Wehrley v. American Family Mutual Insurance , 513 F. App'x 733 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 18, 2013
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SCOTT WEHRLEY,
Plaintiff - Appellant,
v. No. 12-1079
(D.C. No. 1:10-CV-01567-PAB-BNB)
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant - Appellee.
_________________________________
ORDER
_________________________________
Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
_________________________________
This matter is before the court as a follow up to our order dated January 24, 2013
withdrawing the court’s previous Order & Judgment, and in addition on the appellant’s
Petition For Panel Rehearing and Rehearing En Banc. We also reviewed the appellee’s
response to the request for rehearing, which was filed on January 30.
Upon consideration, we grant panel rehearing in part, and direct the clerk of court
to issue the Order & Judgment attached to this order as the new decision of the court.
Beyond the amendments included in our new decision, the request for panel rehearing is
denied.
The new Order & Judgment, as well as the petition for en banc rehearing and the
response, were circulated to all the judges of the court who are in regular active service.
As no judge called for a poll, the petition for en banc consideration is denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
2
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 18, 2013
___________________________________
Elisabeth A. Shumaker
Clerk of Court
SCOTT WEHRLEY,
Plaintiff-Appellant,
v. No. 12-1079
AMERICAN FAMILY MUTUAL (D.C. No. 1:10-CV-01567-PAB-BNB)
INSURANCE COMPANY, (D. Colo.)
Defendant-Appellee.
___________________________________
ORDER AND JUDGMENT*
____________________________________
Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
____________________________________
Plaintiff Scott Wehrley worked as a field claim adjuster for Defendant
American Family Mutual Insurance Company. While investigating a roof claim in 2007,
he fell from a ladder and injured his knee and back. He quickly returned to work, where
Defendant allowed him to stay off ladders. Although a doctor removed all work
restrictions six months after the fall, Plaintiff challenged this determination and obtained
medical restrictions from roof-related claims. Defendant accommodated these
restrictions for a time, but finally told Plaintiff his job would be in jeopardy if he could
not return to roof claims. Defendant then terminated Plaintiff’s employment, more than a
*
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.
year after the initial accident. Plaintiff filed this suit, raising several federal and state-law
claims. The district court granted Defendant summary judgment. Plaintiff appealed.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I.
Plaintiff began working for Defendant in 1999, and took a position as a property
claim field senior adjuster in 2006. His duties in that position included, among other
things, on-site property inspections. The position’s job description said the job required
“the ability to work in high, precarious places between 1 and 33% of the time,” “the
ability to climb or balance between 1 and 33% of the time,” and “the ability to stoop,
kneel, crouch or crawl between 1 and 33% of the time.” Appellant’s App., vol. I at 97–
98. It went on: “The information in this job description is intended to describe the
essential job functions required of those assigned to this job.” Id. at 98. In the unit in
which Plaintiff worked, about fifty-seven percent of claims were roof-related claims. Id.,
vol. IV at 418.
In June 2007, Plaintiff fell from a ladder while inspecting a roof and injured his
knee and lower back. He filed a workers’ compensation claim, and his supervisor, Jeff
Bourcy, assigned him to desk work until he could walk. Upon his return to work,
Plaintiff informed Bourcy that he had “extensive experience and skills sets in all areas of
processing insurance claims” and could do any type of work Defendant needed him to.
Id., vol. I. at 143. After Plaintiff was off crutches, Bourcy began assigning him to field
claims that did not involve roofs or ladders. In December 2007, Defendant’s workers’
compensation doctor determined that Plaintiff had reached maximum medical
2
improvement and removed all Plaintiff’s work restrictions. Plaintiff nevertheless
requested an independent medical examination. The doctor who conducted this
examination in April 2008 concluded Plaintiff should avoid kneeling or crawling when
possible, but that some kneeling and crawling would be acceptable. Bourcy then
reassigned Plaintiff to roof claims, but Plaintiff quickly obtained ladder and roof
restrictions from the worker’s compensation doctor. In July 2008, that doctor determined
Plaintiff needed knee surgery and placed Plaintiff on permanent work restrictions.
