Nyanjom v. Hawker Beechcraft Corp.

Filing 170

MEMORANDUM AND ORDER granting Defendant's 147 Motion for Summary Judgment; denying Plaintiff's 153 Cross-Motion for Summary Judgment. Further, finding as moot Plaintiff's 162 Motion for Leave to File Sur-Reply, and granting Plain tiff's 163 Amended Motion for Leave to File Sur-Reply. Defendant's 167 Motion to Strike Plaintiff's Response to Defendant's Reply to Defendant's Motion for Summary Judgment is denied. Signed by District Judge Julie A. Robinson on 05/26/2015. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HAROLD M. NYANJOM,

)
)
Plaintiff,
)
)
v.
)
)
HAWKER BEECHCRAFT CORP.,
)
)
)
Defendant.
)
__________________________________________)

Case No. 12-1461-JAR

MEMORANDUM AND ORDER
Plaintiff Harold M. Nyanjom, proceeding pro se, filed this case on November 27, 2012,
in the United States District Court for the Southern District of New York, alleging claims of
discrimination and retaliation under the Americans with Disabilities Act (“ADA”) and the
Kansas Act Against Discrimination (“KAAD”), against his former employer, Hawker Beechcraft
Corp. This case is before the Court on the following motions: Defendant’s Motion for Summary
Judgment (Doc. 147), Plaintiff’s Cross-Motion for Summary Judgment (Doc. 153), Plaintiff’s
Motion for Leave to File Sur-Reply (Doc. 162), Plaintiff’s Amended Motion for Leave to File
Sur-Reply (Doc. 163), and Defendant’s Motion to Strike Plaintiff’s Response to Defendant’s
Reply to Defendant’s Motion for Summary Judgment (Doc. 167). The motions are fully briefed
and the Court is prepared to rule. As explained more fully below, after considering both of
Plaintiff’s briefs submitted on the summary judgment motions, the Court grants Defendant’s
motion for summary judgment and denies Plaintiff’s motion for summary judgment. The Court
grants Plaintiff’s Amended Motion for Leave to File Sur-Reply and denies Defendant’s motion
to strike.

I.

Procedural History
Plaintiff Harold Nyanjom originally filed this action in the United States District Court

for the Southern District of New York because Defendant Hawker Beechcraft Corp. (“HBC”)
had filed Chapter 11 Bankruptcy in that district. Finding that venue lies in the District of
Kansas, that court transferred this matter on December 11, 2012. On January 22, 2013, upon the
Suggestion of Bankruptcy filed by Defendant, this Court entered an Order staying the case
pending resolution of the bankruptcy. On May 20, 2013, Defendant filed a Bankruptcy
Stipulation, approved by the Bankruptcy Court, which modified the Plan Injunction for the
limited purpose of permitting Plaintiff to proceed with this litigation so that the value of his
claim could be liquidated. The Stipulation explicitly does not waive any defenses to Plaintiff’s
claims.1 The Court therefore lifted the stay and this case proceeded to discovery.
A dispositive motions deadline was set for November 7, 2014. The Revised Scheduling
Order provides the following directives as to summary judgment motions:
a. All potentially dispositive motions (e.g., motions for summary
judgment), must be filed by November 7, 2014. The court plans to decide
dispositive motions, to the extent they are timely filed and briefed without
any extensions, approximately 60 days before trial.
b. Compliance with Fed. R. Civ. P. 56 and D. Kan. Rule 56.1 is
mandatory, i.e., summary judgment briefs that fail to comply with these
rules may be rejected, resulting in summary denial of a motion or
consideration of a properly supported motion as uncontested. Further, the
court strongly encourages the parties to explore submission of motions on
stipulated facts and agreement resolving legal issues that are not subject to
a good faith dispute. The parties should follow the summary-judgment

1

Doc. 29, Ex. 1 ¶2. This Court is without jurisdiction to decide whether Plaintiff’s claims are exempt from
the bankruptcy discharge. Pursuant to the Stipulation, the Plan Injunction was lifted “solely for the limited purpose
of permitting the Claimant to . . . liquidate the value of his claim.” Id. ¶ 1.

2

guidelines available on the court’s website: [website hyperlink provided].2
Defendant sought and received two unopposed extensions of the dispositive motions
deadline until November 18, 2014. On that date, Defendant filed its summary judgment motion,
as well as a Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment, as
required by this Court’s local rule, D. Kan. Rule 56(f). That notice explained to Plaintiff the
summary judgment procedure, and attached the federal and local rules governing summary
judgment filings. Defendant’s motion for summary judgment contains 104 numbered statements
of material fact, to which it has provided specific citations to the record in support.
Plaintiff sought and was granted one unopposed motion for an extension of time until
December 16, 2014, to respond to Defendant’s summary judgment motion. He also sought and
was granted leave to exceed the thirty page limit for the argument section of his brief. On
December 16, 2014, Plaintiff filed his response, which he also styled as a Cross-Motion for
Summary Judgment. In this filing, Plaintiff submits sixty-three numbered statements of material
fact. Although they generally respond to various factual averments made in Defendant’s motion,
they do not correspond to the numbered paragraphs presented by Defendant. Some of these
statements contain a citation to the record; most contain argument.
Defendant was allowed several extensions of time to reply. Its January 13, 2015 reply is
voluminous: 120 pages in length. This is largely due to the fact that Defendant endeavored to
correspond each of Plaintiff’s numbered factual averments with Defendant’s original numbered
factual averments (to which Plaintiff failed to refer), and to provide either a response to each, or
a statement as to whether it should be deemed uncontested. The length of the brief is entirely

2

Doc. 133 ¶ 2.

3

attributable to Defendant’s attempt to aid the Court in determining the uncontroverted facts in
this matter, given Plaintiff’s failure to follow the local rules and guidelines that had been
previously provided to him.
Upon receipt of Defendant’s reply memorandum, Plaintiff filed motions for leave to file a
sur-reply, which Defendant opposed. He did not comply with the Court’s Local Rule 15.1 that
applies when a party seeks leave to file a document that is not permitted under the rules as a
matter of course—the proposed document must be attached to the motion for leave in order to
allow the Court to determine whether leave should be granted. Instead, Plaintiff proceeded to
file a ninety-three page sur-reply memorandum on February 19, 2015, without prior leave. The
brief attempts to respond to each of the harmonized factual averments provided by Defendant in
its reply memorandum, and to address the arguments raised in the reply. Defendant promptly
moved to strike this document from the record.
II.

Standards
Summary judgment is appropriate if the moving party demonstrates that there is no

genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.3 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.4 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”5 A fact is “material” if, under

3

Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).

4

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

5

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

4

the applicable substantive law, it is “essential to the proper disposition of the claim.”6 An issue
of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the
non-moving party.’”7
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.8 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.9
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”10 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.11 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”12 When the moving party also bears the

6

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
7

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
8

Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986)).
9

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
10

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
11

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

12
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.

5

burden of proof at trial,
a more stringent summary judgment standard applies. Thus, if the
moving party bears the burden of proof, to obtain summary
judgment, it cannot force the nonmoving party to come forward
with “specific facts showing there [is] a genuine issue for trial”
merely by pointing to parts of the record that it believes illustrate
the absence of a genuine issue of material fact. Instead, the moving
party must establish, as a matter of law, all essential elements of
the issue before the nonmoving party can be obligated to bring
forward any specific facts alleged to rebut the movant’s case.13
The facts “must be identified by reference to an affidavit, a deposition transcript, or a
specific exhibit incorporated therein.”14 Rule 56(c)(4) provides that opposing affidavits must be
made on personal knowledge and shall set forth such facts as would be admissible in evidence.15
The non-moving party cannot avoid summary judgment by repeating conclusory opinions,
allegations unsupported by specific facts, or speculation.16
“Where, as here, the parties file cross motions for summary judgment, [the Court is]
entitled to assume that no evidence needs to be considered other than that filed by the parties, but
summary judgment is nevertheless inappropriate if disputes remain as to material facts.”17 Cross
motions should be considered separately.18 Just because the Court denies one does not require

13

Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008) (citations omitted).

14

Adams, 233 F.3d at 1246.

15

Fed. R. Civ. P. 56(c)(4).

