Waters v. Rocky Mountain Conference of Seventh-Day Adventists

Filing 38

OPINION AND ORDER granting in part and denying in part 29 Motion for Summary Judgment by Chief Judge Marcia S. Krieger on 7/20/18. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 17-CV-0144-MSK-STV
LAURA WATERS,
Plaintiff,
v.
ROCKY MOUNTAIN CONFERENCE OF SEVENTH-DAY ADVENTISTS,
Defendant.

OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court on the Defendant’s Motion for Summary
Judgment (# 29), the Plaintiff’s Response (# 32), and the Defendant’s reply (# 37).

For the

following reasons, the Motion is granted, in part.
I.

JURISDICTION

The Court exercises jurisdiction under 28 U.S.C. § 1331.
II.

BACKGROUND1

Plaintiff Laura Waters was a teacher at Columbine Christian School, part of the Rocky
Mountain Conference of Seventh-Day Adventists (the Conference), from 2008 to 2013.

In

January 2012, Ms. Waters suffered multiple injuries after falling on a hill while she was
supervising students sledding during recess. Her injuries required multiple surgeries and time
away from the classroom to recuperate.

After a jaw surgery over spring break during the

1

The Court recounts the undisputed facts and the disputed facts in the light most favorable to
Ms. Waters, the nonmoving party. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213
(10th Cir. 2002).
1

2012-2013 academic year, Ms. Waters was placed on a four-hour work restriction by her
physician, Dr. Randal Jernigan.

Ms. Waters had a second jaw surgery scheduled for May 24,

2013.
On May 2, 2013, Ms. Waters informed Principal May Oles that she had been “diagnosed
with a physical disability” and was “not sure if she can teach ever again”.

When Principal Oles

told Ms. Waters that she wanted to know her doctor’s opinion as to whether or not she courld
work, Ms. Waters responded that she was not making any decisions about teaching during the
2013-2014 school year until she got more information from her doctor. Principal Oles initially
asked Ms. Waters to tell her if could return for the next school year by May 15, but then
extended the deadline for such information until May 21.

On May 20, Ms. Waters sent

Principal Oles a text message stating that it was her full intent to return to teach after a summer
of healing.
Principal Oles would have “loved” to have had Ms. Waters return working with the same
accommodations that the school gave her in 2012-2013, but on May 23 the school board
unanimously decided not to renew Ms. Waters’ contract. On May 30, Dr. Jernigan placed Ms.
Waters on a no-work restriction due to a second jaw surgery. This no-work restriction
continued to June 17 and then from July 23 to September 5, 2014.
In her Complaint (# 4), Ms. Waters brings suit alleging disparate treatment, failure to
accommodate, and retaliation under the Americans with Disabilities Act (ADA). The
Conference moves for summary judgment (# 29).
III.

LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995).

2

Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). Substantive law

governs what facts are material and what issues must be determined.

It also specifies the

elements that must be proved for a given claim or defense, sets the standard of proof, and
identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248 (1986); Kaiser-Francis Oil Co. v. Producers Gas Co., 870 F.2d 563, 565 (10th Cir. 1989).
A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in
support of and opposition to the motion is so contradictory that, if presented at trial, a judgment
could enter for either party. See Anderson, 477 U.S. at 248.

When considering a summary

judgment motion, a court views all evidence in the light most favorable to the non-moving party,
thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213
(10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A).

Once the moving party has met its burden, to avoid summary judgment the

responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material
fact, no trial is required. The court then applies the law to the undisputed facts and enters
judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.

3

If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
IV.

DISCUSSION

The Conference moves for summary judgment on all three of Ms. Waters’ claims,
arguing that she cannot establish a prima facie case on any.
A.

Discrimination
It is unlawful to discriminate against an individual on the basis of disability with respect

“to job application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
U.S.C. § 12112(a).

42

Ms. Waters brings her discrimination claim on two distinct theories:

disparate treatment on the basis of her disability and a failure to accommodate her disability.
1.

