Petition for Writ of Certiorari — Jana Garcia, Petitioner v. Wyoming Department of Health and Social Services
Supreme Court briefFeb 7, 2022
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APPENDIX
App. 1
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
-------------------------------------------------------------------------------------------------------------------------
JANA GARCIA,
Plaintiff - Appellant,
v.
WYOMING DEPARTMENT
OF HEALTH AND
SOCIAL SERVICES,
No. 20-8052
(D.C. No.
2:19-CV-00159-SWS)
(D. Wyo.)
Defendant - Appellee.
-------------------------------------------------------------------------------------------------------------------------
ORDER AND JUDGMENT*
-------------------------------------------------------------------------------------------------------------------------
(Filed Oct. 18, 2021)
Before TYMKOVICH, Chief Judge, LUCERO, Senior
Circuit Judge, and MATHESON, Circuit Judge.
Jana Garcia worked as a public health nurse for
the Wyoming Department of Health (the “Department”).
She clashed with her supervisors when they sought to
resolve mistakes she was making at work. The Department placed her on administrative leave pending
a fitness-for-duty evaluation. When the evaluation
* This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
App. 2
concluded she was incapable of performing her job, the
Department fired her. Ms. Garcia then sued the Department, alleging that the Department fired her
based on her disability, religion, and race. The district
court granted the Department’s motion for summary
judgment.
Ms. Garcia appeals the district court’s ruling on
her disability-and religious-discrimination claims.1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
BACKGROUND
The district court provided a detailed account of
the facts. We provide a summary of the facts relevant
to this appeal.
Ms. Garcia has been diagnosed with anxiety and
post-traumatic stress disorder. She worked as a public
health nurse for the Department in Glenrock, Converse County, from March 2016 until the termination
of her employment in February 2018. For the bulk of
this time, she was the only nurse in the Glenrock office.
She had no blemishes on her record during the first 18
months of her employment. In two instances, Ms. Garcia, who practiced Messianic Judaism, was asked to
participate in two Christian holiday events.2 She also
Ms. Garcia does not appeal the dismissal of her racediscrimination claim.
2
The parties dispute whether attendance at these events
was mandatory. Ms. Garcia attended one of the events.
1
App. 3
alleged that her colleagues called her “not normal.”
App., Vol 4 at 36.
In September 2017, one of Ms. Garcia’s colleagues
asked her to reconcile the vaccine inventory in the
Glenrock office. Although she agreed, she responded
negatively to the request. Over the next month, she
failed to input her time and tasks in the Department’s
system, missed scheduled trainings and workdays, and
failed to follow safety protocols regarding the disposal
of used needles during a flu vaccine clinic. After the flu
clinic incident, her supervisor removed her from patient-care services but allowed her to perform administrative work. When her supervisor explained that
this step was taken to avoid her making an error with
a patient, Ms. Garcia asked whether the supervisor
had considered that this decision might cause Ms. Garcia to harm herself.
A few days later, Ms. Garcia and her supervisors
exchanged several text messages. When her supervisors failed to respond for a few hours, Ms. Garcia sent
another message berating them for failing to respond,
accusing them of differential treatment because she is
“a Hispanic middle eastern Jewish woman with a medical condition,” and telling them she would “be contacting a civil rights attorney.” App., Vol. 1 at 118-19. That
day, Ms. Garcia also received a completed physician
certification form requesting that she be permitted to
close her office door to accommodate her disabilities.
She sent the form to human resources.
App. 4
Two days later, after concluding that Ms. Garcia’s
behavior posed a risk to patient safety, the senior administrator of Ms. Garcia’s division and a human resources administrator placed her on administrative
leave pending a fitness-for-duty evaluation by a physician.
In December 2018, Dr. Gerald Post, the physician
who examined Ms. Garcia, submitted his evaluation to
the Department. He concluded she was not fit to perform her job duties. Dr. Post wrote that Ms. Garcia
could not satisfy “[b]asic minimum standards of abilities and behaviors in order to perform employment in
almost any setting.” App., Vol. 3 at 178-79. He concluded that “it appeared to be unlikely that Ms. Garcia[ ] would quickly recover from her condition” in part
because “[s]he clearly underestimated the impact of
her symptoms on her ability to perform her job.” Id. at
179.
In January 2018, the director of the Department
sent Ms. Garcia a notice of intent to dismiss her
based on Dr. Post’s evaluation. The notice offered Ms.
Garcia an opportunity to respond and to dispute the
evaluation. In her response, she failed to address the
evaluation and instead accused her coworkers and
supervisors of discriminating against her. After considering her response, the director terminated her employment.
Ms. Garcia filed this action alleging disability,
race, and religious discrimination. The first paragraph
of her complaint cited the Rehabilitation Act of 1973,
App. 5
but the cause of action alleging disability discrimination cited only the Americans with Disabilities Act of
1990 (the “ADA”). She also brought retaliation and discrimination claims under Title VII of the Civil Rights
Act of 1964.
The Department moved for summary judgment,
which the district court granted. The court determined
the Department was entitled to sovereign immunity as
to the ADA claim. Even though the court concluded
that Ms. Garcia did not plead a Rehabilitation Act
claim, it analyzed Ms. Garcia’s disability discrimination claim anyway. It held that she failed to establish a
prima facie case and failed to show that the Department’s nondiscriminatory reason for firing her was
pretext. Turning to the Title VII claims, the court held
Ms. Garcia had failed to show pretext for her retaliation claim. Finally, the court ruled in the Department’s
favor on the religious discrimination claim after it held
that Ms. Garcia failed to make out a prima facie case
or establish pretext.
Ms. Garcia timely appealed.
II.
A.
DISCUSSION
Standard of Review
We review a district court’s grant of summary
judgment de novo, applying the same standards as the
district court under Federal Rule of Civil Procedure
56(a). See Jordan v. Maxim Healthcare Servs., Inc., 950
F.3d 724, 730 (10th Cir. 2020). We draw all reasonable
App. 6
inferences and resolve factual disputes in favor of Ms.
Garcia. See Yousuf v. Cohlmia, 741 F.3d 31, 37 (10th
Cir. 2014). We will affirm “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).
B.
Ms. Garcia’s ADA Claim
Ms. Garcia brought a disability discrimination
claim under the ADA. We agree with the district court
that the Department is entitled to sovereign immunity.
“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by
private individuals in federal court.” Bd. of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356, 363 (2001). This guarantee is subject to three exceptions, see Muscogee
(Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir.
2012), but the only relevant exception here is whether
the State has waived its sovereign immunity under the
ADA.
Ms. Garcia argues the State waived its sovereign
immunity under the ADA when it accepted Rehabilitation Act funds. But we rejected this argument in Levy
v. Kansas Department of Social and Rehabilitation Services, 789 F.3d 1164, 1170-71 (10th Cir. 2015). We explained that, despite the close link between the ADA
and the Rehabilitation Act, “the close relationship between the two statutes is not sufficient to conclude that
the Rehabilitation Act’s waiver provisions apply by implication to the ADA.” Id. at 1170; see also Edelman v.
App. 7
Jordan, 415 U.S. 651, 673 (1974) (“[W]e will find waiver
only where stated by the most express language or by
such overwhelming implications from the text as (will)
leave no room for any other reasonable construction.”
(quotations omitted)). The Department is therefore entitled to sovereign immunity on Ms. Garcia’s ADA
claim.3
C.
Ms. Garcia’s Title VII Claims
Title VII of the Civil Rights Act of 1964 prohibits
employers from discriminating “on the basis of race,
color, religion, sex, or national origin.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009). Employers cannot discriminate “in hiring, firing, salary structure, promotion
and the like.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570
U.S. 338, 342 (2013). Nor can they retaliate against employees “on account of an employee’s having opposed,
complained of, or sought remedies for, unlawful workplace discrimination.” Id.
Ms. Garcia argues that her complaint also alleged a Rehabilitation Act claim. But her one claim of disability discrimination
cites only the ADA and does not mention the Rehabilitation Act.
App., Vol. 1 at 12-13. We agree with the district court that Ms.
Garcia “did not base any of her causes of actions on” the Rehabilitation Act, even though she mentioned it in the opening paragraph of her complaint. App, Vol. 5 at 61 n.6. On appeal, Ms.
Garcia does not address the district court’s conclusion that she
did not plead a Rehabilitation Act claim, so she waived this argument.
Even assuming Ms. Garcia pled a claim under the Rehabilitation Act, we agree with the district court’s analysis of that claim
and would likewise affirm.
3
App. 8
Ms. Garcia alleged two Title VII violations—that
the Department (1) retaliated when it placed her on
administrative leave after she told her supervisors
that she would contact a civil rights attorney, and
(2) discriminated when it fired her because of her religion.
We apply the McDonnell Douglas burden-shifting
framework to Ms. Garcia’s Title VII claims. See Ibrahim v. Alliance for Sustainable Energy, LLC, 994 F.3d
1193, 1196 (10th Cir. 2021); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First,
Ms. Garcia must establish a prima facie case of discrimination by showing that (1) she belongs to a protected class, (2) she suffered an adverse employment
action, and (3) the challenged action took place under
circumstances giving rise to an inference of discrimination. EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th
Cir. 2007). Once she makes this showing, “the burden
shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action.” Id. If the
Department makes this showing, the burden shifts
back to Ms. Garcia, who must “show that there is a genuine issue of material fact as to whether the employer’s
proffered reasons are pretextual.” Id.
1. Retaliation Claim
Ms. Garcia appears to base her retaliation claim
on her text message to her supervisors accusing them
of differential treatment because she was “a Hispanic middle eastern Jewish woman with a medical
App. 9
condition,” and telling them that she would “be contacting a civil rights attorney.” App., Vol. 1 at 118-19.
She argues the Department retaliated against her by
removing her from patient services shortly after receiving this message.
The district court granted the Department’s motion for summary judgment because she failed to show
pretext. The court assumed she had made out a prima
facie case. It determined that the Department’s proffered reason for putting her on administrative leave—
patient safety—was nondiscriminatory.4 The court then
held that Ms. Garcia failed to show the proffered reason was pretextual. We agree.
