Proctor v. United Parcel Service

FILED
United States Court of Appeals
Tenth Circuit

PU BL ISH
September 18, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

TENTH CIRCUIT

JOHN W . PROCTOR,

Plaintiff - Appellant,

v. No. 06-3115

UN ITED PAR CEL SERVICE,

Defendant - Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D . C t. No. 04-CV-2388-RDR)

Alan V. Johnson (Stephen D. Lanterman, with him on the briefs), Sloan,
Eisenbarth, Glassman, M cEntire & Jarboe, L.L.C., Topeka, Kansas, appearing for
Appellant.

Daniel K. O’Toole, Armstrong Teasdale LLP, St. Louis, M issouri, appearing for
Appellee.

Before TA CH A, Chief Circuit Judge, TYM KOVICH, and HO LM ES, Circuit
Judges.

TA CH A, Chief Circuit Judge.

Plaintiff-Appellant John Proctor appeals the District Court’s entry of

summary judgment in favor of Defendant-Appellee United Parcel Service (UPS)
on his claims that UPS terminated him in retaliation for filing administrative

charges of disability discrimination in violation of the American with Disabilities

Act (ADA), 42 U.S.C. § 12203(a), and for filing workers’ compensation claims,

in violation of Kansas law. W e have jurisdiction under 28 U.S.C. § 1291 and

AFFIRM .

I. BACKGROUND

M r. Proctor was employed by UPS as a package car driver, a position that

requires an employee to lift, lower, leverage, and manipulate packages weighing

up to seventy pounds and to w ork extended hours when necessary. In February

1998, he underwent surgery on his w rist for a job-related injury and eventually

returned to work. In October 1999, he sustained a job-related injury to his back,

after which he was examined by Dr. Fevurly, UPS’s doctor, who released him to

return to work with no restrictions on November 8, 1999. One week later, he

suffered another work-related injury to his back. M r. Proctor pursued w orkers’

compensation claims based on his injuries, filing the latest of these claims in

November 1999.

The following month, in December 1999, M r. Proctor returned to U PS for a

brief period after Dr. Fevurly released him to return to work with a lifting

restriction of thirty pounds. His last day working at U PS was December 24, 1999.

From January 2000 to July 2000, M r. Proctor w as examined by Dr. Fevurly

several times. In July 2000, Dr. Fevurly concluded that he had reached

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“maximum medical improvement” and imposed a permanent fifty-pound lifting

restriction.

According to M r. Proctor, he was subject to medical restrictions that

prevented him from performing his job duties until January 2002. During this

time, M r. Proctor continued to be treated by his own physicians in addition to

seeing Dr. Fevurly. His back doctor, Dr. Prostic, released him to return to w ork

with no restrictions on February 1, 2002, and his wrist doctor, Dr. Ketchum,

issued a full release on April 3, 2002. W hen UPS did not allow M r. Proctor to

return to work despite his doctors’ releases, he filed a grievance against UPS for

violating the collective bargaining agreement (CBA) between UPS and M r.

Proctor’s union, the International Brotherhood of Teamsters, Local Union No. 696

(Union). Under the CBA, after an employee presents UPS w ith a doctor’s return-

to-work slip, the company doctor must examine the employee within three

working days. After M r. Proctor filed the grievance, the company doctor, Dr.

Fevurly, examined M r. Proctor and did not release him to return to work,

concluding that his work status was “to be determined.”

Under the CBA, when UPS’s doctor (i.e., Dr. Fevurly) and an employee’s

doctor disagree, UPS and the Union must agree on a third doctor whose decision

is “final and binding” on the employer, the Union, and the employee. Pursuant to

this provision of the CBA, on April 30, 2002, Dr. Brown, the doctor selected by

UPS and the Union, examined M r. Proctor and imposed a lifting restriction of

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forty pounds. In addition, in his medical evaluation, Dr. Brown specifically

stated: “I do not recommend that he return to package car driving at United Parcel

Service.” Following Dr. Brow n’s evaluation, UPS continued to deny M r.

Proctor’s requests to return to work.

A few months later, in July 2002, M r. Proctor requested an accommodation

under the ADA. In August 2002, UPS asked Dr. Fevurly to clarify his opinion

regarding M r. Proctor’s ability to perform the essential functions of a package car

driver. In response, Dr. Fevurly stated that M r. Proctor is not qualified to

perform the essential functions of his job, including the frequent lifting of seventy

pounds as specified in the written description of the job’s essential functions. In

M arch 2003, UPS notified M r. Proctor by letter of its decision to deny his request

for an accommodation, stating: “[B]ased upon the medical information that we

have received, we are unable to conclude that you are eligible for a reasonable

accom modation pursuant to the Americans w ith D isabilities Act.” The letter also

directed M r. Proctor to call the district workforce planning manager with any

questions “concerning [his] entitlement to benefits or [his] employment status at

this time.”

A few days later, on M arch 18, M r. Proctor w as examined by Dr. Poppa, a

doctor retained by UPS’s insurance carrier to provide an independent medical

evaluation in connection with M r. Proctor’s workers’ compensation case. In his

evaluation, Dr. Poppa noted that M r. Proctor had reached maximum medical

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improvement with respect to all work-related injuries and was therefore able to

return to work with restrictions, including “occasional lifting from floor to

knuckle of 70 pounds; occasional lifting of knuckle to shoulder height at 55

pounds; occasional lifting from shoulder to overhead of 45 pounds; [and]

occasional carrying 70 pounds at 50 feet.”

