Petition for Writ of Certiorari — Ron Rutledge, Petitioner v. Board of County Commissioners of Johnson County, Kansas
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APPENDIX TABLE OF CONTENTS
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United States Court of Appeals for the Tenth
Circuit, Order and Judgment, July 19, 2023 ..... App. 1
United States District Court for the District of
Kansas, Memorandum and Order, March 29,
2022 ................................................................ App. 31
Relevant Statutes .............................................. App. 95
App. 1
2023 WL 4618335
Only the Westlaw citation is currently available.
United States Court of Appeals, Tenth Circuit.
Ron RUTLEDGE, Plaintiff - Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF
JOHNSON COUNTY, KANSAS, Defendant - Appellee.
No. 22-3081
|
FILED July 19, 2023
Attorneys and Law Firms
Dennis Edward Egan, Popham Law Firm, Kansas City,
MO, Kenneth D. Kinney, Ralston Kinney, Kansas City,
MO, for Plaintiff - Appellant.
Bonnie Gail Birdsell, Jeannie M. DeVeney, Littler Mendelson, Kansas City, MO, for Defendant - Appellee.
(D.C. No. 2:20-CV-02012-DDC) (D. Kansas)
Before BACHARACH, MORITZ, and ROSSMAN, Circuit Judges.
ORDER AND JUDGMENT*
NANCY L. MORITZ, Circuit Judge.
* This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R.
App. P. 32.1(a); 10th Cir. R. 32.1(A).
App. 2
For more than a decade, Ron Rutledge worked for
the Board of County Commissioners of Johnson County,
Kansas. But in 2018, the County terminated his employment after he sat in the breakroom one morning
and refused to work: Rutledge insisted, over the contrary opinions of two supervisors, that he had permission to socialize for an hour after clocking in. Rutledge
responded to the termination of his employment with
this lawsuit against the County, alleging violations of
the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101–12213, the Family and Medical Leave Act
(FMLA), 29 U.S.C. §§ 2611–2654, and Kansas law. The
district court awarded summary judgment to the
County, and Rutledge appeals. Because Rutledge fails
to provide evidence that the County’s facially legitimate reason for terminating his employment—his dishonesty and insubordinate refusal to work—was a
pretext for discrimination or retaliation, we affirm.
Background
Rutledge began working for the County in the
Wastewater Department in 2005. He started out as a
line and inspection crew member, checking utility holes
and cleaning sewer lines. But about a year into the job,
he suffered a serious work-related injury to his neck
and shoulder. This injury resulted in a workers’ compensation claim, required three surgeries, and left Rutledge with a permanent disability and various work
restrictions. In accommodating those restrictions, the
County initially granted leaves of absence and changed
his job requirements, but it ultimately transferred him
App. 3
to a truck-driver position in 2009. Rutledge remained
in that position until the County terminated his employment in December 2018.
The record in this case includes a painstakingly
detailed account of the eventful 13-year employment
relationship between Rutledge and the County. For instance, Rutledge reported ten additional work-related
injuries during his employment. These injuries often
resulted in work restrictions, which the County accommodated by placing him on leaves of absence and adjusting his job duties. Over the years, Rutledge also
made several complaints against his coworkers, alleging harassment and bullying. The County investigated
his complaints, but it found no merit in them.
The particular events leading up to the termination of Rutledge’s employment began in May 2018,
when the County promoted Jeremy McCracken to assistant superintendent for the wastewater plant at
which Rutledge worked. When McCracken applied for
the position, Rutledge complained that he had overheard coworkers saying that if McCracken landed the
job, “Rutledge would be bullied at work.” App. vol. 4,
67. Jeanette Klamm, assistant director of operations
and maintenance at the Wastewater Department, investigated the complaint. When she spoke with
Rutledge, however, he would not answer her questions. And after interviewing several other employees,
she concluded that although “Rutledge had alienated
many of his coworkers,” she “had no reason to believe
. . . McCracken had [treated] or would treat . . .
Rutledge inappropriately.” Id.
App. 4
Shortly after McCracken became his supervisor,
Rutledge sustained two work-related injuries. The first
occurred in June 2018, when Rutledge fell out of a
chair with a missing back and injured his neck, lower
back, right shoulder, and left wrist. This injury resulted in various work restrictions, including limitations on lifting, pushing, and pulling. Rutledge suffered
the second injury the next month, when a sewer hose
spewed sludge on him.
Although the County had approved Rutledge for
intermittent FMLA leave through the end of the year
for his injuries, Rutledge testified that McCracken and
superintendent George Cloud made negative comments about him taking such leave. Rutledge reported
that McCracken told him that he “couldn’t take” FMLA
leave. App. vol. 1, 207. And when he did take FMLA
leave, Rutledge explained, McCracken and Cloud told
him that they wanted him at work “all the time.” Id.
Rutledge also testified that McCracken had sometimes
called him “half-timer,” although he never reported
this to anyone. Id. at 219.
In September 2018, Rutledge informed McCracken
that a ladder he used to perform truck checks—which
met his lifting restrictions—was missing. There is no
dispute that McCracken eventually purchased a rolling ladder that required no lifting as a replacement to
accommodate Rutledge’s restrictions. But there is a
dispute about a comment McCracken made during the
ladder incident. On Rutledge’s telling, when he first
told McCracken that the ladder was missing and that
it was specifically ordered to accommodate his lifting
App. 5
restrictions, McCracken responded: “[T]ough shit[,]
you will use what[ever ladder] we [give] you.” Id. at
196. Rutledge believes that this comment was directed
at his lifting restrictions. But the County, relying on
handwritten notes taken during a human-resources
call with Rutledge, maintains that McCracken made
the comment in response to Rutledge’s complaint that
he did not like the new ladder, even though it conformed to his lifting restrictions.
In early November, Rutledge took two days of FMLA
leave. The day he returned to work, Rutledge attended
a performance-review meeting with McCracken and
Cloud. The pair informed Rutledge that his work performance was satisfactory, but he needed to improve in
the areas of teamwork, leadership, and learning and
development. They also told Rutledge that he would
only receive a one-percent merit increase for the
year—the lowest increase the County could award. According to Cloud’s notes from the meeting, this news
upset Rutledge, and he reported feeling “targeted” and
“singled out” because of his work-related injuries. App.
vol. 6, 299. Rutledge also asserted that some employees
sat in the breakroom for an hour every morning after
clocking in and that he would start doing the same.
Cloud and McCracken urged Rutledge not to diminish
his work performance.
McCracken then left the meeting. Cloud and
Rutledge continued talking for about half an hour, but
they provide conflicting accounts of what they discussed. According to Cloud, he again discouraged
Rutledge from sitting in the breakroom for an hour
App. 6
in the mornings, and Rutledge ultimately agreed not
to do so. Rutledge, for his part, maintains that Cloud
specifically said he could “stay in the break[ ]room and
mingle with” coworkers for an hour. App. vol. 1, 197.
The next workday was November 13. At around
6:30 a.m., Rutledge left a voicemail for Leslie Fortney,
who worked in human resources, in which he complained about his one-percent raise and reported that
McCracken was bullying and retaliating against him.
Rutledge then clocked in at 7:00 a.m. and sat in the
breakroom with several coworkers. At some point,
McCracken walked in and asked Rutledge to begin
working. Rutledge refused, maintaining that he would
remain in the breakroom until 8:00 a.m. because Cloud
said he could. When McCracken called Cloud to see if
this was true, however, Cloud denied giving Rutledge
such permission. Eventually, Cloud spoke directly to
Rutledge over the phone and asked him to begin working. Rutledge agreed but told McCracken on his way
out to his truck that he planned to visit human resources because he felt “picked on and bullied.” App.
vol. 4, 132. By then, it was around 7:45 a.m.
Later that day, Rutledge met with Cloud. Rutledge
repeated his concerns about feeling singled out at work
due to his work-related injuries, and Cloud suggested
that he transfer to a different plant in the new year.
After their conversation, Cloud emailed Klamm (copying McCracken) and wrote that Rutledge had agreed
to the proposed transfer and to “end his one[-]hour
strike in the mornings, which was triggered from his
‘needs improvement’ rating for his merit increase.” Id.
App. 7
at 134. That same day, McCracken emailed Klamm and
Cloud to report Rutledge’s harassment complaint
against him. McCracken attached some notes to the
email that detailed his recent interactions with Rutledge,
including the performance-review meeting and the
breakroom incident. Klamm passed McCracken’s email
on to Fortney in human resources.
Based on the day’s events, the County initiated
two separate investigations—one into Rutledge’s harassment and retaliation complaint against McCracken
and another into Rutledge’s alleged misconduct during
the breakroom incident. Fortney conducted the investigation into Rutledge’s complaint. She reviewed various documents and interviewed several employees,
including Rutledge, McCracken, and Cloud. In the end,
she found no evidence that McCracken harassed, bullied, or retaliated against Rutledge. Fortney shared her
findings with Klamm and director of operations and
maintenance Kenneth Kellison, the individual who
would ultimately make the decision to terminate
Rutledge’s employment. Fortney did not, however, produce an investigation report memorializing those
findings until after the County terminated Rutledge’s
employment.1
1
Although Fortney uncovered no evidence of harassment,
bullying, or retaliation, her report included two findings in
Rutledge’s favor. She found that “McCracken was unaware of the
expectations for how to rotate overtime across the team,” so she
recommended that Klamm work with him to establish a “fair and
equitable” overtime-distribution procedure. App. vol. 4, 247–48.
She also found that, unbeknownst to McCracken, employees had
been able to view Rutledge’s medical appointments logged on
App. 8
After Fortney shared her findings with Klamm
and Kellison, Klamm placed Rutledge on paid administrative leave and began investigating his alleged
misconduct during the breakroom incident. During his
interview with Klamm, Rutledge said that other employees sat in the breakroom after clocking in and that
Cloud gave him permission to do the same. Cloud and
McCracken, on the other hand, each said in their interviews that Cloud specifically told Rutledge not to do
that. Klamm also interviewed an employee who reported witnessing the breakroom incident (though
Rutledge later testified that the employee was not in
the breakroom). According to Klamm, this employee
reported that “Rutledge was sitting in the break[ ]room
with a purpose” and “seemed to be picking a fight” with
McCracken and “stirring up trouble.” Id. at 71.
After investigating the breakroom incident, Klamm
spoke with Kellison to discuss next steps. They agreed
that Rutledge’s assertion about having permission
from Cloud to not work for the first hour of the workday “was not credible on its face” and “was contradicted
by both . . . Cloud and . . . McCracken.” App. vol. 2, 166.
In fact, they observed, “nearly all of . . . Rutledge’s allegations were contradicted by one or more witnesses.”
Id. Kellison also reported knowing that “Rutledge had
historically raised allegations against others that were
not supported” and expressed “concern[ ] about the
McCracken’s Outlook calendar, which had been set to public. By
the time of Fortney’s report, McCracken had “appropriately adjusted his settings to ensure privacy of any confidential or sensitive information on his calendar.” Id. at 247.
App. 9
message it would send to the other employees” if the
County permitted “Rutledge to refuse to work and to
lie about the reasons he was not working.” Id. Kellison
then sent an email to Fortney, writing that the “plan
. . . [wa]s to proceed with termination” and that Klamm
would draft a termination notice. App. vol. 4, 269.
The next day, Klamm sent a draft termination notice to Kellison, Fortney, and deputy director of human
resources Tiffany Hentschel. The draft focused mainly
on the breakroom incident, stating that Rutledge
“l[ied] to [his] supervisor” and “was insubordinate by
refusing to work, even after his supervisor asked him
to start working.” App. vol. 6, 230. The draft additionally explained that this was not the first time Rutledge
had engaged in insubordinate conduct, noting vaguely
that he had, for example, “used unverifiable third
parties to unnecessarily convince [his] supervisor to
take or allow [him] to take specific actions” and intentionally recorded data in “illegible [handwriting] or
basic scribbles.” Id. at 229. The draft also briefly
listed “[m]ultiple examples of [Rutledge] disrupting the
work[ ]place[,] . . . including taunting co[ ]workers with
favoritism or threats, arguing over electrical outlets,
shutting off motion[-]sensor lights, among many other
irritants, which continue[d] to cause disruption, tension, and stress between [Rutledge] and [his] co[ ]workers.” Id. at 230.
After reviewing the draft, Fortney and Hentschel
both suggested some revisions. Relevant here, Hentschel
recommended deleting the additional examples of insubordination and disruption that were unrelated to
App. 10
the breakroom incident, commenting: “I suggest that
you keep this [termination notice] simple and focus on
[Rutledge] being untruthful and insubordinate” during the breakroom incident. Id. at 247. Hentschel explained that “[e]very single thing” included in the
notice would “be subject to debate[,] and the first”—
meaning the breakroom incident—was “enough to support separation.” Id. Klamm accepted Hentschel’s suggestion and revised the draft to focus exclusively on the
breakroom incident.
The next day (December 6), Kellison, Klamm,
and Fortney attended a predisciplinary meeting with
Rutledge. Kellison announced the County’s intent to
terminate Rutledge’s employment and gave Rutledge
a chance to explain the breakroom incident before
making a final decision. After the meeting, Kellison
chose to move forward with the termination because,
in his view, “Rutledge took no accountability for his behavior” and “made allegations . . . that were even more
far-fetched than the ones he had previously made.”
App. vol. 2, 167. So the County updated the termination notice to include Rutledge’s version of events, adding that “[Rutledge] continued to state that . . . Cloud
approved [his] sitting in the breakroom and [Rutledge]
did not take any ownership for [his] behavior.” App. vol
6, 258. Kellison then informed Rutledge of the termination decision and presented him with the final termination notice. Rutledge appealed the termination
decision to an administrative review panel, and the
panel upheld the decision on December 18, 2018.
App. 11
About a year later, Rutledge sued the County, asserting four claims stemming from the termination of
his employment: (1) disability discrimination under
the ADA; (2) retaliation under the ADA; (3) retaliation
under the FMLA; and (4) retaliatory discharge under
Kansas common law.2 The district court granted the
County’s motion for summary judgment on all four
claims. Rutledge appeals.
Analysis
Rutledge argues that his claims for ADA discrimination, ADA retaliation, FMLA retaliation, and retaliatory discharge under Kansas law should survive
summary judgment. “We review the district court’s order granting summary judgment de novo, applying the
same standard as the district court.” Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 882 (10th Cir. 2018).
Summary judgment is appropriate “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 genuine factual
dispute exists if “the evidence, construed in the light
most favorable to the non[ ]moving party, is such that
a reasonable jury could return a verdict for the
non[ ]moving party.” Carter v. Pathfinder Energy Servs.,
Inc., 662 F.3d 1134, 1141 (10th Cir. 2011) (quoting
2
Rutledge’s complaint also asserted several other ADA and
FMLA claims unrelated to the termination of his employment.
But he did not defend those claims at summary judgment and
does not argue on appeal that the district court erred in treating
them as abandoned, so we do not address them.
App. 12
Zwygart v. Bd. of Cnty. Comm’rs, 483 F.3d 1086, 1090
(10th Cir. 2007)).
Here, Rutledge lacks direct evidence of discrimination or retaliation, so we evaluate his claims under
the familiar burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117,
1135 (10th Cir. 2003) (applying framework to ADA and
FMLA claims); Macon v. United Parcel Serv., Inc., 743
F.3d 708, 713 (10th Cir. 2014) (noting that Kansas applies framework to retaliatory-discharge claims). At
the first step of this framework, the plaintiff must establish a prima facie case of discrimination or retaliation. See DePaula v. Easter Seals El Mirador, 859 F.3d
957, 969 (10th Cir. 2017). At the second step, the burden shifts to the employer to “articulate a legitimate,
nondiscriminatory reason for the adverse employment
action.” Id. at 970. If the employer does so, the burden
returns to the plaintiff at the third step to show by a
preponderance of the evidence “that the employer’s
justification is pretextual.” Id. (quoting Smothers v.
Solvay Chems., Inc., 740 F.3d 530, 540 (10th Cir. 2014)).
Applying this framework, the district court determined that Rutledge made out prima facie cases
of ADA discrimination, ADA retaliation, and FMLA
retaliation. And although it was “skeptical” that Rutledge met his prima facie burden on his retaliatorydischarge claim, it assumed for argument’s sake that
he did. App. vol. 7, 213. Next, citing the final termination notice given to Rutledge, the district court determined that the County had offered a legitimate,
App. 13
nondiscriminatory reason for terminating Rutledge’s
employment: his insubordination and dishonesty during the breakroom incident. And at the pretext stage,
the district court concluded that Rutledge failed to
show a genuine issue of material fact as to whether the
County’s stated reason for the termination was pretextual.
Rutledge now challenges the district court’s McDonnell Douglas analysis. We will assume at the first
step that Rutledge met his prima facie burden on all
his claims. Rutledge asserts that the County failed to
meet its burden at step two, but we agree with the district court that the County offered a facially legitimate,
nondiscriminatory reason for Rutledge’s termination.
Indeed, the County specifically stated in Rutledge’s final termination notice that he had “engaged in conduct
in violation of Johnson County Human Resources Policies by being insubordinate through [his] refusal to
work and being dishonest to [his] supervisor.” App. vol.
6, 258. This explanation satisfies the County’s “exceedingly light” second-step burden. DePaula, 859 F.3d at
970 (quoting Williams v. FedEx Corp. Servs., 849 F.3d
889, 900 (10th Cir. 2017)); see also Frappied v. Affinity
Gaming Black Hawk, LLC, 966 F.3d 1038, 1058 (10th
Cir. 2020) (explaining that second stage only requires
employer “to articulate a reason for the discipline that
is not, on its face, prohibited” and is “reasonably specific and clear” (quoting EEOC v. Flasher Co., 986
F.2d 1312, 1316 & n.4 (10th Cir. 1992))). So the burden
shifts back to Rutledge show pretext.
