Wickware v. Johns Manville
676 F. App'x 753
10th Cir.2017Background
- Wickware, a long‑time Johns Manville employee, had documented left‑knee limitations (lifting 20–50 lbs occasionally; limited squatting/kneeling/climbing; max four 12‑hour days/week). Employer recorded restrictions and entered restricted‑duty agreements in 2010 and 2011.
- Johns Manville revised a Pay for Skills wage program in 2011 requiring a relief foreman to be “qualified in all lower operator levels” (five operator positions). Plant manager Dodi asked Wickware to identify which tasks he could perform; ergonomist and company‑retained doctors assessed job tasks.
- Company concluded Wickware could perform only two operator jobs (forklift and coater with accommodation) and reassigned him to Operator Level Two rather than Relief Foreman, reducing title/pay.
- Wickware filed an EEOC charge alleging disability discrimination (May 2012); later attempted to add a retaliation claim but missed the investigator’s 10‑day request for an affidavit and filed an amended charge after the EEOC issued a right‑to‑sue on the original charge.
- District court granted summary judgment for Johns Manville on discrimination (Wickware not a ‘‘qualified individual’’ for relief foreman and proposed accommodation unreasonable), dismissed retaliation for failure to exhaust, and denied late evidence and discovery relief; Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether being able to perform all operator positions was an essential function of Relief Foreman | Wickware: Relief Foreman only needs to be “qualified” for operator positions; prior title and other affidavits create factual dispute | Johns Manville: Written job description and manager testimony show ability to perform all operator positions is essential | Held: Essential function; employer’s written description and testimony persuasive; Wickware conceded he could not perform all positions |
| Whether Wickware was a "qualified individual" with or without reasonable accommodation | Wickware: Could perform Relief Foreman with accommodation (reassigning individual tasks to others) | Johns Manville: Proposed accommodation would eliminate an essential function (performing all operators) and is facially unreasonable | Held: Accommodation unreasonable because it would remove an essential job function; plaintiff failed to propose a facially reasonable accommodation |
| Whether the retaliation claim was exhausted administratively | Wickware: Amended EEOC charge (filed Jan 31) and right‑to‑sue notice suffice to bring retaliation claim | Johns Manville: No timely amendment or new charge alleging retaliation; EEOC notice related only to original disability claim | Held: Retaliation claim not exhausted/timely amended; dismissal affirmed |
| Whether summary judgment was premature because district court granted it before resolving Wickware’s motion to compel discovery | Wickware: Needed discovery and depositions to oppose summary judgment | Johns Manville: Plaintiff did not invoke Rule 56(d) or show diligence; court had adequate record | Held: No abuse of discretion; plaintiff did not file Rule 56(d) affidavit or justify delay |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (framework for disparate‑treatment burden shifting)
- Wells v. Shalala, 228 F.3d 1137 (10th Cir. 2000) (two‑step ADA qualified‑individual/ accommodation inquiry)
- Hennagir v. Utah Dept. of Corrections, 587 F.3d 1255 (10th Cir. 2009) (deference to employer on essential functions; accommodation cannot remove essential function)
- Gad v. Kansas State Univ., 787 F.3d 1032 (10th Cir. 2015) (exhaustion/EEOC verification discussion and condition‑precedent vs. jurisdictional analysis)
- Jones v. U.P.S., 502 F.3d 1176 (10th Cir. 2007) (liberal construction of EEOC charge; exhaustion requirement)
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standards)
- Mathews v. Denver Post, 263 F.3d 1164 (10th Cir. 2001) (employer not required to eliminate or modify essential job functions as accommodation)