CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. #15.) In this case, Plaintiff brings three employment-related claims: (1) a claim under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a); (2) a common-law tort claim for retaliation, for filing a claim for benefits under the Workmen's Compensation Act; and (3) a constitutional Due Process claim. (Doc. #10, ¶¶ 3-4.)
The following facts are undisputed, unless otherwise noted.
Plaintiff Don Angell was the fire chief of the Fairmount Fire Protection District ("FFPD"), located in Golden, Colorado, when he was terminated on March 31, 2011. (Doc. ##10, ¶ 8; 15, ¶ 1.) FFPD is
At an August 26, 2009 Board meeting, Plaintiff presented a new business venture to the Board, in which FFPD would conduct prescribed burns in Nebraska, Kansas, and Oklahoma, with an entity called "Up in Smoke" ("UIS"). (Id., ¶ 4.) At that Board meeting, Plaintiff told the Board he would have FFPD's attorney, Jim Petrock ("Petrock") "look things over and come up with an agreement for both parties."
Plaintiff was diagnosed with cancer in September of 2010. (Doc. #15, ¶ 16.) He filed a workers' compensation claim on October 17, 2010, relating to his cancer. (Doc. #15-29.) Additionally, he underwent multiple surgeries for his cancer. (Doc. #20, ¶ 7.) At some point prior to being fired,
At a March 9, 2011 Board meeting, the Board and Plaintiff again discussed the prescribed burn project with UIS. (Doc. #15-8 at 5-8.) According to the Board minutes of that meeting, Plaintiff admitted
However, on March 18, 2011, in a letter to Petrock, Plaintiff wrote, "there is no `Contract' [with UIS][,] only this working agreement to which all parties had agreed." (Doc. #15-4.) A day later, Plaintiff was suspended with pay. (Doc. #15, ¶ 14.) The Board met again on March 30, 2011 to discuss whether to terminate Plaintiff.
FFPD has an "Employee Guidelines Manual" ("the Employee Manual"), which provides, on the first page, that:
(Doc. #15-18 at 3.) Additionally, the Employee Manual provides a "Grievance Procedure," which states:
(Id. at 4.) Additionally, the Employee Manual states that "if any employee is not satisfied with the Chief's written response to their grievance, the employee may appeal in writing to the Board within seven days from the date of the Chief's written decision, with the employee's agreement to appear personally before the Board to discuss the grievance." (Id. at 4-5.)
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant who does not bear the ultimate burden of persuasion at trial need not disprove the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party "to set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein. Id.
The ADA prohibits discrimination against a "qualified individual with a disability on the basis of the disability." Valdez v. McGill, 462 Fed.Appx. 814, 817 (10th Cir.2012) (quoting 42 U.S.C. § 12112(a)). To establish a prima facie case of discrimination under the ADA, a plaintiff must show that: (1) he is a disabled person as defined by the ADA; (2) he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held; and (3) his employer discriminated against him because of his disability. Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1217 (10th Cir.2010); see also MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005) (same).
Where, as here, a plaintiff seeks to establish an ADA violation through circumstantial evidence, the Court applies the three-step analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). MacKenzie, 414 F.3d at 1274. Under McDonnell Douglas, Plaintiff must first establish a prima facie case of discrimination. If Plaintiff can do so, "the burden shifts to the defendant to offer a legitimate nondiscriminatory reason for its employment decision. Should the defendant articulate a nondiscriminatory reason, the burden shifts back to plaintiff to show a genuine issue of material fact as to whether defendant's reason for the discharge is pretextual." Johnson, 594 F.3d at 1217 (citation omitted). However, at all times, the plaintiff bears the ultimate burden of proving discrimination. Butler v. City of Prairie Vill., Kan., 172 F.3d 736,
The ADA defines the term "disability" as "(A) a physical or mental impairment that substantially limits one or more major life activities ... (B) a record of such an impairment; or (C) being regarded as having such an impairment."
It is undisputed that Plaintiff was diagnosed with cancer in September of 2010. (Doc. #13, ¶ 16.) The Tenth Circuit has not decided an ADA-related case involving cancer since the ADAAA became effective on January 1, 2009. See Rhodes v. Langston Univ., 462 Fed.Appx. 773, 777 (10th Cir.2011). However, Congress passed the ADAAA with the explicit purpose of "reinstating a broad scope of protection ... under the ADA," Pub.L. No. 110-325 § 2(b)(1), 122 Stat. 3553-3554 (2008), and stated that "it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."
