Ford v. Brennan
| Docket Number | 21-4086 |
| Decision Date | 30 August 2023 |
| Parties | HOWARD O. FORD, Plaintiff - Appellant, v. MEGAN J. BRENNAN, Postmaster General, United States Postal Service, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 2:15-CV-00539-BSJ) (D. Utah)
Before PHILLIPS, MURPHY, and ROSSMAN, Circuit Judges.
Howard Ford was employed as a United States Postal Service ("USPS") carrier in Cottonwood Heights, Utah, for over twenty-five years. Throughout much of his tenure, Ford was approved for leave under the Family and Medical Leave Act ("FMLA") to accommodate multiple health conditions. Ford also received additional workplace accommodations related to his disabilities and prior on-the-job injuries. In 2013, he was assigned new supervisors. Ford asserts his new bosses frequently harassed him regarding his disabilities and associated accommodations. In turn, Ford brought several claims against USPS, including FMLA interference, disability discrimination, failure to accommodate, and retaliation. The district court granted summary judgment to USPS on all claims. We agree with this determination. Ford did not demonstrate he experienced a relevant adverse employment action required to support his FMLA interference, disability discrimination, and retaliation allegations. Further, Ford waived his failure to accommodate claim by not timely exhausting his administrative remedies. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, therefore, this court affirms the district court's judgment.
In 1987, Ford was hired by USPS as a city carrier in Cottonwood Heights, Utah. In 2007, he was hit by a runaway mail gurney and suffered a neck injury. As a result, he experienced enduring physical pain, depression, and anxiety. These symptoms were exacerbated by a second on-the-job neck injury in 2011. In response to these injuries and their lasting impacts, Ford received a permanent accommodation in 2012 limiting his workday to eight hours. Additionally, he negotiated an accommodation to use a small "u-cart" to load his vehicle, rather than a large parcel gurney. During his tenure, Ford also had three approved FMLA cases stemming from chronic kidney stones, sleep apnea, and his 2011 neck injury.
In April 2013, Ford was assigned new supervisors. Heidi Clark became his direct supervisor and Andrea Gunnarson became manager of customer service for the Cottonwood Heights station. Shortly after their appointment, Ford asserts his new bosses began harassing him about his accommodations and FMLA status. In part due to the stress of these interactions, Ford took leave from April 16 to April 30, 2013, including several days of FMLA protected leave. Upon returning to work, Ford claims he continued to be unfairly scrutinized by Clark and Gunnarson. On May 2, Clark issued a letter of warning to Ford for failing to timely deliver an express item. After Ford filed a union grievance, the letter was purged from Ford's record. On June 7, 2013, Clark issued Ford another disciplinary letter for extending his break without authorization and failing to cooperate with a corresponding investigatory interview.
On July 16, 2013, Ford asserts Clark ordered him to use a large parcel gurney to load his truck, contravening his typical workplace restrictions. He attempted to communicate his accommodation to load mail using the smaller u-cart, but Clark insisted he use the gurney. As he completed loading, the gurney hit a joint in the floor and he experienced shooting pain in his neck. Ford reported he had suffered an on-the-job injury and left to see a doctor. He was cleared by his physician to return to work the following day with loading restrictions, but Clark delayed his return for several days due to his requested accommodations.
Upon his return to work on July 24, 2013, Ford alleges his supervisors dismissed the restrictions provided by his doctor and continued to harass him about his disabilities. Nonetheless, he was able to operate with his restrictions for several days without incident. On July 29th, Ford asserts he left work after a panic attack induced by Clark obstructing his ability to file a report about the events of July 16. He did not return. On September 14, 2013, Ford exhausted his FMLA protected leave for the year. From September 15 to October 7, 2013, Ford took unscheduled sick leave to cover his absences. On October 8, he went into leave-without-pay status indefinitely. From July 29, 2013 to July 30, 2014, and again from October 22, 2014 to July 1, 2015, Ford submitted monthly or bi-monthly doctor's notes excusing his absences due to depression and anxiety. Each note expressly indicated Ford was unable to work due to his psychological condition. USPS issued multiple letters of warning to Ford regarding his unscheduled absences during this time, but the letters were later rescinded.
