December 17, 2018

Tenth Circuit: Independent Review Process Breaks Causal Chain Between Discrimination Allegations and Termination

The Tenth Circuit Court of Appeals issued its opinion in Thomas v. Berry Plastics Corp. on Friday, September 25, 2015.

Karry Thomas, who is African-American, worked for Berry Plastics Corp. in its Kansas facility from 2003 to 2010. Over the course of his employment, eight different Berry supervisors initiated at least 13 different disciplinary actions against him, ranging in severity from verbal coaching and written warning to suspensions and final warnings. In May 2009, Jason Morton became Thomas’s group leader. Morton had limited disciplinary authority and was unable to independently issue high levels of discipline such as suspensions or final warnings.

After conferring with his supervisor, Morton suspended Thomas in July 2010 for a print quality issue. Because of this suspension and a prior suspension issued by a different supervisor two months earlier, Watson, the printing manager who oversaw the entire Kansas operation, issued a Last Chance Agreement to Thomas, providing that he would be subject to disciplinary action for future attendance or rules violations. Morton was not involved in the decision to place Thomas on a Last Chance Agreement. A few weeks later, Morton gave Thomas a Final Warning, acting pursuant to direction from Watson and Human Resources, based on failure to pack product correctly on July 27. Thomas alleged that he did not fail to pack the product properly and stated he felt he was “getting discrimination because of race.” Morton investigated and determined the packing problem was not Thomas’s fault. He rescinded the Final Warning.

Later, Morton submitted a report to Watson that faulted Thomas for a print quality issue on September 10. Watson reviewed the incident and did not consult Morton before deciding to terminate Thomas. Before Human Resources could approve Watson’s termination decision, Morton issued a written warning to Thomas based on a different incident where he failed to complete paperwork. Shortly thereafter, Berry officially terminated Thomas’s employment.

Thomas appealed his termination through Berry’s Termination Review Process two days later, and two independent Berry managers affirmed Watson’s termination decision. Thomas thereafter filed suit for wrongful discharge, alleging he was terminated in retaliation for opposing race discrimination in violation of Title VII and 42 U.S.C. § 1981. Thomas invoked the cat’s paw theory of recovery, arguing it was Morton who possessed the retaliatory animus that infected Watson’s termination decision because of Thomas’s opposition to racial discrimination that he expressed at the Final Warning meeting with Morton. The district court ultimately granted summary judgment to Berry, and Thomas appealed.

On appeal, Thomas argued the district court erroneously granted summary judgment to Berry because he presented sufficient circumstantial evidence from which a reasonable jury could conclude the stated reason for his termination was pretextual. The Tenth Circuit disagreed, finding the district court correctly granted summary judgment for two reasons. The Tenth Circuit first applied the McDonnell Douglas framework to determine whether Thomas’s termination was pretextual and found Thomas failed to meet his burden to show pretext.

Thomas argued that a reasonable jury could infer Morton possessed retaliatory animus because of two pieces of circumstantial evidence. First, Thomas argued that Morton’s report regarding the September 10 print quality issue was dishonest because it failed to include that Thomas had properly inspected the equipment before going on break. However, Thomas did not argue that Berry would not hold a print technician responsible for errors that occurred while the print technician was on break, and the Tenth Circuit noted that record evidence suggested the opposite. The Tenth Circuit found that Morton’s omission on the September 10 report was inconsequential and did not reflect retaliatory animus. Next, Thomas argued that Morton’s report on the September 10 issue was inconsistent with his rescission of the July 27 incident. The Tenth Circuit again disagreed, noting that there is no inference of retaliatory animus in including more information in a rescission than in the original report, and also finding that both the rescission and the September 10 incident occurred after Thomas expressed concern about race discrimination, negating an inference that the timing of the September 10 report supported retaliation.

Although the Tenth Circuit found it could affirm on the lack of evidence alone, it also addressed causation, finding Thomas could not show that Morton’s retaliatory animus was a “but-for” cause of termination. Because Thomas’s termination was independently affirmed by Berry’s Termination Review Panel, the causal chain between Morton’s alleged animus and the retaliatory action was broken. The Tenth Circuit held that, even if it assumed retaliatory animus, Thomas could not show that the animus was a “but-for” cause of his termination.

The district court’s grant of summary judgment was affirmed.

Colorado Court of Appeals: State Personnel Board Lacked Authority to Review Non-Employee’s Claim

The Colorado Court of Appeals issued its opinion in Williams v. Department of Public Safety on Thursday, December 31, 2015.

Employee—Reinstatement—Colorado Anti-Discrimination Act—Sexual Orientation—Arbitrary and Capricious—Front Pay—Attorney Fees.

Plaintiff spent 12 years as a Colorado State Patrol (CSP) employee, climbing the ranks from trooper to captain. In 2010, he resigned from CSP to pursue his dream of becoming a helicopter pilot. He applied for reinstatement three months later. The new chief required plaintiff to complete a full background check and take a polygraph examination. During the pre-polygraph interview, plaintiff was asked questions eliciting information about his sexual orientation. Reinstatement was later denied on the basis that plaintiff failed the polygraph test. Plaintiff filed a complaint with the State Personnel Board (Board) alleging that CSP had acted arbitrarily or capriciously and that it had discriminated against him on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act (CADA). An administrative law judge (ALJ) found in favor of plaintiff.

