United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
lawsuit, plaintiff Gary Forge alleges that his former
employer, defendant Sisters of Charity of Leavenworth
("SCL"), violated the Americans with Disabilities
Act ("ADA"), as amended by the ADA Amendments Act
of 2008 ("ADAAA"), 42 U.S.C. § 12101 et seq.,
and the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621 et seq., by
terminating his employment and then failing to rehire him on
the basis of his disability and/or age. Plaintiff further
alleges that SCL violated the ADA when it failed to provide a
reasonable accommodation for his disability and when it
retaliated against him for requesting an accommodation by
terminating his employment and by failing to rehire him.
matter is presently before the court on the parties'
cross-motions for summary judgment on plaintiff's
failure-to-accommodate claim under the ADA and
defendants' motion for summary judgment on all remaining
claims as well as its mitigation of damages defense. As will
be explained, plaintiff's motion for summary judgment on
his failure-to-accommodate claim (doc. 46) is denied and
defendants' motion for summary judgment (doc. 48) is
granted in part and denied in part. Specifically, the court
denies SCL's motion for summary judgment regarding
plaintiff's failure-to-rehire claims and its mitigation
defense and grants summary judgment in favor of defendants on
all other claims.
following facts are uncontroverted, stipulated in the
pretrial order, or related in the light most favorable to the
nonmoving party. Plaintiff Gary Forge began working for SCL
as a power plant operator in 1989. At all times pertinent to
this lawsuit, defendant Kristina Rastorfer has been the human
resources director of SCL. The last day that plaintiff worked
as a power plant operator was July 6, 2016. Plaintiff was
scheduled to work on July 7, 2016 but he contacted his direct
supervisor, Mike Vornholt, to notify him that he was having
medical problems. Ultimately, plaintiff was diagnosed with
necrotizing fasciitis, a flesh-eating bacterial condition. In
July 2016, plaintiffs treating physician, Dr. Nicholas
Aberle, signed an FMLA certification estimating that
plaintiffs period of incapacity would extend at least through
October 1, 2016.
granted plaintiffs request for 12 weeks of FMLA leave
beginning in July 2016. Plaintiff exhausted his FMLA leave on
October 5, 2016. SCL's employee handbook provides that
SCL employees may request a personal leave of absence by
completing a request form and that SCL "may grant"
such requests in "very special circumstances." The
record reflects that SCL's standard practice is to deny
requests for leave that extend for longer than 6 months,
regardless of whether the employee has available sick time or
Paid Time Off On October 4, 2016, plaintiff reached out
to Ms. Rastorfer to inquire about extending his leave of
absence. SCL agreed to the request and granted him a 30-day
"Personal Leave of Absence" to provide time for
long-term disability claim processing and for additional
recovery time. In her letter confirming that agreement, Ms.
Rastorfer further stated:
The Personal Leave of Absence will be granted for a 30-day
period from 10/6/16-11/6/16. At the end of those 30 days, we
agreed to evaluate your return to work status and, if needed,
grant a one-time extension of the Personal Leave of Absence
for an additional 30 days.
early November, plaintiff notified Ms. Rastorfer that he
required additional recovery time and needed a 30-day
extension of his leave. On November 6, 2016, SCL granted
plaintiff a 30-day extension of leave, effective from
November 6, 2016 to December 6, 2016. In her letter
confirming the extension of leave, Ms. Rastorfer advised
plaintiff that they would evaluate his return to work status
at the end of the extension, but that "further
extensions of your Personal Leave of Absence are not
November 25, 2016, plaintiff sent a letter to Ms. Rastorfer
requesting another 30-day extension, through January 6, 2017.
In that letter, plaintiff stated that he was "still
recovering from a serious illness resulting in a
disability" and that he was not able to provide "a
specific date for return to work in light of continuing
medical treatment, including therapy." Plaintiff
estimated a return-to-work date of January 6, 2017 "at
which time medical reevaluation may be necessary."
