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Gilman v. Schwan's Home Service, Inc.: US District Court : EMPLOYMENT - ADA claims dismissed; plaintiff not disabled; only lost Department of Transportation certification, not ability

Brett H. Gilman,
Civil No. 07‐2048 (MJD/RLE)
Schwans Home Service, Inc.
Robert E. Kuderer and Stacey A. Molde, Johnson and Condon, P.A. for and
on behalf of Plaintiff.
James B. Sherman and Christine E. Hlavac, Wessels & Pautsch, P.C. for and
on behalf of Defendant.
This matter is before the Court on Defendant Schwans Home Service,
Inc.s (Schwans) motion for summary judgment.
I. Background
Plaintiff was employed by Schwans as a route manager from August 2004
until March 14, 2006. As a route manager, Plaintiff would sell and deliver food
products from Schwans depots to the customers homes. The qualifications for
this job required a high school degree or equivalent, one or more years of related
experience and the ability to effectively operate a commercial vehicle pursuant to
the Federal Department of Transportation (DOT) eligibility requirements,
including a drivers license and medical certification. There is no dispute that
when the Plaintiff was hired, he possessed these qualifications.
In February 2006, the Plaintiff was diagnosed with Type 1 diabetes. As a
result of this medical diagnoses, the Plaintiff was no longer certified to operate a
commercial vehicle under the DOT requirements. An exemption could be
obtained, but it is undisputed that such exemption could not be obtained
overnight. Plaintiff testified at his deposition that one of the requirements for the
exemption would be two months of blood sugar testing. Plaintiff Dep. p. 54.
Other paperwork had to be filled out as well, and the entire process could take
anywhere from three to six months ‐ there being no guarantee, however, that an
exemption would be granted. Id. p. 55.
For approximately two weeks, the Plaintiff was provided someone to drive
the truck for him. Jeff Wurtzberger, Plaintiffs supervisor, testified that providing
Plaintiff a driver was not a reasonable accommodation, so efforts were made to
find other positions for the Plaintiff within the company. Wurtzberger Dep. 21‐
22. Plaintiff was also told that once he became recertified, he could re‐apply for
the route manager position. Plaintiff Dep. p. 43‐44. Schwans asserts that
Plaintiff was offered a warehouse position at Schwans, but Plaintiff disputes
whether he was definitively offered any warehouse position. Plaintiff does not,
however, dispute that Wurtzberger talked with Plaintiff about looking at job
openings within the company, and that he was directed to the companys website
to look at current job openings. Id. p. 47 and 71.
Plaintiff admits that he never looked at the website, nor did he accept a
different position with the company, but claims that he did not have an
opportunity to do so because he was abruptly terminated. Id. p. 51. Schwans
asserts that he was terminated because he lost his DOT certification and because
he had not taken another job within the company.
Plaintiff filed a charge of disability discrimination with the Equal
Employment Opportunity Commission (EEO) on May 1, 2006, which was
cross‐filed with the Minnesota Department of Human Rights (MDHR). Both
the EEO and the MDHR issued notices of dismissal of Plaintiffs claims. The
MDHR notice was dated February 28, 2007. This action was thereafter filed on
April 25, 2007 ‐ exactly 90 days after the EEO dismissed the underlying charge
and 57 days after the MDHR issued its dismissal notice.
In the Complaint, Plaintiff alleges disability discrimination under the
Minnesota Human Rights Act (MHRA) (Count I) and the Americans with
Disabilities Act (ADA) (Count II). Plaintiff alleges that Schwans subjected him
to discrimination and harassment because of his disability and that Schwans
failed to reasonably accommodate his disability.
II. Standard
Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non‐moving party, there is no genuine issue as to any material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322‐23 (1986). The party seeking
summary judgment bears the burden of showing that there is no disputed issue
of material fact. Celotex, 477 U.S. at 323. This burden can be met by showing ‐
that is, pointing out to the district court ‐ that there is an absence of evidence to
support the nonmoving partys case. Id. at 325. The party opposing summary
judgment may not rest upon mere allegations or denials, but must set forth
specific facts showing that there is a genuine issue for trial. Krenik v. County of
Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).
III. Analysis
A. MHRA Claim ‐ Timeliness
Under the MHRA, a plaintiff may pursue his claims by either proceeding
directly to court, or to bring a claim before the MDHR. If the MDHR issues a
notice dismissing the charges, a plaintiff may file an action in court, as long as the
action is commenced within 45 days of receiving the notice. Minn. Stat.
