The Society of Human Resources Management is not the only employer facing litigation for denying a service animal. On January 13, 2026, the Flaming Gorge Resort saw its motion to dismiss with respect to its denial of a service animal for an employee go down in flames (pun intended). The case is O’Connor v. Colett’s Mountain Resorts, Inc., here, decided by the United States District Court for Utah. As usual, the blog entry is divided into categories and they are: facts; O’Connor’s ADA failure to accommodate claim survives a motion to dismiss; O’Connor’s ADA wrongful termination claim on the basis of disability survives a motion to dismiss; O’Connor’s ADA retaliation claim for making a reasonable accommodation request survives the motion to dismiss; O’Connor’s Fair Housing Act (FHA’s) failure to provide a reasonable accommodation claim survives the motion to dismiss; O’Connor’s FHA’s discriminatory statement claim survives the motion to dismiss; O’Connor’s FHA’s denial of housing claim survives the motion to dismiss; O’Connor’s FHA’s retaliation claim survives the motion to dismiss; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the caregories. One thing new about this particular blog entry, is that I used Lexis AI Protégé to summarize the facts of the case. I have become increasingly frustrated with the facts section of my blog. I either have trouble condensing it or rephrasing it in a way that doesn’t bore the readers to tears or make the section too long (we are all very busy, and I have become increasingly concerned that readers may be engaging in unnecessary scrolling). Lexis AI Protégé really helped with that. The critical features about my blog are the way I attack how a court decides a case and my thoughts/takeaways. Therefore, there is no way I will be using AI for either of those purposes as both of those are unique to me and represent the value added of the blog.

 

I

Facts (I used Lexis AI Protégé to summarize the facts. I did not use Lexis AI Protégé for any other purpose when drafting this blog entry)

 

Jacob O’Connor has type 1 diabetes and owns a trained diabetic alert dog named Smokey. Smokey is trained to alert Mr. O’Connor or another human when his blood glucose levels drop or spike. In March 2024, Mr. O’Connor was hired as a front desk clerk by Collett’s Mountain Resorts and disclosed his Type I diabetes during the interview process.

 

Collett’s provided optional on-site employee housing at an affordable rate that significantly reduced commutes to the remote location. Rent was deducted directly from employee paychecks. Mr. O’Connor chose to move into the employer-provided housing and signed Housing Guidelines and Contract with provisions for pet fees, understanding that pets were allowed in employee housing and that guests could bring pets for additional fees.

 

 

Mr. O’Connor initially did not bring Smokey when moving in ‘to avoid unnecessary stress to the service animal while arranging the environment and gathering information about the living space, including the size of dog crate which would be able to fit into the area.’ During this time, ‘Mr. O’Connor risked unnoticed nocturnal blood sugar drops.’ He requested to move from the smallest to largest bedroom to accommodate a mini refrigerator for insulin and kennel for his service animal, which management granted.

 

A few days after moving in, Mr. O’Connor called to inform management he was returning with his service dog but was told pets were not allowed in employee housing. He explained Smokey was a service animal necessary for his diabetes, obtained roommate consent, and secured a doctor’s note verifying his need. Management, including owner Maretta Bair, maintained the denial, stating he should have disclosed the service dog when hired and that animals cannot be in shared employee housing. After Mr. O’Connor protested the denial and mentioned seeking legal advice, Ms. Bair terminated his employment, citing dishonesty about the service animal, arguing about the denial, and threatening legal action. O’Connor then filed suit alleging violations of the ADA, FHA, and Utah’s equivalent to the FHA. The defendant then filed a motion to dismiss.

