United States Court of Appeals
May 3, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
WALTER WATSON, No. 09-4207
C.R. ENGLAND, INC.,
Appellant, No. 09-4217
C.R. ENGLAND, INC.,
Appeal from the United States District Court for the District of Utah
(D.C. No. 2:06-CV-00811-BSJ)
Anne Noel Occhialino (James L. Lee, Deputy General Counsel, Lorraine C.
Davis, Acting Associate General Counsel, P. David Lopez, General Counsel, with
her on the briefs), Equal Employment Opportunity Commission, Office of General
Counsel Appellate Service, Washington, D.C., for Plaintiff-Appellant.
Russell T. Monahan, Cook & Monahan, Salt Lake City, Utah, for Intervenor-
Scott A. Hagen (Michael E. Blue, with him on the briefs), Ray Quinney &
Nebeker P.C., Salt Lake City, Utah, for Defendant-Appellee. Before KELLY, EBEL, and HOLMES, Circuit Judges. HOLMES, Circuit Judge.
Plaintiff-Appellant Equal Employment Opportunity Commission (?EEOC?)
initiated this suit against Defendant-Appellee C.R. England, Inc. (?C.R.
England?) under the Americans with Disabilities Act of 1990 (?ADA?), 42 U.S.C.
¬§¬§ 12101?213. The alleged ADA violations arise from the employment
relationship between C.R. England and Walter Watson, a former driver and
trainer for the company. Mr. Watson subsequently intervened in the suit, alleging
similar claims under the ADA and additional claims under Utah state law. The
[End Page 2]
district court granted summary judgment in favor of C.R. England on all claims
and disposed of the case. This appeal followed. Exercising jurisdiction under 28
U.S.C. ¬§ 1291, we affirm the district court's grant of summary judgment on all
Walter Watson was diagnosed with Human Immunodeficiency Virus
(?HIV?) in 1999. In November 2002, Mr. Watson began working as a truck
driver for C.R. England, a company based out of Salt Lake City. Shortly after his
employment began, Mr. Watson voluntarily informed C.R. England's human
resources manager, Carrie Johansen, that he was HIV positive. 1 In December
2002, Mr. Watson entered into an independent contractor operating agreement
(?ICOA?) with C.R. England, under which his status changed from that of an
employee driver to an independent-contractor driver. 2 On that same day, Mr.
The voluntary disclosure of Mr. Watson's illness to Ms. Johansen
occurred after a ?team drive? that Mr. Watson took with Alan Franklin, another
C.R. England driver. Due to an incident that occurred between the two men, Mr.
Watson had refused to complete the drive and had been left in Las Vegas. After
returning to Salt Lake City, he informed Ms. Johansen about his HIV-positive status. Mr. Watson stated that Ms. Johansen told him that the disclosure would
remain confidential, and that he only offered the information because he believed
that Mr. Franklin had already disclosed his illness to the company. Although
there is some disagreement regarding exactly how the information was offered,
there is no evidence that C.R. England elicited the information, and Mr. Watson
does not dispute that he voluntarily disclosed his illness to the company.
The relevant terms of the ICOA, as described by the district court,
are as follows:
[End Page 3]
Watson signed a Vehicle Lease Agreement (?Lease Agreement?), under which he
leased a truck from Opportunity Leasing, Inc., a sister company of C.R. England.
After working for C.R. England under the ICOA for a few months, Mr.
Watson decided to become a driver-trainer for the company. In order to become a
trainer, Mr. Watson completed C.R. England's five-day ?Train-the-Trainer?
course in February 2003. On the first day of training, Mr. Watson was called into
The ICOA allows drivers to ?refuse any specific shipment
offered by [England] as long as, in [England?s] reasonable
judgment, [it is] nonetheless able to meet the needs of [its]
customers.? The ICOA does not require the driver to rent any
products or equipment from England. The ICOA states that a
driver's relationship with England ?is subject to government
regulation,? and it lists a driver's responsibilities in meeting
those regulations. The ICOA makes drivers responsible for
determining how to provide England with services, including
selecting workers, securing equipment, selecting routes, and
scheduling work hours. Additionally, the ICOA disclaims
England's liability for damage to a driver's equipment and
requires drivers to indemnify and hold England harmless from
any claim that arises out of a driver's negligence, gross
negligence, willful misconduct, or other culpable acts. Both
England and a driver governed by the ICOA may terminate the
agreement for any reason by giving 30 days? written notice. As
a driver governed by the ICOA, Watson was not entitled to
medical benefits or a retirement plan from England. Consistent
with applicable federal regulations, Watson could use his truck
to transport freight for another carrier by obtaining England?s
consent to sublease equipment to the other carrier, or he could
simply transport it using the other carrier's truck.
EEOC v. C.R. England, Inc., No. 2:06-CV-00811BSJ, slip op. at 3?4 (D. Utah
Sept. 17, 2009) (alterations in original) (citations omitted).
[End Page 4]
Ms. Johansen's office. She expressed concern about his ability to become a
trainer in light of his HIV-positive status. Later that same day, Mr. Watson and
Ms. Johansen met with C.R. England's general counsel, Nelson Hayes, to further
discuss Mr. Watson's status as a trainer. Mr. Watson, Ms. Johansen, and Mr.
Hayes met again one or two days later to discuss C.R. England's concerns about
Mr. Watson's role as a trainer and possible courses of action that might assuage
its concerns. During the second meeting, Mr. Hayes broached the idea of
disclosing Mr. Watson's HIV-positive status to potential trainees and asked Mr.
Watson if he had any thoughts or ideas as to how this could be done. In response,
Mr. Watson suggested drawing up some sort of form that could be given to
The end result of these meetings was an acknowledgment form, drafted by
Mr. Hayes, which informed a potential trainee that his trainer was HIV-positive,
but did not reveal Mr. Watson's identity. Specifically, the form read:
Trainee hereby specifically acknowledges that he/she has
been fully informed that his/her Trainer suffers from a
communicable health condition (HIV).
Trainee agrees to fully inform himself/herself on the
condition (HIV), including avoidance of communication of the
disease. Trainee further agrees to keep confidential any and all
information relating to Trainer's condition, except as required to
protect the health and welfare of any person.
EEOC App. at 398 (Acknowledgment and Agreement Form, dated Feb. 7, 2003).
C.R. England contemplated that potential trainees would sign the
[End Page 5]
acknowledgment form before they began training with Mr. Watson. Mr. Watson
never objected to the disclosure of his HIV status or to the use of the
Mr. Watson's first and only potential trainee, Eddie Seastrunk, 3 was
presented with the form and signed it without protest on February 7, 2003. The
form was not shown to any other potential trainee.
On February 11, 2003, before he left on his first training assignment, Mr.
Watson requested ?home time? beginning February 16, 2003, and ending February
18, 2003. The stated reason for his request for time off was ?family time.?
EEOC App. at 1035 (Home Time Request, dated Feb. 11, 2003). When C.R.
England denied Mr. Watson's request because he had not given the required two-
weeks notice, Mr. Watson responded: ?OK, just when ava[i]lable.? Id. at
On February 12, 2003, Mr. Watson and Mr. Seastrunk were dispatched on
their first drive together, delivering a load to Omaha, Nebraska. After they
delivered the initial load, Mr. Watson and Mr. Seastrunk were sent to pick up a
second load in Omaha, but the second load was canceled while they were en
route. The two men were sent to pick up yet another load in the Omaha area
within minutes, but that load was also quickly canceled, and they were then
The district court, EEOC, and C.R. England refer to the trainee as
?Eddie Seastrunk,? while Mr. Watson refers to him as ?Eddie Seastruck.?
[End Page 6]
dispatched to pick up the second, previously canceled load. C.R. England
employee Christie Wakeland testified that this series of events was not unusual
for this part of the country, noting that load cancellations ?happen[ed] very
frequently? and that this type of occurrence ?wasn?t out of the ordinary at all.?
EEOC App. at 403 (Dep. of Christie Wakeland, dated July 25, 2007).
This series of dispatches and the subsequent cancellations that occurred left
Mr. Watson feeling stressed and distraught. In response to the final cancellation,
Mr. Watson demanded that he be given immediate ?home time,? and stated that he
could ?not wait two more weeks.? EEOC App. at 426. 4 C.R. England's driver
manager, Cynthia Horsley, refused his request because she ?ha[d] to have 2 weeks
notice?; however, she did tell Mr. Watson that if he ?want[ed] to re-submit [his]
hometime for the 2 week time frame, [she] w[ould] do what [she] c[ould] to get
[him] there as close to that request as [she] c[ould].? Id. at 427. Mr. Watson then
refused the load, demanded that his trainee be reassigned, and stated that he was
?deadheading? (i.e., driving with an empty truck) to his family home in Florida,
despite the denial of his home time request. Id. at 428. In explaining his
immediate departure, Mr. Watson stated that he couldn?t handle the ?stress level?
anymore, and that he needed to go to Florida because that is where his doctor was
The communication between Mr. Watson and C.R. England occurred
through a series of written messages transmitted over a ?Qualcomm? satellite
messaging system, which was installed in Mr. Watson's truck.
[End Page 7]
located and he ?[needed] to see [his] Dr.? Id. Ms. Horsley then responded: ?ok[,]
pls [sic] leave [E]ddie [Seastrunk] at the [truck stop] and I will get him picked
up.? Id. at 429. Mr. Watson deadheaded to Florida that same day.
Due to these occurrences, Mr. Watson was terminated from his trainer
position on February 14, 2003. The stated reasons for the termination were that
(1) Mr. Watson ?sat up with his student and burned up [his] h[ou]rs,? and
therefore was unable to drive when he was needed 5; (2) he ?refused a load,?
which he was not permitted to do as a trainer; and (3) he ?deadheaded . . . over
1000 miles home.? Id. at 432. At this time, Mr. Watson was still a driver for
C.R. England under the ICOA.
