Ruiz v. Woodward, Inc.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Marcia S. Krieger Senior United States District Judge

         THIS MATTER comes before the Court pursuant to the Defendant's (“Woodward”) Motion for Summary Judgment (# 34), Mr. Ruiz's response (# 39), and Woodward's reply (#42); and Mr. Ruiz's Motion for Partial Summary Judgment (# 35), Woodward's response (# 38), and Mr. Ruiz's reply (# 43). Also pending are several unopposed motions (## 37, 41, 45) seeking to restrict public access to certain filings, and Mr. Ruiz's motion (# 46) to substitute a signed affidavit for an unsigned one.

         FACTS

         The Court summarizes the pertinent facts here and elaborates as necessary in its analysis. Mr. Ruiz was employed by Woodward as a Global Supply Manager (“GSM”). GSMs are responsible for managing Woodward's relationships with its domestic and international suppliers, including negotiating contracts, attending meetings, and addressing any production issues the suppliers might experience. Often times, these tasks are performed at various Woodward offices or suppliers' locations, which requires GSMs to engage in significant domestic and international travel. The exact extent to which such travel is required is disputed and discussed in more detail below.

         Mr. Ruiz suffers from renal cell carcinoma, a type of cancer that affects his kidneys. He had a kidney removed in or about 2007, and since then has continued to suffer from chronic kidney disease and hyperpohospatemia (high phosphate levels in the blood, a sign of poor kidney function). The extent to which this condition affects Mr. Ruiz's activities of daily living are also in dispute and discussed in more detail below.

         On May 10, 2016, Dr. Rubin, one of Mr. Ruiz's treating medical providers, issued a letter stating:

I have concerns about [Mr. Ruiz's] travel to Mexico. Both from a general stress as well as an environmental stress perspective. Travel causes Mr. Ruiz to unfavorably augment his exercise routine as well as interrupts the continuum of his diet. To boot, he is exposed to toxic chemicals such as solvents which cause endocrine disruptions[ ] and may be at the root of his current endocrine disruptions. Moreover, Mr. Ruiz has only one kidney to help remove these chemicals from his blood, leaving him at a disadvantage and thus a higher overall body burden. I would propose a travel restriction over the next 6 months.

         Woodward's Human Resources department discussed Dr. Rubin's letter, but took no immediate action. Mr. Ruiz also provided the letter to Mark Alvis, his direct supervisor. Mr. Alvis immediately advised Woodward's HR department that Mr. Ruiz “does not have any travel plans for the near future and, at this point, I will not ask him to [travel].”

         At roughly the same time as the letter was considered, an issue arose with a Woodward supplier named Hubbell located in Monterey, Mexico.^[1] Because GSMs are expected to tend personally to the needs of their assigned clients, Mr. Ruiz would be responsible for traveling to Hubbell's location. But Mr. Alvis, mindful of Mr. Ruiz's health concerns, instructed another GSM to travel to Hubbell instead.

         In late June 2016, Woodward finally addressed Dr. Rubin's letter. Woodward requested that Mr. Ruiz meet with Dr. Mull, a Woodward corporate physician. At the conclusion of an appointment on June 27, 2016, Dr. Mull requested that Mr. Ruiz obtain more information from his physician about his condition and any possible restrictions. The next day, Mr. Ruiz produced a letter from his nephrologist, Dr. Simmons, that stated:

You face travel-related risks to your kidney if you develop dehydration from excessive sweating or traveler's diarrhea. A safe food and water supply and an air-conditioned work environment is essential. You are at risk of developing overt diabetes if you eat a high carbohydrate-high fat diet, gain weight and do not engage in regular exercise. . .

From the kidney viewpoint, whether or not you can travel for work depends on the circumstances of individual trips. If you are staying at an air conditioned hotel and working in an air conditioned facility where you receive liquids and meals from vendors that meet the health department requirements of commercial restaurants in the United States then you can travel and work there as long as you have regular work hours and mealtimes. The same requirements apply both domestically and internationally. They are life long. I recommend that you speak with your supervisors concerning the details of individual trips in deciding what is acceptable. I cannot provide blanket approval or restrictions since it depends on the specifics of a trip as I have described above.

         Within a day of receiving Dr. Simmons' letter, Dr. Mull prepared his own report that stated that Mr. Ruiz “[m]ay travel to 1^st world countries and domestically. Must have air conditioned work space and lodging. Food and liquids must meet commercial standards of the United States.” Dr. Mull's report notes that these restrictions are permanent, although Mr. Ruiz disagreed - Mr. Ruiz believed that a six-month restriction was all that was required.

         On July 18, 2016, Mr. Ruiz completed a Reasonable Accommodation Request Form. He indicated that he was requesting “no travel outside of the U.S. and limited [travel] in U.S., ” explaining that “excessive travel and travel outside of U.S. causes extreme harm to my body. It increases my health risks.” Mr. Ruiz further mentioned “stress from travel and exposure to manufacturing chemicals . . . that exists in 3d world countries and many domestic manufacturing facilities. . . increases my risk for both kidney dialysis and kidney failure since I have only one kidney. Furthermore, stress from travel and unsanitary exposure that exists in 3d world countries and domestic locations which do not meet U.S. E.P.A. standards will cause life limiting harm.”

