Opinion
Civil No. 2:03CV00587BSJ.
February 17, 2005
Scott M. Petersen, David N. Kelley, FABIAN CLENDENIN, A Professional Corporation, Salt Lake City, Utah, Attorneys for Defendant IPSC.
David L. Cooley, Attorney for Plaintiff.
ORDER GRANTING IPSC'S MOTION FOR SUMMARY JUDGMENT
Intermountain Power Service Corporation's ("IPSC") Motion for Summary Judgment (Docket Entry 18) came on for hearing before the Honorable Bruce S. Jenkins on December 2, 2004. Larsen was represented by David L. Cooley. Defendant was represented by Scott M. Petersen and David N. Kelley of Fabian Clendenin. Based upon the arguments presented at the hearing, careful consideration of the multiple memoranda and exhibits filed by both parties, the Court determines the following:
STANDARD OF REVIEW
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Richmond v. Oneok, Inc., 120 F.3d 205, 208 (10th Cir. 1997). "A disputed fact is `material' if it might affect the outcome of the suit under the governing law, and the dispute is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Richmond, 120 F.3d at 208.UNDISPUTED FACTS
Based upon the memoranda submitted by the parties, the following facts are undisputed. Plaintiff Brannick Larsen was hired by IPSC as a custodian in September 1985. In March 1987, he was promoted to the job of Maintenance Assistant, and in August 1990, to the position of C Operator. In September 1992, Larsen injured his leg in a work-related accident. Following treatment for his leg injury, Larsen was released to work without restriction. Being released to work without restriction did not mean that Larsen was completely free from complications related to his prior left leg injury. Larsen had lost the use of the peroneal nerve in his lower left leg. The biomechanical movements of Larsen's left leg were permanently altered. From the date of the injury through the present date, Larsen has suffered with chronic pain in his left leg.
Larsen returned to work at IPSC, as a C Operator, the same job title he had at the time of the accident, doing the same work as he had done before the accident. IPSC management, including Lowell Curtis, Keith Mangrum, Jon Finlinson, George Cross, Bob Davis, and S. Gale Chapman, were aware of these facts.
In December 1995, Larsen began complaining of pain in his left leg, foot, ankle, and hip. Complications related to Plaintiff's left leg injury became less and less manageable. In 1996, IPSC management informed all C Operators, including Larsen, that they would be required to complete on the job training for B Operator. IPSC management said that the C Operator position was going to be eliminated and that any C Operator that did not complete the on the job training would be taken off shift work and assigned cleaning tasks.
On or about February 12, 1996, Larsen was promoted to a B Operator position. The B Operator position required Larsen to work 12-hour rotating shifts to check on operating equipment on a regular schedule. He and all other B Operators alternated day and night shifts (rotating shifts). As a B Operator, Larsen was assigned to take readings from gauges and dials that monitor or indicate the operating level of mechanical, electrical, pneumatic, hydraulic and steam operated equipment. Larsen explained the essential functions of the B Operator job as follows:
The essential or non-marginal functions of a B-Operator include the following: operating equipment; walking through the assigned area checking the equipment; hanging or pulling a clearance; troubleshooting problems with the equipment; and cleaning up spills. The essential or non-marginal functions of a B-Operator include physical activities such as climbing ladders or stairs; shoveling; carrying and using various tools such as valve wrenches which can be large. Some of the valves are difficult to turn.
Shortly after his promotion to B Operator, Larsen began missing more work. Larsen missed seven shifts from January 1, 1996 through June 26, 1996. IPSC management frequently did not schedule operators to cover for those who were on vacation. IPSC management would only very rarely call in an operator on overtime to cover for an operator who had called in sick. IPSC management would normally not schedule an operator to cover for someone out for an extended illness.
On or about June 27, 1996, Larsen underwent gallbladder surgery. Thereafter, he missed approximately six weeks of work (June 27, 1996 through August 9, 1996). Larsen took short term disability leave during this period. Larsen returned to work for short period of time (less than three weeks), but then needed to take an additional eighteen days off to care for his wife and family. Larsen's wife had been hospitalized with a herniated cesarean section. Larsen returned to work on September 6, 1996.
