Lamm v. DeVaughn James ( 2022 )

Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 7, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ALLISON LAMM,
Plaintiff - Appellant,
v. No. 19-3167
(D.C. No. 6:18-CV-01124-JTM)
DEVAUGHN JAMES, LLC, (D. Kan.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, McHUGH, and EID, Circuit Judges.
_________________________________
Plaintiff-appellant Allison Lamm worked for defendant-appellee DeVaughn
James, LLC (“DJ”), a personal injury law firm, from September 2013 until her
termination on June 23, 2016. Lamm, who began suffering from anxiety and other
mental health issues as a teenager, was diagnosed with Generalized Anxiety Disorder
(“GAD”) and panic attacks in May 2016.
Lamm began having attendance issues even before her diagnosis: she missed at
least 133.5 hours of scheduled workdays in the first six months of 2016. In late 2015
or early 2016, she asked to be permitted to work half-days “on the days that [she]
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 2
experience[s] intense anxiety” as an accommodation under the Americans with
Disabilities Act (ADA). App’x Vol. II at 440. The firm denied Lamm’s request and,
after additional absences, terminated her employment.
Lamm sued DJ in the District of Kansas, alleging violations of the ADA. The
court granted DJ’s motion for summary judgment, and Lamm now appeals. We
affirm.
I.
Lamm, along with her fellow litigation case manager Velma Thompson, was
expected to work forty hours per week at DJ, except on the occasion that a client
required work on certain evenings or weekends. DJ’s paid time off (“PTO”) policy
permitted employees 120 hours, annually, of PTO. In the event that an employee
exceeded this allotment, she would “be penalized and sent home for one (1) day
without pay . . . [and if the employee] continue[d] to go negative[,] . . . more severe
consequences [would] occur at the discretion of management up to and including
termination.” Id. at 306.
In 2015, before she was diagnosed with anxiety, Lamm was warned about her
attendance, although she did not exceed the 120-hour allotment set forth by DJ.
From January to June 2016, Lamm missed more hours across thirty scheduled work
days than DJ’s PTO policy permits in an entire year. Although Lamm had exceeded
her allotted PTO, DJ granted her permission to go on a trip to San Francisco during
this time. According to Lamm, in the spring of that year, she began “dealing with
numerous panic attacks” and continued to miss work after returning from San
2
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 3
Francisco. Id. at 239. In mid-May, her counselor, Kristin Kroeker, diagnosed her
with GAD and wrote a letter recommending that Lamm work only half-days when
she experienced “intense anxiety.” Id. at 440. Lamm provided this letter directly to
DJ. This was the only information Lamm provided the firm on what would help her
cope with her alleged disability.
On June 3, 2016, DJ reminded Lamm that she was expected to work forty
hours per week, told her that she was falling behind on her assignments, and offered
her one unpaid week off, which Lamm declined. Lamm was then absent for three
days that month, for reasons unrelated to anxiety. On June 23, DJ terminated
Lamm’s employment.
Lamm filed a complaint in the District of Kansas on April 20, 2018, alleging
that DJ had discriminated and retaliated against her in violation of the ADA. DJ
moved for summary judgment after the court issued the pretrial order. The district
court granted DJ’s motion for summary judgment as to Lamm’s two claims: (1) that
the firm failed to accommodate her disability as required under the ADA and (2) that
it retaliated against her for her request and prior anxiety-related absences. 1
1
In her complaint, Lamm had also argued that her termination violated public
policy and the Kansas Act Against Discrimination (KAAD). But, as the district court
correctly noted, in her response to DJ’s motion for summary judgment, she withdrew
her public policy claim and acknowledged “that her claims under Kansas law are
essentially measured under the same standard applicable to her federal discrimination
claims.” App’x Vol. IV at 907 n.1. Thus, according to the court, “the two claims at
issue are the plaintiff’s failure-to-accommodate and retaliation claims.” Id. On
appeal, Lamm addresses only these same two claims, and additionally argues that the
district court should have addressed her general discrimination claims.
3
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 4
On appeal, Lamm argues that the district court erred in granting summary
judgment on the grounds that (1) she failed to meet her initial burden on her failure to
accommodate claim, (2) she did not satisfy her burden to show DJ’s legitimate,
nondiscriminatory reason was pretext on her retaliation claim, and (3) it did not
address her discrimination claims. We address each argument in turn below.
II.
