govinfo:USCOURTS-ksd-2_24-cv-02602-0

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS 
 
DONNA NEIL, 
 
 Plaintiff, 
 
v. Case No. 24-2602-JWB 
 
 
KMT WATERJET SYSTEMS, INC. and 
FLOW INTERNATIONAL CORPORATION, 
 
 Defendants. 
 
MEMORANDUM AND ORDER 
 
 This matter is before the court on Defenda nts’ motion for summary judgment (Doc. 86); 
Plaintiff’s motion to exclude the testimony of Ronald H. Saff, M.D. (Doc. 80); Plaintiff’s motion 
for spoliation sanctions (Doc. 83); and Plaintiff’s objections (Doc. 89) to the pretrial order. The 
motions are fully briefed and ripe for decision. (Docs. 87, 90, 91, 98, 101, 102, 103, 106.) For the 
reasons stated herein, Defendants’ motion fo r summary judgment (Doc. 86) is GRANTED IN 
PART and DENIED IN PART; Plaintiff’s motion to exclude the testimony of Dr. Saff (Doc. 80) 
is DENIED IN PART and DENIED WITHOUT PREJUDICE IN PART; Pl aintiff’s motion for 
spoliation sanctions (Doc. 83) is DENIED IN PART and DENIED WITHOUT PREJUDICE IN 
PART; and Plaintiff’s pretrial order objections (Doc. 89) are OVERRULED. 
I. Facts 
 The facts
1 set forth herein are material to the issues on summary judgment and are 
undisputed, or where disputed, viewed in the light most favorable to Plaintiff. This is an 
employment action brought under st ate and federal law. Donna Ne il (“Plaintiff”) brings this 
 
1 Plaintiff sets forth many additional facts in her response (Doc. 102 at 13–25), to which Defendants respond in their 
reply (Doc. 106 at 9–17). Many of these facts and responses are not disputes—in that the disputed fact is immaterial 
or argumentative. The additional facts and responses that are immaterial or argumentative will not be considered. 

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lawsuit against her former employer, KMT Wat erjet Systems, Inc. (“KMT”), and Flow 
International Corporation (“Flow”) (collectively, “Defendants”), both of which are subsidiaries of 
Shape Technologies, Inc. (“Shape”). Shape has been terminated as a defendant. (Doc. 34.) 
KMT operates a manufacturing facility in Ba xter Springs, Kansas. (Pretrial Order 
Stipulations, Doc. 77 at 2.) At that facility, KMT employs approximately 130 individuals. (Doc. 
87 at 4.) KMT hired Plaintiff as its human resources manager for that facility on or about October 
17, 2022. (Id.) The relevant employees during Plaintiff’s employment were as follows. Plaintiff’s 
direct supervisor was Glenda Madison (“Madison”), Flow’s HR Director of Americas, who in turn 
reported to Shelly Evoy (“Evoy” ), Flow’s vice president of Gl obal Human Resources. Michael 
Barber (“Barber”) served as KMT’s Managing Director for the Baxter Springs facility, and Darrick 
Thomas (“Thomas”) served as its Maintenance Manager. After Plaintiff’s termination, KMT hired 
Anthony Westfield (“Westfield”) as the new Baxter Springs HR Manager; Westfield also testified 
as Defendants’ corporate representative in this litigation. (Id. at 2–3.) 
KMT’s Baxter Springs facility consisted of several buildi ngs. The main building where 
nearly all of the 130 employees we re stationed was “Building 1.” ( Id.) The only other relevant 
building can best be described as an administrativ e building and is referred to as “Building 3.” 
(Id.) Plaintiff’s office was located in Build ing 1 and Madison’s in Building 3. Defendants 
described the distance between th e two buildings as a three- to five-minute walk and gave 
examples of the necessity for employees from the two buildings to regularly interact with each 
other. (Westfield Depo., Doc. 102-24 at 17:8–15; Barber Depo., Doc. 106-15 at 41:7–10.) 
On Plaintiff’s first day of work, Octobe r 17, 2022, she noticed and smelled what she 
believed to be mold in her office and began experiencing allergic r eactions and breathing 
difficulties. (Plaintiff Depo., Doc. 102-1 at 91:8–92:9.) Madison’s testimony supports this, as she 

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explained also having difficulty breathing while in Plaintiff’s office. (Madison Depo., Doc. 102-
7 at 48:7-14.) From the week she started th rough January 2023, Plain tiff’s symptoms required 
multiple visits to urgent care and medical centers, where she was prescribed rounds of antibiotics 
and steroids and treated for various respiratory and bronchial conditions. (Doc. 102-43.) Plaintiff 
first informed Madison and Evoy about the conditions of her office in October 2022 and continued 
raising those concerns with mu ltiple members of management through January 2023. (Plaintiff 
Depo., Doc. 102-1 at 95:18–99:8.) Despite those complaints, meaningful remediation of Plaintiff’s 
office would not come until January 2023—and even then, only partially. 
In January 2023, Plaintiff’s symptoms significantly worsened, and she sought treatment at 
a hospital in Oklahoma on three separate occasions. (Doc. 102-43 at 2–3.) During her January 5 
visit, she was diagnosed with generalized an xiety disorder (“GAD”), on January 10, she was 
diagnosed with Hashimoto’s dis ease, an autoimmune disorder affecting the thyroid and causing 
inflammation and muscle and joint pain, and she returned on January 19 for ongoing respiratory 
treatment. Plaintiff testified—and her medical records confirm—that these diagnosed conditions 
caused breathing difficulties, problems walk ing, concentrating, and sleeping, among other 
impairments. Plaintiff described these symptoms as re curring, both inside and outside of the 
workplace. 
On January 12, Plaintiff emailed Barber a nd Madison informing them of her ongoing 
“respiratory issues” since October and attributed them to her o ffice. (Doc. 102-6.) Specifically, 
she stated that she was under a do ctor’s care and requested an office change as a “reasonable 
accommodation.” ( Id.) Barber replied to the email statin g he needed Plaintiff in Building 1. 
Barber later testified that he wanted her pres ent there because he “didn’t want [Building 1 
employees] having to walk all the way over to” Building 3. (Barber Depo., Doc. 87-3 at 2–3.) 

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The next day, on January 13, Plaintiff submitted a formal Americans with Disabilities Act 
(“ADA”)2 accommodation request to Madison, asking to re locate her to an office in Building 3 
that was “without . . . mold toxicity,” because her health symptoms were being exacerbated. (Doc. 
102-8.) Madison approved her re quest on January 16, knowing Ba rber had previously told 
Plaintiff he needed her in Building 1. Madison testified th at she believed de nying the request 
without engaging in an interactive process would be inconsistent with ADA obligations. (Madison 
Depo., Doc. 102-7 at 34:14–37:15.) Madison wa s terminated on January 19, making Evoy 
Plaintiff’s direct supervisor. (Doc. 87 at 8.) The consequences of that personnel change were 
immediate: that same day, Barber told Plaintiff to return to her office in Building 1, effectively 
reversing the accommodation Madison had approved of just three days earlier. (Plaintiff Depo., 
Doc. 102-1 at 147:2–149:9.) The reversal is particularly notable given that Evoy, Plaintiff’s new 
supervisor, messaged her that sa me day acknowledging that Buildi ng 1 was “not likely helping 
matters” and was “possibly the cause” of Plaintiff's health problems. (Doc. 102-13 at 2–3.) 
After returning to her office in Building 1 on January 19, Plaintiff conducted an air quality 
test using a petri dish kit from Lowe’s which show ed visible mold growth after four days. (Doc. 
102-5.) On January 23, Plaintiff emailed Thom as and Barber and separately emailed Evoy, 
attaching photographs of the petri dish and describing the samples she had collected. (Id.) Evoy 
did not respond. (Doc. 102 at 17.) That same day, Plaintiff met with Barber, explained her health 
problems, and attributed it to mold exposure. (Plaintiff Depo., Doc. 102-1 at 113:17-116:4.) 
Barber instructed Plaintiff to stop investigatin g the mold issue and that he would have KMT’s 
maintenance manager, Thomas, conduct additional tests on and clean the o ffice. (Barber Depo., 
Doc. 106-15 at 8–10.) Thomas did so and wh ile inspecting, changed the HVAC filters and 
 
2 The governing law is the ADA Amendments Act of 2008 (“ADAAA”), and the court ap plies the amended statute 
and regulations. However, for ease of reference the court continues to use the term “ADA.” 

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conducted his own mold test. (Thomas Depo., Doc. 102-35 at 46: 17–47:17.) Thomas testified 
that his mold test showed no significant growth, but Plaintiff disputes this, noting that no records 
of the results Thomas allegedly collected exist in the record. ( Id. at 69:14-71:15.) Moreover, 
internal email correspondence from August 2023—sent between Robinson and Evoy, months after 
Plaintiff’s termination—shows Defendants’ own decision-makers acknowledging that Barber and 
Thomas had not taken Plaintiff’s mold complaints seriously and that nothing substantive had been 
done to address the issue. (Doc. 102-23; Robinson Depo., Doc. 102-17 at 48:7–50:13.) Consistent 
with that acknowledgment, it was not until Augus t 2023—nearly six months after Plaintiff went 
on leave and well after her termination—that De fendants first retained a professional firm, 
Springfield Quality Services, to conduct a formal mold assessment of Plaintiff’s office. (Doc. 87 
at 6; see also Doc. 102-38.) In the report’s summary, it is indicated that while no mold was 
observed, their tests discovered the presence of mold spores and recommended that the HVAC 
system associated with the office be “thoroughly cleaned.” (Doc. 102-38 at 2.) 
On February 16, 2023, Plaintiff again emaile d Evoy requesting appr oval to purchase air 
purifiers that could kill mold. (Doc. 102-45.) Evoy did not respond. With her health continuing 
to deteriorate, on February 20, Plaintiff sought workers’ compensation (“WC”) benefits and 
applied for short-term disability (“STD”) leav e through Defendants’ thir d-party administrator 
Symetra. (Doc. 102-11.) Plaintiff’s STD leave was approved through May 30, notably identifying 
an expected return to work date of July 2023. (Id.) 
Following the termination of Madison, Laura Robinson was hired to replace her as the new 
HR Director of Americas in March. (Doc. 87 at 10.) To cover Plaintiff’s on-site HR duties during 
her absence, Evoy and Robinson alternated traveling from their respective remote locations to the 
Baxter Springs facility every other week. In so doing, Defendants determined that the HR manager 

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position needed to be filled while Plaintiff was on her approved STD leave. Accordingly, on May 
1, 2023—while Plaintiff was still on approved STD leave—KMT hired Anthony Westfield as the 
new Baxter Springs HR Manager. (Doc. 102 at 18.) Westfield initially worked in the same 
Building 1 office Plaintiff previously occupied and moved to Building 3 in 2025. (Doc. 106 at 
12.) However, Westfield testified that nothing about officing in Building 3 prevented him from 
accomplishing the essential functions of his job. (Westfield Depo., Doc. 102-24 at 13:11–15.) 
On May 5, Plaintiff’s WC attorney mailed a letter to KMT that included an Independent 
Medical Evaluation Report (“IMER”) by Dr. Pedro Murati, dated April 20, 2023. (Doc. 102-10 at 
3–6.) The report opined that Plaintiff’s workplace was the prevailing factor in the development of 
her diagnoses of GAD, Hashimoto’s disease, and asthma-related symptoms. On May 8, Plaintiff 
mailed a letter3 to Defendants advising them that he r treating physician, Dr. Bradley Wajda, had 
provided this return-to-work date of July 15 and requested long-term disability (“LTD”) leave to 
bridge the gap between the May 30 expiration of her STD benefits and July 15. (Doc. 102-46.) 
The letter further stated that she had been “medically advised” to not return to Building 1 because 
of her reaction to the building’s environment. This advisement appears to have come from Dr. 
Wajda, whose May 5 treatment notes reflect an anticipated July 15 return-to-work date. (Doc. 87-
19.) 
 
