Herrmann v. Salt Lake City Corporation
Citation21 F.4th 666
Date Filed2021-12-20
Docket20-4063
Cited35 times
StatusPublished
Full Opinion (html_with_citations)
Appellate Case: 20-4063 Document: 010110621392 Date Filed: 12/20/2021 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JAMIE HERRMANN,
Plaintiff - Appellant,
v. No. 20-4063
SALT LAKE CITY CORPORATION, Salt
Lake City Justice Court,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:17-CV-00324-CW)
_________________________________
Laura Henrie (Mary Anne Davies and Katherine Bushman, with her on the briefs),
Disability Law Center, Salt Lake City, Utah, appearing for Appellant.
Samantha J. Slark (Jonathan G. Pappasideris, with her on the brief), Salt Lake City
Corporation, Salt Lake City, Utah, appearing for Appellee.
_________________________________
Before MORITZ, KELLY, and BRISCOE, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
Plaintiff Jamie Herrmann appeals the district courtâs grant of summary
judgment to Defendant Salt Lake City Corporation (âthe Cityâ) on her claims for
failure to accommodate her disability, disability discrimination, and retaliation under
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the Americans with Disabilities Act (âADAâ), as amended. 42 U.S.C. § 12101 et seq.
We REVERSE the district courtâs grant of summary judgment on Herrmannâs failure
to accommodate claim and REMAND for further consideration. We AFFIRM the
district courtâs grant of summary judgment on Herrmannâs disability discrimination
and retaliation claims.
I
Herrmann began working for the City in 2002 and successfully held different
positions in the Salt Lake City Justice courts for nine years. Starting in 2011,
Herrmann began working as an in-court clerk, which required her to spend more time
in court than her previous positions.
Herrmann has PTSD, stemming from a nearly decade-long abusive marriage.
Her presence in the courtroom during domestic violence cases frequently triggered
her anxiety, causing severe migraines that could last for several days at a time and
resulting in a significant downturn in her productivity. As Herrmannâs work
performance suffered, she had several meetings with supervisors, received written
warnings, and was ultimately suspended for two days in July 2014. Throughout this
time, Herrmann took intermittent leave under the FMLA for health conditions,
including the exacerbation of her PTSD.
A few months before her suspension, in May 2014, Herrmann contacted
Melissa Green, the Cityâs Equal Opportunity Program Manager, about a potential
accommodation under the ADA. Green sent Herrmann paperwork to fill out, and two
months later, Herrmannâs clinical social worker, Gary Klein, submitted paperwork to
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Green. Klein noted that Herrmannâs presence in court while domestic violence cases
were being heard triggered her PTSD, which exacerbated her anxiety and clinical
depression. Klein stated that â[a]ny reasonable accommodations that would eschew a
spike in anxiety would likely yield positive results for Ms. Herrmann as well as those
with whom she works.â Joint Appendix (âJAâ) at 295.
Herrmann met with Green on August 7, 2014, to request that she be removed
from all domestic violence cases. Green then spoke with court managers Curtis
Preece and Tammy Shelton about whether that request could be accommodated.
Preece and Shelton told Green that all of Herrmannâs duties as a court clerk could
result in contact with domestic violence cases, whether in or out of a courtroom.
Green emailed Herrmann on August 15, 2014, asking whether Herrmann was
requesting total removal from any work on domestic violence cases or if she could
still perform out-of-court clerical work relating to domestic violence cases. Herrmann
responded that she would prefer to meet with Green in person to discuss the matter,
so the two set a meeting for August 20, 2014. But Herrmann left work early that day
due to a migraine, did not attend the meeting, did not tell Green that she would miss
the meeting, and did not attempt to reschedule or follow up with Green. Green
followed up, but Herrmann did not respond because she did not have access to her
work email while recovering at home from her migraine.
On August 25, 2014, Klein requested six months of FMLA leave for
Herrmann. In the paperwork, Klein specifically noted that the probable duration of
Herrmannâs elevated PTSD symptoms was three to six months, and he later followed
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up to state that she could likely return to work after treatment. The City approved
continuous FMLA leave for Herrmann, but only through October 14, 2014. On
September 15, 2014, Green again asked for clarification on the scope of Herrmannâs
ADA accommodation request. Herrmann responded via email but explained only why
she did not attend the scheduled meeting with Green the month before.
