McKenzie v. Dovala, 99-8084

• Decision Date: 13 March 2001
• Docket Number: No. 99-8084,99-8084
• Citation: 242 F.3d 967
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: (10th Cir. 2001) LORRAINE "JADE" MCKENZIE, PLAINTIFF - APPELLANT, v. DAVID DOVALA, IN HIS OFFICIAL CAPACITY AS SHERIFF OF NATRONA COUNTY, DEFENDANT - APPELLEE

Page 967

242 F.3d 967 (10th Cir. 2001)

LORRAINE "JADE" MCKENZIE, PLAINTIFF - APPELLANT, v. DAVID DOVALA, IN HIS OFFICIAL CAPACITY AS SHERIFF OF NATRONA COUNTY, DEFENDANT - APPELLEE.

No. 99-8084

U.S. Court of Appeals, Tenth Circuit

March 13, 2001

Appeal from the United States District Court for the District of Wyoming (D.C. No. 98-CV-289-D)

Bernard Q. Phelan, Cheyenne, Wyoming, for the Plaintiff-Appellant.

Peter J. Young (Judith A.W. Studer with him on the brief), Schwartz, Bon, Walker & Studer, Casper, Wyoming, for the Defendant-Appellee.

Before Baldock, Politz ^* and Lucero, Circuit Judges.

Lucero, Circuit Judge

Plaintiff Lorraine "Jade" McKenzie sued her former employer, the Natrona County Sheriff's Office, for an alleged violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213. The United States District Court for the District of Wyoming granted summary judgment in favor of defendant, and plaintiff appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude McKenzie made out a prima facie case of discrimination under the ADA and therefore reverse.

I.

McKenzie worked as a deputy sheriff with the Natrona County Sheriff's Office in Casper, Wyoming for ten years. In her decade of service, she reached the rank of sergeant within the organization, performing the duties of shift supervisor, and never had a negative performance evaluation. Beginning in early 1996, McKenzie suffered from a variety of psychological afflictions, including post-traumatic stress disorder related to childhood sexual abuse by her father. ¹ As her condition worsened, she began to miss work frequently. Then, on August 15, 1996, McKenzie fired six rounds from her revolver into the ground at her father's grave; the next day, Sheriff David Dovala placed her on administrative leave. In the weeks that followed McKenzie suffered serious self-inflicted wounds and drug overdoses requiring several hospital visits. After being told that her leave pay was exhausted, McKenzie resigned voluntarily in October 1996 to seek psychological care.

In late November of the same year, after a course of medication and therapy, McKenzie was released by her supervising physician, Dr. Arlene Viray. After Dr. Viray sent the Sheriff a letter stating McKenzie's condition had improved sufficiently that she could return to work, McKenzie immediately sought re-employment at the Sheriff's Office and was assured that her application would be considered if openings became available. Despite her ten years of experience and her fine record as a patrol officer, McKenzie's application for employment was rejected at all the agencies to which she applied throughout Wyoming and Nevada. Unable to find work in law enforcement anywhere in the area, she returned to the Sheriff's Office in October 1997 and asked to be considered not only for a position as a patrol officer, but also for any job in the department. Dovala told McKenzie that he was unwilling to consider her application and admitted that the Office was reluctant to hire her because of "liability" concerns and fear of public uneasiness related to her past illness. (Appellant's App. at 187.) According to Dovala, members of his staff had told him that "based upon what they knew about what had happened in the previous year," McKenzie "would be better off in some other field." (Id. at 97.)

