Savage v. Serco
Filing
51
MEMORANDUM DECISION and ORDER granting 30 Motion for Summary Judgment. Signed by Judge Ted Stewart on 5/22/2014. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DUSTIN SAVAGE,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff,
v.
SERCO, INC.,
Case No. 1:12-CV-176 TS
Defendant.
This matter is before the Court on Defendant Serco, Inc.’s Amended Motion for
Summary Judgment. 1 For the reasons discussed more fully below, the Court will grant
Defendant’s Motion.
I. BACKGROUND
Plaintiff Dustin Savage is a veteran who retired from active military service on medical
disability after being diagnosed with melanoma cancer. Plaintiff is certified and otherwise
qualified to work as an air traffic controller (“ATC”). Defendant Serco, Inc. is a Virginia
corporation that contracts to provide service solutions to federal agencies. As a federal
contractor, Defendant provides services for the Federal Aviation Administration (“FAA”). As
part of that contract, Defendant operates sixty-three FAA air traffic control towers. Two of the
towers Defendant operates are located in Utah—one in Ogden, Utah and the other in Provo,
1
Docket No. 30.
1
Utah. This dispute arises from Plaintiff’s termination as an ATC in the Ogden air traffic control
tower.
Plaintiff began employment with Defendant in March 2009. Plaintiff was hired to
replace Steven Pezold, an ATC who left the Ogden tower after being called to active duty with
the National Guard. When Plaintiff was hired by Defendant, Plaintiff’s melanoma was in
remission and he was no longer receiving active cancer treatments. Still, Plaintiff regularly
attended doctor visits as part of a continuing screening process and a post-treatment clinical
study in which he was participating.
The record in this case demonstrates that Defendant was aware, or should have been
aware, of Plaintiff’s prior cancer diagnosis. As part of his initial employment documentation,
Plaintiff was required to provide a Class II Medical Certification that verified his medical fitness
to perform the duties of an ATC. Because Plaintiff had previously undergone cancer
treatments—including chemotherapy—he was required to provide a Special Issuance in order to
perform as an ATC. In addition, Plaintiff discussed his cancer diagnosis with his direct
supervisor during his tenure as an ATC in the Ogden tower.
Mr. Pezold returned from active duty in early 2010 and sought reinstatement at the
Ogden tower under the Uniformed Services Employment and Reemployment Rights Act
(“USERRA”). Defendant was not aware that Mr. Pezold would be seeking reinstatement as it
was Defendant’s understanding that Mr. Pezold had resigned his position when he was called to
active duty. However, after considering the matter with counsel, Defendant determined that it
was obligated to return Mr. Pezold to employment with seniority credit for the time Mr. Pezold
was deployed.
2
The FAA contract under which Defendant operated provided staffing plans that limited
the number of ATCs that could be employed at any one tower. The FAA-approved staffing plan
governing the Ogden control tower specified that it would be staffed with four control towers
and one air traffic manager. Thus, Mr. Pezold’s return resulted in an overstaffing at the Ogden
control tower.
In the past, Defendant dealt with similar events of overstaffing by displacing ATCs in the
order of least seniority. For example, in February 2010, Defendant was required to reduce
staffing numbers in several of its towers as a result of FAA staffing plan changes in its most
recent FAA contract. In a memorandum issued to all employees on February 14, 2010,
Defendant outlined its seniority system and the application of that system to staffing adjustments.
That memorandum states in relevant part,
We always work very hard to keep all of our employees employed, especially
during staffing reductions. If there are no volunteers in a facility to transfer to
another facility then we use seniority with Serco to determine who will be
displaced. When an employee is displaced, we give that employee first right-ofrefusal for any job openings we have at the time. If we are unable to place an
employee in a position immediately, then they are given, in writing, the first rightof-refusal for future opening for one year from the date of the termination of their
employment. 2
In mid-March 2010, Defendant notified Plaintiff that Mr. Pezold would be returning to
the Ogden tower and that Plaintiff would need to either transfer to an available position in
another tower or face termination. Thereafter, Plaintiff protested that he could not transfer out of
Utah because of his ongoing melanoma screenings and other medical appointments. Plaintiff
2
Docket No. 31 Ex. 1, at 30.
