Skinner v. Newmont Mining Corporation

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 KIRK SKINNER, Case No. 3:19-cv-00453-KJD-WGC 8 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 v. 10 NEWMONT USA LIMITED, a Delaware Corporation, 11 Defendant. 12 Before the Court is Defendant’s Motion for Summary Judgment (ECF #37). Plaintiff 13 responded in opposition (ECF #40) and Defendant replied (ECF #43). 14 I. Factual and Procedural Background 15 This Americans with Disabilities Act (“ADA”) action arises from the termination of 16 Plaintiff Kirk Skinner’s (“Skinner”) employment with Defendant Newmont USA Limited 17 (“Newmont”). Newmont “is the world’s leading gold company and a producer of copper, silver, 18 19 zinc, and lead.” NEWMONT’S VISION, https://www.newmont.com/about-us/default.aspx (last visited March 11, 2021). Prior to working at Newmont, Skinner worked in a mine in Montana. 20 (ECF #37, at 3). In January 2006, Skinner suffered an injury at the Montana mine and was 21 diagnosed with degenerative disc disease. Id. Skinner was concerned that he might need to 22 consider a new career but based on his lack of education or qualification for other types of work, 23 he remained a mechanic. (ECF #37-1, at 15–16). Skinner began working at Newmont as an 24 underground mechanic in February 2007. (ECF #37, at 3). When Skinner filled out his Newmont 25 employment paperwork, he disclosed that he had a 10% disability rating but had no work 26 limitations and did not require any accommodations. Id. Skinner worked at Newmont for nine 27 years, apparently without incident, until October 2016 when he made a complaint about a 28 1 comment made to him by a co-worker. Id. The comment was prompted by Skinner standing 2 around, not helping his co-workers move equipment. Id. Dennis Zimmerman (“Zimmerman”), 3 one of Newmont’s employment relations representatives, led the investigation into Skinner’s 4 allegations. Id. 5 During the investigation, Skinner sent Zimmerman an email, on October 26, 2017, stating 6 in part that “[s]ince my back surgery some years ago, which has resulted in a permenant [sic] 7 disability, I have been living with chronic pain which causes loss of sleep, difficulty standing for 8 long periods, difficulty sitting for long periods and have noticed that I need to take more breaks 9 recently.” (ECF #37-1, at 65). Skinner also noted that he did not like to take pills “which could 10 cloud [his] judgment” and asked if there were any “programs from Newmont such as pain 11 management or anything that could help.” Id. Zimmerman and Newmont interpreted this email 12 to mean that Skinner was indicating he could not physically perform the duties of his job and 13 was requesting an accommodation. (ECF #37, at 4). Skinner claims that he was not stating that 14 he could not physically perform his job duties, he only wanted to inquire about potential pain 15 management programs Newmont might offer or be permitted to take additional breaks. (ECF 16 #40, at 6). After all, Skinner had been performing his job duties for nearly ten years at that point. 17 Id. 18 After receiving what Zimmerman interpreted as a request for disability accommodation, 19 Zimmerman informed Skinner that he would have to undergo a medical evaluation before he 20 would be allowed to return to work. (ECF #37, at 4). On November 1, 2016, Skinner was 21 evaluated by Dr. Brent Black, M.D. (“Dr. Black”). Id. Dr. Black filled out Skinner’s Medical 22 Return to Work form, stating that Skinner may return with a Level 3 Restriction. Id. With a 23 Level 3 Restriction, Skinner was not medically cleared to lift, pull, or push objects weighing 24 more than 50 pounds and was to take back stretching breaks three times per day for 10-15 25 minutes. Id. at 5. Skinner met with Newmont officials, including Zimmerman, after his 26 appointment with Dr. Black. Id. According to Newmont, this restriction exceeded the essential 27 duties of Skinner’s job. Id. The essential functions of a Newmont mechanic include being able to 28 push, pull, and lift up to 100 pounds for anywhere between 3%-15% of the workday. Id. 1 Additionally, mechanics must be able to stoop, kneel, crouch, crawl, and twist for up to 33% of 2 the workday. Id. 3 During the meeting, Skinner filled out the paperwork required to be placed on paid 4 indemnity leave for 52 weeks. Id. at 6. On the form, Skinner described his injury as degenerative 5 disc disease and signed that he was applying for benefits on account of total disability. Id. On the 6 form Skinner also stated that Dr. Frances Ponce, M.D. (“Dr. Ponce”) indicated that Skinner had 7 become unable to perform the essential functions of his job on October 25, 2016. Id. On 8 November 21, 2016, Zimmerman sent Skinner an email informing him that if he received a 9 restricted duty release, he should contact his supervisor to see if he could be accommodated. Id. 10 Skinner responded and asked Zimmerman to explain to him the Newmont policy regarding 11 restricted and light duty. Id. Zimmerman provided Skinner with Newmont’s forms explaining 12 injury policy