On September 22, 2014, Herrmann updated her accommodation request via
email, writing, âMy counselor and Dr want to request as part of the accommodation
that I do not return to the court but a different position within Salt Lake City
Corporation.â Id. at 370. Green responded that the City would consider reassignment
to an open position if the City determined that Herrmann could not reasonably be
accommodated in her current position. Green further explained that she would rely on
the ADA paperwork submitted by Klein in July 2014 and that if Herrmann desired,
she could update her paperwork.
Accordingly, on October 7, 2014, Klein submitted new paperwork on
Herrmannâs behalf. Klein reiterated that Herrmannâs PTSD is triggered by listening
to domestic violence cases in court, resulting in heightened stress levels and
migraines, among other things. Klein also explained his belief that Herrmannâs
heightened stress levels were exacerbated by her supervisors, noting a tape recording
of an interaction between Herrmann and her supervisors, writing: âThe interactions I
heard on the recordings are counter-productive for someone with PTSD.â Id. at 375. Klein therefore recommended that Herrmann âtake enough time offâ so that her stress levels could reset, and that she be moved to a different department.Id.
Klein noted
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that â[t]here is a high probability [Herrmann] will be able to return to a productive
work life in a different department.â Id. In the section of the paperwork for suggested
accommodations, Klein wrote:
I would recommend Ms. Herrmann be given the opportunity to work in
a different department with different supervisors. Finding a good
supervisory fit is essential to her productivity. I would further
recommend avoidance of any work related to domestic violence, as this
triggers her PTSD, migraines[,] and results in her needing to take time
off to recover.
Id.
Meanwhile, in early October 2014, Klein and Dr. Nancy Foster (another of
Herrmannâs medical providers) requested that Herrmannâs FMLA leave be extended
to November 30, 2014. The City approved an extension of FMLA leave, but only
until November 13, 2014, when Herrmann would exhaust her twelve weeks of
federally protected FMLA leave. In the notice approving the extension, the Cityâs
FMLA coordinator suggested that Herrmann contact Green for an ADA
accommodation or submit a written request to Preece for departmental leave to
receive leave beyond the FMLA-protected twelve weeks.
On October 15, 2014, Herrmann emailed Green inquiring about the status of
her ADA request, noting that she was concerned about her âFMLA time running out
on November 13, 2014.â Id. at 377. Green wrote back the next day, saying that she reviewed Kleinâs paperwork and needed to listen to the recording that Klein referenced. Herrmann responded a week later that âthe recordings are irrelevant to [Green] making the [ADA] accommodation.âId. at 376
. Green clarified that because
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Kleinâs recommended accommodation was based on his view that Herrmannâs
supervisors were not a good fit, she needed to understand what was a bad fit before
she could determine what might be a good one. At a meeting on October 28,
Herrmann played a portion of the recording, but the batteries in her tape recorder
died. Green said she did not hear any of the conduct Herrmann or Klein had
described. Herrmann claimed she had another recording of her supervisor yelling at
her but was not comfortable leaving the tape recorder with Green and told her that
she would get back to her with that recording.
On November 4, 2014, Preece, on behalf of the City, sent Herrmann a âNotice
of Intent to Separate from Employment Due to Unavailabilityâ (âthe Noticeâ). Id. at
428â29. The Notice informed Herrmann that:
[E]ffective November 13, 2014, you will have exhausted all approved
FMLA leave time. Based on the information you provided to the City, I
understand you will not be able to return to work until November 30,
2014. . . .
[E]mployees may not be absent from the workplace unless the leave is
protected under FMLA or is an approved leave of absence. . . .
Although you were already using intermittent FLMA [sic] leave; you
invoked your right to use continuous FMLA leave on August 20, 2014.
As of today, I have not received a medical certification from your health
care provider stating you are able to return to work on November 14,
2014.