This court reviews “a district court’s grant of summary judgment de novo,
using the same standard applied by the district court pursuant to Fed. R. Civ. P.
56(a).” Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013).
Summary judgment must be granted if “there is no genuine dispute as to any material
fact” and the moving party is “entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). This court views “facts in the light most favorable to the non-moving
parties, . . . resolving all factual disputes and reasonable inferences in their favor.”
Cillo, 739 F.3d at 461 (internal quotation marks omitted).
III.
a. Failure to accommodate
The ADA’s prohibition on discrimination includes “not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability” unless the employer can prove that making
such an accommodation would be unduly burdensome on the operation of its
business. Punt v. Kelly Servs., 862 F.3d 1040, 1048 (10th Cir. 2017) (quoting 42
U.S.C. § 12112(b)(5)(A)).
4
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 5
On a failure to accommodate claim, a plaintiff is not required to prove the
employer’s motivation or intent to discriminate “[b]ecause ‘any failure to provide
reasonable accommodations for a disability is necessarily because of disability.’”
Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1204 (10th Cir. 2018) (quoting Punt, 862
F.3d at 1048). Rather, this type of claim is evaluated under a burden-shifting
framework: a plaintiff must make an initial showing that “(1) she is disabled; (2) she
is ‘otherwise qualified’; and (3) she requested a plausibly reasonable
accommodation.” Sanchez v. Vilsack, 695 F.3d 1174, 1177 (10th Cir. 2012). We
collapse our analysis of the second and third prongs. 2
As an initial matter, we agree with the district court’s view that it is “not
necessary to resolve the issue” whether Lamm should be considered disabled given
that it is possible to resolve this case on other grounds, namely the remaining prongs
needed to establish both failure to accommodate and disparate treatment claims.
App’x Vol. IV at 907 n.1.
2
We note that the third prong of this analysis (whether Lamm requested a
reasonable accommodation) is subsumed by the second (whether Lamm is a qualified
individual) in this order. In cases where the plaintiff has requested an indefinite
accommodation, our case law recognizes that the two analyses are essentially
identical. See, e.g., Punt, 862 F.3d at 1051 (determining that the plaintiff did not
make a reasonable request, but relying on qualified-individual case law). Qualified-
individual analysis requires asking whether any reasonable accommodation would
enable Lamm to perform the essential functions of her job. This question naturally
lends itself to the broader inquiry of what a reasonable accommodation is (and is
not). Therefore, we incorporate analysis of whether the accommodation Lamm
requested is reasonable into our assessment of the qualified-individual prong.
5
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 6
A qualified individual for purposes of the ADA is someone “who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
This court applies a two-part analysis to determine whether an employee is a
qualified individual: first, we determine whether she can perform the “essential
functions of the job,” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir.
2003), and, if not, whether any “reasonable accommodation by the employer would
enable [her] to perform those functions,” Valdez v. McGill, 462 F. App’x 814, 817
(10th Cir. 2012) (unpublished). 3
An essential function of a job “is defined as ‘the fundamental job duties of the
employment position the individual with a disability holds or desires.’” Bartee v.
Michelin N. Am., Inc., 374 F.3d 906, 915 (10th Cir. 2004) (quoting 29 C.F.R.
§ 1630.2(n)(1)). We look to (1) the employer’s judgment; (2) written job
descriptions; (3) what results if the employee does not perform the function; and (4)
current work experience of other employees in comparable positions. See EEOC v.
Picture People, Inc., 684 F.3d 981, 986 (10th Cir. 2012). Lamm cites Mason v.
Avaya Communications, Inc. to support her claim that “DJ was required to provide
undisputed evidence that a job requirement is an essential job function.” Aplt. Br. at
3
Although not precedential, we find the discussion in Valdez and all other
unpublished opinions we rely on herein to be instructive. See 10th Cir. R. 32.1
(“Unpublished decisions are not precedential, but may be cited for their persuasive
value.”); see also Fed. R. App. P. 32.1.
6
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 7
18 (citing 357 F.3d 1114, 1120 (10th Cir. 2004)). But that case contains no such
holding.
On the contrary, the essential function inquiry is “not intended to second guess
the employer.” Tate v. Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir. 2001).
Rather, the ADA requires us to consider “the employer’s judgment as to what
functions of a job are essential.” 42 U.S.C. § 12111(8). Generally, this court does
not “second guess the employer’s judgment when its description is job-related,
uniformly enforced, and consistent with business necessity.” Mason, 357 F.3d at
1119 (citing Davidson, 337 F.3d at 1191).
