Presutti v. Felton CV-94-264-L 08/23/95 P THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Karen Presutti

v. #C-94-2 64-L

Felton Brush, Inc.

ORDER

Currently before the court is defendant's motion for summary

judgment. Document no. 16. For the reasons stated below, the

motion is granted.

BACKGROUND

Plaintiff, Karen Presutti, was hired on June 23, 1992 by

defendant, Felton Brush, Inc., as a packer/assembler. Plaintiff

was so employed until her termination on or about April 23, 1993.

On November 2, 1992, plaintiff suffered a significant sprain

to her lower back in a non-work related automobile accident. As

a result of this back injury, the plaintiff was out of work,

beginning November 2, 1993, for approximately five weeks.

According to allegations presented in plaintiff's complaint, the

defendant was aware of the reasons behind plaintiff's absence

from work. Specifically, plaintiff alleged that she kept in

contact with a lower-level manager, Karl Turgeon, concerning her

condition and intention to return to work. Plaintiff returned to work on December 1 , 1992. The

plaintiff worked from December 7, 1992 until April 2 , 1993,

performing the essential functions of her position. On April 3,

1993, plaintiff experienced another episode with her back. On

April 5, 1993, plaintiff began a second leave of absence for her

condition. On April 19, 1993, plaintiff contacted Mr. Turgeon

and indicated to him that she was scheduled for a doctor's

appointment on April 21, 1993 and expected to be back to work

within a couple of days thereafter.

However, before plaintiff returned to work, she received a

letter from defendant. The letter stated that she was being

terminated for excessive absenteeism.

Following her termination, plaintiff brought the underlying

action. Plaintiff alleged, in her complaint, that given her

disabled condition, the defendant violated provisions of the

Americans with Disabilities Act by terminating her.

The defendant, maintaining that the plaintiff bears the

burden of proving each element of her claim under the Americans

with Disabilities Act, now moves for summary judgment on Counts I

and III of plaintiff's complaint.

DISCUSSION

Summary judgment is appropriate when the record reveals "no

2 genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c); Griqqs-Rvan v. Smith,

(1st Cir. 1990).

In summary judgment proceedings, the moving party has the

burden of demonstrating the absence of a genuine issue of

material fact for trial. Anderson v. Liberty Lobby, Inc.,

,

,

(1986),

motion denied,

,

,

(1987). If the moving party carries its burden, the non-moving

party must set forth specific facts showing that there remains a

genuine issue of material fact for trial, demonstrating "some

factual disagreement sufficient to deflect brevis disposition."

Mesnick v. General Electric Co . ,

(1st Cir.

1991), cert denied, --- U.S. ,

,

(1992). In the context of summary judgment, "'genuine' means

that the evidence about the fact is such that a reasonable jury

could resolve the point in favor of the non-moving party [and]

'material' means that the fact is one that might affect the

outcome of the suit under the governing law." United States v.

One Parcel of Real Property with Bldqs.,

, 204 (1st

Cir. 1992) (citing Anderson v. Liberty Lobby, Inc.,

,

,

(1986)). The non­

moving party "may not rest upon the mere allegations or denials

3 of the adverse party's pleadings, but the [non-moving] party's

response, by affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there is a genuine

issue for trial." Fed. R. Civ. P. 56(e) . "The non-mov[ing]

party cannot content himself with unsupported allegations;

rather, he must set forth specific facts, in suitable evidentiary

form, in order to establish the existence of a genuine issue for

trial." Rivera-Muriente v. Aqosto-Alicea,

(1st

Cir. 1992). "Summary judgment may be appropriate if the non­

moving party rests merely upon conclusory allegations, improbably

inferences, and unsupported speculation." Medina-Munoz v. R.J.

Reynolds Tobacco Co.,

(1st Cir. 1990) .

With the above principles in mind, the court reviews the

arguments presented in defendant's motion for summary judgment.

Defendant contends summary judgment is appropriate in this

action because, viewing the evidence in a light most favorable to

the plaintiff, no trier of fact could reasonably find: (1) that

plaintiff is a "gualified individual" with a disability under the

Americans with Disabilities Act; and (2) that there was

intentional discrimination, in violation of 42 U.S.C. § 1981a.

