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 DAVID ZUBIA'S BRIEF IN SUPPORT OF HIS OBJECTION TO MOTION FOR SUMMARY JUDGMENT

COMES NOW PLAINTIFF, DAVID ZUBIA, 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:

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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

I.

STATEMENT AS TO UNDISPUTED FACTS Employment History

1.

Mr. Zubia began working at the Plant on February 2, 1996 (Swift Undisputed Fact No. 1)

2.

On March 31, 2003 Swift forced Mr. Zubia on medical leave of absence due to his permanent restrictions. (Zubia Ex. 2:3)

3.

Mr. Zubia performed his position within his permanent medical restrictions and with no pain. (Zubia Depo. 1-15:23-17:4)

4.

Swift did not accommodate Mr. Zubia until 22 months had passed since the layoff on January 25, 2005. (Zubia Ex. 2:2) Medical History

5.

Mr. Zubia suffered an on-the-job injury April 8, 1997 to his lower back. He treated with Plant Physician Dr. Shih who placed him at Maximum Medical Improvement on July 17, 1997. (Zubia Ex. 1:3).

6.

Mr. Zubia suffered an on-the-job injury February 2, 1999 to his right shoulder resulting in a diagnosis of chronic right shoulder tendonitis impingement. He treated with Plant Physician Dr. Wunder who placed him at Maximum Medical Improvement on June 16, 2000. (Zubia Ex. 1:1).

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Record of Disability 7. As a result of April 8, 1997 injury Plant Physician Dr. Shih assigned Mr. Zubia permanent restrictions on July 17, 1997 of no repetitive bend / twist, 10-pounds maximum lift or pull, no knife, no twisting with flexion at the waist for prolonged periods of time. (Zubia Ex. 1:3) 8. As a result of the right shoulder injury, Dr. Wunder assigned Mr. Zubia permanent restrictions on June 16, 2000 of maximum ten pounds lift, push, and pull right arm, occasional reaching and no use above shoulder. (Zubia Ex. 1:1). 9. Mr. Zubia testified at his deposition that his restrictions affected not just his right arm but also his lower back. (Zubia Depo. 14:4-6; 18:18 ­ 19:7) Regarded as Disability 10. On March 31, 2003 Swift placed Mr. Zubia on involuntary medical leave of absence due to his permanent restrictions of 10 pounds weight limit, no above shoulder work, no 50/50 belt, no repetitive bend, no bend/twist, no knife, no twist with flexion at waist for prolonged periods. (Ex 2:3). 11. Swift did not limit Mr. Zubia "no overhead shoulder work" to the right arm. (Zubia Ex 2:3)

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12.

When Swift believed an injured worker's restriction was limited to only one arm ­ Swift expressly stated its understanding. (Zubia Ex. 5:1-5) Limitations

13.

Mr. Zubia's restriction of 10-pounds places him in the lower 25th percentile for men his age. (Zubia Ex. 3)

14.

A no use of the arm above the shoulder restriction significantly limits Mr. Zubia to the bottom 25th percentile for men his age. (Zubia Ex. 3)

15.

Mr. Zubia is relegated to the light category of work. Within the light category of work he does not retain full access to jobs as he can only occasionally reach with his right arm. Gail Pickett, MA, QRC, ABDA (Exhibit 4).

16.

Further, Mr. Zubia can no longer obtain work in industries and types of employment he once performed or could have performed with his experience and education due to his restrictions. These types of

employment are in the Agriculture and Agriculture Services, Building material Industry, Concrete Products Industry, Construction Industry, Dairy Products Industry, Food Preparation, Hotel and Restaurant Industry, Laundry Industry, Manufacturing Industry, Landscaping, and Woodworking. (Zubia Affidavit) 17. Mr. Zubia cannot lift his five-year-old boy. He cannot give him a piggyback ride. (Zubia Depo. 38:7-16) 4

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18. 19.

Mr. Zubia cannot lift a vacuum cleaner. (Zubia Depo. 39:7-8) Mr. Zubia cannot lift a chair. (Zubia Depo. 39:11-15)

III.

