Forrest v. Zeeco, Inc.

Gnited States District Court

for the s2orthern District of Oklahoma

Case No. 22-cv-427-JDR-SH

NATHAN FORREST,

Plaintiff,

PeErsUs

ZEECO, INC.,

Defendant.

OPINION AND ORDER

After suffering a stroke, Mr. Forrest took time away from his work at

Zeeco, Inc. to recover, attend appointments, and receive follow-up care. He

was cleared to return to work without restrictions. Later, Zeeco allegedly in-

creased Mr. Forrest’s workload, placed him on a performance improvement

plan, and issued a final written warning. Mr. Forrest resigned rather than sign

the written warning and sued Zeeco for violating the Americans with Disabil-

ities Act, the Family Medical Leave Act, and the Oklahoma Anti-Discrimina-

tion Act. See Dkt. 2. The question currently before the Court is whether,

based on the undisputed facts presented in Zeeco’s motion for summary judg-

ment [Dkt. 38], Mr. Forrest can prevail on any of these claims. The Court

answers this question in the negative and grants Zeeco’s motion.

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.”

Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019) (quoting Fed. R. Civ.

P. 56(a)). Ordinarily, a Court reviewing a motion for summary judgment will

No. 22-cv-427

resolve all factual disputes in favor of the non-moving party and construe all

reasonable inferences in that party’s favor. /d. But this is not an ordinary case

because Mr. Forrest has not complied with this Court’s local rules, which re-

quire a party responding to a motion for summary judgment to (1) identify

the facts in dispute by separately numbered paragraphs, and (2) cite the evi-

dentiary material that supports its position as to each allegedly disputed fact.

See N.D. Okla. Civ. R. 56-1 (requiring the responding party to “state any fact

that is disputed,” and provide a citation to “any evidentiary material” that

supports its position). Parties practicing before this the Court are warned that

“Tall material facts” set forth in a moving party’s statement of undisputed

facts “shall be deemed admitted for the purpose of summary judgment unless

specifically controverted . .. using the procedures set forth” in Local Rule 56-

Le

Zeeco presented statements of undisputed fact that are appropriately

supported by evidence of record. Dkt. 38 at 8-12.’ Mr. Forrest failed to contest

those statements using the procedures in Local Rule 56-1. In view of that fail-

ure, the Court will treat as admitted all facts set forth in Zeeco’s motion that

are not controverted by a readily identifiable portion of the record and will

not conduct an independent search of the record to determine whether a case

could be made that the facts are not as Zeeco presents them. See Coleman ».

Blue Cross Blue Shield of Kansas, Inc., 287 F. App’x 631, 635 (10th Cir. 2008);

see also Cross v. Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (recognizing

that the responding party must identify any factual disputes with particular-

ity).

II

Mr. Forrest was hired in 2014 to work as a buyer in Zeeco’s purchasing

department. Dkt. 38 at 8. His job duties expanded and changed over time,

and Mr. Forrest was eventually promoted to the position of Buyer III, the

' All citations utilize CMECF pagination.

No, 22-cv-427

highest buyer position at Zeeco. /d. There is no record in this case of any

concerns with Mr. Forrest’s work prior to July 2018.

On July 11, 2018, Mr. Forrest suffered a stroke. /d. at 9. He was hospi-

talized for two days. Dkt. 38-2 at 113. Soon afterward, Mr. Forrest’s physician

provided Zeeco with an FMLA Certification Form advising that Mr. Forrest

was released to return to work but might need to work four-hour days for the

period beginning July 11, 2018, and ending January 10, 2019. Dkt. 38 at 9. The

form also indicated that Mr. Forrest might need therapy two or three times

per week and a follow-up surgery that would require him to take time off for

a “few days.” Dkt. 38-2 at 114. An email sent by Dr. Larry Shepherd, who

treated Mr. Forrest, stated that Mr. Forrest was clear to return to work on

July 18, 2018. Dkt. 38-2 at 118. That email did not place any restrictions on

Mr. Forrest. /d.; Dkt. 38 at 9. Mr. Forrest returned to work. He was not rep-

rimanded for taking time off, and when he requested additional time off, his

requests were granted. Dkt. 38 at 9.

Nearly two years later, in June 2020, Mr. Forrest was placed on a per-

formance improvement plan to address Zeeco’s concerns about his attitude,

his ability to manage his anger, and disparaging comments he had made about

his co-workers. Dkt. 38 at 9. As part of the plan, Mr. Forrest was required to

complete counseling through Zeeco’s employee assistance program. Mr. For-

rest successfully completed the plan and the counseling, which he found to

be beneficial. Jd. at 10.

