Tapia v. McCarthy
Filing
33
MEMORANDUM OPINION AND ORDER by District Judge Matthew L. Garcia GRANTING 20 MOTION for Summary Judgment. See Order for specifics. (cmm) Modified on 6/26/2023 (emr).
Case 2:20-cv-00721-MLG-GJF Document 33 Filed 06/26/23 Page 1 of 15
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________
PETER C. TAPIA,
Plaintiff,
Case No. 2:20-cv-00721-MLG-GJF
v.
CHRISTINE WORMUTH,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant Christine Wormuth’s Motion for
Summary Judgment (“Motion”), filed on October 8, 2021. Doc. 20. Plaintiff Peter C. Tapia
responded in opposition (Doc. 22), to which Wormuth replied. Doc. 24. Having reviewed the
parties’ submissions and the applicable law, the Court grants the Motion.
BACKGROUND
Plaintiff Peter C. Tapia 1 was employed by the United States Army as an automotive worker
at White Sands Missile Range (WSMR). 2 Doc. 20 at 2. As a general matter, automotive workers
1
Tapia was employed by the Army as a civilian worker. Doc. 20-2 at 2:13:8-9. See 42 U.S.C. §
12112(b)(5)(A) (defining “discrimination” to include the failure to make “reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee”) (emphasis added); Jordan v. Choa, 2006 U.S.
Dist. LEXIS 82561, at *10 (S.D. Cal. Nov. 8, 2006) (noting that “uniformed military personnel
cannot bring claims under the Rehabilitation Act”).
2
Tapia’s proposed clarifications and denials to Wormuth’s statement of undisputed facts fall well
short of what the Federal Rules of Civil Procedure require. See Doc. 22 at 1-6. Rule 56 provides
that a party asserting that a fact is genuinely disputed must support the assertion by either citing to
particular parts of the record or showing that the materials cited establish the presence of a genuine
dispute. See also D.N.M.LR-Civ. 56.1(b) (explaining that “[e]ach fact in dispute must . . . refer
with particularity to those portions of the record upon which the non-movant relies” and that “[a]ll
material facts set forth in the Memorandum will be deemed undisputed unless specifically
1
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are expected to be able to service any vehicle that comes into the shop, some of which weigh up
to five tons. Id. As commonsense would suggest, larger vehicles have correspondingly bigger and
heavier parts than passenger vehicles. Id. Some of the more sizeable vehicles could be equipped
with wheels as tall as four feet. Id. However, it was quite rare for Tapia to work on these larger
vehicles. Id. Instead, he mostly maintained and repaired combustion-powered automotive vehicles
including cars, trucks, and light combat vehicles. Id. Some of his specific duties included
removing, inspecting, and replacing defective parts and changing oil. Id.
As part of their qualifications, Army automotive workers must be capable of lifting,
handling, and carrying objects weighing up to forty pounds. This requirement is spelled out in the
job description:
PHYSICAL EFFORT: Make repairs while the vehicle is overhead, and where the
parts worked on are in hard to reach places. A requirement to stand[,] stoop, bend,
stretch and work in tiring and uncomfortable positions is of a frequent nature.
Frequent lifting, handling and carrying of parts and equipment weighing up to 40
lbs and occasional lifting of items that weigh 50 lbs is present.
Doc. 20-3 at 2. And although Tapia rarely had to lift at least fifty pounds while on the job, it was
not uncommon for him to lift tires weighing approximately thirty pounds. Doc. 20 at 3. He also
utilized tools weighing twenty to thirty pounds such as jack stands and impact wrenches. Id.
At some point before July 13, 2015, Tapia sustained a back injury while repairing a large
tractor tire. Id. He notified his (temporary) supervisor, Richard Camacho, of the injury and
provided Camacho with medical documentation from a doctor who detailed Tapia’s restrictions
controverted”). Tapia has failed to comply with these procedural rules. Where he has clarified or
denied stated facts, his proposals are either unsupported by citations to the record, immaterial or
misleading. See, e.g., Doc. 22 at 3 (disputing the purpose of the scrap yard, which is immaterial to
the underlying failure-to-accommodate claim). As a consequence, pursuant to Rule 56(e), the
Court disregards his proposed clarifications and denials and considers the following facts, largely
taken from the Motion, as undisputed for the purposes of considering the Motion.
