Bailey v. Metal-Fab, Inc.
Filing
60
MEMORANDUM AND ORDER denying 44 Defendant's Motion for Summary Judgment. Signed by District Judge John W. Broomes on 10/15/2020. (mam)
Case 6:19-cv-01098-JWB Document 60 Filed 10/15/20 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALISHA BAILEY,
Plaintiff,
v.
Case No. 19-1098-JWB
METAL-FAB, INC.,
Defendant.
MEMORANDUM AND ORDER
Before the court is Defendant’s motion for summary judgment. (Doc. 44.) The motion is
fully briefed and is ripe for decision. (Docs. 45, 50, 59.) For the reasons stated herein, Defendant’s
motion for summary judgment is DENIED.
I. Uncontroverted Facts
In keeping with the standards governing summary judgment, the following statement of
facts views the evidence, and all reasonable inferences therefrom, in the light most favorable to
Plaintiff as the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(evidence is viewed in the light most favorable to the non-moving party on summary judgment
because credibility determinations, weighing conflicting evidence, and drawing appropriate
inferences are jury rather than judge functions).
Plaintiff was terminated from her position with Defendant as a “fabricator” (also known as
a sheet metal assembler) on October 10, 2018, after she was diagnosed with a seizure disorder.
Defendant does not dispute that Plaintiff’s condition constitutes a disability within the meaning of
the Americans with Disabilities Act (ADA). (Doc. 50 at 9.) Plaintiff contends she is a qualified
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individual as defined by the ADA who can perform the essential functions of her job, with or
without reasonable accommodation, and that Defendant discriminated against her on the basis of
a disability by terminating her employment. (Doc. 41 at 7.)
Defendant Metal-Fab, Inc. manufactures and provides ventilation products and services to
the HVAC, hearth, and plumbing markets. Defendant is OSHA compliant and ensures that its
facility is as safe as possible for all employees. (Doc. 45 at 2.)
Defendant’s operation included a large machine shop divided into work groups called
shops. Plaintiff began working as a fabricator for Defendant in August 2008. Prior to her
termination, Plaintiff worked for two and half years in the shop known as “fire damper,” which
was named for the part made there. Before that, she worked in “elbow.” (Doc. 50 at 9.)
Defendant’s written job description for the position of Fabricator provides the following
summary of duties: “Operates fabricating machines such as rivet machines, shears, rolls, breaks,
presses, welding machines, forming machines such as hydro & stretch and punch, automatic
equipment, that cut, shape, and bend metal plates, sheets, tubes, and structures by performing the
following duties.” (Doc. 45 at 3.) The job description listed the essential duties the employee
must be able to perform, including the following:
i. Continuously operate fabrication machinery and equipment. Reads job
specifications in English to determine machine adjustments and material
requirements.
ii. Frequently sets stops or guides to specified length as indicated by scale, rule,
drawing specifications or template.
iii. Continuously positions work piece against stops or aligns layout marks with
die or blade.
iv. Continuously pushes buttons or depresses foot pedal to activate machine.
v. Continuously observes machine operation to detect work piece defects or
machine malfunction.
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vi. Frequently removes burrs, sharp edges, rust, or scale from work piece.
vii. Occasionally sets up and performs maintenance on fabrication and shop
machines.
viii. Continuous ability to do detailed and repetitive work with speed and accuracy
according to standards.
ix. Continuously performs work in a safe manner.
x. Continuously dependable.
xi. Continuously operates any equipment needed to perform job.
xii. Performs other duties as assigned with efficiency. Assists other grades
and supervisors as needed and works in other departments when needed.
(Id.)
The job description also describes the work environment, including:
i. While performing the duties of his job, the employee regularly works near
moving mechanical parts.
ii. The employee is exposed to risk [of] electrical shock if employee does not follow
instructions.
(Id. at 3-4.)
Although the job description says fabricators operate shears and presses, Plaintiff had never
done that. (Doc. 50-11 at 1.) Plaintiff was not required to continuously operate fabrication
machinery in the fire damper shop in the two and half years before her termination. (Id. at 2.) Her
job “breaking frames” was performed at a bench and used a non-mechanical press. (Id.) There
were other positions in fire damper, like assembling “butterflies,” that similarly did not use a
machine. The job of “catching frames” – taking frames off a machine and moving them to the
bench – did not require the use of a machine. Cutting insulation and packing and labeling, which
were also done in fire damper, did not require the use of a machine. (Id.)
As an essential function of her job, Plaintiff occasionally “floated” to other departments
operating other equipment and machines when circumstances dictated a need. Plaintiff was
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informed that floating was an essential function of her position in her interview. Plaintiff worked
primarily in the fire damper department, catching and breaking frames. (Id. at 4.) Plaintiff was
sometimes asked to float to other departments depending on production needs. (Doc. 45 at 5.)
On June 27, 2018, Plaintiff was driving to work and had an accident. As Plaintiff was
making a left turn onto the road to Defendant’s parking lot, she drove past the intersection before
she turned, causing her to turn too wide, and she sideswiped an electrical pole and fence. She then
continued on to work. When she arrived, she noticed damage to her car window and thought that
someone must have tried to break in to her car overnight. A few hours after her shift started,
Plaintiff was called to the front office. The police were there and said they had video of her
sideswiping a utility pole and fence. Plaintiff had no memory of the incident. She was worried
that something was wrong and asked Defendant if she could be excused to go to the hospital. She
was told she would be written up for attendance if she left, so she finished her shift. (Doc. 50 at
11.) After work, Plaintiff’s mother took her to Wesley Medical Center where she was hospitalized
overnight and diagnosed with petit mal seizures, which are brief seizures. (Doc. 45 at 5.) Plaintiff
was previously unaware of the condition.
