Angel v. Lisbon Valley Mining

Filing 23

MEMORANDUM DECISION granting 13 Motion for Summary Judgment. Signed by Judge Bruce S. Jenkins on 11/23/15. (jlw)

FILED
2015 NOV 23 AM 10:33
CLERK
U.S. DISTRICT
COURT
Richard M. Hymas (USB# 1612)
Bret F. Randall (USB# 6634)
DURHAM JONES & PINEGAR
Attorneys for Defendant
111 E. Broadway, Suite 900
Salt Lake City, UT 84111
Telephone [phone]
Facsimile [phone]
Email: [e-mail]
Email: [e-mail]

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

KEVIN LEE ANGEL,
Plaintiff,

v.

~MEMORANDUM
DECISION AND ORDER GRANTING
DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT·

LISBON VALLEY MINING CO. LLC,
Defendant.

Case No. 2:14-cv-00733 BSJ

This matter is before the Court on Defendant's Motion for Summary Judgment.
Following briefing by the parties, the Court held a hearing on the Motion on November 9, 2015.
Plaintiff was represented by David Holdsworth. Defendant was represented by Richard M.
Hymas and Bret F. Randall. Having fully considered the Motion, memoranda, exhibits,
declarations, and other evidence submitted by the parties, as well as the arguments of counsel
made at the hearing, and the undisputed facts and applicable law relevant to the Motion, the Court
granted the Motion. The Court now enters its Memorandum Decision and Order, setting forth the
basis for its decision.

SLC_2569973.4

BACKGROUND
Plaintiff Kevin Lee Angel ("Angel") alleges claims against Defendant Lisbon Valley
Mining Co. LLC ("Lisbon Valley") for disability discrimination, failure to provide reasonable
accommodation, and retaliation in violation of the Americans with Disabilities Act of 1990
I

("ADA").

:.

Lisbon Valley operates a copper mine in San Juan County, Utah. From October 2011 to
January 2012, Angel was employed by Lisbon Valley as a haul truck driver, a safety-sensitive
position. While interviewing for the job, Angel was told about Lisbon Valley's prescription drug
policy and was given a document setting forth the tenns of the policy, which he read and signed. 1
On January 12, 2012, while undergoing a random drug test, Angel tested positive for
oxycodone, and was placed on administrative leave. 2 Lisbon Valley learned from Angel that he
had obtained a prescription for oxycodone in December 2011, and that he had been taking' the
medication, while continuing to work, without notifying human resources, presenting a copy of
the prescription to human resources, or obtaining a work release from the company's
occupational physician, all in violation of the prescription drug policy. 3 Lisbon Valley
terminated Angel's employment a few days later based on his failure to comply with Lisbon
Valley's prescription drug policy. 4
Angel timely filed a charge of discrimination against Lisbon Valley with the Utah Labor
Commission's Antidiscrimination and Labor Division (the "UALD") and the Equal Employment
Opportunity Commission (the "EEOC"), claiming disability. discrimination under the ADA.
1

Declaration of Cyndi Eldredge ("Eldredge Decl.") at,-[ 14 & Ex. F thereto; Deposition of Kevin
Lee Angel dated Aug. 27, 2015 ("Angel Depo.") at 32:1-23.
2
Eldredge Decl. ,-[,-[ 19-20 & Ex. I thereto; Angel Depo. 82:23-25, 86:8-12.
3
Eldredge Decl. ,-[,-[ 21-23; Angel Depo. 77:8-81:5, 88:7-23.
4
Eldredge Decl. ,-[ 24 & Ex. L thereto; Angel Depo. 92:5-10, 96:23-97:2.
SLC_2569973.4

2

Angel later amended the charge to add a retaliation claim. After completing its investigation, the
UALD issued a Determination and Order, dated March 6, 2013, finding that there was "rio
reasonable cause;' to believe that Angel was subjected to the discriminatory practices alleged.
Angel appealed the no-cause detennination to the appeals unit of the UALD, but later withdrew
his charge and obtained a right-to-sue letter. This action followed.
Lisbon Valley has filed a motion for summary judgment against Angel on all claims
alleged in Angel's Complaint. The Court has determined that, based upon the undisputed
evidence presented, there is no genuine issue of material fact and Lisbon Valley is entitled to
judgment as a matter oflaw.

