United States District Court, D. Colorado
ORDER GRANTING IN PART and DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
RAYMOND P. MOORE United States District Judge
Plaintiffs Annette Canales (Ms. Canales) and Victor Barrera (Mr. Barrera) bring six claims for relief against defendant AMPCO System Parking a/k/a ABM Parking Services Inc. (ABM). (ECF No. 11). Plaintiffs claim: (1) discrimination against Mr. Barrera under the Americans with Disabilities Act as Amended (ADAA), 42 U.S.C. §12112 by ABM; (2) discrimination against Ms. Canales under the ADAA, 42 U.S.C. §12112 by ABM; (3) discrimination by ABM based on national origin in violation of Title VII of the Civil Rights Act of 1968, 42 U.S.C. §2000e-2(a)(1) against both plaintiffs; (4) ABM’s termination of Mr. Barrera was in violation of public policy; (5) ABM’s retaliation against Ms. Canales was in violation of 42 U.S.C. §2000e and 42 U.S.C. §12203 and (6) gender based discrimination by ABM against Ms. Canales. Id.
ABM moves for summary judgment on all plaintiffs’ claims arguing that ABM did not discriminate: (1) on the basis of disability against Mr. Barrera who ABM contends, did not ever supply ABM with a valid release stating that he could perform the essential functions of his job and in fact applied for disability benefits in which he claimed that he was disabled and unable to work with or without reasonable accommodation; (2) on the basis of disability against Ms. Canales but rather modified her job five times based on her examining physician’s restrictions; (3) on the basis of plaintiffs’ ethnicity; or (4) on the basis of gender; and (5) did not retaliate against Ms. Canales or (6) terminate Mr. Barrera in violation of public policy. (ECF No. 64).
II FACTUAL BACKGROUND
A. Undisputed Facts
The following undisputed facts are gleaned from the court’s review of the record.
ABM at all relevant times employed more than 500 employees. (ECF No.11, p.3).
1. Mr. Barrera:
ABM hired Mr. Barrera as a shuttle bus driver at Denver International Airport (DIA), on November 12, 2004. (ECF No.11, p.6). On March 2, 2010, Mr. Barrera injured his lower back during the course of his employment. (ECF No.11, p.6). On December 20, 2010, Mr. Barrera filed an incident report stating that he had reinjured his lower back at work when lifting a heavy trash can. (ECF No.65-7). On December 27, 2010, Mr. Barrera was released to return to work with restrictions - no lifting over 10 pounds, no prolonged standing and/or walking longer than 30 minutes per hour, no bending greater than 10 times per hour and no pushing and/or pulling over 10 pounds. (ECF No. 65-8). In a January 11, 2011, physician activity status report, this release was updated to include the added restriction of no lifting over one pound. (ECF No. 65-9).
On August 9, 2011, Mr. Barrera requested and was granted leave pursuant to the Family Medical Leave Act (FMLA) to obtain surgery on his back. (ECF No. 64-16). He returned from FMLA leave on November 7, 2011. Id. Mr. Barrera completed an ABM incident report on December 22, 2011, in which he alerted ABM that he was taking Tramadol 50 mg and Cyclobenzaprine 10 mg (potentially sedating drugs), that he worked with pain in his back, right leg and experienced foot numbness, was having problems with sleep and was driving with his left foot because he had “no obtion [sic]”. (ECF No. 64-17; 64-4, p.10). He delivered this incident report to Marcia Nelson, the ABM Assistant General Manager at DIA since October 2008. (ECF No. 64-4). Ms. Nelson’s duties included ensuring compliance with various contracts, and oversight of ABM employee relations, discipline and scheduling. (ECF No. 64-4).
Frank Duda is ABM’s General Manager at the DIA location. (ECF No. 64-18). Mr. Duda’s duties include ensuring compliance with various state and federal laws, management of three collective bargaining agreements with two separate unions and involvement with disciplinary issues. Id. In a letter dated December 23, 2011, Mr. Duda upon receipt of Mr. Barrera’s December 22, 2011, incident report, pursuant to the collective bargaining safety agreement, challenged Mr. Barrera’s physical ability to perform the essential functions of his bus attendant job and directed him to submit to a company-paid physical examination on December 26, 2011. (ECF No. 64-19, p.1).
