April 30, 2017

Tenth Circuit: Random Drug Test for County Employee Acceptable When Employee Holds Safety-Sensitive Position

The Tenth Circuit Court of Appeals issued its opinion in Washington v. Unified Government of Wyandotte County, Kansas on February 6, 2017.

Roberick Washington was a lieutenant at the Wyandotte Country Juvenile Detention Center in Kansas City, Kansas. The position entailed Washington interacting with residents, conducting disciplinary hearings for residents, driving the County van to take juveniles to the intake assessment center, and being present if a fight broke out. Wyandotte County has a random drug testing policy that applies to employees in “safety sensitive positions.” The county’s Policy on Substance Abuse and Drug and Alcohol Testing lists Washington’s position, “juvenile lieutenant,” as a safety sensitive position. The policy states that a failed drug or alcohol test is grounds for discipline, including discharge.

Sheriff Donald Ash terminated Washington after he tested positive for cocaine following a random drug test. Pursuant to the Human Resource Guide, Washington Appealed Ash’s decision to the administrator of the Juvenile Detention Center. This grievance was denied, and Washington appealed to the County Administrator’s Office. After a hearing, an assistant county administrator upheld the termination. Washington claims that he sought an evidentiary hearing and a name-clearing hearing, but was denied both.

Washington alleged three violations of 42 U.S.C. § 1983, namely that the drug test was an illegal search in violation of his Fourth and Fourteenth Amendment rights, he was deprived of his property interest in continued employment without due process, and defendants failed to provide him with a name-clearing hearing. Additionally, Washington claimed the county breached an implied contract created by its written disciplinary policies in violation of state contract law. The district court granted summary judgment for the defendants on all counts.

The Tenth Circuit first addressed Washington’s § 1983 claims. Municipalities are not protected by qualified immunity, so to grant summary judgment in favor or a municipality, the pleadings and supporting materials must establish there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. A plaintiff must identify an unconstitutional policy that caused the claimed injury in order for a municipality to be liable under § 1983. A plaintiff must establish that the municipal employee causing the harm violated the plaintiff’s constitutional rights.

The Tenth Circuit first addressed Washington’s claim that the county’s random drug test violated the Fourth Amendment’s probable cause and warrant requirements. Ordinarily, a search must be based on individualized suspicion of wrongdoing. However, when the government asserts a special need beyond ordinary crime detection, the Tenth Circuit has found suspicionless drug testing reasonable if the government’s interests outweigh the individual’s privacy interests. Courts have held that when drug use among the individuals tested would threaten the workplace or public safety, the government’s concerns are real. Additionally, courts have held that random drug tests are effective at detecting and deterring drug use.

The Tenth Circuit held that the county had a legitimate special need because the random drug tests to juvenile lieutenants ensured the safety and welfare of the children housed in the juvenile detention center. The juvenile lieutenant position involved interactions with residents, and drug use would impair his ability to interact with the youth. Additionally, the random testing minimized the possibility that employees would evade detection and maximized deterrence. Therefore, the Tenth Circuit found a legitimate special need for the random drug testing.

The Tenth Circuit then weighed the special need against Washington’s privacy interests to determine if the tests were reasonable. The Tenth Circuit held that as a correctional employee, Washington’s expectation of privacy was diminished. Additionally, the drug testing was minimally invasive, as Washington provided a sample behind a closed door with no supervision.

Next, the Tenth Circuit held that the county presented two interests that were important enough to justify testing Washington. The first was that Washington was working with juveniles in an educational setting, and an employee’s illegal drug use presented a risk of harm to minors. Second, if an employee has law enforcement duties and access to direct contact with inmates, that employee’s illegal use of drugs presents a significant threat to inmates and the security of the facility. The Supreme Court has held that suspicionless drug testing of employees in certain safety sensitive positions was reasonable. In this case, the county’s policy lists “juvenile lieutenant” as a safety sensitive position. The Tenth Circuit held that this classification was reasonable to Washington’s position based on the duties that he performed. Therefore, the Tenth Circuit held that in this specific instance, the county’s interests were more important and outweighed Washington’s diminished privacy rights, and thus the random drug test was reasonable. Consequently, neither Sheriff Ash nor the county could be subject to § 1983 liability.

Next, the Tenth Circuit addressed Washington’s claim that the county’s personnel policies established he had a protected property interest in his continued employment at the Juvenile Detention Center. The Tenth Circuit stated a two-part inquiry to determine whether a plaintiff was denied procedural due process. First, the plaintiff must have a protected interest to which due process is applicable. The second inquiry is whether the plaintiff was afforded an appropriate level of due process.

Here, the Tenth Circuit looked to Kansas state law to determine if Washington had a protected property interest. The Tenth Circuit determined that Kansas law established that public employment is presumptively at-will, and that Washington did not provide evidence to rebut this presumption. The Tenth Circuit held that personnel policies alone were insufficient to create an implied employment contract. Therefore, the Tenth Circuit affirmed the district court’s grant of summary judgment on this claim.

The Tenth Circuit affirmed the district court’s grant of summary judgment for Washington’s claim that he was entitled to a name-clearing hearing because Washington’s pretrial order did not reference any damaged liberty interest.

Finally, the Tenth Circuit holds that because Washington failed to establish that there was an implied employment contract, the county was entitled to summary judgment on his breach of contract claim.

Tenth Circuit: Findings of Fact Needed to Determine Whether Termination Caused by Employer’s Belief that Employee Engaged in Protected Activity

The Tenth Circuit Court of Appeals issued its opinion in Bird v. West Valley City on Monday, August 8, 2016.

