Cole v. Weatherford International, LLC et al
Filing
62
ORDER granting in part and denying in part 34 . The Court holds as a matter of law that Cole was qualified to perform the Equipment Operator IV position. Motion for Partial Summary Judgment; denying 38 . by Judge William J. Martinez on 06/23/2015.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-1115-WJM-KMT
JAMES COLE,
Plaintiff,
v.
WEATHERFORD INTERNATIONAL, LLC, a Delaware corporation f/k/a
WEATHERFORD INTERNATIONAL, INC., and
WEATHERFORD, U.S., L.P., a Louisiana corporation,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT, AND DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
Plaintiff James Cole (“Cole”) sues Defendants Weatherford International, LLC,
and Weatherford U.S., L.P. (collectively, “Weatherford”), alleging violations of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. Before the Court
are the parties’ competing motions for summary judgment (ECF Nos. 34 (Cole) & 38
(Weatherford)). For the reasons explained below, the Court holds as a matter of law
that Cole was “qualified” for the position at issue here, and therefore grants Cole’s
motion to that extent. Both motions are otherwise denied.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “g enuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence
and all reasonable inferences therefrom in the light most favorable to the nonmoving
party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In
addition, the Court must resolve factual ambiguities against the moving party, thus
favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th
Cir. 1987).
II. FACTS
The following facts are undisputed unless otherwise noted. Some of these facts
derive from materials filed under Restricted Access. (See, e.g., ECF No. 46 through
46-19.) To the extent those materials are quoted or summarized below, the Court has
concluded that the portions quoted or summarized do not meet the requirements for
Restricted Access. See D.C.COLO.LCivR 7.2(c)(2)–(4).
A.
Cole’s Heart Attack and Back Surgery
In April 2011, Cole was performing heavy oilfield labor in Texas for a company
named Crown Supply Company (not a party here). (ECF No. 36 at 2, ¶¶ 3, 7.) Around
that time, Cole experienced some debilitating symptoms, was evaluated at a hospital,
2
and was told by the doctors there that he may have recently had a heart attack. (Id. at
2–3, ¶¶ 7–10.) Additional testing detected a coronary blockage and Cole underwent a
stent placement procedure. (Id. at 3, ¶ 11.) He was off work for about six weeks, but
then returned to Crown Supply and worked without restrictions. (Id. ¶¶ 12, 14.)
In November 2011, Cole had back surgery to address a bulged disk. (ECF No.
46 at 5, ¶ 51; ECF No. 46-4 at 5.) For the next six weeks, Cole was subject to certain
restrictions with respect to lifting and bending. (ECF No. 46-4 at 5.) Following that six
weeks, Cole returned to “life as normal.” (Id.)
B.
Cole Joins Weatherford
Cole continued at Crown Supply until March 2012, when he accepted a position
with Weatherford, which is also in the oilfield business. (ECF No. 36 at 3, ¶ 14.)
Weatherford hired Cole to be an Equipment Operator IV for its operations in Williston,
North Dakota. (Id. at 4, ¶ 22.) Weatherford requires its Equipment Operators to have a
commercial driver’s license (CDL), or to obtain one within ninety days of being hired.
(ECF No. 34 at 4, ¶ 12; ECF No. 34-5 at 3.)
C.
