513 F. App'x 733
10th Cir.2013Background
- Wehrley, a field claim adjuster for American Family Mutual Insurance, fell from a ladder in 2007 sustaining knee/back injuries.
- He returned to work with restrictions that allowed non-roof work; later, after a senior medical review, restrictions shifted back toward roof work.
- Sentry denied coverage for his planned surgery; Bourcy advised FMLA considerations and personal insurance options.
- In 2008 Wehrley faced pressure about performing roof claims and was terminated in August 2008 for alleged inability to perform roof inspections.
- He filed federal and state claims: ADA discrimination, Colorado public policy, and retaliation under FMLA, ADA, and state law; district court granted summary judgment for defendant.
- Wehrley sought panel rehearing; the court granted in part and issued an amended opinion, applying Midland Brake analysis to ADA reassignment question and affirming on all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ADA discrimination whether Wehrley was disabled | Wehrley was substantially impaired in major life activities | He was not substantially limited or disabled under pre-2009 ADA | No material dispute; no substantial impairment found; summary judgment upheld on discrimination |
| ADA retaliation whether protected activity (request for accommodation) caused firing | Discouraged by employer after seeking accommodations; prima facie met | Firing due to inability to perform essential roof inspections; no pretext shown | No pretext; affirmed summary judgment on retaliation claim |
| FMLA retaliation whether protected activity (notice of intent to take FMLA leave) caused firing | Notice of intent to take FMLA leave protected activity; temporal proximity supports causation | Firing based on inability to perform essential duties; after notice but not pretext | Protected activity established; however no pretext; affirmed on FMLA retaliation claim |
| Colorado public policy/state law retaliation for workers’ compensation claim | Firing linked to exercising workers’ compensation rights | Firing for inability to perform essential duties; no causal link shown | Summary judgment for defendant affirmed; no cognizable causation shown |
Key Cases Cited
- Midland Brake, Inc. v. Dir. of Motor Veh., 180 F.3d 1161 (10th Cir. 1999) (duty to consider reassignment; pretext analysis for ADA claims)
- Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003) (ADA impairment analysis framework)
- Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (Supreme Ct. 2002) (strictly interpreted major life activities before ADA Amendments Act)
- Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134 (10th Cir. 2011) (pre-ADA Amendments Act retroactivity; framework for disability analysis)
- Jones v. U.P.S., Inc., 502 F.3d 1176 (10th Cir. 2007) (protected activity includes requests for reasonable accommodation under ADA)
- Selenke v. Medical Imaging of Colo., 248 F.3d 1249 (10th Cir. 2001) (protected activity where good faith belief of violation suffices in retaliation claims)
- Metzler v. Fed. Hm. Loan Bank of Topeka, 464 F.3d 1164 (10th Cir. 2006) (causal connection via temporal proximity in retaliation cases)
- E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011) (pretext analysis framework in retaliation context)
- Johnson v. Weld Cnty., 594 F.3d 1202 (10th Cir. 2010) (sleeping/major life activities; ADA analysis framework)