16

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
17

James Barlow Family Ltd. P’ship v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997)
(citation omitted).
18
Ultra Clean Holdings, Inc. v. TFG-Cal., L.P., 534 F. App’x 776, 780 (10th Cir. 2013) (quoting Buell
Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)).

6

that it grant the other.19
Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”20 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”21
Because Plaintiff proceeds pro se, some additional considerations frame the Court’s
analysis. The court must construe his pleadings liberally and apply a less stringent standard than
that which is applicable to attorneys.22 However, the court may not provide additional factual
allegations “to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.”23 Additionally, a pro se litigant is not excused from complying with the rules of the
court and is subject to the consequences of noncompliance.24

III.

Technical Defects with Plaintiff’s Filings
Defendant first argues that Plaintiff’s cross-motion for summary judgment is untimely

and should be denied on this basis alone. The Court agrees that Plaintiff’s motion is untimely;

19

Id.

20

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

21

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

22

Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).

23

Id.

24

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994) (insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)).

7

the dispositive motions deadline was November 18, 2014, yet Plaintiff filed his motion on
December 16, as part of his response to Defendant’s motion. Plaintiff suggests that the Court
granted his motion to extend the deadline, but his motion for extension of time did not request an
extension of the dispositive motions deadline. The Order therefore only allowed Plaintiff
additional time to respond to Defendant’s motion. Nonetheless, as explained fully below, the
Court has reviewed Defendant’s filing and finds that even if it was timely, it must be denied on
the merits.
Defendant also opposes Plaintiff’s attempt to file a sur-reply to the motion. Again,
Defendant is correct that Plaintiff failed to follow the proper procedures in seeking leave to file
the sur-reply, and that the sur-reply was improperly filed without prior leave of Court. The
Court is also mindful of the herculean effort expended by Defendant in attempting to synthesize
the factual averments in its reply brief. However, given Plaintiff’s status as a pro se litigant, the
Court must construe Plaintiff’s filings more liberally than those of a licensed attorney. To that
end, the Court will consider Plaintiff’s brief, despite his failure to follow the rules of procedure.
Nonetheless, as described more fully below, the Court finds that Defendant has shown that no
reasonable jury could find in favor of Plaintiff on his claims of discrimination or retaliation
under the ADA and KAAD.
IV.

Uncontroverted Facts
Plaintiff failed to follow the federal and local rules in his summary judgment briefing,

despite being provided with notice of the Court’s rules and guidelines both in the Scheduling
Order, and by Defendant under D. Kan. Rule 56.1(f). Plaintiff’s failure to follow the local rule
on presenting his factual matter on summary judgment is particularly problematic in this case

8

given the voluminous factual record, and the sheer amount of factual recitations in the briefs.
Despite Defendant’s best efforts, the Court has expended significant effort in order to reconcile
the 167 statements of fact presented by these parties. While the Court construes Plaintiff’s briefs
liberally, the Court must deem admitted those facts to which Plaintiff wholly failed to respond or
otherwise controvert with record evidence that could be presented in an admissible form at trial.
Moreover, to the extent Plaintiff purports to controvert facts without specifically citing to
appropriate factual material in the record, those facts will be deemed admitted as well. Finally,
the Court disregards legal argument presented by either party in their statements of fact, and only
considers those facts that are material to issues raised in the motions.
The following material facts are uncontroverted or stipulated to for purposes of summary
judgment. Plaintiff Harold Nyanjom was hired by Defendant’s predecessor company on January
22, 1999, and was classified as a Sheet Metal Assembler in Department 651, Job Code 021,
Labor Grade 6. The job description for a sheet metal assembler at HBC provides:
This occupation requires the assembling and/or installation of component
parts, and large and small assemblies to conform to blueprint
specifications. May involve work on parts or assemblies on several
models of aircraft, all within a given work period. Assumes full
responsibility for all job assignments handled.25
The job description provides a list of operations that are typical of those required to be
performed, including drilling, creating various aircraft assemblies, and using a variety of tools
such as a drill, rivet gun, rivet hammer, countersink, and measuring device. Throughout his
employment, plaintiff was an employee at will.
Plaintiff has a congenital vision deficiency which was known to HBC when it hired

25

Doc. 147-15, Ex. 14 at 2.

9

Plaintiff in 1999. He has been virtually blind in his left eye since birth, and is only able to
perceive light in that eye. The vision in his right eye is reduced, but is correctable with eye
glasses to 20/20. Plaintiff’s vision deficiency does not affect his ability to hear, speak, breathe,
learn, stand, sit, bend, communicate, lift, reach, sleep, eat, think, or concentrate. His visual
impairment does impact his ability to read; he either reads large-print materials or holds printed
material close to his face.
Collective Bargaining Agreement
Since 1939, the International Association of Machinists and Aerospace Workers
(“IAM”) has represented a sizeable portion of the hourly-compensated workers employed by
Defendant. At all times material, Defendant was a party to a collective bargaining agreement
with the IAM that became effective on August 4, 2008 and expired on August 7, 2011. The
terms of that agreement define the company’s obligations with regard to employees within the
bargaining unit, including pay, benefits, work hours, rest periods, overtime pay, recalls,
seniority, promotions, grievances, discipline, and job transfers. At all times throughout his
employment, Plaintiff was assigned to jobs that were governed by the collective bargaining
agreement. The collective bargaining agreement provided that when there is a reduction in force
or layoff, employees in the affected department with less seniority are the ones laid off or
reduced, while the more senior employees are retained.

Under the agreement:
When employees are laid off from their present department and exercise
their seniority to return to their intermediate or home department in
accordance with this Section, they will administratively be placed on the
shift that they held at the time they left their intermediate or home
10

department. The returning employees will then utilize their seniority for
purposes of shift preference.26
An employee who is laid off from his current department may exercise their seniority in prior
departments and “bump” out less senior employees there. Plaintiff’s seniority date is January 22,
1999.
The collective bargaining agreement also includes provisions on Occupational Safety and
Health. It requires employees to wear goggles when assigned to “operations involving eye
hazards.” “If in doubt, wear goggles. This safety equipment is furnished free of charge by the
Company and can be obtained from the tool crib.”27 Defendant provides safety goggles that meet
the American National Standards Institute standard for high impact-resistant eye protection. All
employees and visitors on the shop floor are required to wear this safety equipment.
Plaintiff’s Job Classification History
Plaintiff worked as a Sheet Metal Assembler from his hire date on January 22, 1999 until
March 25, 2002. During this time, he progressed from a Labor Grade 8 to 5. He was then
reclassified as a CNC Rivet Machine Operator and worked in that position until June 2, 2003,
when he was reclassified back to a Sheet Metal Assembler until January 1, 2007, in Department
655. During this time period, Plaintiff primarily wrote tags identifying nonconforming parts. On
January 1, 2007, Plaintiff was reclassified as an Assembly Inspector and worked as either an
Assembly Inspector or Conformity Inspector until November 2009. This was a lateral transfer
for which Plaintiff had applied. As an assembly inspector, Plaintiff continued his work tag
writing, as that task was absorbed by the inspection department.
26

Doc. 147-5, Ex. 4 ¶ 5.06.03(B).

27

Id. at 64 ¶ 19.08.09.

