F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 30 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
BOBBIE R. ANDERSON,
Plaintiff-Appellant,
v. No. 98-1261
COORS BREWING COMPANY,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 97-CV-1857-N)
Mark A. Neider (John M. Connell with him on the briefs), of The Connell Law Firm,
Denver, Colorado, for Plaintiff-Appellant.
K. Preston Oade, Jr. (Katherine J. Peck and Kelly M. Condon on the brief), of Holme,
Roberts, & Owen, Denver, Colorado, for Defendant-Appellee.
Before BALDOCK, KELLY, and MURPHY, Circuit Judges.
BALDOCK, Circuit Judge.
Plaintiff Bobbie R. Anderson appeals the district court’s order granting summary
judgment to Defendant Coors Brewing Company. Plaintiff’s complaint alleged that
Defendant terminated her because of her disability in violation of the Americans With
Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Plaintiff also alleged that she was
discharged in retaliation for filing a claim with the Equal Employment Opportunity
Commission (EEOC). Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.
I.
Plaintiff suffers from multiple sclerosis (MS), a chronic nerve disorder for which
no cure exists. As a result, Plaintiff suffers from numbness, pain, fatigue, cramps, blurred
vision, fainting spells, forgetfulness, loss of balance and incontinence. Plaintiff’s
condition limits, among other things, her ability to lift heavy objects, work in a hot
environment and stand for long periods of time.
On May 20, 1996, Defendant hired Plaintiff as a Temporary Production Operator
(TPO). TPO positions may last no longer than 1,480 hours and persons filling the
positions do not receive medical or dental benefits, life insurance or paid vacation time.
TPOs are expected to work at a variety of locations throughout Defendant’s brewery on
an “as needed” basis. Although TPOs are not required to perform every job in the
brewery without assistance, a TPO must be able to perform a wide variety of functions in
a wide variety of conditions. For example, TPOs may be required to lift heavy objects,
climb ladders, walk on suspended walkways, inspect cans, stack pallets, clear jams in the
production line, and operate machinery in environments described as hot, cold, moist,
damp, noisy and dusty.
While working for Defendant, Plaintiff worked above “the ovens” retrieving cans
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thrown from the conveyor system, on the loading docks making cardboard boxes, filling
boxes with defective cans, retrieving empty pallets, placing boxes of cans on the pallets,
taping the boxes, and labeling pallets. Plaintiff also worked as a can sorter. On June 28,
1996, Plaintiff missed work for what she described as flu-like symptoms. She returned
the next working day. On July 2, 1996, Plaintiff’s husband informed Defendant that
Plaintiff was having work-related difficulties. Defendant’s representantives met with
Plaintiff to discuss her problems. She informed them that she suffered from MS and was
being pushed too hard. Defendant referred Plaintiff to its medical center for evaluation
and informed her that it would attempt to accommodate any work restrictions. The
medical center sent Plaintiff to her own physician.
Plaintiff’s physician, Dr. Henbest, placed her under several preliminary work
restrictions which she reported to Defendant. Initially, Dr. Henbest suggested that
Plaintiff be allowed to work in a cool environment; preferably less than eighty degrees
Fahrenheit. Later, he opined that Plaintiff could not:
a. operate man lifts, forklifts, motor vehicles, or high-speed or dangerous
machinery.
b. walk or stand more than twenty minutes per hour.
c. stoop, bend or twist more than ten times per hour.
d. lift over twenty pounds to a height of thirty inches more than ten times per
hour.
e. push or pull over twenty pounds more than ten times per hour.
f. climb ladders, racks, etc.
g. work at unprotected heights over six feet.
h. work more than eight hours per day.
Plaintiff requested that Defendant accommodate her disability by allowing her to sit on a
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stool while she sorted cans, wear a camel back water bottle to control her internal heat,
place a fan or other cooling device near her to control her external heat and to supply her
with a safety harness when necessary. Defendant examined Plaintiff’s work restrictions
and her requests for accommodation and determined that she could not perform the
functions required to work as a TPO. Therefore, on October 4, 1996, Defendant
terminated her employment.