I. Count I - Americans with Disabilities Act

The Americans with Disabilities Act (ADA), Pub. Law No. 101-

4 336,

(1990) (codified at

(Supp. 1995)), is a Federal antidiscrimination statute designed

to "remove barriers which prevent qualified individuals with

disabilities from enjoying the same employment opportunities that

are available to persons without disabilities." 29 C.F.R. p t .

1630 A p p . (1994). The ADA is designed to create a procedure by

which an employer must consider a disabled individual's ability

to perform the necessary functions of the specific job held or

desired. I_d. However, "[w]hile the ADA focuses on eradicating

barriers, the ADA does not relieve a disabled employee or

applicant from the obligation to perform the essential functions

of the job." JCd. Rather, the ADA is "intended to enable

disabled persons to compete in the workplace on the same

performance standards and requirements that employers expect of

persons who are not disabled."

Section 12112(a) of the ADA

sets forth the "general rule" of the Act as follows:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.

(a) (Supp. 1995).

"Covered entity," as noted in § 12112(a), includes all

employers. Further, these employers are prohibited from

5 discriminating against otherwise gualified individuals with

disabilities.

(2) (Supp. 1995).

The primary contention raised by defendant, in its motion

for summary judgment, is that plaintiff is not a "gualified

individual with a disability" within the purview of the ADA.

Succinctly, defendant contends "'Disability' is a term of art

under the ADA. Mere injury or temporary impairment -- such as

the back sprain suffered by Presutti -- does not constitute a

disability." Defendant's Memorandum of Law in Support of Motion

for Summary Judgment at 9.

The ADA provides that a "gualified individual with a

disability" is "an individual with a disability who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds

or desires."

(8) (Supp. 1995). The ADA defines

"disability" as " (A) [a] physical or mental impairment that

substantially limits one or more of the major life activities of

[an] individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment."

(2)

(Supp. 19 95).

In defining the physical conditions or disabilities intended

to be within the purview of § 12102, the ADA's interpretive

guidelines provide that "temporary, non-chronic impairments of

6 short duration, with little or no long term or permanent impact,

are usually not disabilities. Such impairments may include, but

are not limited to, broken limbs, sprained joints, concussions,

appendicitis, and influenza." 29 C.F.R. pt 1630 App. (1994). In

determining the nature and extent of a disability, the

interpretive guidelines also provide that:

Part 1630 notes several factors that should be considered in making the determination of whether an impairment is substantially limiting. These factors are (1) the nature and severity of the impairment, (2) the duration or expected duration of the impairment, and (3) the permanent or long term impact, or the expected permanent or long term impact of, or resulting from, the impairment . . . . Thus, for example, a broken leg that takes eight weeks to heal is an impairment of fairly brief duration. However, if the broken leg heals improperly, the "impact" of the impairment would be the resulting permanent limp.

29 C.F.R. pt 1630 App. (1994).

Turning attention to the case at hand, the evidence

presented indicates that plaintiff's back injury, as impairing as

it may have been, was nonetheless of a relatively short duration.

Apposite to this determination, plaintiff's deposition indicates

that she was out of work, following her initial injury, from

November 2, 1992 until December 7, 1992. Deposition of Karen

Presutti at 39, 51. Further, according to her deposition,

plaintiff was fully recovered on December 7, 1992, the date she

returned to work. I_d. at 51. Conseguently, the first episode of

7 complications associated with the back injury resulted in a leave

of absence from work of just a little more than one month. Based

on her own testimony, it is clear that the disability of which

plaintiff complains was merely temporary in nature.

Although plaintiff contends that she had a reoccurrence or

exacerbation of her November 2, 1992 injury on or around April 5,

1993, this complication likewise should not be viewed as an

indication of plaintiff's permanent disability. Here again,

plaintiff's testimony reveals that since April, 1993, she has

experienced no problems with her back. Deposition of Karen

Presutti at 82. Additionally, within her recent objection to

defendant's motion for summary judgment, plaintiff offers the

following:

Notwithstanding the fact that as of the end of April of 1993, Ms. Presutti's back was completely healed, M s . Presutti contends that at the time she was suffering from the significant lower back sprain, that it did in fact constitute a disability as that term is used in the ADA.