App. 14
“A plaintiff may show pretext by demonstrating
the ‘proffered reason is factually false[ ]’ or that ‘discrimination was a primary factor in the employer’s decision.’ ” DePaula, 859 F.3d at 970 (quoting Tabor v.
Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013)). A
plaintiff may accomplish this “by revealing weaknesses, implausibilities, inconsistencies, incoherences,
or contradictions in the employer’s proffered reason,
such that a reasonable fact finder could deem the employer’s reason unworthy of credence.” Id. (quoting Tabor, 703 F.3d at 1218). “A plaintiff may also show
pretext by demonstrating ‘the defendant acted contrary to a written company policy,’ an unwritten company policy, or a company practice ‘when making the
adverse employment decision affecting the plaintiff.’ ”
Id. (quoting Kendrick v. Penske Transp. Servs. Inc., 220
F.3d 1220, 1230 (10th Cir. 2000)). “ ‘In determining
whether the proffered reason for a decision was pretextual, we examine the facts as they appear to the person making the decision[ ]’ and ‘do not look to the
plaintiff ’s subjective evaluation of the situation.’ ” Id.
at 971 (quoting EEOC v. C.R. Eng., Inc., 644 F.3d 1028,
1044 (10th Cir. 2011)). Or put another way, a court reviewing for pretext does not “sit as a superpersonnel
department that second-guesses the company’s business decisions.” Frappied, 966 F.3d at 1059 (quoting
Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808,
813–14 (10th Cir. 2000)).
Rutledge contends that he has met his burden of
showing a genuine issue of material fact as to whether
the County’s proffered reason for terminating his
App. 15
employment was pretextual. We consider his pretext
arguments in turn.3
I.
Falsity of the Proffered Reason
Rutledge first argues that he can show pretext because the County’s proffered reason for firing him is
false: He insists that Cloud did, in fact, give him permission to sit in the breakroom for an hour after clocking in. So as Rutledge sees it, he was neither dishonest
nor insubordinate. But Rutledge focuses on the wrong
question. Because we look at the facts as they appeared to the person making the termination decision,
“[w]e do not ask whether the employer’s reasons were
wise, fair[,] or correct.” Riggs v. AirTran Airways, Inc.,
497 F.3d 1108, 1118–19 (10th Cir. 2007). Instead, “the
relevant inquiry is whether the employer honestly believed its reasons and acted in good faith upon them.”
Id. And Rutledge offers no evidence that the County
honestly believed anything other than that Cloud
never told Rutledge he could spend an hour in the
breakroom.
To be sure, as Rutledge stresses, the County “knew
he said he had permission from Cloud to sit in the
breakroom after clocking in.” Aplt. Br. 49 (emphasis
added). But the County—through Kellison, the decision-maker—concluded that Rutledge’s assertion (1)
3
As he did below, Rutledge relies on the same pretext arguments for all four of his claims. Thus, like the district court, we
follow his lead and analyze his pretext arguments as applying to
all four claims.
App. 16
“was not credible on its face” and (2) “was contradicted by both . . . Cloud and . . . McCracken.”4 App.
vol. 2, 166. And because the County did not believe that
Cloud ever gave Rutledge such permission, it decided
to fire Rutledge for his dishonesty and insubordinate
refusal to work. Even if the County was mistaken,
Rutledge presents no evidence suggesting that the
County did not honestly hold that belief. At best,
Rutledge faults the County for not accepting his side
of the story. But that is simply not enough to show pretext. See Est. of Bassatt v. Sch. Dist. No. 1, 775 F.3d
1233, 1240 (10th Cir. 2014) (holding that employer’s
“decision to believe [one employee] over [another], when
there was no direct evidence either way, is not evidence
of pretext”); Rivera v. City & Cnty. of Denver, 365 F.3d
912, 925 (10th Cir. 2004) (“Perhaps a reasonable factfinder could observe all the witnesses and believe
[p]laintiff ’s version of the events . . . [, but] that is not
the issue.”).
4
Rutledge attempts to dispute that McCracken and Cloud
contradicted his assertion, contending that “neither McCracken
nor Cloud could even remember if Cloud gave Rutledge permission to sit in the breakroom after clocking in.” Aplt. Br. 50. But
the record belies this contention. McCracken’s and Cloud’s notes
of the performance-review meeting both state that Rutledge “was
encouraged not to” sit in the breakroom for the first hour of the
workday. App. vol. 6, 299; App. vol. 4, 132. And when Klamm
spoke with Cloud and McCracken about the breakroom incident,
they each said that Cloud told Rutledge “not to do that.” App. vol.
4, 69–70.
App. 17
II.
Inconsistent Reasons
Rutledge next attempts to discredit the County’s
proffered reason with evidence that the County has offered inconsistent explanations for terminating his
employment. “Contradictions or inconsistencies in an
employer’s proffered reason for termination can be evidence of pretext.” Litzsinger v. Adams Cnty. Coroner’s
Off., 25 F.4th 1280, 1291 (10th Cir. 2022). But “pretext
cannot be established by ‘the mere fact that the [employer] has offered different explanations for its decision.’ ” Id. (alteration in original) (quoting Jaramillo v.
Colo. Jud. Dep’t, 427 F.3d 1303, 1311 (10th Cir. 2005)
(per curiam)). Instead, evidence of inconsistent explanations helps demonstrate pretext only if the employer
“changed its explanation under circumstances that
suggest dishonesty or bad faith.” Id. (quoting Twigg v.
Hawker Beechcraft Corp., 659 F.3d 987, 1002 (10th Cir.
2011)).
Rutledge contends that the County considered different reasons for terminating his employment before
it settled on the proffered reason, pointing to the various drafts of the termination notice. Recall that although Klamm’s first draft centered on Rutledge’s
dishonesty and insubordinate refusal to work during
the breakroom incident, it also listed several other examples of Rutledge’s insubordinate and disruptive behavior as additional justifications for the termination.
When Hentschel reviewed the draft, however, she recommended that Klamm keep the termination notice
“simple and focus[ed] on [Rutledge] being untruthful
and insubordinate” during the breakroom incident.
App. 18
App. vol. 6, 247. Hentschel reasoned that “[e]very single thing” listed in the notice would “be subject to
debate[,] and the first"—Rutledge’s insubordination
and dishonesty during the breakroom incident—was
“enough to support separation” on its own. Id. Klamm
followed Hentschel’s advice and focused the final termination notice on only the breakroom incident.
Relying on our decision in Fassbender, Rutledge
argues that a jury could infer from these revisions
that the County strategically “abandoned its original
explanations in favor of one that’s harder to assail because it knew that none of the explanations were true.”
890 F.3d at 888. But this case contains a key factual
distinction: Unlike the employer in Fassbender, the
County never abandoned its original, primary explanation for the termination. In Fassbender, a prison contractor fired a pregnant employee after she accepted
an inmate’s handwritten note, took it home, and waited
over 24 hours to report it. See id. at 880. Yet the contractor could not pin down which specific conduct (and
thus which specific policy violation) it fired her for, advancing several inconsistent explanations. See id. The
contractor continued to shift position even after the
employee filed a formal EEOC charge, offering in its
response letter three distinct reasons for terminating
her employment. See id. The contractor then pivoted
yet again at summary judgment, abandoning all three
rationales in favor of another, more definitive reason:
that the employee took the note home, in violation of
its policy against removing inmate correspondence
from the premises. See id. at 887–88. In reversing the
App. 19
district court’s grant of summary judgment to the
contractor, we determined that a jury could find it significant that the contractor (1) “failed to consistently
identify which of [the employee’s] acts it terminated
her for” and (2) “eventually abandoned all of the[ ] various violations [it had asserted] . . . in favor of only
a single violation.” Id. at 888. Here, by contrast, the
County has always maintained that it terminated
Rutledge’s employment for his insubordinate refusal to
work and dishonesty during the breakroom incident.
And it never abandoned that explanation—not when it
drafted the final termination notice, not when it terminated Rutledge’s employment and gave him that notice, and not at any point since then.
To be sure, during the process of drafting the final
termination notice, the County did omit some additional reasons supporting termination that were
briefly included in the first draft. But we agree with
the district court that the County’s “decision to jettison
[those] additional reasons for termination before [it]
terminated [Rutledge]’s employment—while consistently sticking with the central reason that prompted
the firing decision in the first place—doesn’t suggest
dishonesty or bad faith.” App. vol. 7, 220–21; see also
Frappied, 966 F.3d at 1059 (noting that generally
speaking, “[p]ost-hoc justifications for termination constitute evidence of pretext” (emphasis added)). All it
suggests is what Hentschel’s comment confirms: that
the County ultimately chose not to rely on the additional reasons because the breakroom incident was
enough, standing alone, to support termination. No
App. 20
reasonable jury could conclude from this decision that
the County’s consistently proffered reason was too
“weak, implausible, inconsistent, incoherent, or contradictory” to believe. Litzsinger, 25 F.4th. at 1293 (quoting Fassbender, 890 F.3d at 890).
Rutledge’s argument that the County changed its
reason for terminating his employment during litigation fares no better. Rutledge contends that Kellison’s
declaration suggests the decision was ultimately
based on Rutledge’s behavior during the predisciplinary meeting, not the breakroom incident. Yet far from
showing that the County changed its reason for terminating Rutledge’s employment after litigation began,
the declaration instead supports the County’s position
that it followed its own disciplinary policy before making the final termination decision. In particular, the
County’s policy requires a predisciplinary meeting before “taking any definitive disciplinary action” that will
“affect[ ] an employee’s position.” App. vol. 2, 21. At this
meeting, the employee must be given a chance to explain why “the intended discipline should not be imposed.” Id. at 22. In line with this policy, Kellison’s
declaration explains that he “was open to changing
[his] mind” when he walked into Rutledge’s predisciplinary meeting. Id. at 166. But after the meeting, the
declaration continues, Kellison decided to proceed
with termination because Rutledge “took no accountability for his [breakroom] behavior” and “made allegations during the meeting that were even more farfetched than the ones he had previously made.” Id. at
166–67. And contrary to Rutledge’s assertion, this is
App. 21
not something Kellison explained for the first time during this litigation: The final termination notice states
substantially the same thing, noting that during the
meeting, “[Rutledge] continued to state that . . . Cloud
approved [his] sitting in the breakroom and [Rutledge]
did not take any ownership for [his] behavior.” App. vol.
6, 258. In sum, Rutledge fails to identify any inconsistencies in the County’s proffered reason that suggest
pretext.
III. Unfair Investigations
Rutledge next argues that a jury could infer pretext because the County failed to conduct a fair investigation into the breakroom incident that triggered the
termination. Such a failure “may support an inference
of pretext.” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299,
1314 (10th Cir. 2017) (quoting Smothers, 740 F.3d at
542). “But an employer may ordinarily ‘defeat the inference’ of pretext stemming from an allegedly unfair
investigation by ‘simply asking an employee for his
version of events.’ ” Id. (quoting EEOC v. BCI CocaCola Bottling Co. of L.A., 450 F.3d 476, 488 (10th Cir.
2006)).
Here, the County twice heard Rutledge’s side of
the story before Kellison terminated his employment.
When Klamm investigated the breakroom incident,
she interviewed Rutledge and listened to his account
of what happened that morning. And Rutledge had another opportunity to explain his version of events at
the predisciplinary meeting. That the County asked
App. 22
Rutledge for his side of the story defeats any inference
of pretext from any alleged unfairness in Klamm’s investigation. See, e.g., id. (determining that plaintiff ’s
“unfair-investigation argument [wa]s overcome by the
simple fact that [the employer] asked [her] for her
version of events”); Est. of Bassatt, 775 F.3d at 1240
(same); cf. Smothers, 740 F.3d at 543 (holding that unfair investigation suggested pretext where employer
never heard plaintiff ’s version of events before terminating his employment).
Rutledge relatedly attempts to show pretext by
pointing to alleged flaws in Fortney’s investigation into
his harassment complaint against McCracken. Specifically, Rutledge highlights that Fortney did not
mention McCracken’s “tough shit” comment about the
ladder in her investigation report, even though she jotted it down in her notes when she interviewed
Rutledge. Rutledge also takes issue with Fortney’s failure to produce her investigation report until after the
termination of his employment, asserting that the delay suggests she wanted to withhold two findings that
were favorable to him: (1) that McCracken failed to distribute overtime evenly among employees; and (2) that
Rutledge’s coworkers could view his scheduled medical
appointments because McCracken’s Outlook calendar
was public.
But even assuming that flaws in an investigation
unrelated to the misconduct that triggered termination can support an inference of pretext, we see no
connection between these two alleged flaws and any
retaliatory or discriminatory purpose. See Smothers,
App. 23
740 F.3d at 539 (explaining that flaws in employer’s investigation into “the offense for which it purportedly
fired the plaintiff ” may support inference of pretext
(emphasis added)). Even if McCracken’s ladder comment was directed at Rutledge’s lifting restrictions and
should have been included in the report, the comment
was at best the kind of isolated, “stray remark by someone not in a decision-making position” that we have
said “does not establish intent to discriminate.” Jones
v. Unisys Corp., 54 F.3d 624, 632 (10th Cir. 1995); see
also Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526,
531 (10th Cir. 1994) (“Isolated comments, unrelated to
the challenged action, are insufficient to show discriminatory animus in termination decisions.”). And Fortney’s findings about McCracken’s Outlook calendar
and his distribution of overtime say nothing about the
County’s stated reason for terminating Rutledge’s employment—much less about whether that reason is
“unworthy of belief.” Litzsinger, 25 F.4th at 1288. So
no reasonable jury could find that Fortney omitted
McCracken’s comment from her investigation report or
delayed producing that report in order to justify terminating Rutledge’s employment and to disguise an improper motive in doing so.
IV. Discriminatory Comments
Next, Rutledge attempts to use several comments
made by McCracken, Cloud, and Kellison to show
App. 24
pretext.5 We have recognized that anecdotal evidence
of discriminatory conduct may support an inference of
pretext if that conduct “might have affected . . . decisions adverse to [the] plaintiff.” Ortiz v. Norton, 254
F.3d 889, 896 (10th Cir. 2001). But we have made clear
that such evidence “should only be admitted if ‘the
prior incidences of alleged discrimination can somehow be tied to the employment actions disputed in the
case at hand.’ ” Stewart v. Adolph Coors Co., 217 F.3d
1285, 1289 (10th Cir. 2000) (quoting Heno v. Sprint/
United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000)).
Rutledge first points to several comments that
McCracken and Cloud made about his FMLA leave.
Recall that according to Rutledge, McCracken sometimes called him “half-timer.” App. vol. 1, 219. Rutledge
also testified that after McCracken’s promotion, (1)
McCracken told Rutledge that he “couldn’t take” FMLA
leave and (2) McCracken and Cloud both told Rutledge
that they “want[ed]” him at work “all the time.” Id. at
207. On appeal, Rutledge concedes that “Cloud and
McCracken were not involved in deciding to fire [him].”
Aplt. Br. 61. But Rutledge asserts that the supervisors’
motives are nevertheless relevant because they “influenced” that decision. Id.
We have held that a plaintiff can establish pretext
by “presenting evidence that a biased subordinate who
5
Rutledge also asserts that a jury could infer pretext from
comments made by Fortney. But we decline to consider this argument because Rutledge did not make it below and does not argue
plain error on appeal. See Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1131 (10th Cir. 2011).
App. 25
lacked decision[-]making power used the formal decision[-] maker as a dupe in a deliberate scheme to bring
about an adverse employment action.” Thomas v. Berry
Plastics Corp., 803 F.3d 510, 515 (10th Cir. 2015). But
to succeed under this subordinate-bias theory of liability, a plaintiff must do more than show that the biased
subordinate influenced the decision-making process.
Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1060
(10th Cir. 2009). Rather, the plaintiff must establish
that “the biased subordinate’s discriminatory reports,
recommendation, or other actions caused the adverse
employment action.” Id. (emphasis added) (quoting
BCI Coca-Cola, 450 F.3d at 487). The employer can
“break the causal chain,” however, by directing someone “higher up in the decision-making process to independently investigate the grounds for dismissal.”
Singh v. Cordle, 936 F.3d 1022, 1038 (10th Cir. 2019).
Indeed, “simply asking an employee for his or her
version of events may defeat the inference” of pretext
because “such an inquiry demonstrates that ‘the employer has taken care not to rely exclusively on the sayso of the biased subordinate.’ ” Thomas, 803 F.3d at
516–17 (quoting BCI Coca-Cola, 450 F.3d at 488). Even
“an independent review that takes place after the adverse action” can “break the causal chain.” Singh, 936
F.3d at 1039 (emphasis added).
Here, Rutledge fails to show a causal relationship
between his supervisors’ alleged comments and the termination of his employment. Although McCracken and
Cloud reported the breakroom incident, Klamm independently investigated it. Again, Klamm interviewed
App. 26
Rutledge and heard his side of the story. And after
completing her investigation, Klamm presented her
findings to Kellison, who then gave Rutledge another
chance to provide his version of events at the predisciplinary meeting. Because the County asked Rutledge
to share his side of the story, he cannot establish “that
the [termination] decision was based on a subordinate’s bias.” Pinkerton, 563 F.3d at 1061.