11

The aviation industry suffered a substantial downturn due to economic factors beginning
in 2008. As a result, there were a series of reductions in force (“RIFs”), which eventually caused
thousands of HBC employees to lose their jobs. Defendant closed its facilities in Salina, Kansas
and Little Rock, Arkansas. Plaintiff was generally aware of the downturn in the industry, and
received letters from management informing employees that there were likely to be layoffs.
On November 10, 2008, there was a layoff that Plaintiff survived because he was
“bumped” instead of laid off. He transferred back to an Assembly Inspector position in
Department 378. Plaintiff worked as an Assembly Inspector until November 30, 2009, when he
was again bumped instead of laid off; he had rights to bump back to Department 655 as a Sheet
Metal Assembler. He performed all of the traditional duties of a Sheet Metal Assembler until
May 3, 2010. He worked during this time in the Government Business building, one of the
newer buildings at the facility. Plaintiff testified in his deposition that during this time he
requested accommodations to protect his eyes, meeting with his team leader Pete Senecal, his
supervisor, William Cotman, and IAM representative Steve Reist. He requested extra lighting,
magnification devices, large print, magnification on the computers he used, and an assistant. In
terms of lighting, Plaintiff specifically requested more freestanding lamps and better overhead
lighting.
Defendant provided Plaintiff with various protective eyewear, including oversized
goggles and a visor, and although he testified that he was unaware of any other protective
eyewear that would work better than the polycarbonate lenses with side shields that he had been
wearing, he stated that he believed those lenses were inadequate to protect his eyes.
Plaintiff applied for Social Security disability benefits in February 2010, on the basis of

12

his vision impairment. The Social Security Administration (“SSA”) denied Plaintiff’s
application, noting that he was working every day. Plaintiff believed that he could work parttime and collect Social Security benefits, although he never applied for a part-time position and
admits he misunderstood the rules about employment in relation to obtaining Social Security
benefits.
Communications with Plaintiff’s Optometrist
On March 17, 2010, Plaintiff wrote his optometrist, Dr. Amy Goertz, stating that he
worked in sheet metal assembly, and that
my employer has requested that you please provide a list of restrictions so
that they may evaluate my case as a disabled employee: 1. Current
diagnosis, treatment and outcomes. 2. Current registration as a
permanently disabled citizen. If you don’t mind, I would like to schedule
an appointment with you . . . to discuss the issue.28
Previously, Dr. W. Chris Arensberg, Dr. Goertz’s partner, wrote a letter “To Whom it May
Concern” on Plaintiff’s behalf, stating that he had examined Plaintiff on March 5, and that
Plaintiff’s best corrected vision is 20/20 in the right eye. He stated further that “[a] vitreous
detachment is causing his chief complaint of floaters. There is no treatment for this.”29
On April 19, 2010, Plaintiff again wrote to Dr. Goertz. He described his job as a “sheet
metal mechanic,” and continued:
1.

2.

Dr. Arensberg confirmed my diagnosis of Vitreous Detachment (of
which is progressively worsening), with the grim outlook of
Retinal Detachment and no treatment in the Right eye and
blindness in the Left eye.
I am currently registered with [sic] as a permanently disabled
person.

28

Doc. 147-17, Ex. 16.

29

Doc. 147-18, Ex. 17.

13

Due to the fact that I am deeply concerned that my deteriorating visual
impairment poses a serious and increasing risk to my safety at work, in
work performance and to Hawkerbeechcraft Co., as you review the noted
information, I would like to kindly request you to draft documentation
indicating your determination that I am unable to work and/ or function
within the workforce. I’m at a point where I need to make a serious
decision since my options are severely limited and an increasing potential
of ending up completely blind strongly exists. However, I am even
considering being open to any surgical options for treatment to save my
sight. In order to evaluate my case as a disabled employee, my employer
has requested that you please review all the above information and
provide documentation indicating my inability to work and/or even
possibly a listing of restrictions to support this fact.30
On May 3, 2010, Plaintiff was transferred to Department 160 as a Conformity Inspector,
working in Quality Assurance; he had applied for the position.
On May 7, 2010, Dr. Goertz wrote a letter “To Whom it May Concern,” stating the
following about Plaintiff’s work limitations:
Working as a sheet metal mechanic is a safety concern for Harold.
Especially when he is drilling sheet metal, there is a risk for an injury to
his eyes. If Harold were to injure his good eye, he could be left without
vision. Therefore, I do not recommend that he perform tasks that put him
at risk to damage his eyes.31
On May 14, 2010, Plaintiff visited Dr. Goertz’s office and told a staff member that the
list of limitations in the May 7 letter was too generalized. He asked Dr. Goertz to “specify that
he cannot do sheet metal period & then include a list of things he can’t do.” Dr. Goertz’s notes
indicate that the staff member “marked the ‘jobs’ he can’t do on his job description. I called pt
today, but no one answers his phone.”32 Dr. Goertz’s notes further indicate that she spoke with

30

Doc. 147-19, Ex. 18.

31

Doc. 147-13, Ex. 12.

32

Doc. 147-20, Ex. 19.

14

Plaintiff on May 19 and he told her that he would be placed in an administrative position or some
other position if he received the requested letter from her and urged her to contact his employer.
On May 21, Dr. Goertz spoke with Plaintiff’s supervisor Renee Cooper, who stated she had not
received previous letters from Dr. Goertz and that she did not know why Plaintiff needed them
because she did not oversee the sheet metal department.
On June 2, 2010, Plaintiff wrote to Dr. Goertz that he wanted to exit the workforce and
pursue disability benefits, which they had previously discussed. Plaintiff asked her to contact the
medical administrator at HBC.
On July 16, 2010, Dr. Goertz’s notes indicate that Plaintiff contacted her and again asked
for a letter giving the specifics of what he can’t do, “or stating that he ‘can’t do sheet metal.’”
Dr. Goertz told Plaintiff, “I can’t write a letter stating he can’t do something that he is capable
of. He has worked in sheet metal in the past & has a good performance record. I told him I had
written several letters stating his visual status. . . . They need to figure out what he can & can’t
do.”33
Plaintiff again requested a letter from Dr. Goertz on August 27, 2010, asking her to
review a list of specific tasks required for sheet metal assembly, and recommend “that these
specific tasks cannot be performed for safety reasons.”34 Dr. Goertz contacted Plaintiff and
declined to write the requested letter. She recommended that he meet with an occupational
therapist.
There was a RIF in August 2010. Because Plaintiff lacked seniority as a Conformity

33

Doc. 147-22, Ex. 21.

34

Doc. 147-23, Ex. 22.

15

Inspector, he was selected for layoff. He had “bump” rights as a Sheet Metal Assembler, which
he could and did exercise on August 30, 2010. At this time, Plaintiff requested various
accommodations.
Requested Accommodations
Plaintiff requested revising the overhead lighting in the Government Business plant,
which was denied. Plaintiff had access to freestanding lamps that were available to plant
employees, and he moved them over to his work area. Plaintiff requested that each of the
blueprints he would use be converted to large print and for Defendant to give him step-by-step
assembly procedures in large print for each part built, with pictures of the part showing each step
of the process. The company began the process of putting such books together with Plaintiff’s
help, but it was not completed.
Plaintiff requested that HBC provide him with a trainer to watch over and train him as he
did sheet metal assembly, to be sure he did not damage the aircraft. Defendant provided an
experienced sheet metal assembler to work with Plaintiff on the wing assembly of the military
aircraft he was working on.
Plaintiff requested an occupational therapist from Envision evaluate his work area.
Because there were Department of Defense security requirements that applied to the Government
Business building, an outside occupational therapist was not allowed to observe Plaintiff’s
workspace. Plaintiff’s supervisor, William Cotman, told him that they would have the
company’s ergonomist do an evaluation instead.
Medical Leave
HBC provided a short term disability plan to its employees with no contribution toward

16

the premium required to be paid by the employee. HB also provided its employees with a long
term disability plan, at the employees’ expense. Plaintiff applied for short term disability
benefits some time prior to September 17, 2010, and was approved, effective September 22,
2010. Although HBC was unaware at the time, Dr. Goertz completed a Medical Request Form
as part of Plaintiff’s short term disability claim. She stated that as of that date, September 24,
2010, Plaintiff could return to work if accommodations were made for him. She listed one
restriction for Plaintiff at home and at work: polycarbonate glasses. The eyeglasses routinely
worn by Plaintiff had polycarbonate lenses.
HBC notified Plaintiff in writing that because of his “incapacity, we have placed you on a
medical Leave of Absence effective 09/15/2010 consistent with company policy. Your leave
will expire on 09/15/11 at which time you must return to work or on the date your treating
physician releases you, whichever occurs first.”35 On September 14, 2010, Plaintiff applied for
Supplemental Security Income (“SSI”) disability benefits. During the application process, he
represented that he had become unable to work because of a disability on September 14, 2010.
Plaintiff believed that he qualified for these benefits because Defendant had placed him on
involuntary medical leave. Plaintiff’s application was denied because his spouse possessed more
than the allowed amount of assets.
On October 2, 2010, Plaintiff applied for unemployment benefits through the Kansas
Department of Labor. He contended that he was eligible for benefits because of his involuntary
medical leave.
On February 6, 2011, Plaintiff was notified by the SSA that he was entitled to monthly

35

Doc. 148-2, Ex. 24.