3 Defendants dispute receiving the May 8 letter. (Doc. 106 at 8, 13.) “A rebuttable presumption of receipt does arise 
on evidence that a properly addressed piece of mail is placed in the care of the postal service.” Witt v. Roadway Exp., 
136 F.3d 1424, 1429–30 (10th Cir. 1998). Plaintiff claims in her affidavit to have satisfied that standard and attaches 
the letter. (Docs. 102-43 at 5; 102- 46.) “Because the presumption is rebuttable, however, evidence denying receipt 
creates a credibility issue that must be resolved by the trier of fact.” Witt, 136 F.3d at 1430. Defendants, likewise, 
have rebutted the presumption. Therefore, the court finds a genuine dispute as to a material fact exists and, in viewing 
the evidence in the light most favorabl e to Plaintiff, the court considers Defe ndants to have received the letter for 
purposes of this motion. Further, email correspondence from June 4–5 amongst Defendants as well as testimony 
indicates that they had knowledge of the information in the May 8 letter. (Doc. 102-47; Robinson Depo., Doc. 102-
17 at 31:16-32:10.) Thus, the court has no concerns viewing the letter as received by Defendants at this stage. 

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On May 31, Symetra received Pl aintiff’s application for LT D benefits and Robinson and 
Evoy were notified of the pending application. (Doc. 87-18 at 1–2.) On J une 4, Plaintiff again 
reached out to Evoy regarding Symetra’s LTD policy, this time by email; Evoy forwarded that 
email to Robinson. (Doc. 102-47.) However, Plaintiff received no response from either. Robinson 
testified that no one contacted Plaintiff about her return-to-wo rk date or LTD policy because 
Defendants’ attorneys had advised against doing so. (Robinson Depo., Doc. 102-17 at 32:25–
33:7.) Plaintiff therefore had no indication that he r employment was in jeopardy during this 
period—she had communicated a return date, applied for bridging leave, and heard nothing. 
While Plaintiff’s LTD application was pending, Robinson reviewed Plaintiff's leave status 
during the first week of June 2023, concluded that Plaintiff had exhausted her STD leave without 
returning to the facility, and determined that the HR Manager position needed to be filled 
permanently. ( Id. at 29:2–30:5.) Accordingly, Plaintiff was terminated eff ective June 30, by a 
letter dated June 28, 2023. (Doc. 102-20.) The te rmination letter stated, in relevant part: “We 
have completed a companywide audit of all employees on disability leave. At this time, you have 
exhausted your leave of absen ce and do not qualify for [the Family and Medical Leave Act 
(“FMLA”)]. Therefore, we ha ve filled your position.” ( Id.) The record, however, reflects 
conflicting explanations for Plaintiff’s termination that will be addressed in more detail below. 
In September 2023, Plaintiff filed a charge of discrimination with the Equal Employment 
Opportunity Commission (“EEOC”) and the Kansas Human Rights Commission and subsequently 
filed this action. (Docs. 102-28; 1.) On July 9, 2025, Plaintiff filed her first amended complaint 
(“FAC”) and brings four claims: failure to accommodate (“Count I”) and retaliation (“Count II”) 
both in violation of the ADA and two state law cl aims for wrongful termination in violation of 
public policy for workers’ compensation retaliation (“Count III”) and for whistleblowing (“Count 

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IV”). (Doc. 34.) The court will provide additional facts relevant to specific motions or arguments 
raised by the parties in their submissions. 
II. Analysis 
A. Spoliation Sanctions 
Plaintiff moves for spoliation sanctions agains t Defendants. (Doc. 83.) The motion has 
been fully briefed (Docs. 90, 98) and is denied in part and denied without prejudice in part. 
On June 28, 2023, Robinson, the Director of HR for Flow, sent Plaintiff a termination letter 
bearing the subject line “Leave Exhausted Empl oyment Separation.” (Doc. 83-17.) The letter 
stated, in part: “We have completed a companywide audit of all employees on disability leave. At 
this time, you have exhausted your leave of abse nce and do not qualify for [FMLA]. Therefore, 
we have filled your position.” (Id.) Subsequently, Robinson testified that she created “12 or 14” 
substantially identical termination letters for employees who had exhausted their leave at the same 
time that she created Pl aintiff’s. (Robinson Depo., Doc. 83- 16 at 20:23–22:7.) She went on to 
explain that she mailed those le tters to the other employees and stored the drafts on her laptop. 
(Id. at 24:17–27:8.) Eventually, when Robins on’s employment terminated in March 2024, she 
mailed the laptop back to Flow. ( Id.) To date, however, Defendants have been unable to locate 
these letters while simultaneously disputing their existence. 
Plaintiff sought these letters because she says they are central to her theory that her 
termination was pretextual. She contends that if Defendants really conducted a “companywide 
audit” resulting in terminations, the letters would reveal the circum stances surrounding their 
termination. (Doc. 83 at 17–18.) Specifically, Plaintiff hoped to explore whether comparably 
situated employees on disability leave were treated differently by examining the type and duration 
of leave used by other employees, whether they had return-to-work dates, and whether they, like 

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Plaintiff, were on workers’ compensation leave. (Id.) To support her assumption, Plaintiff points 
to the Defendants’ leave of absence report (Doc . 83-23) which, in combin ation with Westfield’s 
testimony, indicates that as of the date Plaintiff was ter minated, multiple other KMT employees 
were not terminated but had been on leave long er than Plaintiff and, importantly, longer than 
allowed under Defendants’ disability leave policy. (Westfield Depo., Doc. 83-18 at 65:2–68:2.) 
Plaintiff argues she is prejudiced because sh e is unable to use the letters to prove the 
retaliatory and discrimi natory nature of her termination. (Doc. 83 at 10, 16–17.) Plaintiff’s 
requested relief includes introduc ing evidence related to Defendant s’ failure to preserve the 
termination letters, that the court allow argument to the jury that such evidence allows the jury to 
infer that the termination letters would have been unfavorable, exclusion of evidence relating to 
Defendants’ proffered reason for her termination, and an adverse inference jury instruction. (Id.) 
Defendants first contend that no other employees were terminated as a result of the audit, 
and therefore the comparator ter mination letters Plaint iff seeks do not exist. (Doc. 90 at 4–5.) 
Because no comparators were terminated, Defendants argue Plaintiff cannot claim prejudice. (Id. 
at 5.) Alternatively, Defendants claim that if such termination letters did exist, their loss was the 
result of an IT error, not an act of suppression. ( Id. at 1.) Defendants acknowledge that certain 
draft documents stored on Robins on’s personal OneDrive were lost due to automated retention 
policies that IT failed to suspend following her departure. Finally, Defendants maintain that 
internal communications between Defendants’ employees responsible for Plaintiff’s termination 
confirm the decision to terminate was driven by her exhaustion of leave weeks before the 
termination letter was drafted, rendering the audit and letters themselves immaterial. (Id. at 2, 8.) 
“Spoliation sanctions are proper when (1) a party has a duty to preserve evidence because 
it knew, or should have known, th at litigation was imminent, a nd (2) the adverse party was 

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prejudiced by the destruction of the evidence.” E.E.O.C. v. JetStream Ground Servs., Inc. , 878 
F.3d 960, 964 (10th Cir. 2017) (internal quotations omitted). The court has the authority to impose 
sanctions if electronically stored information (“ESI”) that should have been preserved is lost 
because a party failed to take reasonable steps to preserve it. Fed. R. Civ. P. 37(e); Helget v. City 
of Hays, 844 F.3d 1216, 1226 (10th Cir. 2017) (“[A] district court has broad discretion in choosing 
an appropriate sanction for spoliation, the applicable sanction should be molded to serve the 
prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.”). 
The parties do not contest that Defendants had a duty to preserve evidence once the EEOC 
charge was received in Septem ber 2023, satisfying the first elem ent. The dispute centers on 
whether the termination letters ev er existed and, if they did, whet her Plaintiff was prejudiced by 
their loss. “[S]poliation of evidence causes prejudice when . . . the party claiming spoliation cannot 
present evidence essential to the underlying claim.” CCA Recordings 2255 Litig. v. United States, 
2021 WL 2212758, at *6 (D. Kan. June 1, 2021). It’s not enough to raise theoretical prejudice that 
the harm “cannot be known because the documents and information no longer exist.” Linnebur v. 
United Tel. Ass’n, No. 10-1379-RDR, 2011 WL 13238497, at *5 (D. Kan. Mar. 24, 2011) (citing 
Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1150 (10th Cir. 2009)). Thus, “a party seeking 
spoliation sanctions must present evidence that it was actually prejudiced.” Id. Plaintiff has not. 
The comparator information she contends the letters would have provided is substantially 
already in the record. Defendants produced the leave of absence report—the spreadsheet Robinson 
claims to have used in her audit and subsequent sending of termination le tters—which identifies 
all KMT employees on leave and the length of that le ave, at the time of Pl aintiff’s termination. 
(Docs. 83-22; 83-23.) In contra diction, Westfield testified that no employees were terminated 
because of the audit. (Westfield Depo., Doc. 83-18 at 168:15–169:10.) Such testimony is itself 

