TERENCE C. KERN, District Judge.
Before the Court is Defendant Terra International (Oklahoma), Inc.'s ("Terra") Motion for Summary Judgment (Doc. 39). For reasons set forth below, such motion is granted.
The following facts are either undisputed or construed in a light most favorable to Plaintiff. Plaintiff Jared Marsh ("Marsh") is a 34-year old male who served in the U.S. Army on active duty for two years and eleven months. On or around May 10, 2007, Marsh was honorably discharged due to disability and received approximately $12,000 severance pay. He received a Certificate of Release or Discharge From Active Duty ("Certificate of Discharge"), which lists his disability rating as 0%.
In early 2007, prior to his discharge, Marsh underwent arthroscopic surgery on his right knee at a veterans' hospital. He continues to do physical therapy at home every morning and wears a knee brace two to three times a week as needed for pain and stability. Marsh testified that his knee is "unstable," that it "buckles and gives out at times," and that he has fallen while carrying his daughter due to his knee buckling. (Marsh Dep. 47:6-10, Ex. 2 to Resp. to Mot. for Summ. J.) He further stated:
(Id. 49:8-14.) Marsh does not take any medication for his knee injury. Marsh admitted that, despite his knee injury, he "still [does] pretty much everything, just sometimes at a slower pace." (Id. 51:18-21.)
While being treated at the veterans' hospital, the doctors also informed Marsh that
In March 2010, Marsh called the Department of Veterans Affairs ("VA"). Progress notes from the call indicate that Marsh's job was exacerbating his knee condition and that he went to the emergency room the previous day because his knee buckled. (Def.'s Mot. for Summ. J., Ex. 6.5.) On June 28, 2010, Marsh again called the VA and reported that "jobs are not working out due to his knee giving out on him." (Id., Ex. 6.8.) In July 2010, Marsh wrote a letter to the VA stating that he disagreed with his disability rating of 0% and that he was having "increased difficulty holding a job for both physical reasons (my knee) & mental (PTSD/TBI)." (Id., Ex. 6.9.) In November 2011, one month before he applied for employment with Terra, Marsh visited a veterans's center and spoke with a vocational rehabilitation counselor who reported to the VA that Marsh "continuously looses [sic] jobs ... because he falls frequently due to a knee disability." (Id., Ex. 6.10.)
In December 2011, Marsh applied for employment with Terra at its facility in Verdigris, Oklahoma, which manufactures and distributes ammonia products for industrial and agricultural use. Marsh interviewed with Tink Crenshaw ("Crenshaw"), a human resources manager. He filled out a medical history and provided his Certificate of Discharge to Crenshaw. The medical history completed by Marsh did not disclose the knee injury, knee surgery, or back injury, despite the form asking for hospitalizations, surgeries, or other significant injuries. Terra hired Marsh on December 27, 2011 as a shipping technician at a starting salary of $18.18/hour. After undergoing a preemployment physical, Marsh was declared able to perform his job duties without any restrictions or limitations.
Terra's Verdigris facility operates seven days a week and twenty-four hours a day, with four different twelve-hour shifts. Shipping technicians work four shifts and then have four days off, alternating day and night shifts. Shipping technicians load hazardous liquids into railcars, trucks, and barges to fulfill customer orders, typically working in teams of four people consisting of three regular employees and one new-hire trainee. A shipping technician follows these general steps when loading product into a railcar: (1) "spot" the railcar by hooking the railcar to a switch engine and positioning it for loading; (2) disconnect the switch engine and move it a safe distance away; (3) inspect the railcar, including removing the belly cap located underneath the railcar; and (4) climb stairs to the top of the loading rack and hook up the piping used to load the railcar. Shipping technicians climb stairs to a
Shipping technicians run "loading pumps" to get product into the pipeline that is attached to the railcar, truck, or barge. A "board operator" communicates with shipping technicians to tell them whether to run one loading pump or two loading pumps at any given time. Running two loading pumps increases productivity but requires the crew to move more quickly to prevent overheating of the pumps. It is not predictable whether railcars, trucks, or barges will need loaded during any given shift or how many of each will need loaded.