Plaintiff also contacted Sister Jean Ann Panisko, SCL's
Community Treasurer, to request the extension. Plaintiff
indicated to her that "if he had one more month, that
would be sufficient." In a December 6, 2016 phone call
to plaintiff, Ms. Rastorfer granted plaintiffs request for an
extension of leave through January 6, 2017. In her follow up
letter confirming the extension, Ms. Rastorfer indicated that
the parties had agreed that plaintiff, no later than December
30, 2016, "would provide the Sisters of Charity with a
physician's note stating when, and if, he/she anticipates
your return to work." Ms. Rastorfer also wrote,
"The Sisters of Charity do not expect to hold your
position open past January 6, 2017 due to staffing needs
within the Power Plant department and due to the amount of
time you have been on leave (6 months)."
December 30, 2016, Dr. Aberle faxed SCL an Evaluation for
Work Release that did not release plaintiff to return to work
on or before January 6, 2017. Dr. Aberle's evaluation
indicated his belief that plaintiff "has recovered
approximately 90% of the way." Further, Dr. Aberle
"anticipated that [plaintiff] would be released for full
duty with no restrictions on February 6, 2017." The
evaluation also indicated that plaintiff "should
continue physical therapy until then" and that a follow
up medical evaluation should occur in 4 weeks. Plaintiff may
have reached out to Ms. Rastorfer to verify that she got the
information from Dr. Aberle but did not otherwise contact SCL
about an extension of leave or his continued
employment. Ms. Rastorfer, however, interpreted Dr.
Aberle's evaluation as a request from plaintiff for
another 30-day extension of his leave.
record reflects that Ms. Rastorfer and Sister Panisko
discussed the doctor's evaluation and whether to grant
another leave request. Sister Panisko testified that SCL
ultimately decided to decline another extension for a variety
of factors, including that the doctor's evaluation did
not state that plaintiff could return to work on February 6,
2017; that plaintiff had already been given 6 months of
leave; and that the power plant staff had been "doing
lots of overtime." Sister Panisko testified that she and
Ms. Rastorfer together made the decision to terminate
plaintiff's employment after deciding that they would no
longer grant additional extensions of leave. On January 6,
2017, Ms. Rastorfer called plaintiff and notified him that
his employment was terminated. After that time, SCL presented
a settlement agreement and release to plaintiff which
included a "no reapply" provision. Plaintiff
declined to sign that agreement.
February 20, 2017, plaintiff sent to Ms. Rastorfer a release
from Dr. Aberle indicating that plaintiff had been released
to return to work with no restrictions on February 2, 2017.
In his note, plaintiff stated:
I can now come back to work. I know before you said my
position at the Power Plant would not be held for me, but is
my job still open? If it is, or there is another job for me,
I would like to have it. So please call or fax me if or when
I can come back to work.
March 1, 2017, plaintiff and Ms. Rastorfer spoke on the
telephone and plaintiff recorded the conversation. In that
conversation, Ms. Rastorfer advised plaintiff that SCL had an
"open position" for a power plant operator and that
plaintiff was "more than welcome to apply, fill out an
application or come in and fill one out or email your
resume." Ms. Rastorfer indicated that plaintiff would be
required to send in his resume or submit a formal application
for the position and then go through an interview process.
Ms. Rastorfer reiterated to plaintiff that he could reapply
but that he would be "treated like any other
applicant" in terms of the hiring process. The
transcript of this phone call indicates that the parties
primarily discussed plaintiffs potential pay, seniority and
PTO balance upon rehiring and that the conversation ended
when Ms. Rastorfer agreed to "research the pay
question" and call plaintiff back with "a solid
answer." The record is silent as to whether Ms.
Rastorfer called plaintiff back and plaintiff never submitted
his resume or a formal application. He has not worked since
his employment was terminated. In 2017 and 2018, he received
social security disability insurance (SSDI) benefits.
facts will be provided as they relate to the specific
arguments raised by the parties in their submissions.