That same month, in M arch 2003, M r. Proctor filed an administrative

charge w ith the O ffice of Federal Contract Compliance Program (OFCCP),

alleging disability discrimination for UPS’s failure to accommodate him and

return him to work. The following M ay, he filed a similar charge with the Equal

Employment Opportunity Commission (EEOC), and in September 2003, he filed a

charge with the Kansas Human Rights Commission (K HRC).

In June 2003, an administrative law judge awarded M r. Proctor benefits on

his workers’ compensation claims, which UPS appealed to the Appeals Board for

the Kansas Division of W orkers Compensation. In July, M r. Proctor attended the

last local hearing regarding his grievance against U PS for not returning him to

work. During the hearing, M r. Proctor’s union representative telephoned M onica

Sloan, a district occupational health manager for UPS, to check on the status of

settlement negotiations concerning M r. Proctor’s workers’ compensation claims

and to ask whether U PS was going to permit M r. Proctor to return to work.

According to M r. Proctor, M s. Sloan responded: “[W ]e’re going to pay him a

work comp settlement and as far as I’m concerned he can go eat shit and die.”

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 By December 2003, all three administrative agencies (the OFCCP, EEOC,

and KHRC) had issued findings of no probable cause on M r. Proctor’s charges of

disability discrimination, as well as right-to-sue letters. M r. Proctor did not,

however, file suit based on these letters. In addition, on December 31, 2003, the

Appeals Board for the Kansas D ivision of W orkers C ompensation issued its

decision, resolving UPS’s appeal of M r. Proctor’s benefits award.

On January 14, 2004, M s. Sloan notified M r. Proctor’s union representative

by letter that UPS had closed all M r. Proctor’s workers’ compensation claims and

that M r. Proctor would be separated from employment with UPS as of January 14,

2004. This letter is the only documentation of M r. Proctor’s termination in the

record. According to M s. Sloan’s testimony, the termination letter resulted from

UPS’s policy and practice of terminating an employee who has not returned to

work once the employee’s workers’ compensation claims are resolved.

The following M ay, M r. Proctor filed a questionnaire with the EEOC,

which the agency treated as a second charge of discrimination. On M ay 20, 2004,

the EEOC issued a right-to-sue letter, and on August 20, 2004, M r. Proctor filed

suit against UPS in federal district court, asserting claims of discrimination and

retaliatory discharge in violation of federal and state law. Although he alleged

that UPS violated federal and state law in failing to grant his request for a

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reasonable accommodation for his disability, 1 the only claims on appeal are those

involving his termination. He asserts that UPS violated the ADA by terminating

him in retaliation for filing administrative charges of disability discrimination and

that UPS violated K ansas law by terminating him in retaliation for filing workers’

compensation claims. The District Court entered summary judgment in favor of

UPS on both claims, finding that M r. Proctor had failed to raise a genuine issue of

material fact with respect to the merits of either claim. The court also indicated

that M r. Proctor’s ADA claim could be dismissed as untimely because he failed to

file a timely administrative charge challenging UPS’s unlawful retaliation. 2 For

1
Specifically, M r. Proctor alleged that UPS violated both the ADA and the
Kansas A ct Against D iscrimination, Kan. Stat. Ann. § 44-1001 et seq., when it
denied his request for a reasonable accommodation for his disability. The District
Court entered summary judgment in favor of U PS on both claims.
2
UPS also argues that M r. Proctor’s claims are “preempted” by § 301 of the
Labor and M anagement Relations Act, 29 U.S.C. § 185, because they involve
interpretation of the CBA. But M r. Proctor’s ADA claim is clearly not preempted
by § 301 because one federal statute cannot preempt another and UPS does not
argue that § 301 repeals provisions of the ADA by implication. See J.E.M . AG
Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 141–42 (2001)
(discussing standard for implied repeal of one federal statute by another). M r.
Proctor is therefore entitled to assert his federal statutory right under the ADA,
provided the claim is actually based on the ADA. See Wright v. Universal
M aritime Serv. Corp., 525 U.S. 70, 79 (1998). M r. Proctor does not challenge
UPS’s interpretation of CBA procedures for determining when an employee may
not return to work; instead, he argues that UPS’s reliance on the CBA is a pretext
for retaliation. His cause of action therefore arises under the ADA, not the CBA.
M oreover, because we need not interpret the CBA, M r. Proctor’s state law claim
is not preempted. See Garley v. Sandia Corp., 236 F.3d 1200, 1209 (10th Cir.
2001) (noting that § 301 preempts state law claims when the court must interpret
the C BA).

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the reasons specified below , we affirm the D istrict Court’s entry of summary

judgment in U PS’s favor on both claims.

II. D ISC USSIO N

W e review the grant of a summary judgment motion de novo, applying the

same standards as the district court. Stover v. M artinez, 382 F.3d 1064, 1070

(10th Cir. 2004). In reviewing the record, we view all evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving

party. Id. W e will affirm a district court’s grant of summary judgment unless the

evidence in the record demonstrates a genuine issue of material fact. Id.; see also

Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006) (“An

issue of fact is genuine if the evidence allows a reasonable jury to resolve the

issue either way and is material when it is essential to the proper disposition of

the claim.” (quotations omitted)). W e may affirm the district court’s decision

“for any reason supported by the record.” Stover, 382 F.3d at 1070 (quotation

omitted).

