On November 4, 2003, plaintiff filed a pro se complaint, under Title VII and the Americans with Disabilities Act ("ADA"), alleging sex discrimination and perceived disability after an on-thejob injury by defendant in failing to provide her necessary training and certification in order for her to do her job. She asserts that defendant refused to allow her to attend training and certification classes and threatened termination if she attended those classes at her own expense. Plaintiff continues that she has consistently and unfairly been given poor evaluations and discipline. As relief, plaintiff requests paid training and certification and damages through a jury trial.
On December 30th, defendant filed a motion for summary judgment supported by brief, affidavit, deposition excerpt and a separate statement of undisputed facts. It contends that plaintiff cannot establish a prima facie claim for sex discrimination since none of the events she complains of constitute an adverse employment action and that it had legitimate, non-discriminatory reasons for its actions. As to the ADA claim, defendant again asserts that plaintiff is unable to establish a prima facie case as she is not disabled nor regarded as such as defined by the ADA and that she has not suffered an adverse action due to any alleged disability.
Plaintiff filed a pro se response on January 21st that she had little time to seek legal advice due to illness and had experienced much retaliation over this case from her employer. She continued that there is evidence when the employer said "it" was because she is a woman.
By order filed on January 26th, the Court appointed counsel for plaintiff,*fn1 granted permission for a supplemental response to be filed, and set a hearing on the summary judgment motion which was held on March 4th.
Prior to the hearing on the morning of March 4th, plaintiff, through her appointed attorney, filed an amended and substituted response to the summary judgment motion as well as brief, exhibits and a controverting statement. A second amended and substituted response with supporting materials was later filed that same date.
Plaintiff asserts that she was discriminated against on the basis of her sex and her perceived disability when she was denied certain training opportunities and when she was not allowed to check out equipment to use on her own vehicle as her male counterparts were permitted to do. She contends that when she was hired as a diesel mechanic helper in 1999, the men protested wanting to know what they were suppose to do with this woman and she met resistance with the men in both shops. Plaintiff has testified that she was the only female to hold the position of diesel mechanic and in 1999 or 2000 was denied the opportunity to train two consecutive years and was the only one left off the list for training; she was daily harassed by the men in the shop by them saying that she could not do the job because she was a woman and needed help; she was not allowed to go to training by the Arkansas School Bus Mechanics Association in June 2003 and 2004 in order to get her certification which has put her at a disadvantage; she is required to have a certain number of hours of training per year which she has not met; and she was told that since she was only going to be doing filing that the district would not spend the money training her.
She continues that she was placed on light duty after being off work for six months as a result of a back injury which restricted her to filing and so was advised around March 17, 2003, when she returned and received a poor job evaluation that due to the fact that she was on light duty and had not returned to her duties as a mechanic, she would not be permitted to go to the June training, but she responded that she had every intention of returning to her duties as a mechanic and wanted to attend training, but was refused due to the perception she was disabled and because she was a woman. When she was off light duty and asked to attend training at her own expense, she was advised that she would be terminated for insubordination if she did. Plaintiff also maintains that she was treated differently for not being allowed to borrow the district equipment. She said in the eight years she had worked there she witnessed other guys such as Henry Hawkins and Bob Frederick borrow a hoist to work on their own vehicles after using the sign in/out sheet, but when she requested to borrow a hoist for her own car in March of 2003, she was denied the opportunity.
Plaintiff also testified that when she was initially hired, males hired after her were paid more and were given promotions over her to higher paid positions until she was promoted to diesel mechanic in June 2000; that she was subjected to sexual harassment in the South Shop from a co-worker in 1999 or 2000, her supervisor at the time took a cavalier attitude towards the conduct, and other co-workers began to shun her when they found out about that complaint resulting in her request - which was granted - to be transferred to the North Shop; the female supervisor there would make comments about her make-up, commented that she was a mechanic and not a woman when a person at a print shop got upset that they had sent a woman over to pick up heavy boxes; she was given a poor evaluation based on her dress; she began to experience sexual harassment from Henry Hawkins and so filed an EEOC charge in 1999; and Bob Frederick would not allow her to have a hoist to do heavy lifting but would tell co-workers to do it for her creating a hostile atmosphere.
On May 6th, defendant filed a reply that plaintiff's assertions of material issues of fact, based exclusively on her deposition testimony, are that males hired after her received higher pay; male employees had received promotions that she was denied because they had attended training sessions that she was not permitted to attend; that the refusal of plaintiff's supervisor to allow her to attend training courses resulted in her being ineligible for promotions, and she was regarded as being disabled because defendant restricted her to performing only light duty. Defendant counters that since plaintiff was employed, it has not hired any male who received higher starting pay than plaintiff; all male employees in plaintiff's department and job classification who are more highly paid than plaintiff receive the higher pay because they have more seniority than her; and there have been no promotions in plaintiff's department since March 1999 although all mechanics including plaintiff received across-the-board upgrades in 2000 so no employees could have been promoted ahead of plaintiff due to attending a training session in 2003. In support of the reply, defendant attached a supplemental affidavit reflecting that when plaintiff was hired as a mechanic helper on August 24, 1998 plaintiff was making $7.89 per hour and is currently making $19.70 per hour and the attached pay schedule reflects that any difference in pay is based on seniority with no male hired in the same position after plaintiff receiving higher pay.