Cole’s Physical Exam
Cole’s first week with Weatherford was actually an orientation held from March 5
through March 9, 2012, at a hotel in Denver. (ECF No. 34 at 4, ¶¶ 13–14.) On March 7
(Wednesday) of that week, in the late afternoon, Cole underwent a physical
examination required by the Department of Transportation (DOT) for any individual
intending to obtain or maintain a CDL. (Id. ¶ 15; ECF No. 36 at 2, ¶¶ 4–5.) Cole
disclosed his back surgery and heart stent procedure to the examining physician,
3
Dr. Martin Kalevik. (ECF No. 34 at 5, ¶ 16.) Dr. Kalevik then informed Cole that he
would need additional information from Cole’s personal cardiologist and orthopedist
before completing the physical exam. (Id.) Dr. Kalevik gave Cole certain release forms
to facilitate transmission of his medical information from his other doctors and asked
Cole to arrange for those doctors to send that information. (Id. ¶ 17.) Cole “understood
that Dr. Kalevik would issue him a DOT medical card as soon as he received
appropriate records from Mr. Cole’s physicians,” but Cole “did not have a reasonable
opportunity to communicate with his physicians that day because his exam ended at the
close of business.” (Id. ¶ 18.)1
Soon after Cole left Dr. Kalevik’s office, someone from that office telephoned
Weatherford and spoke with Phyllis Wynn-Grove, who was, at the time, a Weatherford
human resources representative (she is no longer employed with Weatherford). (ECF
No. 34 at 5, ¶ 19; ECF No. 47, ¶ 19.) Precisely what Dr. Kalevik’s office said to
Wynn-Grove is unclear. Wynn-Grove’s deposition testimony vacillates between, on the
one hand, suggesting that Dr. Kalevik’s office said nothing more than that Weatherford
should look closely at Cole’s medical history, and, on the other hand, that Dr. Kalevik’s
1
Weatherford admits that Cole told Dr. Kalevik about his back surgery and stent
procedure, but neither admits nor denies Cole’s assertion that Dr. Kalevik asked Cole to supply
more information from his personal physicians. (ECF No. 47 at 3, ¶ 16.) The Court therefore
deems Cole’s assertion admitted. As for Cole’s assertions regarding (i) the release forms,
(ii) his understanding that he would receive his DOT medical card upon supplying the
appropriate information, and (iii) his lack of a reasonable opportunity to communicate with his
physicians before the end of the business day, Weatherford states that it is “without sufficient
information in the record or otherwise to form a belief as to the truth of [those] statements . . .
and therefore denies them.” (Id. ¶¶ 17–18.) Given that discovery has closed, this is not an
appropriate denial. See WJM Revised Practice Standards III.E.5 (“Any denial shall be
accompanied by a brief factual explanation of the reason(s) for the denial and a specific
reference to admissible evidence in the record supporting the denial.”). The Court therefore
deems these assertions admitted as well.
4
office specifically discussed Cole’s previous heart and back conditions and the need f or
Cole to obtain more information from his own doctors. (ECF No. 46-9 at 2–4.)
Based on Wynn-Grove’s deposition testimony, Cole further claims that
Dr. Kalevik’s office also spoke with Wynn-Grove’s boss, Weatherford human resources
supervisor Michelle Brannon, at the same time it spoke with Wynn-Grove. (ECF No. 34
at 5, ¶ 19.) Wynn-Grove’s testimony, however, is somewhat unclear on this point as
well. At one point Wynn-Grove states that she and Brannon “both spoke with”
Dr. Kalevik’s office. (ECF No. 46-9 at 2, 4.) Later, however, Wynn-Grove suggested
that she took the phone call and, as she learned thing s from Dr. Kalevik’s office, she
relayed the information to Brannon, who was apparently in the same room. (Id. at 3.)
In any event, at least three matters are undisputed. First, Dr. Kalevik’s office did
not report to Weatherford either that Cole had passed or that he had failed his physical.
(ECF No. 34 at 6, ¶ 22; ECF No. 47 at 4, ¶ 22.) Second, Dr. Kalev ik’s office never told
Weatherford that Cole could not pass a DOT physical. (ECF No. 34 at 6, ¶ 21.) Third,
Brannon reacted to the information from Dr. Kalevik’s office—whatever it was—by
concluding that Cole “would be considered a high risk and that she [Brannon] did not
see the need to go any further with him.” (Id. ¶ 26.)2
2
Weatherford responds to this third factual assertion as follows: “Admitted that
Wynn-Grove testified that Brannon ‘basically said’ to Wynn Grove [sic] ‘that [Plaintiff] would be
considered a high risk and that [Brannon] really didn’t see any need to go any further.’ Denied
that this statement was made to Cole or was made at the time of Cole’s termination.” (ECF No.
47 at 4, ¶ 26 (citations omitted).) Notably, this response does not object on hearsay grounds
and does not claim that Wynn-Grove inaccurately recalled what Brannon said to Wynn-Grove.
Accordingly, the Court deems it admitted that Brannon spoke the words reported by
Wynn-Grove.
5
D.
