Wickware v. Manville

Filing 48

ORDER granting 31 Motion for Summary Judgment (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VERNELL WICKWARE, JR.,
Plaintiff,
v.
JOHNS MANVILLE,
Defendant.

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Case No. CIV-13-424-D

ORDER
Before the Court is Defendant’s Motion for Summary Judgment [Doc. No. 31], filed
pursuant to Fed. R. Civ. P. 56. Plaintiff has timely opposed the Motion, which is fully
briefed and at issue.
Plaintiff is a current employee of Defendant who suffered an on-the-job injury to his
knee that required surgical treatment in 2010, and resulted in permanent work restrictions.
He brings suit under the Americans with Disabilities Act of 1990, as amended by the ADA
Amendments Act of 2008, 42 U.S.C. § 12101 et seq. (collectively, the “ADA”), to recover
damages for alleged discrimination and retaliation. The Complaint alleges that Defendant
failed to select Plaintiff for an available position in 2011 based on his disability, failed to
provide a reasonable accommodation and demoted him to a lower-paid position in 2012
because of his disability, and subjected him to retaliatory discipline after he filed an EEOC
charge of discrimination.
Defendant seeks a judgment as a matter of law on all claims asserted in the Complaint.
In Plaintiff’s response, he concedes that any claim related to his non-selection for a position

in 2011 is procedurally barred due to his failure to file a timely EEOC charge. See Pl.’s
Resp. Br. [Doc. No. 40] at 17, n.2.1 Thus, the only claims presented for decision are a claim
of discrimination based on Defendant’s alleged failure to accommodate Plaintiff’s disability
resulting in a demotion, and a retaliation claim.
Standard of Decision
Summary judgment is proper “if the movant shows there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A material fact is one that “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
genuine if the evidence is such that a reasonable jury could return a verdict for either party.
Id. at 255. All facts and reasonable inferences must be viewed in the light most favorable
to the nonmoving party. Id. If a party who would bear the burden of proof at trial lacks
evidence on an essential element of a claim, then all other factual issues concerning the claim
become immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. Celotex, 477 U.S. at 322-23. If the movant
carries this burden, the nonmovant must then go beyond the pleadings and “set forth specific
facts” that would be admissible in evidence and that show a genuine issue for trial. See
Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144
1

Plaintiff also states that he has decided to abandon a “regarded as disabled” claim asserted in the
Complaint, which simply alleged that Defendant treated Plaintiff as being more severely disabled than he
actually was. See Pl.’s Resp. Br. [Doc. No. 40] at 22, n.3.
2

F.3d 664, 671 (10th Cir. 1998). “To accomplish this, the facts must be identified by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Adler, 144 F.3d at 671; see also Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only
the cited materials, but may consider other materials in the record.” See Fed. R. Civ.
P. 56(c)(3); see also Adler, 144 F.3d at 672. The Court’s inquiry is whether the facts and
evidence identified by the parties present “a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52.
Undisputed Facts 2
Defendant operates a manufacturing plant in Oklahoma City that makes commercial
roofing materials. During the relevant time period, Defendant had written personnel policies
regarding ADA compliance, equal employment opportunity, and anti-retaliation. The plant
had a human resources manager from 2010 through late 2012 named Jim Shantz.
In February, 2011, John Dodi became manager of the Oklahoma City plant. At that
time, the plant was utilizing a pay program entitled OKC Plant Pay for Skills Plan 2010,
which was a system for determining how covered employees would be paid. Mr. Dodi began
making changes to this program that were intended to make it easier to administer and more

