Medina v. Dumas

2020 UT App 166
THE UTAH COURT OF APPEALS
JOSE M EDINA,
Appellant,
v.
JEFF D UMAS C ONCRETE C ONSTRUCTION LLC
AND JEFF D UMAS,
Appellees.
Opinion
No. 20190654-CA
Filed December 17, 2020
Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 180907336
Daniel F. Bertch, Attorney for Appellant
Stephen J. Traynor and Scarlet R. Smith,
Attorneys for Appellees
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 	Asserting that his termination resulted from his pursuit of
a workers’ compensation claim, thus violating public policy, Jose
Medina 	sued 	his 	former 	employer, 	Jeff 	Dumas 	Concrete
Construction, LLC and Jeff Dumas (collectively, JDCC). The
district court granted summary judgment in favor of JDCC.
Medina appeals, and we reverse.

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20190654-CA 	2 	2020 UT App 166
BACKGROUND1
¶2 	JDCC hired Medina as a laborer on its construction crew
in 2015. Medina worked as an at-will employee under the
direction 	of 	a 	JDCC 	supervisor 	(Supervisor). 	Supervisor
communicated with Medina regarding his work schedule, job
sites, vacation, and other time off largely via text message,
although sometimes the communication was verbal.
¶3 	In August 2017, Medina suffered a work-related injury to
his back and shoulder when a large concrete form he was lifting
fell 	and 	knocked 	him 	to 	the 	ground. 	Medina 	informed
management 	but 	continued 	working 	despite 	his 	injury,
exacerbating his pain. He did not speak of his injury again until
around October 18, 2017, when “he felt his back finally go out”
as he lifted a heavy bucket on a different job site. When Medina
reported this aggravation, he was told, “Get off the job site right
now if you are injured.” JDCC thereafter placed Medina on light
duty, which lasted until his termination nine months later.
¶4 	Following the aggravation of his injury, Medina promptly
filed for workers’ compensation benefits with JDCC’s insurer,
the Workers’ Compensation Fund of Utah (WCFU). Although
WCFU paid for some of Medina’s treatment, it eventually denied
further 	treatment 	“based 	on 	a 	pre-existing 	pathology 	in
[Medina’s] 	back.” 	Medina 	subsequently 	filed 	a 	workers’
compensation claim with the Utah Labor Commission in March
2018, which WCFU defended on behalf of JDCC. As part of that
1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party,” and we
ordinarily “recite the facts accordingly.” Ockey v. Club Jam, 2014
UT App 126, ¶ 2 n.2, 328 P.3d 880 (quotation simplified). We
follow that practice to the extent possible in this opinion, but the
basis for the court’s ruling and the arguments presented require
that we share JDCC’s version of events in some detail.

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case, Medina’s deposition was noticed up by JDCC’s workers’
compensation counsel for July 16, 2018.
¶5 	Although 	Medina 	initially 	attended 	physical 	therapy
during work hours, Supervisor soon informed him that he
would have to attend therapy on his own time. Nevertheless,
due to his back injury, Medina missed work once in November
2017 and nine times between March and July 2018. Each time he
missed work, the parties agree, Medina informed Supervisor via
text message that he would be absent.2 Medina also “personally
requested and was granted . . . from Jeff Dumas” a vacation from
July 2–6, concerning which Medina texted Supervisor on July 1
stating that “the next week I will not be able to go to work.”3
2. In his memorandum opposing summary judgment, Medina
contended that “[a]ny days missed were approved in advance.”
In support of this claim, he cited his affidavit in which he
asserted that he “never missed work without asking for time off,
or notifying [Supervisor] that [he] was unable to work due to
[his] back injury.” Supervisor asserted in an affidavit that for six
of his absences, Medina informed him shortly after 4:00 a.m. that
he could not make it to work that day. This assertion does not
contradict Medina’s statement in his affidavit, i.e., that he had
always 	notified 	Supervisor 	when 	he 	was 	unable 	to 	work.
Furthermore, 	a 	translation 	from 	Spanish 	to 	English 	of 	the
relevant text messages, including the times and dates of the
messages, 	which 	Medina 	attached 	as 	an 	exhibit 	to 	his
memorandum corroborates Supervisor’s claim. In its summary
judgment order, the district court characterized as uncontested
the fact that for several of his absences, “Medina sent . . . text
messages to [Supervisor] . . . indicating that he would not be to
work that day due to his back condition.”
3. The original text messages were in Spanish. Medina attached
an English translation of the text messages as an exhibit to his
memorandum 	opposing 	summary 	judgment. 	Although
Supervisor also translated some of the text messages as part of
(continued…)

