Vinez v. Sky Chefs, Inc.

Filing 71

ORDER granting by Judge Philip A. Brimmer on 8/3/15. ORDERED: Sky Chefs Motion for Summary Judgment 26 is GRANTED. ORDERED: Ms. Vinez' claims for violation of the FMLA and ADA are DISMISSED with prejudice. ORDERED: Ms. Vinez claim for outrageous conduct is DISMISSED without prejudice. ORDERED: that this case is DISMISSED in its entirety.(kpreu, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00223-PAB-KMT
MELANIE M. VINEZ,
Plaintiff,
v.
SKY CHEFS, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Summary Judgment [Docket
No. 26] filed by defendant Sky Chefs, Inc. (“Sky Chefs”). This Court has subject matter
jurisdiction over plaintiff Melanie Vinez’ federal law claims pursuant to 28 U.S.C. § 1331
and, for purposes of resolving this motion, jurisdiction over Ms. Vinez’ state law claim
pursuant to § 1367.
I. BACKGROUND1
Sky Chefs provides catering and other services to airlines and retail customers.
Docket No. 26 at 2, ¶ 1. Sky Chefs serves airlines such as United, Delta, and American
out of its Denver Customer Service Center (“Denver CSC”), located at Denver
International Airport (“DIA”). Id. at 2, ¶ 2. Sky Chefs’ Human Resources Manager
Cheryl Williams states that Sky Chefs’ policy is to provide qualifying employees with
leave under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., including

1

The following facts are undisputed unless otherwise indicated.

a maximum of twelve weeks for employees with serious health conditions. Docket No.
26 at 3, ¶ 5; see also § 2612(a)(1)(D). When an employee has a disability as defined
by the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., Sky Chefs’
policy is to evaluate the employee’s disability and potentially provide the employee a
reasonable accommodation. Id. at 3, ¶ 5. In some cases, Sky Chefs grants disabled
employees medical leave as a reasonable accommodation. Docket No. 26 at 3, ¶¶ 5-6.
Sky Chefs’ Reduction in Force (“RIF”) policy as applicable to management
employees stated, among other things, that, when a RIF occurred, “[e]ach employee’s
skills, abilities, experience, responsibilities and performance should be reviewed and
compared to each relevant position’s requirements. This analysis allows for a wellthought out determination as to the best qualified employees to fill the remaining
positions.” Docket No. 36-8 at 2. 2
In June 2010, Sky Chefs hired plaintiff Melanie Vinez as a Customer Service
Manager/Transportation Manager (“TM”)3 at the Denver CSC. Docket No. 41 at 6, ¶ 2.
Ms. Vinez was the only TM at the Denver CSC. Docket No. 26 at 4, ¶ 10.
Approximately 70 percent of Ms. Vinez’ job consisted of work on the production floor, in
the field, and on the docks, which required her to carry boxes weighing more than 25
pounds, move galleys that weighed 75 pounds, and move heavy pallets. Id. at 3, ¶¶ 8-

2

Although Sky Chefs argues that this document is unauthenticated, the Court
need not resolve this argument in resolving the present motion.
3

Ms. Vinez states that her official title was “Transportation Manager,” see, e.g.,
Docket No. 36-2 at 1, ¶ 2, whereas Sky Chefs refers to Ms. Vinez’ position as
“Customer Service Manager/Transportation Manager.” Docket No. 26 at 3, ¶ 7. The
parties appear to reference the same position.
2

9. The remainder of Ms. Vinez’ job consisted of administrative work. Id.
In April 2011, Ms. Vinez began to feel ill and was having difficulty sleeping and
eating. Id. at 4, ¶ 11. In June 2011, Ms. Vinez was diagnosed with breast cancer,
which her doctors determined required surgery. Id. at 4, ¶ 12. Ms. Vinez and her
healthcare provider completed an application for FMLA leave and provided it to Sky
Chefs. Id. at 4, ¶ 13; Docket No. 26-3 at 2, ¶ 8. Sky Chefs granted Ms. Vinez’
application. Prior to starting her FMLA leave, Ms. Vinez met with Ms. Williams and her
supervisor Bill Brock. Docket No. 26-1 at 10, p. 83:5-10. Mr. Brock explained that, due
to the nature of the TM position, Sky Chefs would have to fill the position with another
employee. Id. at 10, pp. 83:20-84:10. He assured Ms. Vinez that she would
nonetheless have a similar position upon her return to work. Id. She began her FMLA
leave on June 20, 2011. Docket No. 26 at 4, ¶ 14. Shortly thereafter, Sky Chefs filled
the TM position with another employee. Docket No. 26-3 at 2, ¶ 10.
Ms. Vinez initially hoped that she would be able to return to work within six
weeks after her surgery and perhaps work for a few weeks between treatments, but
realized that she would not be able to resume work until she completed her treatment.
Docket No. 26-1 at 11, pp. 85:24-86:25. Ms. Vinez exhausted her twelve weeks of
FMLA leave in September 2011. Docket No. 26-3 at 2, ¶ 11; Docket No. 26-1 at 10, p.
81:4-11. Pursuant to company policy, Sky Chefs then granted Ms. Vinez continuing
medical leave as an accommodation under the ADA. Docket No. 26 at 5, ¶ 21; see
also Docket No. 26-5 at 6, p. 52:10-16. W hile on approved medical leave, Ms. Vinez
continued to receive Sky Chefs’ employee benefits, including health insurance and

3

disability. Docket No. 26-1 at 10, p.81:21-25. Ms. W illiams states that it was her
intention and the intention of Ms. Vinez’ supervisors to reinstate Ms. Vinez after she
returned from medical leave. Docket No. 26-3 at 2, ¶ 12. Ms. Vinez argues that the
circumstances surrounding her layoff raise doubts as to the truth of Ms. Williams’
statement. Docket No. 36 at 3, ¶ 23.
In early June 2012, Robert Mower assumed the position of General Manager at
the Denver CSC. Docket No. 26-2 at 1, ¶ 1. On June 18, 2012, Ms. Vinez’ physician
determined that she was physically cleared to return to work. Docket No. 36-2 at 1, ¶ 6;
Docket No. 38 at 2, ¶ 17; see also Docket No. 26-1 at 10, p. 82:4-17; id. at 11, p. 87:611; Docket No. 36-1 at 1. 4 On June 18, 2012, Ms. Vinez relayed this information to Ms.
Williams over the phone. Docket No. 36-2 at 2, ¶¶ 7-8; Docket No. 36 at 5, ¶ 1. On
June 19, 2012, Ms. Vinez met with Ms. Williams and was briefly introduced to Mr.
Mower. Docket No. 36-2 at 2, ¶ 10. Ms. W illiams told Mr. Mower that Ms. Vinez “had
just been cleared from medical leave and was coming back to work.” Id.; see also
Docket No. 36-1 at 2, p. 10:4-24. 5

4

Sky Chefs challenges the authenticity of exhibit three [Docket No. 36-3] to Ms.
Vinez’ response, Docket No. 42 at 1, which is a document entitled Work Status Report.
The Work Status Report appears to have been completed by Dr. David Schnur and
states that Ms. Vinez can return to work with some lifting restrictions “within pain
tolerance.” Docket No. 36-3. Ms. Vinez’ affidavit states that Dr. Schnur completed the
Work Status Report and that it is attached to her response brief as exhibit three.
Docket No. 36-2 at 1. However, because Sky Chefs admits that Ms. Vinez was cleared
to return to work as of June 18, 2012, the Court need not consider th e Work Status
Report or Sky Chefs’ authenticity argument in resolving this motion.
5

