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Nunez v. Lifetime Products, Inc.

United States District Court, D. Utah

April 26, 2017

OSCAR NUNEZ, Plaintiff,
v.
LIFEETIME PRODUCTS, INC., Defendant.

          Paul M. Warner Magistrate Judge.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          ROBERT J. SHELBY United S . S District Judge.

         In 2001, Defendant Lifetime Products, Inc. fired Plaintiff Oscar Nunez. Believing his firing unlawful, Nunez filed a Charge of Discrimination with the Utah Antidiscrimination and Labor Division, and after that Charge was dismissed, later filed this lawsuit alleging violations of the Age Discrimination and Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA). The case was referred to Magistrate Judge Paul Warner, [1] who issued a Report and Recommendation recommending the court grant Lifetime's Motion for Summary Judgment.[2] Nunez timely objected to portions of the Report and Recommendation.[3] After review of the record, the Report and Recommendation, and Nunez's objections, the court adopts the Report and Recommendation in full.

         STANDARD OF REVIEW

         Summary judgment is appropriate only if there is “no genuine dispute as to any material fact” and the movant is “entitled to judgment as a matter of law.”[4] Where, as here, a magistrate judge has issued a Report and Recommendation, the court will review de novo any parts of the Report and Recommendation that were objected to.[5] Any part not objected to will be reviewed for clear error.[6]

         ANALYSIS

         Lifetime moved for summary judgment on Nunez's ADEA claims, his ADA claims, and his FMLA claims. The court will address each in turn.

         A. The ADEA Claims

         Nunez contends Lifetime violated the ADEA by discriminating against him based on his age. ADEA claims are assessed under the McDonnell Douglas burden shifting framework, which requires that a plaintiff initially demonstrate only a prima facie case of unlawful discrimination, after which the burden of production shifts to the employer to identify a legitimate, nondiscriminatory reason for the adverse employment action.[7] If the employer provides such a reason, the burden shifts back to the plaintiff to show that the employer's proffered reason was pretextual.[8] To make a prima facie case for age-related discrimination, Nunez must show: (1) he is a member of an ADEA-protected class; (2) he suffered an adverse employment action; (3) he was qualified for the position at issue; and (4) he was treated less favorably than others not in the protected class.[9]

         Judge Warner determined that the majority of Nunez's allegations of age-related discrimination are time barred, and any non-time-barred claims fail because Lifetime provided nondiscriminatory reasons for firing Nunez. Nunez did not object to Judge Warner's recommendation with regard to the time-barred claims, and the court concludes that recommendation is correct. It is not clear from the Complaint or the briefing what claims, if any, are not time barred. But what is clear, after de novo review, is that even if Nunez could make a prima facie showing that his firing was age based, Lifetime has met its burden of providing nondiscriminatory reasons for Nunez's firing, and Nunez has not raised a triable issue of fact about whether those reasons are pretextual. For example, Lifetime demonstrate that Nunez received several “Attendance Occurrences” (citations for being absent without permission)[10]; he sent negative and degrading emails and was subsequently required to filter all outgoing mail through his supervisor, a requirement he did not always comply with[11]; he was frequently argumentative[12]; and he yelled at coworkers.[13] Even if Nunez could show that age played some role in his firing, he has provided no evidence that “age was the factor that made a difference, ” and for that reason, any ADEA claims that are not already time barred fail.[14]

         B. The ADA Claims

         Nunez asserts two ADA claims. First, he claims Lifetime failed to accommodate his disability. Second, he claims Lifetime retaliated by firing him because he requested an accommodation. Lifetime argues that all properly presented accommodation requests were granted, and that Nunez's firing was unrelated to his requests. Because Nunez timely objected to Judge Warner's conclusions on his ADA claims, these claims will be reviewed de novo.

         i. The ADA Accommodation Claim

         Nunez contends he twice requested a disability accommodation but was denied both times. The court analyzes an ADA accommodation claim under the McDonnell Douglas burden shifting framework, meaning Nunez is initially required to make only a prima facie showing of failure to accommodate in order to shift the burden of production to Lifetime.[15] To do so, Nunez must show: (1) he had a disability; (2) Lifetime had notice of the disability; (3) Nunez could perform the essential parts of his job with a reasonable accommodation; and (4) Lifetime refused to provide an accommodation.[16]

         Nunez contends he first requested an accommodation on May 9, 2011. On that date, his supervisor found him sitting while performing quality checks. She asked Nunez to stand, and Nunez responded that he should be allowed to sit because he could perform his job better that way, and that as a “secondary issue, ” standing made his back hurt. Nunez's supervisor later denied his verbal request to sit while performing checks, which Nunez contends was an improper failure to accommodate under the ADA.

         Judge Warner concluded this claim failed because Nunez had not met the second element of the claim: adequate notice to Lifetime. Lifetime has a written policy requiring accommodation requests to be presented in writing to an HR representative. Judge Warner concluded, on this basis, that Nunez's oral request to his supervisor did not adequately put Lifetime on notice that he was requesting an accommodation.

         Some courts have adopted the view that a failure to follow an employer's procedure for requesting a disability accommodation can preclude a claim for failure to accommodate.[17] The Tenth Circuit has not directly addressed the issue, though it has stated that a “request does not have to be in writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation.'”[18] But it has also suggested-arguably in dicta-that a failure to follow a company policy may be fatal to a subsequent failure-to-accommodate claim.[19]

         The court need not resolve in this case whether failure to follow an employer's procedures for requesting an accommodation bars a subsequent claim, for another requirement bars Nunez's claim: the requirement that an employee “make clear that [the employee] wants assistance for his or her disability.”[20] In this case, Nunez made clear that his request to sit was primarily based on his belief that he could do the job better that way; his “back [was] a secondary issue.”[21] Thus, even assuming Nunez's failure to follow Lifetime's accommodation request procedure was not fatal to his claim, the fact that he framed his request as performance based meant Lifetime was not on notice that a disability-based accommodation request was being made. His May 9, 2011 claim fails for that reason.

         Nunez also requested an accommodation on August 3, 2011, this time in a formal disability accommodation request document properly submitted to an HR representative requesting permission to sit for five minutes each hour. As Judge Warner properly noted, that request was granted by Lifetime, so it cannot give rise to an ADA claim.

         ii. The ADA Retaliation Claim

         Nunez also contends his firing was retaliation for one or both of his accommodation requests. This claim is analyzed under the McDonnell Douglas framework as well.[22] To establish a prima facie retaliation claim, Nunez must show: (1) he engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) the materially adverse action was causally connected to the protected activity.[23] Requesting an accommodation is clearly protected, and any employee would deem firing to be materially adverse. But Nunez has provided no evidence to connect the requests and his firing. The only connection between Nunez's May 9 request and his August 11 firing is temporal proximity, and a gap of three months, without more, is not sufficient in the Tenth Circuit to establish a causal connection.[24] And while the August 3 request was much closer to Nunez's August 11 firing, Lifetime ...


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