Filed: May 26, 2016
Latest Update: Mar. 02, 2020
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS May 26, 2016 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _ ROBERT E. ADAIR, Plaintiff - Appellant, v. No. 15-7067 CITY OF MUSKOGEE, OKLAHOMA, a municipal corporation, Defendant - Appellee. _ Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:15-CV-00053-RAW) _ Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, Oklahoma, for Plaintiff- Appellant. C
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS May 26, 2016 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _ ROBERT E. ADAIR, Plaintiff - Appellant, v. No. 15-7067 CITY OF MUSKOGEE, OKLAHOMA, a municipal corporation, Defendant - Appellee. _ Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:15-CV-00053-RAW) _ Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, Oklahoma, for Plaintiff- Appellant. Cl..
More
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 26, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ROBERT E. ADAIR,
Plaintiff - Appellant,
v. No. 15-7067
CITY OF MUSKOGEE, OKLAHOMA, a
municipal corporation,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:15-CV-00053-RAW)
_________________________________
Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, Oklahoma, for Plaintiff-
Appellant.
Clark W. Crapster, Steidley & Neal, Tulsa, Oklahoma (Sean M. McKelvey, Steidley &
Neal, McAlester, Oklahoma, with him on the briefs), for Defendant-Appellee.
_________________________________
Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
Robert Adair was a firefighter with the City of Muskogee, Oklahoma (the City)
when he injured his back during a training exercise. As a result of his injury, Adair
completed a functional-capacity evaluation that measured and limited his lifting
capabilities. After two years on paid leave, Adair received a workers’ compensation
award definitively stating that Adair’s lifting restrictions were permanent. The same
month he received his award, Adair retired from the Muskogee Fire Department (the
Department).
Adair argues that his retirement was a constructive discharge—he claims that
the City forced him to choose between being fired and retiring, which, he contends,
discriminated against him in violation of the Americans with Disabilities Act of 1990
(ADA), Pub. L. No. 101-336, 104 Stat. 327 (current version at 42 U.S.C. § 12101
et seq.), and retaliated against him for receiving a workers’ compensation award in
violation of the Oklahoma Workers’ Compensation Act, Okla. Stat. tit. 85, § 341(A)
(2011), repealed by 2013 Okla. Sess. Laws 208, § 171 (current version at Okla. Stat.
tit. 85A, § 7).1 The district court granted the City’s motion for summary judgment.
Unfortunately, in analyzing Adair’s discrimination claims, neither the parties nor the
district court recognized the changes that Congress made to the ADA in enacting the
ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553
(codified at 42 U.S.C. § 12101 et seq.).
Notwithstanding this error, and while exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm. Even if the City regarded Adair as having an impairment, Adair
cannot show that he was qualified to meet the physical demands required of
firefighters or that the City could reasonably accommodate his lifting restrictions.
1
The district court ruled that this earlier version of Oklahoma law applies to
Adair’s claim. Neither party challenges this ruling on appeal.
2
Adair also challenges, as an illegal medical examination, the functional-capacity
evaluation that the City required he complete, but the evaluation arose from Adair’s
workers’ compensation claim, was job-related, and was a business necessity. Adair’s
retaliatory-discharge claim also fails as a matter of law because Adair cannot show
that the City’s non-retaliatory reason for terminating him (his permanent lifting
restrictions) was pretext.
BACKGROUND
Because this is an appeal from a grant of summary judgment, the following
facts are either undisputed or construed in the light most favorable to Adair. See Den
Hartog v. Wasatch Acad., 129 F.3d 1076, 1078 (10th Cir. 1997). We have drawn all
reasonable inferences from the factual record in Adair’s favor. See
id.
A. Adair’s Responsibilities with the Muskogee Fire Department
On May 6, 1981, Adair began his career as a firefighter with the Department.
He served in the Department for about 32 years, with the last four years as the
Department’s Hazardous-Materials (HazMat) Director. The Department provides a
written job description for the position of HazMat Director, and the description
requires the HazMat Director “to respond to all Level II and Level III hazmat
responses, and [to] assume command of hazmat operations.” Appellant’s App. at 48.
The description also requires the HazMat Director “to attend and pass all classes and
schools and be confident in his ability and the team’s ability in the [HazMat Director]
to command the hazmat team in all situations.” Id.
3
In addition, the Oklahoma Administrative Code provides a “[d]escription of
essential functions of all eligible firefighters.” Okla. Admin. Code § 270:10-1-7
(2016). “To be eligible for entrance into the [Firefighters Pension and Retirement]
System as a paid firefighter, a candidate must meet minimum medical requirements
which reflect the ability of the candidate to perform the essential functions of fire
suppression, prevention and life safety . . . .”
Id. Firefighters must be able to
“search[], find[], and rescue-drag[] or carry[] victims ranging from newborns up to
adults weighing over 200 lb to safety despite hazardous conditions and low
visibility.”
Id. § 270:10-1-7(6). Firefighters must also be able to “climb[] 6 or more
flights of stairs while wearing fire protective ensemble weighing at least 50 lb or
more and carrying equipment/tools weighing an additional 20 to 40 lb.”
Id.
§ 270:10-1-7(4).
Finally, the Oklahoma Administrative Code includes a “physical
performance/agility test” for firefighter candidates that “may be incorporated into an
objective evaluation as to whether a candidate meets the initial criteria in order to
perform the essential functions of a firefighter as described in Section 270:10-1-7.”
Id. § 270:10-1-6(a). Among other requirements, the test requires that “[t]he
candidate, given a weight of 125 lb. (57 kg.)[,] shall lift the weight from the floor and
carry the weight 100 ft. . . . without stopping.”
Id. § 270:10-1-6(c)(5).
Adair asserts that during his four years as HazMat Director, he “never
performed firefighting or other firefighter duties, other than being director of the
[HazMat] operation.” Appellant’s Opening Br. at 3. Adair “could not contemplate a
4
situation where it would be necessary for him to fight a fire.” Id. But Adair concedes
that the HazMat Director’s “job does have some lifting involved.” Appellant’s App.
at 51. And as part of his functional-capacity evaluation, Adair said that “his job
duties as a firefighter for the City” required him to be able to “walk, run, lift, push,
pull, bend, carry, climb and squat.”
Id. at 60. Though Adair asserts that his “job as
HazMat director did not require him to do the work of a firefighter,” he does not
dispute that he was a firefighter.
Id. at 101. Adair also testified that the Department
had a policy, which “ha[d] been talked about at the fire department for years,” that
firefighters could not have “lifting restrictions.”
Id. at 51. His “understanding” was
that “in order to work as a fireman, you have to have unlimited restrictions and you
need to be able to lift any amount of weight.”
