Burks v. Crown Beverage Packaging LLC

MOTION for Summary Judgment

W.D. Wash.July 3, 2018

MOTION FOR SUMMARY JUDGMENT (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Honorable Ronald B. Leighton UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA RICHARD BURKS, Plaintiff, vs. CROWN BEVERAGE PACKAGING, LLC, Defendant. Case No. 3:17-CV-05304-RBL DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Oral Argument Requested NOTE ON MOTION CALENDAR: 7/27/18 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 1 of 49 MOTION FOR SUMMARY JUDGMENT - i (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TABLE OF CONTENTS I. MOTION....................................................................................................................................1 II. INTRODUCTION .....................................................................................................................1 III. UNDISPUTED MATERIAL FACTS .......................................................................................3 A. Plaintiff’s Employment Background at Crown’s Olympia Plant. .......................................3 B. Job Duties of the Night Shift Production Supervisor...........................................................3 C. 2011 – 2014: Plaintiff’s Inexperience in the Can-Manufacturing Industry Results in Increasingly Negative Performance Reviews. .................................................................5 D. January 13, 2015: Plaintiff is Hospitalized for a Heart Condition and Placed on Short Term Disability. .........................................................................................................5 E. July – August 2015: Plaintiff Undergoes Surgery for an Implantable Cardioverter Defibrillator; Plaintiff Learns the Olympia Plant May Interfere with his ICD and Shares That Information with HR Manager Lena Beach.....................................................6 F. October – November 2015: Plaintiff Indicates Desire to Return to Work in January 2016, but Notes He is Not Yet Medically Cleared; The Parties Investigate Testing Plant Environment for EMI. ...................................................................................7 G. January 2016: Plaintiff Requests Return to Work Paperwork and Crown Pays to Conduct the EMI Survey Plaintiff Requested. .....................................................................8 H. February 2, 2016: Crown Receives Survey Results; Survey is Sent to Boston Scientific for Additional Analysis at Dr. Razak’s Recommendation. .................................9 I. March 15, 2016: Dr. Razak Reviews BSA and Provides a Return to Work Authorization Expressly Conditioned on Plaintiff’s Ability to Maintain the Distances Identified in the BSA While Performing His Job and Conditions in the Plant Remaining Completely Unchanged. .........................................................................10 J. March – May 2016: Crown Keeps Plaintiff Informed of Decision Making Process.........12 K. Crown Determines That Plaintiff Cannot Maintain the Recommended Distances in Executing His Supervisor Job Duties. ...........................................................................13 L. Dr. Razak Agrees With Crown’s Expert That Plaintiff is Subject to a Significant Risk of Severe Harm When Working Closer than the Recommended Safe Distances. ...........................................................................................................................16 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 2 of 49 MOTION FOR SUMMARY JUDGMENT - ii (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 M. Crown Investigates Viability of Any Accommodations That Would Allow Plaintiff to Safely Perform His Job Duties. .......................................................................17 N. Crown Terminates Plaintiff’s Employment. ......................................................................18 IV. STANDARD OF REVIEW .....................................................................................................19 V. ARGUMENT ...........................................................................................................................19 A. Crown Did Not have an Obligation to Accommodate Plaintiff Because He Is Not a Qualified Individual. .......................................................................................................20 1. Plaintiff’s Essential Job Functions Required Him to Be Closer Than the Recommended Safe Distances in the BSA. .................................................................20 2. Plaintiff Could Not Perform the Essential Functions of His Job With or Without Reasonable Accommodation. ........................................................................23 B. Dr. Razak’s Conditioning Plaintiff’s Release On The Olympia Plant Environment Remaining Unchanged Would Have Posed Additional Undue Burden On Crown. ..........30 C. Plaintiff’s Presence in the Olympia Plant Posed a Direct Threat to Himself and Others. ................................................................................................................................31 D. Plaintiff Does Not Have an Independent Cause of Action for Failure to Engage in the Interactive Process; Regardless, Crown Engaged Plaintiff in Good Faith. .................35 1. Crown Did Not Have a Legal Obligation to Engage Plaintiff in the Interactive Process Because No Accommodation Would Have Enabled Him to Perform the Essential Functions of His Position. ......................................................................36 2. The Facts Demonstrate Crown Engaged in the Interactive Process Irrespective of Plaintiff’s Failure to Request Accommodation. ......................................................37 IV. CONCLUSION ........................................................................................................................40 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 3 of 49 MOTION FOR SUMMARY JUDGMENT - iii (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TABLE OF AUTHORITIES Page(s) Cases Allen v. Pacific Bell, et al., 348 F.3d 1113 (9th Cir. 2003) ...........................................................................................37, 39 Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999) ...............................................................................................25 Atkins v. Salazar, 677 F.3d 667 (5th Cir. 2011) ...................................................................................................32 Basith v. Cook Cnty., 241 F.3d 919 (7th Cir. 2001) ...................................................................................................27 Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007) .............................................................................................20, 21 Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130 (7th Cir. 1996) ...................................................................................................38 Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995) ...................................................................................................21 Bohl v. City of Sparks, 320 Fed. Appx. 770 (9th Cir. 2009) .........................................................................................24 Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284 (10th Cir. 2000) ...............................................................................................27 Buskirk v. Apollo Metals, 307 F.3d 160 (3d Cir. 2002).....................................................................................................31 Chevron U.S.A. Inc., v. Echazabal, 536 U.S. 73 (2002) .......................................................................................................31, 32, 35 Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001) .............................................................................................20, 21 Darnell v. Thermafiber, Inc., 417 F.3d 657 (7th Cir. 2005) ...................................................................................................34 Dedman v. Pers. Appeals Bd., 98 Wash. App. 471 (1999) .......................................................................................................21 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 4 of 49 MOTION FOR SUMMARY JUDGMENT - iv (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Deering v. Lassen Cmty. Coll. Dist., 2011 WL 202797 (E.D. Cal. Jan. 20, 2011) ............................................................................19 Dey v. Milwaukee Forge, 957 F. Supp. 1043 (E.D. Wis. 1996) ........................................................................................30 Donahue v. Consolidated Rail Corp., 224 F.3d 226 (3d Cir. 2000)...............................................................................................26, 33 EEOC v. Schneider Nat’l, Inc., 481 F.3d 507 (7th Cir. 2007) ...................................................................................................33 EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103 (9th Cir. 2010) ...........................................................................................24, 38 EEOC v. Wal-Mart, 477 F.3d 561 (8th Cir. 2007) ...................................................................................................21 Emerson v. Northern States Power Co., 256 F.3d 506 (7th Cir. 2001) ...................................................................................................27 Fey v. State, 174 Wash. App. 435 (2013) .........................................................................................21, 25, 35 Fredenburg v. Contra Costa Cnty. Dep’t of Health Servs., 172 F.3d 1176 (9th Cir. 1999) .................................................................................................25 Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000) ....................................................................................................30 Hale v. WellPinit School Dist. No. 49, 2011 WL 2474511 (Wash. App. Jun. 23, 2011) ......................................................................36 Hall v. United States Postal Serv., 857 F.2d 1073 (6th Cir. 1988) .................................................................................................27 Harper v. Wallingford, 877 F.2d 728 (9th Cir. 1989) ...................................................................................................19 Hayes v. Walmart Stores, Inc., 781 F. Supp. 2d 1080 (D. Or. 2011) ........................................................................................36 Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997) ...............................................................................................27 Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128 (9th Cir. 2001) .................................................................................................24 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 5 of 49 MOTION FOR SUMMARY JUDGMENT - v (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Hutton v. Elf Atochem N.A., Inc., 273 F.3d 884 (9th Cir. 2001) .......................................................................................32, 33, 34 Kelley v. Amazon, Inc., 2013 WL 6119229 (E.D. Wash. Nov. 21, 2013) .....................................................................20 Kramer v. Tosco Corp., 233 Fed. Appx. 593 (9th Cir. 2007) .........................................................................................35 Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040 (8th Cir. 2005) .................................................................................................37 McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92 (2d Cir. 2009).......................................................................................................35 McDaniels v. Group Health Co-op., 57 F. Supp. 3d 1300 (W.D. Wash. 2014) .................................................................................20 Miller v. Glen Miller Prod., Inc., 454 F.3d 975 (9th Cir. 2006) ...................................................................................................19 Milton v. Scrivner, Inc., 53 F.3d 1118 (10th Cir. 1995) ...........................................................................................26, 30 Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1 (2d Cir. 1999).........................................................................................................25 Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996) ...................................................................................................34 Nall v. BNSF Railway Co., 2017 WL 607126 (S.D. Tex. Feb. 14, 2017) ...........................................................................34 Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999) .................................................................................................28 Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002) ...................................................................................................28 Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999) (en banc) ...............................................................................33 In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010) ...................................................................................................19 Osborne v. Recreational Equip. Inc., 196 Wash. App. 1048 (2016) .............................................................................................28, 35 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 6 of 49 MOTION FOR SUMMARY JUDGMENT - vi (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Powers v. USF Holland, Inc., 667 F.3d 815, 824 (7th Cir. 2011) ...........................................................................................33 Rivera v. Philip Morris, Inc., 395 F.3d 1142 (9th Cir. 2005) .................................................................................................19 Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012) ...........................................................................................26, 36 Snapp v. United Transportation Union, 889 F.3d 1088 (9th Cir. 2018) ...........................................................................................35, 36 Snyder v. Medical Service Corp. of Eastern Washington, 98 Wash. App. 315 (1999) .................................................................................................21, 28 Stephenson v. United Airlines, Inc., 9 Fed Appx. 760 (9th Cir. 2001) ..............................................................................................26 Stone v. City of Mt. Vernon, 118 F.3d 92 (2d Cir. 1997).......................................................................................................29 Summers v. A. Teichert & Son, 127 F.3d 1150 (9th Cir. 1997) .................................................................................................36 Swonke v. Sprint Inc., 327 F. Supp. 2d 1128 (N.D. Cal. 