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White v. Town of Hurley

United States District Court, D. New Mexico

March 28, 2019

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

          Jim Foy Jim Foy & Associates Silver City, New Mexico Attorneys for the Plaintiff

          Matthew Bullock Mark D. Jarmie Mark D. Standridge Jarmie & Associates Las Cruces, New Mexico Attorneys for the Defendant

          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 Daubert [1]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 requested indefinite 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 as to: (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 Plaintiffs 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 driving recklessly, quite frankly, since Santa Clara.” MSJ Response ¶ 16, at 3 (citing White Aff. ¶ 13, at 2). See MSJ Reply at 2 (admitting this fact).[8] To avoid colliding with Chavez, White laid his bike on its side and “both the bike and Mr. White skidded upon the pavement for over one-hundred feet.” MSJ Response ¶ 17, at 3 (asserting this fact)(citing White Aff ¶ 14, at 2). See MSJ Reply at 2 (admitting this fact). White was not wearing his helmet at the time of the accident, see MSJ ¶ 4, at 1 (asserting this fact)(citing April 30 Letter; White Depo. at 26:19-23; id at 27:7-13), [9] and the skidding caused White severe trauma to his head and face, see MSJ Response ¶ 17, at 3 (asserting this fact)(citing White Aff. ¶¶ 14, 16, at 2; id ¶ 19, at 3); MSJ Reply at 2 (admitting this fact). Chavez caused the accident, and, although he fled the scene, he was later charged with multiple felonies, including leaving the accident's scene. See MSJ Response ¶¶ 20-21, at 4 (asserting these facts)(citing White Aff. ¶¶ 17-18, at 2-3); MSJ Reply at 2 (admitting these facts).

         A helicopter carried White to the University Medical Center of El Paso, Texas. See MSJ Response ¶ 18, at 3-4 (asserting this fact)(citing White Aff. ¶ 15, at 3); MSJ Reply at 2 (admitting this fact). At University Medical, surgeons removed part of White's skull to allow “his brain [to] swell unobstructed” and performed “numerous face reconstruction surgeries.” MSJ Response ¶ 22, at 4 (asserting this fact)(citing White Aff. ¶ 19, at 3). See MSJ Reply at 2 (admitting this fact). Without the skull surgery, White would have died. See MSJ Response ¶ 22, at 4 (asserting this fact)(citing White Aff. ¶ 19, at 3); MSJ Reply at 2 (admitting this fact). White remained hospitalized at University Medical from July 23, 2014, to August 11, 2014. See MSJ Response ¶ 23, at 4 (asserting this fact)(citing White Aff. ¶ 20, at 3); MSJ Reply at 2 (admitting this fact). From there, White transferred to the Rehabilitation Hospital of Southern New Mexico, where he remained until August 25, 2015, “when he was released to his home.” MSJ Response ¶ 24, at 4 (asserting this fact)(citing White Aff ¶ 21, at 3). See MSJ Reply at 2 (admitting this fact).

         White underwent a year of hospitals, rehabilitations, and skull surgeries, and his brain injury will last and affect him, including his emotions, for the rest of his life. See MSJ ¶ 5, at 1-2 (asserting this fact)(citing White Depo. 27:24-28:2; id at 63:12-64:16).[10] From July 23, 2014 to September 20, 2015, White continued to live without the portion of his skull “to allow his brain to heal” and to reduce to its normal size. MSJ Response ¶ 25, at 5 (asserting this fact)(citing White Aff. ¶ 22, at 3). See MSJ Reply at 2 (admitting this fact). During his recovery, White could not work at HPD. See MSJ Response ¶ 26, at 5 (asserting this fact)(citing White Aff. ¶ 23, at 3); Reply at 2 (admitting this fact). White could have returned to work after receiving an artificial skull and a release, and White was released around October 20, 2015. See MSJ Response ¶¶ 26-27, at 5 (asserting these facts)(citing White Aff. ¶¶ 23-24, at 3).[11] The injury's effects are apparent in White's emotions and temper. See MSJ ¶ 5, at 1-2 (asserting this fact)(citing White Depo. at 63:12-64:16).[12]

         White did not correspond with HPD from July 23, 2014, to September 11, 2014, and HPD did not assert that “White abandoned his position” during that time. MSJ Response ¶ 28, at 5 (asserting this fact)(citing White Aff. ¶ 25, at 3).[13] After White exhausted his sick and vacation leave, he requested that Ordonez place him on leave without pay for a year and a day, “pursuant to the Family Medical Leave Act [(5 U.S.C. §§ 6381-98; 29 U.S.C. §§ 2601, 2611-19, 2631-36, 2651-54 (“FMLA”)] and/or any other applicable Town of Hurley Employment policy.” MSJ ¶ 6, at 2 (asserting this fact)(quoting Letter from Jim Foy to Chief Peter Ordonez (dated September 11, 2014), filed September 26, 2017 (Doc. 1-1)(“Sept. 11 Letter”)).[14] In the Sept. 11 Letter, White stated that he had suffered a “significant injury to his brain, ” and that he would “be unable to adequately function as a Hurley Police Officer for at least one year and one day, if ever, ” and that he “faced a ‘period of long and protracted recovery.'” MSJ ¶ 7, at 2 (asserting this fact)(emphasis in MSJ)(quoting Sept. 11 Letter at 1). See MSJ Response ¶ 29, at 5 (also asserting this fact).[15]White offered to provide updates on his medical condition, but the Town of Hurley never requested updates. See MSJ Response ¶ 29, at 5-6 (asserting this fact)(citing White Aff ¶ 26, at 4; Sept. 11 Letter); MSJ Reply at 2 (admitting this fact).

         “The Town of Hurley's policy permitted the Town Council to approve requests for unpaid leave.” MSJ ¶ 8, at 2 (asserting this fact)(citing Town of Hurley Personnel Policy 7.3, at 2, filed September 26, 2017 (Doc. 1-5)(“Hurley Policy”)).[16] Under the Hurley Policy, an employee can “state the specific reasons for the request, the date to begin the leave, and the date of proposed return.” MSJ ¶ 8, at 2 (asserting this fact)(citing Hurley Policy 7.3, at 2).[17] Concluding that granting White's request was in its best interests, the Town Council approved White's request at a Town Council meeting, which the mayor attended, and granted him retroactive leave without pay, dating to August 7, 2014, when White had exhausted his sick and vacation leave. See MSJ ¶ 9, at 2 (asserting this fact)(citing Letter from Pete Ordonez to Jim Foy (sent October 22, 2014), filed September 26, 2017 (Doc. 1-2)(“Oct. 22 Letter”); Town of Hurley Regular Meeting ¶ 14, at 2 (dated October 14, 2014), filed August 31, 2018 (Doc. 33-2)(“Town Hall Minutes”); White Depo. at 34:2-7). See MSJ Response ¶ 30, at 6 (also asserting this fact).[18] The Town of Hurley did not request a medical update from White. See MSJ Response ¶ 30, at 6 (asserting this fact)(citing White Aff ¶ 27, at 4); MSJ Reply at 4 (admitting this fact).

