Angell v. Fairmount Fire Prot. Dist.

• Decision Date: 05 November 2012
• Docket Number: Civil Action No. 11–cv–03025–CMA–CBS.
• Citation: 907 F.Supp.2d 1242
• Parties: Don ANGELL, Plaintiff, v. FAIRMOUNT FIRE PROTECTION DISTRICT, Defendant.
• Court: U.S. District Court — District of Colorado

907 F.Supp.2d 1242

Don ANGELL, Plaintiff,

v.FAIRMOUNT FIRE PROTECTION DISTRICT, Defendant.

Civil Action No. 11–cv–03025–CMA–CBS.

United States District Court, D. Colorado.

Nov. 5, 2012.

John R. Olsen, Olsen Firm, Niwot, CO, for Plaintiff.

Amark C. Overturf, Mary Kathryn Strauss, Overturf McGath Hull & Doherty, P.C., Denver, CO, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

CHRISTINE M. ARGUELLO, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. # 15.) In this case, Plaintiff brings three employment-related claims: (1) a claim under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a); (2) a common-law tort claim for retaliation, for filing a claim for benefits under the Workmen's Compensation Act; and (3) a constitutional Due Process claim. (Doc. # 10, ¶¶ 3–4.)

I. BACKGROUND

The following facts are undisputed, unless otherwise noted.

Plaintiff Don Angell was the fire chief of the Fairmount Fire Protection District (“FFPD”), located in Golden, Colorado, when he was terminated on March 31, 2011. (Doc. 10, ¶ 8; 15, ¶ 1.) FFPD is governed by a five-member Board of Directors (“the Board”). (Doc. # 10, ¶ 12.) As a source of additional revenue, FFPD participated in “prescribed burns”; FFPD would receive compensation for providing personnel and equipment to burn agricultural and ranching lands. (Doc. # 15, ¶ 2.) FFPD participated in these prescribed burn projects since at least 2008. ( Id., ¶ 3.)

At an August 26, 2009 Board meeting, Plaintiff presented a new business venture to the Board, in which FFPD would conduct prescribed burns in Nebraska, Kansas, and Oklahoma, with an entity called “Up in Smoke” (“UIS”). ( Id., ¶ 4.) At that Board meeting, Plaintiff told the Board he would have FFPD's attorney, Jim Petrock (“Petrock”) “look things over and come up with an agreement for both parties.” ¹ ( Id.; see also Doc. # 15–1 at 4.) The Board minutes stated that “part of the cost of this venture would be the need to purchase a mower and tiller at an approximate cost of $20,000.00 ... the Board unanimously voted to approve the purchase of the mower [and] tiller and move forward to pursue this joint venture for [p]rescribed [burn] opportunities with Up in Smoke.” (Doc. # 15–1 at 4.) Since at least late 2009 and early 2010, FFPD conducted prescribed burns with UIS, and incurred expenses for the prescribed burn operations. (Doc. # 15, ¶ 8.) However, Petrock did not draft an agreement with UIS, and an agreement was never signed by UIS or FFPD. (Doc. 15, ¶ 6; 15–4 at 2.) Additionally, FFPD never received payment for the work it performed with UIS,² and the project ultimately resulted in a loss to the FFPD of approximately $208,000. (Doc. 15–8 at 6; 20–4 at 2; 20–5 at 2.)

Plaintiff was diagnosed with cancer in September of 2010. (Doc. # 15, ¶ 16.) He filed a workers' compensation claim on October 17, 2010, relating to his cancer. (Doc. # 15–29.) Additionally, he underwent multiple surgeries for his cancer. (Doc. # 20, ¶ 7.) At some point prior to being fired, ³ Board Chairman Craig Corbin (“Corbin”) instructed Plaintiff he “could not go out on [emergency] calls.” ⁴ (Doc. 20–2, ¶ 13; 20–26 at 3.)

