F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 24, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LYN N R . ZW YG AR T,
Plaintiff-Appellant,
v. No. 06-3084
BO AR D O F COU NTY
C OM M ISSIO N ER S O F JEFFERSON
CO UNTY , KANSAS,
Defendant-Appellee.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. NO . 05-CV-2050-JW L)
Alan V. Johnson, Sloan, Eisenbarth, Glassman, M cEntire & Jarboe, L.L.C.,
Topeka, Kansas, for Plaintiff-Appellant.
Carolyn L. M atthews (James D . Oliver, with her on the brief), Foulston Siefkin
LLP, W ichita, Kansas, for Defendant-Appellee.
Before KELLY, M cCO NNELL, and HO LM ES, Circuit Judges.
M cCO NNELL, Circuit Judge.
In 2002, the Jefferson County Road Department fired Lynn Zwygart from
his position as a truck driver after twelve years of attendance-related problems.
He was subsequently reinstated after signing a contract that expressly
acknowledged the County’s right to fire him for taking unpaid leave. In 2003, the
County exercised its contractual right and fired M r. Zwygart because he failed to
accrue sufficient paid leave, beyond the twelve weeks of leave provided by the
Family and M edical Leave A ct, to excuse his absence following an open-heart
surgery. M r. Zwygart sued, alleging that the County’s actions violated his rights
under the Americans with Disabilities Act and the Due Process Clause. The
district court granted the County’s motion for summary judgment on both claims.
W e agree that M r. Zwygart has not demonstrated a triable issue of fact on either
claim and therefore affirm the district court’s judgment.
I.
The Jefferson County Road Department hired M r. Zwygart as a truck driver
in 1986. After four years of apparently satisfactory performance, he began
displaying attendance problems: in 1990, he used 178 hours of leave without pay;
in 1996, he received a written warning for taking 172 hours of leave without pay
and 91 hours of sick leave “under questionable circumstances”; and in 1997, he
received a second written warning after taking 102 hours of leave without pay.
App. 42.
M r. Zwygart did not alter his behavior in response to the written warnings.
In 2000, he w as put on probation and later suspended for not providing doctor’s
notes to account for his time off. In June 2000, the County told M r. Zwygart that
-2-
he had failed to meet conditions imposed in 1997 for his continued employment,
including accumulating five days of sick leave and not taking leave without pay.
On October 9, 2000, Zwygart secured his supervisor’s written acknowledgment
that he had accumulated the required amount of sick leave; within five weeks of
doing so, however, he had used it all.
In September 2001, M r. Zwygart had open heart surgery. He exhausted his
annual statutory allotment of Family and M edical Leave Act leave while
recuperating before returning to work full tim e in December 2001.
M r. Zwygart’s first post-surgery annual performance review occurred in
July 2002. It culminated in this July 17, 2002, termination letter from his
supervisor:
I have reviewed your work performance evaluations and
performance history with Jefferson County Road Department and
have found it to be below satisfactory.
As you know from our prior communications, the failure to
improve your performance would result in termination from
employment. Your performance record this year falls far short of the
improvement necessary for you to be retained.
Consequently, this letter is to inform you that your
employment with Jefferson County has been terminated as of today.
App. 44.
M r. Zwygart contested this termination by filing a grievance as outlined in
the County’s employee handbook. The grievance procedure requires department
heads to respond to employee grievances “within three . . . working days” and
“sincere[ly] attempt . . . to resolve any grievance at this initial step.” Id. at 64.
-3-
The mechanism worked; eight days after he filed the grievance, M r. Zwygart was
reinstated after signing— while represented by counsel— a contract with the
County that made his continued employment contingent on these conditions: “1.
All use of sick leave will require a doctor slip. 2. For no reason will leave
without pay be granted. 3. Any violation of these conditions w ill result in
immediate termination.” Id. at 46.
The reinstatement contract, like the written warnings years earlier, did not
have much effect on M r. Zwygart’s actions. In February 2003, Zwygart’s
supervisor sent him another letter, w hich states in part:
Six months ago the County Commission and myself discussed
the problem w ith your work attendance.
At that time your work attendance w as unsatisfactory and as a
condition of employment you were instructed to do a better job of
managing your time off from work. As of today you are out of
vacation and sick leave. You’ve also used your discretionary day.
The only paid time off you’ve accrued is 2 1/4 hours of comp-time.
