                                                                                 FILED
                                                                     United States Court of Appeals
                                        PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       January 21, 2014

                                                                         Elisabeth A. Shumaker
                                   TENTH CIRCUIT                             Clerk of Court


 STEVEN SMOTHERS,

       Plaintiff - Appellant,

 v.                                                           No. 12-8013

 SOLVAY CHEMICALS, INC., a
 Delaware corporation,

       Defendants - Appellees.



           APPEALS FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF WYOMING
                      (D.C. No. 2:11-CV-00200-NDF)


Sharon M. Rose, Lavery & Rose, L.P., Evanston, Wyoming, appearing for Plaintiff-
Appellant.

Paul J. Hickey (Kristi M. Radosevich, with him on the brief), Hickey & Evans, LLP,
Cheyenne, Wyoming, appearing for Defendant-Appellee.


Before LUCERO, McKAY, and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.


       Steven Smothers worked for Solvay Chemical, Inc. (“Solvay”) for 18 years until

Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a
coworker. Mr. Smothers contends the company’s true motivations were retaliation for

taking medical leave from work, in violation of the Family Medical Leave Act

(“FMLA”), and discrimination on the basis of his medical disability, in violation of the

Americans with Disabilities Act (“ADA”).

       He sued Solvay. The district court granted summary judgment for Solvay on his

FMLA and ADA claims and on his state law claim for breach of implied contract. It

dismissed the remaining state law claims as moot based on its resolution of Mr. Smother's

breach of contract claim. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse on

the FMLA and ADA claims and affirm on the state law breach of contract claim.

                                  I. BACKGROUND

                                   A. Factual History

       Because this case arises from an appeal of summary judgment, we present “the

evidence, and draw reasonable inferences therefrom, in the light most favorable to” Mr.

Smothers as the non-moving party. Metzler v. Fed. Home Loan Bank of Topeka, 464

F.3d 1164, 1167 n.2 (10th Cir. 2006).

1. Mr. Smothers’ work and medical history

       Mr. Smothers was a surface maintenance mechanic in Solvay’s trona mine1 in

Sweetwater County, Wyoming, from 1990 until August 27, 2008.2


       1
        “Trona is a relatively rare sodium-rich mineral” that is mined and processed into
soda ash. Barlow & Haun, Inc. v. United States, 87 Fed. Cl. 428, 431 (2009) (quotations
omitted). It is used in paper manufacturing and water treatment and is an ingredient in
                                                                            Continued . . .
                                            -2-
       Mr. Smothers injured his neck in 1994 and developed a degenerative disc disease

in his spine. His medical condition remained serious, requiring three surgeries to his

neck between 1999 and 2004, as well as numerous other medical procedures. This

caused severe ongoing pain, including chronic neck pain, severe migraine headaches, and

lower back problems. For several years, Mr. Smothers traveled to Salt Lake City for

medical appointments with a specialist. In medical records from these visits, Mr.

Smothers’ treating physician repeatedly noted that his pain continued and even increased

in spite of various medical treatments, causing him to “miss[] a lot of work” and to be

“quite miserable.” Aplt. Appx., Vol. II at 543. At times the pain was so severe that Mr.

Smothers “would basically be unable to work” without pain treatments. Id. at 549.

       Pain also affected Mr. Smothers’ sleep. He was often able to sleep only four hours

a night, though he sometimes reported sleeping as many as six hours. Mr. Smothers

consistently reported being awakened by his pain four to six times each night. His

surgeries and various other medical treatments, including prescriptions for pain, failed to

resolve his difficulty sleeping. His doctor prescribed various sleeping aids, which also

failed to fully resolve his sleep problems.
______________________________________
Cont.

baking soda and detergents. Id. Sweetwater County contains “the largest known deposit
of trona” and “accounts for approximately 30% of the total global production and 90% of
total domestic soda ash production.” Id.
       2
       Mr. Smothers’ employment began with Solvay’s corporate predecessor,
Tenneco.

                                              -3-
       Mr. Smothers sought and was granted FMLA leave from Solvay for intermittent

absences caused by this condition. Solvay considered him an excellent mechanic with

strong job knowledge who “always [did] top knotch work [sic] . . . always [got] along

with everyone,” took “pride in his work ethics and [was] always very reliable.” Aplt.

Appx., Vol. II at 508-09, 493. But managers and coworkers complained about his

FMLA-protected absences. Production Superintendent Melvin Wallendorff pressured

him to change from his graveyard shift to a day shift, where a larger staff could more

easily absorb his absences without requiring the company to incur overtime costs. This

shift change would have reduced Mr. Smothers’ income by about $7,000 a year. A

Human Resources representative advised Mr. Wallendorff that forcing Mr. Smothers to

make the change would violate FMLA. Mr. Wallendorff relented, but he and others

continued to complain about Mr. Smothers’ absences.

       Mr. Wallendorff and Rick Wehrle, Mr. Smothers’ direct supervisor, gave Mr.

Smothers a negative rating on his performance evaluation because of his absenteeism.

Sometime in 2005 or 2006, Mr. Smothers applied for a promotion and was told he was

being rejected because of his absences. Mr. Smothers did not raise any FMLA challenge

or complaint about the lost promotion.

2. The hydrochloric acid leak incident

       Hydrochloric acid is a dangerous but widely-used commercial chemical that may

harm humans if it is inhaled or ingested or touches the skin or the eyes. About every six


                                            -4-
months, the Solvay plant uses hydrochloric acid to remove build up inside its equipment

through an “acid wash” process, which takes 24 hours. Aplt. Appx., Vol. II at 399.

      The Solvay graveyard crew was conducting an acid wash on August 19, 2008. At

about 1:00 a.m., Control Board Operator Shane Youngburg recognized a problem with

the acid flow. He remotely shut down the acid pump and notified Plant Operator Charles

Brown.3 Mr. Brown investigated and found a rupture in a “line”—i.e., a plastic pipe—

running between an acid tank and a pump that transferred the acid into the plant. Acid

was “spraying out” from the ruptured line into the surrounding containment area—a pit

enclosed by a six-foot concrete wall. Id.

