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Date: 09-05-2021

Case Style:

JOHN W. PROCTOR v. UNITED PARCEL SERVICE

Case Number: 06-3115

Judge: Deanell Reece Tacha

Court: UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Plaintiff's Attorney:


Denver, CO – ADA Lawyer Directory


Defendant's Attorney: Daniel K. O’Toole, Armstrong Teasdale LLP

Description:

Denver, CO – Disability Discrimination lawyer represented Plaintiff - Appellant, with a retaliation claim for filing administrative charges of disability discrimination charge.



Mr. Proctor was employed by UPS as a package car driver, a position that
requires an employee to lift, lower, leverage, and manipulate packages weighing
up to seventy pounds and to work extended hours when necessary. In February
1998, he underwent surgery on his wrist for a job-related injury and eventually
returned to work. In October 1999, he sustained a job-related injury to his back,
after which he was examined by Dr. Fevurly, UPS’s doctor, who released him to
return to work with no restrictions on November 8, 1999. One week later, he
suffered another work-related injury to his back. Mr. Proctor pursued workers’
compensation claims based on his injuries, filing the latest of these claims in
November 1999.
The following month, in December 1999, Mr. Proctor returned to UPS for a
brief period after Dr. Fevurly released him to return to work with a lifting
restriction of thirty pounds. His last day working at UPS was December 24, 1999.
From January 2000 to July 2000, Mr. Proctor was examined by Dr. Fevurly
several times. In July 2000, Dr. Fevurly concluded that he had reached
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“maximum medical improvement” and imposed a permanent fifty-pound lifting
restriction.
According to Mr. Proctor, he was subject to medical restrictions that
prevented him from performing his job duties until January 2002. During this
time, Mr. Proctor continued to be treated by his own physicians in addition to
seeing Dr. Fevurly. His back doctor, Dr. Prostic, released him to return to work
with no restrictions on February 1, 2002, and his wrist doctor, Dr. Ketchum,
issued a full release on April 3, 2002. When UPS did not allow Mr. Proctor to
return to work despite his doctors’ releases, he filed a grievance against UPS for
violating the collective bargaining agreement (CBA) between UPS and Mr.
Proctor’s union, the International Brotherhood of Teamsters, Local Union No. 696
(Union). Under the CBA, after an employee presents UPS with a doctor’s returnto-work slip, the company doctor must examine the employee within three
working days. After Mr. Proctor filed the grievance, the company doctor, Dr.
Fevurly, examined Mr. Proctor and did not release him to return to work,
concluding that his work status was “to be determined.”
Under the CBA, when UPS’s doctor (i.e., Dr. Fevurly) and an employee’s
doctor disagree, UPS and the Union must agree on a third doctor whose decision
is “final and binding” on the employer, the Union, and the employee. Pursuant to
this provision of the CBA, on April 30, 2002, Dr. Brown, the doctor selected by
UPS and the Union, examined Mr. Proctor and imposed a lifting restriction of
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forty pounds. In addition, in his medical evaluation, Dr. Brown specifically
stated: “I do not recommend that he return to package car driving at United Parcel
Service.” Following Dr. Brown’s evaluation, UPS continued to deny Mr.
Proctor’s requests to return to work.
A few months later, in July 2002, Mr. Proctor requested an accommodation
under the ADA. In August 2002, UPS asked Dr. Fevurly to clarify his opinion
regarding Mr. Proctor’s ability to perform the essential functions of a package car
driver. In response, Dr. Fevurly stated that Mr. Proctor is not qualified to
perform the essential functions of his job, including the frequent lifting of seventy
pounds as specified in the written description of the job’s essential functions. In
March 2003, UPS notified Mr. Proctor by letter of its decision to deny his request
for an accommodation, stating: “[B]ased upon the medical information that we
have received, we are unable to conclude that you are eligible for a reasonable
accommodation pursuant to the Americans with Disabilities Act.” The letter also
directed Mr. Proctor to call the district workforce planning manager with any
questions “concerning [his] entitlement to benefits or [his] employment status at
this time.”
A few days later, on March 18, Mr. Proctor was examined by Dr. Poppa, a
doctor retained by UPS’s insurance carrier to provide an independent medical
evaluation in connection with Mr. Proctor’s workers’ compensation case. In his
evaluation, Dr. Poppa noted that Mr. Proctor had reached maximum medical
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improvement with respect to all work-related injuries and was therefore able to
return to work with restrictions, including “occasional lifting from floor to
knuckle of 70 pounds; occasional lifting of knuckle to shoulder height at 55
pounds; occasional lifting from shoulder to overhead of 45 pounds; [and]
occasional carrying 70 pounds at 50 feet.”
That same month, in March 2003, Mr. Proctor filed an administrative
charge with the Office of Federal Contract Compliance Program (OFCCP),
alleging disability discrimination for UPS’s failure to accommodate him and
return him to work. The following May, he filed a similar charge with the Equal
Employment Opportunity Commission (EEOC), and in September 2003, he filed a
charge with the Kansas Human Rights Commission (KHRC).