Sky Chefs argues that the Court should not consider Ms. Vinez’ affidavit
because it is “uncorroborated.” Docket No. 38 at 6. Sky Chefs misstates the standard
for evaluating a nonmovant’s affidavit at summary judgment. A nonmovant’s affidavit
“must be based upon personal knowledge and set forth facts that would be admissible
4

Before July 2012, the management structure at Sky Chefs’ CSCs had three
levels. The Food Production Manager (“FPM”), TM, E&S Manager, and Materials
Manager all reported to the Director of Operations, who in turn reported to the General
Manager. Docket No. 36 at 6, ¶ 11. On July 2, 2012, Sky Chefs informed senior
management at the Denver CSC, including Mr. Mower, of a corporate restructuring plan
entitled “Project Laser.” Id. at 6, ¶ 7. Project Laser required that each Sky Chefs
location eliminate the Director of Operations position, resulting in the FPM, TM, E&S
Manager, and Materials Manager reporting directly to the General Manager. Id. at 6, ¶¶
11-12; Docket No. 36-7 at 8-9, pp. 24:20-25:1; see also Docket No. 32-1 at 1. 6 One of
the goals of Project Laser was to ensure that the “right people” filled each of the four
manager positions. Docket No. 36-7 at 26, p.70:2-11. On July 2, 2012, Mr. Mower
received the Project Laser implementation document. Docket No. 36 at 7, ¶ 18. The
document [Docket No. 32-1] stated, among other things, that the person currently

in evidence; conclusory and self-serving affidavits are not sufficient.” Murray v. City of
Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995). T o the extent Ms. Vinez’ affidavit
recounts conversations she witnessed between Ms. Williams and Mr. Mower or
conversations she had with Ms. Williams, her affidavit sufficiently evidences personal
knowledge of such conversations. Because Ms. Vinez’ affidavit evidences sufficient
personal knowledge, the fact that Sky Chefs disputes the content of these
conversations does not require Ms. Vinez to present evidence corroborating her
recollection. Cf. Salguero v. City of Clovis, 366 F.3d 1168, 1177 n.4 (10th Cir. 2004)
(“[plaintiff’s] assertions are not supported in the record nor does Salg uero’s affidavit
demonstrate any personal knowledge or corroborating evidence”). Because the Court
must view the facts in the light most favorable to Ms. Vinez, the Court, for purposes of
resolving this motion, adopts Ms. Vinez’ recollection of the various conversations she
had with Sky Chefs management.
6

Docket No. 32 and all attached exhibits were stricken pursuant to the Court’s
February 11, 2015 minute order [Docket No. 34]. Ms. Vinez failed to refile those
exhibits with her conforming response brief. Nonetheless, the Court elects to consider
the stricken exhibits in resolving this motion.
5

occupying the Director of Operations position “will be 1) re-assigned to Dept Manager or
2) placed on Special Assignment (NY and MSP) or 3) RIF’d.” Docket No. 32-1 at 5;
Docket No. 36 at 7, ¶ 18 (citing Docket No. 32-1). Derek Moon was the Director of
Operations at the Denver CSC before the position was eliminated. Docket No. 36 at 7,
¶ 13.
As of June 18, 2012, the TM position at the Denver CSC was filled. Docket No.
26 at 7, ¶ 32. Ms. Williams states that she actively sought to find a position for Ms.
Vinez, including discussing with Mr. Mower the possibility of creating a new p.m.
manager on duty position (“PM MOD”) for Ms. Vinez. Docket No. 26-3 at 2, ¶ 13. 7 Ms.
Vinez asserts that, on July 3, 2012, Ms. Williams promised her the PM MOD position,
Docket No. 36-2 at 3, ¶ 12, an assertion that Sky Chefs disputes. Mr. Mower testified
that the only reason he considered creating the PM MOD position was to facilitate Ms.
Vinez’ return to work, but that he ultimately decided not to create the new position for
financial reasons, specifically “We had never had a position like previous to thinking
about having a position like that. We didn’t need it. We didn’t need it. It wasn’t an
operational necessity to have.” Docket No. 26-7 at 4, pp. 25:23-26:24; Docket No. 26-2
at 1-2, ¶ 5. Ms. Williams testified:

7

Ms. Vinez does not cite any evidence directly disputing these facts, instead
arguing that the totality of the evidence suggests that Sky Chefs “never intended to
return Ms. Vinez to work.” Docket No. 36 at 4, ¶¶ 32-34. Pursuant to this Court’s
Practice Standards, such arguments are insufficient to create a dispute of fact as to
those statements contained in paragraphs 32-34 of Sky Chef’s statement of undisputed
facts. See Judge Philip A. Brimmer, Practice Standards (Civil cases) § III.F.3.b.iv
(stating that any denial of a stated fact “shall be accompanied by . . . a specific
reference to material in the record supporting the denial”). Thus, the Court considers
the facts in paragraphs 32-34 admitted.
6

Q What ultimately happened to the P.M. MOD position?
A It was eliminated due to the Laser Project.
Q So - A The concept, the idea of it, because it was never a formal position that
was created. But the concept, that was the plan for Mel, but that plan was
eliminated due to the Laser Project.
Docket No. 36-5 at 6, p. 68:1-7.
The parties dispute whether, at the time Ms. Vinez was ready to return to work,
there were any other open positions at the Denver CSC for which Ms. Vinez was
qualified. Docket No. 26 at 7, ¶ 36; Docket No. 36 at 4, ¶ 36. T he parties agree that,
as of June 18, 2012, an FPM position – a position lateral to the T M position – was
vacant at the Denver CSC. Docket No. 36 at 5, ¶ 2. Two to three weeks after Mr.
Mower learned about the Project Laser restructuring plan, he offered the FPM position
to Mr. Moon. Docket No. 36 at 11, ¶ 39. Karen Dam erow, Sky Chefs’ Fed. R. Civ. P.
30(b)(6) witness testified that Mr. Mower felt that Mr. Moon and the other individuals
filling the manager positions “were the best performing people [and] that they were the
right people for the role.” Docket No. 36-7 at 30, p. 75:13-17. Mr. Moon notif ied Mr.
Mower that he would accept the FPM position. Docket No. 36-6 at 12, p. 20:12-16. Mr.
Mower testified that he did not consider offering Ms. Vinez the FPM position. Id. at 12,
p. 20:17-21.
The parties dispute whether Mr. Mower knew that Ms. Vinez was prepared to
return to work before or after offering Mr. Moon the FPM position. Mr. Mower testified
that he spoke with Mr. Moon about taking the FPM position prior to learning that Ms.
Vinez was interested in returning to work. Docket No. 26-7 at 4, pp. 26:25-27:8; see
also id. at 4, pp. 27:19-28:16. Ms. Vinez asserts that, on June 19, 2012, Mr. Mower
7

