Opinion
CV-20-02439-PHX-JAT
11-10-2022
Sharon McKenzie, Plaintiff, v. Salt River Project Agricultural Improvement and Power District, Defendant.
ORDER
JAMES A. TEILBOERG SENIOR UNITED STATES DISTRICT JUDGE
In this action Plaintiff Sharon McKenzie sues her employer, Defendant Salt River Project Agricultural Improvement and Power District (“SRP”), under Title I of the Americans with Disabilities Act (“ADA”). SRP demoted McKenzie from her position as a Material Handler 3 to a lower-paying Material Handler 1 position following spine surgeries which, at least temporarily, limited McKenzie's physical abilities. McKenzie seeks, among other remedies, reinstatement to her former position and money damages for lost wages. SRP now moves for summary judgment, arguing that McKenzie is not a qualified individual under the ADA because she cannot perform the essential functions of her desired position. (Doc. 43). The motion is fully briefed. (See Docs. 49; 50). The Court now rules.
I. FACTUAL BACKGROUND
For the past fourteen years McKenzie has worked for SRP, a water and power utility. (Doc. 43-4 at 49; see id. at 9). Since 2012 she has been a Material Handler at SRP's Materials Management Central Warehouse in Tempe (“the Tempe Warehouse”). (Doc. 433 at 3; see Doc. 43-4 at 49). The Tempe Warehouse (one of three main SRP warehouses) stores materials required to maintain SRP's electrical utility infrastructure. (Docs. 43-1 at 4; 49-4 at 5). Material Handlers perform a variety of functions in support of SRP infrastructure maintenance: they receive materials (for example, electrical transformers, spools of cable wire, and large steel poles) which they inspect, inventory, and store on the warehouse shelves; they pull materials off the shelves upon request and ready them for pickup by SRP field crews; and they interact with linemen and other “customers” to ensure they received the materials they asked for and were satisfied with the warehouse's performance. (Docs. 43-1 at 5-6, 9; 43-5 at 9). Because many of the items are extremely heavy, moving materials onto and off of shelves and trucks often requires Material Handlers to use one of a number of forklifts. (Doc. 43-1 at 5).
Six kinds of forklifts are kept and used at the Tempe Warehouse: the “Pettibone,” a 10,000-pound-capacity extendable-boom forklift used to move poles; the “big Cat,” a 20,000-pound-capacity forklift used to lift objects, such as steel cable wire and transformers, that weigh more than 8,000 pounds; the “little Cat,” an 8,000-pound-capacity forklift; the “standard stand-up” forklift, which has a capacity between 2,000 and 4,000 pounds and is used for lifting pallets; the “reach,” an extendable-boom stand-up forklift with a capacity around 4,000 pounds used to pull pallets off shelves; and the WAV (or “Wave”) forklift, which has a raisable platform instead of forks. (Docs. 43-1 at 4, 8, 10; 43-5 at 8-10; 43-4 at 81). Not all SRP warehouses with Material Handler 3 positions have each kind of forklift. (See Docs. 43-8 at 6; 49-4 at 22). The West Valley Warehouse, for example, does not have a Pettibone because it is not used to store or distribute poles. (Doc. 43-7 at 6). The East Valley Warehouse also lacks a Pettibone. (Doc. 49-4 at 23). And although one Material Handler works at SRP's Facilities Warehouse, it has no forklifts at all. (Doc. 49-6 at 6).
Employees learn to use some of these forklifts and become familiar with the different areas of the warehouse in the entry-level Material Handler 1 position. (Doc. 43-7 at 3). To progress from Material Handler 1 to Material Handler 2 an employee must complete a number of classes (on subjects including communication, creativity, and inventory management), obtain several certifications (including for several types of standup forklifts), and display knowledge of warehouse and inventory functions including materials information, field deliveries, and palletization. (Doc. 43-4 at 75-77). To progress from Material Handler 2 to Material Handler 3 an employee must complete additional courses (including on leadership, critical thinking, decision-making, and conflict resolution) and obtain additional certifications (including for large forklifts and, for Tempe Warehouse personnel only, the Pettibone). (Id. at 80-81).