Summary Judgment Standard
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.
legal standard does not change if the parties file
cross-motions for summary judgment. Each party has the burden
of establishing the lack of a genuine issue of material fact
and entitlement to judgment as a matter of law. Atlantic
Richfield Co. v. Farm Cr. Bank, 226 F.3d 1138, 1148
(10th Cir. 2000).
pretrial order, plaintiff asserts several ADA claims against
SCL. Plaintiff alleges that SCL terminated plaintiffs
employment based on plaintiff's disability; failed to
accommodate his request for additional leave time to recover
from his disability; retaliated against plaintiff by
terminating his employment after he requested an
accommodation; and failed to rehire plaintiff after he was
cleared to return to work based on his disability and/or in
retaliation for requesting an accommodation. SCL moves for
summary judgment on all claims. As will be explained, summary
judgment is granted in favor of SCL on all ADA claims except
plaintiffs failure-to-rehire claims.
Termination and Failure-to-Accommodate
makes it unlawful for an employer to discriminate against a
"qualified individual on the basis of disability."
42 U.S.C. § 12112(a). A "qualified individual"
is "an individual who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or
desires." Id. § 12111(8). SCL does not
dispute that plaintiff had a disability. And the parties do
not dispute that plaintiff was unable to perform his job
without accommodation at the time his employment was
terminated. Thus, plaintiffs termination claim and his
failure-to-accommodate claim both turn on the issue of
whether SCL violated the ADA by failing to accommodate
plaintiff's disability. The Tenth Circuit has established
a three-part prima facie test for failure-to-accommodate
claims: An employee must show that he or she is disabled;
that he or she is "otherwise qualified"; and that
he or she "requested a plausibly reasonable
accommodation." Punt v. Kelly Servs., 862 F.3d
1040, 1050 (10th Cir. 2017) (quoting Sanchez v.
Vilsack, 695 F.3d 1174, 1177 (10th Cir.
2012)). As will be explained, the court's
analysis of these claims starts and ends with whether
plaintiff requested a plausibly reasonable accommodation.
identifies only one possible accommodation for his disability
at the time he was fired-an additional 30-day leave of
absence following the expiration of his FMLA leave and
following the extended 3 months of personal leave that SCL
had provided to him. The bulk of the parties' briefs are
focused on the issue of whether the leave of absence
requested by plaintiff is a reasonable accommodation within
the meaning of the ADA. In Robert v. Board of County
Comm `rs of Brown County, 69lF.3dl2ll (10th Cir.
2012), the Circuit defined the parameters of reasonableness
with regard to a leave of absence as a reasonable
There are two limits on the bounds of reasonableness for a
leave of absence. The first limit is clear: The employee must
provide the employer an estimated date when she can resume
her essential duties. See e.g., Cisneros v. Wilson,
226 F.3d 1113, 1130 (10th Cir. 2000); Rascon v. U.S. West
Communications, Inc., 143 F.3d 1324, 1334 (10th Cir.
1998). Without an expected end date, an employer is unable to
determine whether the temporary exemption is a reasonable
The second is durational. A leave request must assure an
employer that an employee can perform the essential functions
of her position in the "near future."
Cisneros, 226 F.3d at 1129 (quotation omitted).
Although this court has not specified how near that future
must be, the Eighth Circuit ruled in an analogous case that a
six-month leave request was too long to be a reasonable
accommodation. Epps v. City of Pine Lawn, 353 F.3d
588, 593 (8th Cir. 2003).
Id. at 1218. In Robert, the Tenth Circuit
recognized that a "brief leave of absence for medical
treatment or recovery can be a reasonable
accommodation," but affirmed the district court's
grant of summary judgment on a failure-to-accommodate claim
where the plaintiff remained unable to perform the essential
functions of her position after a lengthy leave of absence,
including 12 weeks of FMLA leave and an additional 3 to 4
weeks beyond that time. Id. at 1214. Because the
Circuit found no evidence in the record that the plaintiffs
employer "had any estimation of the date [plaintiff]
would resume the fieldwork essential to her position" .
. . "the only potential accommodation that would allow
[plaintiff] to perform the essential ...