It’s clear that you do not intend to accumulate leave to prevent
time off due to unforeseen emergencies or medical needs. This w ould
cause you to take leave without pay, which I will not grant. You
have been warned that any use of leave without pay will result in
termination.
This letter is to notify you that I am placing you on probation
for the next six (6) months. During this time you will be required to
accumulate five (5) days of paid leave. . . .
Appellee’s Supp. App. 76.
In M ay 2003, three months after receiving this letter, M r. Zwygart was
diagnosed with a bacterial infection related to the prosthetic heart valve he had
received in his 2001 surgery. On M ay 19, his doctor provided a “Certification for
-4-
W ork” stating that M r. Zwygart “has been under my care from 05/12/2003 to
present” and “should be off work until further notice.” A pp. 47. Shortly
thereafter M r. Zwygart began a long-term intravenous antibiotics regimen that
continued until September 3, 2003, when he underw ent a second open heart
surgery to repair a leak around his prosthetic valve. His primary care physician
cleared him to return to work on November 28, 2003.
After receiving the M ay 19 work release from M r. Zwygart’s doctor, the
County granted Zw ygart twelve weeks of FM LA leave. W hen that leave expired,
Zwygart used his accumulated sick leave and vacation leave, as well as sick leave
other employees had donated to him. Combined, these sources allowed M r.
Zwygart to remain on approved leave through September 15, 2003— well short of
his November 28 return-to-w ork date.
Beginning September 15, 2003, the C ounty’s records list M r. Zwygart’s
absences as leave “without pay.” A pp. 56–57. The County classified his
absences as such until M r. Zwygart was fired on October 30, 2003, by this letter
from the C ounty engineer:
I regret having to write this letter to you. However, in my
capacity with the Jefferson County Road and Bridge Department, I
must notify you that you are no longer employed with the County.
As you know, you have long exhausted all sick, vacation and
other time, which you have used since the onset of your medical
condition. Additionally, the County has provided you more than the
12 weeks of unpaid medical leave required by the County’s Family
and M edical Leave Policy. Everyone was hopeful that your
condition would improve and that you could return to your position.
-5-
Unfortunately, that has not occurred and the County can no longer
hold your position for you. . . .
Id. at 52.
As he did two years earlier, M r. Zwygart filed a grievance contesting his
termination. This time, however, he received no response from his supervisor, so
he forwarded his complaint to the Board of County Commissioners as the
grievance policy instructs.
The Board appointed a committee to investigate M r. Zwygart’s grievance.
It held a hearing on December 1, 2003, where M r. Zwygart testified while
represented by counsel that his health was good and that he could return to w ork
as a truck driver. The committee took other evidence, including the November 28
letter from M r. Zwygart’s primary care physician. After the hearing, M r. Zwygart
submitted a note from his cardiologist dated December 3, 2003, that affirmed M r.
Zwygart’s capacity to return to work without restriction.
After reviewing the evidence, the committee issued a report on December 5
recommending that the Commission uphold M r. Zwygart’s termination for six
different reasons. Three days later, the Commission adopted the committee’s
recommendation and unanimously sustained M r. Zywgart’s termination.
M r. Zwygart then sued the County for wrongful discharge and failure to
accommodate in violation of the ADA, and for depriving him of a property
interest in his continued employment without due process in violation of the
-6-
Fourteenth A mendment. The County moved for summary judgment on all of M r.
Zwygart’s claims. The district court granted the County’s motion, holding that
M r. Zwygart was not disabled within the meaning of the ADA and that he failed
to establish he had a protected property interest in his employment. M r. Zwygart
timely appealed. W e have jurisdiction under 28 U.S.C. § 1291.
II.
A.
W e review de novo the district court’s grant of summary judgment. Adair
Group, Inc. v. St. Paul Fire & M arine Ins. Co., 477 F.3d 1186, 1187 (10th Cir.
2007). “Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). A genuine
issue of material fact exists when “the evidence, construed in the light most
favorable to the non-moving party, is such that a reasonable jury could return a
verdict for the non-moving party.” Id. (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 255 (1986)).
B.
M r. Zwygart first appeals from the district court’s grant of summary
judgment on his A DA claim. A prima facie case of ADA discrimination consists
of three elements: the plaintiff (1) is a disabled person as defined by the ADA; (2)
is qualified, with or without reasonable accommodation, to perform the essential
-7-
functions of the job held or desired; and (3) suffered discrimination by an
employer or prospective employer because of that disability. M acKenzie v. City
& County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). The district court
held that M r. Zwygart failed to establish the existence of a genuine issue of
material fact as to the first element, so it did not address the second and third
elements. W e agree that M r. Zwygart failed to introduce evidence from which a
reasonable jury could find that he was disabled.
