King v. Darigold, Inc.

• Court: District Court, D. Idaho
• Decided: August 11, 2021
• Docket: 1:20-cv-00224
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- 11 12 ZACKERY KING, an individual, No. 1:20-cv-00224-WBS 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: CROSS MOTIONS FOR SUMMARY 15 DARIGOLD INC., JUDGMENT & MOTIONS TO SEAL 16 Defendant. 17 18 ----oo0oo---- 19 Plaintiff Zackery King (“plaintiff”) brings this action 20 against defendant Darigold, Inc. (“Darigold”), seeking damages 21 under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 22 12101, et seq., and the Idaho Human Rights Act (“IHRA”), Idaho 23 Code § 67-5901, et seq., after his employment was terminated and 24 after he was allegedly forced to undergo medical examinations 25 which were not job-related or consistent with business necessity. 26 Presently before the court are Darigold’s Motion for 27 Summary Judgment (Defs.’ Mot. for Summ. J. (Docket No. 34)), 28 plaintiff’s Motion for Partial Summary Judgment (Pl.’s Mot. for 1 Summ. J. (Docket No. 37)), Darigold’s Motion to Seal Exhibits 2- 2 5, 8, 10, 12–15, 17–18, 21-22 and 28 to the Declaration of Karin 3 Jones in Support of Defendant’s Motion for Summary Judgment 4 (Def’s. Mot. to Seal (Docket No. 35)), and plaintiff’s Motion to 5 Seal Exhibits D, E, and K to the Declaration of Jeremiah Hudson 6 in Support of Plaintiff’s Motion for Summary Judgment and Exhibit 7 B to the Supplemental Declaration of Jeremiah Hudson in Support 8 of Plaintiff’s Response to Defendant’s Motion for Summary 9 Judgment. (See Pl.’s Mot. to Seal (Docket No. 38).)1 10 I. Factual and Procedural Background 11 Plaintiff began his employment at Darigold around April 12 16, 2010. (Pl.’s Statement of Undisputed Facts (“Pl.’s SUF”) at 13 1 (Docket No. 37-2).) Approximately six months after he began 14 working for Darigold, plaintiff became a Butter Churn Operator. 15 (See id. at 2.) Darigold has only one Butter Churn Operator 16 working per shift, and that person is responsible for operating 17 two butter churns simultaneously and also covering for the Bulk 18 Packer Operator during that employee’s meal and rest breaks. 19 (Def.’s Statement of Undisputed Facts (“Def.’s SUF”) at 2(b) 20 (Docket No. 34-2).) As part of their duties, Butter Churn 21 Operators must be able to occasionally lift, move and/or carry 55 22

23 1 Both parties move for summary judgment on the two counts identified in plaintiff’s complaint. Plaintiff has styled 24 his motion a Motion for Partial Summary Judgment because even if he prevailed, he would still have to prove damages. (See Pl.’s 25 Reply in Supp. of Mot. for Summ. J. at 4 (Docket No. 46).) In addition, Darigold moves for summary judgment on whether it 26 engaged in good-faith in the interactive process to identify a 27 reasonable accommodation for the plaintiff, and accordingly, whether compensatory and punitive damages are available. (See 28 Def.’s Mot. for Summ. J. at 16–17.) 1 or 60 pounds, bend, twist, and stand for twelve hours, crawl, 2 maintain balance to safely climb a six-foot ladder, climb stairs 3 with only one handrail, and maintain balance to walk safely on 4 wet, slippery floors. (Def.’s SUF at 2(b)(i)– (vi)); (see Pl.’s 5 Resp. to Def.’s SUF at 2 (Docket No. 41).) 6 The essential functions of a Butter Churn Operator, as 7 established by Darigold on April 16, 2018, are as follows: 8 (1) At the start of the shift, the Worker will check what customer product is being run during the shift. 9 (2) During operation, the Worker will monitor fat and 10 salt levels on the computer monitor and make 11 adjustments accordingly. 12 (3) Worker will take samples for PH checks on every silo change and if dictated by Bulk Packer. This will 13 occur in the Butter Dept. Lab. 14 (4) Worker will also take samples of butter to perform fat and salt tests in the Butter Dept. Lab. 15 (5) Worker will monitor readings on computer and make 16 adjustments in the production flow as necessary. 17 (6) Worker will monitor salt levels in the salt tank 18 and may use a long handed rod to adjust the salt in the tote bag to maintain the flow. Worker will also 19 contact the Warehousemen when another salt tote is needed in the salt room. It will be loaded into the 20 dispenser by the Warehousemen using a Forklift. The 21 Worker will feed the opening section into the dispenser and cut open the tote bag to initiate flow. 22 (7) Worker will perform Cleaning In Place (“CIP”) 23 every other day or if required by a customer before and after a product run, on the butter churn and 24 related equipment. 25 (a) Worker will dismantle parts of the butter churn and related equipment to clean. 26 27 (b) Worker will change pipes and hoses to run CIP. 28 1 (c) Worker will spray with water hose the inside of vats and churn. 2 (d) Worker will initiate operation of CIP via 3 touch screen monitor and will make adjustments as needed. 4 5 (e) Worker will use foaming hose to hose down outside of equipment and water hose for rinsing. 6 (f) Worker will retrieve fluid samples during the 7 process and at the conclusion and take samples to the Butter Dept. Lab to complete tests. 8 (g) Once CIP is completed, Worker will reconnect 9 parts and change pipes and hoses to begin product 10 processing. 11 (8) Worker will use touch screen monitor to release cream from silos and salt to initiated production. 12 (9) Worker will take samples to test in the Butter 13 Dept Lab to verify the butter product is ready for production/packaging. The Worker will continue to 14 take samples throughout the production to verify product is meeting standard requirements. Worker will 15 make adjustments as needed using the touch screen 16 monitor. 17 (10) Worker will use water hose to clean up spills. 18 (11) Worker will make notification to Maintenance Dept of any breakdown in equipment that Worker can’t 19 correct. 20 (12) Worker will stay in contact with other Retail 21 Line Operators (Bulk Packer, Chip Operator, Quarter Pound Operator and Solid Quarter Pound Operator) 22 regarding any shutdowns or changes in production. 23 (See Pl.’s SUF at 29.) 24 In December 2013, plaintiff was diagnosed with distal 25 hereditary motor neuropathy –- a progressive disorder that 26 results in leg weakness. (See Pl.’s SUF at 3.) This condition 27 causes progressive loss of motor function in the legs and foot 28 1 drop and can impede the ability to walk, balance, bend, and lift 2 below the waist. (See Def.’s SUF at 1.) As a result of his 3 disability, plaintiff cannot get into or out of a squatting 4 position, maintain his balance while walking without wearing leg 5 braces, or bend down and lift things up from the floor while 6 wearing his leg braces. (See Def.’s SUF at 2(a)(i)–2(a)(vi); 7 Pl.’s Resp. to Def.’s SUF at 2.) Following his diagnosis, 8 plaintiff began wearing foot braces while at work to help prevent 9 him from tripping or falling. (See Pl.’s SUF at 4.) 10 Plaintiff did not formally request accommodations for 11 his disability from Darigold HR but worked out informal 12 “accommodations” with his supervisors. (See Pl.’s Resp. to 13 Def.’s SUF at 7(a).) For example, plaintiff was not required to 14 wear composite shoes because they were incompatible with his leg 15 braces. (See Def.’s SUF at 7(b).) Another “accommodation” made 16 for plaintiff was that he was not required to “down stack” or 17 unload 55-pound boxes of butter from the bottom two layers of a 18 pallet. (See Pl.’s SUF. at 45.) In order to run quality control 19 tests on the butter, Darigold employees place a pallet on the 20 ground and then place a 55-pound box of butter on the pallet in 21 order to run it through the metal detector. (See id. at 46–47.) 