Id. The Department’s Fire Chief, Derek
Tatum, also testified that to work as a firefighter, the person “would have to have a
total release from a doctor.”
Id. at 214.
B. Adair’s Injury and Termination
In March 2012, Adair injured his back while he was at a training exercise in
Utah. Adair said that “he was going downstairs with equipment on and missed a tread
resulting in a loss of balance and turning of body and twisting to the right.” Id. at 59.
The next month, Adair filed a workers’ compensation claim for his injury. Soon after
filing his workers’ compensation claim, Adair saw Dr. James H. Baker and later
testified that Dr. Baker told Adair that Adair was unable to return to work. Adair
informed the Fire Chief about this. Adair further testified that on April 16, 2012, Dr.
Baker released Adair to return to work, which Adair did that same day. But about six
5
and a half hours into his eight-hour shift, the Fire Chief called Adair to tell him “that
the City was rejecting [his] return back to work.” Id. at 164. On September 5, 2012,
Adair had his first visit with his chosen doctor, Dr. David R. Hicks, at which time Dr.
Hicks “ordered what was a called a functional capacity evaluation, which is basically
a test of what [Adair’s] physical capacity is, what [he could] safely do.”
Id. at 121.
On October 15, 2012, Adair completed the functional-capacity evaluation. The
evaluation’s Functional Activities Summary showed that Adair could
(1) occasionally lift 105 pounds from floor to shoulder; (2) occasionally lift 70
pounds from waist to shoulder; (3) occasionally lift 90 pounds from floor to waist;
(4) occasionally carry 85 pounds; and (5) frequently lift 80 pounds from floor to
waist, waist to shoulder, and floor to shoulder. The evaluation indicated that “Adair
demonstrated a maximal lifting capacity of 105 pounds [o]ccasionally and 90 pounds
[f]requently.” Id. at 57.
After the functional-capacity evaluation, Adair saw three doctors, all of whom
concluded that Adair was permanently injured and could not perform the duties of a
firefighter. First, on April 25, 2013, Dr. James A. Rodgers concluded that Adair “is at
risk to go back to work in any position that requires him to bend, stoop, or lift 75 to
125 pounds,” which Adair told Dr. Rodgers “is the requirement as a firefighter.” Id.
at 74. Dr. Rodgers also found that “going up and down ladders with weakness in
[Adair’s] right leg that may not totally clear, would also be problematic.”
Id. Second,
on March 19, 2014, Dr. Baker concluded that Adair “cannot perform the duties of a
firefighter, limited by his back pain with minimal exertion/movement.”
Id. at 76. And
6
third, on March 20, 2014, Dr. Hicks concluded that Adair “has permanent
restrictions” and “[d]ue to pain he cannot perform the duties of a firefighter safely.”
Id. at 98.
On March 4, 2014, Adair received his workers’ compensation award. The
Oklahoma Workers’ Compensation Court concluded that from Adair’s training-
exercise fall, Adair had “sustained 12 percent permanent partial impairment to the
body as a whole attributable to the low back.” Id. at 226 (capitalization omitted).
According to Adair, after his workers’ compensation award, the City “encouraged”
him “to take a disability retirement rather than be terminated.”
Id. at 115. Adair said
that, “[b]eing left with no apparent alternative from what the City required, and at
their suggestion, [he] chose disability retirement rather than termination.”
Id.
On March 18, 2014, Adair applied for a disability-retirement pension for his
32 years of service with the Department.2 On March 26, 2014, the Muskogee
Firefighters Pension and Retirement Board (the State Board) met to discuss, among
other things, Adair’s disability-retirement pension application. On April 11, 2014, the
State Board representative reviewed Adair’s disability-retirement pension application
and concluded that Adair’s application “would meet the provisions of state statutes
and the administrative rules . . . .”
Id. at 80. In a letter dated April 18, 2014, the State
2
Adair dated his disability-retirement-pension application March 18th, but the
application was notarized on the 19th, with the notary saying, “I hereby certify that
the above and foregoing application and release was executed by Adair on this 19th
day of March.” Appellant’s App. at 84.
7
Board informed Adair that it approved Adair’s disability-retirement pension
application and made his pension effective April 1, 2014.
C. Adair’s Current Claim and the District Court’s Summary-Judgment
Order
On February 2, 2015, Adair sued the City in state court under the ADA and the
anti-retaliation provisions of the Oklahoma Workers’ Compensation Act. On February
10, 2015, the City removed the action to the United States District Court for the
Eastern District of Oklahoma.
After completing discovery, the City moved for summary judgment on all of
Adair’s claims. In its summary-judgment motion, the City argued that Adair
“accepted many monetary benefits from government sources while setting up a
contrived lawsuit for more money, claiming that the [City] did something they were
not statutorily capable of doing.” Id. at 33. Specifically, the City argued that the State
Board—not the City or the Department—was responsible to resolve any “dispute as
to whether [Adair] must retire.”
Id. The City contended that rather than seeking an
administrative resolution through the State Board, Adair “chose to voluntarily retire
due to an on-the-job injury, which he affirmatively claimed to the State Board was a
permanent disability preventing him from continuing to work.”
Id.
The City further contended that Adair’s claim failed under the ADA. The City
argued that Adair could not show that he was a “qualified individual” under the ADA
for two reasons: (1) Adair “already represented to the State Board that he was unable
to continue his job due to an in-the-line-of-duty injury causing a permanent
8
disability,” and (2) Adair acknowledged “that permanent restrictions on weight lifting
capabilities meant that the restricted employee could no longer serve as a firefighter.”
Id. at 40. In other words, the City argued that Adair “did not meet the requisite
physical standards for being a firefighter under his employer’s known policy, and if
he disagreed with the policy, the matter had to be addressed with the State Board.”
Id.
at 41. The City further contended that Adair was not disabled under the ADA,
because his lifting restrictions “merely prevented [Adair] from performing one
specific type of job.”
Id. at 42. The City also argued that Adair’s retaliatory-discharge
claim failed as a matter of law because Adair “cannot establish a retaliatory discharge
claim based on a provision that expressly permits termination of an employee who is
unable to perform his or her job duties after suffering an on-the-job injury.”
Id. at 44
(citing Garza v. Henniges Auto., No. CIV-12-1023-D,
2013 WL 6858690, at *5 (W.D.
Okla. Dec. 30, 2013) (unpublished)).
In response, Adair argued that “the determination of the State Board is not
determinative in this discrimination case” and “the board determination was based on
Defendant’s own (illegal) determination of Plaintiff’s ability to do the job.” Id.
at 107–08. Adair contended that “applicable federal law provides that [Adair’s]
obtaining of his pension or faring differently under alternative procedures do not bar
his claim.”
