Hogue v. MQS Inspection, Inc., Civ.A. No. 93-B-2099.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Citation875 F. Supp. 714
Docket NumberCiv.A. No. 93-B-2099.
PartiesRalph HOGUE, Plaintiff, v. MQS INSPECTION, INC., a Delaware corporation, Defendant.
Decision Date17 January 1995

875 F. Supp. 714

Ralph HOGUE, Plaintiff,
MQS INSPECTION, INC., a Delaware corporation, Defendant.

Civ.A. No. 93-B-2099.

United States District Court, District of Colorado.

January 17, 1995.

875 F. Supp. 715
875 F. Supp. 716
875 F. Supp. 717
Renee C. Ozer, Ozer, Ruppert & Ozer, P.C., Colorado Springs, CO, for plaintiff

P. Kathleen Lower, William F. Schoeberlein, Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, CO, for defendant.


BABCOCK, District Judge.

Defendant MQS Inspection, Inc., (MQS) moves for summary judgment pursuant to Fed.R.Civ.P. 56 on plaintiff Ralph Hogue's (Hogue) claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA), for constructive discharge, and for damages. The motion is adequately briefed and oral argument will not materially assist in its resolution. I will grant defendant's motion on plaintiff's constructive discharge and punitive damages claims and deny the motion on plaintiff's remaining claims.

875 F. Supp. 718


The following facts are undisputed unless noted otherwise. Defendant MQS is a national company which conducts non-destructive testing of weldments, valves, storage tanks, and vessels. For example, MQS may inspect steel girders before they are incorporated into a building, pipes as they are laid in the ground, and storage tanks (McMullin Aff. ¶ 2). Non-destructive testing involves five primary inspection methods: radiographic (x-ray), ultrasonic, magnetic particle, dye penetrant, and visual. Inspectors are certified in each method according to national testing standards.

Hogue was hired by the Denver office of MQS in October, 1987 as an inspector on a part-time contract basis for which he had no guaranteed hours or fringe benefits. He injured his left knee on the job in November, 1989. Hogue's treating physician found Hogue had a ten percent loss of function of the left leg from this injury. He further stated that Hogue was restricted permanently from squat-bending or kneeling on that knee with permanent maximum lifting limits of 25-30 pounds (frequently) and 50 pounds (occasionally) (Pltf.Exh. 3). Despite these restrictions, Hogue resumed work as an inspector with no apparent problems. In September, 1990, Hogue passed his Level III inspector tests and became a permanent, full-time MQS employee. He was promoted to supervisor of the Denver office on December 24, 1990.

Mr. Hogue was again injured at work on November 4, 1991, when he fell from a ladder and broke his right leg and right ankle. Hogue had surgery for his injuries a few days later. MQS' workers' compensation insurance carrier retained American International Health & Rehabilitation Services, Inc. (AIHRS), a rehabilitation consulting firm, to monitor Hogue's recovery (McMullin Depo. pp. 103-04). Hogue convalesced until April 7, 1992, when he returned to work on light duty. However, Hogue was unable to work more than a few days and left work again in late April. A second surgery fused his right ankle on May 12, 1992. After this surgery, Hogue's treating physician informed AIHRS that Hogue could return to work part time on September 1, 1992, and full time on December 1, 1992 (Pltf.Exh. 9).

In the meantime, after Hogue's November, 1991 injury, Dennis McMullin, (McMullin) manager of the Denver MQS office, had been performing his own and Hogue's duties. To reduce his workload, McMullin appointed Craig Hager (Hager), a MQS Level II inspector, as acting supervisor on May 26, 1992. According to MQS, in late June or early July McMullin offered Hager the Denver supervisor position permanently if he took and passed his Level III certification tests in August which he did (McMullin Depo. pp. 135, 169) (Hager Depo. pp. 58, 64-65).

In August, 1992, Hogue's physician projected his return to part-time light duty work on September 1, 1992. He also prescribed a "functional capacity evaluation" (FCE) which would more fully analyze Hogue's work capabilities (Def.Exh. 5). An AIHRS report dated September 3, 1992, states that Hogue's return to work was postponed until the FCE and a job analysis could be completed (Def. Exh. 16 p. 2). The FCE concluded Hogue could not squat, kneel or balance (Def.Exh. 17 p. 300116). MQS contends that with the restrictions noted in the FCE, Hogue could not perform field inspections and, thus, could not return to the supervisor position (Def. Brief p. 6). MQS then developed a training instructor position for Hogue. However, the new position was part-time, paid less, and did not offer benefits. AIHRS prepared a job description for the new position which Hogue reviewed on December 7, 1992. The next day, Hogue filed a complaint with the EEOC charging violation of the ADA based on MQS' failure to provide reasonable accommodation and return him to the supervisor position (Def.Exh. 22). When McMullin learned that Hogue had filed an EEOC complaint, he informed Hogue that he could not return to work (McMullin Depo. pp. 190-91). Hogue states that McMullin told him the company "couldn't have this shit" and he would either be laid off or fired because of his EEOC complaint (Hogue Depo. p. 134). MQS concedes this was a mistake by McMullin and states that at MQS' direction, McMullin telephoned Hogue telling him he could return to

875 F. Supp. 719
work (Def.Brief pp. 7-8). McMullin confirmed the phone conversation with a letter (McMullin Depo. pp. 190, 192)

Hogue returned to work at MQS in the training instructor position on January 18, 1993 (Complaint ¶ 35). Shortly after he returned to work, Hogue was assigned a field inspection job after Hager reviewed the physical requirements of the job (Hager Depo. p. 101). The job extended over January and February, 1993 for one to two days per week. It entailed walking in a cow pasture where explosions had been set off and walking down a rough, eight-foot deep pit without assistance (Hogue Depo. pp. 81-83). McMullin states Hogue performed the job adequately (McMullin Depo. p. 195).

Two months later, on March 23, 1993, Hogue took medical leave for an operation on his left knee which he had injured in 1989. He returned to work at the end of May, 1993 (Hogue Depo. pp. 126-27). In June 1993, Hogue was contacted by Mike Fraser, a former MQS employee who had recently gone to work for North American Inspection, an MQS competitor. Fraser asked Hogue if he was interested in being a branch manager for North American (Hogue Depo. p. 55). Hogue was then contacted by Wes Shakley, North American's general manager (Hogue Depo. p. 55). The two men discussed the position at North American and Hogue inquired about benefits (Hogue Depo. p. 56). A few days later, North American's vice president, Carl Dichler met with Hogue and offered him a job. Hogue considered the job offer for a week and a half before accepting the offer. He resigned from MQS on a Friday and started work at North American the following Monday (Hogue Depo. pp. 58-59).


Fed.R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. U.S., 622 F.2d 516, 519 (10th Cir.1980); Fed. R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence present in the motion and response. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Anderson Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. at 2512; Mares, 971 F.2d at 494.


A. Americans with Disabilities Act

MQS requests summary judgment on Hogue's claim that MQS violated the Americans

875 F. Supp. 720
with Disabilities Act, (ADA) 42 U.S.C. § 12111 et seq., by refusing to accommodate his disability. MQS contends Hogue is not a "qualified individual with a disability" and, thus, is not entitled to ADA protection. Further, MQS argues that even if Hogue were a "qualified individual with a disability," his suggested accommodations were unreasonable. In any event, MQS asserts the supervisor position was filled when Hogue returned to work. I deny summary judgment on these grounds

The ADA prohibits...

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