According to DJ, Lamm’s essential functions were as follows:
(1) regular and predictable attendance for 40 hours per week during
normal business hours in the office; (2) placing and receiving calls
to/from witnesses, opposing counsel, and the courts; . . . (3) personally
interacting with DeVaughn James attorneys, paralegals, and legal
assistants; and (4) meeting with clients in the office to prepare discovery
responses.
Aple. Br. at 29. DJ’s description satisfies the standard set forth by Mason, and we
find that Lamm was unable to fulfill her position’s essential functions. Viewing the
record in the light most favorable to Lamm, it is uncontroverted that she missed at
least 133.5 hours of work in the first half of 2016 alone, which is substantially more
than the 120 total hours of PTO per year permitted by the firm. She does not dispute
that twice in one week she informed DJ of her absence on the same day that it
occurred, contrary to DJ’s policy of requiring five days’ notice and approval for
absences. Lamm also does not dispute that her anxiety sometimes kept her “away
7
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 8
from work” and that she was unable to tell DJ “how often or how long” she would
need to take off from work because of it. App’x Vol. II at 264. Lamm was absent
from her duties excessively and often without warning; thus, she could not fulfill the
essential functions of “regular and predictable attendance” and completing
administrative and client-facing tasks.
Lamm contends that her physical presence in the office was not an essential
function of her work. But Lamm’s focus on physical presence in the office is a red
herring because she did not ask to work remotely, but to simply not work for half the
day when she was feeling overwhelmed by her anxiety on a unilateral as-needed
basis and with no advance notice to her employer.
At summary judgment, Lamm claimed that she had initially made two requests
in addition to taking half-days off when she experienced anxiety attacks: to work
from home and to receive additional time off from work while her medications took
effect. But, as the district court correctly noted, Lamm’s account of these requests is
belied by the absence of any such recommendation in her counselor’s letter
supporting her accommodation request (the only such document Lamm offered on
this point). Kroeker wrote that her “profession[al] recommendation [is] to be able to
work half days on the days with intense anxiety.” Id. at 440. Lamm’s suggestion
that she made additional requests—a suggestion that appears several times
throughout the present appeal—amounts to an entirely unfounded interpretation of
the letter, which contains no mention of them. We need not consider this novel and
unsupported argument.
8
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 9
Next, we ask whether any reasonable accommodation would enable Lamm to
perform the essential functions of her job. We find that no reasonable
accommodation would accomplish this. This circuit has held that the term
“reasonable accommodation” refers to “those accommodations which presently, or in
the near future, enable the employee to perform the essential functions of [her] job.”
Lincoln, 900 F.3d at 1205. According to this court’s case law, “[w]hether an
accommodation is reasonable under the ADA is a mixed question of law and fact . . .
[but] an employee’s request to be relieved from an essential function of her position
is not, as a matter of law, a reasonable or even plausible accommodation.” Mason,
357 F.3d at 1122. The determination of whether a requested accommodation is
reasonable must be “made on the facts of each case taking into consideration the
particular individual’s disability and employment position.” Punt, 862 F.3d at 1050.
The accommodation Lamm requested of DJ was unreasonable as a matter of
law under Mason. The district court properly identified Lamm’s accommodation
request as the indefinite flexibility to work half-days when she was experiencing
anxiety. The accommodation Lamm proposed—not working for half-days—would
do nothing to enable her to fulfill the essential functions of her job. Therefore, we
conclude that the accommodation Lamm requested is unreasonable. Because Lamm
cannot perform the essential functions of her job, and no reasonable accommodation
would enable her to do so, she is not a qualified individual.
Lamm argues that the burden to “identify all potential reasonable
accommodations” did not rest squarely on her, but that during the “interactive
9
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 10
process”, as specified in the Code of Federal Regulations, DJ is required to look for
options. Aplt. Br. at 24. This would be true if she was an “otherwise qualified”
employee. Because Lamm is not “otherwise qualified,” as we explain in greater
detail below, the interactive process is not mandatory in her case.
According to the Code of Federal Regulations’ section on implementing the
ADA, “[t]o determine the appropriate reasonable accommodation it may be necessary
for the covered entity to initiate an informal, interactive process with the individual
with a disability in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3). This
circuit has used even stronger language, holding that there is an “obligation . . . [to]
engag[e] . . . in good faith in an interactive process” with a qualified individual.
