2020 UT App 166

THE UTAH COURT OF APPEALS

JOSE MEDINA,

Appellant,

v.

JEFF DUMAS CONCRETE CONSTRUCTION LLC

AND JEFF DUMAS,

Appellees.

Opinion

No. 20190654-CA

Filed December 17, 2020

Third District Court, Salt Lake Department

The Honorable Barry G. Lawrence

No. 180907336

Daniel F. Bertch, Attorney for Appellant

Stephen J. Traynor and Scarlet R. Smith, 

Attorneys for Appellees

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Asserting that his termination resulted from his pursuit of 

a workers’ compensation claim, thus violating public policy, Jose 

Medina sued his former employer, Jeff Dumas Concrete 

Construction, LLC and Jeff Dumas (collectively, JDCC). The 

district court granted summary judgment in favor of JDCC. 

Medina appeals, and we reverse. 
Medina v. Dumas

20190654-CA 2 2020 UT App 166

BACKGROUND1

¶2 JDCC hired Medina as a laborer on its construction crew 

in 2015. Medina worked as an at-will employee under the 

direction of a JDCC supervisor (Supervisor). Supervisor

communicated with Medina regarding his work schedule, job 

sites, vacation, and other time off largely via text message, 

although sometimes the communication was verbal. 

¶3 In August 2017, Medina suffered a work-related injury to 

his back and shoulder when a large concrete form he was lifting 

fell and knocked him to the ground. Medina informed 

management but continued working despite his injury,

exacerbating his pain. He did not speak of his injury again until 

around October 18, 2017, when “he felt his back finally go out”

as he lifted a heavy bucket on a different job site. When Medina 

reported this aggravation, he was told, “Get off the job site right 

now if you are injured.” JDCC thereafter placed Medina on light 

duty, which lasted until his termination nine months later. 

¶4 Following the aggravation of his injury, Medina promptly 

filed for workers’ compensation benefits with JDCC’s insurer, 

the Workers’ Compensation Fund of Utah (WCFU). Although 

WCFU paid for some of Medina’s treatment, it eventually denied 

further treatment “based on a pre-existing pathology in 

[Medina’s] back.” Medina subsequently filed a workers’ 

compensation claim with the Utah Labor Commission in March 

2018, which WCFU defended on behalf of JDCC. As part of that 

 

1. “In reviewing a district court’s grant of summary judgment, 

we view the facts and all reasonable inferences drawn therefrom 

in the light most favorable to the nonmoving party,” and we 

ordinarily “recite the facts accordingly.” Ockey v. Club Jam, 2014 

UT App 126, ¶ 2 n.2, 328 P.3d 880 (quotation simplified). We 

follow that practice to the extent possible in this opinion, but the 

basis for the court’s ruling and the arguments presented require 

that we share JDCC’s version of events in some detail.
Medina v. Dumas

20190654-CA 3 2020 UT App 166

case, Medina’s deposition was noticed up by JDCC’s workers’ 

compensation counsel for July 16, 2018.

¶5 Although Medina initially attended physical therapy

during work hours, Supervisor soon informed him that he 

would have to attend therapy on his own time. Nevertheless, 

due to his back injury, Medina missed work once in November 

2017 and nine times between March and July 2018. Each time he 

missed work, the parties agree, Medina informed Supervisor via 

text message that he would be absent.2 Medina also “personally 

requested and was granted . . . from Jeff Dumas” a vacation from 

July 2–6, concerning which Medina texted Supervisor on July 1

stating that “the next week I will not be able to go to work.”3

 

2. In his memorandum opposing summary judgment, Medina 

contended that “[a]ny days missed were approved in advance.” 

In support of this claim, he cited his affidavit in which he 

asserted that he “never missed work without asking for time off, 

or notifying [Supervisor] that [he] was unable to work due to 

[his] back injury.” Supervisor asserted in an affidavit that for six

of his absences, Medina informed him shortly after 4:00 a.m. that 

he could not make it to work that day. This assertion does not 

contradict Medina’s statement in his affidavit, i.e., that he had 

always notified Supervisor when he was unable to work. 

Furthermore, a translation from Spanish to English of the 

relevant text messages, including the times and dates of the 

messages, which Medina attached as an exhibit to his 

memorandum corroborates Supervisor’s claim. In its summary 

judgment order, the district court characterized as uncontested 

the fact that for several of his absences, “Medina sent . . . text 

messages to [Supervisor] . . . indicating that he would not be to 

work that day due to his back condition.” 