A. Timeliness of R etaliation Claim under the ADA

For M r. Proctor’s retaliation claim under the ADA to be timely, he must

have filed an administrative charge within 300 days of the challenged

employment action and have filed suit in federal court within ninety days of

receiving the agency’s right-to-sue letter. See 42 U.S.C. § 12117(a)

(incorporating Title VII’s enforcement provisions, including administrative filing

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requirements under 42 U.S.C. § 2000e-5(e)(1), (f)(1)); 3 see also Haynes, 456 F.3d

at 1222 (noting a plaintiff must file an administrative charge within 300 days of

discriminatory action before filing a civil suit under the ADA). In general, “a

cause of action accrues ‘on the date the employee is notified of an adverse

employment decision by the employer.’” Haynes, 456 F.3d at 1222 (quoting

Davidson v. Am. Online, Inc., 337 F.3d 1179, 1187 (10th Cir. 2003)). An

employee receives notice of an “adverse employment decision when a particular

event or decision is announced by the employer.” Hulsey v. Kmart, Inc., 43 F.3d

555, 557 (10th Cir. 1994).

The District Court concluded that UPS notified M r. Proctor of its decision

not to return him to work by M arch 2003. By this time, M r. Proctor had notice of

Dr. Brown’s final and binding decision recommending he not return to w ork as a

package car driver and of UPS’s decision to deny his request for an

accommodation. Although M r. Proctor filed administrative charges in M arch

2003 alleging disability discrimination based on UPS’s failure to accommodate

him, he did not file a civil suit on this basis after receiving right-to-sue letters.

M oreover, because the District Court found that M r. Proctor had notice by M arch

2003 that he would not be returned to work, it found the administrative charge

3
M r. Proctor had 300 days, rather than 180 days, under the statute because
Kansas is a “deferral state,” that is, a state with an agency empowered to
investigate employment discrimination, Kan. Stat. A nn. §§ 44-1003, -1004. See
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1183 n.1 (10th Cir. 2003).

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filed in M ay 2004 to be untimely and concluded that M r. Proctor’s civil suit based

on this charge may be dismissed.

To determine whether M r. Proctor’s ADA claim should be dismissed as

untimely, we must “identify precisely the ‘unlawful employment practice’ of

which he complains.” Delaware State College v. Ricks, 449 U.S. 250, 257

(1980). Although M r. Proctor purports to challenge his termination, announced in

the January 14, 2004 letter, UPS argues that he had previous notice that he would

not be returned to work based on Dr. Brown’s final and binding decision under

the CBA and the company’s determination that he was not entitled to an

accommodation. Citing the Supreme Court’s decision in Ricks, UPS characterizes

M r. Proctor’s termination in 2004 as “a delayed, but inevitable, consequence” of

these earlier decisions. Id. at 257–58. In Ricks, the Supreme Court held that the

limitations period for filing an administrative complaint began to run when a

professor was denied tenure, rather than when his one-year terminal contract

ended, because the “eventual loss of a teaching position” was a “delayed, but

inevitable, consequence of the denial of tenure.” Id.

Notably, in Ricks, as well as in the Supreme Court’s most recent decision

on this issue, Ledbetter v. Goodyear Tire & Rubber Co., – U.S. – , 127 S. Ct.

2162 (2007), the plaintiff did not assert that the employer acted with unlawful

intent during the charging period (i.e., within the 300 days prior to the filing of an

administrative charge); rather, the plaintiff argued that the challenged action gave

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effect to discriminatory acts that occurred outside the charging period. See id. at

2167 (rejecting the argument that “it is sufficient that discriminatory acts that

occurred prior to the charging period had continuing effects during that period”);

Ricks, 449 U.S. at 257–58 (holding that plaintiff could not rely on a

discriminatory act occurring outside the charging period to file a complaint based

on a consequence of the time-barred act). Specifically, in Ledbetter, the plaintiff

argued that “an employment practice committed with no improper purpose and no

discriminatory intent is rendered unlawful nonetheless because it gives some

effect to an intentional discriminatory act that occurred outside the charging

period.” 127 S. Ct. at 2172. The Court rejected this argument and held that the

plaintiff’s claim was untimely. Id. But unlike the plaintiffs in Ledbetter and

Ricks, M r. Proctor claims that UPS acted with unlawful intent during the charging

period (i.e., within the 300 days prior to the filing of the administrative complaint

upon which his lawsuit is based). He does not argue that his termination was a

delayed effect of alleged acts of discrimination occurring outside the charging

period.

In addition, unlike the Court in Ricks, we cannot conclude that UPS

notified M r. Proctor of his eventual termination prior to the charging period. Cf.

Ricks, 449 U.S. at 258 (noting that the plaintiff had received “explicit notice that

his employment would end” after a one-year period). Even if we assume that M r.

