The opinion of the court was delivered by: Judge R. Brooke Jackson
This case comes before the Court on defendant's motion for summary judgment [docket #35] and plaintiff's motion for summary judgment [#36].
The plaintiff, Brandon Conlon, is an electrical engineer who was employed by Denver Water from June 2008 until he was terminated in July 2010. Mr. Conlon alleges that he suffered several adverse actions in violation of the Americans with Disabilities Act ("ADA") and the Colorado Anti-Discrimination Act ("CADA").
In February 2009 Mr. Conlon was involved in a car accident. Following that accident, Mr. Conlon suffered from back and leg pain, and as a result of his pain, he requested leave in April 2009. Because he had not yet worked for Denver Water for 12 months, Mr. Conlon was not eligible for leave under the Family Medical Leave Act ("FMLA"). However, Denver Water allowed Mr. Conlon to take unpaid administrative leave and agreed to hold his job for him until his return date of June 19, 2009. On June 9, 2009 Mr. Conlon became eligible for leave under the FMLA, and Denver Water alerted Mr. Conlon that his leave would now begin to count against his twelve week allotment under the FMLA.
On June 19, 2009, the day Mr. Conlon was scheduled to return to work, he asked to extend his leave until August 17th. In August Mr. Conlon again asked to extend his leave into October because he would be unable to perform his job functions. At that time Denver Water alerted Mr. Conlon that his FMLA leave would run out on August 31, 2009, and if he needed more time he would need to request an unpaid personal absence.
On August 27, 2009 Mr. Conlon emailed his supervisors at Denver Water to discuss his return to work. In this email Mr. Conlon stated that his treatment providers said that he would not be able to work full time. Rather, Mr. Conlon hoped to return to work four hours per day. Mr. Conlon also asked about the availability of a sit/stand work station and a chair with lumbar support. This email was forwarded to several people at Denver Water including Sandra Miller, the Manager of Healthcare and Benefit Administration. Ms. Miller instructed Mr. Conlon's supervisors that for any accommodation she would need something from Mr. Conlon's doctors and suggested meeting with Mr. Conlon to discuss his situation. Ms. Miller also stated that Mr. Conlon would need to bring in a fitness for duty form if he had any restrictions, including not being able to work full time.
On August 31, 2009 Mr. Conlon submitted a fitness for duty form that was completed by his doctor, Dr. Lichfield. The fitness for duty form stated that Mr. Conlon could not work more than four hours per day. The form also stated that by October 12, 2009 Mr. Conlon would be able to work six hours, and by December 4, 2009 he would be able to work a full eight hour work day. Mr. Conlon then had a meeting with Robert Mahoney, director of the engineering division, and Ms. Miller. In that meeting and in a follow-up letter, Mr. Conlon was told that he would not be reinstated from his FMLA leave with these restrictions.*fn1 In the letter from Mr. Mahoney to Mr. Conlon, Mr. Mahoney explained, "you may be entitled to benefits available through the Americans with Disabilities Act. One benefit would be a reasonable accommodation. If you would like to request an accommodation, please let me know or contact Sandra Miller . . ."
Mr. Conlon has not presented evidence that he contacted Mr. Mahoney or Ms. Miller for an accommodation that would allow him to work part time. Instead, Mr. Conlon obtained another fitness for duty form from Dr. Lichfield dated September 10, 2009 that stated that Mr. Conlon could work eight hours per day five days a week with up to four hours of sitting and four hours of standing. The form also stated that Mr. Conlon needed hourly breaks. In the special equipment or special working conditions section, Dr. Lichfield wrote "sit/stand station. Extra lumbar support. Leg/back pain accommodation."
Mr. Conlon resumed working for Denver Water on September 8, 2009 and was back to full-time work on September 14, 2009. On November 4, 2009 Mr. Conlon submitted another fitness for duty for with the same restrictions as the September 10, 2009 form. On January 6, 2010 Mr. Conlon received an annual performance review for the period ending December 13, 2010. Mr. Conlon scored an overall performance rating of "does not fully meet expectations." This negative review was based in large part upon problems with Mr. Conlon's attendance since he returned to work. Mr. Conlon appealed the performance review. In a letter he explained that as a result of the car accident, "I have missed a significant number of hours of work this year. According to my records as of December 31, 2009, I have missed 118 hours." Mr. Conlon stated that he would work an additional 118 hours in 2010 to make up for the missed time. He would accomplish this by working 43-45 hours per week, and possibly more if he worked weekends.