Although your protected leave under the FMLA will be exhausted, you
may still qualify for a leave of absence. A department-approved leave of
absence will allow you to continue your City benefits for a limited
period of time. Even if you are granted a department-approved leave of
absence, you may be separated from your position in our department
without a right to return to work at the end of the leave. If you wish to
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apply for a department-approved leave of absence, please submit your
written request to Curtis Preece by November 13, 2014.
Since your inability to return to work is involuntary for medical reasons,
this memorandum is notice of a proposed action which may affect your
employment and gives you an opportunity to present alternatives. You
may propose reasonable alternatives in writing that would allow you to
return to work. Or, if you prefer, I would be glad to meet with you to
discuss your circumstances, hear any potential proposals you may have,
and answer any questions. . . .
If you do not provide us with a response or alternative by the stated
deadline, I intend to separate you from your employment with the City
by no later than close of business on November 13, 2014.
I understand you have been working with Melissa Green regarding an
accommodation under the Americans with Disabilities Act (ADA). I
encourage you to continue working with Ms. Green through this
process. I also encourage you to contact Jodi Langford, Benefits
Program Manager, to discuss any benefits you may have.
Id.
On November 7, 2014, Green wrote to Herrmann stating that she had still not
received the recording or any other contact from Herrmann on the matter. Green
stated that she needed the recordings and any other relevant information by
November 13, 2014âthe day Herrmannâs FMLA leave expiredâor else she would
have âno option but to close your request for an accommodation.â Id. at 379â80.
On November 11, 2014, Herrmann emailed Preece to request âan
accommodation under my (ADA) Americans with Disabilities Act to extend the date,
because I need more time to review this separation agreement.â Id. at 431. Preece
responded that Herrmann should contact Green regarding any ADA accommodation.
On November 12, 2014, Herrmann emailed Green to request additional leave as an
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accommodation for her disability. She stated that she thought the recordings were
irrelevant to her request for accommodation. Herrmann also called Green four times
to determine what she should do as her FMLA leave would expire the next day.
Herrmann finally reached Green, and Green told Herrmann that she had not made any
decision on the accommodation request. Herrmann offered to bring the recording to
Greenâs office so she could listen to it again. Green declined.
Herrmann then called HR Representative Jennifer Sykes and asked her what
she should do regarding the impending separation of her employment. Sykes
responded that the City would not make a decision on Herrmannâs employment until
Green resolved the ADA accommodation request. Sykes did not clarify whether
Herrmann needed to return to work the next day.
Herrmann was separated from her employment at the close of business on
November 13. On November 14, Green sent a letter to Herrmann explaining that with
the information she had, she was âunable to determine what type of supervisor may
be best for [her].â Id. at 426â27. Green then closed Herrmannâs accommodation
request. Greenâs letter did not acknowledge that Herrmann had already been
separated from her employment.
Herrmann attempted to return to work the following Monday, November 17,
believing she was still employed. Herrmann was immediately escorted to Preeceâs
office, where he told her that her employment had ended. Herrmann told Preece that
she had a medical release from Klein and asked if she could retrieve it, but Preece
responded that it was too late.
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After receiving a notice of right to sue, Herrmann sued the City under the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Herrmann raised three
claims under the ADA: (1) failure to provide reasonable accommodations,
(2) disability discrimination, and (3) retaliation. The City moved for summary
judgment on all three claims and the district court granted that motion. Herrmann
appeals.
II
We review the district courtâs grant of summary judgment against Herrmann
de novo and apply the same standard as the district court. Osborne v. Baxter
Healthcare Corp., 798 F.3d 1260, 1266(10th Cir. 2015). We view the facts in the light most favorable to Herrmann, drawing all reasonable inferences in her favor.Id.
âSummary judgment is appropriate âif 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.ââId.
(quoting Fed. R. Civ. P. 56(a)).
A
The district court erred in granting summary judgment on Herrmannâs failure
to accommodate claim.