22 There were approximately five to six boxes of butter, each layer 23 separated by a pallet. (See id.) Plaintiff testified that the 24 “accommodation” that he worked out with his supervisors was for a 25 co-worker to place the bottom layers of butter boxes and pallets 26 on the ground after they had gone through the metal detector, and 27 plaintiff would do the same with the top layers of butter and 28 pallets, which allowed plaintiff to avoid lifting below his 1 waist.2 (See id. at 48.) 2 On December 4, 2017, plaintiff slipped on a wet 3 substance while at work and injured his back. (See id. at 5.) 4 After plaintiff’s injury, his health care provider gave him 5 activity restrictions, including no walking or standing for 6 prolonged periods of time and no lifting more than 20 pounds, and 7 he was placed on leave because he could not perform his butter 8 churn operator duties with those restrictions. (See Def.’s SUF 9 at 7(c).) Plaintiff understood that in order to return to work, 10 Darigold required him to complete a fitness-for-duty examination 11 stating that those restrictions had been removed and that he 12 could walk and stand for prolonged periods of time and lift at 13 least 55 pounds. (See id.) 14 Between April 16, 2010 and December 4, 2017, Darigold 15 did not have any disciplinary or safety records indicating that 16 it was concerned with plaintiff’s ability to safely or 17 effectively perform his job. (See Pl.’s SUF at 6.) However, 18 after plaintiff’s injury and the subsequent workers’ compensation 19 process, Darigold learned of plaintiff’s diagnosed disability and 20 its progressive nature. (See id. at 7.) In a January 10, 2018, 21 email from Shawn Reiersgaard, Darigold’s Workers’ Compensation 22 Manager, to Amy Glesner, a claims manager for Darigold’s Workers’ 23 Compensation insurer, Mr. Reiersgaard stated: 24 I believe the fundamental issue here is [plaintiff’s] doctor allows a return to modified 25 duty with conditions. Darigold has not allowed 26 2 Darigold states that it was not an accepted procedure 27 for five to six pallets of butter boxes to be stacked on top of each other. (See Def.’s Resp. to Pl.’s SUF 48 (Docket No. 43- 28 1).) 1 [plaintiff] to return to temporary modified duty because we are concerned his pre-existing 2 condition (which [is] not associated with the WC claim) put[s] him and his coworkers at risk of 3 injury. [Plaintiff] wants to work, Darigold wants him to work; we just need assurances that 4 he can work for Darigold at his job of injury (“JOI”) or at Temporary Modified Duty tasks 5 without a risk to his health and safety caused by his pre-existing condition. 6 7 (See id. at 8.) In an email from Ms. Glesner to Mr. Reiersgaard 8 on March 27, 2018, Ms. Glesner wrote that plaintiff had received 9 a full duty release for his workers compensation claim. (See id. 10 at 9.) She also wrote she that she assumed Darigold would not be 11 bringing plaintiff back to work until it knew that he was “fit 12 for the job” and noted that “our nurse is reaching out to see how 13 quickly we can get [plaintiff] in for a [functional capacity 14 evaluation] with a therapist” and that “they would then need a 15 detailed job description to evaluate if [plaintiff] is capable of 16 doing the tasks.” (See id.) 17 In a letter dated April 27, 2018, the Idaho Industrial 18 Commission stated that plaintiff “may return to the time-of- 19 injury duties on 4/24/18.” (See id. at 10.) Despite this, 20 Darigold placed plaintiff on Administrative Leave pending a 21 determination regarding his underlying non-work related 22 disability. (See id. at 11.) Darigold sent plaintiff to Dr. 23 Cody Heiner on May 14, 2018 for a Fitness for Duty/Functional 24 Capacity Evaluation to identify whether he could perform the 25 essential functions of his job with his disability. (See id. at 26 12.) On May 14, 2018, Dr. Heiner informed Darigold that 27 plaintiff was “capable of working with . . . accommodations.” 28 (See id. at 13.) Dr. Heiner stated that “the accommodations 1 already worked out with [plaintiff] remain appropriate at this 2 time.” (See id.) He emphasized that plaintiff should “limit 3 ladder use, and use only stationary ladders of no more than 6 4 steps, and always with both hands free to grip.” (See id.) Dr. 5 Heiner also stated that plaintiff should not lift below the waist 6 level because of his inability to bend at the ankles to lift with 7 the legs. (See id.) 8 Instead of returning plaintiff to work, Darigold told 9 plaintiff that it could no longer make the “accommodations” that 10 plaintiff believed he had previously been given. (See Def.’s 11 Resp. to Pl.’s SUF 14.) Darigold’s Senior Director of Human 12 Resources for the Field, Dana Kennedy, testified that plaintiff 13 could not return to work because, among other reasons, he could 14 not lift below waist level because of his inability to bend at 15 the ankles and lift with the legs. (See id. at 15.) Darigold 16 also stated that it did not return plaintiff to work after 17 receiving Dr. Heiner’s Fit-for-Duty evaluation because it was 18 unclear whether plaintiff could perform the essential functions 19 of the position with or without reasonable accommodation. (See 20 Pl.’s SUF at 16.) 21 In a May 24, 2018 email to Darigold’s Total Rewards 22 Manager, Ms. Erin Graf, Mr. Reiersgaard stated that they should 23 notify “Darigold Legal that [plaintiff] has completed a fit-for- 24 duty evaluation” and that they find plaintiff “unfit for duty”, 25 and that because no alternative position was available, HR 26 recommends termination.” (See id. at 17.) In response, Ms. Graf 27 stated that Darigold “may want to get some legal guidance on this 28 one” because it had to “offer some form of interactive process to 1 ensure that we’ve exhausted all obligations we have due to ADA 2 before we get to the state of separation from service.” (See 3 id.) Ms. Kennedy reiterated that advice was required because 4 plaintiff “truly believes he was provided accommodations in the 5 past and does not understand why those accommodations cannot 6 continue.” (See id. at 55.) 7 Darigold then arranged for a physical therapist, Scott 8 Billing, to perform a KEY Functional Assessment of plaintiff to 9 determine whether he could perform the essential functions of the 10 job. (See id. at 19.) Mr. Billing’s assessment was detailed, 11 and plaintiff was asked if he could perform certain maneuvers, 12 like pushing, pulling, and carrying various amounts of weights, 13 and to perform a variety of “Posture Components” like kneeling, 14 crawling, and climbing stairs. (See id. at 20.) Plaintiff was 15 able to lift 55.6 pounds from 30 to 60 inches above his shoulders 16 with 23 repetitions, and 65.6 pounds from 30 to 18 inches at 17 desk/chair level with 27 repetitions. (See Def.’s Resp. to Pl.’s 18 SUF 22.) The only lifting activity that plaintiff could not 19 perform was from 18 inches to the floor because of plaintiff’s 20 leg braces and leg weakness. (See Pl.’s SUF at 21.) Mr. Billing 21 also reported that plaintiff performed “Kneeling” by placing his 22 right hand on the desk when getting into position. (See id. at 23 22.) 