462 F. App'x 814
10th Cir.2012Background
- Brown, a Mueller warehouse supervisor, disclosed cancer and sought medical leave in 2005; Mueller provided FMLA paperwork and approved unpaid leave.
- Brown took leave for surgery, then intermittent FMLA in 2006-2007 for treatment and absences.
- Mueller terminated Brown on February 8, 2007, citing poor performance and excessive absences after exhausting 12 weeks of FMLA leave.
- Valdez, as Brown’s estate representative, pursued ADA, NMHRA, FMLA, and breach of contract claims in district court, which granted Muellersummary judgment.
- Brown died before appeal; Valdez was substituted as plaintiff and appeals the district court’s decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ADA/NMHRA: failure to accommodate and wrongful termination | Valdez contends Brown was a qualified individual needing accommodation. | Mueller argues Brown cannot perform essential functions with or without accommodation; no reasonable accommodation was possible. | No error; Brown not qualified; no reasonable accommodation. |
| Interactive accommodation process | Mueller failed to engage in interactive process to identify accommodations. | Even if interaction was lacking, no actionable discrimination absent a possible accommodation. | Failure to engage in interactive process does not itself establish liability; no accommodation possible here. |
| FMLA interference | Mueller interfered with Brown’s right to take or be informed of FMLA leave. | Mueller provided or could be seen as providing the relevant FMLA leave; records show exhaustion of leave. | No interference; Brown exhausted twelve weeks of FMLA leave per official records. |
| FMLA retaliation | Termination after FMLA constitutes retaliation. | No protected activity at time of termination; claim fails as retaliation. | No cognizable retaliation claim; termination not tied to protected activity. |
Key Cases Cited
- Mason v. Avaya Comms., Inc., 357 F.3d 1114 (10th Cir. 2004) (test for disability discrimination under ADA requires qualification with or without reasonable accommodation)
- Davidson v. American Online, 337 F.3d 1179 (10th Cir. 2003) (two-step ADA 'qualified individual' analysis; essential functions then accommodations)
- Rascon v. US West Comm., Inc., 143 F.3d 1324 (10th Cir. 1998) (leave as a reasonable accommodation when duration is definite)
- Cisneros v. Wilson, 226 F.3d 1113 (10th Cir. 2000) (clarifies leave duration must be definite for reasonable accommodation)
- Campbell v. Gambro Healthcare, 478 F.3d 1282 (10th Cir. 2007) (distinguishes interference from retaliation in FMLA claims)
- Taylor v. Pepsi-Cola Co., 196 F.3d 1106 (10th Cir. 1999) (precedent on leave and accommodation in ADA context)
- Duvall v. Georgia-Pacific Consumer Prods., 607 F.3d 1255 (10th Cir. 2010) (requirement to identify a vacant position as potential accommodation)
- McBride v. BIC Consumer Prods., 583 F.3d 92 (2d Cir. 2009) (interactive process not a standalone basis for liability; must show possible accommodation)