2

This statement includes material facts presented by both parties that are supported as required by
Fed. R. Civ. P. 56(c)(1) or otherwise shown by the record. If a party has asserted a fact, or asserted that a fact
is disputed, but has failed to provide necessary support, the assertion is disregarded. All facts are stated in
the light most favorable to Plaintiff.
3

like a program used at other facilities. Under the amended program, an employee’s pay
would be based on the number of positions that the employee could perform.
As relevant to the claims in this case, Plaintiff has a physical disability related to the
condition of his knees that restricts his ability to work and to perform activities such as
walking. When Mr. Dodi became plant manager, Plaintiff had been working in a light duty
assignment as a forklift operator and relief supervisor. His work restrictions on file stated
that he could drive a forklift but that he was limited to medium work (lifting up to 50 pounds
occasionally) and only occasional squatting, kneeling, crawling or climbing. In May, 2011,
Mr. Dodi presented, and Plaintiff signed, a restricted duty compliance agreement by which
Plaintiff agreed not to exceed these work restrictions.
In July, 2011, the Oklahoma City plant officially began the new 2011 Pay for Skills
Program. Management evaluated each employee subject to the program to see where each
would be placed. The program provided for a transition period for employees who needed
additional time to learn the skills needed to qualify and perform the number of positions that
would enable them to retain the same level of pay they had earned under the prior program.
The design, timing, and application of the 2011 Pay for Skills Program was a business
decision focused on determining the pay rates of covered employees based on their number
of skill positions and providing similar compensation to employees at different facilities.
The decision was unrelated to Plaintiff or his employment situation.
The 2011 Pay for Skills Program required a relief foreman to be “[q]ualified in all
lower operator levels.” See Def.’s Mot. Summ. J., Ex. 12 [Doc. No. 31-12] at 3 (ECF
4

numbering). In the context in which it appears, the phrase “lower operator levels” appears
to refer to five pay levels for operators (the highest of which required an ability to perform
all five production operator positions – mat tender, coater, forklift, winder, and robot) and
two relief operator positions (denominated as back end relief and front end relief). The
parties disagree about the meaning of the requirement that a relief foreman be qualified in
all lower operator levels. Defendant’s position is that a relief foreman needed to be capable
of performing all operator positions.
At Mr. Dodi’s request, Plaintiff completed a self-evaluation in late July, 2011, in
which Plaintiff assessed his ability to meet the job standards of all operator positions and
identified particular standards for which an accommodation would be needed.3 Mr. Dodi met
with Plaintiff in August, 2011, to discuss the evaluation and to clarify particular comments
that Plaintiff had made regarding his limitations. A memo summarizing the discussion at the
meeting was prepared, and signed by Mr. Dodi and Plaintiff on September 6, 2011. During
this time period, Plaintiff held the title of relief foreman.
Defendant subsequently hired a professional engineer, Dennis Seal, Ph.D., to conduct
an ergonomic assessment of the jobs that Plaintiff was qualified to perform, including all five
operator positions and the relief operator positions. On September 23, 2011, Dr. Seal visited
the plant and observed employees performing the job tasks of each position in order to assess

3

Plaintiff questions why Mr. Dodi asked him to perform this evaluation because Plaintiff had been
evaluated at each position when he returned to work from his injury in early 2011. Mr. Dodi has testified that
the evaluation was not part of the 2011 Pay for Skills Program but was intended to help determine Plaintiff’s
work restrictions and what job accommodations were needed.
5

the physical requirements and ergonomic criteria. Plaintiff was not present during the visit,
and Dr. Seal never met with Plaintiff. Dr. Seal prepared a report dated October 31, 2011, that
contained a chart comparing the job task requirements he determined, the medical restrictions
on file for Plaintiff, and Plaintiff’s self-reported restrictions. Dr. Seal stated a conclusion that
he “found all required functions to be within safe working limits with respect to weight and
force, repetitions, squatting, kneeling or crawling while performing the expected job
functions.” See Def.’s Mot. Summ. J., Ex. 21 [Doc. No. 31-21] at 2.
Mr. Dodi read the report to mean that Plaintiff was able to perform all job tasks
without violating his restrictions. When Mr. Dodi met with Plaintiff to share the ergonomic
assessment, Plaintiff disagreed with certain aspects of Dr. Seal’s report and with Mr. Dodi’s
position that Plaintiff could safely do all job tasks.4 Based on Plaintiff’s insistence that he
could not do certain tasks, Defendant placed Plaintiff on paid leave while he obtained
updated medical information.
On January 18, 2012, Plaintiff presented a handwritten note from his physician,
Dr. Limbaugh, stating that Plaintiff was unable to squat repetitively, lift greater than
20 pounds, or stand for prolonged periods.5 Mr. Dodi stated that he did not understand these
restrictions and needed more information. Plaintiff disagreed that additional information was
4