In June 2003, an administrative law judge awarded Mr. Proctor benefits on
his workers’ compensation claims, which UPS appealed to the Appeals Board for
the Kansas Division of Workers Compensation. In July, Mr. Proctor attended the
last local hearing regarding his grievance against UPS for not returning him to
work. During the hearing, Mr. Proctor’s union representative telephoned Monica
Sloan, a district occupational health manager for UPS, to check on the status of
settlement negotiations concerning Mr. Proctor’s workers’ compensation claims
and to ask whether UPS was going to permit Mr. Proctor to return to work.
According to Mr. Proctor, Ms. Sloan responded: “[W]e’re going to pay him a
work comp settlement and as far as I’m concerned he can go eat shit and die.”
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By December 2003, all three administrative agencies (the OFCCP, EEOC,
and KHRC) had issued findings of no probable cause on Mr. Proctor’s charges of
disability discrimination, as well as right-to-sue letters. Mr. Proctor did not,
however, file suit based on these letters. In addition, on December 31, 2003, the
Appeals Board for the Kansas Division of Workers Compensation issued its
decision, resolving UPS’s appeal of Mr. Proctor’s benefits award.
On January 14, 2004, Ms. Sloan notified Mr. Proctor’s union representative
by letter that UPS had closed all Mr. Proctor’s workers’ compensation claims and
that Mr. Proctor would be separated from employment with UPS as of January 14,
2004. This letter is the only documentation of Mr. Proctor’s termination in the
record. According to Ms. Sloan’s testimony, the termination letter resulted from
UPS’s policy and practice of terminating an employee who has not returned to
work once the employee’s workers’ compensation claims are resolved.
The following May, Mr. Proctor filed a questionnaire with the EEOC,
which the agency treated as a second charge of discrimination. On May 20, 2004,
the EEOC issued a right-to-sue letter, and on August 20, 2004, Mr. Proctor filed
suit against UPS in federal district court, asserting claims of discrimination and
retaliatory discharge in violation of federal and state law. Although he alleged
that UPS violated federal and state law in failing to grant his request for a
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Specifically, Mr. Proctor alleged that UPS violated both the ADA and the 1
Kansas Act Against Discrimination, Kan. Stat. Ann. § 44-1001 et seq., when it
denied his request for a reasonable accommodation for his disability. The District
Court entered summary judgment in favor of UPS on both claims.
UPS also argues that Mr. Proctor’s claims are “preempted” by § 301 of the 2
Labor and Management Relations Act, 29 U.S.C. § 185, because they involve
interpretation of the CBA. But Mr. Proctor’s ADA claim is clearly not preempted
by § 301 because one federal statute cannot preempt another and UPS does not
argue that § 301 repeals provisions of the ADA by implication. See J.E.M. AG
Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 141–42 (2001)
(discussing standard for implied repeal of one federal statute by another). Mr.
Proctor is therefore entitled to assert his federal statutory right under the ADA,
provided the claim is actually based on the ADA. See Wright v. Universal
Maritime Serv. Corp., 525 U.S. 70, 79 (1998). Mr. Proctor does not challenge
UPS’s interpretation of CBA procedures for determining when an employee may
not return to work; instead, he argues that UPS’s reliance on the CBA is a pretext
for retaliation. His cause of action therefore arises under the ADA, not the CBA.
Moreover, because we need not interpret the CBA, Mr. Proctor’s state law claim
is not preempted. See Garley v. Sandia Corp., 236 F.3d 1200, 1209 (10th Cir.
2001) (noting that § 301 preempts state law claims when the court must interpret
the CBA).
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reasonable accommodation for his disability, the only claims on appeal are those 1
involving his termination. He asserts that UPS violated the ADA by terminating
him in retaliation for filing administrative charges of disability discrimination and
that UPS violated Kansas law by terminating him in retaliation for filing workers’
compensation claims. The District Court entered summary judgment in favor of
UPS on both claims, finding that Mr. Proctor had failed to raise a genuine issue of
material fact with respect to the merits of either claim. The court also indicated
that Mr. Proctor’s ADA claim could be dismissed as untimely because he failed to
file a timely administrative charge challenging UPS’s unlawful retaliation. For 2
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the reasons specified below, we affirm the District Court’s entry of summary
judgment in UPS’s favor on both claims.
II. DISCUSSION
We review the grant of a summary judgment motion de novo, applying the
same standards as the district court. Stover v. Martinez, 382 F.3d 1064, 1070
(10th Cir. 2004). In reviewing the record, we view all evidence and draw
reasonable inferences therefrom in the light most favorable to the nonmoving
party. Id. We will affirm a district court’s grant of summary judgment unless the
evidence in the record demonstrates a genuine issue of material fact. Id.; see also
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006) (“An
issue of fact is genuine if the evidence allows a reasonable jury to resolve the
issue either way and is material when it is essential to the proper disposition of
the claim.” (quotations omitted)). We may affirm the district court’s decision
“for any reason supported by the record.” Stover, 382 F.3d at 1070 (quotation
omitted).