Pertinent to this case, the ADAAA provides that "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." Id. § 12102(4)(D). Additionally, the definition of a "major life activity" was specifically expanded in the ADAAA, to include "operation of a major bodily function, including ... normal cell growth." Id. § 12102(2)(B). As the Equal Employment Opportunities Coalition ("EEOC") implementing regulations state,
Based upon the ADAAA and the EEOC's post-enactment regulations, several courts have held that a Plaintiff's cancer is a disability for purposes of the ADAAA, even when the cancer is in remission. See Norton v. Assisted Living Concepts, Inc., 786 F.Supp.2d 1173, 1185 (E.D.Tex.2011) (remissive cancer is a disability under the ADAAA); Hoffman v. Carefirst of Fort Wayne, Inc., 737 F.Supp.2d 976, 985-86 (N.D.Ind.2010)
In its Motion for Summary Judgment, Defendant does not dispute Plaintiff's qualifications for the job of fire chief, or state that his disability meant that he could no longer perform the essential functions of his job. (See Doc. #15 at 9-11.) However, in its Reply — for the first time — Defendant argues that Plaintiff's "gross fiduciary failures" in failing to obtain a contract with UIS demonstrated that he was unable to perform the essential functions of his job. (Doc. #26 at 16.) Even if the Court were to consider this argument,
To establish the third element of a prima facie case of disability discrimination, Plaintiff must show that the employer terminated him "under circumstances which give rise to an inference that the termination was based on [his] disability." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997). "This formulation [of the third prong] should not be interpreted as diminishing the plaintiff's burden in proving her prima facie case. While the burden is not onerous, it is also not empty or perfunctory." Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 747-49 (10th Cir.1999) (internal quotation omitted). To meet the third prong, a plaintiff must present "some
In this case, Plaintiff has not presented any "affirmative evidence" that his
Beyond mere awareness, the only other piece of evidence arguably showing a causal connection between Plaintiff's disability and his termination was Chairman Corbin's comment to Plaintiff, upon returning from surgery, that Plaintiff "could not go out on [emergency] calls." (Doc. #20-2, ¶ 13.) It is hard to perceive how this comment evinces discriminatory animus, as it was made out of concern for Plaintiff's health. In any event, "[e]vidence demonstrating discriminatory animus in the decisional process needs to be distinguished from stray remarks in the workplace ... or statements by decisionmakers unrelated to the decisional process." McCrary v. Aurora Pub. Sch., 57 Fed.Appx. 362, 367 (10th Cir. 2003). For a statement to constitute evidence of discrimination (rather than a "stray remark"), the plaintiff must show that it was "made by a decision maker, and that there was a nexus between the discriminatory statement[] and the decision to terminate." McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir.1998). Although Corbin, as a member of the Board, had some decision-making power regarding Plaintiff's employment, Plaintiff provided no evidence of a causal nexus between the statement and the Defendant's decision to terminate Plaintiff. Indeed, the comment occurred at least a month prior to Plaintiff's termination on March 31, 2011,
Plaintiff presents no other affirmative evidence that his disability was a "determining factor" in his termination. At best, there is weak evidence of temporal proximity, because Plaintiff was terminated approximately five months after his cancer diagnosis.
For these reasons, the Court finds that Plaintiff cannot establish he was discriminated against "because of" his disability, and therefore that he has not established a prima facie case of discrimination.
Even assuming that Plaintiff established a prima facie case, the Defendant here has alleged a legitimate, nondiscriminatory reason for Plaintiff's termination, and Plaintiff has not shown that the Defendant's reason is pretextual. See Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260 (10th Cir.2001). Pretext can be demonstrated by "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Morgan, 108 F.3d at 1323 (internal quotation omitted). However, "mere conjecture that [the] employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment," Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988), and "a plaintiff's allegations alone will not defeat summary judgment." Morgan, 108 F.3d at 1324. "When assessing whether [a] plaintiff has made an appropriate showing of pretext, [the court] must consider the evidence as a whole." Danville v. Reg'l Lab Corp., 292 F.3d 1246, 1250 (10th Cir.2002). Additionally, the Supreme Court has instructed that an employer would be entitled to summary judgment "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Here, Plaintiff argues that Defendant's justifications for Plaintiff's termination were inconsistent and contradictory, insofar as Defendant claimed it fired Plaintiff for both failing to enter into, and for entering into, a contract with UIS. Further, Defendant claimed that the FFPD's monetary loss from the failure of the UIS project both was — and was not — the reason for Plaintiff's termination. Plaintiff points to three sources of arguable inconsistencies in Defendant's explanations:
However, these explanations, to the extent they are inconsistent, merely reflect the confusion surrounding whether a formal, binding contract existed with UIS. This confusion was justifiable given Plaintiff's own assertions at the March 2011 Board meeting that a written contract existed and had been signed, and his later assertion in writing, that only an unsigned "working agreement" existed. (See Doc. ## 15-4; 15-8 at 5-6.) Additionally, Corbin and Herblan's statements — that the failure to obtain a contract was the central cause of Plaintiff's termination — are not inconsistent with the termination letter's citation to a significant monetary loss as a reason (not the reason) for termination.