and asked Skinner to call him so he could explain. Id. Skinner did not call, but 13 indicated that he had not received a change in restricted duty and had another appointment later 14 in January. Id. 15 On January 27, 2017, Dr. Ponce evaluated Skinner again. Id. at 8. This time, instead of 16 giving Skinner a Level 3 Restriction, Dr. Ponce checked the box that states “Patient is totally 17 unable to perform his/her job duties at this time.” Id. Skinner signed the form, indicating that he 18 understood and agreed with the information provided by Dr. Ponce. Id. On May 24, 2017, 19 Skinner was evaluated by Dr. Ponce again with the same result. Id. Dr. Ponce made the same 20 finding, checking the box indicating that Skinner was totally unable to perform his job duties. Id. 21 Skinner again signed the form. Id. Skinner claims that he did not agree with Dr. Ponce’s May 24 22 finding that he was unable to perform his work duties but signed the form anyway so Newmont 23 would pay him. Id. at 9. Skinner did not tell anyone at Newmont that he did not agree with the 24 doctor’s findings before litigation ensued. Id. Skinner met with the doctor again on August 1, 25 2017 where he received and signed another form stating he was unable to perform his job duties. 26 Id. 27 Skinner’s 52-week indemnity period was expiring and on September 23, 2017, Skinner 28 received a letter from Newmont stating that his indemnity benefits would be exhausted on 1 October 30, 2017. Id. The letter also stated that “[i]f you believe you can return to work and 2 perform the essential functions of your job with or without a reasonable accommodation, please 3 contact us immediately.” Id. (emphasis in original). Skinner responded to the letter indicating 4 that he wished to return to work or extend his benefits through other means, such as the Family 5 Medical Leave Act. Id. The Newmont representative requested an in-person meeting with 6 Skinner to discuss his options, but Skinner refused to meet without a witness present and 7 expressed his desire to continue communicating exclusively through email. Id. at 10. Newmont 8 continued with the emails and explained exactly what information Skinner would have to 9 provide to determine if an accommodation was possible. Id. Prior to Skinner’s October 30, 2017 10 doctor’s appointment, Newmont reached out again stating that the previous evaluations showed 11 that Skinner was totally unable to perform his job duties and again requested information helpful 12 to determine if Skinner could perform his duties with or without a reasonable accommodation. 13 Id. at 10–11. Skinner’s response did not address all of Newmont’s requests, but did indicate that 14 Skinner might be able to perform his duties with reasonable accommodations “that will not 15 create a financial burden on the company, such as: team lift, hoists, cranes, hand dollies, and 16 carts which the company already has on the work site.” Id. at 11. Newmont representatives 17 responded stating that without the specifics of Skinner’s disability they could not suggest 18 accommodations and asked Skinner to take his job description with him to his next appointment 19 so the doctor could make a final determination about whether he could perform the essential 20 duties of his job. Id. Skinner did not take the job description with him and was once again 21 deemed totally unable to perform the duties of his job. Id. 22 The parties disagree over how exactly Skinner’s employment ended. Skinner claims that 23 he was terminated while Newmont argues that Skinner resigned. Newmont employees 24 continually asked Skinner for specific details regarding his ability to perform the essential duties 25 of his job and to cooperate in the interactive process. (ECF #37-1, at 132–38). Skinner expressed 26 that he thought he was participating in the interactive process and that he would be terminated as 27 soon as his medical leave expired. Id. If that were the case, Skinner indicated that he would need 28 to pick up his personal items from the Newmont site. Id. at 136. A Newmont employee emailed 1 Skinner on October 31, 2017, indicating that they had received the previous medical evaluation 2 stating that Skinner was totally unable to perform his job duties and asked if there was any 3 additional information about Skinner’s potential to perform his duties. Id. at 134. The email also 4 shows that Skinner was scheduled for another medical evaluation on January 8, 2018. Id. Skinner 5 responded on the same day, stating “When can I pick up my personal items from the worksite? I 6 am in town for a limited time and do not like my investment to be held hostage since due to 7 previous emails that Newmont terminated my employment yesterday.” Id. at 133. The parties 8 then arranged for Skinner to recover his personal items and final paycheck. Id. at 132–33. Later, 9 on November 29, 2017, Skinner emailed stating that he had not received a termination letter and 10 requested documentation that his employment had ended. Id. at 132. Newmont responded, 11 stating that “[t]he benefits group has mailed final documentation since your termination was due 12 to medical reasons.” Id. 13 Skinner filed his complaint on September 14, 2018. (ECF #1, at 7). He brought claims for 14 disability discrimination and failure to accommodate in violation of the ADA and retaliation in 15 violation of the ADA. Id. at 4–6. The retaliation claim was dismissed in this Court’s order on 16 August 2, 2019. (ECF #23). Newmont, after completing discovery, then brought its motion for 17 summary judgment. (ECF #37). 