A. Timeliness of Retaliation Claim under the ADA
For Mr. Proctor’s retaliation claim under the ADA to be timely, he must
have filed an administrative charge within 300 days of the challenged
employment action and have filed suit in federal court within ninety days of
receiving the agency’s right-to-sue letter. See 42 U.S.C. § 12117(a)
(incorporating Title VII’s enforcement provisions, including administrative filing
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Mr. Proctor had 300 days, rather than 180 days, under the statute because 3
Kansas is a “deferral state,” that is, a state with an agency empowered to
investigate employment discrimination, Kan. Stat. Ann. §§ 44-1003, -1004. See
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1183 n.1 (10th Cir. 2003).
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requirements under 42 U.S.C. § 2000e-5(e)(1), (f)(1)); see also Haynes, 456 F.3d 3
at 1222 (noting a plaintiff must file an administrative charge within 300 days of
discriminatory action before filing a civil suit under the ADA). In general, “a
cause of action accrues ‘on the date the employee is notified of an adverse
employment decision by the employer.’” Haynes, 456 F.3d at 1222 (quoting
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1187 (10th Cir. 2003)). An
employee receives notice of an “adverse employment decision when a particular
event or decision is announced by the employer.” Hulsey v. Kmart, Inc., 43 F.3d
555, 557 (10th Cir. 1994).
The District Court concluded that UPS notified Mr. Proctor of its decision
not to return him to work by March 2003. By this time, Mr. Proctor had notice of
Dr. Brown’s final and binding decision recommending he not return to work as a
package car driver and of UPS’s decision to deny his request for an
accommodation. Although Mr. Proctor filed administrative charges in March
2003 alleging disability discrimination based on UPS’s failure to accommodate
him, he did not file a civil suit on this basis after receiving right-to-sue letters.
Moreover, because the District Court found that Mr. Proctor had notice by March
2003 that he would not be returned to work, it found the administrative charge
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filed in May 2004 to be untimely and concluded that Mr. Proctor’s civil suit based
on this charge may be dismissed.
To determine whether Mr. Proctor’s ADA claim should be dismissed as
untimely, we must “identify precisely the ‘unlawful employment practice’ of
which he complains.” Delaware State College v. Ricks, 449 U.S. 250, 257
(1980). Although Mr. Proctor purports to challenge his termination, announced in
the January 14, 2004 letter, UPS argues that he had previous notice that he would
not be returned to work based on Dr. Brown’s final and binding decision under
the CBA and the company’s determination that he was not entitled to an
accommodation. Citing the Supreme Court’s decision in Ricks, UPS characterizes
Mr. Proctor’s termination in 2004 as “a delayed, but inevitable, consequence” of
these earlier decisions. Id. at 257–58. In Ricks, the Supreme Court held that the
limitations period for filing an administrative complaint began to run when a
professor was denied tenure, rather than when his one-year terminal contract
ended, because the “eventual loss of a teaching position” was a “delayed, but
inevitable, consequence of the denial of tenure.” Id.
Notably, in Ricks, as well as in the Supreme Court’s most recent decision
on this issue, Ledbetter v. Goodyear Tire & Rubber Co., – U.S. – , 127 S. Ct.
2162 (2007), the plaintiff did not assert that the employer acted with unlawful
intent during the charging period (i.e., within the 300 days prior to the filing of an
administrative charge); rather, the plaintiff argued that the challenged action gave
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effect to discriminatory acts that occurred outside the charging period. See id. at
2167 (rejecting the argument that “it is sufficient that discriminatory acts that
occurred prior to the charging period had continuing effects during that period”);
Ricks, 449 U.S. at 257–58 (holding that plaintiff could not rely on a
discriminatory act occurring outside the charging period to file a complaint based
on a consequence of the time-barred act). Specifically, in Ledbetter, the plaintiff
argued that “an employment practice committed with no improper purpose and no
discriminatory intent is rendered unlawful nonetheless because it gives some
effect to an intentional discriminatory act that occurred outside the charging
period.” 127 S. Ct. at 2172. The Court rejected this argument and held that the
plaintiff’s claim was untimely. Id. But unlike the plaintiffs in Ledbetter and
Ricks, Mr. Proctor claims that UPS acted with unlawful intent during the charging
period (i.e., within the 300 days prior to the filing of the administrative complaint
upon which his lawsuit is based). He does not argue that his termination was a
delayed effect of alleged acts of discrimination occurring outside the charging
period.
In addition, unlike the Court in Ricks, we cannot conclude that UPS
notified Mr. Proctor of his eventual termination prior to the charging period. Cf.
Ricks, 449 U.S. at 258 (noting that the plaintiff had received “explicit notice that
his employment would end” after a one-year period). Even if we assume that Mr.
Proctor’s termination in January 2004 was an inevitable consequence of earlier
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employment decisions, the record does not support the conclusion that UPS
notified Mr. Proctor of this inevitability. The record contains evidence that he
was notified of Dr. Brown’s decision recommending he not return to work as a
package car driver and of UPS’s decision to deny his request for an
accommodation. The record does not, however, contain evidence that UPS
notified Mr. Proctor that these decisions would inevitably lead to his termination.
Indeed, in the March 2003 letter denying Mr. Proctor’s request for an
accommodation, UPS did not notify him that the denial would result in his
discharge; instead, UPS instructed him to call the district workforce planning
manager with any questions about his employment status. Cf. id. at 258 (holding
that the limitations period for filing an administrative charge began to run when
the alleged discriminatory act occurred “and [was] communicated” to the
employee (emphasis added)).
