717 F.3d 736 (10th Cir. 2013), 11-8099, Koessel v. Sublette County Sheriff's Dept.

Docket Nº:11-8099.
Citation:717 F.3d 736
Opinion Judge:TYMKOVICH, Circuit Judge.
Party Name:Kevin L. KOESSEL, Plaintiff-Appellant, v. SUBLETTE COUNTY SHERIFF'S DEPARTMENT; Board of County Commissioners Sublette County Wyoming; Wayne M. Bardin; William W. Cramer; John P. Linn; Joel E. Bousman, in the individual and official capacities, Defendants-Appellees.
Attorney:Stephen H. Kline (Melinda S. McCorkle with him on the reply brief) Kline Law Office, P.C., Cheyenne, WY, for Appellant. Richard Rideout, Law Offices of Richard Rideout, PC (with Gregory A. Phillips, Wyoming Attorney General, John D. Rossetti, Deputy Attorney General, and Thomas W. Rumpke, Senior ...
Judge Panel:Before TYMKOVICH, EBEL, and O'BRIEN, Circuit Judges.
Case Date:May 14, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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717 F.3d 736 (10th Cir. 2013)

Kevin L. KOESSEL, Plaintiff-Appellant,

v.

SUBLETTE COUNTY SHERIFF'S DEPARTMENT; Board of County Commissioners Sublette County Wyoming; Wayne M. Bardin; William W. Cramer; John P. Linn; Joel E. Bousman, in the individual and official capacities, Defendants-Appellees.

No. 11-8099.

United States Court of Appeals, Tenth Circuit.

May 14, 2013

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         Stephen H. Kline (Melinda S. McCorkle with him on the reply brief) Kline Law Office, P.C., Cheyenne, WY, for Appellant.

          Richard Rideout, Law Offices of Richard Rideout, PC (with Gregory A. Phillips, Wyoming Attorney General, John D. Rossetti, Deputy Attorney General, and Thomas W. Rumpke, Senior Assistant Attorney General on the brief for Appellee Wayne M. Bardin in his individual capacity), Cheyenne, WY, for Appellees.

          Before TYMKOVICH, EBEL, and O'BRIEN, Circuit Judges.

          TYMKOVICH, Circuit Judge.

         Kevin Koessel was terminated from his position as a deputy sheriff in Sublette County, Wyoming, due to concerns about the lingering effects of a stroke he suffered. In response, Koessel brought a suit in district court against the Sheriff and the County alleging they violated the Americans with Disabilities Act (ADA), breached his employment contract, and violated his substantive and procedural due process rights.

         The district court granted the Defendants' motion for summary judgment, finding there were no genuine issues of material fact for a jury.

         We agree with the district court that the Defendants' are entitled to summary judgment on all of Koessel's claims. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's judgment.

         I. Background

         Koessel joined the Sublette County Sheriff's Office as a patrol officer in April 2002. In December 2007, while still a patrol officer, Koessel suffered a stroke. He was placed on administrative leave while he recovered. As part of his treatment, he dropped his smoking habit and began physical therapy. In April 2008, Koessel returned to the Sheriff's Office part time, in a temporary office job in which he conducted vehicle registration checks and approved field reports. After several months of these duties, in August 2008, Koessel's doctor cleared him for full-time work, 40-hours per week, but restricted him from working overtime. Returning full-time, Koessel continued the desk assignment, although he was authorized to make routine traffic stops while on his daily commute.

         During this time, some officers in the Sheriff's Office reported concerns about Koessel's behavior and performance to the Sheriff, Wayne Bardin. For example, in one report, a captain overheard a situation where Koessel became flustered while making a traffic stop because he could not remember a word. The captain suggested to Sheriff Bardin that Koessel not be allowed to initiate traffic stops, but only perform backup duties— a suggestion that Bardin followed. Other officers reported Koessel would lose his temper while on the job. On at least one occasion, Koessel left work early because of blood pressure problems.