         After receiving leave for his disability, White waited for his brain to return to its normal size so that he could receive an artificial skull. See MSJ Response ¶ 32, at 6 (asserting this fact)(citing White Aff. ¶ 29, at 4); MSJ Reply at 2 (admitting this fact).[19] White's brain remained larger than ordinary until April, 2015. See MSJ Response ¶ 31, at 6 (asserting this fact)(citing White Aff. ¶ 28); MSJ Reply at 2 (admitting this fact). After he received a CT scan[20] that permitted the medical experts to construct a pre-made Porex plate[21] to replace the missing part of his skull, White scheduled surgery to receive his artificial skull for September, 2015. See MSJ Response ¶ 31, at 2 (asserting this fact)(White Aff. ¶ 28, at 4); MSJ Reply at 2 (admitting this fact).

         Before August 3, 2015, White informed Ordonez that he was waiting for his artificial skull and for surgery, and that he did not know how much time he would require to recover. See MSJ ¶ 10, at 2 (asserting this fact)(citing White Depo. at 36:4-15; id at 37:1-13; id at 68:25-69:10; id at 70:13-24).[22] On August 3, 2015, “Chief Ordonez was specifically told that Mr. White's skull plate had been measured but was not designed and ready for placement.” MSJ Response ¶ 33, at 6-7 (asserting this fact)(citing Letter from Jim Foy to Peter Ordonez at 1 (dated August 3, 2015), filed September 26, 2017 (Doc. 1-3)(“Aug. 3 Letter”); White Aff. ¶30, at 5); MSJ Reply at 2 (admitting this fact). White requested, “pursuant to the [FMLA] and/or any other applicable Town of Hurley employment policy, ” that the Town of Hurley permit him to “continue his employment status as ‘on leave without pay' for at least the next six months.” MSJ ¶ 11, at 3 (emphasis in MSJ)(asserting this fact)(quoting Aug. 3 Letter at 1).[23] White informed the Town of Hurley that he would “not be in a position to be evaluated for return as a police officer for at least another six months and possibly nine months given the pace of the current progress of this case, ” and would “be unable to adequately function as a Hurley Police Officer for at least an additional six to nine months, if ever.” MSJ ¶ 12, at 3 (emphasis in MSJ)(asserting this fact)(citing Aug. 3 Letter at 1).[24]The Town of Hurley did not request any medical updates. See MSJ Response ¶ 33, at 7 (asserting this fact)(citing White Aff ¶ 30, at 5); MSJ Reply at 2 (admitting this fact).

         During White's absence, “the Town of Hurley was short two police officers.” MSJ ¶ 13, at 3 (asserting this fact)(citing White Depo. at 40:4-11; Deposition of Peter Ordonez at 13:2-7 (taken May 1, 2018), filed August 31, 2018 (Doc. 33-3)(“Ordonez Depo.”)).[25] HPD officers' positions are safety-sensitive, and Town of Hurley needs HPD officers who can be on duty to respond to calls and who can cover the town's geographical area. See MSJ ¶ 14, at 3 (asserting this fact)(citing White Depo. at 40:13-17; id. at 66:23-67:16; id. at 69:14-17).[26] On August 5, 2018, Ordonez denied White's request for continued leave. See MSJ ¶ 15, at 3 (asserting this fact)(citing Letter from Pete Ordonez to Jim Foy at 1 (sent August 5, 2015), filed September 26, 2017 (Doc. 1-4)(“Aug. 5 Letter”); Ordonez Depo. at 9:3-10:8; id. at 11:16-22).[27] Ordonez stated that, “if plaintiff did not return to work on August 8, 2015, ” his failure to appear “would be ‘deemed as a voluntary resignation.'” MSJ ¶ 16, at 4 (asserting this fact)(citing Aug. 5 Letter at 1; Ordonez Depo. at 14:20-15:4).[28] The Hurley Policy provided that the Town of Hurley could approve leave without pay for over two weeks. See MSJ Response ¶ 34, at 7 (asserting this fact)(citing Hurley Policy 7.3(a), at 2).[29] The mayor permitted Ordonez alone to decide whether to extend White's leave, and the Town Council did not have a role in the decision. See MSJ Response ¶ 35, at 7 (asserting this fact)(citing Ordonez Dep. at 9:9-10:4; id at 11:1; Hurley Policy 7.3(a); Aug. 5 Letter at 1).[30]

         White did not obtain a doctor's note clearing him from duty as a police officer, did not request any position other than that of a police officer, and did not request light duty. See MSJ ¶ 17, at 4 (asserting this fact)(citing White Depo. at 40:23-41:11; id at 71:3-7; Ordonez Depo. at 13:19-25).[31] Ordonez “welcome[d]” White to apply for any positions that became available if he was medically able. See MSJ ¶ 18, at 4 (asserting this fact)(citing Aug. 5 Letter at 1).[32] The Town of Hurley and Ordonez did not investigate accommodating White, modifying their leave policy to accommodate White, or “whether a vacant position existed that could be held for Mr. White.” MSJ Response ¶ 47, at 10-11 (asserting this fact)(citing Ordonez Depo. ¶¶ 19-25, at 10-13; id ¶¶ 9-22, at 15; id ¶¶ 10-14, at 16).

         In April 2016, the Town of Hurley had an opening for an HPD officer, the job requirements of which included:

1) being “responsible for the accomplishment of the police mission on his beat, ” 2) “continuously patrol[ling] every part of his patrol area giving particular attention to and frequently rechecking locations where the crime hazard is great, ” 3) at night, “courteously, but firmly, question[ing] persons on the public streets” (emphasis supplied), 4) being able to “communicate effectively orally and in writing, ” and 5) having the “[a]bility to establish and maintain effective working relationships with subordinates, peers and supervisors.”