17

disability benefits beginning in March 2011.
Plaintiff dual-filed an administrative complaint with the Equal Employment Opportunity
Commission (“EEOC”) and the Kansas Human Rights Commission (“KHRC”) on February 15,
2011. He alleged that he was discriminated against, denied reasonable accommodation for his
disability, subjected to involuntary transfers, subjected to an involuntary medical leave of
absence, denied long term disability benefits, not rehired, and that he was retaliated against “for
opposing acts and practices forbidden by the Kansas Act Against Discrimination.”36 Plaintiff
further alleged that other employees with similar or less experience were transferred to
management positions or positions that would have accommodated his disability.
On May 30, 2011, Plaintiff applied for disability retirement benefits with HBC Pension
Plans. To be entitled to such benefits, Plaintiff was required to affirm that he is
disabled as a result of sickness, accident, ill health or other physical or
mental causes which prevents me from performing and discharging the
duties of suitable employment; [he has] incurred a disability during active
employment while an employee at the [HBC], and this situation is
considered permanent and continuous for the remainder of my life.37

Plaintiff stated in his deposition that he first became aware of discrimination on the basis
of his disability in November 2009, after he requested accommodation. At that time, he did not
report discrimination to Human Resources and he did not file a formal grievance with the union.
He claims that he was retaliated against by his supervisor when he was harassed about his
presence after his shift while waiting for transportation, and when he was subjected to
intimidating meetings. Later in his deposition, he contended that he became aware of
36

Doc. 148, Ex. 36.

37

Doc. 148, Ex. 39.

18

discrimination in August 2010 when he asked for accommodations. Defendant’s equal
opportunity policy directs employees who believe that they have been the victim of
discrimination or harassment to promptly make a report to Human Resources, or lodge a
complaint with the Ethics Office. He did not file such a complaint.
Disability Retirement
Plaintiff was employed by Defendant until June 1, 2011, when he applied for and
received disability retirement benefits from HBC. He was notified that he was entitled to receive
disability retirement benefits, retroactive to June 1, 2011, and continuing through his normal
retirement date of August 1, 2033. To continue to receive these benefits, Plaintiff must remain
totally and permanently disabled. He is required to submit evidence, up to twice per year, that he
continues to be eligible to receive Social Security Disability benefits. Plaintiff has continued to
receive the HBC disability retirement benefits to the present date. On June 21, 2011, Cotman
completed a Termination Transaction Request Form for Plaintiff, stating a separation date of
June 1, 2011, and stating the reason as “Retired.”
Plaintiff filed a Supplement to Existing Charge with the KHRC on August 11, 2011. He
stated in this supplement that he was discriminated and/or retaliated against in connection with
his application for a Technical Specialist position at HBC. Specifically, he alleges that a
February 16, 2011 interview for this position had been canceled after the selection coordinator
learned of Plaintiff’s disability and medical leave status. None of the applicants for the
Technical Specialist position were hired, however, because HBC learned that a previously laid
off worker had performed the job and was working for HBC as a contractor. HBC hired this
worker with previous experience and cancelled all scheduled interviews for the position.

19

Plaintiff dual filed another administrative complaint with the KHRC and EEOC on
September 20, 2011. The complaint alleges retaliation only. Plaintiff did not mark the box for
disability discrimination. Plaintiff alleged retaliation based on his involuntary retirement and
complained that he should have been provided with disability benefits prior to March 31, 2011.
In response to this complaint, Defendant offered to have its third-party administrator rescind the
retirement disability benefit if Plaintiff did not wish to proceed with those benefits, but Plaintiff
declined the offer.
HBC filed its bankruptcy petition on May 3, 2012.
On August 27, 2012, the KHRC completed its investigation into Plaintiff’s complaint and
determined that there was probable cause to credit his allegations. The KHRC issued an eightpage case summary report of its findings. The KHRC found “evidence Complainant was
discriminated against due to his disability, was denied reasonable accommodations, was not
offered alternative jobs that were available within the sheet metal department, where he was last
bumped.”38 On October 19, 2012, the EEOC issued its determination “that there is reasonable
cause to believe that a violation of the law has occurred,” indicating it gave great weight to the
KHRC decision 39 The agency indicated it would begin conciliation efforts.
V.

Discussion
Defendant moves for summary judgment on the following grounds: (1) Plaintiff’s claims

must be dismissed for failure to timely exhaust as to conduct that occurred prior to April 21,
2010; (2) Plaintiff’s claims of discrimination on the basis of his disability fail because there is no

38

Doc. 153-6, Ex. 5 at 9.

39

Doc. 153-3, Ex. 2.

20

evidence that he was qualified, with or without reasonable accommodation, to perform the
essential functions of his job, or that he was discharged because of his disability; and (3)
Plaintiff’s retaliation claims fail because he was not subjected to an adverse employment action,
and because he cannot show a causal connection between his protected activity and being placed
on disability retirement.
Plaintiff argues not just that there are genuine issues of material fact as to his claims of
discrimination and retaliation, but goes further and argues that he is entitled to summary
judgment on his claims. Plaintiff contends that the EEOC and KHRC determinations are
sufficient to prove the elements of his claims against Defendant, and to exempt his claims from
corporate bankruptcy discharge because they establish that the discrimination and retaliation was
willful.
Plaintiff’s claims rely on circumstantial evidence.40 The Court analyzes ADA
discrimination and retaliation claims that are based on circumstantial evidence under the
McDonnell-Douglas Corp. v. Green41 burden shifting framework.42 This analysis proceeds in
three steps: “(1) the plaintiff must establish a prima facie case of discrimination or retaliation; (2)
the defendant employer must offer a legitimate non-discriminatory reason for the adverse
employment action; and (3) the plaintiff must show there is at least a genuine issue of material
fact as to whether the employer's proffered legitimate reason is genuine or pretextual.”43 Under

40

See Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (discussing the difference between direct
and circumstantial evidence).
41

411 U.S. 792 (1973).

42

See, e.g., Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014).

43

Id. (citation omitted).

21

McDonnell Douglas, plaintiff initially bears the burden of production to establish a prima facie
case of discrimination or retaliation.44 The burden of establishing the prima facie case is “not
onerous.”45 If Plaintiff establishes a prima facie case, the burden shifts to defendant to articulate
a facially nondiscriminatory reason for its actions.46 If defendant articulates a legitimate
nondiscriminatory reason, the burden shifts back to plaintiff to present evidence from which a
jury might conclude that defendant’s proffered reason is pretextual, that is, “unworthy of
belief.”47
The Court will first address Plaintiff’s administrative claims—their timeliness and their
evidentiary value. The Court next addresses the merits of Plaintiff’s claims of discrimination
and retaliation.48
A.

Administrative Decisions

1.

Timely Exhaustion

The ADA requires claims to be exhausted administratively.49 Although administrative
exhaustion is jurisdictional, “filing a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of

44

McDonnell Douglas, 411 U.S. at 802.

45

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 238, 253 (1981).

46

Id.; Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007).

47

Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quoting Randle v. City of Aurora, 69
F.3d 441, 451 (10th Cir. 1995)).
48

The standards under the ADA and KAAD claims are essentially the same. Aramburu v. Boeing Co., 112
F.3d 1398, 1403 n.3 (10th Cir. 1997). Therefore, the Court’s analyses as to the merits of Plaintiff’s claims under the
ADA apply equally to his claims of discrimination and retaliation under the KAAD.
49

Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1309 (10th Cir. 2005).

22

limitations, is subject to waiver, estoppel, and equitable tolling.”50 A plaintiff’s allegation is
timely if he files his EEOC charge within 300 days of the alleged unlawful employment
practice.51
Defendant moves to dismiss Plaintiff’s disability discrimination claims on the basis that
certain alleged conduct was not timely exhausted because it occurred more than 300 days before
he filed his first administrative charge on February 15, 2011. He filed subsequent charges in
August and September 2011. Defendant thus raises the affirmative defense of failure to timely
exhaust administrative remedies.52 Defendant has the burden of proof on the affirmative defense,
and in moving for summary judgment, “[t]he defendant . . . must demonstrate that no disputed
material fact exists regarding the affirmative defense asserted.”53 Once the defendant makes this
initial showing, “the plaintiff must then demonstrate with specificity the existence of a disputed
material fact.”54 If the plaintiff cannot meet this burden, “the affirmative defense bars [his]
claim, and the defendant is then entitled to summary judgment as a matter of law.”55
The Court agrees that Plaintiff has failed to exhaust his claims with regard to
discrimination that predated April 21, 2010, 300 days before he filed his first administrative
complaint. And regardless of whether Plaintiff’s retaliation claims are measured from the first or
last administrative filing, Plaintiff’s retaliation claims stemming from his request for

50

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (emphasis added).