Karen Bird was hired at West Valley City’s animal shelter in 2001, and was promoted to manager by Kelly Davis, her direct supervisor, in 2002. In 2005, West Valley City’s human resources manager, Shirlayne George, investigated the shelter and reported several negative comments about Ms. Bird by fellow employees. Mr. Davis was also the subject of several complaints, especially by women, and Ms. George investigated him in 2009. Most of the women who complained about Mr. Davis were either fired or voluntarily left the animal shelter shortly after complaining. Ms. Bird and Mr. Davis had a disagreement in 2009, and their already strained relationship deteriorated thereafter, to the point where Ms. Bird would not look Mr. Davis in the eye and could not stand to be in the same room as him.

In October 2011, the Salt Lake Tribune published an article about a cat that had endured two failed euthanasia attempts in the shelter’s gas chamber. About a week later, a reporter called the shelter after receiving an anonymous tip about a planned mass-euthanasia due to overpopulation. Both Layne Morris, the Community Preservation Department Director and Mr. Davis’s direct supervisor, and Mr. Davis believed that the anonymous tip had come from Ms. Bird, although she denied it. Ms. Bird was notoriously against using the gas chamber for euthanasia and was one of the few individuals privy to the information about the shelter’s overpopulation. Shortly after this incident, Ms. Bird emailed Ms. George that she could not take any more of Mr. Davis’s harassment. She filed a formal complaint on November 3, 2011.

Less than a week later, Mr. Davis issued two letters of reprimand to Ms. Bird regarding unauthorized use of overtime pay, despite the shelter’s usual practice of issuing less formal warnings before the letters of reprimand. On November 14, in response to Ms. Bird’s complaint, Ms. George undertook an investigation of the entire shelter. She received several complaints regarding both Ms. Bird and Mr. Davis, but more against Ms. Bird. Mr. Morris reviewed the results of the investigation and decided to discipline Ms. Bird for insubordination and failure to be courteous to the public or other shelter employees. He sent Ms. Bird a letter advising of the discipline on November 16, and ultimately terminated her employment on November 29. Mr. Morris testified that his decision to terminate Ms. Bird was not only based on the November 2011 investigation, but rather because of the deterioration of the relationship between Ms. Bird and Mr. Davis. Mr. Morris also testified that he had considered terminating Ms. Bird in December 2010 but Mr. Davis stayed his hand.

Ms. Bird unsuccessfully appealed her termination to Ms. George, then the city’s human resources director, and finally to the West Valley City Appeals Board. When all three appeals were unsuccessful, Ms. Bird filed a complaint in district court, alleging the city terminated her in violation of Title VII as a result of gender discrimination and subjected her to a hostile work environment; the city violated § 1983 because it terminated her as a result of gender discrimination in violation of the Equal Protection Clause; and both the city and Mr. Davis violated § 1983 because they terminated her in retaliation for exercising her First Amendment rights concerning the anonymous tip to the reporter. Ms. Bird maintained that she did not provide the anonymous tip, but because she was perceived as doing so, the termination in retaliation violated her First Amendment rights. Ms. Bird also brought state law claims for breach of contract and breach of the covenant of good faith and fair dealing. The district court granted summary judgment to defendants on all claims.

On appeal, the Tenth Circuit first considered Ms. Bird’s Title VII gender discrimination and hostile work environment claims. Applying the McDonnell Douglas burden-shifting framework, the Tenth Circuit evaluated Ms. Bird’s claim that the shelter had a pattern and practice of discriminating against female employees. However, Mr. Morris provided two legitimate, non-discriminatory reasons for terminating Ms. Bird: insubordination and failure to be courteous and cooperative with fellow employees. The Tenth Circuit evaluated Ms. Bird’s proffered reasons why Mr. Morris’s explanation was pretextual. She first contended that the reasons he outlined for terminating her differed from those offered in his deposition. The Tenth Circuit disagreed; the Circuit noted that Mr. Morris had offered specific examples in his deposition but his stated reasons for Ms. Bird’s termination were always insubordination and failure to be courteous. Ms. Bird also contended that the individuals to whom she appealed her termination offered different reasons, but the Tenth Circuit found that they merely offered different instances of her conduct. The Tenth Circuit held that no reasonable juror could determine that the city’s reason for terminating her was pretextual.

The Tenth Circuit similarly disposed of Ms. Bird’s hostile work environment claims. Although Mr. Davis’s conduct was deplorable, the Circuit did not find any evidence that his behavior was gender-based. Ms. Bird pointed to several statements, but the statements were generalized and did not point to specific instances. The Tenth Circuit refused to consider vague and conclusory statements as evidence of gender discrimination.

Turning next to the § 1983 Equal Protection claims, the Tenth Circuit found that because Ms. Bird alleged the same facts to prove her Equal Protection claim as she asserted to prove her Title VII claims, the Equal Protection argument failed for the same reasons. The Tenth Circuit also disposed of Ms. Bird’s state law breach of contract and breach of fiduciary duty claims. Ms. Bird relied on the employee handbook to argue her claims based on violation of the “Workplace Violence” section and the unwritten anti-retaliation policy. The Tenth Circuit found that the large disclaimer on the handbook eliminated all contractual liability for the city.

