Boudreau v. Bethesda Foundation of Nebraska
Filing
38
ORDER granting in part and denying in part 29 Motion for Summary Judgment as indicated in the attached Order. By Judge Christine M. Arguello on 01/27/2016. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 1:14-cv-03451-CMA-CBS
CARLY BOUDREAU,
Plaintiff,
v.
BETHESDA FOUNDATION OF NEBRASKA,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY
JUDGMENT
This case involves claims that Defendant Bethesda Foundation of Nebraska
violated Plaintiff’s rights under the Americans with Disabilities Act (“ADA”) and the
Colorado Americans with Disabilities Act (“CADA”). This matter is before the Court on
Defendant’s Motion for Summary Judgment. (Doc. # 29.)
I.
BACKGROUND
Defendant is a faith-based, non-profit organization operating facilities in the
senior living industry. Defendant owns and operates sixteen senior living and senior
care communities in six states, including Colorado. ViewPointe Senior Living
Community (“ViewPointe”), a facility in Colorado Springs, is owned and operated by
Bethesda Senior Living Communities (“BSLC”), a division of Defendant.
In May of 2013, Plaintiff was hired for a housekeeping position at ViewPointe.
(Doc. # 29 at 2.) On May 30, 2013, Plaintiff received and read ViewPointe’s Employee
Manual, which included an ADAA Accommodation provision: “[Defendant] will make
reasonable accommodation for qualified individuals with known disabilities unless in
doing so would result in an undue hardship to the company. Employees needing such
accommodation are instructed to contact their supervisor or Executive Director of
Resources immediately.” (Docs. ## 29–7 at 3; 29–5 at 45–6.) At the time of Plaintiff’s
employment, the housekeeping supervisor was Al Austin and the Executive Director
was Elizabeth Henricks. (Doc. # 29 at 3.)
On Plaintiff’s first day of work, May 31, 2013, Mr. Austin assigned Plaintiff to work
with Terri Montague, ViewPointe’s most tenured lead housekeeper, for training. (Id. at
3–4.) On Plaintiff’s second and last day of work, June 3, 2013, Plaintiff was again
assigned to work with Ms. Montague and worked two to four hours. (Id. at 4.) At some
point during the morning of June 3, 2013, Plaintiff left Ms. Montague’s presence and did
not return. (Id.)
Plaintiff attempted to “get ahold of [Mr. Austin] at the front desk,” but Mr. Austin
was unavailable, thus, she left her walkie-talkie and housekeeper keys with a secretary
and left the premises. 1 (Id. at 5.) Around 10:00 a.m. the same day, Mr. Austin was
alerted to Plaintiff’s departure and called Plaintiff to find out what happened. (Id.)
1
On June 3, 2013, Mr. Austin was on his way to Omaha, Nebraska for work. (Doc. # 29 at 4.)
The walkie-talkie and housekeeper keys, both company property, were “turned-in every single
day when [a housekeeper] left the premises.” (Doc. # 29–5 at 104.)
2
Plaintiff’s mother answered the phone and spoke to Mr. Austin for approximately ten
minutes. (Id.) In describing the phone call, Plaintiff’s mother stated:
He identified himself as Al, I identified myself for who I was, and I
explained that I was taking the call for Carly because she was too upset to
handle the call herself. I explained to Al what had happened, that—I
started off by explaining Carly’s need for Teri to take the time to explain to
Carly how she was cleaning the rooms, and I explained that, because of
the way that Teri was training Carly, the way that she was training Carly
without using enough descriptors and without working slowly enough for
Carly to be able to see what was being done, that Carly needed more
interaction that was of the helpful variety rather than telling her not to have
sex with residents.
So I explained to Al that Carly was something like high-functioning
autistic and that Carly had explained that with her stress level as it went
up, that her tics increased, and the way that Teri was interacting with her
was not helpful. So Al indicated—he used words that Teri was gruff and
he could see how what happened could have happened.