      Mr. Brown donned protective gear and began a four-hour clean-up process,

draining several inches of acid from the bottom of the containment area and using a fire

hose to wash away the remaining acid. When it was safe to do so, Mr. Brown entered the

containment area and closed the suction valve to stop the flow of acid, which involved

physically turning a wheel about the size of a steering wheel. He “thorough[ly]” cleaned

the valves and equipment and confirmed that no acid was flowing from the broken line.

Id. at 401. Lead Foreman Alex Loredo was present and assisted during part of the clean-

up process.

      Around this time, Mr. Brown and Mr. Loredo notified Mr. Smothers that “they

were going to get a line break permit and a lock out” and that the pump was “ready to be

      3
         Mr. Brown’s testimony is unclear as to when the pump was shut down, but it is
clear the pump was off by the time Mr. Smothers arrived in the area.

                                            -5-
worked on.” Id. at 311. The “line break” permit or form referred to a Solvay safety

policy requiring employees to obtain formal clearance before “breaking”—i.e.,

disconnecting or otherwise opening—a line containing hot water, pressure, or any

chemical. Aplt. Appx., Vol. II at 497-98; id. Vol. I at 236. The permit certifies that

employees have completed a checklist of precautions that are necessary before a line can

be safely disconnected. Checklist items include ensuring the employees involved have

sufficient training and safety equipment, that all equipment is de-energized, and that any

valves are closed. The checklist also includes a “lock out” procedure, in which an

employee places physical locks and/or chains on all valves and equipment to prevent

them from opening or re-energizing. Id. Vol. II at 498; id. Vol. I at 236.

       Mr. Smothers approached the acid tank and saw that a damaged suction flange or

“spool piece” connected to the acid pump had caused the problem. Aplt. Br. at 8. Mr.

Smothers prepared to remove the spool piece when Dan Mahaffey, another mechanic

working nearby on a different repair, suggested that Mr. Smothers should wait for a line

break permit. Mr. Smothers disagreed, saying the line break permit was not required

because the line was already broken. Mr. Mahaffey said “fine” and left. Aplt. Appx.,

Vol. II at 531.

       Mr. Smothers then removed the broken spool piece and took it to the maintenance

shop to repair it. Although doing this did not necessarily violate Solvay’s line break

policy, Mr. Smothers now concedes that removing the spool piece before completing the

lock out—i.e., placing a physical lock on the pump valve—was still a violation of
                                            -6-
Solvay’s safety policies. Id. at 463; see also Aplt. Br. at 8.

       When Mr. Smothers went to the maintenance shop, Mr. Mahaffey sought out Mr.

Brown to tell him about the disagreement with Mr. Smothers regarding the necessity of a

line break permit. Mr. Loredo heard this and intervened by authorizing a line break

permit. By this time, Mr. Brown had completed all or most of the lock out procedure.

Mr. Loredo radioed Mr. Smothers to tell him the line break permit was on its way and

told him to put his own lock on the pump valve before replacing the spool piece.

       Mr. Mahaffey then went to the maintenance shop and offered to assist, but Mr.

Smothers refused his help. Mr. Mahaffey took offense and accused Mr. Smothers of

hypocrisy because Mr. Smothers had previously reported other employees for safety

violations. According to Solvay, Mr. Smothers told Mr. Mahaffey, “I don’t want your

kind of help” and said he was “going to take a shit and wanted to know if [Mahaffey]

wanted to watch him to see if he did that right.” Aplt. Appx., Vol. II at 531. Mr.

Smothers described the interaction differently, asserting that Mr. Mahaffey provoked the

argument and began yelling and ranting at him. Other witnesses in the shop at the time

characterized the interaction as Mr. Smothers and Mr. Mahaffey “arguing,” id. at 512, or

“yelling at each other,” id. at 500, or as the men having “a confrontation,” id. at 518.

       At 5:00 a.m., Mr. Brown handed Mr. Smothers the line break permit. Mr.

Smothers finished repairing the spool piece. At about 6:00 a.m., he returned to the

containment area and placed his lock on the pump valve. Sometime between 6:40 and

6:45 a.m., Mr. Smothers installed the repaired spool piece, a process that took about ten
                                              -7-
minutes.

3. The investigation and termination

      Area Supervisor Erik Zimmerman arrived at work that morning between 5:00 and

6:00 a.m., and immediately received a call from Mr. Mahaffey, who wanted to make a

complaint about Mr. Smothers concerning the argument and Mr. Smothers’ removing the

spool piece without a line break permit. After he wrote up this complaint, Mr.

Zimmerman spoke with Mr. Smothers and drafted a summary of their conversation.

      Mr. Smothers acknowledged removing the spool piece before locking the pump

valve, saying he thought that was permissible because he could see the valve to confirm it

was closed and the line was already disconnected. Mr. Zimmerman agreed that a line

break permit might not have been required. But he expressed concern that Mr. Smothers

removed the spool piece before doing a lock out. Mr. Smothers told Mr. Zimmerman that

Mr. Mahaffey had come into the maintenance shop “yelling” and “ranting” at him. Aplt.

Appx., Vol. I at 134. Mr. Zimmerman did not tell Mr. Smothers about Mr. Mahaffey’s

version of the events or ask Mr. Smothers whether he actually made the statements Mr.

Mahaffey alleged.

      That same morning, three managers—Mr. Zimmerman, Safety Manager Rowdy

Heiser, and Maintenance Superintendent Jim Holley—called Mr. Smothers into a

meeting. Mr. Smothers arrived and tried to explain his version of the exchange with Mr.

Mahaffey, but Mr. Holley stopped him and said the managers were not interested in

hearing about the argument. Aplt. Appx., Vol. II at 421-22. They discussed the safety
                                           -8-
violation. Mr. Smothers explained what he had done and apologized for not locking the

pump valve before removing the spool piece. He promised it would not happen again.

Mr. Holley sent Mr. Smothers home pending an investigation.

