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Spencer v. Snowbird Resort LLC

United States District Court, D. Utah

May 17, 2017



          Ted Stewart United States District Judge.

         This matter is before the Court on Defendant's Motion for Summary Judgment. For the reasons discussed below, the Court will grant the Motion.

         I. BACKGROUND

         Plaintiff was first hired by Defendant in 2008. Plaintiff was terminated within 90 days for tardiness and theft.[1] 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.

         On June 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 server.[2]

         On 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.[3] 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 other ways.”[4]

         The 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.”[5] 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.

         Plaintiff 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.

         Plaintiff 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.[6] 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.”[7] 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.[8] Plaintiff denies this was her intent.


         Summary 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.”[9] 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.[10] The Court is required to construe all facts and reasonable inferences in the light most favorable to the nonmoving party.[11]


         Plaintiff brings claims under the Americans with Disabilities Act (“ADA”) for discrimination and retaliation. The Court will discuss each claim in turn.


         Discrimination under the ADA encompasses three types of discrimination: disparate treatment, failure to accommodate, and disparate impact.[12] 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.”[13] Under that framework, Plaintiff must first establish a prima facie case of discrimination.[14] 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.[15] 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.[16]

         1. Disparate Treatment

         To 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 disability.[17]

         Plaintiff 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.

         A person is “disabled” under the ADA if she has “a physical or mental impairment that substantially limits one or more major life activities.”[18] “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 activities.”[19]

         Plaintiff claims that her back injury limits her ability to lift.[20] The parties do not appear to dispute that Plaintiff has a back injury. Further, lifting is a major life activity.[21] 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.

         An 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.”[22] Where an impairment is not substantially limiting on its face, the Tenth Circuit requires a plaintiff to ‚Äúproduce comparative evidence from which a reasonable ...

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