GLENN C. HANNI, P.C.
PETER H. BARLOW
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ANDREW D. DAY
PETER H. CHRISTENSEN57
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ROBERT L. JANICKI
LORI A. JACKSON
GREGORY N. GUNN
A PROFESSIONAL CORPORATION
SANDY, UT 84070
T : (801) 532-7080
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WWW.STRONGANDHANNI.COM
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PAUL W. HESS
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H. BURT RINGWOOD
WILLIAM B. INGRAM
CATHERINE M. LARSON
RYAN P. ATKINSON
KRISTIN A. VANORMAN
JENNIFER R. CARRIZAL
KENT M. BROWN
JEREMY G. KNIGHT4
4
4
1 ALSO MEMBER CALIFORNIA BAR
2 ALSO MEMBER COLORADO BAR
3 ALSO MEMBER DISTRICT OF COLUMBIA BAR
4 ALSO MEMBER IDAHO BAR
5 ALSO MEMBER OREGON BAR
6 ALSO MEMBER WASHINGTON BAR
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ESTABLISHED 1888
______
GORDON R. STRONG
(1909-1969)
JASON L. DEFOREST
7
JESSICA J. JOHNSTON
February 3, 2014
PRIVILEGED AND CONFIDENTIAL
SUBMITTED FOR PURPOSES OF RESOLUTION OF CHARGE ONLY
SENT VIA EMAIL AND U.S. MAIL
Matt White
mattwhite@utah.gov
Utah Antidiscrimination & Labor Division
160 East 300 South, 3rd Floor
P.O. Box 146630
Salt Lake City, UT 85012
Re:
Kris Ridgeway v. American Preparatory Academy Accelerated School
UALD No. B3-0488 & EEOC No. 35C-2013-00488
Dear Mr. White:
This letter and accompanying document set forth the position of Respondent, American
Preparatory Academy Accelerated School (“APA”), with respect to the above-referenced charge
of discrimination (the “Charge”) filed by Kris Ridgeway (“Petitioner”).1
INTRODUCTION
In a discrimination charge filed by Petitioner on July 1, 2013, Petitioner alleges that APA
discriminated against her on the basis of her age, sex, and disability. She also asserts that she
was subject to unlawful retaliation. These violations allegedly occurred under the Age
Discrimination and Employment Act of 1967, the Americans with Disabilities Act of 1990, Title
VII of the Civil Rights Act of 1964, and the Utah Antidiscrimination Act of 1965, all as
amended.
This position stated is submitted on the basis of APA’s investigation of the facts to date. It is not an affidavit, nor
is it an intended to be used as evidence in any proceeding connected in any way with this charge. By submitting this
position statement, APA in no way waives its right to present different, new or additional facts or arguments based
upon subsequently acquired information or evidence. Additionally, this position statement is submitted to the EEOC
for the purposes of potential conciliation and/or resolution only. Accordingly, the statements contained herein are
privileged and confidential.
1
SALT LAKE CITY OFFICE — 3 TRIAD CENTER, SUITE 500, SALT LAKE CITY, UTAH 84180
SANDY OFFICE — 9350 SOUTH 150 EAST, SUITE 820, SANDY, UTAH 84070
Matt White
February 28, 2014
Page 2
APA’s thorough investigation into Petitioner’s claims confirms that there is no evidence
to support her allegations of age discrimination, sex discrimination, disability, or unlawful
retaliation of any form. Therefore APA respectfully requests that the charge be dismissed in its
entirety.
RESPONSE TO CHARGE
The representations made by Petitioner in the Charge include that she was and
discriminated against because of her age, sex, disability, and was retaliated against for reporting
this discrimination. See Charge of Discrimination. Petitioner’s specific allegations of
discrimination state:
I am a female, over the age of forty, and I have a disability of which this employer
is aware. During my employment I was subjected to ongoing discrimination
which includes, but is not limited to the following: I was told on more than one
occasion by management that my position should be performed by a younger
male. Male employees were allowed to wear jeans, but I was required to wear a
uniform. Male employees were given access to computer software (Google Docs),
but I was denied. I was the only employee who was denied a raise in 2012. I was
injured at work on or around June 4, 2012, which resulted in my disability.
