Labor & Employment Law Daily Wrap Up, DISCRIMINATION—D. Kan.: Leasing agent, terminated shortly after taking medical leave, advances retaliation claims, (Jun 3, 2025)

By Tulay Turan, J.D.

The leasing agent was not disciplined for any alleged policy violations prior to her termination.

A leasing associate, who suffered from eye issues, can proceed to trial with her Title VII and ADA retaliation claims where she was terminated a few days after complaining about sexual harassment and less than two weeks after taking medical leave. A federal district court in Kansas ruled that a jury could find the company’s explanation for her termination—that she was insubordinate by yelling and having a bad attitude—was not credible. However, the court granted summary judgment to the company on her sex and disability discrimination claims because she failed to establish prima facie cases (Zarco v. Book and Ladder, LLC, No. 24-2091-JWB (D. Kan. June 2, 2025)).

Book and Ladder, a property management company, hired the employee as a guest experience associate in July 2022. Prior to her employment, she suffered a retinal detachment in her right eye and developed cataracts in both eyes. She underwent surgery to re-attach her right retina prior to her employment and regained 98 percent of vision in that eye. She testified her visual impairments did not interfere with her ability to perform her job but that she did need to take breaks from the computer screen.

Sexual harassment. During the associate’s employment, a resident reported that the property’s maintenance technician had sexually harassed her. The associate emailed a memo of the incident, along with similar incidents that occurred between herself and the technician, to her supervisor and the regional director. The company investigated the incident with the resident, but not the incidents with the associate. The technician received a verbal warning and was told he had to take sexual harassment training.

Time off. The associate sought and received time off for additional eye surgery from March 1 through 16. However, because she did not come to work the week of March 13, her supervisor considered her a no-show because she did not think the associate had requested the time off prior to her leave, but rather, the company had retroactively granted the leave.

Complaints about harassment. On March 21 and 23, the associate had conversations with leasing managers about the sexual harassment incidents she had experienced and about ongoing issues with trash service at the property. The parties disputed whether the associate’s statements were at an appropriate volume for the workplace, but she was not disciplined for any policy violations. However, her supervisor believed she had an attitude that was causing a negative effect on the workplace.

Termination,charges filed. A few days later, Book and Ladder terminated the associate due to the conversations and her change in attitude affecting the office. Thereafter, she filed a discrimination charge with the Kansas Human Rights Commission and the EEOC, and later she filed this action alleging Title VII and ADA claims of sex and disability discrimination and retaliation. Book and Ladder filed a motion for summary judgment on all claims.

No prima facie case. Granting Book and Ladder’s motion for summary judgment on the associate’s sex discrimination claim, the court found she failed to establish a prima facie case because she did not show her termination took place under circumstances giving rise to an inference of sex discrimination.

The court rejected the associate’s argument that her complaining about her treatment to the leasing managers was viewed as her being nonconforming to gender norms because women should be quiet and demure. She failed to point to any evidence that this was Book and Ladder’s belief or position, such as a statement by a manager that women should not complain or speak up. Without any evidence that the company believed she failed to conform to stereotypical gender norms, she could not establish a prima facie case.

Not similarly situated. Likewise, she could not establish a prima facie case via her allegations of differential treatment from the maintenance technician. The differences in their alleged conduct and their employment roles were too vast for the court to find that they were similarly situated. The technician’s conduct involved inappropriate sexual conduct with a resident and the associate while the associate’s conduct involved insubordination and refusals to take direction from a supervisor. The technician’s conduct was not sufficiently similar to hers to permit an inference of discrimination on the basis of disparate treatment.

Title VII retaliation. Turning to the associate’s Title VII retaliation claim, the court denied Book and Ladder’s motion for summary judgment because a jury could find the company’s explanation for her termination—that she was insubordinate by yelling and having a bad attitude—was not credible. There were factual disputes about what occurred on March 21 and 23, and the emails sent to her supervisor regarding these events were sent weeks after the conversations occurred and after her termination.

Positive evaluation. In addition, the only evaluation she received was positive, and she was not disciplined for any alleged policy violations prior to her termination. Book and Ladder’s explanation for the failure to discipline her was that such discipline would not have been helpful. The court said a jury could find such an explanation implausible in light of the fact she was never told she violated a policy and needed to correct her behavior. Further, a jury could find the company’s change in position after her good review was the result of the repeated complaints about sexual harassment.

Vision not substantially limited. Next, the court granted Book and Ladder’s motion for summary judgment on the associate’s ADA discrimination claim because she failed to show that her retinal detachment substantially limited her vision. The evidence showed her vision did not limit her ability to perform her job with the exception of taking breaks. There was no evidence regarding the number and frequency of breaks for the court to determine whether it was substantial. Further, there was no evidence from which the court could conclude that her ability to see was significantly restricted as compared to the average person. The court said it could not infer that her vision was substantially limited merely because of her condition. Thus, she failed to prove she was disabled and, as such, could not establish a prima facie case.

ADA retaliation. Finally, the court denied Book and Ladder’s motion for summary judgment on the associate’s ADA retaliation claim because she established pretext. As a threshold matter, the court noted that even though it had determined she was not actually disabled, she could proceed with an ADA retaliation claim because she had a reasonably good faith belief she had a disability.

Addressing her prima facie case, the court noted the company did not dispute that she engaged in protected activity by taking leave for her surgery and that termination was an adverse action. In addition, she showed a causal connection between the two events where she was terminated shortly after returning from medical leave.

Pretext. Although the company put forth a legitimate reason for her termination, she presented evidence of pretext. Despite having approval for leave, the company marked her as a no show during the week of March 13. The company told the KHRC that one of the grounds for her termination was her failure to appear at work that week. Therefore, a jury could conclude the company’s stated reasons for termination were not credible, the court concluded.

The case is No. 24-2091-JWB.

Judge: Broomes, J.

Attorneys: Brad K. Thoenen (HKM Employment Attorneys) for Brittany Zarco. Danielle N. Davey (Downing, Davey, Vokins & Mann) for Book and Ladder, LLC.

Companies: Book and Ladder, LLC

Cases: Discrimination SexDiscrimination DisabilityDiscrimination Retaliation KansasNews