MARCO A. HERNANDEZ, District Judge.
Plaintiff Dean Wessels brings this disability discrimination action against his former employer, Defendant Moore Excavation, Inc. Defendant moves for summary judgment on Plaintiff's claims. Alternatively, Defendant moves for partial summary judgment on its "direct threat" affirmative defense. Because I agree with Defendant that Plaintiff fails to create an issue of fact as to causation and fails to show he requested a reasonable accommodation, I grant Defendant's motion. I deny the alternative partial summary judgment motion as moot.
Plaintiff was employed by Defendant, a construction firm which works on large projects, from May 3, 2013 until late October 2013. Roy Moore is Defendant's president. Plaintiff was hired as a heavy equipment operator. At the time, he had a preexisting knee injury. Unbeknownst to Defendant until after his employment with Defendant ceased, Plaintiff was being prescribed both oxycodone
During his time with Defendant, Plaintiff was assigned to different crews at different job sites. Each crew consisted of several operators and a foreman or a superintendent. Falcone Decl. Exs. A, B ("Pl. Dep.") 64; ECF 34-1, 34-2. Plaintiff was not a member of a union and his employment was at will.
Within a few weeks of beginning his employment, Plaintiff re-injured his knee over Memorial Day weekend in a dirt bike accident.
Plaintiff worked with superintendent John Nutter on a light rail project from June 26 to July 16, 2013. Falcone Decl. Ex. E ("Nutter Dep.") 30-31; ECF 34-5. On July 17, 2013, Plaintiff was moved to the "Minter Bridge" project with Scott Pellecer. Falcone Decl. Ex. F ("Pellecer Dep.") 50; ECF 34-6. Moore promoted Plaintiff to foreman while on that project, and he was given a phone and company vehicle to drive. Pl. Dep. 65-68. Plaintiff worked on this project from July 17 to August 28, 2013, and then again from September 10-18, 2013. Pellecer Dep. 84. Finally, at the time of his termination, Plaintiff was working for superintendent Brent Seipert on the "FedEx" project. Falcone Decl. Ex. H ("Seipert Dep.") 20, 37; ECF 34-8.
Defendant terminated Plaintiff on October 21, 2013. Pl. Dep. 102. Defendant asserts that its termination was based on Plaintiff's inability to work well with others. Plaintiff contends that his termination was motivated by his disability.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial."
The substantive law governing a claim determines whether a fact is material.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary.
Plaintiff brings a disability discrimination claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA), based on his termination. He also brings separate ADA claims for the failure to accommodate and the failure to engage in the interactive process regarding an accommodation. He brings analogous claims under Oregon law. Or. Rev. Stat. §§ (O.R.S.) 659A.103-659A.145. The standards for analyzing the federal and state claims are the same. O.R.S. 659A.139 (state statute to be construed "to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act");
Defendant raises numerous objections to evidence Plaintiff relies on in opposing Defendant's motion. Relevant objections are discussed below, in the context of the particular issue in which the evidence is relied upon. All other evidentiary objections are denied as moot.
The ADA and Oregon law prohibit discriminating against qualified individuals on the basis of disability in the terms and conditions of their employment. 42 U.S.C. § 12112(a); O.R.S. 659A.112(1). To oppose summary judgment in a discrimination claim, Plaintiff has the initial burden of making out a prima facie case of discrimination.
To establish a prima facie case of disability discrimination, Plaintiff must show that (1) he is disabled; (2) he is a qualified individual as defined in the statute; and (3) he suffered an adverse employment action because of his disability.
Defendant does not contest that Plaintiff is disabled under the ADA. Defendant contends that Plaintiff cannot establish, or create an issue of fact regarding, the other two elements of a prima face case: that he is otherwise qualified to perform the essential functions of his position and that Defendant terminated him because of his disability.
A qualified individual with a disability is 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." 42 U.S.C. § 12111(8);
The parties dispute whether "safely" operating heavy equipment was an essential function of Plaintiff's job. Plaintiff argues that the safe operation of the equipment is a "qualification standard" which a person does not need to meet to show that he is "qualified."