Following this injury, my physician placed me on restrictions. This employer
made it difficult to attend medical appointments. On separate occasions I was told
that I would be fired as soon as I recovered from my injury, that I was getting old
and should look for another job, and that I would be replaced by a younger male. I
believe I was denied a reasonable accommodation from this employer, I
complained about this treatment but nothing changed. I suffered another work
injury on or around February 1, 2013. I was terminated on or around February 14,
2013.
I believe I was discriminated against because of my age, my gender, and my
disability. I also believe I was subjected to unlawful retaliation. I believe the
actions of this employer are in violation of the Age Discrimination in
Employment Act of 1957, the Americans with Disabilities Act of 1990, Title VII
of the Civil Rights Act of 1964, and the Utah Anti-discrimination Act of 1985, all
as amended.
See Charge of Discrimination.
APA denies these statements in full and summarizes its response to the Charge of
discrimination below:
BACKGROUND FACTS
APA, located in Draper, Utah, has been in operation since 2003. It is founded and run by
females over 40 years of age. Of the 29 directors or other key management positions, 16 are held
by females and 13 of those are near or over 40. Of the 13 males holding key positions, 6 are
Matt White
February 28, 2014
Page 3
over 40. APA has 354 employees total, of which 277 are females, and 86 are over 40. APA’s
turnover rate is very low; a turnover rate of only 2.4% is indicative of a pleasant and supportive
work environment.
APA believes that all persons are “entitled to equal employment opportunities and do[es]
not discriminate against their employees or applicants for employment because of race, color,
religion, national origin, age, sex, veteran status, pregnancy, child birth, pregnancy related
conditions, disability or on any other legally protected basis.” See [4].
In regards to employing individuals with disabilities, APA adheres to the Americans
With Disabilities Act (“ADA”), and acknowledges that it is required to provide “reasonable
accommodations for persons with disabilities who are otherwise qualified for the job” [disclosed
to or otherwise known by APA]. APA provides a dispute resolution procedure for any complaint
alleging discriminatory or harassing practices at work. Claims of discrimination should be
reported to the manager/supervisor, or any other manager, or to the next level of management.
APA asserts that it will not retaliate against employees for filing complaints, cooperating in
investigations, and “will not tolerate or permit retaliation by management, employees,
coworkers, or non employees such as clients, vendors and contractors.” [4 at page 20]
Complaints of harassment will be investigated under APA’s Policies and Procedures, and
provides for escalation of the complaint if the complaining individual is unsatisfied with the
result.
Petitioner was a member of APA’s operations staff, and was the highest paid, non
supervisory member of that staff. Petitioner was directly supervised by Tim Evancich, Chief
Operating Officer of APA. Petitioner and a team of three other employees provided custodial
services to APA. Of those employees three are females over 40, and one is male.
On January 20, 2012, Petitioner received and signed a written administrative notice that
she was failing to meet expectations at her job. Specifically, the notice informed Petitioner that
“there has been a dramatic decline in your contributions to our team’s energy, enthusiasm and
productivity.” [6] “There have been many on the team who have approached me concerned
about your negativity and have expressed a high level of frustration and apprehension while
working with you.” Petitioner was informed that “[t]his needs to be corrected immediately and
permanently.”
Then, on September 21, 2012, Petitioner was informed through a similar written notice
that,
There have been many on the ops team and throughout the organization who have
approached me expressing concern[] about your negativity and their high level of
frustration and apprehension while working with you. EVERY ONE of the other
four custodians adamantly state that they will either definitely leave or will
seriously consider leaving if they are forced to work with you . . . These are
alarming statements [from] an organization that has intentionally nurtured an
encouraging and positive culture.” [6]
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February 28, 2014
Page 4
APA continued that “[b]eing the kind of person who brings positive energy to the
organization, not drain energy from it, is an essential job function for everyone in the
organization.” [6] APA acknowledged that fulfilling this job function will “require an
intentional, focused, energetic and sustained effort on your part to change your behavior pattern
to meet this expectation, but that is what will be required to remain a part of our organization.”
Id. The notice ended that “[t]his is your final chance to immediately correct this behavior. Id.
