Full opinion text
MEMORANDUM AND ORDER MARTEN, District Judge. This matter comes before the court on cross motions for summary judgment in this employment discrimination case. Plaintiff asserts claims against the corporate defendants, alleging that both violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Kansas Act Against Discrimination (“KAAD”), 44 K.S.A. § 44-1001, et seq. Plaintiff also claims the corporate defendants are liable to her for breach of an implied contract and invasion of privacy. Against the four individually named defendants, plaintiff asserts violations of the non-retaliation provisions of the ADA. Finally, plaintiff brings fraud claims against all of the defendants. Plaintiffs motion for summary judgment was filed on February 11, 2002 and was fully briefed on April 15, 2002. Defendants’ motion for summary judgment was filed on February 28, 2002 and was fully briefed on May 3, 2002. The motions are thus ripe for determination. On April 10, 2002, plaintiff did file a supplement to her response to defendants’ motion for summary judgment. Defendants did not object to the first supplement. However, on June 13, 2002, plaintiff filed a second supplement to her response to defendants’ motion for summary judgment. The second supplement noted a recent Supreme Court case that cut against one of plaintiffs positions, but also cited additional deposition testimony and included additional argument based thereon. On June 14, 2002, defendants moved to strike the second supplement, or alternatively, for permission to reply. By order dated June 20, 2002, the court denied defendants’ motion to strike and granted the motion for permission to reply. The court thus will consider the testimony cited in plaintiffs second supplement and will further consider defendants’ response to that supplement. I. Statement of Uncontroverted Facts A. Objections Before discussing the factual record in this case, the court will address objections raised by both plaintiff and defendants. First, plaintiff seeks to establish the existence of her physical impairments through the use of testimony from two physicians named as experts in this case, Drs. Pollock and Cook and her treating physician, Dr. Cannon. Defendants object to this mode of proof, arguing that plaintiff is attempting to circumvent the court’s gatekeeping role established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendants assert that utilizing expert testimony at the summary judgment stage denies the defendants an opportunity to subject the testimony to the Daubert standard. Beyond the underlying Daubert objection, defendants make vague arguments regarding an alleged lack of foundation and non-specific attacks on the experts’ knowledge of the facts and credentials. The court concludes that defendants’ basic argument is unfounded. It is clear that the law allows the use of expert testimony at the summary judgment stage and, in fact, requires expert testimony in a wide variety of cases. Defendants cite Garrett v. Bryan Cave LLP, 211 F.3d 1278, 2000 WL 430163 (10th Cir.2000) in support of their argument. In that case, the circuit indicated that “the testimony of an expert can be rejected on summary judgment if it is conclusory and thus fails to raise a genuine issue of material fact.” Id. (quoting Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242, 1247 (10th Cir.1999)). Gamtt clearly indicates that the law contemplates the use of non-conclusory expert statements in support of summary judgment. Further, review of the doctors’ testimony indicates that the stated opinions are not merely conclusory but are actually quite fact driven. As such, the opinions are useful to the court in determining plaintiffs physical condition. Beyond the fact that the law contemplates use of proper expert testimony in support of summary judgment, defendants’ Daubert argument is mooted by the fact that they have failed to make a Daubert motion with respect to Drs. Pollock, Cook, and Cannon. The court’s deadline for Daubert motions was June 18, 2002. Defendants did file a timely Daubert motion, but it did not address either of these experts. Here, defendants’ primary argument is that plaintiff cannot support a summary judgment motion with expert testimony because it would deny them the right to subject the expert testimony to Daubert scrutiny. Having now waived the right to request such Daubert scrutiny of these two experts, defendants’ objection is denied and the court will consider the testimony of Drs. Pollock, Cook, and Cannon with the caveat that the court will ignore purely conclusory statements that are not based in fact. Second, in partial response to defendants’ motion for summary judgment, plaintiff filed 82 pages of objections to a large majority of defendants’ statement of facts. The objections fall, in large part, into three categories: relevance, lack of personal knowledge, and hearsay. The court has reviewed plaintiffs objections and finds the vast majority of them to be trivial at best and frequently could be considered absurd. To demonstrate, the court will address several of the objections taken at random. Starting at page 20 of plaintiffs objections, she addresses defendants’ statement of fact number 43, which states: “In his [Mr. Southammavong’s] opinion, plaintiff is able to use a knife safely if she is careful and does not cut herself.” Defendants cite the following testimony from the witnesses’ transcript: “Q: She has been able to do that safely? A: If she careful, I think it’s okay, if she don’t cut herself.” Plaintiff objects to this fact statement on the ground that it consists of inadmissible opinion testimony. A witness who has observed plaintiff in the workplace is more than qualified to formulate a lay opinion as to whether plaintiff has been or will be able to safely use a knife without cutting herself. Such testimony does not require specialized knowledge of plaintiffs condition. At page 31 of the objections, plaintiff addresses plaintiffs statement of fact number 67, which states: “During that meeting, Marr asked plaintiff to go home and get updated restrictions from her doctor within two weeks.” The cited testimony from plaintiffs deposition reads as follows: “A: Janice Marr told me to go home and to get new restrictions from my doctor. She said that I had two weeks to get new restrictions.” Plaintiff objects on the ground that this evidence is inadmissible hearsay. This objection is invalid as the statement of Marr is not offered for the truth of the matter, but only to establish what was said. Defendants are not attempting to prove through this testimony that plaintiff had two weeks to get new restrictions, but only that she was told that she had two weeks. At page 40, plaintiff objects to defendants’ statement of fact number 75, which states: “The short-term disability forms completed or signed by plaintiff represent that she is totally disabled and not working.” The cited evidence is the forms themselves. Plaintiff objects on hearsay grounds and lack of authentication. Plaintiff did not, however, object to the authenticity of the documents at the deposition. Nor does the court see any hearsay issue in this fact statement whatsoever. At page 50 of the objections, plaintiff addresses defendants’ statement of fact number 91, which states: “Plaintiffs Social Security disability application was not successful and she was denied benefits.” Defendants cited plaintiffs deposition