BRETT L. TOLMAN, United States Attorney (#8821 STEPHEN J. SORENSON, Assistant United States Attorney (#3049) 185 South State Street #400 Salt Lake City, Utah 84111 Telephone: (801) 524-5682 Facsimile: (801) 524-4473
Mary Jo O'Neill AZ Bar No. 005924 Sally C. Shanley AZ Bar No. 012251 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PHOENIX DISTRICT OFFICE 3300 N. Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: 602-640-5032 Fax: 602-640-5009 Sally.Shanley@eeoc.gov
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiffs v. C. R. ENGLAND, INC.,
Defendant.

: : COMPLAINT AND : JURY DEMAND : : : : : Civil No.: 2:06CV811 BSJ : :

______________________________________________________________________________

NATURE OF THE ACTION

This is an action under Title I of the Americans with Disabilities Act (ADA) of 1990 and

Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of

disability and to provide appropriate relief to Walter Watson, who was adversely affected by such

practices. The Commission alleges that C. R. England, Inc. (“England”) unlawfully disclosed medical information concerning Mr. Watson and unlawfully limited, segregated and/or classified Mr. Watson on the basis of his disability.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference "Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. "§§ 2000e-5(f)(1) and (3) and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Utah.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII.", 42 U.S.C. §§ 2000e-5(f)(1)." 4. At all relevant times, Defendant, C.R. England, Inc., a Utah corporation, has continuously been doing business in the state of Utah and the city of Salt Lake, and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C.§ 12111(5), and

Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
6. At all relevant times, Defendant has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Walter Watson filed a charge with the Commission alleging violations of Title I of the ADA by Defendant England. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Walter Watson is a qualified person with a disability and is covered by Title I of the ADA, 42 U.S.C. §§ 12101 et seq. 9. Walter Watson is an experienced commercial truck driver and worked as a driver and driver trainer for England. 10. Since at least January 2003, Defendant has engaged in unlawful employment practices at its Salt Lake City, Utah location, in violation of Title I of the ADA, 42 U.S.C. §§ 12101 et seq. These practices include
a. Disclosing and requiring Mr. Watson to disclose medical information concerning his disability, in writing, to driver trainees before they could be trained by Mr. Watson; and,
b. Unlawfully limiting, segregating and/or classifying Mr. Watson on the basis of his disability.
11. The effect of the practice complained of in paragraph 10 above has been to deprive Walter Watson of equal employment opportunities and otherwise adversely affect his status as an employee because of his disability.

12. The unlawful employment practice complained of in paragraph 10 was intentional.
13. The unlawful employment practice complained of in paragraph 10 above was done with malice or with reckless indifference to the federally protected rights of Walter Watson.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant England, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in those actions alleged in paragraph 10 and any other employment practice which discriminates on the basis of disability. B. Order Defendant England to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals with disability, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant England to make whole Walter Watson by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 10 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial. D. Order Defendant England to pay Walter Watson punitive damages for its malicious and reckless conduct, as described in paragraph 10 above, in amounts to be determined at trial. E. Grant such further relief as the Court deems necessary and proper in the public interest. G. Award the Commission its costs.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint. RESPECTFULLY SUBMITTED, this 25th day of September, 2006.

BRETT L. TOLMAN United States Attorney
s/Stephen J. Sorenson STEPHEN J. SORENSON Assistant United States Attorney 185 S. State Street, #400 Salt Lake City, Utah 84111
Associated Local Counsel for Plaintiff

RONALD S. COOPER General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507
s/ Mary Jo O’Neill MARY JO O’NEILL Regional Attorney
s/Sally C. Shanley SALLY C. SHANLEY Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix District Office 3300 N. Central Ave., Suite 690 Phoenix, Arizona 85012

 
 FlLED U,S D:STRICT COURT

RUSSELL T. MONAHAN, USB NO. 9016 DANIEL W. MORSE, USB No. 9334 COOK & ASSOCIATES, P.C. Attorneys for Plaintiff 230 South 500 East, Suite 465 Salt Lake City, Utah 84102 Telephone: (801) 595-8600 Telefax: (801) 595-8614 E-Mail: russ@cooklawfirrn.com
dan@cooklawfirrn.com

-'·C·,. :·c.-;-.-:.""••, ....__ .. _. _, _0'

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH,CENTRAL DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiffs,
vs.
C.R. ENGLAND, INC. Defendant,

COMPLAINT IN INTERVENTION
Civil No: 2:06cv811 BSJ
Judge: Bruce S. Jenkins Magistrate:

WALTER WATSON Plaintiff in Intervention,
vs.
C.R. ENGLAND, INC. Defendant,

Plaintiff in Intervention, Walter Watson, by and through his counsel, Russell T. Monahan, hereby complains against the Defendant, C.R. England, for cause of action as follows:
GENERAL ALLEGATIONS I. This action is brought pursuant to the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. §12101, et. seq. for employment discrimination. Jurisdiction is specifically conferred upon this Court under and by virtue of 42 U.S.C. § 2000e(S) and §12117. Equitable and other relief are also sought under 42 U.S.C. § 2000eS(g). Jurisdiction is also conferred upon this Court under and by virtue of28 U.S.C. §§ 1331, 1343 and 42 U.S.C. §§1981 et. seq. 2. Plaintiffin Intervention, Walt Watson (hereinafter Plaintiff Watson) is a resident ofthe State of Alabama 3. Defendant, C.R. England (hereinafter Defendant England), is a Utah Corporation, and during the relevant times, doing business in the County of Salt Lake, State of Utah and has at least IS employees. 4. Plaintiff, Equal Employment Opportunity Commission (hereinafter Plaintiff EEOC) is an agency of the United States of America charged with enforcement under the ADA. S. Venue is proper in the Central Division under 28 U.S.C. § 1391(b) in that a substantial part of the events or omissions giving rise to PlaintiffWatson's claims occurred in such District.
Watson Complaint ***page*** -2-

6. On or about August 18, 2003, Plaintiff filed a complaint with the EEOC alleging discrimination because ofhis disability and retaliation.
7. On or about September 15, 2004, Plaintiff EEOC issued a determination finding that Defendant England had violated Plaintiffs Watson's rights under the ADA.
8. On or about September 25, 2006, Plaintiff EEOC filed a complaint in the United States District Court for the State of Utah alleging that Defendant England violated the ADA when Defendant England discriminated against Plaintiff Watson
9. All administrative prerequisites have been satisfied prior to filing this Complaint.
10. Defendant England provides trucking services throughout the United States to such clients as:
A. Vlasic Foods International, Inc. B. Coca-Cola USA, Inc. C. Tropicana Juices D. Unilever Defendant England is thus engaged in an industry affecting interstate commerce. 11. Plaintiff Watson is a qualified person with a disability under the ADA. 12. In the fall of2002, Plaintiff Watson was recruited to work for Defendant England by a fellow driver. 13. In November 2002, Plaintiff Watson began driving for Defendant England.
Watson Complaint ***page*** -3-

14. At or near the end of November or the beginning of December, 2002, Plaintiff Watson had a meeting with Defendant England's Human Resource Office to discuss the performance of another driver.
15. During the November meeting, after being informed that the meeting was confidential, Plaintiff Watson informed Defendant England's H.R. of his medical condition.
16. During the November meeting, Plaintiff Watson saw a recruitment notice from Defendant England seeking truck driving trainers.
17. In late January 2003, Plaintiff Watson applied for a position of trainer with Defendant England.
18. On or about January 31, 2003, Plaintiff Watson's application for trainer was approved and Plaintiff Watson was assigned to begin training class on or about February 3, 2003.
FIRST CAUSE OF ACTION DISCRIMINATION
19. Plaintiff incorporates by reference paragraphs 1-18 of this Complaint as if specifically set forth herein.
20. Since January 31, 2003, Defendant England discriminated against Plaintiff Watson as follows:
A. Coercing Plaintiff Watson into disclosing his medical condition to trainees and fellow employees.
Watson Complaint ***page*** -4-

B. Requiring trainees to sign releases acknowledging Plaintiff Watson's medical condition before permitting Plaintiff Watson to train them.
c. Discouraging and preventing trainees from training with Plaintiff
Watson because of his medical condition. D. Purposely misdirecting Plaintiff Watson on load pick-ups so as to
harass and discourage Plaintiff Watson from continuing his employment with Defendant England.
E. Unlawfully discharging Plaintiff Watson because of his disability. 21. The foregoing actions constitute discrimination and unlawful employment practices under the Americans With Disabilities Act. 22. As a direct and proximate result of Defendant England's, wrongful conduct, Plaintiff Watson unlawfully suffered pecuniary and compensatory damages. 23. PlaintiffWatson is entitled to compensation from Defendant England for back pay, front pay, pain, suffering, humiliation and emotional distress, and other past and future pecuniary losses. 24. PlaintiffWatson and Plaintiff EEOC are entitled to affirmative injunctive relief prohibiting Defendant England from discriminating against individuals on the basis of their disability status in the future. 25. The actions of Defendant England were willful and wanton and were done with reckless indifference to Plaintiff Watson's federally protected rights. 26. Plaintiff Watson is entitled to punitive damages in an amount to be determined at trial.
Watson Complaint ***page*** -5-

27. Plaintiff Watson is entitled to reasonable attorney's fees and costs of court. 28. Plaintiff EEOC is entitled costs.
SECOND CAUSE OF ACTION DENIAL OF REASONABLE ACCOMMODATION 29. Plaintiff Watson incorporates by reference paragraphs 1-28 of this Complaint as if specifically set forth herein. 30. The foregoing acts of Defendant England as stated in Plaintiffs' First Cause of Action were negligent. 31. While employed by Defendant England, Plaintiff Watson informed Defendant England that Plaintiff Watson needed time off to see a medical care provider. 32. Plaintiff Watson's request was a reasonable accommodation for Plaintiff Watson's disability. 33. When Plaintiff Watson took the needed time off, Defendant England terminated Plaintiff Watson. 34. Defendant England terminated Plaintiff Watson without warning Plaintiff Watson that Defendant England would terminate Plaintiff Watson ifhe took the time off for the medical care. 35. The foregoing actions constitute a denial of a reasonable accommodation and unlawful employment practices under the Americans With Disabilities Act. 36. As a direct and proximate result of the Defendant England's, wrongful conduct, Plaintiff Watson unlawfully suffered pecuniary and compensatory damages.
Watson Complaint ***page*** ~6-

37. Plaintiff Watson is entitled to compensation from Defendant England for back pay, front pay, pain, suffering, humiliation and emotional distress, and other past and future pecuniary losses.
38. PlaintiffWatson and Plaintiff EEOC are entitled to affirmative injunctive relief prohibiting Defendant England from discriminating against individuals on the basis of their disability status in the future.
39. The actions ofDefendant England were willful and wanton and were done with reckless indifference to PlaintiffWatson's federally protected rights.
40. PlaintiffWatson is entitled to punitive damages in an amount to be determined at trial.
41. Plaintiff Watson is entitled to reasonable attorney's fees and costs of court. 42. Plaintiff EEOC is entitled to costs.
THIRD CAUSE OF ACTION RETALIATION
43. Plaintiff Watson incorporates by reference paragraphs 1-41 of this Complaint as if specifically set forth herein.
44. The foregoing acts of Defendant England as stated in Plaintiffs' First and Second Causes of Action were negligent.
45. After learning Plaintiff Watson intended to exercise his federally protected rights under the ADA, Defendant England took the following actions:
A. Disseminating defamatory and untrue statements to potential employers of Plaintiff Watson.
Watson Complaint ***page*** -7-

B. Asserting false monetary claims against Plaintiff Watson. 46. Defendant England's actions were in retaliation ofPlaintifi"'s exercise of his rights under the Americans With Disabilities Act. 47. As a direct and proximate result of Defendant England's wrongful conduct, PlaintiffWatson unlawfully suffered pecuniary and compensatory damages. 48. PlaintiffWatson is entitled to compensation from Defendant England for back pay, front pay, pain, suffering, humiliation and emotional distress, and other past and future pecuniary losses. 49. PlaintiffWatson and Plaintiff EEOC are entitled to affirmative injunctive relief prohibiting Defendant England from discriminating against individuals on the basis of their disability status in the future. 50. The actions of Defendant England were willful and wanton and were done with reckless indifference to Plaintiff Watson's federally protected rights. 51. Plaintiff Watson is entitled to punitive damages in an amount to be determined at trial. 52. Plaintiff Watson is entitled to reasonable attorney's fees and costs of court. 53. Plaintiff EEOC is entitled costs.
FOURTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 54. Plaintiff Watson incorporates by reference paragraphs 1-51 of this Complaint as if specifically set forth herein.
Watson Complaint ***page*** ·8·

55. The foregoing acts of Defendant England as stated in Plaintiffs' First Second, and Third Causes of Action were negligent.
56. The foregoing acts of Defendant England were done for the purpose of inflicting emotional distress upon Plaintiff Watson.
57. A reasonable person would have known that, by taking the actions described above, the actions would result in the infliction of emotional distress.
58. Defendant England's actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.
59. As a direct and proximate result of Defendant England's actions, Plaintiff Watson suffered severe emotional distress and anguish all to his general damages in an amount to be determined at trial.
60. The acts of Defendant England were willful, wanton, malicious, and in reckless disregard of Plaintiff's rights and Plaintiff is entitled to punitive damages in an amount to be determined at trial.
FIFTH CAUSE OF ACTION NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 61. Plaintiff Watson incorporates by reference paragraphs I through 57 of his Complaint as if specifically set forth herein. 62. The foregoing acts of Defendant England as stated in Plaintiffs' First Second, Third and Fourth Causes of Action were negligent.
Watson Complaint ***page*** ·9-

63. A reasonable person would have known that the actions described above, would result in the infliction of emotional distress.
64. Defendant England's actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.
65. As a direct and proximate result ofthe actions of Defendant England, Plaintiff Watson suffered severe emotional distress and anguish all to his general damages in an amount to be determined at trial.
SIXTH CAUSE OF ACTION INVASION OF PRIVACY
66. Plaintiff Watson incorporates by reference paragraphs 1 through 65 of this Complaint as if specifically set forth herein.
67. The foregoing acts of Defendant England as stated in Plaintiffs' First Second, Third, Fourth and Fifth Causes of Action were negligent.
68. Defendant England's disclosure and forced disclosure of Plaintiff Watson medical condition constitute an invasion of Plaintiff Watson's rights to privacy.
69. The disclosure was highly offensive and objectionable to Plaintiff Watson and a person of normal sensibilities.
70. As a direct and proximate result of Defendant England's actions, Plaintiff Watson suffered severe emotional distress and anguish all to his general damages in an amount to be determined at trial.
Watson Complaint ***page***-lO-

71. The acts of Defendant England were willful, wanton, malicious, and in reckless disregard of Plaintiff's rights and Plaintiff is entitled to punitive damages in an amount to be determined at trial.
WHEREFORE, Plaintiff Watson prays for relief and judgment against Defendant England as more particularly set forth herein.
1. For front and back pay for Plaintiff Watson in an amount to be determined at trial, plus interest thereon at the appropriate legal rate.
2. For direct past and future pecuniary losses that Plaintiff Watson may show in an amount to be determined at trial.
3. For general damages for Plaintiff Watson's emotional distress, humiliation, pain, suffering and loss of privacy in such amount as may be determined at trial.
4. For punitive damages in such amount as may be determined at trial. 5. For injunctive reliefprohibiting Defendant from violating the Americans With Disabilities Act. 6. For interest, costs of court and a reasonable attorney's fee for Plaintiff Watson. 7. For costs and fees for Plaintiff EEOC. 8. For such other and further relief as the Court may deem fitting and proper in the premises.
JURY DEMAND PlaintiffWatson demands a jury trial. DATED: March 22, 2007
RUSSELL T. MONAHAN Attorney For Plaintiff
Watson Complaint ···page·-· -11-

CERTIFICATE OF SERVICE

STATE OF UTAH

)

:ss

COUNTY OF SALT LAKE

)

RUSSELL T. MONAHAN, being duly sworn, says:

That he is the attorney for Plaintiff; and that he served the attached COMPLAINT upon:

Mary Jo O'Neill Michelle G. Marshall Sally C. Shanley Equal Employment Opportunity Commission (AZ) Phoenix District Office 3300 N. Central Ave, Suite 690 Phoenix, AZ 85012-1848

Stephen J. Sorenson U.S. Attorney's Office 185 South State Street, #400 Salt Lake City, UT 84111

Michael Blue Scott A. Hagen Equal Employment Opportunity Commission (AZ) Phoenix District Office 3300 N. Central Ave, Suite 690 Phoenix, AZ 85012-1848

by placing a true and correct copy thereof in an envelope and depositing the same, sealed, with first-class postage prepaid thereon, in the United States mail in Salt Lake City, Utah on Thursday, March 22,2007.

/J
§~,7~
'RUSSELL T. MONAHAN'"
SUBSCRIBED AND SWORN TO before me on Thursday, March 22, 2007.

- -IIIILR IIIYI- .. DONNA KAYtUmION I I uom 230_500-'_415
Sol La/OI ClOy. 14102
I Myeo. 'I fa RErpIrea
- -s_:_y_._ ~ _ .1

Watson Complaint ***page***-12-

 
 FILED Appellate Case: 09-4217 Document: 01018633302 Date FUilendit:e0d5S/0tT3ae/t2ne0sth1C1CoiurrcPtuaoigtfeA: p1peals

May 3, 2011

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
and
WALTER WATSON,
Intervenor-Plaintiff, v. C.R. ENGLAND, INC.,
Defendant-Appellee. __________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
WALTER WATSON,
Intervenor-PlaintiffAppellant,
v.
C.R. ENGLAND, INC.,
Defendant-Appellee.

No. 09-4207 No. 09-4217

Appellate Case: 09-4217 Document: 01018633302 Date Filed: 05/03/2011 Page: 2
Appeal from the United States District Court for the District of Utah
(D.C. No. 2:06-CV-00811-BSJ)
Anne Noel Occhialino (James L. Lee, Deputy General Counsel, Lorraine C. Davis, Acting Associate General Counsel, P. David Lopez, General Counsel, with her on the briefs), Equal Employment Opportunity Commission, Office of General Counsel Appellate Service, Washington, D.C., for Plaintiff-Appellant. Russell T. Monahan, Cook & Monahan, Salt Lake City, Utah, for IntervenorPlaintiff-Appellant. Scott A. Hagen (Michael E. Blue, with him on the briefs), Ray Quinney & Nebeker P.C., Salt Lake City, Utah, for Defendant-Appellee.
Before KELLY, EBEL, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
INTRODUCTION Plaintiff-Appellant Equal Employment Opportunity Commission (“EEOC”) initiated this suit against Defendant-Appellee C.R. England, Inc. (“C.R. England”) under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–213. The alleged ADA violations arise from the employment relationship between C.R. England and Walter Watson, a former driver and trainer for the company. Mr. Watson subsequently intervened in the suit, alleging similar claims under the ADA and additional claims under Utah state law. The
2

Appellate Case: 09-4217 Document: 01018633302 Date Filed: 05/03/2011 Page: 3

district court granted summary judgment in favor of C.R. England on all claims and disposed of the case. This appeal followed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s grant of summary judgment on all claims.
BACKGROUND Walter Watson was diagnosed with Human Immunodeficiency Virus (“HIV”) in 1999. In November 2002, Mr. Watson began working as a truck driver for C.R. England, a company based out of Salt Lake City. Shortly after his employment began, Mr. Watson voluntarily informed C.R. England’s human resources manager, Carrie Johansen, that he was HIV positive.1 In December 2002, Mr. Watson entered into an independent contractor operating agreement (“ICOA”) with C.R. England, under which his status changed from that of an employee driver to an independent-contractor driver.2 On that same day, Mr.

1

The voluntary disclosure of Mr. Watson’s illness to Ms. Johansen

occurred after a “team drive” that Mr. Watson took with Alan Franklin, another

C.R. England driver. Due to an incident that occurred between the two m en, Mr.

Watson had refused to complete the drive and had been left in Las Vegas. After

returning to Salt Lake City, he informed Ms. Johansen about his HIV-positive

status. Mr. Watson stated that Ms. Johansen told him that the disclosure would

remain confidential, and that he only offered the information because he believed

that Mr. Franklin had already disclosed his illness to the company. Although

there is some disagreement regarding exactly how the information was offered,

there is no evidence that C.R. England elicited the information, and Mr. Watson

does not dispute that he voluntarily disclosed his illness to the company.

2

The relevant terms of the ICOA, as described by the district court,

are as follows:

(continued...)

3

Appellate Case: 09-4217 Document: 01018633302 Date Filed: 05/03/2011 Page: 4
Watson signed a Vehicle Lease Agreement (“Lease Agreement”), under which he
leased a truck from Opportunity Leasing, Inc., a sister company of C.R. England.
After working for C.R. England under the ICOA for a few months, Mr.
Watson decided to become a driver-trainer for the company. In order to become a
trainer, Mr. Watson completed C.R. England’s five-day “Train-the-Trainer”
course in February 2003. On the first day of training, Mr. Watson was called into
2(...continued) The ICOA allows drivers to “refuse any specific shipm ent offered by [England] as long as, in [England’s] reasonable judgment, [it is] nonetheless able to m eet the needs of [its] customers.” The ICOA does not require the driver to rent any products or equipment from England. The ICOA states that a driver’s relationship with England “is subjec t to governm ent regulation,” and it lists a driver’s responsibilities in m eeting those regulations. The ICOA m akes drivers responsible for determining how to provide England with services, including selecting workers, se curing equipment, selecting routes, and scheduling work hours. Additionally, the ICOA disclaim s England’s liability for dam age to a driver’s equipm ent and requires drivers to indem nify and hold England ha rmless from any claim that arises out of a driver’s negligence, gross negligence, willful m isconduct, or other culpable acts. Both England and a driver governe d by the ICOA m ay terminate the agreement for any reason by giving 30 days’ written notice. As a driver governed by the ICOA, Watson was not entitled to medical benefits or a retirement plan from England. Consistent with applicable federal regulations, Watson could use his truck to transport freight for another carrier by obtaining England’s consent to sublease equipm ent to the other carrier, or he could simply transport it using the other carrier’s truck.
EEOC v. C.R. England, Inc., No. 2:06-CV-00811BSJ, slip op. at 3–4 (D. Utah Sept. 17, 2009) (alterations in original) (citations omitted).
4

Appellate Case: 09-4217 Document: 01018633302 Date Filed: 05/03/2011 Page: 5

Ms. Johansen’s office. She expressed concern about his ability to become a

trainer in light of his HIV-positive status. Later that same day, Mr. Watson and

Ms. Johansen met with C.R. England’s general counsel, Nelson Hayes, to further

discuss Mr. Watson’s status as a trainer. Mr. Watson, Ms. Johansen, and Mr.

Hayes met again one or two days later to discuss C.R. England’s concerns about

Mr. Watson’s role as a trainer and possible courses of action that might assuage

its concerns. During the second meeting, Mr. Hayes broached the idea of

disclosing Mr. Watson’s HIV-positive status to potential trainees and asked Mr.

Watson if he had any thoughts or ideas as to how this could be done. In response,

Mr. Watson suggested drawing up some sort of form that could be given to

potential trainees.

The end result of these meetings was an acknowledgment form, drafted by

Mr. Hayes, which informed a potential trainee that his trainer was HIV-positive,

but did not reveal Mr. Watson’s identity. Specifically, the form read:

Trainee hereby specifically acknowledges that he/she has

been fully inform ed that his/her Trainer suffers from

a

communicable health condition (HIV).

Trainee agrees to fully inform himself/herself on the condition (HIV), including avoidance of com munication of the disease. Trainee further agrees to keep confidential any and all information relating to Trainer’s condition, except as required to protect the health and welfare of any person.

EEOC App. at 398 (Acknowledgment and Agreement Form, dated Feb. 7, 2003).

C.R. England contemplated that potential trainees would sign the

5

Appellate Case: 09-4217 Document: 01018633302 Date Filed: 05/03/2011 Page: 6
acknowledgment form before they began training with Mr. Watson. Mr. Watson never objected to the disclosure of his HIV status or to the use of the acknowledgment form.
Mr. Watson’s first and only potential trainee, Eddie Seastrunk,3 was presented with the form and signed it without protest on February 7, 2003. The form was not shown to any other potential trainee.
On February 11, 2003, before he left on his first training assignment, Mr. Watson requested “home time” beginning February 16, 2003, and ending February 18, 2003. The stated reason for his request for time off was “family time.” EEOC App. at 1035 (Home Time Request, dated Feb. 11, 2003). When C.R. England denied Mr. Watson’s request because he had not given the required twoweeks notice, Mr. Watson responded: “OK, just when ava[i]lable.” Id. at 1037–38.
On February 12, 2003, Mr. Watson and Mr. Seastrunk were dispatched on their first drive together, delivering a load to Omaha, Nebraska. After they delivered the initial load, Mr. Watson and Mr. Seastrunk were sent to pick up a second load in Omaha, but the second load was canceled while they were en route. The two men were sent to pick up yet another load in the Omaha area within minutes, but that load was also quickly canceled, and they were then

3

The district court, EEOC, and C.R. England refer to the trainee as

“Eddie Seastrunk,” while Mr. Watson refers to him as “Eddie Seastruck.”