Early in October 1996 (October 4th 5th), Larsen was instructed to help start a "1H Pulverizer" that had just been overhauled and needed to be placed in service. Larsen had questions about the readiness of the pulverizer to be placed back into service. When Larsen received answers to his questions, and after inspecting the pulverizer for readiness, after Larsen was satisfied that the pulverizer was safe to be placed back into service, then Larsen completed the assigned task. Thereafter, Larsen missed two days of work.
Larsen returned to work on October 11th and was assigned to "hang a clearance on the Ash Sluice Water pressure regulating valve." Larsen eventually performed the work. Thereafter, Larsen missed the last two "night shifts of the set." Larsen returned to work on October 15. At that time, IPSC told Larsen his use of sick leave was excessive. IPSC pointed out that after his leg injury and treatment, Larsen had been released to work without restriction. Larsen was indefinite about his needs for time off. IPSC explained that Larsen's excessive absences placed a burden on other workers who had to cover Larsen's responsibilities when Larsen failed to report to work and indicated that continued excessive use of sick leave would result in IPSC taking action. Larsen missed work the next day (October 16).
In addition to the October 15 meeting, IPSC's workers compensation coordinator, Lowell Curtis, discussed Larsen's absenteeism and health condition with him on several occasions. Mr. Curtis went to great effort to determine what job functions Larsen could and could not perform. Mr. Curtis discussed Larsen's condition in depth with Nathan D. Williams, M.D., IPSC's medical examiner, and with Joan Schofield of Pinnacle Risk Management, IPSC's disability insurance carrier. During many of these discussions with Mr. Curtis, Larsen indicated that when he worked a strenuous shift, he had difficulty returning to work due to pain. (Larsen Dep. at 56-57). Larsen said the pain affected his ability to rest and thereby made it more difficult for him to do his job. Larsen requested that Mr. Curtis give him authorization to receive pain management treatment. Other Operators and other Employees had been provided accommodation without a change in job title or reduction in pay.
On or about October 16, 1996, Mr. Curtis met with Bob Davis, Jon Finlinson and George Cross to discuss ways IPSC could accommodate Larsen in his job. Together, they decided to provide Larsen lighter work responsibilities and day shifts. IPSC classified Larsen as a C Operator. Shortly after the meeting, Mr. Curtis again contacted Dr. Williams to discuss Larsen's condition as well as the type of activities Larsen's condition prohibited him from performing. Mr. Curtis requested that Dr. Williams fax IPSC some recommendations. Later that day, Dr. Williams faxed his recommendations. That report notes:
Mr. Larsen has difficulties in climbing steps, prolonged walking, prolonged standing, and any climbing. He also has significant sleep disturbances associated with changing schedules, i.e. rotating shifts. Mr. Larsen's physical disabilities have plateau'd and I do not anticipate any significant improvement in either his ability to accommodate rotating shifts, his ability to alter his weightbearing capabilities or climbing capabilities. Mr. Larsen and I have discussed the inevitable fact that he will have deterioration with his condition over time, rather than improvement.
Based on Larsen's condition, Dr. Williams' recommended that Larsen "avoid stairs, avoid climbing, avoid prolonged standing, avoid walking, and . . . work straight day shifts." Based on the accommodation meeting earlier in the day and Dr. Williams' recommendations, IPSC held another meeting with Larsen. At that meeting, IPSC informed Larsen that he would be assigned to the C Operator position with several accommodations designed to fit Dr. Williams' recommendations. Among the accommodations provided were four, ten-hour day shifts. IPSC informed Larsen that the changes were made in hopes of improving Larsen's attendance.
IPSC provided a memorandum to Larsen that explained generally the accommodations Larsen was receiving. At that time, Larsen stated that his difficulty with his job was due to his pain, not the rotating shifts. However, Larsen also states that he suffers from chronic fatigue, depression and anxiety. The next day, Mr. Curtis prepared a memorandum outlining the duties of Larsen's C Operator job. In preparing the memorandum, Mr. Curtis compared information gathered from the several discussions with Larsen, Dr. Williams, and Ms. Schofield with a detailed analysis of the B and C Operator job functions. The new job was designed to accommodate Larsen's limitations.