Finally, the Tenth Circuit evaluated Ms. Bird’s § 1983 First Amendment retaliation claims. Although Ms. Bird continued to argue that she did not make the anonymous tips to the reporters, she alleged that she was terminated in retaliation because the city believed she had made the tips. The Tenth Circuit found that the Supreme Court’s decision in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), controlled its analysis. The lower court did not evaluate Ms. Bird’s First Amendment claims because she could not show that she engaged in protected activity. The Tenth Circuit remanded for a determination of whether Ms. Bird raised a genuine issue of material fact that the city’s belief motivated its decision to terminate her employment.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the Title VII gender discrimination and retaliation claims, the § 1983 Equal Protection Claims, and the state law contractual claims. The Tenth Circuit reversed and remanded on the § 1983 First Amendment claims.

Tenth Circuit: A Reasonable Jury Could Credit Plaintiff’s Version of Events, So Summary Judgment Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Foster v. Mountain Coal Co., LLC on Tuesday, July 26, 2016.

Eugene Foster worked at Mountain Coal’s West Elk Mine in Colorado when he turned his head suddenly on February 5, 2008, and injured his neck. He sought treatment the following day at a local ER and received a return-to-work form from the ER doctor saying he could return on February 8. However, due to a previously scheduled hernia repair surgery, he did not return to work until March 31. Mountain Coal held a meeting with Foster on February 10 to discuss the injury where his managers rejected the ER doctor’s return to work form and instead told Foster that he needed to have a doctor complete Mountain Coal’s return to work form. Foster said he would try to have it completed during his hernia surgery.

Foster was unable to have a hospital doctor complete the Mountain Coal return to work form, so he dropped it off with his regular doctor. Foster testified in his deposition that sometime in early March, he delivered the form to the Mountain Coal offices, where he left it on the HR person’s desk. When she told Foster she did not receive the form, he obtained another form from his personal doctor and delivered it to Mountain Coal on March 18. Foster continued to receive care for his neck injury at Mountain Coal’s direction.

On March 31, Foster returned to work with a Mountain Coal return to work form completed by his hernia doctor. On April 3, the general manager of Mountain Coal held a meeting with Foster and an HR employee. During the meeting, the manager confronted Foster about not seeing his personal physician for the neck injury. Foster confirmed that he hadn’t seen his personal physician, and averred that he told the managers that but they continued to request that he have the personal physician complete the return to work form. Foster was supposed to have retraining the following day but requested at the April 3 meeting that it be rescheduled to accommodate his appointment with a doctor about scheduling surgery for his neck. Foster was suspended indefinitely during the meeting. According to his account, it was for not seeing the personal physician before receiving the return to work form. According to Mountain Coal, it was because Foster lied about delivering the earlier return to work form.

Foster saw the specialist on April 4, who opined that he would not recommend surgery because Foster’s work was aggravating the neck condition. On April 9, Foster saw his personal physician, who opined that Foster should not return to his regular work activities. Foster received a letter from his personal physician on April 11 memorializing the doctor’s conclusions that Foster was unable to return to work, and immediately called Mountain Coal to inform them of the letter. He spoke to his direct supervisor.

Two Mountain Coal managers testified that they had decided to terminate Foster on April 9 because he had lied about leaving a return to work form on the HR person’s desk, while a third testified that Foster had not provided a return to work form with the correct dates for his release “and stuff.” On April 14, Foster received a letter advising him of his termination. Although the letter was dated April 11, it stated that the termination was effective April 9. The letter advised that Foster was being terminated for false information regarding a return to work slip.

After Mountain Coal terminated his employment, Foster filed a charge of discrimination with the EEOC and Colorado Civil Rights Division. He received a right-to-sue letter from the EEOC, and filed a complaint in district court in December 2012, seeking relief under the ADA and Colorado law. The district court entered summary judgment for Mountain Coal, and Foster appealed.

The Tenth Circuit first concluded that genuine issues of material fact existed regarding whether Foster had proved his ADA retaliation claim. Foster claimed that his requests for accommodation on April 3 and April 11 were protected activity, and his termination was a retaliatory adverse employment action. The Tenth Circuit evaluated Foster’s claims of requests for accommodation and found them sufficient to apprise Mountain Coal of his needs. Although the district court held that Foster’s April 3 remarks were not sufficiently direct and specific to constitute a request for accommodation, the Tenth Circuit found that the remarks conveyed a need to meet with the doctor in order to schedule surgery, which was sufficiently specific to trigger accommodations. The Tenth Circuit noted that Foster’s deposition testimony could be clearer, but it was clear enough to survive summary judgment. The Tenth Circuit also found that Foster’s April 11 request was clear, and found Mountain Coal’s attempt to retroactively terminate Foster disingenuous. The Tenth Circuit noted the discrepancies between Mountain Coal’s stated reasons for suspending and terminating Foster, and found that the suspicious timing could lead a reasonable fact-finder to infer that Mountain Coal learned of Foster’s request for accommodation and terminated him because of it.

The Tenth Circuit reversed the district court’s grant of summary judgment to Mountain Coal.

Colorado Court of Appeals: Employer May Terminate Employee for Conduct Reasonably Related to Job Activities

The Colorado Court of Appeals issued its opinion in Williams v. Rock-Tenn Services, Inc. on Thursday, February 11, 2016.

Douglas Williams had been employed by Rock-Tenn Services for 36 years, and in the last four years of his employment, Williams was the Denver plant manager. In 2012, the Denver plant underwent a scheduled audit. Williams rescheduled his previously approved vacation in order to attend the post-audit meeting on June 27, 2012, but due to a scheduling conflict with upper-level management, the meeting was rescheduled for July 3, 2012, during Williams’ previously scheduled vacation. Williams’ supervisor, Vas, approved the vacation and absence from the meeting, but Vas’ supervisor, Morris, became upset that Williams was not at the meeting and ordered his termination. When Williams returned from vacation, he was terminated.

