United States District Court, D. Kansas
STEVE F. SKERCE, Plaintiff,
TORGESON ELECTRIC COMPANY, Defendant.
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
Steve F. Skerce brings this action against his former
employer, Defendant Torgeson Electric Company, asserting a
litany of employment-related claims under federal and state
law, including: (1) interference with his right to leave and
retaliation under the Family Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601, et seq.
(Count I); (2) failure to accommodate under the Americans
with Disabilities Act (“ADA”), as amended, 42
U.S.C. §§ 12101, et seq. (Count II); (3) disability
discrimination under the ADA (Count III); (4) retaliation
under the ADA and Kansas Act Against Discrimination
(“KAAD”), K.S.A. §§ 44-1001, et seq.
(Count IV); and (5) age discrimination under the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621, et seq., and the Kansas Age
Discrimination in Employment Act (“KADEA”),
K.S.A. §§ 44-1111, et seq. (Count V). Doc. 37.
Defendant moves for summary judgment on each claim. Doc. 38.
following reasons, the Court grants Defendant's request
for summary judgment on Plaintiff's claims for FMLA and
ADA/KAAD retaliation, ADA failure to accommodate, ADA
disability discrimination (except as it pertains to
Plaintiff's diabetes), and age discrimination under the
ADEA and KADEA. But the Court denies Defendant's motion
with respect to Plaintiff's claims for FMLA interference
and ADA disability discrimination based on his diabetes.
hired Plaintiff in October 2013 as a General Journeyman
Electrician (“J1”). Doc. 37 at 2. As a J1,
Plaintiff's essential job duties with Defendant included
assembling, installing, and running wires or other electrical
components to construct functional electrical systems,
inspecting electrical systems for defects and to ensure
compliance with applicable codes and regulations, and
performing such work from ladders, scaffolds, and roofs. Doc.
39 at 4 ¶ 12; Doc. 49 at 7 ¶ 12.
assigned Plaintiff to various “projects” during
his employment. Projects are overseen by a foreman and the
general superintendent. Doc. 39 at 5 ¶¶ 16-17; Doc.
49 at 8 ¶¶ 16-17. A foreman is assigned to one
jobsite and is the immediate supervisor of the employees at
that site. Doc. 39 at 5 ¶ 16; Doc. 49 at 8 ¶ 16.
The general superintendent is above the foreman and oversees
multiple jobsites, assisting the foreman at each jobsite by
helping him run each site smoothly. Doc. 39 at 5 ¶ 17;
Doc. 49 at 8 ¶ 17.
2014, Defendant assigned Plaintiff to perform general
electrical work on the remodel of the Academy Sports and
Orscheln stores in Topeka, Kansas. Doc. 39 at 5 ¶ 14;
Doc. 49 at 7 ¶ 14. During the course of the remodel, the
assigned foreman-Todd Vandervelde-reported various issues
related to Plaintiff's performance to Defendant's
general superintendent, Brian Mack. Vandervelde told Mack on
more than one occasion that Plaintiff would not perform tasks
as instructed and that, if he wired something wrong,
Plaintiff would either claim he did not do the work or that
he had done what he was told. Doc. 39 at 6 ¶ 24.
later assigned Plaintiff to work on the remodel of a Dillons
store in Topeka under the supervision of foreman Jose Zesati.
Doc. 39 at 6 ¶ 26; Doc. 49 at 12 ¶ 26. On two or
three occasions, Zesati likewise complained to Mack about
Plaintiff's work performance. Doc. 39 at 6 ¶ 27.
And, on September 11, 2014, Plaintiff was written up for
cursing on the jobsite. Doc. 37 at 2. Plaintiff subsequently
admitted to Mack that he had cursed inside the store while
working. Doc. 39 at 7 ¶ 30; Doc. 49 at 13 ¶ 30.
this incident, Mack reassigned Plaintiff to a project at the
KBI's building in Topeka. Id. Plaintiff began
working at the KBI jobsite in mid-September 2014 under
foreman Greg Franken. Doc. 39 at 7 ¶ 33; Doc. 49 at 14
¶ 33. Shortly after his reassignment, on September 17,
2014, Defendant promoted Plaintiff to a Licensed Journeyman
Electrician (“J2”) position. Doc. 37 at 2; Doc.