2
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on lifting, bending, and lying on the ground. Id. at 3-4. Camacho determined that, because Tapia’s
role required him to frequently lift, bend and stand for long periods of time in awkward positions,
it would be difficult for him to continue doing the essential functions of his job. Id. at 4. As a result,
Camacho temporarily modified Tapia’s duties from those typical of an automotive worker to light
duty tasks such as inventorying and picking up parts at the tool room. Id.; Doc. 20-2 at 8:45:1923. However, even on light duty, Tapia required assistance with loading and unloading parts to
and from his work truck. Doc. 20 at 4.
On September 16, 2015, Dr. Ronald Ross, from the McAfee Army Health Clinic, evaluated
Tapia’s “work capabilities as compared to his job requirements.” Id. Dr. Ross issued a letter
summarizing his evaluation of Tapia’s work limitations and recommended, inter alia, a lifting
restriction of fifteen pounds. Doc. 20-5 at 1. Dr. Ross further determined that Tapia could not “lift
at all except in limited controlled situations” and that Tapia also could not “lift weights above his
head or lift weight from the floor up.” Id. Dr. Ross indicated that Tapia “appears to be capable of
sedentary occupations with limited walking and accommodation to his physical limitations.” Id. at
2.
In September 2015, Tapia—without having requested any specific accommodation—met
with Allen Crooks (Camacho’s supervisor) to discuss reasonable duty adjustments. Doc. 20 at 3,
5. Crooks stated that, because Tapia “brought in doctors’ notes [advising that] he could not lift
more than 15 pounds, he could not stand for a long period of time, he could not bend, he could not
stoop,” and “all of those [actions] are required to do his job as a wheel mechanic,” he directed
Camacho to restrict Tapia’s duties to “light” work that would not violate his profile. Doc. 20-6 at
2:117:8-21. Thereafter, around October 2015 or November 2015, Tapia, Camacho and Crooks met
with Johnny Pippen (the Equal Employment Opportunity Manager) to further discuss the
3
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reasonable accommodation process. Doc. 20-7 at 2:108:15-3:109:16. At this meeting, Pippen
instructed Camacho and Crooks not to assign duties to Tapia that would violate his profile. Id. He
also instructed them to look for another position within the organization for Tapia. Id.
On December 21, 2015, Enrique Lopez (Tapia’s counsel) sent a letter to Pippen outlining
Tapia’s specific accommodation request, namely, to eliminate lifting of heavy objects from his
duties. Doc. 20-8. Tapia’s goal was to be placed back in the position of automotive worker (i.e., to
be taken out of the tool room) but to only serve on light duty. Doc. 20-2 at 11:84:1-4; 11:85:1-6;
12:89:21-25. He requested an accommodation that would “eliminat[e] lifting heavy items;
eliminate the use of ladders and/or stairs; [allow him] to use power tools; [and avoid prolonged
periods in an adverse position while using] shop furniture such as creepers and rolling chair[s.]”
Doc. 20-8 at 1. In support of this request, Lopez attached a letter from Dr. Ross dated
December 1, 2015. Id. at 2. Dr. Ross’s correspondence addressed the duties Tapia could perform
along with the corresponding accommodations that would be required to perform those tasks:
Employee is generally able to work on small trailers, ATV and small pickup trucks.
He can perform such tasks as changing bearings[,] [r]e-wiring, change [sic] oil and
other fluids, [and] lubricate [sic]. For these tasks he needs the accommodation of
use of power tools and shop furniture such as creepers and rolling chair to avoid
prolonged periods in adverse positions. There is no restriction on A level
maintenance activities with accommodation to limitations in lifting and mobility.
