427 F.3d 1315 (10th Cir. 2005), 04-1447, Jones v. Denver Public Schools

Docket Nº:04-1447.
Citation:427 F.3d 1315
Party Name:Mark R. JONES, Plaintiff-Appellant, v. DENVER PUBLIC SCHOOLS, a Colorado school district; Jerry L. Brinkley, individually; Bud Bullard, individually; Jerry Wartgow, individually and in his official capacity as Superintendent of the Denver Public Schools, Defendants-Appellees.
Case Date:November 02, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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427 F.3d 1315 (10th Cir. 2005)

Mark R. JONES, Plaintiff-Appellant,


DENVER PUBLIC SCHOOLS, a Colorado school district; Jerry L. Brinkley, individually; Bud Bullard, individually; Jerry Wartgow, individually and in his official capacity as Superintendent of the Denver Public Schools, Defendants-Appellees.

No. 04-1447.

United States Court of Appeals, Tenth Circuit.

Nov. 2, 2005


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James P. Rouse (Brett A. McDaniel with him on the briefs) Rouse & Associates, P.C., Greenwood Village, Colorado, for Plaintiff-Appellant.

Erica L. White (Patrick B. Mooney with her on the brief) Semple, Miller, Mooney & Farrington, P.C., Denver, Colorado, for Defendants-Appellees.

Before TACHA, Chief Circuit Judge, EBEL and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

The Family and Medical Leave Act ("FMLA") entitles eligible employees to up to twelve weeks of medical leave each year "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such

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employee." 29 U.S.C. § 2612(a)(1)(D). The principal issue in this case is the meaning of that phrase, in light of regulations issued by the Department of Labor. The case also involves supplemental claims under state law for breach of implied promise and promissory estoppel.

I. Background

Plaintiff-Appellant Mark Jones accepted a job as a telecommunications technician with the Denver Public Schools ("the District") on May 3, 1999. Although Mr. Jones was unaware of it, the written job description required that all technicians hold a valid driver's license. The month before, Mr. Jones's driver's license had been suspended for five years on account of multiple alcohol-related offenses. On his first day of work, the manager of the telecommunications department told Mr. Jones, "I think we can work around that." R. Vol. I, p. 68.

On May 26, 1999, Mr. Jones signed an employment agreement that included express language making him an at-will employee:

The School District and the Employee recognize that the Employee is an "at will" Employee, and that the Employee can terminate the employment relationship for any reason at any time, and the School District can also terminate the employment relationship for any reason at any time.

Id. at 153,5. The District changed Mr. Jones's employment status in August 1999, making him a full-time classified employee rather than an hourly employee. Policy GDQD-R, which concerns the dismissal of classified District employees, entitles full-time employees facing discharge to two pre-termination hearings upon request, one before the Human Resources administrator and another before an impartial hearing officer, to determine "if there is any competent evidence to support the recommended dismissal. "Id. at 156. Policy GDQD-R also states that those procedures "do not change the at-will status of classified employees. "Id.

Until June 14, 2001, Mr. Jones worked under the supervision of his father. Co-workers complained that during this period, Mr. Jones abused the sick leave policy by taking more sick days than he was allotted. Some believed he was a hypochondriac or that he called in sick after nights of drinking. Also, his lack of a driver's license proved inconvenient to co-workers, who were required to drive Mr. Jones to and from work, as well as to and from job sites. Mr. Jones also reportedly refused to comply with the department's break policy, even after receiving a written reprimand. After his father's retirement, Mr. Jones came under the supervision of Defendant Jerry Brinkley. Shortly thereafter, Mr. Brinkley gave Mr. Jones a formal job evaluation rating his performance "fair" in fourteen categories and "poor" in six categories. The evaluation summarized Mr. Jones's deficiencies as follows:

Mark needs to work on absenteeism, negativism, anger management, listening skills and guidance acceptance. . . . Marks [sic] main strengths are quality and technical knowledge[.] His weakness lies in his personal judgments, prioritization and absenteeism.

