Collard v. Weir Slurry Group

Filing 33

MEMORANDUM DECISION AND ORDER granting in part and denying in part 16 Motion for Summary Judgment. Signed by Judge David Nuffer on 8/11/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
KAYLEEN COLLARD,
Plaintiff,
v.
WEIR SLURRY GROUP, INC., d/b/a WEIR
MINERALS LINATEX,
Defendant.

MEMORANDUM DECISION AND
ORDER GRANTING IN PART
AND DENYING IN PART
[16] DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Case No. 2:16-cv-00181-DN
District Judge David Nuffer

Kayleen Collard 1 has sued her former employer, Weir Slurry Group, Inc., d/b/a Weir
Minerals Linatex (“Weir”), 2 alleging claims of disability discrimination in violation of the
Americans with Disabilities Act (“ADA”) and gender discrimination under Title VII of the Civil
Rights Act of 1964 (“Title VII”). 3 Ms. Collard worked as a chemist for Weir, a rubber product
design and manufacturing company, for about two and a half years. 4 She claims in this action
that Weir discriminated against her based on her disabilities and also subjected her to hostile
environment sexual harassment. 5 Weir moved for summary judgment to dismiss Collard’s claims

1
Plaintiff is also known as Kayleen Lee and Kayleen Collard Lee according to the record. For purposes of this
Motion, she is referred to as Collard, the surname under which she filed this action.
2

First Amended Complaint (the “Complaint”), filed as part of Exhibit 1 to Defendant’s Notice of Removal at 4–14,
docket no. 2-1, filed March 4, 2016.
3

Three other causes of action—breach of contract, unjust enrichment, and breach of the implied covenant of good
faith and fair dealing—were included in the Complaint, but those claims were dismissed on Weir’s Motion for
Partial Judgment on the Pleadings, which Collard did not oppose. Order Granting Motion for Partial Judgment on
the Pleadings, docket no. 14, filed May 5, 2016.
4

Complaint ¶¶ 8–9.

5

Complaint ¶¶ 32–59.

(the “Motion”). 6 Collard opposed the Motion (“Opposition”), 7 and Weir responded to the
Opposition (“Reply”). 8
Weir makes two general arguments in favor of summary judgment. First, Weir contends
that Collard’s entire Complaint must be dismissed because Collard released Weir from the
claims in a settlement agreement (the “Settlement Agreement”). The Settlement Agreement,
which included a mutual release (the “Release”), resolved a separate state court action by Weir
against Collard for trade secret misappropriation and related claims (the “Trade Secret Action”).
Second, Weir argues in the alternative that Collard’s ADA claim and any disparate treatment
portion of her gender discrimination claim should be dismissed for lack of merit on the
undisputed facts. Weir’s Motion does not attack Collard’s claims for hostile environment sexual
harassment.
The Motion is DENIED IN PART and GRANTED IN PART. The Settlement Agreement
does not apply to Collard’s claims in this action, and therefore the Motion based on release
(which Weir describes as “waiver”) is denied. Partial summary judgment is proper because the
undisputed facts show that Collard was not terminated for ADA discrimination as a matter of
law. The partial summary judgment, however, does not resolve Collard’s claims for hostile
environment sexual harassment.

6

Defendant’s Motion for Summary Judgment, docket no. 16, filed February 3, 2017.

7

Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment (the “Opposition”), Exhibit
A to Errata, docket no. 23-1, filed March 15, 2017. The working draft of the Opposition, docket no. 21, filed on
March 13, 2017, is disregarded. Counsel is cautioned against neglecting motion briefing deadlines imposed by rule
or stipulation.
8
Defendant’s Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment (the “Reply”),
docket no. 24, filed March 27, 2017.

2

Table of Contents
Summary Judgment Standard ......................................................................................................... 3
Undisputed Material Facts .............................................................................................................. 4
The Employment Relationship ........................................................................................... 4
Collard’s Disability and Accommodation Requests ........................................................... 5
Weir’s Discipline of Collard Before Termination .............................................................. 7
Termination for Email Forwarding ..................................................................................... 8
State Court Trade Secret Suit and Settlement Agreement .................................................. 9
Discussion ..................................................................................................................................... 11
Collard Did Not Release Her Discrimination Claims When Settling the Separate Trade
Secret Action. ........................................................................................................ 12
Collard’s ADA Discrimination Claim Fails as a Matter of Law. ..................................... 15
Collard Has Established a Prima Facie Case of Discrimination. .......................... 16
Weir Has Shown Non-discriminatory Reasons for Its Adverse Employment
Actions. ..................................................................................................... 18
Collard Has Not Created a Genuine Issue of Material Fact as to Pretext. ............ 20
Collard’s Sexual Harassment Claim Is Not Dismissed on Summary Judgment. ............. 22
Order ........................................................................................................................................... 25

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 9 “By its very terms, this standard
provides that the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” 10 A factual dispute is genuine when “there is
sufficient evidence on each side so that a rational trier of fact could resolve the issue either
way.” 11 In determining whether there is a genuine dispute as to material fact, the court should
“view the factual record and draw all reasonable inferences therefrom most favorably to the

9

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

10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original).