The Department placed Ms. Garcia on administrative leave after it determined that she posed a safety
risk to her patients. By failing to point to any portion
of the record to suggest pretext, she inadequately
briefed this issue and has thus waived her argument.
See Burke v. Regalado, 935 F.3d 960, 1014 (10th Cir.
2019). In any event, Ms. Garcia has not demonstrated
that this reason was pretextual. She fails to direct us
to “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons.” Fye v.
For retaliation claims, an adverse employment action “is
not limited to discriminatory actions that affect the terms and
conditions of employment.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 64 (2006).
4
App. 10
Oklahoma Corp. Com’n, 516 F.3d 1217, 1228 (10th Cir.
2008) (quotations omitted).
2. Religious Discrimination Claim
The district court granted summary judgment to
the Department on Ms. Garcia’s religious discrimination claim. It concluded that, for the purposes of this
claim, Ms. Garcia’s firing was the only adverse employment action. The court determined that Ms. Garcia did
not make out a prima facie case because she failed to
link the alleged discrimination—the Department’s
request that she participate in Christian holiday
events—with the termination of her employment. The
court also held she failed to establish pretext.
Ms. Garcia argues she satisfied her burden to
make a prima facie case of discrimination. But even if
that were true, she has failed to show that the Department’s nondiscriminatory justification for her firing—
that Dr. Post found her not fit for duty—was pretextual. The only evidence Ms. Garcia musters is her
testimony that (1) her supervisors allegedly forced her
to participate in Christian holiday events and (2) her
colleagues called her “not normal.”
In evaluating pretext, we “look at the facts as
they appear to the person making the decision to terminate.” Kendrick v. Penske Transp. Servs., Inc., 220
F.3d 1220, 1231 (10th Cir. 2000). The decisionmaker
here—the director of the Department—was unaware
of the alleged behavior of Ms. Garcia’s supervisors and
colleagues. He was not made aware of Ms. Garcia’s
App. 11
religion until she responded to the notice of intent. We
thus do not see a triable issue regarding whether his
proffered reason for the termination of her employment was pretextual.
III.
CONCLUSION
We affirm.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
App. 12
UNITED STATES DISTRICT COURT
DISTRICT OF WYOMING
-----------------------------------------------------------------------
JANA GARCIA,
Plaintiff,
v.
STATE OF WYOMING,
DEPARTMENT OF HEALTH
AND SOCIAL SERVICES,
Case No.
19-CV-159-SWS
Defendant.
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT
(Filed Aug. 25, 2020)
This matter comes before the Court on the Defendant’s Motion for Summary Judgment (Doc. 25) and
the Plaintiff ’s Motion for Partial Summary Judgment
(Doc. 28). The parties filed responses (Docs. 30, 40), and
the Court heard oral arguments on August 12, 2020
(Doc. 41). Having considered the parties’ arguments,
reviewed the record herein, and being otherwise fully
advised, the Court finds and concludes the Defendant’s
motion should be granted and the Plaintiff ’s motion
denied.
App. 13
INTRODUCTION
Plaintiff Jana Garcia worked as a public health
nurse in Glenrock, Converse County, Wyoming, from
March 2016 until she was involuntarily terminated in
February 2018. Her employer was the Wyoming Department of Health, Public Health Division. She contends the Department discriminated against her on
the basis of race, religion, and disability, created a hostile work environment, and then retaliated against
her for her opposition to the discrimination. She cites
Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, and the Americans with Disabilities
Act of 1990 in her complaint as the vehicles for her
claims. (Compl. ¶ 1.) Ms. Garcia seeks partial summary
judgment holding the Department liable for disability
discrimination. The Department seeks summary judgment on all issues.
STANDARD OF REVIEW
“The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute
is genuine “if there is sufficient evidence on each side
so that a rational trier of fact could resolve the issue
either way,” and it is material “if under the substantive
law it is essential to the proper disposition of the
claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th
Cir. 2013) (internal quotation marks omitted). Testimony “grounded on speculation does not suffice to
App. 14
create a genuine issue of material fact to withstand
summary judgment.” Bones v. Honeywell Int’l, Inc., 366
F.3d 869, 876 (10th Cir. 2004).
In considering a summary judgment motion, the
Court views the record and all reasonable inferences
that might be drawn from it in the light most favorable
to the party opposing summary judgment. Dahl v.
Charles F. Dahl, M.D., P.C. Defined Ben. Pension Trust,
744 F.3d 623, 628 (10th Cir. 2014). “Cross-motions for
summary judgment are to be treated separately; the
denial of one does not require the grant of another”
Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th
Cir. 1979)
The moving party has “both the initial burden of
production on a motion for summary judgment and the
burden of establishing that summary judgment is appropriate as a matter of law.” Kannady v. City of Kiowa,
590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor
v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th
Cir. 2003)). If the moving party carries this initial burden, the nonmoving party may not rest on its pleadings, but must bring forward specific facts showing a
genuine dispute for trial as to those dispositive matters for which it carries the burden of proof. Id. (citing
Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)).
App. 15
FACTS1
Ms. Garcia started as the public health nurse in
Glenrock, Converse County, Wyoming, on March 1,
2016. (Doc. 32-1 ¶ 1.) Her employer was Defendant
State of Wyoming, Department of Health and Social
Services (“the Department”). She is Hispanic, a practicing Jew, and she qualifies as an individual with a
disability under the ADA due to Post-Traumatic Stress
Disorder (PTSD) from her childhood, which manifests
as an anxiety disorder. (Compl. ¶¶ 6-7.) She has been
a registered nurse since 2004. (Doc. 32-1 ¶ 2.) From
Ms. Garcia’s hire until September 2017, she received
positive performance reviews and met her employment
expectations. (Ohnstad Depo. 8:3-17.)2 For the bulk of
her employment, she was the lone public health nurse
in Glenrock, Wyoming, as the other Converse County
public health nurses worked in the Douglas, Wyoming,
public health office. (Garcia Depo. 72:5-73:8.)
The hiring committee for Nurse Manager
On the same day Ms. Garcia started working for
the Department, Melissa Ohnstad was promoted
from Nurse Manager to Regional Supervisor. (Ohnstad
Unless otherwise noted, these facts are uncontested. There
are many additional incidents that both sides complain about and
remain disputed, but the Court finds those incidents immaterial
to the summary-judgment decision at hand.
2
The complete transcripts for the four depositions cited in
this Order (for Ms. Garcia, Matthew Nix, Melissa Ohnstad, and
Kristal Skiles) are found in the record at Documents 32-6 through
32-9.
1
App. 16
Depo. 6:9-12.) The Nurse Manager is the direct supervisor of the public health nurses within a county. (Ohnstad Depo. 6:4-16.) The Regional Supervisor oversees
several counties in one quadrant of the state. (Ohnstad
Depo. 4:18-22.) It took a while to hire a new Nurse
Manager to replace Melissa Ohnstad, so Ohnstad essentially performed double duty for over a year. (Ohnstad Depo. 17:9-18:4.) A team of five people comprised
the hiring committee for hiring a new Nurse Manager:
Ohnstad, Lindsay Huse (Ohnstad’s supervisor), a Converse County Commissioner, and two staff nurses with
seniority. (Ohnstad Depo. 17:11-21, 18:13-15.) When
the position was first opened, Ms. Garcia applied for
the job. (Ohnstad Depo. 18:5-15; Garcia Aff. ¶ 4.) An
applicant was hired for the Nurse Manager position in
Summer 2016, but that person stayed only a short time
before leaving. (Ohnstad 17:22-18:3.) When opening
the position back up, Melissa Ohnstad kept the same
hiring committee. (Ohnstad Depo. 18:5-13.) Eventually, Kristal Skiles was hired to become the new Nurse
Manager, and she started in September 2017. (Ohnstad 16:25-17:8; Skiles Depo. 5:21-24.)
September 21, 2017 email exchange with Jennifer Ullery
Workplace problems began to grow with a September 21, 2017 email exchange between Ms. Garcia and
Jennifer Ullery. Jennifer Ullery, a nurse in the Douglas
office and the vaccine/immunization coordinator for
Converse County, emailed Ms. Garcia asking her to
reconcile the vaccine inventory in the Glenrock office
App. 17
so that Ullery could order the necessary stock for the
county. (Doc. 26-1 p. 33; Ohnstad Depo. 8:19-9:5.) Ms.
Garcia says this email “was not a ‘routine request’ this
was workplace harassment. The task Ullery was asking me to do was solely her responsibility.” (Garcia Aff.
¶ 9; see Garcia Depo. 102:6-18.) Melissa Ohnstad testified that reconciling the vaccines in Glenrock was indeed part of Ms. Garcia’s job because she was the sole
nurse in that office (Ohnstad Depo. 70:9-71:1, 71:6-15),
but this dispute is not material to Ms. Garcia’s claims
of discrimination. What is material is Ms. Garcia’s response to Ullery’s email, where Ms. Garcia answered
the vaccine-related inquiries and then wrote the following:
I find your email to be very negative and it
portrays me as a very ignorant person. Just
last month I emailed and addressed with you
personally your very rude demeanor towards
me when I called the Douglas office. It took
you two or three days to message me back, yet
you messaged Nick who was in my office all
day long, so I know you are capable of communication when it suits you.
(Doc. 26-1 p. 34; Garcia Depo. 107:11-108:17.) Melissa
Ohnstad and Kristal Skiles were copied on this email
exchange and felt Ms. Garcia was unprofessionally
“snapping back” at Jennifer Ullery. (Garcia Depo.
108:17-22.) Also, within her response, Ms. Garcia
notes, “With the volume of patients and client that I
have in Glenrock it[’]s not an easy load to carry. I would
appreciate a little understanding and support from
App. 18
you.” (Doc. 26-1 p. 34.) The topic of Ms. Garcia’s workload would surface again soon.
September 22, 2017 first meeting with Kristal
Skiles
On September 22, 2017, Melissa Ohnstad and
Kristal Skiles met with Ms. Garcia. (Doc. 26-1 p. 40.) It
was Ms. Skiles’ first time meeting with Ms. Garcia in
person. (Id.) Among other things, they spoke about how
Ms. Garcia was feeling overwhelmed by her workload.
