906 F.3d 900 (10th Cir. 2018), 16-1412, Exby-Stolley v. Board of County Commissioners

Docket Nº:16-1412
Citation:906 F.3d 900
Opinion Judge:HARTZ, Circuit Judge.
Party Name:Laurie EXBY-STOLLEY, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO, Defendant-Appellee.
Attorney:Jason B. Wesoky (Bruce G. Smith, with him on the briefs), Darling Milligan PC, Denver, Colorado, for Plaintiff-Appellant. Alan Epstein (Thomas J. Lyons, Mark S. Ratner, and Matthew J. Hegarty, with him on the brief), Hall & Evans, L.L.C., Denver, Colorado, for Defendant-Appellee.
Judge Panel:Before HARTZ, KELLY, and HOLMES, Circuit Judges. HOLMES, J., dissenting.
Case Date:October 11, 2018
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 900

906 F.3d 900 (10th Cir. 2018)

Laurie EXBY-STOLLEY, Plaintiff-Appellant,



No. 16-1412

United States Court of Appeals, Tenth Circuit

October 11, 2018

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Colorado (D.C. No. 1:13-CV-01395-WYD-NYW)

Jason B. Wesoky (Bruce G. Smith, with him on the briefs), Darling Milligan PC, Denver, Colorado, for Plaintiff-Appellant.

Alan Epstein (Thomas J. Lyons, Mark S. Ratner, and Matthew J. Hegarty, with him on the brief), Hall & Evans, L.L.C., Denver, Colorado, for Defendant-Appellee.

Before HARTZ, KELLY, and HOLMES, Circuit Judges.


HARTZ, Circuit Judge.

Plaintiff Laurie Exby-Stolley sued her former employer, the Board of County Commissioners of Weld County, Colorado (the County), under the Americans with Disabilities Act (ADA) in the United States District Court for the District of Colorado. She alleged that the County had failed to accommodate her disability, resulting in the loss of her job. The jury returned a verdict for the County. She appeals, claiming three errors in her trial: (1) the district court improperly instructed the jury that she needed to prove she had suffered an adverse employment action; (2) the district court refused to instruct the jury on a claim of constructive discharge or allow her to argue constructive discharge in closing argument; and (3) the district court misallocated the burden of proof in its undue-hardship jury instruction.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. First, an adverse employment action— that is, a materially adverse decision regarding "application procedures, ... hiring, advancement, ... discharge, ... compensation, ... training [or] other terms, conditions, and privileges of employment," 42 U.S.C. § 12112(a)— is an element of all discrimination claims under the ADA, including those based on the failure to accommodate a disability. Second, Plaintiff’s request for a constructive-discharge instruction was untimely. And finally, any error in the undue-hardship instruction was harmless because the jury instruction was irrelevant to the ground on which the jury rejected her claim.


Plaintiff worked as a health inspector for the County. Her job required her to inspect restaurants, bars, and other places that handle food, interview employees, and

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observe safety practices. While on the job in late 2009, she broke her right arm. This required prolonged treatment, including two surgeries, the second of which was in November 2011. Because of her injury, she had to use makeshift devices to assist her in her tasks, such as lifting, moving, and opening objects, and she had to learn to write using her left hand. The inspections therefore took her longer than before, and she could not complete the number of inspections required of those in her position.

There are two rather different versions of efforts to accommodate these impairments: Plaintiff’s version and the version presented by the County. We begin with Plaintiff’s version. In March 2012 she received a poor performance evaluation because of various issues, including being behind in her work. To explain her difficulty, she spoke to her two supervisors, Sara Evans and Deb Adamson. Adamson said she could not modify Plaintiff’s workload without an evaluation from her doctor, so Plaintiff, worried about her job, went to her worker’s-compensation doctor. The doctor prepared a report setting forth restrictions on her activity and sent it to Michelle Raimer, a human-resources analyst for the County. After reviewing the doctor’s report, Adamson asked Plaintiff for a list of physical activities that had been a problem for her. Plaintiff requested a meeting with someone from human resources to discuss accommodations so that she could keep her job, and she then met with Adamson and Raimer. At the meeting Raimer said that human resources had never come up with accommodations for someone in Plaintiff’s position. Raimer then arranged for Plaintiff to begin working in April at a part-time office job, which Plaintiff understood would be a temporary assignment. Plaintiff did not like the work. In May, Trevor Jiricek (to whom Evans and Adamson reported) asked her why she simply did not go on disability. Jiricek expressed anger when she said that she did not want to go on disability.