Proctor’s termination in January 2004 was an inevitable consequence of earlier

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employment decisions, the record does not support the conclusion that UPS

notified M r. Proctor of this inevitability. The record contains evidence that he

was notified of D r. Brown’s decision recommending he not return to w ork as a

package car driver and of UPS’s decision to deny his request for an

accommodation. The record does not, however, contain evidence that UPS

notified M r. Proctor that these decisions would inevitably lead to his termination.

Indeed, in the M arch 2003 letter denying M r. Proctor’s request for an

accommodation, UPS did not notify him that the denial w ould result in his

discharge; instead, UPS instructed him to call the district workforce planning

manager w ith any questions about his employment status. Cf. id. at 258 (holding

that the limitations period for filing an administrative charge began to run when

the alleged discriminatory act occurred “and [was] communicated” to the

employee (emphasis added)).

In short, the argument that M r. Proctor’s discharge inevitably followed

from previous employment decisions is UPS’s argument, not M r. Proctor’s, and is

therefore properly resolved on the merits. Because M r. Proctor asserts that UPS

acted with retaliatory intent during the charging period and the record does not

indicate that he received notice of his eventual discharge prior to this period, w e

conclude that M r. Proctor’s ADA claim is timely.

B. R etaliation C laim under the ADA

W e next consider M r. Proctor’s claim that UPS violated the ADA, 42

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U.S.C. § 12203(a), by discharging him in retaliation for filing administrative

charges of disability discrimination. W hen, as in the case before us, the plaintiff

does not offer direct evidence of retaliation, we analyze a retaliation claim under

the burden-shifting framew ork delineated in M cDonnell Douglas Corp. v. Green2

411 U.S. 792, 802–04 (1973). See Anderson v. Coors Brewing Co., 181 F.3d

1171, 1178 (10th Cir. 1999). Following this framew ork, if M r. Proctor

establishes a prima facie case of retaliation, the burden shifts to UPS to assert a

legitimate, nondiscriminatory reason for the adverse action. Piercy v. M aketa,

480 F.3d 1192, 1198 (10th Cir. 2007). If UPS provides a legitimate,

nondiscriminatory reason for its decision, the burden shifts back to M r. Proctor to

show that UPS’s proffered reason is a “pretext masking discriminatory animus.”

Id.

In order to establish a prima facie case of retaliation, M r. Proctor must

show: “(1) that he engaged in protected opposition to discrimination, (2) that a

reasonable employee would have found the challenged action materially adverse,

and (3) that a causal connection existed between the protected activity and the

materially adverse action.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452

F.3d 1193, 1202 (10th Cir. 2006) (citing Burlington N. & Santa Fe Ry. Co. v.

White, – U.S. –, 126 S. Ct. 2405, 2414–15 (2006)). 4 M r. Proctor clearly engaged

4
After the Supreme Court’s recent decision in Burlington N. & Santa Fe Ry.
Co. v. White, – U.S. – , 126 S. Ct. 2405 (2006), we use a “reasonable employee”
(continued...)

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in protected activity when he filed administrative charges with the OFCCP,

EEOC, and the Kansas Human Rights Commission alleging disability

discrimination based on UPS’s failure to accommodate him and return him to

work. See Stover, 382 F.3d at 1071 (“There is no dispute that [the plaintiff’s]

EEO complaints are protected activity.”); Anderson, 181 F.3d at 1178 (“By filing

an EEOC claim, Plaintiff engaged in protected activity.”). In addition, a

reasonable employee would certainly find UPS’s termination of M r. Proctor a

materially adverse action. See Argo, 452 F.3d at 1202. Hence, only the third

element concerning causation is at issue.

To establish that a causal connection exists between the filing of

administrative charges and his discharge, M r. Proctor may proffer “evidence of

circumstances that justify an inference of retaliatory motive, such as protected

conduct closely followed by adverse action.” Haynes, 456 F.3d at 1228

(quotation omitted). Proctor filed his last administrative charge on September 8,

2003, and received his termination letter over four months later on January 14,

4
(...continued)
standard to determine whether an employment action is adverse in retaliation
cases. Id. at 2415. In interpreting the scope of Title VII’s antiretaliation
provision, the Court held that “a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. (quotations omitted). Because the
ADA’s anti-retaliation provision, 42 U.S.C. § 12203(a), contains essentially the
same language as Title VII’s provision, 42 U.S.C. § 2000e-3(a), White applies in
the ADA context as well. See Haynes, 456 F.3d at 1228 (applying the same
elements of prima facie case to Title VII and ADA retaliation claims).

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2004. Four months is too large a time gap to establish a causal connection. See

Piercy, 480 F.3d at 1198 (noting that we have found a proximity of three months

insufficient to support “a presumption of causation”); Anderson, 181 F.3d at 1179

(“[W ]e have held that a three-month period, standing alone, is insufficient to

establish causation.” (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th

Cir. 1997)). In an attempt to establish causation by temporal proximity, M r.

Proctor argues that he engaged in protected activity until the last administrative

agency, the OFCCP, issued its finding of no probable cause and its right-to-sue

letter on December 19, 2003. According to M r. Proctor, because UPS and the

OFCCP were dealing with his complaint until December 2003, he engaged in

protected conduct until the agency issued its decision. Not surprisingly, the

Supreme Court has characterized this argument as “utterly implausible.” Clark

County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that the court of

appeals rejected “respondent’s utterly implausible suggestion that the EEOC’s

issuance of a right-to-sue letter— an action in which the employee takes no

part— is a protected activity of the employee”). M r. Proctor took no part in the

agency determination. He engaged in protected activity when he filed the

administrative charge on September 8, after which more than four months passed

before his discharge.

