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Sharbono v. Northern States Power Co.

United States District Court, D. Minnesota

November 18, 2016

James Sharbono, Plaintiff,
Northern States Power Company, d/b/a Xcel Energy, Inc., Defendant.

          Jenny M. Helling, John A. Fabian, Fabian May & Anderson, PLLP, Minneapolis, Minnesota, for Plaintiff.

          Britt M. Gilbertson, Emily M. Peterson, Gregory J. Stenmoe, Briggs and Morgan, P.A., Minneapolis, Minnesota, for Defendant.


          RICHARD H. KYLE United States District Judge


         In this action, Plaintiff James Sharbono alleges that his former employer, Defendant Northern States Power Company d/b/a Xcel Energy (“NSP”), discriminated and retaliated against him when it terminated his employment on account of his disability, in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Minnesota Human Rights Act (“MHRA”), Minn. Stat. § 363A.01 et seq. Presently before the Court is NSP's Motion for Summary Judgment.[1] For the reasons that follow, the Motion will be granted.


         Viewed in the light most favorable to Sharbono, the record reveals the following facts, most of which are undisputed.[2]

         I. Sharbono's background and 1991 injury

         In 1989, Sharbono began working as an electrical lineman, a position in which he built and maintained underground and overhead powerlines. (Sharbono Dep. at 13-15.) The job was rigorous and required, among other things, lifting and carrying electrical equipment, operating heavy machinery, and digging and shoveling for powerline construction. (Id. at 50-52, 57-58.) The job also posed risks, including possible electrocution. (Id. at 52-54.)

         Sharbono experienced that risk firsthand in 1991 while working for a construction company. In June of that year, one of his co-workers electrified a line on which he had been working, sending 7, 200 volts of electricity into his body through his right shoulder and out his left foot. (Id. at 17-19.) The incident resulted in the loss of his two smallest toes, and half the middle toe, on his left foot; numerous skin grafts were required to repair the damage. (Id. at 20-22.) Despite the incident and his injuries, Sharbono continued working as a lineman, moving to NSP in 1993. At the time he was hired, he informed 579 (1993). Because the Court concludes summary judgment is appropriate, it need not and does not reach those Motions. NSP about his foot and advised that he was unable to wear a steel-toed safety boot as a result. (Id. at 49-50, 77-79.)

         From 1993 to 2008, Sharbono successfully worked as a lineman for NSP without wearing safety boots, even though company policy generally required linemen to wear such footwear. (See Sharbono Decl. Ex. 1.)[3] In fact, in October 2000, Sharbono's supervisor signed a footwear purchase authorization form on which he expressly provided, “No steel toe required for medical reasons” (Helling Decl. Ex. 33), although in his deposition Sharbono could not specifically recall asking for an accommodation (Sharbono Dep. at 80-81).

         II. NSP enacts a new protective-equipment policy

         In 2008, NSP created a new policy requiring employees to wear personal protective equipment (“PPE”) “when working in areas where there is a danger of foot injuries due to falling or rolling objects, construction activities, when objects can pierce the sole and puncture the foot, or when employees' feet are exposed to electrical hazards.” (Wilhelm Decl. Ex. 3.) The PPE policy specifically provided that safety-toed footwear was to be worn “to protect against impact, compression, puncture and electrical hazards” and “shall be marked with ASTM F2413, ” an international standard for protective footwear. (Id.)[4] Indeed, a regulation promulgated by the Occupational Safety and Health Administration (“OSHA”) requires employers to “ensure that each . . . employee uses protective footwear when working in areas where there is a danger of foot injuries [or the] employee's feet are exposed to electrical hazards, ” and the footwear “must comply” with the ASTM standard. 29 C.F.R. § 1910.136. The regulation, however, does not require that safety-toed footwear be marked as ASTM compliant.