Plaintiff does not dispute that while he was working for Defendant, he regularly took opiod pain medications. Defendant did not know of this medication use during Plaintiff's employment or at the time of termination. There is no evidence in the record indicating that during Plaintiff's tenure, Defendant was concerned about Plaintiff's ability to safely operate the equipment.
In support of its argument that Plaintiff's opiod pain medication use prevents him from safely operating heavy equipment, Defendant relies on a snippet of Plaintiff's deposition testimony, taken out of context, and viewed, contrary to the appropriate standard on summary judgment, in a light most favorable to Defendant. There are two portions of Plaintiff's deposition testimony at issue as well as testimony by his treating pain specialist.
First, during his deposition, Plaintiff was questioned about his pain level during the relevant time, including being asked questions about a pain scale. His physician, Dr. Howard Grattan, explained that a "visual analogue pain scale" is used for patients to "self-report [] how much pain the patient is subjectively experiencing." Falcone Decl. Ex. D ("Grattan Dep.") 54; ECF 34-4. The scale goes from 0-10 with 0 meaning no pain and 10 being the worst pain.
Plaintiff testified that his pain levels differed depending on the time of day and on his ability to avoid sitting for hours on end without being able to stand up. Pl. Dep. 164. His concentration was unaffected because his pain levels varied and he never experienced pain at a level of 9.
He admitted that a 7 or 8 out of 10 was "pretty high" and that his pain as of May 17, 2013 was a 7 out of 10.
Defendant argues that the evidence shows that Plaintiff experienced pain, unpredictably, at a 7 or 8 out of 10, and that Plaintiff believed a 7 was a high level of pain and that a level of 9 meant unconsciousness. But, when all of Plaintiff's testimony on this issue is considered in the light most favorable to Plaintiff, the testimony establishes that Plaintiff experienced varying levels of pain, unpredictably, but that he never operated equipment when his pain was at level 8 or higher, his concentration was unaffected, he was unsure what a level 9 meant but thought it could be unconscious, and that a pain level of 7 was a "significant irritant." Nothing else is a fair reading of the deposition testimony through the appropriate lens.
In his deposition, Dr. Grattan testified that a 7 out of 10 on the scale is "fairly significant pain, impairing the patient's ability to do activities or concentrate" and that an 8 out of 10 is "a bit worse than 7 out of 10." Grattan Dep. 54-55. In deposing Dr. Grattan, Defendant's counsel made certain representations about Plaintiff's pain testimony. Defendant's counsel told Dr. Grattan that Plaintiff "testified that an 8 of 10 pain level on the visual analogue scale meant to him that that was just one level lower than being unconscious due to pain; in other words, [Plaintiff] testified that a 9 out of 10 to him meant that you were so much pain, that you were unconscious."
Relying on Dr. Grattan's testimony, Defendant contends that the record establishes that Plaintiff cannot safely operate heavy equipment while experiencing pain at a level of 7 or 8. The problem for Defendant is its reliance on a construction of Plaintiff's deposition testimony that favors Defendant, not Plaintiff. It was not entirely accurate to represent to Dr. Grattan that Plaintiff testified that a pain level of 7 was 2 levels below unconsciousness when Plaintiff had testified that a 7 was a "significant irritant," and that Plaintiff clearly did not know exactly what a level 9 was without looking at the information in the doctor's office. Defendant fails to credit Plaintiff's testimony that he did not operate heavy equipment when his pain level was at an 8. Additionally, the "pain level" argument fails to consider that Plaintiff's reports of pain were presumably the level of pain he experienced without medication. Given that he was taking opiod medication while employed by Defendant, it is far from clear that Plaintiff regularly experienced levels of pain of 7 while operating heavy equipment. The foundation of Dr. Grattan's opinion about safely operating heavy equipment with certain pain levels is without support in the record when that record is interpreted in a light most favorable to Plaintiff. Defendant fails to establish an absence of fact on the question of whether Plaintiff could safely operate heavy machinery when Plaintiff's pain level was inconsistently at a subjective level of 7.