 

II

O’Connor’s Failure To Accommodate Claim Survives A Motion To Dismiss

 

  1. The 10th Circuit utilizes the direct or indirect evidence test for figuring out whether a claim can proceed.
  2. At the motion to dismiss stage, a plaintiff only needs to state a plausible claim.
  3. Establishing a prima facie case for failure to accommodate, means a plaintiff has to show: 1) plaintiff was disabled; 2) plaintiff was otherwise qualified; 3) plaintiff requested a plausible reasonable accommodation; and 4) defendants refused to accommodate his disability. It is not a high standard to meet.
  4. Defendants argument that the ADA only protects reasonable accommodations that enable an employee to perform the essential functions of their job does not fly because the ADA also prohibits discrimination in regards to privileges of employment.
  5. “Privilege,” means a peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.
  6. The 10th Circuit has held that the ADA’s discrimination prohibition is interpreted broadly so that it reaches the entire spectrum of employment-based disability discrimination. The 10th Circuit requires only that the discrimination relates to some aspect of employment.
  7. Employer-provided housing is a privilege of employment because the housing is a particular benefit provided by the employer specifically to employees and not to the general public. While the employees were not required to stay in the housing and still pay rent, housing was only available to employees and it had unique benefits for those employees-namely, an affordable rate and a short commute. So, any discrimination in the housing is related to some aspect of employment as the employer-provided and managed the benefit.
  8. While EEOC regulations interpreting the ADA are only persuasive, it is clear that housing would be covered under this employer’s ADA obligations. 29 C.F.R. §1630.2(o)(iii) and the EEOC’s comments regarding same, respectively state that reasonable accommodation includes: 1) modifications or adjustments enabling a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities; and 2) the obligation to make reasonable accommodation apply to all services and programs provided in connection with employment, and to all nonwork facilities provided or maintained by an employer for use by its employees (emphasis in opinion), including employer-provided cafeterias, lounges, gymnasiums, auditorium, transportation, and the like.
  9. Accordingly, plaintiff plausibly pled a failure to accommodate claim under the ADA.

 

III

O’Connor’s Wrongful Termination Claim On The Basis Of Disability Survives A Motion To Dismiss

 

  1. For a plaintiff to present a claim of wrongful termination, a plaintiff has to show: 1) plaintiff is disabled within the meaning of the ADA; 2) plaintiff can perform, either with or without reasonable accommodation, the essential functions of the desired job (otherwise qualified); and 3) the defendant terminated plaintiff because of plaintiff’s disability.
  2. Termination is “because of disability,” if it stems from the disability itself or from the employee’s need for reasonable accommodation.
  3. A close timing of plaintiff’s accommodation request and plaintiff’s firing, along with the explanations made by an employee of the defendants, support a plausible inference of disability-based termination.
  4. Plaintiff never conceded that defendants explanations were the real reason for his termination. In any event, plaintiff need not rebut defendants claimed reasons for the termination at the motion to dismiss stage. Instead, plaintiff only needs to state a plausible claim that plaintiff was terminated because of plaintiff’s disability or because of plaintiff’s need for a reasonable accommodation.
  5. Plaintiff did allege that defendants terminated him shortly after telling the defendants that he needed the service dog for his disability, which is an allegation that supports an inference that the accommodation request itself may have triggered the firing. So, it is plausible that defendants terminated the plaintiff because of plaintiff’s disability or because of the need to make reasonable accommodation for his disability. Therefore, plaintiff’s ADA wrongful termination claim survives.

 

IV

O’Connor’s Retaliation Claim For Making A Reasonable Accommodation Request Survives The Motion To Dismiss

 

  1. Proving up a prima facie case for retaliation under the ADA requires: 1) an employee engaged in protected opposition to discrimination; 2) a reasonable employee would have found the challenge action materially adverse; and 3) a causal connection existed between the protected activity and the materially adverse action.
  2. While plaintiff demanded a housing accommodation and not a workplace accommodation, the ADA protects against discrimination in regards to privileges of employment.
  3. A request for accommodation can constitute protected activity supporting a retaliation claim if it is sufficiently direct and specific so as to give notice that an employee needs a reasonable accommodation.
  4. Plaintiff informed multiple managers of his need for a service dog and made clear that it was an accommodation for his disability. He even asserted that he believed denying the accommodation was illegal. All of those requests put the defendants on notice that the employee needed an accommodation. Therefore, plaintiff plausibly engaged in protected opposition to discrimination by requesting a reasonable accommodation to access a privilege of employment, in this case employer-provided housing.
  5. Plaintiff presented direct factual allegations that defendants terminated him because he engaged in protected activity. Plaintiff’s alleged that he was told that he was fired because he had argued about the denial of the service animal, and said that he wanted to seek legal advice from an attorney regarding the denial of that service animal. So, plaintiff’s request for an accommodation was protected activity, and terminating him for disputing its denial provided direct evidence linking the adverse action to the protected activity. Hence, the ADA retaliation claim survives.