11

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).

3

nonmovant.” 12 “As to materiality, the substantive law will identify which facts are material.” 13
“Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” 14 “Factual disputes that are irrelevant or
unnecessary will not be counted.” 15
UNDISPUTED MATERIAL FACTS 16
The Employment Relationship
1.

Weir develops, designs, and manufactures rubber-related products and provides

related services. 17
2.

On August 25, 2011, Weir offered Collard a job as a chemist in its Salt Lake City

facility. 18
3.

Collard started her employment with Weir on October 3, 2011. 19

4.

As a chemist, Collard reported to the Engineering Manager/Director. 20

5.

When she started, Collard’s supervisor was David Timm. In the Spring of 2013,

Tham Siew Meng became her supervisor. 21

12

Id.

13

Anderson, 477 U.S. at 248.

14

Id.

15

Id.

16

The following statement of material facts is based on the facts set forth in the Motion and Opposition. Where a
statement of fact is undisputed, it is so indicated and appears verbatim. The remaining facts have been resolved by
comparing the parties’ fact statements to identify undisputed portions of their contentions and by referring to the
exhibits in the record for facts that are not genuinely in dispute. Only those facts which are not genuinely in dispute
may support a summary judgment decision. Adler, 144 F.3d at 670.
17

Motion at 2.

18

Id.

19

Id.

20

Id. Exhibit L (Job Description), docket no. 16-12.

21

Id. at 2.

4

Collard’s Disability and Accommodation Requests
6.

Prior to commencing employment with Weir, Collard informed both Timm and

Human Resources Manager Julene Persinger that she required accommodation for a disability. 22
7.

After conversations with Collard, Weir granted her permission to use a parking

space close to the building until Collard got a parking pass for the designated accessible parking
spot at Weir’s facility. 23
8.

Weir agreed to limit Collard’s work-related travel. 24

9.

Weir made concessions to Collard by excusing her from climbing stairs and

wearing steel-toed shoes as personal protective equipment. 25
10.

Collard was permitted to use a wheelchair at work. 26

11.

Collard made a formal accommodation request in the spring of 2012, which set

forth several proposed accommodations. 27
12.

In that accommodation request, Collard identified her conditions as “[d]isabling

nausea with cyclic vomiting syndrome, recurrent hiatal hernia, open thoracic surgery recovery—
nissen fundopolication with infection, generalized anxiety disorder and dysautonomia.” 28
13.

Collard claimed that these conditions resulted in her experiencing “some

balance/coordination difficulties, weakness, violent nausea, pain, and fatigue.” She also asserted
that these conditions limited her mobility and caused her to limp, walk slowly, or use a

22

Motion at 8, Failure to Accommodate under the ADA ¶ 1; Opposition at 10 (undisputed).

23

Motion at 8, Failure to Accommodate under the ADA ¶ 2; Opposition at 10–11.

24

Motion at 8, Failure to Accommodate under the ADA ¶¶ 3–4; Opposition at 11.

25

Motion, Exhibit D at 184–86, docket no. 16-4.

26

Motion at 9, Failure to Accommodate under the ADA ¶ 15; Opposition at 15.

27

Motion at 10, Failure to Accommodate under the ADA ¶ 18, Exhibit K (Request for Disability Accommodation
Form), docket no. 16-11; Opposition at 16.

28

Motion at 10, Failure to Accommodate under the ADA ¶ 19; Opposition at 16 (undisputed).

5

wheelchair. Finally, Collard explained that her symptoms were cyclical, and thus “the severity of
these symptoms can vary from day to day.” 29
14.

Collard requested the following accommodations:
a. Help from one other person to lift and open press molds;
b. Help from one other person to cut rubber;
c. Extra time for moving about the facility;
d. Limit on travel to U.S. flights of no more than four hours;
e. Parking on a flat area or help from one person to enter the facility;
f. Limit work hours to 40 per week; and
g. Flexible onsite attendance or remote access when severely sick. 30

15.

Weir’s personnel reviewed Collard’s request and determined that some

accommodations, like the limit on travel, were already in place, and others, like flexible onsite
attendance, were unreasonable. 31
16.

In the fall of 2013, Human Resources Manager Persinger asked Collard to

resubmit an updated accommodation request.” 32
17.

The proposed accommodations presented by Collard in 2013 were substantially

the same as her spring 2012 requests. 33

29

Motion at 10, Failure to Accommodate under the ADA ¶ 20; Opposition at 16 (undisputed).

30

Motion, Exhibit K, docket no. 16-11.

31

Motion at 10–11, Failure to Accommodate under the ADA ¶¶ 21–23; Opposition at 17.

32

Motion at 11, Failure to Accommodate under the ADA ¶ 24; Opposition at 17 (undisputed).

33

Motion at 11, Failure to Accommodate under the ADA ¶ 26; Opposition at 18 (undisputed).

6

18.

On that basis, Weir determined that no new accommodations for Collard’s

disabilities were necessary. 34
Weir’s Discipline of Collard Before Termination
19.

Collard received a written admonition for using her wheelchair to store and

transport rubber, which Weir deemed “not an appropriate or safe use of [her] personal
wheelchair.” 35
20.

