Lessard v. Osram CV-96-309-JD 08/24/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steven W. Lessard

v. Civil No. 96-309-JD

Osram Svlvania, Inc.

O R D E R

The plaintiff, Steven W. Lessard, a veteran with a service-

related injury, brought this action against the defendant, Osram

Sylvania, Inc. ("OSI"), under the Americans with Disabilities Act

("ADA"),

, 12201-12213 (1995). Lessard

contends that OSI discharged him based on a perceived disability.

Before the court is OSI's motion for summary judgment on

liability and damages (document no. 32).

Background1

Lessard was wounded during the Vietnam War. He is visibly

scarred and has pain and numbness in his left hand. This case

arises from those injuries.

In December 1994, Lessard was hired by Kelly Services, Inc.

("Kelly Services"), a firm with a contract to provide OSI with

temporary workers for a plant in Manchester, New Hampshire. At

1The facts related herein are not in dispute. that time, OSI was experiencing an increased demand for its

products and was establishing a new shift in a production line

known as the Mount Department. OSI was using Kelly Services

workers to provide help within the plant. Lessard already had a

full-time job when he signed up with Kelly Services; he hoped to

land a second job with OSI to obtain benefits. Lessard was

assigned to OSI by Kelly Services.

Lessard's first day at OSI was December 19, 1994, in the

midst of the plant's holiday shutdown, when OSI's human resources

personnel and company doctor were not in the plant. Lessard and

the other Kelly Services workers attended an orientation and

training program at the OSI plant during the shutdown.

On Lessard's third day of training, the temporary workers

attended a lecture on recognizing and avoiding the risks of

repetitive motion injuries. The Mount Department, in particular,

had a history of such injuries. After the talk, Lessard asked

the lecturer about the risk of a long-term Mount Department

position damaging his left hand because of his old injury.

Lessard's supervisor learned of Lessard's discussion with

the lecturer and directed him to the company nurse. The nurse

noticed Lessard's scars. Lessard told her that he had been

wounded in Vietnam and described his current symptoms of pain in

his hand.

2 The nurse advised Lessard to stop participating in the

orientation and training and told him to contact human resources

after the holiday shutdown. Lessard's supervisor thereafter

escorted him out of the plant and seized his security badge.

The following week, Lessard called Kelly Services to report

that OSI's nurse felt that he should do something other than

mounting. Kelly Services first checked with OSI, then called

Lessard back to let him know that the assignment with OSI was

over because OSI had no non-repetitive work. Lessard never

worked for Kelly Services or OSI after the three days in December

1994 .

Lessard filed an administrative complaint and received a

notice of a right to sue from the United States Department of

Labor. Thereafter, Lessard filed a complaint against OSI under

the ADA, based on his allegation that OSI terminated him because

of a perceived disability. Lessard seeks compensatory damages

including pain and suffering, punitive damages, reinstatement or

lost future wages, and his attorneys' fees and costs.

OSI filed a motion for summary judgment on liability and

damages. Lessard opposes the motion on the ground that there are

allegedly genuine, material factual issues that preclude summary

judgment.

3 Discussion

Summary judgment is appropriate when material facts are

undisputed and the moving party is entitled to judgment as a

matter of law. See Rodriquez-Garcia v. Davila,

(1st Cir. 1990) (citing Fed. R. Civ. P. 56(c)). The burden is on

the moving party to establish the lack of a genuine, material

factual issue, see Finn v. Consolidated Rail Corp.,

(1st Cir. 1986), and the court must view the record in the

light most favorable to the nonmovant, according the nonmovant

all beneficial inferences discernable from the evidence. See

Caouto v. Boston Edison Co.,

(1st Cir. 1991).

Once the movant has made a properly supported motion, however,

the adverse party "must set forth specific facts showing that

there is a genuine issue for trial." Anderson v. Liberty Lobby,

Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)).

To obtain relief under the ADA, an employee alleging a

discriminatory discharge must establish, among other things, that

he or she was disabled within the meaning of the ADA, and that he

or she was able to perform the essential functions of the job,

with or without reasonable accommodation. See Katz v. City Metal

C o .,

(1st Cir. 1996) . Lessard has eschewed making

a claim on the basis of an actual, disabling physical impairment.

4 or on the lack of a reasonable accommodation.2 Lessard maintains

that he could do mounting work without any accommodation, but

that OSI fired him because it regarded him as disabled. The

corresponding basis for OSI's summary judgment motion is that

there is no evidence that OSI regarded Lessard as disabled with

respect to working.