(Doc. # 29–12 at 105:4–16.) When asked what accommodation she asked Mr. Austin
for, Plaintiff’s mother stated:
A. I explained that Carly needed interaction that was helpful for training
her and she needed respectful interaction that didn’t berate her for her
disability.
Q. Is that it? Anything else?
A. Yeah, that was pretty much it. I mean, she had six weeks to train. So
being slow was really not a big deal. You would expect a new hire to be
slow. She expected herself to be slower than Teri. So I didn’t say, Oh,
she needs twice the time to clean this room. I didn’t say anything like that,
because, really, the accommodation she needed was just general
decency from another person to train her with words that were helpful,
like, Use this cleaner for this job, or to help her level set to say, Okay, this
is clean enough. That’s not a huge accommodation.
3
(Id. at 109:10–24.) Plaintiff’s mother described Plaintiff’s interaction with Ms.
Montague as “an interactive problem with the way that Teri was behaving toward
Carly because of Carly’s disability.” (Id. at 110:8–14.) When asked to relay how
Mr. Austin responded, Plaintiff’s mother stated:
A. He told me to tell Carly to, sit tight – those were his words – sit tight
until I get back on Friday. He did not tell me where he was going or why
he was going, just that he was boarding a plane, and I could hear the
sounds of the gate.
Q. What else did he say?
A. Sit tight until I get back, we’ll resolve it.
(Id. at 106:4–10.) Plaintiff never personally made a complaint of any kind directly
to Mr. Austin or Ms. Henricks. (Doc. # 29–5 at 112:11–113:12.)
After the telephone call between Mr. Austin and Plaintiff’s mother, Plaintiff
never returned to ViewPointe. (Doc. ## 1 at 7, 29 at 7.) Defendant claims
Plaintiff’s early departure was interpreted as abandonment or self-termination.
(Doc. ## 29–2 at 53:3–5, 29–3 at 32:13–15) Plaintiff asserts that she was
following Mr. Austin’s instruction to “sit tight” until his return, and did not believe
that she quit her job when she left work early. (Doc. ## 1 at. 7, 29–5 at 129:19–
22.)
Plaintiff claims that she called Mr. Austin on Friday, June 7, 2013, the day
he indicated he would return to work. (Doc. # 1 at 8.) She intended to discuss
“her work situation and next steps.” (Id.) Plaintiff further claims that Mr. Austin
answered her call, and immediately informed her that she was terminated for her
unauthorized departure from work. (Id.)
4
On or about December 3, 2013, Plaintiff filed a charge of disability
discrimination and retaliation against Defendant concerning the circumstances of
her brief employment at ViewPointe. (Doc. # 29–13.) On December 22, 2014,
Plaintiff filed the instant suit bringing eight claims under the ADA and the CADA,
specifically alleging Defendant’s unlawful failure to accommodate her disability,
wrongful termination, unlawful retaliation and unlawful harassment. (Doc. # 1.)
Plaintiff alleges the following incidences of harassment by Ms. Montague during
her two days of employment with Defendant:
•
•
•
•
•
Ms. Montague told Plaintiff that her disability was “all in her head.”
Ms. Montague told Plaintiff she should “get off pills” and that Ms. Montague
would “fix” her.
After Plaintiff disclosed her Tourette’s Syndrome, Ms. Montague asked
questions like “Does that mean you say ‘shit’ and ‘asshole’ all the time?”
After learning of Plaintiff’s anxiety disorder, Ms. Boudreau jumped up and
down in the elevator to make it shake.
Ms. Montague denied Plaintiff’s requests for more direction regarding Ms.
Boudreau’s work duties and expectations.
(Doc. # 1 at 5–6.) On September 1, 2015, Defendant filed a motion for summary
judgment on all of Plaintiff’s claims. (Doc. # 29.) On September 22, 2015,
Plaintiff filed her response (Doc. # 31), to which Defendant replied on October 6,
2015 (Doc. # 32).
II.