âThe ADA prohibits employers from discriminating against âa qualified
individual on the basis of disability.ââ Id.at 1266 (quoting42 U.S.C. § 12112
(a)). The ADAâs definition of discrimination includes ânot making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . .â42 U.S.C. § 12112
(b)(5)(A). To establish
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a prima facie case of failure to accommodate, a plaintiff âmust make an initial
showing that â(1) she is disabled; (2) she is âotherwise qualifiedâ; and (3) she
requested a plausibly reasonable accommodation.ââ Punt v. Kelly Servs., 862 F.3d
1040, 1050(10th Cir. 2017) (quoting Sanchez v. Vilsack,695 F.3d 1174, 1177
(10th Cir. 2012)). If a plaintiff makes a prima facie case, the burden shifts to the defendant to âpresent evidence either (1) conclusively rebutting one or more elements of plaintiffâs prima facie case or (2) establishing an affirmative defense.âId.
A plaintiff need not establish discriminatory intent to show that an action was
taken âon the basis of disability . . . . [b]ecause âany failure to provide reasonable
accommodations for a disability is necessarily because of disability.ââ Lincoln v.
BNSF Ry. Co., 900 F.3d 1166, 1204(10th Cir. 2018) (quoting Punt,862 F.3d at 1048
). The City does not dispute that Herrmann is disabled or that she is otherwise
qualified, so the only issue before us on the failure to accommodate claim is whether
Herrmann requested a plausibly reasonable accommodation.
The district court granted the City summary judgment on Herrmannâs three
asserted plausibly reasonable requests: (1) removal âfrom all work regarding
domestic violence casesâ; (2) reassignment; and (3) additional leave. Aplt. Br. at 32.
On appeal, Herrmann does not challenge the district courtâs grant of summary
judgment to the City âon Herrmannâs failure to accommodate [claim] related to
removal from domestic violence cases.â Id. at 22 n.3.
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1
The ADA lists âreassignment to a vacant positionâ as a possible reasonable
accommodation. 42 U.S.C. § 12111(9); see also Smith v. Midland Brake, Inc.,180 F.3d 1154, 1161
(10th Cir. 1999) (en banc). Once an employee requests reassignment as an accommodation, both the employee and employer have an obligation to engage in an interactive process, which âis inherent in the statutory obligation to offer a reasonable accommodation to an otherwise qualified disabled employee,â and âis typically an essential component of the process by which a reasonable accommodation can be determined.â Smith,180 F.3d at 1172
. This interactive process requires âgood-faith communications.âId.
To meet a prima facie case of reassignment as a reasonable accommodation, a
plaintiff must make an initial showing that:
(1) The employee is a disabled person within the meaning of the ADA and
has made any resulting limitations from his or her disability known to
the employer;
(2) The preferred option of accommodation within the employeeâs existing
job cannot reasonably be accomplished[;]
(3) The employee requested the employer reasonably to accommodate his
or her disability by reassignment to a vacant position, which the
employee may identify at the outset or which the employee may request
the employer identify through an interactive process, in which the
employee in good faith was willing to, or did, cooperate;
(4) The employee was qualified, with or without reasonable
accommodation, to perform one or more appropriate vacant jobs within
the company that the employee must, at the time of the summary
judgment proceeding, specifically identify and show were available
within the company at or about the time the request for reassignment
was made; and
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(5) The employee suffered injury because the employer did not offer to
reassign the employee to any appropriate vacant position.
Id. at 1179.
The district court determined that Herrmann did not establish a dispute of fact
regarding the second element of this testâthat the preferred option of
accommodation within her existing job could not be reasonably accomplishedâand,
as a result, did not consider the other elements of the prima facie case. We disagree.
Herrmann has established a dispute of fact on the second element of her prima facie
case. We therefore reverse the district court as to that element and remand for
consideration of elements three and four.
Herrmann did not respond to all of Greenâs inquiries, but Green learned from
Preece and Shelton that it was not feasible to accommodate Herrmann by removing
all domestic violence cases from her existing position. Further, Herrmann specifically
requested reassignment to a different position with the City. Finally, Klein
ârecommend[ed] avoidance of any work related to domestic violence, as this triggers
[Herrmannâs] PTSD, migraines, and results in her needing to take time off to
recover.â JA at 375 (emphasis added). Viewing the facts in the light most favorable
to Herrmann, we read these statements together. For summary judgment purposes,
Herrmann âclarif[ied] the nature of her requestâ by showing that she could not be
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accommodated in her current role and thereby she triggered the Cityâs duty to
consider reassignment.1 Aplt. Br. at 25.
