Beard v. Brinks Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 22-cv-1850-WJM-SBP
ASHLEY BEARD,
Plaintiff,
v.
BRINK’S INC.,
Defendant.
ORDER OVERRULING OBJECTION AND
ADOPTING RECOMMENDATION IN FULL
Before the Court is Defendant Brink’s Inc.’s (“Defendant”) objection (ECF No.
112) to United States Magistrate Judge Susan Prose’s recommendation
(“Recommendation”) (ECF No. 102) that the Court grant in part and deny in part its
motion for summary judgment (ECF No. 76). Plaintiff Ashley Beard (“Plaintiff”) filed a
response to Defendant’s objection but did not file an objection of her own to the
Recommendation. (ECF No. 115.)
For the following reasons, the Court overrules Defendant’s objection and adopts
the Recommendation in full.
I. PERTINENT BACKGROUND
The parties are familiar with the pertinent background of this case from, among
other sources, the Recommendation. (ECF No. 102 at 2–9.) Noting that neither party
disputes the facts listed therein, the Court incorporates that background here and adds
the following pertinent facts.
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Plaintiff asserts claims against Defendant under the Americans with Disabilities
Act (“ADA”) and Title VII of the Civil Rights Act of 1964. (Id. at 8.) Specifically, she
asserts claims of failure to accommodate, discrimination, hostile work environment, and
retaliation under the ADA, and racial discrimination under Title VII. (Id.) The
Recommendation states that the Court should grant Defendant’s summary judgment
motion with respect to the hostile work environment, retaliation, and racial discrimination
claims, and deny the motion with respect to the failure to accommodate and
discrimination claims. (See generally id.) The Recommendation also states that the
Court should deny Plaintiff’s cross summary judgment motion with respect to all these
claims. (Id. at 28.)
Since Plaintiff, now represented by counsel,1 did not file an objection to the
Recommendation, the Court may adopt the unobjected-to portions of the
Recommendation if it is satisfied that there is no clear error on the face of the record.
Henard v. Albers, 2024 WL 1858501, at *4 (D. Colo. Apr. 29, 2024) (citing Summers v.
State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)). Seeing no clear error, the Court
adopts those portions of the Recommendation, leaving only Plaintiff’s failure to
accommodate and discrimination claims intact.
Defendant objects to the Recommendation insofar as it denies summary
judgment as to the failure to accommodate and discrimination claims. (See generally
ECF No. 112.) As to the failure to accommodate claim, the Recommendation
concluded that Plaintiff made a prima facie showing of the claim’s elements—that is,
Plaintiff (1) was disabled, (2) was otherwise qualified, (3) requested a reasonable
1 Plaintiff proceeded pro se at the summary judgment stage of this action.
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accommodation, and (4) was denied the accommodation. (Id. at 14–22 (citing Aubrey
v. Koppes, 975 F.3d 995, 1005 (10th Cir. 2020).) Defendant focuses only on the third
element, arguing that Plaintiff did not request any accommodation nor engage in the
interactive process as required under pertinent caselaw. (ECF No. 112 at 7.) On these
scores, the Recommendation found that “the facts in the record here would allow a jury
to conclude that Ms. Beard asked Brink’s for a reasonable accommodation in the form
of delaying her return to work a mere eight days—from June 7 to June 15, 2021—until
she could confer with her workers’ compensation physician about an accommodation
that would allow her to resume work at Brink’s.” (ECF No. 102 at 19.) The
Recommendation further found that, while Plaintiff “shares some blame for the
interactive process stalling out,” the record nonetheless supports her position that “the
interactive process broke down when Brink’s insisted that Ms. Beard return to work on
June 7, 2021.” (Id. at 20.)
