Tesone v. Empire Marketing Strategies

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 8, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JONELLA TESONE,
Plaintiff - Appellant,
v. No. 19-1026
EMPIRE MARKETING STRATEGIES,
Defendant - Appellee.
------------------------------
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:17-CV-02101-MEH-KLM)
_________________________________
Joseph A. Whitcomb, (LaQunya L. Baker, with him on the briefs), Whitcomb, Selinsky,
McAuliffe, PC., Denver, Colorado, for Plaintiff - Appellant.
John R. Mann, Gordon & Rees LLP, Denver, Colorado, for Defendant - Appellee.
James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General
Counsel, Elizabeth E. Theran, Assistant General Counsel, and Julie L. Gantz, Attorney,
Equal Employment Opportunity Commission, Office of General Counsel, Washington,
D.C., filed an amicus curiae brief in support of Appellant.
_________________________________
Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Jonella Tesone claimed that Empire Marketing Strategies (“EMS”) discriminated
against her under the Americans with Disabilities Act (“ADA”) when it terminated her
employment. The district court granted summary judgment to EMS.
On appeal, Ms. Tesone alleges the district court erred when it denied her motions
to (1) amend the scheduling order to extend the time for her to designate an expert and
(2) amend her complaint. We disagree and affirm the denials. She also contends the
court erred when it (3) granted summary judgment to EMS. We agree and remand for
further consideration. We exercise appellate jurisdiction under 28 U.S.C. § 1291.1First, Ms. Tesone filed her motion to amend the scheduling order on November 1,
2018—nine months after the February 2018 expert disclosure deadline, seven months
after indicating her intent to file, and three months after EMS’s motion for summary
judgment. The district court did not abuse its discretion when it found Ms. Tesone had
not shown “good cause” to extend the scheduling order as required under Federal Rule of
Civil Procedure 16(b)(4). See Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771
F.3d 1230, 1241 (10th Cir. 2014).
Second, Ms. Tesone filed her motion to amend her complaint on November 7,
2018—nearly ten months after the January 2018 deadline for amending pleadings. The
1
The parties agreed to have all proceedings in the case decided by a magistrate
judge. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. We will refer to the magistrate
judge’s court as the “district court.”
2
district court did not abuse its discretion when it found Ms. Tesone had not shown “good
cause” under Rule 16(b)(4) as to why she should be allowed to amend after the
scheduling order deadline.
Third, the district court erred on summary judgment. The court said an expert
must be used to prove a disability in discrimination cases brought under the ADA.2 It
granted summary judgment because Ms. Tesone did not have a medical expert witness to
prove she suffered from lower back pain that substantially interfered with her ability to
lift. We disagree that the ADA always requires an expert.
I. BACKGROUND
A. Factual Background
In 2012, EMS hired Ms. Tesone as a Product Retail Sales Merchandiser. Her
job duties included changing or “resetting” retail displays in grocery stores. When
she was hired, Ms. Tesone informed EMS that she had back problems and could not
lift more than 15 pounds.3
2
As discussed below, in 2008, Congress amended the ADA by passing the
ADA Amendments Act (“ADAAA”). In this opinion, we refer to the amended Act
simply as “the ADA.”
3
When asked at her deposition whether she presented EMS with
“documentation related to [her] back injury,” Ms. Tesone said that “when [she] was
hired,” EMS supervisor Julie Reynolds showed her a form that referred to “Lifting 50
pounds or more.” Aplt. App. at 507. Ms. Tesone testified “[Ms. Reynolds] crossed
out the ‘50’ and put ‘15,’ and . . . was well aware of [Ms. Tesone’s] restrictions to
not lift more than 15 pounds spatially.” Id.3
In October 2016, Ms. Tesone was assigned to complete a reset in Gunnison,
Colorado. Because she anticipated the reset would require long hours, she
prearranged to stay in Gunnison for an additional night.4 She did not seek EMS’s
approval for this extension, and EMS did not approve the stay.
Shortly after the trip, EMS met with Ms. Tesone to discuss the unapproved
October hotel stay and “general performance issues.” Aplt. App. at 19; see also id. at
190. During this meeting, Ms. Tesone referred to her “lifting limitation.” Id. at 190.
EMS requested a doctor’s note documenting the limitation. Ms. Tesone did not
immediately provide a note. EMS renewed its request at least four times. Four
months after the meeting, Ms. Tesone provided a letter from Dr. Brian Manjarres.
She had not met Dr. Manjarres or consulted with him about her health before
obtaining the note. The letter stated Ms. Tesone “has certain limitations related to
muscle weakness” and “chronic lower back pain.” Id. at 166. It “recommend[ed] the
following accommodations: 1) No lifting over head 2) Can not [sic] lift spatially in
front of her more than 15 pounds.” Id.Between December 2016 and February 2017, EMS spoke with Ms. Tesone
multiple times about various workplace issues, including “her communication with
coworkers.” Id. at 19-20; see also id. at 191. On February 27, 2017, EMS
4
EMS maintains this was “a terminable offense.” Aplt. App. at 19. Ms.
Tesone argues the extended stay was “required to protect the safety of the employee
that she was training” and was “not a terminal offense” because she did not
“misrepresent[] the amount of time needed to complete the reset.” Id. at 190.
4
terminated Ms. Tesone’s employment, citing “consistent violations of company
policies.” Id. at 192.5
Ms. Tesone filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”). The charging form listed ten categories of
discrimination and asked her to “check [the] appropriate box(es)” to indicate what
form of discrimination she had experienced. Ms. Tesone checked only the
“disability” box and left the “retaliation” box blank. She also provided a statement
describing “the particulars.” Id. at 434. It read:
I began working for Respondent [EMS] in 2010.[6] I have
a disability, as defined within the meaning of the relevant
statute, of which Respondent was aware. Throughout my
employment I had a reasonable accommodation due to my
disability, a lifting restriction. During the relevant time
period Ms. Kelly Bruce[] began working for Respondent in
my chain of command. Subsequent to this the
terms/conditions of my employment changed. For
instance, but not limited to, I was no longer allowed to
train employees, I was offered different work, and my
accommodation was not honored. Additionally, an
expected promotion, to Lead, was denied and given to an
employee outside my protected class with less seniority
and experience than me. On or about February 28, 2017, I
was discharged.
5
Ms. Tesone does not contest that EMS cited policy violations as the basis for
the termination, but she argues “[EMS] fired [her] in an attempt to avoid any effort
imposed on [EMS] by [her] ADA recognized disability.” Aplt. App. at 192. She
suggests EMS’s “baseless claims of policy violations” are mere “pretext.” Id.6
This date appears to be erroneous. The record indicates, and the parties
agree, that Ms. Tesone was hired in 2012. See Aplt. App. at 18, 189.