The City argues that Herrmannâs request for reassignment was merely a
request for new supervisors and was therefore presumptively unreasonable, or that
her request for reassignment hinged on a determination of what kind of supervisor
might be a good fit for Herrmann. The City further argues that Herrmann failed to
engage in the interactive process by not providing recordings of her interactions with
her supervisors or otherwise explaining why her present supervisors were not a good
âsupervisory fit.â
We disagree with this narrowed focus of Herrmannâs request for reassignment.
Viewing the facts in the light most favorable to Herrmann, the request for different
supervisors is separate from the request for reassignment: Herrmann requested
reassignment and additionally expressed a preference for reassignment to a job with
different supervisors. To construe Kleinâs accommodation request as only one for
new supervisors would ignore the rest of the record and require an inference in favor
of the City. It would also penalize Herrmann for requesting more than the bare
minimum that the ADA allows. With that in mind, we need not delve into the back
and forth over the tape recordings or determine whether Herrmann failed to engage in
1
Contrary to the Cityâs claims, Aple. Br. at 22, Herrmann explicitly argued
this point at the summary judgment hearing. JA at 972â73. This was her first
opportunity to raise this point because the City did not argue that Herrmann failed to
trigger the Cityâs duty to consider reassignment until its reply. See id. at 852 n.6,
856.
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the interactive process.2 The recordings were irrelevant to Herrmannâs overarching
request for reassignment.
In sum, Herrmann presented some evidence supporting a conclusion that she
could not be accommodated within her existing position. Therefore, the district court
erred in holding that Herrmann did not meet her prima facie case. As the district
court did not address the other elements of Herrmannâs prima facie case the City
challenges, we reverse and remand to provide the district court with that opportunity.
2
We next address whether Herrmannâs request for leave was plausibly
reasonable. As recognized by the district court, Herrmann and her medical providers
made four relevant requests for leave:
(1) Dr. Fosterâs request on October 6, 2014 that Herrmannâs FMLA leave be
extended to November 30, 2014. JA at 695â96.
(2) Kleinâs request in his ADA paperwork filed on October 7, 2014 for Herrmann
to take âenough time offâ for her PTSD to subside, id. at 373â75, and his
follow-up clarification that Herrmannâs FMLA leave be extended to November
30, 2014, id. at 697.
(3) Herrmannâs email to Preece on November 11, 2014 ârequesting an
accommodation under my [ADA]â to postpone the separation of employment
to allow her more time to review the Notice of Intent to Separate Employment.
Id. at 431.
2
Similarly, the City contends on appeal that Herrmann did not meet the fourth
element of her prima facie case because she did not know who the supervisors were
for the only available requested position. See Aple. Br. at 29â30. It also challenges
Herrmannâs assertion that she satisfied the third element because she did not
âreasonably request[] reassignment to a vacant position.â Id. at 25 (quoting Smith,
180 F.3d at 1179). As the district court only addressed the second element of
Herrmannâs prima facie case, we leave consideration of these arguments to the
district court on remand.
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(4) Herrmannâs email to Green on November 12, 2014 ârequesting that additional
time be provided for leave absence as an accommodation for [her] disabilities.â
Id. at 381.
âIt is well-settled that a request for leave may lead to a âreasonableâ
accommodationâsuch a request may allow an employee sufficient time to recover
from an injury or illness such that the employee can perform the essential functions
of the job (i.e., attend work) in the future.â Cisneros v. Wilson, 226 F.3d 1113, 1129(10th Cir. 2000), overruled on other grounds by Bd. of Trs. of Univ. of Ala. v. Garrett,531 U.S. 356
(2001). But a request for indefinite leave is not reasonable as a matter of law.Id.