Id. at 108. Adair also argued that the City violated the ADA in two ways:
(1) the City’s requiring him to undergo the functional-capacity evaluation was “an
illegal medical examination,” and (2) the City discriminated against Adair based on a
disability.
Id. at 109. Addressing the latter argument, Adair asserted that he was a
9
qualified individual because “the ADA requires that physical requirements for the
job, rather than lack of medical impairments, be the legal test” and that he had “met
the physical requirements to do the job.” Id. at 112. Adair also argued that his
retaliatory-discharge claim should survive summary judgment because his receiving
the workers’ compensation award “was the impetus to termination” and “termination
within the month of the event is sufficient to get to the jury.”
Id. at 113.
The district court granted the City’s motion on all of Adair’s claims. First, the
court granted the City summary judgment on Adair’s ADA-discrimination claim,
concluding that Adair’s disability showing failed because “[t]he job of firefighter
does not constitute a ‘class of jobs’ or a ‘broad range of jobs in various classes’ for
purposes of establishing a ‘substantial limitation’ in the major life activity of
‘working.’” Id. at 260. Further, the court granted the City summary judgment on
Adair’s claim premised on the functional-capacity evaluation, concluding that “a
voluntary medical examination in connection with the employee[’s] pursuit of a
workers’ compensation claim is job-related and consistent with business necessity.”
Id. at 261. Finally, regarding Adair’s retaliatory-discharge claim, the court rejected
Adair’s argument about temporal proximity. The court concluded that Adair offered
nothing more than bald assertions without citations to the record and failed to “show
a pattern of termination of workers who filed claims, or of pressure put on workers
not to file claims.”
Id. at 257. Additionally, the court held that the City had presented
a non-retaliatory reason for Adair’s discharge—Adair’s lifting restrictions—and that
Adair had failed to rebut this reason with anything but his HazMat Director job title.
10
The court rejected Adair’s argument about his job title excusing him from performing
firefighter duties, explaining that “[Adair] was a firefighter employed by the City of
Muskogee, and the Muskogee Fire Department has a policy that a firefighter must be
unrestricted in lifting weight.” Id. at 259 (emphasis in original). Adair timely
appealed.
DISCUSSION
On appeal, Adair makes four claims: (1) the district court erred in granting
summary judgment on his ADA-discrimination claim because the City regarded Adair
as having an impairment and the Department’s no-restrictions policy was an improper
qualification standard; (2) the district court erred in granting summary judgment on
his illegal-medical-examination claim under the ADA because he involuntarily
complied with the functional-capacity evaluation, which the City failed to show was
job-related and a business necessity; (3) the district court erred in granting summary
judgment on Adair’s retaliatory-discharge claim because the court did not consider
Adair’s evidence of causation; and (4) the district court erred in requiring Adair to
calculate emotional damages in his initial disclosures. We discuss, and reject, each
argument in turn.
A. Standard of Review
We review de novo a district court’s grant of summary judgment. EEOC v.
C.R. Eng., Inc., 644 F.3d 1028, 1037 (10th Cir. 2011). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
11
“A genuine dispute as to a 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.’” Carter v. Pathfinder Energy Servs., Inc.,
662 F.3d 1134, 1141 (10th Cir. 2011) (quoting Zwygart v. Bd. of Cty. Comm’rs,
483 F.3d 1086, 1090 (10th Cir. 2007)).
B. Adair’s Disability-Discrimination Claim
First, Adair argues that the City discriminated against him based on a
disability. He asserts that he was “regarded as” having an impairment, and that the
City’s no-restrictions policy for firefighters was an improper qualification standard.
Appellant’s Opening Br. at 12.
Adair, the City, and the district court all failed to evaluate Adair’s claims
under the governing version of the ADA. Instead of relying on the ADAAA, they
relied on the ADA. We first outline the relevant substantive changes that Congress
made to the ADA by enacting the ADAAA and then apply the ADAAA standards for
“regarded as” claims. Although we conclude that Adair might be able to show that
the City regarded him as having an impairment under the ADAAA, Adair’s
disability-discrimination claim would still fail because Adair was not qualified for
the position of firefighter.
1. The Substantive Changes that the ADAAA Made to “Regarded As”
Claims
The ADAAA prohibits discrimination “against a qualified individual on the basis
of disability.” 42 U.S.C. § 12112(a). Thus, to establish a prima facie case of
12
discrimination under the ADAAA, a plaintiff must show that (1) he is disabled as defined
under the ADAAA; (2) he is qualified, with or without reasonable accommodation by the
employer, to perform the essential functions of the job; and (3) he was discriminated
against because of his disability. See Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d
877, 883 (10th Cir. 2015). Here, we address how the ADAAA changed the definition of
“disability” as used in disability-discrimination claims.
On July 26, 1990, when Congress first enacted the ADA, Congress defined
“disability” of individuals as “(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” ADA, § 3(2). In
Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999), overturned by ADAAA,
122 Stat. 3553, the Supreme Court narrowly construed the third prong of that original
definition. The Court explained that to bring a “regarded as” claim, the plaintiff must
show that either “(1) a covered entity mistakenly believes that a person has a physical
impairment that substantially limits one or more major life activities, or (2) a covered
entity mistakenly believes that an actual, nonlimiting impairment substantially limits one
or more major life activities.”
Sutton, 527 U.S. at 489. In other words, the Court
interpreted the third prong as “requir[ing] a plaintiff to plead and prove that she was
regarded as having an impairment that fit the terms of the first prong—that is, that
she was regarded as having an impairment that substantially limited one or more
major life activities.” Mercado v. Puerto Rico,
814 F.3d 581, 587 (1st Cir. 2016)
(citing
Sutton, 527 U.S. at 489). Years later, the Supreme Court further limited the
13
instances when a plaintiff could show that his impairment would substantially limit a
major life activity. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198
(2002) (explaining “that to be substantially limited in performing manual tasks, an
individual must have an impairment that prevents or severely restricts the individual
from doing activities that are of central importance to most people’s daily lives”),
overturned by ADAAA, 122 Stat. 3553.
In 2008, by passing the ADAAA, Congress abrogated these Supreme Court
rulings. See ADAAA, § 2(b)(2)–(4) (“The purposes of this Act are . . . to reject the
requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999) and its companion cases . . . [and] to reject the standards enunciated
by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002) . . . .”). In Congress’s view, both Sutton and Williams had
improperly “narrowed the broad scope of protection intended to be afforded by the ADA,
thus eliminating protection for many individuals whom Congress intended to protect.”
Id.
§ 2(a)(4). To reverse course, Congress passed the ADAAA with the stated goal of
ensuring that “[t]he definition of disability . . . be construed in favor of broad coverage.”
