Flores v. Albertsons

Filing 16

MEMORANDUM DECISION AND ORDER granting 9 Motion for Summary Judgment. Signed by Judge David Nuffer on 12/13/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
RAFAEL FLORES,

v.

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
[9] MOTION FOR SUMMARY
JUDGMENT

ALBERTSONS, LLC,

Case No. 2:17-cv-1321-DN

Plaintiff,

Defendant.

Judge David Nuffer

Plaintiff Rafael Flores (“Mr. Flores”) filed this action against Defendant Albertsons, LLC
(“Albertsons”), alleging that Albertsons discriminated against him, in violation of the Americans
with Disability Act of 1990 (“ADA”). 1 Albertsons has moved for summary judgment on Mr.
Flores’s discrimination claim, asserting that (1) Mr. Flores was not qualified to perform the
essential functions of his job; and (2) Mr. Flores was not subjected to an adverse employment
action. 2 Mr. Flores filed an opposition. 3 Albertsons replied. 4
Because Mr. Flores has failed to establish a prima facie case of disability discrimination
under the ADA, Albertsons’s Motion for Summary Judgment is granted.

1

Plaintiff’s Complaint, docket no. 2, filed Dec. 29, 2017.

2

Defendant’s Motion for Summary Judgment and Memorandum in Support at 1 (“Motion for Summary
Judgment”), docket no. 9, filed July 26, 2018; Appendix of Exhibits for Defendant’s Motion for Summary Judgment
and Memorandum in Support (“Appendix to Motion”), docket no. 10, filed July 26, 2018.
3

Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment (“Opposition”), docket no.
11, filed Aug. 23, 2018.
4

Reply Memorandum in Support of Defendant’s Motion for Summary Judgment (“Reply”), docket no. 14, filed
Sept. 6, 2018.

Contents
Statement of Undisputed Facts ....................................................................................................... 2
Summary Judgment Standard ......................................................................................................... 7
Discussion ....................................................................................................................................... 8
Mr. Flores is not qualified to perform an essential function of his job ............................... 8
Mr. Flores was not subjected to an adverse employment action ...................................... 11
Order………. ................................................................................................................................ 13
STATEMENT OF UNDISPUTED FACTS 5
1.

Mr. Flores is an employee of Albertsons. 6

2.

In March 1996, Mr. Flores was hired “to work in [Albertsons’s] Warehouse in the

Salt Lake City Area.” 7
3.

During his deposition, Mr. Flores agreed that he is a Warehouse Worker at the

Salt Lake City Distribution Center. 8
4.

Warehouse Workers are given various assignments such as fork lift driver,

receiver, selector, and pallet-jack operator. 9
5.

During his employment, Mr. Flores received assignments as a selector and fork

lift driver. 10

5

The following Statement of Undisputed Facts is taken from the facts asserted in the parties’ briefing. All material
facts asserted by the parties for which no dispute was raised or supported are considered undisputed for purposes of
summary judgment. FED. R. CIV. P. 56(e)(2).

6

Motion for Summary Judgment ¶ 1 at 1; Opposition ¶ 1 at v. See also Appendix to Motion, Ex. A, Deposition of
Rafael Flores (“Flores Depo”), 53:10–17, 85:14–23, docket no. 10–1, filed July 26, 2018.

7

Plaintiff’s Complaint ¶ 9. See also Motion for Summary Judgment ¶ 2 at 1; Opposition ¶ 2 at vi; Flores Depo.,
42:18-22.

8

Flores Depo., 71:17–19; see also id. 42:20-22.

9

Motion for Summary Judgment ¶ 5 at 1; Appendix, Ex. B, Declaration of Travis Parke ¶ 5, docket no. 10-2. See
also Flores Depo. 43:16-18.
10

Motion for Summary Judgment ¶ 6 at 2; Flores Depo., 18:23-19:8, 43:76:15-24; 78:9-12.

2

6.

On March 9, 2014, 11 Mr. Flores suffered injuries, including injuries to his arm, in

a non-work related automobile accident. 12
7.

Due to these injuries, Mr. Flores took a leave of absence from work to recover. 13

8.

Mr. Flores’s last day of work for Albertsons was March 5, 2014. 14

9.

Mr. Flores requested and was granted leave under the Family and Medical Leave

Act (“FMLA”). 15 This leave started March 9, 2014 and continued through June 7, 2014. 16
10.