Mr. Watson remained in Florida with his leased truck from mid-February
until early March 2003?a period of more than two weeks. During that time, Mr.
Under the applicable U.S. Department of Transportation (?DOT?)
regulations, drivers were ?restricted from operating trucks beyond a certain
number of hours in a 24-hour period.? C.R. England Br., No. 09-4207, at 11 n.4.
More specifically, they were ?restricted from operating trucks beyond 11 hours
after 10 hours of rest.? C.R. England Br., No. 09-4217, at 12 n.4. Furthermore,
C.R. England's trainees were prohibited from driving during certain times of the
day. Within these constraints, C.R. England required a trainer and his trainee to
drive 1000 miles per day. See EEOC App. at 135 (Dep. of Cynthia Horsley, dated
Dec. 14, 2007). C.R. England assigned the responsibility to the trainer for
allocating the driving hours between the trainer and the trainee to ensure that the
1000-mile daily requirement was satisfied. C.R. England took the position that,
by staying awake with his trainee (i.e., ?s[itting] up with his student,? EEOC App.
at 432) when he should have been resting, Mr. Watson limited his ability?given
the foregoing time constraints?to contribute driving hours to the 1000-mile
[End Page 8]
Watson did not accept any new loads, generated no income, and failed to make
his weekly lease payments on his truck. C.R. England attempted to contact Mr.
Watson on at least two occasions during this period in order to determine what
Mr. Watson's intentions were with regard to his ICOA and Lease Agreement, but
received no response. On March 4, 2003, C.R. England terminated Mr. Watson?s
Lease Agreement, and Opportunity Leasing repossessed his truck. At that time,
Mr. Watson owed approximately $3000 under the Lease Agreement. C.R.
England eventually sent his debt to a collection agency.
In August 2003, Mr. Watson filed a formal complaint with the EEOC,
alleging that C.R. England discriminated and retaliated against him because of his
illness. The EEOC issued a determination regarding Mr. Watson's complaint in
September 2004, concluding that C.R. England had violated Mr. Watson's rights
under the ADA. In September 2006, EEOC initiated the instant suit by filing a
complaint in the United States District Court for the District of Utah, asserting
that C.R. England had violated the ADA by (1) ?[d]isclosing and requiring Mr.
Watson to disclose medical information concerning his disability, in writing, to
driver trainees before they could be trained by Mr. Watson?; and (2)
?[u]nlawfully limiting, segregating and/or classifying Mr. Watson on the basis of
his disability.? Watson App. at 26 (Compl. and Jury Demand, filed Sept. 27,
2006). In March 2007, Mr. Watson intervened in this action, alleging multiple
ADA violations?including discrimination, failure to provide reasonable
[End Page 9]
accommodation, and retaliation?as well as several tort claims under Utah state
law?including intentional infliction of emotional distress, negligent infliction of
emotional distress, and invasion of privacy. See id. at 32?39 (Compl. in
Intervention, dated Mar. 22, 2007). 6
In March 2008, EEOC moved for partial summary judgment on the issues
of (1) whether Mr. Watson was a ?qualified individual with a disability? protected
by the provisions of the ADA; and (2) whether C.R. England was liable for
violating ADA ¬§ 102(b)(1), 42 U.S.C. ¬§ 12112(b)(1), by limiting, segregating, or
classifying Mr. Watson on account of his disability. EEOC App. at 39 (Pl.'s Mot.
for Partial Summ. J. and Mem., filed Mar. 31, 2008). On that same day, C.R.
England filed two motions for summary judgment?one against EEOC and one
against Mr. Watson. In its motion regarding EEOC's claims, C.R. England
argued that (1) Mr. Watson ?was an independent contractor, not an employee [of
C.R. England], rendering the [ADA] inapplicable?; (2) ?even if Watson is deemed
an employee, EEOC's ADA claims fail because it cannot establish that Watson is
?disabled? or that England took any adverse action against him because of any
alleged disability?; and (3) ?any purported unlawful disclosure claim is legally
insufficient.? Id. at 38-B (Def.'s Mot. for Summ. J. Against Pl. EEOC, filed Mar.
On appeal, Mr. Watson does not challenge the district court's grant
of summary judgement in favor of C.R. England on his ?negligent infliction
emotional distress? claim. Accordingly, we need not (and do not) address that
[End Page 10]
31, 2008). In its motion regarding Mr. Watson's claims, the company argued that
(1) Mr. Watson was not an ?employee? of C.R. England; (2) that his ADA claims
fail because he was not ?disabled,? and could not establish that C.R. England
?took any adverse action against him because of any disability, or . . . retaliated
against him?; and (3) that ?his three state law claims are legally insufficient.?
Watson App. at 194 (Def.'s Mot. for Summ. J. Against Pl.-Intervenor Watson,
filed Mar. 31, 2009).
In ruling on the motions for summary judgment, the district court stated
that the outcome ?turn[ed] on as many as three core issues,? which it considered
(1) while working for England as a driver and trainer, was
Watson an independent contractor or an England
employee/applicant? (2) if Watson was an England
employee/applicant, was he a qualified individual with a
disability under the ADA? and (3) if Watson was an England
employee/applicant and was an ADA-qualified individual, did
England unlawfully disclose Watson's HIV status or unlawfully
discriminate against Watson based upon his disability?
EEOC v. C.R. England, No. 2:06-CV-00811BSJ, slip op. at 2. With regard to the
first two issues, the district court held that triable issues of fact existed regarding
(1) whether Mr. Watson was an independent contractor, as opposed to an
employee of C.R. England, and (2) whether he had a cognizable ?disability? under
the ADA. However, as we proceed to discuss in further detail, the district court
held that C.R. England ?ha[d] shown that it is entitled to judgment as a matter of
[End Page 11]
law as to each of the plaintiffs? claims, and th[at] EEOC ha[d] failed to show such
entitlement as to the issues raised by its motion for partial summary judgment.?
Id. at 35. Accordingly, the court granted summary judgment in C.R. England?s
favor on all claims, disposing of the case. Mr. Watson and EEOC filed timely
EEOC and Mr. Watson raise a total of eight claims in this combined
appeal. 7 First, EEOC and Mr. Watson argue that C.R. England discriminated
As discussed above, the district court refused to grant summary
judgment on the issues of whether Mr. Watson was an ?employee? of C.R.
England, and whether Mr. Watson's HIV-positive status qualified as a ?disability?
under the ADA. Nevertheless, C.R. England seeks to raise those two issues in
defending against these appeals. First, the company argues that Mr. Watson was
not an ?employee? of C.R. England, and therefore he is not protected by the ADA
because the Act protects only ?employees,? not ?independent contractors.? PGA
Tour, Inc. v. Martin, 532 U.S. 661
, 692 (2001). Second, the company argues that
Mr. Watson did not have a ?disability,? as that term is defined under the ADA,
and that he is therefore not covered by the ADA because the Act protects only
?qualified individual[s]? with a ?disability.? 42 U.S.C. ¬§ 12112(a), (b). They ask
this court to alternatively affirm the district court's grant of summary judgment in
its favor on those two grounds.
Under our case law, an appellee is generally permitted to ?defend the
judgment won below on any ground supported by the record without filing a cross
appeal.? S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735
745 n.2 (10th Cir. 2005) (quoting Tinkler v. United States ex rel. FAA, 982 F.2d 1456
, 1461 n.4 (10th Cir. 1992)); see also United Fire & Cas. Co. v. Boulder
Plaza Residential, LLC, 633 F.3d 951
, 958 (10th Cir. 2011) (?We have held that
an ?appellee may, without filing a cross-appeal, urge in support of a decree any
matter appearing in the record, although his argument may involve an attack upon
the reasoning of the lower court.?? (quoting Ute Distrib. Corp. v. Sec?y of
[End Page 12]
against Mr. Watson, in violation of ADA ¬§ 102(a) and (b)(1), by requiring
potential trainees to sign an HIV-acknowledgment form before training with Mr.
Watson. Second, EEOC and Mr. Watson claim that C.R. England violated
¬§ 102(d) of the ADA by disclosing his HIV status?which they characterize as
confidential medical information protected by that provision?to a potential
trainee and other C.R. England employees. Third, Mr. Watson argues that C.R.
England discriminated against him in violation of the ADA when it ?misdirected?
his loads while he was driving in Omaha. Fourth, Mr. Watson asserts that C.R.
England terminated his employment, both as a trainer and as a driver, in violation
of the ADA. Fifth, Mr. Watson claims that C.R. England failed to provide him
with ?reasonable accommodations,? in violation of ADA ¬§ 102(b)(5), when it
refused to grant his request for ?home time.? Sixth, Mr. Watson asserts an ADA
retaliation claim, arguing that the company unlawfully retaliated against him by
sending his outstanding debt to a collection agency. Seventh, Mr. Watson asserts
a Utah state law claim of intentional infliction of emotional distress. Lastly, and
also under Utah state law, Mr. Watson claims that C.R. England violated his right
Interior, 584 F.3d 1275
, 1282 (10th Cir.2009))); Fischer-Ross v. Barnhart, 431 F.3d 729
, 732 n.2 (10th Cir. 2005) (stating that ?an appellee may generally,
without taking a cross appeal, urge in support of a decree any matter appearing in
the record?). However, in this instance, we can affirm the district court's grant of summary judgment without reaching those two issues. Accordingly, we decline to
address them on appeal.
[End Page 13]
to privacy when it disclosed his HIV status to a potential trainee and other C.R.
England employees. We address each claim in turn.
I. Standard of Review
On appeal, ?[w]e review the district court's grant of summary judgment de
novo, applying the same standards that the district court should have applied.?
Jarvis v. Potter, 500 F.3d 1113
, 1120 (10th Cir. 2007). The district court's grant
of summary judgment must be affirmed ?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.? Fed. R. Civ. P. 56(a) (2010). 8 In reviewing a motion for
summary judgment, ?we consider the evidence in the light most favorable to the
non-moving party.? Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255
1259 (10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956
, 964 (10th Cir.