18 II. Legal Standard 19 Summary judgment may be granted if the pleadings, depositions, answers to 20 interrogatories, and admissions on file, together with affidavits, if any, show that there is no 21 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 22 matter of law. See FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 23 (1986). The moving party bears the initial burden of showing the absence of a genuine issue of 24 material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set 25 forth specific facts demonstrating a genuine factual issue for trial. See Matsushita Elec. Indus. 26 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 27 All justifiable inferences must be viewed in the light most favorable to the nonmoving 28 party. See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the 1 mere allegations or denials of his or her pleadings, but he or she must produce specific facts, by 2 affidavit or other evidentiary materials as provided by Rule 56(e), showing there is a genuine 3 issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “Where evidence 4 is genuinely disputed on a particular issue—such as by conflicting testimony—that ‘issue is 5 inappropriate for resolution on summary judgment.’” Zetwick v. Cnty. of Yolo, 850 F.3d 436, 6 441 (9th Cir. 2017) (quoting Direct Techs., LLC v. Elec. Arts, Inc., 836 F.3d 1059, 1067 (9th 7 Cir. 2016)). 8 III. Analysis 9 To prevail on a failure to accommodate in violation of the ADA claim, a plaintiff must 10 demonstrate that: “(1) he is disabled within the meaning of the ADA; (2) he is a qualified 11 individual able to perform the essential functions of the job with reasonable accommodations; 12 and (3) he suffered an adverse employment action because of his disability.” Allen v. Pac. Bell, 13 348 F.3d 1113, 1114 (9th Cir. 2003). Newmont concedes that Skinner is disabled within the 14 meaning of the ADA but argues that he is not a qualified individual able to perform the essential 15 functions of his job and that he did not suffer an adverse employment action because of his 16 disability. If the facts, viewed in the light most favorable to Skinner, do not show that Skinner 17 was a qualified individual and that he suffered an adverse employment action, then summary 18 judgment will be granted to Newmont. 19 The ADA defines a qualified individual as “an individual with a disability who, with or 20 without reasonable accommodation, can perform the essential functions of the employment 21 position that such individual holds or desires.” 42 U.S.C. § 12111(8). The Equal Employment 22 Opportunity Commission has “promulgated a regulation expanding this definition” that the Ninth 23 Circuit has adopted. Johnson v. Bd. of Trustees of Boundary Cty. Sch. Dist. No. 101, 666 F.3d 24 561, 564–65 (9th Cir. 2011). The regulation, 29 C.F.R. § 1630.2(m), gives a two-part analysis. 25 Courts must “first determine whether the individual satisfies the prerequisites of the job; more 26 specifically, whether ‘the individual satisfies the requisite skill, experience, education and other 27 job-related requirements of the employment position such individual holds or desires.’” Anthony 28 v. Trax Int’l Corp., 955 F.3d 1123, 1128 (9th Cir. 2020) (quoting 29 C.F.R. § 1630.2(m)). 1 Second, courts “determine whether, ‘with or without reasonable accommodation,’ the individual 2 is able to ‘perform the essential functions of such position.’” Id. (quoting 29 C.F.R. 3 § 1630.2(m)). 4 Skinner satisfies the first prong. He satisfies the prerequisites of the job and is qualified to 5 be a mechanic, as evidenced by his nine-year tenure in the position. Whether Skinner can 6 perform the essential functions of the position with or without accommodation is the question. 7 Newmont states that the essential functions include being able to push, pull, and lift up to 100 8 pounds for anywhere between 3%-15% of the workday and stoop, kneel, crouch, crawl, and twist 9 for up to 33% of the workday. Newmont argues that originally Skinner could lift up to 50 10 pounds, but his degenerative condition got worse, and his doctor reported that he was totally 11 disabled and not able to perform any of his job duties. Thus, because he could not perform any 12 duty, he could not perform the essential duties. Newmont also argues that Skinner agreed with 13 the total disability diagnoses by signing the medical evaluation forms. Skinner argues that he 14 never agreed with his doctor that he was totally disabled or that his condition became worse and 15 made him totally disabled. He claims he only signed the medical evaluation forms so Newmont 16 would pay him but that he is not totally disabled. 