In short, the argument that Mr. Proctor’s discharge inevitably followed
from previous employment decisions is UPS’s argument, not Mr. Proctor’s, and is
therefore properly resolved on the merits. Because Mr. Proctor asserts that UPS
acted with retaliatory intent during the charging period and the record does not
indicate that he received notice of his eventual discharge prior to this period, we
conclude that Mr. Proctor’s ADA claim is timely.
B. Retaliation Claim under the ADA
We next consider Mr. Proctor’s claim that UPS violated the ADA, 42
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After the Supreme Court’s recent decision in Burlington N. & Santa Fe Ry. 4
Co. v. White, – U.S. – , 126 S. Ct. 2405 (2006), we use a “reasonable employee”
(continued...)
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U.S.C. § 12203(a), by discharging him in retaliation for filing administrative
charges of disability discrimination. When, as in the case before us, the plaintiff
does not offer direct evidence of retaliation, we analyze a retaliation claim under
the burden-shifting framework delineated in McDonnell Douglas Corp. v. Green2
411 U.S. 792, 802–04 (1973). See Anderson v. Coors Brewing Co., 181 F.3d
1171, 1178 (10th Cir. 1999). Following this framework, if Mr. Proctor
establishes a prima facie case of retaliation, the burden shifts to UPS to assert a
legitimate, nondiscriminatory reason for the adverse action. Piercy v. Maketa,
480 F.3d 1192, 1198 (10th Cir. 2007). If UPS provides a legitimate,
nondiscriminatory reason for its decision, the burden shifts back to Mr. Proctor to
show that UPS’s proffered reason is a “pretext masking discriminatory animus.”
Id.
In order to establish a prima facie case of retaliation, Mr. Proctor must
show: “(1) that he engaged in protected opposition to discrimination, (2) that a
reasonable employee would have found the challenged action materially adverse,
and (3) that a causal connection existed between the protected activity and the
materially adverse action.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452
F.3d 1193, 1202 (10th Cir. 2006) (citing Burlington N. & Santa Fe Ry. Co. v.
White, – U.S. –, 126 S. Ct. 2405, 2414–15 (2006)). Mr. Proctor clearly engaged
4
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(...continued) 4
standard to determine whether an employment action is adverse in retaliation
cases. Id. at 2415. In interpreting the scope of Title VII’s antiretaliation
provision, the Court held that “a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. (quotations omitted). Because the
ADA’s anti-retaliation provision, 42 U.S.C. § 12203(a), contains essentially the
same language as Title VII’s provision, 42 U.S.C. § 2000e-3(a), White applies in
the ADA context as well. See Haynes, 456 F.3d at 1228 (applying the same
elements of prima facie case to Title VII and ADA retaliation claims).
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in protected activity when he filed administrative charges with the OFCCP,
EEOC, and the Kansas Human Rights Commission alleging disability
discrimination based on UPS’s failure to accommodate him and return him to
work. See Stover, 382 F.3d at 1071 (“There is no dispute that [the plaintiff’s]
EEO complaints are protected activity.”); Anderson, 181 F.3d at 1178 (“By filing
an EEOC claim, Plaintiff engaged in protected activity.”). In addition, a
reasonable employee would certainly find UPS’s termination of Mr. Proctor a
materially adverse action. See Argo, 452 F.3d at 1202. Hence, only the third
element concerning causation is at issue.
To establish that a causal connection exists between the filing of
administrative charges and his discharge, Mr. Proctor may proffer “evidence of
circumstances that justify an inference of retaliatory motive, such as protected
conduct closely followed by adverse action.” Haynes, 456 F.3d at 1228
(quotation omitted). Proctor filed his last administrative charge on September 8,
2003, and received his termination letter over four months later on January 14,
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2004. Four months is too large a time gap to establish a causal connection. See
Piercy, 480 F.3d at 1198 (noting that we have found a proximity of three months
insufficient to support “a presumption of causation”); Anderson, 181 F.3d at 1179
(“[W]e have held that a three-month period, standing alone, is insufficient to
establish causation.” (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th
Cir. 1997)). In an attempt to establish causation by temporal proximity, Mr.
Proctor argues that he engaged in protected activity until the last administrative
agency, the OFCCP, issued its finding of no probable cause and its right-to-sue
letter on December 19, 2003. According to Mr. Proctor, because UPS and the
OFCCP were dealing with his complaint until December 2003, he engaged in
protected conduct until the agency issued its decision. Not surprisingly, the
Supreme Court has characterized this argument as “utterly implausible.” Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that the court of
appeals rejected “respondent’s utterly implausible suggestion that the EEOC’s
issuance of a right-to-sue letter—an action in which the employee takes no
part—is a protected activity of the employee”). Mr. Proctor took no part in the
agency determination. He engaged in protected activity when he filed the
administrative charge on September 8, after which more than four months passed
before his discharge.
