F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 30 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
SUSAN LANMAN,
Plaintiff - Appellant,
No. 03-3316
vs.
JOHNSON COUNTY, KANSAS,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 02-CV-2301-CM)
Kirk D. Holman, Sanders, Simpson & Fletcher, L.C., Kansas City, Missouri, for
Plaintiff - Appellant.
Lawrence L. Ferree, III, (Kirk T. Ridgway with him on the brief) Ferree, Bunn,
O’Grady & Rundberg, Chtd., Overland Park, Kansas, for Defendant - Appellee.
Before KELLY, HOLLOWAY, and LUCERO, Circuit Judges.
KELLY, Circuit Judge.
Plaintiff-Appellant Susan Lanman appeals from a grant of summary
judgment in favor of her former employer, Defendant-Appellee Johnson County
Sheriff’s Department (“County”) on her hostile work environment and
constructive discharge claims under the Americans with Disabilities Act, 42
U.S.C. §§ 12101-12213. (“ADA”). Our jurisdiction arises under 28 U.S.C.
§ 1291, and we affirm.
Background
Viewing the proper summary judgment evidence 1 in the light most
favorable to Ms. Lanman, the record establishes the following facts. Ms. Lanman
began working for the County as a deputy sheriff in 1987. Beginning in March
2001, Ms. Lanman testified on deposition that some of her co-workers in the
Classification Unit began treating her as if she were mentally ill, sometimes
calling her “nuts” or “crazy.” She claims that when someone “hyped up on drugs”
or “hostile” would be placed in a special holding cell (1A4), Deputy Judd
Brungardt would tell her “Lanman, there is someone like you. Go get your
relative out of 1A4. They act just like you.” She also testified Deputy Bernie
Beletsky made comments like the following approximately once a week: “Oh
Lanman, you are going off the deep end again,” or “Let’s give her some chocolate
1
See Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.
2000) (“Hearsay testimony that would be inadmissible at trial cannot be used to
defeat a motion for summary judgment because ‘a third party’s description of a
witness’ supposed testimony is ‘not suitable grist for the summary judgment
mill.’” (citations omitted)).
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and let’s see her go off the deep end,” and “Are you off your medication?,” or
“Why don’t you try a different medication.” When she approached Sergeant
David Haney about an inmate with erratic and agitated behavior who Ms. Lanman
thought was in a manic phase, Sergeant Haney told her “Are you okay? You’re
scaring me.” Sergeant Haney also told her she had a “flat affect.”
Ms. Lanman admitted that officers commonly teased each other, and that
some of the comments made about her were good natured. She also admitted
some officers disliked her, and that this was the reason she was ridiculed.
Further, she thought some people disliked her because “[she] was the only female
back in classifications . . . It was a boys club back there and [she] didn’t fit in.”
In April 2001, after Ms. Lanman had been working in Classifications for
several years, she made serious errors misclassifying inmates, and she was
transferred to Operations. Commenting on her transfer, she patted a fellow
Classifications deputy on the cheek three times and said, “I sure am going to miss
working with you Pieruccie. You are one of the nice ones that I had to work
with.” Deputy Pieruccie filed a written report of the incident saying her actions
“confused [him] and made [him] feel very uncomfortable.” Sergeant Haney also
filed a written report claiming that on May 8, Ms. Lanman veered her vehicle
back and forth in the parking lot as she drove towards him and Deputy Michael
Jackson, and made a vulgar gesture. However, Deputy Jackson’s report does not
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corroborate Sergeant Haney’s allegations, and Ms. Lanman denies the incident.
Based on these events, Ms. Lanman was placed on administrative leave on
May 9, pending the results of a psychological fitness for duty exam. The treating
physician found no signs she was unfit for duty and cleared her to return to work.
She was never disciplined for the incidents reported by Haney or Pieruccie. Upon
returning to duty on June 13, Ms. Lanman was interviewed by Captain Brett
Cortright. They discussed her prior problems, and he told her she was starting
fresh without regard to the past. Ms. Lanman became emotional and stated she
did not understand why people thought so negatively of her. Captain Cortright
told her she should consider quitting if things were not working out for her, and
she was relieved from further duty that day due to her emotional state.
