United States District Court, D. Kansas
FREDERICK E. PARAHAM, Plaintiff,
ATRIUMS MANAGEMENT COMPANY, INC. and TUTERA SENIOR LIVING AND HEALTH CARE, LLC, Defendants.
MURGUIA, United States District Judge
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.
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.
otherwise noted, the following facts are either
uncontroverted or, for the purposes of this motion, are
viewed in the light most favorable to plaintiff.
Plaintiff's Relevant Pre-Atriums Employment
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.
Plaintiff's Employment with Atriums
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.
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).
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.)
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.)
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
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.)
The January 8, 2015 Moving Incident
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 ...