The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Floyd E. Lytes claims that the District of Columbia Water and Sewer Authority ("WASA") discriminated against him when it refused to return him to work as a Wastewater Treatment Plant Operator and then terminated him, allegedly because of his physical disability. At the close of discovery, WASA moves for summary judgment on Count II of the Complaint, the only remaining claim in this case, which Mr. Lytes resists. The Court concludes that Mr. Lytes was not "disabled" within the meaning of the Americans with Disability Act ("ADA"), 42 U.S.C. §§ 12101 et seq., either at the time WASA denied him a light duty/sedentary position in September 2003, or when it terminated him in March 2004. The Court finds that Mr. Lytes' discharge, when he could not locate a vacant position at WASA for which he was qualified, was lawful. Accordingly, the Court will grant Defendant's Motion for Summary Judgment and dismiss Plaintiff's remaining claim with prejudice.
WASA manages water distribution and sewage collection in the District of Columbia and other parts of the D.C. metropolitan area. Wastewater is collected by the D.C. sewer system and from the Maryland and Virginia suburbs and delivered to the Blue Plains Advanced Wastewater Treatment Plant operated by WASA. The Plant, which is the largest advanced facility of its kind in the world, covers 150 acres and treats an average of 370 million gallons of wastewater per day. It has the capacity to treat 1.076 billion gallons of wastewater per day during inclement weather. The wastewater treatment process consists of primary treatment, secondary treatment, nitrification/denitrification, effluent filtration, chlorination/dechlorination, and post aeration.
A. Mr. Lytes' Employment with WASA
Mr. Lytes was hired as a Wastewater Treatment Plant Operator at the Blue Plains Treatment Plant on June 6, 1985, by WASA's predecessor, the D.C. government. He became an employee of WASA when that agency was created in 1996. His job duties consisted of "taking daily readings of equipment," obtaining and analyzing samples from all phases of the treatment processes, "hosing down tanks, and turning pumps on and off." Compl. ¶ 10. WASA requires its Operators "to be competent in performing" operating procedures and tasks as assigned "in any major area of the plant, including primary treatment, secondary treatment, nitrification, filtration and disinfection, sludge thickening, digestion, and dewatering." Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem."), Ex. C. During Mr. Lytes' tenure as a plant operator, the applicable job specified: "[c]onstant standing or walking for an eight hour shift may be required;" "[c]limbing is required to reach raised operating area;" [l]ifting of heavy or cumbersome objects is occasionally required;" and "working in awkward positions is occasionally required when performing cleaning, minor maintenance, and other duties as assigned." Id. Plant operators work indoors and outdoors in all weather conditions on a rotating shift schedule. Id. Operators may be "required to work mandatory overtime under unusual conditions." Id.
In connection with a disability retirement application, completed in December 2002, Mr. Lytes certified that his position as a Wastewater Treatment Plant Operator required him to perform "intensive physical duties on the job." Def.'s Mem., Ex. B (deposition transcript of Floyd Lytes ("Lytes Dep.")) at 178-83 & Exs. 11-12. Similarly, Mr. Lytes testified at his deposition that forty percent (40%) of the job duties of an Operator are not sedentary. Lytes Dep. at 99.
B. Mr. Lytes' Injury and Medical Treatment
While working on May 7, 2000, Mr. Lytes lifted a chair and "felt a sudden sharp pain in his lower back." Compl. ¶¶ 12-13. Several hours later, he felt "severe pain" in his lower back. Id. at ¶ 13. Medical tests revealed degenerative disc disease with a herniated disc. Id. at ¶¶ 14-15; see also Def.'s Mem., Ex. D (deposition transcript of James Tozzi, M.D. ("Tozzi Dep.")) at 7-8 & Ex. 1 at 1. Mr. Lytes underwent a lumbar diskectomy on December 8, 2000. Tozzi Dep. at 7-10 & Ex. 1 at 3-4. Six weeks later, Dr. Tozzi noted, "[G]iven his chronic disk degenerative process that is well seen on his studies, his obesity and the type of his work, we might have to consider having him find work in a less physically demanding job." Tozzi Dep. at 7-8 & Ex. 1 at 5.