If that were not enough, Kellison’s termination decision was not the end of the matter. In keeping with
the County’s policy, Rutledge exercised his option to
appeal the decision to an administrative review panel
by submitting a dispute-resolution form. And after conducting a hearing, at which Rutledge had the opportunity to call witnesses, the panel affirmed. Rutledge
does not argue—and no evidence suggests—“that the
[p]anel’s review was a sham” or that any allegedly discriminatory or retaliatory motive infected its review.
Thomas, 803 F.3d at 517; see also, e.g., id. (holding that
employer’s “virtually immediate post-termination review process—which was designed to identify and
unwind termination decisions that violated company
practices and policies—sufficiently constrained any retaliatory animus that [the immediate supervisor] may
have possessed”). Rutledge therefore fails to show that
McCracken’s or Cloud’s alleged comments caused either Kellison’s or the panel’s decision.
Shifting his focus to the decision-maker, Rutledge
next points to two statements from Kellison that, in his
view, reveal Kellison acted with a discriminatory and
retaliatory motive. Rutledge first notes that in 2015,
App. 27
Kellison reported feeling threatened when Rutledge
said that he was “going to put [Kellison] under oath”
at a workers’ compensation hearing. App. vol 7, 39. But
even if we accept Rutledge’s characterization of Kellison’s report as revealing a discriminatory or retaliatory motive, Rutledge cannot tie it to the termination
of his employment. That’s because Kellison made the
comment three years before the termination, rendering it too temporally remote to suggest pretext. See
Heno, 208 F.3d at 856 (noting that discriminatory incidents from “several years before the [termination] . . .
are ‘not sufficiently connected to the employment action
in question to demonstrate pretext’ ” (quoting Simms v.
Oklahoma, 165 F.3d 1321, 1330 (10th Cir. 1999))); Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1182, 1184
(10th Cir. 2006) (finding comment made nine months
before termination too remote to show pretext).
Rutledge next highlights portions of Kellison’s
deposition testimony in which Kellison agreed that
Rutledge “could be delusional” and “[p]aranoid.” App.
vol. 7, 46. But as the district court pointed out, Kellison’s belief that Rutledge might be delusional and
paranoid tells us nothing about Kellison’s views on
“[Rutledge]’s workplace injuries, his resulting disabilities, his FMLA leave, or his workers’ compensation
claim.” Id. at 231. Because Kellison’s testimony sheds
no light on whether Kellison harbored a discriminatory or retaliatory motive, it does not constitute evidence of pretext.
App. 28
V.
Deviation from Disciplinary Policy
Rutledge next argues that the County’s failure to
follow its progressive discipline policy shows pretext.
See Kendrick, 220 F.3d at 1230 (noting plaintiff can
show pretext “with evidence that the defendant acted
contrary to a written company policy prescribing the
action to be taken by the defendant under the circumstances”). In support, Rutledge invokes a policy provision stating that the County should generally not
terminate employment unless “other forms of discipline have not resolved the issue” or there were “multiple or repeated incidents of misconduct.” App. vol. 2,
21. But as Rutledge acknowledges, the County’s policy
is discretionary. In fact, the policy explicitly allows
management to skip disciplinary steps and even “terminate the employment relationship without using
other levels of discipline.” Id. at 18. When, as here,
“ ‘progressive discipline [is] entirely discretionary,’ and
the employer ‘did not ignore any established company
policy in its choice of sanction, the failure to implement
progressive discipline is not evidence of pretext.’ ” Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1291 (10th Cir.
2013) (alteration in original) (quoting Timmerman v.
U.S. Bank, N.A., 483 F.3d 1106, 1120 (10th Cir. 2007)).
Given the discretionary nature of the County’s disciplinary policy, no reasonable jury could find that the
County’s failure to use progressive discipline shows
pretext.
App. 29
VI. Disparate Treatment
In a final attempt to show pretext, Rutledge argues that the County treated him differently than
other employees who also spent time in the breakroom
after clocking in. See Kendrick, 220 F.3d at 1230 (noting that plaintiff can show pretext by providing evidence that employer “treated [plaintiff ] differently
from other similarly [ ]situated employees who violated
work rules of comparable seriousness”). But Rutledge
identifies no similarly situated employees who, like
him, not only sat in the breakroom after clocking in but
also refused to work when specifically asked to do so
and insisted that they had permission to socialize for
an hour after clocking in. Given Rutledge’s distinct
conduct, which the County viewed as both dishonest
and insubordinate, Rutledge fails to show any disparate treatment that could establish pretext.
At bottom, Rutledge’s proffered pretext evidence,
even considered together, would not allow a reasonable
jury to find the County’s stated reason for terminating
his employment “unworthy of credence.” DePaula, 859
F.3d at 970 (quoting Tabor, 703 F.3d at 1218). Rutledge
thus fails to create a genuine issue of material fact as
to pretext, and the district court properly granted summary judgment to the County.
Conclusion
Because Rutledge produced no evidence that the
County’s proffered reason for terminating his employment—his dishonesty and insubordination during the
App. 30
breakroom incident—was merely a pretext for discrimination or retaliation, we affirm.
App. 31
2022 WL 910724
Only the Westlaw citation is currently available.
United States District Court, D. Kansas.
Ron RUTLEDGE, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF
JOHNSON COUNTY, KANSAS, Defendant.
Case No. 20-2012-DDC-GEB
|
Signed 03/29/2022
Attorneys and Law Firms
Dennis E. Egan, The Popham Law Firm, PC, Kansas
City, MO, Kenneth D. Kinney, Ralston Kinney, LLC,
Kansas City, MO, Fredrick D. Deay, II, Overland Park,
KS, for Defendant.
Bonnie Gail Birdsell, Jeannie DeVeney, Littler Mendelson, PC, Kansas City, MO, for Defendant.
MEMORANDUM AND ORDER
Daniel D. Crabtree, United States District Judge
Plaintiff Ron Rutledge worked for defendant Board
of County Commissioners of Johnson County, Kansas
in the Wastewater Department for 13 years. But in
2018, defendant terminated plaintiff’s employment
after plaintiff sat in the breakroom for an hour one
morning and refused to work. Plaintiff argued he had
permission to do so. But defendant didn’t believe
him. At the same time, plaintiff filed a harassment
App. 32
complaint against his supervisor. And, after investigating, defendant concluded plaintiff ’s supervisor neither
had harassed him nor retaliated against him. This case
is about those specific episodes and whether defendant
discriminated or retaliated against plaintiff when it
terminated his employment, and thus violated the
Americans with Disabilities Act (ADA),1 the Family
and Medical Leave Act (FMLA), or Kansas common
law.
To understand this case fully, both plaintiff and
defendant ask the court to consider their entire 13year employment relationship. Plaintiff highlights how,
over the years, he sustained multiple workplace injuries, took extensive FMLA leave, and required multiple
ADA accommodations. In plaintiff ’s view, defendant
resented him for his frequent injuries and resulting
disability, and ultimately hatched a multi-year plot to
terminate his employment. Defendant sees things differently. For its part, defendant recounts several unsubstantiated complaints that plaintiff lodged against
his fellow employees, who he often accused of bullying
and harassment. Defendant argues that this history
mattered when it investigated plaintiff ’s contention
1
Plaintiff seeks relief under the ADA. See Doc. 61 at 2 (Pretrial Order ¶ 1.d.). The court construes the action as one under
the ADA, as amended by the ADA Amendments Act of 2008
(ADAAA), and relies on that governing version of the ADA when
ruling the pending motion. See Skerce v. Torgeson Elec. Co., 852
F. App’x 357, 361–62 (10th Cir. 2021) (discussing Adair v. City of
Muskogee, 823 F.3d 1297, 1304 (10th Cir. 2016)).
App. 33
that he had permission to sit in the break room for an
hour in the morning without working.
The 13-year relationship the parties recount is
lengthy and detailed. Indeed, the parties’ briefing on
the current motion is just shy of 400 pages and submits
779 statements of purportedly undisputed facts, supported by 238 exhibits. But in the end, this case is quite
simple: was defendant’s decision to terminate plaintiff ’s employment because of the breakroom incident a
pretext for discrimination or retaliation? Defendant
argues it was not, and so moves for summary judgment
against plaintiff ’s claims (Doc. 64). Because the undisputed material facts show that defendant is entitled to
judgment as a matter of law, the court grants summary
judgment for defendant. The court explains this ruling,
below.
Factual Background2
i.
Plaintiff began working as a line and inspection
crew member in the Johnson County Wastewater Department in 2005. Doc. 61 at 2 (Pretrial Order ¶¶ 2.a.1–
2). In that job, he inspected manholes and cleaned
sewer lines. Doc. 65-1 at 10 (Pl.’s Dep. 30:19–31:2). He
eventually became a truck driver and worked in that
position for the rest of his employment with defendant.
Doc. 61 at 3 (Pretrial Order ¶¶ 2.a.6–7).
2
The following facts either are stipulated in the Pretrial Order (Doc. 61), uncontroverted, or, where controverted, presented
in the light most favorable to plaintiff. Scott v. Harris, 550 U.S.
372, 378 (2007).
App. 34
It’s undisputed that plaintiff ’s mental proficiency
is below average. Indeed, defendant’s corporate representative and one of plaintiff ’s supervisors knew that
plaintiff had a limited education and read at a thirdgrade level. See Doc. 72-37 at 4 (Hentschel 30(b)(6)
Dep. 19:22–20:4); Doc. 72-33 at 12 (Cloud Dep. 53:20–
22).
The parties provide a lengthy and detailed history
of their 13-year employment relationship. For the sake
of brevity, the court provides a general overview for
most of this 13-year period. The court thus provides an
overview of (1) the relevant cast of characters, (2)
plaintiff ’s workplace injuries, and (3) his workplace
harassment complaints. The court discusses some specific facts from this period, where material to defendant’s motion. But for the most part, the court defers its
statement of specific facts for the events directly surrounding the termination of plaintiff ’s employment.
Cast of Characters
For clarity, the court first provides this list of the
relevant individuals in this case and their roles in defendant’s organizational structure:
•
Mr. Kenneth Kellison, Director of Operations and Maintenance for defendant’s
Wastewater Department: He made the decision to terminate plaintiff ’s employment. Doc.
65-29 at 1 (Kellison Decl. ¶ 2).
•
Ms. Jeanette Klamm, Assistant Director of
Operations and Maintenance for defendant’s
App. 35
Wastewater Department: She investigated the
breakroom incident and participated in the
decision to terminate plaintiff ’s employment.
Doc. 65-131 at 2 (Klamm Decl. ¶ 2).
3
•
Ms. Tiffany Hentschel, Deputy Director of
Human Resources and defendant’s Rule 30(b)(6)
Corporate Representative: She investigated
plaintiff ’s harassment complaint and participated in the decision to terminate plaintiff ’s
employment. Doc. 65-8 at 2 (Hentschel Decl.
¶ 2); see generally Doc. 72-1 (Hentschel 30(b)(6)
Dep.).
•
Ms. Leslie Fortney,3 Human Resources Partner: She investigated plaintiff ’s harassment
complaints and participated in the decision to
terminate plaintiff ’s employment. Doc. 65-69
at 1 (Fortney Decl. ¶ 2).
•
Mr. Jeremy McCracken, Assistant Superintendent at the Blue River Treatment Plant,
where plaintiff worked: He was plaintiff ’s direct supervisor in the months leading up to
termination of plaintiff ’s employment. Doc.
65-126 at 2 (McCracken Decl. ¶¶ 2–3); Doc.
72-1 at 21 (Hentschel 30(b)(6) Dep. 83:23–25).
•
Mr. George Cloud, Superintendent at the Blue
River Treatment Plant from 2018 to 2020: He
supervised McCracken in the months leading
up to termination of plaintiff ’s employment.
In several places in the record, Ms. Fortney is identified by
her birth name, Irwin. See Doc. 65 at 34 n.9.
App. 36
Doc. 65-148 at 2 (Cloud Decl. ¶ 2); Doc. 72-1 at
21 (Hentschel 30(b)(6) Dep. 84:1–3).
Overview of Plaintiff ’s Workplace Injuries
Throughout his employment, plaintiff reported 11
workplace injuries. Doc. 61 at 2 (Pretrial Order ¶ 2.a.3.).
The first occurred in 2006. Id. at 3 (Pretrial Order
¶ 2.a.4.). That injury required three surgeries on plaintiff ’s neck and shoulder, resulting in several work restrictions and leaves of absence. Id. (Pretrial Order
¶ 2.a.5.). Importantly, that injury left plaintiff with a
disability that defendant doesn’t dispute for purposes
of its motion. See Doc. 65 at 89. And, plaintiff filed a
workers’ compensation claim for that injury, which the
court discusses in more detail below. Doc. 65-8 at 5
(Hentschel Decl. ¶ 20). For three years after this injury,
defendant accommodated plaintiff ’s injury by changing some of his job requirements, adhering to certain
lifting restrictions, and allowing leaves of absence. Doc.
61 at 3 (Pretrial Order ¶ 2.a.5.). But ultimately, because of plaintiff ’s inability to perform his job, defendant transferred plaintiff to a truck driver position in
2009. Id. (Pretrial Order ¶ 2.a.6.).
Plaintiff sustained several other workplace injuries during his employment. The details of those injuries aren’t important for this Order, but the gist of
them is this: plaintiff ’s injuries often resulted in significant work restrictions, which defendant accommodated throughout the years. See Doc. 61 at 3 (Pretrial
Order ¶ 2.a.8.). Defendant also provided plaintiff with
App. 37
several leaves of absence, and one of them extended
for almost a year and a half. See id. (Pretrial Order
¶ 2.a.9.).
Given plaintiff ’s extensive work restrictions, defendant discussed reassignment as a possible accommodation. During an eight-month stretch in 2014 and
2015, Ms. Fortney—an HR partner—met with plaintiff
to discuss possible reassignment. See Doc. 65-69 at 2–
3 (Fortney Decl. ¶¶ 5–11). While the specifics of that
accommodation process are disputed, the result is not:
after eight months of accommodation meetings between plaintiff and defendant, plaintiff returned to
work as a truck driver. See Doc. 65-8 at 7 (Hentschel
Decl. ¶ 37); Doc. 65-1 at 66 (Pl.’s Dep. 254:3–24). And,
following the advice of plaintiff ’s doctor, defendant accommodated plaintiff ’s weight-lifting restrictions. Doc.
65-1 at 66 (Pl.’s Dep. 254:3–24); Doc. 65-29 (Kellison
Decl. ¶ 34); see also Doc. 65-96 (Medical Accommodation Request Form).
Of note, at the beginning of the accommodation
process, Ms. Hentschel—defendant’s Deputy HR Director—sent an email to Ms. Fortney and Mr. Kellison.
See Doc. 65-70 at 2. Her email acknowledged that, during 2014, plaintiff and defendant still were working to
settle plaintiff ’s workers’ compensation claim from his
2006 injury. Ms. Hentschel noted that these settlement
negotiations would occur simultaneously with the accommodation process. And so, should plaintiff require
further medical treatment from the workers’ compensation claim—and potentially “some kind of work restriction” as a result—then “that could put a kink in
App. 38
[defendant’s] plans” to reassign defendant to a new position within 60 days. Id.
The parties discuss several other relatively minor
workplace injuries that led plaintiff to take medical
leave for a few days at a time. See, e.g., Doc. 72 at 7781. But those injuries and any factual disputes that accompany them are immaterial to this Order.
Overview of Plaintiff ’s Workplace Complaints
Throughout his employment, plaintiff also lodged
several workplace complaints against his co-workers.
Defendant regularly investigated these complaints.
The specifics of the complaints and the investigations
aren’t material to this Order. And, in any event, plaintiff objects to several of the details gleaned from the
investigations as inadmissible hearsay. But, for purposes of this Order, the court notes three things about
these complaints and the investigations that followed
them. First, plaintiff often complained that others were
singling him out or harassing him because of his workplace injuries. See, e.g., Docs. 65-44; 65-99. Second, defendant investigated these complaints, but never
found any merit to them. See Docs. 65-23; 65-36; 65-45;
65-102. And third, the memoranda of defendant’s investigations, as well as plaintiff ’s mostly positive performance reviews, frequently refer to plaintiff telling
his co-workers that he would report their actions to his
attorney. See, e.g., Docs. 65-22; 65-23; 65-41; 65-45 at 45; 65-102 at 2-3. While plaintiff denies that he ever did
such a thing, see Doc. 65-1 at 33, 36 (Pl.’s Dep. 123:3–9,
App. 39
134:16–23), he doesn’t deny that defendant made a record about several of these threats. See, e.g., Doc. 72 at
20-21 (Uncontroverted Statement of Facts ¶¶ 52, 54).
Again, the details of each workplace complaint
aren’t material to this Order. But the gist of them is
this: plaintiff often felt targeted and singled out for his
workplace injuries; meanwhile, Mr. Kellison—then Assistant Director of Operations and, later, the person
who decided to fire plaintiff—believed that plaintiff
“had historically raised allegations against others that
were not supported.” Doc. 65-29 at 11 (Kellison Decl.
¶ 60).
Plaintiff’s Interactions with Jeremy McCracken
Before 2018, Mr. McCracken worked as an electrician at the Blue River Treatment Plant, where plaintiff also worked. Doc. 65-126 at 2 (McCracken Decl.
