Zwygart v. Bd. of County Com'Rs of Jefferson Cnty.

• Decision Date: 24 April 2007
• Docket Number: No. 06-3084.,06-3084.
• Citation: 483 F.3d 1086
• Parties: Lynn R. ZWYGART, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, KANSAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

483 F.3d 1086

Lynn R. ZWYGART, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, KANSAS, Defendant-Appellee.

No. 06-3084.

United States Court of Appeals, Tenth Circuit.

April 24, 2007.

Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, KS, for Plaintiff-Appellant.

Carolyn L. Matthews (James D. Oliver, with her on the brief), Foulston Siefkin LLP, Wichita, KS, for Defendant-Appellee.

Before KELLY, McCONNELL, and HOLMES, Circuit Judges.

McCONNELL, Circuit Judge.

In 2002, the Jefferson County Road Department fired Lynn Zwygart from his position as a truck driver after twelve years of attendance-related problems. He was subsequently reinstated after signing a contract that expressly acknowledged the County's right to fire him for taking unpaid leave. In 2003, the County exercised its contractual right and fired Mr. Zwygart because he failed to accrue sufficient paid leave, beyond the twelve weeks of leave provided by the Family and Medical Leave Act, to excuse his absence following an open-heart surgery. Mr. Zwygart sued, alleging that the County's actions violated his rights under the Americans with Disabilities Act and the Due Process Clause. The district court granted the County's motion for summary judgment on both claims. We agree that Mr. Zwygart has not demonstrated a triable issue of fact on either claim and therefore affirm the district court's judgment.

I.

The Jefferson County Road Department hired Mr. Zwygart as a truck driver in 1986. After four years of apparently satisfactory performance, he began displaying attendance problems: in 1990, he used 178 hours of leave without pay; in 1996, he received a written warning for taking 172 hours of leave without pay and 91 hours of sick leave "under questionable circumstances"; and in 1997, he received a second written warning after taking 102 hours of leave without pay. App. 42.

Mr. Zwygart did not alter his behavior in response to the written warnings. In 2000, he was put on probation and later suspended for not providing doctor's notes to account for his time off. In June 2000, the County told Mr. Zwygart that he had failed to meet conditions imposed in 1997 for his continued employment, including accumulating five days of sick leave and not taking leave without pay. On October 9, 2000, Zwygart secured his supervisor's written acknowledgment that he had accumulated the required amount of sick leave; within five weeks of doing so, however, he had used it all.

In September 2001, Mr. Zwygart had open heart surgery. He exhausted his annual statutory allotment of Family and Medical Leave Act leave while recuperating before returning to work full time in December 2001.

Mr. Zwygart's first post-surgery annual performance review occurred in July 2002. It culminated in this July 17, 2002, termination letter from his supervisor:

I have reviewed your work performance evaluations and performance history with Jefferson County Road Department and have found it to be below satisfactory.

As you know from our prior communications, the failure to improve your performance would result in termination from employment. Your performance record this year falls far short of the improvement necessary for you to be retained.

Consequently, this letter is to inform you that your employment with Jefferson County has been terminated as of today.

App. 44.

Mr. Zwygart contested this termination by filing a grievance as outlined in the County's employee handbook. The grievance procedure requires department heads to respond to employee grievances "within three . . . working days" and "sincere[ly] attempt . . . to resolve any grievance at this initial step." Id. at 64. The mechanism worked; eight days after he filed the grievance, Mr. Zwygart was reinstated after signing—while represented by counsel—a contract with the County that made his continued employment contingent on these conditions: "1. All use of sick leave will require a doctor slip. 2. For no reason will leave without pay be granted. 3. Any violation of these conditions will result in immediate termination." Id. at 46.

The reinstatement contract, like the written warnings years earlier, did not have much effect on Mr. Zwygart's actions. In February 2003, Zwygart's supervisor sent him another letter, which states in part:

Six months ago the County Commission and myself discussed the problem with your work attendance.

