Free Memorandum & Opinion - District Court of Colorado - Colorado

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 04­ 00685­ cv­ EWN­ OES

JASON STEINBACH, Plaintiff, v. OM NI PROPERTIES, Defendant.

ORDER MEMORANDUM OF DECIS ION

This is an Americans with Disabilities Act (" ADA" discrimination case. Plaintiff Jason ) Steinbach alleges that Defendant Omni Properties, Inc. violated the ADA by terminating him based upon his learning disability. This matter is before the court on (1) " Defendant' M otion s for Summary Judgment,"filed February 1, 2005; and (2) " Plaintiff' M otion for Leave to File s Sur-Reply to Defendant' M otion for Summary Judgment,"filed April 21, 2005. Jurisdiction is s based on 28 U.S.C. § 1331 (2004). FACTS 1. Factual Background Plaintiff worked at Front Range Beverage Company (" FRBC" prior to his employment ) with Defendant. (M ot. for Summ. J. of Def. Omni Prop.; Br. in Supp. of M ot. for Summ. J. of

-1-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 2 of 26

Def. Omni Prop., Statement of Undisputed M aterial Facts ¶ 17 [filed Feb. 1, 2005] [hereinafter " Def.' Br." admitted in relevant part at Pl.' Resp. to Def.' M ot. for Summ. J., Resp. to s ]; s s Def.' Statement of Undisputed M aterial Facts ¶ 17 [filed M ar. 4, 2005] [hereinafter " s s Pl.' Resp." In September 1998, Coors Brewing Co. (" ].) Coors" purchased FRBC. (Def.' Br., ), s Statement of Undisputed M aterial Facts ¶ 19, Ex. A­ at 2 [Dr. M ead' 12/10/00 Psychological 22 s Report]; admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed M aterial s Facts ¶ 19.) On M ay 28, 1999, Coors terminated Plaintiff for falsification of records. (Def.' s Br., Ex. A­ at 2 [Dr. M ead' 12/10/00 Psychological Report].) Plaintiff filed an ADA 22 s employment discrimination suit against Coors following his termination. (Id., Statement of Undisputed M aterial Facts ¶ 20; admitted in relevant part at Pl.' Resp., Resp. to Statement of s Undisputed M aterial Facts ¶ 20.) Approximately one month after Coors terminated Plaintiff, Defendant hired Plaintiff as the groundskeeper at Kimberly Woods, an apartment complex. (Id., Statement of Undisputed M aterial Facts ¶ 23; admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed s M aterial Facts ¶ 23.) Plaintiff' brother, Joseph Steinbach, Jr., was the maintenance supervisor s at Kimberly Woods and supervised Plaintiff. (Id.) Defendant operates and manages Kimberly Woods. (Id., Statement of Undisputed M aterial Facts ¶ 24; admitted in relevant part at Pl.' s Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 24.) Kimberly Woods sits on approximately thirteen to fifteen acres and has approximately 242 units, nineteen buildings, and a clubhouse. (Id.) The basic function of the groundskeeper is to " maintain the community grounds." (Id., Ex. A­ at 1­ [Groundskeeper Job Description].) The groundskeeper' responsibilities 26 2 s -2-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 3 of 26

include: (1) picking up trash, cigarette butts, and dog excrement throughout the community; (2) removing snow throughout the community; (3) keeping all the landings and stairways in good conditions; (4) maintaining the pool area; and (5) sweeping and painting the parking areas. (Id.) Writing and reading are not essential functions of the groundskeeper position. (Id.) a. Plaintiff' Disability and Plaintiff' Request for Accommodations s s

Plaintiff asserts that he has a " developmental disability"that " significantly affects major life activities, including but not limited to severe difficulties in learning, reading and writing." (Compl. ¶ 6 [filed Apr. 6, 2004] [hereinafter " Compl." Plaintiff does not have a complete ].) understanding of his disability. (Def.' Br., Statement of Undisputed M aterial Facts ¶ 48; Ex. s A­ at 37 [Dep. of Pl.].) 43 Q. A. What do you understand about what kind of disability you have? I don' completely understand it. I just know what effects or what I can' t t do with it. Are there any other things that you can' do, other than reading and t writing and having a hard time remembering things? There' some other stuff, but I can' remember what it was. s t

Q. A.

(Id.) Plaintiff testified that he told Hope Kindler-Smith, the community manager at Kimberly Woods when Plaintiff was hired, that he had a hard time " reading and writing and remembering stuff." (Id., Ex. A­ at 36 [Dep. of Pl.].) 43 Q. A. Q. A. Did you tell [Kindler-Smith] that you needed special help in order to do the groundskeeper job? I didn' tell her that. t When did you tell M ichelle Thomas that you had a disability? I don' know the exact date when I told her. t

-3-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 4 of 26

Q. A. Q. A.

Was it before or after you had the interview with [Kindler-Smith] and your brother? It was after that. And what did you tell [Thomas]? I told her I had a hard time reading and writing and remembering lots of information, and remembering and stuff. Anything else? I think that was it. I can' remember if I told her anything else. t Did you tell M ichelle that you needed special help in order to do the job as groundskeeper? I didn' tell her that. t

Q. A. Q. A.

(Id., Ex. A­ at 36­ [Dep. of Pl.].) Plaintiff testified that, with the exception of his brother, 43 37 he only spoke with Kinder-Smith and Thomas regarding his disability and accommodations. (Id.)