On July 21, 2008, Plaintiff discussed with Bourcy his need for surgery and
informed him he had surgery scheduled for July 30. Bourcy assured Plaintiff he was
doing his job well, and Plaintiff reiterated that he was willing and able to do any type of
insurance work that Defendant needed him to do. Bourcy followed up that conversation
with an email referring Plaintiff to Defendant’s Family and Medical Leave Act (FMLA)
coordinator “to discuss FMLA possibilities as soon as you can.” Id., vol. II at 313.
When Defendant’s workers’ compensation insurer, Sentry, declined to cover the surgery,
Plaintiff postponed the surgery and challenged Sentry’s denial of coverage. Bourcy
advised Plaintiff to have his personal insurer cover the surgery. Bourcy asked on August
6, 2008, whether Plaintiff had filed for FMLA leave. Plaintiff said he planned to apply
for FMLA once the surgery was scheduled, but that he was waiting to hear back from his
insurance company. Bourcy told Plaintiff this course of action was reasonable.
On August 22, 2008, Bourcy told Plaintiff that if he did not perform roof claims,
his job could be in jeopardy. Bourcy said climbing roofs was an important part of the job
and Plaintiff’s failure to perform roof claims increased the work for other adjusters. On
3
August 28, 2008, Bourcy again asked Plaintiff if he had received a response from his
personal insurance company or if he had applied for FMLA leave. Plaintiff responded no
to both questions. Bourcy then terminated Plaintiff’s employment, citing his inability to
perform roof inspections. Plaintiff asked if there were “any other job positions posted
that I could have,” and Bourcy replied that he had not seen any that day. Id., vol. I at
144. An Employee Relations Specialist with Defendant, Kristy Ledgerwood, indicated
that she checked Defendant’s open positions at the time. She did not find any open
positions in the Denver care center. Ledgerwood did not remember whether she checked
for open desk positions in other areas, such as casualty or automobile claims. Plaintiff
introduced a list of Defendant’s job postings from the time surrounding his firing. That
list includes positions for which Plaintiff asserts he was qualified, such as a “Casualty
Claim Desk Adjuster” in Denver posted on August 12, 2008. Id., vol. II at 171.
Plaintiff’s termination letter said, “You are not eligible for rehire consideration at
American Family Insurance.”1 Id., vol. II at 309. Sometime after Plaintiff’s firing,
Sentry agreed to cover his surgery.
Plaintiff filed this suit in state court, and Defendant removed it to federal court.
1
Defendant claims it was willing to rehire Plaintiff, relying on a printout of its
electronic separation form. That form has a box checked next to “No” after the question
“Would you rehire?” Appellant’s App., vol. III at 335. But in the “Comments” window
below, Bourcy wrote, “I would reccomend [sic] re-hire if it were for inside position, not
requiring ladder/roof work.” Id. at 336. Because Plaintiff has introduced his termination
letter, which directly rebuts Defendant’s evidence, Plaintiff has created a factual dispute.
On appeal from summary judgment, we must resolve all factual disputes in the light most
favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007).
Consequently, we must assume Defendant was unwilling to rehire Plaintiff to any other
position.
4
The Second Amended Complaint asserted (1) discrimination in violation of the
Americans with Disabilities Act (ADA), (2) violation of Colorado public policy, (3)
retaliation under the FMLA, and (4) retaliation under the ADA. On Defendant’s motion,
the district court granted summary judgment in Defendant’s favor on all four claims.
Plaintiff now appeals. We initially entered an order and judgment affirming the district
court. As to Plaintiff’s ADA discrimination claim, the district court held that Plaintiff
was not substantially impaired in any major life activity. We affirmed on the alternative
basis that Plaintiff had failed to introduce sufficient facts showing he was able to perform
the essential functions of his job. We stopped short of discussing whether Plaintiff was
eligible for reassignment to another position in Defendant’s employ.
Plaintiff then sought panel rehearing and rehearing en banc, pointing to our
decision in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc), a
decision he did not cite in his opening brief and only discussed perfunctorily in his reply
brief. Midland Brake indicates that our initial decision was at least incomplete, and
perhaps wrong. Under Midland Brake, we must consider not only whether an employee
is qualified to perform the essential functions of his current job, but also whether he is
qualified to perform the essential functions of “an available reassignment job within the
company.” Midland Brake, 180 F.3d at 1161. In light of Midland Brake, we grant the
petition for panel rehearing, and issue this amended opinion. Rather than decide whether
Plaintiff was entitled to reassignment, we will take the same tack as the district court and
ask whether Plaintiff was disabled under the ADA. We review the district court’s grant
of summary judgment on all Plaintiff’s claims de novo, and view the evidence in the light
5
most favorable to the non-moving party. Robert v. Bd. of Cnty. Comm’rs, 691 F.3d
1211, 1216 (10th Cir. 2012).