2009)) (internal quotation marks omitted). However, ?[u]nsupported conclusory
allegations do not create a genuine issue of fact.? Reinhardt v. Albuquerque Pub.
Sch. Bd. of Educ., 595 F.3d 1126
, 1131 (10th Cir. 2010) (quoting L & M Enters.,
Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284
, 1287 (10th Cir. 2000)) (internal
quotation marks omitted).
Rule 56 was recently amended, effective December 1, 2010. Under
the amended rule, the standard previously enumerated in subsection (c) was
moved to subsection (a), and the term genuine ?issue? became genuine ?dispute.?
See Fed. R. Civ. P. 56 advisory committee's notes (2010 Amendments).
However, the ?standard for granting summary judgment remains unchanged.? Id.
[End Page 14]
II. ADA Claims
A. EEOC & Mr. Watson's Discrimination Claims
?Congress enacted the ADA with the goal of assuring ?equality of
opportunity, full participation, independent living, and economic self-sufficiency
for [individuals with disabilities].?? Chaffin v. Kan. State Fair Bd., 348 F.3d 850
858 (10th Cir. 2003) (alteration in original) (quoting 42 U.S.C. ¬§ 12101(a)(8)).
The purposes of the Act include, inter alia, ?provid[ing] a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities? and ?provid[ing] clear, strong, consistent,
enforceable standards addressing discrimination against individuals with
disabilities.? 42 U.S.C. ¬§ 12101(b)(1)?(2). In accordance with these purposes,
¬§ 102(a) of the ADA makes it unlawful for an employer to ?discriminate against a
qualified individual with a disability because of the disability of such individual
in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.? Id. ¬§ 12112(a) (2008). 9
Under our case law, in order to establish a prima facie case of disability
Effective January 1, 2009, 42 U.S.C. ¬§ 12112(a) was amended by
replacing the phrase ?with a disability because of the disability of such
individual? with the phrase ?on the basis of disability.? See Pub. L. No. 110-325,
¬§ 5(a), 122 Stat. 3557 (Sept. 25, 2008). This statutory amendment does not affect
our analysis of the issues presented on appeal.
[End Page 15]
discrimination under the ADA, a plaintiff must demonstrate that he ?(1) is a
disabled person as defined by the ADA; (2) is qualified, with or without
reasonable accommodation, to perform the essential functions of the job held or
desired; and (3) suffered discrimination by an employer or prospective employer
because of that disability.? Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080
, 1086 (10th Cir. 2008); accord Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117
, 1128 (10th Cir. 2003); Poindexter v. Atchison, Topeka & Santa Fe Ry.,
168 F.3d 1228
, 1230 (10th Cir. 1999). In order to demonstrate ?discrimination,?
a plaintiff generally must show that he has suffered an ?adverse employment
action because of the disability.? 10 Mathews v. Denver Post, 263 F.3d 1164
(10th Cir. 2001); see also Butler v. City of Prairie Village, Kan., 172 F.3d 736
748 (10th Cir. 1999) (stating that ?the third element of the prima facie case . . .
requires the plaintiff to come forth with evidence showing that the adverse
The parties acknowledge that in order to prevail on his ADA
discrimination claim, Mr. Watson must demonstrate some sort of ?adverse? action
or ?adverse? effect on his employment. See EEOC Opening Br., No. 09-4207, at
49 (stating that C.R. England's actions ?adversely affected [Mr. Watson?s] status?); Watson Opening Br., No. 09-4217, at 31 (recognizing that his claim is
one for ?discrimination based on adverse employment actions,? and arguing that
?[Mr.] Watson has provided evidence that shows that Defendant England
discriminated against him by taking adverse job actions? against him); C.R.
England Br., No. 09-4217, at 29 (arguing that the plaintiffs must show that Mr.
Watson ?has been subjected to a genuinely adverse employment action?). Indeed,
ADA ¬§ 102(b)(1)?upon which the EEOC's discrimination claim is based?only
prohibits ?limiting, segregating, or classifying a[n] . . . employee in a way that
adversely affects the opportunities or status of such . . . employee because of the
disability of such . . . employee.? 42 U.S.C. ¬§ 12112(b)(1) (emphasis added).
[End Page 16]
employment decision was because of his disability? (emphasis added)); Doe v.
Dekalb Cnty. Sch. Dist., 145 F.3d 1441
, 1454 (11th Cir. 1998) (Under the third
prong of his prima facie case, the plaintiff ?must prove . . . that he has suffered an
adverse employment action because of his HIV status (i.e., that the [employer]
has discriminated against him because of his disability).?); cf. Piercy v. Maketa,
480 F.3d 1192
, 1203 (10th Cir. 2007) (?The [Supreme] Court [has] made clear the
substantive discrimination provisions of Title VII are limited ?to [adverse] actions
that affect employment or alter the conditions of the workplace.?? (third alteration
in original) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53
If a plaintiff offers no direct evidence of discrimination, which is often the
case, the court applies the burden-shifting analysis articulated by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See, e.g.,
MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266
, 1274 (10th Cir. 2005).
Under this framework, a plaintiff must first make out a prima facie case of
discrimination, as described above. McDonnell Douglas, 411 U.S. at 802. After
Due to the similarities between the ADA and Title VII, we generally
interpret those statutes consistently. See, e.g., Lanman v. Johnson Cnty., Kan.,
393 F.3d 1151
, 1155 (10th Cir. 2004) (?Given the similarities [between the
ADA and Title VII], this court, and many others, have used similar analyses when
interpreting the two statutes.?); id. (?Courts of appeals routinely apply the same standards to evaluate Title VII claims as they do ADA claims . . . .? (quoting
Brown v. Brody, 199 F.3d 446
, 456 n.10 (D.C. Cir. 1999)) (internal quotation
[End Page 17]
the plaintiff has made the requisite showing, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its actions. Id. at 802?03. If
the defendant proffers such a reason, the burden then shifts back to the plaintiff to
show that the defendant's stated reasons are merely ?pretextual.? Id. at 804?05.
?[A] plaintiff can establish pretext by showing the defendant's proffered
non-discriminatory explanations for its actions are ?so incoherent, weak,
inconsistent, or contradictory that a rational factfinder could conclude [they are]
unworthy of belief.?? Johnson v. Weld Cnty., Colo., 594 F.3d 1202
, 1211 (10th
Cir. 2010) (alteration in original) (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187
, 1197 (10th Cir. 2008)); see also Zamora v. Elite Logistics, Inc., 478 F.3d 1160
, 1166 (10th Cir. 2007) (?A plaintiff demonstrates pretext by showing
either that a discriminatory reason more likely motivated the employer or that the
employer's proffered explanation is unworthy of credence.? (quoting Stinnett v.
Safeway, Inc., 337 F.3d 1213
, 1218 (10th Cir. 2003)) (internal quotation marks
[End Page 1. ADA ¬§ 102(b)(1) Discrimination Claim]
EEOC and Mr. Watson argue that C.R. England unlawfully discriminated
against Mr. Watson ?by requiring his trainees to sign a form consenting to be
trained by an HIV-positive driver.? EEOC Opening Br., No. 09-4207, at 37; see
also Watson Opening Br., No. 09-4217, at 40?41. More specifically, EEOC
argues that the acknowledgment-form requirement violated ADA ¬§ 102(b)(1),
[End Page 18]
which prohibits discrimination by ?limiting, segregating, or classifying a job
applicant or employee in a way that adversely affects the opportunities or status
of such applicant or employee because of the disability of such applicant or
employee.? 42 U.S.C. ¬§ 12112(b)(1). As noted above, as part of their prima facie
case of discrimination, the appellants must demonstrate that Mr. Watson suffered
from an ?adverse employment action.? Mathews, 263 F.3d at 1167. In fact,
¬§ 102(b)(1) explicitly limits the discriminatory prohibition to employer actions
that ?adversely affect the opportunities or status? of the employee. 42 U.S.C.
¬§ 12112(b)(1) (emphasis added).
The district court granted summary judgment in favor of C.R. England on
this claim, based on its conclusion that Mr. Watson had not suffered from an
adverse employment action. As the district court explained:
Watson was not reassigned or denied the ability to become a
driver-trainer. Nor was he limited in his opportunity to drive, or
segregated from others who did not want to work with him. His
training responsibilities were the same as other England
driver-trainers, and he suffered no significant change in his
compensation as a driver-trainer as a consequence of England?s
use of the acknowledgment form.
EEOC v. C.R. England, No. 2:06-CV-00811BSJ, slip op. at 20. The court further
stated that ?[t]he adverse employment consequence asserted by the EEOC . . . ,
namely that trainees were discouraged from working with [him] because of his
disability as disclosed by the acknowledgment form, lacks evidentiary support in
th[e] record.? Id. at 21. We agree with the district court that EEOC and Mr.
[End Page 19]
Watson have not stated a viable claim under ADA ¬§ 102(b)(1).
At the outset, we acknowledge that an employer's accommodation of the
discriminatory preferences of other employees, clients, or customers could, under
certain circumstances, expose the employer to liability for discrimination. 12
However, as stated above, a viable claim of discrimination in this context must
still be predicated on an adverse employment action. The Tenth Circuit has
?liberally define[d] the phrase ?adverse employment action,?? Sanchez v. Denver
See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073?74 (10th Cir.