Second, Defendant argues that it is undisputed that Plaintiff cannot safely operate heavy machinery while taking his prescription opiod medications. Defendant's argument, in short, is that Dr. Grattan testified that it would be unsafe for Plaintiff to operate heavy equipment "while he was taking five tabs of Oxycodone throughout his workday" and that it would be unsafe for Plaintiff to operate heavy equipment, and contrary to Dr. Grattan's instructions, for Plaintiff to take five tabs of Oxycodone before getting to work in the morning. Grattan Dep. 47-50.
Defendant's counsel mischaracterized Plaintiff's testimony to Dr. Grattan during Dr. Grattan's deposition and thus, the foundation for Dr. Grattan's opinion testimony is not based on an interpretation of the evidence considered in a light most favorable to Plaintiff. In questioning Plaintiff, Defendant's counsel inquired about a July 2013 record from Dr. Grattan's office noting a call from Plaintiff in which he reported that he "uses the five tabs of Oxycodone to get through the workday" and that he desired something else to take at night for his pain. Pl. Dep. 100. The relevant testimony is as follows:
Pl. Dep. 100-01 (emphasis added).
When Defendant's counsel questioned Dr. Grattan, she asked whether Dr. Grattan would have cleared Plaintiff to work if he had known that Plaintiff was operating heavy equipment "while he was taking five tabs of Oxycodone throughout his workday[?]" to which Dr. Grattan replied, "No." Grattan Dep. 47. He also said it would not have been safe for Plaintiff to operate the equipment "while he was taking five tabs of Oxycodone throughout his workday[.]
Defendant's counsel misrepresented Plaintiff's testimony to Dr. Grattan when she indicated that he "was taking five tabs of Oxycodone throughout his workday." Plaintiff's report to Dr. Grattan's office was that he was taking his five tabs of Oxycodone to "get through the workday." The distinction between taking medication "throughout the day" and taking medication to "get through the day" is material. While the former implies that the medication was taken continuously throughout the day, the latter carries no such implication. Instead, it implies only that the individual needed medication to get through the day. It does not necessarily suggest a time element as to when the medication was taken. This is made more clear by Plaintiff's testimony that he "wasn't taking it while I was working," and that he took it "before and after work." Construing the testimony in a light most favorable to Plaintiff, the deposition testimony does not show that he was taking five tabs of Oxycodone throughout his workday. Instead, it suggests that he was taking some before and some after work so he could make it through his day. As a result, Dr. Grattan's testimony about whether Plaintiff could safely operate heavy equipment while taking five tabs of Oxycodone throughout the workday has no weight.
Additionally, Plaintiff's testimony was not that he took five tabs of Oxycodone on his way to work in the morning. For this, Defendant relies only on the first words spoken by Plaintiff in response to the deposition question. Defendant fails to consider the entire answer explaining that he took the medication both before
Finally, Defendant's argument fails to consider any of Dr. Grattan's testimony about Plaintiff's use of opiod medications as prescribed. Dr. Grattan testified that if used appropriately, there were not a lot of studies showing that opiod use increased risks. Grattan Dep. 46. He opined that if Plaintiff took the opiod medications as prescribed, there was a chance he could have operated the relevant equipment safely.
In summary on this issue, there is no testimony establishing exactly when Plaintiff took which of his two opiod medications other than Plaintiff's testimony that he took Oxycodone before and after work.
If Plaintiff is a qualified individual with a disability, Plaintiff still must show that he was terminated because of his disability to establish his prima facie case of discrimination.
Plaintiff contends that he has direct evidence of discriminatory motive. He points to (1) his request for accommodation in requesting time off to attend doctor's appointments; (2) Moore's comment after terminating Plaintiff that Plaintiff should have rescheduled his doctor's appointment that day because it was a busy time for the company; and (3) the fact that in response to previous complaints about him, he was reassigned but not fired. Pl.'s Resp. 36-37; ECF 39.
"Direct evidence" of discriminatory intent is "evidence, which, if believed, proves the fact of discriminatory animus without inference or presumption."
