Jacobsen v. Dillon Cos.

JULIE JACOBSEN, Plaintiff,

v.DILLON COMPANIES, INC. d/b/a KING SOOPERS, Defendant.

Civil Action No. 10-cv-01944-LTB-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: February 28, 2012

LEWIS T. BABCOCK, JUDGE

ORDER

This matter is before me on cross motions for summary judgment filed by Plaintiff Julie Jacobsen [Plaintiff's Motion for Partial Summary Judgment - Doc # 66], and Defendant Dillon Companies, Inc. d/b/a King Soopers ("King Soopers") [Motion for Summary Judgment and Brief in Support - Doc #67]. Plaintiff seeks summary judgment in her favor on her sole remaining claim against King Soopers, her former employer, for failing to provide her with reasonable accommodations for her disability in violation of the Americans with Disabilities Act (hereinafter "ADA"), 42 U.S.C. § 12101, et seq. In its motion, King Soopers seeks judgment as a matter of law in its favor and, in turn, dismissal of this case. Oral arguments will not materially aid in the resolution of these motions. After consideration of the parties' briefs, and for the reasons stated below, I DENY both motions.

I. UNDERLYING FACTS

Plaintiff was hired as a Retail Investigator for King Soopers grocery stores on July 7, 2009. After completing her initial training, she began working full-time, as a probationary employee, at King Soopers stores in August 2009.

In September of 2009, Plaintiff was diagnosed with breast cancer. On or before September 18, 2009, Plaintiff informed her supervisor, Tom Conlin, of her diagnosis. On September 30, 2009, Plaintiff told Mr. Conlin that she needed to undergo surgery on October 2, 2009, for placement of a port through which she would receive chemotherapy for treatment of her cancer, and that she would not be able to report to work for the two weeks following her surgery - or until October 16, 2009.

Following her surgery, Dr. Stephen Johs faxed a Physician's Statement to Mr. Conlin on October 5, 2009, confirming that Ms. Plaintiff would not be able to return to work (as they had discussed) for the two weeks following her surgery, or until October 16, 2009. Mr. Conlin, in turn, sent this statement to Stephanie Bouknight, the Director of Labor and Employee Relations at King Soopers. At that time, Ms. Bouknight recommended that Plaintiff be terminated as soon as she returned to work on the basis that she was unable to "fulfill the terms of her probation while she is out."

On October 13, 2009, in a second Physician's Statement, Dr. Johs requested that Plaintiff be permitted one additional week off of work for recovery, or until October 23, 2009, and that she "may [need] time off for chemotherapy." After Mr. Conlin received the second statement, he spoke with his supervisor, Ms. Donna Colao, and they called Ms. Bouknight to discuss it. At that time Ms. Bouknight advised them to terminate Plaintiff before she returned to work. Mr. Conlin and/or Ms. Colao then conferred with the Director of Security regarding Ms. Bouknight's recommendation to terminate Plaintiff. The Director approved the recommendation. On October 15, 2009, Mr. Conlin called Plaintiff and terminated her employment with King Soopers.

Thereafter, Plaintiff filed this lawsuit. In her remaining claim for relief she asserts that King Soopers violated the ADA by terminating her without accommodating her disability. She seeks all damages available under the statute, including back-pay, front-pay, reinstatement to her position, emotional distress damages, compensatory damages to include medical bills and expenses, punitive damages, injunctive relief, attorney fees and costs, and expert witness fees.

II. STANDARD OF REVIEW

The purpose of a summary judgment motion under Fed. R. Civ. P. 56 is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Fed. R. Civ. P. 56(c) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Id. at 323; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir. 1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. U.S., 622 F.2d 516, 519 (10th Cir. 1980); Fed.R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c),except the pleadings themselves." Celotex Corp. v. Catrett, supra, 477 U.S. at 324.

If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Id. at 323. The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Id. at 252; Mares v. ConAgra Poultry Co., supra, 971 F.2d at 494. The parties' cross-motions must independently satisfy the requirements of Rule 56(c). Renfro v. City of Emporia, 948 F.2d 1529, 1534 (10th Cir. 1991)(cross-motions for summary judgment does not relieve court of obligation to determine if genuine issue of material fact exists).

III. LAW

The ADA prohibits discrimination against "a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). Such discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee." 42 U.S.C. § 12112(b)(5)(A). To establish a prima facie case of discrimination under the ADA, an employee must show: (1) she is disabled within the meaning of the ADA; (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) she was discriminated against because of her disability. Mason v. Avaya Comm., Inc., 357 F.3d 1114, 1118 (10th Cir. 2004).

IV. ANALYSIS

At issue is whether Plaintiff can make out her prima facie case. King Soopers does not dispute that Plaintiff is disabled within the meaning of the ADA, for the purposes of summary judgment determination. Rather, King Soopers contends that it is undisputed that Plaintiff is not qualified - both with or without reasonable accommodation - to perform the essential functions of the job held or desired, and thus it is entitled to summary judgment. Plaintiff argues the opposite - that the facts are undisputed that she was qualified for her job, but King Soopers discriminated against her by failing to make reasonable accommodations for her disability and/or by failing to engage in the ADA's interactive process to do so.

A. QUALIFIED INDIVIDUAL

The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Tate v. Farmland Industries, Inc., 268 F.3d 989, 992-93 (10th Cir. 2001)(quoting 42 U.S.C. § 12111(8)). Courts employ a two-part analysis to determine whether an individual is qualified:

First, the court determines whether the individual can perform the essential functions of the job. . . . Second, if (but only if) the court concludes that the individual is unable to perform the essential functions of the job, the court determines whether any reasonable accommodation by the employer would enable her to perform those functions.

Mason v. Avaya Comm., supra, 357 F.3d at 1116 (citing Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir. 2003) & 42 U.S.C. § 12111(8)).

Otherwise-Qualified

As an initial condition or prerequisite to performing the essential functions of a position,an individual must first satisfy "the requisite skill, experience, education and other job-related requirements of the employment position such individual holds . . .". Tate v. Farmland, supra, 268 F.3d at 993 (quoting 29 C.F.R. § 1630.2(m)); see also Wilkerson v. Shinseki, 606 F.3d 1256, 1263 (10th Cir. 2010)). King Soopers argues that Plaintiff was not "otherwise qualified" to perform the position of Retail Supervisor in that she was unable to complete her probationary period in order to demonstrate that she would be a successful Retail Investigator; specifically, that she could meet the productivity expectations of apprehending shoplifters. Thus, she did not meet the prerequisite requirement of successful completion of probation in order to be otherwise qualified for the position.

Plaintiff argues, in response, that successful completion of probation cannot be deemed a "job-related requirement" of a position. Such requirements are defined as "the prerequisites for the position, such as . . . the appropriate educational background, employment experience, skills, licenses, etc." App'x to 29 C.F.R. 1630, at 393 (EEOC Interpretive Guidance to the ADA, discussing § 1630.2(m)). See e.g. Wilkerson v. Shinseki, supra, 606 F.3d...