¶ 3). While the two interacted daily, Mr. McCracken
didn’t have any supervisory authority over plaintiff
when they first began working together. Id. But,
Mr. McCracken observed several workplace incidents
where Mr. McCracken believed plaintiff had threatened co-workers with legal action. Id. at 2–3 (McCracken Decl. ¶¶ 6–8). So, Mr. McCracken encouraged
his co-workers to report plaintiff to human resources
for violating defendant’s Positive Employee Relations
Policy. Id. at 3 (McCracken Decl. ¶ 9).
Eventually, Mr. McCracken himself reported plaintiff ’s behavior to human resources. Mr. McCracken’s
complaint focused on an episode where plaintiff had
App. 40
informed him and other employees at the plant that
Mr. Kellison stopped by one afternoon and was upset
that no employees other than plaintiff were there. But
Mr. Kellison had not visited the plant that day, and
plaintiff later admitted he was just teasing his coworkers. Doc. 65-126 at 3 (McCracken Decl. ¶ 11–12);
Doc. 65-29 at 10 (Kellison Decl. ¶ 54); Doc. 65-127 at 2
(Fortney email documenting McCracken’s complaint).
Mr. McCracken believed that plaintiff’s actions “caused
disruption and tension in the workplace.” Doc. 65-126
at 4 (McCracken Decl. ¶ 14).
In 2018, Mr. McCracken applied for an Assistant
Superintendent position at the Blue River plant. Id.
(McCracken Decl. ¶ 16). Plaintiff told the Superintendent at that time, Tim Engbroten, that he had overheard his co-workers saying that if Mr. McCracken got
the position, he would bully plaintiff. Doc. 65-128 (HR
Emails); Doc. 65-1 at 70 (Pl.’s Dep. 270:14–24). Jeannette Klamm—Assistant Director of Operations at the
Wastewater Department—investigated the incident.
Doc. 65-131 at 2 (Klamm Decl. ¶ 3–4). When she spoke
with plaintiff, he wouldn’t answer her questions. Doc.
72-6 at 4 (Klamm Dep. 24:9–13). And after interviewing a few other employees at the plant, Ms. Klamm
concluded that though plaintiff “had alienated many of
his coworkers,” she “had no reason to believe Mr.
McCracken had or would treat [plaintiff ] inappropriately.” Doc. 65-131 at 2 (Klamm Decl. ¶¶ 3–4). In his
deposition, plaintiff testified that he couldn’t remember where at work he heard the rumor about Mr.
McCracken bullying him, nor could he remember who
App. 41
had said it. Doc. 65-1 at 70 (Pl.’s Dep. 270:14–24). But
plaintiff did testify that Mr. McCracken and a few
other employees called him “half-timer” because of his
FMLA leave. Plaintiff doesn’t remember how many
times Mr. McCracken called him “half-timer.” He didn’t
report those comments to anyone. Id. at 35–36 (Pl.’s
Dep. 131:7–133:8).
In May 2018, Mr. McCracken became the Assistant Superintendent at the Blue River Plant. Doc. 658 at 8 (Hentschel Decl. ¶ 40). At that time, he became
plaintiff ’s direct supervisor. Doc. 72-1 at 21 (Hentschel
30(b)(6) Dep. 83:23–25).
The Months Before Defendant
Terminated Plaintiff ’s Employment
In the summer of 2018, George Cloud became Superintendent at the Blue River plant. Doc. 65-133 at 4
(Cloud Dep. 38:2–4). Mr. Cloud primarily was stationed
at another plant where he also served as Superintendent. See Doc. 65-148 at 2 (Cloud Decl. ¶ 2). But when
he was at the Blue River plant, he usually interacted
with plaintiff two times a week. Doc. 65-133 at 5 (Cloud
Dep. 51:5–52:1). There are four other relevant episodes that occurred in the summer of 2018—just a few
months before defendant terminated plaintiff ’s employment in December of that year. The court briefly
summarizes each one, below.
First, in May of 2018, plaintiff met with Mr.
McCracken and told him he “had documented proof
of people spying on him.” Doc. 65-132 at 2 (Incident
App. 42
Report). He claimed that people were going through his
computer and his desk. When Mr. McCracken asked if
plaintiff had any proof of his suspicions, plaintiff said
he would provide proof “when the time was right.” Id.
Ms. Klamm investigated plaintiff ’s allegation and, ultimately, she found that no one was spying on plaintiff
or otherwise acting inappropriately. Doc. 65-131 at 3
(Klamm Decl. ¶¶ 5–7).
Second, in June of 2018, plaintiff reported to Mr.
McCracken that a chair in the room where he was doing paperwork was broken and didn’t have a back on
it. Doc. 65-1 at 70-71 (Pl.’s Dep. 271:2–273:4); Doc. 65134 (Picture of the Chair); Doc. 65-125 at 9 (McCracken
Dep. 67:23–68:2). Sometime afterwards, plaintiff sat in
the chair, it sprang him backwards, and plaintiff sustained injuries to his neck, lower back, and shoulders.
Doc. 65-135. As a result, plaintiff ’s doctor issued several physical work restrictions for him. Doc. 65-136.
And, defendant approved plaintiff for FMLA leave
shortly afterwards. Doc. 72-20 at 14. Plaintiff sustained another workplace injury in July when a sewer
hose spewed sludge on him. Defendant approved plaintiff for FMLA leave for that injury as well. Doc. 72-1 at
25-26 (Hentschel 30(b)(6) Dep. 99:16–101:8).
Third, in September of the same year, Mr. McCracken
sent Mr. Cloud a draft employee assessment for plaintiff. In that draft assessment, McCracken wrote that
plaintiff was “job proficient[,]” but noted several times
that plaintiff performed deficiently when it came to
team work, leadership, and learning and development.
Doc. 65-144 at 5.
App. 43
Fourth, sometime later in September, plaintiff told
Mr. McCracken that the ladder he had used for his
truck checks (which conformed to his lifting restrictions
and weight capacity) was missing. The summary judgment record is fuzzy about this episode, and the parties
present slightly different accounts of it. According to
plaintiff, the ladder was moved to a “utility truck van”
that Mr. McCracken used to drive. Doc. 65-1 at 12 (Pl.’s
Dep. 37:12–24). But plaintiff didn’t report that he had
seen his ladder there because he believed “it would
start a fight.” Id. (Pl.’s Dep. 37:25–38:4). As he remembers it, plaintiff requested that Mr. McCracken replace
his old ladder. On the other hand, according to Mr.
McCracken, plaintiff wanted to use an unapproved ladder that couldn’t hold his weight. Doc. 65-126 at 5
(McCracken Decl. ¶ 23). So, Mr. McCracken emailed
the plant safety manager, asking if plaintiff could use
the unapproved ladder. See Doc. 65-146. The safety
manager responded that plaintiff could use “only ladders that have the correct load capacity[,]” and instructed Mr. McCracken to “purchase a ladder [for
plaintiff ] that meets lifting restrictions as well as load
capacity.” Id. at 2. Mr. McCracken forwarded this email
to plaintiff and instructed him not to use a ladder that
didn’t meet his weight requirements. Doc. 65-147 at 2.
He told plaintiff he would “look into it and see if we can
find a ladder that meets your weight requirements and
lifting restrictions.” Id. Eventually, Mr. McCracken and
Mr. Cloud worked together to purchase a rolling ladder
sufficient to bear plaintiff ’s weight and that didn’t require any lifting. See Doc. 65-126 at 5 (McCracken
Decl. ¶ 27); Doc. 65-148 at 2-3 (Cloud Decl. ¶¶ 3–5).
App. 44
There’s also a dispute about a comment Mr.
McCracken made to plaintiff during this episode.
Plaintiff testified that when he asked Mr. McCracken
to replace the ladder, Mr. McCracken responded, “tough
shit” and told plaintiff he would use whatever ladder
Mr. McCracken could find for him. Doc. 65-1 at 12
(Pl.’s Dep. 38:25–39:10). Plaintiff maintains that Mr.
McCracken’s “tough shit” comment was about his lifting restrictions. Id. at 80 (Pl.’s Dep. 311:19–312:4). But
defendant—relying on notes taken by Ms. Fortney
when she interviewed plaintiff about this episode—
contends that the “tough shit” comment was made in
response to plaintiff and another employee’s complaints that the rolling ladder defendant had purchased was difficult to use. See Doc. 65-154 at 3; see
also Doc. 72-44 at 3 (Mr. McCracken noting (1) plaintiff ’s complaints about the rolling ladder’s safety rails
preventing him from getting under his truck’s hood,
and (2) Mr. McCracken’s direction for plaintiff “to use
the ladder to do what he could”). For the disputes about
this comment and the request for a ladder, the court
adopts plaintiff ’s version of events. That is, construing
all inferences in favor of plaintiff as non-movant, the
court accepts that: (1) plaintiff asked Mr. McCracken
to replace his old ladder that conformed with his lifting
restrictions; and (2) Mr. McCracken’s “tough shit” comment was about plaintiff ’s lifting restrictions.
Somewhat related, plaintiff also testified about
some general comments Mr. McCracken and Mr. Cloud
made to him about his FMLA leave. Plaintiff testified
that, before he was fired, Mr. McCracken told him he
App. 45
couldn’t take FMLA leave. See, e.g., Doc. 65-1 at 11
(Pl.’s Dep. 35:11–15) (“Q. So tell me the conversation
where [Mr. McCracken] said you couldn’t get FMLA. A.
I walked out, and I said, I told him, I said, ‘I’m on
FMLA. I need new paperwork for the new year FMLA,’
and he said, ‘No, no FMLA.’ ”). Plaintiff also testified
that, when he would return from FMLA leave, Mr.
McCracken and Mr. Cloud both told him that they
wanted him at work all the time. See id. at 23 (Pl.’s
Dep. 83:16–84:12) (testifying that Mr. McCracken said
this “every time” plaintiff took FMLA leave, and Mr.
Cloud said this “two or three times”).
The Breakroom Incident
On November 7 and 8, 2018, plaintiff took FMLA
leave. Doc. 65-126 at 5-6 (McCracken Decl. ¶¶ 28, 31).
Mr. McCracken emailed Ms. Fortney asking if plaintiff was approved for this leave. See Doc. 65-149 at 2.
Ms. Fortney responded that plaintiff was approved for
intermittent FMLA leave because of his injuries. Id.
She also suggested that Mr. McCracken proactively
send plaintiff new FMLA paperwork by year’s end
since plaintiff ’s FMLA leave was “recurring[.]” Id. Mr.
McCracken then scheduled two meetings with plaintiff
to discuss whether he needed to renew his intermittent
FMLA leave in the new year. Id.
The day plaintiff returned from FMLA leave—November 9—he met with Mr. McCracken and Mr. Cloud
for a performance review. Doc. 72-33 at 11 (Cloud Dep.
50:23–51:5). During that meeting, Mr. McCracken and
App. 46
Mr. Cloud told plaintiff that he had done well in his
work performance, but that he needed to improve on
his teamwork, leadership, and learning and development. The two also told plaintiff that he would receive
a 1% raise for the year, which was the lowest raise the
County allowed. Doc. 65-150 at 5 (McCracken Notes of
Nov. 9 Meeting); Doc. 72-36 at 3 (Cloud Notes of Nov. 9
Meeting); Doc. 72-33 at 14 (Cloud Dep. 67:3–6, 67:19–
20). Only one other employee received a 1% raise that
year. See Doc. 65-125 at 13 (McCracken Dep. 147:7–16).
According to Mr. McCracken and Mr. Cloud, plaintiff
was upset by this news. He told them that he felt “targeted” and “singled out” because of the workplace injury he had sustained several years earlier.4 Doc. 65150 at 5 (McCracken Notes of Nov. 9 Meeting); Doc. 7236 at 3 (Cloud Notes of Nov. 9 Meeting). Mr. Cloud then
discussed the possibility of plaintiff transferring to another plant, given his interpersonal issues with other
employees at the Blue River plant. See Doc. 72-36 at 3
(Cloud Notes of Nov. 9 Meeting); see also Doc. 72-22
(Cloud Nov. 13 Email).
4
Plaintiff testified that he didn’t remember Mr. Cloud or Mr.
McCracken discussing his performance review with him. Nor did
he remember saying he felt “targeted” or “singled out” because of
his injuries. See Doc. 65-1 at 13, 76 (Pl.’s Dep. 43:10–13; 44:18–
25; 294:19–295:11). But in “a response to a motion for summary
judgment, a party cannot rest on ignorance of facts” to create a
genuine dispute of material fact. Conaway v. Smith, 853 F.2d 789,
794 (10th Cir. 1988). And, in any event, defendant’s version of the
facts here—that plaintiff reported feeling targeted and singled
out because of his workplace injuries—favors plaintiff.
App. 47
At some point during this meeting, plaintiff also
told Mr. McCracken and Mr. Cloud that other employees sat in the breakroom for an hour every morning
without working. According to Mr. McCracken and Mr.
Cloud, plaintiff told them he would start doing the
same. See Doc. 65-150 at 5 (McCracken Notes of Nov. 9
Meeting); Doc. 72-36 at 3 (Cloud Notes of Nov. 9 Meeting); Doc. 72-22 (Cloud Nov. 13 Email). Sometime after
he said that, Mr. McCracken left the meeting. Then, Mr.
Cloud and plaintiff continued to talk for 30-45 minutes.
Doc. 72-33 at 19 (Cloud Dep. 96:2–8). That’s when the
record becomes mixed. According to Mr. Cloud, he discouraged plaintiff from sitting in the breakroom for an
hour without working. And, at the end of the meeting,
he believed that plaintiff had agreed not to do so. See
Doc. 72-36 at 3 (Cloud Notes of Nov. 9 Meeting); Doc.
72-22 (Cloud Nov. 13 Email). But according to plaintiff,
Mr. Cloud suggested “stay[ing] in the break room and
mingl[ing]” with his co-workers “for about a half hour
or so.” Doc. 65-1 at 13 (Pl.’s Dep. 43:16–22). So, plaintiff
planned to go into the breakroom the next workday
and not work for an hour. Id. at 76 (Pl.’s Dep. 295:12–
16). Plaintiff believed he had permission from Mr.
Cloud to do this. Id. (Pl.’s Dep. 296:4–7). The court resolves this dispute in plaintiff ’s favor, as he is the nonmovant. Thus, the court adopts plaintiff ’s contention
that he had permission from Mr. Cloud to sit in the
breakroom without working for an hour.
The next workday was November 13. That morning, plaintiff left a voicemail for Ms. Fortney saying
that he believed Mr. McCracken was bullying him and
App. 48
retaliating against him because he had received a 1%
raise. See Docs. 65-152, 65-153. Plaintiff then arrived
at work at 7:00 a.m. and sat in the breakroom with
several other employees. Doc. 65-1 at 14 (Pl.’s Dep.
45:8–21, 46:11–13). Later, Mr. McCracken came into
the breakroom and asked plaintiff to start working.
Plaintiff said he wouldn’t, and that he would stay in
the breakroom until 8:00 a.m. because Mr. Cloud had
given him permission to do so. Mr. McCracken then
called Mr. Cloud and asked if this was true. Mr. Cloud
said it wasn’t. Plaintiff himself then called Mr. Cloud,
who told plaintiff he had better get to work. Plaintiff
then told Mr. McCracken that he was going to see
HR because he felt bullied and targeted. See Doc.
65-1 at 14 (Pl.’s Dep. 46:14–47:19); Doc. 65-125 at 12
(McCracken Dep. 114:1–116:15); Doc. 65-150 at 5
(McCracken Notes); Doc. 72-36 at 3 (Cloud Notes).
After leaving, plaintiff visited the other plant
where Mr. Cloud worked. The two again discussed the
possibility of plaintiff transferring to that plant. See
Doc. 65-1 at 78 (Pl.’s Dep. 301:22–302:5). Mr. Cloud
then emailed Ms. Klamm and Mr. McCracken with his
notes about the day’s events. Specifically, he told them
that plaintiff (1) had agreed to transfer to a different
plant after the new year, and (2) also had “agreed to
end his one hour strike in the mornings, which was
triggered from his ‘needs improvement’ rating for his
merit [salary] increase.” Doc. 72-22 at 2 (Cloud November 13 Email).
After his conversation with plaintiff, Mr. McCracken
sent an email to Ms. Klamm (also copying Mr. Cloud),
App. 49
alerting her of plaintiff’s harassment complaint against
him. He included several notes about his recent interactions with plaintiff. Mr. McCracken emphasized the
breakroom incident and plaintiff ’s contention that Mr.
Cloud had told him he could sit in the breakroom for
an hour without working. Ms. Klamm forwarded that
email to Ms. Fortney. See Doc. 65-150.
Plaintiff’s voicemail complaint and Mr. McCracken’s
email raised two issues: (1) harassment and retaliation
by Mr. McCracken, and (2) workplace misconduct by
plaintiff, i.e., the breakroom incident. See Doc. 65-152;
Doc. 72-1 at 27 (Hentschel 30(b)(6) Dep. 106:6–10). As
a result, defendant began two separate investigations.
Ms. Fortney investigated plaintiff ’s harassment and
retaliation complaint against Mr. McCracken. And Ms.
Klamm investigated the breakroom incident. Doc. 721 at 29 (Hentschel 30(b)(6) Dep. 113:20–114:12).
Ms. Fortney and Ms. Klamm’s Investigations
The court already has recounted the fruits of Ms.
Fortney and Ms. Klamm’s investigations. Specifically,
pages 8 through 14 of this Order describe the events
before, during, and after the breakroom incident. So,
the court won’t repeat those facts here—both because
it’s unnecessary and because plaintiff often has objected to the records of Ms. Fortney and Ms. Klamm’s
interviews with relevant witnesses as inadmissible
hearsay.5 So, in this section, the court merely recounts
5
The facts recited above about the breakroom incident were
drawn from deposition testimony and declarations from the
App. 50
the steps Ms. Fortney and Ms. Klamm took during
their investigations. But, where relevant and uncontroverted, the court recounts certain facts recorded by
Ms. Fortney and Ms. Klamm in their notes.
