Nowlin v. K-Mart Corp., (10th Cir. 2000)

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UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

DONALD C. NOWLIN,

Plaintiff-Appellant,

v.

K MART CORPORATION,

Defendant-Appellee.No. 99-3186

(D.C. No. 97-CV-2468-GTV)

(District of Kansas)

ORDER AND JUDGMENT(*)

Before BALDOCK, MAGILL(**) andLUCERO, Circuit Judges.

This is an appeal from a grant of summary judgment to defendant-appelleeKmart Corporation ("Kmart") in an action alleging violations of the AmericansWith Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., the EmployeeRetirement Insurance Security Act of 1974 ("ERISA"), 29 U.S.C. § 1140, andKansas state law. We decide whether plaintiff-appellant Donald C. Nowlin wasconstructively discharged under the ADA and whether the district court's grant ofsummary judgment was otherwise erroneous. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.

I

The underlying, uncontroverted facts of the case are set forth more fully inthe district court's memorandum order. See Nowlin v. K Mart Corp., No.97-2468-GTV (D. Kan. May 10, 1999). For purposes of this appeal, the followingbrief summary of those facts is sufficient. The instant appeal revolves around aperiod of nine working days--August 26 to September 4, 1996--during the courseof Nowlin's employment with Kmart. During that nine-day period, Nowlinclaims he was forced to work in jobs for which he was physically unsuitedbecause he suffers from bilateral carpal tunnel syndrome as well as a conditioncalled bilateral epicondylitis.

During the nine days in question, the third shift in which he worked as achecker was eliminated and combined with an earlier shift. After the eliminationof the shift, employees with more seniority than Nowlin were given checkerpositions in the first and second shifts, while Nowlin was not. Instead, Kmartreassigned Nowlin to the job of freight handler in the shipping department. Hecomplained of an inability to perform the job "because it was too much againstdoctor's restrictions and too many items were too heavy." (I Appellant's App. at68.) At the time, a physician had restricted him to "a job that limits the repetitiveflexion-extension motions at both wrists and both elbows," as well as a "40-poundweight restriction, meaning he should not be required to lift greater than 40pounds at any one time and should only lift smaller amounts than this on any typeof repetitive basis." (II Appellant's App. at 697.)

Kmart reassigned him to several other tasks over the next nine days, someof which he complained violated his work restrictions, after which Kmart againtransferred him to other tasks that did not violate his restrictions. OnSeptember4, 1996, he told a Kmart human resources manager, Martha Engnehl, that hewould not be working his shift that night because his arms and hands were aching. Engnehl offered to make an appointment for him with a physician, to which heagreed. When she called him back to report that she had obtained an appointmentwith a physician, she advised him that he should obtain definite restrictions fromthe physician regarding the specific jobs for which he was suited. The physicianissued such restrictions, limiting him to working as a checker or in "put-a-way." (Id. at 78.) On September 6, Nowlin spoke with Engnehl, informing her that hewas quitting his job, despite her offer to place him in a position driving a forkliftor checking in accordance with his restrictions. He stated he was "tired ofmessing with it," presumably meaning forklift driving and the job in general, andif she had any questions, she could call his lawyer. (Id. at 80.)

In January and March 1997, Nowlin filed charges of discrimination withthe Kansas Human Rights Commission ("KHRC") and the federal EqualEmployment Opportunity Commission ("EEOC"), alleging constructive dischargein violation of the ADA and retaliation for filing a previous charge of disabilitydiscrimination.(1) In September 1997, hefiled the instant lawsuit in United StatesDistrict Court for the District of Kansas, alleging Kmart constructively dischargedhim on the basis of his disability in violation of the ADA, 42 U.S.C. §§ 12101 etseq., and ERISA, 29 U.S.C. § 1140, and in retaliation for exercising his rightsunder the ADA and ERISA, committed intentional infliction of emotional distressunder Kansas law, and committed fraud and abuse under the Kansas workers'compensation law. The district court granted summary judgment to Kmart on allclaims except the fraud and abuse claim, which it dismissed without prejudice forfailure to exhaust administrative remedies.(2) This appeal followed.

II

"We review the district court's grant of summary judgment de novo,applying the same legal standard used by the district court. Summary judgment isappropriate 'if the pleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving party is entitled tojudgment as a matter of law.' Fed. R. Civ. P. 56(c). . . . [W]e view theevidenceand draw reasonable inferences therefrom in the light most favorable to thenonmoving party." Simms v. Oklahoma ex rel. Dep't of Mental Health &Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S. Ct.53 (1999).

Turning first to Nowlin's claims under the ADA, that statute defines"disability" as "(A) a physical or mental impairment that substantially limits oneor more of the major life activities of [an] individual; (B) a record of suchimpairment; or (C) being regarded as having such an impairment." 42 U.S.C.§ 12102(2). An impairment "substantially limits" a major life activity if theindividual is unable to perform that activity or is significantly restricted in theability to perform the major life activity compared to the general population. Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999) (citing 29 C.F.R.§ 1630.2(j)(1)). In the present case, Nowlin claimed he was disabled for purposesof lifting and working.

