TENA CAMPBELL, District Judge.
Plaintiff Chad Steven Morrill ("Chad")
At the hearing, Chad's counsel, David Holdsworth, conceded that no triable issues of fact existed for the second or third causes of action. Accordingly, HRH's motion for summary judgment is GRANTED for those two claims.
On the other hand, for the reasons stated below, the court concludes that triable issues of fact exist for the first cause of action, and HRH's motion for summary judgment is DENIED for that claim.
Chad suffered an aneurysm and stroke in 2005 and now has both short-term memory loss and partial paralysis on his right side. (Rhonda Dep. I at 9:13-20:9 (ECF No. 19-3).) HRH is an in-patient behavior and addiction treatment center where Chad began working in 2012.
In mid-2014, Logan Polatis became Chad's new supervisor and began requiring that Chad mop the dining room. (Polatis Decl. ¶ 1.) Because of his partial paralysis, this task was difficult for Chad. (Chad Dep. at 11:10-13, 62:14-17.) Over the course of several months, Mr. Polatis issued corrective action notices, a 30-day performance improvement plan, and ultimately a final warning to Chad regarding his deficient mopping. (Exs. 8 & 9 to Chad Dep.; Polatis Decl. ¶¶ 6-11; Jensen Decl. ¶ 5.) Because Chad's performance failed to improve, his employment was terminated on December 4, 2014. (Polatis Decl. ¶ 11; Jensen Decl. ¶ 6.)
Chad brought this lawsuit on December 29, 2017. Among other things, Chad argues that HRH had an obligation to contact his parents to inform them of any problems he was having at work, because if they had known he was struggling, they could have arranged a reasonable accommodation for Chad. As examples of possible accommodations, his parents suggest that Chad's mopping duties could have been eliminated, which had been done before Mr. Polatis became his supervisor; Chad's coworkers could have assumed some of his mopping responsibilities; or a job coach could have been hired to help Chad learn how to mop the dining room. (Rhonda Dep. II at 11:19-13:15, 67:9-20, 74:15-21; Dave Dep. at 40:8-16 (ECF No. 19-7).)
Although not directly related to the claims in this suit, both parties also highlight an earlier episode that provides context for Chad's experience with HRH. In July 2014, Mr. Polatis informed Chad that he was required to have a food handlers license for his job. After several warnings and a brief suspension, Chad finally obtained one. (Chad Dep. at 59:7-61:20; Rhonda Dep. II at 8:3-10:4.) HRH highlights this episode as evidence that it had no malice toward Chad and was not discriminating based on his disability. When a previous problem arose, HRH worked with Chad to resolve the situation over the course of several weeks, even though Chad could have been immediately terminated for failing to get a license. (Polatis Decl. ¶ 4.) Chad, on the other hand, points out that despite repeated warnings to get a license, his short-term memory loss prevented him from doing so. Instead, the problem was only resolved when HRH spoke directly to Rhonda about the problem, who then arranged from him to get the license. (Chad Dep. At 59:7-61:20; Rhonda Dep. II at 8:3-10:4.) Chad argues that this shows that HRH knew that important information needed to be provided directly to Chad's parents and that, if kept informed, his parents were willing and able to help him keep his job.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is `material' if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is `genuine' if a rational jury could find in favor of the nonmoving party on the evidence presented."
"If the movant meets this initial burden, the burden then shifts to the nonmovant to set forth specific facts from which a rational trier of fact could find for the nonmovant."
When evaluating a motion for summary judgment, the court must view the facts and draw all reasonable inferences in favor of the non-moving party.
The Americans with Disability Act makes it illegal for an employee to "discriminate against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). Discrimination on the basis of disability includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." § 12112(b)(5)(A).
HRH contends that Chad was not a qualified individual and that no reasonable accommodation could make him qualified. HRH does not address the second element, that is whether it was aware of Chad's disability.
An employee is a qualified individual if, with or without a reasonable accommodation, the employee can "perform the essential functions of the job."