MSJ ¶ 19 at 4 (asserting this fact)(quoting Town of Hurley Police Department Patrol Officer, Duties and Responsibilities at 1-4, filed August 31, 2018 (Doc. 33-4)(“Patrol Officer Job Description”)).[33] White applied for this position. See MSJ ¶ 20, at 5 (asserting this fact)(citing White Depo. at 42:2-8).[34] Mayor pro tem Freddie Rodriguez; then-councilor, now-mayor, Ed Stevens; Code Enforcement employee Delilah Huerta; and acting-sergeant Mike Zamora interviewed candidates for the position. See MSJ ¶ 21, at 5 (asserting this fact)(citing Defendant's Answers, Responses, and Objections to Plaintiffs First Set of Interrogatories and Request for Production of Documents, Interrogatory No. 8 at 10, filed August 31, 2018 (Doc. 33-5)(“Defendant's Answers to First Interrogatories”)).[35] The committee asked candidates questions from a list that included generic inquiries about law enforcement. See MSJ ¶ 21, at 5 (asserting this fact)(citing White Depo. at 44:4-8).[36] The Town of Hurley was aware of White's injury. See MSJ ¶ 23, at 5 (asserting this fact)(citing Plaintiff s Answer to First Set of Interrogatories, Requests for Production and Requests for Admission, Interrogatory No. 4 at 2-3, filed August 31, 2018 (Doc. 33-6)(“Plaintiff s Answers to First Interrogatories”); Deposition of Delilah Huerta at 10:1-7 (taken May 1, 2018), filed August 31, 2018 (Doc. 33-7)(“Huerta Depo.”)).[37] All the interviewers knew of and understood White's injury. See MSJ ¶ 45, at 10 (asserting this fact)(citing Deposition of Freddie M. Rodriguez at 13:1-14 (taken May 1, 2018), filed August 31, 2018 (Doc. 33-8)(“Rodriguez Depo.”)).[38] Before the formal interview, an interviewer informally asked White about his treatment and “how [he] was doing.” MSJ ¶ 24, at 5 (asserting this fact)(citing White Depo. at 44:10-20).[39] During the interview, White “was angry and used profanities/curse words.” MSJ ¶ 25, at 5 (asserting this fact)(citing Huerta Depo. at 9:8-17; Rodriguez Depo. at 6:9-16; id. at 11:9-16; Deposition of Joseph Edward Stevens at 6:9-7:24; 9:13-16 (taken May 1, 2018), filed August 31, 2018 (Doc. 33-9)(“Stevens Depo.”)).[40] One interviewer gave White “low-to-mid range scores for his interview, ” and Huerta “wrote that plaintiff was a ‘hothead' even while giving plaintiff higher interview scores.” MSJ ¶ 25, at 5 (asserting this fact)(quoting Interview Scoring at 2, and citing Interview Scoring at 1-2; Huerta Depo. at 12:25-13:14).[41] Two of the three interview scoring sheets gave White all tens in a one to ten scale. See MSJ Response ¶ 44, at 10 (asserting this fact)(citing Interview Scoring); MSJ Reply at 2 (admitting this fact). In light of the interview and White's “attitude/anger, ” Stevens worried about White's ability to conduct one-on-one encounters with citizens and that White might not be able to fulfill the important duty of relating to citizens during such encounters. MSJ ¶ 26, at 6 (asserting this fact)(citing Stevens Depo. at 12:21-13:9; id. at 18:11-19:9).[42] The interview committee recommended a different candidate and, on April 28, 2016, the Town of Hurley hired that other candidate for the position. See MSJ ¶ 27, at 6 (asserting this fact)(citing Letter from Isaac Bauch to Don White (sent April 28, 2016), filed August 31, 2018 (Doc. 33-11)(“April 28 Letter”); Stevens Depo. at 12:21-13:9).[43]

         White applied again for a police position in January, 2018, when he applied for the Chief position. See MSJ Response ¶ 41, at 9 (asserting this fact)(citing White Aff. ¶ 39, at 5); MSJ Reply at 2 (admitting this fact). The Town of Hurley hired Jaime Serrano for the position. See MSJ Response ¶ 41, at 9 (asserting this fact)(citing White Aff. ¶ 39, at 6); MSJ Reply at 2 (admitting this fact). Since January, 2014, the Town of Hurley has had five chiefs of police, and at least ten people have rotated through the lieutenant, sergeant, and patrolman positions. See MSJ Response ¶ 42, at 10 (asserting this fact)(citing White Aff. ¶ 40, at 6); MSJ Reply at 2 (admitting this fact).

         After the Town of Hurley rejected White, his attorney wrote to the Town of Hurley to inform it that White had “filed a formal EEOC Discrimination complaint based upon his termination due to disability.” MSJ ¶ 28, at 6 (emphasis in MSJ)(asserting this fact)(quoting 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”)).[44] White, however, had completed an EEOC Intake Questionnaire only on April 28, 2016. See MSJ ¶ 28, at 6 (asserting this fact)(citing Equal Employment Opportunity Commission Intake Questionnaire at 3 (dated April 28, 2016), filed August 31, 2018 (Doc. 33-12)(“Intake Questionnaire”)).[45] On the Intake Questionnaire, White indicated that the basis for his disability claim was his disability, and he did not later amend or file another charge based on his age. See MSJ ¶ 28, at 6 (asserting this fact)(citing White Depo. at 51:9-19).[46] On July 8, 2015, White filed a Charge of Discrimination against the Town of Hurley, indicated as his bases for the discrimination “retaliation” and “disability, ” and alleged that the Town of Hurley discharged him when he requested a reasonable accommodation, and, consequently, that the Town of Hurley discriminated and retaliated against him based on his disability. See MSJ ¶ 30, at 6-7 (asserting this fact)(citing Charge of Discrimination at 1 (dated July 8, 2016), filed August 31, 2018 (Doc. 33-13)).[47] White did not indicate that the Town of Hurley discriminated against him because of his age and has not filed another discrimination charge. See MSJ ¶ 31, at 7 (asserting this fact)(citing White Depo. at 52:2-24; id. at 53:5-9).[48]White alleges that his request for additional unpaid leave was protected activity, see MSJ ¶ 32, at 7 (citing Plaintiff's First Answers to Interrogatories, Interrogatory No. 5, at 3; id. Interrogatory No. 9, at 4; White Depo. at 73:4-74:10; id. at 77:3-14), and was a request for a reasonable accommodation, MSJ ¶ 33, at 7 (Plaintiff's First Answers to Interrogatories, Interrogatory No. 7, at 3; id. Interrogatory No. 11 at 5; White Depo. at 76:13-19; id. at 77:15-24).[49]

         FINDINGS OF FACT

         The Court makes findings about Kleiner under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence. See Fed.R.Evid. 104(a).

         1. Kleiner has a Bachelor of Science in administration from Drexel University, and a Master of Business Administration and a PhD in management from the University of California, Los Angeles, and is a professor at California State University. See Draft Transcript of Hearing at 4:17-5:4 (taken January 15, 2019)(Kleiner, Foy)(“Jan. 15 Tr.”).[50]

         2. For over forty years, he teaches graduate courses at California State University, Dominguez Hills and Chapman University. See Jan. 15 Tr. at 5:12-17 (Kleiner, Foy); Kleiner Report at 1.

         3. Kleiner teaches courses on “managing human resources, personnel management, organizational behaviors, [and] organizational behavior in administration.” Jan. 15 Tr. at 6:11-13 (Kleiner).

         4. All Kleiner's teaching has touched on the ADA. See Jan. 15 Tr. at 6:25-7:4 (Kleiner, Foy). See Kleiner Report at 1.

         5. He has won several awards, including recognition for his research publications' quality. See Jan. 15 Tr. at 7:11-17 (Kleiner).

         6. He specializes in management as it relates to protected categories of individuals -- like disabled individuals, and teaches and publishes on that topic. See Jan. 15 Tr. at 7:20-8:11 (Kleiner).

         7. Kleiner has served as an expert for over twenty years, has testified at over 250 depositions and at over sixty-five trials. See Jan. 15 Tr. at 8:18-22 (Kleiner, Foy); Kleiner Report at 1.

         8. Kleiner has written many articles, the majority of which have been in peer-reviewed publications. See Jan. 15 Tr. at 9:10-11:22 (Kleiner).

         9. White contacted Kleiner to provide an opinion whether the Town of Hurley treated White in a manner that aligned with the EEOC's guidance. See Jan. 15 Tr. at 11:23-12:6 (Kleiner, Foy).

         10. In the Kleiner Report, Kleiner considers the First Complaint, filed September 26, 2017 (Doc. 1)(“Complaint”), and the attached exhibits, the Ordonez Depo., the Huerta Depo., the Stevens Depo., the Rodriguez Depo., the White Depo., the Equal Emp't Opportunity Comm'n, 915.002, Enforcement Guidance: Reasonable Accomodation and Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002), available at https://www.eeoc.gov/policy/docs/accommodation.html (“EEOC Notice”), and the Employer-Provided Leave and the Americans with Disabilities Act, U.S. Equal Emp't Opportunity Comm'n (May 9, 2016), https://www.eeoc.gov/eeoc/publications/ada-leave.cfm (“Employer-Provided Leave Article”). See Jan. 15 Tr. at 12:12-20 (Kleiner); Kleiner Report at 8.

