Trujillo v. PacifiCorp

FILED
United States Court of Appeals
Tenth Circuit

May 7, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM TRUJILLO; DEBRA
TRUJILLO,

Plaintiffs-Appellants,
No. 06-8074
v.

PACIFICORP, an Oregon corporation,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 05-CV-321-CAB)

Sharon M. Rose of Lavery & Rose, P.C., Evanston, Wyoming, for Plaintiffs-
Appellants.

Richard D. Bush (Paul J. Hickey with him on the brief) of Hickey & Evans, LLP,
Cheyenne, Wyoming, for Defendant-Appellee.

Before TACHA, SEYMOUR, and HOLMES, Circuit Judges.

SEYMOUR, Circuit Judge.
 William and Debra Trujillo brought this action against PacifiCorp claiming

their employment with PacifiCorp was terminated in violation of the association

clause of the Americans with Disabilities Act (ADA), 42 U.S.C. §12112(b)(4),

and the Employee Retirement Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001

et seq. The district court granted PacifiCorp summary judgment on both claims.

We reverse.

I

William and Debra Trujillo were employed by PacifiCorp at the Jim

Bridger Power Plant in Sweetwater County, Wyoming. 1 Mr. Trujillo’s tenure

with PacifiCorp lasted over twenty-five years while Mrs. Trujillo was employed

by the company for eight years. As employees, the Trujillos participated in the

employer provided health insurance plan. The Trujillos’ son, Charlie, was also

covered by the plan. Charlie suffered from a brain tumor which later

metastasized to his spine. The Trujillos used their available health insurance

benefits to cover the treatment of their son. It is unclear from the record when it

was first discovered Charlie had a brain tumor, but he suffered a relapse on May

30, 2003, and was deemed to be in the final stages of cancer. Charlie’s medical

care providers recommended aggressive experimental treatments to reverse the

progression of the disease. Treatment began immediately. In six weeks,

1
As is required by F ED . R. C IV . P. 56, we review the evidence in the light
most favorable to the Trujillos.

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Charlie’s medical bills exceeded $62,000. Charlie died in 2004.

PacifiCorp employees at both the local and corporate level were aware of

Charlie’s condition, his relapse, and his need for experimental treatment. Being a

self insured company, insurance claims for Charlie’s healthcare were paid directly

by PacifiCorp. As with most modern businesses, healthcare costs were a concern

at the local and corporate level. It was understood at the plant that a small

percentage of employees with catastrophic injuries drive health care costs up.

One executive commented that 90% of all healthcare costs were incurred as result

of only 10% of the employees. Charlie was one of only two people with a

terminal illness during the relevant time period.

Demonstrating the company’s keen eye on costs, healthcare costs for each

employee were factored into the plant’s budget line item for labor costs. Bob

Arambel, the plant manager, testified that employees were being asked to foot

more of the bill for health insurance. As a result, the labor union and the

company would meet annually to review the past year’s health care claims and

claims experiences, and to discuss cost sharing by increasing employee premiums.

In fact, healthcare costs were of such concern that, just before Charlie’s relapse,

the company asked the state of Wyoming for a utility rate increase. In part, the

company justified its request on significantly increased healthcare costs.

PacifiCorp designated claims of over $50,000 as high-dollar ones.

Charlie’s medical expenses during his relapse exceeded that figure by at least

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$12,000. On June 10, 2003, just eleven days after Charlie’s relapse, the company

began an investigation into suspected time theft by the Trujillos. The

investigation resulted in the termination of the couple. The plant manager, Bob

Arambel, as well as two other managers from the labor relations group,

participated in the decision to terminate them.

The investigation of the Trujillos focused on time allegedly falsely reported

during a planned outage. During an outage, one of the plant’s turbines would

undergo regularly needed maintenance. When this additional activity occurred,

the normal routine of the plant changed and the employees’ hours and supervisors

changed. Employees worked on specialized crews and often worked overtime to

complete the turbine maintenance quickly.

To record their time at the plant, the Trujillos kept time sheets, as did other

employees. Because there was not a time clock requiring employees to punch in

and out during a shift, supervisors verified and approved time kept based on their

observations of employees during the workday. Although time sheets were

supposed to be turned in and reviewed at the end of each day, supervisors did not

always follow this procedure. Sometimes, employees filled out time sheets well

after the dates worked. Similarly, so that time could be determined for a certain

pay period, sometimes employees were asked to fill out time sheets in advance.