5
I believe that I have been discriminated against on the
basis of a disability in violation of the Americans with
Disabilities Act of 1990, as amended.
Id.In June 2017, the EEOC closed Ms. Tesone’s file and notified her of her right
to sue.7
B. Procedural Background
1. Complaint
On August 31, 2017, Ms. Tesone filed a complaint against EMS and two of its
employees in the United States District Court for the District of Colorado. She
asserted three claims: (1) disability discrimination under the ADA (against EMS),
(2) interference with contract and prospective business advantage (against the EMS
employees), and (3) intentional infliction of emotional distress (“IIED”) (against the
EMS employees).
2. Scheduling Order and Dismissals
The district court’s November 21, 2017 scheduling order set deadlines of
(1) January 22, 2018, to amend pleadings; (2) May 21, 2018, to complete discovery;
and (3) February 5, 2018, to disclose expert witnesses. The court dismissed the IIED
claim against both employee defendants and dismissed the tortious interference claim
against one employee defendant. The parties then stipulated to dismissal of the
7
The notice stated the EEOC was closing its file because “[b]ased upon its
investigation, the EEOC is unable to conclude that the information obtained
establishes violations of the statutes.” Aplt. App. at 438.
6
tortious interference claim against the second employee defendant, leaving only the
ADA claim against EMS.
3. Motions for Summary Judgment, to Enlarge Time, and to Amend
The parties began deposing witnesses on March 20, 2018. During depositions,
EMS’s counsel told Ms. Tesone’s attorney that without expert evidence regarding her
disability, Ms. Tesone’s ADA claim must fail. The next day, Ms. Tesone’s attorney
emailed EMS’s counsel, stating, “I expect to file a motion for the enlargement of
time to appoint and disclose experts.” Supp. App. at 68.
On July 20, 2018, EMS moved for summary judgment, arguing in part that Ms.
Tesone could not establish a prima facie case of discrimination because she
“offer[ed] no expert report or other admissible evidence establishing that her
impairment caused limitations to perform a major life activity.” Aplt. App. at 23.
On November 1, 2018, the parties had a settlement conference before a magistrate
judge,8 who informed Ms. Tesone that she could not prevail without an expert
witness. The same day, Ms. Tesone filed a motion for an enlargement of time to
designate an expert witness. Six days later, she also filed a motion to amend her
complaint to add ADA claims alleging (1) discrimination on the basis of a perceived
disability and (2) retaliation.
8
The parties appeared before this judge for the purposes of the settlement
conference only. A different magistrate judge ruled on EMS’s summary judgment
motion.
7
4. District Court Rulings
At the final pretrial conference on November 8, 2018, EMS’s attorney stated
that “[t]he motion to amend the complaint . . . wreaks [sic] of an attempt to save the
case . . . at the 11th hour.” Id. at 525. The district court responded, “Well, of course,
it doesn’t wreak of it. . . . [I]t is that.” Id. The court then denied Ms. Tesone’s
motion for enlargement of time, reasoning: “I think I’m probably overly generous in
extending deadlines . . . because I like to protect a plaintiff’s rights, but I don’t have
any choice here. . . . I can’t find a legal basis to grant [it], so therefore . . . [the]
motion for extension of time to designate an expert witness, is denied.” Id. at 534.9
On January 17, 2019, the district court issued an order denying Ms. Tesone’s
motion to amend. The order briefly explained the court’s basis for denying the
motion to extend the expert disclosure deadline, stating, “I denied the motions . . .
concluding that [Ms. Tesone] could not demonstrate the ‘good cause’ necessary to
amend the Scheduling Order under Rule 16(b)(4).” Id. at 551. It then explained that
“there is no material difference in the delay to bring these claims and the failure to
designate an expert witness.” Id. at 552. The court noted “no reason why [Ms.
Tesone] could not have asserted her claims in the Complaint.” Id. at 554. It also
concluded that Ms. Tesone’s proposed retaliation amendment would be futile because
Ms. Tesone did not exhaust her administrative remedies by filing a retaliation claim
9
The court did not rule from the bench on the motion to amend or the motion
for summary judgment.
8
with the EEOC. It thus denied the motion to amend, finding that Ms. Tesone “[had]
not shown good cause to modify the Scheduling Order under Rule 16(b)(4).” Id. at
555.
The same day, the court also granted EMS’s motion for summary judgment. It
noted that Ms. Tesone bore the burden “to establish a prima facie case of
discrimination,” id. at 560, and stated that she “will not be able to” do so, id. at 557.
It determined she had not carried this burden because she “presented no expert
medical evidence that any of her major life activities have been substantially limited
by her alleged disability.” Id. at 561 (quotations omitted). The court noted that Ms.
Tesone provided a doctor’s note describing her disability but said “this note [was] not
accompanied with an affidavit and therefore [was] inadmissible hearsay.” Id. at 562.
It also cited Felkins v. City of Lakewood, 774 F.3d 647 (10th Cir. 2014), in which a
plaintiff who failed to provide expert medical evidence was unable to establish that
she had a disability as defined in the ADA. The court concluded that “[Ms.
Tesone’s] case suffers from the same deficiency as the plaintiff’s case in Felkins”
and thus found “summary judgment [was] appropriate.” Aplt. App. at 562.
The district court entered its final judgment on January 17, 2019, and Ms.
Tesone timely appealed.
II. DISCUSSION
In the following discussion of the three issues that Ms. Tesone raises on
appeal, we affirm the district court’s denial of her motions to (A) enlarge the time to
designate an expert witness and (B) amend her complaint. We reverse (C) the district
9
court’s grant of EMS’s motion for summary judgment and remand for further
proceedings on that issue.
A. Motion to Extend Time to Disclose an Expert
1. Standard of Review
“We review a court’s refusal to enter a new scheduling order for abuse of
discretion.” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir. 2011); see
also Burks v. Okla. Publ’g Co., 81 F.3d 975, 978 (10th Cir. 1996) (same).
2. Legal Background
Federal Rule of Civil Procedure 16(b)(4) provides that scheduling orders “may
be modified only for good cause and with the judge’s consent.” “In practice, this
standard requires the movant to show the scheduling deadlines cannot be met despite
the movant’s diligent efforts.” Gorsuch, 771 F.3d at 1241 (quotations and alterations
omitted); see also Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.
2000) (“[A] finding of ‘good cause’ depends on the diligence of the moving party.”).
“Good cause” also “obligates the moving party to provide an adequate explanation
for any delay.” Husky Ventures, Inc. v. B55 Invs., Ltd., 911 F.3d 1000, 1020 (10th
Cir. 2018) (quotations omitted).
