Holly v. Kindred Healthcare Operating

Filing 24

MEMORANDUM DECISION AND ORDER granting 16 Motion for Summary Judgment. Signed by Judge David Nuffer on 9/30/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MICHELE HOLLY,
Plaintiff,
v.
KINDRED HEALTHCARE OPERATING,
INC.,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT
Case No.: 2:12-CV-01198-DN
District Judge David Nuffer

Defendant.
Defendant Kindred Healthcare Operating Inc. 1 (“Defendant”) filed a motion for summary
judgment 2 (“Motion”) requesting dismissal of Plaintiff Michele Holly’s (“Holly”) complaint. 3
Holly alleges that Defendant violated the Americans with Disabilities Act (“ADA”), the Family
and Medical Leave Act (“FMLA”), and the Utah Antidiscrimination Act (“UADA”) when
Defendant terminated Holly’s employment in January of 2012. 4 After a careful review of the
written memoranda submitted by the parties, oral argument is unnecessary since the Motion may
be readily decided on the written submissions. 5

1

Defendant states that it was incorrectly sued under Kindred Healthcare Operating, Inc., and should instead have
been sued under Kindred Nursing Center West, LLC d/b/a Kindred Transitional Care and Rehabilitation-Crosslands.
See Answer to Complaint, docket no. 3, filed January 18, 2013. This distinction is immaterial for purposes of the
present motion.
2

Defendant’s Motion for Summary Judgment and Memorandum in Support [“Motion”], docket no. 16, filed
February 27, 2014.
3

Complaint, docket no. 1, filed December 21, 2012.

4

Id. at 11–13.

5

See DUCivR 7–1(f).
1

UNDISPUTED FACTS
The following facts are taken largely from Defendant’s Motion. 6 These facts are
undisputed based on Holly’s expressed admission of Defendant’s proposed undisputed facts, or,
because Holly has not actually denied fact and has not offered any evidence to dispute
Defendant’s properly supported undisputed facts. 7 Where facts offered by Defendant were
properly disputed in Holly’s response, those disputes have been removed by editing and the
undisputed portions remain. Some minor edits and consolidations have been made to improve
readability without changing meaning.
1.

Defendant is a residential facility that provides both short- and long-term health

care to approximately 119 residents. 8
2.

Holly began working for Defendant as a Certified Nursing Assistant (“CNA”) in

September 1991. 9
3.

In April 2009, John Williams [“Williams”] became Defendant’s Executive

Director. 10
4.

In April 2010, the Admissions Coordinator for Defendant left and Williams

encouraged Holly to apply for the vacant position. Williams believed Holly would fit the job
well. And shortly thereafter, Holly was promoted to the position of Admissions Coordinator. 11

6

Motion at 3–13.

7

See Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly address another party’s assertion of fact as required by
Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).

8

Motion ¶ 1, at 3; Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment at 2,
docket no. 17, filed March 31, 2014 [“Opposition”] (undisputed).

9

Motion ¶ 3, at 3; Opposition at 2 (undisputed).

10

Motion ¶ 5, at 3; Opposition at 2 (undisputed).

11

Motion ¶ 6, at 3; Opposition at 2 (undisputed).
2

5.

At her deposition, Holly claimed that her disability is hyperoxaluria. This

condition results in the body producing kidney stones. 12
6.

Holly returned to work [from her FMLA leave] on January 16, 2012 with no

restrictions. 13
7.

Holly testified that when she returned to work she was physically able to do her

8.

Before Holly returned to work, she mentioned to Julie Anderson [“Anderson”],

job. 14

during a telephone conversation, that she kept duplicate admission files in her office (the
admissions office), and Anderson responded that Holly should not keep duplicate files in the
admissions office. 15
9.

Anderson never instructed Holly to discard or shred original files from the

admissions office. 16
10.

On January 18, 2012, two days after Holly returned to work, she took numerous

admissions files and put them in shredder bins. 17
11.

That same day, Tracy Reynolds [“Reynolds”], a nurse who had been performing

some of Holly’s duties while she was out, needed to obtain information for a recently admitted
resident with whom she had been working. Reynolds looked for the file in the admissions office

12

Motion ¶ 7, at 4; Opposition at 2 (undisputed).

13

Motion ¶ 12, at 5; Holly does not address this numbered fact. Therefore, the Court takes this fact as undisputed for
purposes of summary judgment.
14

Motion ¶ 13, at 5; Opposition at 2 (undisputed).

15

Motion ¶¶ 16–17, at 5–6; Holly does not dispute ¶ 17, and as for ¶ 16, Holly does not address this numbered fact.
Therefore, the Court takes ¶ 16 as undisputed for purposes of summary judgment.