51

Semsroth v. City of Wichita, 304 F. App’x 707, 714 (10th Cir. 2008).

52

Jones v. Runyon, 91 F.3d 1398, 1399 n.1 (10th Cir. 1996).

53

Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997).

54

Id.

55

Id.

23

accommodation in November 2009 are time barred. All other conduct alleged by Plaintiff
appears to have accrued after April 21, 2010 and was thus timely exhausted. Although Plaintiff
testified in his deposition that he first suspected that he was being discriminated against on the
basis of his visual impairment in November 2009, he also testified that he requested
accommodations in August 2010, well within the 300-day period of exhaustion.
Plaintiff argues that had his complaint been untimely, the administrative agencies would
have notified him as such. But this is not the test, and as described below, the Court views
Plaintiff’s claims de novo and would not be bound by any KHRC ruling on timeliness.
Plaintiff suggests that equitable tolling should apply. The parties both recognize that
equitable tolling may excuse an untimely filing “when a plaintiff is actively misled or prevented
from asserting his rights.”56 Construing the evidence in the light most favorable to Plaintiff,
there is no indication in the record that he was actively misled or prevented from asserting his
rights under the ADA. And Plaintiff’s argument that he could not exhaust due to his medical
leave of absence is also unavailing. His medical leave of absence was in September 2010, more
than nine months after he testified he first suspected discrimination in November 2009. And
Plaintiff provides no explanation as to why his medical leave of absence would have prevented
him from filing an administrative complaint. Accordingly, the Court dismisses any claims that
accrued prior to April 21, 2010.
2.

Evidentiary Value of Administrative Decisions

The parties also dispute the evidentiary value of the determinations made by the KHRC
and EEOC that there is probable cause or reasonable cause to believe that a violation of the law

56

Harms v. I.R.S., 321 F.3d 1001, 1006 (10th Cir. 2003).

24

occurred.57 Plaintiff urges that the KHRC findings require this Court to enter summary judgment
in his favor, while Defendant urges that the Court must review the record de novo, and that the
administrative decisions constitute inadmissible hearsay that should be excluded from the
summary judgment record. First, Plaintiff’s suggestion that the KHRC or EEOC agency findings
suffice to prove his claims in this case is incorrect. The United States Supreme Court has held
that unreviewed state administrative proceedings have no preclusive effect on a Title VII
discrimination lawsuit.58 Moreover, the KHRC findings are not admissible absent proof of an
adequately developed administrative record that establishes the trustworthiness and reliability of
the decision.59 No such proof has been submitted on summary judgment. And finally, the Tenth
Circuit has counseled that when the evidence presented on summary judgment “fail[s] to
establish a genuine issue of material fact, a favorable EEOC letter of determination does not
create one.”60 Thus, the Court will proceed to consider the independent evidence presented by
the parties to determine whether a genuine issue of material fact exists. If it does not, the KHRC
and EEOC determinations will not create one.
B.

Disability Discrimination Claims

The ADA prohibits covered employers from discriminating against “a qualified

57

Doc. 153-5, Ex. 5; Doc. 153-3, Ex. 2.

58

Univ. of Tenn. v. Elliott, 478 U.S. 788, 795–96 (1986).

59

See Hamwi v. Den-Tex Cent., Inc., No. 08-4151-SAC, 2010 WL 3878865, at *2–3 (D. Kan. Sept. 28,
2010) (citing Denny v. Hutchison Sales Corp., 649 F.2d 816, 821 (10th Cir.1981)).
60

Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1331 (10th
Cir.1999), abrogated in part on other grounds by Eisenhower v. Weber Cnty., 744 F.3d 1220, 1227 (10th Cir. 2014);
accord White v. Oklahoma, 552 F. App’x 840, 848–49 (10th Cir. 2014).

25

individual on the basis of disability.”61 Plaintiff alleges that HBC discriminated against him on
the basis of his disability when he was denied reasonable accommodations, was not offered
alternative jobs that were available, and when it caused him to involuntarily retire. In order to
establish a prima facie case of discrimination under the ADA, Plaintiff must show that: (1) he is
disabled, as defined by the ADA; (2) he is qualified to perform the essential functions of the job
with or without reasonable accommodation; and (3) he suffered discrimination as a result of his
disability.62 Defendant does not contest that Plaintiff was disabled. But it argues that there is no
genuine issue of material fact that Plaintiff was not qualified to perform the essential function of
his job with or without reasonable accommodation. Defendant further argues that there is no
evidence he was discharged because of his disability, or that he was not hired for an alternate
position because of his disability.

1.

Failure to Accommodate

Plaintiff must establish that he is qualified to perform the essential function of his job,
with or without accommodation, and this issue is a mixed question of law and fact.63 It is a twopart inquiry: (1) the Court must determine whether Plaintiff can perform the essential functions
of the job; and (2) if he is unable to perform the essential functions of his job, whether any
reasonable accommodation by the employer would enable him to perform those functions.64

61

42 U.S.C. § 12112(a).

62

Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 742 (10th Cir. 2013).

63

Id.

64

Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 887–88 (10th Cir. 2015).

26

“A job function is ‘essential’ if it is fundamental to a position and all employees in the
position must perform it.’”65 Under the statute, “consideration shall be given to the employer’s
judgment as to what functions of a job are essential, and 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.”66 The EEOC has developed
regulations that define “essential functions,” and the Tenth Circuit has “explicitly incorporate[d]
the EEOC’s regulations” into its disability discrimination jurisprudence.67 The EEOC’s
definition provides:
(1) In general. The term essential functions means the fundamental job
duties of the employment position the individual with a disability holds or
desires. The term “essential functions” does not include the marginal
functions of the position.
....
(3) Evidence of whether a particular function is essential includes, but is
not limited to:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing
applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.68
Although the employer’s judgment is not conclusive evidence of the essential functions of a

65

Koessel, 717 F.3d at 743 (citing Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1262 (10th Cir. 2009)).

66

42 U.S.C. § 12111(8).

67

Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 884 (10th Cir. 2015).

68

29 C.F.R. § 1630.2(n).

27

position, it weighs heavily in the determination.69
The job descriptions for the various grade levels of sheet metal assemblers provides
strong evidence that cutting, drilling, and conforming sheet metal is an essential part of the job.
The job requires creating various aircraft assemblies, and using a variety of tools such as a drill,
rivet gun, rivet hammer, countersink, and measuring device. Plaintiff does not contest that these
are essential functions of the sheet metal assembler position. Plaintiff determined in August
2010 that he could not perform the essential functions of his job. Indeed, in 2010, he repeatedly
requested documentation from Dr. Goertz that would establish his inability to perform the
essential functions of a sheet metal assembler.
Plaintiff applied for Social Security Disability benefits two times in 2010, affirming that
he was unable to work. The second time, he alleged a disability onset date of September 14,
2010, which was accepted by the SSA. He stated in his September application that he was
unable to work. Likewise, in 2011, Plaintiff applied for disability retirement benefits and
affirmed that he was disabled and could not perform the duties of suitable employment. He
stated it was a permanent situation and would continue for the remainder of his life. These
representations are entirely inconsistent with any claim in this case that he was able to perform
the essential functions of the sheet metal assembler job.
While Plaintiff is correct that a Social Security claim and an ADA claim are not always
mutually exclusive, the Supreme Court has made clear that “a plaintiff’s sworn assertion in an
application for disability benefits that []he is, for example, ‘unable to work’ will appear to negate

69

Hawkins, 778 F.3d at 889.