6

Appellate Case: 09-4217 Document: 01018633302 Date Filed: 05/03/2011 Page: 7
dispatched to pick up the second, previously canceled load. C.R.England employee Christie Wakeland testified that this series of events was not unusual for this part of the country, noting that load cancellations “happen[ed] very frequently” and that this type of occurrence “wasn’t out of the ordinary at all.” EEOC App. at 403 (Dep. of Christie Wakeland, dated July 25, 2007).
This series of dispatches and the subsequent cancellations that occurred left Mr. Watson feeling stressed and distraught. In response to the final cancellation, Mr. Watson demanded that he be given immediate “home time,” and stated that he could “not wait two more weeks.” EEOC App. at 426.4 C.R. England’s driver manager, Cynthia Horsley, refused his request because she “ha[d] to have 2 weeks notice”; however, she did tell Mr. Watson that if he “want[ed] to re-submit [his] hometime for the 2 week time frame, [she] w[ould] do what [she] c[ould] to get [him] there as close to that request as [she] c[ould].” Id. at 427. Mr. Watson then refused the load, demanded that his trainee be reassigned, and stated that he was “deadheading” (i.e., driving with an empty truck) to his family home in Florida, despite the denial of his home time request. Id. at 428. In explaining his immediate departure, Mr. Watson stated that he couldn’t handle the “stress level” anymore, and that he needed to go to Florida because that is where his doctor was

4

The communication between Mr. Watson and C.R. England occurred

through a series of written messages transmitted over a “Qualcomm” satellite

messaging system, which was installed in Mr. Watson’s truck.

7

Appellate Case: 09-4217 Document: 01018633302 Date Filed: 05/03/2011 Page: 8
located and he “[needed] to see [his] Dr.” Id. Ms. Horsley then responded: “ok[,] pls [sic] leave [E]ddie [Seastrunk] at the [truck stop] and I will get him picked up.” Id. at 429. Mr. Watson deadheaded to Florida that same day.
Due to these occurrences, Mr. Watson was terminated from his trainer position on February 14, 2003. The stated reasons for the termination were that (1) Mr. Watson “sat up with his student and burned up [his] h[ou]rs,” and therefore was unable to drive when he was needed5; (2) he “refused a load,” which he was not permitted to do as a trainer; and (3) he “deadheaded . . . over 1000 miles home.” Id. at 432. At this time, Mr. Watson was still a driver for C.R. England under the ICOA.
Mr. Watson remained in Florida with his leased truck from mid-February until early March 2003—a period of more than two weeks. During that time, Mr.

5

Under the applicable U.S. Department of Transportation (“DOT”)

regulations, drivers were “restricted from operating trucks beyond a certain

number of hours in a 24-hour period.” C.R. England Br., No. 09-4207, at 11 n.4.

More specifically, they were “restricted from operating trucks beyond 11 hours

after 10 hours of rest.” C.R. England Br., No. 09-4217, at 12 n.4. Furtherm ore,

C.R. England’s trainees were prohibited from driving during certain times of the

day. Within these constraints, C.R. England required a trainer and his trainee to

drive 1000 miles per day. See EEOC App. at 135 (Dep. of Cynthia Horsley, dated

Dec. 14, 2007). C.R. England assigned the responsibility to the trainer for

allocating the driving hours between the trainer and the trainee to ensure that the

1000-mile daily requirement was satisfied. C.R. England took the position that,

by staying awake with his trainee (i.e., “s[itting] up with his student,” EEOC App.

at 432) when he should have been resting, Mr. Watson limited his ability—given

the foregoing time constraints—to contribute driving hours to the 1000-mile

quota.

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Watson did not accept any new loads, generated no income, and failed to make his weekly lease payments on his truck. C.R. England attempted to contact Mr. Watson on at least two occasions during this period in order to determine what Mr. Watson’s intentions were with regard to his ICOA and Lease Agreement, but received no response. On March 4, 2003, C.R. England terminated Mr. Watson’s Lease Agreement, and Opportunity Leasing repossessed his truck. At that time, Mr. Watson owed approximately $3000 under the Lease Agreement. C.R. England eventually sent his debt to a collection agency.
In August 2003, Mr. Watson filed a formal complaint with the EEOC, alleging that C.R. England discriminated and retaliated against him because of his illness. The EEOC issued a determination regarding Mr. Watson’s complaint in September 2004, concluding that C.R. England had violated Mr. Watson’s rights under the ADA. In September 2006, EEOC initiated the instant suit by filing a complaint in the United States District Court for the District of Utah, asserting that C.R. England had violated the ADA by (1) “[d]isclosing and requiring Mr. Watson to disclose medical information concerning his disability, in writing, to driver trainees before they could be trained by Mr. Watson”; and (2) “[u]nlawfully limiting, segregating and/or classifying Mr. Watson on the basis of his disability.” Watson App. at 26 (Compl. and Jury Demand, filed Sept. 27, 2006). In March 2007, Mr. Watson intervened in this action, alleging multiple ADA violations—including discrimination, failure to provide reasonable
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accommodation, and retaliation—as well as several tort claims under Utah state law—including intentional infliction of emotional distress, negligent infliction of emotional distress, and invasion of privacy. See id. at 32–39 (Compl. in Intervention, dated Mar. 22, 2007).6
In March 2008, EEOC moved for partial summary judgment on the issues of (1) whether Mr. Watson was a “qualified individual with a disability” protected by the provisions of the ADA; and (2) whether C.R. England was liable for violating ADA § 102(b)(1), 42 U.S.C. § 12112(b)(1), by limiting, segregating, or classifying Mr. Watson on account of his disability. EEOC App. at 39 (Pl.’s Mot. for Partial Summ. J. and Mem., filed Mar. 31, 2008). On that same day, C.R. England filed two motions for summary judgment—one against EEOC and one against Mr. Watson. In its motion regarding EEOC’s claims, C.R. England argued that (1) Mr. Watson “was an independent contractor, not an employee [of C.R. England], rendering the [ADA] inapplicable”; (2) “even if Watson is deemed an employee, EEOC’s ADA claims fail because it cannot establish that Watson is ‘disabled’ or that England took any adverse action against him because of any alleged disability”; and (3) “any purported unlawful disclosure claim is legally insufficient.” Id. at 38-B (Def.’s Mot. for Summ. J. Against Pl. EEOC, filed Mar.

6

On appeal, Mr. Watson does not challenge the district court’s grant

of summary judgement in favor of C.R. England on his “negligent infliction

emotional distress” claim. Accordingly, we need not (and do not) address that

claim.

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31, 2008). In its motion regarding Mr. Watson’s claims, the company argued that (1) Mr. Watson was not an “employee” of C.R. England; (2) that his ADA claims fail because he was not “disabled,” and could not establish that C.R. England “took any adverse action against him because of any disability, or . . . retaliated against him”; and (3) that “his three state law claims are legally insufficient.” Watson App. at 194 (Def.’s Mot. for Summ. J. Against Pl.-Intervenor Watson, filed Mar. 31, 2009).
In ruling on the motions for summary judgment, the district court stated that the outcome “turn[ed] on as many as three core issues,” which it considered in turn:
(1) while working for England as a driver and trainer, was Watson an independent contractor or an England employee/applicant? (2) if Watson was an England employee/applicant, was he a qualified individual with a disability under the ADA? and (3) if W atson was an England employee/applicant and was an ADA-qualified individual, did England unlawfully disclose Watson’s HIV status or unlawfully discriminate against Watson based upon his disability? EEOC v. C.R. England, No. 2:06-CV-00811BSJ, slip op. at 2. With regard to the first two issues, the district court held that triable issues of fact existed regarding (1) whether Mr. Watson was an independent contractor, as opposed to an employee of C.R. England, and (2) whether he had a cognizable “disability” under the ADA. However, as we proceed to discuss in further detail, the district court held that C.R. England “ha[d] shown that it is entitled to judgment as a matter of
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law as to each of the plaintiffs’ claims, and th[at] EEOC ha[d] failed to show such entitlement as to the issues raised by its motion for partial summary judgment.” Id. at 35. Accordingly, the court granted summary judgment in C.R. England’s favor on all claims, disposing of the case. Mr. Watson and EEOC filed timely appeals.
DISCUSSION EEOC and Mr. Watson raise a total of eight claims in this combined appeal.7 First, EEOC and Mr. Watson argue that C.R. England discriminated

7

As discussed above, the district court refused to grant summary

judgment on the issues of whether Mr. Watson was an “employee” of C.R.

England, and whether Mr. Watson’s HIV-positive status qualified as a “disability”

under the ADA. Nevertheless, C.R. England seeks to raise those two issues in

defending against these appeals. First, the company argues that Mr. Watson was

not an “employee” of C.R. England, and therefore he is not protected by the ADA

because the Act protects only “employees,” not “independent contractors.” PGA

Tour, Inc. v. Martin, 532 U.S. 661, 692 (2001). Second, the company argues that

Mr. Watson did not have a “disability,” as that term is defined under the ADA,

and that he is therefore not covered by the ADA because the Act protects only

“qualified individual[s]” with a “disability.” 42 U.S.C. § 12112(a), (b). They ask

this court to alternatively affirm the district court’s grant of summary judgment in

its favor on those two grounds.

Under our case law, an appellee is generally permitted to “defend the judgment won below on any ground supported by the record without filing a cross appeal.” S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 745 n.2 (10th Cir. 2005) (quoting Tinkler v. United States ex rel. FAA, 982 F.2d 1456, 1461 n.4 (10th Cir. 1992)); see also United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 633 F.3d 951, 958 (10th Cir. 2011) (“We have held that an ‘appellee may, without filing a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court.’” (quoting Ute Distrib. Corp. v. Sec’y of
(continued...)
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against Mr. Watson, in violation of ADA § 102(a) and (b)(1), by requiring potential trainees to sign an HIV-acknowledgment form before training with Mr. Watson. Second, EEOC and Mr. Watson claim that C.R. England violated § 102(d) of the ADA by disclosing his HIV status—which they characterize as confidential medical information protected by that provision—to a potential trainee and other C.R. England employees. Third, Mr. Watson argues that C.R. England discriminated against him in violation of the ADA when it “misdirected” his loads while he was driving in Omaha. Fourth, Mr. Watson asserts that C.R. England terminated his employment, both as a trainer and as a driver, in violation of the ADA. Fifth, Mr. Watson claims that C.R. England failed to provide him with “reasonable accommodations,” in violation of ADA § 102(b)(5), when it refused to grant his request for “home time.” Sixth, Mr. Watson asserts an ADA retaliation claim, arguing that the company unlawfully retaliated against him by sending his outstanding debt to a collection agency. Seventh, Mr. Watson asserts a Utah state law claim of intentional infliction of emotional distress. Lastly, and also under Utah state law, Mr. Watson claims that C.R. England violated his right
7(...continued) Interior, 584 F.3d 1275, 1282 (10th Cir.2009))); Fischer-Ross v. Barnhart, 431 F.3d 729, 732 n.2 (10th Cir. 2005) (stating that “an appellee may generally, without taking a cross appeal, urge in support of a decree any matter appearing in the record”). However, in this instance, we can affirmthe district court’s grant of summary judgment without reaching those two issues. Accordingly, we decline to address them on appeal.
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to privacy when it disclosed his HIV status to a potential trainee and other C.R. England employees. We address each claim in turn. I. Standard of Review
On appeal, “[w]e review the district court’s grant of summary judgment de novo, applying the same standards that the district court should have applied.” Jarvis v. Potter, 500 F.3d 1113, 1120 (10th Cir. 2007). The district court’s grant of summary judgment must be affirmed “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (2010).8 In reviewing a motion for summary judgment, “we consider the evidence in the light most favorable to the non-moving party.” Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255, 1259 (10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)) (internal quotation marks omitted). However, “[u]nsupported conclusory allegations do not create a genuine issue of fact.” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010) (quoting L & M Enters., Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir. 2000)) (internal quotation marks omitted).

8

Rule 56 was recently amended, effective December 1, 2010. Under

the amended rule, the standard previously enumerated in subsection (c) was

moved to subsection (a), and the term genuine “issue” became genuine “dispute.”

See Fed. R. Civ. P. 56 advisory committee’s notes (2010 Amendments).

However, the “standard for granting summary judgment remains unchanged.” Id.

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II. ADA Claims A. EEOC & Mr. Watson’s Discrimination Claims “Congress enacted the ADA with the goal of assuring ‘equality of
opportunity, full participation, independent living, and economic self-sufficiency for [individuals with disabilities].’” Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 858 (10th Cir. 2003) (alteration in original) (quoting 42 U.S.C. § 12101(a)(8)). The purposes of the Act include, inter alia, “provid[ing] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and “provid[ing] clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1)–(2). In accordance with these purposes, § 102(a) of the ADA makes it unlawful for an employer to “discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Id. § 12112(a) (2008).9
Under our case law, in order to establish a prima facie case of disability

9

Effective January 1, 2009, 42 U.S.C. § 12112(a) was amended by

replacing the phrase “with a disability because of the disability of such

individual” with the phrase “on the basis of disability.” See Pub. L. No. 110-325,

§ 5(a), 122 Stat. 3557 (Sept. 25, 2008). This statutory amendment does not affect

our analysis of the issues presented on appeal.

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discrimination under the ADA, a plaintiff must demonstrate that he “(1) is a
disabled person as defined by the ADA; (2) is qualified, with or without
reasonable accommodation, to perform the essential functions of the job held or
desired; and (3) suffered discrimination by an employer or prospective employer
because of that disability.” Justice v. Crown Cork & Seal Co., Inc., 527 F.3d
1080, 1086 (10th Cir. 2008); accord Doebele v. Sprint/United Mgmt. Co., 342
F.3d 1117, 1128 (10th Cir. 2003); Poindexter v. Atchison, Topeka & Santa Fe Ry.,
168 F.3d 1228, 1230 (10th Cir. 1999). In order to demonstrate “discrimination,”
a plaintiff generally must show that he has suffered an “adverse employment
action because of the disability.”10 Mathews v. Denver Post, 263 F.3d 1164, 1167
(10th Cir. 2001); see also Butler v. City of Prairie Village, Kan., 172 F.3d 736,
748 (10th Cir. 1999) (stating that “the third element of the prima facie case . . .
requires the plaintiff to come forth with evidence showing that the adverse
10 The parties acknowledge that in order to prevail on his ADA discrimination claim, Mr. Watson must demonstrate some sort of “adverse” action or “adverse” effect on his employment. See EEOC Opening Br., No. 09-4207, at 49 (stating that C.R. England’s actions “adversely affected [Mr. Watson’s] status”); Watson Opening Br., No. 09-4217, at 31 (recognizing that his claim is one for “discrimination based on adverse employment actions,” and arguing that “[Mr.] Watson has provided evidence that shows that Defendant England discriminated against him by taking adverse job actions” against him); C.R. England Br., No. 09-4217, at 29 (arguing that the plaintiffs must show that Mr. Watson “has been subjected to a genuinely adverse employment action”). Indeed, ADA § 102(b)(1)—upon which the EEOC’s discrimination claim is based—only prohibits “limiting, segregating, or classifying a[n] . . . employee in a way that adversely affects the opportunities or status of such . . . employee because of the disability of such . . . employee.” 42 U.S.C. § 12112(b)(1) (emphasis added).
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employment decision was because of his disability” (emphasis added)); Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1454 (11th Cir. 1998) (Under the third prong of his prima facie case, the plaintiff “must prove . . . that he has suffered an adverse employment action because of his HIV status (i.e., that the [employer] has discriminated against him because of his disability).”); cf. Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007) (“The [Supreme] Court [has] made clear the substantive discrimination provisions of Title VII are limited ‘to [adverse] actions that affect employment or alter the conditions of the workplace.’” (third alteration in original) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 62 (2006))).11
If a plaintiff offers no direct evidence of discrimination, which is often the case, the court applies the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). Under this framework, a plaintiff must first make out a prima facie case of discrimination, as described above. McDonnell Douglas, 411 U.S. at 802. After
11 Due to the similarities between the ADA and Title VII, we generally interpret those statutes consistently. See, e.g., Lanman v. Johnson Cnty., Kan., 393 F.3d 1151, 1155 (10th Cir. 2004) (“Given the[] similarities [between the ADA and Title VII], this court, and many others, have used similar analyses when interpreting the two statutes.”); id. (“Courts of appeals routinely apply the same standards to evaluate Title VII claims as they do ADA claims . . . .” (quoting Brown v. Brody, 199 F.3d 446, 456 n.10 (D.C. Cir. 1999)) (internal quotation marks omitted)).
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the plaintiff has made the requisite showing, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id. at 802–03. If the defendant proffers such a reason, the burden then shifts back to the plaintiff to show that the defendant’s stated reasons are merely “pretextual.” Id. at 804–05. “[A] plaintiff can establish pretext by showing the defendant’s proffered non-discriminatory explanations for its actions are ‘so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude [they are] unworthy of belief.’” Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010) (alteration in original) (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1197 (10th Cir. 2008)); see also Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007) (“A plaintiff demonstrates pretext by showing either that a discriminatory reason more likely motivated the employer or that the employer’s proffered explanation is unworthy of credence.” (quoting Stinnett v. Safeway, Inc., 337 F.3d 1213, 1218 (10th Cir. 2003)) (internal quotation marks omitted)).
1. ADA § 102(b)(1) Discrimination Claim EEOC and Mr. Watson argue that C.R. England unlawfully discriminated against Mr. Watson “by requiring his trainees to sign a form consenting to be trained by an HIV-positive driver.” EEOC Opening Br., No. 09-4207, at 37; see also Watson Opening Br., No. 09-4217, at 40–41. More specifically, EEOC argues that the acknowledgment-form requirement violated ADA § 102(b)(1),
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which prohibits discrimination by “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.” 42 U.S.C. § 12112(b)(1). As noted above, as part of their prima facie case of discrimination, the appellants must demonstrate that Mr. Watson suffered from an “adverse employment action.” Mathews, 263 F.3d at 1167. In fact, § 102(b)(1) explicitly limits the discriminatory prohibition to employer actions that “adversely affect[] the opportunities or status” of the employee. 42 U.S.C. § 12112(b)(1) (emphasis added).
The district court granted summary judgment in favor of C.R. England on this claim, based on its conclusion that Mr. Watson had not suffered froman adverse employment action. As the district court explained:
Watson was not reassigned or denied the ability to becom e a driver-trainer. Nor was he limited in his opportunity to drive, or segregated from others who did not want to work with him. His training responsibilities were the sam e as other England driver-trainers, and he suffered no significant change in his compensation as a driver-trainer as a consequence of England’s use of the acknowledgment form. EEOC v. C.R. England, No. 2:06-CV-00811BSJ, slip op. at 20. The court further stated that “[t]he adverse employment consequence asserted by the EEOC . . . , namely that trainees were discouraged from working with [him] because of his disability as disclosed by the acknowledgment form, lacks evidentiary support in th[e] record.” Id. at 21. We agree with the district court that EEOC and Mr.
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Watson have not stated a viable claim under ADA § 102(b)(1).
At the outset, we acknowledge that an employer’s accommodation of the
discriminatory preferences of other employees, clients, or customers could, under
certain circumstances, expose the employer to liability for discrimination.12
However, as stated above, a viable claim of discrimination in this context must
still be predicated on an adverse employment action. The Tenth Circuit has
“liberally define[d] the phrase ‘adverse employment action,’” Sanchez v. Denver
12 See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073–74 (10th Cir. 1998) (Under Title VII, “[a]n employer who condones or tolerates the creation of [a hostile work] environment should be held liable regardless of whether the environment was created by a co-employee or a nonemployee [i.e., a customer], since the employer ultimately controls the conditions of the work environment.”); Lam v. Univ. of Haw., 40 F.3d 1551, 1560 n.13 (9th Cir. 1994) (“The existence of . . . third party preferences for discrimination does not, of course, justify discriminatory hiring practices.” (citing Diaz v. Pan Am. World Airways, 442 F.2d 385, 389 (5th Cir. 1971))); Erebia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250, 1258 (6th Cir. 1985) (“An employer intends discrimination where he condones racial harassment of employees.”); Abron v. Black & Decker (U.S.) Inc., 654 F.2d 951, 965 (4th Cir. 1981) (“Numerous cases have held that an employee may bring a Title VII suit against an employer who creates or condones a discriminatory work environment . . . .”); Diaz, 442 F.2d at 389 (“While we recognize that the public’s expectation of finding one sex in a particular role m ay cause some initial difficulty, it would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid.”); see also Pleener v. New York City Bd. of Educ., 311 F. App’x 479, 482 (2d Cir. 2009) (“We agree that federal law does not perm it an employer to discriminate based on race to accommodate the actual or perceived invidious biases of its clientele.” (citing Knight v. Nassau Cnty. Civil Serv. Comm’n, 649 F.2d 157, 162 (2d Cir. 1981))); cf. 29 C.F.R. § 1604.2(a)(1)(iii) (providing that the bona fide occupational qualification exception does not generally apply to “refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers”).
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Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998), and takes “a case-by-case approach, examining the unique factors relevant to the situation at hand,”Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004) (quotingSanchez, 164 F.3d at 531) (internal quotation marks omitted). In general, “[o]nly ‘acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits’ will rise to the level of an adverse employment action.” Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006) (quoting Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1268 (10th Cir. 2005)); accord Hillig, 381 F.3d at 1032–33 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). However, the term“adverse employment action” is not necessarily “limited to such acts.” Hillig, 381 F.3d at 1032–33; see, e.g., id. at 1031 (noting that an employer’s action that causes “harm to future employment prospects,” such as a negative job reference, can be considered an adverse employment action (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 986–87 (10th Cir. 1996))). But although the termis not confined to, for example, “monetary losses in the form of wages or benefits[,] . . . ‘a mere inconvenience or an alteration of job responsibilities’” does not constitute an “adverse employment action.” Sanchez, 164 F.3d at 532 (quoting Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Accordingly, a plaintiff must show that the alleged adverse action caused more than “de minimis harm” to or a “de
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minimis impact” upon an employee’s job opportunities or status. Hillig, 381 F.3d at 1033.
In this instance, as noted, EEOC and Mr. Watson allege that C.R. England discriminated against Mr. Watson by requiring potential trainees to sign an HIVacknowledgment form before training with him. However, C.R. England did not deny Mr. Watson the opportunity to become a trainer, demote him, or reassign him due to his HIV status. Indeed, Mr. Watson’s training responsibilities, duties, and compensation were the same as other driver-trainers, and there is no evidence that he was ever segregated from other employees or trainees. Furthermore, as discussed infra, the mere act of disclosing Mr. Watson’s HIV status did not in and of itself amount to an actionable adverse action under the ADA. See infra Part II.B. Nevertheless, EEOC argues that the acknowledgment form constitutes an actionable adverse action because it “condition[ed] [Mr. Watson’s] opportunity to be a trainer upon the disclosure of [his HIV status],” “limited his pool of trainees to only those students . . . willing to work with an HIV-positive trucker,” and “allow[ed] potential trainees to refuse to work with himbecause of his HIV.” EEOC Opening Br., No. 09-4207, at 47–48; see also Watson Opening Br., No. 094217, at 40–41 (arguing that the “disclosure [form] was improper because it allowed Defendant England to deny Plaintiff Watson the ability to train drivers,” and “[a]ny employer policy which grants the employees veto power over working with the disabled should be viewed as per se discrimination under the ADA”).
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Yet, EEOC and Mr. Watson have failed to put forth any evidence that Mr.
Watson’s opportunities as a trainer were actually limited in any respect. Only
one potential trainee, Mr. Seastrunk, was presented with the acknowledgment
form, and he willingly signed it and was subsequently trained by Mr. Watson.
Furthermore, C.R. England established by its evidence that there were abundant
trainees in the training pool—“several hundred at any one time.” Oral Argument
at 22:21. And appellants do not dispute this. Therefore, even if a potential
trainee had declined to work with Mr. Watson—which, again, did not occur in
this instance—that fact alone would not have impaired Mr. Watson’s ability to
function as a trainer, nor would it have prevented himfrom taking on another
trainee.13
13 EEOC also argues that Mr. Watson was faced with the “Hobson’s choice” of acquiescing to the use of the acknowledgment form or forgoing the opportunity to be a trainer altogether. In support of its argument, EEOC cites the unpublished Sixth Circuit decision Baker v. Windsor Republic Doors, Nos. 08-6200; 09-5722; 09-6553, 2011 WL 805768 (6th Cir. Mar. 8, 2011). In that case, the employee was told by his employer that he could not return to work unless and until he waived his right to claim workers’ compensation benefits arising from the accident that caused his disability. Id. at *3. The Sixth Circuit concluded that this amounted to an “adverse employment action” under the ADA. Id. at *7. EEOC argues that Baker is analogous to the situation presently before us because Mr. Watson, like Mr. Baker, was presented with a “Hobson’s choice”—viz., either disclose your medical information to potential trainees or forgo the opportunity to be employed as a trainer. Contrary to the case at bar, however, the plaintiff in Baker was prohibited from returning to work due to his objection to the employer’s request. In the present case, Mr. Watson was never prevented from working or participating in the training program. In fact, Mr. Watson consistently agreed to the form’s use, and never voiced any objection to
(continued...)
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In the end, the appellants’ arguments are insufficient to support this discrimination claim. EEOC and Mr. Watson have not demonstrated that the acknowledgment form had any meaningful impact or effect upon Mr. Watson’s employment opportunities or status; the potential that the acknowledgment form could have adversely affected his employment at some unknown time in the future, at least on this record, is not enough to support a claimunder the ADA. Even though some might frown upon C.R. England’s actions in effectively allowing trainees to decline to work with Mr. Watson because he has HIV, “not every perceived indignity will rise to the level of an adverse employment action.” Haynes, 456 F.3d at 1222; see also Hoffman v. Caterpillar, Inc., 256 F.3d 568, 575–76 (7th Cir. 2001) (“The idea behind requiring proof of an adverse employment action is simply that a statute which forbids employment discrimination is not intended to reach every bigoted act or gesture that a worker might encounter in the workplace.” (alteration omitted) (quoting Hunt v. City of Markham, Ill., 219 F.3d 649, 653 (7th Cir. 2000)) (internal quotation marks omitted)).
The authorities cited by EEOC do not convince us that a different outcome is warranted. EEOC cites Duda v. Bd. of Educ. of Franklin Park, 133 F.3d 1054,
13(...continued) C.R. England. Furthermore, even if Baker was on point, it is an unpublished, outof-circuit case that accordingly has no precedential value. We therefore find the EEOC’s argument unpersuasive.
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1059 (7th Cir. 1998), in support of its claim. In Duda, a school custodian who suffered from a mental disability brought an ADA discrimination claim against the school board when the employer, inter alia, “forced [him] to transfer to a new location and to work alone, under orders not to speak to others.” 133 F.3d at 1059. By contrast, C.R. England did not transfer Mr. Watson to a separate location, and there is no evidence that Mr. Watson was ever isolated fromother employees. Furthermore, in each of the cases cited by EEOC, the employee—as required under ADA jurisprudence—had been shown to have suffered an adverse impact or effect in relation to his employment opportunities or status. See id. at 1056 (addressing a situation where the plaintiff was forced to transfer to an entirely separate work location, was “told not to have conversations with others” at the new location, and “when he expressed an interest in applying for a better position, . . . he was told not to apply”);Lam, 40 F.3d at 1554, 1559 (indicating that the plaintiff had suffered from an “adverse employment decision” when the employer rejected her employment applications allegedly due to her race, sex, and national origin); Diaz, 442 F.2d at 385–86 (presenting situation where employer “refus[ed] to hire appellant . . . solely on the basis of [his]sex”). The appellants have not demonstrated that Mr. Watson has suffered any such adverse impact in this instance. As discussed above, Mr. Watson was not demoted, reassigned, or refused a promotion; his job responsibilities, duties, and compensation remained unchanged; and his opportunities and status as a trainer—in terms of availability
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of trainees and opportunities to train—were not shown to have been limited in any way. Moreover, the acknowledgment form, which was only given to one potential trainee, did not “carr[y] a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects.” Berry, 74 F.3d at 986.
In concluding that Mr. Watson did not suffer froman actionable adverse employment action in this instance, we do not foreclose the possibility as a matter of law that a co-worker consent policy—i.e., a policy that gives co-workers a veto on whether they work with or around a disabled employee—might under certain circumstances result in or bring about an adverse employment action under the ADA. We simply hold that EEOC and Mr. Watson have failed to make such a showing on the record before us. Accordingly, the district court did not err in granting summary judgment in favor of C.R. England on this claim.
2. Mr. Watson’s “Misdirection” Discrimination Claim Under Mr. Watson’s next discrimination claim, he asserts that he was discriminated against, in violation of the ADA, when C.R. England “misdirected [him] on several loads on his first training assignment.” Watson Opening Br., No. 09-4217, at 38. More specifically, Mr. Watson claims that C.R. England sent him “contradictory messages” regarding his loads, which “led him criss-crossing Omaha during rush hour while towing his trainee along.” Id. at 42. He asserts that this is an “adverse employment action” giving rise to a viable claim under the ADA.
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We disagree. We have held that “a mere inconvenience or an alteration of
job responsibilities” does not constitute an “adverse employment action.”
Sanchez, 164 F.3d at 532. The misdirection of loads that occurred in this case
was nothing more than a “mere inconvenience” that does not constitute an
actionable “adverse employment action.” Accordingly, Mr. Watson has failed to
assert a prima facie case. The district court therefore committed no error in granting summary judgment in favor of C.R. England on this claim.14
3. Mr. Watson’s Discriminatory Termination Claim
Mr. Watson claims that he was terminated—in his capacity as a trainer and
as a driver—because he was HIV-positive. See Watson Opening Br., No. 09-
4217, at 44 (“Once the upper management for Defendant England learned of
Plaintiff Watson’s disability, they moved to terminate Plaintiff Watson.”).
Because Mr. Watson has offered no direct evidence of discrimination, we apply
the McDonnell Douglas burden-shifting test to each claim of discriminatory
14 The district court granted summary judgment on this claim because Mr. Watson did not “point to significant probative evidence from which it may reasonably be inferred that England deliberately misdirected him as to new loads in the Omaha area . . . , and that it did so because of his HIV status.” EEOC v. C.R. England, No. 2:06-CV-00811BSJ, slip op. at 22. Although we ultimately affirm on an alternate ground supported by the record, see Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001), we agree with the district court that Mr. Watson has put forth no significant evidence demonstrating that C.R. England’s actions were motivated by a discriminatory animus, or that the company’s legitimate non-discriminatory justification—that these types of cancellations are commonplace—was merely pretextual.
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termination. MacKenzie, 414 F.3d at 1274. For purposes of this appeal, we assume that Mr. Watson can make out a prima facie case of discrimination. See Zamora, 478 F.3d at 1165 (assuming, without deciding, that the plaintiff had established a prima facie discriminatory termination claim under the ADA (citing Annett v. Univ. of Kan., 371 F.3d 1233, 1235, 1237 (10th Cir. 2004);McCowan v. All Star Maint., Inc., 273 F.3d 917, 923 (10th Cir. 2001))). Applying the burdenshifting test, we conclude that both of Mr. Watson’s termination claims fail as a matter of law, and therefore the district court did not err in granting summary judgment in C.R. England’s favor.
i. Termination as Trainer When C.R. England removed Mr. Watson from his trainer position, the stated reasons for the removal were: (1) he “sat up with [his] student and burned up [his] h[ou]rs”; (2) he “refused a load”; and (3) he “deadheaded . . . over 1000 miles home.” EEOC App. at 432. The supervisor further conveyed to Mr. Watson that she “would remove any trainer[,] especially a brand new trainer for any one of th[o]se reasons,” and that he “did not use good judgment[,] especially knowing that [he] w[as] on an automatic 90 day probation.” Id. These stated reasons—which on their face are legitimate and non-discriminatory—satisfy C.R. England’s “exceedingly light” burden. Goodwin v. Gen. Motors Corp., 275 F.3d 1005, 1013 (10th Cir. 2002) (quoting Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1363 (10th Cir. 1997)) (internal quotation marks omitted). The burden, therefore,
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shifts to Mr. Watson. In attempting to demonstrate that C.R. England’s proffered reasons for the
removal are pretextual, Mr. Watson asserts that the company’s justifications are not supported by the record. Specifically, he argues that (1) “there is no evidence that Plaintiff Watson improperly allocated hours for his student”; (2) he refused the load because he “was extremely frustrated with at least three load cancellations in a row”; and (3) “although [he] deadheaded home, Defendant England cites no rule or company policy which would require the termination of a trainer for deadheading home.” Watson Opening Br., No. 09-4217, at 44–45.15
“In determining whether the proffered reason for a decision was pretextual, we examine the facts as they appear to the person making the decision,” Zamora, 478 F.3d at 1166 (quoting Watts v. City of Norman, 270 F.3d 1288, 1295 (10th Cir. 2001)); we do not look to the plaintiff’s subjective evaluation of the situation, see McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1130 (10th Cir. 1998). Regarding the supervisor’s belief that he had inappropriately “burned up” his hours, Mr. Watson had told the driver manager that he had run out of hours. When asked why this was the case, Mr. Watson did not explain and instead
15 Mr. Watson also argues that he “did not abandon his student at a truck stop,” but instead “dropped the student at the truck stop under instructions from Defendant England.” Watson Opening Br., No. 09-4217, at 45. However, C.R. England did not cite abandonment of his trainee as a ground for his removal as a trainer. Mr. Watson’s argument, therefore, does not in any way undermine C.R. England’s stated reasons for the termination.
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simply refused the load. Moreover, regardless of whether Mr. Watson actually misallocated his hours, we are only concerned with whether the employer held a good-faith belief that he had done so; the evidence before us demonstrates that it did. See Sorbo v. United Parcel Serv., 432 F.3d 1169, 1178 (10th Cir. 2005) (indicating that the relevant inquiry “concerns the belief of the employer that the employee engaged in misconduct, not whether the actual facts, as shown by evidence extrinsic to the employer’s assessment, may have been otherwise.”). In the end, Mr. Watson has not put forth any evidence that undermines the sincerity of C.R. England’s stated justification—that is, he has not demonstrated it is “unworthy of belief.” Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004).
In regard to Mr. Watson’s load refusal, he does not dispute that he refused the load, and the evidence confirms that he did. Instead, Mr. Watson attempts to demonstrate pretext by giving a justification for his refusal, stating that he “was extremely frustrated with at least three load cancellations in a row.” Watson Opening Br., No. 09-4217, at 45. However, we fail to see how this excuse demonstrates pretext. “[A]n employer’s exercise of erroneous or even illogical business judgment does not constitute pretext.” Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1535 (10th Cir. 1995). And Mr. Watson’s “[m]ere conjecture that the employer’s explanation is pretext is insufficient to defeat summary judgment.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
As to C.R. England’s final justification—that he deadheaded home while 30

