Medina v. Dumas

2020 UT App 166THE 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
BACKGROUND 1
¶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.
20190654-CA 2 2020 UT App 166Medina v. Dumas
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…)
20190654-CA 3 2020 UT App 166Medina v. Dumas
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.
20190654-CA 4 2020 UT App 166Medina v. Dumas
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 facts 5 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…)
20190654-CA 5 2020 UT App 166Medina v. Dumas
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.
20190654-CA 6 2020 UT App 166Medina v. Dumas
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.
20190654-CA 7 2020 UT App 166Medina v. Dumas
¶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…)
20190654-CA 8 2020 UT App 166Medina v. Dumas
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.
20190654-CA 9 2020 UT App 166Medina v. Dumas
¶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).
20190654-CA 10 2020 UT App 166Medina v. Dumas
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
20190654-CA 11 2020 UT App 166Medina v. Dumas
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).
20190654-CA 12 2020 UT App 166Medina v. Dumas
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).
20190654-CA 13 2020 UT App 166Medina v. Dumas
¶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
20190654-CA 14 2020 UT App 166Medina v. Dumas
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
20190654-CA 15 2020 UT App 166Medina v. Dumas
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
20190654-CA 16 2020 UT App 166Medina v. Dumas
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.
20190654-CA 17 2020 UT App 166Medina v. Dumas
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.
20190654-CA 18 2020 UT App 166Medina v. Dumas
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’
20190654-CA 19 2020 UT App 166Medina v. Dumas
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).
20190654-CA 20 2020 UT App 166