16

Motion ¶ 18, at 6; Opposition at 5. Although Holly claims to dispute this fact, she admits in her response that
Anderson never instructed her to discard original files.

17

Motion ¶ 19, at 6; Opposition at 5. Holly attempts to dispute this fact by stating that she was instructed by
Anderson to shred duplicate files; her response does not create a dispute.
3

but could not find it. During her search, Reynolds also noticed that several other active files,
which she had helped prepare, were missing. 18
12.

While Reynolds looked for the missing files, another employee, Val[erie Ryan],

informed her that Holly said she had been instructed to get rid of all of the files in the admissions
office. 19
13.

Reynolds searched the facility and eventually found 42 original active files in

three separate shredder bins. 20
14.

After finding the files in the shredder bins, Reynolds informed Williams that she

had pulled 42 original files out of three separate shredder bins, and that Holly was the individual
who had thrown them away. 21
15.

Williams and Reynolds spoke to Holly and asked her why she had thrown the

original files in the shredder bins. Holly responded that Anderson told her to throw away the
files in the admissions office. 22
16.

Given Holly’s experience in this position, she should have known not to discard

original files. 23
17.

Holly should have been able to easily determine from the color of the paper in the

files whether it was an original or a duplicate (originals have a pink sheet of paper on top). 24
18

Motion ¶ 20, at 6; Opposition at 2 (undisputed).

19

Motion ¶ 21, at 6; Holly does not address this numbered fact. Therefore, the Court takes this fact as undisputed for
purposes of summary judgment.
20

Motion ¶ 22, at 7; Opposition at 5. This fact has been edited to remove Holly’s dispute that it was her who
actually discarded the original files.
21

Motion ¶ 23, at 7; Holly does not address this numbered fact. Therefore, the Court takes this fact as undisputed for
purposes of summary judgment.
22

Motion ¶ 24, at 7; Opposition at 5. Holly purports to dispute this fact by arguing that Defendant has not
established it was her who actually placed the original files at issue in the shred bins. Holly’s response and the
evidence she cites does not controvert this fact. Therefore, the Court takes this fact as undisputed for purposes of
summary judgment.

23

Motion ¶ 25, at 7; Opposition at 2 (undisputed).
4

18.

When Williams asked Holly about the files she had thrown away, she denied

throwing away any file with a pink form on the top. 25
19.

Holly later admitted that she may have thrown away original files because she

“did not go through the file” before discarding them. 26
20.

According to Williams, the fact that Holly threw the files into three separate shred

bins throughout the facility “was as clear an act of sabotage as [he’d] ever seen” and he believed
she knew what she was attempting to destroy when she put them in the shredder bins. 27
21.

Both Williams and Anderson believed Holly intentionally and purposefully

discarded the original files. 28
22.

Anderson immediately called Human Resources because destruction of property

is grounds for immediate termination. 29
23.

Following their investigation, Anderson and Williams jointly decided to terminate

Holly’s employment for placing original admissions packets into three separate shredder bins. 30
24.

Williams notified Holly of this decision on January 24, 2012. 31

24

Motion ¶ 26, at 7; Holly does not address this numbered fact. Therefore, the Court takes this fact as undisputed for
purposes of summary judgment.
25

Motion ¶ 27, at 7; Opposition at 5–6. The fact has been edited to remove Holly’s dispute with the word “initially”
which suggests that Holly was deceitful.
26

Motion ¶ 28, at 7; Opposition at 6. Holly does not dispute this fact, she simply argues that because of her
reasonable belief she was disposing duplicate files, additional scrutiny of the discarded files was neither warranted
nor instructed.
27

Motion ¶ 29, at 7–8; Holly does not address this numbered fact. Therefore, the Court takes this fact as undisputed
for purposes of summary judgment.

28

Motion ¶ 30, at 8; Holly does not address this numbered fact. Therefore, the Court takes this fact as undisputed for
purposes of summary judgment.
29

Motion ¶ 31, at 8; Opposition at 6. This fact has been edited to remove Holly’s dispute with the word
“misconduct.”
30

Motion ¶ 33, at 8; Holly does not address this numbered fact. Therefore, the Court takes this fact as undisputed for
purposes of summary judgment.
31

Motion ¶ 34, at 8; Holly does not address this numbered fact. Therefore, the Court takes this fact as undisputed for
purposes of summary judgment.
5