Ford was issued an administrative Notice of Separation on October 7, 2014, 365 days from the start of his leave-without-pay status. After Ford filed a grievance, the notice was rescinded on November 10, 2014. Despite this retraction, one section of Ford's employee file indicated his status as "Terminated" as of June 3, 2015. On October 22, 2014, the Department of Labor officially recognized Ford's July 16 injury and awarded him 45 days of continuation pay. On November 3, 2014, USPS offered Ford a modified job assignment which included loading and equipment use restrictions. Ford did not accept this offer because it did not cure the alleged defects in the work environment contributing to his depression and anxiety. Finally, on April 18, 2015, Ford received disability retirement.
b. Procedural History
Ford first sought Equal Employment Office ("EEO") counseling on September 4, 2013. He filed a formal EEO complaint on October 8, 2013, alleging sex, age, and disability discrimination. After meeting with an EEO officer again on October 24, 2014, he filed a second EEO complaint on December 9, 2014, which included retaliation and failure to accommodate claims. On April 30, 2015, Ford filed a motion to clarify his first EEO complaint as incorporating his failure to accommodate claim. This motion was denied, but he was allowed to file a corresponding motion to amend. Neither the EEO nor the presiding administrative law judge acted on Ford's new motion before he requested a final agency decision and "right to sue" letter on November 1, 2016. This request was granted on December 20, 2016.
Ford filed two complaints in district court, the first on July 29, 2015, and the second on March 10, 2017. Ford's complaints were consolidated for the purposes of this action. Prior to the district court's ruling, Ford conceded summary judgment on his allegations related to age, gender, and retaliatory action occurring after December 2014. His remaining claims included: (a) interference with his use of FMLA leave in violation of 29 U.S.C. § 2615(a)(1); (b) retaliation for his use of FMLA leave in violation of 29 U.S.C. § 2615(a)(2); (c) disability discrimination and failure to accommodate in violation of the Rehabilitation Act of 1973; and (d) retaliation for exercising his rights pursuant to the Rehabilitation Act.
USPS filed a motion for summary judgment on November 14, 2017. On August 27, 2018, the district court granted USPS summary judgment on all claims. The district court concluded Ford had not offered evidence that he suffered an adverse employment action as required to prevail on his FMLA, disability discrimination and retaliation claims. In its analysis, the court determined that, contrary to Ford's arguments, USPS never actually terminated his employment. The district court also dismissed Ford's failure to accommodate claim because (a) USPS properly accommodated him when placed on notice of his disability, and (b) USPS was under no obligation to accommodate Ford's psychological disability when no such reasonable accommodation existed.[1]
We review a district court's grant of summary judgment de novo, applying the same standard as the district court. D. K. v. United Behav. Health, 67 F.4th 1224, 1235 (10th Cir. 2023). In conducting this analysis, this court considers the evidence in the light most favorable to the non-moving party. Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 994 (10th Cir. 2019). Summary judgment is proper if the movant shows there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. Digital Ally, Inc. v. Z3 Tech., LLC, 754 F.3d 802, 810 (10th Cir. 2014). Once the moving party demonstrates a lack of any issues of material fact, the burden shifts to the nonmoving party to offer specific facts showing a genuine issue for trial. Tesone, 942 F.3d at 994.[2] "To defeat a motion for summary judgment, evidence . . . must be based on more than mere speculation, conjecture, or surmise." Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
b. FMLA Interference
"The FMLA guarantees the substantive rights of up to twelve weeks of unpaid leave for eligible employees of covered employers for serious health conditions and reinstatement to the former position or an equivalent one upon return from that leave." Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir. 2006); see also 29 U.S.C. § 2612. The Act forbids an employer to "interfere with, restrain, or deny the exercise of or attempt to exercise" this protected leave. 29 U.S.C § 2615(a)(1). To demonstrate a prima facie claim of FMLA interference, "a plaintiff must establish (1) that he was entitled to FMLA leave, (2) that some adverse action by the employer interfered with his right to take...
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