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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RICHARD GOEDEN,
Plaintiff,                                                                                         Case No.   1:11-CV-252-BLW
v.                                                                                                 MEMORANDUM DECISION
AND ORDER
DARIGOLD, INC., a Washington corporation
Defendant.
INTRODUCTION
The Court has before it a motion for summary judgment filed by defendant Darigold and a
motion for partial summary judgment filed by plaintiff Richard Goeden.  The Court heard oral
argument on both motions on November 14, 2012, and took the motions under advisement.  For
the reasons expressed below, the Court will deny Darigold’s motion and grant in part Goeden’s
motion.
FACTS
Goeden was fired by Darigold after working there for about 18 years.  In this lawsuit he
claims he was fired because of his disability and age.  Goeden was 62 at that time, and had been
hearing impaired since 1980.
Goeden was originally hired by Darigold in 1992 to work in their Caldwell plant as a
Maintenance Mechanic.  He held that position for 12 years, and then transferred to Darigold’s
newer milk processing plant in Jerome in October 2004.
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He worked there as a Maintenance Mechanic for over two years until January 2007, when
he slipped and fell on some ice at the plant, causing a shoulder injury that required surgery.  To
accommodate Goeden’s injury, Darigold created a new Preventative Maintenance position for
him that required less physical exertion.
In 2009, Darigold decided to reduce the workforce at the Jerome plant.  In implementing
that decision, Plant Manager Clay Powell targeted Goeden’s Preventative Mechanic position for
elimination.  This meant that Goeden, with 17 years of experience, would be laid off while
another maintenance worker with just two years of service would be retained.  Darigold’s
corporate officials balked at Powell’s plan, and so informed him on September 11, 2009.  That
same day, Powell told Darigold’s Director of Human Resource Operations that Goeden was a
safety risk in the plant.  The Director responded that Goeden should be evaluated for fitness for
duty.
Before requiring Goeden to undergo a fitness-for-duty exam, Darigold offered him a
severance package.  When he turned it down, Darigold required him to undergo a fitness-for-duty
exam before they would allow him to transfer back into his Maintenance Mechanic position.
On November 11, 2009, Goeden was sent for evaluation by a physical therapist and a
physician’s assistant.  Goeden passed the physical part of the exams with regard to his shoulder
and recent knee surgery.  But physician assistant William Jacobs stated that
[w]ith regard to the essential functions of his position, I question whether Mr. Goeden
can listen to machines and other devices while they are in operation in order to locate
possible causes of trouble.   I also feel after evaluation that he may not be able to
effectively communicate with supervisors and coworkers via a radio.   Mr. Goeden
admits that he can hear a noise from a radio that is used for communication, however
he has difficulty in recognizing many of the words . . .                                             .  In my opinion, Mr. Goeden
cannot currently perform the essential functions of this position; however, [he] could
be qualified with an improved quality of hearing prosthesis.  Perhaps an audiologist
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could help Mr. Goeden with this.
See Jacobs’ Letter (Dkt. No. 53-23).  The results of this evaluation surprised Darigold.  For years,
Goeden had been performing the essential functions of these positions.  His hearing had been
tested by Darigold annually and it remained statistically steady since 2004.  There is no evidence
of any recent deterioration of his hearing that would justify a concern that he was unfit for the
position.  In an email sent to Powell from Darigold’s Human Resources Operations Manager on
November 13, 2009, the Manager wrote:   “Interesting, [Goeden] was declared not fit for duty -
but only because of his hearing impairment!”
Pursuant to Jacobs’ recommendation, Darigold required Goeden to undergo an evaluation
by an audiologist.  On December 2, 2009, Goeden saw Greg Schroeder, a hearing instrument
specialist, who conducted various hearing tests.  Those tests were evaluated by Schroeder’s
father, an audiologist.  He sent a letter of evaluation to Darigold dated December 22, 2009, stating
in pertinent part as follows:
[Goeden] has hearing, but no ability to understand speech and language unless the
individual is facing him.  His ability to effectively communicate with co-workers and
supervisors is extremely handicapped due to the lack of any speech discrimination
scores.  There are certainly tasks he can perform, however communicating over the
radio or telephone appears to be impossible.  It is our opinion that he cannot perform
the requirements listed in his job description.