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment 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.” 32
When analyzing a motion for summary judgment, the court must “view the evidence and draw
all reasonable inferences therefrom in the light most favorable to the party opposing summary
judgment.” 33 However, “the nonmoving party must present more than a scintilla of evidence in
favor of his position.” 34 A dispute is genuine only “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” 35
DISCUSSION
A. ADA Discrimination Claim
The ADA prohibits covered employers from discriminating against disabled
individuals. 36 Claims that rely on circumstantial evidence to allege disability discrimination in
violation of the ADA, as in the case here, are subject to the burden-shifting analysis originally
established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. 37 Under
the McDonnell Douglas analysis:
[I]f the employee establishes a prima facie case of discrimination, then a
presumption of discrimination arises, resulting in the burden shifting to the
employer to articulate a legitimate, non-discriminatory reason for the
adverse employment action. If the [employer] carries its burden of
production, the presumption of discrimination drops out of the case, and
“[t]he burden then shifts back to the [employee], who must prove by a
32

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

33

Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1204 (10th Cir. 2011) (citation and internal
quotations omitted).
34

Ford v. Pryor, 552 F.3d 1174, 1178 (10th Cir. 2008) (citations omitted).

35

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Kerber v. Qwest Group Life Ins. Plan, 647
F.3d 950, 959 (10th Cir. 2011).
36

See 42 U.S.C. § 12112(a) (2009).

37

411 U.S. 792 (1973).
6

preponderance of the evidence that the employer’s reasons are a pretext
for unlawful discrimination. 38
To establish a prima facie case of disability discrimination, a plaintiff must show: (1) she
is disabled as defined by the ADA; (2) she is qualified to perform the essential functions of the
job with or without reasonable accommodation; and (3) she suffered discrimination on the basis
of her disability. 39
Defendant contends that Holly cannot meet the first and third prongs of the prima facie
case of disability discrimination. 40 Moreover, even if she could, Defendant maintains that Holly
cannot demonstrate that Defendant’s reason for discharging her—destruction of original files—is
pretextual. Holly argues that she can establish a prima facie case of disability discrimination, and
Defendant’s purported reason for her termination is pretextual. 41 Because Holly cannot establish
that Defendant’s reason for terminating her employment was pretextual, the Court can assume,
without deciding, that Holly has established a prima facie case of discrimination and focus solely
on the question of pretext.
In order to rebut the presumption that arises upon the establishment of a prima facie case
of discrimination, the second step of the McDonnell Douglas burden shifting analysis requires
the employer to produce enough competent evidence, taken as true, to enable a rational factfinder
to conclude that there exists a nondiscriminatory reason for the challenged employment action.
Defendant has justified its action by stating that Holly’s attempt to destroy original files was
intended to sabotage the facility. 42 Holly concedes that Defendant has proffered a legitimate
38

Thomas v. Avis Rent a Car, 408 F. App'x 145, 152 (10th Cir. 2011) (internal quotation marks and citation
omitted).
39

See Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, 1124 (10th Cir. 2008).

40

Motion at 13–15.

41

Opposition at 12–20.

42

Motion at 15.
7

nondiscriminatory reason for Holly’s termination, 43 which shifts the burden back to Holly to
establish a genuine dispute as to whether Defendant’s action was pretextual.
In making a determination of pretext, Holly must “present some affirmative evidence that
disability was a determining factor in the employer’s decision.” 44 “Pretext can be shown by such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons.” 45 However, “[w]hen assessing a contention of pretext, [the court]
examines the facts ‘as they appear to the person making the decision to terminate [the]
plaintiff.’” 46 Hence, “the relevant inquiry is not whether [the employer’s] proffered reasons were
wise, fair[,] or correct, but whether [the employer] honestly believed those reasons and acted in
good faith upon those believes.” 47 The court should not “second guess an employer’s business
judgment.” 48
Holly makes several arguments in support of her pretext claim. To begin, Holly contends
that the parties have vastly differing accounts of the events surrounding her termination. 49 Holly
points out that while Anderson testified that she did not instruct Holly to shred any documents, 50
Holly’s testimony at all times has been that she was told by Anderson that “all the duplicate files

43

Opposition at 17.

44

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).

45

Id. (citation and internal quotation marks omitted).

46

Selenke v. Med. Imaging of Colorado, 248 F.3d 1249, 1261 (10th Cir. 2001) (quoting Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000)).

47

Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004) (citation and internal quotation marks omitted).

48

Id.

49

Opposition at 17.