3. The original text messages were in Spanish. Medina attached 

an English translation of the text messages as an exhibit to his 

memorandum opposing summary judgment. Although 

Supervisor also translated some of the text messages as part of 

(continued...)
Medina v. Dumas

20190654-CA 4 2020 UT App 166

Supervisor responded, “From what I see it looks like you no 

longer want to work,” to which Medina replied, “Yes . . . but I’m

[gone].”

¶6 In an affidavit, Supervisor stated that Medina’s 

“repeatedly taking days off work without permission and with 

short notice left [his] crew short-handed many times and was 

very frustrating.” He also attested that following Medina’s 

week-long absence in July, he told Dumas,

[Medina] is missing work once or twice a week 

almost every week. He missed work all of last 

week. He never asks permission, and never gives 

me advance notice. He texts me the morning of the 

day he’s missing work that he’s not coming in. 

What should I do with him?

Supervisor stated that Dumas—whom Medina claims had 

personally given him permission to take the week off—replied, 

“Just get rid of him.”

¶7 Medina informed Supervisor that he would be taking July 

16 off “to attend [his] deposition.”4 In his affidavit, Medina 

acknowledged that “[t]his left [Supervisor] short-handed for the 

project we were working on, so on that day [Supervisor] took the 

 

(...continued)

his affidavit, we use the translations Medina provided, which do 

not differ in substance from those of Supervisor.

4. In his affidavit, Supervisor denied that Medina notified him of 

his intended absence on July 16, 2018, and further asserted that 

Medina “did not communicate to [him] that he was having his 

deposition taken.” And in briefing its summary judgment 

motion, JDCC contended that it never received actual notice of 

the deposition from its counsel because the notice was mailed to 

the wrong address. 
Medina v. Dumas

20190654-CA 5 2020 UT App 166

remaining workers to a different job site.” During the deposition, 

Supervisor texted Medina, “[Y]ou are fired you don’t feel like 

working anyways if you want to ask [Dumas] but that’s all.” 

Medina’s counsel later emailed the attorney representing JDCC 

in the workers’ compensation proceeding, inviting JDCC to 

“rescind the firing and I won’t sue for wrongful termination.” 

JDCC did not rescind the termination. In October 2018, Medina 

initiated the current lawsuit for wrongful termination, alleging 

that JDCC fired him “because he made a workers compensation 

claim.” 

¶8 In its answer, JDCC stated that it did not know Medina 

was giving a deposition, much less the date of the deposition. It 

also denied firing Medina in retaliation for his making a 

workers’ compensation claim, instead asserting that 

Medina was fired for not showing up to work for 

numerous days, without any notice or explanation 

to JDCC; for failing to answer his telephone in 

response to calls from employees of JDCC in an 

effort to determine why he hadn’t shown up for 

work; and for taking a week long unauthorized 

vacation that was never approved by anyone at 

JDCC.

JDCC also asserted “that the purported incident” that allegedly 

caused Medina’s injuries “never occurred and was wholly 

fabricated by [Medina].” JDCC contended that Medina instead

“was injured while working for a prior employer, and not while 

employed by JDCC.”

¶9 JDCC later moved for summary judgment. In opposing 

the motion, Medina focused on five facts5 that he contended 

 

5. In his memorandum opposing summary judgment, Medina 

also disputed some of JDCC’s factual allegations: that he did not 

seek medical care for his injury; that he never discussed his 

(continued...)
Medina v. Dumas

20190654-CA 6 2020 UT App 166

created a genuine dispute about whether his workers’ 

compensation claim was a substantial factor in JDCC’s decision 

to fire him: 

a. [JDCC’s] knowledge of the pending workers’ 

compensation claim; 

b. The timing of [Medina’s] firing during his 

deposition; 

c. [JDCC’s] “silence” in not responding to 

[Medina’s] counsel’s offer to allow [Medina] to 

be reinstated after his firing;

d. Statements in [JDCC’s] Answer demonstrating 

“[JDCC’s] animus” towards [Medina];

e. Statements made to [Medina] to “get off the job 

site” following his injury as demonstrating 

[JDCC’s] animus towards workers’ 

compensation claims.