testimony as follows: “Q: Did you get those benefits? A: No.” Plaintiff now objects to this evidence as inadmissible hearsay because it is offered to prove that Social Security made a statement denying benefits. This objection is entirely frivolous and does not merit further comment. The court could keep selecting objections on a ten page interval and would continue to find objections that are totally lacking in merit, but for the sake of judicial economy it will not. Suffice it to say that plaintiffs objections are overruled unless otherwise noted in the statement of facts. Plaintiff will note that it is her duty to come forward with FACTS to controvert the assertions of defendants. To the extent plaintiff has failed to do so, the court must presume defendants’ statements are uncontroverted. Plaintiff has, in large part, chosen to rely on senseless objections in an attempt to prevent the formulation of a workable record in this case. Despite plaintiffs approach to defendants’ motion, the merits of this case will be fully considered. B. Procedural Background Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) in April of 2000 and with the Kansas Human Rights Commission (“KHRC”) in May of that same year. The EEOC issued a Notice of Right to Sue on July 17, 2000. Plaintiff filed the instant action on September 11, 2000 and defendants answered on October 31, 2000. Plaintiff filed an amended complaint on June 8, 2001 and defendants answered the amended complaint on July 2, 2001. Discovery closed on November 30, 2001 with the exception of discovery pertaining to expert witnesses. C. Identities of Parties and Witnesses Plaintiff was employed at the Rubbermaid Home Products plant in Winfield, Kansas for approximately 19 years, from October 1980 to January 2000. Rubbermaid Home Products is a division of Rubbermaid, Inc. (“Rubbermaid”). Throughout her time at Rubbermaid, plaintiff was a production worker, operating various machines which manufactured the company’s products. Plaintiffs native language is Laotian and she does not speak fluent English. Plaintiff is, however, able to read some English. Plaintiff has seven adult children. Angel Praseuth is one of plaintiffs daughters. Angel is thirty-two years old and lives in California. She speaks fluent English and Laotian. Defendant Newell-Rubbermaid, Inc., is a corporation which was formed in March 1999 as a result of a merger between Newell Company and Rubbermaid. Rubbermaid is plaintiffs employer. Defendant William J. Denton was the group president and President of Rubbermaid Home Products Division from late March 1999 until July 2000. Denton’s sole responsibility was for the activities within the Rubbermaid Home Products Division. Defendant Cynthia Konrath was the senior human resource representative for Rubbermaid in the Winfield area. She was the manager of human resources for the Win-field, Kansas plants and assisted other plants from time to time. Her job was to oversee the human resource department. She was involved with the management team at Rubbermaid Winfield and helped set the direction within the corporate structure for the plant. She also provided training relating to communication skills. Defendant Debbie Littrell was the Group Benefits Administrator for Rubbermaid from sometime in 1994 through July 2000, when she left the company. Her job was to administer the benefits that the company offers, including short-term and long-term disability. Littrell would receive and process benefit requests, but she was not the decision maker regarding benefit issues. Defendant Janice Marr is the Safety Manager at Rubbermaid’s Winfield plants and reports to defendant Konrath. Ron Southammavong is plaintiffs brother. Plaintiff and Mr. Southammavong have lived together in the same house during all times relevant to this action. He has lived and worked in Winfield during all times relevant to this lawsuit. He is fluent in both English and Laotian. He frequently acts as an interpreter or translator for plaintiff and has attended several meetings and doctor appointments with plaintiff. Somsy Sengvixay is a Rubbermaid supervisor who is fluent in both English and Laotian. While plaintiffs testimony is somewhat unclear, on at least one occasion, 'Sengvixay was called upon to translate between plaintiff and other Rubbermaid employees. Defendants’ Memorandum in Support, Plaintiffs Deposition, Exhibit 4, at p. 61. D. General Background Information about Rubbermaid Every Rubbermaid employee, director or officer is known as an “associate.” Production workers are thus associates, as are all supervisory employees. Rubbermaid has two plants in Winfield, Kansas, one on Wheat Road and one on 12th Street. Plaintiff worked primarily on the production floor at the Wheat Road plant. The production floor is divided into departments and cells. A department is made up of one or more cells. A cell is comprised of one or more machines which produce Rubbermaid products. Each machine may have multiple workers’ stations, depending on the product being made at the relevant point in time. Certain machines, some of which plaintiff operated, were not included in any cells. Rubbermaid utilizes a “rotation” system for the production workers at its Winfield plants. In order to provide rest and relief from repetitive jobs, em- • ployees rotate positions every hour. Some positions are more difficult than others and the employees get to perform both the easy and the difficult. It is uncontroverted that knife use is a major part of the production worker position at the Winfield plants. However, plaintiff does raise an issue as to the extent of required knife use. Perry Wozney served as operations manager at the Win-field plants from July 1999 to March 2001. He testified that, of the 80 machines in operation at the Wheat Road plant, anywhere from between 42 to 61 of the machines would not require knife use on a given day or shift. Plaintiffs Response to Defendants’ Motion, Exhibit C, at 9-10 (page numbers reflect plaintiffs handwritten designation as opposed to deposition transcript page number). Included in these estimates are positions where the worker could opt to use either a knife or a hammer to perform a required function. In that same vein, plaintiff testified that when she worked on machine 104, she removed excess pieces of plastic with a hammer, but she understood that a knife could be used to accomplish the same task. Steven McNinch, production manager at the Wheat Road plant since July 1998, estimated that from 10 to 60 percent of the production jobs at his plant could be done without use of a knife. Plaintiffs Response to Defendants’ Motion, Exhibit D, at 6. Robin Goodno, team leader and subsequent production supervisor at the Win-field plants indicated that, of the machines in her area (total number unclear), eight could be operated without use of a knife on certain production runs, but that the number would vary given specific circumstances. It is clear that an unspecified number of machines at the Winfield plants did not require knife use at given points in the production cycles. Defendants contend that the various statements noted above are taken out of context because the various testimonies do not distinguish between extracting the products from molds using a knife or hand finishing a product with a knife. The court notes the confusion, but also concludes that the noted witnesses did indicate various numbers of positions that did