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Forge v. Sisters of Charity of Leavenworth

United States District Court, D. Kansas

September 6, 2019

Gary Forge, Plaintiff,
v.
Sisters of Charity of Leavenworth; and Kristina Rastorfer, Defendants.

          MEMORANDUM & ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         In this 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.[1] 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.

         This 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.[2]

         I. Facts

         The 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.

         SCL 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[3] 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.

         In 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 guaranteed."

         On 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)."

         On 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.[4] Ms. Rastorfer, however, interpreted Dr. Aberle's evaluation as a request from plaintiff for another 30-day extension of his leave.

         The 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.

         On 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.

         On 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.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         "Summary 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.

         The 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).

         III. ADA Claims

         In the 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.

         A. Termination and Failure-to-Accommodate

         The ADA 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)).[5] As will be explained, the court's analysis of these claims starts and ends with whether plaintiff requested a plausibly reasonable accommodation.

         Plaintiff 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.[6] 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 accommodation:

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 one.
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 ...


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