24 On September 7, 2018, Mr. Billing informed Darigold of 25 his conclusions. (See id. at 23.) He stated that plaintiff 26 “demonstrated the current capacity for medium duty work” but that 27 “accommodations may need to be made for chair to floor lifting as 28 he was unable to perform this particular component of the 1 assessment.” (See id.) Mr. Billing noted that this was because 2 plaintiff could not perform squatting maneuvers due to his leg 3 braces and leg weakness. (See id.) Following the evaluation by 4 Mr. Billing, Darigold did not return plaintiff to work because 5 “it was unclear that plaintiff could perform the essential 6 functions of the position with or without reasonable 7 accommodation.” (See id. at 24.) 8 On September 20, 2018, Darigold terminated plaintiff. 9 (See id. at 25.) Darigold stated that plaintiff was “recently 10 evaluated by an Occupation Medicine physician and on May 14th, it 11 was concluded that you did not have a full release to return to 12 work by the physician.” (See id.) The letter also stated that 13 after plaintiff “requested a reconsideration of [his] status,” a 14 functional capacity test was completed, and the results indicated 15 limitations that would not allow plaintiff to complete the 16 essential duties of his job and that plaintiff could not be 17 reasonably accommodated. (See id. at 25.) The letter concluded 18 that because plaintiff was “unable to provide medical 19 certification of full release to return to work”, defendant could 20 no longer hold his position. (See id.) 21 In Ms. Kennedy’s deposition, she testified that 22 plaintiff’s disability prevented him from being able to perform 23 essential functions 7(a–e) and 10.3 (See Def.’s Resp. to Pl.’s 24 SUF 31.) Darigold concluded that plaintiff could not perform 25 these essential functions, including the ability to pick up a 26 3 These include the essential Cleaning in Place 27 functions, where the worker dismantles parts of the butter churn and related equipment to clean and using a water hose to clean up 28 spills on the factory floor. 1 water hose, because he “could not bend from the waist or lift 2 from the waist.” (See Pl.’s SUF at 32.) When Ms. Kennedy was 3 asked whether she had an understanding of whether plaintiff could 4 pick up a hose off the ground when determining whether plaintiff 5 could perform the essential functions of his job, she testified, 6 “[b]ased on the information that others were having to do his job 7 that he couldn’t do -- again, getting back to the stacking of the 8 pallets -- that really led us to come to the conclusion that he 9 wasn’t able to do his position.” (See id. at 34.) Ms. Kennedy 10 did not know which essential function of plaintiff’s job required 11 pallets to be stacked, but stated that “the pallets were used to 12 help him do his job and they were stacked very unsafely and 13 high.” (See id. at 35.) 14 Ms. Kennedy additionally testified that that the 15 problem with the “accommodation” that plaintiff had worked out 16 with his supervisors was that the pallets were “not bound 17 together.” (See id. at 50.) Ms. Kennedy emphasized that the 18 pallets were just stacked on top of each other and that it was an 19 environment where it was wet and slippery and that there was a 20 potential for a fall. (See id.) Ms. Kennedy testified that the 21 pallets created a greater ability for someone to fall because the 22 factory floor was not a dry surface, and “you’re walking and 23 you’re reaching and somebody that already needs braces -- it’s 24 not something that is a Darigold practice.” (See id. at 51.) 25 Ms. Kennedy also stated that “this is a facility where there is 26 water on the floor at all times” and that this “just wasn’t a 27 safe environment to have somebody in that was not stable in his 28 1 balance.” (See id. at 61.)4 When Ms. Kennedy was asked if she 2 had determined that plaintiff’s pre-existing disability put 3 plaintiff and his coworkers at risk of injury, she testified that 4 Darigold believed that “it would potentially be a safety issue 5 for him” because “[f]or an individual who has braces in that 6 environment, lifting, there is a potential to slip and fall” and 7 that “those pallets could have fallen any time, the way they were 8 stacked.” (See id. at 62.) 9 In his deposition, plaintiff gave a detailed 10 explanation, while referencing photographs of the workspace, 11 about how he would use alternative body movements to accomplish 12 the essential functions that other Butter Churn Operators might 13 have accomplished by bending at the waist. (See id. at 40.) In 14 his deposition, plaintiff testified that if he had to do 15 something below waist level, such as picking up the water hose, 16 he could always get on his knees rather than bend at the waist. 17 (See id. at 41-42.) Plaintiff stated that “down stacking” 18 pallets and boxes was not a part of his job duties as a Butter 19 Churn Operator, but that if “a supervisor asks me to do something 20 that’s not my job, I take it as, I need your help with one thing 21 real quick.” (See Pl.’s SUF at 49.) 22 Darigold had always considered plaintiff to be a good 23 employee before terminating him. (See Pl.’s SUF at 30.) Prior 24 to his termination, Darigold allowed plaintiff to use various 25

4 In an email from May 21, 2018, Ms. Thorpe West stated 26 that plaintiff’s supervisor, Mr. Kenny Rambow, “was aware through 27 others that [plaintiff] did have a propensity to fall and that “on the day of the incident, it was reported that [he] had fallen 28 three other times that day.” (See id. at 63.) 1 forms of leave from December 5, 2017 to September 20, 2018. (See 2 Def.’s SUF at 7(d).) However, Darigold believed that extending 3 plaintiff’s leave of absence past the date his employment was 4 terminated was not a reasonable accommodation because plaintiff’s 5 physical restrictions due to his disability were permanent. (See 6 Def.’s SUF at 5.) Darigold also contends that it “engaged in the 7 interactive accommodation process and determined that [it was] 8 unable to accommodate plaintiff’s restrictions.” (See Pl.’s SUF 9 at 53.) Ms. Kennedy testified that the steps Darigold took to 10 identify reasonable accommodations were (1) reaching out to 11 doctors, (2) performing the functional analysis, (3) having 12 plaintiff analyzed by Mr. Billing, and (4) having three or four 13 specialists and doctors review plaintiff’s medical records to 14 help Darigold identify a way to bring plaintiff back. (See id. 15 at 54.) 16 III. Discussion 17 Summary judgment is proper “if the movant shows that 18 there is no genuine dispute as to any material fact and the 19 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 20 P. 56(a). The party moving for summary judgment bears the 21 initial burden of establishing the absence of a genuine issue of 22 material fact and can satisfy this burden by presenting evidence 23 that negates an essential element of the non-moving party’s case. 24 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If the 25 moving party has properly supported its motion, the burden shifts 26 to the non-moving party to set forth specific facts to show that 27 there is a genuine issue for trial. See id. at 324. “Where the 28 record taken as a whole could not lead a rational trier of fact 1 to find for the non-moving party, there is no genuine issue for 2 trial.” Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 3 U.S. 574, 587 (1986). Any inferences drawn from the underlying 4 facts must, however, be viewed in the light most favorable to the 5 party opposing the motion. See id. 6 The enforcement provision of Title I of the ADA, under 7 which plaintiff brought suit, provides that: 8 No covered entity shall discriminate against a qualified individual with a disability because of 9 the disability of such individual in regard to job application procedures, the hiring, 10 advancement, or discharge of employees, employee compensation, job training, and other terms, 11 conditions, and privileges of employment. 