not require knife use. The court cannot sort out the distinctions alleged by defendant, but must instead conclude that a fact issue exists regarding the number of positions in the Winfield plants that do not require knife use. Rubbermaid does take steps to insure the safety of its employees, including: staffing a safety manager, employing engineers that have ergonomics training, stocking safety equipment, and giving employees working machines authority to shut them down should a safety problem arise. Additionally, Rubbermaid’s production workers are protected from cuts through use of protective equipment, including: Kevlar gloves, and aprons and arm guards made of heavy leather covered with metal brads. On January 1, 1995, Rubbermaid instituted a restricted duty policy in its Win-field plants. During her deposition, Ms. Konrath testified to an unwritten portion of the restrictive duty policy which has been termed the 50% rule or 50% qualification standard. Under the 50% rule, an employee who presented permanent restrictions was required to be able to work in 50% of the production worker positions available on a given day. If an employee with permanent restrictions who was not grandfathered under the restrictive duty policy is unable to work in 50% of the positions available on a given day, employment is terminated. The 50% rule was only applied to employees with permanent restrictions and employees with only temporary restrictions were not required to be able to perform 50% of the available positions. As alluded to above, the restrictive duty policy does not apply to restrictions existing and disclosed to Rubbermaid prior to January 1,1995. Such restrictions were grandfathered in, meaning that rotation positions an employee could not perform due to such pre-existing restrictions were not evaluated as part of the available jobs in determining the 50% functionality level. Once a permanent restriction is noted, the employee with the impairment is assessed to determine whether that impairment would prohibit working at more than 50% of the available positions. Defendants advance that when it is clear that an employee either can or cannot meet the 50% standard, such an evaluation is unnecessary. The facts do not clearly indicate if the policy provided for such a curtailed evaluation or whether a permanent restriction automatically entitled the employee to a “walk-around,” a process by which an assessment is made by walking around both Winfield plants to view each machine or cell job function which is available for use on that day. The manager who conducts the walk-around reviews the physician’s documentation or restrictions and discusses with the employee which positions available on that day have activities which fit within the restrictions. The manager also inquires as to whether the company could make any accommodation that would allow the employee to perform each position being evaluated. If the employee, with or without accommodation, can perform the job functions in at least 50% of the available positions, then the employee will retain his/her position. If the employee fails to reach that mark, he/she is terminated. Additionally, the types of products made at the plants varies widely depending on the day selected for the walk-around. Thus, an employee could fail the 50% standard on one day and not the next. To be clear, employees with temporary physical conditions do not participate in the “walk-around” procedure and are, in fact, not subject to the 50% standard. Instead, Rubbermaid’s restrictive duty policy provides that an employee with temporary restrictions can be assigned light-duty positions for up to twenty-four weeks. The light-duty work can not exceed twenty-four weeks. Once the twenty-four week period is exhausted, the employee is placed on leave of absence for up to one year. This allows a sick or injured employee up to twelve months to attempt to recover from their physical maladies in order to return to work. Defendants make clear that both the written and unwritten portions of the restrictive duty program are applied without exception. Plaintiff asserts that the 50% standard is without justification. Defendants, on the other hand, contend that the rule facilitates job rotation, which has been shown to prevent injuries to workers. E. Plaintiffs Physical Condition Plaintiff has indicated that her physical problems include back, shoulder and neck pain and a blood disorder, specifically idiopathic thrombocytopenia purpura (“ITP”). Prior to January 1, 1995, plaintiffs doctor issued permanent restrictions on plaintiffs ability to perform overhead lifting tasks. Those restrictions are discussed in more detail in the following paragraphs. Plaintiff also advised Rubbermaid of the restriction prior to that date. Thus, plaintiffs lifting and overhead work restriction were “grandfathered in” under the restrictive duty policy. Dr. Pollock, plaintiffs expert, performed a physical examination of plaintiff on August 22, 2001. The examination included an x-ray of her cervical spine. The examination indicated that she has a good range of motion of her shoulder, but that it is painful when plaintiffs shoulder is abducted beyond ninety degrees both in flexion and pure abduction. Dr. Pollock also reviewed plaintiffs medical records and history, which documented plaintiffs back and shoulder disorders from 1989 through 1994. Her history indicated that plaintiff was first diagnosed with chronic strain of the right shoulder girdle, a musculoskele-tal disorder, in 1989. In 1992, plaintiff was given a lifting restriction of 15 to 20 pounds with no pushing or pulling. Also in 1992, plaintiff performed a Functional Capacity Evaluation (“FCE”) which indicated that she could perform all aspects of her job except for overhead lifting. At the time of Dr. Pollock’s examination in 2001, plaintiff continued to present chronic pain and weakness. He could not determine why the chronic strain had not diminished, but noted that plaintiff did not demonstrate any obvious malingering signs. Based on his examination and consideration of plaintiffs medical records, Dr. Pollock concluded that the FCE remained accurate and that the 1992 restrictions remained appropriate. He further concluded that plaintiffs disorder is unlikely to improve in the future. Beginning in 1992, plaintiff was and continues to be limited in her ability to lift objects while reaching over her head. Plaintiff remains unable to lift or carry objects weighing more than 20 pounds. She can lift this amount of weight only on an occasional basis. Plaintiff remains able to do light overhead work. If she frequently has to lift more than five pounds over her head, it causes severe pain. Plaintiff has difficulty putting on or removing clothing over her head. While she is able to engage in some twisting motions, if she turns the wrong way, it causes severe pain. Since her grandchildren were small babies, plaintiff has been unable to lift or carry them. She does, however, take care of her grandchildren one or two hours a day at least once a month. In her declaration in support of her motion, plaintiff indicates that she is in almost constant pain from her back and shoulder. At its worst, the pain prevents her from sleeping soundly for up to two weeks at a time, leading to fatigue. However, plaintiff testified that she can work in a sitting position, a standing position, stoop, walk, climb stairs, and pick up objects