UNDISPUTED FACTS
The following facts are undisputed:
1.

During a pre-employment interview, after Angel reviewed the job description for

the haul tmck driver job for which he was applying, he was specifically asked whether there was
anything listed under the essential duties or physical requirements of the job that he could not
perform with or without a reasonable accommodation. He said no. 5
2.

During that interview, Angel did not state that he had a disability, nor did he

request, or state that he needed, any accommodation in order to perform the duties of the job. 6
3.

During that interview, Angel was told about Lisbon Valley's prescription dmg

policy, which applies to haul tmck drivers. He was given a document setting forth the terms of
the policy, which he read and signed. 7

Eldredge Decl. ~ 11.
Eldredge Decl. ~ 12; Angel Depo: 22:13-17, 25:18-22, 103:2-7.
7
Eldredge Decl. ~ 14 & Ex. F thereto; Angel Depo. 32:1-23.

5

6

SLC_2569973.4

3

4.

In a subsequent pre-employment meeting, while reviewing and discussing the

prescription dmg policy, Angel told Lisbon Valley's human resources manager that he
sometimes took medication for back pain but that he was not taking any medication at the time.
Angel did not state at that time that he had a disability or that he required any type of
accommodation in order to perfonn the duties of his job. 8
5.

The prescription dmg policy provides that employees taking, prescription dmgs

that may impair their ability to safely perform their job must inform human resources of the use
of such medication, provide human resources with a copy of the prescription for any such
medication, and obtain a release from Lisbon Valley's occupational physician authorizing the
employee to work and specifying any work restrictions that must be followed, before the
employee may return to work. The policy further states that an employee's failure to disclose
that the employee is taking prescription medication could result in immediate tennination. 9
6.

Angel was fully aware of the policy's requirements and agreed to comply with

them. Specifically, he was aware that the policy required him to disclose the use of oxycodone
before working, regardless of his beliefs about his ability to work safely while taking that dmg. 10
7.

During a random dmg screening test on January 12, 2012, Angel tested positive

for oxycodone and was placed on administrative leave. 11
8.

Angel had obtained a prescription for oxycodone in December 2011 and had

begun using oxycodone at that time. Angel had not infonned human resources of that
prescription, presented a copy of the prescription to human resources, or provided human

Eldredge Decl. ~~ 15-16.
Eldredge Decl. ~ 14 & Ex. F thereto.
10
Angel Depo. 34:25-36:6,37:20-42:2, 64:3-10,64:19-22, 147:22-148:23, 149:16-150:6.
11
Eldredge Decl. ~~ 19-20.

8

9

SLC_2569973.4

4

resources with a doctor's release prior to taking the medication and reporting to work, as
required by the prescription drug policy. 12
9.

Angel's actions violated Lisbon Valley's prescription drug policy, which he

acknowledged in his deposition. 13
10.

On January 13, 2012, one day after the random drug test, Angel showed Lisbon

Valley's human resources manager his bottle of oxycodone and a note from the company's
occupational physician dated that day. 14 Neither the prescription bottle nor the doctor's note
indicated that Angel suffered from a disability or needed an accommodation for a disability. 15
11.

In fact, at no time while he was employed by Lisbon Valley did Angel ever tell

Lisbon Valley that he had a disability, nor did he ever ask Lisbon Valley for an accommodation
for a disability or infonn Lisbon Valley that he needed an accommodation for a disability. 16
12.

On January 19, 2012, Lisbon Valley notified Angel that he had been terminated

because of his violation of the company's prescription drug policy. 17
13.

Lisbon Valley has terminated the employment of every other employee who it has

learned has violated the company's prescription drug policy. 18

STANDARD OF REVIEW
Summary judgment is warranted if the facts in the record and reasonable inferences
drawn favorably to the plaintiff "could not lead a rational trier of fact to find for the [plaintiffJ." 19

Eldredge Decl. ~~ 21-23; Angel Depo. 77:8-81:5, 88:7-16.
Angel Depo. 88:17-19.
14
Eldredge Decl. ~~ 21-22.
15
Eldredge Decl. Ex. J and Ex. K.
16
Eldredge Decl. ~~5-6, 10-13, 16, 25, 27, 30; Angel Depo. 22:13-18,25:18-22, 103:2-7.
17
Eldredge Decl. ~ 24; Angel Depo. 92:5-10, 96:23-97:9.
18
Eldredge Decl. ~ 29.
19
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Bustos
12

13

SLC_2569973.4

5

ANALYSIS
I.