“[T]rial courts have considerable discretion in determining what kind of
showing satisfies this . . . good cause standard.” 3 James Wm. Moore, Moore’s
Federal Practice - Civil § 16.14[1][b] (3d ed. 2019). In making this determination,
“the factor on which courts are most likely to focus . . . is the relative diligence of the
lawyer . . . who seek[s] the change.” Id. “‘[G]ood cause’ is likely to be found when
10
the moving party has been generally diligent, the need for more time was neither
foreseeable nor its fault, and refusing to grant the continuance would create a
substantial risk of unfairness to that party.” Id.
“Another relevant consideration is possible prejudice to the party opposing the
modification.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002); see also
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)
(“Although the existence or degree of prejudice to the party opposing the
modification might supply additional reasons to deny a motion, the focus of the
inquiry is upon the moving party’s reasons for seeking modification.”).
“[C]arelessness is not compatible with a finding of diligence and offers no
reason for a grant of relief.” Johnson, 975 F.2d at 609. “Mere failure on the part of
counsel to proceed promptly with the normal processes of discovery and trial
preparation” also “should not be considered good cause.” Dag Enters., Inc. v. Exxon
Mobil Corp., 226 F.R.D. 95, 105 (D.D.C. 2005) (quotations omitted).
3. Analysis
Ms. Tesone has not made the “good cause” showing required under Rule
16(b)(4). She failed to “show the scheduling deadlines [could not] be met despite
[her] diligent efforts.” Gorsuch, 771 F.3d at 1241 (quotations omitted). The district
court thus did not abuse its discretion in denying Ms. Tesone’s motion to enlarge
time to designate an expert witness.
The district court set a February 5, 2018 deadline for disclosure of expert
witnesses. Ms. Tesone did not disclose an expert by that date. Although on March
11
20, 2018, she expressed her intent “to file a motion,” she did not do so until
November 1, 2018—nine months after the February 2018 expert disclosure deadline,
seven months after indicating her intent to file, and three months after EMS’s motion
for summary judgment.
Ms. Tesone provides no “adequate explanation” for this delay. Husky
Ventures, 911 F.3d at 1020. She also does not show that she made “diligent efforts”
to meet the disclosure deadline. Gorsuch, 771 F.3d at 1241. Rather, the record
shows Ms. Tesone missed the initial deadline, expressed an intent to file a motion to
extend time, and then inexplicably waited for seven months to file her motion. Her
lack of “diligent efforts,” id., and unjustified “failure . . . to proceed promptly
with . . . trial preparation,” Dag Enters., 226 F.R.D at 105, do not constitute good
cause.
Because Ms. Tesone has not shown that she made diligent efforts to meet the
expert disclosure deadline and because she provides no explanation for her belated
motion, she has not demonstrated the “good cause” necessary to modify a scheduling
order under Rule 16(b)(4). The district court did not abuse its discretion in denying
her motion to extend time. We affirm its ruling.
B. Motion to Amend Complaint
The district court denied Ms. Tesone’s motion to amend because she failed to meet
the requirements under Federal Rules of Civil Procedure 15(a) and 16(b)(4). We affirm
based on Ms. Tesone’s failure to satisfy Rule 16(b)(4).
12
Standard of Review
“We review a denial of leave to amend a complaint for abuse of discretion.”
SCO Grp., Inc. v. Int’l Bus. Machs. Corp., 879 F.3d 1062, 1085 (10th Cir. 2018); see
also Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009). “A district court abuses
its discretion if its decision is arbitrary, capricious, whimsical, or manifestly
unreasonable.” Bylin, 568 F.3d at 1229 (quotations omitted).
Legal Background
As discussed above, Federal Rule of Civil Procedure 16(b)(4) provides that
“[a] schedule may be modified only for good cause and with the judge’s consent.”
Rule 15(a)(2) states that “[t]he court should freely give leave [to amend pleadings]
when justice so requires.” A party seeking leave to amend after a scheduling order
deadline must satisfy both the Rule 16(b) and Rule 15(a) standards. Birch v. Polaris
Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (“After a scheduling order
deadline, a party seeking leave to amend must demonstrate (1) good cause for
seeking modification under Fed. R. Civ. P. 16(b)(4) and (2) satisfaction of the Rule
15(a) standard.” (quotations omitted)).
“If [the movant] fail[s] to satisfy either factor—(1) good cause or (2) Rule
15(a)—the district court [does] not abuse its discretion in denying [her] motion for
leave to amend.” Gorsuch, 771 F.3d at 1241. Thus, “if [the movant] fail[s] to show
good cause under Rule 16(b), there is no need for the Court to move on to the second
step of the analysis, i.e., whether [the movant] [has] satisfied the requirements of
Rule 15(a).” Carriker v. City & Cty. of Denver, No. 12-cv-02365-WJM-KLM, 2013
13
WL 2147542, at *2 (D. Colo. May 16, 2013) (unpublished); see also Birch, 812 F.3d
at 1249 (finding “no need to consider whether Appellants satisfied Rule 15” where
the appellants “cannot establish ‘good cause’ under Rule 16”); Gorsuch, 771 F.3d at
1242 (declining to reach Rule 15(a) issue where movants could not show good cause
to amend their pleadings under Rule 16(b)).
The Rule 16(b)(4) analysis is the same for a motion for leave to amend as for a
motion to enlarge time. Again, “the movant [must] show the scheduling deadlines cannot
be met despite the movant’s diligent efforts.” Birch, 812 F.3d at 1247 (quotations and
alterations omitted); see also Gorsuch, 771 F.3d at 1240. “Rule 16’s good cause
requirement may be satisfied, for example, if a plaintiff learns new information through
discovery or if the underlying law has changed.” Birch, 812 F.3d at 1247 (quoting
Gorsuch, 771 F.3d at 1240). “If the plaintiff knew of the underlying conduct but simply
failed to raise tort claims, however, the claims are barred.” Id.
Analysis
Ms. Tesone sought leave to amend her complaint to add claims for retaliation
and discrimination based on a perceived disability. She filed her motion on
November 7, 2018—nearly ten months after the court’s January 22, 2018 amendment
deadline. At district court, she attributed this delay to her attorney’s “lack of
experience and knowledge at the beginning of the litigation.” Aplt. App. at 471 (Ms.
Tesone’s Reply to EMS’s Response to the Motion for Leave to Amend). She also
argued that her proposed amendments were based on new information—namely,
deposition testimony that EMS “discussed firing Ms. Tesone . . . only after she made
14
an oral request for accommodations.” Id. at 470. The district court found these
explanations unpersuasive, stating, “I see no reason why [Ms. Tesone] could not have
asserted her claims in the Complaint.” Id. at 554.
