Pittman v. American Airlines Group, Inc.

Filing 127

OPINION AND ORDER by Judge Claire V Eagan ; granting 87 Motion for Summary Judgment; finding as moot 90 Motion in Limine; finding as moot 92 Motion in Limine; finding as moot 118 Motion for Leave to File Document(s); finding as moot 119 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s); finding as moot 122 Objection to Deposition Designations; finding as moot 125 Objection to Deposition Designations (Re: 2 Complaint, ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

ANNA MARIE PITTMAN,
Plaintiff,
v.
AMERICAN AIRLINES, INC.,
Defendant.

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Case No. 14-CV-0728-CVE-FHM

OPINION AND ORDER
Now before the Court is Defendant American Airlines, Inc.’s Motion for Summary Judgment
and Brief in Support (Dkt. # 87). Defendant asks the Court to grant summary judgment in its favor,
arguing that the undisputed facts show that plaintiff signed a settlement agreement releasing all
claims against defendant. Id. at 7. In the alternative, defendant argues that plaintiff has failed to
make a prima facie showing of discrimination based on her sex, race, or alleged disability or a
prima facie showing of retaliation, and fails to demonstrate pretext. Id. at 7-8. Plaintiff responds
that the settlement agreement is unenforceable because it is not a knowing and voluntary waiver of
all her claims against defendant and asserts that she has established a prima facie case and
demonstrated pretext as to her disability and retaliation claims. Dkt. # 96.1 Defendant has filed a
reply. Dkt. # 106.

1

The Court cites Dkt. # 96 as plaintiff’s response to defendant’s motion for summary
judgment. The Court has reviewed plaintiff’s original response (Dkt. # 96) and the
numerous errata plaintiff filed (Dkt. ## 98, 99, 102), which do not alter substantively
plaintiff’s response. For the sake of clarity, the Court cites plaintiff’s original response (Dkt.
# 96) only.

I.
Plaintiff, an African American female, served as a building cleaner in defendant’s Tulsa
plant. Dkt. # 87, at 8; Dkt. # 96, at 12. Defendant outsourced all of its building cleaner positions
in 2012, but negotiated with its union to allow former building cleaners to bid into maintenance
support positions. Dkt. # 87, at 9; Dkt. # 96, at 12. One of these maintenance support positions was
a hazardous waste maintenance position. Dkt. # 87, at 9; Dkt. # 96, at 12. Plaintiff and five other
former building cleaners voluntarily bid into this position. Dkt. # 87 at 9; Dkt. # 96, at 12. Of the
five other building cleaners who bid into this position, two were African-American females, two
were African-American males, and one was a Caucasian male. Dkt. # 87, at 9; Dkt. # 96, at 12. The
hazardous waste maintenance support position requires handling, transportation, and clean up of
various different chemicals used at defendant’s facility. Dkt. # 87 at 9; Dkt. # 96, at 12. A critical
aspect of this position is the ability to safely clean up both large and routine chemical spills. Dkt.
# 87, at 9; Dkt. # 96, at 12.
Defendant provided plaintiff and the five other employees with classroom and on-the-job
training to help them transition into this position. Dkt. # 87, at 10; Dkt. # 96, at 12. As part of this
training, plaintiff shadowed senior hazardous waste maintenance support employees for six months.
Dkt. # 87, at 10; Dkt. # 96, at 12. After six months, hazardous waste maintenance support
employees are expected to be able to work independently and, after 180 days in the positions, must
pass a test to demonstrate their qualifications. Dkt. # 87, at 10; Dkt. # 96, at 12-13. The test is
designed to ensure that employees understand how to handle, remediate, and dispose of hazardous
chemicals safely. Dkt. # 87, at 10; Dkt. # 96, at 13. Because different chemicals require different
safety gear and remediation techniques, employees must be able to look up specific chemicals in an

2

online database and be able to read and understand information about safety precautions and cleanup techniques unique to specific chemicals. Dkt. # 87, at 10; Dkt. # 96, at 12.

Plaintiff

acknowledges that the first step in any remediation effort is to utilize the database to look up a
specific chemical. Dkt. # 87, at 10; Dkt. # 96, at 12. A hazardous waste maintenance employee’s
failure to identify and utilize the proper safety gear or remediation technique could result in serious
property damage, bodily injury, or death. Dkt. # 87, at 10; Dkt. # 96, at 13.
The so-called 180-day test consists of ten questions that require the employee to demonstrate
her knowledge of the proper handling, remediation, and disposal procedures for various hazardous
chemicals. Dkt. # 87, at 10; Dkt. # 96, at 13. Before the 180-day test, defendant made available to
plaintiff and the five other employees who were transitioning to the hazardous waste maintenance
positions a set of twenty-five questions, from which ten questions would be drawn for the exam.
Dkt. # 87, at 11; Dkt. # 96, at 12. Plaintiff also received at least two-weeks’ notice of her test date,
and met with her crew chief, to prepare for and practice taking the exam. Dkt. # 87, at 11; Dkt. #
96, at 13.
Plaintiff asserts that she suffers from dyslexia and hearing loss in both ears. Dkt. # 96, at 7.
Plaintiff alleges that she was diagnosed with dyslexia over thirty years ago, and defendant was aware
that she suffered from both hearing loss and a learning disability, identifying personnel file materials
containing such notations. Dkt. # 96, at 7; Dkt. # 102, at 128. Plaintiff asserts that due to her
dyslexia, she needs to take exams orally. Dkt. # 96, at 8. Plaintiff asserts that she notified her direct
supervisor, Richard Gilmore, that she had difficulty reading and requested oral exams, but
acknowledges that she did not tell Gilmore that her difficulty reading was due to dyslexia. Dkt. #
87-1, at 29. Despite plaintiff’s dyslexia, she graduated from high school, attended vocational