          While Mr. Smothers was effectively suspended, Solvay continued its

investigation. Mr. Zimmerman visited Mr. Mahaffey’s home to obtain a more detailed

statement of Mr. Mahaffey’s version of the quarrel. Mr. Zimmerman did not make a

similar effort to contact Mr. Smothers for a more detailed statement of his version of

events. During this time, Mr. Smothers sent two emails to Solvay managers saying he

was “very worried that Solvay [was] going to use this incident as a reason to terminate

my employment due to the amount of time I have missed due to my disability.” Id. Vol. I

at 106.

          On August 27, 2008, Solvay told Mr. Smothers he was fired, the product of a

group decision by six managers (“decision makers,” or collectively, the “decision-making

group”). Site Manager Ron Hughes was the ultimate decision maker. The other five

managers in the decision-making group included Surface Operations Manager Todd

Brichacek, Human Resources Manager Jim Maxfield, Mr. Holley (Maintenance

Superintendent), Mr. Heiser (Safety Manager), and Mr. Wallendorff (Production

Superintendent).4



          4
        According to Mr. Smothers, Mr. Zimmerman participated in the investigation but
was not part of the ultimate decision-making group. The record is inconsistent as to
                                                                           Continued . . .
                                             -9-
      Before making their final decision, at least three decision makers—Mr. Heiser,

Mr. Holley, and Mr. Brichacek—personally talked with Mr. Mahaffey about his

argument with Mr. Smothers. No one from the decision-making group spoke with Mr.

Smothers about his version of the argument.5

      Five of the six decision makers testified that the argument with Mr. Mahaffey

weighed heavily in the group’s decision to fire Mr. Smothers.6 Mr. Hughes said that Mr.

Smothers’ role in the argument, particularly the alleged “restroom” comment,

demonstrated a “defiant attitude and hostile behavior” that warranted termination. Aplt.

Appx., Vol. II at 431, 429. Mr. Brichacek and Mr. Wallendorff also testified that the

group relied heavily on Mr. Mahaffey’s allegations—including Mr. Mahaffey’s

characterizations of Mr. Smothers’ behavior—in deciding what discipline was

appropriate.




______________________________________
Cont.

whether Mr. Zimmerman was a decision maker. To the extent this fact is material and
disputed, we accept Mr. Smothers’ version.
      5
       As noted above, Mr. Zimmerman did speak with Mr. Smothers about the
argument on one occasion, on the morning of the event. Mr. Zimmerman spoke with Mr.
Mahaffey multiple times, including the morning of the event and later when he went to
Mr. Mahaffey’s home.
      6
         Only one member of the decision-making group, Mr. Holley, testified that Mr.
Smothers was fired solely because of the safety violation and that the argument played no
role in the termination decision.

                                           -10-
4. Solvay’s disciplinary decisions after similar violations

       Mr. Smothers points to evidence of other employees who were treated more

favorably after committing serious safety violations.

       Two foremen, referred to as Mr. C and Mr. D, deliberately violated the lock out

policy by prying open a lock box to remove a key, then energizing equipment while work

was being done on it. The decision-making group in that instance included Mr. Hughes,

Mr. Brichacek, Mr. Holley, Mr. Wallendorff, and Mr. Maxfield. The group chose not to

terminate because the two foremen had taken at least some safety precautions, had

apologized, and had promised not to make the same mistake again.

       On other occasions, employees who violated Solvay’s safety policies were not

terminated. For example, a surface hourly worker who violated the lock out policy and

narrowly avoided serious injury received only a warning from Mr. Holley and Mr.

Hughes. [Id. at 435-36, 636-38] Additionally, Solvay knew that Mr. Holley violated

safety policies on at least one occasion when his direct supervisor, Mr. Brichacek,

received reports from multiple employees, including Mr. Smothers, that Mr. Holley had

arrived at work under the influence of alcohol. Mr. Holley was not disciplined. [Id. at

474, 485]

                                 B. Procedural History

       Mr. Smothers filed a complaint in the United States District Court for the District

of Wyoming, asserting six causes of action. He appeals from the district court’s grant of

summary judgment to Solvay on three claims: (1) unlawful retaliation for exercising his
                                           -11-
rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615; (2) unlawful

discrimination on the basis of disability in violation of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12112; and (3) breach of implied employment contract under

Wyoming law.7

                                    II. DISCUSSION

                                  A. Standard of Review

       We review summary judgment determinations de novo, applying the same

standard as the district court. See Turner v. Pub. Serv. Co., 563 F.3d 1136, 1142 (10th

Cir. 2009). We view facts in the light most favorable to Mr. Smothers as the non-moving

party and “draw all reasonable inferences” in his favor. Tabor v. Hilti, Inc., 703 F.3d

1206, 1215 (10th Cir. 2013). “[A]lthough the court should review the record as a whole,

it must disregard all evidence favorable to the moving party that the jury is not required

to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

When evaluating an employer’s motives or reasons, “motivation is itself a factual

question.” Hunt v. Cromartie, 526 U.S. 541, 549 (1999).

       “Summary judgment is appropriate only if [Solvay] shows ‘there is no genuine

dispute as to any material fact and [it] is entitled to judgment as a matter of law.’” Tabor,


       7
          The remaining three causes of action arose under state law and included various
claims for negligent and fraudulent misrepresentation and non-disclosure. Mr. Smothers
does not appeal the dismissal of these claims. After granting summary judgment on the
first three claims, the district court dismissed the remaining claims as moot. Mr.
Smothers does not challenge the dismissal of the latter three claims.

                                            -12-
703 F.3d at 1215 (quoting Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957

(10th Cir.2012)); see also Fed. R. Civ. P. 56(a). “A fact is material if, under the

governing law, it could have an effect on the outcome of the lawsuit. A dispute over a

material fact is genuine if a rational jury could find in favor of the nonmoving party on

the evidence presented.” Tabor, 703 F.3d at 1215 (quotations omitted).