Marsh worked the "2A shift" throughout his employment. He was supervised by Tony Cloud ("Cloud") from his start date until December 2012, when Cloud retired. Beginning December 2012, Marsh was supervised by Mark Dees ("Dees"). During relevant times, Bill Brown ("Brown") was the Production Manager at the Verdigris facility. Prior to Dees taking over supervision of Marsh, Marsh had informed Cloud of his bad knee.
At the end of Marsh's ninety-day probationary period, Cloud rated him as "good" in all areas, stated that Marsh "works very hard and is willing to learn," and recommended him for permanent employment. (Resp. to Mot. for Summ. J., Ex. 8.) On December 21, 2012, after being employed one year, Brown sent an email to Crenshaw approving a salary increase from Level 1 to Level 2 and stating that Marsh met all qualifications and performance expectations. (Id., Ex. 10.) On January 25, 2013, Dees completed a performance appraisal and concluded that Marsh met expectations in all areas.
At some point after Dees took Cloud's position, Dees concluded that the 2A shift was less productive than other shifts because it was not running two loading pumps as frequently as other shifts. In March 2013, Dees instructed the lead technician for the 2A shift to run two pumps when possible, to communicate to the board operator when they only needed one pump, and to enter into the logbook when they had only one pump running instead of two. Approximately ten minutes after Dees gave this direction, Marsh came into Dees' office and asked if Cloud had informed Dees that Marsh was a disabled veteran. Marsh expressed his concerns about his ability to run two pumps due to his bad knee. Marsh worked for the next three days operating two pumps but had trouble keeping up, and the board operator had to repeatedly stop the pumps and reset them due to overheating. Marsh stated in his deposition that he "was just not moving fast enough." (Marsh Dep. 61:6-8, Ex. 1 to Mot. for Summ. J.)
On Thursday, April 4, 2013, Dees and Gary Collins ("Collins"), the facility's Production Manager, met with Marsh and questioned him about his knee injury. The following day, Marsh provided Collins another copy of his Certificate of Discharge. According to a summary email sent by Collins to Crenshaw and Brown on April 5, 2013, Marsh told Collins that he "was considered 70% disabled by the military due to knee and back injuries and that this impaired his ability to perform duties of the Shipping Technician equal to the other Technicians." (Def.'s Mot. for Summ. J., Ex. 4-14.) Collins and Dees placed Marsh on paid leave while they reviewed the situation. In this email, Collins recommended Marsh's termination due to Marsh's "lack of disclosure of his physical disability, and the significant risk of injury to [Marsh] by continuing these duties." (Id.)
Collins' email was forwarded to Wendy Jablow Spertus ("Spertus"), Terra's Senior
Marsh saw the IME, Dr. Mitchell Martineau ("Martineau"), on April 10, 2013. Martineau's notes from the visit provide:
(Resp. to Mot. for Summ. J., Ex. 11.)
Marsh went to a follow-up appointment with Martineau on April 26, 2013. Martineau made three "assessments" and suggested corresponding treatments:
On May 21, 2013, Marsh attended a meeting with Dees, Collins, and Crenshaw. Terra's transcription of this meeting, which Marsh attached as evidence to his response brief and apparently does not dispute, provides:
(Resp. to Mot. for Summ. J., Ex. 7 (emphases and footnote added).)
After being made aware of what occurred at the meeting and Martineau's medical conclusions, Spertus made the decision to terminate Marsh's employment for the following reasons:
(Spertus Dep. 63:22-64:24, Ex. 4 to Mot. for Summ. J.) Marsh received a termination letter on June 10, 2013, summarizing Spertus' decision and concluding that Terra was "left with no alternative but to terminate [his] employment" because the
A summary document placed in Marsh's personnel file following his termination provides: "The results [of the IME] indicated nothing to preclude him from performing the outlined job tasks. He indicated a requested accommodation of allowing him to only run one loading pump. This was not a reasonable accommodation.... He was terminated for unacceptable performance...." (Id., Ex. 14.)
On July 7, 2014, after Marsh had worked for two other employers following Terra, Marsh applied for "Increased Compensation Based on Unemployability" with the VA ("Disability Application"). The form states that Marsh's back injury is the service-connected disability preventing him from gaining employment. In the "remarks" section, the form states that Marsh was told he would "only stay employed (as temporary status) if [he] agreed to perform additional physically demanding labor, which I could not perform due to pain." (Mot. for Summ. J., Ex. 6.11.) Because Marsh was employed by another entity at the time of the Disability Application, it is not clear whether Marsh was referring to his employment with Terra or his then-current employer.
