FORSLUND v. NATIONAL TECHNOLOGY AND ENGINEERING SOLUTIONS OF SANDIA LLC (2021)

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court upon Defendant's Motion for Summary Judgment, filed November 9, 2020 (Doc. 39). Briefing is complete on this Motion and the Court is fully informed and advised on the matter. Doc. 51. Having considered the pleadings and the applicable law, the Court finds that the Motion is well-taken and is therefore GRANTED.

Background 1

Defendant Sandia National Laboratories (“Sandia”) is a contractor for the U.S. Department of Energy's National Nuclear Security Administration. See “About Sandia,” https://www.sandia.gov/about/index.html (last visited Jan. 27, 2021). The Court notes the importance of Sandia's work: its laboratories regularly engage in critical projects that support national security and technological innovation, and Sandia employees are known for their professional contributions to safeguarding the Nation and fostering significant scientific and engineering advancements.² Plaintiff Matthew Forslund (“Forslund”) worked for Sandia as a Principal Technologist from 2013 to 2019. He was terminated on April 2, 2019. Doc. 39-23. During his time with Sandia, Forslund calibrated and repaired test equipment in the Primary Standards Laboratory; work that could generally only be performed in-person and on-site inside the restricted-access tech area at Sandia. Pl. Dep. 11:6-16; 12:3-24; 13:14 – 14:12; Doc. 39-27. Forslund suffers from aphasia, which is medically defined as the loss of ability to understand or express speech. Doc. 45 at 7. Additionally, Forslund suffered a stroke approximately five years ago and has dealt with depression since the 1980s, when he was involved in a motorcycle accident. Pl. Dep. 18:19 – 21:25. He has a blood disorder and an injured leg. Id. Forslund represented to the New Mexico Human Rights Bureau in his October 2018 charge of discrimination filing that his disabilities were related to a blood disorder and the series of strokes he experienced in 2016. Doc. 39-25.

Forslund filed this lawsuit in state court on December 10, 2019.³ Doc. 1 (Notice of Removal). The action was removed to federal court pursuant to 28 U.S.C. §§ 1331 and 1441(a) on February 27, 2020. Id. On April 14, 2020, this Court dismissed Defendant Roger Burton from the action, and dismissed Forslund's New Mexico Human Rights Act and Intentional Infliction of Emotional Distress claims. Doc. 18. On May 26, 2020, Forslund filed his Amended Complaint, which contains three claims: discharge, retaliation, and hostile work environment due to disability in violation of the Americans With Disabilities Act (the “ADA”). Doc. 24.

Sandia now moves for summary judgment pursuant to Fed. R. Civ. Pro. 56 on all three claims. Doc. 39. Sandia argues that Forslund's claims fail because: (1) Forslund is not a “qualified individual” under the ADA, (2) Forslund has not established a prima facie case for the discrimination and retaliation claims, and (3) Forslund supports his hostile work environment claim with stale conduct that is neither severe nor pervasive. Id. Because the Court is granting the Motion based on its conclusion that Forslund is not a qualified individual under the ADA, it will not address Defendant's second and third arguments.

Legal Standard

“Summary judgment should be granted ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Felkins v. City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Once this burden is met, however, the nonmoving party must put forth specific facts showing that there is a genuine issue of material fact for trial; he may not “rest on mere allegations or denials [in] his [own] pleadings.” Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 259, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment because the requirement is that there be no genuine issue of material fact. Id. at 248-49, 106 S.Ct. 2505. A material fact is one that affects the outcome of the suit under governing law. Only disputes over material facts will properly preclude the entry of summary judgment. Id. at 248, 106 S.Ct. 2505.

Discussion

To establish the three claims contained in the Amended Complaint, all brought under the ADA, Forslund must show: (1) that he is disabled within the meaning of the ADA; (2) that he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) that he was discriminated against because of his disability. Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003). The parties do not dispute that Forslund is disabled within the meaning of the statute. The Court, therefore, will turn to the issue of whether Forslund is a “qualified individual” under the ADA.