Plaintiff began keeping a seizure log in June 2018 to record the seizure activity reported to
her after-the-fact by her family. (Id.) Plaintiff recorded the length of her seizures by the time
someone who had observed her said she was “spaced out.” (Doc. 50 at 9.) Plaintiff initially
experienced an aura, which is a strong foreboding feeling. She may look “spaced out” during an
aura but she would still be conscious of what was going on. If the aura was followed by a seizure,
then she would not be able to recall how much of the time she was conscious and how much she
was not. (Id.) Sometimes only the aura (and no seizure) occurred. When that happened, someone
watching might think she was “spaced out” and having a seizure, but she remained conscious of
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what was going on. An aura does not cause the same degree of confusion afterwards as a seizure.
(Id.)
Plaintiff’s seizures occasionally cause her to lose her train of thought and to become
disoriented afterwards. She has never had a seizure last longer than 45 or 60 seconds. (Doc. 50 at
7.) Plaintiff’s seizures can cause staring spells, grinding teeth, gripping of objects with hands, and
bladder incontinence. (Doc. 45 at 5.)
On June 28, 2018, Defendants asked Plaintiff to have her physician fill out a healthcare
provider form as part of an “accommodation interactive process.” On June 29, 2018, Plaintiff’s
physician, Dr. Hassan, gave her a permanent restriction of “No exposure to bright lights (i.e.,
welding) continuously.” On July 3, 2018, Dr. Hassan completed a Certification of Health Care
Provider for Employee’s Serious Health Condition. (Doc. 45 at 6.) On July 9, Dr. Hassan
responded to a request from Defendant by filling out a Healthcare Provider’s Response to an
ADA [Americans with Disabilities Act] Accommodation Request. Dr. Hassan told Defendant that
Plaintiff was not released to return to work and that he would decide upon follow-up in two months
when she can return. Defendant granted Plaintiff up to 12 weeks of leave under the Family Medical
Leave Act (FMLA), retroactive to June 28. On September 10, Dr. Hassan told Defendant that
Plaintiff was not able to return to work without restrictions and was not able to work with limited
duties. (Id.)
On September 13, Defendant asked Plaintiff to have a physician complete a Health Care
Provider’s Form. Defendant also sent a letter to Dr. Hassan with a job description and what was
described as “a short video of the work which Ms. Bailey performs and her related working
conditions at Metal Fab.” (Doc. 45 at 6.) The video showed the two shops in which Plaintiff had
worked most recently, although it did not show employees at work. At Dr. Hassan’s request,
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Defendant’s Human Resources Director Dan Hamel provided a second video showing individuals
performing tasks Plaintiff performed and the related working conditions. (Doc. 50 at 13.) On
September 25, Defendant sent Plaintiff a letter saying her FMLA had expired and “if you need an
accommodation, please let me know.” (Doc. 45 at 6.)
On September 28, 2018, Dr. Hassan returned a Fitness for Duty certification to Defendant
that stated Plaintiff was able to return to work as of October 2 with the following permanent
restrictions: no welding and that machinery needs to be guarded with safety devices to prevent
unexpected injury. (Id.) Dr. Hassan also determined that Plaintiff has an impairment and that
when she is having a seizure, she is substantially limited in thinking, concentrating, and performing
manual tasks. He said she cannot operate machinery if it is unprotected and that she must avoid
ladders, unprotected heights, or operating unprotected machines. She cannot weld. She can
perform duties as long as equipment or machinery is guarded with the safety devices from
unexpected injury. Dr. Hassan mistakenly dated the second part of the form 7/28/18 instead of
9/28/18. (Id.) Defendant subsequently received the same restrictions from Dr. Hassan on a form
correctly dated October 4, 2018.
Defendant had two customer service positions available between June and December of
2018. Defendant determined that Plaintiff did not meet the qualifications for either position.
Plaintiff confirmed that Defendant did not have any other available office positions for which she
was qualified during her medical leave; her doctor would have cleared her to work in an office as
opposed to her current position on the factory floor. Defendant had various maintenance tech
positions available between June and December of 2018. Defendant determined that Plaintiff did
not meet the qualifications for those positions. (Doc. 45 at 7.)
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Prior to her termination, Plaintiff and Hamel talked about her medical condition numerous
times. During their conversations, Plaintiff told Hamel she had petit mal seizures that lasted only
seconds. Despite that, Hamel assumed she had had a seizure that lasted a few minutes, because
Plaintiff told him she “didn’t remember any of it” on the day she ran into the fence, and he believed
there was a substantial amount of time from when she hit the fence until she arrived at work. (Doc.
50-5 at 3-4.) Hamel did not talk to a doctor about his assumption that Plaintiff’s seizures lasted a
few minutes. (Id. at 80.) Hamel included his presumption that her seizures could last a few
minutes in his termination letter.
Plaintiff told Hamel that when she had seizures it was like daydreaming and that she just
“spaced out.” (Doc. 50 at 12.) She told him that as soon as her seizures were under control, Dr.
Hassan would release her to return to work. She also told him her seizures did not cause her to
fall. (Id.) Hamel knew that people having petit mal seizures typically do not flail or fall. Plaintiff
never told Hamel that she injured herself or anyone else during a seizure, because she had not.
(Id.)
Defendant determined that Plaintiff could not safely perform her job duties without an
accommodation and that it could not offer her a reasonable accommodation without undue
hardship. (Id. at 8.) The decision was made by Hamel in conjunction with department managers
Harris, Erwin, and Gormley, as well as President Ohm (“the decisionmakers.”) (Doc. 50 at 13.)
Hamel reviewed Plaintiff’s medical documentation and ADA standards for accommodation and
for determining whether an employee is a direct threat to the safety of herself or others, although
he did not explain the company’s ADA obligations or the meaning of terms such as “direct threat”
to the other decisionmakers. (Doc. 50-5 at 6, 23.1)
1
Plaintiff’s deposition excerpt pages are attached to her brief in non-numerical (and apparently random) order, making
it difficult to locate the evidentiary materials she cites.
