Wickware v. Johns Manville ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 17, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
VERNELL WICKWARE, JR.,
Plaintiff - Appellant,
No. 15-6028
v.
(D.C. No. 5:13-CV-00424-D)
(W.D. Okla.)
JOHNS MANVILLE,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before LUCERO, HOLMES, and MATHESON, Circuit Judges.
Vernell Wickware, Jr., filed claims of discrimination and retaliation against
his former employer, Johns Manville, alleging violations of the Americans with
Disabilities Act as amended (“ADA”). The district court granted summary
judgment in favor of Johns Manville on the discrimination claims and dismissed
the retaliation claim for lack of jurisdiction. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
I
On an appeal from a ruling granting summary judgment, “‘we examine the
record and all reasonable inferences that might be drawn from it in the light most
favorable to the non-moving party,’ without making credibility determinations or
weighing the evidence.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1213 (10th Cir.
2015) (quoting Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 953 n.2
(10th Cir. 2012)); accord Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052,
1058 (10th Cir. 2009). We recite the relevant facts with this standard in mind.
A
For approximately twenty-six years, Mr. Wickware was employed by Johns
Manville, a company that manufactures commercial roofing. At some time prior
to 2011, Mr. Wickware became a forklift operator and a relief foreman at Johns
Manville’s Oklahoma City, Oklahoma, plant, and, in early 2011, John Dodi
became the plant manager. At all relevant times, the plant employed a human
resources manager, named Jim Shantz, who was responsible for overseeing Johns
Manville’s written personnel policies regarding equal employment opportunity.
Mr. Wickware suffers from a medical condition in his left knee. This
condition prevents him from undertaking certain physical activities, including
sporting activities and walking long distances. He is also limited in the range of
tasks that he can perform on the job. On the recommendation of Dr. Thomas
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Flesher, Mr. Wickware’s physician, Mr. Wickware may only occasionally lift no
more than twenty to fifty pounds “of force” and only occasionally squat, kneel,
crawl, or climb. Aplt.’s App. at 150 (Flesher Rpt., dated Jan. 24, 2011). Mr.
Wickware is also limited in the length of time he can work—viz., if he is expected
to work twelve-hour days, he may work no more than four days per week.
Johns Manville recorded these restrictions in its personnel files, and, in
2010—before Mr. Dodi became plant manager—entered into an agreement with
Mr. Wickware that he would work as a forklift operator subject to the restrictions.
Under the agreement, Mr. Wickware would have to meet the following specific
physical requirements:
Operating Forklift continuously during production to maintain
work flow, maintains product packing, supplies bags, cores and
any other material needed for production. Operator completes
repacking resulting from damage, equipment failure or weather.
This activity requires operator to mount and dismount the forklift
on a continuous basis during shift operations, supporting upset
condition, checking quality, as needed. May perform other
activities not identified. 70% of the time at the position will be
seated, 30% of the time at the position will be standing/walking.
Occasional lifting of materials up to 65 lbs will be required.
Breaks are self driven, with the Operator being relieved from
duty for a ½ hour lunch.
Aplt.’s App. at 148 (Agreement, dated Sept. 17, 2010).
In May 2011, Mr. Dodi presented Mr. Wickware with a new restricted
compliance agreement, which Mr. Wickware signed. The new agreement
enumerated largely the same restrictions as the 2010 agreement, providing that:
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(1) Mr. Wickware “[m]ay work in the medium work category”—but not in a
higher work category; (2) he “[m]ay lift 20 [to] 50 pounds of force occasionally”;
(3) he “[s]hould not squat, kneel, crawl, or climb more than occasionally”; (4) he
should “[w]ork no more than four days a week when working twelve hour days”;
and (5) “[o]ccasionally as defined by Dr. Thomas H. Flesher, III, M.D. means 1 to
33% of the work shift.” Id. at 151 (Restricted Duty Compliance Agm’t, dated
May 18, 2011).
B
Beginning in 2010, Johns Manville implemented a wage program at its
Oklahoma City plant called the Pay for Skills Plan. The Pay for Skills Plan
determined wage rates under a point-system where each employee was assigned
points based on how skilled or knowledgeable they were in each position in the
plant. After Mr. Dodi became plant manager in 2011, he made changes to this
program, which he believed would make the program easier to administer. Under
the amended program, an employee’s compensation was based on the number of
positions the employee could perform in the plant. As part of the transition from
the 2010 plan, current employees were assigned a wage rate based on their then-
existing position at the plant, and they were allowed a grace period to learn the
skills needed to qualify for and perform the number of positions that would allow
them to remain at that wage rate.
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The Pay for Skills Plan, as amended in 2011, required a relief foreman to
be “[q]ualified in all lower operator levels.” 1 Id. at 155 (Okla. City Pay for Skills
Program, dated July 1, 2011). As the parties seem to agree, the phrase “lower
operator levels” refers to the five operator positions—viz., mat tender, coater,
forklift, winder, and robot—and two relief operator positions—viz., back end
relief operator and front end relief operator.
The amended Pay for Skills Plan was implemented in July 2011, and, at
that time, Mr. Wickware was working as a forklift operator and relief foreman. In
that same month, Mr. Dodi met with Mr. Wickware, provided Mr. Wickware with
a job description for each of the five operator positions and the two relief foreman
positions, and asked him to write down what [he] [thought] [he] can do on any job
out here or what [he] can’t do.” Id. at 73 (Dep. of Mr. Wickware, dated Mar. 4,
2014). According to Mr. Dodi, Mr. Wickware’s responses did not correspond
with the medical restrictions that Johns Manville had in its records. In this
regard, Mr. Dodi arranged a second meeting with Mr. Wickware on August 25,
2011, and drafted a memorandum based on that meeting, clarifying which tasks
1
Under the 2011 Pay for Skills Plan, there are eight pay levels—viz.,
“Operations Trainee”; “Operator, Level One”; “Operator, Level Two”; “Operator,
Level Three”; “Operator, Level Four”; “Operator, Level Five”; “Back End Relief
Operator”; and “Front End Relief Operator.” Aplt.’s App. at 154–55. To advance
from one level to the next, an employee must, inter alia, be “qualified” in
additional operator positions. Id. at 155.
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required by each position Mr. Wickware could not perform. Both Mr. Dodi and
Mr. Wickware signed the memorandum on September 6, 2011.
Following these meetings, Mr. Dodi hired an ergonomics specialist, Dr.
Dennis Seal, to perform a survey of the ergonomic features of the tasks required
by each position under the Pay for Skills Plan. Specifically, at Mr. Dodi’s
request, Dr. Seal evaluated “[a]ll tasks in which Mr. Wickware had originally
qualified . . . based on ergonomic criteria and potential for physical stress or
repetitive bodily harm.” Id. at 186 (Ergonomic Eval. of Job. Reqs., dated Oct. 31,
2011). On September 23, 2011, Dr. Seal visited the Oklahoma City plant where
he observed employees performing job tasks in each position, although Mr.