2004) ...................................................................................36 Turco v. Hoechst Celanese Corp., 101 F.3d 1090 (5th Cir. 1996) ...........................................................................................26, 33 US Airways, Inc., v. Barnett, 535 U.S. 391 (2002) ...........................................................................................................24, 39 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) .................................................................................................20 Wurzel v. Whirlpool Corp., 482 F. Appx. 1 (6th Cir. 2012).................................................................................................34 Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080 (9th Cir. 2002) .....................................................................................37, 38, 39 Statutes 29 U.S.C. § 2611 et. seq.................................................................................................................19 42 U.S.C. § 12111(8) ...............................................................................................................20, 21 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 7 of 49 MOTION FOR SUMMARY JUDGMENT - vii (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 42 U.S.C. § 12111(10) .............................................................................................................28, 30 42 U.S.C. § 12113(a)-(b) ...............................................................................................................31 RCW 49.78 et seq. .........................................................................................................................19 Other Authorities 29 C.F.R § 1630.2(n) .........................................................................................................20, 21, 22 29 C.F.R. § 1630.2(o) ....................................................................................................................25 29 C.F.R. § 1630.2(p)(2)(v) .....................................................................................................26, 28 29 C.F.R § 1630.2(r) ......................................................................................................................32 Fed. R. Civ. P. 56(a) ......................................................................................................................19 WAC 162-22-075...........................................................................................................................28 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 8 of 49 MOTION FOR SUMMARY JUDGMENT - 1 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. MOTION Defendant respectfully moves the Court for an Order granting summary judgment on all of Plaintiff’s claims. This Motion is supported by the following Memorandum of Points and Authorities, the Court’s file, and the Declarations of Jennifer Nelson (“Nelson Decl.”), Dan Joanis (“Joanis Decl.”), Mark Riley (“Riley Decl.”), and Lena Beach (“Beach Decl.”) filed concurrently herewith. II. INTRODUCTION “[I]f we’re playing the game of incidence and probabilities, it’s very hard to play Russian roulette with somebody’s life.” Plaintiff’s surgeon, Dr. Eathar Razak, used this analogy to describe why he would never permit Plaintiff to return to his former job as a Supervisor at Crown Cork & Seal, Inc.’s manufacturing facility in Olympia, Washington if the job’s requirements would cause him to come close enough to any electromagnetic energy-emitting machinery in that plant that could interfere with the Subcutaneous Implantable Cardioverter Defibrillator (“ICD”) he implanted in Plaintiff’s chest. Whether to return Plaintiff to work and risk death or injury, or terminate Plaintiff’s employment, was the unfortunate decision Defendant faced after Dr. Razak surgically implanted the ICD—which is indisputably susceptible to dangerous, even deadly, “shocks” when in close proximity to the dozens of pieces of manufacturing equipment at Defendant’s facility. While difficult, when it became apparent after extensive analysis that it was impossible to ensure Plaintiff could safely perform the essential functions of his position, Defendant made the morally correct decision to terminate his employment. Defendant’s decision is also the legally correct one. By regulation, Defendant is explicitly entitled to deference as to what does and does not constitute an “essential function.” The facts in this case (as evidenced by the relevant job descriptions and testimony from Plaintiff, the individual holding Plaintiff’s former position, and the former plant manager) plainly demonstrate that the essential functions of Plaintiff’s position required him to work within the Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 9 of 49 MOTION FOR SUMMARY JUDGMENT - 2 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 proscribed unsafe distances from the electromagnetic energy-emitting equipment at Defendant’s plant. Indeed, Plaintiff unequivocally admitted that his job “effectively required” him to be close to the machines at issue. Because Plaintiff’s release to return to work was conditioned on Plaintiff’s ability to maintain the necessary safe distances, he is not a “qualified individual” as a matter of law, which means his ADA and WLAD claims must fail. As an alternative theory, Plaintiff claims Defendant failed to engage him in the interactive process. However, that theory must also fail because neither the Ninth Circuit nor Washington recognize an independent cause of action for failing to engage in the interactive process; the obligation to engage in the interactive process is merely part of the duty to provide reasonable accommodation. Here, Plaintiff plainly admits that he did not request any accommodation other than returning to work. This “accommodation” was neither feasible nor required. Regardless of whether Defendant had the legal obligation to engage in the interactive process, the evidence also shows that Defendant did, in fact, do so—communicating weekly with Plaintiff for 16 months in an effort to determine whether and when it was safe for Plaintiff to return to work. Before terminating Plaintiff, Defendant—of its own volition—explored whether it was feasible to install “shields” to block electromagnetic interference from the dangerous equipment. However, that accommodation would not have worked because (1) Plaintiff still would not have been able to perform his essential functions; (2) the accommodation would have been futile from a logistical standpoint; and (3) the cost and adverse impact associated with installing shields in the plant would have created an undue burden for Crown. Lastly, the undisputed evidence in this case demonstrates that Plaintiff was a “direct threat” to himself. Plaintiff’s surgeon testified that his presence within the recommended unsafe distances posed a risk of “catastrophic” consequences to Plaintiff, which would have been ever- present were he to continue working for Crown. Federal courts across the country have held that employers are not required to carry the heavy burden of continuing to employ individuals whose Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 10 of 49 MOTION FOR SUMMARY JUDGMENT - 3 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 presence at work endangers their own well-being. That analysis informed Defendant’s tough, but necessary, decision to terminate Plaintiff’s employment. III. UNDISPUTED MATERIAL FACTS A. Plaintiff’s Employment Background at Crown’s Olympia Plant. Crown hired Plaintiff in 2011 as a Night Supervisor at its Olympia, Washington can manufacturing facility (the “Olympia plant”). Declaration of Jennifer A. Nelson in Support of Defendant’s Motion for Summary Judgment, Exhibit 1 (Richard Burks Deposition (“RB”) 30:15- 16, 31:13-14).1 The Olympia plant operates 24 hours per day, 7 days per week, 52 weeks per year, producing approximately 1,400,000,000 cans per year.2 Nelson Decl., Ex. 9, at 2; Deposition of Dan Joanis (“DJ”) 32:18-23. “There [are] electrical motors and power systems throughout the facility.” Deposition of Mark Riley (“MR”) 19:22-23. In particular, there are approximately 72 different machines throughout the Olympia plant that are used in the can manufacturing process. Joanis Decl., ¶5. B. Job Duties of the Night Shift Production Supervisor. At all relevant times, Crown’s “Supervisor” job description applied to Plaintiff. RB 40:20-23; see also Nelson Decl., Ex. 9. Plaintiff understood that the job description summarized the requirements of his position, and he does not dispute that anything stated in the job description was part of his supervisory duties. RB 46:13-18. The job description contains a list 1 Unless otherwise specified, all of the exhibits and references to deposition testimony are attached to the Nelson Declaration. 2 The can manufacturing industry is extremely competitive. Joanis Decl. ¶4. Margins are slim. Id. To remain competitive and profitable, Crown must be very efficient in its operations. Id. This requires the Olympia plant to keep its operations running with as little disruption and interference as practically possible. Id. This includes, but is not limited to, minimizing time spent maintaining, repairing, and replacing the manufacturing machines, and keeping production on schedule. Id. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 11 of 49 MOTION FOR SUMMARY JUDGMENT - 4 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 of generalized responsibilities,3 as well as necessary work experience.4 See Nelson Decl., Ex. 9. In addition, the job description lists the physical requirements necessary to perform the duties of the Supervisor position.5 The Supervisor job description is “accurate in a broad sense, but not in a specific sense. [I]t does not encompass all the activities that are necessary to perform the job and manage the facility.” MR 31:18-21; see also RB 40:20-23. The Supervisor position is a very active job; it requires being on the Olympia plant floor “as much as possible.” MR 30:5-13. Supervisors walk an average of 10 miles per 12-hour shift. MR 26:1-6. Minimal time is spent in the office; the majority of the time is spent walking the plant floor; overseeing production status and employee safety; ensuring product quality; and making sure the plant is operating efficiently. MR 30:5-13. The position also requires the Supervisor to be able to respond to every part of the plant at any given time. DJ 24:3-10. The Supervisor must serve as the first responder to address any emergency, monitor employee safety, analyze particular pieces of equipment, and/or attend to any other quality or efficiency issue. MR 30:5-22. In other words, the Supervisor “finds himself 3 The Supervisor’s generalized job duties include, but are not limited to, the following: responsibility for the overall direction and coordination of a production team in the manufacturing of aluminum cans; plans, organizes, coordinates, and directs the activities of team members, the manning of the team, and the operational processes of the plant …; plans, organizes, coordinates, and directs the general activities and efforts of the team in safety, quality, production, waste reduction, and training & development; trains team members (through testers/trainers) in the technology, work methods, SOP’s, procedures, and processes of their assignments; expedites production, material, etc. for product being delayed or alters schedules to meet unforeseen conditions; conducts and/or directs daily observations and weekly audits to monitor safe work practices, unsafe conditions, quality of product, production, housekeeping, etc.; initiates measures to improve safe work practices, production methods, quality of product, working conditions, and equipment performance or efficiency; enforces company policies, safety regulations, plant norms/policies, and team norms; responsible for all required or assigned paperwork and reports; and other duties, responsibilities, or roles may be assigned by the Production Manager or the Management Team. Nelson Decl., Ex. 9, at 1. 4 The Supervisor work experience requires a high participative management style to work with self-managed work teams; a high degree of technical skills and knowledge; ability to diagnose or troubleshoot complex or technical malfunctions; experience in operation of production equipment; and set up, maintenance, and repair of production machines & equipment. Nelson Decl., Ex. 9, at 1. 5 Specifically, the position’s necessary physical requirements include, among other things, to regularly stand and walk; use hands to finger, handle, or feel objects, tools, or controls; reach with hands and arms; occasionally climb or balance; occasionally work near moving mechanical parts; and occasional exposure to high precarious places. Nelson Decl., Ex. 9, at 2. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 12 of 49 MOTION FOR SUMMARY JUDGMENT - 5 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 in very … different areas of the operation of the plant and could be summoned to anywhere in the plant [for] various reasons.” DJ 51:13-21. C. 2011 – 2014: Plaintiff’s Inexperience in the Can-Manufacturing Industry Results in Increasingly Negative Performance Reviews. Plaintiff’s job with Crown was his first foray into the can-manufacturing industry. RB 29:3-30:16. Plaintiff’s inexperience (and corresponding lack of understanding of his job requirements) was evidenced by his last three performance reviews. For example, in his 2012 review, his then-supervisor commented: “Richard has had some difficulties adapting to the can making environment. . . . Over the course of the year, I have spent time working with Richard through face-to-face meetings, supervisor skills training, and moving him to day crew for direct coaching by veteran supervisors and interaction with management.” Beach Decl., Ex. 1. Similarly, Plaintiff’s 2013 performance review noted that he was “still fairly unfamiliar with the process lingo and seems mechanically challenged. His outlook on production problems appears to come almost entirely from the prospective [sic] of his crew with no personal opinion. I am getting some signals that his crew would appreciate a more involved leadership style.” RB 60:7- 24; Nelson Decl., Ex. 11. Finally, in 2014, his supervisor noted in relevant part: Richard joined Crown 3.6 years ago and represented his qualifications as an “experienced professional manager with exceptional communication and people skills.” Unfortunately, he has not lived up to those expectations and continues to struggle…. His understanding of the can making process to date is not acceptable which is frustrating his peer[s] and eroding his position as a leader. Joanis Decl., Ex. 1; Nelson Decl. Ex. 10. D. January 13, 2015: Plaintiff is Hospitalized for a Heart Condition and Placed on Short Term Disability. The last day Plaintiff was present for work at Crown was on January 13, 2015. RB 98:2- 4. On his way to work that day, he felt pain and numbness on his left side. RB 98:9-99:12. Human Resources Manager Lena Beach suggested that he go to the emergency room, which he did. Id. Plaintiff was ultimately diagnosed with dilated cardiomyopathy. Id. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 13 of 49 MOTION FOR SUMMARY JUDGMENT - 6 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff’s diagnosis required him to take prescription medications and wear a life vest6 for six months, during which his physician recommended that Plaintiff entirely stop working. RB 99:19-100:25. Upon his diagnosis, Crown granted Plaintiff the medical leave of absence he requested.7 RB 102:6-10, 265:2-4. Plaintiff was also eligible for—and received—one year of Crown’s short term disability (STD) benefits. RB 109:17-23. E. July – August 2015: Plaintiff Undergoes Surgery for an Implantable Cardioverter Defibrillator; Plaintiff Learns the Olympia Plant May Interfere with his ICD and Shares That Information with HR Manager Lena Beach. Plaintiff underwent surgery to receive an implantable cardioverter defibrillator (ICD) on July 23, 2015. RB 108:9-17 Dr. Eathar Razak performed the surgery. RB 109:4-5. Shortly after the surgery, Beach and Plaintiff began communicating about whether Plaintiff felt able to safely return to work.8 RB 112:12-114:10; 125:6-24. Around the same time, Plaintiff contacted the manufacturer of Plaintiff’s ICD, Boston Scientific, to gather additional information about his ICD and to inquire whether he could safely return to work. RB 128:6- 129:5. Chuck Donahue, a Boston Scientific representative, inquired about the Olympia plant work environment and—after Plaintiff described its industrial nature and equipment—opined that there was a possibility that the plant could interfere with Plaintiff’s ICD, but that the only way to be sure was to conduct a survey of the electromagnetic energy at the plant. RB 128:13- 130:24. Boston Scientific also sent a letter to Dr. Razak regarding the general compatibility of Plaintiff’s ICD with electromagnetic fields commonly encountered in the workplace. Nelson Decl., Ex. 13. 6 The life vest Plaintiff was required to wear is a garment with heart monitors on the front, shock pads in the back, and a battery attachment. RB 103:23-104:7. Plaintiff was required to wear the vest 23.5 hours per day. Id. 7 There is no dispute that no one at Crown made negative comments about Plaintiff’s medical leave. RB 265:5-7. Nor was Plaintiff ever told that he couldn’t take medical leave. RB 265:8-11. In fact, Plaintiff was unable to “articulate what conduct [he] [thought] was problematic” with regard to his claims that Crown interfered with his medical leave rights. RB 264:8-25. 8 This sort of communication between Beach and Plaintiff was not uncommon. As Plaintiff testified, the two communicated regularly about his condition and ability to return to work. RB 52:4-8; 107:22-108:8. Plaintiff felt that Beach’s communications with him were appropriate and that she seemed concerned about his well-being. RB 125:6-24. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 14 of 49 MOTION FOR SUMMARY JUDGMENT - 7 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 On August 6, 2015, Plaintiff sent Beach Boston Scientific’s letter and his patient discharge instructions, which contained information about areas and things to avoid, and risks and dangers associated with his ICD. RB 131:11-17; 139:1-140:13. The patient discharge instructions advised Plaintiff to “[s]tay away from heavy equipment that has very strong magnetic fields or strong electric fields.” RB 141:3-142:12. F. October – November 2015: Plaintiff Indicates Desire to Return to Work in January 2016, but Notes He is Not Yet Medically Cleared; The Parties Investigate Testing Plant Environment for EMI. Beach continued to maintain regular contact with Plaintiff after his surgery and after he sent Boston Scientific correspondence to her. RB 262:8-18. On October 6, 2015, Beach emailed Plaintiff: “Hi Richard, I haven’t heard from you in a while and want to find out how you are doing? Are you hearing anything on your end about you[r] limitations to return to work? Give me a call when you get a chance.” Nelson Decl., Ex. 14. After a follow up email from Beach, Plaintiff responded on October 15, 2015, and apologized for his lack of communication.9 Id. Approximately one month later, on November 16, 2015, Plaintiff sent Beach a quote from a third party vendor, Keystone Compliance, that performs EMI surveys in the workplace. RB 134:10-135:1. Beach informed Plaintiff that she would send the quote to her superiors, and did so. RB 144:9-15; 192:8-12. Indeed, Plaintiff testified that there was ample communication between him and Crown related to their collective efforts to return him to work. RB 217:18- 218:174. Plaintiff and Beach communicated weekly from January 2015 through the remainder of his employment, specifically regarding his ability to safely return to work. RB 262:8-18; 217:18-218:22; 231:6-233:3; see also Beach Decl., Ex. 3. 9 In that same email, Plaintiff communicated to Beach that his primary care physician, Dr. Marse McNaughton, advised him to be patient with the timing of his return to work due to Plaintiff’s enlarged heart. RB 133:2-134:9. Specifically, Dr. McNaughton’s biggest concern was that Plaintiff did not “rush back to work”; he wanted Plaintiff to take the time necessary to strengthen his heart and to stay away from stressful situations. RB 136:16-137:20. Nonetheless, Plaintiff told Beach that he thought he would be able to return to work by the end of December 2015 or the first or second week of 2016. RB 133:2-134:8. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 15 of 49 MOTION FOR SUMMARY JUDGMENT - 8 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 G. January 2016: Plaintiff Requests Return to Work Paperwork and Crown Pays to Conduct the EMI Survey Plaintiff Requested. On January 4, 2016, Plaintiff asked Beach to send him release to work forms to submit to his physician. RB 192:8-12. Beach sent Plaintiff a “Return to Work” form on January 7, 2016. RB 192:20-25. Plaintiff returned the form one week later, signed by Dr. Razak. RB 194:4-12; Nelson Decl., Ex. 15. It stated, “From an ICD standpoint, Patient can return to work without limitations,” as of January 13, 2016. Id. Plaintiff requested a call the next day to coordinate his return. Id. However, the release did not state that Plaintiff could perform his job duties and whether Plaintiff could safely work in any degree of proximity to the numerous machines emitting electromagnetic energy without dangerous interference with his ICD. In fact, as Dr. Razak testified, Dr. Razak did not intend for the January 13, 2016 letter to be a “clearance” to return to work; rather, it simply meant that Plaintiff’s wound had healed – not that it was safe for him to return to work. Deposition of Eathar Razak (“ER”) 67:5-68:11. After Crown received the January 13 note, Dr. David Spratt (Crown’s contracted medical consultant10) contacted Dr. Razak to clarify the conditions of the release and to determine whether Dr. Razak believed Plaintiff could safely return to work while performing his Supervisor job duties. DS 7:16-21; 8:3-13; 24:5-28:10; ER 104:16-105:24; Perpetuation Deposition of Eathar Razak (“ER II”) 111:10-25. Over the course of multiple phone calls, Dr. Razak conveyed to Dr. Spratt that, while he admittedly did not understand Plaintiff’s job duties, he did not want Plaintiff to be exposed to any potential harm or danger.11 Deposition of David Spratt (“DS”) 24:5-27:21; ER 80:16-19. 10 Dr. David Spratt is a doctor of osteopathic medicine. DS 37:24-38:6. He has significant education in cardiology, as well as specific training in the operation and effects of implanted cardio defibrillators. DS 39:9-20. Dr. Spratt has also served on the board of directors for the American Heart Association. DS 84:8-16. 11 Dr. Razak also subsequently confirmed that he did not stand by the initial January 13 release, and that he would cancel it and issue a new one. DS 55:15-23. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 16 of 49 MOTION FOR SUMMARY JUDGMENT - 9 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Ultimately, Plaintiff, Dr. Razak, and Dr. Spratt all agreed that Crown needed to conduct an EMI survey of the Olympia plant to “identify precisely what … were the risks associated with [Plaintiff] returning to the plant.” DS 26:15-19; RB 124:7-126:9. Accordingly, Crown paid for a third party vendor, IAQ-EMF Consulting, Inc., to perform an EMI survey at the Olympia plant on January 27, 2016.12 Deposition of Barry Bohmueller (“BB”) 13:10-21; RB 262:25-263:2. Stuart Bagley of IAQ-EMF Consulting performed the EMI survey. DJ 12:11-14. The purpose of the survey was to measure the EMI present at the plant to determine whether it would interfere with Plaintiff’s ICD. DS 26:15-19; RB 148:19-22. In other words, Crown conducted the survey to determine whether the Olympia plant was a safe environment for Plaintiff to work in. RB 197:3-5; BB 13:10-21; DS 26:15-19. H. February 2, 2016: Crown Receives Survey Results; Survey is Sent to Boston Scientific for Additional Analysis at Dr. Razak’s Recommendation. On February 2, 2016, Bagley sent Beach the summary report (the “Bagley Report”) of his findings from the January 27 survey. RB 197:7-198:21. Prior to receipt of the Bagley Report, Beach told Plaintiff she would send it to Plaintiff’s physicians so they could determine whether, based on the EMI present at the Olympia plant, he could safely return to work. Id. Indeed, Beach promptly forwarded the results to Dr. Razak on February 2, 2016. Id. On February 9, 2016, Plaintiff met with Dr. Razak to review the survey results, seeking clearance to return to work. RB 200:7-201:5. Dr. Razak told Plaintiff that he needed to send the Bagley Report to Boston Scientific (the manufacturer of Plaintiff’s ICD) to analyze and interpret its meaning. RB 201:6-14; 203:5-13. Dr. Razak likewise informed Dr. Spratt that he wanted the manufacturer of Plaintiff’s ICD to assess the Bagley Report and advise him of the safe distances Plaintiff should maintain from the equipment at the Olympia plant. DS 26:20-27:12; ER 103:5- 12; ER II 112:21-113:16. 12 The site survey cost $3,680.00. Beach Decl. ¶4, Ex. 2. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 17 of 49 MOTION FOR SUMMARY JUDGMENT - 10 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Accordingly, the Bagley Report was sent to Chuck Donahue at Boston Scientific for further interpretation on or about February 10, 2016. RB 206:9-207:20. Boston Scientific finally completed its assessment (the “Boston Scientific Assessment” or “BSA”) of the Bagley Report on March 1, 2016, and sent it directly to Dr. Razak. RB 209:1-23. On or about March 2, 2016, Plaintiff emailed the BSA to Beach and informed her that he was requesting a return to work letter from Dr. Razak. RB 214:22-215:14. I. March 15, 2016: Dr. Razak Reviews BSA and Provides a Return to Work Authorization Expressly Conditioned on Plaintiff’s Ability to Maintain the Distances Identified in the BSA While Performing His Job and Conditions in the Plant Remaining Completely Unchanged. After sending the BSA to Dr. Razak on March 1, 2016, Plaintiff had difficulty getting in touch with Dr. Razak to receive a return to work release. RB 222:21-223:1. Plaintiff ultimately called Dr. Razak’s office and discussed the BSA with him. RB 225:1-23. Dr. Razak understood from the BSA that the Olympia plant contained machinery that emitted EMI that would harm Plaintiff’s ICD if Plaintiff failed to maintain the recommended distances. ER 91:22-92:14. In fact, Dr. Razak understood that there were approximately 27 pieces of equipment in the Olympia plant from which Plaintiff had to maintain at least a one foot distance. ER II 115:20-116:17.13 In addition, there were at least nine additional pieces of equipment at the Olympia plant for which there were no safe distances specified whatsoever. ER II 116:21-118:9.14 Dr. Razak admits that he did not have sufficient knowledge of Plaintiff’s job duties to determine whether it was possible for Plaintiff to maintain any of the distances identified in the BSA while performing 13 These pieces of equipment included Necker 1 N1-M3; Switchboard 3; Switchboard 3 Right Side; Panel MDP; Deco 2 Inker Drives; Deco 1 Inker Drives; Conveyor M106; Conveyor by Pin 1 on Mezzanine; Conveyor 3M 103; IB02-M7; Washer 2 –M9(2); IB02 Discharge M431; Trimmer Motor; L1 Conveyor Maximum to Vacuum Transfer M108A; Cupper Mezzanine; Cupper Mezzanine M108B; Burner Motor Cleaver Brooks; Standby Pump; Portable Hand Grinder; Motorola 2-Way Radio; Maintenance Side Motor; Conveyor Motor M483; Pump M8; Process Pump 2; Vacuum Pump 1; Main Switchboard 2; and Mixer. Nelson Decl., Ex. 13 at 2-5. 14 These pieces of equipment included: Deco 2 – Motor 1; Washer 2- M1(3); Pallet Lift Motor; Solenoid Valves; Conveyor Motor 485; LSM Drop Motor; IB01: Conveyor Motor; LSM 2: Discharge Conveyor; and WTS: Pump Motor D – 14(6). Nelson Decl., Ex. 13 at 2-5. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 18 of 49 MOTION FOR SUMMARY JUDGMENT - 11 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 his job, or, for the equipment for which no safe distance was listed, whether any identifiable distance would be safe. ER II 115:3-118:4. With these limitations in mind, Dr. Razak provided Plaintiff with a letter for Crown. RB 225:19-226:19. Plaintiff sent Dr. Razak’s letter to Beach on March 16, 2016. RB 227:25- 228:25. The letter stated: This is to inform you that Richard A Burks … is being treated for heart failure, he is status post implantation of an automatic defibrillator to prevent the risk of sudden cardiac death given his significantly decreased heart function. The patient is cleared to go back to his work if criteria are met to keep the device functioning safely. Please see attached Boston Scientific recommendations who is the manufacturer of his defibrillator. Overall, after review of the [BSA] as well as the fact that the device was implanted for primary prophylaxis and he has never been shocked by the device, his work environment is considered low risk for encountering electro-magnetic interference as long as the patient maintain the safe distance recommended as described in the report by Boston Scientific. My opinion is based on the review of the documents provided by the patient’s work facility, as well as Boston Scientific review which assumes there would be no repositioning of the equipment, addition of new appointment [sic]15, and other changes [to] equipment work load or patient’s work responsibilities. . . Nelson Decl., Ex. 16 (emphasis added). In sum, Dr. Razak did not believe it was safe for Plaintiff to return to work if Plaintiff’s job duties ever required him to be closer than the recommended safe distances listed in the BSA.16 ER 81:3-23; 137:5-139:23; ER II 104:14-20. Dr. Razak specifically testified that he did not have any knowledge of whether Plaintiff could maintain those recommended safe distances. ER 82:6-12. Accordingly, the “release” was expressly conditioned on Plaintiff being able to perform his job duties at safe distances from 15 Dr. Razak testified at deposition that his dictation software misinterpreted his word choice, and that he meant to use the word “equipment,” not “appointment.” ER 115:1-11. 