1998) (Under Title VII, ?[a]n employer who condones or tolerates the creation of
[a hostile work] environment should be held liable regardless of whether the
environment was created by a co-employee or a nonemployee [i.e., a customer], since the employer ultimately controls the conditions of the work environment.?);
Lam v. Univ. of Haw., 40 F.3d 1551
, 1560 n.13 (9th Cir. 1994) (?The existence of
. . . third party preferences for discrimination does not, of course, justify
discriminatory hiring practices.? (citing Diaz v. Pan Am. World Airways, 442 F.2d 385
, 389 (5th Cir. 1971))); Erebia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250
, 1258 (6th Cir. 1985) (?An employer intends discrimination where he
condones racial harassment of employees.?); Abron v. Black & Decker (U.S.) Inc.,
654 F.2d 951
, 965 (4th Cir. 1981) (?Numerous cases have held that an employee
may bring a Title VII suit against an employer who creates or condones a
discriminatory work environment . . . .?); Diaz, 442 F.2d at 389 (?While we
recognize that the public's expectation of finding one sex in a particular role may
cause some initial difficulty, it would be totally anomalous if we were to allow
the preferences and prejudices of the customers to determine whether the sex
discrimination was valid.?); see also Pleener v. New York City Bd. of Educ., 311
F. App?x 479, 482 (2d Cir. 2009) (?We agree that federal law does not permit an
employer to discriminate based on race to accommodate the actual or perceived
invidious biases of its clientele.? (citing Knight v. Nassau Cnty. Civil Serv.
Comm?n, 649 F.2d 157
, 162 (2d Cir. 1981))); cf. 29 C.F.R. ¬§ 1604.2(a)(1)(iii)
(providing that the bona fide occupational qualification exception does not
generally apply to ?refusal to hire an individual because of the preferences of
coworkers, the employer, clients or customers?).
[End Page 20]
Pub. Schs., 164 F.3d 527
, 532 (10th Cir. 1998), and takes ?a case-by-case
approach, examining the unique factors relevant to the situation at hand,? Hillig v.
Rumsfeld, 381 F.3d 1028
, 1031 (10th Cir. 2004) (quoting Sanchez, 164 F.3d at
531) (internal quotation marks omitted). In general, ?[o]nly ?acts that constitute a
significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits? will rise to the level of an adverse employment
action.? Haynes v. Level 3 Commc?ns, LLC, 456 F.3d 1215
, 1222 (10th Cir.
2006) (quoting Dick v. Phone Directories Co., Inc., 397 F.3d 1256
, 1268 (10th
Cir. 2005)); accord Hillig, 381 F.3d at 1032?33 (citing Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742
, 761 (1998)). However, the term ?adverse employment
action? is not necessarily ?limited to such acts.? Hillig, 381 F.3d at 1032?33; see,
e.g., id. at 1031 (noting that an employer's action that causes ?harm to future
employment prospects,? such as a negative job reference, can be considered an
adverse employment action (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980
986?87 (10th Cir. 1996))). But although the term is not confined to, for example,
?monetary losses in the form of wages or benefits[,] . . . ?a mere inconvenience or
an alteration of job responsibilities?? does not constitute an ?adverse employment
action.? Sanchez, 164 F.3d at 532 (quoting Crady v. Liberty Nat?l Bank & Trust
Co., 993 F.2d 132
, 136 (7th Cir. 1993)). Accordingly, a plaintiff must show that
the alleged adverse action caused more than ?de minimis harm? to or a ?de
[End Page 21]
minimis impact? upon an employee's job opportunities or status. Hillig, 381 F.3d
In this instance, as noted, EEOC and Mr. Watson allege that C.R. England
discriminated against Mr. Watson by requiring potential trainees to sign an HIV-
acknowledgment form before training with him. However, C.R. England did not
deny Mr. Watson the opportunity to become a trainer, demote him, or reassign
him due to his HIV status. Indeed, Mr. Watson's training responsibilities, duties,
and compensation were the same as other driver-trainers, and there is no evidence
that he was ever segregated from other employees or trainees. Furthermore, as
discussed infra, the mere act of disclosing Mr. Watson's HIV status did not in and
of itself amount to an actionable adverse action under the ADA. See infra Part
II.B. Nevertheless, EEOC argues that the acknowledgment form constitutes an
actionable adverse action because it ?condition[ed] [Mr. Watson?s] opportunity to
be a trainer upon the disclosure of [his HIV status],? ?limited his pool of trainees
to only those students . . . willing to work with an HIV-positive trucker,? and
?allow[ed] potential trainees to refuse to work with him because of his HIV.?
EEOC Opening Br., No. 09-4207, at 47?48; see also Watson Opening Br., No. 09-
4217, at 40?41 (arguing that the ?disclosure [form] was improper because it
allowed Defendant England to deny Plaintiff Watson the ability to train drivers,?
and ?[a]ny employer policy which grants the employees veto power over working
with the disabled should be viewed as per se discrimination under the ADA?).
[End Page 22]
Yet, EEOC and Mr. Watson have failed to put forth any evidence that Mr.
Watson's opportunities as a trainer were actually limited in any respect. Only
one potential trainee, Mr. Seastrunk, was presented with the acknowledgment
form, and he willingly signed it and was subsequently trained by Mr. Watson.
Furthermore, C.R. England established by its evidence that there were abundant
trainees in the training pool??several hundred at any one time.? Oral Argument
at 22:21. And appellants do not dispute this. Therefore, even if a potential
trainee had declined to work with Mr. Watson?which, again, did not occur in
this instance?that fact alone would not have impaired Mr. Watson's ability to
function as a trainer, nor would it have prevented him from taking on another
EEOC also argues that Mr. Watson was faced with the ?Hobson?s
choice? of acquiescing to the use of the acknowledgment form or forgoing the
opportunity to be a trainer altogether. In support of its argument, EEOC cites the
unpublished Sixth Circuit decision Baker v. Windsor Republic Doors, Nos.
08-6200; 09-5722; 09-6553, 2011 WL 805768 (6th Cir. Mar. 8, 2011). In that
case, the employee was told by his employer that he could not return to work
unless and until he waived his right to claim workers? compensation benefits
arising from the accident that caused his disability. Id. at *3. The Sixth Circuit
concluded that this amounted to an ?adverse employment action? under the ADA.
Id. at *7. EEOC argues that Baker is analogous to the situation presently before
us because Mr. Watson, like Mr. Baker, was presented with a ?Hobson?s
choice??viz., either disclose your medical information to potential trainees or
forgo the opportunity to be employed as a trainer. Contrary to the case at bar,
however, the plaintiff in Baker was prohibited from returning to work due to his
objection to the employer's request. In the present case, Mr. Watson was never
prevented from working or participating in the training program. In fact, Mr.
Watson consistently agreed to the form's use, and never voiced any objection to
[End Page 23]
In the end, the appellants? arguments are insufficient to support this
discrimination claim. EEOC and Mr. Watson have not demonstrated that the
acknowledgment form had any meaningful impact or effect upon Mr. Watson?s
employment opportunities or status; the potential that the acknowledgment form
could have adversely affected his employment at some unknown time in the
future, at least on this record, is not enough to support a claim under the ADA.
Even though some might frown upon C.R. England's actions in effectively
allowing trainees to decline to work with Mr. Watson because he has HIV, ?not
every perceived indignity will rise to the level of an adverse employment action.?
Haynes, 456 F.3d at 1222; see also Hoffman v. Caterpillar, Inc., 256 F.3d 568
575?76 (7th Cir. 2001) (?The idea behind requiring proof of an adverse
employment action is simply that a statute which forbids employment
discrimination is not intended to reach every bigoted act or gesture that a worker
might encounter in the workplace.? (alteration omitted) (quoting Hunt v. City of
Markham, Ill., 219 F.3d 649
, 653 (7th Cir. 2000)) (internal quotation marks
The authorities cited by EEOC do not convince us that a different outcome
is warranted. EEOC cites Duda v. Bd. of Educ. of Franklin Park, 133 F.3d 1054
C.R. England. Furthermore, even if Baker was on point, it is an unpublished, out-
of-circuit case that accordingly has no precedential value. We therefore find the
EEOC's argument unpersuasive.
[End Page 24]
1059 (7th Cir. 1998), in support of its claim. In Duda, a school custodian who
suffered from a mental disability brought an ADA discrimination claim against
the school board when the employer, inter alia, ?forced [him] to transfer to a new
location and to work alone, under orders not to speak to others.? 133 F.3d at
1059. By contrast, C.R. England did not transfer Mr. Watson to a separate
location, and there is no evidence that Mr. Watson was ever isolated from other
employees. Furthermore, in each of the cases cited by EEOC, the employee?as
required under ADA jurisprudence?had been shown to have suffered an adverse
impact or effect in relation to his employment opportunities or status. See id. at
1056 (addressing a situation where the plaintiff was forced to transfer to an
entirely separate work location, was ?told not to have conversations with others?
at the new location, and ?when he expressed an interest in applying for a better
position, . . . he was told not to apply?); Lam, 40 F.3d at 1554, 1559 (indicating
that the plaintiff had suffered from an ?adverse employment decision? when the
employer rejected her employment applications allegedly due to her race, sex, and
national origin); Diaz, 442 F.2d at 385?86 (presenting situation where employer
?refus[ed] to hire appellant . . . solely on the basis of [his] sex?). The appellants
have not demonstrated that Mr. Watson has suffered any such adverse impact in
this instance. As discussed above, Mr. Watson was not demoted, reassigned, or
refused a promotion; his job responsibilities, duties, and compensation remained
unchanged; and his opportunities and status as a trainer?in terms of availability
[End Page 25]
of trainees and opportunities to train?were not shown to have been limited in any
way. Moreover, the acknowledgment form, which was only given to one potential
trainee, did not ?carr[y] a significant risk of humiliation, damage to reputation,
and a concomitant harm to future employment prospects.? Berry, 74 F.3d at 986.
In concluding that Mr. Watson did not suffer from an actionable adverse
employment action in this instance, we do not foreclose the possibility as a matter
of law that a co-worker consent policy?i.e., a policy that gives co-workers a veto
on whether they work with or around a disabled employee?might under certain
circumstances result in or bring about an adverse employment action under the
ADA. We simply hold that EEOC and Mr. Watson have failed to make such a
showing on the record before us. Accordingly, the district court did not err in
granting summary judgment in favor of C.R. England on this claim.