In addition, supervisors and foremen sometimes permitted employees to leave

early but record a full shift. Each supervisor had his own method of managing

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time sheets and the time he permitted employees to record.

Traffic and pedestrian gates are located at the perimeters of the plant. The

gates were not intended as a method of keeping track of hours worked, but rather

as a security measure. To access the gates, employees were required to use a

personal identification card to open the gates or to sign in and out as they went

through the gates. Employees often entered and exited the security gates with

another employee, however, in which case only one employee would swipe their

card to open the gates. This practice was known as piggybacking. Despite the

gates’ security purpose, their use by every employee during each entry and exit

was not strictly enforced.

The investigation of the Trujillos was conducted by Larry Cundick, one of

Mr. Trujillo’s regular supervisors, Paul Fahlsing, Mr. Cundick’s supervisor, and

Rick Jones, a labor relations consultant at the plant. Mr. Cundick began the

investigation after he was asked to sign Mr. Trujillo’s timesheets on behalf of one

of his supervisors during the outage. Although the security gates had not

previously been used to verify time sheets, Mr. Cundick decided to compare Mr.

Trujillo’s time sheets with the security gate log’s list of entries and exits. He

found that for the period of May 27 through June 10, 2003, the time cards and

gate logs showed discrepancies. Because Mr. and Mrs. Trujillo often carpooled to

work, PacifiCorp assumed the couple would be at work at the same times. On

that assumption, PacifiCorp also compared Mrs. Trujillo’s time sheets and gate

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records with her husband’s time sheets and gate records. Time and gate records

of spouses had not been previously used to verify individual employee work

hours. The comparison revealed there were times when one spouse was there and

the other was not. Further discrepancies were found between Mrs. Trujillo’s

individual time sheets and gate logs. Thus began the investigation of both

Trujillos.

Mr. Trujillo was contacted on June 10 regarding the time discrepancies

revealed by the comparison of his time sheets to the security gate logs and to his

wife’s time sheets and gate logs. While Mr. Trujillo could explain some of the

problems with his time sheets, he generally could not recall whether he was

working or not during times for which he was asked to account. He informed

management employees that due to his son’s condition and his own mental health,

he was under a severe amount of stress. Three days after the initial meeting,

PacifiCorp contacted him again. During this meeting, Mr. Trujillo’s mental

health was discussed. 2 Mr. Trujillo disclosed that he was taking anti-depressant

medications and was attempting to get additional mental healthcare but that his

doctor was not available for another two weeks. No specific discussion of alleged

time theft incidences is evidenced in the record.

On June 19, 2003, PacifiCorp sent Mr. Trujillo a termination letter citing a

2
During the relevant time period Mr. Trujillo was suffering from severe
depression and other mental health problems.

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total of ten incidents of time theft. As reason for Mr. Trujillo’s termination,

Pacificorp alleged Mr. Trujillo intentionally falsified time records to show that he

worked 21.1 hours of regular time and six hours of overtime for the time period

of April 23 through May 29, 2003.

Bob Arambel testified that the decision to terminate Mrs. Trujillo was made

at approximately the same time as the decision to terminate Mr. Trujillo. Prior to

the decision to terminate Mrs. Trujillo, the company had spoken with her only

once regarding time sheet discrepancies. In that telephone call, while Mrs.

Trujillo was attending to her son in a Denver hospital, she was asked to explain

time discrepancies as far back as April 2003. She advised that she could not

recall specifics, but that the gate logs did not necessarily reveal her presence or

absence at the plant. 3 She explained that she often went to her vehicle during the

work day to get groceries or other things, and while she used her identification

card to exit the gates, she did not always use it to reenter because the gates were

open or she piggybacked into the plant. On days when Mr. Trujillo left early, she

occasionally would exit the gates with him to obtain something from their vehicle

and then return to the plant, sometimes piggybacking then as well. When Mr.

Trujillo left early, a co-worker would give her a ride home.

3
In his deposition, Mr. Trujillo made a similar claim. Essentially he said
that if policy was followed, gate records would reflect accurate times of entries
and exits to the plant but that no one followed policy and thus the gate logs did
not accurately reflect time worked.