Medina v. Dumas
20190654-CA 	4 	2020 UT App 166
Supervisor responded, “From what I see it looks like you no
longer want to work,” to which Medina replied, “Yes . . . but I’m
[gone].”
¶6 	In 	an 	affidavit, 	Supervisor 	stated 	that 	Medina’s
“repeatedly taking days off work without permission and with
short notice left [his] crew short-handed many times and was
very 	frustrating.” 	He 	also 	attested 	that 	following 	Medina’s
week-long absence in July, he told Dumas,
[Medina] is missing work once or twice a week
almost every week. He missed work all of last
week. He never asks permission, and never gives
me advance notice. He texts me the morning of the
day he’s missing work that he’s not coming in.
What should I do with him?
Supervisor 	stated 	that 	Dumas—whom 	Medina 	claims 	had
personally given him permission to take the week off—replied,
“Just get rid of him.”
¶7 	Medina informed Supervisor that he would be taking July
16 off “to attend [his] deposition.”4 In his affidavit, Medina
acknowledged that “[t]his left [Supervisor] short-handed for the
project we were working on, so on that day [Supervisor] took the
(…continued)
his affidavit, we use the translations Medina provided, which do
not differ in substance from those of Supervisor.
4. In his affidavit, Supervisor denied that Medina notified him of
his intended absence on July 16, 2018, and further asserted that
Medina “did not communicate to [him] that he was having his
deposition 	taken.” 	And 	in 	briefing 	its 	summary 	judgment
motion, JDCC contended that it never received actual notice of
the deposition from its counsel because the notice was mailed to
the wrong address.

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remaining workers to a different job site.” During the deposition,
Supervisor texted Medina, “[Y]ou are fired you don’t feel like
working anyways if you want to ask [Dumas] but that’s all.”
Medina’s counsel later emailed the attorney representing JDCC
in the workers’ compensation proceeding, inviting JDCC to
“rescind the firing and I won’t sue for wrongful termination.”
JDCC did not rescind the termination. In October 2018, Medina
initiated the current lawsuit for wrongful termination, alleging
that JDCC fired him “because he made a workers compensation
claim.”
¶8 	In its answer, JDCC stated that it did not know Medina
was giving a deposition, much less the date of the deposition. It
also 	denied 	firing 	Medina 	in 	retaliation 	for 	his 	making 	a
workers’ compensation claim, instead asserting that
Medina was fired for not showing up to work for
numerous days, without any notice or explanation
to JDCC; for failing to answer his telephone in
response to calls from employees of JDCC in an
effort to determine why he hadn’t shown up for
work; and for taking a week long unauthorized
vacation that was never approved by anyone at
JDCC.
JDCC also asserted “that the purported incident” that allegedly
caused 	Medina’s 	injuries 	“never 	occurred 	and 	was 	wholly
fabricated by [Medina].” JDCC contended that Medina instead
“was injured while working for a prior employer, and not while
employed by JDCC.”
¶9 	JDCC later moved for summary judgment. In opposing
the motion, Medina focused on five facts5 that he contended
5. In his memorandum opposing summary judgment, Medina
also disputed some of JDCC’s factual allegations: that he did not
seek medical care for his injury; that he never discussed his
(continued…)

Medina v. Dumas
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created 	a 	genuine 	dispute 	about 	whether 	his 	workers’
compensation claim was a substantial factor in JDCC’s decision
to fire him:
a. 	[JDCC’s] knowledge of the pending workers’
compensation claim;
b. 	The 	timing 	of 	[Medina’s] 	firing 	during 	his
deposition;
c. 	[JDCC’s] 	“silence” 	in 	not 	responding 	to
[Medina’s] counsel’s offer to allow [Medina] to
be reinstated after his firing;
d. 	Statements in [JDCC’s] Answer demonstrating
“[JDCC’s] animus” towards [Medina];
e. 	Statements made to [Medina] to “get off the job
site” 	following 	his 	injury 	as 	demonstrating
[JDCC’s] 	animus 	towards 	workers’
compensation claims.
¶10 	The district court granted JDCC’s motion for summary
judgment, concluding that “[i]n analyzing the admissible facts
and law in this case, . . . the record before this Court is
insufficient for a jury to conclude that [Medina] could meet the
‘substantial factor’ requirement under Utah law based upon the
(…continued)
injury with management or coworkers; that he did not “show up
to work” on certain days, see supra ¶ 5 & note 2; that he never
informed Supervisor or Dumas of the reason for his week-long
absence in July; that he never informed Supervisor or Dumas of
the reason for his July 16 absence; and that JDCC terminated him
for repeatedly missing work. As discussed in note 1, we view the
facts of the case in the light most favorable to Medina 	in
resolving this appeal.

