# Kierl-Allen v. Salvation Army Arkansas Oklahoma Division

> District Court, W.D. Oklahoma · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10389178

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10389178

## How later opinions describe it (automated extraction)

- applying the same elements of prima facie case to Title VII and ADA retaliation claims
- stating the employer must not only show that it was unaware of the misconduct at the time it terminated the employee, but that the misconduct was “serious enough to justify discharge” and that it would have discharged the employee had it known about the misconduct

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

THERESE M. KIERL-ALLEN, )
)
Plaintiff, )
v. ) Case No. CIV-18-1140-D
)
THE SALVATION ARMY )
ARKANSAS/OKLAHOMA DIVISION, )
)
Defendant. )

ORDER
Before the Court are cross-motions for summary judgment filed by Defendant, the
Salvation Army Arkansas/Oklahoma Division (TSA), [Doc. No. 56] and Plaintiff Therese
M. Kierl-Allen [Doc. No. 55]. Both motions are fully briefed and at issue. See Pl.’s Resp.
Br. [Doc. No. 63]; Def.’s Reply Br. [Doc. No. 66]. See also Def.’s Resp. Br. [Doc. No. 62];
Pl.’s Reply Br. [Doc. No. 67].1
Plaintiff was an employee of TSA for four years. She was terminated from
employment on November 10, 2017. TSA asserts that Plaintiff’s termination was due to
her violation of the Fair Labor Standards Act (FLSA) and the “accumulation of ongoing
performance deficiencies.” Plaintiff alleges she was discriminated against because of her
disability or her son’s disabilities and that TSA unlawfully retaliated against her for
submitting a written complaint of disability and gender discrimination. Her claims arise

1 Also before the Court is Plaintiff’s Motion for Leave to File Sur-Reply in Opposition to
Defendant’s Motion for Summary Judgment [Doc. No. 68]. Defendant responded in opposition
[Doc. No. 69], to which Plaintiff replied [Doc. No. 70]. The Court finds that a sur-reply is
unnecessary. As such, that Motion [Doc. No. 68] is DENIED.
under federal and state civil rights statutes, specifically the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 as amended

(Title VII), 42 U.S.C. § 2000e et seq., and the Oklahoma Anti-Discrimination Act
(OADA), Okla. Stat. tit. 25, §§ 1101 et seq.
STANDARD
Summary judgment is proper “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.” FED. R.
CIV. P. 56(a). A material fact is one that “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine if the facts and evidence are such that a reasonable juror could return a verdict for
either party. Id. All facts and reasonable inferences must be viewed in the light most

favorable to the nonmovant. Id.
A movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). If the movant carries this burden, the nonmovant must then go beyond
the pleadings and “set forth specific facts” that would be admissible in evidence and that

show a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324.
“To accomplish this, the facts must be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 671 (10th Cir. 1998); see FED. R. CIV. P. 56(c)(1)(A).
“Cross-motions for summary judgment are treated as two individual motions for
summary judgment and held to the same standard, with each motion viewed in the light
most favorable to its nonmoving party.” Banner Bank v. First Am. Title Ins. Co., 916 F.3d

1323, 1326 (10th Cir. 2019). When the parties file cross motions for summary judgment,
the Court is entitled to assume “‘no evidence needs to be considered other than that filed
by the parties.’” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,
1148 (10th Cir. 2000) (citation omitted).
FACTUAL BACKGROUND
Plaintiff began employment with TSA in August 2013 as a Divisional Human

Resources Manager at TSA’s Arkansas-Oklahoma Divisional Headquarters in Oklahoma
City. She has been a human resources professional since 1988 and has multiple
professional human resources certifications. Plaintiff considers herself a seasoned human
resources professional ranking in the upper echelon of human resources professionals in
Oklahoma City. As such, she is familiar with the interactive process of the ADA and

understands what it requires.
Employees at TSA are managed by clergy members called officers, who have
primary disciplinary authority over the employees under their command. For most of
Plaintiff’s time at TSA, her direct supervisor was Major Janice Riefer. Plaintiff’s
supervisor for the final five months of her employment was Major Thomas McWilliams.

