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Paraham v. Atriums Management Company, Inc.

United States District Court, D. Kansas

February 2, 2018

FREDERICK E. PARAHAM, Plaintiff,
v.
ATRIUMS MANAGEMENT COMPANY, INC. and TUTERA SENIOR LIVING AND HEALTH CARE, LLC, Defendants.

          MEMORANDUM & ORDER

          CARLOS MURGUIA, United States District Judge

         Plaintiff Frederick E. Paraham opposes defendants Atriums Management Company, Inc. (“Atriums”) and Tutera Senior Living and Health Care, LLC (“Tutera”)'s Motion for Summary Judgment (Doc. 37) on plaintiff's disparate treatment; failure to accommodate; and retaliation claims brought pursuant to the American's with Disabilities Act (“ADA”), as amended by the ADA Amendments Act of 2008 (“ADAAA”), 42 U.S.C. §§ 12101-12213. For the reasons explained below defendants' motion for summary judgment is denied.

         Also before the court is plaintiff Frederick E. Paraham's Motion for Leave to File Surreply (Doc. 46). Plaintiff seeks to file a surreply to supplement his summary judgment briefing. Generally, surreplies are not contemplated by the local or federal rules. However, they are sometimes allowed by the court's leave under rare circumstances, such as when new arguments or materials are raised in a reply. Liberally construing the parties' arguments, the court grants the motion to file a surreply.

         I. Uncontroverted Facts

         If not otherwise noted, the following facts are either uncontroverted or, for the purposes of this motion, are viewed in the light most favorable to plaintiff.

         A. Plaintiff's Relevant Pre-Atriums Employment History

         Plaintiff worked as a mover for 21 years. He injured his back in 2001 but continued to work as a mover until 2009. Plaintiff's expert witness disclosures suggest that plaintiff's non-retained expert Dr. Kristen N. Michael will testify about plaintiff's right shoulder pain and chronic lower back pain that she treated in 2015, and diagnosed as right shoulder joint pain, osteoarthritis of the acromioclavicular (“AC”) joint, osteoarthritis of the glenohumeral joint, mild degenerative disc disease, and chronic lower back pain. (Doc. 24.) Plaintiff's non-retained expert Dr. Suhas J. Samuel will also testify about his treatment of plaintiff's right shoulder pain in 2015. Non-retained experts Dr. Akin Cil and Dr. James Barnes will testify about their treatment, including surgery, of plaintiff's shoulder in 2015, as well as their diagnosis of plaintiff's shoulder condition. All of plaintiff's alleged disabilities predate his employment with Atriums.

         B. Plaintiff's Employment with Atriums

         Defendant Atriums hired plaintiff on September 1, 2011 to work as a maintenance assistant. The parties dispute whether defendant Tutera also employed plaintiff. Plaintiff worked with a maintenance supervisor, Joe Hernandez, and three other maintenance assistants. Mr. Hernandez was plaintiff's direct supervisor and Lucille Tutera, the Atriums' administrator, also had authority over plaintiff's work.

         Plaintiff was an at-will employee and signed a written job description on the day he was hired. The Maintenance Assistant Job Descriptions states: “The primary purpose of your job position is to maintain the grounds, facility, equipment in a safe and efficient manner . . . .” (Doc. 38-1, at 41.) A table listing job duties and responsibilities, equipment and supply functions, says the maintenance assistant will also: “assist others in lifting heavy equipment, supplies, etc., as directed or requested.” (Id., at 43.) The same table, under the safety and sanitation header, requires maintenance assistants to “wear and/or use safety equipment and supplies (e.g., back brace, mechanical lifts, etc.) when lifting or moving heavy objects.” (Id., at 42.) A table lists job “physical and sensory requirements (with or without the use of mechanical devices), ” including “[m]ust be able to push, pull, move, and/or lift a minimum of 50 pounds to a minimum height of 3 feet and be able to push, pull, move, and/or carry such weight a minimum distance of 25 feet.” (Id., at 45.) Mr. Hernandez testified that the maintenance team was responsible for keeping up the facility, plumbing, and janitorial work (taking out the trash, cleaning floors, buffing).

