of her small
intestine. As a result of this treatment, plaintiff's activities were
restricted because of her frequent need to use the bathroom. On some days
plaintiff needed to use the bathroom as many as thirty times; the need was
greater at certain times of the day, specifically the evening hours. This
condition understandably posed a significant obstacle to working
second-shift hours; unless an employer was willing to accept the fact that
she would spend much of her work time in the bathroom, plaintiff was unable
to work a second-shift job.

Few courts have considered the issue of whether inability to work at
certain times of the day substantially limits a person's employability for
purposes of the ADA or analogous anti-

discrimination laws. The Second Circuit, however, has held that a nurse
who was unable to work before 10:00 a.m. "was a handicapped individual
within the meaning of the Rehabilitation Act," because her "illness and
medication regime interfered with her ability to arrive at work on time."
Guice-Mills v. Derwinski, 967 F.2d 794, 797 (2d Cir. 1992). The nurse
suffered from severe depression, which combined with the drugs prescribed
to treat her condition made it difficult for her to wake in the morning.
The district court reasoned that her "impairment falls within the statute
even though it interferes with ability to work only during certain hours."
Guice-Mills v. Derwinski, 772 F. Supp. 188, 198 (S.D.N.Y. 1991); see also
Rhone v. United States Dep't of the Army, 665 F. Supp. 734, 742 (E.D. Mo.
1987) (noting that employee whose chronic sarcoidosis precluded him from
working evening or night shift was substantially limited by his
impairments).

The Montana Supreme Court also recently considered this issue in
Martinell v. Montana Power Co., 886 P.2d 421 (Mont. 1994). There, the
plaintiff, a laboratory technician who worked rotating shifts, was advised
by a doctor to rearrange her work schedule to more regular hours. She
suffered from endometriosis, a condition in which uterine tissue detaches
from the uterus and reattaches to other body tissues and organs. As her
condition worsened, her doctor advised that working regular hours would
benefit plaintiff by allowing normal sleep patterns, eliminating stress,
and minimizing other symptoms. The court concluded that the plaintiff was
a handicapped person under the Montana Human Rights Act because her
endometriosis substantially limited her employment. Id. at 430.

Defendant's reliance on Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240 (E.D. La. 1995), is misplaced. The Zatarain plaintiff, a news
anchor, delivered three newscasts each evening, at 5:00 p.m., 6:00 p.m.,
and 10:00 p.m. After beginning fertility treatments, the plaintiff was
advised by her doctor to reduce her schedule so that she worked only the
6:00 and 10:00 newscasts, with a rest in between. Her doctor's specific
objection, based on the timing of her fertility treatments, was that she
should not work three back-to-back evening broadcasts.

At most, the court concluded, this "prevented her from holding the
particular position of prime-time news anchor at [this station]." Id. at
244. Zatarain stands for the obvious proposition that not every person who
is unable to work a certain schedule is substantially limited. A news
anchor who is barred from a specific job because the broadcast schedule
interferes with her fertility treatments is not restricted to the same
degree as an industrial worker unable to work any job on the second shift.

We see no reason to treat plaintiff differently from an employee who
is unable to lift heavy objects or has impaired vision or hearing. The
relevant question in any such case is whether the impairment substantially
limits the plaintiff's employability. Indeed, the limitation that
plaintiff labored under is analogous to one of the EEOC's illustrations of
a substantial limitation -- an allergy that prevents an employee from
working in a high-rise office building. 29 C.F.R. Pt. 1630 app. (1995). In
both cases the employee can perform the functions of a job, but only under
certain conditions, geographical or temporal. This type of limitation must
be treated like any other, and looked at on a case-by-case basis to
determine if the individual is "significantly restricted in the ability to
perform a class of jobs or a broad range of jobs in various classes" as
compared to the average person with similar qualifications. Id. Pt. 1630
app.

Here, plaintiff's limitation can be construed as either an inability
to perform the class of second-shift jobs or an inability to perform a
broad range of different industrial and nonindustrial jobs that require
evening or second-shift work hours. Either way, should plaintiff prove her
case at trial, she would meet the definition of "substantially limited."

II.

Because we conclude that plaintiff made a sufficient showing to
survive summary judgment on her claim that she was a "handicapped
individual" under FEPA, we consider the other arguments urged by defendant
as grounds for summary judgment. Defendant first maintains that
plaintiff's claim under FEPA is preempted by § 301 of the Labor Management

Relations Act, 29 U.S.C. § 185(a) (1988). Under federal law,

when resolution of a state-law claim is substantially dependent
upon analysis of the terms of an agreement made between the
parties in a labor contract, that claim must either be treated
as a § 301 claim or dismissed as pre-empted by federal labor-contract
law.