3

training to work as a nursing aide, and worked as a nurse’s aid. Id at 12. During preparation for the
180-day test, plaintiff complained to Gilmore that she was not receiving proper preparation for the
test because she was a black female and wanted more training, but made no complaints about
inadequate preparation due to her dyslexia or hearing problems. Dkt. # 87, at 15; Dkt. # 96, at 11.
On December 4, 2013,2 Technical Operations Training Instructor Ray Richardson, an
African-American male, orally administered plaintiff’s test. Dkt. # 87, at 11; Dkt. # 96, at 12. One
of the test questions required plaintiff to demonstrate the proper procedure for cleaning up a
hazardous waste spill. Dkt. # 87, at 11; Dkt. # 96, at 12. Richardson observed that plaintiff was
neither able to utilize the online database to look up the specific chemical, nor explain the proper
remediation technique. Dkt. # 87-6, at 2. Based on these observations, Richardson determined that
plaintiff had failed the test. Dkt. # 87, at 11; Dkt. # 96, at 14. Josh Voss, defendant’s Human
Resources Representative, informed plaintiff that defendant was terminating plaintiff’s employment
based on her failure of the 180-day test. Dkt. # 87, at 11; Dkt. # 96, at 12. The five other former
building cleaners who were transitioning to hazardous waste maintenance positions all passed their
180-day tests and became permanent employees in these positions. Dkt. # 87, at 12; Dkt. # 96, at
14.
Pursuant to the collective bargaining agreement that governed plaintiff’s employment, the
normal course of action after plaintiff’s failure of the 180-day test would be to return plaintiff to her

2

Plaintiff asserts that she underwent a colonoscopy on December 3, 2013 and was still
experiencing the effects of sedation when she arrived at work on the day of the 180-day test.
Dkt. # 96, at 9. Plaintiff asserts the she notified her supervisors that she did not want to take
the 180-day test because she was still groggy, but was informed that she could retake the test
if she failed. Id. But plaintiff acknowledges that she was alert enough to drive her car to
work the day she took the exam and that she was alert during the exam. Dkt. #106-1, at 5.
4

previous building cleaner position. Dkt. # 87, at 12; Dkt. # 96, at 14. However, because defendant
outsourced plaintiff’s previous position, it did not have a position to which plaintiff could return.
Dkt. # 87, at 12; Dkt. # 96, at 14. Defendant ultimately identified another position that plaintiff
would be capable of performing. Dkt. # 87, at 12-13; Dkt. # 96, at 14-15. On January 16, 2014,
plaintiff met with two union representatives, Dave Corbitt and Gary Yingst, who explained that
defendant had found another position for plaintiff. Dkt. # 87, at 13; Dkt. # 96, at 15. Corbitt and
Yingst presented plaintiff with a settlement agreement to be signed before plaintiff assumed the new
position. Dkt. # 87, at 13; Dkt. # 96, at 15. Under the terms of the settlement agreement, defendant
agreed to place plaintiff in another maintenance support position in its Tulsa plant in exchange for
a release of all claims by plaintiff against defendant. Dkt. # 2, at 34. The settlement agreement
stated that the parties “agree that the following settlement constitutes complete and full settlement
on behalf of all parties,” noted that the agreement did “not constitute a waiver of any contractual
rights held by [plaintiff] under the terms of the [collective bargaining agreement],” and concluded
by stating that “this [a]greement is complete, final and binding settlement of all matters related to
the present dispute concerning [plaintiff’s] performance record and [her] future employment status
with defendant.” Id. at 34-35.
Corbitt and Yingst read the settlement agreement aloud to plaintiff, and allowed her to ask
any questions about the terms of the settlement. Dkt. # 87, at 13; Dkt. # 96, at 15-16. Neither
Corbitt nor Yingst required that plaintiff sign the settlement agreement during the meeting nor did
they give plaintiff any deadline for signing the agreement. Dkt. # 87, at 13-14; Dkt. # 96, at 16.
Plaintiff understood that she could have taken the agreement home for further consideration and
could have consulted an attorney about the contents of the agreement. Dkt. # 87, at 14; Dkt. # 96,

5

at 16. Plaintiff chose to sign the settlement agreement at the conclusion of the meeting with Corbitt
and Yingst. Dkt. # 87, at 14; Dkt. # 96, at 12. Plaintiff resumed work with defendant in the new
maintenance support position on January 21, 2014. Dkt. # 86, at 14; Dkt. # 96, at 12.
Plaintiff subsequently filed this action, alleging claims of race and gender discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII); racial
discrimination and retaliation under 42 U.S.C. § 1981; race and gender discrimination under the
Oklahoma Anti-Discrimination Act, OKLA. STAT. tit. 25, § 1101 et seq. (OADA); and failure to
accommodate and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 1201 et seq.
(ADA). Dkt. # 2. Defendant sought dismissal of plaintiff’s complaint, arguing that the agreement
plaintiff signed before returning to work was a valid and enforceable settlement agreement that
released defendant from liability for the claims plaintiff asserts. Dkt. # 13. The Court entered an
opinion and order (Dkt. # 29) finding that, at the 12(b)(6) dismissal stage, it did not have enough
factual information to determine whether the settlement agreement was a valid and enforceable
waiver of plaintiff’s claims. Defendant now moves for summary judgment, renewing its argument
that the agreement plaintiff signed releases defendant from all the claims plaintiff now asserts,
arguing that plaintiff fails to make a prima facie case of sex, race, or disability discrimination or
retaliation, and arguing that plaintiff fails to demonstrate pretext as to any of her claims. Dkt. # 87,
at 7.
II.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

