United States District Court, M.D. Tennessee, Nashville Division
TRAVIS L. GRIMES
SOUTHWEST AIRLINES COMPANY
REPORT AND RECOMMENDATION
HONORABLE ALETA A. TRAUGER, DISTRICT JUDGE.
Order entered September 9, 2016 (Docket Entry No. 23), this
pro se and in forma pauperis employment
discrimination action was referred to the Magistrate Judge
for pretrial proceedings under 28 U.S.C. §§
636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of
Civil Procedure, and the Local Rules of Court.
has filed a motion for summary judgment (Docket Entry No.
59), to which Plaintiff has responded in opposition.
See Docket Entry Nos. 63 & 64. For the reasons
set out below, the undersigned respectfully recommends that
the motion be granted and this action be dismissed.
L. Grimes (“Plaintiff”) is currently employed by
Southwest Airlines Co. (“Defendant” or
“Southwest”) as an Operations Agent at the
Nashville International Airport, a job he has held
continuously since moving to Nashville in 2002. Plaintiff
began his employment with Southwest in 1997 as a Ramp Agent
at the Kansas City airport.
underlying background facts of this action as gleaned from
the record are as follows. On August 8, 2009, Plaintiff, who
was 53 years old at the time, suffered an on-the-job injury
to his left knee. Pursuant to the Collective Bargaining
Agreement (“CBA”) for his job classification at
Southwest, he took a twelve week leave of absence with full
pay due to the on-the-job injury (“OJI”).
See CBA, Article 13, Section 12.F (Docket Entry No.
60-4 at 10). At the conclusion of this period, Plaintiff
underwent a functional capacity evaluation
(“FCE”) at “STAR” and was also
examined by Dr. Frank Berklacich at the Tennessee Spine and
Joint Center on November 19, 2009. Dr. Berklacich completed a
Physician's Work Status Report (“November 19 Work
Status Report”) in which he: 1) checkmarked a box for
“Return to Limited Duty” and circled the word
“Today;” 2) checkmarked that Plaintiff's MMI
(maximum medical improvement) effective date was November 19,
2009; and 3) checkmarked a box under the Restrictions heading
for “Continue current restrictions” and included
a handwritten notation “per FCE.” See
Docket Entry No. 60-2 at 4. In the report, Dr. Berklacich did
not describe the restrictions and he did not attach the FCE.
Id. Internal e-mails exchanged between employees of
Integrated Care Mangaement and Xchanging, companies to whom
Southwest had delegated medical case management duties for
its injured employees, suggest that the FCE's
Medium-heavy physical demand: May lift/carry frequently 39
lbs floor to waist (78 lbs occasionally), 33 lbs waist to
shoulder (65 lbs occasionally), 34 lbs shoulder to overhead
(68 lbs occasionally); push/pull 47 lbs/39lbs (94 lbs/77 lbs
Other limitations are: occasional climbing (20 steps at a
time, 6 times/hour) and kneeling (30 seconds at a time, 15
See Docket Entry No. 60-2 at 6. However, Plaintiff
contends that Dr. Berklacich told him that he was released to
work and that his restriction was a lifting limit of 69
took the November 19 Work Status Report to Johnny Miller
(“Miller”), a Southwest supervisor, seeking to
return to work that day. Plaintiff believed that he was eligible
to return to work pursuant to Southwest's Transitional
Duty Guidelines. These guidelines provide for a six to
eight week period of work assignments at full pay for
“temporarily injured or ill employees who are expected
to return to work without limitations.” See
Exhibit 3 to Plaintiff's Deposition (Docket Entry No.
60-1 at 43). However, Plaintiff was not permitted to return
to work, either on Transitional Duty or otherwise, and he
remained on an OJI leave of absence, albeit a leave that was
now without pay since his twelve weeks of paid OJI leave had
Southwest took steps to clarify Plaintiff's status and
his ability to return to work. A letter, dated December 18,
2009, was sent to Dr. Berklacich from Integrated Care
Management requesting that he respond to questions about
Plaintiff. In a response letter, dated January 14, 2010
(“January 14, 2010 Letter”), Dr. Berklacich
checkmarked “yes” to the question “Do you
agree with the following restrictions as outlined by the FCE?
May lift/carry frequently 39 lbs floor to waist (78 lbs
occasionally), 33 lbs waist to shoulder (65 lbs
occasionally), 34 lbs shoulder to overhead (68 lbs
occasionally); push/pull 47 lbs/39 lbs (94 lbs/77 lbs
occasionally) - Occasional climbing (20 steps at a time, 6
times/hour) and kneeling (30 seconds at a time, 15
minutes/hour).” See Docket Entry No. 60-2 at
7. He also checkmarked “yes” to the question
“Are these restrictions permanent?” and
“no” to a question of whether the injury resulted
in a permanent impairment. Id.
returned to Dr. Berklacich for a previously scheduled
follow-up appointment on January 21, 2010. Dr. Berklacich
prepared a new Physician's Work Status Report that day
(“January 21 Work Status Report”), in which he
checkmarked that Plaintiff could return to regular duty that
day, but included the handwritten notation “but he
maintains pre-injury restrictions that he had for at least 8
yrs: no running, no squatting, no kneeling, no
crawling.” See Docket Entry No. 60-2 at 9. Dr.
