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Grimes v. Southwest Airlines Co.

United States District Court, M.D. Tennessee, Nashville Division

January 31, 2018

TRAVIS L. GRIMES
v.
SOUTHWEST AIRLINES COMPANY

          REPORT AND RECOMMENDATION

          HONORABLE ALETA A. TRAUGER, DISTRICT JUDGE.

         By 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.

         Defendant 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.

         I. FACTUAL BACKGROUND

         Travis 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.

         The 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”[1] 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 restrictions were:

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 occasionally)
Other limitations are: 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 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 pounds.[2]

         Plaintiff took the November 19 Work Status Report to Johnny Miller (“Miller”), a Southwest supervisor, seeking to return to work that day.[3] Plaintiff believed that he was eligible to return to work pursuant to Southwest's Transitional Duty Guidelines.[4] 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 expired.

         Thereafter, 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.

         Plaintiff 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.[5]

         Plaintiff 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.

         On 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 CBA.[6] 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.[7]

         On April 8, 2010, Plaintiff returned to his job as an Operations Agent at his full rate of pay.[8]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.

         II. COMPLAINT AND PROCEDURAL BACKGROUND

         On 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.[9] 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.

         After 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 ...


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