Ms. Fortney began investigating plaintiff ’s complaint against Mr. McCracken the day after he reported it. She began by interviewing plaintiff. Doc. 6569 at 4 (Fortney Decl. ¶ 23); Doc. 65-154 (Fortney notes
of interview with plaintiff ). In her notes from her interview with plaintiff, Ms. Fortney noted plaintiff ’s
feeling that he felt “bullied about [his] raise this
year[.]” Doc. 65-154 at 2. Ms. Fortney also noted Mr.
McCracken’s “tough shit” comment about the ladder,
discussed above. Id. at 3. But, in a letter summarizing
the meeting that Ms. Fortney later sent to plaintiff, she
omitted the “tough shit” comment about the ladder. See
Doc. 65-162.
Ms. Fortney next interviewed Mr. McCracken and
Mr. Cloud separately. Doc. 65-69 at 5, 6 (Fortney Decl.
¶¶ 25, 33); Doc. 65-159 (Fortney notes of interview with
McCracken); Doc. 65-160 (Fortney notes of interview
with Cloud). She asked both of them about the breakroom incident and the issue with the ladder.
In the end, Ms. Fortney found no evidence that Mr.
McCracken had harassed, bullied, or retaliated against
plaintiff. Doc. 65-69 at 8 (Fortney Decl. ¶ 44). She also
concluded that she found “no reason to believe that Mr.
McCracken treated [plaintiff ] differently due to his
relevant individuals with personal knowledge. So, those facts
aren’t inadmissible hearsay.
App. 51
work-related injuries or other protected activity.” Id.
Ms. Fortney shared her findings with Ms. Klamm and
Mr. Kellison. Id. (Fortney Decl. ¶ 45); Doc. 65-29 at 11
(Kellison Decl. ¶ 57). But it’s unclear exactly when Ms.
Fortney finished investigating plaintiff ’s complaint
against Mr. McCracken. Defendant’s corporate representative testified that Ms. Fortney concluded her investigation before defendant decided to fire plaintiff.
Doc. 72-1 at 29 (Hentschel 30(b)(6) Dep. 116:5–16).
But, it’s undisputed that Ms. Fortney didn’t memorialize her investigation in a formal report until December
27, 2018—after defendant had fired plaintiff. See Doc.
65-166 (Fortney Memo). This memo made the following
findings:
•
Plaintiff received a 1% merit increase that
was lower than the year before because plaintiff didn’t meet defendant’s criteria for merit
increases—specifically, he “was not interested
in developing or using leadership skills or
teamwork[;]”
•
Plaintiff didn’t provide any evidence that the
1% raise was retaliation for his workplace
injury or his past complaints against Mr.
McCracken, nor did he specify any examples
of bullying or harassment by Mr. McCracken;
•
Mr. McCracken’s Outlook calendar logged several of plaintiff ’s medical appointments for
work-related injuries, and other employees
could see that information, unbeknownst to
Mr. McCracken;
App. 52
•
Plaintiff was unhappy with the replacement
ladder Mr. McCracken purchased for him because the safety rails “interfered with how
[plaintiff ] wanted to use the ladder for truck
inspections[;]” Mr. McCracken refused to modify the ladder; and the ladder “was sufficient,
appropriate and safer than the ladder [plaintiff ] was using previously[;]”
•
Mr. McCracken was unaware of expectations
for evenly distributing overtime to the truck
drivers under his supervision, including plaintiff.
Doc. 65-166 at 1-2.
Ms. Fortney then recommended (1) working with
all supervisory staff about proper privacy settings for
Outlook calendars and (2) working with Mr. Cloud and
Mr. McCracken to ensure equitable distribution of overtime. Id. at 3–4. Two more things are of note: (1) Ms.
Fortney omitted Mr. McCracken’s “tough shit” comment from her final memo; and (2) again, she finalized
the memo on December 27, 2018, after defendant had
terminated plaintiff ’s employment and after a board
hearing where plaintiff appealed his termination.
Turning back the clock just a bit to Ms. Klamm’s
investigation, the summary judgment facts establish
that Ms. Klamm began investigating the breakroom
incident after Ms. Fortney internally concluded that
plaintiff ’s harassment and retaliation complaint was
meritless. See Doc. 65-131 at 3 (Klamm Decl. ¶ 10) (declaring that Ms. Klamm began her investigation on
“November 26, 2018, after Ms. Fortney completed her
App. 53
investigation”). Ms. Klamm placed plaintiff on administrative leave during the investigation. Id. Ms. Klamm
interviewed plaintiff, Mr. McCracken, and Mr. Cloud.
The result of those interviews presents a now-familiar
story. On one hand, plaintiff contended that several
other employees sat in the breakroom after clocking in
and that Mr. Cloud told him he could do the same. On
the other hand, Mr. Cloud and Mr. McCracken contended that plaintiff should not do that and, instead,
he should go to work. Id. at 3–5 (Klamm Decl. ¶¶ 10–
23); see also Doc 65-169 (Klamm notes of meeting with
plaintiff ); Doc. 65-170 (Klamm notes of meeting with
Cloud); Doc. 65-171 (Klamm notes of meeting with
McCracken). Ms. Klamm also interviewed a witness of
the breakroom incident, Doug Nolkemper, who confirmed that plaintiff sat in the breakroom on the morning of November 13 after 7:00 a.m. Doc. 65-131 at 5-6
(Klamm Decl. ¶¶ 24–25). According to Ms. Klamm, Mr.
Nolkemper believed that plaintiff “was sitting in the
break room with a purpose[,]” that he “seemed to be
stirring up trouble[,]” and he “seemed to be picking a
fight” with Mr. McCracken. Id. at 6 (Klamm Decl. ¶ 27).
Plaintiff denies that Mr. Nolkemper was in the breakroom when he talked with Mr. McCracken. Doc. 65-1 at
14 (Pl.’s Dep. 47:20–24). Plaintiff testified that no one
was in the breakroom during that exchange with Mr.
McCracken. Id. (Pl.’s Dep. 47:25–48:4).
At the end of her investigation, Ms. Klamm talked
with Mr. Kellison to discuss next steps. Doc. 65-29 at
11 (Kellison Decl. ¶ 58). According to Mr. Kellison, the
two believed that plaintiff ’s contention that “Mr. Cloud
App. 54
told him he could sit in the break room and do nothing
for the first hour was not credible on its face” and this
contention “was contradicted by both Mr. Cloud and
Mr. McCracken[.]” Id. (Kellison Decl. ¶ 59). Mr. Kellison was “concerned about the message it would send
to the other employees and to the supervisors in the
department if [defendant] allowed [plaintiff ] to refuse
to work and to lie about the reasons he was not working.” Id. (Kellison Decl. ¶ 61). So, he emailed Ms. Fortney and Ms. Klamm and informed them that the “plan
right now is to proceed with termination.” Doc. 65-173
at 2. Mr. Kellison directed Ms. Klamm to draft a termination memo. Id.
Defendant Terminates Plaintiff ’s Employment
The next day, November 29, 2018, Ms. Klamm circulated her draft termination memo to Mr. Kellison,
Ms. Fortney, and Ms. Hentschel. See Doc. 72-24. The
stated reason for termination focused mainly on the
breakroom incident: defendant found plaintiff “was insubordinate by refusing to work, even after his supervisor asked him to start working” and concluded that
plaintiff “continue[d] to create an unnecessary distraction in the work environment with his insubordination
and conduct inconsistent with [defendant’s] values.”
Id. at 3–4. The memo vaguely discussed plaintiff using
“unverifiable third parties to unnecessarily convince
your supervisor to take or allow you to take specific actions, which upon questioning appear . . . unlikely to
have occurred.” Id. at 3. Also, it discussed generally
“[m]ultiple examples of disrupting the work place . . .
App. 55
including taunting co-workers with favoritism or threats,
arguing over electrical outlets, shutting off motion sensor lights, among many other irritants, which continue
to cause disruption, tension, and stress between you
and your co-workers.” Id. at 4.
A few days later, Ms. Fortney suggested some edits and cuts to the draft termination memo, mostly
about wording. See Doc. 72-25 (Fortney edits); Doc.
72-26 (Klamm incorporating those edits). But then,
Ms. Hentschel suggested a more substantial edit. Ms.
Hentschel suggested cutting the quoted language above
about “[m]ultiple other examples of disrupting the
workplace[.]” Doc. 72-27 at 4. Her comment reads:
Your call but I suggest that you keep this simple and focus on his being untruthful and insubordinate. Every single thing we put in here
will be subject to debate and the first is
enough to support separation. And, if we are
going to include it, we need to have given
him an opportunity to speak to each issue—
was the investigation that complete or is this
based on the reports of others and not a conversation with him? I also suggest that you
change words like insurdination [sic] to failed
to follow supervisory direction and concsioulsy
[sic] to intentionally, etc.
Id.
Ms. Klamm accepted Ms. Hentschel’s suggestion.
The final draft of the termination memo focused only
on the breakroom incident. See Doc. 72-29. That draft
was dated December 5, 2018. In relevant part, it read:
App. 56
You verified that during a meeting on Friday,
November 9, 2018, with Mr. Cloud and your
direct supervisor, Jeremy McCracken, you
threatened to start sitting in the breakroom
for the first hour of your work days without
working while you were being paid to work.
Both Mr. McCracken and Mr. Cloud told you
that this behavior would be unacceptable and
that doing so would be a problem. You repeatedly threatened to engage in this behavior out
of frustration because you perceived that
other employees sit in the breakroom without
working and Mr. Cloud repeatedly told you
this would be unacceptable. You also verified
that on November 13, 2018, you arrived at
the worksite at 6:20 am, ate breakfast, and
talked with a co-worker. You confirmed that
you remained in the breakroom well after the
start of your shift at 7:00 am and when Mr.
McCracken told you to get to work, you refused to work until 8 am. You stated that
upon asking you to go to work, you told Mr.
McCracken that Mr. Cloud told you it was
okay for you to not do any work until 8 am.
Only after Mr. McCracken called Mr. Cloud
and Mr. Cloud talked with you did you leave
the breakroom and begin work.
Id. at 3. The termination memo concluded that plaintiff had “engaged in conduct in violation of Johnson
County Human Re[s]ources Policies by refusing to
work, lying to your supervisor, and your continued insubordinate acts, all of which are unacceptable.” Id. at
4.
App. 57
The next day, December 6, 2018, Mr. Kellison, Ms.
Fortney, and Ms. Klamm met with plaintiff for a predisciplinary meeting. Doc. 72-1 at 34 (Hentschel 30(b)(6)
Dep. 146:11–25). According to defendant, the purpose
of this meeting was to present plaintiff with an “intent
to terminate” and allow plaintiff the chance to explain
the situation before Mr. Kellison made a final decision
about terminating his employment. Id. at 33 (Hentschel
30(b)(6) Dep. 142:13–143:14); see also Doc. 65-29 at 11
(Kellison Decl. ¶ 63). After meeting with plaintiff, Mr.
Kellison “decided to move forward with the termination since [plaintiff ] took no accountability for his behavior” and made allegations “that were even more farfetched than the one he had previously made.” Doc. 6529 at 12 (Kellison Decl. ¶ 64). The final termination notice, signed by Mr. Kellison, asserted that plaintiff, during the termination meeting, had “continued to state
that Mr. Cloud approved your sitting in the breakroom
and you did not take any ownership for your behavior.”
Doc. 72-30 at 3. Thus, defendant, through Mr. Kellison,
announced its intent to terminate plaintiff ’s employment. Id.
Plaintiff appealed this decision. See Doc. 65-176.
He contended that defendant terminated his employment because he was told to “s[i]t in the break room by
George Cloud who wanted me to talk to other people so
they would not think I was being rude and ignoring
them.” Id. at 3. He also alleged that during the predisciplinary meeting, Ms. Fortney said she didn’t agree
with the termination decision. Id. Ms. Fortney denied
App. 58
making that statement. Doc. 65-69 at 9 (Fortney Decl.
¶ 47).
The appeal board affirmed the termination decision. On December 18, 2018, Defendant terminated
plaintiff ’s employment. Doc. 72-1 at 6 (Hentschel
30(b)(6) Dep. 17:6–10).
II.
Legal Standard
Summary judgment is appropriate when the moving party demonstrates “no genuine dispute” about
“any material fact” and that the moving party is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). When the court applies this standard, it views
the evidence and draws reasonable inferences in the
light most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). But the court “need
not make unreasonable inferences or adopt one party’s
version of the facts if the record doesn’t support it.”
Harte v. Bd. of Comm’rs, 864 F.3d 1154, 1173 (10th Cir.
2017). An issue of “material fact is ‘genuine’ . . . if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party” on the issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And,
an issue of fact is “material” if it can “affect the outcome of the suit under the governing law[.]” Id.
The party moving for summary judgment bears
the initial burden of showing “the basis for its motion[.]” Celotex Corp., 477 U.S. at 323. A summary judgment movant can satisfy this burden by demonstrating
App. 59
“that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325. If the moving
party satisfies this initial burden, the non-moving
party “must set forth specific facts showing that there
is a genuine issue for trial.” Anderson, 477 U.S. at 250
(quotation cleaned up). To satisfy this requirement, the
nonmoving party must “go beyond the pleadings and
by [his] own affidavits, or by the depositions, answers
to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.” Celotex Corp., 477 U.S. at 324 (quotation cleaned
up). When deciding whether the parties have shouldered their summary judgment burdens, the court’s
“function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson, 477 U.S.
at 249.
Summary judgment is not a “disfavored procedural shortcut[.]” Celotex Corp., 477 U.S. at 327. Instead, summary judgment is an important procedure
“designed ‘to secure the just, speedy, and inexpensive
determination of every action.’ ” Id. (quoting Fed. R.
Civ. P. 1 (further citation omitted)).
III. Analysis
Plaintiff asserts four claims: (1) ADA discrimination, (2) ADA retaliation, (3) FMLA retaliation, and (4)
retaliatory discharge under Kansas common law.6 The
6
The court exercises supplemental jurisdiction over plaintiff ’s Kansas common law claim. See 28 U.S.C. § 1367. The court
App. 60
familiar McDonnell Douglas burden-shifting framework for Title VII claims applies to all four claims. See
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.
1997) (applying framework to ADA disability discrimination claim); Doebele v. Sprint/United Mgmt. Co., 342
F.3d 1117, 1135 (10th Cir. 2003) (applying framework
to ADA and FMLA retaliation claims); Hysten v. Burlington N. Santa Fe Ry. Co., 530 F.3d 1260, 1268 (10th
Cir. 2008) (“Kansas applies the familiar McDonnell
Douglas burden-shifting framework for analyzing retaliatory discharge claims.” (citations omitted)).
Under that familiar framework, plaintiff first
must present a prima facie case of discrimination or
retaliation. Then, the burden of production shifts to the
employer “to offer a legitimate nondiscriminatory [and
nonretaliatory] reason for its employment decision.”
Morgan, 108 F.3d at 1323. If the employer offers such
a reason, “the burden then reverts to the plaintiff to
show that there is a genuine dispute of material fact
. . . whether the employer’s proffered reason for the
challenged action is pretextual—i.e., unworthy of belief.” Id. (quotation cleaned up).
As plaintiff acknowledges, his four claims are
interrelated because his original workplace injury
has original subject matter jurisdiction under 28 U.S.C. § 1331
because plaintiff asserts ADA and FMLA claims against defendant, which are claims “arising under the . . . laws . . . of the United
States.” 28 U.S.C. § 1331. And, the court concludes, plaintiffs’
Kansas common law claim is “so related” to the ADA and FMLA
claims that it forms “part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
App. 61
caused his permanent disability and resulting ADA accommodations. And that injury, along with his subsequent workplace injuries, resulted in a “serious health
condition,” entitling him to frequent FMLA leave,
more ADA accommodations, and workers’ compensation claims protected by Kansas law. So, because all his
claims essentially rely on the same theories and body
of evidence, plaintiff argues the court must analyze his
claims together. The court agrees, but only to an extent.
The prima facie case for each claim differs a bit. So, the
court analyzes each claim’s prima facie case individually, below. But, because the court concludes (or, in one
instance, assumes) that plaintiff has met his prima facie burden, the court streamlines the non-discriminatory/non-retaliatory reason and pretext analysis for all
four claims. In other words, after analyzing the prima
facie case for each legal theory individually, the court
follows plaintiff ’s approach and applies the rest of its
analysis to all four claims. See, e.g., Doebele, 342 F.3d
at 1135–39 (analyzing pretext stage for ADA and
FMLA retaliation claims together).
A. Prima Facie Cases
The court concludes (but in one instance, assumes)
that plaintiff has met his light burden of establishing
a prima facie case for each of his four claims. The court
briefly addresses each one, in turn.
App. 62
1.
ADA Discrimination
Under the ADA, employers can’t fire an employee
“on the basis of disability[.]” 42 U.S.C. § 12112(a). To
establish a prima facie case for ADA discrimination,
plaintiff must show: “(1) that he is disabled within the
meaning of the ADA; (2) that he is qualified for the job
held or desired; and (3) that he was discriminated
against because of his disability.” Lincoln v. BNSF Ry.