Wickware was not present. Based on his observations at the plant and his prior
experience performing ergonomic workstation assessments, Dr. Seal determined
the physical requirements of each position relative to Mr. Wickware’s ability to
safely perform the tasks. Having concluded that “all required functions [were]
within safe working limits with respect to weight and force, repetitions, squatting,
kneeling or crawling,” Dr. Seal memorialized his findings in a report issued on
October 31, 2011. Id. at 187.
Mr. Dodi then presented Dr. Seal’s written ergonomic assessment to Mr.
Wickware. Mr. Wickware challenged the assessment’s findings based on his
medical restrictions, which were already on file with Johns Manville by the time
of the assessment. Although Dr. Seal had concluded that Mr. Wickware could
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perform all the tasks required by each position, Mr. Wickware believed that many
of the tasks would necessitate physical activity that he was restricted from doing.
Based on Mr. Wickware’s refusal to accept the findings of the assessment,
Mr. Dodi placed Mr. Wickware on paid leave and asked him to submit to a
medical evaluation to provide updated medical restrictions. However, Mr.
Wickware was unable to obtain a second evaluation from Dr. Flesher, the
physician who performed Mr. Wickware’s first evaluation and recorded Mr.
Wickware’s medical restrictions then on file with Johns Manville. Mr. Wickware
instead went to his primary physician, Dr. Carl Limbaugh; Mr. Wickware
presented Mr. Dodi a handwritten note on Dr. Limbaugh’s stationary. The note
stated that Mr. Wickware had a knee injury, was unable to squat repetitively, lift
more than twenty pounds, or stand for prolonged periods. See id. at 189 (Note of
Dr. Limbaugh, dated Jan. 18, 2012). Mr. Dodi told Mr. Wickware that he did not
understand the medical restrictions stated in Dr. Limbaugh’s note and needed
additional information.
Although Mr. Wickware disagreed that additional information was needed,
Mr. Shantz, the plant human resources manager, arranged for Mr. Wickware to
obtain an evaluation from a specialist named Dr. Gannaway, who was retained by
Johns Manville. Dr. Gannaway concluded that Mr. Wickware “needs to avoid
pivoting, loading, twisting, [and] pushing & twisting,” and that he should “never”
squat or climb ladders. Id. at 193 (Dr. Gannaway’s Eval., dated Jan. 25, 2012).
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Dr. Gannaway also concluded that Mr. Wickware should only occasionally (i.e.,
one to thirty-three percent of the time) stand, walk, lift up to fifty pounds, push or
pull up to fifty pounds, or climb stairs.
On January 31, 2012, following Dr. Gannaway’s evaluation, Mr. Wickware
met with Mr. Shantz and reviewed the tasks required by each position. During
the meeting, Mr. Wickware noted his medical restrictions in performing each task.
Based on Mr. Wickware’s responses, Mr. Shantz updated the August 25, 2011,
memorandum clarifying Mr. Wickware’s medical restrictions as to each position.
The resulting updated version of the memorandum contained no changes from the
original. Specifically, it provided Mr. Wickware’s comments as to each position
and stated either “No changes to the above” or “above is still accurate.” Id. at
194–96 (Clarification of Abilities/Restrictions, dated Jan. 31, 2012).
On February 13, 2012, Mr. Dodi and Mr. Shantz held a meeting with Mr.
Wickware in which they informed him of their belief that he was qualified to
perform only the position of forklift operator and that he would be assigned to an
“Operator, Level One” position—i.e., the second lowest pay level under the 2011
Pay for Skills Plan. Under the plan, an employee would be assigned to an
“Operator, Level One” position based on his “[q]ualification on and operation of
one of the five operator positions.” Id. at 154. However, Mr. Wickware
maintained that he would be qualified for an additional operator
position—namely, coater operator—if an accommodation was made to allow him
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to use a smaller shovel to avoid having to lift more than fifty pounds when
cleaning the coater machine. 2 The meeting then adjourned until a second meeting
was held the following day.
At the second meeting, Mr. Dodi and Mr. Shantz informed Mr. Wickware
of an adjustment; they indicated that Mr. Wickware would be classified in an
“Operator, Level Two” position. Mr. Dodi and Mr. Shantz believed that Mr.
Wickware was qualified to perform the coater operator and forklift operator
position. Although Mr. Wickware agreed that he was indeed qualified for these
two operator positions, he made it clear at the meeting that he believed he could
be a relief foreman regardless of whether he was qualified for any of the operator
positions.
Mr. Wickware believed that unlike the operator positions, which had
written job tasks and standards, Johns Manville did not maintain a list of job tasks
and standards for the relief foreman position. Furthermore, in Mr. Wickware’s
view, if it was “the company’s position that you have to be qualified for each of
the operator positions before you get to be a relief foreman,” no written policies
stated that requirement. Id. at 91. However, based on the 2011 Pay for Skills
Plan, Mr. Dodi did not accept that Mr. Wickware was “qualif[ied] as a Relief
2
The primary responsibility of a coater operator, as listed in Johns
Manville’s job standards, “is to operate both the ply and filler coater
machines . . . . [and] [p]erform[ ] daily housekeeping functions.” Aplt.’s App. at
157 (Coater Operator Job Standards, dated July 26, 2011).
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Foreman,” because, in Mr. Dodi’s view, “an employee must be qualified and able
to perform all production operator positions,” and Mr. Wickware could perform
only two operator positions. 3 Id. at 131. Therefore, Mr. Dodi placed Mr.
Wickware in a “Level 2 Operator” position and did not assign him to the position
of relief foreman.
C
In May 2012, Mr. Wickware filed a timely charge with the Equal
Employment Opportunity Commission (“EEOC”), alleging discrimination based
on his adjusted “title and pay”—viz., his demotion from relief foreman to forklift
operator. On January 17, 2013, Mr. Wickware indicated to the EEOC investigator
that he desired to amend the charge to include a retaliation claim. Mr. Wickware
had previously complained to Mr. Shantz that Mr. Dodi was harassing him for
filing an EEOC charge. In particular, he complained to the EEOC investigator
that Johns Manville was using confidential information obtained during mediation
against him in responding to the EEOC charge. The investigator advised Mr.
Wickware to provide a statement or affidavit alleging retaliation within ten days,
but Mr. Wickware failed to do so or to provide any additional evidence.
On January 31, 2013, the EEOC issued a document finding that there was
no reasonable cause to believe that an ADA violation occurred based on the
3
Under the 2011 Pay for Skills Plan, beneath the position “Relief
Foreman” is listed, inter alia, “Qualified in all lower operator levels.” Aplt.’s
App. at 155.
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evidence that Mr. Wickware had provided. In the same document, the EEOC
dismissed Mr. Wickware’s charge and issued a notice of right to sue. Mr.