learned that she was ready to resume work during his conversation with Ms. Williams
and Ms. Vinez. Docket No. 36-2 at 2, ¶ 10. Ms. Vinez asserts that, because Mr. Mower
did not consider creating the PM MOD position until he knew she was able to return to
work, Docket No. 26-7 at 4, p. 26:22-23, and because, on July 3, 2012, Ms. Williams
offered her the PM MOD position, Docket No. 36-2 at 3, ¶ 12, Mr. Mower knew prior to
July 3, 2012 that Ms. Vinez was able to return to work. Docket No. 36 at 12, ¶¶ 44-45.
Ms. Williams’ deposition testimony contains additional support for this assertion.
Although Ms. Williams denies offering Ms. Vinez the position, she indicates that, prior to
discussing the position with Ms. Vinez, she had a conversation about the concept of a
PM MOD position with Mr. Mower. Docket No. 26-5 at 8, pp. 65:16-66:5.
Ms. Vinez’ affidavit states that, on August 8, 2012, Ms. Williams called her and
informed her that Sky Chefs was undergoing a restructuring:
She informed me that all of the directors of operation positions were being
phased out and that the company would only fill open vacancies in each
location. She told me that the company was going to lay off all of the
employees who were out on medical leaves of leaves of absence or regular
leaves of absence unless there was an open position for them in their
respective CSCs.
Docket No. 36-2 at 3, ¶ 16. Sky Chefs contends that this statement in Ms. Vinez’
affidavit is uncorroborated and self-serving and does not therefore create a genuine
dispute of material fact. Docket No. 38 at 4.
On September 14, 2012, Sky Chefs laid off Ms. Vinez. Docket No. 26 at 8, ¶ 39.
Mr. Mower was Sky Chefs’ decisionmaker with respect to management positions at the
Denver CSC and, as a result, made the decision to lay off Ms. Vinez. Docket No. 26 at
8, ¶ 41; Docket No. 26-7 at 3, pp. 17:6-18:5. Mr. Mower testified that the only criteria
8

used to lay off Ms. Vinez was that “we did not have an open position to bring her back
to.” Id. at 3, p. 17:15-16; see also id. at 2, p. 14:17-18 (“I didn’t have a management
position that was available for her to come back to work”); Docket No. 26-2 at 1, ¶ 4.
He further states that, had a position similar to the TM position been available, he would
have reinstated Ms. Vinez. Docket No. 26-2 at 2, ¶ 6. Mr. Mower states that, in making
the decision, he did not consider Ms. Vinez’ employment history, Ms. Vinez’ job
performance, or whether Ms. Vinez’ DIA security badge was active.8 Docket No. 26-2
at 2, ¶ 8. Ms. Vinez disputes Mr. Mower’s stated reason for laying her off only by noting
that the FPM position was open at the time she was ready to return to work. Docket
No. 36 at 4, ¶¶ 40-42.
In March 2013, Sky Chefs contacted Ms. Vinez and offered her an International
Coordinator position in the Accounts Department, a position which would have paid less
than the TM position. Docket No. 26 at 8, ¶ 44; Docket No. 36 at 4-5, ¶ 44. Ms. Vinez
declined. On June 12, 2013, at a meeting between Sky Chefs’ Director of Human
Resources Karen Damerow, Sky Chefs’ Western Region Vice President Bob Timplin,
and Mr. Brock, Ms. Damerow and Mr. Timplin criticized Mr. Brock’s decision to hire Ms.
Vinez, referring to her as Sky Chefs’ “million dollar baby.” Docket No. 36-11 at 1, ¶ 3.
Sky Chefs does not dispute this fact for purposes of the present motion.
On January 27, 2014, Ms. Vinez filed this case. Docket No. 1. Ms. Vinez
8

At some point during her medical leave, Sky Chefs’ human resources clerk
deactivated Ms. Vinez’ DIA security badge. Docket No. 26 at 6, ¶ 25. Although the
parties dispute the circumstances surrounding the deactivation of Ms. Vinez’ security
badge, such circumstances do not appear to be a basis f or Ms. Vinez’ claims arising
under federal law. Thus, the Court concludes that the issue is not m aterial to resolving
the present motion and will not further discuss it.
9

asserts a claim for discrimination in violation of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq., a claim for discrimination in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and what appears
to be state law tort claim for outrageous conduct. 9 Id. at 5-6.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
However, “[w]hen, as in this case, the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden at the summary judgment stage
by identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
9

Although the complaint and the final pretrial order are silent as to the source of
Ms. Vinez’ outrageous conduct claim, the parties characterize it as a tort claim based
upon Colorado law. See Docket No. 26 at 17; Docket No. 36 at 25. T he Court finds no
reason to disagree with the parties’ characterization.
10

Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))
(internal quotation marks omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d
1513, 1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
The nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the
nonmovant must establish, at a minimum, an inference of the presence of each
element essential to the case.” Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir.1994)). “In applying this standard, we view all facts and
any reasonable inferences that might be drawn from them in the light most favorable to
the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th
Cir. 1994).
III. ANALYSIS
A. FMLA
The FMLA requires employers to allow their employees up to twelve weeks of
leave in a year if the leave is requested for, among other things, an employee’s “serious
health condition that makes the employee unable to perform the functions of the
position of such employee.” 29 U.S.C. § 2612(a)(1)(D). “At the end of the leave, the
employee must be reinstated to his or her position or to a position eq uivalent in pay,
benefits, and other terms and conditions of employment.” Gunnell v. Utah Valley State

11

Coll., 152 F.3d 1253, 1261 (10th Cir. 1998) (citing § 2614(a)(1)). Employers are
prohibited from interfering with an employee who exercises his or her rights under the
FMLA and from discriminating against “any individual for opposing any practice made
unlawful by this subchapter.” § 2615(a). As a result, courts have recognized two
theories of recovery on FMLA claims under § 2615: an entitlement or interference
theory and a retaliation or discrimination theory. Smith v. Diffee Ford-Lincoln-Mercury,
Inc., 298 F.3d 955, 960 (10th Cir. 2002). Ms. Vinez asserts her FMLA claim based
upon a retaliation or discrimination theory. Docket No. 36 at 13 (citing § 2615(a)(2)).
There are, generally speaking, two ways in which a plaintiff can prove
discrimination. The first and most common is the McDonnell Douglas burden-shifting
framework, which applies to claims in which plaintiff has no direct evidence of
discrimination. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n.3 (10th Cir. 1997).
However, if the employer admits that discrimination played a prominent role in an
employment decision or if plaintiff has other direct evidence of discrimination, then the
burden-shifting framework may not be necessary. Id. Although Ms. Vinez refers to
certain evidence as “direct evidence” of discrimination under the FMLA, she argues that
such evidence is also sufficient to satisfy the three elements of a prima facie case of
discrimination under the McDonnell Douglas framework. See Docket No. 36 at 14. The
evidence Ms. Vinez refers to as “direct evidence” does not constitute Sky Chefs’
admission that her exercise of FMLA rights played a prominent role in its decision to lay
off Ms. Vinez. Therefore, the Court will consider Ms. Vinez’ so-called “direct evidence”
under the appropriate prongs of the McDonnell Douglas burden-shifting framework.

12

See, e.g, Campbell v. Gambro Healthcare, Inc., 447 F. Supp. 2d 1205, 1221 (D. Kan.
2006).
To establish a prima facie case of retaliation under the McDonnell Douglas
framework, Ms. Vinez must prove that “(1) she engaged in a protected activity; (2) [the
employer] took an action that a reasonable employee would have found materially
adverse; and (3) there exists a causal connection between the protected activity and
the adverse action.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171
(10th Cir. 2006). If Ms. Vinez can establish a prima facie case, the burden shifts to Sky
Chefs to “demonstrate a legitimate, nonretaliatory reason for its termination decision.”
Id. at 1172. Provided Sky Chefs’ reason for terminating Ms. Vinez is not facially
prohibited, Ms. Vinez then “must show that there is a genuine dispute of material fact as
to whether [Sky Chefs’] explanation[] for terminating her employment [is] pretextual.” Id.
Sky Chefs does not dispute the first two elements of the prima facie case.
Rather, the parties disagree only as to whether Ms. Vinez has established the third
element of the prima facie case. The “‘critical inquiry’ at this prima facie stage is
‘whether the plaintiff has demonstrated that the [employer’s] action occurred under
circumstances which give rise to an inference of unlawful discrimination.’” Id. at 1171
(quoting Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002)); see
also Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (“W e
have characterized the showing required to satisfy the third prong under a retaliation
theory to be a showing of bad intent or retaliatory motive on the part of the employer.”).
Temporal proximity between a plaintiff’s protected conduct and the adverse action is