6

242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed ‘to secure the just, speedy, and inexpensive determination of every action.’” Id. at 327
(quoting FED. R. CIV. P. 1).
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the [trier of fact] could reasonably
find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court is “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that the party must prevail as a matter of law.” Id. at 251-52. In its review, the Court
construes the record in the light most favorable to the party opposing summary judgment. Garratt
v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

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III.
A.
Defendant first argues that it is entitled to summary judgment because plaintiff signed a
settlement agreement that encompasses all the claims plaintiff attempts to assert in this suit. Dkt.
# 87, at 17. Plaintiff responds that the agreement is invalid and unenforceable because it lacks
consideration and was not a knowing and voluntary waiver of plaintiff’s claims . Dkt. # 96, at 1718. The Court previously considered this argument in defendant’s motion to dismiss, concluding
that, although the settlement agreement encompassed all of plaintiff’s claims, at the 12(b)(6)
dismissal stage, the Court could not conclusively determine whether the settlement agreement was
a knowing and voluntary waiver. Dkt. # 29, at 9-12. The Court now considers the issue again at the
summary judgment stage, when discovery has been conducted, and the Court has a more extensive
factual basis upon which to evaluate defendant’s argument.
“A settlement document is a contract and is construed using ordinary principles of contract
interpretation.” Anthony v. United States, 987 F.2d 670, 673 (10th Cir. 1993); see also Corbett v.
Combined Commc’ns Corp. of Okla., Inc., 654 P.2d 616, 617 (Okla. 1982) (“A release is a
contract.”). Under Oklahoma law, “[t]he language of a contract is to govern its interpretation, if the
language is clear and explicit, and does not involve an absurdity.” 15 OKLA. STAT. tit. 15, § 154.
“A contract must be considered as a whole so as to give effect to all its provisions without narrowly
concentrating upon some clause or language taken out of context.” Lewis v. Sac & Fox Tribe of
Okla. Housing Auth., 896 P.2d 503, 514 (Okla. 1994). “The terms of the parties’ contract, if
unambiguous, clear, and consistent, are accepted in their plain and ordinary sense, and the contract
will be enforced to carry out the intention of the parties as it existed at the time the contract was

8

negotiated.” Dodson v. St. Paul Ins. Co., 812 P.2d 372, 376 (Okla. 1991); see also OKLA. STAT. tit.
15, § 160. “When a contract is reduced to writing, the intention of the parties is to be ascertained
from the writing alone, if possible . . . .” OKLA. STAT. tit. 15, § 155. “Interpretation of contracts, and
whether they are ambiguous, are matters of law for the court to determine.” Livesay v. Shoreline,
L.L.C., 31 P.3d 1067, 1070 (Okla. Civ. App. 2001) (citing Osprey L.L.C. v. Kelly Moore Paint Co.,
984 P.2d 194 (Okla. 1999)).
In considering defendant’s argument in its motion to dismiss, the Court concluded that the
settlement agreement included all of plaintiff’s claims. Dkt. # 29, at 8 (“The agreement is simple
and unambiguous, and it includes all of plaintiff’s claims.”). Thus, the only question before the
Court regarding the settlement agreement is whether it constitutes a knowing and voluntary waiver
of plaintiff’s claims. The Tenth Circuit has held that “[b]oth Title VII and section 1981 employment
discrimination claims may be waived by agreement, but the waiver of such claims must be knowing
and voluntary.” Torrez v. Pub. Serv. Co. of N.M., Inc., 908 F.2d 687, 689 (10th Cir. 1990) (citations
omitted). Such waivers “are not lightly to be inferred.” Id. (citing Watkins v. Scott Paper Co., 530
F.2d 1159, 1172 (5th Cir. 1976)). To help courts determine whether a waiver is knowing and
voluntary, the Tenth Circuit has provided a list of factors to be considered under the totality of the
circumstances:
“(1) the clarity and specificity of the release language; (2) the plaintiff’s education
and business experience; (3) the amount of time plaintiff had for deliberation about
the release before signing it; (4) whether [p]laintiff knew or should have known his
rights upon execution of the release; (5) whether plaintiff was encouraged to seek,
or in fact received benefit of counsel; (6) whether there was an opportunity for
negotiation of the terms of the Agreement; and (7) whether the consideration given
in exchange for the waiver and accepted by the employee exceeds the benefits to
which the employee was already entitled by contract or law.”

