Angell v. Fairmount Fire Protection DistrictAngell v. Fairmount Fire Protection District
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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.)
I. BACKGROUND
The following facts are undisputed, unless otherwise noted.
Plaintiff Don Angelí 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 oyer 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:
These guidelines are not a contract and impose no legally enforceable obligations on [District [sic]. All District employees are employed at will. Employees, or District, may terminate the employment relationship at any time, with or without prior notice, warning, procedure, or formality, for any reason or no reason .... The nature, terms or conditions of District employees’ employment cannot be changed by oral representation, custom, habit or practice, or any other writing. In the event of conflict between this disclaimer and any other statement, oral or written, present or future, concerning terms and conditions of employment, the at-will relationship confirmed by this disclaimer shall control.
(Doc. # 15-18 at 3.) Additionally, the Employee Manual provides a “Grievance Procedure,” which states:
If an employee is dissatisfied with their supervisor’s verbal decision [as to an employment action], the employee must submit the grievance in writing to the Fire Chief within seven business days from the date of the supervisor’s verbal decision. The Chief will investigate the grievance to the fullest extent and furnish a written decision to the employee within five business days after receipt of the grievance.
(Id. at 4.) Additionally, the Employee Manual states that “if any employee is not satisfied with the Chiefs written response to their grievance, the employee may appeal in writing to the Board within seven days from the date of the Chiefs written decision, with the employee’s agreement to appear personally before the Board to discuss the grievance.” (Id. at 4-5.)
II. STANDARD OF REVIEW
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,
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,
III. ANALYSIS
A. PLAINTIFF’S AMERICANS WITH DISABILITIES ACT (“ADA”) CLAIM
The ADA prohibits discrimination against a “qualified individual with a disability on the basis of the disability.” Valdez v. McGill,
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,
1. Whether Plaintiff Was Disabled Under the Americans With Disabilities Amendments Act (“ADAAA”)
The ADA defines the terra “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.,
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 Plaintiffs cancer is a disability for purposes of the ADAAA, even when the cancer is in remission. See Norton v. Assisted Living Concepts, Inc.,
2. Whether Plaintiff Was Qualified to Perform the Essential Functions of His Job . ,
In its Motion for Summary Judgment, Defendant does not • dispute Plaintiffs 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 Plaintiffs “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,
3. Whether Defendant Discriminated Against Plaintiff Because of His Disability
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.,
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 Plaintiffs 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 Plaintiffs 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.,
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.
4. Whether Defendant’s Legitimate, Nondiscriminatory Reason for Plaintiffs Termination Was Pretextual.
Even assuming that Plaintiff established a prima facie case, the Defendant here has alleged a legitimate, nondiscriminatory reason for Plaintiffs termination, and Plaintiff has not shown that the Defendant’s reason is pretextual., See Selenke v. Med. Imaging of Colo.,
Here, Plaintiff argues that Defendant’s justifications for Plaintiffs 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 Plaintiffs termination. Plaintiff points to three sources of arguable inconsistencies in Defendant’s explanations:
• First, in its March 31, 2011 letter, Defendant stated that Plaintiff was terminated because “the Board of Directors found that you entered into a contract without formal Board approval. This action has resulted in an approximately $200,000.00 loss ... This loss has placed FFPD and our community in a position of ‘lack oftrust’ in your leadership and guidance.” (Doc. #15-9.)
• Second, Board Member Corbin’s testimony:
• Corbin testified that Plaintiff was terminated because he “had entered into a contract without formal Board approval and cost the taxpayers about $200,000.” (Doc. #20-8 at 26:25-27:3.)
• When asked, hypothetically, if the contract had made money, whether Plaintiff would have still lost his job, Corbin responded “No.... [Because] [t]here was no contract.” (Id. at 27:4-9.) Corbin then explained that the Board only became aware of the fact there was no contract in March of 2011, and that “[Plaintiff] was supposed to have a contract that outlined the details of the work to be provided by Fair-mount Fire, and he was supposed to get with Mr. Petrock to formulate that contract, and he did not do that.” (Id. at 27:14-23.)
• Third, Mark Herblan, another Board member, was asked at his deposition whether “Mr. Angelí [was] terminated because this particular project lost significant amounts of district taxpayer funds?” (Doc. #20-10 at 27:12-28:4.) Herblan responded:
No. That — that was not the reason. The reason ... that he was terminated, was [his] failure to proceed, create the contract/agreement that he indicated to us he would produce with [Mr. Petrock’s cooperation], and to be able to present that to the Board for review and subsequent approval. That never took place. Mr. Angelí apparently took it upon himself, without a signed agreement, contract, certainly with no Board approval, to enter into this agreement with Up In Smoke, again, resulting in the loss to the District in excess of a quarter of a million dollars, and leaving us without the legal teeth to pursue payment. (Id.)