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 PacifiCorp made a follow-up call to Mrs. Trujillo on June 22. At that time,

she gave the same explanation for the discrepancies: the gate logs were not

necessarily reflective of the times she worked. She also recalled that she had

previously turned in revised time cards to one of her supervisors. A final

discussion regarding Mrs. Trujillo’s time theft was held in August after she

returned to work from caring for her son. To substantiate her previous claims,

Mrs. Trujillo was asked to provide names of employees with whom she had

ridden in or out of plant and employees who had given her a ride home. Although

the employees did not give specific dates and times that Mrs. Trujillo

piggybacked, they were able to confirm that they had given her rides in and out of

the plant and to home during the relevant time period. Nonetheless, Mrs. Trujillo

was terminated on August 25. In the termination letter, Pacificorp alleged she

intentionally falsified time records to show that she had worked 7.8 hours of

regular time and 5.1 hours of overtime for the time period of April 23 through

May 29, 2003.

II

We review the district court’s decision de novo, applying the same legal

standards applicable in the district court, including a view of the evidence in the

light most favorable to the Trujillos and drawing all inferences in their favor.

E.E.O.C. v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 483 (10th Cir. 2006).

Summary judgment is appropriate only “if the pleadings, the discovery and

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disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” F ED . R. C IV . P. 56(c).

The Trujillos claim they were terminated because of the healthcare costs

associated with their son’s illness. Title I of the ADA provides covered

employers shall not “discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). PacifiCorp is a covered employer subject to

requirements of the ADA. Disability discrimination includes “excluding or

otherwise denying equal jobs or benefits to a qualified individual because of the

known disability of an individual with whom the qualified individual is known to

have a relationship or association.” Id. at § 12112(b)(4). This prohibition is

known as the “association provision” of the ADA. See Den Hartog v. Wasatch

Acad., 129 F.3d 1076, 1082 (10th Cir. 1997). “A family relationship is the

paradigmatic example of a ‘relationship’ under the association provision of the

ADA.” Id. (citing 29 C.F.R. § 1630.8). The Trujillos’ relationship to their son

is protected by the association provision.

To succeed on appeal, the Trujillos must satisfy the four elements of the

prima facie case of ADA association discrimination, which we enumerated in Den

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Hartog as follows:

(1) the plaintiff was “qualified” for the job at the time of the adverse
employment action;

(2) the plaintiff was subjected to adverse employment action;

(3) the plaintiff was known by his employer at the time to have a
relative or associate with a disability;

(4) the adverse employment action occurred under circumstances
raising a reasonable inference that the disability of the relative or
associate was a determining factor in the employer’s decision.

Id. at 1085. Under the familiar McDonnell Douglas burden shifting framework,

the burden shifts to PacifiCorp to proffer a legitimate, non-discriminatory reason

for terminating the Trujillos if the Trujillos establish a prima facie case of an

association discrimination claim. Id. Once PacifiCorp proffers a non-

discriminatory reason, the burden shifts back to the Trujillos to provide evidence

that the stated reason is pretextual. Id. To show pretext, the Trujillos must

establish by a “preponderance of the evidence that the legitimate reasons offered

by [PacifiCorp] were not its true reasons, but were a pretext for discrimination.”

Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). At this stage,

the trier of fact may consider evidence establishing the prima facie case and

“‘inferences properly drawn therefrom . . . on the issue of whether the

defendant’s explanation is pretextual.’” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 255, n.10).

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Prima Facie Case

The district court determined the Trujillos met the first three elements of

the prima facie ADA association discrimination test, and PacifiCorp does not

contest that determination. As to the fourth prong, the court held the Trujillos

failed to raise a reasonable inference that the disability of Charlie was a

determining factor in PacifiCorp’s decision to terminate them.

In granting PacifiCorp summary judgment, the district court relied heavily

on Larimer v. Int’l Bus. Machs. Corp., 370 F.3d 698 (7th Cir. 2004). In Larimer,

the plaintiff claimed he was terminated because his twin daughters were born

prematurely and thus had the potential to cost his employer greatly in medical

benefits. Id. at 699. The plaintiff’s asserted reason for the termination led the

court to categorize three types of ADA association discrimination cases.

[The categories] can be illustrated as follows: an employee is fired
(or suffers some other adverse personnel action) because (1)
(“expense”) his spouse has a disability that is costly to the employer
because the spouse is covered by the company’s health plan; (2a)
(“disability by association”) the employee’s homosexual companion
is infected with HIV and the employer fears that the employee may
also have become infected, through sexual contact with the
companion; (2b) (another example of disability by association) one
of the employee’s blood relatives has a disabling ailment that has a
genetic component and the employee is likely to develop the
disability as well (maybe the relative is an identical twin); (3)
(“distraction”) the employee is somewhat inattentive at work because
his spouse or child has a disability that requires his attention, yet not
so inattentive that to perform to his employer’s satisfaction he would
need an accommodation, perhaps by being allowed to work shorter
hours.