3
also provided other reasons for not wanting to leave Utah, including his desire to stay near his
family support network and his wife’s enrollment in a local pharmaceutical college.
Defendant then approached Mr. Pezold and asked if he would be willing to accept a
temporary assignment to Jackson Hole, Wyoming, while they attempted to resolve the
overstaffing at the Ogden tower. Mr. Pezold agreed to accept the temporary assignment and
worked at the Jackson Hole control tower for nearly three months. Defendant paid Mr. Pezold a
per diem to stay in Jackson Hole.
During this same three-month period, Defendant arranged for Nelson Rendon—the ATC
manager for the Ogden tower—to retire early. The hope was that if Mr. Rendon retired early and
an ATC from the Ogden tower was promoted, an additional position would open up at the Ogden
tower and Plaintiff would not be displaced. Defendant sent out a mass email to all of its ATC
employees regarding the open manager position at the Ogden tower. All of the Ogden ATCs,
including Plaintiff, received an email notifying them of the opening. Unfortunately, only one
ATC from the Ogden tower applied for the manager position.
After reviewing applications and interviewing potential applicants for the Ogden tower
manager position, Defendant opted to hire an ATC from a different tower for the position.
Defendant opted not to hire the lone Ogden tower ATC applicant because she had less
experience and was otherwise less qualified than the applicant it selected. Because Defendant
did not promote an ATC from within the Ogden tower, Mr. Rendon’s retirement did not result in
an ATC vacancy at the Ogden tower.
On April 21, 2010, Plaintiff obtained counsel and notified Defendant that he felt he was
entitled under the ADA to remain in Utah because of his disability. Plaintiff also took issue with
4
Defendant’s interpretation of the requirements of USERRA and Defendant’s decision to return
Mr. Pezold to the Ogden tower. Defendant responded to Plaintiff’s letter but did not change its
position or accede to Plaintiff’s demand that he be allowed to continue employment in the Ogden
tower. On June 14, 2010, Defendant notified Plaintiff that his last day of work at the Ogden
tower would be June 25, 2010. In addition, Defendant reiterated its belief that it had to displace
Plaintiff based on its obligation to reemploy Mr. Pezold in the Ogden tower.
Plaintiff’s employment with Defendant was terminated on June 25, 2010. Mr. Pezold
began working in the Ogden control tower the next day. Plaintiff was informed at that time that
for the next year he would have priority consideration for any open tower position for which he
applied. Plaintiff applied for the first open tower position at the Ogden tower and, in late
November 2010, was rehired by Defendant at the Ogden control tower. Plaintiff resigned that
position on December 22, 2010.
II. STANDARD OF REVIEW
Summary judgment is appropriate “if 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.” 3 In
considering whether a genuine dispute of material fact exists, the Court determines whether a
reasonable jury could return a verdict for the nonmoving party in the face of all the evidence
3
Fed. R. Civ. P. 56(a).
5
presented. 4 The Court is required to construe all facts and reasonable inferences in the light most
favorable to the nonmoving party. 5
III. DISCUSSION
A.
EVIDENTIARY DISPUTES
As a preliminary matter, the Court will address Plaintiff’s evidentiary objections. Plaintiff
objects to much of the evidence provided by Defendant on the grounds that it is hearsay.
Plaintiff also argues that the evidence provided is undermined by Defendant’s spoliation of
material evidence.
Federal Rule of Civil Procedure 56(c)(1) instructs that a party may support its factual
assertions by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, . . . admissions,
interrogatory answers, or other materials.” Rule 56(c)(2) allows a party to object to the
consideration of material on summary judgment that “cannot be presented in a form that would
be admissible in evidence.” The Tenth Circuit has clarified that “evidence need not be submitted
‘in a form that would be admissible at trial.’” 6 Rather, “the content or substance of the evidence
must be admissible.” 7
4
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
5
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
6
Argo v. Blue Cross & Blue Shield, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
7
Id. (quoting Thomas v. Int’l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 2005)).