In his summary judgment brief, Plaintiff notes that certain physical limitations, such as squatting
or lifting more than 50 pounds, are noted in Dr. Seals’ report as required in certain positions but discounted
as “occasional” or “infrequent.”
5

On January 20, 2012, a physician completed a “Request for Medical Information for Reasonable
Accommodation” form supplied by Mr. Shantz, indicating that Plaintiff could not do all the essential
functions of the job as outlined in the job description because of limitations on squatting and lifting. See
Def.’s Mot. Summ. J., Ex. 23 [Doc. No. 31-23]. It is unclear what job or jobs were under consideration.
6

needed, but he obtained another physician’s evaluation. On January 25, 2012, Dr. Gannaway
completed a form provided by Defendant entitled “Work Capabilities,” on which he checked
“never” for climbing ladders and squatting; “occasional” for standing, walking, lifting up to
50 pounds, pushing/pulling up to 50 pounds, and climbing stairs; and “frequent” for sitting
and operating motorized vehicles. See Def.’s Mot. Summ. J., Ex. 24 [Doc. No. 31-24].
Dr. Gannaway also noted as additional requirements that Plaintiff needed to avoid pivoting,
loading, twisting, and pushing and twisting.
On January 31, 2012, Plaintiff met with Mr. Shantz. They reviewed the job tasks of
each position and updated Plaintiff’s self-evaluation as summarized in the memo of his
August 25, 2011 meeting with Mr. Dodi. Mr. Shantz’s update to the prior memo stated for
each position either “No changes” or “Above is still accurate,” but included Plaintiff’s
comments regarding particular tasks. See Def.’s Mot. Summ. J., Ex. 25 [Doc. No. 31-25].
Mr. Dodi, Mr. Shantz and Plaintiff met on February 13, 2012, and Plaintiff was informed that
he would be paid as a level one operator because he could only perform the job duties of a
forklift operator. Plaintiff disagreed and suggested job changes that would permit him to do
other operator positions and, specifically, the duties of a coater operator. The meeting
adjourned until the following day, when Plaintiff was informed that he would be classified
as a level two operator due to his ability to perform the forklift and coater jobs. During this
process, Mr. Dodi and Mr. Shantz did not attempt to identify the essential functions of the
other operator positions, but focused on the tasks that were identified as problematic.

7

Unlike the operator positions, there was no job description for the position of relief
foreman that contained a list of job tasks and standards. Defendant instead relies on the 2011
Pay for Skills Program and the affidavit of Mr. Dodi. In addition to stating that a relief
foreman must be qualified in all operator levels, the 2011 Pay for Skills Program stated that
a relief foreman was responsible for overall operations when the foreman was not present and
assisted the foreman with “cycle counts, production paperwork and scheduling.” See Def.’s
Mot. Summ. J., Ex. 12 [Doc. No. 31-12] at 3. Mr. Dodi states that to qualify for the position
of relief foreman under the 2011 Pay for Skills Program, “an employee must be qualified and
able to perform all production operator positions.” See Dodi Aff. [Doc. No. 31-2], ¶ 16.
Mr. Dodi describes the job of a relief foreman as follows:
The Relief Foreman is a working lead position. In general, the Relief Foreman
works in one of the operator positions and also performs the duties of the
Foreman when the Foreman is not present. The Relief Foreman’s value is in
a great part due to his or her ability to be skilled and able to work in all of the
positions.
Id. ¶ 17.
Plaintiff testified that it had not been Defendant’s practice to require a relief foreman
to be able to perform all operator positions and that other employees served as relief foreman
even though they were not qualified to perform all operator positions. One person identified
by Plaintiff, Scott Henderson, was employed as a foreman in 2011. The position of foreman
did not require an ability to perform all operator positions. Plaintiff also presents statements
of Mr. Henderson and a coworker, Monte Jeffries, that an employee named Richard Lyons
worked in the position of relief foreman and they do not believe he was qualified to perform
8