The ADA prohibits discrimination in employment against “a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The Motion asserts that Forslund is not a qualified individual because the record establishes that he was unable to perform an essential function of his position, namely full-time and predictable attendance.⁴

A. Regular and reliable attendance is an essential function of the Principal Technologist position.

A plaintiff bears the burden of proving he is able to perform the essential functions of the job. Mason v. Avaya Commc'ns, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004) (citing US Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002)). “Essential functions” are “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). Evidence considered in determining whether a particular function is essential includes: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the work experience of past incumbents in the job. 29 C.F.R. § 1630.2(n)(3).

Sandia provides the Court with an undated job description for the Research and Development Laboratory Support Technologist, which states that a technologist is required, among other things, to work in a laboratory, operate and maintain experimental equipment, and perform experiments. Doc. 39-27. Sandia provides other evidence that regular and reliable attendance is an essential function of Forslund's laboratory work. Forslund's Senior Manager, Meaghan Carpenter, states in her declaration: “Full-time, regular, and reliable attendance is an essential function of the Principal Technologist position. Reliability is particularly important.” Doc. 39-28 ¶ 3.

Under these circumstances, the Court will not second guess Sandia. See Tate v. Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir. 2001) (stating that the essential function “inquiry is not intended to second guess the employer or to require the employer to lower company standards”). The Tenth Circuit has recognized, and it is readily apparent, that physical attendance is an essential function of most jobs. Mason, 357 F.3d at 1119. Furthermore, the Court will generally defer to the employer's judgment when its description of what constitutes an essential function “is job-related, uniformly enforced, and consistent with business necessity.” Id. (citing Davidson v. Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003)). Here, the agenda from Sandia's Essential Functions Accommodation Committee (“EFAC”) March 25, 2019 review of Forslund's absences shows that regular and reliable attendance is uniform across all positions at Sandia. Doc. 39-22 at 1. Clearly, attendance is also job-related and consistent with business necessity. Therefore, the Court finds that there is no genuine issue as to whether full-time, predictable attendance was an essential function of Forslund's position at Sandia.

B. Forslund was unable to perform this essential function and no reasonable accommodation was available.

Next, the Court turns to Forslund's attendance record to examine whether Sandia has sufficiently established that Forslund was unable to perform the essential function of regular and reliable attendance. The relevant 2018 timeline is as follows:

• On February 12, 2018, Forslund presented Sandia a Physician's Certificate of Injury or Illness (“PCII”) stating that he would be unable to work until “estimated March 19, 2018.” Doc. 39-9.

• On March 26, 2018, Sandia received a second PCII, extending Forslund's leave of absence until “estimated 6/22/2018 [June 22, 2018].” Doc. 39-10.

• Despite the two notes stating he was unable to work, Forslund would come in to work sporadically, without authorization from his physician or Sandia. Doc. 39-18.

• On April 20, 2018 Sandia received a third PCII, which kept the June 22, 2018 return date, but stated that Forslund now needed only three days off per week.

• Doc. 39-11. Forslund began working under the reduced workweek plan but had to take additional days off. He used his paid sick leave for these additional days off. Doc. 39-18.

• On June 28, 2018, Forslund submitted a fourth PCII. It was dated June 26, 2018 and stated that Forslund was now unable to attend work and needed to be completely off until December 31, 2018. Doc. 39-12.

• Plaintiff still came into work sporadically until July of 2018, when Medical Case Manager Amy Jones told Forslund that the June 26th PCII, which was the most recent on file at that point, stated that he was off work until December 31, 2018. Ms. Jones told Forslund that he needed to either provide Sandia with an updated PCII or adhere to the June 26th PCII. Doc. 39-32 at 2–3.

• July 19, 2018 was the final day Forslund recorded any actual work time in 2018. Doc. 39-33.

• Forslund remained on paid leave for the next seven months. Pl. Dep. 82:23 – 83:9.