On August 13, 2014, Marsh's attorney sent a letter to the VA providing notice of disagreement with a June 9, 2014 rating decision and again stating that Marsh was entitled to compensation based on unemployability. However, this letter mentions a bowel condition and does not mention Marsh's knee or back injury. The June 2014 "rating decision" mentioned in this letter is not part of the record, and there is no testimony regarding what, if any, action the VA has taken in relation to Marsh's Disability Application.
Marsh filed his Complaint on February 10, 2014, asserting three claims: (1) that Terra discriminated against him based on disability; (2) that Terra failed to make a reasonable accommodation for his disability; and (3) that members of Terra's management intentionally inflicted emotional distress upon him. Terra moved for summary judgment on all claims. In his response brief, Marsh abandoned his intentional infliction of emotional distress ("IIED") claim.
Summary judgment is proper only if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir.2006). The Court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking to overcome a motion for summary judgment may not "rest on mere allegations" in his complaint but must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The party seeking to overcome a motion for summary judgment must also make a showing sufficient to establish the existence of those elements essential to that party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-33, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Congress passed the Americans with Disabilities Act Amendments Act of 2008
Inexplicably, Marsh's counsel did not rely upon the ADAAA or the new regulations promulgated thereunder. (See, e.g., Resp. to Mot. for Summ. J. 18-22 (citing pre-amendment standards).) `Marsh's counsel are experienced federal discrimination lawyers, and their failure to recognize that Congress amended a statutory scheme in a manner that favors their client is disappointing. In most of their briefing, both parties cited and relied upon pre-amendment case law. The Court has afforded such case law only that weight deemed appropriate in light of the changes effected by the ADAAA.
A prima facie case of disability discrimination requires Marsh to show: (1) he was a disabled person; (2) he was qualified, with or without reasonable accommodation, to perform the essential functions of his job; and (3) he was fired because of his disability. Carter, 662 F.3d at 1142. If Marsh makes such a showing, the burden shifts to Terra to articulate some legitimate, nondiscriminatory reason for its actions. Id. at 1141. Marsh then bears the ultimate burden of showing that Terra's proffered reason is a pretext designed to mask discrimination. Id.
With respect to Marsh's alleged disability due to back injury, he has produced no evidence to support the third element. Marsh himself never mentioned or raised any back injury to Terra. None of Marsh's evidence indicates that Terra officials discussed or considered the back injury in any manner when they decided to terminate him. Instead, Terra's internal records and all testimony by Terra decisionmakers centers on Marsh's knee injury. Although the back injury is mentioned in Marsh's medical records and Terra was aware of such injury, there is no evidence indicating that it played any role in the termination decision. The course of events leading to Marsh's termination originated with a complaint about his knee, and all evidence indicates that Marsh's discrimination claim is premised solely upon the knee injury. Accordingly, Marsh cannot satisfy even the light causation burden imposed at the prima facie stage.
In contrast to the back injury, Marsh has presented evidence that (1) he raised specific concerns regarding his knee injury as an alleged disability, (2) the knee injury was discussed, contemplated, and considered by Terra officials at meetings prior to his termination, and (3) Terra officials determined that he was unable to safely run two pumps based on concerns expressed by Marsh. This is sufficient to satisfy the third element of the prima facie case. See Carter, 662 F.3d at 1147 (employer's statements that an employee's alleged disability prevented him from working 24-hour shifts was sufficient to satisfy prima facie case because they could lead a jury to conclude that plaintiff "was fired because he needed more rest than others between jobs"). The Court now turns to the other two elements of a prima facie case for disability discrimination.
The term "disability" means, with respect to an individual —
42 U.S.C. § 12102(1)(A)-(C). Regardless of which type of "disability" is at issue, the term must be "construed in favor of broad coverage of individuals ... to the maximum extent permitted by the terms of this chapter." Id. § 12102(4)(A). In this case, Marsh asserts that he qualifies under all three types of disability.
In order to show an actual disability under § 12102(1)(A), Marsh must "(1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show the impairment substantially limits one or more of those activities." Felkins v. City of Lakewood, 774 F.3d 647, 650 (10th Cir.2014). The first two requirements are questions of law, while the third is a question of fact. Sanchez v. Vilsack, 695 F.3d 1174, 1179 (10th Cir.2012).