Williams sued Rock-Tenn under Colorado’s Lawful Off-Duties Activities Statute (LODAS), arguing that his approved vacation and absence from the meeting was a lawful activity for which he could not be terminated. Rock-Tenn filed a motion to dismiss for failure to state a claim, which the district court granted, holding that Williams’ conduct plainly fell within one of the LODAS exceptions because the termination was reasonably and rationally related to Williams’ duty to attend the post-audit meeting. Williams appealed, holding the dismissal was in error because his approved vacation was a personal, private activity protected by LODAS. He also suggested the dismissal was improper because it was based on an affirmative defense.

The court of appeals analyzed Williams’ factual allegations and found that they plainly showed the vacation and missing the meeting were inextricably linked. Williams was unavailable in person or by phone during his vacation, and the court agreed with the district court’s determination that Williams alleged Rock-Tenn improperly terminated him for missing the meeting while he was on a pre-approved vacation. Although the court found that Williams was correct that generally a party need not address an affirmative defense in its complaint, in these circumstances Williams was on notice of the availability of the affirmative defense because his complaint alleged impropriety under the same subsection of LODAS from which the affirmative defense arises. The court therefore found no error in the district court’s dismissal. Similarly, the court of appeals agreed with the district court that Williams’ complaint failed to state a claim from which relief could be granted due to the presence of the affirmative defense. Addressing Rock-Tenn’s request for attorney fees, the court of appeals declined to award attorney fees, noting that Rock-Tenn stated no legal basis for the fee award.

The court of appeals affirmed the district court.

Tenth Circuit: Independent Review Process Breaks Causal Chain Between Discrimination Allegations and Termination

The Tenth Circuit Court of Appeals issued its opinion in Thomas v. Berry Plastics Corp. on Friday, September 25, 2015.

Karry Thomas, who is African-American, worked for Berry Plastics Corp. in its Kansas facility from 2003 to 2010. Over the course of his employment, eight different Berry supervisors initiated at least 13 different disciplinary actions against him, ranging in severity from verbal coaching and written warning to suspensions and final warnings. In May 2009, Jason Morton became Thomas’s group leader. Morton had limited disciplinary authority and was unable to independently issue high levels of discipline such as suspensions or final warnings.

After conferring with his supervisor, Morton suspended Thomas in July 2010 for a print quality issue. Because of this suspension and a prior suspension issued by a different supervisor two months earlier, Watson, the printing manager who oversaw the entire Kansas operation, issued a Last Chance Agreement to Thomas, providing that he would be subject to disciplinary action for future attendance or rules violations. Morton was not involved in the decision to place Thomas on a Last Chance Agreement. A few weeks later, Morton gave Thomas a Final Warning, acting pursuant to direction from Watson and Human Resources, based on failure to pack product correctly on July 27. Thomas alleged that he did not fail to pack the product properly and stated he felt he was “getting discrimination because of race.” Morton investigated and determined the packing problem was not Thomas’s fault. He rescinded the Final Warning.

Later, Morton submitted a report to Watson that faulted Thomas for a print quality issue on September 10. Watson reviewed the incident and did not consult Morton before deciding to terminate Thomas. Before Human Resources could approve Watson’s termination decision, Morton issued a written warning to Thomas based on a different incident where he failed to complete paperwork. Shortly thereafter, Berry officially terminated Thomas’s employment.

Thomas appealed his termination through Berry’s Termination Review Process two days later, and two independent Berry managers affirmed Watson’s termination decision. Thomas thereafter filed suit for wrongful discharge, alleging he was terminated in retaliation for opposing race discrimination in violation of Title VII and 42 U.S.C. § 1981. Thomas invoked the cat’s paw theory of recovery, arguing it was Morton who possessed the retaliatory animus that infected Watson’s termination decision because of Thomas’s opposition to racial discrimination that he expressed at the Final Warning meeting with Morton. The district court ultimately granted summary judgment to Berry, and Thomas appealed.

On appeal, Thomas argued the district court erroneously granted summary judgment to Berry because he presented sufficient circumstantial evidence from which a reasonable jury could conclude the stated reason for his termination was pretextual. The Tenth Circuit disagreed, finding the district court correctly granted summary judgment for two reasons. The Tenth Circuit first applied the McDonnell Douglas framework to determine whether Thomas’s termination was pretextual and found Thomas failed to meet his burden to show pretext.

Thomas argued that a reasonable jury could infer Morton possessed retaliatory animus because of two pieces of circumstantial evidence. First, Thomas argued that Morton’s report regarding the September 10 print quality issue was dishonest because it failed to include that Thomas had properly inspected the equipment before going on break. However, Thomas did not argue that Berry would not hold a print technician responsible for errors that occurred while the print technician was on break, and the Tenth Circuit noted that record evidence suggested the opposite. The Tenth Circuit found that Morton’s omission on the September 10 report was inconsequential and did not reflect retaliatory animus. Next, Thomas argued that Morton’s report on the September 10 issue was inconsistent with his rescission of the July 27 incident. The Tenth Circuit again disagreed, noting that there is no inference of retaliatory animus in including more information in a rescission than in the original report, and also finding that both the rescission and the September 10 incident occurred after Thomas expressed concern about race discrimination, negating an inference that the timing of the September 10 report supported retaliation.