For a leave request to be reasonable, an employee must âprovide an
expected duration of the impairment (not the duration of the leave request).â Id. at
1130 (emphasis in original). This is because a reasonable accommodation ârefers to
those accommodations which presently, or in the near future, enable the employee to
perform the essential functions of his job.â Id. at 1129 (emphasis in original). And
â[w]ithout an expected duration of an impairment, an employer cannot determine
whether an employee will be able to perform the essential functions of the job in the
near future . . . .â Id. (emphasis in original).
The City takes a strict view of this standard: because Herrmannâs medical
providers requested leave through November 30 without providing a definite
end-date of her impairment, Herrmann only provided evidence of the duration of her
leave request, not the duration of her impairment. But we do not construe the
duration requirement so narrowly, and certainly would not do so in chronic
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impairment cases like this one. See Aubrey v. Koppes, 975 F.3d 995, 1011 (10th Cir.
2020). Herrmann provided evidence of the expected duration of her impairment in
August 2014, when Klein estimated that the probable duration of Herrmannâs
condition was three to six months. Klein further indicated that with weekly
treatments for eight weeks it was â[his] hope that Ms. Herrmann will be able to return
to work at some point . . . after treatment.â Id. at 362. While these statements were
made in conjunction with requests for FMLA leave, and not requests for ADA
accommodations, Klein later referred to âenough time offâ so that Herrmannâs PTSD
symptoms could subside before returning to work. Id. at 375. Taken together, these
statements informed the City of the expected end-date of Herrmannâs current bout of
PTSD symptoms and the date she would likely be able to return to work.
Statements made by medical providers in the months leading up to a request
for leave are relevant in determining whether a request was reasonable. See Aubrey,
975 F.3d at 1011. In Aubrey, as here, the plaintiff had a chronic condition and provided an estimated date of return to work that was tied to an expected recovery timeline.Id.
Moreover, this case is distinguishable from the cases the City relies upon. In Cisneros, we concluded that an employeeâs request for a finite amount of leave was not reasonable where the duration of the employeeâs illness was both âuncertainâ and âunknown.â226 F.3d at 1130
. In Hudson v. MCI Telecommunications Corp.,87 F.3d 1167, 1169
(10th Cir. 1996), the plaintiff did not
provide an end date for her impairment and her doctorâs notes indicated her prognosis
was uncertain. And in Punt, the plaintiff âwas very vague about how much time
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she . . . was going to miss.â 862 F.3d at 1051. Instead, this case is more like Rascon v. US West Communications, Inc.,143 F.3d 1324, 1334
(10th Cir. 1998), overruling on other grounds recognized by Aubrey,975 F.3d 995
, where we determined that an
employeeâs request for time to attend a four-month treatment program for his
disability was reasonable because âthe prognosis from [his] doctors was goodâ and
âthe program was very likely to improve [his] work and home life by assisting him to
cope with his [PTSD].â
In chronic impairment cases, ongoing exchanges between employers and
employees are likely to start with discussion of FMLA leave and morph into
discussion of ADA accommodations. It is also likely that an estimate of when
symptoms will subside and allow return to work is the best an employee or medical
provider can offer, given that chronic conditions can last a lifetime. Moreover, an
employee on leave due to a chronic condition may have limited ability to respond to
an employer, and an employer will have to consider multiple communications from
the employee and the employeeâs medical providers together when determining
whether a request for leave is unreasonable or indefinite.
Here, Herrmann provided an expected end date for her leave request and
indicated that the proposed return date was tied directly to her recovery. Viewing the
facts in the light most favorable to Herrmann, she provided an expected end date of
her impairment. Nothing about Herrmannâs condition or expected recovery timeline
changed in the interim. The request for leave was therefore not indefinite and, for
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summary judgment purposes, was plausibly reasonable. The district court erred in
determining otherwise.
B
The district court did not err in granting summary judgment on Herrmannâs
disability discrimination claim.
To survive summary judgment, Herrmann must raise a genuine dispute of fact
on each element of her prima facie case. See Hawkins v. Schwanâs Home Serv., Inc.,
778 F.3d 877, 883(10th Cir. 2015). Specifically, she must show an issue of fact that â(1) [s]he was a disabled person as defined by the [ADA]; (2) [s]he was qualified, with or without reasonable accommodation, to perform the essential functions of h[er] job; and (3) [s]he was fired because of h[er] disability.âId.