Since he cannot generally lift heavy weights, use ladders or many flights of stairs
the work needs to be arranged to avoid these tasks.
Id. 3
The Army was apparently unable to reassign Tapia to a vacant position given these work
limitations. Tapia asked James Gallegos (supervisor of the supply warehouse) whether there was
3
Tapia stated that the sole accommodation he required was to eliminate lifting heavy objects from
his duties. Doc. 20-2 at 10:72:4-20. He stated that “the only reason [he felt] like [he] wasn’t
accommodated is because [his position description] says [he is] to lift 50 pounds or more and [he
was] not able to.” Doc. 20-1 at 13:26:21-23.
4
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an open position at the supply warehouse involving light duty work. Doc. 20-2 at 12:86:2-87:22.
Gallegos purportedly responded that there was a vacant position but that he was waiting on Crooks
to approve the transfer, which never occurred. Id. at 12:88:1-10. However, Tapia could not recall
specific details about the alleged vacancy, such as the position title or when exactly these verbal
conversations with Gallegos took place. Id. at 12:88:11-19. Nor could Tapia recall whether there
were any existing vacancies at the base for which he qualified or, if there were, whether he had
formally applied to them. Id. at 13:97:3-8. Neither Camacho nor Crooks were able to locate an
internal, vacant position for Tapia that would not violate his work limitations. Doc. 20-4 at 5:69:1115; Doc. 20-6 at 3:123:10-12. A human resource specialist conducted a search of internal, vacant,
and soon-to-be vacant job postings, but was similarly unable to locate an open position for Tapia
given his work limitations. Doc. 20-9 at 2:135:8-16.
In July 2016, Tapia was medically cleared to return to his job—albeit with a lifting
restriction of twenty pounds. Doc. 20-2 at 8:44:6-45-5. Five months later, Tapia retired on medical
disability. Id. at 14:103:20-104:3.
On July 20, 2020, Tapia filed a complaint against Defendant Ryan D. McCarthy, the thenSecretary of the Department of the Army, alleging disability discrimination (for the alleged failure
to accommodate), hostile work environment, and retaliation and reprisal. Doc. 1 at 5-6. McCarthy
answered and asserted that: Tapia was not a qualified individual and could not perform the
essential functions of his position with or without a reasonable accommodation; Tapia’s requested
accommodation would pose an undue hardship on McCarty; and the requested accommodation
was not otherwise reasonable. Doc. 6 at 6-7. Tapia then filed a motion for leave to amend his
complaint, which the Court granted. See Docs. 17, 26. This amended pleading pared down his suit
removing the hostile work environment and retaliation and reprisal claims. See Doc. 17 at 1.
5
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Tapia’s sole remaining cause of action is for disability discrimination, specifically, the Army’s
failure to accommodate. See Doc. 29 at 5. On October 8, 2021, Wormuth moved for summary
judgment. Doc. 20.
OPINION
I.
Legal standard
A party is entitled to summary judgment if 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). “[T]he moving
party bears the initial burden of presenting evidence to show the absence of a genuine issue of
material fact.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). The
moving party may do so “either by producing affirmative evidence negating an essential element
of the nonmoving party’s claim, or by showing that the nonmoving party does not have enough
evidence to carry its burden of persuasion at trial.” Id. Once this burden is met, the non-moving
party then sets forth specific facts showing there is a genuine issue for trial. Id.
Summary judgment may not be avoided by mere disagreement with factual contentions
that are supported with competent evidence. That is
a party must (a) cite to specific parts of the record—including deposition testimony,
documentary evidence, affidavits or declarations, or other competent evidence—in
support of its position, or (b) demonstrate that the materials relied upon by the
opposing party do not actually establish the absence or presence of a genuine
dispute.
Congress v. Gruenberg, 2022 U.S. Dist. LEXIS 216276, at *15-16 (D.D.C. Dec. 1, 2022).
