366 F.3d 869 (10th Cir. 2004), 02-3378, Bones v. Honeywell Intern., Inc.

Docket Nº:02-3378.
Citation:366 F.3d 869
Party Name:Shirley J. BONES, Plaintiff-Appellant, v. HONEYWELL INTERNATIONAL, INC., formerly known as AlliedSignal, Inc., Defendant-Appellee.
Case Date:April 23, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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366 F.3d 869 (10th Cir. 2004)

Shirley J. BONES, Plaintiff-Appellant,

v.

HONEYWELL INTERNATIONAL, INC., formerly known as AlliedSignal, Inc., Defendant-Appellee.

No. 02-3378.

United States Court of Appeals, Tenth Circuit

April 23, 2004

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David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, KS, for Plaintiff-Appellant.

J. Nick Badgerow (Katherine A. Hansen with him on the brief), Spencer, Fane, Britt & Browne, LLP, Overland Park, KS, for Defendant-Appellee.

Before MURPHY, HOLLOWAY, and McCONNELL, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiff-appellant Shirley J. Bones, who suffers from tendinitis, worked for defendant-appellee Honeywell International, Inc., and its predecessor since 1986. In July 1999, Bones was notified that Honeywell deemed her to have voluntarily terminated her employment because she neither reported to work nor notified her supervisor or team of her absences on three consecutive working days, in violation of company policy. Bones filed for workers' compensation six months after her termination from Honeywell.

Bones filed complaints with the Kansas Human Rights Commission ("KHRC") and the Equal Employment Opportunity Commission ("EEOC"), which gave her a Notice of Suit Rights. Bones then sued Honeywell in the United States District Court for the District of Kansas, alleging violations of the Family and Medical Leave Act ("FMLA"), the Americans with Disabilities Act ("ADA"), and Kansas state law.

Honeywell moved for summary judgment on all claims. The district court granted Honeywell's motion for summary judgment, concluding, in relevant part, that: (1) Bones did not establish a prima facie case of retaliatory discharge in violation of Kansas state law; (2) Bones' violation of Honeywell's attendance policy was a legitimate, non-retaliatory reason for Bones' discharge; (3) Bones did not provide the proper notice for leave under the FMLA; (4) Honeywell would have dismissed Bones regardless of her request for an FMLA leave because she failed to comply with its notification of absence policy; (5) Bones is not disabled within the meaning of the ADA; (6) Bones did not establish a prima facie case of retaliation under the ADA; and (7) Bones' violation of Honeywell's attendance policy was a legitimate, non-retaliatory reason for Bones' termination, and such a reason was not pretext for retaliation in violation of the ADA. Bones appeals.

Exercising jurisdiction pursuant 28 U.S.C. § 1291, this court affirms the district court's grant of summary judgment to Honeywell.

II. BACKGROUND

Bones developed tendinitis in her elbow in 1989 after injuring it while throwing and

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stacking wood at home. Bones informed appellee of her elbow injury shortly thereafter, noting that it was not work-related.

In June 1997, Bones saw her personal physician, Dr. Severa, for a tendinitis flare-up and received a medical note enumerating restrictions with which Honeywell complied. Bones testified that she informed her then-supervisor, David McFadden, that she believed her injury was work-related. On July 2, 1997, Bones requested "work comp papers" from Honeywell's medical department. Bones testified that she told the nurse, Robin Thompson, that she suffered from a work-related injury. Thompson, however, testified that Bones never told her that her elbow injuries were work-related. Thompson gave Bones the workers' compensation handbook and explained the differences between workers' compensation and private insurance. Thompson never directed Bones to forego any remedies under the workers' compensation act. Bones indicated that she would "think about" filing a workers' compensation claim or staying with her primary care provider, but did not file a workers' compensation claim during her employment with Honeywell. Honeywell's in-house physician, Dr. Steelman, also evaluated Bones in July 1997, and his notes indicate that her elbow condition was non-occupational. Steelman recommended accommodations for Bones' elbow condition with which McFadden complied.

Bones was granted several short-term disability leaves for elbow-related reasons at various times throughout 1997 and 1998. Each time she requested sick leave prior to July 1999, Bones advised her supervisor that she was going to be off work. Bones admitted in her deposition, however, that she also had a large number of unexcused absences during the 1990s and was warned by McFadden that her tardiness was unsatisfactory and that she could be terminated for it.

