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 PATTY LEHMKUHL'S BRIEF IN SUPPORT OF HER OBJECTION TO MOTION FOR SUMMARY JUDGMENT

COMES NOW PLAINTIFF, PATTY LEHMKUHL, 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. Ms. Lehmkuhl began working at the Beef Plant on 3/31/82. (SW 13692, Lehmkuhl Ex. 2:1) 2. Swift placed Ms. Lehmkuhl on forced medical leave due to her permanent restrictions on July 9, 2003. (Lehmkuhl Ex. 2:3) 3. At the time Swift forced Ms. Lehmkuhl on medical leave, she performed the job of "housekeeping/laundry," a position she had performed for 14 years (Herrera Dep. Ex. 1; Lehmkuhl Dep. 8:9-24.) 4. Ms. Lehmkuhl received an award for her performance at the janitor position. (Lehmkuhl Dep. 42: 5-11) 5. Swift terminated Ms. Lehmkuhl on April 15, 2005. (Lehmkuhl Ex. 5) Medical History 6. Plant physicians, Dr. Wunder and John Charbonneau treated Ms. Lehmkuhl for her industrial injuries. (Lehmkuhl Ex. 1) 7. As a result of on-the-job injuries, Plaintiff has the following medical conditions: osteoarthritis involving the bilateral hip joints, left sternoclavicular osteoarthritis/synovitis, right knee arthrosis post (Lehmkuhl Dep. 9:13-14)

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meniscectomy with underlying osteoarthritis of the knee. (Lehmkuhl Ex. 1:1-4) Record of Disability 8. On April 9, 1991 Dr. Charbonneau permanently restricted Ms. Lehmkuhl from repetitive hand tasks, heavy lifting, and no glue gun. (Lehmkuhl Ex. 1:4) 9. On September 25, 2002, Dr. Wunder assigned Ms. Lehmkuhl's permanent restrictions as; maximum stand or walk 40 minutes per hour, maximum 10 pounds lift, push, pull, no squatting kneeling or crawling, (SW 7771, Lehmkuhl Ex. 1:1) Regarded as Disabled 10. On July 9, 2003, Swift placed Ms. Lehmkuhl on involuntary medical leave of absence due to her permanent restrictions of maximum stand/walk of 40 minutes per hour; avoid repetitive hand tasks, heavy lifting, no glue gun; maximum of 10-punds lift, push, or pull; and no squat, kneel or crawl. (Lehmkuhl Ex. 2:3) Limitations 11. The 10-pound weight limitation on lifting places Ms. Lehmkuhl in the bottom 25th percentile compared to women her age in spite of her somewhat advanced age of 62 years. (Lehmkuhl Ex. 3).

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12.

Ms. Lehmkuhl's ten-pound lifting restriction does not affect her life in that Ms. Lehmkuhl does not believe her inability to lift over ten pounds is life threatening or will shorten her life. (Affidavit).

13.

Ms. Lehmkuhl's permanent standing/walking limitation also put her in a reduced physical capacities group...in the bottom 33 percentile compared to other women her age. (Lehmkuhl Ex. 3)

14.

Restrictions precluding all activities that involve squatting, kneeling or crawling place Ms. Lehmkuhl in the bottom 25th percentile compared to women her age." (Lehmkuhl Ex 3)1

15.

"Ms. Lehmkuhl's work restrictions fall within the light category of work as defined by the United States Department of Labor. Ms. Lehmkuhl does not retain full access to work within this category. She is unable to stand continuously as may be required in this category of work. She also cannot lift up to 20 pounds occasionally as noted in the description. Ms. Lehmkuhl has lost access to jobs within the very heavy, heavy, medium and portions of the light category of work as noted by the Department of Labor. Gail Pickett, MA, QRC, ABDA (Lehmkuhl Ex. 4)

16.