         11. To reach an opinion, Kleiner used content-analysis, which includes considering academic journals that may reference EEOC publications. See Jan. 15 Tr. at 13:4-16 (Foy, Kleiner).

         12. Content-analysis involves obtaining data and facts -- here, the case's facts -- and comparing them to criteria for human resource management. See Jan. 15 Tr. at 22:15-23:25 (Kleiner); Notice of Preferred Expert Testimony at 7, filed December 19, 2018 (Doc. 49)(“Expert Proffer”).

         13. Human resource management relies on content-analysis, and the field recognizes the practice as an appropriate methodology. See Jan. 15 Tr. at 24:6-23 (Foy, Kleiner).

         14. Kleiner has not written on, presented on, or taught on content-analysis. See Jan. 15 Tr. at 34:1-19 (Williams, Kleiner); Expert Proffer at 8-9.

         15. He uses the tool mostly for his engagements as an expert, and the methodology does not dictate the themes that Kleiner considers. See Jan. 15 Tr. at 35:2-16 (Williams, Kleiner).

         16. Kleiner understands that the EEOC is a respected source for direction on how to address discrimination, and that it promulgates hundreds of publications and guidelines, although such publications are guidance and not law. See Jan. 15 Tr. at 14:8-3 (Foy, Kleiner).

         17. Kleiner relies on the EEOC Notice and the Employer-Provided Leave Article, because they contained guidance and hypotheticals useful to understanding an employer's actions. See Jan. 15 Tr. at 15:17-22:10 (Kleiner).

         18. Kleiner considers the EEOC Notice and the Employer-Provided Leave Article, because they reflect the most relevant EEOC guidance even though such guidance is not “black letter law.” Expert Proffer at 2.

         19. After applying his methodology, Kleiner concludes that the Town of Hurley did not comply with the EEOC's guidance, because the Town of Hurley did not investigate how it might accommodate White. See Jan. 15 Tr. at 25:6-26:1 (Kleiner).

         20. Kleiner opines: “The defendant's treatment of Don White was not done in a manner consistent with standards established by the U.S. Equal Employment Opportunity Commission.” Kleiner Report at 8.

         21. Kleiner quotes large portions of the EEOC's guidance -- specifically the guidance in the EEOC Notice, and the Employer-Provided Leave Article See Kleiner Report at 8-15.

         22. Kleiner summarizes statements from the Ordonez Depo. and the Rodriguez Depo., and concludes:

[T]here is insufficient evidence to suggest that the defendant did any of the following:
a. Even considered Mr. White's rights and their [sic] obligations with respect to the Americans with Disabilities Act.
b. Modified their [sic] leave policy to accommodate Mr. White's disability.
c. Investigated to determine if there was a vacant position that could be held for Mr. White until he returned from leave.
d. Investigated to determine if it was an undue hardship to keep Mr. White's position open until his return or, if so, a vacant position for which Mr. White would be qualified to fill. As it stands, according to the deposition testimony of Peter Ordonez, not having officers out on the street all the time, causing the sheriff's department or state police to cover them from time to time . . . hardly amounts to being an undue hardship.

Kleiner Report at 16-17.

         23. Kleiner did not, however, review the Town of Hurley's answer or any discovery documents when undertaking his analysis. See Jan. 15 Tr. at 29:17-30:8 (Williams, Kleiner).

         24. He focused on themes in the facts that reflect ideas that the EEOC has established, see Jan. 15 Tr. at 31:5-19 (Williams), and he copied and pasted the EEOC guidelines so he could not be accused of editing to reflect his bias, see Jan. 15 Tr. at 37:3-11 (Williams, Kleiner).

         25. Kleiner adopts the themes from the EEOC guidelines. See Jan. 15 Tr. at 47:3-10 (Williams, Kleiner).

         26. He bases his conclusion on the EEOC guidelines and determines that the Town of Hurley's actions did not comply with the guidelines. See Jan. 15 Tr. at 40:18-21 (Kleiner).

         27. Kleiner references, however, two depositions in the Kleiner Report -- the Ordonez Depo. and the Rodriguez Depo., and does not explain how he applies the EEOC's guidance to the facts. See Jan. 15 Tr. at 38:16-39:12 (Williams, Kleiner).

         28. In reaching his conclusions, Kleiner “made a judgment call on what constituted sufficient evidence.” Tr. at 49:7-8 (Williams). Jan. 15 Tr. at 49:9 (Kleiner).

         29. Kleiner, for instance, considered Ordonez' testimony that he needed to fill HPD officer positions. See Jan. 15 Tr. at 59:25-60:13 (Foy, Kleiner).

         30. He also considered that the Grant County Sheriffs Office and the New Mexico State Police helped cover the Town of Hurley's territory. See Jan. 15 Tr. at 60:6-18 (Foy, Kleiner).

         31. Kleiner is not a law enforcement officer, did not study documents related to Grant Sheriff s Office or NM State Police, and based his conclusions on the depositions and the EEOC guidance. See Jan. 15 Tr. at 50:4-21 (Williams, Kleiner).

         32. Several courts have excluded Kleiner's opinions. See Jan. 15 Tr. at 56:17 (Kleiner).

         PROCEDURAL BACKGROUND

         White brings four claims against the Town of Hurley. See First Complaint ¶¶ 14-45, at 5- 10, filed September 26, 2017 (Doc. 1)(“Complaint”). He argues that: (i) the Town of Hurley violated the ADA § 12112 by not considering granting White leave without pay as a reasonable accommodation and not engaging in an interactive process with him, see Complaint ¶¶ 14-22, at 5-7; (ii) the Town of Hurley violated the ADA § 12203(a) by retaliating against himby considering his request to extend his leave without pay as a voluntary resignation, see Complaint ¶¶ 23-28, at 7; (iii) the Town of Hurley violated the ADEA § 623 by hiring two individuals under forty rather than White, who was over forty, see Complaint ¶¶ 29-37, at 7-9; and (iv) the Town of Hurley violated the ADA § 102(d)(2)(A) by asking White about his injury during the August, 2016, interview, see Complaint ¶¶ 38-45, at 9-10. In response to these claims, the Town of Hurley filed the MSJ.

         1.The MSJ.

         The Town of Hurley asks that the Court grant summary judgment for it on all of White's claims. See MSJ at 1. The Town of Hurley begins by arguing that White cannot “make out a prima facie claim for failure to accommodate under the [ADA], ” because White “was not ‘otherwise qualified' to return to work as a Hurley Police Officer, and plaintiffs request for indefinite and extended leave to which he was not entitled did not constitute a request for a reasonable accommodation.” MSJ at 8 (emphasis in MSJ). The Town of Hurley describes that the United States of America Court of Appeals for the Tenth Circuit has a three-part test for failure-to-accommodate claims; a plaintiff must show that: “(1) he is disabled; (2) he is otherwise qualified; and (3) he requested a plausibly reasonable accommodation.” MSJ at 8 (citing Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir. 2017)). The Town of Hurley contends that White was not “otherwise qualified, ” because he could not “return to work as a police officer” on August 3, 2015. MSJ at 9-10. The Town of Hurley further argues that, because White could not work for over a year before August, 2015, and, in August, 2015, “the most that plaintiff could say was that he hoped to return after an additional six-to-nine months, ” White was not qualified. MSJ at 11-12. Moreover, according to the Town of Hurley, requesting an indefinite amount of time off work is not a reasonable accommodation, and White requested “an uncertain and indefinite amount of unpaid leave.” MSJ at 13. See id at 11-13. The Town of Hurley adds that White “requested leave to which he was not actually entitled under the FMLA, ” which applies only to employers with fifty employees “at or within 75 miles of the employee's worksite.” MSJ at 15. According to the Town of Hurley, it has never employed that many individuals. See MSJ at 15-16. The Town of Hurley contends that a plaintiff cannot sustain a retaliation claim for denying FMLA benefits if the plaintiff is not otherwise entitled to the benefits. See MSJ at 16-17.