(Id.) Kristal Skiles agreed to start working two days
per week in the Glenrock office to give Ms. Garcia some
additional support. (Id.) Ms. Garcia would soon come
to resent her direct supervisor’s presence at the Glenrock office, though, believing Skiles had been “put on
duty to watch” Ms. Garcia (Garcia Depo. 92:24-93:10,
94:16-95:6; Garcia Aff. ¶ 11), which caused Ms. Garcia
“to feel uncomfortable and have anxiety attacks”
(Compl. ¶ 8).
September 25-26, 2017 email exchange with
Kristal Skiles
On September 25, 2017, Kristal Skiles sent an
email to Ms. Garcia informing her she was not in compliance with inputting her time and tasks into the
“PHNI” program in a timely manner, as required by
policy. (Doc. 26-1 p. 38.) PHNI stands for “Public
Health Nurse Informatics” and it is the statewide electronic system that public health nurses use to record,
track, and code their time. (Ohnstad Depo. 10:15-23,
App. 19
28:8-10; Garcia Depo. 112:7-13.) Per state policy, the
Department’s public health nurses have 72 hours (3
days) to input their activities into the PHNI system
(Skiles Depo. 26:24-27:6), and timely and accurate documentation of nursing activities is one of the essential
job duties for a public health nurse (Doc. 26-5 p. 23).
After informing Ms. Garcia she was out of compliance,
Kristal Skiles’ email asked her to rectify the matter
“and be diligent in the future about getting this done.
Also if there is a barrier that is preventing you from
being in compliant [sic] let me know.” (Doc. 26-1 p. 38.)
Kristal Skiles and Melissa Ohnstad then followed up
with Ms. Garcia that day over the phone where they
“gave her some tips for time management and offer[ed]
support for her to be able to be successful.” (Doc. 26-1
p. 40.)
Ms. Garcia responded via email that day, agreeing
she was a day behind on her PHNI reporting. (Doc. 261 p. 38.) She also noted several “barriers” to her timely
PHNI reporting, including “the volume of patients” and
“not having a full time administrative assistant in the
Glenrock office” or a “cleaning person to complete daily
housekeeping.” (Id. (sic).) She noted, though, that she
is generally “able to overcome those barriers without
incident.” (Id.)
Ms. Garcia followed up the next morning (September 26, 2017) on the same subject via email to both
Melissa Ohnstad and Kristal Skiles. (Doc. 26-1 p. 36.)
She started by asserting that she would not be attending a training that was scheduled in Laramie, Wyoming, for that day, nor would she be at work in the
App. 20
Glenrock office because she was not feeling well. (Id.)
She then addressed Skiles’ email more directly, stating,
“I really have a problem with how this PHNI situation
was addressed with me.” (Id.) She also discussed her
heavy workload in the Glenrock office and then noted:
Reading [Skiles’] email makes me feel horrible or better yet explained, non compliant, non
diligent, and questioned about barriers the we
all spoke about just last Friday (after Jen’s
email, that also degraded me to feel like I left
my immunization supply in dire straights, unable to collaborate a private Hep A booster
and so on and so forth). . . .
Ufortunately, I feel pretty let down, unappreciated and devalued. I realize this is a compliance issue that has to be reported. I’m not
minimizing that at all. Sometimes, situations
should be looked at individually and personalized approach to improve the situation can
make all the difference in the world.
(Id. (sic throughout).)
September 27, 2017 Text Messages to Melissa
Ohnstad
Ms. Garcia texted Melissa Ohnstad on the morning of September 27, 2017 to complain about Kristal
Skiles. (Doc. 26-2 p. 4.) She stated in part:
Melissa . . . I need to get this off my chest. I
hoped to tell you in person or over the phone.
Im not going to be able to work for someone
who corrects me with persecution. I will be in
App. 21
panic mode daily and that makes me unwell. . . . I agree i needed corrected about my
phni, but you don’t tell the most diligent phn
[public health nurse] Glenrock has ever had
that she needs to be “diligent”. Glenrock didnt
even know public health existed until i got out
there and promoted their health. That’s not
gloating Thats the truth. I have an anxiety
disorder because of that, I need a positive supportive (glass is half full) leader or I will fail
and thats not an option to me.
(Id. (sic throughout).)
Melissa Ohnstad responded via text message later
in the day, saying she and Kristal Skiles would be
meeting with Ms. Garcia on the following Monday
morning, October 2, 2017, “to discuss the situation.”
(Doc. 26-2 p. 6.)
October 2, 2017 meeting with Melissa Ohnstad
and Kristal Skiles
The October 2, 2017 meeting underlies many of
Ms. Garcia’s complaints. That morning, Melissa Ohnstad and Kristal Skiles drove to the Glenrock public
health office to meet with Ms. Garcia. Skiles and Ohnstad met with Ms. Garcia to address: (1) the Glenrock
workload; (2) reports from the building administrator
that Ms. Garcia was entering and leaving the building
sporadically at odd, non-working hours; (3) reports
from another employee that Ms. Garcia would leave
the office often during the day and not return for long
periods, though no out-of-office appointments were
App. 22
scheduled for those times; and (4) Ms. Garcia’s daughter and granddaughter spent a lot of time at the office,
even for “hours at a time.” (Doc. 26-1 p. 40.) Ms. Garcia
describes this meeting as “the red flag interrogation.”
(Garcia Depo. 130:8-9.) She testified this meeting “was
confrontational. It was not a meeting that was dignified, not even an informal counseling.” (Garcia Depo.
97:14-15.) Of significance to this case, Ms. Garcia alleges Melissa Ohnstad told Ms. Garcia she was “not
normal” compared to her co-workers and “unstable.”
(Garcia Depo. 89:18-90:6, 95:13-19.)3
In a follow-up email that same day, Kristal Skiles
wrote to Ms. Garcia, “After reviewing our discussion
this morning about your anxiety disorder, I would like
to see if there are any accommodations we can offer to
assist you?” (Doc. 26-3 p. 7.) If Ms. Garcia responded to
Skiles’ question, the response does not appear in the
record. Ms. Garcia may have filed a complaint with the
Equal Employment Opportunity Commission (EEOC)
on or about October 3, 2017, claiming discrimination.4
(Garcia Aff. ¶ 21.) That EEOC complaint also does not
Ms. Garcia testified this meeting occurred on October 9,
2017, but it appears she later amended it to occurring on October 2, 2017. (Garcia Depo. 124:14-21, 130:23-131:8.) Other documents in the record suggest it in fact occurred on October 2,
2017. (Garcia Aff. ¶ 14; Doc. 26-4 p. 2; Skiles Depo. 8:23-9:3.)
4
Ms. Garcia’s deposition suggests she actually complained
to the EEOC after she was taken off direct patient care several
days later or she may have complained on October 13, 2017 (Garcia Depo. 91:16-92:3, 183:16-23; 282:14-22), but the record remains unclear on the timing of this complaint.
3
App. 23
appear in the record, but the Department has not contested it.
Ms. Garcia’s flu vaccination clinic on October
5, 2017
Kristal Skiles observed and recorded Ms. Garcia’s
work for the entire day on October 5, 2017 (a Thursday). They attended an off-site flu clinic for a local company. (Skiles Aff. ¶ 16; Doc. 26-3 pp. 12-13; Garcia Aff.
¶ 17.5) Ms. Garcia forgot to bring a “sharps container”
(a plastic, lockable container that holds used hypodermic needles) to the clinic for the safe storage of the
used needles, which she agreed could be a safety issue.
(Garcia Depo. 140:12-20.) She placed the used needles
in cardboard box but testified she would not want to
repeat the practice. (Garcia Depo. 140:21-141:12.) Kristal Skiles documented this matter (Doc. 26-3 p. 13) and
reported it to Melissa Ohnstad (Ohnstad Depo. 10:2-8).
It is disputed whether Kristal Skiles gave any flu
shots at that clinic and whether she also used the cardboard box to dispose of used needles (compare Garcia
Aff. ¶ 17 with Skiles Depo. 24:8-16), but this dispute is
not material to Ms. Garcia’s claims of discrimination.
It is also disputed whether Ms. Garcia failed to sanitize
a person’s arm with alcohol before giving a flu shot on
Ms. Garcia’s affidavit alleges this flu clinic occurred on October 6, 2017. (Garcia Aff. ¶ 17.) Other records reflect it occurred
a day earlier. (Doc. 26-3; Skiles Aff. ¶ 16.) Additionally, Kristal
Skiles was also at the flu clinic and she worked in Glenrock on
Tuesdays and Thursdays, so it appears this flu clinic was on
Thursday, October 5, 2017.
5
App. 24
this same day (compare Doc. 26-3 p. 12 with Garcia
Depo. 138:7-19), but again this dispute is not material
to the summary-judgment analysis.
Ms. Garcia is taken off direct patient care
On October 6, 2017, Kristal Skiles called Ms. Garcia
and informed her she would be taken off direct patient
care services for the time being “for patient safety reasons,” but she would remain on administrative-type
duties. (Garcia Depo. 145:3-15; Doc. 26-3 p. 15.) Kristal
Skiles told Ms. Garcia she “had concerns about [Ms.
Garcia’s] emotional state yesterday and the possibility
of making an error with a patient.” (Doc. 26-3 p. 15.)
Skiles reported that during the October 6, 2017 phone
call, Ms. Garcia said that “although we are concerned
that she may harm a patient have we ever thought she
amy harm herself because of our approach to her.”
(Doc. 26-3 p. 15 (sic); see also Garcia Depo. 146:11-16
(Garcia admitting she did make this self-harm comment).)
Melissa Ohnstad was part of the decision to remove Ms. Garcia from direct patient care, and testified
that “when [Ms. Garcia] discussed that she was not
feeling well, not thinking clearly, not sleeping and having anxiety, we pulled her off of patient care so that it
would be at the best interest of her and the patient.”
(Ohnstad Depo. 55:6-9; see also Garcia Depo. 146:8
(“I was having problems sleeping.”); Doc. 26-3 p. 18
(Ohnstad’s contemporaneous notes of an October 10,
2017 phone call where Ms. Garcia “stated several times
App. 25
that she is not her normal self and had been off her
meds for 22 days”).) In an October 13, 2017 text message from Ms. Garcia to Skiles and Ohnstad, Ms. Garcia asserted her physician thinks Ms. Garcia’s “memory
loss is from the flexeril.” (Doc. 26-2 p. 8.)