Records indicate that Marsh suffered a twisting injury to his right knee during his military training in 2005. Marsh underwent surgery in 2007 after physical therapy was unsuccessful. Martineau described the current condition of Marsh's knee as general osteoarthritis, with "knee arthritic changes and effusion with mild patellar tracking problem." Marsh does physical therapy for his knee every day and wears a knee brace as needed for pain. The Court concludes that the knee injury qualifies as a recognized physical impairment affecting his musculoskeletal system. See 29 C.F.R. § 1630.2(h)(1) (defining physical impairment as "[a]ny physiological disorder or condition ... affecting one or more body systems, such as ... musculoskeletal....").
Next, Marsh must identify the major life activity or activities impacted by this physical impairment. He argues that his knee problem impacts his ability to "play sports, ride horses, and even hold his own children." (Resp. to Mot. for Summ. J. 19.) Marsh described one instance where he was carrying his daughter and fell because his knee buckled. Marsh contends that he must pay attention to how his knee feels and catch it before it buckles. Construed in its most favorable light, Marsh's testimony
The regulations list the following examples of major life activities:
29 C.F.R. § 1630.2(i)(1)(i). The regulations, implementing the ADAAA, further explain that "[i]n determining Other examples of major life activities, the term `major' shall not be interpreted strictly to create a demanding standard for disability" and that "[w]hether an activity is a `major life activity' is not determined by reference to whether it is of `central importance to daily life.'" Id. § 1630.2(i)(2). By removing the "central importance to daily life," the new regulations make a drastic change in the "major life activity" component of the disability analysis.
Prior to passage of the ADAAA, courts consistently held that sporting activities, including riding horses, did not qualify as major life activities. See Griego v. Barton Leasing Inc., No. 08-cv2325, 2010 WL 618281, at *4 (D.Colo. Feb. 19, 2010) (holding that "participating in sports" and "playing sports with children" were not major life activities); Robinson v. Lockheed Martin Co., No. 04-3143, 2006 WL 5629118, at *7 (E.D.Pa. Feb. 1, 2006) (holding that sporting activities, including horseback riding, were not major life activities); Stanley v. White Swan, Inc., No. CIV000-1291, 2002 WL 32061753, at *5 (W.D.Okla. Sept. 26, 2002) (holding that horseback riding, saddling and controlling a horse, caring for horses, and maintaining a farm are not major life activities); Rosa v. Brink's Inc., 103 F.Supp.2d 287, 290 (S.D.N.Y.2000) (holding that sports activities, including riding horses, "are not major life activities at all"). These cases, however, are no longer necessarily controlling.
Under current law, the Court continues to find that sporting activities, including riding horses, do not constitute major life activities. The main change from prior law is that an activity need not be of "cental importance to daily life" in order to be a "major" life activity. Nonetheless, the word "major" is still in the statute, indicating that not every activity in which a plaintiff wishes to participate will qualify. Not only are playing sports and riding horses not central to daily life, they are not highly relevant to daily life. Unlike standing, sitting, breathing, thinking, communicating, interacting with others, or other examples in the regulation, a person can live (and many do) without ever participating in sports or riding horses. These activities may enhance one's life and may be important to particular individuals, but the ADA is ultimately aimed at fereting out discrimination and ensuring that employers provide reasonable accommodations to disabled individuals. Requiring employers to consider a person "disabled" under the ADA simply because a physical impairment limits their ability to play sports or ride horses seems far afield from these overarching purposes, even considering the intent of the 2008 amendments.
Further, the Court has concerns about ruling, as a matter of law, that sporting activities are major life activities. If participating in sports constitutes a major life activity, a plaintiff will almost always
Prior to passage of the ADAAA, courts uniformly held that "carrying" qualified as a major life activity. See Amador a Macy's East-Herald Square, No, 12-CV-4884, 2014 WL 5059799, at *15 (S.D.N.Y. Oct. 3, 2014) (holding that "there can be no dispute that carrying is a `major life activity'" because "[t]he performance of `manual tasks' is explicitly included in the EEOC regulation and it is a task of central importance to daily life"); Hall v. Cablevision of Conn., L.P., No. 3:09-CV-1347, 2011 WL 4829775, at *4 (D.Conn. Oct. 11, 2011) (describing "lifting" as a major life activity); Demetropoulos v. Derundo Foods, Inc., No. 08-C-0420, 2010 WL 2900342, at *7 (E.D.Wisc. July 20, 2010) (analyzing whether back, neck and shoulder injury substantially limited the "major life activities of `lifting,' and, by extension, carrying"). Thus, under the broadened definition in the current regulations, the Court finds that "carrying" qualifies as a major life activity.