ARGUMENT

To establish a prima facie case under the ADA, Mr. Zubia must show: (1) he is disabled within the meaning of the ADA; (2) he is qualified, that is, with our without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that he suffered an adverse employment decision because of his 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.

David Zubia has (and Swift regards him as having) physical impairments that substantially limit him in three major life activities. Mr. Zubia satisfies his burden even if the court finds that his 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 Mr. Zubia's ten-pound lifting restriction 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. 5

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Lowe v. Angelo's Italian Foods, Inc. 87 F.3d 1170, 1174 (10th Cir. 1996) (a fifteenpound or less restriction constitutes a substantial limitation on its face of the major life activity of lifting). Where Mr. Zubia's restriction is less than that of the plaintiff in Lowe, it follows that his 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 Mr. Zubia's 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, Mr. Zubia's restrictions are less then the plaintiffs in McCoy and Gibbs and Mr. Zubia 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 Mr. Zubia, to present comparative evidence 6

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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 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. Mr. Zubia has provided that his physical impairments have resulted in permanent restrictions of not lifting over ten pounds. (Fact 7, 8).

Mr. Zubia is significantly restricted in the major life activity of lifting compared to 75% of males his age as a result of his permanent restrictions. (Fact 7

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14). 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)), Mr. Zubia has produced evidence that the 10-pound lifting restriction places him to the "bottom 25th percentile" compared to other males his age in terms of the activity of lifting. (Fact 14).

Viewing this evidence in the light most favorable to Mr. Zubia, resolving all doubts in favor of a triable issue, a reasonable jury could find in favor of plaintiff. Defendant's motion should therefore be denied. B. THE MAJOR LIFE ACTIVITY OF REACHING David Zubia's restriction of no use of the arm above the shoulder constitutes a substantial limitation in the major life activity of reaching. Reaching is a recognized major life activity. See Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1228, 1231-32 (10th Cir. 1999); Doyal v. Oklahoma Heart, Inc., 213 F. 3d 492, 495-96 (10th Cir. 2000). A no use of the arm above the shoulder restriction significantly limits Mr. Zubia to the bottom 25th percentile for men his age. (Fact 14)

The fact that Mr. Zubia can brush his teeth, comb his hair, and drive to work does not eliminate the fact that Swift regarded his as being unable to reach above

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the shoulder level. With exception of combing his hair, none of the listed activities require reaching overhead.

While it is correct that Mr. Zubia does not have a reaching restriction on his left arm, Swift regarded the restriction as affecting both arms. When listing the restriction, Swift fails to specify that it considers the restrictions as affecting only one extremity. (Fact 12). C. THE MAJOR LIFE ACTIVITY OF WORKING

Mr. Zubia's permanent restrictions preclude him from a broad range and class of jobs and substantially limit Mr. Zubia in the major life activity of working. As evidence, Mr. Zubia presents the following evidence:

·

Mr. Zubia has lost access to the very heavy, heavy and medium categories of work. He is relegated to the light category of work. Within the light category of work he does not retain full access to jobs as he can only occasionally reach with his right arm. (Fact 15)

·

Within the light category of work he does not retain full access to jobs as he can only occasionally reach with his right arm. (Fact 15)

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·

Further, Mr. Zubia can no longer obtain work in industries and types of employment he once performed or could have performed with his experience and education due to his restrictions. These types of

employment are in the Agriculture and Agriculture Services, Building material Industry, Concrete Products Industry, Construction Industry, Dairy Products Industry, Food Preparation, Hotel and Restaurant Industry, Laundry Industry, Manufacturing Industry, Landscaping, and Woodworking. (Fact 16)

Indulging all favorable inferences, this evidence could persuade a reasonable jury that Mr. Zubia is precluded from working in a broad range and class of jobs.

CONCLUSION & PRAYER FOR RELIEF

Because a reasonable jury could find that Plaintiff is limited in at least one of two life activities ­ lifting and 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.

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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

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 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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