Downing v. Department of Finance and Administration et al

Filing 76

ORDER: Downing's 39 Motion for summary judgment is denied. Defendants' 35 Motion for summary judgment is granted in part and denied in part. Defendants' supplemental 64 motion for summary judgment is granted in part and denied in part. The claims for trial are as follows: FMLA failure to reinstate; ADA/Rehab Act discrimination; ADA/Rehab Act accommodation; and Rehab Act retaliation. The Department's 58 motion in limine is granted in part and denied in part. An Amended Final Scheduling Order with a first-out trial setting will issue. Signed by Judge D. P. Marshall Jr. on 4/20/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

WILLIAM R. DOWNING, JR.

v.

No. 4:15-cv-570-DPM

DEPARTMENT OF FINANCE AND
ADMINISTRATION, an Agency of the
State of Arkansas; BOB HAUGEN and
DAVID JUSTICE, Both in their
Individual and Official Capacities

DEFENDANTS

ORDER
1.

Arkansas has a sideline in surplus personal property- office

furniture, vehicles, computers, cameras, and all kinds of things used in state
government. Rick Downing worked for the Department of Finance and
Administration handling, redistributing, and selling this property. At first his
position involved stocking the warehouse, inspecting property, and
sometimes driving across the state in delivery trucks. His responsibilities
changed, though, when he took on internet-based sales while filling in for a
retiring co-worker. This work took some time away from his warehousespecific duties. He did well and got positive reviews. Internet-based sales
later became Downing's primary weekly duty.

Downing began having hip problems around the time he started
working for the Department. Early on, he alerted his manager that eventually
one or both of his hips would need replacing. From 2011 to 2014, his hip
problems worsened. Downing's internet-based duties, which he says totaled
about 60% of his weekly time before leave, were undoubtedly easier on his
hips than when the Department had him working mostly (or entirely) in the
warehouse. Even with his primarily web-based work schedule, a double hip
replacement became necessary, and Downing requested, and was granted,
twelve weeks of FMLA leave.
While Downing was on leave, the Department trained another surplus
property agent, one Kelly, to fill in.

Kelly went about the same tasks

differently, spending less time at the desk than Downing did.

The

Department thought this was more efficient, and was pleased with Kelly's
work. So, when Downing came back from leave, the Department told him he

would be working on the new schedule- Downing would rotate with Kelly,
on a week-on, week-off basis between the warehouse and web duties. The
new schedule also ensured that two people were trained on the internet part
of the job, in the event one wasn't available. After Downing said his hips

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wouldn't allow him to work the new schedule, the Department asked him to
get a doctor's release clarifying his limitations and approving the new
schedule. He couldn't. His doctor said the best Downing could do was work
in the warehouse two days a week, not the four or five days in a row required
by the new schedule. The doctor also said Downing couldn't lift more than
fifty pounds. These were permanent restrictions. The Department, wanting
to keep the new, supposedly more efficient schedule, told Downing he
couldn't perform the essential functions of his job with his restrictions, and
fired him.
Downing has sued, claiming the Department violated the Americans
with Disabilities Act, the Rehabilitation Act, and the Family and Medical
Leave Act. (Early in the case, the Court dismissed Downing' s Arkansas Civil
Rights Act claim without prejudice. Ng 24.) The ADA and Rehab Act claims
are analyzed the same way; cases about each statute are instructive on the
other one. Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). Citing these
two laws, Downing says the Department discriminated against him because
of his disability, failed to reasonably accommodate his disability, and
retaliated against him for seeking an accommodation. Citing the FMLA, he

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claims that the Department retaliated and discriminated against him for
taking protected leave. Downing seeks partial summary judgment on three
particular issues;

and the Department says, in a motion for summary

judgment and a supplemental motion, that it should, for various reasons, win
the whole case as a matter of law. The best way to untangle things is to
analyze the parties' disputes by issues: Downing' s runs at judgment first;
then FMLA issues; next, some threshold points about the Rehab Act and the
ADA; and, finally, the deeper Rehab/ ADA issues. Long story short: the core
of this case needs a trial.
2. Downing isn't entitled to judgment as a matter of law on any issue.
First, he didn't face a blanket exclusion under the ADA. The Department
made an individual inquiry into his hip problems and resulting work
restrictions. School Board of Nassau County, Florida v. Arline, 480 U.S. 273,
287-89 (1987). The Department doesn't have a policy requiring full doctor

releases. Taking the facts in the light most favorable to the Department, it met
with Downing four times to discuss his abilities and limitations. NQ 37 at iii!
23, 27, 29, 40, 41. The decision to let him go, based on these partly disputed
conversations, was an individualized one. Second, Downing isn't entitled to