Plaintiff' brother, does not know what Plaintiff' disability is: s s Q. What, if any, knowledge do you know of in connection with your brother' learning disability? I' just trying to find out what you know s m about his learning disability. I know he -- all I know is he has a disability and, you know, I don' know t -- I don' know what his disability is, but I know it affects his reading. t He' unable to read. It affects his memory. It affects his ability to retain s information, a lot of information.

A.

(Id., Statement of Undisputed M aterial Facts ¶ 49, Ex. A­ at 278 [Dep. of Joseph Steinbach, 44 Jr.].) Plaintiff' brother testified that he spoke with Kindler-Smith, and mentioned that s Plaintiff had a learning disability. (Id., Ex. A­ at 93 [Dep. of Joseph Steinbach, Jr.].) 44 Q. A. So my question is, What did you tell her about the learning disability? I just told her that he had a disability and that, you know, he had trouble reading and writing and that he was looking for a job and, you know, about getting him hired. -4-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 5 of 26

Q. A.

Did you tell her anything else other than your brother had trouble reading and writing? Just he' -- I can' remember exactly what was said, but I remember s t talking to her about, you know -- she just asked me about him, you know, and I can' remember exactly what I said, but -- t Did you tell her he would be able to do the job? Well, I remember having a conversation with [Kindler-Smith] about [Plaintiff], and I knew he had a disability, and I thought he could do the job, and I just asked her if there was any problem with hiring him. *** And you said you told her he had trouble reading and writing, and I was trying to find out if there was anything else you told her about the nature of his learning disability? Trying to think. I really can' recall at this time right now. I just don' -- t t

Q. A.

Q.

A.

(Id., Ex. A­ at 97­ [Dep. of Joseph Steinbach, Jr.].) Plaintiff' brother told Kindler-Smith 44 99 s that Plaintiff had trouble retaining too much information. (Id., Ex. A­ at 101 [Dep. of Joseph 44 Steinbach, Jr.].) Plaintiff' brother testified that he did not request an accommodation on behalf s of Plaintiff (Id., Ex. A­ at 101 [Dep. of Joseph Steinbach, Jr.].) 44 Q. So did you tell . . . Kindler-Smith anything about what types of special things you might need to do with respect to your brother so that he could do that job? I don' really recall any -- I don' really recall. I mean, I know we just -- t t we' had conversation about it. I mean, I just don' really recall what. ve t

A.

(Id.) Plaintiff' brother testified that Plaintiff asked him for an accommodation. s Q. To your knowledge, . . . did your brother . . . ever ask anyone at [Defendant' company] for any special help or accommodations that he s needed in order to do his job duties as groundskeeper? Yes. And how do you know that? Well, he asked me. I know that. When did he ask you? When he was first -- first hired.

A. Q. A. Q. A.

-5-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 6 of 26

Q. A.

And what special help or accommodations did he ask you for? He asked that he be -- things that were written to be verbally told to him. I' trying to think. And I don' remember anything else at this time. m t

(Pl.' Resp., Ex. A­ at 263 [Dep. of Joseph Steinbach, Jr.].) s 62 Plaintiff' brother only had one conversation with Kindler-Smith regarding Plaintiff' s s learning disability. (Id., Ex. A­ at 102 [Dep. of Joseph Steinbach, Jr.].) Plaintiff' brother 44 s testified that he " told people that [Plaintiff] needed to only do one task at a time, and he didn' t have -- he couldn' remember if he was given more." (Id., Ex. A­ at 295 [Dep. of Joseph t 44 Steinbach, Jr.].) Plaintiff' brother testified that he spoke with Diane Accardi, Defendant' s s District M anager, and M ichelle Thomas, the community manager following Kindler-Smith' s departure, about Plaintiff' disability sometime within Plaintiff' first year of employment and s s told them Plaintiff had a reading problem. (Id., Ex. A­ at 105 [Dep. of Joseph Steinbach, Jr.].) 44 Plaintiff' brother did not discuss Plaintiff' learning disability with any other person at s s Defendant' company other than Kindler-Smith, Accardi, and Thomas. (Id., Statement of s Undisputed M aterial Facts ¶ 54; admitted at Pl.' Resp., Resp. to Statement of Undisputed s M aterial Facts ¶ 54.) Plaintiff' brother never communicated to Defendant that Plaintiff (1) was s mentally retarded, (2) was diagnosed with limited intellectual development, (3) was socially phobic, or (4) had avoidant personality disorder with dependent traits. (Id., Statement of Undisputed M aterial Facts ¶ 55; admitted in relevant part at Pl.' Resp., Resp. to Statement of s Undisputed M aterial Facts ¶ 55.) Plaintiff' father testified that he informed Kindler-Smith that Plaintiff had a disability s and Plaintiff would need " verbal instructions and he would have to have instructions, you know, for new tasks." (Id., Statement of Undisputed M aterial Facts ¶ 56; admitted in relevant part at -6-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 7 of 26

Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 56.) Plaintiff' father did not s s communicate to Defendant that Plaintiff (1) had a developmental disability, (2) was mentally retarded, (3) had been diagnosed with limited intellectual development, (4) had social phobia, or (5) had avoidant personality disorder with dependent traits. (Id., Statement of Undisputed M aterial Facts ¶ 57; admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed s M aterial Facts ¶ 57.) Plaintiff' father told Kindler-Smith that Plaintiff would need " s hands-on training . . . right at first. [Plaintiff] would need verbal instructions. . . . [and] [h]e may need occasionally to be retrained in something if there' any new task. [Plaintiff] would definitely s need to be trained if there was a particular job he hadn' done before." (Id., Ex. A­ at 77 [Dep. t 46 of Joseph Steinbach, Sr.].) Donavan Vigil became the maintenance supervisor, and Plaintiff' direct supervisor, at s Kimberly Woods when Plaintiff' brother left. (Id., Statement of Undisputed M aterial Facts ¶ s 115; admitted at Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 115.) Plaintiff s testified that on occasion, he would ask Vigil for verbal instructions. (Id., Ex. A­ at 134 [Dep. 43 of Pl.].) Plaintiff testified that the only time Vigil didn' provide him with verbal instructions t was when Vigil was either busy or Vigil " didn' know what to do." (Id., Ex. A­ at 134­ t 43 35 [Dep. of Pl.].) b. Facts Leading To Plaintiff' Termination s

Defendant alleges that Thomas gave Plaintiff a verbal warning on M ay 23, 2001. (Id., Statement of Undisputed M aterial Facts ¶ 99.) Thomas allegedly discussed performance issues such as failing to (1) complete the trash run, (2) pick up dog feces, (3) pick up cigarette butts, and (4) clean parking spots and breezeways. (Id., Ex. A­ at 147­ [Dep. of M ichelle 41 49 -7-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 8 of 26

Thomas].) Thomas memorialized this warning in a memorandum dated M ay 23, 2001. (Id., Ex. A­ [5/23/01 Letter].) Plaintiff alleges that he did not receive any verbal warning. (Pl.' Resp., 30 s Resp. to Statement of Undisputed M aterial Facts ¶ 99.) On October 23, 2001, Thomas gave Plaintiff a written corrective action for unsatisfactory job performance. (Def.' Br., Ex. A­ [10/24/01 Corrective Action].) The corrective action s 31 stated that Accardi " visited the property on [October 23, 2001], the grounds were unacceptable. Dog feces in rocks, old pop cans [and] oil can [sic] in parking lot. Leaves [and] pine needles on stairways and entry of 153 [and] 148 not clean." (Id.) Plaintiff' brother' concerns about the s s corrective action did not pertain to Plaintiff' disability. s Q. A. Q. So [Accardi] wasn' happy [sic] the way the grounds at the property t looked at Kimberly Woods Apartments; would that be fair to say? Yes, yes. And she was wanting to have [Plaintiff] disciplined in connection with things she thought were problems with the way the grounds looked, correct? Yeah, I mean, yes. And you disagreed with her? No, I didn' disagree with her. I mean, she saying that he was -- his job t performance wasn' good, and I said it is good. t It isn' good? t It is good. He is doing his job. And we explained that, you know, we got these stepping stones going. You know, there' way too much work for s one person to do.

A. Q. A.

Q. A.

*** Q. You said before that you were commenting to [Accardi] about the reason the grounds were not up to her level of satisfaction was you needed more people. Isn' that what you testified? t I believe I asked her we needed more, you know, help to get -- if all the stuff she was asking to be done done [sic], yes. -8-

A.

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 9 of 26

*** Q. Did you at any time during this conversation tell Diana Accardi or . . . Thomas the reason those things you are concerned about are not done is because my brother has a learning disability? No, I don' think so. t Nothing to that effect, correct? No.

A. Q. A.

(Def.' Br., Ex. A­ at 37­ [Dep. of Joseph Steinbach, Jr.].) Plaintiff' brother did not s 43 39 s request any accommodation for Plaintiff to complete the groundskeeper job in connection with the October 23, 2001 corrective action. (Id., Statement of Undisputed M aterial Facts ¶ 109; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 109.) s On September 24, 2003, Accardi found the grounds in an unacceptable condition and she called a meeting with Plaintiff' brother. (Id., Ex. A­ at 194­ [Dep. of Joseph Steinbach, s 44 96 Jr.].) Plaintiff' brother testified that he told Accardi " s [t]here is no way one person can keep this property clean to your -- to your standards that you want done." (Id., Ex. A­ at 196 44 [Dep. of Joseph Steinbach, Jr.].) Plaintiff' brother testified that Accardi responded: " [w]ell, s ` we' got a $25 million complex and we have to hire disabled people,'meaning [Plaintiff]." (Id., ve Ex. A­ at 197 [Dep. of Joseph Steinbach, Jr.].) Following this meeting, Plaintiff' brother left 44 s his employment at Defendant' company. (Id., Statement of Undisputed M aterial Facts ¶¶ s 113­ admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed M aterial 14; s Facts ¶¶ 113­ 14.) The parties dispute whether Plaintiff' brother was fired or whether he quit. s (Id.)

