FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 7, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court JIMMY GARDENHIRE,
Plaintiff - Appellant,
v. No. 17-3048 (D.C. No. 5:15-CV-04914-DDC) JOHNS MANVILLE, (D. Kan.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BALDOCK, KELLY, and O’BRIEN, Circuit Judges. _________________________________
In this employment discrimination case, Jimmy Gardenhire appeals from a district
court order that granted summary judgment to his employer, Johns Manville (JM).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
In 2007, Gardenhire began working as a machine attendant for JM, a manufacturer
of fiberglass insulation. JM eventually promoted Gardenhire to an inspector-packer
position, which required that he “[p]repare, remove, pack, scrap or otherwise dispose
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. of[ ] all [insulation] material coming from the [production line].” Aplt. App., Vol. I at
144. These activities involved manually picking up and moving insulation items “all day
long.” Aplee. Supp. App. at 73.
In December 2012, Gardenhire broke his left elbow while ice skating. An
orthopedic surgeon imposed work restrictions of one-handed jobs only and no
left-handed lifting for four weeks. Consequently, Gardenhire began taking FMLA leave
and short-term disability leave. After Gardenhire’s FMLA leave expired, his doctor,
James Bogener, M.D., provided a medical note dated April 17, 2013, extending the
restrictions for six more weeks. On June 5, 2013, Dr. Bogener again extended
Gardenhire’s restrictions for six weeks.
After the short-term disability coverage ended on June 29, Gardenhire sought
permanent and total disability benefits from JM’s insurer. On the disability application,
Gardenhire indicated he could not work because, among other things, elbow weakness
prevented him from lifting insulation rolls and pulling them apart. Dr. Bogener
submitted an attending-physician statement, stating that Gardenhire was restricted to
one-handed jobs through at least August 7, pending a re-evaluation of Gardenhire’s
status. The insurer denied Gardenhire’s application.
On July 29, 2013, JM’s regional human-resources manager, Shirley Vawter, sent
Gardenhire a letter, seeking information about his return to work. She noted that his
“leave [had] continued to be extended several times until the now current expected return
to work date of August 8, 2013,” and that further medical information was needed “to
determine what further reasonable accommodations [JM could] offer.” Id. at 153. She
2 instructed Gardenhire to “discuss with [his] physician [his] day to day [job]
responsibilities,” id. at 153, and she attached to the letter various forms, including a
“Request for Medical Information for Reasonable Accommodation,” id. at 156.
On August 9, Dr. Bogener completed the reasonable-accommodation form, stating
that Gardenhire could perform “[o]ne handed job[s] only, [with] no lifting [using] the left
hand.” Id. at 232. Dr. Bogener indicated he would re-assess Gardenhire’s condition on
August 21. Id. On that date, Dr. Bogener completed another work-restrictions note,
stating that Gardenhire could perform only “one-handed job[s] [requiring] no lifting with
the left hand for six [more] weeks.” Aplt. App., Vol. I at 158.
Vawter considered whether JM could reasonably accommodate Gardenhire’s
restrictions, but ultimately concluded no reasonable accommodation was available. She
then decided to terminate Gardenhire, effective August 30, 2013.
Nearly eight months later, in April 2014, Gardenhire contacted Dr. Bogener and
requested a full work release, retroactive to September 1, 2013. “[B]ased on the
information Mr. Gardenhire provided, [Dr. Bogener] signed a return to work form
indicating Mr. Gardenhire felt he was ready to return to work on September 1, 2013.”
Aplee. Supp. App. at 165.
Gardenhire administratively challenged his termination and then sued JM in
federal court. He advanced claims under the Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12101-12213; the Family Medical Leave Act (FMLA), 29 U.S.C.
§§ 2601-2654; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
3 2000e-17. JM successfully moved for summary judgment on all of Gardenhire’s claims.1
Gardenhire now appeals.
DISCUSSION I. Standards of Review
We review a district court’s grant of summary judgment de novo. Emcasco Ins.
Co. v. CE Design, Ltd., 784 F.3d 1371, 1378 (10th Cir. 2015). In doing so, we “view the
factual record and make reasonable inferences therefrom in the light most favorable to
the party opposing summary judgment.” Id. (internal quotation marks omitted). “We
will uphold the district court’s grant of summary judgment only if ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Id. (quoting Fed. R. Civ. P. 56(a)).
II. ADA Claim
The ADA requires employers to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability,”
unless “the accommodation[s] would impose an undue hardship.” 42 U.S.C.