Ms. Garcia’s October 13, 2017 text message
Throughout the day of October 13, 2017, Ms. Garcia sent a number of text messages to Skiles and
Ohnstad. (Doc. 26-2 pp. 7-17.) Most of those messages
attempted to account for her entries and exits from the
building at odd, non-work hours, which was a topic at
the October 2, 2017 meeting. However, later that evening, it appears Ms. Garcia became upset at Ohnstad’s
lack of response:
Melissa . . . never in 19 months has there been
a time you didn’t text me back. Isnt their a
chain of command? Being i cant get any answers how do i get ahold of Lindsey [Lindsay
Huse, Ohnstad’s supervisor]? What is going
on?? You asked me of my whereabouts and I’m
researching everything and doing my best to
provide you answers. Isnt that what you
wanted?? I have an account of every questionable [flag emoji] now with proof of my whereabouts. Pat Reiter [the predecessor public
health nurse in Glenrock and then a nurse at
a Glenrock retirement center] lied about me
and so did Nick [Larramendy]. But I guess
their word means more than mine. Why? I
can’t fathom in my head the lies about me or
even why my integrity was questioned, or
App. 26
what made it okay to intetigate me. what is
it about “me” thay really threw up a [flag
emoji]??? I’ve never done anything to have my
integrity questioned and nobody wants to give
me answers. The only thing that makes me
different is that I’m a Hispanic middle eastern
Jewish woman with a medical condition. It is
NOT OKAY to pick on that group of people or
tell them they throw up red flags. Shame on
you for your participation. I will be contacting
a civil rights attorney. This is not okay.
(Doc. 26-2 pp. 15-16 (sic throughout).) Ms. Garcia alleges this text message comprises her protected opposition to discrimination for which she was retaliated
against. (Garcia Depo. 182:16-183:3.) Melissa Ohnstad
responded by text: “Jana please put all of your information in writing and email it to Kristal [Skiles] and
I. I will send it to Lindsay [Huse], following proper
chain of command. Thank you.” (Doc. 26-2 p. 16.)
October 16, 2017 email to Skiles and Ohnstad
Ms. Garcia emailed Kristal Skiles and Melissa
Ohnstad on October 16, 2017, stating, “In regards to
the recent mobbing that I endured involving my coworkers, I would like to respectfully request that Nick
[Larramendy] no longer work in the Glenrock office.”
(Doc. 26-3 p. 21.) Ms. Garcia testified that the “recent
mobbing” was in reference to all her complaints, the
“whole thing.” (Garcia Depo. 151:17-153:3.) Melissa
Ohnstad felt Ms. Garcia’s recent remarks and behavior
had been inappropriate, so she forwarded this email to
App. 27
her supervisor, Lindsay Huse, and sought guidance on
how to address the situation. (Doc. 23-3 p. 21.)
Ms. Garcia’s request for a reasonable accommodation under the ADA
On October 13, 2017, Ms. Garcia’s physician, Dr.
Casey Starks, completed a “Physician Certification”
form. (Doc. 26-3 pp. 26-33.) Dr. Starks stated in part,
Jana is currently suffering from an exacerbation of her anxiety disorder. I think it is reasonable to allow her to close her office door &
de-escalate in the event of a panic attack. As
she works with her counselor & we adjust her
medical management this should become less
often.
(Doc. 26-3 p. 28.) Ms. Garcia faxed this completed form
to the Human Resources Department in the afternoon
of October 17, 2017. (Doc. 26-3 p. 33.)
October 19, 2017 placement on paid administrative leave
Stephanie Pyle, the Senior Administrator for the
Public Health Division in Wyoming, learned from
Kristal Skiles and Melissa Ohnstad about the issues
concerning Ms. Garcia. (Pyle Aff. ¶ 5.) Pyle and the Department’s Human Resources Administrator “decided
a fitness for duty examination for Ms. Garcia would be
appropriate.” (Id.) On October 19, 2017, Ms. Garcia was
placed on paid administrative leave pending the fitness-for-duty evaluation. (Doc. 26-3 pp. 34-35.) “Given
App. 28
the timing of Garcia’s placement on administrative review leave . . . , the Department did not continue the
interactive accommodation process regarding Garcia’s
request to shut her door.” (Pyle Aff. ¶ 25; see also Nix
Depo. 23:9-21 (noting that Ms. Garcia’s request to close
her door in the event of a panic attack became “a moot
point” because “she was no longer in the office”).)
Human Resources’ investigation into Ms. Garcia’s
complaints
After being placed on paid administrative leave,
Ms. Garcia submitted a series of letters to Matthew
Nix, the Human Resources Manager for the Department, which detailed her side of the events and alleged
many complaints against her supervisors and coworkers. (Doc. 26-4 pp. 11-45.) Nix conducted an investigation into the human-resources-related complaints
contained in Ms. Garcia’s letters, but found those complaints could not be verified. (Doc. 26-4 pp. 1-7.) In his
“Other Findings,” though, Nix said,
It should be noted that there were many inconsistencies recognized in Ms. [Garcia’s] letters to the Human Resources Office. It is also
noted that in her letters to the Human Resources office, Ms. [Garcia] admits to several
instances of poor work performance and misconduct. Ms. [Garcia] also admits to using her
work computer for personal use and being in
the office outside of normal business hours.
App. 29
(Doc. 26-4 p. 7.) In her affidavit, Ms. Garcia repeatedly
asserts Nix’s investigation was inadequate. (See Doc.
32-1.)
Fitness-for-duty evaluation by Dr. Post
The Department hired Dr. Gerald Post, a licensed
psychologist, to conduct the fitness-for-duty evaluation
for Ms. Garcia. (Nix Depo. 14:11-16.) Dr. Post conducted a clinical interview of Ms. Garcia on November
2, 2017. (Doc. 14-1 p. 3.) Additionally, Dr. Post and/or
Dr. Nathanael Taylor (a resident in psychology working under Dr. Post’s supervision) interviewed Kristal
Skiles and Melissa Ohnstad. (Id.) Dr. Post also administered several psychological tests to Ms. Garcia, some
general and at least one specific to PTSD, and reviewed
several records provided to him. (Id.) In a report dated
December 6, 2017, Dr. Post concluded Ms. Garcia was
unable to perform several of her employment duties
“on a consistent basis due to the symptoms and features of PTSD, with Panic Attacks that were persistently present.” (Doc. 14-1 p. 10.) Consequently, he
determined she was, at that time, not fit for duty as a
public health nurse and “it appeared to be unlikely
that Ms. [Garcia] would quickly recover from her condition.” (Id. p. 11.) Dr. Post found Ms. Garcia “clearly
underestimated the impact of her symptoms on her
ability to perform her job” and opined that “it would be
reasonable to expect an indefinite period of similar
functioning.” (Id.) Ms. Garcia strongly disagrees with
Dr. Post’s report and contends his “conclusion was
App. 30
influenced by Ohnstad and Skyles [sic] unfounded allegations.” (Garcia Aff. ¶ 22.)
Ms. Garcia’s employment termination
Dr. Post’s report and various other documents
were provided to Thomas Forslund, the Director of the
Wyoming Department of Health. (Nix Depo. 14:2315:2; Pyle Aff. ¶¶ 13-14.) Director Forslund considered
the matter and issued a letter dated January 5, 2018,
to Ms. Garcia advising her of his intent to terminate
her employment based on Dr. Post’s finding that she
was unfit for duty. (Doc. 26-5 pp. 1-2.) He also informed
Ms. Garcia that she could have Dr. Post’s report sent to
another mental health professional to have it interpreted and could provide her own written response to
the matter. (Id. p. 2.)
Ms. Garcia did not request Dr. Post’s report be sent
to another mental health professional, but she did submit a written response to Director Forslund that included some character reference letters. (Doc. 26-5 pp.
4-10; Nix Depo. 15:12-14.) Significantly, though, the
Department found Ms. Garcia’s response did not rebut
Dr. Post’s expert conclusion. (Pyle Aff. ¶¶ 17-20; Nix
Depo. 15:16-19.)
Director Forslund considered Ms. Garcia’s written
response but decided to follow through with the employment termination. (Doc. 26-5 pp. 11-12; Pyle Aff.
¶¶ 22-24; Nix Depo. 56:15-57:19, 58:17-24.) She was
dismissed from her employment with the Department
effective February 13, 2018. (Doc. 26-5 p. 11.)
App. 31
Post-termination proceedings
Ms. Garcia administratively appealed her termination, alleging the Department failed to comply with
relevant procedural requirements and she was not
terminated for cause. (Doc. 32-4.) In February 2019, an
administrative law judge determined the Department
had indeed complied with all procedural requirements
and good cause for her termination existed due to Dr.
Post’s conclusion that she was unfit for duty. (Doc. 324 pp. 3, 6.) The administrative law judge found the Department “made a series of thoughtful, deliberate and
difficult decisions that were supported by extensive investigations and documentation, including input from
both sides, and its determinations were reasonable under the circumstances.” (Doc. 32-4 p. 9.)
Lindsay Huse (statewide Program Manager for
the Public Health Division) was required to report Dr.
Post’s determination of unfitness to the Wyoming State
Board of Nursing. (Garcia Depo. 298:9-14, 301:16-22.)
The Board initiated a disciplinary action against Ms.
Garcia, and she ended up voluntarily surrendering her
Wyoming nursing license in May 2019. (Doc. 32-2.)
Ms. Garcia left Wyoming and moved to Arizona in
2019, where she applied for a nursing license within a
short time of moving. (Garcia Depo. 9:1-10, 28:2-12.)
She was required to undergo a new fitness-for-duty
psychological evaluation, which she underwent in
June 2019 with a licensed psychologist in Arizona.
(Garcia Depo. 28:15-29:3.) Ms. Garcia says moving to
Arizona “really deescalated” her anxiety a lot and, with
App. 32
the help of counseling, she began weening off medication, last taking any anti-anxiety medication in March
2020. (Garcia Depo. 52:13-56:8.) She was found to be fit
for duty in June 2019 and consequently received a provisional (probationary) nursing license for Arizona in
late 2019. (Garcia Depo. 29:4-7, 199:25-202:12.) She
started working as a registered nurse in Arizona in
April 2020. (Garcia Depo. 14:17-24, 29:15-17.)