28

an essential element of [his] ADA case—at least if []he does not offer a sufficient explanation.”70
The Court explained: “To defeat summary judgment, that explanation must be sufficient to
warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-faith
belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions’ of
her job, with or without ‘reasonable accommodation.’”71 Plaintiff argues that HBC has not
provided this Court with a copy of a document signed by him that states he is unable to work and
merely relies on the fact that he received Social Security and retirement benefits. But this is not
accurate. Defendant submitted Plaintiff’s September 17, 2010 Social Security application, as
well as his disability retirement application, both of which state that he is unable to work.
Plaintiff also argues that he believed he could qualify for certain Social Security benefits
available to persons who are blind while working part-time. But as described below, Plaintiff
cannot show that he could have performed his job with reasonable accommodations, nor is there
any evidence in the record that part time work was an option for him at HBC.
Plaintiff argues that he was capable of performing the sheet metal assembly tasks with
reasonable accommodation. Plaintiff bears the burden of establishing the existence of a facially
reasonable accommodation.72 If Plaintiff is able to demonstrate the existence of a facially
reasonable accommodation, the burden then shifts to Defendant “to show its inability to provide
the requested accommodation.”73 Under the statute,

70

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806–07 (1999).

71

Id. at 807.

72

Hennagir, 587 F.3d at 1264.

73

Id.

29

The term “reasonable accommodation” may include—
(A) making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment
to a vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or interpreters, and
other similar accommodations for individuals with disabilities.74
Plaintiff requested the following accommodations when he was bumped back to the sheet
metal assembler position in 2010: have an occupational therapist perform an assessment of
Plaintiff’s work area, reassign him to another position, provide better overhead lighting, provide
instructional manuals and large-print blueprints, and provide him with an experienced trainer for
certain parts of the aircraft assembly. The Court finds that Plaintiff has fulfilled his burden of
establishing a facially reasonable accommodation as to the trainer, adding extra lamps to his
work area, and providing large-print pictures and instructional manuals.75 The uncontroverted
facts establish that Defendant accommodated each of these requests. Therefore, the Court must
determine whether Plaintiff’s requests for an outside occupational therapist evaluation,
reassignment to administrative tasks, or providing better overhead lighting were facially
reasonable requests.
Plaintiff asked HBC to revise the overhead lighting in the Government Business
Building, which was denied. Plaintiff had access to freestanding lamps that were available to
plant employees, and he moved them over to his work area. The Government Business Building
was one of the newer buildings at Defendant’s facility. While a reasonable jury could find that

74

42 U.S.C. § 12111(9).

75
Although the picture-based instructional manual was not completed before Plaintiff stopped working at
HBC, the company had been working with him to develop these manuals prior to his departure.

30

better lighting is certainly a reasonable request, the Court agrees no reasonable jury could find
that revising all overhead lighting in the plant was a reasonable accommodation. And even if
Plaintiff fulfilled his burden of demonstrating that this is a facially reasonable request, Defendant
has come forward with uncontroverted evidence that it could not provide this accommodation
given the cost. “The regulations do not mandate a reasonable accommodation which requires
‘undue hardship’ after a consideration of cost, financial resources, and the operation of the
entity.”76 Defendant has established that the aviation industry suffered a substantial downturn
due to economic factors beginning in 2008, and that as a result, there were a series of RIFs which
eventually caused thousands of HBC employees to lose their jobs. Indeed, one such RIF
immediately preceded Plaintiff’s request for this accommodation and was the cause of Plaintiff
bumping back to the sheet metal assembly department where he had seniority rights. In light of
this evidence, Defendant has met its burden of showing that it could not revise the overhead
lighting system in this newer plant given the cost and financial resources of Defendant at that
time.
Plaintiff also requested that an occupational therapist from Envision, an external
company, evaluate his work station and suggest improvements or accommodations. Assuming
that an evaluation by an occupational therapist is a facially reasonable request, Defendant has
met its burden of demonstrating its inability to retain an outside occupational therapist to
evaluate Plaintiff’s workstation in the Government Business building. Instead, HBC arranged
for a company ergonomist to evaluate Plaintiff’s workstation. Plaintiff fails to provide any
evidence that the outside occupational therapist was necessary as compared to the internal
76
Umholtz v. Kan. Dep’t of Soc. & Rehab. Servs., 926 F. Supp. 2d 1222, 1233 (D. Kan. 2013) (citing 29
C.F.R. § 1630.2(p)).

31

ergonomist that Cotman agreed to provide.
Plaintiff suggests that he could have been reassigned to administrative tasks; specifically,
writing tags for nonconforming parts, as he had done for part of his 2003–07 stint in sheet metal
assembly. But, as Plaintiff explained in his deposition, the task of tag writing was no longer part
of quality assurance in sheet metal assembly. The inspection department took over that work in
2007, around the time Plaintiff moved from sheet metal assembly to inspection. Therefore, in
order to perform the administrative task of tag writing in 2010, Plaintiff would have required a
transfer to the inspection department—a department in which he lacked the seniority he held in
sheet metal assembly.
The Tenth Circuit has explained:
Employers have a duty to reassign, but only when it is reasonable under
the circumstances. Typically, this means employers are only required to
reassign employees to existing vacant positions. A position is vacant
when a similarly situated, non-disabled employee would be able to apply
for it. And while employers need not promote an employee when they
reassign him, they are required to consider only lateral transfers or, if none
are available, demotions. Koessel bears the burden of identifying a
specific vacant position to which he could have reasonably been
reassigned.77
Plaintiff has presented no evidence of a vacant position as an inspector that was available to him
or any other similarly situated non-disabled employee after the August 2010 RIF. Due to his
lack of seniority, he was not in a position to transfer to that department, and an accommodation
is generally not considered reasonable if it conflicts with a collectively bargained-for seniority
system.78 Special circumstances might justify a departure from this general rule when it can be

77

Koessel, 717 F.3d at 745 (citations omitted).

78
See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 399–400 (2002); Barber v. Colo. Dep’t of Revenue, 562
F.3d 1222, 1232 (10th Cir. 2009).

32

shown that the requested accommodation is reasonable.79 Examples of such circumstances
provided by the Supreme Court include when the employer retains the right to change the
seniority system and does so frequently, or when the system contains so many exceptions that
one further exception would unlikely matter.80 Plaintiff has failed to meet his burden of showing
that special circumstances warranted HBC making an exception to the collective bargaining
agreement seniority system by transferring Plaintiff to the inspection department.81 While he
asserts that the collective bargaining agreement contains exceptions, he does not explain what
they are or how they are applied. Moreover, Plaintiff’s argument that HBC accommodated him
several years prior by assigning him to administrative tasks is unavailing given his testimony that
these tasks were moved to the inspection department where he lacked seniority. Plaintiff cannot
therefore meet his burden of demonstrating that reassignment was a facially reasonable
accommodation.
In sum, the Court finds that Plaintiff is unable to establish a genuine issue of material fact
about whether he sought reasonable accommodations to performing the essential functions of his
job as a sheet metal assembler. Many of the accommodations sought by Plaintiff were either met
by Defendant, or provided in a more cost effective manner. Others were either facially
unreasonable or would have caused Defendant an undue hardship. Accordingly, summary
judgment is warranted in favor of Defendant and against Plaintiff on Plaintiff’s claims of
discrimination on the basis of its failure to accommodate.

79

Barnett, 535 U.S. at 405.

80

Id.

81
Id. (“plaintiff must bear the burden of showing special circumstances that make an exception from the
seniority system reasonable in the particular case”).

33

2.

Discharge

As with Plaintiff’s failure to accommodate claim, Plaintiff is required on his unlawful
discharge claim to show that he was qualified to perform the essential functions of his job with
or without reasonable accommodation. As explained above, Defendant has pointed to an
absence of evidence that would support Plaintiff’s claim that he was qualified to perform his job
with reasonable accommodation, so Plaintiff’s termination claim must also fail because he
cannot prove the elements of a prima facie case of discrimination.
Moreover, Plaintiff cannot show that he was discharged. In order to succeed on his
unlawful discharge claim, Plaintiff must be able to show that his retirement was involuntary.82
The fact that Plaintiff was presented with “‘two unpleasant alternatives does not make the
resulting action involuntary.’”83 Plaintiff contends that he was given an ultimatum: either work
as a sheet metal assembler without the requested reasonable accommodations, or accept
disability retirement. But as described above, Plaintiff has not met his burden of showing that he
requested facially reasonable accommodations that Defendant either did not meet, or for which
Defendant has shown would cause an undue burden. The only accommodation substantiated by
Dr. Goertz—polycarbonate protective eyewear— was already provided by Defendant to its
employees. And the record does not indicate that Plaintiff ever presented Defendant with
documentation of this work restriction.
Moreover, Plaintiff cannot point to record evidence that his retirement was involuntary.

