Chappell v. SkyWest Airlines et al, No. 4:2021cv00083 - Document 66 (D. Utah 2023)

Court Description: MEMORANDUM DECISION AND ORDER granting 54 Defendant's Motion for Summary Judgment. Signed by Judge David Nuffer on 11/29/23 (alt)

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Chappell v. SkyWest Airlines et al Doc. 66 THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH RANDY T. CHAPPELL, Plaintiff, MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT v. Case No. 4:21-cv-00083-DN-PK SKYWEST AIRLINES, INC., District Judge David Nuffer Defendant. This case arises from the termination of Plaintiff Randy T. Chappell’s employment from Defendant SkyWest Airlines, Inc. (“SkyWest”). 1 Mr. Chappell alleges six causes of action against SkyWest: 2 (1) discrimination in violation of the Americans with Disabilities Act (“ADA”); 3 (2) discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); 4 (3) violation of § 510 of the Employee Retirement Income Security Act (“ERISA”); 5 (4) violation of the Rehabilitation Act of 1973 (“Rehabilitation Act”); 6 1 Complaint, docket no. 2, filed Aug. 11, 2021. 2 Mr. Chappell’s Complaint included two additional claims against SkyWest for fraud and civil conspiracy to commit fraud. Id. ¶¶ 112-127 at 16-18. These claims were dismissed with prejudice on stipulation of the parties. Order Granting Motion to Dismiss Two Claims With Prejudice, docket no. 53, filed June 21, 2023. 3 Complaint ¶¶ 58-69 at 9-11. 4 Id. ¶¶ 70-77 at 11-12. 5 Id. ¶¶ 78-88 at 12-13. 6 Id. at ¶¶ 89-96 at 14-15. Dockets.Justia.com (5) breach of contract; 7 and (6) negligence. 8 SkyWest seeks summary judgment on each of Mr. Chappell’s claims (“Motion for Summary Judgment”). 9 Because the undisputed material facts demonstrate that Mr. Chappell cannot establish the requisite elements for any of his claims, SkyWest’s Motion for Summary Judgment 10 is GRANTED. 11 Contents UNDISPUTED FACTS .................................................................................................................. 3 STANDARD OF REVIEW .......................................................................................................... 17 DISCUSSION ............................................................................................................................... 18 Mr. Chappell’s ADA claim fails ....................................................................................... 18 Mr. Chappell’s ADEA claim fails .................................................................................... 23 Mr. Chappell’s ERISA claim fails .................................................................................... 24 Mr. Chappell fails to establish ERISA interference.............................................. 25 Mr. Chappell fails to establish ERISA retaliation ................................................ 26 Mr. Chappell concedes his Rehabilitation Act claim fails ................................................ 27 Mr. Chappell’s breach of contract claim fails ................................................................... 28 Mr. Chappell’s negligence claim fails .............................................................................. 30 ORDER ......................................................................................................................................... 34 7 Id. at ¶¶ 97-105 at 15. 8 Id. at ¶¶ 106-111 at 16. 9 Defendant’s Motion for Summary Judgment (“Motion for Summary Judgment”), docket no. 54, filed June 28, 2023. 10 Id. 11 SkyWest was directed to prepare and submit a proposed memorandum decision and order granting its Motion for Summary Judgment. Notice of Court’s Intent to Grant Motion for Summary Judgment and Order Directing Defendant to Prepare and Submit Proposed Memorandum Decision and Order, docket no. 64, filed Oct. 13, 2023. Mr. Chappell was given the opportunity to objection to the form of SkyWest’s proposed memorandum decision and order. Id. Mr. Chappell did not file or otherwise submit any objection. 2 UNDISPUTED FACTS 12 1. Mr. Chappell was employed at SkyWest as a pilot until 2020. 13 2. Mr. Chappell agrees that it is never appropriate for a pilot to assume that something is safe. 14 3. Mr. Chappell admits that, as a captain, by regulation, he must take full responsibility for the safe operation of the aircraft on every flight. 15 4. Mr. Chappell and First Officer Justin Reber flew from St. George, Utah to Salt Lake City, Utah in the early morning on March 24, 2020 (the “Flight”). 16 5. The Weather Airport NOTAMs Threats brief (“WANT brief”) for the Flight did not include information that would have altered the flight crew that Gate #1 was close to a hazard. 17 6. Upon pushing back from the gate, Mr. Chappell made a roughly 270-degree turn to go to the runway. 18 12 Those facts, or portions thereof, identified in the parties’ briefing that do not appear in these Undisputed Facts are either disputed; not supported by cited evidence; not material; or are not facts, but rather, are characterization of facts or legal argument. Self-serving and conclusory assertions within an affidavit or declaration are not accepted for purposes of raising a genuine dispute of a material fact. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). Additionally, some of these Undisputed Facts are not material to the disposition of SkyWest’s Motion for Summary Judgment, but are nevertheless included to give background and context to the issues raised in the Motion for Summary Judgment. 13 Video-Recorded Deposition of Randy Thomas Chappell (“Chappell Depo.”) at 26:18-23, docket no. 54-1, filed June 28, 2023. 14 Id. at 49:12-15. 15 Id. at 52:6-18. 16 Id. at 62:10-64:10. 17 Investigation Findings at 1, docket no. 54-6, filed June 28, 2023. 18 Chappell Depo. at 86:16-23. 3 7. As he was making the turn, Mr. Chappell drove the airplane off the tarmac into dirt (the “Occurrence”). 19 8. The wheels of the airplane sank into the mud about 14 inches. 20 9. The aircraft got stuck and stopped moving. 21 10. Mr. Chappell testified that he assumed he had run over a drainage grate. 22 11. Mr. Chappell admits that he did nothing to confirm that it was a drainage grate, and testified that he did not believe he needed to confirm it was a drainage grate. 23 12. Mr. Chappell used the thrusters to get the plane moving again, thrusting up to 13. Mr. Chappell felt the plane shift from side to side; having reviewed video of this, 75%. 24 Mr. Chappell admits it looks “pretty dramatic.” 25 14. Mr. Chappell drove back onto the tarmac and proceeded to the runway, without stopping to check anything. 26 15. The Flight proceeded to Salt Lake City. 27 16. After the landing, Mr. Reber did a walk-around of the aircraft. 