Under the controlling definition, an employee's request for time to go to doctor's appointments is not direct evidence of an employer's discriminatory intent. It shows that the employer had knowledge that the employee had to go to the doctor, but it does not establish that the employer even knew of a disability much less that the employer took action against the employee because the employee was disabled.
As to Moore's comment, Moore made the decision to terminate Plaintiff and terminated him. Moore Decl. ¶ 2. In his deposition testimony, Moore states that none of his employees talked to him about Plaintiff's requests for time off for doctor's appointments. Falcone Decl. Ex. C ("Moore Dep.") 86-87; ECF 34-3. He was otherwise unaware of Plaintiff's requests to take time off for doctor's appointments.
According to Moore, Plaintiff had difficulty getting along with others and, after having moved him from one crew to another in an attempt to find a group he could work well with, Moore fired him. Moore Decl. ¶ 2. Moving Plaintiff to different job sites was not because of Plaintiff's requests for time off for doctor's appointments, of which Moore was unaware. Moore Dep. 88-89, 91. On the day of Plaintiff's termination, Brent Seipert told Moore that Plaintiff was not getting along with people again.
Plaintiff testified in deposition that Moore met with him in a conference room and no one else was present. Pl. Dep. 103. He could not remember anything about the conversation with Moore other than "you're fired" or "you're terminated."
Defendant objects to the admission of the statement because it contradicts Plaintiff's prior deposition testimony. Under the Ninth Circuit's "sham" affidavit rule, "a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony."
In
The Ninth Circuit cited to several of its cases which "indicate that a district court may find a declaration to be a sham when it contains facts that the affiant previously testified he could not remember."
Here, Defendant cites to three allegedly contradictory statements in Plaintiff's deposition:
Pl. Dep. 104-05. Given that the alleged comment about rescheduling the doctor's appointment was made when Plaintiff returned to turn in his phone which was just
Next, Defendant relies on the following deposition testimony from Plaintiff:
Moore's alleged comment to Plaintiff about rescheduling a doctor's appointment is a "negative comment" by Moore about Plaintiff's request to go to the doctor which Plaintiff himself characterizes as a reasonable accommodation request. Given that Plaintiff previously said in deposition he could not remember anyone making a negative comment about an accommodation request or could not remember ever learning from anyone that someone had made a negative comment about an accommodation, Plaintiff's Declaration statement about what Moore allegedly said is contradictory. And, as to the second of these two deposition excerpts, given that Plaintiff told the BOLI investigator that he did not know if Moore knew Plaintiff needed an accommodation and Plaintiff confirmed the truthfulness of this statement at his deposition, his Declaration is contradictory. When Moore allegedly told Plaintiff that Plaintiff should have rescheduled his doctor's appointment, Plaintiff learned then that Moore knew that Plaintiff had needed an accommodation in the form of time off to go to the doctor's appointment.
Plaintiff offers no reason in his Declaration for why he remembers Moore's statement now as opposed to when he was questioned at deposition. Given that the comment occurred just after his termination and that he believes it is direct evidence of discriminatory animus, this comment is central to Plaintiff's case. The statement in the Declaration is not an elaboration upon or an explanation or clarification of the deposition testimony. For these reasons, I find that the statement in Plaintiff's Declaration at Paragraph 19 regarding what Moore said about rescheduling his doctor's appointment is a sham. It is stricken.
Alternatively, even if this statement is considered, it is not direct evidence of discriminatory motive. The statement requires the factfinder to infer that Moore knew that Plaintiff needed to go to the doctor because of a disability as opposed to some other nondisability related reason. There is nothing in Moore's statement suggesting he knew why Plaintiff went to the doctor that day.
Finally, as to direct evidence, Plaintiff argues that the fact that Moore terminated him after Seipert complained to Moore but did not terminate him after previous complaints by other superintendents, shows that Moore's learning that Plaintiff had gone to the doctor was the motivating factor behind the termination. For the reasons previously explained, however, Moore's different treatment on this occasion with the newly possessed knowledge that Plaintiff went to the doctor is not direct evidence of discrimination because the factfinder must still infer discriminatory intent from Moore's knowledge of a doctor's appointment.