On September 17, 2018, approximately two months after Forslund logged his final day on site, Sandia reviewed progress notes from Forslund's doctor and was alarmed to learn that Forslund had stated that he was afraid he would harm someone at work due to interpersonal difficulties. Doc. 39-18 at 5. Based on this progress note, Sandia referred Forslund for a clinical evaluation to determine if he could safely return to work. According to Sandia's Medical Case Manager, Forslund worked only twelve full workdays in 2018. Id. at 1.

The results of the clinical evaluation were released on February 7, 2019. The evaluation determined that Forslund was not a threat. Sandia authorized him to return to work without restrictions, and he did so. Doc. 39-19. Upon returning, Forslund's work continued to be sporadically interrupted:

• On February 27, 2019 and February 28, 2019, Forslund called in sick. Doc. 39-22 at 3.

• On March 11, 2019, Forslund provided Sandia Medical with a fifth PCII, dated March 8, 2019. This PCII provided that he was unable to work and needed to be off work 2-3 days per week, this time through September 1, 2019. Doc. 39-13.

On March 25, 2019 the EFAC met to consider whether Forslund was able to perform the essential functions of his job and whether Sandia needed to provide continued accommodation. Doc. 39-22. The EFAC concluded that Forslund's “recurrent inability to work for extended periods of time could no longer be accommodated due to the impact on the organization's business needs. Full-time, regular, and reliable attendance is an essential function of the position, and the ability to accommodate [Forslund's] extensive absences can no longer be sustained.” Doc. 39-23 at 1. Accordingly, the EFAC determined that Sandia should end Forslund's employment effective April 2, 2019. Id.

Forslund was cleared by his doctor to work after December 31, 2018, but he was unable to return to work during the time period of January 1, 2019 to February 7, 2019 because Sandia was still in the process of determining whether he could safely work on-site. Therefore, the Court will not take this time period into consideration because Sandia prohibited Forslund from working during this time regardless of his ability to do so. The relevant time periods are February 12, 2018 to December 31, 2018 and February 25, 2019 to April 2, 2019, during which Forslund, through his submission of PCIIs, represented to Sandia that his treatment precluded him from working in any capacity or keeping his regular or modified work schedule. During the first period, Forslund's PCIIs establish that he would be unable to work at all for over half of 2018, and his employment records show that he was able to work for approximately 15% of that year. The second period covers a shorter amount of time, and while Forslund did attend work during this period he still took multiple sick days, asked for a reduced workweek, and could not predict which days each week he would need off.

Forslund admits to virtually all details presented in the above stated timeline. Doc. 45. The Response inserts commentary into Sandia's proffered facts, but the added information is rarely contradictory or material. Forslund's opposition is largely based on an assertion that his excessive absences were “partly due to the hostile work environment” which caused him to suffer from depression. Doc. 45 ¶ 35. Forslund does not present the Court with any evidence that he informed Sandia that his medical leave was based on depression caused by a hostile work environment. Each PCII states that Forslund was diagnosed with treatment-resistant major depression, but this diagnosis is never linked to Sandia. Indeed, each PCII checks “yes” to the question “Was this illness/injury the result of an accident?” and explains that the cause of said accident was “Motor Vehicle – Hit head on by Drunk Driver.” This information is not dispositive, but it supports the Courts finding that Forslund's added commentary does not generate a genuine dispute of material fact. The Reply reiterates that Forslund represented to Sandia that his absences in 2018 were due to his doctor's determination that he was physically unable to work for nearly the entirety of 2018. Based on the facts discussed above, the Court finds that Forslund was unable to perform an essential function of his job.

Because Forslund's disability precludes him from performing an essential function of his position, the Court must next determine whether Sandia could reasonably accommodate him. Forslund argues that the ADA mandates that Sandia consider placing him in an alternative or part-time position, which would constitute a reasonable accommodation. Doc. 45 at 8.

Under the law of the Tenth Circuit, allegations that an employer failed to engage an “interactive process” is not an independent cause of action. Rather, the employee alleging failure to accommodate must prove that “a reasonable accommodation was possible and would have led to a reassignment position.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1207 n. 29 (10th Cir. 2018) (internal citation & quotation omitted). Additionally, when an employee desires reassignment as an accommodation, while not requiring the use of certain magic words, the employee nevertheless must express his desire for a new position. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999). It is also the employee's burden on summary judgment to establish that he asked for reassignment. Id. at 1179.