Weir issued a written admonition to Collard on December 30, 2013, warning her

“regarding dishonesty and misuse of company email.” 36
21.

Weir made the decision to issue the written admonition based on the conclusion 37

that Collard forwarded an email with some past-due work product attached on December 2, 2013
after manipulating the email to appear as if it were originally sent earlier than it was. 38
22.

In February 2014, Collard was placed on paid administrative leave for

insubordination. 39
23.

Weir made the decision to put Collard on administrative leave after determining 40

that Collard was insubordinate to her supervisor, Tham Meng, in an incident where Meng

34

Motion at 11, Failure to Accommodate under the ADA ¶ 27, Exhibit K, Julene Persinger Deposition, at 61–66,
docket no. 18-11.

35

Motion, Exhibit R (Verbal Admonition dated December 19, 2013), docket no. 18-18.

36

Motion, Exhibit N (Written Admonition dated December 30, 2013), docket no. 18-14.

37

Collard denies that she acted dishonestly or falsified email. Opposition at 21. However, Weir’s intent—rather than
Collard’s true actions—is the material fact for purposes of this claim. Anderson, 477 U.S. at 248.
38

Motion at 12–14, Disparate Treatment Discrimination under the ADA and Title VII ¶¶ 1–7, Exhibit N (Written
Admonition), docket no. 18-14.

39

Motion at 14, Disparate Treatment Discrimination under the ADA and Title VII ¶¶ 8–9; Opposition at 33–34.

40

Collard denies that she was insubordinate to Meng. Opposition at 23. However, Weir’s intent—rather than
Collard’s actual actions—is the material fact for purposes of this claim. Anderson, 477 U.S. at 248.

7

requested information that Collard could not provide within the time he wanted, and the two of
them argued. 41
Termination for Email Forwarding
24.

On Monday, March 10, 2016, Weir sent Collard a letter officially terminating her

employment. 42
25.

Weir made the decision to terminate Collard after determining 43 that Collard

violated the company Confidentiality Agreement and employee policies, as well as concerns that
she may have misappropriated confidential information and trade secrets. 44
26.

Prior to her termination, Collard conceded that she had set up preferences on her

company email to forward emails to her personal email account, although she denied being
aware that her conduct violated company policy. 45
27.

Persinger advised Collard of the findings of the internal investigation [into

Collard’s email use] and asked her to make available to a third party expert all of her personal
technology devices (computer, smart phones, hard drives, USB flash drives, etc.) and email
accounts, so that any intellectual property belonging to Weir could be retrieved and returned to
Weir. 46

41

Motion at 14, Disparate Treatment Discrimination under the ADA and Title VII ¶¶ 8–9; Opposition at 33–34.

42
Motion at 17, Disparate Treatment Discrimination under the ADA and Title VII ¶ 27; Opposition at 28
(undisputed).
43

Collard denies that she violated any company policies or misappropriated trade secrets. However, Weir’s intent—
rather than Collard’s actual actions—is the relevant fact for purposes of this claim. Anderson, 477 U.S. at 248.
44

Motion at 17, Disparate Treatment Discrimination under the ADA and Title VII ¶ 28; Opposition at 28.

45

Motion at 16, Disparate Treatment Discrimination under the ADA and Title VII ¶ 20; Opposition at 26
(undisputed).
46
Motion at 17, Disparate Treatment Discrimination under the ADA and Title VII ¶ 22; Opposition at 27
(undisputed).

8

28.

Collard was advised that if she refused to comply with this request Weir planned

to file a lawsuit against her. 47
State Court Trade Secret Suit and Settlement Agreement
29.

On March 7, 2014, Weir filed a Verified Complaint in Utah state court (“Trade

Secret Complaint”) in which it sought a temporary restraining order and injunctive relief against
Collard. 48
30.

The Trade Secret Complaint asserted causes of action against Collard for Breach

of Contract, Misappropriation of Trade Secrets, Breach of Duty of Loyalty, and Violation of the
Computer Fraud and Abuse Act, 18 U.S.C. § 1030. 49
31.

Following the termination of Collard’s employment, and after litigating the State

Court Lawsuit for over a year, the parties entered into a Settlement Agreement and Mutual
Release of Claims (“Settlement Agreement”) 50 “to avoid the expense and uncertainty of further
litigation.” 51
32.

Collard signed the Settlement Agreement on June 24, 2015. 52

33.

At the time that she signed the Settlement Agreement, she had read the Settlement

Agreement, understood it, and agreed to it. 53

47

Motion at 17, Disparate Treatment Discrimination under the ADA and Title VII ¶ 23; Opposition at 27
(undisputed).
48

Motion at 3; Weir Slurry Group v. Kayleen Lee, Verified Complaint, Motion, Exhibit B, docket no. 16-2.

49

Trade Secret Complaint.

50

Settlement Agreement and Release of Claims, Motion, Exhibit A, docket no. 16-1.

51

Motion at 6, Waiver ¶ 1; Opposition at 7 (disputing in part but asserting no basis for a dispute).

52

Motion at 7, Waiver ¶ 13; Opposition at 9 (undisputed).