On June 18, Ms. Lanman reported for duty in her new unit and was
assigned to work with a training officer. She confronted her supervisors about the
assignment arguing that she was an experienced officer and did not need to be
trained; however, the assignment was not changed. She then went to her duty
station in the jail and yelled at her fellow officers in front of the inmates. As a
result, she was suspended for three days without pay.
After taking almost a month of medical leave, Ms. Lanman was set to
return to work in mid July. However, a few days before, the officers were
informed at roll call that she would be returning and told that any concerns they
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might have could be raised privately with the supervising sergeant. Upon hearing
this had occurred, Ms. Lanman submitted her resignation stating she wanted to
pursue other career opportunities, and she never returned to work. In a
termination form given to the County, she further stated she “felt the need to
voluntarily resign due to the extreme hostile conditions [she] faced repeatedly
since 2001.” She had never made any related written or oral grievances to the
County. On August 7, Ms. Lanman filed a discrimination charge with the Equal
Employment Opportunity Commission. She then filed suit against the County
alleging violations of the ADA.
Discussion
We review the district court’s grant of summary judgment and its
conclusions of law de novo, applying the same legal standard. Steele v. Thiokol
Corp., 241 F.3d 1248, 1252 (10th Cir. 2001). Summary judgment is appropriate
when “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). Thus, to survive summary judgment the plaintiff has
the burden to put forth sufficient evidence to warrant a verdict as a matter of law;
a scintilla of evidence will not suffice. Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 251 (1986). “When applying this standard, we view the evidence and draw
reasonable inferences therefrom in the light most favorable to the non-moving
party.” Steele, 241 F.3d at 1252.
A. Hostile Work Environment Claim under the ADA
Ms. Lanman asserts she was subjected to a hostile work environment in
violation of the ADA. We have not previously decided whether a hostile work
environment claim can be brought under the ADA. See Steele, 241 F.3d at 1252.
For the following reasons, we join our sister circuits that have held such claims
are actionable. See Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229 (5th
Cir. 2001); Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001); Shaver v.
Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003).
The ADA provides that no employer covered by the Act “shall discriminate
against a qualified individual with a disability because of the disability of such
individual in regard to . . . terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a) (emphasis added). Congress borrowed this language from
Title VII, which similarly provides that it “shall be an unlawful employment
practice for an employer to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1)
(emphasis added). Since 1986, well before the ADA was enacted in 1991, the
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Supreme Court has consistently held this language in Title VII encompasses a
hostile work environment claim. E.g., Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 66 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “Thus,
we can presume that Congress was aware of the Court’s interpretation of ‘terms,
conditions, or privileges of employment’ when it chose to use parallel language in
the ADA.” Fox, 247 F.3d at 175-76. See Cannon v. Univ. of Chi., 441 U.S. 677,
696-97 (1979) (“It is always appropriate to assume that our elected
representatives, like other citizens, know the law . . . .”). As such, Congress’
incorporation of this language into the ADA is indicative of its intent that the
language mean the same in the ADA as it does in Title VII.
The parallel purposes and remedial structures of the two statutes also
support a consistent interpretation. Both statutes seek to eliminate employment
discrimination against defined classes of people. Compare 42 U.S.C. § 12101(b)
(“It is the purpose of [the ADA] to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with
disabilities.”), with Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979)
(stating purpose of Title VII is to eliminate workplace discrimination), and Jones
v. Runyon, 32 F.3d 1454, 1456 (10th Cir. 1994) (same). Further, the ADA
explicitly provides that “[t]he powers, remedies, and procedures set forth in [Title
VII] shall be the powers, remedies, and procedures [the ADA] provides.” 42
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U.S.C. § 12117(a). Given these similarities, this court, and many others, have
used similar analyses when interpreting the two statutes. See Bristol v. Bd. of
County Comm’rs, 281 F.3d 1148, 1164 (10th Cir. 2002) (noting definition of
employer substantially similar and applying Title VII cases in ADA context),
vacated in part on other grounds by 312 F.3d 1213 (10th Cir. 2002) (en banc);
Butler v. City of Prairie Vill., 172 F.3d 736, 744 (10th Cir. 1999) (noting reasons
for precluding individual supervisor liability under Title VII apply equally to
ADA); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1230
(10th Cir. 1997) (“Congress’ decision to incorporate in the ADA the remedies and
procedures of Title VII cases is a clear indication, we think, that the statutory
intent requirement for injunctive relief should be applied in harmony under the
two acts.”); see also Brown v. Brody, 199 F.3d 446, 456 n.10 (D.C. Cir. 1999)
(listing cases) (“Courts of appeals routinely apply the same standards to evaluate
Title VII claims as they do ADA claims . . . .”).