Proof of discrimination prohibited by the ADA can include a

showing that the employer regarded the employee as having a

physical impairment amounting to a disability. See Katz,

. A disability is defined in the ADA 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) (A)-(C) (1995). Thus, not every physical

impairment is a disability under the ADA. The definition applies

only to impairments substantially limiting "major life

activities," such as "caring for oneself, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning,

and working."

(i). See Katz,

.

2Paragraph 10 of the complaint states: "The plaintiff does not allege that he reguested an accommodation, nor that he should have been provided a reasonable accommodation."

5 Lessard asserts that OSI believed he was disabled with

respect to the major life activity of working. Under the ADA, an

employee seeking to show that he or she was disabled with respect

to "working" must show that the impairment significantly

restricted his or her ability to perform either a "'class of

jobs,'" or a "'broad range of jobs in various classes.'" Nedder

v . Rivier Coll., 944 F. Supp. Ill, 117 (D.N.H. 1996) (guoting

(j)(3)(i)). Factors relevant to the inguiry

include: the number and types of jobs within the reasonably

accessible job market utilizing similar skills, knowledge, and

training from which the impairment would disgualify the employee

(bearing on the "class of jobs" component); and the number and

types of jobs within the same market not using similar knowledge,

skills, and training from which the impairment would also

disgualify the employee (bearing on the "broad range" component).

See

(j)(3)(ii)(A)- (C).

Lessard points to the deposition testimony of several

witnesses, including himself, in an effort to show that OSI

treated him as having an impairment that substantially limited

his ability to perform repetitive motion work with his hands.

The court has examined the cited testimony and concludes that

each witness other than Lessard testified solely as to mounting

line jobs. Mounting line work is a specific job, not a class or

6 range of jobs. "The inability to perform a single, particular

job does not constitute a substantial limitation in the major

life activity of working."

(j) (3) (i). Accord

Nedder, 944 F. Supp. at 117; see also Lowry, 973 F. Supp. at 81

("impairments that affect a person's ability to perform a narrow

range of jobs are not considered 'substantially limiting'"

(citation omitted)). The testimony cited by Lessard therefore

fails to present a genuine, material factual issue sufficient to

defeat OSI's summary judgment motion.

Lessard's citation to his own testimony similarly fails to

raise a genuine, material factual issue. The cited portion

regards his conversation with the company nurse, Janice Kelley,

who told him to stop participating in the orientation and

training. According to Lessard, the nurse told him the

following: "I don't think you will be able to do the work here,

there's no other kind of work for you." Deposition of Steven W.

Lessard at 44 (Mar. 18, 1997) ("Lessard Deposition"). When

Lessard asked why, the nurse answered, "because of your hand."3

3Lessard does not suggest that the nurse believed he was unfit to perform jobs other than repetitive motion jobs at OSI reguiring hand use. Indeed, Nurse Kelley testified in her deposition that she told Lessard she felt he should not do the "mounting task" presently. After he asked her about other jobs in the plant, she mentioned that "a number of our jobs in the production area are repetitive motion with utilization of the hands, and that he'd need to follow up with [human resources]

7 Id.

According to Lessard, the nurse's remarks reflected a

perception that he could not perform a broad range of repetitive

motion jobs, including assembly line work (regardless of the

product), and potentially including painting, food service, and

construction, as well. A principal problem with his argument,

however, is that the nurse limited her remarks to jobs "here" at

OSI. Lessard points to no evidence that indicates that a broad

range of repetitive motion jobs was available at OSI. There is

thus no evidence from which a reasonable jury could infer that

the nurse's statements reflected any belief regarding a broad

range of such jobs. Furthermore, Lessard offered no evidence -

such as the testimony of a vocational expert - on the number and

type of jobs in the local job market from which he would have

been disgualified if the alleged perception of his impairment

were true. O f . Partlow v. Runyon,

(D.N.H.

1993) (plaintiff's claim of disgualification from large part of

local job market was speculative because no evidence was provided

to support it). Lessard has therefore failed to defeat OSI's

summary judgment motion on that basis.

Lessard also suggests that OSI believed that he was limited

regarding jobs." Deposition of Janice T. Kelley at 17 (Mar. 28, 1997) .

8 in his ability to perform manufacturing assembly line work

involving repetitive hand motion, allegedly a class of jobs. In

general, assembly line work may constitute a class of jobs. See

Lowry, 973 F. Supp. at 82. Moreover, an impairment precluding

performance of virtually any repetitive motion jobs (including

virtually any assembly line jobs reguiring such motion) may

constitute a disability with respect to a class of jobs. See

DePaoli v. Abbott Labs.,

(7th Cir. 1998).