Honeywell accommodated Bones' elbow restrictions by moving her to a file clerk position in customer service and then to a position in subassembly. In addition, Dr. Steelman evaluated Bones' workstation and recommended modifications which were made to accommodate Bones' elbow problems. The subassembly position was under Shawn Reniker's supervision. Reniker testified that he knew that Bones had work restrictions but did not know about any alleged work-related injury. Neither the medical department nor McFadden told Reniker that Bones' restrictions were related to a workers' compensation claim.

Bones went on a medical leave of absence from September 2, 1998, until October 11, 1998, and notified her supervisor of that fact. Bones did not return to work on the date her leave expired. Consequently, Honeywell sent her a notice letter on October 21, 1998, stating that according to company policy, three consecutive days of absence without notice is considered voluntary termination, and that Bones would be terminated if she did not return to work or notify Reniker of the reason for her absence. Bones denies having received this letter but admits that Reniker told her it had been sent. Upon returning to work, Bones informed Reniker that she had called in her absences. Reniker testified that Bones was allowed to retain her job because "[there] was a mix-up," as Reniker had not realized that she had called in her absences.

In January 1999, Bones began working as a material handler under Reniker's supervision. Bones was able to perform all the functions of the material handler position except the heavy lifting, which other employees did for her upon her request. Bones admitted that she did not recall

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telling Reniker that her elbow injury happened at work. Bones also admitted that she never told Reniker that she filed or was going to file a workers' compensation claim.

Bones took vacation and personal days on July 19, 20, and 21, 1999. She called in those absences by reporting them to a co-worker, Judy Fuller, but did not mention any work injury. Bones went to see Dr. Severa on July 22, 1999, because of elbow and stress problems. She neither went to work nor called in her absence that day. Likewise, Bones neither reported to work nor called in her absences on Friday, July 23 or Monday, July 26, 1999. Bones' boyfriend Todd Roe, however, delivered a medical leave of absence request from Bones to Honeywell's medical department on Friday, July 23. Roe simply handed in the forms and did not tell anyone in the medical department that Bones' leave request was for a work-related injury. The medical leave request was completed by Dr. Severa and indicated that he had seen her on July 22 and that she was unable to work from July 18, 1999, until August 16, 1999. Bones' medical leave request was not processed, however, until Thursday, July 29, because of the medical department's practice of processing medical leave requests only on Thursdays.

Bones was notified by letter dated Tuesday, July 27, 1999, that she was deemed to have voluntarily terminated her employment because she neither reported to work nor notified her supervisor or team about her absences on July 22, 23, and 26. The decision to terminate her employment was made on July 27 by Reniker and Honeywell's Human Resources Manager, April van Rensburg. Nurse Thompson, Dr. Steelman and others in the medical department did not participate in the decision to terminate Bones. Reniker and van Rensburg testified that they terminated Bones because she did not show up to work for three consecutive days and did not notify her supervisor of those absences, in violation of Honeywell policy. The district court concluded that at the time of the decision to terminate Bones, neither Reniker nor van Rensburg knew1 that Bones had applied for a medical leave of absence, had an alleged work-related injury, or could have potentially filed for workers' compensation. Evidence in the record supports this conclusion.

Bones admits that she understood that absence from work for three consecutive

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working days without notice is grounds for termination. Bones claims, however, that she was unaware that it was mandatory for her to notify her department or supervisor in addition to submitting a request for a medical leave of absence to the medical department. Honeywell's medical leave of absence procedure forms explicitly provided: "[y]ou must follow the 'call-in policy' for your department. Health Services will not call your manager for you. " (emphasis in original). Bones admitted that she received this form at least one or more times when she requested sick leaves prior to July 1999. In addition, the human resources department "in all circumstances ... told associates that it was their responsibility and their accountability to notify their supervisor [about absences due to a pending medical leave request, and] that medical would not do that."

The call-in policy for Bones' department at the relevant time was to notify Reniker of any absences. Bones testified, however, that she had been told by Reniker that if she needed to be off work for a medical condition,...

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