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training a new driver—Mr. Watson asserts that this is pretextual because the company “cites no rule or company policy which would require the termination of a trainer for deadheading home.” Watson Opening Br., No. 09-4217, at 45 (emphasis added). However, Mr. Watson cites no controlling precedent that in any way supports the proposition that an employer’s legitimate, nondiscriminatory justification must be based upon an official company rule or policy—much less be required by such a rule or policy—and we are not aware of any such precedent. See Medlock v. United Parcel Serv., Inc., 608 F.3d 1185, 1192–93 (10th Cir, 2010) (rejecting the argument, asserted by the plaintiff in an age discrimination case, “that an otherwise reasonable justification for a business decision somehow loses its legitimacy simply because it reflects an exercise of managerial judgment rather than a ministerial execution of written policy—as if a manager could not legitimately fire an employee for vandalizing property, stealing from co-workers, or assaulting a customer absent a formal company policy specifically addressing such misconduct”).
It is true that a failure to follow company policy can support a finding of pretext in some circumstances. See Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1119 (10th Cir. 2007) (“It is well-established that pretext can be shown by ‘evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances.’” (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.
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2000))). However, we discern no basis for concluding that an otherwise reasonable justification by an employer should be deemed pretextual merely because it is not directly reinforced by an official rule or policy. This “facially untenable idea . . . is belied by countless employment discrimination cases decided on the basis of legitimate business justifications without any reference to formal policies necessarily legitimizing those justifications.” Medlock, 608 F.3d at 1193. Accordingly, Mr. Watson’s argument does nothing to cast doubt on C.R. England’s otherwise legitimate and non-discriminatory justification. In sum, Mr. Watson has not met his burden to demonstrate that “the employer’s proffered explanation is unworthy of credence.” Zamora, 478 F.3d at 1166 (quoting Stinnett, 337 F.3d at 1218) (internal quotation marks omitted).
ii. Termination as Driver Mr. Watson next argues that C.R. England terminated his employment as an independent-contractor driver for the company due to his HIV status. As discussed above, after Mr. Watson deadheaded to Florida he remained there for a period of more than two weeks with his leased truck; he did not accept new loads, generate any income, or make lease payments on his truck. During this time, C.R. England attempted to contact Mr. Watson, but received no response. On March 4, 2003, C.R. England terminated Mr. Watson’s Lease Agreement, and Opportunity Leasing repossessed his truck. In justifying the severance of the relationship, C.R. England cites Mr.
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Watson’s (1) “poor performance,” which includes failing to respond and accept loads, and (2) the fact that he defaulted on his lease (i.e., falling “too far in the []hole to recover,” EEOC App. at 435). C.R. England Br., No. 09-4217, at 41. Again, these justifications satisfy C.R. England’s “exceedingly light” burden, Goodwin, 275 F.3d at 1013, which shifts the burden to Mr. Watson to demonstrate pretext.
Mr. Watson does not attempt to undermine the justifications regarding his “poor performance” or his failure to make required payments under the lease agreement; therefore, he has not shown that these legitimate, non-discriminatory justifications are “unworthy of belief.” Stover, 382 F.3d at 1071. Because Mr. Watson has not demonstrated that these justifications were “pretext masking discriminatory animus,” Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007) (quoting Piercy, 480 F.3d at 1198) (internal quotation marks omitted), this claim is without merit.
Although Mr. Watson does not attempt to undermine the justifications discussed above, he does attack an alleged third “justification”—that he “abandoned his vehicle.” Mr. Watson argues that he “never abandoned his vehicle,” which “clearly shows pretext.” Watson Opening Br., No. 09-4217, at 45. However, the record demonstrates that C.R. England never justified the termination on the ground that Mr. Watson had “abandoned” his truck. The record evidence that Mr. Watson identifies related to vehicle abandonment is
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unavailing. Specifically, Mr. Watson points to the deposition of Kimberly Cage, the manager of training operations, who testified that another C.R. England employee had told her four years prior that Mr. Watson “had abandoned his truck.” Watson App. at 619 (Dep. of Kimberly Cage, dated July 11, 2007). Examined in context, this single statement—which was not otherwise used to justify the termination—is not enough to establish pretext, particularly in light of the above-cited justifications, which we find to be legitimate and nondiscriminatory. See Zamora, 478 F.3d at 1178 (“[T]his Court frequently examines statements and events in context to determine their legal effect or whether they genuinely create a disputed question of material fact.”). Accordingly, Mr. Watson cannot demonstrate that C.R. England’s justifications for terminating the lease agreement were pretextual, and the district court committed no error in entering judgment in the company’s favor.
B. EEOC & Mr. Watson’s ADA § 102(d) Disclosure Claim EEOC and Mr. Watson next assert that C.R. England violated ADA § 102(d), 42 U.S.C. § 12112(d), by disclosing medical information concerning Watson’s HIV-positive status to a potential trainee, as well as to other C.R. England employees. C.R. England argues on appeal, as it did before the district court, that this claim fails for two reasons. First, it argues that § 102(d) does not apply to voluntarily disclosed medical information that was not gleaned from a medical examination or inquiry. Second, it argues that Mr. Watson did not suffer
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a sufficient “cognizable injury” to sustain a claim under ADA § 102(d). We agree with C.R. England’s first contention—that ADA § 102(d) does not protect voluntarily disclosed information—and therefore need not opine regarding its second argument.
Section 102(d) of the ADA governs “medical examinations and inquiries.” 42 U.S.C. § 12112(d). That section covers medical examinations and inquiries in three distinct instances: (a) preemployment, ADA § 102(d)(2), 42 U.S.C. § 12112(d)(2); (b) post-offer, ADA § 102(d)(3), 42 U.S.C. § 12112(d)(3); and (c) during the employment relationship, ADA § 102(d)(4), 42 U.S.C. § 12112(d)(4). Although ADA § 102(d)(2) prohibits employers from making certain pre-employment inquiries, the provisions of ADA § 102(d)(3) and (4) permit employers to conduct certain medical inquiries and examinations. More specifically, ADA § 102(d)(3) permits an employer to conduct post-offer entrance medical examinations under certain circumstances, see 42 U.S.C. § 12112(d)(3), and ADA § 102(d)(4) permits employers to “conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site,” 42 U.S.C. § 12112(d)(4)(B).
Any information obtained through a post-offer entrance medical examination under § 102(d)(3) or a voluntary medical examination or inquiry under § 102(d)(4) must be “treated as a confidential medical record.” 42 U.S.C.
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§§ 12112(d)(3)(B), (d)(4)(C); see also 29 C.F.R. § 1630.14(c)(1) (“Information obtained under paragraph (c) of this section regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record,” subject to limited exceptions.) Disclosure of confidential information obtained through an authorized medical examination or inquiry would constitute a violation of § 102(d) and could give rise to a claimunder the ADA. See 42 U.S.C. § 12112(d)(3)(C) (stating that the results of an examination conducted under the authority of § 102(d)(3) or § 102(d)(4) must be “used only in accordance with this title”); see also McPherson v. O’Reilly Auto., Inc., 491 F.3d 726, 732 (8th Cir. 2007) (“The ADA prohibits an employer from disclosing confidential medical information about an ex-employee . . . .” (citing Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir. 1999))).
On its face, § 102(d) does not apply to or protect information that is voluntarily disclosed by an employee unless it is elicited during an authorized employment-related medical examination or inquiry. See generally United States v. Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010) (“Our interpretation of a statute begins with its plain language.”). Indeed, the only mention of the word “voluntary” appears in § 102(d)(4)(B), which refers to “voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site.” 42 U.S.C.
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§ 12112(d)(4)(B) (emphasis added). However, this provision does not expressly include voluntarily disclosed medical information offered outside the context of “an employee health program.” Id. Because the plain language of the statute is silent with regard to such information, it perforce cannot be interpreted as extending the protections of § 102(d)’s confidentiality restrictions to such information. In sum, if an employer discloses medical information that was voluntarily offered by an employee—outside of the context of an authorized employment-related medical examination or inquiry—then the employer is not subject to liability under § 102(d).
The Eleventh Circuit, which is the only other circuit court that has definitively reached this issue, has likewise concluded that voluntarily disclosed medical information is not protected under ADA § 102(d). In Cash v. Smith, the court held that § 102(d) did not apply to medical information voluntarily disclosed by an employee to her supervisor—even though the disclosure was done “in confidence”—and therefore the supervisor’s disclosure of that information to other employees did not violate the ADA § 102(d). 231 F.3d 1301, 1303, 1307 (11th Cir. 2000) (“[T]he disclosure that Cash complains of was not of the result of an examination ordered by [the employer], but of a voluntary disclosure that Cash made to [her supervisor]. The statute and regulation cited by Cash [i.e., ADA § 102(d) and 29 C.F.R. § 1630.14(c)] do not govern voluntary disclosures initiated by the employee, and therefore the district court correctly granted [the
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employer’s] motion for summary judgment on this count.”).16
The parties do not dispute that Mr. Watson voluntarily disclosed to Ms.
Johansen that he was HIV-positive, and neither party suggests that Mr. Watson’s
disclosure was the result of any sort of examination or inquiry. See EEOC v. C.R.
England, No. 2:06-CV-00811BSJ, slip op. at 16 n.6 (“Nothing in the parties’
memoranda suggests that any [C.R. England] employee asked Watson a question
likely to elicit information about Watson’s HIV status.”). Accordingly, the
16 EEOC cites its own Enforcement Guidance as support for the proposition that voluntarily disclosed medical information is protected by § 102(d). This argument is based on an assertion found in this Enforcement Guidance, which states that “[t]he ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination . . . as well as any medical information voluntarily disclosed by an employee, as a confidential medical record.” EEOC App. at 1112 (alteration in original) (emphasis added) (quoting EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 27, 2000)) (internal quotation marks omitted). However, as the district court properly noted, EEOC’s interpretations are not controlling; the cited guidance document is only entitled to our respect to the extent that it has the “power to persuade.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 n.6 (2002) (quoting Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)) (internal quotation marks omitted). EEOC also acknowledges the non-binding effect of its guidance document. See EEOC Opening Br., No. 09-4207, at 59 (stating that EEOC’s guidelines “are not controlling upon the courts by reason of their authority, but they do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance” (quoting Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999)) (internal quotation marks omitted)). In this instance, EEOC’s guidance does not persuade us because it is not consistent with the plain language of the statute. Furtherm ore, the Enforcement Guidance states elsewhere that “[o]nly disability-related inquiries and medical examinations are subject to the ADA’s restrictions.” EEOC App. at 1113.
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information Mr. Watson voluntarily provided to C.R. England was not protected by § 102(d), and the company’s disclosure of this information did not violate that provision. As a matter of law, C.R. England was entitled to judgment on this issue, and the district court’s grant of summary judgment in favor of the company was not erroneous.
C. Mr. Watson’s Reasonable Accommodation Claim Mr. Watson next asserts that C.R. England violated the ADA by denying his request for “home time.” He claims that by refusing his request, C.R. England failed to provide the “reasonable accommodations” for his disability that the ADA requires. The district court entered summary judgment in favor of C.R. England on this claim because Mr. Watson had failed to show that he needed “‘home time’ both prior to and following his arrival in Omaha,” and because “he made no reference to any disability in his request for ‘home time’” that would put C.R. England “on notice that a reasonable accommodation was being requested under the ADA.” Id. at 25. Under ADA § 102(b)(5)(A), an employer can unlawfully “discriminate” against an employee by failing to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee.” 42 U.S.C. § 12112(b)(5)(A); accord Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996). “The statute thus establishes a cause of action for disabled employees whose employers fail to
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reasonably accommodate them.” Selenke v. Med. Imaging of Colo., 248 F.3d

1249, 1261 (10th Cir. 2001).

The Act defines “reasonable accommodation” to include:

(A) making existing facilities used by em ployees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-tim e or m odified work schedules,

reassignment to a vacant position, acquisition or modification of

equipment or devices, appropriate adjustment or modifications of

examinations, training m aterials or policies, the provision of

qualified readers or interpreters, and other sim

ilar

accommodations for individuals with disabilities.

42 U.S.C. § 12111(9)(A)–(B); see also 29 C.F.R. § 1630.2(o) (defining

“reasonable accommodation”). We have held that, under the appropriate

circumstances, “[a]n allowance of time for medical care or treatment may

constitute a reasonable accommodation.” Rascon v. U S W. Commc’ns, Inc., 143

F.3d 1324, 1333–34 (10th Cir. 1998); see also Hudson v. MCI Telecommc’ns

Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (“This court agrees with plaintiff that

a reasonable allowance of time for medical care and treatment may, in appropriate

circumstances, constitute a reasonable accommodation.”).

“To facilitate the reasonable accommodation, ‘[t]he federal regulations

implementing the ADA envision an interactive process that requires participation

by both parties.’” Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir.

