Tesone v. Empire Marketing Strategies, 942 F.3d 979

Tesone was hired in 2012 as a retail merchandiser and told EMS she had chronic lower-back pain with a 15‑pound lifting restriction.
EMS repeatedly requested medical documentation; Tesone provided a letter months later from Dr. Manjarres recommending lifting restrictions but she had not treated with him before the letter.
EMS disciplined Tesone for an unapproved hotel stay and other performance concerns and terminated her on Feb. 27, 2017 for policy violations.
Tesone filed an EEOC charge checking only the "disability" box (not "retaliation") and received a right‑to‑sue letter.
The district court set deadlines: amend pleadings Jan. 22, 2018; disclose experts Feb. 5, 2018. Tesone moved in November 2018 to extend the expert deadline and to amend her complaint; the court denied both motions and granted summary judgment to EMS because Tesone had no medical expert to prove a substantial limitation.
The Tenth Circuit affirmed denial of the scheduling/pleading amendments but reversed summary judgment, holding the ADA does not categorically require expert testimony and remanding for a case‑specific determination (including admissibility of the doctor’s note).

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Motion to extend expert‑disclosure deadline under Fed. R. Civ. P. 16(b)(4)	Tesone sought more time to designate an expert (delay tied to settlement/mediation and counsel unfamiliarity)	Tesone missed deadlines and was not diligent; long unexplained delay	Affirmed — no good cause; denial was not an abuse of discretion
2) Motion to amend complaint (add perceived‑disability and retaliation claims)	New deposition evidence and mediation comments justified amendment	Delay, knowledge of facts earlier, and failure to exhaust EEOC for retaliation	Affirmed — no good cause under Rule 16(b)(4); retaliation claim futile for lack of EEOC exhaustion
3) Summary judgment: whether expert medical testimony is always required to establish an ADA disability	Expert testimony is not always required; Tesone’s evidence and doctor’s letter could suffice under ADA/ADAAA	Without expert proof, Tesone cannot show a substantial limitation as a matter of law (citing Felkins)	Reversed — court erred by adopting categorical rule; expert necessity is case‑specific; remanded for further proceedings
4) Use of unsworn doctor’s note at summary judgment	Doctor’s note is medical documentation supporting disability	Note is inadmissible hearsay and cannot defeat summary judgment	Open on remand — court must reassess admissibility and whether the substance can be presented in admissible form (district court to consider Capobianco/Argo principles)

Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230 (10th Cir. 2014) (Rule 16(b) "good cause" requires diligence to meet scheduling deadlines)
Felkins v. City of Lakewood, 774 F.3d 647 (10th Cir. 2014) (expert testimony required where condition is medically technical and beyond lay understanding)
Rimbert v. Eli Lilly & Co., 647 F.3d 1247 (10th Cir. 2011) (abuse of discretion standard for scheduling‑order modifications)
Birch v. Polaris Indus., Inc., 812 F.3d 1238 (10th Cir. 2015) (after scheduling‑order deadline, movant must show Rule 16(b) good cause before Rule 15 analysis)
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant's initial burden on summary judgment and how nonmovant must show genuine dispute)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for determining genuine issues of material fact at summary judgment)
Mancini v. City of Providence, 909 F.3d 32 (1st Cir. 2018) (expert testimony not required where impairments are understandable to lay jurors)
EEOC v. AutoZone, Inc., 630 F.3d 635 (7th Cir. 2010) (no blanket rule requiring medical testimony; expert evidence may be used but is not always necessary)
Capobianco v. City of New York, 422 F.3d 47 (2d Cir. 2005) (unsworn physician letters are generally hearsay but may be considered in certain procedural contexts if offered by the proponent)