United States District Court, W.D. Oklahoma
ORDER
DAVID
L. RUSSELL UNITED STATES DISTRICT JUDGE.
Before
the Court is the Motion for Summary Judgment filed by
Defendant Newkirk Public Schools. (Doc. No. 46). Plaintiff
responded in opposition to the motion and Defendant filed a
Reply in support of its position (Doc.Nos. 52 and 53).
Plaintiff's Amended Complaint included claims of
discrimination and retaliation under the Americans with
Disabilities Act (“ADA”), the Oklahoma
Anti-Discrimination Act (“OADA”), the Age
Discrimination in Employment Act (“ADEA”), and
the Family Medical Leave Act. (“FMLA”). The
parties jointly agreed to dismissal of Plaintiff's FMLA
claim on December 26, 2018 (Doc.No. 31). On November 18,
2019, after the summary judgment motion was fully briefed,
the parties filed a Joint Stipulation of Dismissal with
Prejudice further reducing the scope of Plaintiff's
claims. As the Court interprets the parties' most recent
filing, the only remaining claims are in Counts I and III:
Plaintiff's assertion that Defendant violated the ADA by
paying her lower wages than similarly situated coaches of
athletes who were not disabled and that Defendant, in
retaliation for Plaintiff's EEOC charge alleging
associational disability discrimination, decided not to
rehire Plaintiff on a temporary contract for the 2017-2018
school year. (Doc.No. 55 and Doc.No. 12, ¶¶ 48, 66,
and 73).[1] Upon consideration of the parties'
submissions in light of the stipulations, the Court finds as
follows.
Summary
judgment is proper where the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, show there is no genuine issue as to any
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c). The presence of a
genuine issue of material fact defeats the motion. An issue
is “genuine” if the evidence is significantly
probative or more than merely colorable such that a jury
could reasonably return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” if proof thereof
might affect the outcome of the lawsuit as assessed from the
controlling substantive law. Id. at 249.
Plaintiff
was employed by Independent School District No. 125 from 1990
until May 2016 on a Certified Employee Contract as a
speech-language pathologist and special education teacher.
During her tenure her salary was paid in accordance with the
schedule for teachers with her years of experience and she
was paid the 5% salary differential mandated by state law for
special education instructors. Ms. Shurtz also served as the
Special Olympics coach for Newkirk, and it is this role that
brings her before the Court. Ms. Shurtz contends that,
because of her association with disabled students, unlike
coaches for other sports, such as football and cheerleading,
she was not paid an extra-duty stipend for her work with the
Special Olympics athletes. She contends this disparity was
the result of associational discrimination, which under
certain circumstances is prohibited by the ADA.
Due to
her dissatisfaction with the lack of extra-duty pay, on June
19, 2015, Plaintiff filed a Charge of Discrimination (Doc.
No. 46-12). Therein she alleged that beginning on or about
May 15, 2015, she was paid lower wages than similarly
situated colleagues.[2] For the 2015-16 school year Plaintiff
continued her fulltime employment with the District
performing the same roles. She alleges that, starting on
March 2, 2016 and continuing through the spring of that year,
the principal of her assigned school, Jeff Wilson, inquired
whether she would be retiring that year. Wilson allegedly
suggested that Plaintiff could continue as a special
education coach for a stipend similar to that received by the
football and cheer coaches. As a result of the inquiries,
which Plaintiff contends were made on multiple occasions, she
amended her June 2015 EEOC charge on July 5, 2016, alleging
that Mr. Wilson acted at the direction of then-superintendent
Stanley and that he hinted on April 5, 2016, that Mr. Stanley
wanted her to retire.[3] She asserted she was being discriminated
against on the basis of her age or in retaliation for her
prior EEOC charge.[4]
Thereafter,
Plaintiff continued her conversations regarding retirement
and part-time work with the District, presenting an offer to
Mr. Barnes on July 12, 2016, “Shurtz Modified Job
Status/Duties Beginning 2016-2017 School Year.” (Doc.
No. 46-4, p. 1). Her proposal indicated that her modified
status would continue for each school year through 2018-19,
set out a salary and the number of days she was amenable to
working and in what capacity, i.e. Special Olympics and
Speech Therapist Support. Id. In response, Mr.
Barnes informed Plaintiff that her proposal could not be
accepted because the school could not give multiple year
contracts, in addition, she was required to work 55% of the
year to receive medical benefits, meaning she needed to work
at least 90 days, not the 60 she suggested. Id. p.
3. In her response, Plaintiff indicated she had been offered
a three-year agreement, although she could not recall by
whom; she was open to a one-year agreement. She made
suggestions to ensure her eligibility for retirement
benefits, which proposal included not retiring. She indicated
she planned to return full-time unless she and the District
came to an agreement. Id. p. 5. Plaintiff and the
District apparently came to an agreement and she submitted
her resignation of her fulltime position in an undated
letter. (Doc.No. 46-5).[5] The agreement resulted in a temporary
contract for 72 days for a salary of $21, 000.00. She
acknowledged no continuing contractual rights and that the
contract terminated at the end of the school year.
Plaintiff
apparently performed the services under the temporary
contract without incident, but on April 11, 2017
Superintendent Barnes informed Ms. Shurtz that she would not
receive a contract for the 2017-2018 school year. Plaintiff
testified that she asked him why, given his prior promise to
keep her as long as he was there. Barnes allegedly responded,
“that was then and this is now.' (Doc.No. 46-1, p.