-9-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 10 of 26

Defendant alleges that Thomas gave Plaintiff a corrective action form on November 25, 2002, for failing to show up for snow removal. (Id., Statement of Undisputed M aterial Facts ¶ 120, Ex. A­ [11/25/02 Corrective Action].) The corrective action form states, " 33 [f]ailure to show up for snow removal on Sunday, [November 24, 2002], you signed a memo dated [October 23, 2001], on snow removal. If it does not snow at your home you need to call supervisor for advice on the snow at Kimberly Woods." (Id.) Plaintiff did not sign the corrective action form. (Id.) Plaintiff contends that he was not given a corrective action for failure to show up for snow removal. (Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 120.) s Defendant contends that Vigil gave Plaintiff a verbal warning regarding job performance problems on December 26, 2002, and December 27, 2002. (Def.' Br., Statement of Undisputed s M aterial Facts ¶ 122, Ex. A­ [12/26/02 and 12/27/02 M emorandum by Donovan Vigil].) Vigil 34 memorialized this warning in a memorandum. (Id., Ex. A­ [12/26/02 and 12/27/02 34 M emorandum by Donovan Vigil].) Defendants allege that Thomas gave Plaintiff a verbal warning on both of these days for failing to pick up dog feces, cigarette butts, and debris. (Id., Statement of Undisputed M aterial Facts ¶ 123, Ex. A­ [12/27/02 M emorandum by M ichelle Thomas].) 57 Thomas memorialized this warning in a memorandum. (Id., Ex. A­ [12/27/02 M emorandum 57 by M ichelle Thomas].) Plaintiff denies that Thomas and Vigil gave him verbal warnings. (Pl.' s Resp., Resp. to Statement of Undisputed M aterial Facts ¶¶ 122­ 23.) Defendant asserts that on June 10, 2003, Thomas and Vigil informed Plaintiff of Accardi' plan to visit the property on the following day and Plaintiff should make certain the s grounds were clean. (Def.' Br., Statement of Undisputed M aterial Facts ¶ 132.) Plaintiff s contends that he was not told on June 10, 2003, Accardi was going to visit the property on June -10-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 11 of 26

11, 2003. (Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 132.) On June 11, s 2003, Accardi inspected the property and determined that the grounds were unacceptable. (Def.' Br., Statement of Undisputed M aterial Facts ¶ 134; admitted in relevant part at Pl.' s s Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 134.) Accardi observed dog feces, trash littering the property, dirt and debris in the parking areas, a tree limb lying down in one of the carports, and unpainted curb lines. (Id., Ex. A­ at 124­ [Dep. of Diana Accardi].) 42 26 Thomas noticed similar deficiencies. (Id., Ex. A­ at 221­ [Dep. of M ichelle Thomas].) 41 22 Accardi and Thomas decided to terminate Plaintiff' employment based upon this inspection. s (Id., Statement of Undisputed M aterial Facts ¶ 137, Ex. A­ [Termination Notice], Ex. A­ at 35 41 223, 254 [Dep. of M ichelle Thomas], Ex. A­ at 132 [Dep. of Diana Accardi].) The 42 termination notice stated: Accardi visited the property at Kimberly Woods [June 11, 2003], and was extremely dissatisfied of [sic] how the ground' carports and overall appearance of s the property. [sic] Tree limbs hanging on carports, curb lines not painted, and debris in parking areas. The carports under [b]uilding [number two] have not been cleaned in a couple of weeks, buildup of dirt [and] debris. (Id., Statement of Undisputed M aterial Facts ¶ 138, Ex. A­ [Termination Notice].) Despite 35 Plaintiff' contention to the contrary, the problems identified by Accardi and Thomas were all s within Plaintiff' job description. (Compare Pl.' Resp., Resp. to Statement of Undisputed s s Facts ¶ 138, with Def.' Br., Ex. A­ [Groundskeeper Job Description].) s 26 2. Procedural History On April 6, 2004, Plaintiff filed a complaint in this court. (Compl.) Plaintiff asserted one claim for relief styled as " violation of the [ADA]." (Id. ¶¶ 18­ 24.) On July 12, 2004,

-11-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 12 of 26

Defendant filed its answer. (Def. Omni Prop.' Answer to Jason Steinbach' Compl. [filed July s s 12, 2004].) On February 1, 2005, Defendant filed its motion for summary judgment. (Def.' Br.) s Defendant argues that Plaintiff is not a qualified individual with a disability because Plaintiff cannot perform the essential functions of the groundskeeper position with or without reasonable accommodation. (Id. at 36.) Defendant contends that even if Plaintiff is a qualified individual with a disability Plaintiff did not (1) specifically identify the nature and extent of his disability, and (2) request reasonable accommodations. (Id. at 38­ 43.) On M arch 8, 2005, Plaintiff filed his response to Defendant' motion for summary judgment. (Pl.' Resp.) On M arch 31, 2005, s s Defendant filed its reply in support of its motion for summary judgment. (Reply in Supp. of M ot. for Summ. J. of Def. Omni Prop. [filed M ar. 31, 2005] [Def.' Reply].) On April 21, s 2005, Plaintiff filed a motion for leave to file a sur-reply to Defendant' reply in support of its s motion for summary judgment. (Pl.' M ot. for Leave to File Sur-Reply to Def.' M ot. for s s Summ. J. [filed Apr. 21, 2005].) On M ay 11, 2005, Defendant filed a response to Plaintiff' s motion for leave to file a sur-reply. (Def.' Resp. to Pl.' M ot. for Leave to File Sur-Reply s s [filed M ay 11, 2005].) ANALYS IS 1. Standard of Review Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where " pleadings, depositions, answers to interrogatories, and admissions the on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) -12-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 13 of 26