17 The Court finds that Skinner is not a qualified individual because his medical evaluations 18 indicate that he was totally disabled and unable to perform any job functions. This case is similar 19 to Kennedy v. Applause, Inc. 90 F.3d 1477 (9th Cir. 1996). In Kennedy, the district court granted 20 summary judgment for the defendant after finding that the plaintiff was totally disabled and 21 therefore not a qualified individual under the ADA. Id. at 1480. The plaintiff’s testimony that she 22 was not totally disabled was outweighed by her doctor’s testimony that she was and her 23 indication on her state disability claim forms that she was totally disabled. Id. The plaintiff’s 24 only evidence was her uncorroborated and self-serving testimony. Id. at 1481. The Ninth Circuit 25 found that the plaintiff’s testimony did not present a sufficient disagreement to require 26 submission to the jury and that there was no genuine dispute that the plaintiff was totally 27 disabled from performing her job. Id. Skinner has done the same here. The only evidence that he 28 is not totally disabled is his own testimony. That evidence is made less reliable when looking at 1 Skinner’s disability benefits applications which state that he became unable to perform the 2 essential functions of his job on October 25, 2016. These applications also weigh against 3 Skinner’s argument that he is able to perform the functions of his job because he had performed 4 them for nearly ten years. Skinner’s medical records show that originally Skinner could lift up to 5 50 pounds, but his condition became worse, and he was no longer able to perform the functions 6 of his job or even lift up to 50 pounds. Additionally, Skinner’s doctor filled out his notice of 7 disability report for the Arizona Department of Economic Security and stated that Skinner would 8 be able to work as of “never.” The medical evaluations that Newmont relied on indicate that 9 Skinner was totally disabled, unable to return to work, and not a qualified individual under the 10 ADA. 11 These facts are not genuinely in dispute and Skinner’s response to Newmont’s argument 12 that Skinner is not a qualified individual focuses on whether the essential job functions are truly 13 essential, not whether Skinner was totally disabled. Summary judgment for a defendant is 14 appropriate when the plaintiff ‘fails to make a showing sufficient to establish the existence of an 15 element essential to [his] case, and on which [he] will bear the burden of proof at trial.’” 16 Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 805–06 (1999) (quoting Celotex Corp. v. 17 Catrett, 477 U.S. 317, 322 (1986)). “An ADA plaintiff bears the burden of proving” that []he is a 18 qualified individual. Id. Skinner has not met that burden. Additionally, an ADA plaintiff “cannot 19 simply ignore the apparent contradiction that arises out of the earlier . . . total disability claim. 20 Rather, []he must proffer a sufficient explanation.” Id. Skinner has not provided any explanation 21 as to why his disability benefits applications forms indicate that he is totally disabled but his 22 testimony in this case is the opposite. He simply repeats his claim that he only signed his check 23 to receive his paycheck. That does not explain the contradiction between his disability claim 24 forms and his testimony. Therefore, because the admissible evidence shows that Skinner’s 25 degenerative condition got worse, he became totally unable to perform the functions of his job, 26 and that he would never be able to return to work, Skinner is not a qualified individual under the 27 ADA. Because Skinner is not a qualified individual, his failure to accommodate claim fails and 28 summary judgment for Newmont is appropriate. 1 Skinner’s discrimination claim in violation of the ADA fails for the same reason. The 2| ADA states that no “covered entity shall discriminate against a qualified individual with a 3 | disability.” 42 U.S.C. § 12112(a) (emphasis added). As such, the Ninth Circuit applies the same prima facie elements, requiring a plaintiff to prove that “(1) he is disabled under the Act, (2) a 5 | ‘qualified individual with a disability,’ and (3) discriminated against ‘because of? the disability.” Bates v. United Parcel Service, Inc., 511 F.3d 974, 988 (9th Cir. 2007) (quoting Nunes v. Wal- Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999)). Because Skinner cannot show that he is 8 | qualified individual, his discrimination claim fails. 9 The evidence, seen in the light most favorable to Skinner, shows that Skinner is not a 10 | qualified individual under the ADA. Therefore, summary judgment for Newmont is appropriate. 1] TV. Conclusion 12 Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion for Summary 13 | Judgment (#37) is GRANTED. 14| ITIS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendant and 15 | against Plaintiff. Dated this 12th day of March, 2021. " Kent J. Dawson 19 United States District Judge 20 21 22 23 24 25 26 27 28 -9-