Cole’s Termination
Sometime before the next morning, Brannon made the decision to terminate
Cole’s employment (ECF No. 46 at 7, ¶ 68), 3 although the task of breaking the news to
Cole fell to Wynn-Grove. Thus, on the morning of Thursday, March 8, 2012 (i.e., the
morning after Cole’s physical), Wynn-Grove pulled Cole out of orientation meetings to
inform him that he had been terminated. (ECF No. 34 at 6, ¶ 27.) According to Cole,
Wynn-Grove specifically said, “Mr. Cole[,] because of your health history you cannot
work for Weatherford.” (ECF No. 34-7 at 5.) Wynn-Grove testified that she took a
much less direct approach:
[F]irst, I had to tell him, “Mr. Cole, based on the information
we’ve received, we don’t think this is a good fit for
Weatherford.” And that’s when he said to me, “Well, why is
that?” . . . And I said, “Basically, just looking over
everything, we just don’t feel this is a good fit.” He kept
pressing. He said, “If it’s about my heart, my doctor can
submit information.”
(ECF No. 46-9 at 5 (internal quotation marks inserted for clarity).) According to Cole,
Wynn-Grove replied by stating, “it doesn’t matter, you can’t work for Weatherford.”
(ECF No. 34-7 at 5.)
The following day (Friday, March 9), Cole met with Brannon to protest his
treatment “and insisted that he could pass the physical if he was provided the
opportunity to submit the medical records to Dr. Kalevik. Ms. Brannon said the matter
3
In response to Cole’s statement of facts, Weatherford only admits that Brannon
“participated in” the decision to fire Cole. (ECF No. 57 at 5, ¶ 68.) In argument, however,
Weatherford affirmatively relies on the notion that Brannon was “the decision-maker with
respect to termination of [Cole’s] employment.” (ECF No. 47 at 8.) The Court therefore deems
it admitted that Brannon made the decision to fire Cole.
6
was closed, and she would not talk to him about it further.” (ECF No. 34 at 7, ¶ 33.) 4
At this same meeting, Brannon offered Cole “a warehouse position.” (ECF No.
36 at 7, ¶ 42; ECF No. 46 at 8, ¶ 76; ECF No. 47-4 at 5–6.) According to Cole, this
position paid $15.10 per hour (as opposed to $22.00 per hour f or an Equipment
Operator IV) and required permanent relocation to North Dakota (as opposed to
Equipment Operator IV, which permitted the employee to stay in company facilities
while on duty and to be flown home while off duty). (ECF No. 46 at 8, ¶¶ 77–78.) Cole
says that he rejected the warehouse position given these terms. (Id. ¶ 79.)
Weatherford denies that these were the terms of the warehouse position, submitting
evidence that the position had a pay range between $13.99 and $20.29 per hour, and
that others in this position would rotate between their homes and North Dakota. (ECF
No. 57 at 7, ¶¶ 77–78.)
Regardless, less than three weeks later, Cole arranged for and passed a DOT
physical. (ECF No. 34 at 7, ¶ 35.)
III. ANALYSIS
ADA discrimination claims follow the familiar burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Gulley-Falzgraf v.
4
Once again, this is an assertion from Cole that the Court must deem admitted by
Weatherford. Weatherford responds to the assertion by admitting that it “accurately
paraphrases Cole’s testimony that he told Brannon he could pass the DOT physical if he
presented additional medical records to Dr. Kalevik,” but denying “that the cited testimony
supports that Cole met with Brannon on the day prior [sic?] or that Brannon stated ‘the matter
was closed.’” (ECF No. 47 at 6, ¶ 33.) Weatherford does not deny that Cole actually said what
he claims to have said, and the Court’s review of the underlying deposition testimony fully
supports Cole’s characterization of what Brannon said. Weatherford does not object on
hearsay grounds and, most strikingly, submits nothing from Brannon herself, giving her side of
the story. Accordingly, Weatherford’s response does not create a factual dispute.
7
Cherry Creek Sch. Dist. No. 5, 2013 WL 1313791, at *1 (D. Colo. Mar. 29, 2013).
Thus, Cole must first establish a prima facie case of disability discrimination. If he
does, the burden shifts to Weatherford to articulate a legitimate, nondiscriminatory
reason for the allegedly discriminatory act. If Weatherford carries that burden, the
burden shifts back to Cole to prove by a preponderance of the evidence that
Weatherford’s reasons are a pretext for unlawful discrimination. See Thomas v. Avis
Rent a Car, 408 F. App’x 145, 152 (10th Cir. 2011).
To establish a prima facie case of discrimination under the ADA, Cole must show
(1) he is disabled (or was “regarded as” disabled by Weatherford) as defined by the
ADA, (2) he is qualified to perform the essential functions of the Equipment Operator IV
position with or without reasonable accommodation, and (3) he suffered discrimination
as a result of his real or perceived disability. See Koessel v. Sublette Cnty. Sheriff’s
Dep’t, 717 F.3d 736, 742 (10th Cir. 2013). The Court will address each element in turn.