Zeeco considered Mr. Forrest’s job performance to be satisfactory un-

til early 2021, when his supervisor, Kim Clare, determined that Mr. Forrest

was not performing successfully in several areas. She issued a final written

warning to Mr. Forrest in February 2021 with the expectation that Mr. For-

rest would comply with the warning and satisfactorily perform the duties de-

scribed in that warning. /d. But Mr. Forrest refused to sign the written warn-

ing. /d.; Dkt. 38-3. Instead, at a March 1, 2021 meeting with Ms. Clare and

No. 22-cv-427

Zeeco’s Human Resources Manager, Bill Summar, Mr. Forrest stated that he

was resigning from his position effective immediately. Dkt. 38 at 10.

Zeeco alleges that Mr. Forrest never indicated during the March 1

meeting that he had a physical or mental impairment preventing him from

working as a Buyer III. Jd. Nor did Mr. Forrest request a leave of absence.

Dkt. 38-3 at 3. Mr. Forrest did express an interest in looking for other open

positions at Zeeco, éd. at 2, but there is no evidence that there were any open

positions in the departments Mr. Forrest was interested in at the time of his

resignation, nor is there any evidence that Mr. Forrest ever applied for a dif-

ferent position with Zeeco. Dkt. 38 at 11.

Mr. Forrest alleges that, after his stroke, Zeeco assigned him more

work than other employees in the same position, and that this increase in

workload, together with his supervisor’s management style, caused him sig-

nificant stress. Dkt. 40 at 4-6. He contends that he had hoped to have a meet-

ing with his supervisors on March 1, 2021, to address concerns with his work-

load and the stress it was causing him. Jd. at 7. Mr. Forrest was unable to re-

solve his concerns and, as a result, resigned from Zeeco.

Mr. Forrest filed a charge of discrimination with the EEOC on Decem-

ber 10, 2021, and later sued Zeeco for violating the ADA, the FMLA, and the

ODEA. He argues that Zeeco discriminated against him by assigning him

more work than his similarly situated colleagues; that Zeeco failed to provide

sufficient notice to him of his FMLA rights; that Zeeco discriminated against

him by issuing the performance improvement plan and the final written warn-

ing; that Zeeco failed to engage in an interactive process to accommodate his

disability during the March 1 meeting; and that all of Zeeco’s actions, taken

together, created working conditions that were so intolerable that he had no

choice but to resign. Zeeco filed a motion for summary judgment on all

claims, which Mr. Forrest opposes. Dkts. 38, 40.

No. 22-cv-427

ITI

Zeeco opens its brief by arguing that Mr. Forrest’s OADA claims, por-

tions of his ADA claims, and portions of his FMLA claims are time-barred.

Dkt. 38 at 13-14. Mr. Forrest does little to respond to these arguments. See

generally Dkt. 40. The Court agrees with Zeeco on all three points.

Mr. Forrest cannot pursue his OADA claims because they were not

the subject of a timely filed charge of discrimination. To have standing to pur-

sue a discrimination or retaliation claim under the OADA, a plaintiff must file

a discrimination charge with either the Attorney General’s Office of Civil

Rights Enforcement or the Equal Employment Opportunity Commission

within 180 days of the alleged discrimination. See Okla. Stat. tit. 25, §1350(B).

Although Mr. Forrest’s employment with Zeeco ended on March 1, 2021, he

did not file a charge of discrimination with the EEOC until December 10,

2021, more than 280 days after the last possible act that gave rise to his claims

of discrimination. See Dkt. 38 at 11, 12 (statements of fact nos. 31, 37). These

undisputed facts preclude recovery under the OADA, and Zeeco is entitled

to summary judgment on that claim.

Mr. Forrest’s ADA claims are also barred to the extent they arise out

of actions that took place on or before February 12, 2021. An individual seek-

ing relief under the ADA must “file a timely administrative claim within 300

days of the challenged action. The filing is a prerequisite to a civil suit .. . and

a claim is time-barred if it is not filed within these time limits.” Davidson ».

Am. Online, Inc., 337 F.3d 1179, 1183 (10th Cir. 2003) (footnote and citations

omitted).* Zeeco seeks to prevent Mr. Forrest from seeking relief for conduct

that took place more than 300 days prior to December 10, 2021 (when Mr.

Forrest filed his administrative claim). Dkt. 38 at 13-14. Mr. Forrest does not

? See 42 U.S.C. § 12117(a) (incorporating the procedures set forth in Title VII into

the ADA); 42 U.S.C. § 2000e-5(e)(1) (setting forth 300-day time limit for filing a charge of

discrimination).

