Selenke v. Medical Imaging of Co.

• Decision Date: 10 May 2001
• Docket Number: No. 99-1141,99-1141
• Citation: 248 F.3d 1249
• Parties: (10th Cir. 2001) ROSE K. SELENKE, Plaintiff-Appellant, v. MEDICAL IMAGING OF COLORADO, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1249

248 F.3d 1249 (10th Cir. 2001)

ROSE K. SELENKE, Plaintiff-Appellant, v. MEDICAL IMAGING OF COLORADO, Defendant-Appellee.

No. 99-1141

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

May 10, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

(D.C. No. 98-WY-409-WD)

[Copyrighted Material Omitted] Hugh S. Pixler, Gregson & Pixler, P.C., Denver, Colorado, for Plaintiff-Appellant.

Christopher M. Leh (Thomas S. Crabb and Mark B. Wiletsky with him on the brief), Caplan and Earnest LLC, Boulder, Colorado, for Defendant-Appellee.

Before KELLY, HENRY, and ALARCON, Circuit Judges.^*

HENRY, Circuit Judge.

Rose Selenke filed this action against Medical Imaging of Colorado (MIC) (her former employer), alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213.¹ Ms. Selenke maintained that MIC failed to reasonably accommodate her sinus disorder, retaliated against her for seeking reasonable accommodation, and then terminated her because of her disability. She also asserted a wrongful discharge claim under Colorado law. The district court granted summary judgment in favor of MIC on all of Ms. Selenke's claims, reasoning that she failed to present sufficient evidence that she suffered from disabilities protected by the ADA or that MIC violated Colorado public policy by terminating her employment.

Mr. Selenke now challenges that ruling. She also argues that, even if the district court properly concluded that she did not suffer from ADA-protected disabilities, that conclusion did not warrant summary judgment on her ADA retaliation claim or her wrongful discharge claim under Colorado law.

For the reasons set forth below, we assume, without deciding, that Ms. Selenke presented sufficient evidence that she suffered from an ADA-protected disability. Nevertheless, even assuming such a disability, the record does not support Ms. Selenke's contentions that MIC failed to reasonably accommodate her, terminated her employment because of her disability, or retaliated against her because she engaged in activities protected by the ADA and Colorado law. We therefore affirm the district court's decision.

I. BACKGROUND

Ms. Selenke worked for MIC as a licensed radiology technician and mammographer from 1990 until 1997. Initially, MIC assigned her to its mobile unit, where she administered mammograms at employers' offices. In 1993, Ms. Selenke requested a transfer, and MIC granted the request, assigning her to its 19th Street office in Golden, Colorado. Ms. Selenke worked there until September 1996, when the company moved the office to Jackson Street. She remained at the Jackson Street office until MIC discharged her in April 1997.

While employed at MIC, Ms. Selenke scheduled patient appointments, administered mammograms, took patient histories, communicated with radiologists regarding test results, and worked with office staff to complete examination reports. Each day, she spent about an hour and a half in the darkroom developing mammography films. From 1990 until early 1996, Lynn Wright was Ms. Selenke's direct supervisor. After that, Karla Schatzer supervised her, and Ms. Wright supervised Ms. Schatzer.

As a teenager, Ms. Selenke began to experience sinus headaches. Doctors eventually diagnosed her as suffering from chronic sinusitis, which caused congestion and infections, as well as recurring headaches. They also discovered a structural defect in her sinuses. During the period from 1990 to 1993, Ms. Selenke underwent approximately ten endoscopic surgeries in order to improve her condition.

In the fall of 1995, Ms. Selenke complained to Ms. Wright about chemical fumes in the darkroom. Earlier that year, a Food and Drug Administration (FDA) inspection indicated that foreign material was interfering with the reading of mammograms. In response, MIC replaced the darkroom ceiling. Ms. Selenke contended that the new ceiling covered a fresh air vent, causing fumes to remain in the darkroom, and a co-worker expressed the same concerns. When Ms. Wright asked the contractor who had performed the work, he told her that there had never been a fresh air vent in the darkroom.

Ms Selenke continued to complain about the fumes. At the recommendation of her physician, she began wearing a mask when she worked in the darkroom. In January 1996, Ms. Wright consulted an industrial hygienist. His inspection confirmed that the darkroom had inadequate ventilation. Within a week of receiving the hygienist's report, MIC installed a vent.

