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Collard v. Weir Slurry Group, Inc.

United States District Court, D. Utah

August 11, 2017

KAYLEEN COLLARD, Plaintiff,
v.
WEIR SLURRY GROUP, INC., d/b/a WEIR MINERALS LINATEX, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART [16] DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          DAVID NUFFER UNITED STATES DISTRICT JUDGE

         Kayleen Collard[1] has sued her former employer, Weir Slurry Group, Inc., d/b/a Weir Minerals Linatex (“Weir”), [2] alleging claims of disability discrimination in violation of the Americans with Disabilities Act (“ADA”) and gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).[3] Ms. Collard worked as a chemist for Weir, a rubber product design and manufacturing company, for about two and a half years.[4] She claims in this action that Weir discriminated against her based on her disabilities and also subjected her to hostile environment sexual harassment.[5] Weir moved for summary judgment to dismiss Collard's claims (the “Motion”).[6] Collard opposed the Motion (“Opposition”), [7] and Weir responded to the Opposition (“Reply”).[8]

         Weir makes two general arguments in favor of summary judgment. First, Weir contends that Collard's entire Complaint must be dismissed because Collard released Weir from the claims in a settlement agreement (the “Settlement Agreement”). The Settlement Agreement, which included a mutual release (the “Release”), resolved a separate state court action by Weir against Collard for trade secret misappropriation and related claims (the “Trade Secret Action”). Second, Weir argues in the alternative that Collard's ADA claim and any disparate treatment portion of her gender discrimination claim should be dismissed for lack of merit on the undisputed facts. Weir's Motion does not attack Collard's claims for hostile environment sexual harassment.

         The Motion is DENIED IN PART and GRANTED IN PART. The Settlement Agreement does not apply to Collard's claims in this action, and therefore the Motion based on release (which Weir describes as “waiver”) is denied. Partial summary judgment is proper because the undisputed facts show that Collard was not terminated for ADA discrimination as a matter of law. The partial summary judgment, however, does not resolve Collard's claims for hostile environment sexual harassment.

         Table of Contents

         Summary Judgment Standard ......................................................................................................... 3

         Undisputed Material Facts .............................................................................................................. 4

         The Employment Relationship ........................................................................................... 4

         Collard's Disability and Accommodation Requests ........................................................... 5

         Weir's Discipline of Collard Before Termination .............................................................. 7

         Termination for Email Forwarding ..................................................................................... 8

         State Court Trade Secret Suit and Settlement Agreement .................................................. 9

         Discussion ..................................................................................................................................... 11

         Collard Did Not Release Her Discrimination Claims When Settling the Separate Trade Secret Action. . ....................................................................................................... 12

         Collard's ADA Discrimination Claim Fails as a Matter of Law. . .................................... 15

         Collard Has Established a Prima Facie Case of Discrimination. . ......................... 16

         Weir Has Shown Non-discriminatory Reasons for Its Adverse Employment Actions. . .................................................................................................... 18

         Collard Has Not Created a Genuine Issue of Material Fact as to Pretext. . ........... 20

         Collard's Sexual Harassment Claim Is Not Dismissed on Summary Judgment. . ............ 22

         Order ........................................................................................................................................... 25

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[9] “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”[10] A factual dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[11] In determining whether there is a genuine dispute as to material fact, the court should “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.”[12] “As to materiality, the substantive law will identify which facts are material.”[13]“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”[14] “Factual disputes that are irrelevant or unnecessary will not be counted.”[15]

         UNDISPUTED MATERIAL FACTS[16]

         The Employment Relationship

         1. Weir develops, designs, and manufactures rubber-related products and provides related services.[17]

         2. On August 25, 2011, Weir offered Collard a job as a chemist in its Salt Lake City facility.[18]

         3. Collard started her employment with Weir on October 3, 2011.[19]

         4. As a chemist, Collard reported to the Engineering Manager/Director.[20]

         5. When she started, Collard's supervisor was David Timm. In the Spring of 2013, Tham Siew Meng became her supervisor.[21]

         Collard's Disability and Accommodation Requests

         6. Prior to commencing employment with Weir, Collard informed both Timm and Human Resources Manager Julene Persinger that she required accommodation for a disability.[22]

         7. After conversations with Collard, Weir granted her permission to use a parking space close to the building until Collard got a parking pass for the designated accessible parking spot at Weir's facility.[23]