STANDARD OF REVIEW
Summary judgment is warranted 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). A fact is “material” if it is essential to the proper
5
disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc.,
259 F.3d 1226, 1231–32 (10th Cir. 2001). A dispute 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, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id. However, conclusory statements based merely on conjecture,
speculation, or subjective belief do not constitute competent summary judgment
evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In
attempting to meet this standard, a movant who does not bear the ultimate burden of
persuasion at trial does not need to disprove the other party’s claim; rather, the movant
need simply point out to the Court a lack of evidence for the other party on an essential
element of that party’s claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met its initial burden, the burden then shifts to the nonmoving
party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party may
not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party
must “set forth specific facts that would be admissible in evidence in the event of trial
from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671.
6
“To accomplish this, the facts must be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated therein.” Id.
When interpreting state statutes, Colorado courts look to federal elements of proof in
employment discrimination cases, especially where, as here, the language of the state
statute closely parallels that of its federal counterpart. See Colorado Civil Rights
Comm'n v. Big O Tires, Inc., 940 P.2d 397, 399 (Colo. 1997). In this case, the four ADA
claims asserted by Plaintiff are paired with four substantially similar claims brought
under the CADA. This Court’s analysis will address each couplet together, using the
elements of proof enunciated in federal law to evaluate Defendant’s motion for summary
judgment.
III.
A.
DISCUSSION
PLAINTIFF’S SECOND AND SIXTH CLAIMS: FAILURE TO ACCOMMODATE
A DISABILITY IN VIOLATION OF THE ADA AND CADA
To establish a prima facie case of failure to accommodate in violation of the ADA,
Plaintiff must show: (1) she is a qualified individual with a disability; (2) the employer
was aware of her disability; and (3) the employer failed to reasonably accommodate the
disability. Allen v. SouthCrest Hosp., 455 F. App'x 827, 836 n.4 (10th Cir. 2011) (citing
Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 747–48 (7th Cir. 2011)). Defendant
argues in its motion for summary judgment that Plaintiff never brought any disability to
the attention of her supervisor and failed to request any accommodations, suggesting
no facts have been set forth sufficient to create a genuine dispute with respect to
elements two and three of the “failure to accommodate” standard. (Doc. # 29 at 10.)
7
This Court disagrees and concludes that the record contains disputed facts sufficient to
raise triable issues with respect to Defendant’s knowledge of Plaintiff’s disability and its
alleged failure to provide reasonable accommodation.
To facilitate the reasonable accommodation of employees with disabilities, “[t]he
federal regulations implementing the ADA envision an interactive process that requires
participation by both parties.” Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619
(10th Cir. 1998); 29 C.F.R. § 1630.2(o)(3). Typically, this interactive process begins
with an employee providing notice to her employer of a disability and any resulting
limitations, and expressing a desire for reassignment if no reasonable accommodation
is possible in the employee’s existing job. Smith v. Midland Brake, Inc., 180 F.3d 1154,
1172 (10th Cir.1999). An employee “need not use magic words,” but “must convey to
the employer a desire to remain with the company despite his or her disability and
limitations.” Id. (citing Taylor v. Phoenixville Sch. Dist., 174 F.3d 142 (3d Cir. 1999));
see also Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir.1998) (“A
request as straightforward as asking for continued employment is a sufficient request for
accommodation.”); EEOC Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act, 1999 WL 33305876, at *4
(“To request accommodation, an individual may use ‘plain English’ and need not
mention the ADA or use the phrase ‘reasonable accommodation.’”).
“Once the employer's responsibilities within the interactive process are triggered
by appropriate notice by the employee, both parties have an obligation to proceed in a
reasonably interactive manner . . . .” Midland Brake, 180 F.3d at 1172. While “[t]he
8
exact shape of this interactive dialogue will necessarily vary from situation to situation
and no rules of universal application can be articulated[,]” “[t]he interactive process
includes good-faith communications between the employer and employee.” Id. at
1172–3. “Neither party may create or destroy liability by causing a breakdown of the
interactive process.” Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242, 1253
(10th Cir. 2004); see also Beck v. University of Wisconsin Bd. of Regents, 75 F.3d
1130, 1135 (7th Cir.1996) (“A party that obstructs or delays the interactive process is
not acting in good faith. A party that fails to communicate, by way of initiation or
response, may also be acting in bad faith.”).