Plaintiff's Objection to Defendant's Motion for Summary Judgment on Count I and Count III at 8 (emphasis added).

To put it aphoristically, plaintiff's contention that her

sprain, even though temporary in nature, nonetheless constitutes

a disability, as that term is used in the ADA, is without merit.

Ms. Presutti's back injury, as devitalizing as it may have been,

was of short or temporary duration, only preventing her from working for approximately seven weeks. Therefore, in evaluating

plaintiff's condition within the ambit of the ADA, the language

of the Act and the interpretive guidelines relating to the Act,

this court opines plaintiff's condition did not rise to the level

of a permanent disability under the ADA. Moreover, given the

fact that plaintiff's post-injury physical condition is egual to

her condition pre-injury, the interpretive guidelines suggest

that

[a]n individual is not substantially limited in a major life activity if the limitation . . . does not amount to a significant restriction when compared with the abilities of the average person. For example, an individual who had once been able to walk at an extraordinary speed would not be substantially limited in the major life activity of walking if, as a result of a physical impairment, he or she were only able to walk at an average speed, or even at moderately below average speed.

29 C.F.R. pt. 1630 App. (1994).

Aside from the fact that plaintiff's condition did not, in

fact, constitute a disability, the record is also barren of any

indications establishing that the plaintiff was perceived or

regarded, by her employer, as having a permanent disability.

Plaintiff merely makes the bald assertion that the sole reason

behind her termination was her disability. Although plaintiff

was no doubt absent from work for a few weeks on end, her

correspondence with her supervisors indicated her intentions to be fully-healed and not subject to physical limitations on her

return to work. See Deposition of Karen Presutti at 98.

Upon careful review of plaintiff's deposition, this court is

content that a reasonable person, regarding plaintiff's various

actions, would not perceive plaintiff as having a permanent

disability. Fundamentally significant on the issue of whether

plaintiff's condition was perceived as a disability is the fact

that plaintiff, herself, never asked for or reguested assistance

to accommodate her condition from her supervisors at Felton

Brush, Inc. Deposition of Karen Presutti at 75-76.

As a tangential but relevant aside, in attempting to

correlate her condition with a disability, as defined under the

ADA, plaintiff draws substantial attention to provisions of the

Rehabilitation Act. Plaintiff's directive to the Rehabilitation

Act stems from the fact that the definition of "disability" under

the ADA derived from and corresponds to the definition of

"handicap" under the Rehabilitation Act. Plaintiff offers that

under the Rehabilitation Act, in determining whether an

individual suffers from a handicap, a court must consider whether

"a particular impairment constitutes for the particular person a

significant barrier to employment." Plaintiff's Objection to

Defendant's Motion for Summary Judgment on Count I and Count III

at 9. Plaintiff also states that under the Rehabilitation Act,

10 the "handicap" inquiry is an individualized one; resolved via a

case-by-case determination. Perez v. Philadelphia Housing

Authority,

(E.D.Pa. 1987) (citing Forrisi v.

Brown,

(4th Cir. 1986)).

Plaintiff is correct in analogizing definitional aspects of

the ADA with those of the Rehabilitation Act. Irrefragably, the

Rehabilitation Act prevents discrimination which is based on a

"handicap," whereas the ADA prevents discrimination based on a

"disability." See Interpretive Guidance of Title I of the

Americans with Disabilities A c t , 29 C.F.R. p t . 1630 App. (1994).

With the substantial similarities between the ADA and the

Rehabilitation Act in mind, this court notes those provisions of

the Rehabilitation Act which state that in order to recover under

the Act, a plaintiff's impairment must be permanent in nature.

As stated in Paegle v. Department of Interior,

(D.D.C. 1993), "the [Rehabilitation] Act identifies a handicap as

a severe disability of a permanent nature." Emphasis added.