¶10 The district court granted JDCC’s motion for summary 

judgment, concluding that “[i]n analyzing the admissible facts 

and law in this case, . . . the record before this Court is 

insufficient for a jury to conclude that [Medina] could meet the 

‘substantial factor’ requirement under Utah law based upon the 

 

(...continued)

injury with management or coworkers; that he did not “show up 

to work” on certain days, see supra ¶ 5 & note 2; that he never 

informed Supervisor or Dumas of the reason for his week-long 

absence in July; that he never informed Supervisor or Dumas of 

the reason for his July 16 absence; and that JDCC terminated him 

for repeatedly missing work. As discussed in note 1, we view the 

facts of the case in the light most favorable to Medina in 

resolving this appeal.
Medina v. Dumas

20190654-CA 7 2020 UT App 166

facts advanced by [Medina] in opposition to the present 

motion.” Specifically, the court stated that Medina “may not rely 

on [each of the five facts] to support the required causal nexus 

for his claim” because (a) “mere knowledge of a workers’ 

compensation claim is insufficient under Utah law to meet the 

‘substantial factor’ requirement” and “the fact that there was a 

nearly nine-month interval between his claim filing and his 

termination shows the temporal disconnect”; (b) the fact that 

JDCC terminated Medina during his deposition “does not 

establish that [Medina] was terminated because of his workers’ 

compensation claim” and “[t]he fact that there was nearly a 

nine-month interval between his claim filing and his termination 

shows the temporal disconnect”; (c) “[JDCC’s] silence after being 

sent a letter from [Medina’s] counsel following [Medina’s] firing 

during his deposition has no probative value and does not 

preponderate in favor of establishing that [Medina’s] claim was 

a ‘substantial factor’ in [JDCC’s] motivation to terminate him”; 

(d) JDCC’s answer alleging that Medina fabricated the incident 

that caused his initial injury “was made months following 

[Medina’s] termination and after [Medina] had sued [JDCC] for 

wrongful termination and does not preponderate in favor of 

support of [JDCC’s] improper motivation or state of mind at the 

time of [Medina’s] termination”; and (e) JDCC’s “ambiguous 

statement” to “‘Get off the job site’” does not “show [JDCC’s] 

alleged animus towards [Medina] for having a workers’ 

compensation claim.”6 Additionally, relying on Gordon v. Home 

Depot U.S.A., Inc., 191 F. Supp. 3d 1271 (D. Utah 2016), the court 

stated that “[t]he multi-month delay between [Medina’s] 

workers’ compensation filing and his termination is inconsistent 

with [his] claims.” 

 

6. The district court did not explain its rationale for this last 

conclusion. Perhaps the court viewed the statement as a toss-up 

in terms of whether it was a sensible instruction for an injured 

employee, lest he remain on-site and worsen the injury, or 

whether it was a mean-spirited or unempathetic directive.
Medina v. Dumas

20190654-CA 8 2020 UT App 166

¶11 Medina appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Medina challenges the district court’s grant of JDCC’s 

motion for summary judgment, specifically the court’s

determination that he presented insufficient evidence to satisfy 

the substantial factor test. “We review a trial court’s legal 

conclusions and ultimate grant or denial of summary judgment 

for correctness, viewing the facts and all reasonable inferences 

drawn therefrom in the light most favorable to the nonmoving 

party.”7 Heartwood Home Health & Hospice LLC v. Huber, 2020 UT 

 

7. JDCC argues that because “[d]istrict courts have wide latitude 

in making determinations of relevance, probative value, and 

prejudice of evidence,” we should review the court’s evidentiary 

determination for an abuse of discretion. JDCC further contends 

that Medina waived his challenge to the court’s summary 

judgment order because his “appeal overlooks the crux of the 

court’s decision—none of the evidence relied on to support his 

claim is admissible” under the Utah Rules of Evidence “either 

because [the facts] are irrelevant under rule 401 or because they 

are too speculative under rule 403.”

 We disagree with JDCC’s characterization of the court’s 

summary judgment order as consisting of rulings on 

admissibility under the Utah Rules of Evidence. Before 

discussing the five relevant facts, the court specifically stated, 

with our emphasis, that “[i]n analyzing the admissible facts and 

law in this case, [it] concludes that the record before [it] is 

insufficient for a jury to conclude that [Medina] could meet the 

‘substantial factor’ requirement under Utah law based upon the 

facts advanced by [Medina].” And following its analysis of the 

facts, the court concluded by stating, with our emphasis, that 

“based upon [its] analysis of the evidence submitted by [Medina] 

to resist [JDCC’s] Motion for Summary Judgment, . . . the Court 

concludes that the admissible evidence submitted by [Medina] is 

(continued...)
Medina v. Dumas

20190654-CA 9 2020 UT App 166

App 13, ¶ 11, 459 P.3d 1060 (quotation simplified). See also Giles 

v. Mineral Res. Int’l, Inc., 2014 UT App 259, ¶ 6, 338 P.3d 825 

(reviewing, for correctness, the district court’s determination 

that the appellant provided insufficient evidence to withstand

summary judgment).