The Recommendation also concluded that Plaintiff made a prima facie showing
of the elements of her disability discrimination claim—that is, Plaintiff was (1) disabled,
(2) otherwise qualified, and (3) discriminated against because of her disability. (Id. at 22
(citing Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1192 (10th Cir. 2018).) Specifically, the
Recommendation found that the record supports Plaintiff’s position that Defendant
discriminated against her by failing to accommodate her disability and that Defendant’s
reasons for not accommodating her were pretextual. (Id. at 22–25.) Defendant again
focuses only on the third element, arguing that the Recommendation erred as a matter
of law by concluding that its alleged failure to accommodate Plaintiff’s disability qualifies
as discrimination under the ADA. (ECF No. 112 at 8 (“[T]he Recommendation’s
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conclusion that Beard satisfied the adverse action prong of her disability discrimination
claim based on Brink’s alleged failure to accommodate Beard is erroneous as a matter
of law.”).) Defendant also argues that “the summary judgment record is utterly devoid of
evidence of pretext.” (Id. at 8–9.)
II. STANDARD OF REVIEW
Where, as here, a magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires the district judge to “determine
de novo any part of the magistrate judge's [recommendation] that has been properly
objected to.” Henard, 2024 WL 1858501, at *4 (quoting Fed. R. Civ. P. 73(b)(3)). An
objection to a recommendation is properly made if it is both timely and specific. United
States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is
sufficiently specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties' dispute.” Id. In conducting its
review, “[t]he district court judge may accept, reject, or modify the recommendation;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Id.
Because Defendant adequately objects to the Recommendation’s conclusions
that summary judgment is not appropriate on Plaintiff’s failure to accommodate and
disability discrimination claims, the Court reviews those conclusions de novo.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “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); see also Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, courts must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, courts
must resolve factual ambiguities against the moving party, thus favoring the right to a
trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
IV. ANALYSIS
A. 	Failure to Accommodate
Defendant contends that the Recommendation erred by concluding that Plaintiff
made a prima facie showing as to the third element of her failure to accommodate
claim—i.e., that she requested a reasonable accommodation and engaged in the
interactive process. (ECF No. 112 at 2.) The Court discerns no error.
“The ADA prohibits a ‘covered entity’ from discriminating ‘against a qualified
individual on the basis of disability 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.’” Aubrey, 975 F.3d at 1005
(quoting 42 U.S.C.A. § 12112(a)). “The ADA defines ‘discriminate against a qualified
individual on the basis of disability’ to include ‘not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
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disability . . . unless [the employer] can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of [the employer].” Aubrey,
975 F.3d at 1005.
As mentioned, “there are generally four elements” a plaintiff must “show to
establish a prima facie failure-to-accommodate claim: (1) she was disabled, (2) she was
otherwise qualified, (3) she requested a plausibly reasonable accommodation, and (4)
the [defendant] refused to accommodate her disability.” Id.; Herrick v. Vail Corp., 2024
WL 4360502, at *4 (10th Cir. Oct. 1, 2024). The Tenth Circuit has said that
“[e]stablishing a prima facie claim is not onerous.” Aubrey, 975 F.3d at 1005 (citing
Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1266 (10th Cir. 2015)).
If the plaintiff establishes these elements, the burden shifts to the defendant “to
present evidence either (1) conclusively rebutting one or more elements of plaintiff's
prima facie case or (2) establishing an affirmative defense, such as undue hardship or
one of the other affirmative defenses available to the employer.”2 Lincoln, 900 F.3d at
1204 (internal quotation marks omitted). A reasonable accommodation claim is not
designed to “probe the subjective intent of the employer” but instead to “determine
whether the various parties have advanced sufficient evidence to meet their respective
traditional burdens to prove or disprove the reasonableness of the accommodations
offered or not offered.” Smith v. Midland Brake, Inc., 180 F.3d 1154, 1179 n.12 (10th
Cir. 1999) (en banc); see also Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir.
2017).
2 Defendant does not argue in the objection that it satisfied either of these elements.
(See generally ECF No. 112.)
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A reasonable accommodation is one that “presently, or in the near future,
enable[s] the employee to perform the essential functions of h[er] job.” Davis v. PHK
Staffing LLC, 2023 WL 8757073, at *3 (10th Cir. Dec. 19, 2023) (citation omitted). “The
determination of whether a requested accommodation is reasonable must be made on
the facts of each case taking into consideration the particular individual's disability and
employment position.” Punt, 862 F.3d at 1050 (internal quotation marks omitted).