“Conclusory allegations made by a non-movant will not suffice.” United States v. Simons, 129
F.3d 1386, 1388 (10th Cir. 1997). And where “a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact as required by Rule 56(c),” the Court
may “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
6
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II.
Analysis
The Rehabilitation Act of 1973 4 prohibits covered entities—which includes the
Department of the Army—from discriminating against a qualified individual on the basis of
disability. 29 U.S.C. § 794. To achieve this objective, covered entities are required to make
reasonable accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability. 42 U.S.C. § 12112(b)(5)(A). The remedies include injunctive relief,
see Barnes v. Gorman, 536 U.S. 181, 187 (2002), and compensatory damages. See Franklin v.
Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76 (1992).
Here, Tapia’s lone claim for relief asserts that the Army failed to accommodate his
disability as required by the Rehabilitation Act. To prove up the viability of his claim, Tapia must
demonstrate the following: (1) he was disabled; (2) he was otherwise qualified; (3) he requested a
plausibly reasonable accommodation; and (4) the employer refused to accommodate his disability.
See Aubrey v. Koppes, 975 F.3d 995, 1005 (10th Cir. 2020). If Wormuth can conclusively rebut at
least one of these elements or establish an affirmative defense, summary judgment in her favor is
appropriate. Id. If, however, Tapia establishes a genuine dispute of material fact or presents
evidence establishing a genuine dispute regarding the affirmative defense(s), then summary
judgment is inappropriate. Id. Because the parties do not dispute that Tapia was disabled within
the meaning of the statute or that the Army refused to accommodate Tapia’s disability, Doc. 20 at
9; Doc. 22 at 8, the Court limits its discussion to whether Tapia was otherwise qualified and
whether he requested a plausibly reasonable accommodation.
4
The same standards apply under the Rehabilitation Act, 29 U.S.C. § 794(d), as under the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12111. For this reason, the Court cites to
both Acts, as well as regulations pertaining to and case law interpreting those statutes. See
Woodman v. Runyon, 132 F.3d 1330, 1339 n.8 (10th Cir. 1997).
7
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A.
The Court concludes that Tapia was not otherwise qualified.
In the context of the Rehabilitation Act, the term “‘qualified individual’ means an
individual who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). In
determining whether a person is a “qualified individual” the Tenth Circuit applies the following
two-step inquiry:
First, the court determines whether the individual can perform the essential
functions of the job. Second, if (but only if) the court concludes that the individual
is unable to perform the essential functions of the job, the court determines whether
any reasonable accommodation by the employer would enable [her] to perform
those functions.
Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1267 (10th Cir. 2015). At each step, “[t]he
plaintiff bears the burden of showing she is able to perform the essential functions of her job.”
Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004).
i.
Lifting, handling, and carrying objects weighing up to forty pounds is an essential
function of the automotive worker position.
“Courts require an employer to come forward with evidence concerning whether a job
requirement is an essential function.” Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 889
(10th Cir. 2015); see also Mason, 357 F.3d at 1119 (explaining that the initial burden rests on the
employer to describe the job and the functions required to do that job). “The term essential
functions means the fundamental job duties of the employment position the individual with a
disability holds or desires.” 29 C.F.R. § 1630.2(n)(1) (2012). Relevant considerations for assessing
whether a particular function is an essential one include “(i) [t]he employer’s judgment as to which
functions are essential; (ii) [w]ritten job descriptions prepared before advertising or interviewing
applicants for the job; (iii) [t]he amount of time spent on the job performing the function”; and/or
“(iv) [t]he consequences of not requiring the incumbent to perform the function,” among other
8
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factors. Id. § 1630.2(n)(3)(i)-(iv). In evaluating these factors, courts place “considerable weight on
an employer’s judgment concerning a particular job’s ‘essential’ functions.” Hawkins, 778 F.3d at
888. So long as “any necessary job specification is job-related, uniformly enforced, and consistent
with business necessity, the employer has a right to establish what a job is and what is required to
perform it.” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003). Once the
employer has made this showing, the burden shifts to the employee “to dispute that evidence or
otherwise show that the function . . . is nonessential.” Kilcrease v. Domenico Transp. Co., 828
F.3d 1214, 1222 (10th Cir. 2016).