Aubrey v. Koppes, 975 F.3d 995, 1009 (10th Cir. 2020) (emphasis added). This
process is meant to start a dialogue between an employer and employee about the
extent of the latter’s limitations and the former’s possibilities for accommodation.
See Valdez, 462 F. App’x at 819.
Lamm seems to suggest that the lack of an interactive process itself gives rise
to liability under the ADA. But the interactive process is “only a means to an end.”
Id. Failure to engage in it is not a basis for liability; rather, it makes up a part of a
failure to accommodate claim. See Lowe v. Indep. Sch. Dist. No. 1 of Logan Cty.,
363 F. App’x 548, 552 (10th Cir. 2010) (unpublished). Moreover, an employer need
not engage in a “futile interactive process where . . . no reasonable accommodation
was possible” (that is, when the employee is not a qualified individual). Valdez, 462
F. App’x at 819. Because, as shown above, Lamm is not a qualified individual, DJ
10
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 11
was not required to engage in the interactive process with her. Therefore, we need
not assess whether DJ conducted such a process in good faith.
b. Retaliation
The ADA prohibits “discriminat[ing] against any individual because such
individual has opposed any act or practice made unlawful by this chapter” and
“interfer[ing] with any individual in the exercise or enjoyment of . . . any right
granted or protected by this chapter.” 42 U.S.C. § 12203(a)–(b). Unlike the
prosecution of an ADA discrimination claim, which requires a plaintiff to show that
she is a “qualified individual with a disability,” Davidson, 337 F.3d at 1188 (internal
quotation marks omitted), to prosecute an ADA retaliation claim, a plaintiff only
needs to show that she had a reasonable and good-faith belief that she was disabled,
Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1186 (10th Cir. 2016); see also 42
U.S.C. § 12203(a) (stating that the ADA retaliation provision protects “‘any
individual’ who has opposed any act or practice made unlawful by the ADA”)
(emphasis added).
Unless the plaintiff offers direct evidence of retaliation, which “requires proof
of . . . oral or written statements on the part of a defendant showing a discriminatory
motivation,” Cuenca v. Univ. of Kan., 101 F. App’x 782, 788 (10th Cir. 2004)
(unpublished), we analyze retaliation claims under the burden-shifting framework set
forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–04 (1973).
11
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 12
First, to establish a prima facie case of retaliation, the plaintiff must show that
“(1) she engaged in a protected activity; (2) she was subjected to adverse
employment action subsequent to or contemporaneous with the protected activity;
and (3) a causal connection between the protected activity and the adverse
employment action.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th
Cir. 1999). Then, assuming the plaintiff satisfies this burden, the burden shifts to the
employer to demonstrate that it had a “legitimate, nondiscriminatory reason for the
adverse action.” Picture People, 684 F.3d at 988. If the employer can make such a
showing, the burden of production “shifts back to the plaintiff to prove pretext, which
requires a showing that the proffered nondiscriminatory reason is unworthy of
belief.” Id.
Lamm contends that the McDonnell Douglas framework is inapplicable in this
case because she has provided direct evidence of retaliation, namely DJ’s statement
that in deciding whether to terminate Lamm, it used her entire attendance history,
including “anxiety absences,” which DJ later modified to merely “absences.” App’x
Vol. II at 457. She also advances DJ’s statements that Lamm “was allowed to take
days off without prior notice and approval with no repercussions,” that she “would
not have been terminated” if she hadn’t missed work on certain dates in June 2016,
and that she was “terminated . . . for the totality of her absences, including her
absences related to her mental impairment” as examples of direct evidence. Aplt. Br.
at 17 (emphasis omitted).
12
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 13
This circuit has a “very high bar” for what comprises direct evidence of
retaliation. Picture People, 684 F.3d at 991. To constitute direct evidence, a
statement must not require any inference or presumption. See Twigg v. Hawker
Beechcraft Corp., 659 F.3d 987, 1000 n.8 (10th Cir. 2011). Rather, the statement
“must itself show that the decisionmaker acted because of the prohibited animus.”
Id. at 1003 (quoting Van Antwerp v. City of Peoria, 627 F.3d 295, 298 (7th Cir.
2010)). Lamm’s evidence plainly falls short.