Medina v. Dumas
20190654-CA 	7 	2020 UT App 166
facts 	advanced 	by 	[Medina] 	in 	opposition 	to 	the 	present
motion.” Specifically, the court stated that Medina “may not rely
on [each of the five facts] to support the required causal nexus
for 	his claim” 	because 	(a) 	“mere 	knowledge 	of 	a workers’
compensation claim is insufficient under Utah law to meet the
‘substantial factor’ requirement” and “the fact that there was a
nearly nine-month interval between his claim filing and his
termination shows the temporal disconnect”; (b) the fact that
JDCC 	terminated 	Medina 	during 	his 	deposition 	“does 	not
establish that [Medina] was terminated because of his workers’
compensation claim” and “[t]he fact that there was nearly a
nine-month interval between his claim filing and his termination
shows the temporal disconnect”; (c) “[JDCC’s] silence after being
sent a letter from [Medina’s] counsel following [Medina’s] firing
during his deposition has no probative value and does not
preponderate in favor of establishing that [Medina’s] claim was
a ‘substantial factor’ in [JDCC’s] motivation to terminate him”;
(d) JDCC’s answer alleging that Medina fabricated the incident
that 	caused 	his 	initial 	injury 	“was made 	months following
[Medina’s] termination and after [Medina] had sued [JDCC] for
wrongful termination and does not preponderate in favor of
support of [JDCC’s] improper motivation or state of mind at the
time of [Medina’s] termination”; and (e) JDCC’s “ambiguous
statement” to “‘Get off the job site’” does not “show [JDCC’s]
alleged 	animus 	towards 	[Medina] 	for 	having 	a 	workers’
compensation claim.”6 Additionally, relying on Gordon v. Home
Depot U.S.A., Inc., 191 F. Supp. 3d 1271 (D. Utah 2016), the court
stated 	that 	“[t]he 	multi-month 	delay 	between 	[Medina’s]
workers’ compensation filing and his termination is inconsistent
with [his] claims.”
6. The district court did not explain its rationale for this last
conclusion. Perhaps the court viewed the statement as a toss-up
in terms of whether it was a sensible instruction for an injured
employee, lest he remain on-site and worsen the injury, or
whether it was a mean-spirited or unempathetic directive.

Medina v. Dumas
20190654-CA 	8 	2020 UT App 166
¶11 	Medina appeals.
ISSUE AND STANDARD OF REVIEW
¶12 	Medina challenges the district court’s grant of JDCC’s
motion 	for 	summary 	judgment, 	specifically 	the 	court’s
determination that he presented insufficient evidence to satisfy
the 	substantial 	factor 	test. 	“We 	review a 	trial 	court’s legal
conclusions and ultimate grant or denial of summary judgment
for correctness, viewing the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.”7 Heartwood Home Health & Hospice LLC v. Huber, 2020 UT
7. JDCC argues that because “[d]istrict courts have wide latitude
in making determinations of relevance, probative value, and
prejudice of evidence,” we should review the court’s evidentiary
determination for an abuse of discretion. JDCC further contends
that 	Medina 	waived 	his 	challenge 	to 	the 	court’s 	summary
judgment order because his “appeal overlooks the crux of the
court’s decision—none of the evidence relied on to support his
claim is admissible” under the Utah Rules of Evidence “either
because [the facts] are irrelevant under rule 401 or because they
are too speculative under rule 403.”
We 	disagree 	with 	JDCC’s 	characterization 	of 	the 	court’s
summary 	judgment 	order 	as 	consisting 	of 	rulings 	on
admissibility 	under 	the 	Utah 	Rules 	of 	Evidence. 	Before
discussing the five relevant facts, the court specifically stated,
with our emphasis, that “[i]n analyzing the admissible facts and
law in this case, [it] concludes that the record before [it] is
insufficient for a jury to conclude that [Medina] could meet the
‘substantial factor’ requirement under Utah law based upon the
facts advanced by [Medina].” And following its analysis of the
facts, the court concluded by stating, with our emphasis, that
“based upon [its] analysis of the evidence submitted by [Medina]
to resist [JDCC’s] Motion for Summary Judgment, . . . the Court
concludes that the admissible evidence submitted by [Medina] is
(continued…)

Medina v. Dumas
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App 13, ¶ 11, 459 P.3d 1060 (quotation simplified). See also Giles
v. Mineral Res. Int’l, Inc., 2014 UT App 259, ¶ 6, 338 P.3d 825
(reviewing, for correctness, the district court’s determination
that the appellant provided insufficient evidence to withstand
summary judgment).
ANALYSIS
¶13 	Under Utah law, an employer may terminate an at-will
employee 	“for 	any 	reason 	(or 	no 	reason) 	except 	where
prohibited by law.” Touchard v. La-Z-Boy Inc., 2006 UT 71, ¶ 3,
148 P.3d 945 (quotation simplified). The decision to discharge an
at-will 	employee 	is 	therefore 	presumed 	valid, 	but 	that
presumption may be overcome if, among other things, “the
termination of employment constitutes a violation of a clear and
substantial 	public 	policy.” 	Id. 	(quotation 	simplified). 	The
discharge of an employee in retaliation for seeking workers’
compensation benefits under Utah’s Workers’ Compensation
Act is one such violation of public policy. Id. ¶ 48.
(…continued)
at best ambiguous, and lacking in sufficient probative value.”
Although the court did later muddy the waters a bit, as JDCC
points out, by stating that “none of [Medina’s] five alleged facts
provides admissible support,” because the court never invoked
the rules of evidence and given the larger context of the court’s
discussion of each fact on which Medina relied, we interpret the
order as discussing whether the facts were sufficient to satisfy
Medina’s burden of proof under the substantial factor test, and
any discussion of their relevance was limited to that context.
Indeed, absent a thorough analysis of the remaining elements of
a wrongful termination claim, which the court did not undertake
here, such a determination would be inappropriate because
evidence that is irrelevant to one element of the claim might
prove relevant—and therefore admissible—as to another.

