Equal Employment Opportunity Commission v. Western Trading Company, Inc.

Filing 85

ORDER denying 64 Defendants Motion for Summary Judgment in its enttirety, by Judge William J. Martinez on 4/27/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-02387-WJM-MEH
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
TYLER RILEY,
Intervenor Plaintiff,
v.
WESTERN TRADING COMPANY, INC.,
Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiffs Equal Employment Opportunity Commission (“EEOC”) and Tyler Riley
(together “Plaintiffs”) bring this action against Defendant Western Trading Company,
Inc. alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101
et seq. (ECF No. 1 at 6-8.) Before the Court is Defendant’s Motion for Summary
Judgment (“Motion”). (ECF No. 64.) For the reasons set forth below, the Motion is
denied.
I. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem

Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Service, 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
The Court must resolve factual ambiguities against the moving party, thus favoring the
right to a trial. Quaker State Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522,
1527 (10th Cir. 1995); Houston v. Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir.
1987).
II. FACTUAL BACKGROUND
The relevant facts, viewed in the light most favorable to Plaintiffs, are as follows:
Plaintiff Tyler Riley has suffered from a seizure disorder1 since the age of 9. He
experiences intermittent “complex partial seizures”, at least once every two weeks,
regardless of whether he takes medication. (ECF No. 77-1 at 3-4.) During a seizure,
Riley is typically not fully conscious but he may be able to answer simple questions.
(Id.) He often turns blue around the mouth, bites his tongue, and may convulse. (Id. at
3.) Riley’s seizures last from ten seconds to five minutes and are followed by a period
1

The parties use the phrase “seizure disorder” and the term epilepsy interchangeably.
The Court will do likewise.

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of confusion that typically lasts between thirty and ninety minutes. (Id.) Riley can
usually tell when he will experience a seizure and has not been seriously injured by any
of his seizures. (Id. at 3.) The frequency of Riley’s seizures renders him unable to
drive. (ECF No. 77-22 at 7-8.)
Defendant Western Trading is an army surplus store that has two locations in the
Denver Metropolitan area. (ECF No. 77-25 at 5-7.) Riley began working as a sales
associate at Western Trading on May 2, 2008. (ECF No. 64-4 at 4.) As a sales
associate, Riley was required to tag, price, stock, and move merchandise, perform
general housekeeping, and assist customers. (ECF No. 64-5 at 2-4.) This work often
involve the use of an extension ladder as high as 20-25 feet in the air. (Id.)
During his scheduled shift on May 3, 2008, Riley suffered a seizure. (ECF No.
64-4 at 4.) Chris Moore, Riley’s supervisor, witnessed the seizure and sent Riley home
for the rest of the day. (ECF No. 77-6.) Riley was scheduled to work the following day
but Moore instructed him to not come back until May 5, 2008. (ECF No. 64-7 at 4-5.)
Riley was disoriented following the seizure and up until the time he left for home. (Id.)
At that time, Riley did not tell anyone that he suffers from epilepsy. (Id. at 3-4.)
On May 5, 2008, Riley reported for work as requested by Moore. (Id. at 5.) Riley
informed Moore that he had experienced a seizure on May 3, 2008 which caused his
erratic behavior . (ECF No. 77-27 at 13-14.) Riley told Moore that he had been to the
hospital and Moore asked Riley to provide medical documentation. (Id.) A three-page
medical report from Swedish Medical Center (“Swedish”) was faxed over less than an
hour later. (Id.; ECF No. 77-25 at 21.) Moore reviewed this report with Steven Finer,

