Plaintiff Brittany Zarco sued defendant Book and Ladder, LLC in the United States District Court for the District of Kansas raising claims of sex discrimination and retaliation under Title VII and disability discrimination and retaliation under the ADA. Before the court is Defendant Book and Ladder’s motion for summary judgment.
Statement of Undisputed Facts
Defendant Book & Ladder, LLC managed the Rockland apartment complex in Lawrence, Kansas, and employed Plaintiff as a guest experience associate from July 25, 2022, through March 27, 2023. Plaintiff’s role involved creating positive experiences for guests, vendors, and team members through outreach, marketing, events, and leasing efforts. Defendant maintained conduct policies prohibiting abusive language, insubordination, and creating workplace conflict, with progressive discipline typically involving warnings before termination.
Prior to her employment, Plaintiff suffered a retinal detachment in her right eye and developed cataracts in both eyes. She underwent surgery to reattach her retina and regained 98% vision in her right eye. During her interview, Plaintiff disclosed her visual impairments and upcoming surgeries to supervisors Kaelan Cameron and Allison Weber. Plaintiff’s supervisors were aware she needed screen breaks and never objected to them. On October 25, 2022, Plaintiff received a positive performance evaluation stating she exceeded all expectations.
During Plaintiff’s employment, Emanuel Fowler, a veteran with mental health issues and property resident, regularly visited the leasing office and made Plaintiff uncomfortable by asking about her relationship status and calling her inappropriate names when she objected. Plaintiff reported these concerns to management, including Weber. Fowler was eventually evicted after Plaintiff’s termination.
On January 18, 2023, a resident reported that maintenance technician Nando Mandriquez acted inappropriately during a work order visit, sitting on her couch, asking about her relationship status, and requesting a kiss. Plaintiff drafted a memorandum regarding sexual harassment and emailed it to General Manager Cayce Lay and Regional Director Matt Peters on February 12, 2023. The email detailed the resident incident and inappropriate conduct by Mandriquez toward Plaintiff, including an inappropriate text message on September 14, 2022, kissing her neck without permission, and sitting on her lap in December 2022.
According to Defendant’s policy, all employee complaints regarding discrimination and harassment would be promptly investigated with results provided to both complainant and accused. However, Plaintiff never received investigation results regarding her email complaint. Peters testified he forwarded Plaintiff’s email to vice president Mark Miller, who took no further action. Lay testified she only sent the email to management without conducting any investigation beyond the initial resident incident.
Plaintiff requested and received approval for medical leave from March 1 through March 16 for eye surgery. During the week of March 13, Lay marked Plaintiff as a no-call/no-show despite Plaintiff’s approved leave status. Lay was not at work that week but made this notation upon her return.
On March 21, 2023, Plaintiff had a conversation with Brett Williams expressing frustration about representing the property due to sexual harassment incidents. On April 15, 2023, Williams emailed Lay documenting their conversation, claiming Plaintiff said she did not trust him, did not believe his leasing knowledge, would not listen to him, did not care about her job, and was zero percent invested in her position. Plaintiff disputed making these statements.
On March 23, Plaintiff participated in a discussion with Williams, Weber, Meagan Tesser, and another leasing agent about ongoing trash service issues. The parties disputed whether Plaintiff’s vocal statements were at appropriate workplace volume. Weber’s report about this incident was emailed to Lay on April 14, 2023, after Plaintiff’s termination. No managers gave Plaintiff verbal or written discipline regarding the March 21 or 23 incidents at the time they occurred.
Lay consulted with Peters and recommended Plaintiff’s termination due to her attitude. On March 27, Lay terminated Plaintiff citing confrontations with Weber and Cameron and Plaintiff’s attitude affecting the office. The personnel action form indicated termination due to Plaintiff’s “attitude effecting position.”
Evidentiary Disputes
Defendant objected to consideration of Plaintiff’s affidavit claiming it constituted a sham affidavit containing hearsay, arguing Plaintiff attempted to create fact issues regarding supervisor conversations. The court found no basis for concluding the affidavit was a sham issue of fact since Defendant made no assertion that it conflicted with deposition testimony, and determined the affidavit would be considered if based on personal knowledge.
Legal Analysis
Title VII Sex Discrimination
The court analyzed Plaintiff’s sex discrimination claim under the McDonnell Douglas burden-shifting framework since no direct evidence existed. While Defendant conceded Plaintiff belonged to a protected class and suffered adverse employment action, it argued she failed to show circumstances giving rise to an inference of sex discrimination.