2004) (alteration in original) (quoting Templeton v. Neodata Servs., Inc., 162 F.3d

617, 619 (10th Cir. 1998)); see also 29 C.F.R. § 1630.2(o)(3). However, before

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an employer’s duty to provide reasonable accommodations—or even to participate in the “interactive process”—is triggered under the ADA, the employee must make an adequate request, thereby putting the employer on notice. See, e.g., Midland Brake, 180 F.3d at 1171 (“In general, the interactive process must ordinarily begin with the employee providing notice to the employer of the employee’s disability and any resulting limitations . . . .”); Woodman v. Runyon, 132 F.3d 1330, 1345 (10th Cir. 1997) (“The ‘employee’s initial request for an accommodation . . . triggers the employer’s obligation to participate in the interactive process.’” (quoting Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996))); see also, e.g., Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir. 2010) (“[E]ither by direct communication or other appropriate means, the employee must make clear that the [he/she] wants assistance for his or her disability.” (alterations in original) (emphasis added) (quoting Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003)) (internal quotation marks omitted)); Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 23 (1st Cir. 2004) (“The request for accommodation must be sufficiently direct and specific, giving notice that she needs a special accommodation.” (quoting Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001)) (internal quotation marks omitted)).
Although the notice or request “does not have to be in writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation,’”
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it “nonetheless must make clear that the employee wants assistance for his or her disability.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999) (emphasis added). That is, “the employer must know of both the disability and the employee’s desire for accommodations for that disability.” Id.; see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (“An employee is not required to use any particular language when requesting an accommodation but need only ‘inform the employer of the need for an adjustment due to a medical condition.’” (quoting Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 n.5 (9th Cir. 2000) (en banc), vacated on other grounds by 535 U.S. 391 (2002))); see also Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 1999 WL 33305876, at *4 (Mar. 1, 1999) (“When an individual decides to request accommodation, the individual . . . must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable accommodation.’”).
In this instance, Mr. Watson’s accommodation claim fails because he did not make an adequate request for reasonable accommodation regarding his alleged disability.17 Therefore, C.R. England’s obligation under the ADA to provide
17 As previously stated, we need not opine on whether Mr. Watson in (continued...)
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reasonable accommodation was never triggered. The first time Mr. Watson requested “home time,” on February 11, 2003, the stated reason was “family time.” EEOC App. at 1035. Although C.R. England had been informed of his HIV-positive status by this time, a request for time off for “family time” would in no way put the company on notice that he needed time off due to his illness, if he in fact did. Furthermore, when C.R. England denied Mr. Watson’s request because it was not made two weeks in advance in accordance with company policy, he did not object; more to the point, Mr. Watson did not indicate that the time off was needed for his medical impairment—to the contrary, Mr. Watson replied: “Ok, just when ava[i]lable.” Id. at 1038.
Mr. Watson’s second “request” for time off occurred during an exchange with a C.R. England employee over the Qualcomm system. During that communication, which took place the day after the initial request, Mr. Watson stated that “[he] need[ed] home time, and [he] c[ould] not wait two more weeks.” Id. at 426. Again, Mr. Watson gave no indication that he needed time off due to his HIV status. As with his initial request, Mr. Watson’s second demand for time off was denied because he had failed to provide “2 weeks notice.” Id. at 427.
Following this second denial, Mr. Watson informed the C.R. England employee that he was leaving Omaha because couldn’t handle the “stress level”
17(...continued) fact had a disability within the meaning of the ADA. See supra note 7.
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and that he was “dead heading to [his] family house in [Florida]”; he further indicated that this was “where [his] [doctor] is, and [he had] to see [his doctor].” Id. at 428. This fleeting reference to his “doctor”—which was seemingly made in conjunction with his unmanageable “stress level,” not his alleged disability—is insufficient to place the company on notice that he needed time off due to his alleged disability (i.e., his HIV-positive status). In some circumstances, an employee’s reference to the need to see a physician may constitute significant proof that the employee was seeking a reasonable accommodation, especially when combined with an actual request for time off and some reference to the employee’s disability. However, we need not endeavor here to detail those circumstances under which a physician reference would constitute such significant proof. It suffices for us to observe that Mr. Watson’s physician reference does not come anywhere close to the mark.
In sum, Mr. Watson’s two requests for home time—which were for “family time,” rather than his illness—and his after-the-fact, fleeting statement mentioning a need to see his doctor, did not put C.R. England on notice that Mr. Watson was requesting reasonable accommodation due to his HIV status. Therefore, his requests did not trigger the company’s duty under ADA § 102(b)(5). Accordingly, the district court did not err in granting summary judgment in favor of C.R. England on this claim.
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Mr. Watson next asserts a claim of retaliation under the ADA, arguing that
C.R. England impermissibly retaliated against him by sending the debt he owed
under the Lease Agreement to a collection agency in response to the complaint he
filed with EEOC.18 Under ADA § 503—which prohibits employer “retaliation and
coercion”—“[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C.
§ 12203(a). In order to establish a prima facie case of retaliation under the ADA,
Mr. Watson must demonstrate “(1) that he engaged in protected opposition to
discrimination, (2) that a reasonable employee would have found the challenged
18 Mr. Watson also asserts that C.R. England retaliated against him by disseminating false information. However, he cites no evidence in support of this accusation; in fact, his argument with regard to this claim—in its entirety—states that “Defendant England has disseminated false material regarding Plaintiff Watson.” Watson Opening Br., No. 09-4217, at 48. Under the federal appellate rules, an “appellant’s brief must contain . . . appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A) (emphasis added). “Consistent with this requirement, we routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007); see also Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004) (“Scattered statements in the appellant’s brief are not enough to preserve an issue for appeal.”). Because Mr. Watson has failed to present any argument or authority in support of this particular retaliation claim, we decline to further consider it on appeal. See Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 810 (10th Cir. 2004) (“It is well-settled in this Circuit that an issue listed, but not argued in the opening brief is waived.”).
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action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” Proctor, 502 F.3d at 1208 (10th Cir. 2007) (quoting Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)) (internal quotation marks omitted).
Because Mr. Watson has offered no direct evidence of discrimination regarding C.R. England’s report of his debt to the collection agency, we analyze his retaliation claim under the burden-shifting framework delineated in McDonnell Douglas. Proctor, 502 F.3d at 1207–08. In this instance, Mr. Watson’s retaliation claim fails for two reasons: (1) he has not demonstrated a causal connection between the protected activity and the materially adverse action, and therefore he cannot make out a prima facie case; and (2) even if he could make out a prima facie case of retaliation, C.R. England has put forth a “legitimate, nondiscriminatory reason” for attempting to collect the debt, which Mr. Watson has not shown is mere “pretext masking discriminatory animus,” id. (quoting Piercy, 480 F.3d at 1198) (internal quotation marks omitted).
First, under the evidence presented, Mr. Watson has not shown a “causal connection” between his filing of the EEOC complaint and the collection of his debts owed under the Lease Agreement. A “causal connection” between a protected action and a subsequent adverse action can be shown through “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Id. at 1208 (quoting Haynes, 456
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F.3d at 1228) (internal quotation marks omitted). Although the record does not include the precise amount of time that passed between the filing of the complaint and the reporting of the debt, Mr. Watson acknowledges in his brief that the submission of his debt to the collection agency “occurred well over a year after the initial dispute,” Watson Opening Br., No. 09-4217, at 48, which is too large of a gap to raise an inference of retaliatory motive on its own, see, e.g., Proctor, 502 F.3d at 1208 (finding that a four-month gap between the protected action and the alleged retaliatory action was “too large a time gap to establish a causal connection”); Piercy, 480 F.3d at 1198 (stating that “an adverse employment action that happened more than three months after the protected activity was not entitled to a presumption of causation”).
If the adverse employment action was not “very closely connected in time to the protected activity”—which, as Mr. Watson concedes, it was not in the present case—“the plaintiff must rely on additional evidence beyond temporal proximity to establish causation.” Piercy, 480 F.3d at 1198 (quoting Coors Brewing Co., 181 F.3d at 1179) (internal quotation marks omitted). The only additional evidence presented by Mr. Watson was that the company failed to abide by an arbitration provision contained in the ICOA and Lease Agreement. However, he fails to explain how this establishes a causal connection between his EEOC complaint and the alleged adverse action of sending his debt to a collection agency, and we do not think that it does so. Because he offers no other evidence
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to demonstrate the necessary connection, Mr. Watson has failed to establish a prima facie case of retaliation.
In addition, even if Mr. Watson could make out his prima facie case, C.R. England has offered a legitimate, non-discriminatory reason for reporting the debt to a collection agency. Specifically, it has demonstrated that the amount charged off was a “just debt” that Mr. Watson “genuinely owed” under the lease agreement. C.R. England Br., No. 09-4217, at 46. Mr. Watson does not contest this on appeal.
Because the company has put forth an acceptable justification for its actions, the burden then shifted back to Mr. Watson to show that C.R. England’s proffered reason was mere pretext. Proctor, 502 F.3d at 1208. As discussed above, Mr. Watson can meet this burden “by demonstrating ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.’” Coors Brewing Co., 181 F.3d at 1179 (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). However, “[m]ere conjecture that the employer’s explanation is pretext is insufficient to defeat summary judgment.” Id.
In arguing that C.R. England acted with a discriminatory animus, Mr. Watson states that “Defendant England’s actions can only be viewed as an
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intimidation tactic to dissuade Plaintiff Watson from pursuing his ADA complaint,” because the company did not abide by the arbitration provision. Watson Opening Br., No. 09-4217, at 48. According to Mr. Watson, because the company “clearly waived [its] rights under the Leasing Agreement by not requesting arbitration” within the one-year time limit contained in the agreement, the company’s continuing attempts to collect the debt—which he does not dispute that he owes—can only be motivated by a discriminatory animus. Id.
We fail to see how this demonstrates pretext. In fact, Mr. Watson’s assertion that the company’s use of a collection agency is an “intimidation tactic to dissuade [him] from pursuing his ADA complaint” is undermined by the fact that C.R. England notified him in April 2003 that it would “pursue the collection . . . through all legal channels including collections agencies,” EEOC App. at 606, before he filed his initial complaint with the EEOC in August 2003. Furthermore, although the Lease Agreement contained an arbitration provision, it also provided that any “default in the payment of any amount due” under the agreement could be “placed in the hands of an agency or attorney for collections or legal action,” and that Mr. Watson would bear the cost of such collection. EEOC App. at 337–47. Under these facts, Mr. Watson has not shown that C.R. England’s proffered reason for sending the debt to a collection agency was pretext for discrimination—that is, he has not met his burden to show that C.R. England’s legitimate, non-discriminatory justification is “unworthy of belief.” Stover, 382
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F.3d at 1071. Accordingly, C.R. England is entitled to judgment as a matter of law on this claim, and the district court did not err in granting summary judgment in its favor.
III. State Law Claims A. Mr. Watson’s Intentional Infliction of Emotional Distress Claim Mr. Watson next argues that the district court erred in granting summary
judgment in C.R. England’s favor on his intentional infliction of emotional distress claim.19
To state a claim for intentional infliction of em otional distress, a party m ust plead facts indicating that the defendant “intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting em otional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.” Anderson Dev. Co. v. Tobias, 116 P.3d 323, 338 (Utah 2005) (quoting Bennett v. Jones, Waldo, Holbrook & McDonough, 70 P.3d 17, 30 (Utah 2003)); accord Cabaness v. Thomas, 232 P.3d 486, 499 (Utah 2010). “[I]t is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Cabaness, 232
19 As noted, Mr. Watson does not contest on appeal the district court’s decision granting summary judgment in favor of C.R. England on his negligent infliction of emotional distress claim. See supra note 6.
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P.3d at 499 (quoting Gygi v. Storch, 503 P.2d 449, 450 (1972)) (internal quotation marks omitted).
In order for conduct to be considered “extreme or outrageous,” it “must evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair.” Franco v. Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 207 (Utah 2001). A defendant’s intentional behavior does not necessarily meet this standard “merely because it is tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal.” Id. Furthermore, in the employment context—as this case is—“liability under the tort of intentional infliction of emotional distress . . . may be found only where the conduct complained of has been so extreme in degree as to go beyond all possible bounds of decency, so as to be regarded as atrocious and utterly intolerable in a civilized society.” Oman v. Davis Sch. Dist., 194 P.3d 956, 970 (Utah 2008).
In granting summary judgment in favor of C.R. England, the district court concluded that the company’s “conduct in presenting Watson’s trainee with the acknowledgment form disclosing [his] HIV status may not be reasonably regarded as extreme or outrageous.” EEOC v. C.R. England, No. 2:06-CV-00811BSJ, slip op. at 27. We agree. Although some might view C.R. England’s use of the HIVacknowledgment form as “unreasonable” or “unfair,” we would be hard-pressed to conclude that its actions qualify as “revulsi[ve]” or “so extreme in degree as to go beyond all possible bounds of decency, so as to be regarded as atrocious and
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utterly intolerable in a civilized society.” Franco, 21 P.3d at 207. Because Mr. Watson cannot satisfy this element of his intentional infliction of emotional distress claim, C.R. England is entitled to judgment as a matter of law. Accordingly, the district court did not err in granting summary judgment in C.R. England’s favor on this claim.
B. Mr. Watson’s Invasion of Privacy Claim Mr. Watson also brings a second claim under Utah law—invasion of privacy—based on a theory of public disclosure of private embarrassing information. Mr. Watson asserts that C.R. England invaded his privacy when it disclosed his HIV-positive status to a potential trainee and other C.R. England employees. To prevail on his claim for invasion of privacy based on public disclosure of private information, Mr. Watson must establish three elements:
(1) the disclosure of the private facts must be a public disclosure and not a private one; (2) the facts disclosed to the public must be private facts, and not public ones; (3) the m atter made public m ust be one that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities. Shattuck-Owen v. Snowbird Corp., 16 P.3d 555, 558 (Utah 2000). Under the first element, “public disclosure” has been interpreted to “mean[] that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public
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Appellate Case: 09-4217 Document: 01018633302 Date Filed: 05/03/2011 Page: 53 knowledge.” Id. (quoting Restatement (Second) of Torts § 652D cmt. a (1977)) (internal quotation marks omitted). On the other hand, “communicating a private fact ‘to a small group of persons’ . . . does not constitute public disclosure.” Id. at 558–59 (quoting Restatement (Second) of Torts § 652D cmt. a). As a matter of law, summary judgment was properly entered in favor of C.R. England because the disclosure to one potential trainee and a handful of C.R. England employees does not constitute “public disclosure.” See id. (concluding that disclosure to twelve or thirteen people did not constitute public disclosure). Accordingly, the district court did not err in entering judgment in favor of C.R. England on this claim. CONCLUSION Based on the foregoing, we AFFIRM the district court’s grant of summary judgment in favor of C.R. England on all of EEOC’s and Mr. Watson’s claim s.20
20 EEOC’s pending motion to seal its Opening Brief and specified appendices is GRANTED.
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 Case 2:06-cv-00811-BSJ Document 78 Filed 05/19/08 Page 1 of 31

Mary Jo O'Neill AZ #005924 Sally C. Shanley AZ #012251 Valerie L. Meyer CA #228586 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PHOENIX DISTRICT OFFICE 3300 N. Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: 602-640-5020 Fax: 602-640-5009 Valerie.Meyer@eeoc.gov
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. C. R ENGLAND, INC.
Defendant.

Case No. 2:06-CV-00811-BSJ
Senior Judge Bruce S. Jenkins
PLAINTIFF EEOC’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF EEOC

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, Plaintiff Equal
Employment Opportunity Commission (“Plaintiff” or “EEOC” or “Commission”) hereby
submits its Memorandum in Opposition to Defendant C.R. England’s (“Defendant” or
“England”) Motion for Summary Judgment Against Plaintiff EEOC.
TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 2 STATEMENT OF CONTESTED FACTS ................................................................................. 3 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS ............................... 3 ARGUMENT................................................................................................................................. 9
I. SUMMARY JUDGMENT STANDARD ........................................................................ 9 II. THE ADA PROTECTS WATSON ........................................................................... 10
a. THE HYBRID TEST IS THE APPROPRIATE STANDARD FOR DETERMINING WATSON’S EMPLOYMENT STATUS ........................................... 11 b. WATSON IS AN EMPLOYEE UNDER THE HYBRID TEST ............................ 13