To progress to the Material Handler 3 position, employees are also expected to be able to perform all tasks relating to warehouse functions and inventory management, including all functions of receiving. (See Doc. 43-4 at 82). In practice, however, the numerous tasks Material Handlers as a group perform are divided unevenly so that any given Material Handler tends to specialize in one area or another. (See Docs. 43-4 at 62, 77, 82; 43-5 at 8-9; 43-7 at 5; 49-3 at 9; 49-6 at 13-14). For example, one Material Handler is primarily assigned to operate the Pettibone in the pole yard. (Doc. 43-5 at 8-9, 11). Other Material Handlers might be assigned to the yard office. (Doc. 43-7 at 5-7). And McKenzie presently works in the receiving area, assisting customers at the front desk, recording receipt of materials in the inventory system and putting received materials away. (Doc. 493 at 8-9).
In mid-November 2018 McKenzie took a leave of absence to undergo cervical spine surgery and did not return to work until mid-January 2019. (Docs. 43-4 at 49; 43-5 at 4). In releasing her to work, McKenzie's surgeon restricted her from lifting weights greater than 10 pounds and from repetitive overhead work. (Doc. 43-4 at 23). Over the course of the following months her surgeon issued a series of notes contracting and expanding her restrictions in various ways. (See Docs. 43-4 at 23-30; 49-5 at 2). By May her lifting restriction had increased to 50 pounds, while over the same period her overhead work restriction decreased to no overhead activities at all. (Doc. 43-4 at 25-26). In June a restriction on operating forklifts overhead was added and the weight-lifting restriction was removed entirely. (Id. at 27). In August these restrictions were relaxed to allow lifting 10 pounds overhead as well as overhead forklift operation for five minutes at a time with a two-to-four-hour break between sessions, but then tightened again less than a week later to restrict all forklift operation above eye level. (Id. at 28-29).
Following the August updates to her restrictions, SRP decided that McKenzie's restrictions were permanent and were preventing her from performing the essential functions of her job, (Doc. 43-3 at 4-5), and demoted McKenzie from a Material Handler 3 to a Material Handler 1, (Doc. 43-4 at 49, 96). Shortly after her demotion McKenzie obtained a note relaxing her forklift restrictions to allow forklift operation up to 15 feet. (Doc. 43-4 at 30). Then in late October McKenzie's doctor issued a note which read: “No lifting greater than 20 labs[.] No overhead lifting greater than 10 lbs.” (Doc. 49-5 at 2). Although McKenzie has never met or been directly examined by either of SRP's consulting physicians, (Doc. 49-7 at 3), upon reviewing McKenzie's medical records one of these physicians, Dr. Hurt, determined that McKenzie was unable to operate forklifts at all, (Doc. 43-4 at 40-41). SRP has not restored McKenzie to her previous Material Handler 3 position. (Doc. 8 at 3).
In December 2019 McKenzie filed a charge of discrimination with the EEOC. (Docs. 8 at 3; 43-6 at 2-3). The EEOC dismissed the charge on September 22, 2020. (Doc. 1 at 2). McKenzie filed her complaint in this case on December 18, 2020, timely asserting a claim under Title I of the ADA. (Id. at 4; 8-11); compare 42 U.S.C. § 12117(a), with Id. § 2000e-5(f)(1).
II. LEGAL STANDARD
The Court must grant summary judgment as to “each claim or defense-or the part of each claim or defense-on which summary judgment is sought. . . . 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.” Fed.R.Civ.P. 56(a). A fact is material if its determination “might affect the outcome of the suit under the governing law,” and a dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). To be entitled to summary judgment, the moving party must first identify the “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). At that point, to avoid summary judgment the nonmoving party must then “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (quoting former Fed.R.Civ.P. 56(e)). One situation in which summary judgment is warranted is when the nonmovant “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322. This is so because “a complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial.” Id. at 323.