                         B. The McDonnell-Douglas Framework

       This circuit analyzes employment-related claims based on circumstantial evidence

under the “analytical framework first articulated in McDonnell-Douglas [Corp. v. Green,

411 U.S. 792 (1973)].” Johnson v. Weld Cnty., 594 F.3d 1202, 1217 (10th Cir. 2010);

see also Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (McDonnell-

Douglas framework applies to ADA discrimination and FMLA retaliation claims).8

       The McDonnell-Douglas framework involves three steps: (1) the plaintiff must

establish a prima facie case of discrimination or retaliation; (2) the defendant employer

must offer a legitimate non-discriminatory reason for the adverse employment action; and

(3) the plaintiff must show there is at least a genuine issue of material fact as to whether

the employer’s proffered legitimate reason is genuine or pretextual. See MacKenzie v.


       8
         McDonnell-Douglas does not apply when the plaintiff presents direct evidence
that an employer discriminated on the basis of a protected characteristic, like disability.
See Tabor, 703 F.3d at 1216. Mr. Smothers does not challenge the application of
McDonnell-Douglas in his case. Although he presented evidence that Solvay previously
attempted to undermine his employment position because of absenteeism related to his
disability, he does not contend that this is direct evidence of discrimination on the basis
of disability.

                                             -13-
City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005).

1. Step 1: The prima facie case

       The particular elements a plaintiff must meet to establish a prima facie case

depend upon the claim. In this case, Mr. Smothers must satisfy different elements for his

FMLA and ADA claims, which we describe in our separate discussions of each claim.

       The plaintiff’s burden at the prima facie stage requires only a “small amount of

proof necessary to create an inference” of discrimination or retaliation, Orr v. City of

Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005), by “a preponderance of the

evidence,” E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir.

2000). This burden is “‘not onerous.’” Horizon/CMS Healthcare Corp., 220 F.3d at

1197 (quoting Texas Dep’t of Cmty .Affairs v. Burdine, 450 U.S. 248, 253 (1981)); see

also Tabor, 703 F.3d at 1216 n.4 (prima facie burden is “slight”); Annett v. Univ. of Kan.,

371 F.3d 1233, 1241 (10th Cir. 2004) (prima facie burden is “relatively lax”).

2. Step 2: Legitimate, non-discriminatory reason

       If the plaintiff successfully establishes a prima facie case, the burden shifts to the

employer to “articulate a legitimate, nondiscriminatory reason for the adverse

employment action.” Horizon/CMS Healthcare Corp., 220 F.3d at 1191. “The

defendant’s burden at this stage is one of production, not one of persuasion.” Id.

3. Step 3: Pretext

       Once the first two steps are satisfied, the burden shifts back to the plaintiff to

demonstrate that the employer’s justification is pretextual. “[A] plaintiff demonstrates

                                             -14-
pretext by showing either that a discriminatory reason more likely motivated the

employer or that the employer’s proffered explanation is unworthy of credence.” Zamora

v. Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007).

       Evidence of pretext may take any number of forms, including evidence the

plaintiff “was treated differently from other similarly-situated employees who violated

work rules of comparable seriousness.” Kendrick v. Penske Transp. Servs., Inc., 220

F.3d 1220, 1230 (10th Cir. 2000). An employer’s purported reason may also be

undermined by evidence the company failed to adequately investigate the offense for

which it purportedly fired the plaintiff. See Trujillo v. PacifiCorp, 524 F.3d 1149, 1159

(10th Cir. 2008); see also Kendrick, 220 F.3d at 1231-32.

                                  C. Analysis of Claims

       We begin with Mr. Smothers’ FMLA claim and conclude that Solvay is not

entitled to summary judgment because Mr. Smothers presented a genuine dispute of

material fact as to whether Solvay’s stated purpose for firing him was pretextual. Next,

we address Mr. Smothers’ ADA claim and conclude that Solvay is not entitled to

summary judgment because he met his prima facie burden and demonstrated a genuine

fact issue as to pretext. Finally, we turn to Mr. Smothers’ state law breach of implied

employment contract claim and conclude that Solvay is entitled to summary judgment

because Mr. Smothers failed to show a genuine dispute of fact as to whether Solvay

violated the terms of its employee handbook.



                                            -15-
1. The FMLA Claim

       “The FMLA entitles qualifying employees to take up to twelve weeks of unpaid

leave, without fear of termination . . . [for] ‘a serious health condition.’” Wysong v. Dow

Chem. Co., 503 F.3d 441, 446 (6th Cir. 2007) (quoting 29 U.S.C. § 2612(a)(1)(D)). It is

unlawful for an employer to retaliate against an employee for taking FMLA leave. 29

U.S.C. § 2615(a)(2); Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012);

Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007).

       To establish a prima facie case of retaliation under the FMLA, Mr. Smothers must

show (1) he engaged in a protected activity by taking FMLA-protected leave; (2) Solvay

took a materially adverse action against him; and (3) the circumstances permit an

inference of causal connection between the two events, in this case based on temporal

proximity. See Khalik, 671 F.3d at 1193; Metzler, 464 F.3d at 1171. The district court

held that Mr. Smothers met this burden.9 It also concluded that Solvay met its burden to

proffer a legitimate, non-discriminatory reason for firing him. The parties do not

challenge these conclusions on the first two McDonnell-Douglas steps.

       This FMLA claim turns on the third McDonnell-Douglas step—pretext. The


       9
         The district court also analyzed whether Mr. Smothers had stated separate prima
facie claims of FMLA retaliation based on three additional employment actions,
including verbal chastisements, a negative performance evaluation, and a promotion he
was denied. The court rejected each of these purported claims at the prima facie step.
On appeal, Mr. Smothers argues that the district court nevertheless should have
considered these events as background facts in support of his core FMLA retaliation
claim for his termination.

                                            -16-
district court held that Mr. Smothers “failed to demonstrate a triable issue of fact” as to

whether Solvay’s reasons for firing him were pretextual. Aplt. Appx., Vol. II at 595. We

disagree.

       The evidence viewed in Mr. Smothers’ favor shows that: (1) Solvay treated Mr.

Smothers differently from similarly situated employees who committed comparable

safety violations; (2) Solvay’s investigation into Mr. Smothers’ quarrel with Mr.

Mahaffey was inadequate; and (3) Solvay managers previously took negative action

against Mr. Smothers because of his FMLA-protected absences. Together these grounds

create a triable issue of fact as to whether Mr. Smothers’ FMLA leave was a substantial

motivation in Solvay’s decision to fire him.