Dovala admitted to McKenzie that he had passed over her application when positions became available in the department between November 1996 and October 1997. He acknowledged that he eliminated McKenzie from consideration without ordering a standard psychological evaluation as provided for in Wyoming's Peace Officer Standards and Training ("POST") law, Wyo. Stat. Ann. § 9-1-704(b)(vii). McKenzie later learned that shortly after her resignation, Undersheriff Mark Benton ² contacted the POST Commission to request that it revoke her certification as a peace officer. ³

In this suit alleging discrimination prohibited by the ADA, McKenzie claims that Dovala refused to rehire her because he "regarded" her as disabled under 42 U.S.C. § 12102(2)(C) or because of her "record" of disability under § 12102(2)(B). ⁴ Concluding that McKenzie had not produced sufficient evidence to allow a jury to find she was "disabled" under either of those provisions, the district court granted defendant's motion for summary judgment. McKenzie v. Dovala, No. 98-CV-289-D, slip order at 1 (D. Wyo. Aug. 16, 1999).

II.

"We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.) (citation omitted), cert. denied, 528 U.S. 815 (1999). Summary judgment is appropriate only "if 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 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." Simms, 165 F.3d at 1326 (citation omitted). The non-movant is given "wide berth to prove a factual controversy exists." Jeffries v. Kansas, 147 F.3d 1220, 1228 (10th Cir. 1998) (quoting Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995)).

III.

The ADA provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . the hiring . . . of employees." 42 U.S.C. § 12112(a). ⁵ A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8). To establish a prima facie case of discrimination under the ADA, a plaintiff must show "(1) that [s]he is disabled within the meaning of the ADA; (2) that [s]he is qualified-with or without reasonable accommodation; and (3) that [s]he was discriminated against because of [her] disability." Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir. 1998) (internal quotation omitted); see also MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1443 (10th Cir. 1996). The district court granted summary judgment for the defendant because it concluded McKenzie could not show she was "disabled" so as to satisfy the first prong of the test. McKenzie v. Dovala, No. 98-CV-289, tr. oral ruling at 10 (D. Wyo. Aug. 16, 1999).

A "disability" is defined by the ADA as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999). The ADA's implementing regulations, promulgated by the Equal Employment Opportunity Commission ("EEOC"), clarify what constitutes an "impairment that substantially limits . . . major life activities" under 42 U.S.C. § 12102(2)(A). Those regulations provide that "[w]ith respect to the major life activity of working . . . [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i).

A. Disability

The district court concluded there was no genuine issue for trial as to whether McKenzie has a "disability" as defined in the ADA, 42 U.S.C. § 12102(2). McKenzie does not allege she had an actual limiting impairment at the time she sought re-employment. To the contrary, she testified that she was healthy and had obtained permission to resume work. Instead, McKenzie contends she suffered discrimination because she was "regarded as" disabled or, alternatively, because of a "record of" disability. Id. § 12102(2)(C), (B).

1.

McKenzie argues that she submitted evidence creating a genuine issue of material fact as to whether the defendant "regarded" her as disabled. See id. § 12102(2)(C). Under this theory of disability, she sought to establish that she "[h]as none of the impairments defined in . . . this section but is treated by a covered entity as having a substantially limiting impairment," 29 C.F.R. § 1630.2(l)(3), arguing on summary judgment that she was "treated" by the Sheriff's Office as significantly restricted in her ability to perform the class of jobs under the broad heading of law enforcement.

The district court had before it abundant evidence supporting McKenzie's claim that she was regarded as disabled. Soon after McKenzie's resignation, Benton sought to have her decertified by the POST Commission because, as he explained, he lacked "trust" and "confidence" in her and "didn't feel that [she] should be a law enforcement officer any longer." (Appellant's App. at 115.) Because certification as a peace officer requires that an individual "[b]e free of any physical, emotional or mental conditions which might adversely affect [her] performance of duty," Wyo. Stat. Ann. § 9-1-704(b)(vii), a reasonable jury could infer from Benton's seeking decertification that Benton believed McKenzie had an "emotional or mental condition[]" that impaired her performance as a peace officer.

The testimony of Dovala and Benton suggests that at the time of McKenzie's reapplication, defendant treated her as substantially limited in her ability to work in law enforcement due to the psychological problems she had suffered in 1996. Dovala testified that when he met with McKenzie in 1997,

I had concerns for her mainly, as a police officer, we often have to testify in court. And what generally happens, or happens frequently, is the...