         8. Weir agreed to limit Collard's work-related travel.[24]

         9. Weir made concessions to Collard by excusing her from climbing stairs and wearing steel-toed shoes as personal protective equipment.[25]

         10. Collard was permitted to use a wheelchair at work.[26]

         11. Collard made a formal accommodation request in the spring of 2012, which set forth several proposed accommodations.[27]

         12. In that accommodation request, Collard identified her conditions as “[d]isabling nausea with cyclic vomiting syndrome, recurrent hiatal hernia, open thoracic surgery recovery- nissen fundopolication with infection, generalized anxiety disorder and dysautonomia.”[28]

         13. Collard claimed that these conditions resulted in her experiencing “some balance/coordination difficulties, weakness, violent nausea, pain, and fatigue.” She also asserted that these conditions limited her mobility and caused her to limp, walk slowly, or use a wheelchair. Finally, Collard explained that her symptoms were cyclical, and thus “the severity of these symptoms can vary from day to day.”[29]

         14. Collard requested the following accommodations:

a. Help from one other person to lift and open press molds;
b. Help from one other person to cut rubber;
c. Extra time for moving about the facility;
d. Limit on travel to U.S. flights of no more than four hours;
e. Parking on a flat area or help from one person to enter the facility;
f. Limit work hours to 40 per week; and
g. Flexible onsite attendance or remote access when severely sick.[30]

         15. Weir's personnel reviewed Collard's request and determined that some accommodations, like the limit on travel, were already in place, and others, like flexible onsite attendance, were unreasonable.[31]

         16. In the fall of 2013, Human Resources Manager Persinger asked Collard to resubmit an updated accommodation request.”[32]

         17. The proposed accommodations presented by Collard in 2013 were substantially the same as her spring 2012 requests.[33]

         18. On that basis, Weir determined that no new accommodations for Collard's disabilities were necessary.[34]

         Weir's Discipline of Collard Before Termination

         19. Collard received a written admonition for using her wheelchair to store and transport rubber, which Weir deemed “not an appropriate or safe use of [her] personal wheelchair.”[35]

         20. Weir issued a written admonition to Collard on December 30, 2013, warning her “regarding dishonesty and misuse of company email.”[36]

         21. Weir made the decision to issue the written admonition based on the conclusion[37]that Collard forwarded an email with some past-due work product attached on December 2, 2013 after manipulating the email to appear as if it were originally sent earlier than it was.[38]

         22. In February 2014, Collard was placed on paid administrative leave for insubordination.[39]

         23. Weir made the decision to put Collard on administrative leave after determining[40]that Collard was insubordinate to her supervisor, Tham Meng, in an incident where Meng requested information that Collard could not provide within the time he wanted, and the two of them argued.[41]

         Termination for Email Forwarding

         24. On Monday, March 10, 2016, Weir sent Collard a letter officially terminating her employment.[42]

         25. Weir made the decision to terminate Collard after determining[43] that Collard violated the company Confidentiality Agreement and employee policies, as well as concerns that she may have misappropriated confidential information and trade secrets.[44]

         26. Prior to her termination, Collard conceded that she had set up preferences on her company email to forward emails to her personal email account, although she denied being aware that her conduct violated company policy.[45]

         27. Persinger advised Collard of the findings of the internal investigation [into Collard's email use] and asked her to make available to a third party expert all of her personal technology devices (computer, smart phones, hard drives, USB flash drives, etc.) and email accounts, so that any intellectual property belonging to Weir could be retrieved and returned to Weir.[46]

         28. Collard was advised that if she refused to comply with this request Weir planned to file a lawsuit against her.[47]

         State Court Trade Secret Suit and Settlement Agreement

         29. On March 7, 2014, Weir filed a Verified Complaint in Utah state court (“Trade Secret Complaint”) in which it sought a temporary restraining order and injunctive relief against Collard.[48]

         30. The Trade Secret Complaint asserted causes of action against Collard for Breach of Contract, Misappropriation of Trade Secrets, Breach of Duty of Loyalty, and Violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.[49]

         31. Following the termination of Collard's employment, and after litigating the State Court Lawsuit for over a year, the parties entered into a Settlement Agreement and Mutual Release of Claims (“Settlement Agreement”)[50] “to avoid the expense and uncertainty of further litigation.”[51]

