Tygrett v. City of Denver

MALON DEAN TYGRETT, Plaintiff, v. CITY AND COUNTY OF DENVER ACTING BYAND THROUGH ITS BOARD OF WATERCOMMISSIONERS a/k/a Denver Water, Defendant.

Civil Action No. 19-cv-00726-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 23, 2020

ORDER

Michael E. Hegarty, United States Magistrate Judge.

Plaintiff in this case was a senior equipment operator for Denver Water, with whom he was employed over twenty years. Denver Water terminated his employment on August 22, 2017, citing instances of misconduct, primarily rude and dangerous behavior toward the public and conflicts with his co-workers. Plaintiff contends that Denver Water discriminated against him because of his disability, failed to accommodate that disability, and terminated him in retaliation for his protected activity. Denver Water now moves for summary judgment on all claims. ECF 83.

FINDINGS OF FACT

The Court makes the following findings of fact viewed in the light most favorable to the Plaintiff, who is the non-moving party in this matter.

Plaintiff objects to numerous facts on the sole ground that they are supported by the affidavit of Tom Roode, chief of operations and maintenance at Denver Water from 2011 to the present, who Plaintiff argues relies on hearsay and cannot have personal knowledge of the facts he avers. The Roode affidavit explicitly states that it is based on personal knowledge, and under Fed. R. Civ. P. 56(e) and Fed. R. Evid. 602, that suffices. Therefore, I do not view Plaintiff's blanket objection as controverting the facts stated. However, I will assess whether, in each instance, Mr. Roode was in the position to have personal knowledge of the facts he presents. See Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) ("Under the personal knowledge standard, an affidavit is inadmissible if '"the witness could not have actually perceived or observed that which he testifies to.'" . . . Accordingly, at the summary judgment stage, 'statements of mere belief' in an affidavit must be disregarded.") (citations omitted).¹ Further, "'hearsay testimony that would be inadmissible at trial may not be included in an affidavit to defeat summary judgment.'" Li Zu v. Avalon Health Care, Inc., 806 F. App'x 610, 623 (10th Cir. 2020) (citation omitted).

1. Plaintiff worked for Denver Water for over 20 years. One of Plaintiff's primary job duties as a senior equipment operator was to drive a semi-truck with a trailer attached, also referred to as a "lowboy." The lowboy is very large and can be dangerous.

2. Denver Water received two complaints in 2014 concerning Plaintiff; the complaints came from customers who believed Plaintiff engaged in rude behavior. The complaints were documented in Plaintiff's 2014 performance evaluation, as follows: "Dean had two complaints in 2014 with customers that he was rude with them[.] [W]e did address the issue with Dean. [T]hisdid lower his rating from consistently exceeds to fully meets[.]" Plaintiff did not file an objection to this evaluation.

3. Any time Plaintiff had restrictions due to a work-related injury prior to 2015, Denver Water provided an accommodation, including light duty work in its warehouse.

4. Plaintiff suffered an on-the-job injury on March 4, 2015, when he slipped on ice at work while climbing into a loader. He injured his back, hip, neck, head, and sciatic nerve. Dr. Hugh Macaulay treated Plaintiff and placed him on restrictions following the incident.

5. Each of Plaintiff's restrictions following the March 4, 2015 injury were accommodated by Denver Water. Specifically, Denver Water accommodated Plaintiff by assigning him to a temporary position to drive a truck in the Fleet Department, which he was able to do without any issues. In addition, Plaintiff was placed on modified duty with varying weight and standing restrictions.²

6. Plaintiff was released from all restrictions on July 27, 2015 and placed back on restrictions on December 7, 2015.

7. In the fall of 2015, Plaintiff was counseled about a driving incident in which Denver Water asserted he acted aggressively, tailgated another driver, and blew his horn. Plaintiff denies he acted aggressively.

8. Plaintiff's 2015 performance evaluation documented that some Denver Water employees indicated they were uncomfortable in the working situation Plaintiff created because he "tends toworry about what others are and aren't doing" which had a "direct effect and negative impact on" Denver Water's goals.³ The evaluation rated Plaintiff as "fully meets standards."⁴

9. In January 2016, Plaintiff had a meeting with his supervisors and a nurse at Denver Water to discuss issues he was having with his job duties and to identify an appropriate accommodation. Following the meeting, Denver Water accommodated Plaintiff's needs by restricting his driving time to a maximum of thirty minutes at a time.