With these written warnings pending, Petitioner was terminated on February 14, 2013 as
part of “a reduction in force due to bringing on contracted help to clean the building in the
evening.” [6]. Other employees terminated under this reduction in force include Kenneth Norris,
Dane Austin, Stacey Lundgren, and Andrew Blackwell. [10]
AGE DISCRIMINATION
The Age Discrimination in Employment Act ("ADEA'') of 1967, 29 U.S.C.S. § 621 et
seq., makes it unlawful for an employer to take adverse action against an employee because of
such individual's age. 29 U.S.C.S. § 623(a). Unlike Title VII, the ADEA's text does not allow a
plaintiff to establish discrimination by simply showing that age was a motivating factor. The United
States Supreme Court has never held that this burden of shifting framework applies to ADEA claims.
When conducting statutory interpretation, the court "must be careful not to apply rules applicable
under one statute to a different statute without careful and critical examination." Fed. Express Corp.
v. Holowecki, 552 U.S. 389, 393 (2008).
The United States Supreme Court has held that the ADEA does not authorize a mixedmotives age discrimination claim. Gross v. FBL Fin. Servs., 129 S. Ct. 2343, 2350 (2009). The
ADEA provides, in relevant part, that "[i]t shall be unlawful for an employer ... to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual's age."
29 U.S. C.§ 623(a)(1) (emphasis added).
The words "because of” mean "by reason of: on account of." Thus, the ordinary meaning of
the ADEA' s requirement that an employer took adverse action "because of” age is that age was the
"reason" that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610
(1993). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a
plaintiff must prove that age was the "but-for" cause of the employer's adverse decision. See Bridge
v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S. Ct. 2131, 2141 (2008) (recognizing the phrase,
"by reason of," requires at least a showing of "but for" causation (internal quotation marks omitted));
Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63-64, and n. 14, 127 S. Ct. 2201, 167 L. Ed. 2d
1045 (2007) (observing that "[i]n common talk, the phrase 'based on' indicates a but-for causal
relationship and thus a necessary logical condition" and that the statutory phrase, "based on," has the
same meaning as the phrase, "because of' (internal quotation marks omitted)).
Petitioner’s Charge includes only two allegations regarding her age: first, that she was told
that her position should be performed by a younger male, and second, that she was allegedly “getting
old.” Charge. Neither of these statements are asserted as the basis of her termination. Petitioner
does not allege this. And, the facts show that Petitioner was not terminated because of her age, but
was rather terminated as a result of a reduction in force. At the same time Petitioner was terminated,
Matt White
February 28, 2014
Page 5
four other employees were let go, including individuals in protected and non-protected classes.
Finally, the majority of employees at APA are near or over the age of 40, which indicates that APA
has no issues hiring and employing individuals over 40.
SEX DISCRIMINATION
The Tenth Circuit recognizes the Supreme Court’s three-part paradigm for evaluating
Title VII disparate treatment claims: “First, the plaintiff must establish a prima facie case of
discrimination. Second, if the plaintiff carries h[er] initial burden, the burden shifts to the
defendant to articulate some legitimate nondiscriminatory reason for the challenged workplace
decision. Third, if the defendant carries this burden, the plaintiff has an opportunity to prove that
the legitimate reasons the defendant offered were merely a pretext for discrimination.” Notari v.
Denver Water Dept., 971 F.2d 585, 588 (10th Cir. 1992).
In regards to her sex, Petitioner asserts that she was (1) told her job should be performed
by a male; (2) that male employees were allowed to wear jeans, but she was required to wear a
uniform; (3) that male employees were given access to computer software such as Google Docs;
(4) that she was the only employee denied a raise; and (5) that she would be replaced by a
younger male. Charge. These allegations do not meet the requirements that Petitioner
demonstrate a prima facie case of discrimination. Specifically, the testimony of Petitioner’s
coworkers overwhelmingly indicates:
1. No other current or former employees or supervisors ever heard anyone tell Petitioner
that her job should be performed by a male;
2. APA instituted a uniform dress code policy, which Petitioner failed to adhere to,
while other employees (including male employees) did follow;
3. All employees were given access to unlocked computers, including Petitioner, and
that Petitioner received training from an IT professional on the use of Google Docs;
and [7/9]
4. Petitioner was not the only employee who was not given a raise; she was the highest
paid operations employee and had a reduction in duties without receiving a decrease
in pay in 2012; and
5. Petitioner was terminated as part of a reduction in force along with several other
employees. [6]
Additionally, even if Petitioner can demonstrate that she was terminated for a reason
unrelated to APA’s reduction in force—which she cannot—the documents show that Petitioner’s
performance was detrimental to the work environment and that Petitioner was notified of her
failure to perform the essential tasks of the position. [4]
Based on the testimony of coworkers, Petitioner’s history of failing to perform, and the
standard reduction in force that led to Petitioner’s termination, Petitioner has failed to meet the
elements of a Title VII claim.