See Williamson Declaration (Dkt. No. 44) at Exh. 7.  On January 4, 2010, thirteen days after
receiving Schroeder’s letter, Darigold fired Goeden in a letter that reads in pertinent part as
follows:
The results of Mr. Schroeder’s evaluation were unchanged from those of Mr. Jacobs
.   Mr. Schroeder provided a written evaluation in which he concluded that you
were unable to fulfill the requirements of the Maintenance Mechanic position because
of your hearing deficit . . .                                                                          .  Because you are unable to fulfill the requirements of the
Maintenance Mechanic position, you will not have the option of transferring to that
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position. This means that . . . your employment with Darigold will be terminated,
effective today.
See Juarez Declaration, Exh. TT (Dkt. 53-32).  Darigold made no attempt to interact with Goeden
after receiving notice from Jacobs and Schroeder that Goeden’s hearing impairment rendered him
unfit for the job.  Darigold also made no attempt to follow up with either Jacobs or Schroeder to
determine if any reasonable accommodation would allow Goeden to perform the essential
functions of his job.
Goeden responded by filing this lawsuit, alleging that he was fired because of his
disability and age in violation of the Americans with Disabilities Act (ADA), the Age
Discrimination in Employment Act (ADEA), and the Idaho Human Rights Act (IHRA).  He also
alleges that his termination constitutes a breach of contract.  In his ADA claim, Goeden argues
that Darigold (1) failed to engage in the required interactive process in good faith; (2) failed to
provide him with a reasonable accommodation; and (3) subjected him to an improper medical
exam.
Darigold has filed a motion for summary judgment on all claims.  Goeden has filed a cross
motion for partial summary judgment on his claims that he was subjected to an improper medical
exam and that Darigold failed to engage in the interactive process.
ANALYSIS
Judicial Estoppel
Darigold seeks a summary judgment ruling that Goeden is estopped from claiming he can
perform the essential functions of his job with accommodations.  Darigold argues that Goeden, to
obtain disability benefits, represented that he could not perform the essential functions of his job,
and is therefore now estopped to claim otherwise.
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Darigold actually makes two related arguments here that raise two different forms of
estoppel.  Darigold argues first that Goeden’s statements to the Social Security Administration
(SSA) trigger estoppel.  That argument is based on judicial estoppel.  See Cleveland v. Policy
Management Systems Corporation, 526 U.S. 795, 807 (1999).  Darigold also argues that
Goeden’s statements to a private insurer, Standard Insurance, trigger estoppel.  That argument is
based on equitable estoppel.  Keller Foundation/Case Foundation v. Tracy, 696 F.3d 835, 847
(9th Cir. 2012).  The Court will consider each, beginning with the argument based on judicial
estoppel.
In Cleveland, the district court had awarded the employer summary judgment on an ADA
claim because the employee had earlier represented to the SSA that she was “totally disabled.”
The district court held that this representation estopped the employee from arguing that with
reasonable accommodations, she could perform the essential functions of her job.
The Supreme Court reversed.  Cleveland, 526 U.S. at 807.  Its decision explained that the
SSA does not take into account the possibility of “reasonable accommodation” when it
determines that an individual is disabled.  Id. at 803.  Because the employee’s SSA application
did not state that she was unable to perform even with reasonable accommodations, the Supreme
Court reversed the summary judgment in favor of the employer.  The Ninth Circuit has similarly
reversed a summary judgment in favor of an employer where the employee’s SSA determination
did not consider whether she could perform the job with reasonable accommodations.  Cox v.
Wal-Mart Stores Inc., 2011 WL 2632086 (9th Cir. 2011) (unpublished disposition).
That same circumstance exists here.  There is no evidence that Goeden made statements to
the SSA that he could not perform his job even with reasonable accommodations.  Thus, the
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Court will deny Darigold’s motion for summary judgment based on Goeden’s statements to the
SSA.
Darigold argues, however, that Goeden’s statements to obtain benefits under the policy
issued by Standard Insurance go much further and should result in estoppel.  Darigold asserts that
by seeking benefits under that policy, Goeden essentially represented that he could not perform
the job’s “material duties,” which are defined under the policy as “the essential tasks, functions,
and operations . . . that cannot be reasonably modified or omitted.”  See Exhibit 36 (Dkt. No. 89-
4).