He then requested a "medical exception" on his evaluation so that his overall performance would be "fully meets performance standards." Mr. Conlon believed this was significant because "[m]issing a step increase would be detrimental to [his] future earnings and retirement benefits."
In late January Mr. Conlon's supervisor authorized Mr. Conlon to sign up for a week long training conference to be held in the summer out of state. However, the supervisor later revoked that authorization, because the trip would require more than 40 hours and long days of sitting without breaks every hour. He believed that the attendance requirements of the conference and the travel were outside of Mr. Conlon's physical restrictions.
In March 2010 Mr. Conlon submitted another fitness for duty form that represented that he could work up to 45 hours per week "as symptoms allow." This form also indicated that Mr. Conlon's restrictions would be permanent. In a letter dated April 16, 2010 Mr. Mahoney responded that "Denver Water understands this requirement and will provide this accommodation." However, in response to intermittent absences and a failure to complete assigned tasks, Mr. Mahoney requested that Mr. Conlon's supervisors complete a performance review.
On May 21, 2010 Mr. Conlon's supervisors completed a review and assigned an overall rating of "does not fully meet" expectations. Mr. Conlon appealed this review. In his appeal, Mr. Conlon stated that he had "repeatedly asked for a part-time schedule, limited work from home, or unpaid time." Mr. Conlon alleged "46 accommodation violations." Mr. Conlon has not provided any evidence of these repeated requests. Mr. Mahoney responded to the appeal in a letter dated June 1, 2010. In the letter Mr. Mahoney explained that Mr. Conlon had not requested a modified schedule but rather submitted fitness for duty forms indicating that he could work full time. Mr. Mahoney explained that "you may request an accommodation at any time, and, given your statements in your appeal, I have asked Ms. Miller to contact you to explain the Disability Review Process." Mr. Mahoney determined that there was a basis for the negative performance review and suggested that Mr. Conlon work with his supervisors to formalize a Performance Development Plan.
On June 4, 2010 Mr. Conlon met with Ms. Miller. Ms. Miller told Mr. Conlon that if he needed to work part-time he would need to submit documentation indicating that there was a medical need. Mr. Conlon submitted a new form from Dr. Lichfield that stated that Mr. Conlon could work 6-8 hours per day, with a base schedule of 30 hours per week, and up to 45 hours if his symptoms allowed it. Dr. Lichfield also said that Mr. Conlon would likely have flare-ups and estimated that they would occur about twice every two weeks lasting one to two days. Mr. Conlon requested that he be allowed to use up to 10 hours per week of FMLA time to allow for this schedule. Denver Water provisionally approved this plan but requested a second doctor's opinion.
In a June 25, 2010 letter Ms. Miller explained that per Denver Water policy, Mr. Conlon would have to use his accrued vacation and personal leave before using FMLA leave. Mr. Conlon requested as a reasonable accommodation that he be allowed to use unpaid leave rather than his accrued hours. Ms. Miller responded that "[y]our request to be accommodated under the ADA by allowing you to take unpaid leave in lieu of having to use your accrued leave as required by Denver Water policies does not appear to be medically necessary to enable you to perform essential functions of your job. However, if you submit a Fitness for Duty form indicating that taking unpaid leave versus using your accrued leave is medically necessary for you to perform your job, then Denver Water will consider if that is a reasonable accommodation."
On June 28, 2010 Mr. Conlon submitted another fitness for duty form from Dr. Lichfield that had the same restrictions but also said, "FMLA/ADA unpaid hours. Sit/stand station has not helped. Denver Water to work with Brandon Conlon to find appropriate accommodation."
Mr. Conlon continued to have attendance and performance problems. The week of July 6, 2010 Mr. Conlon worked only 6.5 hours and only 8 hours the following week. Mr. Conlon also missed numerous deadlines that were set in his Performance Development Plan. On July 22, 2010 Mr. Mahoney terminated Mr. Conlon's employment. Mr. Mahoney's stated reason for terminating Mr. Conlon was that he had ...