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Defendant’s President and an owner of the company. (ECF No. 77-25 at 3; 23.) Finer
decided that he wanted more information about Riley’s medical condition before he
would permit Riley to resume work. (Id. at 23.) Moore sent Riley home and told him
that he would not be permitted to work until he provided additional medical information.
(ECF No. 77-27 at 17.)
On May 8, 2008, Defendant received a medical release from Swedish that
cleared Riley for work with no restrictions. (ECF No. 77-8.) Moore called Riley and told
him that he needed to provide documentation that specifically addressed ladders. (ECF
No. 77-25 at 26.) Within two hours, Defendant received another medical release from
Swedish stating that Riley had no ladder restrictions and was allowed to climb as high
as 20-25 feet. (ECF No. 77-9.) However, this was not sufficient information for
Defendant. (ECF No. 77-25 at 27.) Moore again called Riley and asked for more
information generally about his medical condition. (ECF No. 77-27 at 22.)
An hour later, Defendant received a fax from Stephanie Beltz, a nurse
practitioner who was Riley’s primary care provider. (ECF No. 77-10.) Beltz informed
Defendant that Riley was cleared for work with no restrictions and offered to be
contacted by phone if additional information was necessary. (Id.) Finer decided that
Riley could still not return to work. (ECF No. 77-25 at 30.) Moore contacted Riley with
this news and posed a number of questions to Riley that he needed to have answered.
(ECF No. 77-27 at 26.) No one attempted to contact Ms. Beltz at this time. (ECF No.
77-25 at 34.)
On May 14, 2008, Ms. Beltz sent Defendant another letter answering the
questions that Moore had posed to Riley. (ECF No. 77-12.) Ms. Beltz generally
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explained Riley’s seizure disorder, explained his current medication and that there were
no side effects, and informed Defendant that the only care they needed to provide for
Riley during a seizure was to have someone sit with him when he “comes out” so that
he knows where he is. (Id.) Ms. Beltz’s letter also stated that Riley’s only restriction
was that he was not allowed to drive, otherwise he could perform all duties of his job.
(Id.) Moore thought this letter was sufficient to allow Riley to return to work. (ECF No.
77-27 at 28.) However, Finer believed that still more information was required. (ECF
No. 77-25 at 33.)
Finer instructed Tiffany East, an assistant manager, to call Ms. Beltz. (Id.) East
spoke with Ms. Beltz on May 14, 2008 and asked Ms. Beltz how frequently Riley should
be expected to have seizures. (ECF No. 77-23 at 5.) Ms. Beltz was unable to assure
East that Riley would not suffer any additional seizures but stated that they should
decrease in frequency if he takes his medication as prescribed. (Id.) East informed
Finer that Riley should not experience any more seizures if he took his medication as
prescribed. (ECF No. 64-8 at 6.) Finer decided that he now had sufficient information
to permit Riley to return to work. (ECF No. 77-25 at 49.)
Riley returned to work on May 15, 2008. (ECF No. 77-27 at 18.) On May 24,
2008, Riley called in sick and informed East that he had experienced a seizure and
been taken to the hospital the day before. (ECF No. 77-23 at 7.) East spoke with Finer
about Riley’s absence and drafted a set of three questions for Riley to provide to Ms.
Beltz about Riley’s medical condition: (1) why was Riley still having seizures even
though medicated; (2) is it okay to be on extension ladders 12 to 14 feet high; and (3)
what is the next step to ensure that Riley remains safe, including a possible change in
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his medication. (ECF No. 77-13.)
On May 25, 2008, Riley returned to work with a doctor’s note for his prior
absence. (ECF No. 77-14.) Riley informed East that, regardless of his medication, he
would always have seizures. (ECF No. 77-23 at 15.) East gave Riley the three
questions that she had drafted and Finer had approved. (Id. at 17.)
On May 29, 2008, Riley had not provided any additional medical information and,
upon reporting for work, Moore told Riley to leave and get off the property. (ECF No.
77-28 at 8.) Moore informed Riley that he could not return to work until Defendant had
the chance to review his paperwork. (Id. at 13-14.)
On June 3, 2008, Riley obtained another note from Ms. Beltz. (ECF No. 77-15.)
It stated that Riley’s medication had been increased in hopes of preventing another
seizure. (Id.) Riley provided this note to Finer. (ECF No. 77-25 at 41.) Finer admits
that Ms. Beltz’s June 3, 2008 note answered the third question posed to Riley by East.
(Id. at 44-45.) Riley had already provided the information that answered the first two
questions. (ECF No. 77-27 at 29-30.)
Despite providing this information, Riley was not permitted to return to work. On
June 5, 2008, Finer wrote a letter to Riley stating that Beltz’s June 3, 2008 letter did “not
come close to answering the specific questions that were asked about the effects of
your condition on your ability to safely work.” (ECF No. 64-3 at 8.) Finer stated that
Defendant would “hold [Riley’s] position . . . until such time as your doctor can provide
us with specific assurances that you can safely perform your job.” (Id.) No one from
Western Trading attempted to contact Riley after this letter. (ECF No. 77-25 at 42-43.)
Riley’s last day of work for Defendant was May 29, 2008. (ECF No. 77-28 at 8.)
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III. ANALYSIS
On these facts, Plaintiffs bring three claims under the ADA: (1) disability
discrimination; (2) failure to accommodate; and (3) unlawful co-mingling of personnel
and medical records. (Compl. at 6-8.) Defendant moves for summary judgment on all
claims. (Mot. at 1.) The Court will address each claim in turn below.
A.