As proposed, effective October 21, 1996, in an effort to help Larsen decrease his absenteeism and improve his performance, IPSC assigned Larsen to the new work schedule and job responsibilities. Larsen's new supervisors were Larry Purvis and George Cross. When Larsen arrived at work at approximately 7:00 a.m. on October 21, 1996, Mr. Cross explained to Larsen that his assigned tasks that day were mainly cleaning functions. They were not "emergency" jobs, and thus he could take a break as necessary for pain.
Later that day, Mr. Purvis called Mr. Cross and explained that Larsen complained he was having trouble with his job due to pain. Mr. Purvis said Larsen had done very little actual work, but had been "gathering materials." Mr. Cross met with Larsen and asked Larsen to prepare a written statement explaining his pain and what IPSC could do to help Larsen perform his job. Larsen repeatedly indicated that he could perform his new job, but not without great pain. Larsen prepared the requested statement as follows:
I, N. Brannick Larsen, have experienced difficulty in performing the job assignment that I was given this morning. The difficulty is pain that is caused in my left leg. The pain that I have experience is located in the following listed areas: front middle thigh; all of the back portion of the thigh; middle of the shin front and side; top middle of the foot from middle toe to bottom of ankle. All of the listed areas are part of my left leg.
I can be helped so that less pain would be experienced. As little walking from one location to another as possible would help. As little as possible bending over; either from a standing position or sitting position.
The next three days, October 22nd, 23rd, and 24th, Larsen called in sick. Larsen never returned to work at IPSC.
On October 28, 1996, Larsen's treating physician, Brent Jackson, M.D., filled out a Physical Restrictions form provided to him by Pinnacle Risk Management, IPSC's long-term disability insurer. On the form, Dr. Jackson stated that Larsen was restricted in every activity identified on the form. Dr. Jackson's recommended limitations included: no walking more than 30 minutes per day or more than 5 minutes at a time and no walking at all on uneven ground, no standing for more than 10 minutes at a time, no typing for more than 2 hours 30 minutes per day, no repetitive use of hand tools, no shoveling, no lifting more than 30 pounds, no operating equipment or machinery, no frequent bending, twisting or stooping, from a standing or sitting position, no climbing stairs or ladders, no overhead work, no squatting, no pushing, no sitting more than 30 minutes without changing position, no sweeping more than 30 minutes per day, and only from an erect position, no kneeling, and no pulling.
Furthermore, where the form asks for the estimated length of limitations, Dr. Jackson wrote "lifetime". Exactly eight years later, Dr. Jackson prepared an affidavit, dated October 28, 2004, stating that he used the word "lifetime" to describe his opinion of the duration of Larsen's complications related to Larsen's injury. Dr. Jackson filled out another form dated January 13, 1997. Dr. Jackson answered the question, "What is the estimated date limitations are expected to end?" with "lifetime". In 1997, Dr. Jackson indicated that the condition was progressive and permanent. In his 2004 affidavit, Dr. Jackson stated that his description of Larsen's limitations as "lifetime" was his opinion as to the duration of Larsen's complications related to his injury. Dr. Jackson indicated that Larsen was limited as described above as of October 26, 1998. As of January 13, 1997, Dr. Jackson did not know when the limitations were expected to end. Dr. Jackson never released Larsen to return to work.
On November 5, 1996, Larsen was evaluated by Jeff B. Chung, M.D., an independent medical examiner retained by Pinnacle Risk Management. As part of that evaluation, Dr. Chung reviewed and analyzed the C Operator job description, Larsen's medical records, and a Functional Capacity Assessment performed by Dell C. Felix, P.T. on October 31, 1996. Larsen states that he was in Chung's examination room for less than seven minutes. Larsen also states that Chung did not take x-rays in his own office, but used x-rays taken at other physicians' offices.
Based upon his evaluation, Dr. Chung concluded:
It should be emphasized at this time that the patient has expressed motivation not to work. The patient does not feel that he is able to work regardless of modifications made. Because of the patient's belief, I believe it is extremely improbable that the patient will be able to return to work in a functional environment.
Dr. Chung further concluded:
At this point, given the patient's current attitudes and beliefs that he is completely unable to work, I believe that no matter what accommodations are made by his employer the patient will find some way to sabotage such accommodation attempts.