DISCUSSION
The Court has jurisdiction over this case pursuant
to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3).
1.
The Department is protected by Eleventh
Amendment sovereign immunity against
Ms. Garcia’s disability discrimination claim
brought under Title I of the ADA.
Well before her employment with the Department,
Ms. Garcia was diagnosed with “an anxiety disorder
related to Post Traumatic Stress Disorder,” which she
disclosed to Melissa Ohnstad, her regional supervisor,
at the time of hire. (Doc. 32-1 p. 1, Garcia Aff. ¶ 2.) She
contends she suffered employment discrimination on
the basis of her mental health disorder and never received a reasonable accommodation, all in violation of
Title I of the Americans with Disabilities Act (ADA).
(See Compl. ¶¶ 11, 18-21 (citing 42 U.S.C. § 12117(a),
which is part of Title I of the ADA)); see also Elwell v.
Oklahoma ex rel. Bd. of Regents of Univ. of Oklahoma,
693 F.3d 1303, 1309 (10th Cir. 2012) (“Title I [of the
App. 33
ADA], not Title II, is the proper tool for pursuing employment discrimination claims.”).
The Department argues it is afforded sovereign
immunity by the Eleventh Amendment against Ms.
Garcia’s cause of action brought under Title I of the
ADA (identified in her complaint as her “Second Claim
for Relief ”). Generally, states and state agencies, such
as the Department here, “are protected from suit by
sovereign immunity as guaranteed by the Eleventh
Amendment.” Levy v. Kansas Dep’t of Soc. & Rehab.
Servs., 789 F.3d 1164, 1168 (10th Cir. 2015). “The ultimate guarantee of the Eleventh Amendment is that
nonconsenting States may not be sued by private individuals in federal court.” Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001). The three exceptions
to sovereign immunity are:
First, a state may consent to suit in federal
court. Second, Congress may abrogate a
state’s sovereign immunity by appropriate
legislation when it acts under Section 5 of
the Fourteenth Amendment. Finally, under
Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52
L.Ed. 714 (1908), a plaintiff may bring suit
against individual state officers acting in
their official capacities if the complaint alleges an ongoing violation of federal law and
the plaintiff seeks prospective relief.
Levy, 789 F.3d at 1169 (quoting Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (internal citations omitted and altered)).
App. 34
Ms. Garcia does not seek prospective relief to
remedy an ongoing violation. (See generally Compl.)
And “[i]n Garrett, the Supreme Court held that Congress did not validly abrogate sovereign immunity for
employment discrimination claims made against
states under Title I of the ADA.” Levy, 789 F.3d at 1169
(citing Garrett, 531 U.S. at 374, 121 S.Ct. 955); see also
Elwell, 693 F.3d at 1310 (“the Supreme Court has held
that states enjoy Eleventh Amendment immunity from
suit under Title I, presenting an even bigger obstacle
for public employees seeking to bring employment discrimination claims”). Thus, the question is whether the
Department (through the State of Wyoming) has voluntarily waived its sovereign immunity and consented
to be sued in federal court on Title I causes of action.
In short, Ms. Garcia has identified no such waiver and
consent.
In the Rehabilitation Act, Congress expressly
stated:
A State shall not be immune under the Eleventh Amendment of the Constitution of the
United States from suit in Federal court for a
violation of section 504 of the Rehabilitation
Act of 1973 . . . or the provisions of any other
Federal statute prohibiting discrimination by
recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1). Wyoming accepted federal
Rehabilitation Act funding and thereby waived its
sovereign immunity against claims brought under
§ 504 of the Rehabilitation Act (29 U.S.C. § 794). Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1168
App. 35
(10th Cir. 2003). Ms. Garcia essentially contends that
because the “standards used to evaluate a claim under
the Rehabilitation Act are the same as those applied to
Title I claims under the ADA,” and Wyoming already
consented to being sued under the Rehabilitation Act,
the State has necessarily also consented to being
sued under Title I of the ADA. (Doc. 32 pp. 11-12.)
However, this “waiver-under-the-Rehabilitation-Actequals-waiver-under-the-ADA” argument was already
rejected in Levy, where the Tenth Circuit stated in
part:
•
[T]he close relationship between the two
statutes is not sufficient to conclude that
the Rehabilitation Act’s waiver provisions
apply by implication to the ADA.
•
For a waiver of sovereign immunity to be
“knowing and voluntary,” it cannot be hidden in another statute and only applied
to the ADA through implication.
•
Moreover, no court has concluded that the
Rehabilitation Act’s waiver provisions apply to the ADA.
•
In the absence of clear evidence that Congress intended for states to waive their
immunity under the ADA by accepting
federal funds, we will not stretch the language of the Rehabilitation Act to conclude that [a state agency] has made a
clear and voluntary waiver of its sovereign immunity for ADA claims.
Levy, 789 F.3d at 1171.
App. 36
Ms. Garcia has not shown that Wyoming clearly
and voluntarily waived its Eleventh Amendment sovereign immunity against claims brought under Title I
of the ADA. Consequently, summary judgment must be
granted in the Department’s favor against Ms. Garcia’s
disability discrimination claims brought under Title I
of the ADA.
2.
Ms. Garcia’s employment-discrimination
claims based on disability, race, and religion fail because she has presented no
admissible evidence to suggest she was
terminated for discriminatory reasons
and, in any event, she has not shown the
Department’s reasons for terminating her
were pretext.
The Court will analyze these claims together because they all share a common element—they all require Ms. Garcia to present evidence from which a
reasonable jury could find that she suffered an adverse employment action based on, or because of,
some discriminatory animus.6 She has not done so, and
Ms. Garcia named the Rehabilitation Act of 1973 in the first
paragraph of her complaint, but she did not base any of her causes
of action on it. (Compl. ¶¶ 16-23 (relying on only the Civil Rights
Act of 1964 and the ADA for her three claims for relief ).) For purposes of this section of the discussion, though, the Court will assume arguendo that she based her disability-discrimination on
the Rehabilitation Act or the Department was not immune to a
claim under Title I of the ADA.
6
App. 37
therefore the Department is entitled to summary judgment in its favor on these claims.
2.1 The elements of Ms. Garcia’s disparatetreatment claims
Ms. Garcia has not presented any direct evidence
of discrimination, “e.g., a defendant’s oral statements
demonstrating her discriminatory motive,” Stover v.
Martinez, 382 F.3d 1064, 1075 (10th Cir. 2004). (See
Garcia Depo. 99:8-100:21, 178:22-24 (stating that her
coworkers did not make any negative comments to her
about her religion, race, or disability).) Therefore, her
claims of disparate treatment based on race, religion,
and disability are all analyzed under the McDonnell
Douglas burden-shifting framework first set forth in
McDonnellDouglas Corp v. Green, 411 U.S. 792 (1973).
See Stover, 382 F.3d at 1070, 1075-76, 1077 (as to Title
VII claims involving race and religion); Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th
Cir. 2011) (as to ADA discrimination claims); see also
Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub.
Sch., 565 F.3d 1232, 1245 (10th Cir. 2009) (“Because
the ADA and Rehabilitation Act ‘involve the same substantive standards, [courts] analyze them together.’ ”).
The three-step framework is:
At the first step of the analysis, a plaintiff
must establish a prima facie case of [employment] discrimination. If the plaintiff succeeds,
the burden of production then shifts to the
employer to identify a legitimate, nondiscriminatory reason for the adverse employment
App. 38
action. Once the employer advances such a
reason, the burden shifts back to the plaintiff
to prove the employer’s proffered reason was
pretextual.
Frappied v. Affinity Gaming Black Hawk, LLC, 966
F.3d 1038, 1056 (10th Cir. 2020) (internal citations and
quotation marks omitted).
The three elements required for establishing a
prima facie case of employment discrimination based
on disability under the ADA or Rehabilitation Act require the plaintiff to
show that he (1) was disabled; (2) was qualified, that is, could perform the essential functions of the job in question, with or without
accommodation; and (3) suffered adverse employment action because of the disability.
Mathews v. Denver Post, 263 F.3d 1164, 1167 (10th Cir.
2001).
Similarly, a prima facie case under Title VII of the
Civil Rights Act of 1964 for discrimination based on
race or religion
generally requires a plaintiff to show, by a preponderance of the evidence, that she is a
member of a protected class, she suffered an
adverse employment action, and the challenged action occurred under circumstances
giving rise to an inference of discrimination.
Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261,
1266 (10th Cir. 2015).
App. 39
The Tenth Circuit has explained that the “critical
prima facie inquiry” in all discrimination claims is the
causal nexus, the “because of,” element connecting
the adverse employment action to the alleged discrimination. Kendrick v. Penske Transp. Servs., Inc., 220
F.3d 1220, 1227 (10th Cir. 2000). “As the very name
‘prima facie case’ suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it
establishes a legally mandatory, rebuttable presumption.” Id. (quoting O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12 (1996)).
2.2 The only legally-actionable adverse employment action at issue in Ms. Garcia’s
disparate-treatment claims is her termination.
At oral argument, Ms. Garcia’s counsel highlighted the fact that she was informed she was being
placed on paid administrative leave pending the fitness-for-duty evaluation and was escorted out of the
building at the time. This does not amount to an actionable adverse employment action, though.
In the context of a disparate-treatment claim, an
adverse employment action consists of a “significant
change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Piercy v. Maketa, 480 F.3d
1192, 1203 (10th Cir. 2007). The Tenth Circuit has not
App. 40
expressly decided whether paid administrative leave
constitutes an actionable adverse employment action.
See Lincoln v. Maketa, 880 F.3d 533, 542 (10th Cir.
2018) (“To date, our own court has not issued a precedential opinion on whether paid administrative leave
constitutes an adverse employment action.”). Instead,
the Tenth Circuit says the matter must be considered
on a case-by-case basis. Lincoln, 880 F.3d at 542.
