Exby-Stolley v. Bd. of Cnty. Comm'rs

• Decision Date: 28 October 2020
• Docket Number: No. 16-1412,16-1412
• Citation: 979 F.3d 784
• Parties: Laurie EXBY-STOLLEY, Plaintiff - Appellant, v. BOARD OF COUNTY COMMISSIONERS, Weld County, Colorado, Defendant - Appellee. United States of America; Colorado Plaintiff Employment Lawyers Association; National Disability Rights Network ; National Employment Lawyers Association, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

979 F.3d 784

Laurie EXBY-STOLLEY, Plaintiff - Appellant,

v.BOARD OF COUNTY COMMISSIONERS, Weld County, Colorado, Defendant - Appellee.

United States of America; Colorado Plaintiff Employment Lawyers Association; National Disability Rights Network ; National Employment Lawyers Association, Amici Curiae.

No. 16-1412

United States Court of Appeals, Tenth Circuit.

FILED October 28, 2020

OPINION ON REHEARING EN BANC

HOLMES, Circuit Judge, joined by BRISCOE, LUCERO, MATHESON, BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.

In this en banc appeal, we address whether an adverse employment action is a requisite element of a failure-to-accommodate claim under Title I of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12111 – 12117. We conclude that the answer is "no," reaching this determination through a comprehensive analysis, including consideration of the following: the ADA's text; our failure-to-accommodate precedent; the failure-to-accommodate decisions of our sister circuits; the views of the Equal Employment Opportunity Commission (the "EEOC"), the federal regulatory agency charged with administering the ADA; and the ADA's general remedial purposes.

The district court in this case had instructed the jury that, in order to prevail on her ADA failure-to-accommodate claim, Plaintiff-Appellant Laurie Exby-Stolley was required to establish that she had suffered an adverse employment action. Over a dissenting opinion, a panel of this court agreed and affirmed the district court's judgment. See Exby-Stolley v. Bd. of Cty. Comm'rs , 906 F.3d 900 (10th Cir. 2018) [hereinafter the Panel Majority]. We granted rehearing en banc. "In accordance with our local rule, the judgment was vacated, the mandate stayed, and the case was restored as a pending appeal." United States v. Nacchio , 555 F.3d 1234, 1236 (10th Cir. 2009) (en banc) (citing 10TH CIR. R. 35.6 ).

On en banc rehearing and following oral argument, we now hold that the district court erred: viz. , an adverse employment action is not a requisite element of an ADA failure-to-accommodate claim. Accordingly, we reverse the district court's judgment and remand for a new trial. Because we remand for a new trial and the original decision turned on trial-related issues, we vacate in full the decision (including the dissent). See, e.g. , id. ("vacat[ing] the panel opinion insofar as it reversed the district court's judgment"); The Tool Box v. Ogden City Corp. , 355 F.3d 1236, 1243 (10th Cir. 2004) ("[W]e VACATE the panel decision and AFFIRM the district court's judgment.").

I

This en banc appeal centers on a pure issue of law: whether an adverse employment action is a requisite element of an ADA failure-to-accommodate claim. Therefore, we need not recount at length here the facts and procedural history. We only discuss the factual and procedural background insofar as it is germane to our resolution of this appeal.

In 2013, Ms. Exby-Stolley sued her former employer, the Board of County Commissioners of Weld County, Colorado (the "County"). In particular, and as relevant here, Ms. Exby-Stolley contended that the County violated the ADA by failing to accommodate her disability. See 42 U.S.C. § 12112(a), (b)(5)(A). More specifically, she claimed that the County had not reasonably accommodated her even though she had informed it that her physical limitations resulting from a workplace injury were preventing her from adequately completing her work, and even though she also had proposed to it various reasonable accommodations. Ms. Exby-Stolley also alleged that, beyond not being accommodated, she was compelled to resign, which she in fact did prior to filing this suit. The County, beyond disputing that it had failed to make sufficient efforts to reasonably accommodate Ms. Exby-Stolley, also alleged that her resignation had been voluntary.