(quoting Carter v. Pathfinder Energy Servs., Inc.,662 F.3d 1134, 1142
(10th Cir. 2011)). The City does
not challenge that Herrmann was disabled or qualified.
To show that she was fired because of her disability, Herrmann must âpresent
some affirmative evidence that disability was a determining factor in the employerâs
decision.â Morgan v. Hilti, Inc., 108 F.3d 1319, 1323(10th Cir. 1997). Therefore, Herrmann âmust prove that the [City] acted with a discriminatory animus against her because she had a disabilityâ when it terminated her employment. Aubrey,975 F.3d at 1014
. A plaintiff may prove discriminatory animus through either direct or circumstantial evidence, the latter of which is analyzed under the McDonnell Douglas burden-shifting framework. Tesone v. Empire Mktg. Strategies,942 F.3d 979, 995
(10th Cir. 2019).
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Before the district court, Herrmann staked her entire claim on direct evidence
and expressly disavowed the McDonnell Douglas framework as inapposite. See JA at
515. The district court rejected her direct evidence argument. Now, she renews that
argument and also attempts to argue that circumstantial evidence supports her claim.
Herrmann suggests that we can consider circumstantial evidence because the district
court addressed the circumstantial evidence issue. We cannot pursue that approach
because the district court never applied âthe relevant law to the relevant facts.â
Tesone, 942 F.3d at 992. The district courtâs only mention of circumstantial evidence
was in its conclusion that âHerrmann offers no valid direct or circumstantial evidence
of discrimination.â JA at 944. These few words merely indicate the obvious: that
Herrmann did not offer circumstantial evidence of discriminatory animus.3 We
therefore consider only Herrmannâs direct evidence arguments.
Direct evidence of discriminatory animus is rare. If believed, direct evidence
âprove[s] the existence of a fact in issue without inference or presumption,â such as
an employerâs facially discriminatory policy or an oral or written statement showing
a discriminatory motive. Tesone, 942 F.3d at 995. Herrmann contends that the Notice
she received amounts to direct evidence of disability discrimination. Aplt. Br. at 46â
48. The Notice says that Herrmannâs âinability to return to work is involuntary for
3
Even if Herrmann were correct that the district court addressed this issue, she
now ignores her burden of establishing an inference of discriminatory animus, only
arguing the Cityâs proffered nondiscriminatory reason for her firing was pretextual.
She cannot gain the benefit of an inference of discrimination without first
establishing that inference. See Adamson v. Multi Cmty. Diversified Servs., Inc., 514
F.3d 1136, 1144 (10th Cir. 2008).
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medical reasons,â and Herrmann points to this language as direct evidence that she
was terminated because of her disability. JA at 428. But the Notice is benign. It
simply states that Herrmann was separated from her employment because she
exhausted her FMLA leave and was unavailable to return to work. Nothing in the
Notice demonstrates how Herrmannâs PTSD resulted in her being treated differently
from other employees who exhausted available leave. In context, it is clear that this
reference was not direct evidence of discriminatory animus, instead it advised
Herrmann of an avenue to accommodation: âSince your inability to return to work is
involuntary for medical reasons, this memorandum is notice of a proposed action
which may affect your employment and gives you an opportunity to present
alternatives.â JA at 428.
This situation is unlike those presented in the cases that Herrmann cites where
a plaintiffâs disability was the sole reason expressed for the termination. See Monette
v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187(6th Cir. 1996) (âThe defendantâs explanation for the decision to replace Monette was that Monette was on medical leave, unable to perform the job under any circumstances, and that, because only one customer service representative was employed in the building, the need to replace Monette was urgent.â); Lovell v. Champion Car Wash, LLC,969 F. Supp. 2d 945, 951
(M.D. Tenn. 2013) (finding direct evidence of discrimination where letter stated
employee was âterminated for medical reasons, and that his medical reasons cannot
be accommodatedâ). The one case Herrmann cites that supports her position, White v.