Here, Ms. Garcia was on paid administrative leave
from October 19, 2017 (Doc. 26-3 pp. 34-35), until her
termination on February 13, 2018 (Doc. 26-5 pp. 11-12),
a period of nearly four months. While this time appears
a bit excessive at first blush, the Court finds it reasonable under these circumstances. The chain of events
was:
•
Ms. Garcia’s fitness-for-duty evaluation was
completed by Dr. Gerald Post on December 6,
2017 (Doc. 14-1 p. 2);
•
The Department’s Director, Thomas Forslund,
then issued the Notice of Intent to Dismiss
letter on January 5, 2018 (Doc. 26-5 pp. 1-2);
•
Ms. Garcia’s time to respond to the intent to
terminate was extended at her request to February 5, 2018 (Doc. 26-5 p. 11);
•
Ms. Garcia submitted a written response on or
about January 29, 2018 (Doc. 26-5 pp. 4-11);
and
•
Then Director Forslund issued the Final Dismissal on February 13, 2018 (Doc. 26-5 pp. 1112).
App. 41
Further, Ms. Garcia has offered no evidence to suggest her pay or benefits were altered during the administrative leave or that the Department changed
her employment conditions to be more arduous. See
McGowan v. City of Eufala, 472 F.3d 736, 743 (10th Cir.
2006) (an employment action that “offered no differences in pay and benefits” and did not require work
that was “more arduous” was not materially adverse).
Considering the totality of the circumstances, including Ms. Garcia’s own extension request, placement on
paid administrative leave did not amount to a materially-adverse employment action, at least not for her
disparate-treatment claims. See Gerald v. Locksley,
785 F. Supp. 2d 1074, 1117 (D.N.M. 2011) (collecting
cases holding that placement on paid leave was not an
actionable adverse employment action).
Similarly, requiring Ms. Garcia undergo a fitnessfor-duty evaluation also does not constitute an adverse
employment action. “The Tenth Circuit has made it
clear that subjecting an employee to a psychological examination can be vital for understanding an employer’s ADA obligations to that employee.” Paystrup v.
Benson, No. 2:13CV00016-DB, 2015 WL 506682, at *9
(D. Utah Feb. 6, 2015) (unpublished) (citing McKenzie
v.Dovala, 242 F.3d 967 (10th Cir. 2001)). Additionally,
Ms. Garcia’s statements in her deposition and text
messages to her supervisors demonstrate an objectively legitimate concern as to whether she could perform all the essential duties of her job in October 2017,
thus warranting a fitness-for-duty evaluation. In her
deposition:
App. 42
•
Ms. Garcia admitted she was having problems
sleeping due to her anxiety (Garcia Depo.
146:5-10);
•
She said her direct supervisor, Kristal Skiles,
“was afraid [Ms. Garcia] was going to harm a
patient” (Garcia Depo. 146:17-23);
•
She agreed that her late charting in the computer system was “a violation of state policy
or agency policy” and that timely charting was
one of her essential job duties (Garcia Depo.
156:18-157:22);
•
She admitted she was “struggling” with the
essential job requirement of “[m]ental focus
and concentration needed for a variety of nursing duties” (Garcia Depo. 163:25-164:10); and
•
She admitted she told her direct supervisor
that although they were concerned she may
harm a patient, had they “every thought she
may harm herself because of ” her supervisors’
actions. (Garcia Depo. 146:11-16.)
And in a group text message to both her direct supervisor (Kristal Skiles) and the Regional Supervisor
(Melissa Ohnstad), Ms. Garcia noted that her treating
physician “thinks [Ms. Garcia’s] memory loss is from
the flexeril,” a prescription muscle relaxant. (Doc. 26-2
p. 8.) Perhaps if an employee is required to undergo a
fitness-for-duty evaluation for no identifiable reason, it
could constitute an actionable adverse employment action. “An employer’s request that an employee undergo
a medical examination [including a fitness-for-duty
evaluation] must be supported by evidence that would
App. 43
‘cause a reasonable person to inquire as to whether an
employee is still capable of performing his[/her] job.’ ”
Conrad v. Bd. of Johnson Cty. Comm’rs, 237 F. Supp. 2d
1204, 1230 (D. Kan. 2002) (quoting Sullivan v. River
Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999)).
That is not the case here, though. Here, Ms. Garcia’s
own statements and admissions show there was more
than enough evidence for the Department to objectively question whether Ms. Garcia was still capable of
performing her job.
Ms. Garcia’s placement on paid administrative
leave pending a fitness-for-duty evaluation did not
constitute a materially-adverse employment action
capable of supporting a claim for race, religion, or
disability discrimination. Consequently, the only adverse employment action supporting her claims of
discrimination is her final discharge from employment.
2.3 Ms. Garcia has not stated a prima facie
case of discrimination based on race,
religion, or disability because there is
no evidence to connect her termination
to a discriminatory animus.
In her deposition, Ms. Garcia thrice agreed Director Forslund terminated her employment because the
fitness-for-duty evaluation concluded she was unfit
for duty. (Garcia Depo. 155:25-156:7, 163:3-7, 185:25186:2.) And while it is clear that Ms. Garcia takes
issue with the adequacy of Dr. Post’s fitness-for-duty
evaluation, at oral argument, the Court asked Ms.
App. 44
Garcia’s counsel whether Director Forslund had any
information before him that would suggest Dr. Post’s
fitness-for-duty evaluation was inadequate, and Plaintiff ’s counsel answered “No.” Moreover, Ms. Garcia has
not pointed to any evidence in the record to suggest
that Director Forslund had any reason or basis to
question the validity and reliability of the fitness-forduty evaluation at the time he terminated Ms. Garcia’s
employment. Most significantly, Ms. Garcia has not
identified a scintilla of evidence to suggest Director
Forslund, the decision-maker, was motivated in any
manner by unlawful discrimination when he decided
to discharge Ms. Garcia. Therefore, Ms. Garcia has not
set forth the necessary element of causal connection—
she has not established any nexus between the alleged
discrimination and Director Forslund’s decision to terminate her employment. There is no discriminatory
animus shown to be driving Director Forslund’s action.
Ms. Garcia has not stated a prima facie case of disparate treatment based on race, religion, or disability discrimination, and summary judgment on these claims
must be granted in the Department’s favor on these
claims.
2.4 Alternatively, Ms. Garcia has not presented any evidence to show the Department’s proffered reason for her
termination was pretext for discrimination.
Even assuming arguendo that Ms. Garcia could
make out a prima facie case of unlawful discrimination,
App. 45
she has not rebutted the Department’s proffered nondiscriminatory reason for her termination. “Pretext
can be shown by such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action
that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” Lobato v. New Mexico Env’t Dep’t, 733 F.3d
1283, 1289 (10th Cir. 2013) (quoting Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). Importantly,
though, when considering whether the proffered reason was pretextual, the Court must “examine the facts
as they appear to the person making the decision[,] not
the plaintiff ’s subjective evaluation of the situation.”
Id. (quoting Luster v. Vilsack, 667 F.3d 1089, 1093
(10th Cir. 2011)). The examination asks “not whether
the employer’s proffered reasons were wise, fair or correct, but whether [the employer] honestly believed
those reasons and acted in good faith upon those beliefs.” Id. (quoting Luster, 667 F.3d at 1094).
The facts as they appeared to Director Forslund
showed that an independent psychologist had evaluated Ms. Garcia and concluded she was unfit for duty
as a public health nurse because she was unable to
meet several essential job duties “on a consistent basis
due to the symptoms and features of PTSD, with Panic
Attacks that were persistently present” (Doc. 14-1 p.
10), and Ms. Garcia had not introduced any basis for
Director Forslund to question the fitness-for-duty evaluation in her response (see Doc. 25-5 pp. 4-10), both of
App. 46
which Director Forslund expressly considered when
deciding whether to terminate Ms. Garcia’s employment. Ms. Garcia has not pointed to any evidence that
would suggest Director Forslund did not honestly believe the fitness-for-duty evaluation or that he did not
act in good faith upon those beliefs.7
The Department proffered the fitness-for-duty
evaluation and Director Forslund’s reliance thereon as
a legitimate, nondiscriminatory reason for Ms. Garcia’s
discharge. Ms. Garcia has not carried her burden under the McDonnell Douglas burden-shifting framework of showing the Department’s proffered reason
was pretextual. Thus, the Department is entitled to
summary judgment in its favor against Ms. Garcia’s
employment-discrimination claims based on race, religion, and disability.
To be sure, Ms. Garcia alleges several people other than the
relevant decision-makers in this case, some employed by the State
and others not, all conspired against her to get her fired due to
racial and religious discrimination. (See, e.g., Garcia Depo. 118:5119:12, 150:20-25.) As she herself concedes, though, these allegations are her beliefs and thoughts. (Id. 118:13-14, 118:24-25,
119:11-12.) However, “[m]ere conjecture that the employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” Bekkem v. Wilkie,
915 F.3d 1258, 1268 (10th Cir. 2019) (quoting Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).
7
App. 47
3.
Ms. Garcia’s Title VII retaliation claim also
fails because she has not shown the Department’s reasons for terminating her
were pretextual.
To state a prima facie case of retaliation under
Title VII of the Civil Rights Act of 1964,
a plaintiff must show “(1) that [s]he engaged
in protected opposition to discrimination, (2)
that a reasonable employee would have found
the challenged [employment] action materially adverse, and (3) that a causal connection
existed between the protected activity and the
materially adverse action.”
Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th
Cir. 2012) (quoting Twigg v. Hawker Beechcraft Corp.,
659 F.3d 987, 998 (10th Cir. 2011)). Retaliation claims
are also subject to the McDonnell Douglas burdenshifting framework when there is no direct evidence of
retaliation. See Stover, 382 F.3d at 1070-71.
For this retaliation claim only, the Court will assume without deciding that (1) Ms. Garcia’s placement
on paid administrative leave pending a fitness-for-duty
evaluation constituted an adverse employment action,
and (2) a causal connection exists based on temporal
proximity alone between her alleged opposition to discrimination and the adverse employment action. See
Burlington v. Northern & Santa Fe Railway Co. v.