No. 22-cv-427

argue that he can recover for conduct outside the 300-day window. Instead,

he contends that some of Zeeco’s alleged misconduct took place within that

window. See Dkt. 40 at 10, 24. Because Mr. Forrest has not provided any evi-

dence or arguments that would permit the Court to consider conduct occur-

ring on or before February 12, 2021,’ the Court grants Zeeco’s motion and

limits the scope Mr. Forrest’s ADA claim accordingly.

Mr. Forrest’s FMLA-interference claims are also barred in part. A

three-year statute of limitations applies to claims arising from willful FMLA

violations. See Bass v. Potter, 522 F.3d 1098, 1104 (10th Cir. 2008). Zeeco

seeks to prevent Mr. Forrest from recovering for conduct that took place out-

side that limitations period. Dkt. 38 at 14 (discussing events that took place in

2018 and 2019). In response, Mr. Forrest argues only that his FMLA claims

are timely because they “‘are based on the events in 2020 and 2021.” Dkt. 40

at 23-24. Because Mr. Forrest offers no argument or evidence suggesting that

the Court could consider conduct that took place prior to September 30,

2019, the Court grants Zeeco’s motion to limit the scope of Mr. Forrest’s

FMLA claims.

IV

The Court now turns to Zeeco’s substantive challenges to Mr. For-

rest’s remaining claims, all of which arise under federal law. Mr. Forrest

brings claims against Zeeco for failure to engage in the interactive process in

violation of the ADA (Count J), failure to accommodate in violation of the

ADA (Count II); disability discrimination and wrongful discharge in violation

of the ADA (Counts III and IV); unlawful retaliation in violation of the ADA

(Count V); FMLA interference (Count VI); and FMLA retaliation (Count

’ Courts may consider conduct that predates the statutory period in certain cases,

such as when the plaintiff alleges that he was the victim of a continuing discriminatory pol-

icy or practice. Cf Davidson, 337 F.3d at 1183-84. Mr. Forrest does not argue that the con-

tinuing-violation exception applies in this case.

No. 22-cv-427

VII).* Zeeco has moved for summary judgment on all eight claims. Dkt. 38.

Mr. Forrest acknowledges that summary judgment is appropriate with re-

spect to Count V, but he otherwise disputes Zeeco’s motion. See Dkt. 40 at

27 (“With the sole exception of Mr. Forrest’s claim for retaliation under the

Americans with Disabilities Act, Defendant’s Motion for summary judgment

must be denied.””). The Court will address each claim in turn.

Zeeco is entitled to summary judgment on Mr. Forrest’s claim that it

violated the ADA by failing to engage in an interactive process to accommo-

date Mr. Forrest’s disability. “When an employee requests an accommoda-

tion for a qualifying disability, the Americans with Disabilities Act requires

employers to participate in an ‘interactive process’ . . . to determine a mutu-

ally suitable accommodation.” Brigham v. Frontier Airlines, Inc., 57 F.4th 1194,

1201 (10th Cir. 2023) (quoting Aubrey v. Koppes, 975 F.3d 995, 1007 (10th Cir.

2020)). But there is no independent cause of action for failure to engage in

that process. /d. (holding that “failure to engage in an interactive process is

not independently actionable”). Zeeco’s alleged failure to engage in a good-

faith, back-and-forth discussion to identify Mr. Forrest’s precise limitations

and provide an appropriate accommodation may be relevant to Mr. Forrest’s

failure-to-accommodate claim, but it does not provide an independent basis

for relief. See id.; see also Aubrey, 975 F.3d at 1010. Accordingly, the Court

grants Zeeco’s motion for summary judgment on this claim.

Mr. Forrest’s failure-to-accommodate claim fares no better. To suc-

ceed on this claim, Mr. Forrest must show that (1) he is disabled for purposes

of the ADA; (2) he is qualified to perform the essential functions of his job,

Tn his complaint, Mr. Forrest alleges that Counts I through V arise under both the

ADA and the OADA. See Dkt. 2. Because the Court has granted Zeeco’s motion for sum-

mary judgment with respect to Mr. Forrest’s OADA claims on other grounds, see Section

III, supra, the Court will not address the merits of those claims.

No. 22-cv-427

with or without reasonable accommodation; and (3) his employer discrimi-

nated against him by refusing to provide him with a reasonable accommoda-

tion. See Hennagir v. Utah Dept of Corr., 587 F.3d 1255, 1261 (10th Cir. 2009)

(setting forth prima face claim of discrimination under the ADA); Punt v.

