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Exby-Stolley v. Board of County Commissioners, Weld County, Colorado

United States Court of Appeals, Tenth Circuit

October 11, 2018

LAURIE EXBY-STOLLEY, Plaintiff - Appellant,

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:13-CV-01395-WYD-NYW)

          Jason B. Wesoky (Bruce G. Smith, with him on the briefs), Darling Milligan PC, Denver, Colorado, for Plaintiff-Appellant.

          Alan Epstein (Thomas J. Lyons, Mark S. Ratner, and Matthew J. Hegarty, with him on the brief), Hall & Evans, L.L.C., Denver, Colorado, for Defendant-Appellee.

          Before HARTZ, KELLY, and HOLMES, Circuit Judges.


         Plaintiff Laurie Exby-Stolley sued her former employer, the Board of County Commissioners of Weld County, Colorado (the County), under the Americans with Disabilities Act (ADA) in the United States District Court for the District of Colorado. She alleged that the County had failed to accommodate her disability, resulting in the loss of her job. The jury returned a verdict for the County. She appeals, claiming three errors in her trial: (1) the district court improperly instructed the jury that she needed to prove she had suffered an adverse employment action; (2) the district court refused to instruct the jury on a claim of constructive discharge or allow her to argue constructive discharge in closing argument; and (3) the district court misallocated the burden of proof in its undue-hardship jury instruction.

         Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. First, an adverse employment action-that is, a materially adverse decision regarding "application procedures, . . . hiring, advancement, . . . discharge, . . . compensation, . . . training [or] other terms, conditions, and privileges of employment," 42 U.S.C. § 12112(a)-is an element of all discrimination claims under the ADA, including those based on the failure to accommodate a disability. Second, Plaintiff's request for a constructive-discharge instruction was untimely. And finally, any error in the undue-hardship instruction was harmless because the jury instruction was irrelevant to the ground on which the jury rejected her claim.

         I. BACKGROUND

         Plaintiff worked as a health inspector for the County. Her job required her to inspect restaurants, bars, and other places that handle food, interview employees, and observe safety practices. While on the job in late 2009, she broke her right arm. This required prolonged treatment, including two surgeries, the second of which was in November 2011. Because of her injury, she had to use makeshift devices to assist her in her tasks, such as lifting, moving, and opening objects, and she had to learn to write using her left hand. The inspections therefore took her longer than before, and she could not complete the number of inspections required of those in her position.

         There are two rather different versions of efforts to accommodate these impairments: Plaintiff's version and the version presented by the County. We begin with Plaintiff's version. In March 2012 she received a poor performance evaluation because of various issues, including being behind in her work. To explain her difficulty, she spoke to her two supervisors, Sara Evans and Deb Adamson. Adamson said she could not modify Plaintiff's workload without an evaluation from her doctor, so Plaintiff, worried about her job, went to her worker's-compensation doctor. The doctor prepared a report setting forth restrictions on her activity and sent it to Michelle Raimer, a human-resources analyst for the County. After reviewing the doctor's report, Adamson asked Plaintiff for a list of physical activities that had been a problem for her. Plaintiff requested a meeting with someone from human resources to discuss accommodations so that she could keep her job, and she then met with Adamson and Raimer. At the meeting Raimer said that human resources had never come up with accommodations for someone in Plaintiff's position. Raimer then arranged for Plaintiff to begin working in April at a part-time office job, which Plaintiff understood would be a temporary assignment. Plaintiff did not like the work. In May, Trevor Jiricek (to whom Evans and Adamson reported) asked her why she simply did not go on disability. Jiricek expressed anger when she said that she did not want to go on disability.

         Plaintiff returned to her worker's-compensation physician on June 6. On that visit he established what her permanent restrictions would be. Plaintiff requested another meeting with Raimer and Adamson to discuss accommodations. The meeting was held on June 19. Attending were Plaintiff, Adamson, Jiricek, and a physician. Plaintiff suggested various accommodations at the meeting, but her suggestions were rejected, and the others did not offer her alternative accommodations. As she and Jiricek were leaving the meeting he asked her if she wanted to write a letter of resignation herself or have him do it, and she felt that she was being told to resign. The two of them then went to Raimer's office, where they discussed when her last day of work would be. They looked at job openings with the County, but there was nothing besides janitorial work that she was qualified for. Raimer raised the possibility of long-term disability, but that would not have allowed Plaintiff to return to her job without reapplying if she recovered. Jiricek then left and Raimer provided some paperwork to Plaintiff. On June 21, Plaintiff sent an email to all her colleagues informing them that she would no longer be working for the County effective June 29. The email included the sentence, "After a final evaluation with the physician and meeting with management it is apparent I am no longer able to perform the duties required in [my] job description." Supp. App. at 158.