50

See Holly’s Ex. P-2, Anderson’s Dep. 69:2–22 (“I would never instruct an employee to dispose of any files. I
instructed her she was not to keep duplicate files in the office. I did not instruct her to dispose of anything.”).
8

in the filing cabinet and on the filing cabinet need to be placed in the shredder bins, and get rid of
the filing cabinet . . . .” 51 Holly further argues that she has consistently testified that “she did not
believe the documents she threw away were original copies[,]” 52 and “[h]undreds of people use
those shredders.” 53 Holly argues that if the court views the facts in the light most favorable to
her, the pretext is that “Anderson first required [her] to complete a task, fired her for it, and then
denied ever having done so.” 54 Holly next claims that one trier-of-fact, the Administrative Law
Judge (“ALJ”), “has already had the opportunity to assess which version of events was more
credible, and found . . . Holly to be more trustworthy.” 55 The ALJ’s assessment of credibility,
Holly argues, is an indication that a reasonable jury could infer that Defendant did not act for the
asserted non-discriminatory reason. Holly also argues Defendant’s prior treatment of her—
threatening that she will lose her job for making medical appointments, not allowing her to use
the restroom at times, and unreasonably requiring her to clear with management all medical
appointments—provides evidence from which a jury could infer discriminatory motivation. 56
Lastly, Holly claims that Williams’ refusal to accommodate her return on December 27, 2012,
from an approved medical leave, contradicts Defendant’s policy. 57 This, she asserts, is a
procedural irregularity that can be used to infer discriminatory intent.
Because the employer’s perception of the facts at the time of the decision to terminate
controls, Holly’s arguments are unavailing. The undisputed facts are that (1) Reynolds searched
the facility and found 42 original active files in three separate shredder bins; (2) Reynolds
51

Holly’s Ex. G-1, Holly Dep. 185:1–5.

52

Opposition at 18.

53

Holly’s Ex. G-6, Holly Dep. 198:25–199:1.

54

Opposition at 18.

55

Id. at 19 (citing Holly’s Ex. V, Decision of Workforce Appeals Board).

56

Id. at 20.

57

Id.
9

informed Williams that she had found original files in shredder bins and that Holly was the
individual who had thrown them away; (3) Williams believed that Holly knew what she was
attempting to destroy when she put the files in the shredder; (4) both Williams and Anderson
believed Holly intentionally and purposefully discarded the original files, (5) destruction of
property is grounds for immediate termination, and (6) Anderson and Williams jointly decided to
terminate Holly’s employment for placing original admissions packets into three separate
shredder bins.
Even if Holly was not the one that discarded the original files, the only conclusion
permitted based on the undisputed facts, is that Defendant reasonably, although erroneously,
believed that Holly intentionally and purposefully discarded the original files and terminated her
accordingly. To show pretext, Holly must point to facts supporting a conclusion that Defendant’s
determination was “unworthy of credence[.]” 58 It is true that evidence of prior treatment and
disturbing procedural irregularities 59 can support pretext, however, Holly’s purported evidence
does not raise to a level where it establishes “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in Defendant’s legitimate reason.
Holly’s evidence that she was threatened with job loss comes from her deposition
testimony where she states that Williams made “snipe” comments under his breath a couple of
times during the summer of 2011. 60 These “snipe” comments allegedly occurred at least six
months prior to Holly’s termination and thus lack temporal proximity to the adverse employment
action. As for Holly’s assertion that she was not allowed to use the restroom at times, Holly’s
cited evidence reveals that there was only a single occurrence when Holly was required to wait a
58

Morgan, 108 F.3d at 1323.

59

Jaramillo v. Colorado Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir. 2005), as modified on denial of reh'g (Dec.
20, 2005).
60

Opposition at 20 (citing Ex. G-15 & 16).
10

few hours before using the restroom because Williams was in a meeting and was not to be
disturbed. 61 Likewise, Holly’s claim that Williams unreasonably required her to clear all medical
appointments with him prior to setting them does not permit a reasonable inference of
discriminatory animus. It is not uncommon to require employees to clear appointments, from
which they will be absent from work, with their employer. Finally, Williams’ refusal to
accommodate Holly’s return on December 27, 2012 is insufficient to warrant an inference of
pretext due to a procedural irregularity because Holly has failed to present sufficient evidence of
a procedural irregularity. Holly argues that Hanson testified that a refusal to reinstate would be
inconsistent with company policy, quoting: “Okay. Uh, would it contradict Kindred policy for
him to say I can’t take this, yes. Yes it would, if he said that.” 62 Holly cites to Exhibit I-2 for the
quoted language, however, the cited document does not actually contain the quoted language.
None of Holly’s arguments raise a genuine issue of fact to discredit Defendant’s goodfaith belief supporting its legitimate, nondiscriminatory reason for terminating Holly’s
employment for discarding original client files. In sum, Holly has not demonstrated that any
genuine issue of material fact exists as to pretext. Because Holly fails to satisfy her pretext
burden, summary judgment is appropriate.
B. ADA Retaliation
Holly claims that she was retaliated against after engaging in activity protected by the
ADA. Specifically, Holly alleges that she engaged in a protected activity when she requested a
reasonable accommodation from Defendant, filed a complaint with the Utah Antidiscrimination
and Labor Division (“UALD”), and when she opposed Williams’ and Anderson’s discriminatory

61

Defendant’s Ex. A, Holly’s Dep. 141:23–143:16.