Kelly Servs., 862 F.3d 1040, 1048, 1050 (10th Cir. 2017) (recognizing that fail-

ure to accommodate is a form of discrimination under 42 U.S.C. §

12112(b)(5)(A)).° Each of these elements is essential. Hennagzr, 587 F.3d at

1262-63. If Mr. Forrest fails to set forth facts to support even one of them,

summary judgment must be entered in Zeeco’s favor. F.g., 7d. (granting sum-

mary judgment without addressing all three elements because the plaintiff

had faiied to establish one of them).

The Court first turns to the question of whether Mr. Forrest is disa-

bled. A person is considered disabled under the ADA if he (1) has “‘a physical

or mental impairment that substantially limits one or more major life activi-

ties,” (2) has “‘a record of such an impairment,” or (3) is “regarded as having

such an impairment.” 42 U.S.C. § 12102(1); see Tate v. Farmland Indus., Inc.,

268 F.3d 989, 992 (10th Cir. 2001). Mr. Forrest does not identify which of

these three definitions apply to him. See generally Dkt. 40. The Court con-

cludes that none of them do.

There is no evidence that Mr. Forrest has “a physical or mental im-

pairment that substantially limits one or more major life activities.” 42 U.S.C.

§ 12102(1). When considering whether a plaintiff fits within this definition, a

court must determine whether the plaintiff suffers from a physical or mental

impairment, identify the major life activities affected by the impairment, and

> The parties have treated Mr. Forrest’s failure-to-accommodate claim and his dis-

crimination claims as distinct causes of action even though they arise under the same stat-

utory provision. The Court will do the same. F.g., Bartee v. Michelin N. Am., Inc., 374 F.3d

906, 912, n.5 (10th Cir. 2004) (recognizing that failure-to-accommodate and discrimination

claims may be “alternative methods of proving one statutory cause of action” but address-

ing them separately on appeal).

No. 22-cv-427

decide whether the impairment “substantially limits” any of those activities.

See Bragdon v. Abbott, 524 U.S. 624, 631 (1998). Mr. Forrest alleges that he

suffers from high blood pressure,’ stress, anxiety, and physical, cognitive, and

emotional decline. Dkt. 40 at 4-6. But he has not identified the major life ac-

tivities affected by these impairments,’ presented evidence as to how these

impairments limit his day-to-day activities, or described how his abilities

compare to those of the general population. Without this evidence, there is

nothing to support the conclusion that Mr. Forrest is disabled under the first

definition in § 12102(1). See Lusk v. Ryder Integrated Logistics, 238 F.3d 1237,

1241 (10th Cir. 2001) (affirming grant of summary judgment where the plain-

tiff failed to produce evidence that a forty-pound lifting restriction was “sub-

stantially limiting”); Harmon ». Sprint United Mgmt. Corp., 264 F. Supp. 2d

964, 969 (D. Kan. 2003) (granting summary judgment where the plaintiff pre-

sented no evidence that he could not perform, or was significantly restricted

in performing, any major life activities when compared to the general popu-

lation).

Mr. Forrest has also failed to present evidence that has a record of a

substantially limiting impairment under § 12102(1). “To have a record of [a

substantially limiting] impairment, a plaintiff must have a history of, or been

misclassified as having, an impairment that substantially limited a major life

activity.” Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir. 1999)

(citations omitted). The problem of proof that prevents Mr. Forrest from es-

tablishing a substantially limiting impairment also precludes him from estab-

lishing a record of one. Cf Lusk, 238 F.3d at 1241 (concluding that because

the plaintiff’s records showed evidence of a lifting restriction and “nothing

more” there was no record of an impairment that substantially limited a major

® Mr. Forrest is required to monitor his blood pressure and lie down when his blood

pressure becomes elevated.

” See Dkt. 40 at 11 (summarily concluding that Mr. Forrest’s limitations affected

unidentified life activities).