         Raimer had a different account of what happened before the June 19 meeting. She testified that before Plaintiff saw her worker's-compensation physician in March 2012, she had complained to Adamson about pain she was suffering when performing her duties and that Adamson had requested Plaintiff to prepare a list of the problematic duties so they could try to find a solution. Plaintiff would also call Raimer about her pain, and Raimer similarly asked to have information about specific tasks so she could be helpful. When Raimer received the physician's report, she discussed the matter with Adamson and tried to come up with ideas, such as reducing Plaintiff's shift or her time in the field performing duties that caused pain. Adamson and Raimer then met with Plaintiff. After discussing some alternatives, Raimer suggested working half-time in the office. Such a temporary modified duty required the employee's consent, and Plaintiff agreed. Raimer kept informed about how Plaintiff was doing, but Plaintiff did not request any further accommodations. Plaintiff did, however, raise a question about what would happen if she received permanent restrictions from the doctor, and Raimer responded that they would have to see if there were any such restrictions and what they were.

         Jiricek testified about the June 19 meeting attended by Plaintiff, Adamson, and a County physician. According to his testimony, Plaintiff requested that a new position be created for her by piecing together from her job and other positions various tasks that she could perform. But he told her that other employees were already doing the duties of the new job she suggested for herself, and that it would not be fair or workable to take lighter tasks from her fellow employees to cobble together a new position for her. As he understood her response, she said in essence that if the County "couldn't provide her that very specific job, that she couldn't do the job." Aplt. App., Vol. IV at 835. He was "absolutely surprised" at her response. Id. at 836. He met with her again about 20 minutes after the meeting to ask what she had meant, and she indicated that she was resigning. So he asked her if she needed help writing her resignation letter, but she declined his offer.

         About two hours later, Jiricek and Plaintiff went to speak with Raimer. Jiricek testified that he did not recall any discussion of resignation at the meeting. He said they discussed accommodations, retraining, and other possible positions for Plaintiff; he did not stay for the whole meeting. Raimer testified that they discussed accommodating Plaintiff in her present position, finding other positions for her, and the availability of disability insurance. She showed Plaintiff a few jobs that were currently available, and asked about the tasks of Plaintiff's temporary part-time assignment. Although no concrete decisions were reached in the meeting, Raimer viewed the meeting as part of an interactive process to explore means of accommodating Plaintiff. Because finding a way to accommodate an employee in her present position can take six to eight months, Raimer did not expect this meeting to conclude the search for a reasonable accommodation. Rather, if Plaintiff had not resigned, Raimer would have continued to pursue ideas for accommodating her in her current position and to look for an appropriate job reassignment with the County. Plaintiff's resignation letter a few days later surprised Raimer.

         Patricia Russell, the head of the County's Human Resources Department, was not at the meeting. But she testified that at the time of Plaintiff's resignation, the County was far from terminating her, a process that includes a determination by management, notice to the employee, and a chance for the employee to respond, as well as several appeals options. Not one of these actions had been taken. Instead, Russell testified:

We were still thinking we were in the interactive process . . . . We were still talking to the department to figure out what accommodations could be made. . . . [W]hat accommodations could we make in the county, in another department, other positions coming open where we could place her . . . and she could be successful. What did the employee want to do. . . . We did not have those discussions. When she resigned, . . . we stopped that process because she was leaving.

Trial Tr. 5, ECF No. 241 (Jan. 24, 2017).

         Plaintiff filed suit on May 30, 2013. Her amended complaint (the operative pleading in this case) alleged that the County violated the ADA by failing to reasonably accommodate her disability, failing to engage in the ADA-required interactive process to find an accommodation, and terminating her because her physical restrictions did not allow her to perform all the duties that her original job description included. After a five-day trial the jury, in answer to special interrogatories, found that Plaintiff had "proven by a preponderance of the evidence that she had a disability as defined in the instructions, at the time of the employment actions in question" and that "she is a qualified individual with a disability, as defined in the instructions . . . ." Aplt. App., Vol. II at 419 (answer to special interrogatories 1 and 2 on jury-verdict form). But judgment was entered for the County because the jury further found that Plaintiff had not "proven by a preponderance of the evidence that she was [discharged from employment][not promoted][or other adverse action] by [the County] . . . ." Id. (answer to special interrogatory 3) (brackets in original).[1] The County had argued to the jury that placement of Plaintiff on temporary half-time office duty was not an adverse employment action because she fully agreed with the change and lost no pay (the reduction was offset by workers' compensation payments); and the County took no later action against her because she voluntarily resigned.


         A. Adverse Employment Action

         On appeal Plaintiff first contends that the district court erred in instructing the jury that she had to prove she had suffered an adverse employment action. "We review a district court's decision to give a particular jury instruction for abuse of discretion, but we review de novo legal objections to the jury instructions." Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1154 (10th Cir. 2012) (internal quotation marks omitted).

