United States District Court, D. Colorado
JOSEPH R. CARPIO Plaintiff,
STONE & WEBSTER CONSTRUCTION, INC., a Louisiana corporation Defendant.
ORDER ON DEFENDANT STONE & WEBSTER’S MOTION FOR PARTIAL SUMMARY JUDGMENT
RAYMOND P. MOORE United States District Judge
This matter arises from an employment dispute under the Americans with Disabilities Act (ADA), between defendant Stone & Webster Construction, Inc., (Stone & Webster), and plaintiff Joseph R. Carpio (Carpio). After receiving an Equal Employment Opportunity Commission (EEOC) Notice of Right to Sue on November 17, 2011, Carpio filed suit claiming: (1) failure to reasonably accommodate his disability under the Americans with Disabilities Act (ADA); (2) refusal to hire in violation of the ADA and (3) promissory estoppel based on representations and promises Carpio alleges Stone & Webster made regarding Carpio’s potential for rehire which induced him to resign his position. (ECF No.1).
Stone & Webster pursuant to Fed.R.Civ.P. 56, now moves for partial summary judgment on. Carpio’s First Claim for Relief (failure to accommodate), and Second Claim for Relief (failure to hire). (ECF No. 23). Carpio opposes Stone & Webster’s motion. (ECF No.26).
II FACTUAL BACKGROUND
A. Undisputed Facts
The following undisputed facts are gleaned from the court’s review of the record.
Stone & Webster Construction, Inc., a Louisiana corporation, is a division of The Shaw Group, a global corporation with over 25, 000 employees. (ECF No.1; p.1; ECF No. 23, p.3; ECF No. 26, p.4). Stone & Webster a union contractor builds and maintains power plants, refineries and chemical processing facilities including in 2007 and 2008, the Commanche 3 power plant project in Pueblo, Colorado. (ECF No.1; p.2; ECF No. 23, p.3; ECF No. 26, p.4). Carpio is a Type II diabetic and an electrician by trade. (ECF No.1, p.3; ECF No. 23, p.4; ECF No. 26, p.4). Carpio was a member of the International Brotherhood of Electrical Workers (IBEW) Local No. 12 at all times relevant to this action. Id.
Stone & Webster staffed the Comanche 3 project by submitting requisitions to union halls including the IBEW, Local No.12. (ECF No.1; p.3; ECF No. 23, p.4; ECF No. 26, p.4). Carpio accepted a referral and began work for Stone & Webster on November 27, 2007. (Id.; ECF No.23-4).
Carpio has a prosthetic leg. (ECF No.1; p.3; ECF No. 23, p.4; ECF No. 26, p.4). Upon beginning work, Carpio told Stone & Webster’s general foreman that he had a prosthetic leg but did not relay that his amputation was a result of an infection exacerbated by his diabetes or that he had diabetes. Id. By the end of his first day of work, Carpio had developed a painful blister on his stump. Id. He called in the next day informing Stone & Webster that he was unable to report to work because of his blister. Id. Carpio sought medical treatment that day and his physician advised him to take sufficient time off to allow the blister to heal. (ECF No.1; p.4; ECF No. 23, p.4; ECF No. 26, p.4). Carpio then called in sick several subsequent days and eventually voluntarily resigned his position by taking a “layoff”. (ECF No.1; p.4; ECF No. 23, pp.4-5; ECF No. 26, pp.4-5).
B. Disputed Facts
Carpio alleges that after telling his general foreman about his prosthesis, his foreman relayed that when he told the electrical superintendent about Carpio’s prosthesis, the electrical superintendent was “not happy” with Carpio. (ECF No. 1, p.3 and ECF No. 26-1, pp.6-7). He did not explain what “not happy” meant. Id. The last time Carpio called in sick, he explained that he did not know exactly how long it would take his leg to heal and requested that the superintendent call him. (ECF No.26-1, p.8). Stone & Webster’s superintendent called him back as requested. Id.
Carpio contends that in that call, the superintendent explained that he “really needed to refill [Carpio’s] position and that if [Carpio] would take a layoff until the leg healed and then [he] could come back as soon as the leg healed, that [Carpio] would be eligible for rehire.” Id. Carpio did take a layoff which was noted on Stone & Webster’s payroll removal form as a “Voluntary Quit” on December 10, 2007, for “Personal” reasons. (ECF No. 1, p.4; ECF No.23-8; ECF No.26-p.3).
A short time later, in late December 2007, Carpio’s physician released him for work. (ECF No.1, p.4; ECF No. 26, p.3; ECF No.26-1, p.8). Shortly thereafter Carpio accepted a union referral to return to work at the Commanche 3 project. (ECF No. 1; ECF No. 26; ECF No. 26-1, pp.8-9). However, Stone & Webster “turned around” or refused to hire Carpio on this and all subsequent ...