In considering a motion for summary judgment, however, a court must neither “weigh the evidence and determine the truth of the matter,” nor “make any credibility determinations.” Zetwick v. County of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (first quoting Tolan v. Cotton, 572 U.S. 650, 656 (2014); then citing Anderson, 477 U.S. at 255). Rather, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255 (citation omitted).
III. ANALYSIS
The ADA prohibits, among other things, discrimination “against a qualified individual on the basis of disability in regard to . . . hiring, . . . discharge of employees, employee compensation, . . . and other terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, then, a plaintiff must “demonstrate that: (1) [s]he is disabled within the meaning of the ADA; (2) [s]he is a qualified individual able to perform the essential functions of the job with reasonable accommodation; and (3) [s]he suffered an adverse employment action because of [her] disability.” Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (citation omitted). SRP does not dispute that McKenzie is disabled under the ADA, and has conceded as much by admitting that problems following McKenzie's surgery “combined to substantially limit one or more of her major life activities.” (Compare Doc. 1 at 2, with Doc. 8 at 2; see also Doc. 43 at 1). And SRP does not seek summary judgment on the basis that McKenzie did not suffer an adverse employment action. Rather, SRP argues that it is entitled to summary judgment because McKenzie has failed to make a sufficient showing that she is a “qualified individual” under the ADA. (Doc. 43 at 17).
Whether a plaintiff is a qualified individual is itself a two-step inquiry: a court must first examine “whether the individual satisfies the requisite skill, experience, education and other job-related requirements of the position,” before considering “whether the individual can perform the essential functions of such position with or without a reasonable accommodation.” Bates v. United Parcel Servs., Inc., 511 F.3d 974, 990 (9th Cir. 2007) (cleaned up). SRP concedes that there is a genuine dispute of material fact regarding the first step of this inquiry, and bases its request for summary judgment solely on its contention that McKenzie cannot perform the essential functions of her position. (Doc. 50 at 2-3).
SRP primarily argues that it is entitled to summary judgment because there is no genuine dispute either that operating the three larger forklifts is an essential function of the Material Handler 3 position or that McKenzie cannot operate these larger forklifts. SRP further argues that McKenzie has not met her burden of identifying a reasonable accommodation that would allow her to operate the larger forklifts. (Docs. 43 at 16-17; 50 at 9-11). The Court first considers whether a triable issue of fact exists regarding the essential functions of the job before turning to whether such an issue exists regarding McKenzie's ability to perform those functions.
(Docs. 43 at 10-16; 50 at 3-9). SRP also asserted for the first time in its reply that performing call-outs is itself an essential function of the Material Handler 3 position rather than an aspect of the job which makes operating the larger forklifts an essential function. (Compare Doc. 50 at 7, with Doc. 43 at 3-4, 10-15). “The general rule is that a party cannot raise a new issue for the first time in its reply briefs.” Larson v. Johnson, 2007 WL 2023485, at *4 (D. Ariz. July 12, 2007) (citation omitted). Because plaintiff has not had an opportunity to respond to the contention that performing call-outs is an essential function, the Court will not consider SRP's argument on this issue on summary judgment. See Id. (citing In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th Cir. 1991)); Madluvv v. Brow Trio LLC, 2022 WL 115470, at *3 (D. Ariz. Apr. 19, 2022).