(2003); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party' case. Celotex s Corp. v. Catrett, 477 U.S. 317, 325 (1986). " Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate " specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324; see Fed. R. Civ. P. 56(e). " Only disputes over facts that might affect the outcome of the ` suit under governing law will preclude the entry of summary judgment.' Sanchez v. Denver " Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998) (quoting Anderson, 477 U.S. at 248). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). The factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int' Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, l, 1241 [10th Cir. 1990]). 2. Plaintiff' ADA Claim s The burden shifting analysis established in McDonnell Douglas v. Greene, 411 U.S. 792, 802 (1973), generally applies to ADA disparate treatment claims. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir. 1999). Under that analysis, Plaintiff carries the burden of raising a genuine issue of material fact on each element of his prima facie case. If Plaintiff establishes a prima facie case, the burden shifts to Defendant to offer a legitimate -13-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 14 of 26

nondiscriminatory reason for its employment decision. Id. If Defendant articulates a nondiscriminatory reason, the burden shifts back to Plaintiff to show a genuine issue of material fact as to whether Defendant' reason for the adverse employment action is pretextual. Id. at s 1079­ 80. To establish a prima facie case under the ADA, Plaintiff must show: (1) he is disabled within the meaning of the ADA; (2) he is qualified, that is, with our without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that Defendant terminated him because of his disability. White v. York Int' Corp., 45 l F.3d 357, 360­ (10th Cir. 1995). Defendant does not dispute that Plaintiff has a disability 61 under the ADA that substantially limits one or more of his major life activities. (Def.' Br. at 36 s n. 6.) I need only address the second element. The ADA defines a " qualified individual"as " individual with a disability who, with or an without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir. 2003). To determine whether a person is qualified under the ADA, the Tenth Circuit has promulgated a two part test. Davidson, 337 F.3d at 1190. First, the court must determine whether the individual can perform the essential functions of the job. Id. Second, " (but only if) the court concludes that the individual is unable to perform the if essential functions of the job, the court determines whether any reasonable accommodation by the employer would enable him to perform those functions." Id.

-14-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 15 of 26

a.

Essential Functions

Defendant argues that it is entitled to summary judgment because Plaintiff cannot perform the essential functions of the groundskeeper position. (Def.' Br. at 36.) On January 8, 2003, s five months before Defendant terminated Plaintiff' employment, Plaintiff' expert psychologist, s s M ichael D. M ead, Ed.D, opined that Plaintiff was " unable to perform any work." (Id., Ex. A­ 9 [Dr. M ead' 1/8/03 Psychological Report].) Specifically, Dr. M ead opined that: s [b]ased upon my previous psychological evaluations of [Plaintiff], and upon review of my findings, I am of the opinion that [Plaintiff] continues to suffer from a debilitating mental disorder and is unable to perform any work. He is unable to neither live on his own nor manage his own affairs and it totally reliant upon his parents, with whom he lives, to do this for him. (Id. [emphasis added].) Dr. M ead later supplemented his opinion in this letter with an affidavit stating that he " was referring to ` competitive employment'in that sentence, as opposed to ` sheltered employment.' (Pl.' Resp., Ex. A­ [Aff. of M ichael M ead].) Dr. M ead' January " s 60 s 8, 2003 letter and his supplemental affidavit show that Plaintiff cannot perform the essential functions of the groundskeeper position. Dr. M ead opined that Plaintiff could only perform " sheltered employment." (Id., Ex. A­ ¶ 3 [Aff. of M ichael M ead].) Sheltered employment refers to segregated vocational and 60 non-vocational programs for individuals with disabilities. (Def.' Reply, Ex. A­ [Sheltered vs. s 82 Supported Employment].) Indeed, the regulations for social security disability benefits are instructive in this case. The regulations draw a distinction between competitive and sheltered employment. Zenker v. Bowen, 872 F.2d 268, 270­ (8th Cir. 1989); Iamarino v. Heckler, 795 71 F.2d 59, 60­ (8th Cir. 1986). Sheltered employment envisions a " 61 sheltered workshop or comparable facility especially set up for severely impaired persons." 20 C.F.R. § -15-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 16 of 26

404.1574(b)(4). M odifications an employer may offer to accommodate a plaintiff' injury or s disability do not necessarily render the position " sheltered employment." See generally Iamarino, 795 F.2d at 60­ see also Goodwill Indus. of Cent. Florida v. Heard, 863 So.2d 389, 61; 390­ (Fla. Dist. Ct. App. 2003). A reasonable job modification for the purpose of 91 accommodating a partially disabled employee, will not, however, convert the job from competitive to sheltered employment. Id. Plaintiff' job in this case cannot be considered s sheltered employment. Thus Dr. M ead' opinion that Plaintiff cannot perform any competitive s employment means that Plaintiff cannot perform the essential functions of his job as groundskeeper. Further, Dr. M ead contends that " [Plaintiff can and] has successfully performed work when his disabilities were accommodated." (Pl.' Resp., Ex. A­ ¶ 5 [Aff. of M ichael M ead].) s 60 Dr. M ead' opinion as to this point is mere speculation. Dr. M ead does not have personal s knowledge regarding whether Plaintiff successfully performed his work when his disabilities were allegedly accommodated. An affidavit which is not based on personal knowledge is not enough to create a genuine issue of material fact sufficient to survive summary judgment. Salguero v. City of Clovis, 366 F.3d 1168, 1177 n. 4 (10th Cir. 2004). Indeed, Dr. M ead did not identify any specific accommodation that Plaintiff would require in order to perform his groundskeeper job. (Def.' Br., A­ [Plaintiff' Disclosure of Expert Witness M ichael M ead].) s 23 s Additionally, Defendant' position that Plaintiff cannot perform the essential functions s of his position is bolstered by Plaintiff' multiple applications for social security disability in s which he and his health care providers opine that Plaintiff is unable to perform any work. (Def.' Br., Ex. A­ [11/18/96 Application for Social Security Disability Benefits]; A­ s 14 17 -16-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 17 of 26

