Doebele v. Sprint/United Mgmt. Co., No. 01-3372.

• Decision Date: 28 August 2003
• Docket Number: No. 01-3372.
• Citation: 342 F.3d 1117
• Parties: Jacqueline M. DOEBELE, Plaintiff-Appellant, v. SPRINT/UNITED MANAGEMENT COMPANY and Sprint Spectrum, L.P., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

342 F.3d 1117

Jacqueline M. DOEBELE, Plaintiff-Appellant, v. SPRINT/UNITED MANAGEMENT COMPANY and Sprint Spectrum, L.P., Defendants-Appellees.

No. 01-3372.

United States Court of Appeals, Tenth Circuit.

August 28, 2003.

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Dennis E. Egan, The Popham Law Firm, P.C., Kansas City, MO, for Plaintiff-Appellant.

William E. Quirk (Karen R. Glickstein and Monica M. Fanning, of Shughart Thomson & Kilroy, L.C., Kansas City, MO, on the brief), for Defendants-Appellees.

Before SEYMOUR, ANDERSON and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Jacqueline Doebele sued her former employer, Sprint/United Management Company and Sprint Spectrum, L.P. (Sprint), alleging claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), the Family and Medical Leave Act, 29 U.S.C. § 2615 (FMLA), and Kansas state law, arising from the termination of her employment with Sprint as a financial analyst. Ms. Doebele alleged that Sprint discriminated against her in violation of the ADA by refusing to provide reasonable accommodation for her mental disabilities and by discharging her, and retaliated against her for exercising her rights under the ADA, the FMLA, and the workers compensation laws of Kansas. The district court granted summary judgment for Sprint on all claims, see Doebele v. Sprint Corp., 157 F.Supp.2d 1191 (D.Kan.2001), and denied Ms. Doebele's post-judgment motions for relief, see Doebele v. Sprint Corp., 168 F.Supp.2d 1247 (D.Kan.2001).

Ms. Doebele appeals, contending the district court erred by: (1) considering and relying upon evidence presented for the first time in Sprint's reply pleading in the summary judgment proceedings, or alternatively by refusing to grant her motion to file a surreply; (2) weighing the evidence against her in concluding as a matter of law that she was not a "qualified individual with a disability" within the meaning of the ADA; (3) weighing the evidence against her in concluding as a matter of law that she had not shown Sprint's reasons for her termination were a pretext for retaliation in violation of the ADA and the FMLA; and (4) in granting summary judgment against her on her state law claim that Sprint fired her in anticipation that she would file a workers compensation claim. We affirm in part, reverse in part, and remand for further proceedings.

I

In determining whether summary judgment is warranted, we review the district court's order de novo. See Selenke v Med. Imaging of Colo., 248 F.3d 1249, 1255 (10th Cir.2001). Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Selenke, 248 F.3d at 1255-56. Viewed most favorably to Ms. Doebele, the record reveals the following background to this litigation.

Ms. Doebele graduated from Kansas State University in 1984 with a degree in business administration and an emphasis in accounting. After working in other financial and accounting positions, she began employment with Sprint in September, 1996, as a financial analyst and remained in that capacity until her employment was terminated on April 20, 1999. She was supervised by Lorrie McCurdy, who in turn answered to Bridget Carson. Ms. Doebele received merit pay increases, although in less than the maximum amount, in 1996, 1997, 1998, and in 1999 shortly before she was fired. Her job performance appraisals for 1996 and 1997 indicated that she met expectations, although she did not receive the highest rating available. She was not given a formal performance evaluation in 1998, but met with her supervisor in April 1999 to discuss her performance shortly before her employment was terminated.

By all accounts the working environment in Ms. Doebele's department was not pleasant. The work load was heavy, several of the employees did not get along with one another, and rumors and gossip added to the negative work environment. In 1997, Ms. Carson referred Ms. Doebele to the Employee Assistance Program (EAP) after being told by another employee, Chris Fluke, that Ms. Doebele had made a comment about jumping off a bridge. Evidence in the record indicates that although this matter was to be kept confidential, word of the incident began to circulate. "Co-workers told [Ms. Doebele] that negative comments were being made concerning her character and mental stability. One co-worker told her that there were organized attempts to ostracize and fire her." Doebele, 157 F.Supp.2d at 1196.