Disparate Treatment

To prevail on a disparate treatment or discrimination claim under the ADA, Ms. Waters
must show that the Conference intentionally discriminated against her for a reason prohibited by
the statute. Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1306 (10th Cir. 2005). Ms.
Waters must have evidence to establish that (1) she is disabled as defined by the Act; (2) she was
qualified, with or without reasonable accommodation, to perform the essential functions of the
job held or desired; and (3) the Conference discriminated against her because of her disability.
See Mackenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005).

To demonstrate

discrimination under the third element, Ms. Waters must show that she suffered an “adverse
employment action because of the disability.” EEOC v. C.R. England Inc., 644 F.3d 1028,

4

1037–38 (10th Cir. 2011).
If Ms. Waters makes out a prima facie claim, but there is no direct evidence of
discrimination, the Court applies the burden-shifting framework outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–03 (1973). McDonnell Douglas applies to Ms. Waters’
ADA claim.

See Jaramillo, 427 F.3d at 1306. Once Ms. Waters makes her showing, the

burden shifts to the Conference to articulate a legitimate, nondiscriminatory reason for its
employment actions.

If the Conference proffers such reason, the burden then shifts back to Ms.

Waters to ultimately show that the stated reasons are merely “pretextual.” McDonnell Douglas,
411 U.S. at 804–05.
The Conference moves for summary judgment on this claim based on two arguments:
(1) Ms. Waters cannot show the second element — that she was qualified under the ADA —
because she was proscribed from working altogether and thus unable to perform the job; and (2)
it has legitimate, nondiscriminatory reasons for discharging Ms. Waters.
On May 23, 2013, when the board decided not to renew Ms. Waters’ contract, she was on
a half-day restriction that had resulted in an accommodation. Her doctor, Dr. Jernigan did not
place Ms. Waters on a full-time no-work restriction until May 30, after her contract for school
year 2012-2013 was performed and after the board had decided not to renew her contract for the
next year. Thus, at the time of the Conference’s decision, Ms. Waters was qualified under the
ADA.
The Conference also argues that it had legitimate, nondiscriminatory reasons for not
renewing Ms. Waters’ contract.

In particular, it contends that (1) Ms. Waters was not clear in

communicating to Principal Oles whether she would be able to return the following school year
and (2) Ms. Waters’ performance was unacceptable.

5

The Conference says that it needed a clear

answer about Ms. Waters’ ability to work in 2013-2014 because parents, in turn, needed the
information to determine whether their children would reenroll the next year.

The Conference

characterizes Ms. Waters’ answer to Principal Oles’ question about returning for the upcoming
school year as ambiguous — “it’s my full intent to be here full time this upcoming year.”
#32-1 at 71; see # 29-2 at 26. Ms. Waters repeats the statement in her affidavit, “After I texted
Ms. Oles on May 20, 2013 that it was my full intent to return the next school year and I expected
to heal over the summer, I expected to teaching for Columbine Christian that fall”. See # 32-1 at
63.

The Conference states that it terminated Ms. Waters due to the ambiguity.
The Conference also states that it had several problems with Ms. Waters’ performance.

Specifically, it identifies that:


Ms. Waters shared too many personal details with parents and cried in front of
students. # 29-2 at 22.



Ms. Waters failed to apprise school administrators of a planned absence, which
caused a “mad scramble” to cover her class.

# 29-2 at 22, 28.



Ms. Waters left one substitute teacher with no lesson plan or schedule.



Parents had complained about Ms. Waters.



Ms. Waters had a volunteer parent cover her class without notifying school
administrators.



# 29-2 at 30.

# 29-2 at 34 ¶ 5.

Some parents told school administrators that their students would not return the next
year if Ms. Waters remained a teacher.



# 29-2 at 28.

# 29-2 at 32.

A parent complained that Ms. Waters solicited money from parents.

