David Worley
In Benavides v. Oklahoma City, 20 WH Cases 2d 331 (10th Cir. 2013), the Court upheld summary judgment on ADA and FMLA claims by a former detective when there was no retaliatory action, the employer suitably responded to alleged harassment, the paid administrative leave was standard for an employee being investigated for a crime, the paid leave did not adversely affect the plaintiff, and there was no showing that the City’s reason was pretextual. The court had little trouble in affirming the lower court’s granting of summary judgment as the plaintiff had utterly failed in indicating any violation of either the ADA or FMLA had occurred.
Benavides took intermittent FMLA leave because of a number of medical conditions and was “harassed” by his coworkers for doing so. Coworkers placed packaged tampons on his desk, placed a jar of ashes on his desk (indicating that he was on his death bed), and called him “dumbass” on a number of occasions. The employer reprimanded the coworkers and conducted a full investigation into the incidents.
Benavides was also the subject of an investigation regarding illegal gambling. After a grand jury subpoena, the City placed him on paid administrative leave pending the outcome of the investigation, as was the normal practice. While on leave, he was denied a request to work as a private security guard. Benavides was later indicted in state court. At that point, Benavides resigned from his position, citing health problems as the reason.
Benavides’ claims against the City included retaliation under the FMLA and ADA as well as ADA claims of a hostile work environment, discriminatory leave conditions and failure to accommodate.
The retaliation claims under the ADA and FMLA relied on the veracity of the other ADA claims. Specifically, the retaliation consisted of the employer condoning the abuse (hostile work environment), failing to transfer (failure to accommodate), and placing him on administrative leave (discriminatory leave conditions). The court had little trouble dispatching each claim, and finding no retaliation occurred.
First:
Benavides has not carried his burden of demonstrating that the City’s response was inadequate. The City reasonably responded to Benavides’ allegations of harassment. He thus cannot survive summary judgment on a retaliatory-harassment theory
Then:
We conclude that no rational jury could find that the restriction on Benavides’ administrative leave was anything but de minimis. Even if we were to conclude that Benavides had demonstrated a prima facie case of discrimination in regard to being placed on paid administrative leave, the City has identified a legitimate, nondiscriminatory reason for doing so, and Benavides has not shown pretext.
Finally:
As for a retaliatory refusal-to-transfer theory, Benavides simply directs this court’s attention to his failure-to-accommodate theory. But his accommodation theory is little more than a summary allegation in his opening brief. In the absence of adequate argument concerning a retaliatory refusal to transfer, we deem the theory waived. . . We conclude that his FMLA-retaliation claim fails for the same reasons his ADA-retaliation claim failed.