On July 16, 2014, Albertsons’s Human Resources Manager, Mr. Parke, contacted

Mr. Flores and discussed Mr. Flores’s current FMLA leave and employment status. Mr. Parke
told Mr. Flores that he would be sending him a letter, requesting documentation from Mr.
Flores’s doctor. 17
11.

Mr. Flores was approved for short-term disability benefits from March 9, 2014

through September 6, 2014. 18
12.

Under Albertsons’s current leave policies, employees are entitled to 12 weeks of

leave within a 12-month period. 19 As of September 7, 2014, Mr. Flores had reached the
maximum allowable benefit period under Albertsons’s Short-Term Disability Program. At this
point, Mr. Flores went on Long-Term Disability. 20

11

Plaintiff’s Complaint ¶ 18.

12

Motion for Summary Judgment ¶ 7 at 2; Opposition ¶ 7 at x. See also Flores Depo., 19:9–18.

13

Motion for Summary Judgment ¶ 8 at 2; Opposition ¶ 8 at x. See also Flores Depo., 71:22–24.

14

Motion for Summary Judgment ¶ 9 at 2; Opposition ¶ 9 at xi. See also Flores Depo., 71:20–21.

15

Id.

16

Motion for Summary Judgment ¶ 10 at 2. Opposition ¶ 10 at xi. See also Appendix, Ex. D, FMLA Approval
Letter, docket no. 10-4, filed July 26, 2018.

17

Motion for Summary Judgment ¶ 13 at 2; Opposition ¶ 13 at xii.

18

Motion for Summary Judgment ¶ 14 at 3; Opposition ¶ 14 at xii.

19

Opposition, Ex. 2, FMLA Paperwork, docket no. 11-2.

20

Motion for Summary Judgment ¶ 15 at 3; Opposition ¶ 15 at xiii.

3

13.

On August 13, 2014, Mr. Flores’s doctor, Dr. Walker, completed a Fitness for

Duty Certification that stated Mr. Flores could not return to even modified work due to his
severe right arm disability.
14.

21

During his time on leave, Mr. Flores spoke with several of his friends who are

also employed at Albertsons. 22
15.

Mr. Flores’s friends provided him with various forms of gossip relating to Mr.

Flores’s assignment, and one friend even asked if Mr. Flores would give his assignment to him. 23
16.

Mr. Parke addressed these concerns with Mr. Flores, reminding him that job

assignments were not handled that way. 24
17.

Mr. Flores knew that his friends were not speaking on behalf of Albertsons. 25

18.

Mr. Flores admits that Albertsons directly contradicted what his friends had told

19.

On September 12, 2014, Mr. Flores provided Albertsons a document entitled

him. 26

“Physical/Occupational/Work Conditioning Therapy Prescription and Letter of Medical
Necessity” from Dr. Walker of Granger Orthopedics, identifying the areas that needed
improvement and the frequency of Mr. Flores’s sessions. 27

21

Motion for Summary Judgment ¶ 16 at 3; Opposition ¶ 16 at xiii.

22

Motion for Summary Judgment ¶ 17 at 3; Opposition ¶ 17 at xiii–xiv.

23

Motion for Summary Judgment ¶ 18 at 3; Opposition ¶ 18 at xiv.

24

Motion for Summary Judgment ¶ 19 at 3; Opposition ¶ 19 at xiv.

25

Motion for Summary Judgment ¶ 20 at 3; Opposition ¶ 21 at xiv–xv.

26

Motion for Summary Judgment ¶ 21 at 3; Opposition ¶ 22 at xv. See also Flores Depo., 21:20–22:2.

27

Motion for Summary Judgment ¶ 22 at 4; Opposition ¶ 23 at xvi.

4

20.

At that time, Mr. Flores informed Mr. Parke that he told his doctor he could return

to work on October 6, 3014. 28 Mr. Parke told Mr. Flores that if he intended to return to work, he
would need to provide a doctor’s authorization to return to work noting any restrictions. 29
21.

On September 15, 2014, Mr. Parke sent Dr. Walker a Fitness for Duty

Certification to complete, and attached the job description for a Warehouse Worker. 30 The job
description for a Warehouse Worker included a section on “skills, physical requirements and
working conditions” 31 that encompassed all of the assignments a Warehouse Worker may be
asked to perform. 32
22.