A.
Presence of a Disability
Cole may establish the first element of a prima facie case by demonstrating
actual disability, a “record of” disability, or that Weatherford “regarded” him as disabled.
42 U.S.C. § 12102(1).
1.
Actual Disability
Weatherford argues that Cole cannot sustain his burden to prove an actual
disability. (ECF No. 36 at 9–11.) 5 The Court disagrees.
“The term ‘disability’ means * * * a physical or mental impairment that
5
Cole does not cross-move to establish that he did have an actual disability as a matter
of law, apparently preferring to save that issue for trial. (See ECF No. 34 at 10 n.2.)
8
substantially limits one or more major life activities of such individual . . . .” 42 U.S.C.
§ 12102(1)(A). A physical impairment is “[a]ny physiological disorder or condition . . .
affecting one or more body systems, such as [the] cardiovascular [system].” 29 C.F.R.
§ 1630.2(h)(1). Cole claims that he continues to have a heart condition that requires
attention through medication, diet, and exercise. (ECF No. 36 at 3, ¶ 16; ECF No. 46-3
¶ 2; ECF No. 46-5 at 2–3.) This heart condition suffices to establish an impairment.
42 U.S.C.§ 12102(4)(D) (“An impairment that is . . . in remission is a disability if it would
substantially limit a major life activity when active.”).
The next question is whether a “major life activity” is affected by Cole’s
impairment. Major life activities include “the operation of a major bodily function,
including but not limited to . . . circulatory . . . functions.” Id. § 12102(2)(B); see also
29 C.F.R. § 1630.2(i)(1)(ii) (“Major life activities include * * * respiratory, circulatory,
[and] cardiovascular . . . functions.”). Essentially by definition, Cole’s heart condition
satisfies this standard.
The final question is whether the major life activity of circulatory functioning is
substantially limited by Cole’s heart condition. Notably, “[t]he determination of whether
an impairment substantially limits a major life activity shall be made without regard to
the ameliorative effects of mitigating measures such as * * * medication * * * or * * *
learned behavioral . . . modifications.” 42 U.S.C. § 12102(4)(E)(i)(I) & (IV). Thus, the
question is the effect of Cole’s heart condition if he stopped taking his medication,
exercising, and eating healthily. Cole nowhere explicitly states, “But for these
measures, I would have another heart attack.” But that is a reasonable inf erence from
the evidence he has presented (see ECF No. 46-3 ¶ 2; ECF No. 46-5 at 2–3), and the
9
Court must draw all reasonable inferences in his favor. Adler, 144 F.3d at 670.
Moreover, “[t]he term ‘substantially limits’ shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms of the ADA.
‘Substantially limits’ is not meant to be a demanding standard.” 29 C.F.R.
§ 1630.2(j)(1)(i). Finally, “ascertaining whether the impairment substantially limits the
major life activity is a factual question for the jury.” Doebele v. Sprint/United Mgmt. Co.,
342 F.3d 1117, 1129 (10th Cir. 2003).
Given the foregoing, a reasonable jury could conclude that Cole’s heart condition
is an actual disability under the ADA. Summary judgment must be denied on this point.
2.
Record of Disability, or “Regarded As” Disabled
The parties also challenge the other two bases for liability under the ADA: a
“record of” a disability or “being regarded as having” a disability. 42 U.S.C.
§ 12102(1)(B), (C). Specifically, Weatherford argues that Cole cannot sustain his
burden to prove either basis (ECF No. 36 at 11–16); and Cole argues that he was at
least “regarded as” disabled as a matter of law (ECF No. 34 at 9–11). 6 The Court finds
that the factual issues involved are mostly the same regardless of whether one looks at
the “record of” or “regarded as” prong. The Court will therefore analyze them together.
Under the “record of” test, “a plaintiff must have a history of, or have been
misclassified as having, an impairment that has substantially limited a major life
activity.” Rakity v. Dillon Cos., Inc., 302 F.3d 1152, 1159 (10th Cir. 2002) (internal
quotation marks omitted). As for the “regarded as” test,
6
As with the question of actual disability, Cole does not cross-move on a “record of”
disability, preferring to save it for trial. See note 5, supra.