Plaintiff also had subordinate employees. When Plaintiff started at TSA, she requested
flexibility on her start time to attend to the needs of her son who has ADHD and Tourette
Syndrome. Around May 2017, Plaintiff informed Riefer that she was seeing a counselor
for depression.
As a Human Resources Director, Plaintiff’s job responsibilities included
implementing and interpreting TSA’s policies within the division. In early 2017, TSA

commenced a project to complete the transition of its payroll program to a payroll system
provided by Ceridian, a human resources software company. TSA appointed Plaintiff as
the Team Lead for the human resources side of the transition. This meant she was required
to work closely with the finance department. The arraignment turned out to be problematic
because Plaintiff had pre-existing interpersonal conflicts with employees in the finance
department. Those conflicts continued, and they threatened the progress of the Ceridian

project.
Plaintiff admits she felt overwhelmed by the complexities of implementing the
transition to the Ceridian system; she attributes this to her depression and to her son’s
disabilities. Plaintiff’s struggles hindered the Ceridian project’s progress, and TSA
eventually removed her from her role as Team Lead in May 2017. When Riefer met with

Plaintiff to inform her of this decision, Plaintiff walked out of the meeting. Riefer later
issued Plaintiff a written disciplinary action for insubordination because she walked out of
the meeting and did not return when asked. Plaintiff apologized for her conduct and
attributed it to her depression, although she expressly stated she was not seeking an
accommodation.

In June 2017, Riefer conducted Plaintiff’s yearly performance evaluation. [Doc. No.
63-9]. Although Riefer gave Plaintiff a satisfactory overall rating, Riefer rated Plaintiff as
below expectations in some categories, in part because of Plaintiff’s struggle to manage
competing demands and because Riefer thought Plaintiff did not react well under pressure.
Id. Riefer also stated that Plaintiff’s performance advanced a “successful HR contribution
to Ceridian.” Id. This performance evaluation qualified Plaintiff for a merit raise.

After McWilliams took over Riefer’s role as Plaintiff’s supervisor, TSA discovered
that some employees under Plaintiff’s supervision were working off the clock, potentially
in violation of the FLSA, to complete tasks related to the Ceridian project. One of
Plaintiff’s subordinates submitted a complaint alleging that Plaintiff frequently called and
texted her after work hours and on weekends. McWilliams reviewed the complaint and
documentation submitted by the employee, and he contacted Connie Dunn, a human

resources employee at TSA’s Territorial Headquarters in Atlanta, Georgia, for guidance on
the issue. Dunn told McWilliams that Plaintiff’s conduct was egregious and constituted a
terminable offense. Later that day, October 17, 2017, Plaintiff was suspended pending
Dunn’s investigation.
On November 9, 2017, Dunn completed her investigation and submitted a summary

of her findings to McWilliams. [Doc. No. 56-27]. In that summary, Dunn found that a
possible FLSA violation occurred under Plaintiff’s supervision and that Plaintiff was
negligent in her duties. Dunn recommended Plaintiff be given a final written warning and
placed on a performance improvement plan, and McWilliams supported her
recommendations.

Later that same day, Plaintiff submitted a letter of complaint, asserting that TSA
was discriminating against her based on her gender and disability. [Doc. No. 56-41]. She
stated that she knew of several cases where male TSA officers were not disciplined for
allowing employees to work off the clock, and she included a table of these alleged
incidents with her complaint.

On November 10, 2017, Dunn recommended Plaintiff’s employment be terminated
because she believed the discrimination complaint was based on false information. See
Dunn Dep. 158:5–163:1. Dunn thought this because, like Plaintiff, she was an employee,
not an officer. According to Dunn, employees were not privy to the records of disciplinary
action taken against officers. Plaintiff asserts that the table she included with her complaint
was based on her recollection.

Later on November 10, 2017, McWilliams decided to terminate Plaintiff’s
employment. In McWilliams’s termination letter, he told Plaintiff the reason for her
termination was her FLSA violation. He also mentioned Plaintiff’s “continued
performance deficiencies.” Plaintiff’s termination was effective November 13, 2017.
After her termination, Plaintiff conducted an extensive job search. She eventually

accepted employment with Legend Energy Services (Legend) on June 30, 2018. TSA
learned from discovery in this case that Plaintiff may have lied on her TSA job application
about her employment history. Plaintiff told TSA she resigned from two previous positions.
Evidence indicates, however, that Plaintiff may have been involuntarily terminated from
both. TSA indisputably discovered this information on June 19, 2020. Plaintiff has

stipulated that she “does not seek damages for wage loss for the period after July 30, 2018.”
Further, Plaintiff stipulates that she does not seek front pay or reinstatement.
DISCUSSION
A. Plaintiff’s Disability Discrimination Claim