At that time your work attendance was unsatisfactory and as a condition of employment you were instructed to do a better job of managing your time off from work. As of today you are out of vacation and sick leave. You've also used your discretionary day. The only paid time off you've accrued is 2 1/4 hours of comp-time.

It's clear that you do not intend to accumulate leave to prevent time off due to unforeseen emergencies or medical needs. This would cause you to take leave without pay, which I will not grant. You have been warned that any use of leave without pay will result in termination.

This letter is to notify you that I am placing you on probation for the next six (6) months. During this time you will be required to accumulate five (5) days of paid leave. . . .

Appellee's Supp.App. 76.

In May 2003, three months after receiving this letter, Mr. Zwygart was diagnosed with a bacterial infection related to the prosthetic heart valve he had received in his 2001 surgery. On May 19, his doctor provided a "Certification for Work" stating that Mr. Zwygart "has been under my care from 05/12/2003 to present" and "should be off work until further notice." App. 47. Shortly thereafter Mr. Zwygart began a long-term intravenous antibiotics regimen that continued until September 3, 2003, when he underwent a second open heart surgery to repair a leak around his prosthetic valve. His primary care physician cleared him to return to work on November 28, 2003.

After receiving the May 19 work release from Mr. Zwygart's doctor, the County granted Zwygart twelve weeks of FMLA leave. When that leave expired, Zwygart used his accumulated sick leave and vacation leave, as well as sick leave other employees had donated to him. Combined, these sources allowed Mr. Zwygart to remain on approved leave through September 15, 2003—well short of his November 28 return-to-work date.

Beginning September 15, 2003, the County's records list Mr. Zwygart's absences as leave "without pay." App. 56-57. The County classified his absences as such until Mr. Zwygart was fired on October 30, 2003, by this letter from the County engineer:

I regret having to write this letter to you. However, in my capacity with the Jefferson County Road and Bridge Department, I must notify you that you are no longer employed with the County.

As you know, you have long exhausted all sick, vacation and other time, which you have used since the onset of your medical condition. Additionally, the County has provided you more than the 12 weeks of unpaid medical leave required by the County's Family and Medical Leave Policy. Everyone was hopeful that your condition would improve and that you could return to your position. Unfortunately, that has not occurred and the County can no longer hold your position for you. . . .

Id. at 52.

As he did two years earlier, Mr. Zwygart filed a grievance contesting his termination. This time, however, he received no response from his supervisor, so he forwarded his complaint to the Board of County Commissioners as the grievance policy instructs.

The Board appointed a committee to investigate Mr. Zwygart's grievance. It held a hearing on December 1, 2003, where Mr. Zwygart testified while represented by counsel that his health was good and that he could return to work as a truck driver. The committee took other evidence, including the November 28 letter from Mr. Zwygart's primary care physician. After the hearing, Mr. Zwygart submitted a note from his cardiologist dated December 3, 2003, that affirmed Mr. Zwygart's capacity to return to work without restriction.

After reviewing the evidence, the committee issued a report on December 5 recommending that the Commission uphold Mr. Zwygart's termination for six different reasons. Three days later, the Commission adopted the committee's recommendation and unanimously sustained Mr. Zwygart's termination.

Mr. Zwygart then sued the County for wrongful discharge and failure to accommodate in violation of the ADA, and for depriving him of a property interest in his continued employment without due process in violation of the Fourteenth Amendment. The County moved for summary judgment on all of Mr. Zwygart's claims. The district court granted the County's motion, holding that Mr. Zwygart was not disabled within the meaning of the ADA and that he failed to establish he had a protected property interest in his employment. Mr. Zwygart timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

II.

A.

We review de novo the district court's grant of summary judgment. Adair Group, Inc. v. St. Paul Fire & Marine Ins. Co., 477 F.3d 1186, 1187 (10th Cir.2007). "Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004). A genuine issue of material fact exists when "the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

B.

Mr. Zwygart first appeals from the district court's grant of summary judgment on his ADA claim. A prima facie case of ADA discrimination consists of three elements: the plaintiff (1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired;...