10
[a]n individual may qualify . . . in two ways: (1) a covered
entity mistakenly believes that a person has a physical
impairment that substantially limits one or more major life
activities, or (2) a covered entity mistakenly believes that an
actual, nonlimiting impairment substantially limits one or
more major life activities.
Koessel, 717 F.3d at 742.
Here, both tests come down to the information conveyed by Dr. Kalevik’s office
on the evening of March 7, 2012. It is undisputed that Brannon m ade the decision to
terminate Cole in reaction to that information, but what precisely Brannon learned from
Dr. Kalevik’s office is not clear. Cole relies on Wynn-Grove’s testimony to claim that
both Wynn-Grove and Brannon learned of Cole’s heart and back history. As discussed
above, however, Wynn-Grove’s testimony on this point is ambiguous. See Part II.C,
supra. Wynn-Grove at times appears to be reporting what Dr. Kalevik’s office said and
at other times appears to be opining about Cole’s condition generally.
Having thoroughly reviewed Wynn-Grove’s deposition transcript several times,
the Court finds that a reasonable jury could conclude that Wynn-Grove’s recollection of
the phone call was colored by information she may have actually learned after the
phone call (i.e., the specifics of Cole’s medical history). (See ECF No. 47 at 10 n.1.)
Indeed, Wynn-Grove’s testimony is so generally non-linear that a reasonable jury could
discount her entire recollection of the call from Dr. Kalevik’s office.
The next question is whether this creates a material dispute of fact. Weatherford
claims it is “undisputed” that it “refused to allow Cole to work as an Equipment Operator
IV because he was unable to obtain an updated DOT Medical Examiner’s Certificate
during the orientation.” (ECF No. 36 at 15, 21; see also ECF No. 47 at 9.) Cole,
11
however, disputes this explanation (ECF No. 46 at 4, ¶ 45), and, to som e degree, it
conflicts with the truly undisputed evidence. Specifically, it is undisputed that:
•
Cole’s physical examination took place in the late afternoon of March 7,
2012 (the third day of a five-day orientation);
•
although Dr. Kalevik’s office did not say either that Cole had passed or
failed his physical, Brannon learned something from Dr. Kalevik’s office in
the early evening of March 7 and immediately made the decision to not to
allow Cole to work as an Equipment Operator IV because he “would be
considered a high risk”;
•
Cole was informed of his termination the next morning (i.e., on the fourth
day of orientation); and
•
Cole asked to submit more information from his doctors, but both
Wynn-Grove and Brannon insisted that W eatherford’s decision was
already final.
See Parts II.C & D, supra. Given these facts, Weatherford cannot plausibly claim that it
was motivated by Cole’s supposed inability “to obtain an updated DOT Medical
Examiner’s Certificate during the orientation,” because W eatherford did not give Cole
until the end of orientation to obtain the needed certif icate. At most, Weatherford could
claim that it made its decision based on Cole’s failure to obtain the certificate on the
afternoon of March 7.
In the light most favorable to Cole, the evidence could establish that Brannon
learned of Cole’s heart and back condition from Dr. Kalevik’s office and that Brannon
decided Cole “would be considered a high risk” specifically because of those conditions.
12
Under this view of events, Weatherford acted based on Cole’s “record” of a disabling
condition (as conveyed by Dr. Kalevik’s office), or at least “regarded” Cole as disabled.
See, e.g., 29 C.F.R. § Pt. 1630, App., comment regarding 29 C.F.R. § 1630.2(l) (“an
employer who terminates an employee with angina [a symptom of heart trouble] from a
manufacturing job that requires the employee to work around machinery, believing that
the employee will pose a safety risk to himself or others if he were suddenly to lose
consciousness, has regarded the individual as disabled”).
In the light most favorable to Weatherford, however, the evidence could establish
that Brannon made her decision with respect to Cole based solely on learning that an
unspecified something had prevented him from passing his physical that afternoon. As
Weatherford points out, numerous conditions can prevent an individual from passing a
DOT physical, and not all of them (e.g., illegal drug use) would constitute a disability
under the ADA. (ECF No. 36 at 15–16.) From this perspective, although Brannon’s
decision might have been hasty and ill-informed, Weatherford could not be said to have
acted based on a record of disability, or to have regarded Cole as disabled.
The Court concludes that a reasonable jury could adopt either view of the
evidence. Thus, a genuine dispute of material fact prevents summary judgment for
either party on the question of whether Weatherford had a record of, or was regarded
as, disabled.