In addressing Defendant’s notice of Plaintiff’s disability, the parties focus
primarily on the phone conversation between Plaintiff’s mother and supervisor Al
Austin. 2 Defendant argues that no facts exist suggesting that Plaintiff or Plaintiff’s
mother ever notified Defendant of a disability or requested reasonable accommodation.
After reviewing the record in the light most favorable to the Plaintiff, this Court finds a
genuine dispute of fact with respect to Defendant’s knowledge of Plaintiff’s disability. In
her deposition, Plaintiff’s mother relates her telephone conversation with Al Austin.
(Doc. # 29–12 at 110–11.) She described to Mr. Austin “an interactive problem”
between Plaintiff and the employee conducting her training and explicitly referenced her
daughter’s “disability.” (Id.) Specifically, she characterized her daughter as “something
For the purposes of this analysis, it is wholly irrelevant that Plaintiff’s mother -- and not
Plaintiff personally – advised Al Austin of her daughter’s disability and requested
accommodation. Under EEOC Guidelines, “a family member, friend, health
professional, or other representative may request a reasonable accommodation on
behalf of an individual with a disability.” EEOC Enforcement Guidance at *4.
2
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like high-functioning autistic.” (Id.) She also indicated that anyone training Plaintiff
would need to work slowly and use appropriate descriptors. (Id. at 105:7–16.) While
the Court believes this testimony alone is sufficient to demonstrate a dispute of material
fact on the element of notice, Plaintiff also points to Defendant’s own internal
investigation, wherein Al Austin acknowledges he knew of Plaintiff’s disability prior to
his conversation with Plaintiff’s mother. (Doc. # 31–3 at 111.) After reviewing the
record, this Court concludes Defendant’s knowledge of Plaintiff’s disability is a matter in
legitimate dispute.
Assuming arguendo that Plaintiff properly notified Defendant of her disability and
requested reasonable accommodation, Defendant argues there are no disputed facts
with respect to its alleged failure to accommodate, because the request for
accommodation came after Plaintiff voluntarily quit her job. (Doc. # 32 at 7.) This Court
disagrees. The facts in the record concerning the status of Plaintiff’s employment
following her early departure from work are unclear. Defendant asserts its belief that
Plaintiff quit. (Doc. ## 29–2 at 53:3–5, 29–3 at 32:13–15) Plaintiff asserts her belief
that she was still employed, and simply following Mr. Austin’s instruction to “sit tight”
until his return. (Doc. ## 1 at. 7, 29–5 at 129:19–22.) Viewing the evidence in the light
most favorable to Plaintiff, this Court presumes Plaintiff did not intend to abandon her
employment. This Court further presumes that Plaintiff’s mother initiated an “interactive
process” when she relayed her daughter’s disability to Mr. Austin and requested
accommodation. This Court finally presumes that less than a week after Plaintiff’s
mother initiated an “interactive process,” Mr. Austin terminated Plaintiff when she called
10
to discuss “her work situation and next steps.” (Doc. # 1 at 8.) Plaintiff has alleged
facts suggesting Defendant responded to the initiation of an interactive process by
terminating its employee, a move clearly at odds with an employer’s duty to engage the
interactive process in good faith. Consequently, this Court concludes the issue of
Defendant’s failure to reasonably accommodate Plaintiff’s disability is in dispute.
Because Plaintiff sets forth specific facts demonstrating genuine disputes on the
issues of Defendant’s knowledge of Plaintiff’s disability and Defendant’s failure to
provide reasonable accommodation for a known disability, this Court declines to grant
Defendant’s motion for summary judgment on Plaintiff’s second and sixth claims for
failure to accommodate a disability in violation of the ADA and CADA.
B.