Id. § 4(a). To do so, Congress amended the definition of the term “disability.” Under the
ADAAA’s amended definition, “[t]he term ‘disability’ means, with respect to an
individual—(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1). In addition, the
14
ADAAA modified the scope of a “regarded as” claim by defining “being regarded as
having such an impairment” as follows:
An individual meets the requirement of “being regarded as having such an
impairment” if the individual establishes that he or she has been subjected
to an action prohibited under this chapter because of an actual or perceived
physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.
Id. § 12102(3)(A) (emphasis added).
Congress’s addition at the end of this definition is significant. Unlike an
impairment as defined in subsections (A) or (B), an impairment under § 12102(1)(C)
need not limit or even be perceived as limiting a major life activity—the employer need
only regard the employee as being impaired, whether or not the employer also believed
that the impairment prevented the employee from being able to perform a major life
activity. Under the ADAAA, the only qualification for an impairment in a “regarded as”
claim is that the impairment not be “transitory and minor.” Id. § 12102(3)(B); see
id.
(“Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A
transitory impairment is an impairment with an actual or expected duration of 6 months
or less.”).
Thus, the ADAAA has defined disability differently for “regarded as” claims than
did the ADA and our caselaw interpreting the ADA. Today, a plaintiff bringing a
“regarded as” claim “needs to plead and prove only that she was regarded as having a
physical or mental impairment.” Mercado, 814 F.3d at 588. Unlike pre-ADAAA
plaintiffs, an ADAAA plaintiff no longer needs to plead and prove that the actual or
perceived impairment “substantially limited one or more major life activities.” Id.; see
15
Morriss v. BNSF Ry. Co., __ F.3d __, 2016 WL 1319407, at *5 (8th Cir. Apr. 5, 2016)
(“[T]he EEOC [has taken] the position that ‘it is not necessary to determine whether an
individual is ‘substantially limited’ in any major life activity’ for ‘regarded as’ disabled
cases.” (quoting 29 C.F.R. app. § 1630.2(j))).
In the district court and in their appellate briefing, both parties have premised their
arguments on the pre-ADAAA standard. The district court granted the City summary
judgment on Adair’s disability-discrimination claim under the pre-ADAAA standard,
concluding that Adair had failed to show a disability because “[t]he job of firefighter
does not constitute a ‘class of jobs’ or a ‘broad range of jobs in various classes’ for
purposes of establishing a ‘substantial limitation’ in the major life activity of
‘working.’” Appellant’s App. at 260. This was error. The alleged discrimination against
Adair took place in 2014, and the pre-ADAAA law regarding the requirements for a
“regarded as” claim on which the district court relied in its summary-judgment order no
longer applied.
Under the ADAAA, it doesn’t matter if Adair’s lifting restriction did or didn’t
“substantially limit” him from being able to perform “a major life activity.” See Sutton,
527 U.S. at 489. Under the ADAAA, for a plaintiff alleging disability discrimination to
show that the employer regarded him as having an impairment, the plaintiff must show
that (1) he has an actual or perceived impairment, (2) that impairment is neither transitory
nor minor, and (3) the employer was aware of and therefore perceived the impairment at
the time of the alleged discriminatory action. Thus, in this case, Adair would need to
show only that (1) his lifting restrictions are an actual or perceived impairment, (2) the
16
lifting restrictions are neither transitory nor minor, and (3) the City was aware of and
therefore perceived the impairment at the time of Adair’s termination. As the City
acknowledged during oral argument, the ADAAA’s substantive changes to “regarded as”
claims would have altered the district court’s analysis—Adair could show under the
ADAAA that the City regarded him as having an actual or perceived impairment. Facing
this conceded error, the City argues that Adair’s disability-discrimination claim would
still fail because he is not a qualified individual. We agree.
2. Whether Adair Was Qualified for the Position of Firefighter
Even if Adair could show that he is disabled as defined by the ADAAA, Adair
would also need to show that he is a qualified individual for the job that he seeks.
Although the ADAAA expanded the scope of “regarded as” claims, “Congress’s 2008
amendments to the ADA did not fundamentally change the qualification requirement.”
Brown v. City of Jacksonville, 711 F.3d 883, 888 (8th Cir. 2013). To bring a disability-
discrimination claim under the ADAAA, just as it was under the ADA, a plaintiff must
still show that he is a “qualified individual” for the position that he seeks. See 42 U.S.C.
§ 12112(a) (prohibiting discrimination against “a qualified individual on the basis of
disability” (emphasis added)). In this case, Adair cannot show that he was qualified for
the position of firefighter.
The ADAAA provides that a “qualified individual” is “an individual who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” Id. § 12111(8). In
considering whether a person is able to perform the “essential functions” of the job, the
17
ADAAA commands that “consideration shall be given to the employer’s judgment as to
what functions of a job are essential.” Id. In addition, the statute explains that where “an
employer has prepared a written description before advertising or interviewing applicants
for the job, this description shall be considered evidence of the essential functions of the
job.”
Id.
To determine whether a plaintiff is a qualified individual such that he can bring a
disability-discrimination claim, “[o]ur ADAAA roadmap is clearly articulated” as “a two-
part analysis.”
Hawkins, 778 F.3d at 887 (citations and quotation marks omitted). First,
we ask “whether the plaintiff can perform the essential functions of the job, i.e., functions
that bear more than a marginal relationship to the job at issue.”
Id. (alterations and
quotation marks omitted). And second, “if we conclude that Plaintiff is not able to
perform the essential functions of the job, we must determine whether any reasonable
accommodation by the employer would enable him to perform those functions.”
Id.
at 887–88 (alterations and quotation marks omitted).
a. Whether Adair Can Perform the Essential Functions of a Firefighter
In any disability-discrimination claim, the plaintiff must show that he is able to
perform the essential functions of his job. See id. at 884 (“We have consequently said that
under the ADAAA, a plaintiff is a qualified individual as long as he can perform a job
offered by the employer that he desires.” (alterations and quotation marks omitted)). The
ADAAA’s implementing regulations, promulgated by the EEOC, provide that “[t]he term
essential functions means the fundamental job duties of the employment position the
individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1) (2015). “[O]ur
18
disability-discrimination caselaw explicitly incorporates the EEOC’s regulations and
counsels in favor of deference to an employer’s judgment concerning essential
functions.” Hawkins, 778 F.3d at 884–85 (citations and footnote omitted). To determine
whether a particular function is essential, we consider, among other things, (1) the
employer’s judgment as to which functions are essential; (2) written job descriptions;
(3) the time spent performing the particular function; (4) the consequences if the
individual cannot perform the function; (5) any collective-bargaining agreement; (6) the
work experience of those in the position in the past; and (7) the current work experience
of those in similar positions. 29 C.F.R. § 1630.2(n)(3).