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Hamel first talked with Harris, the first shift plant superintendent, and asked him whether
Plaintiff’s restrictions would work in the facility. Harris answered no, opining that Plaintiff was a
risk to herself because of sharp objects all around and because she could put others in jeopardy
working around her. (Doc. 50 at 14.) Harris does not remember if he knew, when he offered this
opinion, anything about whether Plaintiff fell down when she had seizures, or the duration,
frequency, or likelihood of her seizures. Harris testified that no one in his conversations about
Plaintiff discussed the likelihood of her having a seizure, and he did not know the likelihood. (Id.)
Hamel recalled discussing with Harris that “if she were to have a seizure she potentially could go
down on a piece of metal and hurt herself.” (Id.) Hamel and Harris discussed how Dr. Hassan’s
note said Plaintiff “could be unconscious for periods of time,” although the note actually said
Plaintiff could be briefly “unaware of her surroundings” during a seizure, not unconscious. (Id.)
Hamel’s opinion was that no one with a seizure disorder could work at Metal-Fab, regardless of
the length of the seizures.2 (Doc. 50-5 at 8.)
Harris testified that all of Defendant’s machines were compliant with OSHA requirements
for guarding. The reason machines are guarded is so employees do not injure themselves when
they are “not aware of their surroundings and what’s happening.” (Doc. 50 at 16.) Hamel testified
that the machines Plaintiff would encounter at work were guarded with safety devices to prevent
unexpected injury. (Doc. 50 at 16.)
Hamel identified the risk from Plaintiff working as “the potential for her to have a seizure
to where she would lose consciousness in the production facility in and near the equipment, the
2
Defendant disputes this characterization, but Plaintiff cites a portion of Hamel’s deposition testimony from which a
jury could make such a finding. (Doc. 50-5 at 8, 19) (“Q. Is it your testimony, sir, that no one with a seizure condition
can work in the shop at Metal-Fab? A. Yes. Q. And that is true no matter the length of the seizures? A. Yes.”)
Hamel’s knowledge and opinions were apparently based in part on his personal experience with his brother-in-law,
who had petit mal seizures and drowned as a result of one. (Id. at 8, 38.)
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metal, the forklifts.” (Id. at 15.) Hamel thought there was a significant risk of harm if Plaintiff
were to have a seizure near equipment because “if she would become unstable she could fall into
a piece of equipment and get behind a guard or she could potentially lose her stability and push
somebody else into it.” (Id.) He believed “if she were to brace herself on something and come
down she could end up slicing her – getting a laceration.” (Id.) Hamel knew Plaintiff did not fall
during her seizures. (Id.)
Employees other than Plaintiff had previously fallen in the shop. None of them had seizure
disorders. Some had hurt themselves and some had not. It was a risk to all employees that they
might fall in the shop and hurt themselves on sharp objects. (Id. at 16.)
Hamel testified that Plaintiff could not be around welding flashes and that was one of the
reasons Plaintiff was terminated. (Id.) Dr. Hassan’s restrictions said only “no welding,” and
Hamel never clarified whether that meant Plaintiff could not weld or whether she could not be in
the vicinity of welding. Hamel knew he was allowed to reach out to physicians for clarification
of restrictions, but he did not do so concerning the welding restriction. (Id.) Plaintiff told Hamel
at some point she could not be around welding arcs or flashes because they might trigger a seizure.
(Doc. 59 at 10.) But at Hamel’s request, Plaintiff asked Dr. Hassan whether the “no welding”
restriction meant she could not weld or could not be around welding. According to Plaintiff’s
affidavit, Dr. Hassan said, “that as long as [Plaintiff] was not the one welding, [she] could work in
a shop where welding occurred.” (Doc. 50-11 at 5.) Plaintiff relayed this to Hamel and he did not
mention welding again. Hamel never told Plaintiff that her termination was due to an inability to
be around welding. (Doc. 50 at 17; Doc. 50-11 at 5.3)
3
Defendant argues Plaintiff’s version of events about the welding restriction is not inconsistent with Hamel’s because
her affidavit does not address whether she could work “in a shop where welding curtains do not reach the ceiling and
she would be exposed to bright lights and welding arcs.” (Doc. 59 at 10-11.) But viewed in the light most favorable
to Plaintiff, the two versions are inconsistent, such that the court accepts Plaintiff’s version for purposes of summary
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Welding was not identified as an essential function on Defendant’s list of essential
functions. Not all fabricators engaged in welding. The welding in the vicinity of Plaintiff’s
workstation has shields so she is not exposed to welding flashes.
Hamel testified that having a seizure near a forklift would make Plaintiff a direct threat to
herself or others. The significant risk of injury he described was that Plaintiff had “the ability to
walk in front of a forklift and have a space out moment where she could be injured.” (Doc. 50 at
18.) At Metal-Fab, forklift drivers travel in the same lane and same direction as workers. Forklift
drivers must wait for employees to step aside and yield the right-of-way before the forklift
proceeds. (Id.) Plaintiff does not regularly encounter forklifts in the aisles at work. Forklift drivers
work in the warehouse as well as the shop. Fabricators are not allowed to go to the warehouse, so
Plaintiff does not encounter forklifts there. When Plaintiff would arrive for her shift, she had to
walk in the forklift aisles, but the forklift drivers were arriving at the same time for their shift, so
they were not driving in the aisles. (Id.) During a shift change, when Plaintiff would leave her
shop for home, she would walk in a forklift aisle, but forklift drivers ordinarily avoided the area
during a shift change. Forklift drivers deliver materials to the shops, but the materials are left on
the shop’s outside perimeter. Forklifts do not drive through the area where Plaintiff and her
coworkers work, so Plaintiff would not encounter forklifts as she performed tasks at her bench.