The next question is whether Marsh has created a genuine question of fact for a jury as to whether his knee injury "substantially limits" his ability to carry, see 42 U.S.C. § 12102(1)(A), as compared to most people in the general population, see 29 C.F.R. § 1630.2(j)(1)(ii) (explaining that proper comparator is the "general population"). Although the "substantially limits" language remains in the statute following passage of the ADAAA, the implementing regulations now state that the impairment "need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. § 1630.2(j)(1)(ii) (emphasis added). Further watering down the "substantially limits" statutory language, the regulations explain that this phrase: (1) is to be construed broadly in favor of expansive coverage, 29 C.F.R. § 1630.2(j)(1)(i); (2) "is not meant to be a demanding standard;" id.; (3) is a threshold issue that "should not demand extensive analysis," id. § 1630.2(j)(1)(iii); (4) requires a lower "degree of functional limitation" than under the pre-amendment version of the ADA, id. § 1630.2(j)(1)(iv); and (5) does not require scientific, medical, or statistical analysis, id. § 1630.2(j)(1)(v).
There is tension between the "substantially limits" statutory language and the interpretive regulations adopted by the EEOC following passage of the ADAAA, which implement Congress' intent to lessen the "substantially limits" burden. Attempting to reconcile the statute and interpretive guidance, the Court concludes that "substantially" must be given some meaning, i.e., not just any "limitation" on a
Applying this standard, Marsh has created a genuine question of fact as to whether his knee injury substantially or materially limits his ability to carry, in comparison with most people in the general population. Marsh reported to the VA, immediately prior to his employment with Terra, that his knee was repeatedly buckling and preventing him from staying employed. In July 2010, Marsh visited the emergency room after his knee buckled on him. Marsh testified in his deposition that he has to be cautious of his knee and is constantly on guard to prevent his knee from buckling, particularly while carrying his children. The Court finds this evidence sufficient to survive summary judgment on the "substantially limits" element, as this phrase is defined in the ADAAA's implementing regulations.
Marsh has established a prima facie case that his knee injury is an actual disability under § 12102(1)(A).
Marsh also argues that he qualifies as disabled because he has a record of disability under § 12102(1)(B). "An individual has a record of a disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k). Marsh cannot point to any record of disability, history of disability, or misclassification as disabled. First, the Certificate of Discharge does not qualify because a VA disability rating is not synonymous with being "disabled" under the ADA. See Thorn, 586 F.Supp.2d at 1222 ("A VA disability rating — based on quantifying a decrease in a veteran's earning capacity — is a completely different inquiry and standard than that imposed by
The only other relevant records of impairment are Martineau's medical records, but these also do not indicate that Marsh has a physical impairment that materially restricts one or more of his major life activities. Martineau's records establish that Marsh has two relevant physical impairments — the back and knee injuries. However, the records also indicate that these impairments did not cause Marsh any significant problems and did not cause Martineau to place Marsh on any restrictions. Marsh was seeing Martineau at the behest of Terra rather than due to any specific problems or flare-ups associated with either injury, and Marsh told Martineau during both visits that he was not having symptoms from either injury. Ultimately, Martineau concluded, after reviewing his VA records and recent MRIs, that Marsh was fit for duty as a shipping technician. Martineau declaring Marsh "fit for duty" for one job is not conclusive or controlling as to whether the records indicate Marsh is disabled. Someone may be fit to complete a particular job description and still be "disabled," particularly after passage of the ADAAA. However, in contrast to Marsh's deposition testimony, nothing in Martineau's medical records indicate that Marsh suffers from any impairment that substantially or materially restricts any major life activity. Marsh cannot show that he has a "record" of disability for purposes of § 12102(1)(B).