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i. Watson, as a Lease Operator, was an employee of England............................... 13 ii. Watson, as a Trainer and Lease Operator, was an employee of England......... 19 c. WATSON IS ALSO A JOB APPLICANT ............................................................... 20 III. THE EEOC HAS ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION AGAINST WATSON ......................................................................... 21 a. Defendant Is Not Entitled to Summary Judgment on EEOC’s Section 102(d) Claim (Disclosure of Medical Information)...................................................................... 21 b. Defendant Is Not Entitled to Summary Judgment on EEOC’s Section 102(b)(1) Claim (Limiting, Segregating, or Classifying).................................................................. 26 c. Defendant Is Not Entitled to Summary Judgment on EEOC’s Section 503(b) Claim (Interference, Threats & Coercion) ....................................................................... 27 CONCLUSION ........................................................................................................................... 30
INTRODUCTION The EEOC asserts three causes of action pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA) on behalf of Walter Watson. The EEOC contends that England: (1) discriminated against Watson by disclosing and requiring Watson to disclose confidential medical information concerning his status as HIV-positive to trainees prior to permitting them to train with him in violation of Section 102(d), 42 U.S.C. § 12112(d); (2) discriminated against Watson by limiting, segregating, or classifying Watson in a way that adversely affected his opportunities or status because of his disability, HIV, in violation of Section 102(b)(1), 42 U.S.C. § 12112(b)(1); and (3) violated Section 503(b), 42 U.S.C. § 12203(b), by coercing, intimidating, threatening or interfering with Watson in the enjoyment of, or on account of his having exercised or enjoyed, any right granted or protected by the ADA. Defendant’s Motion addresses only the first two of these three claims; therefore, its claim under Section 503(b) must survive.1 As set forth below and in Plaintiff EEOC’s Motion for Partial Summary Judgment (Doc. 65), incorporated herein by reference, Defendant England is not entitled to summary judgment as to any of these claims, as genuine issues of material fact exist as
1 Defendant also limits its challenge to the EEOC’s claims to its ability to establish a prima facie case, therefore, the EEOC similarly limits its discussion and response to the prima facie case.
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to each of them. Watson was an employee of England, is a qualified individual with a disability, and was subjected by Defendant to violations of three separate provisions of the ADA, and Defendant cannot establish the absence of genuine issues of material fact regarding any of these three claims.
STATEMENT OF CONTESTED FACTS Plaintiff EEOC hereby incorporates by reference its Sealed Supplemental Memorandum: Plaintiff EEOC’s Sealed Disputation of Defendant’s Statement of Facts in Support of Its Motion for Summary Judgment Against EEOC, filed this date under seal pursuant to the Court’s March 12, 2007 Confidentiality Order (Doc. 21) and the Court’s October 30, 2007 Order Sealing the Depositions of Walter Watson (Doc. 41). PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED FACTS Plaintiff EEOC hereby incorporates by reference its Statement of Facts in Support of Its Motion for Partial Summary Judgment (Doc. 66) (“PSF”), its Sealed Statement of Facts in Support of Its Motion for Partial Summary Judgment (Doc. 67) (“SSF”), and Sealed Supplemental Memorandum: Plaintiff EEOC’s Sealed Statement of Facts in Support of Its Response in Opposition to Defendant’s Motion for Summary Judgment Against EEOC (“SSF2”), filed this date under seal pursuant to the Court’s March 12, 2007 Confidentiality Order (Doc. 21) and the Court’s October 30, 2007 Order Sealing the Depositions of Walter Watson (Doc. 41). The facts below, numbered 126 through 166, shall be cited as “PSF2.” Watson Was an Employee of England as a Lease-Operator Driver 126. Opportunity Leasing is a sister company of Defendant C.R. England. (Ex. 30, Deposition of Nelson Hayes, hereinafter Hayes Dep. 42:11-19). Both companies have the same owners. (Ex. 30, Hayes Dep. 62:4-19). 127. C.R. England was not a party to the Vehicle Lease Agreement between Opportunity Leasing and Watson. (Def.’s Ex. C, Vehicle Lease Agreement).
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128. Allegedly pursuant to laws and regulations, Defendant imposed the following controls on Watson: a. Watson was required to keep and maintain systematic records of his Equipment’s repair and maintenance and forward such records to Defendant on request (Def’s Ex. B, ICOA ¶ 6(A)); b. Watson was required to apply identification designed by Defendant to his Equipment (Def’s Ex. B, ICOA ¶ 6(B)); c. Watson was required to adhere to limitations on his hours of service; (Def’s Ex. B, ICOA ¶ 6(C)) d. Watson was not permitted to have any passengers ride in his Equipment unless Defendant authorized it in writing, in advance (Def’s Ex. B, ICOA ¶ 6(F)); e. Watson was not permitted to operate his own Equipment for another motor carrier without Defendant’s prior written consent. Defendant had “exclusive possession, control and use of the Equipment” for the duration of its lease agreement with Watson (Def’s Ex. B, ICOA ¶ 8);
129. Defendant has the right to review all of Watson’s documents and records relating to his use of Opportunity Leasing’s equipment and to the services provided under the ICOA, but Watson has a limited right to view Defendant’s documents relating to analogous documents of Defendant, including documents from which rates and charges are computed. (Def.’s Ex. B, ICOA ¶ 2).
130. Defendant required Watson to regularly submit documentation beyond that which was required by laws and regulations. (Def.’s Ex. B, ICOA ¶ 6(E)).
131. Defendant, not Watson, made all arrangements for the leasing of trailers. (Ex. 32, Rule 30(b)(6) Deposition of C.R.England, hereinafter C.R. England 30(b)(6) Dep., 6:12-21).
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132. Watson must have all trailer maintenance performed at facilities designated or approved by Defendant. (Def.’s Ex. B, ICOA ¶ 5).
133. Watson was required to maintain his own equipment in accordance not only with laws and regulations, but also in accordance with Defendant’s own safety policies. (Def.’s Ex. B, ICOA ¶ 6(A)).
134. Watson was required to make his own equipment available for inspection by Defendant “at any time upon reasonable request,” not just on those occasions when inspections were required by federal regulations. (Def.’s Ex. B, ICOA ¶ 6(A)).
135. Watson was required to remove “any paint, decals, or other items” on his own equipment that Defendant believed would “be otherwise offensive,” regardless of whether it interfered with the identifications on the equipment required by other authorities. (Def.’s Ex. B, ICOA ¶ 6(B)) (emphasis added). Watson was not permitted to place any “paint, artwork, logo, or design” on his own equipment without Defendant’s prior written consent. Id.
136. Defendant had the right to require Watson to remark or repaint his own equipment at Watson’s expense. (Def.’s Ex. B, ICOA ¶ 6(B)).
137. Any drivers hired by Watson to perform his work under the ICOA had to not only meet the requirements of regulations, but also Defendant’s company qualifications. (Def.’s Ex. B, ICOA ¶ 6(D)). Defendant could disqualify any driver provided by Watson if the driver was, in its discretion, “unsafe, unqualified or disqualified pursuant to federal or state law, in violation of [Defendant’s] minimum qualification standards, or otherwise imcompetent.” (Def.’s Ex. B, ICOA ¶ 6(D)(iv)).
138. Defendant gives the same road tests to both company drivers and lease operators. (Ex. 32, C.R. England 30(b)(6) Dep. 12:14-13:9).
139. Defendant requires employment histories for both employee-drivers and lease operators. (Ex. 32, C.R. England 30(b)(6) Dep. 13:10-17).
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140. Watson had access to health insurance through Defendant. (Ex. 31, Deposition of Carrie Johansen, hereinafter Johansen Dep., 76:15-18).
141. Defendant agreed to file an IRS Form 1099 for Watson if he received a certain amount of compensation. (Def.’s Ex. B, ICOA ¶ 8(D)).
142. Watson was required to cooperate and assist in the investigation, settlement, or litigation of any accident, claim, or potential claim by or against Defendant. (Def.’s Ex. B, ICOA ¶ 10). Watson was also required to maintain information about Defendant as confidential. (Def.’s Ex. B, ICOA ¶ 20).
143. Watson was required to provide unlimited indemnification to Defendant. (Def.’s Ex. B, ICOA ¶ 12).
144. Defendant stated that it terminated Watson’s ICOA “for poor performance” when he “stayed home for an extended period of time.” (Ex. 33, Deposition of Christie Wakeland, hereinafter Wakeland Dep., 40:13-41:2; Ex. 20, Wakeland Memo, EEOC-CRE-00125).
145. Defendant considered Watson to be in breach of his ICOA when he terminated his vehicle lease with Opportunity Leasing. (Ex. 30, Hayes Dep. 60:18-61:4).
146. The ICOA between Watson and Defendant states that it is terminable by either party “at any time for any reason by giving thirty (30) days’ written notice to that effect to the other party.” (Def’s Ex. B, ICOA ¶ 13).
147. If Opportunity Leasing believed that repairs or maintenance were not being performed in accordance with its wishes, it had the right to have such work done at a shop it selected and to charge Watson for such work. (Def’s Ex. C, VLA, ¶ 2(a)).
Watson Was Also a Job Applicant for the Trainer Position with England 148. Mr. Watson “made application with C.R. England to qualify as a trainer and provide training services.” (Ex. 7, October 15, 2003 Hayes Letter at 2). Training status is different from employment status. (Ex. 33, Wakeland Dep., 42:13-16).
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149. Watson’s status as a trainer was terminated independently of his status as a driver. (Ex. 33, Wakeland Dep. 40:13-41:2, Ex. 20, Wakeland Memo, EEOC-CRE-00125).
Watson Was an Employee of C.R. England as a Trainer 150. When students first start out, the trainer has to be in the jump seat. At some point, the trainer can sleep while the student is driving. (Ex. 27, Deposition of Cynthia Horsley, hereinafter Horsley Dep., 27:5-14). 151. As a trainer, Watson was required by Defendant’s policy to run a minimum number of miles per day. (Ex. 27, Horsley Dep. 22:4-8). 152. Defendant maintains personnel files for trainers in the personnel department. (Ex. 31, Johansen Dep. 78:19-79:7). 153. Defendant gives uniform shirts to trainers regardless of whether they are company drivers or lease operators. (Ex. 31, Johansen Dep. 65:8-25; Ex. 33, Wakeland Dep. 10:19-23). 154. Defendant disqualified Watson from the Trainer position because he refused a load and “deadheaded” home. (Ex. 33, Wakeland Dep. 40:13-41:2; Ex. 20, Wakeland Memo, EEOC-CRE-00125).
Watson Is a Qualified Individual With a Disability See PSOF 1 through 13 and Sealed PSOF 14 through 46 and attached exhibits
submitted in conjunction with Plaintiff’s Motion for Partial Summary Judgment (Docs.65, 66, and 67), incorporated herein by reference. England Was Required to Maintain Watson’s Medical Information Confidentially
155. Johansen knew Watson was HIV-positive because he told her so. (Ex. 31, Johansen Dep. 71:19-24; DSF ¶ 31). Watson notified C.R. England that he was HIV-positive prior to February 2003. (Ex. 25, Defendant’s Response to Plaintiff EEOC’s First Set of Requests for Admission, Request No. 4).
England Required the Disclosure of Watson’s Confidential Medical Information and Interfered with His Right to Confidentiality
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156. Carrie Johansen had been a Human Resources Manager with C.R. England for more than eleven years as of July 2007. (Ex. 31, Johansen Dep. 35:5-9).
157. Mr. Hayes admits that he isn’t sure that Mr. Watson could have continued in C.R. England's training program if he had said he didn't want to disclose his HIV status to trainees. (Ex. 30, Hayes Dep. 84:23-85:1).
158. Defendant admits that it “required a trainee or potential trainee to sign an acknowledgement before working with Walter Watson, stating: ‘Trainee hereby specifically acknowledges that he/she has been fully informed that his/her Trainer suffers from a communicable health condition (HIV). Trainee agrees to fully inform himself/herself on the condition (HIV), including avoidance of communication of the disease. Trainee further agrees to keep confidential any and all information relating to Trainer’s condition, except as required to protect the health and welfare of any person.’ See EEOC-CRE0000012.” (Ex. 25, Defendant’s Response to Plaintiff EEOC’s First Set of Requests for Admission, Request No. 7; Def’s Ex. M, Acknowledgment Form).
159. The Acknowledgment Form did not further define or explain when disclosure of Watson’s condition by a Trainee might be “required to protect the health and welfare of any person.” (Def’s Ex. M, Acknowledgment Form).
160. Defendant intended to show the disclosure form to trainees who were assigned to Watson. (DSF ¶¶ 40-41; Def.’s Ex. M, Acknowledgment Form).
161. Christie Wakeland, the Training Coordinator, also saw the Acknowledgment Form, and after being told that students assigned to Watson’s truck needed to sign the form, she surmised that Watson had HIV based on that information. (Ex. 33, Wakeland Dep. 6:5-17, 15:19-16:5, 18:23-19:15).
162. Once a trainee signed the Acknowledgment Form stating their Trainer had HIV, they would be directed to meet with Watson, and would thereby know that Watson
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had HIV. (Ex. 33, Wakeland Dep. 19:20-20:10; DSF ¶ 41; Def’s Ex. M, Acknowledgment Form). England “Limited, Segregated, or Classified” Watson Because of His Disability 163. Wakeland and Hayes understood a communicable disease to be anything contagious or that could be communicated from one person to another, including hepatitis and herpes. (Ex. 33, Wakeland Dep. 20:14-25; Ex. 30, Hayes Dep. 34:1435:7). 164. Wakeland is not aware of any other instances where a student has been required to sign a form similar to the Acknowledgment Form. (Ex. 33, Wakeland Dep. 20:1113). 165. Wakeland believed that Watson’s students had to sign the Acknowledgment Form because he had a communicable disease. (Ex. 33, Wakeland Dep. 21:22-22:3). 166. Trainees had to agree not just to train with someone with a communicable disease, but specifically with someone with HIV. (Ex. 30, Hayes Dep. 36:17-21; Def’s Ex. M, Acknowledgment Form).
ARGUMENT I. SUMMARY JUDGMENT STANDARD
A motion for summary judgment may be granted only where there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56. Anderson Liberty Lobby, Inc., 477 U. S. 242, 249-250, 106 S.Ct. 2505 (1986); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). “A fact is ‘material’ if, under the governing law, it could have an effect on the outcome of the lawsuit. . . . A dispute over a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving party on the evidence presented.” McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 921, 926 (10th Cir. 2001) (reversing district court’s grant of summary judgment for defendant because there were genuine issues of material fact) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
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In applying the summary judgment standard, the Court must view the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. The nonmovant’s evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Id.; Anderson, 477 U.S. at 255. All doubts should be resolved in favor of the presence of triable fact issues. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985), cert denied, 474 U.S. 823 (1985). At summary judgment, the court’s role “is simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain [plaintiff’s] claim.” Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003).
II. THE ADA PROTECTS WATSON Preliminarily, Defendant inaccurately suggests that the ADA protects only those individuals who are “employees” from discrimination the basis of disability. This is patently incorrect. While some provisions of the ADA prohibit discrimination against employees and job applicants, other provisions contain no such requirement. In this case, three separate provisions of the ADA are at issue: Section 102(d), 42 U.S.C. § 12112(d); Section 102(b)(1), 42 U.S.C. § 12112(b)(1), and Section 503(b), 42 U.S.C. § 12203(b).
Section 102(d), relating to the confidential maintenance of medical information obtained by employers, applies to job applicants and employees. In addition, there is no requirement that the job applicant or employee be a qualified individual with a disability in order to have his or her medical information treated confidentially. Griffin v. Steeltek, Inc., 160 F.3d 591, 594-95 (10th Cir. 1998); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F. 3d 1221, 1229 (10th Cir. 1997); Fredenburg v. Contra Costa County Dep’t of Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999).
Section 102(b)(1) specifically prohibits “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.” 42 U.S.C. § 12112(b)(1) (emphasis added). Under this provision, both job applicants and
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employees who are qualified individuals with a disability are protected from discrimination because of their disability.
The language of Section 503(b) imposes no requirements that an individual be an employee, job applicant, or qualified individual with a disability in order to enjoy its protections. Pursuant to Section 503(b), “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.” 42 U.S.C. § 12203(b) (emphasis added).
Thus, the questions of Watson’s status as an employee and/or as a qualified individual with a disability are not dispositive of the EEOC’s claims. Regardless, Watson was both an employee of England and a job applicant, as well as a qualified individual with a disability. Watson’s status as such, as well as the impact of any such status on the EEOC’s specific claims on his behalf, will be discussed further below.
a. THE HYBRID TEST IS THE APPROPRIATE STANDARD FOR DETERMINING WATSON’S EMPLOYMENT STATUS
Although Defendant correctly identifies the standard to be applied in determining whether Watson was an employee for the purposes of his Section 102(d) and Section 102(b)(1) claims, Defendant does not correctly apply the law to the facts at hand. When applied to the full panoply of relevant facts, the “hybrid test” reveals that Watson was an employee of England, not an independent contractor.
The hybrid test is a combination of the “right to control” and “economic realities” tests. Oestman v. Nat’l Farmers Union Ins. Co., 958 F.2d 303 (10th Cir. 1992). The “right to control” test, which looks to whether the employer had the “right to control the means and manner of the worker’s performance,” has been used extensively in deciding cases pursuant to the National Labor Relations Act (NLRA), see, e.g., Atlantic Interstate Messengers, 274 N.L.R.B. 1144 (1985) (discussing and applying right to control test).
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While the hybrid test also considers other elements derived from the economic realities test2, Defendant concedes that the focus of the inquiry is “the employer’s right to control the means and manner of the worker’s performance,” (Def’s Mot. at 16), or the right to control test. Therefore, cases arising under the NLRA and decided using the “right to control” framework are instructive. See also Brown v. City of Tucson, 336 F.3d 1181, (9th Cir. 2003) (discussing similarities between Section 503(b) of the ADA and the NLRA); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002) (finding that “interpretations of the NLRA can serve as a useful guide to interpreting similar language in the ADA” in reference to Section 503(b) of the ADA).3
When applying these tests, it is important to note that Watson was performing two roles for England; he was both a driver (or Lease Operator), and a Trainer. These two positions are separate; Watson had to apply and go through a “Train-the-Trainer” course to become a Trainer, and his status as a Trainer was terminated independently from his status as a Lease Operator. (PSF 2, SSF 19-21, 45, SF2 77-78). At the time that Defendant initiated its discussions with Watson concerning the required disclosure of his confidential medical information, Watson had not yet completed the Train-the-Trainer course (SSF2 76, 94-96), and therefore was a Lease Operator and a job applicant for the Trainer position. At the time Defendant actually disclosed Watson’s confidential medical information to a Trainee, Eddie Seastrunk, Watson had completed the course and was both a Lease Operator and a Trainer. (SSF2 76). Therefore, whether or not Watson was
2 The economic realities test examines whether a worker, “as a matter of economic fact,” is in business for himself, and is usually applied in cases brought under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Oestman, 958 F.2d at 305. 3 Defendant attempts to rely on several previous administrative decisions that it offers at Def’s Statement of Facts 22-25. These decisions are irrelevant, as they were decided under laws other than the NLRA, ADA, or other federal anti-discrimination laws, and because the discussion of the facts in the decisions is insufficient to determine if the facts were identical to those here. “The determination of whether a party is an employee or an independent contractor is a very fact-specific determination.” Gifford v. Farmers Ins. Exchange, 2005 WL 3555928, No. Civ. 04-77-WYD-PAC (D. Colo. 2005).
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an employee must be considered in light of the changing requirements and policies to which he was subject at different times during his relationship with England.
b. WATSON IS AN EMPLOYEE UNDER THE HYBRID TEST i. Watson, as a Lease Operator, was an employee of England.
In December 2002, Watson completed paperwork to become a Lease Operator for England. (SSF 17-19, SSF2 48, 52-54) This paperwork included the Independent Contractor Operating Agreement (ICOA) (Def’s Ex. B), Attachment 2 to the ICOA (attached hereto as Exhibit 15), the Operating Philosophy (attached hereto as Exhibit 16), Logging Procedures (attached hereto as Exhibit 13), and Logging Off Duty for Meal Stops (attached hereto as Exhibit 14).4 Id. When taken together with deposition testimony in this case, the evidence establishes that Watson was an employee, and creates a genuine issue of material fact concerning Watson’s employment status.
Defendant had the right to control the means and manner of Watson’s performance. Watson signed the ICOA, and was also required to sign Defendant’s Operating Philosophy document. (SSF2 48, 52-54). Under these agreements, Defendant required Watson to keep and maintain systematic records of his Equipment’s repair and maintenance, apply Defendant’s identification to his Equipment, and adhere to limitations on his hours of service, and was not permitted to have any passengers or to operate his own Equipment for another carrier without Defendant’s consent. (PSF2 128). See Atlantic Interstate Messengers, 274 N.L.R.B. at 1148 (exclusive operation); Roadway Package Sys., Inc., 292 N.L.R.B. 376, 377-78 (1989) (exclusive operation); N.L.R.B. v. Deaton, Inc., 502 F.2d 1221, 1226 (5th Cir. 1975) (same). Defendant contends that these elements of control are irrelevant to the employee/independent contractor determination, 4 Defendant also relies on the terms of the Vehicle Lease Agreement (VLA) (Def’s Ex. C) in support of its arguments in favor of independent contractor status. However, England was not a party to the VLA between Opportunity Leasing and Watson. (PSF2 127). Opportunity Leasing is only a sister company to England, (PSF2 126) and the terms of the VLA are irrelevant to determining the relationship between Watson and England.
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as they are elements of control that a carrier is required to retain by laws and regulations. However, “it matters not whether the controls placed on the drivers emanate from [the carrier] independently, or whether these controls are imposed on [the carrier] which, in turn, imposes them on the drivers. Either way, these controls define the carrier’s employment relationship with its drivers.” Atlantic Interstate Messengers, 274 N.L.R.B. at 1148, citing Mitchell Bros. Truck Lines, 249 N.L.R.B. 476, 480-81 (1980). See also Deaton, 502 F.2d at 1226 (“[W]e cannot ignore or discount the items that are requirements imposed by federal regulations. As discussed above, we assess the total controls, including both ICC-mandated controls and additional controls.”); Propane Transport, Inc., 247 N.L.R.B. 966, 968 (1980); George Transfer & Rigging Co., 208 N.L.R.B. 494, 498 (1974). The case relied upon by Defendant to suggest otherwise, Universal Am-Can, Ltd. V. Workers’ Comp. Appeal Bd., 762 A.2d 328 (Pa. 2000), is a state case dealing with employee status under the Pennsylvania Workers’ Compensation Act, and is neither persuasive nor germane in the area of federal anti-discrimination law.
Defendant also imposed extensive additional controls on the means and manner in which Watson performed his duties. Watson was required to adhere not only to the ICOA and the requirements of all outside authorities, but also Defendant’s own operating authorities, safety policies, and company policies. (SSF2 54). These policies dictated his minimum average daily speed and maximum speed and required that he portray himself in a responsible and respectable manner, including the use of “road courtesies.” (SSF2 55, 57-58, 68-69). He was required to meet all customer requirements and standards of performance, including minimum miles per month, minimum on-time delivery percentages, and minimum truck utilization percentages. (SSF2 53). He was subject to a progressive disciplinary policy concerning hours-of-service reporting, and was subject to discipline for speeding, hours violations, and incorrect logging. (SSF2 56-57). Each of these requirements suggests Watson was an employee. Propane Transport, 247 N.L.R.B. at 968 (required adhere to company policy and imposition of discipline for infractions of
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company policy); Atlantic Interstate Messengers, 274 N.L.R.B. at 1148 (disciplinary policy); Time Auto Transportation, Inc. v. N.L.R.B., 377 F.3d 496, 499-500 (6th Cir. 2004) (heightened control over workers makes them employees), citing Aetna Freight Lines, Inc. v. N.L.R.B., 520 F.2d 928, 930 (6th Cir. 1975) (subject to discipline).
In addition to the hours limitations imposed by regulations, Watson’s time was further controlled by Defendant. For example, Watson was only permitted to log “off duty” for set amounts of time while transporting a load. (SSF2 59). Watson was required to coordinate requests and communicate “desires” for home time two weeks in advance. (SSF2 73). It was within Defendant’s discretion whether or not to honor a request for home time or for leave to see a doctor, and in this case, Defendant twice denied requests by Watson for home time. (SSF2 74, 117-118). Ultimately, Defendant terminated Watson’s ICOA “for poor performance” when he “stayed home for an extended period of time.” (PSF2 144). Such controls over Watson’s time off suggest that Watson was an employee, not an independent contractor. Oestman, 958 F.2d at 306 (freedom to take vacation whenever individual deemed appropriate suggested independent contractor status); Norberg v. Tillamook County Creamery Ass’n, 74 F. Supp. 2d 1002, 1006-1007 (D. Or. 1999) (timing of independent contractor’s vacations not controlled by defendant).
Contrary to Defendant’s assertions, Watson was not free to accept or reject loads as he saw fit. Watson was “assigned” loads, was required to cooperate in matching loads and equipment, and Defendant retained the power to force Watson to accept assigned loads based on Defendant’s judgment. (SSF2 63-64). Defendant indicated that it would sever its relationship with drivers who refused loads, and refused to pay drivers for empty or “deadhead” miles to a loading point if the driver had refused the previous load. (SSF2 65-66). Defendant’s exertion of such control over the assignment of loads renders Watson an employee. Propane Transport, 247 N.L.R.B at 968 (disciplinary action for refusal of loads); Deaton, 502 F.2d at 1226 (all dispatching services performed by
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employer); contra Norberg, 74 F. Supp.2d. at 1007 (independent contractor allowed to accept or reject loads).
Watson was also required to submit documentation beyond that required by laws and regulations. (PSF2 130). Defendant had the right to review all of Watson’s documents and records, but Watson had a limited right to view Defendant’s documents and records. (PSF2 129). With respect to the submission of logs, Defendant’s policies went far beyond the requirements of federal regulations. (SSF2 67). For instance, Defendant required that logs be completed only in a particular color ink, not be stapled, and be folded from side-to-side. Id. Watson was required to call his log auditor once a month, could not combine off-duty logs with working logs, and was required to log all fuel stops and arrival times at pickups and deliveries. Id. Such extensive paperwork instructions weigh in favor of employee status. See Pilot Freight, 208 N.L.R.B. at 857 (extensive instructions regarding waybills and when to call the terminal); Propane Transport, 247 N.L.R.B. at 968 (required furnishing of logsheets and other records); Deaton, 502 F.2d at 1226 (log submissions); Roadway Package, 292 N.L.R.B. at 377-78 (record-keeping); see also Gifford, 2005 WL 3555928 at *4 (systems for information and records collection).
Defendant also applied extensive requirements to Watson concerning equipment. Defendant made all arrangements for the leasing of trailers and required Watson to have all trailer maintenance performed at facilities designated or approved by Defendant. (PSF2 131-132). With respect to Watson’s truck, he was required to maintain it in accordance not only with laws and regulations, but also with Defendant’s own policies (PSF2 133), and to make it available for inspection by Defendant “at any time upon reasonable request,” not just on those occasions when inspections were required by federal regulations (PSF2 134). Watson had to remove any paint, decals, or other items that Defendant believed would be “offensive,” and otherwise controlled the appearance of his equipment. (PSF2 135-136). This weighs in favor of construing Watson as an
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employee. Deaton, 502 F. 2d at 1226 (inspection requirement); Propane Transport, 247 N.L.R.B. at 968 (required inspection and repairs).
Defendant determined the amount of payment Watson received. Although Watson was paid by the mile, the mileage calculations were pre-determined by Defendant, and Watson was paid based on this mileage, not actual mileage driven. (SSF2 61). Therefore, although Watson could choose to take a longer route, he was still paid the same. Id. This suggests that Watson was an employee. Propane Transport, 247 N.L.R.B. at 967-68. In addition, Defendant unilaterally set the variable terms of the ICOA, such as the payment per mile. Id. at 968, n.9. (SSF2 60).
Defendant had the right to deduct certain costs directly from Watson’s compensation. (SSF2 71). England deducted the costs owed to Opportunity Leasing directly from Watson’s compensation. Id. In other words, Watson did not have any authority to determine the priority of obligations or the order in which to pay himself versus his lease or other obligations.
Watson performed under his ICOA as an individual, not as a corporation or other business organization, and he did not have any employees. (SSF2 52). He did not work for any other carriers during the time he worked for England. (SSF2 62). The Form 1099 issued to Watson for 2003 was issued to him as an individual. (SSF2 72, PSF2 141). Had Watson hired any drivers to perform his work, those drivers had to meet Defendant’s company qualifications and Defendant could disqualify any driver at its discretion. (PSF2 137). These facts weigh against construing Watson as an independent contractor. Deaton, 502 F.2d at 1226 (employer’s power to disqualify any driver); contra Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986) (independent contractor simultaneously worked for 10 carriers, and defendant paid compensation to company, not individual driver); Norberg, 74 F. Supp. 2d at 1006-1007(independent contractor operated as a corporation, with employees).
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Defendant treats its company drivers and lease operators the same, in that it gives the same road tests to both groups and requires the same employment histories of them. (PSF2 138-139). See Pilot Freight, 208 N.L.R.B. at 858 (relying in part on extensive amount of information required during hiring process to find that driver was employee); Propane Transport, 247 N.L.R.B. at 967 (physical examination and application requirements); Deaton, 502 F.2d at 1226 (employer determined all drivers’ qualifications). Watson’s insurance was set up with Defendant, so he is not aware of what insurance carrier was used, and he had access to health insurance through Defendant. (SSF2 70, PSF2 140) The extent to which company drivers and lease operators are treated in the same way indicates the lease operators are employees. See Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 980 (10th Cir. 2002).
Watson was required to cooperate and assist in the investigation, settlement, or litigation of any claims by or against Defendant, and had to maintain information about Defendant as confidential. (PSF2 142).
Defendant terminated Watson’s lease without thirty days’ notice, although the ICOA provides for thirty days’ notice by either party. (SSF2 75, PSF2 146). Atlantic Interstate Messengers, 274 N.L.R.B. at 1148 (finding that where employer effectively has power to hire and fire drivers at will, whether lease provides for notice period is inconsequential).
In conclusion, it is clear that Defendant exercised near-total control over Watson’s performance of his duties as a lease-operator. To the extent that any factors weigh against finding that Watson was an employee of Defendant, such factors are outweighed by the fact outlined above. Despite England’s usage of the phrase “independent contractor” throughout its documents, the mere use of such a phrase is less significant that the content of the document. Cf. Pilot Freight, 208 N.L.R.B. at 858. This is especially true where Watson is not an attorney, and his assumptions about independent contractor status were based on nothing more than Defendant’s advertisements. (SSF2
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47, 49-51). It is clear that the nature of the relationship between Watson and England was so intertwined as to support ADA coverage. Contra Lambertsen v. Utah Dep’t of Corrections, 922 F. Supp. 533 (D. Utah 1995) (finding that teacher was independent contractor of Department of Corrections where only control exercised was for security purposes when she was within confines of prison).
ii. Watson, as a Trainer and Lease Operator, was an employee of England.
Once Watson became a Trainer for England upon completion of the Train-the Trainer course and upon receipt of a trainee assignment, he was subject to additional controls by Defendant over the means and manner of his performance. Watson was not permitted to select his own trainees or to request a particular trainee (SSF2 79), Defendant controlled the trainee’s rate of pay and deducted it from Watson’s compensation (SSF2 80), Watson did not have the authority to dismiss a trainee from his truck (SSF2 84), and Watson was required to obtain his Training Coordinator’s permission to drop a student off (SSF2 86). Watson still was required to abide by Defendant’s company policies at all times. (SSF2 89). Defendant dictated the point at which trainers were permitted to sleep while the trainee was driving (PSF2 150), imposed a minimum number of miles-per-day to run (PSF2 151), required Watson to watch or attend all safety meetings (SSF2 82), and dictated the method (Qualcomm satellite text device or telephone) Watson was to use when contacting his Training Coordinator (SSF2 85). Gifford, 2005 WL 3555928, at *4 (telephone protocol & training session attendance dictated); Pilot Freight, 208 N.L.R.B. at 857-58 (required meeting attendance and extensive instructions regarding when to call the terminal).
Defendant required Watson to maintain a professional appearance and demeanor. (SSF2 87). Defendant provided uniform shirts to trainers regardless of whether they were lease operators or company drivers (PSF 153), and imposed other specific requirements on Watson concerning his appearance, including: the length and appearance of his hair
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and beard, the size of any earrings, the nature of his hygiene, the use of “non-offensive language and conduct,” and the maintenance of a “positive attitude.” (SSF2 88). The imposition of such requirements clearly establishes that England had the right to control Watson when he was a Trainer. Roadway Package, 292 N.L.R.B. at 377-78 (personal appearance); .Atlantic Interstate Messengers, 274 N.L.R.B. at 1148 (personal grooming and uniforms); Gifford, 2005 WL 3555928 at *4 (personal attire); contra Norberg, 74 F. Supp. 2d at 1008 (dress of independent contractor not controlled).
Defendant maintains personnel files for trainers in the personnel department (PSF2 152), Deaton, 502 F.2d at 1226 (maintenance of personnel files), and gives trainers performance reviews every three months (SSF2 81). As a Trainer, Watson was subject to progressive discipline for any offenses, although some offenses could lead to immediate dismissal as a trainer. (SSF2 83). Wakeland testified that she would remove a trainer for any one of the following reasons: sitting up with a students and burning up hours, refusing a load, and deadheading home. (PSF2 90). In fact, Defendant actually disqualified Watson from the Trainer position because he refused a load when he needed to seek medical treatment and counseling, Propane Transport, 247 N.L.R.B at 968 (disciplinary action for refusal of loads suggests employee status), and “deadheaded” home. (PSF2 154, SSF2 120, 123).
Although the nature of the relationship between Watson and Defendant is clearly an employer-employee relationship based on Watson’s lease-operator position, Watson’s employee status becomes even more apparent when his Trainer position is also considered. To the extent Defendant’s motion for summary judgment is based on the argument that there is no genuine issue of material fact as to whether Watson is an employee, it must be denied.
c. WATSON IS ALSO A JOB APPLICANT As discussed above, the ADA also protects job applicants from discrimination. An individual may be both a current employee and a job applicant for another position
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with the same employer. Cf. Hendricks-Robinson v. Excel Corp, 154 F.3d 685, 691-92 (7th Cir. 1998). Watson, in addition to being an employee both during his tenure as a lease operator and as a Trainer, was a job applicant for the Trainer position until his first Trainee was assigned on February 7, 2003, the last day of his Train-the-Trainer class. (DSF 33, 34). The decision to require Watson to disclose his medical status to Trainees was made prior to the conclusion of that course, while Watson was still a job applicant.
III. THE EEOC HAS ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION AGAINST WATSON
As is detailed below, Plaintiff EEOC has established genuine issues of material fact as to each of its three claims on behalf of Watson, and Defendant therefore is not entitled to summary judgment on any of the EEOC’s claims.
a. Defendant Is Not Entitled to Summary Judgment on EEOC’s Section 102(d) Claim (Disclosure of Medical Information)
In this claim, the EEOC seeks relief for Defendant’s violation of Section 102(d) when it disclosed Watson’s HIV-positive status to trainee Eddie Seastrunk on February 7, 2003. In order to establish a violation of Section 102(d) of the ADA, 42 U.S.C. § 12112(d), the EEOC need only establish that an employer obtained medical information through a pre-employment examination or inquiry, Section 102(d)(2), employment entrance examination, Section 102(d)(3), employee medical inquiry, Section 102(d)(4), or voluntary disclosure, then disclosed that information to someone other than a supervisor or manager, first aid or safety personnel, or government officials investigating ADA compliance. Sections 102(d)(3)(B)(i)-(iii), 102(d)(4)(C); see also 29 C.F.R. §§ 1630.14(b)(1), (c)(1) & (d)(1).
Here, Carrie Johansen (Defendant’s Human Resources Manager), obtained information concerning Watson’s HIV-positive status from him prior to February 2003. (SSF2 91, 93, PSF2 155-156). Once Johansen learned that Watson had applied to become a trainer, Defendant determined that Watson would have to disclose his HIV-
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positive status to any trainees before they got into his truck. (SSF2 94) Defendant then prepared a disclosure form (Def’s Ex.M) which informed the trainee that his or her trainer had HIV and permitted the trainee to further disclose Watson’s medical condition in certain circumstances without fully defining those circumstances, asked trainee Seastrunk to sign the form, and then assigned Seastrunk to Watson. (SSF2 99, PSF2 159, 162, DSF 35-40). Thus, once Seastrunk met Watson, he had knowledge that Watson was the individual with HIV. Id. Seastrunk does not come within any of the categories of people to whom Defendant could have disclosed Watson’s information pursuant to Sections 102(d)(3)(B)(i)-(iii), 102(d)(4)(C); Defendant does not contend that he is a manager, first aid or safety responder, or government official. Therefore, regardless of the Seastrunk’s reaction to that information, Defendant violated Section 102(d) when it informed him of Watson’s HIV-positive status.
Defendant’s primary bases for seeking summary judgment on this claim are that: (1) Watson is not a qualified individual with a disability or an employee; (2) Watson voluntarily disclosed his medical information to Carrie Johansen, and such information is therefore not subject to Section 102(d); (3) Watson agreed to disclose his information to the trainee; and (4) the disclosure did not result in any adverse action. Defendant’s arguments fail on all four bases.
First, as discussed previously, the EEOC is not required to demonstrate that Watson is a qualified individual with a disability in order to establish a claim under Section 102(d). Griffin, 160 F.3d at 594-95; Cheyenne Mountain, 124 F. 3d at 1229; Fredenburg, 172 F.3d at 1182. Other circuits have noted that “protecting only qualified individuals would defeat much of the usefulness of those sections,” Fredenburg, 172 F.3d at 1182, and the Tenth Circuit noted that such a requirement “makes little sense.” Griffin, 160 F.3d at 594. The EEOC has already demonstrated, above, that there is a genuine issue of material fact regarding Watson’s status as an employee or job applicant.
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Second, Defendant also contends that medical information that Defendant obtains through a voluntary disclosure by the individual himself need not be kept confidential. This is inaccurate. As EEOC Guidance makes clear, medical information obtained by an employer via voluntary disclosure is subject to the protections of Section 102(d). EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), 2000 WL 33407181, at * 4 (July 2000) (“The ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination . . . as well as any medical information voluntarily disclosed by an employee, as a confidential medical record.”) (emphasis added); see also Belton-Youmans v. Potter, 2006 WL 91526, *1 (E.E.O.C. Jan 6, 2006) (“medical information . . . voluntarily disclosed by employees, must be treated as confidential and may only be shared in limited circumstances . . . .”). EEOC interpretations are entitled to “great deference.” Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971). It is also consistent with the aims of the ADA, which seeks to eliminate those practices which serve “no legitimate employer purpose, but simply serve[] to stigmatize the person with a disability.” H. Rep. No. 101-485 (II), at 75, reprinted in 1990 U.S.C.C.A.N. 303, 357. For example, to hold otherwise would exclude from confidential treatment the information voluntarily provided by employees in connection with requests for reasonable accommodation. Such a result would only serve to chill early and open employee participation in the interactive process, and require employers to draw information out slowly, pursuant to multiple inquiries so that employee responses would be protected.
Moreover, the disclosure at issue in this case was not entirely voluntary in nature. Defendant concedes, for the purposes of summary judgment, “that during [Watson’s] interview with Johansen, she told him that she had spoken with Franklin, and that Franklin had made “negative comments” about Watson. (DSF 31, n.5). Watson then asked her if their conversation was “confidential.” (DSF 31, SSF2 91) When Johansen
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said “yes,” Watson asked her if Franklin had told her that Watson was HIV positive.” (DSF 31). Under these circumstances, Watson’s decision to inform Johansen of his HIVpositive status was borne not out of some desire to be open about his condition, but out of a desire to avoid any potential disciplinary proceedings as a result of his negative interactions with Franklin. This is similar to the situation in Doe v. U.S. Postal Service, where a postal worker chose to fill out a leave form disclosing his status as HIV-positive when he was informed that he would otherwise face disciplinary proceedings for medically-related absences. 317 F.3d 339, 344 (D.C. Cir. 2003).
Even under Johansen’s differing version of events, Watson’s disclosure cannot be said to be entirely voluntary. Johansen “testified that Watson called her from California after his altercation with Franklin to ask for money and transportation back to Salt Lake City. She testified that during his conversation with her, Watson told her that he was HIV positive. Johansen’s contemporaneous notes are consistent with her testimony. See Watson Dep. at Exhibit 28, attached hereto as Exhibit A.” (DSF 31, n.5) (internal citations omitted). Those contemporaneous notes state “Wanda at nights said don’t remove belongings,” “HIV Positive” “getting sick (cold)”, and “belongings in Alan’s truck & meds.” (Def’s Ex. A & Deposition Ex. 28 attached thereto). In light of those notes, Watson’s disclosure of his HIV-positive status could be construed as part of a request for reasonable accommodation in the form of temporary funds to cover items left in Franklin’s truck at Defendant’s suggestion, including medications. Again, to exclude such a disclosure, made only after Watson asked if their conversation was “confidential,” as outside of the confidentiality protections of Section 102(d), will serve only to discourage employee cooperation in the interactive process associated with reasonable accommodations. Watson would never have disclosed his HIV-positive status to Johansen had she not responded in the affirmative to his question about their conversation’s confidentiality. (SSF2 91).
24