No. 22-cv-427

life activity). Mr. Forrest has not identified a “record” of a disabling impair-

ment that affects a major life activity, nor has he explained how Zeeco relied

on that record. Mr. Forrest’s “failure to present this evidence is alone suffi-

cient to conclude that he does not qualify as having a record of a disabling

impairment under the ADA.” Harmon, 264 F. Supp. 2d at 970 (citing Rakity

yp. Dillon Cos., Inc., 302 F.3d 1152, 1160 (10th Cir. 2002)).*

There is likewise no evidence that Zeeco regarded Mr. Forrest as hav-

ing a disability. A person is regarded as having a disability under § 12102(1) if

his employer (1) mistakenly believes he has a substantially limiting impair-

ment that he does not have, or (2) mistakenly believes that he has a limiting

impairment when the impairment is not so limiting. Equal Emp. Opportunity

Comm’n v. BNSF Ry. Co., 853 F.3d 1150, 1156 (10th Cir. 2017). In either case,

it is essential that the employer entertain a misconception about the individ-

ual’s abilities. Jd.; Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 499 (10th Cir.

2000). Mr. Forrest presents no evidence of a misconception on Zeeco’s part.

Cf Dkt. 40 at 11 (arguing that Zeeco accurately believed Mr. Forrest to be

disabled). Nor has he presented any evidence that Zeeco treated Mr. Forrest

8 Mr. Forrest suffered a stroke on July 11, 2018, and was hospitalized for two days.

Dkt. 38-2 at 113. His physician indicated that Mr. Forrest might need to work half-days pe-

riodically through January 10, 2019, and would need to take a few days off for a future sur-

gery. Id. at 114. A separate email suggests Mr. Forrest was released to return to work with

no restrictions on July 18, 2018. /d. at 118. The record pertaining to Mr. Forrest’s hospital

stays and subsequent treatment is insufficient to permit this Court or a jury to conclude that

Mr. Forrest had a limitation that substantially limited a major life activity, or a record of

such a limitation. See Rakity, 302 F.3d at 1161 (holding that the plaintiff’s “record of missed

work due to surgery, short hospital stays, and rehabilitation does not, by itself, imply he has

a record of substantial limitation in working”); Sorensen, 194 F.3d at 1087 (finding that the

plaintiff was not disabled as a result of her five-day hospitalization and subsequent recovery

period, during which she could not perform any life activities, when she was able to return

to work eight days after her release and no longer had an impairment substantially limiting

a major life activity); Zwygart v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Kan., 412 F. Supp.

2d 1193, 1198 (D. Kan. 2006), aff’d, 483 F.3d 1086 (10th Cir. 2007) (concluding that a doc-

tor’s note clearing the plaintiff to return to work without restrictions “‘vitiate[d] any possi-

ble allegation of a long-term disability”).

No. 22-cv-427

as disabled.’ Because Mr. Forrest has failed to point to evidence that would

permit a jury to find that he is disabled under this or any other definition in §

12102(1), his failure-to-accommodate claim cannot proceed to trial.

Even if the evidence could support a finding that Mr. Forrest is disa-

bled, his claim would still fail because he has not presented evidence that

Zeeco failed to reasonably accommodate his disability. Hennagir, 587 F.3d at

1261. A plaintiff must show that he requested an accommodation before he may

sue his employer for failing to provide one. Punt, 862 F.3d at 1050. Mr. Forrest

has, at most, shown that he met with his supervisors to discuss his job expec-

tations, his workload, and the stress and damage his job was causing him, but

there is no evidence that he expressly requested a modification of his nones-

sential job duties, a transfer, or any other accommodation. Dkt. 40 at 7-8. Ab-

sent that evidence, his failure-to-accommodate claim cannot proceed. Lincoln

». BNSF Ry. Co., 900 F.3d 1166, 1206 (10th Cir. 2018) (recognizing that “a

failure to accommodate claim does not arise until after” the employee re-

quests an accommodation (citation and quotation marks omitted)).

Mr. Forrest’s failure-to-accommodate claim fails for the additional

reason that he has not specifically identified the accommodation that Zeeco

unreasonably failed to make. A plaintiff cannot generically allege that an ac-

commodation should have been made; at the summary judgment stage, the

“plaintiff carries the burden of demonstrating the existence of a facially rea-

sonable accommodation.” Hennagir, 587 F.3d at 1264. Only after the plaintiff

clears this hurdle will the burden shift to the employer to show why it could

not grant the accommodation. Jd. Mr. Forrest does not pass this preliminary

barrier. Mr. Forrest argues that he tried to have a discussion with Zeeco about

° The fact that Zeeco encouraged Mr. Forrest to seek out and apply for open posi-

tions shows that Zeeco did not regard Mr. Forrest as disabled. Cf Nealey ». Water Dist. No.

1 of Johnson Cnty., 324 F. App’x 744, 749 (10th Cir. 2009) (holding that there was no evi-

dence that the defendant regarded the plaintiff as disabled when it offered her the oppor-

tunity to return to work in a different full-time position).

ws

No. 22-cv-427

whether everything he was doing was “actually essential” [Dkt. 40 at 15], but

there is no evidence that he asked to be relieved of any non-essential duties.