12 42 U.S.C. § 12112(a). Under the ADA, an employee bears the 13 ultimate burden of proving that he is (1) disabled under the Act, 14 (2) a “qualified individual with a disability,” and (3) 15 discriminated against “because of his disability.”5 See Nunes v. 16 Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). 17 Discrimination includes adverse employment action, but it also 18 “includes an employer’s not making reasonable accommodations to 19 the known physical or mental limitations of an otherwise 20 qualified. . . employee, unless [the employer] can demonstrate 21 that the accommodation would impose an undue hardship on the 22 operation of [its] business.” US Airways, Inc. v. Barnett, 535 23 U.S. 391, 396 (2002) (quoting § 12112(b)(5)(A)); see also Mendoza 24 5 “Courts interpret the standards for disability 25 [discrimination] under the ADA and the IHRA identically. Accordingly, when the court refers to one statute, its reference 26 impliedly includes the other.” Ward v. Sorrento Lactalis, Inc., 27 392 F. Supp. 2d 1187, 1190 n.1 (D. Idaho 2005) (citation omitted). 28 1 v. Roman Catholic Archbishop of Los Angeles, 824 F.3d 1148, 1150 2 (9th Cir. 2016) (stating that the ADA “defines discrimination to 3 include an employer’s failure to make [a] reasonable 4 accommodation.”). 5 Once an employee establishes a prima facie case of 6 disability discrimination, ordinarily the burden shifts to the 7 employer to provide “a non-discriminatory reason for that 8 discharge which ‘disclaims any reliance on the employee’s 9 disability in having taken the employment action.’” Snead v. 10 Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th Cir. 11 2001). If an employer establishes a non-discriminatory reason 12 for the discharge which disclaims any reliance on the employee’s 13 disability, the employee “bears the burden at trial of showing 14 that [the employer’s] reason for. . . termination was 15 pretextual.” Id. However, in cases such as this where the 16 employer acknowledges that it relied upon the terminated 17 employee’s disability as its stated reason for the termination 18 burden shifting does not apply. Mustafa v. Clark Cnty. Sch. 19 Dist., 157 F.3d 1169, 1175-76. (9th Cir. 1998). When an 20 “employer acknowledges reliance on the disability in the 21 employment decision, the employer bears the burden of showing 22 that the disability is relevant to the job’s requirements.” See 23 id. at 1176.6 24 6 Because Darigold contends that plaintiff cannot prove 25 his prima facie case that he is a “qualified individual”, it argues that the “relevance of [p]laintiff’s disability to the 26 requirements of his job is immaterial” and accordingly did not 27 offer any evidence or arguments related to the relevance of plaintiff’s disability to the requirements of the job. (See 28 Def.’s Resp. to Pl.’s Mot. for Summ. J. at 3 n.2(Docket No. 43).) 1 A. Qualified Individual 2 The central issue here is whether plaintiff is a 3 “qualified individual” under the ADA “who, with or without 4 reasonable accommodation, can perform the essential functions of 5 the employment position that such individual holds or desires.” 6 42 U.S.C. § 12111(8); see also 29 C.F.R. § 16320.2(m). 7 7 “Essential functions” are “fundamental job duties of the 8 employment position . . . not includ[ing] the marginal functions 9 of the position.” 29 C.F.R. § 1630.2(n)(1); see Cripe v. City of 10 San Jose, 261 F.3d 877, 887 (9th Cir. 2001). “If a disabled 11 person cannot perform a job’s ‘essential functions’ (even with a 12 reasonable accommodation), then the ADA’s employment protections 13 do not apply.” Cripe, 261 F.3d at 884–85. “If, on the other 14 hand, a person can perform a job’s essential functions, and 15 therefore is a qualified individual, then the ADA prohibits 16 discrimination” with respect to the employment actions outlined 17 in 42 U.S.C. § 12112(a). Id. An employee must be “qualified” at 18 the time of the alleged discriminatory conduct. Kaplan v. City 19 of N. Las Vegas, 323 F.3d 1226, 1230 (9th Cir. 2003). 20 “The ADA does not require an employer to exempt an 21 employee from performing essential functions or to reallocate 22 essential functions to other employees.” See Dark v. Curry 23 Cnty., 451 F.3d 1078, 1089 (9th Cir. 2006). “Although the 24

25 7 The parties do not dispute that plaintiff is disabled under the terms of the ADA, (see Pl.’s SUF at 3), that plaintiff 26 suffered the adverse employment action of the termination of his 27 employment, (see id. at 25), or that plaintiff was terminated because of his disability. (See id.; Def.’s Resp. to Pl.’s Mot. 28 for Summ. J. at 3.) 1 plaintiff bears the ultimate burden of persuading the fact finder 2 that he can perform the job’s essential functions . . . an 3 employer who disputes the plaintiff’s claim that he can perform 4 the essential functions must put forth evidence establishing 5 those functions.” Bates v. United Parcel Serv. Inc., 511 F.3d 6 974, 991 (9th Cir. 2007). 7 The Equal Employment Opportunity Commission (“EEOC”)’s 8 guidelines list the non-exhaustive factors that the court should 9 consider in determining whether a job duty is “essential”: (1) 10 the employer’s judgment as to which functions are essential; (2) 11 written job descriptions prepared before advertising or 12 interviewing applicants for the job; (3) the amount of time spent 13 on the job performing the function; (4)the consequences of not 14 requiring the incumbent to perform the function; (5) the terms of 15 a collective bargaining agreement; (6) the work experience of 16 past incumbents in the job; and/or (7) the current work 17 experience of incumbents in similar jobs. 29 C.F.R. § 18 1630.2(n)(3)(i)-(vii); see also 42 U.S.C. § 12111(8). 19 A job function may also be considered essential for any 20 of several reasons, including: (i) “the function may be essential 21 because the reason the position exists is to perform that 22 function”; (ii) “the function may be essential because of the 23 limited number of employees available among whom the performance 24 of that job can be distributed”; and/or (iii) “the function may 25 be highly specialized so that the incumber in the position is 26 hired for his or her expertise or ability to perform the 27 particular function.” 29 C.F.R. § 1630.2(n)(2). 28 Darigold argues that plaintiff is not a “qualified 1 individual” under the ADA who could perform the essential 2 functions of his post with or without reasonable accommodations. 3 (See Def.’s Mot. for Summ. J. at 11-15.) Plaintiff counters that 4 he is a “qualified employee”, noting that he was able to perform 5 the essential functions of his post for four years following his 6 diagnosis with informal “accommodations” that he had worked out 7 with his supervisors. (See Pl.’s Mot. for Summ. J. at 10–19.) 