28 19 Id. at 93:19-22; Post-Incident View of Ramp with Tracks in Non-Paved Area (“Post-Occurrence Photo”), docket no. 54-2, filed June 28, 2023. 20 Chappell Depo. at 93:14-18; Post-Occurrence Photo. 21 Chappell Depo. at 87:22-24. 22 Id. at 91:2-3. 23 Id. at 102:9-13. 24 Id. at 87:25-88:12; N461SW Engines Thrust/FDR Analysis (“Thrust Analysis”), docket no. 54-3, filed June 28, 2023. 25 Chappell Depo. at 92:6-9, 102:4-7, 142:14-17. 26 Id. at 94:23-95:3. 27 Id. at 105:19-21. 28 Id. at 112:1-4. 4 17. Mr. Reber told Mr. Chappell that there was dirt on the tire. 29 18. After being told of the dirt on the tire, Mr. Chappell did not feel the need to go look at the tire. 30 19. Without ascertaining the severity of dirt on the tires, Mr. Chappell left the scene. 31 20. At the request of his supervisor, Mr. Chappell submitted an Irregular Operations Report (“IOR”) the next day, March 25, 2020. 32 21. In his IOR, Mr. Chappell stated, “We were unaware that the aircraft was not on the tarmac. If we would have [sic] I would have returned to the gate.” 33 22. Mr. Reber also submitted an IOR on March 25, 2020, while the “event was still fresh in [his] mind.” 34 In his IOR, Mr. Reber stated, “About two third or so through the 270 degree turn (we were headed towards runway 1 for a northbound departure that morning) there was the potential that the plane could have been on dirt for a moment, but I had little to no visibility from my vantage point as we were turning left.” 35 23. Mr. Reber indicated in his IOR that he did not “recall any pavement edge paint lines or lights in that area and both of those would help. Also, the rampers could probably help prevent this in the future by not pushing planes back and angling them towards the dirt area. It 29 Id. at 114:3-11. 30 Id. at 128:18-129:4. 31 Id. at 129:10-13. 32 Id. at 116:25-117:5, 118:10-21; IOR #00076682 (“Chappell IOR”), docket no. 54-4, filed June 28, 2023. 33 Chappell IOR. 34 Deposition of Justin Reber (“Reber Depo.”) at 26:3-8, docket no. 59-2, filed Aug. 2, 2023. 35 IOR #00093818 (“Reber IOR”), docket no. 54-5, filed June 28, 2023. 5 was dark that early morning and it would be helpful if there was better flood type lighting to illuminate the area toward the north part of the ramp.” 36 24. Mr. Reber also wrote in his IOR that “[T]he captain gave a bit more power to continue the taxi and we proceeded normally towards runway 1.” 37 25. Mr. Reber was aware that “IOR’s can sometimes lead to disciplinary action” and that “it’s important to be truthful and as accurate as possible when you fill out an IOR.” 38 26. Mr. Reber did not write or submit his IOR jointly with Mr. Chappell. 39 27. SkyWest investigated the Occurrence. 40 28. During the investigation, Mr. Reber was asked to and did submit a written statement (“Event Statement”). 41 29. Mr. Reber wrote in his Event Statement that he knew the plane went into dirt: “[M]idway through the turn I look down at the moving ground where the nose light is crossing and am shocked to see what appears to be dirt.” 42 30. Mr. Reber also wrote that he verbally alerted Mr. Chappell about what had just happened: “It was dark, flat, red dirt. I stated to say, ‘What the….?’ and then the nose of the plane was back on pavement.” 43 36 Id.; Investigation Findings at 1. 37 Reber IOR. 38 Id. 39 Reber Depo. at 31:9-13, 32:9-11. 40 Investigation Findings. 41 Reber Depo. at 44:17-45:3; St. George Taxi Event (“Event Statement”), docket no. 54-7, filed June 28, 2023. 42 Event Statement. 43 Id. 6 31. Mr. Reber included in his Event Statement that “[t]he right mains stopped at lip of the asphalt momentarily, [Mr. Chappell] gave it more power, and we were again taxiing. This all took just a few seconds.” 44 32. Mr. Reber opined, “Did [Mr. Chappell] know he went on dirt? Though he never admitted it, he undoubtedly knew.” 45 33. Mr. Reber listed five factors in his Event Statement that he believed to be the causes of the aircraft leaving the tarmac during the Occurrence: (1) poor overhead floodlighting; (2) no edge lighting;(3) rampers angling the plane towards the left; (4) lack of adequate pavement near the place; and (5) overly aggressive turnout by [Mr. Chappell] without looking first. 46 34. Mr. Reber agreed that four of the five factors that he listed were beyond the control of the flight crew. 47 35. Mr. Reber also agreed that the first four factors that he listed were jointly the responsibility of SkyWest and the St. George Airport. 48 36. Mr. Reber testified that he did not believe the aircraft would have gone off the tarmac if the first four factors had not been present. 49 37. After the Occurrence but prior to drafting the Event Statement, Mr. Reber spoke with the FAA. 50 44 Id. 45 Id. 46 Id.; Reber Depo. at 13-17, 59:24-60:16. 47 Reber Depo. at 60:9-12. 48 Id. at 60:22-25. 49 Id. at 61:1-11. 50 Id. at 46:21-47:1; Event Statement at 1. 7 38. According to Mr. Reber, the information that he provided to the FAA was “pretty close” to that within his statement provided in the IOR to SkyWest. 51 39. The FAA agent that spoke with Mr. Reber recalled that “[b]oth pilots stated there was no discussion of any event at St. George during taxi, en-route, after landing, or post-flight. 52 40. Mr. Chappell who informed the same FFA Agent that he did not know that the aircraft had left the runway during the Occurrence. 53 41. The FAA never took any disciplinary action against Mr. Reber based on the Occurrence. 54 42. Following SkyWest’s investigation, Mr. Chappell’s employment was terminated on April 24, 2020, for safety violations (“First Termination”). 55 43. Mr. Reber’s employment was also terminated the same day for safety violations. 56 44. SkyWest has a review board process through which a pilot may appeal an employment termination. 57 45. The review board panel consists of four people, including two pilots and two management employees. 58 51 Reber Depo. at 62:22-25. 52 Email Chain Between Randy Chappell and Charles Reed at 2-3, docket no. 59-4, filed Aug. 2, 2023. 53 Id. 54 Reber Depo. at 64:6-9, 65:7-10. 55 Review Board Hearing Oct. 15, 2020 (“Second Review Board Hearing”) at 3, docket no. 54-8, filed June 28, 2023; Termination Decision, docket no. 54-9, filed June 28, 2023. 56 Reber Depo. at 52:7-12. 57 Chappell Depo. at 132:7-17. 58 Id. at 133:7-11. 8 46. The pilot who requests a review board is informed who will be on the panel and must approve of the panel members. 59 47. The review board is the decision-maker on whether the termination is upheld. 60 48. Mr. Chappell used this process to appeal his First Termination; his review board hearing occurred on June 16, 2020 (“First Review Board”). 