Before reaching the merits of the district court’s holding, however, we must
address an argument raised by the County on appeal and pressed during oral
argument. According to the County, M r. Zwygart’s termination occurred on
October 30, 2003, the date he received a letter of termination signed by the
County engineer, his supervisor. Because it is undisputed that, as of October 30,
M r. Zwygart’s doctor had not released him to return to work, the County argues
that he could not have been a “qualified individual” within the meaning of the
ADA: with or without accommodation, he could not perform the essential
functions of the job. Appellee’s B r. 10; see Mason v. Avaya Com mc’ns, 357 F.3d
1114, 1119–22 (10th Cir. 2004) (describing “essential functions” test and holding
that regular job attendance can be an essential function). In response, M r.
Zwygart argues that his termination did not become official until December 8,
2003, when the grievance process w as complete and the B oard of Commissioners
adopted the recommended termination. Under these circumstances, the date of
-8-
termination would seem to be a question of law, and thus susceptible to resolution
on summary judgment. Our examination of the record reveals, however, that in
its reply brief in support of the motion for summary judgment, the County
expressly conceded that “as a result of Plaintiff’s filing of a grievance, the
effective date of his October termination became the date the Commission
adopted the findings of the committee, which occurred in December 2003.”
Appellee’s Supp. App. 160. W e must regard this concession as a waiver of the
issue.
Taking December 8 as the relevant date of termination, we turn to the
district court’s holding that M r. Zwygart was not disabled under the ADA.
Congress defined the term “disability” in the ADA three ways. 42 U.S.C. §
12102(2)(A)–(C). M r. Zwygart asserts that he is disabled under the second
definition— that he has “a record of” an impairment that substantially limits a
major life activity. Id. § 12102(2)(B). Under our precedent, a plaintiff seeking to
prove a disability under § 12102(2)(B) must prove five elements: (1) the plaintiff
has a record of, or has been misclassified as having, (2) a recognized impairment
that (3) the plaintiff “actually suffered” and that (4) substantially limited (5) a
major life activity. Doebele v. Sprint/United M gt. Co., 342 F.3d 1117, 1129,
1132 (10th Cir. 2003).
In this case, we are concerned mainly with the interplay between the fourth
and fifth elements of this “record of” disability test. M r. Zwygart’s A DA claim
-9-
centers on the major life activity of working, which is entitled to ADA protection.
See Rakity v. Dillon Cos., Inc., 302 F.3d 1152, 1158 (10th Cir. 2002). W e
determine whether an impairment “substantially limited” the major life activity of
working by considering several factors. Some of these— “(i) the nature and
severity of the impairment; (ii) the duration or expected duration of the
impairment; and (iii) the permanent or long term impact, or the expected
permanent or long term impact, of or resulting from the impairment”— apply to
any major life activity. Id. (internal quotation marks omitted). Others, however,
are specific to the major life activity of working; these “includ[e] the
geographical area to which the individual has reasonable access, and ‘the number
and types of jobs utilizing similar training, knowledge, skills or abilities, within
the geographical area, from which the individual is also disqualified.’” Sutton v.
United Air Lines, Inc., 527 U.S. 471, 492 (1999) (quoting 29 C.F.R. §
1630.2(j)(3)(ii)(A ), (B)).
These additional factors are relevant to determining whether an impairment
substantially limited the major life activity of w orking because the A DA’s
“statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs
allege they are unable to work in a broad class of jobs.” Id. at 491. “The
inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.” Id. (internal quotation marks
omitted). Thus,
-10-
[t]o be substantially limited in the major life activity of working, . . .
one must be precluded from more than one type of job, a specialized
job, or a particular job of choice. If jobs utilizing an individual’s
skills (but perhaps not his or her unique talents) are available, one is
not precluded from a substantial class of jobs. Similarly, if a host of
different types of jobs are available, one is not precluded from a
broad range of jobs.
Id. at 492.