Thus, “the employer describes the job and functions required to perform that
job,” and we defer to the employer’s description. Mason v. Avaya Commc’ns, Inc.,
357 F.3d 1114, 1119 (10th Cir. 2004). As we have explained, “the essential function
‘inquiry is not intended to second guess the employer or to require the employer to
lower company standards.’”
Id. (quoting Tate v. Farmland Indus., Inc.,
268 F.3d 989,
993 (10th Cir. 2001)). Indeed, “[w]e will not second guess the employer’s judgment
when its description is job-related, uniformly enforced, and consistent with business
necessity.”
Id. In disability-discrimination cases, it is not our job as a court to “sit as
a super personnel department that second guesses employers’ business judgments.”
Id. at 1122 (quotation marks omitted). “But the employer’s judgment is not
conclusive evidence.” EEOC v. Picture People, Inc.,
684 F.3d 981, 997 (10th Cir.
2012). As we have explained,
19
despite our usual deference to an employer’s adoption of qualifications
based on its judgment and experience, we have firmly held that “an
employer may not turn every condition of employment which it elects to
adopt into a job function, let alone an essential job function, merely by
including it in a job description.”
Hawkins, 778 F.3d at 889 (quoting Picture
People, 684 F.3d at 997). Still, “[w]e
weigh heavily the employer’s judgment regarding whether a job function is
essential.” Hennagir v. Utah Dep’t of Corr.,
587 F.3d 1255, 1262 (10th Cir. 2009)
(emphasis added).
Here, Adair contends that he is qualified for the position he seeks because he can
perform the physical requirements of his job as the HazMat Director—indeed, he asserts
that he “is (and was) capable of doing his job for Defendant.” Appellant’s Opening Br.
at 13 (emphasis in original). Adair argues that the district court considered him
unqualified for the position only because of the Department’s improper no-restrictions
policy. But Adair asserts that the no-restrictions policy was an improper qualification
standard and that “the ADA requires that physical requirements for the job, rather than
lack of medical impairments, be the legal test.” Id. Adair does not contend that he sought
accommodations for his lifting restrictions, but argues only that the Department applied
an illegal standard to determine whether he was qualified for the position.
As previously discussed, the Oklahoma Administrative Code has outlined the
essential functions of a firefighter and incorporates a lifting requirement into that
description. In its “[d]escription of essential functions of all eligible firefighters,” the
Oklahoma Administrative Code provides that all firefighters must be able to
“search[], find[], and rescue-drag[] or carry[] victims ranging from newborns up to
20
adults weighing over 200 lb to safety despite hazardous conditions and low
visibility.” Okla. Admin. Code § 270:10-1-7(6) (emphasis added). Adair focused his
argument on the Oklahoma Administrative Code’s performance-and-agility test,
which requires that firefighters “given a weight of 125 lb. (57 kg.)[,] shall lift the
weight from the floor and carry the weight 100 ft. . . . without stopping.” Id.
§ 270:10-1-6(c)(5). But he fails to discuss his ability to rescue-drag or carry victims
weighing up to 200 pounds to safety, which Oklahoma has determined is an essential
function for all of its firefighters. The functional-capacity evaluation determined that
Adair’s maximal lifting capacity was capped at only 105 pounds occasionally and 90
pounds frequently. Obviously, that’s less than what Oklahoma requires for its
firefighters.
Adair argues that the Department also added into the Oklahoma Administrative
Code a no-restrictions policy for firefighters in the City. Specifically, Adair testified that
the Department had a policy that “ha[d] been talked about at the fire department for
years” that firefighters could not have any “lifting restrictions.” Appellant’s App.
at 51. His “understanding” was that “in order to work as a fireman, you have to have
unlimited restrictions and you need to be able to lift any amount of weight.” Id. Adair
argues that this no-restrictions policy is an improper qualification standard. But the City
hasn’t here required someone to lift an unreasonable amount of weight, and Adair offers
no evidence that the policy was applied solely to him or imposed for a discriminatory
purpose. In fact, Adair even testified that he was unsurprised that the City enforced the
policy against him after he shared the results of his functional-capacity evaluation with
21
the Fire Chief. Nothing suggests that the City has enforced the no-restrictions
requirement unreasonably or not applied it consistently across the Department. See
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003) (“Provided that any
necessary job specification is job-related, uniformly enforced, and consistent with
business necessity, the employer has a right to establish what a job is and what is required
to perform it.”).
Importantly, the risks involved in firefighting “strike at the heart of another factor
used to determine whether a job function is essential: the consequences of not requiring
an employee to perform the function.” Hennagir, 587 F.3d at 1263. Here, common sense
should prevail. If a firefighter can lift only 105 pounds occasionally and 90 pounds
frequently, the City would substantially risk that firefighter’s being unable to rescue
someone or severely injuring himself during a fire. Indeed, the federal regulations even
mention the dire consequences of a firefighter being unable to perform essential functions
of the job: “[A]lthough a firefighter may not regularly have to carry an unconscious adult
out of a burning building, the consequence of failing to require the firefighter to be able
to perform this function would be serious.” 29 C.F.R. app. § 1630.
Still, Adair asserts that he was qualified for his job as HazMat Director
because during his four years in that job, he had “never performed firefighting or
other firefighter duties, other than being director of the [HazMat] operation.”
Appellant’s Opening Br. at 3. But that leaves unchanged the state’s requirements
applying to all firefighters. Moreover, Adair acknowledged to his doctors that “his
job duties as a firefighter for the City . . . are to: walk, run, lift, push, pull, bend,
22
carry, climb and squat.” Appellant’s App. at 60 (emphasis added). Regardless of a
specialized title within a specific fire department, all Oklahoma firefighters “must
meet minimum medical requirements . . . to perform the essential functions of fire
suppression, prevention and life safety.” Okla. Admin. Code § 270:10-1-7. And all
three doctors’ reports stated that Adair could not perform these duties: Dr. Rodgers
concluded that Adair “is at risk to go back to work in any position that requires him
to bend, stoop, or lift 75 to 125 pounds,” Appellant’s App. at 74; Dr. Baker opined
that Adair “cannot perform the duties of a firefighter, limited by his back pain with
minimal exertion/movement,” id. at 76; and Dr. Hicks concluded that Adair “has
permanent restrictions” and “[d]ue to pain he cannot perform the duties of a
firefighter safely,”
id. at 98.