In April 1996, a dental practice group that shared the 19th Street building with MIC commissioned a study of its indoor air quality. The study concluded that, although there was an odor of acetic acid in the darkroom, it measured at levels below those allowed by the Occupational Health and Safety Administration and did not constitute a safety threat. The air-quality study recommended improvements to the ventilation system. However, around the time that the study was completed, MIC lost its lease on the building. Accordingly, it declined to implement the study's recommendations.

In planning the move to the new facility on Jackson Street, MIC supervisors asked Ms. Selenke for design recommendations. She requested certain ventilation procedures for the darkroom. However, when she visited the new office during construction, she noticed that ventilation was lacking. Ms. Selenke then informed Ms. Wright of the problem. In early September 1996, MIC installed a fresh air vent and an exhaust vent in the darkroom. However, after the vents were installed, Ms. Selenke observed that the darkroom was still not receiving fresh air. After she informed the building manager, he determined that the fresh air vent had been closed and opened it.

Ms. Selenke continued to complain about chemical odors and insufficient ventilation. A co-worker made the same complaints and took a leave of absence because of them. In response, MCI hired a consulting firm to evaluate the darkroom. In early November 1996, the consulting firm conducted airflow testing and then made several recommendations to improve ventilation. MIC followed the recommendations, installing larger fresh air and exhaust vents, a more powerful motor to remove the fumes, and an additional vent near the area where the chemical odor was strongest. In deposition testimony, Ms. Selenke acknowledged that, at that point, MIC had made all the changes in the ventilation system that she had requested and that those changes were "very, very adequate." Aplt's App. vol. I, at 188.

Nevertheless, Ms. Selenke's sinus condition continued to bother her. In March 1997, her physician suggested testing MIC's Jackson Street facility for molds and spores. Ms. Selenke informed Ms. Wright, who agreed to the testing.²

On several occasions during the period from 1995 until April 1997, MIC took disciplinary action against Ms. Selenke. In November 1995, Ms. Wright and Ms. Schatzer placed her on probation for three months, citing errors in her work product and her delay in preparing accreditation documents for MIC. In February 1997 Ms. Wright and Ms. Schatzer presented Ms. Selenke with a written reprimand for making an inappropriate sexual comment to a co-worker. In early April 1997, Ms. Wright and another MIC supervisor met with Ms. Selenke after she became involved in an argument with a receptionist in the waiting room (in front of co-workers and a patient). They told her to watch her temper and requested that she be more tolerant of mistakes by new office staff.

During her tenure with MIC, Ms. Selenke experienced other difficulties with co-workers that were not subject to specific disciplinary action. In her October 1996 evaluation, Ms. Shatzer observed that Ms. Selenke was "[s]ometimes tactless and unapproachable in dealing with co-workers" and "[o]ccasionally "fail[ed] to respond to direction or suggestions." Aplt's App. vol. I, at 185. She added that her communications with others were sometimes argumentative and negative and that Ms. Selenke needed to develop a more positive attitude toward work and her fellow employees. In December 1996, Ms. Selenke became involved in an argument with a part-time receptionist. The argument could be heard by a patient in the waiting area, and the receptionist testified that she felt degraded and humiliated. In February 1997, the receptionist resigned, citing conflicts with Ms. Selenke.

In mid-April, in front of a co-worker and a patient, Ms. Selenke criticized a receptionist for failing to order a chart. The co-worker later informed the receptionist that she found Ms. Selenke's conduct unprofessional and told her that, if the receptionist did not report it, the co-worker would do so. The receptionist then informed Ms. Wright about Ms. Selenke's outburst.

After receiving this information, Ms. Wright and Ms. Schatzer decided to terminate Ms. Selenke's employment. On April 25, 1997, they met with Ms. Selenke and informed her of the decision. Ms. Selenke refused MIC's offer of severance pay, and her employment ended on that day.

Ms. Selenke filed the instant action in February 1998. As noted above, she alleged that MIC violated the ADA by terminating her because of her disability, by failing to reasonably accommodate her, and by retaliating against her for engaging in conduct protected by the ADA. She also alleged that MIC's termination of her employment violated the public policy set forth in the Colorado Workermen's Compensation Act, Colo. Rev. Stat. 8-40-101 et seq.

B. THE DISTRICT COURT'S RULING

In granting summary judgment for MIC, the district court applied one of the ADA's definitions of a disability: "a physical or mental impairment that substantially limits one or more of [an individual's] major life activities." 42 U.S.C. 12102(2). Noting that Ms. Selenke alleged that her sinusitus impaired the major life activities of working and breathing, the court concluded the evidence presented by...