Based on this precedent, the district court held that M r. Zwygart had not
created a triable issue of fact as to whether his impairment “substantially limited”
his major life activity of working because he “ha[d] not produced any evidence
that he was restricted by his doctors from working any job other than as a truck
driver for the County from M ay to D ecember 2003.” A pp. 104. M r. Zwygart
asserts on appeal, as he did below, that two pieces of evidence make that required
showing: his doctor’s M ay 19, 2003, certification for work stating that “Lynn
should be off work until further notice,” id. at 47; and his doctor’s letter dated
November 28, 2003, which states in part that M r. Zwygart’s cardiologist
“specifically told him that he could not work while on the intravenous antibiotics
and in the most recent perioperative period,” id. at 48.
This evidence is insufficient to preclude summary judgment. In at least
three cases, w e have affirmed a district court’s dismissal of an employee’s ADA
claim because the employee failed to provide “a single document or record
helpful in addressing his ‘vocational training, the geographical area to which he
has access, or the number and type of jobs demanding similar training from which
-11-
[he] would also be disqualified.’” Rakity, 302 F.3d at 1162 (quoting Bolton v.
Scrivner, Inc., 36 F.3d 939, 944 (10th Cir. 1994)); see also Selenke v. M ed.
Imaging of Colo., 248 F.3d 1249, 1257 (10th Cir. 2001) (“[T]here is no evidence
in the record from which a reasonable factfinder could conclude that, at the time
of her employment with M IC, M s. Selenke was unable to perform either a class of
jobs or a broad range of jobs in various classes as compared to the average
person.” (internal quotation marks omitted)). That same failure exists here. The
M ay 19 doctor’s certification establishes M r. Zwygart’s inability to w ork as a
County truck driver, but it says nothing of his vocational training, the
geographical area to which he had access, or the number and types of jobs at
which he could have worked— the exact kind of evidence our cases require to
avoid summary judgment. This evidentiary absence is fatal to M r. Zwygart’s
efforts to preclude summary judgment.
The November 28, 2003, physician’s note is likewise unavailing. In full,
the passage M r. Zwygart cites states: “According to M r. Zwygart, his cardiologist
specifically told him that he could not work while on the intravenous antibiotics
and in the most recent perioperative period.” App. 48 (emphasis added). As
double hearsay— M r. Zwygart said that his cardiologist said— this passage is
inadmissible under Fed. R. Evid. 802 and therefore “not sufficient to defeat a
motion for summary judgment.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d
1303, 1314 (10th Cir. 2005) (per curiam).
-12-
M r. Zwygart’s failure to provide evidence establishing his vocational
training, the geographical area to which he had access, and the number and type
of jobs demanding similar training from which he would have been disqualified
from M ay to December 2003 dooms his claim. W e therefore affirm the district
court’s judgment without addressing other factors relevant to the “substantially
limited” analysis.
C.
M r. Zwygart also appeals from the district court’s holding that the County
did not deprive him of procedural due process when it fired him. A person
alleging that he “has been deprived of his right to procedural due process” must
prove two elements: that he possessed a constitutionally protected liberty or
property “interest such that the due process protections were applicable,” and that
he was not “afforded an appropriate level of process.” Farthing v. City of
Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994). The district court granted
summary judgment after finding that M r. Zwygart did not establish a triable issue
of material fact as to whether he possessed a constitutionally protected property
interest in continued employment as a County truck driver. W e agree with the
district court’s ultimate conclusion but not with its reasoning.
Property interests do not stem from the Constitution itself; rather, they
“‘are created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law.’” Id. (quoting Bd. of
-13-
Regents of State C olleges v. Roth, 408 U.S. 564, 577 (1972)). W hen a plaintiff
alleges that he has a property interest in state employment, we must decide
“whether, under state law, the employee has ‘a legitimate claim of entitlement’ in
continued employment, as opposed to a ‘unilateral expectation’ or ‘an abstract
need or desire’ for it.” Id. (quoting Roth, 408 U.S. at 577). W e therefore turn to
Kansas employment law to resolve M r. Zwygart’s claim.
In Kansas, employees are presumptively at-will “in the absence of an
express or implied contract.” Anglemyer v. Hamilton County Hosp., 58 F.3d 533,
537 (10th Cir. 1995). In the district court, M r. Zwygart argued that “he had an
implied-in-fact contract of continued employment with the County, based upon
the policies approved by the Board of County Commissioners and set forth in the
[County’s] Employee Handbook.” A ppellee’s Supp. App. 95. The district court
discussed those factors w hen it analyzed M r. Zwygart’s implied-in-fact claim
under the totality of the circumstances test discussed in Anglemyer, 58 F.3d at
537, ultimately concluding that no implied contract existed. App. 108–10.