Because a four-month time period does not support an inference of

retaliatory motive, M r. Proctor must present additional evidence to establish the

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necessary causal connection. See Piercy, 480 F.3d at 1198–99 (“[T]he passage of

time does not necessarily bar a plaintiff’s retaliation claim if additional evidence

establishes the retaliatory motive.”); Haynes, 456 F.3d at 1228 (“Standing alone,

temporal proximity between the protected activity and the retaliatory conduct

must be very close in time. Otherwise, the plaintiff must offer additional

evidence to establish causation.” (quotation omitted)). The other evidence M r.

Proctor proffers in support of causation is evidence he claims demonstrates the

weakness of UPS’s proffered reason for his discharge, thereby creating a genuine

issue of material fact as to whether U PS’s reason is a pretext for retaliation.

Although this kind of evidence is typically considered during the third phase of

the M cDonnell Douglas inquiry, M r. Proctor correctly notes that we have

considered evidence of pretext in the prima facie stage of a retaliation claim. See

Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003)

(considering evidence of pretext in analyzing the causation element of a prima

facie case of retaliation under Title VII).

UPS proffers a reason for M r. Proctor’s discharge based on the application

of neutral employment policies. The company claims that M r. Proctor was

terminated because Dr. Brown issued a final and binding decision under the CBA

that he was unable to perform the essential functions of his job and the company

was under no legal duty to accommodate him with a different position; based on

these determinations, UPS did not return M r. Proctor to work, leading to his

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termination in January 2004 in accordance with its policy of terminating

employees who have not returned to work when their workers’ compensation

claims are resolved. M r. Proctor concedes that UPS’s proffered reason is a

facially legitimate, nonretaliatory reason, but contends that two pieces of

evidence suggest that the reason is “unworthy of belief” and therefore a pretext

for retaliation. See Stover, 382 F.3d at 1073. To establish pretext, M r. Proctor

must present “evidence of 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 unw orthy of

credence and hence infer that the employer did not act for the asserted

non-discriminatory reasons.” Argo, 452 F.3d at 1203 (quotations omitted).

As evidence of pretext, M r. Proctor asserts that the fact that UPS allowed

him to return to work in 1999 with a lifting restriction of thirty pounds suggests

that UPS later refused to return him to work with a higher lifting restriction in

retaliation for filing administrative charges. See Simms v. Oklahoma, 165 F.3d

1321, 1328 (10th Cir. 1999) (noting that plaintiff may use evidence concerning

prior treatment to demonstrate pretext). But his 1999 return to w ork w as a

temporary arrangement. Dr. Brown (the doctor agreed upon by UPS and the

Union under the CBA) did not evaluate M r. Proctor and recommend that he not

return to work until April 2002. W hen UPS permitted M r. Proctor to return to

work in December 1999, it was still waiting for him to reach maximum medical

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improvement, at which time U PS could determine w hether to return him to w ork

on a permanent basis. Hence, M r. Proctor’s return to w ork w ith a temporary

accommodation in 1999 cannot support an inference that UPS acted with

retaliatory intent in discharging him in 2004. 5

In addition, we note that, to establish that UPS terminated him with

retaliatory intent, M r. Proctor may not rely on prior acts of alleged discrimination

occurring outside the charging period, as these constitute discrete and time-barred

actions. See Nat’l R.R. Passenger Corp. v. M organ, 536 U.S. 101, 113 (2002). In

arguing that UPS treated him differently by refusing to allow him to return to

work with higher lifting restrictions in January 2004, M r. Proctor is actually

challenging UPS’s earlier denial of his request for an accommodation. But M r.

Proctor did not file suit based on administrative charges alleging UPS

discriminated against him in failing to accommodate his disability. Because

UPS’s denial of his request for an accommodation constitutes a discrete act of

alleged discrimination, it is not actionable unless he files suit based on this act.

See id. He cannot impute the alleged intent behind a time-barred act to UPS’s

decision to discharge him based on a neutral policy of relying on the CBA’s third-

5
In addition, UPS refused to return M r. Proctor to work before he filed
administrative charges. The fact that UPS refused to return him to work both
before and after he filed charges also undermines any inference of pretext. See
M etzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1174 (10th Cir. 2006)
(noting that record did not support plaintiff’s claim that employer treated her
differently after she engaged in protected activity).

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doctor procedure and of discharging employees not at work at the close of

workers’ compensation claims. See Haynes, 456 F.3d at 1227 (“[An employee]

cannot use [an employer’s] alleged intent in performing time-barred discrete

actions . . . to attach discriminatory intent or pretext to [a] termination decision

based on a neutral policy.”).

As further evidence of pretext, M r. Proctor argues that Dr. Poppa’s medical

evaluation in April 2003 calls UPS’s asserted reason for his termination into

question. He contends that a reasonable factfinder could conclude that UPS’s

asserted reason (i.e., reliance on Dr. Brown’s medical evaluation) is “unworthy

of belief” based on Dr. Poppa’s later and (in his view) more favorable medical

evaluation. As UPS points out, however, Dr. Poppa w as not evaluating M r.

