HOWARD BAER, INC., et al., Appellants, v. Herbert D. SCHAVE, Appellee.
No. 2001-SC-0740-DG.
Supreme Court of Kentucky.
Dec. 18, 2003.
Rehearing Denied March 18, 2004.
127 S.W.3d 589
The majority holds U of L “responsible” for its retreat, i.e., entering into the Agreed Order, and implies that it acted in bad faith by doing so. This is simply not true. The temporary restraining order entered against U of L was not an adjudication of liability or fault by U of L. Rather, the temporary restraining order caused U of L to enter into the Agreed Order with MAC even though it “dispute[d] MAC‘s claims and its entitlement to any relief.” U of L did so because it “be-lieve[d] time [was] of the essence in the construction of the Stadium and it [was] in its best interest to resolve [the litigation] as quickly as possible.” In other words, U of L weighed its options and concluded that entering into the Agreed Order was its best course of action. U of L merely made the best of a bad situation. Thus, what U of L is ultimately “responsible” for is acting prudently in its own best interest. Therefore, it was entitled to cancel the contract with RAM under the termination for convenience clause, and therefore I dissent.
LAMBERT, C.J., and COOPER, J., join this dissenting opinion.
Linda B. Sullivan, William C. Jacobs, Lexington, Counsel for Appellee.
Opinion of the Court by Chief Justice LAMBERT.
This Court granted discretionary review to consider what proof is necessary to establish that a medical restriction on heavy lifting is a “disability” for purposes of the Kentucky Civil Rights Act.1 To decide this issue, we must consider whether being disqualified from performance of a single, task-specific job qualifies an individual as disabled under the Act. The United States Supreme Court recently considered this question in two seminal disability discrimination cases, Toyota v. Williams2 and Sutton v. United Air Lines,3 and we deem it appropriate to follow federal precedent.4
Howard Baer, Inc. is a trucking company that delivers bread and milk to Kroger grocery stores. Baer employs more than 350 truck drivers and has eight terminals across the nation. Herbert D. Schave was first employed as a truck driver with Baer in 1980, and in 1987 he began a “milk peddle” run from Baer‘s Winchester, Kentucky, terminal. To “peddle milk,” a driver picks up a loaded trailer at a milk distribution point and delivers the milk to Kroger stores on a designated route.
In April 1993, Schave fell off his truck in the terminal yard and injured his shoulder. Schave was treated by his family physician and continued to work until October 1993. He was then referred to an orthopedist, Dr. Frank Burke, who diagnosed a torn rotator cuff and operated on the shoulder in January 1994. The shoulder was repaired and rehabilitated, and in April 1994, Schave passed a physical examination pursuant to federal motor carrier safety regulations. The examination allowed him to renew his commercial driver‘s license and qualified him to continue driving a truck. In May 1994, Dr. Burke cleared Schave to return to work, with the restriction that he avoid “repetitive overhead positioning of the arm, crawling, [and] lifting greater than 40 pounds except occasionally.” Dr. Burke concluded, “As long as the patient is able to protect his shoulder under the circumstances described here, this patient could return to work with the job description of a truck driver.”
In September 1997, Schave filed suit against Baer in the Clark Circuit Court, alleging disability discrimination in violation of
The Kentucky Civil Rights Act was modeled after federal law, and our courts have interpreted the Kentucky Act consistently therewith.5 Under
(a) a physical or mental impairment that substantially limits one or more of the major life activities of the individual;
(b) a record of such an impairment; or
(c) being regarded as having such an impairment.
To be considered disabled under the Act, an individual “must initially prove that he or she has a physical or mental impairment.”6 Yet having an impairment does not alone make one disabled for purposes of the Act. An individual claimant must also prove that the impairment “limits a major life activity,” and this limitation must be “substantial.”7 Major life activities include, among other things, walking, seeing, hearing, performing manual tasks,8 caring for oneself, speaking, breathing, learning, and working.9 Baer concedes that Schave‘s torn rotator cuff and consequent lifting restriction constitute a physical impairment. Baer contends, however, that Schave is not substantially limited in performing any major life activity, and that he is therefore not “disabled” within the meaning of the Act.