On appeal, CSP contended that the Board did not have authority to review plaintiff’s claim that CSP acted arbitrarily or capriciously in declining to reinstate him. The statutory scheme unambiguously grants the State Personnel Director authority over claims of an arbitrary or capricious action. The Board has authority to review a “discriminatory or unfair employment practice[]” of nonemployee appointment decisions as defined in CADA, but it does not have authority to consider a nonemployee’s claim of arbitrary or capricious action. Accordingly, the claim was remanded to the Board for referral to the Director, who could consider whether the claim was tolled by lack of notice.

CSP contended that the record lacked sufficient evidence to support the ALJ’s conclusion that CSP discriminated against plaintiff based on his sexual orientation. However, the record supports the findings that CSP intentionally discriminated against plaintiff based on his sexual orientation. Supporting evidence included plaintiff’s exemplary record while previously employed, the treatment of plaintiff by CSP after it was discovered that he was gay, and the disparate treatment between plaintiff and other re-hires in similar situations.

CSP also argued, and the Court of Appeals agreed, that the former CRS § 24-34-405 did not authorize the Board to award front pay. Because the Board exceeded its jurisdiction in awarding this remedy, this portion of the Board’s order was reversed. On remand, the Board could consider ordering reinstatement.

Finally, CSP contended that the Board’s attorney fees award to plaintiff was unsupported by substantial evidence. However, the record supports the ALJ’s conclusions that CSP’s decision-making process lacked any reasonable basis and was made in bad faith. Therefore, the attorney fees award was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: District Court Within Discretion to Deny Late-Filed Motion to Amend Complaint

The Tenth Circuit Court of Appeals issued its opinion in Zisumbo v. Ogden Regional Medical Center on Friday, September 4, 2015.

Raymond Zisumbo worked at Ogden Regional Medical Center (ORMC) as a CT scan technician from March 2005 to October 2009. In 2009, Anthony Rodebush became Zisumbo’s supervisor. About the same time, Zisumbo applied for a promotion to a vacant CT Coordinator position. Rodebush expressed curiosity about why Zisumbo was eager for the promotion, and asked whether he’d ever been fired from other jobs. In response, Zisumbo produced letters from three previous employers to prove he was not fired, which Rodebush filed without reviewing. On September 15, 2009, at a staff pizza party, Rodebush remarked that Zisumbo wanted the CT Coordinator position and invited criticism from Zisumbo’s coworkers about why he was not suited for the job. Later that day, Zisumbo accused Rodebush of treating him differently because Zisumbo is Hispanic. Rodebush informed Zisumbo that he should discuss his concerns with the human resources manager, Chris Bissenden. Zisumbo interpreted this as a threat. Rather than discuss his concerns with Bissenden, Zisumbo filed a complaint with the Utah Antidiscrimination and Labor Division about a week after the pizza party alleging race discrimination, and also contacted ORMC’s ethics line with complaints of race discrimination and unprofessional behavior. ORMC’s record of the call noted only complaints of unprofessional behavior.

Judd Taylor, ORMC’s ethics compliance officer, investigated Zisumbo’s ethics line complaint and met privately with Rodebush during his investigation. He later met with Zisumbo and Rodebush, and the following day issued a written warning to Zisumbo for events that had occurred months earlier. Taylor and Rodebush also reviewed the letters Zisumbo had provided from his previous employers and immediately became suspicious that they were fabricated. On October 8, Rodebush and Taylor gave the letters to Bissenden, who began investigating their authenticity and discovered that at least one letter was falsified. Later that day, Taylor, Bissenden, and Rodebush met with Zisumbo and terminated his employment based on dishonesty because of the falsified letters.

On May 2, 2010, Zisumbo filed this action, alleging a Title VII hostile work environment claim. Six months later, ORMC permitted Zisumbo to amend his complaint to include Title VII claims based on race discrimination, hostile work environment, failure to promote, and discriminatory termination; a Title VII retaliation claim asserting that Zisumbo was fired for complaining about race discrimination; and a state law claim for breach of the duty of good faith and fair dealing. The district court entered a stipulated order setting deadlines for the litigation, including a September 2011 deadline for amending pleadings. However, in January 2012, Zisumbo sought to amend his complaint to add a claim of race discrimination under 42 U.S.C. § 1981. The district court denied his motion. Zisumbo then filed a new lawsuit in the same court alleging the same claims he unsuccessfully sought to add to his previous complaint and moved to consolidate the two actions. The district court dismissed his second complaint, and Zisumbo appealed to the Tenth Circuit. A prior panel of the Tenth Circuit ultimately rejected his “ill-conceived effort to end-run the district court’s decision.”

In the meantime, the district court granted summary judgment to ORMC on Zisumbo’s good faith and fair dealing, hostile work environment, and failure to promote claims. Zisumbo moved for reconsideration and alternatively sought to amend his complaint, which motions the district court denied. Zisumbo’s remaining claims were tried to a jury, which ultimately found against him on his discriminatory termination claim but for him on his retaliatory termination claim. Zisumbo sought back pay up to trial and reinstatement or front pay up to three years, but the district court foreshortened his award based on Zisumbo’s misdemeanor conviction for assaulting his daughter. Both parties sought attorney fees and ORMC moved for judgment as a matter of law on Zisumbo’s retaliatory termination claim. The district court denied ORMC’s motion and awarded attorney fees to Zisumbo, reducing his request based on his limited success in the litigation.