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Id. at 689-90 (quoting Cirille v. Arco Chem. Co., 862 F.2d 448, 451 (3d Cir. 1988). Although the
Tenth Circuit has not addressed the issue, this Court has previously extended Torrez to include ADA
claims. Holmes v. Sw. Reg’l Med. Ctr., Inc., No. 12-CV-225-CVE-PJC, 2012 WL 4473085, at *3
(N.D. Okla. Sept. 26, 2012). No court appears to have addressed waiver in the context of an OADA
claim, but under Oklahoma law a waiver “must be voluntary, intentional, and knowing.” Hall v.
Duncan Sav. & Loan Assoc., 820 P.2d 1360, 1362 (Okla. Civ. App. 1991) (citing Faulkenberry v.
Kan. City S. Ry. Co., 602 P.2d 203 (Okla. 1979)). As Oklahoma courts have not outlined any
specific method of analyzing waiver under this standard, the Court will use the Torrez factors to
determine whether summary judgment is appropriate regarding plaintiff’s OADA claim.
As the Court concluded in its opinion and order regarding defendant’s motion to dismiss,
“the agreement is clear and unambiguous, so the first Torrez factor, concerning the clarity of the
language in the waiver favors defendant’s argument.” Dkt. # 29, at 10. With respect to the second
Torrez factor, plaintiff has a high-school education and more than twenty years of work experience
in various positions with defendant. Dkt. # 87-1, at 3, 7-9. “Usually, when courts discuss whether
an individual has ‘business experience,’ they refer to the length of time a person has spent in a
particular industry and weather, based on his or her employment duties, that person understood the
scope of the bargain.” Foster v. Mountain Coal Co., L.L.C., 61 F.Supp.3d 993, 1004 (D. Colo.
2014) (collecting cases). Here, plaintiff has nearly twenty years of experience in this industry, but
her employment duties involve routine clean up and maintenance. Plaintiff’s high school education,
coupled with her janitorial experience, do not demonstrate that plaintiff’s education and business
experience render her a sophisticated individual who would easily understand the scope of the

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bargain. This factor counsels against defendant’s argument that the waiver was knowing and
voluntary.
Regarding the third Torrez factor, the amount of time plaintiff had to deliberate before
signing the agreement, plaintiff signed the settlement agreement on the same day she received it.
Dkt. # 87, at 13-14; Dkt. # 96, at 12. Although defendant did not give plaintiff any deadline,
plaintiff signed the agreement before the conclusion of the meeting in which she was first presented
with the settlement agreement. Dkt. # 87, at 13-14; Dkt. # 96, at 12. The same-day signing of the
settlement agreement counsels against the knowing and voluntary nature of plaintiff’s acceptance
of the agreement, even if no deadline was imposed. See, e.g., Loden v. Blue Cross and Blue Shield
of Okla., No. 11-CV-0673-CVE-TLW, 2013 WL 5207238, at *4 (N.D. Okla. Sept. 13, 2013)
(finding 45 days to review agreement sufficient period for deliberation); Nikkel v. Wakefield &
Assocs., Inc., No. 10-cv-02411-PAB-CBS, 2012 WL 5571058, at * 7 (D. Colo. Nov. 15, 2012) (19
days was sufficient amount of time to review release); Ellison v. Lovelace Health Sys., No. Civ. 99359 LFG/RLP, 2000 WL 33126910, at *7 (D.N.M. July 12, 2000) (employee given 21 days to
consider release); Anderson v. Lifeco Servs. Corp, 881 F.Supp. 1500, 1504 (D. Colo. 1995) (18 days
was a reasonable period of time to review release).
Regarding whether plaintiff knew that the agreement would have waived all of her claims,
the Court concluded in its opinion and order regarding defendant’s motion to dismiss that “plaintiff
would have known that by signing the agreement she would waive her ability to bring claims related
to her termination,” thus satisfying the fourth Torrez factor. See Dkt. # 29, at 10. With respect to
the fifth Torrez factor, whether plaintiff had the opportunity to consult an attorney, plaintiff
acknowledges that she knew she could consult an attorney before signing the agreement, but elected

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not to do so. Dkt. # 87, at 14; Dkt. # 96, at 16. And, plaintiff had the benefit of union representation
throughout the entire process. This factor slightly favors defendant’s argument because plaintiff was
aware that she could consult an attorney. See Torrez, 908 F.2d at 690 (explaining that factor
weighed against knowing and voluntary waiver when employee neither consulted with an attorney
nor received encouragement to consult with attorney prior to signing release). However, because
plaintiff did not actually consult an attorney before signing the agreement, this factor does not weigh
in favor of defendant’s argument with the same force as if plaintiff had actually consulted an
attorney.
Regarding the sixth Torrez factor, whether plaintiff had the ability to negotiate regarding the
terms of the settlement, the record demonstrates that plaintiff was not in a position to negotiate the
terms and was presented with a take-it-or-leave it scenario.

Although plaintiff had union

representation throughout the process, she was not in a position to negotiate the essential aspects of
the agreement--that, in exchange for placement in a new position, plaintiff would waive her right
to all claims against defendant related to her termination. While plaintiff may have been able to
negotiate some of the more inconsequential aspects of the deal, the record demonstrates that
plaintiff was faced with a scenario in which she was forced to choose between signing the release
or continued unemployment, a so-called Hobson’s choice.3 In such situations, a party’s choice of
the only remaining option cannot be said to be a voluntary and knowing choice. Id. As such, this
factor weighs against defendant’s argument.

3

A Hobson’s choice is a situation in which one of the two presented options is obviously
unacceptable, and a party has no real choice in the matter. See Torrez, 908 F.2d at 690;
Coventry v. U.S. Steel Corp., 856 F.2d 514, 524 (3d Cir. 1988).
12

Finally, the seventh Torrez factor, whether plaintiff received consideration in exchange for
her waiver of all claims against defendant, favors defendant’s argument that the waiver was knowing
and voluntary.4 In exchange for the waiver of all claims against defendant, plaintiff received a new
position with defendant. This was not a position to which she was entitled before her termination
because, pursuant to the terms of the collective bargaining agreement, plaintiff would have been laid
off after failing the 180-day test because her original position was no longer available.