61 49. During his First Review Board, Mr. Chappell admittedly told the panel that he did not feel he was being discriminated against. 62 50. At the conclusion of the First Review Board, the panel overturned Mr. Chappell’s First Termination on June 16, 2020, and reinstated him. 63 51. Mr. Reber’s review board hearing as to his termination occurred the next day, on June 17, 2020. 64 52. Mr. Reber was aware that Mr. Chappell’s First Review Board was scheduled for the day before Mr. Reber’s review board hearing. 65 53. Mr. Reber was also aware that the members of his panel would be the same board members who heard Mr. Chappell’s First Review Board. 66 54. Mr. Reber testified that he “probably” reviewed Mr. Chappell’s IOR prior to his review board hearing. 67 59 Id. at 133:12-16. 60 Id. at 132:18-23. 61 Second Review Board Hearing. 62 Chappell Depo. at 139:21-140:6. 63 Id. at 145:3-7, 145:24-146:1. 64 Id. at 146:2-4. 65 Reber Depo. at 71:18-21. 66 Id. at 72:1-11. 67 Id. at 74:15-16. 9 55. Mr. Reber discussed the content of his testimony with several pilots and flight attendants prior to his review board hearing. 68 56. Mr. Reber made self-incriminating statements (namely, that both he and Mr. Chappell knew the aircraft went off the tarmac) during his review board. 69 57. Mr. Reber informed the review board that “I knew this wasn’t life-threatening. But I also knew it wasn’t a good thing either. So, before leaving the ramp area in front of the St. George terminal building, I brought this issue to [Mr. Chappell’s] attention as he continued to taxi. I wanted to discuss it and said to him, ‘What the crap was that? You just taxied us on the dirt.’ [Mr. Chappell] dismissed my attempt at discussing or resolving what had just happened and responded with, ‘Don’t worry about it. Get a clearance from LA.’” 70 58. Mr. Reber informed the review board that during his post-flight inspection, he “noted dirt marks on the outer walls of the tires. There were some on the nose wheel and left mains but mostly on the right mains, because they had traveled furthest off the ramp.” 71 59. During Mr. Reber’s review board hearing, Roy Glassey (advocating on behalf of SkyWest) discussed Mr. Chappell’s actions as well as his testimony provided to the First Review Board the previous day. 72 60. Mr. Glassey presented and discussed the contents of Mr. Chappell’s IOR, and argued that, “[Mr. Chappell’s] IOR certainly is not in alignment with what happened.” 73 68 Id. at 74:22-75:20. 69 Chappell Depo. at 221:7-16. 70 SkyWest00103 Reber Hearing (“Reber Review Board Hearing”) at 11, docket no. 63-1, filed Aug. 23, 2023. 71 Id. at 13-14. 72 Id. at 17-19, 21-24. 73 Id. at 21. 10 61. Following Mr. Glassey’s statements, a board member asked Mr. Reber, “Do you feel in your best judgment [Mr. Chappell] realized he was off the pavement?” to which Mr. Reber responded, “I’ll guarantee he knows, 100%.” 74 62. Having heard Mr. Reber’s testimony, panel members reported to SkyWest’s Employee Relations that they felt they had been “duped” by Mr. Chappell in the First Review Board the day prior. 75 63. SkyWest investigated the panel members’ report. 76 64. On July 20, 2020, Employee Relations Manager Pennie Hancock drafted an email to herself documenting “we learned [Mr.] Chappell had not been fully truthful when presenting his account of [the Occurrence].” 77 65. On August 5, 2020, Mr. Chappell’s employment was terminated again, now for being untruthful in violation of policies (“Second Termination”). 78 66. On September 4, 2020, a second FAA agent, Douglas DiFrancesco, contacted Mr. Reber. 79 67. Mr. Reber was hesitant to provide any additional information to Agent DiFrancesco. 80 74 Id. at 30. 75 Second Review Board Hearing at 2, 10. 76 Id. at 2-3. 77 Email from Pennie Hancock to Pennie Hancock, docket no. 59-5, filed Aug. 2, 2023. 78 Second Review Board Hearing at 2-3, 10; Termination Decision. 79 Email Chain Between Justin Reber and Douglas DiFrancesco, docket no. 59-6, filed Aug. 2, 2023; Reber Depo. at 65:15-17. 80 Reber Depo. at 65:15-17. 11 68. Mr. Reber wanted to know how it would benefit him if he agreed to submit additional information to Agent DiFrancesco. 81 69. Mr. Reber did not send any additional information regarding the Occurrence to the FAA in response to Agent DiFrancesco’s request. 82 70. Mr. Chappell appealed his Second Termination (the “Second Review Board”). 83 71. The Second Review Board consisted of four people who had not been on the First Review Board. 84 72. Mr. Chappell approved of the Second Review Board members. 85 73. The final decision-maker as to Mr. Chappell’s Second Termination was the Second Review Board. 86 74. Mr. Chappell admits that, ultimately, a review board (such as the Second Review Board) would have to decide who and what they were going to believe when confronted with contradictory statements (such as those between Mr. Chappell and Mr. Reber). 87 75. The Second Review Board hearing was scheduled for October 15, 2020. 88 76. In the Second Review Board, Mr. Chappell took the opportunity to produce evidence. 89 81 Id. at 70:11-16. 82 Id. at 69:12-14. 83 Chappell Depo. at 146:12-17. 84 Id. at 146:18-24. 85 Id. at 148:1-6. 86 Id. at 165:2-5. 87 Id. at 150:25-151:6. 88 Second Review Board Hearing. 89 Chappell Depo. at 152:8-12. 12 77. The Second Review Board panel upheld Mr. Chappell’s Second Termination. 90 78. Mr. Reber was aware of Mr. Chappell’s Second Review Board and when it was scheduled. 91 79. Prior to Mr. Chappell’s Second Review Board, Mr. Reber sent an email to Chief Pilot Mark Richards and the head of SkyWest’s Human Resources Department, Nicole Chapman, claiming that he feared for his safety and for that of his family, and that he might suffer “retribution” if Mr. Chappell “be told by [SkyWest] details [Mr. Reber] shared confidentially[.]” 92 80. Ms. Chapman responded that there was no need for concern because Mr. Chappell would not be learning anything new at the hearing and this Mr. Reber’s “statements to [SkyWest] are subject to confidential controlled and will not be shared outside of the review board setting.” 93 81. Mr. Reber sent a second email stating that he feared Mr. Chappell because Mr. Chappell “is the only person [he] kn[e]w that has harbored or housed a known felon.” 94 82. Mr. Reber stated during his deposition that he did not know what Mr. Chappell was looking at during the Occurrence. 95 90 Id. at 152:13-16. 91 Reber Depo. at 104:25-105:4. 92 Id. 105:5-106:7; Email Chain Between Justin Reber, Nichole Chapman, and Mark Richards, docket no. 63-2, filed Aug. 23, 2023. 93 Reber Depo. at 109:6-13; Email Chain Between Justin Reber, Nichole Chapman, and Mark Richards. 