Garcia v. Harrison School District No. 2

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant's Motion for Summary Judgment [Docket No. 42]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND^[1]

         This case arises out of plaintiff's employment with defendant Harrison School District No. 2 as principal of Monterey Elementary School. Plaintiff was hired as the principal of Monterey for the 2014-2015 school year. Docket No. 42 at 3, ¶ 1. On August 14, 2014, plaintiff fell from the bleachers at school and suffered injuries to her back and hips for which she filed a worker's compensation claim. Id., ¶ 4. Plaintiff's one-year contract was subsequently renewed for the 2015-2016 school year. Id. at 5, ¶ 18.

         In August 2015, plaintiff learned that she had the rheumatoid arthritis factor. Id., ¶ 20; Docket No. 44 at 5, ¶ 20; Docket No. 47 at 2, ¶ 20. She was formally diagnosed with rheumatoid arthritis in January 2016. Docket No. 42 at 5, ¶ 20. On August 25, 2015, plaintiff was taken from the school in an ambulance because she was lightheaded, feeling nauseous, having heart palpitations, and experiencing high blood pressure. Docket No. 44 at 10, ¶ 11. Plaintiff did not know the cause of her symptoms. Docket No. 42 at 6, ¶ 23. On August 26 and August 27, 2015, plaintiff was absent from work. Docket No. 42 at 6, ¶ 24; Docket No. 44 at 6, ¶ 24. After returning to work on August 28, 2015, plaintiff took a second leave of absence from August 31, 2015 through September 4, 2015 for which she used paid medical leave. Docket No. 42 at 6, ¶¶ 25, 27; Docket No. 44 at 7, ¶ 27.^[2] Although plaintiff never requested FMLA leave, Docket No. 42 at 7, ¶ 32, she gave defendant a doctor's note stating that she was “unable to work” between August 31 and September 4, 2015. Docket No. 44 at 9, ¶ 2.^[3]Upon returning to work on September 8, 2015, plaintiff was placed on paid administrative leave, effective immediately, and informed that the superintendent - Andre Spencer - would recommend to the board that plaintiff not be rehired for the following academic year. Docket No. 42 at 8, ¶ 36; Docket No. 44 at 9, ¶ 6; Docket No. 42-12.^[4] Plaintiff remained on paid administrative leave through the end of her employment contract, which expired on June 30, 2016. Docket No. 42 at 8, ¶ 37.^[5]

         On January 27, 2017, plaintiff filed this lawsuit asserting claims for disability discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., interference with her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., and retaliation under the ADA and FMLA. See Docket No. 1. On March 28, 2017, defendant moved to dismiss the lawsuit under Fed.R.Civ.P. 12(b)(6). Docket No. 12. While that motion was pending, the parties stipulated to the dismissal of plaintiff's ADA discrimination claim with prejudice. Docket No. 41. On January 30, 2018, defendant moved for summary judgment on plaintiff's remaining claims. Docket No. 42.

         II. LEGAL STANDARD

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 when 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115. When considering a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.

         III. ANALYSIS

         A. ADA Retaliation

         Plaintiff asserts that defendant retaliated against her in violation of the ADA by placing her on paid administrative leave and declining to renew her employment after she took two medical leaves of absence in August 2015. See Docket No. 44 at 11-12, 15.

         The ADA's retaliation provision states that “[n]o 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.” 42 U.S.C. § 12203(a). Where, as in this case, a plaintiff relies on circumstantial evidence to demonstrate retaliation, courts apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007). Under that framework, a plaintiff must first allege sufficient facts to state a prima facie case of retaliation. Id. Once that case is established, the burden shifts to the employer to proffer a legitimate, non-discriminatory reason for the adverse employment action. Id. If the employer satisfies this burden, a plaintiff must show that the employer's proffered justification is a “pretext masking discriminatory animus.” Id. (internal quotation marks omitted).

         To establish a prima facie case of retaliation under the ADA, a plaintiff must show that: (1) she “engaged in protected activity”; (2) she “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 v. Mountain Coal Co., LLC, 830 F.3d 1178, 1187 (10th Cir. 2016) (internal quotation marks and brackets omitted).

         “Activity protected from retaliation under the ADA includes not only bringing or participating in formal actions to enforce ADA rights, but also informal activity such as requesting an accommodation for a disability.” Fieni v. Franciscan Care Ctr., 2011 WL 4543996, at *7 (E.D. Pa. Sept. 30, 2011) (citing Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003)); see also Foster, 830 F.3d at 1188 (recognizing “that a request for accommodation can constitute protected activity supporting a retaliation claim”). Moreover, “it is well-settled that a request for leave may lead to a ‘reasonable' accommodation” by “allow[ing] an employee sufficient time to recover from an injury or illness such that the employee can perform the essential functions of the job.” Punt v. Kelly Servs., 862 F.3d 1040, 1051 (10th Cir. 2017); see also Robert v. Bd. of Cty. Comm'rs of Brown Cty., Kan., 691 F.3d 1211, 1217-18 (10th Cir. 2012) (stating that “a brief leave of absence for medical treatment or recovery can be a reasonable accommodation”). While a plaintiff asserting a retaliation claim based on the act of requesting or taking leave as a reasonable accommodation need not show that she had an actual disability to establish a prima facie case, she must demonstrate that she had a “reasonable, good faith belief” that she was engaging in protected activity. Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001). The Court finds that plaintiff has not met this requirement.

         The ADA's implementing regulations define “disability” as “[a] physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 29 C.F.R. § 1630.2(g). A “physical or mental impairment” includes “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), ...