13

evidence of a “causal connection sufficient to justify an inference of retaliatory motive,”
but temporal proximity alone is sufficient only when the adverse action is “‘very closely
connected in time to the protected activity.’” Metzler, 464 F.3d at 1171 (emphasis in
original) (quoting Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999)).
Absent very close temporal proximity, plaintiff must rely on additional evidence to
establish an inference of retaliatory motive. Piercy v. Maketa, 480 F.3d 1192, 1199
(10th Cir. 2007).
Here, Ms. Vinez does not dispute that she exhausted her FMLA leave in
September 2011 and was laid off on September 14, 2012, which evidences a gap of
more than 11 months between her exercise of FMLA rights and her layoff. In the Tenth
Circuit, a gap of that length is, by itself, insufficient to establish causation. See
Gebhardt v. Exide Techs., 521 F. App’x 653, 658 (10th Cir. 2013) (unpublished)
(holding that, where final use of FMLA leave was no later than August 2007 and
termination was in September 2008, plaintiff failed to establish causation through
temporal proximity); Piercy, 480 F.3d at 1198 (“an adverse employment action that
happened more than three months after the protected activity was not entitled to a
presumption of causation”); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395
(10th Cir. 1997) (“four month time lag between Connor’s participation in protected
activity and his termination by itself would not be sufficient to justify an inference of
causation”).10

10

See generally Gruppo v. FedEx Freight Sys., Inc., 296 F. App’x 660, 664 (10th
Cir. 2008) (applying analysis of racial or religious discrimination to FMLA retaliation
claim (citing Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002)).
14

The Tenth Circuit has suggested that, when an employee is on leave during the
time between the protected conduct and an adverse employment action, a longer gap
between the two events may nonetheless be sufficient to establish a temporal
connection. See Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1217 (10th Cir. 2003).
In Wells, plaintiff filed a complaint with her employer’s equal employment opportunity
office in November 1995. Id. at 1211. Plaintiff took approximately three weeks of
FMLA leave, briefly returned to work, and then was on leave for an additional four
months. Id. Plaintiff was directed to return to work because her FMLA leave had
expired and, when she did so, was quickly transferred to another facility. Id. Plaintiff
argued that there was a causal connection between her November 1995 complaint and
her transfer five months later. Id. at 1216. The Tenth Circuit noted that, ordinarily, a
five-month gap between protected activity and adverse action would not, by itself,
support an inference of causation because the motivation for retaliation tends to
diminish over time. Id. at 1217 (“[w]hen retaliation for an act occurs well after the act,
one wonders why the retaliator failed to act sooner”). However, because plaintiff was
on leave during the time between the filing of her complaint and subsequent transfer,
“[e]ven if Mr. Moston had a desire to retaliate for the November complaints, it did not
make sense for him to do so until Plaintiff returned to work.” Id. The Tenth Circuit
therefore determined that a jury could draw a retaliatory inference based on the timing
of these events. The unique circumstances upon which the Tenth Circuit’s decision
was based are not present here. First, unlike the f ive-month gap in Wells, a full eleven
months passed between Ms. Vinez’ exercise of FMLA rights and any adverse

15

employment action. Second, unlike Wells, Sky Chefs was not without opportunity to
retaliate against Ms. Vinez if it wished to do so. For example, Sky Chefs could have
denied Ms. Vinez additional leave once her FMLA leave expired,11 terminated her at
any point between September 2011 and June 2012, or terminated her immediately after
learning that she was medically cleared to return to work. Cf. id. (“only days after
Plaintiff’s return to work in April, the transfer and reassignment were effectuated”).
Because Ms. Vinez fails to establish a very close temporal proximity between her
exercise of FMLA rights and her layoff, she must rely on additional evidence to
establish causation. 12
Plaintiff’s additional evidence of retaliatory motive is thin. Ms. Vinez argues that
she was “treated differently than her co-workers because she was on a medical leave of
absence,” which she claims is direct evidence that she was discriminated against for
taking FMLA leave. Docket No. 36 at 14. Ms. Vinez fails to identify any similarly
situated co-workers who were treated differently. Moreover, Ms. Vinez’ general

11

In regards to the ADA, “when an employee seeks a leave of absence for
treatment and has a good prognosis for recovery, a leave of absence is a reasonable
accommodation. Conversely, when the employee seeks leave, but it is uncertain if or
when he will be able to return to work, a leave of absence is not a reasonable
accommodation.” Valdez v. McGill, 462 F. App’x 814, 818 (10th Cir. 2012)
(unpublished) (citation omitted). Thus, although Sky Chefs refers to the additional
leave Ms. Vinez took as “ADA” leave, it is unclear that the ADA required Sky Chefs to
provide such leave as a reasonable accommodation.
12

Mr. Mower made the decision to lay off Ms. Vinez at some point between
becoming General Manager of the Denver CSC in June 2012 and September 14, 2012,
the date that Ms. Vinez was told of her termination. Thus, the decision to lay off Ms.
Vinez was made at least eight months after she exhausted her FMLA leave, a gap
which, under Tenth Circuit precedent, does not establish the requisite temporal
proximity. See Piercy, 480 F.3d at 1198.
16

assertion that she was on “medical leave” is insufficiently specific to establish an FMLA
retaliation claim. After exhausting her FMLA leave in September 2011, Ms. Vinez took
additional medical leave until she was ready to return to work in June 2012. This
additional medical leave was not FMLA leave, but was medical leave Sky Chefs
granted her pursuant to its own policies. See Docket No. 26-3 at 2, ¶¶ 6-7. This
additional, non-FMLA medical leave cannot form the basis of an FMLA retaliation claim.
See Gunnell, 152 F.3d at 1262 (“an employee who requests FMLA leave would have no
greater protection against his or her employment being terminated for reasons not
related to his or her FMLA request than he or she did before submitting the request”).
Ms. Vinez fails to recognize this distinction.
Ms. Vinez fails to adequately articulate a causation theory, and her bare
assertion that Sky Chefs’ conduct was retaliatory is insufficient to satisfy her burden.
See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1172 (10th Cir. 2007)
(holding that plaintiff’s “mere conjecture” was, by itself, insufficient to allow a reasonable
factfinder to infer discriminatory intent). Ms. Vinez does not account for the fact that the
additional leave could be considered an intervening event undermining her causation
argument. See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1001-02 (10th Cir.
2011) (noting that evidence of intervening events tends to undermine inference of
retaliatory motive and weaken the causal link (citing Maestas v. Segura, 416 F.3d 1182,
1189 (10th Cir. 2005)); Trujillo-Cummings v. Pub. Serv. Co. of N.M., 1999 WL 169336,
at *3 (10th Cir. Mar. 29, 1999) (unpublished) (concluding that intervening positive
employment actions, including employer’s approval of work-at-home arrangement,

17

undermined plaintiff’s retaliation claim). Moreover, Ms. Vinez fails to account for the
intervening effect of Project Laser. Although the FPM position was open as of June 18,
2012, it did not remain so up until the date of Ms. Vinez’ termination. Project Laser
gave Mr. Mower the choice of either reassigning Mr. Moon to a department manger
position or terminating him pursuant to a reduction in force. See Docket No. 32-1 at 5.
Ms. Vinez does not dispute that Project Laser caused Mr. Mower to place Mr. Moon in
the previously open FPM position. Ms. Vinez fails to identify any evidence suggesting
that, had she not taken FMLA leave, Mr. Mower would have offered the FPM position to
someone other than Mr. Moon, much less her. Ms. Vinez therefore fails to establish
that she was treated differently than if she had not taken FMLA leave. See Mickelson
v. New York Life Ins. Co., 460 F.3d 1304, 1317 (10th Cir. 2006) (“The causalconnection inquiry does not focus on what the FMLA or personnel rules required the
employer to do, but whether the employer treated an employee differently than it would
have if she had not engaged in protected activity.”).13
Ms. Vinez makes a variety of arguments challenging Mr. Mower’s stated reason
for terminating her employment, none of which identify sufficient evidence upon which a
reasonable juror could conclude that he acted with FMLA-related discriminatory animus
or a retaliatory motive. Ms. Vinez argues that Ms. Damerow, in her capacity as a Rule
30(b)(6) witness, “testified that [Sky Chefs] does not know what criteria were used to
13