         The Town of Hurley additionally argues that, because White did not request a reasonable accommodation, the Town of Hurley “was not actually obligated to engage in ‘any interactive process' with plaintiff.” MSJ at 17. The Town of Hurley notes that “the interactive process is only a means to an end, ” MSJ at 18 (citing Valdez v. McGill, 462 Fed.Appx. 814');">462 Fed.Appx. 814, 819 (10th Cir. 2012)(unpublished)), and that “an employer's failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA, ” MSJ at 18 (citing McBride v. BIC Consumer Prods., 583 F.3d 92, 101 (2d Cir. 2009); Valdez v. McGill, 462 Fed.Appx. at 819; Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000)). According to the Town of Hurley, White cannot base his ADA claim on the Town of Hurley's failure to participate in an interactive process, and the Town of Hurley had no obligation to participate in such a process. See MSJ at 18.

         The Town of Hurley also argues that White cannot succeed on his retaliation claim under the ADA. See MSJ at 18. The Town of Hurley articulates a three-part standard for a prima facie retaliation case: “plaintiff must demonstrate that ‘(1) []he engaged in protected opposition to discrimination; (2) a reasonable employee would have found h[is] employer's subsequent action to be materially adverse; and (3) a causal connection exists between h[is] protected activity and the employer's action.'” MSJ at 19 (quoting Semsroth v. City of Wichita, 555 F.3d 1182, 1184 (10th Cir. 2009)). The Town of Hurley contends that White cannot show that he even engaged in a protected activity, because he did not request a reasonable accommodation. See MSJ at 19-20. The Town of Hurley argues that it declined to extend White's leave, because it needed HPD officers who could serve on duty, so White cannot establish a causal connection between his activity and the rejection of his employment application, or show that the Town of Hurley rejected his employment application for pretextual reasons. See MSJ at 20.

         The Town of Hurley further argues that White cannot sustain his ADEA claim. See MSJ at 20. The Town of Hurley notes that White did not exhaust the administrative remedies for his ADEA claim; according to the Town of Hurley, he did not file as required a charge of discrimination with the EEOC. See MSJ at 21. The Town of Hurley posits that White did not check the box next to “age” in his charge of discrimination form. MSJ at 22. Consequently, according to the Town of Hurley, it deserves summary judgment on this claim. See MSJ at 21. Additionally, the Town of Hurley avers that the ADEA does not even apply to it, because, according to the Town of Hurley, it has less than twenty employees. See MSJ at 22-23 (citing 29 U.S.C. § 630(b)).

         Last, the Town of Hurley contends that White cannot sustain his “claim for disability discrimination under the ADA based” on his April, 2016, interview. MSJ at 23. According to the Town of Hurley, White alleges that, during the interview, an interviewer asked about his recovery to determine if the Town of Hurley would need to provide him further accommodation, but the Town of Hurley explains that, during his deposition, White admitted that the question was not part of the interview process. See MSJ at 24. The Town of Hurley contends that, even if the interviewer asked the question as part of the interview process, “such an inquiry was not unlawful, ” MSJ at 24, because the Town of Hurley could inquire about White's ability “to perform job-related functions, ” MSJ at 24 (internal quotation marks omitted)(quoting 42 U.S.C. § 12112(d)(2)(B)). The Town of Hurley contends that, because the position of police officer is a “safety-sensitive position, ” the Town of Hurley could ask whether White could perform the job's duties. MSJ at 24-25. According to the Town of Hurley, “[additionally, when an employer could reasonably believe that an applicant's known disability will interfere with the performance of a job-related function, the employer is allowed to inquire about this disability.” MSJ at 25 (citing Harris v. Harris & Hart, 206 F.3d 838, 842 (9th Cir. 2000); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 673 (1st Cir. 1995)). For the Town of Hurley, this principle makes the question about White's recovery proper. See MSJ at 26.

         The Town of Hurley further argues that White cannot show that it discriminated against him when it rejected his employment application. See MSJ at 26. The Town of Hurley describes the test for whether a plaintiff can establish a prima facie case of discrimination: “a plaintiff must establish that: (i) he is disabled; (ii) he is qualified to perform the essential functions of the job, with or without accommodation; and (iii) the employer discriminated against him because of his disability.” MSJ at 26-27 (citing Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188-89 (10th Cir. 2003); MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1443 (10th Cir. 1996)). The Town of Hurley argues that, in April, 2016, White “was not qualified to serve as a police officer or patrolman . . ., given his anger and temper.” MSJ at 27. According to the Town of Hurley, White admitted that his traumatic brain injury “has lasting affects [sic] on his emotions and can occasionally be detected in his temper.” MSJ at 27. The Town of Hurley indicates that an HPD officer must be able to work with citizens on the streets and that the interview committee perceived that White had anger problems, which could be directed “at a Hurley resident or townsperson, ” and contends that such concerns “constituted a legitimate reason to decline plaintiffs employment application.” MSJ at 27. For the Town of Hurley, this situation reflects that White's “disability was a ‘determining factor' in the Town's decision to reject his application for employment.” MSJ at 27.

         2.The MSJ Response.

         White responds. See MSJ Response. White first responds that he is a qualified individual, because ADA § 12132 (“Title II”) covers the Town of Hurley and because a municipality's leave program is a public program under Title II. See MSJ Response at 12 (citing Dertz v. City of Chicago, 912 F.Supp. 319, 321 (N.D. Ill. 1995)(Manning, J.)). According to White, under Title II, a qualified individual is an individual who “meets the essential eligibility requirements for the receipt of service or the participation in programs or activities provided by a public entity.” MSJ Response at 13 (citing Dertz v. City of Chicago, 912 F.Supp. at 321). In White's view, White was a “disabled police officer, ” who had requested temporary unpaid leave and “met the essential eligibility requirements for participation in the leave without pay program, ” like the officer in Dertz v. City of Chicago. MSJ Response at 13.

         White further contends that he requested reasonable accommodations, because he requested “six months of additional unpaid leave.” MSJ Response at 14. White argues that he did not request indefinite leave, and notes that the Town of Hurley had previously granted him a year of unpaid leave, and knew that the leave was to give him time for surgery and for his skull to heal. See MSJ Response at 14. White indicates that Ordonez never commented that White's request was unreasonable, and that, “in reality, ” White could have returned to work in three months after he made his request. MSJ Response at 14.