First, Lamm contradicts her own argument about the directness of the evidence
she offers by suggesting that a finder of fact, assessing DJ’s statements, “could draw
the inference that an illegitimate criterion—Lamm’s disability—motivated her
firing.” Aplt. Br. at 17 (emphasis omitted). Evidence requiring an inferential
deduction does not amount to direct evidence. Lamm’s conclusion seems to concede
that she has offered only indirect evidence.
Second, none of these statements clearly reflects illegal animus. It is entirely
plausible that DJ’s reasoning had nothing to do with anxiety at all, but rather the
absences that came with it. See Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 854 (10th
Cir. 2007) (citing Patten v. Wal-Mart Stores E., Inc., 300 F.3d 21, 25 (1st Cir. 2002)
(holding that “[a] statement that can plausibly be interpreted two different ways—one
discriminatory and the other benign—does not directly reflect illegal animus, and,
thus, does not constitute direct evidence”)).
Furthermore, Lamm imprecisely construes DJ’s comments about her
termination. DJ notes on the employer notice portion of Lamm’s unemployment
13
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 14
insurance claim that one of the reasons for which the firm discharged her was
“unexcused absences.” App’x Vol. II at 457. In response to the form’s question
about whether any warnings were given, DJ wrote “warning for anxiety absences.”
Id. This makes the inference Lamm seeks to draw even more tenuous.
In further support of a plausibly benign read of DJ’s comments, the firm
terminated her employment after a series of absences for which it is, according to
Lamm, uncontroverted that anxiety was not the cause.
Finally, a survey of the rare published cases in which this court has held that a
plaintiff offered evidence constituting direct evidence supports the view that the
evidence Lamm offers does not qualify as “direct.” See, e.g., Medlock v. Ortho
Biotech, Inc., 164 F.3d 545, 550 (10th Cir. 1999) (holding that the plaintiff’s offer of
two letters from his employer informing him that it was taking adverse actions
against him “[a]s a result of issues raised in [his] deposition” and because he
“communicated [his] deep dissatisfaction with [his] compensation” constituted direct
evidence); Thomas v. Denny’s, Inc., 111 F.3d 1506, 1512 (10th Cir. 1997) (holding
that the plaintiff presented direct evidence of retaliatory motive by offering witness
testimony that “several people involved in the promotion decision process had stated
that [he] would not be considered for promotion because of his discrimination
complaint”); Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1471 n.5 (10th Cir. 1992)
(holding that testimony that a supervisor held the plaintiff’s EEOC filing against her
amounts to direct evidence of retaliation).
14
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 15
Now that we have determined that Lamm has presented no direct evidence of
retaliation under the ADA, we go on to assess Lamm’s retaliation claim under the
McDonnell Douglas framework. We find that DJ has met its “exceedingly light”
burden to articulate a legitimate and nondiscriminatory reason for terminating Lamm.
Carter v. Pathfinder Energy Servs., 662 F.3d 1134, 1149 (10th Cir. 2011).
The district court correctly found that DJ’s burden, which is “one of
production, not persuasion[,] . . . [and thus] can involve no credibility assessment,”
has been satisfied. DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir.
2017). Additionally, we agree with the district court that Lamm has failed to show
that DJ’s reasoning is “so incoherent, weak, inconsistent, or contradictory that a
rational factfinder could conclude the reasons were unworthy of belief.” Stover v.
Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004).
DJ explains that, following a series of excessive and often unscheduled
absences, it reached a “breaking point” when Lamm continued to miss work in
violation of the firm’s PTO policy even after receiving a warning about how her
absences would affect her job and a suggestion to take planned time off. App’x Vol.
I at 141. We find this explanation satisfactory under McDonnell Douglas. DJ’s
personnel policy states that “[e]ach full time employee is to work 40 hours on a
schedule set by . . . [DJ, and gets] 120 hours per calendar year of paid time off.”
App’x Vol. II at 306. Additionally, DJ said that it found it “much easier to handle a
scheduled absence than an unscheduled absence.” App’x Vol. I at 161. Indeed, this
is supported by DJ’s policies that “[s]cheduled PTO must be approved . . . five (5)
15
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 16
business days in advance” and that “[i]n order to call in sick, an employee must call
and speak (texting alone is not acceptable)” with the office manager. App’x Vol. II
at 306 (emphasis in original).
Lamm disputes neither that her absences during the first half of 2016 exceeded
her annual allotment of PTO nor that their length and frequency were often
unpredictable. After her June 3, 2016, meeting with DJ, during which she was told
she needed to avoid further absences and was offered one week off of work, Lamm
missed three more days of work despite the fact that no more PTO was available to
her. That DJ considered these absences the “breaking point” squares with its written
personnel policies. Thus, the firm’s explanation for its decision to terminate Lamm’s
employment is satisfactory under McDonnell Douglas.