The letter instructed Mr. Barrera to provide the examining physician with the attached bus attendant job description and medical authorization form. (ECF No. 64-19). In a note dated December 26, 2011, the examining physician found that Mr. Barrera was “unable to drive at this time” and checked the box indicating that Mr. Barrera was unable to perform the essential functions of the position as described. (ECF No. 64-19, p.4). Mr. Barrera signed the December 26th form. Id.
On January 9, 2012, Ms. Nelson proffered a request for leave from January 9, 2012 through February 23, 2012 which Mr. Barrera refused to sign stating he’d prefer to be fired although he did take the FMLA leave. (ECF Nos. 64-20; 64-22, p.12). Mr. Barrera did not return to work on February 23, 2012. (ECF No. 62-21). Ms. Nelson in a letter to Mr. Barrera dated March 12, 2012, noted that he had not provided ABM with the required fitness for duty release and instructed him to let ABM know of his intent to return to work no later than March 27, 2012. On March 8, 2012, Mr. Barrera was again examined and the physician determined he was unable to perform the essential functions of his position. (ECF No. 64-23).
Mr. Barrera provided ABM with a note from his Kaiser Permanente doctor stating that he could resume work on April 13, 2012, with no restrictions. (ECF No. 64-25). Mr. Barrera does not dispute that he told Mr. Duda that his doctor had agreed to release him to work because he was currently not working and needed the money. (ECF No. 85-1, p.13). Mr. Barrera also told Mr. Duda that he could still only drive with his left leg because of his continuing problems with his right leg. (ECF No. 64-24, 73-16, p.3).
Mr. Duda again challenged Mr. Barrera’s physical ability to perform the essential functions of his job and required him to submit to a company-paid examination on April 16, 2012 and to provide the physician with the attached job description and medical authorization form. (ECF No. 64-24). On April 16, 2012, the physician indicated on the form that Mr. Barrera was not able to drive or to perform the essential functions of his position. (ECF No. 65-10).
On April 20, 2012, Mr. Barrera’s physician opined that he could not drive, could not bend, twist or walk/stand for more than 45 minutes at a time and could not lift more than 20 pounds. (ECF No. 65-11). On May 15, 2012, a physician for the Colorado Department of Labor and Employment determined that Mr. Barrera had restrictions - namely that he was unable to use his right leg due to numbness - that would keep him from returning to his usual occupation. (ECF No. 65-12). On May 17, 2012, Dr. Moore opined that Mr. Barrera could not drive “due to Rt radiculopathy”, could occasionally lift less than 20 pounds and could walk/stand for less than 45 minutes per hour. (ECF No. 65-13). On June 20, 2012, Mr. Barrera filed for disability benefits in which he claimed that he was disabled and unable to work since January 9, 2012. (ECF Nos. 64-22, pp7-8; 65-14, p.8).
2. Ms. Canales:
ABM hired Ms. Canales as a shuttle bus driver on August 7, 2007. (ECF No.11, p.3). On December 11, 2011, a street sweeper hit Ms. Canales’ ABM shuttle while she was driving it. (ECF No. 64-2). As a result she was assessed as having sustained thoracic and lumbar strains and released to return to work on March 13, 2012, with restrictions of no lifting over five pounds, no bending greater than five times per hour and no driving the company vehicle. (ECF No. 65-1).
In a letter dated January 5, 2012, Ms. Nelson advised Ms. Canales of a modified duty job consistent with her restrictions that was available for her on January 4, 2012. (ECF Nos. 64-3; 64-5, pp.6-7). Ms. Canales would be auditing passenger wait times outside at the Pikes Peak, landslide and overflow facilities at DIA and was advised to dress accordingly. Id. Ms. Canales’ pay, benefits and hours would not change as a result of the job modification. Id. Ms. Canales accepted the modification and had a vehicle in which to sit while completing her first shift on January 3rd but not for her shifts on January 4th or 5th. (ECF No. 64-5, p.7). Ms. Canales did not complete her full shift on January 4th or 5th because she complained that sitting outside in the cold caused her back to spasm painfully. (ECF Nos. 64-6, pp2-3; 73-5, p.1; 73-7, p.5)
In a letter dated January 6, 2012, Ms. Nelson informed Ms. Canales that ABM had a modified work duty job available consistent with her current work restrictions. (ECF No. 64-7). Ms. Canales would be performing passenger wait timing on B Concourse until midnight after which time she would be stationed at the turnstile and required to sweep and detail/clean the interior of buses. Id. She would continue to have her same work hours, wages and benefits. Id. The B Concourse was an indoor location which might be warmer and more in keeping with her medical restriction than her previous outside assignment(s). (ECF No.64-6, p.4). Ms. Canales refused to sign this modified duty letter although she stated she would do the work. (ECF No. 64-7). In a letter dated January 10, 2012, Ms. Nelson reiterated the job modification to B Concourse adding that it would be from inside the B Center core. (ECF No. 64-8) Ms. Canales signed the modification indicating that she accepted the modified work duty. Id.
