Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01295-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION No. 1:04-cv-01295-LTB-CBS BETTY GALLEGOS, BERTHA PACHECO, LAURA REYES, MANUELA ARRAS, DAVID ZUBIA, ANTONIO MEZA, JESUS ARENIVAR, ALBA BARRIOS, GLORIA CAMPOS, REYNEL CARMONA, SILVIA CRUZ, JESUS ESTRADA, MARIA ISABEL FLORES, JORGE MARTINEZ, MARIA MCREYNOLD, IGNACIO RANGEL, JUANA ROSALES, MARIA TOVAR, ANTELMO ZUNUN, MARIA ALVA, PETRONA COREAS, MARIA ESTEVEZ, ALFREDO PINEDA, CARMEN LUNA, PATTY LEHMKUHL & LUIS OCHOA Plaintiffs V. SWIFT & COMPANY, Defendant.

PLAINTIFF JUANA ROSALES' BRIEF IN SUPPORT OF HER OBJECTION TO MOTION FOR SUMMARY JUDGMENT COMES NOW PLAINTIFF, JUANA ROSALES, by and through counsel, THE MORRELL LAW OFFICE, LLC, and respectfully requests this Court to DENY Defendant's Motion for Summary Judgment and as grounds states as follows: I. STATEMENT AS TO UNDISPUTED FACTS Employment History 1. Swift hired Ms. Rosales on April 22, 1997. (Rosales Ex. 2:1-2) 2. Ms. Rosales performed the Sort Rope Meat position from August 21, 2000 to

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October 3, 2003. (Rosales Ex. 2:1) 3. Swift placed Ms. Rosales on forced medical leave of absence on October 3, 2003 (Rosales Ex. 2:6) 4. Swift did not accommodate Ms. Rosales for a year and a half until April 11, 2005. (Rosales Ex. 2:4) Record of Disability

5. Ms. Rosales sustained an on-the job injury on January 24, 2000. As a result, Ms. Rosales now suffers from bilateral carpal tunnel syndrome, muscular pain in the right shoulder girdle, and hypothyroidism. (Rosales Ex. 1:1-2) 6. Dr. Wunder placed Ms. Rosales at maximum medical improvement on May 18, 2001 and July 3, 2002. At both times, Dr. Wunder assigned Ms. Rosales permanent restrictions consisting of maximum five pounds lift, push, pull for both hands (Rosales Ex. 1:1-2, 8-9) Regarded as Disabled 7. Swift regarded Ms. Rosales as having restrictions consisting of maximum five pounds lift, push, and pull with both hands and no above chest level work. (Rosales Ex. 2:6) 8. Ms. Rosales did not have any permanent physical restrictions against above chest level work. (Rosales Ex. 1:2, 9)

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Limitations 9. Ms. Rosales is unable to put away her groceries. (Rosales Dep. 27:1-2). 10. Ms. Rosales is only able to lift her baby with pain. (Rosales Dep. 27:19-20). 11. Ms. Rosales has trouble lifting in daily life. (Rosales Dep. 28:10-15). 12. Ms. Rosales has pain when she lifts a gallon of milk. (Rosales Dep. 29:1213). 13. Ms. Rosales cannot lift her nine-year old child. (Rosales Dep. 29:14-15). 14. Ms. Rosales cannot lift her hands above her head for a prolonged period of time as they begin to hurt and go numb. (Rosales Dep.32: 1-2). 15. Ms. Rosales has problems dressing and undressing. (Rosales Dep. 24:22-25, 25:1-8 ) 16.Ms. Rosales' 5-pound lifting restriction places her in the "bottom 25th percentile" compared to other females her age in terms of the activity of lifting. (Rosales Ex. 3) 17. A perceived no above chest work restriction would significantly limit her to the "bottom 25th percentile" as compared to other females her age. (Rosales Ex. 3) 18. Juana Rosales lost all access to the very heavy, heavy, and medium classes of jobs. When taking into account Swift's misperception of her restrictions, Ms. Rosales does not have access to jobs in the light category and would not -3-

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have total access to jobs in the sedentary category. (Rosales Ex. 4) 19.She is unable to work in the majority of jobs in the national economy. (Rosales Ex. 4) 20. Further Ms. Rosales can no longer obtain work in industries and types of employment she once performed or could have performed with her experience and education due to her restrictions. These types of

employment are in the Agriculture and Agriculture Services, Food Service, Food Preparation, Janitorial, Housekeeping, Dairy Products Industry, Laundry Industry, Manufacturing Industry, Assembly, Landscaping, and Production. (Affidavit)

II.