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 Plaintiffs 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, Cor-bin and Herblan’s statements — that the failure to obtain a contract was the central cause of Plaintiffs 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,
B. PLAINTIFF’S RETALIATION 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.,
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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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.,
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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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.,
Thus, Plaintiff has not presented sufficient evidence to show that his filing of a workers’ compensation claim was “causally connected to” his termination, Jackson,
C. PLAINTIFF’S PROCEDURAL DUE PROCESS CLAIM
Plaintiffs 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. XTV, § 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,
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,
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,
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:
These guidelines are not a contract and impose no legally enforceable obligations on [District [sic]. All District employees are employed at will. Employees, or District, may terminate the employment relationship at any time, with or without prior notice, warning, procedure, or formality, for any reason or no reason ... The nature, terms or conditions of District employees’ employment cannot be changed by oral representation, custom, habit or practice, or any other writing. In the event of conflict between this disclaimer and any other statement, oral or written, present or future, concerning terms and conditions of employment, the at-will relationship confirmed by this disclaimer shall control.
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, Plaintiffs 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,
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.
IV. CONCLUSION
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.
Notes
. The parties dispute whether Plaintiff actually provided Petrock with the information relating to the possible agreement with UIS, including one page of "general contract terms for the project.” (Compare Doc. # 15, ¶¶ 5-6 with Doc. # 20 at 3-7; see also Doc. # 20-7.) In any case, it is undisputed that an official, binding contract was never signed by UIS and FFPD. (Doc. # 15, ¶ 6; 15-4 at 2.)
. Plaintiff disputes this fact and submits that "staff member Russ Lewis testified that payments were received [from UIS] ... in previous years,” and cites to page 115 of Lewis' deposition in support of this proposition. (Doc. # 20 at 9.) However, Plaintiff did not submit this page in its exhibit materials; as such, the fact remains undisputed.
. Plaintiff's affidavit does not specify when this exchange between Plaintiff and Corbin occurred, but his affidavit indicates that it was when he returned to work after his first surgery. (Doc. # 20-2, ¶ 13.) Elsewhere, Plaintiff alleges that his first cancer surgery occurred in November of 2010. (Doc. # 20-2, ¶ 7.) However, Corbin's deposition indicates that this comment from Corbin regarding emergency calls occurred in February of 2011 (Doc. #20-26 at 3), and Plaintiff’s Opposition Brief cites to Corbin’s deposition as proof the comment was made (Doc. # 20, ¶ 9).
. It is unclear whether Plaintiff actually followed this direction to stop responding to emergency calls; in any case, it is uncontested that he continued working, and performing his job duties in at least some fashion until he was terminated.
. Defendant also submitted an audio recording of this meeting, which the Court has reviewed.
. Here, Plaintiff alleges he was "disabled” under both (A) and (C) — the "impairment” prong and the "regarded as” prong. However, because Plaintiff provides sufficient evidence that he was actually impaired due to his cancer, the Court need not examine whether he also meets the "regarded as” prong.
. See also 29 C.F.R. § 1630.4, App. (“We hope this will be an important signal to both lawyers and courts to spend less time and energy on the minutia of an individual's impairment, and more time and energy on the merits of the case — including whether discrimination occurred because of the disability ....”) (internal quotation omitted.)
. "The authority to issue regulations granted to the Equal Employment Opportunity Commission ... under this Act includes the authority to issue regulations implementing the definitions of disability ... consistent with the ADA Amendments Act of 2008.” 42 U.S.C. § 12205a.
. "[R]eply briefs reply to arguments made in the response brief — they do not provide the moving party with a new opportunity to present yet another issue for the court’s consideratíon.” Home Design Services, Inc. v. B & B Custom Homes,
. Plaintiff did not provide an exact date for when Corbin told him he could not answer emergency calls, and as described in note 3, supra, it is unclear when this exchange occurred. However, viewing the evidence in the light most favorable to Plaintiff, the Court assumes that the comment occurred on February 28, 2011 (rather than in November of 2010).
. It is unknown when, exactly, Plaintiff notified Defendant of his cancer diagnosis, which he alleges he received sometime in September of 2010. (Doc. #15, ¶ 15.) However, Plaintiff filed a workers' compensation claim relating to his cancer on October 17, 2010 (Doc. # 15-29), effectively giving Defendant notice, at the latest, as of that date.
. Both parties agree that a “deployment-type” basis meant that the FFPD would deploy firefighters and equipment, and send an invoice to UIS after performing the work, rather than having an ex ante contract. (Doc. ##20, ¶ 28; 26, ¶ 5.10.)
. Plaintiff also points to his own performance record as evidence of pretext. For example, Plaintiff points to the fact that he earned $205,000 in profits for FFPD in the same year he was terminated, even after the UIS losses were factored in to the FFPD's budget; he also states that he had been the fire chief for ten years and had (in his own estimation) done an “outstanding” job. (Doc. # 20, ¶¶ 1, 24.) However, Plaintiff submitted no independent evidence of his job performance, and “[a]n employee’s own opinions ... about his or her qualifications do not establish a material factual dispute on the issue of pretext.” Webb v. Level 3 Commc’ns, LLC,
. Plaintiff also alleges violations of “the parallel Colorado Anti-Discrimination Law” (Doc. # 10 at 6) — presumably, Colo.Rev.Stat. § 24-34-402 — which prohibits employment discrimination, in relevant part, "because of disability.” However, Colorado and federal law apply the same standards to discrimination claims, such that the claims “rise or fall” together. See Colo. Civil Rights Comm'n v. Big O Tires, Inc.,
. Colorado does not have a similar law preventing retaliation by employers; rather, it provides employees with a common-law tort remedy for retaliation. Lathrop,
. “The liberty interest that due process protects includes the individual's freedom to earn a living.” Lentsch v. Marshall,