On November 22, 1996, Larsen received a psychological evaluation by Darrell H. Hart, Ph.D. Dr. Hart reviewed Larsen's medical records and Dr. Chung's IME report. Dr. Hart also conducted a 2½ hour psychological evaluation in which Larsen was interviewed and tested. Based on his evaluation, Dr. Hart explained:
I do acknowledge, as has Dr. Chung, that the chances of finding an appropriate accommodation in his present employment setting would be extremely difficult. The air has been "poisoned". His paranoid sensitivities coupled with what may be peer group rejection and supervisory frustration will make a remarriage extremely difficult.
* * *
Acceptable accommodations on either side are not likely to be attained.
Larsen agreed with Dr. Hart's report.
On December 12, 1996, Larsen had no foreseeable release to return to work, had not worked since October 21, and IPSC terminated Larsen's employment, effective December 13, 1996. Wayne Spencer, president of Larsen's union and the person Larsen sought out to help him with his claims, testified that it was his belief IPSC terminated Larsen based on "personality conflict." Larsen received long-term disability benefits pursuant to IPSC's Long Term Disability Plan ("LTD Plan"). In order to qualify for disability benefits under the LTD Plan, Larsen had to demonstrate that he was "totally disabled" for more than 22 consecutive weeks.
The LTD Plan defines "totally disabled" for the first 24 months as being "unable to do the essential duties of your regular occupation, because of sickness or accidental injury." Furthermore, Larsen's then treating physician, Dr. Brent Jackson, noted on the physician's statement portion of Larsen's disability claim that the duration of Larsen's limitations are "lifetime" or "unknown." In addition, Larsen has qualified for and received Social Security disability benefits. Larsen qualified for and received workers compensation benefits based on a finding of "permanent total disability." During Larsen's workers compensation proceedings, Larsen, through legal counsel, entered into a Stipulated Agreement for a Tentative Finding of Permanent Total Disability and Order of Approval ("Workers Comp Agreement").
In that agreement, Larsen agreed to the following stipulation:
Plaintiff represents the he is unable to perform the essential functions of his job at IPSC. Respondent [IPSC] represents that plaintiff has not identified any reasonable accommodation that would enable him to perform the essential functions of his job at IPSC.
Larsen states that "totally disabled" under each definition (SSDI, workers compensation, and long-term disability insurance) means "[u]nable to perform the functions of your job at the time" "without accommodation." Larsen states IPSC should have allowed him to take time off whenever he needed it and IPSC should have created a full-time position for him as the coal yard control board operator, one of the assignments of a B Operator. All B Operators must do 11 different essential assignments, of which the coal yard control board operation is only one, or 9% of the total job.
Larsen filed a Charge of Discrimination with the UALD and EEOC on or about February 27, 1997.
CONCLUSIONS OF LAW
II. PRIMA FACIE CASE UNDER THE ADA.The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., prohibits an employer from discriminating against any person otherwise qualified, because of that person's disability. To establish a prima facie case of disability discrimination, a plaintiff must show: (1) that he is a disabled person within the meaning of the statute; (2) that he is qualified (that is, he is able to perform the essential functions of the job, with or without reasonable accommodation, which accommodation Larsen must identify); and (3) that IPSC terminated him under circumstances that give rise to an inference that the termination was based on Larsen's disability. See Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
A. Disability
A plaintiff must show (1) that he has a physical or mental impairment as defined by the ADA, and that (2) the identified impairment substantially limits a major life activity. See Pack v. Kmart Corp., 166 F.3d 1300, 1304 (10th Cir. 1999), cert. denied, 528 U.S. 811 (1999).
Larsen's complaints of pain throughout his body, especially in his left leg, as well as depression, anxiety, and difficulty sleeping satisfy the first prong. However, Larsen further has to show that his impairment significantly restricted his major life activity "as compared to the average person in the general population," taking into consideration certain factors, including "mitigating or corrective measures." Pack, 166 F.3d at 1306.
Larsen did not identify any "major life activity" that his problems limit, nor did he demonstrate that any limitation is substantial as compared to the general population. Accordingly, he has failed to establish the first prong of a prima facie case: that he is a disabled person within the meaning of the ADA.