At a March 9, 2011 Board meeting, the Board and Plaintiff again discussed the prescribed burn project with UIS. (Doc. # 15–8 at 5–8.) According to the Board minutes of that meeting, Plaintiff admitted to the Board that he “ ‘blew’ the prescribed fire for the 2010 season and that the ‘buck stops with him on everything that happens with this District.’ ” ( Id. at 5.) Additionally, the Board minutes reflect that Plaintiff told the Board that FFPD “had a contract” with UIS, and that the contract was a written contract; later, when Board Member Craig Corbin (“Corbin”) stated he didn't remember signing a contract, Plaintiff told the Board that “we discussed it, we reviewed it, we had it and we even had it in the minutes and so forth, a simple one page agreement.” ( Id. at 5, 6.)

However, on March 18, 2011, in a letter to Petrock, Plaintiff wrote, “there is no ‘Contract’ [with UIS][,] only this working agreement to which all parties had agreed.” (Doc. # 15–4.) A day later, Plaintiff was suspended with pay. (Doc. # 15, ¶ 14.) The Board met again on March 30, 2011 to discuss whether to terminate Plaintiff.⁵ (Doc. # 15–12.) The next day, the Board terminated Plaintiff, effective April 1, 2011. (Doc. # 15–9.) The Board's March 31, 2011 letter to Plaintiff explained that he had been terminated because “[t]he Board of Directors found that you entered into a contract without formal Board approval. This action has resulted in an approximately $200,000.00 loss .... This loss has placed FFPD and our community in a position of ‘lack of trust’ in your leadership and guidance.” ( Id.)

FFPD has an “Employee Guidelines Manual” (“the Employee Manual”), which provides, on the first page, that:

These guidelines are not a contract and impose no legally enforceable obligations on [D]istrict [sic]. All District employees are employed at will. Employees, or District, may terminate the employment relationship at any time, with or without prior notice, warning, procedure, or formality, for any reason or no reason .... The nature, terms or conditions of District employees' employment cannot be changed by oral representation, custom, habit or practice, or any other writing. In the event of conflict between this disclaimer and any other statement, oral or written, present or future, concerning terms and conditions of employment, the at-will relationship confirmed by this disclaimer shall control.

(Doc. # 15–18 at 3.) Additionally, the Employee Manual provides a “Grievance Procedure,” which states:

If an employee is dissatisfied with their supervisor's verbal decision [as to an employment action], the employee must submit the grievance in writing to the Fire Chief within seven business days from the date of the supervisor's verbal decision. The Chief will investigate the grievance to the fullest extent and furnish a written decision to the employee within five business days after receipt of the grievance.

( Id. at 4.) Additionally, the Employee Manual states that “if any employee is not satisfied with the Chief's written response to their grievance, the employee may appeal in writing to the Board within seven days from the date of the Chief's written decision, with the employee's agreement to appear personally before the Board to discuss the grievance.” ( Id. at 4–5.)

II. STANDARD OF REVIEW

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670–71. In attempting to meet that standard, a movant who does not bear the ultimate burden of persuasion at trial need not disprove the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party “to set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671. To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein. Id.

III. ANALYSIS

A. PLAINTIFF'S AMERICANS WITH DISABILITIES ACT (“ADA”) CLAIM

The ADA prohibits discrimination against a “qualified individual with a disability on the basis of the disability.” Valdez v. McGill, 462 Fed.Appx. 814, 817 (10th Cir.2012) (quoting 42 U.S.C. § 12112(a)). To establish a prima facie case of discrimination under the ADA, a plaintiff must show that: (1) he is a disabled person as defined by the ADA; (2) he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held; and (3) his employer discriminated against him because of his disability. Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1217 (10th Cir.2010); see also MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir.2005) (same).

Where, as here, a plaintiff seeks to establish an ADA violation through circumstantial evidence, the Court applies the three-step analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). MacKenzie, 414 F.3d at 1274. Under McDonnell Douglas, Plaintiff must first establish a prima facie case of discrimination. If Plaintiff can do so, “the burden shifts to the defendant to offer a legitimate nondiscriminatory reason for its employment...