         White disputes that the Aug. 3 letter was not a request for a reasonable accommodation and is “an open-ended letter requesting indefinite leave.” MSJ Response at 15. According to White, “the letter was specific in notifying the Defendant that Plaintiff was awaiting a surgery date in the near future”; “Plaintiff has no control over when his brain fell within the normal limit to allow for measurement of an artificial skull”; and “[b]y October 20, 2015 Plaintiff was released as the artificial skull was successfully placed over his brain.” MSJ Response at 15. White further posits that the Town of Hurley's leave policy permits indefinite leave without pay. See MSJ Response at 15.

         White also argues that he participated in a protected activity. See MSJ Response at 15. White describes that he “does not allege that he was entitled to additional unpaid leave under the FMLA and such entitlement is not an element to establish a reasonable accommodation claim.” MSJ Response at 15. White contends that, in August, 2015, “he was entitled to have the town council decide whether he was entitled to additional unpaid leave, ” as occurred in the fall of 2014, and, that, without an interactive process, Ordonez “unilaterally denied Plaintiffs request for unpaid leave without weighing factors and determining whether the request placed an undue burden on the business of the Town.” MSJ Response at 16. White stresses that his protected activity is the request for a reasonable accommodation and for additional leave, and that the FMLA, contrary to the Town of Hurley's assertions, is irrelevant. See MSJ Response at 16.

         White further emphasizes that the Town of Hurley had a duty to engage in an interactive process to determine whether it could grant him a reasonable accommodation. See MSJ Response at 17. White asserts that he does not try to make a claim only on the grounds that the Town of Hurley denied him an interactive process. See MSJ Response at 17. White contends, however, that the Town of Hurley engaged in no interactive process with him after he asked for additional leave and that Ordonez “flatly rejected to consider Plaintiffs request.” MSJ Response at 17.

         White additionally avers that he can establish a prima facie case of retaliation. See MSJ Response at 18. White argues that he engaged in protective activity by requesting “six months of leave without pay, based on a policy that did not define an upper limit for requested unpaid leave, for time to have his artificial skull placed over his exposed brain.” MSJ Response at 18. According to White, he offered the Town of Hurley medical updates and “indicated that he would be able to return once he obtained a permanent artificial skullcap that covered his entire brain.” MSJ Response at 17-18. White avers that he experienced an adverse employment action when Ordonez would not consider his request and, instead, terminated his position. See MSJ Response at 19. According to White, a casual connection exists between this adverse employment action and the protected activity, because, in White's view, the adverse employment action occurred immediately in response to White's request. See MSJ Response at 19. White disputes that the Town of Hurley had a legitimate reason for denying his request, because, according to White: (i) the Town of Hurley presents no evidence that they considered White's request or that White's request would prevent them from “having active police officers on the force”; (ii) the Town of Hurley saw frequent turnover in its HPD officers during the period surrounding this dispute; and (iii) the Town of Hurley at times relied on the Grant Sheriff's Office and NM State Police to cover the town. MSJ Response at 19. White also notes that, when the Town of Hurley terminated his employment, it did not follow its personnel policy and have the Town Council make a decision regarding White's request for additional leave. See MSJ Response at 19-20.

         White additionally argues that the Town of Hurley discriminated against him when “an agent of the Defendant asked him how his rehabilitation for traumatic brain injury was going and whether he would require more rehabilitation for traumatic brain injury in the future.” MSJ Response at 20. White explains that the questions occurred during his April, 2016, job interview and that 42 U.S.C. § 12112 “specifically prohibits that type of questioning.” MSJ Response at 20. White asserts that the question was asked “brief moments before the formal interview started.” MSJ Response at 21. White complains that the Town of Hurley proffers inconsistent arguments against finding that this questioning was discrimination. See MSJ Response at 21. White notes that no interviewers remember asking the question, but contends that the question was asked “to assess whether they could trust hiring a person with traumatic brain injury who may require a future reasonable accommodation.” MSJ Response at 21-22 (citing Interview Scoring at 2). White also complains that, although one interviewer “called him ‘a hot head, '” “two of the three scoring sheets gave Plaintiff across the board tens on all scoring criteria on a one to ten scale.” MSJ Response at 22. White contends that the Town of Hurley has no evidence that the interviewer asked the questions out of concerns about safety and that “only after Plaintiff was questioned [did] Freddy Rodriguez [say] that Plaintiff ‘wasn't the same Don.'” MSJ Response at 22. White concludes the MSJ Response by withdrawing his ADEA claim. See MSJ Response at 22.

         3.The MSJ Reply.

         The Town of Hurley replies. See Defendant Town of Hurley's Reply to Plaintiffs Response to Omnibus Motion for Summary Judgment, filed October 26, 2018 (Doc. 41)(“MSJ Reply”). The Town of Hurley first notes that White abandons his ADEA claim and requests that the Court consequently dismiss Count 3 of the Complaint. See MSJ Reply at 9. The Town of Hurley argues that White relies on Title II, but the Tenth Circuit has concluded that “litigants asserting public employment discrimination claims against their state and local government employers . . . cannot rely on Title II.” MSJ Reply at 9. According to the Town of Hurley, White, therefore, cannot sustain his arguments.

         The Town of Hurley also clarifies that the Tenth Circuit has concluded and cited approvingly law from other Courts of Appeals stating that an indefinite leave of absence is not a reasonable accommodation. See MSJ Reply at 10 (citing Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996); Johnson v. EA. Miller, Inc., 172 F.3d 62, 1999 WL 94827, at *3 (10th Cir. Feb. 25, 1999)(unpublished table opinion)). The Town of Hurley contends that White did not request a specific date to return to work, or make clear when or if he could return to work. See MSJ Reply at 10. The Town of Hurley also disputes White's characterization of its argument about the FMLA, and indicates that “[t]he Town cited those cases for the proposition that an employee requesting leave under the FMLA must, in the first instance, actually be entitled to such leave before he or she can state a retaliation claim based upon the denial of such a request.” MSJ Reply at 11 (emphasis in MSJ Reply). The Town of Hurley contends that, because White did not make a request for a reasonable accommodation and because he was not otherwise entitled to leave, he did not engage in protected activity. See MSJ Reply at 11. The Town of Hurley reiterates that it was not under a duty to engage in an interactive process with White, because he did not request a reasonable accommodation, and because he did not identify a vacant position or request reassignment. See MSJ Reply at 12. Again, according to the Town of Hurley, White also cannot maintain a retaliation claim, because he did not make a reasonable request for accommodation. See MSJ Reply at 12. The Town of Hurley disputes that White made a request for a definite accommodation. See MSJ Reply at 12. The Town of Hurley also repeats that an employer can inquire about an applicant's ability to perform job-related functions and so the question at the interview was proper. See MSJ Reply at 12.

         4. The Expert Proffer.

         White also provides a Notice of Preferred Expert Testimony, filed December 19, 2018 (Doc. 49)(“Expert Proffer”), in which he describes his proposed questions for Kleiner and Kleiner's proposed testimony. See Expert Proffer at 0. The Expert Proffer indicates that White will cover Kleiner's experience, his initial involvement in the case and the information that he considered in reaching conclusions. See Expert Proffer at 1-2. The Expert Proffer also contains Kleiner's opinion and sub-opinions. See Expert Proffer at 9.