B.
“Qualified”
Both parties move for judgment as a matter of law regarding whether Cole was
qualified to be an Equipment Operator IV. (ECF No. 34 at 12–13; ECF No. 36 at
13
16–18.) “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). “Determining
whether a particular function is essential is a factual inquiry” regarding whether
removing a certain requirement “would fundamentally alter the position.” Davidson v.
Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003) (internal quotation marks
omitted).
No party disputes that possession of a CDL is an essential function of the
Equipment Operator IV position, and no party disputes that passing a DOT physical is a
prerequisite to obtaining or maintaining a CDL. (ECF No. 36 at 4–5, ¶¶ 23–25.)
Weatherford accordingly argues, “Because Cole did not pass the DOT medical
examination . . . during the orientation, he was not qualified for the Equipment Operator
IV position at the time of his termination by Weatherford.” (ECF No. 36 at 17.) As
noted above, however, it is undisputed that Weatherford did not give Cole until the end
of orientation to pass the exam, but decided to terminate him immediately after learning
that he had not passed his physical. The most Weatherford can argue, then, is that
Cole was not qualified because he did not pass his medical exam on his first visit to the
examining doctor.
Regardless of how Weatherford frames this argument, the Court believes that
Weatherford somewhat misses the point. Whether an individual is “qualified” turns on
the “essential functions” of the job. 42 U.S.C. § 12111(8). The essential function at
issue here is not the ability to pass a DOT physical on the first try, but the possession of
a current CDL. Weatherford explicitly gives its new hires ninety days to obtain a CDL.
14
(ECF No. 34 at 4, ¶ 12; ECF No. 34-5 at 3.) Cf. 42 U.S.C. § 12111(8) (“if an employer
has prepared a written description before advertising or interviewing applicants for the
job, this description shall be considered evidence of the essential functions of the job”).
The Court does not agree with Cole that this entire ninety-day period “logically
extends to physical exams as well” (ECF No. 34 at 13), considering that passing the
physical is just one part of obtaining a CDL (ECF No. 47 at 13 n.5). Nonetheless, that
ninety-day window is at least evidence from which a reasonable jury could conclude
that possessing a current DOT medical certificate by the third day of employment (or
even by the end of orientation) is not part of the “essential function” of possessing a
current CDL within ninety days of hire.
The Court finds, moreover, that no reasonable jury could conclude that Cole was
anything other than qualified. It is undisputed that:
•
Dr. Kalevik’s office did not report to Weatherford either that Cole had
passed or that he had failed his physical;
•
Dr. Kalevik’s office never told Weatherford that Cole could not pass a
DOT physical;
•
Weatherford would not allow Cole to submit any medical documentation
following its announcement of his termination; and
•
Cole in fact passed a DOT physical about three weeks after his
termination.
See Parts II.C & D, supra.
In addition, Weatherford submits no evidence of any obstacle apart from the
medical examination that would have prevented Cole from obtaining a CDL. And,
15
Weatherford submits no evidence, or even explanation, of why the essential function of
obtaining a CDL required anything more rapid than the process that actually played out
in Cole’s case—or, in other words, how the Equipment Operator IV position would be
“fundamentally alter[ed]” by allowing a new hire up to three weeks of a ninety-day
window to obtain the medical certificate necessary for a CDL. Davidson, 337 F.3d at
1191 (internal quotation marks omitted). Accordingly, pursuant to Federal Rule of Civil
Procedure 56(g), Cole is entitled to summary judgment that he was qualified to perform
the Equipment Operator IV position.
C.
“Suffered Discrimination as a Result of His Real or Perceived Disability”
An employer discriminates on the basis of disability by, among other things,
terminating an employee because of that disability. 29 C.F.R. § 1630.4(a)(1)(ii).
Whether Cole suffered termination as a result of an actual disability, a record of
disability, or a perceived disability turns largely on the disputed evidence already
discussed regarding what Brannon learned from Dr. Kalevik’s office on the evening of
March 7. See Part III.A.2, supra. If Brannon learned of Cole’s heart and back history, it
is a reasonable inference in light of all the other evidence that she decided to terminate
Cole because of that history. See Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 748
(10th Cir. 1999) (“to establish the third element of a prima facie case of disability
discrimination, the plaintiff must show that she was terminated because of her disability,
or that the employer terminated the plaintiff under circumstances which give rise to an
inference that the termination was based on her disability” (internal quotation marks
omitted)). On the other hand, if Brannon learned only that Cole had not passed his
16
medical exam that afternoon, then Brannon did not necessarily know of any
ADA-protected disability and could not discriminate on that basis. See Simmons v.