weighing less than 20 pounds. As previously noted, the permanent restrictions resulting from plaintiffs back, shoulder, and neck problems were “grandfathered in” under the restrictive duty policy and plaintiff was not subjected to the 50% rule analysis with regard to those restrictions. In early 1993, plaintiffs treating physician, Dr. Michael Cannon, diagnosed plaintiff as having ITP, as set out above. From that diagnosis forward, plaintiffs medical records detailed extensive office, hospital, and laboratory information relating to ITP. Plaintiffs hematology expert, Dr. Cook, reviewed plaintiffs medical records, conducted a physical examination, took a complete blood count, and examined a peripheral smear in order to assess plaintiffs past and present condition. When plaintiff was first diagnosed in 1993, she had experienced and was experiencing dramatic and unpredictable drops in her blood platelet counts. After approximately 3 years of prednisone (steroid) treatment, her platelet counts stabilized at a sub-normal level. Her platelet counts have remained sub-normal, which leads Dr. Cook to conclude that she still has ITP. Dr. Cook has treated and managed over 100 cases of ITP. Based on that experience, he has acquired pertinent knowledge of the disorder. He indicates that patients with an ITP history similar to plaintiffs have a l-in-3 chance that, at some point in the future, they will again experience a drop in platelet levels to a point at which spontaneous bleeding can occur. The risk of spontaneous bleeding arises when the platelet count drops below 20,000. When spontaneous bleeding does occur, the patient is at risk of death due either to shock resulting from external or abdominal bleeding or due to bleeding into the cranial cavity. In the case of bleeding into the cranial cavity, the mortality rate is approximately 50%. Once a patient’s platelet levels have stabilized, as is the case with plaintiff, treating physicians are not in a position to notice a drop in platelet levels until the next scheduled appointment, which are typically scheduled every three months. In addition, a treating physician may become aware of a platelet drop when the patient notes unusual bleeding and makes an unscheduled visit. When a stabilized ITP patient does experience a platelet drop, it frequently occurs abruptly, over a three to four week period. Dr. Cannon, plaintiffs treating physician, has advised plaintiff that ITP puts her at a heightened risk of internal and external bleeding. He advised plaintiff that she should not drink alcohol or take aspirin because of her condition. Dr. Cannon has advised plaintiff that she should not use heavy machinery or sharp instruments because of the greater risk presented by ITP. Consequently, plaintiff avoids using a knife to prepare food and avoids sewing with a sewing machine. Plaintiff believes, however, that she could perform professional duties requiring the use of a sewing machine. Additionally, plaintiffs brother indicated that he has observed her using a knife to prepare food and other household tasks. Dr. Cannon also advised plaintiff that travel by car could be dangerous because any accident would carry a higher risk for her than for a person without ITP. He thus advised that she avoid driving whenever possible. Plaintiff indicates that she avoids traveling alone outside the town limits of her hometown, Winfield, Kansas. Dr. Cannon also generally advised plaintiff to avoid any conduct or activities which might cause her to bleed or bruise. In response, plaintiff has restrained from pruning and trimming the plants in her garden because of the sharp tools needed for these tasks; she does not play with her dog in the manner she previously enjoyed due to the risk of an inadvertent scratch or bite; and plaintiff avoids developing romantic relationships with men because intercourse poses a heightened risk of internal bleeding. Plaintiff, in response to defendants’ motion for summary judgment, introduces further expert testimony to which defendants object for the same reasons discussed above. The experts are Wilbur Swearingin, an occupational rehabilitation expert, and Dr. Randall Chambers, an expert in ergonomics and human-machine interfaces. Defendants have filed a motion to exclude the testimony of these two experts which the court has yet to consider. However, the court concludes that it need not rule on the admissibility of this expert opinion for purposes of the present motions because the opinions offered by these experts will not assist plaintiff at the summary judgment stage. Mr. Swearingin concluded that plaintiffs restrictions substantially reduce her access to the labor market in occupations for which she is qualified and that without accommodation, plaintiff would have a difficult time finding employment in her geographic area. The court finds, for purposes of summary judgment, that it is uncontroverted that plaintiffs restrictions will reduce her access to jobs, especially without accommodations. Because this fact is sufficiently obvious for present purposes, Swearingin’s testimony is unnecessary. Dr. Chambers testified that many of the positions at the Winfield plants do not require knife use and that there were some stations that plaintiff could work at with no modification and that other stations could be easily modified to fit plaintiffs restrictions. Chambers’ testimony is unnecessary at this stage because the court has already determined that the number of positions at which plaintiff could work, with or without reasonable accommodation, is an open issue. In fact, as noted, the number of positions that do not require knife use at all remains an open issue. The testimony of one expert does not establish an uncontroverted fact. Thus, plaintiff will be no better off with the inclusion of Chambers’ testimony at this summary judgment stage. An important issue in this case is when Rubbermaid became aware of plaintiffs restrictions resulting from the ITP. Plaintiff did receive written restrictions from Dr. Cannon outlining much of the information laid out above, including that plaintiff was not to use any sharp tools. Janice Marr testified that the restrictions were given to plaintiffs immediate supervisor and placed in her production file in April 1995, but that the human resource department did not learn of the restrictions until January 1999. Marr Deposition, Defendants’ Exhibit 9, at 14. Marr thus testified that, as of January, 1999, she had not seen any proof of plaintiffs no-knife-use restriction. The restrictions were given to Marr, in January 1999, by Lee Ann Cassi-day, another of plaintiffs supervisors in January 1999. However, Cassiday testified that the restrictions were dated April 1993. Cassiday Deposition, Plaintiffs Exhibit K, at 15. Additionally, Marr testified that Rubbermaid could have known of the restrictions prior to April 1995 and that Rubbermaid became aware when plaintiff gave the restrictions to her immediate supervisor. Marr Deposition, Plaintiffs Exhibit M, at 5-6. Also interesting is the testimony of Deanna Tannehill, yet another of plaintiffs supervisors. Tannehill testified that when plaintiff came into her area, plaintiffs prior supervisor, Don Wilson, informed her of plaintiffs no-knife-use restriction and explained the reason for the restriction. Tannehill Deposition, Plaintiffs Exhibit 0, at 7. While Tannehill could not remember the exact time that plaintiff began working