Because a four-month time period does not support an inference of
retaliatory motive, Mr. Proctor must present additional evidence to establish the
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necessary causal connection. See Piercy, 480 F.3d at 1198–99 (“[T]he passage of
time does not necessarily bar a plaintiff’s retaliation claim if additional evidence
establishes the retaliatory motive.”); Haynes, 456 F.3d at 1228 (“Standing alone,
temporal proximity between the protected activity and the retaliatory conduct
must be very close in time. Otherwise, the plaintiff must offer additional
evidence to establish causation.” (quotation omitted)). The other evidence Mr.
Proctor proffers in support of causation is evidence he claims demonstrates the
weakness of UPS’s proffered reason for his discharge, thereby creating a genuine
issue of material fact as to whether UPS’s reason is a pretext for retaliation.
Although this kind of evidence is typically considered during the third phase of
the McDonnell Douglas inquiry, Mr. Proctor correctly notes that we have
considered evidence of pretext in the prima facie stage of a retaliation claim. See
Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003)
(considering evidence of pretext in analyzing the causation element of a prima
facie case of retaliation under Title VII).
UPS proffers a reason for Mr. Proctor’s discharge based on the application
of neutral employment policies. The company claims that Mr. Proctor was
terminated because Dr. Brown issued a final and binding decision under the CBA
that he was unable to perform the essential functions of his job and the company
was under no legal duty to accommodate him with a different position; based on
these determinations, UPS did not return Mr. Proctor to work, leading to his
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termination in January 2004 in accordance with its policy of terminating
employees who have not returned to work when their workers’ compensation
claims are resolved. Mr. Proctor concedes that UPS’s proffered reason is a
facially legitimate, nonretaliatory reason, but contends that two pieces of
evidence suggest that the reason is “unworthy of belief” and therefore a pretext
for retaliation. See Stover, 382 F.3d at 1073. To establish pretext, Mr. Proctor
must present “evidence of such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them unworthy of
credence and hence infer that the employer did not act for the asserted
non-discriminatory reasons.” Argo, 452 F.3d at 1203 (quotations omitted).
As evidence of pretext, Mr. Proctor asserts that the fact that UPS allowed
him to return to work in 1999 with a lifting restriction of thirty pounds suggests
that UPS later refused to return him to work with a higher lifting restriction in
retaliation for filing administrative charges. See Simms v. Oklahoma, 165 F.3d
1321, 1328 (10th Cir. 1999) (noting that plaintiff may use evidence concerning
prior treatment to demonstrate pretext). But his 1999 return to work was a
temporary arrangement. Dr. Brown (the doctor agreed upon by UPS and the
Union under the CBA) did not evaluate Mr. Proctor and recommend that he not
return to work until April 2002. When UPS permitted Mr. Proctor to return to
work in December 1999, it was still waiting for him to reach maximum medical
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In addition, UPS refused to return Mr. Proctor to work before he filed 5
administrative charges. The fact that UPS refused to return him to work both
before and after he filed charges also undermines any inference of pretext. See
Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1174 (10th Cir. 2006)
(noting that record did not support plaintiff’s claim that employer treated her
differently after she engaged in protected activity).
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improvement, at which time UPS could determine whether to return him to work
on a permanent basis. Hence, Mr. Proctor’s return to work with a temporary
accommodation in 1999 cannot support an inference that UPS acted with
retaliatory intent in discharging him in 2004.5
In addition, we note that, to establish that UPS terminated him with
retaliatory intent, Mr. Proctor may not rely on prior acts of alleged discrimination
occurring outside the charging period, as these constitute discrete and time-barred
actions. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). In
arguing that UPS treated him differently by refusing to allow him to return to
work with higher lifting restrictions in January 2004, Mr. Proctor is actually
challenging UPS’s earlier denial of his request for an accommodation. But Mr.
Proctor did not file suit based on administrative charges alleging UPS
discriminated against him in failing to accommodate his disability. Because
UPS’s denial of his request for an accommodation constitutes a discrete act of
alleged discrimination, it is not actionable unless he files suit based on this act.
See id. He cannot impute the alleged intent behind a time-barred act to UPS’s
decision to discharge him based on a neutral policy of relying on the CBA’s thirdAppellate Case: 06-3115 Document: 010134203 Date Filed: 09/18/2007 Page: 18
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doctor procedure and of discharging employees not at work at the close of
workers’ compensation claims. See Haynes, 456 F.3d at 1227 (“[An employee]
cannot use [an employer’s] alleged intent in performing time-barred discrete
actions . . . to attach discriminatory intent or pretext to [a] termination decision
based on a neutral policy.”).
As further evidence of pretext, Mr. Proctor argues that Dr. Poppa’s medical
evaluation in April 2003 calls UPS’s asserted reason for his termination into
question. He contends that a reasonable factfinder could conclude that UPS’s
asserted reason (i.e., reliance on Dr. Brown’s medical evaluation) is “unworthy
of belief” based on Dr. Poppa’s later and (in his view) more favorable medical
evaluation. As UPS points out, however, Dr. Poppa was not evaluating Mr.
Proctor’s ability to perform the essential functions of his job. Instead, he was
examining Mr. Proctor to assess his workers’ compensation disability rating. In
addition, as the District Court noted, Dr. Poppa did not state that Mr. Proctor can
perform the job’s essential functions; indeed, the doctor’s findings suggest that
Mr. Proctor may not be able to perform these functions (e.g., lifting seventy
pounds above shoulder level).