Although the Tenth Circuit found it could affirm on the lack of evidence alone, it also addressed causation, finding Thomas could not show that Morton’s retaliatory animus was a “but-for” cause of termination. Because Thomas’s termination was independently affirmed by Berry’s Termination Review Panel, the causal chain between Morton’s alleged animus and the retaliatory action was broken. The Tenth Circuit held that, even if it assumed retaliatory animus, Thomas could not show that the animus was a “but-for” cause of his termination.

The district court’s grant of summary judgment was affirmed.

Tenth Circuit: State Does Not Waive Sovereign Immunity Under ADA by Accepting Federal Funds

The Tenth Circuit Court of Appeals issued its opinion in Levy v. Kansas Department of Social and Rehabilitation Services on Tuesday, June 16, 2015.

Paul Levy was a rehabilitation counselor for the Kansas Department of Social and Rehabilitation Services (SRS). In December 2008, he agreed to serve as a counselor for a blind co-worker, Tina Bruce, who was concerned she was not being properly accommodated. He ordered an assessment from a contractor, Brenda Umholtz, who had done extensive work for both Levy and Bruce at SRS. Umholtz’s report stated that Bruce was not receiving adequate accommodations and could not compete on a level playing field with her co-workers. In February 2009, Levy’s supervisor, Michael Donnelly, sent Levy a letter proposing Levy’s termination due to a violation of SRS’s conflict of interest policy based on Umholtz’s report. The letter provided Levy an opportunity to appear in person and respond to the allegations on February 24, 2009. Levy reported in his interrogatories that he met with Donnelly prior to receiving the termination letter, and in that meeting he told Donnelly that other counselors in the division had served as counselors for co-workers without being punished. He also stated that he informed his supervisor about Bruce’s case in January 2009 and transferred the case to his supervisor immediately when asked to do so. Levy tendered his resignation on February 25, 2009, noting that it became clear to him in the February 24 meeting that Donnelly intended to terminate him regardless of the outcome of the meeting.

Umholtz filed suit against SRS on February 11, 2011. Levy joined the suit on March 2, 2011, and Bruce joined shortly after. In the Second Amended Complaint, Levy alleged SRS retaliated against him in violation of the ADA and requested reinstatement, compensatory damages, attorney fees, and other litigation expenses. Plaintiffs subsequently amended their complaint to include Rehabilitation Act claims for Bruce and Levy, and SRS agreed not to oppose the amendment in exchange for plaintiffs’ agreement that SRS had not waived sovereign immunity. SRS filed for summary judgment on all Levy’s claims on March 23, 2012, arguing Levy’s ADA claim was barred by the Eleventh Amendment and his Rehabilitation Act claim was barred by Kansas’ two-year statute of limitations for personal injury claims. Levy countered that SRS waived its Eleventh Amendment sovereign immunity claim by accepting federal funds and the Rehabilitation Act claims were more appropriately characterized as statutorily created rights subject to Kansas’ three-year statute of limitations. The district court granted summary judgment to SRS on the ADA claim based on sovereign immunity and on the Rehabilitation Act claims due to the expiration of the statute of limitations. Levy appealed.

The Tenth Circuit found Levy’s arguments that the state waived sovereign immunity by accepting federal funds cogent, but ultimately disagreed. Levy contended the waiver provisions of the Rehabilitation Act similarly apply to the ADA because the two acts are closely linked. The Tenth Circuit agreed that the two acts were closely linked, but instead found it appropriate to apply a stringent test to determine whether the state waived its sovereign immunity. The Tenth Circuit decided that, since “Congress does not hide elephants in mouseholes,” the waiver of sovereign immunity under the ADA must be explicitly stated and not “hidden in another statute and only applied to the ADA by implication.” Particularly because the ADA was passed after the Rehabilitation Act’s waiver provisions, the Tenth Circuit found merit in its determination.

Turning next to the statute of limitations issue, the Tenth Circuit agreed that Kansas’ two-year statute of limitations for personal injury actions applied to the analogous Rehabilitation Act claims. Levy argued that the case on which the district court relied was confusing because it made several references to a Kansas statute detailing when a three-year statute of limitations applies, and argued Kansas case law supported the determination that Rehabilitation Act claims should be subject to the three-year statute of limitations because they involved statutorily created rights. The Tenth Circuit found that although the case incorrectly cited the wrong statute twice, the holding of the case was clear that the personal injury analogy should apply to Rehabilitation Act claims. The Tenth Circuit found Levy’s second argument more persuasive, since Kansas courts expressly characterized employment discrimination claims as statutorily based and subject to the three-year statute of limitations. However, the Tenth Circuit was not bound by the Kansas Supreme Court decisions, and chose to uphold its own precedent in finding Rehabilitation Act claims analogous to personal injury claims. The Tenth Circuit determined Levy’s Rehabilitation Act claims were time-barred.

The judgment of the district court was affirmed.

Tenth Circuit: Inadequate Briefing Warrants Affirmance of Lower Court Opinion

The Tenth Circuit Court of Appeals issued its opinion in Nixon v. City & County of Denver on Thursday, April 30, 2015.

Ricky Nixon was a Denver police officer who was involved in two highly publicized incidents of excessive force. He was cleared of wrongdoing after the first incident, but the Denver manager of safety ordered a 30-day suspension after the second incident and ordered his termination when he was not truthful about the incident. A panel of the Denver Civil Service Commission reversed the termination but ultimately the Colorado Court of Appeals remanded. While the Commission decision was being challenged by the City, Nixon filed a § 1983 suit against the manager of safety, the City, and others in federal district court. The district court dismissed all his claims, but on appeal Nixon challenged the dismissal of only two: (1) the City and manager violated his First Amendment rights by retaliating against him for protected speech, and (2) a Due Process claim based on his protected status as a police officer.