Given his back injury and the doctors’ findings, Adair no longer has an ability
to perform the state-mandated essential functions of a firefighter. As we have said in
the past, “[w]e are reluctant to allow employees to define the essential functions of their
positions based solely on their personal viewpoint and experience.” Mason, 357 F.3d
at 1122. Adair offers nothing but his personal experience to argue that his role does not
require him to lift heavy objects. That’s not enough. Though Adair may not regularly
fight fires as HazMat Director, he is still a firefighter and can be called to the scene to
respond to a fire with hazardous materials. We addressed a similar circumstance in
Frazier v. Simmons,
254 F.3d 1247 (10th Cir. 2001). In Frazier, a crime-scene
investigator challenged the district court’s conclusion that his job’s essential functions
included being able to run, carry a firearm, and physically restrain offenders. Frazier,
23
254 F.3d at 1250–51. We agreed with the district court that these were essential
functions, regardless of how infrequently a crime-scene investigator may have to do
them. We explained that even “assuming that an investigator may be required to perform
these physical activities infrequently, the potential for physical confrontation with a
suspect exists any time [the plaintiff] conducts a crime scene investigation.”
Id. at 1260;
see Martin v. Kansas,
190 F.3d 1120, 1132 (10th Cir. 1999) (recognizing “the potentially
dire consequences” of not requiring a corrections officer to be able to run, restrain violent
offenders, or respond to emergencies), overruled on other grounds by Bd. of Trustees of
Univ. of Ala. v. Garrett,
531 U.S. 356 (2001), as recognized in Starkey ex rel. A.B. v.
Boulder Cty. Soc. Servs.,
569 F.3d 1244, 1259–60 (10th Cir. 2009).
Similarly, in Cremeens v. City of Montgomery, 427 F. App’x 855 (11th Cir. 2011)
(per curiam) (unpublished), a Fire Investigator challenged a district court’s determination
that fire suppression was an essential function of his role as a Fire Investigator.
Analogously to Frazier, the Eleventh Circuit rejected the plaintiff’s argument. As that
court explained,
Fire Investigators may engage in fire suppression activities infrequently,
but that does not mean firefighting is a nonessential function of the
position. Indeed, the firefighting function is essential whenever the need
arises, and the consequences of not requiring a Fire Investigator to engage
in fire suppression activities when necessary could be dire.
Cremeens, 427 F. App’x at 858. The Fifth Circuit has also addressed a similar situation
with an injured firefighter and held that “given the physical demands of being a
firefighter, and the fact that [the plaintiff’s] treating physician indicated that he could
never be released to perform those duties again, there is no question that [the plaintiff]
24
does not meet the first prong” that requires him to be able to perform the essential
functions of a firefighter. Burch v. City of Nacogdoches, 174 F.3d 615, 619–20 (5th Cir.
1999).
Thus, we follow Frazier and our sister circuits’ lead, rejecting Adair’s argument
that he is not a firefighter and is not required to suppress fires as the HazMat Director.
The Department, the City, and the State of Oklahoma have weighed the risks of a
firefighter’s inability to respond when necessary and decided that fire rescue is an
essential function for all firefighters, even for those with specialized roles. We will not
second guess their decision. Accordingly, we conclude that Adair cannot satisfy the
essential functions of his role as a firefighter.
b. Whether the City Could Reasonably Accommodate Adair
Having concluded that Adair is unable to perform the essential functions of a
firefighter, we next ask whether the City could reasonably accommodate Adair as a
firefighter with his lifting restrictions. The burden is on Adair to show the existence of a
reasonable accommodation. Mason, 357 F.3d at 1122 (“To defeat an employer’s motion
for summary judgment, the employee must first demonstrate that an accommodation
appears reasonable on its face.”). Here, Adair has failed to show a reasonable
accommodation that the City could make.
Where a plaintiff is unable to perform the essential functions of his job, the
plaintiff must show that the employer could accommodate his disability and that such an
accommodation would be reasonable. Id. The ADAAA provides that a “‘reasonable
accommodation’ may include”:
25
(A) making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment
to a vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training materials
or policies, the provision of qualified readers or interpreters, and other
similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9). If the plaintiff demonstrates a reasonable accommodation, “[t]he
burden of production . . . shifts to the employer to present evidence of its inability to
accommodate.” Mason, 357 F.3d at 1122. Where the employer satisfies that burden, the
burden then shifts back to the plaintiff to proffer “evidence concerning h[is] individual
capabilities and suggestions for possible accommodations to rebut the employer’s
evidence.”
Id.
Here, Adair does not suggest any accommodations that the City could have made
to retain him as a firefighter. Rather, he asserts that he should be able to continue in his
role as HazMat Director because he sees himself as “capable of doing his job for
Defendant.” Appellant’s Opening Br. at 13. As discussed above, we disagree. Regardless
of his specialized title, Adair is still a firefighter and seeks to be retained as such. Instead
of asking for an accommodation for his lifting restrictions, Adair is essentially asking us
to force the City to retain a firefighter who cannot perform essential functions of that job
that have been uniformly imposed on every other firefighter in the state. That’s not
reasonable. “We have consistently held . . . that an employee’s request to be relieved
from an essential function of h[is] position is not, as a matter of law, a reasonable or even
plausible accommodation.”
Mason, 357 F.3d at 1122; see
Frazier, 254 F.3d at 1261
26
(“Although job restructuring is a possible accommodation under the Disabilities Act,
‘[a]n accommodation that eliminates the essential function of the job is not reasonable.’”
(quoting Smith v. Blue Cross Blue Shield of Kan., Inc., 102 F.3d 1075, 1076 (10th Cir.
1996))). Simply put, an employer need not “modify an essential function of an existing
position in order to accommodate a disabled employee.”
Mason, 357 F.3d at 1123.
Aside from asserting that he is capable of performing purely as HazMat Director,
Adair also has not identified any possibility of reassignment to a vacant, nonfirefighting
position within the Department. See Donahue v. Consol. Rail Corp., 224 F.3d 226, 234
(3d Cir. 2000) (holding that “in a failure-to-transfer case, if, after a full opportunity for
discovery, the summary judgment record is insufficient to establish the existence of an
appropriate position into which the plaintiff could have been transferred, summary
judgment must be granted in favor of the defendant—even if it also appears that the
defendant failed to engage in good faith in the interactive process”). Indeed, Adair
testified that he did not know of “any other places that [he] could have worked within the
fire department with [his] lifting restriction,” “except [his] job” as HazMat Director.
Appellant’s App. at 173.
Thus, because Adair is unable to perform the essential functions of a firefighter
and has not shown that the City could reasonably accommodate him, Adair’s disability-
discrimination claim fails as a matter of law. Regardless of whether the City regarded
Adair as having an impairment, Adair cannot maintain a disability-discrimination claim
under the ADAAA if he is not a qualified individual. Adair therefore failed to establish a
prima facie case of disability discrimination under the ADAAA, and the district court
27
correctly granted summary judgment to the City on Adair’s disability-discrimination
claim.