Further Ms. Lehmkuhl 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

Swift's claim that Ms. Lehmkuhl's squatting restriction did not interfere with her duties at work or at home is a mischaracterization of the facts. Ms. Lehmkuhl said that in the janitor/locker clean up position she did not have to squat and she said that in maintaining her house she did not have to do very much squatting.(Lehmkuhl Dep. 17: 12-18)
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employment are in the Agriculture and Agriculture Services. Food Service, Food Preparation, Hotel and Restaurant Industry, Laundry Industry, Cashiering, Sales, Merchandising, Delivery, Office Work, Child care, Hospital, and Health Care Industries. (Affidavit) II. ARGUMENT

To establish a prima facie case under the ADA, Ms. Lehmkuhl 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 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.

Patty Lehmkuhl has (and Swift regards her as having) physical impairments that substantially limit her in four major life activities. Ms. Lehmkuhl 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)

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A.

THE MAJOR LIFE ACTIVITY OF LIFTING Patty Lehmkuhl's undisputed lifting restrictions of not lifting more than 10-

pounds 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. Lehmkuhl'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. Lehmkuhl'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, Ms. Lehmkuhl's restrictions are less then the plaintiffs in McCoy and Gibbs and Lehmkuhl has produced, even though not required, comparative evidence. 6

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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. Lehmkuhl, to present comparative evidence how 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. Ms. Lehmkuhl has provided that her physical impairments have resulted in permanent restrictions of not lifting over ten pounds.

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Ms. Lehmkuhl 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 8). 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. Lehmkuhl has produced evidence that the 10-pound lifting restriction places him to the "bottom 25th percentile" compared to other males her age in terms of the activity of lifting. (Fact 10).

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

The permanent 40-minute per hour standing/walking restriction substantially limits Ms. Lehmkuhl in the major life activity of standing and walking. Swift dismisses this claim, citing authority in other districts that have not recognized lengths of time as a substantial restriction See e.g. Cain v. Potter, No. SA-03-CA01283-RF, 2005 WL 613652, at *4 (W.D. Tex. Mar. 9, 2005) (Ex. A-15 to Master Brief) (plaintiff's 25% restriction on length of time he could stand did not constitute a substantial limitation of a major life activity.)

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However, in the 10th Circuit, a significant restriction may be shown with comparative evidence, unless the restriction if the restriction is no substantially limiting on its face. Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240 (10th Cir. 2001). Ms. Lehmkuhl's standing/walking restrictions place her in the bottom 33rd percentile which serves as comparative evidence to other women her age (Fact 21).

C.

THE MAJOR LIFE ACTIVITY OF SQUATTING Ms. Lehmkuhl's permanent no squatting restriction substantially limits her

in the major life activity of squatting (Fact 19). The 10th Circuit recognizes squatting as a major life activity. Prince v. Claussen, No. 98-1064, 1999 WL 152282, at *5 (10th Cir. Mar. 22, 1999)

In this case, Ms. Lehmkuhl is unable to squat due to her physical restrictions. She therefore meets the standard for a substantial limitation of a recognized major life activity of squatting. Ms. Lehmkuhl also provides

comparative evidence that her restriction precluding all activities that involve squatting, kneeling or crawling places her in the bottom 25th percentile compared to women her age" (Fact 22).

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D.

THE MAJOR LIFE ACTIVITY OF WORKING

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

·

"Ms. Lehmkuhl's work restrictions fall within the light category of work as defined by the United States Department of Labor. Ms. Lehmkuhl does not retain full access to work within this category. She is unable to stand continuously as may be required in this category of work. She also cannot lift up to 20 pounds occasionally as noted in the description. Ms. Lehmkuhl has lost access to jobs within the very heavy, heavy, medium and portions of the light category of work as noted by the Department of Labor. (Fact 14).

·

Further Ms. Lehmkuhl 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. Food Service, Food Preparation, Hotel and Restaurant Industry, Laundry Industry, Cashiering, Sales, Merchandising, Delivery, Office work, Child care, Hospital, and Health Care Industries. (Fact 15) 10

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Indulging all favorable inferences, this evidence could persuade a reasonable jury that Ms. Lehmkuhl 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 four life activities ­ lifting, standing, squatting 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.

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 11

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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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