A plaintiff who alleges discrimination may prove intentional discrimination through
either direct evidence of discrimination, like oral or written statements on the part of a
defendant showing a discriminatory motive, or indirect evidence of discrimination.
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). Plaintiff
offers no direct evidence of discrimination and relies solely on circumstantial evidence to
support her claims. Therefore, the burden-shifting analysis of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973) governs. See E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028,
1038 (10th Cir. 2011); Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013).
Plaintiff bears the initial burden of establishing a prima facie case of discrimination.
McDonnell Douglas Corp., 411 U.S. at 802. If a prima facie case is successfully
established, the burden then shifts to Defendant to articulate a legitimate,

nondiscriminatory reason for the adverse employment action. Id. at 802–03. If Defendant
provides such a reason, then the burden shifts back to Plaintiff to show that the proffered
justification is merely a pretext for unlawful discrimination. Id. at 804.
1. Prima Facie Case
To establish a prima facie case of disability discrimination, Plaintiff “must show

that, at the time [s]he was fired, (1) [s]he was a disabled person as defined by the ADA; (2)
[s]he was qualified, with or without reasonable accommodation, to perform the essential
functions of [her] job; and (3) [s]he was fired because of [her] disability.” See Carter v.
Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011); accord Hawkins v.
Schwan’s Home Serv., Inc., 778 F.3d 877, 883 (10th Cir. 2015). The first prong—whether
Plaintiff was disabled—is not in dispute. TSA challenges Plaintiff’s ability to establish

only the second and third elements.
a. Qualified for the Position
“The term ‘qualified,’ with respect to an individual with a disability, means that the
individual satisfies the requisite skill, experience, education and other job related
requirements of the employment position such individual holds or desires and, with or
without reasonable accommodation, can perform the essential functions of such position.”

29 C.F.R. § 1630.2(m). Plaintiff contends she satisfies this element because she met the
minimum qualifications for her position as a human resources manager and because she
believed she was performing that role satisfactorily. Additionally, her final performance
evaluation at TSA, which occurred after the start of the Ceridian project, shows that
Plaintiff met her overall job expectations. This evaluation qualified her for a merit raise.

The ADA does not define “essential functions,” but mandates that “consideration
shall be given to the employer’s judgment as to what functions of a job are essential.” See
42 U.S.C. § 12111(8). Tenth Circuit case law incorporates implementing regulations that
define the concept to mean “the fundamental job duties of the employment position” and
that identify appropriate considerations. See Adair v. City of Muskogee, 823 F.3d 1297,

1307 (10th Cir. 2016) (quoting 29 C.F.R. § 1630.2(n)(1)). The applicable regulations
provide:
(3) Evidence of whether a particular function is essential includes, but is not
limited to:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3). “Provided that any necessary job specification is job-related,
uniformly enforced, and consistent with business necessity, the employer has a right to
establish what a job is and what is required to perform it.” Hennagir v. Utah Dep’t of Corr.,
587 F.3d 1255, 1262 (10th Cir. 2009) (internal quotations omitted); accord E.E.O.C. v.
Picture People, Inc., 684 F.3d 981, 986 (10th Cir. 2012). “Determining whether a particular
function is essential is a factual inquiry.” Davidson v. Am. Online, Inc., 337 F.3d 1179,
1191 (10th Cir. 2003).
Defendant argues that Plaintiff’s prima facie claim fails at this element because she
cannot show she could perform essential job duties in connection with the Ceridian project.
Although Plaintiff complained about the complexity of the project and, eventually, lost her
role as lead on it due to the dissatisfaction of her superiors, she nonetheless received a
positive performance evaluation, which states that she both met TSA’s overall expectations
and advanced a “successful HR contribution to Ceridian.” Upon consideration of the facts
and evidence presented, the Court finds that Plaintiff has demonstrated a genuine dispute
of material fact regarding her ability to perform “essential functions” of her position as a
human resources director. A reasonable inference from these facts is that Plaintiff was
adequately performing the essential functions of her position but TSA simply lost faith in
Plaintiff’s ability to lead the Ceridian project.

b. Discrimination Based on Disability
Defendant also challenges Plaintiff’s ability to establish the third element of a prima
facie case that she was terminated because of her disability, commonly referred to as a
“causation” element. See Carter, 662 F.3d at 1147. Defendant contends Plaintiff cannot
establish a causal connection between Plaintiff’s complaint of disability discrimination and
the termination decision made one day later.