6
Here, Plaintiff argues that much of the evidence relied upon by Defendant is inadmissible
hearsay. “‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at
the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” 8 The evidence at issue does contain out of court statements and, at
the very least, portions of the statements are offered to prove the truth of the matter asserted.
Thus, the evidence does contain, at least in part, hearsay statements.
That being said, the evidence presented “may ultimately be presented at trial in an
admissible form.” 9 For example, the parties may call the individuals whose declarations and
deposition statements have been presented to testify at trial. Such statements would be made in
court and would not qualify as hearsay statements. Because such testimony would be admissible
at trial, the Court rejects Plaintiff’s argument that the evidence provided cannot be considered.
Plaintiff next argues that certain of Defendant’s employees destroyed evidence that was
material to Plaintiff’s claims. Specifically, Plaintiff cites the destruction of (1) notes from phone
calls with Plaintiff regarding his transfer or termination, (2) his 2009 Class II Medical
Certification and Special Issuance, and (3) a “shadow file” on Plaintiff that was maintained by
Plaintiff’s supervisor in the Ogden tower. Based on the destruction of these documents, Plaintiff
asserts that negative evidentiary inferences should be drawn against Defendant under the
spoliation doctrine.
The spoliation doctrine provides that “bad faith destruction of a document relevant to
proof of an issue at trial gives rise to an inference that production of the document would have
8
Fed. R. Evid. 801(c).
9
Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006).
7
been unfavorable to the party responsible for its destruction.” 10 Thus, “[a] finding of bad faith
by the party destroying the evidence is necessary to apply an adverse inference.” 11
Here, there is no evidence that Defendant acted in bad faith by destroying any of the
above-referenced documentation. Defendant has provided evidence that each of these
documents were destroyed in the normal operation of Defendant’s business. For example, the
2009 Class II Medical Certification and Special Issuance were destroyed once Plaintiff’s updated
2010 medical certification and special issuance were received. This was the common practice
with all such medical forms because they contained confidential information. The same is true
of the “shadow file,” which was destroyed after Plaintiff’s termination because it merely
contained duplications of documents maintained by Defendant’s human resource department.
Finally, Defendant provided evidence that the notes taken during telephone conversations were
the type of personal notes that are not preserved in the normal operation of its business.
After reviewing the record in this case, the Court cannot find that Plaintiff acted in bad
faith in destroying the evidence at issue. Therefore, the Court will decline to apply an adverse
inference under the spoliation doctrine.
B.
ADA CLAIMS
Plaintiff’s Complaint brings three claims under the Americans with Disability Act
(“ADA”): (1) discrimination and disparate treatment, (2) failure to accommodate and failure to
meaningfully engage in the interactive process, and (3) retaliation. Defendant moves for
summary judgment on each of Plaintiff’s claims.
10
Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997).
11
Smith v. Salt Lake City Corp., No. 2:05-CV-943 PGC, 2007 WL 582969, at *9 (D.
Utah Feb. 20, 2007).
8
“‘Congress enacted the [ADA] in 1990 to remedy widespread discrimination against’
persons with disabilities.” 12 “The purposes of the Act include, inter alia, ‘provid[ing] a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
disabilities’ and ‘provid[ing] clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities.’” 13
[I]n order to establish a prima facie case of disability discrimination under the
ADA, a plaintiff must demonstrate that he “(1) is a disabled person as defined by
the ADA; (2) is qualified, with or without reasonable accommodation, to perform
the essential functions of the job held or desired; and (3) suffered discrimination
by an employer or prospective employer because of that disability.” 14
“If a plaintiff offers no direct evidence of discrimination, which is often the case, the
court applies the burden-shifting analysis articulated by the Supreme Court in McDonnell
Douglas Corp. v. Green.” 15
The McDonnell-Douglas framework involves three steps: (1) the plaintiff must
establish a prima facie case of discrimination or retaliation; (2) the defendant
employer must offer a legitimate non-discriminatory reason for the adverse
employment action; and (3) the plaintiff must show there is at least a genuine
issue of material fact as to whether the employer’s proffered legitimate reason is
genuine or pretextual. 16
12
Smothers v. Solvay Chems., Inc., 740 F.3d 530, 544 (10th Cir. 2014) (quoting PGA
Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001)).