a. Operating the Larger Forklifts as an Essential Function
“The determination of essential functions is a factual finding . . . .” Bates, 511 F.3d at 991 n.7 (citation omitted). The essential function of a job are “the fundamental job duties of the employment position,” but not “the marginal functions of the position.” Id. at 989 (quoting 29 C.F.R. § 1630.2(n)(1)). Evidence of whether a given function is essential or fundamental rather than marginal includes “the employer's judgment as to what functions . . . are essential,” and any “written description” prepared “before advertising or interviewing applicants for the job,” 42 U.S.C. § 12111(8), as well as the “(iii) The amount of time spent on the job performing the function; (iv) [t]he consequences of not requiring the incumbent to perform the function; (v) [t]he terms of a collective bargaining agreement; (vi) [t]he work experience of past incumbents in the job; and/or (vii) [t]he current work experience of incumbents in similar jobs,” 29 C.F.R. § 1630.2(n)(3)(iii)-(vii). Other types of evidence may be relevant, however, and the essential functions determination “must be made on a case by case basis” upon consideration of “all relevant evidence.” 29 C.F.R. pt. 1630, app. § 1630.2(n); see also Dean v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir. 1998) (en banc). In considering a motion for summary judgment, where “there is conflict in the evidence regarding the essential functions of a position,” this Court should conclude “that there is a factual dispute notwithstanding the job descriptions that an employer has prepared.” Rohr v. Salt River Agric. Improvement & Power Dist., 555 F.3d 850, 864 (9th Cir. 2009) (cleaned up).
In contending that there is no genuine dispute that operating the three larger forklifts is an essential function of the Material Handler 3 position, SRP argues that each of the categories of relevant evidence in the foregoing nonexclusive list weighs in its favor. (Doc. 43 at 11-15). To show that SRP judges that operating the larger forklifts is essential, SRP cites deposition testimony of a warehouse foreman, a warehouse manager, and SRP's 30(b)(6) representative, each of whom stated or implied that Material Handler 3 s should be able to operate any piece of warehouse equipment. (Docs. 43-1 at 1-11; 43-2 at 3-4; 43-7 at 5). Under the second category SRP points to its requirements for progression to the Material Handler 3 position, which include the ability to operate each type of forklift. (Docs. 43-4 at 81). Under the third category SRP cites McKenzie's deposition testimony that (before her surgery) she operated the Pettibone once or twice in a seven-year period, the big Cat once every one to two weeks, and the small Cat three to five days per week. (Doc. 43-5 at 8-9). Under the fourth category SRP argues that the consequences of not requiring McKenzie to operate the three larger forklifts would be serious, citing deposition testimony of an SRP foreman who stated that Material Handler 3 s may be required to perform “call-outs,” in which one Material Handler goes to the warehouse alone after hours to provide materials to linemen responding to an unexpected power outage. (See Doc. 431 at 16). During call-outs a Material Handler may need to use one of the larger forklifts. (See id. at 11). Under the sixth category SRP argues that McKenzie used the larger forklifts on a regular basis. Under the seventh category SRP notes that other deposed Material Handler 3 s identified operating all the forklifts as a difference between the Material Handler 3 position and the lower Material Handler positions.
For her part, McKenzie notes that the inclusion of a function in a job description does not conclusively establish it as an essential function. McKenzie cites annual performance reviews for each year from 2016 to 2022, in which she was consistently rated as meeting or exceeding expectations. (Doc. 49-2 at 2-46). McKenzie also points to deposition testimony of two foremen who indicated that the Tempe Warehouse Material Handler team is a good one and that McKenzie contributes positively to the team's performance. (See Docs. 43-1 at 13-15; 49-3 at 9-10). McKenzie also cites her own deposition testimony that before her surgery she used the larger forklifts as much as was required, which for the big Cat was 15-45 minutes every one to two weeks and for the small Cat was three to five days per week, usually for 30 minutes or less. (Doc. 49-1 at 45). She argues that her positive performance reviews and her infrequent use of the larger forklifts for such short periods of time shows that operating the larger forklifts is a marginal function rather than an essential one.