Cf. Mathews ». Denver Post, 263 F.3d 1164, 1168-69 (10th Cir. 2001) (recog-

nizing that “an employer is not required to accommodate a disabled worker

by modifying or eliminating an essential function of the job”). And although

Mr. Forrest now claims that Zeeco should have transferred him to another

position, there is no evidence that he affirmatively requested reassignment,

that there were vacant positions open at or around the time he resigned, or

that he was qualified to perform the essential functions of those positions. See

Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1179 (10th

Cir. 1999) (recognizing that, to establish a prima facie case, the plaintiff must

show that he requested accommodation “by reassignment to a vacant posi-

tion” for which he was qualified and “specifically identify and show” that the

position was “available within the company at or about the time the request

for reassignment was made”). Mr. Forrest’s claims cannot proceed without

evidence of the accommodation that was available to him but refused by

Zeeco.

Mr. Forrest has failed to present evidence that would permit a jury to

find that he is disabled for purposes of the ADA, and he has likewise failed to

present evidence that he requested and was denied a facially reasonable ac-

commodation for which he was qualified. Because he cannot establish these

essential elements, Zeeco is entitled to judgment as a matter of law on Mr.

Forrest’s failure-to-accommodate claim.

Mr. Forrest’s disparate-treatment claim" cannot survive for the same

reason that his failure-to-accommodate claim could not proceed. As before,

‘© Mr. Forrest asserts both a general discrimination claim as well as a claim for dis-

criminatory discharge. See Dkt. 2 at 7. Because wrongful discharge is a form of discrimina-

tion, the Court addresses these claims together.

19

No. 22-cv-427

Mr. Forrest has the burden of setting forth a prima facie case of discrimina-

tion by presenting evidence from which a jury could find that (1) he is disabled

for purposes of the ADA; (2) he can perform the essential functions of his job

with or without reasonable accommodation, and (3) Zeeco discriminated

against him because of his disability. White v. York Int’l Corp., 45 F.3d 357, 360

(10th Cir. 1995). And as discussed in Section IV(B), supra, Mr. Forrest cannot

show that he is disabled for purposes of the ADA. Because he has failed to

establish this essential element, Zeeco is entitled to summary judgment on

Mr. Forrest’s discrimination claim. Hennagir, 587 F.3d at 1261-62.

Even if Mr. Forrest could prove that he is disabled under the ADA,

summary judgment would be appropriate because there is no evidence of ac-

tionable discrimination by Zeeco. “|D]isparate-treatment claims under the

ADA allege that the employer discriminated against the employee by acting

in a discriminatory manner.” Exby-Stolley v. Bd. of Cnty. Commissioners, 979

F.3d 784, 796 (10th Cir. 2020) (emphasis omitted). “In order to demonstrate

‘discrimination,’ a plaintiff generally must show that he has suffered an ‘ad-

verse employment action because of the disability.’” E.E.0.C. ». C_R. Eng-

land, Inc., 644 F.3d 1028, 1038 (10th Cir. 2011) (quoting Mathews, 263 F.3d at

1167).

There is no evidence of any adverse employment action by Zeeco."

Mr. Forrest alleges that Zeeco assigned him a greater number of commodities

" Recently, the Supreme Court cautioned that courts must not impose a “height-

ened threshold of harm” when analyzing claims of disparate treatment under Title VII (and,

by extension, the ADA and other statutes construed congruently therewith). See Muldrow

v. City of St. Louis, Missouri, 601 U.S. 346, 353 (2024); see also C_R. England, Inc., 644 F.3d

at 1038, n.11 (recognizing that the ADA and Title VII are generally interpreted consist-

ently). In doing so, the Court indicated that the Tenth Circuit has previously employed an

inappropriately high standard. See Muldrow, 601 U.S. at 346, n.1 (quoting the “significant

change” language in Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998)); see also

Christians in the Workplace Networking Grp. yp. Nat?l Tech. & Eng?g Sols. of Sandia, LLC, No.

24-2072, 2025 WL 2114295, at *4, n.6 (10th Cir. July 29, 2025) (discussing the “lower bar”

(footnote continues)

No. 22-cv-427

than any other buyer in his department [Dkt. 40 at 18], but he has failed to

present any evidence that, as a result, his overall workload was greater than

the workloads of his colleagues. Without that evidence, he cannot prove he

was treated differently than his coworkers. Cf Jones v. Barnhart, 349 F.3d

1260, 1269-70 (10th Cir. 2003) (recognizing that “an increased workload

might constitute an adverse employment action” but holding that the plain-

tiff’s generalized, unsubstantiated claims of thicker files did “not rise to the

level of an adverse employment action”).’”