94 Reber Depo. at 110:18-111:22; Email Chain Between Justin Reber, Nichole Chapman, and Mark Richards. 95 Reber Depo. at 52:20-21, 53:2-4, 55:23-25. 13 83. Mr. Reber stated during his deposition that he did not actually say “What the?” or anything else when the plane left the tarmac because “it happened really quickly,” but did so a few seconds after the plane was back on the tarmac. 96 84. In the past 10 years, no other SkyWest pilot has been discharged for the same reasons that Mr. Chappell was discharged (namely, dishonesty in violation of policies). 97 85. Mr. Chappell testified four times about why he believes his employment was terminated: (a) for the Occurrence; 98 (b) because of the Occurrence; 99 (c) for not being truthful; 100 and (d) because SkyWest believed from the start that he knew he had driven into the dirt. 101 86. SkyWest’s Company Policy Manual states that SkyWest’s employees are employed at will. 102 87. The Company Policy Manual expressly states that SkyWest’s policies do not constitute a contract. 103 96 Id. 50:8-15, 51:2-7. 97 Defendant’s First Supplemental Responses to Plaintiff’s Initial Interrogatory Requests at 4, docket no. 54-10, filed June 28, 2023. 98 Chappell Depo. at 155:6-11. 99 Id. at 131:25-132:6 100 Id. at 146:9-11. 101 Id. at 144:21-145:2. 102 Company Policy Manual, Nature of Employment, Standard Practice 51, docket no. 54-11, filed June 28, 2023. 103 Id. 14 88. SkyWest’s Pilot Policy Manual (“PPM”) provides, “[t]his Policy Manual will remain in effect indefinitely.” 104 89. The PPM contains Pilot Rules of Conduct (“Conduct Rules”). 105 90. Mr. Chappell acknowledges that the Conduct Rules obligate him to provide full, complete, and honest information, and that SkyWest can terminate his employment for failure to comply. 106 91. Mr. Chappell admits that falsifying company reports is an immediate termination issue. 107 92. Mr. Chappell admits that it would be appropriate for SkyWest to terminate one’s employment if SkyWest believed that individual falsified company records. 108 93. Mr. Chappell agrees that it is appropriate for SkyWest to have zero tolerance for untruthfulness from pilots. 109 94. Mr. Chappell is not aware of any direct evidence to support a conclusion that his termination was because he was over age 40. 110 95. The only evidence Mr. Chappell is aware of to show an ADA violation is that, when Mr. Chappell was reinstated in June 2020, it took SkyWest over three weeks to get him back on insurance. 111 104 Pilot Policy Manual at 3003.1, docket no. 54-12, filed June 28, 2023. 105 Id. at 3006.2-3006.6. 106 Chappell Depo. at 157:11-18, 158:1-3, 159:17-24. 107 Id. at 160:20-25. 108 Id. at 50:8-12. 109 Id. at 50:8-12. 110 Id. at 185:16-20. 111 Id. at 186:15-187:5. 15 96. Mr. Chappell admits that the expense of his wife’s medical procedure, which occurred after his termination, was not a motivating factor in his termination. 112 97. Mr. Chappell admits that SkyWest has paid for his wife’s heart procedure. 113 98. Mr. Chappell believes he was a high-cost employee to SkyWest because of his health insurance needs. 114 99. Mr. Chappell admits that SkyWest was his family’s health insurance provider for his last fourteen years and, during that time, SkyWest paid for those benefits. 115 100. Other than an assumption related to COVID, Mr. Chappell cannot identify anything that changed such that SkyWest would no longer be willing to pay for his insurance. 116 101. Mr. Chappell assumes that SkyWest wanted to end his benefits to save money. 117 102. Aside from the expense of his son’s diabetes, Mr. Chappell is aware of no other correlation between his benefits and his termination. 118 103. Mr. Chappell admits that he has no evidence that anyone who was involved in the termination of his employment had any access to information about his benefit use. 119 104. Mr. Chappell admits that, as far as he knows, no one at SkyWest has access to his benefits use information. 120 112 Id. at 190:23-191:6. 113 Id. at 190:4-12. 114 Id. at 188:1-9. 115 Id. at 188:14-22. 116 Id. at 189:1-13. 117 Id. at 189:14-23. 118 Id. at 191:9-12. 119 Id. at 226:10-227:2. 120 Id. at 227:11-13. 16 105. When asked what contract was breached, Mr. Chappell testified that he is not aware that he has such a claim. 121 106. Mr. Chappell is not aware of any witnesses that would support any of his claims. 122 STANDARD OF REVIEW Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 123 A factual dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way” 124 or “if a reasonable jury could return a verdict for the nonmoving party.” 125 A fact is material if “it is essential to the proper disposition of [a] claim.” 126 And in ruling on a motion for summary judgment, the factual record and all reasonable inferences drawn therefrom are viewed in a light most favorably to the nonmoving party. 127 The moving party “bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” 128 If the moving party carries this initial burden, the nonmoving party “may not rest upon mere allegations or denials of [the] pleading[s], but must set forth specific facts showing that there is a 121 Id. at 191:19-23. 122 Id. at 208:23-209:1. 123 FED. R. CIV. P. 56(a). 124 Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). 125 Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994) (internal quotations omitted). 126 Adler, 144 F.3d at 670. 127 Id. 128 Id. at 670-71. 17 genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” 129 Conjecture and speculation are not enough. 130 “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient to defeat a properly supported motion for summary judgment.” 131 DISCUSSION Mr. Chappell alleges six causes of action against SkyWest: (1) discrimination in violation of the ADA; (2) discrimination in violation of the ADEA; (3) violation of § 510 of ERISA; (4) violation of the Rehabilitation Act of 1973; (5) breach of contract; and (6) negligence. 132 SkyWest seeks summary judgment arguing that Mr. Chappell cannot establish a prima facie case for any of his claims, and that SkyWest terminated Mr. Chappell’s employment for legitimate, non-discriminatory reasons after concluding that Mr. Chappell had been dishonest in violation of company policies. For the following reasons, summary judgment in favor of SkyWest is GRANTED. Mr. Chappell’s ADA claim fails Absent direct evidence of associational disability discrimination under 42 U.S.C. § 12112(b)(4), the McDonnell Douglas burden-shifting framework applies. First, a plaintiff must establish a prima facie case, by showing: (1) the plaintiff was qualified for the job at the time of the adverse employment action; (2) the plaintiff was subjected to an adverse employment action; (3) the plaintiff was known by the employer at the time to have a relative or associate with a 129 Universal Money Ctrs., Inc., 22 F.3d at 1529 (internal quotations and citations omitted; emphasis in original). 