Gulley-Falzgraf v. Cherry Creek School District No. 5 in the County of Arapahoe and State of Colorado
Filing
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ORDER Defendants Motion for Summary Judgment ECF No. 25 is DENIED. This case shall proceed to trial on January 6, 2014 as previously scheduled, by Judge William J. Martinez on 3/29/2013.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-02019-WJM-BNB
KIMBERLY GULLEY-FALZGRAF,
Plaintiff,
v.
CHERRY CREEK SCHOOL DISTRICT NO. 5, in the County of Arapahoe and State of
Colorado
Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Kimberly Gulley-Falzgraf (“Plaintiff”) brings this action against her former
employer, Defendant Cherry Creek School District No. 5 (“Defendant”), alleging that her
termination violated the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§
12101 et seq. (Compl. (ECF No. 1) ¶¶ 40-43.) Before the Court is Defendant’s Motion
for Summary Judgment (“Motion”). (ECF No. 25.) 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. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. ANALYSIS
The ADA prohibits covered employers from discriminating against “a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). ADA discrimination claims
follow the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). To establish a prima facie case of discrimination, Plaintiff must show:
(1) she was disabled; (2) she was qualified, with or without reasonable accommodation,
to perform the essential functions of her job; and (3) her employer discriminated against
her because of her disability. Robert v. Bd. of Cnty. Comm’rs, 691 F.3d 1211, 1216
(10th Cir. 2012).
Defendant moves for summary judgment and argues that Plaintiff has failed to
meet her burden under each prong of her prima facie case. The Court will discuss each
in turn below.
A.
Whether Plaintiff was Disabled
Under the ADA, a person is disabled if she (1) has a physical or mental
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impairment that substantially limits one or more of his major life activities, (2) has a
record of such an impairment, or (3) is regarded by her employer as having such an
impairment. 42 U.S.C. § 12102(1).
In this case, Plaintiff contends that she meets the definition of disabled because
Defendant regarded her as having a disability. (ECF No. 28 at 18.) “An individual
meets the requirement of ‘being regarded as having such an impairment’ if the
individual establishes that he or she has been subjected to an action prohibited under
this chapter 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).
Defendant contends that there is no material dispute as to whether it regarded
Plaintiff as disabled. (ECF No. 25 at 9-10.) In support of this argument, Defendant
cites Sutton v. United Airlines, 527 U.S. 471 (1999). However, the ADA Amendments
Act of 2008 “was enacted with the explicit purpose of rejecting certain standards and
reasoning of several Supreme Court opinions regarding interpretation of the ADA.”
Rhodes v. Langston Univ., 462 F. App’x 773, 776 (10th Cir. 2011). One of the
Supreme Court opinions to which the 2008 Amendments were addressed was Sutton.
See PL 110-325, 11 Stat 3553 (September 25, 2008). As the acts at issue in this case
occurred after the 2008 ADA Amendments were passed, Sutton has little, if any,
relevance to this action. Additionally, many of Defendant’s citations to the Code of
Federal Regulations are to sections that are no longer valid or do not apply to whether
Plaintiff was “regarded as” having a disability.
Having reviewed the briefs filed in this case, the Court finds that Defendant has
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failed to meet its initial burden of showing that it is entitled to judgment as a matter of
law on the issue of whether Plaintiff was regarded as being disabled. Thus, the Court
denies Defendant’s Motion in this respect.
B.
Whether Plaintiff was a “Qualified Individual”
Defendant contends that Plaintiff cannot demonstrate that she is a “qualified
individual” because she “lacked the necessary DOT certification from a HealthOne
physician and thus was not ‘otherwise qualified’ under the ADA.” (ECF No. 25 at 12.)
“The term ‘qualified individual’ means an individual 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). Contrary to
Defendant’s assertion, the Court finds that there is a genuine dispute of fact as to
whether Plaintiff was a qualified individual. Although Plaintiff was not awarded a DOT
certificate by the physician who Defendant contracted with, she obtained a DOT
certificate from her own physician. (ECF No. 28-6 ¶ 18.) The physician that issued
Plaintiff’s DOT certificate was qualified and certified by the DOT to issue such
certificates. (Id.)
The basic job qualifications of the school bus driver position were: (1) high
school diploma; (2) commercial drivers’ license and certain other driver training; (3)
ability to meet insurability requirements; (4) background screening; and (5) clear record
from the Department of Motor Vehicles. (ECF No. 25-2 at 5.) Plaintiff has presented
evidence showing that she possessed these qualification and received favorable written
evaluations during her tenure with Defendant. (ECF No. 28-6 ¶ 6.) Thus, on the record
before the Court, it finds that Plaintiff has met her prima facie burden of showing that
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she was a “qualified individual”. See Wishkin v. Potter, 476 F.3d 180, 187 (3d Cir.
