Punt v. Kelly Servs.

• Decision Date: 06 July 2017
• Docket Number: No. 16-1026,16-1026
• Citation: 862 F.3d 1040
• Parties: Kristin PUNT, Plaintiff–Appellant, v. KELLY SERVICES; GE Controls Solutions, Defendants–Appellees. The National Employment Lawyers Association And The National Disability Rights Network, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

862 F.3d 1040

Kristin PUNT, Plaintiff–Appellant,

v.KELLY SERVICES; GE Controls Solutions, Defendants–Appellees.

The National Employment Lawyers Association And The National Disability Rights Network, Amici Curiae.

No. 16-1026

United States Court of Appeals, Tenth Circuit.

July 6, 2017

Ralph E. Lamar, Arvada, Colorado, for Plaintiff–Appellant.

Rick J. Patterson (Steven M. Potter, with him on the brief), of Potter, DeAgostino, O'Dea & Patterson, Auburn Hills, Michigan, for Defendant–Appellee Kelly Services, Inc.

Austin E. Smith and Steven R. Reid of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Denver, Colorado, on the brief for Defendant–Appellee GE Control Solutions.

Joan M. Bechtold of Sweeney & Bechtold, LLC, Denver, Colorado, filed an amici curiae brief for the National Employment Lawyers Association and the National Disability Rights Network.

Before KELLY, McKAY, and McHUGH, Circuit Judges.

McKAY, Circuit Judge.

This case involves claims brought under the Americans with Disabilities Act, 42 U.S.C. § 2000e et seq. , and the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq ., by a temporary employee whose assignment by a staffing agency to work as the receptionist for another business was terminated after she missed a significant amount of work while being tested for breast cancer

and informed the agency that, due to her cancer, she needed to take a full week plus an additional unknown amount of time off for more tests, appointments, and radiation treatments. The district court granted summary judgment in favor of the staffing agency and the business on both of these claims. The employee now appeals that ruling, as well as the denial of her motion to compel discovery from the temporary-staffing agency.

I.

Defendant GE Controls Solutions is a company that designs and produces hardware, software, and other materials. To meet some of its staffing needs, GE entered into an agreement with Defendant Kelly Services, a company that provides temporary-staffing services, under which Kelly provided and assigned temporary employees to GE as needed. Under the agreement, GE could ask Kelly to remove any of its temporary employees from their assignment at GE for any reason. Kelly also had the right to cancel any employee's assignment on its own initiative.

Plaintiff Kristin Punt was an at-will employee of Kelly. When she initially applied for employment with Kelly, she signed an employment application stating that the duration of any assignment she accepted depended on the needs of Kelly's customer and that it could be canceled at any time by Kelly or the customer. The application also stated that, upon completion of each assignment, she would notify Kelly of her availability for work. She agreed: "I understand I am responsible for maintaining regular contact with Kelly and failure to do so will indicate I have either voluntarily quit or am not actively seeking work." (Appellant's App. at 242.)

After GE's full-time receptionist retired, GE requested that Kelly assign a temporary employee to fill that position. The human-resources director at GE informed Kelly that GE would consider Plaintiff for the receptionist assignment because Plaintiff had previously filled in for the receptionist on short-term assignments.

Kelly assigned Plaintiff to the receptionist position at GE, and she worked there from October 24, 2011, through December 5, 2011. Shortly before she began this assignment, she had had a screening mammogram

which showed suspicious microcalcifications in her right breast, and in November, while working at GE, she had a breast biopsy and was informed she had breast cancer. Plaintiff alleges that she told various GE and Kelly employees about her cancer diagnosis and her family history of breast cancer.

When she began the receptionist assignment at GE, Plaintiff was instructed that she was to work a 40-hour work week, starting at 7:30 a.m. and ending at 4:30 p.m. each day. The "essential functions" of the receptionist job included being "physically present at the lobby/reception desk during business hours" in order to "greet[ ] ... and direct[ ] all visitors, including vendors, clients, job candidates, customers, etc." (Id. at 409.) However, in the six weeks that Plaintiff was assigned to work as a receptionist at GE, Plaintiff never worked a full 40-hour work week. She was absent from work on six occasions, two of which corresponded with holidays, and three of which corresponded with documented medical appointments. Plaintiff's absence on November 29 is unexplained. Plaintiff was also late to work on three occasions: by 1.5 hours on October 24, by 4.5 hours on October 27, and by 3 hours on November 30. The November 30 date allegedly corresponded with an MRI appointment, but she provided no explanation for her tardiness on the other two dates. Plaintiff left work early on three occasions as well: by 30 minutes on October 27, by 1.25 hours on November 2, and by 5 hours on November 22. On November 2, Plaintiff had a follow-up mammogram

appointment, and on November 22 she left work after receiving a call with her biopsy results. Her October 27 early departure is unexplained. When Plaintiff was gone from work, Elise Greenlee, another Kelly temporary employee who was assigned to work as an administrative assistant for the general manager of GE, had to take over Plaintiff's receptionist duties as well as her own responsibilities.