With this legal authority as a guide, the Court begins by considering the employer’s
judgment as to which functions are essential. See § 1630.2(n)(3)(i). First, lifting parts and
equipment appears to be a crucial function because, as witness testimony indicates, lifting heavy
parts and equipment is “a function that [Tapia] has to do daily.” Doc. 20-4 at 4:64:19-25. Second,
the Court looks to the relevant position description to ascertain the essential functions of the job.
See § 1630.2(n)(3)(ii). In this case, the automotive worker job posting states that employees are
expected to frequently lift, handle, and carry parts and equipment “weighing up to 40 lbs and
occasional[ly] . . . 50 lbs.” Doc. 20-3. Third, the Court looks to the amount of time spent on the
job performing the function. See § 1630.2(n)(3)(iii). Again, deposition testimony directly
addresses the matter: automotive workers are expected to lift heavy parts and equipment daily. See
Doc. 20-4 at 4:64:19-25.
Moreover, there are considerable consequences if the Army were to remove the lifting
requirement from the automotive worker job—that is, it would fundamentally alter the position.
See § 1630.2(n)(3)(iv); see also Davidson, 337 F.3d at 1191. Without that requirement, automotive
workers might not physically be able to work on larger, five-ton vehicles with their
9
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correspondingly larger and heavier parts that (although rare 5) come through the shop. This issue
is compounded when considering that automotive workers are expected to be able to work on any
Army vehicle. Finally, there are safety concerns—both for the mechanic and the individual who
eventually drives the combat vehicle—that explain the need for a lifting requirement. See Doc. 207 at 3:109:17-25 (Pippen’s deposition testimony) (“[T]he ramifications of [violating an employee’s
medical restrictions] could be devastating . . . a lot of harm could be caused to the employee . . .
[and] we can still be . . . liable for any and all damages[.]”); cf. Tate v. Farmland Indus., Inc., 268
F.3d 989, 995-96 (10th Cir. 2001) (holding that the plaintiff, because he was required to take
medication to control seizures, could not meet the necessary job-related physical requirements to
perform as a commercial vehicle operator). Thus, the Court finds that the essential functions of an
automotive worker include the ability to lift, handle, and carry objects weighing up to forty pounds.
Tapia nevertheless avers that the lifting of heavy objects does not constitute a core job
function. Doc. 22 at 14. The problem is that Tapia offers nothing to substantiate his claim saying
only (and without citation to the record) that “[h]eavy lifting was not an essential job function of
a maintenance mechanic.” Id. Moreover, Tapia’s contentions are inconsistent with his deposition
testimony, where he conceded that the job required frequent lifting, that he was obligated to carry
parts and equipment, that he would carry tools weighing twenty to thirty pounds, and that he would
sometimes have to lift or carry thirty-pound tires in the course of his work. Doc. 20-2 at 6:30:1123; 6:31:25-32:10. Tapia has failed to sufficiently dispute the evidence or otherwise show that
5
The Court notes that, as a general matter, the term “essential functions” does not include the
marginal functions of the positions. § 1630.2(n). However, essential functions encompass even
those duties that are performed only rarely if the potential consequences of the inability to perform
that function are sufficiently severe. See, e.g., Hennagir v. Utah Dept. of Corr., 587 F.3d 1255,
1258-59 (10th Cir. 2009) (holding that “when the potential consequences of employing an
individual who is unable to perform the function are sufficiently severe, such a function may be
deemed essential” even if it is “rarely required in the normal course of an employee’s duties”).
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lifting heavy objects is nonessential.
Ultimately, the requirement to lift, handle, and carry objects weighing up to forty pounds
appears to be “job-related, uniformly enforced, and consistent with business necessity.” See
Davidson, 337 F.3d at 1191. The Army has a right to establish what is required to perform the role
of an automotive worker. See id. It is not the Court’s role to second guess that expertise or require
the Army to lower its standards of quality with respect to its general equipment maintenance. See
id. Based on the foregoing, the Court is left to conclude that the essential functions of the Army
automotive worker include lifting, handling, and carrying objects weighing up to forty pounds.
ii.