Even if there is no direct evidence of discriminatory animus, Plaintiff argues that there is circumstantial evidence of such motive. From the briefing, it appears that Plaintiff relies on the following evidence: (1) Moore's comment about rescheduling his doctor's appointment; (2) a comment by Pellecer, one of Plaintiff's supervisors, that Plaintiff needed to hurry up while getting into an excavator; (3) failure to follow a progressive discipline policy; (4) the fact that when Moore received prior complaints about Plaintiff he transferred him, but he terminated him in response to Seipert's complaint after learning he was at a doctor's appointment; (5) the fact that Moore terminated him within hours of learning he was at a doctor's appointment; and (6) excluding Plaintiff from the schedule after taking time off for doctor's appointments. I address these arguments in turn.
For the reasons discussed above, the statement in Plaintiff's Declaration about what Moore said is stricken under the sham affidavit rule. However, even if I were to consider it, it does not provide circumstantial evidence of discriminatory intent absent any evidence that Moore knew why Plaintiff went to the doctor that day. I agree with Defendant that an inference of disability discrimination cannot be made from Moore's single reference to a doctor's appointment when there is no evidence that Moore knew anything about Plaintiff's knee condition and thus, did not know about his disability. The doctor's appointment could have been for many reasons unrelated to disability.
Plaintiff testified in deposition that when Plaintiff worked with Pellecer, Pellecer made a joke that Plaintiff needed to hurry up while getting into an excavator. Pl. Dep. 53-54. Plaintiff testified that he couldn't recall specifically what Pellecer said, but Plaintiff "construed it as more of a joke."
Plaintiff argues that Pellecer's comment establishes that Defendant was on notice that he had a disability because his problem getting into the excavator was "visual" evidence of a limitation. That may be true, but this comment alone shows only that Pellecer observed something about Plaintiff that caused him to "joke," and is not evidence that Moore, the undisputed decisionmaker, knew of a disability.
Ninth Circuit cases hold that a "stray remark" that is "uttered in an ambivalent manner and is not tied directly to [the plaintiff's] termination" is not direct evidence of discrimination.
Moreover, the "cat's paw" theory requires evidence not only that Pellecer's statement reveals his own bias but that he influenced Moore, the final decisionmaker.
Even assuming Pellecer's remark evidences his own discriminatory animus, there is no evidence that Pellecer influenced Moore's decision to terminate Plaintiff. Without such evidence, Plaintiff cannot create an inference of causation.
While there is evidence that Pellecer complained to Moore about Plaintiff's work, there is no evidence that Pellecer communicated any bias to Moore, or told Moore about Plaintiff's knee injury, his doctor's appointments, or anything else suggesting that Pellecer's bias infected Moore's decision. Plaintiff's argument is based on supposition: he supposes that because Pellecer talked to Moore about Plaintiff, he must have talked to him about Plaintiff's disability. But, the possibility that such a conversation could have occurred does not give rise to a reasonable inference that it did in fact occur.
Plaintiff suggests that Defendant's failure to tell Plaintiff during his employment that he was not fitting in is evidence of discrimination. Pl. Resp. 8, 23. But, in the absence of evidence showing that Defendant had a regular practice or a policy of giving warnings or had some sort of progressive discipline system, this evidence does not give rise to an inference of discriminatory motive. Plaintiff has no evidence of such policy or practice, he has no evidence of similarly situated non-disabled employees being treated differently, and he himself testified that he was never told that he was entitled to a certain number of warnings before termination and that he could be fired without any prior warnings. Pl. Dep. 266-67.
