662 F.3d 1134 (10th Cir. 2011), 10-8112, Carter v. Pathfinder Energy Services, Inc.

Docket Nº:10-8112.
Citation:662 F.3d 1134
Opinion Judge:GILMAN, Circuit Judge.
Party Name:Dennis CARTER, Plaintiff-Appellant, v. PATHFINDER ENERGY SERVICES, INC., Defendant-Appellee.
Attorney:Jeffrey C. Gosman, Gosman Law Office, Casper, WY, for Plaintiff-Appellant. Christopher E. Moore (Christine M. White with him on the brief), Coats Rose, New Orleans, LA, for Defendant-Appellee.
Judge Panel:Before KELLY, LUCERO, and GILMAN, Circuit Judges.[*]
Case Date:November 03, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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662 F.3d 1134 (10th Cir. 2011)

Dennis CARTER, Plaintiff-Appellant,



No. 10-8112.

United States Court of Appeals, Tenth Circuit.

November 3, 2011

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         Jeffrey C. Gosman, Gosman Law Office, Casper, WY, for Plaintiff-Appellant.

          Christopher E. Moore (Christine M. White with him on the brief), Coats Rose, New Orleans, LA, for Defendant-Appellee.

          Before KELLY, LUCERO, and GILMAN, Circuit Judges.[*]

         GILMAN, Circuit Judge.

         Dennis Carter began working as a directional driller at Pathfinder Energy Services, Inc., in December 2004. Two years later, after Carter's declining health had caused a reduction in his workload, Pathfinder fired Carter for " gross misconduct" based primarily on an altercation that he had had with a coworker and his language and attitude during a conversation with his supervisor.

         Carter then sued Pathfinder in federal district court, alleging that Pathfinder had violated his rights under the Americans with Disabilities Act (ADA) and the Employee Retirement Income Security Act (ERISA). He also alleged that Pathfinder had breached his implied-in-fact employment contract. The district court granted summary judgment in favor of Pathfinder on all three claims. For the reasons set forth below, we REVERSE the district court's grant of summary judgment on Carter's ADA claim, AFFIRM the district court's grant of summary judgment on the remaining claims, and REMAND the case for further proceedings on the ADA claim.

         I. BACKGROUND

         Because this is an appeal from a grant of summary judgment, we have set forth the following facts in the light most favorable to Carter, the party against whom summary judgment was entered. See Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1078 (10th Cir.1997). All reasonable inferences from the factual record have been drawn in his favor.

         Carter is a diabetic. He also suffers from fibromyalgia, which is a chronic pain condition, and postural hypotension, which causes a drop in blood pressure whenever he stands up. These conditions currently combine to render Carter totally disabled.

          Before he became totally disabled, Carter worked at Pathfinder, an energy company located in Casper, Wyoming. His work as a directional driller was a demanding

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job that entailed long shifts— often 24 hours or more— involving the drilling of non-vertical oil wells. Carter's employment with Pathfinder began in late December 2004, after Carter had been diagnosed with diabetes and fibromyalgia. Pathfinder was aware of at least his diabetes when it hired Carter. The record does not reflect whether it also knew about his fibromyalgia.

         Carter signed Pathfinder's offer of employment in January 2005, several days after he was hired. The offer explained that it shall not " be construed as an employment contract" and that " [e]mployment with the Company is at the will of the Company with or without notice and with or without cause and may be terminated at any time." At the same time that he signed the offer, Carter also signed his employment application. In bold, the application explicitly stated:

I understand and agree that nothing contained in this application, or conveyed during any interview, is intended to create an employment contract. I further understand and agree that if I am hired, my employment will be " at will" and without fixed term, and may be terminated at any time, with or without cause and without prior notice, at the option of either myself or the Company. No promises regarding employment have been made to me, and I understand that no such promise or guarantee is binding upon the Company unless made in writing.

         Two other documents— Pathfinder's employee handbook and Carter's signed receipt for the handbook— further advised that Carter's employment was at will and that he could be fired at any time for any reason. Somewhat contradictorily, the handbook outlined the possible grounds for dismissal and set forth Pathfinder's progressive disciplinary policy, under which an employee's misconduct typically receives one or more warnings before termination. The handbook was given to Carter prior to signing the other documents described above.