On appeal, the Tenth Circuit first addressed Zisumbo’s claim that the district court abused its discretion by not allowing him to amend his complaint after the September 2011 deadline. Although Zisumbo asserted his lawyer did not realize he could assert the § 1981 claim until January 2012, he possessed all the facts forming the basis of the claim by April 2011. The Tenth Circuit attributed the failure to timely amend his complaint to Zisumbo and found it well within the district court’s discretion to deny the proposed amendment. The Tenth Circuit also found no error in the district court’s grant of summary judgment to ORMC on Zisumbo’s good faith and fair dealing claim, finding that Zisumbo was an at will employee and had no contractual relationship with ORMC to necessitate a duty of good faith and fair dealing.

The Tenth Circuit next addressed ORMC’s cross-appeal regarding the district court’s denial of its renewed motion for judgment as a matter of law on the retaliatory termination claim. ORMC disputed that there was a causal nexus between the employee’s opposition to discrimination and the employer’s adverse action. The Tenth Circuit found ample record support for the nexus, including that Bissenden’s termination decision was made based on more than one of the falsified letters and that she acted together with Taylor and Rodebush in making the termination decision. ORMC also argued that no reasonable jury could have concluded that its decision to terminate Zisumbo was pretextual, but the Tenth Circuit again disagreed, finding that the timing of the termination supported an inference that he was terminated because he complained of discrimination.

Zisumbo also argued the district court erred in denying his request for a punitive damages instruction. The Tenth Circuit found Zisumbo’s proffered cases inapposite, and instead noted that he must show that ORMC, not just its employees, failed to make good faith efforts to comply with Title VII. Because ORMC had well established anti-discrimination policies, trained its managers on those policies, and consistently investigated reports of discrimination, the Tenth Circuit agreed with the district court that punitive damages were inappropriate.

Finally, the Tenth Circuit evaluated Zisumbo’s argument that he should have received more in back pay and front pay or reinstatement. The Tenth Circuit agreed with the district court that ORMC would have terminated Zisumbo based on the misdemeanor assault conviction and therefore it was appropriate to cut off the back pay award after the date Zisumbo pleaded guilty to the charge. The Tenth Circuit likewise approved of the method used by the district court to calculate the back pay award. The Tenth Circuit also approved of the district court’s reduction of the attorney fee award based on Zisumbo’s limited success in litigation.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Employee’s Onerous Commute Does Not Constitute Discriminatory Intent by Employer

The Tenth Circuit Court of Appeals issued its opinion in Bennett v. Windstream Communications, Inc. on Thursday, July 9, 2015.

Susan Bennett was employed for 12 years by Paetec Communications, Inc. as a Fiber Optic Tech III, where she performed work on fiber optic cables in various areas of Oklahoma and Arkansas. In 2011, Windstream acquired Paetec and implemented new policies requiring the Fiber Optic Techs to check in at regional offices every day at 8 a.m. The closest regional office to Ms. Bennett was in Tulsa, which required her to commute more than four hours every day. However, she never requested an accommodation due to her onerous commute. Frequently, Ms. Bennett arrived at the Tulsa office several hours late, and many days she did not check in at all. Ms. Bennett missed cross-training opportunities because of her failure to report to the Tulsa office.

On May 22, 2012, Ms. Bennett was subject to a disciplinary action for her tardiness and absences, and that day she reported chest and shoulder pain due to work-related stress. Windstream completed a workers’ compensation claim and Ms. Bennett initiated a short-term disability claim with MetLife, Windstream’s disability insurance carrier. MetLife paid benefits to Ms. Bennett through June 27, 2012, and Windstream paid out Ms. Bennett’s remaining vacation and paid leave days through July 27, 2012. Windstream retrieved a company vehicle and tools from Ms. Bennett in June 2012. On July 26, 2012, Windstream sent a letter to Ms. Bennett requiring her to elect one of three options by August 3, 2012: (1) return to work, (2) provide medical documentation supporting continued disability leave, or (3) resign, and advising her that a failure to respond would be considered job abandonment. Ms. Bennett emailed her supervisors on the deadline, advising that the discriminatory conditions Windstream placed on her left her no choice but to petition for severance pay. Windstream sent Ms. Bennett a letter on August 8 informing her that her employment was “separated” due to her failure to return from disability leave.

Ms. Bennett filed suit in district court, alleging gender discrimination in violation of Title VII and age discrimination in violation of the ADEA. The district court granted summary judgment to Windstream and Ms. Bennett appealed. The Tenth Circuit applied the McDonnell Douglas test to evaluate Ms. Bennett’s discrimination claims. Ms. Bennett asserted that her termination was the adverse employment action resulting from discrimination. The Tenth Circuit found that Ms. Bennett failed to articulate discriminatory animus. Although Ms. Bennett claims that she was denied training opportunities given to younger, male technicians, the Tenth Circuit found record support that Ms. Bennett’s failure to report to work was the reason she did not receive training. Ms. Bennett also claims that no other techs were required to check in, but Windstream presented evidence that all the techs were required to check in. The Tenth Circuit found Ms. Bennett failed to establish a prima facie case of gender or age discrimination. Further, Windstream articulated several legitimate, non-discriminatory reasons for the practices about which Ms. Bennett complained.

Ms. Bennett also asserted a Title VII retaliation claim, which the Tenth Circuit quickly dismissed based on its analysis of her gender and age discrimination claims. Similarly, the Tenth Circuit dismissed Ms. Bennett’s claims under the Oklahoma Anti-Discrimination Act. The Tenth Circuit also rejected her constructive discharge claim, finding she neither showed Windstream engaged in any discriminatory conduct, nor that such conduct was so egregious that she had no choice but to resign.