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comparator evidence: it purports to establish that other employees on comparable or longer leave 
were not terminated. Because comparator information is in the record, any prejudice from the 
absence of the letters is cumulative. Burlington N. & Santa Fe Ry. Co. v. Grant , 505 F.3d 1013, 
1032 (10th Cir. 2007) (finding no prejudice where same information was available). Accordingly, 
because actual prejudice was not demonstrated, the court need not reach the question of bad faith. 
Ad Astra Recovery Servs., Inc. v. Heath, 2020 WL 969762, at *7 (D. Kan. Feb. 28, 2020).4 
Because Plaintiff has not demonstrated actual prejudice, her motion for sanctions is denied. 
The court denies Plaintiff’s motion in so far as it seeks adverse-inference instructions, exclusion 
of evidence relating to Defendants’ proffered reason for her termination, attorney fees, and other 
monetary sanctions. The court denies the rema inder of Plaintiff’s mo tion without prejudice, 
allowing Plaintiff to introduce evidence related to Defendants’ failure to preserve the termination 
letters and decide issues of admission or exclusion of such evidence at the time of trial. 
B. Exclude Expert Testimony 
Plaintiff moves to exclude th e testimony of Dr. Ronald H. Saff, M.D. (Doc. 80.) The 
motion has been fully briefed (Docs. 91, 103) and is denied in part and de nied without prejudice 
in part.5 District courts have broad discretion to determine whether a proposed expert may testify. 
United States v. Nichols , 169 F.3d 1255, 1265 (10th Cir. 1999). Federal Rule of Evidence 702, 
which controls the admission of expert witness testimony, provides: 
A witness who is qualified as an expert by knowledge, skill, experience, training, 
or education may testify in the form of an opinion or otherwise if: 
(a) the expert’s scientific, technical, or other speciali zed knowledge will help the 
trier of fact to understand the evidence or to determine a fact in issue; 
 
4 Even assuming prejudice, Plaintiff has not demonstrated bad faith—the loss resulted from Defendants’ failure to 
suspend routine IT practices, which is insufficient for an adverse inference instruction. See Turner, 563 F.3d at 1149. 
5 Plaintiff requested the opportunity to address certain of Defendants’ statements of fact if the court denied her Daubert 
motion. (Doc. 102 at 1, n.1.) This request is denied. Plaintiff concedes she addressed those facts in her Daubert 
motion. Further, her motion was denied without prejudice in part, so Plaintiff can address those facts in the future if 
necessary. 

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(b) the testimony is based on sufficient facts or data; 
(c) the testimony is the product of reliable principles and methods; and 
(d) the expert has reliably applied the principles and methods to the facts of the 
case. 
 
Fed. R. Evid. 702. The proponent of expert tes timony bears the burden of showing the testimony 
is admissible. Hampton v. Utah Dep’t of Corr ., 87 F.4th 1183, 1201 (10th Ci r. 2023). First, the 
district court must determine whether the witness is qualified to render an opinion by knowledge, 
skill, training, experience, or education. Schulenberg v. BNSF Ry. Co., 911 F.3d 1276, 1282 (10th 
Cir. 2018)). If qualified, “the di strict court must satis fy itself that the test imony is both reliable 
and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.” 
Id. “Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-
helpful.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993) (citation omitted). A 
district court should focus on an expert’s methodology and not “the conclusions that they 
generate.” Id. at 595. But an expert’s conclusions ar e not immune from scru tiny, such as when 
“there is simply too great an analytical gap between the data and the opinion proffered.” General 
Elec. Co. v. Joiner , 522 U.S. 136, 146 (1997); Dodge v. Cotter Corp ., 328 F.3d 1212, 1222–23 
(10th Cir. 2003). 
On September 2, 2025, Dr. Saff, Defendants’ retained expert, rendered a 4-page opinion. 
(Doc. 80-18.) It boils down to the contention th at mold exposure did not cause Plaintiff’s health 
problems; rather, her problems were cause by a combination of the side effects of medication and 
psychiatric illnesses. ( Id.) As such, Dr. Saff opines that because mold exposure did not cause 
Plaintiff’s symptoms, moving her to Building 3 (her requested accommodation) would not have 
been effective. ( Id.) Finally, the opinion expresses “skepticism” surrounding Dr. Murati’s 
evaluation and opinion of Plaintiff done as part of her workers compensation claim in April 2023. 
(Doc. 80-12 at 2–6.) Plaintiff moves to exclude Dr. Saff’s testimony on the grounds it is irrelevant 

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because the medical cause of her symptoms is not an element of her claims. (Doc. 80 at 5.) 
Defendants respond arguing that Dr. Saff’s testim ony is relevant to refute the elements of 
Plaintiff’s claims. (Doc. 91 at 3–6.) 
First, the court finds Dr. Saff qualified to testify based on his knowledge, skill, training, 
experience, and education as indi cated in his report and that his opinion is reliable based on the 
records he has evaluated. (Doc. 80-18.) Turning to the relevancy of his opinion, at the outset, the 
court notes that it is not immedi ately clear whether Plaintiff’s motion seeks to exclude Dr. Saff’s 
testimony entirely or only specific aspects of his report with which the motion takes issue. (Doc. 
80.) One specific opinion Plaintiff points out is Dr. Saff’s opinion that mold in the workplace did 
not cause Plaintiff’s symptoms. ( Id. at 6–7, 10.) There can be no doubt that Dr. Saff’s opinion 
regarding the medical cause of Plaintiff’s symptoms is relevant and may assist the trier of fact. To 
be sure, Dr. Saff may not opine on ultimate legal issues—such as whether Plaintiff is a “qualified 
individual” or whether her requested accommodation was “reasonable” as those terms are defined 
by law. United States v. Schneider, 704 F.3d 1287, 1294 (10th Cir. 2013). However, the question 
of what medically caused Plaintiff’s symptoms is a factual predicate that underlies those 
determinations. If Plaintiff’s symptoms were not caused by mold exposure in her workplace, a 
jury could reasonably conclude that relocati ng her to Building 3 (her accommodation request) 
would not have enabled her to perform the essential functions of her job, rendering her unqualified 
under the ADA and unable to make a prima facie case. See Lincoln v. BNSF Ry. Co. , 900 F.3d 
1166, 1192 (10th Cir. 2018). Thus, Dr. Saff’s causation opinion is sufficiently tied to the facts at 
issue in this case, and Plaintiff’s challenges to its weight and credibility are properly addressed 
through cross-examination. Accordingly, the cour t denies the motion to exclude Dr. Saff’s 

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testimony without prejudice. However, Plaintiff is free to raise her objectio ns at a later, more 
appropriate juncture, such as through a motion in limine or during cross-examination at trial. 
Plaintiff also moves to exclude Dr. Saff’s testimony on the grounds that his opinion belongs 
solely before an administrative law judge (“ALJ”) under the Kansas Workers’ Compensation Act 
(“KWCA”), K.S.A. § 44-501 et seq ., because the KWCA provides the exclusive remedy for 
Plaintiff’s claims. (Doc. 80 at 8–10.) Defendants respond that the KWCA does not dictate the 
admissibility of evidence in a federal discrimination trial. (Doc. 91 at 6–8.) Plaintiff’s argument 
is meritless. The KWCA is a liability scheme, no t an evidentiary rule. It provides the exclusive 
remedy for claims arising from on-the-job injuries. K.S.A. § 44-508(f)(2)(B). Plaintiff’s ADA 
claims do not require proof of an on-the-job in jury; they require proo f of certain elements as 
defined by the ADA. See 42 U.S.C. § 12112; Aubrey v. Koppes, 975 F.3d 995, 1005 (10th Cir. 
2020). The KWCA’s exclusive-remedy provision has no bearing on wh ether a federal court 
adjudicating an ADA discrimination claim may h ear medical evidence. Plaintiff’s motion to 
exclude is denied to the extent it seeks to limit Dr. Saff’s te stimony under the KWCA. Having 
resolved these threshold issues, the court turns to Defendants’ summary judgment motion. 
C. Summary Judgment 
Defendants have moved for summary judgment on all of Plaintiff’s claims. (Doc. 86.) 
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute 
as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 
56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat 
an otherwise properly supported mo tion for summary judgme nt; the requirement is that there be 
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247– 48 (1986). 
“A fact is material if, under th e governing law, it could have an effect on the outcome of the 

15 
 
lawsuit. A dispute over a materi al fact is genuine if a rational jury could find in favor of the 
nonmoving party on the evidence presented.” Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th 
Cir. 2020) (quoting Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015)). Conclusory allegations 
are not sufficient to create a dispute as to an issue of material fact. Hall v. Bellmon, 935 F.2d 1106, 
1110 (10th Cir. 1991). The court views the eviden ce and all reasonable inferences therefrom in 
the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 
917, 927 (10th Cir. 2004). In cons idering a motion for summary judgm ent, the facts set forth in 
the motion must refer “with particularity to those portions of the record upon which” the moving 
party relies. D. Kan. R. 56.1(a). “All material facts set forth in the statement of the movant will 
be deemed admitted for the purpose of summary judgment unless specifically controverted by the 
statement of the opposing party.” Id. To properly dispute a proposed statement of material fact, 
the opposing party must “refer with particularity to those portions of the record upon which the 
opposing party relies.” D. Kan. R. 56.1(b)(1). Failure to properly controvert a proposed fact that 
is properly supported will result in a dete rmination that the fact is admitted. Coleman v. Blue 
Cross Blue Shield of Kan., Inc., 287 F. App’x 631, 635 (10th Cir. 2008) (finding that the “district 
court was correct to admit all fact s asserted in [the movants] summary judgment motion that are 
not controverted by a readily iden tifiable portion of the record.” ) (internal quotation and citation 
omitted). The court will address each of Plaintiff’s claims in turn. 
1. ADA Discrimination: Failure to Accommodate (“Count I”)6 
 
6 In Plaintiff’s response to the motion for summary judgment, she states the prima facie elements for both a disability 
discrimination claim and a failure to accommodate claim under the ADA, seemingly framing them as two claims. 
(Doc. 102 at 25–26.) However, in the remainder of her brief, she makes arguments and alleges facts relevant only to 
a failure to accommodate claim. Moreover, the pretrial orde r only lists a failure to accommodate claim. (Doc. 77.) 
So for clarity, the court holds that Plaintiff has not brought an ADA disability discrimination claim independent of her 
failure to accommodate claim. To the extent Plaintiff sought to bring such a claim, it is waived. Wilson v. Muckala, 
303 F.3d 1207, 1215 (10th Cir. 2002) (“[C]laims . . . not included in the pretrial order are waived.”). 