Medina v. Dumas
20190654-CA 	10 	2020 UT App 166
¶14 	To prevail on a claim of wrongful termination on the
ground that it violated public policy, an employee must first
establish a prima facie case by showing “(i) that his employer
terminated him; (ii) that a clear and substantial public policy
existed; (iii) that the employee’s conduct brought the policy into
play; and (iv) that the discharge and the conduct bringing the
policy into play are causally connected,” i.e., “that the conduct
bringing the public policy into play ‘was a cause of the firing.’”
Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395, 404 (Utah 1998)
(emphasis in original) (footnote omitted) (quoting Wilmot v.
Kaiser Aluminum & Chem. Corp., 821 P.2d 18, 28–29 (Wash. 1991)).
Upon such a showing by an employee, the burden then shifts to
the employer to articulate and produce admissible evidence of a
legitimate reason for the termination. Id. at 405 & n.5. Lastly,
“[w]hen 	faced 	with 	evidence 	of 	a 	legitimate 	reason 	for
termination, the employee must prove” by a preponderance of
the evidence “that engaging in the protected conduct was a
‘substantial factor’ in the employer’s motivation to discharge the
employee.” Id. at 405, 409 (quoting Wilmot, 821 P.2d at 30).
¶15 	Here, the district court presumed, “[f]or purposes of this
motion 	only,” 	that 	Medina 	provided 	sufficient 	evidence 	to
establish a prima facie case of wrongful termination, thereby
shifting the burden to JDCC to articulate and support with
evidence a legitimate reason for terminating Medina. The court
then concluded that JDCC’s articulated reason for “terminating
[Medina] for chronically missing work, culminating in a missed
week of work in July 201[8], all to the detriment of JDCC,”
satisfied this burden.8 As a result, the burden then shifted back
to Medina to establish that his filing for workers’ compensation
8. Our resolution of this appeal does not necessitate that we
address whether an employer may fire an employee for absences
caused by a work-related injury that forms the basis for a
workers’ compensation claim. See Wilmot v. Kaiser Aluminum
& Chem. Corp., 821 P.2d 18, 31–32 (Wash. 1991) (discussing the
jurisdictional split on this question).

Medina v. Dumas
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benefits was a substantial factor in JDCC’s decision to fire him.
Following an analysis of Medina’s evidence in support of this
contention, the court concluded that Medina “failed to meet his
burden in introducing evidence that would create a genuine
issue of material fact as to whether his workers’ compensation
claim was a ‘substantial factor’ in motivating his firing so as to
defeat summary judgment.” Accordingly, we limit our analysis
to whether Medina presented sufficient evidence to demonstrate
a dispute of material fact relevant to his ability to meet the
substantial factor test.
¶16 	Utah appellate courts have yet to address the substantial
factor 	prong 	of 	the 	wrongful 	termination 	analysis 	in 	any
meaningful detail other than to note that it “is an inquiry that
defies precise definition.” See id. at 410. But as an initial matter, it
clearly presents a higher burden than the fourth element of the
prima 	facie 	case, 	which 	merely 	requires that 	the 	employee
“show only that the conduct bringing the public policy into play
was a cause of the firing.” Id. at 405 (emphasis in original)
(quotation 	otherwise 	simplified). 	Otherwise, 	the 	employee’s
satisfaction of the prima facie case would automatically satisfy
the substantial factor test, rendering it superfluous.
¶17 	Additionally, 	under 	the 	plain 	meaning 	of 	the 	term
“substantial,” 	the 	employee 	must 	show 	that 	his 	or 	her
engagement in the protected activity carried considerable—as
opposed to negligible—weight in the employer’s decision to
terminate the employee. See Substantial, New Oxford American
Dictionary 1736 (3d ed. 2010) (defining “substantial” as “of
considerable 	importance, 	size, 	or 	worth”); 	Jean 	C. 	Love,
Retaliatory Discharge for Filing a Workers’ Compensation Claim: The
Development of a Modern Tort Action, 37 Hastings L.J. 551, 571
(1986) (“Under the ‘substantial’ or ‘significant’ factor test, the
plaintiff must prove that retaliation was an important factor
motivating the discharge.”).
¶18 	This reading of “substantial” is further supported by the
definition of the term in other legal contexts. In discussing the