ARGUMENT

To establish a prima facie case under the ADA, Ms. Rosales must show: (1) she is disabled within the meaning of the ADA; (2) she is qualified, that is, with our without reasonable accommodation (which she must describe), she is able to perform the essential functions of the job; and (3) that she suffered an adverse employment decision because of her disability. White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). Swift & Company disputes only the first prong of the prima facie case in its Motion for Summary Judgment therefore it appears Swift C.

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Juana Rosales has (and Swift regards her as having) physical impairments (Fact 5) that substantially limit her in three major life activities. Ms. Rosales satisfies her burden even if the court finds that her impairments substantially limit just one major life activity. 42 U.S.C. 12102(2); See also Sutton v. United Airlines, 527 U.S. 471 (1999)

A.

THE MAJOR LIFE ACTIVITY OF LIFTING Juana Rosales's undisputed lifting restrictions of not lifting more than 5-

pounds (Fact 6,7) is substantially limiting on its face sufficient to withstand a Motion for Summary Judgment without need to provide comparative evidence. For this reason alone, Swift's Motion should be denied. Lowe v. Angelo's Italian Foods, Inc. 87 F.3d 1170, 1174 (10th Cir. 1996) (a fifteen-pound or less restriction constitutes a substantial limitation on its face of the major life activity of lifting). Where Ms. Rosales' restriction is less than that of the plaintiff in Lowe, it follows that her lifting restriction is substantially limiting on its face. See e.g. Castaneda v. Otero School District R-1, 2005 WL 3280240 (D.Colo. 2005).

Swift makes few references to applicable 10th Circuit authority, and, curiously, scrupulously avoids any mention of Lowe. The only two 10th Circuit cases cited by Swift with respect to the major life activity of lifting are inapplicable to -5-

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Ms. Rosales' claim.

In both cases the Court granted summary judgment for

defendants because the plaintiffs (whose restrictions were not substantially limiting on its face pursuant to Lowe) provided no comparative evidence how their restrictions compared with the average person. See McCoy v. USF Dugan, Inc., 42 Fed. Appx. 295, 297 (10th Cir. 2002); Gibbs v. St. Anthony Hosp. 107 F.3d 20 (10th Cir. 1997). In contrast, Ms. Rosales' restrictions are less then the plaintiffs in McCoy and Gibbs and Rosales has produced, even though not required, comparative evidence.

In all other cases outside the 10th Circuit cited by Swift, the plaintiff whose particular lifting restriction was not substantially limiting on its face in his or her respective Circuit also failed, unlike Ms. Rosales, to present comparative evidence how his or her restriction compared with the average person. See Brunko v. Mercy Hosp., 260 F.3d 939, 941 (8th Cir. 2001); Mellon v. Federal Express Corp., 239 F.3d 954, 957 (8th Cir. 2001); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir. 1995); Scheerer v. Potter, No. 05-2338, 2006 WL 905937, at (7th Cir. April 10, 2006); Carr v. Publix Super Markets, Inc., No. 3:03-CV-118 (CDL), 2005 WL 1073253, at *7(11th Cir. 2006); Gordon v. MCG Health, Inc., 301 F. Supp. 2d 1333, 1340-41 (S.D. Ga. 2003); Marinelli v. City of Erie, 216 F.3d 354, 364 (3rd

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Cir. 2000); Pryor v. Trane Co., 138 F.3d 1024, 1027 (5th Cir. 1998); McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir. 1997).

The facts in Albertson's, Inc. v Kirkingburg, 527 US 555, 567 (1999) do not apply to this claim. Kirkingburg merely provided evidence that he had a diagnosis, a physical impairment, without providing evidence of his restrictions. The Court was unwilling to declare his impairment/diagnosis a per se substantial limitation without evidence of restrictions. Ms. Rosales has provided that her physical impairments have resulted in permanent restrictions of not lifting over five pounds. (Fact 6).