The district court did not abuse its discretion in rejecting Ms. Tesone’s
explanations. Although Ms. Tesone insists “it wasn’t until the final deposition,
which occurred almost a month after the original discovery deadline, that [she]
gathered additional evidence to support a claim for retaliation,” Aplt. Br. at 23-24,
her own briefing admitted that “the facts giving rise to her [proposed] retaliation
claim and perception claim were included in her original complaint,” Aplt. App. at
472 (Ms. Tesone’s Reply to EMS’s Response to the Motion for Leave to Amend)
(emphasis added). This admission undermines her argument that she lacked evidence
to support a retaliation claim until after the amendment deadline.
Ms. Tesone also argues “she sought an amendment to add [a perceived
disability claim] after the district court magistrate assigned to mediate this case told
her counsel that [the disability claim], as pled, would absolutely fail.” Aplt. Br. at
27. But she also has admitted that EMS informed her as early as March 2018 that her
disability claim could not succeed without an expert. See Aplt. App. at 526-27. She
could have sought leave to add a perceived disability claim when she first learned of
this deficiency. She offers no explanation for why she waited until November to do
so.
In short, the record shows—and Ms. Tesone admits—that she “was aware of
the facts on which the amendment was based for some time prior to the filing of the
15
motion to amend.” Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir.
1987). The record also shows—and Ms. Tesone admits—that she knew she might
need to add a perceived disability claim as early as March 2018. Despite this, she did
not move to amend her pleadings until November. She provides no “adequate
explanation[s]” for this delay, Husky Ventures, 911 F.3d at 1020, and does not “show
the scheduling deadlines [could not] be met despite [her] diligent efforts,” Gorsuch,
771 F.3d at 1241 (quotations and alterations omitted).
We affirm the denial of Ms. Tesone’s motion to amend because the district
court did not abuse its discretion in finding she “[did] not show[] good cause to
modify the Scheduling Order under Rule 16(b)(4).” Aplt. App. at 555.
C. Summary Judgment
Ms. Tesone argues that she was not required to establish her disability through
expert medical evidence and that her failure to provide an expert witness did not
entitle EMS to summary judgment. EMS insists we should not address this argument
because Ms. Tesone has raised it for the first time on appeal. We disagree. The
general rule that an appellant has forfeited an issue raised for the first time on appeal
does not apply when the district court relied on that issue to rule against the
appellant. On the merits, the district court erred when it granted summary judgment
to EMS on the ground that Ms. Tesone did not present expert evidence to establish
her disability.
16
Waiver and Forfeiture
a. Legal background
Two doctrines—forfeiture and waiver—limit our ability to consider arguments on
appeal. “[W]aiver is the intentional relinquishment or abandonment of a known right.”
United States v. Olano, 507 U.S. 725, 733 (1993); see also Wood v. Milyard, 566 U.S.
463, 470 n.4 (2012). It “comes about when a party deliberately considers an issue and
makes an intentional decision to forego it.” United States v. Malone, 937 F.3d 1325,
1327 (10th Cir. 2019). “[A] party that has waived [an argument] is not entitled to
appellate relief.” United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). “If [a]
theory was intentionally relinquished or abandoned in the district court, we . . . refuse to
consider it” on appeal. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir.
2011).
Forfeiture, by contrast, occurs when an appellant presents an argument on appeal
that “simply wasn’t raised before the district court.” Id. at 1128. “Unlike waived
theories, we will entertain forfeited theories on appeal, but we will reverse a district
court’s judgment on the basis of a forfeited theory only if failing to do so would entrench
a plainly erroneous result.” Id. In other words, “arguments raised for the first time in a
civil appeal may be reviewed only for plain error.” Somerlott v. Cherokee Nation
Distribs., Inc., 686 F.3d 1144, 1151 (10th Cir. 2012) (citing Richison, 634 F.3d at 1128).
This forfeiture rule does not apply when the district court explicitly considers and
resolves an issue of law on the merits. In that circumstance, “the appellant may challenge
that ruling on appeal on the ground addressed by the district court even if he failed to
17
raise the issue in district court.” United States v. Hernandez-Rodriguez, 352 F.3d 1325,
1328 (10th Cir. 2003). This is because “[a]ppellate courts can reach issues that were
either ‘pressed’ by the appellant before, or ‘passed upon’ by, the lower court.” United
States v. Verner, 659 F. App’x 461, 466 (10th Cir. 2016) (unpublished) (quoting United
States v. Williams, 504 U.S. 36, 41 (1992)). A court “passes upon” an issue when it
applies “the relevant law to the relevant facts.” Id. (citation omitted). An appellate court
is therefore “permit[ed] review of an issue not pressed so long as it has been passed
upon.” Williams, 504 U.S. at 41.
When a district court has “passe[d] upon” an issue, “review on appeal is not for
‘plain error,’ but is subject to the same standard of appellate review that would be
applicable if the appellant had properly raised the issue.” Hernandez-Rodriguez, 352
F.3d at 1328.
b. Analysis
Ms. Tesone argues on appeal that she is not required to present expert medical
evidence to establish her disability. She did not present this argument to the district
court. In her complaint, she simply alleged that she “was a qualified individual with
one disability of lower back pain” and that “[EMS] discriminated against [her] . . .
because of her disability.” Aplt. App. at 5. In her response to EMS’s motion for
summary judgment, she argued she provided the necessary “medical documentation”
to “demonstrate[] that she does have a disability as defined by the ADA.” Id. at
194-95. She did not argue that expert medical testimony was unnecessary but instead
asserted that her own evidence—a doctor’s letter—was sufficient.
18
Ms. Tesone’s motion for an enlargement of time similarly did not argue that
expert testimony is unnecessary to establish an ADA disability. In fact, the motion
effectively conceded that an expert was necessary to establish an ADA disability.
See id. at 350 (explaining that Ms. Tesone’s counsel’s “[f]ailure to know that an
expert was required did not appear to fit into the category of excusable neglect”); id.
at 351 (noting that at the time of filing, counsel believed that “the evidence in her
medical file [did] demonstrate that she had a back impairment, and that it did affect a
major life activity,” but “[counsel] now believes . . . that not having an expert to
testify regarding Ms. Tesone’s physical impairments would almost certainly be fatal
to [her] case”).10
10
Neither party invokes the invited error doctrine on appeal. Ms. Tesone’s
statement “that not having an expert . . . would almost certainly be fatal to her case,”
Aplt. App. at 351, was not invited error when placed in context.