DISCRIMINATORY DISCHARGE UNDER THE ADA
In analyzing ADA cases, this Court applies the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973)? 0 Under McDonnell Douglas, the employee has
the burden of establishing a prima facie case of disability discrimination. 21 If the employee does
that, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its
actions? 2 Once an employer has provided a nondiscriminatory reason for its actions, any
presumption of discrimination "simply drops out of the picture."23 At this point, the employee
must show that "there is a genuine dispute of material fact as to whether the employer's
proffered reason for the challenged action is pretextual-i.e., unworthy ofbelief."

24

"[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 ofbelief."' 25 The employee retains the ultimate
burden of persuasion throughout the case.

A.

26

Prima Facie Case

v. A & E Television Networks, 646 F.3d 762, 767 (lOth Cir. 2011) (concluding that a claim was
amenable to summary judgment where "no reasonable juror could find" in favor of the plaintiff);
Shannon v. Graves, 257 F.3d 1164, 1167 (1Oth Cir. 2001) (stating that a ruling granting summary
judgment "means that no triable issue exists to be submitted to ajury").
·
20
The McDonnell Douglas analysis applies where, as here, the employee lacks direct evidence of
intentional discrimination. See EEOCv. C.R. England, Inc., 644 F.3d 1028, 1038 (lOth Cir.
2011).
21 see i-d.
22
See id.
23
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
24
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (lOth Cir. 1997).
25
EEOC v. C.R. England, Inc., 644 F.3d 1028, 1038-39 (lOth Cir. 2011) (quoting Johnson v.
Weld Cnty., Colo., 594 F.3d 1202, 1211 (lOth Cir. 2010) (alteration in original)) (quoting Hinds
v. Sprint/UnitedMgmt. Co., 523 F.3d 1187, 1197 (lOth Cir. 2008)).
26
See Butler v. City ofPrairie Vill., Kan., 172 F.3d 736,748 (lOth Cir. 1999).
SLC_2569973.4

6

To establish a prima facie case of disability discrimination under the ADA, an employee
must prove that he is disabled (as defined by the ADA), that he is qualified for his job, and that
he was fired because of his disability. 27 This final prong of the test "requires the plaintiff to
present some affinnative evidence that disability was a determining factor in the employer's
decision." 28 Angel has not met his burden of proof.
According to Lisbon Valley, the company did not know that Angel claimed to have a
disability prior to his termination? 9 And Angel admitted in his deposition that he never told
Lisbon Valley that he had a disability. 30 Angel contends, however, that after he tested positive
for oxycodone, he put Lisbon Valley on notice that he had a disability by informing human
resources that the oxycodone was for a back impairment and by providing human resources with
his prescription bottle and a note from the company's occupational physician. Opp. Memo. at
24. Neither the prescription bottle nor the doctor's note says anything about Angel having a
disability. 31 And even if Angel said he was taking the oxycodone for back pain, such a statement
is not enough to give notice to Lisbon Valley that he claimed to have a disability.
Because the undisputed evidence establishes that Lisbon Valley did not know that Angel
claimed to have a disability prior to his termination, Angel's alleged disability could not have
been a determining factor in Lisbon Valley's decision to terminate his employment. As a result,
Angel cannot establish his prima facie case of discriminatory discharge.
27

White v. York Intern Corp., 45 F.3d 357, 360-61 (lOth Cir. 1995); see also Morgan, 108 F.3d
at 1323.
28
Morgan, 108 F.3d at 1324 ("The plaintiff must present evidence that, if the trier of fact finds it
credible, and the employer remains silent, she would be entitled to judgment as a matter of
law.").
29
Eldredge Decl. ~ 26.
30
Ange1Depo.100:23-101:1, 103-2-4.
31
Eldredge Decl. Ex. J and Ex. K.
SLC_2569973.4

7

B.