§ 12112(b)(5)(A). When a claim alleging a violation of the ADA is based on
circumstantial evidence, we apply the familiar McDonnell Douglas2 burden-shifting
framework. Williams v. FedEx Corp. Servs., 849 F.3d 889, 896 (10th Cir. 2017). Under
1 Gardenhire argues that the district court entered summary judgment on issues not raised by JM. We disagree. JM’s summary-judgment motion adequately targeted all of the issues identified in the district court’s pretrial order, which “supersede[d] the pleadings and control[ed] the subsequent course of litigation,” Hullman v. Bd. of Trs. of Pratt Cmty. Coll., 950 F.2d 665, 667 (10th Cir. 1991). 2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). 4 that framework, a plaintiff must first establish a prima facie case of discrimination by
showing that: “(1) he is disabled (or perceived as disabled) as defined by the ADA,
(2) he is qualified to perform the essential functions of his job with or without reasonable
accommodation, and (3) he suffered discrimination as a result of his disability.” Id.
(internal quotation marks omitted). The failure to provide reasonable accommodations
constitutes disability discrimination under the ADA. Smith v. Midland Brake, Inc.,
180 F.3d 1154, 1178 n.12 (10th Cir. 1999) (en banc). As we explain below, Gardenhire’s
ADA claim fails the second prong of the prima-facie test.
A. Essential Functions
Gardenhire argues that his medical restriction on lifting with his left arm did not
prevent the performance of his job’s essential functions.
Evidence of whether a particular function is essential to a job includes (but is not necessarily limited to) (1) the employer’s judgment as to which functions are essential, (2) written job descriptions prepared before advertising or interviewing applicants for the job, (3) the consequences of not requiring the incumbent to perform the function, and (4) the current work experience of incumbents in similar jobs. Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 887 (10th Cir. 2015) (internal
quotation marks omitted).
JM contends that lifting with both arms is an essential function of the
inspector-packer position. We agree. The written job description for the
inspector-packer position states that the employee must “remove . . . all material coming
from the machine” and “[s]et aside defective material.” Aplt. App., Vol. I at 144.
Gardenhire testified that the removal of materials, which typically weigh between “25 to
5 55 pounds,” Aplee. Supp. App. at 21, was accomplished by “grab[bing] them” and
“lift[ing] them” with his “arms,” Aplt. App., Vol. I at 148. Although he could sometimes
use just one arm, the job at other times “required [him] to use two hands . . . to be able to
lift some material from one area to the next” and to “throw it to another location.” Aplee.
Supp. App. at 22. We conclude that no reasonable jury could find that Gardenhire was
able to perform the essential functions of his job using just one arm.
B. Reasonable Accommodations
“The determination of whether a requested accommodation is reasonable must be
made on the facts of each case taking into consideration the particular individual’s
disability and employment position.” Punt v. Kelly Servs., 862 F.3d 1040, 1050
(10th Cir. 2017) (internal quotation marks omitted). “[A]n employee’s request to be
relieved from an essential function of [his] position is not, as a matter of law, a
reasonable or even plausible accommodation.” Id. at 1051 (internal quotation marks
omitted).
Gardenhire argues JM should have accommodated his injury by “providing him
additional leave beyond August 30, 2013,” his termination date. Aplt. Opening Br. at 34.
He stresses that Dr. Bogener released him to work without any restrictions just two days
later. Although “a reasonable allowance of time for medical care and treatment may, in
appropriate circumstances, constitute a reasonable accommodation,” an employer “[i]s
not required to wait indefinitely for [the employee’s] recovery.” Hudson v. MCI
Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996). JM allowed Gardenhire eight
months of continuous leave before finally terminating him. Gardenhire does not cite any
6 evidence that he notified JM contemporaneously to his termination that Dr. Bogener had
removed his work restrictions. Indeed, Dr. Bogener did not execute the medical-release
form until April 2014—nearly eight months after JM terminated Gardenhire.3 No
reasonably jury could find that JM failed to reasonably accommodate Gardenhire’s
injury.
