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Peters v. City of Mauston

November 20, 2002

ROBERT PETERS, PLAINTIFF-APPELLANT,
v.
CITY OF MAUSTON, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Wisconsin. No. 01-C-247-C--Barbara B. Crabb, Chief Judge.

Before Bauer, Manion, and Rovner, Circuit Judges.

The opinion of the court was delivered by: Bauer, Circuit Judge

ARGUED SEPTEMBER 18, 2002

Plaintiff Robert Peters ("Peters") brought an action for disability discrimination pursuant to the Rehabilitation Act of 1973 against his employer, the City of Mauston, Wisconsin ("the City"), when the City terminated Peters after he suffered a work-related injury. Assuming, solely for the purpose of summary judgment, that the City regarded Peters as disabled, the district court granted summary judgment in favor of the City. Specifically, the court found that Peters' requested accommodation was unreasonable because it eliminated an essential function of his job as an Operator. Peters appeals the district court's determination that heavy lifting was an essential function of his job as well as the district court's finding that his proposed accommodation was unreasonable. We affirm.

BACKGROUND

A. Peters' Employment History with the City

Peters began his employment with the City of Mauston, Wisconsin, in March 1968 upon his graduation from high school. He worked for the City for approximately nine years before he quit to work in construction. Peters then returned to his employment with the City as an Operator in 1978 and remained in that position until his termination on March 15, 1995.

The City has two job classifications relevant to Peters' case: Operator and Laborer. As an Operator, Peters' duties included using various construction equipment as well as being able to perform all duties assigned to Laborers. A Laborer performs a wide range of construction tasks, including the lifting of heavy objects. Laborers, however, are not authorized to use the construction equipment, as operation of the equipment is left solely to the Operators, who are generally in charge on the worksite. According to the City, the job of an Operator is relatively unpredictable and includes such duties as: excavating trenches for replacement or repair of existing water, wastewater, and storm water mains and laterals; removing snow and ice accumulations from streets and sidewalks; trimming trees and cutting brush; and performing maintenance on equipment.

During the three years prior to his termination Peters suffered two work-related injuries to his shoulders. The first injury occurred to his right shoulder in 1992, and after surgery in August 1992, he returned to work in the late fall of 1993. In early 1994, Peters injured his left shoulder when he was thrown against the windshield of his truck while plowing snow. He underwent surgery for this injury as well and missed work from June 1994 through March 1995, when he was terminated.

While Dr. Thomas G. Hoeft provided Peters' medical care following his second injury, the City's workers' compensation insurer sent Peters to Dr. Ronald C. Rudy for an independent medical evaluation on September 1, 1994. Dr. Rudy's report indicated that Peters could return to work after one month and with no restrictions following Peters' completion of physical therapy. On October 6, 1994, however, Dr. Hoeft recommended that Peters return to light duty with restrictions prohibiting Peters from lifting over thirty pounds, repetitive shoveling, and overhead use of the left hand.

On November 17, 1994, Peters met with his supervisor, Patrick Giesendorfer, the Director of Public Works, to discuss his ability to return to work and the conflicting doctors' reports. Giesendorfer informed Peters that he needed to secure a release from Dr. Hoeft because Dr. Hoeft was Peters' personal physician and had indicated that Peters still had some work restrictions. Peters told Giesendorfer that he had been working hard during his time off by painting three rooms and varnishing the floors in his house, cleaning out his garage, and building deer stands.

On November 21, 1994, Devin Willi, the City Administrator, wrote to both Peters and Dr. Hoeft requesting that Peters undergo a functional capacity evaluation, which would determine Peters' work capabilities and restrictions, and that Peters secure a work release from Dr. Hoeft. Dr. Hoeft did not respond to Willi's letter of November 21. On both December 28, 1994, and February 20, 1995, Willi again wrote to Dr. Hoeft seeking confirmation of Peters' status and the scheduled functional capacity evaluation. Dr. Hoeft did not immediately reply to either request. On February, 21, 1995, Willi wrote to Peters and informed him that it was his (Peters') responsibility to secure the report and release from Dr. Hoeft.

Dr. Hoeft finally forwarded the results of Peters' functional capacity evaluation to Willi on February 22, 1995. The report indicated that during an eight-hour work day, Peters could work with the following restrictions: 1) that he could never lift or carry anything in excess of fifty pounds; 2) that he could occasionally (11-30% of the day) lift or carry between twenty-one and fifty pounds; 3) that he could frequently (31-70% of the day) lift or carry between eleven and twenty pounds; 4) that he could continuously (71-100% of the day) lift or carry between one and ten pounds; and 5) that he could occasionally (11-30% of the day) shovel. Dr. Hoeft also determined that during an eight-hour work day Peters could use his left arm and shoulder continuously for only two hours and for no more than six hours total. The report indicated that these restrictions were permanent and that Peters fell into a "medium demand" job classification. Finally, Dr. Hoeft stated that if Peters "were likely to have additional demands placed on him, and in an unpredictable way, he might be better served by seeking a different occupation."

On February 28, 1995, Willi and Giesendorfer discussed the report with Peters. At this meeting, Peters expressed his interest in returning to work as well as his concern about performing some of the job's functions. Willi then took Dr. Hoeft's report and a summary of the February 28 meeting to the City's Personnel Committee, which directed Willi to meet with Peters again and discuss every element of Peters' job ...


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