PLAINTIFF’S THIRD AND SEVENTH CLAIMS: WRONGFUL TERMINATION IN
VIOLATION OF THE ADA AND CADA
If an individual has a protected disability, she may establish a prima facie case of
discriminatory discharge under the ADA by demonstrating that: (1) she was qualified,
with or without reasonable accommodation, to perform the essential functions of her job;
and (2) her employer terminated her employment under circumstances giving rise to an
inference that the action was based on her disability. Selenke v. Medical Imaging of
Colorado, 248 F.3d 1249, 1259 (10th Cir. 2001) (citing Morgan v. Hilti, Inc., 108 F.3d
1319, 1323 (10th Cir. 1997)). To establish the second element, a plaintiff must submit
some affirmative evidence that her disability was a determining factor in the employer’s
decision. Id. The burden is “not onerous,” but it is also “not empty or perfunctory.” Id.
11
If a plaintiff establishes a prima facie case of discriminatory discharge, the
burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the
termination. See Butler v. City of Prairie Village, Kan., 172 F.3d 736, 747 (10th Cir.
1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the
defendant articulates a legitimate reason for terminating the plaintiff’s employment,
establishing a prima facie case is not sufficient to avoid summary judgment. Selenke,
248 F.3d at 1260. Instead, the plaintiff must then offer evidence that the defendant’s
proffered reason is a pretext for discrimination. See Conner v. Schnuck Markets, Inc.,
121 F.3d 1390, 1396 (10th Cir. 1997) (stating that “even though a plaintiff has
established a prima facie case, the defendant is entitled to summary judgment unless
the plaintiff produces either direct evidence of discrimination or evidence that the
defendant’s proffered reason for the action taken is pretextual”). “[A] plaintiff can
establish pretext by showing the defendant’s proffered non-discriminatory explanations
are ‘so incoherent, weak, inconsistent, or contradictory that a rational factfinder could
conclude [they are] unworthy of belief.’” Johnson v. Weld Cnty., Colo., 594 F.3d 1202,
1211 (10th Cir. 2010) (alteration in original) (quoting Hinds v. Sprint/United Mgmt. Co.,
523 F.3d 1187, 1197 (10th Cir. 2008)).
When evaluating a contention of pretext, this Court must assess the facts “as
they appear to the person making the decision to terminate [the] plaintiff.” Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000). This Court will not
second guess the business judgment of the employer. Simms v. Oklahoma ex rel.
Dept. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.
12
1999). The relevant question is always whether the reason articulated by the employer
was the true reason for the termination. Selenke, 248 F.3d at 1261.
As a threshold issue, Defendant again asserts that it did not terminate Plaintiff, a
fact which would necessarily defeat a claim for wrongful discharge. (Doc. # 29 at 13.)
For the reasons discussed supra, this Court again concludes that the record is
ambiguous with respect to Plaintiff’s employment status following her early departure
from work. Viewing the evidence in the light most favorable to the Plaintiff, this Court
presumes that Plaintiff did not intend to quit when she left work early and that Defendant
terminated Plaintiff over the phone on June 7, 2013. (Doc. # 1 at 8.)
Defendant argues in the alternative that Plaintiff’s claim does not meet the prima
facie standard for wrongful discharge because she fails to identify any facts which “tend
to show that [Defendant] decided to discharge [Plaintiff], even in part, because she was
disabled.” (Doc. # 29 at 14) (emphasis in original). In her complaint, Plaintiff leans on
the temporal connection between her mother’s alleged initiation of the interactive
process and Plaintiff’s subsequent termination a matter of days later. (Doc. # 1 at 12.)
This Court concludes Plaintiff has alleged a fact sufficient to make out a prima facie
claim for wrongful discharge. See Selenke, 248 F.3d at 1260 (Plaintiff’s discharge
within a month of a request for accommodation was evidence indicating at most that
she had established a prima facie case for wrongful discharge); Butler,172 F.3d at 752
(noting that protected conduct closely followed by adverse action may justify an
inference of retaliatory motive).