the job of a coater operator.6 Mr. Dodi states that “Richard Lyons was qualified on all
operator positions when he was classified as a Relief Foreman under the 2011 Pay for Skills
Program.” Id. ¶ 22.
On May 22, 2012, Plaintiff filed an EEOC charge alleging that Defendant engaged
in disability discrimination on February 24, 2012, when it demoted Plaintiff from relief
supervisor to forklift operator.7 Shortly after filing the EEOC charge, Plaintiff complained
to Mr. Shantz on June 14, 2012, that he was being subjected to retaliatory harassment by
Mr. Dodi. Plaintiff retained an attorney before the EEOC process was complete, at least by
November 9, 2012. On January 17, 2013, Plaintiff informed the EEOC investigator during
a telephone call that he wanted to amend the charge to include a retaliation claim. The
investigator advised Plaintiff that he needed to provide a statement or affidavit regarding the
claim within 10 days. On January 31, 2013, the EEOC investigator recommended dismissal
of the charge because he found no reasonable cause to believe an ADA violation had
occurred and Plaintiff had failed to provide any additional evidence as of that date. The

6

The statement of another person employed as a foreman, Chris Islas, is disregarded because he
would not be permitted to testify at trial. Plaintiff did not timely identify Mr. Islas as a potential witness, and
has not asked to amend his final witness list to add Mr. Islas. Also, Mr. Jeffries’ statement that he “know[s]”
Mr. Henderson was not qualified to be a coater operator is disregarded because Mr. Jeffries does not state any
fact that would establish his personal knowledge of or competence to testify about Mr. Lyons’ qualifications.
See Pl.’s Resp. Br., Ex. 6 [Doc. No. 40-6], ¶ 3. An affidavit used to oppose a summary judgment motion
“must be made on personal knowledge” and show the affiant “is competent to testify on the matters stated.”
See Fed. R. Civ. P. 56(c)(4).
7

Defendant states the EEOC charge was filed on May 20, 2012. Its exhibit shows that Plaintiff
signed the document on that date, but it was received by the EEOC’s Oklahoma City area office on May 22,
2012. See Def.’s Mot. Summ. J., Ex. 33 [Doc. No. 31-33]. As pertinent here, “the charge is deemed to be
filed with the Commission upon receipt of the document.” See 29 C.F.R. § 1601.13(a)(4)(ii)(A).
9

EEOC issued a dismissal notice regarding the discrimination charge on January 31, 2013.
On that same date, Plaintiff faxed to the EEOC office an amended charge that included both
discrimination and retaliation claims. The record shows no action by the EEOC regarding
the document. Plaintiff filed suit within 90 days after receiving the EEOC’s dismissal notice.
Discussion
A.

ADA Retaliation Claim
“Exhaustion of administrative remedies under the Americans with Disabilities Act . . .

is a jurisdictional prerequisite to suit in the Tenth Circuit.” McBride v. CITGO Petroleum
Corp., 281 F.3d 1099, 1105 (10th Cir. 2002). In this case, Plaintiff claims he was subjected
to retaliation for asserting a claim of disability discrimination in that he received harsher
discipline than other employees after he filed an EEOC charge. Plaintiff did not, however,
file an administrative complaint alleging retaliation, unless the amended charge received by
the EEOC on the same day it dismissed his original charge is sufficient.8 Thus, a preliminary
question regarding Plaintiff’s retaliation claim is whether the Court has jurisdiction to
consider it.9
“[B]ecause failure to exhaust administrative remedies is a bar to subject matter
jurisdiction, the burden is on the plaintiff as the party seeking federal jurisdiction to show,