Medina v. Dumas
20190654-CA 	12 	2020 UT App 166
substantial factor test as applied to the tort of negligence, the
Second Restatement of Torts states,
The word “substantial” is used to denote the fact
that the defendant’s conduct has such an effect in
producing the harm as to lead reasonable men to
regard it as a cause, using that word in the popular
sense, in which there always lurks the idea of
responsibility, 	rather 	than 	in 	the 	so-called
“philosophic sense,” which includes every one of
the great number of events without which any
happening would not have occurred.
Gardner v. Gardner, 2019 UT 61, ¶ 24, 452 P.3d 1134 (emphasis in
original) (quoting Restatement (Second) of Torts § 431 cmt. a
(Am. Law Inst. 1965)). See also Substantial-cause test, Black’s Law
Dictionary 1657 (10th ed. 2014) (defining the “substantial-cause
test” 	as 	“[t]he 	principle 	that 	causation 	exists 	when 	the
defendant’s conduct is an important or significant contributor to
the plaintiff’s injuries”). And in defining the term “substantially
contributed” in the divorce context,9 our Supreme Court, relying
on the plain meaning of the word “substantial” and the Second
Restatement of Torts’ definition, concluded that it related to
“conduct that was a significant or an important cause of the
divorce.” Gardner, 2019 UT 61, ¶¶ 22, 24, 27.
¶19 	On the other hand, the employee’s burden under the
substantial factor test is not so high that it requires the employee
to 	establish 	that 	retaliation 	was 	the 	sole 	motivation 	for
termination or that the employer would not have terminated the
employee 	but 	for 	the 	fact 	that 	the 	employee 	engaged 	in
9. See Utah Code Ann. § 30-3-5(9)(c) (LexisNexis Supp. 2020)
(defining “Fault” as “any of the following wrongful conduct
during the marriage that substantially contributed to the breakup
of the marriage relationship”) (emphasis added).

Medina v. Dumas
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protected activity. In other words, the employee need not prove
that absent the employee’s engagement in protected activity, the
employer 	would 	not 	have 	discharged 	him 	or 	her 	for 	the
legitimate reason the employer asserts in litigation. See Wallace v.
Milliken & Co., 389 S.E.2d 448, 450 (S.C. Ct. App. 1990) (stating
that 	under 	the 	substantial 	factor 	test, 	“the 	claimant 	must
establish that retaliation was an important factor motivating his
discharge” but “need not show that the employer discharged
him 	‘solely’ 	because 	of 	the 	workers’ 	compensation 	claim”);
Hollenback v. Shriners Hosps. for Children, 206 P.3d 337, 344 (Wash.
Ct. App. 2009) (“The plaintiff need not show that retaliation was
the only or ‘but for’ cause of the adverse employment action, but
he or she must establish that it was at least a substantial factor.”)
(quotation simplified). Cf. Gardner, 2019 UT 61, ¶ 22 (“Under the
plain 	meaning 	of 	the 	term 	‘substantially 	contributed,’ 	the
conduct at issue . . . does not have to be the first cause, or the
only cause.”). Thus, an employee may prevail on an unlawful
termination 	claim 	if 	the 	employer 	fired 	the 	employee 	for
multiple 	reasons, 	including 	the 	employee’s 	engagement 	in
protected 	activity—but 	not 	where 	the 	protected 	activity,
although perhaps a reason for termination, did not ultimately
play an important role in the employer’s decision to fire the
employee.
¶20 	Turning now to the case at hand, we must determine
whether 	Medina 	presented 	sufficient 	evidence 	to 	avoid
summary judgment on the substantial factor test—a different
inquiry than whether he presented sufficient evidence to prove
he was entitled to prevail on his wrongful termination claim.
Summary judgment is appropriate only where “there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). In
determining whether a genuine issue of material fact exists, we
ask “whether reasonable jurors, properly instructed, would be
able to come to only one conclusion, or if they might come to
different 	conclusions, 	thereby 	making 	summary 	judgment
inappropriate.” Heslop v. Bear River Mutual Ins. Co., 2017 UT 5,
¶ 20, 390 P.3d 314 (quotation simplified).