         32. Collard signed the Settlement Agreement on June 24, 2015.[52]

         33. At the time that she signed the Settlement Agreement, she had read the Settlement Agreement, understood it, and agreed to it.[53]

         34. The settlement negotiations involved back and forth discussions and revisions between Collard's attorneys and Weir's attorneys.[54]

         35. Collard had the opportunity to confer with her counsel concerning the negotiation of the Settlement Agreement.[55]

         36. As part of the Settlement Agreement, Collard entered into a mutual release of claims that provided, with respect to her claims against Weir, as follows:

[Collard], and her successors and assigns, forever releases Weir and its shareholders, members, principals, officers, managers, agents, attorneys, servants, employees, administrators, executors, insurers, successors, or assigns, from any and all claims, demands, or causes of action, at law or in equity, whether known or unknown, which [Collard] has asserted or could have asserted in the Lawsuit, including but not limited to claims for costs and attorney fees. This mutual release does not apply to the Discrimination Charge and UOSH Complaint, which are claims that [Collard] may continue to pursue.[56]

         37. The mutual release of claims also provided for Weir's release of claims in favor of Collard.[57]

         38. Weir also agreed, as part of the Settlement Agreement, to dismiss all remaining claims in the State Court Lawsuit with prejudice by filing an Order of Dismissal.[58]

         39. Through counsel, Collard negotiated two exceptions to the general release; namely, that Collard's general release did not apply to “the Discrimination Charge and the UOSH Complaint, which are claims that [Collard] may continue to pursue.”[59]

         40. “Discrimination Charge” is a defined term based on the following provision of the Settlement Agreement: “[Collard] has also filed a Charge of Discrimination against Weir, which is currently pending before the Equal Employment Opportunity Commission and Utah Antidiscrimination and Labor Division (the ‘Discrimination Charge').”[60]

         41. “UOSH Complaint” is also defined in the Settlement Agreement: “[Collard] has also filed a complaint against Weir with the Utah Occupational Safety and Health Division (the ‘UOSH Complaint').”[61]

         DISCUSSION

         Federal law provides certain protections against discrimination in the workplace. Two such protections are at issue in this case. First, the ADA outlaws discrimination against persons with disabilities.[62] Second, Title VII outlaws discrimination on the basis of gender, which has been interpreted to include sexual harassment.[63]

         Collard claims that, while working for Weir as a chemist, she faced discrimination for her disabilities, as well as sexual harassment.[64] Weir argues that Collard released her discrimination claims under a Settlement Agreement in a separate lawsuit, which included a mutual Release.[65]This argument is rejected because the terms of the Release do not apply to Collard's discrimination claims. In the alternative, Weir seeks partial summary judgment on “Collard's entire ADA claim and the disparate treatment portion [sic] of her Title VII claim.”[66] The undisputed material facts show that Collard's termination did not violate the ADA. Collard's sexual harassment claim is not based on disparate treatment but is a hostile environment claim, so Weir's summary judgment argument on that claim is rejected. Because Collard's hostile environment claim is not challenged by the Motion, her sexual harassment claim survives summary judgment.

         Collard Did Not Release Her Discrimination Claims When Settling the Separate Trade Secret Action.

         Weir and Collard have had other disputes that have been resolved outside of this action. Weir accused Collard of trade secret misappropriation because Collard allegedly set her work email account to forward messages with confidential and proprietary material to her personal email account.[67] Weir sued Collard in Utah state court, asserting claims for Breach of Contract, Misappropriation of Trade Secrets, Breach of Duty of Loyalty, and Violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.[68] The Trade Secret Action was resolved by a Settlement Agreement between the parties.[69] Under the Settlement Agreement, Collard agreed to return all confidential and proprietary information in her possession to Weir and stipulated to a permanent injunction restraining her from using or disclosing any of Weir's protected information.[70]

         Weir argues that the Release in the Settlement Agreement applies broadly enough to bar Collard's discrimination claims in this federal action. The Release provides: “[Collard], and her successors and assigns, forever releases Weir and [related entities], from any and all claims, demands, or causes of action, at law or in equity, whether known or unknown, which [Collard] has asserted or could have asserted in the Lawsuit, including but not limited to claims for costs and attorney fees.”[71] The Release uses broad terms such as “any and all claims” and “known or unknown, ” but limits the Release to ...


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