Cash v. Lockheed Martin Corporation

684 F. App'x 755
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 13, 2017
Docket16-2194
StatusUnpublished
Cited by4 cases

This text of 684 F. App'x 755 (Cash v. Lockheed Martin Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cash v. Lockheed Martin Corporation, 684 F. App'x 755 (10th Cir. 2017).

Opinion

ORDER AND JUDGMENT *

Scott M. Matheson, Jr. Circuit Judge

In this employment discrimination case, Carter Cash appeals from a district court order that granted summary judgment to his former employer, Lockheed Martin Corporation. 1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Mr. Cash worked for Lockheed Martin as an Electronic Technician III, “checking ... for work orders to be done on simulators, completing the work orders, and testing the simulators.” Aplt. App., Vol. II at 121. In 2011, Mr. Cash began wearing hearing aids to compensate for long-term hearing loss. He would occasionally turn them “all the way down” to minimize feedback from ambient noise. Id. at 207.

In July 2012, Mr. Cash’s supervisor, James Hutchinson, gave him a written warning for “performance-related issues ... ranging] from lack of communication with crew members,' lack of coordinating and assisting in maintenance efforts or crew work load with on-shift crew members, ignoring Contract Instructors for debriefs, ignoring phone calls in the group areas, and refusing to perform tasks directed by the Assistant Maintenance Lead.” Id. at 176. Mr. Hutchinson noted that Mr. Cash’s work output was “substantially lower” than his coworkers. Id. at 177. This warning also referred to a complaint that Mr. Hutchinson had received reporting that Mr. Cash would “turn the volume of [his] hearing aids off or down and ... not answer common phones.” Id. at 176. Mr. Hutchinson said these issues affected “productivity and morale,” id. at 177, and he warned Mr. Cash that without “significant[] improve[ment],” there would be *758 “further disciplinary action, up to and including termination,” id. at 178.

In response to this warning, Mr. Cash asked his audiologist, Dr. Jonni Gardey, for a letter outlining the “treatment of people with hearing loss.” Id. at 139. In a letter dated August 13, 2012, Dr. Gardey stated that Mr. Cash had “significant hearing loss.” She offered “strategies ... 'for successful communication with Mr. Cash and anyone with hearing loss.” Id. at 218. She asked that the strategies be “review[ed] ... with others in [the] organization and all employees.” Id. Mr. Cash forwarded the letter to Human Resources Representative Lisa Hardin, who directed Mr. Hutchinson to hold a meeting with Mr. Cash’s coworkers “to help ... communicate better with [him].” Id. at 214. At the meeting, Mr. Cash’s coworkers were receptive to Dr. Gardey’s strategies but “their feeling was that [Mr. Cash’s] hearing was selective.” Id.

In January 2013, Mr. Hutchinson gave Mr. Cash a second written warning, specifying “continued unsatisfactory performance.” Id. at 181. Mr. Hutchinson noted that Mr. Cash was “the least productive crew member” in terms of work orders and that he had charged time “to supporting the contract without [providing] the supporting documentation of work performed.” Id. at 180. Consequently, Mr. Hutchinson placed Mr. Cash “on a 90 day Performance Improvement Plan (PIP),” which authorized termination at any time for not meeting the PIP’s expectations. Id. at 181.

During the PIP period, Mr. Cash allegedly “found evidence” that three of his coworkers had inflated their work-order numbers. Id. at 205. He informed his union. He also told Mr. Hutchinson, stating that “[everybody is doing it,” but Mr. Cash declined to provide specific details. Id. at 160. Mr. Hutchinson reviewed the matter and “notiee[d] an anomaly where there w[ere] overlaps on some of the work orders for the man-hour[ ] counts.” Id. at 161. He “sent a correction to the union for that data, but it didn’t affect the numbers overall.” Id.

On March 4, 2013, Mr. Cash complained to Ms. Hardin that (1) Safety Engineer Steve Schray had yelled in his ear on a Friday, sending him to the emergency room the following Sunday; and (2) Crew Chief Booker Smith was silently mouthing words, turning his back to Mr. Cash during meetings, and speaking softly when Mr. Cash asked him to repeat words. Ms. Hardin investigated. As to Mr. Schray’s alleged misconduct, two witnesses told Ms. Hardin “that Mr. Schray had just slightly raised his voice when [Mr. Cash] did not respond to an initial ‘good morning’ greeting, and that Mr. Schray had never yelled at [Mr. Cash].” Id. at 183. As for Mr. Smith’s alleged misconduct, Mr. Cash presented no evidence on how many times this occurred, Ms. Hardin was unable to find any witnesses who could corroborate Mr. Cash’s allegations, and Mr. Smith “denied ever ‘mouthing’ words to [Mr. Cash].” Id. Ms. Hardin concluded there was “no discrimination or inappropriate conduct,” and asked Mr. Cash if “he needed any accommodations for his hearing impairment.” Id. He requested none, and said he “could hear fine without his hearing aids.” Id.

By the end of the PIP period, Mr. Cash had improved in four designated categories of work performance (communication, training support, time recording, and performance of daily tasks), but he remained deficient in terms of productivity. Lockheed fired him, effective May 6, 2013. Mr. Cash filed a grievance, but it was denied.

Mr. Cash sued Lockheed in June 2015, alleging discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, as amended by the ADA *759 Amendments Act of 2008 (“ADA”), and retaliation in violation of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-33. 2 The district court granted summary judgment to Lockheed. In doing so, the court addressed three aspects of Mr. Cash’s ADA claim—failure to accommodate, hostile work environment, and discriminatory discharge.

On failure to accommodate, the district court noted that Mr. Cash had made only one accommodation request—Dr. Gardey’s letter—and Lockheed complied with her recommendations by convening a meeting of Mr. Cash’s coworkers and informing them of the listed strategies to facilitate communications with hearing impaired individuals. As for the hostile work environment issue, the court concluded that any harassment Mr. Cash endured was not sufficiently severe or pervasive to be actionable. Regarding discriminatory discharge, the court found that Lockheed’s decision to fire Mr. Cash for substandard performance was not a pretext for discrimination. Finally, turning to Mr. Cash’s FCA retaliation claim, the court concluded he had “offered no evidence that Lockheed terminated his employment because of [his] complaints” that coworkers were inflating their work time. Id. at 258. The court reasoned that “[m]ost, if not all, of [Mr.

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684 F. App'x 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cash-v-lockheed-martin-corporation-ca10-2017.