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20190654-CA 	14 	2020 UT App 166
¶21 	In opposing summary judgment, Medina was entitled to
rely on circumstantial evidence to establish that his filing for
workers’ 	compensation 	benefits 	was 	a 	substantial 	factor 	in
JDCC’s 	decision 	to 	terminate 	him. 	See 	USA 	Power, 	LLC 	v.
PacifiCorp, 2010 UT 31, ¶ 65, 235 P.3d 749 (“[I]nferences drawn
from circumstantial evidence . . . may create a genuine issue of
material fact.”). See also Wallace, 389 S.E.2d at 450 (“Because it is
highly unlikely that an employer will declare retaliation as the
motive 	for 	discharge, 	the 	claimant 	must 	ordinarily 	rely 	on
circumstantial evidence.”); Hollenback, 206 P.3d at 344 (“Because
employers rarely will reveal they are motivated by retaliation,
plaintiffs ordinarily must resort to circumstantial evidence to
demonstrate retaliatory purpose.”) (quotation simplified). And
in viewing the proffered evidence, we draw “all reasonable
inferences in favor of the nonmoving party.” Heslop, 2017 UT 5,
¶ 21 (quotation simplified). Of course, “to be reasonable, the
inference must present something more than pure speculation.”
Id. In other words, an inference is unreasonable if “there is no
underlying 	evidence 	to 	support 	the 	conclusion.” 	Id. 	¶ 	22
(quotation simplified). See IHC Health Services, Inc. v. D & K
Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588 (“The word ‘genuine’
indicates that a district court is not required to draw every
possible inference of fact, no matter how remote or improbable,
in favor of the nonmoving party. Instead, it is required to draw
all reasonable inferences in favor of the nonmoving party.”)
(emphasis in original).
¶22 	Here, Medina’s theory of liability is that JDCC discharged
him 	“in 	retaliation 	for 	a 	perceived 	fraudulent 	workers
compensation claim.” In the district court, Medina offered five
facts in support of his contention that his filing for workers’
compensation 	benefits 	was 	a 	substantial 	factor 	in 	JDCC’s
decision to terminate him. But on appeal, Medina advances only
four of those five facts: that JDCC did not revoke Medina’s
termination after his attorney alerted it to the questionable
timing; that Medina was told to “Get off the job site” when he
notified management of the aggravation to his injury; that JDCC
stated in its answer that Medina fabricated JDCC’s connection to

Medina v. Dumas
20190654-CA 	15 	2020 UT App 166
his 	injury; 	and 	that 	JDCC 	terminated 	Medina 	during 	his
deposition. Accordingly, we address only those four facts and
conclude that three of the four facts were sufficiently shown to
satisfy 	the 	substantial 	factor 	test 	for 	purposes 	of 	avoiding
summary judgment.
¶23 	We agree with the district court that JDCC’s non-response
to 	the 	email 	Medina’s 	counsel 	sent 	notifying 	JDCC 	that 	it
terminated 	Medina 	during 	his deposition 	does not 	support
Medina’s 	argument. 	Medina 	contends 	that 	this 	fact 	is
“probative of the question whether JDCC fired [him] without
knowing 	that 	he 	was 	exercising 	his 	workers 	compensation
rights.” But the court already accepted as undisputed the fact
that Medina had informed Supervisor that he would be missing
work on July 16, 2018, to attend his deposition. And in any
event, for purposes of summary judgment, we presume that
JDCC had knowledge of the deposition when it discharged
Medina. See infra note 10.
¶24 	Conversely, we agree with Medina that, for purposes of
resisting summary judgment, the remaining facts he relies on are
sufficient to satisfy the substantial factor inquiry. First, JDCC’s
statement to Medina after he reported the aggravation of his
injury to “Get off the job site right now if you are injured” could,
in 	certain 	contexts, 	be 	evidence 	of 	JDCC’s 	animus 	toward
workers’ compensation claims. JDCC argues that the statement
“can be subject to several interpretations.” For example, JDCC
suggests that the speaker “might have cared a great deal for
Medina and wanted him to seek treatment immediately if he
was 	injured.” 	We 	agree 	that, 	at 	trial, 	the 	factfinder 	might
reasonably infer this intent behind the statement. But at the
summary judgment stage, we view “all reasonable inferences
drawn 	[from 	the 	facts] 	in 	the 	light 	most 	favorable 	to 	the
nonmoving party.” Heartwood Home Health & Hospice LLC v.
Huber, 	2020 	UT 	App 	13, 	¶ 	11, 	459 	P.3d 	1060 	(quotation
simplified). Accordingly, because it is also reasonable to infer
that the speaker made the statement out of frustration at the
prospect of a forthcoming workers’ compensation claim, we