“The invited error doctrine prevents a party who induces an erroneous ruling
from being able to have it set aside on appeal.” United States v. Morrison, 771 F.3d
687, 694 (10th Cir. 2014) (quotations omitted). In the typical invited error scenario,
a party “induce[s] the district court to do [some]thing it would not otherwise have
done,” id., and later attempts to challenge the “proposition that [it] . . . urged the
district court to adopt,” United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir.
2005).
Ms. Tesone has not done this. Although her motion to extend time
acknowledged that proceeding without an expert would “almost certainly be fatal,”
Aplt. App. at 351, she never “willingly adopted,” United States v. Rodebaugh, 598
F.3d 1281, 1304 (10th Cir. 2015), or “affirmatively approv[ed],” United States v.
Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012), the position that expert witness
testimony is always required to establish an ADA disability. She also did not attempt
to convince the district court to adopt that position. In fact, she acknowledged the
need for an expert only because, during settlement discussions, the magistrate judge
stressed the need for expert testimony. See, e.g., Aplt. App. at 351 (statement in Ms.
Tesone’s motion to extend time that her desire to designate an expert was “due in
large part to the settlement discussions . . . which included discussions with Judge
19
Because Ms. Tesone did not present her argument about expert medical
testimony to the district court, we would generally hold it forfeited and would review
it only for plain error. Here, however, the district court “explicitly” determined that
expert testimony is required to establish disability under the ADA. Hernandez-
Rodriguez, 352 F.3d at 1328. In its order granting summary judgment for EMS, the
court stated that Ms. Tesone could not establish a prima facie case of discrimination
“because she has presented no expert medical evidence that any of her major life
activities have been substantially limited by her alleged disability.” Aplt. App.
at 561 (quotations omitted). It also cited Felkins for the proposition that “expert
medical evidence” is an “element of the prima facie case [of disability
discrimination].” Id. at 561-62 (emphasis added). The court granted summary
judgment on the ground that “[Ms. Tesone’s] case suffer[ed] from the same
Mix”). If anything, the court instructed Ms. Tesone’s counsel that he must obtain an
expert to salvage his case, not the other way around.
Ms. Tesone may have accepted the magistrate judge’s instruction that she
needed an expert witness, but she did not “affirmatively approve[]” the position that
the ADA always requires expert testimony. Cornelius, 696 F.3d at 1319. Nor did
she “induce the district court to do anything it would not otherwise have done.”
Morrison, 771 F.3d at 694. This case thus presents the inverse of the typical invited
error scenario, so the doctrine does not apply.
EMS also does not argue judicial estoppel, nor does it apply. See BancInsure,
Inc. v. F.D.I.C., 796 F.3d 1226, 1240 (10th Cir. 2015) (“[J]udicial estoppel only
applies when the position to be estopped is one of fact, not one of law.”); Johnson v.
Lindon City Corp., 405 F.3d 1065, 1069 (10th Cir. 2005) (listing judicial estoppel
factors and noting that “judicial estoppel is applied in the narrowest of
circumstances” (quotations omitted)).
20
deficiency as the plaintiff’s case in Felkins”—namely, a lack of “expert medical
evidence.” Id.The district court thus “passed upon” the argument that Ms. Tesone now urges
on appeal. Williams, 504 U.S. at 41.11 We therefore may review the argument even
though Ms. Tesone did not present it to the district court.12
11
After oral argument, counsel for EMS submitted a Rule 28(j) letter
containing supplemental authority “on whether an appellant who challenges Circuit
precedent must raise that challenge in the district court to preserve it for appeal.”
Doc. 10681136. The cited cases do not change our analysis.
12
Moreover, Ms. Tesone did not waive the argument. As discussed above,
waiver “comes about when a party deliberately considers an issue and makes an
intentional decision to forego it.” Malone, 937 F.3d at 1327. At summary judgment,
Ms. Tesone argued that she “was able to provide . . . evidentiary support” to establish
her disability. Aplt. App. at 194-95. But she did not suggest that the evidence she
provided qualified as expert evidence, and she did not claim that expert evidence was
necessary. Because of this, we cannot say that she “deliberately consider[ed] [the]
issue and ma[de] an intentional decision to forego it.” Malone, 937 F.3d at 1327.
Although Ms. Tesone did not advance arguments about expert testimony at
summary judgment, she did, in her motion to enlarge time, acknowledge that she
needed an expert. As previously explained, Ms. Tesone made this statement in large
part because the magistrate judge instructed her that she could not prevail without
expert testimony. We do not think the statement shows that Ms. Tesone “deliberately
consider[ed] [the] issue and ma[de] an intentional decision to forego it.” Id. But
even if her motion to enlarge time could be viewed as a waiver, we would, given the
magistrate judge’s statements and the strictly legal issue on appeal—whether an
expert is required in all ADA cases—exercise our discretion to address the argument.
See Maralex Res., Inc. v. Barnhardt, 913 F.3d 1189, 1197 (10th Cir. 2019) (“We
have held . . . that we may depart from general waiver principles ‘particularly when
we are presented with a strictly legal question . . . .”); see also United States Nat’l
Bank of Oregon v. Indep. Agents of Am., Inc., 508 U.S. 439, 447-48 (1993) (noting
appellate court’s discretion to consider waived argument).
21
Summary Judgment Standard of Review
“[W]e review the district court’s grant of summary judgment de novo,
applying the same standards that the district court should have applied.” EEOC v.
C.R. Eng., Inc., 644 F.3d 1028, 1037 (10th Cir. 2011) (quotations omitted). In doing
so, “we consider the evidence in the light most favorable to the non-moving party.”
Id. (quotations omitted). “The court shall 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).
The party moving for summary judgment bears the initial burden of showing
an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986). Where, as here, the burden of persuasion at trial would be on the nonmoving
party, the movant may carry its initial burden by providing “affirmative evidence that
negates an essential element of the nonmoving party’s claim” or by “demonstrat[ing]
to the Court that the nonmoving party’s evidence is insufficient to establish an
essential element of the nonmoving party’s claim.” Id. at 331.
If the movant makes this showing, the burden then shifts to the nonmovant to
“set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the nonmovant “fails to make a
showing sufficient to establish the existence of an element,” the Federal Rules of
Civil Procedure “mandate[] the entry of summary judgment.” Celotex, 477 U.S. at
322.
22
Legal Background
The following provides background on (a) the ADA and ADAAA, (b) the
elements of an ADA claim, and (c) when expert evidence is necessary to establish an
ADA disability.
a. The ADA and ADAAA
In 1990, Congress enacted the ADA to “provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals with
disabilities.” Americans with Disabilities Act of 1990, Pub. L. No. 101-336,
§ 2(b)(1), 104 Stat. 327 (codified as amended at 42 U.S.C. § 12101 et seq.). The Act
defined disability as “(A) a physical or mental impairment that substantially limits
one or more major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). It “prohibit[ed] discrimination by covered entities, including private
employers, against qualified individuals with a disability.” Sutton v. United Air
Lines, Inc., 527 U.S. 471, 477 (1999).
