Carpentier v. Alliance for Sustainable Energy, LLC
ORDER Granting 14 Motion for Summary Judgment. The Clerk shall enter judgment dismissing this civil action with prejudice with an award of costs to the defendant, by Judge Richard P. Matsch on 2/8/2018. (ktera)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 16-cv-02513-RPM
ALLIANCE FOR SUSTAINABLE ENERGY, LLC,
ORDER GRANTING SUMMARY JUDGMENT
Alliance for Sustainable Energy, LLC (“Alliance”) is the operator of the National
Renewable Energy Laboratory (“NREL”) in Golden, Colorado. Joseph Carpentier
worked as a computer specialist with Alliance from December, 2012, until he was
discharged on December 29, 2014, for job abandonment because of his failure to
comply with a requirement that he provide a medical clearance from a cardiologist for
his return to work after he had been sent home on November 5, 2014, as a result of a
perceived medical emergency. He denied that he needed medical assistance and
asserted that he was able to work at his job that day.
On April 24, 2015, Carpentier filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging as follows:
I believe that I have been discriminated and retaliated against
within the meaning of the Americans with Disabilities Act of 1990 as
amended (“ADA”). I have qualifying disabilities within the meaning of the
ADA and/or was perceived as having a qualified disability by the
On June 18, 2015, Carpentier filed a claim for Social Security and Supplemental
Security Income (“SSI”) disability benefits due to congestive heart failure. He was
represented by Benjamin Kennedy of Bachus & Schanker, LLC. The alleged onset date
was November 5, 2014.
On October 10, 2016, Carpentier filed the complaint initiating this civil action
represented by Sara A. Green of Bachus & Schanker. The pleading asserts
discrimination on the basis of his disability, his perceived disability and as retaliation
against him in violation of the ADA.
The First Claim for Relief alleges that Carpentier had a qualifying disability under
the ADA of which Alliance was aware as of October 8, 2014. In the Second Claim for
Relief he alleged that defendant perceived him as morbidly obese and suffering from a
heart condition and subjected him to disability discrimination, including failing to provide
a temporary accommodation. The Third Claim for Relief alleges ADA retaliation.
After discovery was completed, Alliance filed a motion for summary judgment. A
hearing was held on December 21, 2017, at which Ms. Green informed that as of that
date Carpentier was on Social Security disability. Counsel for defendant advised that
this was not previously known to her.
As a result this Court ordered that plaintiff’s counsel provide the Social Security
file. That was submitted with the Plaintiff’s Supplement (Doc. 21). The first paragraph
under Introduction reads as follows:
This is a claim for damages stemming from Defendant Alliance for
Sustainable Energy’s (“Alliance”) discrimination towards Joseph
Carpentier (“Carpentier”) because of his perceived disability of morbid
obesity and his disability of heart disease, and the subsequent retaliation
Carpentier experienced, in violation of the Americans with Disabilities Act
of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990) (“ADA”). Because of
his morbid obesity and heart issues, Alliance denied him the opportunity of
working, retaliated against him, and terminated him because of his actual
and perceived disability.
A hearing on the SSI claim was held on May 9, 2017, at which Carpentier
testified. He was represented by Benjamin Kennedy. The Administrative Law Judge
(“ALJ”) issued his written decision on July 19, 2017, finding Carpentier has been
disabled since November 5, 2014, because of severe impairments of “congestive heart
failure, obesity, and hyperlipidemia.” The ALJ also found an impairment of anxiety
disorder which was not severe but was considered in assessing residual functional
capacity. The ALJ found that the claimant did not have the residual functional capacity
to perform his past relevant work. (Doc. 21-1, pgs 000411-000418).
Benefits were awarded with entitlement beginning May, 2015. (Doc. 21-1, pg.
000420). In its response Alliance asserts that the doctrine of judicial estoppel requires
dismissal of this action because Carpentier has taken inconsistent positions on the
factual issue of his ability to perform his job on November 5, 2014. The plaintiff denies
inconsistency because SSI disability does not recognize that a person with a disability
may be able to perform his job with a reasonable accommodation. In Cleveland v.
Policy Management Systems Corp., 526 U.S. 795 (1999) the Supreme Court held that
pursuit and receipt of SSDI benefits does not automatically estop a recipient from
pursuing an ADA claim or create a strong presumption against recovery under the ADA
because of the possibility that the employee may be able to show that she could
perform the essential functions of her job with reasonable accommodation. Accordingly
a grant of summary judgment was reversed with the direction that the plaintiff should be
given the opportunity to explain the inconsistent positions taken in the two forums.
At oral argument on February 7, 2017, plaintiff’s counsel asserted that the
accommodation Carpentier should have been given was more time to obtain clearance
from a cardiologist that he could return to work at Alliance.
When he was sent home on November 5, 2014, and placed on leave Carpentier
was told by Nurse McCoy that he could not return to work until he got a medical release
from his doctor.