Thus,

placement in another position is valid consideration in exchange for her waiver of claims against
defendant. This factor therefore favors defendant’s argument that plaintiff’s wavier was knowing
and voluntary.
The Court also considers plaintiff’s argument, although not among the Torrez factors, that
plaintiff signed the agreement out of economic necessity because she had been out of work for six
weeks prior to the agreement. Some courts have found that economic duress can be considered as
a factor in determining whether a party knowingly and voluntarily signed a release. Rutledge v. Int’l
Bus. Mach. Corp., 1992 WL 189105, at *3 (10th Cir. Aug. 6, 1992)5; Bittner v. Blackhawk Brewery
& Casino LLC, No. 03-CV-02274-MSK-PAC, 2005 WL 1924499, at *3 (D. Colo. Aug. 9, 2005).
However, “economic pressure alone is insufficient to establish a claim of duress that would void an
otherwise valid release.” Nichols v. Dep’t of Health, State of Colo., 1991 WL 268838, at *5 (10th
Cir. Dec. 11, 1991). Though not dispositive, this consideration weighs against defendant’s argument

4

Plaintiff’s response appears to assert an independent argument that the settlement agreement
lacked consideration. However, because the Torrez factors address consideration, the Court
evaluates this argument as part of its Torrez-factor analysis.

5

This and other unpublished opinions are not precedential, but may be cited for their
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
13

because plaintiff had an economic motive in signing the settlement agreement--returning to work
and receiving an income after nearly six weeks of unemployment.
Considering the Torrez factors and the totality of the circumstances, and viewing all facts
in the light most favorable to plaintiff, the Court concludes that the settlement agreement did not
constitute a knowing and voluntary waiver of all of plaintiff’s claims against defendant resulting
from her termination. The Torrez factors are split, and the Court gives plaintiff the benefit of the
doubt at the summary judgment stage that the settlement agreement was not an enforceable waiver
of all claims against defendant. As such, defendant should not be granted summary judgment on
this basis.
B.
Defendant next asserts that it is entitled to summary judgment on plaintiff’s discrimination
claims, arguing that plaintiff fails to establish a prima facie showing or demonstrate pretext as to any
of her claims. Dkt. # 87, at 7-8. Plaintiff responds that genuine factual disputes remain regarding
whether plaintiff can establish a prima facie case or show pretext, precluding summary judgment.
Dkt. # 96, at 27-30. Plaintiff asserts claims of discrimination based on race, sex, and disability under
Title VII, § 1981, the ADA, and the OADA. As plaintiff presents no direct evidence of
discrimination under any theory, all of plaintiff’s claims are subject to the McDonnell Douglas
burden-shifting framework. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th
Cir. 2000) (Title VII and § 1981); McCully v. Am. Airlines, Inc., 695 F.Supp.2d 1225, 1246 (N.D.
Okla. 2010) (ADA and OADA).
Under the McDonnell Douglas framework, the plaintiff must carry the initial burden
under the statute of establishing a prima facie case of . . . discrimination. Once the
plaintiff has established a prima facie case, [t]he burden then must shift to the
employer to articulate some legitimate, nondiscriminatory reason for its employment
14

action. If the defendant makes this showing, the plaintiff must then show that the
defendant’s justification is pretextual.
Kendrick, 220 F.3d at 1226 (alteration in original) (internal quotation marks and citations omitted).
i.
Plaintiff asserts claims of sex discrimination under both Title VII and the OADA. Dkt. # 2,
at 14, 19. Defendant argues that plaintiff fails to make a prima facie case of sex discrimination,
asserting that plaintiff was not qualified for the position and the circumstances do not demonstrate
that defendant terminated plaintiff based upon her sex. Dkt. # 87, at 23, 26-27. Defendant also
asserts that plaintiff cannot show that defendant’s proffered reason for plaintiff’s termination was
pretextual. Id. at 29. Plaintiff’s response is silent as to defendant’s arguments about plaintiff’s sex
discrimination claim.6 See Dkt. # 96.
To establish a prima facie case of sex discrimination, a plaintiff must show that: (1) she is
a member of a protected class, (2) she suffered an adverse employment action; (3) she was otherwise
qualified for the position in question; and (4) she was treated less favorably than others not in the
protected class. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009) (Title VII);
McCully, 695 F.Supp.2d at 1246 (“The Tenth Circuit has determined that a plaintiff’s OADA claim
fails if her federal discrimination claims fail.”). At the prima facie stage, a plaintiff satisfies her
burden of showing she is qualified by presenting some credible evidence that she possesses the

6

In its reply to plaintiff’s response, defendant argues that plaintiff has abandoned her sex
discrimination claims by failing to address defendant’s arguments for summary judgment
in her response. Dkt. # 106, at 10. Although plaintiff does not respond to defendant’s
arguments about her sex discrimination claims, plaintiff does not expressly state her intent
to abandon these claims. As such, the Court considers the merits of defendant’s argument.
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objective qualifications necessary to perform the job at issue. E.E.O.C. v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1193 (10th Cir. 2000).
Plaintiff, a female, satisfies the first element of a prima facie case. She similarly satisfies the
second element, identifying her termination from a hazardous waste maintenance position as an
adverse employment action. However, plaintiff fails to show that she was otherwise qualified for
the position in question. The record is replete with evidence that plaintiff was not qualified for her
position, including the essential job duty of looking up chemicals in an online database and reading
and understanding information about safety and remediation techniques, plaintiff’s acknowledgment
that she cannot read and understand long sentences, and plaintiff’s inability to correctly identify a
chemical and its remediation technique during the 180-day test. Dkt. # 87, at 10-11; Dkt. # 87-1,
at 6; Dkt. # 87-6, at 2; Dkt. # 96, at 12-14. Plaintiff presents no credible evidence that she possess
the objective qualifications necessary to perform the hazardous maintenance job.
And plaintiff also fails to show that she was treated less favorably than others co-workers
who were not members of a protected class. Of six employees who sought to transaction into the
hazardous waste maintenance position, plaintiff was the only employee who did not pass the 180day test required for permanent placement in the position. Of the five other employees, two were
women and three were men. Plaintiff’s allegations that she was terminated based on sex is undercut
by the number of women who were ultimately placed permanently in the same position.
Plaintiff’s allegations that she was discriminated against due to her sex are not sustained by
the evidence in the record, particularly given that plaintiff could not perform essential functions of
the position and that defendant placed two women in the same position on a permanent basis.
Plaintiff thus fails to establish a prima facie case of sex discrimination. And, even if plaintiff could

