STEPHEN H. ANDERSON, Circuit Judge.
Plaintiffs both worked for Scrivner as grocery selectors in Scrivner's grocery warehouse, where both had previously sustained various on-the-job injuries. In 1992, Scrivner established new production standards which required plaintiffs to accomplish their jobs in a shorter amount of time. When plaintiffs were unable to meet the pace of the new standards, they were discharged.
We begin with a summary overview, addressing the district court's conclusions regarding preemption and its effect on the various state-law claims presented, and the import of the district court's conclusion that plaintiffs are not eligible for relief under the ADA.
Plaintiffs' complaints base jurisdiction on the Americans with Disabilities Act. Each of the three counts in the complaints allege some injury to plaintiffs as a result of defendant's allegedly illegal disability discrimination. While overlapping and redundant, as best we can determine, plaintiffs allege a federal claim for violation of the ADA, a state claim for wrongful termination under Oklahoma law, and various state and federal claims flowing from the unlawful discrimination and alleged violations of the collective bargaining agreement between plaintiffs' union and defendant. All claims are thus dependent upon a finding that defendant illegally discriminated against plaintiffs because of their disabilities. See Milton Supp.App. at 1-5; Massey Appellant's App. at 1-5 (Complaints).
To the extent plaintiffs allege state claims based on defendant's actions which they deem in violation of their rights under the collective bargaining agreement, the district court was correct to conclude that those claims are preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and are, therefore, determined exclusively by reference to federal law. While we disagree with the district court that plaintiffs' state
§ 301 Preemption of State Claims
Saunders v. Amoco Pipeline Co., 927 F.2d 1154, 1155 (10th Cir.) (citations omitted), cert. denied, 502 U.S. 894, 112 S.Ct. 264, 116 L.Ed.2d 217 (1991). If evaluation of a state claim is "inextricably intertwined" with consideration of the terms of a collective bargaining agreement, and/or if state law "purports to define the meaning of the contract relationship, that law is preempted." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985). Thus, to the extent plaintiffs' state law claims are based on defendant's actions which they deem to be in violation of the collective bargaining agreement, their state claims are preempted by § 301 and are determined according to federal law.
Plaintiffs' State-Based Discrimination Claims
Plaintiffs' state law tort claims of wrongful disability discrimination are another matter. In contrast to plaintiffs' claims regarding violation of the collective bargaining agreement, plaintiffs' claims that they were discriminated against because of their disabilities and contrary to the law of Oklahoma can be resolved without reference to the collective bargaining agreement. If plaintiffs are able to meet all the elements necessary to sustain such a claim, they prevail under Oklahoma law irrespective of the terms of any labor agreement. Thus, as in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410 (1988), "the state-law remedy in this case is `independent' of the collective-bargaining agreement in the sense of `independent' that matters for § 301 pre-emption purposes: resolution of the state-law claim does not require construing the collective-bargaining agreement." Plaintiffs' state law discrimination claims, therefore, are not preempted by § 301. This is true "notwithstanding the fact that `the state-law analysis might well involve attention to the same factual considerations'" that might be involved in determining the federal issues. Davies v. American Airlines, Inc., 971 F.2d 463, 466 (10th Cir.1992) (quoting Lingle, 486 U.S. at 408, 108 S.Ct. at 1883), cert. denied, ___ U.S. ___, 113 S.Ct. 2439, 124 L.Ed.2d 657 (1993). The fact that plaintiffs' state law claims are not preempted by federal law, however, does not mean that plaintiffs can therefore avoid summary judgment on these claims.
Although not specifically cited by plaintiffs as a basis for their claims, we presume they would proceed under Okla.Stat. Ann. tit. 25 § 1302, which provides in pertinent part:
Okla.Stat.Ann. tit. 25, § 1302. As will be discussed below, defendant has produced evidence that the speed now required in the grocery selector job is a "bona fide occupational qualification reasonably necessary to the normal operation of [defendant's] business," and that defendant's termination of plaintiffs was related to that qualification. Milton Appellant's App.Vol. I at 103, Vol. II at 285-90; Massey Appellant's App.Vol. I at 96, Vol. II at 178-82. Because plaintiffs have presented no evidence that would raise a genuine issue of material fact regarding this matter, plaintiffs could not prevail on their state employment discrimination claims as a matter of law. Summary judgment in favor of defendant, therefore, was appropriate.