DISABILITY
Matt White
February 28, 2014
Page 6
The ADA, enacted in 1990, expanded liability for disability discrimination. Title I of the
ADA, codified at 42 U.S.C.S. § 12112, prohibits covered employers from discriminating against
individuals on the basis of known disability in the workplace regardless of their status as
recipients of federal funding.
The general rule under the ADA is that “no covered entity shall discriminate against a
qualified individual with a disability because of the disability of such individual … .” 42 U.S.C.
§ 12112(a). Because Petitioner alleges employment discrimination under the ADA, she bears the
initial burden of establishing a prima facie case. See Ryan v. Grae & Rybicki, P.C., 135 F.3d
867, 869 (2d Cir. 1998). To establish a prima facie case of discrimination under the ADA,
Petitioner must show that: (1) her employer is subject to the ADA; (2) she was disabled within
the meaning of the ADA; (3) she was otherwise qualified to perform the essential functions of
her job, with or without reasonable accommodation; and (4) she suffered adverse employment
action because of his disability. Zwygart v. Bd. of County Comm'rs, 483 F.3d 1086, 1090 (10th
Cir. 2007).
Petitioner has not fulfilled the legal elements of a prima facie case of disability
discrimination. First, Petitioner did not have a disability within the meaning of the ADA and
second, she did not suffer adverse employment action because of her disability.
1.
Petitioner Was Not Disabled Within the Meaning of the ADA.
The first element of a discrimination claim under the ADA is proof that the petitioner has
a qualifying “disability” under the statute. The ADA defines “disability” as “(A) a physical or
mental impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C.A. § 12102(2).
The term “major life activities” is not defined in the statute, but a regulation promulgated
by the Equal Employment Opportunity Commission defines it as “functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(i). Presumably, Petitioner asserts that she was injured on June 4,
2012 at work, was placed on restriction by her physician, that APA made attending medical
appointments difficult, and that she was told she would be fired when she recovered from her
injury.
A physical or mental impairment is substantially limiting if the affected individual is:
(i) Unable to perform a major life activity that the average person in the general
population can perform; or (ii) Significantly restricted as to the condition, manner
or duration under which an individual can perform a particular life activity as
compared to the condition, manner, or duration under which the average person in
the general population can perform that same major life activity.
Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999)
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February 28, 2014
Page 7
The evidence shows that Petitioner’s claimed condition was pain in her back. However,
Petitioner does not claim, and cannot show, that her injuries substantially limited her ability to
work.
While her back may have been injured, there is simply no evidence that Petitioner was
significantly restricted in her ability to do her job. For example, she cannot blame her decline in
her contribution to her team’s energy, enthusiasm and productivity on her alleged back
condition, nor can she blame her significant amount of time spent talking and walking “with very
little real and substantive custodial work product” on her injury. [6] Accordingly, Petitioner has
not alleged a disability under the ADA and has failed to make a prima facie case.
2.
Petitioner Was Not Terminated Because of Her Disability.
The final element of Petitioner’s prima facie showing is causation. See 42 U.S.C. §
12112(a) (2006) (HN13 “No covered entity shall discriminate against a qualified individual with
a disability because of the disability of such individual in regard to . . . [the] discharge of
employees . . . .” (emphasis added)) (amended 2009). In other words, Petitioner is required to
show that but for her disability, she would not have been terminated. See Lewis v. Humboldt
Acquisition Corp., F.3d , 2012 U.S. App. LEXIS 10618, 2012 WL 1889389 (6th Cir. May
25, 2012) (en banc); Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012). This “but-for”
cause is the standard to which any court would hold the petitioner.