Marsh also contends he qualifies as disabled under the "regarded as" prong. Under this prong, a person is considered "disabled" if "the individual establishes that he or she has been subjected to an action ... because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A) (emphasis added).. Unlike an "impairment" as defined in § 12102(1)(A) and (B), an "impairment" under § 12102(1)(C) need not actually limit or be perceived by the employer to limit a major life activity. Wolfe v. Postmaster Gen., 488 Fed.Appx. 465, 468 (11th Cir. 2012) ("Because of that amendment, a plaintiff need demonstrate only that the employer regarded him as being impaired, not that the employer believed the impairment prevented the plaintiff from performing a major life activity."). The only remaining qualification on the term "impairment," for purposes of § 12102(1)(C), is that a condition may not be deemed an impairment if it is "transitory and minor." 42 U.S.C. § 12102(3)(B). A transitory impairment is one "with an actual or expected duration of [six] months or less." Id.; see, e.g., Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 260 (3rd Cir.2014) (alleged perceived impairment of broken
Applying this standard, the Court concludes that Marsh can satisfy his prima facie case of "disability" under § 12102(1)(C) because he has demonstrated: (1) his knee injury is a physical impairment, (2) it is not transitory, and (3) Terra was aware of and had therefore "perceived" the impairment at the time of Marsh's termination. The Court does so somewhat reluctantly. The original intent of "regarded as" claims was to prevent discrimination based on unfounded concerns, mistaken beliefs, fears, and prejudices about disabilities. Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630 app. § 1630.2(l). By eliminating the "disability" component of the "regarded as" claim, the statute protects individuals who are regarded as having any impairment, rather than those who are regarded as having the type of impairment to which stereotypes, mistaken beliefs, and prejudices normally attach.
In summary, Marsh has satisfied the "disability" element of his prima facie case in two ways: (1) he has shown, under 42 U.S.C. § 12102(1)(A), that his knee injury is a physical impairment that substantially or materially impacts the major life activity of carrying; and (2) he has shown, under 42 U.S.C. § 12102(1)(C), that his knee injury is a non-transitory physical impairment about which Terra was aware at the time of his termination. All remedies remain available to Marsh based on the two types of disabilities at issue.
Another element of a prima facie case of disability discrimination requires Marsh to show he was qualified, with or without reasonable accommodation, to perform the essential functions of his job.
Terra first argues that Marsh is equitably estopped from satisfying this element based on statements made to the VA in 2010, 2011, and 2014. The estoppel argument stems from the Supreme Court's decision in Cleveland v. Policy Management Systems Corporation, 526 U.S. 795,
Id. at 797-98, 807, 119 S.Ct. 1597; see also Mathews v. Denver Newspaper Agency, 649 F.3d 1199, 1209 (10th Cir.2011) (employee estopped from asserting that his disabling depression occurred only after being placed on leave, when he had previously sworn to the Social Security Administration ("SSA") that depression rendered him unable to work before being placed on leave, without giving any sufficient explanation for the discrepancy); Hawkins v. Schwan's Home Serv., Inc., No. CIV-12-0084, 2013 WL 2368813, at *9-10 (W.D.Okla.2013), (employee estopped from asserting he was qualified for position when, following the alleged discriminatory actions, he represented to SSA he did not qualify for a commercial driver's license which was required for the position).
Marsh's statements to the VA in 2010 and 2011 regarding his knee injury do not estop him from asserting he is qualified for Terra's shipping technician position. They were merely comments to a VA hotline operator rather than sworn representations made in pursuit of legal benefits. The letter sent by an attorney in August of 2014 also does not give rise to estoppel because it was written by Marsh's attorney, is not a sworn statement, and seems to focus entirely on health conditions other than the knee injury at issue in this case.
The Disability Application submitted by Marsh to the VA in July of 2014 requires closer examination. The Disability Application is a formal request for total disability payments based on unemployability. See generally 38 C.F.R. § 4.16 (explaining the VA's total disability rating based on individual unemployability). Like an application for total disability to the SSA, the Disability Application potentially "implies a context-related legal conclusion" (an inability to perform any job) that may "negate an essential element of [an] ADA claim" (qualified to perform a particular job). See Cleveland, 526 U.S. at 802, 806, 119 S.Ct. 1597. Even if there are not any specific factual conflicts between the Disability Application and Marsh's ADAAA claim, the legal implications of the Disability Application may still have an estoppel effect.