[1/13/97 Request for Reconsideration of Social Security Disability Benefits]; Ex. A­ [7/2/97 56 Daily Activities Questionaire]; Ex. A­ [8/16/00 Work Activity Report]; Ex. A­ [12/2/04 36 40 Disability Application].) An ADA plaintiff' " s sworn assertion in an application for disability benefits that [he] is . . . ` unable to work'will appear to negate an essential element of [his] ADA case . . . at least if [he] does not offer a sufficient explanation." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). On January 10, 1997, Plaintiff sought reconsideration of his previous denial of social security disability benefits. (Def.' Br., Ex. A­ [1/13/97 Request for Reconsideration of Social s 17 Security Disability Benefits].) Plaintiff' application for disability benefits stated that " have s I an anxiety disorder and basically a total inability to deal with people that keeps me from working or even effectively applying for work." (Id.) On January 10, 1997, Plaintiff reported in a reconsideration disability report that " believe I [am] totally disabled . . . I am very restricted in I trying to carry out activities or work -- ike [sic] activities." (Id., Ex. A­ [1/10/97 18 Reconsideration Disability Report].) In M arch 1997, in connection with Plaintiff' application s for social security disability, Dr. M ead opined that " [Plaintiff' numerous mental disorders are s] with [sic] the moderate to severe range, and cause severe vocational impairment. For at least the last year he has been totally disabled for all types of employment." (Id., Ex. A­ [3/1/97 Dr. 13 M ead' Psychological Report].) s On January 26, 1997, F. Bruce M errill, M .D., evaluated Plaintiff at the request of the social security disability determination services. (Id., Ex. A­ [7/28/97 Dr. M errill' 19 s Psychological Evaluation].) Dr. M errill opined that " patient is rather severely compromised this in his ability to do work-related activity, such as understanding and memory, sustained -17-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 18 of 26

concentration, apparently persistence, pace and social interaction." (Id.) In July 1997, Plaintiff reported to the social security disability administration that he has lost jobs in the past because " [he] could not make any decisions on his own. [sic] Problems understanding what needed to be done. [sic] Could not perform his duties." (Id., Ex. A­ [7/2/97 Daily Activities Questionaire].) 56 On July 30, 1997, the social security disability administration reversed its prior decision and awarded Plaintiff social security disability benefits based on Plaintiff' social phobia, avoidant s personality disorder, and learning disability. (Id., Ex. A­ [Disability Determination and 21 Transmittal].) Plaintiff remained unemployed and received social security disability benefits until September 1997, when Plaintiff began working at FRBC. (Id., A­ [Dr. M ead' 12/10/00 22 s Psychological Report].) Coors purchased FRBC in 1998, and Plaintiff continued to work as a Coors employee until his termination on M ay 28, 1999. (Id.) Plaintiff sued Coors for employment discrimination in M ay 2000. (Id., Statement of Undisputed M aterial Facts ¶ 20; admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 20.) s On December 10, 2000, in connection with Plaintiff' ADA employment discrimination lawsuit s against Coors and while Defendant employed Plaintiff, Dr. M ead prepared a psychological report. (Id., Ex. A­ [Dr. M ead' 12/10/00 Psychological Report].) Dr. M ead noted that " 22 s the opinions I expressed in my previous report of [M arch 1, 1997] remain unchanged."(Id.) In the M arch 1, 1997 report, Dr. M ead opined that Plaintiff is " totally disabled for all types of employment." (Id., Ex. A­ [Dr. M ead' 3/1/97 Psychological Report].) In addition, Dr. M ead 13 s opined that " [o]ver [Plaintiff' lifetime, his self-esteem and self concept will continue to be s] diminished, relative to how it was prior to his termination. This will in turn further interfere -18-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 19 of 26

with his ability to find and maintain employment." (Id., Ex. A­ [Dr. M ead' 12/10/00 22 s Psychological Report].) Defendant hired Plaintiff in June 1999. (Id., Statement of Undisputed M aterial Facts ¶ 23; admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ s 23.) On August 16, 2000, while Defendant employed Plaintiff, Plaintiff reported to the social security administration that his termination from Coors was " because of my disability,"and " I cannot [sic] get any work in the past unless a friend or relative helps me and trains me because of my disability." (Id., Ex. A­ [8/16/00 Work Activity Report].) The form states " 36 [p]lease use this form to describe your work activity since [January 2000]." (Id.) Plaintiff completed the application on August 16, 2000 and did not indicate that Defendant employed him at that particular time. (Id.) Plaintiff represented to the social security administration that he was totally disabled and eligible for benefits. (Id.) On December 2, 2004, six months following Plaintiff' termination, Plaintiff filed another s application for social security disability income. (Id., Ex. A­ [Social Security Disability 40 Application.) Plaintiff asserted in his application, that his illness first prevented him from working on June 11, 2003, the date Defendant terminated Plaintiff' employment. (Id.) s The foregoing evidence, while not dispositive on its own, paints a clear picture regarding Plaintiff' inability to perform the essential functions of his job. Plaintiff and Plaintiff' treating s s physicians have consistently maintained that Plaintiff is incapable of working. Indeed, Plaintiff sought disability benefits during his employment with Defendant. (Id., Ex. A­ [8/16/00 Work 36 Activity Report].) Statements by Plaintiff' own physician that Plaintiff is unable to work are s

