NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0240n.06
Filed: April 1, 2005
No. 03-1920
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARK OLDS, )
)
Plaintiff-Appellant, )
)
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
) MICHIGAN
)
UNITED PARCEL SERVICE, INC., ) OPINION
)
Defendant-Appellee. )
BEFORE: NORRIS, BATCHELDER AND ROGERS, Circuit Judges.
PER CURIAM. Plaintiff Mark Olds appeals from the district court’s grant of summary
judgment in favor of defendant United Parcel Service, Inc. (“UPS”), in this disability discrimination
action under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (“ADA”).1
I.
The district court set forth the facts of the case in an opinion granting summary judgment
to UPS:
Plaintiff Mark Olds worked as a package delivery driver for
Defendant United Parcel Service, Inc. (“UPS”) at its St. Joseph,
Michigan facility from September 1982 until January 8, 1998.
1
The district court also granted summary judgment is favor of UPS on Olds’ claims for
retaliation in violation of the ADA and the Michigan Workers Disability Compensation Act. On
appeal, Olds does not challenge the decision to grant UPS summary judgment on those claims.
Olds v. UPS
No. 03-1920
Plaintiff is 52 years old, married, and has three children. He has a
high school education and an associate’s degree in business. Prior to
beginning employment with Defendant, Plaintiff worked at various
manual labor jobs including welding, machining auto parts,
construction, and carpentry. All parties agree Plaintiff had an
excellent employment record while with UPS.
In 1997, Plaintiff was diagnosed with monoclonal
gammopathy of undetermined significance, a condition involving an
abnormal protein that leads to cancer 20 percent of the time. This
diagnosis had no impact on Plaintiff’s ability to work. After
sustaining a compression fracture in his neck while on the job in
January 1998, Defendant was diagnosed with multiple myeloma, a
cancer affecting bone marrow. Plaintiff went on short-term disability
after sustaining this injury. After undergoing chemotherapy, Plaintiff
sought to return to work in May 1998 pursuant to his doctor’s
approval. Plaintiff was initially under a 25 pound lifting restriction
and precluded from doing any kind of repetitive bending or twisting.
This was later increased to a 40 pound restriction in January 1999,
and the lifting restriction was made permanent in September 1999.
Plaintiff was also instructed not to perform certain repetitive
activities that might put sudden, excessive force on his bones.
Plaintiff underwent a bone marrow transplant in September 2002. He
was cleared to work in January 2003, still under a 40 pound lifting
restriction.
Plaintiff first inquired about accommodation for his weight
restriction in February 1999 and formally sought accommodation in
September 1999. Plaintiff sought permission to use a two-wheel
dolly to deliver packages over 40 pounds in weight. In October 1999,
Plaintiff submitted a written request for Defendant to make this
accommodation available to him.1 Defendant denied Plaintiff’s
1
Defendant instructs its drivers to use a two-wheel dolly when delivering packages over 70
pounds and places no restriction on a driver’s decision to use a dolly for lesser weight packages.
Defendant also recommends use of a dolly when delivering multiple packages and/or envelopes
to one location regardless of their individual or cumulative weight. The Court also notes, drivers
are allotted a certain amount of time in which to complete their routes based on time studies
periodically conducted by Defendant. Use of a dolly generally increases the allotted delivery
time by approximately 15 seconds. Such an allotment is granted to account for the time needed
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Olds v. UPS
No. 03-1920
request for accommodation on the basis that it did not find him
entitled to one under the Americans with Disabilities Act of 1990
(“ADA”). Defendant also informed Plaintiff he was not qualified to
return to work because of his lifting restriction. Plaintiff filed a
grievance with respect to Defendant’s refusal to let him return to
work under a 40 pound lifting restriction. The grievance was
appealed to a state panel which upheld UPS’s decision as not being
in violation of the collective bargaining contract. The panel did not
address whether Defendant should provide Plaintiff with any
accommodation or whether other positions were available.
After being denied the opportunity to return to his old job as
a package delivery driver, Plaintiff bid on a number of openings at
the St. Joseph facility, including delivery driver positions, a customer
clerk opening, a porter position, and an air shuttle driver job. His
application for each was denied on the ground that he was unable to
perform the essential job function of being able to lift over 40 pounds
regardless of his seniority.