In construing Title VII, the Supreme Court held, “The phrase ‘terms,
conditions, or privileges of employment’ evinces a congressional intent to strike
at the entire spectrum of disparate treatment of [gender] in employment.” Vinson,
477 U.S. at 64 (internal quotations and citation omitted). After reviewing the
similarities between Title VII and the ADA, nothing indicates that Congress
intended disability-based employment discrimination to be treated any less
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expansively. Thus, we hold that a hostile work environment claim is actionable
under the ADA, and we now turn to whether Ms. Lanman has successfully
established such a claim.
B. Ms. Lanman’s ADA Claim
The ADA is a “clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(1). Thus, as a threshold matter, any plaintiff asserting a claim under
the ADA must establish he or she is a “qualified individual with a disability.” 42
U.S.C. § 12112(a); Steele, 241 F.3d at 1252. “Disability” is defined by the ADA
as “(A) a physical or mental impairment that substantially limits one or more of
the major life activities of such individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Ms.
Lanman claims she is disabled under (C) because the County “regarded” her as
having a disability.
A person is regarded as disabled when “(1) a covered entity mistakenly
believes that a person has a physical impairment that substantially limits one or
more major life activities, or (2) a covered entity mistakenly believes that an
actual, nonlimiting impairment substantially limits one or more major life
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activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). 2 In
creating this category of disability, Congress recognized that “society’s
accumulated myths and fears about disability and disease are as handicapping as
are the physical limitations that flow from actual impairment.” Id. (quoting Sch.
Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987)). Because Ms. Lanman
asserts she does not have any actual impairments, to survive summary judgment
she must establish that a genuine factual issue exists regarding whether the
County (1) mistakenly perceived her as being impaired, and (2) mistakenly
believed the perceived impairment substantially limited at least one major life
activity. See MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1443 (10th Cir.
1996).
We think it doubtful that comments by non-supervisory co-workers about
2
“Is regarded as having such an impairment” means:
(1) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by a covered entity as
constituting such limitation;
(2) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(3) Has none of the impairments defined in [the regulations] but is
treated by a covered entity as having a substantially limiting
impairment.
29 C.F.R. § 1630.2(l).
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Ms. Lanman’s mental health establish that the County mistakenly perceived her as
mentally impaired. See Roberts v. Unidynamics Corp., 126 F.3d 1088, 1093 (8th
Cir. 1997). Personality conflicts among coworkers (even those expressed through
the use (or misuse) of mental health terminology) generally do not establish a
perceived impairment on the part of the employer. See Brunke v. Goodyear Tire
& Rubber Co., 344 F.3d 819, 822 (8th Cir. 2003); Watson v. City of Miami
Beach, 177 F.3d 932, 935 (11th Cir. 1999); Stewart v. County of Brown, 86 F.3d
107, 111 (7th Cir. 1996).
Nor does the County’s order that Ms. Lanman take a fitness for duty exam
show that Ms. Lanman was perceived as mentally impaired. 42 U.S.C.
§ 12112(d)(4)(A) (employer may order a medical exam when it is “shown to be
job-related and consistent with business necessity”); Cody v. CIGNA Healthcare
of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998). Ms. Lanman was a long-
time employee with a good employment history who suddenly became involved in
several troubling incidents affecting co-workers. As the Eighth Circuit noted,
“Employers need to be able to use reasonable means to ascertain the cause of
troubling behavior without exposing themselves to ADA claims . . . .” Cody, 139
F.3d at 599. This is especially true in professions like law enforcement where
employees are responsible for the care and safety of others. See Krocka v. City of
Chi., 203 F.3d 507, 515 (7th Cir. 2000); Watson, 177 F.3d at 935.