for her, Tannehill is listed as plaintiffs supervisor on an employee review dated October 20, 1994. Id. at 9. This clearly suggests that Tannehill was plaintiffs supervisor prior to April 1995 and that supervisory staff at Rubbermaid were aware of the restrictions prior to January 1995. At the very least, this question remains an open issue of fact. F. Plaintiffs Positions and Machine 104 At whatever point in time plaintiff presented her ITP-related restrictions to her supervisor, she was allowed to limit her rotation between various machines. In fact, plaintiff herself testified that, in January 1999, she was allowed to work at just one machine, machine number 104. Plaintiffs Deposition, Defendants’ Exhibit 4, at 241. She further testified that she did not rotate from machine to machine. Id. at 243. Plaintiffs position on machine number 104 did not require cutting or overhead lifting. It was a sitting position. Machine 104 manufactured small parts, such as cooler handles. The handles would come down a conveyor belt, and the employee’s job was to place the handles into a box. Despite plaintiffs seemingly unambiguous statement that she worked only on 104, there is contradictory evidence from her supervisors on that point. Lee Ann Cassiday indicated that during 1999, plaintiff was often assigned to machine number 109. Cassiday Deposition, Plaintiffs Exhibit H, at 13. Yet another supervisor, Richard Martinez, indicated that plaintiff was not limited to one machiné. While the time line is not clear, Martinez clearly referenced the no-knife restriction and indicated that plaintiff primarily worked 104, but also machines 109 and 110, “quite often.” Martinez Deposition, Plaintiffs Exhibit A, at 6. The reference to the no-knife restriction makes the time under discussion relevant even if he didn’t specifically indicate a date. He also indicated that she possibly worked on machine numbers 105, 107, 118, and 119. To the extent that plaintiff did remain on the 104 position without rotating, other production workers were precluded from rotating to that position. Although there were other production workers who could not rotate to every position, Marr does not know of any other production worker assigned to one machine and not required to rotate. Nor was plaintiff aware of any other employee who was allowed to work at just one machine. In fact, plaintiff testified that the other employees rotated from one position to another every hour, but that she did not rotate with them. Clearly, an issue remains as to the extent to which plaintiff worked solely on 104. The court recognizes the apparent clarity of plaintiffs statements, but also notes an apparent inability on plaintiffs part to fully grasp the questions that were put to her through an interpreter. Given that her supervisors all suggested that she worked, at least to some small degree, on other machines, the court cannot conclude that 104 was the sole machine on which plaintiff worked after the no-knife restrictions were put in place. Plaintiff did indicate that “she did not know” of any other machines that fit her restrictions. Plaintiffs Deposition, Defendants’ Exhibit 4, at 321. But again, the court cannot conclude that no other machines fit within her restrictions given the testimony of the various supervisors to the contrary. Incidentally, machine 104 was replaced in mid-1999, but the replacement machine had roughly the same operator tasks as the previous model. The court does note that, with the exception of one review in March 1996, plaintiff usually received performance ratings of average, good, or acceptable. Ms. Marr admitted that plaintiff “satisfactorily performed” the tasks she was assigned even during the period from December 1998 through January 1999. Additionally, Mr. Martinez testified that plaintiff did the work she was assigned during the last few months she worked at the Winfield plants. During the same period, Ms. Cassiday testified that she had no trouble with plaintiffs work performance and that plaintiff was an average employee. G. Plaintiffs Removal from Active Work Defendant Marr testified that the fact that plaintiff was left in her position from at least April 1995 (potentially earlier depending on when plaintiff provided the no-knife restrictions to her supervisor) to January 1999 was an oversight on the part of Rubbermaid. Defendants contend that the oversight was discovered in December 1998 when an employee complained of plaintiff not being required to rotate. See Marr Deposition, Defendants’ Exhibit 5, at 285. The complaining employee did suggest that plaintiff not being required to rotate was unfair and a show of favoritism, preventing others in plaintiffs rotation cell from being able to work in the less demanding position. After the complaint, Marr investigated and learned that plaintiff had worked on machine 104 and, at least at times, was not required to rotate. Marr further discovered that plaintiffs human resource file did not contain any notation of a no-knife restriction. After further inquiry, Marr learned that plaintiffs production floor file contained a copy of the restrictions which Marr indicated were dated April 1995 (although the court has previously noted some discrepancy as to the April 1995 date). Given the no-knife restriction, Marr indicated her belief that plaintiff would be excluded from approximately 70% of the positions at the Winfield plants. As noted previously, other Rubbermaid supervisors have estimated that plaintiff would be excluded from fewer than 50% of the available machines, thus creating a fact issue. Plaintiff did testify, however, that she did not know of any other employee who did not use a knife and that she thought every employee used a knife. As a result of Marr’s investigating plaintiffs situation, a meeting was held on or about January 13, 1999. The meeting was attended by plaintiff, Ms. Marr, Somsy Sengvixay (as plaintiffs interpreter) and other supervisors. During the meeting, Marr asked plaintiff to go home and get updated restrictions from her doctor within two weeks. At the time of the meeting, Marr had already reached her opinion that the no-knife use restriction would exclude plaintiff from more than 50% of the available production worker positions at the Winfield plants. After the meeting, plaintiff told her brother that she did not think she could “keep the heavy job” at Rubbermaid and that Rubbermaid had sent her to go to the doctor. Plaintiff, accompanied by her brother, did see her doctor the next day. Plaintiff told her doctor (through her brother) that Rubbermaid wanted to know her present condition. Plaintiffs brother did not talk to Dr. Cannon about the cut-resistant equipment utilized by Rubbermaid. He did not think that it was the doctor’s responsibility to protect plaintiff at work. Plaintiff asked her brother to request that Dr. Cannon write a note indicating her current restrictions. According to plaintiff, the resulting note recommended that plaintiff not return to work. Plaintiff obtained the note approximately three days after the appointment and took the note to Debbie Littrell. Plaintiff indicated that since the meeting she had been working on machine 104, but that upon Littrell’s receipt of Cannon’s letter on January 25, 1999, Littrell told her to stop work. That was plaintiffs last day of work at Rubbermaid. Plaintiff was placed on leave of absence beginning January 27, 1999. This leave of absence