The district court’s grant of summary judgment to Windstream was affirmed.

Tenth Circuit: Waiver of 11th Amendment Immunity Applies to All Divisions of State Department of Labor

The Tenth Circuit Court of Appeals issued its opinion in Arbogast v. State of Kansas Department of Labor on Friday, June 19, 2015.

Kathleen Arbogast worked for the Kansas Department of Labor (KDOL) in the Workers’ Compensation Division and suffers from asthma. She complained that her co-workers’ perfumes were triggering asthma attacks, so the Division moved her to an office in the basement in September 2010, but she continued to have asthma attacks when co-workers would visit her office. In August 2011, Ms. Arbogast was terminated by her supervisor, Karin Brownlee. Ms. Arbogast filed suit in January 2013, asserting claims of discrimination and retaliation in violation of the Rehabilitation Act, and named as defendants KDOL and Brownlee in her individual capacity. KDOL sought to dismiss the Rehabilitation Act claims, arguing KDOL lacks the capacity to sue or be sued and Kansas has not waived its judicial immunity under the Eleventh Amendment. The district court denied KDOL’s motion to dismiss and KDOL brought an interlocutory appeal.

The Tenth Circuit first examined its appellate jurisdiction to consider KDOL’s claim that it lacked capacity to be sued. KDOL argued that under state law, as a mere agency of the state, it lacked capacity to sue or be sued, and the collateral order doctrine conferred immediate jurisdiction on the Tenth Circuit to hear the issue. However, at oral argument, KDOL’s counsel conceded that the collateral order doctrine may not permit interlocutory review of the capacity argument. The Tenth Circuit agreed with the concession. Citing three requirements to invoke jurisdiction under the collateral order doctrine, i.e., (1) the district court’s order conclusively resolved the disputed issue, (2) the order resolved an issue separate from the merits of the case, and (3) the order is effectively unreviewable on order from final judgment, the Tenth Circuit found KDOL’s argument failed at the first prong because the district court did not conclusively determine KDOL’s capacity to sue or be sued. The Tenth Circuit dismissed the issue on appeal.

Next, the Tenth Circuit evaluated whether KDOL waived Eleventh Amendment immunity by accepting funds for the Unemployment Insurance Division housed within the Department of Labor. KDOL contended that because Ms. Arbogast worked for the Workers’ Compensation Division, not the Unemployment Insurance Division, there was no waiver of immunity. Looking at the Rehabilitation Act, the Tenth Circuit found the plain language included in the waiver of immunity “all the operations of . . . a department . . . of a State.” Since the Workers’ Compensation Division and Unemployment Insurance Division were both housed in the Kansas Department of Labor, the acceptance of funds for the Unemployment Insurance Division constituted a waiver of Eleventh Amendment immunity for the entire Department of Labor. Kansas argued that extending the waiver of immunity to the Workers’ Compensation Division when it received no federal funds would violate the Spending Clause of the U.S. Constitution. The Tenth Circuit found the first Dole factor was satisfied because allowing those who suffer discrimination to bring private causes of action is “reasonably calculated” to achieve Congress’s goal of combating discrimination. KDOL also argued it did not have notice of its waiver, but the Tenth Circuit disagreed, finding the plain language of the Rehabilitation Act provided sufficient notice that the waiver extended to all the operations of the department. KDOL also argued that the waiver of immunity is unrelated to the federal interest justifying expenditure of the funds, but the Tenth Circuit again disagreed, finding that Congress’s intent to eliminate discrimination based on disability was reasonably related to its distribution of federal funds.

The Tenth Circuit dismissed due to lack of jurisdiction KDOL’s argument that it lacked capacity to be sued. The Tenth Circuit affirmed the district court’s finding of a waiver of Eleventh Amendment immunity.

Tenth Circuit: Verification Requirement for EEOC Charge Non-Jurisdictional

The Tenth Circuit Court of Appeals issued its opinion in Gad v. Kansas State University on Wednesday, May 27, 2015.

Sabreen Gad was hired by KSU in 2010 as a part-time assistant professor of geology. She subsequently requested to be promoted to a full-time professorship or promote her to membership on the graduate faculty, and when she did not receive either promotion, she filed an unverified charge with the EEOC alleging religious, sex, and national origin discrimination. The EEOC investigator mailed her a Form 5, which has a box in which to sign under penalty of perjury, satisfying the verification requirement, and also a letter instructing her to verify the charge within 30 days or the EEOC would be authorized to dismiss the charge. The investigator also mailed a letter to KSU that Gad had filed an “unperfected” charge of discrimination, and advising that no action was required by KSU. Later, the investigator spoke to Gad again and advised her that further investigation would be unlikely to result in a violation and the EEOC would issue her a dismissal and right-to-sue notice. The notice was mailed to Gad and copied to KSU after the conversation.

Gad sued KSU in federal court. KSU’s answer stated that Gad had failed to exhaust her administrative remedies but did not mention the unverified charge. KSU then moved for summary judgment, arguing the court lacked jurisdiction because Gad had failed to exhaust administrative remedies by not verifying her EEOC charge. The district court agreed, finding exhaustion of administrative remedies is a jurisdictional prerequisite to suit. Gad appealed.