Dr. Walker completed the certification form and returned it to Mr. Parke. 33

23.

In the certification form, Dr. Walker indicated that Mr. Flores could return to

work with no restrictions. 34
24.

Albertsons requires all newly hired employees and Warehouse Workers, who

have been away from their positions for more than six months, to take a Physical Abilities Test
prior to starting work. 35

28

Motion for Summary Judgment ¶ 24 at 4; Opposition ¶ 24 at xvi.

29

Id.

30

Motion for Summary Judgment ¶ 25 at 4; Opposition ¶ 25 at xvi.

31

Appendix, Ex. C, Warehouse Worker Job Description, docket no. 10-3, filed July 26, 2018.

32

Id.; Flores Depo., 37:8-39:16, 40:7-10.

33

Motion for Summary Judgment ¶ 26 at 4; Opposition ¶ 26 at xvi.

34

Motion for Summary Judgment ¶ 27 at 4; Opposition ¶ 27 at xvii.

35

Motion for Summary Judgment ¶ 28 at 4; Appendix, Ex. B, Declaration of Travis Parke ¶ 10, docket no. 10-2;
Opposition ¶ 28 at xvii. Mr. Flores alleges that only Warehouse Workers performing the assignments of a selector
may be required to pass this test. However, Mr. Flores has failed to provide any evidence that this allegation is based
upon anything beyond his own personal opinion. FED. R. CIV. P. 56(c)(1). Accordingly, Mr. Flores has failed to
dispute this fact. Furthermore, the parties do not dispute that the Warehouse Worker job description, which includes
physical requirements, applies to Mr. Flores’ position. During Mr. Flores’ deposition, he also admitted that “[h]e
was required to successfully pass a physical abilities test before returning to work” and that he did not pass the test.
Flores depo., 71:14-72:17.

5

25.

Albertsons requires this test to ensure Warehouse Workers can safely perform

their job duties and the minimum requirement for passing the test is a score of 100%. 36
26.

Because Mr. Flores has been away from his job for 28 weeks (more than 6

months), he was required to take the Physical Abilities Test prior to returning to work. 37
27.

On September 19, 2014, Mr. Flores took the Physical Abilities Test and did not

pass with 100%. 38
28.

Mr. Flores continues to be able to retake the Physical Abilities Test. 39

29.

Mr. Flores informed Mr. Parke that he could not perform all of the duties under

all of the assignments for Warehouse Workers—specifically, those of a selector. 40 However, Mr.
Flores has not provided Albertsons with a doctor’s note stating that he is physically incapable of
performing the duties of a selector assignment. 41
30.

Mr. Flores has never informed Albertsons that he is able to return to work as a

Warehouse Worker. 42
31.

If Mr. Flores returns to work, he will be given a job assignment based on his

medical restrictions or lack thereof, the current needs of the warehouse, and other factors, such as
seniority, performance, ability, and attitude. 43

36

Motion for Summary Judgment ¶ 29 at 4; Opposition ¶ 29 at xviii.

37

Motion for Summary Judgment ¶ 30 at 5; Opposition ¶ 30 at xviii.

38

Motion for Summary Judgment ¶ 31 at 5; Opposition ¶ 31 at xix–xx. See also Opposition, Ex. 3, Fitness for Duty
Certification, docket no. 11-3, filed Aug. 23, 2018.
39

Motion for Summary Judgment ¶ 32 at 5; Opposition ¶ 32 at xx.

40

Motion for Summary Judgment ¶ 33 at 5; Opposition ¶ 33 at xxi.

41

Flores Depo., 33:21-35:23.

42

Motion for Summary Judgment ¶ 36 at 5; Opposition ¶ 36 at xxiii.

43

Motion for Summary Judgment ¶ 38 at 5; Opposition ¶ 38 at 1.

6

32.

Mr. Flores claims to have contacted Albertsons’s employee hotline and

complained of disability discrimination, but Albertsons has no record of any such contact. 44
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 45 A factual dispute is genuine when
“there is sufficient evidence on each side so that a rational trier of fact could resolve the issue
either way.” 46 In determining whether there is a genuine dispute as to a material fact, the court
should “view the factual record and draw all reasonable inferences therefrom most favorably to
the nonmovant.” 47
The moving party “bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” 48
However, a party cannot “avoid summary judgment by repeating conclusory opinions,
allegations unsupported by specific facts or speculation.” 49 Instead, “[a] party asserting that a
fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of
materials in the record.” 50

44

Motion for Summary Judgment ¶ 39 at 5; Opposition ¶ 39 at 1.