Plaintiff returned to her worker’s-compensation physician on June 6. On that visit he established what her permanent restrictions would be. Plaintiff requested another meeting with Raimer and Adamson to discuss accommodations. The meeting was held on June 19. Attending were Plaintiff, Adamson, Jiricek, and a physician. Plaintiff suggested various accommodations at the meeting, but her suggestions were rejected, and the others did not offer her alternative accommodations. As she and Jiricek were leaving the meeting he asked her if she wanted to write a letter of resignation herself or have him do it, and she felt that she was being told to resign. The two of them then went to Raimer’s office, where they discussed when her last day of work would be. They looked at job openings with the County, but there was nothing besides janitorial work that she was qualified for. Raimer raised the possibility of long-term disability, but that would not have allowed Plaintiff to return to her job without reapplying if she recovered. Jiricek then left and Raimer provided some paperwork to Plaintiff. On June 21, Plaintiff sent an email to all her colleagues informing them that she would no longer be working for the County effective June 29. The email included the sentence, "After a final evaluation with the physician and meeting with management it is apparent I am no longer able to perform the duties required in [my] job description." Supp. App. at 158.

Raimer had a different account of what happened before the June 19 meeting. She testified that before Plaintiff saw her worker’s-compensation physician in March 2012, she had complained to Adamson about pain she was suffering when performing her duties and that Adamson had requested Plaintiff to prepare a list of the

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problematic duties so they could try to find a solution. Plaintiff would also call Raimer about her pain, and Raimer similarly asked to have information about specific tasks so she could be helpful. When Raimer received the physician’s report, she discussed the matter with Adamson and tried to come up with ideas, such as reducing Plaintiff’s shift or her time in the field performing duties that caused pain. Adamson and Raimer then met with Plaintiff. After discussing some alternatives, Raimer suggested working half-time in the office. Such a temporary modified duty required the employee’s consent, and Plaintiff agreed. Raimer kept informed about how Plaintiff was doing, but Plaintiff did not request any further accommodations. Plaintiff did, however, raise a question about what would happen if she received permanent restrictions from the doctor, and Raimer responded that they would have to see if there were any such restrictions and what they were.

Jiricek testified about the June 19 meeting attended by Plaintiff, Adamson, and a County physician. According to his testimony, Plaintiff requested that a new position be created for her by piecing together from her job and other positions various tasks that she could perform. But he told her that other employees were already doing the duties of the new job she suggested for herself, and that it would not be fair or workable to take lighter tasks from her fellow employees to cobble together a new position for her. As he understood her response, she said in essence that if the County "couldn’t provide her that very specific job, that she couldn’t do the job." Aplt. App., Vol. IV at 835. He was "absolutely surprised" at her response.

Id. at 836. He met with her again about 20 minutes after the meeting to ask what she had meant, and she indicated that she was resigning. So he asked her if she needed help writing her resignation letter, but she declined his offer.

About two hours later, Jiricek and Plaintiff went to speak with Raimer. Jiricek testified that he did not recall any discussion of resignation at the meeting. He said they discussed accommodations, retraining, and other possible positions for Plaintiff; he did not stay for the whole meeting. Raimer testified that they discussed accommodating Plaintiff in her present position, finding other positions for her, and the availability of disability insurance. She showed Plaintiff a few jobs that were currently available, and asked about the tasks of Plaintiffs temporary part-time assignment. Although no concrete decisions were reached in the meeting, Raimer viewed the meeting as part of an interactive...

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