363A.33, subd. 1(2). The statute further provides that a notice of dismissal is
presumed to have been received five days from the date of service by mail of the
written notice. Minn. Stat. 363A.33, subd. 1(3).
In this case, the MDHR issued a notice of dismissal dated February 28,
2007. Thus, Plaintiff had to have filed his Complaint within 45 days of March 5,
2007 ‐ or April 19, 2007. This action was not filed until April 25, 2007, however.
Plaintiff does not dispute that the notice of dismissal was addressed properly, but
argues only that Plaintiff cannot remember receiving the notice. Because Plaintiff
has not put forth any evidence that that circumstances beyond his control
prohibited him from serving his complaint within the statutory period,
Plaintiffs claim under the MHRA must be dismissed as untimely. Ochs v.
Streater, Inc., 568 N.W.2d 858, 860 (Minn. Ct. App. 1997).
B. Harassment Claim
In his Complaint, Plaintiff asserts that he was harassed due to his
disability. Complaint, 29. No evidence has been presented to support a
harassment claim, nor did Plaintiff submit any argument to support this claim in
his opposition brief. Accordingly, summary judgment as to the harassment claim
will be granted.
C. ADA Claim
Schwans also argues that it is entitled to summary judgment as to
Plaintiffs disability claim under the ADA, because Plaintiff cannot demonstrate
the existence of genuine issues of material fact that he is disabled, as defined by
the ADA or that he is qualified for the position of route manager with or without
reasonable accommodation.
The elements of a prima facie case of disability discrimination are: 1)
Plaintiff is disabled as defined by the ADA; 2) he is qualified to perform the
essential functions of the job, with or without reasonable accommodation; and 3)
he has suffered an adverse employment action due to his disability. Pittari v.
American Eagle Airlines, Inc., 468 F.3d 1056, 1061 (8th Cir. 2006).
Schwans argues that Plaintiff is not disabled as defined by the ADA,
which requires a showing of (A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (B)
a record of such an impairment; or (c) being regarded as having such an
impairment. Ristrom v. Asbestos Workers Local 34 Joint Apprentice
Committee, 370 F.3d 763, 768 (8th Cir. 2004). To prove he is substantially limited
in a major life activity, Plaintiff must show that he is unable to perform, or is
significantly restricted in performing, an activity that the average person in the
general population can perform. Ristrom, 370 F.3d at 769.
A determination of whether a plaintiff is disabled must be made with
reference to measures that mitigate an individuals impairment. Sutton v. United
Air Lines, Inc., 527 U.S. 471, 475 (1999). The Court in Sutton noted that if
measures to mitigate an impairment were not considered, all diabetics, for
example, would be considered disabled, because if they failed to monitor their
blood sugar levels and administer insulin, they would almost certainly be
substantially limited in one or more major life activities. A diabetic whose illness
does not impair his or her daily activities would therefore be considered disabled
simply because he or she has diabetes. Id. at 483. The Court emphasized that
the ADA requires persons to be treated as individuals, not as a member of a
group of people with similar impairments. Id. at 483‐484.
Schwans asserts that Plaintiff is not disabled as there are no genuine issues
of material fact that he is substantially limited in a major life activity. At his
deposition, Plaintiff testified that his diabetes only limited his ability to drive a
commercial vehicle. Plaintiff Dep. 79‐81. He testified that he suffered no
physical affects from his condition. Id.
Plaintiff argues that his diabetes has substantially limited him in the major
life activities of eating and work. In support, Plaintiff cites to medical references
defining the effects of diabetes on the body, and how a diabetic must monitor
food intake in order to maintain his blood sugars. Plaintiff further argues that
eating has been recognized by courts as a major life activity. One case cited,
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001), involved a plaintiff that
was a diabetic since birth, and whose diabetes caused other serious ailments,
such as high blood pressure, kidney problems and depression. As a result, the
plaintiff had been on disability for a number of years. Id. 245 F.3d at 919, n. 3.
Based on this plaintiffs individual medical issues, the court found that the
plaintiff was substantially limited in the major life activity of eating. Id. at 923.
Specifically, the record contained evidence that even with insulin, the plaintiffs
ability to regulate his blood sugars and metabolize his food is difficult, erratic
and substantially limited. Id.
Lawson is clearly distinguishable from the facts of this case. Here, Plaintiff
was recently diagnosed with diabetes, and he testified at his deposition that once
he was diagnosed, his condition turned around right away and that he was a
perfect diabetic technically. Plaintiff Dep. p. 80. There is no evidence in the
record to support a finding that Plaintiffs diabetes has substantially limited him
in the major life activity of eating.