53

Motion at 7, Waiver ¶ 14; Opposition at 9–10 (undisputed).

9

34.

The settlement negotiations involved back and forth discussions and revisions

between Collard’s attorneys and Weir’s attorneys. 54
35.

Collard had the opportunity to confer with her counsel concerning the negotiation

of the Settlement Agreement. 55
36.

As part of the Settlement Agreement, Collard entered into a mutual release of

claims that provided, with respect to her claims against Weir, as follows:
[Collard], and her successors and assigns, forever releases Weir and its
shareholders, members, principals, officers, managers, agents, attorneys, servants,
employees, administrators, executors, insurers, successors, or assigns, from any
and all claims, demands, or causes of action, at law or in equity, whether known
or unknown, which [Collard] has asserted or could have asserted in the Lawsuit,
including but not limited to claims for costs and attorney fees. This mutual release
does not apply to the Discrimination Charge and UOSH Complaint, which are
claims that [Collard] may continue to pursue. 56
37.

The mutual release of claims also provided for Weir’s release of claims in favor

of Collard. 57
38.

Weir also agreed, as part of the Settlement Agreement, to dismiss all remaining

claims in the State Court Lawsuit with prejudice by filing an Order of Dismissal. 58
39.

Through counsel, Collard negotiated two exceptions to the general release;

namely, that Collard’s general release did not apply to “the Discrimination Charge and the
UOSH Complaint, which are claims that [Collard] may continue to pursue.” 59

54

Motion at 7, Waiver ¶ 7; Opposition at 8 (undisputed).

55

Motion at 7, Waiver ¶ 9; Opposition at 8 (undisputed).

56

Motion at 6, Waiver ¶ 2 (quoting Settlement Agreement ¶ 5); Opposition at 7 (undisputed).

57

Motion at 6, Waiver ¶ 3; Opposition at 8 (undisputed).

58

Motion at 6, Waiver ¶ 4; Opposition at 8 (undisputed).

59

Motion at 7, Waiver ¶ 11 (citing Settlement Agreement ¶ 5); Opposition at 9 (undisputed).

10

40.

“Discrimination Charge” is a defined term based on the following provision of the

Settlement Agreement: “[Collard] has also filed a Charge of Discrimination against Weir, which
is currently pending before the Equal Employment Opportunity Commission and Utah Antidiscrimination and Labor Division (the ‘Discrimination Charge’).” 60
41.

“UOSH Complaint” is also defined in the Settlement Agreement: “[Collard] has

also filed a complaint against Weir with the Utah Occupational Safety and Health Division (the
‘UOSH Complaint’).” 61
DISCUSSION
Federal law provides certain protections against discrimination in the workplace. Two
such protections are at issue in this case. First, the ADA outlaws discrimination against persons
with disabilities.62 Second, Title VII outlaws discrimination on the basis of gender, which has
been interpreted to include sexual harassment. 63
Collard claims that, while working for Weir as a chemist, she faced discrimination for her
disabilities, as well as sexual harassment. 64 Weir argues that Collard released her discrimination
claims under a Settlement Agreement in a separate lawsuit, which included a mutual Release. 65
This argument is rejected because the terms of the Release do not apply to Collard’s
discrimination claims. In the alternative, Weir seeks partial summary judgment on “Collard’s
entire ADA claim and the disparate treatment portion [sic] of her Title VII claim.” 66 The

60

Settlement Agreement, Recital D.

61

Id.

62

42 U.S.C. § 12112.

63

42 U.S.C. § 2000e-2; Meritor Sav. Bank, FSH v. Vinson, 477 U.S. 57, 65–67 (1986).

64

Complaint ¶¶ 35–62.

65

Motion at 19–25.

66

Motion at 1.

11

undisputed material facts show that Collard’s termination did not violate the ADA. Collard’s
sexual harassment claim is not based on disparate treatment but is a hostile environment claim,
so Weir’s summary judgment argument on that claim is rejected. Because Collard’s hostile
environment claim is not challenged by the Motion, her sexual harassment claim survives
summary judgment.
Collard Did Not Release Her Discrimination Claims
When Settling the Separate Trade Secret Action.
Weir and Collard have had other disputes that have been resolved outside of this action.
Weir accused Collard of trade secret misappropriation because Collard allegedly set her work
email account to forward messages with confidential and proprietary material to her personal
email account. 67 Weir sued Collard in Utah state court, asserting claims for Breach of Contract,
Misappropriation of Trade Secrets, Breach of Duty of Loyalty, and Violation of the Computer
Fraud and Abuse Act, 18 U.S.C. § 1030. 68 The Trade Secret Action was resolved by a Settlement
Agreement between the parties. 69 Under the Settlement Agreement, Collard agreed to return all
confidential and proprietary information in her possession to Weir and stipulated to a permanent
injunction restraining her from using or disclosing any of Weir’s protected information. 70
Weir argues that the Release in the Settlement Agreement applies broadly enough to bar
Collard’s discrimination claims in this federal action. The Release provides: “[Collard], and her
successors and assigns, forever releases Weir and [related entities], from any and all claims,
demands, or causes of action, at law or in equity, whether known or unknown, which [Collard]
has asserted or could have asserted in the Lawsuit, including but not limited to claims for costs
67

Trade Secret Complaint ¶¶ 16–17.