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establish a prima facie case, she fails to demonstrate that defendant’s stated non-discriminatory
reason for terminating plaintiff--plaintiff’s failure of the 180-day test and the unavailability of
plaintiff’s previous position--is a pretext. “A showing of pretext does not require a plaintiff to offer
any direct evidence of actual discrimination.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113
(10th Cir. 2007). Rather, “[a]n employee may show pretext based on ‘weakness, implausibilities,
inconsistencies, incoherencies, or contradictions’ in the employer’s claimed legitimate, nondiscriminatory reason such that a rational trier of fact could find the reason unworthy of belief.” Id.
(quoting Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir. 1997)). Plaintiff has identified no such
reason that would lead a trier of fact to conclude that defendant’s proffered reason for plaintiff’s
termination was a pretext for sex discrimination. As stated above, no evidence in the record
suggests that defendant terminated plaintiff because she was a woman; thus plaintiff cannot show
that defendant’s proffered reason for plaintiff’s termination was a guise for an adverse employment
action motivated by plaintiff’s sex.
Plaintiff fails to establish a prima facie case of sex discrimination or provide any evidence
that defendant’s proffered reason for plaintiff’s termination was a pretext. Defendant should thus
be granted summary judgment on plaintiff’s sex discrimination claim.
ii.
Plaintiff asserts claims of race discrimination against defendant under Title VII, § 1981, and
the OADA. Dkt. # 2, at 14,16-17, 19. Plaintiff asserts that defendant discriminated against her
based on race by treating her differently and much less favorably than other co-workers who were
not members of a protected class. Id. at 15, 17, 20. Defendant argues that plaintiff has failed to
establish a prima facie case of race discrimination, asserting that plaintiff fails to identify any

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disparate treatment based on race and that plaintiff provides no evidence suggesting that defendant’s
reason for terminating plaintiff was pretextual. Dkt. # 87, at 26, 29. Plaintiff’s response is silent
as to defendant’s arguments that it is entitled to summary judgment on plaintiff’s race discrimination
claims.7 See Dkt. # 96.
To establish a prima facie case of race discrimination based on disparate treatment, a plaintiff
must demonstrate that: (1) she is a member of a protected class; (2) she suffered an adverse
employment action; and (3) disparate treatment among similarly situated employees occurred. Orr
v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005) (Title VII); Drake v. City of Fort
Collins, 927 F.3d 1156, 1162 (10th Cir. 1991) (§ 1981 claims evaluated under same standard ast
Title VII); McCully, 695 F.Supp.2d at 1246 (OADA claims evaluated under same standard as Title
VII).
Plaintiff satisfies the first element of a prima facie case as an African-American. And she
satisfies the second element because her termination qualifies as an adverse employment action. But
plaintiff fails to satisfy the third element--that she was treated differently than similarly situated
employees. The record contains no evidence that supports the conclusion that plaintiff was treated
differently than similarly situated employees. Plaintiff was one of six employees who served as a
building cleaner for defendant and attempted to transition to a hazardous waste maintenance position
when defendant outsourced the building cleaner positions. Of the five other employees, four were

7

Plaintiff’s response to defendant’s motion for summary judgment is also silent regarding
defendant’s arguments for summary judgment on plaintiff’s race discrimination claims. Dkt.
# 96. Defendant asserts in its reply that plaintiff also abandoned her race discrimination
claims by not addressing them in her response to defendant’s motion for summary judgment.
Dkt. # 106, at 10. As stated with respect to plaintiff’s sex discrimination claims, plaintiff did
not expressly abandon her claims and the Court considers the merits.
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African-American and one was Caucasian. The evidence demonstrates that all employees received
the same training for the 180-day test. Plaintiff was the only employee who did not successfully
pass the test and secure permanent employment as a hazardous waste maintenance person.
The record simply does not support plaintiff’s allegation that she suffered disparate treatment
because of her race and that her termination was based upon her membership in a protected class.
Indeed, the only evidence in the record of plaintiff’s race ever being mentioned in the workplace is
her own complaint to a supervisor that she was not being prepared adequately for the 180-day test
because she was a black female. The record instead supports the conclusion that plaintiff was
terminated because she failed the 180-day test and she could not be returned to her previous position
because it no longer existed. As such, plaintiff has failed to state a prima facie case of race
discrimination. Plaintiff also fails to demonstrate that defendant’s proffered reason for her
discharge--that she failed the 180-day test and her old position had been eliminated--was a pretext.
As discussed with respect to plaintiff’s sex discrimination claim, the record reveals no evidence
indicating that defendant’s non-discriminatory reason for discharge is suspect or attempts to cover
a discriminatory motive. Summary judgment should thus be granted to defendant on plaintiff’s race
discrimination claims.
iii.
Plaintiff also asserts a claim of disability discrimination under the ADA for defendant’s
failure to accommodate her disability when she took the 180-day test. Dkt. # 2, at 23-25. Defendant
asserts that plaintiff has failed to establish a prima facie case of disability discrimination and asserts
that plaintiff also fails to show pretext. Dkt. # 87, at 22, 29. Plaintiff responds that genuine disputes