113). Approximately five months later, on September 22, 2017,
Plaintiff filed an Amended Charge of Discrimination asserting
that Barnes's decision not to rehire her was in
retaliation for her various EEOC filings. To that end, in
support of her position that summary judgment is
inappropriate, Plaintiff includes the declaration of Ronald
Schieber, declaring that he inquired of Mr. Barnes why Ms.
Shurtz would not be returning to the District. Mr. Barnes
allegedly responded that he did not rehire Plaintiff because
he was tired of her” lawsuit, ” including the
time and expense it involved.[6]
As a
result of the above, Plaintiff alleges that Defendant
violated the antidiscrimination and anti-retaliation
provisions of the Americans with Disabilities Act
(“ADA”). Defendant seeks summary judgment on both
of these claims.
The ADA
prohibits “excluding or otherwise denying equal jobs or
benefits to a qualified individual because of the known
disability of an individual with whom the qualified
individual is known to have a relationship or
association.” 42 U.S.C. § 12112(b)(4). To
determine the viability of an ADA association claim in the
absence of direct evidence of discrimination, the Court
applies the McDonnell Douglas burden-shifting
scheme. See Den Hartog v. Wasatch Acad., 129 F.3d
1076, 1082 (10th Cir.1997). To establish a prima facie case
of ADA association discrimination, Plaintiff must show that
she was “qualified” for the job at the time of
the adverse employment action, that she was subjected to
adverse employment action, that she was known by her employer
at the time to have an associate with a disability; and the
adverse action occurred under circumstances raising a
reasonable inference that the associate's disability was
a determining factor in the employer's decision.
Id. at 1085. As the Court noted in its Order denying
the Motion to Dismiss as to Plaintiff's ADA claim,
generally, there are three categories of associational
discrimination. (Doc. No. 33, p. 5). The Tenth Circuit has
recognized three categories of associational discrimination:
“[The categories] can be illustrated as follows: an
employee is fired (or suffers some other adverse personnel
action) because (1) (“expense”) his spouse has a
disability that is costly to the employer because the spouse
is covered by the company's health plan; (2a)
(“disability by association”) the employee's
homosexual companion is infected with HIV and the employer
fears that the employee may also have become infected,
through sexual contact with the companion; (2b) (another
example of disability by association) one of the
employee's blood relatives has a disabling ailment that
has a genetic component and the employee is likely to develop
the disability as well (maybe the relative is an identical
twin); (3) (“distraction”) the employee is
somewhat inattentive at work because his spouse or child has
a disability that requires his attention, yet not so
inattentive that to perform to his employer's
satisfaction he would need an accommodation, perhaps by being
allowed to work shorter hours.”
Trujillo v. PacifiCorp., 524 F.3d 1149, 1155 (10th
Cir.2008) (quoting Larimer v. Int'l Bus. Machs.
Corp., 370 F.3d 698, 700 (7th Cir.2004)). Clearly the
alleged failure to offer extra-duty pay for coaching the
Special Olympics does not fall into any of these categories.
Furthermore, although the Court's Order on the Motion to
Dismiss cited an arguably broader interpretation of the
associational discrimination set forth by the EEOC, nothing
in those interpretations supports extension of §
12112(b)(4) to the facts supported by the evidence herein.
(See Doc. No. 33, pp. 6-7). Here, Defendant hired
Plaintiff specifically to work with children in special
education, thus the scenarios anticipated by the EEOC and the
extant caselaw are simply inapplicable.
Furthermore,
even if Plaintiff could establish a prima facie case of
associational discrimination, Defendant has articulated a
legitimate non-discriminatory basis for not providing
extra-duty pay for Special Olympics. Plaintiff admits that
extra-duty pay for teachers was negotiated between the
teachers' association and the Board, and that
association, which bargained on behalf of teachers like Ms.
Shurtz, never sought extra-duty pay for the otherwise
volunteer position.[7] Plaintiff offers no evidence or argument
that this explanation is pretextual. Defendant is entitled to
summary judgment on Plaintiff's ADA claim.
Retaliation
is prohibited by the ADA-under which “[n]o person shall
discriminate against any individual because . . . such
individual made a charge, . . . under [the ADA].” 42
U.S.C. § 12203(a)). Plaintiff filed three EEOC charges,
asserting therein that she was subjected to discrimination in
violation of the ADA, on the basis of associational
discrimination, and her age, premised on the inquiries into
whether she intended to retire. Plaintiff contends that the
decision not to offer her a temporary contract for the
2017-2018 school year was in retaliation for the first two
charges she filed. Defendant argues Plaintiff cannot
establish a prima facie case of retaliation and therefore the
Court should enter summary judgment in its favor.
Defendant's
motion approached the retaliation claim under the same
burden-shifting analysis applicable to Plaintiff's ADA
discrimination claim. Plaintiff's retaliation claim,
however, is supported by direct evidence linking
Plaintiff's EEOC charges to the decision not to re-hire
her for the upcoming school year, specifically the statement
of Ronald Schieber relaying Mr. Barnes' alleged statement
that the “lawsuits” were the reason Ms. Shurtz
was not returning. See Twigg v. Hawker Beechcraft
Corp., 659 F.3d 987, 1000 n. 8 (10th Cir. 2011)(noting
that direct evidence is usually impossible to find and
limited to admissions by the decision maker, i.e. “I
fired him because he was too old.”)(citations omitted).
Where, as here, a plaintiff offers direct evidence of
...