The United States Supreme Court recently considered this issue in Toyota v. Williams,10 stating that the relevant question was “what a plaintiff must demonstrate to establish a substantial limitation in the specific major life activity of performing manual tasks.”11 The Court, quoting EEOC regulations, stated that substantially limited means
The following factors are to be considered in determining whether an individual is substantially limited in a major life activity:
“[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.”13
The Court further held that the “central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people‘s daily lives, not whether the claimant is unable to perform the tasks associated with [a] particular job.”14 Of course, employment is within the ambit of daily life activities.15
The evidence presented at trial showed that Schave did not meet the requirements associated with his work as a milk-peddle driver, but that he was not substantially limited in his major life activities. Schave‘s supervisor at Ryder testified that he performs all the responsibilities related to driving tractor trailers, and that his physical condition has not kept him from doing any job she has asked him to do. Dr. Burke testified that Schave‘s shoulder allows him to perform most of the tasks necessary to the job at Baer except for frequent lifting of forty or more pounds over his head, stating, “Forty pounds should be a range that would allow a person to do most anything except specifically put forty pounds out at shoulder level and put it over you head.” Upon cross-examination, Schave acknowledged that there were elements of the job at Baer that he could not do. He stated that he could not hook milk off the back of a truck because of the forty pound weight restriction, and that he could not pull 180 to 200 pounds.
From the foregoing it is clear that Schave is not unable to perform a “major life activity,” including employment. He is merely unable to perform heavy lifting tasks associated with his employment at Baer.16 An “impairment that
Schave further contends that even if he is not actually disabled under
In so holding, the Court stated that to be “regarded as” disabled, a plaintiff must prove 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, non-limiting 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 not have, or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.20
An employer who regards an employee as disabled must “entertain misperceptions” resulting from “stereotypic assumptions not truly indicative of individual ability.”21 To succeed upon a regarded as disabled claim, plaintiff must “demonstrate that an employer thought he was disabled, [... and] that the employer thought that his disability would prevent him from performing a broad class of jobs.”22
Although Baer concedes that Schave has a physical impairment, there is no evidence that Baer regarded the lifting restriction as having substantially limited Schave in major life activities. The evidence showed only that the company perceived Schave as not qualified to work as a truck driver for Baer because of the lifting restriction. There was no evidence from which a jury could make inferences about Baer‘s beliefs regarding the effect of the 40 pound restriction on tasks central to Schave‘s daily life.
COOPER, GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ., concur.
STUMBO, J., dissents by separate opinion in which KELLER, J., joins.
STUMBO, Justice Dissenting.
Respectfully, I must dissent. I believe that there was sufficient evidence for the jury to determine that Howard Baer, Inc. regarded Schave as having an impairment that substantially limited a major life activity.
In reviewing a judgment entered upon a jury verdict, this Court is limited to a determination of whether the trial court erred in refusing to grant a directed verdict motion. Bierman v. Klapheke, Ky., 967 S.W.2d 16, 18 (1998). On a motion for directed verdict, the trial judge is required to give the opposing party the benefit of all reasonable inferences and deductions to be drawn from the evidence. Id. A jury verdict should not be disturbed unless found to be “palpably or flagrantly against the evidence so as to indicate that it was reached as the result of passion or prejudice.” Id. The trial judge‘s decision should not be disturbed upon appeal unless found to be clearly erroneous. Id.
Here, Schave presented evidence, particularly Baer‘s “100%” rule, that indicated Baer regarded Schave as having an impairment (inability to lift 40 lbs. over his head) that substantially limited his ability to perform one or more major life activities (lifting and working). Although Schave‘s impairment may have legitimately precluded him from performing certain aspects of the milk peddler job, Baer excluded him from any type of employment by removing his name from the entire annual bid list for all truck driving positions, including those that had differing physical requirements. There was also testimony presented that most other trucking companies utilize a similar “100%” policy for truck-driving jobs. Therefore, it would not have been flagrantly against the evidence for the jury to have found that Schave was substantially limited in his ability to perform an entire class of jobs, as Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), requires.
In addition, “[w]here the 100% rule is applied to mildly impaired persons to exclude them from a broad class of jobs, it may be treating them as disabled even if they are not, thereby qualifying them for protection under the ADA and parallel statutes....” Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir.2001) (reversing grant of summary judgment for employer with “100% rule,” where employee was prohibited from all employment at a plant due to lifting restrictions). In Henderson, which was decided a few months prior to Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), the court found that the plaintiff had presented evidence that her employer had perceived that there was no job at all for her at the Ardco plant, and that such evidence “gives an indication of the employer‘s perception about her suitability for a class of relevantly similar employment.” Henderson, supra, at 654. Likewise, the jury here could have reasonably inferred that Baer had perceived Schave unsuitable for any job in the trucking industry, as evidenced by its “100%” rule that excluded Schave from any type of employment at Baer.
The decision in Williams, supra, did not affect the Sixth Circuit‘s analysis. Williams dealt with an employee‘s sub-
Accordingly, I feel that the jury had substantial evidence to conclude that Baer regarded Schave as disabled under the Kentucky Civil Rights Act and that decision should not be disturbed on appeal.
KELLER, J., joins this dissent.