Plaintiff filed suit in the district court alleging that Defendant violated the ADA by
terminating her because she suffered from MS. Plaintiff also alleged that Defendant
terminated her because she filed a complaint with the EEOC. Defendant filed a motion
for summary judgment arguing that: (1) Plaintiff was not disabled; (2) Plaintiff was not
qualified for the position even with reasonable accommodation; and (3) Plaintiff failed to
establish that Defendant’s proffered reason for terminating her was pretextual. The
district court determined that Plaintiff was not qualified for the position and that she
failed to demonstrate that Defendant’s reason for firing her was pretextual. Accordingly,
the court granted Defendant’s motion for summary judgment. The instant appeal ensued.
II.
A.
Plaintiff contends that the district court erred in granting Defendant’s motion for
summary judgment. We review the district court’s grant of summary judgment de novo.
Marx v. Schnuck Markets, Inc., 76 F.3d 324, 327 (10th Cir. 1996). Applying this
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standard, we examine the factual record and reasonable inferences drawn therefrom in a
light most favorable to the nonmoving party. Byers v. City of Albuquerque, 150 F.3d
1271, 1274 (10th Cir. 1998). We will uphold the decision only if no genuine issue of
material fact exists and the party is entitled to judgment as a matter of law. Marx, 76 F.3d
at 327. A mere scintilla of evidence supporting the nonmoving party’s theory does not
create a genuine issue of material fact. Id. Instead, the nonmoving party must present
facts such that a reasonable jury could find in its favor. Id.
In order to sustain a claim under the ADA, Plaintiff must establish that:
1. she is a disabled person within the meaning of the ADA;
2. she is qualified, i.e., she can, with or without reasonable accomodation
perform the essential functions of her job; and
3. the employer terminated her because of her disability.
White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir. 1998). The parties do not
dispute on appeal that Plaintiff has provided evidence that she is disabled within the
meaning of the ADA. Accordingly, we must determine whether she is “qualified” under
the ADA.
We have adopted a two-part test for determining whether a person is qualified
under the ADA. Milton v. Scrivener, 53 F.3d 1118, 1123 (10th Cir. 1995). First, we
examine whether the individual can perform the essential functions of the job, i.e.,
functions that bear more than a marginal relationship to the job at issue. Id. Second, if
we conclude that the individual is not able to perform the essential functions of the job at
issue, we must determine whether any reasonable accommodation by the employer would
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enable her to perform those functions. Id.
In determining whether Plaintiff was qualified, the district court looked at the
essential functions which must be performed by a TPO. Examining those functions, the
district court concluded that Plaintiff was not qualified for the job. Plaintiff argues that
the district court erred by defining the essential functions of her employ as those of a
TPO. Plaintiff contends that she was hired as a can sorter, not a TPO. Thus, she argues,
the district court should have limited its inquiry to the essential functions of a can sorter.
We disagree.
The record clearly shows that Defendant hired Plaintiff as a TPO and assigned her
to a can sorting line. She admitted as much in both her opening brief and her response to
Defendant’s motion for summary judgment. Plaintiff’s argument is nothing more than an
attempt to twist from the appellate record an issue of fact where none exists.
We also reject Plaintiff’s argument that the district court should have considered
only the essential functions of a can sorter position because she spent most of her time in
that position. Plaintiff worked for Defendant for sixteen days. Although she spent the
majority of her time on the can-sorting line, she worked in five different areas and
performed a variety of tasks. Defendant requires TPOs to perform numerous tasks on an
as needed basis for a period of approximately 185 days. The fact that Defendant spent the
majority of her sixteen days on the can sorting line does not mean that Defendant
narrowed her job description from TPO to can sorter. The district court properly
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considered the essential functions of a TPO in determining whether Plaintiff was
qualified.
Plaintiff further contends that the district court’s failure to limit its determination
of essential functions to those of a can sorter effectively undermines the protections
afforded by the ADA. The crux of this argument appears to be that the TPO position is so
demanding that nobody can perform all of the functions of the job. Thus, Plaintiff
contends that an employer may undermine the ADA by hiring people as a TPO and, upon
learning that they are disabled, fire them under the guise that they are not able to perform
the essential functions of the job. We disagree.