Things went from bad to worse for Mr. Lytes when he suffered a heart attack and underwent an angioplasty on February 27, 2001. Tozzi Dep. at 18 & Ex. 1 at 6. His cardiologist released him to resume exercise in April 2001. Tozzi Dep., Ex. 1 at 6. Upon completion of his rehabilitation program, at the request of WASA's workers' compensation insurance carrier, Liberty Mutual, Mr. Lytes underwent an independent medical examination by Dr. James Callan on July 19, 2001. Tozzi Dep. at 23-25 & Ex. 2. Although Dr. Callan opined that Mr. Lytes was "capable of returning to his usual job with no restrictions other than to follow generally acceptable back principles when lifting, pushing, or pulling," Dr. Tozzi disagreed. Tozzi Dep. at 24-25 & Ex. 2. Dr. Tozzi recommended that Mr. Lytes "be restricted to light duty" and that he "avoid heavy manual labor and repeated bending, twisting, and lifting." Tozzi Dep. at 78, 23-24 & Ex. 1 at 9. Mr. Lytes continued to experience back pain and Dr. Tozzi recommended spinal fusion surgery, which occurred on June 5, 2002. Tozzi Dep. at 7-8, 33-36 & Ex. 1 at 10-16. On August 16, 2002, Dr. Tozzi endorsed Mr. Lytes' application for a Maryland handicap parking placard for six months, writing that he "is recovering from spinal surgery done by me on 6/5/02 and is unable to walk any distance at this time." Tozzi Dep. at 39 & Ex. 4.
On December 4, 2002, Mr. Lytes completed an Applicant Statement of Disability, in which he described his condition:
Due to my condition I have been forced into a sedentary lifestyle. As a result of my injury, basic everyday tasks have become arduous feats. I am not able to bend or lift more than 5 pounds. I am in constant discomfort regardless of whether sitting or standing. I am unable to sleep through the night without waking up in pain. My physical ability has been greatly curbed due to my condition. I am also unable to walk short distances, climb stairs, stretch, or reach without pain.
Lytes Dep. at 178-83 & Exs. 11-12. Despite this application, Dr. Tozzi cleared Mr. Lytes for sedentary duty and released him to return to work in a "sedentary job" on January 6, 2003. Tozzi Dep. at 7-8, 41, 51-52. Dr. Tozzi indicated that Mr. Lytes could stand or walk for a maximum of 2 to 4 hours during an 8-hour shift, could lift 5 to 10 pounds occasionally, but could not bend or squat. Tozzi Dep. at 44-48 & Ex. 5. At the request of Liberty Mutual, Mr. Lytes was examined by Dr. Callan on January 10, 2003, after which Dr. Callan again concluded that Mr. Lytes was capable of returning to work with no restrictions other than to follow generally accepted back principles. Def.'s Mem., Ex. E (deposition transcript of Tanya DeLeon ("DeLeon Dep.")) at 49-51 & Ex. 2.
Obviously, Drs. Tozzi and Callan had divergent views on Mr. Lytes' condition as of January 2003. As a result, Liberty Mutual sought and received Dr. Tozzi's authorization for Mr. Lytes to undergo a functional capacity evaluation, which is designed to assess an individual's physical capabilities and limitations. Tozzi Dep. at 53-54 & Ex. 7. As part of that evaluation, Mr. Lytes reported that "he spends 20% of his day lying down, 60-70% of his day sitting; 10-20% of his day standing and walking." Tozzi Dep. at 54-55 & Ex. 8. He also stated that he engages in such activities as "driving his mother to church at 10 am and bringing her back at 11 am; reading the paper; walking either outside in his neighborhood or inside on his treadmill for a total of 15 minutes and sometimes more at least twice a day; watching tv; [and] doing some light cleaning." Tozzi Dep., Ex. 8.
During the functional testing, Mr. Lytes "demonstrated mild restricted standing and walking tolerances as well as functional deficits in squatting, bending, ladder climbing, and overhead reaching." Tozzi Dep. at 54-55 & Ex. 8. In particular, he stood for 18 minutes, sometimes leaning on furniture; walked one-half mile in 12 minutes, although he experienced some low back pain; lifted objects that ranged in weight from 5 to 15 pounds; pushed and pulled objects weighing 45 and 43 pounds, respectively; did not complete the bending, climbing and reaching tasks due to pain; and refused to crawl or kneel. Tozzi Dep., Ex. 8.
Mr. Lytes described "his previous full duty job as a Waste Water Plant Operator at the MEDIUM Physical Demand Level with the requirement to occasionally lift and carry objects weighing up to 50 [pounds]. And to occasionally perform custodial duties as well as to do light repair work as needed." Id. The functional testing placed him at "the ...