          These concerns led Sheriff Bardin to place Koessel on administrative leave in April 2009 and order him to undergo an independent medical examination, which was conducted by Dr. Gerald Moress, a neurologist. Sheriff Bardin sent Dr. Moress a letter explaining his concerns about Koessel, in particular Koessel's lapses of memory and blood pressure problems. After conducting an evaluation of Koessel, Dr. Moress made the following finding: " Strictly from a neurological standpoint he would be able to work, but there are potential problems to cognitive functioning that may have resulted from the stroke

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and should be investigated." App. 125. Dr. Moress recommended Koessel be examined by a neuropsychologist.

         Koessel saw a psychologist, Dr. Michael Enright, who performed a psychological fitness for duty evaluation. Though Koessel's scores on a standard psychological test were unchanged from when he first took the test several years earlier (before the stroke), Dr. Enright found that Koessel's symptoms of " mild to moderate fatigue, episodes of lightheadedness and episodes of emotional disinhibition (weeping)" could interfere with the performance of some of his patrol officer duties. Id. at 130-31. Dr. Enright recommended Koessel be placed in a low-stress position, one in which he did not have regular contact with the public.

         On May 20, 2009, Koessel returned to work from administrative leave— this time as an assistant to the Emergency Management Coordinator, who was housed in the Sheriff's Office. This was not intended to be a permanent position, but a temporary one. On June 17, 2009, Sheriff Bardin informed Koessel that the County Board of Commissioners had not approved additional funds for the position, and again placed Koessel on administrative leave.

         On August 12, 2009, Koessel received a letter from Bardin, terminating his employment. It stated in part:

Sublette County Sheriff's Office is in receipt of the report from Dr. Michael Enright, dated April 24, 2009, stating, in part, that you are not physically fit to perform the duties of a Sublette County Deputy Sheriff. After careful consideration the Sheriff's department has determined that there are no available positions in the Sheriff's Department for which you are medically cleared to perform. For safety purposes and to prevent injury to you or to the public at large, this office has no alternative but to discharge you from duty.

App. 133. The letter also informed Koessel that he had five days to file a written request for a hearing to dispute his termination. Koessel never filed a request, and he was terminated.

         Over a year later, Koessel sued the Sheriff's Office, Sheriff Bardin, the Sublette County Board of Commissioners, and the County Commissioners (" Defendants" ). He alleged violations of the ADA, breach of contract, and violations of 42 U.S.C. § 1983 involving rights under the Fifth and Fourteenth Amendments (procedural and substantive due process).

         After discovery, the Defendants filed a motion for summary judgment. On the ADA claim, the district court noted that a prima facie case required Koessel to show (1) he was disabled within the meaning of the ADA, (2) he was able to perform the essential functions of his job with or without reasonable accommodation, and (3) he suffered discrimination by an employer because of his disability. The district court found that Koessel's claim faltered on the second element, whether he could perform his job with or without reasonable accommodation. The court concluded Koessel could not make a prima facie case of an ADA violation because he put forward no evidence contradicting Dr. Enright's report— which evidence was necessary to establish that Koessel was qualified to perform his job. The court also granted summary judgment on the breach of contract and due process claims, holding that the Defendants followed appropriate procedures in terminating Koessel and made their decision in good faith.

         II. Analysis

          Koessel argues the district court erred in granting the Defendants' motion for

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summary judgement, claiming fact disputes existed on all of his claims.

          We review the district court's order granting summary judgment de novo. Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). " Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." McCarty v. Gilchrist, 646 F.3d 1281, 1284-85 (10th Cir.2011). " There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party." Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004).

          A. ADA Claim

         Koessel first contends the district court erred in dismissing his ADA claim, maintaining the Defendants fired him on the basis of a perceived disability when he was in fact not disabled.

          The ADA protects individuals with physical disabilities or mental impairments that substantially limit major life activities, as well as individuals who are merely perceived to have such impairments. 42 U.S.C. § 12102(1)(C). To establish a prima facie case of discrimination under the ADA, Koessel must show (1) he is disabled (or perceived as disabled) as defined by the ADA, (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) he suffered discrimination as a result of his disability. Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1086 (10th Cir.2008).

          A person is perceived as disabled when an employer regards the employee as suffering from a physical or mental impairment that substantially limits his or her ability to work. Id. An individual may qualify as disabled under the " regarded as" provision of the ADA in two ways:

(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); see also 29 C.F.R. § 1630.2( l ) (defining " regarded as having such an impairment" ). In either event, our...

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