Co., 900 F.3d 1166, 1192 (10th Cir. 2018) (quotation
cleaned up). Defendant doesn’t challenge the first two
elements. And plaintiff has shouldered his prima facie
burden on the third element.7
Plaintiff advances several different means for satisfying the third element. But the court need only consider one. When viewed in the light most favorable to
plaintiff, the summary judgment facts establish that in
late September 2018, plaintiff asked Mr. McCracken to
replace a ladder that was missing. At that time, plaintiff was working under certain lifting restrictions
7
Plaintiff originally asserted ADA discrimination claims
based on other actions occurring before defendant terminated his
employment. Defendant moved for summary judgment against
those claims, and plaintiff has not responded to them. Because
plaintiff failed to address his non-termination-based ADA claims
in his response, the court considers those claims abandoned. See
Hinsdale v. City of Liberal, Kan., 19 F. App’x 749, 768 (10th Cir.
2001) (affirming district court’s summary judgment dismissal of
plaintiff ’s claim because plaintiff had “abandoned [the] claim by
failing to address it in his response to defendants’ motion for summary judgment”); Loudon v. K.C. Rehab. Hosp., Inc., 339 F. Supp.
3d 1231, 1242 (D. Kan. 2018) (holding that plaintiff had abandoned claim by not responding to defendant’s summary judgment
arguments against the claim).
App. 63
because of his disability. The missing ladder conformed to these lifting restrictions. So, a reasonable
jury could find that plaintiff ’s request to replace the
ladder sought a reasonable accommodation for his disability under the ADA. Then, about six weeks after the
request, plaintiff received his negative performance
review and a 1% raise from Mr. McCracken and Mr.
Cloud, which triggered the breakroom incident, and ultimately led defendant to terminate plaintiff’s employment. That cascading series of events suffices to
establish a genuine issue whether defendant fired
plaintiff because of his disability. See Butler v. City of
Prairie Vill., Kan., 172 F.3d 736, 749 (10th Cir. 1999)
(concluding that temporal proximity between accommodation request and declining work evaluations that
led defendants to eliminate plaintiff ’s job “contributes
to an inference that Plaintiff ’s position was eliminated
because of his disability”).
Defendant disputes that plaintiff ’s request for a
new ladder sufficed as a request for a reasonable accommodation under the ADA. In defendant’s view, plaintiff wanted to use a ladder that didn’t support his
weight. Thus, defendant contends, plaintiff didn’t request a new accommodation for his disability—he asked
to use an unsafe ladder. And so, defendant argues,
nothing about the ladder episode raises an inference
of disability discrimination. To be sure, the summary
judgment record is a bit fuzzy about plaintiff ’s request
for a ladder. But, construing all inferences in plaintiff ’s
favor, a reasonable juror could conclude that plaintiff ’s
ladder request generally sought to replace the missing
App. 64
ladder that complied with his lifting restrictions and
held his weight. After all, a request for a reasonable
accommodation need not “invoke the magic words ‘reasonable accommodation[.]’ ” Foster v. Mountain Coal
Co., LLC, 830 F.3d 1178, 1188 (10th Cir. 2016). Instead,
it merely must alert the employer “that the employee
wants assistance for his or her disability.” Id. Plaintiff’s request met this standard. Indeed, the record
presents a genuine issue whether defendant knew
plaintiff had requested a replacement ladder that met
his weight and lifting restrictions. At the end of the
ladder episode, Mr. McCracken himself wrote to plaintiff and advised that he would work to “find a ladder
that me[t] [plaintiff ’s] weight requirements and lifting
restrictions.” Doc. 65-147 at 2. Thus, the summary
judgment facts present a triable issue whether plaintiff requested a reasonable accommodation under the
ADA. And because defendant terminated plaintiff ’s
employment six weeks after the request, there’s a triable issue whether plaintiff can satisfy his prima facie
burden for his ADA discrimination claim. See Butler,
172 F.3d at 749 (concluding that temporal proximity
between accommodation request and declining work
evaluations that led defendants to eliminate plaintiff ’s
job “contributes to an inference that Plaintiff ’s position was eliminated because of his disability”).
2.
ADA Retaliation
The ADA prohibits employers from retaliating
against employees who engage in an activity protected
by that act. See 42 U.S.C. § 12203(a)–(b). To make a
App. 65
prima facie case of ADA retaliation, plaintiff must
show that “(1) he engaged in a protected activity; (2) he
was subjected to an adverse employment action subsequent to or contemporaneous with the protected activity; and (3) there was a causal connection between the
protected activity and the adverse employment action.” Foster, 830 F.3d at 1187 (quotation cleaned up).
Defendant concedes the second element. And despite defendant’s arguments, the court concludes
plaintiff has established a triable issue on the first and
third elements of a prima facie ADA retaliation claim,
for the same reasons he established a genuine issue on
a prima facie ADA discrimination claim. First, plaintiff
engaged in activity protected by the ADA: he requested
a reasonable accommodation, as discussed above. Id. at
1188 (recognizing “that a request for accommodation
can constitute protected activity supporting a retaliation claim”). Defendant’s arguments challenging this
conclusion, also discussed above, are unpersuasive. Second, plaintiff has established a triable issue whether a
causal connection exists between the protected activity
and the adverse employment action. The events triggering his termination occurred about six weeks after
his reasonable accommodation request. And our Circuit has noted that “a one and one-half month period
between protected activity and adverse action may,
by itself, establish causation.” Id. at 1191 (quotation
cleaned up).
App. 66
3.
FMLA Retaliation
Plaintiff ’s prima facie case for his FMLA retaliation claim is even more straightforward. Employers
can’t retaliate against employees for taking leave under the FMLA. See 29 U.S.C. § 2615(a)(1)–(2). So, an
FMLA retaliation plaintiff must show: “(1) [ ]he engaged in a protected activity; (2) [defendant] took an
action that a reasonable employee would have found
materially adverse; and (3) there exists a causal connection between the protected activity and the adverse
action.” Campbell v. Gambro Healthcare, Inc., 478 F.3d
1282, 1287 (10th Cir. 2007) (internal quotations omitted). Here, defendant challenges the third element. But
the court isn’t convinced. Plaintiff has come forward
with a triable issue about his prima facie FMLA retaliation claim.
First, plaintiff took FMLA leave on the two days
before Mr. McCracken and Mr. Cloud gave him a negative performance review and a low raise. Second,
defendant terminated plaintiff ’s employment a few
weeks later. And third, the temporal proximity between plaintiff ’s last FMLA leave and the termination
of his employment—about a month—suffices on its
own to establish causation. See Foster, 830 F.3d at 1191
(noting that “a one and one-half month period between
protected activity and adverse action may, by itself, establish causation” (quotation cleaned up)). Thus, plaintiff has established a genuine issue whether a prima
facie case of FMLA retaliation exists. See Campbell,
478 F.3d at 1287–88 (explaining that a plaintiff
states a claim for retaliation where he “successfully
App. 67
took FMLA leave, was restored to [his] prior employment status, and was adversely affected by an employment action based on incidents post-dating [his] return
to work”).
4. Retaliatory Discharge
Under Kansas Common Law
Finally, Kansas law prohibits employers from firing employees because they have filed a workers’ compensation claim or have sustained an injury allowing
them to file such a claim. See Sanjuan v. IBP, Inc., 275
F.3d 1290, 1294 (10th Cir. 2002). A plaintiff makes a
prima facie showing of retaliatory discharge under
Kansas law by showing: “(1) that he filed a claim for
workers compensation benefits or sustained an injury
for which he might assert a future claim for such benefits; (2) that the employer had knowledge of the compensation claim or the fact that he sustained a workrelated injury for which the plaintiff might file a future
claim for benefits; (3) that the employer terminated the
plaintiff ’s employment; and (4) that a causal connection existed between the protected activity or injury,
and the termination.” Id. Defendant challenges just
the final requirement.
The court is skeptical that plaintiff has established a triable issue on his prima facie case for retaliatory discharge under Kansas law. Plaintiff ’s central
theory for this claim is vague and, frankly, conspiratorial in content. He asserts that defendant hatched a
plan to fire him as early as 2014. For support, he relies
App. 68
on an email Ms. Hentschel sent to Mr. Kellison and Ms.
Fortney during that year, when the parties still were
working to settle plaintiff ’s workers’ compensation
claim from his original 2006 workplace injury that required several surgeries. See Doc. 65-70. Plaintiff asserts that this email is a smoking gun documenting
defendant’s “plans” to terminate plaintiff ’s employment when it settled his workers’ compensation claim.
See id.
But plaintiff ’s argument simply is unfaithful to
the summary judgment record on this point. Ms.
Hentschel did not write, as plaintiff ’s papers assert,
that plaintiff ’s request for court-ordered medical treatment “could put a ‘kink’ in the ‘plans’ to have Plaintiff
resign.” Doc. 72 at 142 (Pl.’s Statement of Facts ¶ 589)
(citing Doc. 72-40 (Hentschel Email)). As a matter of
actual fact, Ms. Hentschel wrote the following:
I just participated in a conference call with
our external work comp counsel with regard
to [plaintiff ]. Since we have received permanent restrictions, we are ready to move forward with an ADA placement process. We will
work with him for 60 days to identify a suitable placement within the organization. If one
cannot be found, we will evaluate options at
that time. Since we will be simultaneously be
[sic] working to settle the work comp issues to
include employment, I cannot tell you what
will happen after the 60 days.
One thing that could put a kink in our plans
is that he has now requested treatment on his
back. This has been court ordered so we have
App. 69
to provide. If that results in some kind of work
restriction, we may have to delay the ADA
process.
Doc. 72-40. Putting it bluntly, that email doesn’t say
what plaintiff says it does.
Even drawing every inference in plaintiff ’s favor,
no reasonable juror could find that Ms. Hentschel’s
email is a smoking gun where defendant admitted that
plaintiff ’s workers’ compensation claim would put a
kink in its plans to fire plaintiff. In an extended back
and forth with plaintiff ’s counsel at her deposition, Ms.
Hentschel explained what her email meant:
Q. How could [plaintiff ’s requested treatment] put a kink in your plans?
A. Because the 60 days, if he has different
restrictions coming out of that, we were starting the ADA placement process based on what
we knew at the time. If additional information
came up with regard to restrictions, then we
would have had to take those into account as
well.
Doc. 72-37 at 10 (Henstchel Dep. 134:6–15).
With that dissonance resolved in favor of what the
summary judgment record actually says, plaintiff ’s
workers’ compensation claim skates on incredibly thin
ice. Based on the evidence plaintiff has provided, no
reasonable juror could believe his theory that defendant hatched a multi-year plan in 2014 to terminate his
App. 70
employment four years later in retaliation for his
workers’ compensation claim.8
Plaintiff ’s alternative theory—that defendant retaliated against him because of a different workplace
injury where plaintiff was thrown backwards from a
chair—fares only slightly better. It’s more specific, but
it suffers from a significant causation flaw. That injury,
which plaintiff sustained in June 2018, occurred six
months before defendant terminated plaintiff ’s employment in December 2018. And, under our Circuit’s
precedent, a more than three-month period between a
workplace injury and an adverse employment action
can’t suffice on its own to establish a causal connection
8
Plaintiff also raises the settlement negotiations of plaintiff ’s workers’ compensation claim as support for his multi-year
plot theory. In her deposition, Ms. Hentschel acknowledged that
separation of plaintiff ’s employment was on the table during settlement negotiations for plaintiff ’s workers’ compensation claim.
Doc. 72-37 at 9-10 (Henstchel Dep. 132:21–133:4). Defendant argues that fact would be inadmissible at trial. See Fed. R. Evid.
408 (providing that evidence of an offer during settlement negotiations or “conduct or a statement made during compromise
negotiations about the claim” is inadmissible “either to prove or
disprove the validity or amount of a disputed claim or to impeach
by a prior inconsistent statement or contradiction”). But Rule 408
allows the court to admit statements or offers made during negotiations settlements to show “a witness’s bias or prejudice[.]” Fed.
R. Evid. 408(b). Though plaintiff didn’t make this argument, his
multi-year plot theory arguably falls within Rule 408’s exception.
But the court need not resolve this issue because no reasonable
juror could believe plaintiff’s theory based on the actual content of the summary judgment record. And, as explained more
below, the court assumes plaintiff has established a triable issue
whether a prima facie retaliatory discharge claim exists. So, the
court’s choice not to resolve this issue is immaterial.
App. 71
between the two. Foster, 830 F.3d at 1191 (citing Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th
Cir. 1999)).
Plaintiff identifies just one other meaningful fact
in his attempt to meet his prima facie burden. He cites
Mr. McCracken’s deposition, where Mr. McCracken testified that, before he became plaintiff ’s supervisor, he
believed plaintiff created discord in the workplace by
talking about “his lawyers and how he had used them
against the county and that he would use them against
other people[.]” Doc. 72-4 at 4 (McCracken Dep. 33:24–
34:1). Plaintiff also highlights comments from Mr. Kellison, who testified that he felt threatened by plaintiff ’s comments in 2015 that plaintiff was “going to put
[Mr. Kellison] under oath” at a workers’ compensation
hearing. Doc. 72-43 at 11 (Kellison Dep. 117:18–118:17).
The court is skeptical that any reasonable juror could
find either testimony to establish an inference of retaliation for plaintiff ’s workers’ compensation retaliation
claim. But, drawing all inferences in plaintiff ’s favor,
the court grants plaintiff the benefit of the doubt. So,
the court assumes that plaintiff has established a triable issue about his prima facie claim for retaliatory
discharge. It is a generous assumption.
B. Legitimate, Non-Retaliatory/Non-Discriminatory Reason
With the conclusion (or assumption) that plaintiff could establish his prima facie cases, the burden
shifts to defendant. It must articulate a legitimate,
App. 72
non-retaliatory, non-discriminatory reason for terminating plaintiff ’s employment. At this second step of
the McDonnell Douglas framework, defendant doesn’t
“‘need to litigate the merits of the reasoning, nor does
it need to prove that the reason relied upon was bona
fide, nor does it need to prove that the reasoning was
applied in a nondiscriminatory fashion.’ ” Frappied v.
Affinity Gaming Black Hawk, LLC, 966 F.3d 1038,
1058 (10th Cir. 2020) (quoting EEOC v. Flasher Co.,
986 F.2d 1312, 1316 (10th Cir. 1992)). “This stage of the
analysis only requires the defendant to articulate a
reason for the [termination] that is not, on its face, prohibited and that is reasonably specific and clear.” Id.
(quotation cleaned up).
Defendant easily carries that burden here. Defendant terminated plaintiff ’s employment because of
the breakroom incident where plaintiff claimed he had
permission to sit in the breakroom after clocking in
and not work for an hour. In its termination notice
given to plaintiff, defendant articulated that plaintiff
was “insubordinate through [his] refusal to work” and
was “dishonest to [his] supervisor[,]” which defendant
deemed “unacceptable.” Doc. 72-30 at 3. That stated
reason suffices at this second step of the analysis.9 So,
the court moves on to pretext.
9
Plaintiff objects to defendant recounting the parties’ multiyear employment relationship in its motion as context for its decision to terminate plaintiff ’s employment. But plaintiff ’s argument more appropriately goes to pretext. From the moment it
terminated plaintiff ’s employment, defendant always has asserted the breakroom incident as the reason for its decision. That
App. 73
C. Pretext
The burden shifts again to plaintiff, who must present a genuine issue of material fact whether defendant’s asserted reason for terminating his employment
was pretextual. To meet this burden, plaintiff must
provide evidence that “the employer’s explanation was
so weak, implausible, inconsistent or incoherent that a
reasonable factfinder could conclude that it was not
an honestly held belief but rather was subterfuge for
discrimination” or retaliation. Young v. Dillon Cos.,
Inc., 468 F.3d 1243, 1250 (10th Cir. 2006). To analyze
whether a reasonable juror could find pretext under
this standard, the court doesn’t ask “whether the employer’s reasons were wise, fair or correct[.]” Riggs v.
AirTran Airways, Inc., 497 F.3d 1108, 1118 (10th Cir.
2007). Instead, the court asks “whether the employer
honestly believed its reasons and acted in good faith
upon them.” Id. at 1119.
The court thus considers “the facts as they appeared to the person making the decision,” and doesn’t
“second-guess the employer’s decision even if it seems
in hindsight that the action taken constituted poor
business judgment.” Id. “The reason for this rule is
plain: [the court’s] role is to prevent intentional discriminatory [employment] practices, not to act as a ‘super
personnel department,’ second guessing employers’
stated reason meets defendant’s relatively light burden at this
stage. See Frappied, 966 F.3d at 1058 (“This stage of the analysis
only requires the defendant to articulate a reason for the discipline that is not, on its face, prohibited and that is reasonably
specific and clear.” (quotation cleaned up)).
App. 74
honestly held (even if erroneous) business judgments.”
Young, 468 F.3d at 1250; see also Rivera v. City & Cnty.
of Denver, 365 F.3d 912, 925 (10th Cir. 2004) (“ ‘An articulated motivating reason is not converted into pretext merely because, with the benefit of hindsight, it
turned out to be poor business judgment.’ ” (quoting
McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129
(10th Cir. 1998))).
Plaintiff asserts five arguments to establish pretext. The court considers each one, below. Analyzing
the evidence in the light most favorable to plaintiff and
drawing all inferences in his favor, the court concludes
that his pretext arguments—either individually or
taken as a group—fail to create a genuine, triable
dispute of material fact about pretext. The court addresses each argument, below.
1.