1. Disparate treatment for similarly situated employees

       “A plaintiff may . . . show pretext . . . by providing evidence that he was treated

differently from other similarly-situated, nonprotected employees who violated work

rules of comparable seriousness.” Kendrick, 220 F.3d at 1232. Mr. Smothers points to

other employees who committed similar safety violations yet were not fired. Solvay

argues these employees were not similarly situated because (a) Mr. Smothers has not

proven that the violations involved the same decision makers, and (b) Mr. Smothers’

safety violation was worse than the others.

       a. Same decision makers

       To be “similarly situated” to the plaintiff, the other employee must “share the

same supervisor” or decision maker. E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los
                                              -17-
Angeles, 450 F.3d 476, 489 (10th Cir. 2006). This is because different treatment by itself

does not always indicate pretext. Differences in disciplinary decisions “may be explained

by the fact that the discipline was administered by different supervisors, or that the events

occurred at different times when the company’s attitudes toward certain infractions were

different.” E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1320 (10th Cir.1992) (quotations and

citations omitted).

       Solvay uses group decision making to discipline for safety violations and argues

that the composition of the group that fired Mr. Smothers was different from the

composition of the groups that disciplined the other employees Mr. Smothers identified.

The facts do not bear this out.

       Five of the six decision makers who fired Mr. Smothers also participated in at

least one decision in which a similarly situated employee was treated more favorably

after violating the same or comparable safety rules. Mr. Hughes, Mr. Brichacek, Mr.

Holley, and Mr. Maxfield chose not to fire Mr. C and Mr. D, the two foremen who

violated the lock out policy. Mr. Hughes and Mr. Holley also chose not to fire a surface

hourly worker who violated the lock out policy. Finally, Mr. Brichacek chose not to

discipline Mr. Holley for the presumably serious safety violation of being under the

influence of alcohol while at work.

       Although there is no clear legal rule as to how much overlap is needed among

decision maker groups for employees to be similarly situated, requiring absolute

congruence would too easily enable employers to evade liability for violation of federal
                                            -18-
employment laws. The district court erroneously rejected Mr. Smothers’ pretext

argument by insisting that the composition of the decision maker groups be precisely the

same in every relevant disciplinary decision. We disagree because there is more than

enough overlap to conclude the employees identified here were similarly situated to Mr.

Smothers.10

       b. Comparable offenses

       “[E]mployees who are similarly situated must have been disciplined for conduct of

comparable seriousness in order for their disparate discipline treatment to be relevant.”

McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (quotations omitted).

When comparing different treatment of similarly-situated employees, “the comparison

need not be based on identical violations of identical work rules; the violations need only

be of comparable seriousness.” Elmore v. Capstan, Inc., 58 F.3d 525, 530 (10th Cir.

1995) (quotations omitted).

       Solvay contends that Mr. Smothers’ offense was worse than the other employees’

offenses because he acted deliberately and violated a clear policy.11 But the record



       10
           Additionally, it is undisputed that Mr. Hughes was the ultimate decision maker
in all discipline cases. The record indicates he played an active role in these disciplinary
decisions and his involvement extended beyond mere pro forma approval. Nevertheless,
our conclusion does not rest solely on Mr. Hughes’s role because he was many levels
removed from Mr. Smothers’ direct supervisor.
       11
         Solvay insists that Mr. Smothers violated both the line break policy and the lock
out procedure. Testimony from several managers indicates the line break policy did not
                                                                            Continued . . .
                                            -19-
indicates other employees also deliberately violated clear policies. For example, foremen

Mr. C and Mr. D acted deliberately when they broke into a lock box and energized

equipment while it was being worked on. Solvay says it did not fire Mr. C or Mr. D

because they took at least some safety precautions, apologized, and promised not to

repeat the mistake. But Mr. Smothers also apologized and promised not to repeat the

mistake. Moreover, Mr. Smothers also took precautions by ensuring the valve was

closed. Solvay also emphasizes that Mr. Smothers had been trained on the safety rules.

But the record indicates Solvay required every employee to complete the same safety

training. Drawing reasonable inferences in Mr. Smothers’ favor, the evidence shows Mr.

Smothers and the similarly situated employees he identified all received the same

training.

       In short, Mr. Smothers has established a genuine and material factual issue as to

whether he was punished more harshly than similarly situated employees after

comparable safety violations. A reasonable jury could therefore infer that the safety

violation was pretext for unlawful retaliation. Horizon/CMS Healthcare Corp., 220 F.3d

at 1198 (“[D]ifferential treatment of similarly-situated employees may support a finding

of pretext.” (emphasis omitted)).

       Solvay responds that, unlike these other employees, Mr. Smothers’ offense
______________________________________
Cont.

clearly apply to an already broken line, but Mr. Smothers acknowledges that he violated
the lock out procedure by removing the spool piece before placing a lock on the pump.

                                           -20-
extended beyond the safety violation to his quarrel with Mr. Mahaffey. Mr. Smothers’

behavior toward Mr. Mahaffey might have been relevant. But as we discuss next, a jury

could still reasonably infer pretext because Solvay did not adequately investigate the

quarrel that purportedly drove its decision.

2. Insufficient investigation into the co-worker quarrel

       A “failure to conduct what appeared to be a fair investigation of” the violation that

purportedly prompted adverse action may support an inference of pretext. Trujillo, 524

F.3d at 1160; cf. BCI Coca-Cola Bottling Co., 450 F.3d at 488 (Employer may “defeat

the inference that an employment decision was” a product of reliance on a biased

subordinate by “simply asking an employee for his version of events,” and not “rely[ing]

exclusively on the say-so of the biased subordinate”).

       Managers in the decision-making group said Mr. Smothers was fired because his

quarrel with Mr. Mahaffey showed he had been “defiant,” “hostile,” and “aggressive.”