For proof of causation Plaintiff points out that her position was not eliminated, that
non-disabled persons were not disciplined for similar violations of the FLSA and TSA
policies, and that she was replaced in the position by someone who has not reported a
disability. The status of Plaintiff’s position after her discharge is irrelevant because TSA
never contended the actual reason for Plaintiff’s discharge was the elimination of her

position. See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1166 n.8 (10th
Cir. 2007) (“Indeed, where an employer contends the actual reason for termination in a
discriminatory firing case is not elimination of the employee's position, but, rather,
unsatisfactory conduct, the status of the employee's former position after his or her
termination is irrelevant.”) (quoting Plotke v. White, 405 F.3d 1092, 1100 (10th Cir. 2005)).

Still, despite Plaintiff’s struggles, she received an overall satisfactory employment
evaluation in June 2017, which qualified her for a merit-based raise. Later, after an
investigation revealed possible FLSA violations regarding employees supervised by
Plaintiff, Dunn and McWilliams initially resolved to give Plaintiff a final warning and
place her on a performance improvement plan. But the next day—one day after Plaintiff
submitted her complaint of disability discrimination—they agreed she should be

terminated. The only apparent additional information in the hands of Dunn and
McWilliams at that point was Plaintiff’s discrimination complaint. This temporal
proximity between the complaint and the termination decision is “something that could
both satisfy the third element of the prima facie case and lend support to the pretext
analysis.” Tadlock v. Marshall Cty. HMA, LLC, 603 F. App'x 693, 703 (10th Cir. 2015)
(unpublished) (internal quotation omitted). In combination, this evidence minimally meets

Plaintiff’s burden to show she was terminated “under circumstances which give rise to an
inference that the termination was based on her disability.” See Butler v. City of Prairie
Village, 172 F.3d 736, 748–49 (10th Cir. 1999) (internal quotation omitted). Viewing the
record in the light most favorable to Plaintiff, as required by Rule 56, the Court thus finds
that Plaintiff has presented sufficient facts to meet her burden at the prima facie stage—a

burden that is “not onerous.” See id.
The Court thus finds that Plaintiff has demonstrated the existence of a genuine
dispute of material facts that precludes summary judgment on the ground that she cannot
establish a prima facie case of disability discrimination.
2. Legitimate, Non-Discriminatory Reasons

The first reason for Plaintiff’s termination given by TSA was Plaintiff’s FLSA
violations; this was the only specific reason TSA listed in the termination letter. The letter
also mentioned “continued performance deficiencies,” but McWilliams gave inconsistent
testimony as to what that phrase meant. He first stated that the FLSA violations were the
only specific deficiencies he considered in making the termination decision. McWilliams
Dep. 162:15–163:6. He also stated that if he had other reasons for Plaintiff’s termination,

he could have listed them in the letter. Id. at 163:10–15. But at other times in the deposition
McWilliams stated that TSA considered reasons other than the FLSA violations in the
termination decision. See id. at 104:20–106:8.
After Plaintiff filed her EEOC charge, TSA offered several new reasons for the
termination. TSA explains that McWilliams made his termination decision based on an
“accumulation” of ongoing performance deficiencies, such as: Plaintiff’s impermissible

communication with employees during her suspension, prior disciplinary action of Plaintiff
for insubordination by her supervisor, TSA’s dissatisfaction of Plaintiff’s work on the
Ceridian project and of her conflict with the finance department, Plaintiff’s negative
demeanor, and Plaintiff’s improper changes to data in the Ceridian system.
These are all legitimate, non-discriminatory reasons for Plaintiff’s termination. TSA

has thus met its “exceedingly light” burden to produce a legitimate, non-discriminatory
reason for the adverse employment action. See C.R. England, Inc., 644 F.3d at 1043. The
burden of proof therefore shifts back to Plaintiff to show these reasons are pretextual.
3. Proof of Pretext
Defendant asserts that Plaintiff cannot show its stated reasons for terminating her

employment are pretextual. “A plaintiff can establish pretext by showing the defendant’s
proffered non-discriminatory explanations for its actions are so incoherent, weak,
inconsistent, or contradictory that a rational factfinder could conclude they are unworthy
of belief.” Id. at 1038–39 (internal quotations and alterations omitted); see Foster v.
Mountain Coal Co., 830 F.3d 1178, 1194 (10th Cir. 2016). “A plaintiff demonstrates
pretext by showing either that a discriminatory reason more likely motivated the employer