62

Opposition at 20–21.
11

behavior and reported their behavior to the Defendant’s Compliance Hotline. 63 Holly claims that
she was terminated soon after these protected activities occurred. 64
The ADA provides that “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere
with any individual in the exercise or enjoyment of . . . any right granted or protected by this
chapter.” 65 In order to establish a prima facie case of retaliation under the ADA, the plaintiff
must show: “(1) that she engaged in an activity protected by the statute; (2) that she was
subjected to [an] adverse employment action subsequent to or contemporaneous with the
protected activity; (3) that there was a causal connection between the protected activity and the
adverse action.” 66 Retaliation claims are subject to the McDonnell Douglas burden shifting
approach discussed above. 67 Thus, “if the plaintiff establishes a prima facie case, the burden
shifts to the employer to articulate a nondiscriminatory reason for the adverse employment
action. If the employer satisfies this burden of production, then, in order to prevail on her
retaliation claim, the plaintiff must prove that the employer's articulated reason for the adverse
action is pretextual, i.e. unworthy of belief.” 68
“[I]n order to prosecute an ADA retaliation claim, a plaintiff need not show that she
suffers from an actual disability. Instead, a reasonable, good faith belief that the statute has been

63

See Complaint at 12; Opposition at 21.

64

Id.

65

42 U.S.C. § 12203(b).

66

Selenke, 248 F.3d at 1264 (citation and internal quotation marks omitted).

67

Stover, 382 F.3d at 1070 (“[W]e analyze a retaliation claim under the McDonnell Douglas burden-shifting
framework.”).
68

Selenke, 248 F.3d at 1264.
12

violated suffices.” 69 Thus, a meritorious retaliation claim can stand even if the underlying
discrimination claim fails.
In this case, the first two elements are satisfied. Holly engaged in a protected activity
when she requested reasonable accommodation and filed a complaint with UALD and
Defendant’s Compliance Hotline for discrimination. And Holly’s later termination by Defendant
constitutes a materially adverse action. There remains only the third element. To prove the third
element, Holly must establish a causal connection between her protected activities and her later
termination. “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.’” 70 Holly relies on the temporal proximity between her
protected activities and her later termination by Defendant as one relevant factor. Holly states
that she filed a complaint with UALD on December 30, 2011 and requested reasonable
accommodations on January 4, 2012. Because Holly’s termination occurred less than a month
after she engaged in these protected activities, Holly has satisfied the third element of her prima
facie case. 71
Having established her prima facie case of retaliation, the next step would be to continue
with the burden shifting analysis as previously discussed in the analysis of the ADA
discrimination claim. Here, it is undisputed that Defendant has come forward with a legitimate,
nondiscriminatory reason for terminating Holly’s employment. 72 Therefore the burden shifts
69

Id. (citing Krouse v. American Sterilizer Co., 126 F.3d 494, 502 (3d Cir. 1997) (“Unlike a plaintiff in an ADA
discrimination case, a plaintiff in an ADA retaliation case need not establish that he is a ‘qualified individual with a
disability.’ By its own terms, the ADA retaliation provision protects ‘any individual’ who has opposed any act or
practice made unlawful by the ADA.”)).
70

Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006) (quoting Garrett v. HewlettPackard Co., 305 F.3d 1210, 1221 (10th Cir. 2002)).

71

Id.