Ms. Canales’ January 11, 2012, Physician Work Status (PWAS) report states that she can return to work immediately but could not lift more than five pounds, reach above her shoulders or drive a company vehicle and should avoid cold exposure. (ECF No. 65-2). On January 17, 2012, Ms. Canales was unable to complete her shift and was unable to work the next day. (ECF No. 73-5). On January 19, 2012, Ms. Canales accepted another modified work duty to sweep and detail/clean the interior of buses. (ECF No. 64-9).
From February 8, 2012 through April 9, 2012, Ms. Canales’ PWAS reports indicated that she was restricted from bending more than five times per hour. (ECF No.73-4, pp.3-6). That restriction was eliminated on her May 8, 2012, June 5, 2012 and July 12, 2012 PWAS reports however, the bending restriction was again imposed on Ms. Canales’ August 28, 2012 PWAS Report. (ECF Nos. 73-4, pp.7-9; 65-3).
In a letter dated August 30, 2012, Ms. Nelson proposed a temporary modified duty position within Ms. Canales’ current work restrictions. (ECF No. 64-10). The proposed administrative assistant position would require training, be temporary, at a lesser pay rate and would require Ms. Canales to apply for and be selected for the position in order to become permanent. (Id. at p.1). If she were chosen for the permanent position, her benefits would change to reflect the administrative/managerial plan. Id. Ms. Canales refused to sign or accept the modified position and left work. (Id. at p.2; ECF No. 64-11, p.1). However, upon further discussion with Ms. Nelson regarding Ms. Canales’ issues with the proposed hours, Ms. Canales signed and accepted the modified work position on September 4, 2012. (ECF No. 64-11).
A January 29, 2013, PWAS report released Ms. Canales with the following permanent restrictions: no lifting over 20 pounds, no bending greater than five times per hour and no pushing or pulling over 20 pounds of force. (ECF No. 65-4). In a letter dated February 4, 2013, ABM offered Ms. Canales permanent modified work as a bus driver on the Cargo, Tango or Airside routes. (ECF No. 64-12). Because she had been working a temporary modified position for an extended time she was required to go through a detailed training program beginning on February 19, 2013. Id. Rather than accepting or declining the position offered, Ms. Canales responded in writing on February 13, 2013, that she was taking pain medication and had been told by the attending physician’s assistant that she should not drive while on the medication. (ECF No. 64-12, p.2). A medical examination report for commercial driver fitness determination dated February 15, 2013, stated that Ms. Canales was “on multiple potentially sedating medications that disqualify her from driving a commercial vehicle.” (ECF No. 65-5).
On October 14, 2013, a medical examination report for commercial driver fitness determination stated that Ms. Canales had “some decrease in lumbar flexion but is able to squat without difficulty.” (ECF No.65-6). That examiner determined that she was qualified to drive when wearing corrective lenses and only intrastate. Id. In a letter dated November 3, 2013, Ms. Nelson renewed the position offered to Ms. Canales on January 29, 2013. (ECF No. 64-13, p.1). Ms. Canales accepted the permanent modified work duty on November 4, 2013. (ECF No. 64-13, p.2).
B. Disputed Facts:
1. Mr. Barrera:
The parties dispute whether Mr. Barrera complained about his perception that ABM discriminated in its modified job assignments based on ethnicity and/or whether there is a statistically significant pattern of discrimination by ABM. (ECF Nos. 11, p.6; 64-22, pp.4-6; 73-17; 73-20; 85-1, p.20).
2. Ms. Canales:
The parties disagree about why Ms. Canales did not have a vehicle for her modified job assignment on January 4, 2012 and January 5, 2012; whether she complained about the cold exacerbating her back injury and why she was absent for at least part of those two shifts. (ECF No. 64-5; 73-5; 73-6). Ms. Canales alleges that she was treated differently when injured and was reassigned to an “adverse” pretextual position auditing wait times in conditions that ...