[End Page 2. Mr. Watson's ?Misdirection? Discrimination Claim]
Under Mr. Watson's next discrimination claim, he asserts that he was
discriminated against, in violation of the ADA, when C.R. England ?misdirected
[him] on several loads on his first training assignment.? Watson Opening Br.,
No. 09-4217, at 38. More specifically, Mr. Watson claims that C.R. England sent
him ?contradictory messages? regarding his loads, which ?led him criss-crossing
Omaha during rush hour while towing his trainee along.? Id. at 42. He asserts
that this is an ?adverse employment action? giving rise to a viable claim under the
[End Page 26]
We disagree. We have held that ?a mere inconvenience or an alteration of
job responsibilities? does not constitute an ?adverse employment action.?
Sanchez, 164 F.3d at 532. The misdirection of loads that occurred in this case
was nothing more than a ?mere inconvenience? that does not constitute an
actionable ?adverse employment action.? Accordingly, Mr. Watson has failed to
assert a prima facie case. The district court therefore committed no error in
granting summary judgment in favor of C.R. England on this claim. 14
[End Page 3. Mr. Watson's Discriminatory Termination Claim]
Mr. Watson claims that he was terminated?in his capacity as a trainer and
as a driver?because he was HIV-positive. See Watson Opening Br., No. 09-
4217, at 44 (?Once the upper management for Defendant England learned of
Plaintiff Watson's disability, they moved to terminate Plaintiff Watson.?).
Because Mr. Watson has offered no direct evidence of discrimination, we apply
the McDonnell Douglas burden-shifting test to each claim of discriminatory
The district court granted summary judgment on this claim because
Mr. Watson did not ?point to significant probative evidence from which it may
reasonably be inferred that England deliberately misdirected him as to new loads
in the Omaha area . . . , and that it did so because of his HIV status.? EEOC v.
C.R. England, No. 2:06-CV-00811BSJ, slip op. at 22. Although we ultimately
affirm on an alternate ground supported by the record, see Hayes v. Whitman, 264 F.3d 1017
, 1025 (10th Cir. 2001), we agree with the district court that Mr.
Watson has put forth no significant evidence demonstrating that C.R. England?s
actions were motivated by a discriminatory animus, or that the company?s
legitimate non-discriminatory justification?that these types of cancellations are
commonplace?was merely pretextual.
[End Page 27]
termination. MacKenzie, 414 F.3d at 1274. For purposes of this appeal, we
assume that Mr. Watson can make out a prima facie case of discrimination. See
Zamora, 478 F.3d at 1165 (assuming, without deciding, that the plaintiff had
established a prima facie discriminatory termination claim under the ADA (citing
Annett v. Univ. of Kan., 371 F.3d 1233
, 1235, 1237 (10th Cir. 2004); McCowan v.
All Star Maint., Inc., 273 F.3d 917
, 923 (10th Cir. 2001))). Applying the burden-
shifting test, we conclude that both of Mr. Watson's termination claims fail as a
matter of law, and therefore the district court did not err in granting summary
judgment in C.R. England's favor.
i. Termination as Trainer
When C.R. England removed Mr. Watson from his trainer position, the
stated reasons for the removal were: (1) he ?sat up with [his] student and burned
up [his] h[ou]rs?; (2) he ?refused a load?; and (3) he ?deadheaded . . . over 1000
miles home.? EEOC App. at 432. The supervisor further conveyed to Mr.
Watson that she ?would remove any trainer[,] especially a brand new trainer for
any one of th[o]se reasons,? and that he ?did not use good judgment[,] especially
knowing that [he] w[as] on an automatic 90 day probation.? Id. These stated
reasons?which on their face are legitimate and non-discriminatory?satisfy C.R.
England's ?exceedingly light? burden. Goodwin v. Gen. Motors Corp., 275 F.3d 1005
, 1013 (10th Cir. 2002) (quoting Sprague v. Thorn Ams., Inc., 129 F.3d 1355
1363 (10th Cir. 1997)) (internal quotation marks omitted). The burden, therefore,
[End Page 28]
shifts to Mr. Watson.
In attempting to demonstrate that C.R. England's proffered reasons for the
removal are pretextual, Mr. Watson asserts that the company's justifications are
not supported by the record. Specifically, he argues that (1) ?there is no evidence
that Plaintiff Watson improperly allocated hours for his student?; (2) he refused
the load because he ?was extremely frustrated with at least three load
cancellations in a row?; and (3) ?although [he] deadheaded home, Defendant
England cites no rule or company policy which would require the termination of a
trainer for deadheading home.? Watson Opening Br., No. 09-4217, at 44?45. 15
?In determining whether the proffered reason for a decision was pretextual,
we examine the facts as they appear to the person making the decision,? Zamora,
478 F.3d at 1166 (quoting Watts v. City of Norman, 270 F.3d 1288
, 1295 (10th
Cir. 2001)); we do not look to the plaintiff's subjective evaluation of the
situation, see McKnight v. Kimberly Clark Corp., 149 F.3d 1125
, 1130 (10th Cir.
1998). Regarding the supervisor's belief that he had inappropriately ?burned up?
his hours, Mr. Watson had told the driver manager that he had run out of hours.
When asked why this was the case, Mr. Watson did not explain and instead
Mr. Watson also argues that he ?did not abandon his student at a
truck stop,? but instead ?dropped the student at the truck stop under instructions
from Defendant England.? Watson Opening Br., No. 09-4217, at 45. However,
C.R. England did not cite abandonment of his trainee as a ground for his removal
as a trainer. Mr. Watson's argument, therefore, does not in any way undermine
C.R. England's stated reasons for the termination.
[End Page 29]
simply refused the load. Moreover, regardless of whether Mr. Watson actually
misallocated his hours, we are only concerned with whether the employer held a
good-faith belief that he had done so; the evidence before us demonstrates that it
did. See Sorbo v. United Parcel Serv., 432 F.3d 1169
, 1178 (10th Cir. 2005)
(indicating that the relevant inquiry ?concerns the belief of the employer that the
employee engaged in misconduct, not whether the actual facts, as shown by
evidence extrinsic to the employer's assessment, may have been otherwise.?). In
the end, Mr. Watson has not put forth any evidence that undermines the sincerity
of C.R. England's stated justification?that is, he has not demonstrated it is
?unworthy of belief.? Stover v. Martinez, 382 F.3d 1064
, 1071 (10th Cir. 2004).
In regard to Mr. Watson's load refusal, he does not dispute that he refused
the load, and the evidence confirms that he did. Instead, Mr. Watson attempts to
demonstrate pretext by giving a justification for his refusal, stating that he ?was
extremely frustrated with at least three load cancellations in a row.? Watson
Opening Br., No. 09-4217, at 45. However, we fail to see how this excuse
demonstrates pretext. ?[A]n employer's exercise of erroneous or even illogical
business judgment does not constitute pretext.? Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523
, 1535 (10th Cir. 1995). And Mr. Watson's ?[m]ere conjecture that the
employer's explanation is pretext is insufficient to defeat summary judgment.?
Anderson v. Coors Brewing Co., 181 F.3d 1171
, 1179 (10th Cir. 1999).
As to C.R. England's final justification?that he deadheaded home while
[End Page 30]
training a new driver?Mr. Watson asserts that this is pretextual because the
company ?cites no rule or company policy which would require the termination of
a trainer for deadheading home.? Watson Opening Br., No. 09-4217, at 45
(emphasis added). However, Mr. Watson cites no controlling precedent that in
any way supports the proposition that an employer's legitimate, non-
discriminatory justification must be based upon an official company rule or
policy?much less be required by such a rule or policy?and we are not aware of
any such precedent. See Medlock v. United Parcel Serv., Inc., 608 F.3d 1185
1192?93 (10th Cir, 2010) (rejecting the argument, asserted by the plaintiff in an
age discrimination case, ?that an otherwise reasonable justification for a business
decision somehow loses its legitimacy simply because it reflects an exercise of
managerial judgment rather than a ministerial execution of written policy?as if a
manager could not legitimately fire an employee for vandalizing property,
stealing from co-workers, or assaulting a customer absent a formal company
policy specifically addressing such misconduct?).
It is true that a failure to follow company policy can support a finding of
pretext in some circumstances. See Timmerman v. U.S. Bank, N.A., 483 F.3d 1106
, 1119 (10th Cir. 2007) (?It is well-established that pretext can be shown by
?evidence that the defendant acted contrary to a written company policy
prescribing the action to be taken by the defendant under the circumstances.??
(quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220
, 1230 (10th Cir.
[End Page 31]
2000))). However, we discern no basis for concluding that an otherwise
reasonable justification by an employer should be deemed pretextual merely
because it is not directly reinforced by an official rule or policy. This ?facially
untenable idea . . . is belied by countless employment discrimination cases
decided on the basis of legitimate business justifications without any reference to
formal policies necessarily legitimizing those justifications.? Medlock, 608 F.3d
at 1193. Accordingly, Mr. Watson's argument does nothing to cast doubt on C.R.
England's otherwise legitimate and non-discriminatory justification. In sum, Mr.
Watson has not met his burden to demonstrate that ?the employer's proffered
explanation is unworthy of credence.? Zamora, 478 F.3d at 1166 (quoting
Stinnett, 337 F.3d at 1218) (internal quotation marks omitted).
ii. Termination as Driver
Mr. Watson next argues that C.R. England terminated his employment as an
independent-contractor driver for the company due to his HIV status. As
discussed above, after Mr. Watson deadheaded to Florida he remained there for a
period of more than two weeks with his leased truck; he did not accept new loads,
generate any income, or make lease payments on his truck. During this time, C.R.
England attempted to contact Mr. Watson, but received no response. On March 4,
2003, C.R. England terminated Mr. Watson's Lease Agreement, and Opportunity
Leasing repossessed his truck.
In justifying the severance of the relationship, C.R. England cites Mr.
[End Page 32]
Watson's (1) ?poor performance,? which includes failing to respond and accept
loads, and (2) the fact that he defaulted on his lease (i.e., falling ?too far in the
hole to recover,? EEOC App. at 435). C.R. England Br., No. 09-4217, at 41.