During a shift, Plaintiff might encounter a forklift if she were in the aisle walking to the bathroom
judgment. Plaintiff specifically inquired of Dr. Hassan whether she could be around welding and was told that she
could, a fact that she relayed to Hamel. Hamel said no more about it and did not mention it when he terminated her.
Yet, he later testified that Plaintiff’s inability to be around welding flashes was a reason for her termination. Defendant
argues this after-the-fact rationale was justified by Dr. Hassan’s restrictions, but those restrictions only precluded
“exposure to bright lights (i.e. welding) continuously.” (Doc. 45 at 5) (emphasis added.) A reasonable finder of fact
could determine that the restriction did not prevent Plaintiff from working in the shop merely because welding curtains
might not completely obscure welding arcs and flashes, and moreover that Hamel was or should have been aware of
Dr. Hassan’s conclusion that Plaintiff could safely work around welding.
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or going to the office or somewhere outside. At most, she might be in a forklift aisle while a
forklift is traveling a few times a week. (Id. at 18-19.)
Near the bathrooms there is a chain that is put up when forklifts are putting parts on the
machines there. The chain is a safety device to keep workers from walking in front of a forklift or
into an area where the driver might have a hard time seeing an employee or the employee might
have a hard time seeing the forklift. No Metal-Fab forklift driver has ever run into a pedestrian,
although workers (other than Plaintiff) who weren’t paying attention have walked in front of
forklifts causing “close calls.” Forklift drivers have always been able to avoid an accident in these
situations. Forklifts are equipped with horns and beepers to warn pedestrians and with brakes to
avoid them. Hamel also testified that Plaintiff was a direct threat because there was a risk that she
could walk in front of a forklift and the driver could swerve to miss her and hit a co-employee.
Such a scenario has never happened at Metal-Fab. (Doc. 50 at 19.)
Ohm, the company president and CEO, testified that he and Hamel decided to terminate
Plaintiff after input from other managers. He testified no one had explained the definition of
“direct threat” to him and he never saw Plaintiff’s medical restrictions, although he discussed the
restrictions with Hamel or others. Ohm testified there was no discussion of the likelihood of
Plaintiff being injured, nor was there any discussion of the imminence of her injury. (Id. at 15.)
On October 10, 2018, Hamel called Plaintiff and terminated her employment. Defendant
sent a letter confirming the phone conversation and the termination. (Doc. 45 at 8.) Hamel told
Plaintiff it was not safe for her to be around machinery. Hamel did not mention welding or forklifts
as being dangers in either the phone call or the termination letter. (Doc. 50 at 19.)
Prior to her termination, on September 27, 2018, Plaintiff filled out a “Function Report”
as part of her application for Supplemental Security Income (“SSI”). She reported that, as of
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September 27, she “can’t work, can’t drive, [has] issues with incontinence and can’t focus or
concentrate very well and get[s] confused.” (Doc. 45 at 8.) She further reported that “[d]uring
and after any seizures [she] get[s] really tired, confused, headaches, memory loss, loss of focus
briefly.”
(Id.)
She reported that her stair climbing, memory, ability to complete tasks,
concentration, and understanding have all been affected by her seizure disorder. (Id.)
Plaintiff had brief seizures while she was on leave (from July-September 2018) prior to her
termination. By the time of her termination she had been seizure-free for almost a month. (Doc.
50-11 at 3.) Over the next seven months, she had only 35 seconds of seizure activity of the “staring”
kind, though on occasion she had auras, which can be but are not necessarily a precursor to a
seizure. (Id.) Since June of 2019, Plaintiff has had neither seizures nor auras because her
medication controls both. (Id.; Doc. 50-2 at 7.) Plaintiff does not allege that she told Defendant
she had been seizure-free for a month at the time of her termination, although she testified she told
Hamel that Dr. Hassan would release her to return to work as soon as her seizures were under
control. (Doc. 50 at 12.) Dr. Hassan signed a release on September 28, 2018, and again on October
4, 2018. (Doc. 45 at 6.)
Terry Cordray, M.S., C.R.C., is a vocational expert who completed an evaluation of
Plaintiff’s medical records, job description, and other records and opined that, other than forklifts,
there were no dangers that would make it unsafe for Plaintiff to work at Metal-Fab. Cordray
testified he would have to find out if there were forklifts in Plaintiff’s work area because, if there
were, his opinion “will be that she should not be around moving forklifts given her seizure activity
and that she would not be safe to work in that area.” (Doc. 50 at 8.) Cordray’s testimony indicated
that an employee who cannot be exposed to welding flashes can be protected by curtains that go
to the ceiling. (Id. at 17.)
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Steve Benjamin, M.S., C.R.C., is a vocational expert who completed an evaluation of
Plaintiff’s medical records, job description, and other records and opined that Plaintiff could safely
perform her job duties at Metal-Fab with accommodations. Benjamin had spent six years at Boeing
developing in-house accommodations in machine shops and was very familiar with the type of
machinery at Defendant’s shop.
Benjamin’s evaluation included a tour of the plant with
Defendant’s director of manufacturing and an examination of the shops where Plaintiff worked.
(Id. at 8.) During his tour, Benjamin saw a spot welder with a welding screen across the aisle and
another area with screens that completely blocked out the welding flashes. (Id. at 17.) Benjamin
read the first part of Dr. Hassan’s limitation (“Avoid activities which sudden loss of consciousness
may expose her to risk or injury”) as a general statement of the goal and the next section as specific
instructions as to how to do that: “Avoid ladders, climbing on unprotected heights and operating
unprotected machinery.” (Id. at 20.) Plaintiff’s job did not require that she climb ladders or work
at unprotected heights. (Id.) Benjamin found no trip hazards in the shops where Plaintiff worked,
found machines had guards and shields in place, found foot actuators or safety beam sensors, and
standard safety features. (Id. at 21.) Benjamin’s opinion was that the machinery guards were
satisfactory to accommodate Plaintiff working there safely. (Id.)