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (citation omitted).
Relying on Lueck, defendant argues that plaintiff's FEPA claim is
"inextricably intertwined with consideration of the terms of the labor
contract," id. at 213, and must therefore give way to the demands of § 301.

The basis for defendant's argument is that the collective bargaining
agreement may be relevant to the question of accommodation. To make a
successful discrimination claim, plaintiff must show not only that she was
a handicapped individual, but that she was a "qualified handicapped
individual" entitled to the protection of FEPA. See 21 V.S.A. § 495(a)(1);
State v. G.S. Blodgett Co., 163 Vt. 175, 181, 656 A.2d 984, 988 (1995) (in
handicapped-discrimination claim under FEPA, plaintiffs have burden of
showing that employee was qualified handicapped individual). A "qualified
handicapped individual" is a person "capable of performing the essential
functions of the job . . . with reasonable accommodation to his handicap."
21 V.S.A. § 495d(6). Plaintiff suggests two ways in which defendant could
have accommodated her: first, that the second-shift expediter position was
unnecessary and could have been reassigned to the first shift, or to an
off-shift, such as 11:00 a.m. to 7:00 p.m., or, alternatively, that
plaintiff could have "bumped" less senior employees from other first- or
third-shift positions. As seniority rights of employees are defined by
the collective bargaining agreement, a court considering the reasonableness
of the latter option would have to consult the collective bargaining
agreement. According to defendant, this possibility means that plaintiff's
FEPA claim is "substantially dependent upon analysis of the terms of an
agreement made between the parties in a labor contract," Lueck, 471 U.S. at
220, and therefore preempted.

The Supreme Court has not given an expansive interpretation to § 301
preemption of state

law claims. See Livadas v. Bradshaw, 114 S. Ct. 2068, 2077 (1994)
("sensible `acorn' of § 301 pre-emption . . . has sprouted modestly in more
recent decisions . . . [but] has not yet become, nor may it, a . . .
`mighty' oak"). Rather, the Court has consistently recognized that § 301
does not "preempt state rules that proscribe conduct, or establish rights
and obligations, independent of a labor contract." Lueck, 471 U.S. at 212.
In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988), the Court
held that a state law claim of retaliatory discharge was not preempted by §
301, because "resolution of the state-law claim [did] not require
construing the collective-bargaining agreement." Id. at 407. This was
true even though the same set of facts could have been the basis of a
dispute under the collective bargaining agreement; "as long as the
state-law claim can be resolved without interpreting the agreement itself,
the claim is independent" of the agreement for § 301 preemption purposes.
Id. at 410. Recently, the Court again emphasized that "§ 301 cannot be
read broadly to pre-empt nonnegotiable rights conferred on individual
employees as a matter of state law." Livadas, 114 S. Ct. at 2078.

Defendant nonetheless maintains that the Court's decision in Lueck
controls the outcome of this case, and requires us to hold that plaintiff's
state law claim is preempted. Defendant reads the Court's decision in
Lueck too broadly. There, the Court emphasized that the employee's state
law claim was defined by the collective bargaining agreement. See Lueck,
471 U.S. at 217 (duties imposed and rights established through state tort
of bad faith handling of insurance claim derive from rights and obligations
established by contract). The employee protections established by FEPA are
in no way derived from the collective bargaining agreement; rather, FEPA
establishes "rights and obligations, [that are] independent of a labor
contract." Id. at 212.

Defendant's position, that plaintiff loses her rights under FEPA
because she is covered under the collective bargaining agreement,
contradicts the strong public policy supporting state