Ms. Rosales is significantly restricted in the major life activity of lifting compared to 75% of females her age as a result of her permanent restrictions. (Fact 17). Although comparative evidence is not required when the limitation is, as here, substantially limiting "on its face", (Rusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240 (10th Cir. 2001)), Ms. Rosales has produced evidence that the 5pound lifting restriction places her to the "bottom 25th percentile" compared to other females her age in terms of the activity of lifting. (Fact 16).

Viewing this evidence in the light most favorable to Ms. Rosales, resolving

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all doubts in favor of a tribal issue, a reasonable jury could find in favor of plaintiff. Defendant's motion should therefore be denied.

B.

THE MAJOR LIFE ACTIVITY OF REACHING

Individuals who are erroneously "regarded as" having a disability are also "disabled" within the meaning of the ADA. See 42 U.S.C. 12102(2)(c)); See also Thalos v. Dillon Companies, Inc. 86 F.Supp 2d 1079 (D.Colo 2000). Swift claims that Ms. Rosales' "only restriction was that she could not work above chest level". (Fact 7) In fact, this restriction is not included in her permanent restrictions. Swift regards Ms. Rosales as having restrictions that are greater than supported by medical documents. (Fact 7,8)

Although the plant physician did not assign Ms. Rosales restrictions which included `no above chest level work' Ms. Rosales is limited in activities that are of central importance to most people's daily lives. (Rosales Deposition pp. 27-32) In her deposition, Ms. Rosales testified that she had problems dressing and undressing. See Rosales Dep. 24:22-25, 25:1-8 Ms. Rosales testified that

dressing causes her much pain and un/dressing the `top half' is much more painful and slow than the bottom half. (Id.)

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A perceived no above chest work restriction would significantly limit her to the "bottom 25th percentile" as compared to other females her age. (Fact 17).

C. THE MAJOR LIFE ACTIVITY OF WORKING

Ms. Rosales' permanent restrictions preclude her from a broad range and class of jobs and substantially limit Ms. Rosales in the major life activity of working. As evidence, Ms. Rosales presents the following evidence: · Juana Rosales lost all access to the very heavy, heavy, and medium classes of jobs. When taking into account Swift's misperception of her restrictions, Ms. Rosales does not have access to jobs in the light category and would not have total access to jobs in the sedentary category. She is unable to work in the majority of jobs in the national economy. (Fact 18,19)

·

Further Ms. Rosales can no longer obtain work in industries and types of employment she once performed or could have performed with her experience and education due to her restrictions. These types of

employment are in the Agriculture and Agriculture Services, Food Service, Food Preparation, Janitorial, Housekeeping, Dairy Products Industry, Laundry Industry, Manufacturing Industry, Assembly, Landscaping, and -9-

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Production. (Fact 20)

Indulging all favorable inferences, this evidence could persuade a reasonable jury that Ms. Rosales is precluded from working in a broad range and class CONCLUSION & PRAYER FOR RELIEF

Because a reasonable jury could find that Plaintiff is limited in at least one of two life activities ­ lifting, reaching or working­ a genuine dispute exists as to the material issue of whether Plaintiff is disabled. WHEREFORE Plaintiff respectfully requests this Court to DENY Defendant's Motion for Summary Judgment. Respectfully submitted this 4th of May 2006. THE MORRELL LAW OFFICE, LLC s/ Britton Morrell Britton Morrell THE MORRELL LAW OFFICE, LLC 1305 8th Street Greeley, CO 80631 Tel. (970) 356-9898 Fax. (970) 356-9899 [email protected] Attorney for Plaintiff

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PLAINTIFF'S BRIEF IN SUPPORT OF OBJECTION TO MOTION FOR SUMMARY JUDGMENT CIVIL ACTION No. 1:04-cv-01295-LTB-CBS

CERTIFICATE OF SERVICE I hereby certify that on the 4th of May, 2006 I electronically filed a true and correct copy of PLAINTIFF'S BRIEF IN SUPPORT OF OBJECTION TO MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following via email: W.V. Bernie Siebert, Esq. SHERMAN & HOWARD LLC 633 17th Street, Ste. 3000 Denver, Colorado 80202 S/ Britton Morrell

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