 

V

O’Connor’s FHA’s Failure To Provide A Reasonable Accommodation Claim Survives The Motion To Dismiss

 

  1. In the 10th Circuit, a failure to accommodate claim under the FHA involves showing that a requested accommodation was reasonable and necessary to afford a resident with a disability equal opportunity to use and enjoy a dwelling.
  2. In the 10th Circuit, an FHA failure to accommodate claim involves a plaintiff showing: 1) plaintiff is a person with a disability; 2) defendant knew or reasonably should have known of the plaintiff’s disability; 3) the plaintiff needs an accommodation to have an equal opportunity to use and enjoy his dwelling; 4) the accommodation is reasonable; and 5) defendant refused to make the accommodation.
  3. An employee need not use magic words to request an accommodation. In this case, plaintiff made clear to the defendants of his need for reasonable housing accommodation multiple times.
  4. Whether the dog was necessary at the motion to dismiss stage involves taking the plaintiff’s allegations as true and making all inferences in his favor. Plaintiff alleged that the dog was a trained diabetic alert dog. While the dog was maybe not certified, defendants do not cite any legal requirement that the dog be certified. Instead, the only legal requirement is that the dog was necessary. Plaintiff alleged that without his trained diabetic alert dog, he risked unnoticed blood sugar drops that could result in coma or death. So, a trained diabetic alert dog that helps a plaintiff avoid coma or death is plausibly a necessary accommodation.
  5. It is also plausible that the service dog may still be necessary for long-term housing even if plaintiff spent a couple of nights without the dog. An example is if someone in a wheelchair moves into housing where there is a single step, the person in the wheelchair may be capable of moving into the housing before the ramp is installed. For a little bit and under great discomfort, the person in a wheelchair may get by. Under no circumstances, could a landlord later claim that installing a ramp to go up that one step is not a necessary accommodation. The same goes for the plaintiff in this case. Plaintiff enduring a couple of days without his service dog does not prove the service dog is unnecessary for equal access and enjoyment of long-term housing.
  6. An accommodation is reasonable under the FHA when it imposes no fundamental alteration in the nature of the program or undue financial or administrative burdens. Plaintiff alleged that guests and some other employees were allowed to bring pets on the premises. Accordingly, plaintiff’s request to bring a trained service dog onto the premises would be a reasonable accommodation unlikely to cause any fundamental alteration or undue burden. So, the FHA reasonable accommodation claim survives.

 

VI

O’Connor’s FHA’s Discriminatory Statement Claim Survives The Motion To Dismiss

 

  1. Since the elements of a discriminatory statement claim and a reasonable accommodation claim under the FHA are the same, defendants arguments that the discriminatory statement claim should be dismissed fails for the same reasons as why their reasonable accommodation dismissal claims fail.

 

VII

O’Connor’s FHA’s Denial Of Housing Claim Survives The Motion To Dismiss

 

  1. Since defendants argue that plaintiff’s claim for denial of housing get dismissed for the same reasons as for the reasonable accommodation claims getting dismissed, and the court has already denied dismissal of those claims, the denial of housing claim dismissal arguments also fail.

 

VIII

O’Connor’s FHA’s Retaliation Claim Survives The Motion To Dismiss;

 