8

Under current law, “federal courts lack jurisdiction over incidents occurring after the filing of an
EEOC claim unless the plaintiff files a new EEOC claim or otherwise amends her original EEOC claim to
add the new incidents.” Eisenhour v. Weber County, 744 F.3d 1220, 1227 (10th Cir. 2014).
9

The Court is obliged to address jurisdiction as a threshold matter, before reaching the merits of a
plaintiff’s claim. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998).
10

by competent evidence, that [he] did exhaust.” McBride, 281 F.3d at 1106. Plaintiff has
responded to Defendant’s Motion on the issue of exhaustion by making the following factual
statements in his brief without any citation to the record: “Wickware amended his charge
prior to the Notice of Rights being issued. The EEOC would not have filed the Amended
Charge had a Notice of Rights already been issued.” See Pl.’s Resp. Br. [Doc. No. 40] at 16.
Plaintiff also argues in his brief that the EEOC’s premature issuance of a right-to-sue notice
within the 180-day period for investigation does not preclude the filing of suit. See id. at 28
(citing Hall v. FlightSafety Int’l, Inc., 106 F. Supp. 2d 1171, 1182 (D. Kan. 2000)); see also
Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1274 (10th Cir. 2001). Because the 180day period following Plaintiff’s original charge had expired when the EEOC issued its
dismissal notice, this argument assumes that Plaintiff filed an amended charge before the
dismissal.10
Plaintiff provides no factual support for his bare assertion that the amended charge
containing his new retaliation claim was filed before the EEOC issued its dismissal notice.
Plaintiff instead appears to assume that the amended charge was timely because it bears a
“RECEIVED” stamp dated the same day as the dismissal notice. See Def.’s Mot. Summ. J.,
Ex. 42 [Doc. No. 31-42]. However, Plaintiff has not disputed the stated fact, supported by
10

This argument also assumes that a new 180-day period would begin to run upon an amendment.
Federal regulations provide that an amended charge “alleging additional acts . . . related to or growing out
of the subject matter of the original charge will relate back to the date the [original] charge was first
received.” See 29 C.F.R. § 1601.12(b). Courts have held, however, that an amendment that advances a new
theory of recovery is not “related to” the original claim and does not relate back. See Simms v. Okla. ex rel.
Dep’t of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir. 1999) (retaliation charge
added by amendment did not relate back to original discrimination charge), abrogated on other grounds by
Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003).
11

the exhibit, that the amended charge was faxed to the EEOC’s local area office. A facsimile
transmission is not an acceptable means of filing a charge. See 29 C.F.R. § 1601.8 (“A
charge may be made in person or by mail at any office of the Commission or with any
designated representative of the Commission.”). Plaintiff provides no authority for his
implicit contention that the amended EEOC charge was properly filed by fax.
Further, Plaintiff’s position that the amended charge was timely filed before the
dismissal is inconsistent with the record showing that the EEOC took no action after
receiving it. The EEOC did not provide notice of the amended charge to Defendant, as
required by law. See 29 C.F.R. § 1601.14(a). The EEOC could not have fulfilled its duty
to investigate an amended charge (see id. § 1601.15(a)) or issued a dismissal on the grounds
stated in the notice sent to Plaintiff, that is, that the EEOC had made a determination
regarding the merits of his claim “[b]ased upon its investigation.” See Def.’s Mot. Summ. J.,
Ex. 41 [Doc. No. 31-41]. In short, Plaintiff has presented no facts from which to conclude
that he filed an administrative complaint regarding his retaliation claim.
For these reasons, the Court finds that it lacks subject matter jurisdiction to decide the
merits of Plaintiff’s ADA claim of retaliation. Because the Court lacks jurisdiction, the
Court will order the dismissal of Plaintiff’s retaliation claim. See Shikles v. Sprint/United
Management Co., 426 F.3d 1304, 1318 (10th Cir. 2005) (court should dismiss for lack of
jurisdiction rather than enter summary judgment on an unexhausted claim).