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However, even if we were to conclude Ms. Lanman has sufficiently
demonstrated that she was regarded as impaired, she simply has not shown a
genuine issue of facts exists as to whether the County believed the perceived
impairment substantially limited her in at least one major life activity. We
resolve the case on this basis.
A person is substantially limited when he or she is either unable or
significantly restricted in performing a major life activity that a person in the
general population can perform without significant restriction. Doebele v.
Sprint/United Mgm’t Co., 342 F.3d 1117, 1130 (10th Cir. 2003); 29 C.F.R.
§ 1630.2 (j)(1). Likewise, “a person is ‘regarded as having’ an impairment that
substantially limits the person’s major life activities when other people treat that
person as having a substantially limiting impairment.” MacDonald, 94 F.3d at
1444 (citation and internal quotations omitted).
Ms. Lanman claims she was regarded as substantially limited in the
activities of (1) working, (2) thinking, and (3) interacting with others. Working is
a major life activity. Rakity v. Dillon Cos., Inc., 302 F.3d 1152, 1158 (10th Cir.
2002); 29 C.F.R. § 1630.2(i). However, we have not decided whether thinking
and interacting with others are recognized major life activities. See Doyal v.
Okla. Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000) (both); Steele, 241 F.3d at
1255 (interacting with others). For purposes of our analysis, we assume, without
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deciding the issue, that they are.
An employee is perceived as substantially limited in working when the
employer believes the employee “is unable to perform either a class of jobs or a
broad range of jobs in various classes.” Doebele, 342 F.3d at 1133. See also
Sutton, 527 U.S. at 491-92. Here, while the County believed Ms. Lanman was
unable to perform her duties in the Classifications Unit, as evidenced by her
transfer, she was reassigned to a new position at her same rank. Further, after
ordering her to take a fitness for duty exam, the County accepted the
recommendation that she be cleared for duty and immediately allowed her to
return to work. Cf. Doebele, 342 F.3d at 1134 (“The supervisors’ disregard of the
assessment and recommendations of Ms. Doebele’s treating physician support the
inference that their actions were improperly based on myth, fear, and stereotype,
rather than an individualized evaluation of Ms. Doebele’s abilities.”). This
behavior clearly shows Ms. Lanman was not perceived as unable to perform an
entire class or broad range of jobs.
Assuming interacting with others is a recognized major life activity,
“‘mere trouble getting along with co-workers is not sufficient to show a
substantial limitation.’” Steele, 241 F.3d at 1255 (citing McAlindin v. County of
San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999)). Thus, Ms. Lanman would have
to show she was perceived by her employer as being unable to interact with
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people in general on a regular basis. Id. The interactions she experienced with
some of her co-workers do not satisfy this standard. Ms. Lanman had been
working for the County for over 13 years. In that time, the only recorded
problems between her and her co-workers occurred in the Spring of 2001. This
does not establish a pattern of failure to interact on a regular basis. Had the
County perceived her as substantially limited in her ability to interact, it would
not have reassigned her to a position where she was required to work directly with
inmates. Notifying other officers that she was returning to work and allowing
them to voice their concerns at most shows she was viewed as undesirable to
work with by some of her co-workers. The evidence before us is simply
insufficient to show that she was regarded as substantially limited in interacting
with people in general. Ms. Lanman also argues she was perceived as
substantially limited in the activity of thinking. Again, assuming this is a
recognized major life activity, the County’s behavior does not support this
conclusion.
Because Ms. Lanman has failed to establish that she was regarded as
substantially impaired with respect to a major life activity, she is not disabled
within the meaning of the ADA. Therefore, we do not address whether she was
subjected to a hostile work environment or whether she was constructively
discharged. Establishing a disability within the meaning of the Act is a threshold
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requirement for all ADA claims. Steele, 241 F.3d at 1252. Ms. Lanman has
failed to cross this threshold. Thus, we need not go any further.
AFFIRMED.
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