-19-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 20 of 26

probative on whether Plaintiff can perform the essential functions of the job. Weiler v. Household Fin. Corp., 101 F.3d 519, 525 (7th Cir. 1996). Plaintiff contends that " [b]ecause the two regulatory schemes are different, plaintiff need only explain differences between statements made under those schemes to survive summary judgment." (Pl.' Resp. at 56.) To survive Defendant' motion for summary judgment, Plaintiff s s must explain why his social security disability contention is consistent with his ADA claim that he could " perform the essential functions"of his previous job, at least with " reasonable accommodation." Cleveland, 526 U.S. at 797­ Plaintiff contends that he has not asserted 98. inconsistent claims. (Pl.' Resp. at 56.) Plaintiff argues that " s [w]hile there may have been times in his life when he simply could not work, the relevant documents during the relevant time period consistently show that he can work and did work satisfactorily when his disabilities were accommodated." (Pl.' Resp. at 58.) Plaintiff' record of employment does not refute or explain s s the inconsistency between his social security disability contention and his ADA claim that he can perform the essential functions of his job. Plaintiff continued to maintain his claim for social security disability benefits while he worked for Defendant. In fact, Plaintiff reported to the social security administration that " cannot [sic] get any work in the past unless a friend or I relative helps me and trains me because of my disability." (Id., Ex. A­ [8/16/00 Work Activity 36 Report].) Plaintiff completed the application on August 16, 2000 and did not indicate his present employment situation. (Id.) Plaintiff represented to the social security administration that he was totally disabled and eligible for benefits. (Id.) Plaintiff' representation to the social security administration that in order to work he s needed to be trained and supervised by a friend or relative, cannot be reconciled with his ADA -20-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 21 of 26

claim that he can perform the essential functions of his job. Under the ADA, a plaintiff is not entitled to a specific supervisor as an accommodation to perform the essential functions of his job. Weiler, 101 F.3d at 526; see also Woodman v. Runyon, 132 F.3d 1330, 1340 (10th Cir. 1997). M oreover, Plaintiff did not offer an explanation for his August 16, 2000 application for social security disability benefits. Further, Plaintiff did not sufficiently reconcile his representation to the social security administration that he became disabled on the date Defendant fired him, yet, he was allegedly able to perform the essential functions of his job on that date. Accordingly, Plaintiff has not demonstrated that he can perform the essential functions of his job. b. Reasonable Accommodation

Next, I must determine whether any reasonable accommodation by Defendant would have enabled Plaintiff to perform the essential functions of his job. To defeat Defendant' motion for s summary judgment, Plaintiff must first demonstrate that an accommodation appears reasonable on its face. Mason v. Avaya Commc' Inc., 357 F.3d 1114, 1122 (10th Cir. 2004). Whether an n, accommodation is reasonable under the ADA is a mixed question of law and fact. Id. By the statutory language, " reasonable accommodation"is limited by the employer' knowledge of the s disability. Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir. 1998) (citing Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 [7th Cir. 1996]). The federal regulations implementing the ADA " envision an interactive process that requires participation by both parties." Id. Plaintiff has a duty to provide Defendant with information on his medical condition as part of the ADA interactive process. Id. at 619 n. 3. Thus an employer cannot be held liable for failing to accommodate in the absence of an employee' request for accommodation. Maes v. s -21-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 22 of 26

Henderson, 33 F. Supp. 2d 1281, 1290 (D. Nev. 1999). It is the employee' initial request for an s accommodation which triggers the employer' obligation to participate in the interactive process s of determining one. Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). Further, the ADA requires only reasonable accommodations to the known physical or mental limitations of the employee. Nicholson v. Boeing Co., 176 F.3d 489, No. 98­ 3058, slip op. at 6 (10th Cir. M ay 4, 1999) (table) (citing Beck, 75 F.3d at 1134). Plaintiff has not produced sufficient evidence that he, or his family members, specifically identified the nature and extent of his disability or his need for accommodations. First, Plaintiff does not have a complete understanding of his disability. (Def.' Br., Ex. A­ at 37 [Dep. of s 43 Pl.].) Plaintiff did not provide Defendant with information on his medical condition. (Id., Ex. A­ at 36 [Dep. of Pl.].) Plaintiff testified that he told Kindler-Smith that he had a hard time 43 " reading and writing and remembering stuff." (Id.) Q. A. Q. A. Q. A. Q. A. Did you tell [Kindler-Smith] that you needed special help in order to do the groundskeeper job? I didn' tell her that. t When did you tell M ichelle Thomas that you had a disability? I don' know the exact date when I told her. t Was it before or after you had the interview with [Kindler-Smith] and your brother? It was after that. And what did you tell [Thomas]? I told her I had a hard time reading and writing and remembering lots of information, and remembering and stuff. Anything else? I think that was it. I can' remember if I told her anything else. t

Q. A.

-22-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 23 of 26

Q. A.

Did you tell M ichelle that you needed special help in order to do the job as groundskeeper? I didn' tell her that. t