Pretext

Even if Angel had established a prima facie case, he did not rebut the legitimate, nondiscriminatory reason articulated by Lisbon Valley for its actions. Lisbon Valley explained that
Angel was terminated because he violated the company's prescription drug policy. Angel has
presented no evidence to show that this explanation is a pretext.
In his deposition, Angel admitted that he violated the prescription drug policy by using
oxycodone and then coming to work without first notifying human resources that he was taking
oxycodone, providing human resources with a copy of the prescription, and obtaining a release
from the company's occupational physician. 32 Angel further acknowledged that he was
informed that his termination was based on his failure to comply with the prescription drug
policy. 33 He also admitted that he is not aware of any facts that would suggest that his
tennination was for a reason other than his violation of the policy. 34
Angel argued that Lisbon Valley's reason for his tennination was pretextual because he
did not violate the policy, supposedly because the policy did not apply to him. But Angel's
deposition testimony, in which he admits that the policy did apply to him and that he understood
he was obligated to comply with the policy, contradicts that argument. 35 Moreover, whether or
not Angel actually violated the prescription drug policy is not relevant to the issue of pretext.
Under Tenth Circuit case law, the analysis for Angel's pretext claim must focus on the question
of whether Lisbon Valley reasonably believed that Angel violated the prescription drug policy at
the time it made the decision to terminate his employment, not whether a policy violation

32

Angel Depo.
Angel Depo.
34
Angel Depo.
35
Angel Depo.
33

SLC_2569973.4

77:8-81:5, 88:7-88:19.
96:23-97:9.
98:14~20, 100:15-19, 103:24-104:5.
79:6-80:23, 147:22-148:23, 149:16-150:6.
8

actually occurred. 36 Angel has not presented any evidence to show that Lisbon Valley did not
believe that Angel violated the policy or that Lisbon Valley terminated him for any reason other
than this policy violation.
Based on the foregoing, Lisbon Valley is entitled to summary judgment on Angel's
discriminatory discharge claim.

II.

FAILURE TO ACCOMMODATE
Under section 102(b )(5)(A) ofthe ADA, 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." 37 "The statute thus establishes a cause of action for disabled employees whose
employers fail to reasonably accommodate them." 38 "To facilitate the reasonable
accommodation, '[t]he federal regulations implementing the ADA envision an interactive
process that requires participation by both parties. "' 39 However, before an employer's duty to
provide reasonable accommodations-or even to participate in the "interactive process"-is
triggered under the ADA, the employee must make an adequate request, thereby putting the
employer on notice. 40 Although the notice or request "does not have to be in writing, be made by

36

See, e.g., Tesh v. U.S. Postal Service, 349 F.3d 1270 (lOth Cir. 2003) ("But since we must
assess pretext by examining the facts as they appear to the person making the decision to
terminate, the question is not the factual accuracy of the memo but whether USPS reasonably
'perceived' that it was accurate.").
37
42 U.S.C. § 12112(b)(5)(A); accord Lowe v. Angelo's Italian Foods, Inc., 87 F.3-d 1170, 1174
(1Oth Cir. 1996).
38
Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (lOth Cir. 2001).
39
Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (lOth Cir. 2004) (alteration in original)
(quoting Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (lOth Cir. 1998)); see also 29
C.F.R. § 1630.2(o)(3).
40
See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171 (lOth Cir. 1999) ("In general, the
interactive process must ordinarily begin with the employee providing notice to the employer of
SLC_2569973.4

9

the employee, or formally invoke the magic words 'reasonable accommodation,"' it "nonetheless
must make clear that the employee wants assistance for his or her disability." 41
Specifically, "the employer must know ofboth the disability and the employee's desire.
for accommodations for that disability." 42 An employer's mere awareness of an employee's
physical condition is insufficient to carry a plaintiffs burden of proof that he or she requested an
accommodation or otherwise engaged in the "interactive process" required by the ADA. 43 The
"employee must make an adequate request for a reasonable accommodation for the disability." 44
As stated above, the undisputed evidence establishes that Angel did not tell Lisbon
Valley that he had a disability, nor did he put Lisbon Valley on notice that he had a disability.
'