Case 2:06-cv-00811-BSJ Document 78 Filed 05/19/08 Page 25 of 31
Third, the EEOC vehemently disputes that Watson consented to the disclosure in question. Watson suggested a general advisory be given to all trainees, in conjunction with the rest of their trainee paperwork, that their trainer might have a communicable disease such as HIV. (SSF2 95). Watson suggested such a form as an attempt to appease Defendant without anyone knowing that he had HIV. (SSF2 96). He never consented or agreed that Defendant could inform any trainees that he was HIV-positive (SSF2 92), never consented or agreed to any specific disclosure form (SSF2 97), and did not even see the Acknowledgment Form attached to Defendant’s Motion as Exhibit M until Seastrunk had already signed the form. (SSF2 96).
The EEOC also need not prove that the disclosure resulted in some adverse action, and Defendant’s citation of Couture v. Belle Bonfils Memorial Blood Center, 151 Fed. App’x 685, 690 (11th Cir. 2005), which discusses what constitutes an adverse action, is misplaced. The disclosure itself is an adverse action where a disability is revealed.5 Congress specifically noted that an “individual with cancer may object merely to being identified, independent of the consequences.” H. Rep. No. 101-485 (II), at 75, reprinted in 1990 U.S.C.C.A.N. at 358, cited by Griffin, 160 F.3d at 594. Watson is very circumspect about his status as HIV-positive. He does not want to wear a medical bracelet identifying him as HIV-positive and did not tell the doctor performing his Department of Transportation medical clearance that he is HIV-positive. (SSF2 101-102). He has only informed one of his subsequent of employers of his HIV-positive status, and then because of the need for accommodations, and did not disclose to any of his trainees at other employer Werner Enterprises that he was HIV-positive. (SSF2 103, 105). Regardless, whether or not Watson informed other individuals of his medical condition is irrelevant to establishing a violation of Section 102(d); it is for Watson, not Defendant, to
5 It is not necessary to determine whether a disclosure of medical information of a nondisabled individual constitutes an adverse action, as Plaintiff has demonstrated that Watson is a qualified individual with a disabilility. See Plaintiff’s Motion for Partial Summary Judgment at 6-13, incorporated herein by reference.
25

Case 2:06-cv-00811-BSJ Document 78 Filed 05/19/08 Page 26 of 31
decide with whom he wishes to share that information. It is undisputed that Watson did not wish to share that information with Seastrunk, but was required to do so. (SSF2 92, 96, 108, PSF2 157, 158, 160-162)
As a result of Defendant’s failure to keep that information confidential, Watson suffered more than “mere dissatisfaction,” inconvenience, or unhappiness. Contra Couture,151 Fed. Appx. At 690. He expressed to Johansen that he was upset and disappointed by her concerns about him being a Trainer, and expressed to both Johansen and Ralph Vernon, the Train-the-Trainer course instructor, that he objected to and was uncomfortable with the disclosure of his HIV-positive status. (SSF2 104, 106-107). Watson was upset about the disclosure and the manner in which it was handled. (SSF2 108, 109). England made Watson feel as though he was putting everybody at risk and that he needed to live in a bubble. (SSF2 110). His experience at England was overwhelming, humiliating, shameful, embarrassing, sad, aggravating, and induced feelings of worthlessness. (SSF2 111). The ordeal consumed everything, and he couldn’t focus. Id. After separating from England, he was afraid of re-living his experience and of being labeled a threat or “damaged goods.” (SSF2 112-113). The stress of the events at England continues and will not go away. (SSF2 113-116). It affects him day-to-day and stays in his mind. Id. He thinks of it when he is awake and dreams of it when he is asleep. Id. He has periods of anxiety and sleeplessness, followed by periods of depression, crying, and sadness, when all he wants to do is sleep. Id.
b. Defendant Is Not Entitled to Summary Judgment on EEOC’s Section 102(b)(1) Claim (Limiting, Segregating, or Classifying)
Plaintiff EEOC’s second claim on behalf of Watson alleges that C.R. England classified, limited, and segregated Watson with adverse effects when it required him to disclose his HIV-positive status in order to become and remain a trainer. Plaintiff EEOC has discussed the evidence and law entitling it to summary judgment in its own favor at pages 6-13 (element of status as a qualified individual with a disability) and at pages 13-
26

Case 2:06-cv-00811-BSJ Document 78 Filed 05/19/08 Page 27 of 31
17 (remaining elements of prima facie case under Section 102(b)(1)) of its Motion for Partial Summary Judgment (Doc. 65), incorporated herein by reference. The same evidence and arguments establish, at a minimum, sufficient facts to establish a genuine issue of material fact precluding Defendant from obtaining summary judgment on this claim. In the interest of efficiency, Plaintiff EEOC will not repeat those arguments in their entirety here, but will note the additional relevant facts that: Defendant’s Training Coordinator, Christie Wakeland, is not aware of any other instances where a student has been required to sign a form similar to the Acknowledgment Form; Wakeland believed that Watson’s students had to sign the Acknowledgment Form because he had a communicable disease; and Trainees had to agree not just to train with someone with a communicable disease, but specifically with someone with HIV. (PSF2 163-166) Each of these facts further supports the EEOC’s claim that Defendant limited and/or segregated Watson because of his disability, HIV.
c. Defendant Is Not Entitled to Summary Judgment on EEOC’s Section 503(b) Claim (Interference, Threats & Coercion)
Plaintiff EEOC’s third claim on behalf of Watson arises under Section 503(b) of the ADA, which makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed . . . any right granted or protected by this chapter.” 42 U.S.C. § 12203(b). Although Defendant has not specifically identified this claim as one on which it seeks summary judgment, because Defendant has not styled its motion as seeking partial summary judgment, but summary judgment on the EEOC’s claims in their entirety, the EEOC will address the genuine issues of material fact that prevent summary judgment as to this claim.
To establish a prima facie case of discrimination under Section 503(b), the EEOC must demonstrate that Watson: (1) engaged in a protected activity; (2) suffered an adverse action in the form of coercion, intimidation, threats, or interference; and (3) there
27

Case 2:06-cv-00811-BSJ Document 78 Filed 05/19/08 Page 28 of 31
was a causal link between the protected activity and adverse action.6 Brown, 336 F.3d at 1192. It is important to note that this showing differs from the showing required under the ADA’s retaliation provision, Section 503(a). Id. at 1991; Fogleman, 283 F.3d at 570 (noting that “the scope of this second anti-retaliation provision of the ADA ‘arguably sweeps more broadly’ than the first”). While courts apply a burden-shifting analysis that appears similar to the analysis used in Title VII cases, the “construction and application of § 503(b) ought to be guided by our treatment of the FHA’s [Fair Housing Act] interference provision, 42 U.S.C. § 3617, as well as similar provisions in the FMLA [Family Medical Leave Act] and NLRA [National Labor Relations Act].” Brown, 336 F.3d at 1991; see also Fogleman, 283 F.3d at 567, 570. In determining what constitutes an adverse action, this Court should be “guided by the plain language of the statute, the Supreme Court’s instruction that we treat ‘the language of the [FHA as] broad and inclusive’, as well as our own recognition in Hayward of the broad scope of the term ‘interference.’” Brown, 336 F.3d at 1192, citing Trafficante v. Metro Life Ins. Co., 409 U.S. 205, 209 (1972) and United States v. Hayward, 36 F.3d 832 (9th Cir. 1994) (internal citations omitted).
Here, Watson engaged in protected activity when he attempted to exercise and enjoy his right to the confidentiality of his medical information under the ADA. “Pursuing one’s rights under the ADA constitutes protected activity.” Tater-Alexander v. Amerjan, 2008 WL 961233, No. 08-cv-00372-OWW-SMS, (E.D.Cal. April 8, 2008). Watson never consented to Defendant’s disclosure of his own status as HIV-positive to any trainee, (SSF2 92), never consented or agreed to any specific disclosure form, and never even saw the disclosure form used by Defendant until a trainee had already signed the form (SSF2 97). To the contrary, he instead suggested giving everyone in the school a general form warning them that their trainer might have HIV. (SSF2 96). Johansen
6 As previously discussed, Section 503(b) imposes no requirements that an individual be an employee, job applicant, or qualified individual with a disability in order to enjoy its protections. 42 U.S.C. § 12203(b) (referring to “any individual”).
28

Case 2:06-cv-00811-BSJ Document 78 Filed 05/19/08 Page 29 of 31
knew that Watson was saddened in response to her concern about him being a trainer (SSF2 104), and Watson expressed to Johansen and his trainer, Ralph Vernon, his objections to and discomfort with the disclosure of his HIV status (SSF2 106). Thus, he attempted to exercise his right to have his medical information maintained in a confidential manner.
Defendant responded to this protected activity by requiring Watson to disclose his information. Johansen and Nelson Hayes, Defendant’s in-house counsel, made a decision that Watson’s HIV status needed to be disclosed to his trainees. (SSF 38-39, SSF2 94). Students would not be permitted to get on his truck unless they first signed a form notifying them that Watson has HIV. (PSF 9, SSF 41). Watson could not have continued as a Trainer if he had said he didn’t want to disclose his HIV status to trainees (PSF 12, PSF2 157-158), and Hayes told Watson that England did not have to allow Watson to become a trainer (SSF 45, PSF2 147). Thus, it was clear that England threatened to bar Watson from the Trainer position in the absence of disclosure to trainees of his HIV status and interfered with his right to keep that status confidential. “In the context of employment cases, an adverse action is any action reasonably likely to deter employees from engaging in protected activity,” Tater-Alexander, 2008 WL 961233 at * 8, and “[t]he plain language of § 503(b) clearly prohibits a supervisor from threatening an individual with a transfer, demotion, or forced retirement unless the individual forgoes a statutorily protected accommodation.” Brown, 336 F.3d at 1193; see also Baugher v. City of Ellensburg, 2007 WL 858627, *3, No. cv-06-3026-RHW, (E.D. Wash. Mar. 19, 2007) (providing additional examples of coercion, intimidation, threats, and interference). EEOC Enforcement Guidance specifically notes that “an individual [may] voluntarily disclose his/her own medical information to persons beyond those to whom an employer can disclose such information . . . as long as it’s really voluntary. The employer cannot request, persuade, coerce, or otherwise pressure the individual to get him/her to disclose medical information.” EEOC Enforcement Guidance: Preemployment Disability-Related
29

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Questions and Medical Examinations, 1995 WL 1789070, *13 (October 1995); see also Griggs, 401 U.S. at 434 (EEOC interpretations entitled to “great deference”). Even by asking Watson to disclose his medical information under Defendant’s version of the facts (DSF 37-41), Defendant violated Section 503(b).
It is also clear that the disclosure of Watson’s status as HIV-positive was because of his disability, HIV. Only students placed on Watson’s truck were required to complete the disclosure form (PSF 10, PSF2 160) and they had to sign the form because Watson had a communicable disease (PSF2 163-165). Moreover, there is no doubt that Watson was injured as a result of the disclosure (see the discussion of Watson’s injuries, supra at 26; SSF2 104-116). Therefore, at a minimum there are genuine issues of material fact preventing summary judgment on Plaintiff EEOC’s Section 503(b) claim.
CONCLUSION For the foregoing reasons, Plaintiff EEOC respectfully requests the Defendant’s Motion for Summary Judgment Against EEOC be denied in its entirety. RESPECTFULLY SUBMITTED, this 19th day of May, 2008
MARY JO O’NEILL Regional Attorney SALLY C. SHANLEY Supervisory Trial Attorney
/s/ Valerie L. Meyer VALERIE L. MEYER Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix District Office 3300 N. Central Ave., Suite 690 Phoenix, Arizona 85012 Attorneys for Plaintiff
30

Case 2:06-cv-00811-BSJ Document 78 Filed 05/19/08 Page 31 of 31
CERTIFICATE OF SERVICE I certify that on this 19th day of May, 2008, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
Scott A. Hagen Michael E. Blue Ray Quinney & Nebeker, P.C. 36 South State Street, Suite 1400 P.O. Box 46385 Salt Lake City, UT 84145-0385 Attorneys for Defendant Russell T. Monahan, Esq. Daniel W. Morse, Esq. Cook & Associates, P.C. 230 South 500 East, Suite 465 Salt Lake City, UT 84102 Attorneys for Intervenor _s/ Valerie L. Meyer _
31

 
 Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 1 of 12
Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:06−cv−00811−BSJ

CLOSED

Equal Employment Opportunity Commission v. C.R. England Assigned to: Judge Bruce S. Jenkins Case in other court: Tenth, 09−04207
Tenth, 09−04217 Cause: 42:12101 Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 09/25/2006 Date Terminated: 09/17/2009 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Mary Jo O'Neill EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012−1848 (602)640−5000 Email: mary.oneill@eeoc.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michelle G. Marshall EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012−1848 (602)640−5000 TERMINATED: 03/18/2008 LEAD ATTORNEY

Sally C. Shanley EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012−1848 (602)640−5032 Email: sally.shanley@eeoc.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Sorenson US ATTORNEY'S OFFICE (UT) SALT LAKE CITY, UT 00000 (801)325−3218 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Valerie L. Meyer EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012−1848 (602)640−5000 PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 2 of 12

V. Intervenor Plaintiff Walter Watson
V. Defendant C.R. England

V. Intervenor Defendant C.R. England

Date Filed

# Docket Text

represented by Daniel W. Morse COOK &MONAHAN 230 S 500 E STE 465 SALT LAKE CITY, UT 84102 (801)595−8600 Email: dan@cooklawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell T. Monahan COOK &MONAHAN 230 S 500 E STE 465 SALT LAKE CITY, UT 84102 (801)595−8600 Email: russ@cooklawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael E. Blue RAY QUINNEY &NEBEKER (SLC) 36 S STATE ST STE 1400 PO BOX 45385 SALT LAKE CITY, UT 84145−0385 (801)532−1500 Email: mblue@rqn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Hagen RAY QUINNEY &NEBEKER (SLC) 36 S STATE ST STE 1400 PO BOX 45385 SALT LAKE CITY, UT 84145−0385 (801)532−1500 Email: shagen@rqn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael E. Blue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Hagen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 3 of 12

09/25/2006 09/27/2006 09/27/2006 09/27/2006 09/27/2006 09/29/2006
09/29/2006
09/29/2006
12/26/2006 01/02/2007 01/02/2007 01/08/2007

1 Case has been opened and assigned to Judge Bruce S. Jenkins. Plaintiff Equal Employment Opportunity Commission is directed to E−File the Complaint(found under Complaints and Other Initiating Documents) by the end of the business day. Filing Fee waived (USA) (rlr, ) (Entered: 09/25/2006)
2 COMPLAINT against C.R. England No Filing Fee, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet) Assigned to Judge Bruce S. Jenkins (Sorenson, Stephen) (Entered: 09/27/2006)
3 MOTION for Admission Pro Hac Vice of Sally C. Shanley (no registration fee required) filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Sorenson, Stephen) (Entered: 09/27/2006)
4 MOTION for Admission Pro Hac Vice of Michelle G. Marshall (no registration fee required) filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Sorenson, Stephen) (Entered: 09/27/2006)
5 MOTION for Admission Pro Hac Vice of Mary Jo O'Neill (no registration fee required) filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Sorenson, Stephen) (Entered: 09/27/2006)
6 ORDER granting 3 Motion for Admission Pro Hac Vice of Sally C. Shanley for Equal Employment Opportunity Commission. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Bruce S. Jenkins on 9/28/06.(jwt, ) Modified on 9/29/2006 (jwt, ). (Entered: 09/29/2006)
7 ORDER granting 4 Motion for Admission Pro Hac Vice of Michelle G. Marshall for Equal Employment Opportunity Commission. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Bruce S. Jenkins on 9/28/06.(jwt, ) (Entered: 09/29/2006)
8 ORDER granting 5 Motion for Admission Pro Hac Vice of Mary Jo O'Neill for Equal Employment Opportunity Commission. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Bruce S. Jenkins on 9/28/06.(jwt, ) (Entered: 09/29/2006)
9 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Equal Employment Opportunity Commission as to C.R. England served on 12/13/2006, answer due 1/2/2007. (Marshall, Michelle) (Entered: 12/26/2006)
10 NOTICE of Appearance by Scott A. Hagen on behalf of C.R. England (Hagen, Scott) (Entered: 01/02/2007)
11 ANSWER to Complaint filed by C.R. England.(Hagen, Scott) (Entered: 01/02/2007)
12 NOTICE OF HEARING:Initial Status and Scheduling Conference set for 2/20/2007 01:10 PM in Room 420 before Judge Bruce S. Jenkins, 350 South Main Street, Salt Lake City, Utah. The court advises counsel and parties appearing pro se that not less than fourteen (14) days prior to the initial conference they should meet with each other and prepare a proposed plan of discovery and case preparation pursuant to Rule 26(f)(1), (2), (3), and (4) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 16(b) &DUCivR 16−1(a)(1). A written report outlining the proposed plan, as agreed, shall be filed with the court no later than ten (10) days prior to the above−scheduled hearing date. Counsel (and parties appearing pro se) should also gather and examine existing documents relevant to the case which are in the possession and control of parties or their counsel and either produce them at their initial Rule 26(f) planning meeting or, as part of the proposed discovery plan, agree as to a specific date upon which such documents shall be produced. See Fed. R. Civ. P. 26(a).(kms) (Entered: 01/08/2007)

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 4 of 12

01/10/2007 02/05/2007 02/20/2007
02/20/2007
02/21/2007 02/21/2007 02/21/2007 02/26/2007 03/06/2007
03/07/2007 03/12/2007 03/15/2007 03/16/2007 03/22/2007 03/26/2007 07/31/2007 08/07/2007 08/07/2007

13 NOTICE OF ADR, e−mailed or mailed to Plaintiff Equal Employment Opportunity Commission, Defendant C.R. England. (jwt) (Entered: 01/10/2007)
14 REPORT OF ATTORNEY PLANNING MEETING. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 02/05/2007)
22 Minute Entry for proceedings held before Judge Bruce S. Jenkins : Initial Status Report &Scheduling Conference held on 2/20/2007. Attorney for Plaintiff: Michelle G. Marshall (via Phone), Sally C. Shanley (via Phone), Attorney for Defendant Scott A. Hagen. Court Reporter: Dawn Brunner−Hahn.(Time Start: 1:11 PM, Time End: 1:16 PM, Room 420.) (mrw) (Entered: 03/14/2007)
24 Modification of Docket: Error: nonapproved ME. Correction: approved ME. re 22 Initial Status Report &Scheduling Conference,. Discussion heard. Crt schedules:− All discovery (fact &expert) cutoff 7/30/2007.− Post−discovery motion(s) filed nlt 8/31/2007.− Final pretrial conference11/16/2007, at 1:30 PM.− Stip proposed final pretrial order due to chambers11/14/2007.Ms. Marshall to prepare &submit scheduling order within 7 days. (mrw) (Entered: 03/16/2007)
15 MOTION to Intervene filed by Movant/Plaintiff in Intervention Walter Watson.. (ce) (Entered: 02/22/2007)
16 MEMORANDUM in Support re 15 MOTION to Intervene filed by Movant/Plaintiff in Intervention Walter Watson. (ce) (Entered: 02/22/2007)
17 Remark − PROPOSED Complaint in Intervention submitted by Walter Watson, proposed plaintiff in intervention. (ce) (Entered: 02/22/2007)
18 NOTICE OF HEARING ON MOTION re: 15 MOTION to Intervene : Motion Hearing set for 3/21/2007 01:30 PM in Room 420 before Judge Bruce S. Jenkins. (kms) (Entered: 02/26/2007)
19 SCHEDULING ORDER:Amended Pleadings due: plaintiff by 3/30/07, defendant by 4/27/2007. Joinder of Parties due: plaintiff by 3/30/07, defendant by 4/27/2007. Fact and Expert Discovery due by 7/30/2007. Dispositive and potentially dispositive motions due by 8/31/2007. Final Pretrial Conference set for 11/16/2007 01:30 PM in Room 420 before Judge Bruce S. Jenkins. Proposed Pretrial Order due by 11/14/2007. Signed by Judge Bruce S. Jenkins on 3/06/07. (jwt) (Entered: 03/06/2007)
20 Stipulated MOTION for Protective Order filed by Plaintiff Equal Employment Opportunity Commission, Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 03/07/2007)
21 ORDER granting 20 Motion for Protective Order. Signed by Judge Bruce S. Jenkins on 3/12/07. (jwt) (Entered: 03/12/2007)
23 STIPULATION re 15 MOTION to Intervene by Walter Watson. (Monahan, Russell) (Entered: 03/15/2007)
25 ORDER granting 15 Motion to Intervene. Signed by Judge Bruce S. Jenkins on 3/16/07. (jwt) (Entered: 03/16/2007)
26 Intervenor COMPLAINT against C.R. England, filed by Walter Watson.(rlr) (Entered: 03/22/2007)
27 ANSWER to Intervenor Complaint filed by C.R. England.(Hagen, Scott) (Entered: 03/26/2007)
28 Joint MOTION for Extension of Time Scheduling Dates filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Hagen, Scott) (Entered: 07/31/2007)
29 ORDER granting 28 Motion for Extension of Time. Signed by Judge Bruce S. Jenkins on 8/07/07. (jwt) (Entered: 08/07/2007)
30 Set/Reset Scheduling Order Deadlines: Fact and Expert Discovery due by 10/30/2007. Dispositive Motions due by 11/30/2007. Final Pretrial Conference set for 2/22/2008 09:30 AM in Room 420 before Judge Bruce S. Jenkins. Proposed Pretrial Order due by 2/14/2008. (jwt) (Entered: 08/07/2007)

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 5 of 12

09/28/2007 09/28/2007 10/01/2007 10/09/2007 10/12/2007 10/12/2007 10/23/2007 10/23/2007 10/25/2007 10/25/2007 10/30/2007 11/01/2007 11/01/2007
11/14/2007 12/06/2007