         5. The Expert Motion.

         The Town of Hurley asks that the Court exclude Kleiner's opinions, report, and testimony. See Expert Motion at 1. The Town of Hurley contends that, in Kleiner's report, he offers a one-sentence opinion: “[T]he Town of Hurley's ‘treatment of [White] was not done in a manner consistent with standards established by the U.S. Equal Employment Opportunity Commission.'” Expert Motion at 4 (quoting Kleiner Report at 8). The Town of Hurley contends that the Kleiner Report consists largely of sections that he copied and pasted from the EEOC Notice and the Employer-Provided Leave Article. See Expert Motion at 4-5. The Town of Hurley explains that Kleiner cherry-picks deposition excerpts for his report, and omits sections such as Ordonez' statement that the Town of Hurley had already given White over a year of leave, that the Town of Hurley “was short two police officers” during White's absence, that the Town of Hurley did not have open positions for White in August, 2015, or that White did not obtain a notice that he could return to work. Expert Motion at 5-6.

         The Town of Hurley argues that Kleiner's conclusions are mostly legal opinions. See Expert Motion at 9. The Town of Hurley notes that the EEOC's publications are just the agency's interpretations of the law. See Expert Motion at 9-10. The Town of Hurley objects to Kleiner's opinions that: (i) the Town of Hurley did not consider White's rights or its responsibilities under the ADA; (ii) the Town of Hurley did not reasonably accommodate White; and (iii) the Town of Hurley not having police officers on duty is not an undue hardship. See Expert Motion at 10-11. The Town of Hurley notes that other courts have excluded Kleiner's testimony. See Expert Motion at 12 (citing English v. Estes Express Lines, No. 5:16-cv-01353-CAS(SKx), 2018 WL 1136058 (CD. Cal. Feb. 15, 2018)(Snyder, J.); Kuang v. Bel Air Mart, 205 F.Supp.3d 1155, 1159-61 (E.D. Cal. 2016)(Mendez, J.); Wagner v. ABW Legacy Corp, Inc., No. CV-13-2245-PHX-JZB, 2016 WL 880371 (D. Ariz. March 8, 2016)(Boyle, M.J.); Sullivan v. Salt River Project Agric. Improvement & Power Dist, No. CV-12-01810-PHX-SRB, 2014 WL 11514480, at *4 n.7 (D. Ariz. June 5, 2014)(Bolton, J.); Brown v. West Corp., No. 8:11CV284, 2014 WL 1757576 (D. Neb. May 1, 2014)(Strom, J.); Carmichael v. Raytheon Co., No. CV 09-3089 GAF (Ex), 2010 WL 11549436 (CD. Cal. Nov. 4, 2010)(Feess, J.); Rieger v. Orlor, Inc., 427 F.Supp.2d 99 (D. Conn. 2006)(Arterton, J.); Marting v. Crawford & Co., No. 00 C 7132, 2004 WL 305724 (N.D. Ill. Jan. 9, 2004)(Ashman, M.J.)). The Town of Hurley complains that, here, like in the other cases in which courts have excluded Kleiner's testimony, Kleiner draws on no “particular methodology” and applies the law to the facts, which “is precisely what the jury would be tasked to do in this case.” Expert Motion at 18. The Town of Hurley notes that Kleiner relied on the EEOC to establish the appropriate standard and then ignored deposition testimony that did not support his views. See Expert Motion at 18-19. The Town of Hurley concludes by noting that Kleiner's report is inadmissible hearsay. See Expert Motion at 19 (citing Potts v. Sam's Wholesale Club, 108 F.3d 1388 (10th Cir. 1993)(unpublished table decision); Skyline Potato Co. v. Hi-Land Potato Co., No. CIV 10-0698 JB/RHS, 2013 WL 311846, at *15 (D.N.M. Jan. 18, 2013)(Browning, J); Vondrak v. City of Las Cruces, No. CIV 05-0172 JBLFG, 2007 WL 2219449, at *3 n.4 (D.N.M. May 14, 2007)(Browning, J.)).

         6.The Expert Response.

         White responds. See Plaintiffs Response to Defendant Town of Hurley's Daubert Motion to Exclude the Testimony and Opinions of Brian H. Kleiner and Memorandum in Support Thereof, filed October 12, 2018 (Doc. 39)(“Expert Response”). White indicates that, although the Town of Hurley does not “directly raise an argument about whether Dr. Kleiner is qualified, ” Kleiner has thirty-five years “as a professor of Human Resources Management in the College of Business and Economics at California State University.” Expert Response at 2. White contends that Kleiner's opinion is reliable, because he explains the human resource management and methodology he uses, and relies on sixteen journals to support his approach. See Expert Response at 3. Moreover, according to White, Kleiner “employs content-analysis and compares facts he deems relevant to form his opinion, ” and considers the Complaint, the White Depo., the Ordonez Depo., the Huerta Depo., the Rodriguez Depo., the EEOC Notice, and the “Employer-Provided Leave.” Expert Response at 3. White argues that Kleiner's testimony is relevant, because, according to White, it addresses whether the Town of Hurley's actions aligned with the EEOC's standards and it helps the jury to decide whether White made a request for accommodation, whether the request was reasonable, and whether the Town of Hurley “failed to engage in an interactive process.” Expert Response at 4. See Expert Response at 3-4. White contends that Kleiner does not offer legal conclusions and argues: “A legal conclusion would be the proposition that Defendant violated the American with Disabilities Act against Plaintiff. Another legal conclusion would be Plaintiff is disabled under the ADA or Plaintiff s request for accommodation was in fact reasonable under the ADA.” Expert Response at 5. According to White, the EEOC has promulgated standards for how an employer interacts with a disabled employee, and, in White's view, Kleiner opines that the Town of Hurley did not act consistent with these standards. See Expert Response at 6. White summarizes:

Dr. Kleiner says that the frame work [sic] an employer needs to consider first includes understanding both the employees and the employers [sic] rights and obligations under the ADA. Next, determine whether employer can accommodate employee in granting additional unpaid leave, determine whether there is a vacant position that could be held for employee and finally undertake an investigation to determine if employees [sic] position could remain open until he returns or there is an undue hardship. From the record reviewed by Dr. Kleiner, Ordonez' investigation and ultimate decision did not follow standards established by the EEOC . . . .

         Expert Response at 6-7. White contends that previous courts' decisions about Kleiner are irrelevant, because the Court has leeway to decide whether to admit expert testimony and should make its own decision here. See Expert Response at 7. White lastly notes that the Town of Hurley does not explain why Kleiner's opinion is inadmissible hearsay and disputes that it is inadmissible hearsay. See Expert Response at 7-8.

         7.The Expert Reply.

         The Town of Hurley contends that White has not met his burden as the proponent of Kleiner's testimony to show that Kleiner's testimony is admissible by a preponderance of the evidence, because, according to the Town of Hurley, White has offered generalities only and not shown that Kleiner's testimony is based on sound methodology or proffers proper, non-legal, conclusions. See Defendant's Reply to Plaintiffs Response to Daubert Motion to Exclude the Testimony and Opinions of Brian H. Kleiner and Memorandum in Support Thereof at 2, filed October 26, 2018 (Doc. 42)(“Expert Reply”). The Town of Hurley repeats its argument that Kleiner's testimony is not based on reliable methods: “Kleiner read the documents provided to him by plaintiffs counsel, cherry-picked those ‘facts he deem[ed] relevant to form his opinions,' copied-and-pasted excerpts from EEOC guidance materials, and then stated his conclusions.” Expert Reply at 4 (quoting Expert Response at 3). According to the Town of Hurley, to support Kleiner's testimony, the “Plaintiff conclusorily offers Dr. Kleiner's own statement that ‘content-analysis . . . is a universally recognized scientific method,' i.e. plaintiff suggests that this Court should simply take Dr. Kleiner's word for it.” Expert Reply at 4 (quoting Expert Response at 6). According to the Town of Hurley, this unreliability makes Kleiner's opinions and testimony inadmissible. See Expert Reply at 4-5.