Again, these justifications satisfy C.R. England's ?exceedingly light? burden,
Goodwin, 275 F.3d at 1013, which shifts the burden to Mr. Watson to demonstrate
Mr. Watson does not attempt to undermine the justifications regarding his
?poor performance? or his failure to make required payments under the lease
agreement; therefore, he has not shown that these legitimate, non-discriminatory
justifications are ?unworthy of belief.? Stover, 382 F.3d at 1071. Because Mr.
Watson has not demonstrated that these justifications were ?pretext masking
discriminatory animus,? Proctor v. United Parcel Serv., 502 F.3d 1200
(10th Cir. 2007) (quoting Piercy, 480 F.3d at 1198) (internal quotation marks
omitted), this claim is without merit.
Although Mr. Watson does not attempt to undermine the justifications
discussed above, he does attack an alleged third ?justification??that he
?abandoned his vehicle.? Mr. Watson argues that he ?never abandoned his
vehicle,? which ?clearly shows pretext.? Watson Opening Br., No. 09-4217, at
45. However, the record demonstrates that C.R. England never justified the
termination on the ground that Mr. Watson had ?abandoned? his truck. The
record evidence that Mr. Watson identifies related to vehicle abandonment is
[End Page 33]
unavailing. Specifically, Mr. Watson points to the deposition of Kimberly Cage,
the manager of training operations, who testified that another C.R. England
employee had told her four years prior that Mr. Watson ?had abandoned his
truck.? Watson App. at 619 (Dep. of Kimberly Cage, dated July 11, 2007).
Examined in context, this single statement?which was not otherwise used to
justify the termination?is not enough to establish pretext, particularly in light of
the above-cited justifications, which we find to be legitimate and non-
discriminatory. See Zamora, 478 F.3d at 1178 (?[T]his Court frequently
examines statements and events in context to determine their legal effect or
whether they genuinely create a disputed question of material fact.?).
Accordingly, Mr. Watson cannot demonstrate that C.R. England's justifications
for terminating the lease agreement were pretextual, and the district court
committed no error in entering judgment in the company's favor.
B. EEOC & Mr. Watson's ADA ¬§ 102(d) Disclosure Claim
EEOC and Mr. Watson next assert that C.R. England violated ADA
¬§ 102(d), 42 U.S.C. ¬§ 12112(d), by disclosing medical information concerning
Watson's HIV-positive status to a potential trainee, as well as to other C.R.
England employees. C.R. England argues on appeal, as it did before the district
court, that this claim fails for two reasons. First, it argues that ¬§ 102(d) does not
apply to voluntarily disclosed medical information that was not gleaned from a
medical examination or inquiry. Second, it argues that Mr. Watson did not suffer
[End Page 34]
a sufficient ?cognizable injury? to sustain a claim under ADA ¬§ 102(d). We agree
with C.R. England's first contention?that ADA ¬§ 102(d) does not protect
voluntarily disclosed information?and therefore need not opine regarding its
Section 102(d) of the ADA governs ?medical examinations and inquiries.?
42 U.S.C. ¬§ 12112(d). That section covers medical examinations and inquiries in
three distinct instances: (a) preemployment, ADA ¬§ 102(d)(2), 42 U.S.C.
¬§ 12112(d)(2); (b) post-offer, ADA ¬§ 102(d)(3), 42 U.S.C. ¬§ 12112(d)(3); and
(c) during the employment relationship, ADA ¬§ 102(d)(4), 42 U.S.C.
¬§ 12112(d)(4). Although ADA ¬§ 102(d)(2) prohibits employers from making
certain pre-employment inquiries, the provisions of ADA ¬§ 102(d)(3) and (4)
permit employers to conduct certain medical inquiries and examinations. More
specifically, ADA ¬§ 102(d)(3) permits an employer to conduct post-offer entrance
medical examinations under certain circumstances, see 42 U.S.C. ¬§ 12112(d)(3),
and ADA ¬§ 102(d)(4) permits employers to ?conduct voluntary medical
examinations, including voluntary medical histories, which are part of an
employee health program available to employees at that work site,? 42 U.S.C.
Any information obtained through a post-offer entrance medical
examination under ¬§ 102(d)(3) or a voluntary medical examination or inquiry
under ¬§ 102(d)(4) must be ?treated as a confidential medical record.? 42 U.S.C.
[End Page 35]
¬§¬§ 12112(d)(3)(B), (d)(4)(C); see also 29 C.F.R. ¬§ 1630.14(c)(1) (?Information
obtained under paragraph (c) of this section regarding the medical condition or
history of any employee shall be collected and maintained on separate forms and
in separate medical files and be treated as a confidential medical record,? subject
to limited exceptions.) Disclosure of confidential information obtained through
an authorized medical examination or inquiry would constitute a violation of
¬§ 102(d) and could give rise to a claim under the ADA. See 42 U.S.C.
¬§ 12112(d)(3)(C) (stating that the results of an examination conducted under the
authority of ¬§ 102(d)(3) or ¬§ 102(d)(4) must be ?used only in accordance with this
title?); see also McPherson v. O?Reilly Auto., Inc., 491 F.3d 726
, 732 (8th Cir.
2007) (?The ADA prohibits an employer from disclosing confidential medical
information about an ex-employee . . . .? (citing Cossette v. Minn. Power & Light,
188 F.3d 964
(8th Cir. 1999))).
On its face, ¬§ 102(d) does not apply to or protect information that is
voluntarily disclosed by an employee unless it is elicited during an authorized
employment-related medical examination or inquiry. See generally United States
v. Sprenger, 625 F.3d 1305
, 1307 (10th Cir. 2010) (?Our interpretation of a
statute begins with its plain language.?). Indeed, the only mention of the word
?voluntary? appears in ¬§ 102(d)(4)(B), which refers to ?voluntary medical
examinations, including voluntary medical histories, which are part of an
employee health program available to employees at that work site.? 42 U.S.C.
[End Page 36]
¬§ 12112(d)(4)(B) (emphasis added). However, this provision does not expressly
include voluntarily disclosed medical information offered outside the context of
?an employee health program.? Id. Because the plain language of the statute is
silent with regard to such information, it perforce cannot be interpreted as
extending the protections of ¬§ 102(d)'s confidentiality restrictions to such
information. In sum, if an employer discloses medical information that was
voluntarily offered by an employee?outside of the context of an authorized
employment-related medical examination or inquiry?then the employer is not
subject to liability under ¬§ 102(d).
The Eleventh Circuit, which is the only other circuit court that has
definitively reached this issue, has likewise concluded that voluntarily disclosed
medical information is not protected under ADA ¬§ 102(d). In Cash v. Smith, the
court held that ¬§ 102(d) did not apply to medical information voluntarily
disclosed by an employee to her supervisor?even though the disclosure was done
?in confidence??and therefore the supervisor's disclosure of that information to
other employees did not violate the ADA ¬§ 102(d). 231 F.3d 1301
, 1303, 1307
(11th Cir. 2000) (?[T]he disclosure that Cash complains of was not of the result
of an examination ordered by [the employer], but of a voluntary disclosure that
Cash made to [her supervisor]. The statute and regulation cited by Cash [i.e.,
ADA ¬§ 102(d) and 29 C.F.R. ¬§ 1630.14(c)] do not govern voluntary disclosures
initiated by the employee, and therefore the district court correctly granted [the
[End Page 37]
employer?s] motion for summary judgment on this count.?). 16
The parties do not dispute that Mr. Watson voluntarily disclosed to Ms.
Johansen that he was HIV-positive, and neither party suggests that Mr. Watson?s
disclosure was the result of any sort of examination or inquiry. See EEOC v. C.R.
England, No. 2:06-CV-00811BSJ, slip op. at 16 n.6 (?Nothing in the parties?
memoranda suggests that any [C.R. England] employee asked Watson a question
likely to elicit information about Watson's HIV status.?). Accordingly, the
EEOC cites its own Enforcement Guidance as support for the
proposition that voluntarily disclosed medical information is protected by
¬§ 102(d). This argument is based on an assertion found in this Enforcement
Guidance, which states that ?[t]he ADA requires employers to treat any medical
information obtained from a disability-related inquiry or medical examination . . .
as well as any medical information voluntarily disclosed by an employee, as a
confidential medical record.? EEOC App. at 1112 (alteration in original)
(emphasis added) (quoting EEOC Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act (July 27, 2000)) (internal quotation marks omitted). However, as
the district court properly noted, EEOC's interpretations are not controlling; the
cited guidance document is only entitled to our respect to the extent that it has the
?power to persuade.? Nat?l R.R. Passenger Corp. v. Morgan, 536 U.S. 101
n.6 (2002) (quoting Christensen v. Harris Cnty., 529 U.S. 576
, 587 (2000))
(internal quotation marks omitted). EEOC also acknowledges the non-binding
effect of its guidance document. See EEOC Opening Br., No. 09-4207, at 59
(stating that EEOC's guidelines ?are not controlling upon the courts by reason of
their authority, but they do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance? (quoting
Smith v. Midland Brake, Inc., 180 F.3d 1154
, 1165 (10th Cir. 1999)) (internal
quotation marks omitted)). In this instance, EEOC's guidance does not persuade
us because it is not consistent with the plain language of the statute. Furthermore,
the Enforcement Guidance states elsewhere that ?[o]nly disability-related
inquiries and medical examinations are subject to the ADA's restrictions.? EEOC
App. at 1113.
[End Page 38]
information Mr. Watson voluntarily provided to C.R. England was not protected
by ¬§ 102(d), and the company's disclosure of this information did not violate that
provision. As a matter of law, C.R. England was entitled to judgment on this
issue, and the district court's grant of summary judgment in favor of the company
was not erroneous.
