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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : : : : : : : MEMORANDUM Plaintiff Dennis Kelly was an employee of Sasol North America, Inc. ("Sasol") from 2001 to 2004. Kelly alleges that Sasol violated the Americans with Disabilities Act ("ADA") when Sasol refused to allow him to return to work after he suffered a flare-up of a preexisting back condition, and eventually forced him to retire rather than be terminated. Now pending before the Court is a motion by Sasol for summary judgment. The parties have fully briefed the motion and no hearing is necessary. Local Rule 105.6. For the reasons stated below, the defendant's motion will be granted in full. BACKGROUND Sasol is an integrated producer of commodity and specialty chemicals. It has manufacturing facilities in several locations, including a chemical plant in Baltimore, Maryland. Kelly was employed by Sasol from 2001 to July 23, 2004.1 He held various positions at the Baltimore plant over the years, including that of general laborer, operator, pumper, and chlorinator. In 1992, he became a safety helper, and in 1998, he became a safety technician. In or about February 2003, the Baltimore plant was restructured and a number of employees were

DENNIS KELLY v. SASOL NORTH AMERICA, INC.

Civil No. CCB-05-1171

Kelly began working at the Baltimore plant in 1978. Before Sasol purchased the plant in 2001, he was employed by the plant's previous owners, Conoco Chemicals and Vista Chemicals. 1

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laid off or offered early retirement. With the restructuring, Kelly's safety technician position was eliminated, and he was assigned to a newly created position called multi-skill mechanic. Multi-skill mechanics were required to become proficient in three separate crafts, as well as a host of "major" or "core" responsibilities. Because Kelly was just starting in the position, he only was qualified to perform the "major" responsibilities of the position. These included, but were not limited to: heat exchanger work; removal and installation of filter materials throughout the plant; general labor duties such as cleaning tanks, yard clean-up, digging, tower packing, etc.; operating forklifts to move parts and equipment; and taking prompt and appropriate action in response to SHE (safety, health, and environmental) incidents, such as fires. In April 2003, Kelly experienced a flare-up of a preexisting back condition that he had suffered from since approximately 1979. Kelly subsequently was diagnosed with spinal arthritis with disc disease and disc herniations. Because of this flare-up, Kelly was forced to take leave on or about April 21, 2003. Kelly was unable to work for most of May and June 2003. He returned to work on or about June 20, 2003, but had another flare-up of his back condition on or about July 24, and was again forced to take leave. Beginning on or about August 7, 2003, Kelly was treated by Dr. Melinda Ann Roth. Kelly submitted regular Work/Activity Status Reports from Dr. Roth while he was off work in August and September 2003. As of October 3, 2003, Kelly remained unable to work. On or about September 2, 2003, Dr. Roth referred Kelly to Dr. Scott Cole for epidural steroid injections. Prior to this treatment, Kelly had not experienced any significant relief from the symptoms of his back condition. Kelly received two injections prior to October 17, 2003,

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and as a result experienced some relief from his symptoms. In her treatment notes from October 17, 2003, Dr. Roth described the improvements in the symptoms Kelly was experiencing, but noted that once he returned to work, he should engage in a work hardening program. Dr. Roth also noted that Kelly should not perform work that was directly overhead, causing his back to arch. On that same date, however, Dr. Roth completed a work/activity status report indicating that Kelly could return to work without restrictions on October 20, 2003. Sasol employees who miss work due to an injury or illness receive their full rate of pay for three months. Only after an employee misses 90 consecutive calendar days is his compensation reduced to half-pay. If an employee returns to work at any time prior to missing three consecutive months, the 90-day clock starts over again and the employee does not face the pay reduction for another three months. On October 7, 2003, Sasol human resources representative Joe Ann Williams sent Kelly a letter informing him that effective October 21, 2003, he would begin receiving half his rate of pay. Shortly thereafter, Kelly submitted the report from Dr. Roth stating that he could return to work with no restrictions. Sasol found the timing of the report to be suspicious, as it was submitted shortly after Sasol notified Kelly that his pay would be reduced. Accordingly, Williams asked Kelly to send his medical records to Dr. Bonnie New, Sasol's corporate medical manager. Dr. New then reviewed the records and requested further information from Dr. Roth. Dr. Roth responded to Dr. New in writing, and in a subsequent telephone conversation, Dr. Roth clarified her letter, explaining to Dr. New that Kelly should not engage in overhead work that required back extension. Dr. Roth also recommended that Kelly participate in a work hardening program given

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the strenuous nature of his job. By letter dated December 1, 2003, Sasol notified Kelly that he would not be allowed to return to work. This decision was made based on Dr. New's correspondence and her conversation with Dr. Roth. Sasol gave three reasons for this decision. First, Sasol found that: after discussion with your physician, our medical director advised us that you will continue to have permanent work-related job limitations, specifically the restricted ability to perform overhead work. This task is one of the essential functions of your job. Def. Mot. Summ. J., Ex. J. Second, Sasol claimed that based on the fact that Kelly had missed a significant amount of time since April 2003, "it is clear to us that you are unable to routinely attend work." Id. Third, Sasol found that "there are no open alternative jobs to assign you to at this time." Id. Accordingly, Sasol directed that Kelly would be on medical leave until July 23, 2004, at which time he would be terminated. Kelly responded by insisting that he could return to work

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Maryland Law