Aplt. Appx., Vol. II at 429. But Mr. Smothers emphatically disputes these

characterizations, and the same managers acknowledge their beliefs were based almost

entirely on Mr. Mahaffey’s version of events. Three decision makers personally spoke

with Mr. Mahaffey to hear his allegations regarding Mr. Smothers’ behavior. None heard

Mr. Smothers’ version of the encounter. During the only meeting Mr. Smothers had with

any decision maker, Mr. Holley even refused to allow him to talk about the quarrel. Aplt.

Appx., Vol. II at 421-22.

       Solvay notes that the decision makers read Mr. Zimmerman’s summary of his
                                               -21-
conversation with Mr. Smothers, which included several sentences about the quarrel.

But simply reading this summary did not make the investigation fair or adequate. Mr.

Zimmerman did not tell Mr. Smothers about Mr. Mahaffey’s allegations, nor did he give

Mr. Smothers a chance to explain or deny those allegations. See Aplt. Appx., Vol. II at

501-03, 516-18.12 The decision makers ultimately relied on one-sided information and

accepted Mr. Mahaffey’s allegations and negative characterizations of Mr. Smothers’

behavior.13


       12
          As noted above, Mr. Zimmerman even traveled to Mr. Mahaffey’s home to
collect additional detail about Mr. Mahaffey’s version of events. He did not make similar
efforts to learn Mr. Smothers’ version.
       13
          In rejecting Mr. Smothers’ pretext argument, the district court relied heavily on
its findings that Mr. Mahaffey “told [Mr. Smothers] twice what to do” and that Mr.
Smothers refused to follow these purported instructions. Aplt. Br. at 28. This refers to
two interactions: (1) before Mr. Smothers removed the spool piece from the broken line,
Mr. Mahaffey suggested he needed a line break permit; and (2) Mr. Mahaffey later went
to the maintenance shop and offered to help, which the district court took to be a second
instruction.
        The district court’s finding improperly resolved disputed facts and inferences in
Solvay’s favor and ignored fatal problems with Solvay’s inadequate, one-sided
investigation. Under Mr. Smothers’ version of events—which decision makers did not
hear—neither interaction would be characterized as an instruction. Mr. Mahaffey’s first
statement seemed more like a suggestion from a colleague about how best to proceed.
Moreover, Mr. Mahaffey and Mr. Smothers held the same position, and there is no
evidence Mr. Mahaffey had authority over Mr. Smothers. Solvay does not explain why
failing to comply with a peer’s “instruction” would have transformed an ordinary safety
violation—like those committed by similarly situated employees—into a terminable
offense.
        As for the second purported instruction, under Mr. Smothers’ version of events,
this interaction seemed to be a mutual, personal disagreement between peers based on
events that had already happened, such as their earlier difference of opinion about the line
break permit and Mr. Smothers’ history of reporting others for safety violations. By the
                                                                               Continued . . .
                                            -22-
      If Solvay’s decision makers had allowed Mr. Smothers to respond to Mr.

Mahaffey’s allegations before they fired him, we could perhaps accept that Solvay found

Mr. Mahaffey’s version of events more credible. But we must “examine the facts as they

appear to the [people] making the decision.” E.E.O.C. v. C.R. England, Inc., 644 F.3d

1028, 1044 (10th Cir. 2011) (quotations omitted) (emphasis omitted). To that end, the

record suggests that Solvay’s decision makers deliberately prevented Mr. Smothers from

defending his actions with respect to the quarrel and consequently reached their

conclusions about what transpired based on one-sided information—then fired Mr.

Smothers based largely on those tenuous conclusions.

      In sum, a reasonable jury could find that Solvay’s investigation into the quarrel

between Mr. Smothers and Mr. Mahaffey was not fair or adequate. This inadequate

investigation and Solvay’s disparate treatment of similarly situated employees who

violated comparable safety rules would allow a reasonable jury to conclude that Solvay’s

purported reason for firing Mr. Smothers was pretextual.

3. Evidence of previous retaliatory acts

      Our conclusion that Mr. Smothers demonstrated a triable fact issue concerning


______________________________________
Cont.

time this second interaction occurred, Mr. Smothers had already removed the spool piece.
And it is undisputed that the line break permit and the lock out procedure were completed
before Mr. Smothers installed the repaired spool piece. Thus, even if this second
interaction were a genuine instruction to secure a line break permit before completing the
repair, it is not clear how Mr. Smothers failed to comply.

                                           -23-
pretext finds further support in the evidence of Solvay’s negative comments and actions

concerning his FMLA-protected absences. Mr. Smothers argues that these previous

actions demonstrate bias and support the inference that Solvay used the safety violation

as pretext to fire him.

       The district court held that these past events could not support independent FMLA

claims because they did not alter Mr. Smothers’ job status and therefore were not serious

enough to be materially adverse employment actions.14 Solvay mistakenly argues that

the district court’s holding makes these facts irrelevant. Even when an incident of

alleged employer discrimination or retaliation does not support an independent retaliation

claim, it may be relevant as background evidence in a pretext inquiry. See Nat’l Ry.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Croy v. Cobe Labs, Inc., 345 F.3d

1199, 1203 (10th Cir. 2003).

       In depositions, Solvay managers acknowledged that managers and co-workers had

long complained about Mr. Smothers’ FMLA-protected absences. Mr. Smothers

presented evidence that Solvay refused to promote him and gave him negative ratings on

his recent performance evaluations expressly because of his FMLA-protected absences.

Additionally, Mr. Wallendorff admitted that he tried to force Mr. Smothers to change

shifts until Human Resources advised him this would be unlawful. Aplt. Appx., Vol. II at


       14
         The district court also concluded that the statute of limitations had likely run on
any claim based on Solvay’s refusal to promote him based on his FMLA-protected
absences.

                                            -24-
478-79. Although Mr. Wallendorff did not ultimately follow through with the forced

shift change, he testified that he and others remained openly frustrated with Mr.

Smothers’ absences. They repeatedly asked senior managers and Human Resources if

there was “something else [they could] do.” Id. at 479.

       This background evidence lends further support to the inference that Solvay was

frustrated with Mr. Smothers’ use of FMLA leave and seized upon his safety violation

and quarrel with Mr. Mahaffey as a pretext to fire him and avoid the inconvenience

caused by his FMLA-protected absences.