Plaintiff further argues that his diabetes has substantially limited his ability
to work in a class of jobs ‐ namely commercial truck driving. In determining
whether an individual is substantially limited in the major life activity of
working, the Court must determine whether the individual is significantly
restricted in a class of jobs or a broad range of jobs, as compared to the average
person having comparable training, skills, and abilities. Fjellstad v. Pizza Hut of
America, Inc., 188 F.3d 944 (8th Cir. 1999).
The undisputed evidence demonstrates that Plaintiff only drove a
commercial truck for approximately one and one‐half years. His previous job
experiences include: golf caddie, an assembly line worker, deli worker, trolley
operator/warehouse worker, liquor store, warehouse order filler/forklift operator
and pipe fabricator/order sorter. Plaintiff Dep. p. 11‐17. Within months of his
termination, Plaintiff was hired by Excel Energy as a yard equipment operator.
Id. p. 63.
Based on this evidence, the Court finds that when properly monitored, the
Plaintiff is not substantially limited in the major life activity of working. Plaintiff
testified that he is not physically limited by his diabetes when that condition is
properly monitored. Id. p. 79‐81. Although DOT requirements prohibited him
from driving a commercial vehicle without an exemption, there is no evidence
that the diabetes itself interfered with his ability to drive. Plaintiff would thus be
qualified to work in any of his past positions, including warehouse worker or
forklift operator. Under these circumstances, the Court finds that the Plaintiff has
not demonstrated that he is substantially limited in performing a class of jobs or
broad range of jobs.
Alternatively, Plaintiff argues that he was regarded as disabled. The
Supreme Court has determined that a plaintiff can demonstrate that he is
regarded as disabled if he can show 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 have or that one has a substantially limiting
impairment when, in fact, the impairment is not so limiting.
Sutton, 527 U.S. at 489.
Schwans asserts that the Supreme Courts decision in Murphy v. United
Parcel Service, Inc., 527 U.S. 516 (1999) controls here. In Murphy, the plaintiff
worked for UPS as a mechanic. Part of his job duties required that he be DOT
certified to drive a commercial vehicle. The plaintiff was terminated from this
position when it was determined that the plaintiff did not meet the DOT
requirements for driving a commercial vehicle due to his high blood pressure.
The Court found that, assuming without deciding that the DOT requirements
were valid, the plaintiff had not demonstrated a genuine issue of material fact as
to whether he was regarded as disabled. The Court found that the plaintiff had,
in fact, been fired because his high blood pressure prevented him from obtaining
the proper DOT certification, not because of a mistaken misperception as to his
impairment. Id. 527 U.S. at 523‐524. The Court further found that, based on the
undisputed evidence that the plaintiff was generally employable as a mechanic,
and that he had performed mechanic jobs that did not require DOT certification
for over 22 years, together with the fact that the plaintiff secured another position
shortly after leaving UPS, the plaintiff had failed to show that he was regarded as
unable to perform a class of jobs. Id.
Plaintiff argues that Murphy is distinguishable because the plaintiff in that
case was a mechanic by trade, and was thus only disabled from the particular
mechanic job that also required DOT certification. In this case, however, Plaintiff
cannot use his commercial driving skills in any other commercial driving
Plaintiffs argument presumes that the route manager position involved
only driving a commercial vehicle and that Plaintiff was a commercial truck
driver by trade. Schwans asserts, and Plaintiff does not dispute, that the route
manager position involved selling and delivering frozen food and other products
to customers along a specified route. Thus, the route manager is a sales position
in addition to a delivery position, and no evidence has been submitted to show
that his diabetes prevented him from performing his duties as a salesperson.
Like the plaintiff in Murphy, the evidence in this case shows that the loss of
his DOT certification prevented the Plaintiff from performing only a particular
job, not a class of jobs or a broad range of jobs. Accordingly, the Court finds that
summary judgment in favor of Schwans on the ADA claim is appropriate.
IT IS HEREBY ORDERED that Defendant Schwans Home Services, Inc.s
Motion for Summary Judgment [Doc. No. 25] is GRANTED. This matter is
hereby dismissed with prejudice. Defendant Schwans Home Services, Inc.s
Motion to Strike [Doc. No. 42] is DENIED as moot.
Date: July 6, 2008
s / Michael J. Davis
Michael J. Davis, Chief Judge
United States District Court


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