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Flores v. Albertsons, LLC

United States District Court, D. Utah

December 13, 2018

RAFAEL FLORES, Plaintiff,
v.
ALBERTSONS, LLC, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S [9] MOTION FOR SUMMARY JUDGMENT

          David Nuffer Judge

         Plaintiff Rafael Flores (“Mr. Flores”) filed this action against Defendant Albertsons, LLC (“Albertsons”), alleging that Albertsons discriminated against him, in violation of the Americans with Disability Act of 1990 (“ADA”).[1] Albertsons has moved for summary judgment on Mr. Flores's discrimination claim, asserting that (1) Mr. Flores was not qualified to perform the essential functions of his job; and (2) Mr. Flores was not subjected to an adverse employment action.[2] Mr. Flores filed an opposition.[3] Albertsons replied.[4]

         Because Mr. Flores has failed to establish a prima facie case of disability discrimination under the ADA, Albertsons's Motion for Summary Judgment is granted.

         Contents

         Statement of Undisputed Facts ....................................................................................................... 2

         Summary Judgment Standard ......................................................................................................... 7

         Discussion ....................................................................................................................................... 8

         Mr. Flores is not qualified to perform an essential function of his job ............................... 8

         Mr. Flores was not subjected to an adverse employment action ...................................... 11

         Order………. . ............................................................................................................................... 13

         STATEMENT OF UNDISPUTED FACTS[5]

         1. Mr. Flores is an employee of Albertsons.[6]

         2. In March 1996, Mr. Flores was hired “to work in [Albertsons's] Warehouse in the Salt Lake City Area.”[7]

         3. During his deposition, Mr. Flores agreed that he is a Warehouse Worker at the Salt Lake City Distribution Center.[8]

         4. Warehouse Workers are given various assignments such as fork lift driver, receiver, selector, and pallet-jack operator.[9]

         5. During his employment, Mr. Flores received assignments as a selector and fork lift driver.[10]

         6. On March 9, 2014, [11] Mr. Flores suffered injuries, including injuries to his arm, in a non-work related automobile accident.[12]

         7. Due to these injuries, Mr. Flores took a leave of absence from work to recover.[13]

         8. Mr. Flores's last day of work for Albertsons was March 5, 2014.[14]

         9. Mr. Flores requested and was granted leave under the Family and Medical Leave Act (“FMLA”).[15] This leave started March 9, 2014 and continued through June 7, 2014.[16]

         10. On July 16, 2014, Albertsons's Human Resources Manager, Mr. Parke, contacted Mr. Flores and discussed Mr. Flores's current FMLA leave and employment status. Mr. Parke told Mr. Flores that he would be sending him a letter, requesting documentation from Mr. Flores's doctor.[17]

         11. Mr. Flores was approved for short-term disability benefits from March 9, 2014 through September 6, 2014.[18]

         12. Under Albertsons's current leave policies, employees are entitled to 12 weeks of leave within a 12-month period.[19] As of September 7, 2014, Mr. Flores had reached the maximum allowable benefit period under Albertsons's Short-Term Disability Program. At this point, Mr. Flores went on Long-Term Disability.[20]

         13. On August 13, 2014, Mr. Flores's doctor, Dr. Walker, completed a Fitness for Duty Certification that stated Mr. Flores could not return to even modified work due to his severe right arm disability.[21]

         14. During his time on leave, Mr. Flores spoke with several of his friends who are also employed at Albertsons.[22]

         15. Mr. Flores's friends provided him with various forms of gossip relating to Mr. Flores's assignment, and one friend even asked if Mr. Flores would give his assignment to him.[23]

         16. Mr. Parke addressed these concerns with Mr. Flores, reminding him that job assignments were not handled that way.[24]

         17. Mr. Flores knew that his friends were not speaking on behalf of Albertsons.[25]

         18. Mr. Flores admits that Albertsons directly contradicted what his friends had told him.[26]

         19. On September 12, 2014, Mr. Flores provided Albertsons a document entitled “Physical/Occupational/Work Conditioning Therapy Prescription and Letter of Medical Necessity” from Dr. Walker of Granger Orthopedics, identifying the areas that needed improvement and the frequency of Mr. Flores's sessions.[27]

         20. At that time, Mr. Flores informed Mr. Parke that he told his doctor he could return to work on October 6, 3014.[28] Mr. Parke told Mr. Flores that if he intended to return to work, he would need to provide a doctor's authorization to return to work noting any restrictions.[29]

         21. On September 15, 2014, Mr. Parke sent Dr. Walker a Fitness for Duty Certification to complete, and attached the job description for a Warehouse Worker.[30] The job description for a Warehouse Worker included a section on “skills, physical requirements and working conditions”[31] that encompassed all of the assignments a Warehouse Worker may be asked to perform.[32]

         22. Dr. Walker completed the certification form and returned it to Mr. Parke.[33]

         23. In the certification form, Dr. Walker indicated that Mr. Flores could return to work with no restrictions.[34]

         24. Albertsons requires all newly hired employees and Warehouse Workers, who have been away from their positions for more than six months, to take a Physical Abilities Test prior to starting work.[35]

         25. Albertsons requires this test to ensure Warehouse Workers can safely perform their job duties and the minimum requirement for passing the test is a score of 100%.[36]

         26. Because Mr. Flores has been away from his job for 28 weeks (more than 6 months), he was required to take the Physical Abilities Test prior to returning to work.[37]

         27. On September 19, 2014, Mr. Flores took the Physical Abilities Test and did not pass with 100%.[38]

         28. Mr. Flores continues to be able to retake the Physical Abilities Test.[39]

         29. Mr. Flores informed Mr. Parke that he could not perform all of the duties under all of the assignments for Warehouse Workers-specifically, those of a selector.[40] However, Mr. Flores has not provided Albertsons with a doctor's note stating that he is physically incapable of performing the duties of a selector assignment.[41]

         30. Mr. Flores has never informed Albertsons that he is able to return to ...


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