The Tenth Circuit first discussed whether Title VII’s verification requirement was a prerequisite to its subject matter jurisdiction. Although Title VII specifically confers jurisdiction as a general matter, it also requires claimants to submit a “charge” to the EEOC, which must be in writing and must be signed and verified. The Tenth Circuit noted that it is not clear whether the verification requirement is a jurisdictional prerequisite to a Title VII suit. The Tenth Circuit analyzed Supreme Court cases and its own precedent and concluded (1) the language discussing Title VII jurisdiction was not located in the same statute as the verification requirement, tending to show the verification requirement was non-jurisdictional; (2) courts should be careful in interpreting procedural rules to deprive non-lawyers of rights in proceedings they initiate; (3) verification protects employers from the burden of responding to frivolous claims or claims of which they had no notice; and (4) failure to verify will not necessarily render a document fatally defective.

Applying the four principles to the verification requirement, the Tenth Circuit determined it was non-jurisdictional, but noted “[h]olding verification non-jurisdictional does not imply any diminution in the need for plaintiffs to comply with this Title VII requirement.” The Circuit held that an employer may still achieve dismissal based on a verification defect, and found that verification is a condition precedent to suit. The verification requirement is integrated into a statutory section delineating steps a plaintiff must satisfy before receiving leave to sue. Although Gad argued only the EEOC waived the requirement, not KSU, the Circuit held the requirement cannot be waived unilaterally, but non-compliance may be excused in some cases.

The Tenth Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.

Tenth Circuit: Bifurcation of Position Does Not Defeat Comparison for Employment Discrimination Claims

The Tenth Circuit Court of Appeals issued its opinion in Riser v. QEP Energy on Tuesday, January 27, 2015.

Kathy Riser, who was 50 years old in 2013, began working for Questar Exploration and Production Co. in 1997. In 2003, she became an Administrative Services Representative II, where she managed a fleet of 250 vehicles, performed facilities management duties, and managed construction projects in several states. She was the only Questar employee performing fleet management and facilities management duties. In 2010, QEP was spun off from Questar and became a separate entity. Based on the title of Ms. Riser’s job and not her actual duties, she was classified under the new employee classification system as a Grade 5 employee making $22.78 per hour or $47,382 annualized. Twice Ms. Riser requested that her title and salary be changed to reflect her actual duties, but her supervisor, Mr. Beach, would not respond.

In May 2011, QEP created a new position, “Fleet Administrator,” and had Ms. Riser craft a job description for the position based on her fleet management duties. The position was classified as a Grade 7 position with an annual salary of $62,000. QEP hired Matthew Chinn, a 39-year-old man, as Fleet Administrator in June 2011. Ms. Riser trained Mr. Chinn in fleet management duties until her termination in September 2011. QEP stated that Mr. Chinn took over Ms. Riser’s fleet management duties as well as other duties; however, Ms. Riser stated that she was in the process of implementing the new programs when Mr. Chinn was hired.

In August 2011, QEP began discussing creating a new “Facilities Manager” position and spoke with Jason Bryant, a 30-year-old man, about the position. QEP stated they were receiving complaints about Ms. Riser’s work overseeing a North Dakota construction project, but none of these complaints were conveyed to her during the time period and she continued to receive favorable reviews. QEP terminated Ms. Riser on September 8, 2011, stating her termination was due to her poor performance on the North Dakota construction project. She had not received any warning or been placed on suspension prior to her termination. QEP then hired Mr. Bryant as the facilities manager, classified as a Grade 7 employee and making $66,000 annually.

Ms. Riser brought suit against QEP in federal district court in Utah alleging: (1) pay discrimination under the EPA, Title VII, and ADEA; (2) failure to promote under Title VII and the ADEA; and (3) discriminatory discharge under Title VII and the ADEA. The district court granted summary judgment to QEP on all claims. Ms. Riser appealed the summary judgment on all but her failure to promote claim.

The Tenth Circuit found Ms. Riser’s claims to be precisely the sort of factual disputes that preclude summary judgment. On her EPA claims, the district court held that Ms. Riser had not established that her job was “substantially equal” to either Mr. Chinn’s or Mr. Bryant’s job, and also that even if she could establish a prima facie claim of discrimination, the pay scale was based on a gender-neutral system. The Tenth Circuit disagreed on both points, finding “the fact that a female employee performed additional duties beyond a male comparator does not defeat the employee’s prima facie case under the EPA.” The Tenth Circuit noted that QEP’s argument that Ms. Riser had no comparator was especially disingenuous, since her position was bifurcated to create the two jobs which were then given to younger men at a higher rate of pay. The Tenth Circuit similarly disposed of QEP’s argument that its pay scale was gender-neutral, as Ms. Riser’s pay was not based on her actual duties but rather those duties typically performed by people with her title. The Tenth Circuit likewise found merit to Ms. Riser’s Title VII and ADEA claims, since they had a lower burden of proof.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Riser’s discriminatory discharge claims, finding these were not adequately briefed. In her opening argument, Ms. Riser did not argue that she satisfied her prima facie case, only that one existed. The Tenth Circuit concluded this argument was waived.

The district court’s summary judgment was affirmed in part, reversed in part, and remanded.

Tenth Circuit: Burden Shifts to Plaintiff to Rebut Defendant’s Claim of Termination for Misconduct

The Tenth Circuit Court of Appeals issued its opinion in Estate of Bassatt v. School District No. 1 in the City & County of Denver on Wednesday, December 31, 2014.