16 
 
Plaintiff asserts that Defendant discriminated against her in violation of the ADA by failing 
to provide a reasonable accommodation. The ADA prohibits “discriminat[ion] against a qualified 
individual on the basis of disability in regard to [the] other terms, condi tions, and privileges of 
employment.” 42 U.S.C. § 12112(a). Disc rimination under the ADA includes “not making 
reasonable accommodations to the known physical or mental limitations of an otherwise qualified 
individual with a disability who is an applicant or employee.” Id. § 12112(b)(5)(A). A failure to 
accommodate claim based on circumstantial evidence is evaluated under a modified McDonnell 
Douglas burden-shifting framework. Aubrey, 975 F.3d at 1005; Smothers v. Solvay Chemicals, 
Inc., 740 F.3d 530, 538 (10th Cir. 2014); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 
(1973). Under the first step, Plai ntiff must demonstrate that (1) she is disabled; (2) she is a 
qualified individual; (3 ) she requested a plausibly reas onable accommodation, and (4) the 
employer refused to accommodate her disability. Aubrey, 975 F.3d at 1005. Defendants move for 
summary judgment on the basis that Plaintiff cannot establish the first, second, or third prong of 
her prima facie case. (See Doc. 87 at 12–24.) 
Regarding the first prong, Defendants offer two arguments. First, th at Plaintiff is not 
disabled because her alleged disabiliti es are temporary a nd situational. ( Id. at 13.) Second, her 
alleged disabilities are unsupported by expert evidence. The court disagrees with both. 
To prove that she is disabl ed, Plaintiff must: “(1) have a recognized impairment; (2) 
identify one or more appropria te major life activities; and (3) show that the impairment 
substantially limits one or more of those activities.” Sanchez v. Vilsack, 695 F.3d 1174, 1178 (10th 
Cir. 2012). In determining whether Plaintiff has satisfied her burden, the court considers the nature 
and severity of the impairment, duration of impairment, and any permanent or long-term impact 
from the impairment. Id. 

17 
 
Plaintiff’s alleged impairments are anxiety, Hashimoto’s disease, and asthma. (Doc. 77 at 
20.) Defendants dispute whether Plaintiff’s impairmen ts substantially li mit concentrating, 
breathing, walking, caring for herself, or other major life activities because they are temporary and 
situational in that they were only triggered when Plaintiff was inside Building 1. (Doc. 87 at 13–
14.) In response, Plaintiff points to her worsening condition and evidence of the medical treatment 
she received in the months after beginning her STD leave during which she did not set foot in 
Building 1. (Doc. 102 at 28–29.) More over, Plaintiff points to the expanded scope of disability 
under the ADA to include “impairment[s] that [are] episodic.” 42 U.S.C. § 12102(4)(D); Brunner 
v. GN Bank, N.A. , No. 21-CV-02242-TC, 2023 WL 2474683, at *8 (D. Kan. Mar. 13, 2023) 
(holding episodic migraines are a di sability). In considering the medical interventions Plaintiff 
received during the period after she left Buildi ng 1, and the expanded definition of disability, the 
court finds genuine issues of material fact exis t as to whether Plaintiff’s asthma, anxiety, and 
Hashimoto’s disease constitute disabilitie s under the ADA. Sanchez, 695 F.3d at 1178–79 
(“[W]hether the impairment substantially limits a major life activity is ordinarily a question of fact 
for the jury”); Markham v. Boeing Co. , 2011 WL 6217117, at *3 (D. Kan. Dec. 14, 2011) 
(explaining the ADAAA “lowered the bar” on the disability inquiry by expanding its definition); 
see also 42 U.S.C. § 12102(2)(B) (major life activity in cludes endocrine function; thyroid is part 
of the endocrine system). 
Second, Defendants argue Plaintiff is not disa bled because her alleged disabilities lack 
expert evidence. (Doc. 87 at 14.) The court disa grees. While the Tenth Circuit has stated that 
“[e]xpert medical testimony may be used to establis h a plaintiff’s disability ” it went on to state 
that “[n]o language in the ADA or implementing regulations states that medical testimony is 
required.” Tesone v. Empire Mktg. Strategies , 942 F.3d 979, 996 (10th Cir. 2019) (citation 

18 
 
omitted). “Instead, courts assess the necessity of expert evidence on a case-by-case basis and 
consider the type of disability alleged.” Id. at 998. Accordingly, “whe n a plaintiff alleges an 
impairment that a lay jury can fathom without e xpert guidance, courts generally do not require 
medical evidence to establish an ADA disability.” Id. at 996 (internal quotations omitted); Felkins 
v. City of Lakewood , 774 F.3d 647, 652 (10th Cir. 2014) (expla ining that expert evidence is not 
required when the alleged impairments “are susceptib le to observation by an ordinary person.”). 
Plaintiff testified that her asthma symptoms affected her respiratory functions. (Doc. 102-43 at 2–
5.) As a result, she made multiple trips to me dical centers over the cour se of months and was 
diagnosed with her alleged disabilities and prescribed medications to address her asthma and other 
respiratory-related symptoms. (Id.; Doc. 102-10 at 7–10.) That testimony is supported by medical 
evidence, including an opinion from Dr. Pedro Murati in connectio n with Plaintiff's workers' 
compensation claim, where Dr. Murati opined th at Plaintiff was having respiratory problems 
related to asthma symptoms. (Doc. 102-10 at 3–6.) Further, Plaintiff's Pulmonologist, Dr. Ranes, 
confirmed that Plaintiff was experiencing the impairments she alleged. (Doc. 87-10.) Viewing the 
evidence in the light most favorable to Plaintiff, there are contested issues of material fact as to 
whether she is disabled under the ADA.7 
Defendants next challenge the second prong, that Plaintiff is not a qualified individual. 
“[T]he ADA defines ‘qualified in dividual’ as ‘an individual w ho, with or without reasonable 
accommodation, can perform the essential functi ons of the employment position that such 
individual holds or desires.’” Lincoln, 900 F.3d at 1192 (quoting 42 U.S.C. § 12111(8)). Plaintiff 
bears the burden of proving she is a “qualified individual.” Fears v. Unified Gov’t of Wyandotte 
Cnty./Kansas City, Kan., 2019 WL 4958219, at *3 (D. Kan. Oct. 8, 2019). Here, Defendants argue 
 
7 Because the court finds Plaintiff has satisfied the first prong of her prima facie claim by showing she is disabled, the 
court need not address Defendants’ argument regarding whether Plaintiff is “regarded as” disabled. (Doc. 87 at 15.) 

19 
 
that Plaintiff is not “qualified” because she co uld not perform an essential function: physical 
attendance in Building 1. (Doc. 87 at 17–19.) In response, Plaintiff disputes physical presence in 
Building 1 as an essential function of her HR manager position. (Doc. 102 at 31–33.) 
Courts must determine whether a function is essential by considering: (1) the employer’s 
judgment; (2) the job description; (3) the time spent performi ng the function; (4) the work 
experience of those who previously held the pos ition; and (5) the work experience of those who 
currently hold the positions. Adair v. City of Muskogee , 823 F.3d 1297, 1307 (10th Cir. 2016) 
(citing 29 C.F.R. § 1630.2(n)(3)). While the Tenth Circuit instructs not to second guess employers’ 
judgment on job-related functions, the “employer’s judgment is not conclusive evidence.” 
E.E.O.C. v. Picture People, Inc ., 684 F.3d 981, 997 (10th Cir. 2012); Davidson v. Am. Online, 
Inc., 337 F.3d 1179, 1191 (10th Cir. 2003) (“[E]mpl oyer may not turn every condition of 
employment . . . into . . . an essential job function.”) (internal citation and quotation omitted). The 
Tenth Circuit has held physical presence to be an essential job function in the absence of evidence 
showing “that the attendance requirement was not job-related, uniformly enforced, [or] consistent 
with business necessity.” Davis v. PHK Staffing LLC , 2023 WL 8757073, at *3 (10th Cir. Dec. 
19, 2023) (internal quotations omitted). Here, Plaintiff has come forward with such evidence. 
The job description does require on-site presence. (Doc. 102-41 at 5–6.) It further provides 
that “[r]emote work is less than 10% per month.” ( Id.) As Defendants point out, it is necessary 
for HR representatives to be readily available to employees. (Doc. 87 at 3–4.) Thus, had remote 
work been Plaintiff’s only request, it likely would have eliminated an essential function rendering 
Plaintiff unqualified. But it was not. Plaintiff so ught relocation of her office to Building 3, next 
to Building 1. (Doc. 102-6 at 2.) Defendants’ corporate representatives described the buildings’ 
proximity as a three- to five -minute walk. (Westfield Depo ., Doc. 102-24 at 17:8–15; Barber 

20 
 
Depo., Doc. 106-15 at 41:7–10.) More over, the record establishes that payroll employees based 
in Building 3 routinely interacted with Building 1 employees simply by walking between the two 
buildings. (Westfield Depo., Doc. 102-24 at 17:8–15; Barber Depo., Doc. 106-15 at 41:7–10.) 
Finally, Plaintiff’s replacement Anthony Westfield confirmed that his job description does not 
require him to work in Building 1 and that working in Building 3 does not interfere with his ability 
to perform his job. (Westfield Depo., Doc. 102-24 at 13:3–22.) The court also notes that Plaintiff's 
accommodation requests were not limited to relocation—she repeatedly asked Defendants to 
address the mold conditions in Building 1 itse lf through testing, prof essional cleaning, and 
remediation. Had Defendants reme diated the mold, Plaintiff coul d have remained in Building 1 
and performed her duties without any reduction in on-site presence. Acco rdingly, Plaintiff has 
shown that a reasonable jury co uld find that the Building 1 attendance requirement for HR 
managers was not uniformly enforced nor consiste nt with business necessity given the proximity 
between buildings.
8 
Finally, Defendants challenge the third pron g, that Plaintiff requested a reasonable 
accommodation. On or about January 12 and 1 3, 2023, Plaintiff requested an accommodation, 
both through email and a formal ADA accommodation re quest form, that her office be moved to 
Building 3. (Docs. 102-8; see also 102-6.) Later, on or about May 8, Plaintiff again requested her 
office be moved and for a two-week extension of leave to bridge the gap between her STD leave 
 
8 Defendants argue Plaintiff is estoppe d from claiming she was a “qualified individual” because she simultaneously 
represented to the Social Security Administration, her short-term disability carrier Symetra, and the workers’ 
compensation system that she was disabled and unable to work during the same period she now claims she could have 
performed her job with accommodations. (Doc. 87 at 22–23.) This defense is not present in the pretrial order. As 
Plaintiff correctly points out, affirmative defenses not properly preserved in the pretrial order are waived. (Docs. 102 
at 2; 77 at 21–22.) Accordingly, Defendant’s estoppel argument is waived. Wilson, 303 F.3d at 1215. However, even 
if the defense were not waived, it would fail on the merits. See Fox v. GMC, 247 F.3d 169, 177–78 (4th Cir. 2001) 
(holding that applying for benefits within a workers’ compensation claim “does not estop a plaintiff from making a 
subsequent ADA claim”). 