13
E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037 (10th Cir. 2011) (quoting 42
U.S.C. § 12101(b)(1)–(2)).
14
Id. at 1037–38 (quoting Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080, 1086
(10th Cir. 2008)).
15
Id. at 1038 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)).
16
Smothers, 740 F.3d at 538.
9
“A plaintiff can establish pretext by showing the defendant’s proffered non-discriminatory
explanations for its actions are ‘so incoherent, weak, inconsistent, or contradictory that a rational
factfinder could conclude they are unworthy of belief.” 17
For purposes of this Motion, Defendant admits that Plaintiff is a disabled person as
defined by the ADA and is qualified, with or without reasonable accommodation, to perform the
essential functions of the job he held. Thus, at issue is whether Defendant discriminated against
Plaintiff because of his disability.
1.
DISCRIMINATION AND DISPARATE TREATMENT
Plaintiff cites Davidson v. America Online, Inc. 18 for the proposition that the McDonnellDouglas analysis does not apply to his discrimination claim because he was otherwise qualified
to perform the ATC position he held with Defendant. Plaintiff also argues that, because he is
otherwise qualified to perform the essential functions of the employment position he held with
Defendant, summary judgment is inappropriate on his discrimination claim. These arguments
miss the mark.
In Davidson, the court found the McDonnell-Douglas analysis inapplicable “because the
issue of the employer’s intent ha[d] been admitted and the plaintiff ha[d] direct evidence of
discrimination on the basis of his disability.” 19 As stated above, the McDonnell-Douglas
burden-shifting analysis is only applied when there is no direct evidence of discrimination. Here,
Plaintiff has not provided any direct evidence of discrimination. For this reason, Plaintiff’s
reliance on Davidson is misplaced.
17
C.R. England, 644 F.3d at 1038–39.
18
337 F.3d 1179 (10th Cir. 2003).
19
Id. at 1189.
10
Plaintiff’s discrimination claim is premised on allegations of disparate treatment.
Disparate treatment in the ADA context “means treating a qualified individual with a disability
differently because of the disability.” 20
Under the McDonnell-Douglas framework, the Court begins its “analysis by determining
whether [Plaintiff] has produced enough evidence to allow a reasonable jury to conclude that he
has established a prima facie case of discrimination. This burden is ‘not onerous.’” 21 Plaintiff
“must produce enough evidence for a reasonable jury to conclude that he was fired because of
his disability.” 22
Plaintiff argues that the Court can infer that he was discriminated against because
Defendant was unwilling to accommodate his disability by allowing him to stay in Utah and
because Defendant treated Mr. Pezold differently from him. The Court will address Plaintiff’s
accommodation claim in more detail below. As to Plaintiff’s claim of disparate treatment, no
reasonable jury could find that Defendant’s resolution of Mr. Pezold’s claim of rights under
USERRA supports an inference of discrimination against Plaintiff because of his disability. The
evidence in this case overwhelmingly demonstrates that Plaintiff was terminated not because of
his disability but rather because of his lack of seniority. Plaintiff has not provided evidence from
which a reasonable juror could infer otherwise.
Even if the Court were to accept that Defendant’s recognition of Mr. Pezold’s USERRA
rights supported an inference of discrimination, it would nevertheless finds that Defendant met
20
Id. at 1188 (quotation marks and citation omitted).
21
Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011)
(quoting Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005)).
22
Id. at 1147.
11
its burden of production “to articulate some legitimate, nondiscriminatory reason for firing
[Plaintiff].” 23 It is undisputed that Plaintiff held the least seniority of any ATC stationed at the
Ogden tower. In seeking to relocate Plaintiff or terminate his employment at the Ogden tower,
Defendant acted in conformity with its practice in the past when faced with an overstaffing at an
individual control tower.