68

Trade Secret Complaint ¶¶ 23–54.

69

Settlement Agreement, docket no. 16-1.

70

Id. ¶ 3.

12

and attorney fees.” 71 The Release uses broad terms such as “any and all claims” and “known or
unknown,” but limits the Release to claims which Collard “has asserted or could have asserted in
the Lawsuit.” 72 “Lawsuit” is defined as the Trade Secret Action in state court. 73
The Settlement Agreement addresses Collard’s claims against Weir for discrimination by
excepting those claims from the Release: “This mutual release does not apply to the
Discrimination Charge and UOSH Complaint, which are claims that [Collard] may continue to
pursue.” 74 The Discrimination Charge and the UOSH Complaint are both defined terms.
“Discrimination Charge” is defined in the following recital in the Settlement Agreement:
“[Collard] has also filed a Charge of Discrimination against Weir, which is currently pending
before the Equal Employment Opportunity Commission and Utah Anti-discrimination and Labor
Division (the ‘Discrimination Charge’).” 75 “UOSH Complaint” is defined in the recitals as well:
“[Collard] has also filed a complaint against Weir with the Utah Occupational Safety and Health
Division (the ‘UOSH Complaint’).” 76
Collard argues that she did not intend to release her discrimination claims or limit them to
state administrative proceedings with this Release. 77 Weir argues that the exception to the
Release applies only to the specifically named administrative actions, and that Collard’s
discrimination claims are otherwise subject to the Release. 78

71

Id. ¶ 5.

72

Id.

73

Id. Recital A.

74

Id. ¶ 5.

75

Id., Recital D.

76

Id.

77

Opposition at 47–50.

78

Motion at 19–22.

13

“The interpretation of an unambiguous contract is a question of law to be determined by
the court, and may be decided on summary judgment.” 79 The unambiguous terms of the
Settlement Agreement provide that Collard’s discrimination claims are not waived in the
Release.
The scope of the Release is narrower than the release analyzed in the Seventh Circuit
decision cited by Weir, 80 Riley v. American Family Mutual Insurance Co. 81 The release in Riley
was for claims “relating in any way to [the plaintiff’s] employment,” and included a limited
exception “to pursue and appeal her administrative claim” that was “now pending.” 82 The
Settlement Agreement between Collard and Weir was not drafted to apply to the entire scope of
Collard’s employment with Weir. The primary clause of the Release applies to claims that were
asserted or could have been asserted in the Trade Secret Action. 83 Nothing in the record indicates
that Collard’s discrimination claims were or could have been 84 asserted in the Trade Secret
Action.
Even assuming that Collard’s discrimination claims could have been asserted in the Trade
Secret Action by permissive counterclaim, the Release specifically excepts Collard’s
discrimination charge and complaint against Weir. 85 Even though the exception to the Release
identifies the forums in which Collard was then pursuing the discrimination claims, it excepts the
two discrimination claims from the Release and not merely the state agency actions. Indeed,

79

Pub. Serv. Co. of Okla. v. Burlington N. R. Co., 53 F.3d 1090, 1096 (10th Cir. 1995) (internal citations omitted).

80

Motion at 20.

81

881 F.2d 368, 373 (7th Cir. 1989).

82

Id.

83

Settlement Agreement ¶ 5.

84

Because the claims were pending in administrative proceedings, they were not ripe for litigation.

85

Id.

14

claims and complaints filed with these state agencies ripen into lawsuits, as has occurred here. 86
The Release does not bar Collard’s claims.
Collard’s ADA Discrimination Claim Fails as a Matter of Law.
Weir seeks partial summary judgment on Collard’s discrimination claims in the
alternative to a complete dismissal under the Release. 87 The undisputed facts support summary
judgment on the ADA discrimination claim.
As Collard acknowledges, her ADA discrimination claim is based on circumstantial
evidence, 88 which is not unusual given that “[t]here will seldom be eyewitness testimony as to
the employer’s mental processes.” 89 Under the burden-shifting framework for analyzing
discrimination claims based upon circumstantial evidence set forth by the Supreme Court in
McDonnell-Douglas Corp. v. Green, 90 the Tenth Circuit engages in a three-step analysis: (1)
first, the plaintiff must establish a prima facie case of discrimination or retaliation; (2) if the
plaintiff satisfies this initial burden, the defendant employer must offer a legitimate nondiscriminatory reason for the adverse employment action; and (3) the burden then shifts back to
the plaintiff who 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. 91

86

Complaint ¶ 5 (asserting that Collard received a right to sue letter on or about October 5, 2015 for the
Discrimination Charge and the UOSH Complaint).
87

Motion at 1.

88

Opposition at 50.

89

U.S. Post Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983).

90

411 U.S. 792 (1973).

91

Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017).