On Monday, December 5, Plaintiff had another MRI appointment, although she did not actually go through with the MRI due to claustrophobia

. At 10:37 a.m. on that day, she emailed Erin Wilgus—the Kelly employee who was the point-person for Plaintiff's temporary assignment to GE—and informed her:

After talking to my husband and doctor it is in my best interest not to come to work this week at all. I like my job at GE very much but I'm concerned that they are not going to be willing to work with me. I have barely missed work and they are already annoyed it sounds.... Getting surgery takes some appointment and tests and it sounds like GE [doesn't] want me to take off anytime. I guess we should both be concerned if this will be a right fit. Let me know what you think. I hope to continue on Monday.

(Id. at 97.) At 12:47 p.m., Ms. Wilgus emailed Plaintiff, saying that she had just left Plaintiff a voicemail and asking Plaintiff to give her a call so they could "talk through this." (Id. at 96.) Plaintiff sent Ms. Wilgus an email saying that she would call Ms. Wilgus after her MRI, but she apparently did not call Ms. Wilgus back. At 5:47 p.m., Ms. Wilgus sent Plaintiff an email, stating: "Please contact me ASAP. I need to let GE know whether you are going to be at work tomorrow." (Id. at 95.)

Plaintiff then sent Ms. Wilgus an email in which she lied about what had actually happened with the MRI and said she would need more time off for tests and for radiation treatments:

The MRI was very scary! It lasted longer than expected. I have so much to take care of this week with tests that I don't know how I can come to work tomorrow .... If taking a week off is out of the question I understand. Elise doesn't have that much work to do according to her and I'm surprised this has become such a problem. This is looking like very early stage breast cancer

that will allow me to come to work and have only five times of radiation.

(Id. )

On or about December 5, GE's general manager and HR director contacted Ms. Wilgus to end Plaintiff's assignment, telling Ms. Wilgus that Plaintiff was not showing up for work and that GE "needed an employee that's going to be able to show up and fulfill the needs of the position." (Id. at 503.) Ms. Wilgus then contacted Plaintiff to inform her that her temporary assignment with GE had been terminated. According to Plaintiff, during the course of this conversation, Ms. Wilgus told Plaintiff that GE's HR director had said she wanted to terminate Plaintiff's assignment "because [she] would be very unreliable having cancer

." (Id. at 233.)

After her assignment with GE was terminated, Plaintiff never contacted Kelly to ask for another assignment, even though she had "practically harassed them for work" in the past. (Id. at 223.) On February 13, 2012, Kelly offered Plaintiff a one-day assignment at a different business. She turned this assignment down because she already had work through a different temporary-staffing agency. After February 2012, Plaintiff never contacted Kelly to tell them she was available and wanted a job assignment, and Kelly did not contact Plaintiff with any additional job offers.

In 2014, Plaintiff filed this lawsuit against both GE and Kelly, raising two claims for relief: (1) a claim of disability discrimination under the ADA, and (2) a claim of genetic information discrimination under the Genetic Information Nondiscrimination Act. During discovery, Plaintiff made a request for Kelly to "provide all documents showing all positions which Defendant Kelly filled for full-time and part-time employment in the Denver metro area including Boulder and Boulder County for positions for which plaintiff would have been qualified to fill from December 5, 2011, to the current date." (Id. at 125.) Kelly objected to this request on the basis that it was overly broad and unduly burdensome, it sought documents and/or materials which were neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and it sought the disclosure of confidential information of individuals who were not parties to the litigation. After unsuccessfully attempting to resolve the dispute with opposing counsel, Plaintiff filed a motion to compel. The magistrate judge denied the motion, holding that the discovery request was "clearly overly broad and unduly burdensome." (Id. at 110.) The district court affirmed the magistrate judge's ruling under the applicable abuse-of-discretion standard, holding that Plaintiff had not met her burden of propounding a reasonable discovery request and...