72

Opposition at 17.
13

back to Holly to establish a genuine dispute as to whether Defendant’s action was pretextual.
Although temporal proximity is a relevant factor in determining whether an employer’s
explanation is a pretext for retaliation, that factor alone is insufficient to defeat summary
judgment. “To raise a fact issue of pretext, . . . [the plaintiff] must . . . present evidence of
temporal proximity plus circumstantial evidence of retaliatory motive.” 73 Holly argues that the
same evidence that establishes pretext for her ADA discrimination claim serves as supporting
circumstantial evidence of retaliatory motive. 74 Here, Holly’s retaliation claim fails for the same
reasons previously articulated under the pretext analysis of Holly’s ADA discrimination claim.
That is, the undisputed facts establish that the cause of Holly’s termination was Defendant’s
reasonable belief that Holly had intentionally discarded original files, and Holly’s evidence of
pretext is insufficient to create a genuine issue of material fact. Thus, Holly has failed to meet
her burden of showing that a genuine dispute of fact exists as to whether Defendant’s proffered
non-retaliatory reason for termination was pretextual. Accordingly, Defendant is entitled to
summary judgment on this claim.
C. FMLA Interference
Holly also asserts a cause of action under 29 U.S.C. § 2615(a) of the FMLA. 75 “This
circuit has recognized two theories of recovery under [29 U.S.C.] § 2615(a): an entitlement or
interference theory arising from § 2615(a)(1), and a retaliation or discrimination theory arising
from § 2615(a)(2).” 76 Holly has only pled an interference claim arising from § 2615(a)(1). 77
73

Metzler, 464 F.3d at 1172.

74

Opposition at 22.

75

See 29 U.S.C. § 2615.

76

Metzler, 464 F.3d at 1170.

77

See Complaint at 13; Opposition Memorandum at 22–25. Aside from referencing § 2615(a)(2) in the Complaint,
nothing else in the Complaint or Opposition Memorandum suggests Holly intended to bring a retaliation claim
arising from § 2615(a)(2) instead of or in addition to her interference claim.
14

“To establish a claim for FMLA interference under § 2615(a)(1), an employee must show
‘(1) that she was entitled to FMLA leave, (2) that some adverse action by the employer interfered
with her right to take FMLA leave, and (3) that the employer’s action was related to the exercise
or attempted exercise of her FMLA rights.’” 78 “In order to satisfy the second element of an
interference claim, the employee must show that she was prevented from taking the full 12
weeks of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial
permission to take leave.” 79 “Thus, an interference claim arises when an adverse employment
decision is made before the employee has been allowed to take FMLA leave or while the
employee is still on FMLA leave.” 80 What is more, “[i]f an employer interferes with the FMLAcreated right to medical leave or to reinstatement following the leave, a deprivation of this right
is a violation regardless of the employer’s intent.” 81
“If the employee can demonstrate that the first two elements of interference are satisfied,
the employer then bears the burden of demonstrating that the adverse decision was not ‘related to
the exercise or attempted exercise of [the employee’s] FMLA rights.’” 82 The employer, however,
“is not required to show that the adverse employment decision and the employee’s FMLA
request are completely and entirely unrelated.” 83 Such that, an “indirect causal link between
dismissal and an FMLA leave is an inadequate basis for recovery[.]” 84

78

Dalpiaz v. Carbon Cnty., Utah, No. 13-4062, 2014 WL 3686003, *4 (10th Cir. July 25, 2014) (quoting Campbell
v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)).
79

Campbell, 478 F.3d at 1287–88.

80

Dalpiaz, 2014 WL 3686003, *4.

81

Smith v. Diffee Ford-Lincoln-Mercury, Inc. 298 F.3d 955, 960 (10th Cir. 2002).

82

Dalpiaz, 2014 WL 3686003, *4 (quoting Campbell, 478 F.3d at 1287).

83

Id.

84

Id. (internal quotation marks and citation omitted).
15

In this case, the first element of Holly’s interference claim is not at issue. 85 She was
entitled to leave. As for the second element of interference, Holly argues that Defendant
interfered with her right to take FMLA leave on at least two occasions. Holly contends that the
first occasion occurred when Holly attempted to return to work on December 27, 2014, after
being on approved FMLA leave from December 2 through December 27. 86 The second occasion
of interference allegedly occurred when Defendant terminated Holly’s employment, thus
“interfere[ring] with her right to exercise the [reduced workload] leave requested by . . . Holly,
and certified by Dr. Putman in his request for FMLA.” 87
1. Denial of Reinstatement With Restrictions as Interference
Holly claims that on December 27, 2012, she returned to work with a doctor’s note, 88
which stated that Holly was allowed to work with certain “restrictions.” 89 Williams then
informed Holly that she was not allowed to return to work with any restrictions in place. 90 Holly
argues that Defendant interfered with her FMLA rights when it failed, on December 27, 2012, to
reinstate her, with the restrictions, to her previous position. 91 Defendant contends, among other
things, that “Holly is attempting to use the FMLA as an alternative means to justify an otherwise
unreasonable ADA accommodation request.” 92

85

Defendant, while addressing Holly’s first FMLA interference claim—reinstatement with restrictions—does
dispute whether Holly’s condition amounted to a “serious health condition” entitling her to FMLA leave. See Reply
at 23. Holly’s first FMLA interference claim is, however, resolved on other grounds.
86

Opposition at 23.