Proctor’s ability to perform the essential functions of his job. Instead, he was

examining M r. Proctor to assess his workers’ compensation disability rating. In

addition, as the District Court noted, Dr. Poppa did not state that M r. Proctor can

perform the job’s essential functions; indeed, the doctor’s findings suggest that

M r. Proctor may not be able to perform these functions (e.g., lifting seventy

pounds above shoulder level).

M oreover, in the context of a retaliation claim, the crucial question is not

whether M r. Proctor can in fact perform the essential functions of his job. The

relevant question is whether M r. Proctor can show that UPS’s “motive for taking

adverse action was its desire to retaliate for the protected activity.” Wells, 325

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F.3d at 1218. In other w ords, we must determine w hether UPS treated M r.

Proctor differently because he filed administrative charges of disability

discrimination, id. at 1219, not whether UPS correctly concluded that he could

not perform the essential functions of his job. As we have cautioned, “the

relevant inquiry is not whether [the employer’s] proffered reasons w ere wise, fair

or correct, but whether [the employer] honestly believed those reasons and acted

in good faith upon those beliefs.” Stover, 382 F.3d at 1076 (quotation omitted);

see also Piercy, 480 F.3d at 1200 (“Even a mistaken belief can be a legitimate,

non-pretextual reason for an employment decision.”). M r. Proctor has failed to

offer any evidence that suggests UPS based his discharge on a retaliatory motive,

rather than on its neutral employment policies. Notably, he does not challenge

UPS’s policy of terminating an employee based on a final and binding doctor’s

decision under the C BA once all workers’ compensation claims are resolved. He

does not argue, for example, that UPS does not uniformly apply this policy. See

Haynes, 456 F.3d at 1228–29 (noting that employee who failed to establish

causation element of retaliation claim did not allege that her employer applied

employment policy in discriminatory manner). Nor does he argue that UPS used

the policy itself to discriminate against a class of employees. See Piercy, 480

F.3d at 1204 (noting that plaintiff need not prove discriminatory motive when

employment policy is discriminatory on its face); see also Ledbetter, 127 S. Ct. at

2173–74 (noting that an employer who adopts a facially discriminatory pay

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structure engages in unlawful discrimination each time it uses the pay structure).

The evidence M r. Proctor proffers therefore fails to establish the causation

element of a prima facie case. See M cGowan v. City of Eufala, 472 F.3d 736, 747

(10th Cir. 2006) (“If the reason for the claimed adverse action does not flow from

a discriminatory motive, it lacks the requisite causal connection to the adverse

action.”).

Furthermore, even if we were to assume that M r. Proctor has established a

prima facie case, the evidence in its totality does not raise a genuine issue of

material fact regarding the third step of the M cDonnell Douglas framew ork, that

is, whether U PS’s proffered reason is a pretext for retaliation. See Beaird v.

Seagate Tech., Inc., 145 F.3d 1159, 1174 (10th Cir. 1998) (noting that we

consider the totality of the plaintiff’s circumstantial evidence of pretext); see also

Stover, 382 F.3d at 1073–74 (assuming plaintiff established a prima facie case but

holding she failed to demonstrate a genuine issue of material fact regarding

pretext); Annett v. Univ. of Kan., 371 F.3d 1233, 1242 (10th Cir. 2004) (affirming

district court’s grant of summary judgment in employer’s favor because plaintiff

failed to raise genuine issue of material fact regarding pretext). As the above

discussion of M r. Proctor’s evidence regarding pretext demonstrates, he has not

created a disputed issue as to whether UPS’s proffered reason is “unworthy of

belief.” W e therefore affirm the District Court’s entry of summary judgment in

U PS’s favor on M r. Proctor’s claim of retaliation under the ADA.

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C. Retaliation Claim Under Kansas Law

Kansas courts also apply the M cDonnell Douglas burden-shifting

framew ork to claims of employment discrimination, including claims of

retaliatory discharge for filing a workers’ compensation claim. Gonzalez-Centeno

v. N. Cent. Kan. Reg’l Juvenile D et. Facility, 101 P.3d 1170, 1177 (Kan. 2004);

Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass’n of Dighton, 35 P.3d

892, 898 (Kan. 2001). As discussed above, under this framew ork, M r. Proctor

must establish a prima facie case of retaliation. Gonzalez-Centeno, 101 P.3d at

1177. If he meets this burden, UPS must come forward with a legitimate,

nonretaliatory reason for the discharge. Id. M r. Proctor then has the burden of

show ing “by a preponderance of the evidence” that this legitimate reason is a

pretext for retaliation in violation of state law. Id.; see also M agnum Foods, Inc.

v. Cont’l Cas. Co., 36 F.3d 1491, 1503 (10th Cir. 1994) (noting that we apply

state law when examining evidence in terms of underlying burden of proof).

To establish a prima facie case for retaliation under Kansas law, a plaintiff

must establish four elements:

(1) The plaintiff filed a claim for workers compensation benefits or
sustained an injury for which he or she might assert a future claim
for such benefits; (2) the employer had knowledge of the plaintiff’s
workers compensation claim injury; (3) the employer terminated the
plaintiff’s employment; and (4) a causal connection existed between
the protected activity or injury and the termination.