8 Plaintiff also emphasizes that he was cleared to return to work 9 with accommodations by Dr. Heiner and that Mr. Billing stated 10 that plaintiff could return to medium-duty work with possible 11 accommodations for chair to floor lifting. (See Pl.’s SUF at 13, 12 23.) The court will address each disputed essential function in 13 turn. 14 1. Squatting or Stooping Near Floor 15 Darigold argues that Butter Churn Operators must be 16 able to stoop or squat near the floor. (See Def.’s Reply in 17 Supp. of Mot. for Summ. J. at 3 (Docket No. 45).) It states that 18 squatting or stooping is necessary in order to perform the 19 essential functions of taking samples of butter and to perform 20 Cleaning In Place. (See id.) In particular, Darigold argues 21 that the Butter Churn Operators must squat or stoop to access 22 sample ports and to change, repair or replace hose, pipes, 23 valves, and other equipment as part of the CIP process. (See 24 id.) Plaintiff is indisputably unable to get into or out of a 25 squatting position because of his disability. (See Def.’s SUF at 26 2(iii).) Instead, plaintiff would kneel to accomplish these 27 essential functions. (See Pl.’s SUF at 40–42.) 28 The “Posture Requirement” section of the Butter Churn 1 Operator “Functional Job Analysis” states that the “[w]orker has 2 choice in bending, kneeling, squatting, and stooping in 3 performance of some duties below waist level.” (See Decl. of 4 Karin Jones in Supp. of Mot. for Summ. J. at Ex. 28, p.6 (“Jones 5 Decl.”).) Despite this, Darigold apparently contends that 6 kneeling on the floor in the Butter Department is not acceptable 7 for safety reasons. (See Def.’s Reply in Supp. of Mot. for Summ. 8 J. at 8.) Darigold argues that “if someone’s hand or knee 9 touches the ground . . . it can result in the transfer of a 10 contaminant from the floor (including the chemicals used to clean 11 during the CIP process) to the equipment, and possibly to the 12 product itself.” (See Decl. of Nick Kinslow in Supp. of Def.’s 13 Mot. for Summ. J. at ¶ 7 (“Kinslow Decl.”) (Docket No. 34-21).) 14 However, Darigold has provided no evidence as to why a knee-pad 15 covered knee would cause any more of a contamination risk to 16 Darigold’s products than an employee’s shoes or why plaintiff’s 17 hand was more likely to touch the ground while kneeling than any 18 other employee who performs these essential functions by 19 squatting or stooping. (See Pl.’s Reply in Supp. of Mot. for 20 Summ. J. at 16 (Docket No. 46).)8 Darigold has not produced any 21

22 8 Plaintiff disputes defendant’s statement that plaintiff could not get in or out of a kneeling position without holding 23 onto something. (See Pl.’s Resp. to Def.’s SUF at 2.) Although Darigold argues that plaintiff would grab onto machinery parts to 24 lower and raise himself from a kneeling position, plaintiff argues that Darigold has failed to present any evidence that it 25 is not the standard practice for Darigold employees to grab, lean or even sit on equipment in the way that plaintiff did and notes 26 that there is no evidence that he ever damaged any Darigold 27 property during his tenure. (See Def.’s Resp. to Pl.’s Mot. for Summ. J. at 7; Pl.’s Reply in Supp. of Mot. for Summ. J. at 10.) 28 1 health and safety protocols that would allow this court to 2 determine the risks of cross-contamination from kneeling as 3 opposed to squatting or stooping. Perhaps most importantly, if 4 there were such a high risk of cross-contamination because 5 plaintiff knelt to perform these essential functions, it begs the 6 question why no one at Darigold raised any safety concerns about 7 plaintiff’s kneeling in the four years after his disability 8 diagnosis. 9 Accordingly, there is a genuine issue of material fact 10 as to whether allowing him to perform the essential functions of 11 taking samples of butter and cleaning in a kneeling position, 12 rather than by squatting or stooping, constitutes a reasonable 13 accommodation. 14 2. Lifting 55-Pound Boxes from Below Waist Level 15 Darigold states that an essential function of the 16 Butter Churn Operator job is the ability to lift 55-pound boxes 17 of butter from below waist level and “down stack” them onto 18 pallets. 9 (See Def.’s Reply in Supp. of Mot. for Summ. J. at 4.) 19 In Darigold’s view, an essential part of the Butter Churn 20 Operator job is to cover for the Bulk Pack Operator’s duties 21 during meal and rest breaks and to periodically work in the Re- 22 Melt Room where pallets of butter are emptied out of boxes and 23 9 Darigold has at times appeared to contend that 24 plaintiff was unable to pick up a water hose off the ground in order to perform many of the essential cleaning functions. (See 25 Pl.’s SUF at 31–32.) However, plaintiff asserts that he had no trouble picking up the water hose and could always get on his 26 knees to do so. (See id. at 42.) Darigold has not focused on 27 whether or not plaintiff could pick up a hose in order to clean in its motions and therefore the court will not address this 28 issue further. 1 added back into the production line. (See id. at 5.) Plaintiff 2 is unable to bend down and lift things up from the floor below 3 waist level because his leg braces prevent him from bending at 4 the knees and lifting with his legs rather than his back. (See 5 Def.’s SUF at 2(vi).) 6 In the Functional Job Analysis that Darigold 7 commissioned on April 16, 2018 as a result of plaintiff’s 8 disability, providing support during breaks for the Bulk Packer 9 is not listed as an “Essential Function” but rather appears under 10 the category “Other Functions.” (See Ex. 28 to Jones Decl. at 11 3.) Working in the Re-melt room is not listed in the Functional 12 Job Analysis at all. Plaintiff testified that these functions 13 were not part of his job as a Butter Churn Operator but something 14 that he assisted with if asked by his supervisors. (See Pl.’s 15 SUF at 48.) Nevertheless, Darigold now contends that covering 16 for these posts, and the heavy lifting that these posts require, 17 are “essential functions” of a Butter Churn Operator because of 18 the “limited number of employees available among whom the 19 performance of that job function can be distributed.” See 29 20 C.F.R. § 1630.2(n)(2)(ii). 21 Given the conflicting evidence submitted by the 22 parties, there is a genuine issue of material fact as to whether 23 lifting heavy boxes of butter below waist level in order to 24 provide support during breaks for the Bulk Packer Operator and to 25 assist in the Re-melt room is an essential function of the Butter 26 Churn Operator position.10 27 10 Because there is a genuine issue of material fact as to 28 whether lifting heavy boxes of butter below waist level in order 1 3. Climbing Stairs Using a Single Handrail 2 Darigold also argues that the ability to climb up and 3 down stairs while holding only onto a single handrail on one side 4 of the staircase is an essential requirement of the Butter Churn 5 Operator Position. (See Reply in Supp. of Mot. for Summ. J. at 6 3.) The “Functional Job Analysis” of the Butter Churn Operator 7 position states that Butter Churn Operators are occasionally 8 required to climb stairs. (See Ex. 11 to Jones Decl. at 3.) 9 During each shift, a Butter Churn Operator is required to climb a 10 set of stairs in order to view and log information on a computer 11 screen located on a platform and to look into the door and site 12 glass of the butter churn to make sure that the consistency looks 13 right. (See Kinslow Decl. at ¶ 5.) Those stairs have only one 14 handrail due to equipment on the other side which hinders the 15 installation of a handrail there. (See id. at ¶ 6.) Darigold 16 states that it is unsafe to hold onto the site glass on the side 17 of the stairs which lacks a handrail because “it was not built 18 for that purpose” and the site glass gets very hot and slick 19 during the four-hour Cleaning in Place process that occurs every 20 24 to 48 hours. (See id.) Darigold also contends that the 21 Butter Churn Operator sometimes needs a free hand while climbing 22 the stairs to carry the clipboard used for logging the readings 23 from the screen or a replacement site glass and clamp. (See id.) 24 Despite the evidence proffered by Darigold, there is