In 2008, Congress passed the ADA Amendments Act (“ADAAA”), which was
designed to “reinstat[e] a broad scope of protection to be available under the ADA.”
Pub. L. No. 110-325 § 2(b)(1), 122 Stat. 3553 (2008). The ADAAA preserved the
ADA’s definition of “disability” but made it easier for plaintiffs to show that an
impairment “substantially limits one or more major life activities.” See 29 C.F.R.
§ 1630.2(j)(1)(i) (“The term ‘substantially limits’ shall be construed broadly in favor
of expansive coverage. . . . ‘Substantially limits’ is not meant to be a demanding
23
standard.”); id. § 1630.2(j)(1)(iii) (“An impairment need not prevent, or significantly
or severely restrict, the individual from performing a major life activity in order to be
considered substantially limiting.”). For simplicity, we refer to the amended Act
simply as “the ADA.”
b. ADA claim
The ADA, as amended, requires proof that the plaintiff: “(1) is a disabled
person as defined by the ADA; (2) is qualified, with or without reasonable
accommodation, to perform the essential functions of the job held or desired; and
(3) suffered discrimination by an employer or prospective employer because of that
disability.” C.R. Eng., Inc., 644 F.3d at 1037-38.
An ADA plaintiff may prove discrimination by providing direct evidence of
discriminatory conduct. Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134,
1150 (10th Cir. 2011). “In order to be direct, evidence must prove the existence of a
fact in issue without inference or presumption.” Jones v. United Parcel Serv., Inc.,
502 F.3d 1176, 1188 n.6 (10th Cir. 2007) (quotations omitted). Such evidence might
include an employer’s adoption of a facially discriminatory policy. See, e.g., Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (finding direct evidence of
discrimination where employer adopted policy restricting transfer opportunities for
employees above a certain age); L.A. Dep’t of Water & Power v. Manhart, 435 U.S.
702, 715 (1978) (finding direct evidence of discrimination where employer adopted
policy requiring female employees to contribute more to pension fund than male
employees). “[O]ral or written statements on the part of a defendant showing a
24
discriminatory motivation” may also constitute direct evidence of discrimination.
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000).
Where, as here, there is no direct evidence of discrimination, a plaintiff may
instead rely on circumstantial evidence. See Carter, 662 F.3d at 1150; see also Jones
v. Okla. City Pub. Sch., 617 F.3d 1273, 1278 (10th Cir. 2010). “If a plaintiff offers
no direct evidence of discrimination, which is often the case, the court applies the
burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).” C.R. Eng., 644 F.3d at 1038 (citation altered).
This analysis has three steps. First, the plaintiff must make out a prima facie case of
discrimination by demonstrating the three elements described above. Id. (citing
McDonnell Douglas, 411 U.S. at 802). Then the “burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its actions.” Id. (citing
McDonnell Douglas, 411 U.S. at 802-03). “If the defendant proffers such a reason,
the burden then shifts back to the plaintiff to show that the defendant’s stated reasons
are merely ‘pretextual.’” Id. (citing McDonnell Douglas, 411 U.S. at 804-05).
The summary judgment ruling in this case focused on the first element of a
prima facie case of discrimination. This element requires the plaintiff to meet the
statutory definition of “disability” in 42 U.S.C. § 12102(1). When the claim is for
discrimination based on an actual disability, the plaintiff must show “a physical or
mental impairment that substantially limits one or more major life activities.”
42 U.S.C. § 12102(1)(A). The ADA does not define “physical or mental
impairment,” but an EEOC regulation specifies that the terms encompass “[a]ny
25
physiological disorder, or condition . . . affecting one or more body systems, such as
neurological, musculoskeletal, special sense organs, respiratory (including speech
organs), cardiovascular, reproductive, [or] digestive . . . .” 29 C.F.R. § 1630.2(h)(1).
The regulation also states that “[a]n impairment is a disability within the meaning of
[the ADA] if it substantially limits the ability of an individual to perform a major life
activity as compared to most people in the general population.” Id. § 1630.2(j)(1)(ii).
c. Necessity of expert testimony
As just explained, “[a]n impairment is a disability within the meaning of [the
ADA] if it substantially limits the ability of an individual to perform a major life
activity as compared to most people in the general population.” Id. § 1630.2(j)(1)(ii).
The ADA regulations specify that “[t]he comparison of an individual’s performance
of a major life activity to the performance of the same major life activity by most
people in the general population usually will not require scientific, medical, or
statistical analysis.” Id. § 1630.2(j)(1)(v). But the regulations do not “prohibit the
presentation of scientific, medical, or statistical evidence to make such a comparison
where appropriate.” Id.
Expert medical testimony may be used to establish a plaintiff’s disability. See,
e.g., Carter, 662 F.3d at 1142 (holding that plaintiff “established that he had a
physical impairment within the meaning of the ADA” by “submitt[ing] medical
testimony”); see also Cook v. R.I. Dep’t of Mental Health, Retardation, and Hosps.,
10 F.3d 17, 23 (1st Cir. 1993) (noting that “the jury could plausibly have found that
plaintiff had a physical impairment” because “she presented expert testimony that
26
morbid obesity is a physiological disorder”). But “[n]o language in the ADA or
implementing regulations states that medical testimony is required,” EEOC v.
AutoZone, Inc., 630 F.3d 635, 643 (7th Cir. 2010), and “[t]here is certainly no
general rule that medical testimony is always necessary to establish disability,” Katz
v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996). Rather, “[w]hether medical
evidence is necessary to support a disability discrimination claim is a determination
that must be made on a case-by-case basis.” Mancini v. City of Providence, 909 F.3d
32, 39 (1st Cir. 2018).
Courts generally require expert evidence when “a condition would be
unfamiliar to a lay jury and only an expert could diagnose that condition.” Id. at 41
(citing Felkins, 774 F.3d at 648, 652); see also Katz, 87 F.3d at 31 n.4 (“[W]here it is
not obvious to a lay jury that the condition affects one of the bodily systems listed in
the regulations, expert testimony that it does may well be necessary to avoid a
judgment as a matter of law.”).
In Felkins, for example, the plaintiff claimed her employer refused to
accommodate her avascular necrosis—a “rare condition that can cause bone tissue to
die from poor blood supply.” 774 F.3d at 648. But aside from her own declarations,
the plaintiff offered no medical evidence to confirm her diagnosis. See id. at 651
(noting that the medical evidence in the record contained “no mention of avascular
necrosis, much less a description of its effects on Ms. Felkins”). Because she lacked
expert medical evidence of her condition, the district court granted summary
judgment for the defendants.