ANALYSIS

¶13 Under Utah law, an employer may terminate an at-will 

employee “for any reason (or no reason) except where 

prohibited by law.” Touchard v. La-Z-Boy Inc., 2006 UT 71, ¶ 3, 

148 P.3d 945 (quotation simplified). The decision to discharge an 

at-will employee is therefore presumed valid, but that

presumption may be overcome if, among other things, “the 

termination of employment constitutes a violation of a clear and 

substantial public policy.” Id. (quotation simplified). The 

discharge of an employee in retaliation for seeking workers’ 

compensation benefits under Utah’s Workers’ Compensation 

Act is one such violation of public policy. Id. ¶ 48.

 

(...continued)

at best ambiguous, and lacking in sufficient probative value.” 

Although the court did later muddy the waters a bit, as JDCC 

points out, by stating that “none of [Medina’s] five alleged facts 

provides admissible support,” because the court never invoked 

the rules of evidence and given the larger context of the court’s 

discussion of each fact on which Medina relied, we interpret the 

order as discussing whether the facts were sufficient to satisfy 

Medina’s burden of proof under the substantial factor test, and 

any discussion of their relevance was limited to that context. 

Indeed, absent a thorough analysis of the remaining elements of 

a wrongful termination claim, which the court did not undertake 

here, such a determination would be inappropriate because 

evidence that is irrelevant to one element of the claim might 

prove relevant—and therefore admissible—as to another.
Medina v. Dumas

20190654-CA 10 2020 UT App 166

¶14 To prevail on a claim of wrongful termination on the 

ground that it violated public policy, an employee must first 

establish a prima facie case by showing “(i) that his employer 

terminated him; (ii) that a clear and substantial public policy 

existed; (iii) that the employee’s conduct brought the policy into 

play; and (iv) that the discharge and the conduct bringing the 

policy into play are causally connected,” i.e., “that the conduct 

bringing the public policy into play ‘was a cause of the firing.’”

Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395, 404 (Utah 1998)

(emphasis in original) (footnote omitted) (quoting Wilmot v. 

Kaiser Aluminum & Chem. Corp., 821 P.2d 18, 28–29 (Wash. 1991)). 

Upon such a showing by an employee, the burden then shifts to 

the employer to articulate and produce admissible evidence of a 

legitimate reason for the termination. Id. at 405 & n.5. Lastly, 

“[w]hen faced with evidence of a legitimate reason for 

termination, the employee must prove” by a preponderance of 

the evidence “that engaging in the protected conduct was a 

‘substantial factor’ in the employer’s motivation to discharge the 

employee.” Id. at 405, 409 (quoting Wilmot, 821 P.2d at 30).

¶15 Here, the district court presumed, “[f]or purposes of this 

motion only,” that Medina provided sufficient evidence to 

establish a prima facie case of wrongful termination, thereby 

shifting the burden to JDCC to articulate and support with

evidence a legitimate reason for terminating Medina. The court

then concluded that JDCC’s articulated reason for “terminating 

[Medina] for chronically missing work, culminating in a missed 

week of work in July 201[8], all to the detriment of JDCC,”

satisfied this burden.8 As a result, the burden then shifted back 

to Medina to establish that his filing for workers’ compensation 

 

8. Our resolution of this appeal does not necessitate that we 

address whether an employer may fire an employee for absences 

caused by a work-related injury that forms the basis for a 

workers’ compensation claim. See Wilmot v. Kaiser Aluminum 

& Chem. Corp., 821 P.2d 18, 31–32 (Wash. 1991) (discussing the 

jurisdictional split on this question).
Medina v. Dumas

20190654-CA 11 2020 UT App 166

benefits was a substantial factor in JDCC’s decision to fire him.

Following an analysis of Medina’s evidence in support of this 

contention, the court concluded that Medina “failed to meet his 

burden in introducing evidence that would create a genuine 

issue of material fact as to whether his workers’ compensation 

claim was a ‘substantial factor’ in motivating his firing so as to 

defeat summary judgment.” Accordingly, we limit our analysis 

to whether Medina presented sufficient evidence to demonstrate 

a dispute of material fact relevant to his ability to meet the 

substantial factor test.

¶16 Utah appellate courts have yet to address the substantial

factor prong of the wrongful termination analysis in any 

meaningful detail other than to note that it “is an inquiry that 

defies precise definition.” See id. at 410. But as an initial matter, it 

clearly presents a higher burden than the fourth element of the 

prima facie case, which merely requires that the employee 

“show only that the conduct bringing the public policy into play 

was a cause of the firing.” Id. at 405 (emphasis in original) 

(quotation otherwise simplified). Otherwise, the employee’s 

satisfaction of the prima facie case would automatically satisfy 

the substantial factor test, rendering it superfluous. 