21 
 
expiring and her doctor’s return -to-work date. (Doc. 102-46.) 9 Defendants asse rt that Plaintiff 
failed to request a reasonable accommodation because she could not guarantee regular attendance. 
(Doc. 87 at 19–22.) Under the ADA, the employee must request a “reasonable accommodation.” 
Aubrey, 975 F.3d at 1005. “[A] brief leave of absence for medical treatment or recovery can be a 
reasonable accommodation.” Robert v. Bd. of Cnty. Comm’rs of Brown Cnty ., 691 F.3d 1211, 
1217–18 (10th Cir. 2012). However, “[t]here are two limits on the bounds of reasonableness for 
a leave of absence.” Id. at 1218. First, “[t]he employee must provide the employer an estimated 
date when [she] can resume [her] essential duties.” Id. Second, “[a] leave request must assure an 
employer that an employee can perform the essential functions of [her] position in the near future.” 
Id. (internal quotations omitted). Thus, an accommodation is unreasonable if the request for leave 
is of an indefinite dura tion or the employee cannot provide a return date. Id. at 1216; Hudson v. 
MCI Telecommunications Corp ., 87 F.3d 1167, 1168 (10th Cir. 1996) (finding unpaid leave of 
indefinite duration unreasonable as an accomm odation). Further, accommodation requests are 
unreasonable if they seek irregular attendance or a leave of ab sence exceeding six months. Punt 
v. Kelly Servs., 862 F.3d 1040, 1051 (10th Cir. 2017); Hwang v. Kan. State Univ., 753 F.3d 1159, 
1162 (10th Cir. 2014). 
Here, Defendants argue Plaintiff failed to request a reasonable accommodation for two 
reasons. (Doc. 87 at 19.) First, Defendants co ntend that Plaintiff never provided a definitive 
return-to-work date. According to Defendants, the only date Plaintiff ever offered—which was 
July 15, 2023, communicated in her May 8, 2023, letter—was not a fi rm return-to-work date but 
merely the treating physician’s aspirational goal—Dr. Wajda’s treatment notes reflect that he was 
 
9 To the extent Plaintiff argues that working from home was a reasonable accommodation outlined in her May 8 letter 
(Doc. 102-46), that request is not reas onable under the circumstances because th e job description clearly states that 
on-site presence is required (Doc. 102-41 at 5–6). 

22 
 
“aiming for” Plaintiff to return on that date. ( Id.; Doc. 87-19.) Second, Defendants argue that 
even if Plaintiff could have returned to work by July 15, her request for two additional weeks of 
leave after May 30 and her suggestion that she would have “unpredictable” flares from her medical 
conditions, which could render he r “incapacitated for days,” both independently rendered her 
request unreasonable because the ADA does not re quire employers to to lerate unpredictable 
attendance. (Doc. 87 at 21–22.) 
In response, Plaintiff argues her accommodation requests were reasonable. (Doc. 102 at 
33.) As to the sufficiency of her return-to-work date, Plaintiff contends that her May 8 letter 
sufficiently provided Defendants with a definite date of July 15, 2023, and asked only for a brief 
bridge of long-term disability leave to cover the gap between the expiration of STD leave on May 
30 and that return date. ( Id. at 34–35.) Plaintiff ar gues that a short leave re quest of this kind is 
precisely the accommodation recognized as reasonable under Tenth Circuit authority because 
medical conditions are inherently dynamic. Plaintiff contends Defendants’ characterization of her 
leave as indefinite is improper because any earlier variability from her July 15 return date occurred 
within a period of approved STD leave. (Id. at 35–36.) 
The court concludes that Plaintiff has sufficiently requested a reasonable accommodation 
to satisfy the third prong. Be ginning with the leave accommoda tion, the record shows that 
Plaintiff’s STD leave expired on May 30, 2023. Well in advance of that date, on May 8, Plaintiff 
proactively mailed a letter to Defendants notifying them that her treating physician had provided 
a return-to-work date of July 15, 2023, and requesting long-term disability leave (because her STD 
leave had expired) to bridge the gap between May 30 and July 15. (Id. at 46; see Doc. 87-19.) As 
to Defendants’ argument that Dr. Wajda’s notes re flect only that they were “aiming for” July 15 
rather than definitively releasing Plaintiff, this does not undermine the sufficiency of her request. 

23 
 
The law requires only that an employee “provide the employer an estimated date when [she] can 
resume [her] essential duties.” Robert, 691 F.3d at 1218. An estimate is all that is required—and 
indeed, Defendants acknowledge as much. (Doc. 106 at 21.) The letter indicates a return-to-work 
date of July 15, 2023, which satisf ied this standard. Accordingl y, Plaintiff’s leave request was 
neither indefinite nor unreasonable under Robert. Moreover, as Plaintiff correctly points out, short 
leave requests are reasonable when, for example, they “may allow an employee sufficient time to 
recover from an injury or illness.” Herrmann v. Salt Lake City Corp., 21 F.4th 666, 677 (10th Cir. 
2021) (quoting Cisneros v. Wilson , 226 F.3d 1113, 1129 (1 0th Cir. 2000), overruled on other 
grounds by Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356 (2001). That is the very reason 
Plaintiff sought an additional two weeks. 
As discussed previously, the request to relo cate to Building 3, when taking into account 
the proximity between Buildings 3 and 1, combined with th e current arrangement where 
Defendants’ HR manager works from Building 3, establish that Plaintiff’s request was a reasonable 
one. (Westfield Depo., Doc. 106-3 at 10:18–13:5.) In sum, the court finds that Plaintiff has 
sufficiently established a prima facie case for failure to accommodate under the ADA. 
Defendants argue that even if a prima facie case is established, summary judgment is proper 
because Plaintiff was responsible for the interactive process involving her accommodation request 
breaking down. (Doc. 87 at 23–24.) “When an employee requests an accommodation for a 
qualifying disability, the [ADA] requires employers to participate in an ‘interactive process’ with 
the employee to determine a mutually suitable accommodation.” Brigham v. Frontier Airlines, 
Inc., 57 F.4th 1194, 1201 (10th Cir. 2023). Here, Defendants’ arguments that Plaintiff caused the 
interactive process to break down are merely a restatement of their unreasonable accommodation 
argument. But this is the type of disagreement for which the interactive process exists. The fact 

24 
 
that Defendants viewed Plaintiff’s requests as unreasonable does not mean she abandoned the 
process; it means the parties disagreed, which is the condition that the interactive process is 
designed to resolve. Aubrey, 975 F.3d at 1007 (neither party may create or destroy liability simply 
by asserting the other caused a breakdown). Here, Defendants dispute only the appropriateness of 
Plaintiff’s requested accommodatio ns—not whether she participated in the process at all. The 
distinction matters: the former is a disagreement the interactive process is designed to resolve; the 
latter is a reason to find a breakdown. As such, Plaintiff has come forwar d with specific facts, 
supported by admissible evidence, sufficient to make a prima facie case as to her ADA failure to 
accommodate claim. 
If Plaintiff makes a prima facie showing, the bur den shifts to Defendants to articulate a 
“legitimate, nondiscriminatory reason” for terminating her. DePaula v. Easter Seals El Mirador, 
859 F.3d 957, 970 (10th Cir. 2017). If the employer does so, the burden shifts back to Plaintiff to 
demonstrate that Defendants stated r eason is a pretext for discrimination. Id. Here, Defendants 
assert that they have articulate d such a reason. Specifically, the decision to terminate was made 
based on a neutral, company-wide policy that be cause Plaintiff’s STD leave expired on May 30, 
2023, and she did not return to the facility, she was absent and coul d be terminated. (Doc. 87 at 
29–30.) The court finds that Defend ants have articulated a legit imate, nondiscriminatory reason 
for Plaintiff’s termination sufficient to shift the burden back. 
“A plaintiff may show pretext by demonstrating the proffered reason is factually false, or 
that discrimination was a primary fa ctor in the employer’s decision.” DePaula, 859 F.3d at 970 
(internal quotations omitted). “This is often accomplished by revealing weakness, implausibilities, 
inconsistencies, incoherences, or contradictions in the employer’s proffered reason, such that a 
reasonable fact finder could deem the employer’s reason unworthy of credence.” Id. (internal 

25 
 
quotation marks omitted). Plaintiff argues that Defendants’ purported reason for her termination 
is pretext by pointing to multiple inconsistencies in Defendants’ proffered reasons. (Doc. 102 at 
47–48.) First, the termination letter referenced a “companyw ide audit of all employees on 
disability leave.” (Doc. 102-20.) And Robinson testified that she draf ted and mailed 12 to 14 
termination letters to other em ployees who exceeded their allowe d disability leave. (Robinson 
Depo., Doc. 102-17 at 20:23–26:10.) Yet Defenda nts simultaneously c ontend that no other 
employees were terminated because of an audit, they cannot locate any of the 12 to 14 termination 
letters, and they argue that th e letters may never have existed. (Westfield Depo., Doc. 102-24 at 
168:15–171:9.) In further contradiction, Evoy testifie d that Plaintiff was not terminated for job 
abandonment but rather because she had not pr ovided clearance from a physician. (Evoy Depo., 
Doc. 102-9 at 102:14-103:2.) And in the letter to the Kansas Department of Labor (“KDOL”) 
answering an inquiry regarding Plaintiff’s application for unemployment benefits, Robinson stated 
that Plaintiff had “not communi cated any intention to return” to work and was therefore 
terminated. (Doc. 102-22 at 4.) However, R obinson testified that Plaintiff’s position was 
eliminated and there was no position to which she could return; she also testified that Westfield 
was not hired to fill Plaintiff's position. (Robinson Depo., Doc. 102-17 at 32:7-18, 37:1-9.) 
Westfield, by contrast, testified he was hired to replace Plaintif f. (Westfield Depo., Doc 102-24 
at 7:9–11.) These varying explanations by Defendants present an inconsistent theme. 
And assuming the “failure to return from leav e” rationale were a single consistent theme 
for Plaintiff’s termination; there is still a genuine dispute of material fact. Defendants’ attendance 
policy expressly excludes those on workers’ comp ensation leave from being considered absent, 
which Westfield testified incl udes appeals. (Doc. 102-29 at 53–54; Westfield Depo., 102-24 at 
160:20–163:22.) And as of May 31, 2023, Evoy and Robinson both knew that Plaintiff’s workers’ 