C. Adair’s Medical-Examination Claim
Next, Adair argues that the City violated the ADA by forcing him to complete
the functional-capacity evaluation, which he contends was “an improper medical
examination.” Appellant’s Opening Br. at 15. Adair argues that the City violated
42 U.S.C. § 12112(d)(4) because the evaluation was involuntary, not job-related, and
not a business necessity. The City responds that “[t]here is no dispute that the testing
Plaintiff refers to was in conjunction with his workers’ compensation claim, so it was
necessary by definition, and the Trial Court properly agreed.” Appellee’s Resp. Br.
at 19. The City is correct.
Like the definition of a qualified individual, the ADAAA did not change the
nature of the ADA’s prohibition against forced medical examinations. Compare
ADAAA, § 4, with 42 U.S.C. § 12112 (d)(2)–(4). The ADAAA covers medical
examinations in three instances: (1) pre-employment, (2) post-offer of employment,
and (3) during the employment relationship. 42 U.S.C. § 12112(d)(2)–(4). Here, we
are concerned only with examinations during the employment relationship.
During the employment relationship, the ADAAA “permit[s] employers to
conduct certain medical inquiries and examinations.” C.R. Eng., Inc., 644 F.3d
at 1046 (emphasis in original). Specifically, the ADAAA provides that an employer
(1) “may conduct voluntary medical examinations, including voluntary medical histories,
which are part of an employee health program available to employees at that work site”;
28
and (2) “may make inquiries into the ability of an employee to perform job-related
functions.” 42 U.S.C. § 12112(d)(4)(B). But an employer:
shall not require a medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a disability or
as to the nature or severity of the disability, unless such examination or
inquiry is shown to be job-related and consistent with business necessity.
Id. § 12112(d)(4)(A).
As the Second Circuit has noted, “[r]elatively little case law concerns the
proper interpretation of business necessity in this context.” Conroy v. N.Y. State
Dep’t of Corr. Servs., 333 F.3d 88, 97 (2d Cir. 2003). But the EEOC has interpreted
the ADAAA as permitting an employer to “make inquiries into the ability of an
employee to perform job-related functions.” 29 C.F.R. § 1630.14(c). Summarizing
existing precedent on the subject, the Second Circuit has explained that “courts will
readily find a business necessity if an employer can demonstrate that a medical
examination or inquiry is necessary to determine . . . whether the employee can
perform job-related duties when the employer can identify legitimate, non-
discriminatory reasons to doubt the employee’s capacity to perform his or her
duties.”
Conroy, 333 F.3d at 98; see Conrad v. Bd. of Johnson Cty. Comm’rs,
237 F. Supp. 2d 1204, 1230 (D. Kan. 2002) (explaining that “[a]n employer’s request
that an employee undergo a medical examination must be supported by evidence that
would ‘cause a reasonable person to inquire as to whether an employee is still
capable of performing his job’” (alteration omitted) (quoting Sullivan v. River Valley
Sch. Dist.,
197 F.3d 804, 811 (6th Cir. 1999))).
29
Here, Adair—not the City—put his ability to perform his job at issue. The City did
not seek out the functional-capacity evaluation; it was a part of Adair’s workers’
compensation claim. The evaluation and any later medical examinations took place
only because Adair was seeking workers’ compensation benefits. Adair does not
argue this point. Rather, Adair argues that the evaluation was neither job-related nor
consistent with business necessity since the evaluation did not measure the specific
quantifications outlined in the Oklahoma Administrative Code. But where, as here, an
employee has sought workers’ compensation benefits based on a potential permanent
or temporary physical impairment, an employer has a valid business interest in
determining whether the employee is actually able to perform the essential functions
of his job. We fail to see how the evaluation’s inquiry into Adair’s lifting capabilities
and general physical fitness, which we have already determined measure essential
functions of his job, could be anything but job-related and consistent with business
necessity. Adair has not presented evidence rebutting the City’s argument that the
evaluation was directly related to his workers’ compensation claim and a measure of
his ability to perform the essential functions of his job.
In short, the functional-capacity evaluation was both job-related and consistent
with business necessity. Accordingly, Adair has failed to establish that the evaluation
violated 42 U.S.C. § 12112(d)(4). The district court properly granted summary
judgment to the City on this claim.
30
D. Adair’s Retaliatory-Discharge Claim
Adair next contends that the district court erred in granting summary judgment
to the City on his retaliatory-discharge claim. Adair argues that the district court
failed to consider his proffered evidence that his workers’ compensation award was
the impetus for his termination, and therefore, that the district court erred in its
causation analysis. The City responds that the district court properly granted
summary judgment for three reasons: (1) temporal proximity alone is insufficient;
(2) a non-retaliatory reason exists to justify Adair’s termination, and Adair offered
insufficient evidence to show the non-retaliatory reason was pretext; and (3) Adair
was unqualified to continue employment as a firefighter.3 Again, we agree with the
City.
1. Oklahoma’s Retaliatory-Discharge Law
As a threshold matter, we conclude that Adair was not discharged but chose to
retire. But where an employee can show that he was faced with a choice of resigning
or being fired, Oklahoma allows a claim of constructive discharge. See Buchanan v.
Sherrill, 51 F.3d 227, 229 (10th Cir. 1995) (“Constructive discharge is now a
3
Alternatively, the City argues that Adair should be precluded from bringing
his retaliatory-discharge claim based on equitable estoppel and waiver. The City also
argues failure of causation as a matter of law. We find it unnecessary to discuss these
arguments because we affirm the district court’s decision on other grounds. Stickley
v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007) (“[W]e may
‘affirm a district court decision on any grounds for which there is a record sufficient
to permit conclusions of law, even grounds not relied upon by the district court.’”)
(quoting United States v. Sandoval,
29 F.3d 537, 542 n.6 (10th Cir. 1994)).
31
recognized cause of action in Oklahoma, at least when the plaintiff’s employment has
terminated.”).
Adair filed his retaliatory-discharge claim under Oklahoma law. The
Oklahoma Workers’ Compensation Act prohibits an employer from terminating an
employee for initiating a workers’ compensation claim. Okla. Stat. tit. 85, § 341(A).
But it also provides that “[a]fter an employee’s period of temporary total disability
has ended, no employer shall be required to rehire or retain any employee who is
determined to be physically unable to perform assigned duties.” Id. § 341(C). If an
employer discharges such an employee, the employer’s decision “shall not be deemed
a violation of this section.”
Id.