¶17 Additionally, under the plain meaning of the term 

“substantial,” the employee must show that his or her 

engagement in the protected activity carried considerable—as 

opposed to negligible—weight in the employer’s decision to 

terminate the employee. See Substantial, New Oxford American 

Dictionary 1736 (3d ed. 2010) (defining “substantial” as “of 

considerable importance, size, or worth”); Jean C. Love, 

Retaliatory Discharge for Filing a Workers’ Compensation Claim: The 

Development of a Modern Tort Action, 37 Hastings L.J. 551, 571 

(1986) (“Under the ‘substantial’ or ‘significant’ factor test, the 

plaintiff must prove that retaliation was an important factor 

motivating the discharge.”).

¶18 This reading of “substantial” is further supported by the 

definition of the term in other legal contexts. In discussing the 
Medina v. Dumas

20190654-CA 12 2020 UT App 166

substantial factor test as applied to the tort of negligence, the 

Second Restatement of Torts states,

The word “substantial” is used to denote the fact 

that the defendant’s conduct has such an effect in 

producing the harm as to lead reasonable men to 

regard it as a cause, using that word in the popular 

sense, in which there always lurks the idea of 

responsibility, rather than in the so-called 

“philosophic sense,” which includes every one of 

the great number of events without which any 

happening would not have occurred. 

Gardner v. Gardner, 2019 UT 61, ¶ 24, 452 P.3d 1134 (emphasis in 

original) (quoting Restatement (Second) of Torts § 431 cmt. a 

(Am. Law Inst. 1965)). See also Substantial-cause test, Black’s Law 

Dictionary 1657 (10th ed. 2014) (defining the “substantial-cause 

test” as “[t]he principle that causation exists when the 

defendant’s conduct is an important or significant contributor to 

the plaintiff’s injuries”). And in defining the term “substantially 

contributed” in the divorce context,9 our Supreme Court, relying 

on the plain meaning of the word “substantial” and the Second 

Restatement of Torts’ definition, concluded that it related to 

“conduct that was a significant or an important cause of the 

divorce.” Gardner, 2019 UT 61, ¶¶ 22, 24, 27.

¶19 On the other hand, the employee’s burden under the 

substantial factor test is not so high that it requires the employee 

to establish that retaliation was the sole motivation for 

termination or that the employer would not have terminated the 

employee but for the fact that the employee engaged in 

 

9. See Utah Code Ann. § 30-3-5(9)(c) (LexisNexis Supp. 2020) 

(defining “Fault” as “any of the following wrongful conduct 

during the marriage that substantially contributed to the breakup 

of the marriage relationship”) (emphasis added).
Medina v. Dumas

20190654-CA 13 2020 UT App 166

protected activity. In other words, the employee need not prove 

that absent the employee’s engagement in protected activity, the 

employer would not have discharged him or her for the 

legitimate reason the employer asserts in litigation. See Wallace v. 

Milliken & Co., 389 S.E.2d 448, 450 (S.C. Ct. App. 1990) (stating 

that under the substantial factor test, “the claimant must 

establish that retaliation was an important factor motivating his 

discharge” but “need not show that the employer discharged 

him ‘solely’ because of the workers’ compensation claim”); 

Hollenback v. Shriners Hosps. for Children, 206 P.3d 337, 344 (Wash. 

Ct. App. 2009) (“The plaintiff need not show that retaliation was 

the only or ‘but for’ cause of the adverse employment action, but 

he or she must establish that it was at least a substantial factor.”) 

(quotation simplified). Cf. Gardner, 2019 UT 61, ¶ 22 (“Under the 

plain meaning of the term ‘substantially contributed,’ the 

conduct at issue . . . does not have to be the first cause, or the 

only cause.”). Thus, an employee may prevail on an unlawful 

termination claim if the employer fired the employee for 

multiple reasons, including the employee’s engagement in 

protected activity—but not where the protected activity, 

although perhaps a reason for termination, did not ultimately 

play an important role in the employer’s decision to fire the 

employee.

¶20 Turning now to the case at hand, we must determine 

whether Medina presented sufficient evidence to avoid

summary judgment on the substantial factor test—a different 

inquiry than whether he presented sufficient evidence to prove 

he was entitled to prevail on his wrongful termination claim.

Summary judgment is appropriate only where “there is no 

genuine dispute as to any material fact and the moving party is 

entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). In 

determining whether a genuine issue of material fact exists, we 

ask “whether reasonable jurors, properly instructed, would be 

able to come to only one conclusion, or if they might come to 

different conclusions, thereby making summary judgment 

inappropriate.” Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, 

¶ 20, 390 P.3d 314 (quotation simplified). 
Medina v. Dumas

20190654-CA 14 2020 UT App 166

¶21 In opposing summary judgment, Medina was entitled to 

rely on circumstantial evidence to establish that his filing for

workers’ compensation benefits was a substantial factor in 

JDCC’s decision to terminate him. See USA Power, LLC v. 