B. Qualified Individual With A Disability
Section 42 U.S.C. § 12111(8) 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. . . ." (emphasis added). The "inquiry is not intended to second guess the employer or to require him or her to lower company standards." Milton v. Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995). "[I]t is the employer's province to define the job and the functions required to perform it." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1177 (10th Cir. 1999). The essential functions of the B Operator position include:
operating equipment; walking through the assigned area checking the equipment; hanging or pulling a clearance; troubleshooting problems with the equipment; and cleaning up spills. The essential or non-marginal functions of a B-Operator include physical activities such as climbing ladders or stairs; shoveling; carrying and using various tools such as valve wrenches which can be large. Some of the valves are difficult to turn.
1. Predicable attendance as an essential job function.
Larsen could not perform the essential job function of predictable attendance. In Mason v. Avaya Communications, Inc., 357 F.3d 1114 (10th Cir. 2004), the court held that the plaintiff was not a qualified individual with a disability because she could not perform the essential functions of her job with or without a reasonable accommodation. The essential function Mason was unable to perform was regular physical attendance. Id. The court quoted the Fourth Circuit stating, "a regular and reliable level of attendance is a necessary element of most jobs." Id. at 1120 (citing Tyndall v. Nat'l Educ. Centers, Inc., 31 F.3d 209, 213 (4th Cir. 1994).
Attendance was also at issue in Buckles v. First Data Resources, Inc., 176 F.3d 1098 (8th Cir. 1999), where the plaintiff's sinusitis caused him to struggle with attendance for which he was eventually terminated. The plaintiff obtained a jury verdict under the ADA. The employer appealed and the Eighth Circuit reversed in favor of the employer.
The Eighth Circuit explained: "In the context of the ADA, we have recognized that `regular and reliable attendance is a necessary element of most jobs.'" Id. at 1100-1101 (quoting Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir. 1998)). The court further stated: "[The defendant] is no exception and considers attendance to be an `essential function,' as demonstrated by the detailed attendance policies and procedures." Id. at 1101. "Because of [the plaintiff's] frequent absences, he was unable to meet an essential function of his employment." Id.; see Tyndall, 31 F.3d 209, 213 ("An employee who cannot meet the attendance requirements of the job at issue cannot be considered a `qualified' individual protected by the ADA.").
Here, the B Operator job was performed with 12-hour, rotating shifts requiring regular predictable attendance. The identified functions cannot be completed if the employee is not present to perform them in some predictable fashion. See Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996).
IPSC explained that when Larsen was unpredictably absent, it placed a burden on other workers who had to cover Larsen's responsibilities. Despite his understanding of a B Operator's essential job functions, including predictable attendance, Larsen was unable to perform them, admitting that he had no sense of what time off he would need. On October 21, 1996, Larsen left work and never came back.
2. Essential functions of walking, climbing stairs and ladders, shoveling, and moving heavy equipment and valves.
Additionally, Larsen could not perform many other B Operator essential job functions; namely, walking, climbing stairs and ladders, shoveling, and moving heavy equipment and valves.
First, Larsen's treating physician, Dr. Jackson, gave Larsen a medical release from work on October 22, 1996. In a long term disability insurance form, Dr. Jackson indicated that Larsen was unable to climb stairs and ladders and that he could not walk more than thirty minutes per day or more than five minutes at a time. Dr. Jackson also concluded that Larsen could not shovel or use hand tools, mobile equipment, or machinery. Dr. Jackson concluded that Larsen was restricted in every activity related to the B Operator position. As of January 13, 1997, approximately one month after Larsen's termination, Dr. Jackson was still unable to state when Larsen would be able to return to work.
Second, Dr. Williams recommended that Larsen avoid stairs, climbing, walking, and prolonged standing. Dr. Williams also noted that he did not anticipate any significant improvement in Larsen's condition. Instead, Dr. Williams anticipated deterioration in Larsen's condition over time.
Third, on October 21, 1996, while performing modified responsibilities, Larsen experienced still more pain, and subsequently prepared a written statement explaining his difficulties in performing his job. In that statement, Larsen explained that he was having difficulty due to pain and requested that he not have to walk or bend over, either from a standing or sitting position. After preparing the statement, Larsen left work and never returned.
3. Admission of inability to perform the essential functions of the job.
Finally, Larsen admitted that he was unable to perform the essential functions of his job on three occasions.
First, in a stipulation he signed in a related workers compensation case, Larsen stipulated that he was unable to perform the essential functions of his job at IPSC, and that he had not identified any reasonable accommodation that would enable him to perform the essential functions of his job at IPSC. The stipulation was as follows:
Plaintiff represents the he is unable to perform the essential functions of his job at IPSC. Respondent [IPSC] represents that plaintiff has not identified any reasonable accommodation that would enable him to perform the essential functions of his job at IPSC.