The Tenth Circuit noted that First Amendment claims should be evaluated under the Garcetti/Pickering test, and that to show a due process violation the employee must prove governmental defamation and alteration in legal status. The district court dismissed Nixon’s claims for failure to state a claim for relief.

The Tenth Circuit analyzed Nixon’s opening brief on appeal and found that no pertinent issue was adequately developed. The Tenth Circuit first affirmed the district court’s dismissal of Nixon’s stigma-plus-due process claim because Nixon’s opening brief “contain[ed] nary a word to challenge the basis of the dismissal.” As for Nixon’s claims that his speech was on a matter of public concern, the Tenth Circuit found only general statements about the protected speech and not specific references as required. Addressing the district court’s ruling that Nixon’s 2013 statement before the Civil Service Commission could not have been a motivating factor in his 2011 termination, the Tenth Circuit found that if it sought to make arguments for Nixon it could read one sentence in his brief to state that the retaliation was the City’s decision to seek state court review of the Commission’s ruling in Nixon’s favor. The Tenth Circuit, however, had “no obligation to address the point because the sentence fails to satisfy minimal standards for intelligibility that we must require from lawyers, it is misleadingly placed under a heading for a different issue, and the brief does not even say that the sentence is intended as a response to a ruling by the district court or an argument by the City.”

The Tenth Circuit affirmed the district court judgment.

Tenth Circuit: Protected Communications Did Not Cause Employee’s Termination

The Tenth Circuit Court of Appeals issued its opinion in Meyers v. Eastern Oklahoma County Technology Center on Wednesday, January 28, 2015.

Donna Meyers was the adult education coordinator for the EMT program at Eastern Oklahoma County Technology Center. The school lost the records of tuberculosis tests for six students, and a teacher, Ms. Gonzales-Palmer, an Air Evac medic, offered to retest the six instead of asking them to absorb the cost of testing. Ms. Meyers believed the medic had stolen testing materials from Air Evac and instructed her not to test the students. Later, Ms. Meyers discovered the medic had disobeyed her orders. Ms. Meyers contacted Air Evac and agreed to cooperate in their investigation, then met with Ms. Gonzales-Palmer about the incident. Ms. Meyers terminated Ms. Gonzales-Palmer at the meeting.

Ms. Gonzales-Palmer contacted the school superintendent about her termination. The superintendent reinstated Ms. Gonzales-Palmer and warned Ms. Meyers that she lacked authority to terminate employees. The superintendent also admonished Ms. Meyers not to retaliate against Ms. Gonzales-Palmer or discuss the testing with anyone. Shortly thereafter, Ms. Meyers met with the Air Evac supervisor regarding the testing. The superintendent learned of the communication and warned Ms. Meyers that if she continued to discuss the testing or if she retaliated against Ms. Gonzales-Palmer she could be terminated.

Four days later, Ms. Meyers removed Ms. Gonzales-Palmer as a c0-instructor of two classes without consulting her supervisor. When the superintendent learned of this action, he met with Ms. Meyers and informed her she was suspended. The next day, the supervisor learned Ms. Meyers had failed to renew the school’s certification as an EMT training site, and recommended her termination. Ms. Meyers made a written complaint with the Oklahoma Department of Health the same day about the tuberculosis testing. The superintendent wrote a letter advising Ms. Meyers he was recommending her termination and she could appeal his decision, even though she had no right to appeal. Ms. Meyers appeared at the appeal hearing before the school’s board with counsel, but the board voted to terminate her at the end of the hearing.

Ms. Meyers sued under § 1983, alleging denial of the right to free speech regarding her report about the tuberculosis testing and deprivation of due process based on the board’s alleged bias during the hearing. The district court granted summary judgment to the school and superintendent on these claims. Ms. Meyers appealed.

Ms. Meyers claimed that her discussions with the Oklahoma State Board of Health and Air Evac regarding the testing were protected speech and she was wrongfully terminated for engaging in the speech. The district court, and the Tenth Circuit, agreed that the speech was protected but found that Ms. Meyers was not terminated for engaging in the protected speech. The Tenth Circuit applied the five-pronged Garcetti-Pickering test and found that, regarding the Oklahoma State Board of Health, Ms. Meyers’ claim of retaliation failed at the fourth prong because the superintendent did not know about the communication at the time he recommended Ms. Meyers’ termination.

As for the communication with Air Evac, the district court and Tenth Circuit found the retaliation claim failed at the fifth prong, because the superintendent would have recommended Ms. Meyers’ termination regardless of the communication with Air Evac based on  her retaliation against Ms. Gonzales-Palmer. The superintendent had specifically advised her to consult her supervisor before taking any action against Ms. Gonzales-Palmer, so removing her as an instructor was a direct disregard of orders.

The Tenth Circuit next addressed Ms. Meyers’ claim of deprivation of due process and found the claim failed as a matter of law. Ms. Meyers had no protected interest in the meeting with the board.

The district court’s grant of summary judgment to the superintendent and school was affirmed.

Tenth Circuit: Employee’s Untruthfulness and Abuse of Sick Leave Justified Termination Despite Qualifying for FMLA Leave

The Tenth Circuit Court of Appeals issued its opinion in Dalpiaz v. Carbon County, Utah on Friday, July 25, 2014.