Moreover, in the context of a retaliation claim, the crucial question is not
whether Mr. Proctor can in fact perform the essential functions of his job. The
relevant question is whether Mr. Proctor can show that UPS’s “motive for taking
adverse action was its desire to retaliate for the protected activity.” Wells, 325
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F.3d at 1218. In other words, we must determine whether UPS treated Mr.
Proctor differently because he filed administrative charges of disability
discrimination, id. at 1219, not whether UPS correctly concluded that he could
not perform the essential functions of his job. As we have cautioned, “the
relevant inquiry is not whether [the employer’s] proffered reasons were wise, fair
or correct, but whether [the employer] honestly believed those reasons and acted
in good faith upon those beliefs.” Stover, 382 F.3d at 1076 (quotation omitted);
see also Piercy, 480 F.3d at 1200 (“Even a mistaken belief can be a legitimate,
non-pretextual reason for an employment decision.”). Mr. Proctor has failed to
offer any evidence that suggests UPS based his discharge on a retaliatory motive,
rather than on its neutral employment policies. Notably, he does not challenge
UPS’s policy of terminating an employee based on a final and binding doctor’s
decision under the CBA once all workers’ compensation claims are resolved. He
does not argue, for example, that UPS does not uniformly apply this policy. See
Haynes, 456 F.3d at 1228–29 (noting that employee who failed to establish
causation element of retaliation claim did not allege that her employer applied
employment policy in discriminatory manner). Nor does he argue that UPS used
the policy itself to discriminate against a class of employees. See Piercy, 480
F.3d at 1204 (noting that plaintiff need not prove discriminatory motive when
employment policy is discriminatory on its face); see also Ledbetter, 127 S. Ct. at
2173–74 (noting that an employer who adopts a facially discriminatory pay
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structure engages in unlawful discrimination each time it uses the pay structure).
The evidence Mr. Proctor proffers therefore fails to establish the causation
element of a prima facie case. See McGowan v. City of Eufala, 472 F.3d 736, 747
(10th Cir. 2006) (“If the reason for the claimed adverse action does not flow from
a discriminatory motive, it lacks the requisite causal connection to the adverse
action.”).
Furthermore, even if we were to assume that Mr. Proctor has established a
prima facie case, the evidence in its totality does not raise a genuine issue of
material fact regarding the third step of the McDonnell Douglas framework, that
is, whether UPS’s proffered reason is a pretext for retaliation. See Beaird v.
Seagate Tech., Inc., 145 F.3d 1159, 1174 (10th Cir. 1998) (noting that we
consider the totality of the plaintiff’s circumstantial evidence of pretext); see also
Stover, 382 F.3d at 1073–74 (assuming plaintiff established a prima facie case but
holding she failed to demonstrate a genuine issue of material fact regarding
pretext); Annett v. Univ. of Kan., 371 F.3d 1233, 1242 (10th Cir. 2004) (affirming
district court’s grant of summary judgment in employer’s favor because plaintiff
failed to raise genuine issue of material fact regarding pretext). As the above
discussion of Mr. Proctor’s evidence regarding pretext demonstrates, he has not
created a disputed issue as to whether UPS’s proffered reason is “unworthy of
belief.” We therefore affirm the District Court’s entry of summary judgment in
UPS’s favor on Mr. Proctor’s claim of retaliation under the ADA.
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C. Retaliation Claim Under Kansas Law
Kansas courts also apply the McDonnell Douglas burden-shifting
framework to claims of employment discrimination, including claims of
retaliatory discharge for filing a workers’ compensation claim. Gonzalez-Centeno
v. N. Cent. Kan. Reg’l Juvenile Det. Facility, 101 P.3d 1170, 1177 (Kan. 2004);
Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass’n of Dighton, 35 P.3d
892, 898 (Kan. 2001). As discussed above, under this framework, Mr. Proctor
must establish a prima facie case of retaliation. Gonzalez-Centeno, 101 P.3d at
1177. If he meets this burden, UPS must come forward with a legitimate,
nonretaliatory reason for the discharge. Id. Mr. Proctor then has the burden of
showing “by a preponderance of the evidence” that this legitimate reason is a
pretext for retaliation in violation of state law. Id.; see also Magnum Foods, Inc.
v. Cont’l Cas. Co., 36 F.3d 1491, 1503 (10th Cir. 1994) (noting that we apply
state law when examining evidence in terms of underlying burden of proof).
To establish a prima facie case for retaliation under Kansas law, a plaintiff
must establish four elements:
(1) The plaintiff filed a claim for workers compensation benefits or
sustained an injury for which he or she might assert a future claim
for such benefits; (2) the employer had knowledge of the plaintiff’s
workers compensation claim injury; (3) the employer terminated the
plaintiff’s employment; and (4) a causal connection existed between
the protected activity or injury and the termination.
Gonzalez-Centeno, 101 P.3d at 1177. Here, the parties agree that the first three
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elements have been established. Only the fourth element regarding causation is at
issue.