Under Utah's worker's compensation statute, to qualify for benefits on the basis of total disability, Larsen had to show he was "not gainfully employed," he had "an impairment . . . that limit[s] [his] ability to do basic work activities," that he was prevented from "performing the essential functions of the work activities for which the employee has been qualified," and that he "cannot perform other work reasonably available, taking into consideration the employee's age, education, past work experience, medical capacity, and residual functional capacity." Utah Code Ann. § 34A-2-413(1)(c). Larsen's statement that he was totally disabled in order to meet the requirements of Utah's worker's compensation statute contradicts his current ADA claim, that he is qualified to performed the essential functions of a B Operator.
Second, Larsen also represented that he was unable to perform his essential job functions in order to secure SSDI benefits. Similar to worker's compensation, to qualify for Social Security benefits Larsen must show "inability to engage in any substantial gainful activity by reason of any . . . physical or mental impairment. . . ." 42 U.S.C. § 423(d)(1)(A). Furthermore, the act requires that the "impairment" be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A).
While the U.S. Supreme Court has determined that a person receiving social security disability benefits is not per se barred from bringing an action under the ADA, it nevertheless stated, "[t]o survive defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim." Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 798 (1998). "[A]n ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation." Id. at 806. In opposing the motion for summary judgment, Larsen failed to explain the contradiction.
Third, Larsen represented to IPSC's long-term disability carrier, that he was "totally disabled" in order to qualify for long-term disability benefits. To qualify for LTD benefits, Larsen had to show that he was "unable to do the essential duties of [his] regular occupation, because of sickness or accidental injury." Larsen made unqualified claims of "total disability" to Social Security and the LTD carrier, claims that contradict his current position and for which he has failed to provide a sufficient explanation. Thus, by his own admissions and assertions, he is not a "qualified disabled individual" under the ADA and fails to establish a prima facie case. See Motley v. New Jersey State Police, 196 F.3d 160, 166-67 (3rd Cir. 1999) (concluding that the Larsen failed to meet his burden of explaining the apparent inconsistencies between his SSDI position and his ADA claim), cert. denied, 529 U.S. 1087 (2000).
C. No Accommodation Would Have Allowed Larsen to Perform the Essential Functions of His Job.
Larsen's claim that he could have performed the essential functions of his job if IPSC had provided him the accommodations he requested, namely that he be assigned to work only as the Coal Yard Control Room Operator fails because: (1) Larsen did not request a reasonable accommodation under the ADA, and (2) Larsen would not have performed his essential job functions regardless of the accommodation.
1. Reasonable request for accommodation.
Larsen failed to make a reasonable request for accommodation. "[A]n employee's request to be relieved from an essential function of [his] position is not, as a mater of law, a reasonable or even plausible accommodation." Mason, 357 F.3d at 1122. "In fact, the ADA does not even require an employer to modify an essential function of an existing position in order to accommodate a disabled employee." Id. at 1123.
In Milton v. Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995), the court explained: "[a]n employer is not required by the ADA to reallocate job duties in order to change the essential functions of a job. An accommodation that would result in other employees having to work harder or longer hours is not required."
Larsen, like the Milton employee, wanted IPSC to change the essential functions of his job, to make walking, climbing stairs and ladders, shoveling, moving heavy equipment and valves, and predictable attendance merely marginal to his job. Furthermore, when Larsen was absent, other workers had to work harder. As the Tenth Circuit has consistently stated, such accommodations are not required under the ADA. "An accommodation that eliminates the essential function of the job is not reasonable." Smith v. Blue Cross Blue Shield of Kansas, Inc., 102 F.3d 1075, 1076 (10th Cir. 1996), cert. denied, 522 U.S. 811 (1997).
2. Larsen would sabotage any IPSC accommodation.
IPSC made multiple attempts to accommodate Larsen even without a reasonable request. IPSC's workers compensation coordinator, Lowell Curtis, discussed Larsen's absenteeism and health condition on multiple occasions. Mr. Curtis went to great lengths to try to determine what job functions Larsen could and could not perform.