10. On February 17, 2016, Plaintiff had a follow-up visit with Dr. Macaulay. In the follow-up visit medical notes, Dr. Macaulay stated he told Plaintiff that Denver Water "had indicated a desire to work with [him]."

11. Plaintiff admitted that, on February 17, 2016, he had no reason to question the truthfulness of Denver Water's desire to work with him on restrictions and accommodations and that Denver Water had been working with him to date.

12. As of March 2, 2016, Dr. Macaulay stated that Plaintiff was on "[r]egular duty," with no restrictions noted. Dr. Macaulay told Plaintiff that if he had work restrictions, that would preclude him having a commercial driver's license (CDL), and that Plaintiff's job required having a CDL. Thus, Dr. Macaulay told Plaintiff "the best alternative for him was to continue [his] job without restrictions and try to work out some of the other issues."

13. Plaintiff did not ask explicitly for additional accommodations but wanted the job of equipment operator to avoid hurting his back. The equipment operator job responsibilities were not within Plaintiff's physical capabilities.

14. In 2016 and following the March 4, 2015 injury, Plaintiff applied for a Foreman position that he did not receive. However, even before his injury, Plaintiff had previously applied for such a position during the course of his employment and was never hired into same. Plaintiff conceded that part of the reason he never received the position in the past was because he "wasn't the greatest reader or speller." The individuals who became foremen were qualified.

15. During this timeframe, Plaintiff also applied for an operator position. Plaintiff admitted that he could not adequately perform the job duties of an operator because of his restrictions. Nevertheless, Denver Water offered Plaintiff a junior operator position. Plaintiff did not accept the position due to a three-dollar reduction of pay, and there were no other open positions at the time which would have been equal pay to Plaintiff's then-current position.

16. Plaintiff also applied for an inspector position but conceded that the person who received the position was qualified and a good, hard worker. Similar to the operator position, Plaintiff had applied for an inspector job prior to 2015 but was not hired into the position due to his lack of schooling.

17. Plaintiff applied for a position in the service department but, again, he conceded that he was not hired into the position because of his spelling and reading capabilities.

18. Denver Water was aware in August 2016, that its employee, Greg McCambridge, "expressed concern to the point of fear of [Dean Tygrett]," and indicated that Plaintiff "has regularoutbursts of anger that are directed at just about everyone." Plaintiff was aware that McCambridge expressed concern about him to the point of fear.⁵

19. Denver Water was aware in August of 2016, that its employee, Mark Cripps (Plaintiff's supervisor), indicated that Plaintiff "[c]reates an unsafe environment because he works way too fast" and that he has witnessed Plaintiff "blow up at people."

20. Denver Water was aware in August of 2016, that its employee, Gary Miller, reported that Plaintiff exhibited anger towards employees, got frustrated, and created an unpleasant environment.

21. Denver Water was aware in August of 2016, that its employee, Lisa Salazar, reported that Plaintiff exhibited frustration and can be loud.

22. Denver Water was aware in August of 2016, that its employee, Kenny Palumbo, reported that a few weeks earlier, he watched Plaintiff come "through the yard in a semi, going super fast, came around by the gate, stopped, [and] got out cussing and screaming . . . [H]e had to shut the gate, a Mortenson employee was surveying . . . Dean was waiving his hands and throwing the f-bomb five or six times directed at the Mortenson employee [and] [t]he employee moved the golf cart while Dean was still waiving his hands and throwing the f-bomb." Palumbo further reported that the way Plaintiff works "is not safe," that he "creates a negative environment" which no one wants to be around, and that "he has no consideration for safety."

23. Following the employee reports and an investigation into the incident, Denver Water held a corrective action conference with Plaintiff on August 24, 2016. Also on that date, JessicaThompson, a Denver Water occupational nurse who works with worker's compensation patients, advised Plaintiff's supervisor, Jack Tolmich, that Dr. Macaulay would soon be addressing whether Plaintiff had a need for permanent restrictions. Tolmich stated that if Plaintiff did have permanent restrictions, Denver Water would likely be unable to accommodate them.

24. A written "notice of corrective action conference" identified the following violations by Plaintiff of Denver Water policies: (1) violation of safe working practices or safety rules or regulations; (2) conduct which does or could result in a material impairment of the efficiency of the employee's work or the work of others; (3) disruptive behavior which includes vulgar, threatening, insulting or...