25 to cover for the Bulk Packer Operator on meal and rest breaks or to assist in the Re-Melt room are essential functions of the 26 Butter Churn Operator position, the court need not determine at 27 this stage whether the stacking of pallets or having another co- worker unload the bottom layers of pallets is a reasonable 28 accommodation. 1 nothing in the record that affirmatively demonstrates plaintiff 2 was incapable of ascending stairs while holding only one 3 handrail. Although plaintiff did testify that he sometimes would 4 place his hand on the site glass in addition to the handrail when 5 climbing stairs, (see Jones Decl. at Ex. 1, 285:20–286:14.), it 6 is not clear from the record that plaintiff was unable to ascend 7 the stairs without doing so. While plaintiff apparently used two 8 handrails when climbing stairs during the Key Fitness Assessment 9 with Mr. Billing, it is not clear that he was ever tested on his 10 ability to ascend or descend stairs with one handrail. (See 11 Pl.’s Reply in Supp. of Mot. for Summ. J. at 11; Jones Decl. Ex. 12 18 at 5.) Although Dr. Heiner stated that plaintiff should use 13 stationary ladders with both hands free to grip, (see id. at Ex. 14 15), he does not appear to have ever evaluated whether plaintiff 15 could ascend stairs with only one handrail. After considering 16 all the evidence, the court concludes that there is a genuine 17 issue of material fact as to whether plaintiff can ascend a 18 staircase with one handrail in order to in order to view and log 19 information on a computer screen located on a platform.11 20 4. Physical Requirements as Essential Functions 21 As illustrated above, Darigold’s central argument is 22 that many of plaintiff’s permanent physical limitations due to 23 his disability make him unable to meet many of the physical 24 requirements for performing the essential functions of Butter 25 churn operator position. (See Def.’s Mot. for Summ. J. at 13.) 26

27 11 The court does not decide whether using one hand on a handrail to ascend or descend the stairs is an essential part of 28 the Butter Churn Operator position. 1 While the court finds this argument unpersuasive at the summary 2 judgment stage for the reasons set forth above, it is not clear 3 whether such physical requirements can constitute the essential 4 functions of a post under the ADA. The Interpretive Guidance on 5 Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 6 1630, App., elaborates on the reasonable accommodation process by 7 stating that if a position requires an employee to pick up fifty 8 pound sacks and carry them from the company loading dock to the 9 storage room, “the essential function and purpose of the job is 10 not the requirement that the job holder physically lift and carry 11 the sacks, but the requirement that the job holder cause the sack 12 to move from the loading dock to the storage room.” Id. 13 Darigold attempts to explain this apparent 14 contradiction in their argument by saying that plaintiff has 15 “failed to take into account the specific environment in which 16 the position’s essential functions were performed, which made 17 compliance with Darigold’s health and safety protocols critical.” 18 (See Def.’s Resp. to Pl.’s Mot. for Summ. J. at 5.) Darigold 19 contends that the essential functions of plaintiff’s position 20 implicitly included the ability to use or avoid certain physical 21 movements as needed to conform to Darigold’s standards. (See 22 id.) However, as stated above, Darigold has not produced or 23 identified any “reasonable health and safety protocols” for the 24 court to analyze nor has it asserted that its employees have been 25 informed of these protocols or that they are enforced. (See 26 Pl.’s Reply in Supp. of Mot. for Summ. J. at 3.) Therefore, the 27 court cannot readily determine whether certain body movements or 28 physical functions constitute essential functions of the Butter 1 Churn Operator position because using other movements would 2 violate Darigold’s health and safety standards.12 3 Accordingly, after considering the evidence presented 4 by both parties, the court determines that there is a genuine 5 issue of material fact as to whether plaintiff was a “qualified 6 individual” who, with or without reasonable accommodation, could 7 perform the essential functions of the employment position. The 8 parties’ motions for summary judgment on this issue will 9 therefore be denied. 10 B. Examinations in Violation of 42 U.S.C. § 12112(d)(4)(A) 11 Plaintiff argues that Darigold inquired into 12 plaintiff’s medical history and records regarding his disability 13 in violation of 42 U.S.C. § 12112(d)(4)(A) by forcing him to 14 undergo two fitness-for-duty examinations. (See Pl.’s Mot. for 15 Summ. J. at 24.)13 Employers “shall not require a medical

16 12 Darigold primarily relies on unpublished out of circuit precedent for its contention that physical functions can 17 constitute essential functions of a position. Darigold also 18 relies on one unpublished Ninth Circuit case, Taylor v. Renown Health, 675 F. App’x 676, 677 (9th Cir. 2017), in which the Ninth 19 Circuit affirmed a district court’s finding that lifting over 50 pounds was an essential function of a Certified Nursing 20 Assistant. Not only is Taylor not binding, it also employed a different standard than the one at issue here for determining 21 what constitutes a “qualified individual” under the ADA. In 22 Taylor, the plaintiff contended she was “regarded as disabled”, which requires a plaintiff to make prima facie showing that she 23 was able to perform the essential functions of the job without accommodation in order to demonstrate that she was a “qualified 24 individual.” Taylor, 675 F. App’x at 677. This is not the test at issue here, and therefore, the court does not find Taylor 25 persuasive.

26 13 Plaintiffs need not prove that they are “qualified 27 individuals” with a disability in order to bring claims challenging the scope of medical examinations under the ADA. See 28 Fredenburg v. Contra Costa Cnty. Dept. of Health Servs., 172 F.3d 1 examination and shall not make inquiries of an employee as to 2 whether such employee is an individual with a disability or as to 3 the nature or severity of the disability, unless such examination 4 or inquiry is shown to be job-related and consistent with 5 business necessity.” 42 U.S.C. § 12112(d)(4)(A). The 6 implementing regulations also state that an employer “may make 7 inquiries into the ability of an employee to perform job-related 8 functions.” Indergard v. Ga.-Pac. Corp., 582 F.3d 1049, 1053 9 (9th Cir. 2009) (citing 29 C.F.R. § 1630.14(c)); see also 29 CFR 10 §§ 1630.13; 1630.14(c). The “business necessity” standard is 11 “quite high, and is not to be confused with mere expediency.” 12 Brownfield v. City of Yakima, 612 F.3d 1140, 1145 (9th Cir. 13 2010). The “business necessity” test is objective, and the 14 employer bears the burden of demonstrating business necessity. 15 See id. at 1146. 16 Plaintiff complains that Darigold inquired into his 17 disability after learning about his diagnosis from his workers’ 18 compensation records, in violation of Darigold’s EEOC policy.14 19 Plaintiff relies on Yin v. California,15 95 F.3d 864, 868 (9th

20 1176, 1181 (9th Cir. 1999).

