United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Stewart United States District Judge.
matter is before the Court on Defendant's Motion for
Summary Judgment. For the reasons discussed below, the Court
will grant the Motion.
was first hired by Defendant in 2008. Plaintiff was
terminated within 90 days for tardiness and
theft. Plaintiff began working for Defendant
again beginning in 2011. During the ski season, Plaintiff
worked in the Tram and Lifts Department. In late 2012,
Plaintiff suffered a back injury. On December 10, 2012,
Plaintiff's doctor released her to return to work on
light duty, with restrictions on lifting and shoveling.
2, 2013, Plaintiff informed her supervisor that she had an
outpatient medical procedure, but was cleared to return to
work under the same restrictions. That is, no heavy lifting.
Around this same time, Plaintiff was hired to work at the
Forklift Restaurant at Snowbird during the summer months.
Plaintiff was hired as either a wait person or a
August 25 and 26, 2013, Plaintiff was scheduled to work as a
busser. When Plaintiff started her shift on August 25, 2013,
she clocked in as a server. When informed that she was
working as a busser, she clocked out as a server. Plaintiff
then clocked back in as a Festival Server. Plaintiff asserts
that this was the only other option available to her on the
computer system. Plaintiff did not inform her manager that
she could not clock in as a busser and there is evidence that
it would have been easy for this situation to be
remedied. It is undisputed that Festival Servers do
not work at the Forklift and are paid at a higher rate than
bussers. That day, Plaintiff limited her “lifting and
worked with the other Busser to fill in and stay on task in
next day, Plaintiff again clocked in as a Festival Server,
though she was scheduled as a busser. Plaintiff vented to a
coworker that she “had to clock in under Festival
Worker and maybe they [management] wouldn't
notice.” Early in her shift, Plaintiff experienced
pain in her back and then cut her hand on a broken glass.
Plaintiff left the restaurant and went to the employee
smoking area to regain her composure.
was then approached by her supervisor and Plaintiff explained
that she was physically incapable of working as a busser. At
that point, Plaintiff was instructed to go home and her pay
would be adjusted accordingly. Instead of going home,
Plaintiff spent the rest of the day working in the Tram and
Lifts Department. That evening, Plaintiff was contacted by
the manager of the Forklift, who stated that Plaintiff was
insubordinate and had attempted to defraud Defendant by
clocking in as a Festival Server to receive more pay.
was placed on suspension pending termination and was given
the opportunity to grieve her dismissal and no rehire status.
Plaintiff did file a grievance, but was ultimately terminated
after Defendant reviewed Plaintiff's past
history. Defendant's termination letter
referenced the events of August 25 and 26, stating that they
“have given us reason to believe you advertently
clocked in at a higher rate of pay.” Clocking in at
the wrong position to get more money is considered by
Snowbird to be a falsification of time records or time cards
and can result in termination. Plaintiff denies this was her
SUMMARY JUDGMENT STANDARD
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of
law.” In considering whether a genuine dispute
of material fact exists, the Court determines whether a
reasonable jury could return a verdict for the nonmoving
party in the face of all the evidence
presented. The Court is required to construe all
facts and reasonable inferences in the light most favorable
to the nonmoving party.
brings claims under the Americans with Disabilities Act
(“ADA”) for discrimination and retaliation. The
Court will discuss each claim in turn.
under the ADA encompasses three types of discrimination:
disparate treatment, failure to accommodate, and disparate
impact. Plaintiff brings claims for disparate
treatment and failure to accommodate. “Where, as here,
an ADA plaintiff seeks to proceed to trial exclusively on the
basis of circumstantial evidence of discrimination, [the
Tenth Circuit has] held that ‘the analytical framework
first articulated in' McDonnell Douglas . . .
controls our analysis.” Under that framework,
Plaintiff must first establish a prima facie case of
discrimination. If a plaintiff establishes a prima facie
case of discrimination, the burden then shifts to the
defendant to articulate a legitimate, non-discriminatory
reason for the adverse employment action. Once the
defendant articulates a legitimate, non-discriminatory reason
for its action, the burden shifts back to the plaintiff to
prove, by a preponderance of the evidence, that the
defendant's reasons are pretextual.
establish a prima facie case of discrimination, a plaintiff
must show that: (1) she is disabled; (2) she is qualified
with or without a reasonable accommodation to perform the
essential functions of her job; and (3) her employer
discriminated against her because of her
cannot establish a prima facie case for two reasons. First,
she is not disabled under the ADA. Second, she has not shown
that she was terminated because of her disability.
person is “disabled” under the ADA if she has
“a physical or mental impairment that substantially
limits one or more major life
activities.” “To satisfy this definition, a
plaintiff must (1) have a recognized impairment, (2) identify
one or more appropriate major life activities, and (3) show
the impairment substantially limits one or more of those
claims that her back injury limits her ability to
lift. The parties do not appear to dispute
that Plaintiff has a back injury. Further, lifting is a major
life activity. Therefore, the Court finds that
Plaintiff has met the first two requirements. Thus, Plaintiff
must show that her impairment substantially limits the major
life activity of lifting.
impairment substantially limits a major life activity
“if it substantially limits the ability of an
individual to perform a major life activity as compared to
most people in the general population.” Where an
impairment is not substantially limiting on its face, the
Tenth Circuit requires a plaintiff to “produce
comparative evidence from which a reasonable ...