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Id. at 700. Although it conceded that the case did not fit neatly into any of these

categories, the court analyzed it as an “expense” case. Id. at 701. Because Mr.

Larimer could not show his “supervisors [had] a financial stake in the company’s

performance and thus a stake, however attenuated, in the firing of an ‘expensive’

employee,” the court held that he could not satisfy the final element of his

association discrimination claim. Id. at 701.

Taking guidance from Larimer, the district court here designated this as an

expense case and focused on the evidence suggesting that the healthcare costs of

Charlie’s cancer motivated PacifiCorp to terminate his parents. The expense

factor dominated the court’s decision. Without evidence of corporate tracking of

health benefits in the budget or a tie between compensation and healthcare

savings or “similar evidence,” the court held the Trujillos could not make a direct

link between Charlie’s illness and the asserted illegal motive to terminate them.

Alpt. App., vol. I at 102-03. The court then considered circumstantial evidence of

the expense factor. Here too, the court held the Trujillos fell short. It

characterized the Trujillos’ circumstantial evidence as (1) “general corporate

statements about health care costs — including [a corporate] understanding that a

minority of individual employees are responsible for a majority of corporate

health care expenditures;” and (2) “PacifiCorp’s use of rising health care costs to

justify rate increases.” Id. at 103. The court concluded that if such a general

concern were enough to raise the “reasonable inference of disability

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discrimination [it] would almost always be possible because employee health care

costs are a pervasive concern of business managers and owners.” Id. at 104.

Although the court referred to the matter as a “close case,” id. at 102, it found the

evidence presented to be insufficient and concluded summary judgment was

warranted.

Considering the evidence in the light most favorable to the Trujillos and

our case law on establishing discriminatory motive, we disagree. Under the

totality of the circumstances approach, the Trujillos raised the necessary

reasonable inference of discriminatory motive to establish a prima facie case of

association discrimination. See Butler v. City of Prairie Vill., Kan., 172 F.3d 736

(10th Cir. 1999) (applying totality of circumstances approach in ADA

discrimination case). In so deciding, we consider the evidence presented

regarding PacifiCorp’s concerns about the cost of Charlie’s illness and the

temporal proximity between Charlie’s relapse and the terminations.

In Larimer, the court noted that the plaintiff “made no effort to pitch his

case” on the ground that the company had a stake, however attenuated, in firing

an expensive employee. 370 F.3d at 701. A thorough review of the record

reveals the Trujillos not only made the effort but also established the necessary

connection. As enumerated in the background facts, the Trujillos offered

everything from evidence of general concerns about the rising cost of healthcare

to the specific facts that Charlie’s claims were considered high dollar, that there

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was only one other terminal illness during the relevant time period, and that

PacifiCorp was keeping tabs on those claims. 4 While PacifiCorp seems to suggest

the Trujillos needed direct evidence that the company was “monitoring the

individual costs being incurred by the Trujillos’ son for medical treatment,” Aple.

Br. at 16, they only needed to present enough evidence for a reasonable inference

of that premise to arise. See Butler, 172 F.3d at 749 (holding plaintiff could

establish prima facie elements of discrimination through circumstantial evidence).

The facts in the record raise such an inference.

Highlighting that evidence, we note that, contrary to the district court’s

assertion otherwise, the Trujillos presented evidence that insurance costs factored

into the budget line item for labor costs of each employee. Larimer indicates this

evidence weighs heavily in favor of demonstrating motive to discriminate against

an expensive employee, and we agree. A “manager would care about the actual

expense for health services to the relatives of an employee in his unit because that

expense would be in his budget.” Larimer, 370 F.3d at 701. Evidencing that

management knew about the cost of Charlie’s healthcare, the Trujillos offer an

4
The cost of Charlie’s illness was not only borne out in the cost of Charlie’s
medical care, but also in the loss of work hours from the Trujillos while they
attended to their son. Mr. Trujillo suffered severe mental stress during the time
of Charlie’s illness causing him to take additional time off from work. Charlie’s
illness caused the Trujillos to use FMLA leave, other unpaid leave, donated
leave, and personal time off. While PacifiCorp did not pay the Trujillos for this
time off, their healthcare coverage extended throughout the period. In that sense,
the Trujillos were costly to PacifiCorp because PacifiCorp provided something to
the Trujillos for which it received nothing in return.