Benjamin did not believe that sharp objects in the shop were an issue for someone with
petit mal seizures because such persons generally do not fall. Benjamin had worked with quite a
few people with petit mal seizures who “just stare off in space for a while” and “don’t generally
fall.” (Id.) Benjamin believed Plaintiff could safely work within Dr. Hassan’s limitations if she
was not required to weld. He testified she could “walk in today and go back to her station and
perform her job safely without risking harm to herself or others.” (Id.) Benjamin did an analysis
of the direct threat criteria and said that because petit mal seizures were 90 seconds or less they
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were of brief duration. He opined that Plaintiff’s risk of falling or cutting or hurting herself “isn’t
more likely than anyone else falling in the work area.” (Id.) He did not consider any harm to
Plaintiff to be imminent from her condition. (Id.)
Plaintiff was unemployed from November 2018 until February 13, 2020, when she worked
one week. She has been employed full-time as an assembler since March of 2020. (Doc. 45-9 at
3.)
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are
“genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's
favor. Sotunde v. Safeway, Inc., 716 F. App'x 758, 761 (10th Cir. 2017). The movant bears the
initial burden of proof and must show the lack of evidence on an essential element of the claim.
Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986)). The nonmovant must then bring forth specific facts
showing a genuine issue for trial. Id. Any statement of fact that has not been controverted by
Plaintiff's affidavit or an exhibit is deemed to be admitted. D. Kan. Rule 7.4. Also, the court will
only consider facts based on personal knowledge or supported by exhibits. Conclusory allegations
are not sufficient to create a dispute as to an issue of material fact. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The court views all evidence and reasonable inferences in the light
most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927
(10th Cir. 2004).
III. Analysis
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1.
Ability to perform essential functions.
The ADA prohibits employers from
discriminating against “a qualified individual on the basis of a disability.” 42 U.S.C. §12112(a).
To establish a prima facie case of discrimination, a plaintiff must show: (1) she is disabled within
the meaning of the ADA; (2) she is qualified, with or without reasonable accommodation, to
perform the essential functions of the job held or desired; and (3) she was discriminated against
because of her disability. Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1266 (10th Cir.
2015). Establishing a prima facie case “is not onerous” and may be inappropriate for summary
determination when the employee cites evidence that she can perform the essential functions of
the position with the aid of an accommodation. Id. (citations omitted.)
For purposes of the instant motion, the only prima facie element in dispute is whether
Plaintiff is qualified to perform the essential elements of her position. In determining this issue,
courts typically use a two-part inquiry, that first asks whether the individual can perform the
essential functions of the job. If the individual is unable to perform the essential functions, the
court determines whether any reasonable accommodation by the employer would enable her to
perform those functions. Id. at 1267 (citing Davidson v. Am. Online, Inc., 337 F.3d 1179, (10th
Cir. 2003)). Plaintiffs bears the burden of showing she can perform the essential functions. Id.
Reasonable accommodation refers to “those accommodations which presently, or in the near
future, enable the employee to perform the essential functions of [her] job.” Aubrey v. Koppes,,
___F.3d___, 2020 WL 5583649, at *7 (10th Cir. Sept. 18, 2020) (quoting Lincoln v. BNSF Ry.,
900 F.3d 1166, 1205 (10th Cir. 2018)).
Defendant contends Plaintiff fails to show she is capable, with or without accommodation,
of performing the essential functions of the position. Defendant argues that Plaintiff’s impairment
prevents her from being able to work safely “in a factory setting around dangerous machinery.”
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(Doc. 45 at 13.) Defendant also argues there is no reasonable accommodation that would allow
Plaintiff to float between departments because “even walking between departments or to the
restroom would cause Plaintiff to cross the main aisles of the factory floor and enter the path of
forklifts.” (Id.) Defendant contends Plaintiff’s restriction of avoiding activity where a sudden loss
of consciousness would expose her to harm, and the fact that her seizures may cause her to grip
things with her hands, mean she could be injured if she “spaced out” or lost consciousness in the
middle of an aisle or near a machine. (Id. at 14.)
Plaintiff has cited evidence that she can perform the essential functions of her position with
reasonable accommodations. In that regard, the uncontroverted facts do not show that Plaintiff’s
medical restrictions prohibit her from performing any essential function identified by Defendant.
See Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 593 (5th Cir. 2016) (citing
Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir.2003) (“The ADA does not require an
employer to permit an employee to perform a job function that the employee's physician has
forbidden.”). With respect to operating machinery, Plaintiff has cited evidence that her restrictions
permit her to perform this function provided the machinery is equipped with safety devices. (Doc.
