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Bigby v. Big 3 Supply Co.6/13/1996
In this action premised, inter alia, on an alleged violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (1994), plaintiff, Roland Bigby, appeals the summary judgment entered in favor of his employer, Big 3 Supply Company (Big 3). Defendants, Big 3, McMillan Sales Corporation (McMillan), and Michael Maslanik, cross-appeal the judgment entered upon a jury verdict in favor of Bigby on his claims for outrageous conduct and negligent infliction of emotional distress. We reverse and remand for further proceedings.
Bigby, a journeyman plumber, was hired in 1991 by Big 3, a supplier of building materials, as a truck driver and warehouse person. Bigby's supervisors occasionally loaned him to transport materials for McMillan, another building supply company under the same management as Big 3.
In late 1992, Bigby suffered a heart attack. His doctors discharged him from the hospital after about a week of recovery with instructions that he could return to work in another week, provided he took things slowly at first. Bigby kept his supervisors informed of his condition and asked when and under what conditions he could return to work.
Bigby next saw his supervisors at the Big 3 company Christmas party. They took Bigby aside and informed him that Big 3's president, Michael Maslanik, had decided to fire him because of the heart attack. Without consulting Bigby or his doctors, Maslanik had decided Bigby could not perform the strenuous loading and unloading that the warehouse and truck driving involved, and that the company had no other positions for which he was qualified. Big 3 sent Bigby a follow-up letter confirming that: "Roland Bigby was terminated from our employ because of health reasons + management determined he was not qualified for any other position."
Bigby filed a charge of discrimination with the Equal Employment Opportunity Commission, which forwarded the claim to the Colorado Civil Rights Commission (Colorado Commission). The Colorado Commission determined that Bigby's employers had regarded him as disabled because of the heart attack and had fired him because of this disability in violation of the Colorado Anti-Discrimination Act, § 24-34-402 (1988 Repl. Vol. 10A) (CADA). Based upon this determination, the Colorado Commission sent Bigby a right to sue letter.
Bigby then filed suit against Big 3, its president Michael Maslanik, and Maslanik's other supply company, McMillan. Bigby alleged that his firing violated the ADA, the CADA, and also constituted outrageous conduct and negligent infliction of emotional distress.
At the time of Bigby's termination, the ADA applied only to employers with 25 or more employees. 42 U.S.C. § 12111(5) (1994); see Doe v. William Shapiro, Esquire, P.C., 852 F. Supp. 1246 (E.D. Pa. 1994) (explaining jurisdictional thresholds under the ADA). And, although McMillan had more than 25 employees, Big 3 did not. In order to meet the ADA's jurisdictional threshold, Bigby alleged that he was an employee of McMillan as well as Big 3. The trial court rejected Bigby's combined employer theory and entered summary judgment for McMillan.
Bigby proceeded to trial on his CADA and tort claims against Big 3 and Maslanik. The trial court acted as finder of fact on the CADA claim, while a jury decided his tort claims.
The evidence at trial showed that Maslanik decided to fire Bigby on the presumption that his heart attack prevented him from working. Maslanik did not seek information concerning Bigby's actual medical condition, did not attempt to provide any reasonable accommodation for Bigby, and did not consider the fact that Bigby was qualified to wor
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