Wickware simultaneously filed an amended charge that included both
discrimination and retaliation claims, but the record does not indicate that the
EEOC ever addressed the amended charge or issued notice of a right to sue under
the retaliation claim.
Mr. Wickware filed suit in the United States District Court for the Western
District of Oklahoma after receiving his notice of right to sue. In his complaint,
Mr. Wickware asserted that Johns Manville violated the ADA by failing to
accommodate his disability, regarding him as being disabled to such an extent
that he could not perform the essential functions of his job, and retaliating against
him after he filed the EEOC charge.
After the close of discovery and a full round of briefing, the district court
granted summary judgment to Johns Manville. The court first determined that it
lacked subject-matter jurisdiction to decide the merits of Mr. Wickware’s claim of
retaliation because Mr. Wickware presented no facts from which the court could
conclude that he filed an administrative complaint regarding that claim. Turning
to the discrimination claim, the court opined that Mr. Wickware failed “to set
forth specific facts that show a genuine issue for trial on the question of whether
he was qualified with reasonable accommodation to satisfy the job requirements
of a relief foreman in 2012.” Id. at 464 (Order, dated Nov. 7, 2014). In reaching
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its decision, the court did not first rule on Mr. Wickware’s earlier-filed motion to
compel responses to certain questions he asked Mr. Dodi and Mr. Shantz at their
depositions. The court also expressly refused to consider the statements of three
Johns Manville employees, Scott Henderson, Christian Islas, and Monte Jeffries.
After granting Johns Manville’s motion to strike Mr. Wickware’s objection
to its bill of costs as untimely, the district court denied Mr. Wickware’s motion
for new trial or reconsideration pursuant to Federal Rule of Civil Procedure 59.
In denying the Rule 59 motion, the court expressly declined to consider the
deposition testimony of Lee Glossett, a former Johns Manville employee, which
Mr. Wickware presented for the first time as an attachment to his motion.
Subsequently, the court taxed costs against Mr. Wickware.
Mr. Wickware has timely appealed from the district court’s rulings.
II
A
1
Before taking up Mr. Wickware’s arguments for reversal with respect to his
disability-discrimination claim, we set forth the applicable legal standards.
a
Mr. Wickware’s discrimination claim was dismissed on summary judgment.
“We review the district court’s grant of summary judgment de novo, applying the
same standard as the district court.” Hawkins v. Schwan’s Home Serv., Inc., 778
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F.3d 877, 882 (10th Cir. 2015) (quoting Crowe v. ADT Sec. Servs., Inc., 649 F.3d
1189, 1194 (10th Cir. 2011)); accord Monge v. RG Petro–Mach. (Grp.) Co., 701
F.3d 598, 604 (10th Cir. 2012). Accordingly, “[w]e view the facts, and all
reasonable inferences those facts support, in the light most favorable to the
nonmoving party.” Simmons v. Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir.
2011).
Generally, a district court should grant summary judgment “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) (emphases added).
“An issue is ‘genuine’ if there is sufficient evidence on each side so that a
rational trier of fact could resolve the issue either way,” and “[a]n issue of fact is
‘material’ if under the substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998);
accord Lounds, 812 F.3d at 1213.
b
Because Mr. Wickware contends that Johns Manville intentionally
discriminated against him by demoting him from his position as a relief foreman,
this appeal concerns, in part, a claim of disparate-treatment discrimination. See
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003). “We have
described the prima facie case for such a claim as ‘not onerous.’” Hawkins, 778
F.3d at 883 (quoting Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005)).
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Specifically, a plaintiff must show: “(1) [ ]he is disabled . . . ; (2) [ ]he is
qualified, with or without reasonable accommodation, to perform the essential
functions of the job held or desired; and (3) [ ]he was discriminated against
because of [his] disability.” Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114,
1118 (10th Cir. 2004); accord Osborne v. Baxter Healthcare Corp., 798 F.3d
1260, 1266 (10th Cir. 2015). “It is . . . incumbent upon [Mr. Wickware] at the
summary-judgment phase to ‘rais[e] a genuine issue of material fact on each
element of his prima facie case.’” Hawkins, 778 F.3d at 883 (second alteration in
original) (quoting Davidson, 337 F.3d at 1189).
“We generally review disparate-treatment claims under the framework of
McDonnell Douglas Corp. v. Green.” Id. (citations omitted); see McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Accordingly, under this
burden-shifting rubric, if Mr. Wickware was successful in establishing a prima
facie case, the onus would be on Johns Manville “to offer a legitimate
nondiscriminatory reason for its employment decision.” Davidson, 337 F.3d at
1189; accord Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1259 (10th Cir.
2001). If Johns Manville provided a nondiscriminatory reason for its decision,
the burden would shift back to Mr. Wickware “to show a genuine issue of
material fact as to whether [Johns Manville’s] reason for the adverse employment
action is pretextual.” Id.; accord Osborne, 798 F.3d at 1267.
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However, we need not apply this burden-shifting framework here. “If the
employer admits that the disability played a prominent part in the decision, or the
plaintiff has other direct evidence of discrimination based on disability, the
burden-shifting framework may be unnecessary and inappropriate.” Morgan v.
Hilti, Inc., 108 F.3d 1319, 1323 n.3 (10th Cir. 1997); accord White v. York Int’l
Corp., 45 F.3d 357, 361 n.6 (10th Cir. 1995); see also Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1184–85 (6th Cir. 1996). “Instead, an employer will defend
its decision on the ground that the plaintiff is not otherwise qualified for the
position, with or without reasonable accommodation.” Davidson, 337 F.3d at
1189; accord Hawkins, 778 F.3d at 883.
“At this point, the plaintiff’s status as a qualified individual with a
disability becomes ‘the determinative issue in the case.’” Hawkins, 778 F.3d at
883 (quoting Davidson, 337 F.3d at 1189). To make this determination, we
consider “two criteria.” Robert v. Bd. of Cty. Comm’rs, 691 F.3d 1211, 1216
(10th Cir. 2012). “First, we must assess whether [Mr. Wickware’s] impairment
prevented [him] from performing the essential functions of [his] job. If so, we
must then determine whether [he] might have nevertheless been able to perform
those functions if [Johns Manville] provided [him] a reasonable accommodation.”
Id. (citations omitted); accord Davidson, 337 F.3d at 1190. “To be clear,
however, we will not obligate an employer to create a position out of wholecloth
to accommodate the individual in question.” Hawkins, 778 F.3d at 884; see Smith
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v. Midland Brake, Inc., 180 F.3d 1154, 1174–75 (10th Cir. 1999) (en banc);
accord Mason, 357 F.3d at 1119.