II.
We turn first to Plaintiff’s ADA discrimination claim. The ADA prohibits
covered employers from discriminating against “a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). ADA discrimination claims follow the familiar
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case of discrimination, Plaintiff must show (1) he was disabled,
(2) he was qualified, with or without reasonable accommodation, to perform the essential
functions of his job, and (3) his employer discriminated against him because of his
disability. Robert, 691 F.3d at 1216.
Under the ADA, a person is disabled if he (1) has a physical or mental impairment
that substantially limits one or more of his major life activities, (2) has a record of such
an impairment, or (3) is regarded by his employer as having such an impairment. 42
U.S.C. § 12102(1). Plaintiff claims his knee and back injuries were a qualifying physical
impairment. We follow a three-step process to determine whether an impairment exists.
Plaintiff must (1) show he has a recognized impairment, (2) identify one or more
appropriate major life activities, and (3) show that the impairment substantially limits one
or more of those activities. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1129
(10th Cir. 2003). The parties appear to agree that Plaintiff’s knee injury, at least, is a
recognized impairment. But they dispute whether Plaintiff was substantially impaired in
any major life activity.
6
Before we can answer this question, we must clarify what statutory scheme
applies. In 2008, Congress passed the ADA Amendments Act, Pub. L. No. 110-325, 122
Stat. 3553, which had a stated purpose of superseding a number of Supreme Court cases.
The Amendments Act also created a statutory definition of “major life activities.” See 42
U.S.C. § 12102(2)(A). But the Act did not take effect until January 1, 2009, which is
after the alleged discrimination in this case. We have held that the Amendments Act does
not apply retroactively, so we must apply the law as it stood in 2008, when Defendant
fired Plaintiff. Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1144 (10th Cir.
2011).
The pre-2009 version of the ADA did not define “major life activity,” but the
Department of Labor regulations defined the term as including “functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 29 C.F.R. § 1630.2(i) (2008 version). Prior to the ADA
Amendments Act, the Supreme Court said the phrase “major life activity” needed to be
“interpreted strictly to create a demanding standard for qualifying as disabled.” Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002), superseded by statute ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. Accordingly, the Court
said “major life activities” referred to “those activities that are of central importance to
daily life.” Id. Under this standard, Plaintiff has failed to raise a dispute of material fact
regarding his disability.
Plaintiff argues he was impaired in the following activities: squatting, lifting more
than twenty-five pounds on a regular basis, kneeling, crawling, climbing ladders, working
7
at unprotected heights, prolonged walking, sleeping, sitting or standing for more than
thirty minutes at a time; household tasks such as gardening, painting, changing light
bulbs; and cleaning high and low areas like gutter drains, the garage, the basement, the
bathtub, and under low pieces of furniture. He is also unable to engage in recreational
activities such as skiing, waterskiing, golfing, camping, hiking, and fishing. Most of
these activities are not of central importance to daily life, but at least some of them are.
For example, walking is one of the activities listed in the regulations. We would also
venture that sleeping, sitting, and standing are central to daily life.2 We have also said
“personal and household chores” are major life activities, Carter, 662 F.3d at 1143, but
we did so in the context of chores such as cooking food and doing laundry, id. at 1139.
Unlike cooking and washing clothes, cleaning one’s gutters or bathtub is not central to
daily life. But Plaintiff has identified four activities that we agree are major life
activities: walking, sleeping, sitting, and standing.
The next question is whether Plaintiff was substantially impaired in any of these
activities when he was fired. The 2008 Department of Labor regulations defined
“substantially limit[ed]” as being
(i) Unable to perform a major life activity that the average person in
the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity as
compared to the condition, manner, or duration under which the average
person in the general population can perform that same major life activity.
2
In the ADA Amendments Act, Congress added sleeping and standing to its list of
major life activities. See 42 U.S.C. §12102(2)(A).