         In February 2008, Sharbono's supervisor, Dan Foreman, discussed the new PPE policy during a meeting. (Sharbono Dep. at 85-86.) Sharbono informed Foreman that he was not required to wear a steel-toed boot; Foreman, in turn, discussed the matter with his supervisor, John Stumph. Sharbono provided Foreman with a note from his podiatrist, Dr. David Schleichert, indicating that he should not wear steel-toed footwear “due to an increased risk of a cold injury or abrasions from the steel cup in the shoes” (Wilhelm Decl. Ex. 4), but it was decided that Sharbono would not be exempted from the PPE policy and would be required to wear safety-toed boots. (Foreman Dep. at 11-14; Sharbono Dep. at 86, 91-92; Sharbono Decl. Ex 2.)[5]

         III. Sharbono has difficulty with steel-toed footwear and seeks alternatives

         On March 3, 2008, Foreman provided Betty Post, NSP's Manager of Disability Solutions, a note he had received from Dr. Schleichert dated February 26, 2008. (Helling Decl. Ex. 3.) The note indicated that Sharbono had “developed wounds on his left foot since wearing safety toed shoes [for] 1 week, ” and it “recommended [that he] go back to previous boot that ha[d] not been a problem for him.” (Id.) When passing along this note, Foreman highlighted for Post the portion of NSP's pre-2008 policy that permitted exceptions for an employee submitting a doctor's note “stating he/she cannot wear safety toe footwear.” (Id.)

         In her deposition, Post could not recall doing anything with this information, but the following day, Karyn Davis, an NSP “corporate safety consultant, ” spoke with Sharbono to discuss ideas that would address his concerns with steel-toed boots. (Sharbono Dep. at 92-93.) She memorialized their conversation in a follow-up email, which included a recommendation that Sharbono try wearing “Smart Wool socks to reduce the abrasion[s]” on his foot. (Wilhelm Decl. Ex. 5.) In addition, Davis advised that she had spoken with an individual named Brad from Tingley Rubber Boot Company (“Tingley”), who had lost four toes in a landscaping accident. She relayed his suggestion that Sharbono try using Tingley's steel-toed “overshoes, ” for which he provided a free sample; the overshoes which were “ASTM F2413 approved and . . . designed to fit over your current footwear.” (Id.) As an alternative, Davis recommended that Sharbono look into steel-toed footwear manufactured by “Georgia Giant, ” which had a “deeper toe box, ” and that he speak with his physician about wearing diabetic socks, which are “designed to increase blood flow.” (Id.) Sharbono tried the Smart Wool socks and Tingley overshoes but determined they did not solve the problem, and he eventually discontinued them. (Sharbono Dep. at 93-97.)

         On March 4, 2008, Sharbono visited Great Steps Prosthetics and Orthotics (“Great Steps”) to discuss the possibility of creating a custom boot for his left foot. (Sharbono Dep. at 116-18; Wilhelm Decl. Ex. 9.) He explained the situation and inquired what Great Steps could do to “modify[]ASTM certified” shoes. (Wilhelm Decl. Ex. 9.) Great Steps advised that it “cannot do this” because such a shoe would “lose the ASTM certification.” (Id.) It also advised that it could not make a custom boot or shoe, as “this would also not meet the ASTM qualifications.” (Id.)

         IV. Sharbono takes medical leave

         On March 5, 2008, Sharbono saw his physician, Dr. Patrick Zook, complaining of injury from the steel-toed boots he had been wearing. (Helling Decl. Ex. 35.) He explained that NSP had accommodated his foot injury for 14 years by allowing him not to wear safety footwear, but his “supervisor recently insisted that the boots be worn despite concerns raised by both [him] and the recommendations of [his] doctors.” (Id.) He further explained that he had begun to wear the boots on February 19 and they had “caused injury” to his left foot “due to the problems and repeated exposure to the cup portion of the boot.” (Id.) Dr. Zook “removed” Sharbono from work, with an anticipated return-to-work date in “1-2 weeks.” (Id.)