Berklacich also revised the January 14, 2010 Letter by: 1)
marking out his prior answer of “yes” to the
question of whether these restrictions were permanent; 2)
marking “no” to the question of whether these
restrictions were permanent; and, 3) including a handwritten
notation of “no running, no squatting, no crawling, no
kneeling” with his initials and the date
“1/21/10.” See Docket Entry No. 60-2 at
8. Exactly what happened after Plaintiff's January 21,
2010, appointment is not entirely clear from the record
before the Court, but it appears that Plaintiff again
attempted to return to work in light of the January 21 Work
Status Report, but was again not permitted to return to his
job by a Southwest supervisor and he remained on an unpaid
leave of absence.
subsequently filed a charge of discrimination (“EEOC
Charge”) with the Tennessee Human Rights Commission on
February 16, 2010, asserting discrimination on the basis of
age and disability. See Exhibit to Complaint (Docket
Entry No. 1) at 11. Plaintiff alleged that:
I was out because of an on-the-job injury that occurred
August 2009, and was returned to work November 23, 2009, with
restrictions very similar to those I have had in place since
2000. My supervisor, Johnny Miller, sent me home without
explanation. The MRO, Brian Allen has a copy of my return to
work letter with the exact restrictions under which I have
performed the job as Operations Agent since 2001. On January
23, 2010, Allen denied me return to work at BNA and told me
if I wanted to return to work I would have to relocate to
another terminal. My job was recently posted so I know it was
still available for me to return to work. Younger employees,
both with and without permanent restrictions, have been
returned to work at BNA following a medical leave of absence.
I believe I am being discriminated against because of my age,
53, in violation of The Age Discrimination in Employment Act
of 1967, as amended. I further believe I am being
discriminated against because of my disability and my record
of disability, in violation of Title I of the Americans With
Disabilities Act of 1990, as amended (2008).
Id. Southwest responded to the EEOC Charge on March
12, 2010, requesting an opportunity to finish its
investigation of the matter before responding in detail.
See Docket Entry No. 60-7 at 6.
March 29, 2010, Plaintiff, who still remained on unpaid
leave, requested payment for approximately 600 hours of sick
time that he had accumulated, a procedure permitted under the
A payment for 608 hours of sick time was made to Plaintiff on
April 5, 2010. See Docket Entry No. 60-5 at 3. At
some point subsequent to the EEOC Charge, Eli Rodriguez, a
Station Manager for Southwest, informed Plaintiff via a
telephone call that he could return to full time work at his
former position, to which Plaintiff replied that he first had
to finish another job that he had secured while he was not
working for Southwest.
April 8, 2010, Plaintiff returned to his job as an Operations
Agent at his full rate of pay.Southwest subsequently issued
Plaintiff a check on April 17, 2010, paying him his full rate
of pay for the 11 week period from January 21, 2010, to the
date of his return to work. See Docket Entry No.
60-5. Southwest also responded to the EEOC Charge, requesting
that the charge be dismissed in its entirety. See
Docket Entry No. 60-7 at 7. After an unexplained delay of
nearly five years, the EEOC issued to Plaintiff a
right-to-sue letter on December 17, 2015.
COMPLAINT AND PROCEDURAL BACKGROUND
March 14, 2016, Plaintiff filed this lawsuit under the Age
Discrimination Employment Act (“ADEA”), 42 U.S.C.
2000e, et seq., and the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12132, alleging age
and disability discrimination. See Complaint at 3-4. He
contends that Southwest wrongfully refused to permit him to
return to work in either November 2009 or January 2010 and
denied him placement on Transitional Duty. He further alleges
that Brian Allen (“Allen”) told him he would
never be an Operations Agent again and that Allen and Richard
Zuellen told him that he would have to relocate to a
different job in a different city for less pay if he wanted
to remain employed with Southwest. Id. at 7-8. He
alleges that his job was posted as an open position on a
Southwest internal website while he was on his leave of
absence and that younger employees, both with and without
permanent restrictions, have been allowed to return to work
following on-the-job injuries. Id. at 8. In
addition, Plaintiff alleges that he has suffered retaliation
because the company that Southwest uses to administer its
workers compensation program has made it difficult for him to
receive his prescription medications by requiring prior
approval, which Plaintiff contends contravenes a settlement
agreement he reached with Southwest in 2001-2002 after he
suffered an on-the-job injury at the Kansas City airport.
Id. at 9. Finally, Plaintiff claims that he has been
subjected to a hostile work environment because Southwest is
“managing through intimidation” and has given him
bad evaluations. Id. at 10.
Southwest filed an answer (Docket Entry No. 32), the Court
entered a scheduling order setting out pretrial deadlines and
providing a period for discovery. See Docket Entry
No. 36. By Order entered April 7, 2017 (Docket Entry No. 49),
the Court permitted Plaintiff to make a limited request for
untimely discovery of the return to work forms for other
Southwest employees, a request to which Southwest responded
via the entry of a protective order regarding the
information. See Protective Order (Docket ...