# 29-2 at 22,

29-1 at 31 (104:2–15).
Taken as true, the evidence would show legitimate, nondiscriminatory reasons for not

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renewing Ms. Waters’ contract.

The burden thus shifts to Ms. Waters to demonstrate that each

of these justifications were pretextual, and that the real justification for discharging her was her
disability. See Tyler v. RE/MAX Mtn. States Inc., 232 F.3d 808, 814 (10th Cir. 2000). Pretext
can be established by producing evidence of “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the Conference’s proffered reason that a reasonable trier of
fact could rationally conclude that the proffered reason is untrue. Jaramillo, 427 F.3d at 1308.
The Court is mindful that when evaluating pretext, the pertinent question is not whether the
employer’s proffered reasons were right, wise, or fair, but whether the employer honestly
believed those reasons and acted in good faith upon those beliefs.

Stover v. Martinez, 382 F.3d

1064, 1076 (10th Cir. 2004).
Ms. Waters argues that the Conference’s justification based on her failure to confirm her
ability to return for the 2013-2014 school season was pretextual. She states that she did not
think she needed to say more than what she did and that there was no deadline to do so.
# 32-1 at 63 ¶ 7.

See

There is a genuine issue of fact as to the existence of a hard deadline, what

information needed to be conveyed by the deadline, and whether the request was as to Ms.
Waters’ physical ability to teach or as to her intent to do so. Much of the communication
between Ms. Waters and Principal Oles is by text with varying subject matter interjected at
multiple points in time. See # 32-1 at 71–80. Given the imprecision and confusion in the
communication, a jury could reasonably find as pretextual the justification that Ms. Waters had
failed to supply complete and timely information about her return for the following school year.
There is also sufficient evidence to suggest that performance issues were pretext for not
renewing Ms. Waters’ contract.

Principal Oles testified that she would have “loved” to have

Ms. Waters back, even with the same accommodations she had at the end of the 2012-2013

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academic year, and that it was lack of clarity as to whether Ms. Waters could return that justified
not renewing her contract.2
In sum, there is sufficient evidence in the record to cast doubt on the Conference’s
proffered reasons.

As a consequence, Ms. Waters has made a prima facie showing of

discrimination in violation of the ADA.

There are genuine issues of material fact requiring a

jury trial.
2.

Failure to Accommodate

The ADA provides that an employer is obligated to make any “reasonable
accommodations” that may be necessary in order to permit a qualified disabled employee with
the ability to perform the essential functions of the job. 42 U.S.C. § 12112(a) (defining
“discrimination” under the ADA to include “not making reasonable accommodations”).

To

establish a prima facie case of failure to accommodate in violation of the ADA, Ms. Waters 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. See Allen v.
SouthCrest Hosp., 455 F. App’x 827, 836 n.4 (10th Cir. 2011) (citing Kotwica v. Rose Packing
Co., 637 F.3d 744, 747–48 (7th Cir. 2011)).

The employee must demonstrate the existence of a

facially reasonable accommodation; the burden then shifts to the employer to demonstrate that it
was unable to provide that accommodation within the terms of the ADA.
Dep’t of Corr., 587 F.3d 1255, 1264 (10th Cir. 2009).

Hennagir v. Utah

The request for an accommodation does

not have to be in writing or be formally made or invoke the “magic words” requesting a
reasonable accommodation, but it must make clear that the employee wants assistance with her

2

This deposition testimony is quoted in the Conference’s motion but is not included in the
record — it cuts off one page earlier, but the Court accepts the Conference’s representation of
Principal Oles deposition as if it were properly included in the record.
8

disability. C.R. England, 644 F.3d at 1049.
The Conference argues that it accommodated all of requests that Ms. Waters made.
Waters responds that she was not accommodated in two ways.

Ms.

First, she appears to argue that

she requested an accommodation of full-time leave over the summer break.

However, this is

contradicted by Ms. Waters’ admission that all teachers had leave from work over the summer.
See # 32 at 10.