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summary judgment on his claim for failure to reinstate under the FMLA. The
record is unsettled; and a jury needs to decide what the specifics and essential
duties of his job were- both before and after his leave. While the Department
says it intended him to return to the same job, with the same pay, same title,
and same minimum requirements, Downing says that, on the Kelly schedule,
his job was different. 29 U.S.C. § 2614(a)(l)(A) & (B). Third, no change in job
duties-real or perceived-was made to interfere with, or because of,
Downing' s FMLA leave rights. 29 U.S.C. § 2615. There's no question that the
Department granted his leave willingly; and nothing of record shows that
anyone tried to persuade him not to take his leave. Pulczinski v. Trinity
Structural Towers, Inc., 691 F.3d 996, 1007 (8th Cir. 2012).

3. Two of Downing's three FMLA claims fail as a matter of law. First,
the Department didn't interfere with Downing's FMLA rights. Downing
requested leave, got it, and then came back to work. He wasn't discouraged
from taking leave or denied any entitlements. Ibid. Second, the Department
didn't retaliate against him for taking his protected leave. His absence
provided an occasion: it created circumstances wherein the Department
could try something new. It did. Downing' s firing was, of course, an adverse

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employment action; but there's no evidence that he was fired because he took
leave. Wierman v. Casey's General Stores, 638 F.3d 984, 999-1000 (8th Cir. 2011).
The causation facts point only in one direction: his post-return restrictions
and the new schedule.
Downing' s failure-to-reinstate claim, though, is for the jury. There are
material disputed facts. It's clear that Downing' s title and pay were the same
when he returned from leave. And he had to work in the warehouse some
and had some web duties. The skills necessary for each slice didn't change.
But it's also clear that Downing' s schedule was different when he came back.
The record goes both ways about whether Downing, working the modified
schedule, was restored to an equivalent position under 29 U.S.C. § 2614(a), or
to a different position where "the job duties and essential functions of the
newly assigned position [were] materially different from [Downing' s] preleave position." Cooper v. Olin Corporation, Winchester Division, 246 F.3d 1083,
1091 (8th Cir. 2001). The post-leave position didn't have to be identical, only
substantially similar in skill, effort, responsibility, and authority. 29 C.F.R. §
825.215; Cooper, 246 F.3d at 1091-92. Deciding the material facts here is the
sole FMLA issue for trial. If the jury concludes that the positions were

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equivalent, then the Department isn't liable under the FMLA for firing
Downing if it decided he couldn't do the job's essential functions. Spangler v.
Federal Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002). The

regulations acknowledge that these circumstances may raise an ADA issue,
but not an FMLA issue. 29 C.F.R. § 825.216(c).
The individual-capacity FMLA claims against Justice and Haugen drop
out in any event. If the position was equivalent, then no FMLA violation
occurred, so the individual claims fail. But, if Downing wasn't reinstated to
a substantially similar position, then Justice and Haugen are entitled to
qualified immunity.

The FMLA reinstatement law is not so clearly

established that a reasonable manager in Justice and Haugen's place would
have known he was violating that law. Mahers v. Harper, 12 F.3d 783, 785-86
(8th Cir. 1993); Sexton v. Martin, 210 F.3d 905, 909-10 (8th Cir. 2000). The
merits are close: The need for a trial to resolve whether there were material
differences in the pre-leave and post-leave positions shows the reasonableness
of Justice and Haugen's belief that each was acting within the law.

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4. The Department* is partly right and partly wrong in its supplemental
push for judgment as a matter of law. Downing's objections to the Court
reaching the merits of these belated points are overruled. The extended
briefing allowed, and the trial continuance, eliminate any prejudice in the
arguments' tardiness. And these are threshold law issues about the Rehab
Act and the ADA that could be raised at trial. Better to take them up now.
Exhaustion first. Defendants concede, Ng 75 at 3 n .2, that the Rehab Act
doesn't require exhaustion. Miener v. Missouri, 673 F.2d 969, 978 (8th Cir.
1982). The ADA does. Randolph v. Rodgers, 253 F.3d 342, 347 n.8 (8th Cir.
2001). It's undisputed that Downing didn't exhaust his AD A retaliation claim
with the EEOC. Ng 64-1. So the Department prevails on that point as a matter
of law.
Next, the Department's new no-sole-cause attack on all Downing's
Rehab Act claims. This attack fails, though without prejudice to what the
proof shows at trial. All but one of the FMLA claims has passed out of the
case in the Defendants' favor.