8
29 C.F.R. § 1630.2(j)(1) (2008). Plaintiff submitted an independent medical
examination by Dr. Linda Mitchell conducted in February 2010. Dr. Mitchell noted that
“prolonged walking or standing” made Plaintiff’s knee pain “worse.” Appellant’s App.,
vol. II at 192. She noted, “He is worse with prolonged sitting or standing and has to
change positions about every 30 minutes.” Id. Plaintiff also submitted a report by a
rehabilitation counselor, Helen Woodard, completed in January 2011. Under the heading
“current status,” the report notes that Plaintiff “has difficulty walking very far and pain
disrupts his sleep.” Id. at 275. The report opines that his injuries caused “disabilities that
result in substantial limitations that affect [Plaintiff’s] ability to do one or more major life
activities.” Id. at 277. Specifically, the report noted “limitations” in lifting, squatting,
kneeling, crawling, climbing, working on ladders or at unprotected heights and that his
disabilities “affect his ability” to do household activities such as cleaning. Id. Plaintiff’s
own affidavit says the limitations detailed in these two documents “were in effect and as
severe in July and August of 2008 as they were at the time the reports were prepared.”
Id. at 168.
This evidence does not show Plaintiff was “unable” to perform any major life
activities, so we must consider whether he was “significantly restricted” in the manner or
duration of performing those activities. See 29 C.F.R. § 1630.2(j)(1) (2008). As to
walking and standing, the medical report said only that prolonged walking or standing
caused Plaintiff knee pain. It does not say the injury restricted Plaintiff’s ability to walk
or stand in the ordinary course of a day. As to sleeping, the report only indicates that
pain “disrupts” or “impacts” Plaintiff’s sleep. Id. at 275, 277. It says nothing about the
9
extent or severity of the impact on his sleep. See Johnson v. Weld Cnty., Colo., 594 F.3d
1202, 1218 n.10 (10th Cir. 2010) (plaintiff had not shown sleeping trouble made her
disabled under the ADA where she did not show how her sleeping problems compared to
the average person in the general population “many of whom, of course, have . . . trouble
sleeping”). Finally, the fact that Plaintiff has to change positions every thirty minutes
while sitting is not a substantial limitation, considering how few daily activities require
prolonged sitting in one position. In short, Plaintiff has not introduced enough evidence
to overcome summary judgment on the issue of whether he was substantially impaired in
a major life activity. So he has not satisfied the first element of a prima facie case of
ADA discrimination.
III.
We next address Plaintiff’s ADA retaliation claim. The ADA prohibits both
“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). In the absence of direct evidence of retaliation, a plaintiff may make out
an ADA retaliation claim under the McDonnell Douglas burden-shifting framework. A
prima facie case requires Plaintiff to show (1) he engaged in protected activity, (2) a
reasonable employee would have found the challenged action materially adverse, and (3)
a causal connection existed between the protected activity and the material adverse
action. Reinhardt v. Albuquerque Public Schs. Bd. of Educ., 595 F.3d 1126, 1131 (10th
Cir. 2010). We have held that requests for reasonable accommodation are protected
10
activity under the ADA.3 Jones v. U.P.S., Inc., 502 F.3d 1176, 1194 (10th Cir. 2007).
And, unlike an ADA discrimination suit, a plaintiff in an ADA retaliation suit need not
show he suffered from an actual disability as long as he had a “reasonable, good faith
belief the statute ha[d] been violated.” Selenke v. Medical Imaging of Colo., 248 F.3d
1249, 1264 (10th Cir. 2001). Here, the district court concluded Plaintiff had satisfied the
second two requirements of a prima facie case. But it concluded he had failed to meet the
first prong because “no reasonable jury could find that, in June 2007, [Plaintiff] had a
reasonable, good faith belief that simply because he could not descend a ladder he was
disabled within the meaning of the ADA.” Wehrley v. Am. Family Mut. Ins. Co., 2012
WL 415421, at *9 (D. Colo., Feb. 9, 2012). In the alternative, the court held Plaintiff
failed to show pretext for his termination.
We can accept the court’s second holding, but not its first. Dr. Mitchell’s report
noted that “prolonged walking or standing” made Plaintiff’s knee pain “worse.”