Potter, 2010 WL 3002038, at *11 (D. Colo. July 29, 2010) (“An employer cannot
discriminate against an employee on their disability if they did not even know of the
disability.”), aff’d sub nom. Simmons v. Donahoe, 432 F. App’x 752 (10th Cir. 2011).
Given this dispute, summary judgment is inappropriate for either party on the
question of whether Weatherford discriminated against Cole based on an actual or
perceived disability.
D.
Remainder of the Burden-Shifting Analysis
The foregoing establishes that Cole has sufficient evidence from which a
reasonable jury could find that he has carried his burden to present a prima facie case
of discrimination. See Thomas, 408 F. App’x at 152. And in light of the foregoing, the
remaining steps of the burden-shifting analysis need little discussion. Weatherford
claims that terminating an employee for failing to obtain a DOT medical certification is a
legitimate, nondiscriminatory reason for its action against Cole. (ECF No. 36 at 21–22.)
The Court agrees that, in the abstract, this could be a legitimate, nondiscriminatory
reason for termination. However, the same evidence that could carry Cole’s burden to
establish a prima facie case could also allow a jury to reasonably conclude that
Weatherford’s explanation is pretextual. In particular, the knowledge that Brannon may
have had from Dr. Kalevik’s office when deciding to terminate Cole, the timing of that
decision, and both Brannon’s and W ynn-Grove’s refusal to grant Cole more time to
obtain information from his doctors all reasonably suggest that Weatherford terminated
17
Cole because of an actual or perceived disability, not simply because he failed to obtain
a DOT medical certification on the afternoon of March 7. Which story to believe is a
matter for the jury to resolve.
E.
“Transitory and Minor”
Weatherford raises a separate defense specifically to Cole’s “regarded as”
theory of disability discrimination. (ECF No. 47 at 10–11.) An employer cannot be
liable under the “regarded as” prong of the ADA if the real or perceived impairment
motivating the employer’s decision was “transitory and minor. A transitory impairment is
an impairment with an actual or expected duration of 6 months or less.” 42 U.S.C.
§ 12102(3)(B).
“Whether the impairment at issue is or would be ‘transitory and minor’ is to be
determined objectively.” 29 C.F.R. § 1630.15(f). Thus, an employer
may not defeat “regarded as” coverage of an individual
simply by demonstrating that it subjectively believed the
impairment was transitory and minor; rather, the [employer]
must demonstrate that the impairment is (in the case of an
actual impairment) or would be (in the case of a perceived
impairment) both transitory and minor.
Id. As illustrated by the following examples provided by the Labor Department, this
standard essentially asks whether the disability the employer subjectively (and perhaps
mistakenly) believed the employee to have is the kind of disability that is objectively
transitory and minor:
[A]n employer who terminates an employee whom it believes
has bipolar disorder cannot take advantage of this exception
by asserting that it believed the employee’s impairment was
transitory and minor, since bipolar disorder is not objectively
transitory and minor. At the same time, an employer that
terminated an employee with an objectively “transitory and
18
minor” hand wound, mistakenly believing it to be
symptomatic of HIV infection, will nevertheless have
“regarded” the employee as an individual with a disability,
since the covered entity took a prohibited employment action
based on a perceived impairment (HIV infection) that is not
“transitory and minor.”
29 C.F.R. Pt. 1630, App., comment regarding 29 C.F.R. § 1630.2(l).
Weatherford argues that “even if Brannon was aware of Cole’s medical
conditions, both conditions [i.e., back and heart problems] were objectively ‘transitory’
and ‘minor,’” because Cole himself did not believe he was limited by those conditions.
(ECF No. 47 at 11.) This, however, is not an objective analysis. Rather, it is an
analysis of Cole’s subjective beliefs, which appear to be just as irrelevant as
Weatherford’s subjective beliefs. Weatherford has offered nothing to establish that the
sorts of back and heart problems Cole has suffered are objectively transitory and minor.
Consequently, the Court cannot grant summary judgment on this question.
F.