39 at 7 ¶ 34; Doc. 49 at 14 ¶ 34. Between October
2014 and January 2015, several other employees told Franken
that Plaintiff's production and the quality of his work
on the KBI project were “below par” and did not
meet expectations for a J2 electrician. Doc. 39 at 8 ¶
36. Franken relayed those concerns to Mack. Id. at
8-9 ¶ 42.
the above-detailed complaints regarding his work performance,
during the course of his employment Plaintiff never received
a written performance evaluation from Defendant. Doc. 37 at
2. The only discipline Plaintiff received during his
employment was for cursing on the Dillons jobsite.
Plaintiff's Health Issues
case, Plaintiff raises allegations regarding a number of
medical conditions- including diabetes, high blood pressure,
knee and back pain, and depression-for which he requested
time off during his employment.
around July 3, 2014, while working on the Academy
Sports/Orscheln remodel, Plaintiff asked the project foreman
(Vandervelde) if he could leave work early because his
diabetes medication, combined with the heat, was making him
feel light-headed and dizzy. Doc. 39 at 17-18 ¶ 101;
Doc. 49 at 41 ¶ 101. Vandervelde allowed Plaintiff to
leave work early and did not require him to provide a
doctor's note justifying his leave. Doc. 39 at 18 ¶
102; Doc. 49 at 41 ¶ 102. Plaintiff left work early on
at least one other occasion in the summer of 2014 due to the
interaction of the heat and his diabetes medication. Doc. 39
at 18 ¶¶ 103, 105; Doc. 49 at 41-42 ¶¶
103, 105. Again, Vandervelde allowed the early departure and
did not require Plaintiff to submit any medical paperwork
related to the request. Doc. 39 at 18 ¶ 106; Doc. 49 at
42 ¶ 106.
assigned to the KBI project, Plaintiff again complained of
health issues-this time, high blood pressure. Doc. 39 at 18
¶ 107; Doc. 49 at 42 ¶ 107. The foreman of the KBI
jobsite, Franken, allowed Plaintiff to leave early but told
him that he would need to submit a doctor's note to
return to work. Id. Plaintiff produced a
doctor's note upon his return the next day. Id.
On or about December 15, 2014, while still at the KBI
jobsite, Plaintiff told Franken he was having issues with
high blood pressure, diabetes, joint pain, and depression.
Doc. 39 at 18-19 ¶ 108; Doc. 49 at 42 ¶ 108.
Plaintiff further explained that the cold temperatures were
affecting his knees and back, causing him difficulty climbing
up and down ladders and stairs. Id. Franken told
Plaintiff he “would have to work through it” and
asked him what he wanted to do. Doc. 39 at 19 ¶ 109;
Doc. 49 at 42-43 ¶ 109. Plaintiff inquired whether there
were “any kind of accommodations for taking time
off” and Franken advised Plaintiff to speak with Darla
Hamilton, who handled human resources for Defendant.
Id.; Doc. 49 at 47 ¶ 133; Doc. 53 at 13 ¶
subsequently met with Hamilton. Plaintiff asked Hamilton
whether Defendant had “disability insurance” that
“covered any kind of payment” or “would pay
[him] for [his] time off.” Doc. 39 at 19 ¶ 110.
Hamilton explained that “there was no paid time off,
” that there was nothing to give Plaintiff
“accommodation for time off, ” and that if
Plaintiff “took a reasonable amount of time off, that
there would not be any accommodations that could
ensure” his job. Doc. 39 at 19 ¶ 112; Doc. 49 at
43 ¶ 112. Hamilton asked Plaintiff how much time off he
was thinking of taking, and Plaintiff replied that he did not
know and would need to speak to his doctor. Doc. 39 at 19
¶ 113; Doc. 49 at 43 ¶ 113. Plaintiff asked
Hamilton about the FMLA but Hamilton told Plaintiff that
Defendant did not provide that and, further, that he needed
“to be careful about how much time [he] took off,
because there was nothing there that would protect [his]
job.” Doc. 39 at 19-20 ¶¶ 114-115; Doc. 49 at
43-44 ¶¶ 114-115.
2014 or early January 2015, Plaintiff took some days off work
due to his diabetes, knee and back pain, and depression. Doc.