15

Collard Has Established a Prima Facie Case of Discrimination.
Collard has asserted a single claim under the ADA for discrimination but has applied
several labels to her multi-faceted claim. Collard alleges discrimination for Weir’s failure to
accommodate known disabilities. 92 She claims retaliation by Weir for terminating her in
response to a protected activity. 93 And she alleges discrimination by Weir for “making disability
related inquiries of [her] as to whether [she] is an individual with a disability [which is
prohibited] unless such examination or inquiry is shown to be job-related and consistent with
business necessity.” 94
These separate facets of Collard’s ADA discrimination claim do not change the legal
analysis. Failure to accommodate known disabilities and making disability-related inquiries are
both forms of discrimination. 95 However, Collard has not shown that she suffered any distinct
harm from the different forms of discrimination on which to base a separate claim. Collard
shows no factual connection between failure to accommodate and any adverse employment
actions. 96 She contends that she was admonished for using her wheelchair to transport rubber,
which her supervisors deemed unsafe, but did not explain how that admonition arose out of a
failure to accommodate. 97 Nor has Collard provided facts or developed argument that she
suffered medical inquiry discrimination. 98

92

Complaint ¶¶ 41–42.

93

Id. ¶ 44.

94

Id. ¶ 43 (citing 42 U.S.C. § 12112(b)(6) and § 12112(d)(4)(A)) (emphasis added).

95

42 U.S.C. §§ 12112(b)(5)(A), 12112(d).

96

Opposition at 30–31.

97

Id.

98

Complaint ¶ 46 (not addressed in Opposition).

16

Similarly, Collard’s retaliation claim need not be analyzed separately from her
discrimination claim. ADA retaliation differs from ADA discrimination. Retaliation is shown by
adverse actions against an employee for her efforts to enforce ADA rights while discrimination is
shown by adverse actions for the disability itself. 99 The Tenth Circuit treats retaliation claims
and discrimination claims the same if the adverse employment action is the same. 100 The
distinction between discrimination and retaliation makes no difference here, where Collard’s
disability is not in dispute, 101 and where all of the adverse employment actions alleged—a
written admonition, paid administrative leave, and termination—relate to the discrimination
claim. 102 Accordingly, Collard’s retaliation and discrimination claims are analyzed as one.
To establish a prima facie case for discrimination under the ADA, a plaintiff must show
that she “(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.” 103
Collard has established a prima facie case for discrimination under these elements. First, she is a
disabled person as defined by the ADA. Her medical conditions cause balance and coordination
difficulties, weakness, violent nausea, pain, and fatigue, 104 which interfere with major life
activities. 105 Collard was qualified to perform the essential functions of the chemist position she

99

Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1186 (10th Cir. 2016).

100

Id. at 1186–87.

101

Motion at 8, Failure to Accommodate under the ADA ¶ 1; Opposition at 10 (undisputed).

102

Opposition at 50–56.

103

Dewitt, 845 F.3d at 1308 (quoting E.E.O.C. v. C.R. Eng., Inc., 644 3d 1028, 1037–38 (10th Cir. 2011)).

104

Motion at 10, Failure to Accommodate under the ADA ¶ 20; Opposition at 16 (undisputed).

105

42 U.S.C. § 12102(1) (defining disability under the ADA).

17

held with Weir. She was hired for her qualifications, 106 which include a bachelor’s degree in
chemical engineering and a minor in chemistry from the University of Utah. 107 Third, Collard
has shown a prima facie case for discrimination. She received a written warning, was put on
administrative leave, and was terminated, which she contends were because of her disability. 108
Because Collard has shown a prima facie case of ADA discrimination, further inquiry is
required into whether Weir had non-discriminatory reasons for its adverse employment
actions. 109
Weir Has Shown Non-discriminatory Reasons for Its Adverse Employment Actions.
Even though Collard has satisfied her initial burden to prove a prima facie case of
discrimination, Weir has shown non-discriminatory reasons for each of the adverse employment
actions it took against Collard. Collard alleges three adverse employment actions that Weir took
against her: written admonition, paid administrative leave, and termination.
The written admonition was not issued because of Collard’s disability. Weir concluded
that Collard manipulated an email to her supervisor to appear as if it were originally sent earlier
than it was. 110 The written admonition Weir issued to Collard on December 30, 2013, concerned
this incident. It warned her “regarding dishonesty and misuse of company email,” which Collard
has not shown relates to her disability. 111

106

Motion at 2.

107

Motion at 7, Waiver ¶ 16; Opposition at 10 (undisputed).

108

Complaint ¶¶ 35–49.

109

Dewitt, 845 F.3d at 1308 (citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973)).

110

Motion at 12–14, Disparate Treatment Discrimination under the ADA and Title VII ¶¶ 1–7, Exhibit N (Written
Admonition), docket no. 18-14.

111

Motion at 12–14, Disparate Treatment Discrimination under the ADA and Title VII ¶¶ 1–7, Exhibit N (Written
Admonition), docket no. 18-14.