Plaintiff, in turn, has not provided evidence establishing “that the legitimate reason[]
offered by the [D]efendant w[as] not its true reason[], but w[as] a pretext for discrimination.” 24
Plaintiff argues that “[t]here is overwhelming evidence indicating that Serco’s decision was not
solely motivated by USERRA,” but provides no citation to evidence in the record showing some
other discriminatory intent. 25 Plaintiff focuses his argument on Defendant’s obligations under
USERRA and asserted shortcomings in the training of Defendant’s supervisors on the
requirements of the ADA. These arguments do not raise questions as to Defendant’s asserted
good faith reliance on the requirements of USERRA. 26 Further, the Court is not persuaded that
Defendant’s employees’ lack of training on or understanding of the requirements of the ADA
manifests disparate treatment between Plaintiff and Mr. Pezold.
In short, Plaintiff has failed to meet his burden to demonstrate a prima facie case of
disparate treatment or to establish that Defendant’s proffered reason for termination was
pretextual. Accordingly, the Court will grant judgment on this claim as a matter of law.
23
Id. at 1149 (quotation marks and citation omitted).
24
Id.
25
Docket No. 38, at 26.
26
See Rydalch v. Sw. Airlines, No. 1:09-CV-178 CW, 2011 WL 3349848, at *6–7 (D.
Utah Aug. 3, 2011).
12
2.
FAILURE TO ACCOMMODATE
“The ADA prohibits a covered employer from discriminating against a qualified
individual on the basis of disability in regard to discharge of employees or other terms,
conditions, and privileges of employment.” 27 “Under ADA § 102(b)(5)(A), an employer can
unlawfully ‘discriminate’ against an employee by failing to ‘mak[e] reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a disability
who is an . . . employee.’” 28
The Act defines “reasonable accommodation” to include:
“(A) making existing facilities used by employees readily accessible to and usable
by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations
for individuals with disabilities.” 29
Plaintiff argues that Defendant violated the reasonable accommodation provision of the
ADA by failing to engage in the requisite interactive process and by ultimately not providing
Plaintiff employment in Utah. Defendant contends that the accommodation sought by Plaintiff
was unreasonable and would cause it an undue hardship.
Plaintiff’s request for an accommodation came, at the earliest, in reaction to a phone call
involving Plaintiff’s supervisors and a human resource representative for Defendant notifying
Plaintiff that Mr. Pezold would be returning to the Ogden control tower. At that time, Plaintiff
was notified that he must accept a reassignment to an open ATC position at another tower or face
27
Dinse v. Carlisle Foodservice Prods., Inc., 541 F. App’x 885, 888 (10th Cir. 2013)
(unpublished) (internal quotations marks, citations, and alterations omitted).
28
C.R. England, 644 F.3d at 1048 (quoting 42 U.S.C. § 12112(b)(5)(A)).
29
Id. (quoting 42 U.S.C. § 12111(9)(A)–(B)).
13
termination of his employment. Plaintiff requested that he not be required to leave the Ogden
tower, citing, at least in part, his ongoing melanoma screenings.
Plaintiff argues that after making this request, Defendant failed to engage in the
interactive process required under the ADA. 30 The record in this case demonstrates, however,
that the parties discussed Plaintiff’s desire to stay in Utah and Defendant took a number of
actions in an attempt to maintain Plaintiff’s employment. For example, Defendant arranged for
Mr. Pezold to take a temporary placement at a different control tower at Defendant’s expense in
order to allow Plaintiff additional time to apply for other ATC positions. Defendant also
arranged for the ATC manager in the Ogden control tower to retire early in an attempt to create a
vacant ATC position in the Ogden control tower. Unfortunately, neither of these undertakings
was successful and eventually Plaintiff’s employment was terminated.
The sine qua non of Plaintiff’s accommodation claim is the question of whether
Plaintiff’s request for accommodation was reasonable. The accommodation Plaintiff sought was
to be allowed to remain in an ATC position in the State of Utah. Defendant’s contract with the
FAA limited the number of ATCs that could be employed at any one control tower. Mr.