The ADA defines “qualified individual” as a person “who, with or without
reasonable accommodation, can perform the essential functions of the
employment position that [he] holds or desires.” 42 U.S.C. § 12111(8). The
statute further provides that “consideration shall be given to the employer’s
judgment as to what functions of a job are essential, and if an employer has
prepared a written description . . . , this description shall be considered evidence
of the essential functions of the job.” Id. The statute also broadly defines
“reasonable accommodation” to include, inter alia, “job restructuring, part-time
or modified work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate adjustment or modifications of
examinations, [and] training materials or policies.” Id. § 12111(9)(B). Applying
the material terms of this statute, we have previously said that “[a plaintiff] is a
qualified individual as long as he can perform a job [offered by the employer] that
he desires.” Hawkins, 778 F.3d at 884 (alterations in original) (quoting Davidson,
337 F.3d at 1190).
In determining “what functions of a job are essential,” 42 U.S.C.
§ 12111(8), we look to the ADA’s implementing regulations, duly promulgated by
the EEOC, which define “essential functions” as “the fundamental job duties of
the employment position the individual with a disability holds or desires,” but not
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“the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). For example,
“[t]he function may be essential because the reason the position exists is to
perform that function.” Id. § 1630.2(n)(2)(i). We have not hesitated to rely on
the EEOC’s regulations in our essential function analysis. See Mason, 357 F.3d
at 1119. Moreover, we give deference to an employer’s judgment concerning the
essential functions of a job. See, e.g., Hennagir v. Utah Dep’t of Corr., 587 F.3d
1255, 1262 (10th Cir. 2006) (“We weigh heavily the employer’s judgment
regarding whether a job function is essential.”); accord Hawkins, 778 F.3d at 890.
And this deferential approach is “consonant” with Congress’s express desire to
shore up an employer’s ability to choose and maintain qualified workers.
Hawkins, 778 F.3d at 885; see H.R. Rep. No. 101–485(II), at 55 (1990), reprinted
in 1990 U.S.C.C.A.N. 303, 337.
2
Mr. Wickware contends that the district court’s decision to deny him relief
under his discrimination claim suffered from several legal errors. He primarily
disputes the court’s determination that he failed to show that he met the
“requirement to be classified as a relief foreman.” Aplt.’s App. at 461.
Specifically, Mr. Wickware contends that he needed only to “create a dispute of
fact” over whether he was “qualified” to perform the essential functions of the
operator positions, not whether he was able to perform those functions. Aplt.’s
Opening Br. at 29–30. In this regard, Mr. Wickware argues that the district court
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erroneously rejected multiple affidavits of Johns Manville employees supportive
of his theory of the essential functions of the relief foreman position. He also
challenges the district court’s determination that he could not perform the
essential functions of the relief foreman position even with an accommodation;
Mr. Wickware reasons that he should have been allowed to reassign tasks he
could not perform by himself.
In affirming the district court’s grant of summary judgment, we focus our
analysis on the court’s conclusion that Mr. Wickware failed to make a prima facie
ADA case. The district court’s well-reasoned analysis on this issue, standing
alone, provides a firm foundation for affirming its summary-judgment ruling.
Specifically, we hold that the district court (1) correctly concluded that Mr.
Wickware could not perform the essential functions of the relief foreman position,
and (2) did not err in its determination that the accommodation Mr. Wickware
sought was facially unreasonable.
a
The analytical rubric for addressing Mr. Wickware’s appellate arguments
was clearly framed in Wells v. Shalala, 228 F.3d 1137, 1144 (10th Cir. 2000).
Under that rubric, we first “must determine whether [Mr. Wickware] can perform
the essential functions of the job, i.e., functions that bear more than a marginal
relationship to the job at issue.” Id.; accord Hawkins, 778 F.3d at 887. Second,
if we conclude that Mr. Wickware is unable to perform the essential functions of
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the relief foreman position, “we must determine whether any reasonable
accommodation by [Johns Manville] would enable him to perform those
functions.” Shalala, 228 F.3d at 1144; accord Hennagir, 587 F.3d at 1264. At
this second stage of our analysis, “the relevant inquiry in determining whether
Plaintiff is ‘qualified’ . . . is whether he has provided evidence that [ ]he can be
reasonably accommodated.” Shalala, 228 F.3d at 1144 (alteration in original)
(emphasis added) (quoting Woodman, 132 F.3d at 1340).
Guided by the EEOC’s regulations, we have explicated factors that should
be considered in determining whether a particular function is essential to a
job—viz., (1) “the employer’s judgment as to which functions are essential”; (2)
“written job descriptions”; (3) “the consequences of not requiring the incumbent
to perform the function”; and (4) “the current work experience of incumbents in
similar jobs.” Shalala, 228 F.3d at 1144 (citing 29 C.F.R. § 1630.2(n)(3)). Thus,
as part of our inquiry, we look to “the employer’s judgment as to what functions
of a job are essential, including those functions contained in a written job
description.” Davidson, 337 F.3d at 1191; see 42 U.S.C. § 12111(8). “[T]he
essential function ‘inquiry is not intended to second guess the employer or to
require the employer to lower company standards,’” Mason, 357 F.3d at 1119
(quoting Tate v. Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir. 2001)), and
“the plaintiff at all times bears the ultimate burden of persuading the trier of fact
that he has been the victim of illegal discrimination based on his disability,”
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White v. York Int’l Corp., 45 F.3d 357, 361 (10th Cir. 1995). “Provided that any
necessary job specification is job-related, uniformly enforced, and consistent with
business necessity, the employer has a right to establish what a job is and what is
required to perform it.” EEOC v. Picture People, Inc., 684 F.3d 981, 986 (10th
Cir. 2012) (quoting Hennagir, 587 F.3d at 1262); accord Davidson, 337 F.3d at
1191. But we caution that, in the “necessary first step [of] identify[ing] the
‘essential functions’ of the position[,] . . . . the employer’s judgment is not
conclusive evidence.” Picture People, Inc., 684 F.3d at 997 (emphasis added).
b
We first assess whether Mr. Wickware has shown that he can perform the
essential functions of the relief foreman position. Mr. Wickware asserts that he
“simply needs to create a dispute of fact concerning whether other employees
with the Relief Foreman title were required to perform all operator positions.”