Changing Reasons for Termination
To begin, plaintiff argues that defendant changed
the reasons for terminating his employment before it
settled on the proffered reason, i.e., the breakroom incident. As support, plaintiff highlights the termination
notice’s drafting process between Ms. Klamm, Ms.
Fortney, and Ms. Hentschel. But it’s undisputed that
the termination notice always revolved around the
breakroom incident. Compare Doc. 72-24 (First Draft
of Termination Notice), with Doc. 72-30 (Final Termination Notice). At the beginning of the drafting process,
Ms. Klamm listed several other general and vague
reasons justifying plaintiff ’s firing. The draft memo
App. 75
vaguely referenced plaintiff using “unverifiable third
parties to unnecessarily convince [his] supervisor to
take or allow [him] to take specific actions, which upon
questioning appear . . . unlikely to have occurred.” Doc.
72-24 at 3. The draft memo also discussed generally
“[m]ultiple examples of [plaintiff ] disrupting the work
place . . . including taunting co-workers with favoritism or threats, arguing over electrical outlets, shutting
off motion sensor lights, among many other irritants,
which continue to cause disruption, tension, and
stress between you and your co-workers.” Id. at 4. Ms.
Hentschel suggested cutting these reasons from the
termination notice. In a comment on the draft, Ms.
Hentschel suggested keeping the termination notice
“simple and focus[ing] on [plaintiff ] being untruthful
and insubordinate.” Doc. 72-27 at 4. In her words, every
“single thing we put in here will be subject to debate
and the first [the breakroom incident] is enough to
support separation.” Id. Ms. Klamm followed Ms.
Hentschel’s suggestion and focused the final draft of
the termination notice on the breakroom incident.
Invoking our Circuit’s decision in Fassbender v.
Correct Care Solutions, LLC, plaintiff argues that a
reasonable juror could infer from this drafting process
that defendant “abandoned its original explanations in
favor of one that’s harder to assail because it knew that
none of the explanations were true.” 890 F.3d 875, 888
(10th Cir. 2018). While plaintiff ’s right that shifting explanations for termination can suggest pretext, plaintiff ’s quoted language from Fassbender doesn’t apply
here. Defendant never “abandoned” its central reason
App. 76
for terminating plaintiff ’s employment, like the Fassbender defendant did. In that case, when defendant
fired plaintiff, it offered several reasons for doing so.
Then, when responding to plaintiff ’s EEOC charges,
defendant changed its reasons for firing plaintiff. And
yet again, on summary judgment, defendant abandoned all those reasons and retreated to the alternative reason it originally had offered. See Fassbender,
890 F.3d at 887. The Circuit concluded it was “significant that (1) [defendant] failed to consistently identify
which of these acts it terminated [plaintiff ] for; and (2)
[defendant] eventually abandoned all of these various
violations . . . in favor of only a single violation.” Id. at
888. But here, defendant never has abandoned the central reason for terminating plaintiff ’s employment—
not during the drafting process, and not since.
Also, and accepting that defendant did abandon
some other reasons for terminating plaintiff’s employment during the drafting of the termination notice,
that decision came before defendant fired plaintiff. And
that’s significant. Our Circuit repeatedly has emphasized that a changed reason for termination “support[s]
the inference of pretext when it occurs after significant
legal proceedings have occurred.” Jaramillo v. Colo.
Jud. Dep’t, 427 F.3d 1303, 1311 (10th Cir. 2005) (emphasis added) (emphasizing “the timing of the change
in position” as a significant factor when evaluating
whether changed reasons suggest pretext); see also
Frappied v. Affinity Gaming Black Hawk, LLC, 966
F.3d 1038, 1059 (10th Cir. 2020) (“Post-hoc justifications for termination constitute evidence of pretext.”
App. 77
(emphasis added)); Matthews v. Euronet Worldwide,
Inc., 271 F. App’x 770, 773 (10th Cir. 2008) (“We have
indicated that a post-hoc justification given at the time
of trial, which differs from the reasons given at the
time of termination and is unsupported by the evidence, could lead a reasonable jury to infer that the
reason asserted at trial is pretextual.” (emphasis
added)).
This explicit focus on the timing of the changed
reasons makes perfectly good sense. After all, our Circuit recently stressed that “pretext cannot be established by the mere fact that the employer has offered
different explanations for its decision.” Litzsinger v.
Adams Cnty. Coroner’s Off., 25 F.4th 1280, 1291 (10th
Cir. 2022) (quotation cleaned up). “Rather, inconsistency
evidence is only helpful to a plaintiff if the employer
has changed its explanation under circumstances that
suggest dishonesty or bad faith.” Id. (quotation cleaned
up); see also Mueggenborg v. Nortek Air Sols., LLC, No.
20-6147, 2021 WL 4807176, at *8 (10th Cir. Oct. 15,
2021) (assuming employer provided an “inconsistent
explanation” for firing plaintiff but concluding that the
circumstances still did “not suggest [the employer]
changed its explanation under circumstances that suggest dishonesty or bad faith” because plaintiff ’s firing
was still justified even without the “inconsistent explanation”). Here, defendant’s decision to jettison additional
reasons for termination before defendant terminated
plaintiff ’s employment—while consistently sticking
with the central reason that prompted the firing decision in the first place—doesn’t suggest dishonesty or
App. 78
bad faith. No reasonable juror could conclude otherwise.
This isn’t to say that evidence gleaned from an employer’s decision-making process before it terminated
a plaintiff ’s employment never can serve as evidence
of pretext. But it can’t here. Contrary to plaintiff ’s arguments, the summary judgment facts establish that
this isn’t a case where defendant decided to terminate
plaintiff ’s employment and then cycled through several reasons before settling on the one that’s “harder
to assail[.]” Fassbender, 890 F.3d at 888. To the contrary, from the first draft of the termination notice to
the summary judgment motion currently before the
court, defendant’s central reason for firing plaintiff has
remained the same.
The court recognizes that some examples defendant referenced in its first draft of the termination notice found their way into the lengthy factual history of
defendant’s motion for summary judgment. But that
choice by defendant doesn’t suggest pretext. Defendant
explains that it included this lengthy history of plaintiff ’s entire employment to (1) contextualize the parties’ employment relationship to understand fully the
decisionmakers’ point of view in November 2018; and
(2) “illustrate that Plaintiff ’s behavior warranted termination numerous times before [defendant] terminated his employment.” Doc. 77 at 1. Rejecting an
argument like plaintiff ’s here, our Circuit has approved of the choice defendant made here. Litzsinger,
25 F.4th at 1292 (rejecting plaintiff ’s pretext argument
based on defendant offering several additional reasons
App. 79
for termination in its motion for summary judgment
because “[r]eading the motion as a whole . . . [t]he motion does not say that [plaintiff ] was terminated for
the additional reasons, only that [plaintiff ] could have
been justifiably terminated for any number of reasons”). So, the court concludes that no reasonable juror
could find or infer pretext from defendant’s choice to
include this history in its motion for summary judgment.
2.
Reason for Termination—Whether Plaintiff
Had Permission to Sit in the Breakroom
Plaintiff next focuses on the central reason defendant provided for terminating his employment—
that he sat in the breakroom for an hour without working. In his view, that reason is disputed. Plaintiff maintained then, and maintains now, that Mr. Cloud gave
him permission to sit in the breakroom for an hour
without working. See, e.g., Doc. 65-1 at 11 (Pl.’s Dep.
34:16–18). So, from his vantage point, he didn’t do anything wrong, and defendant shouldn’t have fired him.
Defendant understood plaintiff ’s position when it
decided to fire him. But, after investigating the breakroom incident and interviewing all relevant parties,
defendant (through Mr. Kellison) determined that
plaintiff ’s contention that “Mr. Cloud told him he could
sit in the break room and do nothing for the first hour
was not credible on its face” and “was contradicted by
both Mr. Cloud and Mr. McCracken[.]” Doc. 65-29 at 11
(Kellison Decl. ¶ 59). So, believing that plaintiff did not
App. 80
have, in fact, permission from Mr. Cloud to sit in the
breakroom for an hour without working, defendant terminated plaintiff ’s employment because of insubordination.
Plaintiff makes much of defendant’s concession
that there’s a dispute about “the ultimate incident that
led to [plaintiff ’s] termination” i.e., whether plaintiff
had permission from Mr. Cloud. Doc. 72-1 at 33
(Hentschel 30(b)(6) Dep. 141:19–142:7). But this concession doesn’t automatically guarantee plaintiff a
trial. Even accepting a genuine dispute whether plaintiff had permission to sit in the breakroom, that dispute isn’t a material one for the ultimate issue of
pretext. The relevant inquiry is whether the decisionmakers believed in good faith that plaintiff was
insubordinate by sitting in the breakroom without
working. See Riggs, 497 F.3d at 1119; Young, 468 F.3d
at 1250. So, even if plaintiff actually had received permission to sit in the breakroom, defendant—after investigating plaintiff ’s contention—believed he didn’t
have such permission. And, under well-established
principles for showing pretext, that’s the belief that
matters. Rivera, 365 F.3d at 925 (“Perhaps a reasonable factfinder could observe all the witnesses and believe Plaintiff’s version of the events. . . . [But], that
is not the issue.”); see also Swackhammer v. Sprint/
United Mgmt. Co., 493 F.3d 1160, 1170 (10th Cir. 2007)
(explaining that, when analyzing pretext, “it is not
what [a decisionmaker] should have known that matters, but whether he acted in good faith upon the beliefs he held”); Kendrick v. Penske Transp. Servs., Inc.,
App. 81
220 F.3d 1220, 1231 (10th Cir. 2000) (rejecting plaintiff ’s pretext argument about a “false justification for
termination” because even assuming that plaintiff
didn’t engage in misconduct, as he contended, “a challenge of pretext requires [the court] to look at the facts
as they appear to the person making the decision to
terminate plaintiff ” and plaintiff failed to create genuine dispute about defendant’s belief plaintiff had engaged in misconduct). In the end, the mere fact that
defendant didn’t believe plaintiff ’s side of the story
isn’t evidence of pretext. See Est. of Bassatt v. Sch. Dist.
No. 1 in the City & Cnty. of Denver, 775 F.3d 1233, 1240
(10th Cir. 2014) (explaining that an employer’s “decision to believe [one employee] over [another], when
there was no direct evidence either way, is not evidence
of pretext”).
Resisting this conclusion, plaintiff shifts gears. He
contends that his termination was objectively unreasonable because, after some back and forth with Mr.
McCracken, plaintiff eventually left to go to work
when Mr. Cloud told him to. And, plaintiff asserts, Mr.
Cloud’s description of the breakroom incident as a
“strike” in his deposition testimony and his notes of the
incident “makes it more likely that [Mr.] Cloud gave
Plaintiff permission” to sit in the breakroom. Doc. 72
at 187. Bringing it all together, plaintiff then asserts
that defendant disregarded plaintiff ’s objectively reasonable (or at worst, mistaken) belief that he had permission to sit in the breakroom because defendant saw
“an opportunity to finally accomplish the ‘plans’—first
App. 82
discussed 4 years earlier—to get rid of Plaintiff.” Id. at
188.
This argument proves far too much. And, yet
again, it focuses on the wrong inquiry. The relevant inquiry isn’t whether plaintiff had permission to sit in
the breakroom without working. The relevant inquiry
is whether defendant believed in good faith that he
didn’t have permission, and thus was insubordinate.
Est. of Bassatt, 775 F.3d at 1241. The record reflects
defendant held that belief in good faith. To undermine
that belief, plaintiff would need to adduce some evidence enabling a reasonable juror to conclude that defendant’s belief “was so implausible, incoherent, or
internally contradictory that [defendant] must have
made [its] decision on some other basis.” Rivera, 365
F.3d at 925. The summary judgment facts here establish plaintiff has failed to shoulder that burden. Instead, he’s merely re-offered his side of the story. This
pretext argument fails.
3.
Unfair Investigations
Somewhat related to the discussion above, plaintiff contends Ms. Fortney and Ms. Klamm conducted
unfair investigations of his harassment complaint and
the breakroom incident, respectively. “A factfinder can
reasonably infer pretext . . . from shortcomings in the
employer’s investigation” of the misconduct leading to
termination. Ibrahim v. All. for Sustainable Energy,
LLC, 994 F.3d 1193, 1199 (10th Cir. 2021). “For example, a factfinder can reasonably infer pretext from an
App. 83
employer’s failure to inquire into the reasons for an
employee’s behavior.” Id. at 1199-1200. It thus follows
that “an employer may ordinarily ‘defeat the inference’
of pretext stemming from an allegedly unfair investigation by ‘simply asking an employee for his version of
events.’ ” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1314
(10th Cir. 2017) (quoting EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 488 (10th Cir. 2006)).
This principle easily disposes of plaintiff ’s challenge to Ms. Klamm’s investigation of the breakroom
incident. Ms. Klamm interviewed plaintiff. She got his
side of the story. Under our Circuit’s precedent, that
fact alone defeats an inference of pretext based on an
allegedly flawed investigation. See Dewitt, 845 F.3d at
1314 (concluding that plaintiff ’s “unfair-investigation
argument is overcome by the simple fact that [the employer] asked [plaintiff] for her version of events”);
Est. of Bassatt, 775 F.3d at 1240 (rejecting plaintiff ’s
unfair investigation pretext argument because employer
heard plaintiff ’s response to a misconduct allegation
and believed the accusing employee’s accusation); cf.
Smothers v. Solvay Chems., Inc., 740 F.3d 530, 543
(10th Cir. 2014) (finding evidence of pretext where decisionmakers relied on “one-sided information” and accepted allegations of misconduct against plaintiff
without getting his side of the story, but noting that if
decisionmakers “had allowed [plaintiff ] to respond” to
the allegations before firing him, the court “could perhaps accept” that decisionmakers found the accuser’s
“version of events more credible”).
App. 84
Plaintiff ’s challenge to Ms. Fortney’s investigation
of his harassment complaint against Mr. McCracken
requires a bit more. Plaintiff lobs two main objections
at Ms. Fortney’s investigation. Primarily, he objects
that Ms. Fortney omitted Mr. McCracken’s “tough shit”
comment about the replacement ladder from her final
memorandum about the investigation, even though
she recorded that comment in her notes of her interview with plaintiff. Compare Doc. 65-154 at 3 (Fortney
notes), with Doc. 65-166 (Fortney Memo). Remember,
there’s a dispute about what that “tough shit” comment referenced. Plaintiff maintains the comment was
directed at his lifting restrictions. Doc. 65-1 at 80 (Pl.’s
Dep. 311:19–312:4). But defendant contends the comment responded to complaints by plaintiff and another
employee that the rolling ladder defendant had purchased was difficult to use. See Doc. 65-154 at 3 (Fortney notes). Ultimately, though, this dispute doesn’t
matter. Even accepting plaintiff ’s version of events as
the summary judgment fact, this comment falls in the
bucket of what our Circuit has called a “stray remark.”
Jones v. Unisys Corp., 54 F.3d 624, 632 (10th Cir. 1995).
A “stray remark by someone not in a decision-making
position does not establish intent to discriminate.” Id.;
see also Cone v. Longmont United Hosp. Ass’n, 14 F.3d
526, 531 (10th Cir. 1994) (“Isolated comments, unrelated to the challenged action, are insufficient to show
discriminatory animus in termination decisions.”). As
explained in more detail below, Mr. McCracken was not
involved in the termination decision. To be sure, his
report of the breakroom incident triggered the investigation resulting in termination. And Mr. McCracken
App. 85
provided his account of the breakroom incident during
that investigation. But to make his actions relevant to
the termination decision, “plaintiff must establish more
than mere ‘influence’ or ‘input’ in the decisionmaking
process.” BCI Coca-Cola, 450 F.3d 487. Instead, plaintiff must establish that the “biased subordinate’s discriminatory reports, recommendation, or other actions
caused” the termination. Id.; see also id. at 488 (qualifying that “an employer can avoid liability by conducting an independent investigation of the [biased
subordinate’s] allegations against an employee”). So,
because Mr. McCracken’s “tough shit” comment was
unrelated to the termination decision and thus—on its
own—can’t establish pretext, Ms. Fortney’s failure to
include the “tough shit” comment in her final report
doesn’t suggest pretext.
Plaintiff also cries foul at Ms. Fortney’s investigation because she reached two conclusions that are
favorable to plaintiff: (1) that Mr. McCracken’s calendar was publicly available and so other employees
could see plaintiff ’s medical appointments, and (2) Mr.
McCracken hadn’t established an equitable process for
distributing overtime amongst employees. See Doc. 65166 at 2-3. Notably, Ms. Fortney didn’t memorialize
these findings until after defendant had terminated
plaintiff ’s employment. So, plaintiff contends, Ms.
Fortney’s belated findings suggest pretext. Plaintiff
contends that Ms. Fortney withheld her findings so
that defendant could fire plaintiff. But these belated
findings were ancillary to plaintiff’s harassment
complaint. They don’t suggest that Mr. McCracken
App. 86
targeted, harassed, or bullied plaintiff because of his
workplace injury, as plaintiff has alleged. And most importantly, Ms. Fortney’s findings don’t create a genuine
issue whether defendant’s stated reason for terminating plaintiff ’s employment was “too weak, implausible,
inconsistent, incoherent, or contradictory to believe as
the legitimate reason for termination.” Litzsinger, 25
F.4th at 1293 (quotation cleaned up). In fact, her findings say nothing at all about defendant’s reason for terminating plaintiff ’s employment. No reasonable juror
could conclude that Ms. Fortney withheld these favorable findings to justify plaintiff ’s firing, so this pretext
argument fails as well.
4.