         We reject Plaintiff's contention because an adverse employment action is an element of a failure-to-accommodate claim. The contrary view appears to derive from two errors: (1) failure to consider the statutory language requiring an adverse employment action and (2) an incorrect belief that the adverse-employment-action requirement is not mandated by statute but is solely a creature of the framework originally established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for proof by circumstantial evidence of employment discrimination under Title VII and now applied to other employment-discrimination statutes. We begin by discussing the meaning of adverse employment action and then describe its role in the McDonnell Douglas framework.

The opening provision of the ADA states the general rule:
No covered entity shall [1] discriminate against a qualified individual on the basis of disability [2] in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment . . . .

42 U.S.C. § 12112(a) (emphasis added). The important feature of this provision for present purposes is that it is not enough to establish only "discrimination . . . on the basis of disability." The discrimination must be "in regard to" certain features of employment. The in-regard-to clause-which, as we shall see, applies to failure-to-accommodate claims-is what requires proof of an adverse employment action.

         True, the language "adverse employment action" does not appear in the ADA. This terminology, however, is well established in judicial opinions. The language of § 12112(a) tracks similar language from Title VII of the 1964 Civil Rights Acts, which prohibits employers from discriminating on the basis of race, color, sex, religion, or national origin "with respect to [an individual's] compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a) (emphasis added). In Title VII cases, when federal courts speak of an "adverse employment action," they are referring to this quoted element of a discrimination claim. As the Seventh Circuit said in Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000) (Posner, J.), "'[A]dverse employment action' . . . is judicial shorthand (the term does not appear in the statutes themselves) for the fact that [employment-discrimination] statutes require the plaintiff to prove that the employer's action of which he is complaining altered the terms or conditions of his employment." Other circuits have adopted the same shorthand. See Bergeron v. Cabral, 560 F.3d 1, 7-8 (1st Cir. 2009) ("The term 'adverse employment action' arose in the Title VII context as a shorthand for the statutory requirement that a plaintiff show an alteration in the material terms or conditions of his employment."); Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) ("An adverse employment action is a materially adverse change in the terms and conditions of employment." (emphasis and internal quotation marks omitted)); Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) ("[A]n adverse employment action [is] an action by an employer that is serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment." (internal quotation marks omitted)); Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) ("To establish a discrimination claim under Title VII . . ., a plaintiff must prove that he or she was subject to an 'adverse employment action'-a judicially-coined term referring to an employment decision that affects the terms and conditions of employment."); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007) ("An adverse employment action in the context of a Title VII discrimination claim is a materially adverse change in the terms or conditions of employment because of the employer's actions." (internal quotation marks omitted)); Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) ("[A]n adverse employment action is one that materially affects the compensation, terms, conditions, or privileges of employment." (ellipsis and internal quotation marks omitted)); Kidd v. Mando Am. Corp., 731 F.3d 1196, 1203 (11th Cir. 2013) ("An adverse employment action is a serious and material change in the terms, conditions, or privileges of employment." (internal quotation marks omitted)).[2]

         The terms-and-conditions-of-employment language applies to failure-to-accommodate claims under the ADA. This is clear from the language of § 12112. We again quote subsection (a) but also include the failure-to-accommodate language of subsection (b):

(a)No covered entity shall [1] discriminate against a qualified individual on the basis of disability [2] in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
(b)As used in [§ 12112(a)], the term "discriminate against a qualified individual on the basis of disability" includes-
(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

(emphasis added). Subparagraph (b)(5)(A) is satisfied if a qualified disabled employee requested an accommodation and the employer, instead of properly engaging in the interactive process required in such circumstances, did not reasonably respond. See Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir. 2004) (describing requirement of reasonable accommodation and the interactive process). What subparagraph (b)(5)(A) and the other provisions in subsection (b) do is to provide disabled persons with a cause of action even when they have not shown that the employer "discriminate[d] against a qualified individual on the basis of disability," as otherwise required by § 12112(a). That is, the employee need not show that she was treated worse than abled persons. For example, a disabled person may have a claim for failure to accommodate a disability even if the employer also failed to accommodate problems encountered by abled employees. It is important to point out, however, that a failure-to-accommodate claim is still a "discrimination" claim under the ADA. Such a claim comes under § 12112, whose title is "Discrimination." See, e.g., U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002) ("[T]he ADA says that 'discrimination' includes an employer's 'not making reasonable accommodations . . . .'").

         But satisfying subparagraph (b)(5)(A) is not the only thing necessary to establish an ADA discrimination claim based on a failure to accommodate. Subsection (b) begins, "As used in [§ 12112(a)], the term 'discriminate against a qualified individual on the basis of disability' includes -" and then lists several alternatives, including a failure to accommodate. (Emphasis added). That, however, is as far as subsection (b) goes. It does not say that the language "discriminate against a qualified individual on the basis of disability in regard to job application procedures, . . . and other terms, conditions, and privileges of employment" includes failure to accommodate under subparagraph (b)(5)(A). (Emphasis added). The emphasized language does not appear in subsection (b), so proof of a failure to accommodate does not automatically satisfy the terms-and-conditions language. Even after proof of a failure to accommodate, there remains the requirement that the discrimination ...

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