Although Ms. Vinez does not argue Sky Chefs acted with discriminatory intent
in failing to create the PM MOD position for her, the intervening effect of Project Laser
would similarly undercut such an argument. Moreover, Ms. Vinez does not argue that,
once Ms. Williams told Ms. Vinez that she would be given the PM MOD position, see
Docket No. 36-2 at 3, ¶ 12, the FMLA or ADA prohibited Sky Chefs’ managers from
changing their mind in light of Project Laser.
18

identify Ms. Vinez for employment termination,” which Ms. Vinez contends contradicts
Mr. Mower’s deposition testimony that he decided to lay off Ms. Vinez because there
were no open positions. Docket No. 36 at 16-17. Ms. Vinez argues that, while Ms.
Damerow testified that Ms. Vinez was laid off due to corporate restructuring, Mr. Mower
testified that Ms. Vinez’ layoff was not a result of Project Laser. Id. Ms. Vinez does not
support her argument with specific citation to the record, but instead refers generally to
her statement of facts. It is not incumbent upon the Court to parse the record in search
of evidentiary support for her argument. Moreover, even if Ms. Vinez properly
supported her argument, she fails to explain why the asserted contradiction could lead
a reasonable juror to conclude that Mr. Mower acted with FMLA-related retaliatory
animus. No such conclusion is apparent to the Court.
Ms. Vinez argues that Mr. Mower’s failure to comply with the Project Laser
implementation document and the RIF policy in deciding to lay off Ms. Vinez
establishes the requisite causal connection. Docket No. 36 at 17. Im plicit in this
argument is the assertion that the Project Laser implementation document and RIF
policy applied to Mr. Mower’s decision to lay off Ms. Vinez, an assertion which Sky
Chefs argues is unsupported. See Docket No. 38 at 5, ¶ 29. An employee’s mere
allegation that his employer engaged in a procedural irregularity is insufficient to
establish discrimination; rather, the employee “must present evidence that the employer
believed that a relevant company policy existed, and chose to deviate from the policy in
spite of that belief.” Hysten v. Burlington N. Santa Fe Ry. Co., 415 F. App’x 897, 910
(10th Cir. 2011) (unpublished). Ms. Vinez does not identify, with specific citation to the
record, any evidence suggesting that the Project Laser implementation document and
19

RIF policy applied to employees in her situation, namely, an employee returning from
extended medical leave whose previous position was no longer vacant, and, more
importantly, Ms. Vinez does not identify evidence suggesting that Mr. Mower held such
a belief. See Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1222 (10th Cir. 2007)
(holding that, if decisionmakers did not believe a policy existed, mistake in failing to
follow it does not establish pretext). To the contrary, Mr. Mower testified that Ms. Vinez
“was ultimately laid off, but it was not a result of Project Laser.” Docket No. 36-6 at 7,
p. 14:1-2. Thus, Ms. Vinez’ arguments that Mr. Mower failed to complete certain
documents in implementing Project Laser, that Mr. Mower should have determined
whether she was a “high performing individual[]” and considered her for a lesser
supervisory position as contemplated by the Project Laser implementation document, or
that Mr. Mower did not otherwise follow the RIF policy are irrelevant.
Ms. Vinez also relies on statements made by Ms. Williams and Ms. Damerow in
attempting to establish the third element of her prima facie case. Even seemingly
ambiguous comments can support an inference of discrimination if plaintiff can show “a
nexus between the allegedly discriminatory statements and the employer’s decision.”
Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479 (10th Cir. 1996). On
August 8, 2012, Ms. Williams stated that, due to corporate restructuring, “the company
was going to lay off all of the employees who were out on medical leaves of absence or
regular leaves of absence unless there was an open position for them in their
respective CSCs.” Docket No. 36-2 at 3, ¶ 16. However, Ms. Williams does not
specifically reference the FMLA or plaintiff’s use of FMLA leave, which was exhausted
in September 2011. Moreover, Ms. Williams was not the decisionmaker with respect to
20

Ms. Vinez’ layoff and Ms. Vinez does not provide any reason to ascribe Ms. Williams’
statement to Mr. Mower. See Gebhardt, 521 F. App’x at 658 (holding that assertion
ascribed to plaintiff’s supervisor did not create genuine dispute of material fact as to
causation because supervisor was not decisionmaker with regard to plaintiff’s
dismissal). As for Ms. Damerow’s June 2013 statement that Mr. Vinez was Sky Chefs’
“million dollar baby,” Docket No. 36 at 18, Ms. Vinez does not adequately explain why
she believes a jury could infer FMLA-related animus from this remark. Ms. Damerow’s
remark occurred in June 2013 – nearly eight months after Ms. Vinez was laid off.
Assuming that the remark is probative of Ms. Damerow’s retaliatory animus towards Ms.
Vinez, nothing suggests that she possessed such animus at the time Ms. Vinez was
laid off or that Mr. Mower – the decisionmaker with respect to Ms. Vinez’ employment –
possessed similar animus. Moreover, although Ms. Damerow had conversations with
Mr. Mower regarding the decision to lay off Ms. Vinez, Ms. Vinez does not identify
evidence suggesting that Ms. Damerow exerted influence over Mr. Mower’s decision to
lay off Ms. Vinez. Thus, Ms. Damerow’s June 2013 statement that Ms. Vinez was Sky
Chefs’ “million dollar baby” lacks a sufficient nexus to the employment decision so as to
support an inference of retaliatory animus. See Tomsic, 85 F.3d at 1479.
Ms. Vinez’ prima facie case fails for an additional reason. Ms. Vinez contends
that she has established causation because Mr. Mower knew that she was “on medical
leave for breast cancer.” Docket No. 36 at 16. However, the Court does not find that
Mr. Mower’s general awareness that Ms. Vinez was on “medical leave” is, by itself,
sufficient to establish that Mr. Mower knew that Ms. Vinez exercised her right to FMLA
leave in June through September 2011 and therefore terminated her for that specific
21

reason. See Wood v. Handy & Harman Co., 318 F. App’x 602, 606 (10th Cir. 2008)
(unpublished) (“An essential component of causation is the decisionmaker’s knowledge
of the protected activity; if knowledge is lacking, then the protected act cannot be said
to have caused the adverse employment action.” (citing Jones v. United Postal Serv.,
Inc., 502 F.3d 1176, 1195 (10th Cir. 2007))); Satterlee v. Allen Press, Inc., 274 F. App’x
642, 646-47 (10th Cir. 2008) (unpublished) (rejecting FMLA retaliation claim in part
because plaintiff failed to show that person responsible for terminating employee had
knowledge that plaintiff was entitled to FMLA leave). Ms. Vinez does not, as is her
burden, identify, with specific citation to the record, any evidence tending to establish
that Mr. Mower knew of Ms. Vinez’ use of FMLA leave. Mr. Mower was not employed at
the Denver CSC when Ms. Vinez used her FMLA leave. Docket No. 36-6 at 3-4, pp.
10:25-11:2. Although Mr. Mower testified that he learned that Ms. Vinez was on
medical leave and had cancer prior to the decision to lay her off, Docket No. 36-6 at 4,
pp. 10:19-11:11, he testified that he “wasn’t sure the date she went on leave. I knew
she had been on leave for an extended period to time.” Id. at 9, p. 17:1-5. Given Sky
Chefs’ policy of granting additional medical leave as an accommodation under the ADA,
the mere fact that Ms. Vinez was on “medical leave” would not necessarily imply to Mr.
Mower that she had at some point exercised her right to FMLA leave. Even if a
reasonable factfinder could infer such knowledge on his behalf, Ms. Vinez cites no
evidence suggesting that Mr. Mower’s decision was based on FMLA leave as opposed
to another reason. Mr. Mower’s affidavit and deposition testimony regarding his
reasons for Ms. Vinez’ layoff do not evidence an awareness that she took FMLA leave
in June through September 2011. Because Ms. Vinez identifies no evidence
22