was instituted because plaintiff had exhausted the maximum twenty-four week temporary light duty available under Rubbermaid’s restrictive duty program. This introduces some confusion. The twenty-four week light duty assignment portion of the restrictive duty program applies only to employees with temporary restrictions. Conversely, a 50% rule is triggered only after Rubbermaid determines that a medical restriction is permanent. Accordingly, Rubbermaid’s treatment of plaintiff suggests that the company believed that her restrictions were temporary. However, Marr testified and the record tends to reflect that Rubbermaid was aware that plaintiffs restrictions were permanent prior to the time plaintiff was placed on leave of absence. See Marr Deposition, Plaintiffs Exhibit I, at 2. To clarify, the court finds it uncon-troverted that Marr knew plaintiffs restrictions were permanent at least by the time plaintiff was placed on leave of absence. In the end, Marr did indicate that plaintiff was terminated because she could not operate 50% of the available positions at the Wheatfield plants. Defendants contend that plaintiff was, in fact, treated more favorably than' was otherwise required by the restrictive duty program. This is true to the extent that a person with a permanent restriction who could not pass the 50% standard was terminated immediately and was not entitled to the one year leave of absence. Thus, plaintiff, assuming Rubbermaid knew the restriction was permanent in January 1999 (as the record suggests), was given a leave of absence which was not required under the policy. However, plaintiff notes that a worker found to have a permanent restriction was entitled to a walk-around to determine whether that worker complied with the 50% standard. In this case, plaintiff contends that Marr made a determination herself that plaintiff failed the 50% test without following the walk-around procedure and that plaintiff was thus treated less favorably than other workers with permanent restrictions. At the end of the one-year leave of absence, on January 27, 2000, plaintiffs employment was terminated. At that time, plaintiff received a letter, signed by Cynthia Konrath indicating this fact. Plaintiff contends that she may have been terminated in January, 1999. She cites a December 30, 1999 e-mail message to Ms. Littrell, wherein Marr states: We do have a policy where each associate must perform 50% of all the positions available throughout the company or have their employment terminated.... In Khammoung’s ease, I feel due to her permanent restrictions and no knife use, there would be hardly any machines she can do (drastically less than the required 50%) and that is why she is not working and hasn’t been for a year now, is because we cannot accommodate her. Plaintiffs Exhibit E, at 17. The court concludes that plaintiff has not established a fact issue on this point. It is clear to the court that plaintiff was placed on leave of absence in January 1999 and was terminated one year later in January 2000. The noted e-mail is consistent with this conclusion. Plaintiff is not aware of any other employee who was allowed a leave of absence greater than one year. Several other employees lost their jobs as a result of an inability to comply with the restrictive duty policy. Similarly, other employees were terminated at the end of a one-year leave of absence. H. Plaintiffs Disability Claims In 1999, plaintiff applied for, and received, short-term disability benefits. Plaintiff had also previously applied for short-term disability. Her brother, Ron Southammavong, helped her with that previous application. Similarly, he had some involvement in her recent application. He attended a meeting with plaintiff and Litt-rell after plaintiff was placed on leave of absence in January 1999. Southamma-vong asked how plaintiff would have any income if she was off work and asked if the company would offer her any short term benefits. Southammavong indicated that Littrell told him that short-term disability was a benéfit the company provided for its employees and that it might be available for plaintiff. Littrell did not tell plaintiff’s brother that plaintiff was required to apply for short-term disability but only mentioned the possible availability of the benefit. Littrell gave Southammavong the initial idea, but did. not tell him that plaintiff had to seek short-term disability. Littrell did, however, indicate that such an application would be appropriate and assisted plaintiff and Southammavong in filling out part of the necessary form, including instructing plaintiff to indicate that she was “totally disabled.” See Southammavong Deposition, Plaintiffs Exhibit R, at 6. Plaintiff, on the other hand, did not indicate that Littrell offered any assistance in filling but the short-term disability application. After receiving the form from Litt-rell, plaintiff indicated that she took it home to complete. Plaintiff indicated she understood the form and filled it out with her brother’s help, and clearly, the signed form did indicate that she was claiming a total disability. Plaintiff understood that the short-term disability would continue for only six months and she marked her calendar reflecting when the period began. Plaintiff received $109/week by check. Plaintiff indicated that she spent the money and did not tell anyone that she believed she should not be on short-term disability. During the six months plaintiff received short-term disability, she never told anyone she wanted to return to work. In fact, she did not communicate with Rubbermaid at all during the time she was receiving the payments. Either shortly after or just prior to the expiration of plaintiffs benefits, Littrell received a communication on plaintiffs behalf requesting that plaintiff be allowed to return to work. Then, plaintiff and her son met with Littrell. The son said that plaintiff had been working successfully on machine 104 when she was told to go home and he didn’t understand why she would not be allowed to return to that position. During the same time period, plaintiffs brother met with Littrell asking whether plaintiff could return to work or how to otherwise proceed. Littrell provided plaintiffs brother with forms so that plaintiff could apply for long-term disability. Rubbermaid’s long-term disability program is administered by CNA Insurance Company (“CNA”). According to plaintiff, Littrell gave her the forms on or about September 9, 1999. Littrell informed her she should fill out the application for long term benefits once the short-term was exhausted. Plaintiff took the form to Dr. Cannon who indicated that plaintiff was unable to perform either her job or any other work. Further, a check mark on the long-term disability form indicated that plaintiff was “totally disabled.” Although plaintiff recognized her signature on the form, she could not remember the form or who put the mark indicating total disability. Her brother did, however, explain and translate the form before she signed it. Plaintiff spoke with Littrell on December 24, 1999, and told her that she had not received an answer on her long-term disability application. Littrell advised plaintiff that she would check into the application and get back to plaintiff with the results. Littrell then received a phone call from a CNA representative advising that CNA intended to deny the request. In order to help plaintiff and help CNA understand the