anti-discrimination laws.(FN4) See 42 U.S.C. §§ 2000e-5(c) & 2000e-7 (1988)
(endorsing state antidiscrimination remedies). The collective bargaining
agreement gives plaintiff no protection from discrimination on the basis of
her disability. Her right is an independent creation of state law, and the
Supreme Court has repeatedly recognized that states can confer such
nonnegotiable rights on employees. See Livadas, 114 S. Ct. at 2078 ("§ 301
cannot be read broadly to pre-empt nonnegotiable rights conferred on
employees as a matter of state law"); Lingle, 486 U.S. at 409 ("§ 301
pre-emption merely ensures that federal law will be the basis for
interpreting collective bargaining agreements, and says nothing about the
substantive rights a State may provide to workers when adjudication of
those rights does not depend upon the interpretation of such agreements");
Lueck, 471 U.S. at 213 ("[Section] 301 does not grant the parties to a
collective-bargaining agreement the ability to contract for what is illegal
under state law. . . . [I]t would be inconsistent with congressional intent
. . . to preempt state rules that proscribe conduct, or establish rights
and obligations, independent of a labor contract."). These pronouncements
would be meaningless if state law discrimination claims were preempted
every time a court needed to consult a collective bargaining agreement in
the course of resolving a claim. Indeed, it is difficult to imagine a
discrimination claim brought by a union employee that would not
tangentially involve a collective bargaining agreement; evaluating
employment decisions in a unionized workplace requires understanding the
rules relating to seniority, job qualification, layoffs and similar issues.

The Supreme Court has explicitly recognized that "not every dispute .
. . tangentially involving a provision of a collective-bargaining
agreement, is pre-empted by § 301." Lueck, 471 U.S. at 211. In Lingle,
the Court noted:

[A]s a general proposition, a state-law claim may depend for its
resolution upon

both the interpretation of a collective-bargaining agreement and a
separate state-law analysis that does not turn on the agreement.
In such a case, federal law would govern the interpretation of
the agreement, but the separate state-law analysis would not be
thereby pre-empted.

Lingle, 486 U.S. at 413 n.12. We conclude that this is such a case.
Although the collective bargaining agreement may be relevant to whether
plaintiff could be reasonably accommodated, the meaning of the agreement is
not central to plaintiff's claim. Defendant has not identified any
provision of the agreement that is actually disputed or potentially open to
conflicting interpretations. See Livadas, 114 S. Ct. at 2078 ("[W]hen the
meaning of contract terms is not the subject of dispute, the bare fact that
a collective-bargaining agreement will be consulted in the course of
state-law litigation plainly does not require the claim to be
extinguished."). The tangential involvement of the collective bargaining
agreement in this case is not sufficient to preempt plaintiff's
discrimination claim under FEPA.

III.

Finally, we do not accept defendant's argument that plaintiff failed
to exhaust the remedies available to her under the collective bargaining
agreement. See Ploof v. Village of Enosburg Falls, 147 Vt. 196, 200, 514 A.2d 1039, 1042 (1986) (where collective bargaining agreement establishes
grievance and arbitration procedures for redress of grievances, employee
must at least attempt to exhaust these procedures before resorting to
judicial remedies). Although the collective bargaining agreement does state
that "[t]he grievance procedure and arbitration provided for herein shall
constitute the sole and exclusive method of [resolving] any and all
grievances," the agreement defines "grievance" as "any dispute between the
Employer and the Union, or between the Employer and any employee concerning
the effect, interpretation, application, claim or breach or violation of
this Agreement." Plaintiff had no dispute concerning the collective
bargaining agreement; the agreement does not protect against discrimination
on the basis of a disability. She was not, therefore, required to pursue
the grievance procedure. See Gorski v. Local 134, IBEW, 636 F. Supp. 1174,
1183 (N.D. Ill. 1986) (where employee's

claim does not implicate collective bargaining agreement, no recourse to
agreement's grievance procedures is required).

Reversed and remanded.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. Justice Dooley heard oral argument in this case but did not
participate in the decision.

FN2. Plaintiff conceded below that defendant was entitled to summary
judgment on the sex discrimination claim, and that issue is not part of
this appeal.

FN3. The relevant language of the ADA is based on that of the
Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-797b (West 1985 & Supp.
1996), "which prohibits federal agencies from discriminating against
`qualified handicapped persons.'" Guice-Mills v. Derwinski, 967 F.2d 794,
797 (2d Cir. 1992) (quoting Hall v. United States Postal Serv., 857 F.2d 1073, 1077 (6th Cir. 1988)). The Rehabilitation Act defines a handicapped
individual as any person who "has a physical or mental impairment which
substantially limits one or more of such person's major life activities."
29 U.S.C.A. § 706(8)(B) (West Supp. 1996).

FN4. The Court has recognized this public policy, and in Lingle noted
approvingly the lower court's statement that "`§ 301 does not pre-empt
state anti-discrimination laws.'" Lingle, 486 U.S. at 412 (quoting Lingle
v. Norge Div. of Magic Chef, Inc., 823 F.2d 1031, 1046 n.17 (7th Cir.
1987)).

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