         On April 1, 2008, Dr. Zook authorized Sharbono to return to work part-time for a one-week period, after which he would be cleared to return to work full-time. (Wilhelm Decl. Ex. 6.) In a letter dated two days later, Dr. Schleichert explained safety-footwear options he had been discussing with Sharbono. (Id. Ex. 7; see also Sharbono Dep. at 107-09.) Those options included a custom-made boot, a boot with a modified toe, and a boot with its sole stiffened. (Wilhelm Decl. Ex. 7.) Dr. Schleichert rejected the first two options because the resulting boot would be “NON-ASTM certified, ” and NSP “requires ASTM certification.” (Id.) The third option was rejected because a stiffened sole “would put [Sharbono] at significant risk for knee, hip, and back injury due to the alteration of his gait” and would negatively affect his mobility, thereby increasing the risk of tripping. (Id.) Dr. Schleichert once again opined that “it is not appropriate for [Sharbono] to wear a safety toed boot on his left foot and reasonable accommodation of this condition should [b]e made as it has been up to this point.” (Id.) It is unclear who, if anyone, at NSP received this letter; the addressee was simply, “to whom it may concern.” Regardless, the company arranged for Sharbono to meet with Dr. Thomas Jetzer on April 7, 2008, to perform a fitness-for-duty evaluation. (Helling Decl. Ex. 37; Sharbono Dep. at 110.) Dr. Jetzer observed the abrasions on Sharbono's left foot and believed that Sharbono “may need to get a custom boot” or, alternatively, might have to wear a steel-toed boot only on his right foot. (Helling Decl. Ex. 37.) The latter option “could leave him [susceptible] to some potential damage on the left foot, ” although he recognized it “may be less of a risk than causing abrasions and breakdown of the skin grafts.” (Id.) Dr. Jetzer stopped short of making a final recommendation, noting he might “require some discussion with some of the orthopedic footwear specialists.” (Id.)

         Two days later, Dr. Jetzer sent a copy of his evaluation to Post at NSP. (Wilhelm Decl. Ex. 8.) The cover letter sent along with the evaluation indicated that Dr. Jetzer believed the “best solution” was to provide a “custom designed shoe [] covering his left big toe.” (Id.) Although he opined this “could be done by a custom boot maker, ” the letter contains no indication whether he believed a custom boot could in fact be ASTM certified. (Id.)

         V. Sharbono explores footwear options

         According to Sharbono, at some point in 2008, Great Steps advised him that it could, in fact, custom manufacture boots meeting the ASTM specifications, but which would not be “stamped” as ASTM compliant. (Sharbono Dep. at 116.) He relayed that information to Steve Christianson at NSP, [6] who instructed Sharbono to have the boots made. (Id. at 118; see also Wilhelm Decl. Ex. 9 (“Jim has been approved for custom fabricated boots and we found a manufacturer . . . willing to do the modifications requested to the steel toe.”).) Sharbono had a cast of his foot made, which was reviewed and approved for construction into a boot by Dr. Jetzer. (Helling Decl. Ex. 5.) The total cost was $1, 600; NSP paid $200 and Sharbono's workers' compensation insurer paid the rest. (Id.) But when the boots arrived several months later, NSP informed Sharbono that he could not wear them, for reasons not clear from the record. (Sharbono Dep. at 125.)[7]

         Instead, NSP arranged for Sharbono to meet with another orthotist, Louis Winskowski, of an entity called “Foot Support.” (Sharbono Dep. at 126; Wilhelm Decl. Ex. 10.) Winskowski aided Sharbono in selecting several different models of steel-toed, ASTM-compliant boots that might work for his foot, and Sharbono ultimately obtained a model manufactured by Red Wing Shoes. (Sharbono Dep. at 127.) Winskowski advised that Sharbono should wrap his feet in gauze and tape and wear the Red Wing boots at home for a week prior to using them at NSP. (Sharbono Dep. at 128; Wilhelm Decl. Ex. 10.) Sharbono later wore the Red Wing Boots with gauze at NSP for several weeks, or perhaps months, but stopped using the gauze because it was causing irritation to his foot. (Sharbono Dep. at 129.)

         VI. Sharbono uses steel-toed boots and then goes on extended leave

         Sharbono wore the Red Wing steel-toed boots without gauze for the next three years while working at NSP. The pain and other symptoms he experienced from wearing the boot on his left foot - foot pain, shoulder pain, twitching, headaches, all of which he ascribes to using the boots - worsened over that time. (Sharbono Dep. 23, 134.) After Brenda McDermott replaced Foreman as his supervisor in February 2011, Sharbono began taking increasing amounts of time off of work due to his exacerbating symptoms. (Helling Decl. Ex. 6; Sharbono Dep. at 134, 146.) McDermott eventually met with him in October 2011 to discuss his time off; she suggested he explore applying for leave under the Family and Medical Leave Act (“FMLA”). (Helling Decl. Ex. 6; Sharbono Dep. at 149.) Sharbono took that advice and applied for intermittent FMLA leave in November 2011, in order to attend medical appointments or if he was “hurting, too much pain to work.” (Sharbono Dep. at 151.) His request was approved. (Id. at 152.)