Applying these principles, the Court adopts the Recommendation’s view that
Plaintiff’s request to return to work after June 15, 2021—on which date Plaintiff was
scheduled to meet with her doctor and discuss potential work restrictions—was a
request for a reasonable accommodation. (ECF No. 102 at 6, 19.) “It is well-settled
that a request for leave may lead to a ‘reasonable’ accommodation.” Id. at 1051. And
the Tenth Circuit has concluded that a request for more time to meet with a doctor to
discuss potential work restrictions is an accommodation request in itself. See Aubrey,
975 F.3d at 1011 (concluding that the plaintiff’s “request in mid-April for some additional
time to gather updated medical information as to when her doctors would release her to
return to work was a plausible reasonable accommodation”).
Defendant does not address this applicable law and instead stresses that Plaintiff
“never submitted any accommodation requests in response to [its] overtures.” (ECF No.
112 at 5.) While it is true that Plaintiff did not supply Defendant with a list of specific
accommodations before Defendant scheduled her to work on June 7, 2021, this fact is
inapposite because Plaintiff’s request for more time to confer with her doctor was itself
an accommodation request. Compare Freeman v. City of Cheyenne, 2024 WL 464069,
at *3 (10th Cir. Feb. 7, 2024) (“We may assume Freeman's request for additional leave
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was sufficient to trigger the City's responsibility to engage in the interactive process . . .
.”) with Hurt v. Sch. Dist. No. 1 in Cnty. of Denver, Colorado, 664 F. Supp. 3d 1227,
1240 (D. Colo. 2023) (granting summary judgment for defendant where plaintiff did not
ask for more time to ask for a reasonable accommodation but instead refused “to
provide the documentation needed for her requested accommodation”) and Mares v.
Colorado Coal. For Homeless, 2021 WL 5811232 (10th Cir. Dec. 7, 2021) (affirming
summary judgment where plaintiff did not “initiate any communications” about her
medical information). Thus, the Court adopts the Recommendation’s view that Plaintiff
made a prima facie showing that she requested a reasonable accommodation.
This accommodation request, which the Court concludes was reasonable (over
no objection from Defendant), “triggered the requirement that Brink’s engage in the
interactive process contemplated by the ADA.” (ECF No. 102 at 19.) The interactive
process requires both parties “to engage in good faith” to determine a plaintiff’s
limitations and consider whether the requested accommodations would enable the
plaintiff to return to work. Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1315–16 (10th Cir.
2017); see also Smith, 180 F.3d at 1172 (“The interactive process is typically an
essential component of the process by which a reasonable accommodation can be
determined.”).
“While ‘[t]he exact shape of this interactive dialogue will necessarily vary from
situation to situation and no rules of universal application can be articulated[,]’ ‘[t]he
interactive process [necessarily] includes good-faith communications between the
employer and employee.’” Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir.
2004) (quoting Smith, 180 F.3d at 1172–73). “This is imperative because each side will
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possess different information, all of which is critical to determining whether there is a
reasonable accommodation that might permit the disabled employee to perform the
essential functions of her job.” Id.
The Recommendation concluded that “a jury could find that Brink’s failed to
engage in an interactive process with Ms. Beard to determine if there was a reasonable
accommodation that would have enabled her to perform the essential functions of a job
at Brink’s.” (Id. at 20.) The Recommendation reasoned that the evidence could be
construed to show that “the interactive process broke down when Brink’s insisted that
Ms. Beard return to work on June 7, 2021—disregarding her request to defer her return-
to-work date for a few days until she could see her physician and present to Brink’s
specific information concerning what tasks she could perform and what
accommodations she would need to perform them.” (Id.)
Defendant disagrees with this characterization of the evidence, insisting that
“Beard caused the breakdown in the interactive process.” (ECF No. 112 at 7.) In
support, it asserts that, after Plaintiff requested time to meet with her doctor on June 15,
2021, and failed to report for work on June 7, 2021, Defendant nevertheless reached
out to Plaintiff three times thereafter on June 30, July 6, and July 22, 2021, “asking her
to submit any accommodation requests she wished Brink’s to consider.” (Id. at 5.)
Defendant also points out that it did not terminate Plaintiff’s employment “until over two
years later (at her request).” (Id.) (emphasis omitted).