26 
 
compensation appeal was pending. Defendants respond that these contradictory interpretations of 
policy highlighted by Plaintiff merely reflect different descriptions and not different reasons, and 
that “semantics cannot be turned into a triable issue.” (Doc. 106 at 26.) But the court disagrees. 
A jury could reasonably conclude from this c onstellation of explanati ons that Defendants’ 
proffered reason for the termination is “imp lausible” or “unworthy of credence.” DePaula, 859 
F.3d at 970; Gonzalez, 101 P.3d at 1178 (holding to survive summary judgment the plaintiff must 
demonstrate an issue of material fact is “unworthy of belief”). 
Additional support for pretex t comes from th e circumstances surrounding Defendants’ 
reactions to Plaintiff’s accommodation requests and the timing of her termination. First, the 
temporal proximity between Plaintiff engaging in protected activities and her termination supports 
pretext. Proctor, 502 F.3d at 1213 (“[W]e may consid er evidence of te mporal proximity—
typically used to establish a prima facie case—in analyzing pretext…”). In deposition testimony, 
Robinson describes Barber’s reaction to Plaintiff’s persistent complaints about mold in her office 
as “not tak[ing] her serious” because he never sent the mold test to a lab. (Robinson Depo., Doc. 
102-17 at 48:7-50:11-13.) See Tadlock v. Marshall Cty. HMA, LLC , 603 F. App’x 693, 702–03 
(10th Cir. 2015) (explaining that a decisionmaker’s reactions to frequent accommodation requests 
combined with a termination one month later lends support to the pretext analysis). Combined, 
this evidence permits the reasonable inference that Defendants’ decision-makers grew frustrated 
with Plaintiff’s mold complaints and repeated accommodation requests, and that the exhaustion of 
her approved leave, while seeking an extension, provided a convenient—but pretextual—basis to 
terminate her. The record raises legitimate que stions about whether Plai ntiff’s termination was 
driven by genuine business needs or a desire to terminate a persistent complainant. Accordingly, 

27 
 
Plaintiff has come forward with specific facts, supported by admissible evidence, that would lead 
a reasonable jury to find in her favor regarding her ADA failure to accommodate claim. 
2. ADA Retaliation (Count II) 
Next, Plaintiff brings an ADA retaliation cl aim alleging Defendants terminated her after 
she requested accommodations. Lacking direct evidence, Plaintiff must establish this claim under 
the burden-shifting framework in McDonnell Douglas. Thus, Plaintiff must first establish a prima 
facie case by showing (1) that she engaged in protected opposition to discrimination, (2) “that a 
reasonable employee would have found the challenged action materially adverse,” and (3) “that a 
causal connection exists between the protected activity and the materially adverse action.” Hansen 
v. SkyWest Airlines , 844 F.3d 914, 925 (10th Cir. 2016). Af ter so doing, the burden shifts to 
Defendant “to come forward wi th a legitimate, non-retaliatory rationale for the adverse 
employment action. If the defendant does so, the plaintiff must show that the defendant's proffered 
rationale is pretextual.” Id. Here, Defendants only dispute causation. (Doc. 87 at 25.) 
Plaintiff must show a causal connection be tween her protected activity and the adverse 
action. Although retaliatory moti ve may be inferred when an adverse action closely follows 
protected activity, a long period of time will not suffice to show a causal connection. See Ward v. 
Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014) (“If the protected conduct is closely followed by the 
adverse action, courts have often inferred a causal connection.”). Looking at what courts have 
determined to be long versus shor t time periods, the “T enth Circuit has held that a one and one-
half month period . . . may, by itself, es tablish causation.” Fisher v. Basehor-Linwood Unified 
Sch. Dist. No. 458, 460 F. Supp. 3d 1167, 1205–06 (D. Kan. 2020). By contrast, three months is 
insufficient. Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004). 

28 
 
Plaintiff’s termination on J une 30, 2023, is a materially adve rse action. The parties just 
dispute when Plaintiff engaged in a protected activity. Defendants argue the last protected activity 
occurred in February 2023 when Plaintiff reque sted an accommodation and went on STD leave. 
(Doc. 87 at 25.) Plaintiff, on the other hand, argues she engaged in a protected activity when she 
requested long-term disability leave in her May 8 letter. (D oc. 102 at 42.) An accommodation 
request can constitute protected activity, so long as the request seeks accommodation that would 
allow an employee to perform the essential functions of her position. Herrmann, 21 F.4th at 676. 
Plaintiff’s May 8 letter does just that and theref ore would be considered engaging in a protected 
activity. (Docs. 102-43 ¶ 22; 102-46.) Thus, Plaintiff has presented evidence of protected activity 
(May 8) followed by an adverse action (June 30) sufficient to infer causation. The approximately 
seven-week gap between the May 8 letter and the June 30 termination falls comfortably within the 
range courts have recognized as supporting an inference of causation. Fisher, 460 F. Supp. 3d at 
1205–06. And as previously discussed, to the extent Defendants refute receiving the May 8 letter 
(Doc. 106 at 8, 13), Plaintiff has produced ev idence of email correspondence between Evoy and 
Robinson on June 4–5 that refl ects their awareness of Plaintif f’s long-term disability claim 
indicated in the May 8 letter. (Doc. 102-47.) In any event, whether Defendants received the letter 
is a fact question for the jury; what’s clear is that in early June, the decision-makers had knowledge 
of Plaintiff’s request for a leave extension—which amounts to a protected activity. 
Defendants next argue that there was an intervening cause for Plaintiff’s termination, that 
is, her failure to return to work at the conclusion of her STD leave. (Doc. 87 at 25–26.) In support, 
Defendants cite Parker v. United Airlines, Inc., 49 F.4th 1331, 1339 (10th Cir. 2022). However, 
that case does not support Defendants’ position. In Parker, the Tenth Circuit st ated that “[o]ne 
way an employer can ‘break the causal chain’ . . . is for another person . . . higher up in the decision-

29 
 
making process to independen tly investigate the grounds fo r [the adverse action].” Id. Here, 
Defendants cite no evidence of an independent decision-maker conducting their own investigation 
into Plaintiff’s termination. Defendants otherwise fail to point to any evidence breaking the causal 
connection between Plaintiff’s re quest for extended le ave and her termina tion. Plaintiff has 
therefore made a sufficient prima facie case. Fu rther, for the reasons previously discussed, the 
court finds that Defendants have set forth a legitimate reason for termination, but the court has also 
determined that there is evidence of pretext to survive summary judgment. (Supra Section III.C.1.) 
Accordingly, Plaintiff has come forward with specific facts, supported by admissible evidence, 
that could lead a reasonable jury to find in her favor regarding her ADA retaliation claim. 
3. Wrongful Termination – Workers’ Compensation Retaliation (Count III) 
Next, Plaintiff brings a workers’ compensation retaliation claim. Plaintiff alleges she was 
terminated for requesting and ex ercising the benefits to which she was entitled under Kansas 
workers’ compensation laws in violation of K.S.A. § 44-501 et seq . Under Kansas law, an 
employer cannot discharge an employee for filing a worker s’ compensation claim. Foster v. 
Alliedsignal, Inc., 293 F.3d 1187, 1192 (10th Cir. 2002). De fendants move for dismissal on the 
grounds that (1) Plaintiff cannot prove causati on and (2) the terminat ion was motivated by 
Plaintiff’s inability to perform an essential function of her job. (Doc. 87 at 26–27.) 
Similar to Plaintiff’s ADA retaliati on claim, Kansas also applies the McDonnell Douglas 
burden-shifting framework to claims of retaliato ry discharge for filing a workers’ compensation 
claim. Gonzalez–Centeno v. N. Cent. Kan. Reg’l Juvenile Det. Facility , 101 P.3d 1170, 1177 
(2004). “To establish a prima facie case for retaliation under Kansas law, a plaintiff must establish 
four elements: ‘(1) The plaintiff filed a claim fo r workers compensation bene fits or sustained an 
injury for which he or she might assert a futu re claim for such benef its; (2) the employer had 

30 
 
knowledge of the plaintiff’s workers compensation claim injury; (3) the employer terminated the 
plaintiff’s employment; and (4) a causal connection existed between the protected activity or injury 
and the termination.’” Proctor v. United Parcel Serv ., 502 F.3d 1200, 1212 (10th Cir. 2007) 
(quoting Gonzalez, 101 P.3d at 1177). Further, a plaintiff in federal court who opposes summary 
judgment in a retaliatory discharge case based on Kansas law “must set forth evidence of a clear 
and convincing nature that, if believed by the ultimate factfinder, would establish that plaintiff was 
more likely than not the victim of illegal retaliation by [her] employer.” Macon v. United Parcel 
Serv., Inc., 743 F.3d 708, 713 n.2 (10th Cir. 2014). 
Defendants challenge causation on two grounds. First, that the approximately four-month 
gap between Plaintiff’s February 2023 worker s’ compensation filing and her June 30, 2023, 
termination is insufficient to establish causation. (Doc. 87 at 26.) Kansas courts assess causation 
by first asking whether the protect ed activity and adverse action ar e closely connected in time. 
Rebarchek v. Farmers Coop. Elevator & Mercantile Ass’n , 35 P.3d 892, 899 (Kan. App. 2001); 
White v. Tomasic, 69 P.3d 208, 212 (2003) (“Close temporal proximity between . . . the filing of a 
workers compensation claim and the adverse em ployment action may be highly persuasive 
evidence of retaliation.”). A pe riod of one and one-half months may itself establish causation, 
while a period of three months, st anding alone, is insufficient. Fisher, 460 F. Supp. 3d at 1205–
06; Meiners, 359 F.3d at 1231. Plaintiff argues that he r protected activity ought to include her 
ongoing litigation and appeal of the denial of her workers’ compensation claim—of which 
Defendants had knowledge at least as late as May 31, 2023. (Docs. 102-50; Westfield Depo., 102-
24 at 185:23–187:23.) However, th e issue of whether an employe e’s ongoing participation in 
workers’ compensation proceedings—as distinct from the original filing—constitutes independent 
protected activity has not been squarely addressed. See Macon, 743 F.3d at 712 (recognizing only 