12

B.

ADA Discrimination Claim
The ADA prohibits employment discrimination on the basis of disability against a

qualified employee, that is, “an individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position that [he] holds or desires.”
Id. § 12111(8). By definition, an employer discriminates on the basis of disability by “not
making reasonable accommodations to the known physical or mental limitations of an
otherwise qualified . . . employee, unless [the employer] can demonstrate that the
accommodation would impose an undue hardship on the operation of [its] business.” Id.
§ 12112(b)(5)(A).
Defendant contends Plaintiff cannot succeed on a claim that it failed to accommodate
his disability or demoted him based on his disability because he cannot establish that he was
qualified to perform the essential functions of the position of relief foreman. Defendant
asserts that Plaintiff cannot show there was a reasonable accommodation that would have
permitted him to perform the essential functions of the position. Defendant also contends
Plaintiff cannot show that he was demoted to an operator position based on his disability
because he cannot establish that Defendant’s legitimate, nondiscriminatory reasons for its
decision were a pretext for discrimination.
To establish a prima facie case of disability discrimination under the ADA, a plaintiff
must demonstrate that he (1) is “a disabled person as defined by the ADA; (2) is qualified,
with or without reasonable accommodation, to perform the essential functions of the job held
or desired; and 3) suffered discrimination by an employer . . . because of that disability.” See
13

EEOC v. Picture People, Inc., 684 F.3d 981, 985 (10th Cir. 2012); Carter v. Pathfinder
Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011). Defendant does not dispute for
summary judgment purposes that Plaintiff was an individual with a disability as defined by
42 U.S.C. § 12102(2).
Qualified for the Position of Relief Foreman
Plaintiff contends he can satisfy this element of his claim because an ability to
perform all operator positions was not an essential function of the relief foreman position
and, alternatively, he was able to perform all operator jobs with reasonable accommodation.
1.

Essential Functions

“The plaintiff bears the burden of showing [he] is able to perform the essential
functions of [his] job.” Mason v. Avaya Commc’n, Inc., 357 F.3d 1114, 1119 (10th Cir.
2004). The ADA does not define the concept of “essential functions” but mandates that
“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 essential
functions of the job.” See 42 U.S.C. § 12111(8). An implementing regulation contains a
general definition: “The term essential functions means the fundamental job duties of the
employment position the individual with a disability holds or desires.” See 29 C.F.R.
§ 1630.2(n)(1). The regulation also identifies appropriate evidence to be considered:
(3) Evidence of whether a particular function is essential includes, but is not
limited to:

14

(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.
Id. § 1630.2(n)(3).
“Determining whether a particular function is essential is a factual inquiry.” Davidson
v. Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003). “The question of whether a job
requirement is a necessary requisite to employment [in a position] initially focuses on
whether an employer actually requires all employees in the particular position to satisfy the
alleged job-related requirement.” Id.; see Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255,
1262 (10th Cir. 2009). “Provided that 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.” Picture People, Inc., 684 F.3d at
986 (quoting Hennagir, 587 F.3d at 1262) (internal quotations omitted).11
Upon consideration of the facts and evidence presented, the Court finds that Plaintiff
has failed to demonstrate a genuine dispute of material fact bearing on the issue of whether

11

Although the parties approach the issue of whether Plaintiff was a qualified individual in terms
of his ability to perform an “essential function” of the position of relief foreman, the Court notes that the issue
could also be analyzed in terms of whether Plaintiff met a necessary job-related requirement of the position
under the 2011 Pay for Skills Program. See 29 C.F.R. § 1630.2(m) (“The term ‘qualified,’ with respect to
an individual with a disability, means that the individual satisfies the requisite skill, experience, education
and other job-related requirements of the employment position such individual holds or desires and, with or
without reasonable accommodation, can perform the essential functions of such position.”).
15

