F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 11 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
TIMOTHY G. MCNEEL,
Plaintiff-Appellant,
v. No. 96-1280
(D.C. No. 93-K-2304)
PUBLIC SERVICE COMPANY OF (D. Colo.)
COLORADO, a Colorado corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, LUCERO and MURPHY, Circuit Judges.
Plaintiff Timothy G. McNeel appeals from the entry of summary judgment
in favor of his former employer, defendant Public Service Company of Colorado
(“Public Service”). Mr. McNeel contends the district court erred with respect to
his claims under the Americans With Disabilities Act (“ADA”), 42 U.S.C. §
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the
Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. 1
We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
Appellant was an employee of Public Service from 1990 until 1992. In
1990, he was suspended for one day following his dissemination of an offensive
e-mail message containing religious and sexual comments about his supervisor,
Susan Hawk. In 1991 he again received an official reprimand, this time for
making sexist and racist remarks to clients. Hawk gave appellant an
“unsatisfactory” rating on his 1991 annual performance evaluation.
Subsequently, appellant underwent liver enzyme tests. He was diagnosed
with Hepatitis C, which apparently causes fatigue and loss of appetite, and may
ultimately necessitate a liver transplant. Appellant discussed his medical
condition and potential treatment needs with Hawk. Thereafter, he began
reporting to Mark Severts, who was also aware of his illness. In appellant’s 1992
performance evaluation, Severts rated him “fully competent.”
A corporate reorganization occurred in April of 1992, and many positions
within Public Service were revised. All but a few employees were required to
1
On appeal, McNeel’s sole reference to ERISA appears in his Statement of Subject
Matter and Appellate Jurisdiction. He has therefore abandoned this claim, and we do not
address it further. See Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1 (10th
Cir. 1992) (issue mentioned in appellate brief deemed waived if not addressed), modified
on other grounds on reh’g, 995 F.2d 992 (10th Cir 1993).
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reapply for “new” positions. The application process required applicants to rate
the positions they sought in order of preference. Appellant applied for nine
positions, none of which reported to Hawk. Four of the prospective positions
reported to Thomas Currigan, four to Severts, and one to Stephen Volstad.
Appellant was not selected for any of these reorganized positions and was laid
off. This action ensued.
We review the district court’s grant of summary judgment de novo.
Webber v. Mefford, 43 F.3d 1340, 1342 (10th Cir. 1994). Summary judgment is
appropriate where “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Ultimately, the question is “‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.’” Bingaman v. Kansas City Power & Light
Co., 1 F.3d 976, 980 (10th Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986)).
Appellant contends his medical condition precipitated Public Service’s
decision not to rehire him. Cases involving the Rehabilitation Act and the ADA
are analyzed under the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Morgan v. Hilti, Inc.,
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108 F.3d 1319, 1323 (10th Cir. 1997). To qualify for relief under the ADA, 2 a
plaintiff must establish (1) he is “disabled”; (2) he is qualified (able to perform
essential functions of job with or without reasonable accommodation); and (3) the
employer took adverse action on account of his disability. See White v. York
Int’l Corp., 45 F.3d 357, 360-361 (10th Cir. 1995).
We assume without deciding that appellant has established a prima facie
case. When such a showing is made, a presumption arises that the employer
unlawfully discriminated against the employee. See Greene v. Safeway Stores,
Inc., 98 F.3d 554, 558 (10th Cir. 1996) (quoting St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 506 (1993)). The burden then shifts to the defendant, who
can rebut the presumption by “articulat[ing] a facially nondiscriminatory reason
for the adverse employment decision.” Marx v. Schnuck Markets, Inc., 76 F.3d
324, 327 (10th Cir. 1996). Here, Public Service contends appellant was not
rehired because other applicants had preferable qualifications and work histories.
There can be little doubt that these are facially nondiscriminatory reasons for
hiring one person over another. Public Service has carried its burden, thereby
rebutting the presumption of discrimination.
2
The ADA provides: “[n]o covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual 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).
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Consequently, in order to prevail, appellant must “show that there is a
genuine dispute of material fact as to whether the employer’s proffered reason for
the challenged action is pretextual—i.e. unworthy of belief.” Randle v. City of
Aurora, 69 F.3d 441, 451 (10th Cir. 1995), cert. denied, 116 S. Ct. 2552 (1996).