The law allows any plaintiff to pursue

*
Downing' s ADA/Rehab Act claims are pleaded against Haugen and
Justice only in their official capacities. They and the Department are one in
the Court's analysis.
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alternative claims. And the Court declines to hold that Downing' s two
unsuccessful FMLA claims undermine his Rehab Act claims as a matter of
law.

Downing is right, moreover, when he responds that his alleged

disability may or may not have been the sole cause of any Department action.
The conclusion will depend on the proof at trial.
5. The Department isn't entitled to judgment as a matter of law on
Downing's Rehab/ ADA claims. The Court discusses these overlapping
claims together.

Material disputed facts exist on discrimination,

accommodation, and retaliation.
The threshold issue on the first two claims is actual disability. The proof
here leans hard in Downing' s direction. As he points out, the Department's
authority is outdated because Congress amended the ADA in 2008, loosening
the legal standard. Summers v. Altarum Institute, Corp., 740 F.3d 325, 329 (4th
Cir. 2014) discusses the statutory and regulatory changes made after Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). At a

minimum, Downing' ship-related permanent restrictions, especially in lifting,
create a fact issue on disability.

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The deep issue on discrimination is whether Downing could do the
essential functions of his job after his hip replacements. Fjellestad v. Pizza Hut

of America, Inc., 188 F.3d 944, 950-51 (8th Cir. 1999). But the record is mixed
on exactly what his job was. Compare NQ 53-1at2 with NQ 53-2 at 11-12. The
parties reasonably dispute the job's essential functions - in particular, the
lifting requirement. NQ 35-9, 35-18, 54 at 9-10 & 55 at 28. Last, and this edges
into his next claim, the material facts are disputed on whether (with or
without accommodation) Downing could perform those essential functions.

Compare Faidley v. United Parcel Service ofAmerica, Inc., 2017 WL 1228565 at *2
(8th Cir. 4 April 2017), with Kallail v. Alliant Energy Corporate Services, Inc., 691
F.3d 925, 930-33 (8th Cir. 2012).
On accommodation, the record is likewise mixed on whether Downing
was actually disabled, whether the Department was aware of a disability, and
whether he sought an appropriate accommodation. The parties vigorously
dispute the Department's good faith in trying (or not) to work things out.

NQ 54 at 14; NQ 56 at

~

24. Was something less than the Kelly schedule

possible without sacrificing efficiency? This, too, is for the jury.

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On retaliation, finally, there are echoing factual disputes and one new
one. If Downing can convince the jury that he sought accommodation
(regardless of any disability), then he must also prove that his post-request
firing was because he sought that accommodation. Heisler v. Metropolitan

Council, 339 F.3d 622, 632 (8th Cir. 2003). Reasonable minds could reach
different conclusions on the record presented so far. We'll see what the jury
concludes really happened.
6. The Department's motion in limine is granted in part and denied in
part. The posting for Downing' s current warehouse job at U AMS, Ng 53-1, is
excluded. It's not relevant to his claims here. But we'll have to take the
internal audit documents, Ng 53-7, piece by piece. Belated disclosure by
Downing doesn't resolve admissibility. These are Department documents.
Haugen and Justice were involved in the audit, so they knew that it was a
source for relevant evidence.

After Downing' s deposition, Department

counsel was also on notice about this source of information. We're not going
to try the internal audit. But the fact that it was done, and the decision
reached, are admissible. And Department statements (e.g., the Leathers

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letter), and statements by Haugen and Justice, during the audit are
admissible. FED. R. EVID. 801(d)(2).

* * *
Downing's motion for summary judgment, NQ 39, is denied.
Defendants' first motion for summary judgment, NQ 35, is granted in part and
denied in part. Defendants' supplemental motion for summary judgment,
NQ 64, is granted in part and denied in part.

Here are the claims for trial:
•

FMLA failure to reinstate;

•

ADA/Rehab Act discrimination;

•

ADA/Rehab Act accommodation; and

•

Rehab Act retaliation.

The Department's motion in limine, NQ 58, is granted in part and denied in
part. An Amended Final Scheduling Order with a first-out trial setting will
issue.
So Ordered.

D.P. MarShall;
United States District Judge

a.o
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Ap-b l 01.017