In 2007, Carlos Bassatt was student teaching at West High School in Denver while he pursued a Masters of Education degree from Regis University. On September 14, 2007, Bassatt left the school building, got into his Ford Focus, and reclined the seat. Maria Iams, a district employee, parked next to him, and when she bent to retrieve something in her car, she saw a man masturbating in the Ford Focus. She did not know Bassatt and did not know he worked at West. She reported the incident to school officials, and it was then relayed to West’s resource officer. After reviewing security videos, Iams was able to identify the car but not the person who left the car to enter the school building. The Dean of Students, Dan Trujillo, identified the man as Bassatt.

On the morning of September 17, 2007, Trujillo and West’s principal, Patrick Sanchez, had a meeting with Bassatt and informed him that he had been accused of masturbating in his car in the West parking lot. Bassatt was placed on administrative leave. He was summoned to the Denver Police Department, but ultimately no charges were filed against him. Sanchez sent Bassatt an email on September 19 saying that he was clear to return to West, but later spoke to the district’s Director of Labor Relations, who advised Sanchez that the District Attorney’s decision not to prosecute did not stop the district from taking action against Bassatt.

Sanchez and the Director of Labor Relations met with Bassatt and his wife, who was a teacher at West, on September 26. Bassatt declared that the accusation was racially motivated and the decision to end his placement at West was discriminatory. He was terminated from his placement on September 27, 2007.

Bassatt filed charges with the Colorado Civil Rights Commission (CCRC), alleging discrimination and retaliation by the district. After a two-day hearing, an ALJ concluded Bassatt had failed to prove either discrimination or retaliation. Bassatt appealed to the CCRC, which reversed the ALJ’s determination on the retaliation claim, finding that Bassatt had established a prima facie case of retaliation and the district’s termination was pretextual. The district appealed to the Colorado Court of Appeals, which affirmed the CCRC’s finding that Bassatt had established a prima facie case of retaliation. However, the court remanded to the CCRC to consider the ultimate issue of retaliation.

Before the CCRC could issue its opinion on remand, Bassatt filed suit in the U.S. District Court for the District of Colorado, raising a number of issues, including retaliation in violation of Title VII and in breach of his student teacher agreement. The CCRC then issued its final order on remand, concluding that the district had terminated him in retaliation for his accusations of discrimination, and the district had not provided a non-discriminatory reason for its actions. In August 2012, Bassatt died, and his estate was substituted as plaintiff in the district court action.

The district court granted summary judgment to the district, concluding the estate had failed to make a sufficient showing of pretext to defeat summary judgment on its Title VII claim. It also dismissed his §§ 1981 and 1983 claims, because Bassatt did not have a contract to student teach. The estate appealed.

The Tenth Circuit first noted that it was not bound by the administrative agency’s findings, but the state court’s factual and legal determinations had a preclusive effect as to the Tenth Circuit’s review. The Colorado Court of Appeals’ opinion that the Estate made a prima facie case of retaliation was thus binding on the Tenth Circuit. The Circuit noted that it need only find whether (1) the district provided a legitimate, non-discriminatory reason for its decision, and (2) the estate was able to demonstrate that the reason was mere pretext. The Tenth Circuit found the incident in the parking lot to be a legitimate and non-discriminatory reason for the employment decision and turned to the pretext question.

The Tenth Circuit agreed with the district court that the estate failed to provide sufficient evidence to create a triable issue on pretext. The estate argued that the district court impermissibly shifted the burden of proof, but the Tenth Circuit noted that in employment discrimination actions, the plaintiff must rebut the employer’s claim of misconduct, which the plaintiff here did not do. Next, the estate argued the district court erred in finding Sanchez made a sincere credibility determination in believing Iams, contending insufficient evidence supported her credibility. However, in this case, Sanchez had no direct evidence either way, heard stories from both sides, and decided ultimately to believe Iams. The estate also argued that Sanchez’s first email inviting Bassatt back to work was evidence that he believed Bassatt, but the Tenth Circuit disagreed, finding it was bound by the court of appeals’ decision that specifically reviewed and rejected that position. The Tenth Circuit found no evidence of pretext.

The estate also argued that the CCRC’s second order provided evidence of pretext. However, the Tenth Circuit is not bound by administrative opinions, and found it unpersuasive on review. Turning then to the §§ 1981 and 1983 claims, the Tenth Circuit found again that the estate could not show pretext, and also that there was no employment contract between Bassatt and the district. The estate argued that Bassatt’s student teacher agreement qualified as a contract, but the Tenth Circuit disagreed, finding it did not create a contract.

The Tenth Circuit affirmed the district court’s grant of summary judgment to the school district.

Tenth Circuit: Employee Must Be Able to Perform Essential Job Duties to Make Claim Under ADA and Title VII

The Tenth Circuit Court of Appeals issued its opinion in Myers v. Knight Protective Service, Inc. on Monday, December 22, 2014.

Alphonso Myers suffered a workplace injury, and was granted Social Security disability benefits on the ground he was unable to work. He then applied for and was selected for a position as a security guard for Knight Protective Service. During the interview process, he was asked repeatedly if he had any physical disabilities, and answered no each time. However, at work, his supervisor noticed he seemed to be in pain, and Myers confessed to having undergone several back and neck surgeries. The supervisor sent him home and told him he could not return to work unless he passed a physical examination. Several months passed, during which Myers waited for Knight to contact him to schedule the exam, but it did not happen, so Myers considered himself effectively terminated and sued Knight for race and disability discrimination, alleging several torts. The district court dismissed some of Myers’ claims and granted summary judgment to Knight on the rest. Myers appealed.