  1. 42 U.S.C. §3617 of the FHA, here, makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed any right granted or protected by the FHA.
  2. The 10th Circuit has adopted either of two approaches when it comes to FHA retaliation claims. The first approach involves a plaintiff showing: 1) plaintiff was engaged in protected activity; 2) plaintiff suffered an adverse action in the form of coercion, intimidation, threats, or interference; and 3) there was a causal link between the two.
  3. The second approach to proving up retaliation under the FHA involves a plaintiff showing: 1) plaintiff is a protected individual under the FHA; 2) plaintiff was engaged in the exercise or enjoyment of fair housing rights; 3) defendant coerced, threatened, intimidated, or interfered with the plaintiff on account of plaintiff’s protected activity under the FHA; and 4) the defendant was motivated by an intent to discriminate.
  4. Defendants only provided arguments under VIII(2) of this blog entry, so the court addressed just those arguments. The 10th Circuit has not decided which formulation is the correct formulation and it isn’t necessary for this court to do so since the defendants opted for the formulation in VIII(2) of this blog entry.
  5. Magic words are not necessary to request an accommodation and plaintiff made his need clear for the service dog in any event.
  6. Defendants denial of the service dog accommodation, insisting that plaintiff either move out or find a new home for his service dog, and eventually terminating his employment and denying plaintiff housing altogether, plausibly states an adverse action interfering with plaintiff’s rights to receive an accommodation and to protest the denial of that accommodation.
  7. Defendants argument that there was no causal link between the protected activity and the adverse action doesn’t fly because an employee of the defendants allegedly told the plaintiff that protesting the denial of the accommodation was one of the reason for the termination and denial of housing.

 

IX

Thoughts/Takeaways

 

  1. We have been discussing in this blog quite a bit of late about whether it is the essential functions of the job that needs accommodating or whether it is the disability that needs accommodating. This case come down on the side of the disability needing accommodating. Also, it sets up a workaround for attorneys in courts insisting that it is the essential functions of the job that needs accommodating. That is, an employer has the obligation to reasonably accommodate a person in order for that individual to access the privileges and benefits of their employment.
  2. The ADA reaches the entire spectrum of employment-based disability discrimination.
  3. The employer likely would have lost their motion to dismiss anyway, but it certainly didn’t help that they allowed pets in employee housing.
  4. I didn’t particularly care for the first element of a prima facie case for an FHA failure to accommodate claim being a person “suffers from a disability.” A disability is and certainly it can be quite burdensome even full of suffering, but that is not at all the same as saying a person “suffers from a disability.” The distinction is important.
  5. In a footnote, the court noted that identical fair housing state law claims were also brought by the plaintiff and that those survived for the same reasons at the federal claims do.
  6. For the plaintiff suing the Society of Human Resource Management, which we discussed here, the lawyers representing that plaintiff will certainly want to look at this case.
  7. The court gives a nod to Loper Bright when it says that the EEOC regulations interpreting the ADA are only persuasive. Even so, the court elects to cite to those regulations and guidances favorably.
  8. The plaintiff actually sued two individuals (the resort and the owner and manager of the resort).
  9. While at the motion to dismiss stage only a plausible claim needs to be stated, plaintiff attorneys still need to be aware of Iqbal/Twombly. That is, facts still need to be stated in a complaint and not just conclusions.
  10. A reasonable accommodation having to be “plausible,” or “necessary,” means that a court may decide as a matter of law that the particular requested reasonable accommodation was not plausible or necessary, which is potentially another hurdle for an ADA plaintiff to get over.
  11. At the motion to dismiss stage, plaintiff’s allegations are taken as true. The courts are pretty good about that. On summary judgment, it’s much more complicated as to how much the courts necessarily value the allegations and/or facts put forward by the nonmoving party.
  12. The fundamental alteration argument had absolutely no chance of succeeding in this case because the employer allowed pets in employee housing, and it probably would not have succeeded in any event even in the absence of a pet policy, as the animal involved was clearly a service animal.
  13. Magic words are not required to request an accommodation, though it certainly helps.
  14. Anyone can train their dog to be a service dog. The key is whether they have been trained to engage in recognition and response.
  15. Exhaustion of remedies isn’t required under the FHA, but it is required under Title I of the ADA. The court doesn’t mention the plaintiff filing with the EEOC or a state equivalent agency with respect to the Title I claim. Even so, one has to assume that the plaintiff did so or the defendant would have to had raise the issue.
  16. The 10th Circuit uses McDonnell Douglas at both the motion to dismiss and summary judgment stages. This case is one of the few where a court says direct evidence exists.
  17. “Certification,” for a service animal is not a thing in the United States.