an ability to perform all operator positions was an “essential function” of the position of
relief foreman. First, what Defendant’s practice might have been before adopting the 2011
Pay for Skills Program is irrelevant. “The ADA does not limit an employer’s ability to
establish or change the content, nature, or functions of a job.” Hennagir, 587 F.3d at 1262
(internal quotation omitted). Second, the written document outlining the program and the
plant manager’s testimony make clear that a job requirement of the position of relief foreman
was that the employee be qualified in all operator levels, and a level five position required
“qualification on and operation of all five operator positions.” See Def.’s Mot. Summ. J.,
Ex. 12 [Doc. No. 31-12] at 3. Mr. Dodi explains why Defendant deemed this requirement
necessary under the 2011 Pay for Skills Program: “a great part” of the value of a relief
foreman was “his or her ability to be skilled and able to work in all of the positions.” See
Dodi Aff., ¶ 17.
Plaintiff’s attempt to show that Defendant did not uniformly enforce this requirement
of the 2011 Pay for Skills Program is ineffectual. Plaintiff argues that “the only other Relief
Foreman, Mr. Richard Lyons, was not qualified or capable of performing all of the operator
positions.”12 Plaintiff’s only factual support for his argument is affidavit testimony of a
foreman, Mr. Henderson, and a coworker, Mr. Jeffries, that they do not believe Mr. Lyons

12

Plaintiff also points out that the position of relief foreman has remained vacant for several months
and that the requirement does not apply to the position of foreman. These facts do not show that Defendant
has inconsistently applied the requirements of the relief foreman position. Instead, Plaintiff’s argument is
that these facts show that Defendant’s requirement for the relief foreman position “makes little sense.” See
Pl.’s Resp. Br. [Doc. No. 40] at 20. However, “the essential function inquiry is not intended to second guess
the employer or to require the employer to lower company standards.” Mason, 357 F.3d at 1119 (internal
quotation omitted).
16

was qualified to perform the job of a coater operator. Mr. Henderson’s stated basis for this
belief is that Mr. Lyons “did not know how to run that machine.” See Henderson Aff. [Doc.
No. 40-4], ¶ 6. Mr. Henderson provides no temporal or factual context for this conclusion.13
Mr. Jeffries provides no factual basis for his belief that Mr. Lyons was not qualified to work
as a coater operator. Thus, the Court finds that Plaintiff has failed to present proposed
testimony that would be admissible at trial. See, e.g., Zokari v. Gates, 561 F.3d 1076, 1089
(10th Cir. 2009) (coworker’s testimony was properly excluded where the witness did not
provide sufficient information to establish his personal knowledge of relevant matters). The
Court further finds that the personal beliefs of these witnesses are insufficient to counter the
affidavit testimony of Mr. Dodi, based on his personal knowledge and his review of company
records as Defendant’s records custodian (see Dodi Aff. [Doc. No. 31-2], ¶ 1), that
Mr. Lyons was qualified in all operator positions when he was classified as a relief foreman
under the 2011 Pay for Skills Program.
For these reasons, the Court finds that Plaintiff has failed to come forward with
sufficient facts or evidence to show that he met Defendant’s requirement to be classified as
a relief foreman under the 2011 Pay for Skills Program.

13

Mr. Henderson states that he began work as a foreman in 2011 and worked in quality control and
maintenance before resigning in 2014. Concerning Mr. Lyons, Mr. Henderson states only that “I am aware
that Richard Lyons was a Relief Supervisor, and I do not believe that he was qualified as a Coater Operator
because he did not know how to run that machine.” See Henderson Aff. [Doc. No. 40-4], ¶ 6.
17

2.