The Tenth Circuit affirmed the district court. In order to make a claim under the ADA and Title VII, the employee must show he was qualified to perform the essential functions of the job. Myers could not show qualification; in his application with Knight, he acknowledged he would be required to “engage in frequent and prolonged walking, standing, and sitting; to react quickly to dangerous situations; to subdue violent individuals; and to lift heavy weights.” He could do none of those activities.

The Tenth Circuit also rejected Myers’ assertion of disparate treatment based on race, finding no support for his allegations. The Tenth Circuit likewise rejected Myers’ complaint that the district court failed to address his “cat’s paw” argument as to his supervisor, since he failed to establish a prima facie case of discrimination by anyone. Myers’ tortious interference claims also failed for lack of evidence.

The Tenth Circuit affirmed the district court’s dismissal and summary judgment and granted the motion to seal certain medical records.

Tenth Circuit: Surmise and Conjecture Insufficient to Establish Causal Connection Between Discrimination Claim and Refusal to Promote

The Tenth Circuit Court of Appeals issued its opinion in Ward v. Jewell on Monday, November 24, 2014.

Mike Ward was once a supervisor for the Department of the Interior, Bureau of Reclamation. After another employee filed a charge of discrimination against Mr. Ward, he was demoted and Mr. Durrant took over his supervisory role. Mr. Ward complained to the EEOC about the reorganization, and a few years later, he tried unsuccessfully to get his old job back. Later, he applied for a managerial position in Provo, Utah, but was not selected. He invoked Title VII, blaming his employer for retaliation for failing to give him his old job back and passing over him for the Provo position. To survive summary judgment, he had to show a connection between the protected activity and the refusal to give him his old job back or hire him for the other supervisory position.

The Tenth Circuit analyzed Mr. Ward’s Title VII claims and found that he did not show a connection between the protected activity and the employment actions. Because of the remoteness in time between Mr. Ward’s EEOC claim and the Department’s refusal to terminate or demote Mr. Durrant and give Mr. Ward his old job back, Mr. Ward needed to use additional evidence to establish a causal connection between the two events. Mr. Ward could only produce evidence of a causal connection using surmise and conjecture, which was insufficient to be probative of retaliation, and a reasonable fact-finder could not infer retaliation from the decision to keep another employee in his job.

As to the second claim, the Tenth Circuit again found causation lacking in the failure to hire Mr. Ward for the Provo position. Mr. Ward would have had to prove retaliation through a “cat’s paw” theory, imputing the biased motive of a subordinate to the final decision-maker. Mr. Ward could not advance any evidence to show that the final decision-maker relied on information from subordinates. An initial panel recommended two candidates (Mr. Ward was not one of the two) to the final hiring agent, Mr. Walkoviak, but Mr. Walkoviak instead interviewed all five applicants for the Provo position and decided to hire an applicant based on his experience. The panel ultimately had little to no input on Mr. Walkoviak’s hiring decision, and the “cat’s paw” theory failed. Mr. Ward was unable to show any retaliation based on Mr. Walkoviak’s failure to hire him for the Provo position.

The Tenth Circuit found Mr. Ward unable to show discriminatory motive for either of the employment decisions, and affirmed the district court’s summary judgment in favor of the Department.

Tenth Circuit: Summary Judgment for Employer Reversed on FMLA and ADA Claims

The Tenth Circuit Court of Appeals published its opinion in Smothers v. Solvay Chemicals, Inc. on Tuesday, January 21, 2014.

Steven Smothers worked for Solvay Chemical, Inc. (“Solvay”) for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker. He sued Solvay, claiming the company’s true motivations were retaliation for taking medical leave from work, in violation of the Family Medical Leave Act (“FMLA”), and discrimination on the basis of his medical disability, in violation of the Americans with Disabilities Act (“ADA”). He also brought a state law claim for breach of implied contract. The district court granted summary judgment for Solvay on his FMLA and ADA claims and on his state law claim for breach of implied contract.

Smothers sought and was granted FMLA leave from Solvay for intermittent absences caused by severe neck and back pain. Solvay considered him an excellent, reliable mechanic with strong job knowledge, but managers and coworkers complained about his FMLA-protected absences.

The Tenth Circuit held that Smothers met his prima facie burden on his FMLA and ADA claims and presented a genuine dispute of material fact as to whether Solvay’s stated purpose for firing him was pretextual. After viewing the evidence in Smothers’ favor, it showed that: (1) Solvay treated Smothers differently from similarly situated employees who committed comparable safety violations; (2) Solvay’s investigation into Smothers’ quarrel with Mahaffey was inadequate; and (3) Solvay managers previously took negative action against Smothers because of his FMLA-protected absences. Together these grounds create a triable issue of fact as to whether Mr. Smothers’ FMLA leave was a substantial motivation in Solvay’s decision to fire him.

The court rejected Solvay’s argument that the group of decision makers who fired Smothers was different from groups that disciplined other employees. The court held that requiring absolute congruence of decision maker members “would too easily enable employers to evade liability for violation of federal employment laws. The district court erroneously rejected Mr. Smothers’ pretext argument by insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary decision. We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to Mr. Smothers.”

The court also rejected Solvay’s argument that evidence of previous negative comments and actions about Smother’s FMLA leave were irrelevant to support his FMLA claims as they did not qualify as adverse employment actions. These incidents were relevant to a pretext inquiry, even if they could not be used to directly support a retaliation claim.