Plaintiff is currently collecting Social Security Disability
benefits, for which he applied in January 1998, pursuant to his
diagnosis. Immediately after sustaining his injury, Plaintiff also filed
a worker’s compensation claim that Defendant initially denied.
Subsequently, in May 1999, upon review by a Magistrate Judge,
Plaintiff was awarded worker’s compensation benefits for a closed
period from January to October 1998, the time during which
Plaintiff’s compression fracture was healing. In June 2000, Plaintiff
filed a charge of discrimination with the Michigan Department of
Civil Rights, which, as far as the Court can determine from the
record, recommended referral of the case to conciliation.
Opinion, June 17, 2003 at 1-3 (footnote in original).
The district court granted summary judgment to defendant because it found that plaintiff was
not disabled as defined by the ADA. The court held that Olds did not suffer from an impairment that
substantially limited a major life activity because “a lifting restriction alone does not constitute a
to deliver packages over 70 pounds with a dolly.
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No. 03-1920
disability.” Opinion, June 17, 2003, at 5. The court also concluded that Olds was not substantially
limited in a major life activity because he did not demonstrate a significant restriction on his ability
to obtain employment in a broad range of jobs. In the same vein, the court determined that Olds did
not suffer from a record of impairment that substantially limited a major life activity: “At no time,
based on the record before the Court, has Plaintiff’s physical impairment substantially limited one
or more of his major life activities.” Opinion, June 17, 2003, at 11. Finally, the district court held
that Olds did not suffer from being regarded as having an impairment that substantially limited a
major life activity. It determined that UPS did not permit Olds to return to work because of his
lifting restriction, and that Olds did not raise a question of fact with respect to whether UPS
entertained a misperception about him.
II.
This court reviews a grant of summary judgment de novo. Motorists Mut. Ins. Co. v.
Hammond, 355 F.3d 593, 596 (6th Cir. 2004). Summary judgment must be granted pursuant to Fed.
R. Civ. P. 56(c) if there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. All evidence and inferences must be construed in the light most
favorable to the non-moving party. Shah v. Deaconess Hosp., 355 F.3d 496, 498 (6th Cir. 2004).
To state a claim under the ADA, a plaintiff must demonstrate:
(1) that she is a disabled person within the meaning of the Act, (2)
that she is qualified to perform the essential functions of her job with
or without reasonable accommodation, and (3) that she suffered an
adverse employment decision because of her disability.
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No. 03-1920
McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir. 1997). The parties do not
dispute that Olds suffered an adverse employment action, but do contest the other two elements of
the test.
“Disability” under the ADA means:
(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an
impairment.
42 U.S.C. § 12102(2). A plaintiff who claims that he is disabled because a condition substantially
limits his ability to engage in the “major life activity” of working must show that he is “significantly
restricted in [his] ability to perform either a class of jobs or a broad range of jobs in various classes
as compared to the average person with comparable training, skills and abilities.” McKay, 110 F.3d
at 371. (quoting 29 C.F.R. § 1630.2(j)(3)(i)). Olds accordingly can survive summary judgment if
he can demonstrate that he was subject to any one of these three conditions and that he was restricted
in his ability to work in a “class of jobs” or a “broad range of jobs in various classes.” Id. However,
the “inability to perform a single, particular job does not constitute a substantial limitation in the
major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i).
We agree with the district court that Olds is not so physically impaired that he is disabled
as defined by the ADA. Olds argues that he has a physical impairment, cancer, which creates a
weight restriction that substantially limits a major life activity: his ability to work. However, as the
district court correctly concluded, the general rule in this circuit is that a weight restriction alone is
not considered a disability under the ADA. Opinion, June 17, 2003, at 5-7 (citing Gayer v. Cont’l
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No. 03-1920
Airlines, 21 Fed.Appx. 347 (6th Cir. 2001) (unpublished)); see also McKay, 110 F.3d at 373
(holding that plaintiff’s inability to lift more than ten pounds would not significantly restrict her
ability to perform a broad range of jobs in various classes). Olds’ lifting restriction prevents him
from working as a delivery driver and from performing other jobs at UPS specifically, but there is
no evidence in the record that it prevents him from engaging in a broad class of jobs.