situation, Littrell agreed to talk with a Rubbermaid safety manager and type up a document clarifying the situation. She did, in fact, create a document explaining the job of a production worker. She wanted CNA to have a thorough understanding of the position in reaching its benefit decision. Sometime in December 1999, plaintiff learned her application for long-term disability had been denied. Plaintiff received a letter from CNA to that effect. Littrell recalls meeting with plaintiff and her brother and indicating that plaintiff could not return to work as long as she had a permanent restriction prohibiting knife use. Plaintiff also applied for Social Security disability benefits. The statement plaintiff submitted to the Social Security Administration states that plaintiff became unable to work due to a disabling condition on January 25, 1999. Plaintiffs daughter, Angel Praseuth, assisted plaintiff in applying for Social Security benefits. The disability application was denied. Although plaintiff does not know whether she represented to Social Security that she was entirely unable to do any work, she indicated that she and Angel discussed what should be said in the application. Because plaintiffs ability to speak, read, and write English is limited, she relied heavily upon her daughter’s assistance when she applied for Social Security disability benefits. Angel Praseuth has communicated with her mother in the Laotian language throughout her life. Angel currently resides in California, but she returned to Winfield in late January 2000 for several days to provide whatever help she could to her mother. The visit was initiated because plaintiff had learned that Rubbermaid was in the process of terminating her employment. Angel took plaintiff to the Social Security office in Winfield to see if she might qualify for benefits. Angel thought her mother might qualify for disability benefits because she had been labeled disabled in the past and because she believed that Rubbermaid was terminating plaintiff because of her medical conditions. This led Angel to believe that Rubbermaid considered her mother to be disabled. Angel also knew that her mother had applied for and received short term disability benefits from Rubbermaid. And Angel had been told by Littrell that plaintiff should qualify for long term disability benefits. Further, Littrell told Angel that Rubbermaid could not accommodate plaintiff. Based on the foregoing, Angel concluded that plaintiff might qualify for Social Security disability coverage and thus helped her fill out the paperwork to see if she would qualify for those benefits. As far as Angel knows, she is the only person who helped plaintiff apply for the benefits. In any event, Angel advised her mother it was acceptable to sign the documents representing that she was “unable to work because of [a] disabling condition” and that she was “still disabled.” Angel asserts that in her mind the statements were accurate since plaintiff could not return to work at Rubbermaid given the medical restrictions. Both Angel Pra-seuth and plaintiff indicate that they did not attempt to purposely misstate facts about her condition or her ability to work in her effort to acquire benefits. Plaintiff notes that she also filed a document with Social Security providing detailed information about her condition and her ability to work, including an accurate description of her medical condition, the circumstances which resulted in her loss of employment, her failed efforts to return to work, and her current employment status. I. Additional Facts Relating to Plaintiffs Ability to Work at Rubbermaid While plaintiff indicated that “everyone” at Rubbermaid used a knife at work, other employees indicated that there are an unknown number of positions at the Wheat-field plants which do not require knife use. Additionally, some positions allow a worker to select between hammer or knife use. It is uncontroverted that Rubbermaid does provide protective equipment to those using knives. Plaintiff is not aware of any protective equipment other than that provided by Rubbermaid which would provide additional protection. Like plaintiffs son, plaintiffs brother also met with Littrell on a number of occasions to discuss plaintiffs return to Rubbermaid. Defendants assert, at SOF 95, that plaintiff would only return to work if she could work on machine 104. Littrell Deposition, Defendants’ Exhibit 3, at 101-107. The court concludes, after reading Littrell’s remarks regarding both plaintiffs brother and son in toto, that Littrell’s testimony does not support plaintiffs assertion. While the testimony is somewhat unclear at certain points, the conclusion in each instance is that the brother and son were simply inquiring as to why plaintiff could not return to machine 104 since she had been successfully working on that machine. They were not demanding that plaintiff be returned to 104 exclusively. The court recognizes that Littrell does indicate, such as at page 103,11. 23-25 that a demand was made that plaintiff be returned to the same position. But at page 101, 11. 20 — page 102, 11.2, Littrell gives a clearer picture which the court accepts. See also page 107, 11. 8-16. In short, the court cannot find it an uncontroverted fact that plaintiff, through either her brother or son, demanded to be returned to only one machine. Plaintiff did tell her brother that there were many things she could do at Rubbermaid, but did not provide any specifics. Angel Praseuth spoke with Littrell on January 19, 2000. She asked Littrell whether there was any accommodation Rubbermaid could make for plaintiff. She did not, however, suggest any specific accommodations. On February 2, 2000, plaintiff sent a letter to Rubbermaid asking to be allowed to return to work and requesting reasonable accommodations so that she could work safely. The letter was signed by Angel Praseuth on behalf of her mother and was prepared by plaintiffs counsel’s office. The letter was specifically sent to defendant Denton, Rubbermaid’s general manager, and Rubbermaid’s director of human resources. The letter was actually received by Cynthia Konrath, who forwarded the letter to Rubbermaid’s in-house counsel for response. No response was provided. Additionally, plaintiff and her son spoke with Debbie Littrell on January 21, 2000. This is the conversation where plaintiffs son questioned Littrell about machine 104 and wanted to know why plaintiff wouldn’t be able to return to work in that position. Littrell explained that everyone at Rubbermaid works with knives and plaintiffs restrictions could not be accommodated. The court again notes that some of the record suggests that there are positions at Rubbermaid which do not require knife use. At defendants’ SOF 100, defendants state that allowing plaintiff to work on only machine 104 would cause undue hardship because Rubbermaid’s policies were not being applied consistently, there was an increased risk of injury absent rotation, and employees suffered morale problems when they were not permitted to rotate to the less demanding positions offered by machine 104. It is uncontroverted that defendant Marr so testified. It is also uncontroverted that machine 104 was replaced in February of 1999. The relevance of this fact statement seems a bit dubious for several reasons. First, the myopic focus on machine 104 seems somewhat misplaced if, in fact, there are a number of other positions that