Medina v. Dumas
20190654-CA 	16 	2020 UT App 166
presume this was the case for purposes of our analysis. And
such 	frustration 	is 	certainly 	probative 	of 	JDCC’s 	attitude
toward its employees seeking workers’ compensation benefits
and 	possible 	motivation 	for 	terminating 	Medina 	for 	doing
just that.
¶25 	Second, 	JDCC’s 	belief 	that 	Medina 	fabricated 	his
account of being injured while working for JDCC is relevant
to Medina’s contention that JDCC fired him “in retaliation for
a perceived 	fraudulent 	workers 	compensation 	claim.” 	The
district 	court 	determined 	that 	JDCC’s 	statement 	in 	its
answer that 	“‘the 	purported 	incident 	never 	occurred 	and
was wholly fabricated by [Medina]’ . . . does not preponderate
in favor 	of 	[Medina]” 	because 	the 	statement 	was 	made
months after JDCC discharged Medina and therefore did not
“preponderate 	in 	favor 	or 	support 	of 	[JDCC’s] 	improper
motivation 	or 	state 	of 	mind 	at 	the 	time 	of 	[Medina’s]
termination.” 	We 	disagree. 	Although 	JDCC’s answer 	is 	not
direct 	evidence 	of 	its 	suspicion 	that 	Medina 	fabricated 	the
incident that caused his injury, it is circumstantial evidence, and
for 	purposes 	of 	summary 	judgment, 	the 	statements 	in 	its
answer are 	properly 	treated 	as 	admissions 	where 	evidence
has not been presented to contradict the pleading. See Utah R.
Civ. P. 56(c)(1)(A); Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439.
JDCC 	made 	the 	statement 	only 	three 	months 	after 	it
terminated Medina. 	Given 	the 	relatively 	short 	temporal
disconnect 	between 	the 	two 	events, 	the 	jury 	might
reasonably infer JDCC’s retaliatory intent at the time it fired
Medina. 	And 	in 	the 	absence 	of 	affidavits 	or 	other 	sworn
statements contending the contrary, Medina was entitled to rely
on JDCC’s answer.
¶26 	Finally, the fact that JDCC terminated Medina during his
deposition 	in 	his 	workers’ 	compensation 	case 	supports 	an
inference that it had done so in retaliation for his filing and
pursuing 	a 	workers’ 	compensation 	claim. 	For 	summary
judgment purposes, we assume that JDCC knew, or at least is
chargeable with knowing, that Medina was being deposed that

Medina v. Dumas
20190654-CA 	17 	2020 UT App 166
day.10 The 	record 	reflects JDCC’s frustration 	with 	Medina’s
continued absences from work—at least many of which Medina
attributed to his injury. And given this frustration, it is not
unreasonable to infer that Medina missing work to attend a
deposition 	in 	a 	case 	that 	JDCC 	allegedly 	believed 	to 	be
10. The parties disagree on whether JDCC knew that Medina
was being deposed that day. JDCC contends that there is no
evidence “that [it] received notice of the deposition” or “that the
WCFU attorney informed JDCC of the deposition,” and “it is
undisputed that the notice of the deposition was mailed to the
wrong address.” In contrast, Medina stated in his affidavit that
he “told [Supervisor] that [he] needed time off on July 16, 2018 to
attend 	[his] 	deposition.” 	JDCC 	contends 	that 	we 	should
disregard Medina’s sworn statement because he “has offered no
evidence to support his declaration” and “Medina’s statements
seem to be contradicted by the text messages between Medina
and [Supervisor].”
As an initial matter, Medina did not state whether he told
Supervisor about the deposition by text message or in some
other way. Thus, the absence of a text about the deposition does
not, without more, contradict Medina’s claim. And in any event,
“a single sworn statement is sufficient to create an issue of fact”
although the “affidavit must do more than reflect the affiant’s
opinions and conclusions.” Heslop v. Bear River Mutual Ins. Co.,
2017 UT 5, ¶ 23, 390 P.3d 314 (quotation simplified). See also Utah
R. Civ. P. 56(c)(4); Wasatch Oil & Gas, LLC v. Reott, 2007 UT App
223, ¶ 35, 163 P.3d 713 (“On summary judgment, the trial court
must 	not 	weigh 	evidence 	or 	assess 	credibility.”) 	(quotation
simplified). Here, Medina’s affidavit stated that he informed
Supervisor of his scheduled deposition. And while Supervisor,
in his own affidavit, denied that Medina informed him of the
deposition, “at the summary judgment phase we must view the
facts in the light most favorable to [the nonmoving party].”
Cochegrus v. Herriman City, 2020 UT 14, ¶ 32, 462 P.3d 357. Thus,
in reviewing the court’s summary judgment ruling, we must
assume that Medina informed Supervisor of the deposition.