Similarly, Olds has not raised a genuine issue of material fact that he has a “record of
impairment.” “A record of an impairment means an individual has ‘a history of, or has been
misclassified as having, a mental or physical impairment that substantially limits one or more major
life activities.’” MX Group, Inc. v. City of Covington, 293 F.3d 326, 339 (6th Cir. 2002); (citing 28
C.F.R. § 35.104(3)). The district court determined that Olds’ physical impairments limited his
ability to meet his job requirements, but did not limit one or more major life activities. We agree
with the district court for the same reasons that led us to conclude that Olds was not disabled as
defined by the ADA.
That said, we depart from the decision in one respect: we hold that Olds has raised a genuine
issue of material fact about whether UPS regarded him as having an impairment. To succeed in
demonstrating that he is “regarded as having . . . an impairment,” a plaintiff must show the
following:
(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, nonlimiting
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
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No. 03-1920
one has a substantially limiting impairment when, in fact, the
impairment is not so limiting.
Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th Cir. 2001) (citing Sutton v. United Air Lines, 527
U.S. 471, 489 (1999)). The district court concluded that there was no evidence to indicate that UPS
discriminated against Olds based upon a misperception; rather, it concluded that UPS refused him
employment based upon an accurate understanding of his limitations—that he could not lift 40
pounds.
However, a former UPS employee testified that a UPS corporate lawyer said that Olds should
not be reinstated because he had cancer. Furthermore, the former employee testified that UPS did
not want to accommodate Olds because it did not want to rehire him: “we didn’t want to come right
out and say that because of Mark’s condition, his cancerous condition, that he couldn’t do the job.”
The same employee also indicated that UPS changed the lifting requirements of certain positions
to avoid accommodating Olds. A reasonable jury could infer that UPS believed that Olds’ condition
was significantly more disabling than it actually was, and for that reason UPS did not want to
reinstate him. Olds has accordingly raised a genuine issue of material fact as to whether UPS
regarded him as having an impairment.
Because the district court determined that Olds was not disabled as defined by the ADA, it
did not reach the question of whether he was qualified to perform the essential functions of his job.
UPS argues that Olds cannot perform the task of lifting up to 70 pounds without assistance, a task
defined by UPS as essential. Olds suggests that the weight-lifting requirements are arbitrary because
they were changed without regard to job duties to make the lifting requirements “uniform” for all
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Olds v. UPS
No. 03-1920
jobs at the St. Joseph facility. He also contends that other package delivery drivers with back
problems had been given permission to use dolly carts and request customer assistance for limited
periods of time. Accordingly, on remand, the district court will need to determine what the
“essential functions” of UPS jobs are and whether Olds reasonably can perform them with an
accommodation.
UPS argues that Olds is precluded from demonstrating that he is qualified because an
administrative law judge found him entitled to Social Security Disability benefits. We disagree.
Under the Supreme Court’s decision in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 807
(1999), Olds is required to give a “sufficient explanation” as to how he can perform the essential
functions of the job, given the Social Security Administration’s determination of total disability.
However, because the Social Security Administration assesses only what a claimant can do, while
the relevant inquiry under the ADA asks what the claimant can do with or without accommodation,
the only explanation that a plaintiff need provide is that he can perform the work in question with
accommodation. As stated by the Supreme Court:
To defeat summary judgment, that explanation must be sufficient to
warrant a reasonable juror’s concluding that, assuming the truth of,
or the plaintiff’s good-faith belief in, the earlier statement [to the
Social Security Administration], the plaintiff could nonetheless
“perform the essential functions” of her job, with or without
“reasonable accommodation.”
Id. Because Olds has suggested two accommodations, namely, either a transfer to another position,
or permission to use the dolly cart and to request customer assistance with packages over 40 pounds,
it appears that he can provide a satisfactory “explanation.”
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No. 03-1920
III.
The judgment of the district court is reversed and the case is remanded to the district court
for further proceedings consistent with this opinion.
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