(Id., Ex. A­ at 36­ [Dep. of Pl.].) Reading and writing are not essential functions of the job 43 37 as groundskeeper. (Id., Ex. A­ at 1­ [Groundskeeper Job Description].) Plaintiff testified 26 2 that, with the exception of his brother, he only spoke with Kindler-Smith and Thomas regarding his learning disability. (Id.) Viewing the facts in a light most favorable to Plaintiff, as I must, Defendant did not have enough information regarding Plaintiff' disability to know of any s limitation that would effect Plaintiff' job as groundskeeper. s Second, Plaintiff' brother does not have a complete understanding of Plaintiff' s s disability. (Ex. A­ at 278 [Dep. of Joseph Steinbach, Jr.].) Plaintiff' brother never 44 s communicated to Defendant that Plaintiff (1) was mentally retarded, (2) was diagnosed with limited intellectual development, (3) was socially phobic, or (4) had avoidant personality disorder with dependent traits. (Id., Statement of Undisputed M aterial Facts ¶ 55; admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 55.) Plaintiff' brother s s testified that he spoke with Kindler-Smith when Plaintiff was hired and mentioned that Plaintiff had a learning disability which impeded his ability to read, write, and retain too much information. (Id., Ex. A­ at 93 [Dep. of Joseph Steinbach, Jr.].) Plaintiff' brother testified 44 s that he did not request an accommodation on behalf of Plaintiff. (Id., Ex. A­ at 101 [Dep. of 44 Joseph Steinbach, Jr.].) Plaintiff' brother testified that he spoke with Accardi and Thomas s about Plaintiff' disability sometime within Plaintiff' first year of employment and told them s s Plaintiff had a reading problem. (Id., Ex. A­ at 105 [Dep. of Joseph Steinbach].) Again, 44 reading and writing are not essential functions of the groundskeeper job. (Id., Ex. A­ at 1­ 26 2 -23-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 24 of 26

[Groundskeeper Job Description].) Thus, Defendant did not have enough information from Plaintiff' brother to trigger its duty to determine an appropriate accommodation, if any at all. s Third, Plaintiff' father did not inform Defendant of the nature and extent of Plaintiff' s s disability, which would have triggered Defendant' obligation to provide Plaintiff with s accommodations. Plaintiff' father did not communicate to Defendant that Plaintiff (1) had a s developmental disability, (2) was mentally retarded, (3) had been diagnosed with limited intellectual development, (4) had social phobia, or (5) had avoidant personality disorder with dependent traits. (Id., Statement of Undisputed M aterial Facts ¶ 57; admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 57.) Plaintiff' father told s s Kindler-Smith that Plaintiff would need " hands-on training . . . right at first. [Plaintiff] would need verbal instructions . . . [and] [h]e may need occasionally to be retrained in something if there' any new task. [Plaintiff] would definitely need to be trained if there was a particular job s he hadn' done before." (Id., Ex. A­ at 77 [Dep. of Joseph Steinbach, Sr.].) M oreover, t 46 Plaintiff has not produced any evidence that Defendant failed to accommodate Plaintiff in this fashion. Thus, Defendant did not have enough information from Plaintiff' father to trigger its s duty to determine an appropriate accommodation, if any at all. Accordingly, even assuming Defendant' conduct could support a claim under the ADA for failure to provide reasonable s accommodation, that claim would only arise after Plaintiff satisfied his duty to notify Defendant of the nature of his disability. See Templeton, 162 F.3d at 619 n. 3. Further, even assuming Plaintiff did sufficiently inform Defendant of the nature and extent of his disability, Plaintiff has not produced any evidence that Plaintiff requested an accommodation or that Defendant failed to accommodate Plaintiff' known limitations. See s -24-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 25 of 26

Nicholson, 176 F.3d at *6 (a defendant is only required to accommodate a plaintiff' known s disability and subsequent limitations). Plaintiff and Plaintiff' brother testified that they did not s request a reasonable accommodation for Plaintiff. (Def.' Br., Statement of Undisputed M aterial s Facts ¶ 109; admitted at Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 109, Ex. s A­ at 101 [Dep. of Joseph Steinbach, Jr.], Ex. A­ at 36­ [Dep. of Pl.].) While it is 44 43 37 unclear whether Plaintiff' father' discussion with Kindler-Smith regarding Plaintiff' need for s s s verbal instructions and hands on training is a request for accommodation, Plaintiff has not demonstrated that Defendant failed to accommodate Plaintiff in this manner. Plaintiff asserts that during the time his brother was his supervisor, his brother accommodated Plaintiff' s limitations and Plaintiff was able to perform the essential functions of his position. (Pl.' Resp. s at 64; Compl. ¶¶ 11­ 14.) On September 24, 2003, Plaintiff' brother left his employment with s Defendant and Vigil became Plaintiff' supervisor. (Id., Statement of Undisputed M aterial Facts s ¶ 115; admitted at Pl.' Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 115.) Plaintiff s testified that on occasion, he would ask Vigil for verbal instructions. (Id., Ex. A­ at 134 [Dep. 43 of Pl.].) Plaintiff testified that the only time Vigil did not provide him with verbal instructions was when Vigil was either busy or Vigil " didn' know what to do." (Id., Ex. A­ at 134­ t 43 35 [Dep. of Pl.].) Thus, viewing the facts in a light most favorable to Plaintiff, Plaintiff has not demonstrated a period of time in which Defendant did not accommodate Plaintiff' learning s disability to the extent Defendant had knowledge of such disability and the resulting limitations. See Nicholson, 176 F.3d at *6 (a defendant is only required to accommodate a plaintiff' known s disability and subsequent limitations). Accordingly, Defendant is entitled to summary judgment on Plaintiff' ADA claim. s -25-

Case 1:04-cv-00685-EWN-OES

Document 74

Filed 09/08/2005

Page 26 of 26

3.

Conclusions Based on the foregoing it is therefore ORDERED as follows: 1. Defendant' motion for summary judgment (# 40) is GRANTED. s 2. Plaintiff' motion for leave to file a sur-reply (# 57) is DENIED as moot. s 3. The clerk shall forthwith enter judgment in favor of Defendant and against Plaintiff,

dismissing all claims with prejudice. Defendant may have its costs by filing a bill of costs within eleven days of the date of this order.

Dated this 8th day of September, 2005.

BY THE COURT:

s/Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

-26-