Tesone v. Empire Mktg. Strategies, No. 19-1026

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: MATHESON, Circuit Judge.
• Citation: 942 F.3d 979
• Parties: Jonella TESONE, Plaintiff - Appellant, v. EMPIRE MARKETING STRATEGIES, Defendant - Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
• Decision Date: 08 November 2019
• Docket Number: No. 19-1026

942 F.3d 979

Jonella TESONE, Plaintiff - Appellant,
v.
EMPIRE MARKETING STRATEGIES, Defendant - Appellee.

Equal Employment Opportunity Commission, Amicus Curiae.

No. 19-1026

United States Court of Appeals, Tenth Circuit.

FILED November 8, 2019

Joseph A. Whitcomb, (LaQunya L. Baker, with him on the briefs), Whitcomb, Selinsky, McAuliffe, PC., Denver, Colorado, for Plaintiff - Appellant.

John R. Mann, Gordon & Rees LLP, Denver, Colorado, for Defendant - Appellee.

James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, Elizabeth E. Theran, Assistant General Counsel, and Julie L. Gantz, Attorney, Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., filed an amicus curiae brief in support of Appellant.

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

Jonella Tesone claimed that Empire Marketing Strategies ("EMS") discriminated against her under the Americans with Disabilities Act ("ADA") when it terminated her employment. The district court granted summary judgment to EMS.

On appeal, Ms. Tesone alleges the district court erred when it denied her motions to (1) amend the scheduling order to extend the time for her to designate an expert and (2) amend her complaint. We disagree and affirm the denials. She also contends the court erred when it (3) granted summary judgment to EMS. We agree and remand for further consideration. We exercise appellate jurisdiction under 28 U.S.C. § 1291.¹

First, Ms. Tesone filed her motion to amend the scheduling order on November 1, 2018—nine months after the February 2018 expert disclosure deadline, seven months after indicating her intent to file,

942 F.3d 985

and three months after EMS's motion for summary judgment. The district court did not abuse its discretion when it found Ms. Tesone had not shown "good cause" to extend the scheduling order as required under Federal Rule of Civil Procedure 16(b)(4). See Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n , 771 F.3d 1230, 1241 (10th Cir. 2014).

Second, Ms. Tesone filed her motion to amend her complaint on November 7, 2018—nearly ten months after the January 2018 deadline for amending pleadings. The district court did not abuse its discretion when it found Ms. Tesone had not shown "good cause" under Rule 16(b)(4) as to why she should be allowed to amend after the scheduling order deadline.

Third, the district court erred on summary judgment. The court said an expert must be used to prove a disability in discrimination cases brought under the ADA.² It granted summary judgment because Ms. Tesone did not have a medical expert witness to prove she suffered from lower back pain that substantially interfered with her ability to lift. We disagree that the ADA always requires an expert.

I. BACKGROUND

A. Factual Background

In 2012, EMS hired Ms. Tesone as a Product Retail Sales Merchandiser. Her job duties included changing or "resetting" retail displays in grocery stores. When she was hired, Ms. Tesone informed EMS that she had back problems and could not lift more than 15 pounds.³

In October 2016, Ms. Tesone was assigned to complete a reset in Gunnison, Colorado. Because she anticipated the reset would require long hours, she prearranged to stay in Gunnison for an additional night.⁴ She did not seek EMS's approval for this extension, and EMS did not approve the stay.

Shortly after the trip, EMS met with Ms. Tesone to discuss the unapproved October hotel stay and "general performance issues." Aplt. App. at 19; see also id. at 190. During this meeting, Ms. Tesone referred to her "lifting limitation." Id. at 190. EMS requested a doctor's note documenting the limitation. Ms. Tesone did not immediately provide a note. EMS renewed its request at least four times. Four months after the meeting, Ms. Tesone provided a letter from Dr. Brian Manjarres. She had not met Dr. Manjarres or consulted with him about her health before obtaining the note. The letter stated Ms. Tesone "has certain limitations related to muscle weakness" and "chronic lower back pain." Id. at 166. It "recommend[ed] the following accommodations: 1) No lifting over head 2) Can not [sic] lift spatially in front of her more than 15 pounds." Id.