suggesting that Mr. Mower knew Ms. Vinez had taken FMLA leave, she fails to create a
genuine issue of material fact as to whether Mr. Mower acted with FMLA-related
retaliatory intent in deciding to lay her off. Ms. Vinez therefore fails to establish a prima
facie case of FMLA retaliation.
The Court recognizes that a plaintiff needs only a “small amount of proof” to
establish a prima facie case. See Smothers v. Solvay Chems., Inc., 740 F.3d 530, 539
(10th Cir. 2014) (quotation omitted). Here, however, Ms. Vinez fails to provide that level
of proof. Ms. Vinez does not provide any evidence that, for example, similarly situated
employees were treated differently than she was or that Sky Chefs previously retaliated
against her for exercising her FMLA rights – evidence that may otherwise provide a
basis upon which to infer that Ms. Vinez was laid off in retaliation for her exercise of
FMLA rights. See, e.g., Smothers, 740 F.3d at 541, 544; Carrero-Ojeda v. Autoridad
De Energia Electrica, 755 F.3d 711, 720 (1st Cir. 2014) (holding that employee failed to
evidence “negative comments, complaints, or expressions of reluctance by her
superiors or co-workers about her FMLA leave-taking, . . . discussion of her FMLA leave
status in performance reviews, etc.” that would otherwise lead to conclusion that
defendants took FMLA requests into account in terminating employee). The lack of
temporal proximity between her exercise of FMLA rights and her layoff, nondiscriminatory intervening events, and the lack of circumstantial evidence that Mr.
Mower’s decision was somehow motivated by FMLA-related animus would leave a
reasonable jury with no basis to infer that Ms. Vinez’ layoff was in retaliation for her
exercise of FMLA leave. Because Ms. Vinez fails establish a causal connection
between her FMLA activity and her layoff, Sky Chefs’ motion for summary judgment as
23

to this claim will be granted. See McGowan v. City of Eufala, 472 F.3d 736, 747 (10th
Cir. 2006) (“If the reason for the claimed adverse action does not flow from a
discriminatory motive, it lacks the requisite causal connection to the adverse action.”).
B. ADA
Ms. Vinez’ second claim for relief asserts that Sky Chefs discriminated against
her in violation of the ADA. There are three distinct types of discrimination under the
ADA. See Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003).
Disparate treatment claims are those where a qualified individual with a disability is
treated differently because of her disability. Id. A separate claim of discrimination can
be stated under the ADA for failing to provide a reasonable accommodation or, in other
words, “not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual . . . .” 42 U.S.C. § 12112(b)(5)(A); see,
e.g., Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1179 (10th Cir.
1999) (discussing ADA claim for failure to accommodate by offering reassignment to a
vacant position). Last, a disparate impact claim is one in which the plaintiff asserts that
a defendant uses “qualification standards . . . or other selection criteria that screen out
or tend to screen out an individual with a disability . . . .” § 12112(b)(6). Although Ms.
Vinez’ brief does not explicitly identify the theory upon which she asserts her ADA
discrimination claim, she appears to have pled only a disparate impact claim. Her
complaint does not allege, and her response brief does not argue, that Sky Chefs
violated the ADA by failing to accommodate her disability by reassigning her to a vacant
position or that Sky Chefs engaged in conduct that caused a disparate impact.

24

Moreover, Ms. Vinez advocates for the application of the traditional three-element prima
facie case typically used to evaluate disparate treatment claims under the McDonnell
Douglas burden-shifting framework, Docket No. 36 at 23 (citing Smothers, 740 F.3d at
544), rather than the considerably more complex prima facie framework sometimes
used in failure to accommodate by offering reassignment cases. See, e.g., Smith, 180
F.3d at 1179. Thus, in the absence of argument to the contrary, the Court concludes
that Ms. Vinez’ second claim for relief is based exclusively on a disparate treatment
theory, namely, that she was laid off because of her disability.
ADA disparate treatment claims in which there is no direct evidence of
discrimination are subject to the McDonnell Douglas burden-shifting analysis. EEOC v.
C.R. England, Inc., 644 F.3d 1028, 1038 (10th Cir. 2011). Althoug h Ms. Vinez
maintains that she has direct evidence that Sky Chefs discriminated against her on the
basis of her disability, she does not contend that this evidence renders her ADA claim
outside the purview of the McDonnell Douglas framework. Docket No. 36 at 23-24.
Rather, she argues that this evidence establishes her ADA claim under the McDonnell
Douglas framework. Moreover, for the reasons discussed above, the evidence upon
which plaintiff relies is not the type that renders the traditional burden-shifting
framework unnecessary. Cf. Davidson, 337 F.3d at 1189 (concluding that, because
“AOL’s explanation for its action established that it relied on Davidson’s disability when
it refused to hire him,” burden-shifting analysis was unnecessary). The Court will
therefore consider Ms. Vinez’ “direct evidence” under the appropriate prongs of the
McDonnell Douglas framework.

25

To establish a prima facie claim of ADA discrimination on a disparate treatment
theory, a plaintiff must show that: “(1) she is disabled as defined by the ADA; (2) she is
qualified to perform the essential functions of the job with or without reasonable
accommodation; and (3) she suffered discrimination on the basis of her disability.”
Hennagir v. Utah Dept. of Corr., 587 F.3d 1255, 1261 (10th Cir. 2009). 14 Although the
burden on plaintiff at this stage is not onerous, it is “not empty or perfunctory.” Morgan
v. Hilti, Inc., 108 F.3d 1319, 1323-24 (10th Cir. 1997) (quotation omitted). After plaintiff
has established a prima facie case, the defendant bears the burden of articulating a
legitimate, nondiscriminatory reason for its conduct, at which point the burden shifts
back to plaintiff to establish that defendant’s stated reasons are pretextual. C.R.
England, 644 F.3d at 1038.
The Court turns to Ms. Vinez’ prima facie case. The parties agree that Ms.
Vinez’ breast cancer constitutes a disability under the ADA, Docket No. 41 at 5, ¶ 1,
and, for purposes of resolving this motion, the Court assumes, without deciding, that
Ms. Vinez has established that she is a qualified individual. In order to establish the
third element, a plaintiff must show that she was laid off “under circumstances which
give rise to an inference that the termination was based on [her] disability.” Smothers v.
Solvay Chems., Inc., 740 F.3d 530, 544 (10th Cir. 2014). Ms. Vinez must therefore
“present some affirmative evidence that disability was a determining factor in the
employer’s decision” such that, if the trier of fact finds such evidence credible, “and the
14