or that the employer’s proffered explanation is unworthy of credence.” Zamora v. Elite
Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007) (internal quotation omitted).
“[A]n employee must proffer evidence that shows each of the employer's
justifications are pretextual,” but “when the plaintiff casts substantial doubt on many of the
employer's multiple reasons, the jury could reasonably find the employer lacks credibility.”
Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000). “‘The

factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief
is accompanied by a suspicion of mendacity) may, together with the elements of the prima
facie case, suffice to show intentional discrimination.’” Id. (quoting Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 147 (2000)).
a. The reason given in the termination letter

The termination letter listed one specific reason for Plaintiff’s termination: her
FLSA violations. Plaintiff was suspended pending Dunn’s investigation of these potential
FLSA violations. In her summary of the investigation, Dunn’s initial recommendations
regarding discipline for the violations were to give Plaintiff a final written warning and to
place Plaintiff on a performance improvement plan. Dunn submitted her report to

McWilliams, and he supported her recommendations. Later that day, Plaintiff submitted a
letter of complaint, asserting that TSA was discriminating against her based on her gender
and disability. The next day, Dunn changed her recommendation; she recommended
Plaintiff’s employment be terminated because she believed the discrimination complaint
was based on false information. McWilliams terminated Plaintiff’s employment that day—
just one day after Plaintiff submitted her complaint. A reasonable jury could conclude the

change from giving Plaintiff a final warning to terminating her employment was motivated
by a discriminatory purpose. There is thus sufficient evidence for the jury to find this
proffered reason for Plaintiff’s discharge is unworthy of credence.
b. The reasons proffered after Plaintiff’s EEOC charge
TSA has not been consistent in its assertion of the additional nondiscriminatory
reasons it proffered after Plaintiff’s EEOC charge. In response to the charge, TSA listed

several new reasons for the termination decision. These included Plaintiff missing
deadlines, Plaintiff giving false reports on the progress of the Ceridian project, Plaintiff’s
attendance issues, and Plaintiff’s abnormal working hours. TSA has abandoned all these
reasons, and McWilliams denied considering them in his termination decision. TSA’s
response to the EEOC charge also mentions that parts of Plaintiff’s final performance

evaluation related to the Ceridian project were considered in the termination decision, but
McWilliams did not review the evaluation before firing Plaintiff. McWilliams Dep. 93:6–
10.
Plaintiff has cast doubt on many of TSA’s remaining proffered reasons for firing
her. One reason TSA still relies upon to justify Plaintiff’s discharge is her inability to work

with Ceridian. But in her final performance evaluation, Riefer stated that Plaintiff both met
TSA’s overall expectations and advanced a “successful HR contribution to Ceridian.” All
the reasons TSA gave for Plaintiff’s termination were known to Dunn and McWilliams
when they initially agreed to give Plaintiff a final warning: the disciplinary action Riefer
took against Plaintiff in May 2017 for insubordination and failure to follow instructions,
Plaintiff’s violation of her suspension by contacting other employees, Plaintiff’s continued

conflicts with the finance department, Plaintiff’s alleged negative demeanor, and Plaintiff’s
alleged impermissible changes to data in the Ceridian system. Although Dunn and
McWilliams knew of each of these and could have considered them in their initial decision
to give Plaintiff a final warning, they were not given as reasons for her termination until
months after the termination decision.
Upon consideration of the facts and evidence in the light most favorable to Plaintiff,

the Court finds that Plaintiff has shown sufficient inconsistencies and weaknesses in TSA’s
explanation of the decision to terminate her employment that a jury could reasonably
conclude Defendant’s asserted reasons for the termination decision are pretextual and
Plaintiff’s disability was a determining factor. Thus, the Court finds that Plaintiff has
sufficiently demonstrated the existence of a genuine dispute of material facts and that

summary judgment is inappropriate on Plaintiff’s disability discrimination claim.
B. Plaintiff’s Disability Association Claim
The parties agree that the only difference between Plaintiff’s disability
discrimination and disability association claims is that the latter is based on TSA’s
knowledge of her son’s disability, rather than her own disability. To prove a prima facie

case of associational discrimination, Plaintiff must establish that: (1) she was “qualified”
for the job at the time of the adverse employment action; (2) she was subjected to an
adverse employment action; (3) she was known by her employer at the time to have a
relative or associate with a disability; and (4) the adverse action occurred under
circumstances raising a reasonable inference that the disability of the relative or associate
was a determining factor in the employer’s decision. Trujillo v. PacifiCorp, 524 F.3d 1149,