But even if Goeden’s application to Standard Insurance constituted a representation that
he could not perform the essential functions of the job even if those functions were reasonably
modified, he also represented expressly to Standard Insurance on July 8, 2010, that “I still believe
that I am able to work with reasonable accommodations and I have been seeking other jobs since
my termination.”  See Goeden Letter to Standard Insurance (Dkt. No. 78-6).  Standard Insurance
did not award long term disability benefits to Goeden until September of 2010, see Hilgenfeld
Declaration (Dkt. No. 46-9), and did so despite knowing that Goeden believed he could work
with reasonable accommodations.
The doctrine that Darigold is advancing - to prevent Goeden from raising a claim here
that contradicts a claim he made to a private insurance company - is equitable estoppel.  Keller,
696 F.3d at 847.  That doctrine “prevents a party from asserting a strict legal right after another
party has been led to form a reasonable belief that the right would not be asserted.”  Id.  In this
sense, equitable estoppel functions as a “shield.”  Id.  Because equitable estoppel effectively bars
a party from asserting a legal right, its application is “strictly limited by equitable considerations
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and courts must apply it with caution and restraint.”  Id.
Here, the Court can find no equitable reason to apply the doctrine.  Goeden did not
mislead Standard Insurance - he told them he could work with reasonable accommodations.
Knowing this, Standard Insurance nevertheless made the decision to award benefits.  Reviewing
the doctrine’s applicability with “caution and restraint,” the Court cannot find that it applies here.
Medical Exam
The parties have filed cross-motions for summary judgment to resolve the issue whether
Darigold properly required Goeden to undergo the medical exams.  Under 42 U.S.C. §
12112(d)(4)(A), an employer may not require a medical examination to determine whether an
employee is disabled “unless such examination or inquiry is shown to be job-related and
consistent with business necessity.”  The business necessity standard “is quite high, and is not to
be confused with mere expediency.”  Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir.
2010).  Nevertheless,  the business necessity standard
may be met even before an employee’s work performance declines if the employer
is faced with “significant evidence that could cause a reasonable person to inquire
as to whether an employee is still capable of performing his job.  An employee’s
behavior cannot be merely annoying or inefficient to justify an examination;
rather, there must be genuine reason to doubt whether that employee can perform
job-related functions.”
Id. (quoting Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir.1999)).  As the
“reasonable person” language suggests, this test is objective.  Id.  The employer bears the burden
of demonstrating business necessity.  Id.
Section 12112(d)(4)(A) prohibits employers from using medical exams as a pretext to
harass employees or to fish for nonwork-related medical issues.  Id.  Thus, the employer must
show that “the examination or inquiry genuinely serves the asserted business necessity and that
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the request is no broader or more intrusive than necessary.”    Conroy v. New York State Dept. of
Correctional Serv., 333 F.3d 88, 97 (2d Cir.2003) Id. at 98.
In this case, there are facts suggesting that Goeden was placed in the Preventative
Maintenance position to accommodate his shoulder injury because this position was less
physically demanding than his prior position as Maintenance Mechanic.  A reasonable employer
could have a “genuine reason to doubt” whether Goeden could return to the very position that he
was unable to handle previously.  Goeden submits evidence that the two jobs required the same
physical exertion, but the Court cannot so find as a matter of law given the fact that the
Preventative Maintenance position was created as an accommodation for Goeden's shoulder
injury.  Thus, there is an issue for the jury whether Darigold could order Goeden to undergo a
medical exam to determine whether his past shoulder injury rendered him unfit for the
Maintenance Mechanic job.
The harder question is whether the purpose of that same medical exam could expand to
include an evaluation of Goeden’s hearing impairment.  The case law cited above makes clear
that the exam must be no broader than necessary, and cannot be used to fish for a non-work
related justification to fire an employee.  Goeden worked for 27 months as a Maintenance
Mechanic with no hearing-related issues, and this continued as he worked in his new position.
The work of both jobs takes place largely in the same area of the plant.  Darigold tested him
annually for hearing loss, and those tests showed no change in his hearing over that time.  This
evidence demonstrates that at the time Goeden was fired, his hearing deficit had not created any
safety or performance issues.