White, 548 U.S. 53, 64 (2006) (noting that Title VII’s
“antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment”); but see
App. 48
Freelain v. Village of Oak Park, 888 F.3d 895, 903-04
(7th Cir. 2018) (requiring a police officer to undergo a
fitness-for-duty psychological evaluation after taking
several weeks off due to stress-related medical symptoms was not a materially-adverse employment action
supporting a retaliation claim when the evaluation
was “used to determine a worker’s ability to perform
work functions safely”).
Ms. Garcia contends she engaged in protected opposition to discrimination in a group text message sent
to Kristal Skiles and Melissa Ohnstad, and specifically
directed at Ohnstad, on October 13, 2017, which said
in part,
I’ve never done anything to have my integrity
questioned and nobody wants to give me answers. The only thing that makes me different
is that I’m a Hispanic middle eastern Jewish
woman with a medical condition. It is NOT
OKAY to pick on that group of people or tell
them they throw up red flags. Shame on you
for your participation. I will be contacting a
civil rights attorney. This is not okay.
(Doc. 26-2 pp. 15-16; see also Garcia Depo. 182:16-25
(describing this October 13, 2017 text message as her
protected opposition to discrimination).) She was
then placed on administrative leave pending a fitness-for-duty evaluation less than a week later. (Doc.
32-2 pp. 40-41.) Thus, for Ms. Garcia’s Title VII retaliation claim only, the Court assumes without deciding
that she has stated a valid prima facie case sufficient
to shift the burden to the Department to proffer a
App. 49
legitimate, nondiscriminatory reason for the adverse
employment action.
As discussed above, nondiscriminatory objective
reasons support the Department’s decision to place
Ms. Garcia on paid administrative leave pending a fitness-for-duty evaluation and to eventually terminate
her employment. Specifically, her own admissions to
sleeping problems, memory problems, her untimely
charting, her lack of mental focus and concentration,
and her direct supervisor’s concern that Ms. Garcia
may harm a patient due to her mental state (Garcia
Depo. 146:5-10, 146:17-23, 156:18-157:22, 163:25-164:10;
Doc. 26-2 p. 8) together constitute ample legitimate
and nondiscriminatory support for the Department’s
decision to put her on paid administrative leave and
require a fitness-for-duty evaluation. Ms. Garcia’s
statements and admissions were more than enough
evidence for the Department to question her ability to
perform her job and require a fitness-for-duty evaluation. And in terminating her, Director Forslund relied
on Dr. Post’s unrebutted fitness-for-duty evaluation,
which concluded Ms. Garcia was unfit for duty as a
public health nurse at that time and “it appeared to be
unlikely that [Ms. Garcia] would quickly recover from
her condition” (Doc. 14-1 p. 11). These are legitimate,
nondiscriminatory reasons supporting the Department’s decisions.
Also as discussed above, Ms. Garcia has not provided any evidence at this summary-judgment stage to
suggest the Department’s proffered reasons for these
adverse employment actions are unworthy of belief.
App. 50
That is, Ms. Garcia has not carried her burden under
the McDonnell Douglas burden-shifting framework of
showing the Department’s proffered reasons were pretextual. Accordingly, the Department is entitled to
summary judgment in its favor on Ms. Garcia’s claim
of retaliation under Title VII.
4.
Ms. Garcia’s failure-to-accommodate claim
under the ADA does not survive summary
judgment.
Though her complaint is not a model of clarity,
the Court assumes Ms. Garcia intended to assert a failure-to-accommodate claim, in addition to a disparatetreatment claim, within her “Second Claim for Relief ”
(See Compl. ¶ 18-21.) Assuming she meant to set forth
a failure-to-accommodate claim under the ADA, and
assuming arguendo the Department is not entitled to
Eleventh Amendment sovereign immunity (see earlier
discussion), the Department is entitled to summary
judgment in its favor on the claim because Ms. Garcia
has not come forward with any admissible evidence
from which a reasonable jury could find the Department failed or refused to accommodate her.
“[B]efore an employer’s duty to provide reasonable
accommodations—or even to participate in the ‘interactive process’—is triggered under the ADA, the employee must make an adequate request, thereby
putting the employer on notice.” Koessel v. Sublette Cty.
Sheriff ’s Dep’t, 717 F.3d 736, 744 (10th Cir. 2013) (quoting EEOC v. C.R. England, Inc., 644 F.3d 1028, 1049
App. 51
(10th Cir. 2011)). It is undisputed that Ms. Garcia’s
treating physician completed the disability certification form on October 13, 2017, which stated in relevant
part:
Jana is currently suffering from an exacerbation of her anxiety disorder. I think it is reasonable to allow her to close her office door &
de-escalate in the event of a panic attack.
(Doc. 28-1 p. 28.) It is also undisputed that Ms. Garcia
faxed this completed form to the Department’s Human
Resources Office in the afternoon of October 17, 2017.
(Doc. 26-3 pp. 26-33.) However, she was placed on paid
administrative leave pending a fitness-for-duty evaluation on the morning of October 19, 2017, not even two
full days later.8 (Doc. 26-3 pp. 34-35; Garcia Depo.
177:12-16.) The uncontroverted testimony from Matthew
Nix, Human Resources Manager for the Department
at the time, demonstrates that Ms. Garcia was put on
administrative leave (and never returned to work) before the human resources unit had an opportunity to
meet with her to proceed with the interactive process.
(Nix Depo. 4:6-7, 21:2-13.) He testified that had she
returned to work from paid administrative leave, “we
would have gone through that interactive process
with her to discuss reasonable accommodations that
As the Court discussed earlier, the evidence presented here
demonstrates the fitness-for-duty evaluation was ordered based
on the Department’s objectively-legitimate concerns with Ms.
Garcia’s ability to safely do her job; no reasonable jury could conclude the required fitness-for-duty evaluation was motivated by
discriminatory or retaliatory reasons.
8
App. 52
wouldn’t create an undue hardship on the Department.” (Nix Depo. 21:9-13.) The only accommodation
Ms. Garcia requested was the ability to close her office
door and de-escalate in the event of a panic attack.
(Doc. 28-1 p. 28.) Nix said the accommodation request
“was a moot point” during the administrative leave
“because the only request was to close her door at the
office, and she was no longer in the office.” (Nix Depo.
23:9-16.) He noted that had Ms. Garcia returned from
administrative leave, “we would have gone through
the interactive process at that point. But we never got
there.” (Nix Depo. 23:19-21.) And Melissa Ohnstad’s
uncontested testimony was that she and Matthew Nix
had discussed how to best accommodate Ms. Garcia’s
request to close her door while also keeping the Glenrock public health office open to customers (Ohnstad
Depo. 47:12-22), but, again, Ms. Garcia never returned
to duty. Moreover, Ms. Garcia admitted the ability to
close her office door would not resolve several of the
problems she was having at work, including “forgetting
a sharps container or issues with timely charting or
recording of charting.” (Garcia Depo. 177:3-11.)
In short, the unrebutted evidence establishes the
Department never failed or refused to accommodate
Ms. Garcia’s ADA request. Instead, the duty to engage
in the interactive process with her arose not even a full
two days before she was placed on paid administrative
leave pending a fitness-for-duty evaluation, and her requested accommodation to close her door in the event
of a panic attack became moot unless and until she returned to work, and she didn’t. There is no reasonable
App. 53
argument that the Department failed to accommodate
in a timely manner or dragged its feet in processing
Ms. Garcia’s accommodation request. Based on the undisputed evidence, no reasonable jury could conclude
the Department acted unreasonably in not completing
the interactive process for Ms. Garcia’s accommodation
request in less than two days and then placing the interactive process on hold when she went on paid administrative leave. Assuming Ms. Garcia intended to
assert a failure-to-accommodate claim under the ADA,
the Department is entitled to summary judgment in its
favor on such a claim.
5.
If Ms. Garcia intended to state a claim for
hostile work environment, it does not survive summary judgment.
Ms. Garcia did not set forth a cause of action alleging hostile work environment in her complaint. (See
Compl. ¶¶ 16-23.) However, in the “Facts” section of
her complaint, she alleged:
8. The plaintiff, while an employee of
the defendant State of Wyoming as a public
health nurse in Converse County was subjected to harassing conduct by co-employees
based upon her race, religion, and disability,
to wit:
a.
In October 2017Meliessa Ohnstad, Regional manager, Kristal
Skiles, Nurse manager, said she
was not normal compared to her
co-workers.
App. 54
b.
In October 2017 Ms. Skiles shadowed me that caused me to feel
uncomfortable and have anxiety
attacks.
c.
Ms. Ohnstad told me I was unstable.
d.
My co-workers would bring pork
to the Tuesday meetings knowing that I was unable to eat pork
because of my religion.
e.
I was expected to participate in
Christmas exchanges and Easter
Egg hunts.
f.
I was excluded from the interview process of Ms. Skiles.
9. The harassment was pervasive and
affected a term, condition or privilege of employment which altered the employment
conditions and created an abusive work environment.
(Compl. ¶¶ 8-9 (sic throughout).) In an abundance of
caution, the Court will examine whether a claim for
hostile work environment survives summary judgment.9
Ms. Garcia is represented by counsel and is therefore not
entitled to the liberal construction generally afforded a pro se
party, but the Court has attempted to give her (and her counsel)
the benefit of the doubt, despite the rather unfocused, shotgun
approach to her pleadings and briefing.
9
App. 55
The familiar three-part McDonnell Douglas framework applies to a claim of hostile work environment.
See Lounds v. Lincare, Inc., 812 F.3d 1208, 1221-24
(10th Cir. 2015) (applying the McDonnell Douglas test
to the plaintiff ’s claim of racially hostile work environment); see also West v. Norton, 376 F. Supp. 2d 1105,
1120 (D.N.M. 2004) (“In the absence of direct evidence,
claims of age, race, national origin, gender discrimination, hostile work environment, and retaliation are all
subject to the burden shifting framework that the Supreme Court established in McDonnell Douglas Corp.
v. Green. . . .”).
[T]o avoid summary judgment at the prima
facie stage, a plaintiff must present evidence
that creates a genuine dispute of material fact
as to whether “the workplace is permeated
with discriminatory intimidation, ridicule,
and insult[ ] that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment.” Hall v. U.S. Dep’t of Labor, 476
F.3d 847, 851 (10th Cir. 2007) (quoting Davis
v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th
Cir. 1998)).