Nor can Mr. Forrest establish the existence of an adverse employment

action by pointing to the final written warning issued by Zeeco in February

2021.'* Warning letters and reprimands can support a prima facie case of dis-

crimination when they “adversely affect[ | the terms and conditions of the

plaintiff’s employment” by, for example increasing the likelihood that a plain-

tiff will be terminated or impacting his future employment opportunities. Me-

dina v. Income Support Div., New Mexico, 413 F.3d 1131, 1137 (10th Cir. 2005)."

But there is no evidence that written warning issued by Zeeco increased Mr.

applicable after Mu/drow). The Court is mindful of Mu/drow’s holding that, to be actionable,

an employer’s action “must have left [the plaintiff ] worse off, but need not have left [him]

significantly so.” Muldrow, 602 U.S. at 359. To the extent that this opinion relies on Tenth

Circuit precedent that predates Muldrow, it does so without relying on the prior legal stand-

ard employed in this Circuit, recognizing that Mr. Forrest has a problem of proof that would

preclude recovery under either the current or the former standard.

2 CF also Ford v. Jackson Nat’! Life Ins. Co., 45 F.4th 1202, 1222 (10th Cir. 2022)

(holding that realignment of sales territory could not establish an adverse employment ac-

tion in the absence of evidence showing that the plaintiff was affected in a way that her

colleagues were not); Humbles v. Principi, 141 F. App’x 709, 711-12 (10th Cir. 2005) (finding

no adverse employment action where the plaintiff “failed to show his workload increased”

in relation to other employees’ workloads).

8 ‘To the extent Mr. Forrest claims that Zeeco discriminated against him by placing

him on a performance improvement plan in June 2020, that claim is time-barred. See Sec-

tion III, supra.

4“ Cf Roberts v. Roadway Exp., Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) (finding an

adverse employment action where the “record indicate[d] that the more warnings an em-

ployee received, the more likely he or she was to be terminated”).

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No. 22-cv-427

Forrest’s chances of termination, limited his opportunities for transfer or ad-

vancement, or made Mr. Forrest “worse off” in any other way. Muldrow, 601

U.S. at 359. To the contrary, the evidence shows that, notwithstanding the

written warning, Mr. Forrest could have continued working at Zeeco and was

invited to apply for other positions at the company. Dkt. 38 at 10-11 (state-

ments of fact nos. 24, 27). A jury could not find that the final written warning

constituted an adverse employment action in the absence of any evidence or

explanation as to how that warning made Mr. Forrest “worse off” than he

was before. Muldrow, 601 U.S. at 359; cf Payan v. UPS, 905 F.3d 1162, 1174

(10th Cir. 2018) (concluding that “placement on an employee improvement

plan alone does not qualify as a materially adverse action”).

Mr. Forrest attempts to salvage his claim by arguing that he was con-

structively discharged by Zeeco. Constructive discharge is a type of adverse

employment action that can give rise to relief under the ADA. See Rivero v.

Bad. of Regents of Univ. of New Mexico, 950 F.3d 754, 761 (10th Cir. 2020). An

employee who resigns from his position may demonstrate that he was con-

structively discharged by showing that the discrimination he experienced was

so severe that he had no choice but to quit. /d. (quoting Green ». Brennan, 578

US. 547, 555 (2016) and Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th

Cir. 1998)). But Mr. Forrest has not cited any cases suggesting that an em-

ployee who is placed on a performance improvement plan, given a final writ-

ten warning, and assigned different (but not necessarily more excessive) re-

sponsibilities than his co-workers experiences the type of “objectively intol-

erable” conditions that can establish constructive discharge. Sanchez, 164

F.3d at 534. And this Court could not find any support for the proposition

that the conditions Mr. Forrest complains of, individually or collectively, ren-

dered his employment so intolerable that he had no choice but to resign. Cf

Rivero, 950 F.3d at 761 (concluding that a reasonable person would not “find

a job intolerable because of something that happened to him three years ear-

lier”); E.E.O.C. ». PVNF, L.L.C., 487 F.3d 790 (10th Cir. 2007) (concluding

qe

No. 22-cv-427

that evidence of harassment, allegedly unfair warning notice, and new pay

plan was not sufficient to show that the plaintiff’s working conditions were

intolerable). The Court concludes that Mr. Forrest has failed to present evi-

dence that he was constructively discharged or otherwise subjected to an ad-

verse employment action. Because he cannot establish this essential element,

Zeeco is entitled to summary judgment on his discrimination claim.