Between December 2016 and February 2017, EMS spoke with Ms. Tesone multiple

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times about various workplace issues, including "her communication with coworkers." Id. at 19-20; see also id. at 191. On February 27, 2017, EMS terminated Ms. Tesone's employment, citing "consistent violations of company policies." Id. at 192.⁵

Ms. Tesone filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). The charging form listed ten categories of discrimination and asked her to "check [the] appropriate box(es)" to indicate what form of discrimination she had experienced. Ms. Tesone checked only the "disability" box and left the "retaliation" box blank. She also provided a statement describing "the particulars." Id. at 434. It read:

I began working for Respondent [EMS] in 2010.^{[6 ]} I have a disability, as defined within the meaning of the relevant statute, of which Respondent was aware. Throughout my employment I had a reasonable accommodation due to my disability, a lifting restriction. During the relevant time period Ms. Kelly Bruce[ ] began working for Respondent in my chain of command. Subsequent to this the terms/conditions of my employment changed. For instance, but not limited to, I was no longer allowed to train employees, I was offered different work, and my accommodation was not honored. Additionally, an expected promotion, to Lead, was denied and given to an employee outside my protected class with less seniority and experience than me. On or about February 28, 2017, I was discharged.

I believe that I have been discriminated against on the basis of a disability in violation of the Americans with Disabilities Act of 1990, as amended.

Id.

In June 2017, the EEOC closed Ms. Tesone's file and notified her of her right to sue.⁷

B. Procedural Background

1. Complaint

On August 31, 2017, Ms. Tesone filed a complaint against EMS and two of its employees in the United States District Court for the District of Colorado. She asserted three claims: (1) disability discrimination under the ADA (against EMS), (2) interference with contract and prospective business advantage (against the EMS employees), and (3) intentional infliction of emotional distress ("IIED") (against the EMS employees).

2. Scheduling Order and Dismissals

The district court's November 21, 2017 scheduling order set deadlines of (1) January 22, 2018, to amend pleadings; (2) May 21, 2018, to complete discovery; and (3) February 5, 2018, to disclose expert witnesses. The court dismissed the IIED claim against both employee defendants and dismissed the tortious interference claim against one employee defendant. The parties then stipulated to dismissal of the

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tortious interference claim against the second employee defendant, leaving only the ADA claim against EMS.

3. Motions for Summary Judgment, to Enlarge Time, and to Amend

The parties began deposing witnesses on March 20, 2018. During depositions, EMS's counsel told Ms. Tesone's attorney that without expert evidence regarding her disability, Ms. Tesone's ADA claim must fail. The next day, Ms. Tesone's attorney emailed EMS's counsel, stating, "I expect to file a motion for the enlargement of time to appoint and disclose experts." Supp. App. at 68.

On July 20, 2018, EMS moved for summary judgment, arguing in part that Ms. Tesone could not establish a prima facie case of discrimination because she "offer[ed] no expert report or other admissible evidence establishing that her impairment caused limitations to perform a major life activity." Aplt. App. at 23. On November 1, 2018, the parties had a settlement conference before a magistrate judge,⁸ who informed Ms. Tesone that she could not prevail without an expert witness. The same day, Ms. Tesone filed a motion for an enlargement of time to designate an expert witness. Six days later, she also filed a motion to amend her complaint to add ADA claims alleging (1) discrimination on the basis of a perceived disability and (2) retaliation.

4. District Court Rulings

At the final pretrial conference on November 8, 2018, EMS's attorney stated that "[t]he motion to amend the complaint ... wreaks [sic] of an attempt to save the case ... at the 11th hour." Id. at 525. The district court responded, "Well, of course, it doesn't wreak of it. ... [I]t is that." Id . The court then denied Ms. Tesone's motion for enlargement of time, reasoning: "I think I'm probably overly generous in extending deadlines ... because I like to protect a plaintiff's rights, but I don't have any choice here. ... I can't find a legal basis to grant [it], so therefore ... [the] motion for extension of time to designate an expert witness, is denied." Id. at 534.⁹

On January 17, 2019, the district court issued an order denying Ms. Tesone's motion to amend. The order briefly explained the...