Disability Discrimination / Disparate Treatment
The ADA prevents employers from discriminating “against a qualified individual

on the basis of disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of
discrimination under the ADA, the plaintiff must show: (1) he is a “disabled” person
under the ADA; (2) he is qualified to perform the essential functions of the job in
question; and (3) he was discriminated against because of his disability. Mauerhan v.
Wagner Corp., 649 F.3d 1180, 1185 (10th Cir. 2011). To defeat Defendant’s Motion,
Plaintiffs must show that there is a genuine dispute of material fact on each element of
this prima facie case. MacKenzie v. Denver, 414 F.3d 1266, 1274 (10th Cir. 2005).
1.

Whether Riley is a “disabled” person

The first element of a discrimination claim under the ADA is proof that the
plaintiff has a qualifying “disability” under the statute. The ADA defines “disability” as:
“(A) a physical or mental impairment that substantially limits one or more of the major
life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C.A. § 12102(2).
Defendant contends that Riley was not disabled because his seizure disorder did
not substantially limit one or more major life activities. (Mot. at 16-17.) The term “major

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life activities” is not defined in the statute, but courts typically look to federal regulations
which define it as “functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.” Kellogg v.
Energy Safetcy Servs., Inc., 544 F.3d 1121, 1125 (10th Cir. 2008) (citing 29 C.F.R. §
1630.2(I)). “Substantially limits” is defined as “[s]ignificantly restricted as to the
condition, manner or duration under which an individual can perform a particular major
life activity as compared to the condition, manner or duration under which the average
person in the general population can perform that same major life activity.” 29 C.F.R. §
1630.2(j)(1).
Plaintiffs contend that there is a genuine dispute of fact as to whether Riley’s
seizure disorder substantially limits one or more of his major life activities. (Opp. at 2123.) The Court agrees. As Plaintiffs point out, the Tenth Circuit has held that
“ascertaining whether the impairment substantially limits the major life activity is a
factual question for the jury.” Doebele v. Sprint/United Management Co., 342 F.3d
1117, 1129 (10th Cir. 2003). Other courts dealing with cases of epilepsy far less severe
than that present here have held that summary judgment on this issue is not
appropriate. See, e.g., Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933,
937-38 (3d Cir. 1997) (question of fact for jury resolution when plaintiff had suffered
only one seizure in last thirty years); EEOC v. Rite Aid Corp., 750 F.Supp.2d 564, 56970 (D. Md. 2010) (plaintiff had suffered eight seizures in two years).
“[W]hether a person has a disability under the ADA is an individualized inquiry.”
Sutton v. United Airlines, 527 U.S. 471, 483 (1999). The Court finds that Plaintiffs have

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presented sufficient evidence regarding the severity of Riley’s seizure disorder and the
manner in which it affects his life so as to warrant the jury determining whether it
substantially limits one or more of his major life activities. As such, Plaintiffs have
shown a genuine dispute of fact as to the first prong of their disability discrimination
claim.
2.

Qualified to perform the essential functions of the position

Defendant contends that Plaintiffs cannot show that Riley was qualified to
perform his job because he was receiving Social Security Disability Insurance (“SSDI”)
benefits during his employment. (Mot. at 18-19.) Defendant argues that Plaintiffs’
“assertions that Riley is a qualified person with a disability under the ADA are
inconsistent with Riley’s status as a disabled person under the Social Security Act.”
(Id.)
In support of this argument, Defendant relies on Cleveland v. Policy
Management Systems Corporation, 526 U.S. 795 (1999) in which the lower courts held
that the receipt of SSDI benefits created a rebuttable presumption that the plaintiff was
judicially estopped from asserting that he was disabled under the ADA. Id. at 799. The
Supreme Court reversed and held that “the two claims do not inherently conflict to the
point where courts should apply a special negative presumption like the one applied by
the Court of Appeals here.” Id. at 802. The Supreme Court pointed out that the SSDI
process does not take into account an individual’s ability to work with reasonable
accommodation, which is a crucial element in the ADA. Id. at 803. The Supreme Court
also noted that the ADA process is individualized and particularized to a specific job