Plaintiff contends that another portion of Corbin's testimony is evidence of pretext. Corbin stated that, at one point, he had believed that the FFPD's burn work with UIS was being done on a "deployment-type" basis,
Ultimately, it is uncontested that Plaintiff did not take the steps he was supposed to and promised to take in securing a contract with UIS, and that his failure to secure a contract led to significant losses for the FFPD. To the extent there are inconsistencies in the Board member's statements, such inconsistencies are extremely minor and do not demonstrate that Defendant's explanation was "unworthy of credence." Morgan, 108 F.3d at 1323. At most, Plaintiff has "created only a weak issue of fact as to whether the employer's reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Although the Court has found that Plaintiff cannot establish a prima facie case of discrimination on the basis of disability, the Court also finds that Plaintiff has failed to provide sufficient evidence that Defendant's legitimate, nondiscriminatory reason was pretextual. Thus, Defendant is entitled to summary judgment on Plaintiff's ADA claim.
Under the Workmen's Compensation Act of Colorado, Colo.Rev.Stat. §§ 8-40-101 through 8-66-112, employers have a publicly-imposed duty to compensate employees for work-related injuries, and employees have a statutory right to such compensation. Lathrop v. Entenmann's, Inc., 770 P.2d 1367, 1372 (Colo.App.1989). An employer's retaliation against an employee for his exercise of this statutory right gives rise to a common law tort claim by the employee. Id. at 1373; see also Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 108 (Colo.1992) (citing Lathrop with approval).
To assert a public policy-based common law claim for retaliatory discharge, a plaintiff must show: (1) that he was employed by the defendant; (2) that he was discharged; and (3) that he was
There is no dispute that Plaintiff has satisfied the first two elements. Thus, the only disputed issue is whether the Plaintiff's termination was causally connected to his filing a claim for workers' compensation benefits. Here, Plaintiff alleges that the Defendant's "tooth and nail" defense of the claim shows that Defendant was motivated to terminate him for retaliatory reasons. Specifically, Plaintiff asserts that (1) Defendant hired its own expert in defending against Plaintiff's workers' compensation claim; (2) Defendant's attorney, Petrock, refused to provide legal advice to Plaintiff regarding his claim; (3) Defendant refused to sign a letter stating that it would not contest Plaintiff's claim; and (4) Defendant refused to pay further medical and rehabilitation bills. (Doc. #20, ¶¶ 12, 13, 16, 21.) Although neither Colorado courts nor the Tenth Circuit have explicitly addressed this issue, other courts have come to the common-sense conclusion that an employer's good faith contestation of a discharged employee's claim does not establish discriminatory or retaliatory intent, because employers have the right to raise good-faith defenses against such claims. Furrer v. Campbell's Soup Co., 403 N.W.2d 658, 660 (Minn.Ct.App.1987) (citation and internal quotations omitted) (noting that the purpose of state anti-retaliation law
Plaintiff has not provided any evidence that the Defendant did not act in good faith in contesting his claim. Thus, the Court finds that Defendant's defense of Plaintiff's workers' compensation claim is not evidence of retaliation. Furthermore, the fact that Petrock did not provide
Plaintiff also points to two comments made by Corbin regarding his workers' compensation claim. The first was in February of 2011: Plaintiff testified that Corbin asked "how I was doing, how things were coming along. We discussed the fact again that, you know, filing a workman's comp claim and the cost incurred from that standpoint." (Doc. #20-1 at 207:2-5.) Plaintiff also testified that, on the day he was terminated, Corbin asked him "how I was doing and how that [workers' compensation] case was coming." (Id. at 205:13-17.) However, these ambiguous comments do not reveal any sort of animus towards the Plaintiff's workers' compensation case, and they fall well short of demonstrating that there was a causal connection between his claim and his termination.
Lastly, there is no temporal proximity between Plaintiff's filing of his workers' compensation claim on October 17, 2010 (Doc. #15-29), and his termination, more than five months later, on March 31, 2010 (Doc. #15-9). See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997) (three-month period of time between her protected activity and termination was insufficient to establish a causal connection for purposes of retaliation); Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir.1997) (four-month period between a plaintiff's participation in a protected activity and the alleged retaliatory action without more would be insufficient to support an inference of causation).
Thus, Plaintiff has not presented sufficient evidence to show that his filing of a workers' compensation claim was "causally connected to" his termination, Jackson, 92 Fed.Appx. at 588, and the Defendant is therefore entitled to summary judgment on this claim.
Plaintiff's final claim is that his due process rights were violated when Defendant terminated him without providing a hearing. The Fourteenth Amendment's Due Process Clause provides that no state shall "deprive any person of life, liberty or property, without due process of law." U.S. Const. amend. XIV, § 1. Determining whether a Plaintiff was denied procedural due process involves a two-step inquiry: (1) did the individual possess a protected interest to which due process protection was applicable?; and (2) was the individual afforded an appropriate level of process? See Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir.1998). Regarding the first step, "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property."