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email regarding Mrs. Trujillo’s personal leave related to Charlie’s illness in which

the company stated it monitored both health and welfare benefits in conjunction

with an employee’s personal leave. From the evidence the Trujillos presented —

concerns about rising healthcare costs, numerous efforts to cut those costs,

corporate monitoring of general healthcare costs and of Charlie’s claims

specifically — a jury could reasonably infer that PacifiCorp terminated the

Trujillos because they were expensive employees.

When we also consider the temporal proximity between Charlie’s relapse

and the investigation of the Trujillos, we are persuaded the Trujillos established

the necessary inference that PacifiCorp wanted to rid itself of these employees

because their son’s terminal illness made them too expensive. The Trujillos’

strongest evidence of discriminatory motive is found in the temporal proximity

between the time of Charlie’s relapse and the investigation of the alleged time

theft and their termination. Yet the district court only made a passing reference

to “the timing and quality of the investigation,” aplt. app., vol. 1 at 102,

concluding the evidence was insufficient to establish the necessary reasonable

inference of discriminatory motive. Our case law requires the opposite

conclusion.

Depending on the specific facts of the case, temporal proximity can

contribute to an inference of discrimination. See Butler, 172 F.3d at 749

(temporal proximity between ADA plaintiff’s request for accommodation and

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decline in his work evaluations and satisfaction with his work performance

contributed to discriminatory inference). The closer in time a protected action

(the claims resulting from Charlie’s relapse) is followed by an adverse action (the

investigation and termination), the more likely temporal proximity will support an

inference of discrimination. See Anderson v. Coors Brewing Co., 181 F.3d 1171,

1179 (10th Cir.1999). Here the time period between the adverse employment

action and the protected activity is less than three weeks as to Mr. Trujillo and

approximately six weeks as to Mrs. Trujillo.

Close temporal proximity is important in establishing a prima facie case of

association discrimination case. Den Hartog specifically references consideration

of the “circumstances” under which the adverse action arose as part of the fourth

prong of the prima facie case. Den Hartog, 129 F.3d at 1085. This is appropriate

given the difficulty in establishing an expense case. As is the case of

discrimination claims in general, direct evidence of discrimination resulting from

costs to the company will be rare. Phelps v. Field Real Estate Co., 991 F.2d 645,

649 (10th Cir. 1993). Where as here, the temporal proximity is close, it is a

circumstance that should be given considerable weight. 5

5
In fact, in the context of retaliation claims, we have permitted plaintiffs to
establish a prima facie case of discrimination by showing only close proximity in
time between a protected activity and an adverse action. Compare Annett v. Univ.
of Kan., 371 F.3d 1233, 1239-40 (10th Cir. 2004) (prima facie case established
where university declined to interview and hire plaintiff who prevailed in lawsuit
against university only one month before); Anderson, 181 F.3d at 1179 (temporal
(continued...)

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 Against the backdrop of the concerns about rising healthcare costs and,

more specifically, the awareness of the high cost of Charlie’s healthcare, the

temporal proximity between Charlie’s relapse and the decision to terminate both

Trujillos powerfully demonstrates the necessary reasonable inference that

PacifiCorp terminated the Trujillos for an illegal reason. With this evidence, the

Trujillos have established a prima facie case of association discrimination in the

expense category.

5
(...continued)
proximity of nine weeks could establish causation); Ramirez v. Okla. Dep’t of
Mental Health, 41 F.3d 584, 596 (10th Cir.1994) (one and one-half month period
between protected activity and adverse action may, by itself, establish causation),
overruled on other grounds by Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186,
1194-97 (10th Cir.1998); Love v. RE/MAX of America, Inc., 738 F.2d 383, 386
(10th Cir. 1989) (sustaining finding of retaliation where termination occurred
within two hours of engaging in protected activity); with Antonio v. Sygma
Network, Inc., 458 F.3d 1177,1181-82 (10th Cir. 2006) (nine months too
temporally remote to support inference of causation); Haynes v. Level 3 Comm’ns,
LLC, 456 F.3d 1215, 1228 (10th Cir. 2006) (employee could not show
discrimination under Title VII, ADEA, and ADA where seven months intervened
between protected activity and retaliatory conduct); Meiners v. Univ. of Kan., 359
F.3d 1222, 1231 (10th Cir. 2004) (time period between two to three months not
sufficient alone to establish causation in Title VII failure-to-hire case); Richmond
v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997) (three-month period, standing
alone, insufficient to establish causation); see also O’Neal v. Ferguson Constr.
Co., 237 F.3d 1248, 1253 (10th Cir.2001) (declining to decide whether temporal
proximity of two months and three weeks alone sufficient to establish prima facie
case). Our reference to these cases is not intended to suggest that an association
discrimination plaintiff can establish the fourth prong of the prima facie case by
showing temporal proximity alone, but rather to stress the weight of the factor in
analyzing whether a discrimination plaintiff has raised a reasonable inference of a
motive to discriminate.