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and its duties while the SSDI process is generalized. Id. Finally, the Supreme Court
noted that an individual’s health condition may change such that they qualified for SSDI
benefits at one point but were later able to perform all of the essential functions of a
particular job. Id. at 805.
Ultimately, the Supreme Court concluded that an ADA plaintiff who is receiving
or has received SSDI benefits must proffer an explanation as to why his ADA claim is
not incompatible with the receipt of SSDI benefits. Cleveland, 526 U.S. at 806. Here,
Plaintiffs have offered such an explanation.
Plaintiffs point out that Defendants have failed to show that Riley made any
affirmative representation regarding his ability to work during his SSDI process because
Riley was found disabled by the Social Security Administration at step three of the fivestep process due to his seizure disorder being a listed impairment. See 20 C.F.R. §
404.1520(a) (“If you have an impairment(s) that meets or equals one of our listings in
appendix 1 of this subpart and meets the duration requirement, we will find that you are
disabled.”); SSA List of Impairments § 11.00 (including epilepsy in list of impairments).
The findings regarding the ability to work come in steps four and five of the process. Id.
Thus, there is no evidence in the record that Riley made an affirmative statement
regarding his ability to work which must be distinguished in this case.
Additionally, as noted by the Supreme Court in Cleveland, the Social Security
Administration’s determination of Riley’s ability to work did not consider whether
reasonable accommodations would permit him to perform the essential duties of a job.
Plaintiffs have presented evidence that many employers have been able to

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accommodate workers with epilepsy. (ECF No. 77-1 at 5-6.) This is an additional
explanation as to why Riley’s receipt of SSDI benefits is not incompatible with his
contention that he is able to perform all of the essential functions of Defendant’s sales
associate position.
Aside from the argument discussed above, Defendant does not contend that
Riley was unable to perform any particular job duty of the sales associate position.
Accordingly, the Court finds that Plaintiffs have met their prima facie burden with
respect to the second prong of their disability discrimination claim.
3.

Whether Riley was Discriminated Against Because of his Epilepsy

When the alleged discrimination relates to employment status, a plaintiff can
satisfy the third prong of his prima facie test by showing that the employer terminated or
took adverse action against the employee under circumstances which give rise to an
inference that the termination was based on his disability. Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir. 1997).
Defendant contends that Plaintiff cannot show that he suffered an adverse
employment action. (Mot. at 25-26.) The Tenth Circuit liberally defines the phrase
“adverse employment action.” See Gunnell v. Utah Valley State College, 152 F.3d
1253, 1264 (10th Cir. 1998). The Supreme Court has held that an adverse employment
action is anything that “constitutes a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998).

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The evidence shows that Riley was twice told to leave work and not return until
he provided additional medical documentation. (ECF No. 77-28 at 14.) The Court fails
to see how this is any different from being placed on an unpaid leave or suspension.
Riley had previously informed Defendant that, regardless of his medication, he would
continue to have seizures. (ECF No. 77-23 at 15.) Despite this notification, Defendant
informed Riley that he would not be permitted to return to work “until such time as your
doctor can provide us with specific assurances that you can safely perform your job.”
(ECF No. 77-16.)
The Court finds that this evidence creates a genuine dispute of fact as to
whether Riley suffered an adverse employment action. Moreover, there is sufficient
evidence to allow a reasonable juror to conclude that this adverse employment action
was based on Riley’s disability. As such, the Court finds that Plaintiffs have met their
burden with respect to the third prong of the prima facie test.
The only basis upon which Defendant seeks summary judgment on the disability
discrimination claim is that Plaintiffs have not satisfied their prima facie burden with
respect to that claim. Because Plaintiffs have shown a genuine dispute of fact as to all
elements of the prima facie test, Defendant’s Motion for Summary Judgment is DENIED
as to Plaintiffs’ disability discrimination claim.
B.