PacifiCorp, 2010 UT 31, ¶ 65, 235 P.3d 749 (“[I]nferences drawn 

from circumstantial evidence . . . may create a genuine issue of 

material fact.”). See also Wallace, 389 S.E.2d at 450 (“Because it is 

highly unlikely that an employer will declare retaliation as the 

motive for discharge, the claimant must ordinarily rely on 

circumstantial evidence.”); Hollenback, 206 P.3d at 344 (“Because 

employers rarely will reveal they are motivated by retaliation, 

plaintiffs ordinarily must resort to circumstantial evidence to 

demonstrate retaliatory purpose.”) (quotation simplified). And 

in viewing the proffered evidence, we draw “all reasonable 

inferences in favor of the nonmoving party.” Heslop, 2017 UT 5, 

¶ 21 (quotation simplified). Of course, “to be reasonable, the 

inference must present something more than pure speculation.” 

Id. In other words, an inference is unreasonable if “there is no 

underlying evidence to support the conclusion.” Id. ¶ 22

(quotation simplified). See IHC Health Services, Inc. v. D & K 

Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588 (“The word ‘genuine’ 

indicates that a district court is not required to draw every 

possible inference of fact, no matter how remote or improbable, 

in favor of the nonmoving party. Instead, it is required to draw 

all reasonable inferences in favor of the nonmoving party.”)

(emphasis in original).

¶22 Here, Medina’s theory of liability is that JDCC discharged 

him “in retaliation for a perceived fraudulent workers 

compensation claim.” In the district court, Medina offered five 

facts in support of his contention that his filing for workers’ 

compensation benefits was a substantial factor in JDCC’s 

decision to terminate him. But on appeal, Medina advances only 

four of those five facts: that JDCC did not revoke Medina’s 

termination after his attorney alerted it to the questionable 

timing; that Medina was told to “Get off the job site” when he 

notified management of the aggravation to his injury; that JDCC 

stated in its answer that Medina fabricated JDCC’s connection to 
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20190654-CA 15 2020 UT App 166

his injury; and that JDCC terminated Medina during his 

deposition. Accordingly, we address only those four facts and 

conclude that three of the four facts were sufficiently shown to 

satisfy the substantial factor test for purposes of avoiding

summary judgment.

¶23 We agree with the district court that JDCC’s non-response 

to the email Medina’s counsel sent notifying JDCC that it 

terminated Medina during his deposition does not support 

Medina’s argument. Medina contends that this fact is 

“probative of the question whether JDCC fired [him] without 

knowing that he was exercising his workers compensation 

rights.” But the court already accepted as undisputed the fact 

that Medina had informed Supervisor that he would be missing 

work on July 16, 2018, to attend his deposition. And in any 

event, for purposes of summary judgment, we presume that 

JDCC had knowledge of the deposition when it discharged 

Medina. See infra note 10. 

¶24 Conversely, we agree with Medina that, for purposes of 

resisting summary judgment, the remaining facts he relies on are 

sufficient to satisfy the substantial factor inquiry. First, JDCC’s 

statement to Medina after he reported the aggravation of his 

injury to “Get off the job site right now if you are injured” could, 

in certain contexts, be evidence of JDCC’s animus toward 

workers’ compensation claims. JDCC argues that the statement 

“can be subject to several interpretations.” For example, JDCC 

suggests that the speaker “might have cared a great deal for 

Medina and wanted him to seek treatment immediately if he 

was injured.” We agree that, at trial, the factfinder might 

reasonably infer this intent behind the statement. But at the 

summary judgment stage, we view “all reasonable inferences 

drawn [from the facts] in the light most favorable to the 

nonmoving party.” Heartwood Home Health & Hospice LLC v. 

Huber, 2020 UT App 13, ¶ 11, 459 P.3d 1060 (quotation 

simplified). Accordingly, because it is also reasonable to infer 

that the speaker made the statement out of frustration at the 

prospect of a forthcoming workers’ compensation claim, we 
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20190654-CA 16 2020 UT App 166

presume this was the case for purposes of our analysis. And 

such frustration is certainly probative of JDCC’s attitude 

toward its employees seeking workers’ compensation benefits 

and possible motivation for terminating Medina for doing 

just that.