31 
 
the filing of a claim as protected activity); Proctor, 502 F.3d at 1212 (same). In line with these 
precedents, the court holds that Plaintiff engaged in a protected activity only at the time she filed 
her workers’ compensation claim in February 2023. 
Standing alone, then, the four-month gap be tween the February filing and the June 
termination is not sufficient to establish causa tion. Plaintiff can, howev er, come forward with 
additional evidence. As the Kansas Supreme Court held in Hill v. State, a plaintiff may establish 
a prima facie case of retaliatory discharge even where temporal proximity is insufficient on its 
own, if the adverse action occurred “at the defendants’ first opportunity to act.” 448 P.3d 457, 476 
(2019). That is the s ituation here. Plaintiff’s STD l eave expired on May 30, 2023. Defendants 
terminated Plaintiff on June 30, 2023—a month after her approved leave ran out. This one-month 
gap, taken in the context of Defendants’ docum ented awareness of Plai ntiff’s ongoing workers’ 
compensation appeal and internal discussions to terminate Plaintiff that took place in the first week 
of June (Doc. 102-50 at 2), is sufficient to establish causation. Rebarchek, 35 P.3d at 899 
(“[C]laimant’s prima facie case is not an onerous burden…”). 
Defendants’ contention that Plaintiff was on an unauthorized absence after May 31 because 
her approved leave had ended also raises a genuin e dispute of fact. De fendants’ own attendance 
policy excluded those on workers’ compensation leave from the definition of “absence.” (Doc. 
102-29 at 53–54.) And when asked about the po licy, Westfield testified that workers’ 
compensation leave encompasses the period when an employee whose workers’ compensation 
benefit has been denied challenges that denial. (Westfield Depo., Doc. 102-24 at 160:20–163:22.) 
As of May 31, 2023, Plaintiff’s workers’ compensation appeal was pending. Accordingly, Plaintiff 
raises a genuine dispute as to whether she was “absent” under Defendant s’ attendance policy at 
the time of her termination. 

32 
 
Defendants’ second argument—that the termin ation was a legitimate business decision 
motivated by Plaintiff’s inability to return to work—fares no better. Defendants rely on Sanjuan 
v. IBP, Inc., for the proposition that an employer may defeat a workers’ compensation retaliation 
claim by demonstrating that the discharge was dr iven by the employee’s inability to perform the 
job. 275 F.3d 1290, 1295 (10th Cir. 2002). As discussed, Plaintiff has identified genuine disputes 
of fact as to whether she coul d have performed the essential f unctions of her pos ition with the 
accommodation of relocating to Building 3. Because a jury could find that Plaintiff could perform 
her job with the accommodation of working in Building 3, Defe ndants cannot avoid liability 
merely by pointing to her inability to work in Building 1. Plaintiff has therefore made a sufficient 
prima facie case. Further, for the reasons previously discussed, the court finds that Defendants 
have set forth a legitimate reason for termination, but the court has also determined that there is 
evidence of pretext to survive summary judgment. (Supra Section III.C.1.) Accordingly, Plaintiff 
has come forward with specific facts, supported by admissible evidence, sufficient to support her 
claim for wrongful termination in retaliation for filing a workers’ compensation claim. 
4. Wrongful Termination – Whistleblowing (Count IV) 
Plaintiff’s final claim is a wrongful termination for whis tleblowing. Plaintiff alleges she 
was retaliated against for reporting unsafe worki ng conditions. Under Kansas law, an employer 
may not fire an employee in retaliation for whistleblowing. Dickens v. Snodgrass, Dunlap & Co., 
872 P.2d 252, 262 (1994). Defendants move for dismi ssal on the grounds that Plaintiff failed to 
properly make a report and failed to prove causation. (Doc. 87 at 27–29.) 
To establish her prima facie case, Plaintiff must show, by clear and convincing evidence,
10 
“that (1) a reasonable person would have concluded that co-worker or company activities violated 
 
10 The heightened standard applicable to Plaintiff’s whistleblowing claim arises from Kansas common law and reflects 
the Kansas Supreme Court’s deliberate choice when it recognized the retaliatory discharge tort in Palmer v. Brown, 

33 
 
rules, regulations or laws pertai ning to public health, safety and general we lfare; (2) prior to 
termination, defendant knew that plaintiff reported such violations; and (3) defendant terminated 
plaintiff in retaliation for making the report.” Horinek v. Spirit AeroSystems, Inc ., 800 F. Supp. 
3d 1150, 1162 (D. Kan. 2025) (citing Palmer v. Brown , 752 P.2d 685, 689–90 (Kan. 1988); 
Goodman v. Wesley Med. Ctr., LLC, 78 P.3d 817, 821 (Kan. 2003)). Further, reported violations 
of the employer may be made to company management. Palmer, 752 P.2d at 689–90. If Plaintiff 
establishes her prima facie case, it is evaluated under the McDonnell Douglas framework. Id. 
Plaintiff concedes that neither the OSHA co mplaint filed in Janua ry 2023 by her then-
supervisor, Madison, nor the OSHA complaint she filed in August 2023, amount to proper 
reporting. (Doc. 102 at 44.) Rather, Plaintiff alleges her whistleblowing claim is premised on her 
informal complaints about mo ld that she made to Evoy, Thomas, Barber and others. ( Id.) This 
satisfies the reporting requirement. Palmer, 752 P.2d at 689–90 (“[T]ermination of an employee 
in retaliation for the good faith reporting . . . to [] company management . . . is an actionable tort.”). 
Next, Defendants argue that because these inte rnal communications occurred in January and 
February 2023 and Plaintiff was not terminated un til June, that there was no causation. (Doc. 87 
at 28–29.) Plaintiff renews her argument that despite sufficient temporal proximity, her discharge 
occurred at Defendants’ first opportunity to act. (Doc. 102 at 44.) The court agrees with Plaintiff. 
Plaintiff’s allegations underl ying this lawsuit revolve arou nd complaints regarding the 
alleged existence of mold in her office. As detailed above, it was precisely these mold complaints 
that set off the chain of events leading to Plaintiff’s termination. After repeatedly raising concerns 
about the mold in her office, particularly in January and Fe bruary 2023, Plaintiff’s medical 
 
242 Kan. 893, 7 52 P.2d 685, 690 (1988). Because the tort operates as a judicial exception to Ka nsas’s at-will 
employment doctrine, the Palmer court imposed a heightened evidentiary burden to prevent the exception from 
swallowing the rule and to screen out marginal claims before they reach the jury. See Palmer, 752 P.2d at 689–90. 

34 
 
condition deteriorated to the point she applied for and took STD leave. (Barber Depo., Doc. 102-
4 at 36:19–37:12, 20:2–22:3; Evoy Depo., Do c. 102-9 at 58:15–59:11, 104:3–15.) Her leave 
flowed directly from the very conditions she had been reporting. Although the formal termination 
did not occur until June 30, 2023, the record reflects that Defendants decided to terminate Plaintiff 
on or near May 31, 2023, the day her leave expired. ( See Docs. 102-20; 102-50.) Defendants’ 
termination of Plaintiff at th e first opportunity after her leav e concluded, combined with her 
documented health and safety-related complaints, is sufficient for a jury to infer her termination 
was in retaliation for those complaints. See Hill, 448 P.3d at 476. Moreover, the evidence of 
pretext discussed below provides additional support from which a jury could conclude that Plaintiff 
was terminated, at least in part, for her reporting. Plaintiff has therefore made a sufficient prima 
facie case. Further, for the reasons previously discussed, the court finds that Defendants have set 
forth a legitimate reason for termin ation, but the court has also dete rmined that there is evidence 
of pretext to survive summary judgment. (Supra Section III.C.1.) Accordingly, Plaintiff has come 
forward with specific facts, s upported by admissible evidence, su fficient to support a claim for 
wrongful termination in retaliation for whistleblowing. 
In summary, the record reflect s genuine issues of material facts and the court therefore 
denies Defendant’s motion for summary judgment as to liability for Counts I–IV. 
5. Damages 
Defendants move for summary j udgment as to damages on th ree grounds—that Plaintiff: 
(1) cannot recover compensatory or punitive damages on her ADA retaliation claim as a matter of 
law; (2) cannot recover punitiv e damages on her ADA failure to accommodate claim because of 
Defendants’ good faith; and (3) she failed to mitigate damages and is therefore barred from 
recovering back pay or front pay. (Doc. 87 at 33–36.) 

35 
 
Plaintiff brings her reta liation claim under 42 U.S.C. § 12203. She cannot recover 
compensatory or punitive damages under that section. The court will briefly explain the statute at 
issue. The ADA includes four primary subcha pters. The fourth includes the prohibition on 
retaliation. Id. § 12203. However, it does not include a remedial provision, unlike the other three. 
Subchapter I contains the remedial provisions for employment cases. Id. §§ 12111–12117. 
Because this is an employment retaliation case, th e remedial provisions of subchapter I are used. 
Id. §§ 12203(c); 12117. However, § 12117 is merely a passthrough, and provides: “[t]he powers, 
remedies, and procedures set forth in section[ ] . . . 2000e-5 . . . of this title shall be the powers, 
remedies, and procedures this su bchapter provides . . . to any person alleging discrimination on 
the basis of disability in violation of any provision of this chapter . . . concerning employment.” § 
12117(a). Finally, the remedies set forth in 42 U.S.C. § 2000e–5 (Title VII of the Civil Rights Act 
of 1964) are only equitable. However, the inquiry is not quite over. The Civil Rights Act of 1991 
expanded the remedies available in certain types of employment discrimination cases to include 
compensatory and punitive damages, including some Title VII and ADA plaintiffs. See 42 U.S.C. 
§ 1981a(a)(2). But that statute simply does not list ADA retaliation plaintiffs. See id. (“In an 
action brought . . . against a respondent . . . who vi olated the requirements of . . . section 102 of 
the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 
[42 U.S.C. § 12112](b)(5) . . ., the complaining party may recover compensatory and punitive 
damages . . . in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, 
from the respondent.”). Notably, § 1981a(a)(2) has no bearing on the damages available in ADA 
retaliation cases because it does not refer to the statute governing those claims (42 U.S.C. § 12203) 
like it does to the statute governing discrimina tion and reasonable acco mmodation claims (42 
U.S.C. § 12112). Accordingly, the search for the applicable remedies under § 12203 ends at § 