Failure to Accommodate
The ADA requires an employer to make an effort to accommodate an

employee’s disability. See Wilkerson v. Shinseki, 606 F.3d 1256, 1265 (10th Cir.
2010); 42 U.S.C. § 12112(b)(5)(A). Federal regulations implementing the ADA require

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both the employer and employee to engage in an “interactive process” in order to
determine if a reasonable accommodation or reassignment can accommodate the
disabled employee. Id. Defendant’s only argument with respect to the failure to
accommodate claim is that Riley abandoned the interactive process. (Mot. at 21-24.)
“The federal regulations implementing the ADA ‘envision an interactive process
that requires participation by both parties.’” Templeton v. Neodata Servs., Inc., 162 F.3d
617, 619 (10th Cir. 1998) (quoting Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d
1130, 1135 (7th Cir. 1996)). Both parties must participate in good faith and must
“proceed in a reasonably interactive manner to determine whether the employee would
be qualified, with or without reasonable accommodations, for another job within the
company and, if so, to identify an appropriate reassignment opportunity if any is
reasonably available.” Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir.
1999).
Defendant argues that Riley abandoned the interactive process by failing to
provide medical information that it requested of him. (Mot. at 23.) The Court agrees
that a reasonable juror could find that Riley caused the breakdown of the interactive
process. Equally true, however, is the fact that a reasonable juror could find that
Defendant failed to engage in a good faith interactive process. Defendant continually
asked for more information or asked for the same information multiple times. Riley
responded promptly to all requests for additional medical information, provided seven
different documents regarding this medical condition, and gave Defendant the contact
information for his primary care provider. (ECF Nos. 77-7--77-10; 77-12; 77-14; 77-15;
77-27 at 21.) A reasonable juror could conclude that Defendant’s conduct through the
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interactive process was not undertaken in good faith. See Decree v. United Parcel
Servs., Inc., 2009 WL 3055382, *11 (D.N.J. Sept. 18, 2009) (employee’s
responsiveness in providing medical information created question of fact as to whether
he caused the breakdown of the interactive process).
Additionally, at some point during the interactive process, Riley suggested that
he could be transferred to a cashier position so that he would not have to be involved
with climbing ladders. (ECF No. 77-28 at 15.) Defendant never responded to Riley’s
request to transfer to a cashier position. Defendant also failed to consider whether
Riley might be able to continue serving as a sales associate but with the
accommodation of not having to climb ladders. (ECF No. 77-25 at 12.) A reasonable
juror could conclude that Defendant’s actions in this respect were not in good faith.
See Smith, 180 F.3d at 1174 (failure to consider employee for other vacant positions is
evidence of bad faith); Gomez v. Con-way Central Exp., Inc., 2009 WL 799243, *10
(D.N.J. March 24, 2009) (failure to timely consider request to transfer created dispute of
fact as to good faith).
Whether both parties acted in good faith with respect to their obligation to
engage in the interactive process is typically a question of fact for the jury. See Hines
v. Chrysler Corp., 231 F.Supp.2d 1027, 1051 (D. Colo. 2002); EEOC v. Convergys
Customer Management Group, 491 F.3d 790, 797 (8th Cir. 2007); Barnett v. U.S. Air,
Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (“summary judgment is available only where
there is no genuine dispute that the employer engaged in the interactive process in
good faith.”); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 318 (3d Cir. 1999) (“where

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there is a genuine dispute about whether the employer acted in good faith, summary
judgment will typically be precluded.”). Given the factual disputes regarding both
parties’ actions with respect to the interactive process, the Court finds that this issue is
appropriate for resolution by the jury. Accordingly, Defendant’s Motion for Summary
Judgment is denied as to Plaintiff’s failure to accommodate claim.
C.

Co-mingling of Records
The ADA provides that medical information collected by an employer must be

kept in “separate medical files and . . . treated as a confidential medical record.” 42
U.S.C. § 12112(c)(3)(B). Defendant contends that there is no evidence that it violated
this provision. In response, Plaintiffs point a statement made by Steven Finer, an
owner and president of Defendant Western Trading, that all employee records, whether
medical or not, were kept together.2 (ECF No. 77-19.) There is also evidence that,
when Defendant provided records to the EEOC, Riley’s medical records were mixed
together with non-medical personnel records. (Id.) This evidence creates a genuine
dispute of fact as to whether Defendant kept Riley’s medical records separately and
confidentially.
Because Plaintiff has produced evidence showing a dispute of fact as to whether
Riley’s medical records were co-mingled with his personnel records, Defendant’s
Motion for Summary Judgment is denied with respect to Plaintiff’s claim pursuant to 42
U.S.C. § 12112.

2

Defendant contends that Finer’s statement is hearsay and, therefore, the Court cannot
consider it on summary judgment. However, because Finer is Defendant’s president and an
owner of the company, his statements are that of a party-opponent and are not hearsay. Fed.
R. Evid. 801(d)(2).

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IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment
(ECF No. 64) is DENIED in its enttirety.
Dated this 27th day of April, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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