It is not the province of the court to undermine the legitimate operation of a
production facility. Milton, 53 F.3d at 1124. In many situations, an employer may create
a position, the nature of which, requires an employee to perform a multitude of tasks in a
wide range of environments. The Seventh Circuit recently examined such a position. In
Miller v. Illinois Dept. of Corrections, 107 F.3d 483, 485 (7th Cir. 1997), a corrections
officer was involved in a serious car accident. As a result, she suffered severe vision
impairment which required the use of a seeing-eye dog. Because of her problem, the
Department of Corrections (DOC) terminated her because she could not perform the
essential functions of her job.
The DOC described the essential functions of the job as standing guard, counting
inmates, inspecting for contraband, escorting inmates outside their cells, searching
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inmates and visitors, searching for escaped prisoners, being on 24-hour call to respond to
emergencies, operating a switchboard and issuing guns to correctional officers. The
plaintiff filed suit alleging violation of the ADA. She argued that she was a qualified
individual because she could operate the switchboard and issue guns to officers.
Rejecting her argument, the Seventh Circuit explained:
It seems to us . . . that if an employer has a legitimate reason for specifying
multiple duties for a particular job classification, duties the occupant of the
position is expected to rotate through, a disabled employee will not be
qualified for the position unless [s]he can perform enough of these duties to
enable a judgment that [s]he can perform its essential duties . . . If it is
reasonable for a farmer to require each of his farmhands to be able to drive
a tractor, clean out the stables, bale the hay, and watch the sheep, a
farmhand incapable of performing any of these tasks except the lightest one
(watching the sheep) is not able to perform the essential functions of the
position . . . . In the case of correctional officers . . . the reason for having
multiply able workers who rotate through the different duty positions is to
be able to respond to unexpected surges in the demand for particular
abilities. The prison has to be able to call upon its full staff of correctional
officers for help in putting down a prison riot, and therefore each officer
must have experience in the positions . . . as well as the capability [to
respond]. It would not do to have a correctional officer whose only
experience and capability were in operating a telephone switchboard or
issuing weapons.
Id.
The record clearly demonstrates that the TPO position is a multiple duty job
classification which serves a legitimate business purpose. Defendant runs a large
operation which brews, packages and ships its product. The TPO position allows
Defendant to rotate workers on an as needed basis to different parts of its operation in
response to “surges in the demand for particular abilities.” See id. It is employer’s
8
province to define the job and the functions required to perform it. Milton, 53 F.3d at
1124. The record contains no evidence suggesting that the TPO position does not serve a
legitimate business purpose. Accordingly, we will not secondguess the employer’s
judgment.
B.
Citing no relevant authority, Plaintiff next argues that the district court erroneously
determined that no issue of fact exists as to whether she could perform the essential
functions of her job with reasonable accommodation. Although unclear, this argument
appears to restate, at least in part, her argument that the essential functions of her job are
those of a can sorter, not a TPO. We have rejected this argument and need not repeat
ourselves here. Suffice to say, the essential functions of her job are clearly those of a
TPO and not a can sorter.
Plaintiff’s brief could also be construed as arguing that the district court failed to
recognize a genuine issue of fact as to whether modification of her work assignment was
a reasonable accomodation.1 Thus, we must examine the accommodation she contends is
reasonable. Plaintiff suggests that Defendant could reasonably accommodate her by
placing her on the can-sorting line, providing localized air-conditioning and allowing her
1
We note that while Defendant argues a reasonable accommodation in this case
would be to limit the assignments she could receive as a TPO, she does not argue that
Defendant was required to reassign her to another position within the company. See
Smith v. Midland Brake, Inc., __F.3d__, 1999 WL 387498 (10th Cir. 1999) (en banc).
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to sit on a stool while wearing a camelback water pack.
Plaintiff’s requested accommodation is unreasonable. Plaintiff’s request would
transform the TPO position from one which requires an employee to perform multiple
tasks ranging from visual inspection of cans, to heavy lifting, to climbing ladders, to
operating machinery, to one which requires an employee to sit in one place and perform
one task. Such a request fundamentally alters the nature of the position. Defendant is
under no obligation to change the structure of its business or create a new position for
Plaintiff. Milton, 53 F.3d at 1124-25. Nor is Defendant required to make its other TPOs
perform all of the operation’s demanding tasks while Plaintiff performs only certain light
tasks. Id. Because Plaintiff requests accommodations which Defendant is not legally
obligated to make, we reject this argument as well.