2007) (finding a dispute of fact as to whether the plaintiff was qualified for his position
where there was evidence that he performed the essential duties for nearly twenty
years).
C.
Whether Plaintiff’s Termination was Because of Her Perceived Disability
Defendant also contends that Plaintiff has not met her prima facie burden of
showing that her termination was “because of” her perceived disability. (ECF No. 24 at
15.) Specifically, Defendant argues that it was entitled to require that all of its bus
drivers be certified by the same medical provider and, therefore, the fact that
HealthOne would not renew Plaintiff’s DOT certificate was not discriminatory. (Id.)
Defendant also contends that it was entitled to accept the opinions and conclusion of
the HealthOne medical provider as he was a qualified physician. (Id. at 16.) As
discussed below, the Court finds that there are genuine disputes of fact as to each of
these points and, therefore, Plaintiff has met her prima facie burden.
Accepting the fact that Defendant may have been entitled to require all
employees to be certified by its chosen medical examiner, the circumstances
surrounding Defendant’s decision to change medical providers are sufficient to sustain
an inference of discrimination. The only reason given by Defendant as to why it chose
to switch DOT examiners from Concentra (whose physician certified Plaintiff) to
HealthOne (whose physician declined to certify Plaintiff) was that Concentra was
passing individuals that Defendant believed were not capable of performing certain
safety functions of the bus driver position. (ECF No. 28-2 at 7.) When asked to provide
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an example of an employee who Defendant believed had been improperly certified by
Concentra, the only example Defendant could provide was an overweight woman who
used a cane. (Id. at 8-10.) Plaintiff’s limitations due to her perceived disability are
similar to the limitations Defendant attributed to this other woman. (ECF No. 25-5 at 3.)
Therefore, the Court finds that a reasonable juror could conclude that the decision to
change providers from Concentra to HealthOne was motivated by the desire to
discriminate against individuals with perceived disabilities similar to Plaintiff. This
evidence alone is sufficient to meet Plaintiff’s burden of showing that Defendant’s
employment action was motivated by her perceived disability.
However, the manner in which Plaintiff’s DOT examination was conducted is also
evidence showing that Plaintiff was terminated because of her disability.1 During her
examination, Plaintiff was given an “agility test”. (ECF No. 28-6 ¶ 12.) Immediately
after completing the agility test, Plaintiff was informed that she passed and was
provided with a DOT card. (Id.) However, the DOT card was not signed by the
physician. (Id.) When Plaintiff asked the physician to sign the card, he responded that
he needed to speak with Defendant’s manager of safety and training before he could
issue Plaintiff’s DOT card. (Id. ¶ 13.) The fact that the medical provider—who should
have been exercising his independent medical judgment in determining whether to
renew Plaintiff’s DOT card—felt the need to consult with Defendant’s employer before
making his decision is evidence from which a reasonable juror could conclude that
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The parties argue the Motion for Summary Judgment in the framework of Plaintiff’s
prima facie burden. However, the Court finds that the same evidence discussed herein would
permit a reasonable juror to find that Defendant’s actions were a pretext for discrimination.
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Defendant was manipulating the DOT certification system so as to enable it to
terminate Plaintiff based on her perceived disability.
Additionally, two days later, Plaintiff received a phone call from the physician
during which he informed her that he would not renew her DOT card. (Id. ¶ 15.) When
Plaintiff asked why, the physician stated that she had failed her agility test. (Id. ¶ 16.)
When Plaintiff later asked to retake the agility test, she was not permitted to do so
because, contrary to what she had been informed earlier, “it is her severe medical
problems that disqualify her as a commercial driver and not simply her performance on
the agility test, per se.” (ECF No. 25-5 at 6.) The inconsistency of Defendant’s basis
for why Plaintiff’s DOT certificate was not renewed is additional evidence that
Defendant may have been motivated to terminate Plaintiff based on her perceived
disability. See Whittington v. Nordam Grp. Inc., 429 F.3d 986, 994 (10th Cir. 2005)
(holding that inconsistency in employer’s reasons for the termination is an indication of
pretext); see also Plotke v. White, 405 F.3d 1092, 1104 (10th Cir. 2005) (holding that
conflicting and changing evidence concerning the timing and reasons for termination
contributes to a showing of pretext).
On these facts, the Court finds that Plaintiff has met her prima facie burden of
showing that she was terminated as a result of her perceived disability.
III. CONCLUSION
In its Motion, Defendant argues only that Plaintiff has not met her prima facie
burden on her ADA claim. (ECF No. 25.) As discussed above, the Court disagrees.
Therefore, Defendant’s Motion for Summary Judgment (ECF No. 25) is DENIED. This
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case shall proceed to trial on January 6, 2014 as previously scheduled.
Dated this 29th day of March, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
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