¶25 Second, JDCC’s belief that Medina fabricated his 

account of being injured while working for JDCC is relevant 

to Medina’s contention that JDCC fired him “in retaliation for 

a perceived fraudulent workers compensation claim.” The 

district court determined that JDCC’s statement in its 

answer that “‘the purported incident never occurred and 

was wholly fabricated by [Medina]’ . . . does not preponderate 

in favor of [Medina]” because the statement was made 

months after JDCC discharged Medina and therefore did not 

“preponderate in favor or support of [JDCC’s] improper 

motivation or state of mind at the time of [Medina’s] 

termination.” We disagree. Although JDCC’s answer is not 

direct evidence of its suspicion that Medina fabricated the 

incident that caused his injury, it is circumstantial evidence, and 

for purposes of summary judgment, the statements in its 

answer are properly treated as admissions where evidence 

has not been presented to contradict the pleading. See Utah R. 

Civ. P. 56(c)(1)(A); Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439.

JDCC made the statement only three months after it 

terminated Medina. Given the relatively short temporal 

disconnect between the two events, the jury might

reasonably infer JDCC’s retaliatory intent at the time it fired 

Medina. And in the absence of affidavits or other sworn 

statements contending the contrary, Medina was entitled to rely 

on JDCC’s answer.

¶26 Finally, the fact that JDCC terminated Medina during his 

deposition in his workers’ compensation case supports an 

inference that it had done so in retaliation for his filing and 

pursuing a workers’ compensation claim. For summary 

judgment purposes, we assume that JDCC knew, or at least is 

chargeable with knowing, that Medina was being deposed that 
Medina v. Dumas

20190654-CA 17 2020 UT App 166

day.10 The record reflects JDCC’s frustration with Medina’s 

continued absences from work—at least many of which Medina 

attributed to his injury. And given this frustration, it is not 

unreasonable to infer that Medina missing work to attend a 

deposition in a case that JDCC allegedly believed to be 

 

10. The parties disagree on whether JDCC knew that Medina 

was being deposed that day. JDCC contends that there is no 

evidence “that [it] received notice of the deposition” or “that the 

WCFU attorney informed JDCC of the deposition,” and “it is 

undisputed that the notice of the deposition was mailed to the 

wrong address.” In contrast, Medina stated in his affidavit that 

he “told [Supervisor] that [he] needed time off on July 16, 2018 to 

attend [his] deposition.” JDCC contends that we should 

disregard Medina’s sworn statement because he “has offered no 

evidence to support his declaration” and “Medina’s statements 

seem to be contradicted by the text messages between Medina 

and [Supervisor].”

 As an initial matter, Medina did not state whether he told 

Supervisor about the deposition by text message or in some 

other way. Thus, the absence of a text about the deposition does 

not, without more, contradict Medina’s claim. And in any event, 

“a single sworn statement is sufficient to create an issue of fact” 

although the “affidavit must do more than reflect the affiant’s 

opinions and conclusions.” Heslop v. Bear River Mutual Ins. Co., 

2017 UT 5, ¶ 23, 390 P.3d 314 (quotation simplified). See also Utah 

R. Civ. P. 56(c)(4); Wasatch Oil & Gas, LLC v. Reott, 2007 UT App 

223, ¶ 35, 163 P.3d 713 (“On summary judgment, the trial court 

must not weigh evidence or assess credibility.”) (quotation 

simplified). Here, Medina’s affidavit stated that he informed 

Supervisor of his scheduled deposition. And while Supervisor, 

in his own affidavit, denied that Medina informed him of the 

deposition, “at the summary judgment phase we must view the 

facts in the light most favorable to [the nonmoving party].” 

Cochegrus v. Herriman City, 2020 UT 14, ¶ 32, 462 P.3d 357. Thus, 

in reviewing the court’s summary judgment ruling, we must 

assume that Medina informed Supervisor of the deposition.
Medina v. Dumas

20190654-CA 18 2020 UT App 166

fraudulent might have been the straw that broke the camel’s 

back, causing JDCC to terminate his employment then and there.

Although JDCC might not have terminated Medina based solely 

on his workers’ compensation claim and his absence from work 

to attend the deposition, under this scenario it would have 

played a sufficiently important role to satisfy the substantial 

factor test, thereby precluding summary judgment in JDCC’s 

favor.

¶27 JDCC also contends that, “considering all the undisputed 

facts, no reasonable juror could conclude that Medina was fired 

for pursuing a workers’ compensation claim because it is 

equally, if not more likely, that he was fired for too many 

absences.” But this argument reflects a misunderstanding of the 

substantial factor test. JDCC apparently assumes that the 

employee must establish that the engagement in protected 

activity was the sole or primary reason for the termination. But 

as discussed above, the substantial factor test requires only that 

the protected activity be an important factor in the decision to 

discharge the employee, even though there might have been 

other, legitimate reasons for the termination. See supra ¶¶ 16–19. 