In the Court’s view, Defendant presents strong evidence refuting the notion that it
caused the interactive process to break down. The Recommendation acknowledged as
much. (ECF No. 102 at 20 (recognizing that Plaintiff “shares some blame for the
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interactive process stalling out”).) But, as the Recommendation also correctly
acknowledged, it is not the Court’s job to weigh the evidence at the summary judgment
stage (or any other stage, given that this case is set to be tried by a jury). Rather, the
Court must examine the record and decide whether the evidence, when viewed in the
light most favorable to the non-moving party, plausibly supports their theory of the case.
Adler, 144 F.3d at 670.
The record evidence sufficiently does so. A reasonable jury could find that
Defendant ended the interactive process—at least at one point in time—by scheduling
Plaintiff to work at her “former position”3 on June 7, 2021, even though Defendant knew
that Plaintiff could only return to work “with restrictions.” (Id.) Plaintiff “claims that Rice-
Minor verbally agreed to [Plaintiff] returning to work after she had seen [her doctor] on
June 15.” (ECF No. 76-2 at 110.) And Plaintiff testified at her deposition that her
supervisor told her that she had been scheduled to work on June 7, 2021, “even though
Brink’s knew that Ms. Beard ‘was going to get those restrictions put back in place’ on
June 15.” (ECF No. 102 at 6.) Plaintiff further testified that her supervisor told her
before her June 7, 2021 shift that she did not “think [Defendant will] let you return with
restrictions.” (Id. at 4.) In the Court’s view, these circumstances are enough to satisfy
the third element of Plaintiff’s failure to accommodate claim.
3 The Recommendation notes that “the summary judgment record is marked by a lack of
clarity” as to “what position Brink’s had offered Ms. Beard in May/June 2021.” (ECF No. 102 at
16.) Although this ambiguity is not mentioned by the parties—which suggests to the Court that
Defendant takes no issue with this point at the summary judgment stage—the Court observes
that Rice-Minor’s June 30, 2021 letter inquired into whether and when Plaintiff would “return to
[her] former position.” (ECF No. 1-5 at 3.) Viewing the evidence in the light most favorable to
Plaintiff, this “former position” reference could mean the clerk vault position—i.e., the position
that twice caused Plaintiff to injure her back.
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Still, Defendant maintains that Plaintiff “ceased all communications with Brink’s”
after July 6, 2021, and insisted throughout the interactive process that Defendant
“unlawfully” terminated her in April 2021, which suggests that she attempted to
“terminate the interactive process quickly to create liability.” Dansie v. Union Pac. R.R.
Co., 42 F.4th 1184, 1194 (10th Cir. 2022). (Id. at 4.) Defendant argues that, because
the duty to engage in the interactive process goes both ways, Plaintiff cannot prevail if
she did not do her part. (Id. at 3 (“An employee’s ADA claim cannot survive summary
judgment where her failure to communicate with the employer is the cause of the
breakdown in this interactive process.”).)
These are worthy arguments to present to a jury. But again, whether Plaintiff
engaged in the interactive process remains an open question where, as here, record
evidence supports the notion that Plaintiff communicated with Defendant during the year
she was on leave and during at least some of the period thereafter. See id. (“Here, a
jury could conclude that Defendant engaged in the interactive process. But Plaintiff has
presented sufficient evidence to create a genuine issue of material fact on whether
Defendant fulfilled its responsibilities during the interactive process to work with Plaintiff
to identify the type of position that would reasonably accommodate his limitations.”).
(See, e.g., ECF No. 115 at 6 (“Brink’s ignores that during this period, Plaintiff remained
proactive and asked to speak to a District Manager about her need for an
accommodation and Brink’s refused to facilitate her request.”).)