McKenzie has raised a genuine issue as to whether operating each of the large forklifts is an essential function of the Material Handler 3 position. First, the Court finds that there is a genuine dispute as to whether operation of the Pettibone forklift is an essential function of the job. As discussed, McKenzie has only used the Pettibone twice during her time at the Tempe Warehouse, stating that there was “never a need for [her] to use it more than that.” (Id. at 4). Similarly, another deposed Material Handler 3, Tina R., testified that she had not used the Pettibone in four years because she had not been called upon to do so. (Doc. 49-6 at 16). This infrequent use is consistent with McKenzie's testimony that there are 10-12 Material Handlers at the Tempe Warehouse on an average day, that there is only one Pettibone at the Tempe Warehouse, and that a particular Material Handler, Julian, uses it “98 percent of the time.” (Doc. 49-1 at 7). If Julian uses the Pettibone 98% of the time, it follows that the remaining 11 Material Handlers would only be able to use the Pettibone 2% of the time at most, or 0.18% of the time on average. Although SRP has demonstrated the theoretical possibility that a Material Handler 3 performing a call-out could be required to use the Pettibone, a reasonable jury could still find that operating a forklift that the typical Material Handler has so little need or opportunity to use is a marginal function rather than an essential one.
The Court also finds that there is a genuine dispute as to whether operating the big Cat forklift is an essential function of the Material Handler 3 position. McKenzie used the big Cat much more frequently than the Pettibone: about once every one or two weeks for about 30 minutes at a time. But, as with the Pettibone, Tina R. stated that she had not needed to use the big Cat for four years. (Doc. 49-6 at 16). And McKenzie herself stated that the last time she used the big Cat was in 2017, (Doc. 49-1 at 8), which indicates that McKenzie did not use the big Cat for a period of at least ten months while she was a Material Handler 3 and before she underwent surgery in November of 2018. This infrequent use is consistent with the statement of a warehouse manager that (as with the Pettibone) there is only one big Cat forklift at the Tempe Warehouse. (Doc. 49-4 at 23).
During this same period McKenzie received a positive performance review in which her manager stated regarding her quality of work that she set “high personal performance expectations,” was “not afraid to handle a problem,” and “jump[ed] in with both feet.” (Doc. 49-2 at 18). Regarding McKenzie's quantity of work, the manager stated that McKenzie “target[ed] effort for maximum results and then achieve[d] them.” (Id.). Taken together, these facts yield the reasonable inference that McKenzie, who was certified and physically able to use a big Cat at that time, did not use the big Cat for that ten-month period because she did not need to use it to do her job well. Relying on this inference and the fact that another Material Handler 3 did not need to use the big Cat for four years, a reasonable jury could find that operating the big Cat is a marginal function of the job, notwithstanding the possible need to use one during a callout.
Although it presents the closest question, the Court also finds that there is a genuine dispute as to whether operating the small Cat is an essential function of the Material Handler 3 position. Tina R. said that she used the small Cat “rarely” and had used it only once in a more-than-two-month period at the Tempe Warehouse because she had not been asked to use the small Cat more than that. (See Doc. 49-6 at 16). This is consistent with McKenzie's testimony that there are only four small Cats at the Tempe Warehouse but 1012 Material Handlers 3 s, and that it is not necessary to have all of the Material Handler 3 s operating the small Cats at the same time. (Doc. 43-5 at 11).
Additionally, although before her surgery McKenzie used the small Cat three to five days per week (usually for about 30 minutes at a time), McKenzie used the small Cat only “once in a while” after her surgery and before she was demoted. (Doc. 49-1 at 5, 8). During the latter period McKenzie received a positive performance review in which her manager described her as having “a strong commitment to quality.” (See Doc. 49-2 at 23-27). In the same review, under the job competency “Applying Expertise and Technology” (which includes using “technology to achieve work objectives,” as well as demonstrating “appropriate physical coordination and endurance, manual skill, spatial awareness[,] and dexterity”), McKenzie received a rating of “skilled,” indicating that she performed as expected in this area. (Id. at 26-27, 37). From the facts that Tina R. needed to use the small Cat only once in a two-month period and that McKenzie received a rating from which it can be inferred that her use of the small Cat “once in a while” was satisfactory, a reasonable jury could conclude that operating the small Cat forklifts is not an essential function of the job.