Like federal courts, Oklahoma has adopted a burden-shifting framework for
retaliatory-discharge claims. See Buckner v. Gen. Motors Corp.,
760 P.2d 803,
806–07 (Okla. 1988). First, “[a] plaintiff must make a prima facie case of retaliatory
discharge by providing evidence that shows that filing of a claim . . . was a
significant factor in the employee’s termination from employment.” Wilson v. Hess-
Sweitzer & Brant, Inc.,
864 P.2d 1279, 1284 (Okla. 1993). To establish a prima facie
case, the employee must show “1) employment; 2) a job related injury; 3) medical
treatment so that the employer is put on notice or a good faith start of Workers’
compensation proceedings[; and] 4) consequent termination.” Wallace v. Halliburton
Co.,
850 P.2d 1056, 1059 (Okla. 1993) (emphasis in original). According to the
Oklahoma Supreme Court, “whether there was a consequent termination is dependent
upon the employee producing evidence as would give rise to a legal inference [that]
32
the discharge was significantly motivated by retaliation for the employee exercising
statutory rights.” Id. (emphasis in original).
Once a plaintiff establishes a prima facie case of discrimination, “the burden
then appropriately shifts to the employer to rebut the inference that its motives were
retaliatory by articulating that the discharge was for a legitimate non-retaliatory
reason.” Buckner, 760 P.2d at 806. A non-retaliatory reason may be “the employee’s
inability to perform the assigned duties, or the bad faith pursuit of a compensation
claim.”
Id. at 806–07. “If the employer carries this burden of production, the
presumption raised by the prima facie case is rebutted, and the factual inquiry
proceeds to a new level of specificity.”
Id. at 807.
When the burden shifts back to the plaintiff, the burden “merges with the
[plaintiff’s] ultimate burden of persuading the court that []he has been the victim of
retaliatory discharge.” Id. The employee may satisfy his ultimate burden “either
directly by persuading the court that the discharge was significantly motivated by
retaliation for h[is] exercise of statutory rights, or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.”
Id. The Oklahoma
Supreme Court has further explained that although an employee need not meet a “but
for” standard, “the evidence must do more than show that the filing of the claim was
only one of many possible factors resulting in his discharge.”
Wallace, 850 P.2d
at 1059.
33
2. Adair Cannot Rebut the City’s Non-Retaliatory Reason for Discharge
In this case, Adair relies on the timing of his termination and the grant of his
workers’ compensation award to show that the City retaliated against him. As Adair
points out, the functional-capacity evaluation indicated that Adair had a lifting
restriction in fall 2012, but he was not terminated until March 2014, which was the
month that he received his workers’ compensation award. Adair testified that on
March 17, 2014, the Fire Chief “had the workers’ comp award in his hand and told
[Adair] that the workers’ comp had said [Adair] had permanent restrictions on their
workers’ comp award, so [the Chief] was terminating [Adair’s] employment as of
5:00 on March the 21st, 2014.” Appellant’s App. at 173. Adair further testified that
the Fire Chief told him that Adair “had to get the lifting restrictions removed” and
gave him a choice of being fired or retiring. Id. Based on this timing, Adair argues
that “a jury could find that the motivation of Defendant was the workers’
compensation award and that the termination was in retaliation therefor.” Appellant’s
Opening Br. at 21.
But as the City points out, temporal proximity is not enough. To establish a
prima facie case of discrimination, a plaintiff has to offer something more. See
Wallace, 850 P.2d at 1059 (“[T]iming may be evidence of a retaliatory discharge. . . .
However, timing does not by itself give rise to the level of evidence required to
establish a prima facie case.” (emphasis in original)). Adair argues that the
“something more” is the Fire Chief’s mentioning the award, which, Adair says, was
the “impetus” for his termination. But Adair doesn’t offer evidence that the City
34
terminated him because of the award itself. Contrary to Adair’s assertion, the City’s
Human Resources Manager did not testify that the award itself was the impetus for
his termination—she testified that the City relied on the Oklahoma Workers’
Compensation Court’s finding of “permanent disability” in concluding that Adair
could no longer serve as a firefighter. Appellant’s App. at 194. Regardless, we will
assume that Adair satisfied his burden of showing “a consequent termination” by
“producing evidence as would give rise to a legal inference [that] the discharge was
significantly motivated by retaliation for the employee exercising statutory rights.”
Wallace, 850 P.2d at 1059 (emphasis in original). Assuming Adair presented a prima
facie case of retaliatory-discharge, we next ask whether the City offered a non-
discriminatory reason for his termination and, if so, whether Adair has showed that
the City’s non-retaliatory reason is pretext.
As previously discussed, the City has offered ample evidence that Adair was
physically unable to perform his duties as a firefighter given his lifting restrictions.
Indeed, his own doctors concluded that he could not perform the duties of a
firefighter. Adair’s inability to perform a firefighter’s duties constitutes a legitimate,
non-retaliatory reason for his termination. See Buckner, 760 P.2d at 806–07 (offering
“the employee’s inability to perform the assigned duties” as an example of a non-
retaliatory reason for discharge); Keddington v. City of Bartlesville,
42 P.3d 293, 298
(Okla. Civ. App. 2001) (holding that “once the employee’s [temporary-total-
disability] period has ended, and the employee is determined to suffer some
permanent physical disability which prevents the discharge of assigned duties for the
35
employer, the employer bears no § [341] liability for then terminating the employee
under [§ 341(C)].”). Thus, the City satisfied its burden.
At this point, the burden shifts back to Adair to show that the City’s non-
retaliatory reason was pretext. Rather than arguing that the City’s reason was pretext,
Adair argues that he was discharged based on an improper qualification standard,
namely, the Department’s no-restrictions policy. But we have already determined that
Adair could not meet the physical requirements of a firefighter in Oklahoma. No
matter the specific role or job title that Adair had at the fire station, he was still a
firefighter, and the State, City, and Department had physical-fitness standards that
firefighters have to meet. Adair has failed to show that he could meet those standards.
Thus, Adair cannot show that his discharge was “significantly motivated” by
the workers’ compensation award or that the City’s terminating Adair for his failure
to meet the physical-fitness standard for firefighters is “unworthy of credence.”
Buckner, 760 P.2d at 807. The City paid Adair during his two years of leave, even
though he wasn’t working, until the City could be sure that Adair wouldn’t be able to
perform his duties as a firefighter. The Oklahoma Workers’ Compensation Court
made that determination, and only then did the City know that Adair could not return
to the Department as a firefighter. Accordingly, the district court properly granted
summary judgment to the City on Adair’s retaliatory-discharge claim.
E. Initial Disclosures
Finally, Adair argues that the district court improperly required Adair to
compute the damages he sought for pain and suffering and emotional distress in
36
Adair’s initial disclosures. Because we affirm the district court’s grant of summary
judgment to the City on all of Adair’s claims, we need not address this issue. The
computation of damages in the initial disclosures has no bearing on the summary-
judgment order.
CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judgment for the City on all of Adair’s claims.
37