Tapia was unable to perform this essential function.
Because the Court finds that lifting, handling, and carrying items weighing up to forty
pounds is an essential function of the automotive worker position and because it is undisputed that
Tapia was restricted from lifting objects weighing more than fifteen to twenty pounds, see Doc.
20 at 4-7, see also Doc. 22 at 3-6, it follows that Tapia was unable to perform an essential function
of his job.
iii.
There were no reasonable accommodations that would enable Tapia to perform as an
automotive worker.
Having determined that Tapia could not perform an essential function of the automotive
worker position, the Court must assess whether there were any reasonable accommodations that
would enable Tapia to perform that function. See Osborne, 798 F.3d at 1267. The Tenth Circuit
utilizes the following burden-shifting framework to analyze the issue: “(1) the plaintiff has the
initial burden to show an accommodation is reasonable on its face, then (2) the defendant must
show it cannot provide the accommodation without undue hardship, and finally (3) the plaintiff
must rebut the employer’s evidence based on her individual capabilities.” Id. at 1269. A reasonable
accommodation may include “making existing facilities used by employees readily accessible to
11
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and usable by individuals with disabilities” or “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.” 42 U.S.C. § 12111(9)(A)-(B).
By contrast, “[a] proposed accommodation is not reasonable on its face if it would not
enable the employee to perform the essential function at issue.” Osborne, 798 F.3d at 1267.
Likewise, a reasonable accommodation does not include modifying or reallocating essential
functions of an existing position. See Mason, 357 F.3d at 1122-23. If the employee presents a
facially reasonable accommodation, then the burden shifts to the employer to present evidence of
its inability to accommodate. Osborne, 798 F.3d at 1267. Once the employer makes this showing,
then the burden shifts back to the employee to rebut the employer’s evidence based on her
individual capabilities. Id. at 1268.
Wormuth argues that there were no reasonable accommodations that would allow Tapia to
perform the essential function. Doc. 20 at 12-15. Namely, Tapia requested to be exempt from
heavy lifting altogether which does not constitute a reasonable accommodation. Id. at 13.
Predictably, Tapia disagrees and claims that he was wrongly denied reasonable accommodations—
despite his admission that he could still perform the essential functions of his role even with the
lifting restriction. Doc. 22 at 13-14, 17.
The Court concludes that Tapia has failed to overcome his initial burden. His requested
accommodation would relieve him from performing the essential function of lifting, handling, and
carrying items weighing up to forty pounds. Accordingly, the Army was not required to provide
this accommodation. Nor was the Army required to modify or reallocate the function, as Tapia
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seems to suggest when he asserts that “[t]here are plenty of employees that love to work on heavier
vehicle [sic].” Doc. 22 at 5. Because he has failed to show that his requested accommodation was
reasonable on its face, there is no need to continue with the burden shifting framework. See
Osborne, 798 F.3d at 1269. Wormuth has conclusively rebutted the second element of Tapia’s
failure-to-accommodate claim and, in turn, Tapia has failed to rehabilitate that element. Therefore,
summary judgment in her favor is warranted.
B.
The Court concludes that Tapia did not request a plausibly reasonable
accommodation.
There is considerable overlap between the preceding discussion of “reasonable
accommodations” and this third element of “plausibly reasonable accommodations.” As stated
earlier, “an employee’s request to be relieved from an essential function of her position is not, as
a matter of law, a reasonable or even plausible accommodation.” Mason, 357 F.3d at 1122.
Likewise, employers are not required to modify an essential function of an existing position or
reallocate the essential functions of the job in order to accommodate a disabled employee. Id. at
1123.