It continues that even if plaintiff's deposition is construed in a light most favorable to her, she was not refused permission to attend training in 2003 because of her sex and that fact that she did not attend training did not make her ineligible for promotion since she was upgraded from mechanic helper to diesel mechanic in 2000 and plaintiff could not have applied for any promotions in her department since 1999 because there were no promotional opportunities during that time. Defendant takes issue with plaintiff's assertion that she is ineligible for promotion by not being allowed to attend a training course in 2003 since she has met the minimum qualifications for the only promotional opportunity in her department as diesel mechanic foreman since she attained five years experience in 2001, has a high school diploma or GED, has completed a vo-tech diesel mechanic class with a grade of "B" or better, has a commercial driver's license, and passed drug/alcohol testing and such a promotion would be governed by the policy that all applicants who meet the minimum qualifications are interviewed by a biracial interview committee which selects the best qualified candidate for the position based on the interview scores.
It also states that until 2000, mechanics were only permitted to attend the annual training session conducted by the state every other year due to the need to complete necessary vehicle repair work in the department and after 2000, it was decided to allow all employees working without medical restriction to attend the training every year since the district was reimbursed for the charges by the state, not every mechanic has attended the training program every year, and some male mechanics have missed the training sessions for various reasons. Defendant also maintains that no state or federal law requires mechanics employed by defendant to be certified, but plaintiff meets the minimum qualifications mandated by defendant itself. It states that the annual training is not mandatory since it is not required to maintain the certification required by defendant and plaintiff was not the only mechanic who did not attend the June 2003 class. Defendant submits that plaintiff was not enrolled in the June 2003 training because she had been on medical leave from October 2002 through March 2003, upon her return she was placed on light duty by her medical providers, the time for enrollment in the class occurred while she was on light duty, she was not registered since defendant does not send employees to training when they are on medical leave or have restrictions on their job duties, and when she returned in late March of 2003, she was restricted by her physician to duties that did not require heavy lifting which is an essential requirement of a mechanic's job duties. Defendant points to plaintiff's deposition where she conceded that she was not permitted to attend the June 2003 training because she was on light duty at the time; that she agreed that she is currently certified to be a mechanic for defendant; that at the same time she states that she was not allowed to go to training because she was a woman she also said it was because she had been on medical leave and was on light duty. It contends that in the face of defendant's legitimate nondiscriminatory reason of not sending mechanics to training who are on light duty, plaintiff has only a vague reference to a comment by an unnamed employee at an unspecified time and place that she was not sent to training because she was a woman when she has admitted that she was told that it was because she was on light duty. Moreover, defendant reiterates that plaintiff has not suffered an actionable adverse employment action.
Defendant also states that it is undisputed that plaintiff was on medical leave from October 2002 through March 2003 and on a number of different occasions submitted physician statements - October 10, 2002, October 18, 2002, November 6, 2002, December 17, 2002, January 7, 2003, February 13, 2003, April 17, 2003, June 3, 2002, and May 18, 2004 - which restricted her to light duty jobs only and there is no evidence that she was regarded as being disabled. In addition, she is not limited in any major life activities and has not offered proof of any adverse employment action such as a reduction in title, salary, benefits or any material change in her employment status.
Summary judgment can properly be entered when there are no genuine material facts that can be resolved by a finder of fact; that is, there are no facts which could reasonably be resolved in favor of either party. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2512 (1986). The non-moving party may not just rest upon his or her pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986); Civil Procedure Rule 56. "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather the dispute must be outcome determinative under prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).
Local Rule 56.1 provides that a party moving for summary judgment must file a separate, short and concise statement of material facts as to which it contends there is no genuine issue to be tried. The rule further provides that unless the non-moving party files a separate, short and concise statement of the material facts as to which it contends a genuine issue exists to be tried, all material facts set forth in the moving party's statement will be deemed admitted.
Defendant's Local Rule 56.1 statement is set out below with plaintiff's response in brackets:
1. On or about August 5, 2003, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission, a copy of which was attached to her Complaint in this Court. In her charge, Plaintiff alleged as follows:
I was hired in February 1998, as Diesel Mechanic. In October 2002, I suffered an on the job injury and restricted to light duty. On March 17, 2003, I was allowed to return to work in a light duty position. I received an unsatisfactory appraisal the same day. On April 9, 2003, I was questioned about when I would return to full duty. On April 29, 2003, I received a full release from my physician. On June 6, 2003, I was informed that I would not be attending training as were my co-workers. I was also not allowed to check out equipment like my co-workers. The Director told me that they did not have any light duty positions. He then told me that I would not be attending training and could not check out equipment because I was on light duty. I believe that I was given a poor evaluation and not allowed to attend training because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended, and because I am regarded as disabled, in violation of the Americans with Disabilities Act of 1990, as amended. [Admit.]
2. The mechanics training class offered in early June 2003 was an annual class offered by the Arkansas Department of Education for school district mechanics. This training is not mandatory; as such, not all mechanics employed by the District attend the training every year. [Deny. The plaintiff testified that she was the only mechanic not allowed to attend the training, and she was told that it was due to her being a woman. Furthermore, the plaintiff testified that as diesel mechanics, you are required to obtain a certain number of hours of training per year.]
3. Not all of the mechanics employed by the District attended the June 2003 training because the training was not required in order for the mechanics to maintain the required certification. [Deny. The plaintiff testified that she was the only mechanic not allowed to attend the training, and she was told that it was due to her being a woman. Furthermore, the plaintiff testified ...