41 at 3-4.) Plaintiff has cited evidence that the machinery in the two shops where she worked was
in fact already equipped with such devices. (Doc. 50-5 at 12-13.) Plaintiff’s vocational expert,
Steve Benjamin, took a tour of Defendant’s facility and observed that “all of the machines had
some types of guards.” (Doc. 50-8 at 6.) See also Doc. 50-8 at 18 (“All the machines had safety
features including foot actuators, safety buttons and cages/guards.”) In his opinion, the guards
were sufficient to accommodate someone with petit mal seizures. (Id. at 7.) This evidence, if
accepted by a jury, could support a finding that Plaintiff could perform the essential function of
operating machinery with a reasonable accommodation requiring the use of safety-guarded
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machines. Although Defendant argues in part that “adding additional protective guards to each
piece of machinery Plaintiff might be required to work on … would have been costly and
burdensome” (Doc. 45 at 13), this assertion is unavailing for two reasons. First, Plaintiff cites
evidence that the relevant machines already have adequate safety guards. Second, at this stage of
the proceedings, Plaintiff makes a prima facie case by citing evidence that a facially plausible
accommodation exists – namely, the addition of safety guards of a type already widely in use at
Defendant’s facility – that would allow her to perform the essential function of operating
machinery. Plaintiff’s showing is sufficient to meet her burden. Cf. Osborne, 798 F.3d at 1267
(employee “need only show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily
or in the run of cases.’”) (quoting US Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002)); HuntWatts v. Nassau Health Care Corp., 43 F. Supp.3d 119, 133 (E.D.N.Y. 2014) (“It is enough for
the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do
not clearly exceed its benefits.” ) (citation omitted.) That showing makes it Defendant’s burden
to “show special (typically case-specific) circumstances that demonstrate undue hardship in the
particular circumstances.” US Airways, 535 U.S. at 402. Defendant has not cited uncontroverted
evidence establishing undue hardship at this stage, meaning it is not entitled to summary judgment
on the issue.
Defendant also argues Plaintiff cannot perform the essential function of floating between
departments because of the danger of injury from a forklift if she were to have a seizure. (Doc. 45
at 13-14.) Assuming that floating between departments is in fact an essential function of Plaintiff’s
position, and that it would sometimes require Plaintiff to move about in areas where forklifts
operated, Plaintiff has nevertheless cited evidence that she can perform this function with or
without a reasonable accommodation. Plaintiff’s physician reviewed the conditions under which
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Plaintiff performed her job and imposed no medical restrictions relating to working or moving
around forklifts.
Defendant does not argue that Plaintiff is physically incapable of floating between
departments, nor does it identify a medical restriction that clearly prohibits it. Rather, Defendant
asserts that Plaintiff’s performance of the function would pose a direct threat to her own safety or
the safety of others. “Under the ADA it is a defense to a charge of discrimination if an employee
poses a direct threat to the health or safety of [herself] or others.” Justice v. Crown Cork and Seal
Co., Inc., 527 F.3d 1080, 1091 (10th Cir. 2008) (citation omitted.) See 42 U.S.C. §12113(b)
(qualification standards may require than an individual “shall not pose a direct threat to the health
or safety of other individuals in the workplace.”) A direct threat means “a significant risk to the
health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C.
§12111(3). The defense ordinarily requires the employer to show that it reasonably determined
that the employee posed a direct threat to herself – in other words, that the employer’s decision
was “objectively reasonable.” EEOC v. Beverage Distribs. Co., LLC, 780 F.3d 1018, 1021 (10th
Cir. 2015) (citing Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007)).4
The regulations implementing the ADA explain that:
The determination that an individual poses a “direct threat” shall be based on an
individualized assessment of the individual's present ability to safely perform the
essential functions of the job. This assessment shall be based on a reasonable
medical judgment that relies on the most current medical knowledge and/or on the
best available objective evidence. In determining whether an individual would pose
a direct threat, the factors to be considered include:
4
“Though the burden of showing that an employee is a direct threat typically falls on the employer, ‘where the essential
job duties necessarily implicate the safety of others, then the burden may be on the plaintiff to show that she can
perform those functions without endangering others.’” Justice, 527 F.3d at 1091 (citation omitted.) Because
Defendant has cited no evidence establishing that Plaintiff’s seizure condition posed a significant threat to other
employees, the court finds Defendant has the burden of showing that Plaintiff posed a direct threat to herself.
Defendant’s suggestions that Plaintiff might have a seizure and fall into another employee or cause a forklift driver to
swerve and hit another employee are entirely speculative and are insufficient to shift the burden to Plaintiff.
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(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
29 C.F.R. §1630.2. These factors have been summarized as “the nature, duration, severity, and
probability of the risk.” Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1277 (10th Cir.
2015).
Application of these factors to the uncontroverted facts shows Defendant is not entitled to
summary judgment. The only medical judgment in the record is that of Dr. Hassan, who after
being apprised of Plaintiff’s job conditions opined that she was able to perform the job with
restrictions including no welding and using machinery with safety devices. He expressed no
concern and imposed no restriction relating to working around forklifts. With respect to the
duration, nature, and likelihood of the risk, a jury could find that Defendant lacked objective
evidence of a significant risk to health or safety. Plaintiff cites evidence that by the time of her
termination, she had been seizure-free for nearly a month because her seizures were then being
controlled by medication. Although no evidence is cited that Defendant was made aware of this
fact, the regulations require an employer claiming a direct threat to consider the employee’s
“present ability” to perform safely based on “a reasonable medical judgment that relies on the most
current medical knowledge” or other objective evidence. 29 C.F.R. §1630.2. A reasonable jury
could find Defendant could have and should have sought a current medical opinion concerning the
effect of Plaintiff’s medication on her seizures before it terminated her. Plaintiff also cites
evidence that her seizures typically lasted only a matter of seconds and never caused her to fall.
Yet Defendant apparently assumed to the contrary without any objective medical evidence to
support its assumptions. Plaintiff further cites evidence indicating the risk of injury from a forklift
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to any of Defendant’s employees is quite low. In fact, Defendant has never had any such injury at
its facility. Defendant has “rules of the road” in place that require forklift drivers to yield to
pedestrians. Although there have been some close calls, drivers have heretofore been able to avoid
any collisions, including with employees who were not paying attention and who walked in front
of forklifts. The potential harm from a forklift-pedestrian collision could be quite severe. At the
same time, the probability of Plaintiff having a seizure that would cause her to unexpectedly stop
in the path of a forklift, while at the same time a forklift driver would fail to see her and/or fail to
yield the right-of-way or avoid a collision, could be found exceedingly low.