C. Mr. Watson's Reasonable Accommodation Claim
Mr. Watson next asserts that C.R. England violated the ADA by denying
his request for ?home time.? He claims that by refusing his request, C.R. England
failed to provide the ?reasonable accommodations? for his disability that the ADA
requires. The district court entered summary judgment in favor of C.R. England
on this claim because Mr. Watson had failed to show that he needed ??home time?
both prior to and following his arrival in Omaha,? and because ?he made no
reference to any disability in his request for ?home time?? that would put C.R.
England ?on notice that a reasonable accommodation was being requested under
the ADA.? Id. at 25.
Under ADA ¬§ 102(b)(5)(A), an employer can unlawfully ?discriminate?
against an employee by failing to ?mak[e] reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a
disability who is an . . . employee.? 42 U.S.C. ¬§ 12112(b)(5)(A); accord Lowe v.
Angelo's Italian Foods, Inc., 87 F.3d 1170
, 1174 (10th Cir. 1996). ?The statute
thus establishes a cause of action for disabled employees whose employers fail to
[End Page 39]
reasonably accommodate them.? Selenke v. Med. Imaging of Colo., 248 F.3d 1249
, 1261 (10th Cir. 2001).
The Act defines ?reasonable accommodation? to include:
(A) making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.
42 U.S.C. ¬§ 12111(9)(A)?(B); see also 29 C.F.R. ¬§ 1630.2(o) (defining
?reasonable accommodation?). We have held that, under the appropriate
circumstances, ?[a]n allowance of time for medical care or treatment may
constitute a reasonable accommodation.? Rascon v. U S W. Commc?ns, Inc., 143 F.3d 1324
, 1333?34 (10th Cir. 1998); see also Hudson v. MCI Telecommc?ns
Corp., 87 F.3d 1167
, 1169 (10th Cir. 1996) (?This court agrees with plaintiff that
a reasonable allowance of time for medical care and treatment may, in appropriate
circumstances, constitute a reasonable accommodation.?).
?To facilitate the reasonable accommodation, ?[t]he federal regulations
implementing the ADA envision an interactive process that requires participation
by both parties.?? Bartee v. Michelin N. Am., Inc., 374 F.3d 906
, 916 (10th Cir.
2004) (alteration in original) (quoting Templeton v. Neodata Servs., Inc., 162 F.3d 617
, 619 (10th Cir. 1998)); see also 29 C.F.R. ¬§ 1630.2(o)(3). However, before
[End Page 40]
an employer's duty to provide reasonable accommodations?or even to participate
in the ?interactive process??is triggered under the ADA, the employee must
make an adequate request, thereby putting the employer on notice. See, e.g.,
Midland Brake, 180 F.3d at 1171 (?In general, the interactive process must
ordinarily begin with the employee providing notice to the employer of the
employee's disability and any resulting limitations . . . .?); Woodman v. Runyon,
132 F.3d 1330
, 1345 (10th Cir. 1997) (?The ?employee's initial request for an
accommodation . . . triggers the employer's obligation to participate in the
interactive process.?? (quoting Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155
165 (5th Cir. 1996))); see also, e.g., Colwell v. Rite Aid Corp., 602 F.3d 495
(3d Cir. 2010) (?[E]ither by direct communication or other appropriate means, the
employee must make clear that the [he/she] wants assistance for his or her
disability.? (alterations in original) (emphasis added) (quoting Conneen v. MBNA
Am. Bank, N.A., 334 F.3d 318
, 332 (3d Cir. 2003)) (internal quotation marks
omitted)); Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6
, 23 (1st Cir. 2004)
(?The request for accommodation must be sufficiently direct and specific, giving
notice that she needs a special accommodation.? (quoting Reed v. LePage
Bakeries, Inc., 244 F.3d 254
, 261 (1st Cir. 2001)) (internal quotation marks
Although the notice or request ?does not have to be in writing, be made by
the employee, or formally invoke the magic words ?reasonable accommodation,??
[End Page 41]
it ?nonetheless must make clear that the employee wants assistance for his or her
disability.? Taylor v. Phoenixville Sch. Dist., 184 F.3d 296
, 313 (3d Cir. 1999)
(emphasis added). That is, ?the employer must know of both the disability and
the employee's desire for accommodations for that disability.? Id.; see Zivkovic
v. S. Cal. Edison Co., 302 F.3d 1080
, 1089 (9th Cir. 2002) (?An employee is not
required to use any particular language when requesting an accommodation but
need only ?inform the employer of the need for an adjustment due to a medical
condition.?? (quoting Barnett v. U.S. Air, Inc., 228 F.3d 1105
, 1114 n.5 (9th Cir.
2000) (en banc), vacated on other grounds by 535 U.S. 391
(2002))); see also
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, 1999 WL 33305876, at *4 (Mar. 1, 1999)
(?When an individual decides to request accommodation, the individual . . . must
let the employer know that s/he needs an adjustment or change at work for a
reason related to a medical condition. To request accommodation, an individual
may use ?plain English? and need not mention the ADA or use the phrase
In this instance, Mr. Watson's accommodation claim fails because he did
not make an adequate request for reasonable accommodation regarding his alleged
disability. 17 Therefore, C.R. England's obligation under the ADA to provide
As previously stated, we need not opine on whether Mr. Watson in
[End Page 42]
reasonable accommodation was never triggered. The first time Mr. Watson
requested ?home time,? on February 11, 2003, the stated reason was ?family
time.? EEOC App. at 1035. Although C.R. England had been informed of his
HIV-positive status by this time, a request for time off for ?family time? would in
no way put the company on notice that he needed time off due to his illness, if he
in fact did. Furthermore, when C.R. England denied Mr. Watson's request
because it was not made two weeks in advance in accordance with company
policy, he did not object; more to the point, Mr. Watson did not indicate that the
time off was needed for his medical impairment?to the contrary, Mr. Watson
replied: ?Ok, just when ava[i]lable.? Id. at 1038.
Mr. Watson's second ?request? for time off occurred during an exchange
with a C.R. England employee over the Qualcomm system. During that
communication, which took place the day after the initial request, Mr. Watson
stated that ?[he] need[ed] home time, and [he] c[ould] not wait two more weeks.?
Id. at 426. Again, Mr. Watson gave no indication that he needed time off due to
his HIV status. As with his initial request, Mr. Watson's second demand for time
off was denied because he had failed to provide ?2 weeks notice.? Id. at 427.
Following this second denial, Mr. Watson informed the C.R. England
employee that he was leaving Omaha because couldn?t handle the ?stress level?
fact had a disability within the meaning of the ADA. See supra note 7.
[End Page 43]
and that he was ?dead heading to [his] family house in [Florida]?; he further
indicated that this was ?where [his] [doctor] is, and [he had] to see [his doctor].?
Id. at 428. This fleeting reference to his ?doctor??which was seemingly made in
conjunction with his unmanageable ?stress level,? not his alleged disability?is
insufficient to place the company on notice that he needed time off due to his
alleged disability (i.e., his HIV-positive status). In some circumstances, an
employee's reference to the need to see a physician may constitute significant
proof that the employee was seeking a reasonable accommodation, especially
when combined with an actual request for time off and some reference to the
employee's disability. However, we need not endeavor here to detail those
circumstances under which a physician reference would constitute such
significant proof. It suffices for us to observe that Mr. Watson's physician
reference does not come anywhere close to the mark.
In sum, Mr. Watson's two requests for home time?which were for ?family
time,? rather than his illness?and his after-the-fact, fleeting statement
mentioning a need to see his doctor, did not put C.R. England on notice that Mr.
Watson was requesting reasonable accommodation due to his HIV status.
Therefore, his requests did not trigger the company's duty under ADA
¬§ 102(b)(5). Accordingly, the district court did not err in granting summary
judgment in favor of C.R. England on this claim.
D. Mr. Watson's Retaliation Claim
[End Page 44]
Mr. Watson next asserts a claim of retaliation under the ADA, arguing that
C.R. England impermissibly retaliated against him by sending the debt he owed
under the Lease Agreement to a collection agency in response to the complaint he
filed with EEOC. 18 Under ADA ¬§ 503?which prohibits employer ?retaliation and
coercion???[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). In order to establish a prima facie case of retaliation under the ADA,
Mr. Watson must demonstrate ?(1) that he engaged in protected opposition to
discrimination, (2) that a reasonable employee would have found the challenged
Mr. Watson also asserts that C.R. England retaliated against him by
disseminating false information. However, he cites no evidence in support of this
accusation; in fact, his argument with regard to this claim?in its entirety?states
that ?Defendant England has disseminated false material regarding Plaintiff
Watson.? Watson Opening Br., No. 09-4217, at 48. Under the federal appellate
rules, an ?appellant's brief must contain . . . appellant's contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies.? Fed. R. App. P. 28(a)(9)(A) (emphasis added). ?Consistent
with this requirement, we routinely have declined to consider arguments that are
not raised, or are inadequately presented, in an appellant's opening brief.?
Bronson v. Swensen, 500 F.3d 1099
, 1104 (10th Cir. 2007); see also Exum v. U.S.
Olympic Comm., 389 F.3d 1130
, 1133 n.4 (10th Cir. 2004) (?Scattered statements
in the appellant's brief are not enough to preserve an issue for appeal.?). Because
Mr. Watson has failed to present any argument or authority in support of this
particular retaliation claim, we decline to further consider it on appeal. See
Gaither v. Aetna Life Ins. Co., 394 F.3d 792
, 810 (10th Cir. 2004) (?It is
well-settled in this Circuit that an issue listed, but not argued in the opening brief
[End Page 45]
action materially adverse, and (3) that a causal connection existed between the
protected activity and the materially adverse action.? Proctor, 502 F.3d at 1208
(10th Cir. 2007) (quoting Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193
, 1202 (10th Cir. 2006)) (internal quotation marks omitted).
Because Mr. Watson has offered no direct evidence of discrimination
regarding C.R. England's report of his debt to the collection agency, we analyze
his retaliation claim under the burden-shifting framework delineated in
McDonnell Douglas. Proctor, 502 F.3d at 1207?08. In this instance, Mr.