Bridget Dalpiaz worked as the benefits coordinator for Carbon County, Utah, from February 1995 until her termination in September 2009. As benefits coordinator, Dalpiaz scheduled doctor’s appointments for new county employees and was very familiar with the process for taking FMLA leave. She had favorable evaluations and no disciplinary history until she was in a car accident in April 2009.

After her motor vehicle accident, Dalpiaz missed work from April 3 through July 13, 2009, and she returned on a limited basis on July 13. Because of the extended absence, her supervisor requested that she submit a request for FMLA leave and mailed her a form in May 2009. Dalpiaz did not respond and did not submit the form. The supervisor emailed Dalpiaz on June 12, requesting that she return the FMLA form as soon as possible. Dalpiaz did not respond. The county attorney sent Dalpiaz a letter on June 30, advising her that she must return the form by July 10. Dalpiaz returned the form at 4:22 p.m. on July 10. On July 13, Dalpiaz returned to work for two hours a day, two days a week, per the restrictions set by a spine specialist she saw.

While she was gone from work, her supervisor received eight written statements from coworkers that Dalpiaz was engaging in physical activities that seemed inconsistent with her claims for injury. Because of these reports, the county requested that Dalpiaz submit to an IME and gave her three physicians from which to choose for this exam. Dalpiaz never responded. The county attorney then sent Dalpiaz a letter requesting her to schedule the exam by August 3, and advising her that failure to schedule the exam may result in disciplinary action. Dalpiaz attempted to set the exam but was told she needed a referral. Instead of obtaining the referral, she sent a letter to the county attorney regarding the referral and inquiring if it was now county policy to force employees to submit to IMEs. Eventually, Dalpiaz was terminated for five reasons – (1) failure to timely complete the FMLA forms; (2) failure to schedule an IME; (3) significant evidence of untruthfulness regarding her injuries; (4) abuse of sick leave; and (5) personal use of a camera belonging to the county. Dalpiaz filed a federal complaint on six grounds, the sixth alleging the county interfered with, restrained, and/or denied her right to FMLA leave. The district court granted summary judgment to the county on all counts.

Dalpiaz appealed only the grant of summary judgment related to the interference with FMLA leave. The Tenth Circuit first determined that the type of FMLA at issue in this case was retaliation, even though Dalpiaz only pled interference in her complaint. In response to the county’s claims that Dalpiaz waived the issue of retaliation by not pleading it in her complaint, Dalpiaz asserted that she did not need to specifically claim retaliation to preserve the issue. The Tenth Circuit disagreed with Dalpiaz, remarking that nothing in her complaint referenced retaliation, and instead she tracked the language pertaining to interference.

Examining her claims under the interference context, the Tenth Circuit found that Dalpiaz was entitled to FMLA leave and the county may have taken an adverse action which interfered with her right to FMLA leave. However, as to the third prong of the interference test, whether her termination was related to the exercise of her FMLA rights, the Tenth Circuit agreed that the county would have terminated Dalpiaz regardless of her FMLA status. The Tenth Circuit noted ample evidence in the record of the county’s sincere belief in Dalpiaz’s untruthfulness regarding the extent of her injuries and abuse of sick leave. The Tenth Circuit also noted that the county was justifiably concerned with Dalpiaz’s failure to return the FMLA forms “as soon as possible” as directed by her supervisor, instead choosing to return the forms at the last minute. Dalpiaz also failed to make an IME appointment as directed and did not put forth a good faith effort to make the appointment. The evidence, taken in the light most favorable to Dalpiaz, supported the county’s termination. The Tenth Circuit affirmed the district court’s grant of summary judgment.

Tenth Circuit: County Violated Title VII by Terminating Employee After He Helped Colleague Pursue Sexual Harassment Claim Against Employer

The Tenth Circuit Court of Appeals issued its opinion in Barrett v. Salt Lake County on Friday, June 13, 2014.

Michael Barrett was employed by Salt Lake County for 14 years, where he received promotions and favorable reviews until he helped a colleague pursue a sexual harassment claim against her boss. After he assisted his colleague, he was demoted by the county. He sued, alleging the county violated Title VII by retaliating against him, and the jury found for Mr. Barrett.

The county appealed, asserting that it was entitled to judgment as a matter of law. The Tenth Circuit disagreed, noting that the case on which the county relied play no role in post-trial motions. The county also alleged that the jury instructions provided the wrong procedural framework for determining Title VII cases. However, the jury received instruction on the proper procedural framework and decided the case accordingly, so the county’s argument failed. The county also objected to another jury instruction, but this objection was not properly preserved at trial.

The county also disagreed with the district court’s award, not restoring Barrett to his former position since the position had been filled but instead restoring him to his prior level of pay. The county claimed that the result afforded Barrett a “windfall” for performing less work for more pay. However, the Tenth Circuit was unsympathetic to this argument, noting that the district court retains wide discretion in determining equitable relief.

The final argument raised by the county was that the district court’s award of attorney fees to Barrett for fees incurred during the internal grievance process was in error because it was an optional process, not a mandatory exhaustion of administrative remedies. On that limited point, the Tenth Circuit agreed. The Tenth Circuit remanded for redetermination of attorney fees and affirmed on all other points.

Tenth Circuit: UPS Employee Failed to Show Stated Reason for Termination–Dishonesty–Was Pretext for Retaliation

The Tenth Circuit Court of Appeals published its opinion in Macon v. United Parcel Service on Wednesday, February 19, 2014.

Jeff Macon was employed by the United Parcel Service and suffered two work-related injuries. The injuries were covered by workers’ compensation. Prior to his second injury, he was disciplined and terminated for improperly signing for a customer’s next-day air delivery. The termination was later reduced to a suspension. After several suspensions and grievances, Bacon was eventually terminated for dishonesty.