19

of material fact exist regarding her disability discrimination claim, rendering summary judgment
inappropriate. Dkt. # 96, at 27.
“Under the ADA, discrimination is defined to include ‘not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless such covered entity can demonstrate that
the accommodation would impose an undue hardship on the operation of the business of such
covered entity.’” Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (10th Cir. 2001) (quoting
42 U.S.C. § 12112(b)(5)(A)). “‘In order to establish a prima facie case of failure to accommodate
in accordance with the ADA, a plaintiff must show that (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, 830 n.2 (10th Cir.
2011) (quoting Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 747-48 (7th Cir. 2011)).
Plaintiff asserts that she should have received additional training but no evidence suggests
that plaintiff made such a request based on her disability, instead complaining only that she was not
being adequately prepared because she was a black female. See E.E.O.C. v. C.R. England, Inc., 644
F.3d 1028, 1049 (10th Cir. 2011) (explaining that employee must made an adequate request for
accommodation to put employer on notice and that the request for accommodation should be
sufficiently direct and specific). Nothing in the record can be construed as a direct and specific
request for additional training based on plaintiff’s learning disability. To the extent that plaintiff
argues that defendant failed to accommodate her based on her claims that she felt groggy due to a
colonoscopy the day before the test, a colonoscopy does not qualify as a disability for a number of
reasons, including that the ADA does not encompass temporary impairments. See Toyota Motor

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Mfg. v. Williams, 534 U.S. 184, 198 (2002). The Court thus considers only plaintiff’s request to
take the exam orally due to her alleged dyslexia as the request for accommodation.
First, plaintiff asserts that she suffers from dyslexia, which she argues qualifies as an ADAcovered disability. The ADA defines a disability as “a physical or mental impairment that
substantially limits one or major life activities of such individual; [] a record of such an impairment;
or [] being regarded as having such an impairment.” 42 U.S.C. § 12102(1). To establish that she
is disabled under § 12102(1)(A), a plaintiff has the burden to show that “(1) [s]he has an impairment
that (2) substantially limits (3) a major life activity.” Smothers v. Solvay Chems., Inc., 740 F.3d
530, 545 (10th Cir. 2014). The first and third elements are matters of law for the Court to decide,
but the second requirement is a question of fact that must be submitted to a jury if there is a genuine
dispute. Id.; Doebele v. Sprint/Utd. Mgmt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003).
Plaintiff asserts that she suffers from dyslexia, and has suffered from this impairment for
over thirty years. Dkt. # 96, at 10. Plaintiff identifies a note from her doctor stating that she suffers
from dyslexia and requires oral exams.8 Dkt. # 102, at 133. She also attests that she cannot read
long sentences, has trouble reading restaurant menus, and sometimes cannot read road signs. Id. at
41-42. The evidence regarding plaintiff’s dyslexia and its resulting limitations sufficiently establish
that she suffers from an impairment that substantially limits a major life activity, i.e. her dyslexia
substantially limits her ability to read. See Cunningham v. Univ. of N.M. Bd. of Regents, 531 F.

8

Defendant challenges the probative value of this note, asserting that plaintiff has presented
no evidence of her dyslexia from a doctor qualified to make such a diagnosis. Dkt. # 87, at
23. But the Court considers this as evidence of plaintiff’s disability at the summary
judgment stage, viewing all facts in the light most favorable to plaintiff.
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App’x 909, 919 n.12 (“Learning and reading are explicitly listed as ‘major life activities’ under 42
U.S.C. § 12102(2)(A).”). Plaintiff thus demonstrates that she has a disability.
A qualified individual is “an individual [who], with or without reasonable accommodation,
can perform the essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8). The evidence in the record demonstrates that plaintiff is not a
qualified individual because she cannot perform the essential functions of the employment position,
with or without an accommodation. Plaintiff’s only requested accommodation for her disability was
the oral administration of tests, but plaintiff also acknowledges that an essential aspect of the
hazardous waste maintenance position is the ability to read and understand contents in an online
database regarding specific chemicals. Dkt. # 87, at 10; Dkt. # 87-1, at 6; Dkt. # 96, at 12. Even
given plaintiff’s desired and requested accommodation, plaintiff would not be able to carry out the
essential functions of the position because she would not be able to sufficiently utilize the online
database on a day-to-day basis. Plaintiff is not a qualified individual with a disability, thus failing
to establish a prima facie case of failure to accommodate. The Court also notes, with respect to the
second two elements, that although some evidence in the record indicates that defendant was aware
of plaintiff’s disability based on her conversations with her supervisor and notes in her personnel
file, she cannot satisfy the third element because defendant provided her the accommodation which
she requested--oral administration of the 180-day test.
Finally, even if plaintiff can establish a prima face case of failure to accommodate, she fails
to demonstrate pretext. Defendant accommodated plaintiff in the manner she requested, but even
in the absence of an accommodation, no evidence supports the conclusion that defendant offered