1154 (10th Cir. 2008).
For purposes of Plaintiff’s disability discrimination claim, the Court has already
found that Plaintiff provided minimally sufficient evidence to meet her burden on each
prima facie element; she now must establish that TSA knew of her son’s disabilities. TSA
does not dispute that it knew Plaintiff’s son had ADHD and Tourette Syndrome, and in her
written complaint of discrimination, Plaintiff stated she thought TSA was discriminating

against her based on her son’s disability. Dunn and McWilliams decided to fire Plaintiff
the day after her written complaint. This evidence is minimally sufficient to establish the
prima facie case for a disability association discrimination claim. Further, the Court has
already found that Plaintiff provided sufficient evidence of pretext. Thus, the Court finds
genuine disputes of material facts preclude summary judgment on Plaintiff’s disability

association discrimination claim.
C. Plaintiff’s Retaliation Claim
Plaintiff claims TSA unlawfully retaliated against her by firing her for requesting
an accommodation for her disability and submitting a written complaint of disability and
gender discrimination in violation of the ADA, Title VII, and the OADA. The burden-

shifting analysis of McDonnell Douglas applies to Plaintiff’s retaliation claim. See Morgan
v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Plaintiff abandoned her retaliation
claim arising out of her request for accommodation. [Doc. No. 63 at p. 1]. The Court will
thus examine TSA’s termination of Plaintiff’s employment as the sole adverse employment
action for purposes of determining whether TSA is entitled to judgment as matter of law
on Plaintiff’s retaliation claim.

1. Prima Facie Case
The prima facie elements for retaliation are the same under Title VII and the ADA.
See Haynes v. Level 3 Commc'ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006) (applying
the same elements of prima facie case to Title VII and ADA retaliation claims). To establish
a prima facie case of retaliation, a plaintiff must show that (1) she engaged in protected
employee activity; (2) she was subjected to an adverse action by an employer either after

or contemporaneous with the protected activity; and (3) there was a causal connection
between the employee's activity and the employer's adverse action. Morgan, 108 F.3d at
1324. (citing Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996) (Title VII
case)).
Plaintiff’s claim clearly meets the first two elements, and TSA appears to concede

that it meets the third. [Doc. No. 56 at p. 28]. A complaint of discrimination constitutes a
protected activity for purposes of ADA and Title VII retaliation claims. Hertz v. Luzenac
Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004); see Weil v. Carecore Nat., LLC, 833 F.
Supp. 2d 1289, 1295 (D. Colo. 2011). Further, “any reasonable employee would have
found termination materially adverse.” Metzler v. Fed. Home Loan Bank of Topeka, 464

F.3d 1164, 1171 (10th Cir. 2006).
Plaintiff argues—and TSA concedes—that the close temporal proximity between
Plaintiff’s submission of her complaint and TSA’s decision to fire her is sufficient to meet
the causation requirement in ADA and Title VII retaliation claims. The Court agrees. The
Tenth Circuit has “repeatedly recognized temporal proximity between protected conduct
and termination as relevant evidence of a causal connection sufficient to ‘justify an

inference of retaliatory motive.’” Id. (quoting Haynes, 456 F.3d at 1228). Plaintiff was
fired one day after submitting her written complaint of disability and gender discrimination.
This close temporal proximity is sufficient to establish the causation element. Plaintiff has
thus established a prima facie case for retaliation under the ADA and Title VII, and the
burden shifts to TSA to proffer a legitimate non-discriminatory reason for Plaintiff’s
termination.

2. Legitimate, Non-Discriminatory Reasons
TSA invokes the same non-discriminatory reasons for Plaintiff’s retaliation claim
that it did for her disability discrimination claim; it thus has met its burden to produce a
legitimate, non-discriminatory reason for Plaintiff’s termination. Plaintiff must show a
genuine dispute of material fact exists as to whether those reasons are pretextual—i.e.,

unworthy of belief.
3. Proof of pretext
For her disability discrimination claim, Plaintiff succeeded in showing a genuine
dispute of material fact that TSA’s proffered reasons are pretextual, and her case that TSA’s
nondiscriminatory reasons for firing her are unworthy of belief is even stronger for her