For the foregoing reasons, we conclude Plaintiff failed to show that she could
perform the essential functions of a TPO position with or without reasonable
accommodation. Accordingly, the district court properly concluded that Plaintiff failed to
establish a prima facie case of discrimination under the ADA.
C.
We turn next to Plaintiff’s retaliation claim. The analytical framework pronounced
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), guides our review
of this claim. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Under that
framework, Plaintiff must establish a prima facie case of retaliation. Id. Once the
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Plaintiff establishes a prima facie case, the burden shifts to Defendant to come forward
with a non-discriminatory reason for its employment decision. Id. If the employer
presents a non-discriminatory reason for its decision, the burden shifts back to the
Plaintiff to show that “there is a genuine issue of material fact as to whether the
employer’s proferred reason for the challenged action is pretextual, i.e., unworthy of
belief.” Id.
In considering Plaintiff’s retaliation claim, the district court determined that
Plaintiff made a prima facie case based on the temporal proximity of her termination to
her EEOC and ADA complaints. In response to the prima facie showing, Defendant
presented evidence showing that it terminated Plaintiff because she was not qualified for
her position. The district court found that Plaintiff failed to show that Defendant’s
proffered reason for terminating her was pretexual. Thus, the district court granted
Defendant’s motion for summary judgment.
Defendant urges us to uphold the grant of summary judgment on the grounds that,
contrary to the district court’s finding, Plaintiff failed to prove a prima facie case of
retaliation. In order to establish a prima facie case, Plaintiff must show:
1) she engaged in a protected activity;
2) she was subjected to adverse employment action subsequent to or
contemporaneous with the protected activity; and
3) a causal connection between the protected activity and the adverse employment
action.
Morgan, 108 F.3d at 1324. By filing an EEOC claim, Plaintiff engaged in protected
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activity. McCue v. State of Kansas, 165 F.3d 784, 789 (10th Cir. 1999). Thus, we must
determine whether she was subjected to adverse employment action.
This circuit liberally defines the phrase “adverse employment action.” Jeffries v.
Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998). We have not, however, defined a set rule
regarding what constitutes an “adverse employment action.” Id. Instead, we take a case-
by-case approach in determining whether a given employment action is “adverse.” Id.
We do so recognizing that the ADA, like Title VII, is neither a “general civility code” nor
a statute making actionable the “ordinary tribulations of the workplace.” Gunnell v. Utah
Valley State College, 152 F.3d 1253, 1265 (10th Cir. 1998).
Plaintiff presents two items of evidence which she claims are “adverse
employment actions.” First, she claims Defendant’s act in terminating her is an adverse
employment action. Second, she claims she suffered “adverse employment action” when
someone placed “harassing” phone calls to her home from one of Defendant’s phone
lines.
We conclude that Plaintiff suffered adverse employment action when Defendant
terminated her. See Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir.
1998). The phone calls, however, do not constitute adverse employment action. The
phone calls, placed from one of Defendant’s phone lines, consisted of background music
with occasional laughter. The caller[s] did not mention Plaintiff’s EEOC claim, made no
threats, and gave no indication of their identity. Plaintiff presents no evidence that the
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calls were placed by any of Defendant’s employees with decision-making capacity or that
management condoned the activity. While the calls were no doubt annoying, they do not
amount to adverse employment action.
Having concluded that the only adverse employment action suffered by Plaintiff
was her termination, we must now determine whether termination, standing alone, is
sufficient to establish causation. The date of Plaintiff’s termination is key to this inquiry
because the closer it occurred to the protected activity, the more likely it will support a
showing of causation. Compare Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d
584, 596 (10th Cir. 1991) (one and one-half month period between protected activity and
adverse action may, by itself, establish causation) with Richmond v. ONEOK, Inc., 120
F.3d 205, 209 (10th Cir. 1997) (three-month period, standing alone, is insufficient to
establish causation). Some confusion exists as to when Plaintiff was terminated.