Plaintiff argues that discriminatory animus is evidenced by Moore's treating him differently than Moore had treated him in the past after learning that Plaintiff went to a doctor's appointment. At least three superintendents complained to Moore about Plaintiff. Moore Dep. 23-24 (Nutter told Moore that Plaintiff thought Plaintiff was better than other people at operating a piece of equipment and that Nutter was concerned about Plaintiff's ability to operate machinery; Moore did not terminate Plaintiff at the time because he wanted to give him a chance to get better); 25-26 (Pellecer told Moore that he thought Plaintiff lied about what he did on a particular job site; Moore did not fire Plaintiff because he was "trying to give this guy a shot" because in Moore's opinion, he was an adequate operator); 27-28 (Seipert told Moore that Plaintiff had a bad attitude and he was causing trouble with the crew). Nutter asked Moore to move Plaintiff to another project. Nutter Dep. 69. Pellecer asked Moore to move Plaintiff off of his project. Pellecer Dep. 85. Seipert also told Moore that he did not want Plaintiff on his job anymore. Seipert Dep. 22; Moore Dep. 27-28, 120.
In response to Nutter and Pellecer's complaints, Moore transferred Plaintiff to different crews. Moore Decl. at ¶ 2. However, in response to Seipert's complaint, Moore fired Plaintiff.
As stated previously, Moore's knowledge of a doctor's appointment is not knowledge of a disability. It remains undisputed that Moore did not know of Plaintiff's knee injury, did not know of his doctor's appointments related to the knee injury, and did not know that the doctor's appointment on the day of termination was related to the knee injury. Even assuming that Moore terminated Plaintiff in response to the doctor's appointment, that does not establish an inference of motive based on disability.
Plaintiff argues that the timing between Moore's learning of his doctor's appointment and his termination is evidence of causation. Causation may be inferred based on timing.
In the fact section of his Response, Plaintiff states that his request for time off for doctor's appointments was honored only once, on the day he was fired. Pl. Resp. 6-7. He explains that all of his other requests for a few hours off resulted in being excluded from the schedule for one or more workdays following the time-off request.
In my reading of Plaintiff's Response, I find no further reference to these assertions and no argument based upon them. If these assertions are intended to evidence discriminatory intent in the termination decision, they fail to do so without additional evidence showing that similarly situated but non-disabled individuals were treated differently. It may be that given the nature of the work performed by Defendant, partial days are not tolerated. While that might be an extreme policy, it is not by itself suggestive of discrimination and thus, without comparator evidence, Plaintiff's allegations do not create an inference of discriminatory intent.
These allegations may support some sort of retaliation claim. It is possible they could form the basis of a claim that Plaintiff was retaliated against for exercising his right to reasonable accommodation in the form of a doctor's appointment. There is no dispute that Defendant allowed Plaintiff the time off for going to the doctor.
For the reasons explained, the evidence Plaintiff relies on fails to reasonably imply that Moore's termination of Plaintiff was motivated by Plaintiff's disability. However, for the purposes of this Opinion, I will assume that collectively, the evidence is enough to meet Plaintiff's burden at the prima facie case stage. Thus, I proceed to consider the next steps of the
Plaintiff concedes that Defendant presents evidence of a legitimate, nondiscriminatory reason for its actions — Plaintiff's inability to work with others.
First, Plaintiff cannot rely on Pellecer's comment about his being slow getting into the excavator to show pretext.
Second, as stated previously, Moore had no knowledge of a preexisting knee injury, no knowledge of the Memorial Day weekend re-injury, no knowledge of requests for time off for doctor's appointments (for any reason), and no knowledge that Plaintiff had asked for rides around the work site. Because a plaintiff must show that he or she was discriminated against because of a disability, "[i]t follows that the plaintiff must show that the defendant had knowledge of his disability when making the adverse employment decision."
Third, Plaintiff notes that he walks with a limp and thus, Moore should have known he had a disability. Pl. Decl. ¶ 3 (since injuring his knee in 2002, Plaintiff has walked with a limp); Catalano Decl. ¶ 4 (Plaintiff has a knee injury and walks with a limp). Moore denies he observed Plaintiff with a limp. Moore Dep. 28, 33 (Moore interviewed and hired Plaintiff and observed him in the workplace, but never saw him limp). No one else saw him limp either. Seipert Dep. 48-49; Nutter Dep. 22-23; Pellecer Dep. 65; Rolph Dep. 27; Wells Dep. 44.
On summary judgment, taking the evidence in a light most favorable to Plaintiff, I accept that he walks with a limp. There still is no evidence in the record that the limp is pronounced and easily observable by others. There is no evidence that Plaintiff discussed the limp with anyone, particularly with Moore. Even if the limp were obvious, that alone does not establish a disability.