Darigold responds with evidence that three years prior, when Goeden fell and injured his
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shoulder, he had difficulty communicating his location by radio, leading to some delay in finding
him.  After this incident, however, Goeden worked for three years without any hearing-related
problems, and there is no evidence that Darigold ever discussed the incident with Goeden.  In this
context, the slip-and-fall incident is “a mere scintilla of evidence” - or perhaps even less than a
mere scintilla - that cannot defeat a summary judgment motion.  Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
Thus, the record shows that Goeden’s hearing deficit was not causing any actual work-
related problems prior to his termination.  Nevertheless, as Brownfield holds, the employer need
not wait to order a medical exam until the employee’s disability actually results in a safety or
performance problem.  The employer must have a “genuine reason to doubt whether that
employee can perform job-related functions.”  Brownfield, 612 F.3d at 1146.  Here, there is at
least a jury issue as to whether a reasonable employer may have genuine doubts about the ability
of an employee with a hearing impairment to respond to an emergency situation.  With the panic
that accompanies emergencies, could this employee hear alarms, recognize dangers, communicate
quickly, and understand orders?  A reasonable employer might have genuine doubts about
Goeden’s ability to respond in such an emergency, and is not required to wait for an actual
emergency to gauge Goeden’s ability to respond.  Thus, there is at least a jury question whether
Darigold could order a medical exam to determine whether Goeden’s hearing impairment posed a
safety risk.
Given this, the Court will deny the cross-motions for summary judgment on the medical
exam issue.
Interactive Process
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Goeden seeks a summary judgment ruling that Darigold failed to engage in the interactive
process required by the ADA.  When an employer is aware of a need for some accommodation for
a disabled employee, “the employer must engage in an interactive process with the employee to
determine the appropriate reasonable accommodation.”  E.E.O.C. v. UPS Supply Chain Solutions,
620 F.3d 1103, 1110 (9th Cir. 2010).  This interactive process “requires: (1) direct
communication between the employer and employee to explore in good faith the possible
accommodations; (2) consideration of the employee's request; and (3) offering an accommodation
that is reasonable and effective.”  Id.  The employer’s obligation to engage in the interactive
process “continues when the employee asks for a different accommodation or where the employer
is aware that the initial accommodation is failing and further accommodation is needed.”  Id. at
1111.  The continuing obligation to engage in the interactive process “fosters the framework of
cooperative problem-solving contemplated by the ADA” because it “encourag[es] employers to
seek to find accommodations that really work,” and because it “avoid[s] the creation of a perverse
incentive for employees to request the most drastic and burdensome accommodation possible out
of fear that a lesser accommodation might be ineffective.”  Id.
The interactive process requires that both the employer and the employee engage in good
faith interaction to “clarify what the individual needs and identify the appropriate
accommodation.” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir.2000), rev'd on other
grounds, 535 U.S. 391 (2002).  While the employer’s participation is necessary because it has
“superior knowledge regarding the range of possible positions and can more easily perform
analyses regarding the essential functions of each,” the employee’s participation is equally
important because he generally knows more about his or her capabilities, and “holds essential
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information for the assessment of the type of reasonable accommodation which would be most
effective.”  Id. at 1113.
In this case, it is undisputed that Darigold made no attempt to interact with Goeden after
either Jacob’s initial report or the later report of the audiologist concluding that Goeden could not
perform the essential functions of his job.  There is also no evidence that after these reports were
issued, Goeden did anything to discourage interaction.
Darigold responds that prior to those reports, it had raised - and Goeden had rejected - all
possible accommodations, so that any further interaction would have been a waste of time.  But
this argument ignores the fact that the reports of Jacobs and Schroeder were the first indications
to Goeden and Darigold that Goeden’s hearing deficit required an accommodation.  Prior to those
reports, Goeden (1) had worked for years without his impairment affecting his work as a
mechanic, (2) was not counseled or disciplined for any hearing-related incidents, and (3) had no
reason to believe any accommodation might be necessary.  There is also no evidence that
Darigold believed, prior to Schroeder’s report, that any hearing accommodation was necessary for
Goeden to continue working.
The evaluations of Jacobs and Schroeder triggered the requirement for an interactive
process by revealing for the first time that Goeden’s hearing impairment required an
accommodation.  It is undisputed that Darigold did nothing after those reports to interact with
Goeden to explore reasonable accommodations.  Consequently, Goeden is entitled to a partial
summary judgment that Darigold violated the requirement to engage in an interactive process.1
1  Darigold objected to a “Supplemental Memorandum” (Dkt. No. 94) filed by Goeden that
Darigold claims is untimely and irrelevant.   In the alternative, Darigold seeks to file a sur-reply brief to
counter Goeden’s claims made in that filing.   The Court did not consider any of the material in the
“Supplemental Memorandum” in rendering this decision and hence Darigold’s objection and request for
Memorandum Decision & Order - 11




Qualified Individual
Darigold seeks a summary judgment that Goeden is not a “qualified individual” under the
ADA, and cites Kennedy v. Applause Inc., 90 F.3d 1477 (9th Cir. 1996) in support.  To fit this
case within Kennedy, Darigold argues that “Robert Schroeder, Goeden’s own audiologist, further
determined there were no accommodations that would allow plaintiff to perform the duties of the
job.”  See Darigold Brief (Dkt No. 42-1) at p. 8.