Aplt.’s Opening Br. at 29. He rests this assertion on his broader argument that
the relief foreman position requires that he “only be qualified for the operator
positions,” not capable of actually “performing those positions.” Id. at 30. The
district court here specified the regulatory factors that our caselaw articulates and,
assessing Mr. Wickware’s claim in light of those factors, concluded that he failed
to demonstrate a genuine dispute of material fact bearing on the issue of whether
“an ability to perform all operator positions was an ‘essential function’ of the
position of relief foreman.” Aplt.’s App. at 460 (emphasis added). Based on the
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record before us and relying on the same criteria as the district court, we are
satisfied that being able to perform all operator positions was an essential
function of the relief foreman position.
i
In the instant case, Johns Manville’s written description corresponding to
the relief foreman position requires that the relief foreman be “[q]ualified in all
lower operator levels.” Aplt.’s App. at 155. Furthermore, Mr. Dodi indicated
that the relief foreman “is required to be qualified and be able to perform all of
the job positions,” Aplt.’s App. at 146 (Dodi Dep., dated Mar. 7, 2014), and that
the relief foreman’s “value is in a great part due to his or her ability to be skilled
and able to work in all of the positions,” id. at 131 (Dodi Aff., dated Mar. 18,
2014). Coupled with the position description, Mr. Dodi’s testimony is persuasive
evidence that being able to perform all operator positions was an essential
function of the relief foreman position. See Kilcrease v. Domenico Transp. Co.,
828 F.3d 1214, 1222 (10th Cir. 2016) (concluding that employer’s “Mountain-
Driving Requirement” was an essential function, inter alia, because employer
“introduced evidence that a requirement of three years of verifiable
mountain-driving experience was contained in the advertisement to which
[plaintiff] responded,” and plaintiff “cite[d] no authority for the proposition that a
job requirement contained on the face of a job description cannot be essential
merely because it has not been reduced to a written company policy”); cf. Rorrer
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v. City of Stow, 743 F.3d 1025, 1039–40 (6th Cir. 2014) (“Testimony from the
plaintiff’s supervisor that a job function is actually marginal may effectively rebut
a written description that states that a job function is essential.”).
Although Mr. Wickware concedes that he is unable to perform all five
lower operator positions, he holds steadfastly to the notion that he must “only be
qualified for the operator positions,” without any consideration as to whether he
can actually perform the positions. Aplt.’s Opening Br. at 30. However, he
offers no legal basis to support this distinction and, more specifically, fails to
explain why being qualified in a lower operator position and being able to
perform that position should not be deemed, for all practical purposes,
conterminous requirements.
Mr. Wickware intimates, however, that his prior placement in the position
of relief foreman makes him qualified to perform that position. However,
although Mr. Wickware was assigned to the relief foreman position prior to the
implementation of the 2011 Pay for Skills program, “the essential function
inquiry is not conducted as of an individual’s hire date.” Hennagir, 587 F.3d at
1262. The statutory regime generally does not limit “an employer’s ability to
establish or change the content, nature, or functions of a job.” Milton v. Scrivner,
Inc., 53 F.3d 1118, 1124 (10th Cir. 1995). “We must look instead to whether a
job function was essential at the time it was imposed on [Mr. Wickware].”
Hennagir, 587 F.3d at 1262. Therefore, Mr. Wickware’s prior assignment to the
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relief foreman position is immaterial as to whether he could satisfy the essential
functions of that position.
ii
Furthermore, we are not persuaded by Mr. Wickware’s attempt to
demonstrate that Johns Manville did not uniformly enforce the requirement that
the relief foreman be “qualified in all lower operator levels.” Aplt.’s App. at 155.
Mr. Wickware argues that the only other relief foreman, Richard Lyons, was
neither qualified for nor able to perform all lower operator positions. Mr.
Wickware faults the district court for rejecting the affidavits of four current and
former Johns Manville employees that he contends, viewed collectively, create a
genuine dispute of material fact as to whether the relief foreman “was required to
actual[ly] work at all operator positions.” Aplt.’s Opening Br. at 33. However,
noting that “a district court’s assessments of the admissibility and probative value
of affidavits at the summary-judgment phase involve, at bottom, evidentiary
determinations,” Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1201 (10th
Cir. 2015), which we review for an abuse of discretion, id., we conclude that the
district court was well within its discretion in rejecting the affidavits.
In support of his contention that Mr. Lyons was not qualified to perform
all lower level operator positions, despite being assigned to the relief foreman
position, Mr. Wickware proffered the affidavits of Scott Henderson, Monte
Jeffries, and Christian Islas. Mr. Henderson’s stated reason for his belief that Mr.
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Lyons was unqualified to be a relief foreman was that Mr. Lyons “did not know
how to run a [coater] machine,” and was therefore not qualified to be a coater
operator. Aplt.’s App. at 373 (Aff. of Scott Henderson, dated Apr. 15, 2014).
Mr. Jeffries also testified that he believed Mr. Lyons was “not qualified to work
as the coater operator.” Id. at 375 (Aff. of Monte Jeffries, dated Apr. 21, 2014).
However, as the district court observed, Mr. Jeffries provided no factual basis for
this belief. The district court found that, in both cases, Mr. Wickware failed to
present testimony that would be admissible at trial, and we agree.
“An affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4); see Hansen v. PT Bank Negara Indonesia
(Persero), 706 F.3d 1244, 1250 (10th Cir. 2013) (“Although affidavits are entirely
proper on summary judgment, the content or substance of the evidence contained
therein must be admissible.”); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986).
Mr. Henderson’s statement provides no factual or temporal context to
support his conclusion regarding Mr. Lyons’s lack of qualifications. Similarly,
Mr. Jeffries provides no factual averments to support his contention that Mr.
Lyons lacked qualifications as a coater. The probative value of both statements is
thus so lacking that we may characterize them as bald assertions of the kind that
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courts could permissibly deem inadmissible. See Hansen, 706 F.3d at 1251
(concluding that “the district court got it right in concluding that the information
provided lacks an adequate foundation and therefore would be inadmissible,”
where “[t]he declaration is woefully short on details”); Zokari v. Gates, 561 F.3d
1076, 1089 (10th Cir. 2009) (“Although he may have had knowledge of other
discriminatory conduct, his testimony did not provide sufficient information
concerning his knowledge of such conduct for the district court to decide that he
had personal knowledge of matters relevant to Mr. Zokari’s trial.”); accord
Felkins v. City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014); see also United
States v. Brooks, 727 F.3d 1291, 1302–03 (10th Cir. 2013) (“It is axiomatic that
the probative value of evidence must be assessed in the factual context of a given
case.”).
Mr. Wickware also faults the district court for failing to consider in its
summary judgment analysis the affidavit of Mr. Islas and the deposition testimony
of Lee Glossett. The district court rejected this evidence in the context of ruling
on Mr. Wickware’s motion for reconsideration, pursuant to Federal Rule of Civil
Procedure 59(e). We review denials of such postjudgment motions for an abuse
of discretion. See, e.g., Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005)
(“The district court denied plaintiff’s postjudgment motion. On appeal, this court
reviews that ruling for abuse of discretion.”); Phelps v. Hamilton, 122 F.3d 1309,
1324 (10th Cir. 1997) (“We review a district court’s ruling on a Fed. R. Civ. P.
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59(e) motion under an abuse of discretion standard.”). However, we must
conclude that the district court did not abuse its discretion in disregarding the
affidavit of Mr. Islas and the testimony of Mr. Glossett.
To begin, Mr. Wickware did not timely identify Mr. Islas as a potential
witness, and did not ask to amend his final witness list to include Mr. Islas.
Nevertheless, on reconsideration, Mr. Wickware asserted that the court should
have considered Mr. Islas’s affidavit in ruling on summary judgment. Citing
Federal Rule of Civil Procedure 37(c)(1), the court disagreed. It noted that Mr.