Because she had experienced a health condition before her termination, Petitioner
concludes that she was actually terminated because of this condition. However, the evidence is
clear that the decision to terminate the Petitioner was a result of APA’s reduction in force.
Petitioner can offer no evidence to contravene this assertion and it is fatal to her obligation to
provide a prima facie discrimination claim. Even if Petitioner can demonstrate that she was
terminated for a reason unrelated to APA’s reduction in force, as noted before the documents
show that Petitioner’s performance was detrimental to the work environment and that Petitioner
was notified of her failure to perform the essential tasks of the position. [4] Based on the
testimony of coworkers, Petitioner’s history of failing to perform, and the standard reduction in
force that led to Petitioner’s termination, Petitioner has failed to meet the elements of an ADA
claim.
3.
Petitioner’s Claims Do Not Survive the McDonnell Douglas Burden Shifting Analysis.
Even if Petitioner were to provide enough evidence to establish a prima facie case, her
claims of discrimination under the ADA would require application of the burden-shifting
analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under the McDonnell Douglas analysis, once Petitioner
has established a prima facie case of discrimination, the burden shifts to the employer to provide
a legitimate, nondiscriminatory reason for termination of employment. See id. If the employer
does provide a reason, then Petitioner must show that the reason is pretextual.
Petitioner has both failed to make a prima facie case of discrimination under the ADA, or
to demonstrate that the legitimate, nondiscriminatory reason given for her termination is
Matt White
February 28, 2014
Page 8
pretextual. Though it is far from clear, Petitioner’s charge appears to allege evidence of pretext
by asserting (incorrectly) that she was treated differently than other employees. To show
disparate treatment, a plaintiff must show that she was treated differently than other similarly
situated employees who violated work rules of comparable seriousness. Elmore v. Capstan, Inc.,
58 F.3d 525, 529-30 (10th Cir. 1995). There is no evidence that any other similarly situated
employee was treated differently than Petitioner. As such, Petitioner can offer no evidence that
the reason for her termination was pretext and the real reason for her termination was
discrimination.
RETALIATION DISCRIMINATION FOR PROTECTED ACTION
Petitioner claims that she was also subject to retaliation for reporting discrimination.
Conclusory allegations to that effect are insufficient as a matter of law. “Title VII prohibits
retaliation against individuals who oppose discriminatory employment practices or participate in
complaints or investigations of employment practices prohibited by Title VII.” See 42 U.S.C. §
2000e-3(a); see also Faragalla v. Douglas County School District RE 1, 2011 U.S. App. LEXIS
604 (10th Cir., Jan 12, 2011) at *13-14 (A plaintiff makes out a] prima facie case of retaliation
by showing (1) she “engaged in protected opposition to discrimination”; (2) she “suffered an
adverse employment action”; and (3) “there is a causal connection between the protected activity
and the adverse employment action”); Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188
(10th Cir. 2002) (quotation omitted); (holding absence of reference to unlawful discrimination
can preclude retaliation claim “because an employer cannot engage in unlawful retaliation if it
does not know that the employee has opposed . . . a violation of Title VII.” Id.).
Petitioner has provided no specific allegations that she reported the alleged
discrimination to any employees or supervisors. The records do not reflect any allegation that
discrimination was reported. Petitioner does not identify any individuals to whom she allegedly
reported discrimination. Petitioner has failed entirely to provide any allegations regarding
retaliation other than a conclusory statement that she allegedly made the complaint.
CONCLUSION
Petitioner’s claim cannot withstand scrutiny under the prevailing legal standards.
Petitioner was terminated based on a reduction in the staff, her allegations regarding
discrimination are refuted by numerous employees and supervisors. And even if Petitioner can
show she was not terminated as a result of business decision to reduce the operations workforce,
Petitioner received numerous warnings and write ups regarding her inadequate performance and
therefore her charge is discrimination should be dismissed.
Should you need any additional information, please do not hesitate to contact me.
Very Truly Yours,
STRONG & HANNI
Matt White
February 28, 2014
Page 9
______________________
Brian C Johnson
Attorney for Respondent
BJ:cb