Reasonable Accommodation

Turning to Plaintiff’s second means of demonstrating he was qualified for the position
of relief foreman, the question is whether Plaintiff has presented sufficient facts to establish
he was able to perform the essential functions of all operator jobs with reasonable
accommodation.
On this issue, Plaintiff simply argues, in a conclusory fashion, that he could have
performed the essential functions of these jobs if Defendant had provided reasonable
accommodations. Plaintiff’s factual support for this argument is his testimony that he had
worked in all of the operator jobs (with accommodation) since his return to work from his
knee injury, and his 2011 self-evaluation purporting to show “there were only a few, minor
things that [Plaintiff] needed help with among the pages of duties set out in the job
description.” See Pl.’s Resp. Br. [Doc. No. 40] at 21. This argument necessarily assumes
there was no change in Plaintiff’s work restrictions between the time of his return to work
and self-evaluation in 2011 and the time of Defendant’s classification decision in 2012.
The record does not support this assumption. Plaintiff’s 2012 medical restrictions (no
squatting or climbing ladders; occasional standing, walking, lifting up to 50 pounds,
pushing/pulling up to 50 pounds, and climbing stairs; avoid pivoting, loading, twisting, or
pushing and twisting) are significantly different from his 2011 medical restrictions
(occasionally lifting up to 50 pounds, squatting, kneeling, crawling or climbing). More
importantly, Plaintiff overlooks the 2012 update to the 2011 self-evaluation, which purports
to reflect no change in Plaintiff’s capabilities but reflects greater concerns. The 2012 update,
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for example, stated regarding the operator position of mat attendant that “[m]ost of this job
is outside his current restrictions.” See Def.’s Mot. Summ. J., Ex. 25 [Doc. No. 31-25] at 2.
Plaintiff also contends Dr. Seal’s report shows that the tasks identified by Plaintiff as
requiring assistance were not essential functions of the operator jobs because they “were only
occasionally done.” See Pl.’s Resp. Br. [Doc. No. 40] at 21. However, a job function may
be “essential” even though it is done infrequently. See, e.g., Hennagir, 587 F.3d at 1263
(training certification was essential for corrections department employees with direct inmate
contact, even though medical personnel had never been required to employ that training).
Further, Dr. Seals’ report compares the job task requirements of the operator positions with
Plaintiff’s 2011 restrictions, not his 2012 restrictions.
Finally, Plaintiff bears the initial burden to identify an accommodation that “appears
reasonable on its face” and that would have enabled him to perform the essential functions
of the operator jobs. See Mason, 357 F.3d at 1122; see also Hennagir, 587 F.3d at 1264 &
1265 n.3 (limiting review to the accommodations proposed by the plaintiff). The only
accommodation identified in Plaintiff’s argument is Defendant’s assignment of other
employees, such as persons working in relief operator positions, to perform certain tasks or
assigning infrequent tasks to a group of employees.

However, the purpose of an

accommodation is to enable an employee to perform the desired job; “‘an employer is not
required to accommodate a disabled worker by modifying or eliminating an essential function
of the job.’” See Hennagir, 587 F.3d at 1264 (quoting Mathews v. Denver Post, 263 F.3d
1164, 1168-69 (10th Cir. 2001)). “[I]t is unreasonable to expect Employer to reallocate
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specific job duties . . . in order to accommodate” an employee who is unable to perform those
duties. Picture People, Inc., 684 F.3d at 991. Thus, reassigning tasks that Plaintiff could not
do by himself or eliminating an assigned task from a position is not a facially reasonable
accommodation.
Plaintiff has failed to satisfy his obligation under Rule 56 to set forth specific facts
that show a genuine issue for trial on the question of whether he was qualified with
reasonable accommodation to satisfy the job requirements of a relief foreman in 2012.
Therefore, because Plaintiff lacks sufficient evidence to establish an essential element of an
ADA claim of discrimination, Defendant is entitled to summary judgment on this claim.
Conclusion
For these reasons, Defendant is entitled to a judgment as a matter of law on Plaintiff’s
discrimination claims and to dismissal of his retaliation claim for lack of subject matter
jurisdiction.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment
[Doc. No. 31] is GRANTED. Judgment will be entered accordingly.
IT IS SO ORDERED this 7th day of November, 2014.

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