United States District Court, D. Colorado
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
D. DOMENICO JUDGE
March 25, 2015, Plaintiff Michael Sanchez was injured while
working for Defendant Denver Water. He sues Denver Water for
discrimination, failure to accommodate, and retaliation under
the Americans with Disabilities Act (“ADA”) and
age discrimination under the Age Discrimination in Employment
Act (“ADEA”), and Travelers Indemnity Company for
bad faith breach of a workers' compensation insurance
contract. Denver Water moves for partial summary judgment on
the ADA and ADEA claims, asserting it isn't liable for
any conduct after August 21, 2015 because Mr. Sanchez failed
to exhaust administrative remedies. (Doc. 39.) For the
following reasons, the Court GRANTS the
facts relevant to this motion are not in
dispute. Plaintiff Michael Sanchez was employed as
a water service worker for Defendant Denver Water, a
municipal utility owned and operated by the City and County
of Denver. On March 25, 2015, he was injured on the job when
he pulled a hydraulic drill from the side cabinet of a truck,
slipped, and twisted his lower back.
August 21, 2015, Mr. Sanchez filed a charge with the Equal
Employment Opportunity Commission (“EEOC”)
alleging discrimination based on age and disability from
March 25 to August 20, 2015:
Since January 4, 1996, I have been employed and have worked
my way up from Meter Reader to Service Worker 3. Throughout
my employment, I have performed my job duties in a
satisfactory manner. On March 25, 2015, I was injured while
on the job.
On August 11, 2015, Joe Duran, Distribution Operations
Supervisor, denied me reasonable accommodation, while two
younger employees in their 20's were given accommodation
lasting up to 7 months.
On August 11, 2015, Workers' Compensation Dr. Ma-cauley,
indicated that he could not see me working longer than 5
years. I believe he was referring to my age.
On August 11, 2015, I was placed on involuntary FMLA dating
back to March 25, 2015. I believe it is because of my
disability and age.
I am aware of other positions within Water Control that can
accommodation [sic] my disability, yet I was told that
currently light duty positions were not available.
Amended Complaint (the “Complaint”), Mr. Sanchez
alleges that from August 5, 2015 to March 2016, Denver Water
“continued to receive medical documentation indicating
that Mr. Sanchez's injury was work related and Mr.
Sanchez could return to work with temporary
restrictions” but “continued in its refusal to
engage in the interactive process and would not consider
allowing Mr. Sanchez an accommodation of a light
duty/modified duty work assignment” or transfer him to
another position, despite several requests. (Am. Compl., Doc.
27 ¶¶ 125- 26.) Specifically, on November 12 and
December 7, 2015 two different doctors indicated an injury to
Mr. Sanchez's lower back; he alleges those reports were
“ignored.” (Id. ¶¶ 128-31.)
And on January 14 and March 14, 2016, Mr. Sanchez
“again asked Denver Water to accommodate his disability
by letting them know that he was willing to do any light
duty.” (Id. ¶ 134.)
March 31, 2016, Denver Water terminated Mr. Sanchez. On
November 10, 2017, he filed an amended charge of age
discrimination, disability discrimination, and retaliation,
adding the following to the factual allegations contained in
his original charge:
Since March 25, 2015 and continuing until my discharge on
March 31, 2016, I was been [sic] denied reasonable
accommodation. . . . On March 31, 2016 I was discharged from
my position in retaliation for participating in a protected
amended charge was identical to the initial charge, except
that Mr. Sanchez ticked the “retaliation” box and
added the quoted language. The other discriminatory acts
alleged were repeated verbatim. (Compare Doc. 39-1
with Doc. 43-1.) The amended charge did not contain
any mention of the November 12 and December 7, 2015
doctors' reports or the January 14 and March 14, 2016
requests for accommodation referenced in the Complaint.
December 19, 2017, Denver Water received the amended charge
from the EEOC. In a cover letter accompanying it, the EEOC
Please be advised that on May 8, 2016, the Equal Employment
Opportunity Commission (EEOC) received Plaintiff's letter
asking to amend the charge to include retaliation, which
would have constituted a timely charge. As a result of an
administrative error by EEOC staff, the charge was misfiled
and the EEOC failed to notify you of this charge within ten
days of our receipt of the charge.
(Doc. 39-2.) On January 18, 2018, Denver Water responded to
the merits of the amended charge:
In response to Charging Party Michael Sanchez's Amended
EEOC Charge, please accept the following information related
to the single new allegation in the Amended Charge. . . . Mr.
Sanchez was terminated by Denver Water effective March 31,
2016 after it was determined that Denver Water could not
reasonably accommodate the medically-based restrictions on
his physical activities imposed by his physician.
(Doc. 43-2.) Denver Water did not raise any objection, at
that time, to the timeliness of Mr. ...