18

The paid administrative leave was not imposed because of Collard’s disability. Collard
was placed on paid administrative in February 2014, following an incident where Collard’s
supervisor, Meng, requested information that Collard could not provide within the time he
wanted, and the two of them argued. 112 Weir decided to put Collard on administrative leave after
determining that Collard was insubordinate to her supervisor in that incident. 113 Collard has not
shown that the leave relates to her disability.
Collard’s termination likewise was not for her disability. Weir terminated Collard on
March 10, 2016. 114 Weir terminated Collard after determining that Collard violated the company
Confidentiality Agreement and employee policies, as well as concerns that she may have
misappropriated confidential information and trade secrets. 115 Prior to her termination, Collard
conceded that she had set up preferences on her company email to forward emails to her personal
email account, although she denied being aware that her conduct violated company policy. 116
Weir conducted an internal investigation into Collard’s email use and then advised Collard of the
findings. 117 Weir threatened suit against Collard if she did not make her personal technology
devices available to a third party expert so that any intellectual property belonging to Weir could
be retrieved and returned to Weir. 118 This conflict resulted in the Trade Secret Action. 119 Collard

112

Motion at 14, Disparate Treatment Discrimination under the ADA and Title VII ¶¶ 8–9; Opposition at 33–34.

113

Id.

114

Motion at 17, Disparate Treatment Discrimination under the ADA and Title VII ¶ 27; Opposition at 28
(undisputed).

115

Motion at 17, Disparate Treatment Discrimination under the ADA and Title VII ¶ 28; Opposition at 28.

116

Motion at 16, Disparate Treatment Discrimination under the ADA and Title VII ¶ 20; Opposition at 26
(undisputed).
117

Motion at 17, Disparate Treatment Discrimination under the ADA and Title VII ¶ 22; Opposition at 27
(undisputed).
118

Motion at 17, Disparate Treatment Discrimination under the ADA and Title VII ¶ 23; Opposition at 27
(undisputed).
119

Trade Secret Complaint, docket no. 16-2.

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has not shown that the allegations of email misuse and potential trade secret violations relate to
her disability.
In each incidence of adverse action against Collard, the record shows that Weir was
motivated by a non-discriminatory reason for the action. Therefore, further inquiry is required
into whether the non-discriminatory reasons offered by Weir were pretext for discrimination.
Collard Has Not Created a Genuine Issue of Material Fact as to Pretext.
Collard argues that the non-discriminatory reasons for Weir’s adverse employment
actions are pretextual. 120 “The pretext prong of that framework permits a plaintiff employee to
raise a triable inference that the stated reasons for the adverse action underlying an employer’s
ostensibly honest belief are a pretext for discrimination.” 121 Whether a reason for adverse
employment action is a pretext is a different issue from whether the adverse employment action
was correct. As the Tenth Circuit has explained, the courts’ “role isn’t to ask whether the
employer’s decision was wise, fair or correct, but whether it honestly believed the legitimate,
nondiscriminatory reasons it gave for its conduct and acted in good faith on those beliefs.” 122
“Evidence that the employer should not have made the termination decision—for example, that
the employer was mistaken or used poor business judgment—is not sufficient to show that the
employer’s explanation is unworthy of credibility.” 123 In other words, it is not necessary to
validate the factual basis of Weir’s actions and decisions to conclude that those actions and
decisions were not a pretext for discrimination.

120

Opposition at 53–56.

121

Dewitt, 845 F.3d at 1311.

122

Id. at 1307 (internal quotations and citations omitted).

123

Id. (citing Simmons v. Sykes Enters., Inc., 647 F.3d 943, 948 (10th Cir. 2011)).

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The tools available to an employee to expose her employer’s stated reason as a pretext
include showing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions”
in the employer’s stated reason for terminating the employee. 124 An employee may also show
disparate treatment, “demonstrating that the employer treated employees similarly situated to the
plaintiff employee differently,” to discredit a pretext. 125
Collard has not shown that Weir’s stated reasons for its adverse employment actions were
pretext. Collard’s explanation for terminating Collard is not implausible, contradictory, or
inconsistent. Even though Collard disputes that she violated company policy, she does not
dispute that she set her work email to forward to a personal account. 126 Collard and Weir
litigated for almost a year over whether Collard’s actions constituted trade secret
misappropriation or related claims. 127 Similarly, the record supports Weir’s explanation for the
written admonition. Weir’s claim that Collard manipulated an email to her supervisor to appear
as if it were originally sent earlier is not implausible. 128 Nor is Weir’s explanation that Collard
was put on administrative leave for insubordination in the course of an argument with her
supervisor. 129 Collard shows no weakness in these explanations and advances no plausible theory
of her own as to how her termination, administrative leave, or written admonitions were causally
linked, in whole or in part, to her disability.

124

Id. at 1311.

125

Id.

126
Motion at 16, Disparate Treatment Discrimination under the ADA and Title VII ¶ 20; Opposition at 26
(undisputed).
127

Motion at 6, Waiver ¶ 1; Opposition at 7 (disputing in part but asserting no basis for a dispute).

128

Motion at 12–14, Disparate Treatment Discrimination under the ADA and Title VII ¶¶ 1–7, Exhibit N (Written
Admonition), docket no. 18-14.

129

Motion at 14, Disparate Treatment Discrimination under the ADA and Title VII ¶¶ 8–9; Opposition at 33–34.