A memo of a meeting between Ms. McCurdy and Ms. Fluke dated June 16, 1997, reveals several instances in which Ms. Fluke brought to Ms. McCurdy's attention what Ms. Fluke considered work deficiencies on the part of Ms. Doebele and, in addition, informed Ms. McCurdy that two employees had told Ms. Fluke they felt physically threatened by Ms. Doebele. Ms. McCurdy stated in her memo:

This is alarming. Not only is it horrible for someone to feel physically threatened at their job, but alarming that I see no signs to indicate such. This is not good. I will meet with each of the employees individually and refer them to EAP for any questions they might have. EAP is better qualified to answer questions in this area. My other concern is that neither employee has come to me with their concern which also makes me wonder how valid the claim is.

Aplt.App., vol. II at 579. Shortly thereafter Ms. McCurdy met with both employees identified by Ms. Fluke and both stated that they had no problems with Ms. Doebele and did not feel threatened by her. Ms. McCurdy noted in her memo of these meetings that "[i]t looks like Chris is orchestrating this." Id. at 582. Although Ms. Doebele stated at department group counseling sessions in November and December of 1997 that she felt ostracized as a result of the comments made by Ms. Fluke, no action was taken against Ms. Fluke.

On March 23, 1998, Ms. McCurdy gave Ms. Doebele a verbal warning for inappropriate email usage, tardiness, and inappropriate behavior in the workplace.¹ Ms. Doebele, along with a number of other employees, admittedly sent or received inappropriate emails. It is also undisputed that Ms. Doebele was tardy on occasion. The instances of inappropriate workplace behavior all involved Ms. Doebele's interactions with other department employees during which she allegedly became confrontational, angry or defensive. Ms. Doebele believed these incidents were due to the fact that she was treated differently from other employees as a result of rumors in the workplace about her mental problems. Evidence in the record indicates that Ms. Doebele's mental condition was a topic of conversation among the other employees in her department.

On July 22, 1998, after the verbal warning had become inactive, Ms. McCurdy placed Ms. Doebele on written warning. The warning stated that it was the result of "four confrontational incidents" between Ms. Doebele and other employees, and phone calls from Ms. Doebele to employees "at home after work hours to discuss work-related issues at length." Aplt.App., vol. I at 302. The warning directed Ms. Doebele to have no closed-door meetings with other individuals, and instead to discuss issues in an open forum or a small conference that included her manager. It also directed Ms. Doebele to refrain from calling employees after work to discuss issues that could be handled during the work day.

The record indicates that sometime shortly before Ms. Doebele was given this warning, she spoke with Kim Klosak in Sprint's human resources department and said she felt she was being subjected to a hostile work environment. Ms. Klosak investigated the matter and believed Ms. Doebele was being set up, noting that two of the alleged confrontational incidents underlying the upcoming written warning involved employees who were friends with the people who admittedly wanted to "get rid of" Ms. Doebele. Aplt.App., vol. II at 513. Ms. Klosak had a meeting with Ms. Carson and Ms. McCurdy, whom the record indicates were the people who wanted to fire Ms. Doebele, and told them that harassment in the workplace violated Sprint policy. Ms. Klosak and Ms. Doebele discussed the situation with Abigail Dillard, the equal opportunity officer for Sprint. Ms. Dillard told Ms. Doebele to document the issue and send it to her.

Ms. Dillard also discussed Ms. Doebele's concern about a hostile work environment with Ms. McCurdy and Ms. Carson, and told them she would be conducting an investigation into the matters about which Ms. Doebele had raised concerns. Ms. Dillard knew that Ms. Doebele was going to be given the written warning and discussed that matter with Ms. McCurdy as well, pointing out that the warning needed to be supported with written documentation. Ms. Dillard stated that she would have to be provided with appropriate documentation before she could agree that they needed to go to the next level of corrective action. As of Friday, July 17, 1998, Ms. Dillard had received no documentation from Ms. McCurdy that would support corrective action.

On Monday, July 22, Ms. McCurdy forwarded documentation to Ms. Dillard consisting of a memo from Roosevelt Draine dated July 19, 1998, describing a meeting he had with Ms. Doebele during the week of May 18, 1998, and a memo from Bonita Holland dated July 21, 1998, describing a conversation she had with Ms. Doebele on June 11, 1998. Ms. Dillard believed the incidents described in those memos should have been documented at the time they occurred. She discussed this problem with Ms. McCurdy and Ms. Carson, and asked them why the documentation had not been...