39 at 20 ¶ 117; Doc. 49 at 44 ¶ 117. Plaintiff
provided a doctor's note to Franken to cover the days off
and Franken accepted the note as justification. Id.
Plaintiff did not submit a request for FMLA leave and
Defendant did not designate any of Plaintiff's time off
as FMLA leave. Doc. 39 at 20 ¶¶ 118-119; Doc. 49 at
44-45 ¶¶ 118-119.
Plaintiff's Elbow Injury
this time off, on January 29, 2015, Plaintiff injured his
left elbow at work. Doc. 37 at 2; Doc. 39 at 9 ¶ 47;
Doc. 49 at 22 ¶ 47. Plaintiff was diagnosed with a
contusion and a ruptured bursa sac on his left elbow and was
instructed to keep his arm in a sling. Doc. 39 at 10 ¶
49; Doc. 49 at 22 ¶ 49. Sometime after his injury,
Plaintiff met with Hamilton to discuss his elbow injury and
workers' compensation claim. Doc. 39 at 11 ¶ 56;
Doc. 49 at 24 ¶ 56. Defendant maintains an FMLA policy,
which provides that eligible employees may take up to 12
weeks of unpaid leave for a “serious health condition
of the employee which prevents him/her from performing the
essential functions of his/her job.” Doc. 39 at 3
¶ 6; Doc. 49 at 5 ¶ 6. However, although Plaintiff
was eligible to take FMLA leave due to his elbow injury,
Hamilton did not advise Plaintiff-either verbally or in
writing-that he was eligible for FMLA leave or any other
unpaid time off. Doc. 39 at 11 ¶ 58; Doc. 49 at 24
his injury, Plaintiff's health care provider imposed
various work restrictions. Doc. 39 at 10 ¶ 50; Doc. 49
at 22 ¶ 50. Defendant accommodated those restrictions by
having Plaintiff do light duty work, such as sweeping,
cleaning up, and moving ladders and spools of wire, among
other tasks. Doc. 39 at 10, 12 ¶¶ 54, 65; Doc. 49
at 23, 26 ¶¶ 54, 65. Defendant paid Plaintiff on
days when light duty work was available. Doc. 39 at 10-11
¶ 55; Doc. 49 at 23-24 ¶ 55. When no light duty
work was available, the workers' compensation insurer
paid Plaintiff's compensation. Id. On April 21,
2015, Plaintiff's doctor released him to return to full
duty. Doc. 37 at 2.
his April 21, 2015 doctor's appointment, Plaintiff left
Hamilton a voice message advising her that he was cleared to
return to full duty. Doc. 39 at 14 ¶ 78; Doc. 49 at 29
¶ 78. The next day, Plaintiff was told that Defendant
“would have to see what job site they were going to put
[him] on, to wait and see what they had available.”
Doc. 39 at 14 ¶ 79; Doc. 49 at 29 ¶ 79. But on
April 23, 2015-just two days after he was cleared to
return-Hamilton called Plaintiff to notify him that Defendant
was terminating his employment. Doc. 37 at 2; Doc. 39 at 14
¶ 80; Doc. 49 at 29 ¶ 80. Plaintiff did not receive
any prior notice that he would be terminated. Doc. 37 at 3.
Defendant maintains that Plaintiff was terminated as part of
a reduction in force (“RIF”), implemented due to
a work slowdown and reduced manpower needs, based on him
being identified as a substandard employee. Doc. 39 at 14-15
his termination, on August 13, 2015, Plaintiff filed a charge
of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Doc. 1-1. The EEOC issued
Plaintiff a notice of right to sue letter on October 26,
2017, and Plaintiff filed this action on January 24, 2018,
asserting claims for interference with his right to medical
leave, failure to accommodate, disability and age
discrimination, and retaliation. Doc. 1; Doc. 1-2; Doc. 37 at
12. Defendant now moves for summary judgment. Doc. 38.
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). In
applying this standard, courts must view the facts and any
reasonable inferences that might be drawn therefrom in the
light most favorable to the non-moving party. Henderson
v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir.
1994). “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to
the non-moving party, is such that a reasonable jury could
return a verdict for the non-moving party.” Bones
v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th
Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).