In its post-trial instructions to the jury regarding Ms. Exby-Stolley's failure-to-accommodate claim, the district court stated that

Plaintiff must prove each of the following facts by a preponderance of the evidence:

1. That Plaintiff had a "disability," as defined in these instructions;

2. That Plaintiff was a "qualified individual," as defined in these instructions;

3. That Plaintiff was discharged from employment or suffered another adverse employment action by Defendant ; and

4. That Plaintiff's disability was a substantial or motivating factor that prompted Defendant to take that action.

Aplt.’s App., Vol. II, at 440 (Jury Instrs., filed Oct. 11, 2016) (emphasis added). The instructions specified that "[a]n adverse employment action constitutes a significant change in employment status, such a[s] hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 449.

In answers to special interrogatories, the jury found that Ms. Exby-Stolley had "proven by a preponderance of the evidence" both "that she had a disability, as defined in the instructions, at the time of the employment actions in question" and "that she is a qualified individual with a disability, as defined in the instructions." Id. at 419 (Verdict Form, filed Oct. 11, 2016). But the jury nonetheless ruled in the County's favor, finding that Ms. Exby-Stolley had not "proven by a preponderance of the evidence" that she had been "[discharged from employment] [not promoted] [or other adverse action] by Defendant." Id. (brackets in original).

Ms. Exby-Stolley appealed, arguing in part that the district court erred in instructing the jury that she had to prove an adverse employment action as part of her failure-to-accommodate claim. Over a dissenting opinion, the Panel Majority affirmed the district court's judgment, concluding as relevant here that "an adverse employment action is an element of a failure-to-accommodate claim." Exby-Stolley , 906 F.3d at 905.

The Panel Majority acknowledged that "the language ‘adverse employment action’ does not appear in the ADA" but observed that it was "well established in judicial opinions" in the Title VII context, where this language has been used as a "shorthand" for language that is materially similar to the terms-conditions-and-privileges-of-employment language of § 12112(a) of the ADA. Id. at 906–07. And the Panel Majority deemed it "natural to use the same shorthand—adverse employment action—for this statutory language in the ADA as is used for like language in Title VII." Id. at 908. It "is clear from the language of § 12112," reasoned the Panel Majority, that "[t]he terms-and-conditions-of-employment language"—and, consequently, the shorthand, adverse-employment-action language—"applies to failure-to-accommodate claims under the ADA." Id. at 907. And, critically, the Panel Majority concluded that "proof of a failure to accommodate does not automatically satisfy the terms-and-conditions language"—in other words, "[e]ven after proof of a failure to accommodate, there remains the requirement that the discrimination be ‘in regard to job application procedures, ... [or] other terms, conditions, or privileges of employment.’ That is, the employee still needs to prove this component of an ADA discrimination claim based on a failure to accommodate." Id. at 908 (second alteration and omission in original) (quoting 42 U.S.C. § 12112(a) ). And, because the adverse-employment-action language is simply shorthand for this additional terms-conditions-and-privileges-of-employment requirement, "it is evident" said the Panel Majority, that plaintiffs must establish an adverse employment action even where their ADA claim is "based on failure to make reasonable accommodations." Id. at 911.

This court subsequently agreed to rehear the case en banc, requesting supplemental briefing specifically as to whether the district court erred when it instructed the jury that an adverse employment action is a requisite element of a failure-to-accommodate claim under the ADA. We turn now to that question.¹

II

A

"We review de novo whether, ‘as a whole, the district court's jury instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards.’ " Liberty Mut. Fire Ins. Co. v. Woolman , 913 F.3d 977, 992 (10th Cir. 2019) (quoting Martinez v. Caterpillar, Inc. , 572 F.3d 1129, 1132 (10th Cir. 2009) ); accord Davoll v. Webb , 194 F.3d 1116, 1131 (10th Cir. 1999). The foundational governing law in this case is found in the ADA's text.

42 U.S.C. § 12112(a), entitled "General rule," provides the general, employment-discrimination proscription of Title I of the ADA, stating that

[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a)² ; see PGA Tour, Inc. v. Martin , 532 U.S. 661, 675, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) ("To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III)." (footnotes omitted)).

Subsection 12112(b), entitled "Construction," is inextricably intertwined with § 12112(a) ’s "General rule." Critically, § 12112(b) particularizes and makes concrete this rule by offering in non-comprehensive fashion examples of the kinds of disability discrimination that qualified individuals may be subjected to "in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). (We frequently refer to the latter, quoted language of § 12112(a), in brief, as "the terms-conditions-and-privileges-of-employment language.") As most relevant here, subsect...