Wickware “made no effort to justify his lack of disclosure or to cure it by asking
to amend his witness list before summary judgment was granted,” and that Mr.
Wickware was “simply asking the Court to consider an argument that he could
have made, but did not, before the entry of summary judgment.” Aplt.’s App. at
545.
We discern no abuse of discretion in this ruling regarding the Islas
affidavit. “[A] party must provide to the other parties and promptly file . . . the
name and, if not previously provided, the address and telephone number of each
witness.” Fed. R. Civ. P. 26(a)(3)(A)(i). Moreover, “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1); see also Vesom v. Atchison Hosp. Ass’n, 279 F. App’x
-26-
624, 631 (10th Cir. 2008) (unpublished) (“The exclusion of evidence presented
out of time is ‘automatic and mandatory’ unless the violation was either justified
or harmless.” (quoting Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.
1996))). Invoking Rule 37(c)(1), the district court properly found that Mr.
Wickware failed to provide the requisite information regarding Mr. Islas and,
because Mr. Wickware did not attempt to justify this failing or render it harmless,
the court permissibly declined to consider the Islas evidence.
As for Mr. Glossett’s deposition testimony, the district court rejected Mr.
Wickware’s characterization of the testimony as newly discovered evidence and
found that the record “suggest[ed] a lack of reasonable diligence” by Mr.
Wickware. Aplt.’s App. at 545. In this regard, Mr. Wickware did not take Mr.
Glossett’s deposition until after the discovery cutoff. And, notably, the court
observed that, though Mr. Wickware claimed not to know of Mr. Glossett’s
testimony at the time he filed his summary-judgment response brief, that “did not
prevent him from seeking leave to add it to the summary judgment record before
the Court issued its ruling” and he had “more that six months” to do so from the
date the Glossett deposition was taken. Id. Consequently, the court declined to
consider the testimony. It did not abuse its discretion in doing so.
While “new evidence previously unavailable” is a cognizable ground for
Rule 59(e) relief, see Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000), “the movant must show either that the evidence is newly discovered
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[or] if the evidence was available at the time of the decision being challenged,
that counsel made a diligent yet unsuccessful effort to discover the evidence.”
Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1153 (10th Cir.
2012) (quoting Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1523
(10th Cir. 1992)). Based on this record, we cannot conclude that the district court
abused its discretion in disregarding the Glossett deposition testimony, after
finding that it was not newly discovered and Mr. Wickware failed to exercise
reasonable diligence.
iii
In sum, viewing the facts in a light most favorable to Mr. Wickware, we
conclude that the district court did not err in determining that he failed to
demonstrate facts sufficient to raise a genuine dispute of material fact regarding
whether being able to perform all operator positions was an essential function of
the relief foreman position. Mr. Wickware acknowledged that he could not
perform all of the operator positions; thus, he could not carry out an essential
function of the relief foreman position.
c
Because Mr. Wickware could not perform an essential function of the relief
foreman position, we next must determine whether any reasonable
accommodation would have enabled him to perform that function. See Wells, 228
F.3d at 1145. Mr. Wickware bore the initial burden of initiating an “interactive
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process” with Johns Manville and proposing an accommodation and showing that
the accommodation was objectively reasonable. Id.; see Woodman v. Runyon, 132
F.3d 1330, 1344 (10th Cir. 1997) (“It is enough for the plaintiff to suggest the
existence of a plausible accommodation, the costs of which, facially, do not
clearly exceed its benefits.” (quoting Borkowski v. Valley Cent. Sch. Dist., 63
F.3d 131, 138 (2d Cir. 1995))); Smith v. Midland Brake, Inc., 180 F.3d 1154,
1171 (10th Cir. 1999) (“In general, the interactive process must ordinarily begin
with the employee.”). If the plaintiff can demonstrate a facially reasonable
accommodation, then the burden shifts to the employer to show its inability to
provide the requested accommodation. See Mason, 357 F.3d at 1122. Mr.
Wickware argues that he could satisfy the job requirements of a relief foreman if
Johns Manville “allow[ed] him to assign someone else to an open slot for a
position for which he was allegedly not qualified.” Aplt.’s Opening Br. at 40.
Because we conclude that the accommodation Mr. Wickware sought is not
facially reasonable, we need not consider whether Johns Manville was able to
provide it.
“The idea of accommodation is to enable an employee to perform the
essential functions of his job; an employer is not required to accommodate a
disabled worker by modifying or eliminating an essential function of the job.”
Mathews v. Denver Post, 263 F.3d 1164, 1168–69 (10th Cir. 2001). Reasonable
accommodations may include “job restructuring, part-time or modified work
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schedules, reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or interpreters,
and other similar accommodations for individuals with disabilities.” 42 U.S.C.
§ 12111(9)(B).
Under this standard, Mr. Wickware’s proposed accommodation is not
facially reasonable. The single proposal he argues for on appeal is reassigning
any operator tasks that he cannot perform to other operators. The ability to
perform all of the operator tasks, however, was an essential function of the
position. Mr. Wickware’s proposal, therefore, is tantamount to removing an
essential job function entirely, and we have held that such proposals are
unreasonable. See, e.g., Hennagir, 587 F.3d at 1264; see also Allmond v. Akal
Sec., Inc., 558 F.3d 1312, 1318 (11th Cir. 2009) (“[Plaintiff’s] only suggestion is
to remove the [essential job function] entirely. That proposal is not reasonable: it
destroys the very standard we have just upheld as a legitimate business
necessity.”). Therefore, we conclude that Mr. Wickware has failed to satisfy his
initial burden of proposing an accommodation and showing that the
accommodation was facially reasonable.
d
We therefore conclude that the district court did not err in determining that
Mr. Wickware failed to demonstrate a genuine dispute of material fact regarding
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whether he was qualified to perform the essential functions of the relief foreman
position with or without a reasonable accommodation. As a consequence, Mr.
Wickware failed to establish a prima facie case of discrimination under the ADA
and the district court properly entered judgment on this claim in favor of Johns
Manville.
B
Mr. Wickware also contends that Johns Manville retaliated against him
after he filed a charge with the EEOC. However, as the district court properly
found, Mr. Wickware did not timely file this claim before the EEOC; therefore,
his retaliation claim is barred due to his failure to exhaust his administrative
remedies.
More specifically, the district court here ruled that it “lack[ed] subject
matter jurisdiction to decide the merits of Plaintiff’s ADA claim of retaliation”
because he did not exhaust the claim before the EEOC. Aplt.’s App. at 456.