The court reversed the grant of summary judgment to Solvay on the FMLA and ADA claims, and affirmed on the state law claim of breach of contract as Smothers failed to show how the decision to discharge him violated the terms of Solvay’s handbook.

Enforcing Drug-Free Workplace Policies In Light of Colorado’s Legalization of Marijuana Use

Johnson_JeffBy Jeffrey T. Johnson

Does an employer’s drug-free workplace policy trump an employee’s use of medical marijuana to treat disabling medical conditions? Yes, according to a recent decision by a Colorado federal judge. In Curry v. MillerCoors, Inc., Judge John Kane rejected a terminated employee’s claim that his employer discriminated against him on the basis of his disability when it discharged him for testing positive for marijuana. Curry v. MillerCoors, Inc., No. 12-cv-02471 (D. Colo. Aug. 21, 2013).

Discharging Employee for Positive Drug Test Not Disability Discrimination

Paul Curry asserted that he suffered from hepatitis C, osteoarthritis and pain. He obtained a medical marijuana license from the State of Colorado to manage the symptoms of his disabling medical conditions. He claimed that he never used marijuana on his employer’s premises and was never under the influence of marijuana at work. He sued after his employer fired him for testing positive for marijuana in violation of the company’s written drug policy. He alleged, among other things, that his termination constituted disability discrimination under C.R.S. § 24-34-402(1)(a).

Despite Curry’s claim that he used marijuana legally to treat his medical conditions, the court found that it was lawful for the company to terminate him under its drug-free workplace policy. Judge Kane wrote “. . . a positive test for marijuana, whether from medical or any other use, is a legitimate basis for discharge under Colorado law.” Moreover, he stated that “anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.” The court concluded that MillerCoors’s enforcement of its drug-free workplace policy was a lawful basis for its decision to fire Curry.

No Violation of Colorado’s Lawful Activities Statute

Curry also asserted that his termination violated Colorado’s lawful activities statute, C.R.S. § 24-34-402.5(1). The statute prohibits employers from terminating an employee due to the employee engaging in a lawful activity off-duty and off the employer’s premises. The court found no violation, relying on the recent Colorado Court of Appeals decision in Coats v. Dish Network LLC, which held that because marijuana use remains illegal under federal law, an employee’s use of medical marijuana is not a “lawful activity” under the state lawful activities statute. In the Curry case, the court concluded that under established Colorado law, discharging an employee who tests positive for marijuana in violation of an employer’s drug-free workplace policy is lawful, “regardless of whether the employee consumed marijuana on a medical recommendation, at home or off work.”

Medical vs. Recreational Marijuana Use – Does it Matter?

The Curry and Coats decisions both addressed the termination of an employee who used marijuana for medical purposes within the limits of a state-issued medical marijuana license. With the passage of Amendment 64 last November legalizing the adult use and possession of small amounts of marijuana, the next question is whether an employee’s use of marijuana for recreational purposes will be treated similarly by the courts. Based on the broad, sweeping language used by the Colorado Court of Appeals in Coats and the U.S. District Court for the District of Colorado in Curry, the answer is yes. Both courts expansively upheld employer terminations of employees who tested positive for marijuana in violation of company drug policies, suggesting that their reasoning is not limited to the use of medical marijuana. It may take some time for a recreational marijuana termination case to reach the courts so we may not know definitively for a few years. In addition, either or both of these cases may be reversed on appeal. Absent that, however, all indications point to the same result for an employee discharge due to any positive drug test, regardless of whether the employee used marijuana for medical or recreational purposes.

Employers Should Strengthen, Communicate and Enforce Their Drug-Free Workplace Policies

Employers should review their drug testing and/or drug-free workplace policies to ensure that the policies apply to all controlled substances, whether illegal under state or federal law. Policies should clearly indicate that a positive drug test may result in termination of employment, regardless of whether the employee appears to be “under the influence” at work.  Employers then should communicate their drug-free workplace policies to their employees and enforce the policies in a consistent and uniform manner. Under these recent court decisions, terminating an employee who violates a written company drug-free policy will be lawful, even when the employee used marijuana legally under Colorado law.

Learn more about how new laws and rulings in Colorado and elsewhere will affect businesses large and small. From marijuana and social media to credit reports and arbitration agreements, employers need to adapt their policies to stay compliant and minimize liability. Experienced labor and employment lawyers Jeffrey T. Johnson, Esq., of Holland & Hart LLP and Todd J. McNamara, Esq., of McNamara Roseman & Kazmierski LLC will present “Advising Your Business Client on Employment Law – Recent Developments,” at CBA-CLE’s Business Law Institute on October 16, 2013. To register for the Business Law Institute, click here or call (303) 860-0608.

With more than three decades of experience, Jeffrey T. Johnson counsels employers on virtually every area of labor and employment law, including employment discrimination, wrongful discharge, wage and hour, WARN, employee policies, discipline, National Labor Relations Act matters, non-compete and non-disclosure agreements and employee safety and health.  When litigation arises, he serves as a battle-tested, effective advocate for his clients in federal and state courts and agencies as well as in arbitration.  Mr. Johnson is a Fellow of the College of Labor and Employment Lawyers and is recognized as a top labor and employment lawyer by Chambers USA, Best Lawyers in America, Colorado Super Lawyers, and Who’s Who Legal USA. He is also an arbitrator for the American Arbitration Association, Employment Law Panel (Denver).

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.