Other than
hypothesizing such a scenario, Defendant cites no evidence that Plaintiff’s disability creates a
significant risk of such an accident that is above and beyond the risk faced by all of Defendant’s
employees. A jury viewing all of the evidence in the light most favorable to Plaintiff could find
any probability that Plaintiff would be injured by a forklift as a result of a seizure – even though
theoretically possible – was not a significant risk. Cf. Justice, 527 F.3d at 1092 (“while the risk of
harm may be been permanent and the severity of the harm great, a reasonable jury could conclude
that the likelihood of harm was extremely small and that Justice therefore did not pose a ‘direct
threat’ to the safety of himself or others in the … plant.”) Moreover, even if the risk were found
substantial, Plaintiff has cited facially reasonable accommodations that could eliminate the
significance of the risk. For example, Plaintiff argues she could be required to take breaks at
specific times when forklifts were elsewhere, she could wear reflective clothing in aisleways to
alert forklift drivers, safety chains could be positioned to prevent accidents, or a co-worker could
accompany her on those occasions when she has to cross an area where forklifts are present. (Doc.
50 at 33.) As such, Plaintiff has cited evidence that she can perform the essential function of
floating between departments with or without reasonable accommodation.
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Defendant similarly proposes that Plaintiff’s potential for gripping things with her hands
as the result of a seizure or losing consciousness near a machine pose a direct threat to Plaintiff’s
safety or to others. (Doc. 45 at 14.) But Dr. Hassan reviewed the conditions of Plaintiff’s job and
imposed no restrictions on working with sharp objects or near machinery (except to require that
the machinery be guarded). Moreover, a jury viewing the evidence in Plaintiff’s favor could find
the probability of Plaintiff having a seizure that causes her to grip a sharp object is not only remote,
but also that such an occurrence would be unlikely to cause severe harm, such that the risk is not
significant. As for the potential of Plaintiff having a seizure near machinery, the evidence shows
Defendant’s machinery already has safety guards attached to prevent injury resulting from
employee inadvertence, and Plaintiff has cited evidence that her seizures do not put her at a
significantly heightened risk of falling into nearby machinery.
Finally, restrictions from Dr. Hassan prevented Plaintiff from welding, but Defendant does
not expressly argue – and the uncontroverted facts do not show – that welding was an essential
function of Plaintiff’s position. Rather, Defendant argues the welding restriction or the restriction
on continuous exposure to bright lights meant Plaintiff “could not be in a shop where welding
curtains do not reach the ceiling and she would be exposed to bright lights and welding arcs.”
(Doc. 59 at 11.) But Plaintiff has cited evidence that Dr. Hassan clarified that her restrictions did
not prevent her from being in the shop around welding, a fact she allegedly made known to
Defendant. Moreover, she cites evidence that protections were already in place – including shields
and welding curtains – to adequately screen her from any potentially harmful light flashes. (See
Doc. 50-8 at 1) (Benjamin testimony that welding screens completely blocked out flashes from
welding). Finally, even assuming the existing welding curtains might be inadequate to protect
Plaintiff because they did not reach all the way to the ceiling, Plaintiff has satisfied her obligation
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to make a prima facie case by identifying the facially plausible accommodation of installing or
extending welding curtains to the ceiling, something Defendant’s vocational expert identified as a
measure that would adequately protect a worker from exposure to bright lights. (Doc. 50 at 7;
Doc. 50-9 at 1.)
In sum, the court finds Plaintiff has cited evidence that she can perform the essential
functions of her position with reasonable accommodations.
2. Whether Plaintiff has shown a genuine issue for trial as to Defendant’s determination
of a direct threat. Defendant argues that its reason for terminating Plaintiff’s employment – that
is, because it determined she could not perform the essential functions of her position without
presenting a direct threat to herself and others – is a legitimate, non-discriminatory reason, and
that Plaintiff has failed to cite evidence that it was a pretext for unlawful discrimination. (Doc. 45
at 15-18.) In response, Plaintiff argues that a pretext analysis is unnecessary because Defendant
has conceded that her disability was the reason for the termination. (Doc. 50 at 22) (citing
Osborne, 798 F.3d at 1266, n.6) (noting that if an employer admits that the disability played a
prominent part in its decision, the standard burden-shifting framework may be unnecessary).
Rather, Plaintiff argues that Defendant’s determination that she was a direct threat to herself or
others was not objectively reasonable. (Doc. 50 at 23.) Among other things, Plaintiff asserts that
Defendant’s determination was not based on appropriate factors or evidence, was contrary to the
available medical evidence, and failed to consider whether reasonable accommodations would
allow her to perform the job without the asserted danger. (Id. at 27-33.) As Plaintiff argues, the
“direct threat” defense turns upon whether its use by an employer is objectively reasonable. See
Bragdon v. Abbott, 524 U.S. 624, 650 (1998) (courts should assess the direct threat defense under
an “objective reasonableness” standard). Regardless of whether Defendant’s determination is
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analyzed in terms of pretext or objective reasonableness, however, the court finds for the reasons
discussed herein that a genuine issue of material fact exists and precludes summary judgment.
A plaintiff can show pretext by demonstrating that the proffered reason is false or that
discrimination was a primary factor in the determination. This may be done by pointing to
“weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered reason, such that a reasonable fact finder could deem the employer’s reason unworthy
of credence.” Aubrey, 2020 WL 5583649, at *14 (citation omitted.) By contrast, under Jarvis and
similar cases, “the fact finder’s role is to determine whether the employer’s decision [that the
employee posed a direct threat] was objectively reasonable.” Jarvis, 500 F.3d at 1222. Objective
reasonableness is not satisfied merely because an employer acted upon a good-faith belief. Id.
Objective reasonableness may require the employer to obtain professional advice or other
objective evidence. Id. at 1123 (noting 29 C.F.R. §1630.2(r) requires an assessment based on
reasonable medical judgment).