         Plaintiff completed a post-offer medical history questionnaire. Plaintiff testified that he did not believe he had to provide any personal medical information on a job application. But he filled out the form and signed it, answering that he did not have and had never had: a ruptured, bulging, or herniated disc; difficulty lifting, stooping, or bending; shooting pains from back through legs and/or from neck/upper back through arms; rotator cuff injury; shoulder pain; sore back; back pain; backache; difficulty moving back; knee injury; knee stiffness; or back stiffness. Plaintiff also stated that he had not received treatment for his back, neck, knees, or lower extremities from any healthcare provider. He stated he was not “aware of any condition or injury that might impair or limit [his] ability to work for this company.” (Id., at 11.) He also signed a Statement of Understanding that any “misrepresentation or omission of facts requested on this form or other employment documents will be sufficient cause for disciplinary action - up to and including discharge.” (Id.) Plaintiff did not request an accommodation on September 1, 2011, the day he filled out his job application. Plaintiff never requested an accommodation based on his shoulder/rotator cuff injury. Plaintiff claims that he did request an accommodation based on his back problems.

Plaintiff testified that
My request with the Atriums was not to have to unload moving trucks. We moved furniture all the time. I mean, the Atriums, you don't work in a facility that big and not - I mean, there was furniture owned by Lucielle Tutera. We had guest rooms that sometimes we would have to move to another guest room or whatever, but we would just pop it over on rollers. Everything we could roll. When you talk about going outside to unload a moving truck, like I told you before, that's just a whole new ball game.

(Id., at 18.)

         Plaintiff told Ms. Tutera on several occasions that he could not move furniture because of his back. Plaintiff never asked for a back support at work because he did not think it would do him any good. Plaintiff lifted heavy equipment while working for defendant Atriums, “like, drywall. I mean, everything that we moved was on rollers. That's what made it so easy. Drywall, plumbing equipment, like, cabinets. You know, I moved toilets. Just anything that you could - tile, bathroom tile, flooring, just anything that has to do with maintenance.” (Id., at 7.)

         Mr. Hernandez testified at his deposition that maintenance assistants do have to move furniture “any time it is needed. If somebody decides they want a guest apartment, that furniture has to be relocated.” (Id., at 32.) Mr. Hernandez testified that usually two maintenance workers would complete one of these moves, sharing the load on heavier items. He said “A lot of times with Fred, he would just go do everything. And I'm like, ‘Fred, ask for help.' You know, he tried to get it all himself.” (Id.) Mr. Hernandez testified that he did not like this about Fred because “I have been there so long I know what it takes . . . a lot of the furniture you can just lay over on top of a cart and wheel it. That's no big deal. But . . . if you got to move something, don't struggle to move something, ask for help.” (Id.)

         Mr. Hernandez testified that “I think I recall he may have took some time off and said his back was bothering him. But any time he would say anything, he'd say ‘I'm okay. I'm okay. I'm fine.' All the time.” (Id., at 33.) In a signed document, Mr. Hernandez stated “During casual conversation throughout his employment, Fred would mention to me that his back was aching, but he never requested any sort of accommodation or claimed that he could not perform any tasks because of it.” (Id., at 34.)

         C. The January 8, 2015 Moving Incident

         On January 8, 2015, a new resident was moving into the Atriums. Ms. Tutera noticed that the new resident was moving into the Atrium's smallest one-bedroom unit. The Atriums usually knows ahead of time when a new family is moving in and will let the maintenance team know if they need to assist with the move. Even when families have their own movers, the maintenance team “would characteristically go up and help move boxes or a piece of furniture or this or that. . . [there were] anywhere from four to six move-ins a month ..... not to ...


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