On November 10, 2014, Penny Burton, the Human Resources Director, sent
plaintiff a letter, by courier, informing him that he was required to go to an appointment
for a fitness for duty exam by Dr. Evan Axelrod on the following day.
Carpentier went to that appointment. Dr. Axelrod is a psychologist. He
administered psychological tests. His report included “Fitness for Duty Considerations”
which stated, among other things, the following:
Mr. Carpentier should undergo a complete physical evaluation with the
physician of his choice. Mr. Carpentier’s physician should submit a letter
to NREL confirming that he does not have any conditions that would
interfere with his ability to function as an IT Specialist with the Laboratory.
Mr. Carpentier should undergo a complete cardiac evaluation with the
cardiologist of his choice. Mr. Carpentier’s cardiologist should submit a
letter to NREL confirming that he does not have any conditions that would
interfere with his ability to function as an IT Specialist with the Laboratory.
The letter should also confirm that Mr. Carpentier is complying with all
recommended treatment and that any medication he has been prescribed
will not interfere with his ability to function as an IT Specialist for the
By letter from Burton on December 3, 2014, Carpentier was told that Alliance
would require him to comply with these two recommendations by December 17, 2014.
By email on December 17, 2014, plaintiff told McCoy that he had not been able
to see a cardiologist yet. (Doc. 14-13).
Burton sent a letter to Carpentier on December 18, 2014, noting his failure to
comply with medical clearance from his physician and cardiologist and informing him
that unless he complied within the next three days his absence would be unauthorized
and cause for termination. (Doc. 14-14).
On December 23, 2014, Carpentier provided McCoy with a release to return to
work from his primary care physician on a form stating only that conclusion. (Doc. 1415). The form was dated November 14, 2014. He did not ask for more time to get a
release from a cardiologist.
The letter terminating Carpentier’s employment informed the plaintiff that
because nothing further had been heard from him he was considered being absent
without authorization and job abandonment for which his employment was terminated
effective immediately. (Doc. 14-17).
The doctrine of judicial estoppel was discussed extensively in the opinion
deciding New Hampshire v. Maine, 532 U.S. 742 (2001), followed by the Tenth Circuit
Court of Appeals in Eastman v. Union Pacific R. Co., 493 F.3d 1151 (10th Cir. 2007).
Four factors are to be considered in applying the doctrine. The party’s subsequent
position must be clearly inconsistent with its former position, the party must have been
successful in persuading a court to accept the former position, acceptance of an
inconsistent position in the later proceeding would create the perception that either the
first or second court was misled and would the party asserting the inconsistent position
gain an unfair advantage in the litigation if not estopped.
All four factors are present here. Joseph Carpentier is estopped from pursuing
this action claiming violations of the ADA.
Even if judicial estoppel is not applied, Alliance is entitled to summary judgment
of dismissal on the record presented.
The plaintiff was observed by a security officer to be having trouble breathing and
was sweating on August 8, 2014. The West Metro Fire Department was called.
Carpentier declined transport to a hospital. On October 31, 2014, a security officer
found Carpentier lying on the ground saying he was having chest pain and had a history
of heart problems. He requested an ambulance but then refused transport to a hospital.
He sent emails to his supervisor on the next work day, November 3, 2014, and again on
November 4, 2014, saying he could not work.
On November 5, 2014, a co-worker reported that she heard Carpentier say he
had a 70% blockage in his heart and if not seen by a doctor he would most likely die
within the next five days. (Doc. 14-5). In his deposition, the plaintiff denied making that
statement. An ambulance was called and again Carpentier refused medical attention.
At that time Nurse McCoy sent him home and told him he would need a medical release
to return to work.
It would appear to be unusual for Burton to send the plaintiff to a psychologist for
a fitness for duty evaluation. A medical file for plaintiff maintained by Nurse McCoy and
attached as Exhibit 25 to the defendant’s response to the plaintiff’s supplement (Doc.
23) shows multiple work absences during his two years of employment which
reasonably leads to confusion about his condition and suggests a mental or emotional
The medical records in the SSA file show extensive treatment for heart disease
including hospitalization at St. Anthony Hospital from June 4, 2015, to June 12, 2015,
for cardiac catherization with a discharge diagnosis of myocardial infarction with a
history of 13 prior stints. (Doc. 21-1, pg. 000362).
As previously noted plaintiff’s counsel has claimed both perceived disability
(morbid obesity) and actual disability (heart disease) with retaliation. Assuming either
as a basis for finding a violation of the ADA the defendant has shown a legitimate
business reason for termination of employment–the failure to comply with the
requirements of medical clearance by a cardiologist,
Upon the foregoing, it is
ORDERED that the motion for summary judgment is granted. The Clerk shall
enter judgment dismissing this civil action with prejudice with an award of costs to the
February 8, 2018
BY THE COURT:
s/Richard P. Matsch
Richard P. Matsch, Senior Judge
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