Plaintiff argued she was a victim of unlawful sex-based stereotyping and treated worse than similarly situated men. The court found that Plaintiff’s pretrial order did not preserve a claim based on failure to conform to stereotypical gender norms, instead stating she was stereotyped as a “complainer” and treated differently than males. Even considering this theory, Plaintiff failed to provide evidence that Defendant believed she failed to conform to gender norms, such as managerial statements that women should not complain or speak up.
Regarding differential treatment, Plaintiff compared herself to Mandriquez, arguing both were disciplined by the same supervisor under the same policies. However, the court found they were not similarly situated because they held different positions with different duties and engaged in conduct of different seriousness. Mandriquez received verbal warning for inappropriate sexual comments to a resident, while Plaintiff was terminated for alleged insubordination and refusal to accept supervision. The court determined the differences in conduct and employment roles were too vast to permit an inference of discrimination based on disparate treatment.
Title VII Retaliation
The court applied the McDonnell Douglas framework to Plaintiff’s retaliation claim. Defendant conceded the first two prima facie elements were met. For the third element requiring causal connection between protected activity and adverse action, the court found Plaintiff’s termination approximately six weeks after her sexual harassment complaint email satisfied the temporal proximity requirement for establishing causation.
Defendant asserted legitimate nondiscriminatory reasons for termination, including insubordination, yelling, and bad attitude toward workplace and supervisors. The burden then shifted to Plaintiff to demonstrate pretext. The court found Plaintiff presented sufficient evidence of pretext to create a jury question, noting that emails documenting the alleged misconduct were sent weeks after the conversations occurred and after Plaintiff’s termination. Lay never spoke to Plaintiff about the March 21 or 23 incidents prior to termination, suggesting failure to conduct fair investigation.
Additional evidence supporting pretext included Plaintiff’s positive performance evaluation, lack of prior discipline despite alleged policy violations, and Defendant’s explanation that discipline would not be helpful. The court noted a jury could find this explanation implausible given that Plaintiff was never told she violated policies or needed behavioral correction. Furthermore, there was no evidence Defendant investigated or disciplined Mandriquez after Plaintiff’s complaints about his conduct toward her.
ADA Discrimination
The court analyzed Plaintiff’s ADA discrimination claim under McDonnell Douglas, with Defendant challenging the first and third prima facie elements. To establish disability, Plaintiff needed to show recognized impairment, identify major life activities affected, and demonstrate substantial limitation of those activities.
While Defendant did not dispute Plaintiff’s vision impairment affecting seeing, it disputed whether the impairment substantially limited this major life activity. The court found Plaintiff failed to establish her burden, noting the only evidence was retinal detachment, corrective surgeries, need for periodic screen breaks, and 98% vision restoration in her right eye. Plaintiff argued her vision was worse during employment but provided no evidence showing significant restriction compared to the average person. The court determined it could not infer substantial limitation merely from Plaintiff’s condition without evidence of how her vision was significantly restricted compared to the general population.
ADA Retaliation
Although the court determined Plaintiff was not actually disabled, it noted she could proceed with ADA retaliation if she had reasonable good faith belief in her disability status. Defendant did not raise arguments concerning Plaintiff’s good faith belief, so the court presumed she could proceed with the retaliation claim.
For the prima facie case, Defendant did not dispute that Plaintiff engaged in protected activity by taking medical leave or that termination constituted adverse action. Defendant argued no causal connection existed, but the court found the close temporal proximity between Plaintiff’s March 1-16 approved leave and March 27 termination supported an inference of causation.
After Defendant presented legitimate nondiscriminatory reasons for termination, the burden shifted to Plaintiff to demonstrate pretext. The court found Plaintiff presented sufficient evidence, particularly noting that she sought and received approval for leave from March 1-16, yet Defendant marked her as no-show during the week of March 13. Significantly, Defendant told the Kansas Human Rights Commission that one ground for termination was Plaintiff’s failure to appear during the week of March 13, despite now arguing it retroactively allowed PTO use and did not terminate her for taking leave.
The court granted Defendant’s motion for summary judgment on Plaintiff’s Title VII sex discrimination claim and ADA discrimination claim, and denied the motion with respect to Plaintiff’s Title VII retaliation claim and ADA retaliation claim.
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