Appellant’s App., vol. II at 192. Woodard’s report said Plaintiff “has difficulty walking
very far and pain disrupts his sleep,” and noted “limitations” in lifting, squatting,
kneeling, crawling, climbing, working on ladders or at unprotected heights and that
Plaintiff’s disabilities “affect his ability” to do household activities such as cleaning. Id.
at 275, 277. Plaintiff says he experienced these conditions at the time Defendant fired
him. This evidence is at least sufficient to create a factual issue regarding Plaintiff’s
3
To request reassignment, an employee need not use “magic words,” but must
“convey to the employer a desire to remain with the company despite his or her disability
and limitations.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1194 n.13 (10th Cir. 2007)
(quoting Midland Brake, 180 F.3d at 1172).
11
good faith belief that he was disabled.
The district court focused on the wrong time-frame in considering whether
Plaintiff believed he was disabled, looking at Plaintiff’s beliefs in June 2007 rather than
when he was terminated in August 2008. By the time Defendant fired him, Plaintiff had
been placed on work restrictions and was experiencing all the limitations outlined in Dr.
Mitchell and Ms. Woodard’s reports. Furthermore, the district court considered only
Plaintiff’s inability to descend a ladder and disregarded his other limitations, such as
limitations in walking long distances, lifting, squatting, kneeling, crawling, climbing, and
working at unprotected heights. Based on the evidence Plaintiff has presented, a jury
could conclude that Plaintiff reasonably believed he was disabled in August 2008.
But the district court is correct that Plaintiff has failed to establish pretext.
Defendant says it fired Plaintiff for the non-discriminatory reason that he was unable to
perform an essential function of his job—roof inspections.4 Thus, the burden shifted
back to Plaintiff to show “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence.”
E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1052 (10th Cir. 2011).
4
Of course, Plaintiff has tried to persuade us this firing was discriminatory
because Defendant failed to reassign him to another position. But we have already
concluded Defendant did not discriminate against Plaintiff in violation of the ADA
because Plaintiff was not disabled. Furthermore, an employer’s failure to reassign an
employee is properly considered as part of an ADA discrimination claim not a retaliation
claim, where the relevant question is whether the employer’s “motive for taking the
adverse action was its desire to retaliate for the protected activity.” Proctor v. United
Parcel Service, 502 F.3d 1200, 1210–11 (10th Cir. 2007) (quoting Wells v. Colo. Dep’t
of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003)).
12
Plaintiff cannot meet that burden here. He admits he was unable to perform roof
inspections in August 2008. But he points to several other facts which he says support
pretext. First, another field claim adjuster submitted an affidavit asserting he was
unaware of any increased workload as a result of Plaintiff’s injury and had never heard
any other adjusters complain about Plaintiff’s inability to perform roof inspections.
Second, Plaintiff says “a comparison of the number of field assignments given to the
adjusters in [Plaintiff’s] territory before and after his injury indicates that the number of
assignments did not significantly increase and, in some cases, decreased after [Plaintiff’s]
injury.” Appellant’s Br. at 24. Third, Defendant only notified Plaintiff his job could be
in jeopardy a few days before his firing, and previously indicated he was doing a good
job. Fourth, Defendant made no effort to reassign Plaintiff, even though he expressed
willingness to work in other positions. And finally, Defendant told Plaintiff he was
ineligible for rehire.
These facts are insufficient to show pretext. The other adjuster’s affidavit does
nothing to disprove Defendant’s assertion that performing roof inspections was an
essential function of the field claim adjuster position. Nor can we accept Plaintiff’s
assertion that the workload on other adjuster’s stayed level or decreased after his injury.
The only evidence Plaintiff introduces in support of this claim consists of two tables
showing the number of “property assignments” to field adjusters in Defendant’s northern
and southern Colorado regions. Appellant’s App., vol. IV at 423. But these tables are
only for 2008, even though Plaintiff’s injury occurred in June 2007. So these tables tell
us nothing about the effect of his injury on the other adjusters’ workload. Bourcy’s
13
assurances to Plaintiff that he was doing a good job were perhaps misleading, if
Defendant indeed needed Plaintiff to return to roof claims. But they do not suggest
Defendant fired Plaintiff for asserting his ADA rights, rather than for his inability to
perform the functions of a field claims adjuster.