Accordingly, the fact that Plaintiff walks with a limp is not specific and substantial evidence refuting Defendant's non-discriminatory reason for terminating him. When all of the evidence is considered, it either fails to create an inference of causation or fails to amount to specific and substantial evidence that Defendant's legitimate non-discriminatory reason for the termination was a pretext for disability-based discrimination. I grant summary judgment to Defendant on Plaintiff's discrimination claim.
Plaintiff brings separate claims for failure to engage in the interactive process and failure to reasonably accommodate his limitations. There is a split among Judges in this District about whether the former is a stand-alone claim. In November 2014, I adopted a Findings & Recommendation of Judge Papak's which concluded that it is not.
An employer has an affirmative duty to provide reasonable accommodations to individuals with disabilities. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). Once an employer becomes aware of the need for accommodation, that employer is obligated to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations.
The trigger may come from a request by the employee or by the "employer's recognition of the need for such an accommodation, even if the employee does not specifically make the request."
Nonetheless, the "general rule" is that the employee generates a request in some form. The
In support of its motion, Defendant argues that Plaintiff's accommodation claim fails because he never communicated a need for accommodation and Defendant was unaware of any need for accommodation, other than Plaintiff's need to go to the doctor which Defendant allowed without question. I agree with Defendant.
Plaintiff stated at deposition that he never submitted any medical documentation to Defendant providing any restrictions on his ability to work or about his knee injury generally. Pl. Dep. 39. He also testified that he never communicated to anyone with Defendant that he had restrictions on his ability to work due to his knee injury.
In his Declaration, Plaintiff states that when he returned to work from Memorial Day 2013 after re-injuring his knee, he told Wells and foreman Anthony Koop that he was having pain in his knee and leg, was limited in his ability to climb and walk, and was on pain medication. Pl. Decl. ¶ 11. Defendant argues that this statement is inconsistent with his deposition testimony. As noted above, Plaintiff testified that he never communicated to anyone that he had restrictions on his ability to work due to his knee injury. As to Wells and Koop, he was specifically asked these questions and answers:
Pl. Dep. 40-41, 42-43.
Information provided by Plaintiff to Wells and Koop, or anyone else with Defendant, about any actual problems he had in performing a work-related function, are central to Plaintiff's reasonable accommodation claim. Yet, Plaintiff offers no explanation in his Declaration for why he now remembers telling Wells and Koop that he was limited in his ability to climb and walk but could not recall this at his deposition. As such, I find that the statement in the Declaration that he told Wells and Koop that he was limited in his ability to climb and walk to be a "sham" and I grant Defendant's motion to strike that statement. As to the "pain medication statement," his deposition testimony was:
Plaintiff did tell his supervisors on the various projects he worked on that he had injured his knee and needed time to go to the doctor. But, as the Eastern District of Washington explained in a 2013 case,
Knowledge of a knee injury and the need for diagnostic- or treatment-related doctor's appointments do not, without more, inform the employer that the employee has work-related limitations and thus needs an accommodation to perform the essential functions of his or her job. The duty to explore a reasonable accommodation begins "
As
Plaintiff's failure to notify Defendant of any actual limitations in performing his job is fatal to his claim. His limp is not enough because while it is suggestive of a disability, it is not necessarily suggestive of any limitations on his ability to perform the job.
Pellecer's comment about Plaintiff's being slow getting into the excavator is also not enough because, like the limp, it could suggest a disability but it does not reveal a limitation in his ability to perform the job. It also provides no basis for the employer to know that a disability prevented Plaintiff from requesting a reasonable accommodation. And, Plaintiff's occasional requests for rides from one part of a job to another is insufficient to put Defendant on notice that Plaintiff needed an accommodation. Pl. Dep. 196-98. Plaintiff indicates that this occurred "half a dozen" times.
The record establishes that Plaintiff did not request an accommodation.
Defendant's motion for summary judgment [33] is granted.
IT IS SO ORDERED.