         Woodward's HR department then had Mr. Alvis prepare a document identifying Mr. Ruiz's expected travel obligations for the next year (the “Travel Requirements Document”). Mr. Alvis identified 8 suppliers -- 5 domestic and one each in Mexico, the UK, and France - that Mr. Ruiz would be expected to visit at least once in the upcoming year. In addition, he estimated that there might be two unexpected “crisis/triage events” requiring Mr. Ruiz to travel to any supplier. Woodward asked Mr. Ruiz to address the Travel Requirements Document, and Mr. Ruiz indicated that he believed he could travel to two of the suppliers -- one in Wisconsin and one in Wyoming -- with certain accommodations (i.e. “office only, no exposure to manufacturing [floor] because of chemicals”). But he stated that no accommodations would allow him to travel to any of the other six suppliers. In most instances, Mr. Ruiz's objections to traveling to the suppliers was based on his exposure to chemical or environmental contaminants and the fact that travel outside of the Mountain time zone would require him to disrupt his morning exercise routine. See Docket # 39-8 at 3 (refusing to travel to supplier in Western New York because “sale baths, chemicals, varnishes being used. Ventilation system [ ] poor. . . A/C in offices, can't recall on manufacturing floor. . . Two hour time zone difference would require that I get up at 3:30 MT to exercise before supplier visit . . . I cannot travel to this supplier with or without a reasonable accommodation”) and at 4 (refusing to travel to supplier in U.K., despite never having been to the facility in question, because “Definitely no time for exercise while traveling . . . I cannot travel to this supplier with or without a reasonable accommodation.”).

         A few days later, Mr. Ruiz met with HR representative Amy McNaughton to discuss possible accommodations. Ms. McNaughton proposed several accommodations to address the concerns raised in Dr. Rubin and Dr. Simmons' letters, as well as the issues raised by Mr. Ruiz in the Travel Requirements Document. Among the accommodations suggested by Ms. McNaughton were limited working hours when traveling and Mr. Ruiz's use of a ventilator mask when working in chemical-polluted areas. Mr. Ruiz responded that he did not believe those accommodations would be sufficient, although the record does not clearly identify his reasons.^[2]Mr. Ruiz testified at his deposition that he proposed alternative potential accommodations, including having suppliers travel to Colorado instead of him traveling to them, conducting supplier meetings by telephone or videoconference, and having other GSMs engage in necessary travel on his behalf for the six-month period that he believed an accommodation was necessary. It is not clear what response, if any, Ms. McNaughton or Woodward had to these proposals. Ms. McNaughton and Mr. Ruiz then discussed the possibility of Mr. Ruiz looking for vacant positions at Woodward, but no available positions matched Mr. Ruiz's qualifications and preferences and he chose not to apply for any other openings.

         Although there is some dispute as to when the decision was first announced, it is undisputed that in or about early August 2016, Woodward concluded that it could not accommodate Mr. Ruiz's restrictions. Thus, Woodward terminated Mr. Ruiz's employment.

         In this action, Mr. Ruiz asserts five claims: (i) that his termination was the result of discrimination against him on the basis of his disability in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; (ii) discriminatory failure to hire, in that Woodward refused to consider Mr. Ruiz for other open and available positions due to his disability, in violation of the ADA; (iii) failure to accommodate Mr. Ruiz's disability, in violation of the ADA; (iv) retaliation for having engaged in protected activities - namely, for having requested an accommodation - in violation of the ADA; and (v) age discrimination, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623. (Mr. Ruiz has since withdrawn his age discrimination claim.)

         Both Woodward and Mr. Ruiz now move for summary judgment. Woodward's motion (# 34) argues that: (i) Ruiz cannot show that he is “disabled” under the ADA because he is not substantially limited in a major life activity; (ii) Mr. Ruiz cannot show that he was “qualified” for his position because he was unable to perform, with or without an accommodation, the essential function of traveling to suppliers' locations; (iii) that Mr. Ruiz cannot show that he was discriminatorily rejected from any open positions because he never actually applied for such positions; and (iv) Mr. Ruiz cannot establish that he was subjected to an adverse employment action (other than termination) that would support his retaliation claim and cannot demonstrate that any such action was a pretext for retaliation. Mr. Ruiz's motion (# 35) seeks summary judgment in his favor on his failure to accommodate claim, as well as on Woodward's affirmative defenses of failure to exhaust, failure to mitigate damages, waiver, and estoppel.

         ANALYSIS

         A. Standard of review

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

         If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         This case involves cross-motions for summary judgment. "Because the determination of whether there is a genuine dispute as to a material factual issue turns upon who has the burden of proof, the standard of proof and whether adequate evidence has been submitted to support a prima facie case or to establish a genuine dispute as to material fact, cross motions must be evaluated independently." In re Ribozyme Pharmaceuticals, Inc., Securities Litig., 209 F.Supp.2d 1106, 1112 (D. Colo. 2002); see also Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) ("Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.").

         B. Woodward's motion

         The Court begins with Woodward's motion for summary judgment. Because all of Mr. Ruiz's ADA claims require proof that Mr. Ruiz is both “disabled” and “qualified, ” as those terms are defined in the ADA, the Court begins with those inquires.

         1. Definition of ...