White v. Town of Hurley

• Decision Date: 28 March 2019
• Docket Number: No. CIV 17-0983 JB\KRS,CIV 17-0983 JB\KRS
• Parties: DON WHITE, Plaintiff, v. TOWN OF HURLEY, Defendant.
• Court: U.S. District Court — District of New Mexico

DON WHITE, Plaintiff, v. TOWN OF HURLEY, Defendant.

No. CIV 17-0983 JB\KRS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 28, 2019

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) the Defendant Town of Hurley's Omnibus Motion for Summary Judgment and Memorandum in Support Thereof, filed August 31, 2018 (Doc. 33)("MSJ"); and (ii) the Defendant's Daubert¹ Motion to Exclude the Testimony and Opinions of Brian H. Kleiner and Memorandum in Support Thereof, filed August 31, 2018 (Doc. 34)("Expert Motion"). The Court held hearings on December 21, 2018, and January 15, 2019. See Clerk's Minute Sheet at 1, filed December 21, 2018 (Doc. 51); Clerk's Minutes at 1, filed January 15, 2019 (Doc. 53). The primary issues are: (i) whether the Court should grant summary judgment for Defendant Town of Hurley on Plaintiff Don White's Count I failure-to-accommodate claim under the Americans with Disabilities Act, 42 U.S.C §§ 1201-03, 12111-17, 12131-34, 12141-50, 12161-65, 12181-89, 12201-05, 12205a, 12206-13; 47 U.S.C. § 225 ("ADA"), because White was not an otherwise qualified employee, as he could not perform the job's functions, and because White did not request a reasonable accommodation when he requestedindefinite leave; (ii) whether the Court should grant summary judgment for the Town of Hurley on White's Count I ADA claim, because the Town of Hurley had no obligation to engage in an interactive process with White when White did not request a reasonable accommodation; (iii) whether the Court should grant summary judgment for the Town of Hurley on White's Count II ADA-retaliation claim, because White's request for indefinite leave was not a protected activity, his request did not cause the Town of Hurley to terminate his employment, and the Town of Hurley had legitimate, non-discriminatory reasons for rejecting his request; (iv) whether the Court should grant summary judgment for the Town of Hurley on White's Count III Age Discrimination in Employment Act, 29 U.S.C. §§ 621-33, 633a, 634 ("ADEA"), because White did not first raise a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and because the Town of Hurley employs less than twenty people; (v) whether the Court should grant summary judgment for the Town of Hurley on White's Count IV ADA medical-inquiry claim, because the Town of Hurley's interviewer could ask White about his injury and because the Town of Hurley rejected White's application because of its concerns about White's temperament; (vi) whether the Court should exclude the opinions, report, and testimony of Brian H. Kleiner, White's human resources expert, or grant a Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)("Daubert") hearing, because Kleiner's methodology, which involves summarizing EEOC guidance and deposition excerpts that are favorable to White, is not reliable and his conclusions are legal conclusions, which result from applying the EEOC guidance to the facts; and (vii) whether the Report of Brian H. Kleiner, PH.D., filed August 31, 2018 (Doc. 34-1)("Kleiner Report"), is inadmissible hearsay. The Court grants the MSJ, and it grants in part the Expert Motion and denies it in part. The Court concludes that it will grant summary judgment asto: (i) Count I's failure-to-accommodate claim, because White has produced insufficient evidence to establish a genuine dispute of material fact whether he was a qualified individual who could perform the essential functions of a Hurley Police Department ("HPD") officer and whether he requested a reasonable accommodation, and because the Town of Hurley had no obligation to engage in an interactive process after White did not request a reasonable accommodation; (ii) Count II's retaliation claim, because White's request for leave was not a protected activity, and because White does not show a genuine dispute of material fact whether a causal connection exists between his request for leave and his employment's termination, or whether the Town of Hurley terminated White's employment for a legitimate, non-discriminatory reason -- that it needed HPD officers who could serve on duty; (iii) Count III's ADEA claims, which White states in his MSJ Response that he will not pursue; and (iv) Count IV's medical-inquiry claim, because the Town of Hurley could lawfully ask White about his injury and recovery, and because White does not illustrate a genuine dispute of material fact whether the Town of Hurley rejected White's employment application for legitimate, non-pretextual reasons -- concerns that he could not interact courteously with Town of Hurley citizens. Further, the Court will not permit Kleiner to testify before a jury to the opinions in the Kleiner Report, because the opinions are not helpful to a trier of fact and because Kleiner lacks the qualifications to offer an expert opinion whether Town of Hurley would suffer an undue hardship if it accommodated White. For these same reasons, in deciding the MSJ, the Court will not treat Kleiner's opinions as expert testimony equivalent to factual evidence; the Court instead views Kleiner's opinions as additional legal argument. The parties may not rely on the Kleiner Report at trial, because the Court deems it inadmissible hearsay.

FACTUAL BACKGROUND

The Town of Hurley is a municipality in the State of New Mexico, with a Mayor-Council government and a police department with "a chief, a lieutenant at times, a sergeant, and a varying number of patrolman [sic] either one or two." Plaintiff's Response to Defendant Town of Hurley's Omnibus Motion for Summary Judgment and Memorandum in Support Thereof ¶¶ 1-2, 4, 5 at 1-2, filed October 5, 2018 (Doc. 37)("MSJ Response")(asserting these facts)(citing Affidavit of Don White Jr. ¶¶ 1- 2, at 1 (taken October 5, 2018), filed October 5, 2018 (Doc. 37)("White Aff.")). See Defendant Town of Hurley's Reply to Plaintiff's Response to Omnibus Motion for Summary Judgment at 2, filed October 26, 2018 (Doc. 41)("MSJ Reply")(admitting these facts).² Since August 3, 2014, the Town of Hurley "has not employed more than nineteen full- or part-time employees at any given time." MSJ ¶ 34, at 7 (asserting this fact)(citing Affidavit of Lori Ortiz¶¶ 4-5, at 1 (taken August 30, 2018), filed August 31, 2018 (Doc. 33-14)("Ortiz Aff.")).³ The Town of Hurley has employed seasonal employees, but they "did not work for the Town each working day in each of twenty or more calendar weeks for any year since August 3, 2014." MSJ ¶ 34, at 7 (asserting this fact)(citing Ortiz Aff. ¶¶ 4-5, at 1).⁴ The Town of Hurley "has never employed fifty or more employees at any given time," even counting its seasonal employees. MSJ ¶ 35, at 7 (asserting his fact)(citing Ortiz Aff. ¶ 6, at 1).⁵

In February, 2010, the Town of Hurley hired White as a "police officer/patrolman." MSJ ¶ 1, at 1 (asserting this fact)(citing Deposition of Don White at 16:2-10 (taken June 4, 2018), filed August 31, 2018 (Doc. 33-1)("White Depo.")). See MSJ Response ¶ 9, at 2 (also asserting this fact).⁶ At the time that the Town of Hurley hired White, Robert Ruiz was the chief of police. See MSJ Response ¶ 6, at 2 (asserting this fact)(citing White Aff. ¶ 3, at 1); MSJ Reply at 2 (admitting this fact). White had seven years of prior experience as a law enforcement officer, so HPD did not have to train White. See MSJ Response ¶¶ 7-8, at 2 (asserting this fact)(citing White Aff. ¶¶ 4-5,at 1); MSJ Reply at 2 (admitting this fact). White "briefly resigned from his employ with the Town of Hurley," MSJ ¶ 2, at 1 (asserting this fact)(citing White Depo. at 16:11-15; id. at 21:9-12). See MSJ Response ¶ 11, at 2 (also asserting this fact)(citing White Aff. ¶ 8, at 1),⁷ because Ruiz "had previously authorized Mr. White to have New Year's Eve and New Years Day 2014 off from duty," but HPD did not schedule White for leave during that time. MSJ Response ¶¶ 10-11, at 2 (asserting these facts)(citing White Aff. ¶¶ 7-8, at 1). See MSJ Reply at 2 (admitting these facts).

White returned to HPD on March 11, 2014, after Peter Ordonez, who hired White, replaced Ruiz as the chief of police. See MSJ ¶ 2, at 1 (asserting that White returned to work at HPD)(citing White Depo. at 16:11-15); MSJ Response ¶¶ 12-13, at 2-3 (asserting that Ordonez replaced Ruiz and hired White)(citing White Aff. ¶¶ 9-10, at 1); MSJ Reply at 2 (admitting the facts from the MSJ Response). In June, 2014, the HPD promoted White to a position as sergeant. See MSJ ¶ 3, at 1 (asserting this fact)(citing White Depo. at 16:17-10; 26:3-10); MSJ Response ¶ 14, at 3 (also asserting this fact)(citing White Aff. ¶ 11, at 2).

Soon thereafter, on July 23, 2014, White suffered an injury in an "off-duty motorcycle accident." MSJ ¶ 4, at 1 (asserting this fact)(citing Letter from Jim Foy to Mayor, Town Council and Chief of Police (dated April 30, 2016), filed September 26, 2017 (Doc. 1-6)("April 30 Letter"); White Depo. at 26:19-23; id. at 27:7-13). See MSJ Response ¶¶ 15-18, at 3-4 (asserting the same fact and the date of the accident)(citing White Aff. ¶¶ 12-15, at 2); MSJ Reply at 2 (admitting the date). White "was travelling on his motorcycle north between Hurley and Bayard near mile markers 124 and 125 on U.S. Highway 180 in a yellow lined no passing zone." MSJ Response¶ 15, at 3 (asserting this fact)(citing White Aff. ¶ 12, at 2). See MSJ Reply at 2 (admitting this fact). Orlando Chavez "was travelling south on the same said road in a 2012 Dodge pick-up truck," and,

[n]ear mile marker 124 and 125, Mr. Chavez crossed over the single yellow line signifying a no passing zone for Mr. Chavez in an attempt to recklessly pass another vehicle when Mr. White encountered Mr. Chavez in the Dodge pick-up truck, in Mr. White's lane heading directly toward Mr. White.

MSJ Response ¶ 16, at 3 (asserting this fact)(citing White Aff. ¶ 13, at 2). See MSJ Reply at 2 (admitting this fact). "According to witnesses at the scene, he [Chavez] was...