13
In accordance with the McDonnell Douglas burden shifting framework, Defendant
articulates its legitimate, nondiscriminatory reason for termination, namely that Plaintiff
walked off the job. (Doc. # 29 at 14.) In order for the wrongful discharge claims to
survive summary judgment, Plaintiff must now demonstrate that Defendant’s proffered
reason for termination is pretextual. See Conner, 121 F.3d at 1396. Plaintiff deploys
three arguments to show pretext, all of which will be addressed in turn, and none of
which this Court finds persuasive.
First, Plaintiff addresses Defendant’s policy to terminate any employee that
abandons work. (Doc. # 31 at 15.) Defendant acknowledges its policy that any
employee leaving work without permission will be terminated, but notes an exception for
anyone experiencing a “life-threatening emergency or something.” (Id.) Plaintiff argues
that Defendant’s failure to include in the exception employees experiencing severe
distress brought on by a disability somehow suggests that Defendant’s decision to
terminate Plaintiff for walking off the job is a pretextual justification and that Defendant
was actually motivated by discriminatory intent. That argument is without merit. In
reality, the existence of the policy demonstrates that Defendant treated Plaintiff exactly
how it would treat any other employee that walked off the job under circumstances that
did not implicate a life threatening emergency. This Court agrees with Plaintiff’s related
declaration that she need not show as a precondition to pretext other similarly situated
employees were treated differently after walking off the job. (Doc. # 31 at 16); See
Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1137 (10th Cir. 2003) (noting
pretext may be shown by a variety of evidence and no one type of evidence is required).
14
However, it is also true that failure to present probative evidence that the plaintiff was in
fact treated differently than those similarly situated may weigh in favor of granting
summary judgment. Doebele, 342 F.3d at 1137.
Second, Plaintiff argues that Defendant’s failure to adequately investigate the
offense for which she was terminated suggests that its justification is pretextual.
Plaintiff relies on Smothers v. Solvay Chemicals, Inc., which holds that an employer’s
proffered reason for termination may be “undermined by evidence the company failed to
adequately investigate the offense for which it purportedly fired the plaintiff.” 740 F.3d
530, 539 (10th Cir. 2014). That case is clearly distinguishable on the facts. In
Smothers, the plaintiff was terminated after exhibiting behavior characterized as
“violent,” “hostile,” and “aggressive.” Id. at 542. The behavior was reported to
supervisors by another employee, but the plaintiff emphatically denied the
characterization of his behavior. After failing to investigate the true nature of the
disputed behavior, the employer terminated the plaintiff. In this case, the nature of the
offense that led to Plaintiff’s termination – walking off the job – is not in dispute. Plaintiff
admits in her complaint that she left work early and to the extent that Defendant was
required to investigate the nature of an offense that was not in dispute, Al Austin
confirmed Plaintiff’s early departure for reasons not related to a life threatening medical
emergency when he spoke to Plaintiff’s mother on the day of the incident. (Doc. 1 at 7.)
Third, Plaintiff argues Defendant’s justification for her termination is pretextual
because the proffered explanations for its actions are “so incoherent, weak,
inconsistent, or contradictory that a rational factfinder could conclude [they are]
15
unworthy of belief.” (Doc. # 31 at 17); Johnson, 594 F.3d at 1211. In support of this
argument, Plaintiff points to conflicting evidence in the record with respect to the issue
of whether she voluntarily quit or was terminated by Defendant. (Id. at 17.) This Court
has already acknowledged the considerable ambiguity concerning the status of
Plaintiff’s employment following her early departure from work. While it is true
Defendant first argues that Plaintiff voluntarily quit, the proffered explanation for
discharge it raises in the alternative has been perfectly consistent: Plaintiff was
terminated for leaving work early.