Although the ADA was substantially amended in 2008, the Tenth Circuit has
continued to apply this framework to discrimination claims arising after the amendments
took effect. See, e.g., Tadlock v. Marshall Cnty. HMA, LLC, 603 F. App’x 693, 702
(10th Cir. 2015).
26

employer remains silent, she would be entitled to judgment as a matter of law.”
Morgan, 108 F.3d at 1323-24.
In attempting to establish this element, Ms. Vinez relies entirely on her
arguments in support of her FMLA claim, asserting, without citation to authority, that
“there is no meaningful difference between dismissing Ms. Vinez because of her
disability and dismissing Ms. Vinez because she took medical leave to treat that
disability.” Docket No. 36 at 24-25. Ms. Vinez is both legally and factually incorrect.
First, Ms. Vinez’ ADA claim and her FMLA claim require her to show different types of
discriminatory animus. An ADA discrimination plaintiff must establish that “she was
terminated because of her disability,” Butler v. City of Prairie Vill., Kan., 172 F.3d 736,
748 (10th Cir. 1999), whereas a plaintiff asserting an FMLA retaliation claim must
establish a “causal connection between the protected activity and the adverse action.”
Metzler, 464 F.3d at 1171. Ms. Vinez does not cite any authority – and the Court is
aware on none – in support of her implicit argument that the two inquiries are the same.
To the contrary, although there may be some factual overlap between the two inquiries,
courts generally consider discriminatory intent and retaliatory intent to be distinct
concepts. See, e.g., Stover v. Martinez, 382 F.3d 1064, 1075 (10th Cir. 2004)
(analyzing Title VII discrimination and retaliation claims separately). The Court finds no
reason to depart from this general practice. Second, there are considerable f actual
differences between the two claims. For example, although the temporal proximity
between Ms. Vinez’ exercise of FMLA rights and her layoff is relevant to her FMLA
claim, it does not bear on the question of whether Sky Chefs terminated Ms. Vinez
because she had breast cancer. Moreover, in order to establish a prima facie case of
27

FMLA retaliation, Ms. Vinez was required to provide evidence that Mr. Mower was
motivated by FMLA-related retaliatory animus, whereas here such animus is irrelevant
to determining whether Mr. Mower decided to lay off Ms. Vinez because she suffered
from breast cancer. Ms. Vinez’ failure to recognize the differences between her two
claims, tailor her arguments accordingly, and identify specific evidence in support of her
ADA claim is, by itself, a sufficient reason to conclude that her ADA claim fails for lack
of support. Nonetheless, the Court will consider whether Ms. Vinez’ arguments in
support of her FMLA claim have any bearing on whether she was laid off because of
her disability.
Ms. Vinez argues that Mr. Mower was aware that she was on medical leave for
breast cancer. Docket No. 36 at 16. However, Mr. Mower’s mere awareness of Ms.
Vinez’ disability is insufficient to establish the requisite discriminatory intent. See
Ainsworth v. Indep. Sch. Dist. No. 3 of Tulsa Cnty., Okla., 232 F. App’x 765, 771 (10th
Cir. 2007) (unpublished) (“it does not follow that a reasonable inference of
discrimination may be drawn from mere awareness of a disability or that mere
awareness is affirmative evidence that may establish the third element of the prima
facie case”).
As discussed above, Mr. Vinez’ attempts to identify contradictions between Ms.
Damerow’s and Mr. Mower’s deposition testimony regarding the reasons for Ms. Vinez’
layoff are unsupported and Ms. Vinez does not explain how such contradictions would
lead a jury to infer that her disability played a determinative role in Mr. Mower’s
decision. No such inference is apparent to the Court. Ms. Vinez also fails to establish
that Mr. Mower’s alleged failures to follow the Project Laser implementation document
28

and RIF policy in deciding to lay off Ms. Vinez would lead a jury to the requisite
discriminatory inference.
To the extent Ms. Vinez relies on Ms. Williams’ August 8, 2012 statement to
establish an inference of discrimination, her reliance is misplaced. Ms. Williams’
statement indicates that Sky Chefs was laying off employees on medical leave who did
not have an open position to return to, not that Sky Chefs was laying off disabled
employees because of their disability.15 Moreover, Ms. Vinez fails to show that
whatever discriminatory intent can be inferred from this statement can be ascribed to
Mr. Mower. Ms. Damerow’s June 2013 comment similarly lacks a sufficient nexus to
the decision to lay off Ms. Vinez. See Melin v. Verizon Business, Inc., 595 F. App’x
736, 740 (10th Cir. 2014) (unpublished) (concluding that offensive and derogatory
remarks lacked sufficient nexus to adverse employment action).16
Sky Chefs argues that Ms. Vinez’ arguments fail to account for the fact that Sky
Chefs granted her significant leave as an accommodation under the ADA and that,
rather than terminating her immediately upon her medical clearance to return to work,
Sky Chefs explored the possibility of creating a new position for her. Docket No. 38 at

15

This aspect of Ms. Williams’ statement may raise issues relevant to a claim that
Sky Chefs failed to provide reasonable accommodation as required by the ADA, but
Ms. Vinez asserts no such claim.
16

Ms. Vinez’ reliance on this statement is unavailing for an additional reason.
According to Ms. Vinez, on August 8, 2012, Ms. Williams stated that Sky Chefs would
lay off employees who were out on medical leave of absence “unless there was an
open position open for them in their respective CSCs.” Docket No. 36-2 at 3, ¶ 16.
However, because Sky Chefs accepted Ms. Vinez’ return to work paperwork on July 3,
2012, id. at 3, ¶ 12, it is not clear that, as of August 8, 2012, Ms. Vinez fell into the
category of an “employee . . . out on medical leave.” See id. at 3, ¶ 16.
29

9. The Court agrees that these facts do not evidence discriminatory animus on the part
of Sky Chefs. Cf. Ainsworth, 232 F. App’x at 771-72 (“Ms. Price’s mere awareness of
Mr. Ainsworth’s impairment, particularly when viewed in conjunction with the fact that
she continued to give him assignments after gaining that awareness, does not
constitute affirmative evidence that disability was a determining factor in her
recommendation”). Moreover, neither party identifies evidence that Ms. Vinez’ disability
would have significantly limited her ability to work or would have otherwise required Sky
Chefs to enact reasonable accommodations. Thus, there exists no basis for a
reasonable juror to infer that Mr. Mower laid off Ms. Vinez due to concern over her
inability to perform a job or the inconvenience of enacting reasonable accommodations
if she were to return to work.
For the foregoing reasons, Ms. Vinez has failed to prove affirmative evidence
upon which to conclude that her disability was a “determining factor” in Sky Chefs’
decision to terminate her employment. See Morgan, 108 F.3d at 1323-24. 17
C. Pretext
Even if the Court were to analyze the circumstances surrounding Ms. Vinez’
layoff as evidence of pretext, Ms. Vinez fails to establish that Sky Chefs’ proffered
17