Lounds, 812 F.3d at 1222. To establish a prima facie
claim of hostile work environment, Ms. Garcia must
identify specific evidence from which a reasonable jury
could find four elements:
(1) she is a member of a protected group;
(2) she was subject to unwelcome harassment;
(3) the harassment was based on [a legallyprotected status]; and (4) [due to the harassment’s severity or pervasiveness], the
App. 56
harassment altered a term, condition, or privilege of the plaintiff ’s employment and created an abusive working environment.
Id. (second alteration in original) (quoting Harsco
Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007)).
“Whether an environment is hostile or abusive ‘can be
determined only by looking at all the circumstances . . .
[including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s
work performance.’ ” Glover v. NMC Homecare, Inc.,
106 F. Supp. 2d 1151, 1167–68 (D. Kan. 2000), aff ’d, 13
F. App’x 896 (10th Cir. 2001) (quoting Davis v. United
States Postal Serv., 142 F.3d 1334, 1341 (10th Cir.
1998)). “Conduct that is not severe or pervasive enough
to create an objectively hostile or abusive work environment—an environment that a reasonable person
would find hostile or abusive—is beyond Title VII’s
purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993).
Ms. Garcia has failed to carry her burden of showing a prima facie claim for hostile work environment
exists. Specifically, as to Ms. Garcia’s first allegation,
the unrebutted evidence demonstrates that Melissa
Ohnstad (the Regional Supervisor) stated Ms. Garcia
was “not normal compared to her co-workers” with regard to her odd or late hours at the public health office and shutting the main office door. (Garcia Depo.
269:20-272:11.) There is no evidence the comment was
motivated by or even directed at Ms. Garcia’s race,
App. 57
religion, or disability. See Hall v. U.S. Dept. of Labor,
Admin. Review Bd., 476 F.3d 847, 851 (10th Cir. 2007)
(a hostile work environment actionable under Title VII
exists where “the workplace is permeated with discriminatory intimidation, ridicule, and insult”) (emphasis added) (quoting Davis, 142 F.3d at 1341). Title
VII of the Civil Rights Act is intended to protect employees from discrimination; it “does not establish a
general civility code for the workplace.” Morris v. City
of Colo. Springs, 666 F.3d 654, 663-64 (10th Cir. 2012).
Title VII does not protect employees from unenjoyable
work experiences that are not based on discrimination.
See Lounds, 812 F.3d at 1222 (the third element of a
hostile work environment claim under Title VII requires the harassment to be “based on” the plaintiff ’s
membership in a protected class). Comparing Ms. Garcia’s many entrances into and exits from the public
health office during non-working (and often very late
or very early) hours against those of her co-workers is
not discrimination protected by Title VII.
The same holds true for Kristal Skiles’ “shadowing” of Ms. Garcia in October 2017. A reasonable jury
could not find such conduct hostile or abusive. Kristal
Skiles was Ms. Garcia’s direct supervisor at the time,
and, as Ms. Garcia admitted, she was behind on her
charting in violation of state policy and “struggling”
with her mental focus and concentration (Garcia Depo.
156:18-157:22, 163:25-164:10). Not only is it acceptable
for a direct supervisor to “shadow” a subordinate employee, but it was particularly appropriate in this
case due to Ms. Garcia’s admitted job-performance
App. 58
problems. And the same analysis applies to Ms. Ohnstad allegedly telling Ms. Garcia she was “unstable.”
Ms. Garcia’s admissions demonstrate her job performance and her emotional state were unstable at that
time. There is zero evidence suggesting these actions
and comments were driven by a discriminatory motive
or animus. Not every unenjoyable work experience is
based on illegal discrimination.
The unrebutted evidence also shows Ms. Garcia
was excluded from the hiring committee for the County
Manager position (which Kristal Skiles was hired for)
because Ms. Garcia initially applied for the position,
which obviously disqualified her from being part of the
hiring committee. (Ohnstad Depo. 17:9-18:15.) When
Ms. Garcia applied in the Summer of 2016, a nurse
from Colorado was hired, but that person only worked
as the Nurse Manager for a very short time. (Ohnstad
Depo. 18:1-3) (noting the initial hire “only stayed for
four days”). Because the Department was forced to restart the hiring process almost immediately, Melissa
Ohnstad (Regional Supervisor) kept the hiring committee the same. (Ohnstad Depo. 18:5-15.) Again, Ms.
Garcia has not come forward with any admissible evidence that would intimate any discriminatory reason
for her exclusion from that hiring committee, even if
Ms. Garcia did not like it or agree with it.
That leaves the monthly breakfast meetings10
where her co-workers allegedly brought pork dishes
Despite the complaint’s suggestion that these meetings
occurred every Tuesday, Ms. Garcia’s deposition testimony shows
10
App. 59
while knowing, because she is Jewish, she doesn’t eat
pork accompanied with her “expected” participation in
Christmas exchanges and Easter Egg hunts. It was
disputed whether Ms. Garcia’s pork-free diet was ever
accommodated at any of the breakfast meetings and
whether any employee was actually “expected” to participate in the Christmas exchange or the 2016 Easter
Egg hunt (there was no 2017 Easter Egg hunt). (See
Ohnstad Depo. 79:2-9 (pork-free breakfasts were offered several times), 61:18-63:3, 77:15-78:20 (participation in holiday-based activities was voluntary).)
Resolving that dispute in Ms. Garcia’s favor for purposes of summary judgment, though, monthly breakfast meals containing pork and an expectation that she
participate in two holiday-themed activities over the
period of her 18-month active employment are nowhere near severe or pervasive enough to constitute a
discriminatory change in her terms and conditions of
employment. See Morris v. City of Colorado Springs,
666 F.3d 654, 667-68 (10th Cir. 2012) (when viewed
in context, juvenile, unprofessional, and even independently tortious conduct did not objectively alter
terms and conditions of employment). As Ms. Garcia
testified, she does not believe she would have or could
have been disciplined if she had chosen not to participate in the gift exchange. (Garcia Depo. 170:13-171:1
(saying she didn’t think she could be disciplined for
her non-involvement but would have felt excluded),
241:23-242:4 (noting Melissa Ohnstad “approved” Ms.
the breakfast meetings occurred one Friday morning per month
in Douglas, Wyoming. (Garcia Depo. 79:20-80:7.)
App. 60
Garcia’s non-attendance at the county Christmas
party).) Further, there is no evidence to suggest Ms.
Garcia was ever threatened or humiliated concerning
these holiday activities and monthly breakfasts, or
that the pork dishes and expectation of participation
unreasonably interfered with Ms. Garcia’s work. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)
(noting the totality of circumstances to consider may
include whether the discriminatory conduct is “physically threatening or humiliating” and whether it
“unreasonably interferes with an employee’s work performance”). “On balance, there is simply insufficient
evidence for a jury to find that the alleged harassment
was pervasive.” Morris v. City of Colo. Springs, 666 F.3d
654, 666 (10th Cir. 2012). And any claim of a discriminatorily abusive work environment based on Ms.
Garcia’s religion is also particularly weak because she
testified she considered her co-worker’s questions
about her religion to be genuine inquiries (Garcia
Depo. 246:23-25 (“But it was just a lot of questions. I
really didn’t think a lot about them. I didn’t – ”)), and
her co-workers never made negative comments about
her Jewish faith (Garcia Depo. 99:8-12).
Moreover, even if Ms. Garcia could state a prima
facie claim based on the pork dishes and “expectation”
of participation in the two holiday activities, she has
not rebutted the evidence showing a lack of any discriminatory motive. (See, e.g., Ohnstad Depo. 60:1761:4 (employees rotated on who provided breakfast
each month, it was up to that employee what to bring,
and “nobody had to eat. Food was available. If they
App. 61
wanted to eat it, they could.”), 79:2-13 (Ohnstad and
at least one other employee provided pork-free options or dishes for Ms. Garcia, though Ms. Garcia never
formally requested such an accommodation), 61:2362:63:3 (an employee’s participation in a gift exchange,
holiday party, or Easter Egg hunt was completely optional and voluntary, not expected).)
Construing the facts in the light most favorable
to Ms. Garcia, there is not enough evidence for a reasonable jury to conclude that she was subjected to
harassment based on illegal discrimination of such
pervasiveness that it objectively altered the terms,
conditions, or privileges of her employment with the
Department. If Ms. Garcia intended to set forth a cause
of action for hostile work environment (and the Court
does not believe she did because she specifically mentioned it only in the “Facts” section of her complaint
and not as one of her “Claims for Relief ”), the Department would be entitled to summary judgment in its
favor on such a claim.
6.
Ms. Garcia’s request for partial summary
judgment must be denied.
In her competing motion, Ms. Garcia seeks partial
summary judgment “on the issue of liability for disability discrimination” under the ADA. (Doc. 28 p. 1.) As
noted above, the Department is entitled to Eleventh
Amendment sovereign immunity against Ms. Garcia’s
ADA claim(s). Alternatively, if sovereign immunity
was not available, a disparate-treatment claim fails
because, as set forth above, she has not shown any
App. 62
evidence of discriminatory motive or animus by the
Department for its actions and she has not shown the
Department’s reasons for terminating her to be pretext for disability discrimination. Finally, a failure-toaccommodate claim fails because she has not shown
any evidence the Department failed or refused to accommodate her request; instead, her placement on
paid administrative leave mooted and stayed her accommodation request. Consequently, Ms. Garcia’s motion for partial summary judgment must be denied.
CONCLUSION AND ORDER
The Department is entitled to summary judgment
in its favor on all claims for the various reasons described herein, and Ms. Garcia’s motion for partial
summary judgment must be denied because she is not
entitled to the relief requested therein.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment (Doc. 25) is
hereby GRANTED, and Plaintiff ’s Motion for Partial
Summary Judgment (Doc. 28) is DENIED. Summary
judgment is granted on all claims in the Department’s
favor. The Clerk of Court’s Office shall enter judgment
in Defendant’s favor and close this case.
DATED: August 25th , 2020.
/s/ Scott W. Skavdahl
Scott W. Skavdahl
United States District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.