The Response fails to argue that Forslund asked for an alternative or part-time position. Perhaps the failure to accommodate argument is premised on the fact that, in February of 2019 during a meeting with Human Resource Business Partner Shelly Walker, Forslund expressed a desire to be transferred to another manager. Shortly after this meeting, Forslund was told that his transfer request had been granted and would become effective on March 15, 2019. See Doc. 39-4 (Declaration of Roger Burton); Doc. 39-36. However, this scenario does not satisfy Forslund's burden—requesting a new manager is likely not an “accommodation” under the ADA. See 42 U.S.C. § 12111(9). Even assuming otherwise, there is no genuine issue as to whether Sandia accommodated Forslund in this regard.

Moreover, contrary to what the Response claims, Sandia did provide evidence that it considered alternative or part-time positions for Forslund. The EFAC agenda shows that Sandia has a 60-day alternative job search procedure, but this procedure is waived if, like Forslund, an employee is unable to regularly and reliably attend work. See Doc. 39-22. Forslund stated in his deposition that he received ketamine infusions generally once a month, and that there was no fixed day of the month where he received these infusions. Pl. Dep. 81:13 – 82:8. Forslund stated that these infusions would affect him “differently every time” and that he would not be able to ascertain whether he needed a day off work until he woke up on a given day. Id. This information strongly supports the EFAC's decision to waive the 60-day alternative job search, which was based on the plain reality that reliable attendance at work is an essential function of all positions at Sandia. Doc. 39-22. Forslund's inability to reliably attend work leads the Court to determine that an interactive process is not necessary in this case because the accommodation sought, an alternative position where reliable attendance is not required, would be impossible to provide. Hines v. Chrysler Corp., 231 F. Supp. 2d 1027, 1047 (D. Colo. 2002) (citing Smith, 180 F.3d at 1172). Under these circumstances, there is no genuine issue as to whether Forslund is a “qualified individual.” The Court finds that Forslund does not meet the statutory and regulatory requirements for being a “qualified individual” under the ADA because he was unable to reliably attend work during the relevant time period. Therefore, the Court concludes that, as a matter of law, Sandia is entitled to summary judgment in this case.

Conclusion

For the reasons discussed in this Memorandum Opinion and Order, the Court hereby grants Defendant's Motion for Summary Judgement. A Rule 58 Judgment shall issue separately.

IT IS SO ORDERED.

FOOTNOTES

2.   Sandia is largely known for its work in ensuring the United States’ nuclear arsenal is safe, secure, and reliable. See “Nuclear Weapons,” https://www.sandia.gov/missions/nuclear_weapons/index.html (“Sandia is the engineering arm of the U.S. nuclear weapons enterprise. We weaponize the nuclear explosive package to create an effective and sustainable nuclear deterrent.”) (last visited Jan. 28, 2021). However, Sandia employees and partners also engage in a number of other consequential endeavors such as advancing research in renewable energy and participating in more than fifty science and engineering projects related to the ongoing COVID-19 pandemic. See “Renewable Energy,” https://energy.sandia.gov/programs/renewable-energy/ (last visited Jan. 29, 2021); “COVID-19 Research,” https://www.sandia.gov/news/publications/covid-19_research/index.html (last visited Jan. 29, 2021).

3.   See Doc. 1-2 (original complaint filed in the 2nd Judicial District Court Bernalillo County, case no. D-202-CV-2019-09567).

4.   In making its arguments, Sandia asserts that Forslund is estopped from claiming that he is a qualified individual because his successful Social Security Administration disability claim represented that he cannot work at all. It is well-settled that a successful disability claim is not a per se bar to becoming an ADA plaintiff, as the plaintiff must be afforded an opportunity to explain the inconsistency. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804–06, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999); Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1209 (10th Cir. 2011). Because the Court is not basing its grant of summary judgment on this portion of the record, it will not consider the estoppel argument.

WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE