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 CARMEN LUNA'S BRIEF IN SUPPORT OF HER OBJECTION TO MOTION FOR SUMMARY JUDGMENT

COMES NOW PLAINTIFF, CARMEN LUNA, 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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I.

STATEMENT AS TO UNDISPUTED FACTS Employment History

1. 2.

Carmen Luna was employed by Swift on July 26, 1993. (Luna Ex. 2:1) Swift forced Ms. Luna on medical leave of absence due to her permanent restrictions. (Luna Ex. 2:5)

3.

Swift terminated Ms. Luna on November 2, 2005. (Luna Ex. 2:2) Record of Disability

4.

As a result of her 4/18/00 neck and left shoulder injury, Swift's company doctor, Dr. Wunder, on 5/16/01 assigned permanent restrictions of maximum lifting, pushing, pulling 10 pounds with her left arm. No above shoulder work. (Luna Ex. 1:2)

5.

As a result of her 4/29/00 low back injury, Swift's company doctor, Dr/ Wunder, on 5/21/01, assigned restrictions of max lifting pushing pulling 15 lbs, occasional bend/twist and stairs. (Luna Ex. 1:1; Depo-01 7:5-11, 8:5-10) Regarded as Disabled

6.

On 3/9/2004, Swift placed Ms. Luna on involuntary medical leave due to her permanent restrictions of lift, push, or pull only fifteen pounds (limit ten with left arm) with a limit of occasional bending, twisting, and stairs as well as no above the shoulder work. (Luna Ex. 2:5)

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7.

In a letter to Ms. Luna, Swift assured that her life insurance could be continued "throughout the length of her disability." (Luna Ex. 2:4) Limitations

8. 9.

Ms. Luna still cannot lift more than 15-pounds. (Luna Depo. 23:14-17) Ms. Luna has not tried to lift more than 15-pounds given that the doctor told her that she could hurt herself if she lifted more weight. (Luna Depo 23:22-25).1

10.

Ms. Luna's 10-pound lifting restriction places her in the "bottom 25th percentile" compared to other females her age in terms of the activity of lifting. (Luna Ex. 3)

11.

Ms. Luna's restriction of no work above shoulder level places her in the bottom 33rd percentile... compared to other women her age." (Luna Ex. 3)

12.

Although Ms. Luna's condition has improved since 20012, the improvement is limited to the fact that she no longer needs a cane to walk. (Luna Depo 24:1-7)

13.

Ms. Luna can go up or down stairs on occasion. (Luna Depo. 25:17-18)

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In the Defendant's "undisputed facts" number 18", the defendant misconstrues Ms. Luna's testimony that she `has not tried to lift more than 15 pounds." Ms. Luna actually said she had not tried "given the doctor said that I could hurt myself more if I lifted more weight, I tried not to do that." (Depo-01 22:23-25) 2 In the Defendant's "undisputed facts" number 19, the Defendant quoted Ms. Luna felt better in 2005 than in 2001 when in fact, Ms. Luna said "given in 2001, when the doctor released me, I was using a cane so I could walk." and Ms. Luna no longer uses the cane. (Depo-01 24:1-7)

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14.

Ms. Luna still suffers from the injuries she incurred at Swift. She has problems with twisting (Depo 01 25:15-21); with bending (Depo 01 34:13-25, 35 1-6); and with stairs. (Depo 25:17-21)

15. 16.

Ms. Luna still has pain in her left arm. (Depo 01 29:23-25, 30:1-2). She is "no longer able to access all jobs within the areas of cleaning/janitorial, agriculture, production, kitchen work and the small amount of service work she could have performed. (Luna Ex. 4)

II.

ARGUMENT

To establish a prima facie case under the ADA, Ms. Luna must show: (1) she is disabled within the meaning of the ADA; (2) she is qualified, that is, with or 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 it's Motion for Summary Judgment.

Carmen Luna has (and Swift regards her as having) three physical impairments that substantially limit her in three major life activities. Ms. Luna meets her burden even if the court finds that her impairments substantially limit just

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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

Carmen Luna's undisputed lifting restrictions of not lifting more than 10pounds 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. Luna's 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 Ms. Luna'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 as to how their restrictions compared with the average person. See McCoy v. USF Dugan, Inc., 42 5

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Fed. Appx. 295, 297 (10th Cir. 2002); Gibbs v. St. Anthony Hosp. 107 F.3d 20 (10th Cir. 1997). In contrast, Ms. Luna's restrictions are less than the plaintiffs in McCoy and Gibbs and Ms. Luna 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. Luna, 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 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 6

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was unwilling to declare his impairment/diagnosis a per se substantial limitation without evidence of restrictions. Ms. Luna has provided that her physical impairments have resulted in permanent restrictions of not lifting over ten pounds. (Fact 4).

Ms. Luna 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 10). Although comparative evidence is not required when the limitation is, as here, substantially limiting "on its face", (Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240 (10th Cir. 2001)), Ms. Luna has produced evidence that the 10pound lifting restriction places her in the "bottom 25th percentile" compared to other females her age in terms of the activity of lifting. (Fact 10).

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

Ms. Luna's restriction of no work above shoulder level substantially limits her in the major life activity of reaching. Reaching is a recognized major life activity. See Doyal v. Oklahoma Heart, Inc., 213 F. 3d 492, 495-96 (10th Cir. 2000). Ms. Luna's restriction "precluding use of the left arm above shoulder level 7

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places her in the bottom 33rd percentile... compared to other women her age." (Fact 11)

C.

THE MAJOR LIFE ACTIVITY OF WORKING

Ms. Luna's permanent restrictions preclude her from a broad range and class of jobs and substantially limit Ms. Luna in the major life activity of working. As evidence, Ms. Luna presents the following evidence: · She is "no longer able to access all jobs within the areas of cleaning/janitorial, agriculture, production, kitchen work and the small amount of service work she could have performed." (Fact 16) Indulging all favorable inferences, this evidence could persuade a reasonable jury that Ms. Luna is precluded from working in a broad range and class of jobs.

III. CONCLUSION & PRAYER FOR RELIEF Because a reasonable jury could find that Plaintiff is limited in at least one of three life activities ­ lifting, reaching 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. 8

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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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