82

Emerson v. Widnall, 104 F.3d 367 (10th Cir. 1996) (unpublished table decision); Wall v. United States,
871 F.2d 1540, 1543 (10th Cir. 1989).
83
Areneson v. Heckler, 879 F.2d 393, 396 (8th Cir. 1989) (quoting Taylor v. United States, 591 F.2d 688,
690 (Cl. Ct. 1979)).

34

In applying for Social Security and disability retirement benefits, Plaintiff represented that he
would be unable to work for the remainder of his life. And the uncontroverted facts establish
that after Plaintiff filed his amended administrative complaint, Defendant offered to have its
third-party administrator rescind the retirement disability benefit if Plaintiff did not wish to
proceed with those benefits. Plaintiff declined the offer. Defendant has pointed to a lack of
evidence to support Plaintiff’s claim that his retirement was involuntary. Plaintiff conclusory
assertions otherwise do not support a claim that he was involuntarily discharged.
3.

Failure to Hire

Finally, Plaintiff alleges in the Pretrial Order that he was discriminated against when
HBC cancelled his interview for a Technical Specialist position in February 2011. Plaintiff
alleges that the interview was canceled after the selection coordinator learned of Plaintiff’s
disability and medical leave status. But it is uncontroverted that none of the applicants for the
Technical Specialist position were interviewed or hired because HBC learned that a previously
laid off worker who had previously performed the job was working for HBC as a contractor.
HBC hired this worker with previous experience and cancelled all scheduled interviews for the
position. Plaintiff has come forward with no evidence to suggest that this legitimate,
nondiscriminatory reason for failing to hire Plaintiff for this position is unworthy of belief.
Indeed, he can point to no similarly situated non-disabled individuals who did not have their
interviews cancelled. Accordingly, summary judgment is appropriate on this claim.
C.

Retaliation Claims

The elements of a prima facie claim of retaliation under the ADA are: (1) the employee
engaged in protected opposition to discrimination; (2) the employee suffered an adverse action

35

during or after his protected opposition that a reasonable employee would have found materially
adverse; and (3) a causal connection exists between the protected activity and the materially
adverse action.84
1.

Protected Opposition to Discrimination

Defendant does not dispute that Plaintiff engaged in protected activity by filing his
administrative claims with the KHRC. Plaintiff’s retaliation claims also allege that he was
retaliated against for seeking reasonable accommodations. A request for reasonable
accommodation is protected activity under the ADA.85 As described above, his claim that he
was retaliated against for requesting accommodations in November 2009 is not actionable
because it was not timely exhausted. However, Plaintiff also claims he was retaliated against
after he sought accommodations in August 2010, when HBC placed him on an involuntary
medical leave of absence. This claim was timely exhausted.
2.

Adverse Action

The “materially adverse” action element of a retaliation claim is more lenient than the
“adverse employment action” element of discrimination claims.86 In the context of a retaliation
claim, Title VII prohibits an employer from taking “materially adverse” action against an
employee because the employee opposed conduct that Title VII forbids or the employee
otherwise engaged in protected activity.87 “[A] plaintiff must show that a reasonable employee

84

Proctor v. UPS, 502 F.3d 1200, 1208 (10th Cir. 2007).

85

Wehrley v. Am. Family Mut. Ins. Co., 513 F. App’x 733, 740 (10th Cir. 2013).

86
See Piercy v. Maketa, 480 F.3d 1192, 1203 n.12 (10th Cir. 2007) (citing Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006)).
87

Burlington, 548 U.S. at 63.

36

would have found the challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.”88 The court examines claims of adverse action through a “case-by-case
approach, examining the unique factors relevant to the situation at hand.”89 The materiality of a
claimed adverse action is to be determined objectively; “petty slights, minor annoyances, and
simple lack of good manners” will not deter “a reasonable worker from making or supporting a
charge of discrimination.”90 The Tenth Circuit has emphasized that deciding whether an
employer’s actions are “materially adverse” is a case-specific exercise that requires an objective
inquiry that does not turn on a plaintiff’s personal feelings.91 In making a decision, the court is
obliged to consider the “‘constellation of surrounding circumstances, expectations and
relationships.’”92
Plaintiff alleges that Defendant took materially adverse actions by causing his
involuntary retirement and by placing him on involuntary medical leave in September 2010. He
argues that Defendant took other retaliatory measures against him such as conducting
“intimidating meetings” with him, refusing to communicate with his optometrist, assigning him
to janitorial duties, subjecting him to verbal abuse and insults, harassing him for staying late
when he was waiting for transportation, giving him ultimatums regarding returning to work or

88

Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1266 (10th Cir. 2009) (quoting Burlington, 548 U.S. at

67–68).
89

McGowan v. City of Eufala, 472 F.3d 736, 742 (10th Cir. 2006).

90

Id. (quoting Burlington, 548 U.S. at 68).

91

Semsroth v. City of Wichita, 555 F.3d 1182, 1184–85 (10th Cir. 2009).

92

Barone v. United Airlines, Inc., 355 F. App’x 169, 183 (10th Cir. 2009) (quoting Burlington, 548 U.S. at

69).

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being subject to termination, and altering his termination date by three weeks.93
As stated in the Court’s analysis of the discrimination claim, a reasonable jury could not
determine that Plaintiff was terminated from his position as a sheet metal assembler. Instead, the
record demonstrates that he voluntarily retired after his request for accommodation was partially
denied. Therefore, there is no genuine issue of material fact that his retirement was not an
adverse employment action.
The Court is unable to conclude that conducting “intimidating meetings,” assigning him to
janitorial duties, subjecting him to verbal abuse and insults, and harassing him for staying late
when he was waiting for transportation are materially adverse actions. Instead, to the extent
Plaintiff has any evidence to support this conduct, it falls into the category of “petty slights, minor
annoyances, or simple lack of good manners.” Moreover, Plaintiff testified that this alleged
conduct occurred in November 2009, so any claim based on this conduct would be untimely. The
Court is also mindful that Plaintiff continued to pursue his discrimination and retaliation claims
despite this conduct, suggesting that it was not sufficient to dissuade a reasonable worker from
supporting a charge of discrimination.94
As to Plaintiff’s assertion that HBC refused to communicate with his optometrist, he
points to no evidence in support. The record is replete with evidence that Plaintiff attempted,

93

Plaintiff has submitted no evidence of janitorial assignment, refusal to communicate with his optometrist,
intimidating meetings, or verbal abuse and insults. He testified in his deposition about being singled out and
questioned about why he was staying late past his shifts in order to wait for transportation. The Court therefore need
not consider these allegations of retaliation, referenced in the KHRC Complaint, but not included in this record.
Nonetheless, as described in this section, taking Plaintiff’s conclusory assertions as true, they fail to support a prima
facie case of retaliation under the ADA.
94
See Somoza v. Univ. of Denver, 513 F.3d 1206, 1214 (10th Cir. 2008) (“[T]he fact that an employee
continues to be undeterred in his or her pursuit of a remedy, as here was the case, may shed light as to whether the
actions are sufficiently material and adverse to be actionable.”).

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without success, to obtain documentation from Dr. Goertz that he was prohibited from working in
sheet metal assembly. Dr. Goertz declined to go so far as to say that Plaintiff could not work in
sheet metal assembly; the closest restriction she provided in writing was that he must protect his
eyes and wear polycarbonate lenses. Importantly, there is no evidence in the record that Plaintiff
provided any of the letters he did obtain from Dr. Goertz to HBC.
The Court does find that a reasonable jury could determine that placing Plaintiff on
involuntary medical leave would dissuade a reasonable employee from making or supporting a
charge of discrimination. While the evidence on this point is slight, given that Plaintiff proceeded
to file a charge of discrimination despite this action, it is undisputed that this medical leave was
involuntary.
3.

Causal Connection

The Tenth Circuit has found a causal connection exists between the protected activity and
the materially adverse action “where the plaintiff presents evidence of circumstances that justify
an inference of retaliatory motive.”95 Courts typically consider “protected conduct closely
followed by adverse action” as sufficient evidence.96 However, when sufficient time has elapsed
between the protected conduct and the adverse action, a court requires “additional evidence
beyond temporal proximity to establish causation.”97
When analyzing the additional evidence, the court can consider all the proffered evidence

95

Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007).

96

Id. (emphasis added).