45

FED. R. CIV. P. 56(a).

46

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).

47

Id.

48

Id. at 670–71.

49

Colony Nat'l Ins. Co. v. Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008) (citing Argo v.
Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); FED. R. CIV. P. 56(e))
50

FED. R. CIV. P. 56(c)(1).

7

DISCUSSION
“[I]n order 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 or prospective employer
because of that disability.’” 51 Albertsons’s Motion for Summary Judgment focuses solely on the
second and third elements. 52 Although not addressed by either party, it is questionable whether
Mr. Flores has demonstrated the first element given that the only evidence in the record
regarding Mr. Flores’ medical condition indicates that he may return to work without restriction.
Nonetheless, even assuming that Mr. Flores is a disabled person, he still failed to establish a
prima facie case of disability discrimination and summary judgment in favor of Albertsons is
appropriate.
Mr. Flores is not qualified to perform an essential function of his job
Albertsons argues that Mr. Flores is not qualified to perform an essential function of his
job because he is unable to pass the Physical Abilities Test. The plaintiff bears the burden of
showing that he is able to perform the essential functions of his job, with or without reasonable
accommodation. 53 Essential functions are defined as ‘“the fundamental job duties of the
employment position the individual with a disability holds or desires’ but ‘not . . . the marginal
functions of the position.’” 54 “[A]n employer may require an employee to be able to perform

51

E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037–38 (10th Cir. 2011).

52

Each of these elements is essential to an ADA claim. Hennagir v. Utah Dept. of Corrections, 587 F.3d 1255,
1261-62 (10th Cir. 2009). Therefore, summary judgment is appropriate as long as one element is not met.
53

Hennagir, 587 F.3d at 1262.

54

Hawkins v. Schwan’s Home Service, Inc., 778 F.3d 877, 884 (10th Cir. 2015) (quoting 29 C.F.R. § 1630.2(n)(1)).

8

functions that [he] might rarely, or even never, need to perform.” 55
The determination of whether a particular function is essential is a factual inquiry 56 that
begins by determining whether the employer actually requires all employees in the particular
position to satisfy the alleged job-related requirement. 57 Once that threshold question is decided,
the following factors are then considered to determine whether the function is fundamental to the
position:
(i) The employers’ 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 the 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. 58
“This analysis ‘is not intended to second guess the employer or to require him to lower company
standards . . . . 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.’” 59 Although an employer’s judgment regarding job functions is
not conclusive, it is heavily weighed. 60
The undisputed facts show that all newly hired employees and Warehouse Workers, who
have been away from their positions for more than six months, must take a Physical Abilities

55

Mielnicki v. Wal-Mart Stores, Inc., 738 Fed.Appx. 947, 950 (10th Cir. 2018).

56

Davidson v. Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003). Notably, the essential function inquiry is
conducted as of the date that it was imposed on the employee—not the individual’s hire date. Hennagir, 587 F.3d at
1262. “The ADA does not limit an employer’s ability to establish or change the content, nature, or functions of a
job.” Id. (citing Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995)).
57

Hennagir, 587 F.3d at 1262.

58

Id.

59

Hennagir, 587 F.3d at 1262 (quoting Davidson, 337 F.3d at 1191).

60

Id. at 1262.

9

Test prior to starting work at Albertsons. 61 While Mr. Flores alleges that only Warehouse
Workers assigned to selector duties may be required to take the test, he failed to properly support
this assertion as required by Rule 56(c). All of the relevant factors also favor finding the Physical
Abilities Test to be an essential function of Mr. Flores’s job. It is undisputed that the test is
essential and required to ensure the safety of Albertsons’s workers. The written job description
included various physical requirements. Given that a Warehouse Worker may be assigned to
perform a variety of duties over the course of his employment, it is reasonable to require all
Warehouse Workers, regardless of their current assignment, to have some minimal level of
physical performance. Finally, no evidence has been presented that other Warehouse Workers
were not required to pass the test to suggest that the work experience of past or current
Warehouse Workers have not been required to perform the function.
Having determined that the Physical Abilities Test is an essential job function, the next
step is to determine whether the plaintiff is “qualified.” “At the summary judgment stage, ‘the
relevant inquiry in determining whether Plaintiff is ‘qualified’ is whether he has provided
evidence that he can reasonably be accommodated [to perform the essential job function]—
which includes reasonable reassignment—sufficient to require submission to a jury.” 62 The
plaintiff bears the burden of demonstrating the existence of a facially reasonable
accommodation. 63 “The idea of accommodation is to enable an employee to perform the
essential functions of his job; an employer is not required to accommodate a disabled worker by
modifying or eliminating an essential function of the job.” 64

