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Vannattan v. VendTech-SGI, LLC

United States District Court, D. Kansas

May 12, 2017

William M. Vannattan, Plaintiff,
v.
VendTech-SGI, LLC and Securiguard, Inc., Defendants.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge.

         In this lawsuit, plaintiff William M. Vannattan alleges that defendants violated the Americans with Disabilities Act (“ADA”), as amended by ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553, 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., by removing plaintiff from a position he held for more than 13 years after plaintiff failed to pass an “Ishihara” color vision test and arguably no longer met the “normal color vision” requirement for the position. Plaintiff further alleges that defendants failed to accommodate his request to have his color vision evaluated under a basic color-vision test that plaintiff had passed on prior occasions and failed to provide him the opportunity to obtain color-corrective lenses that would mitigate his deficiency. This matter is presently before the court on defendants' motion for summary judgment on plaintiff's claims (doc. 57). As will be explained, the motion is granted in part and denied in part.[1]

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Defendants provide security services through federal-government contracts in the State of Kansas. Pertinent to this case, defendants had a contract with the Federal Protective Service (“FPS”) to provide security services at a United States Environmental Protection Agency (“EPA”) facility located in Lenexa, Kansas.[2]That contract contained a “Statement of Work” that set forth certain medical standards that employees working under the contract were required to meet. One of those requirements is that PSOs have “normal color vision.” That phrase is not defined in the Statement of Work and the contract does not mandate or preclude the use of any particular test in assessing the color vision of an applicant or employee. The contract also required employees to undergo a medical examination at the time of hire and every three years thereafter to ensure that employees continued to meet the contractual medical requirements.

         Plaintiff is a 63-year-old male who was employed by defendants as a Protective Security Officer (PSO) from March 31, 2012 until February 25, 2015. Plaintiff, however, had worked as a PSO under defendants' predecessors under a similar FPS contract since 2002. Plaintiff was stationed at the EPA facility in Lenexa, Kansas and his job duties included, among other things, screening visitors for entry into the facility; using a magnetometer, issuing badges, operating an x-ray machine, and writing up incident reports with descriptions of what he saw and heard. At the time defendants hired plaintiff in 2012, plaintiff was given a “basic” color-vision test which revealed no color-vision deficiency. On February 19, 2015, plaintiff underwent his required triennial medical examination, which was conducted at a Concentra clinic in Kansas City, Kansas. For the first time, plaintiff's color vision was tested using the “Ishihara” color-plate test. Based on the results of that test, the examining physician marked “no” in response to a question on the Medical Examination Questionnaire that asked whether the patient exhibited “normal color vision.” Defendants received the results of plaintiff's medical examination later that same morning. At that point, defendants removed plaintiff from working under the FPS contract and advised plaintiff to speak with Jennifer Sutton, defendants' Kansas City office manager. Plaintiff's evidence suggests that, during this same time frame, the color vision of ten (10) other PSOs working under the same FPS contract was tested using alternate (and less stringent) color-vision tests rather than the Ishihara test.

         Ms. Sutton informed plaintiff that all PSOs were contractually required to have “normal color vision” and that, in all likelihood, plaintiff's employment would be terminated based on the results of his medical examination and his inability to meet the medical standards in the Statement of Work. Ms. Sutton told plaintiff that he could return to the doctor at Concentra for further review or visit his own optometrist for an evaluation of his color-vision deficiency, but that his employment would nonetheless be terminated because plaintiff's color-vision deficiency was not treatable. On February 23, 2015, plaintiff was examined by his optometrist, Dr. Andrew Franken. Dr. Franken confirmed that plaintiff had a mild red-green color-vision deficiency based on the Ishihara test but indicated that plaintiff was able to properly identify all the basic colors when prompted using “the basic color identification test.” Dr. Franken's report was provided to defendants on February 23, 2015. Defendants' human resources director, Leslie Howard-Watts, made the decision to terminate plaintiff's employment two days later.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Disability Discrimination Claims

         In the pretrial order, plaintiff asserts claims for disability discrimination against defendants under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, as amended by the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553. Plaintiff alleges that defendants terminated plaintiff's employment based on plaintiff's mild color-vision deficiency and that defendants failed to accommodate his request to have his color vision evaluated under a basic color-vision test and failed to provide him the opportunity to obtain color-corrective lenses that would mitigate his deficiency. Defendants move for summary judgment on these claims.

         A. Termination Claim

         The ADAAA prohibits employers from discriminating against “a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Defendants do not dispute that plaintiff's employment was terminated based on his color-vision deficiency.[3] In such circumstances, the court agrees with plaintiff that the McDonnell Douglas burden-shifting framework is inappropriate. See Hawkins v. Schwan's Home Service, Inc., 778 F.3d 877, 883 (10th Cir. 2015) (McDonnell Douglas analysis inapplicable when ADA plaintiff is terminated based on failure to receive medical qualification in light of health conditions). Plaintiff, however, must still establish a prima facie case of discrimination. To establish a prima facie case of discrimination, plaintiff must present evidence that (1) he is disabled within the meaning of the ADAAA; (2) he is qualified to perform the essential functions of his job with or without accommodations; and (3) he was terminated because of his disability. Id. Defendants will then defend their decision “on the ground that plaintiff is not qualified for the position, with or without reasonable accommodation” within the meaning of the ADAAA. See Id. At that point, plaintiff's status as a “qualified” individual with a disability becomes the determinative issue in the case. Id.

         1. Whether Plaintiff is Disabled

         Congress has provided three statutory definitions for “disability” under the ADA: A plaintiff may show “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Smothers v. Solvay Chems., Inc., 740 F.3d 530, 544 (10th Cir. 2014) (quoting 42 U.S.C. § 12102(1)). In the pretrial order, plaintiff contends that defendants discriminated against him on the basis of an actual disability under subsection (A) and on the basis of a perceived disability under subsection (C).

         To demonstrate an actual disability under subsection (A), plaintiff must have a physical or mental impairment that substantially limits one or more major life activities. See 42 U.S.C. 12102(1)(A). Here, plaintiff contends that his color-vision deficiency substantially limits two of plaintiff's major life activities-seeing and working. To show that his color-vision deficiency substantially limits one or more major life activity, plaintiff must show that he is substantially limited in his ability to perform the major life activity “as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Id. Nonetheless, not every impairment will constitute a disability for purposes of the ADAAA. Id. The determination of whether an impairment substantially limits a major life activity requires an “individual assessment, ” id. § 1630.2(j)(1)(iv), and may take into consideration facts such as the difficulty, effort or time required to perform the major life activity; pain experienced when performing a major life activity; and/or the way the impairment affects the operation of a major bodily function. Id. § 1630.2(j)(4)(ii).

         In support of his argument that his color-vision deficiency substantially limits his ability to see, plaintiff contends that he cannot see certain “shades” of reds and greens in the same way as people without color blindness can. Without more, plaintiff's evidence does not support an inference that his color-vision deficiency substantially limits his ability to see. To begin, although the ability to see is a major life activity, color-distinction is only one aspect of sight. See Ferguson v. Whirlpool Corp., 2000 WL 1013309, at *3 (W.D. Ark. Apr. 5, 2000). Consistent with that principle, plaintiff testified that his deficiency does not affect his ability to see (or to perform any other major life activities) in any respect. Moreover, it is undisputed that plaintiff routinely passed more basic color-vision tests. Given that plaintiff does not believe that he is ...


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