Gonzalez-Centeno, 101 P.3d at 1177. Here, the parties agree that the first three

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elements have been established. Only the fourth element regarding causation is at

issue.

To determine whether a causal connection exists, Kansas courts typically

begin by asking whether the employee’s protected activity and the termination are

closely connected in time. Rebarchek, 35 P.3d at 899; see also White v. Tomasic,

69 P.3d 208, 212 (Kan. Ct. App. 2003) (“Close temporal proximity between a

workplace injury or the filing of a w orkers compensation claim and the adverse

employment action may be highly persuasive evidence of retaliation.” (quotation

omitted)). Although M r. Proctor filed his w orkers’ compensation claim in

November 1999, he argues that he engaged in protected activity as late as

December 2003, the month before he received notice of his discharge. According

to M r. Proctor, his participation in settlement negotiations and the appeal of his

workers’ compensation claim, which was finalized in December 2003, constitute

protected activity. Kansas courts have not squarely addressed whether an

employee’s ongoing participation in litigation constitutes protected activity,

instead noting only that the filing of a claim is protected activity. See Rebarchek,

35 P.3d at 899 (“Proximity in time between the claim and discharge is a typical

beginning point for proof of a causal connection.” (emphasis added)). W e will

therefore assume, without deciding, that M r. Proctor has established a prima facie

case of retaliation for participating in the appeal of his workers’ compensation

claim and proceed to determine whether he has presented evidence indicating that

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UPS’s proffered legitimate reason is a pretext for retaliation. See Stover, 382

F.3d at 1073 (assuming plaintiff established a prima facie case and deciding

whether employer w as entitled to summary judgment based on plaintiff’s

evidence of pretext).

As noted above, UPS has asserted a facially legitimate, nonretaliatory

reason for M r. Proctor’s termination, namely that, pursuant to the final and

binding doctor’s decision under the CBA, M r. Proctor was not returned to w ork

and was therefore discharged once his workers’ compensation claims were closed.

In response, M r. Proctor points to five pieces of evidence that he claims create a

genuine issue of material fact regarding pretext. In addition to the evidence

proffered in support of his retaliation claim under the ADA , M r. Proctor claims

three pieces of circumstantial evidence create a disputed issue concerning pretext:

(1) the temporal proximity between the resolution of his workers’ compensation

claim and his discharge; (2) a disparaging remark made by a UPS employee; and

(3) a reference to his workers’ compensation claim in his termination letter. W e

consider each piece of evidence below.

First, M r. Proctor asks us to consider the same evidence proffered in

support of his retaliation claim under the ADA, that is, that a reasonable

factfinder could infer retaliation based on his temporary return to work in 1999

and Dr. Poppa’s medical evaluation. But as we explained above, the fact that

UPS temporarily returned M r. Proctor to work with lifting restrictions in 1999 has

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no bearing on UPS’s motive in terminating him after Dr. Brown recommended he

not return to work on a permanent basis. Similarly, Dr. Poppa’s medical

evaluation is not probative of pretext; the existence of another medical opinion

obtained at the request of UPS’s insurer does not contradict or otherwise weaken

UPS’s assertion that it relied on Dr. Brown’s final and binding decision under the

CBA.

N ext, w e consider M r. Proctor’s evidence of temporal proximity. As

discussed above, we assume, but do not decide, that temporal proximity is present

in this case based on the fact that M r. Proctor received notice of his termination

in close proximity to the resolution of the appeal of his workers’ compensation

claim. Although we may consider evidence of temporal proximity— typically

used to establish a prima facie case— in analyzing pretext, see Gonzalez-Centeno,

101 P.3d at 1178, temporal proximity alone is insufficient to raise a genuine issue

of material fact concerning pretext, see Annett, 371 F.3d at 1240–41; Anderson,

181 F.3d at 1180 (assuming temporal proximity present for purposes of prima

facie case but concluding that proximity alone was insufficient to survive

summary judgment on issue of pretext). 6 W e must therefore determine whether

6
As this Court has previously held, temporal proximity is sufficient to
establish a prima facie case, but not to establish pretext, because the evidentiary
burden is different: “The burden of establishing a prima facie case [in the
M cDonnell Douglas framew ork] is not onerous. It is because of this relatively lax
burden that we allow temporal proximity between a protected activity and an
adverse action to establish a prima facie case; for the same reason, we have not
(continued...)

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temporal proximity combined with other evidence proffered by M r. Proctor

creates a reasonable inference that UPS’s asserted reason is unworthy of belief.

See Gonzales-Centeno, 101 P.3d at 1178 (noting that, to survive summary

judgment, the plaintiff must demonstrate a genuine issue of material fact as to

whether the employer’s asserted reason is “unworthy of belief”).

As further evidence that UPS’s asserted reason is unworthy of belief, M r.

Proctor notes the crass and disparaging remark made by M onica Sloan in July

2003 when his union representative asked her about the status of settlement

negotiations in his workers’ compensation case and whether UPS would allow M r.