         On April 12, 2012, McDermott met with Sharbono to discuss when he could leave for medical appointments during the workday. (Sharbono Dep. at 167-68; Wilhelm Decl. Ex. 11.) At that meeting, Sharbono requested that he not have to wear protective-toe footwear, and he asked for a response to his request in writing. (Wilhelm Decl. Ex. 11.) McDermott replied that such a response would have to come from someone “higher up” at NSP. (Id.) The record is unclear what, if anything, McDermott did in response to Sharbono's request.[8]

         Regardless, on May 11, 2012, Sharbono began a lengthy FMLA leave, lasting until March 2013. He exhausted the legally mandated 12 weeks of leave in June 2012, [9]but NSP permitted him to remain on FMLA leave through March 2013, paying him the entire time. (Sharbono Dep. at 186-87.)

         Meanwhile, on June 6, 2012, Sharbono saw his neurologist, Dr. Kathleen Rieke, complaining of “progressive worsening” of his condition due to “the rubbing of the protective toe footwear.” (Wilhelm Decl. Ex. 12.) That same day, Dr. Rieke wrote McDermott and Kathy Gilman, an NSP “workforce relations consultant, ” advising that “[d]ue to the exacerbation of neuropathic pain associated with his foot injury, it is the opinion of [Sharbono's] medical team . . . [that] it is medically necessary [for] him to discontinue use of his safety toed footwear. This is exacerbating the pain and worsening his disability.” (Helling Decl. Ex. 10.) Also on June 6, Sharbono submitted a workers' compensation “injury/illness report, ” asserting June 6, 2012, as the “date of injury” and identifying a number of work restrictions, with no end date. (Id.) Several weeks later, Sharbono's union submitted to NSP a letter “requesting a waiver for protective footwear.” (Wilhelm Decl. Ex. 14.) The letter provided that “safety boot wear (both standard boots and modified boots) exacerbates his injured foot and should not be worn ever again.” (Id.)

         VII. NSP proposes disability retirement

         NSP responded to these submissions on August 1, 2012, in a conference call including McDermott, Gilman, Sharbono, and his union representative, Shawn Daly. (Helling Decl. Ex. 12.) Daly explained that the union had not received an answer to its June 2012 letter seeking a waiver of the PPE policy's protective-footwear mandate, and Gilman replied that a waiver would not be granted. (Id.) McDermott's notes from the call indicate there was some discussion of the possibility of light-duty work for Sharbono, which would not have required safety boots, although ultimately that option was not offered to him. (Id.)[10] As Sharbono had exhausted his FMLA leave and could not continue on paid sick leave indefinitely, Gilman explained that he could elect a disability retirement under his union's collective-bargaining agreement. (Id.; see also McDermott Decl. ¶ 4.) A short time later, she formally denied Sharbono's waiver request in writing, advising that “this same request . . . has been denied in the past” and that NSP “cannot issue a waiver because [it] cannot eliminate the potential foot hazards that are present in the daily work of a lineman. Indeed, granting this waiver would be a violation of [NSP] policy and a violation of OSHA standard 1910.136.” (Helling Decl. Ex. 13.)

         In October 2012, Sharbono, his wife, and Daly met with Gilman, McDermott, and Carin Coomer-Kyllo, an NSP “Disability Solutions Specialist.” (McDermott Dep. at 81; Helling Decl. Exs. 11, 16.) Gilman offered Sharbono two options at that meeting: a 90-day search for another position at NSP, or disability retirement as previously discussed. (Helling Decl. Ex. 11.) Gilman made clear, however, that there were no guarantees the job search would yield another position, and even if it did, she could not guarantee it would be a union job. She also advised that if Sharbono took a non-union job, he would no longer be eligible for disability retirement. (McDermott Dep. at 86-87, 150-55; Sharbono Dep. at 206-10; Gilman Dep. at 26-28.) According to Sharbono, Gilman recommended that he retire, rather than run the risk of losing union benefits. (Sharbono Dep. at 207-08.) Sharbono claims he felt no choice but to accept disability retirement, and he ...

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