Angel also never asked for an accommodation. 45 Angel's actions of giving Lisbon Valley his
prescription bottle and a note from the company's occupational physician after he tested positive
for oxycodone did not put Lisbon Valley on notice that he was asking for an accommodation for
a disability.
Even if Angel had notified Lisbon Valley after he tested positive for oxycodone that he
had a disability and needed an accommodation for the disability (which he did not), Angel still
could not prevail on his failure to accommodate claim. Under Tenth Circuit precedent, since
reasonable accommodation is always prospective, Lisbon Valley would not have been required

the employee's disability and any resulting limitations .... "). ·
·
Taylor v. Phoenixville Sch. Dist., 184 F .3d 296, 313 (3rd Cir. 1999) (emphasis added).
42
C.R. England, 644 F.3d at 1049 (quoting Taylor, 184 F.3d at 313).
43
See id. at 1049-50.
·
44
Dinse v. Carlisle Foodservice Products Inc., 541 Fed.App. 885 (lOth Cir. 2013) (unreported)
(citing C.R. England, 644 F.3d at 1049) ("The request for accommodation must be sufficiently
direct and specific, giving notice that [the employee] needs a special accommodation.").
45
Eldredge Decl. ~~ 15, 27; Angel Depo. 101:2-4, 103:5-7.
41

SLC_2569973.4

10

.~

to excuse Angel's violation of the prescription drug policy. Retroactive accommodation for a
disability is not required under the ADA. 46
Based on the foregoing, summary judgment is warranted on Angel's denial of
accommodation claim.

III.

RETALIATION
In order to establish a prima facie case of retaliation under the ADA, an employee must

demonstrate that (1) he engaged in activity protected by the ADA, (2) he was subjected to an
adverse employment action, and (3) a causal connection existed between the protected activity
and the adverse action." 47
A request for a reasonable accommodation for a disability constitutes a protected
activity. 48 But as set forth above, the undisputed evidence shows that Angel did not ask Lisbon
Valley for an accommodation as required by the ADA. Thus, Angel cannot establish the first
element ofhis prima facie case of retaliation.
Angel also cannot establish the third element of his prima facie case. For the reasons
stated above, Angel has not produced any evidence demonstrating a causal connection between

46

Davila v. Qwest Corp., 113 Fed.Appx. 849, 854 (lOth Cir. 2004) (unreported) (citing Hill v.
Kan. City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir. 1999); Burch v. Coca-Cola Co., 119
F.3d 305, 320 n. 14 (5th Cir. 1997) (following Siefken v. Vill. ofArlington Heights, 65 F.3d 664,
666 (7th Cir. 1995)); Office of Senate Sergeant at Arms v. Office of Senate Fair Employment
Practices, 95 F.3d 1102, 1107-08 (Fed. Cir. 1996); Green v. George L. Smith II Ga. World
Congress Ctr. Auth., 987 F.Supp. 1481, 1484-85 (N.D. Ga. 1997)). As the EEOC's Enforcement
Guidance succinctly states, "'[s]ince reasonable accommodation is always prospective, an
employer is not required to excuse past misconduct even if it is the result of the individual's
disability."' Brookins v. Indianapolis Power &Light Co., 90 F. Supp. 2d 993, 1007 (S.D. Ind.
2000) (quoting U.S. Equal Opportunity Employment Comm'n, Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act at
24).
47
Holly v. Kindred Healthcare Operating, Inc., 51 F. Supp. 3d 1113, 1123 (D. Utah 2014).
48
See Soileau v. Guilford ofMaine, Inc., 105 F.3d 12 (1st Cir. 1997).
SLC_2569973.4

11

the tennination of his employment and any protected activity. To the contrary, the undisputed
evidence in the summary judgment record establishes that Angel's employment was terminated
because he failed to comply with Lisbon Valley's prescription dmg policy, and that Lisbon
Valley was not aware that Angel claimed to have a disability until after his employment at
Lisbon Valley had ended. Given that evidence, Angel cannot establish a causal connection
between any protected activity engaged in by him and the loss of his employment. As a result,
Lisbon Valley is entitled to summary judgment on Angel's retaliation claim.
CONCLUSION

Based on the above reasoning, Lisbon Valley's Motion for Summary Judgment is
GRANTED. Because this mling disposes of all of Angel's claims, the Clerk of Court is directed
to enter judgment in favor of Lisbon Valley and close the case.
DATED this~ day of ~;"\( o.., •

'2015.

Approved as to form and content:

Is/ David Holdsworth (signed bv drafting counsel with permission)
David Holdsworth, Attorney for Plaintiff

SLC_2569973.4

12