Manufacturing assembly line work involving repetitive hand

motion, however, is a subclassification of such work. See McKay

v. Toyota Motor Mfg., U.S.A., Inc.,

(6th Cir.

1997) (impairment precluding performance of assembly line jobs

reguiring repetitive motion or freguent lifting of more than ten

pounds disgualified employee from only "narrow range" of jobs).

Accordingly, proof that OSI held a belief with respect to such a

subclassification of work is insufficient to defeat OSI's summary

judgment motion.

Lessard's final argument is that he was regarded as having a

disabling impairment because impermissible attitudinal barriers

resulted in his termination. The EEOC interpretive guidelines on

the ADA, with respect to the statutory term, "[b]eing regarded as

having such impairment,"

(2)(C) (1985), state

that "if an individual can show that an employer . . . made an employment decision because of a perception of disability based

on "myth, fear or stereotype," the individual will satisfy the

"regarded as" part of the definition of disability. 29 C.F.R.

P t . 1630, A p p . § 1630.2(1) (emphasis added). See generally

Grenier v. Cvanamid Plastics, Inc.,

(1st Cir.

1995) (EEOC's interpretive guidelines, while not controlling,

provide guidance to courts in construing ADA terms). The

interpretive guidelines further note that "attitudinal barriers"

to employment may include "safety, insurance, liability,

attendance, cost of accommodation and accessibility, [and]

workers' compensation costs." Lessard asserts that such

attitudes motivated OSI to discharge him.

While there is no evidence that common attitudes about scars

factored into OSI's action, there is evidence suggesting that

Lessard's supervisor considered such factors as cumulative-trauma

or carpal-tunnel injury costs, medical bills, and safety concerns

prior to escorting Lessard out the door. It is also undisputed,

however, that Lessard's supervisor had such concerns only in

connection with Lessard's risk of re-injury on the mounting line,

a specific job that involves stressful repetitive motions and has

caused employee injuries in the past. Since those concerns

related only to mounting work, a particular job, and there is no

evidence suggesting that such attitudes related to Lessard's

10 ability to perform any other job, there is no evidence that such

attitudes were the basis of a "perception of a disability," 29

C.F.R. P t . 1630, App. § 1630.2(1). Each part of the definition

of disability in the ADA requires evidence of an impairment or a

perceived impairment having a significant impact on one's major

life activities. See

(2) (A)-(C) (1995). In

short, there is no proof that Lessard's major life activities

were substantially limited as a result of such attitudes.

Lessard cites Cook v. Rhode Island Department of Mental

Health, Retardation, & Hospitals,

(1st Cir. 1993), as

precedent, but that case is distinguishable. In Cook, the

employer did not re-hire plaintiff, a former employee, on the

ground of her morbid obesity. The employer's rationale was that,

because of her obesity, she would be unable to evacuate patients

in an emergency and was at risk of developing serious ailments.

Such ailments, according to the employer, would lead to

absenteeism and increased worker's compensation costs. See

. The plaintiff prevailed in her claim that the

employer regarded her as disabled.

The First Circuit affirmed. The court characterized the

employer's rationale in Cook as "evinc[ing] that the employer

treats a particular condition as a disqualifier for a wide range

of employment opportunities."

. The court further

11 described the rationale as "generalizations regarding an obese

person's capabilities," comprising "a graphic illustration of an

employment decision based on stereotyping."

. As to

the concerns regarding worker's compensation and absenteeism, the

court stated that such concerns are prohibited bases for denying

employment. Employers must "bear absenteeism and other

miscellaneous burdens involved in making reasonable

accommodations in order to permit the employment of disabled

persons."

In this case, however, there is no evidence suggesting that

the supervisor's attitudes related to Lessard's fitness for a

wide range of positions. The key distinction is that the

attitudes at issue related to Lessard's fitness for a particular

job, while the rationale in Cook included stereotypes that would

have disgualified her from many, varied jobs. Therefore, since

Lessard points to no evidence that OSI regarded him as disabled

with respect to working, in general, or with respect to any other

major life activity, see

(2) (1995), judgment

shall be entered as a matter of law on Lessard's ADA claim. See

Fed. R. Civ. P. 56.

12 Conclusion

For the reasons stated above, OSI's motion for summary

judgment (document no. 32) is granted. The clerk is ordered to

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

August 24, 1998

cc: Joni N. Esperian, Esguire Steven E. Hengen, Esguire

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