Finally, Defendant’s failure to reassign Plaintiff to a different position and its
unwillingness to rehire him do not undermine Defendant’s asserted justification for the
firing. These facts might have been relevant to Plaintiff’s ADA discrimination claim if
we had concluded Plaintiff was disabled under the ADA. Employers have a duty, in
certain circumstances, to reassign a disabled employee to another vacant job within the
company. Midland Brake, 180 F.3d at 1171. But these facts do not suggest Defendant
fired Plaintiff for some reason other than his inability to do roof inspections. Because
Plaintiff cannot show pretext, Defendant was entitled to summary judgment on Plaintiff’s
ADA retaliation claim.
IV.
Plaintiff’s FMLA retaliation claim, like his ADA claims, is subject to the
McDonnell Douglas burden-shifting analysis. To make out a prima facie case, Plaintiff
must show (1) he engaged in a protected activity, (2) his employer took a materially
adverse action, and (3) a causal connection exists between the protected activity and the
adverse action. Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). The
district court first held Plaintiff did not engage in protected activity because he never
actually took FMLA leave. In the alternative, the court held Plaintiff failed to establish a
causal connection between the protected activity and the firing.
14
In support of its first holding, the district court said, “Tenth Circuit law is unsettled
as to whether an employee must actually have taken FMLA leave as a prerequisite to a
retaliation claim.” Wehrley, 2012 WL 415421 at *14. The court cited our unpublished
decision in Wilkins v. Packerware Corp., 260 F. App’x 98, 103 (10th Cir. 2008)
(unpublished), where we said it was an open question whether “the lawful taking of
FLMA leave is a prerequisite to a retaliation claim.” But Wilkins only addressed whether
someone must actually be eligible for FMLA leave in order to bring a retaliation claim.
Id. Whether the plaintiff must actually take FMLA leave is a different question. Three
other circuits have concluded that notifying an employer of the intent to take FMLA
leave is protected activity. Pereda v. Brookdale Senior Living Communities, Inc., 666
F.3d 1269, 1276 n.8 (11th Cir. 2012); Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509
(3d Cir. 2009); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir.
2001) (“The right to take . . . leave pursuant to the FMLA includes the right to declare an
intention to take such leave in the future.”).
We are persuaded to follow these circuits for two reasons. First, the FMLA
requires an employee to provide his employer “not less than 30 days’ notice” before
taking leave for foreseeable medical treatment. 29 U.S.C. § 2612(e)(2). Because the
FMLA expressly requires this notice, giving such notice reasonably must be “protected
activity.” Second, any other view would lead to an absurd result—an employee would be
unprotected from retaliation during the thirty or more days prior to taking FMLA leave.
As the Third Circuit observed, this “would perversely allow a[n] employer to limit an
FMLA plaintiff’s theories of recovery by preemptively firing her.” Erdman, 582 F.3d at
15
509. We reject this absurd result and hold that giving an employer notice of intent to take
FMLA leave, at least where the employee qualifies for that leave, is protected activity for
purposes of an FMLA retaliation claim. So Plaintiff has satisfied the first element of a
prima facie case.
We also must reject the district court’s alternative holding that Plaintiff failed to
show a causal connection between his protected activity and his firing. Plaintiff relies on
the temporal proximity between his statement of intent to take FMLA leave and his
firing. Temporal proximity can be “relevant evidence of a causal connection sufficient to
justify an inference of retaliatory motive.” Metzler v. Fed. Home Loan Bank of Topeka,
464 F.3d 1164, 1171 (10th Cir. 2006) (internal quotation marks omitted). “We have
emphasized, however, that a plaintiff may rely on temporal proximity alone only if ‘the
termination is very closely connected in time to the protected activity.’” Id. (quoting
Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999)). In Metzler, the
defendant terminated the plaintiff “at most about 6 weeks after [the defendant] knew [the
plaintiff] intended to engage in protected activity and within as little as four weeks of [the
plaintiff’s] request for FMLA-protected leave.” Id. at 1171–72. We said, “Because [the
plaintiff’s] termination was therefore ‘very closely connected in time’ to her protected
FMLA activity, she has established the third, and final, element of her prima facie case.”
Id. at 1172 (quoting Anderson, 181 F.3d at 1179) (internal citation omitted). Here,
Defendant fired Plaintiff only five weeks after he informed Bourcy he might take FMLA
leave. Under Metzler, this temporal connection alone is enough to satisfy the third
element of a prima facie case. Because the second element is not in dispute, Plaintiff has
16
met his initial burden under the McDonnell Douglas framework.