130 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); McIntosh v. Boatman’s First Nat. Bank of Okla., 103 F.3d 144 (Table), *1 (10th Cir. 1996). 131 Universal Money Ctrs., Inc., 22 F.3d at 1529 (internal quotations omitted). 132 Complaint, ¶¶ 58-111 at 9-16. Mr. Chappell’s other claims against SkyWest were dismissed with prejudice on stipulation of the parties. Id. ¶¶ 112-127 at 16-18; Order Granting Motion to Dismiss Two Claims With Prejudice. 18 disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision. 133 The defendant must then proffer a legitimate, non-discriminatory reason for the plaintiff’s adverse employment action. 134 And then the burden then shifts back to the plaintiff to provide evidence that the defendant’s stated reason is pretextual. 135 Mr. Chappell’s ADA claim fails at least the fourth element of establishing a prima facie case: the circumstances do not raise an inference that a relative’s disability was a determining factor in SkyWest’s decision to terminate Mr. Chappell. It is undisputed that Mr. Chappell has no evidence that anyone involved in the termination of his employment had any access to information about his benefit use. 136 This alone is dispositive of Mr. Chappell’s ADA claim. 137 Additionally, it is also undisputed that Mr. Chappell stated during his First Review Board that he did not feel he was being discriminated against. 138 And Mr. Chappell testified on four occasions regarding the reasons for his termination, and none of those reasons involve disability. 139 Where Mr. Chappell, himself, does not believe his termination was because of disability discrimination, there is no inference of discrimination for purposes of establishing a prima facie case of discrimination. 140 133 Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1085 (10th Cir. 1997). 134 Id. 135 Id. 136 Supra Undisputed Facts ¶ 103 at 16. 137 Teeter v. Lofthouse Foods, 691 F. Supp. 2d 1314, 1322 (D. Utah 2010). 138 Supra Undisputed Facts ¶49 at 9. 139 Id. ¶ 85 at 14. 140 Beck v. Dahn Corp., 145 F.3d 1345 (Table), *3 (10th Cir. 1998). 19 Mr. Chappell’s ADA claim rests on allegations that SkyWest did not pay for his wife’s medical procedure and that SkyWest caused a three-week delay in reinstating his insurance. The evidence does not support these allegations. It is undisputed that Mr. Chappell’s wife’s medical procedure, which occurred after his termination, was not a motivating factor in his termination. 141 It is also undisputed that SkyWest ultimately paid for his wife’s medical procedure, 142 negating any inference of discrimination. The alleged delay in insurance occurred after Mr. Chappell’s First Termination and after his employment was reinstated. 143 Thus, the adverse action was already reversed at the time of the alleged delay. Additionally, Mr. Chappell provides no evidence that any decision-maker was motivated by his son’s disability. Mr. Chappell’s reinstatement–where there was no change in his son’s disability status–also undermines any inference that his termination was because of his son’s disability. And Mr. Chappell fails to present evidence that the delay in insurance had anything to do with his Second Termination. Mr. Chappell argues that SkyWest terminated his employment to save money, alleging that Mr. Chappell’s insurance was costlier than other employees’ because of his son’s diabetes. Mr. Chappell requests that judicial notice be taken that diabetes is “extremely expensive.” But this vague and relative assertion is not conducive to judicial notice. 144 It remains that Mr. Chappell presents no facts or dispute of material fact to support his cost-savings argument. Mr. Chappell merely speculates that his expensive health insurance may have been a factor in SkyWest’s decision to terminate him. But speculation and allegations are not sufficient to defeat 141 Supra Undisputed Facts ¶ 96 at 16. 142 Id. ¶ 97 at 16. 143 Id. ¶ 95 at 15. 144 Estate of Lockett by and through Lockett v. Fallin, 841 F.3d 1098, 1111 (10th Cir. 2016). 20 summary judgment. 145 Because Mr. Chappell fails to establish a prima facie case of associational disability discrimination, SkyWest is entitled to summary judgment on Mr. Chappell’s ADA claim. However, even if Mr. Chappell had established a prima facie case, the undisputed material facts demonstrate that SkyWest had a legitimate, non-discriminatory reason for terminating Mr. Chappell’s employment and Mr. Chappell cannot establish pretext. It is undisputed that Mr. Chappell approved the Second Review Board panel members; 146 that the Second Review Board was the final decision-maker regarding Mr. Chappell’s Second Termination; 147 and that the Second Review Board had to decide whether to believe Mr. Chappell or Mr. Reber. 148 It is further undisputed that falsifying records is an “immediate” termination basis at SkyWest; 149 that Mr. Chappell admitted it is appropriate for SkyWest to have a zero-tolerance policy regarding untruthfulness from pilots; 150 and that Mr. Chappell admitted it would be appropriate for SkyWest to terminate his employment if the company believed he had falsified records. 151 And it is undisputed that Mr. Chappell had the opportunity to produce evidence to the Second Review Board; 152 that the Second Review Board decided to uphold the decision to terminate Mr. Chappell’s employment; 153 and that the official reason for 145 Anderson, 477 U.S. at 249. 146 Supra Undisputed Facts ¶ 72 at 12. 147 Id. ¶ 73 at 12. 148 Id. ¶ 74 at 12. 149 Id. ¶ 91 at 15. 150 Id. ¶ 93 at 15. 151 Id. ¶ 92 at 15. 152 Id. ¶ 76 at 12. 153 Id. ¶ 77 at 13. 21 Mr. Chappell’s termination was dishonesty. 154 Therefore, the undisputed material facts demonstrate that SkyWest determined Mr. Chappell had been dishonest and it terminated his employment, which was its prerogative and consistent with its policies. Mr. Chappell fails to present evidence to create a material dispute that SkyWest’s stated reason was pretext for discrimination. Mr. Chappell points to an email from Pennie Hancock to herself. 155 And Mr. Chappell speculates that “the only plausible explanation” for the email was to create evidence to substantiate SkyWest’s practice of discriminating against more senior employees as a pretext to saving money. 156 But this speculation is not supported by any other facts in the record about why this email exists; whether it was used for any reason; and if so, how it was used. Mr. Chappell’s bald speculation regarding the email is not sufficient to create a reasonable inference or a dispute of fact regarding pretext. 