With regard to lifting, the district court found that Nowlin could lift up toforty pounds (a fact which is undisputed) and that he had failed to show that thiswas a significant restriction compared to the general population. But it is settledin our Circuit that plaintiffs need not present comparative evidence regarding thepopulation as a whole in order to prove they are disabled. See Lowe v. Angelo'sItalian Foods, Inc., 87 F.3d 1170, 1173 (10th Cir. 1996). As for working, thedistrict court again found Nowlin had failed to present "competent evidence thathe is unable to perform a class of jobs or a broad range of jobs in variousclasses." Nowlin, No. 97-2468-GTV, at 13. Nowlin needed to show evidencethat he was "significantly restricted in the ability to perform either a class of jobsor a broad range of jobs in various classes as compared to the average personhaving comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i).(3)

We need not sift through the evidence regarding Nowlin's disability underthe ADA, however, because we hold that even if he is disabled, Kmart's efforts toaccommodate him refute his claim of constructive discharge. To proveconstructive discharge, plaintiffs must allege sufficient facts to demonstrate under"the totality of the circumstances," Yearous v. Niobrara County Mem'l Hosp., 128F.3d 1351, 1356 (10th Cir. 1997) (citation omitted), "the employer by its illegaldiscriminatory acts has made working conditions so difficult that a reasonableperson in the employee's position would feel compelled to resign," Sanchez v.Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998) (quoting Derr v. Gulf OilCorp., 796 F.2d 340, 344 (10th Cir. 1986)), or that the employer, by itsdiscriminatory actions, forced plaintiffs to choose between resignation ortermination, see Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978 (10th Cir.1996).

Among the factors we consider in determining the voluntariness of anemployee's resignation are "(1) whether the employee was givensome alternative to resignation; (2) whether the employee understoodthe nature of the choice [s]he was given; (3) whether the employeewas given a reasonable time in which to choose; and (4) whether[s]he was permitted to select the effective date of resignation." Bycomparison, "[a] resignation will be involuntary and coerced whenthe totality of the circumstances indicate[s] the employee did nothave the opportunity to make a free choice."

Yearous, 128 F.3d at 1356 (quoting Parker v. Board of Regents of Tulsa Jr.College, 981 F.2d 1159, 1162 (10th Cir. 1992)) (further citations omitted).

Given Kmart's attempt to accommodate Nowlin in various jobs,(4) there is nogenuine issue of material fact--despite his allegations of pain--as to whether thetotality of the circumstances under which he had to work was "objectivelyintolerable" and not just "subjectively" so, such that "a reasonable person in [his]position would feel compelled to resign." Sanchez, 164 F.3d at 534.(5) Thatconclusion also disposes of his state law retaliatory discharge claim. In ourjudgment, there is no genuine issue as to whether Nowlin was discharged,constructively or otherwise.(6) Rather, hesimply quit his job, stating he was "tiredof messing with it," despite Kmart's efforts to accommodate him. (I Appellant'sApp. at 80.)(7)

Finally, as to his intentional infliction of emotional distress claim, thedistrict court found, among other things, that Kmart's conduct was not extremeand outrageous. "To prove the tort of outrage, a litigant must show: (1) Theconduct of the defendant was intentional or in reckless disregard of the plaintiff;(2) the conduct was extreme and outrageous; (3) there was a causal connectionbetween the defendant's conduct and the plaintiff's mental distress; and (4) theplaintiff's mental distress was extreme and severe." Miller v. Sloan, Listrom,Eisenbarth, Sloan & Glassman, 978 P.2d 922, 930 (Kan. 1999) (citing Smith v.Welch, 967 P.2d 727 (Kan. 1998)); see also Welch, 967 P.2d at 734(indicatingthat under Kansas law, intentional infliction of emotional distress is the same asthe tort of outrage). Given Kmart's efforts to accommodate Nowlin, we agreewith the district court that there is no genuine issue of material fact as to whetherKmart's conduct rises to the level of being "atrocious and utterly intolerable in acivilized society" such that it might be deemed "extreme and outrageous." Miller,978 P.2d at 930. We thus need not address whether the other elements of theKansas tort of intentional infliction of emotional distress have been met.

III

The judgment of the district court is AFFIRMED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

**. Honorable Frank Magill, Senior CircuitJudge, United States Court ofAppeals for the Eighth Circuit, sitting by designation.

1. The previous charge of disabilitydiscrimination was filed with the EEOCagainst Kmart in 1995. With regard to that previous charge, the EEOC declareditself "unable to conclude that the information obtained establishes violations ofthe statutes." (I Appellant's App. at 184.) Nowlin took no further legal actionuntil the present action.

2. The district court's dismissal of the fraudand abuse claim under Kansasworkers' compensation law is not challenged in this appeal.

3. As for Nowlin's claim that the courtshould have found he was "regardedas" disabled under the ADA, he failed entirely to present that claim before thedistrict court below in his motion for summary judgment, and so it is waived. SeeWalker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (holding thatit is a general rule that this Court will not consider an issue on appeal that was notraised below).

4. Nowlin claims that "by K-Mart's ownadmission, [he] would have beenrequired to endure the same pain and suffering he had endured for the previoustwelve days for the immediate future, except when a checker was on vacation orsick leave." (Appellant's Br. at 35.) However, this misconstrues the undisputedrecord in this case, which indicates that on the day Nowlin resigned, Engnehloffered to employ him as a checker or forklift driver in accordance with hisrestrictions, not in positions that would have violated those restrictions.

5. Thus, on reviewing the record on theconstructive discharge claim, wedisagree with Nowlin's contention that "[t]he District Court failed to consider thefacts [on summary judgment] in the light most favorable to the opposing party." (Appellant's Br. at 24.) We also disagree with his contention that the treatmentother employees received, together with the evidence in the record, is sufficient inthe present case to raise a genuine issue of material fact as to whether anemployee in his position would feel compelled to resign.

6. Nor was Kmart required to place him in achecker position to which hisseniority did not entitle him. See Smith v. Midland Brake, Inc., 180 F.3d 1154,1170 (10th Cir. 1999) (en banc) ("[I]f other employees within the company have alegitimate contractual or seniority right to a vacant position, it is not consideredvacant for reassignment to the disabled employee.").

7. Based on our review of the recordincluding the district court'smemorandum order, we reject appellant's contention that the district court failedto consider the totality of the circumstances of his resignation in determining thatno constructive discharge had occurred.

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