87

Id. at 24.

88

Certification of Health Care provide for Employee’s Serious Health Condition, Holly’s Ex. K.

89

Complaint at 7.

90

Complaint at 7–8; Opposition at 23.

91

Opposition at 23.

92

Reply Memorandum in Support of Defendant’s Motion for Summary Judgment at 24, docket no. 20, filed April
17, 2014.
16

The FMLA guarantees an eligible employee twelve weeks of unpaid leave for a serious
health condition that makes the employee unable to perform the functions of the position. 93 On
return from such leave, the employee is entitled to be “restored by the employer to the position of
employment held by the employee when the leave commenced;” or “restored to an equivalent
position with equivalent employment benefits, pay, and other terms and conditions of
employment.” 94 However, there are limitations to an employee’s right to reinstatement. One such
limitation is when “the employee is unable to perform an essential function of the position
because of a physical or mental condition, . . . the employee has no right to restoration to another
position under the FMLA.” 95 Under this limitation, “[t]he employer’s obligation may, however,
be governed by the Americans with Disability Act (ADA), . . . state leave laws, or workers’
compensation laws.” 96
Thus, the rights created under the FMLA are different than those granted under the ADA.
Unlike the ADA, the FMLA does not include a reasonable accommodation provision. The
FMLA requires examination of the employee’s ability to perform the essential functions of a
position. 97 If an employee cannot perform the essential functions of her position, the employer is
not obligated, pursuant to the FMLA, to accommodate the employee. The First, Third, Eighth
and Eleventh Circuits have specifically addressed the present issue—that is, an employer’s
FMLA obligation to reinstate a returning employee to his or her same or an equivalent job with
an ADA reasonable accommodation. All four circuits have rejected the blending of the FMLA’s
and ADA’s standards.
93

See 29 U.S.C. § 2612(a)(1)(D).

94

29 U.S.C. § 2614(a)(1); 29 C.F.R. § 825.214.

95

29 C.F.R. § 825.216(c).

96

Id.

97

Id.
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The Eleventh Circuit, for example, rejected an FMLA reasonable accommodation
argument, and ultimately concluded that “[t]o the extent that [the employee] argues that the
failure to provide her with extended leave at the conclusion of her FMLA leave denied her of a
reasonable accommodation, the reasonable-accommodation requirement under the ADA is
distinct from [an] FMLA interference claim.” 98 Similarly, the Eighth Circuit has held that “the
FMLA omits any requirement that employers seek to reasonably accommodate employees who
cannot perform the essential function of their respective positions.” 99 Likewise, the Third Circuit
observed that “[t]he FMLA does not require ‘an employer to provide a reasonable
accommodation to an employee to facilitate his return to the same or equivalent position at the
conclusion of his [FMLA] medical leave.’” 100 Finally, the First Circuit has noted that “it is not at
all clear that the concept of ‘reasonable accommodation’ is applicable in the FMLA context,”
because “[u]nlike the ADA, . . . [the FMLA] omits the qualifying ‘with or without reasonable
accommodation’ language.” 101
Defendant correctly notes that Holly has attempted to read the ADA’s reasonable
accommodation provision into her FMLA interference claim. Reasonable accommodation is not
an entitlement guaranteed by the FMLA. Under the FMLA, Holly must show that she was able to
perform the essential functions of her previous position to be entitled to reinstatement. Holly has
failed to allege or argue that on December 27, when she requested reinstatement, she was able to
perform the essential functions of her job. Holly cannot satisfy the second element of her
interference claim by the denial of reinstatement with restrictions. Holly’s reinstatement claim
98

Gilliard v. Ga. Dep't of Corr., No. 12–11751, 2012 WL 6115913, at *2 (11th Cir. Dec. 7, 2012) (quoting 29
C.F.R. § 825.702(a)).
99

Battle v. United Parcel Serv., Inc., 438 F.3d 856, 865 (8th Cir. 2006) (citing former 29 C.F.R. § 825.214(b)).