36 
 
2000e–5. It appears Congress did not intend to allow compensatory and puni tive damages for 
retaliation claims under § 12203; otherwise, they would have said so. Although the Tenth Circuit 
has not decided whether those damages are avai lable for retaliation claims under the ADA, well-
reasoned authorities conclude they are not. See, e.g., Israelitt v. Enter. Servs. LLC, 78 F.4th 647, 
657–60 (4th Cir. 2023); Alvarado v. Cajun Operating Co ., 588 F.3d 1261, 1270 (9th Cir. 2009); 
Kramer v. Banc of Am. Sec., LLC , 355 F.3d 961, 965 (7th Cir. 2004); Sink v. Wal-Mart Stores, 
Inc., 147 F. Supp. 2d 1085, 1100 (D. Kan. 2001); Boe v. AlliedSignal Inc., 131 F. Supp. 2d 1197, 
1202 (D. Kan. 2001); Zarco v. Book & Ladder, LLC, No. 24-2091-JWB, 2025 WL 3550600, at *5 
(D. Kan. Dec. 11, 2025) (“Caselaw w ithin this district has [sim ilarly] found compensatory and 
punitive damages to be unavailable remedies for ADA retaliation.”). Consistent with the statute’s 
text, Defendants are entitled to summary judgme nt on Plaintiff’s ADA reta liation claim, to the 
extent it requests compensatory and punitive damages. 
Plaintiff also objects to the pretrial order disallowing punitive and compensatory damages 
as part of her ADA retaliation claim. (Doc. 89.) Her objections are essentially a regurgitation of 
the arguments in her response to Defendant’s motion for summary judgment seeking to bar those 
damages. (Doc. 102 at 49.) Those objections are likewise overruled, but the court will briefly 
address them.11 Plaintiff argues that Defendants waived their right to challenge the availability of 
compensatory and punitive damages by failing to plead it as an affirmative defense and, 
alternatively, failing to move to strike or dismiss them at an ear lier stage. Plaintiff’s arguments 
 
11 Plaintiff argues that the standard of review is de novo under Fed. R. Civ. P. 72(b), contending that the magistrate’s 
exclusion of compensatory and punitive damages from the pretrial order was dispositive. (Doc. 89 at 3–5.) This court 
has previously held that a magistrate’s ruling excluding punitive damages from the pretrial order is a non-dispositive 
matter reviewed under the “clearly erroneous or contrary to law” standard. Slash F. Cattle Co., LLC v. Agridyne, 
LLC, No. 23-CV-1197-JWB, 2025 WL 3635768, at *2 (D. Kan. Dec. 16, 2025). The “contrary to law” standard 
permits district courts to review purely legal determinations made by magistrate judges and to modify or set aside if 
the order “fails to apply or misapplies relevant statutes.” Id. (quoting Walker v. Bd. of Cty. Comm’rs of Sedgwick Cty., 
2011 WL 2790203, at *2 (D. Kan. July 14, 2011)). Here, the magistrate judge properly applied the relevant statutes. 

37 
 
reduce to the contention that Defendants failed to put her on notice of the statutory unavailability 
of these damages. It is Plaintiff’s responsibility, not Defendants, to know what the law authorizes. 
Nor were Defendants required to plead the unava ilability of compensatory and punitive damages 
as an affirmative defense under Fed. R. Civ. P. 8(c). As Defendants correctly point out, the issue 
is a legal one and it was raised at a pragmatically sufficient time without prejudice to Plaintiff, 
who needed no discovery on the text of a federal statute. (Doc. 101 at 2–5.) Plaintiff also directs 
the court’s attention to a series of cases affirming jury verdicts that included compensatory and 
punitive damages on ADA retaliation claims. (Doc. 89 at 11.) But none resolved the threshold 
legal question of whether such damages are stat utorily authorized; each addressed only whether 
the evidence was sufficient to support the damages awarded. Plaintiff’s objections are overruled. 
Defendants next argue that Plaintiff cannot recover punitive damages on her ADA failure 
to accommodate claim because of Defendants’ good faith. (Doc. 87 at 34.) To sustain a claim for 
punitive damages, Plaintiff must show Defenda nt “act[ed] with malice or with reckless 
indifference to the plaintiff's federally protected rights.” Kolstad v. American Dental Ass’n , 527 
U.S. 526, 534 (1999); 42 U.S.C. § 1981a(b)(1). To survive summary judgment “(1) there [must 
be] sufficient evidence for the jury to decide whether an employer intentionally and illegally 
discriminated on the basis of a disability and (2) there is evidence that the employer knew the 
requirements of the ADA.” E.E.O.C. v. Heartway Corp., 466 F.3d 1156, 1169 (10th Cir. 2006). 
Addressing first the knowledge requirement, Plaintiff makes many arguments that a jury 
could find Defendants knew they were violati ng her ADA rights. (Doc. 102 at 49–51.) One has 
merit. Plaintiff po ints to the ADA accommodation request she submitted on January 13, 2023. 
(Doc. 102-8.) This evidence carries weight becaus e, had the relevant decisionmakers seen it, a 
reasonable jury could infer that Defendants were on notice of Plaintiff’s federally protected rights. 

38 
 
Wal-Mart, 187 F.3d at 1246 (finding a jury could conclude that the employer discriminated in the 
face of a perceived risk where the employer’s agent testified as to familiarity with the ADA). All 
decision makers, Barber, Evoy, and Robinson, testif ied that they had not seen Plaintiff’s ADA 
request. (Barber Depo., Doc. 106-15 at 26: 21–30:6; Evoy Depo., Doc. 106-4 at 75:17–25; 
Robinson Depo., Doc. 106-11 at 57:23–58:14.) That testimony is refuted, however, by Madison, 
who received the ADA request and approved it on January 16, 2023. (Madison Depo., Doc. 102-
7 at 34:14–35:15.) Madison’s testimony indicated that she communicated what she perceived as 
a risk to Barber and Evoy that Defendants were violating Plaintiff’s rights under the ADA by not 
accommodating her. (Id. at 35:16–38:16.) Accordingly, there is a genuine dispute as to whether 
Defendants “knew the requirements of the ADA.” Heartway Corp., 466 F.3d at 1169. 
Plaintiff must also present evidence that Defendants’ conduct rose to the level of malice or 
reckless indifference to her federally protected rights. Praseuth, 406 F.3d at 1254. The court finds 
Plaintiff has demonstrated a dispute of fact on this issue. “The requisite level of recklessness [to 
support punitive damages] can be inferred from management’s participation in the discriminatory 
conduct.” Adakai v. Front Row Seat, Inc. , 125 F.3d 861 (10th Cir. 1997) (unpublished). Here, 
Defendants’ managers conduct could be inferred by a jury to show reckless indifference. 
In turn, Defendants argue that their good-fa ith compliance effort s—including Thomas’s 
inspection and HVAC cleaning, the pur chase and installation of HEPA air purif iers at Plaintiff’s 
request, and Plaintiff’s temporary relocation and remote work—negate any inference of malice or 
reckless indifference. (Doc. 87 at 34.) To show good faith “an em ployer must at least 1) adopt 
antidiscrimination policies; 2) make a good faith effort to educate its em ployees about these 
policies and the statutory pr ohibitions; and 3) make good fa ith efforts to enforce an 
antidiscrimination policy.” McInnis v. Fairfield Communities, Inc ., 458 F.3d 1129, 1138 (10th 

39 
 
Cir. 2006) (internal quotation and citation omitted). Under Kolstad, an employer who makes good-
faith efforts to comply with federal law may avoid vicarious punitive liability even where a 
manager acted with malice. 527 U.S. at 545–46. But that defense is available only where the 
employer made such efforts—and whether it did is itself a contested factual question here. First, 
Plaintiff disputes that Defendant s acted in response to her comp laints, pointing to evidence that 
Thomas did not clean the vents until well after her initial comp laint. (Thomas Depo., Doc. 102-
35 at 46:17–47:17.) Plaintiff contends that HEPA air purifiers were never purchased, noting that 
Evoy never responded to her February 16, 2023 em ail requesting them, which Evoy disputes. 
(Doc. 102-45 at 2; Evoy Depo., Doc. 102-9 at 104:3–22.) The authorized temporary relocation is 
similarly disputed: Barber denied the request outright on January 13, Madison overrode that denial 
on January 16, and Barber ordered Plaintiff b ack to Building 1 the moment Madison was 
terminated on January 19. In all, because the very measures Defendants invoke as evidence of 
good faith are themselves dispute d, the court cannot resolve good fait h as a matter of law at this 
stage. When there are material issues of disputed facts, ques tions of good faith compliance are 
properly decided by the jury. Accordingly, Defendants’ motion for summary judgment on 
Plaintiff’s request for punitive damages under Count I is denied without prejudice. 
Finally, Defendants argue that Plaintiff failed to mitigate damages and is therefore barred 
from recovering economic damages in the form of back pay or front pay. (Doc. 87 at 35.) Plaintiff 
counters Defendants’ argument on the grounds that Defendants waived this affirmative defense by 
omitting it from the pretrial or der. (Doc. 102 at 1–2.) The court agrees. As Defendants 
acknowledge, they bear the burden of proving failure to mitigate, making it an affirmative defense 
subject to waiver. McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000). As 
with Defendants’ estoppel defense, the failure to mitigate defense is an affirmative one that 

40 
 
Defendants were required to incl ude in the pretrial order. Wilson, 303 F.3d at 1215 (“[C]laims, 
issues, defenses, or theories of damages not included in the pretrial order are waived.”). 
Defendants’ failure-to-mitigate defense does not appear in the pretrial order (Doc. 77) and 
Defendants offer no explanation for its absence. Accordingl y, the defense is waived, and 
Defendants are not entitled to summary judgment on that basis. 
In summary, the court summarizes its rulings as follows. Defendants’ motion for summary 
judgment (Doc. 87) is granted in pa rt and denied in part. It is denied as to liability on Counts I–
IV; granted as to compensatory and punitive damages on Count II; denied without prejudice as to 
punitive damages on Count I; and denied as to back pay and front pay. 
III. Conclusion 
 THEREFORE, Defendants’ motion for summa ry judgment (Doc. 86) is GRANTED IN 
PART and DENIED IN PART; Plaintiff’s motion to exclude the testimony of Ronald H. Saff, 
M.D. (Doc. 80) is DENIED IN PART a nd DENIED WITHOUT PREJUDICE IN PART; 
Plaintiff’s motion for sanctions for spoliation of evidence (Doc. 83) is DENIED IN PART and 
DENIED WITHOUT PREJUDICE IN PART; and Plaint iff’s objections (Doc. 89) to the pretrial 
order (Doc. 77) are OVERRULED. 
IT IS SO ORDERED. Dated this 22nd day of May, 2026. 
 __s/ John W. Broomes________________ 
 JOHN W. BROOMES 
 CHIEF UNITED STATES DISTRICT JUDGE 
 
 

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