Id. at 162-64.

Problems came to a head in early October 2001. On Monday, October 1, Mr. Jones claims that he fell at his home and aggravated a pre-existing back injury. On Monday and Tuesday, he called in sick, stayed at home, and took ibuprofin, but did not call a doctor. When he called in sick again on Wednesday, his supervisor told him he would need to bring a note from his doctor upon his return to work. On Thursday, October 4, Mr. Jones visited Dr. Ryan Kramer, who gave him a cortisone

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shot, indicated in his notes that Mr. Jones had "pain mid butt [to] mid calf," and wrote him a note that read "off work from 10-1-01 thru 10-5-01 due to wrenched back. "Id. at 192. Dr. Kramer asked Mr. Jones to schedule a follow-up visit for roughly three weeks later.

By Sunday morning, October 7, Mr. Jones's back pain had subsided and he felt well enough to work. That afternoon, however, he became sick with the flu, and he therefore called in sick again on Monday and Tuesday.

Mr. Jones was terminated when he returned to work on Wednesday. A letter of dismissal, written by Mr. Brinkley and dated October 10, 2001, stated:

You are being dismissed due to your inability to conform with the job requirements of a Telecommunications Technician. Your unreliable attendance record, as evidenced from the last 7 days [sic] absence, is counterproductive to the efficient operation of the Department of Technology Services.

Id. at 165. Upon learning that Mr. Jones was entitled to pre-termination hearings under Policy GDQD-R, Mr. Brinkley sent Mr. Jones a second letter on October 18, offering additional reasons for the dismissal. The second letter cited the department's shrinking workload, as well as Mr. Jones's unreliable attendance record, violations of the break policy, and lack of a driver's license, in support of the decision.

Mr. Jones visited Dr. Kramer again on October 24. The doctor's notes from the second visit include a passing reference to Mr. Jones's back pain: "Reviewed back - improving. "Id. at 191. Mr. Jones apparently has not sought medical treatment for his back condition since October 2001.

Pursuant to Policy GDQD-R, Mr. Jones requested and received a pre-termination hearing before the Human Resources director, as well as an appeal before an impartial hearing officer. Both proceedings upheld the dismissal, which became effective November 6, 2001.

Mr. Jones brought this action in September 2002 against the District, Mr. Brinkley, and two other school officials in their individual capacities, raising three claims: (1) interference under the FMLA; (2) breach of implied contract under Colorado law; and (3) promissory estoppel under Colorado law. In an oral ruling, the district court granted the defendants' motion for summary judgment as to all claims. The district court granted summary judgment on the FMLA claim on the ground that a jury could not reasonably infer that the reason for Mr. Jones's termination was his five-day absence from work on account of his back pain. Tr. 331. The court noted that "he was also fired because he doesn't have a driver's license," which was a job requirement. Id. at 332. The court rejected his common law claims summarily:

I'm granting the summary judgment. The promissory estoppel doesn't make it. There's an express contract, and that--you can't rely on somebody telling you we can work around that to make that an enforceable promise. And, there's no implied contract. Judgment will enter for the defendants.

Id. at 333.

On appeal, Mr. Jones presses all three claims. We review the grant of summary judgment de novo, Wells v. Colo. Dep't of Transp.,325 F.3d 1205, 1209 (10th Cir. 2003), and affirm only if the record, considered in the light most favorable to the plaintiff, establishes no genuine issue of material fact, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).

II. FMLA Interference

The FMLA makes it unlawful for any covered employer "to interfere with,

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restrain, or deny the exercise of or the attempt to exercise, any right provided in this subchapter." 29 U.S.C. § 2615(a)(1). To make out a prima facie claim for FMLA interference, a plaintiff must establish (1) that he was entitled to FMLA leave, (2) that some adverse action by the employer interfered with his right to take FMLA leave, and (3) that the employer's action was related...

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