31 MOTION Leave to Finish Plaintiff's Deposition filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) (Entered: 09/28/2007)
32 MEMORANDUM in Support re 31 MOTION Leave to Finish Plaintiff's Deposition filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Exhibit A)(Hagen, Scott) (Entered: 09/28/2007)
33 NOTICE OF HEARING ON MOTION re: 31 MOTION Leave to Finish Plaintiff's Deposition : Motion Hearing set for 11/1/2007 01:20 PM in Room 420 before Judge Bruce S. Jenkins. (kms) (Entered: 10/01/2007)
34 Plaintiff's MOTION for Extension of Time to Complete Discovery filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Walter Watson. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 10/09/2007)
35 Plaintiff's MEMORANDUM in Opposition re 31 MOTION Leave to Finish Plaintiff's Deposition filed by Intervenor Plaintiff Walter Watson. (Monahan, Russell) (Entered: 10/12/2007)
36 RESPONSE to Motion re 31 MOTION Leave to Finish Plaintiff's Deposition filed by Plaintiff Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 10/12/2007)
37 NOTICE OF HEARING ON MOTION re: 34 Plaintiff's MOTION for Extension of Time to Complete Discovery : Motion Hearing set for 11/1/2007 01:20 PM in Room 420 before Judge Bruce S. Jenkins. (kms) (Entered: 10/23/2007)
38 REPLY to Response to Motion re 31 MOTION Leave to Finish Plaintiff's Deposition filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) (Entered: 10/23/2007)
39 Joint MOTION to Seal Plaintiff's Deposition filed by Intervenor Plaintiff Walter Watson. (Attachments: # 1 Text of Proposed Order Order to Seal Deposition of Plaintiff)(Monahan, Russell) (Entered: 10/25/2007)
40 RESPONSE to Motion re 34 Plaintiff's MOTION for Extension of Time to Complete Discovery filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) (Entered: 10/25/2007)
41 ORDER granting 39 Motion to Seal Deposition. Signed by Judge Bruce S. Jenkins on 10/30/07. (blk) (Entered: 10/31/2007)
42 **SEALED DOCUMENT** Exhibit re 38 Reply Memorandum/Reply to Response to Motion filed by Defendant C.R. England. (blk) Modified on 11/1/2007 − document oversized and not attached (blk). (Entered: 11/01/2007)
43 Minute Entryfor proceedings held before Judge Bruce S. Jenkins: Motion Hearing held on 11/1/2007 re 34 Plaintiff's MOTION for Extension of Time to Complete Discovery filed by Walter Watson, Equal Employment Opportunity Commission. After discussion the Court GRANTS the motion for extension of time to complete discovery. The out of pocket expense will be paid by the plaintiff. The Court sets the following dates: All discovery (expert) cutoff November 15, 2007. Post−discovery motions filed no later than February 15, 2008. Final pretrial conference set April 4, 2008 at 9:30 a.m. Stipulated proposed final pre trial order to chambers on April 10, 2008 by noon. Attorney for Plaintiff: Michelle G. Marshall, via phone, Attorney for Defendant Russell T. Monahan; Scott A. Hagen. Court Reporter: Ashley Davis.(Time Start: 1:20, Time End: 1:40, Room 420.) (kpf) (Entered: 11/14/2007)
44 ORDER granting 31 Motion to Finish Plaintiff's Deposition; granting 34 Motion for Extension of Time to Complete Discovery. Signed by Judge Bruce S. Jenkins on 11/14/07. (blk) (Entered: 11/14/2007)
45 CERTIFICATE OF SERVICE regarding discovery (blk) Modified on 12/6/2007 document was filed by Plaintiff Intervenor Walter Watson (blk). (Entered: 12/06/2007)

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 6 of 12

12/10/2007 12/12/2007 01/31/2008 02/04/2008 02/07/2008 02/07/2008 02/29/2008
03/04/2008
03/18/2008 03/25/2008 03/26/2008 03/27/2008
03/28/2008 03/31/2008 03/31/2008 03/31/2008

46 CERTIFICATE OF SERVICE by Walter Watson, Intervenor Plaintiff re: Rule 26(e) Supplementation of Disclosures and Responses Upon Scott Hagen. (ce) (Entered: 12/11/2007)
47 **RESTRICTED DOCUMENT** RETURN OF SERVICE Executed for Subpoena served on Cynthia Horsley on 12/04/2007, filed by Intervenor Plaintiff Walter Watson. (Monahan, Russell) (Entered: 12/12/2007)
48 CERTIFICATE OF SERVICE by Walter Watson Rule 26(e) Supplementation (Monahan, Russell) (Entered: 01/31/2008)
49 MOTION for Extension of Time Dispositive Motion and Pretrial Deadlines filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Shanley, Sally) (Entered: 02/04/2008)
50 ORDER granting 49 Motion for Extension of Time re: Dispositive Motions and Pretrial Deadlines. Signed by Judge Bruce S. Jenkins on 2/6/08. (blk) (Entered: 02/07/2008)
51 Set/Reset Hearings: Pretrial Conference set for 6/12/2008 01:30 PM in Room 420 before Judge Bruce S. Jenkins. Motions due by 3/26/2008. Stipulated Pretrial Order due by 6/10/2008. (blk) (Entered: 02/07/2008)
52 Plaintiff's MOTION for Admission Pro Hac Vice of Valerie L. Meyer (no registration fee required) filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Application for Admission Pro Hac Vice, # 2 Text of Proposed Order for Pro Hac Vice Admission)(Sorenson, Stephen) (Entered: 02/29/2008)
53 ORDER granting 52 Motion for Admission Pro Hac Vice of Valerie L. Meyer for Equal Employment Opportunity Commission. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Bruce S. Jenkins on 3/3/08. (blk) (Entered: 03/04/2008)
54 NOTICE of Substitution of Counsel by Equal Employment Opportunity Commission (Meyer, Valerie) (Entered: 03/18/2008)
55 Joint MOTION for Extension of Time Dispositive Motion Deadline filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Hagen, Scott) (Entered: 03/25/2008)
56 ORDER granting 55 Motion for Extension of Time for filing dispositive motions. Deadline for filing dispositive motions is now 3/31/08. Signed by Judge Bruce S. Jenkins on 3/26/08. (blk) (Entered: 03/26/2008)
57 Defendant's MOTION for Leave to File Overlength Memorandum in Support of Motion for Summary Judgment against Plaintiff−Intervenor Walter Watson filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Hagen, Scott) (Entered: 03/27/2008)
58 ORDER granting 57 Motion for Leave to File. Signed by Judge Bruce S. Jenkins on 3/28/08. (blk) (Entered: 03/28/2008)
59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) (Entered: 03/31/2008)
61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) (Entered: 03/31/2008)
63 **SEALED** Supplemental MEMORANDUM in Support re 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) Modified on 4/2/2008 by sealing this document per direction of chambers (ce). (Entered: 03/31/2008)

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 7 of 12

03/31/2008
03/31/2008 03/31/2008 03/31/2008 04/01/2008
04/01/2008 04/02/2008

64 **SEALED**Supplemental MEMORANDUM in Support re 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) Modified on 4/2/2008 by sealing this document per chambers direction (ce). (Entered: 03/31/2008)
65 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Meyer, Valerie) (Entered: 03/31/2008)
66 Plaintiff's MEMORANDUM in Support re 65 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit (Not Sealed))(Meyer, Valerie) (Entered: 03/31/2008)
67 NOTICE OF FILING of Documents Under Seal re 65 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Meyer, Valerie) (Entered: 03/31/2008)
68 **SEALED DOCUMENT** Statement of Undisputed Facts re 65 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit − List of Exhibits, # 2 Exhibit 2 − Deposition of Walter Watson, # 3 Exhibit 5 − Deposition of Walter Watson, # 4 Exhibit 11 − Declaration of Walter Watson)(blk) (Entered: 04/01/2008)
69 **SEALED DOCUMENT** Supplemental Memorandum in Support re 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson filed by Defendant C.R. England. (blk) (Entered: 04/01/2008)
70 DOCKET TEXT ORDER − the following documents were originally filed UNSEALED on 3/31/08. They have now been sealed per direction of chambers.

63 **SEALED**Supplemental Memorandum in Support of Motion re 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson filed by Defendant/Intervenor Defendant C.R. England.

04/03/2008 04/07/2008 05/02/2008 05/05/2008

64 SEALED**Supplemental MEMORANDUM in Support re 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Defendant/Intervenor Defendant C.R. England. Signed by Judge Bruce S. Jenkins on 4/2/08. NOTE: There is no document/image attached to this entry.(ce) (Entered: 04/02/2008)
71 Stipulated MOTION to Seal re 62 Memorandum in Support of Motion,, 60 Memorandum in Support of Motion,, filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Hagen, Scott) (Entered: 04/03/2008)
72 ORDER granting 71 Motion to Seal Defendant CR England's Memo in Support of Motion for Summary Judgment against Plaintiff EEOC, document 62 including all related exhibits; and Defendant CR England's Memo in Support of Motion for Summary Judgment against Plaintiff−Intervenor Walter Watson, document 60 including all related exhibits. Signed by Judge Bruce S. Jenkins on 4/7/08. (ce) (Entered: 04/07/2008)
73 Stipulated MOTION for Extension of Time to File Response/Reply as to 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson, 65 MOTION for Partial Summary Judgment, 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Walter Watson, Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Meyer, Valerie) (Entered: 05/02/2008)
74 ORDER granting 73 Motion for Extension of Time to File Response/Reply re 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission, 65 MOTION for Partial Summary Judgment, 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson. Replies due by 5/19/2008. Signed by Judge Bruce S. Jenkins on 5/2/08. (blk) (Entered: 05/05/2008)

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 8 of 12

05/14/2008
05/14/2008 05/19/2008 05/19/2008 05/19/2008 05/19/2008
05/19/2008
05/19/2008 05/19/2008 05/20/2008 06/02/2008 06/05/2008

75 ORDER − Vacating the Final Pretrial Conference set for 6/12/08 and setting hearing as to 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission, 65 MOTION for Partial Summary Judgment, 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson. Summary Judgment Motions Hearing set for 6/24/2008 09:30 AM in Room 420 before Judge Bruce S. Jenkins. Signed by Judge Bruce S. Jenkins on 5/13/08. (blk) (Entered: 05/14/2008)
Deadlines/Hearings terminated − Final Pretrial Conference set for 6/12/08 is VACATED. (blk) (Entered: 05/14/2008)
76 NOTICE OF CONVENTIONAL FILING of Defendant's Memorandum in Opposition to Plaintiff EEOC's Motion for Partial Summary Judgment filed by Defendant C.R. England, Intervenor Defendant C.R. England (Hagen, Scott) (Entered: 05/19/2008)
77 NOTICE OF CONVENTIONAL FILING of Plaintiff in Intervention's Memorandum in Opposition to Defendant England's Motion for Summary Judgment filed by Intervenor Plaintiff Walter Watson re 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson (Monahan, Russell) (Entered: 05/19/2008)
78 Plaintiff's MEMORANDUM in Opposition re 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 20, 25, 27, 30−33)(Meyer, Valerie) (Entered: 05/19/2008)
79 NOTICE OF CONVENTIONAL FILING of Plaintiff EEOC's Supplemental Memoranda: Sealed Statement of Facts in Opposition to Defendant's Motion for Summary Judgment and Sealed Disputation of Defendant's Facts in Support of Its Motion for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission re 78 Memorandum in Opposition to Motion, (Meyer, Valerie) (Entered: 05/19/2008)
80 **SEALED DOCUMENT** Supplemental Memorandum/Disputation and Statement of Facts in Opposition re 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Plaintiff Equal Employment Opportunity Commission. (blk) Modified on 5/20/2008 − Oversized document not attached as an image − retained in sealed room (blk). (Entered: 05/20/2008)
81 **SEALED DOCUMENT** Memorandum in Opposition re 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson filed by Intervenor Plaintiff Walter Watson. (blk) Modified on 5/20/2008 − Oversized document not attached as an image − retained in sealed room (blk). (Entered: 05/20/2008)
82 **SEALED DOCUMENT** Memorandum in Opposition re 65 MOTION for Partial Summary Judgment filed by Defendant C.R. England. NOTE: Oversized document not attached as an image − retained in sealed room. (blk) (Entered: 05/20/2008)
83 AMENDED NOTICE OF HEARING ON MOTIONS re: MOTIONS for Summary Judgment: Motion Hearing set for 6/30/2008 at 02:15 PM in Room 420 before Judge Bruce S. Jenkins. (kms) (Entered: 05/20/2008)
84 Joint MOTION for Extension of Time to File Response/Reply filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Hagen, Scott) (Entered: 06/02/2008)
85 ORDER granting 84 Motion for Extension of Time to File Response/Reply re 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission, 65 MOTION for Partial Summary Judgment, 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson. Replies due by 6/13/2008. Signed by Judge Bruce S. Jenkins on 6/5/08. (blk) (Entered: 06/05/2008)

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 9 of 12

06/16/2008 06/16/2008 06/16/2008 06/16/2008
06/16/2008 06/16/2008 06/16/2008 06/16/2008 06/17/2008 06/17/2008 06/17/2008 06/17/2008 06/17/2008 06/30/2008

86 NOTICE OF CONVENTIONAL FILING of EEOC's Reply in Support of its Motion for Partial Summary Judgment Against Defendant filed by Plaintiff Equal Employment Opportunity Commission re 65 MOTION for Partial Summary Judgment (Meyer, Valerie) (Entered: 06/16/2008)
87 MOTION for Leave to File Excess Pages in Reply Memorandum in Support of Motion for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Hagen, Scott) (Entered: 06/16/2008)
88 MOTION for Leave to File Excess Pages in Reply Memorandum in Support of Motion for Summary Judgment Against Plaintiff−Intervenor Walter Watson filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Text of Proposed Order)(Hagen, Scott) (Entered: 06/16/2008)
89 NOTICE OF CONVENTIONAL FILING of Defendant's Reply Memorandum in Support of Motion for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Defendant C.R. England, Intervenor Defendant C.R. England re 64 Memorandum in Support of Motion, (Hagen, Scott) (Entered: 06/16/2008)
90 NOTICE OF CONVENTIONAL FILING of Defendant's Reply Memorandum in Support of Motion for Summary Judgment Against Plaintiff−Intervenor Walter Watson filed by Defendant C.R. England, Intervenor Defendant C.R. England re 63 Memorandum in Support of Motion, (Hagen, Scott) (Entered: 06/16/2008)
94 **SEALED DOCUMENT** REPLY IN SUPPORT re 65 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 34 Supplemental Authority)(blk) (Entered: 06/17/2008)
97 **SEALED DOCUMENT** REPLY MEMORANDUM IN SUPPORT re 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson filed by Defendant C.R. England. No document attached − oversized and not scanned. (blk) (Entered: 06/17/2008)
98 **SEALED DOCUMENT** REPLY MEMORANDUM IN SUPPORT re 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Defendant C.R. England. No document attached − oversized and not scanned. (blk) (Entered: 06/17/2008)
91 RESPONSE to Motion re 87 MOTION for Leave to File Excess Pages in Reply Memorandum in Support of Motion for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by Plaintiff Equal Employment Opportunity Commission. (Meyer, Valerie) (Entered: 06/17/2008)
92 Plaintiff's MOTION to Strike Defendant's Reply Memorandum filed by Intervenor Plaintiff Walter Watson. (Monahan, Russell) (Entered: 06/17/2008)
93 MEMORANDUM in Support re 92 Plaintiff's MOTION to Strike Defendant's Reply Memorandum filed by Intervenor Plaintiff Walter Watson. (Monahan, Russell) (Entered: 06/17/2008)
95 ORDER granting 87 Motion for Leave to File Excess Pages. Signed by Judge Bruce S. Jenkins on 6/17/08. (blk) (Entered: 06/17/2008)
96 ORDER granting 88 Motion for Leave to File Excess Pages. Signed by Judge Bruce S. Jenkins on 6/17/08. (blk) (Entered: 06/17/2008)
99 Minute Entry for proceedings held before Judge Bruce S. Jenkins: Motion Hearing held on 6/30/2008.Argument &discussion heard. Crt recesses 3:10 PM, reconvenes 3:20 PM. Dft cnsl to supplement record within two weeks. Crt rules:− Reserves (takes under advisement), motion for summary judgment. re 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission filed by C.R. England. Attorney for Plaintiff: Valerie L. Meyer, Russell T. Monahan (Intvp), Attorney for Defendant Scott A. Hagen, Jonathan Pappasideris. Court Reporter: Laura Robinson.(Time Start: 2:15 PM, Time End: 5:20 PM, Room 420.) (mrw) (Entered: 07/09/2008)

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 10 of 12

07/14/2008 07/28/2008
08/11/2008 09/17/2009
09/17/2009 10/07/2009 10/07/2009 10/07/2009 10/07/2009 10/07/2009 10/07/2009 10/29/2009

100 Supplemental Memorandum in Support of Defendant C. R. England's Motions for Summary Judgment BRIEF filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Exhibit A, # 2 Exhibits to Hayes Decl., # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Hagen, Scott) (Entered: 07/14/2008)
101 RESPONSE to Motion re 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson, 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission Supplemental Response filed by Intervenor Plaintiff Walter Watson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Monahan, Russell) Modified on 2/18/2010 − Exhibit 1 from the paper document was removed on 2/18/2010 and placed in the sealed box for 2/18/2010(ce). (Entered: 07/28/2008)
102 REPLY BRIEF re 100 Brief, Reply to Watson's Response to the Supplemental Memorandum in Support of Defendant C. R. England's Motion for Summary Judgment filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Attachments: # 1 Exhibit AScott) (Entered: 08/11/2008)
103 **SEALED DOCUMENT** MEMORANDUM OPINION &ORDER RE: CROSS−MOTIONS FOR SUMMARY JUDGMENT(Fed.R.Civ.P.56)−re 59 Defendant's MOTION for Summary Judgment Against Plaintiff−Intervenor Walter Watson, 65 MOTION for Partial Summary Judgment, 92 Plaintiff's MOTION to Strike Defendant's Reply Memorandum, 61 Defendant's MOTION for Summary Judgment Against Plaintiff Equal Employment Opportunity Commission. (jmr) (Entered: 09/17/2009)
106 CLERK'S JUDGMENT−IT IS ORDERED AND ADJUDGED That judgment be entered in favor of the defendant and both plaintiff's and intervenor plaintiff's causes of action are dismissed signed by Louise S. York. Case Closed. (jmr) (Entered: 09/17/2009)
107 BILL OF COSTS filed by C.R. England. (Hagen, Scott) (Entered: 10/07/2009)
108 AFFIDAVIT of Scott A. Hagen in Support re 107 Bill of Costs filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) (Entered: 10/07/2009)
109 Memorandum of Bill of Costs filed by Defendant C.R. England, Intervenor Defendant C.R. England. (Hagen, Scott) (Entered: 10/07/2009)
110 **SEALED DOCUMENT** SEALED and REDACTED BILL OF COSTS filed by Defendant C.R. England. Document will be retained in the sealed room. (jmr) (Entered: 10/13/2009)
111 **SEALED DOCUMENT** SEALED AND REDACTED VERIFICATION OF BILL OF COSTSfiled by Defendant C.R. England. (jmr) (Entered: 10/13/2009)
112 **SEALED DOCUMENT** SEALED AND REDACTED MEMORANDUM OF COSTS filed by Defendant C.R. England. (jmr) (Entered: 10/13/2009)
113 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/30/2008 before Judge Bruce S. Jenkins. Court Reporter/Transcriber Laura Robinson, Telephone number 801−328−4800.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/19/2009. Redacted Transcript Deadline set for 11/30/2009. Release of Transcript Restriction set for 1/27/2010. (ce) Modified on 10/29/2009 to reflect the

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 11 of 12

10/29/2009
11/12/2009 11/12/2009 11/12/2009 11/13/2009 11/17/2009 11/24/2009 11/24/2009 11/25/2009 12/15/2009 12/18/2009 12/22/2009 01/26/2010
02/25/2010 03/09/2010 06/27/2011

hearing date of 6/30/2008 rather than 2009 (ce). Modified by removing restricted text on 1/27/2010 (rak). (Entered: 10/29/2009)
114 Modification of Docket: re 113 TRANSCRIPT of Proceedings held on 6/30/2008 before Judge Bruce S. Jenkins. ERROR − this hearing was held 6/30/2008, however the transcript reflects 6/30/2009. CORRECTION − the docket text was modified to reflect the correct hearing date. (ce) (Entered: 10/29/2009)
116 NOTICE OF APPEAL as to 106 Clerk's Judgment filed by Equal Employment Opportunity Commission. Appeals to the USCA for the 10th Circuit. No Filing Fee. (Meyer, Valerie) (Entered: 11/12/2009)
117 Transmission of Preliminary Record to USCA re 116 Notice of Appeal. (Attachments: # 1 Notice of Appeal, # 2 Judgment, # 3 Docket)(jmr) (Entered: 11/12/2009)
118 TRANSCRIPT REQUEST by Equal Employment Opportunity Commission for proceedings held on 6/30/2008 before Judge Jenkins, re 116 Notice of Appeal (Meyer, Valerie) (Entered: 11/12/2009)
119 USCA Case Number Case Appealed to Tenth Case Number 09−4207 for 116 Notice of Appeal filed by Equal Employment Opportunity Commission. (Attachments: # 1 Reminder)(jmr) (Entered: 11/13/2009)
120 Please be advised the Record is complete for purposes of appeal for USCA case number 09−4207 re 116 Notice of Appeal. (jmr) (Entered: 11/17/2009)
121 NOTICE OF APPEAL filed by Walter Watson. Appeals to the USCA for the 10th Circuit. Filing fee $ 455, receipt number 10880000000001009128. (Monahan, Russell) (Entered: 11/24/2009)
122 Transmission of Preliminary Record to USCA re 121 Notice of Appeal. (Attachments: # 1 Judgment, # 2 Notice of Appeal, # 3 Docket)(jmr) (Entered: 11/24/2009)
123 USCA Case Number Case Appealed to Tenth Case Number 09−4217 for 121 Notice of Appeal filed by Walter Watson. (Attachments: # 1 Reminder)(jmr) (Entered: 11/30/2009)
124 Costs Taxed in amount of $ 5,614.81 for defendant against Plaintiff signed by Louise S. York 12/15/09. (jmr) (Entered: 12/15/2009)
125 Stipulated MOTION to Stay Execution of Costs Pending Appeal filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Meyer, Valerie) (Entered: 12/18/2009)
126 ORDER granting Stipulated 125 Motion to Stay Execution of Costs Pending Appeal filed by Plaintiff Equal Employment Opportunity Commission. Signed by Judge Bruce S. Jenkins on 12/22/09. (jmr) (Entered: 12/22/2009)
127 Please be advised the Record is complete for purposes of appeal for USCA case number 09−4217 re 121 Notice of Appeal.(Per Notice from the Tenth Circuit. The transcript order form for this appeal was never filed at this court). (jmr) (Entered: 01/26/2010)
129 MOTION Substitute Redacted Exhibit filed by Intervenor Plaintiff Walter Watson. (Attachments: # 1 Exhibit Redacted Exhibit 1, # 2 Text of Proposed Order)(Monahan, Russell) (Entered: 02/25/2010)
130 ORDER−granting 129 Motion Substitute Redacted Exhibit filed by Intervenor Plaintiff Walter Watson. Signed by Judge Bruce S. Jenkins on 3/9/10. (jmr) (Entered: 03/09/2010)
131 MANDATE of USCA (09−4207)(09−4217) as to 116 Notice of Appeal filed by Equal Employment Opportunity Commission, 121 Notice of Appeal filed by Walter Watson. According to the USCA the Judgment of the USDC for the Dist of UT is Affirmed. Judgment included with mandate: Yes. (Attachments: # 1 Judgment, # 2 Mandate Cover Letter)(las) (Entered: 06/27/2011)

Case: 2:06-cv-00811-BSJ As of: 08/09/2011 08:22 AM MDT 12 of 12

06/28/2011 06/28/2011 06/29/2011

132 MOTION to Stay Taxation of Costs and Vacate Order filed by Intervenor Defendant C.R. England, Defendant C.R. England. (Hagen, Scott) (Entered: 06/28/2011)
133 MEMORANDUM in Support re 132 MOTION to Stay Taxation of Costs and Vacate Order filed by Intervenor Defendant C.R. England, Defendant C.R. England. (Attachments: # 1 Exhibit Taxation of Costs, # 2 Exhibit 12/22/09 Order, # 3 Text of Proposed Order)(Hagen, Scott) (Entered: 06/28/2011)
134 ORDER GRANTING MOTION TO VACATE ORDER AND LIFT STAY OF TAXATION OF COSTS− re 126 Order on Motion to Stay, 132 MOTION to Stay Taxation of Costs and Vacate Order filed by C.R. England, Motions terminated: 132 MOTION to Stay Taxation of Costs and Vacate Order filed by C.R. England. Signed by Judge Bruce S. Jenkins on 6/29/11. (jmr) (Entered: 06/29/2011)

 
 General Docket Tenth Circuit Court of Appeals

Court of Appeals Docket #: 09-4207 Nature of Suit: 1446 Americans w/Disab Act - Other EEOC, et al v. C.R. England Appeal From: United States District Court for the District of Utah Fee Status: U.S. appellant

Case Type Information: 1) civil 2) USA as party 3) -

Originating Court Information: District: 1088-2 : 2:06-CV-00811-BSJ Court Reporter: Dawn Brunner-Hahn, -, Court Reporter Court Reporter: Ashley Davis, Court Reporter: Laura Robinson, Trial Judge: Bruce S. Jenkins, -, Senior U.S. District Judge Date Filed: 09/25/2006 Date NOA Filed: 11/12/2009

Date Rec'd COA: 11/12/2009

Prior Cases: None

Current Cases: Companion

Lead 09-4207

Member 09-4217

Panel Assignment: Not available

Start

End

11/25/2009

Docketed: 11/13/2009 Termed: 05/03/2011

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff - Appellant

Mary Jo O'Neill Email: mary.oneill@eeoc.gov [NTC Government] Equal Employment Opportunity Commission Phoenix District Office Firm: 602/640-5000 3300 North Central Avenue Suite 690 Phoenix, AZ 85012
Anne Noel Occhialino Direct: 202-663-4724 Email: annenoel.occhialino@eeoc.gov [NTC Government] Equal Employment Opportunity Commission Office of General Counsel / Appellate Services Firm: 202/663-4733 131 M Street, NE Washington, DC 20507
Sally C. Shanley Email: sally.shanley@eeoc.gov [NTC Government] Equal Employment Opportunity Commission Phoenix District Office Firm: 602/640-5000
3300 North Central Avenue Suite 690 Phoenix, AZ 85012
Stephen J. Sorenson, Esq. Direct: 801-325-3218 [NTC Government] Office of the United States Attorney District of Utah Firm: 801-524-5682

WALTER WATSON Plaintiff-Intervenor
v.
C.R. ENGLAND Defendant - Appellee

Firm: 801-524-5682 185 South State Street, Room 300 Salt Lake City, UT 84111
Jeannette Frazier Swent Email: jeannette.swent@usdoj.gov [NTC Government] Office of the United States Attorney District of Utah Firm: 801-524-5682 185 South State Street, Room 300 Salt Lake City, UT 84111
Michael E. Blue Email: mblue@rqn.com [NTC Retained] Ray Quinney & Nebeker P.C. Firm: 801/532-1500 36 South State Street, Suite 1400 P.O. Box 45385 Salt Lake City, UT 84145-0385
Scott A. Hagen Direct: 801-532-1500 Email: shagen@rqn.com [NTC Retained] Ray Quinney & Nebeker P.C. Firm: 801/532-1500 36 South State Street, Suite 1400 P.O. Box 45385 Salt Lake City, UT 84145-0385

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,
and WALTER WATSON,
Intervenor-Plaintiff, v. C.R. ENGLAND,
Defendant - Appellee.