100

Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012) (quoting Rinehimer v. Cemcolift, Inc., 292
F.3d 375 (3d Cir.2002)).
101

Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d 538, 544 (1st Cir. 1999).
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also fails because Defendant did reinstate Holly to her previous position on January 16, 2012, the
date when Holly’s work restrictions were lifted. 102
2. Termination as Interference
Holly contends that on or about January 18, 2012, her physician submitted FMLA
paperwork to Defendant which stated that “Holly should be eligible for intermittent leave
moving forward from January 18, 2012.” 103 Williams then contacted Holly and asked her to
come into work on January 24, 2012, to discuss the restrictions outlined in her physician’s
FMLA paperwork. 104 Holly argues that instead of discussing her work restrictions, Williams
terminated Holly’s employment. 105 Holly contends that the termination of her employment was
an interference of “her right to exercise the leave requested by . . . [her], and certified by Dr.
Putman in his request for FMLA.” 106 The termination could satisfy the second element of a
FMLA interference claim because it is an “adverse action by the employer [that] interfered with .
. . [Holly’s] right to take FMLA [intermittent] leave.” 107
Since Holly has provided proof on the first two elements of her interference claim, the
burden shifts to Defendant to produce facts showing that Holly would have been dismissed
regardless of the employee’s request for FMLA leave. 108 Holly claims that the temporal
proximity between her FMLA request and her termination; the pattern of adverse employment
actions taken by Defendant (suspending Holly when she attempted to return to work on

102

See Holly’s Ex. Q.

103

Opposition at 24.

104

Id.

105

Id.

106

Id.

107

Dalpiaz v. Carbon Cnty., Utah, No. 13-4062, 2014 WL 3686003, *4 (10th Cir. July 25, 2014) (quoting Campbell
v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)).
108

Dalpiaz, 2014 WL 3686003, *4.
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December 27, 2011 and terminating Holly’s employment on January 24, 2012); and her
testimony that Williams had made threatening comments that she would lose her job for taking
leave, provide more than enough evidence to create a question of material fact whether her
employment would have been terminated regardless of her FMLA request. 109 Here, only the
“temporal proximity” argument has potential merit. Timing can be “particularly suggestive” in
determining whether termination relates to the exercise of FMLA rights. 110 However, even
taking into consideration the temporal proximity of Holly’s dismissal, Defendant has
nevertheless carried its burden of producing evidence that Holly would have been dismissed
regardless of her FMLA claim. 111 “A reason for dismissal that is unrelated to a request for an
FMLA leave will not support recovery under an interference theory.” 112
In this case, it is undisputed that destruction of property is grounds for immediate
termination, and that Holly’s termination occurred after Williams and Anderson were informed
that she discarded original client files. Holly has not come forward with any evidence nor raised
any arguments to indicate that Defendant would have made a different adverse decision for the
same type of conduct—discarding original files—outside of the FMLA context. Based on all of
the evidence in the record, even when taken in the light most favorable to Holly, Defendant has
met its burden of producing evidence that Holly would have been dismissed regardless of her
request for an FMLA leave. Holly’s termination as interference claim fails as a matter of law.

109

Opposition at 25.

110

DeFreitas v. Horizon Inv. Mgmt. Corp., 577 F.3d 1151, 1160 (10th Cir. 2009).

111

See e.g., Brown v. ScriptPro, LLC, 700 F.3d 1222, 1228–29 (10th Cir. 2012) (Noting that although Plaintiff was
dismissed two days after requesting FMLA leave, the uncontroverted evidence established that Defendant’s
termination of Plaintiff’s employment was unrelated to Plaintiff’s request for FMLA leave).
112

Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 877 (10th Cir. 2004).
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D. UADA Discrimination
Holly, in her opposition to Defendant’s motion for summary judgment, makes no
argument in support of her UADA discrimination claim. Thus, she has abandoned this claim. 113
For this reason alone, it is proper to grant Defendant’s motion for summary judgment with regard
to this claim.
Even if Holly had responded to this claim, Defendant would have succeeded on the
merits because “[a] plaintiff may pursue his or her claims under the UADA only through state
administrative procedures.” 114 Accordingly, Holly’s UADA discrimination claim is dismissed
both procedurally as well as on the merits.
ORDER
IT IS HEREBY ORDERED that Defendant’s motion 115 for summary judgment is
GRANTED. The Clerk is further directed to close the case with prejudice.
Dated September 30, 2014.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

113

See Buckly Constr., Inc. v. Shawnee Civic & Cultural Dev. Authority, 933 F.2d 853, 855 n. 2 (10th Cir.1991)
(affirming trial court’s dismissal of claims never addressed in the opposition memorandum).
114

McNeil v. Kennecott Utah Copper Corp., No. 2:08CV41DAK, 2009 WL 2554726 (D. Utah Aug. 18, 2009) aff'd
sub nom. McNeil v. Kennecott Holdings, 381 F. App'x 791 (10th Cir. 2010); see also U.C.A. § 34a-5-107(15) &
(16).
115

Defendant’s Motion for Summary Judgment and Memorandum in Support, docket no. 16, filed February 27,
2014.
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