Sky Chefs cites multiple cases in support of its argument that “an employer’s
duty to accommodate under the ADA is the same whether it is reviewed in light of
reassigning an employee to a vacant position or assigning an employee to a vacant
position after he or she returns from approved medical leave.” Docket No. 26 at 14 n.4.
The Court need not consider what, if any obligation Sky Chefs had to accommodate
Ms. Vinez in this respect because Ms. Vinez brings only a disparate treatment claim
and does not, strictly speaking, argue that Sky Chefs breached its duty to
accommodate or that the ADA required it to “reserv[e] a job opening for [her] possible
return . . . .” See Crano v. Graphic Packaging Corp., 65 F. App’x 705, 708 (10th Cir.
2003) (unpublished).
30

reason for her layoff was pretextual. See EEOC v. PVNF, LLC, 487 F.3d 790, 800 n.5
(10th Cir. 2007) (“Regardless of whether [courts] analyze the plaintiff’s evidence in
reference to the prima facie case or the business justification versus pretext inquiry, . . .
if the court correctly concludes that the evidence of discrimination/pretext fails as a
matter of law, summary judgment for the defendant is the proper result.” (internal
citations and quotations omitted)). To demonstrate pretext, Ms. Vinez must produce
evidence of “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for” its termination
decision. See Crowe v. ADT Security Servs., Inc., 649 F.3d 1189, 1196 (10th Cir.
2011). The Supreme Court has held that, “[i]n appropriate circumstances, the trier of
fact can reasonably infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (2000). Such a showing, however, will not “always be
adequate to sustain a jury’s finding of liability” such as when “no rational factfinder could
conclude that the action was discriminatory.” Id. at 148 (emphasis in original). Thus,
the Tenth Circuit has held that, in order to draw an inference of the type described in
Reeves, “the factfinder must be able to conclude, based on a preponderance of the
evidence, that discrimination was a determinative factor in the employer’s actions –
simply disbelieving the employer is insufficient.” Young v. Dillon Cos., Inc., 468 F.3d
1243, 1250 (10th Cir. 2006) (quotation omitted, emphasis in original). “[T]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff.” Reeves, 530 U.S. at 143

31

(quotation omitted).
Here, Mr. Mower’s stated reason for Ms. Vinez’ layoff is that there “were no open
positions available at the time she was medically cleared to return to work,” Docket No.
26-2 at 1, ¶ 4, a reason which is not facially prohibited. Ms. Vinez has identified a
weakness in this rationale. Ms. Vinez correctly points out that, as of the day she was
medically cleared to return to work, the FPM position was open. As discussed above,
Ms. Vinez has established a dispute of fact as to whether, prior to July 3, 2012, Mr.
Mower knew that Ms. Vinez was ready to return to work. Docket No. 36 at 12, ¶¶ 4445. The FPM position did not, however, remain open until Ms. Vinez was laid off on
September 14, 2012. On July 2, 2012, Mr. Mower was directed to implement Project
Laser, which provided for the elimination of Mr. Moon’s position. The implementation
document contemplated that Mr. Moon could, as applicable to the Denver CSC, be
reassigned or terminated. Docket No. 32-1 at 5. In accordance with the
implementation document, Mr. Mower offered Mr. Moon the open FPM position. See
Docket No. 36-6 at 10-11, pp. 18:22-19:12. Ms. Vinez does not argue or identify
specific evidence suggesting that Project Laser was itself a discriminatory policy, that
Mr. Mower acted contrary to the implementation document by offering Mr. Moon the
open FPM position, or that Mr. Mower’s decision to offer Mr. Moon the FPM position
was based upon FMLA- or ADA-related animus towards Ms. Vinez. As Sky Chefs
points out, there is no suggestion that Ms. Vinez was more qualified for the FPM
position than Mr. Moon, a fact which, if established, could otherwise suggest that the
decision to offer Mr. Moon the FPM position was pretextual. See Docket No. 38 at 8.
After Mr. Mower offered Mr. Moon the FPM position, it does not appear that Mr. Mower
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considered the FPM position to be open. See Docket No. 36-6 at 10-11, pp. 18:2419:12; Young, 468 F.3d at 1250 (“[t]he relevant inquiry is not whether the employer’s
proffered reasons were wise, fair or correct, but whether it honestly believed those
reasons and acted in good faith upon those beliefs”). Thus, although Ms. Vinez
identified an initial weakness or inconsistency in Sky Chefs’ proffered reason, that
weakness or inconsistency did not persist or remain unexplained during the entire
relevant time period. Moreover, only some situations support an inference of
discrimination from the falsity of the employer’s explanation. See Reeves, 530 U.S. at
147. Given the fact that Sky Chefs was undergoing a corporate restructuring, the
circumstances of this case do not lend themselves to that inference and would not allow
a reasonable factfinder to infer that Sky Chefs is dissembling to cover up a
discriminatory purpose.
Ms. Vinez’ remaining arguments on the issue of pretext – that Sky Chefs’
proffered reason contradicts its Rule 30(b)(6) deposition testimony as well as the
Project Laser implementation document and reduction in force policy – share a similar
flaw. Even assuming that those arguments, alone or collectively, are sufficient for a
factfinder to disbelieve Sky Chefs’ proffered reason, Ms. Vinez does not identify, with
specific citation to the record, sufficient evidence upon which a reasonable juror could
properly conclude that FMLA retaliation or ADA discrimination was a determinative
factor in Mr. Mower’s decision to lay off Ms. Vinez. See Young, 468 F.3d at 1250. As
discussed above, no such evidence is apparent to the Court. Thus, even if the Court
were to bypass the prima facie stage of Ms. Vinez’ claims, Ms. Vinez fails to establish
pretext.
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D. Outrageous Conduct
Having dismissed Ms. Vinez’ claims arising under federal law, the Court turns to
her state law claim for outrageous conduct. The complaint and the final pretrial order
do not allege a proper basis for exercising subject matter jurisdiction over this claim.
See, e.g., Docket No. 1 at 1; Docket No. 41 at 1. In the absence of jurisdictional
allegations to the contrary, the Court finds that 28 U.S.C. § 1367 is the only basis upon
which the Court could potentially exercise jurisdiction over Ms. Vinez’ outrageous
conduct claim. However, this begs the question of whether the Court should exercise
supplemental jurisdiction over Ms. Vinez’ outrageous conduct claim. While courts may
exercise supplemental jurisdiction over state law claims if there is otherwise a
jurisdictional basis for doing so, 28 U.S.C. § 1367(c)(3) states that a court may decline
to exercise jurisdiction over such claims if “the district court has dismissed all claims
over which it has original jurisdiction.” When § 1367(c)(3) is implicated in the Tenth
Circuit, courts are advised to dismiss pendent state law claims “‘absent compelling
reasons to the contrary.’” Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010)
(quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (reversing the district court’s
grant of summary judgment on state law claims); Endris v. Sheridan Cnty. Police Dep’t,
415 F. App’x 34, 36 (10th Cir. 2011) (“any state-law claims for assault and battery or
mental and emotional injury were inappropriate subjects for the exercise of pendent
jurisdiction where all federal claims had been dismissed”). But see Henderson v. Nat’l
R.R. Passenger Corp., 412 F. App’x 74, 79 (10th Cir. 2011) (finding no abuse of
discretion in trial court’s decision to retain jurisdiction over state law claims after plaintiff

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voluntarily dismissed claims arising under federal law). Finding no compelling reason
here to retain jurisdiction, the Court will dismiss Ms. Vinez’ remaining claim for
outrageous conduct without prejudice. See Colo. Rev. Stat. § 13-80-111 (permitting
claims properly commenced within the statute of limitations to be re-filed if involuntarily
dismissed because of lack of jurisdiction); Dalal v. Alliant Techsystems, Inc., 934 P.2d
830, 834 (Colo. App. 1996) (interpreting 28 U.S.C. § 1367(d) as tolling the statute of
limitations while claim is pending in federal court); see also City of Los Angeles v. Cnty.
of Kern, 328 P.3d 56, 65 (Cal. 2014) (noting that interpretations of § 1367(d) vary
between jurisdictions).
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Sky Chefs’ Motion for Summary Judgment [Docket No. 26] is
GRANTED. It is further
ORDERED that Ms. Vinez’ claims for violation of the FMLA and ADA are
DISMISSED with prejudice. It is further
ORDERED that Ms. Vinez’ claim for outrageous conduct is DISMISSED without
prejudice. It is further
ORDERED that this case is DISMISSED in its entirety.

DATED August 3, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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