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Legitimate Business Reason and Pretext

Once the prima facie case is established, we look at the proffered non-

discriminatory reason for the termination. PacifiCorp asserts that the Trujillos

intentionally falsified time records in order to earn compensation for time they

had not worked. The Trujillos do not argue that PacifiCorp’s proffered reason

for their terminations is not a basis for firing them, only that it is a pretextual

reason. To defeat PacifiCorp’s claim on summary judgment, “the plaintiff’s

burden is only to demonstrate a genuine dispute of material fact as to whether the

proffered reasons were unworthy of belief.” Morgan v. Hilti, Inc., 108 F.3d 1319,

1321 (10th Cir. 1997).

“Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Id. at 1323 (internal quotation marks

omitted). As with the prima facie case, there is no one specific mode of evidence

required to establish the discriminatory inference. See E.E.O.C. v. Horizons/CMS

Healthcare Corp., 220 F.3d 1184, 1198-99 (10th Cir. 2000). Rather, pretext can

be shown in a variety of ways, including but not limited to differential treatment

of similarly situated employees and procedural irregularities. The former is

“especially relevant” where the defendant has proffered a legitimate non-

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discriminatory reason for the adverse employment action. Id. at 1195 n. 6.

The Trujillos offered evidence regarding the differential treatment of

similarly situated employees. 6 For example, approximately four weeks prior to

Mr. Trujillo’s termination, another long term employee, Linda Todd, was under

investigation by the same management employees for two separate incidents in

which she made threats of violence against other employees. During the course

of the investigation, Ms. Todd maintained that stress caused her behavior. She

was initially put on short term disability leave until her situation improved,

although she was ultimately terminated for working while on that leave, drug and

alcohol abuse and workplace violence. The treatment of Ms. Todd differs

drastically from the treatment of both Trujillos. Rather than progressively

discipline the Trujillos, taking into consideration their past performance and their

current situation, PacifiCorp immediately terminated them. The Trujillos also

presented evidence of a situation in which an employee was not terminated after

committing serious misconduct by viewing pornography twice on company

computers. Finally, severely undermining the company’s claim that time theft

resulted in immediate termination, the Trujillos offered evidence that many other

employees were punished with days without pay, rather than termination, for time

sheet violations. This disparate treatment of similarly situated employees

6
Mr. Arambel, the plant manager, testified that all employees are subject to
the same disciplinary policies. Mr. Arambel stated he considered all offenses
listed in the disciplinary policy as “serious offenses” to be equally serious.

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contributes to a reasonable inference of pretext, defeating PacifiCorp’s claimed

legitimate business reason for terminating the Trujillos.

We also note the inferences that can be drawn from the irregularity of

PacifiCorp’s actions in the course of the time theft investigation. Evidence

presented to the district court indicates that comparing an employee’s time sheets

to his gate log records was an unreliable method of determining whether an

employee purposefully attempted to be paid for hours not worked. The same is

true when comparing records of employees who were assumed to come in and out

of work together. Although PacifiCorp appears to have a policy in place for both

recording time worked and entry and exit of the plant, there was evidence that the

policy did not reflect what actually occurred in practice. PacifiCorp’s sudden

claim that a comparison of the Trujillos’ time and gate records should exactly

reflect the hours they self-recorded is suspicious given that managers,

supervisors, and employees testified that neither time sheet nor gate access

procedures were followed.

