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Angelina Povey v. City of Jeffersonville

October 4, 2012


Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:09-CV-00161-RLY-WGH --Richard L. Young, Judge.

The opinion of the court was delivered by: Coleman, District Judge.


Before RIPPLE and ROVNER, Circuit Judges, and COLEMAN, District Judge.*fn1

Angelina Povey injured her wrist while working as an attendant at the City of Jeffersonville ("Jeffersonville") animal shelter.

Jeffersonville ultimately terminated Povey's employ-ment. Povey brought this action under 42 U.S.C. § 12101 alleging that her termination violated the Americans with Disabilities Act ("ADA"). The district court granted Jeffersonville's motion for summary judgment, finding that Povey does not qualify as "disabled" under the ADA. We affirm.


As one of three adoption assistant/kennel attendants for the Jeffersonville animal shelter, Angelina Povey was responsible for cleaning the shelter, feeding and transporting the animals and assisting with animal adoptions. In addition to these duties, the job description for a kennel attendant noted that the position "may require the [employee] to lift objects heavier than 30 pounds for extended periods." Two or three adoption kennel attendants worked from Monday through Friday, one was assigned to work on Saturdays with the office manager and one worked alone on Sundays to tend to the animals. Given this schedule, Povey was required to work both Saturday and Sunday of every third weekend.

In October 2007, Povey injured her wrist moving a dog from one cage to another at the animal shelter. Povey reported her injury to her supervisor Harry Wilder ("Wilder"). Povey eventually had surgery on her wrist and underwent physical therapy to address the impairment through August 2008.

Shortly after Povey's injury, Kim Calabro ("Calabro"), Jeffersonville's Human Resources Director explained to Wilder that since the animal shelter did not have light duty positions available there was no requirement to provide Povey with an alternative assignment. Wilder, however, allowed her to continue to work, but limited her duties to assignments in the cat room and the infirmary. He also exempted Povey from working weekends because it would entail cleaning the entire animal shelter alone, including some lifting of heavy objects. Consequently, her co-workers were forced to work weekends more frequently and began to complain about the change in their work schedules.

In May of 2008, Povey reported to Calabro that one of her co-workers, Louis Hancock, had begun to harass her because of her work restriction and the effect it had on his work schedule. An investigation by a human resources consultant concluded that Hancock was not illegally harassing Povey. Nevertheless, to avoid friction, the animal shelter required Povey and Hancock to work in separate locations at all times. Failing to comply with this arrangement by either Povey or Hancock could have led to their termina- tion.

Despite the investigation and implementation of the separation policy, Povey reported that she felt harass- ment "behind her back" and filed a complaint against Hancock on August 8, 2008. During the same month, Jeffersonville received medical notice of Povey's permanent physical restrictions which prohib-ited repetitive hand movement and no lifting, pushing or pulling more than five pounds with her right arm.

After notice of the restrictions, Povey was placed on leave with pay to take effect on August 28, 2008.

Jeffersonville officials discussed Povey's restrictions and abilities, and determined that Povey could not perform the essential functions of adoption kennel atten- dant. Povey's employment was terminated following the meeting.

Following her termination, Povey filed a discrimination claim with the EEOC and a complaint alleging two claims of discrimination under the ADA against the City of Jeffersonville. Povey asserted that Jeffersonville failed to accommodate her disability and subjected her to dispa- rate treatment. Povey also claimed she was terminated in retaliation for her prior complaints of harassment and discrimination. Jeffersonville filed a motion for summary judgment as to both claims. The district court granted defendant's motion for summary judgment and dismissed Povey's claims finding that Povey failed to demonstrate that she was a qualified individual with a disability under the ADA. Specifically, the court found that Povey failed to present sufficient evidence to demonstrate that (1) her wrist injury impaired her from completing daily tasks; (2) her perceived impairment foreclosed her from accepting ...

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