Wormuth avers that, because the Army was not required to eliminate essential job functions
of the automotive worker position, Tapia’s request that heavy lifting be eliminated from his job
duties was not a plausibly reasonable accommodation. Doc. 20 at 15. Tapia disagrees but the
specifics of his argument are difficult to follow. As the Court understands it, Tapia asserts that he
was “medically cleared to return to his job” albeit with a lifting restriction of twenty pounds, which
Wormuth could not accommodate. Doc. 22 at 18. However, he fails to specify the nature of his
accommodation request or provide any details that would support his argument. Id. In her reply,
Wormuth maintains her position that, because there is no genuine issue of material fact as to
whether Tapia requested a plausibly reasonable accommodation for the lifting restriction,
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summary judgment in her favor is warranted. Doc. 24 at 11-12.
The Court agrees with Wormuth and finds that Tapia has not put forward evidence to
demonstrate the existence of a reasonable accommodation. As discussed in the foregoing sections,
an essential function of an automotive worker is to frequently lift, handle, and carry objects
weighing up to forty pounds. The undisputed facts demonstrate that Tapia was initially medically
cleared to lift up to fifteen pounds which was then improved to twenty pounds (Doc. 22 at 3, 6)
and that he requested an accommodation that would “eliminate lifting heavy objects” (i.e., objects
weighing more than twenty pounds) from his role. Id. at 5. But it was not plausibly reasonable for
the Army to relieve Tapia from performing an essential function of his job: lifting items weighing
up to forty pounds. See Mason, 357 F.3d at 1122-23. Nor was it plausibly reasonable for the Army
to modify (e.g., to lower the required weight lifting threshold for the position) or reallocate (e.g.,
to shift the heavy lifting to other employees) this essential function. See id. Therefore, the Court
concludes that Wormuth has conclusively rebutted Tapia’s assertion that he requested plausibly
reasonable accommodations and, in turn, Tapia has failed to rehabilitate this element. Summary
judgment in Wormuth’s favor is thus warranted.
C.
Failure-to-Reassign
Lastly, Tapia makes a passing reference to the Army’s failure to reassign him to another
position within the organization. Doc. 22 at 12. The Court does not interpret this reference as an
attempt to make out a prima-facie claim of failure to accommodate by offering reassignment to a
vacant position. See generally Doc. 29 (amended complaint). See Smith v. Midland Brake, Inc., a
Div. of Echlin, Inc., 180 F.3d 1154, 1178-79 (10th Cir. 1999) (describing the elements of such a
claim including a showing that “[t]he employee was qualified, with or without reasonable
accommodation, to perform one or more appropriate vacant jobs within the company that the
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employee must, at the time of the summary judgment proceeding, specifically identify and show
were available within the company at or about the time the request for reassignment was made”)
(emphasis added).
Even assuming arguendo that Tapia made an initial showing of the requisite elements,
Wormuth has conclusively rebutted at least one necessary element: Tapia failed to specifically
identify any existing vacant positions that were available when he purportedly requested
reassignment. See Doc. 20 at 7. Tapia admits that he “could not recall what the title of the [vacant]
position was, whether it was a formal vacancy, [] when the conversations with the supply
warehouse supervisor occurred” or “identify any existing vacant positions for which he was
qualified and could not recall applying to any such positions.” Doc. 22 at 5-6. Thus, to the extent
that Tapia posits a failure-to-reassign claim, Wormuth has conclusively rebutted an essential
element of that claim by demonstrating that Tapia was unable to specifically identify and show
whether there were any existing vacant positions within the company at or about the time the
request for reassignment was made. See Smith, 180 F.3d at 1179.
CONCLUSION
For the foregoing reasons, the Court holds that summary judgment in Wormuth’s favor is
warranted. The Court grants the Motion. Doc. 20.
It is hereby ordered that summary judgment is entered in favor of Wormuth. Tapia’s
failure-to-accommodate claim is hereby dismissed with prejudice. The Court shall issue a Rule 58
judgment separately. It is so ordered.
MATTHEW L. GARCIA
UNITED STATES DISTRICT JUDGE
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