Bacon filed this action in federal district court alleging UPS terminated his employment because of his work related injury. He argued that UPS’s stated reason for his termination—dishonesty—was merely a pretext for retaliation. UPS moved for summary judgment arguing Macon failed to show the necessary causal connection between his 2007 and 2008 WC claims and his 2009 termination. The district court agreed and Macon appealed.

To establish a claim for a retaliatory discharge under Kansas law, a plaintiff must show: (1) a claim for worker’s compensation benefits or an injury that might support a future worker’s compensation claim; (2) the employer knew of the claim or injury; (3) the employer discharged the plaintiff; and (4) a causal connection between the claim (or injury) and the discharge. The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.

The Tenth Circuit reviewed the documents Macon cited, but none raised a genuine and material issue of fact sufficient to allow a reasonable jury to find pretext. Macon did not explain how any retaliatory motive on the part of his supervisors could be imputed to UPS when the final decision to terminate him was made by a grievance panel. Nor did he allege the grievance panel was biased, had a retaliatory motive, or merely rubber-stamped his supervisor’s decision to terminate him. The discipline imposed after the settlement of his workers’ compensation claim did not raise a triable issue of pretext.

Macon also argued a jury could determine his discharge for dishonesty was pretextual because the record showed he was not dishonest. Macon claimed he was not dishonest, merely inadequately trained. But he was not entitled to a determination of whether he was dishonest; rather, he was entitled only to a determination of whether the terminating grievance panel could reasonably have thought so.

Finally, Macon attempted to demonstrate pretext by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness. The problem with Macon’s approach was that it failed to give UPS credit for establishing grievance panels with independent authority to assess the propriety of discipline. Even assuming the difference in treatment between Macon and another employee resulted from their supervisor’s desire to terminate Macon in retaliation for his workers’ compensation claims, this improper motive could not be imputed to UPS when the independent grievance panel concluded there was adequate reason to terminate Macon for dishonesty. But, Macon simply did not argue—and nothing in the record suggested—the grievance panel was in any way complicit in or blind to the supervisor’s retaliatory motive.

AFFIRMED.

Tenth Circuit: Summary Judgment in Favor of IBM on Age Discrimination Claims Affirmed

The Tenth Circuit Court of Appeals published its opinion in Roberts v. International Business Machines Corporation on Tuesday, November 5, 2013.

George Roberts said IBM fired him because of his age. He argued an instant messaging conversation between two of the company’s human resources managers proved as much. The pair were discussing whether to eliminate Mr. Roberts’s position on the ground that he didn’t have enough billable work to justify the expense of paying him. By the conversation’s end, the two HR managers agreed to retain him, but also to reevaluate him a few months if his performance continued to decline. On the way to these conclusions, one of the managers asked about Mr. Roberts’s “shelf life.” And it was this question, Mr. Roberts contended, that showed age played a direct role in his eventual discharge.

Any fair reading of the conversation, though, reveals that the “shelf life” here had nothing to do with Mr. Roberts’s age and everything to do with his workload, just as the district court held when granting IBM’s motion for summary judgment.  Mr. Roberts appealed.

The Tenth Circuit held that the instant message conversation unmistakably suggested that “shelf life” was nothing worse than an inartful reference to Mr. Roberts’s queue of billable work. And that was more than enough to preclude it from amounting to direct evidence of discrimination in violation of the federal Age Discrimination in Employment Act. The “shelf life” comment, qualified at most, as circumstantial evidence of an ADEA violation. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (“[I]f the content and context of a statement allow it to be plausibly interpreted in two different ways — one discriminatory and the other benign — the statement does not qualify as direct evidence.”)

Nor could Mr. Roberts amass sufficient circumstantial evidence to suggest IBM fired him on account of his age. When a plaintiff seeks to prove age discrimination under the ADEA using circumstantial rather than direct evidence, the court  evaluates the claim using the McDonnell Douglas burden-shifting approach: If a terminated employee can make a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for firing the employee. If the employer can do that, the employee picks up the burden once more and can survive summary judgment by identifying evidence that could support a reasonable jury’s concluding that the employer’s proffered rationale is a mere pretext for discrimination. Tabor, 703 F.3d at 1216-17 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Mr. Roberts alleged that IBM’s stated reason for firing him — poor performance — was implausible because the company didn’t consistently express negative views of his job performance: even though it criticized his work on occasion, at other times it told him he was improving. But changes in an employer’s estimation of its employee’s job performance, without more, cannot establish pretext as a matter of law. To suggest pretext, Mr. Roberts would have had to advance evidence that IBM’s changed evaluation of his performance wasn’t honestly arrived at. That he did not do, and the Tenth Circuit concluded he could not do with this record.

Mr. Roberts made state law claims based on Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). First, the court concluded there were simply no facts in the record to support the conclusion that age was either a significantly motivating or a but-for factor behind Mr. Roberts’s discharge. Second, Roberts argued his termination came about as retaliation for his decision to voice concerns about his supervisors’ attitude toward his age. Even assuming for argument’s sake a retaliation claim under Burk is not in some way preempted by federal law, the Tenth Circuit saw no evidence in the record that could persuade a rational trier of fact that Mr. Roberts should prevail. Finally, nothing in the record suggested IBM’s conduct came anywhere close to conduct that met Oklahoma’s requirements for intentional infliction of emotional distress.

The district court’s grant of summary judgment was AFFIRMED.