While doing a task infrequently, standing alone, may be insufficient to raise an issue of material fact as to the task's status as an essential job function, in this case it appears from the record that many people with the same job title are actually doing very different jobs. Cf. Miller v. Ill. Dep't of Transp., 643 F.3d 190, 198 (7th Cir. 2011) (declining to find that “every task required” of a work crew “as a whole was an essential task of each . . . crew member” where “members took on tasks according to their capacities and abilities” and “there was no requirement that the . . . members rotate from task to task in an organized, routine fashion”). As discussed, Julian uses the Pettibone 98% of the time it is in use, yet all the Material Handler 3 s at three other warehouses never use one, and indeed are not expected to learn how to use one. (See Doc. 43-4 at 81). Conversely, Material Handler 3 s at the East and West Valley warehouses must be trained on the “Yard Crane” while Material Handler 3s at the Tempe Warehouse need not be. (See id.). Nonetheless all those people and Julian have the same job title. Similarly, the Material Handler 3 at Facilities is not required to use forklifts at that location. This variation in the requirements of individual positions within the Material Handler 3 job title, along with the other relevant evidence McKenzie presented, creates a genuine issue of material fact as to whether operating each of the larger forklifts is an essential function of the Material Handler 3 position.
b. Ability to Perform Essential Functions
Even if operating any of the large forklifts were an essential function, however, a genuine dispute exists with respect to whether McKenzie would be able to operate them for the durations and with the frequency required of a Material Handler 3. Whether an employee can perform the essential functions of a position with or without reasonable accommodation is a factual question. See Rohr, 555 F.3d at 864 (citing Cripe v. City of San Jose, 261 F.3d 877, 888-89 (9th Cir. 2001); Turner v. Hershey Chocolate U.S., 440 F.3d 604, 613 (3d Cir. 2006)). In making this determination a court must first consider whether a plaintiff “can perform the job's essential functions without reasonable accommodation,” considering whether she can do so with reasonable accommodation only if the first question is answered in the negative. Dark v. Curry County, 451 F.3d 1078, 1087 (9th Cir. 2006) (citing Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1231 (9th Cir. 2003)).
SRP contends that McKenzie has failed to raise a genuine issue regarding her ability to operate the larger forklifts. In so arguing SRP primarily relies on its medical consultant Dr. Hurt's interpretation of McKenzie's medical records as indicating a permanent restriction on all forklift operation. (See Doc. 43-4 at 41). SRP argues that no rational jury could credit McKenzie's “self-serving” testimony that she is able to operate the larger forklifts over Dr. Hurt's opinion because the former is based on McKenzie's experience operating the large forklifts years ago and the latter is a statement of a licensed physician. (Docs. 43 at 15-16; 50 at 8-9). In response, McKenzie cites her own deposition testimony. Specifically, she attested she can use each of the large forklifts for 30 minutes before taking a break, and that she uses the smaller forklifts daily without any restrictions. (See Doc. 491 at 6-7). She also attested that (before her surgery) on average she operated the big Cat for between 15 and 45 minutes, and the little Cat for between 15 minutes and two hours with 85% of jobs taking 30 minutes or less. (Id. at 5). In support of this testimony McKenzie offers the final note from her surgeon, arguing that the omission of forklift operation restrictions from that note signifies removal of those restrictions. (Doc. 49 at 10).