61

Appendix, Ex. B, Declaration of Travis Parke, docket no. 10-2.

62

Hennagir, 587 F.3d at 1264 (citing Wells v. Shalala, 228 F.3d 1137, 1144 (10th Cir. 2000)).

63

Hennagir, 587 F.3d at 1264.

64

Id. (citing Mathews v. Denver Post, 263 F.3d 1164, 1168-69 (10th Cir. 2001).

10

Mr. Flores argues that Albertsons failed to reasonably accommodate his inability to pass
the Physical Abilities Test by not allowing him to return to the Warehouse and limiting his duties
to that of a fork lift driver. All Warehouse Workers are required to pass the Physical Abilities
Test regardless of their assignment. Mr. Flores’s requested accommodation would have required
a waiver of the Physical Abilities Test—an essential function of the job—and modified the
function that all Warehouse Workers must be able to perform all Warehouse assignments.
Therefore, the request is not reasonable.
Moreover, the last physician’s note that Mr. Flores provided to Albertsons indicates that
he may return to work without restrictions. Although Mr. Flores argues that his physician
misunderstood his job requirements, Albertsons directly provided Mr. Flores’s physician with
the job description for Warehouse Workers identifying the physical requirements. Mr. Flores has
been free to correct his physician’s misunderstanding and to produce a new note identifying any
restrictions for Albertsons to consider; but, Mr. Flores has failed to do so. Therefore, a prima
facie showing of the second element of disability discrimination has not been established.
Mr. Flores was not subjected to an adverse employment action
Although it is sufficient to grant summary judgment on the second element alone,
Albertsons also argues that Mr. Flores has failed to establish that he was discriminated against
because he has not been subjected to an adverse employment action. Under the third element to
establish a prima facie case of discrimination, a plaintiff must show that he suffered
discrimination by an employer because of his disability. 65 “To demonstrate discrimination, a
plaintiff must show that he has suffered an ‘adverse employment action because of his

65

E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037–38 (10th Cir. 2011).

11

disability.’” 66 The determination of whether an adverse employment action exists is evaluated on
a “case-by-case approach, examining the unique factors relevant to the situation at hand.” 67 “In
general, ‘[o]nly acts that constitute a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits will rise to the level of an adverse employment action.” 68
The alleged adverse action must cause more than a “de minimis harm” to or a “de minimis
impact” upon an employee’s job opportunities or status. 69
Here, Mr. Flores has failed to demonstrate that he suffered an adverse employment
action. Mr. Flores remains employed by Albertsons and his status as a Warehouse Worker at
Albertsons has not changed. 70 He is able to return to work once he demonstrates that he is
qualified to perform an essential job function by passing the Physical Abilities Test. Mr. Flores
has not been denied the ability to retake the Physical Abilities Test or to provide additional
medical documentation that supports any restrictions on his return to work. Overall, Mr. Flores’s
arguments are insufficient to support a discrimination claim and summary judgment is
warranted.

66

Id. at 1038 (quoting Matthews v. Denver Post, 263 F.3d 1164, 1167 (10th Cir. 2001)).

67

Id. at 1040 (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004)).

68

Id. (quoting Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006)).

69

Id. (quoting Hillig, 382 F.3d at 1033).

70

Motion for Summary Judgment at 6.

12

ORDER
THEREFORE, IT IS HEREBY ORDERED that Albertsons’s Motion for Summary
Judgment 71 is GRANTED. Mr. Flores’s Complaint 72 is dismissed with prejudice. A civil
judgment will be entered in favor of Albertson.
The clerk of the court is directed to close the case.
Dated December 13, 2018.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

71

Docket no. 9.

72

Docket no. 2.

13