27
On appeal, we explained that “a lay witness is competent to testify concerning
those physical injuries and conditions which are susceptible to observation by an
ordinary person.” Id. at 652 (quoting Franklin v. Shelton, 250 F.2d 92, 97 (10th Cir.
1957)).13 But we noted that “where injuries complained of are of such character as to
require skilled and professional persons to determine the cause and extent thereof,
they must be proved by the testimony of medical experts.” Id. (quoting Franklin, 250
F.2d at 97) (alterations omitted). We concluded that the plaintiff’s avascular necrosis
was “beyond the realm of common experience” and thus “require[d] the special skill
and knowledge of an expert witness.” Id. (quotations omitted).
By contrast, when a plaintiff alleges an impairment “that a lay jury can fathom
without expert guidance,” courts generally “do not require medical evidence” to
establish an ADA disability. See Mancini, 909 F.3d at 42. In Mancini, for example,
the First Circuit held that “medical evidence was not required to establish that [the
plaintiff’s] knee injury constituted an impairment” because “a lay jury can fathom [a
knee injury] without expert guidance.” Id. And in Marinelli v. City of Erie, Pa., 216
F.3d 354 (3d Cir. 2000), the Third Circuit held that a plaintiff’s “failure to present
medical evidence of his [arm and neck pain], in and of itself, [did] not warrant
judgment as a matter of law in favor of the [defendants]” because “arm and neck pain
. . . are among those ailments that are the least technical in nature and are the most
13
Franklin v. Shelton was not an ADA case. However, in Felkins, we held
that the evidentiary principles articulated in Franklin “apply, of course, to ADA
claims.” Felkins, 774 F.3d at 652.
28
amenable to comprehension by a lay jury.” Id. at 361. The Seventh Circuit similarly
declined to require expert medical evidence where a plaintiff suffered from a back
injury because he “described in detail the limitations [he] faced in his ability to care
for himself.” AutoZone, 630 F.3d at 644.
Analysis
As noted above, to prove the first element of a prima facie case of disability
discrimination, the plaintiff must show “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).
This element includes proof of the impairment itself and that the impairment limits a
major life activity.14 See Carter, 662 F.3d at 1142 (noting that to establish a
disability, an ADA plaintiff must “(1) have a recognized impairment, (2) identify one
or more appropriate major life activities, and (3) show the impairment substantially
limits one or more of those activities” (quotations omitted)).
The district court granted summary judgment for EMS because it found Ms.
Tesone “presented no expert medical evidence that any of her major life activities
have been substantially limited by her alleged disability,” Aplt. App. at 561
(quotations omitted), and therefore “[would] not be able to present evidence to
establish a prima facie case for disability discrimination,” id. at 557. As explained
14
42 U.S.C. § 12102(2)(A) specifies that “major life activities include . . .
lifting.”
29
below, this ruling was legally erroneous because expert medical evidence is not
required to establish a disability in all ADA cases.
On page two of its six-page order, the district court said, “[T]he Tenth Circuit
requires the testimony of an expert to establish a prima facie case of a disability
under the ADA. Therefore, [Ms. Tesone] cannot meet the prima facie case for her
claim, and it must therefore fail.” Id. at 558. This passage states the basis for the
court’s ruling. It is legally erroneous.
As explained above, “[n]o language in the ADA or implementing regulations
states that medical testimony is required,” AutoZone, Inc., 630 F.3d at 643, and
“[t]here is certainly no general rule that medical testimony is always necessary to
establish disability,” Katz, 87 F.3d at 32. Instead, courts assess the necessity of
expert evidence on a case-by-case basis and consider the type of disability alleged.
See Mancini, 909 F.3d at 39. Courts generally require expert testimony only if an
impairment is “rare” or “of such character as to require skilled and professional
persons to determine the cause and extent thereof.” Felkins, 774 F.3d at 652
(quotations omitted). But when an impairment or disability is “obvious,” Katz, 87
F.3d at 32, or can be “fathom[ed] without expert guidance,” Mancini, 909 F.3d at 42,
courts generally do not require expert testimony. See also 6 Jones on Evidence
§ 52:1 (7th ed. 2019) (“To determine whether expert testimony is required to
establish . . . an element . . . of a medically-related cause of action, courts consider
whether the subject . . . is one within the realm of the ordinary experience of
30
mankind . . . . If it is beyond the ken of a lay jury, . . . then the plaintiff must present
expert testimony . . . .” (quotations omitted)).
Despite this clear guidance, the district court stated that “the Tenth Circuit
requires the testimony of an expert to establish a prima facie case of a disability
under the ADA.” Aplt. App. at 558. The court cited Felkins in support. It described
Felkins as follows:
In that case, the plaintiff brought a disability
discrimination claim against her former employer under
the ADA. [774 F.3d] at 648–49. However, the only
evidence she presented of her disability was “a Family and
Medical Leave Act (FMLA) document . . . indicating that
[the plaintiff] had received hospital care but did not have a
chronic condition,” and a note from physician assistant
“stating only ‘Return to work full duty [on a certain
date].’” Id. at 648. She also “submitted a declaration
under penalty of perjury asserting that her [alleged
disability] caused her [injury].” Id. at 649. The Tenth
Circuit held that the plaintiff did not “present sufficient
evidence to prove . . . that she has a condition . . . that
substantially limits a[] . . . major life activit[y].” Id. at
651. It did so, because the plaintiff “presented no expert
medical evidence” of the alleged disability. Id. at 648.
Considering this element of the prima facie case was
lacking, the Tenth Circuit affirmed the district court’s
decision to grant summary judgment to the defendant. Id.
at 653.
Id. at 561-62. The court then said that “[Ms. Tesone’s] case suffers from the same
deficiency as the plaintiff’s case in Felkins.” Id. at 562.
We disagree with the district court’s reading of Felkins. In Felkins, we did not
hold that an expert is always necessary to establish a prima facie ADA discrimination
31
case. Instead, we gave examples of when lay testimony on health conditions may be
appropriate and quoted with approval the following principles:
[W]here injuries complained of are of such character as to
require skilled and professional persons to determine the
cause and extent thereof, they must be proved by the
testimony of medical experts, but . . . a lay witness is
competent to testify concerning those physical injuries and
conditions which are susceptible to observation by an
ordinary person.
Felkins, 774 F.3d at 652 (quoting Franklin, 250 F.2d at 97); see also id. (“These
evidentiary principles apply, of course, to ADA claims.”). The Felkins panel went on
to say that “Ms. Felkins’s declarations are admissible insofar as they describe her
injuries and symptoms, such as pain and difficulties walking, standing, and lifting.”