Darigold supports this statement by citing to the December 22, 2009, letter written by
Schroeder.  That letter says nothing about accommodations, reasonable or otherwise.  Darigold
also cites to materials accompanying Jacob’s evaluation.  Again, those materials fail completely
to support Darigold’s statement.
Finally, Darigold cites to an exhibit 14 to the Declaration of Williamson.  There is no such
exhibit.  There is an exhibit 14 to the Declaration of Darigold’s counsel, Christopher Hilgenfeld.
That exhibit consists of Schroder’s analysis of Goeden’s hearing impairment, completed months
after the firing to assist Standard Insurance’s evaluation of Goeden’s disability application.  If
Darigold is proffering this as evidence of an expert opinion that no reasonable accommodations
were possible, that opinion is countered by Goeden’s expert, Mary Barros Bailey.  See Bailey
Report, (Dkt. No. 53-31).
For all of these reasons, the Court will deny Darigold’s motion for summary judgment on
the qualified individual issue.
Age Discrimination
Darigold seeks summary judgment on Goeden’s age discrimination claim.  Darigold
sur-reply brief is moot.
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argues first that there is no evidence that Goeden was replaced by someone younger.  However,
that is not the only way Goeden can establish his prima facie case.  See Coleman v. Quaker Oats
Co., 232 F.3d 1271, 1281 (9th Cir. 2000).  In Coleman, the Circuit held that even if the employee
was not replaced by someone younger, an inference of discrimination can be established “by
showing the employer had a continuing need for [his] skills and services in that [his] various
duties were still being performed.”  Id.  Here, there is evidence that Powell was at one point
willing to transfer Goeden back to his Maintenance Mechanic position without a medical exam,
and by evidence that the duties of the Preventative Maintenance Mechanic were transferred back
to the Maintenance Mechanic position.  This at least creates issues of fact over whether Darigold
had a continuing need for Goeden’s skills.
Darigold also argues that Goeden has failed to rebut their claim that they had a legitimate
reason to fire him because of the safety and performance risks he created.  There are, however,
questions of fact over whether Darigold’s stated reasons for the firing are pretextual.  As
discussed above, Goeden had worked for years in these positions without any work-related
hearing concerns.  His hearing was tested annually by Darigold and no deterioration was noted.
Upon being advised for the first time that Goeden could not do his job because of his hearing
impairment, Darigold made no efforts to follow up with the professionals who made that
assessment to determine if reasonable accommodations were possible - instead, Darigold simply
fired Goeden.
These facts create questions regarding pretext and preclude summary judgment on the age
issue.
Breach of Contract
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Darigold seeks summary judgment on Goeden’s breach of contract claim.  Goeden
responded that the claim is redundant with his other claims and seeks to have it dismissed on that
ground.  The Court will therefore dismiss the claim on the ground that it is redundant rather than
on the merits as sought by Darigold.  Accordingly, the Court will not grant that part of Darigold’s
motion for summary judgment concerning this claim, but will separately order that the breach of
contract be dismissed.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that Darigold’s motion for summary
judgment (docket no. 42) is DENIED.
IT IS FURTHER ORDERED, that Goeden’s motion for partial summary judgment
(docket no. 49) is GRANTED IN PART AND DENIED IN PART.  It is granted to the extent it
seeks summary judgment that Darigold failed to engage in the interactive process as required by
the ADA.  It is denied in all other respects.
IT IS FURTHER ORDERED, that Goeden’s claim for breach of contract be DISMISSED
on the ground that it is redundant with Goeden’s other claims.
IT IS FURTHER ORDERED, that “Defendant’s Objections to Plaintiff’s Supplemental
materials and alternatively Darigold’s Sur-reply” (docket no. 96) is DEEMED MOOT.
DATED:  December 26, 2012
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Honorable B. Lynn Winmill
Chief U. S. District Judge
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