¶28 Citing Gordon v. Home Depot U.S.A., Inc., 191 F. Supp. 3d 

1271 (D. Utah 2016), a federal trial court decision, JDCC also 

argues that “there is a temporal disconnect between Medina’s 

filing for workers’ compensation benefits which severs any 

apparent causal connection.” But a lapse of time between the 

protected activity and the employer’s adverse action—even a

significant lapse—while relevant, is insufficient by itself to 

preclude satisfaction of the substantial factor test. See 

Restatement (Second) of Torts § 433 & cmt. f (Am. Law Inst. 

1965) (“[W]here it is evident that the influence of the actor’s 

negligence is still a substantial factor, mere lapse of time, no 

matter how long, is not sufficient to prevent it from being the 

legal cause of the other’s harm”). Thus, although “[o]ne factor 

supporting a retaliatory motive is a close proximity in time 

between the protected activity and the employment action,”

Hollenback v. Shriners Hosps. for Children, 206 P.3d 337, 344 (Wash. 
Medina v. Dumas

20190654-CA 19 2020 UT App 166

Ct. App. 2009), the employer may not necessarily be able to rely 

on the reverse to obtain summary judgment. This is especially 

true in this case where, although there was a gap of many

months between Medina’s first report of his injury and his 

termination, there was no gap between his missing work for his 

workers’ compensation deposition and his termination.

¶29 In Gordon, there was nearly a two-year time lapse between 

the employee’s filing for workers’ compensation benefits and his 

termination. 191 F. Supp. 3d at 1281. Based on this, the court 

ruled that the employee’s wrongful termination claim failed to 

withstand summary judgment partially because “there is a 

temporal disconnect between the protected activity and [the 

employee’s] termination.” Id. But this statement was coupled 

with the court’s determination that the employee had not 

provided evidence upon which he could rely to establish that his 

filing for workers’ compensation was a cause of his termination.

Id. at 1280–81. The court held, based on the fact that the 

employee had received negative performance reviews in two 

categories of customer service months prior to his underlying 

injury, that the negative reviews he obtained following his injury 

did not “evidence a pattern of hostility that connects [the 

employee’s] discharge to his workers’ compensation claims.” Id.

at 1281. The court also determined that the employee could not 

rely on the fact that he was disciplined for committing an act he 

characterized as “negligible,” because he “provided no evidence 

to support that characterization.” Id. The court determined that 

the employee could not rely on the fact that he was not 

disciplined for making a racially insensitive comment to a 

coworker until after he had been injured for a second time 

because the employer’s investigation of the incident had begun 

prior to that injury and the employee “ha[d] not provided the 

court with any evidence to suggest that any other associate 

would have been treated more favorably for engaging in the 

same behavior.” Id. at 1281–82. Finally, the employee could not 

rely on his assertion that the employer encouraged its managers 

to disincentivize employees from filing for workers’ 
Medina v. Dumas

20190654-CA 20 2020 UT App 166

compensation because he again “failed to provide sufficient 

evidence to establish such a connection.” Id. at 1282.

¶30 Here, Medina was initially injured in August 2017, but it 

was not until October 2017, after he aggravated this injury, that 

he sought benefits from WCFU. After WCFU denied further 

treatment “based on a pre-existing pathology in [Medina’s] 

back,” he filed his workers’ compensation claim with the Utah 

Labor Commission in March 2018. JDCC terminated Medina that 

July—nine months after he sought benefits from WCFU but only 

four months after he filed a claim with the Utah Labor 

Commission. This temporal gap is significantly smaller than that 

in Gordon. But more importantly, unlike in Gordon, there is 

evidence on which Medina may rely in support of the inference

that his filing for workers’ compensation played a substantial 

role in JDCC’s decision to discharge him. Accordingly, the 

temporal disconnect alone, regardless of duration, is insufficient 

to entitle JDCC to summary judgment.

CONCLUSION

¶31 Because Medina presented sufficient circumstantial 

evidence to support reasonable inferences that would satisfy the 

substantial factor test if believed by the ultimate factfinder, the 

district court erred in granting summary judgment to JDCC. We 

reverse and remand for trial or such other proceedings as may 

now be in order.

11

 

11. Because Medina prevails on appeal, we deny JDCC’s request 

for attorney fees, premised on rule 33 of the Utah Rules of 

Appellate Procedure. See Utah R. App. P. 33(a). We also deny 

JDCC’s request that Medina cover the cost of the transcript of the 

summary judgment hearing that it wanted in the record. See id.

R. 12(a)(2).