We also consider the failure to interview Dan Michaelis in the course of the

investigation a significant circumstance contributing to the inference of

discrimination. Mr. Michaelis, one of the Trujillos’ supervisors during the

outage, was never asked about the alleged overage on their time cards although he

had signed some of their time sheets during the relevant time period. In an

affidavit, Mr. Michaelis averred that due to Charlie’s illness, he had allowed both

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Trujillos to leave early without any adjustment to their time in order to attend to

their son.

Additionally, we note PacifiCorp’s failure to apply its assumptions that the

Trujillos came to work together to the benefit of the Trujillos. PacifiCorp only

construed the evidence resulting from the comparison of their gate logs and time

to sheets to the detriment of the Trujillos. For example, Mr. Trujillo’s

termination letter listed the fact that gate logs did not substantiate the hours he

had listed on his May 18 and May 27 time sheets. While Mrs. Trujillo’s gate logs

showed attendance for the proper number of hours on those days, the company

nevertheless ignored an assumption that Mr. Trujillo was there when his wife was,

and used those dates as a basis for termination. Likewise, while records show

that on May 10, 2003, Mr. Trujillo entered the plant earlier than the scheduled

shift, Mrs. Trujillo was terminated, in part, for not having a gate entry prior to the

entry of the start of the same shift.

The failure to progressively discipline the Trujillos as PacifiCorp did other

similarly situated employees, in addition to its failure to conduct what appeared to

be a fair investigation of the Trujillos’ alleged time theft, create genuine issues of

material fact on whether PacifiCorp’s reason for terminating them was pretextual.

“[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination

from the falsity of the employer’s explanation.” Reeves, 530 U.S. at 147.

PacifiCorp criticizes the Trujillos’ case as one requiring us to build

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inference upon inference to establish the requisite discriminatory motive. To

support its argument, PacifiCorp cites Ennis v. National Association of Business

and Educational Radio, Inc., 53 F.3d 55 (4th Cir. 1995), an association

discrimination case in which the plaintiff alleged she was terminated because she

had a child who was HIV-positive. Id. at 62. To establish an inference of

discrimination, the plaintiff presented evidence of a memorandum to employees

suggesting that expensive claims would increase employee premiums. Id. at 57.

The document was issued seven months prior to her termination. From these

circumstances, the plaintiff wanted an inference that her employer terminated her

because of her child’s chronic disease. Given her relatively short tenure and a

record replete with evidence that her employer had been unhappy with her

performance, there was no reasonable inference of a nexus between cost of the

child’s health problems and plaintiff’s termination. Id. at 62 (“The building of

one inference upon another will not create a genuine issue of material fact. Mere

unsupported speculation, such as this, is not enough to defeat a summary

judgment motion.”) (internal citations omitted).

This case shapes up quite differently. In this record, there was

considerable evidence of concern about healthcare costs and facts that

demonstrated that the company was aware high dollar claims like Charlie’s could

only increase those costs. Upon news of Charlie’s relapse, the company used

unusual auditing procedures to demonstrate that their long term employees, the

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Trujillos, defrauded them of a total of exactly 40 hours. Although the company

had progressively disciplined similarly situated employees for the same or

equally serious offenses, it immediately terminated the Trujillos. Although the

couple together served PacifiCorp for 28 years, they were never given the benefit

of the doubt during the investigation. Rather, the company seemingly relied only

on evidence to the detriment of the Trujillos and failed to interview key

witnesses. When viewed in the light most favorable to the Trujillos, the

evidence provides a reasonable inference that the Trujillos were costing the

company time and money and considered it better to terminate them than to incur

the costs of Charlie’s illness.

III

The Trujillos also contend PacifiCorp terminated them in violation of

ERISA. Section 510 of ERISA makes it illegal for an employer to terminate any

person “for the purpose of interfering with the attainment of any right to which

such [person] may become entitled to under [an employee benefit plan].” 29

U.S.C. § 1140. To make a prima facie case of interference with ERISA benefits,

the Trujillos must establish “by a preponderance of the evidence [] that [their]

discharge was motivated by an intent to interfere with employee benefits

protected by ERISA.” Phelps v. Field Real Estate Co., 991 F.2d 645, 649 (10th

Cir. 1993).

As we concluded above, the Trujillos provided sufficient evidence that the

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decision to terminate them was based on discriminatory intent to violate the

ADA. That evidence also supports an inference that their discharge was

motivated by an intent to interfere with their ERISA benefits. The district

court’s summary decision on this claim was in error as well.

IV

We REVERSE the judgment of the district court and REMAND for

further proceedings consistent with this opinion.

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