Pretext is established where a plaintiff demonstrates “that a discriminatory reason
more likely motivated the employer or that the employer’s proffered explanation
is unworthy of credence.” Marx, 76 F.3d at 327-28 (citation and quotation
omitted). Upon such a showing, the case proceeds to trial. Ingels v. Thiokol
Corp., 42 F.3d 616, 622 (10th Cir. 1994).
Appellant argues that Public Service’s proffered reasons are pretextual, but
puts forth little evidence in support of that contention. He maintains Hawk made
comments which evidence disability-based discrimination. However, in order to
support an inference of discrimination, appellant must demonstrate a nexus
between the discriminatory remarks and the challenged action. See Cone v.
Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994). He is unable
to do so. Hawk was not involved in the layoff decisions about which appellant
complains.
With respect to Public Service management under whom appellant applied
to work and who therefore have the requisite nexus under Cone, none displayed
discriminatory animus. There is insufficient evidence in the record to conclude
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that Thomas Currigan or Stephen Volstad knew of appellant’s medical condition
at the time they selected others, over appellant, to fill the vacant positions. 3 As a
result, discriminatory intent may not be inferred. See Phelps v. Field Real Estate
Co., 991 F.2d 645, 650 (10th Cir. 1993).
Mark Severts presents a closer question. It is undisputed that Severts knew
of appellant’s illness throughout the reorganization process. Appellant contends
Severts went from being “warm and friendly” to “very distant and . . . not
friendly” after learning of his illness, asked on several occasions about the
contagious nature of the illness, 4 and made comments concerning “work
3
The only evidence suggesting Currigan or Volstad knew of appellant’s illness
prior to the time he was laid off is appellant’s assertion that both Currigan and Volstad
participated in reorganization meetings involving extensive discussion of personnel
issues. Even when viewed in a light most favorable to appellant, see Kaul v. Stephan, 83
F.3d 1208, 1212 (10th Cir. 1996), such a contention, standing alone, is insufficient to
create a genuine issue of material fact regarding their knowledge of appellant’s medical
condition at the time the rehiring decisions were made.
4
The force of appellant’s assertion regarding Severts’ inquiries about the
contagious nature of his illness is substantially undercut by his own testimony:
Q: “I think what you said was [Severts] asked you about the contagious aspect of the
disease five times.”
A: “Right, but it wasn’t—I mean it was not like he just came up to me and said, ‘You
are really not contagious, are you?’ No, it was within the context of a conversation
about how are you doing, how is it going, are you sure you shouldn’t be away from
this environment, and that kind of thing.”
Appellant’s App. at 81.
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performance and lost time.” 5 Given our review of the record, these allegations
are too nebulous to stave off summary judgment.
Severts explained in detail why he selected others for the open positions,
see Appellant’s App. at 48-53, and appellant does not dispute that the individuals
selected were “as qualified” or “more qualified” than he, id. at 133. Additionally,
appellant concedes (1) Severts’ knowledge of his medical condition had no impact
whatsoever on the favorable performance evaluation given to him by Severts after
Severts learned of his illness, id. at 80; (2) Severts was concerned about
appellant’s health, id. at 81-82; (3) Severts treated him in a professional manner,
id. at 82; and (4) Severts never displayed an adverse reaction to appellant’s illness
“like [the one] from Su Hawk,” id.
We agree with the district court that appellant has failed to put forth
sufficient evidence indicating a genuine dispute of material fact regarding
whether Public Service’s proffered reasons for the challenged employment action
were pretextual. This case cannot be submitted to a jury because “it is so one
5
Beyond his contention that such comments were made, appellant does not
specifically identify the context or substance of Severts’ remarks concerning “work
performance and lost time.” We searched the record but were unable to locate more
evidence on this point. In evaluating these allegations, we note that appellant must
provide “essential references to the record to carry his burden of proving error.” SEC v.
Thomas, 965 F.2d 825, 827 (10th Cir. 1992).
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sided that [Public Service] must prevail as a matter of law.” See Bingaman, 1
F.3d at 980.
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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