157 The content of the email also do not support Mr. Chappell’s speculation. The email is consistent with the undisputed facts that panel members reported to SkyWest Employee Relations that they felt “duped” by Mr. Chappell in his First Review Board; 158 SkyWest subsequently investigated; 159 and SkyWest then terminated Mr. Chappell’s employment for dishonesty. 160 Based on the undisputed material facts, Mr. Chappell’s ADA claim fails. Therefore, SkyWest is entitled to summary judgment on Mr. Chappell’s ADA Claim. 154 Id. ¶ 65 at 11, ¶ 84 at 14. 155 Plaintiff’s Response to Motion for Summary Judgment (“Response”) at 28-29, docket no. 58, filed Aug. 2, 2023. 156 Id. 157 Proctor v. United Parcel Serv., 502 F.3d 1200, 1209 (10th Cir. 2007). 158 Supra Undisputed Facts ¶ 62 at 11. 159 Id. ¶ 63 at 11. 160 Id. ¶ 65 at 11, ¶ 84 at 14. 22 Mr. Chappell’s ADEA claim fails In the absence of direct evidence of age discrimination, the McDonnell Douglas burden-shifting framework applies to ADEA claims. 161 To establish a prima facie case of age discrimination, a plaintiff must show that: (1) the plaintiff is a member of the class protected by the ADEA; (2) the plaintiff suffered an adverse employment action; (3) the plaintiff was qualified for the position at issue; and (4) the plaintiff was treated less favorably than others not in the protected class. 162 The plaintiff must prove that age was the but-for cause of the employer’s adverse action. 163 It is undisputed that Mr. Chappell, himself, does not believe his termination was discriminatory. 164 This defeats his ability to show that age was the but-for cause of his termination. Additionally, Mr. Chappell’s ADEA claim fails at least the fourth element of establishing a prima facie case: Mr. Chappell was not treated less favorably than those similarly situated outside the protected class. Mr. Chappell’s Second Termination was for dishonesty. 165 It is undisputed that no other SkyWest pilot has been discharged for the same reasons that Mr. Chappell was in the past 10 years. 166 And Mr. Chappell fails to present facts and evidence to allow reasonable inference or a material dispute that any employee outside the protected class who violated the same policies received more favorable treatment. To the extent Mr. Chappell seeks to compare himself to Mr. Reber, the comparison is insufficient to defeat summary judgment. Mr. Reber made self-incriminating statements during 161 Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1279 (10th Cir. 2010). 162 Id. 163 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). 164 Supra Undisputed Facts ¶ 49 at 9. 165 Id. ¶ 65 at 11, ¶ 84 at 14. 166 Id. 23 his June 17, 2020 review board. 167 Mr. Chappell, on the other hand, maintained that he was unaware of the Occurrence. 168 It is undisputed that Mr. Chappell approved the Second Review Board panel members; 169 that the Second Review Board was the final decision-maker regarding Mr. Chappell’s Second Termination; 170 and that the Second Review Board had to decide who to believe between Mr. Chappell and Mr. Reber. 171 The Second Review Board decided to uphold the decision to terminate Mr. Chappell’s employment for dishonesty. 172 The Second Review Board panel’s good faith business judgment, even if wrong, is not be second-guessed by courts. 173 Mr. Chappell fails to present any facts with record support to establish age discrimination. Indeed, it is undisputed that Mr. Chappell is not aware of any direct evidence of age discrimination. 174 Therefore, based on the undisputed material facts, Mr. Chappell’s ADEA claim fails. SkyWest is entitled to summary judgment on Mr. Chappell’s ADA Claim Mr. Chappell’s ERISA claim fails To prevail on a claim under § 510 of ERISA, an employee must demonstrate that the defendant had the specific intent to interfere with the employee’s ERISA rights. 175 The employee can satisfy this burden by relying on either direct or circumstantial evidence of the defendant’s 167 Id. ¶ 56 at 10. 168 Id. ¶ 21 at 5, ¶ 40 at 8. 169 Id. ¶ 72 at 12. 170 Id. ¶ 73 at 12. 171 Id. ¶ 74 at 12. 172 Id. ¶ 65 at 11, ¶ 77 at 13, ¶ 84 at 14. 173 Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1119 (10th Cir. 2007). 174 Supra Undisputed Facts¶ 94 at 15. 175 Phelps v. Field Real Estate Co., 991 F.2d 645, 649 (10th Cir. 1993). 24 intent. 176 When indirect evidence of a defendant’s intent is proffered, the McDonnell Douglas burden-shifting analysis is be applied. 177 Mr. Chappell fails to establish ERISA interference To establish a prima facie case of interference under § 510 of ERISA, a plaintiff must show: (1) prohibited employer conduct; (2) taken for the purpose of interfering; (3) with the attainment of any right to which the employee may become entitled. 178 No action lies where the alleged loss of rights is a mere consequence, as opposed to a motivating factor, behind the adverse employment action. 179 Mr. Chappell relies on indirect evidence, so he must establish a prima facie case. His ERISA interference claim fails the first and second elements of establishing a prima facie case: SkyWest did not engage in prohibited conduct for the purpose of interfering with his benefits. Mr. Chappell’s ERISA interference claim rests on his allegations that he was a high cost employee because of the expensive health insurance benefits he received for his son’s diabetes, and SkyWest terminated his employment to eliminate that expense. 180 However, it is undisputed that SkyWest paid for Mr. Chappell’s health insurance for the last fourteen years. 181 Mr. Chappell cannot identify anything that changed around the time of the Occurrence such that SkyWest would no longer be willing to pay for his insurance, and he admits that it is just his assumption. 182 Mr. Chappell is also not aware of any other correlation between his termination 176 Garratt v. Walker, 164 F. 3d 1249, 1256 (10th Cir. 1998). 177 Godwin v. Sw. Research Inst., 237 Fed. App’x 306, 308 (10th Cir. 2007); Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). 178 Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1504 (10th Cir. 1995). 179 Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1151 (10th Cir. 2011). 180 Response at 34; Complaint ¶¶ 84-85 at 14. 181 Supra Undisputed Facts ¶ 99 at 16. 182 Id. ¶¶ 100-101 at 16. 25 and his benefits. 183 Mr. Chappell’s bald assumptions are insufficient to establish SkyWest’s intent. 