Bethscheider v. Westar Energy ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 14, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
DANAH LEE BETHSCHEIDER,
Plaintiff - Appellant,
v. No. 19-3243
(D.C. No. 5:16-CV-04006-CM)
WESTAR ENERGY, (D. Kan.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
_________________________________
Plaintiff Danah Bethscheider sued Defendant Westar Energy, Inc. (“Westar”),
her former employer, for disability discrimination in violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12111–12117. She appeals from three orders
of the district court: the denial of her request to extend discovery, the denial of her
motion to amend the pretrial order, and the grant of Westar’s motion for summary
judgment. We affirm the judgment of the district court.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
BACKGROUND
Bethscheider worked as an Accounts Payable Analyst for Westar from January
27 to May 15, 2014. In that period, she missed all or part of twelve workdays, five of
which were missed due to migraines. On May 15, 2014, Westar terminated
Bethscheider. In its written record of the termination, Westar stated “Regular
attendance is job related and consistent with our business needs. . . . Because
[Bethscheider] is chronically, frequently, and unpredictably absent from work,
management has determined she is unable to perform the functions of her job which
is resulting in termination.” Aplt. App. Vol. 1 at 109. Bethscheider asserts her direct
supervisor, Vicki Shurtz, made statements on the day she was fired to the effect that
Bethscheider’s missed work due to her migraines was the reason for her termination.
Id. Vol. 2 at 375; see also id. at 282–83. Bethscheider sued Westar, alleging her
termination violated the ADA
After a conference in which both parties were represented by counsel, the
district court entered a scheduling order specifying discovery was to be completed by
September 5, 2017. On September 14, 2017, following another conference in which
both parties, through counsel, participated, the court entered a final pretrial order.
The order specified it would “not be modified except by consent of the parties and
the court’s approval, or by order of the court to prevent manifest injustice.” Id. Vol.
1 at 24. On October 6, 2017, Westar moved for summary judgment. Bethscheider
did not file a response until November 27, 2017, over a month out of time. See D.
Kan. Civ. R. 6.1(d)(2) (“Responses to . . . motions for summary judgment . . . must
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be filed and served within 21 days.”). In its reply, Westar argued the response should
be struck as untimely.
On May 18, 2018, due to disciplinary issues in an unrelated case,
Bethscheider’s attorney moved to withdraw. The court granted the motion three days
later. On May 30, 2018, the district court struck the untimely response to the
summary judgment motion and, on its own motion, extended Bethscheider 30 days to
obtain new counsel, after which it would consider a motion to file a response to the
motion for summary judgment out of time.
Bethscheider successfully obtained new counsel, who entered her appearance
on July 16, 2018. By motion on July 27, 2018, through her new counsel,
Bethscheider requested that the court not only grant her permission to respond to the
motion for summary judgment out of time, but also to amend the pretrial order and
extend discovery. Bethscheider sought to amend the pretrial order to assert
additional claims for relief and request noneconomic and punitive damages. She
sought an extension of the discovery cutoff so she could depose Defendant pursuant
to Fed. R. Civ. P. 30(b)(6).
On March 20, 2019, the court granted the request to respond to the motion for
summary judgment but denied the requests to reopen discovery and amend the
pretrial order. Bethscheider’s new counsel filed a response opposing the motion for
summary judgment on April 19, 2019. The court granted the motion on December
31, 2019. This appeal follows.
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ANALYSIS
A. Motions to Amend the Pretrial Order and Extend Discovery
Bethscheider asserts the district court erred in denying her motion to reopen
discovery and amend the pretrial order. We disagree. “[T]he district court has wide
discretion in its regulation of pretrial matters.” SIL-FLO, Inc. v. SFHC, Inc.,
917 F.2d 1507, 1514 (10th Cir. 1990). Therefore, “[w]e review the court’s decision
precluding the reopening of discovery for an abuse of discretion.” Id. Likewise, we
review a denial of a motion to amend the pretrial order for an abuse of discretion.
Koch v. Koch Indus., Inc., 203 F.3d 1202, 1216 (10th Cir. 2000). An abuse of
discretion occurs where the court’s decision is “arbitrary, capricious, or whimsical.”
Cox v. Sandia Corp., 941 F.2d 1124, 1125 (10th Cir. 1991) (internal quotation marks
omitted). We will not disturb the trial court’s decision without “a definite and firm
conviction that the lower court made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.” United States v. Ortiz, 804 F.2d
1161, 1164 n.2 (10th Cir. 1986).
In its March 20, 2019 order, recognizing the unique circumstances of the case,
the district court balanced fairness to Bethscheider, whose prior counsel had
withdrawn due to disciplinary issues, with fairness to Westar, which should not be
penalized for circumstances outside of its control. Bethscheider is bound by the
actions and/or mistakes of her prior counsel, including his inexplicable failure to
conduct discovery or advance potentially meritorious claims. Bethscheider
“voluntarily chose this attorney as [her] representative in the action, and [s]he cannot
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now avoid the consequences of the acts or omissions of this freely selected agent.”
Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 (1962).
Bethscheider’s prior counsel had over five months to conduct any necessary
discovery, an amount of time which was sufficient for Westar to complete the same.
Likewise, Bethscheider’s prior counsel had the opportunity to enumerate whichever
legal theories and damage claims he deemed most suitable for his client’s cause prior
to entry of the September 14, 2017, pretrial order. Under these circumstances, the
district court acted well within the bounds of permissible choice in declining to
reopen discovery or alter the pretrial order at the request of subsequent counsel, and
so it did not abuse its discretion in denying Bethscheider’s motions.
B. Motion for Summary Judgment
Bethscheider also asserts the district court erred in granting Westar’s motion
for summary judgment. We disagree. “We review summary judgment decisions de
novo, applying the same legal standard as the district court.” May v. Segovia,
929 F.3d 1223, 1234 (10th Cir. 2019) (internal quotation marks omitted). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “We examine the record and all reasonable inferences that might be
drawn from it in the light most favorable to the non-moving party.” T-Mobile Cent.,
LLC v. Unified Gov’t of Wyandotte Cty., 546 F.3d 1299, 1306 (10th Cir. 2008)
(internal quotation marks omitted).
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The ADA prohibits discrimination in employment against “qualified
individual[s] on the basis of disability.” 42 U.S.C. § 12112(a). Thus
[t]o establish a prima facie case of discrimination under the
ADA, a plaintiff must show (1) that he is disabled within
the meaning of the ADA; (2) that he is qualified, with or
without reasonable accommodation, to perform the
essential functions of the job held or desired; and (3) that
he was discriminated against because of his disability.
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003) (internal
quotation marks omitted). A “qualified individual” is “an individual 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).
The court must consider “the employer’s judgment as to what functions of a job are
essential, and if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered evidence of
the essential functions of the job.” Id. “We will not second guess the employer’s
judgment when its description is job-related, uniformly enforced, and consistent with
business necessity.” Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1119
(10th Cir. 2004).
The district court concluded Westar was entitled to summary judgment
because, assuming without deciding Bethscheider’s migraine condition was a
disability within the meaning of the statute and that she was fired because of that
condition, she was not a “qualified individual” because attendance was an essential
function of the Accounts Payable Analyst position. See Punt v. Kelly Servs.,
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862 F.3d 1040, 1051 (10th Cir. 2017) (“Physical attendance in the workplace is itself
an essential function of most jobs, and an employee’s request to work from home is,
as a matter of law, unreasonable if the employer has decided that physical presence at
the workplace is an essential function of the position.” (internal quotation marks,
citation, and brackets omitted)). Schurtz attested that attendance was an essential
function of the position because the job responsibilities often required immediate
communication with vendors and employees, for example, about company credit card
issues. The written job description for the position described the “Scheduled Work
Hours” as “Monday – Friday, 8:00 am to 5:00 pm,” and “Working Conditions” as
“Normal office working conditions. Must have a satisfactory work record including
good attendance.” Aplt. App. Vol. 1 at 98–99. The court rejected Bethscheider’s
contentions that she was “qualified” if accommodated with a flexible schedule, the
option to work from home, and/or intermittent leave whenever she experienced
migraines, concluding such accommodations were unreasonable as a matter of law on
the summary judgment record.
On appeal, Bethscheider argues the district court erred because it did not
distinguish between “some . . . attendance,” “sufficient attendance,” and “attendance
that is in compliance with an employer’s attendance policy.” Aplt. Br. at 22
(emphasis omitted). She concedes “sufficient” attendance was an essential function
of her position but contends a genuine issue of material fact exists as to whether she
could have provided sufficient attendance to Westar and therefore perform the
essential functions of an Accounts Payable Analyst. Bethscheider asserts such an
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issue exists because (1) she was never provided a written attendance policy, (2) she
was not disciplined for absenteeism until her termination, (3) she was told she would
have “flex time,” allowing her to make up hours missed outside the normal schedule,
and (4) she was not told her absences were unacceptable to Westar at the time she
took them.
Bethscheider, however, relies exclusively on her own affidavit and deposition
testimony relating her personal experiences at Westar to support these contentions.
Even taking her claims as true and construing them in the light most favorable to her,
this type of testimony, on its own, does not create a genuine issue of material fact on
the question of whether certain job duties are essential. See Mason, 357 F.3d at 1122
(“We are reluctant to allow employees to define the essential functions of their
positions based solely on their personal viewpoint and experience.”). Because no
genuine issue of material fact exists on the question of whether Bethscheider could
perform an essential function of her job (i.e. sufficient attendance), the district court
correctly concluded she was not a “qualified individual” entitled to protection under
the ADA, and properly entered summary judgment in favor of Westar.
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CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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