Defendant contends that it terminated Plaintiff on October 4, 1996. Plaintiff filed an
EEOC complaint on July 28, 1996, alleging that she was terminated on July 8, 1996. In
her briefs, Plaintiff contends that she was not terminated until after August 27, 1997. In
determining whether a causal nexus exists, we will accept the date most favorable to her,
October 4, 1996.2 Byers, 150 F.3d at 1274.
2
Assuming she was terminated on July 8, 1996, Plaintiff cannot make a prima facie
showing of retaliation. Plaintiff did not file a charge with the EEOC until July 25, 1996.
Keeping in mind that Plaintiff contends she was fired for filing this charge, there can be
no retaliation under this scenario because the charge was filed after her termination. See
Gunnell, 152 F.3d at 1262 (employee must be subjected to adverse employment action
13
Accepting the October 4, 1996 date as true, Defendant terminated Plaintiff
approximately two months and one week after she filed her EEOC claim. A retaliatory
motive may be inferred when an adverse action closely follows protected activity.
Chavez v. City of Arvada, 88 F.3d 861, 866 (10th Cir. 1996). However, unless 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. Connor v.
Schnuck Markets, Inc., 121 F.3d 205, 209 (10th Cir. 1997) (emphasis added). For
example, we have held that a one and one-half month period between protected activity
and adverse action may, by itself, establish causation. Ramirez, 41 F.3d at 596. By
contrast, we have held that a three-month period, standing alone, is insufficient to
establish causation. Richmond, 120 F.3d at 209. Thus, we find ourselves three weeks
short of three months and three weeks past one and one-half months. We need not decide
on which side the line should be drawn, however, because assuming two months and one
week is sufficient to support a prima facie case of retaliation, Plaintiff cannot prove that
Defendant’s proffered reason for terminating her was pretextual.
A plaintiff may show pretext by demonstrating “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence and hence infer that the employer did not act for the asserted non-discriminatory
subsequent to or contemporaneous with the protected activity).
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reasons.” Morgan, 108 F.3d at 1323. Mere conjecture that the employer’s explanation is
pretext is insufficient to defeat summary judgment. Id.
The district court found that Plaintiff established a prima facie case of retaliation.
The burden then shifted to Defendant who asserted that it terminated Plaintiff because she
was not qualified to perform her job with or without reasonable accomodation. The
district court concluded that Plaintiff failed to show pretext and granted summary
judgment in Defendant’s favor.
Plaintiff contends that the district court erroneously concluded that she did not
present evidence showing Defendant’s argument was pretextual. First, she argues that a
genuine issue of material fact existed as to whether she was qualified for the position,
thus, a fact issue exists as to whether Defendant’s proferred reasoning for terminating her
was pretextual. Second, she argues that she rebutted Defendant’s reason for terminating
her by presenting evidence that she received harassing phone calls from Defendant’s
place of business before she was terminated.
We do not agree with either argument. As previously discussed, the record clearly
shows that Plaintiff cannot perform the essential functions of her job and is, therefore, not
qualified. Similarly, the “harassing” phone calls are so innocuous in nature that they
cannot undermine Defendant’s proffered reason for terminating her. Thus, Plaintiff is left
with the temporal proximity between filing her EEOC complaint and termination.
Assuming the time between Plaintiff’s termination and filing her EEOC claim is
15
sufficient to survive summary judgment in regard to establishing a prima facie case, it
cannot overcome Defendant’s proffered reason for terminating her. The evidence
overwhelmingly supports Defendant’s proffered reason and Plaintiff presents nothing
which would cause a reasonable finder of fact to determine that the reason is unworthy of
belief. See Grady v. Shawnee Public School District I-93, 1998 WL 852533 at *6 (10th
Cir. 1998) (unpublished); Jackson v. Delta Special School Dist. No. 2, 86 F.3d 1489,
1494-95 (8th Cir. 1996). Therefore, Plaintiff cannot show pretext. The district court
properly granted summary judgment on this claim.
AFFIRMED.
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