Irrespective of whether the failure to exhaust implicates subject-matter
jurisdiction, 4 it is beyond peradventure that “[e]xhaustion still serves the
4
We acknowledge that we have previously held that “[i]n the Tenth
Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to
suit.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007); accord Shikles
v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005); see also
Apsley v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012) (“Under both Title
VII and the ADA, exhaustion of administrative remedies is a prerequisite to
suit.”). However, subsequently, in Gad v. Kansas State University, 787 F.3d 1032
(10th Cir. 2015), in holding that the EEOC’S “verification requirement”—that is,
(continued...)
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important purposes of ‘protecting employers by giving them notice of the
discrimination claims being brought against them and providing the
EEOC . . . with an opportunity to conciliate the claims.’” Gad v. Kan. State
Univ., 787 F.3d 1032, 1040 (10th Cir. 2015) (alteration in original) (quoting
Green v. Donahoe, 760 F.3d 1135, 1140 (10th Cir. 2014)). Consequently, even if
exhaustion is not jurisdictional, it is a condition precedent to suit. See id. at 1034
4
(...continued)
the EEOC’s requirement that charges be verified (i.e., notarized or signed under
penalty of perjury)—was “not jurisdictional,” id. at 1036, we analyzed recent
Supreme Court precedent and “reexamined the issue of whether exhaustion of
administrative remedies is jurisdictional,” Hung Thai Pham v. James, 630 F.
App’x 735, 737 (10th Cir. 2015). Gad raises the question of whether the district
court’s jurisdictional rationale here remains legally viable. See Martin v. Mt. St.
Mary’s Univ. Online, 620 F. App’x 661, 662 (10th Cir. 2015) (referring to Gad
when stating that “[a] recent case on an analogous issue leads us to question the
district court’s [jurisdictional] rationale”); see also Arabalo v. City of Denver,
625 F. App’x 851, 859–60 (10th Cir. 2015) (noting that in Gad “we called into
question some of our circuit’s earlier decisions concluding we lacked
subject-matter jurisdiction for other [i.e., non-verification] failures to meet Title
VII’s requirements”). However, we need not resolve that question. As noted
immediately infra in text, exhaustion of administrative remedies is still an
important condition precedent to a lawsuit under the ADA and, because Johns
Manville has never waived or forfeited its exhaustion defense, Mr. Wickware
must still establish that he exhausted his retaliation claim. See McQueen ex rel.
McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 873 (10th Cir. 2007)
(“The [jurisdictional vel non] characterization is important, however, only when
the defendant has waived or forfeited the issue: If exhaustion is a jurisdictional
requirement, the district court must always dismiss if there has been a failure to
exhaust. If exhaustion is not jurisdictional, the court must dismiss only if the
issue has been properly presented for decision.”); see also Hung Thai Pham, 630
F. App’x at 738 (“We need not decide whether the failure to cooperate in good
faith with the EEOC results in a lack of jurisdiction, however, because the
Secretary has not waived or forfeited the issue.”); Arabalo, 625 F. App’x at 860
(recognizing that, irrespective of the resolution of the jurisdictional question,
exhaustion is “a condition precedent to suit”).
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(noting that the verification requirement at issue there was a “non-jurisdictional
condition precedent to suit”); id. at 1040 (“Holding verification non-jurisdictional
does not imply any diminution in the need for plaintiffs to comply with this Title
VII requirement.”).
“[A]dministrative remedies generally must be exhausted as to each discrete
instance of discrimination or retaliation.” Apsley v. Boeing Co., 691 F.3d 1184,
1210 (10th Cir. 2012); accord Foster v. Ruhrpumpen, Inc., 365 F.3d 1191,
1194–95 (10th Cir. 2004). Among other things, a charge must be “a written
statement sufficiently precise to identify the parties, and to describe generally the
action or practices complained of.” 29 C.F.R. § 1601.12(b).
Construing Mr. Wickware’s filings before the EEOC liberally, Jones v.
U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007), no allegation within them
would have put the EEOC or Johns Manville on notice that he was alleging that
Johns Manville retaliated against him because of his EEOC charge (i.e., the
purported protected activity). In the original charge, Mr. Wickware alleged that
he was demoted because of his disability, but he made no mention of retaliation
nor did he give a description of conduct resembling retaliation. Accordingly, we
must consider whether Mr. Wickware timely filed a new EEOC claim or amended
his original filing to allege incidents of retaliation. See Eisenhour v. Weber Cty.,
744 F.3d 1220, 1227 (10th Cir. 2014) (requiring that “the plaintiff file[] a new
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EEOC claim or otherwise amend[] her original EEOC claim to add the new
incidents”); see 29 C.F.R. § 1601.12(b).
The EEOC’s regulations allow for a complainant through amendments to
his original charge to “alleg[e] additional acts . . . related to or growing out of the
subject matter of the original charge,” and those amendments “will relate back to
the date the [original] charge was first received.” 29 C.F.R. § 1601.12(b). “We
have construed the ‘reasonably related’ exception to include most retaliatory acts
subsequent to an EEOC filing.” Simms v. Okla. ex rel. Dep’t of Mental Health &
Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir. 1999), abrogated on
other grounds by Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003). However,
Mr. Wickware was required to “file[ ] a new EEOC claim or otherwise
amend[ ] h[is] original EEOC claim.” Eisenhour, 744 F.3d at 1227.
Therefore, the “reasonably related” exception does not advance Mr.
Wickware’s cause—viz., we see no indication from the record that Mr. Wickware
attempted to amend his charge or file an additional charge alleging retaliation in a
timely fashion. To be sure, on January 17, 2013, the EEOC investigator provided
Mr. Wickware with a ten-day window to file an affidavit or statement to the effect
that Johns Manville had retaliated against him. But Mr. Wickware did not file an
amended charge within this authorized temporal window; he waited until January
31, 2013 to file the amended charge. Though Mr. Wickware insists that January
31 was “the deadline given him by the EEOC if he wanted to include his
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retaliation claim in his charge,” Aplt.’s Opening Br. at 22, there is no evidence in
the record to support this assertion and thus it cannot generate a genuine dispute
of fact.
January 31 was significant because—in addition to being the date Mr.
Wickware tardily filed his amended charge—it is the day the EEOC dismissed his
original charge and issued its notice of right to sue relative to the original charge.
Mr. Wickware argues that he “should be able to rely upon the EEOC’s issuance of
the right to sue letter [relative to his amended charge], although it did not come
180 days after filing.” Id. at 46. In other words, Mr. Wickware reasons that,
even though the typical 180-day investigation period had not lapsed on January 31
with respect to the retaliation claim (embodied in his amended charge) when the
EEOC issued its notice of right to sue, he should be able to rely on that notice for
filing a federal lawsuit on his retaliation claim. In this regard, Mr. Wickware
relies on authorities for the proposition that “such [a] premature issuance [of a
notice of right to sue] does not preclude the immediate filing of a federal
lawsuit.” Id. However, Mr. Wickware’s argument is specious and fundamentally
misguided. The issue is not whether the EEOC’s January 31 notice was
premature relative to his amended charge including the retaliation claim; instead,
the issue is whether that January 31 notice covered (i.e., related to) his amended
charge at all. And the record is clear that it did not. Mr. Wickware had ten days
to file his amended charge, including his retaliation claim, and he missed the
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deadline. Therefore, the amended charge was inconsequential. And when the
EEOC issued its notice of the right to sue on January 31, it only related to his
original charge, which did not include a retaliation claim.