22

false reasoning for its actions, intending only to cover a discriminatory motive. As such, defendant
should be granted summary judgment of plaintiff’s disability discrimination claim.
C.
Defendant finally asserts that it is entitled to summary judgment on plaintiff’s retaliation
claims, arguing that plaintiff fails to make a prima facie case of retaliation because no evidence
demonstrates that plaintiff engaged in a protected activity nor that a causal connection exists
between any alleged activity and plaintiff’s termination. Dkt. # 87, at 8. Plaintiff responds that she
has established a prima facie case of retaliation and asserts that she has demonstrated the defendant’s
proffered reason for her termination was a pretext. Dkt. # 96, at 27-30.
Plaintiff asserts retaliation claims under § 1981 and the ADA. To make a prima facie case
of retaliation, a plaintiff must show that: (1) she engaged in protected opposition to discrimination;
(2) that a reasonable employee would have found the challenged action materially adverse; and (3)
a causal connection exists between the opposition and the adverse action. Twigg v. Hawker
Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011) (§ 1981 retaliation); Selenke, 248 F.3d at 1264
(ADA retaliation). An employee may establish causation by showing that the adverse employment
action occurred soon after the protected activity. Annett v. Univ. of Kan., 371 F.3d 1233, 1239-40
(10th Cir. 2004); Burrus v. Utd. Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982). “Unless
there is very close temporal proximity between the protected activity and the retaliatory conduct,
the plaintiff must offer additional evidence to establish causation.” O’Neal v. Ferguson Constr. Co.,
237 F.3d 1248, 1253 (10th Cir. 2001).
First, the Court concludes above that plaintiff fails to establish a prima facie case of
discrimination, whether based on sex, race, or disability. But, for the purposes of plaintiff’s

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retaliation claims, the question is not whether she was subjected to discrimination, but whether
plaintiff had a reasonable good-faith belief she was. Hertz v. Luzenac Am., Inc., 370 F.3d 1014,
1015-16 (10th Cir. 2004). An informal complaint to a superior about potential discrimination
constitutes protected activity or opposition. See Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th
Cir. 2000). Although the Court has its doubts about whether plaintiff had a reasonable, good faith
belief that she was being discriminated against based on her race and gender, the Court assumes for
the purposes of this analysis that she did have such a good faith belief. As such, her complaint to
her supervisor that she was not being adequately prepared for the 180-day test because she was a
black female sufficiently satisfies the first element of her § 1981 retaliation claim. The Court notes
that plaintiff makes no allegations that she ever complained to any supervisors that she was being
treated differently due to her alleged disability or otherwise demonstrates the she engaged in any
protected opposition to discrimination based on her disability. Plaintiff thus cannot satisfy the first
element of a prima facie case of retaliation under the ADA.
With respect to her § 1981 retaliation claim, plaintiff also satisfies the second element
because a reasonable employee would find the challenged action--termination--materially adverse.
However, plaintiff fails to establish causation between her complaints about allegedly discriminatory
treatment and her subsequent termination. Plaintiff complained to Gilmore, her supervisor, that she
was not being adequately prepared for the 180-day test because she was a black woman. Plaintiff
subsequently failed the 180-day test and was terminated. Although plaintiff asserts that these two
events are causally related, the record does not support such a conclusion. First, plaintiff could not
recall precisely how long after her complaint about inadequate preparation that she failed the 180day test; however, plaintiff made her complaints during the training period leading up to the test.

24

Dkt. # 87, at 15. Although there is some temporal relationship between the two events, there is no
additional evidence supporting a causal connection, including any allegation that Ray Richardson,
who administered plaintiff’s exam and determined that she failed, was aware that plaintiff had made
complaints about inadequate preparation due to her status as a black female to Richard Gilmore, her
supervisor. The evidence in the record does not support the conclusion that plaintiff’s complaints
about inadequate test preparation based on her race and gender were the proximate cause of
plaintiff’s termination. Plaintiff fails to establish this element and thus fails to make a prima facie
case of retaliation.
And, as the Court has stated in reference to plaintiff’s other claims, even if plaintiff were able
to establish a prima facie case of retaliation under either the ADA or § 1981, she provides no
evidence that demonstrates that defendant’s non-discriminatory explanation for plaintiff’s
termination--that she failed a qualifying test and defendant could not place plaintiff back in her
original position--was a pretext.

The record simply contains no evidence that defendant’s

explanation for plaintiff’s termination was nothing more than a guise intended to cover defendant’s
discriminatory motive. As such, defendant should be granted summary judgment on plaintiff’s
retaliation claims.
IV.
In sum, the Court concludes defendant is not entitled to summary judgment based upon the
settlement agreement, but concludes that summary judgment is appropriate as to each of plaintiff’s
individual claims because plaintiff has failed to establish a prima facie case or demonstrate pretext.
The Court notes that federal anti-discrimination laws are designed to protect individuals from
discrimination in the workplace based on immutable characteristics, but are not designed to provide

25

plaintiffs a vehicle to pursue meritless federal claims based solely on a plaintiff’s membership in a
protected class. The Court evaluates all claims equally, but advises plaintiff that federal antidiscrimination claims should be based in fact and should not be merely an exercise in checking all
the boxes of protected classes to which plaintiff may belong.
IT IS THEREFORE ORDERED that Defendant American Airlines, Inc.’s Motion for
Summary Judgment and Brief in Support (Dkt. # 87) is granted.
IT IS FURTHER ORDERED that defendant’s motion in limine (Dkt. # 90), plaintiff’s
motion in limine (Dkt. # 92), Plaintiff’s Unopposed Motion for Leave to File Second Amended
Deposition and Interrogatory Designations (Dkt. # 118), Defendant’s Unopposed Motion for
Extension of Time (Dkt. # 119), Defendant American Airlines, Inc.’s Objections to Plaintiff’s
Deposition, Interrogatory, and Request for Admission Designations (Dkt. # 122), and Plaintiff Anna
Marie Pittman’s Objections to Defendant American Airlines’ Deposition Designations (Dkt. # 125)
are moot.
DATED this 2nd day of June, 2016.

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