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Collard attempts to demonstrate that Weir treated a similarly situated employee
differently from Collard as proof of pretext. She contends that James Fowles committed similar
acts of misconduct but was not disciplined. 130 However, the record shows that Fowles’
experience at Weir is distinguishable from Collard’s. 131 Unlike Collard, Fowles used personal
email accounts so that he could communicate directly with an internal group of employees as
required. 132 Unlike Collard, Fowles had limited permission to send data from his personal email
account. 133 And unlike Collard, Fowles had a practice of deleting the information once he was
finished. 134 The allegations against Collard are too dissimilar from Fowles’ account to
demonstrate that Weir’s treatment of Collard was a pretext for discrimination.
Each prong of the McDonnell-Douglas analysis supports dismissing Collard’s claim for
ADA discrimination. Therefore, partial summary judgment in favor of Weir on the ADA
discrimination claim is granted.
Collard’s Sexual Harassment Claim Is Not Dismissed on Summary Judgment.
Federal law protects against sexual harassment in its multiple forms. Collard has asserted
a claim for hostile environment sexual harassment under Title VII. 135 Working conditions can
amount to harassment—even without a quid pro quo demand for sexual favors by a superior
employee—if the conditions are severely or pervasively imbued with unwelcome sexual
conduct. 136 To prove a claim for hostile environment harassment, a plaintiff must show: (1) she

130

Opposition at 35–36.

131

Reply at 8–9; Opposition, Exhibit 5 (James Fowles Deposition Transcript, October 18, 2016 (“Fowles Dep.”)),
docket no. 22-5.
132

Fowles Dep. at 40:10–41:23.

133

Id.

134

Id.

135

Complaint ¶¶ 50–62.

136

Meritor, 477 U.S. at 65–67.

22

is a member of a protected class; (2) the conduct in question was unwelcome; (3) the harassment
was based on sex; (4) the harassment was sufficiently severe or pervasive to create an abusive
working environment; and (5) there is a basis for imputing liability to the employer. 137
Collard sets forth in the Opposition details of her alleged sexual harassment that are in
the record. 138 She alleges that multiple coworkers called her derogatory and sexually demeaning
names, extended unwanted sexual advances, and made obscene comments to her. 139 Collard
alleges, for example, that a coworker told Collard that he wanted to perform abusive sexual acts
on her. 140 He then walked around her while licking his lips and smiling at her. 141 Collard
repeatedly rejected the sexual conduct by her co-workers. 142 She also reported the incidents as
unwanted sexual conduct to her supervisor, Meng, and to the human resources manager,
Persinger. 143 Collard alleges that Meng and Persinger refused to report or address the sexual
conduct. 144 These statements were not disputed in Weir’s Reply. 145 Collard’s allegations create
at least a dispute of fact on the elements of Collard’s sexual harassment claim, including whether
the harassment was sufficiently severe or pervasive to be actionable and whether a basis exists
for imposing liability on Weir. 146

137

Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007).

138

Opposition at 41–44.

139

Id.

140

Id. at 41.

141

Id.

142

Id. at 41, 44.

143

Id. at 42–44.

144

Id.

145

Reply.

146

Harsco, 475 F.3d at 1186.

23

The factual basis for Collard’s sexual harassment claim is not material to the Motion,
however, 147 because the sexual harassment claim has not been challenged in Weir’s motion for
partial summary judgment. Other than Weir’s argument that Collard waived any claim in court
against Weir under the Release in the Settlement Agreement for the Trade Secret Action, 148 Weir
has not sought dismissal of the sexual harassment claim on summary judgment. 149
The Motion does seek partial summary judgment only on “the disparate treatment portion
of [Collard’s] Title VII claim. 150 Weir argues in the Motion that “Title VII sex discrimination
claims are subject to the same pretext analysis as claims arising under the ADA.” 151 In other
words, Weir contends Collard was fired for email forwarding and not on the basis of sex
discrimination. 152 Weir misstates Collard’s claim, so Weir’s argument is misdirected. Collard has
not claimed that her termination was based on sex discrimination. Rather, Collard alleges in the
Complaint that during her employment with Weir, her co-workers engaged in discriminatory
intimidation, ridicule, insult, and offensive behavior toward her. 153 Were Collard to contend that
she was terminated on the basis of gender discrimination, that claim would be outside her
Complaint, so that contention would be rejected and would not be tried.
Collard retains her hostile environment sexual harassment claim, the damages for which
are not related to her termination of employment from Weir.

147

Anderson, 477 U.S. at 248.

148

Supra at 11–14.

149

Motion at 1.

150

Id.

151

Id. at 30–31.

152

Id.

153

Complaint ¶¶ 49–55; Opposition at 41–44.

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ORDER
THEREFORE, IT IS HEREBY ORDERED that the Motion 154 is GRANTED IN PART
and DENIED IN PART.
•

Summary judgment on the basis of release of all of Collard’s claims 155 is DENIED.

•

Partial summary judgment is GRANTED in favor of Weir. Collard’s First Cause of
Action for Violation of the ADA 156 is DISMISSED.

•

Collard’s Second Cause of Action for Gender Discrimination in Violation of Title VII
(Sexual Harassment) 157 is not affected by this Order.

Dated August 11, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

154

Docket no. 16.

155

Id. at 19–25.

156

Complaint ¶¶ 35–49.

157

Id. ¶¶ 50–62.

25