Medina v. Dumas
20190654-CA 	18 	2020 UT App 166
fraudulent might have been the straw that broke the camel’s
back, causing JDCC to terminate his employment then and there.
Although JDCC might not have terminated Medina based solely
on his workers’ compensation claim and his absence from work
to attend the deposition, under this scenario it would have
played a sufficiently important role to satisfy the substantial
factor test, thereby precluding summary judgment in JDCC’s
favor.
¶27 	JDCC also contends that, “considering all the undisputed
facts, no reasonable juror could conclude that Medina was fired
for 	pursuing 	a 	workers’ 	compensation 	claim 	because 	it 	is
equally, if not more likely, that he was fired for too many
absences.” But this argument reflects a misunderstanding of the
substantial 	factor 	test. 	JDCC 	apparently 	assumes 	that 	the
employee 	must 	establish 	that 	the 	engagement 	in 	protected
activity was the sole or primary reason for the termination. But
as discussed above, the substantial factor test requires only that
the protected activity be an important factor in the decision to
discharge the employee, even though there might have been
other, legitimate reasons for the termination. See supra ¶¶ 16–19.
¶28 	Citing Gordon v. Home Depot U.S.A., Inc., 191 F. Supp. 3d
1271 (D. Utah 2016), a federal trial court decision, JDCC also
argues that “there is a temporal disconnect between Medina’s
filing 	for 	workers’ 	compensation 	benefits 	which 	severs any
apparent causal connection.” But a lapse of time between the
protected activity and the employer’s adverse action—even a
significant 	lapse—while 	relevant, 	is 	insufficient 	by 	itself 	to
preclude 	satisfaction 	of 	the 	substantial 	factor 	test. 	See
Restatement (Second) of Torts § 433 & cmt. f (Am. Law Inst.
1965) (“[W]here it is evident that the influence of the actor’s
negligence is still a substantial factor, mere lapse of time, no
matter how long, is not sufficient to prevent it from being the
legal cause of the other’s harm”). Thus, although “[o]ne factor
supporting a retaliatory motive is a close proximity in time
between the protected activity and the employment action,”
Hollenback v. Shriners Hosps. for Children, 206 P.3d 337, 344 (Wash.

Medina v. Dumas
20190654-CA 	19 	2020 UT App 166
Ct. App. 2009), the employer may not necessarily be able to rely
on the reverse to obtain summary judgment. This is especially
true in this case where, although there was a gap of many
months between Medina’s first report of his injury and his
termination, there was no gap between his missing work for his
workers’ compensation deposition and his termination.
¶29 	In Gordon, there was nearly a two-year time lapse between
the employee’s filing for workers’ compensation benefits and his
termination. 191 F. Supp. 3d at 1281. Based on this, the court
ruled that the employee’s wrongful termination claim failed to
withstand 	summary 	judgment 	partially 	because 	“there 	is 	a
temporal disconnect between the protected activity and [the
employee’s] termination.” Id. But this statement was coupled
with 	the 	court’s 	determination 	that 	the 	employee 	had 	not
provided evidence upon which he could rely to establish that his
filing for workers’ compensation was a cause of his termination.
Id. 	at 	1280–81. 	The 	court 	held, 	based 	on 	the 	fact 	that 	the
employee had received negative performance reviews in two
categories of customer service months prior to his underlying
injury, that the negative reviews he obtained following his injury
did 	not 	“evidence 	a 	pattern 	of 	hostility 	that 	connects 	[the
employee’s] discharge to his workers’ compensation claims.” Id.
at 1281. The court also determined that the employee could not
rely on the fact that he was disciplined for committing an act he
characterized as “negligible,” because he “provided no evidence
to support that characterization.” Id. The court determined that
the 	employee 	could 	not 	rely 	on 	the 	fact 	that 	he 	was 	not
disciplined 	for 	making 	a 	racially 	insensitive 	comment 	to 	a
coworker until after he had been injured for a second time
because the employer’s investigation of the incident had begun
prior to that injury and the employee “ha[d] not provided the
court with any evidence to suggest that any other associate
would have been treated more favorably for engaging in the
same behavior.” Id. at 1281–82. Finally, the employee could not
rely on his assertion that the employer encouraged its managers
to 	disincentivize 	employees 	from 	filing 	for 	workers’

Medina v. Dumas
20190654-CA 	20 	2020 UT App 166
compensation because he again “failed to provide sufficient
evidence to establish such a connection.” Id. at 1282.
¶30 	Here, Medina was initially injured in August 2017, but it
was not until October 2017, after he aggravated this injury, that
he sought benefits from WCFU. After WCFU denied further
treatment “based on a pre-existing pathology in [Medina’s]
back,” he filed his workers’ compensation claim with the Utah
Labor Commission in March 2018. JDCC terminated Medina that
July—nine months after he sought benefits from WCFU but only
four 	months 	after 	he 	filed 	a 	claim 	with 	the 	Utah 	Labor
Commission. This temporal gap is significantly smaller than that
in Gordon. But more importantly, unlike in Gordon, there is
evidence on which Medina may rely in support of the inference
that his filing for workers’ compensation played a substantial
role in JDCC’s decision to discharge him. Accordingly, the
temporal disconnect alone, regardless of duration, is insufficient
to entitle JDCC to summary judgment.
CONCLUSION
¶31 	Because 	Medina 	presented 	sufficient 	circumstantial
evidence to support reasonable inferences that would satisfy the
substantial factor test if believed by the ultimate factfinder, the
district court erred in granting summary judgment to JDCC. We
reverse and remand for trial or such other proceedings as may
now be in order.11
11. Because Medina prevails on appeal, we deny JDCC’s request
for attorney fees, premised on rule 33 of the Utah Rules of
Appellate Procedure. See Utah R. App. P. 33(a). We also deny
JDCC’s request that Medina cover the cost of the transcript of the
summary judgment hearing that it wanted in the record. See id.
R. 12(a)(2).