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Nucor Corp., 148 F. Supp. 3d 1316 (D. Utah 2015), fails to cite precedent from this
circuit and does not provide extensive analysis.
In short, the Notice is not direct evidence that the City terminated Herrmannâs
employment because of her PTSD. Without more, Herrmann fails to show direct
evidence of discriminatory animus.
C
The district court did not err in granting summary judgment on Herrmannâs
retaliation claim.
Herrmann does not offer direct evidence of retaliation. Instead, she claims to
offer circumstantial evidence. Accordingly, the McDonnell Douglas framework
applies to her retaliation claim. See Foster v. Mountain Coal Co., LLC, 830 F.3d
1178, 1186(10th Cir. 2016). First, Herrmann must present a prima facie case of retaliation by demonstrating that she (1) engaged in protected activity; (2) suffered a material adverse action; and (3) a causal connection exists between the protected activity and the adverse action. Seeid.
at 1186â87. The burden then shifts to the City to present a legitimate, nondiscriminatory reason for the adverse action. Seeid. at 1186
. The burden finally shifts back to Herrmann to show the Cityâs nondiscriminatory reason is pretext. Seeid.
The parties do not dispute the first two elements of Herrmannâs prima facie
case. And given that âa one and one-half month period between protected activity and
adverse action may, by itself, establish causation,â Anderson v. Coors Brewing Co.,
181 F.3d 1171, 1179 (10th Cir. 1999), the district court assumed (as do we) that
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Herrmann met her prima facie case since she engaged in protected activity within six
weeks of her termination on November 14, 2014âspecifically, her October 7, 2014
request for reassignment and time off, and her November 12, 2014 request for time
off. See JA at 949. Nevertheless, the district court held that Herrmann failed to show
that the Cityâs legitimate, non-retaliatory rationale for terminating Herrmannâs
employment was pretextual. We agree.
â[A] plaintiff demonstrates pretext by showing either that a discriminatory
reason more likely motivated the employer or that the employerâs proffered
explanation is unworthy of credence.â Foster, 830 F.3d at 1194(quoting Zamora v. Elite Logistics, Inc.,478 F.3d 1160, 1166
(10th Cir. 2007)). âIn establishing pretext, an employee can show the employerâs proffered reason was so inconsistent, implausible, incoherent, or contradictory that it is unworthy of belief.âId.
(quoting Piercy v. Maketa,480 F.3d 1192, 1200
(10th Cir. 2007)).
The Cityâs legitimate, non-retaliatory reason for ending Herrmannâs
employment was that she exhausted all available medical leave and did not provide a
medical release to return to work by November 13, 2014, the day her leave expired.
Herrmann offers two arguments that this rationale was pretextual. Neither are
persuasive.
First, she contends that the City did not need her immediate return to work
because it would take six to eight weeks to fill her position. Aplt. Br. at 54. But this
says nothing about whether the City actually terminated Herrmannâs employment in
retaliation for her requests for accommodation. See Aubrey, 975 F.3d at 1016.
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Second, Herrmann claims that the Cityâs refusal to allow her to return to work
is evidence of pretext. But when the City terminated her employment, Herrmann had
not provided a medical release to return to work. Therefore, at the time of the
decision, the City had no idea whether Herrmann could return to work. The Cityâs
refusal to allow her to return to work when she came to work the Monday after her
termination may have been unfair or an example of âpoor business judgment,â but
such circumstances are ânot sufficient to show that the employerâs explanation is
unworthy of credibility.â Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1307(10th Cir. 2017) (quoting Simmons v. Sykes Enters., Inc.,647 F.3d 943, 948
(10th Cir. 2011)).
In short, nothing in the record suggests that the City acted with a retaliatory animus
when it terminated Herrmannâs employment.
III
For the forgoing reasons, the district courtâs grant of summary judgment to the
City on Herrmannâs failure to accommodate claim is REVERSED and REMANDED
for further proceedings, and its grant of summary judgment to the City on
Herrmannâs claims for disability discrimination and retaliation is AFFIRMED.
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