Whether a party engaged in the interactive process in good faith is ultimately a
fact-intensive inquiry. Bartee, 374 F.3d at 916. And while the Court thinks Plaintiff’s
theory of the case hinges on a rather myopic view of the evidence—indeed, the jury
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would have to reconcile all other evidence of Defendant’s efforts to accommodate
Plaintiff’s disability from March 2021 through June 2021 to rule in her favor—it is
minimally sufficient to survive summary judgment. See Wirtz v. Kansas Farm Bureau
Servs., Inc., 274 F. Supp. 2d 1198, 1202 (D. Kan. 2003) (noting that policy disfavors
granting summary judgment in employment discrimination cases, “even in what appears
to be [a] relatively weak case”); Thomas v. Am. Nat’l Prop. & Cas. Co., 2017 WL
1077639, at *1 (D. Colo. Mar. 22, 2017) (“Although plaintiff's case may be a weak one, I
find that defendant has failed to meet its burden to show that ‘there is an absence of
evidence to support [Ms. Thomas’] case’ and that it is therefore entitled to a summary
judgment in its favor.”) (citation omitted).
In sum, the Court overrules the objection and adopts the Recommendation in full
with respect to the failure to accommodate claim.
B. 	Discrimination
Defendant contends that the Recommendation erred by concluding that Plaintiff
made a prima facie showing as to the third element of her discrimination claim—i.e.,
that Defendant discriminated against Plaintiff because of her disability. (ECF No. 112 at
7.) Again, the Court discerns no error.
It is unlawful for an employer to discriminate “against a qualified individual on the
basis of disability.” 42 U.S.C. § 12112(a). Where there is no direct evidence of
discrimination, courts apply the McDonnell-Douglas burden-shifting analysis. See
Lincoln, 900 F.3d at 1192. At the first step of that analysis, a plaintiff must “establish a
prima facie case of discrimination by showing (1) that [s]he is disabled within the
meaning of the ADA; (2) that [s]he is qualified for the job held or desired; and (3) that
[s]he was discriminated against because of h[er] disability.” Id. (internal quotation
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marks omitted). Like with a failure to accommodate claim, the Tenth Circuit has said
that “establishing a prima facie” disability discrimination claim “is not onerous.”
Osborne, 798 F.3d at 1266.
Thus, there is significant overlap between the elements of a failure to
accommodate claim and a discrimination claim. Importantly, however, “[d]ifferent than
her failure-to-accommodate claim, to recover on her discrimination claim, [Plaintiff] must
prove that [Defendant] acted with a discriminatory animus against her because she had
a disability.” Aubrey, 975 F.3d at 1014; see also Lincoln, 900 F.3d at 1204; Exby-
Stolley v. Bd. of Cnty. Commissioners, 979 F.3d 784, 794 (10th Cir. 2020) (“To present
a prima facie failure to accommodate claim, the first two elements remain the same,
while the third is met by showing that ‘an employer [did not] take reasonable steps to
[accommodate the employee].’”) (citation omitted).
Defendant again challenges only the third element of Plaintiff’s discrimination
claim, raising two arguments. First, Defendant argues that the Recommendation erred
by concluding that Defendant’s alleged failure to accommodate Plaintiff’s disability
qualifies as discrimination under the ADA. (ECF No. 112 at 8.) Second, Defendant
argues that “the summary judgment record is utterly devoid of evidence of pretext.” (Id.
at 8–9.)
Like the Recommendation, however, the Court is satisfied that Plaintiff has met
her low burden of making a prima facie showing that Defendant discriminated against
her because of her disability. Contrary to Defendant’s first argument, the
Recommendation properly relied on pertinent authorities in concluding that an
employer’s failure to accommodate constitutes discrimination under the ADA.
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Foundationally, the ADA expressly defines “discrimination” to include “not making
reasonable accommodations to the known physical . . . limitations of an otherwise
qualified individual.” 42 U.S.C. § 12112(b)(5)(A).
Consistent with this statutory foundation, the Tenth Circuit has allowed an
employee’s discrimination claim to proceed where the basis of her claim was the
employer’s alleged failure to reasonably accommodate her disability. See Aubrey, 975
F.3d at 1014 (concluding that the plaintiff “satisfied [the third element]” immediately after
quoting the ADA’s definition of discrimination as including failing to make reasonable
accommodations); see also Norwood v. United Parcel Serv., Inc., 57 F.4th 779, 786
(10th Cir. 2023) (“To discriminate against a qualified individual on the basis of disability
includes not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability . . . .”) (quoting §
12112(b)(5)(A)); E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1048 (10th Cir. 2011)
(“[A]n 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.’”) (citations omitted); Smith,
180 F.3d at 1169 (“[A]n employer discriminates against a qualified individual with a
disability if the employer fails to offer a reasonable accommodation.”); id. at 1178 n.12
(“[A] failure to offer a reasonable accommodation to an otherwise qualified disabled
employee is unlawful discrimination.”). In light of all this authority, the Court adopts the
Recommendation’s view that Plaintiff’s discrimination claim is permissibly based on
Defendant’s alleged failure to accommodate her disability.