In consideration of the foregoing, Plaintiff has failed to rebut Defendant’s
proffered reason for her termination with a factual showing that the explanation is
incoherent, weak, inconsistent, or contradictory, such that a rational factfinder could
conclude it is unworthy of belief. This Court therefore concludes that Defendant’s
explanation is not pretextual, but a legitimate, nondiscriminatory justification for
terminating Plaintiff. Accordingly, this Court grants Defendant’s motion for summary
judgment on Plaintiff’s third and seventh claims for wrongful termination in violation of
the ADA and CADA.
C.
PLAINTIFF’S FOURTH AND EIGHTH CLAIMS: UNLAWFUL RETALIATION IN
VIOLATION OF THE ADA AND CADA
To establish a prima facie case of unlawful retaliation under the ADA, Plaintiff
must show: (1) that she engaged in protected opposition to discrimination, (2) that a
reasonable employee would have found the challenged action materially adverse, and
(3) that a causal connection existed between the protected activity and the materially
16
adverse action. Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007).
With respect to element three, a retaliatory motive may be inferred when an adverse
action closely follows protected activity. Piercy v. Maketa, 480 F.3d 1192, 1198 (10th
Cir. 2007). Once a plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the adverse action.
McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006). If the employer does
so, the burden shifts back to the plaintiff to show that the employer's reason is
pretextual. Id. (citing McDonnell Douglas, 411 U.S. 792, 802 (1973)).
Defendant argues Plaintiff cannot establish that she engaged in protected activity
or, in the alternative, that a causal nexus existed between an alleged complaint of
discrimination and her discharge. (Doc. # 29 at 15.) This Court already found sufficient
facts pointing to a dispute on the issue of whether Plaintiff initiated an ADA “interactive
process” when her mother allegedly reported Plaintiff’s disability and requested
accommodation during the conversation with Al Austin. Requests for accommodation
are undoubtedly protected activity under the ADA. Jones v. U.P.S., Inc., 502 F.3d 1176,
1194 (10th Cir. 2007). To demonstrate a causal nexus, Plaintiff again leans on the
temporal relationship between her alleged complaint and subsequent discharge days
later. (Doc. # 31 at 20.) Because “a retaliatory motive may be inferred when an
adverse action closely follows protected activity” (Piercy, 480 F.3d at 1198), this Court
finds Plaintiff has raised sufficient facts to establish a prima facie claim for unlawful
retaliation.
17
In accordance with the McDonnell Douglas burden shifting framework, Defendant
again articulates its presumptively legitimate and nondiscriminatory reason for
terminating Plaintiff, namely that she walked off the job. (Doc. # 32 at 10.) The burden
now shifts back to Plaintiff, and requires a showing that the proffered justification is
pretext. Plaintiff’s response is a pro forma recitation of the arguments she deployed to
demonstrate pretext in relation to her unlawful termination claims (Doc. # 31 at 20), all
of which were addressed in detail supra and none of which were persuasive. Because
Plaintiff fails to raise any evidence which could lead a rational factfinder to conclude that
Defendant’s proffered explanation for her termination is pretextual, this Court grants
Defendant’s motion for summary judgment on claims four and eight for unlawful
retaliation under the ADA and CADA.
D.
PLAINTIFF’S FIRST AND FIFTH CLAIMS: UNLAWFUL HARASSMENT IN
VIOLATION OF THE ADA AND CADA
Courts have applied a modified parallel Title VII methodology to evaluate causes of
action based on a harassing or hostile work environment brought under the ADA. See
Fox v. General Motors Corp., 247 F.3d 169, 177 (4th Cir. 1999); Peru v. T-Mobile USA,
Inc., 897 F. Supp. 2d 1078, 1090–91 (D. Colo. 2012). In order to make out a prima
facie case of unlawful workplace harassment under the ADA, Plaintiff must show: (1)
she is a qualified individual with a disability; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on her disability; (4) the harassment was
sufficiently severe or pervasive to alter a term, condition, or privilege of employment;
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and (5) some factual basis exists to impute liability for the harassment to the employer.
Id.