Further the regulations pertinent to the Rehabilitation Act

"define 'physical or mental impairment1 to include any of a

number of permanent, disabling conditions." I_d- (emphasis

added). Finally, in addressing the duration of a handicap, the

court in Paegle stated the following:

It is well established that the Act was never intended to extend to persons suffering from temporary

11 conditions or injuries. "In general, a temporary condition is not considered a handicap under the Rehabilitation Act." Visarraga v. Garrett, No. C-88- 2828, 1992 U.S.Dist. LEXIS 9164, at *13 (N.D.Cal. June 16, 1992) (holding that plaintiff's lower back strain- sprain was not a handicap under the Rehabilitation A c t ) . See also Evans v. Dallas,

(5th Cir. 1988) (plaintiff's knee injury which reguired surgery but did not constitute "impairment of a continuing nature" was not a handicap); Grimard v. Carlston,

(1st Cir. 1978) (fractured and dislocated ankle not a handicap); Saffer v. Town of Whitman, No. 85-4470,

, at *1 (D.Mass Dec. 2, 1986) (temporary condition such as pregnancy not a handicap).

Id. at 64-65.

In analyzing the cases decided under the ADA and the

Rehabilitation Act, this court is once again drawn to the

conclusion that plaintiff's condition does not constitute or

gualify as a disability under the ADA. Whether proceeding under

the ADA or the Rehabilitation Act, an essential aspect of a claim

under either reguires that a plaintiff's "disability" or

"handicap" be permanent in nature.

To recapitulate, in considering the plain wording of the

applicable statutes, the interpretive guidelines, and various

court decisions, this court opines that a temporary injury, such

as plaintiff's, cannot be the basis for a viable cause of action

under the Americans with Disabilities Act. Therefore, subject to

the plaintiff's failure to satisfy her burden of establishing a

disability, summary judgment, on Count 1 of plaintiff's

12 complaint, is appropriately granted in defendant's favor.

II. Civil Rights Act of 1991

Count III of plaintiff's complaint alleges violation, by

defendant, of rights afforded by the Civil Rights Act of 1991.

Defendant contends that because plaintiff is not entitled to

protection under the ADA, she cannot rightfully allege

intentional discrimination under the Civil Rights Act.

Therefore, according to defendant, summary judgment is

appropriate as to Count III of plaintiff's complaint.

The Civil Rights Act, codified at 42 U.S.C. 1981a, provides

that

[i]n an action brought by a complaining party under the powers, remedies, and procedures set forth in . . . the Civil Rights Act of 1964 . . . against a respondent who engaged in unlawful intentional discrimination . . ., or committed a violation . . . against an individual, the complaining party may recover compensatory and punitive damages . . . .

42 U.S.C. § 1981a(a)(2) (1995) (citations omitted).

Implicit in § 1981a is the reguisite that an action will not

exist under the Civil Rights Act absent a primary claim under

another substantive act. See 42 U.S.C. § 1981a (1995). After

all, section 1981a "is wholly dependant ... on other substan­

tive Acts" like the ADA or Rehabilitation Act. West v. Boeing

C o .,

(D.Kan. 1994). Section 1981a merely

13 expands the remedies available under substantive acts and should

only be regarded as an extension of and amendment thereto.

Yielding that Section 1981a is not intended to stand alone

as an independent cause of action and given that, in this case,

summary judgment with respect to Count I (alleged violation of

the Americans with Disabilities Act) of plaintiff's complaint has

been granted in defendant's favor, there remains in plaintiff's

action no substantive act, as reguired in § 1981a, which may form

the basis for unlawful intentional discrimination. Conseguently,

defendant's reguest for summary judgment, on Count III of

plaintiff's complaint, must likewise be granted.

CONCLUSION

For the aforementioned reasons, defendant's motion (document

no. 16) for summary judgment on Count I and Count III of

plaintiff's complaint is granted.

August 23, 1995

Martin F. Loughlin Senior Judge Heather M. Burns, Esg. Daniel Schwarz, Esg.

14