                                      *      *      *

       For these reasons, we conclude Mr. Smothers has established a genuine issue of

material fact as to whether Solvay’s stated reasons for firing him were pretextual. We

therefore reverse the district court’s grant of summary judgment on Mr. Smothers’

FLMA claim.

2. ADA Claim

       The district court rejected Mr. Smothers’ ADA claim on two grounds: (1) Mr.

Smothers failed to make out a prima facie case because he was not disabled within the

meaning of the ADA; and alternatively, (2) he failed to demonstrate pretext. The district

court erred on both grounds.

       a. The prima facie case

       “Congress enacted the [Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq.,] in 1990 to remedy widespread discrimination against” persons with
                                           -25-
disabilities. PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). To establish a prima

facie case of employment discrimination under the ADA, Mr. Smothers must present

evidence that (1) he is disabled within the meaning of the ADA; (2) he is qualified to

perform the essential functions of his job with or without accommodations; and (3) he

was terminated “under circumstances which give rise to an inference that the termination

was based on [his] disability.” Morgan, 108 F.3d at 1324; see also Anderson v. Coors

Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999). Solvay does not challenge the

second or third prima facie element.

       As for the first element, Congress provided three statutory definitions for

“disability” under the ADA: A plaintiff may show either ‘(A) a physical or mental

impairment that substantially limits one or more of the major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having such an

impairment.’” Johnson, 594 F.3d at 1218 (quoting 42 U.S.C. § 12102(1)). At the district

court, Mr. Smothers argued that he satisfied both (A) and (C). In its summary judgment

motion, Solvay challenged (C) but made no argument regarding (A). Mr. Smothers

understood this as a concession as to (A) and therefore did not argue the issue in his

opposition to summary judgment. The district court nonetheless concluded that Mr.

Smothers had not satisfied either (A) or (C). On appeal, Mr. Smothers argues that the

district court should not have addressed (A) because it was uncontested.

       After careful review of Solvay’s summary judgment materials, we find little to

indicate that Solvay contested Mr. Smothers’ disability qualification under subsection
                                            -26-
(A). The district court nevertheless chose to consider the question. We think Solvay

came perilously close to waiving its arguments on this issue.15

       But even if Solvay’s arguments are not waived, they fail. As noted above, Mr.

Smothers’ burden at the prima facie stage is “not onerous,” and his medical records

provide sufficient evidence to satisfy this burden. Horizon/CMS Healthcare Corp., 220

F.3d at 1197 (quoting Burdine, 450 U.S. at 253). To demonstrate disability for purposes

of an ADA claim under subsection (A), Mr. Smothers must show: (1) he has an

impairment that (2) substantially limits (3) a major life activity. Doyal v. Okla. Heart,

Inc., 213 F.3d 492, 495 (10th Cir. 2000).16 Mr. Smothers asserts that (1) his neck and

back condition and the associated pain he experiences (2) substantially limits his ability

to perform (3) several major life activities, including sleeping. Solvay does not contest

the first requirement. The third requirement is a question of law, which Mr. Smothers

       15
           In its brief, Solvay urges us to affirm the district court’s holding that Mr.
Smothers was not disabled under the ADA. But at oral argument, Solvay conceded that
its summary judgment arguments focused on the pretext issue without clearly contesting
Mr. Smothers’ disability under subsection (A).
        16
           Congress amended this standard in the ADA Amendments Act of 2008 with the
express purpose of reversing the narrow judicial interpretation of disability articulated in
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and other cases. The statute stated
that prior court interpretations of the ADA had not conformed to the congressional intent.
See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. The
Amendments Act created a broader definition of disability to protect more individuals,
by, inter alia, expanding what is considered a major life activity and directing courts to
interpret “substantial limitation” broadly in favor of coverage. See id.
        We apply the older, narrow judicial rule in Mr. Smothers’ case because he was
fired before the ADA Amendments Act of 2008 became effective. See Carter v.
Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1144 (10th Cir. 2011) (ADA Amendments
Act not retroactive).

                                            -27-
satisfies. See Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999) (“We hold that

sleeping is a major life activity under the ADA.”). Mr. Smothers’ prima facie case

therefore turns on the second requirement, which is a question of fact. See Carter v.

Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011) (substantial

limitation is “a question of fact for the jury”); see also Doebele v. Sprint/United Mgmt.

Co., 342 F.3d 1117, 1129 (10th Cir. 2003).

       To survive summary judgment, Mr. Smothers must show that a reasonable jury

could find that his medical condition substantially limited his ability to sleep. His

limitation was substantial if he was “significantly restricted as to the condition, manner or

duration” of sleep “as compared to . . . the average person.” Berry v. T-Mobile USA, Inc.,

490 F.3d 1211, 1216-17 (10th Cir. 2007) (quotations omitted). “Factors to be considered

are: ‘the nature and severity of the impairment; the duration or expected duration of the

impairment; and the permanent or long term impact, or the expected permanent or long

term impact of or resulting from the impairment.’” Id. (quoting 29 C.F.R.

§ 1630.2(j)(2)); see also Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994) (“We

are guided by the definition found in [EEOC regulations].”).