The district court ended its analysis here, but we do not. We may affirm summary
judgment on any basis supported by the record. See Seegmiller v. LaVerkin City, 528
F.3d 762, 767 (10th Cir. 2008). Once Plaintiff makes out a prima facie case, Defendant
must offer a legitimate reason for terminating Plaintiff. Robert, 691 F.3d at 1219.
Defendant’s proffered reason—that Plaintiff could not fulfill an essential function of his
job—is legitimate. So the burden shifts back to Plaintiff to present evidence supporting
pretext. Id. As with his ADA retaliation claim, Plaintiff has not adduced sufficient facts
to establish pretext. None of the evidence suggests Defendant was opposed to Plaintiff
taking FMLA leave. In fact, Bourcy encouraged Plaintiff to contact the FMLA
coordinator as soon as possible when his surgery was initially scheduled. Cf. Sabourin v.
University of Utah, 676 F.3d 950, 960 (10th Cir. 2012) (supervisor “exploded” when she
heard that employee took FMLA leave). Nor do Bourcy’s later inquiries regarding
whether Plaintiff had taken FMLA leave suggest pretext. Plaintiff had postponed his
surgery once, and Bourcy would naturally want to know if Plaintiff would be taking
FMLA leave any time soon. And Bourcy assured Plaintiff his actions at the time were
“reasonable.” So these facts do not establish pretext. Finally, Plaintiff’s ineligibility for
rehire is not enough to establish pretext in this case. Although an employer’s
unwillingness to rehire an employee in a position for which he is qualified could suggest
pretext, it is not alone sufficient to show pretext. In short, even though Plaintiff had
informed Defendant of his intent to take FMLA leave, there is insufficient evidence for a
jury to find that Defendant fired Plaintiff because he intended to take FMLA leave.
17
V.
We turn finally to Plaintiff’s state law claim, over which the district court
exercised supplemental jurisdiction. See 28 U.S.C. § 1367(a). Colorado courts have
implied a cause of action for retaliation for the exercise of workers’ compensation rights.
Lathrop v. Entenmann’s, Inc., 770 P.2d 1367, 1373 (Colo. Ct. App. 1989). “[S]ince an
employee is granted the specific right to apply for and receive compensation under the
[Workmen’s Compensation Act of Colorado], an employer’s retaliation against such an
employee for his exercise of such right violates Colorado’s public policy.” Lathrop, 770
P.2d at 1373. Colorado’s case law regarding this claim is not well developed, but the
claim at the very least requires evidence of a causal connection between the exercise of
worker’s compensation rights and the firing. See id. at 1372–73 (agreeing with a court
that recognized a common law claim “by an employee for wrongful discharge if the
employee is discharged in retaliation for pursuing a workmen’s compensation claim.”).
The district court concluded Plaintiff introduced insufficient evidence of this connection.
Plaintiff points to several pieces of evidence that he thinks make the connection.
First, Plaintiff challenged the workers’ compensation doctor’s conclusions by requesting
an independent medical evaluation. Second, he repeatedly challenged Sentry’s decision
to deny him surgery. Third, only a two-month gap separated his request for surgery from
his termination. Fourth, Bourcy “pushed” Plaintiff to have his personal insurer cover the
surgery, rather than Sentry. And, fifth, Bourcy decided to fire Plaintiff after a conference
call that included the attorney involved in Plaintiff’s workers’ compensation claim.
These facts are not sufficient to overcome summary judgment. The fact that
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Plaintiff disputed a number of workers’ compensation determinations over the nine-
month period leading up to his firing suggests a possible motive for retaliation, but it does
not undermine Defendant’s stated reason for terminating Plaintiff. Furthermore, Bourcy
did not “push” Plaintiff to have his personal insurer cover the surgery until after Sentry
denied coverage. So this evidence does not suggest Bourcy wanted to keep Sentry from
having to cover the surgery. At most, it indicates that Bourcy wanted Plaintiff to obtain
the surgery through other means once Sentry denied coverage. Finally, none of the
deposition testimony related to the conference call suggests that Plaintiff’s workers’
compensation claim had anything to do with his termination. The mere fact that an
attorney involved with that claim was on the phone is not enough to show causation. So
Defendant was entitled to summary judgment on this claim.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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