On appeal, M r. Zwygart argues that three factors— the County’s employee
handbook, his supervisor’s deposition testimony, and the parties’ “common
interpretation . . . [of] the County’s leave w ithout pay policy,” A ppellant’s Br.
22— could have led a reasonable jury to find that he had an implied-in-fact
contract for continued County employment. This argument, however, misses the
point. W hile these factors may be relevant to deciding whether an implied
-14-
employment contract exists, they are irrelevant here because M r. Zwygart signed
an express contract of employment. On July 30, 2002, he was reinstated only
after explicitly agreeing that his continued employment was contingent on these
conditions: “1. All use of sick leave will require a doctor slip. 2. For no reason
will leave without pay be granted. 3. Any violation of these conditions w ill
result in immediate termination.” App. 46.
It has long been Kansas law that “the existence of an express agreement
precludes the idea of the existence of an implied one.” Ericson v. Charles, 194 P.
652, 653 (K an. 1921); see also Brown v. Wichita State Univ., 540 P.2d 66, 75
(Kan. 1975) (“The existence of a valid express contract for services . . . precludes
the implication of a contract covering the same subject matter.” (internal
quotation marks omitted)), overruled on other grounds by Brown v. Wichita State
Univ., 547 P.2d 1015 (Kan. 1976). M r. Zwygart’s express contract thus precludes
a finding that an implied contract existed and eliminates the need to conduct an
implied-contract analysis. The express contract also is subject to the Kansas
Supreme Court’s command that “[i]f the terms of the contract are clear, the intent
of the parties is to be determined from the language of the contract without
applying rules of construction.” Anderson v. Dillard’s, Inc., 153 P.3d 550, 2007
W L 776866, at *4 (Kan. 2007). The terms of M r. Zwygart’s contract with the
County are unequivocal. They therefore govern our inquiry into w hether Zwygart
had “‘a legitimate claim of entitlement’ in continued employment, as opposed to a
-15-
‘unilateral expectation’ or ‘an abstract need or desire’ for it.” Farthing, 39 F.3d
at 1135 (quoting Roth, 408 U.S. at 577).
By signing the contract, M r. Zwygart expressly agreed that his “immediate
termination” would result from taking leave without pay. This plain language
leads but to one conclusion: M r. Zywgart did not have a legitimate claim to
continued employment if he breached the contract’s conditions. To hold
otherwise would be to flout the parties’ clearly expressed intentions in dereliction
of our duty to “give effect to” what the parties have “expressed within the four
corners of the instrument.” Blair Constr., Inc. v. M cBeth, 44 P.3d 1244, 1252–53
(Kan. 2002).
W hen this topic arose during oral argument, M r. Zwygart’s counsel asserted
that the County waived any rights it may have had under the contract by not firing
Zwygart on September 16, 2003— the day he exhausted his approved leave, and
thirteen days after his second open-heart surgery. W e cannot agree. Under
Kansas law, waiver is “the intentional relinquishment of a known right. The
intent to waive known rights is essential.” Prather v. Colo. Oil & Gas Corp., 542
P.2d 297, 303 (Kan. 1975) (internal citations omitted). “W aiver must be
manifested in some unequivocal manner by some distinct act or by inaction
inconsistent with an intention to claim forfeiture of a right. M ere silence of a
party is not waiver unless such silence is under circumstances requiring the party
to speak.” Patrons M ut. Ins. Ass’n v. Union Gas Sys., Inc., 830 P.2d 35, 39 (Kan.
-16-
1992). M r. Zwygart does not point to any record evidence indicating the County
intended to waive its right to fire him for taking unpaid leave. Nor could he: the
County in fact exercised its contractual right and fired him for his unpaid
absences.
That M r. Zwygart’s termination letter arrived six weeks after he exhausted
his leave, instead of two weeks after his open heart surgery, does not change our
view. Allowing a grace period is not equivalent to waiver. Employers should not
be penalized for failing to spy the clock and axe their employees nanoseconds
after they are contractually able to do so. W e need not decide in this case what
period of elapsed time w ithout a termination is sufficient to show waiver;
whatever it may be, we think the County was well within it by waiting six weeks
before firing a man still recuperating after his second open-heart surgery in two
years.
C ON CLU SIO N
W e A FFIR M the district court’s judgment dismissing M r. Zywgart’s AD A
and due process claims.
-17-