184 Mr. Chappell’s claim fails the second element of establishing a prima facie case for another reason: Mr. Chappell cannot establish that interfering with his rights was a motivating factor in his termination. It is undisputed that Mr. Chappell has no evidence that any decision-makers regarding his termination had access to information on his benefits use. 185 Indeed, it is undisputed that, as far as Mr. Chappell knows, no one at SkyWest has access to his benefits use information. 186 Therefore, Mr. Chappell cannot establish that his benefits use was a motivating factor in his termination. 187 Mr. Chappell seeks an inference that SkyWest was aware that his family placed a disproportionate financial burden on SkyWest’s self-insured health care plan. But Mr. Chappell presents no evidence to allow for such inference to be reasonable. 188 Based on the undisputed material facts, Mr. Chappell’s ERISA interference claim fails. Therefore, SkyWest is entitled to summary judgment on Mr. Chappell’s ERISA interference claim. Mr. Chappell fails to establish ERISA retaliation To establish retaliation under ERISA, a plaintiff must show that the plaintiff was discharged or discriminated against for exercising a right to which the plaintiff is entitled under 183 Id. ¶ 102 at 16. 184 Card v. Hercules Inc., 5 F.3d 545 (Table), *3 (10th Cir. 1993); Carter, 662 F.3d at 1151. 185 Supra Undisputed Facts ¶ 103 at 16. 186 Id. ¶ 104 at 16. 187 Cunningham v. Adams, 106 Fed. App’x 693, 698 (10th Cir. 2004). 188 Eisenhour v. Weber Cty., 744 F.3d 1220, 1226 (10th Cir. 2014). 26 the provisions of an employee benefit plan. 189 To establish a prima facie case of retaliation, a plaintiff must demonstrate circumstances that give rise to an inference of discrimination. 190 But “[t]he mere knowledge of an employee’s medical condition is insufficient by itself to create an inference of retaliation.” 191 It is undisputed that Mr. Chappell has no evidence that any decision-makers, or anyone at SkyWest, had access to information regarding his benefits use. 192 And it is undisputed that SkyWest paid his benefits without issue for fourteen years prior to his termination. 193 Mr. Chappell presents only conclusions devoid of record support to support his ERISA retaliation claim. This is insufficient to defeat summary judgment. 194 The undisputed materials facts do not permit reasonable inference or a dispute of fact regarding retaliation. 195 Based on the undisputed material facts, Mr. Chappell’s ERISA retaliation claim fails. Therefore, SkyWest is entitled to summary judgment on Mr. Chappell’s ERISA retaliation claim. Mr. Chappell concedes his Rehabilitation Act claim fails Mr. Chappell concedes that his Rehabilitation Act claim fails. 196 Therefore, SkyWest is entitled to summary judgment on this claim. 189 29 U.S.C. § 1140. 190 Lipe v. Mid-Central, Mfg., No. 05-1009-JTM, 2005 WL 3430421, *4 (D. Kan. Dec. 8, 2005). 191 Id. (citing Phelps v. Field Real Estate, 991 F.2d 645, 649-50 (10th Cir. 1993)). 192 Supra Undisputed Facts ¶¶ 103-104 at 16; see also Lipe, 2005 WL 3430421, *4. 193 Id. ¶ 99 at 16. 194 Anderson, 477 U.S. at 249. 195 Lipe, 2005 WL 3430421, *4. 196 Response at 35. 27 Mr. Chappell’s breach of contract claim fails To establish a breach of contract, a plaintiff must show: (1) the existence of a contract; (2) performance by the party seeking recovery; (3) breach of the contract by the other party; and (4) damages. 197 Mr. Chappell’s breach of contract claim fails because he cannot show that a contract exists. It is undisputed that SkyWest’s Company Policy Manual expressly states that SkyWest’s policies do not constitute a contract. 198 It is also undisputed that the Company Policy Manual also states SkyWest employees are employed “at will.” 199 Mr. Chappell does not address this language. He instead focuses on SkyWest’s Pilot Policy Manual, which he argues creates an individual employment contract by which he could only be terminated for cause. 200 However, it is undisputed that the Pilot Policy Manual states that “[t]his Policy Manual will remain in effect indefinitely.” 201 This language further negates the existence of a contract and reaffirms that Mr. Chappell’s employment was terminable at will. 202 The undisputed material facts demonstrate that Mr. Chappell did not have an express contract for employment with SkyWest, and Mr. Chappell fails to present sufficient facts and evidence to allow reasonable inference or a material dispute regarding an implied employment contact. Mr. Chappell’s breach of contract claim also fails because even if a contract existed, Mr. Chappell cannot establish that he performed. It is undisputed that the Conduct Rules within the 197 Beesley v. Hansen, No. 2:17-cv-00889-JNP-EJF, 2019 WL 1573152, *1 (D. Utah Apr. 11, 2019). 198 Supra Undisputed Facts ¶ 87 at 14. 199 Id. ¶ 86 at 14. 200 Response at 35-39; Complaint ¶¶ 98-105 at 15. 201 Supra Undisputed Facts ¶ 88 at 15. 202 Myles v. Delta Air Lines, Inc., No. 89-C-1039W, 1990 WL 264720, *3 (D. Utah 1990) (citing Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1044 (Utah 1989)). 28 Pilot Policy Manual obligated Mr. Chappell to provide full, complete, and honest information. 203 It is also undisputed that he had been honest was a decision for SkyWest (the Second Review Board) to make. 204 And it is undisputed that the Second Review Board agreed with and upheld SkyWest’s Second Termination, determining that Mr. Chappell had not provided honest information. 205 Because the undisputed facts demonstrate that Mr. Chappell failed to comply with the Conduct Rules, Mr. Chappell cannot establish his performance under any employment contract he had with SkyWest. Mr. Chappell’s breach of contract claim further fails because he cannot establish that SkyWest breached any employment contract it had with him. It is undisputed that SkyWest can terminate a pilot’s employment for failure to comply with the Pilot Policy Manual’s Conduct Rules. 206 And it is undisputed that Mr. Chappell agrees that it is appropriate for SkyWest to take a zero tolerance approach and terminate an employee’s employment if SkyWest believes the employee falsified company records. 207 It is also undisputed that it was for SkyWest (the Second Review Board) to decide who to believe between Mr. Chappell and Mr. Reber. 208 SkyWest believed that Mr. Chappell had provided false information and terminated his employment based on this belief. 209 The Second Review Board agreed and upheld the Second Termination. 210 Thus, the undisputed material facts demonstrate that SkyWest was within its rights to terminate Mr. 203 Supra Undisputed Facts ¶ 90 at 15. 204 Id. ¶ 74 at 12. 205 Id. ¶ 65 at 11, ¶ 77 at 13, ¶ 84 at 14. 206 Id. ¶ 90 at 15. 207 Id. ¶¶ 92-93 at 15. 208 Id. ¶ 74 at 12. 209 Id. ¶ 65 at 11, ¶ 77 at 13, ¶ 84 at 14. 210 Id. ¶ 77 at 13. 