Id. But the special skill and knowledge of an expert was needed to “diagnose her
condition as avascular necrosis.” Id.
Felkins and this case reflect why courts should conduct a case-by-case analysis
to determine whether expert testimony is required to establish an ADA disability. In
Felkins, the plaintiff suffered from avascular necrosis, a rare bone condition. Here,
by contrast, Ms. Tesone alleges she suffers from a back injury that impairs her ability
to lift heavy objects. Unlike avascular necrosis, a back injury may not be “beyond
the realm of common experience” and may not “require the special skill and
knowledge of an expert witness.” Felkins, 774 F.3d at 652. Rather, a back injury
could be “among those ailments that are the least technical in nature and are the most
amenable to comprehension by a lay jury.” Marinelli, 216 F.3d at 361. Like “arm
and neck pain,” id., or a “knee injury,” Mancini, 909 F.3d at 42, a back injury might
32
fall “within the universe of impairments that a lay jury can fathom without expert
guidance,” id. Such “conditions do not require medical evidence in an ADA case.”
Id. Indeed, we said that Ms. Felkins’s declarations about “pain” from her “injuries”
and “difficulties” with “lifting” were “admissible.” Felkins, 774 F.3d at 652.
The district court did not perform this case-specific analysis to determine
whether expert testimony is necessary to establish the particular disability alleged
here. Instead, it announced a broad, categorical rule that expert proof of disability is
required in all ADA cases. This ruling contradicts the weight of ADA authority
holding that “[t]here is certainly no general rule that medical testimony is always
necessary to establish disability,” Katz, 87 F.3d at 32, and that the necessity of such
evidence should be assessed “on a case-by-case-basis,” Mancini, 909 F.3d at 39. We
therefore reverse the summary judgment ruling and remand to the district court for a
case-specific consideration of whether expert evidence is required.
a. Summary judgment evidence on remand
Because we remand, we offer an additional point for the district court’s
consideration. In the order granting summary judgment, the court addressed the
previously described letter from Dr. Brian Manjarres, which stated that Ms. Tesone
“has certain limitations related to muscle weakness” and “chronic lower back pain.”
Aplt. App. at 139. Citing Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir.
33
2005), the court refused to consider the note, explaining that it was “not accompanied
with an affidavit and therefore is inadmissible hearsay.” Id.15
“At the summary judgment stage, evidence need not be submitted in a form
that would be admissible at trial,” but “the content or substance of the evidence must
be admissible.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199
(10th Cir. 2006) (quotations omitted); see Brown v. Perez, 835 F.3d 1223, 1232 (10th
Cir. 2016); Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in
evidence.”). Courts have held that an unsworn doctor’s note is inadmissible hearsay
and cannot be used to oppose summary judgment. See, e.g., Wilkerson v. Schirmer
Eng’g Corp., No. 04CV00258 WDM/OES, 2006 WL 228818, *6 (D. Colo. Jan. 30,
2006) (“Wilkerson attempts to show that she is disabled through a letter from her
doctor and statements in her verified complaint. Clearly, the letter from her doctor is
inadmissible hearsay, and should not be considered.”).
But Capobianco v. City of New York, which the district court relied on for its
ruling, held that an unsworn doctor’s note can be considered when the defendants
attached the note to their motion for summary judgment and relied on it in arguing
15
“The requirement is that the party submitting the evidence show that it will
be possible to put the information, the substance or content of the evidence, into an
admissible form.” 11 James Wm. Moore et al., Moore’s Federal Practice - Civil
§ 56.91 (3d ed. 2015) (collecting cases); see also Fed. R. Civ. P. 56(c)(2) adv. comm.
cmt. (“The burden is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated.”).
34
for summary judgment. 422 F.3d 47 at 55. The district court here omitted the
following relevant analysis from Capobianco:
The district court held that Dr. Brodie's letters were
“inadmissible as unsworn statements and inadequate as a
basis to oppose the defendants’ motion for summary
judgment.” As a general matter, it is correct that unsworn
letters from physicians generally are inadmissible hearsay
that are an insufficient basis for opposing a motion for
summary judgment. See Fed. R. Civ. P. 56(e); Douglas v.
Victor Capital Group, 21 F.Supp.2d 379, 391–92
(S.D.N.Y. 1998) (physician letters in ADA case); see
also United States v. All Right, Title & Interest in Real
Prop. & Appurtenances, 77 F.3d 648, 657–58 (2d Cir.
1996) (“[T]he submission of [an] unsworn letter was an
inappropriate response to the . . . motion for summary
judgment, and the factual assertions made in that letter
were properly disregarded by the court.”). Nonetheless,
here it was an abuse of discretion for the district court to
exclude the two letters.
First, the letters were submitted not by Capobianco
but by defendants, in support of their motion for summary
judgment. They were attached as exhibits to defendants’
Rule 56.1 Statement and were part of defendants’ moving
papers. Defendants cited both letters and relied on them in
seeking summary judgment. Hence, defendants waived
any objections to the admissibility of the reports by
offering them themselves. See 10A Charles Alan Wright et
al., Federal Practice & Procedure § 2722, at 384–85 (3d
ed. 1998) (“[U]ncertified or otherwise inadmissible
documents may be considered by the court if not
challenged. The objection must be timely or it will be
deemed to have been waived.”) (footnote omitted); see
also Fed. R. Evid. 801(d)(2)(B) (“A statement is not
hearsay if . . . [t]he statement is offered against a party and
is . . . a statement of which the party has manifested an
adoption or belief in its truth[.]”). Neither side objected to
the admissibility of the reports, and, indeed, both sides
relied on them.
35
Second, the district court’s sua sponte decision to
exclude the reports prejudiced Capobianco. Because
defendants had submitted the reports initially, Capobianco
reasonably believed that he could rely on them even
though they were unsworn letters. With the reports
apparently a part of the summary judgment record, and
without notice that any issue existed as to their
admissibility, Capobianco understandably did not obtain a
sworn affidavit from Dr. Brodie, which presumably would
have merely reiterated what was already in the letters. Had
he been given notice that this was an issue, Capobianco
could have obtained an affidavit easily, as Dr. Brodie had
already been designated an expert and his expert report had
previously been produced.
Id.
Whether Ms. Tesone can make a prima facie case of a disability, and whether
her doctor’s note can be considered at summary judgment, is open to the district
court’s further consideration.
III. CONCLUSION
We affirm the district court’s denials of Ms. Tesone’s motion for an
enlargement of time to designate an expert witness and of her motion to amend the
complaint. We reverse the summary judgment order and remand for further
consideration of summary judgment.
36