Most of the factors identified by the Tenth Circuit for consideration were not addressed by the parties' briefs. Neither party has submitted "written job descriptions prepared before advertising or interviewing applicants for the job." And the parties do not discuss how much time, relative to other tasks, an employee is expected to spend mopping or sweeping the dining room. It is unclear whether each employee performed this task each shift or whether employees took turns mopping. And there is no evidence regarding what would happen to the other employees' workload if one employee was excused from mopping.
Instead, HRH addresses only the first factor and Chad addresses only the last factor.
First, regarding "the employer's judgment as to which functions are essential," HRH relies primarily on the affidavit of Mr. Polatis, which states:
(Polatis Decl. ¶ 3.) HRH also submits the agendas from two staff meetings, in which dietary aides were given a lengthy list of tasks to perform, such as loading dish washers, placing mats on the floors, filling condiment dispensers, filling cereal dispensers, restocking pantries, preparing and delivering trays for patients who were bedridden, keeping the kitchen clean and organized, and wiping down tables, chairs, windows, napkin dispensers, and salt and pepper shakers. It also instructed aides to "[m]ake sure the floors are swept and mopped in the dining area, garbage area and serving area." (Ex. 7 to Chad Dep.) Chad confirmed that these agendas predated Mr. Polatis and that he was present at the meetings where they were distributed. (Chad Dep. at 51:8-54:25.)
Chad responds to this evidence by invoking the fifth factor, the "experience of past incumbents," and more specifically points to his own prior experience in the position. Chad argues that these two agendas and the declaration of Mr. Polatis are not determinative because for approximately two years, before Mr. Polatis became his supervisor, Chad was never required to sweep or mop the dining room. (Chad Dep. at 12:1-13:12; 87:8-89:8.)
This competing evidence is sufficient to raise questions of fact regarding whether mopping the dining room was an "essential" part of Chad's job. While courts are generally deferential to an employers' statements regarding whether certain conduct is an essential duty, that deference requires that the employers' actions be consistent with its statements.
Reviewing the evidence, the court concludes Chad's experience before Mr. Polatis became his supervisor is sufficient to raise triable issues of fact regarding whether mopping the dining room was an essential function of his employment and, by extension, whether Chad was a qualified individual.
Even assuming that mopping the dining room was an essential function, Chad would nevertheless still be a qualified individual so long as he could perform the task with a reasonable accommodation. Here, the parties debate the sufficiency of three possible reasonable accommodations: (1) notifying Chad's parents of his difficulties; (2) exempting Chad from all or part of his mopping duties; or (3) hiring a job coach.
HRH concedes that "[a]t some point while [Mr.] Polatis was the Dietary Director, [Chad] requested that his parents be notified of any discipline he received." (Def.'s Mot. Summ. J. at 7.) Nevertheless, HRH argues that it did all that it was required to do to ensure Chad's parents received this notice.
First, HRH maintains that it never agreed to
Given Chad's short-term memory loss, the court concludes it would not be a reasonable alternative to rely on Chad to convey information to his parents. Certainly, that should have been HRH and Mr. Polatis's experience after the food handlers license incident: telling Chad to tell his parents that he needed a license was not sufficient. But telling Rhonda directly was. (Chad Dep. At 59:7-61:20; Rhonda Dep. II at 8:3-10:4.) Similarly, Dave testified that when either he or his wife picked Chad up from work, Mr. Polatis would tell them what Chad's schedule was for the next day. As Dave put it, "[Mr. Polatis] didn't trust Chad to remember his schedule, but then again, he trusted him to tell us that something was wrong at work? That don't seem right to me, when he had every opportunity to talk to us every day." (Dave Dep. at 14:17-21.) While HRH was not required to provide the "best" accommodation, it was required to provide a "reasonable" accommodation. Relying on Chad to get a message to his parents was not reasonable.
Second, HRH contends that even if it would have been better to speak directly to Chad's parents, the issue is moot here because Chad testified at his deposition that he did, in fact, give his parents the disciplinary notices he had received at work. (Chad Dep. at 56:17-57:14; 63:12-64:6.)