29 Chappell’s employment. And Mr. Chappell fails to present sufficient facts and evidence to support reasonable inference or a material dispute that SkyWest breached any employment contract when terminating Mr. Chappell’s employment. Based on the undisputed material facts, Mr. Chappell’s breach of contract claim fails. Therefore, SkyWest is entitled to summary judgment on Mr. Chappell’s breach of contract claim. Mr. Chappell’s negligence claim fails “[A] party may not merely rely on bald assertions of negligence.” 211 “To have a negligence case submitted to the jury, ‘a plaintiff must submit sufficient evidence to establish a prima facie case against the defendant.’” 212 To establish a claim of negligence, a plaintiff must show that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty, (3) the breach of duty was the proximate cause of the plaintiff’s injury; and (4) the plaintiff in fact suffered injury. 213 Mr. Chappell’s negligence claim fails because he has not shown that SkyWest owed him the duty he alleges. Mr. Chappell alleges that SkyWest owed him a duty to ensure the safety of everyone on board the aircraft. But it is undisputed that, by regulation, it was Mr. Chappell’s own duty as a captain to ensure safety on every flight. 214 Mr. Chappell does not address this fact. He instead asserts that the First Officer is equally responsible, and that a pilot only takes responsibility for potential safety issues of which he is aware. 215 Mr. Chappell offers no record 211 Kitchen v. Cal Gas Co., Inc., 821 P.2d 458, 461 (Ct. App. Utah 1991). 212 Id. 213 Id. 214 Supra Undisputed Facts ¶ 3 at 3. 215 Response at 9. 30 support for these assertions. And Mr. Chappell produced insufficient facts and evidence to permit a finding that SkyWest owed him the alleged duty. Mr. Chappell’s negligence claim also fails that SkyWest breached any duty it owed to Mr. Chappell. Mr. Chappell alleges that SkyWest breached its alleged duty when the ground crew failed to notify him of the Occurrence. 216 But the undisputed facts demonstrate that Mr. Chappell needed no notification. Mr. Chappell testified that the aircraft came to a halt and that he believed (but did not confirm) that he ran over a drainage grate. 217 It is undisputed that Mr. Chappell used up to 75% thrusters to get the aircraft moving again, and that he felt the aircraft move from side to side during this process. 218 Mr. Chappell knew there was at least an irregularity, but he proceeded with the flight anyway. 219 He should not have done this, according to his own admission that it is never appropriate for a pilot to assume something is safe. 220 Additionally, it is undisputed that Mr. Reber later informed Mr. Chappell of dirt on the aircraft’s tire. 221 But Mr. Chappell felt no need to inspect the tires and left the scene without ascertaining the severity of the dirt. 222 On this record of undisputed material facts, Mr. Chappell fails to present sufficient facts and evidence to support a reasonable inference or a material dispute regarding a breach of duty by SkyWest. Mr. Chappell’s breach of contract claim further fails because he cannot establish that the proximate cause of his termination was SkyWest breach of duty. “Proximate cause is ‘that cause 216 Complaint ¶ 108 at 16. 217 Supra Undisputed Facts ¶¶ 9-11 at 4. 218 Id. ¶¶ 12-13 at 4. 219 Id. ¶ 14 at 4. 220 Id. ¶ 2 at 3. 221 Id. ¶¶ 16-17 at 4-5. 222 Id. ¶¶ 18-19 at 5. 31 which, in a natural and continuous sequence, unbroken by any new cause, produced the injury, and without which the injury would not have occurred.’” 223 Mr. Chappell fails to establish proximate cause. Mr. Chappell argues that absent SkyWest’s negligence, the Occurrence would never have happened and he would not have been terminated the first time or the second time. 224 But Mr. Chappell was not discharged the first time for encountering a hazard. He was discharged for his own safety violations, once having encountered a hazard. 225 And Mr. Chappell was discharged the second time for dishonesty. 226 Thus, it is immaterial what SkyWest did or did not do regarding the Occurrence because the Occurrence itself was the cause of Plaintiff’s termination. Additionally, Mr. Chappell’s own allegations and the undisputed material facts demonstrate a break in causation. Mr. Chappell alleges that SkyWest breached its duty when the ground crew failed to notify him of the Occurrence. 227 But he also alleges, “[a]s a result of SkyWest’s breach, Plaintiff . . . placed the safety of himself, his First Officer, the flight crew, and passengers in danger.” 228 It is undisputed that, by regulation, Mr. Chappell was required to and did take full responsibility of the aircraft, 229 and that it is never appropriate for a pilot to assume something is safe. 230 Therefore, the undisputed facts demonstrate that Mr. Chappell’s own 223 Dee v. Johnson, 286 P.3d 22, 23 (Ct. App. Utah 2012) (quoting Bunker v. Union Pac. R.R. Co., 114 P. 764, 775 (1911)). 224 Response at 42. 225 Supra Undisputed Facts ¶ 42 at 8. 226 Id. ¶ 65 at 11, ¶ 77 at 13, ¶ 84 at 14. 227 Complaint ¶ 108 at 16. 228 Id. ¶ 109 at 16. 229 Supra Undisputed Facts ¶ 3 at 3. 230 Id. ¶ 2 at 3. 32 actions jeopardized safety and broke the causal chain leading to his termination, despite the ground crew’s alleged inaction. Moreover, it is undisputed that SkyWest terminated Mr. Chappell’s employment because it determined that he had been dishonest. 231 Mr. Chappell has also stated that he believes this is why his employment ended. 232 It is undisputed that Mr. Chappell approved the Second Review Board panel members; that he had an opportunity to present his case to them; that it was for them to make a credibility determination; and that they were the ultimate decision-makers regarding his termination. 233 Therefore, the Second Review Board’s determination to uphold Mr. Chappell’s termination based on his dishonesty breaks the causal chain, despite the ground crew’s alleged inaction. 234 Based on the undisputed material facts, Mr. Chappell’s negligence claim fails. Therefore, SkyWest is entitled to summary judgment on Mr. Chappell’s negligence claim. 231 Id. ¶ 65 at 11, ¶ 77 at 13, ¶ 84 at 14. 232 Id. ¶ 85(c) at 14. 233 Id. ¶¶ 72-74 at 12, ¶ 76 at 12. 234 Id. ¶ 65 at 11, ¶¶ 72-74 at 12, ¶¶ 76-77 at 12-13, ¶ 84 at 14. 33 ORDER IT IS HEREBY ORDERED that SkyWest’s Motion for Summary Judgment 235 is GRANTED. Mr. Chappell’s claims against SkyWest 236 are DISMISSED with prejudice. The Clerk is directed to close the case. Signed November 29, 2023. BY THE COURT ________________________________________ David Nuffer United States District Judge 235 Docket no. 54, filed June 28, 2023. 236 Complaint ¶¶ 58-111 at 9-16. 34

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