Federal Claims Involving the Collective Bargaining Agreement
As will be more fully developed below, we agree with the district court that plaintiffs are not "qualified person[s] with a disability." Therefore, because defendant has not illegally discriminated against plaintiffs based on their alleged disabilities, all claims of violation of the collective bargaining agreement stemming from that same theory also fail.
Plaintiffs initially argue that the district court erred in refusing to consider discovery evidence amassed in other ADA cases involving Scrivner's grocery selector operation. They particularly urge that the evidence in Bolton v. Scrivner, 836 F.Supp. 783 (W.D.Okla.1993), aff'd 36 F.3d 939 (10th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995), should have been considered by the district court.
Fed.R.Civ.P. 32(a)(4) provides, in relevant part:
In response to plaintiffs' attempt to use deposition evidence from Bolton, the district court addressed the substantive differences between their cases and Bolton, see Milton Appellant's App.Vol. II at 417; Massey Appellant's App. Vol. II at 416-17, and implied that the cases are not sufficiently similar to Bolton to warrant joint use of deposition testimony. That conclusion notwithstanding, the district court further stated that it had "reviewed the items of evidence taken in the other cases and concludes that even if allowed, this material does not establish the existence of disputed material facts that preclude the entry of summary judgment." Milton Appellant's App. Vol. II at 417; Massey Appellant's App. Vol. II at 417. Thus, because the district court did consider the contested material and because that material is also included in the record on appeal and has been reviewed by us, any error in the district court's treatment of the contested deposition evidence is harmless.
In its motion for summary judgment on plaintiffs' ADA claims, Scrivner contended that plaintiffs were not "disabled persons" under the ADA. Alternatively, Scrivner argued
In granting Scrivner's motion for summary judgment against Mr. Milton, the district court held that, because Mr. Milton had earlier stated under oath that he was not limited in his ability to work, he had "failed to establish a prima facie case for discrimination under the ADA as he was not a `disabled person.'" Milton Appellant's App. Vol. II at 423. Mr. Massey, in contrast, had argued that defendant's failure to offer him another job before terminating him was evidence of discrimination. The district court held that this claim of disability also failed because Mr. Massey had been unable "`to demonstrate that he is disabled in some more general sense transcending his specific job, that his limitations substantially impair a major life activity.'" Massey Appellant's App. Vol. II at 422 (quoting Bolton, 836 F.Supp. at 788). Alternatively, in each case, the court found that the new production standards constituted an essential part of the selector job, and that plaintiffs' suggested accommodations were not feasible.
In order to sustain a claim under the ADA a plaintiff must establish
White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). "The term `disability' means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); see also Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). Plaintiffs argue that they are disabled and additionally that they have a record of a disability and were regarded by Scrivner as being disabled. Milton Appellant's Br. at 22; Massey Appellant's Br. at 21, 25. We do not reach the issue of whether plaintiffs meet the definition of disability under the ADA, because we agree with the district court that neither plaintiff satisfies the second element required of an ADA claimant, namely that they are "qualified individual[s] with a disability," see 42 U.S.C. § 12111(8), who are covered under the Act.
"The ADA defines a `qualified individual with a disability' as `an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.'" White, 45 F.3d at 360 (quoting 42 U.S.C. § 12111(8)). This court has endorsed a two-part analysis for determining whether a person is qualified under the ADA:
Id. at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994)).
The selector job involves taking orders for quantities of warehouse items and loading these items in the correct amounts onto pallets. Plaintiffs' jobs basically amount to
The regulations implementing the ADA define essential functions as "those functions that the individual who holds the position must be able to perform unaided or with the assistance of a reasonable accommodation." 29 C.F.R. Pt. 1630, App. § 1630.2(n); see also White, 45 F.3d at 361 (defining essential functions as those that "`bear more than a marginal relationship to the job at issue'") (quoting Chandler, 2 F.3d at 1393).