         The Town of Hurley further contends that Kleiner merely applies the law to the facts, which is impermissible. See Expert Reply at 4-5. According to White, Kleiner's “opinions merely parrot plaintiffs allegations and deposition testimony that he was subjected to discrimination.” Expert Reply at 6. The Town of Hurley also argues that it is relevant and persuasive that other courts have excluded White's testimony in cases resembling this litigation. See Expert Reply at 7 (citing English v. Estes Express Lines, 2018 WL 1136058; Wagner v. ABW Legacy Corp, Inc., 2016 WL 880371). The Town of Hurley repeats that Kleiner's expert report is inadmissible hearsay and avers that White has not identified an exception under which the report would be admissible. See Expert Reply at 8-9. The Town of Hurley concludes by noting that “there are no genuine issues of material fact in this case, ” and that, to dispute the Town of Hurley's proposed undisputed facts, White offers nothing more than legal conclusions, on which neither White nor his expert can rely. See Expert Reply at 7.

         8.The December 21, 2018, Hearing.

         The Town of Hurley began the hearing by indicating that they believed that the facts were “pretty much undisputed, ” Draft Transcript of Hearing at 4:7-8 (taken December 21, 2019)(Jarmie)(“Dec. 21 Tr.”), and it summarized the facts, see Dec. 21 Tr. at 4:17-5:23 (Jarmie); id at 6:22-8:3 (Jarmie). In response to the Court's inquiry about the facts, the Town of Hurley indicated that it treats as additional facts any of White's proposed undisputed facts with which it disagrees. See Dec. 21 Tr. at 8:11-22 (Court, Jarmie). The Town of Hurley then summarized its arguments against the failure-to-accommodate claim. See Dec. 21 Tr. at 9:20-10:14 (Jarmie). The Town of Hurley encouraged the Court to consider Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014), in which the Honorable Neil Gorsuch, then-United States Circuit Judge for the Tenth Circuit, notes that an employee who cannot work is not capable of performing the job's essential functions and that the reasonable-accommodation requirement does not mandate that the employer maintain an employee's position forever. See Dec. 21 Tr. at 10:15-11:25 (Jarmie). The Town of Hurley suggested that the request for leave in Hwang v. Kansas State University was more definite than White's request was. See Tr. at 10:25-11:4 (Jarmie). The Town of Hurley also drew the Court's attention to Valdez v. McGill and Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir. 1998). See Dec. 21 Tr. at 11:19-23 (Jarmie). The Town of Hurley expressed that, if the Court reads the Aug. 3 Letter, it will quickly determine that, contrary to White's arguments, White requested indefinite leave. See Dec. 21 Tr. at 12:7-10 (Jarmie).

         The Town of Hurley posited that the FMLA claim does not apply to it, because it has less than fifty employees. See Dec. 21 Tr. at 12:21-13:6 (Jarmie). The Town of Hurley also indicated that White cannot sustain his argument that the Town of Hurley did not undergo an interactive process with him, because White neither was a qualified employee nor requested a reasonable accommodation. See Dec. 21 Tr. at 13:70-14:4 (Jarmie). The Town of Hurley further contended that White did not engage in protected activity and reiterated why White cannot support a retaliation claim. See Dec. 21 Tr. at 14:11-15:5 (Jarmie). The Town of Hurley did not address the ADEA claim, because White conceded that he abandons that claim. See Dec. 21 Tr. at 16:6-12 (Jarmie, Foy). See also id. at 41:2-4 (Foy). The Town of Hurley then repeated its arguments from the MSJ against White's medical-inquiry and disability-discrimination claims. See Dec. 21 Tr. at 16:13-17:20 (Jarmie).

         White agreed that the parties do not dispute the facts. See Dec. 21 Tr. at 19:1-7 (Foy). The Court asked White with which facts from the MSJ he disagreed. See Dec. 21 Tr. at 19:8-13 (Court). White responded that he disputes: (i) paragraph 25, which alleges that he had used curse words and profanities during the interview, see Dec. 21 Tr. at 19:20-22 (Foy); (ii) paragraph 26, which states that White “had an apparent attitude of anger, ” Dec. 21 Tr. at 20:1-2 (Foy); and (iii) paragraphs 32 and 33, which address whether White requested indefinite leave, see Dec. 21 Tr. at 20:4-7 (Foy). White indicated that his paragraph 44 contradicts paragraph 25, see Dec. 21 Tr. at 20:18-23 (Foy), and that his paragraph 45 states that Rodriguez did not recall asking about White's injuries, see Dec. 21 Tr. at 20:23-25 (Foy).

         White repeated that he was qualified and had requested a reasonable accommodation. See Dec. 21 Tr. at 32:5-32:23 (Foy). White indicated that he believes that he could not have worked anywhere within the Town of Hurley until he received his artificial skull, because any incident might have severely injured him. See Dec. 21 Tr. at 22:20-23:2 (Foy). White argued that the Town of Hurley's leave without pay policy does not limit an employee's amount of leave and that he qualified under the policy. See Dec. 21 Tr. at 24:25-25:8 (Foy). White reiterated his contention that Ordonez unilaterally decided to deny his request for additional leave. See Dec. 21 Tr. at 28:9-18 (Foy). White differentiates Hwang v. Kansas State University from this case, arguing that, in Hwang v. Kansas State University, the university had a six-month maximum leave policy but that the Town of Hurley's policy is unlimited. See Dec. 21 Tr. at 29:10-30:11 (Foy). White argued that Ordonez did not contact White to determine exactly the time that White might need to recover or otherwise discuss accommodating White. See Dec. 21 Tr. at 30:12-19 (Foy). White reiterated that he did not request indefinite leave; according to White, he requested sufficient time for his skull to heal and, by October, 2015, that healing had completed. See Dec. 21 Tr. at 31:5-9 (Foy). White contended that the Town of Hurley had a duty to engage in an interactive process to negotiate his request for leave. See Dec. 21 Tr. at 37:6-25 (Foy).

         White argued that the Town of Hurley did not have a legitimate reason to fire White, because, if the Town of Hurley were down two officers, Ordonez could have begun to resolve the problem by hiring one officer before firing White. See Dec. 21 Tr. at 33:25-34:13 (Foy). White noted that the Grant Sheriff's Office and the NM State Police could help the HPD and that, because the Town of Hurley saw considerable turnover in the HPD during this period, the Town of Hurley would not have suffered an undue hardship if it had accommodated White. See Dec. 21 Tr. at 35:1-24 (Foy).

         White indicated that he makes no claim based on the FMLA and that he merely mentioned the FMLA in a letter to the Town of Hurley. See Dec. 21 Tr. at 36:20-37:5 (Foy). White further noted that the Town of Hurley retaliated against him when it dismissed him based on his request for additional leave. See Dec. 21 Tr. at 38:1-23 (Foy). White also explained his arguments about the preemployment medical inquiry, ...


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