Proctor to return to work. M r. Proctor claims he heard M s. Sloan tell his union

representative: “W e’re going to pay him a w ork comp settlement and as far as I’m

concerned he can go eat shit and die.” Although this alleged remark certainly

suggests that M s. Sloan was frustrated by M r. Proctor’s case, one isolated remark

made several months before he received notice of his termination does not create

a genuine issue of material fact concerning UPS’s motivation. M s. Sloan testified

that the January 2004 termination letter was a result of UPS’s policy of

6
(...continued)
imported this lessened standard to pretext analysis where the burden is more
demanding and requires a plaintiff to assume the normal burden of any plaintiff to
prove his or her case at trial.” Annett, 371 F.3d at 1241 (alteration in original)
(citations and quotations omitted). Kansas courts have also recognized the
different burdens required at these two stages. See Rebarchek, 35 P.3d at 901.
W e therefore conclude that Kansas courts would require a plaintiff to show more
than temporal proximity to establish a genuine issue of material fact concerning
pretext.

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terminating employees who are not back to w ork at the close of their workers’

compensation claims. Nothing in the record contradicts her understanding that

M r. Proctor’s termination was inevitable as a matter of UPS policy, that is, that

M r. Proctor would be discharged at the close of his workers’ compensation case

because Dr. Brown recommended he not return to work and UPS had determined

he was not eligible for an accommodation. This alleged statement does not,

therefore, support an inference of retaliatory motive.

Similarly, we are unconvinced by M r. Proctor’s argument that a reasonable

factfinder could infer retaliatory motive based on the reference to his workers’

compensation claim in the January 2004 letter notifying him of his discharge.

The letter contained the following language: “This is to inform you on January

14, 2004, UPS closed all w orker[s’] compensation claims on John Proctor. . . .

This employee will be separated from UPS as of January 14, 2004.” Rather than

arguing that the letter calls UPS’s facially legitimate reason into question, M r.

Proctor argues that UPS could not rely on the medical evaluations conducted in

2002 in accordance with the CBA to terminate him in January 2004. In essence,

he argues that UPS violated Kansas law by terminating him at the close of his

workers’ compensation case because it did not have “ample evidence” that he

would not be able to return to work. In support of this contention, he cites our

decision in Sanjuan v. IBP, Inc., 275 F.3d 1290 (10th Cir. 2002).

Our analysis of Kansas law in Sanjuan does not, however, support M r.

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Proctor’s argument. The Kansas case discussed in Sanjuan stands for the

proposition that an employee can prevail on a retaliation claim by showing the

employer acted with retaliatory animus before acquiring ample evidence that the

employee will not be able to return to work:

Although the public policy exception that created the tort of
retaliatory discharge for terminating an injured employee for filing a
workers compensation claim does not apply to an injured employee
who is unable to return to his or her former job after an injury, the
requirement that an injured employee be able to return to his or her
former position will not preclude an injured employee’s claim for
retaliatory discharge when the injured employee can show a
retaliatory motive on the part of the employer before the employer
had ample evidence that the injured employee would be unable to
perform his or her former job.

Gertsch v. Cent. Electropolishing Co., 26 P.3d 87, 90 (Kan. Ct. App. 2001)

(emphasis added), discussed in Sanjuan, 275 F.3d at 1295. In other words, if an

employer has ample evidence that an employee will not be able to return to w ork

on a permanent basis, an employee may not sustain an action based on retaliatory

discharge under Kansas law. Conversely, an employee may prevail on a

retaliatory discharge claim if the employer did not have ample evidence and the

employee “can show a retaliatory motive on the part of the employer.” Gertsch,

26 P.3d at 90.

Here, we need not determine w hether UPS had “ample evidence” of M r.

Proctor’s inability to return to work because M r. Proctor has failed to present

evidence that establishes a genuine issue of material fact regarding UPS’s motive.

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He has not presented any evidence that disputes UPS’s assertion that his

termination was based on Dr. Brown’s final and binding decision under the CBA

and UPS’s policy of terminating employees not at w ork at the close of their

workers’ compensation claims. That is, the critical question in the present case is

not whether M r. Proctor could perform the essential functions of his job in

January 2004, but whether U PS’s proffered reason is a pretext for retaliation. See

Sanjuan, 275 F.3d at 1295 (“In the final analysis, one asks, ‘W hat was [the

employer’s] motive for firing [the employee]?’”). The reference to his workers’

compensation claims in his termination letter does not suggest that UPS’s reliance

on Dr. Brown’s evaluation is a “cover-up or pretext for retaliatory discharge.”

Bracken v. Dixon Indus., Inc., 38 P.3d 679, 682 (Kan. 2002). Instead, it simply

indicates that the notice of termination coincides w ith the closure of his workers’

compensation claims.

In sum, even if we assume that M r. Proctor has established a prima facie

case based on temporal proximity, he has not presented evidence sufficient to

create a genuine issue of material fact regarding UPS’s motive for terminating

him. See Bracken, 38 P.3d at 684 (holding that plaintiff failed to establish

inference of retaliatory intent sufficient to survive summary judgment when

evidence did not suggest that employer used a general policy as a pretext for her

discharge). W e therefore affirm the District Court’s entry of summary judgment

in U PS’s favor on M r. Proctor’s claim of retaliatory discharge under Kansas law .

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 III. C ON CLU SIO N

For the foregoing reasons, we AFFIRM the District Court’s grant of

summary judgment in UPS’s favor on M r. Proctor’s claims of unlawful retaliation

under the ADA and Kansas law. In addition, we GRANT UPS’s m otion to file

portions of its appendix under seal.

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