A public employee may possess a protected property interest in his employment if he has tenure, an explicit or implied contract for a fixed term of employment, or if state law allows for his dismissal only for cause or its equivalent. Darr v. Town of Telluride, 495 F.3d 1243, 1251 (10th Cir.2007); see also Dickey v. Adams Cnty. Sch. Dist. No. 50, 773 P.2d 585, 586 (Colo.App.1988) (citing cases). However, Plaintiff has not shown that any of these conditions existed here. In Colorado, absent one of these conditions, an employee is presumed to be employed at-will and can be terminated without cause or notice, and his termination does not give rise to a cause of action. Rooker v. Ouray Cnty., 841 F.Supp.2d 1212, 1217 (D.Colo. 2012) (citing Crawford Rehab. Servs., Inc. v. Weissman, 938 P.2d 540, 546 (Colo. 1997)).
Additionally, the Colorado Supreme Court has held that a terminated public employee may state a claim for relief for deprivation of property without due process of law "if rules or mutually explicit understandings, which the public employer was authorized to enact or make the basis of a binding agreement, create a sufficient expectancy of continued employment to give the employee a legitimate claim of entitlement." Adams Cnty. Sch. Dist. No. 50 v. Dickey, 791 P.2d 688, 695 (Colo.1990). "Courts addressing this issue have generally held that when state law recognizes that employee handbooks may form the basis of a contract action, the personnel policies and regulations in question determine whether the employee possessed a legitimate claim of entitlement under the due process clause." Id.; see also Workman v. Jordan, 32 F.3d 475, 479 (10th Cir.1994) (relying on provision in employee handbook stating that plaintiff could be terminated only "for cause" to conclude that plaintiff had an interest in his continued employment).
However, the Employee Manual here clearly did not create a contract, nor a "sufficient expectancy of continued employment," between the parties. Rather, the Employee Manual has a prominent at-will disclaimer providing that:
Additionally, Plaintiff does not provide evidence that, notwithstanding the clear at-will disclaimer in the Employee Manual, that the Board took any actions which created an expectation that he was not an at-will employee. In fact, he admitted in deposition testimony that he understood he was an at-will employee. (Doc. #20-2 at 168:9-169:15.) Accordingly, Plaintiff had no sufficient expectation of continued employment, and lacked any property interest that might flow from that expectation. Rooker, 841 F.Supp.2d at 1220 (holding that plaintiff did not have due-process-protected property interest, because he failed "to sufficiently plead a rule or other mutually explicit understanding, from the Manual or otherwise, bridling the reason for which he could be terminated and thereby creating a sufficient expectation of continued employment — the critical component here.... Without alleging such a bridle, Plaintiff was an at-will employee. Consequently, he lacked a property interest in his continued employment.").
The only property interest claimed here by Plaintiff, albeit obliquely, is his interest not to be terminated without a grievance or hearing procedure, as provided by in the Employee Manual. (Doc. #10, ¶ 43.) However, Plaintiff's claim fails, because "without a property interest in his continued employment ... a right to... procedure is exactly that — an entitlement to nothing but a procedure." Rooker, 841 F.Supp.2d at 1220. "[I]t is well established that `an entitlement to nothing but procedure' cannot `be the basis for a property interest.'" Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085 (10th Cir.2006) (quoting Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 764, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005)); see also Asbill v. Hous. Auth. of Choctaw Nation of Okla., 726 F.2d 1499, 1502 (10th Cir.1984) ("By themselves, ... procedural protections do not support a `legitimate claim of entitlement' to future employment."). This rule applies with equal force to procedural guarantees set forth in employee handbooks. Rooker, 841 F.Supp.2d at 1220; see also Bunger v. Univ. of Okla. Bd. of Regents, 95 F.3d 987, 990-91 (10th Cir.1996) (internal quotations and citations omitted) ("[employees] also contend that procedural guidelines in the Faculty Handbook effectively created a property interest in reappointment, of which they could be divested only according to the terms of the specified procedures. This tautological argument fails because it attempts to construct a property interest out of procedural timber.... The university's promise that it would follow certain steps in considering
Because Plaintiff has not shown that he had a property interest in his continued employment, summary judgment is appropriate on his procedural due process claim.
Based on the foregoing, it is ORDERED that Defendant's Motion for Summary Judgment (Doc. #15) is GRANTED.
It is FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE. The Final Trial Preparation Conference set for March 22, 2013, and the five-day Jury Trial set to commence on April 1, 2013, are VACATED.
It is FURTHER ORDERED that Defendant shall have its costs by the filing of a Bill of Costs with the Clerk of the Court within fourteen days of the entry of judgment. Each party shall bear its own attorneys' fees.