To the extent that operating the larger forklifts is an essential function of her desired position, the Court finds that McKenzie has raised a genuine issue regarding her ability to operate them. A rational jury could interpret McKenzie's surgeon's final note as lifting all restrictions related to forklift operation and could credit McKenzie's testimony that she is able to operate the larger forklifts. At the least, whether the final note lifted McKenzie's forklift operation restrictions is open to interpretation. An email from one of SRP's medical consultants, Dr. Woehl, illustrates this point. (See Doc. 43-4 at 37). After McKenzie's surgeon issued the final note, Dr. Woehl emailed McKenzie, remarking upon the note's opacity:
Now I see a new doctor's note with an additional new restriction of “no lifting more than 20lbs” and the forklift operation limitation of 15 ft is now gone? Are these meant to be yet new restrictions for you? . . . [I]f your restriction has changed again from the previous note, I will need to get clarification from your Surgeon about these changes. And if your restrictions have increased now with this new note, I will recommend you not return to work until I can have a talk with your surgeon and get some clarification regarding your physical abilities. Please clarify.(Id.) (emphasis in original). Given this ambiguity, a rational jury could conclude that the restrictions listed in the final note were intended to represent the universe of McKenzie's restrictions at that time, and that therefore the omission of a forklift restriction was intended as a repeal of that restriction. This conclusion would be particularly reasonable if McKenzie credibly testifies, consistent with her statement in her EEOC charge of discrimination, that she met with her surgeon on the day he issued the final note specifically to ask him to lift the forklift operation restriction, and that the surgeon acquiesced. (See Doc. 43-6 at 3).
A rational jury could also believe McKenzie's testimony that she can operate the larger forklifts for thirty minutes. SRP urges this Court to discredit McKenzie's testimony because it is based on her experience operating the Pettibone in 2013 and the small and big Cats in 2019. But this is just another way of saying McKenzie's testimony is based on her personal knowledge. McKenzie has operated the larger forklifts in the past and continues to operate the smaller forklifts. From this it can reasonably be inferred that she understands the physical requirements of operating each forklift as well as the differences between those sets of requirements. She is also intimately familiar with the physical limitations of her own body. Considering these facts and inferences together, a rational jury could well find credible McKenzie's opinion of her ability to operate the larger forklifts. Any diminution in credibility due to the remoteness of her last experiences operating the larger forklifts is for the jury to assess.
A rational jury that credits McKenzie's testimony could also conclude that McKenzie can operate the larger forklifts for long enough to perform the essential functions of the Material Handler 3 position. Tina R. stated that McKenzie's current assignment in the receiving area is “material handler 3 work,” that there is “a lot of work” in that position, and that McKenzie is “always doing her job” rather than loafing around. (Doc. 49-6 at 8). An SRP warehouse foreman similarly stated that because McKenzie does “almost all of [the] receiving,” she is quite busy and does not have much free time to “help in other areas.” (Doc. 49-3 at 9). Consistent with these statements, McKenzie's manager wrote in her 2020 performance review that she “handle[s] a heavy volume of work” in the receiving area. (Doc. 49-2 at 32). Considering that SRP appears to have a practice of assigning Material Handlers to distinct areas with varying levels of larger forklift usage, that McKenzie does not have much time to spare from working in her area, and that most of the tasks McKenzie performed on the larger forklifts prior to her surgery took about 30 minutes, a rational jury could find that 30-minute stints with short breaks is enough to enable her to perform the essential functions of the Material Handler 3 position without accommodation.
SRP, in support of its argument that McKenzie's testimony is not sufficient to create a genuine issue of fact, cites this Court's decision in Ernst v. Wheeler Construction, Inc. In Ernst, however, this Court rested its conclusion that the plaintiff's testimony alone could not “create an issue of fact . . . in contradiction of a doctor's contemporaneous diagnosis,” on its finding that “no medical evidence in the record” supported that plaintiff's statements. 2009 WL 1513106, at *4-5. Here, in contrast to the affidavit in Ernst, McKenzie's deposition testimony is supported, as discussed, by a surgeon's note which a reasonable jury could interpret as lifting her forklift operation restrictions. Moreover, unlike the affidavit in Ernst, the testimony here is not offered in contradiction to a contemporaneous diagnosis: Dr. Hurt never met or examined McKenzie, but instead based his finding on two exams performed by McKenzie's surgeon six and nine weeks before the note that omitted forklift restrictions. (Compare Doc. 43-4 at 41, with Doc. 49-5 at 2, and Doc. 49-7 at 3). SRP's reliance on Ernst is therefore misplaced.