Defendant’s cited caselaw does not convince the Court otherwise. Exby-Stolley
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held that, unlike a disparate treatment claim, “an adverse employment action is not a
requisite element of a failure-to-accommodate claim.” 979 F.3d at 792. The decision
did not hold the inverse—in other words, it did not hold that a discrimination claim
cannot be premised on an employer’s failure to accommodate. Nor did Vanech v.
Walsh, 2022 WL 4010014, at *8 (D. Colo. July 8, 2022), on which Defendant relies.
That case held that “a failure to accommodate cannot serve as an adverse action for an
ADA [or Rehabilitation Act] retaliation claim because it merely restates an underlying
failure to accommodate claim.” Id. (quoting Hurley v. Fuchs, 2021 WL 4290134, at *8
(D.N.M. Sept. 21, 2021) (emphasis added)).4
To be sure, Defendant’s argument has some appeal. In Exby-Stolley, the Tenth
Circuit contrasted failure to accommodate claims with disparate treatment claims,
explaining that the latter claim requires affirmative adverse-employment-action, whereas
the former claim undoubtedly does not. 979 F.3d at 797 (“[D]isparate-treatment claims
concern discrimination in the form of an action . . . .”) (emphasis in original). Thus, it
seems peculiar that a discrimination claim could be based on an alleged failure to
accommodate, since those claims allege discrimination in the form of inaction. See id.
(“On the other hand, because failure-to-accommodate claims concern discrimination in
the form of a failure to meet an affirmative obligation, there is no action that must be
shown to have been taken with any particular intent.”).
4 Defendant also cites three out-of-state cases to support its theory that a discrimination
claim cannot be predicated on a failure to accommodate claim. (See ECF No. 112 at 8.) But
only one of them arguably supports its position. See Dressel v. Safeway, Inc., 2020 WL
5880860, at *7 (D. Md. Oct. 2, 2020) (holding that “the dereliction of [the duty to engage in the
interactive process] does not give rise to a claim apart from one of failure to accommodate.”).
And even were the Court persuaded by this case’s reasoning, the Court still could not follow it
given the on-point Tenth Circuit caselaw on this issue. (See ECF No. 112 at 8.)
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In any event, the Court is unaware of subsequent Tenth Circuit caselaw
overruling or otherwise abrogating Aubrey’s conclusion that a discrimination claim can
be based on an employer’s failure to accommodate an employee’s reasonable
accommodation request, so the Court is bound to follow it. See United States v. Maloid,
71 F.4th 795, 808 (10th Cir. 2023) (declaring that it is a higher court’s prerogative to
overrule its precedents). And notably, Defendant points the Court to no such authority
either. Hence, the Court rejects Defendant’s argument that its alleged failure to
accommodate is incompatible with Plaintiff’s discrimination claim. See Dixon v. Bd. of
Trustees of Metro. State Univ. of Denver Colorado, 2023 WL 11862296, at *7 (D. Colo.
Oct. 27, 2023) (allowing intentional discrimination claim to proceed that was based on
defendant’s failure to accommodate); see also Mullen v. Commissioners for Adams
Cnty., Colorado, 2022 WL 1266618, at *10–11 (D. Colo. Apr. 28, 2022) (same).
That leaves Defendant’s second argument that the record does not support the
Recommendation’s conclusion that Defendant’s reasons for discriminating against
Plaintiff—i.e., the reasons why Defendant allegedly failed to accommodate Plaintiff’s
disability by scheduling her to return to her “former position” on June 7, 2021—can
plausibly be viewed as pretextual. (See ECF No. 102 at 23 (“The court finds that Ms.