retaliation claim. While it is insufficient alone to prevent summary judgment, “[c]lose
temporal proximity between the employee's complaint and the adverse employment action
is a factor in determining whether the employer's proffered reason is a pretext for
retaliation.” Pastran v. K-Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000).
Before Plaintiff’s complaint, Dunn and McWilliams were prepared to give her a
final warning and place her on a performance improvement plan. But the next day—one

day after Plaintiff submitted her complaint—they agreed she should be terminated. This,
in combination with the other evidence Plaintiff offered to demonstrate pretext, sufficiently
establishes a dispute of material fact as to pretext. Therefore, the Court finds that Plaintiff
has presented sufficient evidence to preclude summary judgment on her ADA and Title
VII retaliation claim.

D. Plaintiff’s motion for summary judgment on TSA’s defenses
Plaintiff seeks summary judgment on four defenses asserted by TSA: (1) failure to
mitigate damages, (2) after-acquired evidence, (3) unclean hands, and (4) equitable
estoppel. See Def.'s Answer to Pl.’s Am. Compl. [Doc. No. 41 at pp. 5–7]. The Court will
address the applicability of each defense, viewing all facts and reasonable inferences in the
light most favorable to TSA.

1. Mitigation of Damages
TSA has asserted as an affirmative defense to Plaintiff's claim for damages allegedly
caused by the termination of her employment, that Plaintiff failed to mitigate her damages.
It is well settled that TSA bears the burden of proving Plaintiff “did not exercise reasonable
efforts to mitigate damages.” McClure v. Ind. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th

Cir. 2000). To meet this burden, “‘the [employer] must establish (1) that the damage
suffered by plaintiff could have been avoided, i.e. that there were suitable positions
available which plaintiff could have discovered and for which he was qualified; and (2)
that plaintiff failed to use reasonable care and diligence in seeking such a position.’” Id.
(quoting EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980)).

The termination of Plaintiff’s employment at TSA became effective on November
13, 2017. On July 30, 2018, Plaintiff accepted an offer of employment with a new
employer, Legend. TSA does not dispute that Plaintiff’s mitigation efforts to find
alternative employment between her termination from TSA and the date she accepted new
employment were legally sufficient from a mitigation of damages perspective. TSA argues
only that Plaintiff’s duty to mitigate continues through trial.

But Plaintiff does not seek damages for lost wages for any period after she accepted
her position at Legend. In her brief in support of her motion for summary judgment,
Plaintiff stipulated that she “does not seek damages for wage loss for the period after July
30, 2018.” Statements in briefs “‘may be considered admissions at the court's discretion.’”
U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 833 n.4 (10th Cir. 2005) (quoting Guidry

v. Sheet Metal Workers Int'l Assoc., 10 F.3d 700, 716 (10th Cir. 1993)). The Court exercises
that discretion and finds the stipulations made by Plaintiff regarding the damages she seeks
are binding.
Since Plaintiff is bound by her stipulations, she is precluded from seeking damages
for lost wages for the period after she accepted alternative employment. Thus, Plaintiff’s

employment history and job search efforts subsequent to July 30, 2018 would be
immaterial to the issue of mitigation of damages. TSA conceded the very fact it must
disprove to establish its mitigation defense: that Plaintiff exercised reasonable mitigation
efforts after her termination. Plaintiff is thus entitled to summary judgment on this defense.
2. After-Acquired Evidence
If TSA establishes the after-acquired evidence defense, Plaintiff’s damages will be

limited; she may not seek reinstatement, front pay, or backpay from the date the new
information was discovered. See McKennon v. Nashville Banner Publishing Co., 513 U.S.
352, 361–62. (1995). In McKennon, the Supreme Court held in a wrongful termination case
that “after-acquired evidence of misconduct by the former employee during the time of
employment, while not relieving the employer of liability, may be relevant to the issue of
damages.” See Perkins v. Silver Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1145

(10th Cir. 2009) (emphasis omitted); see also Ricky v. Mapco, Inc., 50 F.3d 874, 876 (10th
Cir. 1995) (“after-acquired evidence of misconduct cannot act as a complete bar to
recovery in an [employment discrimination] action, but rather only affects the amount of
damages an employee may recover”). The Tenth Circuit has stated that applying
McKennon involves “a two step process”:

In applying McKennon, the district court considers a two-step process. First,
the employer must establish “that the wrongdoing was of such severity that
the employee in fact would have been terminated on those grounds alone if
the employer had known of it at the time of the discharge.” McKennon, 513
U.S. at 362–63, 115 S.Ct. 879; see Ricky v. Mapco, Inc., 50 F.3d 874, 876
(10th Cir. 1995) (stating the employer must not only show that it was
unaware of the misconduct at the time it terminated the employee, but that
the misconduct was “serious enough to justify discharge” and that it would
have discharged the employee had it known about the misconduct). Second,
and only after an employer has met this initial showing, the after-acquired
evidence may then be considered to limit the damages remedy available to
the wrongfully terminated employee. McKennon, 513 U.S. at 362, 115 S.Ct.
879 (“The beginning point in the trial court's formulation of a remedy should
be calculation of backpay from the date of the unlawful discharge to the date
the new information was discovered.”).

Perkins, 557 F.3d at 1145-46.
TSA seeks the benefit of the defense in this case based on evidence developed
during discovery that shows Plaintiff may have lied on her TSA job application about her

employment history. Specifically, evidence indicates Plaintiff told TSA she resigned from
two previous positions when she was involuntarily terminated from both. TSA discovered
this information on June 19, 2020.
Plaintiff’s stipulation, that she “does not seek damages for wage loss for the period
after July 30, 2018,” is equally applicable to this defense. [Doc. No. 55 at 5]. Further,
Plaintiff stipulates that she does not seek front pay or reinstatement. Id. Consequently, she

has stipulated that she is not seeking reinstatement, front pay, or backpay for the period
after the date TSA discovered that her responses on her job application were untrue.
Therefore, the after-acquired evidence defense would have no bearing on either liability or
damages; there is thus no reason for TSA to advance it at trial. Summary judgment on this
defense is granted.2

3. Unclean Hands and Equitable Estoppel
Plaintiff, citing Millsapp v. McDonnell Douglas Corp., 368 F.3d 1246, 1258 (10th
Cir. 2004), argues that since she is not seeking reinstatement, backpay should be considered
a legal—rather than an equitable—remedy, to which equitable defenses are inapplicable.
Although Courts have continually referred to backpay as an equitable remedy, the Tenth

Circuit in Millsapp explained that in Title VII Congress “treated backpay as equitable only

2 TSA asserts that Plaintiff sought summary judgment on the after-acquired defense to limit its
ability to present evidence to the jury challenging Plaintiff’s credibility. [Doc. No. 62 at 13]. The
Court’s ruling on the applicability of the defense is not a ruling on admissibility of evidence; that
issue is better left for a motion in limine or for resolution at trial.
in the narrow sense that it allowed backpay to be awarded together with equitable relief.”
Id. (alterations and quotation marks omitted) (quoting Great-West Life & Annuity Ins. Co.

v. Knudson, 534 U.S. 204, 218 n.4 (2002)). Title VII “permits an award
of backpay together with reinstatement; and when a court orders such affirmative action,
the relief may be characterized as equitable.” Id. But see Bartee v. Michelin N. Am., Inc.,
374 F.3d 906, 910 (10th Cir. 2004) (“A district court's decision to award back or
front pay under the ADA is an equitable one.”).
“Courts have been far from consistent in their treatment of whether backpay is to be

treated as a legal or an equitable remedy, to be determined by the court or by the jury.”
Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1443 (10th Cir. 1988). “In general, the
characterization of backpay as legal or equitable has been determined by whether the
plaintiff has requested backpay as an adjunct to the equitable remedy of reinstatement, in
which case it has been characterized as equitable.” Id.

Since Plaintiff is not seeking reinstatement in this case, the Court will treat her claim
for backpay as seeking legal, rather than equitable, relief. As such, the equitable defenses
of unclean hands and equitable estoppel are inapplicable. Summary judgment is granted to
Plaintiff on these defenses.
CONCLUSION

For these reasons, the Court finds that genuine disputes of material facts preclude
summary judgment on Plaintiff’s disability discrimination, associational disability, and
retaliation claims. The Court further finds that Plaintiff is entitled to summary judgment on
TSA’s affirmative defenses of failure to mitigate damages, after-acquired evidence,
unclean hands, and equitable estoppel.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment [Doc. No. 56] is DENIED, as set forth herein.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment
[Doc. No. 55] is GRANTED, as set forth herein.
IT IS SO ORDERED this 30" day of September, 2021.

\ by Q
TIMOTHY D. DeGIUSTI
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389178. Public record. Not legal advice.