The Court further holds that Zeeco is also entitled to summary judg-

ment on Mr. Forrest’s claim for retaliation under the FMLA. To set forth a

claim for retaliation under that act, Mr. Forrest “must show ‘(1) that he en-

gaged in protected [activity], (2) that a reasonable employee would have

found the challenged action materially adverse, and (3) that a causal connec-

tion existed between the protected activity and the materially adverse ac-

tion.’” Ford v. Brennan, No. 21-4086, 2023 WL 5606233, at *5 (10th Cir. Aug.

30, 2023) (quoting Brown v. Austin, 13 F.4th 1079, 1090 (10th Cir. 2021)). In

the context of an FMLA-retaliation claim, a “material adverse action” is one

that would likely “dissuade a reasonable worker from making or supporting a

charge of discrimination.” Ford, 2023 WL 5606233, at *5 (citation and quota-

tion marks omitted)."°

For the reasons discussed in Section IV(C), supra, Mr. Forrest has

failed to demonstrate that he was subjected to an adverse employment action.

At most, Mr. Forrest has pointed to two remote disciplinary actions (neither

of which were related to his use of FMLA leave) and an unsubstantiated sug-

gestion that, because he was in charge of a larger number of commodities than

his co-workers, his workload was greater than his colleagues’ workloads. Mr.

Forrest’s evidence and argument is insufficient as a matter of law to establish

This standard differs somewhat from the standard applicable to discrimination

claims. See Muldrow, 601 U.S. at 348 (recognizing that the harm required to establish a re-

taliation claim is different than the harm required to establish a discrimination claim).

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No. 22-cv-427

that he was subjected to an adverse employment action. See Ford, 2023 WL

5606233, at “6 (holding that the plaintiff failed to meet his prima facie burden

of “articulating a qualifying adverse action” because, even though the plain-

tiff was issued letters of discipline and a notice of separation, the letters and

notice “did not relate to his use of FMLA leave”). Because Mr. Forrest can-

not demonstrate this essential component of his prima facie case, Zeeco is

entitled to summary judgment on Mr. Forrest’s FMLA-retaliation claim.

Finally, Mr. Forrest cannot recover on his FMLA-interference claim.

“To establish a claim of FMLA interference . . .an employee must show (1)

that [he] was entitled to FMLA leave, (2) that some adverse action by the

employer interfered with [his] right to take FMLA leave, and (3) that the em-

ployer’s action was related to the exercise or attempted exercise of her FMLA

rights.” Dalpiaz ». Carbon Cnty., Utah, 760 F.3d 1126, 1132 (10th Cir. 2014)

(citation and quotation marks omitted). Mr. Forrest cannot establish the sec-

ond element of his claim. The only specific conduct challenged by Mr. For-

rest is (1) Zeeco’s alleged failure to re-notify him of his FMLA rights, and (2)

Zeeco’s decision to “accept ] his resignation” even though Zeeco was in pos-

session of information that “may have qualified [Mr. Forrest] for an FMLA

leave of absence.” Dkt. 40 at 24. Neither of the two challenged actions con-

stitute actionable interference, which is ordinarily established by evidence

that the employer prevented the employee from taking the full amount of

leave available, refused to permit the employee to take leave, or refused to

reinstate the employee following leave. See Dalpiaz, 760 F.3d at 1132; Camp-

bell vy. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). There is

no evidence or allegation that Zeeco refused to allow Mr. Forrest to take leave

under the FMLA; to the contrary, the undisputed evidence shows that Zeeco

never denied any of Mr. Forrest’s requests to take time off work for medical

purposes and never reprimanded him for being absent. See Dkt. 38 at 9. The

record is devoid of any evidence that Zeeco prevented Mr. Forrest from

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No. 22-cv-427

taking leave available to him under the FMLA and, as a result, Mr. Forrest’s

retaliation claim cannot proceed.

Vv

For the reasons set forth above, Mr. Forrest’s OADA claims are time-

barred, and Mr. Forrest has failed to present evidence that, if true, would per-

mit a jury to find in his favor with respect to his ADA and FMLA claims.

Zeeco is entitled to judgment as a matter of law on all Mr. Forrest’s claims,

and its motion for summary judgment [Dkt. 38] is granted.

DATED this 23rd day of September 2025.

“Wl Wane —

JOHN D. RUSSELL

United States District Judge

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