C. 100%-Healed Policy
Gardenhire suggests he need not establish a prima facie case because he has
direct evidence of discrimination. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n.3
(10th Cir. 1997) (stating that “[i]f the employer admits that the disability played a
prominent part in the decision, or the plaintiff has other direct evidence of
discrimination based on disability, the burden-shifting framework may be
unnecessary and inappropriate”). Specifically, he claims that JM requires employees
to be 100% healed before allowing them to resume work. Granted, such policies are
considered discriminatory because they “permit[ ] employers to substitute a
determination of whether a qualified individual is 100% healed from their injury for
3 In an attempt to show he was in fact released to work on September 1, 2013, Gardenhire points to a Kansas Department of Labor form purportedly signed by Dr. Bogener. On the form, which is dated October 9, 2013, a box is checked indicating that Gardenhire “[w]as able to return to full-time work on . . . 9/1/13.” Aplt. App., Vol. I at 234. But nothing on the form indicates that Gardenhire obtained a medical release before April 2014. Nor does Gardenhire explain when, or even if, he provided this form to JM. More troubling is Dr. Bogener’s affidavit testimony casting doubt on the form’s authenticity. See Aplee. Supp. App. at 165 (Dr. Bogener stated that he filled out a Department of Labor form on September 10, 2013, which provided that “Gardenhire was unable to work and that he was restricted to performing one handed jobs only as he could not lift with his left hand.” (emphasis added)). 7 the required individual assessment whether the qualified individual is able to perform
the essential functions of his or her job either with or without accommodation.”
McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999)
(internal quotation marks omitted); see also Martin v. Kansas, 190 F.3d 1120,
1134-35 (10th Cir. 1999), overruled on other grounds, Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 373-74 (2001).
But there are two problems with Gardenhire’s position. First, he has not raised
a triable issue as to whether JM has such a policy. To show the existence of
100%-healed policy, Gardenhire cites the deposition testimony of a human-resources
associate, Janet Duerksen. She testified: “As far as I know, we have never allowed
an hourly employee to return [to work] with restrictions.” Aplt. App., Vol. I at 168.
The district court found this testimony entirely speculative. We agree. When
asked about her role in applying “company rule[s], polic[ies], or practice[s],”
Duerksen said she “just . . . ma[de] the appropriate phone calls,” provided phone
numbers, and referred employees’ injury-related issues to Vawter (JM’s regional
human-resources manager). Id. at 165; see also id. at 187. Indeed, Duerksen
characterized her job as “clerical” in nature when it came to “leave and benefits and
accommodations.” Id. at 187. Further, Duerksen provided contradictory testimony
about whether JM allows employees to return to work with restrictions: “I believe
when there’s a worker comp injury, [JM] sometimes allows [employees] to work with
some restrictions.” Id. at 186.
8 Given that Duerksen served as little more than a conduit between employees
and Vawter, her testimony about the existence or extent of JM’s personnel policies is
not sufficient to create a triable issue of fact about a 100%-healed policy. See Bones
v. Honeywell Int’l, Inc., 366 F.3d 869, 876 (10th Cir. 2004) (“Testimony which is
grounded on speculation does not suffice to create a genuine issue of material fact to
withstand summary judgment.”); Thomas v. Int’l Bus. Machs., 48 F.3d 478, 485
(10th Cir. 1995) (Testimony that would be inadmissible at trial—because it is not
based on personal knowledge, or because it constitutes hearsay—cannot defeat a
summary judgment motion.). Moreover, it is undisputed that in July 2013, Vawter
attempted to ascertain from Gardenhire whether there were any “reasonable
accommodations” that might allow him to return to work. Aplee. Supp. App. at 153.
Such an attempt is inconsistent with the existence of a 100%-healed policy.4
Second, a 100%-healed policy “cannot give rise to a finding of liability and relief
under the ADA without the statutorily required inquiry into whether those affected by
[the] policy are disabled and able to perform the essential functions of the jobs they seek
or desire with or without reasonable accommodation.” Hohider v. United Parcel Serv.,
Inc., 574 F.3d 169, 195 (3d Cir. 2009). As discussed above, Gardenhire has not shown a
triable issue as to whether he could perform the essential functions of his job with or
4 The evidence of Vawter’s accommodation attempt also forecloses Gardenhire’s assertion that JM “does not have an interactive process, procedure, protocol, practice or rule,” Aplt. Opening Br. at 30; see Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1315 (10th Cir. 2017) (“To facilitate the reasonable accommodation, the federal regulations implementing the ADA envision an interactive process that requires participation by both parties.” (brackets and internal quotation marks omitted)). 9 without a reasonable accommodation. Thus, whether or not JM had a 100%-healed
policy has no bearing on Gardenhire’s ADA claim. See, e.g., Moore v. Jackson Cty. Bd.
of Educ., 979 F. Supp.2d 1251, 1266 (N.D. Ala. 2013).