2009 WL 1513106 (D. Ariz. Mar. 17, 2009)
SRP also argues that Plaintiff's testimony regarding her abilities is both selfcontradictory and inconsistent with the view that the surgeon's final note removed all forklift operation restrictions. (Docs. 43-1 at 15; 50 at 9). First, a rational jury could find McKenzie's testimony internally consistent. The relevant portions of the deposition transcript that Defendant argues conflict with McKenzie's statement that she can operate the larger forklifts read as follows:
Q. And do you currently have any medical restrictions in place?
A. My restrictions are I am not allowed to operate our small Cat and big Cat forklift, as well as our Pettibone.
Q. And how long have those particular restrictions been in place?
A. Since September 2019.
Q. And who entered those-or who directed those restrictions?
A. My supervisor, Michelle Thieken, and Health Services I believe are the two. ....
Q. Were any of those issued by one of your physicians?
A. Yes.
Q. Which ones?
A. No use of the big Cats, to help you. . . . The big Cats and the Pettibone at that time, anda lifting restriction of up to 50 pounds. ....
Q. And when is the last time that you saw one of your personal physicians about your back or cervical spine?
A. I could look in my calendar. It was just about a month and a half or so ago I saw [my surgeon].
Q. Okay. An estimate is fine. And did he at that time lift these restrictions?
A. At that time, no.(Doc. 43-5 at 3). Drawing all reasonable inferences in McKenzie's favor, this exchange can be interpreted to mean that her surgeon initially issued the restrictions, which were then implemented and kept in place as work restrictions by SRP Health Services even after they were lifted by her surgeon in his final note in October of 2019. Reading the transcript in this light, McKenzie's response that her surgeon did not lift the restriction when she saw him in the spring of 2022 would make sense: he did not lift the restrictions “[a]t that time” because he had lifted them more than two years earlier. Thus, McKenzie's testimony is not so flatly self-contradictory that no reasonable jury could credit it.
Second, even if (as SRP argues) McKenzie's testimony that she can only operate the forklifts for 30 minutes is inconsistent with her argument that the surgeon's final note removed all restrictions, such inconsistency would not necessarily lead to the conclusion that McKenzie cannot operate the forklifts at all. A rational jury could for example infer that the surgeon removed all restrictions despite McKenzie's physical limitations because operation of the large forklifts for more than 30 minutes was not a job requirement of the Material Handler 3 position. Moreover, SRP's preferred interpretation of the note (as leaving previous forklift restrictions in place) is also inconsistent with other evidence in the record-most notably McKenzie's undisputed continued operation of the smaller forklifts despite Dr. Hurt's conclusion that McKenzie's “current restriction” of “no forklift operation” was “permanent.” (Compare Doc. 49-1 at 6, with Doc. 43-4 at 41). Rather than serving as reasons to discredit McKenzie's testimony or to find that the evidence in the record weighs against her claim-which this Court cannot do at summary judgment-these apparent contradictions serve only to show the existence of a genuine dispute of fact as to McKenzie's physical abilities.
The Court therefore finds that a genuine dispute exists as to whether McKenzie can perform the essential functions of her desired job even without any accommodation, and it consequently has no need to decide the reasonableness of McKenzie's proposed accommodation of taking short breaks every thirty minutes while operating the larger forklifts. Moreover, attempting to decide whether any accommodation would permit McKenzie to perform essential functions that have not been established using physical abilities that are in dispute would be a doubly speculative inquiry in which the Court declines to engage. Because McKenzie has established a genuine dispute as to whether she can perform the essential functions of her desired position, and because SRP does not seek summary judgment as to other disputed aspects of McKenzie's prima facie case, there is not here the sort of complete failure of proof as to an essential element of McKenzie's claim that would entitle SRP to summary judgment.
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant SRP's Motion for Summary Judgment (Doc. 43) is denied.