Reasonable Accommodations
Another basis for finding unlawful discrimination under the ADA is the employer’s
failure to make “reasonable accommodations to the known physical or mental
limitations of [a disabled individual] who is an applicant or employee, unless such
[employer] can demonstrate that the accommodation would impose an undue hardship
on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A). This is only a basis for
liability, however, to the extent that Cole can establish an actual disability or a record of
one—it does not apply if Weatherford only “regarded” Cole as disabled. Id. § 12201(h).
Assuming Cole can establish an actual disability or a record of one, both parties
argue that they deserve summary judgment on reasonable accommodation grounds.
19
Cole argues that he was denied a reasonable accommodation as a matter of law
because he asked for more time to submit medical records and was denied that
opportunity. (ECF No. 46 at 26.) See also 29 C.F.R. § 1630.2(o)(1)(i) (“The term
reasonable accommodation means * * * [m]odifications or adjustments to a job
application process that enable a qualified applicant with a disability to be considered
for the position . . . .”). Weatherford argues that it satisfied its duty to offer a reasonable
accommodation by offering Cole the warehouse position, which Cole refused. (ECF
No. 36 at 20.)
Both of these arguments get bogged down in the question of precisely when
Cole was terminated. In particular, the parties dispute whether Cole was terminated as
of the morning of March 8, 2012, when Wynn-Grove informed him that Weatherford
would not be employing him as on Equipment Operator IV, or whether Cole was
terminated as of some later date. Both parties are internally inconsistent regarding their
preferred answer, as well as the significance of the answer.
For example, Weatherford argues “it is undisputed that Cole did not request any
accommodation [i.e., more time to submit medical records] prior to being notified of his
termination.” (ECF No. 47 at 14.) To make this point doubly clear, Weatherford
immediately repeats itself, but in greater detail: “It is undisputed that Cole waited to
advise Weatherford of his need for additional time to submit medical documentation or
otherwise passes DOT medical examination until after he was notified of his
termination, at least 18 hours following his DOT medical examination.” (Id.) Given that
Cole’s request for more time to submit records came on the morning of March 8, after
Wynn-Grove informed him of Weatherford’s decision (see Part II.D, supra),
20
Weatherford must mean that Cole was terminated no later than being informed of that
decision by Wynn-Grove on the morning of March 8. (See also ECF No. 57 at 13.)
However, Weatherford elsewhere asserts as a statement of material fact that it
offered the warehouse position to Cole “[p]rior to Cole’s termination.” (ECF No. 36 at 7,
¶ 42.) That offer came on March 9. (See Part II.D, supra.) Weatherford also asserts
that it “separated Cole’s employment effective March 11, 2012.” (ECF No. 36 at 7,
¶ 45.)
Obviously Weatherford cannot hold both positions simultaneously. Either it
terminated Cole on March 8 (before he could request an accommodation), or on March
11 (after he requested an accommodation and after Weatherford offered the
warehouse position, allegedly as an accommodation).
Cole, for his part, also presents conflicting accounts of his termination date.
Cole, in his motion, states that his termination was effective March 10, relying on a
Weatherford interrogatory response stating as much. (ECF No. 34 at 3, ¶ 7; ECF No.
45 at 3.) But Cole, in response to W eatherford’s motion, changes course and relies on
testimony from Weatherford’s 30(b)(6) representative stating that Cole was already
terminated when he was offered the warehouse position. (ECF No. 46 at 8, ¶ 76.)
Again, it cannot be both.
Perhaps the only real dispute here is a difference between effective termination
and pro forma termination (e.g., for accounting purposes). However, none of the
parties argues this distinction. Thus, all the Court can confidently conclude is that both
parties believe the timing of Cole’s termination is important, but both parties also adopt
internally contradictory positions with respect to that timing. Suffice it to say this
21
presents a dispute of fact, precluding any resolution by summary judgment.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Plaintiff’s Motion for Partial Summary Judgment (ECF No. 34) is GRANTED IN
PART and DENIED IN PART. The Court holds as a matter of law that Cole was
qualified to perform the Equipment Operator IV position. Plaintiff’s Motion is
otherwise denied;
2.
Defendants’ Motion for Summary Judgment (ECF No. 38) is DENIED; and
3.
This matter REMAINS SET for a four-day jury trial beginning on October 13,
2015, with a Final Trial Preparation Conference at 3:00 p.m. on September 25,
2015 in Courtroom A801.
Dated this 23rd day of June, 2015.
BY THE COURT:
William J. Martínez
United States District Judge
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?