Willett v. State of Kansas

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 25, 1997
• Docket: 96-3374
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 25 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

JULIANNE E. WILLETT,

Plaintiff-Appellant,

v. No. 96-3374 (D.C. No. 95-CV-4052) STATE OF KANSAS, (D. Kan.)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** The Honorable William F. Downes, District Judge, United States District Court for the District of Wyoming, sitting by designation. Plaintiff Julianne E. Willett appeals from an order of the district court

granting defendant’s motion for summary judgment in this action brought

pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and

the Rehabilitation Act, 29 U.S.C. §§ 701-797b. 1 See Willett v. Kansas, 942

F. Supp. 1387 (D. Kan. 1996). We affirm.

The parties are familiar with the facts and we will not repeat them here

other than as necessary to our disposition. Ms. Willett was employed as a

Licensed Practical Nurse by defendant at the Kansas Neurological Institute. She

was diagnosed with lupus erythematosus. To enable her to perform her job, she

requested a lightweight cart for passing medications and a transfer to a unit which

required less walking than the unit to which she was currently assigned.

On appeal, Ms. Willett argues that she is a “qualified individual with a

disability” and, with accommodation, she can perform the essential functions of

her job. 42 U.S.C. § 12111(a); see also White v. York Int’l Corp., 45 F.3d 357,

360 (10th Cir. 1995). She asserts her requested accommodations were reasonable

and her supervisor’s one-time offer of a transfer did not release defendant from

all subsequent duties to consider her request for reasonable accommodation.

1 Ms. Willett raises no issues on appeal regarding the district court’s disposition of her claims under the Rehabilitation Act.

-2- We review de novo the district court's grant of summary judgment,

employing the same legal standard as used by the district court. See Williams v.

Widnall 79 F.3d 1003, 1005 (10th Cir. 1996).

In the pretrial order, Ms. Willett stipulated that she had received a

lightweight cart and that she had been offered a transfer to another unit which she

refused. Parties are bound by their pretrial stipulations. See Mills v. State Farm

Mut. Auto. Ins. Co., 827 F.2d 1418, 1422 (10th Cir. 1987). We will not address

arguments challenging stipulations which are clear and unambiguous, and which

are neither improvident nor result in manifest injustice. Id. Ms. Willett contends

her stipulation was not clear and unambiguous because she was not initially

offered a permanent cart and because the unit to which she refused transfer, in her

opinion, required more walking.

If an individual rejects a reasonable accommodation and, therefore, cannot

perform the essential functions of the job, that “individual will not be considered

a qualified individual with a disability.” 29 C.F.R. § 1630.9(d). We agree with

the district court that it is immaterial whether Ms. Willett was initially offered a

temporary or permanent lightweight cart. We also agree that Ms. Willett failed to

present material evidence contesting defendant’s assertion that the unit to which

she was offered a transfer would offer less walking than the one on which she

-3- currently worked. 2 See White, 45 F.3d at 360 (conclusory allegations will not

defeat “properly supported motion for summary judgment”).

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

2 We admonish counsel not to alter documents submitted on appeal in order to present evidence in a more favorable light than it appeared to the district court. We note that the alterations made here are conclusory and would not support a reversal in this case, even were we to consider them.

-4-