Having found that DJ satisfied its burden, we go on to determine whether
Lamm has proven DJ’s reasoning to be rendered unworthy of belief by a rational
factfinder. First, Lamm argues that DJ’s explanation for terminating her employment
is pretextual because she “capably performed her job for several years.” App’x Vol.
III at 619. Indeed, Lamm received consistently positive evaluations during a
significant portion of her time at DJ. But by the spring of 2016, Lamm’s
performance seems to have deteriorated, both because of her absences and quality of
work. For example, Kroeker, in her letter, made recommendations to accommodate
Lamm in order to “try to minimize the anxiety attacks impacting . . . [her] work.”
App’x Vol. II at 440.
16
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 17
Next, Lamm claims that DJ’s reasons for terminating her are inconsistent. As
evidence, Lamm offers DJ’s responses to Lamm’s June 2016 Separation Statement to
the Kansas Department of Labor (KDOL). DJ initially responded that it had
considered anxiety-related absences in its decision to terminate Lamm. In a second
response to KDOL, however, DJ removed the reference to anxiety, noting only that it
had warned Lamm about her absences in general. It is not clear how this second
response—which is “more accurate than the first” because several of Lamm’s
unscheduled absences were unrelated to anxiety—undermines DJ’s reasoning for
terminating Lamm. App’x Vol. IV at 939. One response offers a broader depiction
of DJ’s decision-making process than the other, but neither contradicts DJ’s initial
reasoning such that it could be deemed unworthy of belief.
Lamm also points to the fact that Thompson, another litigation case manager,
was permitted to work remotely as evidence of DJ’s inconsistent reasoning. But,
because Lamm offers no evidence that Thompson violated DJ’s PTO policy, this is
not a relevant comparison. That Thompson worked from home during a period of
office overcrowding in no way undermines DJ’s explanation that Lamm was
terminated because of her excessive, unscheduled absences.
Finally, Lamm contends that DJ co-owner Richard James’ “long and rambling
responses” to questions in his deposition show pretext. The district court found that
Lamm’s “conclusory assertion gives no illustration of any answer, rambling or
otherwise, which would render . . . [DJ’s] position unworthy of belief.” Id. We
17
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 18
agree. The mere form of James’ answers in general, without more, does not amount
to pretext.
In sum, we find that Lamm has not established a genuine dispute of fact about
whether DJ’s reasons for terminating her were pretext. Thus, summary judgment on
her retaliation claim is appropriate.
c. Discrimination
To establish a prima facie disparate treatment claim under the ADA, Lamm
must prove that at the time she was terminated, (1) she was disabled; (2) she was
qualified to perform the essential functions of her job, either with or without
reasonable accommodations; and (3) she was fired because of her disability. See
Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 883 (10th Cir. 2015).
On appeal, Lamm argues that the district court erred by entering summary
judgment without “expressly dismiss[ing] [her] disability discrimination disparate
treatment claims.” Aplt. Br. at 33. But a close look at the record indicates that there
is not much of a claim to be dismissed. In both Counts II and III of her complaint,
Lamm alleges that DJ subjected her to “disparate treatment.” App’x Vol. I at 17, 19.
She does not, however, offer any evidence befitting of the framework set forth above.
Rather, to the extent she describes “disparate treatment,” the actions about which she
complains seem to fall under the category of either failure to accommodate, which
she couches as a general discrimination claim, or retaliation. Aside from the brief
mention of disparate treatment, which occurs in the context of her general
discrimination and retaliation claims, there is no indication that Lamm meant it to be
18
Appellate Case: 19-3167 Document: 010110641990 Date Filed: 02/07/2022 Page: 19
an independent claim—nor did she provide any evidence to support one. Therefore,
we hold that the district court did not err in disposing of DJ’s motion for summary
judgment without specifically addressing the issue of treatment.
Further, Lamm’s disparate treatment claim—to the rather vague extent one
existed—would fail for the same reason her failure to accommodate claim does:
because Lamm is not a qualified individual.
IV.
For the reasons stated above, we accordingly AFFIRM the district court’s
grant of DJ’s motion for summary judgment.
Entered for the Court
Allison H. Eid
Circuit Judge
19