Trial News

The Tenth Circuit has revived an employee’s hostile work environment and retaliation claims under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. Although the district court granted summary judgment for the defendant on all claims, the Tenth Circuit reversed in full—even reviving a claim not briefed on appeal. (Mestas v. Town of Evansville, 2019 WL 4233198 (10th Cir. Sept. 6, 2019)).

In 2012, Roy Mestas started as a sanitation truck driver for the town of Evansville, Wyo. That November, he slipped on ice, injured his back, and was placed on medical leave based on his doctor’s recommendation. Mestas went back to work in January 2013 with no restrictions.

After his return, Mestas alleged that one of his supervisors, Dale Brown, began treating him more severely than other employees. This included demanding that Mestas perform all tasks without assistance—one coworker testified that Brown reprimanded him for helping Mestas with a task even though it could not have been completed alone.

Mestas also alleged that Brown frequently used derogatory language to address him and the other Latino employee; coworkers corroborated this allegation. Mestas complained about these remarks to Brown at least twice. At the beginning of April 2013, Mestas confronted Brown about his continued use of the word “beaner,” but Brown continued to use the offensive language.

On April 11, believing that he had reinjured his back, Mestas informed Brown that he needed to miss work to get a steroid injection for his back pain. Brown granted the request, and Mestas scheduled an appointment for April 18.

On April 15, assigned to shovel snow, Mestas asked Brown whether he could use his own snow blower, which caused him less pain. Brown refused, allegedly saying something like “that’s what I have Mexicans for, to do this work.” On April 16, Mestas called into work and asked whether he could be excused from shoveling snow due to his injury. Brown hung up on him. On April 17, Brown fired Mestas, telling him to “go take care of [his] back and whatever.”

Mestas sued for hostile work environment under the ADA, retaliation for taking medical leave for a disability in violation of the ADA, hostile work environment based on discrimination in violation of Title VII, and retaliation for raising concerns about Brown’s racially offensive language in violation of Title VII. The district court granted the defendant summary judgment on all claims, and the Tenth Circuit reversed, ruling that the plaintiff raised genuine issues of material fact.

Although the district court had found that Mestas failed to establish the “record of disability” required to bring an ADA hostile work environment claim, the Tenth Circuit disagreed. It emphasized that whether someone has established a record of a disability “shall be construed broadly.” Here, Mestas’s documented back injury, medical leave, and requests for accommodation for back pain were sufficient for a reasonable jury to find that this record existed.

Reviewing the ADA retaliation claim, the Tenth Circuit rejected the findings that Mestas did not “establish that he engaged in a protected activity under the ADA” and was not a “qualified individual” covered by the statute. The court held that a reasonable jury could find that Mestas’s requests for accommodation—both his long-term medical leave and request for leave to receive the injection—constituted ADA-protected activities. Quoting EEOC v. C.R. England, Inc. (644 F.3d 1028 (10th Cir. 2011)), the court noted that “there is no requirement that an employee use ‘magic words’ like ‘ADA’ or ‘reasonable accommodation’ when making a request; the employee must only make clear that ‘the employee wants assistance for his or her disability.’” The court also found that the district court erred when ruling that Mestas was not a “qualified individual” under the ADA. Unlike a discrimination claim, an ADA retaliation claim does not require proof that the plaintiff has a disability. Instead, as stated in Selenke v. Medical Imaging of Colorado (248 F.3d 1249 (10th Cir. 2001)), the plaintiff’s “reasonable, good faith belief that the statute has been violated suffices.”

Reviewing whether a jury could find that the defendant had retaliated after the plaintiff engaged in protected activity, the court pointed out that only seven days passed between Mestas requesting time off and being fired. Citing Anderson v. Coors Brewing Co. (181 F.3d 1171 (10th Cir. 1999)), the Tenth Circuit observed that “temporal proximity between protected activity and adverse employment action can establish causation.” In addition, Brown allegedly referred to Mestas’s back injury when firing him, which also supported a causal link.

Turning to the Title VII claims, the Tenth Circuit rejected the district court’s ruling that Brown’s offensive language comprised “offhand comments” and “isolated incidents.” To survive summary judgment, a plaintiff alleging a racially hostile work environment must show that the discrimination was “severe or pervasive” enough to create an abusive working environment and that he was “targeted for harassment” due to his race or national origin. The Tenth Circuit noted that whether comments are “sufficiently pervasive” is a question “a district court is not well-suited to determine” on summary judgment. Here, Mestas’s allegations and testimony that Brown repeatedly used racial slurs could enable a reasonable jury to find that this created a hostile work environment.

Finally, the Tenth Circuit found that Mestas had established a prima facie case of retaliation under Title VII. Mestas was fired less than one month after speaking to Brown about his discriminatory conduct. This short time frame, the court said, created a “causal connection” between the protected activity and the adverse employment action, allowing a reasonable jury to find in Mestas’s favor.

“After we lost on summary judgment, a lot of pressure was put on us to settle,” said Laramie, Wyo., attorney Megan Hayes, who represents the plaintiff. “I admire my client’s courage for choosing to appeal. He and I were both concerned that the district court’s decision, if left sitting there, would be one cited by defense lawyers. I felt strongly that the decision was erroneous and am pleased that the Tenth Circuit agreed. In fact, the court found for us on an issue we never raised, reviving the ADA hostile work environment claim.”

“In my experience, the Tenth Circuit has not been overly friendly to plaintiffs in employment discrimination cases,” Hayes continued. “But this order fits squarely with its case law, much of which the court cited, and the facts supporting my client are very strong. In particular, I believe that the court was struck by the evidence of the racially hostile environment and the temporal proximity between the protected conduct and the adverse employment action. My client did an incredible job documenting the discrimination he experienced, and he deserves to have his day in court.”