A showing of pervasiveness requires more than a few isolated incidents of disabilitybased animosity. Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994). “Instead,
there must be a steady barrage of opprobrious . . . comments.” Chavez v. New Mexico,
397 F.3d 826, 832 (10th Cir. 2005). Although the pervasiveness and severity inquiry is
usually a question of fact, see O'Shea v. Yellow Tech. Servs., Inc. ., 185 F.3d 1093,
1098 (10th Cir.1999), summary judgment is appropriate if the alleged harassment was
not sufficiently pervasive or severe to support a hostile work environment claim. See,
e.g., Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1365–66 (10th Cir. 1997)
(concluding five separate incidents of allegedly offensive comments either directed at
the plaintiff or made in her presence were not sufficiently pervasive to support a hostile
work environment claim); Morris v. City of Colorado Springs, 666 F.3d 654, 666 (10th
Cir. 2012) (determining there was insufficient evidence for a jury to find that the alleged
harassment was pervasive); cf. Chavez, 397 F.3d at 833–36 (finding sufficient evidence
of a hostile work environment based upon extensive sexual discrimination where there
was evidence that the plaintiffs had been subjected both to a “number of gender-based
incidents” occurring over a long period of time, including sexual propositions, and
“multiple incidents of hostile and physically threatening conduct”).
Plaintiff points to the following incidences of alleged harassment during her two days
of employment with Defendant:
•
Ms. Montague told Plaintiff that her disability was “all in her head.”
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•
•
•
•
Ms. Montague told Plaintiff she should “get off pills” and that Ms. Montague
would “fix” her.
After Plaintiff disclosed her Tourette’s Syndrome, Ms. Montague asked
questions like “Does that mean you say ‘shit’ and ‘asshole’ all the time?”
After learning of Plaintiff’s anxiety disorder, Ms. Boudreau jumped up and
down in the elevator to make it shake.
Ms. Montague denied Plaintiff’s requests for more direction regarding Ms.
Boudreau’s work duties and expectations.
(Doc. # 1 at 6.) Even if one assumes that each of these acts are the product of
discriminatory animus and not the ignorance of Defendant’s employee, this Court
determines that Plaintiff has simply failed to raise sufficient evidence for a rational
factfinder to conclude that the harassment was so pervasive as to alter a term,
condition, or privilege of Plaintiff’s employment. Plaintiff also fails to articulate with
specificity why the relatively benign antics of Ms. Boudreau are sufficiently severe. This
Court has conducted a thorough review, uncovering a litany of cases implicating more
egregious conduct where the alleged harassment was insufficiently severe to be
actionable as discrimination. See, e.g., Mendoza v. Borden, Inc., 195 F.3d 1238, 1246–
47 (11th Cir. 1999) (collecting cases determining that harassing conduct was not
sufficiently sever to be actionable discrimination under Title VII).
Defendant raises a number of arguments addressing whether Ms. Boudreau’s
conduct even rises to the level of harassment, and if it does, whether that harassment
was actually directed at or driven by Plaintiff’s disability. This Court need not address
those arguments and declines to do so. After reviewing the evidence in the light most
favorable to the Plaintiff and assuming arguendo that Ms. Boudreau’s conduct both
constitutes harassment and is motivated by discriminatory intent, this Court concludes
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the harassment was neither pervasive nor severe, such that it altered a term, condition,
or privilege of Plaintiff’s employment. Accordingly, this Court grants Defendant’s motion
for summary judgment on claims one and five for unlawful harassment under the ADA
and CADA.
IV.
CONCLUSION
Based on the foregoing, the Court ORDERS that Defendant’s Motion for Summary
Judgment (Doc. # 29) is GRANTED IN PART AND DENIED IN PART. The Motion is
granted insofar as Plaintiff’s claims for unlawful termination (Claims 3 and 7), unlawful
retaliation (Claims 4 and 8), and unlawful harassment (Claims 1 and 5) are DISMISSED
WITH PREJUDICE. Because there are disputed issues of material fact relating to
Plaintiff’s claims for unlawful failure to accommodate a disability (Claims 2 and 6), the
Motion is denied as to these claims.
DATED: January 27, 2016
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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