would accommodate a no-knife use restriction. Second, it appears the removal of machine 104 is largely irrelevant since at least one supervisor indicated that the replacement has essentially the same positions. Further, the fact of morale problems is not uncontroverted. The supervisor of the cell of which machine 104 was a part testified that he was able to structure the cell rotation so that plaintiffs doing only rework and working on the one machine did not make it more difficult for the other employees in the cell. Wilson Deposition, Plaintiffs Exhibit N, at 3-4. Finally, the defendant cannot reach a conclusion that undue hardship exists as a statement of fact and the court will not accept such a conclusion as a factual characterization. Plaintiff indicated she did not know of any other employee who did not use a knife. However, she also testified that, even with the no-knife use restriction, she was able to perform the regular job of a production worker at the Wheat Road plant. In fact, she did act as a production worker with a no-knife use restriction between 1995 and 1999. Littrell indicated that she did not know if anyone checked to see if there were positions outside production, such as in the warehouse, where plaintiff could work within her restrictions. Marr testified that she mentally reviewed the positions in each of the cells of the Winfield plants to determine how many positions plaintiff might be able to perform. She assumed that plaintiff would have been required to use a knife at each position (she does not mention hammer use options) and that plaintiff would have to rotate throughout the production cells. Marr testified that there was no formal walk-around done for plaintiffs permanent restriction because it “took away the major functions of producing the product that she was hired for,” so the study would not be relevant. As the court has previously noted, other Rubbermaid employees have indicated that well over 50% of the positions at the Winfield plants could be performed without knife use. J. Facts Pertaining to Defendant’s Mitigation of Damages Argument Since being placed on leave of absence in January 1999, plaintiff has not attempted to get any training to perform any other kind of work. As of December 6, 2000 (date of deposition), plaintiff had not had any job interviews since she was terminated by Rubbermaid. From January 27, 2000 to her deposition, plaintiff indicates that she looked through the Winfield paper’s want ads 200 times searching for a job. She never applied for any of the jobs advertised because of the low wages. Plaintiff has not read the want ads in the Wichita paper in her attempt to find a new job. Plaintiff has, however, been to the Kansas Job Service Center to view then-list of available jobs. At the time of her deposition, plaintiff could not articulate any plans to seek employment in the future. She did, however, provide a declaration that she has made numerous attempts to find a job in 2000, 2001, and 2002, although she has yet to receive an interview. K. Facts Pertaining to Plaintiffs Claims Against Individual Defendants Defendant Denton testified that he had no knowledge of plaintiff or the position she worked in prior to 1999. While he was president of Rubbermaid Home Products Division in 1999 and 2000, Denton was unaware of any policy requiring that production workers be able to work at 50% of the work stations in any given facility. Similarly, Denton was not aware that plaintiff was told she must comply with this standard in order to retain her position. Plaintiff was not personally aware of Denton’s position, but indicated that Den-ton’s failure to respond to her written request for reinstatement with accommodation was wrongful. Plaintiff has never had a conversation with Cynthia Konrath and does not know why she was named a defendant in this lawsuit. Angel Praseuth had discussions with her mother as to why Littrell was involved in the lawsuit, and concluded that it was essentially because her position as a primary contact made her responsible. In regard to her role as a primary contact, Littrell never refused to answer any questions that plaintiffs brother asked. In fact, Littrell always helped plaintiffs brother whenever he requested assistance. Finally, plaintiff has not spoken to Marr since the January 13, 1999 meeting when plaintiff was told to leave and get updated restrictions. L. Facts Pertaining to Newell-Rub-bermaid’s Position as Defendant The Winfield Rubbermaid facilities had a plant manager who reported to the Vice President of Operations of Rubbermaid Home Products who reported directly to defendant Denton, the President of the company. Denton reported to the CEO of Rubbermaid, Inc. who in turn reported to the board of directors for Newell-Rubber-maid, Inc. After Newell-Rubbermaid merged in March of 1999, efforts were made to make Rubbermaid more profitable, to make the factories more efficient, to upgrade equipment, and to assess and improve the distribution network, among other things. The term “Newellization” was coined to reference this process. Essentially, “Newellization” is an ongoing process by which Newell-Rubbermaid tightens the finances of the new company, improves customer service and marketing, exercises financial controls over the subsidiary, reduces inventories and improves operational efficiency. Mr. Marotti testified that “Newellization” amounts to taking control of the newly acquired company and modifying the way it does business to make it more profitable. In his opinion, Rubbermaid was and is undergoing the “Newellization” process. After the merger in March 1999, Rubbermaid, Inc. continued in existence and maintained its headquarters in Wooster, Ohio. Newell-Rubbermaid has a separate headquarters in Freeport, Illinois. Littrell testified she has received documents indicating that her employer was Newell-Rubbermaid. The documents include paychecks, pay stubs and W-2 forms. The documents began indicating that Newell-Rubbermaid was the employer in about mid-1999. This was, of course, approximately the time of the merger. Littrell did not observe an unusual number of changes in the way the Winfield facilities were operated following the merger. Nor were there a significant number of changes in management personnel. This is not to say, however, that “Newellization” was not occurring. Marr testified that the “actual name” of her employer was Rubbermaid Home Products. However, she notes that her pay stubs began noting Newell-Rubbermaid as her employer in the 1999 time frame. It is uncontroverted that Newell-Rubbermaid exercised control over the payroll for workers at the Win-field facilities. Further, Newell-Rubber-maid prepared employee newsletters, and provided benefits and retirement programs for the workers at the Winfield facilities. It is also uncontroverted that former Newell, Inc. managers have been transferred among various subsidiaries, including Rubbermaid, in the “Newellization” process. At least in Ms. Konrath’s case, the job duties of managers assigned to the various subsidiaries are determined by Newell-Rubbermaid. While Konrath was human resource manager at the Winfield plants, her job duties were described on a Newell Company document. The same document had described her job duties in her prior job, when she was assigned to a different Newell-Rubbermaid subsidiary. Konrath’s role in transferring from a New-ell Company position to the position at t