97
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999); see e.g., Haynes v. Level 3
Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006) (holding one and one-half months establishes causation
while three months is too long and does not).

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of retaliatory motive, which includes pretext evidence.98 “In order to make a prima facie case,
one must only introduce evidence from which an inference can be drawn that an employer would
not have taken the adverse action had the employee not filed prior discrimination charges.”99
Ultimately, the burden of establishing a prima facie case is not onerous, but “[t]o defeat a motion
for summary judgment, evidence, including testimony, must be based on more than mere
speculation, conjecture, or surmise.”100 The Supreme Court has recently clarified that a Title VII
plaintiff asserting a claim of retaliation must show that his protected activity was the but-for cause
of the alleged adverse employment action, and not merely a motivating factor.101 The ADA uses
similar “because” language, and the Tenth Circuit has consistently applied the Title VII
framework to ADA retaliation claims.102
Other than discharge, Plaintiff claims retaliation in the form of conducting “intimidating

98

Xia v. Salazar, 503 F. App’x 577, 580 (10th Cir. 2012) (citing Anderson, 181 F.3d at 1179).

99

Tex. Dept. of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981)

100

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (affirming grant of summary judgment
to employer because “[u]nsubstantiated allegations carry no probative weight in summary judgment proceedings.”).
101

Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).

102

42 U.S.C. § 12203(a) (“No person shall discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter.”). Although the Tenth Circuit has not had the
opportunity to apply the but-for causation standard to ADA retaliation claims, lower courts have reasoned that
because ADA retaliation claims are analyzed under the same framework as Title VII retaliation claims, the Nassar
but-for standard applies outside the context of Title VII. See Purcell v. Am. Legion, 44 F. Supp. 3d 1051, 1057 (E.D.
Wash. 2014); Nayak v. St. Vincent Hosp. & Health Care Ctr., Inc., No. 12-cv-00817-RLY-DML, 2014 WL
3942362, at *1 (S.D. Ind. Aug. 12, 2014); Hutchins v. DirecTV Customer Serv., Inc., No. 11-CV-422-REB, 2014
WL 3572045, at *12 (D. Idaho July 21, 2014); Carvajal v. Pride Indus., Inc., No. 10cv2319-GPC, 2014 WL
1921732, at *6 (S.D. Cal. May 14, 2014) (collecting cases); Goodwin v. Wellstar Health Sys., Inc., No. 12-cv-3752WSD, 2014 WL 1275593, at *4 n.8 (N.D. Ga. Mar. 27, 2014) (applying “but-for” causation standard to ADA claim
because it includes “because” language similar to Title VII); Brooks v. Capistrano Unified Sch. Dist., No. 12-01934JLS, 2014 WL 794581, at *6 (C.D. Cal. Feb. 20, 2014) (applying “but-for” causation standard to ADA claim
because ADA claims are subject to the same framework of analysis as that of Title VII claims). Cf. Melin v. Verizon
Bus., Inc., No. 12-cv-2426-EFM, 2014 WL 978813, at *12 (D. Kan. Mar. 1, 2014) (holding that since plaintiff could
not establish causation in ADA claim under the more minimal standard, it stood to reason he could not maintain
causation under the heightened standard in Nassar).

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meetings” with him, assigning him to janitorial duties, subjecting him to verbal abuse and insults,
and harassing him for staying late when he was waiting for transportation. Plaintiff did not return
to work at HBC after he was placed on medical leave in September 2010, so none of this conduct
could have been the result of filing the administrative complaints in February 2011, August 2011,
or September 2011. To be sure, Plaintiff alleges that these retaliatory actions were in response to
his November 2009 request for accommodation, which is a time-barred claim.
Plaintiff provides no evidence about when HBC allegedly refused to communicate with
Dr. Goertz. The only evidence in the record about Dr. Goertz communicating with HBC took
place on May 21, 2010, when Dr. Goertz spoke with Plaintiff’s supervisor Renee Cooper, who
stated she had not received previous letters from Dr. Goertz and that she did not know why
Plaintiff needed them because she did not oversee the sheet metal department. This
communication occurred before Plaintiff requested accommodation in August 2010, and well
before his KHRC complaint was filed in February 2011.
Plaintiff sought accommodations for his visual impairment again in August 2010, and
maintained that without his requested accommodations, he could not perform his job. Within a
few weeks, Plaintiff was placed on medical leave for approximately one year unless he provided
documentation that he could work after all before that time period elapsed. During part of this
time Plaintiff obtained short term disability benefits. The temporal proximity between Plaintiff’s
request for accommodations and his medical leave was a matter of weeks; sufficient to establish
causation based on temporal proximity.
4.

Pretext

As stated above, the only retaliation claim for which Plaintiff has fulfilled his burden of

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establishing a prima facie case is his claim that Defendant retaliated against him in September
2010 when it placed him on involuntary medical leave after he requested accommodations for his
visual impairment. Defendant maintains that it placed Plaintiff on medical leave in September
2010 because he was unable to work due to incapacity, consistent with company policy. Because
Defendant is able to articulate a legitimate nondiscriminatory reason for this employment action,
the burden shifts to Plaintiff to show “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence.”103
The uncontroverted facts show that Plaintiff asserted his inability to work in sheet metal
assembly without accommodation. Defendant partially accommodated Plaintiff’s requests,
however, it declined to provide several of his requested accommodations based on undue burden
or because it would violate the collective bargaining agreement. Plaintiff was told that he could
return to work, stay on medical leave, or initiate the disability retirement process. Although
Plaintiff characterizes these options as an ultimatum, he fails to explain why they are untrue
statements of his options or why Defendant’s explanation for its action is unworthy of belief. As
discussed on the discrimination claims, no reasonable factfinder could conclude that Defendant
denied Plaintiff’s request for reasonable accommodations and it is undisputed that Plaintiff could
not perform the essential functions of his job without such accommodation. Moreover, it is
uncontroverted that reassigning Plaintiff to an administrative position would have violated the
collective bargaining agreement and it was therefore not an option after the August 2010 RIF.
Although Plaintiff argues that similarly situated non-disabled employees were given favorable

103

E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1052 (10th Cir. 2011) (citation and quotation marks

omitted).

42

reassignments for which they lacked seniority, he fails to come forward with evidence that would
be admissible at trial to support this contention. Plaintiff’s own testimony on this point would be
inadmissible for lack personal knowledge about the seniority and qualifications of these other
employees. In sum, summary judgment is granted in favor of Defendant on all retaliation claims.
VI.

Conclusion
Plaintiff’s cross-motion for summary judgment must be denied, even if it had been timely

filed. Because Plaintiff bears the ultimate burden of persuasion on his claims of discrimination
and retaliation, he was required to establish as a matter of law all essential elements of his claims.
He has not met that burden. Defendant, as the party who does not bear the ultimate burden of
persuasion in this case, has met its summary judgment burden of demonstrating a lack of evidence
that would produce a genuine issue of material fact on any of the essential elements of Plaintiff’s
claims. Plaintiff is unable to show, with the support of record evidence, that he was willing to
perform the essential functions of his job with or without reasonable accommodations. Plaintiff’s
claims of discrimination thus fail.
Plaintiff’s retaliation claims also fall short. While he certainly engaged in protected
activity by filing an administrative charge of discrimination and by requesting reasonable
accommodations, he could not show that HBC took materially adverse actions against him
because of these protected activities. Nor could Plaintiff point to evidence that Defendant’s
legitimate, nonretaliatory explanation for his involuntary medical leave was unworthy of belief.
Because there are no genuine issues of material fact to support Plaintiff’s discrimination
and retaliation claims in this case, his favorable rulings from the KHRC and EEOC will not
suffice to create triable issues of fact and summary judgment is granted in favor of Defendant on

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all claims.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (Doc. 147) is granted, and Plaintiff’s Cross-Motion for Summary Judgment
(Doc. 153) is denied.
IT IS FURTHER ORDERED BY THE COURT that Plaintiff’s Motion for Leave to
File Sur-Reply (Doc. 162) is moot and Plaintiff’s Amended Motion for Leave to File Sur-Reply
(Doc. 163) is granted. Defendant’s Motion to Strike Plaintiff’s Response to Defendant’s Reply
to Defendant’s Motion for Summary Judgment (Doc. 167) is denied.
Dated: May 26, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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