It also requires an individualized assessment rather than a
judgment based upon predetermined or unfounded general stereotypes. Id. (citing Den Hartog v.
Wasatch Acad., 129 F.3d 1076, 1090 (10th Cir. 1997)).
Plaintiff has cited evidence to show a genuine issue of fact under either standard. The
uncontroverted facts show that Defendant’s decision to terminate Plaintiff’s employment was
lacking in objective justification and could be found unworthy of credence. For example, the
decision was based in part on input from Harris, the first shift superintendent who thought Plaintiff
was a danger “because of sharp objects all the way around.” (Doc. 50 at 14.) That was apparently
based on Harris’s belief that Plaintiff was apt to fall if she had a seizure. Harris and Hamel
discussed that if Plaintiff had a seizure she “could go down on a piece of metal.” (Id.) If so, the
belief was lacking objective justification, as there was no evidence that Plaintiff had fallen or was
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likely to fall as a result of a seizure. According to the uncontroverted evidence, Plaintiff’s seizures
usually involved a short lapse in concentration and had never resulted in a fall. A jury could
conclude that Harris’s opinion was not based on individualized consideration of Plaintiff’s
disability, but was based on unfounded assumptions about persons who have seizures. Harris does
not remember if he knew anything about whether Plaintiff fell when she had seizures or the
duration, frequency, or likelihood of her seizures, and testified that he and Hamel did not discuss
the likelihood of Plaintiff having a seizure.
Hamel’s proffered explanation of the danger was similarly premised on beliefs or
suppositions lacking objective support. Hamel’s opinion was based in part on a belief that if
Plaintiff had a seizure “she would become unstable [and] she could fall into a piece of equipment.”
(Id. at 15.) Again, the danger of falling was not included in any medical opinion and Plaintiff
specifically informed Hamel she did not fall as a result of her seizures. According to Harris and
Hamel, they were concerned about the danger of Plaintiff having a seizure while working with or
around machinery, but a jury could conclude that they failed to take into account the available
medical evidence on that issue. Dr. Hassan indicated Plaintiff could safely work with machinery
as long as it had safety devices built in, as Defendant’s machinery did. Hamel’s determination
was also based in part on an erroneous and unfounded assumption about the length of Plaintiff’s
seizures.
He assumed, based solely on Plaintiff’s comment about not remembering the
circumstances of her first seizure, that her seizures lasted “a few minutes.” (Id.at 11-12.) But
Hamel never sought or obtained any information about the length of seizures from Plaintiff’s
doctor. Plaintiff informed Hamel that her seizures usually lasted only a matter of seconds, and
there is evidence Plaintiff never had a seizure last more than 60 seconds. Another person involved
in the termination decision, CEO Ohm, testified there was no discussion about the likelihood of
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Plaintiff being injured as the result of a seizure. None of the decisionmakers apparently considered
the frequency or likelihood of Plaintiff having a seizure or sought input from Plaintiff’s doctor on
those issues. Yet Plaintiff cites evidence that her seizures had largely been controlled by
medication by the time of her termination. Cf. 29 C.F.R. § 1630.2 (“This assessment shall be
based on a reasonable medical judgment that relies on the most current medical knowledge and/or
on the best available objective evidence.”) Plaintiff also cites evidence from which a jury could
conclude that Defendant applied a “blanket rule” that did not take into account Plaintiff’s actual
condition. (See Doc. 50-5 at 8, 19) (Hamel’s testimony indicating his belief that no one with a
seizure condition could work safely in the shop regardless of the length of the seizures).
Hamel also testified Plaintiff’s termination was based on the danger from Plaintiff crossing
in front of forklifts and working around welding lights. Yet Hamel did not mention either of these
asserted dangers at the time of Plaintiff’s termination. A reasonable finder of fact could infer that
they were likely after-the-fact rationalizations on Defendant’s part. Moreover, the asserted danger
of working around forklifts and welding flashes was not based on any medical input from
Plaintiff’s doctor or from an individualized assessment of Plaintiff’s condition. Dr. Hassan
specifically reviewed Plaintiff’s working conditions but placed no restrictions relating to forklifts
and opined that Plaintiff could be around welding as long as she was not the one welding. Plaintiff
cites evidence that she informed Hamel that Dr. Hassan said she could work in the shop where
welding occurred. Hamel was aware that he could seek input or clarification from the doctor but
did not do so. There is also evidence from which a jury could find that the decisionmakers did not
consider various accommodations concerning forklifts or welding flashes that might have rendered
any risk to Plaintiff or others insignificant. Of course, because Defendant did not inform Plaintiff
of these asserted concerns before it terminated her employment, she had no opportunity to request
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any such accommodations. Plaintiff has now identified facially plausible accommodations that
would minimize or eliminate the asserted risks from forklifts and welding lights, thereby placing
the burden on Defendant to show undue hardship.
Defendant’s decision to terminate Plaintiff’s employment may have been based on a goodfaith belief that Plaintiff faced a significant risk of harm from working on the shop floor. But a
reasonable jury viewing the evidence and all inferences in Plaintiff’s favor might conclude that
Defendant’s invocation of the risk of harm is lacking in objective justification and is not worthy
of credence. Cf. Justice, 527 F.3d at 1089 (“Crown argues that Justice's medical restrictions
precluded him from working as an electrician because, under its version of the facts, the Worland
plant was full of obstacles such as unprotected heights and hazardous machinery. While this may
be true, there is contrary evidence in the record from which a finder of fact could conclude that
these hazards were imagined or exaggerated, and that Crown's purported reliance on Justice's
medical restrictions was a pretext masking Crown's irrational fears about Justice's condition.”)
IV. Conclusion
Defendant’s motion for summary judgment (Doc. 44) is DENIED. IT IS SO ORDERED
this 15th day of October, 2020.
_____s/ John W. Broomes__________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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