16 Importantly, Dr. Razak did not have an understanding of Plaintiff’s job duties as Supervisor. ER 80:16-19. Nor did he have personal knowledge of whether it was possible for Plaintiff, in executing his job duties, to maintain the recommended safe distances in BSA at all times, or under all operating conditions. ER 95:25-96:7. Accordingly, Dr. Razak did not have knowledge of whether the assessments could be practically achieved. ER 99:7-12. But, even if the recommended safe distances could be practically achieved, Dr. Razak believed that the Olympia plant had to be in the exact same condition at all times for the recommended safe distances to be valid. ER 101:6-15; ER II 114:16-115:2. That, in turn, would require additional site surveys to measure EMI. Id.; ER II 120:1-17. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 19 of 49 MOTION FOR SUMMARY JUDGMENT - 12 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 EMI sources “at all times and under all conditions.” ER II 124:2-12. The release was further conditioned upon no repositioning, additions, or changes to the equipment at the plant. Id. Upon receipt of Dr. Razak’s March 15, 2016 letter, Beach sent it to Dr. Spratt for expedited review. RB 227:25-228:10. Dr. Spratt agreed with Dr. Razak’s conclusion that Plaintiff could safely return to work only if Plaintiff could maintain the safe distances recommended in the BSA. DS 104:8-17. In reaching this conclusion, Dr. Spratt relied on his review of the information contained in the BSA, the Bagley Report, his own medical knowledge, and Dr. Razak’s expertise. DS 81:23-82:11. J. March – May 2016: Crown Keeps Plaintiff Informed of Decision Making Process. As Crown evaluated whether it could safely return Plaintiff to work, Beach was in regular communication with Plaintiff about it. RB 231:6-24; 261:25-262:23. In fact, Plaintiff admitted several times during his deposition that Beach’s communications with him throughout the course of 2015 and 2016 were regular, appropriate, and detailed. RB 217:18-218:22; 231:6-233:3. In addition, Richard Backlund, Crown’s Area Industrial Relations Manager, met in person with Plaintiff about Plaintiff’s limitations and return to work process. Deposition of Richard Backlund (“RBD”) 17:3-7; 22:21-23:1. On April 5, 2016, Backlund met with Plaintiff to discuss Plaintiff’s desire to return to work as a Supervisor, Plaintiff’s “medical situation,” as well as the contents of the BSA. RB 233:8-21; 235:15-18; RBD 18:23-20:2; 20:7-11; 21:8-13; 26:21-27:3. Backlund specifically inquired whether Plaintiff required “any kind” of accommodation; Plaintiff’s only response was that he only wanted Crown to allow him to follow the recommended distances in the BSA. RB 234:8-21; 263:17-24; RBD 19:7-20:11. Backlund sent his summary of his April 5 meeting with Plaintiff to Barry Bohmueller, Crown’s Director of Labor & Employment, after it concluded. RBD 25:8-18; RB 235:20-236:5. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 20 of 49 MOTION FOR SUMMARY JUDGMENT - 13 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 K. Crown Determines That Plaintiff Cannot Maintain the Recommended Distances in Executing His Supervisor Job Duties. In assessing whether Plaintiff could maintain the recommended distances identified in the BSA, Dr. Spratt consulted with Dan Joanis, the Olympia Plant Manager, and other Crown operational managers. DS 51:12-52:21; 103:8-11; DJ 23:17-19. Joanis concluded that Plaintiff could not perform his job without coming closer than the recommended safe distances identified in the BSA. DJ 23:22-24:10. Specifically, Joanis knew that Plaintiff’s supervisory duties were “all encompassing,” meaning he could be called to any location in the facility at any moment. DJ 24:3-10. Further, even if Plaintiff tried to maintain the recommended distances from some of the machines identified in the BSA, Joanis was wary of the simple reality that Plaintiff could mistakenly get closer to machines and equipment than he was permitted. DJ 24:11-17. Joanis’ conclusions are supported by the testimony of a current Night Supervisor, who is generally “responsible for the entire operation, the facility, and the personnel,” which includes “employee safety, health, quality control, production, [and] managing the entire shift.” MR 12:14-18; 31:6-8. The Supervisor is “constantly going from department to department, doing statistical process control checks, quality inspections, quality checks, and ensuring that [Crown] employees are following the standard operating procedures and guidelines.” MR 26:7-18. Crown places a “high priority” on safety, which means that the Supervisor’s presence “on the production floor is absolutely vital. [Supervisors] cannot eliminate unsafe conditions or unsafe actions if [supervisors] are not there to see them.” Id. Importantly, the Night Supervisor is the “first responder to any emergency or any machine breakdown or upset condition.”17 MR 30:10- 13. These responsibilities and job duties necessitate Supervisors being in regular contact or very close proximity (in many cases, less than one foot) to the machines that pose a danger to Plaintiff. See generally Riley Decl. Supervisors are required to be “in and around” machines for 17 As the first responder to these sorts of situations, the Supervisor has to be right there with the employee in a safety incident, or otherwise directing employees, or repairing equipment, and helping the team fix the situation as safely and effectively as possible. MR 30:14-17. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 21 of 49 MOTION FOR SUMMARY JUDGMENT - 14 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 several other reasons, including overseeing and discussing issues with the personnel operating the equipment;18 overseeing the order change process, label-switches, safety procedures (i.e., lock out, tag out),19 “jogging”20 the machine, and picking up blown off sample cans.21 MR 19:8-24:25. The Supervisor is also required to check temperatures and analyze LED readouts to record the temperatures on a separate tracking sheet as part of other manufacturing processes. MR 41:9-42:9. To analyze the readouts, Supervisors must open a mechanism mounted on a 480- volt electrical panel. Id. These duties are consistent with Plaintiff’s own experiences as a Supervisor. Plaintiff plainly testified that his job required him to be close to EMI-emitting machines in the Olympia plant: Q: So at times, you were required to be close to machines to participate in the process of diagnosing things that might be going wrong with them and fixing them; correct? A: Yeah, my job effectively required me to be close to the machines, sometimes. RB 97:21-98:1. Further, Plaintiff also testified that his job required him to be “physically near” the machines. RB 89:17-90:24. Plaintiff also admitted it was his “ultimate responsibility” to ensure the machines are functioning properly. Id.22 Plaintiff confirmed that he was “frequently” 18 Directing personnel requires close proximity because “it’s an extremely loud working environment.” Employees are required to wear hearing protection. Any time a Supervisor has to direct employees, deliver messages, or simply touch base with them, the Supervisor has “to be right next to those employees.” If the employee is operating equipment, the Supervisor is oftentimes right “up on that equipment,” speaking with them for “a plethora of reasons,” including safety, productivity, and quality issues. MR 29:18-30:4. 19 The lock-out, tag-out procedure similarly requires Supervisors to be close to the machinery; for example, when electrical motors need to be replaced. Although employees may work on fixing the machine, the Supervisor is required to ensure the machines are safely locked out, and attempt to restart the equipment to ensure the employees have properly de-energized the equipment and followed proper safety procedures. MR 56:18-57:14. 20 To “jog” a machine, “[i]t is necessary to be right up next to the operator control panel.” MR 50:8-51:5. It is not safe or effective to have an arm extended because it could be severed in the moving equipment. Id. 21 The can decorator machines apply ink to the machines. MR 15:15-16:12. The Supervisor presses a “blow-off” button on the operator panel, which removes four to seven sample cans from the decorator for quality inspection purposes. Id. 22 For example, Plaintiff agreed it was common for him to have to be close to malfunctioning machines. RB 159:25-160:12; RB 164:14-19. Consistent with current Supervisor testimony, Plaintiff testified that his job required him to regularly walk through the plant to perform “checkoffs” at least every two hours. RB 165:17-166:19. Plaintiff also agreed that he was required to inspect machines located throughout the plant every 2-4 hours to ensure Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 22 of 49 MOTION FOR SUMMARY JUDGMENT - 15 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 closer than the safe distances identified in the BSA. RB 46:19-23. Plaintiff’s recollection is that his job required him to be within close physical proximity to the machines on the Olympia plant floor between 10-20 percent of his shift. RB 46:24-47:5. Indeed, the Supervisor must commonly work within the distances the BSA recommended that Plaintiff should “avoid” for at least 20 different pieces of equipment while executing their job duties. See generally Riley Decl.23 Further, while not as common, the Supervisor also comes into physical contact with the burner motor cleaver brooks and the standby pump, both of which Plaintiff should also “avoid.” MR 66:14-67:1; see also Nelson Decl., Ex.13 at 3, 5. Consistent with the testimony of a the current Night Supervisor, Plaintiff does not deny that—prior to his cardiomyopathy diagnosis, and while he was still able to work and execute his job functions—he was regularly at or closer than the distances the BSA recommended he avoid for at least 15 different types of equipment.24 Further, at deposition, Plaintiff was not familiar with the names of some of the machines listed in the BSA, and therefore was unable to testify how close he would get to those machines.25 However, as noted above, the current Night Supervisor testified that his job requires him to be closer than the recommended safe distances identified in the BSA for those specific machines Plaintiff could not identify. they were working properly. RB 34:1-35:23. Plaintiff further agreed he was ultimately required to be involved with assessing machinery if any problems arose, as well as reviewing production sheets at various locations around the plant. RB 35:24-36:25. Depending on the day, some of these tasks could occur as often as every hour. RB 37:7- 38:6. Plaintiff also confirmed that his job required him to “physically inspect” machines “daily” while supervising employees adjusting machines. RB 46:1-6. 23 These include the Necker 1 N1-M3; Deco 2 – Motor 1; Deco 2 – Inker Drives; Deco 1 Inker Drives; Conveyor by Pin 1 on Mezzanine; Washer 2 – M1(3); Washer 2 – M9(2); IB02 Discharge M431; IB02-M7; Trimmer Motors; L1 Conveyor Maximum to Vacuum Transfer M108A; Cupper Mezzanine; Cupper Mezzanine M108B; 2-Way Radio; LSM Drop Motor; IB01 Conveyor Motor; IB01 Pump M8; Discharge Conveyor; Pump Motor D – 14(6); and the WTS Mixer. 24 These included the Palletizer (no safe distance – avoid area); the Solenoid Valves (no safe distance – avoid area); Palletizer Maintenance Side Motor (no safe distance – avoid area); Deco 1 - Inker drives (1 foot); Deco 2 – Inker drives (1 foot); Washer (1 foot); IB02 Discharge M431 (1 foot); IB02-M7 (1 foot); L1 Conveyor (1 foot); Cupper Mezzanine (1 foot); Cupper Mezzanine M108B (1 foot), Motorola 2-way Radio (1 foot); the Neckers (1 foot); IB01 Conveyor Motor; and the IB01 Pump M8 (1 foot). RB 149:11-150:14; 156:11-17; 170:9-175:13; 177:7-178:25; 181:12-183:14; 184:7-17; 185:17-23; 186:11-187:24; Nelson Decl., Ex. 13, at 2-5. 25 These include the Trimmer Motors and the Burner Motor Cleaver Brooks; RB 66:14-17; 181:12-16; 183:16-18. Mark Riley testified that he knew what they were and that he was in “contact” with the Burner Motor Cleaver Brooks and within the recommended safe distance (1 foot) for the Trimmer Motors. MR 64:12-65:10; 66:14-20. There are also 18 trimmer motors throughout the facility. Riley Decl., ¶ 11. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 23 of 49 MOTION FOR SUMMARY JUDGMENT - 16 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Accordingly, given the job duties of the Supervisor position, Crown concluded that Plaintiff’s job duties required him to be closer than the safe distances identified in the BSA. BB 13:22-14:13. L. Dr. Razak Agrees With Crown’s Expert That Plaintiff is Subject to a Significant Risk of Severe Harm When Working Closer than the Recommended Safe Distances. Dr. Razak testified that there are two primary ways EMI from the machines at the Olympia plant could kill Plaintiff. First, Plaintiff could suffer a “ventricular event,” and the EMI from a machine may cause the ICD to malfunction and fail to save Plaintiff’s life. ER 122:3- 123:17. Second, the EMI could interfere with the device in that it could deliver therapy when not needed (i.e., unnecessarily shocking the heart), which could also kill Plaintiff. ER II 99:6-14. The fact that Plaintiff’s job duties as Supervisor required his coming within the “safe zones” delineated in the BSA posed an inherent risk of potentially killing him or endangering his health. For example, if Plaintiff’s job took him within the zone of interference and the EMI resulted in his ICD delivering an inappropriate shock, it could cause Plaintiff to “pass out”26 or be “knocked out” into a state of unconsciousness. ER 122:3-123:17; ER II 100:13-101:9. Further, “inappropriate shocks” are also generally associated with “increased cause of mortality” for patients, and “repeated inappropriate [ICD] shocks” are “especially dangerous” because they increase the likelihood of death. ER 126:19-127:16-21. If an “inappropriate shock” occurred during a susceptible phase for the heart muscle, it could also trigger “life threatening” arrhythmias. ER 122:3-123:17; ER II 101:10-17. Even if a shock was not life-threatening, an “inappropriate shock” is, at minimum, extremely painful, and described by some patients as the equivalent of being “hit by a Mac truck,” being “kicked by a mule,” or suffering the worst punch of one’s life. ER 123:3-15; ER II 100:13-101:9. 26 As Dr. Razak testified, if Plaintiff were to pass out, it could cause him to be even closer to the EMI source. ER 140:12-141:4. If Plaintiff remained in the zone of interference while passed out, it is possible that Plaintiff’s ICD would not be able to resume normal function. ER II 141:16-142:4. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 24 of 49 MOTION FOR SUMMARY JUDGMENT - 17 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Put simply, Plaintiff’s exposure to EMI at the unsafe distances is dangerous to him. ER II 104:14-20. Dr. Razak testified that the ultimate consequences of Plaintiff’s inability to maintain the distances described in the BSA would be potentially “catastrophic” (ER 80:6-18), and that, if he knew that Plaintiff’s job performance ever required him to be close enough to EMI sources that they would interfere with his ICD, Dr. Razak would not “deem it safe” for Plaintiff to return to work. ER 137:5-139:25. In fact, Dr. Razak testified that releasing Plaintiff to work under those circumstances would be akin to “playing Russian roulette with [his] patient’s life[.]” Id. This conclusion is consistent with Defendant’s Expert Report (with which Dr. Razak testified he agreed). ER 10:21-11:16. Defendant’s expert, Dr. Alena Talkachova, similarly concluded that the potential adverse consequences to Plaintiff—if he came closer than the safe distances as recommended by the BSA—could result in increased “inappropriate shocks,” as well as “potentially dangerous heart conditions,” which include “pain, psychological distress, losing consciousness, developing arrhythmia, and death.” Defendant’s Expert Witness Report (Dkt. #34) (“Talkachova Expert Report”), Ex. A, at 8. M. Crown Investigates Viability of Any Accommodations That Would Allow Plaintiff to Safely Perform His Job Duties. After concluding Plaintiff could not safely perform his essential job functions, Crown attempted to ascertain whether there were any accommodations that would allow Plaintiff to perform his job duties. DS 97:5-23; DJ 27:13-23. Specifically, Joanis did a “conclusive study” of “shields” (devices referenced in the Bagley report that could theoretically limit the amount of EMI emitted from the machines at the Olympia plant). DJ 27:13-23; 29:2-24. However, Joanis quickly realized that the shields were not an adequate accommodation for several reasons. First, the shields did not offer any solution to the fact that Plaintiff’s job still required him to be anywhere in the plant at any time, including being in physical contact with the machinery and equipment as needed. Joanis Decl., ¶7. Second, even if the shields were installed, their physical presence would hamper the ability to perform regular maintenance on the machines throughout the plant due to the physical barrier created by the shields. DJ 27:21-30-22. In other Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 25 of 49 MOTION FOR SUMMARY JUDGMENT - 18 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 words, the shields would unequivocally interfere with Crown’s ability to operate efficiently. Id. Relatedly, every time a machine shut down for maintenance, the shield would have to be removed from its position, causing it to subsequently need to be recertified by another EMI survey to ensure it was effectively blocking the EMI. Id.; see also ER 101:6-15. Accordingly, every time a machine shut down for routine maintenance (which occurs monthly), Plaintiff’s safety could not be assured until a third party vendor could test and certify its electromagnetic emissions, which could take days or weeks. DJ 29:2-24; 47:3-7; Joanis Decl., ¶8. Joanis determined that expense “would have been astronomical” to ensure the shields were working properly every time they were reinstalled. DJ 30:8-12. Lastly, Joanis also understood that Dr. Razak’s March 15, 2016 release was premised on the assumption that no additional equipment would be installed or replaced at the Olympia plant. DJ 31:20-32:2; 41:10-42:4. However, the Olympia plant continually updates its equipment. Id. For example, since Bagley performed the EMI tests in January 2016, the Olympia plant has installed several new systems, including an upgraded necker testing system, a master decorator, and a new DI system (all of which are identified in the BSA as sources of EMI dangerous to Plaintiff). DJ 42:7-45:1. Moreover, the high production level at which the facility operates requires the regular replacement of the approximately 375 motors powering the machines (on average approximately 15 motors per month). Joanis Decl., ¶9. As such, additional costly EMI surveys would have been required every time new equipment was added or on which maintenance services were performed—or at least four times per month. Id. ¶10. Finally, Beach investigated whether Crown had any open positions that Plaintiff was qualified to perform in the geographic area. Beach Decl., ¶2. There were no such positions. Id. N. Crown Terminates Plaintiff’s Employment. Upon concluding that Plaintiff’s medical condition and ICD prevented him from safely performing his job duties, and that no reasonable accommodation could be made, Crown reached the difficult decision to terminate Plaintiff’s employment. BB 18:3-19:3. The decision was Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 26 of 49 MOTION FOR SUMMARY JUDGMENT - 19 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 made collectively by Dr. Spratt, Joanis, and HR Director Fred Leh. Id. However, Crown decided not to terminate Plaintiff’s employment until May 3, 2016 (Plaintiff’s five-year anniversary with Crown), so Plaintiff’s pension would vest before his termination. BB 20:4-20; Deposition of Fred Leh (“FL”) 34:6-11. IV. STANDARD OF REVIEW Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In response to a properly supported motion, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). “This burden is not a light one. . . . The non-moving party must do more than show there is some ‘metaphysical doubt’ as to the material facts at issue.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation omitted). A “mere disagreement or bald assertion” that a genuine dispute as to a material fact exists “will not preclude the grant of summary judgment.” Deering v. Lassen Cmty. Coll. Dist., 2011 WL 202797, at *2 (E.D. Cal. Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989)). In addition, if the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Miller v. Glen Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). V. ARGUMENT Plaintiff alleges Crown violated the Americans with Disabilities Act (ADA) and Washington Law Against Discrimination (WLAD) by discriminating against him because of his disability and otherwise failing to engage in the interactive process.27 Plaintiff’s claims must fail as a matter of law. 27 Plaintiff previously asserted that Crown also violated state and federal family laws pursuant to RCW 49.78 et seq. and 29 U.S.C. § 2611 et. seq. Plaintiff voluntarily dismissed those claims on June 15, 2018. See Stipulated Motion to Adjust Dispositive Motion Noting Date and Cut Off Or; Alternatively, To Allow a Late Response from Plaintiff (Dkt. #43), at 1. Further, while Plaintiff alleged in his Complaint that Crown purportedly retaliated against him because of his disability, Crown understands that is no longer one of Plaintiff’s theories. Nelson Decl. ¶18, Ex. 17. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 27 of 49 MOTION FOR SUMMARY JUDGMENT - 20 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A. Crown Did Not have an Obligation to Accommodate Plaintiff Because He Is Not a Qualified Individual. To establish a prima facie case of discrimination under the ADA, “an employee bears the ultimate burden of proving that he is (1) disabled under the Act, (2) a qualified individual with a disability, and (3) discriminated against because of the disability.”28 Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007); see also Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1108 (9th Cir. 2000) (holding the plaintiff bears the burden of proving that he is qualified). Plaintiff’s discrimination claim must fail because he cannot meet his burden to show he is a “qualified individual.” 1. Plaintiff’s Essential Job Functions Required Him to Be Closer Than the Recommended Safe Distances in the BSA. A “qualified individual” is “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.” Bates, 511 F.3d at 989 (quoting 42 U.S.C. § 12111(8)). The “essential functions” are “fundamental job duties of the employment position … not includ[ing] the marginal functions of the position.” 29 CFR § 1630.2(n)(1); see also Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir. 2001). The Ninth Circuit has held that, where the employer challenges the plaintiff’s claim that he can perform the job’s essential functions, it is “appropriate to place a burden of production on the employer to come forward with evidence of those essential functions.” Bates, 511 F.3d at 991. “The ADA explains that, when determining whether a job requirement is an ‘essential function,’ ‘consideration shall be given to the employer’s judgment as to what functions of a job Plaintiff also testified that his ADA and WLAD claims stem exclusively from his perception that Crown failed to accommodate him and engage in the interactive process in good faith. RB 263:25-264:6. 28 Plaintiff’s burden is the same for his state law claim. See McDaniels v. Group Health Co-op., 57 F. Supp. 3d 1300, 1314 (W.D. Wash. 2014) (explaining that the “[j]udicial interpretations of the ADA and the WLAD differ slightly in the way they phrase the elements of an accommodation claim under the two statutes, but the basic requirements are the same” and citing the same standard); Kelley v. Amazon, Inc., 2013 WL 6119229, *3 (E.D. Wash. Nov. 21, 2013) (holding the elements of a failure to accommodate claim under the WLAD are similar to the ADA). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 28 of 49 MOTION FOR SUMMARY JUDGMENT - 21 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 are essential.’” Cripe, 261 F.3d at 887 (quoting 42 U.S.C. § 12111(8)).29 Washington courts similarly defer to the employer as to what constitutes an essential job function. See Fey v. State, 174 Wash. App. 435, 443-44 (2013) (“the employer’s identification or judgment as to essential functions of a position is entitled to deference”); Snyder v. Medical Service Corp. of Eastern Washington, 98 Wash. App. 315, 328 (1999) (observing that the intent of the ADA—which it found persuasive in applying the WLAD—was to avoid interfering with personnel decisions). In the Ninth Circuit, “an employer who disputes the plaintiff’s claim that he can perform the essential job functions must put forth evidence establishing those functions.” Bates, 511 F.3d at 991 (quoting EEOC v. Wal-Mart, 477 F.3d 561, 561 (8th Cir. 2007)). “The genesis of this rule is the recognition that ‘much of the information which determines those essential functions lies uniquely with the employer.’” Bates, 511 F.3d at 991 (quoting Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). Here, the facts unequivocally establish that the essential job functions of Plaintiff’s position required him to be closer than the recommended safe distances identified in the BSA. As a preliminary matter, Plaintiff does not dispute that he was required to perform any of the job duties identified in Crown’s “Supervisor” job description, which specifically includes the physical requirements of “us[ing] hands to finger, handle or feel objects, tools or controls,” and “work[ing] near moving mechanical parts,” as well as experience with “be[ing] able to diagnose or troubleshoot complex or technical malfunctions.” RB 40:13-23; 46:13-18; Nelson Decl., Ex. 9. The Supervisor job duties also generally require responsibility for the overall direction and coordination of the can-making process; conducting and directing daily observations and 29 The EEOC’s regulations provide a non-exhaustive list of seven types of evidence that may be used to determine whether a particular job function is essential, which demonstrates that deference should be given to the employer on what is and is not an essential job function. The list includes (i) the employer’s judgment as to which functions are essential; (ii) written job descriptions prepared before advertising or interviewing applicants for the job; (iii) the amount of time spent on the job performing the function; (iv) the consequences of not requiring the incumbent to perform the function; (v) the terms of a collective bargaining agreement; (vi) the work experience of past incumbents in the job; and/or (vii) the current work experience of incumbents in similar jobs. 29 CFR § 1630.2(n)(3) (emphasis added). The WLAD relies on these same federal regulations to determine whether a particular function is essential. See Dedman v. Pers. Appeals Bd., 98 Wash. App. 471, 479 (1999). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 29 of 49 MOTION FOR SUMMARY JUDGMENT - 22 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 weekly audits to “monitor safe work practices, unsafe conditions, quality of product, housekeeping, etc.”; “initiat[ing] measures to improve safe work practices, production methods, quality of product, working conditions, and equipment performance or efficiency”; and “other duties responsibilities, or roles” as assigned by management. Id. Joanis (Crown’s Plant Manager) testified that these job duties are “all encompassing,” and effectively require Supervisors to be closer than the recommended safe distances at any given moment. DJ 23:22-24:10; see also 29 CFR § 1630.2(n)(3)(i) (providing deference to “employer’s judgment as to which functions are essential”). Joanis’ testimony is consistent with the experience of an incumbent Supervisor,30 who also testified that the Supervisor position requires being on the plant floor as much as possible to direct and communicate with personnel within one foot or less of the machines. Riley Decl., ¶17.31 Further, it is essential that Supervisors must be able to respond to any emergency—whether a safety incident or equipment malfunction—in any part of the plant (Riley Decl., ¶18). Critically, Plaintiff admits his job “effectively required” him to be “close” to the machines. RB 97:22-98:1. Further, Plaintiff admits that his job required him to by “physically near” machines to deal with whatever may be going wrong with them. RB 89:17-90:24. Plaintiff also admitted it was his “ultimate responsibility” to ensure the machines are functioning properly. Id. Specific examples of job duties Plaintiff admitted required his close proximity to machines included malfunctioning machines (RB 159:25-160:12; RB 164:14-19); physically inspecting machines (RB 34:23-35:23, 46:1-6); and performing “checkoffs” (RB 165:17- 166:19). Plaintiff also testified that—for equipment he was able to identify32—his job brought 30 See also 29 CFR § 1630.2(n)(3)(vi)-(vii) (including work experience of past and current incumbents in list of criteria giving employer deference on what is and is not an essential job function) 31 For example, Riley testified that he is often required to be “on [the] equipment” for safety, productivity, and quality reasons (MR 29:18-30:22). Further, Riley testified that he is routinely pulling samples from equipment, which requires being “right next [to] the equipment” (MR 14:22-16:23); and generally checking temperatures and readouts, which requires opening equipment mounted on 480-volt electrical panels (MR 41:9-42:9). 32 Again, Plaintiff did not recognize some of the machines identified in the BSA report, including the Trimmer Motor, Conveyor M106, and the Burner Motor Cleaver Brooks. RB 66:14-17; 181:12-16; 183:16-18. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 30 of 49 MOTION FOR SUMMARY JUDGMENT - 23 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 him closer to at least 15 different pieces of equipment than the safe distances recommended by the BSA.33 These admissions are consistent with the testimony of a current Supervisor, who is required to work within the safe distances for at least 20 different pieces of equipment while executing his job duties.34 See generally Riley Decl. Further, Riley also testified that his duties require him to be closer than the recommended safe distances for the machines that Plaintiff was unable to identify (the Trimmer Motor and the Burner Motor Cleaver Brooks). MR 64:12-65:10; 66:14-20. There is no dispute that the Supervisor position requires close proximity—indeed, closer than the recommended safe distances (including, in some cases, direct physical contact)—for dozens of pieces of equipment in the Olympia plant. 2. Plaintiff Could Not Perform the Essential Functions of His Job With or Without Reasonable Accommodation. Dr. Razak unequivocally testified Plaintiff could not safely perform his job—indeed, Dr. Razak would not release him to return to work—if Plaintiff’s job brought him closer than the recommend safe distances in the BSA.35 ER II 132:2-14. As set forth above, this limitation prevented Plaintiff from performing the essential functions of his job, as performance of the essential functions of his job necessitated his coming within unsafe distances of multiple machines and motors. Nonetheless, Plaintiff asserts that Crown failed to provide him with 33 Specifically, these included the Palletizer (no safe distance – avoid area); the Solenoid Valves (no safe distance – avoid area); Palletizer Maintenance Side Motor (no safe distance – avoid area); Deco 1 - Inker drives (1 foot); Deco 2 – Inker drives (1 foot); Washer (1 foot); IB02 Discharge M431 (1 foot); IB02-M7 (1 foot); L1 Conveyor (1 foot); Cupper Mezzanine (1 foot); Cupper Mezzanine M108B (1 foot), Motorola 2-way Radio (1 foot); the Neckers (1 foot); IB01 Conveyor Motor; and the IB01 Pump M8 (1 foot). RB 149:11-150:14; 156:11-17; 170:9-175:13; 177:7- 178:25; 181:12-183:14; 184:7-17; 185:17-23; 186:11-187:24; Nelson Decl., Ex. 13, at 2-5. 34 Specifically, these include the Necker 1 N1-M3; Deco 2 – Motor 1; Deco 2 – Inker Drives; Deco 1 Inker Drives; Conveyor by Pin 1 on Mezzanine; Washer 2 – M1(3); Washer 2 – M9(2); IB02 Discharge M431; IB02-M7; Trimmer Motors; L1 Conveyor Maximum to Vacuum Transfer M108A; Cupper Mezzanine; Cupper Mezzanine M108B; 2-Way Radio; LSM Drop Motor; IB01 Conveyor Motor; IB01 Pump M8; Discharge Conveyor; Pump Motor D – 14(6); and the WTS Mixer. 35 Again, Dr. Razak testified that when he signed the March 2016 release, he had no knowledge of Plaintiff’s job duties or whether he could safely maintain the BSA distances at all times and under all operating conditions. ER II 116:11-16. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 31 of 49 MOTION FOR SUMMARY JUDGMENT - 24 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 reasonable accommodations that would have permitted him to perform the essential functions of his job. Plaintiff cannot meet his burden to show such an accommodation exists. US Airways, Inc., v. Barnett, 535 U.S. 391, 401 (2002) (to overcome employer’s motion for summary judgment, employee has burden of showing that an accommodation seems reasonable on its face). First, while he was still employed by Crown, Plaintiff neither requested nor suggested any form of accommodation beyond being allowed to return to work. RB 234:8-21; 263:17-24; RBD 19:7-20:11. Since his termination, and throughout this litigation, however, Plaintiff has asserted or otherwise suggested that he should have been offered reasonable accommodation in two capacities: (1) performing his duties from an office location (i.e., refraining entirely from walking on the Olympia plant floor), and/or (2) installing “shields” that would block EMI on the Olympia plant floor.36 Id. Even if Plaintiff had requested these forms of accommodation while still employed, they would have been ineffective, futile, or created an undue hardship, and Crown does not have an obligation to provide them. The Supreme Court has expressly held that a futile or ineffective accommodation is no accommodation at all. Barnett, 535 U.S. at 400 (“[T]he word ‘accommodation … conveys the need for effectiveness. An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s limitations.”).37 This means that, before the duty to accommodate arises, an employee must provide proof that the proposed accommodation will enable the employee to perform the essential functions of his job. See, e.g., 36 Crown was not—as a matter of law—even required to consider these purported accommodations. As further discussed in Section V.D.1., infra, Plaintiff’s failure to raise these alleged accommodations, and, further, his unequivocal admission that he was not requesting any accommodations while employed by Crown, is conclusive evidence that Crown was not required to engage in any additional interactive process discussions with Plaintiff. RB 234:8-21; 263:17-24; RBD 19:7-20:11. Irrespective of such requirement, both proposed accommodations were futile and/or would have imposed an undue hardship on Defendant. 37 See also EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1111-12 (9th Cir. 2010) (“Ineffective modifications … are not accommodations”); Bohl v. City of Sparks, 320 Fed. Appx. 770, 771 (9th Cir. 2009) (“While the ADA requires an employer to provide reasonable accommodations to a disabled employee, such accommodations do not include the elimination of a position’s essential functions.”); cf. Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001) (“An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.”). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 32 of 49 MOTION FOR SUMMARY JUDGMENT - 25 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Fredenburg v. Contra Costa Cnty. Dep’t of Health Servs., 172 F.3d 1176, 1180 (9th Cir. 1999) (no failure to accommodate when employee failed to demonstrate that requested accommodation would enable her to perform essential functions of the job).38 Neither of Plaintiff’s alleged available accommodations are reasonable because they would have been ineffective, required the elimination of essential functions, or created an undue hardship to Crown. a. Crown was not required to eliminate any essential function of Plaintiff’s position in order to accommodate him. First, allowing Plaintiff to remain in an enclosed office, completely separate from the machines, would have eliminated his ability to perform the job. The Supervisor position requires being on the manufacturing floor and physically in, on, around, and otherwise coming in physical contact with the equipment at issue. MR 30:5-22; DJ 24:3-10; DJ 51:13-21; RB 89:17- 90:24; RB 97:21-98:1. This is necessary to check the production status, diagnose mechanical issues, supervise employees, and respond to safety incidents, among other things. Id. In fact, as Riley testified, his duties as Supervisor result in him walking an average of 10 miles per shift. MR 26:1-6. Accordingly, Plaintiff’s suggestion that he could supervise the plant floor from a removed location is tantamount to changing his job description and the essential functions of the Supervisor position, which is both unreasonable and not legally required. 29 C.F.R. § 1630.2(o) (employers are “not required to reallocate essential functions”); see also Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 8 (2d Cir. 1999) (restructuring duties of custodian to eliminate all but sedentary work was not reasonable accommodation); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1177 (10th Cir. 1999) (employer was not required to eliminate physical aspects of job and allow employee to perform just sedentary duties). To the extent 38 Washington courts take the same position. See Fey v. State, 174 Wash. App. 435, 444 (2013) (“Washington law is well settled that to prove a claim for failure to accommodate, a plaintiff must demonstrate that he or she can perform the essential functions of the job as determined by the employer—not that the employer could revamp the essential functions of a job to fit the employee”). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 33 of 49 MOTION FOR SUMMARY JUDGMENT - 26 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff believes Crown should have “waived” the requirement that he be on the plant floor and near the machines, the Ninth Circuit has specifically rejected that argument. See Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233, 1240 (9th Cir. 2012) (rejecting plaintiff’s argument that the employer should or could accommodate “incremental waivers of responsibilities of a single-employee”). Moreover, Plaintiff’s physical inability to be closer than the recommended safe distances would have caused Crown to have to delegate those duties to another employee. Courts have specifically rejected the argument that employers are required to have other employees perform essential functions that were ordinarily performed by the plaintiff prior to the disabling event. See, e.g., Donahue v. Consolidated Rail Corp., 224 F.3d 226, 232 (3d Cir. 2000) (employer not required to have other employees “cover” for train dispatcher who sometimes lost consciousness where ability to monitor train tracks was essential function of job). Likewise, an accommodation that would result in other Crown employees having to work harder or longer is not required under the ADA. Stephenson v. United Airlines, Inc., 9 Fed Appx. 760, 766 (9th Cir. 2001) (“We acknowledge that employers need not create special light duty positions or comparable work for the purpose of accommodating qualified individuals with disabilities.”); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996) (citing Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995); 29 C.F.R. § 1630.2(p)(2)(v)). Plaintiff will likely try to dispute the regularity with which he performed tasks necessitating close proximity to EMI in an effort to undermine the “essential” nature of those duties.39 There are two fatal flaws with that argument. First, the overwhelming evidence demonstrates that working within the “safe” distances identified in the BSA to EMI-emitting machinery is a fact of the job. See generally Riley Decl. Second, courts regularly find that job 39 In addition to the deference that must be given to Crown in determining Plaintiff’s essential job functions, it must be noted that Plaintiff’s job performance prior to his diagnosis and surgery demonstrates his lack of understanding of his job duties in the first instance. As discussed above, his 2012, 2013, and 2014 performance reviews consistently noted Plaintiff’s lack of familiarity with the can-making process. Nelson Decl., Exs. 10, 11. By the end of 2014, Plaintiff’s “understanding of the can making process” was deemed “not acceptable.” Joanis Decl., Ex. 1. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 34 of 49 MOTION FOR SUMMARY JUDGMENT - 27 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 duties may still be “essential functions” even if those duties are performed infrequently. See Basith v. Cook Cnty., 241 F.3d 919, 928 (7th Cir. 2001) (“an essential function does not encompass the majority of an employee’s time, or even a significant quantity of time, to be essential”); Hall v. United States Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988) (same); see also Holbrook v. City of Alpharetta, 112 F.3d 1522, 1527 (11th Cir. 1997) (held job function was essential even where employee spent a small amount of time performing such function). This is particularly true if there are serious safety consequences if that job function is not performed. See Emerson v. Northern States Power Co., 256 F.3d 506 (7th Cir. 2001) (holding that, even where plaintiff testified only 5% of her job required her to handle safety-sensitive calls, it was nonetheless an essential function and employer was not required to accommodate plaintiff’s panic attacks which occasionally interfered with her ability to handle the calls); see also Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1292 (10th Cir. 2000) (finding that where an employee’s “essential job functions necessarily implicate the safety of others, plaintiff must demonstrate that she can perform those functions in a way that does not endanger others”). Here, for example, the Night Supervisor is the “first responder to any emergency.” MR 30:10-13. As the first responder, the Supervisor must be “right there” with the employee in a safety incident. MR 30:14-17. This could be within any part of the plant, including the unsafe areas. DJ 23:22-24:10. Importantly, the ADA does not require the employer to modify an essential function such that the employee is permitted to perform only those functions he is able to, while omitting those he cannot. EEOC Technical Assistance Man. at II-18 (“The ADA does not limit an employer’s ability to establish or change the content, nature or functions of the job.”). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 35 of 49 MOTION FOR SUMMARY JUDGMENT - 28 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 b. The EMI “Shields” Are Not Reasonable Because They Would Have Created an Undue Hardship on Crown. Even if Plaintiff did request the EMI “shields” while still employed by Crown (which he did not), their implementation would cause an undue hardship for Crown.40 The ADA defines “undue hardship” as “an action requiring significant difficulty or expense,” which is to be considered in light of five factors promulgated by EEOC.41 42 U.S.C. § 12111(10)(A).42 “[D]etermining whether a proposed accommodation … is reasonable, including whether it imposes an undue hardship on the employer, requires a fact-specific, individualized inquiry.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). The WLAD provides a similar test.43 Here, analysis of the undue hardship factors weighs heavily in Crown’s favor. Dr. Razak’s March 2016 release was explicitly conditioned upon there being no repositioning, additions, or modifications to any of the equipment at the Olympia plant. ER II 124:2-12. The cost of complying with Dr. Razak’s release would have been “astronomical” and continuous, 40 Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002) (even if plaintiff makes a prima facie showing that particular accommodation is reasonable, employer has opportunity to prove costs are excessive in relation either to benefits of accommodation or to employer’s financial circumstances). Under the WLAD, the employer must provide reasonable accommodation unless the employer can prove the accommodation would impose an undue hardship to the employer’s business. Osborne v. Recreational Equip. Inc., 196 Wash. App. 1048 (2016). 41 In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include (i) The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding; (ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources; (iii) The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities; (iv) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and (v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business. 29 C.F.R. § 1630.2(p)(2)(v). 