Both Rhonda and Dave testified that they never received copies of these notices and that Chad never otherwise informed them that he was being disciplined at work. (
None of the cases cited by HRH support this supposed rule, and in fact, each of the cases to some degree stand for the opposite proposition. First, in
Next, in
HRH's final case,
In
The Tenth Circuit affirmed the trial court's decision. In doing so, it noted in passing that the district court need not have excluded the plaintiff's testimony as it did because "[the plaintiff's] alcoholism and memory problems go to the weight of his testimony, not its admissibility."
Here, like the plaintiff in
Finally, HRH contends that the above issue, regarding the propriety of using Chad as an intermediary with his parents, ultimately does not matter because on at least one occasion, Mr. Polatis did personally inform Rhonda of Chad's difficulties.
Rhonda testified that at some point in November 2014, a few weeks before Chad's termination, she picked up Chad from work and, as they were leaving, Mr. Polatis told her that "Chad's struggling mopping the floor, having a hard time mopping the floor." (Rhonda Dep. II at 42:21-43:9.) Rhonda then testified that in response to Mr. Polatis's concerns, she asked him "`Do you think it would help if I brought in a job coach? You know, I can bring in a job coach if he needs one.' And [Mr. Polatis] kind of just walked away and didn't say anything else." (Rhonda Dep. II at 42:2-7.)
The court concludes that it is for the jury to decide whether Mr. Polatis's statement sufficiently put Rhonda on notice of the problem. After all, while it appears Mr. Polatis did mention the issue to Rhonda, he never informed her of the seriousness of the problem. There is no evidence that Mr. Polatis told her about the corrective action notices or the improvement plan or about the likelihood that Chad would be fired just a couple of weeks later if his performance did not improve. In fact, Rhonda's follow-up question appeared to be an effort to understand the seriousness of the problem, and yet Mr. Polatis reacted by just "walk[ing] away." Because there is no evidence that Mr. Polatis informed Rhonda that Chad was about to be fired over the issue, the significance, if any, of this conversation must be determined by a jury.
For all of the above reasons, the court concludes there are triable issues of fact regarding whether HRH properly attempted to reasonably accommodate Chad by informing Chad's parents of his difficulties.
Rhonda and Dave claim that, had they been informed of his difficulties, they would have been able to arrange a reasonable accommodation for Chad at work. One accommodation they propose would be to either entirely exempt Chad from mopping the dining room (Rhonda Dep. II at 67:9-14; Dave Dep. at 39:20-40:4) or arrange for Chad and other employees to each mop a smaller section of the dining room so that Chad would never be required to mop the entire space (Dave Dep. at 40:8-17).
HRH argues that, although it exempted Chad from this work for the first two years of his employment, it had no legal obligation to continue doing so because such an accommodation would be unreasonable as a matter of law:
The court notes that this limitation only applies if mopping the dining room was, in fact, an essential function of Chad's job. According to one of the regulations cited by the
Similarly, the other regulation cited in
The court also notes that HRH has not responded to Dave's suggestion that Chad might have been able to mop a portion of the dining room so long as he did not have to mop the entire space. HRH simply does not address whether or not this would be a feasible accommodation. Accordingly, the court concludes there are triable issues of fact regarding whether HRH could have reasonably accommodated Chad by exempting him, in whole or in part, from these moppingduties.
Alternatively, Chad (and his parents) argue that hiring a job coach for Chad would have been an appropriate accommodation.
HRH cites
Here, by contrast, the record suggests that a job coach would be effective. Chad had previously worked with a job coach and the experience was successful. As Rhonda testified:
(Rhonda Dep. II at 13:7-15;
Because there are triable issues of fact regarding both whether Chad was a qualified individual and whether he could have been reasonably accommodated, HRH's motion for summary judgment is DENIED for the first cause of action.
HRH's Motion for Summary Judgment (ECF No. 19) is DENIED for the first cause of action and is GRANTED for the second and third causes of action.