         Carter's first 20 months on the job passed smoothly. He worked full-time and was never given a warning or disciplined for bad behavior. During this time, Carter controlled his diabetes primarily through diet and exercise. He took oral medication as well, albeit irregularly.

         In the fall of 2006, however, Carter's health began to worsen. He felt increasingly weak and fatigued, and lost significant body weight. By October, his health had deteriorated to the point where he could no longer work full-time as a directional driller. Carter discussed his health problems with Rich Arnold, his supervisor at Pathfinder, and explained his need for more rest. His workload was subsequently cut in half. Whereas Carter had worked two 10-to-12-day job assignments per month in the past, he would now work just one assignment per month.

         By November, Carter's health had declined to the point where his friends had to help him prepare his food, get dressed, feed his pets, do laundry, shop for groceries, and shower. But because his reduced workload gave him time to rest and recover in between job assignments, Carter remained able to work full 24-hour shifts while on the job, even as his health continued to deteriorate.

          The exact cause of Carter's deteriorating heath is not clear from the record. But sometime near the end of 2006, Carter contracted hepatitis C, an infectious disease that causes inflammation of the liver. Although he was not diagnosed with this disease until January 2007— after his employment with Pathfinder had ended— he began experiencing its symptoms before then. A visit to the doctor on December 1,

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2006 revealed potential problems with his liver, a symptom consistent with hepatitis C but not diabetes.

         After that doctor's visit, Carter resumed taking oral medication for his diabetes. He had not taken the medication during the fall of 2006 because he believed that minding his diet and exercise had been effective at controlling his diabetes in the past, and that the medication was of limited help to him. In addition, the doctor who had been helping Carter manage his diabetes suddenly retired from medicine in September 2006. Carter spent several months trying to find a new doctor to treat his diabetic condition.

         On December 22, 2006, as Carter was finishing up a 10-day job assignment, Arnold asked Carter to immediately work another job for Ultra Petroleum. Carter agreed. But on his way to the Ultra job site the next day, Carter called Arnold and told him that he was no longer feeling well enough to work and needed time off to rest and recover from his last job assignment before starting a new one.

         The conversation then became somewhat tense. Arnold said that he would have to call the other Pathfinder driller assigned to the Ultra job and " let him know you're not going to be there to help him." Not wanting to let his coworker down, Carter agreed to work the job despite his health problems, using an expletive that he has testified " is constantly used in the oil field." He told Arnold: " Well, Rich, I'll fucking go.... I know what it's like to work by yourself and I don't like it, so I'll go. But when I get back, I'm going to go to my doctor and get you a letter stating that at this time I'm unable to work." Arnold replied that Carter had taken " more days off than anybody," to which Carter reacted defensively, saying: " I have been sick and you know I have been sick."

         Carter also mentioned that he might need to seek short-term and long-term disability benefits under Pathfinder's employee-benefit plan, that Pathfinder " can't just take those benefits away," and that he would see Arnold and Pathfinder " in court" if Pathfinder took the benefits away. Arnold responded: " You won't see me in court." Carter then abruptly ended the conversation.

         Shortly thereafter, Carter arrived at the Ultra job site, which included overnight rooms for employees. He went to his room and saw that his bunkmate had left a pair of pants on the lower bunk. Carter moved the pants to the upper bunk, placed his sleeping bag on the lower bunk, and went to sleep. When he awoke, Carter found out that his bunkmate, who worked at Pathfinder as a measure-while-drilling hand (or MWD, for short) and who had just completed a 40-hour shift, was upset that Carter had taken the lower bunk. Carter overheard the MWD telling Dave Wheeler, another Pathfinder directional driller, about what had happened. Wheeler informed the MWD that Carter was justified in taking the bunk because directional drillers typically get to choose their beds first. Carter then chimed in. He minced no words: " [I]t don't make a fuck to me. I can go into town and get a motel room, you know. So it doesn't make a fuck to me." Carter then took the upper bunk, and that was the extent of the incident.

          The next day, on December 24, 2006, Carter found blood in his urine and went home sick. Arnold told Carter that the two needed to meet " after Christmas." On December 27, 2006, Arnold and Carter discussed the incident with the MWD from a few days earlier. Arnold had heard that Carter told the MWD to " fuck off." Carter responded by giving his version of the events, which are recounted above. After

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the two finished discussing the incident with the MWD, Arnold...

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