Morgan v. Hilti, Inc., 96-5111

• Decision Date: 18 March 1997
• Docket Number: No. 96-5111,96-5111
• Citation: 108 F.3d 1319
• Parties: 133 Lab.Cas. P 33,516, 4 Wage & Hour Cas.2d (BNA) 1226, 6 A.D. Cases 892, 21 A.D.D. 125, 9 NDLR P 219, 97 CJ C.A.R. 414 Tanya MORGAN, Plaintiff-Appellant, v. HILTI, INC., a corporation in the state of New York, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1319

108 F.3d 1319

133 Lab.Cas. P 33,516, 4 Wage & Hour Cas.2d

(BNA) 1226,

6 A.D. Cases 892, 21 A.D.D. 125, 9

NDLR P 219,

97 CJ C.A.R. 414

Tanya MORGAN, Plaintiff-Appellant, v. HILTI, INC., a corporation in the state of New York Defendant-Appellee.

No. 96-5111.

United States Court of Appeals Tenth Circuit.

March 18, 1997.

Katherine Waller of Leblang & Clay, Tulsa, Oklahoma, for Plaintiff-Appellant.

J. Daniel Morgan of Gable Gotwals Mock Schwabe, Tulsa, Oklahoma, for Defendant-Appellee.

Before TACHA, EBEL, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Tanya Morgan filed this suit against defendant-appellee Hilti, Inc. alleging that Hilti discriminated against her in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, by terminating her employment for the allegedly pretextual reason of excessive absenteeism. She further claimed that the termination was in retaliation for filing a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC), in violation of 42 U.S.C. § 12203(a), and in retaliation for exercising her rights under the Family and Medical Leave Act (FMLA), in violation of 29 U.S.C. § 2615(a). ¹

The district court granted summary judgment in favor of Hilti. In doing so, it ruled that Morgan had made out a prima facie case of ADA discrimination, but had failed to carry the two-pronged burden of showing (1) that Hilti's proffered reasons for terminating her were false, and (2) that Hilti's real reasons were unlawful. This standard is contrary to our prior case law. On summary judgment, once the employer comes forward with a facially nondiscriminatory reason for an adverse employment decision, the plaintiff's burden is only to demonstrate a genuine dispute of material fact as to whether the proffered reasons were unworthy of belief. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). To avoid summary judgment, a plaintiff need not demonstrate that discriminatory reasons motivated the employer's decision. Id. at 451-52.

However, we "affirm the district court's decision to grant summary judgment if the record contains any basis to do so." Jones v. Unisys Corp., 54 F.3d 624, 628 (10th Cir.1995). After reviewing the record de novo, see David v. City & County of Denver, 101 F.3d 1344, 1355 (10th Cir.1996), and construing the factual record and all reasonable inferences therefrom in the light most favorable to Morgan, see id., we determine that Morgan did not raise any material issues of fact as to Hilti's motivation and thus affirm the judgment of the district court. ²

I. BACKGROUND

Morgan was employed by Hilti from July 2, 1984 through January 18, 1995, when she was discharged from her position as a fax/mail clerk. In November 1992, Morgan took a short-term disability leave for treatment of depression and anorexia nervosa. She returned from the leave on February 12, 1993, and informed her supervisor of her condition. Sometime later that year, she told a new supervisor of her condition and also mentioned her continuing participation in counseling and group therapy sessions. Morgan stopped attending the sessions in December of 1993, after hearing from a co-worker that the supervisor was documenting her absenteeism, with particular attention to the dates of her short-term disability leave and therapy sessions.

The attendance records for 1993 show that Morgan came late, left early, or was absent on at least thirty working days (exclusive of disability leave and scheduled vacation time). Morgan gave various reasons for the occurrences: her own illnesses, illnesses of her children, foot or ankle problems, dentist and doctor appointments, and "out prev. night." Appellant's App. at 30. She did not give attendance at therapy sessions as an excuse, id., and only one of the absence dates correlates with the therapy sessions documented in her treatment records. Hilti discussed attendance problems with Morgan on August 10 and, at her year-end review conducted on December 16, warned that her "tardiness is unacceptable," id. at 33, and that she "must improve attendance & tardiness," id. at 34.