Pezold’s return to the Ogden tower resulted in an overstaffing of the Ogden tower. Because
Plaintiff was the ATC with the least seniority in that tower, Mr. Pezold’s return brought about
the elimination of his position. Thus, Plaintiff’s request for accommodation in effect sought a
reassignment to an ATC position within Utah.
As part of the effort to accommodate an employee’s disability, an employer has a duty to
reassign a qualified disabled employee “but only when it is reasonable under the
30
See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999).
14
circumstances.” 31 “Typically, this means employers are only required to reassign employees to
existing vacant positions.” 32 Plaintiff “bears the burden of identifying a specific vacant position
to which he could have reasonably been reassigned.” 33
Here, Plaintiff has identified no such position. Further, Defendant provided evidence
that, at the time Plaintiff was terminated, there were no ATC positions available in Utah.
Plaintiff contends that a vacant position would have been created in the Ogden control tower if
Defendant would have promoted an ATC manager from within the Ogden tower. Plaintiff takes
issue with the selection of an outside ATC to fill the ATC manager position. However, Plaintiff
does not dispute that the candidate selected for the ATC manager position was the most qualified
candidate to apply for the position. Plaintiff also does not dispute that, though they received
notice of the position, all but one of the ATCs in the Ogden control tower declined to apply for
the ATC manager position. Plaintiff also takes issue with the fact that neither he nor Mr. Pezold
were considered for the ATC manager position but, again, it is undisputed that, though they had
notice of the position, neither Plaintiff nor Mr. Pezold applied for the ATC manager position.
Plaintiff cites no authority to support his assertion that Defendant was obligated to
consider Plaintiff, Mr. Pezold, or the remaining Ogden ATCs for a promotion for which they did
not apply. Prior case law from this circuit has defined a vacant position as one that “would be
available to similarly-situated nondisabled employees to apply for and obtain.” 34 The Court is
31
Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 745 (10th Cir. 2013).
32
Id.
33
Id.
34
Duvall v. Georgia-Pacific Consumer Prods., L.P., 607 F.3d 1255, 1263 (10th Cir.
2010).
15
not persuaded that employers are required under the proscriptions of the ADA to “promote an
employee” in order to create an accommodating position. 35
Plaintiff also argues that there is a genuine issue of fact as to whether, in this instance, an
exception to Defendant’s seniority system was a reasonable accommodation. In U.S. Airways,
Inc. v. Barnett, 36 the United States Supreme Court made clear that the reasonable
accommodation requirement of the ADA does not “trump the rules of a seniority system.” 37 The
Court nevertheless held that “[t]he plaintiff . . . remains free to show that special circumstances
warrant a finding that, despite the presence of a seniority system (which the ADA may not trump
in the run of cases), the requested ‘accommodation’ is ‘reasonable’ on the particular facts.” 38
The Court in U.S. Airways also provided guidance as to how a plaintiff might show that
their case contains special circumstances meriting an exception to the seniority system.
The plaintiff might show, for example, that the employer, having retained the
right to change the seniority system unilaterally, exercises that right fairly
frequently, reducing employee expectations that the system will be followed—to
the point where one more departure, needed to accommodate an individual with a
disability, will not likely make a difference. The plaintiff might show that the
system already contains exceptions such that, in the circumstances, one further
exception is unlikely to matter. We do not mean these examples to exhaust the
kinds of showings that a plaintiff might make. But we do mean to say that the
plaintiff must bear the burden of showing special circumstances that make an
exception from the seniority system reasonable in the particular case. And to do
so, the plaintiff must explain why, in the particular case, an exception to the
employer’s seniority policy can constitute a “reasonable accommodation” even
though in the ordinary case it cannot. 39
35
See Koessel, 717 F.3d at 745.
36
535 U.S. 391 (2002).
37
Id. at 403.
38
Id. at 405.
39
Id. at 405–06.