The initial inquiry in determining whether a job requisite is essential is whether an employer actually requires all employees in the particular position to perform the allegedly essential function. See 29 C.F.R. Pt. 1630, App. § 1630.2(n). An employer's judgment is also relevant evidence to be considered, as are the terms of any collective bargaining agreement. Id. This inquiry is not intended to second guess the employer or to require him or her to lower company standards. Id.
EEOC Technical Assistance Manual at II-18 (1992). It is a defense to a charge that a standard screens out disabled persons that the standard is "job-related and consistent with business necessity." 29 C.F.R. § 1630.15(c).
There is evidence in the record that the new production standards were implemented to improve Scrivner's competitiveness in the marketplace. Milton Appellant's App. Vol. II at 285; Massey Appellant's App. Vol. II at 178. The changes were aimed at increasing efficiency and productivity and have done so. Milton Appellant's App. Vol. I at 103; Massey Appellant's App. Vol. I at 96. Performing the selector job with speed and quality was viewed by Scrivner's management as essential, and the policy was applied to all selectors. Milton Appellant's App. Vol. I at 103; Massey Appellant's App. Vol. I at 96. Contrary to plaintiffs' implication, the fact that defendant made changes to its business in order to increase profit is not an impermissible action under the ADA.
Although ordinarily a fact question to be decided on a case-by-case basis, see 29 C.F.R. Pt. 1630, App. § 1630.2(n), plaintiffs have presented no evidence to rebut the conclusion that speed is essential to the selector job. Further, because plaintiffs have testified that they cannot meet the new production standards, they are unable to perform an essential function of the job without accommodation. "Thus we must consider whether [plaintiffs have] demonstrated a genuine issue of fact regarding [their] ability to perform the essential functions with reasonable accommodation." White, 45 F.3d at 362.
"Once the plaintiff produces evidence sufficient to make a facial showing that accommodation is possible, the burden of production shifts to the employer to present evidence of its inability to accommodate." Id. at 361. The only evidence advanced by plaintiffs to show that accommodation is possible is their unsupported personal conclusions regarding changes to their jobs. We do not decide whether this is sufficient to make a "facial showing that accommodation is possible," see id. Instead, we conclude that Scrivner has presented unrebutted evidence of its inability to accommodate plaintiffs' disabilities.
Plaintiffs suggest an altered or reduced production standard for them, the designation of a lighter work load, or allowing them to bid for other jobs within the company that they could perform. We agree with the district court, however, that none of these accommodations are "reasonable." Altering or reducing defendant's production standards or allowing plaintiffs to move only the lighter loads is more accommodation than is reasonable for this defendant.
An employer is not required by the ADA to reallocate job duties in order to change the essential function of a job. See 29 C.F.R. Pt. 1630 App. § 1630.2(o); Gilbert
Plaintiffs' final suggestion, that they be allowed to transfer to another job, is also unreasonable. Initially, we note that Mr. Milton has not provided a description of any other jobs that would accommodate his disability. He merely speculates that he could probably transfer to something else. Mr. Massey vaguely alludes to possible jobs as a warehouseman, a salesman, or a clerk. Massey Appellant's App. Vol. II at 276-77. To the extent that any such transfer would be a promotion, the ADA does not require this accommodation from defendant. See 29 C.F.R. Pt. 1630 App. § 1630.2(o). Additionally, plaintiffs' collective bargaining agreement prohibits their transfer to any other job because plaintiffs lack the requisite seniority.
While we must resolve doubts in favor of the parties opposing summary judgment, plaintiffs' conclusory allegations are insufficient to defeat Scrivner's adequately supported motion. See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994). In order to be entitled to the protection of the ADA, plaintiffs are required to demonstrate that they are "qualified person[s] with a disability." White, 45 F.3d at 363. Because plaintiffs have produced no evidence that accommodation was possible, the district court properly granted summary judgment to Scrivner.
The judgments of the United States District Court for the Western District of Oklahoma are AFFIRMED.