In sum, we conclude that Mr. Wickware was obligated to exhaust his
administrative remedies before pursuing his retaliation claim in district court, and
the record offers not even a hint that he did so. Consequently, Mr. Wickware
cannot obtain relief in federal court on his retaliation claim because he did not
exhaust his administrative remedies. Therefore, the district court did not err in
dismissing Mr. Wickware’s retaliation claim.
C
Mr. Wickware also argues that the district court erroneously granted
summary judgment to Johns Manville before ruling on his pending motion to
compel. Mr. Wickware filed his motion after Johns Manville moved for summary
judgment; however, in his motion, Mr. Wickware did not seek protection under
Federal Rule of Civil Procedure 56(d). See Fed. R. Civ. P. 56(d) (“If a
nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may: . . . (2) allow time
to obtain affidavits or declarations or to take discovery.”). In this regard, we see
no abuse of discretion in the district court’s decision to grant summary judgment
before considering the motion to compel.
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Our caselaw is clear and dispositive that “[a]lthough the Supreme Court has
held that, under [Rule 56(d)], summary judgment [should] be refused where the
nonmoving party has not had the opportunity to discover information that is
essential to his opposition, this protection arises only if the nonmoving party files
an affidavit explaining why he or she cannot present facts to oppose the motion.”
Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1536 (10th Cir.
1994) (emphasis added) (quoting Dreiling v. Peugeot Motors of Am., Inc., 850
F.2d 1373, 1376 (10th Cir. 1988)); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 n.5 (1986). Put another way, “[w]here a party opposing summary
judgment . . . fails to take advantage of the shelter provided by [Rule 56(d)] by
filing an affidavit, there is no abuse of discretion in granting summary judgment
if it is otherwise appropriate.” Campfield v. State Farm Mut. Auto Ins. Co., 532
F.3d 1111, 1125 (10th Cir. 2008) (quoting Pasternak v. Lear Petroleum Expl.,
Inc., 790 F.2d 828, 832–33 (10th Cir. 1986)); accord McKissick v. Yuen, 618 F.3d
1177, 1190 (10th Cir. 2010).
In the instant case, Mr. Wickware’s motion to compel failed to mention
Rule 56(d) on its face, which is a problem in itself. See Jones v. Secord, 684 F.3d
1, 6 (1st Cir. 2012) (“But courts, like the deity, tend to help those who help
themselves, and Rule 56(d) is not self-executing. A party must invoke it.”).
Moreover, we can glean only two instances from the record where Mr. Wickware
suggested his motion was intended to aid him in gathering facts essential to
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justify his opposition to Johns Manville’s summary-judgment motion. In the first
instance, Mr. Wickware attached an affidavit of his attorney to his motion to
compel, stating that “it is vital that Wickware be able to depose Defendant’s key
witnesses regarding the meetings that took place . . . in which Wickware’s
employment situation was discussed.” Aplt.’s App. at 264 (Aff. of Scott F.
Brockman, dated Apr. 1, 2014). In the second instance, Mr. Wickware stated in
his response to Johns Manville’s motion for summary judgment that he was
“unable to fully respond because Defendant’s witnesses refused to answer certain
questions about [Johns Manville’s] decision-making process.” Id. at 270 n.1
(Resp. to Def’s Mot. for Summ. J., dated Apr. 21, 2014).
These suggestions are not enough. See Price ex rel. Price v. W. Res., Inc.,
232 F.3d 779, 783 (10th Cir. 2000) (“However, Rule 56(f) [i.e., now Rule 56(d)]
does not operate automatically. Its protections must be invoked and can be
applied only if a party satisfies certain requirements.”); id. (deeming the
requirements not satisfied and noting that, “[i]nstead of explaining what facts they
want to discover, why they have not yet discovered them, and how additional time
would help them rebut Western’s allegations, Appellants state only that Western
is in exclusive control of relevant information”); see also Pina v. Children’s
Place, 740 F.3d 785, 795 (1st Cir. 2014) (“[Movant’s] asserted desire to ‘explore’
is perhaps more accurately characterized as a desire to ‘fish,’ and in either case, it
falls well short of establishing entitlement to Rule 56(d) relief.”); id. (“Notably
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lacking from [the movant’s] speculation as to [a witness’s] veracity is any
plausible basis for the court to conclude that specified, material facts probably
existed”); cf. Hackworth v. Progressive Cas. Ins., Co., 468 F.3d 722, 732 (10th
Cir. 2006) (concluding that plaintiff’s “statements, made in her response brief to
[defendant’s] motion for summary judgment to the effect that” she had not had
time to review relevant discovery “are obviously insufficient”).
In any event, critically, in the context of the second instance, Mr.
Wickware conceded that he “believes there is sufficient evidence to deny
summary judgment.” Aplt.’s App. at 270 n.1. In other words, Mr. Wickware
conceded that the district court had before it all the facts essential to deciding
whether to grant or deny summary judgment. Therefore, we can find no
indication from the record that Mr. Wickware took advantage of the shelter
provided by Rule 56(d). Consequently, we see no abuse of discretion in the
district court’s decision to grant summary judgment before ruling on Mr.
Wickware’s motion to compel.
D
Finally, Mr. Wickware contends that the district court erred in declining to
consider his untimely objection to Johns Manville’s bill of costs. He urges us to
recognize that courts “should be concerned about deciding motions based upon
the merits of those motions, and not on technicalities.” Aplt.’s Opening Br. at 65.
However, he does not provide legal support to buttress his assertion that untimely
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filings, even under the court’s local rules, as here, must be considered before the
court makes a dispositive ruling. Although, as the district court suggested, he
could have advanced a theory of excusable neglect, see Fed. R. Civ. P. 6(b)(1)
(“[T]he court may, for good cause, extend the time: . . . (B) on [a] motion made
after the time has expired if the party failed to act because of excusable
neglect.”), he has never done so. Without an argument to the contrary, we would
be hard-pressed to conclude that the district court abused its discretion in
applying its local rules and declining to consider Mr. Wickware’s untimely
objection. See Amundsen v. Jones, 533 F.3d 1192, 1197 (10th Cir. 2008) (“We
review a district court’s application of its local rules for an abuse of discretion.”).
III
For the foregoing reasons, we AFFIRM the district court’s judgment,
specifically, its grant of summary judgment to Johns Manville with respect to Mr.
Wickware’s discrimination claim, its dismissal of Mr. Wickware’s retaliation
claim on lack-of-exhaustion grounds, and its grant of John’s Manville’s motion to
strike Mr. Wickware’s objection to costs.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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