16
Plaintiff argues that Defendant lacked a formal seniority policy and that, in the case of at
least one supervisor, the seniority system was not used in terms of day-to-day operations within
the tower. The evidence in this case demonstrates, however, that when Defendant was faced
with reductions in its staffing levels, that it operated under a well-established seniority
understanding or system. Defendant’s practice in prior events of an overstaffing was to displace
individuals in the order of least seniority. Plaintiff has not provided evidence of a single instance
where Defendant unilaterally altered the seniority system or in any way reduced the expectation
that the least senior ATC would be displaced in the event of an overstaffing. Upon thorough
review of the record, the Court concludes that the circumstances of this case do not merit a
finding that an exception to Defendant’s seniority policy would have constituted a reasonable
accommodation.
In sum, the Court finds that the evidence presented in this case demonstrates that
Defendant engaged with Plaintiff regarding his prior melanoma diagnosis and sought to
accommodate his disability. Further, the Court finds that the accommodation that Plaintiff
sought was unreasonable as a matter of law.
3.
RETALIATION
Section 503 of the ADA prohibits an employer from retaliating against a covered
employee. That section states that “[n]o person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 40
40
42 U.S.C. § 12203(a).
17
“A prima facie case of retaliation under the ADA requires: (1) that an employee 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 adverse action.” 41 Defendant does not dispute that the first
two requirements are met in this case. Rather, Defendant argues that summary judgment is
appropriate on Plaintiff’s retaliation claim because Plaintiff has failed to establish that a causal
connection existed between his request for accommodation and termination. Plaintiff contends
that the temporal proximity of Plaintiff’s complaint and Defendant’s adverse employment
actions permits a presumption of causation.
To establish the third element of a prima facie case of retaliation, Plaintiff must show a
causal connection between his protected activity of requesting an accommodation and
Defendant’s decision to terminate Plaintiff’s employment. “The ‘critical inquiry’ at this prima
facie stage is ‘whether the plaintiff has demonstrated that the employer’s action occurred under
circumstances which give rise to an inference of unlawful discrimination.’” 42 The Tenth Circuit
has “repeatedly recognized temporal proximity between protected conduct and termination as
relevant evidence of a causal connection sufficient to justify an inference of retaliatory
motive.” 43 However, “a plaintiff may rely on temporal proximity alone only if “‘the termination
is very closely connected in time to the protected activity.’” 44
41
E.E.O.C. v. Picture People, Inc., 684 F.3d 981, 988 (10th Cir. 2012) (brackets and
quotation marks omitted).
42
Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006)
(quoting Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002)).
43
Id. (quotation marks and citations omitted).
44
Id. (quoting Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999)).
18
The material adverse action of which Plaintiff complains was the requirement that he
transfer to an available ATC position outside of Utah or face termination. It is undisputed that
Plaintiff declined to transfer out of Utah and, as a result, was terminated. It is also undisputed
that this termination occurred only three months after Plaintiff advised Defendant that he had a
disability that he felt prevented him from leaving the State of Utah. That being said, this timing
does not support Plaintiff’s assertion that he was terminated because he requested an
accommodation under the ADA.
Plaintiff received notice that he would either be transferred or terminated before he
advised Defendant that his disability required him to stay near Ogden, Utah. Thus, notification
of the materially adverse action precipitated Plaintiff’s protected conduct. Because Plaintiff
received notice of the material adverse employment action before engaging in any activity
protected by the ADA, the temporal proximity of the subsequent adverse action does not support
an inference that the protected activity was the cause of the materially adverse action. Further,
the record in this case demonstrates that Plaintiff’s request for accommodation was not the cause
of his termination; rather, Plaintiff’s lack of seniority was the cause of the materially adverse
action. Plaintiff cannot manufacture a retaliation claim by seeking a protected action under the
ADA soon after receiving notice of an adverse employment action.
In light of this timing, the Court finds that Plaintiff has failed to demonstrate that
Defendant’s action occurred under circumstances which give rise to an inference of unlawful
discrimination.
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IV. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Defendant Serco, Inc.’s Amended Motion for Summary Judgment
(Docket No. 30) is GRANTED. The Clerk of Court is instructed to enter judgment in favor of
Defendant and against Plaintiff and to close this case forthwith.
DATED this 22nd day of May, 2014.
BY THE COURT:
TED STEWART
United States District Judge
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