To determine whether a causal connection exists, Kansas courts typically
begin by asking whether the employee’s protected activity and the termination are
closely connected in time. Rebarchek, 35 P.3d at 899; see also White v. Tomasic,
69 P.3d 208, 212 (Kan. Ct. App. 2003) (“Close temporal proximity between a
workplace injury or the filing of a workers compensation claim and the adverse
employment action may be highly persuasive evidence of retaliation.” (quotation
omitted)). Although Mr. Proctor filed his workers’ compensation claim in
November 1999, he argues that he engaged in protected activity as late as
December 2003, the month before he received notice of his discharge. According
to Mr. Proctor, his participation in settlement negotiations and the appeal of his
workers’ compensation claim, which was finalized in December 2003, constitute
protected activity. Kansas courts have not squarely addressed whether an
employee’s ongoing participation in litigation constitutes protected activity,
instead noting only that the filing of a claim is protected activity. See Rebarchek,
35 P.3d at 899 (“Proximity in time between the claim and discharge is a typical
beginning point for proof of a causal connection.” (emphasis added)). We will
therefore assume, without deciding, that Mr. Proctor has established a prima facie
case of retaliation for participating in the appeal of his workers’ compensation
claim and proceed to determine whether he has presented evidence indicating that
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UPS’s proffered legitimate reason is a pretext for retaliation. See Stover, 382
F.3d at 1073 (assuming plaintiff established a prima facie case and deciding
whether employer was entitled to summary judgment based on plaintiff’s
evidence of pretext).
As noted above, UPS has asserted a facially legitimate, nonretaliatory
reason for Mr. Proctor’s termination, namely that, pursuant to the final and
binding doctor’s decision under the CBA, Mr. Proctor was not returned to work
and was therefore discharged once his workers’ compensation claims were closed.
In response, Mr. Proctor points to five pieces of evidence that he claims create a
genuine issue of material fact regarding pretext. In addition to the evidence
proffered in support of his retaliation claim under the ADA, Mr. Proctor claims
three pieces of circumstantial evidence create a disputed issue concerning pretext:
(1) the temporal proximity between the resolution of his workers’ compensation
claim and his discharge; (2) a disparaging remark made by a UPS employee; and
(3) a reference to his workers’ compensation claim in his termination letter. We
consider each piece of evidence below.
First, Mr. Proctor asks us to consider the same evidence proffered in
support of his retaliation claim under the ADA, that is, that a reasonable
factfinder could infer retaliation based on his temporary return to work in 1999
and Dr. Poppa’s medical evaluation. But as we explained above, the fact that
UPS temporarily returned Mr. Proctor to work with lifting restrictions in 1999 has
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As this Court has previously held, temporal proximity is sufficient to 6
establish a prima facie case, but not to establish pretext, because the evidentiary
burden is different: “The burden of establishing a prima facie case [in the
McDonnell Douglas framework] is not onerous. It is because of this relatively lax
burden that we allow temporal proximity between a protected activity and an
adverse action to establish a prima facie case; for the same reason, we have not
(continued...)
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no bearing on UPS’s motive in terminating him after Dr. Brown recommended he
not return to work on a permanent basis. Similarly, Dr. Poppa’s medical
evaluation is not probative of pretext; the existence of another medical opinion
obtained at the request of UPS’s insurer does not contradict or otherwise weaken
UPS’s assertion that it relied on Dr. Brown’s final and binding decision under the
CBA.
Next, we consider Mr. Proctor’s evidence of temporal proximity. As
discussed above, we assume, but do not decide, that temporal proximity is present
in this case based on the fact that Mr. Proctor received notice of his termination
in close proximity to the resolution of the appeal of his workers’ compensation
claim. Although we may consider evidence of temporal proximity—typically
used to establish a prima facie case—in analyzing pretext, see Gonzalez-Centeno,
101 P.3d at 1178, temporal proximity alone is insufficient to raise a genuine issue
of material fact concerning pretext, see Annett, 371 F.3d at 1240–41; Anderson,
181 F.3d at 1180 (assuming temporal proximity present for purposes of prima
facie case but concluding that proximity alone was insufficient to survive
summary judgment on issue of pretext). We must therefore determine whether 6
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(...continued) 6
imported this lessened standard to pretext analysis where the burden is more
demanding and requires a plaintiff to assume the normal burden of any plaintiff to
prove his or her case at trial.” Annett, 371 F.3d at 1241 (alteration in original)
(citations and quotations omitted). Kansas courts have also recognized the
different burdens required at these two stages. See Rebarchek, 35 P.3d at 901.
We therefore conclude that Kansas courts would require a plaintiff to show more
than temporal proximity to establish a genuine issue of material fact concerning
pretext.
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temporal proximity combined with other evidence proffered by Mr. Proctor
creates a reasonable inference that UPS’s asserted reason is unworthy of belief.
See Gonzales-Centeno, 101 P.3d at 1178 (noting that, to survive summary
judgment, the plaintiff must demonstrate a genuine issue of material fact as to
whether the employer’s asserted reason is “unworthy of belief”).
As further evidence that UPS’s asserted reason is unworthy of belief, Mr.
Proctor notes the crass and disparaging remark made by Monica Sloan in July
2003 when his union representative asked her about the status of settlement
negotiations in his workers’ compensation case and whether UPS would allow Mr.