III. FMLA Claims A. Retaliation
“The FMLA entitles qualifying employees to take up to twelve weeks of unpaid
leave, without fear of termination for a serious health condition.” Dewitt, 845 F.3d at
1318 (brackets, ellipsis, and internal quotation marks omitted). “[I]t is unlawful for an
employer to retaliate against an employee for taking FMLA leave.” Id. (internal
Without direct evidence of retaliation, Gardenhire must “establish[ ] a prima facie
case of retaliation[ ] by proving that (1) [ ]he engaged in a protected activity; (2) [JM]
took an action that a reasonable employee would have found materially adverse; and
(3) there exists a causal connection between the protected activity and the adverse
action.” Id. (internal quotation marks omitted). The district court concluded Gardenhire
failed to show causation. Specifically, Gardenhire’s FMLA leave expired by April 2013,
but JM did not take any adverse action against him until August 30, 2013, when it fired
him. As the district court noted, a nearly five-month gulf between the expiration of
FMLA leave and an adverse employment action is insufficient to establish causation. See
Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (holding that a three
month period, standing alone, is too long to infer causation from temporal proximity).
With no other causal evidence, the district court determined that summary judgment was
10 appropriate. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)
(“[U]nless the termination is very closely connected in time to the protected activity, the
plaintiff must rely on additional evidence beyond temporal proximity to establish
causation.”).
On appeal, Gardenhire does not address the district court’s causal determination.
He has, thus, waived any challenge to that determination. See Utahns for Better Transp.
v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) (“[I]ssues will be deemed
waived if they are not adequately briefed.”). In any event, we have reviewed the district
court’s determination, and we conclude that summary judgment was appropriate on his
FMLA retaliation claim.
B. Interference
Gardenhire asserts that JM’s “100% healed practice . . . interfered with [his] right
to be restored to his position during the initial 12 weeks of his leave.” Aplt. Opening Br.
at 45. To establish a prima facie case of FMLA interference, Gardenhire must show that
(1) he was entitled to FMLA leave, (2) JM took some adverse action that interfered with
his right to take FMLA leave, and (3) this adverse action was related to the exercise or
attempted exercise of his FMLA rights. See Metzler v. Fed. Home Loan Bank of Topeka,
464 F.3d 1164, 1180 (10th Cir. 2006). Employees who take FMLA leave are entitled,
upon their return, to be restored to the job they held when the leave commenced or to be
restored to an equivalent job with equivalent benefits, pay, and other employment terms
and conditions. See 29 U.S.C. § 2614(a)(1).
11 The district court concluded that Gardenhire’s interference claim failed the
adverse-action prongs of a prima facie case. Specifically, the district court observed that
when JM fired Gardenhire, he had no right to reinstatement because his FMLA leave had
expired almost five months earlier. Although the district court’s observation is accurate,
we conclude that summary judgment was appropriate on this claim because (1) as we
noted earlier, Gardenhire has not shown a triable issue as to whether JM even had a
100%-healed policy; and (2) even if such a policy existed, the FMLA allows an
“employer to have a uniformly applied practice or policy that requires each such
employee to receive certification from the health care provider of the employee that the
employee is able to resume work.” Id. § 2614(a)(4). Thus, summary judgment was
appropriately granted on Gardenhire’s FMLA interference claim.
IV. Title VII Claim
Gardenhire contends that “Caucasian employees were promoted before him,” were
assigned less difficult jobs, and were supervised less “oppressively.” Aplt. Opening Br.
at 47. Title VII prohibits an employer from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). Generally, to make out a prima facie case of discrimination, an
employee must show (1) membership in a protected class; (2) an adverse employment
action; and (3) that the challenged action took place under circumstances giving rise to an
inference of discrimination. EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007).
“One of the ways [the] third prong may be met . . . is by attempting to show that the
12 employer treated similarly situated employees differently.” Jones v. Denver Post Corp.,
203 F.3d 748, 753 (10th Cir. 2000).
The district court concluded that Gardenhire’s prima-facie case failed at the third
prong because the two Caucasian employees he identified as receiving better treatment—
Jimmy Yianakopulos and Lonnie Kent—were not similarly situated in material respects.
On appeal, Gardenhire does not address the district court’s conclusion. He has, thus,
waived any challenge to the district court’s conclusion. See Utahns for Better Transp.,
305 F.3d at 1175.
Instead, Gardenhire cites his affidavit statements that (1) “[t]he other black
employees of [JM] . . . all discussed with me how they were put in the most difficult jobs,
were treated less favorably than Caucasian employees and were oppressively
supervised”; and (2) “[JM] refused to accommodate [another black employee] and fired
him.” Aplt. App., Vol. I at 142. But these affidavit statements are wholly insufficient to
avoid summary judgment. See Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184,
1201-02 (10th Cir. 2015) (observing that inadmissible hearsay statements cannot defeat
summary judgment and that “conclusory and self-serving affidavits” carry no weight
(internal quotation marks omitted)).
CONCLUSION
The judgment of the district court is affirmed. Entered for the Court
Bobby R. Baldock Circuit Judge