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Skerce v. Torgeson Electric Co.

United States District Court, D. Kansas

August 13, 2019

STEVE F. SKERCE, Plaintiff,



         Plaintiff 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.

         For the 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.

         I. BACKGROUND[1]

         A. Plaintiff's Employment

         Defendant 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.

         Defendant 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.

         In 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.

         Defendant 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.

         Following 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.

         Despite 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. Id.

         B. Plaintiff's Health Issues

         In this 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.

         On or 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.

         While 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 ¶ 133.

         Plaintiff 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.

         In late 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.

         C. Plaintiff's Elbow Injury

         After 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 ¶ 58.

         Following 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.

         D. Plaintiff's Termination

         After 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 ¶¶ 82-83.

         Following 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.

         II. STANDARD

         Summary 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)).

         III. ...

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