Since all able-bodied employees had leave over the summer, any request by Ms.

Waters to have leave would not constitute an accommodation.3
Ms. Waters identifies only one other accommodation that the Conference failed to
provide — failing to adjust its performance standards commensurate with her reduced classroom
time.

Specifically, she characterizes some of the Conference’s reasons for not renewing her

contract as in the nature of “inconsistency in the classroom”.

According to Ms. Waters, this is

shorthand for problems that resulted from having two teachers in the classroom each day — Ms.
Waters in the morning and another teacher in the afternoon. Apparently, the shift in
responsibilities resulted in complaints from parents about students being sent home without
books or other materials, confusion about classroom policies, and Ms. Waters not meeting
outside of school hours. Although the failure to modify performance expectations to match
accommodations can be considered a failure to make an accommodation, this argument really
directed to whether the Conference’s justifications for not renewing Ms. Water’s contract were
pretextual. Accordingly, this claim is dismissed.
B.

Retaliation

3

There is an alternate interpretation of Ms. Waters’ argument, however. It could be that she
is arguing that the Conference should have given her more time to recover and gather
information about whether she could return for the next school year. To the extent that this is
what Ms. Waters intends to argue, it is not clear how this constitutes an accommodation. It
may, however, be material in considering whether the justifications given by the Conference
were pretextual.
9

The ADA prohibits retaliation against employees who engage in conduct protected by
that Act.

42 U.S.C. § 12203(a).

The analysis of an ADA retaliation claim parallels that of a

Title VII retaliation claim. C.R. England, 644 F.3d at 1051.

First, Ms. Waters must establish

the three elements of her prima facie case: (1) she engaged in protected activity under the Act,
(2) she was subjected to an adverse employment action by the employer after or during the
protected activity, and (3) a causal connection exists between the protected activity and the
adverse employment action. Anderson v. Coors Brewing Co., 181 F.3d 1171 1178 (10th Cir.
1999).
The Conference argues that Ms. Waters did not engage in protected activity and if she
did, its legitimate, nondiscriminatory reasons for not renewing her contract are sufficient to grant
summary judgment on the retaliation claim.

Particularly, the Conference points to Ms. Waters’

deposition testimony, wherein she stated that she never made any complaint of any perceived
discrimination.

Retaliation, however, does not live and die on formal complaints of

discrimination.

Merely requesting an accommodation is sufficient to constitute protected

activity.

See Jones v. UPS Inc., 502 F.3d 1176, 1194 (10th Cir. 2007). Here, Ms. Waters

sought a number of accommodations for a disability, reasonably exercising her rights under the
ADA to continue working throughout her medical procedures.

The Conference’s reading of

what constitutes protected activity is too narrow.
With regard to the Conference’s reasons for termination, the factual issues and evidence
suggesting pretext are just as applicable to Ms. Waters’ retaliation claim.

Accordingly, this

claim shall proceed to trial as well.4

4

There is an apparent overlap between the disparate-treatment claim and the retaliation claim
when the only protected activity was exercising her rights to an accommodation under the ADA.
In this case, the alleged discrimination is you cannot have this job because you need an
10

V.

CONCLUSION

For the foregoing reasons, the Defendant’s Motion for Summary Judgment (# 29) is
GRANTED IN PART.

The Plaintiff’s failure-to-accommodate claim is DISMISSED.

motion is DENIED in all other respects.

The

In accordance with the Trial Preparation Order (# 28),

the parties shall file a joint final pretrial order, proposed voir dire questions, and proposed jury
instructions. The parties shall jointly contact the Court within 14 days to schedule a final
pretrial conference.
Dated this 20th day of July, 2018.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

accommodation and the alleged retaliation is you cannot this job because you need an
accommodation. The Court does not intend to submit duplicative claims to the jury, so counsel
should be prepared to address the overlap at the final pretrial conference.
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