Beard has adduced sufficient evidence to create a triable issue regarding pretext . . .
.”).) The standard for pretext is as follows:
A plaintiff may show pretext by demonstrating the proffered
reason is factually false, or that discrimination was a primary
factor in the employer's decision. This is often accomplished
by revealing weakness, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered
reason, such that a reasonable fact finder could deem the
employer's reason unworthy of credence.
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Aubrey, 975 F.3d at 1015 (quoting Lincoln, 900 F.3d at 1193); see also Davis, 2023 WL
8757073, at *6 (to show pretext, a plaintiff “must come forward with evidence that [the
defendant] didn't really believe its proffered reason[ ] for action and thus may have been
pursuing a hidden discriminatory agenda.”) (citation omitted). “Typically, a plaintiff
establishes pretext with evidence that: (1) the defendant's stated reason for the adverse
employment action was false; (2) the defendant acted contrary to a written company
policy prescribing the action to be taken by the defendant under the circumstances; or
(3) the defendant treated the plaintiff differently from other similarly[ ]situated employees
who violated work rules of comparable seriousness.” Id. (citation omitted).
Initially, the Court notes that it is unclear what specific reasons Defendant posits
in its objection for why it scheduled Plaintiff to work on June 7, 2021, despite her
request to meet with her doctor on June 15, 2021. Instead of asserting legitimate, non-
discriminatory reasons for doing so, Defendant recycles its arguments that (1)
Defendant repeatedly attempted to contact Plaintiff for months with respect to
accommodating her disability and (2) “it is beyond dispute that Brink’s did not terminate
Beard’s employment until over two years [sic] later, affording her more than ample
opportunity to submit accommodation requests that never came.” (ECF No. 112 at 9–
10.)
But these points do not call into question the Recommendation’s conclusion that
Plaintiff adduced sufficient evidence of pretext. Neither do the three reasons Defendant
raised in its summary judgment papers: “(1) Ms. Beard failed to return to work despite
the May 2021 Release; (2) she did not provide any written restrictions from any doctor
in the May/June 2021 timeframe for Brink’s to consider; and (3) she ‘dogged[ly]’ refused
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to engage in the interactive process with Rice-Minor.” (ECF No. 102 at 23.) The
Recommendation dispensed with each of these reasons, explaining that (1) Defendant’s
reliance on the May 2021 Release “is tenuous” because the doctor gave Plaintiff a full-
duty release per her request, not based on some improved medical condition; (2)
Plaintiff’s failure to supply written accommodations for Defendant to consider was of
Defendant’s “own contrivance” since it ”denied her request for just a few more days’
time that would have enabled her to provide the restrictions it now faults her for
omitting”; and (3) record evidence supports Plaintiff’s argument that she repeatedly tried
to engage in the interactive process. (Id. at 24–25.)
Simply put, the Recommendation’s analysis on these points is reasonable. Each
of these explanations tends to reveal “weakness, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered reason[s], such that a
reasonable fact finder could deem the employer's reason unworthy of credence.”
Aubrey, 975 F.3d at 1015. Significantly, Defendant’s objection does little to
meaningfully refute these points.
Given all this, the Court overrules the objection and adopts the Recommendation
in full with respect to the discrimination claim. See Wirtz, 274 F. Supp. 2d at 1202
(“Summary judgments should seldom be used in employment discrimination cases.
Employment discrimination cases often turn on the employer's intent, and the courts
generally consider summary judgment inappropriate in deciding such questions of
intent.”); see also Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995)
(“Judgments about intent are best left for trial.”).
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V. CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1. 	Defendant’s objection (ECF No. 112) to the Recommendation (ECF No.
102) is OVERRULED and the Recommendation is ADOPTED IN FULL;
2. 	Defendant’s motion for summary judgment is GRANTED IN PART AND
DENIED IN PART as set forth more fully in the Recommendation (ECF
No. 76) and in the decision and discussion above;
3. 	Plaintiff’s motion for summary judgment is DENIED (ECF No. 78); and
4. 	The case remains set for a Final Trial Preparation Conference on
September 12, 2025, and a three-day jury trial to begin on September
29, 2025.
Dated this 23 rd day of January, 2025.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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