In addition to discussing potential accommodations with Larsen, Mr. Curtis discussed potential accommodations with both Dr. Williams and Joan Schofield, a representative from IPSC's disability insurer. Mr. Curtis reviewed the requirements of the B and C Operator positions and determined, based on the restrictions recommended by Dr. Williams, that Larsen might be able to improve his attendance and performance if he could perform a modified C Operator position. This job would allow Larsen day shifts (four ten-hour days), instead of rotating twelve-hour shifts. Furthermore, the C Operator job would not require the strenuous walking, climbing, stooping, and moving of heavy equipment the B Operator job required. Finally, performing the modified C Operator job would provide Larsen with the chance to rest when needed in order to deal with the pain Larsen constantly claimed he felt. The B Operator job, on the other hand, did not provide that luxury.
All of these accommodations were offered to Larsen in spite of the fact that the ADA did not require them. Furthermore, the four ten-hour days were changed to five eight-hour days as yet another accommodation to Larsen. Notwithstanding the accommodations, after one day of working at his accommodated position, Larsen complained of more pain from walking and stooping. Larsen left work that day and never returned. On November 5, 1996, Larsen was given an examination by Jeff P. Chung, M.D. Dr. Chung concluded that Larsen would be unable to work regardless of modifications made.
A couple of weeks later, Larsen was given an extensive psychological examination by Darrell H. Hart, Ph.D. Dr. Hart also examined Larsen's medical records and job description, and agreed with Dr. Chung's assessment, indicating that acceptable accommodations on either side were not likely to be obtained. Larsen agreed with Dr. Hart's assessment. No possible accommodation IPSC could have provided would have succeeded in helping Larsen perform his essential job functions. Accordingly, Larsen is not a "qualified disabled individual" under the ADA.
D. Larsen's Termination.
The third prong of a prima facie case requires Larsen to demonstrate that he was terminated under circumstances that give rise to an inference that the termination was based on Larsen's disability. Morgan, 108 F.3d at 1323. IPSC made multiple attempts to accommodate Larsen even though the law did not require the accommodations IPSC was willing to provide. Larsen unpredictably missed work, and when he did show up, he constantly complained of pain that made it difficult or impossible for him to perform his job. The undisputed facts show that it was Larsen's inability to perform his job due to pain, his unpredictable absences, and his eventual abandonment of his job that lead to the termination of his employment.
III. PRETEXT UNDER THE ADA.
"After establishment of a prima facie case, the burden shifts to the employer to offer a legitimate nondiscriminatory reason for its employment decision." Morgan, 108 F.3d at 1323. IPSC claims it terminated Larsen because of his inability to perform his essential job functions, including predictable attendance. These proffered reasons fulfill IPSC's burden in this regard. See Morgan, 108 F.3d at 1324 (concluding that claim of unscheduled absenteeism is sufficient to meet employer's burden).
IPSC having met its burden, "the burden then reverts to the plaintiff to show that `there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual — i.e., unworthy of belief.'" 736 P.2d at 635; Morgan, 108 F.3d at 1323. The undisputed evidence points to the fact that IPSC terminated Larsen because of his inability to perform his job functions and his unpredictable absences. Larsen does not dispute that he was unable to perform his job's essential functions. Larsen does not dispute that predictable attendance was a problem. He acknowledged that he had no sense of his time-off needs and by October 21, 1996, Larsen left work never to return. IPSC spoke with Larsen several times about his problems, explained its expectations to Larsen and provided him with multiple accommodations in an attempt to improve his performance. His performance, however, did not improve.
Moreover, Larsen has admitted on multiple occasions and to several different parties that he is totally disabled and unable to perform his essential job functions. Larsen's own doctor and two independent health care providers indicate that Larsen's situation is such that no accommodation would enable him to perform his essential job functions. There is no evidence upon which a fact finder could conclude that IPSC's legitimate nondiscriminatory reasons for terminating Larsen were pretextual.
IV. LARSEN'S RETALIATION CLAIM.
During oral argument, counsel for plaintiff indicated that plaintiff was no longer pursuing his claim for retaliation and, therefore the Court does not address this claim.
IT IS HEREBY ORDERED that IPSC's Motion for Summary Judgment is granted and Larsen's claims are dismissed with prejudice and upon the merits, each party to bear its own costs and attorney fees incurred herein.