Morgan continued the same pattern of frequent, unscheduled absences in 1994. In January and February she was absent for six days and left early on three. Hilti counseled her concerning the need for regular attendance on February 1. From March 29 through May 13, Morgan took another short-term disability leave (apparently an approved FMLA leave) to recover from a surgical procedure unrelated to depression or anorexia nervosa. On the day of her return, Hilti sent her a letter recounting her absences, advising that her attendance record would be "closely monitored on a daily basis," and warning that further absenteeism exceeding her ten remaining days of paid sick leave could "result in disciplinary action, up to and including termination." Id. at 35.

On August 3, 1994, Morgan filed a charge of disability discrimination with the EEOC. Hilti responded to the charge and continued to monitor Morgan's attendance record. When Morgan was absent on October 20 for the fourth time that month, Hilti issued another written warning about the consequences of excessive unscheduled absences. Hilti also warned her orally on November 28.

On December 6, she was given a final warning, which stated that her employment would be terminated if she missed any scheduled time in December 1994, or exceeded a monthly average of more than one unscheduled day off during the 1995 calendar year. This message was repeated at her year-end review, held December 30. By January 16, 1995, Morgan already had taken more than one unscheduled day off. Hilti terminated her employment.

Morgan filed this suit, claiming that the heightened monitoring of her attendance record and the ultimate termination occurred because she had told her supervisors about her anorexia and depression or, alternatively, because she had filed a charge of discrimination and taken FMLA leave. Hilti denied any illegal conduct and maintained that Morgan's excessive unscheduled absenteeism was the sole reason for its actions.

II. DISCUSSION

The analytical framework first pronounced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973) guides our review of plaintiff's claims. See Williams v. Widnall, 79 F.3d 1003, 1005 & n. 3 (10th Cir.1996) (explaining application of the analysis in cases arising under the ADA and the Rehabilitation Act, 29 U.S.C. § 791); ³ see also Kaylor v. Fannin Reg'l Hosp., Inc., 946 F.Supp. 988, 999-1001 (N.D.Ga.1996) (applying the analysis to an FMLA retaliation claim after a review of FMLA legislative history). In the summary judgment context, a plaintiff initially must raise a genuine issue of material fact on each element of the prima facie case, see Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir.1996), as modified to relate to differing factual situations, see Randle, 69 F.3d at 451, n. 13.

After establishment of a prima facie case, the burden shifts to the employer to offer a legitimate nondiscriminatory reason for its employment decision. Randle, 69 F.3d at 451. If the employer comes forward with a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff to show that "there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual--i.e., unworthy of belief." Id. Demonstrating pretext gets plaintiff "over the hurdle of summary judgment." Id. at 452 (quoting Ingels v. Thiokol Corp., 42 F.3d 616, 622 n. 3 (10th Cir.1994)).

Pretext can be shown by " '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 unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.' " Olson v. General Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir.1996) (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994) (further citation omitted)). "[M]ere conjecture that [the] employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988).

A. DISCRIMINATION BASED ON DISABILITY

The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees ... and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, a plaintiff must demonstrate: (1) that she is a disabled person within the meaning of the ADA, see MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1443 (10th Cir.1996); (2) that she is qualified, that is, she is able to perform the essential functions of the job, with or without reasonable accommodation, see id.; and (3) that the employer terminated her employment under circumstances which give rise to an inference that the termination was based on her disability, see White v. York Int'l Corp. 45 F.3d 357, 361 n. 6 (10th Cir.1995).

The final prong of the test requires the plaintiff to present some affirmative evidence that disability was a determining factor in the employer's decision. See Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir.1995). This burden is " 'not onerous,' " id., (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)), but it is also "not empty or perfunctory," Ennis, 53 F.3d at 59. The plaintiff must present evidence that, if the trier of fact finds it credible, and the employer remains silent, she would be entitled to judgment as a matter of law. Id.

For purposes of our summary judgment review, we...