Disparaging Comments
Plaintiff next invokes a few disparaging comments
made by Mr. McCracken, Mr. Cloud, and Mr. Kellison
during plaintiff ’s employment. They are:
•
Mr. McCracken’s “tough shit” comment about
the ladder;
•
Mr. McCracken and Mr. Cloud’s negative comments about plaintiff ’s FMLA leave; and
•
Mr. Kellison’s comments from several years
earlier about plaintiff ’s transfer to a truck
driver position, and about plaintiff ’s workers’
compensation claim.
The court finds plaintiff ’s disparaging comments theory unpersuasive for three reasons.
App. 87
First, the court already has addressed why Mr.
McCracken’s “tough shit” comment doesn’t suggest pretext. The court need only reiterate that Mr. McCracken
was not involved in the decision to terminate plaintiff ’s employment. And, plaintiff hasn’t tied this comment to defendant’s termination decision in a way that
suggests pretext.
Second, Mr. McCracken and Mr. Cloud’s negative
FMLA comments are unavailing for much the same
reason. Plaintiff testified that Mr. McCracken used to
call him “half-timer” before he became plaintiff ’s supervisor. Doc. 65-1 at 35-36 (Pl.’s Dep. 131:7–133:8).
Plaintiff also testified that Mr. McCracken told him he
couldn’t take FMLA leave sometime before he was
fired. See, e.g., id. at 11 (Pl.’s Dep. 35:11–15) (“Q. So tell
me the conversation where [Mr. McCracken] said you
couldn’t get FMLA. A. I walked out, and I said, I told
him, I said, ‘I’m on FMLA. I need new paperwork for
the new year FMLA,’ and he said, ‘No, no FMLA.’ ”).10
And finally, plaintiff testified that Mr. McCracken and
Mr. Cloud both told plaintiff when he returned from
FMLA leave that they wanted him at work “all the
10
The record also reflects that when plaintiff requested FMLA
leave in early November 2018—shortly before he was fired—Mr.
McCracken emailed Ms. Fortney asking if plaintiff was approved
for this leave. See Doc. 65-149 at 2. Ms. Fortney responded that
he was, and she suggested that Mr. McCracken proactively send
plaintiff new FMLA paperwork by year’s end since plaintiff ’s
FMLA leave was “recurring[.]” Id. Mr. McCracken responded that
he had scheduled a meeting with plaintiff “to find out if he needs
new paperwork to continue it” and then, a follow-up meeting “to
finalize wherever we land.” Id.
App. 88
time.” Id. at 23 (Pl.’s Dep. 83:16–24). Plaintiff testified
that Mr. McCracken said this “almost every time”
plaintiff took FMLA leave, and Mr. Cloud said this “two
or three times[.]” Id. (Pl.’s Dep. 83:25–84:9).
Even accepting plaintiff’s testimony that both
Mr. McCracken and Mr. Cloud made these comments,
they’re still insufficient to show pretext. That’s because, as plaintiff concedes, Mr. McCracken and Mr.
Cloud did not make the decision to terminate plaintiff ’s employment. And contrary to plaintiff ’s argument, Mr. Cloud and Mr. McCracken were not so
involved in the termination decision that their comments or behavior are relevant to the pretext analysis.
Resisting this conclusion, plaintiff invokes the “cat’s
paw” or “rubber stamp” theory of subordinate bias liability. Under that theory, an employer is liable when “a
biased subordinate, who lacks decisionmaking power,
uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” BCI Coca-Cola, 450 F.3d at 484; see also Staub v.
Proctor Hosp., 562 U.S. 411, 415 n.1 (2011) (elaborating
on this theory).
But that theory can’t fit this case’s summary judgment facts. Despite plaintiff ’s rhetorical efforts, he has
no evidence to support his theory that Mr. McCracken
and Mr. Cloud pulled the strings when defendant decided to terminate plaintiff ’s employment. His argument that Mr. McCracken and Mr. Cloud triggered the
series of events leading to that decision won’t cut it either. A plaintiff invoking the subordinate bias theory
“must establish more than mere ‘influence’ or ‘input’ in
App. 89
the decisionmaking process.” BCI Coca-Cola, 450 F.3d
at 487.
Here, the summary judgment record confirms that
Mr. McCracken and Mr. Cloud merely reported the
breakroom incident and provided their side of the story
to Ms. Klamm when she investigated it. And, after also
hearing plaintiff ’s side of the story, Ms. Klamm and Mr.
Kellison made the decision to terminate plaintiff ’s employment on their own—without any involvement from
Mr. McCracken or Mr. Cloud. That fact alone defeats
any causal link between whatever FMLA bias Mr.
McCracken and Mr. Cloud may have had and defendant’s decision to fire plaintiff. See id. at 488 (explaining
that an employer’s “tak[ing] care not to rely exclusively
on the say-so of the biased subordinate,” and “simply
asking an employee for his version of events may defeat the inference that an employment decision was . . .
discriminatory” or retaliatory); see also Dewitt v. Sw.
Bell Tel. Co., 41 F. Supp. 3d 1012, 1019 (D. Kan. 2014)
(concluding that, because no evidence suggested that
the decisionmakers “heard, made or agreed” with any
of the subordinate’s general anti-FMLA comments,
such comments “fail[ed] to raise any inference of a pretextual termination decision”), aff ’d, 845 F.3d 1299
(10th Cir. 2017).
Last, Mr. Kellison’s comments—which are relevant because he was the ultimate decisionmaker—are
too attenuated from the termination decision to show
pretext. Plaintiff spotlights three comments by Mr.
Kellison: (1) a 2009 email where Mr. Kellison wrote he
was “not quite as optimistic” that transferring plaintiff
App. 90
to a truck driver position as a reasonable accommodation would “be less strenuous on whatever body part
[plaintiff ] keeps injuring[,]” Doc. 72-47 at 2; (2) Mr.
Kellison’s 2015 report that he felt threatened by plaintiff ’s comment that Mr. Kellison was “next” and that
he would “put [Mr. Kellison] under oath” at a workers’
compensation hearing, Doc. 72-43 at 11 (Kellison Dep.
117:18–118:3); Doc. 65-102 at 3 (Fortney HR Memorandum); and (3) Mr. Kellison’s agreement with plaintiff ’s
counsel at his deposition that plaintiff “could be delusional” and “paranoid[,]” Doc. 72-43 at 18 (Kellison
Dep. 163:11–16).
None of these comments create a genuine pretext
dispute, even accepting plaintiff ’s characterization of
these comments as disparaging. Our Circuit has held
that a supervisor’s disparaging comment directed at a
plaintiff more than a year before the termination decision didn’t suggest pretext because it was “too far attenuated from [plaintiff ’s] termination to be probative
of [defendant’s] motivation.” Bittel v. Pfizer, Inc., 307
F. App’x 132, 141 (10th Cir. 2009) (citing Antonio v.
Sygma Network, Inc., 458 F.3d 1177, 1184 (10th Cir.
2006) (holding that racial remark made by one person
involved in termination decision 10 months before
termination was too remote to support a finding of
pretext)). Mr. Kellison’s comments—ranging from nine
years to three years before the termination decision—
necessarily are too remote to suggest pretext. And Mr.
Kellison’s deposition testimony says nothing about
plaintiff ’s workplace injuries, his resulting disabilities,
App. 91
his FMLA leave, or his workers’ compensation claim.
So, that testimony can’t support pretext either.
In sum, no reasonable juror could conclude that
plaintiff ’s highlighted comments reveal a pretext for
discrimination or retaliation.
5. Failure to Discipline Plaintiff
Progressively and Disparate Treatment
Plaintiff ’s last pretext argument relies on two
other related theories. He first contends that defendant deviated from its disciplinary policy that defendant shouldn’t fire an employee unless “other forms of
discipline have not resolved the issue[,]” or there are
“multiple or repeated incidents of misconduct.” Doc.
72-34 at 5 (Def.’s Disciplinary Process Procedure).
While plaintiff ’s argument is generally faithful to two
components of defendant’s disciplinary policy, plaintiff
simultaneously ignores that defendant’s policy also includes wide discretion. Indeed, the policy expressly
contemplates that defendant “may terminate the employment relationship without using other levels of
discipline through the disciplinary process.” Id. at 2.
And when defendant does so, the policy provides several steps defendant “shall” take before terminating
the employment relationship. They include describing
the basis for the termination decision, informing the
employee of the intended action, and, importantly,
providing the employee the opportunity to explain the
reasons for his conduct and any reason defendant
shouldn’t impose the intended discipline. Id. at 5–6.
App. 92
Defendant did all those things. Mr. Kellison, Ms.
Klamm, and Ms. Fortney all met with plaintiff to discuss the breakroom incident one last time before terminating his employment. And when, in defendant’s
view, plaintiff didn’t take accountability for his actions
and even asserted that Mr. Cloud told plaintiff “he
[wa]s willing to lie to get [him] out of trouble[,]” defendant decided to proceed with termination. See Doc. 7243 at 18 (Kellison Dep. 162:13–163:8).
To be sure, and as it acknowledges, defendant
could’ve imposed other milder disciplinary measures.
See Doc. 72-43 at 7 (Kellison Dep. 37:11–16); Doc. 7237 at 6 (Hentschel Dep. 51:18–52:13). But “where progressive discipline is entirely discretionary, and the
employer did not ignore any established company policy in its choice of sanction, the failure to implement
progressive discipline is not evidence of pretext.” Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1291 (10th Cir.
2013) (quotation cleaned up) (affirming summary judgment for employer because of insufficient pretext evidence); see also Berry v. T-Mobile USA, Inc., 490 F.3d
1211, 1222 (10th Cir. 2007) (“[E]ven if [the employer]
fell short of [plaintiff ’s] expectation of progressive discipline, this fact adds little to the pretext analysis” because the “‘mere fact that an employer failed to follow
its own internal procedures does not necessarily suggest that . . . the substantive reasons given by the employer for its employment decision were pretextual.’ ”
(quoting Randle v. City of Aurora, 69 F.3d 441, 454
(10th Cir. 1995))).
App. 93
Next, and relatedly, plaintiff argues that defendant treated him differently than other employees who
also hung out in the breakroom before work but
weren’t fired. While true on its face, no reasonable juror could conclude that the other employees that plaintiff alludes to were similarly situated. Plaintiff doesn’t
identify another employee who decided to clock in and
sit in the breakroom for an hour without working, all
while claiming to his supervisor that he had permission to do so. That defendant fired plaintiff for this behavior—which it viewed as insubordination—without
firing other employees who also hung out in the breakroom after clocking in, is “unsurprising” and thus, not
evidence of pretext. See Litzsinger, 25 F.4th at 1290 (rejecting plaintiff ’s disparate treatment pretext argument because although defendant hadn’t fired any
other employee “for intermittent personal use of the
Internet,” it fired plaintiff for that reason because she
“was on probation” for “excessively us[ing] the Internet
for reasons unrelated to work”).
Whether analyzed in isolation or in the aggregate,
plaintiff ’s arguments don’t establish a genuine dispute
of material fact whether defendant’s stated reason for
terminating plaintiff ’s employment was a pretext for
discrimination or retaliation. This conclusion means
that no reasonable juror could find that defendant’s
termination of plaintiff ’s employment violated the
ADA, FMLA, or Kansas common law.
App. 94
IV. Conclusion
In an employment dispute, the court does “not ask
whether the employer’s reasons [for terminating plaintiff ’s employment] were wise, fair or correct;” it asks,
instead, “whether the employer honestly believed its
reasons and acted in good faith upon them.” Riggs, 497
F.3d at 1118–19. In short, the court isn’t a “‘super personnel department,’ second guessing employers’ honestly held (even if erroneous) business judgments.”
Young, 468 F.3d at 1250. Here, the summary judgment
facts present no genuine issue whether defendant’s
reasons for terminating plaintiff ’s employment were a
pretext for discrimination or retaliation. And, without
a triable issue of pretext, it’s not the court’s role to second guess defendant’s workplace decision.
Thus, for all the reasons explained by this Order,
the court grants defendant’s Motion for Summary
Judgment (Doc. 64). The court directs the Clerk to enter Judgment in defendant’s favor against plaintiff ’s
claim and then close the case.
IT IS THEREFORE ORDERED BY THE
COURT THAT defendant’s Motion for Summary
Judgment (Doc. 64) is granted.
IT IS SO ORDERED.
App. 95
RELEVANT STATUTES
29 U.S.C. § 2615. Prohibited acts
(a)
Interference with rights
(1)
Exercise of rights
It shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.
(2)
Discrimination
It shall be unlawful for any employer to discharge or
in any other manner discriminate against any individual for opposing any practice made unlawful by this
subchapter.
(b)
Interference with proceedings or inquiries
It shall be unlawful for any person to discharge or in
any other manner discriminate against any individual
because such individual –
(1) has filed any charge, or has instituted or caused
to be instituted any proceeding, under or related to this
subchapter;
(2) has given, or is about to give, any information in
connection with any inquiry or proceeding relating to
any right provided under this subchapter; or
(3) has testified, or is about to testify, in any inquiry
or proceeding relating to any right provided under this
subchapter.
App. 96
42 U.S.C. § 12112. Discrimination
(a)
General rule
No covered entity shall discriminate against a qualified individual on the basis of disability in regard to
job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment.
(b)
Construction
As used in subsection (a), the term “discriminate
against a qualified individual on the basis of disability”
includes –
(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the
opportunities or status of such applicant or employee
because of the disability of such applicant or employee;
(2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a
covered entity’s qualified applicant or employee with a
disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with
an employment or referral agency, labor union, an organization providing fringe benefits to an employee of
the covered entity, or an organization providing training and apprenticeship programs);
(3) utilizing standards, criteria, or methods of administration –
App. 97
(A) that have the effect of discrimination on the basis
of disability; or
(B) that perpetuate the discrimination of others who
are subject to common administrative control;
(4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known
disability of an individual with whom the qualified individual is known to have a relationship or association;
(5)
(A) not making reasonable accommodations to the
known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business of
such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need
of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;
(6) using qualification standards, employment tests
or other selection criteria that screen out or tend to
screen out an individual with a disability or a class of
individuals with disabilities unless the standard, test
or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and
App. 98
(7) failing to select and administer tests concerning
employment in the most effective manner to ensure
that, when such test is administered to a job applicant
or employee who has a disability that impairs sensory,
manual, or speaking skills, such test results accurately
reflect the skills, aptitude, or whatever other factor of
such applicant or employee that such test purports to
measure, rather than reflecting the impaired sensory,
manual, or speaking skills of such employee or applicant (except where such skills are the factors that the
test purports to measure).
(c)
Covered entities in foreign countries
(1)
In general
It shall not be unlawful under this section for a covered
entity to take any action that constitutes discrimination under this section with respect to an employee in
a workplace in a foreign country if compliance with
this section would cause such covered entity to violate
the law of the foreign country in which such workplace
is located.
(2)
Control of corporation
(A)
Presumption
If an employer controls a corporation whose place of
incorporation is a foreign country, any practice that
constitutes discrimination under this section and is engaged in by such corporation shall be presumed to be
engaged in by such employer.
App. 99
(B)
Exception
This section shall not apply with respect to the foreign
operations of an employer that is a foreign person not
controlled by an American employer.
(C)
Determination
For purposes of this paragraph, the determination of
whether an employer controls a corporation shall be
based on –
(i)
the interrelation of operations;
(ii)
the common management;
(iii)
the centralized control of labor relations; and
(iv) the common ownership or financial control, of the
employer and the corporation.
(d)
Medical examinations and inquiries
(1)
In general
The prohibition against discrimination as referred to
in subsection (a) shall include medical examinations
and inquiries.
(2)
Preemployment
(A)
Prohibited examination or inquiry
Except as provided in paragraph (3), a covered entity
shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant
is an individual with a disability or as to the nature or
severity of such disability.
App. 100
(B)
Acceptable inquiry
A covered entity may make preemployment inquiries
into the ability of an applicant to perform job-related
functions.
(3)
Employment entrance examination
A covered entity may require a medical examination
after an offer of employment has been made to a job
applicant and prior to the commencement of the employment duties of such applicant, and may condition
an offer of employment on the results of such examination, if –
(A) all entering employees are subjected to such an
examination regardless of disability;
(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files
and is treated as a confidential medical record, except
that –
(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of
the employee and necessary accommodations;
(ii) first aid and safety personnel may be informed,
when appropriate, if the disability might require emergency treatment; and
(iii) government officials investigating compliance
with this chapter shall be provided relevant information on request; and
App. 101
(C) the results of such examination are used only in
accordance with this subchapter.
(4)
Examination and inquiry
(A)
Prohibited examinations and inquiries
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to
whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be jobrelated and consistent with business necessity.
(B)
Acceptable examinations and inquiries
A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which
are part of an employee health program available to
employees at that work site. A covered entity may
make inquiries into the ability of an employee to perform job-related functions.
(C)
Requirement
Information obtained under subparagraph (B) regarding the medical condition or history of any employee
are subject to the requirements of subparagraphs (B)
and (C) of paragraph (3).
App. 102
42 U.S.C. § 12203. Prohibition against retaliation and coercion
(a)
Retaliation
No person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under this chapter.
(b)
Interference, coercion, or intimidation
It shall be unlawful to coerce, intimidate, threaten, or
interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or
enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.
(c)
Remedies and procedures
The remedies and procedures available under sections
12117, 12133, and 12188 of this title shall be available
to aggrieved persons for violations of subsections (a)
and (b), with respect to subchapter I, subchapter II and
subchapter III, respectively.
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.