Watson's retaliation claim fails for two reasons: (1) he has not demonstrated a
causal connection between the protected activity and the materially adverse
action, and therefore he cannot make out a prima facie case; and (2) even if he
could make out a prima facie case of retaliation, C.R. England has put forth a
?legitimate, nondiscriminatory reason? for attempting to collect the debt, which
Mr. Watson has not shown is mere ?pretext masking discriminatory animus,? id.
(quoting Piercy, 480 F.3d at 1198) (internal quotation marks omitted).
First, under the evidence presented, Mr. Watson has not shown a ?causal
connection? between his filing of the EEOC complaint and the collection of his
debts owed under the Lease Agreement. A ?causal connection? between a
protected action and a subsequent adverse action can be shown through ?evidence
of circumstances that justify an inference of retaliatory motive, such as protected
conduct closely followed by adverse action.? Id. at 1208 (quoting Haynes, 456
[End Page 46]
F.3d at 1228) (internal quotation marks omitted). Although the record does not
include the precise amount of time that passed between the filing of the complaint
and the reporting of the debt, Mr. Watson acknowledges in his brief that the
submission of his debt to the collection agency ?occurred well over a year after
the initial dispute,? Watson Opening Br., No. 09-4217, at 48, which is too large of
a gap to raise an inference of retaliatory motive on its own, see, e.g., Proctor, 502
F.3d at 1208 (finding that a four-month gap between the protected action and the
alleged retaliatory action was ?too large a time gap to establish a causal
connection?); Piercy, 480 F.3d at 1198 (stating that ?an adverse employment
action that happened more than three months after the protected activity was not
entitled to a presumption of causation?).
If the adverse employment action was not ?very closely connected in time
to the protected activity??which, as Mr. Watson concedes, it was not in the
present case??the plaintiff must rely on additional evidence beyond temporal
proximity to establish causation.? Piercy, 480 F.3d at 1198 (quoting Coors
Brewing Co., 181 F.3d at 1179) (internal quotation marks omitted). The only
additional evidence presented by Mr. Watson was that the company failed to
abide by an arbitration provision contained in the ICOA and Lease Agreement.
However, he fails to explain how this establishes a causal connection between his
EEOC complaint and the alleged adverse action of sending his debt to a collection
agency, and we do not think that it does so. Because he offers no other evidence
[End Page 47]
to demonstrate the necessary connection, Mr. Watson has failed to establish a
prima facie case of retaliation.
In addition, even if Mr. Watson could make out his prima facie case, C.R.
England has offered a legitimate, non-discriminatory reason for reporting the debt
to a collection agency. Specifically, it has demonstrated that the amount charged
off was a ?just debt? that Mr. Watson ?genuinely owed? under the lease
agreement. C.R. England Br., No. 09-4217, at 46. Mr. Watson does not contest
this on appeal.
Because the company has put forth an acceptable justification for its
actions, the burden then shifted back to Mr. Watson to show that C.R. England?s
proffered reason was mere pretext. Proctor, 502 F.3d at 1208. As discussed
above, Mr. Watson can meet this burden ?by demonstrating ?such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.?? Coors
Brewing Co., 181 F.3d at 1179 (quoting Morgan v. Hilti, Inc., 108 F.3d 1319
1323 (10th Cir. 1997)). However, ?[m]ere conjecture that the employer?s
explanation is pretext is insufficient to defeat summary judgment.? Id.
In arguing that C.R. England acted with a discriminatory animus, Mr.
Watson states that ?Defendant England's actions can only be viewed as an
[End Page 48]
intimidation tactic to dissuade Plaintiff Watson from pursuing his ADA
complaint,? because the company did not abide by the arbitration provision.
Watson Opening Br., No. 09-4217, at 48. According to Mr. Watson, because the
company ?clearly waived [its] rights under the Leasing Agreement by not
requesting arbitration? within the one-year time limit contained in the agreement,
the company's continuing attempts to collect the debt?which he does not dispute
that he owes?can only be motivated by a discriminatory animus. Id.
We fail to see how this demonstrates pretext. In fact, Mr. Watson?s
assertion that the company's use of a collection agency is an ?intimidation tactic
to dissuade [him] from pursuing his ADA complaint? is undermined by the fact
that C.R. England notified him in April 2003 that it would ?pursue the
collection . . . through all legal channels including collections agencies,? EEOC
App. at 606, before he filed his initial complaint with the EEOC in August 2003.
Furthermore, although the Lease Agreement contained an arbitration provision, it
also provided that any ?default in the payment of any amount due? under the
agreement could be ?placed in the hands of an agency or attorney for collections
or legal action,? and that Mr. Watson would bear the cost of such collection.
EEOC App. at 337?47. Under these facts, Mr. Watson has not shown that C.R.
England's proffered reason for sending the debt to a collection agency was pretext
for discrimination?that is, he has not met his burden to show that C.R. England?s
legitimate, non-discriminatory justification is ?unworthy of belief.? Stover, 382
[End Page 49]
F.3d at 1071. Accordingly, C.R. England is entitled to judgment as a matter of
law on this claim, and the district court did not err in granting summary judgment
in its favor.
III. State Law Claims
A. Mr. Watson's Intentional Infliction of Emotional Distress Claim
Mr. Watson next argues that the district court erred in granting summary
judgment in C.R. England's favor on his intentional infliction of emotional
distress claim. 19
To state a claim for intentional infliction of emotional distress,
a party must plead facts indicating that the defendant
?intentionally engaged in some conduct toward the plaintiff, (a)
with the purpose of inflicting emotional distress, or, (b) where
any reasonable person would have known that such would result;
and his actions are of such a nature as to be considered
outrageous and intolerable in that they offend against the
generally accepted standards of decency and morality.?
Anderson Dev. Co. v. Tobias, 116 P.3d 323, 338 (Utah 2005) (quoting Bennett v.
Jones, Waldo, Holbrook & McDonough, 70 P.3d 17, 30 (Utah 2003)); accord
Cabaness v. Thomas, 232 P.3d 486, 499 (Utah 2010). ?[I]t is for the court to
determine, in the first instance, whether the defendant's conduct may reasonably
be regarded as so extreme and outrageous as to permit recovery.? Cabaness, 232
As noted, Mr. Watson does not contest on appeal the district court?s
decision granting summary judgment in favor of C.R. England on his negligent
infliction of emotional distress claim. See supra note 6.
[End Page 50]
P.3d at 499 (quoting Gygi v. Storch, 503 P.2d 449, 450 (1972)) (internal quotation
In order for conduct to be considered ?extreme or outrageous,? it ?must
evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair.?
Franco v. Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 207 (Utah
2001). A defendant's intentional behavior does not necessarily meet this standard
?merely because it is tortious, injurious, or malicious, or because it would give
rise to punitive damages, or because it is illegal.? Id. Furthermore, in the
employment context?as this case is??liability under the tort of intentional
infliction of emotional distress . . . may be found only where the conduct
complained of has been so extreme in degree as to go beyond all possible bounds
of decency, so as to be regarded as atrocious and utterly intolerable in a civilized
society.? Oman v. Davis Sch. Dist., 194 P.3d 956, 970 (Utah 2008).
In granting summary judgment in favor of C.R. England, the district court
concluded that the company's ?conduct in presenting Watson's trainee with the
acknowledgment form disclosing [his] HIV status may not be reasonably regarded
as extreme or outrageous.? EEOC v. C.R. England, No. 2:06-CV-00811BSJ, slip
op. at 27. We agree. Although some might view C.R. England's use of the HIV-
acknowledgment form as ?unreasonable? or ?unfair,? we would be hard-pressed
to conclude that its actions qualify as ?revulsi[ve]? or ?so extreme in degree as to
go beyond all possible bounds of decency, so as to be regarded as atrocious and
[End Page 51]
utterly intolerable in a civilized society.? Franco, 21 P.3d at 207. Because Mr.
Watson cannot satisfy this element of his intentional infliction of emotional
distress claim, C.R. England is entitled to judgment as a matter of law.
Accordingly, the district court did not err in granting summary judgment in C.R.
England's favor on this claim.
B. Mr. Watson's Invasion of Privacy Claim
Mr. Watson also brings a second claim under Utah law?invasion of
privacy?based on a theory of public disclosure of private embarrassing
information. Mr. Watson asserts that C.R. England invaded his privacy when it
disclosed his HIV-positive status to a potential trainee and other C.R. England
employees. To prevail on his claim for invasion of privacy based on public
disclosure of private information, Mr. Watson must establish three elements:
(1) the disclosure of the private facts must be a public disclosure
and not a private one;
(2) the facts disclosed to the public must be private facts, and not
(3) the matter made public must be one that would be highly
offensive and objectionable to a reasonable person of ordinary
Shattuck-Owen v. Snowbird Corp., 16 P.3d 555, 558 (Utah 2000). Under the first
element, ?public disclosure? has been interpreted to ?mean that the matter is
made public, by communicating it to the public at large, or to so many persons
that the matter must be regarded as substantially certain to become one of public
[End Page 52]
knowledge.? Id. (quoting Restatement (Second) of Torts ¬§ 652D cmt. a (1977))
(internal quotation marks omitted). On the other hand, ?communicating a private
fact ?to a small group of persons? . . . does not constitute public disclosure.? Id.
at 558?59 (quoting Restatement (Second) of Torts ¬§ 652D cmt. a).
As a matter of law, summary judgment was properly entered in favor of
C.R. England because the disclosure to one potential trainee and a handful of C.R.
England employees does not constitute ?public disclosure.? See id. (concluding
that disclosure to twelve or thirteen people did not constitute public disclosure).
Accordingly, the district court did not err in entering judgment in favor of C.R.
England on this claim.
Based on the foregoing, we AFFIRM the district court's grant of summary
judgment in favor of C.R. England on all of EEOC's and Mr. Watson's claims. 20
EEOC's pending motion to seal its Opening Brief and specified
appendices is GRANTED.
[End Page 53]