As further evidence of his disability, Howell points to a 1984 document from the Veterans' Administration granting him compensation for a twenty percent disability due to his spinal condition. Howell gave this document to Sam's Club when he applied for employment in October 1990. Four months after beginning his job, Howell filled out a tax document in which he wrote he had a twenty percent disability from a spinal disc impairment. In addition, Sam's Club received an award from the National Disabled American Veterans for hiring a disabled veteran (Howell), and Howell has had a Disabled American Veteran license plate on his car since 1984. As will be discussed below, the court finds that based on this evidence, no reasonable jury could conclude Howell was substantially limited in caring for himself, walking, or working during the time he was employed at Sam's Club.
1. CARING FOR ONESELF
Howell has failed to raise a genuine issue of material fact as to whether he was substantially limited in the ability to care for himself while he worked for Sam's Club. He has presented no medical evidence documenting his limitations; rather, he relies on his own affidavit in which he avers he needs assistance putting on his trousers and tying his shoes. However, Howell conceded that before his surgery in 1995, he used to walk 20-22 miles a day while at Sam's Club, was able to climb stairs, put his shoes and socks on, and take a shower by himself. (Howell Dep. pgs. 125-27). No reasonable jury could find that Howell was substantially limited in caring for himself while he worked for Sam's Club. See Hatfield v. Quantum Chem. Corp., 920 F. Supp. 108, 110 (S.D. Tex. 1996) (plaintiff not substantially limited in caring for himself when he can drive a car, groom himself, have lunch with friends, cook meals for himself and family, work in his yard, and clean his house).
As noted above, Howell walked 20-22 miles each day while at Sam's Club. He walked with a limp, but did not need a cane. (Howell Dep. pg. 123). Howell's contention that he was substantially limited in the major life activity of walking cannot prevail in light of Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir. 1996), in which the Third Circuit Court of Appeals affirmed summary judgment against Kelly. Kelly, who was discharged by his employer, alleged he was substantially limited in the major life activity of walking. The court found that Kelly, who could not walk more than a mile, could not jog, and had to pace himself climbing stairs, was not substantially limited in the major life activity of walking. Id. at 106. As was the case with Howell when he worked at Sam's Club, Kelly did not require any special devices like a cane or crutches to aid him in walking. Id. The court in Kelly relied in part on the ADA regulations, which state that "an individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking." Id., quoting 29 C.F.R. App. § 1630.2(j).
In the instant action, it is undisputed that Howell was able to walk 20-22 miles every day without any aid such as a cane or crutches while he worked for Sam's Club; consequently, this court concludes that no reasonable jury could find Howell was substantially limited in the major life activity of walking.
Howell also claims he is substantially limited in the major life activity of working. When faced with this claim, a court must determine if the plaintiff is:
significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. 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).
When determining if an individual is substantially limited in the major life activity of working, a court may consider the geographical area to which the individual has reasonable access. 29 C.F.R. § 1630.2(j)(3)(ii)(A). In addition, a court may consider "the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs)." 29 C.F.R. § 1630.2(j)(3)(ii)(B).
Howell avers that he could not lift over twenty-five pounds, frequently needed a second person's assistance in performing job-related tasks which most people could perform alone, and had to take his scheduled breaks due to back pain that continued down his left leg. (Howell Aff. PP 4, 8). According to Howell, he asked management for help performing his tasks when he had pain in his back and leg. (Howell Aff. P 9).
Despite these limitations, Howell testified at his deposition that he was able to carry out his job responsibilities.
Howell did not miss a single day of work at Sam's Club on account of his back impairment. (Howell Dep. pg. 110). Furthermore, Howell has not presented any evidence that Sam's Club personnel were dissatisfied with his ability to do the work assigned to him.
Howell claims his impairments disqualify him from performing heavy labor jobs so he is substantially limited in his ability to work. He relies on ADA regulations which state, "An individual who has a back condition that prevents the individual from performing any heavy labor job would be substantially limited in the major life activity of working because the individual's impairment eliminates his or her ability to perform a class of jobs." 29 C.F.R. App. § 1630.2(j).
Howell has not presented any medical or occupational support for his claim that he is unable to perform heavy labor jobs. While his affidavit states he has a limited range of motion and cannot lift over twenty-five pounds, these claims are also unsupported by medical documentation of any kind.
Moreover, Howell's impairments did not prevent him from carrying out his maintenance job duties while at Sam's Club, albeit with the occasional need for help from co-workers. See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995) ("The inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to substantial limitation of the activity of working."). Furthermore, Howell has not presented any evidence detailing the class of jobs from which he is foreclosed, i.e., the number and types of jobs utilizing similar training, knowledge, skills or abilities within his geographical area that he is disqualified from holding because of his impairment.
To the contrary, Howell testified that he held civilian jobs after he left the Navy in 1984 and, after being discharged from Sam's Club, held a job with a company that installed aluminum siding and windows. (Howell Dep. pgs. 109, 166-67).
While the court is sympathetic to the fact that Howell sometimes had to endure pain while he worked, there is simply not enough evidence to create a genuine issue of material fact as to whether Howell was substantially limited in the major life activity of working. Howell was able to carry out his job functions at Sam's Club and did not present any evidence that he was foreclosed from pursuing other jobs due to his impairments.
B. RECORD OF IMPAIRMENT
A plaintiff attempting to meet the second prong of the ADA disability definition -- having a record of impairment --must demonstrate "a history of, or [be] misclassified as having, a mental or physical impairment that substantially limits one or more major life activity." 29 C.F.R. § 1630.2(k). Howell asserts that the combination of his letter from the Veterans' Administration stating he had a twenty percent disability due to his spinal disc condition, the tax document that he filled out while working for Sam's Club, the award Sam's Club received for hiring a disabled veteran, and his Disabled American Veteran license plate are sufficient to create a genuine issue of material fact as to whether Howell has established a record of impairment. This court disagrees.
Howell argues that the Veterans' Administration letter is an administrative determination of disability that is entitled to recognition by this court. However, "records of disability findings and classifications made in other proceedings do not necessarily amount to a record of impairment" under the ADA. Dotson v. Electro-Wire Products, 890 F. Supp. 982, 990 (D. Kan. 1995). According to the ADA regulations:
The fact that an individual has a record of being a disabled veteran, or of disability retirement, or is classified as disabled for other purposes does not guarantee that the individual will satisfy the definition of "disability" under part 1630. Other statutes, regulations and programs may have a definition of 'disability' that is not the same as the definition set forth in the ADA and contained in part 1630. Accordingly, in order for an individual who has been classified in a record as 'disabled' for some other purpose to be considered disabled for purposes of part 1630, the impairment indicated in the record must be a physical or mental impairment that substantially limits one or more of the individual's major life activities.