Terra has failed to demonstrate that estoppel principles entitle it to summary judgment. First, the VA does not appear to have granted any total disability benefits at this juncture, such that there would be actual "double dipping" from both the VA and the ADAAA. While the receipt of
A "qualified individual" is an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. § 12111(8). "[C]onsideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." Id. The Tenth Circuit applies
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir.2003) (citations omitted).
Clearly, Marsh could perform the essential functions of the job as it existed prior to the increased production requirements. He did the job for over a year, received a raise, and did not receive any negative performance evaluations. The question is whether the increased requirements imposed by Dees in March 2013 — namely, the requirement to run two pumps whenever possible — became an "essential function" of the job that Marsh could not perform.
"The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires" but does not include "the marginal functions of the position." 29 C.F.R. § 1630.2(n)(1). As to when a quantitative or qualitative standard is an essential function, the interpretive guidance to the regulations explains:
Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, app. § 1630.2(n).
There is no genuine dispute that Dees was responsible for setting production standards for shipping technicians. Once Dees discovered that the 2A shift was underperforming in relation to the other shifts, he investigated and further determined that the 2A shift was not running two pumps when possible like other shifts were doing. Dees desired for the 2A shift to keep up with the other teams. Dees communicated to the 2A shift lead that, as a team, they were required to run two pumps whenever possible and to record when and why the team did not run two pumps. Based on these undisputed facts, the Court concludes that Marsh was not singled out for different treatment and that Dees simply increased the expectations of the 2A shift to bring it in line with the other shifts. The Court concludes that the increased performance expectation to run two pumps is akin to any other production standard and qualifies as an "essential function" of the position.
Marsh argues that these increased expectations cannot be an "essential function" of the job because Marsh had been successfully performing his job for over a year. However, the Tenth Circuit has held that increased standards can still be "essential functions" of a position, even though they are imposed after the allegedly disabled individual was hired. See Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir.1995) (new production standards requiring the plaintiffs to accomplish their jobs in a shorter amount of time were essential functions) ("[T]he fact that defendant made changes to its business in order to increase profit is not an impermissible action under the ADA."). In other words, "essential functions" need not remain constant and can evolve while a disabled individual is employed. Further, the absence of "running two pumps when possible" from the shipping technician's job description is not controlling in this case, based on the overall circumstances and the type of production standard at issue.
Based on Marsh's own testimony, it is clear that Marsh could not perform the "essential function" of keeping up with two pumps when necessary. Within just ten minutes of Dees' communicating the new expectations to the 2A shift leader, Marsh approached Dees and expressed his concerns about running two pumps due to his knee injury. For the next three days, Marsh tried to perform his job under the new expectations but admitted in his deposition that he could not keep up. Later, in
Next, the court must determine whether any reasonable accommodation by Terra would have enabled Marsh to perform this essential function. Construing the record favorably to Marsh, he requested an accommodation of his team running only one pump and/or the accommodation of using two pumps but shutting one down when Marsh could not keep up.
The Tenth Circuit has explained that altering production standards is not a reasonable or expected accommodation:
Milton, 53 F.3d at 1124-25. Like the requested accommodation in Milton, Marsh's requested accommodation is an altered production standard that is more accommodation than is reasonable. This situation arose because Dees was concerned about unequal performance among the shifts. Terra could not accommodate Marsh without lowering its standards or requiring other employees — either Marsh's fellow shift members or members of other shifts — to work harder. Therefore, Marsh is not an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the shipping technician position. Having failed to create any genuine issue of fact as to the "qualified individual" element of a prima facie case for disability discrimination, Marsh's discrimination claim fails as a matter of law.
A prima facie case of failure to accommodate requires a plaintiff to show: (1) he was a disabled individual within the meaning of the statute; (2) the employer had notice of his disability; (3) with reasonable accommodation, he could perform the essential functions of the position; and the employer refused to make such accommodations.
Marsh did not respond to Terra's motion for summary judgment on the IIED claim, and the Court therefore accepts Terra's statements of fact as true. Based on the facts and law cited in Terra's motion, the Court independently concludes that Terra is entitled to summary judgment on. Marsh's IIED claim.
Terra's Motion for Summary Judgment (Doc. 39) is GRANTED. The Court will enter a separate judgment.