Proctor to return to work. Mr. Proctor claims he heard Ms. Sloan tell his union
representative: “We’re going to pay him a work comp settlement and as far as I’m
concerned he can go eat shit and die.” Although this alleged remark certainly
suggests that Ms. Sloan was frustrated by Mr. Proctor’s case, one isolated remark
made several months before he received notice of his termination does not create
a genuine issue of material fact concerning UPS’s motivation. Ms. Sloan testified
that the January 2004 termination letter was a result of UPS’s policy of
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terminating employees who are not back to work at the close of their workers’
compensation claims. Nothing in the record contradicts her understanding that
Mr. Proctor’s termination was inevitable as a matter of UPS policy, that is, that
Mr. Proctor would be discharged at the close of his workers’ compensation case
because Dr. Brown recommended he not return to work and UPS had determined
he was not eligible for an accommodation. This alleged statement does not,
therefore, support an inference of retaliatory motive.
Similarly, we are unconvinced by Mr. Proctor’s argument that a reasonable
factfinder could infer retaliatory motive based on the reference to his workers’
compensation claim in the January 2004 letter notifying him of his discharge.
The letter contained the following language: “This is to inform you on January
14, 2004, UPS closed all worker[s’] compensation claims on John Proctor. . . .
This employee will be separated from UPS as of January 14, 2004.” Rather than
arguing that the letter calls UPS’s facially legitimate reason into question, Mr.
Proctor argues that UPS could not rely on the medical evaluations conducted in
2002 in accordance with the CBA to terminate him in January 2004. In essence,
he argues that UPS violated Kansas law by terminating him at the close of his
workers’ compensation case because it did not have “ample evidence” that he
would not be able to return to work. In support of this contention, he cites our
decision in Sanjuan v. IBP, Inc., 275 F.3d 1290 (10th Cir. 2002).
Our analysis of Kansas law in Sanjuan does not, however, support Mr.
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Proctor’s argument. The Kansas case discussed in Sanjuan stands for the
proposition that an employee can prevail on a retaliation claim by showing the
employer acted with retaliatory animus before acquiring ample evidence that the
employee will not be able to return to work:
Although the public policy exception that created the tort of
retaliatory discharge for terminating an injured employee for filing a
workers compensation claim does not apply to an injured employee
who is unable to return to his or her former job after an injury, the
requirement that an injured employee be able to return to his or her
former position will not preclude an injured employee’s claim for
retaliatory discharge when the injured employee can show a
retaliatory motive on the part of the employer before the employer
had ample evidence that the injured employee would be unable to
perform his or her former job.
Gertsch v. Cent. Electropolishing Co., 26 P.3d 87, 90 (Kan. Ct. App. 2001)
(emphasis added), discussed in Sanjuan, 275 F.3d at 1295. In other words, if an
employer has ample evidence that an employee will not be able to return to work
on a permanent basis, an employee may not sustain an action based on retaliatory
discharge under Kansas law. Conversely, an employee may prevail on a
retaliatory discharge claim if the employer did not have ample evidence and the
employee “can show a retaliatory motive on the part of the employer.” Gertsch,
26 P.3d at 90.
Here, we need not determine whether UPS had “ample evidence” of Mr.
Proctor’s inability to return to work because Mr. Proctor has failed to present
evidence that establishes a genuine issue of material fact regarding UPS’s motive.
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He has not presented any evidence that disputes UPS’s assertion that his
termination was based on Dr. Brown’s final and binding decision under the CBA
and UPS’s policy of terminating employees not at work at the close of their
workers’ compensation claims. That is, the critical question in the present case is
not whether Mr. Proctor could perform the essential functions of his job in
January 2004, but whether UPS’s proffered reason is a pretext for retaliation. See
Sanjuan, 275 F.3d at 1295 (“In the final analysis, one asks, ‘What was [the
employer’s] motive for firing [the employee]?’”). The reference to his workers’
compensation claims in his termination letter does not suggest that UPS’s reliance
on Dr. Brown’s evaluation is a “cover-up or pretext for retaliatory discharge.”
Bracken v. Dixon Indus., Inc., 38 P.3d 679, 682 (Kan. 2002). Instead, it simply
indicates that the notice of termination coincides with the closure of his workers’
compensation claims.
In sum, even if we assume that Mr. Proctor has established a prima facie
case based on temporal proximity, he has not presented evidence sufficient to
create a genuine issue of material fact regarding UPS’s motive for terminating
him. See Bracken, 38 P.3d at 684 (holding that plaintiff failed to establish
inference of retaliatory intent sufficient to survive summary judgment when
evidence did not suggest that employer used a general policy as a pretext for her
discharge). We therefore affirm the District Court’s entry of summary judgment
in UPS’s favor on Mr. Proctor’s claim of retaliatory discharge under Kansas law.

Outcome: For the foregoing reasons, we AFFIRM the District Court’s grant of
summary judgment in UPS’s favor on Mr. Proctor’s claims of unlawful retaliation
under the ADA and Kansas law. In addition, we GRANT UPS’s motion to file
portions of its appendix under seal.

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