       The record shows that Mr. Smothers’ medical condition required multiple

surgeries over several years. See Aplt. Appx., Vol. II at 532-72. Numerous medical

treatments failed to resolve his condition or eliminate his severe pain. Medical records

for more than a dozen medical visits between June 2006 and September 2008 show that


                                             -28-
Mr. Smothers consistently complained of an inability to sleep.17 He consistently reported

waking between four and six times each night because of his pain and being able to sleep

only four or six hours a night—in spite of multiple prescription pain medications and

various prescription sleep aids. See id.18

       These facts would allow a reasonable jury to conclude that Mr. Smothers’ sleep

was substantially limited, which satisfies the first prima facie element to show that he has

a disability within the meaning of the ADA. Because the other prima facie elements are

not challenged, we therefore conclude that Mr. Smothers satisfied his prima facie burden.

       b. Pretext analysis

       In our analysis of Mr. Smothers’ FMLA claim, we determined Mr. Smothers has

       17
          We previously have held in other cases that certain sleeping difficulties do not
give rise to an inference of disability. But plaintiffs in those cases failed to produce
evidence about the duration or severity of their impairments. See Johnson v. Weld Cnty.,
594 F.3d 1202, 1218 n.10 (10th Cir. 2010) (lack of record evidence prevented disability
determination based on plaintiff's difficulty sleeping); Humbles v. Principi, 141 F. App'x
709, 712 (10th Cir. 2005) (unpublished) (plaintiff who claimed to get four to five hours
of sleep per night "failed to present any evidence" of substantial limitation). Mr.
Smothers' documented medical history shows his sleeping issues have been virtually
intractable and limiting for years despite numerous treatment efforts. A jury could
therefore reasonably conclude that his impairment is sufficiently permanent or long term
to qualify as a disability.
       18
          As noted above, the older, narrow judicial rule governing the definition of
disability applies in this case. Under this older rule, if an “impairment is corrected by
mitigating measures . . . it does not substantially limit a major life activity.” Sutton, 527
U.S. at 483 (quotations omitted). In this case, Mr. Smothers’ medical records include
evidence of “mitigating measures,” in the form of prescription sleep aids, pain
medication, surgeries, and other medical treatments. But the records do not indicate these
measures corrected his impairment or resolved his sleeping problems. Mr. Smothers
experienced consistent problems sleeping even after taking these mitigating measures.

                                             -29-
demonstrated a genuine issue of material fact whether Solvay’s stated reasons for firing

him—the safety violation and quarrel with Mr. Mahaffey—were pretextual. When a

plaintiff demonstrates that an employer’s proffered reasons are “unworthy of credence,” a

jury may “infer the ultimate fact of discrimination” or retaliation. Swackhammer v.

Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007). Thus, the showing of

pretext for purposes of the FMLA claim extends to the ADA claim.

                                       *      *      *

         We therefore reverse the district court’s grant of summary judgment on the ADA

claim.

3. State Law Claim

         The district court rejected Mr. Smothers’ state law claim for breach of an implied

employment contract, concluding there was no genuine issue of material fact as to

whether Solvay had violated the terms of its employee handbook. We affirm because Mr.

Smothers has not shown that a reasonable jury could conclude that Solvay violated the

terms of its handbook when it terminated him.

         Under Wyoming law, breach of an implied employment contract arises if an

employer fails to follow its own required procedures or fires an employee without cause.

Lifecare Centers of America, Inc. v. Dexter, 65 P.3d 385, 391 (Wyo. 2003). An

employee handbook may provide the basis for the terms of an implied employment

contract. Id. Wyoming law allows immediate termination for serious offenses when

expressly permitted by the employee handbook. Burbank v. Wyodak Res. Dev. Corp., 11
                                             -30-
P.3d 943, 947-48 (Wyo. 2000).

       When Mr. Smothers began employment with Solvay’s predecessor in 1990, the

company provided him with an employee handbook outlining workplace policies and

disciplinary procedures (“the Handbook”). The district court concluded that the

Handbook was an implied employment contract, and Solvay does not challenge this

holding. The Handbook contained a four-step progressive disciplinary process, with

termination as a last resort. But it also contained a provision allowing Solvay to

terminate an employee immediately for a serious offense, including a safety violation.

See Aplt. Appx., Vol. I at 79.

       When determining whether an employer followed its own procedures, a court

should ask whether “the factual basis on which the employer concluded [the employee

committed an offense] was reached honestly, after an appropriate investigation and for

reasons that are not arbitrary or pretextual[.]” Sheaffer v. State ex rel. University of Wyo.,

202 P.3d 1030, 1043 (Wyo. 2009) (quotations omitted). Although this standard uses the

word “pretext,” this inquiry differs from the McDonnell-Douglas pretext analysis.

       In a McDonnell-Douglas analysis, we ask whether Solvay’s disciplinary decisions

violated federal employment law or laws that make certain motives unlawful. If an

employer’s proffered legitimate reason for a termination is factually true—for example,

Mr. Smothers did commit a safety violation—the reason may nevertheless be deemed

pretextual if circumstances suggest that it does not adequately explain the employer’s

actions—for example, if the employer was more lenient with similarly-situated
                                             -31-
employees who committed the same violation. See, e.g., Swackhammer, 493 F.3d at

1167. A pretext finding in a McDonnell-Douglas analysis allows a jury to infer that the

employer’s decision was motivated in substantial part by a specific motive made unlawful

under federal law—for example, discrimination on the basis of disability as prohibited by

the ADA.

       In contrast, Mr. Smothers’ Wyoming state law claim for violation of an implied

employment contract alleges that Solvay’s disciplinary decision violated a particular

employment term, or provision, in the Handbook. The Handbook provision at issue does

not prohibit any particular motive. Nor does it require Solvay to exercise its discretion

consistently when responding to different employees’ violations. It sets out the

disciplinary policy Solvay will follow for its employees.

       Thus, to prove Solvay violated his implied employment contract, Mr. Smothers

must show that it failed to comply with the disciplinary policy as defined in the

Handbook. But the Handbook provision “unambiguously gives [Solvay] the discretion to

discharge employees who” violate safety rules. Burbank, 11 P.3d at 944. And Mr.

Smothers concedes that he violated a safety rule. He has not shown how Solvay’s

decision to discharge him violated the terms of the Handbook.

       If Mr. Smothers ultimately proves that his disability or his FMLA-leave played a

substantial role in Solvay’s decision to terminate him after his admitted safety violation,

he will have shown violations of federal law. But it does not follow that violation of one

law means a violation of another law or of a particular contract term.
                                            -32-
      We therefore affirm the district court’s grant of summary judgment to Solvay on

Mr. Smothers’ breach of contract claim.

                                  III. CONCLUSION

      For the foregoing reasons, we reverse the district court’s grant of summary

judgment as to Mr. Smothers’ FMLA and ADA claims. We affirm the grant of summary

judgment as to Mr. Smothers’ state law claim for breach of contract.




                                          -33-