42 See also Snyder v. Medical Serv. Corp., 98 Wash. App. 315 (1999) (holding that an employer’s failure to provide reasonable accommodations constitutes discrimination unless such accommodation would result in an undue hardship to the employer’s business). 43 The undue hardship defense is available under the WLAD if the employer can prove the “cost or difficulty” of the proposed accommodation is unreasonable in view of (1) the size of and the resources of available to the employer; (2) whether the cost can be included in planned remodeling or maintenance; and (3) the requirements of other laws and contracts, and other appropriate considerations. WAC 162-22-075. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 36 of 49 MOTION FOR SUMMARY JUDGMENT - 29 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 given that repositioning the shields (and, therefore, new EMI surveys) would have been required each time a machine went down for maintenance.44 DJ 29:2-24; 47:3-7; Joanis Decl., ¶¶ 9, 10. In other words, every time a machine requires maintenance, the EMI shields would have to be removed; once the shields are replaced, each shield on each machine would have to be recertified for effectiveness in blocking electromagnetic energy. DJ 29:2-24. The cost to perform one EMI survey alone was approximately $3,680.00. Joanis Decl., ¶10; Beach Decl., Ex. 2. Machine maintenance occurs on both an as-needed and regularly scheduled basis, and can occur up to 30 times per month. Joanis Decl., ¶9. Between replacing electric motors and routine monthly maintenance, a new EMI survey would have been to be performed approximately four times per month. Joanis Decl., ¶10. Accordingly, the estimated annual cost of hiring a third party vendor to perform an EMI survey for the purposes of determining whether the facility was safe for Plaintiff was approximately $180,000. Id. Although the anticipated cost associated with this cannot be precisely estimated, the law does not require it to be. See Stone v. City of Mt. Vernon, 118 F.3d 92, 99 (2d Cir. 1997) (“We have not at all intended to suggest that employers must analyze the costs and benefits of proposed accommodations with mathematical precision”). In addition to the multiple and costly EMI surveys the shields would inevitably generate, the impact of the shields on the Olympia plant’s operations (and productivity) would be substantial. Joanis Decl., ¶11. They would impede performing regular, monthly maintenance on the machines throughout the plant due to the physical barrier created by the shields, and negatively impact the plant’s ability to operate efficiently. DJ 29:2-24; 47:3-7. This, in turn, would inhibit or otherwise interfere with other employees’ ability to perform their jobs, particularly with respect to maintenance on the equipment. Id. Further, the shields would have created “cumbersome” obstacles in the plant, including negatively impacting the output of the plant’s high-efficiency motors and electronic systems. DJ 41:15-42:4. 44 Relatedly, even if the shields helped Plaintiff perform some of his essential job duties, the shields would have prevented him from performing any of his essential job functions while Crown waited for a third party vendor to perform an EMI survey for the reinstalled shields. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 37 of 49 MOTION FOR SUMMARY JUDGMENT - 30 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This burden on the Olympia plant is precisely the kind that courts routinely hold support an undue hardship defense. See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (“Undue hardships are not limited to financial impacts; the term includes accommodations that are unduly extensive, substantially disruptive, or that would fundamentally alter the nature or operation of the business.”); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (“Slowing the production schedule or assigning [disabled] plaintiffs lighter loads would fundamentally alter the nature of defendant’s warehouse operation, a change not demanded by the law.”); Dey v. Milwaukee Forge, 957 F. Supp. 1043, 1052 (E.D. Wis. 1996) (requested accommodation which would have reallocated job duties from plaintiff to other employees, requiring them to “work harder or longer,” was an undue hardship because it would “impact . . . the ability of the defendant to operate its business”). In totality, installation of shields would have been so disruptive and costly that it would have “fundamentally changed” the way the Olympia plant operates, thereby creating an undue hardship. See 42 U.S.C. § 12111(10). B. Dr. Razak’s Conditioning Plaintiff’s Release On The Olympia Plant Environment Remaining Unchanged Would Have Posed Additional Undue Burden On Crown. Even if the electromagnetic shields would not pose the undue hardship to Crown delineated above, the fact that Plaintiff’s medical release was expressly conditioned on no changes being made to the Olympia plant most certainly would. Again, Dr. Razak’s March 2016 release was explicitly conditioned on there being no repositioning, additions, or modifications to any of the equipment at the Olympia plant—meaning a new EMI survey would have to be conducted each and every time that occurred. ER II 124:2-12. However, the high production level at the Olympia plant necessitates the regular replacement and repair of the 375 motors and pieces of equipment throughout the facility identified in the BSA as posing a risk of dangerous EMI with Plaintiff’s ICD. See Joanis Decl. ¶¶9, 10. Thus, in addition to the cost associated with recertifying pieces of equipment when the electromagnetic shields were removed/replaced during Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 38 of 49 MOTION FOR SUMMARY JUDGMENT - 31 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 routine machine maintenance, the facility would have to incur the additional cost of recertifying any and all machinery that had to be repaired or replaced during the course of routine plant operations (regardless of whether the shields were there or not). Id. Again, this cost would have been “astronomical” and continuous, given that motors and machines are repaired approximately 30 times per month and replaced approximately 15 times per month.45 DJ 29:2-24; 47:3-7; Joanis Decl., ¶9.46 C. Plaintiff’s Presence in the Olympia Plant Posed a Direct Threat to Himself and Others. The ADA sets forth the “direct threat” affirmative defense available to employers who employ individuals who, because of their disability, endanger themselves or their colleagues.47 See 42 U.S.C. § 12113(a)-(b). Specifically, the EEOC’s regulations provide: Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. 45 Relatedly, even if the shields would have been effective in helping Plaintiff perform some of his essential job duties (which Crown denies is possible), the shields would have prevented him from performing any of his essential job functions while Crown waited for a third party vendor to perform every EMI survey that would have been required to recertify the reinstalled shields. 46 As discussed supra, the Olympia plant continually updates its equipment. Joanis Decl., ¶9. For example, since Bagley performed the EMI tests in January 2016, the Olympia plant has installed several new systems, including an upgraded necker testing system, a master decorator, and a new DI system (all of which are identified in the BSA as sources of EMI dangerous to Plaintiff). DJ 42:7-45:1. Moreover, the high production level at which the facility operates requires the regular replacement of the 375 motors powering the machines (on average 15 motors per month). Id. As such, additional costly EMI surveys would have been required every time new equipment was added – or at least four times per month. Id. ¶10. 47 The Supreme Court expressly held in Chevron U.S.A. Inc., v. Echazabal, 536 U.S. 73 (2002) that the direct threat affirmative defense also applies to threats the employee poses to himself. The direct threat defense is also applicable to both disparate treatment claims and reasonable accommodation claims. See id.; see also Buskirk v. Apollo Metals, 307 F.3d 160, 168 (3d Cir. 2002). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 39 of 49 MOTION FOR SUMMARY JUDGMENT - 32 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 CFR § 1630.2(r); see also Hutton v. Elf Atochem N.A., Inc., 273 F.3d 884, 893 (9th Cir. 2001). “Because it is an affirmative defense, the employer bears the burden of proving that an employee constitutes a direct threat.”48 Hutton, 273 F.3d at 893. “EMI poses a very real danger to individuals with [ICDs].” ER II 126:23-127:2. Dr. Razak explained that, although the chances of Plaintiff suffering a singular deadly event are low, the nature and severity of risk to Plaintiff working closer than the distances recommended in the BSA would be potentially “catastrophic,” and that releasing him to work under such conditions would be akin to “playing Russian roulette with [his] patient’s life[.]”49 ER 80:6-18; 137:5-139:25; Talkachova Expert Report, Ex. A, at 8. Additionally, every time Plaintiff’s job took him closer than the recommended safe distances, he could also be subjected to non-lethal “inappropriate” shocks, which could cause Plaintiff to “pass out” or be “knocked out,” be subjected to extreme pain, psychological distress, or even put him at risk of developing “bad arrhythmias.” ER 122:3-123:17; Talkachova Expert Report, Ex. A, at 8. These “inappropriate shocks” are also linked to a heightened risk of mortality, and repeated inappropriate shocks raise that risk. Id. The duration of the risk of inappropriate and/or repeated shocks is indefinite because it would last as long as Plaintiff’s ICD remained implanted. As Dr. Razak testified, Plaintiff’s ICD is necessary to treat his condition. ER II 126:14-16. The imminence of the severe danger to Plaintiff’s life would be constant: every shift he worked for the remainder of his employment, and every instance where his job required him to come closer than the recommended safe distances identified in the BSA. As Dr. Razak testified, Plaintiff could have an episode at any moment that required his ICD to function properly. ER II 126:17-20. 48 The employer’s burden is a “preponderance of the evidence” standard. Atkins v. Salazar, 677 F.3d 667, 681 (5th Cir. 2011) (explaining that 42 U.S.C. 12113 creates an affirmative, business necessity defenses, which must are only subject to a preponderance of the evidence standard) (citing Echazabal, 563 U.S. at 78). 49 Critically, Dr. Razak expressly agreed with Dr. Talkachova’s conclusions in Defendant’s Expert Report. ER II 133:14-134:21. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 40 of 49 MOTION FOR SUMMARY JUDGMENT - 33 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Nonetheless, Plaintiff has taken the position throughout this litigation that he should have been returned to his Supervisor position because he perceived the likelihood of his ICD malfunctioning from EMI at the Olympia plant—and thus endangering his health and safety—to be low.50 However, even where the likelihood of the potential harm is low and the imminence of the harm is unknown, the Ninth Circuit has held that a “significant risk under the direct threat analysis” exists where the severity of the potential harm is particularly severe. See Hutton, 273 F.3d at 894-95 (holding that a direct threat existed where the “nature and severity” of the harm was “catastrophic,” including the loss of life, even though the likelihood of the harm was “small” and unpredictable, and the imminence of the harm was “unknown”). That conclusion is consistent with other federal appellate courts across the country. See, e.g., Donahue v. Consol. Rail Corp., 224 F.3d 226, 231 (3d Cir. 2000) (stating that “[i]f the threatened harm is grievous … even a small risk may be ‘significant’”); Onishea v. Hopper, 171 F.3d 1289, 1297 (11th Cir. 1999) (en banc) (holding that risk of death “makes the risk significant”); see also Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996) (plaintiff who worked with complicated machinery and dangerous chemicals posed direct threat to himself and others because any loss of concentration caused by diabetic episode created a “walking time bomb and woe unto the employer who places an employee in that position”). For that reason, employers in safety-sensitive industries have latitude when deciding whether an employee is safe to return to work. Powers v. USF Holland, Inc.¸ 667 F.3d 815, 824 (7th Cir. 2011) (employer in safety-sensitive industry may impose “100% healed” rule to prevent employees from returning to work without full clearance as a means of controlling risk); EEOC v. Schneider Nat’l, Inc., 481 F.3d 507, 511 (7th Cir. 2007) (employer with zero-tolerance policy toward hiring employees with disability that caused fainting did not violate ADA for terminating employee, even where risk of fainting was low, because the potential consequences were 50 Plaintiff’s position on this point appears to have changed since Crown filed Dr. Talkachova’s Expert Report. Indeed, Plaintiff’s counsel presented the report to Dr. Razak for his opinion about the report. ER II 133:5-134:3. In doing so, Plaintiff’s counsel commented that Dr. Talkachova “paint[ed] a bleak picture of what might happen if [Plaintiff] is exposed to EMI.” Id. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 41 of 49 MOTION FOR SUMMARY JUDGMENT - 34 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 calamitous). This is particularly true in workplace settings that pose the same sorts of dangers as those present here, as federal courts of appeals have consistently affirmed summary judgment in favor of the employer “where the record evidence demonstrated that the plaintiff was a direct threat in his factory workplace.” Wurzel v. Whirlpool Corp., 482 F. Appx. 1, 12-13 (6th Cir. 2012) (emphasis added); see also Darnell v. Thermafiber, Inc., 417 F.3d 657, 661 (7th Cir. 2005) (concluding that a plaintiff with uncontrolled diabetes and a resulting risk of passing out on the job presented a direct threat where employees were required to, among other things, operate dangerous machinery); Hutton, 273 F.3d at 886-87 (diabetic plaintiff who had experienced hypoglycemic episodes was a direct threat to himself and coworkers if he was permitted to operate equipment that stored and transferred liquid chlorine); Moses v. American Nonwovens, Inc., 97 F.3d 446, 447-48 (11th Cir. 1996) (epileptic worker who worked close to fast-moving and high-temperature machinery was a direct threat). To that end, “courts routinely uphold a defendant’s direct-threat defense when a plaintiff does not pose an immediately imminent risk, but for whom even a momentary lapse in condition would have disastrous consequences.” Nall v. BNSF Railway Co., 2017 WL 607126 at *20 (S.D. Tex. Feb. 14, 2017). As Dr. Razak bluntly stated, it is not safe for Plaintiff to be closer than the recommended safe distances in the BSA, and he would not have released Plaintiff to return to work if he knew his job brought him closer than those recommended safe distances. ER 81:3-23; 137:5-139:23; ER II 104:14-20. Further, while calculating the precise odds of a deadly event is difficult to ascertain (given the unethical nature of testing living subjects) Dr. Talkachova similarly agrees that any amount of time Plaintiff spent closer than the prescribed safe distances in the BSA would expose Plaintiff to a possible deadly ICD malfunction. Talkachova Expert Report, Ex. A, at 7-8. On top of that, were Plaintiff to experience an inappropriate shock that resulted in his losing consciousness while standing near any of the high-speed conveyor belts and other rapidly moving pieces of equipment with which the Olympia plant is replete, the likelihood of his severe injury—or even death—resulting from falling into any of these pieces of equipment renders Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 42 of 49 MOTION FOR SUMMARY JUDGMENT - 35 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff’s presence there the consummate danger to him (and others working near him) that Crown could not (and should not have to) allow. See Joanis Decl., ¶12; ER II 106:6-19. This is precisely the type of case for which the direct threat defense was created.51 D. Plaintiff Does Not Have an Independent Cause of Action for Failure to Engage in the Interactive Process; Regardless, Crown Engaged Plaintiff in Good Faith. As a threshold matter, Plaintiff cannot bring, as he apparently asserts, a separate cause of action for Crown’s purported failure to engage in the interactive process. Engaging in the interactive process is not an independent cause of action under ADA (or WLAD);52 it is part of the employer’s duty to accommodate. Snapp v. United Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (“[T]here exists no stand-alone claim for failing to engage in the interactive process. Rather, discrimination results from denying an available and reasonable accommodation.”); see also Kramer v. Tosco Corp., 233 Fed. Appx. 593, 590 (9th Cir. 2007) (rejecting plaintiff’s assignment of error as to jury instruction, noting “[Plaintiff’s] proposed instruction would have misled the jury into erroneously believing that there existed an independent cause of action for failing to engage in the interactive process. [The employer] is not liable because, as the jury found, [the plaintiff] was not a qualified individual, with or without reasonable accommodation.”). Regardless, there is no evidence Crown failed to meet any obligation to engage Plaintiff in the interactive process. 51 See Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 86 (2002) (holding that the EEOC’s interpretation that the “direct threat” defense applies to employee threats against themselves was reasonable in part because “it saw a difference between rejecting workplace paternalism and ignoring specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job”). 52 “A failure to engage in an interactive process does not form the basis of a disability discrimination claim in the absence of evidence that accommodation was possible.” Osborne v. Recreational Equipment Inc., 196 Wash. App. 1048 (2016) (citations omitted); Fey v. State of Washington, 174 Wash. App. 435, 453 (2013) (citing McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 100-01 (2d Cir. 2009) (surveying federal courts uniform agreement on that issue)). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 43 of 49 MOTION FOR SUMMARY JUDGMENT - 36 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. Crown Did Not Have a Legal Obligation to Engage Plaintiff in the Interactive Process Because No Accommodation Would Have Enabled Him to Perform the Essential Functions of His Position. Crown was not legally required to engage in the interactive process with Plaintiff in the first instance. The interactive process is not required where no accommodation would enable an employee to perform the duties of the position. See Snapp v. United Transportation Union, 889 F.3d 1088, 1100 n.2 (9th Cir. 2018) (“An employer is not required to engage in a futile interactive process. If no reasonable accommodation exists that would allow an employee to do his job, an employer cannot be liable for failure to engage in the interactive process.”); Swonke v. Sprint Inc., 327 F. Supp. 2d 1128, 1137 (N.D. Cal. 2004) (“The Court cannot impose upon the employer an obligation to engage in a process that was guaranteed to be futile.”); see also Samper v. Providence St. Vincent Medical Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (“It is a ‘rather common-sense idea … that if one is not able to be at work, one cannot be a qualified individual.’”) (citation omitted). As discussed extensively above, engaging in the interactive process ultimately proved to be futile given that Plaintiff cannot perform the essential functions of his job. Moreover, Plaintiff cannot prove he triggered Crown’s obligation to engage him in the interactive process. “An employer’s duty to accommodate is not triggered until the employer is aware of the employee’s disability and physical limitations.” Hale v. WellPinit School Dist. No. 49, 2011 WL 2474511, *5 (Wash. App. Jun. 23, 2011) (emphasis in original); see also Hayes v. Walmart Stores, Inc., 781 F. Supp. 2d 1080, 1090 (D. Or. 2011) (“the employer’s duty is not triggered unless the employee … ‘provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and the desire for an accommodation.’”) (citing Summers v. A. Teichert & Son, 127 F.3d 1150, 1153 (9th Cir. 1997) (holding no triable issue of fact existed where employee had not asked for accommodation). “Merely asserting that an accommodation was needed is insufficient; ‘the employee must inform the employer of the accommodation needed.’” Hayes, 781 F. Supp. 2d at 1090 (D. Or. 2011) Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 44 of 49 MOTION FOR SUMMARY JUDGMENT - 37 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (quoting Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005)) (emphasis added). Accordingly, to overcome summary judgment, an employee must show that he participated in the interactive process in good faith and that the employer is responsible for a breakdown in that process. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002).53 Here, Plaintiff supplied Crown with Dr. Razak’s March 15, 2016 release, which was conditioned on Plaintiff maintaining the distances identified in the BSA. RB 227:25-228:25; Nelson Decl., Ex. 16. Upon receipt of the release, Crown inquired of Plaintiff what, if any, accommodations he required on April 5, 2016. RB 234:8-21; 263:17-24; RBD 19:7-20:11. Plaintiff responded that he only wanted to return to work – i.e., he didn’t need any accommodations. Id. Now Plaintiff asserts that Crown discriminated against him by not exploring or considering reasonable accommodations (apart from simply returning to work). Plaintiff cannot have it both ways. See Allen v. Pacific Bell, et al., 348 F.3d 1113, 1115 (9th Cir. 2003) (holding that where employee failed to provide information requested by employer during the interactive process, the employee could not show that he participated in the interactive process in good faith, meaning the employer was excused from its obligation to provide a reasonable accommodation as a matter of law). 2. The Facts Demonstrate Crown Engaged in the Interactive Process Irrespective of Plaintiff’s Failure to Request Accommodation. Regardless of whether Crown was legally required to engage in the interactive process with Plaintiff after he requested no accommodation, the undisputed facts of this case demonstrate that Crown did, in fact, do so. The interactive process “requires (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation that is 53 If the employee cannot show that he participated in the interactive process in good faith, the employer is excused from its obligation to provide a reasonable accommodation as a matter of law. See Allen v. Pacific Bell, et al., 348 F.3d 1113, 1115 (9th Cir. 2003). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 45 of 49 MOTION FOR SUMMARY JUDGMENT - 38 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 reasonable and effective.” EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010) (quoting Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002)). “The ADA does not require an employer to be a clairvoyant regarding the effectiveness of a modification.” UPS Supply Chain, 620 F.3d at 1112 (citations omitted). Accordingly, “‘[l]iability for failure to provide reasonable accommodations ensues only where the employer bears the responsibility for the breakdown’ in the interactive process.” Zivkovic, 302 F. Supp. 2d at 1089 (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996)). That is because the purpose of the interactive process is to “foster the framework of cooperative problem-solving,” and to encourage “employers to find accommodations that really work.” UPS Supply Chain, 620 F.3d at 1111 (citations omitted). Here, the evidence plainly demonstrates that Plaintiff and Crown were aware of all the issues necessary to determine whether Plaintiff could safely return to the Olympia plant. In fact, Plaintiff admits that Crown communicated with him weekly from the time he left work in January 2015 until his termination in May 2016 to determine whether Plaintiff was able to safely return to work.54 RB 262:8-11. Specifically, Plaintiff testified that he and Beach communicated about his physical health on a weekly basis between January and June 2015. RB 107:22-108:8; Beach Decl. Ex. 3. Between July 2015 (the month of Plaintiff’s surgery) and January 2016, Plaintiff and Beach started discussing whether Plaintiff would be able to safely return to work. RB 112:23-114:2; Beach Decl., Ex. 3 at 19-23, 29-36. Further, as soon as Plaintiff requested to return to work in January 2016 (RB 113:6-9), Crown promptly identified and paid for a third- party EMI surveyor (Bagley) to conduct a survey to determine whether Plaintiff could return safely. BB 13:10-21; RB 262:25-263:2. Once Crown received the Bagley Report in February 2016, it immediately sent the survey directly to Dr. Razak for his assessment, who, in turn, required the assistance of Boston Scientific to interpret the results. RB 197:7-198:21; ER II 112:21-113:16. After Crown received the BSA, Dr. Spratt discussed it with Dr. Razak and 54 Crown engaged Plaintiff in good faith. As Plaintiff admitted, he understood that Beach cared about his welfare, and that she was communicating Plaintiff’s return to work efforts to Crown. Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 46 of 49 MOTION FOR SUMMARY JUDGMENT - 39 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ultimately determined that Plaintiff could safely return to work only if (1) Plaintiff could perform the essential functions of his position and maintain the recommended safe distances identified in the BSA, and (2) all facility conditions remained exactly as they were on January 27, 2016. See DS 104:8-17; Nelson Decl., Ex. 16. Although Plaintiff had not requested any accommodation, once Crown determined he could not safely perform the essential functions of his job without coming too close to a variety of machines that would interfere with his ICD, Backlund arranged a meeting with Plaintiff and specifically asked him whether he wanted or needed any accommodation. RB 234:8-21; 263:17-24; RBD 18:23-20:11. Plaintiff unequivocally stated that he did not need any accommodations; he simply requested to continue performing his job. RB 234:8-21. This “accommodation” was futile, impossible, and Crown was not required to grant it. US Airways, Inc., v. Barnett, 535 U.S. 391, 400 (2002) (employer not required to accommodate futile or ineffective requests for accommodation). Further, Crown’s obligation to engage in the interactive process did not require it to engage in any additional communications beyond those necessary to make an informed decision, as the Ninth Circuit has concluded that even cursory communications with the employee can be sufficient to meet an employer’s obligations. For example, in Allen v. Pacific Bell, et al. the employer met its obligation to engage in the interactive process with respect to the employee’s request to return to his former job where the employee’s medical evaluation showed that he could not perform the essential functions of the job and the employee failed to present any additional medical evidence demonstrating that his condition had improved. 348 F.3d 1113, 1114-15 (9th Cir. 2003). Like the employer in Allen, Crown did not require any additional documentation from Dr. Razak to find Plaintiff could not safely return to his former position.55 55 Based on several insinuations made during his deposition, Plaintiff will likely argue in response that Joanis, Dr. Spratt, Bohmueller, or Leh should have been in direct contact with him during the interactive process. This argument has no merit. Crown was not required to allow Plaintiff to choose any particular Crown employee to engage him in the interactive process; Crown properly delegated that task to Beach and Backlund. Zivikovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (“[a]n employer is not obligated to provide an employee the accommodation he requests or prefers”). Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 47 of 49 MOTION FOR SUMMARY JUDGMENT - 40 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Once Plaintiff told Backlund that he did not require any accommodations, Crown nonetheless continued to try to find additional accommodations to return Plaintiff to work, including researching EMI shields that were referenced in the Bagley Report. DS 97:5-23; DJ 27:13-23; DJ 29:2-4. Crown terminated Plaintiff only after it determined the shields were both ineffective (because they would not allow Plaintiff to perform the essential functions of his job) and an undue hardship. BB 18:3-19:3; DJ 30:8-12. Crown went above and beyond to try to accommodate Plaintiff. There was no reasonable option, and it terminated Plaintiff accordingly (after waiting for his pension rights to vest). IV. CONCLUSION For the aforementioned reasons, Crown respectfully requests the Court enter Summary Judgment in Crown’s favor on all of Plaintiff’s claims for relief. Dated: July 3, 2018. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: s/ Jennifer A. Nelson By: s/ Christopher Morehead By: s/ Adam T. Pankratz Jennifer A. Nelson, admitted pro hac vice jennifer.nelson@ogletreedeakins.com Christopher Morehead, admitted pro hac vice christopher.morehead@ogletreedeakins.com 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 Adam T. Pankratz, WSBA #50951 adam.pankratz@ogletreedeakins.com 800 Fifth Avenue, Suite 4100 Seattle, WA 98104 Phone: 206.693.7057 Fax: 206.639.7058 Attorneys for Defendant CROWN BEVERAGE PACKAGING, LLC Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 48 of 49 CERTIFICATE OF SERVICE - 1 (No. 3:17-CV-05304-RBL) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of July, 2018, I filed and served the foregoing document with the Clerk of the Court via ECF, which will provide service to each party listed below by operation of the Court’s electronic filing system: Richard H. Wooster KRAM & WOOSTER, P.S. 1901 South “I” Street Tacoma, WA 98405 Attorneys for Plaintiff s/ Rosealynn Seitz Rosealynn Seitz, Practice Assistant 34328613.4 Case 3:17-cv-05304-RBL Document 51 Filed 07/03/18 Page 49 of 49