21 14 Darigold’s EEOC policy states that “[n]o questions in 22 any examination, application form, or other personnel proceeding, will be framed as to attempt elicit information concerning 23 protected characteristics from an applicant, eligible candidate, or employee.” (See Pl.’s SUF at 58.) 24 15 Plaintiff also purports to rely on Bentivegna v. U.S. 25 Department of Labor, 694 F.2d 619, 621–22 (9th Cir. 1982), and Cripe, 261 F.3d at 890. However, neither case deals with medical 26 examinations, but rather concern the requirement under 29 C.F.R. 27 § 32.14 that job qualifications that tend to exclude people with disabilities must be consistent with business necessity. These 28 cases are therefore of little assistance to the court on this 1 Cir. 1996), and contends that the business necessity standard 2 cannot be met without showing that the “employee’s health 3 problems have had a substantial and injurious impact on an 4 employee’s job performance.” However, the Ninth Circuit has made 5 clear that the business necessity standard may be met even before 6 an employee’s work performance declines if the employer is faced 7 with “significant evidence that could cause a reasonable person 8 to inquire as to whether an employee is still capable of 9 performing his job.” Brownfield, 612 F.3d at 1146. The EEOC 10 Enforcement Guidance also states that the “business necessity” 11 standard may be met when an employer is given reliable 12 information “by a credible third party that an employee has a 13 medical condition, or the employer may observe symptoms 14 indicating that an employee may have a medical condition that 15 will impair his/her ability to perform essential job functions or 16 will pose a direct threat.” See EEOC Enforcement Guidance on 17 Disability-Related Inquiries and Medical Examinations of 18 Employees Under the ADA, (EEOC July 26, 2000). 19 The court agrees that Darigold had an objective and 20 legitimate basis to doubt plaintiff’s ability to perform his 21 duties. In December 2017, plaintiff had a significant fall at 22 work and Darigold learned through the workers’ compensation 23 process that plaintiff had distal hereditary motor neuropathy. 24 (See Def.’s Reply in Supp. of Mot. for Summ. J. at 12.) In a 25 medical evaluation for plaintiff’s back injury shortly after his 26 fall, plaintiff’s doctor noted that plaintiff “falls all the 27

28 point. 1 time” and had “significant paralysis of his dorsiflexors and 2 plantar flexors of his feet with atrophy of the calf muscles.” 3 (See Jones Decl. at Ex. 3.) Another doctor who examined 4 plaintiff shortly after his injury noted that plaintiff was “only 5 able to partially extend both his lower legs”, “ha[d] no strength 6 or range of motion and his feet or ankles”, and “no strength due 7 to his neuropathy.” (See id. at Ex. 5.) Moreover, Darigold also 8 learned from plaintiff’s supervisor that plaintiff “did have a 9 propensity to fall” and that “on the day of the final incident, 10 it was reported that [plaintiff] had fallen three other times 11 that day.” (See Pl.’s SUF at 63.) 12 Plaintiff argues that there was no need for the 13 functional capacity evaluation by Mr. Scott Billing because Dr. 14 Heiner had informed Darigold that plaintiff could return to work 15 with the same “accommodations” previously provided. (See Pl.’s 16 Resp. to Def.’s SUF at 6(b).) However, the evaluation by Mr. 17 Billing was much more thorough and provided significantly more 18 objective data than Dr. Heiner’s evaluation regarding plaintiff’s 19 physical abilities and restrictions. (See Pl.’s SUF at 20; Jones 20 Decl. at Exs. 15, 16–18.) In sum, the record clearly indicates 21 that the two medical examinations of plaintiff were job-related 22 and that Darigold had good cause for attempting to determine 23 whether plaintiff could safely perform his job. See Yin, 95 F.3d 24 at 868. 25 Moreover, it was plaintiff who requested that Darigold 26 grant him reasonable accommodations, or continue to provide him 27 the informal “accommodations” that he had worked out with his 28 supervisors, in connection with his return to work. (See Mot. 1 for Summ. J. at 19.) Under the ADA, “an employer may request 2 [that] the employee undergo a medical examination as part of a 3 request for reasonable accommodation.” Welch v. Haw. Med. Serv. 4 Ass’n, No. 01-00127 HG-BMK, 2002 WL 31028641, at *10 (D. Haw. 5 July 12, 2002) (citing Kennedy v. Superior Printing Co., 215 F.3d 6 650, 656 (6th Cir. 2000)). The fitness-for-duty examinations 7 were therefore entirely appropriate for this reason as well. 8 Accordingly, the court concludes as a matter of law 9 that plaintiff’s two fitness-for-duty examinations were permitted 10 by the ADA and were job-related and consistent with business 11 necessity. Darigold is therefore entitled to summary judgment on 12 this claim. 13 C. Good Faith Engagement in Interactive Process 14 Darigold additionally argues that plaintiff’s request 15 for compensatory and punitive damages under the ADA fails as a 16 matter of law because such damages are not available where the 17 employer “demonstrates good faith” efforts to engage in an 18 interactive process in order to identify, if possible, a 19 reasonable accommodation that would permit plaintiff to maintain 20 his employment. See 42 U.S.C. § 1981a(a)(3). The term 21 “‘reasonable accommodation’ may include . . . acquisition or 22 modification of equipment or devices . . . and other similar 23 accommodations for individuals with disabilities.” 42 U.S.C. § 24 12111(9). “Once an employer becomes aware of the need for 25 accommodation, that employer has a mandatory obligation under the 26 ADA to engage in an interactive process with the employee to 27 identify and implement appropriate reasonable accommodations” 28 that will enable the employee to perform his job duties. 1 Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1137 (9th 2 Cir. 2001). Ninth Circuit “precedent establishes that employers 3 must engage in an interactive, individualized dialogue with 4 employees to identify potential options which might serve as 5 reasonable accommodations.” Stephenson v. United Airlines, Inc., 6 9 Fed. Appx. 760, 765 (9th Cir. 2001). 7 The interactive process requires communication and 8 good-faith exploration of possible accommodations between 9 employers and individual employees, and neither side can delay or 10 obstruct the process. See id. Employers who fail to engage in 11 the interactive process in good faith face liability for the 12 remedies imposed by the statute if a reasonable accommodation 13 would have been possible. See id. at 1137–38. “An appropriate 14 reasonable accommodation must be effective in enabling the 15 employee to perform the duties of the position.” See id. at 1137 16 (internal citations omitted). The plaintiff bears the burden of 17 showing “the existence of a reasonable accommodation that would 18 have enabled him to perform the essential functions of an 19 available job.” Dark, 451 F.3d at 1088. To avoid summary 20 judgment, however, plaintiff “need only show that an 21 accommodation seems reasonable on its face, i.e., ordinarily or 22 in the run of cases.” See id. (internal citations omitted). 23 Plaintiff argues that he had been provided reasonable 24 accommodations, albeit informal ones, which permitted him to 25 perform the essential functions of his job for four years 26 following his disability diagnosis. (See Pl.’s Mot. for Summ. J. 27 at 20.) As discussed above, the “accommodations” which both 28 parties identify plaintiff received were: (1) being exempt from 1 wearing composite shoes because he could not comfortably do so 2 while wearing his leg braces (see Def.’s SUF at 7(b)), and (2) 3 for a co-worker to place the bottom layers of butter boxes and 4 pallets on the ground after they had gone through the metal 5 detector, while plaintiff would do the same with the top layers 6 of butter and pallets which allowed plaintiff to avoid lifting 7 below the waist.16 (See Pl.’s SUF at 48.) Plaintiff additionally 8 explained that he would use alternative body movements, such as 9 kneeling, to accomplish duties that might otherwise be 10 accomplished by bending at the waist or squatting. (See id. at 11 40–42.) That plaintiff was able to work as a Butter Churn 12 Operator for four years with these informal accommodations and 13 alternative body movements, without any disciplinary or safety 14 records indicating that Darigold was in any way concerned with 15 his ability to safely or effectively perform his job, (see Pl.’s 16 SUF at 6), satisfies plaintiff’s duty to show that these 17 accommodations appear reasonable on their face.17 See Dark, 451 18 F.3d at 1088. 19 Darigold contends that it engaged in the interactive 20 process by reaching out to doctors, having the functional 21 analysis evaluations performed by Dr. Heiner and Dr. Billing, and 22 having three or four specialists/doctors review plaintiff’s 23 16 As detailed above, it is a genuine issue of material 24 fact whether “down stacking” butter boxes to cover for the Bulk Packer on meal and rest breaks or to assist in the Re-melt Room 25 constitutes an essential function of the Butter Churn Operator Position. 26

27 17 The court makes no finding at this stage as to whether these accommodations are reasonable as a matter of law. 28 1 medical records. (See Pl.’s SUF at 54.) Darigold also argues 2 that it “far exceeded its obligation to engage with plaintiff to 3 find a reasonable accommodation for his physical limitations” 4 because “[p]laintiff was provided with almost a full year of 5 leave, almost all of which was paid . . . and Darigold sought the 6 advice and input of numerous internal stakeholders, both at 7 corporate headquarters and in the Caldwell facility.” (See 8 Def.’s Mot. for Summ. J. at 17.) However, none of these steps 9 identified by Darigold clearly constitute a reasonable 10 accommodation that could have enabled plaintiff to perform his 11 job duties, as required by the ADA.18 See Humphrey, 239 F.3d at 12 1127 (emphasis added). The ADA “requires every type of employer 13 to find ways to bring the disabled into its ranks, even when 14 doing so imposes some costs and burdens.” Cripe, 261 F.3d at 15 881. 16 Whether an accommodation is reasonable “depends on 17 the individual circumstances of each case, and requires a fact- 18 specific, individualized analysis of the disabled individual’s 19 circumstances and the [potential] accommodations.” Dunlap v. 20 Liberty Natural Prods., Inc., 878 F.3d 794, 799 (9th Cir. 2017) 21

22 18 Both parties agree that additional paid medical leave would not have had any impact on plaintiff’s ability to perform 23 the essential functions of his job, albeit for different reasons. Plaintiff argues that it would have made no difference for 24 Darigold to extend his leave as a reasonable accommodation because he was able and willing to return to work as a Butter 25 Churn Operator. (See Pl.’s Resp. to Def.’s Mot. for Summ. J. at 16–17 (Docket No. 40).) Defendant argues that it did not extend 26 plaintiff’s paid medical leave because his physical restrictions 27 were permanent and would only worsen over time and because his health care providers could not safely revise or reduce his 28 restrictions. (See Def.’s Mot. for Summ. J. at 15.) 1 (internal citation omitted). After considering the evidence 2 presented by both parties, the court concludes that there is a 3 genuine issue of material fact as to whether Darigold engaged in 4 the interactive process in good faith to determine whether a 5 reasonable accommodation could be identified for plaintiff. The 6 court will therefore deny summary judgment on this issue. 7 IV. Motions to Seal 8 Defendant requests that the court seal Exhibits 2-5, 8, 9 10, 12-15, 17-18, 21-22, and 28 to the Jones Declaration. (See 10 Def.’s Mot. to Seal.) Plaintiff requests that the court seal 11 Exhibits D, E, and K to the Declaration of Jeremiah Hudson in 12 Support of Plaintiff’s Motion for Partial Summary Judgment, 13 (“Hudson Decl.”) (Docket No. 37-3), and Ex. B to the Supplemental 14 Declaration of Jeremiah Hudson in Support of Plaintiff’s Response 15 to Defendant’s Motion for Summary Judgment, (“Supp. Hudson 16 Decl.”) (Docket No. 40-1.). (See Pl.’s Mot. to Seal.) Defendant 17 does not oppose plaintiff’s motion to seal. (See Docket No. 44.) 18 A party seeking to seal a judicial record bears the 19 burden of overcoming a strong presumption in favor of public 20 access. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 21 1178 (9th Cir. 2006). The party must “articulate compelling 22 reasons supported by specific factual findings that outweigh the 23 general history of access and the public policies favoring 24 disclosure, such as the public interest in understanding the 25 judicial process.” Id. at 1178-79 (citation omitted). In ruling 26 on a motion to seal, the court must balance the competing 27 interests of the public and the party seeking to keep records 28 secret. Id. at 1179. 1 Defendant and plaintiff seek to file under seal certain 2 documents that are subject to their stipulated protective order 3 and have been designated by the defendant as “confidential” and 4 “documents referring or related to confidential and proprietary 5 business information; . . . or confidential policies, procedures 6 or training materials of defendant.” (See Def.’s Mot. to Seal at 7 2.; Pl.’s Mot. to Seal at 1.) Within this category are Exhibits 8 D and K to the Hudson Declaration which consist of Darigold’s 9 disability accommodations and policies. These policies are key 10 pieces of evidence in this case that are relied on by both 11 parties, and the court cannot conclude that they contain 12 confidential and proprietary business information which outweigh 13 the public policies favoring disclosure. See Kamakana, 447 F.3d 14 at 1178. 15 The parties also seek to seal several documents because 16 they allegedly “contain confidential and proprietary business 17 information” regarding Darigold’s butter churn operations that 18 “could harm its competitive and business interests if widely 19 disclosed to the public.” (See Def.’s Mot. to Seal at 2.) The 20 documents that the parties have identified as falling within this 21 category are Exhibit E to the Hudson Declaration, Exhibits 10 and 22 14 to the Jones Declaration, and Exhibit B to the Supplemental 23 Hudson Declaration. Exhibit 10 contains defendant’s Standard 24 Operating Procedures for “Churn 1 Setup from Lactic to Unsalted 25 or Salted Butter”. The other exhibits, which appear identical, 26 consist of a series of photographs of defendant’s butter churn 27 equipment setup and employees following various steps of 28 defendant’s processes to produce butter. Based on the 1 information provided, the parties have failed to demonstrate 2 compelling reasons to seal the exhibits at issue in their 3 entirety. Further, sealing this information may prevent the 4 public from understanding the basis upon which the court makes 5 its decisions, and the parties fail to explain how the harm 6 outweighs public policies favoring disclosure. See Kamakana, 447 7 F.3d at 1178–79. 8 Defendant additionally argues that Exhibits 2-5, 8, 12- 9 13, 15, 17-18, 21-22, and 28 of the Jones Declaration should be 10 sealed because they contain plaintiff’s medical records and 11 sensitive health information. (See Def.’s Mot. to Seal at 2.) 12 However, plaintiff did not designate these files as confidential, 13 nor has plaintiff responded to or joined the request to seal. 14 Moreover, plaintiff’s briefing and exhibits included in their 15 motion for summary judgment and opposition contain no requests to 16 seal or redactions despite disclosing what might otherwise be 17 protected health information. In other words, plaintiff appears 18 to have no objection to the disclosure of the information 19 defendant seeks to seal, which consists of plaintiff’s own health 20 information. Moreover, many of the documents that defendant 21 seeks to seal under the rationale of protecting plaintiff’s 22 confidential health information do not appear to contain any 23 confidential health information. (See Jones Decl. at Exs. 22, 24 28.) 25 Under these circumstances, neither party has 26 articulated compelling reasons to overcome the strong presumption 27 in favor of public access. See Kamakana, 447 F.3d at 1178. 28 However, the court notes that there is some personal information 1 in the exhibits, such as plaintiff’s address, phone number, and 2 medical record numbers, which may merit protection. 3 IT IS THEREFORE ORDERED that defendant’s Motion for 4 Summary Judgment (Docket No. 34), be and hereby is, GRANTED on 5 | plaintiff’s second claim that defendant violated the ADA and IHRA 6 | by requiring him to undergo two medical examinations. 7 Defendant’s Motion for Summary Judgment is DENIED in all other 8 respects. Plaintiff’s Motion for Partial Summary Judgment (Docket 9 No. 37), is DENIED in its entirety. 10 IT IS FURTHER ORDERED that defendant’s Motion to File 11 Documents under Seal (Docket No. 35) and plaintiff’s Motion to 12 File Documents under Seal (Docket No. 38) be, and the same hereby 13 are, DENIED WITHOUT PREJUDICE. Within ten days from the date of 14 this Order, the parties shall each file a revised request to seal 15 which complies with Idaho Local Rule 5.3 and Kamakana, 447 F.3d 16 at 1178. The court may also consider a more tailored request, 17 such as redacting portions of the Standard Operating Procedures 18 or photographs that allegedly contain confidential and 19 | proprietary business information, if such a request protects the 20 | public’s interest in disclosure without disclosing defendant's 21 confidential and proprietary business information. 22 | Dated: August 11, 2021 lg ak. 2 23 WILLIAM B. SHUBB DA UNITED STATES DISTRICT JUDGE 25 26 27 28 36