11/13/2009

[9710915] Civil case docketed. Preliminary record filed. DATE RECEIVED: 11/12/2009 Docketing

23 pg, 155.18 KB statement due 11/30/2009 for Equal Employment Opportunity Commission. Transcript order form due 11/30/2009 for Mary Jo O'Neill. Notice of appearance due on 11/30/2009 for C.R. England and Equal

Employment Opportunity Commission.

11/16/2009

[9711366] Notice filed that the transcript is already on file in the district court filed by Ms. Valerie Leigh

1 pg, 59.83 KB Meyer for EEOC. Served on: 11/16/2009. Manner of Service: email, clerk. VLM

11/17/2009
2 pg, 32.16 KB

[9711690] Notice of appearance submitted by Scott A. Hagen and Michael E. Blue for Appellee C.R. England for court review. Certificate of Interested Parties: Yes. Served on 11/17/2009. Manner of Service: US mail. SAH

11/17/2009
2 pg, 42.45 KB

[9711717] Notice of appearance filed by Mr. Michael E. Blue for C.R. England and Mr. Scott A. Hagen for C.R. England. CERT. OF INTERESTED PARTIES: y. Served on 11/17/2009. Manner of Service: US mail.

11/17/2009

[9711735] Notice of appearance submitted by Anne Noel Occhialino for Appellant EEOC for court review.

2 pg, 22.03 KB Certificate of Interested Parties: Yes. Served on 11/17/2009. Manner of Service: clerk. ANO

11/17/2009

[9711822] Notice of appearance filed by Ms. Anne Noel Occhialino for EEOC. CERT. OF INTERESTED

2 pg, 22.56 KB PARTIES: y. Served on 11/17/2009. Manner of Service: clerk.

11/17/2009

[9712008] Filed notice record is complete. Served on 11/17/2009. Manner of Service: email. Appellant's

1 pg, 113.8 KB brief and appendix due on 12/31/2009 for Equal Employment Opportunity Commission.

11/18/2009

[9712123] Docketing statement filed by EEOC. Served on 11/18/2009. Manner of Service: clerk.--[Edited

23 pg, 161.16 KB 11/18/2009 by LAB to unseal documents- one attachment is sealed.] ANO

11/20/2009

[9713190] Case referred for mediation conferencing. Please open the document link in this notice for

1 pg, 15.38 KB additional information.

11/25/2009

[9714551] Motion filed by Appellant EEOC to extend time to file appellant/petitioner's brief until

4 pg, 13.99 KB 01/14/2010. Served on: 11/25/2009. Manner of service: clerk. ANO

11/25/2009
1 pg, 49.12 KB

[9714633] Order filed by Clerk of the Court granting Attorney motion to extend time to file appellant's brief. Appellant's brief and appendix due on 01/14/2010 for Equal Employment Opportunity Commission. Served on 11/25/2009.

11/25/2009

[9714634] Minute order filed - Appellant/Petitioner's brief due on 01/14/2010 for Equal Employment Opportunity Commission. (Text Only - No Attachment)

12/23/2009

[9722791] On the court's own motion and pursuant to 10th Cir. R. 33.1, order filed by (CLK) extending

1 pg, 14.39 KB time to file appellant's brief and appendix until 02/04/2010 in 09-4207.

02/04/2010

[9734334] Motion filed by Appellant EEOC to seal Appellant's Opening Brief and Appendix Volumes II and

10 pg, 37.02 KB III. Served on: 02/04/2010. Manner of service: clerk. ANO

02/04/2010

[9734411] Order filed by Clerk of the Court response to Attorney motion to seal. Response due on

1 pg, 50.16 KB 02/12/2010 for C.R. England. Served on 02/04/2010.

02/04/2010

This entry has been removed from the docket as appellant's sealed brief was amended on 2/22/10, pursuant to this court's order of the same date. ANO

02/11/2010
0 pg, 0 KB

[9736484] Sealed response filed by C.R. England to Opposed Motion of the Equal Employment Opportunity Commission to File its Opening Brief and Volumes II and III of Appendix Under Seal. Served on 02/11/2010. Manner of Service: US mail, email. SAH

02/17/2010
2 pg, 52.57 KB

[9737528] Order filed by Judges Kelly and Gorsuch - This matter is before the court on the Opposed Motion of the Equal Employment Opportunity Commission to File Its Opening Brief and Volumes II and III of Appendix Under Seal (the “Motion”). As noted, Appellee C.R. England, Inc., opposes the Motion and filed a response. Upon consideration, the Motion is provisionally granted as follows: The EEOC’s opening brief and Volumes II and III shall be filed under seal. The EEOC submitted its opening brief electronically using the proper sealing technique. The hard copies of the opening brief are also marked as sealed. Volumes II and III of the appendix, which were transmitted to the court only in hard copy, were also marked sealed. The EEOC need not take any further action to maintain the sealed nature of these documents at this time. The ultimate propriety of keeping the opening brief and Volumes II and III of the appendix sealed is referred to the panel of judges that will decide this appeal on the merits. [9734334-2] [9736484-2] Served on 02/17/2010.

02/17/2010 02/17/2010

[9737530] Minute order filed - Appellee/Respondent brief now due 03/11/2010 for C.R. England. (Text Only - No Attachment)
This entry has been removed from the docket. An amended appendix was filed with appellant's amended

02/18/2010
5 pg, 16.64 KB

brief on 2/22/10 pursuant to this court's order of the same date. See the entry for appellant's amended brief filed 2/22/10 for amended appendix. [9738105] Motion filed by Appellant EEOC for leave to amend appellant's brief and appendix. Served on: 02/18/2010. Manner of service: clerk.--[Edited 02/18/2010 by LAB to correct relief sought.] ANO

02/18/2010

This entry has been removed from the docket - the brief has been received but not filed pending ruling on the motion for leave to file amended brief and appendix. ANO

02/18/2010
0 pg, 0 KB

[9738175] Sealed Amended Opening Brief received from EEOC but not filed pending ruling on the motion for leave to amend brief and appendix.

02/22/2010
2 pg, 46.27 KB

[9738724] Order filed by Clerk of the Court (lss) granting Appellant EEOC's motion to amend their opening brief and appendix. The brief shall be filed as of the date of this order. Consistent with the court's 2/17/10 order, the amended opening brief and amended Volumes II, III, and IV of the appendix shall be filed under seal on a provisional basis, with the ultimate decision on whether to keep these documents under seal referred to the merits panel. The prior deadline for Appellee's brief is vacated. Appellee's brief shall be served and filed within 30 days of the date of this letter. Appellee's brief due March 24, 2010. Served on 02/22/2010.

02/22/2010
0 pg, 0 KB

[9738725] Appellant amended sealed brief filed by EEOC (filed pursuant to this court's 2/22/10 order). Original and 7 copies. Served on 02/18/2010 by email. Oral argument requested? y. Amended appendix filed. Original and 1 copy. Appendix pages: 1237. Number of volumes: 4 (volumes 2-4 of the record are sealed.--[Edited 02/22/2010 by LAB to reflect sealed status of brief and appendix.]

03/19/2010

[9746642] Motion filed by Appellee C.R. England to extend time to file appellee's brief until 03/31/2010.

3 pg, 22.23 KB Served on: 03/19/2010. Manner of service: US mail. SAH

03/22/2010

[9746986] Order filed by Clerk of the Court granting Attorney motion to extend time to file appellee's brief.

1 pg, 49.88 KB Appellee's brief now due 03/31/2010 for C.R. England. Served on 03/22/2010.

03/31/2010
0 pg, 0 KB

[9749905] Appellee/Respondent's sealed brief filed by C.R. England. Original and 7 copies. Served on: 03/31/2010. Manner of service: US mail. Oral argument requested? Yes.--[Edited 04/01/2010 by LAB to seal attached documents.] SAH

04/01/2010

[9750122] Minute order filed - Appellant's reply brief now due 04/19/2010 by Equal Employment Opportunity Commission.. (Text Only - No Attachment).

04/19/2010
0 pg, 0 KB

[9754994] Sealed appellant/petitioner's reply brief filed by EEOC. Original and 7 copies. Served on 04/19/2010. Manner of Service: ECF/NDA. ANO

06/02/2010

[9768333] Notice of appearance submitted by Jeannette F. Swent for Appellant EEOC for court review. Certificate of Interested Parties: No.--[Edited 06/02/2010 by BV - To change interested parties to No interested party listed as an attorney of record] Served on 06/02/2010. Manner of Service: ECF/NDA, US mail.--[Edited 06/02/2010 by BV - To remove the PDF from the docket entry as pleading has been filed as of 06/02/2010.] JFS

06/02/2010

[9768359] Notice of appearance filed by Ms. Jeannette Frazier Swent for EEOC. CERT. OF

4 pg, 45.42 KB INTERESTED PARTIES: n. Served on 06/02/2010. Manner of Service: ECF/NDA.

07/26/2010
1 pg, 394.39 KB

[9782499] Calendar notice sent to counsel. Arguments to be held Thursday, September 23, 2010 at 9:00 am in Courtroom IV, Byron White United States Courthouse, Denver, CO. Counsel is required to go to http://www.ca10.uscourts.gov under the argument calendar tab to obtain an important notice regarding calendared cases and required forms. The calendar acknowledgment form must be completed and filed with the clerk via Electronic Case Filing within 10 days of today's date.

07/26/2010

[9782583] Oral Argument Acknowledgment Form filed by Mr. Walter Watson. Served on 07/26/2010.

1 pg, 26.56 KB Manner of Service: ECF/NDA. [09-4217, 09-4207] RTM

07/27/2010
1 pg, 93.49 KB
07/28/2010
1 pg, 402.74 KB
07/28/2010

[9782723] Oral Argument Acknowledgment Form filed by C.R. England in 09-4207, 09-4217. Served on 07/27/2010. Manner of Service: ECF/NDA. [09-4207, 09-4217] SAH
[9783632] Oral Argument Acknowledgment Form filed by EEOC. Served on 07/28/2010. Manner of Service: ECF/NDA. ANO
[9783750] Monahan, Russell Thomas removed from arguing. Correction - atty docketing error.

09/23/2010

[9800168] Matter consolidated for argument; Anne Occhialino and Russell Monahan argued for Appellant;

1 pg, 30.26 KB Scott Hagen argued for Appellee; Submitted to Judges Kelly, Ebel and Holmes. [09-4207, 09-4217]

03/11/2011

[9848015] Supplemental authority filed by EEOC. Served on 03/11/2011. Manner of Service: ECF/NDA.

18 pg, 158.69 KB ANO

03/31/2011

[9853992] Response filed by C.R. England in 09-4207, 09-4217 to EEOC 28(j) Supplemental Authority.

2 pg, 197.09 KB Served on 03/31/2011. Manner of Service: ECF/NDA. [09-4207, 09-4217] SAH

05/03/2011

[9863435] Order filed by Judges Kelly, Ebel and Holmes [as found in the court's opinion] granting EEOC's

motion to seal. [Text only entry. No document attached.] [09-4207, 09-4217]

05/03/2011

[9863439] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Kelly;

55 pg, 120.71 KB Ebel; and Holmes, authoring. Mandate to issue. [09-4207, 09-4217]

05/03/2011
2 pg, 14.12 KB

[9863446] Judgment for opinion filed. [09-4207, 09-4217]

06/27/2011
1 pg, 20.59 KB

[9879013] Mandate issued. [09-4207, 09-4217]

 
 General Docket Tenth Circuit Court of Appeals

Court of Appeals Docket #: 09-4217 Nature of Suit: 1446 Americans w/Disab Act - Other EEOC, et al v. C.R. England Appeal From: United States District Court for the District of Utah Fee Status: fee paid

Case Type Information: 1) civil 2) USA as party 3) -

Originating Court Information: District: 1088-2 : 2:06-CV-00811-BSJ Court Reporter: Ashley Davis, Court Reporter: Laura Robinson, Trial Judge: Bruce S. Jenkins, -, Senior U.S. District Judge Date Filed: 09/25/2006 Date NOA Filed: 11/24/2009

Date Rec'd COA: 11/24/2009

Prior Cases: None

Current Cases: Companion

Lead 09-4207

Member 09-4217

Panel Assignment: Not available

Start

End

11/25/2009

Docketed: 11/25/2009 Termed: 05/03/2011

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff

Valerie Leigh Meyer Direct: 602-640-4988 [NTC Government] Equal Employment Opportunity Commission Phoenix District Office Firm: 602/640-5000 3300 North Central Avenue Suite 690 Phoenix, AZ 85012
Mary Jo O'Neill Email: mary.oneill@eeoc.gov [NTC Government] Equal Employment Opportunity Commission Phoenix District Office Firm: 602/640-5000 3300 North Central Avenue Suite 690 Phoenix, AZ 85012
Sally C. Shanley Email: sally.shanley@eeoc.gov [NTC Government] Equal Employment Opportunity Commission Phoenix District Office Firm: 602/640-5000 3300 North Central Avenue
Suite 690 Phoenix, AZ 85012
Stephen J. Sorenson, Esq. Direct: 801-325-3218 [NTC Government] Office of the United States Attorney District of Utah Firm: 801-524-5682 185 South State Street, Room 300

WALTER WATSON Plaintiff-Intervenor - Appellant
v. C.R. ENGLAND
Defendant - Appellee

185 South State Street, Room 300 Salt Lake City, UT 84111
Russell Thomas Monahan Direct: 801-595-8600 Email: russ@cooklawfirm.com [NTC Retained] Cook & Monahan 230 South 500 East Suite 465 Salt Lake City, UT 84102 US
Daniel W. Morse Email: dan@cooklawfirm.com [NTC Retained] Cook & Monahan 230 South 500 East Suite 465 Salt Lake City, UT 84102 US
Anne Noel Occhialino Direct: 202-663-4724 Email: annenoel.occhialino@eeoc.gov [NTC Government] Equal Employment Opportunity Commission Office of General Counsel / Appellate Services Firm: 202/663-4733 131 M Street, NE Washington, DC 20507
Michael E. Blue Email: mblue@rqn.com [NTC Retained] Ray Quinney & Nebeker P.C. Firm: 801/532-1500 36 South State Street, Suite 1400 P.O. Box 45385 Salt Lake City, UT 84145-0385
Scott A. Hagen Direct: 801-532-1500 Email: shagen@rqn.com [NTC Retained] Ray Quinney & Nebeker P.C. Firm: 801/532-1500 36 South State Street, Suite 1400 P.O. Box 45385 Salt Lake City, UT 84145-0385

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
and WALTER WATSON,
Intervenor-Plaintiff - Appellant, v. C.R. ENGLAND, Inc.,
Defendant - Appellee.

11/25/2009

[9714889] Civil case docketed. Preliminary record filed. DATE RECEIVED: 11/24/2009 Docketing

25 pg, 243.04 KB statement due 12/10/2009 for Walter Watson. Transcript order form due 12/10/2009 for Russell Thomas Monahan. Notice of appearance due on 12/10/2009 for C.R. England and Walter Watson.

12/10/2009
2 pg, 21.88 KB

[9718740] Notice of appearance submitted by Russell Thomas Monahan for Appellant Mr. Walter Watson for court review. Certificate of Interested Parties: Yes. Served on 12/10/2009. Manner of Service: US mail. RTM

12/10/2009

[9718742] Notice filed that the transcript is already on file in the district court filed by Mr. Russell Thomas

2 pg, 13.65 KB Monahan for Mr. Walter Watson. Served on: 12/10/2009. Manner of Service: US mail. RTM

12/10/2009

[9718753] Docketing statement filed by Mr. Walter Watson. Served on 12/10/2009. Manner of Service:

27 pg, 774.51 KB US mail. --[Edited 12/14/2009 by AT. Entire docketing statement is not sealed. Only the attachments are sealed .] RTM

12/10/2009

[9718843] Notice of appearance filed by Mr. Russell Thomas Monahan for Mr. Walter Watson. CERT. OF

2 pg, 21.54 KB INTERESTED PARTIES: y. Served on 12/10/2009. Manner of Service: US mail.

01/26/2010

[9731498] Filed notice record is complete. Served on 01/26/2010. Manner of Service:. Appellant's brief

1 pg, 113.63 KB and appendix due on 03/08/2010 for Walter Watson.

01/26/2010

[9731499] Minute order filed - Appellant/Petitioner's brief due on 03/08/2010 for Walter Watson. (Text Only - No Attachment)

01/27/2010

[9731979] Notice of appearance submitted by Scott A. Hagen and Michael E. Blue for Appellee C.R. England for court review. Certificate of Interested Parties: Yes. Served on 01/27/2010. Manner of Service: US mail.--[Edited 01/27/2010 by BV - To remove the PDF from docket entry as pleading has been filed as of 01/27/2010.] SAH

01/27/2010

[9732023] Notice of appearance filed by Mr. Michael E. Blue and Mr. Scott A. Hagen for C.R. England.

2 pg, 43.92 KB CERT. OF INTERESTED PARTIES: y. Served on 01/27/2010. Manner of Service: email.

03/08/2010

[9742856] Motion filed by Appellant Mr. Walter Watson to seal Appellant's Opening Brief and Appendix

3 pg, 27.64 KB Volumes 2, 3 and 4.. Served on: 03/08/2010. Manner of service: email. RTM

03/08/2010
0 pg, 0 KB

[9742858] Sealed appellant/petitioner's brief filed by Mr. Walter Watson. Original and 7 copies. Served on 03/08/2010 by hand delivery, ECF/NDA, email. Oral argument requested? Yes. RTM

03/08/2010

[9743701] Appendix filed by Appellant Mr. Walter Watson. Original and 1 copy. Appendix pages: 882. Number of volumes: 4. Volumes 2 through 4 are SEALED. Hardcopy only. Served on 03/08/2010. Manner of Service: US mail.

03/09/2010

[9743145] Order filed by Clerk of the Court (err) granting Motion filed by Appellant Mr. Walter Watson to

1 pg, 49.41 KB seal Appellant's Opening Brief and Appendix Volumes 2, 3 and 4. Served on 03/09/2010.

03/10/2010

[9743733] Minute order filed - Appellee's brief now due 04/07/2010 for C.R. England. (Text Only - No Attachment).

03/31/2010

[9749730] Motion filed by Appellee C.R. England to extend time to file appellee/respondent's brief until

3 pg, 22.03 KB 04/21/2010. Served on: 03/31/2010. Manner of service: US mail. SAH

03/31/2010

[9749834] Order filed by Clerk of the Court granting Attorney motion to extend time to file eres brief.

1 pg, 51.62 KB Appellee's brief now due 04/21/2010 for C.R. England. Served on 03/31/2010.

04/21/2010
0 pg, 0 KB

[9755968] Sealed appellee/respondent's brief filed by C.R. England. Original and 7 copies. Served on: 04/21/2010. Manner of service: US mail. Oral argument requested? Yes. SAH

04/22/2010
2 pg, 24.81 KB

[9756189] Appellee's deficient brief filed by C.R. England. Type of deficiency: overlength, filed under seal without an order granting leave to seal brief. Appellee's brief now due 05/03/2010 for C.R. England.-[Edited 05/03/2010 by LAB - deficiency corrected on 5/3/10.]

04/29/2010

[9758411] Motion filed by Appellant Mr. Walter Watson to seal. Served on: 04/29/2010. Manner of

3 pg, 70.79 KB service: ECF/NDA. RTM

05/03/2010

[9759208] Errata sheet filed by Mr. Scott A. Hagen for C.R. England. Original and 7 copies. Served on

3 pg, 21.73 KB 05/03/2010. Manner of Service: ECF/NDA. SAH

05/03/2010
2 pg, 52.32 KB
05/03/2010

[9759266] Order filed by Clerk of the Court provisionally granted the Appellant's motion to seal briefs but referring the motion to seal [9758411-2] to the panel on the merits for the ultimate propriety of keeping the response and reply briefs sealed. Served on 05/03/2010.--[Edited 05/03/2010 by LAB to clarify order.]
[9759284] Minute order filed - Appellant's reply brief due 05/20/2010 by Walter Watson. Per this court's 5/3/10 order, this brief may be filed under seal. (Text Only - No Attachment)

05/19/2010
0 pg, 0 KB

[9764189] Sealed response filed by C.R. England to Appellant's Motion for Appellee's Brief and Appellant's Reply Brief to be Filed Under Seal. Served on 05/19/2010. Manner of Service: email, US mail. SAH

05/19/2010
1 pg, 49.66 KB

[9764275] Order filed by Clerk of the Court (lss) referring - response filed by C.R. England to Appellant's Motion for Appellee's Brief and Appellant's Reply Brief to be Filed Under Seal [9764189-2] to the panel on the merits. Served on 05/19/2010.

05/20/2010
0 pg, 0 KB

[9765012] Sealed appellant/petitioner's reply brief filed by Mr. Walter Watson. Original and 7 copies. Served on 05/20/2010. Manner of Service: ECF/NDA. RTM

07/26/2010
1 pg, 394.39 KB

[9782500] Calendar notice sent to counsel. Arguments to be held Thursday, September 23, 2010 at 9:00 am in Courtroom IV, Byron White United States Courthouse, Denver, CO. Counsel is required to go to http://www.ca10.uscourts.gov under the argument calendar tab to obtain an important notice regarding calendared cases and required forms. The calendar acknowledgment form must be completed and filed with the clerk via Electronic Case Filing within 10 days of today's date.

07/26/2010

[9782583] Oral Argument Acknowledgment Form filed by Mr. Walter Watson. Served on 07/26/2010.

1 pg, 26.56 KB Manner of Service: ECF/NDA. [09-4217, 09-4207] RTM

07/27/2010

[9782723] Oral Argument Acknowledgment Form filed by C.R. England in 09-4207, 09-4217. Served on

1 pg, 93.49 KB 07/27/2010. Manner of Service: ECF/NDA. [09-4207, 09-4217] SAH

09/23/2010

[9800168] Matter consolidated for argument; Anne Occhialino and Russell Monahan argued for Appellant;

1 pg, 30.26 KB Scott Hagen argued for Appellee; Submitted to Judges Kelly, Ebel and Holmes. [09-4207, 09-4217]

03/31/2011

[9853992] Response filed by C.R. England in 09-4207, 09-4217 to EEOC 28(j) Supplemental Authority.

2 pg, 197.09 KB Served on 03/31/2011. Manner of Service: ECF/NDA. [09-4207, 09-4217] SAH

05/03/2011

[9863435] Order filed by Judges Kelly, Ebel and Holmes [as found in the court's opinion] granting EEOC's motion to seal. [Text only entry. No document attached.] [09-4207, 09-4217]

05/03/2011

[9863439] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Kelly;

55 pg, 120.71 KB Ebel; and Holmes, authoring. Mandate to issue. [09-4207, 09-4217]

05/03/2011
2 pg, 14.12 KB

[9863446] Judgment for opinion filed. [09-4207, 09-4217]

06/27/2011
1 pg, 20.59 KB

[9879013] Mandate issued. [09-4207, 09-4217]